American Medicorp, Inc. v. Humana, Inc.
Citation | 445 F. Supp. 573 |
Decision Date | 11 November 1977 |
Docket Number | Civ. A. No. 77-3392. |
Parties | AMERICAN MEDICORP, INC., Plaintiff, v. HUMANA, INC., Defendant. |
Court | U.S. District Court — Eastern District of Pennsylvania |
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Thomas A. Masterson, William J. Taylor, Morgan, Lewis & Bockius, Philadelphia, Pa., for plaintiff; Skadden, Arps, Slate, Meagher & Flom, New York City, of counsel.
Lee Calligaro, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for defendant; Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., of counsel.
A tender offer has detonated a series of actions that exploded first in the Southern District of New York, next in the Eastern District of Pennsylvania, and then in the Northern District of Illinois. The initial fall-out in this court has produced several critical motions, one of which raises major issues of first impression.
The chronology of events, which is seminal to the adjudication of this matter, follows:
All parties agreed that a tight time table was critical and therefore at our scheduling conference, which was held on October 12, 1977, we not only set the deadline for briefing and arguing the motions, but also the date for commencement of the hearing for preliminary injunction sought by Medicorp to stop the tender offer. Since these hearings were scheduled to begin on November 7, 1977, we entered our Order on October 28, 1977, so that the parties could properly prepare for that hearing, which in fact began on November 8, 1977. We noted in that Order that this opinion would follow. We believe that the novelty of some of the issues, as well as the fact that multiple actions are still pending in the various jurisdictions, including the transferee district, the Southern District of New York, call for a statement of the factors which prompted us to decide the motions as we did. Our reasons follow.
Plaintiff filed the original complaint on October 3, 1977. A Motion for Leave to File an Amended Complaint was filed three days later on October 6, 1977. In the interim, defendant had served its motions to dismiss and to transfer. Plaintiff now argues, by its supplemental brief filed on October 25, 1977, that its original motions to amend was erroneously filed by plaintiff's previous counsel. Hence, it has reversed its position, and now asserts that it may amend the complaint as of right because as of that date there was no answer filed, but only a motion to dismiss, which is not a responsive pleading within the meaning of F.R.C.P. 15(a). A recent Eastern District case directly supports this contention. In Drennon v. Philadelphia Hospital, 428 F.Supp. 809 (E.D.Pa.1977), our former colleague, Judge Higginbotham, now of the Court of Appeals for the Third Circuit, held that plaintiff did not need the permission of the court to submit an amended complaint filed in response to defendant's motion to dismiss. See also Kelly v. Delaware River Joint Comm'n, 187 F.2d 93, 94 (3rd Cir. 1951). Defendant has not disputed plaintiff's right to file an amended complaint without the permission of the court, (Letter of Defendant's Counsel, October 26, 1977). Accordingly, (notwithstanding the reams of paper, argument and time spent on this issue), we will deny that Motion for mootness, and rule on the remaining motions on the basis of the amended complaint.1
Defendant contends that its activities in this district are not sufficient to establish venue under either Section 12 of the Clayton Act, 15 U.S.C. § 22 (Section 12) or Section 1391(b) of the general venue statute, 28 U.S.C. § 1391(b). Section 12 reads as follows:
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.
Section 1391(b) provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
Plaintiff contended in its briefs that this "claim arose" in the Eastern District because plaintiff will be injured in its business in Bala Cynwyd, the location of its corporation headquarters, thus satisfying the venue requirements of 1391(b). Plaintiff also asserted that venue was proper under Section 12 because defendant has transacted business in this district through such acts as: (1) purchases of medical supplies, (2) advertisements in journals which circulate here, (3) recruitment of personnel, (4) attendance by its personnel at business meetings, and (5) preparation of the tender offer itself. At oral argument, plaintiff shifted its emphasis, and urged that defendant's compliance with the Pennsylvania Takeover Disclosure Law, 70 P.S. §§ 71-85, Supp.1977, including its appearance before the Pennsylvania Securities Commission (PSC), and all of its other efforts in this jurisdiction designed to achieve its goal of a successful tender offer were sufficient, in and of themselves, to establish venue. (Tr. at 75, 69-70). By resting on this prong of its contention,2 plaintiff asks us to decide a question not previously addressed, to our knowledge, by any other federal court in any reported opinion.
In place of the former highly restrictive definition of being "found" in a district, Section 12 substituted "the practical everyday business or commercial concept of doing business or...
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...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 attendanceat industry meetings are clearly de minimus contacts, ......
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...the court can grant, regardless of whether it asks for the proper relief. (citation omitted). See also American Medicorp, Inc. v. Humana, Inc., 445 F.Supp. 573, 587 (E.D.Pa.1977) ("Notice pleading necessarily requires that a complaint be liberally construed."); Kleinschmidt v. Universal Sea......
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