TheMLSonline.com,Inc. et al v. Regional Multiple Listing Service of Minnesota, Inc. et al
Filing
42
MEMORANDUM OPINION AND ORDER granting 18 Motion to Dismiss; granting 26 Motion to Dismiss (Written Opinion). Signed by Judge Richard H. Kyle on 1/5/12. (ds)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TheMLSonline.com, Inc. and
Keith Castonguay,
Plaintiffs,
Civ. No. 11-2455 (RHK/SER)
MEMORANDUM OPINION
AND ORDER
v.
Regional Multiple Listing Service of
Minnesota, Inc., Minnesota Association
of Realtors, Edina Realty, Inc., Henry
Brandis, John Mosey, and Aaron Dickinson,
Defendants.
David T. Schultz, Jason A. Lien, Maslon Edelman Borman & Brand, LLP, Minneapolis,
Minnesota, for Plaintiffs.
Jack R. Bierig, Sidley & Austin LLP, Chicago, Illinois, and Christopher P. Renz,
Thomsen & Nybeck, PA, Bloomington, Minnesota, for Defendants Regional Multiple
Listing Service of Minnesota, Inc., Minnesota Association of Realtors, and John Mosey.
Mark R. Bradford, Bassford Remele, PA, Minneapolis, Minnesota, for Defendants Edina
Realty, Inc., Henry Brandis, and Aaron Dickinson.
INTRODUCTION
In this action, real-estate agent Keith Castonguay and his brokerage firm,
TheMLSonline.com, Inc. (“MLSOnline”),1 allege that Defendants have engaged in an
unlawful combination or conspiracy in restraint of trade and breached two settlement
1
Although Castonguay and MLSOnline are both plaintiffs in this action, their claims are asserted
jointly and their interests are aligned. Accordingly, for ease of reference, the Court hereinafter
refers to them in the singular as “Plaintiff” unless otherwise noted.
agreements. Defendants are trade associations and individuals involved in the real-estate
business in the Twin Cities metropolitan area. Plaintiff claims that Defendants have
conspired to file multiple ethics complaints against him in an effort to ultimately cut off
his access to listings and drive him out of business. Defendants have filed two Motions
to Dismiss. For the reasons set forth below, the Court will grant those Motions, dismiss
Plaintiff’s antitrust claim, and decline to exercise supplemental jurisdiction over the
remaining state-law claims.
BACKGROUND
I.
The parties
Plaintiff Castonguay is a real-estate agent who works out of Champlin, Minnesota.
He is the owner and president of the brokerage firm MLSonline. In 2001, Plaintiff
developed a business model based heavily upon internet marketing. He operates a
website, www.themlsonline.com, through which customers can search real-estate listings.
In addition to this website, Plaintiff also owns a number of other domain names
containing the term “mls,” a common abbreviation for “multiple listing service.” He uses
strategies such as registering URL addresses with “mls” in their names and purchasing
keyword advertising to help drive business to his website. Plaintiff was among the first
in the Twin Cities market to employ these strategies, but they are not unique to him; for
instance, a National Association of Realtors (“NAR”) magazine recommended
purchasing URL addresses containing the phrase “mls” in 2002.
Defendant Regional Multiple Listing Service (“RMLS”) is operated by the
Minneapolis Area Association of Realtors (“MAAR”) and the St. Paul Area Association
2
of Realtors (“SPAAR”). It maintains a comprehensive database of real estate listed for
sale in the Twin Cities area and western Wisconsin. RMLS members submit listing
information and may re-post one another’s listings on their websites through a reciprocity
agreement. RMLS’s database is the only comprehensive compilation of listings in the
geographical market it serves. In order to obtain access, a real-estate agent must be a
member of RMLS, which requires the agent to be licensed in Minnesota or Wisconsin
and be a “Realtor,” meaning the agent must not only be licensed but must also belong to
the realtor association(s) for the geographical area in which that agent works. Defendant
John Mosey is the President of RMLS.
