Dodge Data & Analytics LLC v. iSqFt, Inc. et al
Filing
52
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' COUNTERCLAIM (Doc. 43 ). However, Defendants are granted leave to amend the counterclaim within 21 days of the date of this Order. Signed by Judge Timothy S. Black on 9/29/2016. (mr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DODGE DATA & ANALYTICS LLC,
Plaintiff,
vs.
iSqFt, INC., et al.,
Defendants.
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Case No. 1:15-cv-698
Judge Timothy S. Black
ORDER GRANTING PLAINTIFF’S MOTION TO DISMISS
DEFENDANTS’ COUNTERCLAIM (Doc. 43)
This civil action is before the Court on Plaintiff’s motion to dismiss Defendants’
Counterclaim (Doc. 43), 1 and the parties’ responsive memoranda (Docs. 32, 33). 2
I. BACKGROUND FACTS
For purposes of this motion to dismiss, the Court must: (1) view the counterclaim
in the light most favorable to the Defendants; and (2) take all well-pleaded factual
allegations as true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
1
Defendants include: iSqFt, Inc., Construction Market Data Group, LLC (“CMD”),
Construction Data Corporation, LLC (“CDC”), and BidClerk, Inc. (collectively “Defendants”).
iSqFt is a software-as-a-service company that licenses access to its construction software and
databases to general contractors, subcontractors, manufacturers, and suppliers in the North
American commercial construction industry. iSqFt acquired BidClerk in October 2014, CDC in
April 2015, and CMD in August 2015. (Doc. 28 at ¶¶ 45-46).
2
Defendants request oral argument. (Doc. 46 at 1). The Court finds that the pleadings are clear
on their face, and that oral argument is not necessary. See Whitescarver v. Sabin Robbins Paper
Co., Case No. C-1-03-911, 2006 U.S. Dist. LEXIS 51524, at *7 (S.D. Ohio July 27, 2006) (J.
Dlott) (“Local Rule 7.1(b)(2) leaves the court with discretion to grant a request for oral
argument.”).
Dodge Data provides Construction Project Information (“CPI”). (Doc. 28 at ¶ 20).
CPI consists of “construction project information, building product information,
construction plans and specifications, industry news, market research, and industry trends
and forecasts.” (Id.) Dodge Data sells its nationwide CPI product to customers “through
web-based programs accessed by those customers who pay a subscription fee to Dodge.”
(Id. at ¶ 24). The subscription “depend[s] upon the level of detail and geographical area
in which the contractor [i]s interested, as well as the number of licenses purchased by the
contractor.” (Id. at ¶ 26).
Dodge Data claims that Defendants are attempting to monopolize the market for
nationwide CPI in the United States and Canada (the relevant market), in violation of the
Sherman Antitrust Act. Dodge Data alleges that Defendants’ goal is to consolidate into
one entity with market power, drive Dodge Data from the market, and acquire a 100%
market share so that they can charge monopoly prices, reduce output, and stifle
innovation to the detriment of consumers.
Dodge Data alleges that Defendants are attempting to achieve their goal through
anticompetitive conduct, including a predatory pricing scheme in which they have offered
prices to Dodge Data’s customers (but not to their own customers), that are more than
85% below Dodge Data’s prices and below any appropriate measure of Defendants’
costs. Defendants have also allegedly stolen and used Dodge Data’s confidential
customer information, infringed Dodge Data’s trademarks, abused restrictive covenants,
2
and tortiously interfered with Dodge Data’s business relationships. 3
Defendants disagree with virtually all of these assertions. However, for purposes
of their counterclaim (which is expressly conditional on the Court's acceptance of
Dodge's allegations and arguments), Defendants treat these assertions as if they were
true. Defendants allege that Dodge has admitted that it has priced below its own costs in
order to win or retain customers in the “Nationwide CPI” market. Specifically, Dodge
admits that it has “discount[ed] to unsustainable, unprofitable (i.e., below its costs)
levels” to keep one or more customers. (Doc. 28 at ¶ 63; Doc. 32 at 18-19). Defendants’
investigation has revealed a number of instances in which Dodge slashed its prices to
roughly half of what Defendants were quoting to potential customers. For example:
• Dodge recently signed a 3-year deal with a customer after quoting a price of
approximately $60,000 per year, significantly less than half of Defendants’
existing contract price of $142,000 per year. (Doc. 35 at ¶ 13(a)).
