Bryan v. Stillwater Bd. of Realtors

• Decision Date: 26 July 1977
• Docket Number: No. 77-1111,77-1111
• Parties: , 1978-1 Trade Cases 62,078 J. P. BRYAN, Plaintiff-Appellant, v. STILLWATER BOARD OF REALTORS, Arlene Barnes, Tom D. Berry, Lloyd V. Daugherty, Happy P. Marton, Billie V. Fisher, Freeman L. Dilbeck, Arthur W. Akerson, Kendall Grindstaff, Max Hanson, Marsha Teague, Leonard G. Herron, Jr., Paul Hieronymus, Gene Hoyt, Price Campbell, William Auflegor, Ken Garrett, Paul Kerr, Max Koerner, John Duck, Benjamin Kraybill, C. R. Millard, Kelly P. Powell, Lecil Bickett, C. Ray Smith, Dwayne R. Wilson and Wendell Stephens, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1319

578 F.2d 1319

44 A.L.R.Fed. 732, 1978-1 Trade Cases 62,078

J. P. BRYAN, Plaintiff-Appellant, v. STILLWATER BOARD OF REALTORS, Arlene Barnes, Tom D. Berry Lloyd V. Daugherty, Happy P. Marton, Billie V. Fisher Freeman L. Dilbeck, Arthur W. Akerson, Kendall Grindstaff Max Hanson, Marsha Teague, Leonard G. Herron, Jr., Paul Hieronymus, Gene Hoyt, Price Campbell, William Auflegor, Ken Garrett, Paul Kerr, Max Koerner, John Duck, Benjamin Kraybill, C. R. Millard, Kelly P. Powell, Lecil Bickett, C Ray Smith, Dwayne R. Wilson and Wendell Stephens, Defendants-Appellees.

No. 77-1111.

United States Court of Appeals, Tenth Circuit.

Submitted June 3, 1977.

Decided July 26, 1977.

N. Franklyn Casey, Tulsa, Okl., for plaintiff-appellant.

Carroll F. Pope, Stillwater, Okl., and Burck Bailey of Fellers, Snider, Blankenship & Bailey, Oklahoma City, Okl., for defendants-appellees.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

J. P. Bryan (Bryan) appeals from the order of the district court granting appellees' Motion to Dismiss complaint and cause of action for failure to state a claim upon which relief may be granted and for lack of jurisdiction over the subject matter because the activity complained of ". . . is local and does not restrain trade or commerce among the several states." (R., Vol. I, p. 77.) The trial court held that the absence of subject matter jurisdiction (Fed.Rules Civ.Proc., rule 12(b)(1), 28 U.S.C.A.) and the failure to state a claim upon which relief may be granted (Fed.Rules Civ.Proc., rule 12(b)(6), 28 U.S.C.A.) could not be cured by a "more definite statement" or amendment which Bryan sought in the alternative to file, which request was denied. (R., Vol. I, p. 77.)

The parties to this action are residents of the State of Oklahoma. A rule 12(b)(1) motion is typically employed when (as in the case at bar) there is no diversity of citizenship between the parties and the claim asserted by plaintiff does not involve a federal question or when the amount in controversy does not exceed the required jurisdictional amount. Wright & Miller, Federal Practice and Procedure, Rule 12, § 1350, pp. 542, 543. A rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted puts in issue the legal sufficiency of plaintiff's declaration by admitting all of the well pleaded facts in the plaintiff's pleadings, thereby taking the position that even if all of those allegations are true, still no relief is warranted. Wright and Miller, Federal Practice and Procedure, Rule 12, §§ 1355, 1356, 1357, pp. 587-617. The test most often applied to determine the sufficiency of the complaint to state a claim is set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957):

. . . In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim 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.

355 U.S., at pp. 45, 46, 78 S.Ct., at p. 102.

Accord : Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974); Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102 (10th Cir. 1973); Jackson v. Alexander, 465 F.2d 1389 (10th Cir. 1972); Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967); Fed.Rules Civ.Proc., rule 8(a), 28 U.S.C.A.

On a motion to dismiss, facts well pleaded are taken as correct, but allegations of conclusions or of opinions are not sufficient when no facts are alleged by way of the statement of the claim. Fed.Rules Civ.Proc., rule 8(a) (2), 28 U.S.C.A.; Coopersmith v. Supreme Court of Colorado et al., 465 F.2d 993 (10th Cir. 1972); Olpin v. Ideal National Insurance Company, 419 F.2d 1250 (10th Cir. 1969), Cert. denied, 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d 809 (1970).