Defendant Minnesota Association of Realtors (“MNAR”) is a trade association of
realtors who do business in Minnesota. It is part of a three-tiered system of realtor
associations in the Twin Cities area, which also comprises local associations and the
national association. A real-estate agent desiring to join MNAR must also join the local
association (such as MAAR or SPAAR) and NAR. MNAR has adopted the NAR Code
of Ethics, and it has a Professional Standards Committee in place to enforce the Code and
assure compliance with its terms.
Defendant Edina Realty is a large real-estate brokerage based in Edina, Minnesota.
Two of its agents, Henry Brandis and Aaron Dickinson, are also Defendants in this
action. Brandis is a Senior Vice President at Edina Realty, serves as Vice-Chair of the
RMLS Board of Governors, and holds a seat on MNAR’s Professional Standards
Committee. Dickinson is a member of MNAR’s Professional Standards Committee,
RMLS’s Agent Advisory Committee, and MAAR’s board of directors.
3
Members of MNAR and RMLS directly compete with one another in the realestate market. Plaintiff is a member of both organizations, as are Brandis and Dickinson.
II.
Prior litigation
The parties to this action have been involved in previous litigation. Edina Realty
commenced an action2 against MLSonline in 2004, challenging its purchase and use of
the keyword “Edina Realty” in various online search engines. Brandis was actively
involved in the lawsuit on behalf of Edina Realty. The case was resolved through a
confidential settlement agreement in 2006 (the “2006 Agreement”), which specifically set
forth how MLSonline could use the words “Edina Realty” in future online marketing.
The 2006 Agreement also contained a mutual release of claims.
Following the resolution of Edina Realty’s action against MLSonline, the RMLS
Board of Governors (of which Brandis was a member) adopted Rule 13, which prohibited
RMLS members from using the phrases “mls” or “multiple listing service” in their firm
names or website domain names because doing so could be “potentially misleading to
consumers and damaging to the MLS brand.” Pursuant to its terms, any member
violating Rule 13 could be fined $1,000 per day and lose access to the RMLS database.
Believing he had been targeted by Rule 13’s adoption, Plaintiff commenced an antitrust
lawsuit3 against RMLS and sought a temporary restraining order to prevent its
enforcement against him. Before the Court determined that issue, however, the parties
2
Edina Realty Inc. v. TheMLSonline.com, Inc., No. 04-cv-4371 (JRT/FLN).
3
TheMLSonline.com et al. v. Regional Multiple Listing Service of Minn., Inc., No. 06-cv-3550
(DWF/SRN).
4
entered into a settlement agreement (the “2007 Agreement”).
Pursuant to the 2007 Agreement, Plaintiff was exempted from many of Rule 13’s
requirements and could continue using his established business name so long as a
disclaimer was posted on MLSonline’s website clarifying that the firm “is not a Multiple
Listing Service.” The Agreement further provided that Rule 13 did not prohibit the
phrase “mls” from simply appearing on Plaintiff’s website. Like the 2006 Agreement,
the 2007 Agreement contained a broad release, which provided:
The Parties fully and finally release and forever discharge each other from
any and all claims, demands, causes of action, suits, debts, charges,
damages, expenses incurred in litigation, relief of any kind or nature, suits
and proceedings of any kind, at law or in equity, in contract, tort or by
statute, including but not limited to all rights in and to such matters that
they now have, may have, or that might subsequently accrue to them
(whether known or unknown), arising out of, related to, or connected with,
directly or indirectly, the Lawsuit.
The 2007 Agreement purported to bind not only MLSonline and RMLS, but also any
affiliates, shareholders, officers, directors, employees, representatives, agents, or others
acting on behalf of either party. Defendant Mosey signed on behalf of RMLS.
III.
Ethics complaints
Article 12 of NAR’s Code of Ethics, as amended in 2008, requires realtors to be
“honest and truthful in their real estate communications” and “present a true picture in
their advertising, marketing, and other representations.” Standards of Practice modify
Article 12 and specifically address online representations. Standard 12-10 provides:
REALTORS®[’] obligation to present a true picture in their advertising and
representations to the public includes the URLs and domain names they
use, and prohibits REALTORS® from:
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1) engaging in deceptive or unauthorized framing of real estate brokerage
websites;
2) manipulating (e.g., presenting content developed by others) listing
content in any way that produces a deceptive or misleading result; or
3) deceptively using metatags, keywords or other devices/methods to
direct, drive, or divert Internet traffic, or to otherwise mislead
consumers.
