Kremen v. American Registry For Internet Numbers Ltd.

Filing 31

Kremen v. American Registry For Internet Numbers Ltd.

Doc. 31

Case 5:06-cv-02554-JW

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MANATT, PHELPS & PHILLIPS, LLP STEPHEN M. RYAN (DC Bar No. 359099) ([e-mail]) 700 12th Street, N.W., Suite 1100 Washington, DC 20005-4075 Telephone: [phone] Facsimile: [phone] MANATT, PHELPS & PHILLIPS, LLP CHAD S. HUMMEL (CA Bar No. 139055) ([e-mail]) JACK S. YEH (CA Bar No. 174286) ([e-mail]) 11355 W. Olympic Boulevard Los Angeles, CA 90064 Telephone: [phone] Facsimile: [phone] MANATT, PHELPS & PHILLIPS, LLP CHRISTOPHER L. WANGER (CA Bar No. 164751) ([e-mail]) JOHN P. KERN (CA Bar No. 206001) ([e-mail]) 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant AMERICAN REGISTRY FOR INTERNET NUMBERS, LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GARY KREMEN, an individual, Plaintiff, vs. AMERICAN REGISTRY FOR INTERNET NUMBERS, LTD., a Virginia corporation, Defendant. Case No. C 06-2554 JW [Related to Case No. C 98-20718 JW] (Assigned to the Honorable James Ware) REPLY MEMORANDUM OF AMERICAN REGISTRY FOR INTERNET NUMBERS, LTD. IN SUPPORT OF MOTION TO DISMISS OR, ALTERNATIVELY, FOR STAY Hearing Date: October 23, 2006 Time: 9:00 a.m. Courtroom: 8, 4th Floor Action Filed: TRIAL DATE: April 12, 2006 NONE SET

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TABLE OF CONTENTS Page I. II. REPLY INTRODUCTION................................................................................................. 1 LEGAL ANALYSIS........................................................................................................... 1 A. Plaintiff's Claims Are Time-Barred........................................................................ 1 1. There Is No New and Independent Act Alleged that Would Reset the Statute of Limitations for Kremen's Antitrust Claims Under The Sherman Act and Cartwright Act................................................................ 2 2. The "Continuing" Nature of ARIN's Alleged Torts and Purported "Duties" Do Not Toll, Suspend or Otherwise Postpone the Applicable Statutes of Limitations for Kremen's Conversion, Fiduciary Duty and Unfair Competition Claims Which Accrued in 2001............................................................................................................. 4 a. Kremen's State Law Claims Accrue Upon the Act That Inflicts the Alleged Harm................................................................ 4 b. A Continuing Act Does Not Extend the Statute of Limitations ...................................................................................... 5 B. Each And Every Cause Of Action Fails To State Any Claim Upon Which Relief Can Be Granted ............................................................................................ 8 1. Plaintiff's Antitrust Claims Must Be Dismissed......................................... 8 (1) Kremen's Antitrust Claims Are Premised Upon ARIN's Denial of His Claim to the IP Resources and the Ensuing Negotiations Between the Parties, and Are Clearly Based on ARIN's Interest in the Underlying Litigation.......................................................... 8 (2) Kremen's Antitrust Claims Are Derived From And Are Dependent Upon the Court's September 2001 Court Order ....................................................................... 10 b. Kremen Has Not Alleged A Viable Section 1 Claim.................... 11 (1) There Is No Cognizable Combination or Conspiracy ....... 11 (a) ARIN cannot conspire with its President as a matter of law ......................................................... 11 (b) Kremen has failed to plead any concerted conduct by any other individuals or entities, and has certainly failed to plead such allegations with the requisite specificity ............... 12 (c) Kremen cannot and does not refute the procompetitive effects of the allocation policies........ 12 (2) Kremen Fails To Allege An Unreasonable Restraint On Trade That Harms Competition .................................. 14 (a) Kremen alleges only harm to himself ................... 14

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TABLE OF CONTENTS (continued) Page Kremen's new argument that ARIN's application of its standard terms and conditions is "inconsistent, arbitrary and biased" is not only flatly contradicted by the allegations in the Complaint, but even if it were implied, no facts to support it are alleged ................................................................... 15 (3) Kremen Has Failed to Plead Cognizable Antitrust Injury................................................................................. 16 c. Kremen Has Failed To Allege A Viable Section 2 Claim ............ 17 2. Kremen's State Claims Of Conversion, Breach Of Fiduciary Duty And Unfair Business Must Be Dismissed Because They Fail To State Any Claim Upon Which Relief Can Be Granted ............................. 19 a. Plaintiff's Conversion Claim Should Be Dismissed Because It Fails To State Any Claim Upon Which Relief Can Be Granted.......................................................................................... 19 b. Plaintiff's Breach Of Fiduciary Duty Claim Should Be Dismissed Because It Fails To State Any Claim Upon Which Relief Can Be Granted....................................................... 23 c. Plaintiff's California Unfair Competition Claim Should Be Dismissed Because It Fails To State Any Claim Upon Which Relief Can Be Granted....................................................... 24 C. This Lawsuit Should Be Stayed Pending Disposition Of ARIN's Application To Modify Or Clarify The September 2001 Order ........................... 24 CONCLUSION ................................................................................................................. 25 (b)

III.

