Auraria Student Housing at the Regency, LLC v. Campus Village Apartments, LLC

Filing 223

ORDER denying 197 Plaintiff's Motion in Limine to Preclude Introduction of Evidence Relating to Uncharged Tying Arrangement. By Judge William J. Martinez on 1/9/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02516-WJM-KLM
AURARIA STUDENT HOUSING AT THE REGENCY, LLC, a Colorado limited liability
company,
Plaintiff,
v.
CAMPUS VILLAGE APARTMENTS, LLC, a Delaware limited liability company,
Defendant.

ORDER DENYING PLAINTIFF’S MOTION IN LIMINE

Plaintiff Auraria Student Housing at the Regency, LLC (“Plaintiff”) brings this
action against Campus Village Apartments, LLC (“Defendant”) for conspiracy to
monopolize under Section 2 of the Sherman Act, 15 U.S.C. § 2, and related claims.
This matter is before the Court on Plaintiff’s Motion in Limine to Preclude Introduction of
Evidence Relating to Uncharged Tying Arrangement (“Motion”). (ECF No. 197.) For
the reasons set forth below, the Motion is denied.
I. DISCUSSION
As a preliminary matter, the Court notes that Plaintiff’s Motion is untimely under
this Court’s Revised Practice Standard II.F.3, which requires that “all motions in limine
must be filed not later than 21 days prior to the Final Trial Preparation Conference.” As
the Motion was filed on December 30, 2014, it was fourteen days late, and Plaintiff
sought no leave to extend the deadline. The Motion’s tardiness alone is sufficient to
support its denial. However, the Court recognizes that the issues the parties have

raised in their briefing on the Motion inevitably will be raised again during trial in the
absence of a prior ruling settling such issues. Accordingly, the Court finds it prudent to
address the merits of the Motion.
Plaintiff’s Motion seeks to preclude introduction of any evidence related to a tying
arrangement, arguing that such evidence is irrelevant to Plaintiff’s claim of conspiracy to
monopolize, and that there is no support for Defendant’s position that it can defend
against Plaintiff’s Section 2 claim by demonstrating a lawful tying arrangement under
Section 1. (ECF No. 198.)
As to Defendant’s tying defense, the Court agrees with Plaintiff that the cases on
which Defendant relies do not support Defendant’s assertion that “lawfulness under
Section 1 precludes liability for ‘conspiracy to monopolize’ under Section 2”. (ECF No.
221 at 3 (citing NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 139 (1998); Gregory v. Fort
Bridger Rendezvous Ass’n, 448 F.3d 1195, 1206 (10th Cir. 2006)).) Rather, both
NYNEX and Gregory held that a plaintiff’s failure to demonstrate harm to the
competitive process under a Section 1 analysis prevented that plaintiff from establishing
liability on a Section 2 conspiracy claim. See NYNEX, 525 U.S. at 139 (“Unless those
agreements harmed the competitive process, they did not amount to a conspiracy to
monopolize.”); Gregory, 448 F.3d at 1206 (citing NYNEX). Such a showing is
necessary even though competitive harm is not an explicit element of a conspiracy to
monopolize claim, because the purpose of the Sherman Act is “to protect the public
from the failure of the market . . . against conduct which unfairly tends to destroy
competition itself.” Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993).

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Thus, these cases support the conclusion that the parties to an ag reement that does
not harm competition are not liable under either section of the Sherman Act. They do
not support Defendant’s much broader assertion that a plaintiff’s failure to prove a
Section 1 violation automatically precludes liability under Section 2. (See ECF No. 221
at 3.)
Nevertheless, the Court’s rejection of Defendant’s expansive reading of
precedent is insufficient to grant the Motion. To succeed on the Motion, Plaintiff must
show that the challenged evidence is inadmissible. Plaintiff argues that, because a socalled lawful tying arrangement is not necessarily a defense to a Section 2 conspiracy
claim, and because tying and conspiracy have distinct elements, Defendant’s tying
“argument and any related evidence are irrelevant and, so, inadmissible.” (ECF No.
198 at 1.)
Defendant does not dispute that Section 1 tying and Section 2 conspiracy to
monopolize have distinct elements, and the Court agrees that monopoly power and a
relevant market are not elements of a conspiracy claim. See TV Commc’ns Network,
Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1026 (10th Cir. 1992). However,
as the Court has already ruled, evidence supporting Defendant’s lack of monopoly
power in the relevant market is relevant to elements of Plaintiff’s conspiracy claim,
specifically those requiring proof of a specific intent to monopolize and a conspiracy
whose purpose was to monopolize. (See ECF No. 219 at 3-4); see also Fed. R. Evid.
401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence”) (emphasis added). Plaintiff does not
identify any other category of evidence related to Defendant’s tying argument that it
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seeks to exclude. Accordingly, the Court rejects Plaintiff’s argument that this evidence
is irrelevant.
As Plaintiff raises no other arguments in support of its Motion, the Court finds no
basis on which to exclude the challenged evidence.
II. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion in Limine to
Preclude Introduction of Evidence Relating to Uncharged Tying Arrangement (ECF No.
197) is DENIED.
Dated this 9th day of January, 2015.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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