Standard 12-12 further provides:
REALTORS® shall not:
1) use URLs or domain names that present less than a true picture, or
2) register URLs or domain names which, if used, would present less than
a true picture.
Neither Article 12 nor the related Standards of Practice provides criteria for determining
whether a representation is “deceptive” or “present[s] less than a true picture.”
In September 2010, Brandis and Dickinson filed an ethics complaint against
Plaintiff with MNAR (“the 2010 Complaint”), asserting that his use of “mls” in the name
of his business and his URL violated Article 12. They also claimed that his use of the
term “Edina Realty” in a link-exchange program constituted a further violation. They
attached an email from Mosey to Brandis outlining statistical information about realestate listings in Minnesota as support for their claim that Plaintiff’s website falsely
boasted that it contained “virtually all home listings for the greater Twin Cities area.”
MNAR generally handles ethics complaints against its members using procedures
set forth in an NAR Manual. The subject of a complaint is allowed to lodge objections,
and Plaintiff objected to the 2010 complaint on multiple grounds, including its timeliness.
6
The Manual requires ethics complaints to be filed within 180 days after the complainedof facts became known or could have been known through exercise of reasonable
diligence, and Plaintiff argued that Brandis and Dickinson knew his website and business
name contained the term “mls” for more than 180 days before filing their complaint.
After receiving Plaintiff’s objections, MNAR instituted a bifurcated procedure,
which was not expressly provided for in the Manual. Specifically, it required Plaintiff to
first present his timeliness objection before an appeal panel. The hearing on his objection
was not a full hearing, and Plaintiff was not permitted to cross-examine Brandis or
Dickinson. The appeal panel rejected Plaintiff’s timeliness objection. Following this
decision, the Professional Standards Committee assembled a different panel to conduct a
hearing on the substance of the complaint. Plaintiff was not allowed to re-raise the
timeliness issue at this hearing. The panel ultimately concluded in February 2011 that
Plaintiff had violated the Ethics Code. He was fined $5,000, issued a three-year letter of
reprimand, and required to attend classes on ethics and social media. Plaintiff appealed,
and the appeal was denied on April 14, 2011; however, he continued to use his business
name and website, and MNAR took no action to stop him from doing so.
On June 30, 2011, Brandis and Dickinson filed another ethics complaint against
Plaintiff (“the 2011 complaint”) making identical allegations about his use of the terms
“mls” and “Edina Realty.” Plaintiff again objected to the its timeliness. He also objected
that it was repetitive and an unauthorized use of the ethics proceedings, based upon a rule
providing that members shall not face multiple disciplinary hearings arising from the
same transactions or events. In August 2011, MNAR informed Plaintiff that it intended
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to follow the same bifurcated procedure—first resolving his objections and then
addressing the substance of the allegations—as it had for the 2010 complaint.
Penalties for violating the Code of Ethics are cumulative and may become more
severe with each subsequent violation. Plaintiff believes the likelihood he will be
suspended (and thus lose access to the RMLS database) increases with each successive
complaint. Accordingly, he commenced this action on August 26, 2011, and sought to
prevent adjudication of the 2011 complaint and the filing of any additional complaints
related to the same conduct.4 Defendants have now filed two Motions to Dismiss—one
by Edina Realty, Brandis, and Dickinson (“the Edina Defendants”), and the other by
RMLS, MNAR, and Mosey (“the RMLS Defendants”). Both Motions assert that
Plaintiff has failed to state a claim pursuant to Rule 12(b)(6) and seek dismissal of the
Complaint in its entirety. The Motions have been fully briefed, the Court heard oral
argument on December 20, 2011, and they are ripe for decision.
STANDARD OF REVIEW
The Supreme Court set forth the standard for evaluating a motion to dismiss in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To avoid dismissal, a complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Id. at
547. A “formulaic recitation of the elements of a cause of action” will not suffice. Id. at
555; accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Rather, the complaint must
set forth sufficient facts to “nudge[] the[] claim[] across the line from conceivable to
4
Initially, Plaintiff sought a temporary restraining order. However, the parties reached a
stipulation whereby MNAR agreed not adjudicate the complaint during the pendency of this
lawsuit, thus mooting the requested preliminary injunctive relief.
