P & M Distributors, Inc. v. Prairie Farms Dairy, Incorporated et al

Filing 38

OPINION: The Motion of Defendants Prairie Farms Dairy, Inc., PFD Supply Corp. and Muller-Pinehurst Dairy to Dismiss the Plaintiff's Amended Complaint (d/e 22 ) is DENIED. This action is referred to United States Magistrate Judge Byron G. Cudmore for the purpose of scheduling a discovery conference. SEE WRITTEN OPINION. Entered by Judge Richard Mills on 10/4/2013. (MJ, ilcd)

E-FILED

Friday, 04 October, 2013 04:48:46 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
P & M DISTRIBUTORS, INC.,
Plaintiff,
v.
PRAIRIE FARMS DAIRY,
INCORPORATED, P.F.D. SUPPLY
CORPORATION, MULLERPINEHURST DAIRY, INC., and
SCHURING & SCHURING, INC.,
Defendants.

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NO. 11-3145

OPINION
RICHARD MILLS, U.S. District Judge:
Plaintiff P & M Distributors, Inc. has filed an Amended Complaint,
wherein it asserts various Antitrust Violations, pursuant to the Sherman Act
15 U.S.C. § 1, et seq., and the Clayton Act, 15 U.S.C. § 13 et seq. Pending
before the Court is the Motion to Dismiss filed by Defendants Prairie
Farms Dairy, Incorporated, P.F.D. Supply Corporation, and MullerPinehurst Dairy, Inc.

I. FACTUAL ALLEGATIONS1
In its Amended Complaint, Plaintiff P & M Distributors, Inc. alleges
that Defendants Prairie Farms Dairy (“Prairie Farms”) and P.F.D. Supply
Corporation (“Prairie Supply”) operate a dairy product production and
supply business in Illinois. These Defendants obtain milk from farmers and
produce consumable dairy products and sell milk to the public through
distributors such as Defendant Muller-Pinehurst, Lockwood Dairy,
Hawthorn Mellody, Inc. and Cary Dairy, among others. The distributors
sell the products to intermediate customers including schools, nursing
homes, hospitals and retailers, through direct sales and also through subdistributors. These intermediate customers, including supermarkets and
convenience stores, then sell the dairy products to the consuming public.
From the fall of 1998 until the fall of 2007, the Plaintiff purchased
Prairie Farms dairy products from one of its own distributors, Hawthorn
Mellody, Inc., and resold those dairy products to schools, hospitals, nursing
homes, retailers and other customers as a sub-distributor of Hawthorn
These alleged facts are taken from the Amended Complaint. See Doc.
No. 12.
1

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Mellody, Inc., which in turn obtained the products from Prairie Farms and
Prairie Supply.
Neal Rosinsky is the President of Muller-Pinehurst. Prairie Farms
owns fifty percent of Muller-Pinehurst. The other fifty percent of MullerPinehurst is owned by Mid-West Dairymen’s Association.
During the period from before 2004 through and after 2007, Prairie
Farms controlled between 60 percent and 80 percent of the market for
liquid milk and related products for elementary schools and high schools,
both public and Catholic, within Cook, Lake, Will and Dupage Counties.
During the same period, Prairie Farms controlled 100 percent of the
liquid milk and related products market for a group of 30 nursing homes
which received management services from EKS Management and Marketing
services from IIT SourceTech. The 30 nursing homes are located within
Cook, Lake, Will and Dupage Counties, Illinois.
From before 2004 through and after 2007, Prairie Farms and Prairie
Supply, through William Wilberding and other agents, and MullerPinehurst through Neal Rosinsky and other agents and Lockwood

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Enterprises, Inc.2 , through Jerry Lockwood and other agents, and Schuring
& Schuring, Inc., through Duane Schuring and other agents, via a series of
agreements and concerted actions conspired to maintain higher, anticompetitive milk prices for the liquid milk and related dairy product
markets that Prairie Farms controlled, including but not limited to the
school district market for Cook, Lake, Dupage and Will Counties and the
30 nursing home EKS Management/IIT SourceTech market described
above, by prohibiting other Prairie Farms Distributors and sub-distributors
from bidding on milk supply contracts for those two markets, and by
requiring that any bids submitted by other distributors or sub-distributors,
such as the Plaintiff, be at or above minimum, inflated price levels
determined by Prairie Farms, causing the consumers in those two markets
to pay higher than market prices for liquid milk and related dairy products.
At all relevant times, Schuring & Schuring, Inc. was a Prairie Farms
distributor and Lockwood Enterprises was also a Prairie Farms distributor,
which sold Prairie Farm milk and related dairy products to the schools and
Lockwood Enterprises, Inc. was initially named as a Defendant, but has
since been dismissed. See Doc. No. 32.
2

