EFTA Document EFTA01299150

NAME SEARCHED: Harry Beller PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches on your subject name(s) in the required databases and have attached the search results under the correct heading below. Significant negative media results may require escalation to senior business. Legal and Compliance management. Also, all accounts involving PEPs must be escalated. Search: Result: Click here for results: Reviewer Comments (as necessary): RDC 0 No Hit MI Not Required I RDC Results No RDC alert (Please sec attached) 0 Ifit PCR ta No Hit • Not Required II, PCR Results No KR alert (Please sec attached) M Hit MS la Yes • No III. NCRatiVC Media Result Found(pl ease see attached) Not Required IV. Non-Negative Media No Information found V. Other Language Media Not Required D&B VI. 11 11 Not Required Results? • Yes 0 No 0 Not Required Smartlinx Retains? 0 Yes 0 No ID Not Required VU. Smartlinx Result Found(please see attached) Court Cases , 4 Review biLegal May VIII. Court Cases Result Found(please see attached) be Required 0 No Results El Search not required Prepared by: Date: 10/02/2013 Research Analyst Instructions: 1. Review and confirm that all results are returned for your client. 2. Please note that you are still required to perform any Martindale-Hubbell search (if applicable) on each search subject. We hat e attached the eh link below for your convenience:Nlartindale-Hubbellhttp://www.martindale.com/spagartindale/home.xml 3. As needed, provide comment for any negative results. 4. If applicable, please obtain clearance from Compliance for all alerts. 5. Save any changes you make to this document and attach file to your KYC. Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents. For internal use only S0NY_GM_00064857 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) CONFIDENTIAL DE-SDNY-00271382 EFTA_00175358 EFTA01299150 OFAC RESULTS RDC: No Match Found of Birth: PC:R: Harry Beller Country:United States Date Harry Beller NCA customised Auto-Closed No-Hit 02/10/2013 BIS RESULTS Negative Media: Space Daily June 25, 2010 Friday Enzyme Trio For Biosynthesis Of Hydrocarbon Fuels BYLINE: Staff Writers LENGTH: 766 words DATELINE: Berkeley CA (SPX) Jun 25, 2010, 2010 If concerns for global climate change and ever-increasing costs weren't enough, the disastrous Gulf oil spill makes an even more compelling case for the development of transportation fuels that are renewable, can be produced in a sustainable fashion, and do not put the environment at risk. Liquid fuels derived from plant biomass have the potential to be used as direct replacements for gasoline, diesel and jet fuels if cost-effective means of commercial production can be found. Researchers with the U.S. Department of Energy (DOE)'s Joint BioEnergy Institute (JBEI) have identified a trio of bacterial enzymes that can catalyze key steps in the conversion of plant sugars into hydrocarbon compounds for the production of green transportation fuels. Harry Beller, an environmental microbiologist who directs the Biofuels Pathways department for JBEI's Fuels Synthesis Division, led a study in which a three-gene cluster from the bacterium Micrococcus luteus was introduced into the bacterium Escherichia coli. For internal use only SDNY_GM_00064858 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027683 EFTA_OOI 75359 EFTA01299151 Page 2 Enzyme Trio For Biosynthesis Of Hydrocarbon Fuels Space Daily June 25, 2010 Friday The enzymes produced by this trio of genes enabled the E. coli to synthesize from glucose long-chain alkene hydrocarbons. These long-chain alkenes can then be reduced in size - a process called "cracking" - to obtain shorter hydrocarbons that are compatible with today's engines and favored for the production of advanced lignocellulosic biofuels. "In order to engineer microorganisms to make biofuels efficiently, we need to know the applicable gene sequences and specific metabolic steps involved in the biosynthesis pathway," Beller says. 'We have now identified three genes encoding enzymes that are essential for the bacterial synthesis of alkenes. With this information we were able to convert an E. coli strain that normally cannot make long-chain alkenes into an alkene producer." Working with Beller on this study were Ee-Been Goh and Jay Keasling. The three were the co-authors of a paper that appeared earlier this year in the journal Applied and Environmental Microbiology, titled "Genes Involved in Long-Chain Alkene Biosynthesis in Micrococcus luteus." It has long been known that certain types of bacteria are able to synthesize aliphatic hydrocarbons, which makes them promising sources of the enzymes needed to convert lignocellulose into advanced biofuels. However, until recently, little was known about the bacterial biosynthesis of non-isoprenoid hydrocarbons beyond a hypothesis that fatty acids are precursors. JBEI researchers in the Fuels Synthesis Division, which is headed by co-author Keasling, are using the tools of synthetic biology, and mathematical models of metabolism and gene regulation to engineer new microbes that can quickly and efficiently produce advanced biofuel molecules. E.coli is one of the model organisms being used in this effort because it is a well-studied microbe that is exceptionally amenable to genetic manipulation. "We chose to work with M. luteus because a close bacterial relative was well-documented to synthesize alkenes and because a draft genome sequence of M. luteus was available," Beller says. "The first thing we did was to confirm that M. luteus also produces alkenes." Beller and his colleagues worked from a hypothesis that known enzymes capable of catalyzing both decarboxylation and condensation should be good models for the kind of enzymes that might catalyze alkene synthesis from fatty acids. Using condensing enzymes as models, the scientists identified several candidate genes in M. luteus, including Mlut_13230. When expressed in E. coli together with the two adjacent genes - Mlut_13240 and 13250 - this trio of enzymes catalyzed the synthesis of alkenes from glucose. Observations were made both in vivo and in vitro. 'This group of enzymes can be used to make aliphatic hydrocarbons in an appropriate microbial host but the resulting alkenes are too long to be used directly as liquid fuels," Beller says. "However, these long-chain alkenes can be cracked - a technique routinely used in oil refineries - to create hydrocarbons of an appropriate length for diesel fuel." The next step Beller says is to learn more about how these three enzymes work, particularly Mlut_13230 (also called OleA), which catalyzes the key step in the alkene biosynthesis pathway - the condensation of fatty acids. For internal use only SDNY_GM_00064859 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027684 EFTA_00I 75360 EFTA01299152 Page 3 Enzyme Trio For Biosynthesis Of Hydrocarbon Fuels Space Daily June 25, 2010 Friday 'We're also studying other pathways that can produce aliphatic hydrocarbons of an appropriate length for diesel fuels without the need for cracking," Beller says. "Nature has devised a number of biocatalysts to produce hydrocarbons, and our goal is to learn more about them for the production of green transportation fuels." LOAD-DATE: June 25, 2010 LANGUAGE: ENGLISH PUBLICATION-TYPE: Web Publication Copyright 2010 Space Daily, Distributed by United Press International Non-Negative Media: No Information Found Other Language Media: Not Required Public Records: 1 OF 1 RECORD(S) FOR INFORMATIONAL PURPOSES ONLY Copyright 2013 LexisNexis a division of Reed Elsevier Inc All Rights Reserved. Full Name Address County Phone BELLER, HARRY I ROCKLAND ROCKLAND COUNTY ADDITIONAL PERSONAL INFORMATION SSN DOB Gender Le at Subject Summary Name Variations 1: BELIER, HARRY I 2: BELLER. HARRY 3: BELLER. HARRY I SSNs Summary No. SSN State Iss. Date Isis. Warnings Most frequent SSN attributed to subject: For internal use only SDNY_GM_00064860 CONFIDENTIAL - PURSUANT TO FED. R.ctON(FIDENTIAL DB-SDNY-0027685 EFTA_00175361 EFTA01299153 Page 2 New York 1972-1974 DOBs Reported DOBs: Possible E-Mail Addresses Address Summary - 4 records found No. Address 1 2: 3. 4: ROCKLAND COUNTY KINGS COUNTY KINGS COUNTY KINGS COUNTY Ad ress Details Address Other Associates STERN SR. ROBERT M Census Data tor Geographical Region Median Head of Household Age: 41 Median Income: $4Z 198 Median Home Value: $415.686 For internal use only Dates Phone SDNY_GM_00064861 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0027686 EFTA_00 175362 EFTA01299154 Page 3 Median Education 14 years 1. mi ciusehold Members Other Associates None Listed Dates Phone Census Dab for Geographical Region Median Head of Household Age: 43 Median Income: $43:768 Median Home Value: $597.222 Median Education 14 years Household Members Other Associates STERN SR. ROBERT M Dates Phone Census Data for Geographical Region Median Head of Household Age: 31 Median Income: $57:262 Median Home Value: $534.091 Median Education. 