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TABLE OF AUTHORITIES Page CASES Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1998) ................................................................................................................ 14 American Adver. Management, Inc. v. General Tel. Co., 190 F.3d 1051 (9th Cir. 1999)................................................................................................. 14 American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75 F.3d 1401 (9th Cir. 1996)................................................................................................... 19 American Council of Certified Podiatric Physicians & Surgeons v. American Bd. of Podiatric Surgery, 185 F.3d 606 (6th Cir. 1999).................................................................................................. 12 Armstrong v. Manzo, 380 U.S. 545 (1965) ................................................................................................................ 22 Bennett v. Hibernia Bank, 47 Cal. 2d 540 (1956) ............................................................................................................... 6 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994)..................................................................................................... 18 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996)................................................................................................. 1, 18 Chavez v. Carter, 256 C.A. 2d 577 (1967) ............................................................................................................ 7 City of Atascadero v. Merrill Lynch, 68 Cal. App. 4th 445 (1998) ................................................................................................... 23 Columbia Pictures Indus., Inc. v. Professional Real Estate Inv., Inc., 944 F.2d 1525 (9th Cir. 1991)................................................................................................... 8 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) ................................................................................................................ 12 Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal. 3d 842 (1971) ................................................................................................................. 3 Coy v. E.F. Hutton & Co., 44 Cal. App. 2d 386 (1941)....................................................................................................... 4 de Vries v. Brumback, 53 Cal. 2d 643 (1960) ........................................................................................................... 5, 6 Fazio v. Hayhurst, 247 C.A. 2d 200 (1966) ............................................................................................................ 7 First Nat'l Bank v. Thompson, 60 Cal. App. 2d 79 (1943)......................................................................................................... 4 Fisher v. City of Berkeley, 475 U.S. 260 (1986) ................................................................................................................ 11 Forcier v. Microsoft Corp., 123 F. Supp. 2d 520 (N.D. Cal. 2000) ...................................................................................... 5 iii
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TABLE OF AUTHORITIES (continued) Page G.H.I.I. v. MTS, Inc., 147 Cal. App. 3d 256 (1983)........................................................................ 3 Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)................................................................................................. 18 Glenn Holly Entertainment, Inc. v. Tektronix, Inc., 343 F.3d 1000 (9th Cir. 2003)................................................................................................. 16 Gregory v. Fort Bridger Rendezvous Ass'n, 448 F.3d 1195 (10th Cir. 2006)............................................................................................... 13 Harshbarger v. Philip Morris, Inc., 2003 WL 23342396, *1, *6 (N.D. Cal. April 1, 2003) ............................................................. 4 Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047 (9th Cir. 2005)................................................................................................. 22 Holden v. Hagopian, 978 F.2d 1115 (9th Cir. 1992)................................................................................................. 18 Imperial Point Colonnades Condominium, Inc. v. Manguarian, (5th Cir. 1977), 549 F.2d 1029, Cert. denied 434 U.S. 859, 98 S.Ct. 185, 54 L.Ed.2d 132")............................................................................................................................ 3 In re Nine West Shoes Antitrust Litig., 80 F. Supp. 181 (S.D.N.Y. 2000)............................................................................................ 12 Intermedics, Inc. v. Ventritex, Inc., 822 F. Supp. 634 (1993)............................................................................................................ 4 Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103 (1988) ............................................................................................................. 5 Kingray, Inc. v. National Basketball Ass'n, 188 F. Supp. 2d 1177 (S.D. Cal. 2002) ............................................................................ 15, 16 Kremen v. Cohen, U.S.D.C. N.D. Cal. Case No. C98 20718 JW .......................................... passim Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857 (9th Cir. 1979)................................................................................................... 24 Liberty Lake Inv., Inc. v. Magnuson, 12 F.3d 155 (9th Cir. 1993)....................................................................................................... 9 Llewellyn v. Crothers, 765 F.2d 769 (9th Cir. 1985)................................................................................................... 12 Martin v. Wilks, 490 U.S. 755 (1989) ................................................................................................................ 22 Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ................................................................................................................ 12 Naftzger v. American Numismatic Soc'y, 42 Cal. App. 4th 421 (1996) ................................................................................................. 4, 7 Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176 (1971) .................................................................................................................. 7 Norgart v. Upjohn Co., 21 Cal. 4th 383 (1999) .............................................................................................................. 5
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TABLE OF AUTHORITIES (continued) Page Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234 (9th Cir. 1987)................................................................................................. 2, 3 Saxer v. Philip Morris, Inc., 54 Cal. App. 3d 7 (1975)........................................................................................................... 3 Snapp & Assocs Ins. Servs, Inc. v. Robertson, 96 Cal. App. 4th 884 (2002) ..................................................................................................... 5 Sosa v. DIRECT TV, Inc., 437 F.3d 923 (9th Cir. 2006)..................................................................................................... 8 Strasberg v. Odyssey Group, Inc., 51 Cal. App. 4th 906 (1996) ................................................................................................. 4, 6 Tanaka v. University of So. Cal., 252 F.3d 1059 (9th Cir. 2001)..................................................................................... 15, 18, 19 TV Communications Network v. Turner Network Television, Inc., 964 F.2d 1022 (1992)........................................................................................................ 15, 17 U.S. v. Rosedin Elec., Inc., 122 F.R.D. 230 (N.D. Cal. 1987) .............................................................................................. 2 United States v. Grinnell Corp., 384 U.S. 563 (1966) ................................................................................................................ 17 Viazis v. American Ass'n of Orthodontists, 314 F.3d 758 (5th Cir. 2002)................................................................................................... 17 Woodbridge Plastics, Inc. v. Borden, Inc., 473 F. Supp. 218 (S.D.N.Y.), aff'd, 614 F.2d 1293 (2d Cir. 1979) .......................................... 3 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971) .................................................................................................................. 3 STATUTES 15 U.S.C. § 1 ............................................................................................................................. 3, 11 15 U.S.C. § 15b ............................................................................................................................... 1 Business & Professions Code § 16750.1 ........................................................................................ 2 Business & Professions Code § 17200 ....................................................................................... 2, 5 Business & Professions Code § 17208 ....................................................................................... 2, 5 Civil Code § 3426 ........................................................................................................................... 2 Civil Procedure Code § 338(c)........................................................................................................ 2 OTHER AUTHORITIES 3 Witkin, Cal. Proc. 4th (1997) ....................................................................................................... 5 Black's Law Dictionary, Eighth Ed. 1114 (Bryan A. Garner, et al., eds., West 2004) ................................................................. 9, 20

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TABLE OF AUTHORITIES (continued) Page RULES Fed R. Evid. 408 ....................................................................................................................... 9, 10 Fed R. Civ. P. 12 ............................................................................................................................. 1

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I.