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plausible.” Twombly, 550 U.S. at 570. When reviewing a motion to dismiss, the Court
“must accept [the] plaintiff’s specific factual allegations as true but [need] not . . . accept
a plaintiff’s legal conclusions.” Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir.
2010) (citing Twombly, 550 U.S. at 556). The complaint must be construed liberally,
and any allegations or reasonable inferences arising therefrom must be interpreted in the
light most favorable to the plaintiff. Twombly, 550 U.S. at 554–56.
ANALYSIS
I.
Sherman-Act claim (Count I)
Both groups of Defendants argue that Plaintiff has failed to state an antitrust claim
under Section 1 of the Sherman Act. Specifically, they argue that Plaintiff cannot show
restraint of trade or harm to competition, which is the only type of injury the antitrust
laws seek to remedy. Relatedly, the Edina Defendants assert that Plaintiff lacks standing
because he has not pleaded a cognizable “antitrust injury.”
To be a proper plaintiff in an antitrust action, one must show an antitrust injury—
that is, an “injury of the type that the antitrust laws were intended to prevent and that
flows from that which makes defendants’ acts unlawful.” In re Canadian Import
Antitrust Litig., 470 F.3d 785, 791 (8th Cir. 2006) (quoting Brunswick Corp. v. Pueblo
Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)). The Eighth Circuit has held that “antitrust
injury is a threshold issue that plaintiffs must establish in order to have standing to sue
under the antitrust laws.” Fisher v. NWA, Inc., 883 F.2d 594, 597 n.5 (8th Cir. 1989);
accord Midwest Commc’ns, Inc. v. Minn. Twins, Inc., 779 F.2d 444, 449 (8th Cir. 1985)
(“[A]ntitrust standing requirements go beyond injury in fact; the court must also
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determine whether the plaintiff, even if injured, is a proper party to bring the action.”).
The inquiry into whether plaintiff has suffered an antitrust injury may be “dispositive.”
Id. at 450 (“[I]f there is no showing of injury, or if the injury alleged is not an ‘antitrust
injury,’ the plaintiff does not have a claim cognizable under the antitrust laws.”).
Plaintiff argues that the Edina Defendants’ standing argument “confuses ‘antitrust
injury’ for the purpose of determining standing with the market-injury element” of a
substantive claim under the Sherman Act. (Mem. in Opp’n 28 (emphasis added).) He
relies upon decisions from several circuits distinguishing between the injury-tocompetition element of a substantive Sherman-Act claim and the showing of injury
required for standing. E.g., Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 275 n.2
(3d Cir. 1999) (“The District Court erred by incorporating the issue of anticompetitive
market effect into its standing analysis, confusing antitrust injury with an element of a
claim under section 1 of the Sherman Act.”); Doctor’s Hosp. of Jefferson, Inc. v. Se.
Med. Alliance, Inc., 123 F.3d 301, 305 (5th Cir. 1997) (distinguishing between “antitrust
injury and injury to competition, the latter of which is often a component of substantive
liability”). The two concepts are closely related, however, and the Eighth Circuit and
decisions from this District largely conflate the two and incorporate an injury-tocompetition requirement into the analysis of antitrust standing. E.g., Midwest
Commc’ns, 779 F.2d at 450 (noting in its discussion of antitrust injury for purposes of
determining standing that “Congress enacted the antitrust laws to protect competition, not
competitors”); Fair Isaac Corp. v. Experian Info. Solutions, Inc., 645 F. Supp. 2d 734,
751 (D. Minn. 2009) (“[M]erely showing that [defendant] targeted and caused injury to
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[plaintiff] is insufficient to show an antitrust injury necessary to establish antitrust
standing.”).