13 years Household Members None Listed Other Associates None Listed Voter Registrations -1 records found 1: New York Voter Registration Name: Residential Address: Home Phone: SSN: Date of Birth: Gender: Male Voter Information Registration Date: 8/15/1996 Last Vote Date: Party Affiliation: Active Status: ACTIVE Real Property - 3 records found 1: Assessment Record for ROCKLAND County, NY Owner Information For internal use only SDNY_GM_00064862 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027687 EFTA_00 I 75363 EFTA01299155 Page 4 Name: Address: County/FIPS: Address: County/FIPS: Data Source: Assessor's Parcel Number: Assessed Value: Total Market Value: 2: Assessment Record for Name: Address: County/FIPS: Address: County/FIPS: Data Source: Pro ert Information B Legal Information 392689 56.05-3-46 Assessment Information $86400 $24400 ROCKLAND County, NY Owner Information Pro erty Information ROCKLAND Legal Information Assessor's Parcel 392689 56.5-3-46 Number: Assessed Value: Total Market Value: Assessment Information $86400 $24400 3: Deed Record for ROCKLAND County Buyer Information Name: Name: Address: County/FIPS: Name: Address: County/FIPS: Address: County/FIPS: Data Source: Name: Seller Information Pr om o Information ROCKLAND B Lender Information ASTORIA FSLA Legal Information For internal use only SDNY_GM_00064863 CONFIDENTIAL - PURSUANT TO FED. R.CON(FIDENTIAL DB-SDNY-0027688 EFTA 00175364 EFTA01299156 Page 5 Contract Date: Recording Date: Document Number: Document Type: Book/Page: Sale Price: Loan Amount: Title Company: 09/18/1995 09/21/1995 950921225682 DEED 752/1993 Sale Information 5290000 Mortgage Information $150000 CHICAGO TITLE Motor Vehicle Registrations - 17 records found 1: NY MVR Registrant: DOB: Address: Original Registration Date: Registration Date: Registration Expiration Date: 2: NY MVR VIN: Class: Model Year: Make: Model: Series: Body Style: Weight: License Plate Type: License Plate Number: Plate State: VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2011 Make: Honda Model: Accord Series: ACCORD EX Body Style: Sedan 4 Door Weight: 3296 Owner Information R. HARRY I Registrant Information R. HARRY I ROCKLAND COUNTY Registration Information 12/17/2010 12/17/2010 12/16/2012 Ion PASSENGER CAR/LIGHT TRUCK 2011 Honda Accord ACCORD EX Sedan 4 Door 3296 Sib NY Plate Information Ion Name: DOB: Address: ROCKLAND COUNTY Lienholder Information Name: AMERICAN HONDA FINANCE CORP. Address: 201 LITTLE FALLS DR WILMINGTON. DE 19808-1674 NEW CASTLE COUNTY For internal use only SDNY_GM_00064864 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027689 EFTA_00I75365 EFTA01299157 Page 6 Title Information Title Transfer Date: 1/7/2011 Title Issue Date: 1/7/2011 3: NY MVR Registrant: DOB: Address: Original Registration Date: Registration Date: Registration Expiration Date: 4: NY MVR 5: NY MVR VIN: Class: Model Year: Make: Model: Series: Body Style: Weight: License Plate Type: Previous Plate Number: Previous Plate State: License Plate Number: Plate State: VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2000 Make: Honda Model: Odyssey Series: ODYSSEY EX Body Style: Sport Van Weight: 4170 Owner Information R, HARRY I Registrant Information R, HARRY I ROCKLAND COUNTY Registration Information 1/6/2006 12/4/2009 1/5/2012 Vehicle Information PASSENGER CAR/LIGHT TRUCK 2000 Honda Odyssey ODYSSEY EX Sport Van 4170 Plate Information If= NY tion Name: DOB: Address: ROCKLAND COUNTY Title Information Title Transfer Date: 2/3/2006 Title Issue Date: 2/3/2006 Registrant: DOB: Address: Registrant Information R, HARRY I ROCKLAND COUNTY Registration Information Original Registration Date: 12/12/2007 Registration Date: 11/18/2009 Registration Expiration Date: 12/11/2011 For internal use only SDNY_GM_00064865 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027690 EFTA_00I75366 EFTA01299158 Page 7 Vehicle Information 6: NY MVR 7: NY MVR VIN: Class: Model Year: Make: Model: Series: Body Style: Color: Weight: License Plate Type: Previous Plate Number: Previous Plate State: License Plate Number: Plate State: PASSENGER CAR/LIGHT TRUCK 2004 Nissan Altima ALTIMA/S/SL Sedan 4 Door Green 2980 Plate Information Ilila NY Vehicle Information VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2004 Make: Nissan Model: Altima Series: ALTIMA/S/SL Body Style: Sedan 4 Door Color: Green Weight: 2980 Owner Information Name: SE I FR, HARRY I DOB: Address: ROCKLAND COUNTY Title Information Title Transfer Date: 2/20/2008 Title Issue Date: 2/20/2008 Registrant Information Registrant: BELLER. HARRY I DOB: Address: Original Registration Date: Registration Date: Registration Expiration Date: VIN: Class: Model Year: Make: Model: Series: Body Style: Weight: License Plate Type: Previous Plate Number: Previous Plate State: ROCKLAND COUNTY Registration Information 10/5/2007 9/3/2009 10/4/2011 Vehicle Information PASSENGER CAR/LIGHT TRUCK 2007 Honda Accord ACCORD VALUE PACKAGE Sedan 4 Door 3100 Plate Information NY NY For internal use only SDNY_GM_00064866 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027691 EFTA_G0I 75367 EFTA01299159 Page 8 License Plate Number: • Plate State: NY 8: NY MVR Vehicle Information 9: NY MVR VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2007 Make: Honda Model: Accord Series: ACCORD VALUE PACKAGE Body Style: Sedan 4 Door Weight: 3100 Owner Information R. HARRY I Name: DOB: Address: ROCKLAND COUNTY Title Information Title Transfer Date: 11/2/2007 Title Issue Date: 11/2/2007 Registrant: DOB: Address: Original Registration Date: Registration Date: Registration Expiration Date: VIN: Class: Model Year: Make: Model: Series: Body Style: License Plate Type: Previous Plate Number: Previous Plate State: License Plate Number: Plate State: 10: NY MVR Registrant Information R. HARRY I ROCKLAND COUNTY Registration Information 12/27/2004 11/8/2006 12/26/2008 fi jem imiInformation PASSENGER CAR/LIGHT TRUCK 2001 Toyota Camry CAMRY CE/LE/XLE Sedan 4 Door Plate Information Priv NY NY metbn VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2001 Make: Toyota Model: Camry Series: CAMRY CE/LE/XLE Body Style: Sedan 4 Door Owner Information Name: R. HARRY I DOB: Address: For internal use only SDNY_GM_00064867 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027692 EFTA_00 175368 EFTA01299160 Page 9 ROCKLAND COUNTY Title Information Title Transfer Date: 1/31/2005 Title Issue Date: 1/31/2005 11: NY MVR Registrant: DOB: Address: Original Registration Date: Registration Date: Registration Expiration Date: VIN: Class: Model Year: Make: Model: Series: Body Style: Weight: License Plate Type: Previous Plate Number: Previous Plate State: License Plate Number: Plate State: 12: NY MVR 13: NY MVR VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 1996 Make: Ford Model: Windstar Series: WINDSTAR WAGON Body Style: Extended Spoil Van Weight: 3665 Owner Information R, HARRY I Registrant Information R, HARRY I ROCKLAND COUNTY Registration Information 10/28/2004 10/28/2004 12/16/2006 Vehicle Information PASSENGER CAR/LIGHT TRUCK 1996 Ford Windstar WINDSTAR WAGON Extended Sport Van 3665 Plate Information NY NY hide Information Name: DOB: Address: ROCKLAND COUNTY Lienholder Information Name: VALLEY NATIONAL BANK Address: 1445 VALLEY RD WAYNE. NJ 07470-2088 PASSAIC COUNTY Title Information Title Transfer Date: 1/21/1999 Title Issue Date: 1/21/1999 Registrant Information Registrant: Mr HARRY I DOB: For internal use only SDNY_GM_00064868 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027693 EFTA_00I75369 EFTA01299161 Page 10 Address: Original Registration Date: Registration Date: Registration Expiration Date: VIN: Class: Model Year: Make: Model: Series: Body Style: License Plate Type: Previous Plate Number: Previous Plate State: License Plate Number: Plate State: 14: NY MVR 15: NY MVR ROCKLAND COUNTY Registration Information 12/30/2002 12/30/2002 1/29/2005 Vehicle Information PASSENGER CAR/LIGHT TRUCK 1993 Toyota Camry CAMRY XLE Sedan 4 Door Plate Information IT= NY Vehicle Information VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 1993 Make: Toyota Model: Camry Series: CAMRY XLE Body Style: Sedan 4 Door Owner Information R, HARRY I Name: DOB: Address: ROCKLAND COUNTY Title Information Title Transfer Date: 3/1/2001 Title Issue Date: 3/1/2001 Registrant: DOB: Address: Original Registration Date: Registration Date: Registration Expiration Date: VIN: Class: Model Year: Make: Model: Series: Body Style: License Plate Type: Registrant Information R. HARRY I ROCKLAND COUNTY Registration Information 1/3/2000 1/3/2000 1/24/2002 mat ion PASSENGER CAR/LIGHT TRUCK 1987 Nissan Sentra SENTRA Station Wagon Plate Information Private For internal use only SDNY_GM_00064869 CONFIDENTIAL - PURSUANT TO FED. R.QCIIINIE IDENTIAL DB-SDNY-0027694 EFTA_00 175370 EFTA01299162 Page I I Previous Plate Number: Previous Plate State: NY License Plate Number: Plate State: NY 16: NY MVR Vehicle Information 17: NY MVR VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 1987 Make: Nissan Model: Sentra Series: SENTRA Body Style: Station Wagon Owner Information Name: BELLER, HARRY I DOB: Address: ROCKLAND COUNTY Title Information Title Transfer Date: 1/2/1998 Title Issue Date: 1/2/1998 Registrant: DOB: Address: Registrant Information R. HARRY I ROCKLAND COUNTY Registration Information Original Registration Date: 3/31/1997 Registration Date: 3/31/1997 Registration Expiration Date: 5/6/1999 nation VIN: Class: PASSENGER CAR/LIGHT TRUCK Model Year: 1988 Make: Pontiac Model: 6000 Series: 6000 LE Body Style: Station Wagon Weight: 3550 Plate Information License Plate Type: 'ilia License Plate Number: Plate State: NY Potential Relatives - 10 records found 1st Degree 9. 