Opinion
Case No. 8:02-cv-1585-T-24MAP
October 10, 2003
ORDER
This cause comes before the Court for consideration of the following motions: Defendants', David E. Burton, Sr., David E. Burton, Jr., Burtons and Sons, Inc. and Littlewood Fences, Inc. (collectively "the Burton Defendants"), Motion to Dismiss the First Amended Complaint (Doc. No. 45); Defendant's, Reman Hodges, a/k/a Mrs. George H. Hodges, Jr. ("Hodges"), Motion to Dismiss (Doc. No. 46); Defendant's, USA Equestrian, Inc. (the "Federation"), Motion to Dismiss First Amended Complaint (Doc. No. 47); Defendants', Bob Bell and Classic Company Ltd. (collectively "Bell"), Motion to Dismiss First Amended Complaint (Doc. No. 48) and Defendant's, North Florida Hunter Jumper Association ("NFHJA"), Motion to Dismiss the First Amended Complaint, or Alternatively Motion for a More Definite Statement (Doc. No. 51). Plaintiffs filed a Request for Oral Argument and Consolidated Memorandum in Opposition to Defendants' Motions to Dismiss Amended Complaint (Doc. No. 53) (hereinafter "Response to Motions to Dismiss Amended Complaint").
I. Background
Plaintiffs filed their original Complaint on August 29, 2002 (Doc. No. 1). This Court dismissed the Complaint, but granted Plaintiffs leave to amend (Doc. No. 39). On April 18, 2003, Plaintiffs filed a nine count Amended Complaint (Doc. No. 42) in which they allege claims for violation of Section 1 of the Sherman Act, violation of Section 2 of the Sherman Act, violation of Florida's Antitrust Act and violation of the Florida Deceptive and Unfair Trade Practices Act.
The Court will not restate the entire factual background of this case. Instead, the Court incorporates by reference the factual background as outlined in the Court's Order granting the Burton Defendants, the Federation, the Defendants Bell and Defendant Hodges' Motions to Dismiss (Doc. No. 39).
In the Amended Complaint, Plaintiffs add an additional Defendant, North Florida Hunter Jumper Association, Inc. ("NFHJA"), and broaden the allegations regarding hunter and jumper horse shows and Plaintiffs' relevant market definition. Additionally, Plaintiffs provide more precise allegations of the activities which they allege violate §§ 1 and 2 of the Sherman Act, and add claims under the Florida Antitrust Act and the Florida Deceptive and Unfair Trade Practices Act.
The Federation recognizes more than 2,800 horse shows nationwide, including those holding Federation approved hunter and jumper competitions classified by the Federation as "A" level and above (hereinafter "'A' Rated Hunter and Jumper Recognized Horse Shows"). All such recognized horse shows must have an entity or individual that promotes, organizes or manages the horse show and a financially responsible entity or individual. See Amended Complaint ¶ 4. All of the Defendants, excluding the Federation, (the "Non-Federation Defendants") are either the promoters or managers of "A" Rated Hunter and Jumper Recognized Horse Shows or individuals or entities who are financially responsible for such shows. See Amended Complaint ¶ 6.
The Federation claims more than 80,000 members, including both individual members and promoters of horse shows, and is divided into twelve regional zones ("Federation Zones") and many different divisions based on horse breeds and horse disciplines recognized generally within the equestrian sport. Horses in the hunter and juniper disciplines are trained to jump over obstacles and, in the case of jumpers, jump obstacles which may be more than five feet in height. See Amended Complaint ¶¶ 24 and 31. Since horses in the hunter and jumper disciplines have complementary skill sets, hunter and jumper events are typically held in conjunction with each other and horses often enter both competitions at the same horse show. See Amended Complaint ¶ 34.
