IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

AMERICAN ACADEMY OF ) 

ORTHOPAEDIC SURGEONS and ) 

AMERICAN ASSOCIATION OF ) 

ORTHOPAEDIC SURGEONS, ) 

 ) 

 Plaintiffs, ) 

 ) Case No. 12 C 3863 

 vs. ) 

 ) 

MARK J. CERCIELLO, ) 

 ) 

 Defendant. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 The American Academy of Orthopaedic Surgeons and the American Association 

of Orthopaedic Surgeons (collectively AAOS) have filed a complaint against Mark 

Cerciello seeking a declaratory judgment that AAOS legally suspended Cerciello’s 

membership in AAOS, properly adhered to its internal grievance procedure in doing so, 

and lawfully and accurately reported the suspension to its membership and to the 

National Practitioner Data Bank (NPDB). Cerciello has moved to dismiss the complaint 

based on improper venue, failure to join an indispensable party, and lack of subject 

matter jurisdiction. Alternatively, Cerciello has moved to transfer the case to the 

Eastern District of Pennsylvania. For the reasons stated below, the Court denies 

Cerciello’s motion to dismiss but stays part of this action due to ongoing administrative 

proceedings. 

 

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Background 

 AAOS is a non-profit, voluntary organization for orthopaedic surgeons based in 

Rosemont, Illinois. Cerciello is an orthopaedic surgeon from Pennsylvania who has 

been a member of AAOS for approximately forty years. 

 The dispute that led to this action arose from AAOS’s suspension of Cerciello’s 

membership. AAOS maintains a Professional Compliance Program in which it 

adjudicates its members’ grievances based on alleged violations of its Standards of 

Professionalism (SOPs). A provision of the SOPs governs orthopaedic expert witness 

testimony and applies to AAOS members when providing expert opinions. These 

standards require any AAOS expert witness testifying in a medical malpractice action to 

provide fair and impartial testimony and to evaluate the medical care given by the 

defendant against generally accepted standards. 

 In July 2010, Menachem Meller, another AAOS member who also resides in 

Pennsylvania, filed a grievance with the Professional Compliance Program alleging that 

Cerciello had violated AAOS’s SOPs on orthopaedic expert witness testimony when he 

submitted an expert report on behalf of a plaintiff who had sued Meller for medical 

malpractice in Pennsylvania. Pursuant to its bylaws, AAOS notified Cerciello that a 

grievance had been filed, provided him a copy of the grievance procedures, and 

advised him of his deadline to submit a response. Cerciello did not respond. The 

grievance process culminated in a merits hearing. Cerciello was notified of the hearing 

but did not attend. In September 2011, the AAOS found that Cerciello had violated 

certain SOPs regarding orthopaedic expert witness testimony and suspended him for 

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two years. AAOS subsequently reported Cerciello’s suspension to its membership and 

to the NPDB. 

 On April 19, 2012, a lawyer representing Cerciello sent AAOS a letter threatening 

litigation. The lawyer stated that AAOS had used a flawed process to suspend Cerciello 

and contended that AAOS or Meller had publicized the suspension. He demanded that 

AAOS rescind the suspension and notify everyone to whom it had reported the 

suspension that the report was erroneous. The attorney said that unless AAOS 

complied within ten days, he would file suit asserting claims for libel, slander, and false 

light. Compl., Ex. A. After responding, AAOS received a second letter from Cerciello’s 

attorney, dated May 2, 2012. The attorney referred to recent litigation involving Meller 

and AAOS and again demanded that AAOS take immediate steps to remove Cerciello’s 

name from the NPDB. Id., Ex. B. AAOS received the second letter on May 7, 2012. 

See id. (date stamp). AAOS filed this action eleven days later, on May 18, 2012. 

Discussion

1. Subject matter jurisdiction 

 Cerciello contends that AAOS is seeking an “advisory opinion” and that this 

action does not present a case or controversy within the meaning of the Declaratory 

Judgment Act, 28 U.S.C. § 2201. 

 Section 2201 permits a district court to issue a declaratory judgment “In a case of 

actual controversy within its jurisdiction.” 28 U.S.C. § 2201(a). The Supreme Court has 

ruled that this standard is met if “under all the circumstances, . . . there is a substantial 

controversy, between parties having adverse legal interests, of sufficient immediacy and 

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reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific 

Coal & Oil Co., 312 U.S. 270, 273 (1941). 

