Pfeiffer v. Intern. Acad. of Biomagnetic Medicine

• Decision Date: 15 September 1981
• Docket Number: Civ. A. No. 80-1061-CV-W-2.
• Citation: 521 F. Supp. 1331
• Parties: Harry L. PFEIFFER, Plaintiff, v. INTERNATIONAL ACADEMY OF BIOMAGNETIC MEDICINE, et al., Defendant.
• Court: U.S. District Court — Western District of Missouri

521 F. Supp. 1331

Harry L. PFEIFFER, Plaintiff, v. INTERNATIONAL ACADEMY OF BIOMAGNETIC MEDICINE, et al., Defendant.

Civ. A. No. 80-1061-CV-W-2.

United States District Court, W. D. Missouri, W. D.

September 15, 1981.

John C. McMahon, Malcolm A. Litman, Fishburn, Gold & Litman, Kansas City, Mo., for plaintiff Harry L. Pfeiffer.

Richard W. Jones, Hurt, Haverstock & Jones, Murray, Ky., and Robert Gingrich, Jr., Kodas, Reed, Gingrich & McFadden, P.C., Kansas City, Mo., for defendants Richard Broeringmeyer, Mary Broeringmeyer, American Biomagnetic Association, and International Academy of Biomagnetic Medicine.

R. Lawrence Ward, Steven D. Ruse, Shughart, Thomson & Kilroy, A Professional Corp., Kansas City, Mo., for defendant Robert S. Yowell.

ORDER TRANSFERRING ACTION TO UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY AND DENYING CERTAIN MOTIONS WITHOUT PREJUDICE

COLLINSON, Senior District Judge.

Plaintiff Harry L. Pfeiffer, a chiropractic physician and citizen of the State of Missouri with his principal place of business in Missouri, brings this multiple-count action against defendants International Academy of Biomagnetic Medicine ("Academy"), an unincorporated association in Kentucky; American Biomagnetic Association ("Association"), an unincorporated association in Kentucky; Richard Broeringmeyer and Mary Broeringmeyer, chiropractic physicians and citizens of the State of Kentucky with their principal place of business in Kentucky; and Robert S. Yowell, a chiropractic physician and citizen of the State of Virginia with his principal place of business in Virginia.

Plaintiff teaches seminars which include teachings in the science referred to as biomagnetics wherein plaintiff instructs various practitioners of the healing arts to use magnets to functionally balance patients suffering from an internal dysfunction. Plaintiff commonly teaches such seminars as an independent contractor, contracting with Sivad Bioresearch Company ("Sivad"), of Madison Heights, Michigan, and the various distributors thereof. Defendants also conduct such seminars and are in direct competition with plaintiff. Both plaintiff and defendants have taught such seminars in several states including Missouri.

Plaintiff's amended complaint, filed March 6, 1981, alleges that defendant Association wrote to Sivad, accusing plaintiff of plagiarism and threatening to sue Sivad and plaintiff for copyright infringement. In the fall of 1979, and on January 7, 1980, the owner of the allegedly infringed copyright, Biomagnetics International, Inc., through its president Mr. Walter Rawls, wrote to Sivad and to plaintiff accusing plaintiff of infringing its copyright. In January of 1980, however, Mr. Rawls again wrote plaintiff, after response by plaintiff to Rawls' original letter, stating that Rawls was mistaken and that plaintiff did not infringe Biomagnetics International, Inc.'s copyright. A copy of the letter was sent to defendant Richard Broeringmeyer at the same time the original was sent to plaintiff.

Plaintiff's amended complaint further alleges that about September 1980 each defendant singly or in combination caused to be written a magazine entitled BIOENERGETICS. BIOENERGETICS was sent to a substantial number of chiropractic physicians in the United States, including numerous such chiropractic physicians who enrolled to attend one or more seminars offered by plaintiff through contractual agreements with Sivad. The magazine, at page 13, publishes a copy of the January 7, 1980, letter from Mr. Rawls to plaintiff which accuses plaintiff of copyright infringement. Plaintiff's amended complaint alleges that defendants were fully aware that the charges made in the letter of January 7, 1980, had been rescinded by Mr. Rawls, especially in light of Rawls subsequent letter. On the page immediately preceding the reproduction of Rawls January 7, 1980, letter accusing plaintiff of copyright infringement, defendants allegedly caused a warning notice to be printed which was allegedly intended to relate to the letter and insinuate that plaintiff was guilty of copyright infringement. The warning notice stated:

WARNING NOTICE!