• Defendants had a contract with another customer for $69,000 per year. Dodge
recently won the business because, according to the customer, Dodge quoted a
price that was approximately "half" of CMD's price. (Id. at ¶ 13(b)).
• Dodge quoted another customer a price of $40,000, less than half the $90,000
price that Defendants had quoted. Although Defendants were able to retain the
customer, they had to drop their price to $56,000 to do so. (Id. ¶ 13(b)). This is
3
Dodge Data alleges claims for: (1) attempt to monopolize in violation of Section 2 of the
Sherman Act; (2) conspiracy to monopolize in violation of Section 2 of the Sherman Act;
(3) conspiracy in restraint of trade in violation of Section 1 of the Sherman Act; (4) trademark
infringement of the “S” (Sweets) mark; (5) unfair competition concerning the “S” (Sweets)
mark; (6) dilution of the Sweets mark under Ohio law; (7) violation of the Ohio Deceptive Trade
Practices Act relating to the “S” (Sweets) mark; (8) trademark infringement of the BidPro mark;
(9) federal unfair competition concerning the BidPro mark; (10) violation of the Deceptive Trade
Practices Act relating to the BidPro mark; (11) tortious interference with prospective business
relationships; (12) trespass to chattels; and (13) declaratory judgment.
3
noteworthy in that it also shows that customers are willing to pay a premium for
Defendants' subscription service because their data and user platform are superior
to Dodge's.
• Furthermore, since filing the counterclaim, Defendants have learned of several
additional instances in which customers informed them that Dodge was quoting
prices significantly below Defendants' prices. In many cases, the customers sign
deals with Defendants anyway, and pay a premium over Dodge's quoted price.
Based on these facts and Dodge’s admissions that it was pricing below its costs,
Defendants maintain that they have properly pleaded a counterclaim against Dodge for
attempt to monopolize. Conversely, Dodge argues that a comparison between its
amended complaint and Defendants’ counterclaim is instructive. Dodge filed a 29-page,
189-paragraph Amended Complaint (Doc. 28), while Defendants filed a 4-page, 24
paragraph counterclaim. (Doc. 35).
II.
STANDARD OF REVIEW
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the
sufficiency of the complaint and permits dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)
requires that the complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation
4
of the elements of a cause of action will not do.’” Id. (citing Twombly, 550 U.S. at 555).
In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a
legal conclusion couched as a factual allegation[.]’” Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative level[.]” Id.
Accordingly, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678. A claim is plausible where “plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief,’” and the case shall be dismissed. Id. (citing Fed. Rule Civ.
P. 8(a)(2)).
III.
ANALYSIS
Defendants allege a counterclaim for attempted monopolization in violation of
Section 2 of the Sherman Act. 15 U.S.C. § 2. A claim for attempted monopolization
requires: “(1) a specific intent to monopolize; (2) anti-competitive conduct; and (3) a
dangerous probability of success.” Tarrant Serv. Agency, Inc. v. Am. Standard, Inc., 12
F.3d 609, 615 (6th Cir. 1993). Market strength that approaches monopoly power,
5
meaning the ability to control prices and exclude competition, is a necessary element for
showing a dangerous probability of achieving monopoly power. Id. However, courts
have not adopted a uniform standard regarding the threshold of what it takes to establish
a monopoly power. “[M]arket share alone, however, is not enough to determine a firm’s
capacity to achieve monopoly . . . [t]he real test is whether [the defendants] possessed
sufficient market power to achieve its aims.” Richter Concrete Corp. v. Hilltop Concrete
Corp., 691 F.2d 818, 826 (6th Cir. 1982).
A.
Specific Intent to Monopolize
“Specific intent to monopolize may be inferred from evidence of anticompetitive
conduct, but not from legitimate business practices aimed only at succeeding in
competition.” Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413, 1432
(6th Cir. 1990).
