American Airlines Inc v. Travelport Limited et al

Filing 40

MOTION to Dismiss filed by Orbitz Worldwide, LLC with Brief/Memorandum in Support. (Attachments: #1 Brief in Support of Defendant's Motion to Dismiss) (Wall, Daniel)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

AMERICAN AIRLINES, INC.,
a Delaware corporation,
Plaintiff,
vs.
TRAVELPORT LIMITED, a foreign
corporation, and TRAVELPORT, LP,
a Delaware limited partnership, d/b/a
TRAVELPORT;
and
ORBITZ WORLDWIDE, LLC, a Delaware
limited liability company, d/b/a ORBITZ,
Defendants.

Civil Action No. 4:11-cv-00244-Y

DEFENDANT ORBITZ WORLDWIDE, LLC’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Defendant Orbitz Worldwide, LLC (“Orbitz”) respectfully moves to dismiss plaintiff
American Airlines, Inc.’s (“American”) Second and Third Claims for Relief (the only claims
asserted against Orbitz) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As
pleaded, American’s Complaint fails to state a claim upon which relief can be granted as to
Orbitz. In support of this motion, Orbitz files its Brief in Support of its Motion to Dismiss, an
Appendix and a Proposed Order.
This motion is made on the grounds that American’s Complaint fails to state a claim
against Orbitz as a matter of law because: (1) the Subscriber Services Agreement, an alleged
unlawful exclusive dealing agreement which forms the basis of American’s claims against

1

Orbitz, is not alleged to—and does not—foreclose a “substantial share” of any pleaded market,
and American’s Sherman Act claims against Orbitz thus fail as a matter of law. See Tampa
Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961); Jefferson Parish Hosp. Dist. No. 2 v.
Hyde, 466 U.S. 2 (1984); Apani Southwest, Inc. v. Coca-Cola Enterprises, Inc., 300 F.3d 620
(5th Cir. 2002); Star Tobacco, Inc. v. Darilek, 298 F. Supp. 2d 436 (E.D. Tex. 2003). (2) Orbitz
was a wholly owned subsidiary of defendant Travelport, the other party to the Subscriber
Services Agreement, when that agreement was executed, and has remained an affiliate of
Travelport at all times since then, and is therefore legally incapable of conspiring with Travelport
for purposes of the antitrust laws. See Copperweld Corp. v. Independence Tube Corp., 467 U.S.
752 (1984). And, (3) the remaining allegations in the Complaint fail to adequately plead
Orbitz’s involvement or participation in any conspiracy to monopolize any pleaded market, as
required by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
For these reasons and those stated in its supporting Brief and Appendix, as well as in any
Reply Brief and at oral argument, if any, Orbitz respectfully requests that the Court dismiss with
prejudice the Complaint’s Second and Third Claims for Relief against it for failure to state a
claim upon which relief can be granted.
DATED:

May 25, 2011

Respectfully submitted,
/s/ Daniel M. Wall
Daniel M. Wall (admitted Pro Hac Vice)
California State Bar No. 102580
Email: [e-mail]
Christopher S. Yates (admitted Pro Hac Vice)
California State Bar No. 161273
Email: [e-mail]
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: [phone]
Facsimile: [phone]

2

and
John J. Little
Texas State Bar No. 12424230
Email: [e-mail]
Stephen G. Gleboff
Texas State Bar No. 08024500
Email: [e-mail]
Megan K. Dredla
Texas State Bar No. 24050530
Email: [e-mail]
LITTLE PEDERSEN FANKHAUSER LLP
901 Main Street, Suite 4110
Dallas, TX 75202-3714
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT
ORBITZ WORLDWIDE, LLC

CERTIFICATE OF SERVICE
On May 25, 2011, I electronically submitted the foregoing document with the clerk of the
court for the U.S. District Court, Northern District of Texas, Fort Worth Division, using the
electronic case filing system of the court. The electronic case filing system sent a “Notice of
Electronic Filing” to the attorneys of record who have consented in writing to accept this Notice
as service of this document by electronic means.

/s/ Daniel M. Wall
Daniel M. Wall
SF\855529

3