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DANIEL v. AMERICAN BD. OF EMERGENCY MED.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


January 16, 1996

GREGORY F. DANIEL, M.D., et al., Plaintiffs,
v.
AMERICAN BOARD OF EMERGENCY MEDICINE, HENRY A. THIEDE, M.D., FRANK A. DISNEY, M.D., COUNCIL OF EMERGENCY MEDICINE RESIDENCY DIRECTORS, CHILDREN'S HOSPITAL (SAN DIEGO), CHILDREN'S HOSPITAL OF MICHIGAN, DETROIT RECEIVING HOSPITAL AND UNIVERSITY HEALTH CENTER, FORSYTH MEMORIAL HOSPITAL, THE JOHNS HOPKINS HOSPITAL, PART OF THE JOHNS HOPKINS HEALTH SYSTEM, KETTERING MEDICAL CENTER, LINCOLN MEDICAL & MENTAL HEALTH CENTER, LOMA LINDA UNIVERSITY MEDICAL CENTER, LUTHERAN GENERAL HOSPITAL, MEDICAL COLLEGE OF PENNSYLVANIA AND HOSPITAL, MERCY CATHOLIC MEDICAL CENTER-MISERICORDIA DIVISION, MERCY HOSPITAL AND MEDICAL CENTER, METHODIST HOSPITAL OF INDIANA, OHIO STATE UNIVERSITY HOSPITAL, OREGON HEALTH SCIENCES UNIVERSITY HOSPITAL, OUR LADY OF MERCY MEDICAL CENTER, PORTER MEMORIAL HOSPITAL, RIVERSIDE METHODIST HOSPITALS, SAINT FRANCIS MEDICAL CENTER, ST. ANTHONY HOSPITAL, TRI-CITY MEDICAL CENTER, UCLA MEDICAL CENTER, UNIVERSITY OF CALIFORNIA (IRVINE) MEDICAL CENTER, UNIVERSITY OF CALIFORNIA (SAN DIEGO) MEDICAL CENTER, UNIVERSITY HOSPITAL-SUNY AT STONY BROOK, UNIVERSITY HOSPITAL AT THE UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, UNIVERSITY OF MASSACHUSETTS MEDICAL CENTER, and UNIVERSITY MEDICAL CENTER (TUCSON), Defendants.

[EDITOR'S NOTE: PART 2 OF 2. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]

m. Ohio State University Hospital

Ohio State University Hospital's contacts with New York include (1) use of New York's media and advertising, involving two segments on Good Morning America a national weekday television program, a Wall Street Journal article, and advertisements in the New York Times and Wall Street Journal for job openings, (2) use of a local advertising agency with a New York office, for purposes of utilizing the agency's relationship with the New York office, (3) receipt, from 1991 to 1993, of nearly $ 200,000 in gross revenues from the treatment of New York patients, (4) charitable contributions received from New York sources, *fn101" (5) a contract with Supplemental Health Care Services Ltd., a New York agency, from 1989 to 1993, to provide temporary registered nurse staffing, *fn102" (6) defense of a lawsuit pending in Richmond County, New York; in connection with this suit, the university hospital retained the services of a New York attorney, (7) participation, in 1989 to 1990, by two of the hospital's physicians in a multi-center trial (a medical study) which included a study site in Syracuse, New York, and travel by one of the physicians to New York in connection with this trial, and (8) travel to New York by Dr. Hagop Mekhjian, the medical director of Ohio State University Hospital and some of his colleagues in connection with their professional activities. Plaintiffs' Memorandum of Law at III-28 -III-32.

Since July of 1990, Ohio State University Hospital has treated seventy patients from New York, from over 110,000 total patients. Ohio State University Hospital's Memorandum of Points and Authorities, filed May 2, 1994, p. 24.

 n. Oregon Health Sciences University Hospital

 Oregon Health Sciences University Hospital's contacts with New York include (1) receipt of over $ 565,000 in charitable contributions from New York sources between 1987 and 1994, (2) gross revenues of $ 359,132 for the treatment of New York patients from 1987 to 1994, (3) the fact that the hospital may have received payment from third-party sources in New York for the treatment of New York patients, (4) the hospital's participation in four clinical studies with New York organizations, including the University of Rochester, and contractual relationships with each New York entity with respect to these studies, *fn103" (5) travel to New York by members of its faculty to attend professional meetings, (6) advertising job opportunities for physicians and faculty members in national medical journals and other publications that may be distributed in New York, (7) the hospital's listing in the Green Book, (8) the fact that since 1991, seventeen residents who practiced at the hospital, and ten physicians hired by it attended a New York medical school or listed a New York home address, (9) receipt by the hospital, from 1992 to 1994, of ninety-six applications to its emergency medicine residency program from medical students in New York, and (10) the fact that from academic 1991/1992 through academic 1993/1994, five physicians from New York filed applications to its emergency department. Plaintiffs' Memorandum of Law at III-72 - III-73.

 o. Riverside Methodist Hospitals

 Riverside Methodist Hospitals' contacts include (1) raising through New York underwriters over $ 189 million through bond offerings issued by the County of Franklin, Ohio, *fn104" (2) travel by the current president/chief executive officer, chief financial officer, and chair of the finance committee of the hospitals to New York and his presence on the trading floor at the First Boston Corporation in connection with the sale of the hospitals' 1990B bonds, (3) having a New York investment account with over $ 23 million in September of 1989; Oppenheimer Capital Corporation, located in New York City, served as the investment manager of the account, (4) treatment, between 1990 and 1994, of 174 outpatients who provided New York zip codes, and of seventy-four inpatients from New York, between 1988 and 1993; also, between 1988 and 1990, 193 New York patients were treated in the hospitals' emergency room, *fn105" (5) billing patients treated from New York directly, (6) receipt of $ 50,193 in charitable contributions between 1988 and 1994 from 289 New York donors, (7) the fact that between 1988 and 1990, the hospitals' current president/chief executive officer and two other representatives visited New York to evaluate products, equipment and facilities design concepts, (8) travel by the hospitals' director of transitional residency to New York on its behalf for a meeting of the Alliance of Independent Medical Centers, (9) occasional contact and invitation of speakers from New York for weekly and monthly continuing medical education courses, (10) sending a representative in 1988, 1991, 1992, and 1993, from the hospitals' Human Resources Department to one or more job fairs or on-campus interview programs in the Western District of New York in order to recruit nurses, physical or occupational therapists, or technologists, *fn106" (11) sending recruiting materials concerning job opportunities to individuals who reside in New York through use of a national health professional society or a mailing list company, (12) advertising job opportunities for physicians and/or employees in the New York Times and the Wall Street Journal, as well as other medical journals and publications that are or may be distributed in New York, (13) listing its institution and residency programs in the Green Book, (14) the fact that since 1992, five graduates of New York medical schools have taken part in residency programs at Riverside, and (15) attendance at New York medical schools by two of the hospital's emergency department physicians. Plaintiffs' Memorandum of Law at III-23 - III-28.

 p. Saint Francis Medical Center

 Saint Francis Medical Center's contacts with New York include (1) its participation in a Group Purchasing Organization, of which Olean General Hospital, located in this district, has been a member since 1989, sponsored and administered by the medical center, pursuant to an agreement with the medical center, *fn107" (2) between 1987 and 1993, receipt by the center of at least $ 298,752 in revenues from the treatment of New York patients, *fn108" (3) issuance of $ 178,175,000 in bonds through New York facilities by the Illinois Health Facilities Authority for the Illinois institutions which comprise the OSF Healthcare System, including Saint Francis Medical Center, *fn109" (4) the fact that from 1983 to 1989, either the medical center or OSF Healthcare System maintained a bank account at Irving Trust to secure the bonds, the balance of this account ranged from $ 350,000 to over $ 600,000, (5) advertising for faculty positions in emergency medicine in national medical journals and the annual job and fellowship listing of the Emergency Residents Association, which is nationally distributed, (6) sending a direct mailing to potential candidates for emergency department faculty positions in 1988, (7) mailing its recruiting brochure to the deans of every medical school in the United States, (8) listing of the Saint Francis Medical Center and its residency programs in the Green Book, and (9) that fact that at least one resident who participated in a Saint Francis Medical Center residency program attended a New York medical school or was from New York. Plaintiffs' Memorandum of Law at III-59 - III-63.

 q. St. Anthony Hospital

 St. Anthony Hospital's contacts include (1) advertising medical and non-medical positions in nationally distributed publications, (2) recruiting for nursing positions through advertisements in the Albany Times Union and the Buffalo News, published in Albany and Buffalo, New York, respectively, (3) the fact that from 1991 to 1994, the hospital had four residents who attended New York medical schools, (4) the fact that fifty-two members of its current medical staff graduated from New York medical schools, (5) treatment, from 1991 to 1994, of 540 New York patients, and from May of 1990 to 1994 generating $ 1,229,364 in revenues from patients residing in New York, and (6) receiving several charitable contributions from New York sources totalling $ 7,895. Plaintiffs' Memorandum of Law at III-71 - III-72.

 r. Tri-City Medical Center (San Diego)

 Plaintiffs assert that Tri-City Medical Center (1) regularly advertises employment opportunities in national publications, (2) sent promotional materials regarding employment opportunities directly to New York, (3) treated seventy-three New York patients between 1987 and 1993, (4) allowed its interim chief executive officer to attend one seminar in New York, and (5) issued revenue bonds to the public at large, including New York residents. Plaintiffs' Memorandum of Law at III-81 - III-82.

 s. University of California (Los Angeles) Medical Center

 Plaintiffs advance several contacts to demonstrate that the University of California (Los Angeles) Medical Center should be subject to jurisdiction under the solicitation-plus doctrine, including (1) receipt of $ 5,486,286 in charges for services rendered to New York residents from fiscal 1991 to 1992 through fiscal 1993 to 1994, (2) attendance by its representatives at a nursing job fair in New York City in 1991, (3) sending materials describing its residency programs to New York medical schools, (4) advertising job opportunities in the New York Times and other national medical journals and publications, (5) receipt of $ 108,015 in charitable contributions from New York sources since 1988, (6) issuance of $ 136,530,000 in bonds in 1994 to refinance outstanding debt, including bonds issued in 1986 and 1990, *fn110" (7) serving as a founding member of the Academic Medical Center Consortium, *fn111" which was incorporated in New York in 1990 or 1991, and maintains its offices in Rochester, New York; contributing approximately $ 65,000 in annual dues to the consortium, and an additional $ 20-30,000 for its participation in specific studies, *fn112" and (8) service by Dr. Schultze, director of the medical center, chairman of the board of, and representing the medical center on the University Hospital Consortium, which also performs marketing research for its member institutions. *fn113" Plaintiffs' Memorandum of Law at III-73 - III-77.

 t. University of California (Irvine) Medical Center

 Plaintiffs state that University of California (Irvine) Medical Center (1) has treated 334 patients from New York resulting in over $ 900,000 in total revenues for the hospital, as well as payments by third-party sources, (2) has placed at least eighty advertisements in nationally distributed journals and other publications to fill nurses, clinicians, technologists, and other employee positions, and (3) recruits physicians by placing advertisements in nationally distributed journals. Plaintiffs' Memorandum of Law at III-82 - III-83.

 u. University of California (San Diego) Medical Center

 Plaintiffs contend that the University of California (San Diego) Medical Center (1) derives substantial revenues from providing services for New York patients, specifically, between fiscal 1990/1991 and fiscal 1993/1994, the medical center charged nearly $ 7 million to New York residents, (2) sends promotional materials to medical schools in New York, (3) advertised employment opportunities in the New York Times and other nationally distributed publications, (4) has two practicing physicians who are from New York or attended New York medical schools, and (5) received $ 67,929 in charitable contributions from New York donors between 1991 and 1994. Plaintiffs' Memorandum of Law at III-81.

 v. University Hospital at the University of New Mexico

 Plaintiffs allege that the University Hospital at the University of New Mexico has several contacts with New York which allow personal jurisdiction under the solicitation-plus doctrine, including the fact that, (1) its receipt of $ 4,797,792 in charitable contributions from New York sources between fiscal 1987-1988 and fiscal 1992-1993, (2) the hospital placed advertisements for physicians in nationally distributed medical journals, (3) its residency programs being listed in the Green Book, (4) since 1990, at least seventeen residents in the hospital's residency programs attended New York medical schools or resided in New York prior to participating in the program, (5) three physicians hired by the hospital in 1993 and 1994 resided in New York at the time they were hired, (6) forty-one individuals from New York or New York medical schools applied to its emergency medicine residency program or emergency department between 1991 and 1994, (7) the hospital's Board of Regents issued bonds to raise, among other projects, money for the construction of an ambulatory care facility and a parking structure at the hospital, *fn114" (8) the hospital's vice-president traveled to New York to meet with Moody's representatives in connection with rating the capital bonds, *fn115" (9) its faculty members have traveled to New York since January of 1991 to attend conferences, meetings, and for research purposes. Plaintiffs' Memorandum of Law at III-63 - III-66.

 w. University of Massachusetts Medical Center

 Plaintiffs maintain that the University of Massachusetts Medical Center has significant contacts with New York, including the fact that (1) it generated $ 4,135,000 in revenues for treatment of New York patients between 1990 and 1993, (2) representatives of the medical center attended two job fairs in New York in 1988 to recruit for scientific research and nursing positions, (3) the medical center advertised job opportunities for professional and non-professional staff in the New York Times, the Wall Street Journal, and the Chronicle of Higher Education, as well as contracted in New York to receive advertising space, (4) the medical center lists its residency programs in the Green Book to recruit residents, (5) the medical center sent recruiting materials to each medical school in the country, and to New York residents based on a mailing list it purchased, *fn116" (6) two hundred and sixteen residents who have practiced at the center between 1991 and 1994 have attended medical school in New York, and forty-five additional residents from New York medical schools began their residencies at the medical center in July of 1994, (7) the medical center received 124 applications from individuals in New York or from New York medical students for residency positions in its emergency medicine program, (8) sixty-six members of its current medical staff attended medical school in New York, (9) the medical center's foundation issued $ 20,500,000 in bonds in New York, through the Massachusetts Health and Educational Facilities Authority, to raise money for the purchase of a research facility that the center leases from the foundation, *fn117" (10) it is a defendant in a lawsuit pending in the Northern District of New York, and retained counsel from New York in connection with the case, (11) Dr. Richard Aghababian, the medical center's emergency department chairman, attended a meeting in New York of American College of Emergency Physicians' New York affiliate, (12) Derrick Hollings, the chief financial officer of the medical center, attended a training seminar in New York on behalf of the center, and (13) Michael R. Green, a medical center professor, delivered the keynote address at a prestigious professional lecture, held annually at Rockefeller University in New York City. Plaintiffs' Memorandum of Law at III-54 - III-56.

 x. University Medical Center, Tucson, Arizona118

 The University Medical Center's contacts with New York include the fact that (1) it is affiliated with D'Youville and Daeman colleges, located in Western New York, in the areas of physical and occupational therapy, *fn119" (2) an indication by Gregory Pivirotto, the medical center's current president and chief executive officer, that it obtains supplies from suppliers and vendors located in New York, (3) maintaining a pollution insurance policy with a New York company, (4) issuance, between 1991 and 1993, of $ 133,810,000 in public bond offerings, *fn120" (5) opening two bank accounts with the New York branch of Societe Generale, which combined held over $ 15 million in 1994 from the bond sales; these accounts remained open at least until August of 1994, at which time their balances were $ 11,071,555 and $ 4,243,000, (6) the fact that between 1988 and 1993, the medical center's gross charges with respect to the treatment of 144 New York patients totalled $ 1,951,516, (7) the fact that the center may have billed New York insurance companies or received payments from state government sources in connection with the treatment of these patients, (8) possible personal contact or contact through a collection agency with patients who have not paid their medical bills, (9) receiving, since July 1, 1992, over $ 32,000 in charitable contributions from New York sources, (10) sending representatives, for each of the past four years, to job fairs to recruit physician and occupational therapists at a fair sponsored by the Niagara Frontier [sic] College, at Trocaire College, the State University of New York at Buffalo, Daemen College and D'Youville College, in Western New York, (11) advertising job opportunities for physicians and other employees in several national medical and trade journals, and other publications, (12) sending national direct mailings to recruit employees, (13) paying the travel expenses of potential New York hirees to come to the center, (14) the fact that from the 1990/1991 academic year through the 1994/1995 academic year, between seven and sixteen residents and fellows who practiced at the center graduated from New York medical schools, (15) receipt of its emergency medicine department of ten to twenty applications from New York residents, and (16) the fact that eleven physicians from New York medical schools have practiced or applied for privileges at the center since 1991. Plaintiffs' Memorandum of Law at III-66 - III-71.

 In determining whether any of these contacts with New York, singly or in combination, will satisfy the solicitation-plus doctrine, the court must decide whether each Defendant has sufficient contacts with the state to reach the level of substantial solicitation, which requires that the solicitation be carried on with a considerable measure of continuity. Landoil Resources, 918 F.2d 1039, 1044. Activities which are incidental to a defendant's primary business do not carry the same jurisdictional weight as the solicitation of such primary business itself. Crucible Ventures, Inc. v. Futuresat Industries, Inc., 1990 U.S. Dist. LEXIS 1622, 1990 WL 16140, at *2 (S.D.N.Y. 1990). See also Bryant v. Finnish National Airline, 22 A.D.2d 16, 253 N.Y.S.2d 215, 219-20 (App.Div. 1st Dep't. 1964) ("As the term 'doing business' is used in reference to foreign corporations, it relates to the ordinary business which the corporation was organized to do .... It is not the occasional contact or simple collateral activity which is included."), rev'd on other grounds, 15 N.Y.2d 426, 208 N.E.2d 439, 260 N.Y.S.2d 625 (N.Y. 1965). In cases involving solicitation by a foreign corporation, courts determining questions of jurisdiction "examine the realities of the business done by a foreign corporation to determine whether there is 'a good reason for drawing the defendant into a suit away from its home state.'" Katz Agency, Inc. v. Evening News Assoc., 705 F.2d 20, 24 (2d Cir. 1983) (quoting Tauza, 220 N.Y. 259, 115 N.E. 915, 917-18). If any of the hospital Defendants' contacts with New York rise to this level, the court must then review the facts to ascertain whether additional contacts exist with New York, as mere solicitation is insufficient to establish personal jurisdiction under Section 301. Cohen, 495 F. Supp. 849, 850-51.

 Plaintiffs assert that each hospital Defendant has advertised to recruit physicians, residents, and other medical staff in publications which are distributed nationally, including the Wall Street Journal, the New York Times, the Green Book, and other nationally distributed medical journals and materials. However, advertisements placed in "nationally distributed newspapers such as the New York Times do not play a substantial role in the determination of jurisdiction." Russo v. Killington, Ltd., 1994 U.S. Dist. LEXIS 8882 at *8 (S.D.N.Y. 1994). Thus, advertising in periodicals or journals with national circulation fails to constitute an activity of substance in any specific jurisdiction, and cannot be the basis for personal jurisdiction under Section 301. See Russo, supra, at *8.

 Plaintiffs also claim that some advertising by hospital Defendants was intended to solicit patients from New York, and the hospital Defendants received revenue from treating New York patients. *fn121" Even if the court assumes that all of the revenues derived from the treatment of New York patients by the hospital Defendants was in fact solicited, such revenues do not amount to substantial solicitation. Generally, in focussing on revenues derived from solicitation of business in New York to determine if the solicitation was substantial, New York courts have considered the amount spent on in-state advertising and the degree of business generated by this advertising. Lane v. Vacation Charters, Ltd., 750 F. Supp. 120, 123 (S.D.N.Y. 1990); Katz Agency, Inc. v. Evening News Assoc., 514 F. Supp. 423, 427-28 (S.D.N.Y. 1981), aff'd, 705 F.2d 20 (2d Cir. 1983). However, courts have generally refused to find jurisdiction under the solicitation-plus doctrine when revenues derived from solicitation in New York state comprise an insubstantial percentage of a defendant's total sales. Pellegrino v. Stratton Corporation, 1989 U.S. Dist. LEXIS 1324, 1989 WL 10726, *3 (N.D.N.Y. 1989); Dunn v. Southern Charters, Inc., 506 F. Supp. 564, 567 (E.D.N.Y. 1981) (where defendant derived only 1 and 1/2% of its total sales revenue from New York it was "doubtful" whether its "solicitation activities in New York [were] substantial enough to bring [the defendant] within the 'solicitation-plus' rule"); Stark Carpet Corporation v. M-Geough Robinson, Inc., 481 F. Supp. 499, 505 (S.D.N.Y. 1980) (plaintiff failed to demonstrate substantial solicitation where defendant derived only 2% of its total income from sales in New York); New England Laminates Co., Inc. v. Murphy, 79 Misc. 2d 1025, 362 N.Y.S.2d 730, 733 (Sup. Ct. Nassau Cty. 1974) (4% of total income amounting to $ 400,000 of defendant's total sales was mere solicitation and not sufficient to constitute doing business under Section 301). Compare United Resources 1988-I Drilling and Completion Program, L.P. v. Avalon Exploration Inc., 1993 U.S. Dist. LEXIS 479 (S.D.N.Y. 1993) (holding that 5% of revenue from interstate commerce was substantial).

 Children's Hospital (San Diego) derived over $ 370,000 from the treatment of 111 New York patients between October 1991 and October 1994. Plaintiffs' Memorandum of Law at III-80, Appendix Volume 4, Exhibit 4, Doc. No. LL04 429. The hospital received approximately $ 400,768,500 in net patient revenues for the same period, therefore, .09% of the hospital's revenues were generated from the treatment of New York patients.

 The Children's Hospital of Michigan treated 102 New York residents between 1988 and 1993, thus, the Plaintiffs estimated that the hospital derived $ 98,966 from New York patients. Plaintiffs' Memorandum of Law at III-51 - III-52. The hospital's total gross revenue for the same period of time exceeds $ 1 billion, thus, even using the Plaintiffs' figure of $ 98,966, Children's Hospital of Michigan received less than .01% of its revenues from New York patients.

 Forsyth Memorial Hospital charged approximately $ 322,767 for the treatment of New York patients from fiscal 1990 through fiscal 1994. *fn122" Plaintiffs' Memorandum of Law at III-45; Appendix Volume 12, Exhibit 4, Supplemental Answer to Interrogatory No. 7. The hospital's total gross revenues for the same period exceed $ 1.2 billion. Plaintiffs' Memorandum of Law, Appendix Volume 12, Exhibit 4, Supplemental Answer to Interrogatory No. 7. As such, the hospital's gross revenues from New York patients amount to .03% of its total revenues.

 From 1987 through June of 1994, Loma Linda University Medical Center received $ 2,834,192 in gross revenues from New York patients. Plaintiffs' Memorandum of Law at III-77, Appendix Volume 12, Exhibit 8, Response to Interrogatory No. 7. The medical center's gross revenues for the period from 1987 through 1993 totalled over $ 3 billion. Id. Thus, the medical center derives approximately .08% of its revenues from the treatment of New York patients.

 Lutheran General Hospital received $ 543,713 in revenues for the treatment of New York residents from 1987 to 1994. Plaintiffs' Memorandum of Law at III-21. However, the net patient revenue of the hospital from fiscal 1990-1991 through fiscal 1991-1992 was nearly $ 526 million. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 7, Doc. Nos. LL05 885, LL05 890. Thus, the revenue Lutheran General received from providing services to New York patients amounted to less than .1% of its income.

 Plaintiffs assert that from fiscal 1991 through fiscal 1994, Medical College of Pennsylvania and Hospital received $ 1,915,560 in revenues from the treatment of New York patients. Plaintiffs' Memorandum of Law at III-33. The hospital's gross patient revenues, including hospital charges and professional fees, from fiscal 1991-1992 and fiscal 1992-1993 total $ 752,049,000. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 1, Doc. Nos. LL06 790, LL06 806. Thus, the revenue the medical college and hospital received for services provided to patients from New York was less than .25% of its revenues.

 Mercy Catholic Medical Center - Misericordia Division indicates that in 1992, 3.26% of its gross patient charges were attributable to the treatment of New York patients, in 1993, the figure was 2.28%, and in 1994, 2.03%. Plaintiffs' Memorandum of Law at III-37; Appendix Volume 12, Exhibit 11, Response to Interrogatory No. 7.

 Methodist Hospital of Indiana charged nearly $ 575,000 for services rendered to New York patients for the period from fiscal 1991 through fiscal 1994. Plaintiffs' Memorandum of Law at III-41. The hospital's total patient charges from fiscal 1991 through fiscal 1994 total $ 52,591,051. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 3, Doc. Nos. LL08 617, LL08 657. Therefore, the revenue received from New York patients amounts to 1.09% of the hospital's total patient charges for that period.

 In this case, Ohio State University Hospital received nearly $ 200,000 in gross revenues from 1991 to 1993 from treating New York patients, however, the net patient revenue of the hospital for the same period of time exceeded $ 500 million. Plaintiffs' Memorandum of Law, Appendix Volume 8, Exhibit 3, Doc. No. 85. Therefore, the revenues received from patients from New York amount to .04% of the hospital's net revenues. Additionally, of the over 110,000 total patients treated at the university hospital since July of 1990, only seventy patients were from New York. Ohio State University Hospital's Memorandum of Points and Authorities, filed May 2, 1994, p. 24.

 Oregon Health Sciences University Hospital generated $ 359,132 in gross revenues from New York patients between 1987 and 1994. Plaintiffs' Memorandum of Law at III-72, Appendix Volume 13, Exhibit 15, Response to Interrogatory No. 6. For the same period of time, the hospital received $ 1,759,442,000 in gross revenues. Id. Therefore, the university received only .02% of its revenues for the period from July 1, 1987 through February 28, 1994.

 Plaintiffs assert that Saint Francis Medical Center derived at least $ 298,752 in revenues from the treatment of patients from New York. Plaintiffs' Memorandum of Law at III-60. As the hospital's total gross revenue for the same period, not including the outpatient revenues for the years 1987 through 1989, is over $ 1.8 billion, the hospital's revenues from New York patients amount to less than .02%. Plaintiffs' Memorandum of Law, Appendix Volume 13, Exhibit 18, Exhibit A to Interrogatory Answers.

 St. Anthony Hospital received $ 1,229,365 from May of 1990 to June of 1994 for treating patients from New York. Plaintiffs' Memorandum of Law at III-71, Appendix Volume 13, Exhibit 17, Response to Interrogatory No. 7. For the period from fiscal 1990 through fiscal 1993, the hospital received $ 755,799,000 in gross revenues, which means that .16% of the hospital's revenues were derived from the treatment of New York patients. Id.