Defendants argue that “an intent to destroy competition in the Relevant Market
can be inferred from anticompetitive conduct.” (Doc. 35 at ¶ 11). However, this
statement is only a repetition of what Dodge alleged in its Amended Complaint about
Defendants’ scheme, and is not an allegation by the Defendants that Dodge itself ever
had an intent to destroy competition in the Relevant Market. The only other reference to
“intent” in Defendants’ counterclaim is a statement that “[i]f Dodge’s own allegations
and arguments are accepted as true, then Dodge had and continues to have the specific
intent to destroy competition in the Relevant Market…” (Id. at ¶ 21).
6
However, if Dodge’s allegations and arguments are accepted as true, then Dodge
would be entitled to summary judgment. Moreover, the allegations that would be
deemed resolved in Dodge’s favor would include the fact that: (1) Defendants offered
prices to Dodge’s customers—but not to their own customers—that were as much as 85%
below Dodge’s prices to those same customers; (2) Defendants were told by their chief
executive officer to do “whatever it takes to disrupt Dodge’s business”; (3) Defendants
used the Stolen Customer Information to target Dodge’s customers; (4) Defendants
provided bonuses to their sales people for converting Dodge’s customers; (5) Defendants
instructed their inside sales force to convert Dodge’s customers no matter the cost;
(6) Defendants priced below their variable and total costs; (7) Dodge suffered substantial
damages as a result of Defendants’ predatory pricing scheme; (8) Defendants had a
specific intent to monopolize the Nationwide CPI market; and (9) Defendants had a
dangerous probability of injuring competition. (Doc. 28 at ¶¶ 58-66, 98).
In sum, the Court concludes that merely stating that “Dodge had the intent to
monopolize” is insufficient, rather Defendants need to plead actual facts showing that
intent. The fact that Dodge was allegedly forced to respond to Defendants’ predatory
prices does not demonstrate such an intent.
B.
Anticompetitive Conduct
Anticompetitive conduct is any conduct that “attempt[s] to exclude rivals on some
basis other than efficiency.” Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S.
585, 605 (1985). “Anticompetitive conduct can come in too many different forms, and is
7
too dependent upon context, for any court or commentator ever to have enumerated all
the varieties.” Spirit Airlines, Inc. v. Nw. Airlines, Inc., 431 F.3d 917, 951 (6th Cir.
2005).
The sole form of anticompetitive conduct alleged in Defendants’ counterclaim is
that “Dodge has engaged in anticompetitive conduct by engaging in predatory pricing.”
(Doc. 35 at ¶ 20).
1.
Below-cost pricing
A defendant seeking to plead predatory pricing must plead that “the prices
complained of are below an appropriate measure of its rival’s costs” and that the plaintiff
had a “dangerous probability … of recouping its investment in below-cost prices.”
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222, 224
(1993).
[W]e hold that to establish predatory pricing a plaintiff must prove
that the anticipated benefits of defendant’s price depended on its
tendency to discipline or eliminate competition and thereby enhance
the firm’s long-term ability to reap the benefits of monopoly power.
If the defendant’s prices were below average total cost but above
average variable cost, the plaintiff bears the burden of showing
defendant’s pricing was predatory. If, however, the plaintiff proves
that the defendant’s prices were below average variable cost, the
plaintiff has established a prima facie case of predatory pricing and
the burden shifts to the defendant to prove that the prices were
justified without regard to any anticipated destructive effect they
might have on competitors.
Spirit Airlines, Inc., 431 F.3d at 938. 4
4
See also Superior Prod. P’ship v. Gordon Auto Body Parts Co., 784 F.3d 311, 326 (6th Cir.
2015) (plaintiffs were allowed “the flexibility to apply a cost-based test other than average
variable cost”).
8
Defendants claim that Dodge has “admitted that it engaged in predatory pricing.”