Each Federation Zone has committees by breed and/or discipline that assist the Federation in developing and enforcing the Federation Rules ("Federation Zone Committees"). The State of Florida is in Federation Zone 4. See Amended Complaint ¶¶ 35 and 36. The Plaintiffs assert that some or all of the Non-Federation Defendants have held official positions within the Federation and its committees. By way of example, Defendant Bob Bell is a member of the Federation Zone 4 Hunter/Jumper Committee and the Federation Competition Management Committee. Many incumbent Recognized Horse Show promoters and managers sit on Federation Zone Committees and other governing entities within the Federation. See Amended Complaint ¶¶ 35-37. All members of the Federation must agree to abide by all provisions of the Federation Rules as a condition of membership in the Federation. See Amended Complaint ¶ 43.
Only Recognized Horse Shows may use the Federation Rules. See Amended Complaint ¶¶ 40 and 45. Plaintiffs allege that the Federation has prohibited non-Recognized Horse Shows and other organizations that have requested permission from using the Federation Rules to govern their equestrian competitions. See Amended Complaint ¶ 46. Plaintiffs allege that the ability to advertise that a competition is a Recognized Horse Show is an economic benefit to promoters, participants and exhibitors. See Amended Complaint ¶ 47.
In recent decades, the popularity of the equestrian sport and the demand for Recognized Horse Shows have increased. See Amended Complaint ¶ 67. Plaintiffs assert that the Federation, in combination and conspiracy with those who promote and manage existing Recognized Horse Shows, developed arbitrary means to entrench existing promoters or managers of Recognized Horse Shows, prevent competition from new Recognized Horse Shows, and secure financial advantages for existing promoters or managers to the detriment of actual and potential participants and competing horse shows. See Amended Complaint ¶¶ 67 and 68. Specifically, entities who submit timely applications to hold Recognized Horse Shows accompanied by the applicable fees do not have the same access to dates for Recognized Horse Shows as existing promoters and managers. See Amended Complaint ¶ 69. Plaintiffs assert the Federation has become the means through which Defendants can veto competition from any new horse shows, can fix or stabilize prize money awarded to competitors, and can allocate among themselves the market for Federation-approved horse show competitions. See Amended Complaint ¶¶ 70 and 71.
Under Article 210 of the Federation Rules, the only method through which one may receive approval to hold a Recognized Horse Show is to submit an application to the Federation on a prescribed form ("Federation Application"). See Amended Complaint ¶ 73. An applicant must sign the Federation Application indicating that the competition will abide by the Federation Rules. See Amended Complaint ¶ 77. The Federation Application has a space to select the total amount of prize money to be awarded at the proposed Recognized Horse Show ("Federation Prize Level"), but the applicant does not determine the Federation Prize Level. After a Federation Application is approved, the Federation determines the Federation Prize Level that may be awarded. See Amended Complaint ¶¶ 80 and 81.
Plaintiffs assert the Federation did not limit the number of Recognized Horse Shows in geographic proximity to each other based on any fixed rule until approximately 1975. In 1975, the Federation established a rule to prevent any two Recognized Horse Shows from holding events at the same Federation Event Level on the same day within 250 miles of each other ("First Mileage Rule"). Sec Amended Complaint ¶¶ 83 and 84. No reference is made to the origins of the First Mileage Rule in the Federation Rules or its bylaws, constitution or website. See Amended Complaint ¶ 87. The Federation altered the First Mileage Rule on or about 1988 and reduced the mileage zone from 250 miles to 125 miles in the States of Maine, New Hampshire, Vermont, Connecticut, Rhode Island, New Jersey, New York and Pennsylvania. See Amended Complaint ¶ 89.
Under Article 214 of the Federation Rules, if a horse show promoter opts to permit another horse show promoter to hold an event at the same Federation Event Level within 250 miles, the newly approved horse show must be no closer than ten (10) miles from the incumbent promoter ("Mini-Mileage Rule") provided there are different competition managements. See Amended Complaint ¶ 92. Further, Article 214 of the Federation Rules restricts any two Recognized Horse Shows holding unrated jumper competitions within 250 miles of each other from offering "total prize money of $10,000 or more" ("Federation Jumper Prize Level Rule").See Amended Complaint ¶ 93.