 University of California (Los Angeles) Medical Center charged nearly $ 5.5 million for services rendered to New York patients for the period from fiscal 1991-1992 through fiscal 1993-1994. Plaintiffs' Memorandum of Law at III-74. However, the net patient revenue of the hospital from fiscal 1991-1992 through fiscal 1992-1993 exceeded $ 750 million. Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 2, Doc. No. LL13 00379. Thus, the revenue the medical center received from providing services to New York patients amounted to .73% of its income.

 Plaintiffs assert that since 1991, University of California (Irvine) Medical Center treated 334 New York patients which resulted in over $ 900,000 in total revenues for the hospital. Plaintiffs' Memorandum of Law at III-82. The medical center's net patient revenue for the fiscal 1992-1993 period was $ 181,300,000; limiting the revenue figure for one year, the revenue received for services provided by the medical center to New York patients is only .5%. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 6, Doc. No. LL11 1115.

 University of California (San Diego) Medical Center charged nearly $ 7 million to New York patients between fiscal 1990-1991 and fiscal 1993-1994. Plaintiffs' Memorandum of Law at III-81. However, over the same period, the medical center's total gross revenues amounted to nearly $ 2 billion, Plaintiffs' Memorandum of Law, Appendix Volume 13, Exhibit 23, Supplemental Answers at p. 3, indicating that only .36% of the medical center's revenue was from New York.

 Between 1990 and 1993, University of Massachusetts Medical Center generated $ 4,135,000 in revenues for treatment of New York patients. Plaintiffs' Memorandum of Law at III-54. However, for the same period, the medical center received over $ 1 billion in total patient revenues, Plaintiffs' Memorandum of Law, Appendix Volume 13, Exhibit 24, Response to Interrogatory No. 7, hence, only .39% of the medical center's revenue was generated from the treatment of New York patients.

 Between 1988 and 1993, University Medical Center (Tucson) generated $ 1,951,516 in revenues for treatment of New York patients. Plaintiffs' Memorandum of Law at III-69, Appendix Volume 7, Exhibit 1, Doc. Nos. LL15 12 - LL15 17. However, the net patient revenues for the period from 1988 through 1992 total $ 615,291,000, which represents less than .32% of the hospital's total revenues being derived from charges to New York patients. Id. at LL15 228, LL15 596.

 Thus, even if the court assumes that each of these hospital Defendants successfully solicited patients from New York state, such fact fails to establish the threshold requirement for application of the solicitation-plus rule, as none of the Defendants discussed above received over 3.26%, and most less than one percent, of their gross revenues from the treatment of patients from New York. Therefore, the court is not persuaded that these Defendants engaged in substantial solicitation of patients from New York, see Rolls-Royce Motors, 657 F. Supp. 1040, 1047, as the relatively insignificant revenue percentages attributed to New York patients undermine the contention that these hospitals solicit business in New York.

 Further, Plaintiffs' assertion, without evidence, that these Defendant hospitals treated New York residents which they solicited is irrelevant, as here the services rendered were performed outside of New York state, after the New York resident voluntarily traveled elsewhere to benefit from the services offered or were treated on an emergency basis. See Wolf v. Richmond County Hospital Authority, 745 F.2d 904, 911 (4th Cir. 1984) (citing Gelineau v. New York University Hospital, 375 F. Supp. 661, 667 (D.N.J. 1974) ("the residence of a recipient of personal [physician or hospital] services rendered [outside the forum] is irrelevant")). Moreover, "accepting numerous [New York] patients in [Defendant] hospital[s] and treating them . . . over the years is not a business activity within [New York]," as the hospital performed no services within New York, and did not avail itself of the privileges or benefits of New York laws. Walters v. St. Elizabeth Hospital Medical Center, 543 F. Supp. 559, 560 (W.D.Pa. 1982). See Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958) ("it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws") (citing International Shoe, 326 U.S. 310, 319, 90 L. Ed. 95, 66 S. Ct. 154). See also Jackson v. Shepard, 609 F. Supp. 205, 207 (D.Ariz. 1985) (a "hospital is not doing business in Arizona by attempting to collect debts acquired in California . . . nor does the fact that a California hospital accepts Arizonans for treatment constitute doing business by the hospital within Arizona") (citing California Brewing Co. v. Rino, 143 F. Supp. 801, 803 (D. Idaho 1956) and Walters, supra, at 560).

 In arguing that the hospital Defendants meet the solicitation-plus requirement under Section 301, Plaintiffs also urge that several of the physicians, residents, and medical staff at various hospitals came from New York or attended medical school in New York, and may have been recruited. Plaintiffs' Memorandum of Law at III-55 - III-56, III-65, III-81. To hold that these hospital Defendants have subjected themselves to the jurisdiction of New York by the simple act of employing New York residents to perform services outside the state would be contrary to Fourteenth Amendment due process requirements as it fails to demonstrate a purposeful availing of the benefits and protections of New York state. See Hanson, supra, at 253; Johnston v. Frank E. Basil, Inc., 802 F.2d 418, 420-21 (11th Cir. 1986). See also Farbman v. Esskay Mfg. Co., 676 F. Supp. 666, 669 (W.D.N.C. 1987) (case dismissed for lack of personal jurisdiction where there was no relationship between the defendant and the forum "except for the fortuitous circumstance that plaintiff was a citizen of the forum when hired").

 Plaintiffs also rely upon the fact that other persons from New York applied to the hospital Defendants' emergency medicine residency programs. Plaintiffs' Memorandum of Law at III-55 - III-56, III-65. Although some hospital Defendants have mailed promotional materials to medical schools located in New York, Plaintiffs' Memorandum of Law at III-55, III-76, III-81, III-82, and advertised in nationally distributed publications, these contacts fail to create substantial and continuous activity in New York. Johnston, supra, at 420 (an advertisement in a state newspaper offering employment opportunities outside the state, or sending an individual to interview the resident does not satisfy due process considerations for purposes of personal jurisdiction); Schenck v. Walt Disney Co., 742 F. Supp. 838, 841 (S.D.N.Y. 1990) (defendant not subject to jurisdiction under Section 301 on the basis of its solicitation of business through New York representatives by way of advertisements, sending promotional materials, maintaining a contract with a New York advertising firm, and paying commissions to travel agents where all reservations had to be confirmed by the corporation in Florida).

 Additionally, the filing of applications for admission to Defendants' emergency medicine residency programs is often the result of unilateral activity initiated by the prospective resident, rather than the residency program. See Selman, 494 F. Supp. 603, 611 (the administration of defendant association of medical colleges admission test on a regular basis in New York, along with the mailing of applications to New York medical schools, is insufficient to support jurisdiction under Section 301). Cf. Kingsepp, 763 F. Supp. 22, 27 (Dartmouth engaged in a continuous and systematic course of conduct sufficient to find that it was doing business under Section 301 as it actively solicited students by sending representatives to 44 secondary schools in the state yearly, engaged in substantial commercial activity in the state, had a banking relationship with Chase Manhattan Bank since 1982, with at least two bank accounts, issued bonds through Goldman Sachs on at least four occasions, and owned real property in the state). Here, in the absence of evidence particularizing whether medical staff members were in fact recruited by any hospital Defendants in New York, such a finding would be based on inadmissible supposition.

 Further, as New York is the second most populous state in the country and has several medical school located within it, it is reasonable to infer that hospital residency programs operated in other states will receive a significant number of New York applicants, and that numerous New York educated physicians or previous residents of New York are practicing in hospitals throughout the country. Thus, the number of physicians who graduated from New York medical schools or were New York residents before practicing at one of the hospital Defendants is irrelevant in the determination of whether these hospitals are subject to personal jurisdiction as it fails to demonstrate the purposeful availing of substantial benefits of New York state essential to a properly based finding of doing business. See Hanson, supra, at 253. Moreover, the number of applications received from medical students and physicians who resided or were trained in New York seeking positions or privileges at one of the Defendant hospitals is not, as explained, a contact that supports the exercise of personal jurisdiction absent evidence of advertent recruitment.

 Plaintiffs rely on the issuance of bonds, to raise capital, through New York financial markets as a contact with New York sufficient to presume jurisdiction under Section 301. Plaintiffs' Memorandum of Law at III-13 - III-80. However, the location in New York of service organizations, such as law firms or investment banking companies, which perform financial and related legal services for the hospital Defendants in connection with such offerings, does not represent activity in New York by the hospital Defendants for jurisdictional purposes. Bush v. Stern Brothers & Co., 524 F. Supp. 12, 14 (S.D.N.Y. 1981) (the location in New York of firms, such as law firms and investment services, which perform services for a defendant for a fee does not represent activity by the defendant in New York for jurisdictional purposes). See Stark Carpet, supra, at 506. Compare Kingsepp, supra, at 27 (although the court found that Dartmouth College was doing business in New York, the court did not indicate that the college's issuance of four bond offerings without the additional contacts as found by the court, in sending representatives to forty-four New York schools each year, engaging in substantial commercial activity in the state, maintaining two bank accounts, and owing a remainder interest in real property in New York, would be sufficient to allow jurisdiction under Section 301.) Thus, the retention of these firms for legal and financial services in connection with occasional bond issues is distinguishable from the retention of accountants and attorneys in New York on a continuous basis for purposes of finding jurisdiction pursuant to Section 301. Bush, supra, at 14. See also Nordic Bank PLC v. Trend Group, Ltd., 619 F. Supp. 542, 566 (S.D.N.Y. 1985) (where defendants each marketed in excess of $ 100 million of commercial paper through New York brokerage firms, but did not sell the notes directly to the public (the banks sold them to New York commercial paper dealers who then reoffered them to United States investors), and the sale of commercial paper was an essential aspect of the defendants' business, such contacts with New York were considered limited, sporadic, and not so substantial and continuous as to support a finding of doing business). Further, the defendants in Nordic Bank had also underwritten several multi-million dollar securities offerings and designated New York brokerage firms to represent them in connection with these offerings. Id. at 566 n. 23. However, "these infrequent forays into investment banking were neither substantial nor continuous enough to establish the corporate defendants' presence in New York." Id. at 566.

 As with most enterprises, borrowing money for capital or operating purposes is an activity incidental to the hospital Defendants' primary business, thus, the Defendants' issuance of bonds to obtain capital, and visits by each Defendant to help consummate the bond sales do not amount to the continuous business necessary to support jurisdiction under Section 301. See Crucible Ventures, supra, (the solicitation and execution of business loans, where defendant's president visited the state twenty-five times over a three year period to obtain the business loans, did not constitute doing business with the requisite measure of permanence and continuity to confer jurisdiction pursuant to Section 301). See also PaineWebber Inc. v. Westgate Group, Inc., 748 F. Supp. 115, 120 (S.D.N.Y. 1990) (defendant's "desire to get a big 'New York' Investment house is not a purposeful availment of New York as a forum," thus, defendant's contacts with New York were held not to establish jurisdiction).

 Therefore, each hospital Defendant's use of New York companies in issuing bonds to raise capital, the use of investment advisors or other New York professional organizations, and the hiring of New York attorneys by Defendants Ohio State University Hospital and the University of Massachusetts Medical Center in connection with defending against suit, are not sufficient contacts with New York to provide for jurisdiction under the solicitation-plus doctrine. Additionally, the business trips taken by Defendants' executives to negotiate and conclude the bond offerings are also insufficient to establish jurisdiction over the hospital Defendants. PHLCORP, Inc. v. Wichita Mortgage Corporation, 1991 U.S. Dist. LEXIS 927, *7, 1991 WL 12328, *3 (S.D.N.Y. 1991) (ten business trips taken by three executives over a period of fourteen months were not sufficient to establish systematic and continuous presence within the state); Hoffritz for Cutlery, 763 F.2d 55, 57-58 (fifty-four visits to New York to discuss business with plaintiff insufficient).

 Plaintiffs also contend that charitable contributions received by the hospital Defendants from residents of New York support subjecting the hospitals to jurisdiction in New York. Plaintiffs' Memorandum of Law at III-31, III-63, III-74 n. 28, III-81. However, there is no indication or evidence presented in this record that explains how or whether such contributions were solicited or were received. *fn123" Although the court must draw all reasonable inferences in favor of the Plaintiffs, the court cannot infer conclusions that do not have any reasonable basis in fact. See Hoffritz for Cutlery, Inc., 763 F.2d at 57; Marine Midland Bank, 664 F.2d 899, 904. If there was any solicitation of gifts from New York, such donations more likely occurred as the result of requests through the mails from the state in which each hospital Defendant is located or from unsolicited gifts. Further, it is unreasonable to assert that the charitable contributions received by any of the hospital Defendants were sufficient to confer jurisdiction over the Defendants, *fn124" as these contributions were not substantial, and did not result in or from continuous and systematic activity in New York. Hutton v. Piepgras, 451 F. Supp. 205, 209 (S.D.N.Y. 1978) (Mayo Clinic's receipt of charitable contributions, open laboratory facilities available nationwide, toll-free telephone service and nationwide circulation of free medical publications did not amount to presence in the state under Section 301). See also Steego Corporation v. Ravenal, 830 F. Supp. 42, 50-51 (D.Mass. 1993) (making donations by resident of forum state to non-resident charitable institutions does not constitute continuous and systematic activity in the forum state to confer personal jurisdiction).

 Another factor which will support a finding of jurisdiction under Section 301 is the in-state presence of employees engaged in business activity. Lane, 750 F. Supp. at 125; Pellegrino v. Stratton Corporation, 679 F. Supp. 1164, 1171 (N.D.N.Y. 1988). Plaintiffs argue that a defendant, such as University of California (Los Angeles) Medical Center, which attended a nursing job fair in New York in 1991, supports finding jurisdiction. *fn125" Plaintiffs' Memorandum of Law at III-55, III-76. Further, Plaintiffs assert that trips to New York for professional meetings, seminars, continuing education courses, training, or other such reasons demonstrate presence within New York. Plaintiffs' Memorandum of Law at III-22, III-26, III-32, III-42 - III-43, III-46, III-48, III-56, III-58, III-64, III-68, III-73. However, it is clear that these contacts are not systematic and continuous, and will not be sufficient to constitute presence in New York in order to obtain jurisdiction under Section 301. Lane, supra, at 125 (sending employees to two trade shows in the forum state is not sufficient for jurisdiction under Section 301, further, if the employees solicited reservations at the two trade shows, this would nevertheless be insufficient to meet the in-state activity test as the two occasions cannot be characterized as continuous or permanent activity). See Landoil Resources, 918 F.2d at 1045-46 (occasional forays into the jurisdiction do not constitute continuous presence or the substantial activities justifying application of the solicitation-plus doctrine under Section 301).

 Under the solicitation-plus test, presence is established when substantial solicitation is coupled with other New York contacts of a continuous nature, such as a New York certificate of incorporation, bank account, or phone number. Gonzalez v. Press Parts, Inc., 1995 U.S. Dist. LEXIS 15257, *10, 1995 WL 608307, *3 (S.D.N.Y. 1995) (citing Rolls-Royce Motor, supra, at 1044). As the record in this case does not permit an inference of the extensive solicitation required under Section 301 to support finding personal jurisdiction over any of the hospital Defendants except for Johns Hopkins Hospital, Plaintiffs have failed to demonstrate substantial solicitation by a preponderance of the evidence. Thus, the solicitation-plus doctrine does not establish personal jurisdiction in this court over any of the remaining hospital Defendants.

 As the contacts listed by Plaintiffs do not demonstrate substantial solicitation by any of the Defendants, except for Johns Hopkins Hospital, the court need not address the remaining contacts alleged to satisfy the "plus" portion of the New York solicitation-plus doctrine. However, for purposes of completeness, the court will briefly address the "plus" contacts alleged by Plaintiffs.

 The remaining contacts asserted by the Plaintiffs for the "plus" portion of the Section 301 solicitation-plus test include contracting for temporary nursing services, contracting for local advertising services with an agency that has a New York office, participating in multi-center trials or a study with a New York site, participating in a consortium, purchasing supplies from New York companies, affiliations with New York entities, participating in "on-line" national databases, sporadically printing advertisements in local publications, maintaining New York bank accounts, or maintaining a toll-free number which may be accessible from New York. Plaintiffs' Memorandum of Law at III-13 - III-80. Although these activities, except participating in the MATCH and FREIDA database services, constitute contacts with New York, to predicate jurisdiction pursuant to Section 301 on these facts would ascribe undue significance to essentially tenuous and intermittent contacts. See Landoil, 918 F.2d at 1043; Vendetti, 802 F. Supp. 886, 889. See, e.g., Maresca v. Holiday Inns, Inc., 1993 U.S. Dist. LEXIS 57, at *8 (S.D.N.Y. 1993) (Virginia hotel which participates in a national franchise system that includes a nationwide database and a toll-free reservations number was not amenable to jurisdiction in New York); Walsh v. Maryland Bank, N.A., 806 F. Supp. 437, 441 (S.D.N.Y. 1992) (credit card issuer located in Maryland was not doing business in New York for purposes of long-arm statute by virtue of maintaining a toll-free number for customers in the state to request credit card applications and to utilize payment services membership association which was based in New York); Vendetti, supra, at 894 (no Section 301 jurisdiction over defendant with eight New York bank accounts); Grove Valve & Regulator Co. v. Iranian Oil Services Ltd., 87 F.R.D. 93 (S.D.N.Y. 1980) (English corporation's maintenance of local bank accounts does not, without more, amount to doing business in the state); Stark Carpet, supra, at 506 (the location of a defendant's suppliers does not represent any activity by the defendant in New York); Weinberg v. Colonial Williamsburg, Inc., 215 F. Supp. 633, 639-40 (E.D.N.Y. 1963) ("Certainly the mere existence of a bank account is not conclusive as to the fairness of subjecting defendant to suit in this forum"); Fremay, Inc. v. Modern Plastic March. Corp., 15 A.D.2d 235, 222 N.Y.S.2d 694, 700 (App.Div. 1st Dep't. 1961) ("existence of a bank account in New York by itself" is not sufficient to show that a foreign corporation is doing business in New York). Compare Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 448, 96 L. Ed. 485, 72 S. Ct. 413, reh'g denied, 343 U.S. 917, 96 L. Ed. 1332, 72 S. Ct. 645 (1952) (While defendant's operations in the Philippine Islands were shut down during the Japanese occupation of the Philippine Islands, the president of the company maintained an office in Ohio from which he carried on his personal business and kept company files, carried on correspondence relating to the company and its employees, drew and distributed salary checks on behalf of the company for himself and two secretaries, maintained active bank accounts carrying substantial balances of company funds, an Ohio bank acted as transfer agent for the company stock, several directors meetings were held in Ohio, and the president supervised policies for the rehabilitation of company properties in the Philippines and dispatched funds to cover purchases of the machinery necessary for the rehabilitation. The Supreme Court held that these Ohio contacts constituted continuous and systematic supervision of the necessarily limited wartime activities of the company, thus, Ohio could exercise jurisdiction over the corporation.); United Rope Distributors, Inc. v. Kimberly Line, 785 F. Supp. 446, 450 (S.D.N.Y. 1992) (distinguished several cases as they concerned bank accounts which were incidental to the business activities of the corporations that owned them, rather than a bank account which "represents a more substantial voluntary activity in New York" such as one for the receipt of "substantially all of the income of a foreign corporation for the payment of substantially all of its business expenses"). These activities do not demonstrate a continuous and systematic presence in New York by any of the hospital Defendants, and, therefore, fall short of establishing jurisdiction under the solicitation-plus doctrine.

 Plaintiffs also assert that Dr. Bock, Dr. Chisholm, Dr. Strange, and Dr. Wagner's activities in connection with the RRC-EM and its review of the emergency medicine residency programs is another contact which supports jurisdiction over Detroit Receiving Hospital and University Health Center, Medical College of Pennsylvania and Hospital, Mercy Hospital and Medical Center, and Methodist Hospital of Indiana, the hospitals which sponsor the emergency medicine residency programs with which their physicians are connected, in this district. Plaintiffs' Memorandum of Law at III-35 - III-36, III-42, III-48, III-58. However, Plaintiffs have not shown that any action by these physicians with respect to the RRC-EM was undertaken on behalf of these hospitals. Chrysler Capital Corp, 778 F. Supp. 1260, 1266 (citing Marine Midland Bank, supra, at 904). Accordingly, such review activities are not attributable to the respective hospital Defendants with which these physicians are affiliated or employed. See Discussion Section II(b) (3), infra.

 Additionally, jurisdictional contacts must exist at or near the time of filing of the summons and complaint, Andros, 714 F. Supp. 669, in this case, January 13, 1994. As a result, some of the contacts alleged by the Plaintiffs are too stale to be sufficient to obtain personal jurisdiction. Thus, the fact that Mercy Hospital and Medical Center had a $ 1 million certificate of deposit account at a New York bank from November of 1990 through November of 1991, which was closed over two years before the Second Amended Complaint was filed, does not help establish jurisdiction over the medical center. The existence of a bank account is alone not a sufficient basis for jurisdiction. See Holtzman v. Lauder, 1994 U.S. Dist. LEXIS 2837, 1994 WL 88013, *4 - *5 (S.D.N.Y.) reargument denied, 1994 U.S. Dist. LEXIS 4157, 1994 WL 118786 (S.D.N.Y. 1994) (general maintenance of a bank account in New York without more does not constitute doing business under Section 301); Grove Valve & Regulator Co. v. Iranian Oil Servs. Ltd., 87 F.R.D. 93 (S.D.N.Y. 1980) (English corporation's maintenance of local bank accounts does not, without more, amount to doing business in the state); Weinberg v. Colonial Williamsburg, Inc., 215 F. Supp. 633, 639-40 (E.D.N.Y. 1963) ("certainly the mere existence of a bank account is not conclusive as to the fairness of subjecting defendant to suit in this forum."); Hastings v. Piper Aircraft Corp., 274 A.D. 435, 84 N.Y.S.2d 580, 583 (App. Div. 1st Dep't. 1948) (nonresident manufacturer that solicits no business in New York but has account in local bank not doing business in New York). Compare United Rope Distributors, Inc. v. Kimberly Line, 770 F. Supp. 128, 132-33 (S.D.N.Y. 1991), adhered to on reconsideration, 785 F. Supp. 446, 449-50 (S.D.N.Y. 1992) (personal jurisdiction upheld over a foreign corporation on the basis of a New York bank account, where the bank account was used for the receipt of substantially all of the income of the business and payment of substantially all of its expenses; in effect, the foreign corporation was "conducting its business" through the New York account).

 As Plaintiffs have failed to demonstrate that the hospital Defendants, except for Johns Hopkins Hospital, systematically and continuously solicited business in New York as required under the solicitation-plus test, personal jurisdiction is not established over these Defendants pursuant to N.Y. CPLR Section 301.

 Council of Emergency Medicine Residency Directors

 The Council of Emergency Medicine Residency Directors ("CORD") is an organization whose membership consists solely of emergency medicine residency training programs. Plaintiffs' Memorandum of Law, Appendix Volume 2, Exhibit 3, Doc. No. C3. Each member program may have two representatives consisting of the residency director and a designee of the program. Id. The purposes of CORD include the improvement of the quality of emergency medical care, establishing and maintaining high standards in emergency medicine training programs, enhancing the quality of instruction in emergency medicine residency programs, and improving communications between faculty members of various emergency medicine training programs. Id.

 In demonstrating that CORD is subject to personal jurisdiction pursuant to Section 301, Plaintiffs assert several contacts that CORD has with New York, including the fact that (1) Dr. Peter Viccellio of Defendant SUNY at Stony Brook University Hospital, located in New York, has been a member of CORD's Board of Directors since May of 1994, and is currently the liaison to the CORD program committee, which plans the programs for all national CORD meetings, *fn126" (2) CORD conducts its business through its directors, committees and members by telephone conference calls and sending out materials to members, including New York residents, (3) Dr. Viccellio has participated in at least one, and perhaps several conference calls as a member of the CORD board of directors, (4) the CORD Task Force on Overcrowding in 1990 and 1991 was headed by Dr. Nina Mazur, of the Brooklyn Hospital Center, with participating members from Bellevue Hospital in New York City and Stony Brook University Hospital, (5) Dr. Mazur conducted conference calls in conjunction with the activities of the task force and prepared a survey to be sent to all CORD member programs, (6) Dr. Chisholm indicated that in connection with his membership in CORD, he has had telephone conversations with CORD members in New York, (7) Dr. Viccellio and Dr. Mazur were both members of the CORD Ad Hoc Committee on Alternative Pathways, *fn127" and participated in conference calls on December 19, 1991 and January 23, 1992 to discuss issues related to this litigation, Dr. Viccellio also participated in a third conference call on February 6, 1992, which may have been with any of thirteen other New York physicians, (8) the CORD Ad Hoc Committee on Alternative Pathways surveyed all 162 representatives of its member programs, including twelve New York member hospitals, one hundred of these surveys were returned, (9) twelve CORD member institutions are located in the state of New York, thus, representative forms and dues are collected from each of these twelve members, (10) the State University of New York at Buffalo, located within this district, became a member in October of 1993, *fn128" and its representative, Dr. G. Richard Braen, is the current president of ABEM, (11) CORD solicited Buffalo's membership by sending it materials when its residency program received accreditation, including an application and forms for naming the program's representatives, and (12) CORD sends each of the twelve member programs in New York, as well as all of its other members, newsletters, president's messages, reports, notices of meetings, educational materials, slide bank slides, minutes, agendas, surveys, and invoices for dues through the mails. Plaintiffs' Memorandum of Law at III-83 - III-86.

 Although Plaintiffs have enumerated several contacts with New York, they have failed to demonstrate a continuous course of conduct by CORD upon which to predicate personal jurisdiction. The only solicitation in New York alleged by the Plaintiffs is that CORD solicited its members by sending them each materials after the emergency medicine residency program received accreditation from the RRC-EM. However, merely sending an application and information through the mail on a sporadic basis is not a sufficient contact for personal jurisdiction. Landoil Resources, 918 F.2d at 1043; Vendetti, 802 F. Supp. at 889; Tauza, 115 N.E. at 917. Further, CORD has no other business contacts with New York, as it does not own, lease, or occupy any real or personal property located in New York, it does not authorize representatives to act on its behalf in New York, it has never held any meetings in New York, and it pays no taxes, has no employees, addresses or telephone listings, and has no license to do business in New York. CORD's Motion to Dismiss, filed May 12, 1994, Affidavit of Steven Dronen, M.D., at PP2-3 ("Dronen Affidavit").