(Doc. 35 at ¶ 12). The Court disagrees. Dodge never “admit[ed]” that it priced below
cost in order to “attract” or “win” customers, as opposed to trying to retain existing
customers. Dodge’s amended complaint states that it was “forced” to lower its prices to
unsustainable and unprofitable levels, but this is not an “admission” of “predatory
pricing.” (Doc. 35 at ¶ 63). 5 The Sixth Circuit has held that, “[i]t is not anticompetitive
for a company to reduce prices to meet lower prices already being charged by
competitors.” D.E. Rogers Assocs., Inc. v. Gardner-Denver Co., 718 F.2d 1431, 1435
(6th Cir. 1983). Defendants fail to allege any court that has ever held that defensive price
reductions in the face of a predatory pricing scheme can render the victim of the scheme
liable for predatory pricing itself. (Doc. 43 at 12).
Defendants argue that since this Court, in its April 28, 2016 Order, found that a
specific intent to monopolize on the part of Defendants could be inferred from evidence
of their anticompetitive conduct, then this Court should draw the same inference on the
part of Dodge. Defendants also point to the Court’s statement that if Defendants “were
interested in maximizing profits, there was no reason to resort to prices that were so
drastically below that which Dodge Data was offering.” (Doc. 34 at 13, n.12).
5
In its entirety, Paragraph 63 provides: “Dodge estimates that since November 2014, it has lost
customers with millions of dollars in annual sales volume as a result of iSqFt/CMD’s predatory
pricing tactics. In addition, Dodge has lost at least a million dollars more in “price erosion,”
where it was forced to discount to unsustainable, unprofitable (i.e., below its costs) levels in
order to retain a customer in response to CMD’s predatory pricing.”
9
According to Defendants, “[t]his reasoning must extend to Dodge’s conduct here.” (Id. at
15). The difference, however, is that Dodge filed a detailed, fact-laden amended
complaint that spelled out Defendants’ predatory pricing and other anticompetitive
conduct, 6 whereas Defendants filed a bare bones counterclaim. Defendants cannot
legitimately maintain that the allegations in their counterclaim should give rise to the
same inferences as the numerous detailed allegations in Dodge’s amended complaint.
Defendants argue that the notion that Dodge is meeting competition is not in the
counterclaim and such an affirmative defense cannot be considered on a pleading motion.
Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (“[A] motion under Rule
12(b)(6), which considers only the allegations in the complaint, is generally an
inappropriate vehicle for dismissing a claim based upon [an affirmative defense].”).
However, in Cataldo, the court noted that the use of a Rule 12(b)(6) motion, which
assumes the truth of the allegations in the complaint to seek dismissal of a complaint
based on the statute of limitations, is generally inappropriate for that purpose because the
statute of limitations is an affirmative defense—i.e., a plaintiff does not have to allege in
its complaint that its claim is not barred by the statute of limitations. Id. at 547. The
court nevertheless affirmed the dismissal of the complaint because its allegations showed
that the claim was time-barred. Id. at 552.
6
Dodge provided specific examples of Defendants’ prices compared to Dodge’s prices; alleged
that Defendants’ prices were below variable and total costs; and alleged that it lost customers
with millions of dollars in annual sales volume as a result of Defendants’ predatory pricing
tactics.
10
Here, however, Defendants have directly injected the issue of “meeting
competition” into their own counterclaim by specifically citing Dodge’s amended
complaint in their counterclaim. (Doc. 35 at ¶ 12) (“Dodge has admitted that it engaged
in predatory pricing that is below its average total cost and average variable cost). (Id. at
¶¶ 61-63). Dodge alleges in that paragraph that it lowered its price in order to retain a
customer in response to Defendants’ predatory pricing. If Defendants are alleging that
such a purely defensive price reduction constitutes predatory pricing, then Dodge is
certainly entitled to show that Defendants’ argument is wrong as a matter of law.
Defendants also rely upon paragraph 13 of their counterclaim which states:
“Furthermore, Dodge recently has been offering prices to Counterclaimants’’ customers
that are significantly below the prices charged by Counterclaimants – which Dodge has
already claimed are below Dodge’s costs. For example …” (Doc. 35 at ¶ 13). This
allegation merely alleges that Dodge has offered prices “significantly below the prices
charged by” Defendants. It does not contain an allegation that those prices were below
Dodge’s cost. Simply offering “low” prices, even prices lower than Defendants, is not
enough to satisfy Brooke Group. There must be some allegation that the price charged by
Dodge was actually below Dodge’s costs.