2nd Degree 1 No. Full Name 1. SSN Address/Phone For internal use only SDNY_GM_00064870 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027695 EFTA_00I 75371 EFTA01299163 Page 12 No. Full Name Address/Phone 2. 3. 4. 5 6. 7. =om For internal use only SDNY_GM_0006487i CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027696 EFTA_00I 75372 EFTA01299164 Page 13 No. Full Name Address/Phone 8.A. 9. Person Associates - 5 records found No. Full Name Address 1: 2: 3: SSN Phone DOB For internal use only SDNY_GM_00064872 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027697 EFTA_00 175373 EFTA01299165 Page 14 No. Full Name 4: 5: Address SSN Phone DOB Nei hbors - 10 records found Name Address Phone For internal use only SDNY_GM_00064873 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0027698 EFTA_00 175374 EFTA01299166 Page IS Employment - 1 records found 1: Company Name: CITIBANK Name: RY I SSN: Confidence: Medium Sources - 77 records found All Sources 77 Source Document(s) Deed Transfers 3 Source Document(s) Email addresses 2 Source Document(s) Historical Person Locator 4 Source Document(s) Motor Vehicle Registrations 28 Source Document(s) Person Locator 1 2 Source Document(s) Person Locator 2 9 Source Document(s) Person Locator 4 1 Source Document(s) Person Locator 5 7 Source Document(s) Person Locator 6 4 Source Document(s) Phone 3 Source Document(s) Tax Assessor Records 13 Source Document(s) Voter Registrations 1 Source Document(s) Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect This system should not be relied upon as definitively accurate. Before relying on any data this system supplies, it should be independently verified. For Secretary of State documents. the following data is for information purposes only and is not an official record. Certified copies may be obtained from that individual state's Department of State. Your DPPA Permissible Use is: Debt Recovery/Fraud For internal use only SDNY_GM_00064874 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0027699 EFTA_00I 75375 EFTA01299167 Page 16 Your GLBA Permissible Use is: Legal Compliance Copyright® 2013 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. D&B: Not Required LEGAL RESULTS: Court Cases: *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*" SUPREME COURT CIVIL SUITS FOR KINGS COUNTY, NEW YORK CASE-NAME: BELLER,ANNA & HARRY BELLER V. CITY WILLETS POINT CONTRACTING CORP., & FRAND MASCALI CONTRACTING CO., INC STATUS: DISPOSED ON 06/30/1987; SETTLED BEFORE TRIAL ACTION: OTHER TORTS NEGLIGENCE REQUEST FOR JUDICIAL INTERVENTION: 02/25/1986 NOTE OF ISSUE FILED: 02/21/1986 INDEX-NUMBER: 0155871983 JURY REQUESTED BY: PLAINTIFF JUDGE: PART 25 - JAMES W. HUTCHERSON PLAINTIFF ATTORNEY: ROSENBERG & HOROWITZ, S & H r DEFENDANT ATTORNEY: PAIR A CROTTY CORP COUNSEL For internal use only SDNY_GM_00064875 CONFIDENTIAL - PURSUANT TO FED. R.COINE IDENTIAL DB-SONY-0027700 EFTA_OOI 75376 EFTA01299168 Page 2 BELLER,ANNA v. CITY Mark H. FELDMAN pro se, Plaintiff, v. JACKSON MEMORIAL HOSPITAL, etc., et al., Defendants No. 79-758-Civ.-JWK UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 509 F. Supp. 815; 1981 U.S. Dist. LEXIS 11119; 1981-2 Trade Cas. (CCH) P64,165 February 23, 1981 SUBSEQUENT HISTORY: r*ii As Corrected March 17, 1981. CASE SUMMARY: PROCEDURAL POSTURE: Defendants moved the court to dismiss plaintiffs complaint, which alleged violations of 42 U.S.C.S. §§ 1983. 1985. and 1986, and 15 U.S.C.S. §§ 1 and 2 OVERVIEW: Plaintiff was denied membership on the medical staff. a privilege granted to most licensed physicians. He sued defendants, alleging that they had willfully and maliciously acted to prevent him from practicing podiatry in certain public and private hospitals by withholding that privilege. Specifically. he alleged that defendants' actions had deprived him of his civil rights in violation of 42 U.S.C.S. §§ 1983, 1985, and 1986. he also argued that their behavior violated 15 U.S.C.S. §§ 1 and 2 as a conspiracy in restraint of trade Defendants moved the court for dismissal. Noting that pro se pleadings mandated a more lenient standard. the court held that dismissal of plaintiff's antitrust claims would have been premature Accordingly, the court determined that it would determine the substance of plaintiffs antitrust allegations after he had been afforded an opportunity to conduct limited discovery into the issues. and to reply to the objections then raised by defendants. Finding no federal right to membership on a hospital staff. the court granted defendants' motion with respect to the civil rights allegations. OUTCOME: The court concluded that plaintiff had no cognizable claim that his civil rights had been violated, but refused to dismiss his complaint as to his antitrust claim. Defendants' motion was thus granted in part and denied in part. CORE TERMS: interstate commerce, SHERMAN ACT, podiatrist, conspiracy, staff, administrators, orthopedic, jurisdictional, patients, doctors, medical staff, private hospitals, For internal use only SDNY_GM_00064876 CONFIDENTIAL - PURSUANT TO FED. R.QP .NEIDENTIAL DB-SDNY-0027701 EFTA_00 175377 EFTA01299169 Page 3 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 membership, podiatry, cause of action, civil rights, federal right, deprived, training, state law, pro se, involvement, class-based, profession, interstate, antitrust, invidious, licensed, nexus, color LexisNexis(R) Headnotes Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss [HN1] When determining a motion to dismiss, courts are obliged to construe all of the material allegations contained in the complaint in the light most favorable to the plaintiff with those allegations accepted as true. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss [HN2] Dismissal of an action on a bare-bones pleading should always be carefully and deliberately considered since it is a precarious option with a high mortality rate. Civil Procedure > Parties > Self-Representation > Pleading Standards [HN3] Pro se pleadings are to be held to a less stringent standard than those drafted by an attorney. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss Civil Procedure > Pleading & Practice > Pleadings > Complaints > Requirements [HN4] Fed. R. Civ. P. 8(a) enunciates the general standard that a pleading must meet in order to withstand a motion to dismiss. The pleader is entitled to considerable latitude regarding the mode of stating his claim for relief, provided the pleading gives reasonable notice of the claim or claims asserted. Constitutional Law > Congressional Duties & Powers > Commerce Clause > Interstate Commerce > General Overview Healthcare Law > Antitrust Actions > Facilities Transportation Law > Interstate Commerce > Federal Powers [HN5] The general scope of the Sherman Act ("Act"), 15 U.S.C.S. § 1, et seq., encompasses the entire regulatory power granted congress under the commerce clause. Although the Act includes more than simply a restraint on trade motivated by a desire to limit interstate commerce, federal enforcement must turn initially on whether or not the acts alleged in the complaint could likely have a substantial and adverse effect upon interstate commerce. Antitrust & Trade Law > Sherman Act > Jurisdiction [HN6] Even a wholly intrastate activity may be regulated by the Sherman Act, 15 U.S.C.S. § 1 et seq., where that activity would place an unreasonable burden on the free and uninterrupted flow