 CORD does have a few members in this state, receives dues from these members, and sends materials to its members in this district. However, these contacts are not sufficient under Section 301 to support a finding of jurisdiction. Selman, 494 F. Supp. at 610-11 (no personal jurisdiction over the Association of Medical Colleges ("AAMC") under Section 301 despite the fact that twelve of its 125 members were New York medical schools, it helped create the Medical College Admission Test, which was administered in New York, it sponsored centralized applications processing for medical students, including those from New York, mailed applications to New York medical schools, and published journals, conducted research, and held meetings and forums for the advancement of medical education). Based on the foregoing, the court finds no jurisdiction over CORD under Section 301.

 2. Jurisdiction for Transacting Business under Section 302(a) (1)

 A defendant not "doing business" in New York within the meaning of Section 301 may nevertheless be subject to jurisdiction in New York on a lesser showing of contacts with this state if the cause of action arises from those contacts. See N.Y.Civ. Prac. L. & R. § 302(a) (1); Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 763 (2d Cir. 1983). Section 302(a) (1) provides that a court may exercise personal jurisdiction over any nondomiciliary who in person or through an agent "transacts any business within the state or contracts anywhere to supply goods or services in the state." N.Y. Civ. Prac. L. & R. § 302(a) (1) (McKinney 1990). "If the defendant has 'transacted business' in New York, it is suable on any cause of action that arises out of the transaction." Hoffritz for Cutlery, Inc., supra, at 58. See N.Y. Civ. Prac. L. & R. § 302(a) (1).

 Demonstrating that a defendant "transacted business" in New York and is suable on a cause of action arising from that transaction requires considerably less contact with New York than is necessary to establish that a defendant is doing business, which renders the defendant subject to suit on unrelated causes of action. Beacon Enterprises, Inc., supra, at 763. Section 302(a) (1) is a "single act statute" and "proof of one transaction in New York is sufficient to invoke jurisdiction, even [if] the [defendant] never enters the state, so long as the [defendant's] activities [in New York] were purposeful and there is a substantial relationship between the transaction and the claim asserted." Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 522 N.E.2d 40, 43, 527 N.Y.S.2d 195 (N.Y. 1988). See Beacon, supra, at 764 ("defendant's transaction of business in New York must 'bear a substantial relationship to the transaction out of which the instant cause of action arose'") (quoting McGowan v. Smith, 52 N.Y.2d 268, 419 N.E.2d 321, 323, 437 N.Y.S.2d 643 (N.Y. 1981); Fontanetta v. American Board of Internal Medicine, 421 F.2d 355, 357 (2d Cir. 1970) (section 302 requires a direct relation between the cause of action and the in-state conduct).

 In making the determination of whether a defendant is transacting business under Section 302(a) (1), the court must examine the totality of defendant's activities with the forum state. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 810-11 (2d Cir. 1966); Falik v. Smith, 884 F. Supp. 862, 866-67 (S.D.N.Y. 1995) (citing GB Marketing USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F. Supp. 763, 769 (W.D.N.Y. 1991)). If, under the totality of the circumstances, a defendant purposefully availed itself of the privilege of conducting business in New York, thereby invoking the benefits and protections of its laws, the defendant "transacts business." Broadcasting Rights International Corp. v. Societe du Tour de France, S.A.R.L., 675 F. Supp. 1439, 1443 (S.D.N.Y. 1987) (citations omitted).

 Plaintiffs assert that each of the hospital Defendants "have purposeful, systematic, and routine contacts with New York medical students and medical schools" through FREIDA and the MATCH, Plaintiffs' Memorandum of Law at IV-1 - IV-3, and their claims are sufficiently related to the Defendants' participation in these programs so that it is "not unfair" to find that Plaintiffs' claims arise out of such participation. Plaintiffs' Memorandum of Law at IV-2. Defendants maintain that FREIDA and the MATCH do not grant them access to residents, and thus do not constitute the transaction of business in New York. Defendants' Joint Reply Memorandum at p. 39. Defendants further argue that "ABEM's closure of the practice track - the source of Plaintiffs' injury - bears no 'direct relation' to the administrative services afforded by FREIDA and the Match." Defendants' Joint Reply Memorandum at p. 39.

 The present controversy arose as the result of ABEM's closure of the practice track, thereby denying Plaintiffs eligibility to sit for ABEM's emergency medicine certification examination, and from working for hospitals which require physicians practicing emergency medicine to be ABEM certified or eligible. Second Amended Complaint at PP3-12. While Plaintiffs argue that the hospital Defendants participated in ABEM's conspiracy by accepting only ABEM certified or eligible physicians to practice in their emergency departments, and used services such as FREIDA and the MATCH to recruit residents for their residency programs, such conduct is not the transacting of business in New York and, hence, is insufficient to permit jurisdiction over the hospital Defendants under Section 302(a) (1).

 Plaintiffs' cause of action, moreover, did not arise as the result of any of the Defendants' participation in the MATCH or FREIDA. As discussed, Discussion Section II(b) (1), supra, the MATCH is an independent nonprofit organization located in Washington D.C. Randlett Affidavit No. 1 at P3. The MATCH service is offered, for a fee, to residency programs in the United States, and prospective resident physicians worldwide. Randlett Affidavit No. 2 at P4. The service performed by the MATCH occurs at the close of the residency application process, and the MATCH only sorts the ranking preferences of the programs and the applicants. Randlett Affidavit No. 1 at P3; Randlett Affidavit No. 2 at P5. FREIDA is an informational database. Hedrick Affidavit at PP3, 5. All activities related to FREIDA are performed in Illinois by the AMA, including collection of information, publication and marketing, and sales. Hedrick Affidavit at P7. Moreover, no hospital or residency program has any control or responsibility for either the MATCH or FREIDA. Hedrick Affidavit at P7; Randlett Affidavit No. 2 at P3. Significantly, as relevant to jurisdictional considerations, utilization of these services must first be initiated by the individual medical student applicant. Randlett Affidavit No. 1 at P3; Randlett Affidavit No. 2 at PP5, 7; Grenholm Affidavit at P2. None of the remaining contacts alleged by the Plaintiffs for jurisdiction under Section 301 are sufficiently related to the cause of action to sustain jurisdiction under Section 302(a) (1). For example, advertising campaigns, intermittent recruiting activity, travel to New York for professional meetings or seminars, participation in multi-center research trials, receipt of charitable donations, the treatment of New York residents, the issuance of bonds or use of professional services in New York, and the employment of physicians or residents who attended New York medical schools or resided in New York are insufficiently related to Plaintiffs' cause of action to allow jurisdiction pursuant to Section 302(a) (1). See Muollo v. Crestwood Village, Inc., 155 A.D.2d 420, 547 N.Y.S.2d 87, 88 (App.Div. 2d Dep't. 1989) (relationship between defendant's filing of prospectus and advertising in New York regarding the sale of a condominium and prospective purchaser's injury while inspecting defendant's New Jersey condominium insufficient for jurisdiction under Section 302(a) (1)); Apicella v. Valley Forge Military Academy & Junior College, 103 A.D.2d 151, 478 N.Y.S.2d 663, 665 (App.Div. 2d Dep't. 1984) (tort claim for harm to New York resident attending New Jersey school did not arise out of recruitment visits to New York by school employees and advertisements for the school in a New York newspaper); Selman, 494 F. Supp. at 612 (nexus requirement satisfied only if defendant associations' officers were in New York in an official capacity relating to the cause of action).

 Accordingly, the court finds no identifiable nexus or substantial relationship between the hospital Defendants' contacts with New York and Plaintiffs' cause of action sufficient to predicate jurisdiction under Section 302(a) (1).

 3. Conspiracy Jurisdiction under Section 302(a) (2)

 Having concluded that the hospital Defendants and CORD are not transacting business in New York thereby warranting exercise of personal jurisdiction under Section 302(a) (1), the court must next consider Plaintiffs' contention that these Defendants are subject to New York jurisdiction under Section 302(a) (2), providing for jurisdiction over a non-domiciliary who commits a tortious act within the state. N.Y.Civ.Prac. L. & R. § 302(a) (2) (McKinney 1990).

 "It is basic that the burden of proving jurisdiction is upon the party who asserts it and that he must show by the complaint and supporting affidavits the essential requirements of the jurisdictional statute." Lehigh Valley Industries v. Birenbaum, 527 F.2d 87, 92 (2d Cir. 1975). To establish jurisdiction under Section 302(a) (2) on the basis of conspiratorial acts, Plaintiffs must make a factual showing of a conspiracy by a preponderance of the evidence, and allege specific facts warranting the inference that each defendant was a member of the conspiracy. Chrysler Capital Corporation v. Century Power Corporation, 778 F. Supp. 1260, 1266 (S.D.N.Y. 1991) (citing Marine Midland Bank, 664 F.2d at 904). In addition, "[a] plaintiff must also show that the defendant's co-conspirator committed a tortious act in New York." Chrysler Corp., supra, at 1266. Further, to impute conduct, for the purposes of establishing personal jurisdiction under Section 302(a) (2) over an out-of-state defendant co-conspirator, it must also be shown that (1) each defendant had an awareness of the effects in New York of its activity, (2) the activity of the co-conspirators in New York was to the benefit of each of the out-of-state conspirators as to whom personal jurisdiction is sought, and, (3) the co-conspirators acting in New York acted "at the direction or under the control," or "at the request of or on behalf of" the non-resident defendants. Chrysler Corp., supra, at 1269.

 It is well established that acts committed in New York by a co-conspirator of an out-of-state defendant pursuant to a conspiracy may subject the defendant to jurisdiction under Section 302(a) (2). Chrysler Capital Corp., supra, at 1266. However, it is also settled that existence of a civil conspiracy alone does not qualify as an independent tort in New York for jurisdictional purposes under New York law. Durante Brothers and Sons, Inc. v. Flushing National Bank, 755 F.2d 239, 251 (2d Cir.), cert. denied, 473 U.S. 906, 87 L. Ed. 2d 654, 105 S. Ct. 3530 (1985) (New York law does not recognize a substantive tort of conspiracy); Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir. 1981); Chrysler Corp., supra, at 1267 n. 8; ABKCO Industries, Inc. v. Lennon, 52 A.D.2d 435, 384 N.Y.S.2d 781, 784 (App.Div. 1st Dep't. 1976). Therefore, to sustain jurisdiction under Section 302(a) (2) Plaintiffs must first demonstrate that one of the Defendants, as a co-conspirator, committed a tortious act in New York state. East Coast Novelty Company, Inc. v. City of New York, 842 F. Supp. 117, 122 (S.D.N.Y. 1994) (citing Valdan Sportswear v. Montgomery Ward & Co., 591 F. Supp. 1188 (S.D.N.Y. 1984)); Chrysler Corp., supra, at 1267. To cross this threshold Plaintiffs focus on ABEM, contending that as ABEM committed a tortious act within New York state resulting from its wrongful denial of Plaintiffs' applications to obtain ABEM certification, this tortious act is, for Section 302(a) (2) purposes, imputed, as an act in furtherance of the conspiracy, to each of the out-of-state, non-resident Defendants including each of the hospital Defendants and CORD, as members of a conspiracy to restrain trade, thereby creating a basis for personal jurisdiction in New York under Section 302(a) (2). Plaintiffs' Memorandum of Law at Section V.

 a. Tortious Act Within New York

 Plaintiffs urge that ABEM's denial of the opportunity to Plaintiffs to gain ABEM certification is "the heart of plaintiffs' claims for violations of the antitrust laws, which the Court determined were 'in the nature of a tort,'" and therefore that Defendant ABEM committed a tortious act in New York, *fn129" Plaintiffs' Memorandum of Law at V-2, forming the legal predicate for Section 302(a) (2) jurisdiction. It is contended that ABEM committed a tort within New York by corresponding with Dr. Daniel and other New York based Plaintiffs, by mail and telephone, regarding their applications for certification as ABEM Diplomates. Plaintiffs' Memorandum of Law at V-2; Appendix Volume 1, Exhibits 4, 5. To sustain Section 302(a) (2) jurisdiction, a defendant need not be physically present in New York in order to commit the required tortious act. See Pilates, Inc. v. Pilates Institute, Inc., 891 F. Supp. 175, 180 (S.D.N.Y. 1995) (in cases of trademark infringement, the wrong takes place where goods are passed off to the consumer, rather than where deceptive labels are affixed or where goods are wrapped in misleading packaging). Although the federal courts in this circuit have held that the transmission of a communication by mail or telephone from outside the state into New York is generally not an act committed within the state for purposes of jurisdiction under Section 302(a) (2), Van Essche v. Leroy, 692 F. Supp. 320, 324 (S.D.N.Y. 1988) (citing cases), an action alleging violations of antitrust laws is considered a claim for injuries sustained in New York, *fn130" and thus is in the nature of a tort supporting long-arm jurisdiction under Section 302(a) (2). Daniel, supra, at 919 (citing Fashion Two Twenty, Inc. v. Steinberg, 339 F. Supp. 836, 841 (E.D.N.Y. 1981)); Albert Levine Associates v. Bertoni & Cotti, S.p.A., 314 F. Supp. 169, 171 (S.D.N.Y. 1970) ("The injury flowing from the conspiracy is the tort. The claim, therefore, arises where the plaintiff suffered injury to his business."). See also Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264, 90 L. Ed. 652, 66 S. Ct. 574 (1946) (antitrust violations are essentially tortious acts); Rios v. Marshall, 530 F. Supp. 351, 367 n. 16 (S.D.N.Y. 1981) (an antitrust violation is characterized as a tortious act for purposes of personal jurisdiction). But see Van Essche, supra, at 324 (in a suit alleging prima facie tort, intentional infliction of emotional distress and tortious interference with employment relationship, the court explained that "'the mere occurrence of the injury in [New York] certainly cannot serve to transmute an out-of-state tortious act into one committed [in New York]'") (quoting Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 209 N.E.2d 68, 77, 261 N.Y.S.2d 8 (N.Y.), cert. denied sub nom., Estwing Manufacturing Co., Inc. v. Singer, 382 U.S. 905, 15 L. Ed. 2d 158, 86 S. Ct. 241 (1965)). Thus, if Plaintiffs suffered antitrust injuries in New York, *fn131" the injury occurring in New York is sufficient to meet the requirement that a tortious act take place in New York under Section 302(a) (2). See N.Y.Civ. Prac. L. & R. § 302(a) (2) (McKinney 1990) (requiring that the defendant commit a tortious act within the state).

 In this case, Plaintiffs' have claimed that ABEM's denial of several of the individual Plaintiffs' applications to sit for ABEM's certification examination, while they resided in New York, and the denial of their appeals, caused injuries in New York state. Plaintiffs' Memorandum of Law at V-2 - V-3; Appendix Volume 1, Exhibits 4, 5; Appendix Volume 2, Exhibit 3; Appendix Volume 3. Plaintiffs claim that they have received less remuneration than ABEM-certified physicians, have been unable to apply for or denied positions, promotions, or professionally related directorships based on lack of ABEM certification, and that a manpower shortage in the medical specialty of emergency medicine has been created as the result of the alleged conspiracy. Id. As these injuries flow from the alleged conspiracy and are factually supported by the Plaintiffs' declarations, Plaintiffs' Memorandum of Law, Appendix Volume 1, Exhibits 4 and 5, Plaintiffs have demonstrated that they have suffered injuries within New York. *fn132"

 Plaintiffs also assert that a tortious act was committed by ABEM in New York because ABEM's current president, Dr. G. Richard Braen, is a residency director at the State University of New York at Buffalo. Plaintiffs' Memorandum of Law at V-3. However, the fact that the president of ABEM, a Michigan corporation, is a New York resident does not demonstrate that any tortious acts by ABEM took place in New York. See Allstate Life Insurance Co. v. Linter Group, Ltd., 782 F. Supp. 215, 221 (S.D.N.Y. 1992), aff'd, 994 F.2d 996 (2d Cir.), cert. denied, 510 U.S. 945, 114 S. Ct. 386, 126 L. Ed. 2d 334 (1993) ("'the mere presence of one conspirator [in a forum state] ... does not confer jurisdiction over another alleged conspirator'") (quoting Leasco, 468 F.2d 1326, 1343). Moreover, it is ABEM and not Dr. Braen which is alleged to be a member of the conspiracy.

 Further, the Plaintiffs' conspiracy claim is, in itself, insufficient to support jurisdiction under Section 302(a) (2) as "conspiracy is merely the string which serves to connect defendants to the actionable wrong and the overt acts which caused injury." Chrysler Corp., supra, at 1267 n. 8 (citing Kajtazi v. Kajtazi, 488 F. Supp. 15, 21 (E.D.N.Y. 1978) and Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, Kaplow v. Reinfeld, 352 U.S. 844, 1 L. Ed. 2d 60, 77 S. Ct. 50 (1956)). See Allstate, supra, at 221 (to establish jurisdiction on the basis of conspiracy plaintiffs must demonstrate that the defendant's co-conspirator committed a tortious act pursuant to the conspiracy in New York). Therefore, although the Plaintiffs' conspiracy allegations standing alone are insufficient to constitute an independent tort under New York law, Chrysler Capital Corp., supra, at 1267, assuming the truth of Plaintiffs' other allegations and drawing every reasonable inference in Plaintiffs' favor, as is required on this motion, Marine Midland Bank, supra, at 904, Plaintiffs have made a sufficient showing that ABEM committed a tortious act, based upon the infliction of antitrust injuries in this state, to support personal jurisdiction under Section 302(a) (2).

 b. Factual Showing of a Conspiracy in Restraint of Trade

 The antitrust conspiracy alleged in Plaintiffs' Second Amended Complaint grows out of a scheme conducted by physicians and the hospitals with which they are affiliated to unreasonably restrict competition in emergency medicine by denying other practicing, experienced, and qualified physicians, including Plaintiffs, eligibility to obtain ABEM certification.

 When ABEM was established in 1976, the two available ways to achieve eligibility to become certified for ABEM's Diplomate status were the "residency" path, whereby the applicant physician was required to complete an approved three-year residency training program in emergency medicine, and the practice track, which required the applicant to complete 7000 hours and sixty months of practice in emergency room medicine, with twenty-four months of continuing emergency medicine practice. In accordance with its original charter provisions, ABEM discontinued the practice track on June 30, 1988 and now relies exclusively on the residency path for eligibility to sit for ABEM's examination. To become ABEM certified, upon completion of the initial qualification, following either the former practice track or the current residency path, physicians must also pass a certification examination. Plaintiffs allege that by promoting ABEM certification as the benchmark of quality and fitness to practice emergency medicine within the national health marketplace and then closing the practice track, ABEM and its co-conspirators ensured a high demand for the emergency medicine resident training programs now required by ABEM and offered by the hospital Defendants. *fn133"

 Plaintiffs' conspiracy theory, upon which they seek to predicate jurisdiction in conformance with their burden, posits that the hospital Defendants, acting through their physician "agents," as alleged by Plaintiffs, control several emergency medicine organizations, including ABEM, CORD, the American College of Emergency Physicians ("ACEP"), *fn134" and the Residency Review Committee for Emergency Medicine ("RRC-EM"), *fn135" and acting through these organizations, agreed with ABEM to close the ABEM practice track, thereby excluding competitor non-ABEM certified emergency physicians from the market. This conspiracy, according to Plaintiffs, among the hospital Defendants, ABEM, CORD, and the other emergency medicine organizations, ACEP, the Society for Academic Emergency Medicine ("SAEM"), *fn136" the University Association for Emergency Medicine ("UA/EM"), *fn137" the Society for Teachers of Emergency Medicine ("STEM"), *fn138" the Association of Academic Chairs in Emergency Medicine ("AACEM"), *fn139" the American Medical Association's ("AMA") Section on Emergency Medicine, *fn140" and the RRC-EM, also involved an agreement not to permit any alternative routes to attain ABEM certification, required that all directors, faculty, and attending physicians in emergency medicine be ABEM certified, and promoted ABEM certification as the sole standard of competency for emergency department physicians. Plaintiffs' Memorandum of Law at V-8 - V-59.

 Plaintiffs contend that each hospital Defendant is both a principal and beneficiary of the conspiracy, as each hospital has created and implemented policies to employ only ABEM certified physicians, thereby excluding many emergency physicians who have more experience, knowledge, and skill than those with ABEM certification. Second Amended Complaint at PP78-82, 89, 108-110.

 Plaintiffs also assert that ABEM has a monopoly over the market for board certified emergency medicine physicians, and that the exclusion of other qualified emergency medicine physicians from the market for board certified emergency medicine physicians is an unreasonable restraint on trade. Second Amended Complaint at PP122-135. In Plaintiffs' view, this exclusion results in the suppression of competition with ABEM Diplomates. Plaintiffs also maintain that the resultant diminished supply of emergency medicine Diplomates has inflated the cost and thus price for emergency medical services, and created a manpower shortage in the field of emergency medicine. Plaintiffs' Memorandum of Law at V-60 - V-68. To find jurisdiction based upon Section 302(a) (2) in this case, it is therefore necessary to determine whether Plaintiffs have established by a preponderance of the evidence that the alleged conspiracy among ABEM, CORD, the other non-defendant professional emergency medicine organizations and the hospital Defendants was in violation of the antitrust laws, an overt act was committed in its furtherance, and each Defendant over whom jurisdiction under Section 302(a) (2) is sought intentionally participated in furtherance of the unlawful agreement. See Chrysler Capital Corp., supra, at 1267.

 i. Corrupt Agreement

 The Sherman Act prohibits unlawful or corrupt agreements, meaning every contract, combination, or conspiracy "in restraint of trade or commerce among the several States," 15 U.S.C. § 1, and also prohibits monopolizing "any part of the trade or commerce among the several States." 15 U.S.C. § 2.

 To prove a violation of the Sherman Act Section 1, a plaintiff must establish the existence of a contract, combination or conspiracy which constitutes a restraint of trade and has an impact on interstate commerce. See Standard Oil of New Jersey v. United States, 221 U.S. 1, 55 L. Ed. 619, 31 S. Ct. 502 (1911). Independent unilateral action is not actionable under Section 1 of the Sherman Act. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767, 81 L. Ed. 2d 628, 104 S. Ct. 2731 (1984). Plaintiffs therefore carry the burden of presenting sufficient evidence to permit the inference of concerted action, and evidence that tends to exclude the possibility that the defendants were acting independently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Monsanto v. Spray-Rite Serv. Corp., 465 U.S. 752, 763-64, 79 L. Ed. 2d 775, 104 S. Ct. 1464 (1986). Thus, an "antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the [defendants] 'had a conscious commitment to a common scheme designed to achieve an unlawful objective.'" Monsanto, supra, at 764 (quoting Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir. 1980), cert. denied, 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981 (1981)). To be actionable under the Sherman Act, a conspiracy cannot be inferred from similar conduct absent an examination of "the [anticompetitive] motivation of the alleged conspirators, [but] proof of [such] motivation is not required when there exists either direct evidence of collaboration or other probative circumstantial evidence (beyond evidence of mere parallel and innocent conduct) from which to infer an [anticompetitive] agreement." Bhan, supra, at 1015 (citing Wilson Indus., Inc. v. Chronicle Broadcasting Co., 794 F.2d 1359, 1365 (9th Cir. 1986) and VI P. Areeda, Antitrust Law PP1412a, 1425b (1986)).

  According to Plaintiffs, the conspiracy involves an agreement among ABEM, CORD, and the hospital Defendants which included the elimination of the practice track by ABEM, *fn141" the rejection by various professional organizations of "alternative pathways" to residency programs to attain ABEM certification, RRC-EM's setting of special requirements including ABEM certification for faculty in emergency medicine residency programs, ACEP and ABEM's encouragement of hospitals to hire ABEM certified emergency physicians, and the refusal of each hospital Defendant to hire emergency physicians who are not ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-8 - V-11; V-102 - V-103.

  Plaintiffs contend that each of these actions was effected by one or more of the emergency medicine professional organizations which Plaintiffs claim are co-conspirators of Defendants although not named as parties in this action. However, none of the hospital Defendants are members or participants in any of these organizations except for CORD, whose membership consists of individual hospital residency programs accredited by the RRC-EM. Each of the other co-conspirator emergency medicine professional organizations, as described by Plaintiffs, including ABEM, ACEP, SAEM, UA/EM, STEM, AACEM, the AMA Section on Emergency Medicine, and the RRC-EM, are physicians' professional associations, whose memberships consist of several individual emergency physicians, some of whom are currently, or were previously, permitted to practice in the emergency department of various hospital Defendants.

  Plaintiffs assert that these physicians, associated with the various co-conspirator organizations and the hospital Defendants, had "leadership roles in the organizations which collectively control emergency medicine," and have participated in the conspiracy by restricting the supply of ABEM certified physicians, while simultaneously tightening the requirements for employment in a hospital emergency department. Plaintiffs' Memorandum of Law at V-73; Exhibit C. In arguing that hospital Defendants are liable under their conspiracy theory, Plaintiffs contend that these Defendants are liable for the acts of their "employee/agent" physicians who participated in the professional organizations which set standards for training and practice of emergency physicians and the accreditation of emergency medicine residency training programs as these acts are "within the scope of their duties and apparent authority as employees of the [Defendant] hospitals." Plaintiffs' Memorandum of Law at V-95.

  However, as noted, CORD is the only organization to which any of the emergency medicine residency programs of the hospital Defendants belong. *fn142" Additionally, the residency directors of accredited residency training programs in emergency medicine are members of a special section of the ACEP for residency directors. Plaintiffs' Memorandum of Law, Appendix Volume 2, Exhibit 3, Doc. Nos. C206-C207. Plaintiffs state that the hospital Defendants have also been represented in ABEM, SAEM, AACEM, the ACEP Academic Affairs Committee, and the RRC-EM. Plaintiffs' Memorandum of Law at V-99, Exhibit C ("Interlocking Individual Agents of Defendant Hospitals and Their Participation in the Conspiracy"). In their elaboration of how the hospital Defendants are involved in each of these organizations, the Plaintiffs rely on a list correlating certain individual physicians who practice in the emergency rooms of the hospital Defendants, and the various co-conspirator organizations with which these physicians are or have been affiliated. Plaintiffs' Memorandum of Law, Exhibit C. Specifically, Plaintiffs, to support this branch of their case for jurisdiction, assert that the hospital Defendants are responsible for the actions of individual physicians affiliated with those hospitals and whom are also members of the described professional emergency medicine organizations, as, in Plaintiffs' view, those Defendants condoned and supported the involvement of the physicians in the activities and decisions of those professional organizations. Plaintiffs' Memorandum of Law at V-96 - V-102, V-110 - V-130.

