695 F.2d 716 (3rd Cir. 1982), 81-2573, Myers v. American Dental Ass'n

Docket Nº:81-2573.
Citation:695 F.2d 716
Party Name:Donald R. MYERS v. AMERICAN DENTAL ASSOCIATION, V.I. Dental Association, Donald Pomeranz, Michael Kirshner, I. Lawrence Kerr, Joseph Capuccio, Asher G. Chavoor, Massachusetts Dental Society, and Lloyd Miller, American Dental Association and Dr. Joseph P. Cappuccio, Appellants.
Case Date:December 10, 1982
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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695 F.2d 716 (3rd Cir. 1982)

Donald R. MYERS

v.

AMERICAN DENTAL ASSOCIATION, V.I. Dental Association, Donald

Pomeranz, Michael Kirshner, I. Lawrence Kerr, Joseph

Capuccio, Asher G. Chavoor, Massachusetts Dental Society,

and Lloyd Miller, American Dental Association and Dr. Joseph

P. Cappuccio, Appellants.

No. 81-2573.

United States Court of Appeals, Third Circuit

December 10, 1982

Argued April 27, 1982.

Rehearing Denied Jan. 10, 1983.

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[Copyrighted Material Omitted]

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Peter M. Sfikas, Clay H. Phillips, Peterson, Ross, Schloerb & Seidel, Chicago, Ill., Richard G. Schneider, Dechert, Price & Rhoads, Philadelphia, Pa., Thomas K. Moore, Hoffman & Moore, P.C., Charlotte Amalie, St. Thomas, V.I., for American Dental Ass'n and Dr. Joseph P. Cappuccio, appellants.

Arnold M. Selke, Charlotte Amalie, St. Thomas, V.I., for Dr. Donald R. Myers.

Before GARTH, HIGGINBOTHAM and ROSENN, Circuit Judges.

OPINION

ROSENN, Circuit Judge.

This interlocutory appeal poses the question whether a dentist practicing in the Virgin Islands may properly bring suit in that jurisdiction alleging antitrust violations under the Sherman Act, 15 U.S.C. Sec. 1 et seq., and the Virgin Islands Anti-Monopoly Law, 11 V.I.C. Sec. 1501 et seq., against the American Dental Association (ADA) and certain nonresident individual defendants. The plaintiff, Dr. Donald R. Myers, challenges a rule promulgated by the ADA and subsequently implemented by the Virgin Islands Dental Association (VIDA) which requires a dentist who announces an area of specialization to limit his practice to that area. Defendants moved to dismiss the action on several grounds, including lack of personal jurisdiction over the individual defendants and improper venue as to all of the defendants. The district court granted the motion to dismiss as to several of the individual defendants but denied the motion as to ADA and Dr. Joseph P. Cappuccio, a past president of the ADA. The court certified for appeal under 28 U.S.C. Sec. 1292(b) the question of personal jurisdiction and venue and this court granted leave to appeal. We affirm the district court as to ADA but reverse in part as to Dr. Cappuccio.

I.

ADA, organized as an Illinois not-for-profit corporation, is a professional association

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of dentists. It has its principal place of business in Chicago and an office in Washington, D.C. ADA has no offices or employees in the Virgin Islands.

VIDA is a constituent society of the ADA. Although the record is sparse 1 as to the precise nature of the relationship between ADA and VIDA, and as to the activities engaged in by the two organizations, several points emerge. Defendants represent that VIDA is largely autonomous from its parent organization. Nonetheless, certain bonds link the two organizations. Under ADA's by-laws, members of a constituent society such as VIDA must also be dues paying members of ADA. By virtue of that relationship, VIDA was required to adopt the Principles of Ethics and Code of Professional Conduct (Code) promulgated by ADA and was prohibited from adopting any local rules inconsistent with the Code.

At the core of this case is dissatisfaction with one of the Code's provisions. Plaintiff, a dentist licensed in the Virgin Islands, Puerto Rico, and Massachusetts, objects to a provision of the Code which states:

A dentist who chooses to announce specialization ... shall limit the practice exclusively to the announced special area(s) of dental practice....

Complaining that practitioners in areas with small populations cannot develop an adequate practice if limited solely to their area of specialization, plaintiff seeks to hold himself out both as a general dentist and as an oral surgeon. He commenced the instant lawsuit in federal district court alleging violations of federal and Virgin Islands antitrust law and seeking injunctive relief, declaratory relief, and damages. Service was accomplished on the individual defendants while they were attending the annual meeting of VIDA in the Virgin Islands. Dr. Cappuccio and the other individual defendants were served under Fed.R.Civ.P. 4(d)(1) by the United States Marshal serving summons and complaint on each of them in the Virgin Islands. Service on ADA was effectuated by similarly serving Dr. Kerr in his capacity as the president of ADA under Fed.R.Civ.P. 4(d)(3). Defendants moved to dismiss, primarily on the ground of improper venue. The district court granted the motion to dismiss, which it treated as a motion for summary judgment, against the individual defendants Pomeranz, Kirshner, Kerr, and Chavoor; the court denied the motion to dismiss with respect to ADA and individual defendant Cappuccio.