 AAOS alleges that it filed suit against Cerciello due to, among other things, his 

threats of litigation and his attacks on AAOS’s grievance procedures. Given this 

context, AAOS meets the section 2201 standard if it can show that Cerciello’s threat of 

litigation was “immediate and real, rather than merely speculative.” Hyatt Int’l Corp. v. 

Coco, 302 F.3d 707, 712 (7th Cir. 2002); see also Koch Refining v. Farmers Union 

Central Exchange, Inc., 831 F.2d 1339, 1353 (7th Cir. 1987). Apprehension of litigation 

alone does not make a threat immediate and real, but it can do so if the apprehension is 

caused by the defendant’s conduct. Int’l Harvester Co. v. Deere & Co., 623 F.2d 1207, 

1211 (7th Cir. 1980); Underwriters Labs. Inc. v. Hydrofilm L.P., No. 05 C 5509, 2006 WL 

2494748, at *2 (N.D. Ill. Aug. 23, 2006). 

 AAOS’s allegations are sufficient to show that there is an actual controversy 

within the meaning of section 2201. The letters from Cerciello’s attorney, in which he 

specifically said that he would file suit unless AAOS immediately rescinded Cerciello’s 

suspension and took other steps, amounted to an “immediate and real” threat of 

litigation, not a speculative one. See Hyatt Int’l Corp., 302 F.3d at 712. 

 When a case presents an actual controversy, a court nonetheless may exercise 

its discretion to decline to issue a declaratory judgment. Int’l Harvester Co., 623 F.2d 

1207, 1217 (7th Cir. 1980); see also Medical Assur. Co. v. Hellman, 610 F.3d 371, 378 

(7th Cir. 2010). “In the declaratory judgment context, the normal principle that federal 

courts should adjudicate claims within their jurisdiction yields to considerations of 

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practicality and wise judicial administration.” Wilton v. Seven Falls Co., 515 U.S. 277, 

288 (1995). 

 Cerciello argues that there is a pending parallel administrative proceeding that 

“includes all necessary parties and will resolve the issues.” Def.’s Opening Mem. at 8. 

The existence of an adequate parallel proceeding can be a factor in determining 

whether to issue a declaratory judgment. See Medical Assur. Co., 610 F.3d at 379. 

Cerciello has not shown, however, that the proceeding he references is either adequate 

or parallel. AAOS does not dispute Cerciello’s contention that there is a pending 

administrative proceeding, so the Court takes that contention as true for present 

purposes. The regulations governing the NPDB provide an administrative remedial 

procedure for a health care practitioner to “dispute the accuracy of information in the 

NPDB” after it has been reported. 45 C.F.R. § 60.16(a). To initiate a dispute, a health 

care practitioner like Cerciello must inform both the Secretary of Health and Human 

Services and the reporting entity (in this case AAOS) of his complaint regarding the 

report and the basis for the complaint. Id § 60.16(b). The reporting entity then has an 

opportunity to revise the reported information on its own. Id. § 60.16(c). If the reporting 

entity instead contests the practitioner’s complaint, the Secretary reviews written 

information submitted by both parties in support of their positions. Id. The Secretary 

then either issues a decision explaining why the report was accurate or corrects the 

disputed information and gives notice of the revisions to those who received a report 

containing the incorrect information. Id. 

 Cerciello says that he has initiated this remedial process with regard to AAOS’s 

report and that the matter is pending before the Secretary. He has provided no 

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information, however, regarding when he filed the proceeding, its current status, or even 

whether AAOS has been notified that Cerciello has challenged its report. That aside, 

however, Cerciello has given the Court no basis to believe that any proceeding before 

the Secretary will resolve a number of the key issues in the present case. On its face, 

the regulation governing the proceeding suggests that the Secretary considers only 

whether the report to the NPDB was accurate – i.e., whether it accurately reports some 

event that took place – and perhaps whether the event is properly reportable under the 

statute and regulations governing the NPDB. There is no basis to believe, however 

(and Cerciello has offered none), that the Secretary will adjudicate other significant 

matters at issue in this case, including the adequacy of AAOS’s procedures and the 

propriety of its grievance and suspension process. 