  When applied to the facts surrounding membership in CORD, the Plaintiffs' agency theory is initially correct, as the physicians attending CORD meetings are sent as representatives of the emergency medicine residency training programs of their respective hospitals, including hospital Defendants which are CORD members. However, acting as a representative does not in itself establish that the representative is an agent for the entity represented with authority to bind the represented party or to serve as a conduit for attribution of tortious actions by the organization on which the representative serves. Additionally, mere membership in an independent professional organization is insufficient to establish antitrust liability against a member for the organization's alleged wrongful acts. See, e.g., Hunt v. Mobil Oil Corp., 465 F. Supp. 195, 231 (S.D.N.Y. 1978), aff'd, 610 F.2d 806 (2d Cir. 1979); Vandervelde v. Put & Call Brokers & Dealers Association, 344 F. Supp. 118, 154 (S.D.N.Y. 1972). It is, moreover, illogical to assert that individual members of professional emergency medicine associations, other than CORD, attend meetings on behalf of any hospital Defendants, and thereby act as their agents. *fn143" Rather, as the members of the AMA, ABEM, ACEP, AACEM, RRC-EM, and other emergency medicine professional organizations are the individual physicians, regardless of any relationships these physicians have with the hospital Defendants, such relationships are inadequate to render these Defendants subject to antitrust liability for the professional organizations' alleged wrongful acts, as such acts cannot be imputed to the physician members on the basis of their mere membership in an organization or on one of its committees. See, e.g., Hunt, supra, at 231 ("to hold one as a participant in a conspiracy, he must by word, deed or conduct intentionally join the illicit enterprise; mere association with conspirators and presence at the scene of a conspiracy, even coupled with knowledge that wrongful conduct by others is being engaged in, are not by themselves sufficient to support the inference of knowing and intentional attachment to an illegal enterprise"); Vandervelde, supra, at 154 (mere membership on a committee is not in itself sufficient proof of connection or ratification of conduct to justify a finding of conspiracy). See also H.L. Moore Drug Exchange v. Eli Lilly and Company, 662 F.2d 935, 941 (2d Cir. 1981), cert. denied, 459 U.S. 880, 74 L. Ed. 2d 144, 103 S. Ct. 176 (1982) (a mere showing of close relations or frequent meetings between the alleged co-conspirators does not sustain a plaintiff's burden absent the inference that these close ties led to an illegal agreement). See also Discussion Section II(3) (d), infra, (rejecting Plaintiffs' argument that the activities of co-conspirators can be imputed to the Defendant hospitals).

  Further, the fact that alleged physician representatives of the hospitals are members of the various emergency medicine associations, described by Plaintiffs as co-conspirators with Defendants, does not indicate that these persons formed an agreement to restrain competition in the field. *fn144" See Hunt, supra, at 231; Vandervelde, supra, at 154. Moreover, even if the physicians were acting as agents of the hospital Defendants, such status would be insufficient to impute the actions of the organizations of which the physicians are members to either the physicians or the hospitals. See H.L. Moore, supra, at 941; Hunt, supra, at 231. Thus, arguendo, if it were the case that the hospital Defendants permitted or encouraged participation by the physicians listed by Plaintiffs in the emergency medicine professional organizations claimed to be co-conspirators, such would be insufficient to show purposeful joining of the conspiracy. Further, as physician membership simpliciter in such organizations is insufficient to create liability as a co-conspirator, there is no liability based upon the fact of mere membership to impute to any hospital Defendant.

  The next element in Plaintiffs' conspiracy theory involves the RRC-EM. *fn145" This organization, as noted, sets the standards ("Special Requirements") which emergency medicine residency programs must meet to become and remain accredited by the Accreditation Council for Graduate Medical Education ("ACGME"). *fn146" Plaintiffs' Memorandum of Law at V-32. Over the last several years, the RRC-EM has required more stringent qualifications which culminated, effective in January of 1995, in the condition to accreditation that all emergency medicine teaching staff at each hospital involved in an emergency medicine residency training program be ABEM certified or eligible for certification. Plaintiffs' Memorandum of Law at V-33 - V-37; Appendix Volume 2, Exhibit 1, Doc. Nos. ABEM2130-ABEM2131. Plaintiffs assert that the requirement of ABEM certification or eligibility has resulted in the loss of employment or diminished advancement opportunities for many emergency physicians having training and experience equivalent to that of ABEM certified physicians. Plaintiffs' Memorandum of Law at V-35. Further, the hospitals' failure to comply with RRC-EM's qualifications risks loss of accreditation, the consequences of which were not explained in the record. Plaintiffs' Memorandum of Law at V-35.

  Plaintiffs point out that RRC-EM submitted its Special Requirements, including the requirement that all emergency medicine teaching staff be ABEM certified or eligible, to the co-conspirator organizations, including CORD, for review and approval before submitting them to the Accreditation Council for Graduate Medical Education, *fn147" see Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. C755-C779, and that the co-conspirator professional organizations also sought to eliminate competition for emergency physician jobs at all teaching hospitals, regardless of whether they have emergency medicine residencies, by issuing reports and resolutions stating that all emergency medicine should be taught in medical schools and residency programs by ABEM certified faculty. Plaintiffs' Memorandum of Law at V-42 - V-44.

  Plaintiffs argue that ABEM and ACEP tried to persuade hospitals to require ABEM certification by announcing as their policy that "hospitals should be influenced to hire emergency physicians who are appropriately trained and credentialed." Plaintiffs' Memorandum of Law at V-44; Appendix Volume 3, Doc. No. 1414. ABEM acknowledged that its policy regarding the credentialing requirements imposed by hospitals states that "ABEM certification is the recognized standard of competency in Emergency Medicine. It is the only certification that merits consideration by medical credentialing committees." Plaintiffs' Memorandum of Law at V-46; Appendix Volume 3, Doc. No. 1993. ACEP also developed specific policies stating that emergency physicians should be ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-46 - V-48; Appendix Volume 3, Doc. Nos. 69, 81, 91-92, 130, 1209, 1414, 1772-1773, 1780, 1799-1800, 2903. Plaintiffs assert that the co-conspirators were successful in influencing hospitals to begin requiring ABEM certification for medical staff credentialing, which caused many experienced and committed emergency physicians to lose their jobs, be demoted, or lose opportunities for advancement in emergency medicine. See, e.g., Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 2284-2289, 2421-2423.

  Plaintiffs' contend that as the result of the alleged shortage of ABEM certified or eligible physicians, there have been significant increases in ABEM certified or eligible emergency physicians' incomes, and a high demand for board certified or eligible physicians, and for positions in emergency medicine residency programs. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1723, 1802. An ACEP Accreditation Study in August of 1991 indicated that 77% of hospitals did not require ABEM certification or eligibility of their emergency physicians, however, according to this study, many physicians believed that within a few years, ABEM certification would be a requirement at 50% of the hospitals. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1803, 1820, 1833-1836. After the survey, ACEP investigated the feasibility of creating a graduate medical education track in order to allow those physicians who were not eligible to take the ABEM examination another route to ABEM certification. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1803, 1820, 1833-1836. However, the members of ACEP ultimately were unwilling to endorse any such alternative proposals. See, e.g., Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 1884-1886. Additionally, as noted, CORD voted unanimously to oppose alternative methods of residency training that would ultimately lead to ABEM certification. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. No. 1909. CORD so voted because the program directors "believe training that is not equivalent [to emergency medicine residency training] undermines the legitimacy and credibility of the residency training programs." Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. No. 1909.

  Despite Plaintiffs' contentions, and the factual support presented, the Plaintiffs have failed to demonstrate by a preponderance of the evidence that the hospital Defendants and CORD had a "conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto, 465 U.S. at 764. Taken most favorably to Plaintiffs, the evidence suggests that ABEM's objective was to secure its certification as the "recognized standard of competency in Emergency Medicine." CORD's purpose was to avoid any dilution of the "legitimacy and credibility of the [emergency medicine] residency training programs." ACEP does support ABEM's objective of continuing as the sole credentialing agent for emergency medicine, but it has no apparent direct influence upon CORD, ABEM, or the hospital Defendants. Thus, while ABEM, CORD and ACEP can be said to have related purposes as to ABEM certification, they are not objectively common.

  Apart from the Plaintiffs' contention that the hospital Defendants enforced or adhered to ABEM's primacy as the nation's sole emergency medicine credentialer, discussed below, there is no evidence that any hospital Defendant's objective was to maintain such exclusivity at the expense of Plaintiffs. *fn148" Rather, the record more reasonably supports the inference that in order to maintain both their accredited status and high quality care in their respective emergency departments, hospital Defendants independently chose to implement the credentialing requirement of ABEM certification in some aspects of their residency programs. *fn149" This finding is reinforced by the fact that there is no evidence in the record that any of the hospital Defendants and Plaintiffs are in cooperation, an unsurprising result given that hospitals and physicians do not compete. As such, there is no showing by a preponderance of the evidence, of a common unlawful purpose among the Defendants.

  Plaintiffs must also demonstrate factual support for their assertion that each hospital Defendant refused to hire emergency physicians unless they were ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-53 - V-59. To support this contention, Plaintiffs list each hospital Defendant and describe the policy or practice which they contend forbids the employment of emergency physicians who are not ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-54 - V-5. This evidence is summarized as follows:

  

Children's Hospital (San Diego) requires its faculty and staff to be board certified in either pediatrics or emergency medicine. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 4, Doc Nos. LL02 347-348.

  

Forsyth Memorial Hospital requires its emergency department physicians to be "board certified by the American College of Emergency Physicians or be residency trained in Emergency Medicine." *fn150" Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 1, Doc. No. FMH27; Affirmation of Denise M. Jennings, filed January 27, 1995, Exhibit A, Doc. No. FMH44 (each new applicant for privileges at Forsyth Memorial must be board certified or qualified by training in the specialty for which he is applying for privileges).

  

Johns Hopkins Hospital, Part of Johns Hopkins Health System's Medical Staff Bylaws provide that specialty board certification or eligibility, or the equivalent is required to become a member of the hospital's active, courtesy, or associate staff. Johns Hopkins' Medical Staff Bylaws, §§ 3.01, 3.02, 3.03.

  

Loma Linda University Medical Center contracts with the Loma Linda Emergency Medical Group, Inc. to staff the emergency department. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 6, Doc. Nos. LL04 867-LL04 886. The agreement between the medical center and the Emergency Medical Group provides that the medical director is responsible for the recruitment of ABEM certified or eligible physicians for faculty appointments. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 6, Doc. No. LL04 870. Additionally, Plaintiffs have identified several job advertisements for positions at Loma Linda University Medical Center which require board certified emergency physicians. See, e.g., Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 2350, 2392, 2437, 2457. However, the medical center has not followed this policy in all cases, as the "practice has been to hire both board certified and non-board certified physicians who are qualified to practice emergency medicine." Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 44, pp. 18, 21-22, 34.

  

Lutheran General Hospital's Medical Staff Bylaws provide that physicians must be certified by the appropriate board, or eligible to take the board examination. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 7, Doc. Nos. LL05 1182-LL05 1183; Volume 11, Exhibit 57, pp. 33-34. However, board certification, or its equivalent, can be waived by the credentialing committee for good cause shown. Id. at LL05 1182. Plaintiffs have also shown that when Lutheran General has advertised job opportunities for emergency physicians, it has required that the applicants be board certified or eligible. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 3395, 3400, 3403.

  

Mercy Hospital and Medical Center's Criteria for Physicians in the Department of Emergency Medicine requires all attending and adjunct staff physicians to be board certified or eligible, and to become certified within four years of eligibility. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 2, Doc. No. LL07 223; Volume 10, Exhibit 10, pp. 53-59; Volume 11, Exhibit 68, pp. 55-56. Additionally, various advertisements for emergency physician faculty positions at Mercy Hospital require board certification or eligibility. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 3396, 3398, 3408.

  

The Methodist Hospital of Indiana requires all members of its medical staff to be board certified or eligible in their respective specialties. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 9, p. 50. Further, as of 1994, all eighteen full-time emergency medicine faculty physicians in the emergency department were ABEM Diplomates. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 3, Doc. No. LL08 481.

  

Ohio State University Hospital's Medical Staff Bylaws provide that all applicants for membership must be board certified in their specialty. Ohio State University Hospital's Memorandum of Points and Authorities, filed May 2, 1994, Exhibit B, Chapter 3335-43-04(A) (4); Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 43, pp. 40-44. Applicants who are board eligible have three years from the date of eligibility to become certified. Id. However, upon the recommendation of the credentials committee or the medical director, the medical staff administrative committee may waive the certification requirement, although no such exception has been made. Ohio State University Hospital's Memorandum of Points and Authorities, filed May 2, 1994, Exhibit B, Chapter 3335-43-04(A) (4); Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 43, pp. 42-44.

  

Riverside Methodist Hospitals' Department of Emergency Medicine Rules and Regulations require emergency physicians seeking clinical privileges to be ABEM certified or eligible. Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 1, Doc. Nos. R1279, R1283. See also Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 1, Doc. Nos. R895-R896.

  

Saint Francis Medical Center's director of emergency services stated that St. Francis Medical Center requires a person to be ABEM certified or eligible, however, the hospital has practicing physicians who are not board certified. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 45, pp. 50-51. Further, the medical center's emergency department has approved exceptions to the ABEM certification requirement and allowed physicians certified by the American Board of Family Practice and the American Board of Internal Medicine to practice in the emergency department. Id. When Saint Francis Medical Center has advertised opportunities for emergency physicians, the advertisements have indicated that board certified physicians are sought. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 3370, 3372, 3374, 3399, 3405, 3407.

  

Tri-City Medical Center's Department of Emergency Medicine Rules and Regulations indicate that the medical center's contracts with the Tri-City Emergency Medical Group for emergency medicine physicians. Plaintiffs' Memorandum of Law, Appendix Volume 9, Exhibit 4, p. 1. Tri-City Medical Center requires the physicians who practice in its emergency department to be ABEM certified or eligible. Id. at pp. 1, 3.

  

University of California (Los Angeles) Medical Center's medical staff bylaws require physicians to have board certification or its equivalent, which includes, but is not limited to, the satisfactory completion of a training program. Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 2, Doc. Nos. LL13 469, LL13 1974.

  

University of California (San Diego) Medical Center's bylaws, rules, and regulations also require its medical staff to be board certified. Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 1, Doc. No. LL12 1421. Further, all of the medical center's emergency department faculty are either board certified or eligible. Id. at LL12 1257-LL12 1259.

  Plaintiffs agree that, unlike those hospital Defendants listed above, Kettering Medical Center, Oregon Health Sciences University Hospital, and University of California (Irvine) Medical Center have no certification requirement, however, in fact they only employ ABEM certified or eligible physicians. Plaintiffs' Memorandum of Law at V-56. These practices are summarized below:

  

Kettering Medical Center requires its emergency physicians to be eligible to take the ABEM examination or have at least two years of post-graduate training in a specialty relevant to emergency medicine, or two years of experience through the full time practice of emergency medicine. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 2, Doc. No. K405993.

  

Oregon Health Sciences University Hospital's emergency services department physicians are all ABEM certified or have completed emergency medicine residencies. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 4, Doc. Nos. LL09 597-LL09 601. Further, advertisements for fellowship positions provide that the persons will work "under the supervision of ACMT or ABEM certified faculty." Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 2455, 2513, 2808, 3387.

  

University of California (Irvine) Medical Center, in August of 1994, had seven full time faculty members in emergency medicine; five of the seven were ABEM certified, and the remaining two were board eligible. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 36, pp. 25-26. Further, the medical center has placed several advertisements for board certified or eligible physicians in emergency medicine journals. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 2113, 2307, 3095, 3377, 3381. These advertisements indicate that all applicants must be ABEM certified or eligible. Id. The medical center also has twelve part time attending emergency physicians, however, there is no indication whether or not these physicians were board certified or eligible.

  Finally, Plaintiffs assert that although the Children's Hospital of Michigan, Detroit Receiving and University Health Center, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center - Misericordia Division, St. Anthony Hospital, University Hospital at the University of New Mexico School of Medicine, University of Massachusetts Medical Center, and University Medical Center (Tucson) employ emergency physicians who are not ABEM certified or eligible, the hospitals discriminate against these physicians by granting preferences to certified physicians. Plaintiffs' Memorandum of Law at V-57. The asserted exclusionary practices of these hospital Defendants are as follows:

  

Children's Hospital of Michigan's medical staff membership qualifications provide that board certification in a specialty is evidence that a practitioner has assimilated knowledge essential to practice. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 3, Doc. Nos. LL01 913-LL01 914. Appointment to the medical staff at the hospital is not dependent solely on certification by a medical specialty board, or the completion of an approved training program; rather, experience, background, training, skills and ability, among several other factors, are the basis of granting privileges to a physician at the hospital Id. However, the hospital's chief of staff stated that board certification is a factor which may be utilized in determining compensation and "favorably looked upon by promotion committees" and is "often a requirement for admission to the medical staff." Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 17, pp. 24-25, 35.

  

Detroit Receiving Hospital and University Health Center's Criteria for Admission to the Medical Staff requires active staff members to be ABEM certified, or have completed an accredited residency program in emergency medicine, or have three or more years of postgraduate training with demonstrated advanced ability in the management of emergency patients, cardiac and trauma resuscitation. Plaintiffs' Memorandum of Law, Appendix Volume 4, Exhibit 5, Doc. Nos. LL03 475 - LL03 476. Although initial appointment to the staff does not require certification, the physician must, within six years, be certified in his primary discipline or he will not be eligible for reappointment. Id. at LL03 476. Further, the Chairman of the Department of Emergency Medicine at the hospital, stated that the hourly compensation for emergency physicians varies depending on certification and experience. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 5, p. 46. However, the hospital's response to Interrogatory 31 of Plaintiffs' Interrogatories to Hospital Defendants Asserting Personal Jurisdiction Defenses indicates that only five of the hospital's emergency physicians are ABEM certified. Plaintiffs' Memorandum of Law, Appendix Volume 12, Exhibit 3, Doc. No. LL03 568.

  

The Medical College of Pennsylvania and Hospital's Faculty Bylaws provide that qualifications for the position of professor, associate professor, or assistant professor should include certification by the appropriate specialty board. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 1, Doc. No. LL06 922.

  

Mercy Catholic Medical Center, Misericordia Division requires that all appointments to its faculty "shall be effected pursuant to [the Medical College of Pennsylvania's] Bylaws." Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 1, Doc. No. LL06 100. Thus, Mercy Catholic Medical Center - Misericordia Division's professors, associate professors, and assistant professors qualifications should include certification by the appropriate specialty board, as discussed in the Medical College of Pennsylvania's bylaws. Id. at LL06 922. *fn151"

  

St. Anthony Hospital's Medical Staff Rules & Regulations establish three classes of emergency physicians. Plaintiffs' Memorandum of Law, Appendix Volume 5, Exhibit 5, Doc. Nos. LL10 1035-LL10 1036. Class I and II physicians need not be board certified, but they work under the direct supervision of a Class III physician, who must be board certified in emergency medicine, family practice, surgery, or internal medicine, or have three years of postgraduate training in one of these specialties, or one year of training and three years of full-time primary care. Id. In 1992, a proposal for changing this requirement was suggested, which limited the practice of emergency medicine at St. Anthony's to physicians who are ABEM or family practice certified or eligible. Id. at LL10 1272-LL10 1273.

  

The University Hospital at the University of New Mexico School of Medicine requires that the physicians practicing in the emergency department be board certified in either emergency medicine or another specialty, such as internal medicine, family medicine, or pediatrics. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 66, pp. 61-62. Additionally, in advertising for a faculty position in emergency medicine, the school of medicine required ABEM certification or eligibility. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. No. 3379.

  

University of Massachusetts Medical Center's Bylaws do not require emergency physicians to be ABEM certified or eligible. Plaintiffs' Memorandum of Law, Appendix Volume 6, Exhibit 3, Doc. Nos. LL14 205-LL14 209. However, advertisements for fellowship positions provide that the medical center's emergency department is staffed with "three ABMT/ABEM diplomates." Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 2455, 3100. Further, when advertising for opportunities in emergency medicine, the medical center sought a board certified or prepared emergency physician to fill the vacancy. Id. at Doc. Nos. 2113, 2354, 2395.

  

University Medical Center (Tucson) has ten emergency medicine faculty members, only one of which is not ABEM certified or eligible. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 33, pp. 21-22. Additionally, when advertising for faculty positions, the hospital requires ABEM certification or eligibility. Plaintiffs' Memorandum of Law, Appendix Volume 3, Doc. Nos. 2351, 2393, 2438, 2457.

  Plaintiffs argue that each of the hospital Defendant's refusal to hire or discrimination against physicians who are not ABEM certified or eligible constitutes "[a] pattern of uniform conduct or parallel behavior where it would be improbable that the conduct would be uniform, in the absense [sic] of an illegal agreement, [and that this] factor [is] weighed heavily, along with other facts and circumstances, to support an inference of concerted action." Plaintiffs' Memorandum of Law at V-53 (citing American Tobacco Co. v. United States, 328 U.S. 781, 810, 90 L. Ed. 1575, 66 S. Ct. 1125 (1946) and Apex Oil Co. v. Di Mauro, 822 F.2d 246, 253-54 (2d Cir.), cert. denied, 484 U.S. 977 (1987)).

  However, such "parallel" conduct even if entered upon with awareness that other competitors were acting simultaneously, sometimes referred to as "conscious parallelism," *fn152" by competitors alone does not demonstrate that a conspiracy is present, rather, courts need some basis, beyond mere parallel conduct, to suggest that an independent actor would otherwise not have acted as the putative conspirators did. Theatre Enterprises, Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 541, 98 L. Ed. 273, 74 S. Ct. 257 (1954). The most significant evidence tending to show that a conspiracy exists is when the parties' "parallel" actions would be against their individual self-interest absent an agreement. See Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1456-57 (11th Cir. 1991) (court refused to infer a conspiracy from radiologists' recommendation and hospital's denial of additional privileges to plaintiff doctor where facts alleged did not "exclude the possibility that the hospital acted unilaterally, and procompetitively, . . . [by] denying [plaintiff] the privileges he requested" in order "to foster competition and to serve its own economic interest" in higher productivity and safety); Houser v. Fox Theaters Mgt. Corp., 845 F.2d 1225, 1232 (3d Cir. 1988); Illinois Corporate Travel, Inc. v. American Airlines, Inc., 806 F.2d 722, 726 (7th Cir. 1986). See also Bolt v. Halifax Hospital Medical Center, 891 F.2d 810, 826 (11th Cir.), cert. denied, 495 U.S. 924, 109 L. Ed. 2d 322, 110 S. Ct. 1960 (1990) ("evidence of conscious parallelism does not permit an inference of conspiracy unless the plaintiff establishes that each defendant engaging in the parallel action acted contrary to its economic self interest").

  For example, in the Interstate Circuit case, eight film distributors acceded to the demands of Interstate, a movie theater chain with first-run theatre monopolies in major Texas cities, that the distributors impose certain price restrictions on other second run exhibitors of high demand films to be shown by Interstate. Interstate Circuit, supra. Each of the distributors was aware that Interstate had made identical demands to the others. The Court accepted an inference of a conspiracy from the fact that "without substantially unanimous action with respect to the restrictions . . . there was risk of a substantial loss of the business and goodwill of [other] exhibitors, but that with it there was the prospect of increased profits." Id. at 222. See also American Tobacco Co., supra, at 805-806 (the Supreme Court relied on evidence of price increases in the face of declining costs and a depressed economy to support an inference of conspiracy). Other "plus factors" include the presence or absence of a motive on defendant's part to enter the alleged conspiracy, Matsushita Elec. Indus., 475 U.S. at 596-97 ("Lack of motive bears on the range of permissible conclusions that may be drawn from ambiguous evidence: if defendants had no rational economic motive to conspire and if the conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy"), or if the alleged motive for restraint was pretextual. Bolt, supra, at 822 (evidence that defendant's reasons for revocation of doctor's staff privileges were pretextual was admissible to prove the existence of a contract, combination or conspiracy). But cf. H.L. Moore Drug Exchange, 662 F.2d at 943 (fact that stated reason for termination of wholesaler might have been pretextual, does not itself establish a conspiracy, as "the fact that [defendant] may have had other reasons to terminate [plaintiff] makes it neither more nor less probable that [defendant] acted in concert with others rather than unilaterally"). Additionally, when a plausible business justification for the parallel conduct is apparent and no evidence is presented to support an alternative explanation, evidence of conscious parallelism is insufficient to prove a conspiracy. Strobl v. New York Mercantile Exchange, 582 F. Supp. 770, 777 (S.D.N.Y. 1984), aff'd, 768 F.2d 22 (2d Cir.), cert. denied, Simplot v. Strobl, 474 U.S. 1006, 88 L. Ed. 2d 459, 106 S. Ct. 527 (1985).

  As to the hospital Defendants' decisions regarding any emergency medicine certification requirements, however, Plaintiffs have not demonstrated that any of these "plus factors" exist. For example, the record contains no indication that any hospital Defendant would, but for its knowledge of the fact that other hospital Defendants were choosing to require ABEM certification for their emergency medicine staff, have chosen not to do so. Nor does it show that any hospital Defendant has any motive to join the purported conspiracy. The absence of evidence of such motive can readily be explained by the fact that none of the hospital Defendants have been shown to be in competition with each other. The provision of emergency medical services by its nature is constrained by the need for immediate treatment and the proximity of an emergency treatment facility; the record is simply devoid of any evidence of competition among these Defendants (although some Defendants are located in the same area, e.g. Children's Hospital (San Diego), Tri-City Medical Center (San Diego), University of California (San Diego) Medical Center) for such services. Compare Interstate Circuit, supra.

  Moreover, it does not follow, as Plaintiffs strongly argue, that the hospital Defendants support the conspiracy to assure a steady supply of cheaper labor to staff their emergency medicine residency programs, as there is also no evidence in the record suggesting that without the disputed ABEM based requirements the supply of candidates to these programs would be reduced or that the wages of those selected would necessarily be higher. Plaintiffs' contention, see Defendants' Reply Memorandum at pp. 73-74, that there is a shortage of residency programs in emergency medicine contradicts the notion that the closure of the practice track has increased the supply of applicants. Further, although each of the hospital Defendants may have decided to require ABEM or other certification as prerequisites to practice emergency medicine, there is no indication that this requirement was imposed for any anticompetitive reason, rather, the hospital Defendants could reasonably believe that ABEM certification demonstrates that a physician so certified is well-trained and less likely to make mistakes leading to liability of the hospital. See Todorov, supra.

  Further, as discussed, Discussion Section II(b)(3), supra, to hold a defendant as a participant in a conspiracy, the defendant "must by word, deed or conduct intentionally join the illicit enterprise; mere association with conspirators and presence at the scene of a conspiracy, even coupled with knowledge that wrongful conduct by others is being engaged in, are not by themselves sufficient to support the inference of knowing and intentional attachment to an illegal enterprise." Hunt, 465 F. Supp. at 231. In this case, even if the Plaintiffs demonstrated that a conspiracy existed and involved some of the physicians listed by Plaintiffs or the hospital Defendants, "the fact that the other [defendants] attended meetings at which the subject of the conspiracy was discussed would not by itself establish intentional membership in the conspiracy." Id.

