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DANIEL v. AMERICAN BD. OF EMERGENCY MED.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


August 6, 1992

GREGORY F. DANIEL, M.D., Plaintiff,
v.
AMERICAN BOARD OF EMERGENCY MEDICINE, et al. Defendants.

ARCARA

The opinion of the court was delivered by: RICHARD J. ARCARA

ORDER

This matter was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(B), for report and recommendation on defendants' motions to dismiss. Magistrate Judge Foschio filed his Report and Recommendation on February 25, 1992, granting defendants' motions in part and denying them in part. Specifically, he recommended that defendants' motion to dismiss for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), be granted without prejudice as to all individually named defendants except Henry A. Thiede, M.D., a New York resident. He also recommended that defendants' motions to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), be denied.

 Defendants' have filed objections to those parts of the Report and Recommendation that deny their Rule l2(b)(1) and 12(b)(6) motions. *fn1" Plaintiff has filed no objections.

 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. The Court has reviewed the Report and Recommendation, the submissions of the parties, and has heard argument from counsel. *fn2" Upon de novo review, the Court adopts the findings of the Report and Recommendation and orders that defendants' Rule 12(b)(1) and 12(b)(6) motions be denied.

 In deciding a motion to dismiss, the court is required to accept plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint will be dismissed only if "it appears beyond doubt" that plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

 Applying these principles to this case, the Court finds that it has subject matter jurisdiction and that plaintiff has stated a claim for violations of sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1, 2. The Court also finds that while plaintiff's cause of action for violations of New York's Human Rights Law, N.Y. Exec. Law § 290 et seq., is not as clearly alleged as the antitrust claims, and there is a question as to whether defendants are even subject to the law's provisions, at this point in the lawsuit, plaintiff has made sufficient factual allegations to withstand defendant's motion. *fn3" Defendants' motions are denied for the reasons set forth by Magistrate Judge Foshio in his Report and Recommendation.

 It is so ordered.

 HONORABLE RICHARD J. ARCARA

 UNITED STATES DISTRICT JUDGE

 Dated: August 6, 1992


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