Plaintiffs assert that the Federation's 250-mile radius rule is an illegal agreement between the Federation and incumbent promoters to prevent and limit competition and allocate the market for Federation Recognized Horse Shows, Given the geography of the State of Florida, if an "A" Rated Recognized Horse Show with a hunter/jumper class is to be held in the Palm Beach County, Florida area, the invocation of the Mileage Rule by a Non-Federation Defendant prevents a similar event from being held in the Tampa, Orlando or Jacksonville metro area. Plaintiff asserts that the perpetuation and enforcement of the Mileage Rule is an arbitrary and anticompetitive decision by the Federation, developed in concert and combination with incumbent promoters and managers of existing Recognized Horse Shows, to insulate such promoters and managers from competition. See Amended Complaint ¶¶ 96-99. The Defendants have employed the Mileage Rule and their veto power to reject Plaintiffs' Federation Applications and the Federation Applications submitted by other promoters seeking to hold Recognized Horse Shows. See Amended Complaint ¶ 100. Formal proposals have been made by members of the Federation to alter or abolish the Mileage Rule and other associated Federation Rules, but all such proposals have been rejected by the Federation and the Federation Zone Committees. See Amended Complaint ¶¶ 101-102.
In 1987, the Federation added a new provision to its rules which stated that if the Mileage Rule "create[d] a conflict of dates between [Recognized Horse Shows] existing prior to December 1, 1987, each competition may retain its comparable dates provided all other requirements for recognition are met" ("Grandfather Rule"). See Amended Complaint ¶ 103. Under Article 212 of the Federation Rules, any promoter who held a Registered Horse Show during the previous year automatically has the dates of that show reserved for the following year ("Comparable Date Rule"). See Amended Complaint ¶ 105. Most incumbent Recognized Horse Shows utilize the Comparable Date Rule to secure dates in consecutive and subsequent years. At least one incumbent promoter of a Recognized Horse Show holds the rights to hold "A" Rated Hunter/Jumper Recognized Horse Shows on each weekend date during the peak equestrian sport periods in the State of Florida. See Amended Complaint ¶¶ 110 and 111. Plaintiffs assert that the possession of these dates by incumbent promoters effectively blocks competition from Plaintiffs and others and eliminates competition between Recognized Horse Shows offering similar "A" rated hunter and jumper events in any cities less than 250 miles apart. See Amended Complaint ¶ 112.
Even when incumbent Recognized Horse Shows lose privileges to hold a Recognized Horse Show due to inadvertence in submitting timely renewal applications, other incumbent Recognized Horse Shows have secured and sold such dates to the original incumbent. See Amended Complaint ¶ 108. There are also Federation Rules which permit an incumbent Recognized Horse Show promoter holding a date for a non-"A" Rated Hunter and Jumper Horse Show to veto an applicant should a date become available to hold a new "A" Rated Hunter and Jumper Horse Show ("Preferential Upgrade Rule"). See Amended Complaint ¶¶ 113-115.
It is Plaintiffs' position that hunter and jumper equestrian competitions recognized by the Federation as "A" Rated Hunter and Jumper Horse Shows constitute the relevant product market ("Relevant Product Market"). There is a separate and distinct relevant geographic market for "A" Rated Hunter and Jumper Horse Shows in the State of Florida between December 1 and March 31 of each year. See Amended Complaint ¶¶ 137-145.
In the Amended Complaint, Plaintiff Gallagher asserts he sought oral consent from Defendant Hodges and Defendant NFHJA to hold its shows under the Mini-Mileage Rule, but such consent was withheld. See Amended Complaint ¶ 164. Plaintiff Gallagher also claims he was banned from selling his equestrian services at Recognized Horse Shows at which he had previously been a vendor. See Amended Complaint ¶ 169. Plaintiffs assert that Defendant Hodges supported and assisted the Defendants Bell in effecting Plaintiff Gallagher's termination as a farrier and food concessionaire at Recognized Horse Shows produced by the Defendants Bell, Defendant Hodges and NFHJA. See Amended Complaint ¶ 171.