  While Plaintiffs' allegations initially appear to suggest that a corrupt agreement or conspiracy may exist, upon closer scrutiny, the Plaintiffs have failed to demonstrate and provide factual support that ABEM, CORD, and the hospital Defendants, as discussed, have a knowing and intentional attachment to some illegal agreement. As the Plaintiffs have not met their burden of proof in demonstrating that the hospital Defendants are involved in any corrupt agreement, combination, or conspiracy, having a common illegal purpose, they have failed to demonstrate even a prima facie case of conspiracy sufficient to form a predicate for personal jurisdiction under Section 302(a)(2) as to all of the Defendants.

  ii. Over Act in Furtherance of Agreement153

  As an additional prerequisite to personal jurisdiction under Section 302(a)(2), there must have been at least one overt act by one of the co-conspirators in furtherance of the unlawful plan. Chrysler Capital Corp., 778 F. Supp. at 1267 (any act by a conspirator in furtherance of the unlawful plan is an overt act). Plaintiffs assert that the primary corrupt agreements and overt acts in which the hospital Defendants' agents participated are the closure of the practice track, the refusal to extend the cutoff date or reopen the practice track, the creation of new practice tracks for internal medicine physicians only, imposing the RRC-EM's requirements for faculty and staff of emergency medicine residency training programs, the rejection of alternative residency programs, establishing policies encouraging the public to seek services of board certified physicians and hospitals to employ only board certified physicians, and the refusal of the hospitals to hire qualified, experienced emergency physicians solely because they are not ABEM certified or eligible. Plaintiffs' Memorandum of Law at V-102 - V-103. Plaintiffs allege that each of these overt acts "was committed for the purpose of protecting the residency programs, ensuring a high demand for the defendant hospitals' residency training program and protecting the graduating residents from competition in the marketplace, in order to ensure continuing demand for the defendants' programs in the future." Plaintiffs' Memorandum of Law at V-103. Assuming that a corrupt conspiracy or combination, in which Defendants participate, exists, the acts alleged by the Plaintiffs should be considered overt acts in furtherance of this agreement. However, as discussed, the Plaintiffs have failed to present facts demonstrating that the hospital Defendants agreed among themselves, or through the various co-conspirator professional emergency medicine organizations, to impose certification requirements for positions or privileges within each individual institution directly affecting Plaintiffs.

  iii. Parties' Intentional Participation in Furtherance of Plan or Purpose

  Plaintiffs must also show that for each Defendant, against whom personal jurisdiction is sought, based upon Section 302(a)(2), such Defendant intentionally participated in the common plan for purposes of advancing their illegal goal. However, rather than alleging and discussing specific facts pertinent to each Defendant, the Plaintiffs attempt to meet this requirement by pointing out that the hospital Defendants became members of the conspiracy through the participation of their respective staff or faculty physicians in the co-conspirator professional organizations. Plaintiffs' Memorandum of Law at V-95. But, again as discussed, Discussion Section II(3)(b)(i), it cannot reasonably be inferred that with the exception of the physicians sent to CORD meetings, the individual physicians affiliated with the hospital Defendants participated in these professional organizations as representatives or agents of the hospitals or, even assuming antitrust misconduct by the various professional organizations, that such can be attributed to the member physicians. See Discussion Section II(3)(b)(i), supra. However, as to CORD, the record shows only that the physicians represented the residency programs operated by the hospitals rather than the hospitals themselves.

  Plaintiffs advance agency theories to illustrate why the hospital Defendants are liable for the acts of the individual physicians affiliated with them. Specifically, Plaintiffs contend that the physicians had apparent authority from the hospitals to participate in professional organizations which set the standards for training, practice, and accreditation of emergency physicians and residency programs. However, under New York law, to recover on a theory of apparent authority, a third party must establish that the principal was responsible for the appearance of authority in an putative agent to conduct a transaction on behalf of the principal to be bound, and the third party must reasonably rely on the representations of the agent. Herbert Construction Co. v. Continental Ins. Co., 931 F.2d 989, 993 (2d Cir. 1991) (citing Ford v. Unity Hospital, 32 N.Y.2d 464, 299 N.E.2d 659, 664, 346 N.Y.S.2d 238 (N.Y. 1973) and Hallock v. State, 64 N.Y.2d 224, 474 N.E.2d 1178, 1181, 485 N.Y.S.2d 510 (N.Y. 1984)).

  In this case, there is no indication that any hospital Defendant granted individual staff or faculty physicians authority to participate in professional organizations, including CORD, on behalf of the hospital. Further, even if the hospitals had granted the physicians authority, or made it appear to a third party that these physicians had authority to participate in professional organizations on behalf of their respective hospitals, there is no evidence in the record that anyone reasonably relied on any representations to this effect made by any of the individual physicians named by Plaintiffs. Significantly, for example, Plaintiffs have not established that the co-conspirator professional organizations would not have taken the actions, in the form of policies, requirements, and the like, which Plaintiffs rely upon to demonstrate concerted action and overt acts, unless the individual physician members also spoke for and could vouch for the concurrence of their institutions in such actions.

  Plaintiffs offer Seligson v. New York Produce Exchange, 378 F. Supp. 1076 (S.D.N.Y. 1974), and Vandervelde v. Put & Call Brokers & Dealers, 344 F. Supp. 118 (S.D.N.Y. 1972), in support of their agency theories, however, both cases are clearly distinguishable from that at bar. Vandervelde was a civil antitrust action by a dealer against an association of put and call dealers, the association's individual members, and the firms associated with the individual members. Vandervelde, supra, at 125. The association was made up entirely of individual members, so that a corporation involved in the put and call business could become an associated member and use the association's facilities only if one of its executive officers was a member. In finding certain of the put and call firms liable, the court set guidelines for the imputation of liability from individual members of the defendant association to their respective firms. The court held that mere membership in the association or on a committee of the association was not sufficient proof of connection or ratification of illicit conduct, rather, to link a member firm to the acts of an organization, the plaintiff must demonstrate that the member knew of and condoned the acts in issue. Vandervelde, supra, at 155. Thus, the evidence in Vandervelde "clearly indicated that the activities of the individual defendants in the management of the Association were well within the scope of their authority [as principals of the broker-dealer defendants] from the firms they represented; indeed in most cases the firms were dominated by these individuals and they managed the Association as well." Vandervelde, supra, at 156. The court also found that the nature of the relationship between the firms and the association justified a finding that the participation of option brokers and dealers in the activities of the association was an integral part of their employment in the industry, and, further, the firms had a direct interest in the subject matter of the controversy. Vandervelde, supra, at 156.

  Seligson involved an action filed against the New York Produce Exchange, its officers and board of managers and the clearing association, its officers and board of managers, to recover for the alleged failure of the exchange and association to maintain an orderly market, failure to regulate the member-broker's wrongful conduct, and antitrust violations. After a decline in the market, a company holding a significant number of contract options was forced into bankruptcy. The exchange's executive committee and the association's board of directors met and determined that both the bankrupt company, and another affiliated with it would not be able to meet their margin requirements if the market continued to drop, therefore, after discussions with several members of the exchange's board of managers, the executive committee recommended to the exchange board that trading be suspended in that particular futures market; the board of managers formally ratified this decision the next day. Seligson, supra, at 1082. Plaintiff charged that the defendants failed to prevent the manipulation of prices when they should have known that the bankrupt organization's accumulation of futures artificially affected prices and threatened the market. The plaintiff argued that although defendants knew that immediate suspension of trading was necessary to preserve the market, the market was kept open for six days so that prices could decline, and then suspended trading to protect the defendants' interests. Seligson, supra, at 1083. Plaintiff asserted that the defendants conspired to control and fix the prices of certain types of contracts, and profit as the result. Seligson, supra, at 1083. Several facts led the court to determine that there was a partnership between the association and the exchange in regulating the futures market, including the fact that the association's board of directors met with the exchange executive committee in order to decide whether trading should be suspended. Seligson, supra, at 1087. As the result of the functional relationship between the association and the exchange, the court found that the guidelines developed for imputation of liability in Vandervelde were well-suited to the case. Seligson, supra, at 1088-89.

  This case, unlike Vandervelde and Seligson, involves physicians who work or are granted privileges to practice in the emergency departments of the hospital Defendants. Regardless of the fact that the hospitals allow and support affiliations with professional organizations which relate to the professional activities of the physicians and whose activities also have professional significance to the operation of the hospital, such membership does not impute liability to the hospitals for any actions taken by these professional organizations. Bishop v. Commodity Exchange, Inc., 562 F. Supp. 516, 519 (S.D.N.Y. 1983); Hunt, 465 F. Supp. at 231. Moreover, based on the record, any particular hospital Defendants' authorization and approval of a physician's participation in such professional organizations does not constitute authority to engage in specific conduct nor for any acts, particularly tortious acts, on behalf of the hospital. In contrast to Vandervelde, there is no evidence here that the physicians are senior executives or principals of their respective hospitals or that the hospital Defendants sponsor or control the professional groups in question. These physicians, because of their positions with respect to the provision of emergency medical services by the hospitals, may well influence the decisions taken by the officers of the hospital Defendants, but, so far as the record shows, they do not exercise such executive authority as to hospitals themselves. Further, unlike the direct involvement in defendant's decision making by the principals in Seligson, there is no evidence that any hospital Defendant directly collaborated with ABEM in its individual decision to close the practice track.

  Plaintiffs also point to the fact that the operation of emergency medicine residency training programs benefits the hospital Defendants. Plaintiffs assert that as hospitals receive a flow of patients through emergency room doors, the hospital realizes additional revenues as well as federal funding to support its residency programs. See Plaintiffs' Memorandum of Law, Section V. Further, as the requirement of ABEM certification is intended to maintain high quality emergency care, the hospitals thus benefit directly from the alleged anticompetitive effects of the practice track closure. See Plaintiffs' Memorandum of Law at V-102 - V-110. However, there is no indication that the hospital Defendants would be unable to operate emergency departments or to receive federal funding in support of emergency residency training, or the arguable "good-will" which may redound to them as a result of the academic distinctions achieved by their respective teaching faculty absent a requirement that emergency physicians be ABEM certified or that the residency programs only employ certified emergency physicians.

  Plaintiffs also claim that without federally subsidized residents and faculty-physicians, the hospital Defendants would be required to pay for full-time emergency physicians. Plaintiffs' Memorandum of Law at V-106. However, there is no basis in the record upon which it can be reasonably inferred that federal subsidies would be lost absent the involvement of the hospitals' physicians in the activities of the accrediting and professional organizations or the existence of ABEM certified physicians. Moreover, these "benefits" do not flow from the activities of the representative physicians in connection with the work of the professional organizations, rather they would accrue regardless of whether the organizations existed or not. Therefore, despite the Plaintiffs' assertion that ABEM perceives its certification as somehow "protecting" the hospital Defendants residency programs, see Plaintiffs Memorandum of Law at V-104, this statement does justify ignoring the absence of any demonstrable connection between the existence or interrelationship of the alleged co-conspirator professional organizations or the activities of the emergency physicians as members and the successful operation of the hospital Defendants' emergency medicine residency programs. Thus, the fact that the physicians' membership or participation in the work of the outside emergency medicine organizations may be supported by the respective hospital Defendants is not sufficiently substantial in relation to the primary duties of the physicians to provide services to the hospitals' residency programs to justify finding that the physicians act as agents of the hospitals in relation to their outside professional organization activities.

  Members of any recognized profession inherently carry obligations both to the members of the public they seek to serve, in this case patients, by providing competent service, and the profession itself. When, therefore, a physician, or other member of a recognized profession, even if performing professional services as a salaried employee, also engages in activities as a member of professional organizations established for the purposes of advancing the interests of the profession as a whole and the quality of services performed by its members, it cannot reasonably be said that the physician, without a showing of more direct consequences of a substantial economic or other identity of interest between the asserted principal or employer and the professional organization, see, e.g., Seligson, supra; Vandervelde, supra, is acting as an agent of such principal or employer in engaging in the work or governance of the professional organizations. Accordingly, despite the Plaintiffs' establishment of the fact that the physicians' involvement in outside professional organizations is supported, at least financially speaking, by the hospitals, such does not cast the relationship between the hospitals and the physicians for these purposes as one of principal and agent justifying attribution of liability for antitrust conduct by either the physicians or the organizations they operate.

  Thus, the Plaintiffs' agency theories - to establish the required degree of participation by hospital Defendants in the conspiracy - cannot prevail in this case, as the relationship between the hospital Defendants and the co-conspirator professional organizations, including CORD, is too attenuated to permit the conduct of individual physicians, as members, to be imputed to the hospital Defendants. Additionally, as noted, the Plaintiffs have not presented evidence showing how each hospital Defendant induced these organizations to believe that staff physicians affiliated with the hospitals had authority to act on behalf of their respective hospitals, and that the Plaintiffs were injured by representations made by the emergency physicians because they acted on those representations.

  With respect to the hospital Defendants' affiliation with CORD, whose members are the hospital emergency medicine residency programs, *fn154" the fact that the physicians represented the hospital Defendants' residency programs at CORD meetings is also insufficient to establish intentional membership on the part of the hospital Defendants in the alleged conspiracy, even if the subject of the conspiracy was discussed at those meetings. Hunt, supra, at 231 (the fact that others attended meetings at which the subject matter of the conspiracy was discussed does not establish intentional membership in the conspiracy). Further, if affiliation with CORD, through a residency program, was enough to demonstrate that each hospital Defendant was involved in a conspiracy against non-ABEM certified or eligible physicians, then all hospitals which maintain accredited emergency medicine residency programs and send representatives to CORD meetings would be involved in the conspiracy, see Merkel Associates, Inc. v. Bellofram Corporation, 437 F. Supp. 612, 618 (W.D.N.Y. 1977) (merely showing the business relationship of the defendants without more is insufficient to demonstrate a conspiracy, otherwise, all interrelated groups could be charged with conspiracy when any one member of the group acts), a fact Plaintiffs have, thus far, not alleged. See Plaintiffs' Memorandum of Law, Appendix Volume 2, Exhibit 3, Doc. Dos. C138 - C139, C258 - C262, C299 - C304, C364, C384 - C385, C429 - C595.

  iv. Resulting Damage or Injury

  Plaintiffs have the burden of demonstrating that the Defendants' action interfered with competition. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 29, 80 L. Ed. 2d 2, 104 S. Ct. 1551 (1984). Although certain individual Plaintiffs have declared that they were personally damaged, injury to an antitrust plaintiff is insufficient to prove injury to competition. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977); Volmar Distributors, Inc. v. The New York Post Co., Inc., 825 F. Supp. 1153, 1159-60 (S.D.N.Y. 1993). See also Daniel C. Richman, Antitrust Standing, Antitrust Injury, and the Per Se Standard, 93 Yale L.J. 1309, 1309-10, 1312 (1984) (antitrust laws protect competition as a whole, not individual competitors, thus, an antitrust plaintiff must relate his private injury to a more public wrong, a threat to competition in his own market). Plaintiffs must instead prove that competition in a relevant market has been harmed. Jefferson Parish, supra, at 29.

  In this case, the relevant market is the market for ABEM certified and ABEM eligible emergency physicians. Second Amended Complaint at PP91-92; Plaintiffs' Memorandum of Law at V-60 - V-73. Plaintiffs assert that the Defendants' and co-conspirators' unlawful actions restricted output and reduced competition in the market for ABEM certified or eligible physicians, thereby artificially raising the price of ABEM certified or eligible physicians and reducing competition by restricting the supply of emergency physicians eligible to sit for the certification examination. Second Amended Complaint at P92. Further, by restricting the supply of ABEM certified and eligible physicians, while the demand for emergency medical services continues to rise, hospital emergency departments have, according to Plaintiffs, become overcrowded. Second Amended Complaint at PP97-102. Thus, Plaintiffs allege that the professional organization co-conspirators and Defendants possess market power within the relevant market and have unlawfully exercised that market power. Id. at P93. *fn155"

  To establish this antitrust injury, the Plaintiffs have presented data indicating that there are, in the United States, approximately 25,000 non-certified emergency physicians whereas there are only 8,000 practice track certified emergency physicians, and 4,400 residency trained and certified emergency physicians. Plaintiffs' Memorandum of Law at V-61; Appendix Volume 3, Doc. Nos. 1720-1722, 1951-1955, 3205. Plaintiffs nevertheless assert that there is an inadequate supply of certified emergency physicians, as ABEM and its co-conspirators closed the practice track to physicians whose qualifications are equivalent or superior to those of ABEM certified or eligible physicians. Plaintiffs' Memorandum of Law at V-64 - V-68; Appendix Volume 1, Exhibits 4, 5. This purported shortage of board certified emergency medicine physicians has resulted in overcrowding in emergency departments, adversely affecting the needs and interests of the public. Plaintiffs' Memorandum of Law, Appendix Volume 1, Exhibit 4 PP4 - 5, Exhibit 5, Appendix Volume 3, Doc. No. 284, 851, 1491-1492, 1723, 1730-1731, 1798-1800, 1951-1955, 2463, 2825, 2914, 2919, 2926-3927, 3144-3145. Thus, Plaintiffs have for purposes of this criterion sufficiently shown, by a preponderance of the evidence, an injury to competition by demonstrating that closing the practice track mode of eligibility has caused a shortage of certified physicians in the field of emergency medicine, as more hospitals are requiring ABEM certification or eligibility for staff physicians, and that this shortage has affected the need and interests of consumers.

  c. Specific Facts Alleged Warranting Inference that Each Defendant is a Member of the Conspiracy

  Plaintiffs must not only establish for purposes of these motions their claim of conspiracy by a preponderance of the evidence, but they must show a sufficient relationship between each Defendant and the conspiracy to warrant the inference that each hospital Defendant was a member of the conspiracy and set forth evidentiary facts to connect the Defendants with transactions related to the conspiracy. Chrysler Capital Corp., supra, 778 F. Supp. at 1268-69. In Discussion Section II(3)(b)(i), this court addressed the Plaintiffs' allegations that each hospital Defendant participated in the conspiracy by refusing to hire emergency physicians unless they were ABEM certified or eligible. However, as the Plaintiffs have failed, on the instant motion, to demonstrate that any corrupt agreement or conspiracy exists involving the non-resident hospital Defendants, the facts alleged regarding each such hospital's refusal to hire non-ABEM certified or eligible emergency physicians are necessarily insufficient to tie such Defendants to the conspiracy as alleged.

  d. Imputing Conduct to Out-of-State Co-conspirators

  The Second Circuit has held that an antitrust plaintiff need not demonstrate a formal agency relationship between the defendant and its co-conspirators to impute activity of a co-conspirator in New York, whether the co-conspirator is then physically within the state or not, to the non-resident defendant provided the plaintiff shows that (i) the defendant had an awareness of the effects of the conspiracy in New York, (ii) the activity of the co-conspirators in New York was to benefit the out-of-state co-conspirators, and (iii) the co-conspirators who acted in New York acted at the direction, under the control, at the request of, or on behalf of the out-of-state defendants. Lehigh Valley Industries, 527 F.2d at 90 n. 3; Chrysler Capital Corp., supra, at 1269 (citations omitted); Dixon v. Mack, 507 F. Supp. 345, 350-51 (S.D.N.Y. 1980).

  i. Defendants' Awareness that its Activity had Effects in New York

  As indicated by Defendants, Plaintiffs have incorrectly stated the first point of the test for determining the required quality of awareness by suggesting that Plaintiffs need only show that the "hospital defendants and CORD had an awareness of the effects of the conspiracy in New York." Plaintiffs' Memorandum of Law at V-133; Defendants' Joint Reply Memorandum at p. 47. The test, however, requires that Plaintiffs demonstrate that each Defendant over whom jurisdiction is sought "have an awareness of the effects in New York of its activity." Chrysler Capital Corp., supra, at 1269; Dixon, supra, at 350 (emphasis added). See Chrysler Capital Corp., supra, at 1269 (where defendant in California was familiar enough with a sale and leaseback transaction to know that a New York-based investor was involved in the transaction or that the negotiations and closing were to take place in New York, its activities with respect to the transaction would be known to have an effect in New York).

  In this case, Plaintiffs identified only two activities in New York connecting the hospital Defendants and CORD to the conspiracy: such Defendants knew that requiring ABEM eligibility affected physicians in every state, and physicians practicing at some of the hospital Defendants are affiliated with various emergency medicine professional organizations. However, as none of the hospital Defendants pertinent to this issue are located in New York, *fn156" it is reasonable to find that the non-resident hospital Defendants would not perceive that their hiring requirements would affect physicians outside the state in which each such hospital Defendant is located. Plaintiffs, moreover, have adduced no evidence to support an inference that each non-resident hospital Defendant had any awareness that its credentialing policies for emergency medicine physicians would involve New York resident physicians. Further, it is speculative to assert that the hospital Defendants would believe or have any reason to believe that their faculty members' memberships in the various professional organizations discussed would have an effect on employment of emergency physicians in New York, including any of the Plaintiffs. The court therefore finds that Plaintiffs have not shown that any of the Defendants asserting personal jurisdiction defenses have participated in an activity in connection with the described conspiracy which would lead these Defendants to have an awareness of the effects of their own actions in New York.

  ii. Benefit of the Activity in New York

  Plaintiffs assert that ABEM's activities in New York, including wrongfully rejecting applications and denying the appeals of New York resident Plaintiffs, benefitted the co-conspirator Defendants by increasing the demand for emergency medicine residency programs, the benefits received by those programs, and the competitive advantages provided to board certified emergency physicians by ABEM certification. Plaintiffs' Memorandum of Law at V-134. However, as discussed, Discussion Section II(3)(a), supra, ABEM's actions did not take place in New York as required by the caselaw interpreting Section 302(a)(2), compare Chrysler Capital Corp., supra, (defendant's co-conspirators delivered warranties and representations and participated in closing, therefore financial transaction in New York), rather, the injuries resulting from ABEM's denials of some of the Plaintiffs' applications occurred in New York. See Discussion Section II(3)(a). Even assuming ABEM's application denials do constitute activities within New York for jurisdictional purposes, any relationship between these denials and the increasing demand for emergency medicine residency training programs which may be of some benefit to a hospital Defendant and ABEM certified physicians is tenuous at best. Plaintiffs' Memorandum of Law at V-134 - V-135. The evidence presented strongly points, rather, to a finding that the vast majority of available emergency medicine training residencies for any of the hospital Defendants are filled by persons from places other than New York. Plaintiffs' Memorandum of Law at III-13 - III-80. There is, moreover, no evidence to suggest that the hospital Defendants are enjoying a higher rate of applications, that the applicants are of better quality or that they are paid lower wages by hospital Defendants than had been the case prior to ABEM's closing the practice track. Indeed, there is no discernable evidence that the Defendants' closure of the practice track had any effect on resident interest, quality or costs whatsoever.

  Thus, the Plaintiffs have failed to show that the activity of the co-conspirator ABEM in New York was to the benefit of any of the out-of-state hospital Defendant conspirators.

  iii. Exercise of Discretion or Control

  Plaintiffs allege that ABEM was a co-conspirator which closed the practice track, and subsequently rejected applicants who did not meet the practice track requirements by June 30, 1988. Plaintiffs' Memorandum of Law at V-135. Plaintiffs further assert that RRC-EM and ACEP policies applied to and affected hiring practices in New York. Id. Although some of the hospital Defendants followed the requirements set by the RRC-EM and ACEP, see Discussion Section II (b) (3) (b) (i), supra, Plaintiffs have failed to demonstrate that these hospital Defendants exercised discretion or control over ABEM, the co-conspirator acting in New York, or that ABEM acted at the request of or on behalf of the other out-of-state hospital Defendants. Accordingly, the conduct of a co-conspirator, ABEM, in New York may not, under the test established in Chrysler Capital Corp., supra, be imputed to those out-of-state hospital Defendants.

  As Plaintiffs have not presented proof sufficient to demonstrate that the hospital Defendants and their co-conspirators were acting as the result of a "conscious commitment to a common scheme designed to achieve an unlawful objective," they have failed to establish an antitrust conspiracy justifying a finding of personal jurisdiction in New York pursuant to Section 302 (a) (2) by a preponderance of evidence. Monsanto, 465 U.S. at 764. See Chrysler Capital Corp., supra, at 1266 (plaintiff has the ultimate burden of establishing jurisdiction over the defendant by a preponderance of the evidence where there has been discovery on jurisdictional issues) (citing Marine Midland Bank, 664 F.2d at 904).

  Assuming that a corrupt conspiracy or agreement did exist, Plaintiffs have demonstrated that several acts of the Defendants could be considered overt acts in furtherance of the illegal agreement and that an antitrust injury exists. However, the Plaintiffs failed to establish the intentional participation of the Defendants in furtherance of the antitrust conspiracy, and specific facts warranting the inference that each Defendant is a member of the conspiracy. For these reasons, the court finds that personal jurisdiction, under Plaintiffs' conspiracy theory, should not exist over any of the hospital Defendants or CORD.

  4. Jurisdiction Based on Tortious Acts under Sections 302 (a) (3) (i) and 302 (a) (3) (ii)

  Plaintiffs also argue that the Defendants are subject to personal jurisdiction under Section 302 (a) (3) of the New York Civil Practice Law and Rules, which provides jurisdiction over a nondomiciliary if such nondomiciliary (1) commits a tortious act outside the state of New York that causes injury to a person or property inside the state, and (2) either (a) regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or services rendered in the state, or (b) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. N.Y. Civ. Prac. L. & R. § 302 (a) (3) (McKinney 1990).

  The occurrence of a tortious injury in New York by itself is insufficient to provide the basis for personal jurisdiction under Section 302 (a) (3). N.Y. Civ. Prac. L. & R. § 302 (a) (3) (McKinney 1990) (Practice Commentaries C302.19, McLaughlin). The purpose of the additional requirements of Sections 302 (a) (3) (i) and (ii) is to ensure that a defendant has sufficient contacts with New York that the defendant could reasonably anticipate being haled into a New York court. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 739 (2d Cir. 1985); Martinez v. American Standard, 91 A.D.2d 652, 457 N.Y.S.2d 97, 98-99 (App.Div. 2d Dep't. 1982), aff'd, 60 N.Y.2d 873, 458 N.E.2d 826, 470 N.Y.S.2d 367 (N.Y. 1983). Plaintiffs contend that the Defendants and their professional emergency medicine organization co-conspirators have committed numerous acts in furtherance of the conspiracy which have caused injury in New York, including the loss of jobs, promotions, and directorships, discrimination in remuneration and conditions of employment, the inability to apply for new positions, and also injuries to the public, such as overcrowding and higher costs in emergency medicine departments. Plaintiffs' Memorandum of Law at V-136 - V-137. Plaintiffs assert that many of the overt acts which have caused tortious injury in New York occurred during meetings of CORD, SAEM, ACEP, and other co-conspirator professional organizations. Plaintiffs' Memorandum of Law at V-136.