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nursing homes in the markets described above, or as sub-distributors of
Muller-Pinehurst.
During this time period, and within the school district and nursing
home markets described above, the Defendants agreed and conspired to
inflate milk prices in the markets in which Prairie Farms had a dominant
market power, by requiring that milk products be sold at prices higher than
Prairie Farms milk products were being sold generally.
The Plaintiff alleges that Defendants violated the antitrust laws by
conspiring to fix anti-competitive prices in the school district and nursing
home markets, causing the consumers to pay inflated, higher than market
prices, and by prohibiting the Plaintiff from competing to provide Prairie
Farms milk products to those markets at lower prices. The Plaintiff asserts
it has sustained damages based on lost sales, contracts and lost profits.
II. DISCUSSION
A. Legal standard
In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), the Supreme Court
addressed the pleading requirements for antitrust claims: “[A] formulaic

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recitation of the elements of a cause of action will not do.

Factual

allegations must be enough to raise a right to relief above the speculative
level.” Id. at 555 (citations omitted). Regarding the Sherman Act, “[t]he
crucial question is whether the challenged anticompetitive conduct stems
from independent decision or from an agreement, tacit or express.” Id. at
553 (internal quotation marks and citation omitted). Based on these
standards, a complaint alleging an antitrust claim must include “enough
factual matter (taken as true) to suggest that an agreement was made.” Id.
at 556.
Additionally, the complaint must plausibly allege the existence of an
antitrust injury. See Tamburo v. Dworkin, 601 F.3d 693, 699 (7th Cir.
2010). “[T]his requires factual allegations suggesting that the claimed
injuries are of the type the antitrust laws were intended to prevent and
reflect the anticompetitive effect of either the violation or of
anticompetitive acts made possible by the violation.” Id.
On behalf of the Seventh Circuit, Judge Posner further elaborated on
the pleading standard for antitrust cases:

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The Court said in Iqbal that the “plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
This is a little unclear because plausibility, probability, and
possibility overlap. Probability runs the gamut from a zero
likelihood to a certainty. What is impossible has a zero
likelihood of occurring and what is plausible has a moderately
high likelihood of occurring. The fact that the allegations
undergirding a claim could be true is no longer enough to save
a complaint from being dismissed; the complaint must establish
a nonnegligible probability that the claim is valid; but the
probability need not be as great as such terms as
“preponderance of the evidence” connote.
In re Text Messaging Antitrust Litigation, 630 F.3d 622, 629 (7th Cir. 2010)
(internal citation omitted).
B. Antitrust generally
Based on the allegations of the Amended Complaint, it appears the
Plaintiff is alleging the Defendants violated Section 1 of the Sherman Act
based on vertical restraints. See Miles Distributors, Inc. v. Specialty Const.
Brands, Inc., 476 F.3d 442, 450-51 (7th Cir. 2007) (describing trade
restraining agreements between firms at different levels of distribution, such
as wholesaler and retailer).
A plaintiff generally must prove three things in order to prevail: (1)

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a contract, collusion or conspiracy between the defendants; (2) which
caused the unreasonable restraint of trade in the relevant market; and (3)
resulted in injury to the plaintiff. See Omnicare, Inc. v. UnitedHealth Group,
Inc., 629 F.3d 697, 705 (7th Cir. 2011)
The Defendants allege the Plaintiff has failed to identify any
concerted action because the Defendants constitute a single entity for
antitrust purposes.

The Defendants contend that the Prairie Farm

Defendants cannot conspire with each other as a matter of law.

See

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 770 (1984)
(“[T]he coordinated activity of a parent and its wholly owned subsidiary
must be viewed as that of a single enterprise for purposes of § 1 of the
Sherman Act.”). The Defendants further assert there is not a single factual
allegation that Defendants ever discussed any aspect of pricing or customer
restrictions for distributors of Prairie Farms’ dairy products with any other
Defendant. Because the Defendants assert the Amended Complaint is
reasonably read only to assert that Prairie Farms acted unilaterally, they
contend the Section 1 claim must be dismissed.