Defendants seek to dismiss the Amended Complaint in its entirety. Count I raises claims of violation of section 1 of the Sherman Act. Counts II-IV raise claims of monopolization, attempted monopolization, and conspiracy to monopolize in violation of section 2 of the Sherman Act. Counts V-VIII raise claims of violation of Florida Antitrust Act, FLA. STAT. ANN. §§ 542.18 and 542.19. Count DC raises claims of violation of the Florida Deceptive and Unfair Trade Practices Act.
II. Standard of Review for a Motion to Dismiss
In deciding a motion to dismiss, the district court is required to view the complaint in the light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp., 208 F.3d 959, 962 (11th Cir. 2000) (citingKirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999)). A complaint should not be dismissed for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) The Federal Rules of Civil Procedure "do not require a claimant to set out in detail the facts upon which he bases his claim." Id. at 47. All that is required is "a short and plain statement of the claim." Fed.R.Civ.P. 8(a)(2). The standard on a 12(b)(6) motion is not whether the plaintiff will ultimately prevail in his or her theories, but whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations. Sec Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986). The Federal Rules of Civil Procedure have adopted this "simplified pleading" approach because of "the liberal opportunity for discovery and other pretrial procedures . . . to disclose more precisely the basis of both claim and defense/1Conley, 355 U.S. at 48. The purpose of notice pleading is to reach a decision on the merits and to avoid turning pleading into "a game of skill in which one misstep by counsel may be decisive to the outcome."Id.
"To satisfy the requirements of notice pleading in an antitrust complaint, 'enough data must be pleaded so that each element of the alleged antitrust violation can be properly identified.'" Boczar v. Manatee Hospitals Health Systems, Inc., 731 F. Supp. 1042, 1045 (M.D. Fla. 1990) (Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 995 (11th Cir. 1983)). Rule 12(b)(6) dismissals are particularly disfavored in fact-intensive antitrust cases. See Convad Communications Company v. Bell South Corporation, 299 F.3d 1272, 1279 (11th Cir. 2002); see also Tiftarea Shopper, Inc. v. Ga. Shopper, Inc., 786 F.2d 1115, 1118 (11th Cir. 1986) (noting that "because of the factual nature of most antitrust cases, 'summary procedures should be used sparingly'") (quoting Poller v. Columbia Broad. Sys. Inc., 368 U.S. 464 (1962)).
III. Discussion
The crux of Plaintiffs' claims are the allegations that Defendants illegally used an organization's rules to insulate themselves from economic competition in the horse show industry. Specifically, that the Federation, whose leadership is dominated by incumbent Recognized Horse Show promoters, has been used to facilitate anticompetitive rules that serve only to protect the promoters' financial interest. While Plaintiffs' claims may not ultimately survive summary judgement, the Court finds Plaintiffs have stated sufficient basis so that each element of the alleged antitrust violations and violation of the Florida Deceptive and Unfair Trade Practices Act can be properly identified.
Collectively, Defendants set forth numerous grounds upon which their Motions to Dismiss should be granted. Specifically, Defendants seek dismissal on the following grounds: (1) the Amended Complaint fails to state a cause of action upon which relief can be granted under section 1 of the Sherman Act and FLA. STAT. ANN. § 542.18; (2) the Amended Complaint fails to state a cause of action upon which relief can be granted under section 2 of the Sherman Act and FLA. STAT. ANN. § 542.19; (3) the Amended Complaint fails to state a cause of action upon which relief can be granted under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") and (4) Plaintiff Gallagher may not pursue an antitrust claim against the Burton Defendants because he fails to allege that he exhausted Federation procedures prior to filing suit.
The Court notes that while all of the Defendants raise this basis for dismissal in their Motions to Dismiss the Amended Complaint, each Motion to Dismiss the Amended Complaint differs slightly as to the specific element of Plaintiffs' claim which is defective.
1. Section 1 of the Sherman Act, 15 U.S.C. § 1 (Count I)
Section 1 of the Sherman Act provides, in pertinent part, that "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal." 15 U.S.C. § 1. As discussed below, the Court finds that Plaintiffs have adequately plead allegations that support the elements of a section 1 violation of the Sherman Act.
a. Contract, Combination or Conspiracy
Defendants claim that Plaintiffs fail to plead a contract, combination, or conspiracy under section 1 of the Sherman Act. Specifically, Defendants argue that Plaintiffs do not allege facts showing that Defendants participated in an unlawful conspiracy to deny Plaintiffs a waiver of "Mileage Rule" or which unreasonably restrains trade. The Court disagrees.