  However, as discussed, see Discussion Section II (3) (b) (i), supra, the decisions and conduct of these organizations cannot be imputed to the Defendant hospitals. Moreover, even if the hospital Defendants rejected applicants for jobs from New York on the grounds that the physicians were not ABEM certified or eligible, this would not be a sufficient showing to subject the defendants to personal jurisdiction in New York, as an injury, for this purpose, does not occur within the state simply because the plaintiff is a resident. *fn157" Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir. 1990); Benjamin Sheridan Corporation v. Benjamin Air Rifle Company, 827 F. Supp. 171, 178 (W.D.N.Y. 1993). The situs of an injury is the "'location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff.'" Mareno, supra, at 1046 (quoting Carte v. Parkoff, 152 A.D.2d 615, 543 N.Y.S.2d 718, 719 (App.Div. 2d Dep't. 1989); Benjamin Sheridan, supra, at 178; United Bank of Kuwait, PLC v. James M. Bridges, Ltd., 766 F. Supp. 113, 116 (S.D.N.Y. 1991) ("New York courts uniformly hold that the situs of a nonphysical commercial injury is 'where the critical events associated with the dispute took place'") (quoting American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 433 (2d Cir. 1971)); Spectacular Promotions, Inc. v. Radio Station WING, 272 F. Supp. 734, 737 (E.D.N.Y. 1967). Here, some of the "critical events" pertaining to Plaintiffs' claims occurred at ABEM's office in Michigan. As the "occurrence of financial consequences in New York due to the fortuitous location of the plaintiffs in New York is not a sufficient basis for jurisdiction under [Section] 302 (a) (3)," Benjamin Sheridan, supra, at 178, Plaintiffs have failed to demonstrate that the Defendants' out-of-state acts resulted in an injury in New York.

  Further, even if Plaintiffs demonstrated an injury in New York, they have failed to show that the Defendants solicit or are doing business in New York, *fn158" or that any of the Defendants receive substantial revenues from services rendered in New York, therefore, they must show that each of the Defendants should reasonably expect that their acts would have consequences in New York and that they derive substantial revenue from interstate commerce. N.Y.Civ.Prac. L. & R. § 302 (a) (3) (ii) (McKinney 1990).

  Plaintiffs contend that the Defendants should expect that their acts committed in furtherance of the conspiracy would have consequences in New York. Plaintiffs' Memorandum of Law at V-137 - V-138. However, the only acts which Plaintiffs attribute to the hospital Defendants are requiring physicians to be ABEM certified or eligible and having staff physicians who participate in the co-conspirator professional organizations discussed. *fn159" As the test of whether a defendant expects or should reasonably expect his act to have consequences within the state is an objective one, Allen v. Auto Specialties Mfg. Co., 45 A.D.2d 331, 357 N.Y.S.2d 547, 550 (App.Div. 3d Dep't. 1974), the hospital Defendants in this case had no reason to believe or foresee that establishment of a general credentialing prerequisite for employment of an emergency medicine physician (including the denial of a position as an emergency physician) or the membership of its faculty in outside professional organizations would cause any consequences in New York. To suggest that foreseeable consequences spring from the mere possibility that New York residents may be thereby rendered ineligible for employment elsewhere substitutes logic for fact and, if followed, would render any hospital Defendant subject to personal jurisdiction in practically every state under a comparable long-arm provision. Thus, the hospital Defendants cannot be subjected to jurisdiction in New York on the basis of the acts alleged by Plaintiffs. See N.Y.Civ. Prac. L. & R. § 302 (a) (3) (McKinney 1990) (Practice Commentaries C302:24, McLaughlin) (Section 302 (a) (3) requires that the consequences in New York be foreseeable and other collateral activities occur, such as substantial interstate commerce).

  Finally, whether a defendant derived substantial revenue from interstate commerce is determined by using both quantitative and qualitative approaches. Allen v. Canadian General Electric Company, Ltd., 65 A.D.2d 39, 410 N.Y.S.2d 707, 709 (App.Div. 3d Dep't. 1978). Hence, if a defendant's New York income is a substantial sum of money or a large proportion of its revenues, the income is sufficient to support jurisdiction. N.Y.Civ. Prac. L. & R. § 302 (a) (3) (ii) (McKinney 1990) (Practice Commentaries C302:23, McLaughlin). See, e.g., Auto Specialties Mfg. Co., supra, at 550 (comparing a defendant's gross revenue from interstate commerce with its total gross revenue, and its net profit from interstate commerce with its total net profit); Canadian General Electric, supra, at 709 (although only 1% of defendant's gross income was from New York sources, it amounted to over $ 8 million, and was deemed substantial enough to support jurisdiction).

  In this case, each of the hospital Defendants is an entity which produces millions of dollars in revenue each year. Plaintiffs' Memorandum of Law, Exhibit F. Therefore, each Defendant, as a hospital, collects a great deal of money for services provided in the state in which its respective hospital is located, although some of this money also derives from patients residing outside of the state. Id. Based on the documents and exhibits presented by Plaintiffs, each hospital Defendant appears to receive sufficient out-of-state revenues to meet the requirement of Section 302 (a) (3) (ii). *fn160" See, e.g., Plaintiffs' Memorandum of Law, Exhibit F; Appendix Volumes 12 and 13, Responses to Interrogatory 7. However, as the Plaintiffs have failed to demonstrate sufficient facts to establish the remaining jurisdictional prerequisites under Section 302 (a) (3), personal jurisdiction over the Defendants does not exist under that section.

  Summary of Findings Regarding Personal Jurisdiction

  Under Section 12 of the Clayton Act, each of the Defendants which is a domestic corporation is subject to personal jurisdiction in this district, including the Council of Emergency Medicine Residency Directors, Children's Hospital (San Diego), Children's Hospital of Michigan, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center-Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Oregon Health Sciences University Hospital, Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson). Thus, the motions to dismiss for lack of personal jurisdiction as to these Defendants should be denied.

  Alternatively, pursuant to Section 301 of the New York Civil Practice Law and Rules, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, is subject to personal jurisdiction as doing or soliciting business in New York. Plaintiffs failed to demonstrate that the remaining Defendants who have moved to dismiss for lack of personal jurisdiction are doing or soliciting business so as to subject them to jurisdiction under this statute.

  Section 302 (a) (1) does not provide a basis for personal jurisdiction over any of the Defendants objecting to jurisdiction as none of them is transacting business in New York within the meaning of the section. Plaintiffs also failed to demonstrate conspiracy jurisdiction over CORD and the hospital Defendants pursuant to Section 302 (a) (2) of the New York CPLR. Finally, none of the Defendants is subject to personal jurisdiction under Section 302 (a) (3) as Plaintiffs did not show that a tortious act outside New York caused injury within the state as required by the statute.

  Therefore, the motions to dismiss for lack of personal jurisdiction as to Ohio State University Hospital, Tri-City Medical Center, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center should be granted as personal jurisdiction does not exist over these Defendants.

  III. Venue

  Venue requirements serve to protect a defendant from the inconvenience of defending an action in a court that is either remote from the defendant's residence or from the place where the acts underlying the controversy occurred. *fn161" VE Holding Corporation v. Johnson Gas Appliance Company, 917 F.2d 1574, 1576 (D.C. Cir. 1990) (citing 1A(2) Moore's Federal Practice P0.340). The federal venue rules achieve this purpose by limiting the plaintiff's choice of forum to certain courts among all those which might otherwise acquire personal jurisdiction over the defendant. VE Holding Corporation, supra, at 1576.

  In considering motions challenging venue under Fed.R.Civ.P. 12 (b) (3), the plaintiff has the burden of establishing venue for each claim set forth in the complaint. French Transit, Ltd. v. Modern Coupon Systems, Inc., 858 F. Supp. 22, 25 (S.D.N.Y. 1994); Pocahontas Supreme Coal Company, Inc. v. National Mines Corp., 90 F.R.D. 67, 69 (S.D.N.Y. 1981). Plaintiffs claim that venue is established in this district under Section 12 of the Clayton Act, 15 U.S.C. § 22, and the general venue statute, 28 U.S.C. § 1391 (b). In applying the antitrust venue provisions, courts have concluded that Congress' intent was to enlarge the plaintiff's choice of forum by reading the Clayton Act's venue provisions as supplemental to, rather than superseding, the general venue provisions. Go-Video, 885 F.2d 1406, 1409; Kingsepp, 763 F. Supp. at 27-28. See Pure Oil Co. v. Suarez, 384 U.S. 202, 205, 16 L. Ed. 2d 474, 86 S. Ct. 1394 (1966) (the liberalizing purpose underlying the enactment of Section 1391 (c) on special venue provisions and the generality of Section 1391 (c)'s language support the view that it applies to all venue statutes using residence as a criteria). See also Bucyrus-Erie Co., 550 F. Supp. 1037, 1039, 1042 ("we find the availability of [Clayton Act] Section 12 service and personal jurisdiction do not depend on the venue requirements of section 12 being met and that satisfaction of venue under section 1391 (d) is sufficient"). Thus, the court must determine whether Plaintiffs have pleaded facts sufficient to satisfy either a general, or the specific antitrust, venue statute. Go-Video, supra, at 1409 (citations omitted).

  Several Defendants have moved to dismiss for improper venue, including ABEM, CORD, Children's Hospital (San Diego), Children's Hospital of Michigan, Detroit Receiving Hospital and University Health Center, Johns Hopkins Hospital, Loma Linda University Medical Center, Lutheran General, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center - Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Oregon Health Sciences University Hospital, St. Anthony Hospital, University Hospital at the University of New Mexico School of Medicine, University of Massachusetts Medical Center and University Medical Center (Tucson). *fn162"

  a. Venue in Antitrust Actions

  Section 12 of the Clayton Act provides that:

  

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.

  15 U.S.C. § 22 (1988).

  Although this provision sets out three distinct bases for venue of an action against a corporate defendant, including the ability to sue in any district in which the defendant is an inhabitant, is found, or transacts business, the Plaintiffs only contend that venue is proper here as the Defendants transact business in this district. Plaintiffs' Memorandum of Law at II-1 - II-29. In determining whether venue is proper under the Clayton Act, the court performs an analysis similar to that required for personal jurisdiction. See Grosser v. Commodity Exchange, Inc., 639 F. Supp. 1293, 1313 (S.D.N.Y. 1986), aff'd, 859 F.2d 148 (2d Cir. 1988) (transacting business for purposes of venue requires at least as much as the transacting business prong of New York CPLR Section 302 (a) (1)); Charles S. Ryan, The Expansion of Patent Venue under the Judicial Improvements and Access to Justice Act, 77 J.Pat. & Trademark Off. Soc'y 85, 98 (1995).

  The term "transacts business" in the venue provision of Section 12 of the Clayton Act was designed to broaden the jurisdiction of federal district courts in adjudicating antitrust cases. *fn163" United States v. Scophony Corp., 333 U.S. 795, 807, 809, 92 L. Ed. 1091, 68 S. Ct. 855 (1948); Eastman Kodak Company of New York v. Southern Photo Materials Co., 273 U.S. 359, 372, 71 L. Ed. 684, 47 S. Ct. 400 (1927). As the statutory standard, transacting business is therefore not intended to have a technical or legalistic meaning, rather, "a corporation is engaged in transacting business in a district . . . if in fact, in the ordinary and usual sense, it 'transacts business' therein of any substantial character." Eastman, supra, at 373. Hence, the practical everyday business or commercial concept of doing or carrying on business of any substantial character became the test of venue under Section 12. Scophony, supra, at 807; Eastman, supra, at 373. While the adoption, in Section 12, of the term "transacts business" was intended to broaden venue in federal antitrust cases, it is not without limitation, for the Supreme Court and lower courts have interpreted the statute to require, for proper venue, some amount of business continuity and certainly more than a few isolated and peripheral contacts with the particular judicial district. Scophony, supra; Eastman, supra.

  For a corporation to transact business under Section 12 of the Clayton Act, only a finding that the defendant is "engaging in any substantial business operations" within the jurisdiction is required. Scophony, supra, at 807; Pocahontas, supra, at 69. In determining, therefore, whether a corporate defendant is transacting business, the court must "look to 'the actual unity and continuity of the whole course of [the defendant's] conduct'" at the time the complaint was served on the defendant. *fn164" Scophony, supra, at 817. Among the factors to be considered are the existence of an office in the state, solicitation of business in the state, presence of employees in the state, presence of bank accounts or other property in the state, listing of a phone number, public relations or publicity work, sales, advertising, conducting litigation, planning and executing business tactics and strategy, obtaining commercial credit arrangements, and other business activities occurring in New York. Agra Chemical Distributing Co., Inc. v. Marion Laboratories, Inc., 523 F. Supp. 699, 702 (W.D.N.Y. 1981). In determining whether the Defendants are subject to venue in this district, the court must review each corporate Defendant's contacts with New York. Further, the totality of the circumstances must be taken into account, considering as a whole all acts and conduct of a corporation within a particular district, rather than separately considering isolated and fragmented contacts. Scophony, supra, at 817 (the determination of whether venue is proper over an entity must not be made "by atomizing [the acts of the defendant] into minute parts or events, in disregard of the actual unity and continuity of the whole course of conduct"); Golf City, Inc. v. Wilson Sporting Goods Co., 555 F.2d 426, 438 (5th Cir. 1977) (all contacts must be considered together to determine whether they constitute the transaction of business in the district in the ordinary and usual sense). In Scophony, the Court carefully analyzed the defendant's business purpose and found activity by its agents in New York in furtherance of that purpose to suffice for a finding of venue despite the fact that no revenue producing transactions occurred in New York and no goods were shipped into the state as a result.

  As the Plaintiffs assert that several contacts apply to all of the hospital Defendants, including the recruitment of physicians for emergency medicine residency programs through the MATCH, FREIDA and phone calls and letters to the applicants, national advertising for employment positions, and the effect of the conspiracy on physicians and consumers in this district, Plaintiffs' Memorandum of Law at II-4 - II-8, the court will address these contacts first.

  In Discussion Section II (b) (1), supra, it was explained that the MATCH and FREIDA were electronic information systems based in Illinois and Washington D.C., respectively. The MATCH is solely a service available to students and residency programs which sorts preferences after the recruitment process, in which neither the MATCH nor FREIDA is directly involved, is complete. FREIDA is exclusively an informational database which provides students, residents and fellows with information about hospital residency programs. Although both programs are utilized by students and residency programs throughout the country, no hospital or residency program has control over or responsibility for the programs. Thus, even when students are ranked and matched with respect to a particular residency program, this contact does not occur in the state in which the student or program is located, rather, the contact occurs in Washington D.C., where the sorting process takes place. See Selman, 494 F. Supp. at 610, 612 (no personal jurisdiction pursuant to Section 302 (a) (2) where the Association of American Medical Colleges sponsored the Coordinated Transfer Application System, located in Washington, D.C., which is a centralized application processing service for applicants to particular schools). Therefore, the mere ranking or matching of a student residing in this district at that time is not a sufficient basis to support a finding of venue in this district. *fn165" Further, the phone calls and letters sent to "recruit" physicians to the hospital Defendants' residency programs present de minimus contacts with this forum and are insufficient to support venue. See American Medicorp, Inc. v. Humana, Inc., 445 F. Supp. 573, 579 n. 2 (E.D.Pa. 1977) (recruitment visits, advertisements, letters, and attendance at industry meetings are clearly de minimus contacts, and lack merit as a basis for establishing venue) (citing Latch String, Inc. v. Rouse Co., 1977-1 Trade Cas. (CCH) P61,235 (D.D.C. 1977)).

  Plaintiffs also assert that many of the Defendants have placed advertisements in nationally distributed journals and publications, however, for purposes of Section 12, "'national advertising which finds its way into a particular jurisdiction is insufficient to support a finding of transaction of business.'" San Antonio Telephone Co., Inc. v. American Telephone and Telegraph Company, 499 F.2d 349, 351 n. 5 (5th Cir. 1974) (quoting Albert Levine Assoc. v. Bertoni & Cotti, 309 F. Supp. 456, 460 (S.D.N.Y. 1970)). Thus, advertisements placed in nationally distributed magazines and journals do not establish venue in any particular district.

  Plaintiffs argue that the Defendants which are corporations can be regarded as transacting business in this district as the effects of the conspiracy in violation of antitrust laws impacted upon emergency medicine physicians and on consumers in this district. Plaintiffs' Memorandum of Law at II-7 - II-8. However, if the Plaintiffs had, for purposes of these motions, established an antitrust conspiracy, such is an insufficient contact to support venue, as a conspiracy caused injury has been specifically rejected as a basis for establishing venue. San Antonio Telephone, supra, at 351 n. 3; Albert Levine, supra, at 461 (citing Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833 (2d Cir. 1957), cert. denied, 356 U.S. 936, 2 L. Ed. 2d 811, 78 S. Ct. 777 (1958)). See also Intermountain Ford Tractor Sales Company v. Massey-Ferguson Limited, 210 F. Supp. 930, 933 (D.Utah 1962), aff'd, 325 F.2d 713 (10th Cir.), cert. denied, 377 U.S. 931, 12 L. Ed. 2d 296, 84 S. Ct. 1334 (1964) (a conspiracy which has an impact within the district does not constitute transacting business for purposes of venue under Section 12).

  As none of these contacts, proffered by Plaintiffs, cumulatively provide a sufficient basis to support a finding of venue, founded upon the transaction of business in this district, the court will review the remaining contacts asserted with respect to each Defendant to determine whether venue is proper here.

  1. American Board of Emergency Medicine

  Plaintiffs, at the outset, contend that ABEM failed to assert the affirmative defense of improper venue in its response to the First Amended Complaint, participated in this action for several years, and then, for the first time, asserted improper venue in its Answer to the Second Amended Complaint, filed February 28, 1994. Plaintiffs' Memorandum of Law at II-26 n. 7. Plaintiffs further argue that even after ABEM asserted improper venue, ABEM failed to timely move to dismiss on this ground. Id.

  ABEM demurs that it did not contest venue with respect to the First Amended Complaint as, at that time, "it was arguable that a substantial part of the events giving rise to the claim occurred in this District;" the case was then a suit between one Western District of New York resident and ABEM. ABEM's Memorandum of Law in Support of Motion to Dismiss, filed July 22, 1994, at p. 2 n. 2. Now, however, the case involves nearly 200 individual Plaintiffs from thirty-four states and the District of Columbia, and ABEM believes that this district is no longer a dominant or even significant locus of relevant events. Id.

  Although generally a defense of improper venue is waived if it is neither made by motion under Fed.R.Civ.P. 12, nor included in a responsive pleading, the Second Circuit has stated that "a party cannot be deemed to have waived objections or defenses which are not known to be available at the time they could first have been made." Holzsager v. Valley Hospital, 646 F.2d 792, 796 (2d Cir. 1981). Thus, when Plaintiffs filed their Second Amended Complaint in January of 1994, adding one hundred and seventy-five additional Plaintiffs, *fn166" and twenty-eight hospitals as Defendants, and deleting Dr. Daniel's human rights law claim, the nature of the suit changed, including the arguable locus of relevant events. *fn167" Courts frequently excuse the failure to assert an affirmative defense which was not available at the time of the defendant's original answer. See, e.g., Glater v. Eli Lilly & Co., 712 F.2d 735, 738-39 (1st Cir. 1983) (defense of lack of personal jurisdiction not originally available because plaintiff's complaint did not set forth sufficient facts to put defendant on notice that her domicile was questionable); Holzsager, supra, at 796 (where the law of the circuit changed, defendant was allowed to assert objections or defenses at the first time they could have been made). Based upon these factors, ABEM may reasonably have believed, for the first time, it could viably interpose a venue challenge to the Second Amended Complaint. Therefore, as ABEM declared its defense of improper venue in its Answer to the Second Amended Complaint, the defense was asserted at the earliest time it was known to be available, thus, the defense was properly included in ABEM's Answer.

  Plaintiffs argue, notwithstanding, that ABEM filed an untimely motion to dismiss for improper venue, as the motion was not filed until July 22, 1994, two months after this court's deadline for the filing of motions to dismiss based on lack of jurisdiction. Plaintiffs' Memorandum of Law at II-26 n. 7. In response, ABEM contends that its motion to dismiss for improper venue was not subject to the deadline set by this court. ABEM's Memorandum in Support of Motion to Dismiss, filed July 22, 1994, at p. 1 n. 1. Although a motion attacking venue may be akin to a jurisdictional challenge thus giving some force to Plaintiff's contention, nevertheless, the court's scheduling order, filed April 29, 1994, on its face does not specifically address venue motions. Moreover, as noted, ABEM did timely assert venue as an affirmative defense in its Answer to the Second Amended Complaint, filed February 28, 1994 at P139. Therefore, as the affirmative defense of improper venue was seasonably raised as required by Fed.R.Civ.P. 12(h), ABEM did not waive the defense, and the court will address its merits.

  ABEM is a not-for-profit corporation organized under the laws of Michigan, with its principal place of business in East Lansing, Michigan. *fn168" ABEM's Motion to Dismiss, filed July 22, 1994, Affidavit of Benson S. Munger, Ph.D., in Support of Motion to Dismiss at P3 ("Munger Affidavit"). ABEM does not own, rent, or lease any real estate located in New York, maintains no offices, places of business, mailing addresses, telephone listings or bank accounts in New York, and has no employees or registered agent in the state. Munger Affidavit at P7. Further, ABEM pays no taxes, carries on no operations, and does not engage in public relations activities in New York. Munger Affidavit at P7.

  ABEM is not a membership organization which provides services to its members, rather, it primarily administers written and oral examinations in the field of emergency medicine and issues its certification which recognizes the special training, knowledge and skill of certain physicians who are able to qualify for this distinction. Munger Affidavit at P3. ABEM has never administered any of its required written or oral examinations in this district, or anywhere else in New York state. Munger Affidavit at P4.

  Plaintiffs argue that ABEM mailed applications to this district and otherwise corresponded with Dr. Daniel and other Plaintiffs by mail and telephone, *fn169" and that Defendant Thiede, a former director of ABEM, and Dr. G. Richard Braen, the president of ABEM as of July of 1994, reside in this district and perform ABEM related activities here. Plaintiffs' Memorandum of Law at II-28 - II-29.

  The test for venue under Clayton Act Section 12 as reiterated in Scophony, supra, and as stated Eastman, supra, "mandates a case by case factual inquiry to determine whether, from a practical business standpoint, some amount of business continuity, more than a few isolated and peripheral contacts with this district exist[]." Bogus v. American Speech & Hearing Association, 389 F. Supp. 327, 329 (E.D.Pa. 1975) (citing Eastern Pre-Cast Corporation v. Giant Portland Cement Company, 311 F. Supp. 896, 897 (E.D.Pa. 1970)). Courts have found that a corporation transacts business within their forum jurisdictions when a substantial business activity is performed within the jurisdiction with continuity of character, regularity, contemporaneous with the service and not looking toward cessation of business. C.C.P. Corporation v. Wynn Oil Company, 354 F. Supp. 1275, 1279 (N.D.Ill. 1973). Substantiality is measured by evaluating the importance of the activity to the primary business purposes of the corporate defendant. See Scophony, supra.

  An examination of the facts surrounding ABEM demonstrates that through its application and certification process, ABEM maintains continuous contacts which amount to business continuity within this district. As ABEM's sole business is to certify physicians throughout the United States, and has its only office in Michigan, it is clear that having certified numerous physicians while they resided in New York, ABEM's communications with physicians in New York were a necessary step in the process of obtaining ABEM's certification, a procedure required as to any candidate regardless of residence. Moreover, 99% of ABEM's revenue consists of the application fees it receives from physicians seeking certification. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 49, p. 20. Thus, ABEM's contacts with this state constituted a substantial transaction of business.

  ABEM, as noted, is an organization whose sole function is to certify physicians in the specialty of emergency medicine. In carrying out its goal of maintaining high standards for the medical profession in this specialty, ABEM entertains the applications for its certification, and appeals of its denials of certification, of physicians who wish to become certified in emergency medicine by ABEM. ABEM performs its essential function by reviewing applications and determining whether or not a candidate is qualified for certification and thus eligible to sit for its examination, the second step in its certification process. See Myers v. American Dental Association, 695 F.2d 716, 726 (3d Cir. 1982), cert. denied, 462 U.S. 1106, 77 L. Ed. 2d 1333, 103 S. Ct. 2453 (1983) (professional associations are commonly devoted to the advancement and enforcement of standards of conduct, thus, common sense suggests that such an organization is transacting business when it engages in activities on a significant scale which further the association's purposes and objectives).

  In Bogus v. American Speech & Hearing Association, 389 F. Supp. 327, 330 (E.D.Pa. 1975), the district court held that neither the low volume of activity conducted in the district as compared with the defendant's total operation, nor the defendant's status as a non-profit, non-stock corporation, maintaining no office or employee in the forum district, was dispositive of whether the defendant transacted business in the district. Bogus, supra, at 330 (citing Levin v. Joint Commission on Accreditation of Hospitals, 122 U.S. App. D.C. 383, 354 F.2d 515, 517 (D.C.Cir. 1965)). Rather, finding that the defendant evaluated academic and clinical service programs in the district, certified 393 of its 18,621 members residing in the district, and conducted workshops on accreditation and supervision in schools in the district, the court held that the association was transacting business in the district for purposes of Section 12. Bogus, supra, at 328, 330 (the workshops, certification, and accreditation are the means by which the defendant attempted to fulfill its goal of maintaining high standards for professionals providing speech and hearing services, and are sufficient to meet the requirement of transacting business in this district under Section 12).

  The fact that the current president of ABEM, and a former director of the corporation presently reside in this district does not demonstrate, contrary to Plaintiffs' content, that these individuals are engaging in any substantial business operations on behalf of ABEM in this district. Although ABEM's current president resides in this district, Dr. Braen did not become the president until July of 1994, six months after the Second Amended Complaint was filed. As contacts which occur after the complaint is filed are not relevant for purposes of determining venue, the fact that ABEM's current president resides in this district is of no significance in this determination. See Greene v. Sha-Na-Na, 637 F. Supp. 591, 600 (D.Conn. 1986) (events occurring after the claim is filed are not relevant for purposes of venue). Further, Plaintiffs have not presented any evidence which indicates that the former director, Dr. Thiede, while in this district, was involved in any business dealings with ABEM. Therefore, these two particular contacts with the district are insufficient to support a finding of venue under Section 12.