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The Defendants further assert that Plaintiff does not allege that
Prairie Farms Dairy engaged in any anticompetitive conduct because a
producer is permitted to “announce suggested resale prices and refuse to
deal with distributors who do not follow them.” See Leegin Creative Leather
Products, Inc. v. PSKS, Inc., 551 U.S. 877, 901 (2007).

Courts have

recognized that resale price maintenance, or supplier-imposed restrictions
on distributors, generally benefit interbrand competition and consumers,
and thus are procompetitive. See id. at 890-92.
The Defendants also contend that Plaintiff’s claims fail because the
Plaintiff has not sufficiently alleged a relevant antitrust market, which is
ordinarily necessary to assert a claim. See Republic Tobacco Co. v. North
Atlantic Trading Co., 381 F.3d 717, 736 (7th Cir. 2004). “The relevant
market has both a product and geographic dimension.”

Id. at 738.

However, “if a plaintiff can show the rough contours of a relevant market,
and show the defendant commands a substantial share of the market, then
direct evidence of anticompetitive effects can establish the defendant’s
market power in lieu of the usual showing of a precisely defined relevant

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market and a monopoly market share.” Id. at 737.
The Defendants further assert that Plaintiff lacks standing because it
has not sufficiently alleged an injury. “In order to bring an antitrust claim,
a plaintiff must establish that it has antitrust standing; that is, that its
claimed injuries are of the type the antitrust laws were intended to prevent
and reflect the anticompetitive effect of either the violation or of
anticompetitive acts made possible by the violation.” See Tri-Gen Inc. v.
International Union of Operating Engineers, 433 F.3d 1024, 1031 (7th Cir.
2006) (internal quotation marks and citation omitted). Generally, this
means plaintiffs must demonstrate consumer injury–higher prices, for
example. See id.
C. School District Market
(1)
In Count I, the Plaintiff alleges there were antitrust violations with
respect to the School District Market.

In April 2006, the Plaintiff

submitted a bid to School District No. 54 in Schaumburg, Illinois, bidding
on a three-year contract to supply dairy products.

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Cary Dairy and

Lockwood Dairy, both of which are sub-distributors of Prairie Farm
products for Muller-Pinehurst, also submitted bids to provide Prairie Farm
dairy products to the school district.

The Plaintiff’s bid was low by

$5,000.00.
At the time, Neal Rosinsky informed the Plaintiff that Cary Dairy was
retiring to be replaced by Lockwood Dairy (both sub-distributors of MullerPinehurst). The Plaintiff was told it was not permitted by Prairie Farms to
bid on the Schaumburg School District contract because that would drive
down the price received for dairy products sold by Muller-Pinehurst and
Prairie Farms. Moreover, Cary Dairy had submitted an inflated, high bid
to Schaumburg schools so that Lockwood Dairy would be the low bidder
and that Plaintiff would not be allowed to compete with other Prairie Farms
distributors, including Muller-Pinehurst and its sub-distributors on the
basis of price.
The Plaintiff further alleges that Neal Rosinsky and others falsely
informed Schaumburg School District No. 54 that Plaintiff was not
qualified or sufficiently experienced to handle the Prairie Farms dairy

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products contract for the district. The School District then awarded the
contract to Lockwood Dairy, a sub-distributor of Muller-Pinehurst.
Patrick Izzo was handling the Plaintiff’s day-to-day operations
between April 2006 and late September or early October 2007, at which
time Neal Rosinsky repeatedly told Izzo that Plaintiff would not be
permitted to bid against other Prairie Farms distributors and subdistributors for school districts within Cook, Lake, Dupage and Will
Counties, Illinois, except for a few school districts with which Plaintiff
already had lengthy contracts. Prairie Farms and Muller-Pinehurst wished
to maintain higher than normal prices for the consumers within that school
district market, where Prairie Farms then had dominant market power.
The Plaintiff further asserts that, around May 2007, the Plaintiff
prepared to submit a bid for the Romeoville, Illinois school district.
Lockwood Enterprises was the Prairie Farms distributor on the existing milk
supply contract, which was about to expire. Neal Rosinsky, who was also
acting on behalf of Jerry Lockwood of Lockwood Enterprises, directed the
Plaintiff to submit a bid that was higher than the bid submitted by

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Lockwood Enterprises. In consideration thereof, Lockwood Enterprises
would transfer its existing contract for the Dolton School District to the
Plaintiff.

