The opinion of the court was delivered by: MOTLEY
Plaintiff is a non-profit New York corporation organized for the purpose of reducing the number of homeless and unwanted cats and dogs which create problems in both urban and rural areas. Its principal program is inducing owners of mixed breed cats and dogs to have their female animals spayed, thus reducing the high incidence of homeless animals in the community. Plaintiff solicits funds throughout the country for its nationwide educational program and to pay fees to cooperating veterinarians who perform the spaying service for qualified low income families at reduced rates.
Alleging that defendants have engaged in an unlawful combination and conspiracy to unreasonably restrain plaintiff's charitable activities throughout the country by fixing and enforcing upon veterinarians minimum fee schedules and by maintaining and enforcing a uniform policy with respect to the granting of discounts to poor persons, plaintiff brings this action for injunction and damages in reliance upon 15 U.S.C. §§ 1, 15 and 26.
The action is brought against the American Veterinary Medical Association (AVMA), the New York State Veterinary Medical Society (NYSVMS), two New York county veterinary organizations and the Veterinary Medical Association of New York City.
The complaint alleges that the NYSVMS acts as agent for AVMS in New York State (including among its activities for AVMA the solicitation of members and the collection of membership dues) and that the county and city organizations act as agents for the state and national organizations in their respective counties and in New York City.
AVMA has moved to dismiss the complaint on the ground that venue in this district as to it is improper and the extraterritorial service upon it is, consequently, improper.
The applicable venue and service provisions are found in 15 U.S.C. § 22 which provides:
Any suit, action or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.
From the affidavits submitted upon this motion, it is undisputed that AVMA is not an "inhabitant" of this District. AVMA is a non-profit Illinois corporation with its principal place of business in Chicago and is, therefore, an "inhabitant" of Illinois. See United States v. Scophony Corp., 333 U.S. 795, 809, 818-819, 92 L. Ed. 1091, 68 S. Ct. 855 (1948).
The next question then is whether AVMA by virtue of its activities in the Southern District of New York is "found or transacts business" here. The "transacting business" test can be met by fewer local contacts than the "doing business" test, the latter being the same as the "found" test. Friedman v. United States Trunk Co., 30 F.R.D. 148 (S.D.N.Y. 1962); Raul International Corp. v. Nu-Era Gear Corp., 28 F.R.D. 368 (S.D.N.Y. 1961); Abrams v. Bendix Home Appliances, Inc., 96 F. Supp. 3 (S.D.N.Y. 1951). Consequently, venue would be proper in this District if "in fact, in the ordinary and usual sense" AVMA transacts business here of any "substantial character." United States v. Scophony Corp., supra, at 807; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 71 L. Ed. 684, 47 S. Ct. 400 (1927). This test of venue under section 22 is "the practical, everyday business or commercial concept of doing business or carrying on business 'of any substantial character.'" Banana Distributors, Inc. v. United Fruit Co., 269 F.2d 790, 794 (2d Cir. 1959). From the undisputed facts set forth below, the court concludes that AVMA has transacted business here but it has not been of such "substantial character" as to make suit against it proper in this Distirct.
AVMA is a relatively small non-profit professional association. In 1968 AVMA membership totaled less than 20,000, i.e., 19,745. Membership is available to doctors of veterinary medicine in this and foreign countries, and includes veterinarians in private practice, in the academic communities, in the military and in government service.
At AVMA's headquarters in Chicago there is a staff of 37 which includes 6 professionals and 4 non-professional managerial employees. The only other office maintained by AVMA is in Washington, D.C. which is staffed by one administrative employee. That office concerns itself exclusively with congressional and federal administrative activities which affect the profession.
AVMA has no office in this District which includes New York City. It does not have any paid or unpaid employee acting for it in this District. AVMA is not licensed to do business in New York State and has no agent in this State for the service of process upon it.
AVMA is governed by its Executive Board and House of Delegates. The present Executive Board member representing the AVMA district of which the Southern District of New York is a part does not reside in or practice in the Southern District of New York. The House of Delegates is made up of representatives from each state affiliate. The present representative to the AVMA House ...