In its March 28, 2003 Order this Court stated that "vague allegations of concerted action are vulnerable to dismissal." Further, the Court held that there were no facts alleged "to support an inference that there were concerted activities between or involving Defendants with respect to the adoption or implementation of the 'Mileage Rule.'" In the Amended Complaint Plaintiffs have alleged facts which support their claims of concerted action. Plaintiffs allege that the Federation, whose leadership is dominated by incumbent Recognized Horse Show promoters, has been a vehicle to facilitate anticompetitive rules which serve only to protect the promoters' financial interests. Specifically, certain non-Federation Defendants have held leadership positions within the Federation and participated in the formation of, and rejection of amendments to, the Mileage Rule and related rules. See Amended Complaint ¶¶ 37, 101-102.
Contrary to what Defendants may assert, Plaintiffs are not alleging that Defendants' conduct is "mere membership in an association" nor are Plaintiffs contravening the Federation's ability to establish rules for its operation. Rather, Plaintiffs contend that Defendants illegally used an organization's rules to insulate themselves from economic competition in the horse show industry. Plaintiffs allege concerted activity through express agreements to abide by the Federation's rules, including the Defendants' decision not to waive the "Mileage Rule." Contracts, and the exercise of contract power, may run afoul of the antitrust laws. See Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1219 (11th Cir. 2002).
This Court disagrees with the position that the Federation's Mileage Rule "has already passed muster under the antitrust laws" citingAshley Meadow Farms, Inc. v. Am. Horse Shows Assoc., Inc., 617 F. Supp. 1058, 1065 (S.D.N.Y. 1985).
Several Defendants rely on Suzuki of Western Mass., Inc. v. Outdoor Sports Expo. Inc., 126 F. Supp.2d 40 (D. Mass. 2001) to support their position that Plaintiffs have failed to allege an unlawful conspiracy in violation of section 1 of the Sherman Act, Suzuki is not binding on this Court and it is also factually distinguishable from the present case. InSuzuki, the Court held that a unilaterally adopted rule under which only one retail boat dealer could display a particular line of boats at a boat show, with a dealer who had displayed a particular line at the previous year's show being given priority, did not constitute conspiracy in restraint of trade. Reading Plaintiffs' Amended Complaint liberally as required, the Federation is not simply unilaterally creating objective rules to govern and standardize horse show competitions. Rather, unlike Suzuki, those who stand to benefit from adherence to and use of the Mileage Rule are affiliated with the entity who is creating the rule.
b. Unreasonable Restraint of Trade
Several Defendants argue that Plaintiffs' per se claims are defective under the second prong of section 1 of the Sherman Act, and argue, in part, that the per se rule does not apply to Plaintiffs' claims of price fixing, territorial or market allocation and group boycott. "The decision to apply the/w se rule turns on 'whether the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output . . . or instead one designed to 'increase economic efficiency and render markets more, rather than less, competitive.'"Northwest Wholesale Stationers, Inc. v. Pacific Stationary Printing Co., 472 U.S. 284, 289-290 (1985) (quoting Broadcast Music, Inc. v. Columbia Broadcasting System, Inc. 441 U.S. 1, 19-20(1979)).
This Court does not have sufficient facts before it to determine whether the complained of restrictions rise to the level of per se violations of Section 1 of the Sherman Act or should be analyzed under a Rule of Reason. After the close of discovery, Defendants may be able to demonstrate that Plaintiffs' per se claims are improper.
Plaintiffs' Amended Complaint provides a sufficient factual basis for its assertion that Defendants' adherence to and continued support of the Mileage Rule and other restrictive provisions of the Federation Rules constitutes an antitrust violation of § 1 of the Sherman Act. Therefore, as to Count I, the Defendants' Motions to Dismiss the Amended Complaint are denied.