of interstate commerce. Civil Rights Law > Section 1983 Actions > Scope For internal use only SDNY_GM_00064877 CONFIDENTIAL - PURSUANT TO FED. R.CON(FIDENTIAL DB-SDNY-0027702 EFTA_00 175378 EFTA01299170 Page 4 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 [HN7] In order to sustain a 42 U.S.C.S. § 1983 claim, plaintiff must allege: that the defendants deprived him of some right secured by the United States Constitution or laws of the United States and that the defendants acted under color of state law. Civil Rights Law > Section 1983 Actions > Elements > Protected Parties Civil Rights Law > Section 1983 Actions > Scope [HN8] Both elements of a 42 U.S.C.S. § 1983 action must be alleged and proven before relief can be forthcoming. Civil Rights Law > Section 1983 Actions > Elements > Color of State Law > General Overview Healthcare Law > Actions Against Healthcare Workers > General Overview [HN9] Private entities are subject to the civil rights laws only if their activities are significantly affected with state involvement. Civil Rights Law > Section 1983 Actions > Scope [HN10] A private hospital is subject to the provisions of 42 U.S.C.S. § 1983 and U.S. Const. amend. XIV only if its activities are significantly affected with state involvement. Civil Rights Law > Private Discrimination Civil Rights Law > Section 1983 Actions > Scope [HN11] Title 42 U.S.C.S. § 1983 and U.S. Const. amend. XIV do not preclude invidious discrimination by private parties. Civil Rights Law > Section 1983 Actions > Elements > Color of State Law > General Overview [HN12] The mere existence of some government tie to a private organization is not sufficient to support a finding of state action where the state has not sufficiently involved itself in the invidious discrimination. Moreover, the state must be involved in more than some activity of the offending institution itself, it must have been involved with the activity that caused the injury to plaintiff. Civil Rights Law > Section 1983 Actions > Elements > Color of State Law > General Overview [HN13] The mere fact that a business is subject to state regulation does not by itself convert its action into that of the state for purposes of U.S. Const. amend. XIV. Civil Rights Law > Conspiracy > Knowing Nonprevention [HN14] No claim for relief will lie under 42 U.S.C.S. § 1986 until a valid claim has been established under 42 U.S.C.S. § 1985. COUNSEL: Mark H. Feldman, pro se. J. Elisabeth Middlebrooks, Richard B. Adams, A. Blackwell Stieglitz, Miami, Fla., for defendants. For internal use only SDNY_GM_00064878 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027703 EFTA_OOI 75379 EFTA01299171 Page 5 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 OPINION BY: KEHOE OPINION p8161 MEMORANDUM ORDER ON MOTION TO DISMISS Mark H. Feldman, a licensed podiatrist, has filed this pro se action against multiple defendants, including many physicians, hospitals p8171 and medical administrators located in the southern Florida geographical area. Central to plaintiffs cause is his allegation that the defendants have willfully and maliciously acted to prevent him from practicing podiatry I in certain public and private hospitals by denying him membership on the medical staff normally granted licensed physicians. Plaintiff alleges that the defendants' actions have amounted to a conspiracy in restraint of trade and that they have deprived him of his constitutionally guaranteed civil rights. 1. "The diagnosis and treatment of foot disorders." J. Schmidt. Attorneys' Dictionary of Medicine and Word Finder (1960). ["2] Plaintiff's original 54 page Complaint was dismissed without prejudice on the grounds that it was repetitious, redundant and violated rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff was subsequently permitted to amend his Complaint and filed an Amended Complaint considerably abridged to 14 pages. The defendants have responded to the Amended Complaint by renewing their original joint motion to dismiss pursuant to Fed.R.Civ.P. 12(b) and adopting the arguments (with some supplementation) contained therein. They contend that, notwithstanding its newly condensed format, the Amended Complaint remains incurably defective since, inter alia, the Court lacks jurisdiction over the subject matter of the action, and it fails to state a claim upon which relief can be granted. The Court reserved ruling on the matter until the defendants had an opportunity to depose the plaintiff in order to ascertain more fully the specific allegations underlying his cause of action. Plaintiff has now been deposed and accordingly, the motion to dismiss is ripe for consideration by the Court. I. THE STANDARD BY WHICH THE AMENDED COMPLAINT MUST BE MEASURED Plaintiffs Amended Complaint is ["3] directed against numerous parties, among them various doctors, medical administrators, public and private hospitals. 2 Plaintiff [' 818] alleges: (a) that certain defendant physicians conspired with the defendant hospitals to prevent him from competing in the medical marketplace by arbitrarily rejecting his application to practice podiatry in those hospitals; (b) that the defendants conspired to ruin plaintiffs podiatry practice and drive him out of business; (c) that the defendants interfered with plaintiff's right to practice his chosen profession and to contract with patients regarding medical services; (d) that the defendants maliciously discriminated against him solely because he is a podiatrist and not a physician; and (e) that the defendants generally violated his civil rights. Plaintiff seeks a judgment from the Court which would primarily rule that he cannot be denied membership on the staff of the defendant hospitals, that would allow him the use of the medical facilities of those hospitals, and that would enjoin the For internal use only SDNY_GM_00064879 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027704 EFTA_00175380 EFTA01299172 Page 6 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 defendants from controlling or regulating the practice of podiatry in any way. Plaintiff also seeks compensatory and punitive damages totaling 50 million [**4] dollars. 2. The Amended Complaint contains the following list of defendants: Jackson Memorial Hospital; The Board of Trustees. Public Health Trust of Dade County. Florida: Fred J. Crowell. President. Public Health Trust: William W. Cleveland. M.D., President of the Medical Staff: Robert Zeppa. M.D.. Chief of Surgery: Wiliam McCollough. M.D., Chief of Orthopedics; Agusto Sarrniento, M.D.; Wallace Miller, M.D.; Harry Berrer, M.D.: Nan Cohen, M.D.: Edward CuNipher, M.D.; Harvey Grable, M.D.; Ledford Gregory, M.D.; Michael Guyer. M.D.; Marshall Hall. M.D.; Claude Holmes. M.D.; Arthur Pearl, M.D.; Salvador Ramirez, M.D.; Thomas Samartino, M.D.; Mario Stone, M.D.; Wiliam Terheyden, M.D.; Samuel Turek. M.D.; and Cedars of Lebanon Hospital Corp.. Inc.; and Cedars of Lebanon Hospital Care Center. Inc.; Dr. Jay Ziskind; Rufus Broadaway, M.D., Chief of Surgery: Marshall Hall. M.D.. Chief of Orthopedics: Eugene Konrad. M.D.. Chief of the Medical Staff: Harry BelIer, M.D.: Alan B. Cohen. M.D.: Edward Cullipher. M.D.: Harvey Grable. M.D.; Salvador Ramirez. M.D.; Mario Stone. M.D.: and Mount Sinai Medical Center. Inc.: Alvin Goldberg. Executive Director; Harold Glick. M.D.. Chief of the Medical Staff; Charles Weiss, M.D.. Chief of Orthopedics; Sheldon Marne. D.P.M.. Podiatrist: Mario Stone. M.D.: Samuel Turek. M.D.: Alvin Tobis. M.D.: Lester Russin. M.D.; and South Broward Hospital District. Memorial Hospital of Hollywood. Inc.: Maynard Abrams. Chairman. South Broward Hospital District; S.A. Mudano, Administrator; Robert Berger, M.D., Chief of Staff; Harry Fisher. M.D., Chief of Orthopedics; Paul Bind, M.D.: Larry Rosenbatrn, M.D.: Alfonso Petty. M.D.: George Crane. M.D.: Robert Niles. M.D.; North Broward Hospital District, Inc.; North Broward Hospital Dstnct Board of Commissioners; Hamilton Forman. Chairman; Bernie Welch. District Director and Hospital Administrator; Broward General Medical Center. Inc.; George F. Rahilly, M.D., Chief of Staff and Orthopedic Surgeon; and North Broward Hospital, Inc.; Robed L. Kennedy. Administrator; B. McNierney, M.D.; J. Gamble. M.D.; Nies Lestrange, M.D.: Peter Sciarrett. M.D.; Wylie Scott. M.D.; and Florida Medical Center Hospital. Inc.; Maxwell Dauer. Ph.D.: Frank Stein. M.D.: Alvin Stein. M.D.; Gary Krulik, M.D.: and Bemett Community Hospital. Inc.: and Holy Cross Hospital. Inc.; and North Beach Medical Center. Inc.; and Pembroke Pines General Hospital. Inc.; David Drant. M.D.; Martin Medelson, M.D.: Alfonso Petti. M.D.; Robert Bronfman, M.D.: Neil Beinhaker, M.D.; Larry Rosenbaum. M.D.: and Imperial Point Hospital. Inc.: George F. Rahily. M.D.: Sidney Cole. M.D.: Doctors General Hospital. Inc.; D. L. Gross. Administrator; E. Rockwood. D.O.: International Hospital. Inc.; John Silver. Administrator; and North Miami General Hospital. Inc.; Robert Bruce. Administrator; Lloyd Moriber, M.D.. Chief of Orthopedics; Melvyn Drucker. M.D.; and Cypress Community Hospital, Inc.; Barry Schochet. Administrator; and North Ridge General Hospital, Inc.; David Cornell. Administrator. Some of the defendants have been listed more than once in the style of the Amended Complaint. One of the contentions raised by the defendants in their joint motion to dismiss is that not all defendants have been properly served. The Court will reserve ruling on the service aspects of the motion to dismiss. ["5] Plaintiff invokes the Court's jurisdiction under 28 U.S.C. §§ 1343, 2201, 2202, 15 U.S.C. §§ 15, 26, and 42 U.S.C. §§ 1983, 1985 and 1986. The Court has jurisdiction to decide all of the issues raised by the motion to dismiss. [HN1] When determining a motion to dismiss, of course, the Court is obliged to construe all of the material allegations contained in the Amended Complaint in the light most favorable to the plaintiff with those allegations accepted as true. See, e.g., Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969); Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir. 1980); 5 Wright & Miller, Federal Practice and Procedure: Civil § 1363 (1969). Moreover, [FIN2] dismissal of an action on a barebones pleading should always be carefully and deliberately considered since it is a precarious option with a high mortality rate. Voter Information Project, supra; Barber v. MN "Blue Cat," 372 F.2d 626 (5th Cir. 1967). Plaintiff has proceeded pro se with his action from its inception despite the Court's admonition that the assistance of counsel would be highly beneficial in this case, a cause involving several subtle and complex issues of law. [**6] In considering the motion to dismiss, however, the Court has not penalized plaintiff for proceeding in his own behalf where the law mandates that [I-IN3] pro se pleadings are to be held to a less stringent standard than those drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Craft v. Texas Board of Pardons & Paroles, 550 F.2d 1054 (5th Cir.), cert. denied, 434 U.S. 926, 98 S. Ct. 408, 54 L. Ed. 2d 285 (1977); Shaw v. Briscoe, 541 F.2d 489 (5th Cir. 1976), cert. denied, 430 U.S. 933, 97 S. Ct. 1556, 51 L. Ed. 2d 778 For internal use only SDNY_GM_00064880 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027705 EFTA_00175381 EFTA01299173 Page 7 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 (1977); Bruce v. Wade, 537 F.2d 850 (5th Cir. 1976); Williams v. McCall, 531 F.2d 1247 (5th Cir. 1976); Cook v. Whiteside, 505 F.2d 32 (5th Cir. 1974). Indeed, the Court finds plaintiffs Amended Complaint to be rather skillfully drafted when considering the complex issues raised and the fact that plaintiff has no prior legal experience. 3. Although these cases al arise in the context of prisoner pro se pleadings, the same standard should apply to a nonposoner plaintiff where he chooses to proceed m his own behalf. [""7] Following the guidance of these fundamental principles, the Court has conducted a careful review of the Amended Complaint and concludes that plaintiff is unable to state a claim upon which relief can be granted as to that portion of the Amended Complaint asserting violations of his civil rights. As for the remainder of the Amended Complaint alleging antitrust violations, [119] the Court concludes that it would be premature to dismiss at the present stage of the proceedings. A discussion of the rationale behind this determination is in order. II. GENERAL PLEADING REQUIREMENTS [HN4] Fed.R.Civ.P. 8(a) enunciates the general standard that a pleading must meet in order to withstand a motion to dismiss. The pleader is entitled to considerable latitude regarding the mode of stating his claim for relief, provided the pleading gives reasonable notice of the claim or claims asserted. The Court considers the Amended Complaint amply sufficient to meet the general notice requirements of Rule 8 by adequately setting forth a claim and giving the defendants fair notice of its basis. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); 5 Wright & Miller, Federal Practice and [nEl] Procedure : Civil §§ 1216, 1217, 1286 (1969). ° 4. OW of an abundance of caution and at the defendants' request, the Court ordered plaintiff deposed in order that the underlying nature of his claim was more readily imderstood. As a result, the defendants were fully apprised of the nature of this claim. III. SHERMAN ACT ALLEGATIONS The Sherman Act, 15 U.S.C. § 1 et seq., was enacted in 1890 to prohibit combinations and conspiracies in restraint of trade (Section 1), and to regulate monopolies (Section 2). Federal jurisdiction is predicated upon an allegation that the actions of the defendant have some nexus or connection with interstate commerce. Before the federal court can acquire jurisdiction, a plaintiff must show that the defendant's actions substantially and adversely affect interstate commerce. Failure to satisfy this threshold jurisdictional prerequisite will result in the dismissal of the complaint. [HN5] The general scope of the Sherman Act encompasses the entire regulatory power granted Congress [""9] under the Commerce Clause. Apex Hosiery Company v. Leader, 310 U.S. 469, 60 S. Ct. 982, 84 L. Ed. 1311 (1940). Although the act includes more than simply a restraint on trade motivated by a desire to limit interstate commerce, federal enforcement must turn initially on whether or not the acts alleged in the complaint could For internal use only SDNY_GM_00064803i CONFIDENTIAL - PURSUANT TO FED. R.Q;;;)N(F IDENTIAL DB-SDNY-0027706 EFTA_00 175382 EFTA01299174 Page 8 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 likely have a substantial and adverse effect upon interstate commerce. Hospital Building Company v. Trustees of Rex Hospital, 425 U.S. 738, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976); Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 95 S. Ct. 392, 42 L. Ed. 2d 378 (1974); Burke v. Ford, 389 U.S. 320, 88 S. Ct. 443, 19 L. Ed. 2d 554 (1967). If so, [HN6] even a wholly intrastate activity may be regulated by the Sherman Act where that activity would place an unreasonable burden on the "free and uninterrupted flow of interstate commerce." Rex Hospital, supra, 96 S. Ct. at 1853. As one commentator described the jurisdictional test to be applied in determining the sufficiency of a Sherman Act complaint: (The) test applies when the chalenged conduct is not "in commerce:" it will nevertheless be subject to the Act if it materially affects interstate commerce. In deciding r10) these issues. quantitative factors become pertinent. It is necessary not only that there be a logical causal connection between the activity and the flow of commerce, it is also necessary that the flow of commerce be affected in some substantial way: if the impact is trivial, the Sherman Act does not apply. Thus. the oNy commercial activities beyond the reach of the Sherman Ad are those which are local in the double sense that they are neither within nor have any sigrrficant effect on the flow of interstate commerce. (footnotes omitted) L. Sullivan, The Law of Antitrust (1977), § 233 at 710. Plaintiffs allegations respecting interstate commerce are contained in paragraphs 24 through 28 of the Amended Complaint: 24. A significant number of patients, actual and potential of the plaintiff and defendant doctors and hospitals, are covered by the Federal Medicare and State Medicaid Programs. Treatment of those patients generates millions of dollars of interstate revenue. rinoi 25. Defendant hospitals annually receive millions of dollars from insurance companies located outside of Florida for medical and surgical services provided by defendant I-, hospitals and doctors to non permanent nonresident patients. 26. Defendant doctors and hospitals purchase millions of dollars of supplies and equipment from sons outside of the state. 