  Plaintiffs also assert that this court previously determined, in its Report and Recommandation dated February 25, 1992, that ABEM transacts business in New York as ABEM mailed an application to Dr. Daniel in New York and corresponded with him by mail and telephone in New York with respect to his request for certification. See Daniel, supra, at 919. See also Lanier v. American Board of Endodontics, 843 F.2d 901 (6th Cir.), cert. denied, 488 U.S. 926, 102 L. Ed. 2d 329, 109 S. Ct. 310 (1988) (contacts with plaintiff relating entirely to plaintiff's request for certification as a Diplomate of the American Board of Endodontics held to be the transaction of business for purposes of exercising jurisdiction over the defendant board). Although the issue was not presented to the court at the time of the Report and Recommendation, ABEM would also be subject to personal jurisdiction for transacting business in New York under Section 302(a)(1) of the New York CPLR. The court in Lanier was presented with facts similar to those in the case at bar, and Section 302(a)(1) is nearly identical to the Michigan long-arm statute invoked to sustain jurisdiction over the defendant in that case. *fn170"

  "Transacting business under the New York long-arm statute has been interpreted to require a certain quality, rather than a specific quantity, of contacts with the forum." United States Theatre Corp. v. Gunwyn/Lansburgh, Ltd. Partnership, 825 F. Supp. 594, 595 (S.D.N.Y. 1993). See also Scophony, 333 U.S. at 818; Longines-Wittnauer Watch Co., Inc. v. Barnes & Reinecke, Incorporated, 15 N.Y.2d 443, 209 N.E.2d 68, 74-75, 261 N.Y.S.2d 8 (N.Y. 1965). Whether or not contacts are of the appropriate nature to support venue under Section 12 must be determined by an analysis of the totality of the circumstances. Scophony, supra, at 817.

  In this case, ABEM corresponds with physicians through the mail and by telephone. All New York emergency physicians who are interested in becoming certified must send an application and fee to ABEM. *fn171" As New York is the second most populated state in the country, The World Almanac and Book of Facts: 1995, p. 379 (M. Hoffman ed. 1995); U.S.Bureau of the Census, Statistical Abstract of the United States: 1993 p. 28 (113th edition) Washington, D.C., 1993, it is reasonable to infer that ABEM receives a significant number of applications and a substantial amount in related fees from New York applicants. *fn172" There is no indication that these applications and fees are isolated or sporadic events, rather, the original application and recertification processes result in continuous business contacts with New York, from which ABEM derives substantial revenue.

  In Fontanetta v. American Board of Internal Medicine, 421 F.2d 355 (2d Cir. 1970), relied upon by ABEM, ABEM's Reply Memorandum of Law, filed January 30, 1995, at p. 10, the issue was whether the defendant board, an Iowa non-profit corporation which examines doctors who sought to be certified as specialists in internal medicine, transacted business in New York where the board corresponded by mail with plaintiff in New York regarding his application, plaintiff passed the written examination, a prerequisite to a required oral examination, in New York, but failed the oral examination, administered several years later on two separate occasions in Philadelphia and St. Louis. Fontanetta, supra, at 356-58.

  Fontanetta does not support Defendants' position. A careful reading of Fontanetta shows that the Second Circuit held only that plaintiff's claim arose from events outside of New York state and not from the transaction of business within the state. The court assumed, but did not decide, that had plaintiff's claim arisen from the written examination that was conducted in New York, defendant may well have been found to have transacted business in New York state. Fontanetta, supra, at 358. Thus, Fontanetta is a holding limited to its facts, and does not require acceptance of Defendants' position that ABEM's application procedures relating to Plaintiffs residing in New York cannot constitute venue in New York under Section 12.

  On the other hand, the Supreme Court has made clear that in deciding whether Clayton Act Section 12's venue provision is met, depends upon a careful evaluation of the facts, applying a "practical everyday business or commercial concept of doing or carrying of business." Scophony, supra at 807. Fontanetta does not address the question of whether pre-examination activities of a credentialing board, such as ABEM, which lead to certification can be found to be transaction of business for Section 12 venue purposes.

  For the reasons discussed, under the flexible test for venue based upon transacting business laid down in Eastman Kodak and Scophony, the court finds ABEM's contacts with this forum are sufficient for venue under Clayton Act Section 12.

  2. Council of Emergency Medicine Residency Directors

  CORD is a not-for-profit corporation incorporated in Michigan. CORD's Motion to Dismiss, filed May 12, 1994, Affidavit of Steven Dronen, M.D., at P2 ("Dronen Affidavit"). CORD does not own, lease, or occupy any real or personal property located in New York state, it does not authorize any representatives or agents to act on its behalf in the state, and it has never held any meetings in New York. Dronen Affidavit at P3. Further, CORD does not pay taxes, employ anyone, maintain a mailing address or telephone listing, have a license to do business, or have a registered agent in New York nor does it engage in goodwill or public relations activities or carry on business operations in the state. Dronen Affidavit at P3.

  Plaintiffs assert that at least one of CORD's members is located in this district from which CORD received membership dues, the State University of New York at Buffalo's emergency medicine residency program, and that CORD has sent material to the district, including membership applications, newsletters, monthly president's messages, reports, notices of meetings, educational materials, slides, and other information. *fn173" Plaintiffs' Memorandum of Law at II-25. However, a national membership organization such as CORD does not transact business in this district simply because it has members in the district and mails journals and other materials to those members. Golf City, supra, 555 F.2d at 437-38 (defendant's contacts with the district were too tenuous a connection to constitute transacting business for purposes of Section 12 where it had fifty- five members in the state, it provided applications and forms to state residents for membership, and conducted one five day "business school" in the state); Sherman College of Straight Chiropractic v. American Chiropractic Association, Inc., 534 F. Supp. 438, 442 (N.D.Ga. 1982) ("It is settled law that a national membership organization does not 'transact business' under the Clayton Act in a district simply because it has members in the district and mails journals and other materials to those members"); Academy of Ambulatory Foot Surgery v. American Podiatry Association, 516 F. Supp. 378, 381 (S.D.N.Y. 1981) (the presence of 313 members in New York, and receipt of defendant's literature and publications by those members is not sufficient to constitute transacting business for purposes of Section 12); Bogus, supra, at 330 (a professional association is not transacting business under the Clayton Act in a district merely because some of its members reside in the district; the standard of transacting business requires activity beyond membership and a few sporadic, peripheral, and isolated contacts with the district); Friends of Animals, Inc. v. American Veterinary Medical Association, 310 F. Supp. 620, 624 (S.D.N.Y. 1970) (professional association does not transact business in a district under Section 12 merely because some of its members reside in the district and receive the association's publications there).

  Plaintiffs also allege that CORD acts as a unified voice for the hospital Defendants through which unlawful anticompetitive agreements and acts are committed. Plaintiffs' Memorandum of Law at II-25 - II-26. Continuing this argument, Plaintiffs claim that the co-conspirators' membership and participation in CORD is the means by which the conspiracy is accomplished, and that CORD knew or reasonably should have known that its acts would cause anticompetitive effects in this district. Plaintiffs' Memorandum of Law at II-26. However, the mere allegation of participation by a foreign corporation in a conspiracy within the district does not necessitate the finding that the conspirator was transacting business within the district under the venue provisions of Section 12. Albert Levine, 309 F. Supp. at 460-61. Further, the allegation that CORD should reasonably have known that its acts would have anticompetitive effects in this district is of no significance, as, even if Plaintiffs proved that such a conspiracy existed, this theory is unavailable as a basis for establishing venue. Discussion Section III(a), supra; San Antonio Telephone, 499 F.2d at 351 n. 3; Albert Levine, supra, at 461 (citing Bertha Building Corp., 248 F.2d at 833).

  Thus, as the contacts Plaintiffs have discussed related to CORD do not amount to the transaction of business in this district, venue as to it is not proper under Section 12.

  3. Children's Hospital (San Diego)

  The Children's Hospital (San Diego) is a non-profit pediatric hospital incorporated in California, with its sole place of business in San Diego, California. Children's Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of Emanuel Kauder, M.D. in Support of Motion to Dismiss at P3 ("Kauder Affidavit"). The hospital does not maintain any offices, places of business, employees, or mailing or telephone listings in New York. Kauder Affidavit at P4. The hospital owns no real estate, bank accounts, or other assets in the state, and does not pay taxes, treat patients, carry on operations, or maintain a registered agent in the state. Id. Additionally, the hospital does not engage in any goodwill or public relations activities here. Id.

  The only remaining contact to sustain venue in this district advanced by Plaintiff, is the hospital's national advertising efforts. Plaintiffs' Memorandum of Law at II-9 - II-10. However, this court has determined that advertising on a national level is insufficient as a basis for venue in any particular district. Discussion Section III(a), supra. Accordingly, the action as to this defendant is not within Section 12's venue requirements.

  4. Children's Hospital of Michigan

  Children's Hospital of Michigan is incorporated in Michigan, and has its principal place of business in Detroit with additional places of business for out-patient care in Wayne County and Oakland County, Michigan. Children's Hospital of Michigan's Motion to Dismiss, filed May 19, 1994, Affidavit of Norman Rosenberg, D.O., at P3 ("Rosenberg Affidavit"). The hospital has no office, no telephone listing, no places of business, no real estate, no bank accounts, no mailing address, no employees, and no registered agent in this district. Rosenberg Affidavit at P5. Further, the hospital pays no taxes and treats no patients in New York. Rosenberg Affidavit at P5.

  The remaining contacts Plaintiffs present to demonstrate that Children's Hospital of Michigan is transacting business in this district include mailing correspondence, promotional materials, and applications to residency applicants and medical schools throughout the country, including New York, sending notices to medical school chairs, and advertising in journals and other publications which are distributed nationally. Plaintiffs' Memorandum of Law at II-8 - II-9. However, none of these contacts were directed at New York, rather, they were all performed on a national level, and are incidental to the hospital's primary business purposes. Therefore these contacts do not establish venue for the hospital under Section 12 in this district.

  5. Detroit Receiving Hospital and University Health Center

  Detroit Receiving Hospital and University Health Center is incorporated in Michigan and has its sole place of business in Detroit. Detroit Receiving Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of Edward S. Thomas in Support of Motion to Dismiss at P3 ("Thomas Affidavit"). The hospital does not own real estate, maintain bank accounts, offices, mailing or telephone listings, or have any employees in New York. Thomas Affidavit at P6. Further, the hospital pays no taxes in New York, has no registered agent in the state, and does not engage in any goodwill or public relations activities here. Thomas Affidavit at P6.

  Plaintiffs allege that the hospital transacted business in New York through the activities of Dr. Brooks Bock, professor and chairman of the department of emergency medicine of Wayne State University, which is affiliated with the hospital. Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 5, pp. 9-10. Plaintiffs assert that Dr. Bock's activities in connection with his review of emergency medicine residency programs through the RRC-EM is another contact which supports venue over the hospital in this district. *fn174" Plaintiffs' Memorandum of Law at II-10; Appendix Volume 10, Exhibit 5, pp. 23-25. However, Plaintiffs have not demonstrated that any action by Dr. Bock with respect to RRC-EM was undertaken on behalf of the hospital.

  Plaintiffs also argue that the physician contract group through which Detroit Receiving Hospital staffs its emergency department "may have transacted business in this district with physicians recruited from New York medical schools . . . through advertisements." Plaintiffs' Memorandum of Law at II-10. In support of this argument, Plaintiffs cite the deposition of Dr. Bock, however, in his deposition, Dr. Bock testified that the physicians group only used national advertising, and stated that the physicians group "never advertised in a paper in New York." Plaintiffs' Memorandum of Law, Appendix Volume 10, Exhibit 5, at pp. 52-53. Further, Plaintiffs again advance as a contact the hospital's advertising in national publications. Plaintiffs' Memorandum of Law at II-11. However, advertising in a nationally distributed journal or publication is not sufficient to support a finding of venue in a particular district. Discussion III (a), supra. Therefore, even when viewed cumulatively, these asserted contacts fail to demonstrate any substantial business activities by Detroit Receiving Hospital sufficient to support venue in this district under Section 12.

  6. The Johns Hopkins Hospital, Part of the Johns Hopkins Health System

  Johns Hopkins Hospital maintains an office in New York City called the Development Office, which leases property currently located at 420 Lexington Avenue in New York City. Affidavit of Erwin M. Sekulow, filed March 15, 1995, at PP 2, 9 ("Sekulow Affidavit"). This office has been maintained by Johns Hopkins at various locations in New York City for the last twenty years. Sekulow Affidavit at P3. The Development Office is part of the Johns Hopkins Institutions, which also include the Johns Hopkins Hospital, as part of the Johns Hopkins Health Care Systems Corporation, and the Johns Hopkins University. Sekulow Affidavit at P4. The annual budget of the Development Office is between $ 250,000 and $ 300,000, of which 15% - 20% is paid by the Johns Hopkins Hospital. Sekulow Affidavit at P5. The Development Office employs two individuals, and its purpose is to manage fundraising for the northeast region of the United States, including New York, Massachusetts, Connecticut, New Jersey, and areas within Pennsylvania. Sekulow Affidavit at PP6-7. The Development Office solicits donations from Johns Hopkins Hospital patients who live in the northeast region of the United States, and maintains a bank account in New York used to maintain petty cash and cover office expenses. *fn175" Sekulow Affidavit at PP 8, 10. Thus, Johns Hopkins Hospital continuously carries on substantial activities and has two agents who carry out some of its business activities in New York. As such, Johns Hopkins Hospital, part of John Hopkins Health System, is transacting business sufficient to establish venue pursuant to Section 12 of the Clayton Act.

  7. Loma Linda University Medical Center

  Loma Linda University Medical Center is a non-profit corporation with its place of business in California. Plaintiffs' Memorandum of Law at I-3. The hospital owns no assets, maintains no offices, mailing addresses or telephone listings, treats no patients, has no employees, and does not engage in any goodwill or public relations activities in New York. Loma Linda University Medical Center's Motion to Dismiss, filed May 19, 1994, Affidavit of Larry B. Mellick, M.D. in Support of Motion to Dismiss at P5 ("Mellick Affidavit"). The medical center pays no taxes in New York, and has no registered agent in the state to accept service of process. Mellick Affidavit at P5.

  The remaining contact which the medical center allegedly has with this forum is that it maintains an "800 number" in connection with its physician referral program, which may be accessible throughout the country. Plaintiffs' Memorandum of Law at II-14; Appendix Volume 11, Exhibit 74, at p. 40. Even if this phone number is in fact accessible from this district, Plaintiffs have failed to demonstrate that the medical center's course of conduct with respect to the "800 number" constitutes substantial business operations in this district. See, e.g., King v. Best Western Country Inn, 138 F.R.D. 39, 42 (S.D.N.Y. 1991) (listing a toll-free telephone number in a local directory does not constitute the transaction of business within New York requisite for jurisdiction pursuant to N.Y. CPLR Section 302(a)(1)) (citing Ziperman v. Frontier Hotel of Las Vegas, 50 A.D.2d 581, 374 N.Y.S.2d 697, 700 (App.Div. 2d Dep't. 1975)). Therefore, as the sum of the medical center's contacts with this district fail to show that the hospital is transacting business here, venue is not proper under Section 12 of the Clayton Act.

  8. Lutheran General Hospital

  Lutheran General Hospital is incorporated and maintains its sole place of business in Park Ridge, Illinois. Lutheran General Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of Kevin S. Wardell in Support of Motion to Dismiss at P3 ("Wardell Affidavit"). The hospital does not own any real estate, maintain offices, telephone listings, mailing addresses, bank accounts, or employees in New York. Wardell Affidavit at P5. It pays no taxes, treats no patients, and does not carry on operations or meetings, or engage in any goodwill or public relations activities in New York. Wardell Affidavit at P5. Further, Lutheran has no registered agent to accept service of process in the state. Wardell Affidavit at P5.

  Plaintiffs nevertheless emphasize Lutheran General's "continuing business relationship" with companies that are located in this district, namely the Eastman Kodak Company ("Kodak") and the Xerox Corporation ("Xerox"), both headquartered in Rochester, New York. Plaintiffs' Memorandum of Law at II-15. The administrator for trauma and emergency services indicated that the hospital purchases x-ray film from Kodak, however, she stated that she was not aware of whether the film was purchased through Kodak's headquarters in Rochester, or a separate Kodak office located elsewhere. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 65, at pp. 14-15. Kenneth Rojek, the senior vice-president of operations at the hospital indicated that he did not know the specific amount of money expended on the purchases of equipment and supplies from Kodak, however, he assumed that it was less than $ 100,000. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 60, pp. 11-12. Mr. Rojek also indicated that Lutheran General leased Xerox equipment from a copying equipment supply corporation, not Xerox itself, therefore, the hospital had no direct economic ties to Xerox. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 60, pp. 11-12.

  The law is clear that substantial purchasing activity in a district can be the basis of a determination that, for both venue and jurisdictional purposes, a defendant transacts business there, even if those purchases were not related to the claim for relief. Expoconsul International, Inc. v. A/E Systems, Inc., 711 F. Supp. 730, 733 (S.D.N.Y. 1989) (defendant was transacting business under Section 12 when business amounted to $ 59,714 in one year, and $ 70,500 the next year); Indian Head, Inc. v. Allied Tube & Conduit Corporation, 560 F. Supp. 730, 731-32 (S.D.N.Y. 1983) (purchases of over $ 411,000 in goods and services over a three year period was substantial for purposes of Section 12); McCrory Corp. v. Clother World, Inc., 378 F. Supp. 322, 324 (S.D.N.Y. 1974) (purchases of more than $ 250,000 over a three year period is substantial for jurisdictional purposes); Fashion Two Twenty, Inc. v. Steinberg, 339 F. Supp. 836, 841 (E.D.N.Y. 1971) (purchases of $ 30,000 in materials in New York which defendants sent their own trucks to pick up, with the continuing relationship and sales, was sufficient to constitute transacting business for jurisdictional purposes).

  Despite the fact that direct annual purchases by a defendant of $ 100,000 from Kodak in Rochester would be sufficient for purposes of venue under Section 12, Mr. Rojek stated that he was unsure of the actual amount Lutheran General expends buying x-ray film from Kodak, and that the hospital purchases supplies from companies predominantly located in the midwest which may have offices in New York. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 60, pp. 10-11. Plaintiffs have not submitted evidence or otherwise demonstrating that the hospital engaged in substantial purchasing activities in this district.

  Considering all of the hospital's asserted contacts with New York as a whole, the Plaintiffs have failed to make a sufficient showing of any substantial business operations which would allow this court to find under Section 12 that venue as to Lutheran General is proper in this district.

  9. Medical College of Pennsylvania and Hospital

  The Medical College of Pennsylvania and Hospital is a non-profit medical school and hospital incorporated in Pennsylvania, with its sole place of business in Philadelphia. Medical College of Pennsylvania and Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of David K. Wagner, M.D., in Support of Motion to Dismiss at P2 ("Wagner Affidavit"). The hospital does not own real estate or other assets in New York, maintains no offices, places of business, mailing addresses or telephone listings in the state. Wagner Affidavit at P4. It has no employees, pays no taxes, carries on no business and holds no meetings, has no registered agent, and engages in no goodwill or public relations activities in New York. Wagner Affidavit at P4.

  Plaintiffs assert that the hospital sent recruiting materials to individuals on a SAEM mailing list and medical schools nationally, and disseminated information about its program in the Green Book and other nationally distributed publications. Plaintiffs' Memorandum of Law at II-16. However, as discussed above, neither contacts with the MATCH or FREIDA, nor advertising or recruiting on a national level are sufficient to form the basis for finding venue in this district. Discussion Section III(a), supra.

  In 1993, the Medical College of Pennsylvania and Hospital also sent representatives to a job fair in Buffalo, New York, to recruit nurses. Plaintiffs' Memorandum of Law at II-16. However, in order for a corporation to be transacting business under Section 12, the Plaintiff must demonstrate that the defendant is engaging in substantial business operations. Scophony, 333 U.S. at 807. The medical college's attendance at one job fair in 1993 is an isolated contact which fails to show any business continuity, and therefore will not support a finding of venue in this district. See Eastman, 273 U.S. at 371, 373; Albert Levine, 309 F. Supp. at 460 (citing Stern Fish Co. v. Century Seafoods, Inc., 254 F. Supp. 151, 153 (E.D.Pa. 1966) (some amount of business continuity and certainly more than a few isolated contacts are necessary for venue purposes under Section 12)). Thus, the Medical College of Pennsylvania and Hospital does not transact business in this district to the extent necessary to support venue in this forum under Section 12.

  10. Mercy Catholic Medical Center-Misericordia Division

  Mercy Catholic Medical Center - Misericordia Division is a non-profit Pennsylvania corporation with its principal place of business in Philadelphia, Pennsylvania. Mercy Catholic Medical Center - Misericordia Division's Memorandum of Law in Support of Motion to Dismiss, filed May 12, 1994, at p. 2. The hospital does not maintain any offices or places of business, telephone listings or mailing addresses in New York, and does not pay taxes, treat patients, own property or other assets, carry on operations, engage in goodwill or public relations activities, or have a registered agent in the state. Mercy Catholic Medical Center - Misericordia Division's Memorandum of Law in Support of Motion to Dismiss, filed May 12, 1994, at p. 3.

  In addition to the hospital's asserted contacts with this district through national advertising, the MATCH and FREIDA, Plaintiffs also state that the hospital mailed informational brochures regarding its emergency medicine residency program to potential applicants. Plaintiffs' Memorandum of Law at II-17. However, these informational mailings were sent out by Defendant Medical College of Pennsylvania, *fn176" not Mercy Catholic Medical Center - Misericordia Division, Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 59, at p. 49, and therefore cannot be considered a contact with respect to the medical center. Thus, Plaintiffs have failed to demonstrate any substantial business activity in this district by Mercy Catholic Medical Center - Misericordia Division which constitutes the transaction of business for Section 12 venue purposes.

  11. Mercy Hospital and Medical Center

  Mercy Hospital and Medical Center is incorporated in Illinois and maintains its sole place of business in Chicago. Mercy Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of Barbara E. Townsend in Support of Mercy's Motion, at P3 ("Townsend Affidavit"). The hospital has no office, telephone listing, mailing address, or place of business in New York; further, it is not licensed to do business, and does not have a registered agent in the state. Townsend Affidavit at P5. The hospital holds no assets, and pays no taxes here. Townsend Affidavit at P5. The hospital has no employees, treats no patients, holds no meetings, carries on no operations, nor engages in any goodwill or public relations in New York. Townsend Affidavit at P5.

  Plaintiffs contend that Mercy Hospital and Medical Center also transacted business in New York through the activities of Dr. Gary Strange, *fn177" the emergency medicine residency director of the University of Illinois, with which Mercy Hospital and Medical Center is affiliated, until February 1993. Plaintiffs' Memorandum of Law at II-18. In 1993, Dr. Strange traveled to this district for the RRC-EM to review the University of Rochester's emergency medicine residency program application. Plaintiffs' Memorandum of Law at II-18; Appendix Volume 11, Exhibit 68, pp. 30-33. However, as the Plaintiffs acknowledge that Dr. Strange made this trip to New York as a representative of the RRC-EM, rather than an agent of Mercy Hospital, this contact to New York cannot be attributed to the hospital, and Plaintiffs do not provide any basis to find otherwise. See Discussion Sections II(b)(1)(k) and II(b)(3), supra, explaining that activities of physician members of a professional organization are not imputed to the hospital. Plaintiffs' Memorandum of Law at II-18.

  All of Mercy Hospital's contacts with this district viewed together remain insubstantial and demonstrate the irregularity of Mercy Hospital and Medical Center's dealings in this forum, thus, venue has not been established as to the hospital under Section 12.

  12. Methodist Hospital of Indiana

  Methodist Hospital of Indiana is a not-for-profit hospital which is incorporated in Indiana and maintains its sole place of business in Indianapolis. Methodist Hospital of Indiana's Motion to Dismiss, filed May 19, 1994, Affidavit of Stephen J. Jay in Support of Motion to Dismiss at P3 ("Jay Affidavit"). The hospital does not own any real estate, nor does it maintain any offices, bank accounts, telephone listings or mailing addresses in New York. Jay Affidavit at P6. It pays no taxes in New York, does not treat patients, carry on operations, hold meetings, or engage in any goodwill or public relations activities in the state. Jay Affidavit at P6. Further, the hospital has no license to do business in New York, and does not have a registered agent here. Jay Affidavit at P6.

  Methodist Hospital has participated in a multi-center clinical trial, a medical research project, sponsored by the University of Rochester, located within this district. Plaintiffs' Memorandum of Law at II-19. In order to participate in this multi-center trial, the hospital arranges for and administers patient tests to provide data for the project. Plaintiffs' Memorandum of Law, Appendix Volume 12, Exhibit 13, Supplementary Interrogatory Response No. 21. The hospital's participation, since 1992, in this clinical trial does not demonstrate that it is transacting business in this district. At best, the activity is incidental to the hospital's main business purpose, and nothing in the record supports the contrary. Further, although members of the Methodist Hospital of Indiana's medical staff attended a professional education meeting in Buffalo in October of 1991, Plaintiffs' Memorandum of Law at II-19, this contact with the district is too remote in time to be of significance, and fails to demonstrate, even with the remaining contacts, that the hospital was engaged in any substantial business operations in this district.

  13. Oregon Health Sciences University Hospital

  Oregon Health Sciences University Hospital is a public benefit corporation incorporated by legislation in the state of Oregon. 1995 Or. Laws ch. 162 §§ 1(2) (a public corporation is an entity created by the state to carry out public purposes); Id. § 2 (Oregon Health Sciences University is established as a public corporation). Oregon Health Sciences University has no real estate or other assets in this state, it maintains no offices, places of business, telephone listings, or mailing addresses, engages in no goodwill or public relations activities, and pays no taxes in New York. Oregon Health Sciences University Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of John C. Moorhead, M.D. in Support of Motion to Dismiss at P7 ("Moorhead Affidavit"). Further, the university hospital treats no patients, has no employees, does not carry on operations or hold meetings, and has no registered agent in the state. Moorhead Affidavit at P7.

  Plaintiffs have provided no additional facts upon which to find venue as to the university hospital pursuant to Section 12 of the Clayton Act and those facts previously asserted are, as discussed in Section III(a), supra, insufficient. Plaintiffs' Memorandum of Law at II-1 - II-29.

  14. St. Anthony Hospital

  St. Anthony Hospital is incorporated in Colorado and its sole place of business is located in Denver. The hospital owns no real estate or other assets, does not maintain any offices, places of business, or telephone listings in New York. St. Anthony Hospital's Motion to Dismiss, filed May 19, 1994, Affidavit of Peter Donald in Support of Motion to Dismiss at P4 ("Donald Affidavit"). St. Anthony Hospital pays no taxes, has no employees, treats no patients, has no meetings and carries on no operations, has no registered agent, and does not engage in any goodwill or public relations activities in this state. Donald Affidavit at P4.