REPLY INTRODUCTION

Kremen's Opposition does not dispute ARIN's statements of law. Neither does it meaningfully address ARIN's arguments demonstrating the legal insufficiency of Kremen's claims. Instead, Kremen incorrectly accuses ARIN of deliberately misconstruing the Complaint but then liberally seeks to alter his key allegations in material ways in an attempt to avoid dismissal. Because this Court must consider the claims as pleaded (Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996)), Kremen's efforts to rewrite his claims and change the theories of recovery cannot overcome this Rule 12 Motion. Moreover, as detailed below, none of Kremen's efforts in this regard change the fundamental problems with his legal theories: his claims are time barred, ARIN's conduct in seeking to negotiate a settlement concerning the disputed Court Order is immune from antitrust scrutiny, there is no "combination or conspiracy" that unreasonably restrains trade, ARIN has not acquired or maintained an "illegal monopoly" through exclusionary conduct, and there simply is no harm to competition or other tortious conduct. ARIN's Opposition in fact reveals this case for what it is: an effort to misuse the Court system to extract unjustified exemptions from the rules that universally govern the allocation of IP resources.1 II. LEGAL ANALYSIS

ARIN's Motion to Dismiss should be granted in its entirety and the Complaint dismissed with prejudice for the reasons set forth below. A. Plaintiff's Claims Are Time-Barred. Kremen concedes (as he must) that the maximum limitations period applicable to the claims asserted in the Complaint is four years.2 In order to avoid the applicable limitations In the alternative to outright dismissal with prejudice, ARIN respectfully requests that this Court stay the present lawsuit pending disposition of ARIN's motion to modify or clarify this Court's September 17, 2001 Order issued by the Honorable James Ware in the related case of Kremen v. Cohen, U.S. District Court for the Northern District of California, Case No. C98 20718 JW (which motion is concurrently pending in that action), an order upon which this lawsuit is fundamentally based. 2 Indeed, Plaintiff's federal antitrust causes of action under the Sherman Act (Claims 1-4; Complaint, ¶¶ 84-114) are subject to a four-year statute of limitations. See 15 U.S.C. § 15b ("Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever
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periods, Kremen contends that all of the limitations periods were extended under a fatally flawed "continuing tort" theory. While a "continuing tort" theory is viable under federal law under certain circumstances with respect to Kremen's antitrust claims, there "must be a new and independent act that is not merely a reaffirmation of a previous act" to trigger this extension doctrine. Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987). Kremen's argument fails for this reason. There simply is no new or independent act alleged in the Complaint that is applicable in this case. While Kremen maintains that his state law claims should survive under the same "continuous" theory applicable to federal antitrust cases (Opp. at 6:6-6:9), no such theory exists under California law. Contrary to Kremen's contentions, he cannot revive or toll any of his claims, as they are expressly time-barred. The applicable statutes of limitations began to run when the "harm" allegedly caused by ARIN's conduct accrued ­ when the 2001 Order was entered ­ nearly five years ago. Kremen delayed in filing the present lawsuit until after the maximum limitations period of four years expired in November 2005. 1. There Is No New and Independent Act Alleged that Would Reset the Statute of Limitations for Kremen's Antitrust Claims Under The Sherman Act and Cartwright Act. Kremen contends that his federal and state antitrust claims are not time-barred purportedly because ARIN engaged in a "continuing" antitrust violation (resetting the statute of limitations) each time Kremen repeated his demand to ARIN to transfer the IP Resources at issue in this litigation.3 (Opp. at 2-4, citing Woodbridge Plastics, Inc. v. Borden, Inc., 473 F. Supp. barred unless commenced within four years after the cause of action accrued"). Likewise, Plaintiff's California antitrust causes of action under the Cartwright Act are subject to a four-year statute of limitations (Claim 5; Complaint, ¶¶ 115-121), per Cal. Bus. & Prof. Code §16750.1, U.S. v. Rosedin Elec., Inc., 122 F.R.D. 230, 248 (N.D. Cal. 1987), as is Plaintiff's statutory Unfair Competition claim under Bus. & Prof. Code § 17200, et seq. (Claim 8; Complaint, ¶¶ 141-147.) Cal. Bus. & Prof. Code § 17208 ("any cause of action pursuant to this chapter shall be commenced within four years after the cause of action has accrued"). Plaintiff's Conversion claim (Claim 6; Complaint, ¶¶ 122-131) is subject to an even shorter three-year statute of limitations, Cal. Civ. Proc. Code § 338(c), as is Plaintiff's Breach of Fiduciary Duty claim (Claim 7; Complaint, ¶¶ 132-140). Cal. Civ. Code § 3426. 3 Specifically, Kremen asserts a "continuing" antitrust violation based upon: (1) the parties' efforts to negotiate a resolution of this dispute from 2003 to 2004; (2) the continuing withholding of the IP Resources; (3) Kremen's continuing inability to derive revenues from the IP Resources;
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218, 221 (S.D.N.Y.), aff'd, 614 F.2d 1293 (2d Cir. 1979)). Ninth Circuit case law does not support this argument. The statute of limitations for federal antitrust claims begins to run when the defendant commits the act that inflicts the alleged injury to the plaintiff and is not capable of being reset unless there is "a new and independent act that is not merely a reaffirmation of a previous act." Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir. 1987).4 The same is true with respect to California antitrust law claims under the Cartwright Act. See, e.g., G.H.I.I. v. MTS, Inc., 147 Cal. App. 3d 256, 265 (1983) ("The Cartwright Act is patterned after the federal Sherman Anti-Trust Act (15 U.S.C., § 1 et seq.) and decisions under the latter act are applicable to the former" (citing Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal. 3d 842, 852 (1971)); Saxer v. Philip Morris, Inc., 54 Cal. App. 3d 7, 19 (1975))). As such, a California antitrust claim accrues when the defendant first participates in the act that inflicts the alleged injury on the plaintiff. Pace, 813 F.2d at 238. Here, Kremen contends that the applicable statutes of limitations were reset each time ARIN refused each of Kremen's demands for transfer of IP Resources that had been allocated to Cohen. However, ARIN's reiterated refusals to transfer the IP Resources (unless Kremen agreed to the terms and conditions for allocation and use that are applicable to other registrants) are clearly not new independent acts. To the extent that Kremen contends there was a subsequent transfer of a particular block of IP Resources to a third party (LACNIC), Kremen's