27. Rules and regulations promulgated by defendant doctors and hospitals to control the practice of Podiatrists. by limiting the privileges, refusing admittance, came from out of state sources (sic), as in the instance of defendant Jackson Memorial Hospital. whose GUIDELINES FOR PODIATRY came from THE DEPARTMENT OF ORTHOPEDIC SURGERY at the Massachusetts General Hospital in Boston. Mass. 28. Cessation and interruption of Podiatry Clinics and Training programs in defendant hospitals deried to out of state Podiatrists essential surgical training necessary to compete for surgical patients in their home States. Elimination of said training programs by defendant hospitals and orthopedic surgeons prevented out of slate Podiatrists from coming to Florida specifically for such surgical training programs. Plaintiffs first jurisdictional hurdle is to establish the required nexus between the defendants' challenged activity and interstate commerce. It is this Court's ("12] determination that plaintiff has met this burden and properly invokes the Court's jurisdiction under the Sherman Act. The restraint that plaintiff opposes in his action is that involving an alleged conspiracy by the defendants to deny podiatrists in general, s and the plaintiff in particular, a certain kind of access to hospital facilities, that access accorded members of the hospital's medical staff. Membership in the medical staff is usually limited to licensed physicians. For internal use only SDNY_GM_00064882 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027707 EFTA_00 175383 EFTA01299175 Page 9 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 5. There are no class action allegations contained in the Amended Complaint. The hospitals involved in this action furnish medical care and services to the community in a variety of ways: by caring for patients, training doctors and staff personnel, developing research facilities, and extending staff privileges to private physicians. Much of this activity happens to spill across the boundaries of Florida and into the stream of interstate commerce. It is this activity of providing medical care to patients that the defendants allegedly ["13] seek to exclude plaintiff from participation and involvement. It is this activity that must be connected with interstate commerce in order to sustain jurisdiction. Plaintiff must establish that the medical services supplied by the defendants have the required effect on interstate commerce. He is not required to show that the alleged conspiratorial actions of the defendants have any connection with interstate commerce. To rule otherwise would vitiate the intended scope of the law and impose an insuperable burden upon a plaintiff alleging an anticompetition conspiracy. Such a conspiracy would seldom reach interstate proportions though the object of the conspiracy might be federal in scope. The Court's conclusion that the Amended Complaint is jurisdictionally sound is supported by the recent decision of McLain v. Real Estate Board of New Orleans, 444 U.S. 232, 100 S. Ct. 502, 62 L. Ed. 2d 441 (1980), in which the Supreme Court held that the district court erred in dismissing a complaint which alleged a price fixing conspiracy involving several Louisiana real estate brokerage firms. The Court stated that the plaintiff could establish the requisite jurisdiction under the Sherman r*14] Act by demonstrating that a substantial effect on interstate commerce was generated by the defendants' brokerage activities. Referring specifically to the requirement that plaintiff must allege a relationship between the activity involved and some aspect of interstate commerce, the Court observed: To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a r821] substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates. or by those other aspects of respondents' activity that are alleged to be unlawful. The validity of this approach is confirmed by an examination of the case law. If establishng juisdiction required a shoving that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended artioompeblhe effect. ilia is not the rule of our cases. See American Tobacco Co. v. United States. 328 U.S. 781.811.66S. rim Ct. 1125. 1139. 90 L. Ed. 1575 (1946): Urited States v Socony Vacuum Oil Co.. 310 U.S. 150. 225. n. 59. 60 S. Ct. 811. 846. 84 L. Ed. 1129 (1940).... Id. 100 S. Ct. at 509. Defendants have cited several cases in their memoranda which would appear to support dismissal of the Amended Complaint: Wolf v. Jane Phillips Episcopal Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975); Riggall v. Washington County Medical Society, 249 F.2d 266 (8th Cir. 1957); Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125 (10th Cir. 1952). These cases all involved dismissals of complaints for defective jurisdictional allegations under the Sherman Act in situations similar to that now before this Court. The dismissed antitrust complaints in the cases cited appear to involve only general jurisdictional allegations devoid of the specificity contained in plaintiff's Amended Complaint. Furthermore, these cases explicitly reject the analysis described above which links jurisdiction to the stream of interstate commerce by focusing upon the interstate For internal use only SDNY_GM_00064883 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027708 EFTA_00175384 EFTA01299176 Page 10 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 nature of the defendants' business of providing hospital care and services. E. g. Wolfe, supra at 687-688. It is the Court's opinion that the ["16] proper standard to be used is that illustrated in the recent Supreme Court cases, McLain, supra; Rex Hospital, supra, that place the emphasis upon the interstate character of the defendants activities in general and not solely the alleged conspiratorial acts, thereby precluding dismissal of a complaint before the plaintiff has at least been accorded the opportunity of discovering facts in support of his claim. To the extent that the cases cited by the defendants apply a contrary standard, the Court declines to follow them. The Court will determine the substance of plaintiffs antitrust allegations after he has had an opportunity to conduct limited discovery into the issues and can prepare an adequate response to the other objections raised by the defendants. Defendants will then be allowed to renew their remaining objections to the Sherman Act claim in an appropriate manner. IV. CIVIL RIGHTS CLAIMS (a) § 1983 allegations Although 42 U.S.C. § 1983 is relatively simple and straightforward in its language, IFIN71 in order to sustain his claim plaintiff must allege: (1) that the defendants deprived him of some right secured by the Constitution or laws of the United States; and (2) rin that the defendants acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 14-4, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981); Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980). [HN8] Both of these elements of a § 1983 action must be alleged and proven before relief can be forthcoming. An inspection of the Amended Complaint reveals that plaintiff can prove no set of facts that will permit the relief he seeks since he has been deprived of no federal or constitutional right. Nor have all of the defendants acted under color of state law. 6. "Every person wito, under color of any statute, ordinance, regtiation, custom, or usage, of any State or Territory, subjects, or causes to be subjected. any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights. privileges. or immunities secured by the Constitution and laws, shall be liebte to the party injured in an action al law, suit in equity. or other proper proceeding for redress." [ *18] [822] The defendants' alleged willful and malicious exclusion of the plaintiff from the medical staff simply does not constitute a violation of a federal right. Plaintiff has cited the Court to no authority supporting the proposition that a podiatrist has a federal right to membership on a hospital staff. Nor has the Court independently found any authority to support plaintiffs civil rights claims. To the contrary, the Fifth Circuit recently held that a podiatrist's constitutional rights went untrammeled when he was denied staff membership at a public hospital. Shaw v. Hospital Authority of Cobb County, 614 F.2d 946 (5th Cir.), cert. denied, 449 U.S. 955, 101 S. Ct. 362, 66 L. Ed. 2d 220 (1980). 