The Plaintiff, under duress, complied with this demand by

submitting prices on only milk products in plastic containers (which are
higher in price) and did not submit a bid for milk products contained in
paper/cardboard containers (which are less expensive). Romeoville School
District awarded the new contract for milk in paper/cardboard containers
to Lockwood Enterprises. Lockwood Enterprises then refused to transfer
its existing contract for the Dolton School District to the Plaintiff.
(2)
Based on the foregoing, the Plaintiff has alleged concerted action
between Muller-Pinehurst, Prairie Farms, and Lockwood Enterprises. To
the extent that Defendants contend that Prairie Farms cannot conspire
with Muller-Pinehurst because a wholly owned subsidiary is a single entity
with its parent corporation for antitrust purposes, see Copperweld Corp., 467
U.S. at 770, the Plaintiff alleges that Prairie Farms owns only 50 percent

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of Muller-Pinehurst.3
From before 2004 through and after 2007, Defendants Prairie Farms,
Prairie Supply, Muller-Pinehurst, and Schuring & Schuring along with
Lockwood Enterprises kept consumer prices for the 30 Nursing Homes
Market and for the four-county School District Market, which Prairie
Farms dominated, higher than the prices for the same Prairie Farms milk
products and for other milk products by other suppliers in the four-county
area. The Defendants accomplished this by prohibiting the Plaintiff and
other Prairie Farms distributors from submitting lower bids.
Based on the foregoing, the Plaintiffs have at least generally alleged
concerted action on the part of Prairie Farms/Prairie Supply and MullerPinehurst, Schuring & Schuring and Lockwood Enterprises with respect to
the School District and Nursing Home Markets. The Court concludes that
Plaintiff’s Amended Complaint has sufficiently alleged concerted action to
withstand the Defendants’ Motion to Dismiss on that basis.
As a result, consumers were damaged by paying higher than market
Prairie Supply is a wholly owned subsidiary of Prairie Farms. Therefore,
those two corporations constitute a single entity for antitrust purposes.
3

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prices for their milk products. The Plaintiff was damaged because it was
prohibited from obtaining contracts for the Romeoville School District, the
Schaumburg School District and for other school districts within the four
county area, causing the Plaintiff to lose sales totaling over $1 million per
year and annual profits in excess of $200,000.00, from the School District
Market within the four-county area.
The Plaintiff claims that each Defendant acted intentionally to
restrain the Plaintiff from competing based on price within the four
counties.

Moreover, the Plaintiff was precluded from competing for

business in order to maintain higher prices for the Prairie Farms milk and
related products sold by the Defendants to the customers in that market.
This served to increase profits to the Defendants at the expense of the
consumers in that market and to the damage of the Plaintiff.
The Defendants contend that Plaintiff has failed to plead a relevant
antitrust market, in that the markets are not properly defined. Regarding
the school district, the Plaintiff describes the market as “liquid milk and
related products for elementary schools and high schools, both public and

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Catholic,” within the four-county area–Cook, Lake, Will and Dupage.
The Defendants assert the term “liquid milk and related products” is
vague and ambiguous. “Related products” could include any number of
items–milk, ice cream, sour cream, orange juice, etc. Moreover, there is no
explanation regarding why public and Catholic middle schools or nonCatholic private elementary and high schools are excluded from the relevant
market.
The term “related products” could certainly be defined more
specifically. Moreover, it is unclear why other types of schools are not part
of the relevant market. However, the Court concludes at this stage that
Plaintiff has sufficiently alleged an antitrust market related to the school
district in the four-county area.
The Defendants further assert that Plaintiff’s alleged geographic
market ignores commercial realities and fails to identify other actual or
potential suppliers. The relevant geographic market is the “area of effective
competition . . . in which the seller operates, and to which the purchaser
can practicably turn for supplies.” See United States v. Phila. Nat’l Bank, 374

