The opinion of the court was delivered by: William T. Hart, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff charges that the defendants have engaged in a
conspiracy — a group boycott — in restraint of trade in violation
of section one of the Sherman Antitrust Act, 15 U.S.C. § 1 (Count
I) and national origin employment discrimination contrary to
section 601 of Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d (Count II).
This matter is before the Court on the defendants' motion to
dismiss the complaint for failure to state a claim upon which
relief can be granted, Fed.R.Civ.P. 12(b)(6), and for lack of
subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). The parties
have supported and responded to the motions by bringing before
the Court matters outside the pleadings. Accordingly, the motions
to dismiss will be treated as if for summary judgment and
disposed of as provided for in Fed.R.Civ.P. 56. In compliance
with Fed.R.Civ.P. 12, all parties have been given reasonable
opportunity to present all pertinent matters.
Plaintiff Slobodan Vuciecevic is of Serbian-Yugoslavian
national origin and is a permanent resident of the United States.
He is a licensed physician and maintains a medical practice in
and around Berwyn, Illinois specializing in orthopedics and
Defendant MacNeal Memorial Hospital ("MacNeal") is a public
health care facility located in Cook County, Illinois. Defendant
Berwyn Orthopedic Surgeons, Ltd. is a professional corporation
engaged in the medical practice of orthopedics and orthopedic
surgery. The officers and shareholders of the corporation include
defendants Robert Kaminski, Tariq Iftikhar and Asok Ray. The
remaining individual defendants are members of the administrative
and medical staff and the board of directors of MacNeal.
Beginning in September of 1980, plaintiff inquired of
defendants Kaminski and Ray concerning the possibility of his
practicing orthopedic surgery in Berwyn with the expectation that
he would be granted medical staff privileges by MacNeal. Kaminski
was chairman of MacNeal's division of surgery and Ray was on the
medical staff specializing in orthopedic surgery. According to
plaintiff, Kaminski and Ray told him that they did not want to
lose any patients to him in the event that he established a
medical practice in Berwyn and they advised him not to seek staff
Plaintiff alleges that he did establish a medical practice in
Berwyn in February, 1981 and applied for membership on MacNeal's
medical staff. Subsequently, he appeared before a committee of
the division of surgery chaired by Kaminski. The committee
recommended that plaintiff be denied membership on the medical
staff for reasons allegedly unrelated to his medical
qualifications. Thereafter plaintiff appeared before MacNeal's
credentials' committee. Again without stating any reason and
allegedly without cause, the credentials' committee voted to deny
plaintiff's application for membership on the staff.
Plaintiff's application was next presented to the full
medical/dental staff. In September, 1981 the full staff, by a
vote of 60-45, approved his application for staff privileges. Its
recommendation was conveyed to the hospital's board of directors.
In November, 1981 plaintiff was notified that the board had
rejected his application for staff membership. In January, 1982
plaintiff, at his request, appeared before a committee of the
board of directors. In March, 1982 he was notified by letter that
the board of directors had reviewed the report of the interview
committee and would take no further action on the application.
In Count I, plaintiff alleges that his denial of staff
privileges at MacNeal evidences a concerted refusal to deal and
a group boycott, in violation of section one of the Sherman Act.
The result of the denial, he says, prevents him from competing
effectively in his profession*fn1 and impermissibly restrains
interstate commerce throughout Cook County, Illinois and
northwest Indiana, southern and southwest Wisconsin.
Plaintiff's allegation of an unlawful effect on interstate
commerce proceeds from his contention that the defendants are
directly involved in the delivery of medical/surgical and
hospital services in Cook County, Illinois where MacNeal is
located. These activities, in turn, allegedly have had a
continuous and substantial effect on interstate commerce in that
numerous nonresidents of Illinois come into Illinois to purchase
medical services from plaintiff and defendants; that the purchase
of services affects the financing of materials and equipment from
outside Illinois which are delivered for use in Illinois; and
that delivery of materials and the purchase of service in
Illinois has caused other materials to flow between Illinois and