2. Section 2 of the Sherman Act, 15 U.S.C. § 2 (Counts II-IV)
Section 2 of the Sherman Act is directed against "[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States." 15 U.S.C. § 2. Broadly speaking, there are three distinct violations actionable under section 2 of the Sherman Act: (1) monopolization; (2) attempt to monopolize; and (3) conspiracy to monopolize. In their Amended Complaint, Plaintiffs allege all three violations. Defendants all argue that Plaintiffs have failed to allege that Defendants possess or maintain market power sufficient to state a claim for monopolization offenses under federal or state antitrust laws. As discussed below, the Court finds that Plaintiffs have plead allegations that support the elements of their claims for monopolization offenses under section 2 violation of the Sherman Act.
i. Monopolization
To state a claim for monopolization, plaintiff must establish: (1) possession of monopoly power in the relevant market and (2) willful acquisition or maintenance of that power as distinguished from growth or development as consequence of superior product, business, acumen, or historic accident. Sec Moecker v. Honeywell International, Inc., 144 F. Supp.2d 1291, 1308 (M.D. Fla. 2001) (citing United States v. Grinnell Corp., 384 U.S. 563, 570-571 (1966)): see also Levine v. Central Florida Medical Affiliates et al., 72 F.3d 1538, 1554 (11th Cir. 1996).
A plaintiff bringing a monopolization claim under section 2 of the Sherman Act must plead and prove the relevant market as an element of the claim. See U.S. Anchor Manufacturing, Inc. v. Rule Industries, Inc., 7 F.3d 986, 994 (11th Cir. 1993). In its March 28, 2003 Order this Court found that Plaintiffs had failed to define a relevant market. In their Amended Complaint, Plaintiffs define the relevant product market as "Hunter and jumper equestrian competitions recognized by the Federation as hunter and juniper competitions ' A' rated and above.' See Amended Complaint ¶ 137. They also define the relevant geographic market as consisting of "'A' rated hunter and jumper Recognized Horse Shows in the State of Florida during the Winter Months." See Amended Complaint ¶ 145. Defendants argue that Plaintiffs have failed to properly allege that Defendants possess monopoly power in this proposed market.
With respect to their monopolization claim under section 2 of the Sherman Act, Plaintiffs allege that "[t]he Federation, together with the non-Federation Defendants and/or other unnamed coconspirators, possess monopoly power in the Relevant Market due to their control over available dates for Recognized Horse Shows under the Federation Rules." See Amended Complaint ¶ 198. Defendants argue that Plaintiffs have failed to allege the market shares held by the individual respective Defendants, and Defendants all argue that courts have rejected claims based upon a "shared monopoly" theory. The Court disagrees with Defendants' argument because the Eleventh Circuit has not addressed whether claims based on a "shared monopoly" may constitute a violation of section 2 of the Sherman Act in a factual situation as presented in the present case.
An oligopolistic market is defined as a market in which the dominant participants engage in interdependent or parallel behavior and have the capacity effectively to determine price and total output of goods or services. See City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 570 n. 32 (11th Cir. 1998). In the present case, Plaintiffs have alleged that together the Federation and Non-Federation Defendants share monopoly power in that a relative few entities seem to control the Relevant Market for "A" Rated Hunter and Jumper Horse Shows. Additionally, in light of the fact that certain non-Federation Defendants have held leadership positions within the Federation and participated in the formation of, and rejection of amendments to the Mileage Rule and related rules, the concept of a "shared monopoly" cannot be excluded at this juncture.
The Federation argues that based upon the allegations in the Amended Complaint, the Federation cannot possess monopoly power in Plaintiffs' proffered relevant market since they operate in a "separate market." Specifically, the Federation focuses on certain language in the Amended Complaint for the proposition that it is in the market for "regulatory bod[ies] for equestrian sport in the United States." However, Plaintiffs also allege the Federation's leadership is dominated by incumbent Recognized Horse Show promoters. Therefore, taking the allegations most favorably for the Plaintiffs the Federation arguably is a competitor in the relevant market.