and (4) ARIN's continuing use of its registration agreement. (Opp. at 2-4.) 4 Kremen's federal antitrust claims are time-barred even under the New York District Court case law Kremen cites, Woodbridge Plastics, Inc. v. Borden, Inc., 473 F. Supp. 218 (S.D.N.Y.), aff'd, 614 F.2d 1293 (2d Cir. 1979). According to Woodbridge, a federal antitrust claim under the Sherman Act accrues at the distinct moment when a defendant commits an act that injures a plaintiff's business, and, at that moment, the statue of limitations begin to run. Woodbridge Plastics, 473 F. Supp. at 221 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971) ("Generally, a cause of action accrues and the statue begins to run when a defendant commits an act that injures a plaintiff's business"). All subsequent events causing harm to the injured party stemming from the same initial injurious act do not extend the statue of limitations. Id. ("where all damages complained of necessarily result from a pre-limitations act by defendant, no new cause of action accrues for any subsequent acts...because those acts do not injure plaintiff.' Imperial Point Colonnades Condominium, Inc. v. Manguarian, (5th Cir. 1977), 549 F.2d 1029, 1035, Cert. denied 434 U.S. 859, 98 S.Ct. 185, 54 L.Ed.2d 132").
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reliance on such a claim is misplaced because it is not pleaded and improperly assumes that Kremen had unfettered "ownership" rights to the IP Resources in the first place. Accordingly, Kremen's antitrust claims are time-barred as a matter of law. 2. The "Continuing" Nature of ARIN's Alleged Torts and Purported "Duties" Do Not Toll, Suspend or Otherwise Postpone the Applicable Statutes of Limitations for Kremen's Conversion, Fiduciary Duty and Unfair Competition Claims Which Accrued in 2001. a. Kremen's State Law Claims Accrue Upon the Act That Inflicts the Alleged Harm.

Kremen's California state law claims are also time-barred because the claims accrued over four years ago. It is well-settled that the three-year statute of limitations for conversion is triggered by the act of wrongfully taking property. Strasberg v. Odyssey Group, Inc., 51 Cal. App. 4th 906, 915-16 (1996); see also Coy v. E.F. Hutton & Co., 44 Cal. App. 2d 386, 390 (1941) (the plaintiff's cause of action accrued the day of the alleged conversion of his stock and suit against stockbroker filed more than four years later was barred by statute of limitations); First Nat'l Bank v. Thompson, 60 Cal. App. 2d 79, 83 (1943) ((citing Coy) suit to recover shovel from person who purchased it from one who had not satisfied the terms of his conditional sales contract barred because filed more than three years after conversion). "In practical terms, a conversion can only occur after an owner has entrusted his property to another. Thereafter, if the possessor acts in a manner inconsistent with the owner's interests, the owner's cause of action for conversion accrues at that time." Naftzger v. American Numismatic Soc'y, 42 Cal. App. 4th 421, 428-29 (1996) (theft of antique coins by substituting inferior ones; limitations period did not commence until discovery both of theft and of possessor's identity) (citation omitted). Likewise, it is also well-settled that "[t]he statute of limitations for [breach of fiduciary duty] claims begins to run when the cause of action accrues[,]" Intermedics, Inc. v. Ventritex, Inc., 822 F. Supp. 634, 640 (1993), and that "[g]enerally, an action accrues either when the wrongful act is done, or when the wrongful result occurs, whichever is later." Harshbarger v. Philip Morris, Inc., 2003 WL 23342396, *1, *6 (N.D. Cal. April 1, 2003) (citing Norgart v. 4
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Upjohn Co., 21 Cal. 4th 383, 397 (1999)); see also Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1109 (1988). Not surprisingly, the four-year statute of limitations for a California Unfair Competition claim under Business and Professions Code Section 17200, et seq., accrues when the defendant's conduct occurs, not when the plaintiff learns about the conduct. Cal. Bus. & Prof. Code § 17208; Snapp & Assocs Ins. Servs, Inc. v. Robertson, 96 Cal. App. 4th 884, 891 (2002) ("`discovery rule,' which delays accrual of certain causes of action until the plaintiff has actual or constructive knowledge of facts giving rise to the claim, does not apply [to causes of action under Bus. & Prof. Code § 17200]"). When allegations regarding the defendant's conduct span a period of time, the California Unfair Competition cause of action accrues at the time of the initial conduct. Snapp, 96 Cal. App. 4th at 892 (Bus. & Prof. Code § 17200 cause of action accrued at the time of defendant's alleged initial wrongdoing); see also Forcier v. Microsoft Corp., 123 F. Supp. 2d 520, 527 (N.D. Cal. 2000) (Bus. & Prof. Code § 17200 cause of action accrued when complaint alleged defendant initially misappropriated trade secrets). b. A Continuing Act Does Not Extend the Statute of Limitations.

Kremen contends that the conversion claim is not time-barred purportedly because the California Supreme Court held in de Vries v. Brumback, 53 Cal. 2d 643, 647 (1960), that conversion "is a continuing tort as long as the person entitled to the use and possession of his property is deprived thereof..." (Opp. at 4:19-23.) Premised upon this legal platitude, Kremen contends that it "may file an action at any time in the course of the continuing tort, or within the applicable statute of limitation." (Opp. at 4:21-25, citing 3 Witkin, Cal. Proc. 4th (1997), Actions § 552.) Similarly, with respect to the Breach of Fiduciary Duty claim, Kremen contends that ARIN owed a "continuing duty" to Kremen (similar to that of a doctor or lawyer) and that "the statute does not run during the relationship...but instead commences when the patient or client suffers damages from the wrongful conduct." (Opp. at 4, n.1.) Additionally, since Kremen's Unfair Competition claim is premised upon its antitrust, conversion and breach of fiduciary duty claims (as predicate acts) under Business and Professions Code Section 17200, et seq., Kremen

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contends that this claim is timely for the same reasons the underlying claims are not time-barred. Kremen's reliance on the purported "continuing" nature of the alleged tort and/or duty is misplaced. As a practical matter, Kremen's theory indefinitely tolls any applicable statute of limitations and eviscerates any need to time bar filing an action so long as ARIN continues to refuse to transfer the requested IP Resources. Kremen's espoused theory would suspend or otherwise postpone the statute of limitations in perpetuity so long as ARIN maintains a fiduciary relationship with Kremen (which in Kremen's view would be forever). Not only would this theory result in the exception swallowing the rule, it is completely unsupported under California law. Kremen's Opposition fails to identify a single case (as there does not appear to be one) that suspends or otherwise postpones the accrual date of a conversion claim based upon the "continuing" nature of the alleged harm suffered by the plaintiff.5 Kremen's reliance on the de Vries case is also misguided. de Vries is not a statute of limitations case and does not even remotely support Kremen's argument that his state-law claims are timely. Rather, the de Vries Court determined that a defendant could be considered to be a joint tortfeasor when joining a continuing conspiracy to convert when he has full knowledge of the prior acts of his coconspirators and actively participated in the overall purpose to convert all the stolen property to their use and benefit, as an active participant regardless of whether the defendant personally possessed all or any part of the unrecovered stolen property. 53 Cal. 2d at 650. There is absolutely no discussion whatsoever in the de Vries case concerning the tolling, suspension, or postponement of a statute of limitations. The case is therefore inapposite and completely irrelevant to the issue presented in Kremen's brief on this point. Moreover, while Kremen attempts to analogize his relationship with ARIN to that
5