“[D]efendants never actually allege that Dodge’s prices were ‘below an
appropriate measure of [Dodge’s] costs.’” (Doc. 43 at 13). That, of course, is the
cornerstone of a predatory pricing case. Brooke Group Ltd., 509 U.S. at 222, 224 (a
plaintiff seeking to plead predatory pricing must plead, inter alia, that “the prices
11
complained of are below an appropriate measure of its rival’s costs” and that the
defendant had a “dangerous probability…of recouping its investment in below-cost
prices.”). Thus, without any allegation in their counterclaim that Defendants’ prices were
below Dodge’s costs, Defendants’ counterclaim fails as a matter of law.
2. Dangerous probability of recouping the investment in below-cost
pricing
The next element of the predatory pricing analysis is whether there is a dangerous
probability of recoupment, which means that the defendant could “obtain enough market
power to set higher than competitive prices, and then [could] sustain those prices long
enough to earn in excess profits what [it] earlier gave up in below-cost prices.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 590-91 (1986).
Pleading a dangerous probability of recoupment requires two showings. (Doc. 34 at 15).
First, the claimant must show a dangerous probability of successful monopolization, or,
in other words, that the scheme alleged “could plausibly ‘produc[e] the intended effects
on the firm’s rivals … [by] driving them from the market.’” Id. (quoting Brooke Group,
509 U.S. at 225). Second, the claimant must show that the defendants “could plausibly
maintain supra-competitive prices after it has eliminated its rival from the market.” Id.
Defendants alleged that “Dodge has a dangerous probability of successfully
monopolizing the Relevant Market” because, as Dodge alleged in its amended complaint,
“Dodge has a 50% share in the Relevant Market and that Relevant Market is dominated
by two competitors.” (Doc. 35 at ¶¶ 15-16, 22). However, “[a] firm that is playing
12
defense by lowering prices only to compete with the predatory pricing of another … has
no real possibility (let alone a dangerous probability) of recouping its losses by achieving
monopoly power.” (Doc. 43 at 12).
Defendants’ counterclaim used the phrase “dangerous probability” only twice:
once to summarize what Dodge alleged in its amended complaint and once to assert that
Dodge would have a dangerous probability of successfully monopolizing the market if
Dodge’s allegations were accepted as true. Defendants assert that they “have alleged that
‘Dodge has a dangerous probability of successfully monopolizing the Relevant Market,’”
and cite to paragraph 22 of their counterclaim as support. (Doc. 46 at 10). However,
paragraph 22 states:
22.
If Dodge’s own allegations and arguments are accepted as true, Dodge has
a dangerous probability of successfully monopolizing the Relevant Market.
(Doc. 35 at ¶ 22). If Dodge’s allegations and arguments are accepted as true, the
Defendants—not Dodge—have a dangerous probability of successfully monopolizing the
Relevant Market.
Defendants argue “[t]hat Dodge could drive Defendants from the market by
pricing below cost is no less plausible than Dodge’s allegations that Defendants could
drive Dodge from the market by supposedly pricing below cost.” (Doc. 46 at 11).
However, Defendants have provided no facts from which plausibility can be derived.
Defendants maintain that they are allowed to plead “hypothetically” under Rule 8(d).
(Doc. 46 at 11). Rule 8(d) allows a party to assert a claim “alternatively or
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hypothetically,” but that is not an excuse for failing to plead the essential elements of a
claim or failing to satisfy the “plausibility” requirement of Twombly and Iqbal. However,
“that a party may assert inconsistent claims or defenses [under Rule 8(d)(2) and (3)] does
not license disregard of the requisite pleading standards. Inconsistency does not doom a
claim, but implausibility does.” Weddle v. Smith & Nephew, Inc., No. 14-C-09549, 2016
U.S. Dist. LEXIS 48512, at *14 (N.D. Ill. Apr. 11, 2016). 7
Accordingly, Defendants fail to allege a dangerous probability of recoupment.
C.