7. Although this case arose as an action to remedy alleged due process and equal protection violations and was not brought pursuer* to the civil rights laws. the Shaw court nonetheless found that Dr. Shaw suffered no violation of a federal right on facts For internal use only SDNY_GM_00064884 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027709 EFTA_00 175385 EFTA01299177 Page 11 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 nearly identical to those sib judge. The Court ruled that in the absence of a showing that the denial of staff privileges was not rationally based, or that it was precipitated by invidious racial discrimination. It is not the province of this court to legislate the final resolution of a problem indigenous to the medical profession.' Id. at 952. There was also some indication given by plaintiff at his deposition that his cause of action really involved a due process and equal protection claim. See plaintiff's deposition at 52. [`*19] By adopting the memorandum decision of the district court, the Fifth Circuit found no constitutional defect in excluding Dr. Shaw from membership on a hospital medical staff by reason of his status as a podiatrist. The Court declined to interfere in an area that traditionally has been the province of the medical profession and not ordinarily subject to governmental regulation. In light of Shaw, the Court must reject plaintiff's invitation to find that he has been deprived of a federal right in this instance. The Court agrees with the private hospital and physician defendants that they are not liable under § 1983 even if plaintiff had been deprived of some federal right. It is established that (HN9] private entities are subject to the Civil Rights laws only if their activities are significantly affected with state involvement: The district court correctly held that (1-114101 a private hospital is subject to the provisions of 42 U.S.C. § 1983 and the Fourteenth Amendment oNy if its activities are significantly affected with state involvement. [HN11) Section 1983 and the Fourteenth Amendrnert do not preclude invidious discrimination by private parties. Civil Rights Cases, 109 U.S. 3. it 3["20] S. Ct. 18.21. 27 L. Ed. 835.841 (1883). Greco v. Orange Memorial Hospital Corporation, 513 F.2d 873, 877-878 (5th Cir.), cert. denied, 423 U.S. 1000, 96 S. Ct. 433, 46 L. Ed. 2d 376 (1975). [FIN12) The mere existence of some government tie to a private organization is not sufficient to support a finding of state action where the state has not sufficiently involved itself in the invidious discrimination. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972). Moreover, the state must be involved in more than some activity of the offending institution itself, it must have been involved with the activity that caused the injury to plaintiff. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1979) ("(T)he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." 8); New York Jaycees v. United States Jaycees, 512 F.2d 856 (2d Cir. 1975). Accord, Sims v. Jefferson Downs, 611 F.2d 609 (5th Cir. 1980). 8. Id 419 U.S. at 351. 95 S. Cl. at 453. also quoted in Sims v. Jefferson Down. infra at 611. r21] Plaintiffs only reference to the state action nexus by the private hospital defendants is that these hospitals are licensed by state law. [FIN13] "The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth [1323] Amendment." Jackson v. Metropolitan Edison Co., supra at 350, 95 S. Ct. at 453. 9. Paragraph 49 C of the Amended Complaint refers to FIa.Stat. Chap. 395 concerning Hospital Licensing and Regulation procedures for hospitals situated in this state. For internal use only SDNY_GM_00064885 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027710 EFTA_00 175386 EFTA01299178 Page 12 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 Plaintiff's claims do not involve any racially discriminatory practices that might justify a more expansive approach to the issue. Based upon the state action allegations contained in the Amended Complaint, the private hospital and physician defendants are not subject to suit under § 1983 for their actions against the plaintiff, actions involving the administrative affairs of the hospitals. The policy of the Orange Memorial Hospital Corporation does r'22] not impinge upon the rights of a racial group seeking admittance and treatment. but rather affects primarily only the interns? affairs of the facility. A secondary effect of the corporation's policy is admittedly to discriminate against persons seeking to obtain and physicians desiring to perform elective abortions. We feel, however, that the interest of the hospital in ordering its internal administrative affairs outweighs the interest of the people disadvantaged in this case. Greco, supra at 880. What involvement the state may have through its licensing procedures is not actionable unless these regulations somehow compelled the hospitals or physicians to act against plaintiff in an unlawful manner. Waters v. St. Francis Hospital, 618 F.2d 1105 (5th Cir. 1980). There is no allegation to this effect in the Amended Complaint. (b) § 1985 allegations Plaintiff has no claim under 42 U.S.C. § 1985(3) since the Amended Complaint fails to contain any allegations that would show both the private deprivation of the enjoyment of the laws and an invidious class-based discriminatory motivation (usually, but not always, involving racial bias). McLellan v. Mississippi Power [""23] & Light Co., 545 F.2d 919 (5th Cir. 1977). " 10. "If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another. for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws...." § 1985(1) and (2) are inapplicable. 11. This was an en bane decision in which the majority held that an employee discharged from private employment solely because he filed a petition in voluntary bankruptcy has no cause of action under 42 U.S.C. § 1985(3). The majority exhaustively analyzed the application of the statute by following the guidelines prescribed by the Supreme Court in Griffin v. Breckenridge. 403 U.S. 88.91 S. Ct. 1790.29 L. Ed. 2d 338 (1971). The Supreme Court in Griffin held that § 1985(3) reaches private conspiracies as well as those performed under color of state law and elucidated the necessary elements to successfully maintain a cause of action under this section. In its opinion, the Fifth Circuit expressly reserved decision on whether Congress intended only racial bias to activate the provisions of the statute but advised restraint when a court is confronted with class- based discrirnination grounded in a non-racial animus. McLellan. supra at 929. ['*24] Plaintiff has not alleged and the Court fails to discern any illegal conduct committed by the defendants in acting to deprive plaintiff of a position on the hospital medical staff. 17 Moreover, there has been no allegation of any racially motivated discrimination against plaintiff by the defendants. He alleges a class-based animus against him as a podiatrist. This discrimination is not actionable under the cases heretofore construing the reach of § 1985(3): Federal Courts have recognized that those who are discriminated against because of political views or associations fall with (sic) the protective scope of Section 1985(2) and (3). Courts have found a class-based animus sufficient to support causes of action where the conspiracy is directed toward supporters of a particular political candidate. For internal use only SDNY_GM_00064886 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027711 EFTA_00 175387 EFTA01299179 Page 13 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 Cameron v. Brock, [M24] 473 F.2d 608 (6th Cir. 1973) and Means v. Wilson. 522 F.2d 833 (8th Cu. 1975). con. denied. 424 U.S. 958. 96 S. Ct. 1436. 47 L. Ed. 2d 364 (1976): voters who were deceived about the actual effect of their vote. Smith v. Cherry. 489 F.2d 1098 (7th Cir. 1973), cert. denied. 417 U.S. 910.94 S. Ct. 2607.41 L Ed. 2d 214 (1974): individuals critical r'245] of the President and his policies. Glasson v. City of Louisville. 518 F.2d 899 (6th Cir.). cert. denied. 423 U.S. 930.96 S. Ct. 280.46 L. Ed. 2d 258 (1975); members of a group advocating an unpopular position. Puentes v. Sullivan. 425 F. Supp. 249 (W.D.Tex.1977); laborers who are not members of a union. Scott v. Moore. 461 F. Supp. 224 (E.D.Tex.1978): members of the teaching profession who talk or associate with the CIA. Selzer v. Berkowitz. 459 F. Supp. 347 (E.D.N.Y.1978): and students who exercise their first amendment rights by joining certain organizations. Brown v Villanova University. 378 F. Supp. 342 (E.D Pa.1974). Kimble v. D. J. McDuffy, Inc., 623 F.2d 1060, 1067 (5th Cir. 1980) (rehearing en banc pending). 12. The Court excludes the Sherman Act court contained in the Amended Complaint which alleges an anticompetitive conspiracy on the part of the defendants. If plaintiff sustains these allegations with proof, a remedy is already provided for by that law. See 15 U.S.C. §§ 158, 26. r26] For these reasons, plaintiff's § 1985 claim cannot be sustained. (c) § 1986 allegations [FIN14) No claim for relief will lie under 42 U.S.C. § 1986 13until a valid claim has been established under § 1985. Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975); Zentgraf v. Texas A & M University, 492 F. Supp. 265 (S.D.Tex.1980); Shore v. Howard, 414 F. Supp. 379 (N.D.Tex.1976). Plaintiff having established no § 1985 claim, the § 1986 claim must also be dismissed. 