II.

A.

On appeal, both Dr. Cappuccio and ADA challenge the district court's exercise of personal jurisdiction over them. An initial question posed only by ADA's jurisdictional challenge concerns whether ADA timely raised its defense of lack of personal jurisdiction before the district court. Our review of the pleadings before the district court leads us to conclude that ADA has waived its right to assert the defense.

In response to the complaint in this action defendants filed a pleading entitled "Motion to Dismiss for Improper Venue." The motion requests that the action be dismissed against the individual defendants on three grounds: improper venue, lack of (personal) jurisdiction, and failure to state an actionable claim. As to ADA, however, the motion requests dismissal only on the ground of improper venue. This division of defenses is mirrored in defendants' memorandum of law supporting their motion to dismiss.

In their next pleading to the district court, "Reply Memorandum in Support of Defendant American Dental Association's Motion to Dismiss for Improper Venue," defendants again fail to raise the question of lack of personal jurisdiction over ADA. And in their subsequent pleading, "Motion of Defendant American Dental Association to Strike Plaintiff's Opposition to Defendant's Motion and Accompanying Affidavits, or, in the Alternative, Response in Support

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of Defendant American Dental Association's Motion to Dismiss for Improper Venue," their last pleading prior to the district court's decision on their motion, defendants make only a passing reference to the issue of personal jurisdiction, a reference which appears to concede jurisdiction with respect to plaintiff's federal antitrust claim. 2

It is only in their motion to have the district court's decision certified for interlocutory appeal, "Motion of Defendants American Dental Association and Dr. Cappuccio to Amend Order Denying Motions to Dismiss in Order to Certify for Appeal Pursuant to 28 U.S.C. Sec. 1292(b)," that defendants for the first time raise as a defense lack of personal jurisdiction over ADA. 3 Plaintiffs did not object, however, to this untimely injection of the jurisdictional defense. The district court thereafter certified, and we granted leave to appeal, the questions of venue and personal jurisdiction. At oral argument we requested the parties to file supplemental briefs addressing whether ADA waived its right to raise the defense of lack of personal jurisdiction.

The starting point of our analysis is Fed.R.Civ.P. 12(g) & (h), quoted in the margin. 4 The aim of Rule 12 "is to afford an easy method for the presentation of defenses but at the same time prevent their use for purposes of delay." 2A J. Lucas & J. Moore, Moore's Federal Practice p 12.02, at 2225 (2d ed. 1982). To effectuate that goal, Rule 12(g) requires a party who raises a defense by motion prior to answer to raise all such possible defenses in a single motion. They cannot be raised in a second, pre-answer motion. Rule 12(h) imposes a higher sanction with respect to the failure to raise the specific defenses of lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process. If a party files a pre-answer motion but fails to raise one of the defenses enumerated above, the party waives the omitted defense and cannot subsequently raise it in his answer or otherwise. 2A J. Lucas & J. Moore, supra, p 12.23.

Defendants maintain that their second pleading, Motion to Strike Plaintiff's Opposition to Defendants' Motion and Accompanying Affidavits, or, In the Alternative, Response in Support of American Dental Association's Motion to Dismiss for Improper Venue, "expressly broadened [their] earlier motion to dismiss to include lack of personal jurisdiction over ADA." They argue that the second pleading should be treated as amending the initial motion to dismiss and conclude that Rule 12(g) was therefore not violated. Defendants point to several cases which they represent as permitting such amendments. Neifeld v. Steinberg, 438 F.2d 423 (3d Cir.1971); Sunrise Toyota, Ltd. v. Toyota Motor Co., 55 F.R.D. 519 (S.D.N.Y.1972); Roller Derby

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Associates v. Seltzer, 54 F.R.D. 556 (N.D.Ill.1972); Martin v. Lain Oil & Gas Co., 36 F.Supp. 252 (E.D.Ill.1941); Mutual Life Insurance Co. v. Egeline, 30 F.Supp. 738 (N.D.Cal.1939).

Defendants' contention regarding the state of the pleadings is erroneous. As noted above, defendants' second pleading does not raise the question of lack of personal jurisdiction over ADA with respect to plaintiff's federal antitrust claims. 5 Nor are the cases cited by defendants helpful. All of them involved situations where a pre-answer motion was amended or supplemented prior to argument before the district court. In the present case, in contrast, the defense of personal jurisdiction was not raised before the district court until after argument and after the court rendered its decision on the motion.

Defendants also note that plaintiff joined the issue of...

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