Under a "shared monopoly" theory Plaintiffs have alleged Defendants possess market power, or "the power to control prices or exclude competition." United States v. E.I. du Pont Nemours Co., 351 U.S. 377, 391 (1956). Whether a relatively few entities acting in collusion may achieve monopoly power is a novel theory of liability. However, "[t]he court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's suppositions." 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990). The Court finds Plaintiffs have plead the elements of a monopolization claim under section 2 of the Sherman Act.
ii. Attempted Monopolization
To state a claim for attempted monopolization, plaintiff must allege: "(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). Anticompetitive conduct is "the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor." United States v. Griffith, 334 U.S. 100, 107 (1848). Plaintiffs allege that Defendants have prevented competition from new Recognized Horse Shows because entities who submit timely applications to hold Recognized Horse Shows, accompanied by the applicable fees, do not have the same access to dates for Recognized Horse Shows as existing promoters and managers. Therefore, the Court finds the Plaintiffs have plead the elements of an attempted monopolization claim under section 2 of the Sherman Act.
iii. Conspiracy to Monopolize
To state a claim for conspiracy to monopolize, plaintiff must allege "(1) concerted action deliberately entered into with the specific intent of achieving a monopoly; and (2) the commission of at least one act in furtherance of the conspiracy." Moecker, 144 F. Supp.2d. at 1310 (quotingTodorov v. DCH Healthcare Authority, 921 F.2d 1438, 1460 n. 5 (11th Cir. 1991)). See also ABA Section of Antitrust Law, Antitrust Law Developments, p. 308 (5th ed. 2002). A claim for conspiracy to monopolize does not require a showing of monopoly power. See Levine, 72 F.3d at 1555.
The Court finds the Plaintiffs have plead the elements of a conspiracy to monopolize claim under section 2 of the Sherman Act. As discussed in Plaintiffs' Amended Complaint, the horse show industry relating to "A" Rated Hunter and Jumper Horse Shows in the Relevant Market is a close knit industry. The apparent result of Defendants' strict adherence to the Federation Rules and failure to waive the Mileage Rule is that at least one "A" rated hunter and jumper Recognized Horse Show by an incumbent promoter occurs every winter weekend in Florida, thereby preventing other promoters from entering the market and potentially limiting the location and number of Recognized Horse Shows,
December 1 through March 31 of each year. See Amended Complaint ¶ 141.
At this stage in the litigation, Plaintiffs' Amended Complaint provides a sufficient factual basis for its assertion that Defendants' adherence to and continued support of the Mileage Rule and other restrictive provisions of the Federation Rules constitutes antitrust violations of § 2 of the Sherman Act. Therefore, as to Counts II-IV, the Defendants' Motions to Dismiss the Amended Complaint are denied.
3. Florida Antitrust Act, FLA. STAT. ANN. §§ 542.18 and 542.19 (Counts V-VIII)
The Florida Antitrust Act provides that "[e]very contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful." Fla. Stat. § 542.18 (2002). Furthermore, "[i]t is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state." Flat. Stat. § 542.19 (2002). "Federal and Florida antitrust laws are analyzed under the same rules and case law." All Care Nursing Service, Inc. v. High Tech Staffing Services, Inc., 135 F.3d 740, 745 n. 11 (11th Cir. 1998). "[T]he Florida legislature has, in effect, adopted as the law of Florida the body of antitrust law developed by the federal courts under the Sherman Act. St. Petersburg Yacht Charters, Inc. v. Morgan Yacht Inc., 427 So.2d 1028, 1032 (Fla. 2nd DCA 1984). Therefore, for the reasons stated above, Plaintiffs have plead the elements of a violation of FLA. STAT. ANN. §§ 542.18 and 542.19.