California courts have carved exceptions to postpone the accrual date of a conversion claim but only where the "fiduciary has concealed the material facts giving rise to the cause of action." Strasberg, 51 Cal. App. 4th at 916; Bennett v. Hibernia Bank, 47 Cal. 2d 540, 561 (1956). In this case, concealment is not an issue. Kremen knew the nature and extent of the IP Resources at issue (the NETBLOCKS), he knew who controlled the alleged IP Resources (ARIN), and he had actual knowledge that the IP Resources were not being transferred or otherwise allocated to him without an express agreement on the terms and conditions relating thereto. 6
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of a patient with doctor or client with lawyer to bootstrap himself into a "continuing duty" and postponed accrual theory (Opp. at 4, n.1), no such similarity exists here.6 As a preliminary matter, Kremen has no contractual relationship with ARIN (although he now claims he should be allowed to step into the shoes of Cohen's contractual relationship with ARIN). More importantly, not every contractual relationship gives rise to a fiduciary duty. Rather, ARIN acts as a fiduciary to the public in its non-governmental organization ("NGO") capacity managing the allocation of IP Resources for the entire Internet community. Even assuming that Kremen steps into Cohen's contractual shoes, ARIN is not a fiduciary to the individual registrants with whom it contracts to allocate resources. Kremen admits that "starting in 2001," ARIN, "deni[ed]...[Kremen's] request to transfer control of the NETBLOCK PROPERTY to Plaintiff." (Opp. at 5:13; 5:24-6:1.) Accordingly, Kremen's claims accrued in 2001. ARIN refused to transfer the "NETBLOCKS" to Kremen starting in 2001 and the parties' confrontations at that time put Kremen on notice of the need to protect his alleged IP Resources, thereby triggering the running of the statute of limitations as a matter of law. See Nafzger, 42 Cal. App. 4th at 428-29. Kremen's Supplemental Opposition suggests, without merit, that ARIN's transfer of a particular ASN to LACNIC in 2002 after the September 2001 Order issued somehow renews the statute of limitations. However, as stated above, the limitations period began to run upon ARIN not providing Kremen with the subject IP resources. For these reasons, Kremen's claims are time-barred as a matter of law and the Complaint should be dismissed with prejudice.

Plaintiff's theory of "postponed accrual" is not remotely applicable here. (Opp. at 4, n.1, citing Chavez v. Carter, 256 C.A. 2d 577 (1967) and Fazio v. Hayhurst, 247 C.A. 2d 200, 203 (1966).) The theory is relevant only "[i]n cases of professional malpractice [where] ... postponement of the period of limitations until discovery finds justification in the special nature of the relationship between the professional man and his client." Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 187-88 (1971) (emphasis added). No such special relationship between professional and client exists in this case between ARIN and Kremen, and even if it did, the allegations in Kremen's Complaint clearly demonstrate that Kremen did not recently "discover" the harm he complains of, but knew of any such injury since 2001. (Complaint, ¶¶ 49, 50, 52, 73, 75, 83.)
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B.

Each And Every Cause Of Action Fails To State Any Claim Upon Which Relief Can Be Granted. 1. Plaintiff's Antitrust Claims Must Be Dismissed. a. ARIN's Conduct Is Immune From Antitrust Scrutiny.

ARIN's negotiations with Kremen in response to his demand to be given particular IP Resources, which demand was based on a disputed interpretation of a September 2001 Court Order in the Kremen v. Cohen case, are immune from antitrust liability under the NoerrPennington doctrine, as settlement negotiations constitute protected "petitioning" activity. (Motion at 6-8.) Such negotiations are immunized even though ARIN was not a party to that litigation, and despite their out-of-court nature. (Id. at 7-8, citing Columbia Pictures Indus., Inc. v. Professional Real Estate Inv., Inc., 944 F.2d 1525, 1529-30 (9th Cir. 1991) and Sosa v. DIRECT TV, Inc., 437 F.3d 923, 936-38 (9th Cir. 2006), inter alia.) (1) Kremen's Antitrust Claims Are Premised Upon ARIN's Denial of His Claim to the IP Resources and the Ensuing Negotiations Between the Parties, and Are Clearly Based on ARIN's Interest in the Underlying Litigation.