 Cerciello also suggests that AAOS’s claims run afoul of the doctrine of 

exhaustion of administrative remedies, given the claimed pendency of the dispute 

before the Secretary. Where, as in this case, Congress has not specifically required 

exhaustion in the applicable statute, sound judicial discretion governs. McCarthy v. 

Madigan, 503 U.S. 140, 144 (1992). Id. at 144. In determining whether an 

administrative procedure should be exhausted, courts “must balance the interests of the 

individual in retaining prompt access to a federal judicial forum against the 

countervailing institutional interests favoring exhaustion.” Id. at 146. 

 As the Court has just indicated, Cerciello has provided the Court no basis to 

believe that any decision by the Secretary regarding the accuracy of AAOS’s 

submission to the NPDB would put the present litigation to rest. It is also worth 

remembering that AAOS’s declaratory judgment claim is, for the most part, essentially 

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the flip side of Cerciello’s threatened lawsuit challenging the propriety of AAOS’s 

grievance process and the procedures it used in Cerciello’s case. There is no basis in 

law to believe that Cerciello would have had to exhaust the entirety of the Secretary’s 

administrative dispute resolution process before filing suit. That being the case, there is 

likewise no basis to impose administrative exhaustion as a prerequisite for AAOS’s 

declaratory judgment claim. 

2. Necessary party / primary jurisdiction 

 

 Cerciello also contends that the case should be dismissed because AAOS failed 

to join the Secretary as a necessary and indispensable party. Dismissal for failure to 

join a necessary party under Federal Rule of Civil Procedure 19 involves a two-step 

inquiry. The first question is whether the absent party is necessary, meaning that the 

party is one that should be joined if feasible. Davis Cos. v. Emerald Casino, Inc., 268 

F.3d 477, 481 (7th Cir. 2001). In making this determination, a court considers whether 

complete relief can be accorded among the current parties absent joinder; whether the 

absent party’s ability to protect its own interest will be impaired; and whether the 

existing parties will be subjected to the risk of inconsistent or multiple obligations absent 

joinder. Id.; see Fed. R. Civ. P. 19(a)(1). If the court concludes that the party should be 

joined but that it cannot be, it must decide whether the litigation can proceed in that 

party’s absence. Davis Cos., 268 F.3d at 481. 

 Cerciello has failed to show that the Secretary is a necessary party, given the 

claims as they now stand. The Secretary’s absence would not affect the Court’s ability 

to accord relief as between AAOS and Cerciello, nor does the Secretary have any 

interest of her own that she would be unable to protect if she is not joined. Because the 

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Secretary is not a necessary party within the meaning of Rule 19, the Court need not 

consider whether the litigation may properly proceed in her absence. 

 That said, Cerciello’s argument – or perhaps the interplay between his necessary 

party argument and his exhaustion of remedies argument – brings into play the doctrine 

of primary jurisdiction. This doctrine applies to a claim that is cognizable in the court, 

but whose resolution rests within the competence of an administrative agency. See 

United States v. Western Pacific R. Co., 352 U.S. 59, 63-64 (1956). This doctrine 

serves the interest of judicial economy by referring a dispute to an agency that knows 

more about it, thus obviating the need for a court to intervene. Ryan v. Chemlawn 

Corp., 935 F.2d 129, 131 (7th Cir. 1991). 

 Part of the relief that AAOS seeks in this case implicates directly the dispute that 

Cerciello contends is currently pending before the Secretary. Specifically, AAOS seeks 

a declaratory judgment that, among other things, “the AAOS was authorized to report 

Dr. Cerciello’s suspension to the National Practitioner Data Bank” and “the reports of Dr. 

Cerciello’s suspension that were made by the AAOS were accurate in all respects.” 

See Compl. at 21. It appears to the Court that the Secretary is likely to be called upon 

to decide the first of these points and, perhaps, part of the second (in particular, the part 

that concerns AAOS’s report to the NPDB). 

 There is no fixed formula for applying the doctrine of primary jurisdiction. 

Western Pacific R. Co., 352 U.S. at 64. Its application depends on the facts of the case. 