In this Court’s view, Plaintiff has at the very least failed to show injury to
competition for purposes of stating a substantive claim under the Sherman Act. Thus,
even if the standing analysis does not require a showing of injury to competition, his
antitrust claim cannot survive. Section 1 of the Sherman Act declares unlawful “[e]very
contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade
or commerce.” 15 U.S.C. § 1. To establish such a claim, Plaintiff must show: “(1) that
there was a contract, combination, or conspiracy; (2) that the agreement unreasonably
restrained trade . . . ; and (3) that the restraint affected interstate commerce.” Minn.
Ass’n of Nurse Anesthetists v. Unity Hosp., 5 F. Supp. 2d 694, 703 (D. Minn. 1998)
(Montgomery, J.); accord Insignia Sys., Inc. v. News Am. Mktg. In-Store, Inc., 661 F.
Supp. 2d 1039, 1062 (D. Minn. 2009) (Tunheim, J.). The dispute here centers on the
second element, unreasonable restraint of trade, which can be established “under either a
per se rule of illegality or a rule of reason analysis.” Unity Hosp., 5 F. Supp. 2d at 703.
Plaintiff attempts to argue that he has alleged a per se violation of the Sherman
Act. Courts have recognized that “[c]ertain types of restraint are so inherently
anticompetitive that they are illegal per se, without inquiry into the reasonableness of the
restraint or the harm caused.” Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d
554, 558 (8th Cir. 1998). Practices that have been deemed illegal per se include group
boycotts, price fixing, and tying arrangements. Id. (citations omitted). Plaintiff contends
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that he has stated a claim for a “group boycott,” and thus his claim should survive the
instant Motions. The Court cannot agree.
A group boycott is “a narrow category of per se violation, ‘limited to cases in
which firms with market power boycott suppliers or customers in order to discourage
them from doing business with a competitor.’” Unity Hosp., 208 F.3d at 659 (quoting
FTC v. Ind. Fed’n of Dentists, 476 U.S. 447, 458 (1986)). And the category is “not to be
expanded indiscriminately.” Ind. Fed’n of Dentists, 476 U.S. at 458-59.5 Plaintiff has
not alleged facts regarding Defendants’ “market power,” nor has he suggested any
attempts by Defendants to influence the behavior of customers or suppliers. Moreover,
other courts to consider antitrust claims in the context of realtor-association regulations
have applied a rule-of-reason analysis. See, e.g., Keller v. Greater Augusta Ass’n of
Realtors, Inc., 760 F. Supp. 2d 1373, 1377 (S.D. Ga. 2011); Austin Bd. of Realtors v. ERealty, Inc., No. Civ. A-00-CA-154, 2000 WL 34239114, at *4 (W.D. Tex. Mar. 30,
2000). In short, Plaintiff has not alleged a conspiracy constituting a group boycott.
5
At the December 20 hearing on these Motions, Plaintiff advanced a definition of group boycott
as “concerted action by the Defendants to deprive Plaintiff of a valuable business service they
need in order to compete” and argued that he has shown such a violation. When the Court
inquired about the source of this definition, counsel explained that it comes from the “Multi
Realty” case (Hearing Tr. 31), referring (presumably) to United States v. Realty Multi List, Inc.,
629 F.2d 1351, 1361 (5th Cir. 1980). In that case, the court quoted the following language from
a 1963 Supreme Court decision involving an antitrust claim against the New York Stock
Exchange: “The concerted action of the Exchange and its members here was, in simple terms, a
group boycott depriving petitioners of a valuable business service which they needed in order to
compete . . . .” Id. (emphasis added) (quoting Silver v. N.Y. Stock Exch., 373 U.S. 341, 347
(1963)). That statement, however, simply described the nature of the group boycott in that case;
it did not define what constitutes a group boycott. Accordingly, the Court rejects Plaintiff’s
definition and follows the one set forth by the Eighth Circuit in Unity Hospital and derived from
the Supreme Court’s Indiana Dentists decision. See 208 F.3d at 659.