Kremen does not dispute ARIN's statement of the relevant law holding that NoerrPennington immunity extends to litigation-related activities, broadly defined, even when conducted by non-parties to litigation. Kremen's Opposition is, instead, based on: (1) the legally unsupported assertion that "KREMEN's presentation to ARIN of the Sept. 2001 order was not the assertion of a claim against ARIN" (Opp. at 7:19-7:20 (emphasis in original)); (2) "ARIN's refusal to comply, it's [sic] offer to compromise or to provide substitute relief was not an offer of settlement of a claim against it pursuant to [Fed. R. Evid.] 408" (id. at 7:20-7:21); and (3) ARIN's position was not based on any "interest in the underlying litigation that spawned the Sept. 2001 order." (Id. at 9:9-10.) These arguments are unavailing for several reasons. First, Plaintiff's insistence that he was not asserting a "claim" when he demanded that ARIN comply with his interpretation of the September 2001 Court Order or face litigation based on its refusal to do so is absurd and unsupported by any law. (Opp. at 7:10-23.) Clearly, Kremen's demand was and remains a legal claim to what he contends erroneously is a property
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interest in the subject IP Resources.7 Kremen does not cite any authority for his position. Second, Kremen's lexicography ­ that an "offer to compromise" is not "an offer of settlement" ­ is nonsensical. An "offer of compromise" is defined as "[a]n offer by one party to settle a dispute amicably (usu. by paying money) to avoid or end a lawsuit or other legal action." Black's Law Dictionary, Eighth Ed. 1114 (Bryan A. Garner, et al., eds., West 2004) (emphasis added). While Kremen argues that he did not have settlement negotiations with ARIN, it is Kremen's Complaint, not his brief, which must be measured. The Complaint states in pertinent part: Despite Plaintiff's many requests, Defendant ARIN has continuously refused to transfer the NETBLOCK PROPERTY to Kremen in compliance with the Order. ...Rather than complying with the unequivocal terms of the NETBLOCK ORDER, ARIN's response from the outset was that they "would work something out" with KREMEN regarding the NETBLOCK ORDER. Seemingly unfazed by the Court's directives, ARIN, by and through its President Mr. Plzak and through its counsel, began a negotiation of the terms and conditions of its compliance with the ORDER. In fact, all correspondence from ARIN regarding the NETBLOCK ORDER was designated as confidential settlement communications "PURSUANT TO § 408..." ARIN's resistance to comply with the NETBLOCK ORDER continued through back-and-forth discussions between ARIN, its counsel, and Plaintiff KREMEN into 2005, culminating in ARIN's ultimate refusal to transfer the NETBLOCK PROPERTY as ordered. (Complaint, ¶¶13, 50, 51 (emphasis supplied)). Negotiations of precisely this sort receive NoerrPennington immunity under the multiple cases, including Liberty Lake Inv., Inc. v. Magnuson, 12 F.3d 155, 157-59 (9th Cir. 1993), that ARIN cites in its opening brief. (See Motion at 7, n.5.) Kremen again cites no case law to refute that cited by ARIN establishing the protected nature of these settlement negotiations. Further, Kremen spends several pages discussing whether Fed. R. Evid. 408 renders inadmissible at trial (a) Kremen's demand that ARIN turn over the IP Resources or (b) ARIN's subsequent negotiations with Kremen. (Opp. at 9-11.) Those issues, however, have no A "claim" is "the assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional." Black's Law Dictionary, Eighth Ed. 264 (Bryan A. Garner, et al., eds., West 2004).
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bearing on whether ARIN can properly invoke Noerr-Pennington immunity. Kremen's discussion of Fed. R. Evid. 408 is entirely inapposite. The issue is not whether the communications are subject to evidentiary exclusion but whether the parties' conduct at the time establishes that they believed their conduct related to the prior litigation and was an effort to resolve their dispute. Given that the parties characterized their discussions as protected by Fed R. Evid. 408 at the time, there is no real dispute that Kremen acknowledged at the pertinent time that their negotiations related to the underlying litigation. Finally, Plaintiff's assertion that Noerr-Pennington immunity cannot apply as ARIN's purported lack of an ownership interest in the IP Resources precluded it from having the requisite "interest in the outcome of the underlying litigation" is insupportable. (Opp. at 9:5-6.) Plaintiff cites no antitrust case for this naked proposition, nor does he refute any of the cases cited by ARIN in its moving papers, which establish that it did, in fact, have the requisite "interest in the outcome" of the Kremen v. Cohen litigation, insofar as that outcome involved the disposition of the IP Resources that were formerly licensed by Cohen. (See Motion at 7, n.5.) Moreover, the parties' negotiations after the resolution of the underlying litigation confirm their belief at that time that ARIN did, in fact, have an interest in the outcome of that litigation insofar as it pertained to disposition of IP Resources. (2) Kremen's Antitrust Claims Are Derived From And Are Dependent Upon the Court's September 2001 Court Order.

Kremen makes a new, complicated, and contrived secondary argument against application of Noerr-Pennington immunity. ARIN's alleged "misconduct" did not relate to the September 2001 Court Order and therefore cannot constitute protected petitioning of the judiciary. (Opp. at 8-9.) In support of this argument, Kremen asserts that ARIN's alleged misconduct consists not only of its purported refusal to comply with the Court Order, but also its imposition upon Kremen of other, "onerous and anti-competitive terms and conditions" as a precondition to transfer of the IP Resources. (Id.) Kremen cannot legitimately split the singular Kremen-ARIN negotiations related to the September 2001 Court Order into two distinct parts, nor can he re-write his Complaint in
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his Opposition Brief. By Kremen's own admission, ARIN's insistence that Kremen comply with the "other" terms and conditions (its standard terms and conditions) reflects ARIN's good faith interpretation of that same Court Order and negotiations toward implementation of that Order. The Complaint charges that: · · "[A]ny such requirement or determination would be contrary to the directive and purpose of the NETBLOCK ORDER as issued." (Complaint, ¶56 (emphasis in original)). "Mr. Plzak further conditioned any transfer of NETBLOCK PROPERTY under the NETBLOCK ORDER upon Plaintiff's agreement to be bound by a contractual provision that would allow ARIN to rescind and cancel KREMEN's ownership or any or all of the NETBLOCK PROPERTY..." (Id., ¶62 (emphasis in original); see also ¶¶64-65, 69 (containing further allegations linking ARIN's insistence that Kremen agree with certain terms and conditions with the court order)). "ARIN's resistance to comply with the NETBLOCK ORDER continued...into 2005, culminating in ARIN's ultimate refusal to transfer the NETBLOCK PROPERTY as ordered." (Id., ¶51 (emphasis in original)).

·

As the Complaint thus indisputably alleges, all of ARIN's alleged conduct relates to the September 2001 Court Order. Therefore, all of the "conduct" relating to the implementation of that Order is immune from antirust scrutiny under the Noerr-Pennington doctrine. b. Kremen Has Not Alleged A Viable Section 1 Claim. (1) There Is No Cognizable Combination or Conspiracy.

A valid claim under Section 1 of the Sherman Act (15 U.S.C. § 1; "Section 1") requires an actionable conspiracy between at least two legally separate persons or entities. (Motion at 9, citing Fisher v. City of Berkeley, 475 U.S. 260, 266 (1986).) Kremen's Complaint does not plead a combination or conspiracy that may serve as the basis for a Section 1 claim under even the broadest interpretation of his amorphous allegations. (a) ARIN cannot conspire with its President as a matter of law.