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U.S. 321, 359 (1963).
In considering a motion to dismiss, a district court can take note of
commercial realties and need not accept the plaintiff’s definition of the
market if it is obviously inaccurate. The Seventh Circuit explained:
The central business district of Highland Park . . . would have
to be something of a consumer’s black hole for us to think that
trendy shoppers wanting better prices on designer jeans and T
Shirts could not venture to other commercial areas to find
them. It doesn’t take a cartographer to know that Highland
Park is located in the densely populated north shore suburbs of
Chicago, nor does it take a market researcher to know that
“Chicagoland” is home to many shopping venues where
consumers could find designer jeans and T-shirts. By any
sensible awareness of commercial reality, 42nd was swimming
in a much larger competitive sea than the complaint lets on.
42 Parallel North v. E Street Denim Co., 286 F.3d 401, 406 (7th Cir. 2002).
Here, the Plaintiff has alleged that Prairie Farms had market power in the
School District (and Nursing Home) Markets within the four-county area.
It further asserts that based on price, Prairie Farms prohibits the Plaintiff
from competing in those markets.
It is unknown at this time whether the Plaintiff’s characterization of
the market for liquid milk and related products will ultimately prove to be

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accurate. At this stage, the Court accepts the Plaintiff’s allegations as to the
geographic market.
The Defendants further contend that Plaintiff has failed to allege an
injury of the type the antitrust laws are designed to prevent.

Upon

reviewing the allegations in the Amended Complaint, the Court disagrees.
The Plaintiff is alleging that school district consumers were damaged
because they had to pay higher prices for milk and other dairy products,
which is sufficient to establish standing via consumer injury. See Tri-Gen,
Inc., 433 F.3d at 1031.
D. Nursing Home Market
The Plaintiff alleges Muller-Pinehurst either directly, or via subdistributors, provided Prairie Farms brand dairy products to a group of
about 30 nursing homes owned and/or managed by EKS Management
(“EKS”). Moreover, Muller-Pinehurst paid IIT Source Tech a commission
of approximately two percent of its sales and/or those of its sub-distributors,
including Schuring & Schuring and Lockwood Enterprises, made to the 30
nursing homes managed or owned by EKS.

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The Plaintiff submitted successful bids for Prairie Farms dairy
products to two of the 30 nursing homes managed or owned by EKS,
Burnham Healthcare and Presidential Pavilion. The Plaintiff submitted low
bids to Burnham Healthcare and Presidential Pavilion and was awarded
Prairie Farms dairy products supply contracts by those two nursing homes.
Pursuant to an agreement with Prairie Farms and the other
Defendants, Neal Rosinsky then ordered the Plaintiff to pay a two percent
commission to IIT SourceTech on the sales it made to the Burnham
Healthcare and Presidential Pavilion nursing homes.
The Plaintiff alleges starting in around April 2006, Neal Rosinsky,
pursuant to an agreement with Prairie Farms and the other Defendants,
advised Patrick Izzo on a number of occasions that Plaintiff could not
submit Prairie Farms dairy products supply bids to any of the other 28
nursing homes owned or managed by EKS at prices lower than the bids
submitted by Muller-Pinehurst and/or its sub-distributors.
Beginning in about April 2006 until early fall 2007, Neal Rosinsky,
pursuant to an agreement with Prairie Farms and the other Defendants,

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submitted minimum price lists to the Plaintiff for all Prairie Farms dairy
products sold by the Plaintiff to either Burnham Healthcare or Presidential
Pavilion, in order to prevent the Plaintiff from selling at prices lower than
Muller-Pinehurst to the other 28 nursing homes in the group managed by
EKS, and prohibited the Plaintiff from bidding on contracts with any of the
other 28 nursing homes in the group.
Neal Rosinsky repeatedly advised Patrick Izzo that, if the Plaintiff
were permitted to sell Prairie Farms dairy products to Burnham Healthcare
and Presidential Pavilion at lower prices than Muller-Pinehurst was selling
the same products to the other 28 nursing homes, the other 28 nursing
homes would start buying from the Plaintiff at the lower prices. According
to Rosinsky, who was acting pursuant to an agreement with Prairie Farms
and the other Defendants, the Plaintiff could only sell to Burnham
Healthcare and Presidential Pavilion at or above minimum prices
established by Prairie Farms.
Attached to the Plaintiff’s Amended Complaint is a facsimile cover
sheet from Neal Rosinsky to Patrick Izzo on behalf of the Plaintiff, dated