13. This section extends liability in damages to those persons "who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 ... are about to be committed, and having power to prevent or aid in preventing the commission of the same. (neglect or refuse) so to do...." (d) Summary Whether plaintiff couches his claims for relief under the rubric of due process, equal protection or the civil rights laws, the Amended Complaint alleging violations of plaintiffs civil rights must be dismissed for failure to state a claim r271 upon which relief can be granted. V. CONCLUSION After a thorough review of the applicable law, the Court concludes that plaintiff has no cognizable claim under either 42 U.S.C. §§ 1983, 1985 or 1986. The Court further concludes that it would be premature to dismiss the Amended Complaint as to the Sherman Act claim without permitting plaintiff an opportunity to conduct limited discovery and respond to the objections raised by the defendants, should they elect to renew them. Accordingly, it is ORDERED AND ADJUDGED that the defendants' joint motion to dismiss is GRANTED in part and DENIED in part as follows: For internal use only SDNY_GM_00064887 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027712 EFTA_00 175388 EFTA01299180 Page 14 509 F. Supp. 815, *; 1981 U.S. Dist. LEXIS 11119, **; 1981-2 Trade Cas. (CCH) P64,165 (a) that portion of the Amended Complaint alleging violations of 42 U.S.C. §§ 1983, 1985 and 1986 are hereby DISMISSED with prejudice; (b) that portion of the Amended Complaint alleging violations of 15 U.S.C. §§ 1 and 2 presently meet the minimum jurisdictional requirements of the Sherman Act; and (c) the remaining objections raised by the defendants to the Amended Complaint are hereby DENIED without prejudice to renew at a later date upon proper motion. For internal use only SDNY_GM_00064888 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027713 EFTA_00175389 EFTA01299181 Page 15 314 F. Supp. 442, *; 1970 U.S. Dist. LEXIS 11296, ** Steven L. WALKER, a minor, by and through his next friend, natural guardian and legal guardian, his mother, Ann Walker Reisman, and Ann Walker Reisman, individually, Plaintiffs, v. Ralph J. GRANT and American Mutual Insurance Company of Boston, Defendants No. 68-1280-Civ-CA UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION 314 F. Supp. 442; 1970 U.S. Dist. LEXIS 11296 June 17, 1970 CORE TERMS: leg, backing, circle, driver, traffic, parked, lane, hazard, circumference, motorcycle, prosthesis, inner, approaching, traveled, issue of liability, parking spaces, loss of earnings, adjacent, angular, parking, artery, tibia JUDGES: ["' 1] Atkins, District Judge. OPINION BY: ATKINS OPINION r442J MEMORANDUM OPINION ATKINS, District Judge. What are the responsibilities of a driver backing his automobile, which had been parked at a 39 degree angle around the inner circumference of a circle, into a lane of traffic at night where the area is well lighted? The answer to this question resolves the issue of liability as between the defendant Ralph J. Grant, the owner and operator of an Oldsmobile sedan, and the plaintiff Steven r443J L. Walker, the owner and operator of a Honda motorcycle, involved in an accident which occurred on December 11, 1966 about 7:50 p.m. in Young's Circle at Hollywood, Florida. On the Circle in question the angular parking spaces were surrounded by three traffic lanes. The Honda was proceeding counterclockwise in the center of the lane nearest the parking area. Its speed was well within the maximum of the 25 mph. The lights on the motorcycle were burning. Defendant Grant testified that he turned his lights on and started his motor. He then looked back and to his left. There was a car parked, according to him, in the parking space immediately adjacent on the left. Directing his vision [" 2] thru the rear window, as well as to the left and over his right shoulder, Grant slowly backed into the lane which For internal use only SDNY_GM_00064889 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027714 EFTA_OOI 75390 EFTA01299182 Page 16 314 F. Supp. 442, *; 1970 U.S. Dist. LEXIS 11296, ** embraced the circle. His backing was cautious, he said. He had traveled the circle and parked on the inner circumference a number of times previously. Admittedly, Grant never saw or heard the approach of the Honda. There was credible evidence that the angular parking on the inner circumference of the circle created a special hazard. Particularly when a car was parked in an adjacent space, the vision of the "backing" driver was impaired. This was compounded by the circular direction of the roadway on which approaching traffic would operate. There was testimony proffered that the driver of the Honda should be able to see the backing vehicle before the latter could see the motorcycle. The duty of a backing driver on a State Road (as this was) is delineated by Florida Statutes, 1967, § 317.731, F.S.A. It required that such operation must not be done unless it can be made "with safety and without interfering with other traffic." In amplification, this driver must exercise every "means at his hand to protect life and property of others that may be in his path." Green ["3] v. Atlantic Co., (Fla. 1952), 61 So. 2d 185, 186. In fine, it is that operators duty to apprise the approaching vehicle of the contemplated entry and to see, and to yield to, any vehicle so near as to constitute a hazard as the backing automobile moves into the traveled way. Special hazards to vision only enhance that duty. At the close of this non jury trial, I resolved the issue of liability against the defendant Grant. Thus, there remains only the issue of damages sought by the injured plaintiff, who is now 21, and his mother, who was awarded his custody in earlier divorce proceedings. During a substantial part of the time since the injury, Steven has been confined in a state institution for convictions of possession of marihuana. Steven Walker sustained a compound commuted fracture of the left tibia and fibula. One of the two (there are normally three) arteries in the leg was severed. Repair procedures, complicated by the absence of the perineal artery, were abortive. Several separate hospital confinements totalling 129 days were required. Psychiatric treatment was necessary. Osteomalitis developed at the injury site. The leg is now one and one-half inches shorter than ["4] the right. Steven limps and complains that the leg hurts continuously. His treating physician and surgeon, Dr. Harry B. Orringer, found on April 17, 1970 a nonunion at the junction of the middle and lower thirds of the left tibia. The Court- appointed physician, Dr. Harry Beller, found that this leg is useless and must be amputated below the knee and a prosthesis supplied. This will result in a functional extremity for practical purposes. He assigned a 35% permanent partial disability of the body as a whole and 90% loss of the left leg. The total medical and related expenses to date are $18,128.40. The amputation and prosthesis will cost between $2500 and $3000. The injured plaintiff was not living with his mother at the time of the injury. He had moved out following an altercation with his step-father. From [*444] the time he was 14 there had been bitter disputes with his real father (from whom his mother was subsequently divorced) resulting in his exhibiting hostility toward that parent. He manifested personality problems and anti-social behavior before the subject accident. The plaintiff Steven Walker's greatest need, aside from the leg operation, is motivation. ["5] He has the mental capacity to develop skills in an occupation which would not require full physical capabilities in the left leg. He cannot perform heavy manual labor. For internal use only SDNY_GM_00064890 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0027715 EFTA_00 175391 EFTA01299183 Page 17 314 F. Supp. 442, *; 1970 U.S. Dist. LEXIS 11296, ** The Court has assumed that the plaintiff mother, Ann Walker Reisman, has paid or incurred obligation to pay the medical and related expense involved. Accordingly, she is awarded Twenty Thousand Dollars ($20,000.00) to effect that reimbursement and payment of damages for any nursing care, loss of companionship, and loss of earnings during Steven's minority. The plaintiff Steven L. Walker is awarded Eighty Thousand Dollars ($80,000.00) for all recoverable losses of any kind, including but not limited to (a) past and future loss of earnings, (b) mental anguish and pain and suffering, and (c) future medical, hospital and prosthesis expenses. For internal use only SDNY_GM_00064891 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0027716 EFTA_00 175392 EFTA01299184