Despite Kremen's efforts to characterize each of the individuals and corporations listed in the Complaint as "officers and directors" of ARIN who "conspired to restrain trade," the fact remains that only one person or entity in the Complaint is alleged to have engaged in any concerted conduct with ARIN: its President, Raymond Plzak. (See Complaint, ¶¶50-62.) Because ARIN's President is not legally separate from ARIN as a matter of law, Kremen has

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failed to plead a requisite combination or conspiracy as a matter of law, and his Section 1 claim must be dismissed for this reason alone. (Motion at 9-10, citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769 (1984).) (b) Kremen has failed to plead any concerted conduct by any other individuals or entities, and has certainly failed to plead such allegations with the requisite specificity.

Kremen does not dispute that a Section 1 claim requires proof of a conspiracy between at least two legally separate persons or entities. To avoid this problem, Kremen's Opposition emphatically insists that his Complaint lists "by name" 22 individual officers, directors, and board members of ARIN. (Opp. at 15.) This is true but meaningless. Kremen does not describe what these people did that constituted an antitrust violation. Because a Section 1 claim must describe all such facts of conspiracy in detail and a plaintiff cannot maintain such a claim with only bare-bones allegations, the claim must be dismissed. (Motion at 9-10, citing Llewellyn v. Crothers, 765 F.2d 769, 775 (9th Cir. 1985); In re Nine West Shoes Antitrust Litig., 80 F. Supp. 181, 191 (S.D.N.Y. 2000), inter alia.) (c) Kremen cannot and does not refute the pro-competitive effects of the allocation policies.

Even if some ill-defined combination did exist, Section 1 is not violated as a matter of law if the "conspiracy" merely establishes and enforces reasonable membership policies with admitted pro-competitive justifications. (Motion at 10, citing American Council of Certified Podiatric Physicians & Surgeons v. American Bd. of Podiatric Surgery, 185 F.3d 606, 620-22 (6th Cir. 1999).) Because ARIN's maintenance of requirements for entities to register IP addresses is just as consistent with the preservation of ARIN's pro-competitive goals for allocating IP address space efficiently as with concerted action among conspirators, it cannot form the basis for a Section 1 violation. (Motion at 10-11, citing Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).) Kremen does not dispute the holdings or application of either American Council or Matsushita, which, again, provide that accused conduct that is as consistent with pro-competitive conduct as with anti-competitive conduct cannot form the basis of a Section 1 violation.
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Moreover, Kremen cannot legitimately deny that his Complaint expressly acknowledges that ARIN's centralization of the stewardship of IP resources for a broad geographical area ensures the efficient management of those resources. (Complaint, ¶20, 29, 34.) For this reason alone, the Complaint fails to state an actionable Section 1 claim. The recent case Gregory v. Fort Bridger Rendezvous Ass'n, 448 F.3d 1195 (10th Cir. 2006), is illustrative. The Gregory defendant, known as the FBRA, was a non-profit membership organization that undertook historical re-enactments; the FBRA had exclusive rights from the State of Wyoming to stage an annual re-enactment of a fair (the "Rendezvous") by fur traders in the 19th century. Id. at 1197. Plaintiffs Sandy and Richard Gregory, a married couple, had sold antique replicas at the fair. Id. at 1198. Each year, plaintiffs ­ like everyone else ­ had to apply to FBRA for one of the limited number of spots on the grounds of the fair. Id. Plaintiffs, who were not members of the FBRA, believed that one year the individual members of the FBRA who also sold antique replicas, etc., conspired to deny plaintiffs access to the fair in order to provide the individual members with better chances of selling their competing goods. Id. Plaintiffs brought multiple Sherman Act claims against FBRA. Id. at 1197. However, the Tenth Circuit found that the FBRA was within its rights to establish and implement a system for allocating the limited number of spots for vendors at the fair, and the denial of a spot to plaintiffs could not be seen as manifestly anticompetitive because that action left open a spot for somebody else. Id. at 1204. The court wrote: "Because more traders apply to sell products at the Rendezvous than space permits, the FBRA must be able to exercise the authority granted to it by the State of Wyoming to determine which applications to accept. This exercise is rendered impossible, however, when the threat of antitrust liability looms overhead." Id. Just like FBRA in the Gregory case, ARIN is well within its legitimate rights to establish and implement a system for allocating finite IP Resources. Moreover, even a tentative denial of some IP addresses to Kremen (pending his agreement to comply with the established protocols) cannot be anticompetitive. ARIN's operations would be rendered impossible if the threat of antitrust liability "looms overhead." Furthermore, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492
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(1998), cited by Kremen for the propositions that (1) members of an organization may be deemed conspirators within the meaning of a Section 1 claim, and (2) a membership organization can engage in anticompetitive conduct that is not immune to antitrust scrutiny, is factually distinguishable for at least two reasons. First, Allied Tube involved allegations of antitrust violations against a private organization which set industry-wide standards for the products that could be used in electrical wiring systems. Id. at 495. None of the parties to that case articulated pro-competitive justifications for the standards-setting system or the actions of the members of the organization. This omission contrasts markedly with Kremen's own acknowledgment that ARIN exists to serve the pro-competitive purpose of overseeing the efficient allocation of finite IP Resources. Second, in Allied Tube, the members of the private organization allegedly excluded the plaintiff's existing products from being approved under the pertinent standards, economically injuring the plaintiff. Id. at 497. In the instant case, in sharp contrast, Kremen does not and cannot allege that ARIN has denied Kremen access to the resources at issue, which he can rent from numerous third parties or obtain from ARIN by simply following the same rules that apply across the board. (2) Kremen Fails To Allege An Unreasonable Restraint On Trade That Harms Competition. (a) Kremen alleges only harm to himself.