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In the absence of a per se violation, an allegedly unreasonable restraint of trade
must be analyzed using the rule of reason. To establish a violation under this approach,
Plaintiff must show an anticompetitive effect on the relevant market. E.g., Double D,
136 F.3d at 558-59 (“This ‘rule of reason’ analysis involves an inquiry into the market
structure and the defendant’s market power in order to assess the actual effect of the
restraint.”); Nat’l Ass’n of Review Appraisers, 64 F.3d at 1134-35 (“In the absence of [] a
per se violation of the antitrust laws, however . . . [o]nly anticompetitive behavior . . . is
proscribed.”). It thus requires a showing of harm to competition, not merely harm to an
individual or business. E.g., Keller, 760 F. Supp. 2d at 1377 (“To prove an
anticompetitive effect on the market, a plaintiff must either prove that the challenged
conduct has ‘an actual detrimental effect’ on competition or that the conduct had ‘the
potential for genuine adverse effects on competition.’”). This reflects the long-standing
principle that federal antitrust laws exist for “the protection of competition, not
competitors.” Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962); accord Nat’l
Ass’n of Review Appraisers & Mortg. Underwriters, Inc. v. Appraisal Found., 64 F.3d
1130, 1135 (8th Cir. 1995) (“Only anticompetitive behavior, i.e. behavior that tends to
lessen the potentiality for society to realize the benefits of the competitive process, is
proscribed.”).
In the Court’s view, even accepting all of his allegations as true, Plaintiff has
stated no claim of anticompetitive effect. At most, he alleges that he was the target of a
conspiracy aimed at driving him out of the real-estate market. The Complaint is replete
with allegations of how Plaintiff will be harmed—yet, even if these allegations are all
13
true, harm to Plaintiff does not in and of itself establish an antitrust injury. Fair Isaac,
645 F. Supp. 2d at 750-51 (“Nor does the fact that the alleged goal of the conspiracy was
to ‘eliminate’ Fair Isaac from the credit scoring industry automatically establish injury of
the type the antitrust laws are designed to protect.”); accord, e.g., Brooke Grp. Ltd. v.
Brown & Williamson Tobacco Corp., 509 U.S. 209, 226 (1993) (“Even an act of pure
malice by one business competitor against another does not, without more, state a claim
under the federal antitrust laws.”); Richter Concrete Corp. v. Hilltop Concrete Corp., 691
F.2d 818, 823 (6th Cir. 1982) (“Anticompetitive conduct is conduct designed to destroy
competition, not just to eliminate a competitor.”). Moreover, Plaintiff has not actually
been forced out of the industry or stymied in his ability to compete. To date, the only
injury he has suffered as a result of the purported “conspiracy” to file and prosecute
ethics complaints against him was a $5,000 fine and reprimand following the 2010
complaint. He remains a member of the MNAR and still has access to RMLS’s listings.
Although a second ethics complaint has been filed, there is no indication how it will be
resolved, whether it might result in his suspension, or whether any additional complaints
might follow. Indeed, the 2011 complaint may be dismissed without any further
consequence to Plaintiff pursuant to MNAR’s rule against facing repeat hearings arising
from the same events, one of the objections Plaintiff has already raised in that
proceeding. In the absence of any anticompetitive effect, Plaintiff cannot state a claim
for violation of the Sherman Act. Accordingly, that claim will be dismissed.
II.
Remaining state-law claims (Counts II-VII)
Having concluded that the federal antitrust claim must be dismissed, the Court will
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not reach the remaining state-law claims. The Court’s subject-matter jurisdiction over
this case is premised on Plaintiff’s federal claim for violation of the Sherman Act;
jurisdiction over the related state-law claims was invoked solely pursuant to 28 U.S.C.
§ 1367, which provides for supplemental jurisdiction over state-law claims that form part
of the same “case or controversy” over which the Court otherwise has jurisdiction.
Where all federal claims are eliminated prior to trial, the balance of factors to be
considered in deciding whether to exercise supplemental jurisdiction over a pendent
state-law claim typically militates against exercising such jurisdiction. E.g., Johnson v.
City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004) (citing Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988)). Such is the case here. Accordingly, the Court
declines to exercise supplemental jurisdiction over Plaintiff’s remaining claims and they
will be dismissed without prejudice.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants’ Motions (Doc. Nos. 18, 26) are GRANTED. Count I of
Plaintiff’s Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE, and Counts IIVII are DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 5
, 2012
s/ Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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