Gross Common Carrier, Inc. v. Baxter Healthcare Corp., 51 F.3d 703, 706 (7th Cir. 

1995). Where the issue in question is a matter of law, referral to an agency is typically 

unnecessary. See Baltimore & Ohio Chicago Terminal R.R. Co. v. Wisconsin Cent. 

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Ltd., 154 F.3d 404, 411 (7th Cir. 1998); Gross Common Carrier, 51 F.3d at 706 n. 3. 

When the issue is a question of fact, however, a court should stay the case to permit the 

appropriate administrative agency to decide it. Reiter v. Cooper, 507 U.S. 258, 268 

(1993). 

 The Court finds the doctrine of primary jurisdiction applies to the aspects of 

AAOS’s claims that the Secretary will be called upon to decide. Those issues concern 

the accuracy of AAOS’s report to the NPDB and whether AAOS properly reported the 

matter at all. The Secretary is specifically tasked with resolving issues of this sort, both 

of which involve factual questions. 

 That does not mean, however, that the Court will stay this action in its entirety. 

As indicated earlier, there is no basis to believe that the Secretary will consider, let 

alone decide, questions regarding the propriety of AAOS’s grievance process or the 

procedures it applied in Cerciello’s case. The Court therefore will stay this case only 

with respect to AAOS's request for a declaratory judgment regarding the accuracy of its 

report to the NPDB and whether the suspension was a reportable matter. See 

Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., No. 00 C 1164, 2003 WL 

259142, at *8 (N.D. Ill. Feb. 4, 2003) (staying case in part pending resolution of one 

issue before a federal agency but proceeding to dismiss other claims). 

3. Venue 

 

 Cerciello challenges AAOS’s choice of venue. On a motion to dismiss for 

improper venue, the plaintiff bears the burden of establishing that the venue is proper. 

Electroplated Metal Solutions, Inc. v. Am. Services, Inc., 500 F. Supp. 2d 974, 976 (N.D. 

Ill. 2007). In deciding the issue, the Court takes all of the allegations in the complaint as 

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true unless contradicted by affidavit. Promero, Inc. v. Mammen, No. 02 C 1191, 2002 

WL 31455970, at *7 (N.D. Ill. Nov. 1, 2002). The Court must also resolve all factual 

conflicts and draw all reasonable inferences in the plaintiff’s favor. Id. 

 Cerciello argues that venue is improper in this district because he lives in 

Pennsylvania. Cerciello notes that in alleging venue in the complaint, the AAOS cited a 

forum selection provision contained in its bylaws. Cerciello argues that the forum 

selection provision does not apply in this case. The forum selection provision states: 

[A]ny legal action challenging a decision of the Board of Directors under the 

Professional Compliance Program shall be filed under the jurisdiction and venue 

of the Circuit Court of the County of Cook, State of Illinois, or the U.S. District 

Court of the Northern District of Illinois. 

Compl. ¶ 16, Ex. D at 20. Cerciello argues that by its plain language, the forum 

selection clause applies only to those who have filed a legal action challenging a 

decision of AAOS’s board of directors. He contends that because he did not file suit, 

the forum selection provision does not apply. 

 The Court need not decide whether the forum selection clause establishes 

venue. As AAOS notes both in its complaint and its response to the motion to dismiss, 

completely apart from any provision in the bylaws, venue in a diversity action like this 

one is proper in “a judicial district in which a substantial part of the events or omissions 

giving rise to the claim occurred.” 28 U.S.C. § 1391(a)(2). 

 AAOS has alleged a number of events that occurred in this district that form the 

basis of this declaratory judgment action. Specifically, AAOS alleges that it 

administered the grievance procedure and conducted its hearings and deliberations 

regarding Cerciello’s suspension in Rosemont, Illinois. AAOS also alleges that it issued 

the reports of Cerciello’s suspension to its membership and the NPDB from Rosemont. 

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Cerciello does not dispute these allegations. Accordingly, AAOS has met its burden in 

establishing that a substantial part of the events giving rise to its declaratory judgment 

action occurred in this district. For this reason, the Court concludes that venue is proper 

here.