Dangerous Probability of Success 8
The final element of the predatory pricing analysis is whether there is a dangerous
probability of success, or whether Defendants could “obtain enough market power to set
higher than competitive prices, and then [could] sustain those prices long enough to earn
in excess profits what they earlier gave up in below-cost prices.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 590-91 (1986). In conducting this analysis, a
court should analyze the predatory pricing scheme to determine whether the scheme
alleged could plausibly “produc[e] the intended effects on the firm’s rivals . . . [by]
driving them from the market,” and then analyze “the structure and conditions of the
relevant market” in order to determine whether defendants could plausibly maintain
7
See also Dorley v. S. Fayetter Twp. Sch. Dist., 129 F. Supp. 3d 220, 236 (W.D. Pa. 2015)
(inconsistent allegations “must still have a plausible basis grounded in fact”).
8
A “dangerous probability of success” requires “market strength that approaches monopoly
power” and an examination of “barriers to entry.” White & White, Inc. v. Am. Hosp. Supply
Corp., 723 F.2d 495, 507 (6th Cir. 1983).
14
supra-competitive prices after it has eliminated its rival from the market. Brooke Group
Ltd., 509 U.S. at 225-27. Since this analysis is a “particularly fact-intensive inquiry,”
“[c]ourts typically should not resolve [it] at the pleading stage.” Broadcom Corp. v.
Qualcomm Inc., 501 F.3d 297, 318 (3d Cir. 2007).
In the counterclaim, Defendants state that “Dodge has also alleged” that a
company with an approximately 50% market share in a market primarily dominated by
two competitors has a dangerous probability of successfully monopolizing the market.
(Doc. 35 at ¶ 15). However, without a specific allegation that Dodge had such a
dangerous probability of success, Defendants’ counterclaim is legally deficient.
Where an attempt to monopolize claim is based on predatory pricing, the
“dangerous probability of success” element of the attempt to monopolize claim involves
essentially the same analysis as the “dangerous probability of recouping” an investment
in below-cost prices that is an element of a predatory pricing claim. See, e.g., Felder’s
Collission Parts, Inc. v. Gen. Motors Co., 960 F. Supp. 2d 617, 630 (M.D. La. 2013)
(“the recoupment prong of a predatory pricing claim overlaps with the third element of
attempted monopolization”). The notion that Dodge could have a dangerous probability
of driving Defendants from the market is completely implausible. Accepting the
amended complaint as true, Dodge was simply responding defensively to Defendants’
predatory pricing. There are no facts alleged that would suggest that Dodge was trying to
eliminate Defendants as competitors.
15
Accordingly, Defendants’ counterclaim for attempted monopolization fails as a
matter of law.
D.
Leave to Amend
Rule 15(a)(2) provides that a court “should freely give leave [to amend a pleading]
when justice so requires,” but the Sixth Circuit has held that leave should be denied
where there is “undue prejudice to the opposing party or futility of the proposed
amendment.” Hayward v. Genworth Life Ins. Co., No. 1:08cv244, 2009 U.S. Dist.
LEXIS 4189, at *3 (S.D. Ohio Jan. 22, 2009). “[T]he thrust of Rule 15 is to reinforce the
principle that cases ‘should be tried on their merits rather than the technicalities of the
pleadings.’” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (quoting Tefft
v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)).
Generally, courts consider five factors in determining whether leave to amend
should be granted, including: (1) undue delay; (2) bad faith; (3) repeated failure to cure
deficiencies; (4) undue prejudice to the opposing party; and (5) futility of amendment.
Foman v. Davis, 371 U.S. 178, 182 (1962). Dodge claims that that granting Defendants’
leave to amend the counterclaim would be futile. While the Court finds it unlikely, based
on the allegations in the counterclaim, that Defendants can maintain a claim for attempted
monopolization, given the thrust of Rule 15, this Court shall not preclude Defendants
from trying.
16
IV.
CONCLUSION
For these reasons, Plaintiff’s motion to dismiss (Doc. 43) is GRANTED.
However, Defendants are granted leave to amend the counterclaim within 21 days of the
date of this Order.
IT IS SO ORDERED.
Date: 9/29/16
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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