Kremen cannot point to a single allegation in his Complaint indicating how and where competition in the relevant market has been injured by ARIN's establishment and enforcement of standards under which IP resources are allocated. This failure alone is dispositive. American Adver. Management, Inc. v. General Tel. Co., 190 F.3d 1051, 1055 (9th Cir. 1999). Kremen's Complaint is replete with allegations of the ways in which he personally has purportedly been injured by ARIN (specifically, ARIN's insistence that Kremen, like every other applicant for IP Resources, complete a short form essentially outlining his plans for the IP Resources that Kremen wants and acknowledging that he cannot maintain registrations for IP Resources that go unused while other people or entities could use them). (Id., ¶¶73-81.) Yet Kremen does not allege, other than in meaningless boilerplate language, that any other persons or
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entities have been harmed by ARIN's conduct. While Kremen suggests that the persons establishing the policies have too much control over them as well as some unspecified "economic interests" in the process (Id., ¶¶60, 66, 70), Kremen utterly fails to explain how this alleged situation results in any harm to competition. In his Opposition Brief, Kremen insists that ARIN has mischaracterized the Complaint's allegations of harm to competition.8 Kremen argues that his Complaint "has alleged numerous times in detail that ARIN's anticompetitive conduct was directed not solely at himself, but also at others similarly situated ­ in fact, nearly every new entity into that market." (Opp. at 12.) However, a review of the Complaint establishes that none of the paragraphs cited by Kremen make even general allegations of harm to competition. Again, even if allegations of harm to competition may be inferred from the totality of the pleading, such vague, factually unsupported allegations are legally insufficient to sustain the harm to competition element of a Section 1 claim. Tanaka v. University of So. Cal., 252 F.3d 1059, 1062-64 (9th Cir. 2001); Kingray, Inc. v. National Basketball Ass'n, 188 F. Supp. 2d 1177, 1186 (S.D. Cal. 2002). (b) Kremen's new argument that ARIN's application of its standard terms and conditions is "inconsistent, arbitrary and biased" is not only flatly contradicted by the allegations in the Complaint, but even if it were implied, no facts to support it are alleged.

Kremen asserts for the first time in his Opposition that the challenged conduct is not creating standard terms and conditions but is a "lack of consistency in ARIN's application of It follows that Kremen asserts that none of ARIN's case precedents (e.g., Tanaka v. University of So. Cal., 252 F.3d 1059 (9th Cir. 2001), inter alia, discussed at Motion at 11-15) apply to the present case, and Kremen does not analyze any of the cases. Kremen does argue that ARIN has supposedly misrepresented the holding of TV Communications Network v. Turner Network Television, Inc., 964 F.2d 1022 (1992). Kremen is wrong; ARIN has accurately represented one of the holdings of that case. ARIN characterized TV Communications as "affirming grant of motion to dismiss plaintiff cable television arbitrator's Section 1 price-fixing claim against cable television operators and programmers, because Complaint made only conclusory allegations of illegality, and did not allege supporting facts." (Motion at 12.) The TV Communications court itself stated: "Although TVCN alleges TNT engaged in price fixing, it alleges no facts to support this conclusory assertion. TVCN's Complaint does not disclose the existence of a pricing agreement. Accordingly, we conclude TVCN cannot establish a section one claim against TNT based on price fixing." 964 F.2d at 1027. As can be seen, ARIN's summary of that holding is precise.
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it [sic] so-called standard procedures." (Opp. at 11:26-11:27 (emphasis in original)). Kremen cites a number of paragraphs in its Complaint which he asserts directly plead this lack of "consistency" by ARIN (Id. at 11:27-11:28); however, not one of those paragraphs contains such an allegation. To the contrary, the Complaint repeatedly states that ARIN's policies (and, by implication, any changes over time to those policies) apply uniformly to all applicants for IP Resources: · Complaint, ¶60 ("[I]t is the general `policy' of ARIN that all applications for registration and allocation of IP addresses and ASN numbers similarly submit to and comply with ARIN's `justification' policy" (emphasis added)); · Complaint, ¶ 66 ("[I]t is the general `policy' of ARIN that all applications for registration and allocation of IP addresses similarly agree to ARIN's `grab back' policy" (emphasis added)); and · Complaint, ¶70 ("[I]t is the general `policy' of ARIN that all applications for registration and allocation of IP addresses similarly agree to such an information collection and publication procedure" (emphasis added)). Moreover, to the extent that the vague allegations cited by Kremen may be construed as creating an implied allegation of a lack of consistency by ARIN in applying its procedures, such allegations fail as a matter of law to state the requisite specificity for the harmto-competition element required of Section 1 claims. Kingray, 188 F. Supp. 2d at 1186. For example, the Complaint fails to allege: (i) who, if anyone, received favored or special treatment, or a waiver, exemption or modification of those procedures, (ii) when such events took place, or (iii) the specific policy or procedure that was waived or modified. (3) Kremen Has Failed to Plead Cognizable Antitrust Injury.

As set forth in its moving papers, a Section 1 claim includes "antitrust injury," which consists of (1) unlawful conduct; (2) causing injury to plaintiff; (3) that flows from that aspect of the conduct which makes it unlawful; and (4) that is of the type that antitrust laws were intended to prevent. (Motion at 15, citing Glenn Holly Entertainment, Inc. v. Tektronix, Inc., 343 F.3d 1000, 1008 (9th Cir. 2003).) As demonstrated above, ARIN's conduct was not unlawful, and Kremen's injury (if any) flowed from ARIN's consistent application of standard policies and procedures with legitimate pro-competitive justifications. (Motion at 16.) Therefore, Kremen

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suffered no antitrust injury. (Id.) Kremen insists that "Plaintiff has alleged that he and others similarly situated have been unfairly and unlawfully excluded...," again citing Complaint paragraphs that simply do not state what his Opposition Brief argues. (Opp. at 17:1-17:4 (emphasis supplied)). Not only does the Complaint fail to reference any harm suffered by others, but even if it had, such allegations do not confer antitrust injury for the reasons stated above, including that the pro-competitive nature of the standards at issue precludes a finding of illegal conduct. Viazis v. American Ass'n of Orthodontists, 314 F.3d 758, 761, 766 (5th Cir. 2002). c. Kremen Has Failed To Allege A Viable Section 2 Claim.

Kremen nowhere disputes ARIN's legal authority establishing the requisite elements of a Section 2 claim and providing that mere possession of monopoly power in the relevant market does not constitute a Section 2 monopolization violation. (Motion at 16, citing United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966), inter alia.)9 Instead, Kremen's Opposition again asserts brand new arguments not alleged in his Complaint in an effort to overcome this Motion. First, Kremen argues that ARIN is not a "natural" monopoly because it was "spawned by a concerted collusion between the largest industry players in the market for IP numbers." (Opp. 18:21-22.) Not only is this novel argument missing from the Complaint, it is Grinnell concerned a conglomerate of companies that together controlled more than 85 percent of the market for protective services