4. Florida Deceptive and Unfair Trade Practices Act, FLA. STAT. ANN. §§ 501.201 et seq. (Count IX)
Count IX alleges a violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"). Fla. Stat. § 501.201 et seq., FDUTPA provides that unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful. Fla. Stat. § 501.204(1). Sub-section § 501.203(3) provides that a violation of the Federal Trade Commission Act constitutes a violation of FDUTPA. Sub-section § 501.204(2) further provides that, in determining what constitutes an "unfair method of competition" under subsection 501.204(1), "due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to § 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1)." Section 5(a)(1) of the FTC Act encompasses violations of the antitrust laws. See FTC V. Indiana Federation of Dentist, 476 U.S. 454-55 (1986). Thus, violations of the FTC Act also violate FDUTPA. See Mack v. Bristol Myers Squibb, 673 So.2d 100 (Fla.App. 1996) and therefore, the Court finds Plaintiffs have plead the elements of a violation of FLA. STAT. ANN. § 501.201 et seq.
5. Plaintiff Gallagher
The Burton Defendants assert that Plaintiff Gallagher's claim against them is not ripe in that the Amended Complaint fails to allege that he requested and was refused a waiver of the "Mileage Rule" by any of the Burton Defendants even though Plaintiff Gallagher is specific in describing his efforts to secure Mileage Rule waivers from other promoters. See Amended Complaint ¶¶ 158-171. The Burton Defendants further state that having failed to comply with the Federations's procedures regarding obtaining a waiver of the "Mileage Rule" requirements by a previously-recognized promoter of an "A" rated hunter/jumper recognized show, Plaintiff Gallagher cannot proceed against any of the Burton Defendants.
The Court finds that since Plaintiff Gallagher does not allege compliance with the Federation procedures and did not plead he sought a waiver of the Mileage Rule from the Burton Defendants, Plaintiff Gallagher's claims against the Burton Defendants are dismissed.
In contrast, Plaintiffs allege they sought written consent from NFHJA to hold certain horse shows under the Mini-Mileage Rule. See Amended Complaint ¶¶ 153 and 164. Furthermore, with respect to Defendants Bell, Plaintiff Gallagher alleges Defendant Hodges supported and assisted the Defendants Bell in effecting the Plaintiff Gallagher termination as a farrier and food concessionaire at Recognized Horse Shows produced by the Defendants Bell, Defendant Hodges and NFHJA.
6. Motion for More Definite Statement
Motions for a more definite statement are disfavored under the law. See Campbell v. Miller, 836 F. Supp. 827, 832 (M.D. Fla. 1993). "A motion for a more definite statement will only be required when the pleading is 'so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself" Id. (quoting Delta Educ., Inc. v. Langlois, 719 F. Supp. 42, 50 (D.N.H. 1989). Under the Federal Rules of Civil Procedure, a party asserting a claim to relief as an original claim may join as many claims as that party has against an opposing party, either as independent or alternative claims. See 32B Am. Jur.2d, Federal Courts § 2330. Claims of violation of separate antitrust statutes must generally be set forth in separate counts, since the requirements for stating a claim differ among the various statutes. See 54 Am.Jur.2d, Monopolies and Restraints of Trade, and Unfair Practices § 478.
With these basic principles in mind, the Court turns to the assertions made by the Federation and NFHJA that Plaintiffs have impermissibly utilized "shotgun pleadings." The purpose of a motion for a more definite statement is to force a plaintiff to amend a complaint which is so vague or ambiguous that the opposing party cannot respond in good faith or without prejudice to himself. The Court finds that while the Amended Complaint is lengthy and complex, it is neither vague or ambiguous, and there is sufficient information for the Defendants to file a good faith response.
Having considered the motions, and being otherwise fully advised, it is ORDERED AND ADJUDGED that:
(1) Plaintiffs' Request for Oral Argument (Doc. No. 53) is DENIED;
(2) The Defendants', the Burton Defendants, Hodges, the Federation, the Bell Defendants and North Florida Hunter Jumper Association, Motions to Dismiss the First Amended Complaint (Doc. Nos. 45, 46, 47, 48 and 51) are DENIED;
(3) The North Florida Hunter Jumpers Association's Motion for More Definite Statement (Doc. No. 51) is DENIED;
(4) As to Plaintiff Gallagher, the Burton Defendants' Motion to Dismiss the First Amended Complaint (Doc. No. 45) is GRANTED WITHOUT PREJUDICE;
(5) Defendants shall file an Answer to the First Amended Complaint on or before October 31, 2003.
DONE AND ORDERED.