4. Transfer 

 Finally, Cerciello asks this Court to transfer the case to the Eastern District of 

Pennsylvania. For the convenience of the parties and witnesses, and in the interest of 

justice, this Court may “transfer any civil action to any other district or division where it 

might have been brought.” 28 U.S.C. § 1404(a); Coffey v. Van Dorn Iron Works, 796 

F.2d 217, 219 (7th Cir. 1986). 

 The first question is whether this action could have been brought in 

Pennsylvania. In a diversity suit, venue is proper in 

(1) a judicial district where any defendant resides, if all defendants reside 

in the same State, (2) a judicial district in which a substantial part of the 

events or omissions giving rise to the claim occurred, or where a 

substantial part of the property that is the subject of the action is situated, 

and (3) a judicial district in which any defendant is subject to personal 

jurisdiction at the time the action is commenced, if there is no district in 

which the action may otherwise be brought. 

28 U.S.C. § 1391(a). Because Cerciello, the only defendant, is a Pennsylvania 

resident, venue in the proposed transferee district would be proper under subsection 

(1). 

 AAOS contends, however, that the forum selection clause in its bylaws renders 

that otherwise proper venue improper. The Court disagrees. Even assuming that the 

forum selection clause in AAOS’s bylaws applies, it does not necessarily prevent 

transfer under section 1404(a). Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30 

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(1988) (holding that, when determining whether to transfer a case, courts must consider 

both the forum selection clause and “weigh in the balance the convenience of the 

witnesses and those public-interest factors of systemic integrity and fairness.”); Heller 

Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989) (“Despite the 

existence of a valid forum-selection clause, courts may still transfer a case under 

[section] 1404(a)”). 

 In assessing the convenience of each proposed forum, the Court considers: (1) 

the plaintiff’s choice of forum; (2) the location of material events; (3) the relative ease of 

access to sources of proof; (4) the convenience of the witnesses; and (5) the 

convenience of the parties. Bryant v. ITT Corp., 48 F. Supp. 2d 829, 832 (N.D. Ill. 

1999). Deference is given to a plaintiff’s chosen forum, and Cerciello bears the burden 

of showing that the Eastern District of Pennsylvania is “clearly more convenient” than 

the Northern District of Illinois. Heller Fin., 883 F.2d at 1293; see also In re Nat’l Presto 

Indus., Inc., 347 F.3d 662, 664-65 (7th Cir. 2003). 

 Cerciello argues that this case should be transferred because Meller, Meller’s 

attorney, and the witnesses from the malpractice litigation in which he gave his expert 

opinion all live in Pennsylvania. But this suit, at least in its current form, focuses on the 

AAOS’s grievance procedure and the propriety of its decision to suspend Cerciello. The 

witnesses relevant to those points appear to be largely, if not entirely, in Illinois. 

 Cerciello also seeks transfer on the ground that he is elderly and has health 

problems. But Cerciello’s allegation of poor health is not supported with an affidavit, nor 

does he describe what it is about his health that would make it “probably . . . impossible” 

for him to litigate in Illinois. Def.’s Opening Mem. at 3. This vague allegation does not 

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provide a sufficient basis for transferring the case to Pennsylvania. The Court also 

notes that there likely will be no need for Cerciello to travel to this state for purposes of 

the lawsuit unless and until it goes to trial. Though the Court does not rule out the 

possibility of transfer at a later point if Cerciello is able to make a sufficient showing 

under section 1404(a), at this point he has not met his burden of proving that the 

Eastern District of Pennsylvania is a clearly more convenient forum. 

Conclusion

 For the foregoing reasons, the Court denies defendant’s motion to dismiss or to 

transfer [docket no. 20] but stays this action in part, as described above, pending an 

administrative ruling by the Secretary of Health and Human Services on the points in 

question. The Court directs defendant to answer the complaint and file any 

counterclaims by no later than December 8, 2012. Both sides’ Rule 26(a)(1) 

disclosures are to be made by that same date. The case is set for a status hearing and 

scheduling conference by telephone on December 12, 2012 at 9:00 a.m. Plaintiff’s 

counsel is to get defendant’s counsel on the telephone and call chambers (312-435-

5618). Before the conference, counsel are to discuss and attempt to agree upon a 

discovery and pretrial schedule. 

 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: November 10, 2012 

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