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June 19, 2007, enclosing a two-page price list for dairy products sold to the
IIT Group (the group of 30 nursing homes) after July 2, 2007. The
Plaintiff claims to have received similar price lists and similar cover memos
before and after June 19, 2007.
The Plaintiff alleges that if it had been allowed to bid to supply Prairie
Farms liquid milk and related dairy products to the other 28 nursing homes
within this group, at the approximate prices the Plaintiff was selling those
products within the four-county (Will, Cook, Dupage and Lake) area, the
Plaintiff would have obtained contracts to sell all the Prairie Farms liquid
milk and related dairy products to all 30 nursing homes with the EKS/IIT
SourceTech market. The Plaintiff claims this would have resulted in sales
by the Plaintiff to the nursing homes of more than $60,000 per month,
$720,000.00 per year, which would have generated profits for the Plaintiff
in excess of $144,000.00 per year.
Based on this alleged conduct, the Plaintiff asserts that each
Defendant has acted pursuant to a common scheme, agreement and
conspiracy. Twenty-eight of the 30 nursing homes within the market paid

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higher prices for milk, resulting in damages. The Plaintiff suffered damages
in excess of $144,000.00 per year due to the loss of contracts and sales.
The Plaintiff further alleges that each Defendant acted intentionally
to restrain the Plaintiff from competing on the basis of price and to bar the
Plaintiff from competing for business in order to maintain higher prices to
the 30 nursing homes within the market dominated by Prairie Farms, thus
increasing profits to the Defendants at the expense of the 30 nursing
homes.
Although the Plaintiff does not explain why the Amended Complaint
limits the Nursing Home Market to “a group of 30 nursing homes which
received management services from EKS Management and Marketing
services from IIT SourceTech” and does not include other nursing homes
or similar businesses, the Amended Complaint includes a number of
allegations relating to the actions of Neal Rosinsky, on behalf of the
Defendants, which support the Plaintiff’s assertion that it was not
permitted to bid on the contracts with any of the nursing homes. For the
reasons discussed in connection with the School District Market, the Court

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concludes that Plaintiff has sufficiently alleged an antitrust market with
respect to the 30 nursing homes within the four- county area.
To the extent that Defendants argue that Plaintiff’s allegation of harm
to intraband competition alone–injury to competition for the defendant’s
product–is insufficient to allege harm, such allegations of resale price
maintenance are to be judged by the rule of reason. See Leegin, 551 U.S. at
881.

The Plaintiff must show that the alleged agreement has an

anticompetitive effect on the applicable market. See Agnew v. National
Collegiate Athletic Ass’n, 683 F.3d 328, 335 (7th Cir. 2012). Here, the
Plaintiff has alleged that Prairie Farms controlled the liquid milk and
related products market for the School District Market and the Nursing
Home Market in the four-county area. Based on the current record, the
Court is unable to determine whether competition was unreasonably
restrained.
The Court concludes that, as with the School District Market, the
Plaintiff has alleged consumer injury based on its allegation that
Defendants’ actions have resulted in higher prices to the Nursing Home

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Market.
III. CONCLUSION
This Court recognizes that “proceeding to antitrust discovery can be
expensive,” see Twombly, 550 U.S. at 558, and thus antitrust complaints are
subject to increased scrutiny “to spare defendants the expense of responding
to bulky, burdensome discovery unless the complaint provides enough
information to enable an inference that the suit has sufficient merit.” See
Text Messaging Antitrust Litigation, 630 F.3d at 625. While the Amended
Complaint could be more specific, it does include some factual matter that
it beyond mere legal conclusions and a simple recitation of the elements.
Although it is difficult to determine at this stage of the litigation
whether there is a “nonnegligible probability that the claim is valid,” the
Court concludes that Plaintiff’s Amended Complaint contains just enough
allegations to withstand the Defendants’ Motion to Dismiss.
Ergo, the Motion of Defendants Prairie Farms Dairy, Inc., PFD
Supply Corp. and Muller-Pinehurst Dairy to Dismiss the Plaintiff’s
Amended Complaint [d/e 22] is DENIED.

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This action is referred to United States Magistrate Judge Byron G.
Cudmore for the purpose of scheduling a discovery conference.
ENTER: October 4, 2013
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

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