With the above rules guiding us, we will now review the Bryan complaint and pleadings. Bryan set forth in his complaint that: He is a resident of Stillwater, Oklahoma, and a licensed real estate broker; on July 1, 1970, he established the Bryan Agency in Stillwater and entered into a real estate brokerage business; he applied for membership and was accepted in the Stillwater Board of Realtors, Stillwater Multiple Listing Service, Oklahoma Association of Realtors, and the National Association of Real Estate Boards; by the end of 1971, the Bryan Agency was the number two realtor in Stillwater, both in listings and sales; the Stillwater Board of Realtors is a charitable, benevolent, educational or scientific corporation composed of an association of real estate brokers, salesmen, and others engaged in the real estate business in Stillwater; the defendants (other than Board) are active members of Board; the activities of the Board and its members are "within the flow of interstate commerce and have an effect upon that commerce" (R., Vol. I, p. 3.) in that (a) Board members render services bringing buyers and sellers together re real estate transactions, for a commission or fee, and arranging for insurance, financing, etc., in the City of Stillwater, (b) a substantial number of persons "using the services of Board members in connection with real estate transactions are persons moving into . . . Stillwater . . . from places outside the State of Oklahoma, and persons moving from Stillwater to places outside the State of Oklahoma" (R., Vol. I, p. 3); (c) because of the Board (members) efforts aforesaid, Board members ". . . have caused substantial amounts of such financing, insurance, commodities and services to move into the City of Stillwater from outside the State of Oklahoma from businesses operating in interstate commerce . . . (and) the commissions and fees charged by Board members for their services have a direct and substantial effect upon the financing, insurance, commodities and the businesses which provide them"; that there are distinct advantages of being a member of the Stillwater Board of Realtors, referred to in subhearings as Educational Advantages, Multiple Listing Service (advantage), Prestigious and Confidence Advantages; Professional Recognition, Referral and Marketing Systems (advantages), and Legislative Representation and Lobby (advantages); on September 21, 1973, Bryan was "unjustifiably expelled from the Board" (R., Vol. I, p. 6.) after exhausting all administrative remedies; on December 23, 1974, Bryan re-applied for membership with Board and even though . . . "he met each and every criteria of membership" (R., Vol. I, p. 6.), his application was rejected; and as a result, Bryan has lost all of the aforesaid advantages of being a realtor, been placed in a severe competitive disadvantage and has had his business destroyed to extent of reduced revenues of $107,600.00.

In Bryan's prayer for relief in the complaint he requested (1) that the defendants (hereinafter jointly referred to as Board for convenience) be adjudged in violation of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1 and 2 and the Clayton Anti-Trust Act, 15 U.S.C.A. §§ 15, 22 and 26, in that they did, directly and through combination and conspiracy, monopolize and attempt to monopolize the real estate business in Stillwater, (2) the issuance of a permanent injunction restraining Board from engaging in the aforesaid activities in violation of the antitrust laws of the United States and for an injunction restraining ". . . the Board and each of its members from denying the Plaintiff membership in the Board . . ." (R., Vol. I, p. 7.); and, (3) the award of money damages for treble the amount of actual damages sustained by Bryan, costs and attorneys fees, and such other relief necessary to prevent such antitrust violations and to promote competition.

Board filed motions to dismiss with supporting affidavits and memoranda of law, contending that Bryan's complaint failed to state a claim under rule 12(b) (6), Supra, and that the Court lacked jurisdiction over the subject matter because the activity complained of is local and does not restrain trade or commerce among the states. rule 12(b)(1), Supra. The motions were granted. Bryan appeals.

On appeal, Bryan contends that the trial court erred in granting Board's Motion to Dismiss. We will consider his arguments in the manner presented.

I.

Bryan contends that the trial court erred in granting Board's Motion to Dismiss based upon his failure to state a claim upon which relief may be granted (Fed.Rules Civ.Proc., rule 12(b)(6), Supra ) because, (a) the court erroneously failed to follow the view of the courts that such motions are looked upon with disfavor in private antitrust actions, and (b) the court erroneously applied the law to the facts in the case. We disagree.

Bryan cites many case authorities for the generally accepted rules that a motion to dismiss for failure to state a claim is viewed with disfavor, and particularly so in a private antitrust action. Bryan contends that his complaint meets all of the commands of Fed.Rules Civ.Proc., rule 8(a), Supra, including the existence of a conspiracy in restraint of interstate commerce resulting in direct injury to his business. For purposes of reaching the "in restraint of interstate commerce" allegation, Bryan argues that the alleged conspiracy is in restraint of (interstate) commerce because: "First, a substantial number of persons using the services of Board members in conjunction with real estate transactions are persons moving into the City of Stillwater from outside the State of Oklahoma, and persons moving from the City of Stillwater to places outside the State of Oklahoma. Secondly, as a result of their efforts in arranging for financing, insurance, and other commodities and services necessary to real estate transactions in the City of Stillwater,...