  Plaintiffs assert that St. Anthony Hospital places advertisements in several national publications, as well as advertising for nursing positions in the Buffalo News, the only local general circulation newspaper in Buffalo, the largest city in this district, on July 25, 1993. Plaintiffs' Memorandum of Law at II-23; Appendix Volume 5, Exhibit 5, Doc. No. LL10 58; Appendix Volume 11, Exhibit 61, pp. 24-25, 32; Appendix Volume 13, Exhibit 17, Responses to Interrogatories 8 and 13. However, for the hospital to transact business under Section 12, it must engage in substantial business operations, rather than isolated or sporadic contacts. Scophony, supra, at 807, 817. The placement of a single advertisement in the local newspaper is far from what is required in order to demonstrate that a defendant is transacting business for purposes of Section 12. Compare C.C.P. Corp. v. Wynn Oil Co., 354 F. Supp. 1275, 1279 (N.D.Ill. 1973) (corporation which spent $ 26,000 on advertising within the district during a one and one-half year period was transacting business as it conducted additional business activities in the state); Fulton Company, Inc. v. Beaird-Poulan, Inc., 54 F.R.D. 604, 608 (N.D.Miss. 1972) (corporation was doing business where defendant regularly advertised in publications circulated within the district and advertised jointly with other dealers in the district, as well as visiting the district to assist with promotion and sales activities); Chemical Specialties Sales Corp. v. Basic Incorporated, 296 F. Supp. 1106, 1108 (D.Conn. 1968) (where defendant regularly advertised in trade journals in the state, sold and solicited the sale of its products in the district, and purchased materials from the district, continuous and substantial business activities were demonstrated in the district to support a finding of transacting business under Section 12); Clapper v. Original Tractor Cab Co., Inc., 117 F. Supp. 247, 249-50 (S.D.Ind. 1953) (foreign corporation engaged in continuous course of business in district by placing numerous advertisements in local papers, visiting a distributor within the district twice a year, conducting business with the distributor for five years, and selling over $ 100,000 in products in the district each year).

  As Plaintiffs have failed to demonstrate that St. Anthony Hospital is transacting business as required under Section 12, venue is not proper in this district.

  15. University Medical Center (Tucson)

  The University Medical Center is a not-for-profit hospital incorporated in Arizona which maintains its sole place of business in Tucson, Arizona. University Medical Center's Motion to Dismiss, filed May 19, 1994, Affidavit of James W. Richardson in Support of University Medical Center's Motion, at P3 ("Richardson Affidavit"). The medical center does not maintain any offices, telephone listings, bank accounts, mailing addresses, or places of business in New York, is not licensed to do business in New York, and has no registered agent in the state. Richardson Affidavit at P6. Further, the hospital owns no real estate, has no employees, does not carry on operations, hold meetings, or treat patients in New York. Id. Nor does the medical center pay taxes in New York, or engage in any goodwill or public relations activities in the state. Id.

  The medical center maintains an affiliation with D'Youville and Daemen Colleges, both located in this district, in the colleges' physical and occupational therapy programs. Plaintiffs' Memorandum of Law at II-24. In connection with their training requirements in these professional programs, students from the colleges perform clinical rotations at the hospital. Id. However, for purposes of determining whether venue is proper under Section 12, it is important to note that only one student comes to the medical center at a time, and that a student could be from one of several colleges, which, at present, include two from this district. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 52, pp. 15-18. The court finds that under the Eastman standard these contacts are incidental to the medical center's business of providing health services and therefore are too insubstantial to sustain venue. Moreover, permitting such clinical rotations is not central to the center's core business of providing general hospital services. Thus, this contact could not establish the substantial business operations required upon which to predicate venue as to the medical center in this district pursuant to Section 12.

  The University Medical Center also sent representatives to job fairs for each of the last four years to recruit physical and occupational therapists from several colleges located in this district. Plaintiffs' Memorandum of Law at II-24. However, four trips to New York over four years are not sufficient to demonstrate that the center is transacting any substantial business in New York.

  Last, Plaintiffs argue that the medical center has used direct mailings to recruit employees. Plaintiffs' Memorandum of Law at II-25. However, the mailings were sent based on a national list, and the market in western New York was not the target. Plaintiffs' Memorandum of Law, Appendix Volume 11, Exhibit 52, pp. 19-22. *fn178" This activity, therefore, is casual and remote.

  Thus, although the medical center does have some contacts with this district, they cannot be viewed individually or cumulatively as establishing venue here as the center's course of conduct with respect to New York at the time the Second Amended Complaint was served does not demonstrate that the corporation was involved in any substantial business activity in this district.

  b. Venue under the General Venue Provisions

  1. Section 1391

  The general federal venue statute, 28 U.S.C. § 1391(b), permits an action not based on diversity of citizenship to be brought in

  

(1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

  28 U.S.C. § 1391(b) (1990). *fn179" For purposes of venue, a defendant which is a corporation is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. *fn180" 28 U.S.C. § 1391(c) (1988). Section 1391(c) is intended to determine the residence of a corporation for purposes of applying Section 1391(b). Sterling Television Presentations, Inc. v. Shintron Company, Inc., 454 F. Supp. 183, 190 (S.D.N.Y. 1978) (Section 1391(c) supplements Sections 1391(a) and (b), as Section 1391(c) allows the determination of whether a defendant resides in a district for purposes of Sections 1391(a) and (b)); Stephenson v. Jordan Volkswagen, Inc., 428 F. Supp. 195, 198 (W.D.N.C. 1977) (the purpose of Section 1391(c) is to ascertain the residence of a corporation in order to apply Section 1391(b)).

  Section 1391(c) states that a corporate defendant "shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c) (1990). Thus, for a defendant to be subject to Section 1391(c), it must first be shown to be a corporation. The definition of a corporation under Section 1391(c) is broader than that contained in Section 12 of the Clayton Act. *fn181" See Kingsepp, 763 F. Supp. at 28.

  Eighteen of the moving Defendants are domestic corporations, including ABEM, CORD, Children's Hospital (San Diego), Children's Hospital of Michigan, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center - Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Oregon Health Sciences University Hospital, Riverside Methodist Hospitals, Saint Francis Hospital, St. Anthony Hospital and University Medical Center (Tucson). As these Defendants are corporations for purposes of Section 1391(c) and were subject to personal jurisdiction under Section 12 at the time this action was commenced, they are deemed to reside in this district pursuant to Section 1391(c). Kingsepp, supra, at 28. Section 1391(c) also provides that if a state has more than one judicial district, and a corporation is subject to personal jurisdiction in the district at the time the action was commenced, the corporation "shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State." 28 U.S.C. § 1391(c) (1990). In this case, the court has found, under the nationwide contacts analysis authorized by Clayton Act Section 12, that each of the defendant corporations has sufficient contacts with the United States to be subjected to personal jurisdiction in any federal judicial district. See Discussion Section II(a), supra. Therefore, as each of these defendants have sufficient contacts with this district for personal jurisdiction purposes and have been properly served pursuant to Section 12, they also have sufficient contacts with this district for purposes of venue. See Kingsepp, supra, at 28. Each of these Defendants as corporations are thus deemed to reside in this district for purposes of Section 1391(c).

  Further, if the district court accepts this court's Report and Recommendation, see Discussion Sections I and II, supra, those Defendants which are not domestic corporations including Ohio State University Hospital, Tri-City Medical Center, the University of California Medical Centers at Los Angeles, Irvine, and San Diego, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center, would all be dismissed as parties on grounds of Eleventh Amendment immunity, the state action doctrine, Local Government Antitrust Act immunity (as to money damages claimed against Lincoln Medical and Mental Health Center and Tri-City Medical Center), or lack of personal jurisdiction under state long-arm law, and so would be irrelevant to any decision under Section 1391(b)(1) in determining whether all Defendants reside in the same state. 28 U.S.C. § 1391(b)(1) (1990). Thus, as each of the remaining Defendants, as corporations, would be deemed to reside in this district pursuant to Section 1391(c), venue would be proper under Section 1391(b)(1), which provides for venue in a judicial district where any defendant resides, if all defendants reside in the same state. 28 U.S.C. § 1391(b)(1) (1990).

  Alternatively, if any of the governmentally sponsored or created Defendants -- Ohio State University Hospital, Oregon Health Sciences University Hospital, *fn182" Tri-City Medical Center, the University of California Medical Centers at Los Angeles, Irvine, or San Diego, University Hospital at the University of New Mexico School of Medicine, or the University of Massachusetts Medical Center, are not dismissed as recommended, this court must determine whether venue is proper in this district. *fn183"

  For purposes of Section 1391(c), a corporation has been held to include a public trust, Kingsepp, supra, at 28, a voluntary association, see Denver and Rio Grande Western Railroad Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 562, 18 L. Ed. 2d 954, 87 S. Ct. 1746 (1967), a partnership, Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1220 (5th Cir. 1969), and a labor union, Cable News Network, Inc. v. American Broadcasting Co., 528 F. Supp. 365 (N.D.Ga. 1981). Regardless of whether the University of California Medical Centers, University Hospital at the University of New Mexico School of Medicine, or University of Massachusetts Medical Center qualify as corporations under Section 1391(c)'s broad definition, proper venue over these Defendants cannot be based on this section, as these Defendants are not subject to personal jurisdiction in New York. See Discussion Section II, supra. Therefore, if the District Judge accepts this court's recommendations regarding the Eleventh Amendment defenses, the state action doctrine, the Local Government Antitrust Act, or personal jurisdiction defenses, venue will be proper in this district as the remaining Defendants, ABEM, CORD, Children's Hospital (San Diego), Children's Hospital of Michigan, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center-Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital and the University Medical Center (Tucson, Arizona), will all reside in this district for purposes of Section 1391(b)(1).

  However, if any of the following Defendants, the University of California Medical Centers at Los Angeles, Irvine and San Diego, the University Hospital at the University of New Mexico School of Medicine, or University of Massachusetts Medical Center, remain as parties to this action, venue is not proper in this district under Section 1391(b)(1), as not all Defendants can be found to reside, pursuant to 28 U.S.C. § 1391(c), in the same state. 28 U.S.C. § 1391(b)(1) (1990); Lightfoot v. Union Carbide Corp., 1994 U.S. Dist. LEXIS 6191, *30 (S.D.N.Y. 1994) (venue inappropriate under Section 1391(b)(1) where one defendant was not a resident of New York when the action was commenced).

  Plaintiffs also maintain that venue is proper in this district pursuant to Section 1391(b)(2), which provides that an action may be brought in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. Plaintiffs' Memorandum of Law at II-32 - II-38. In demonstrating that a substantial part of the events took place in this district, Plaintiffs assert that ABEM denied the applications and appeals of at least six Plaintiffs residing in this district, deterred four others from even applying to take the ABEM examination, and that the anticompetitive effects of the alleged conspiracy caused economic harm in this district. Plaintiffs' Memorandum of Law at II-34 - II-35.

  ABEM's denial of the applications and appeals of Dr. Daniel and five other individual Plaintiffs and the official communication of this action to Plaintiffs in New York is sufficient to constitute a substantial part of the events giving rise to Plaintiffs' claims. *fn184" See Monument Buildings of Greater Kansas City, Inc. v. American Cemetery Assoc'n., 891 F.2d 1473 (10th Cir. 1989) (court erred in dismissing Missouri defendants for lack of venue in antitrust case alleging conspiracy to foreclose competition in market for grave marker sales and installations in greater Kansas City area since claim did not arise from individual cemetery's sale of graves but from alleged illegal conduct's adverse impact on consumer welfare within relevant market which covered both Kansas and Missouri); Grappone, Inc. v. Subaru of America, Inc., 403 F. Supp. 123, 133 (D.N.H. 1975) (in an action for antitrust violations against a nonresident defendant, the "place of injury" test should be given great weight and consideration by court because failure to do so would enable a foreign corporation to make policy decisions in a distant state which violate antitrust laws and would force the aggrieved part to travel to the wrongdoer's home district to litigate); Albert Levine Assoc., 314 F. Supp. at 171 (venue is proper under Section 1391(b) in action alleging violations of antitrust laws where plaintiff suffered injury to his business); See also, Woodke v. Dahn, 1995 WL 697327, *2 (8th Cir. 1995) (although all trailers involved in the Lanham Act claim were manufactured in the district and the dealership agreement was executed there, no substantial event occurred in the district as there is no claim that trademarks were altered in the district); Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 (2d Cir. 1992) (court concluded that the receipt of a collection notice within the district was a substantial part of the events giving rise to a claim under the Fair Debt Collection Practices Act); Gaines, Emhof, Metzler & Kriner v. Nisberg, 843 F. Supp. 851, 854 (W.D.N.Y. 1994) ("the phrase 'events or omissions giving rise to the claim' in 28 U.S.C. § 1391(b)(2) suggests a focus on the actions of the defendant, not on those of the plaintiff"); Gruntal & Co., Inc. v. Kauachi, 1993 U.S. Dist. LEXIS 1216, *5, 1993 WL 33345, at *2 (S.D.N.Y. 1993) (venue proper in diversity common law fraud action based on telephone calls during which allegedly fraudulent representations were made, where one party to the calls was within the district during calls).

  As there are 176 Plaintiffs located in thirty-four states and the District of Columbia, and thirty-one Defendants, located in fourteen states, oral and written communications by telephone and mail by ABEM to six Plaintiffs in New York regarding their applications for ABEM certification constitutes a substantial event giving rise to the cause of action. However, the fact that four other Plaintiffs failed to apply to ABEM for certification because they believed it to be futile, Plaintiffs' Memorandum of Law at II-34 n. 10, is not a contact for venue purposes, as no action was taken by any of the Defendants in New York with respect to these Plaintiffs. Moreover, the allegedly illegal acts include ABEM's closure of the practice track, and the later-added requirement of ABEM certification or eligibility to practice emergency medicine by several of the Defendants. Even if such decisions may be considered an action for the purposes of Section 1391(b)(2), none of these alleged acts took place in this district.

  Plaintiffs also argue that the current president of ABEM, Dr. G. Richard Braen, resides and practices medicine in this district, and Dr. Henry A. Thiede, a former member of the board of directors of ABEM is also a resident of the district. Plaintiffs' Memorandum of Law at II-35. However, the Plaintiffs have not identified any specific activities by either Dr. Braen or Dr. Thiede giving rise to their claims. Moreover, Dr. Braen did not become the president of ABEM until 1994, after the suit was filed, therefore, none of his actions could have contributed to the acts of which Plaintiffs complain. See Greene, 637 F. Supp. at 600 (events occurring after the claim is filed are not relevant for purposes of venue). Fontanetta, supra, is not to the contrary as in that case the claim arose based on the action of the defendant in relation to plaintiff's oral examinations conducted outside of New York. Here, ABEM's action and Plaintiffs' claims was based upon the application sent by ABEM into New York and returned with a fee from within New York, and the relevant decision communicated to Plaintiff in New York. *fn185"

  Thus, as a substantial part of the events with respect to ABEM and Dr. Daniel, as well as five other Plaintiffs, occurred in New York, venue over ABEM is proper in this district.

  Finally, in support of finding venue under Section 1391(b)(2), Plaintiffs assert the activities of CORD and the various hospital Defendants in this district, including their participation in the MATCH and FREIDA, and other aspects of the selection process by which graduate medical students are offered residency positions. Plaintiffs' Memorandum of Law at II-36. However, as discussed in Sections II and III, supra, finding that no hospital Defendant challenging venue, or CORD, took any action in New York with respect to Plaintiffs' claims, these activities have no material connection to this district, and cannot support a finding of venue, as these contacts are not substantial events giving rise to Plaintiffs' conspiracy claims.

  Although the most substantial events forming the basis for a cause of action need not take place in a district for there to be proper venue, Bates, supra, at 867, the hospital Defendants' and CORD's activities relied upon by the Plaintiffs, viewed alone or collectively, are not sufficient to constitute substantial events giving rise to the Plaintiffs' claims. Therefore, venue over the hospital Defendants and CORD is not proper in this district pursuant to Section 1391(b)(2).

  2. Section 1406

  ABEM and the University of California Medical Centers at Los Angeles, Irvine, and San Diego maintain that this action should be dismissed pursuant to 28 U.S.C. § 1406(a) (1988). *fn186" ABEM's Motion to Dismiss, filed July 22, 1994; University of California Medical Centers' Motions to Dismiss, filed May 19, 1994. Section 1406(a) provides that

  

The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

  28 U.S.C. § 1406(a) (1988). ABEM and the University of California Medical Centers at Los Angeles, Irvine, and San Diego maintain that this district has no relationship to the events underlying this suit, and, therefore, the suit must be dismissed. University of California (Los Angeles) Medical Center's Memorandum of Law in Support of Motion to Dismiss, filed May 19, 1994, at p. 32; University of California (Irvine) Medical Center's Memorandum of Law in Support of Motion to Dismiss, filed May 19, 1994, at p. 31; University of California (San Diego) Medical Center's Memorandum of Law in Support of Motion to Dismiss, filed May 19, 1994, at p. 32; ABEM's Memorandum of Law in Support of Motion to Dismiss, filed July 22, 1994, at p. 5.

  Plaintiffs respond that the court must consider whether judicial economy will be served if any of the defendants were dismissed for improper venue. Plaintiffs' Memorandum of Law at II-38. In demonstrating that venue should be proper in this district, Plaintiffs assert that 28 U.S.C. § 1407 provides that multidistrict litigation of common questions of law and fact is contrary to the concept of judicial economy and should be avoided in complex litigation. *fn187" Plaintiffs' Memorandum of Law at II-38 - II-39. Further, Plaintiffs contend that, as this action has been pending in this district for over four years, and the court is intimately familiar with the claims presented in this case, that it should remain in this district rather than being dismissed for lack of improper venue. Plaintiffs' Memorandum of Law at II-39.

  As discussed, Discussion Section III, supra, this court finds that ABEM is subject to personal jurisdiction and venue in this district, therefore, ABEM's motion to dismiss pursuant to 28 U.S.C. § 1406(a) should be denied. However, neither personal jurisdiction nor proper venue has been established as to the Defendant University of California medical centers, therefore, if these parties are not dismissed on grounds of immunity or lack of personal jurisdiction, their motions to dismiss pursuant to 28 U.S.C. § 1406(a) must be examined.

  It is in the sound discretion of the district court to determine whether dismissal or transfer of a case is appropriate. Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). In this case, there is no statutory basis for laying venue in this district as to the University of California hospital Defendants. See 28 U.S.C. § 1391(b) (1990). Further, personal jurisdiction over the University of California medical centers does not exist in this district. See Discussion Section II, supra. Although this court is familiar with the case, and it would serve judicial economy interests if the case against the Defendant University of California medical centers, assuming they remained also as parties, were to continue in this district, the Plaintiffs have failed to demonstrate that venue is proper as to these Defendants, and the case against each of the University of California medical centers at Los Angeles, Irvine and San Diego, should be dismissed.

  IV. Service of Process

  An action is commenced upon the filing of a complaint with the clerk of the court who forthwith issues a summons to the plaintiff or the plaintiff's counsel who is responsible for service upon the defendant. Fed.R.Civ.P. 4(a) & (b). Fed.R.Civ.P. 4(h) sets forth the manner upon which service may be made on a corporation. Further, pursuant to Fed.R.Civ.P. 4(m), if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, and the party on whose behalf such service was required cannot show good cause why such service was not made within the 120 day period, the action shall be dismissed, without prejudice.

  Both CORD and Mercy Catholic Medical Center - Misericordia Division contend that they were not served with the Second Amended Complaint until February or March of 1994, well beyond the 120 days from the date that this action was originally removed to federal court. CORD Memorandum of Law in Support of Motion to Dismiss, filed May 12, 1994, at p. 5; Mercy Catholic Medical Center - Misericordia Division Memorandum of Law in Support of Motion to Dismiss, filed May 12, 1994, at p. 5. However, as the Second Amended Complaint was filed on January 13, 1994, Plaintiffs had until May 12, 1994 to serve each of these Defendants. Therefore, as CORD's waiver of service was returned executed on February 22, 1994, and Mercy Catholic Medical Center - Misericordia Division's acknowledgement of service was filed on March 30, 1994, both well before the 120 day time limitation expired, CORD and Mercy Catholic Medical Center's motions to dismiss for insufficient service of process should be denied.

  Further, CORD filed an answer to the Second Amended Complaint on March 22, 1994. In the answer, CORD asserted the defenses of improper venue and lack of personal jurisdiction, CORD Answer, filed March 22, 1994, PP136-141, but did not assert the defense of insufficiency of service of process. These defenses, although related, are not identical. See Santos v. State Farm Fire and Casualty Co., 902 F.2d 1092, 1095 (2d Cir. 1990). "Questions of personal jurisdiction go to 'whether the controversy or defendant has sufficient contact with the forum to give the court the right to exercise judicial power over the defendant,' (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1351, at 560 (1969)) whereas questions of sufficiency of service concern 'the manner in which the service has been made and not . . . the court's power to adjudicate defendant's rights and liabilities.'" Id. at § 1353, at 578-79. In Santos, supra, the court found that an answer which only raised the affirmative defense of lack of personal jurisdiction did not adequately set forth an affirmative defense for insufficiency of service of process, and that such defense had been waived. Santos, supra, at 1095-96. See also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 n.2 (2d Cir. 1988) (the failure to plead an affirmative defense results in the waiver of that defense); Broadcast Music, Inc. v. Marger, Inc., No. 93 Civ. 710A (W.D.N.Y. Oct. 12, 1994) (defendants asserted lack of personal jurisdiction, but failed to assert insufficient service of process, thereby waiving the defense); Federal Home Loan Mortgage Corporation v. Dutch Lane Associates, 775 F. Supp. 133, 137 (S.D.N.Y. 1991) (where defendants filed an answer, raising as a defense lack of personal jurisdiction, and then participated in two pretrial conferences, and settlement negotiations over a seven month period, court held that the raising of a "lack of personal jurisdiction" defense did not preserve an insufficiency of service of process defense, and that such defense had been waived).

  Further, the later filing of CORD's motion to dismiss, directed toward the Second Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(5), was untimely. CORD was entitled to raise its service of process defense by motion, however, Rule 12(h) requires that any such motion be made before any responsive pleading is filed. Fed.R.Civ.P. 12(h). If the defense of insufficiency of service of process is not included in either a responsive pleading, or in an appropriate motion, the defense is waived. Fed.R.Civ.P. 12(h)(1). See Caribe Carriers, Ltd. v. C.E. Heath & Co., 784 F. Supp. 1119, 1124 (S.D.N.Y. 1992).

  CORD waived its right to make a motion to dismiss based on improper service by its failure to raise insufficiency of service of process as an affirmative defense in its Answer, filed March 22, 1994. Accordingly, CORD's motion to dismiss based on insufficiency of service of process should denied.

  CONCLUSION

  Based on the foregoing, Defendants Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and the University of Massachusetts Medical Center should be dismissed on grounds of Eleventh Amendment immunity. Alternatively, Defendants Lincoln Medical and Mental Health Center, Ohio State University Hospital, Oregon Health Sciences University Hospital, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital of the State University of New York at Stony Brook, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center, should be dismissed from the suit as they are exempt from federal antitrust laws under the state action doctrine. The action against Lincoln medical and Mental Health Center and Tri-City Medical Center should also be dismissed insofar as money damages are requested, under the Local Government Antitrust Act.

  This court finds that under Section 12 of the Clayton Act, each of the Defendants which are domestic corporations are subject to personal jurisdiction in this district, namely, CORD, Children's Hospital (San Diego), Children's Hospital of Michigan, Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medioal Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholio Medical Center-Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Oregon Health Sciences University Hospital, *fn188" Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson). Therefore, as to these Defendants the motions to dismiss for lack of personal jurisdiction should be denied.

  Alternatively, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, is subject to personal jurisdiction, pursuant to Section 301 of the New York Civil Practice Law and Rules, as the court finds it is doing or soliciting business in New York. However, Plaintiffs failed to demonstrate that the other Defendants which have moved to dismiss for lack of personal jurisdiction are soliciting business pursuant to Section 301, or that they are subject to personal jurisdiction, pursuant to New York's long-arm statute, N.Y. CPLR Section 302(a)(1), (2) or (3), for transacting business, committing a tortious act within the state, or committing a tortious act outside the state causing injury within the state.

  Therefore, regardless of the District Judge's determination of the asserted immunity claims the motions to dismiss for lack of personal jurisdiction as to Ohio State University Hospital, Tri-City Medical Center, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and University of Massachusetts Medical Center, should be granted as the court finds personal jurisdiction does not exist over these Defendants.

  The court also finds venue as to ABEM, CORD and the hospital Defendants which are domestic corporation, exists pursuant to Section 12 of the Clayton Act, however, those Defendants which are not domestic corporations and, if remaining as parties, should not be subject to venue under this section. Should the District Court accept the Report and Recommendation regarding Eleventh Amendment immunity, the state action doctrine, the Local Government Antitrust Act, or lack of personal jurisdiction, Defendants Tri-City Medical Center, University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center, University of California (San Diego) Medical Center, University Hospital at the University of New Mexico School of Medicine, and the University of Massachusetts Medical Center will have been dismissed from the action as parties, leaving the remaining Defendants - ABEM, CORD, Children's Hospital of Michigan, Children's Hospital (San Diego), Detroit Receiving Hospital and University Health Center, Forsyth Memorial Hospital, Johns Hopkins Hospital, Part of the Johns Hopkins Health System, Kettering Medical Center, Loma Linda University Medical Center, Lutheran General Hospital, Medical College of Pennsylvania and Hospital, Mercy Catholic Medical Center - Misericordia Division, Mercy Hospital and Medical Center, Methodist Hospital of Indiana, Riverside Methodist Hospitals, Saint Francis Medical Center, St. Anthony Hospital, and University Medical Center (Tucson) - subject to venue in this district pursuant to 18 U.S.C. § 1391.

  However, the motions to dismiss pursuant to 28 U.S.C. § 1406(a) should, nevertheless, be granted with respect to University of California (Los Angeles) Medical Center, University of California (Irvine) Medical Center and University of California (San Diego) Medical Center, but denied as to ABEM. CORD's and Mercy Catholic Medical Center-Misericordia Division's motions to dismiss for improper service of process should also be denied.

  Respectfully submitted,

  LESLIE G. FOSCHIO

  UNITED STATES MAGISTRATE JUDGE

  Dated: January 16th, 1996

  Buffalo, New York


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