We have found doctors teaching our work who have not been authorized to do so. They have distorted the facts. If you take their class, ask them for research data and proof of results.

The nutrition company sponsoring these doctors causes us to question its integrity.

WE ASK YOUR COOPERATION — BETTER STILL PROTECT YOURSELF AND YOUR PATIENTS, DO NOT PATRONIZE THEM.

Plaintiff alleges that defendants Richard and Mary Broeringmeyer and defendant Yowell are editors of BIOENERGETICS and defendant Academy was publisher of the magazine. Plaintiff alleges that because of the foregoing acts, defendants have tortiously interfered with plaintiff's contractual relations (Count I); engaged in unfair competition (Count II); violated 15 U.S.C. § 45(a) of the Federal Trade Commission Act (Count III); engaged in a conspiracy and attempt to monopolize in violation of 15 U.S.C. §§ 1 and 2, respectively (Count IV); violated certain antitrust laws of the State of Missouri, Mo.Ann.Stat. § 416.031 (Count V); engaged in the misuse of a patent (Counts VI and VII); and libeled plaintiff (Count VIII).

The present matter pends upon defendants' various motions to dismiss, generally based on the assertions that this Court lacks in personam jurisdiction because defendants have not committed a "tortious act within the state" as required by Missouri's longarm statute, Mo.Ann.Stat. § 506.500; that venue under 28 U.S.C. § 1391(b) in the Western District of Missouri is improper because it is not the district in which "the claim arose"; and that certain counts of the amended complaint fail to state a cause of action. After review of defendants' motions, it is the Court's opinion that this Court has in personam jurisdiction over defendants because they are amenable to process under Missouri's long-arm statute, but that venue does not lie in the Western District of Missouri under 28 U.S.C. § 1391(b). The case therefore will be transferred under 28 U.S.C. § 1406(a) to the proper district, which in this Court's opinion is the Western District of Kentucky, and defendants' remaining motions will be denied at this time pending their renewal after transfer.

In Personam Jurisdiction And The Missouri Long-Arm Statute, Mo.Ann.Stat. § 506.500

Defendants contend this Court lacks in personam jurisdiction and that service of process was invalid because they have not committed a "tortious act within the state" as required by Mo.Ann.Stat. § 506.500. Rule 4(e) of the Federal Rules of Civil Procedure provides:

Whenever a statute or rule of court of the state in which the district court is held provides (1) for service of a summons or of a notice, ... upon a party not an inhabitant of or found within the state, ... service may in either case be made under the circumstances and in the manner prescribed in the statute or rule.

The Missouri statute providing for service of process "upon a party not an inhabitant of or found within the state" is Mo.Ann. Stat. § 506.500¹ and in the present action all parties agree that the applicability of Missouri's long-arm statute depends on whether the non-resident defendants have committed a "tortious act within the state" within the meaning of the statute.

Before a non-resident defendant may be subject to service of process from the forum state, the service of process must meet due process requirements.

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not afford "traditional notions of fair play and substantial justice."

International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940).

The Missouri Legislature, in enacting the long-arm statute in 1967, intended to enlarge the reach of service of process providing in personam jurisdiction to the broadest extent permissible under the Due Process Clause as interpreted by International Shoe. Wooldridge v. Beech Aircraft Corp., 479 F.Supp. 1041 (W.D.Mo.1979); State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889 (Mo. en banc 1970). In other words the Missouri Legislature intended to broaden the scope of the Missouri long-arm statute to the extent that non-resident defendants need have only the most minimal contacts with the state to be subject to service of process and in personam jurisdiction.

While the International Shoe minimum contacts test remains intact, the type of contacts which will satisfy the test have been restricted by the recent Supreme Court case of World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In World-Wide Volkswagen, the Court using the minimum contacts test of International Shoe, held that petitioners, a New York retail automobile dealer and its regional distributor whose region was limited to the three-state area of New York, New Jersey, and Connecticut, did not have sufficient minimum contacts to subject them to in personam jurisdiction in Oklahoma when plaintiffs were driving through Oklahoma in an automobile purchased from petitioners and were injured because of an alleged defect in the automobile. The Court reiterated "the Due Process Clause forbids the assertion of jurisdiction over a defendant `with which the state has no contacts, ties, or relations,'" id., at 313, 100 S.Ct. at 568, quoting, International Shoe Co. v. Washington, supra, 326 U.S. at 319, 66 S.Ct. at 159, and that the applicable test was whether plaintiff had "alleged a sufficient `relationship among the defendants, the forum, and the litigation,' Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977), to satisfy the...