Aquatherm Industries v. Florida Power & Light
| Citation | 971 F.Supp. 1419 |
| Decision Date | 09 July 1997 |
| Docket Number | No. 92-1047-CIV-ORL-22.,92-1047-CIV-ORL-22. |
| Parties | AQUATHERM INDUSTRIES, INC., Plaintiff, v. FLORIDA POWER & LIGHT COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Blaine H. Winship, Winship & Byrne, Miami, FL, for Plaintiff.
Elizabeth J. Du Fresne, Steel, Hector & Davis, Miami, FL, for Defendant.
This cause comes before the Court on Defendant Florida Power & Light Company's Motion to Dismiss the Amended Complaint with Prejudice1 and Aquatherm's Response2 to the Motion.
Plaintiff Aquatherm Industries, Inc. filed its initial action against Defendant Florida Power & Light Company ("FPL") in Florida state court alleging violations of Florida's antitrust laws. Aquatherm then amended its complaint to include a trademark claim based on the federal Lanham Act. FPL removed the entire action to federal court based on the assertion of this federal claim. Aquatherm thereafter amended its complaint a second time, deleting its Lanham Act claim and moved the federal court to remand the action to state court. Aquatherm's motion was granted, and Aquatherm then amended its complaint a third time to add state counts of trade libel and product disparagement. The Florida trial court dismissed all counts with prejudice, and that decision was affirmed by Florida's Fourth District court of Appeal.
While Aquatherm's case was still before the Florida trial court, Aquatherm filed the instant action in this Court, alleging FPL's violations of federal antitrust laws under the Sherman Act and federal trademark law under the Lanham Act. Aquatherm did not deny that the same factual allegations served as the basis for both the state action and the federal claims. Aquatherm then amended this complaint, not to make any new factual allegations, but merely to add claims under the federal Clayton Act. This Court dismissed Aquatherm's Amended Complaint on the grounds that Aquatherm was barred by principles of res judicata from bringing the present action in federal court after losing on the same facts at the state court level.
On appeal, the Eleventh Circuit held that res judicata barred only Aquatherm's Lanham Act claims but did not preclude Aquatherm's pursuit of its federal antitrust claims. FPL now moves the Court to dismiss Aquatherm's Amended Complaint for failure to state a claim upon which relief may be granted pursuant to the Sherman and Clayton Antitrust Acts. For the grounds set forth below, the Court finds that FPL's Motion to Dismiss the Amended Complaint with Prejudice is due to be granted.
The accepted rule is 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The material allegations of the complaint are taken as true for the purpose of deciding a motion to dismiss. St. Joseph's Hospital v. Hospital Corp. of America, 795 F.2d 948 (11th Cir.1986). The liberal standard of Rule 8 is also generally accepted as the standard in an antitrust action. Id. at 954; McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980).
Although "notice pleading is all that is required for a valid antitrust complaint, a plaintiff must plead sufficient facts so that each element of the alleged antitrust violation can be identified." Municipal Util. Bd. of Albertville v. Alabama Power Co., 934 F.2d 1493, 1501 (11th Cir.1991)(quoting Quality Foods de Centro America, S.A. v. Latin Am. Agribusiness Dev. Corp., 711 F.2d 989, 995 (11th Cir.1983)). Conclusory allegations "will not survive a motion to dismiss if not supported by facts constituting a legitimate claim for relief ... [h]owever, the alleged facts need not be spelled out with exactitude, nor must recovery appear imminent." Board of Albertville, 934 F.2d at 1501.
As one court recognized, litigation today is "too expensive a process to waste time on fanciful claims." Commonwealth of Pennsylvania v. PepsiCo, 836 F.2d 173, 182 (3d Cir.1988).
When the requisite elements are lacking, the costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint.
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821, quoted in PepsiCo, 836 F.2d at 182. The same sentiment was expressed by another trial court in Pao v. Holy Redeemer Hospital, 547 F.Supp. 484 (E.D.Pa.1982), where the complaint was dismissed with prejudice:
Although this is plaintiffs second attempt to state a valid Sherman Act claim, the complaint still offers only uncertain clues as to plaintiffs theory of liability and the facts which would support a finding of Sherman Act liability. It is simply not fair to the defendants, and it would be an onerous imposition on the judicial process, to permit litigation to go forward on the basis of such conclusory and speculative allegations.
Id. at 491. For the reasons set forth below, the Court finds that the "conclusory and speculative allegations" of Aquatherm's Amended Complaint are due to be dismissed.
The following facts are undisputed or read in the light most favorable to Aquatherm.
Aquatherm is a manufacturer of solar-powered heating systems for swimming pools. Solar pool heaters compete with pool heating systems powered by alternative energy sources, including natural gas, propane gas, electrical resistance, and electrical heat pumps. FPL is a regulated utility that sells electricity in an area of Florida containing more than 250,000 in-ground swimming pools. Electric pool heat pumps operate at a constant, high load factor, which indirectly benefits FPL by increasing the utilization of its system; however, FPL does not manufacture or sell electric pool heating pumps, nor does it benefit directly from the sale of heat pumps.
In 1987 and 1988, FPL began a program promoting the use of electric pool heat pumps as the most economical way to heat commercial and residential swimming pools. In a direct mail advertising campaign to FPL customers, FPL informed commercial pool customers that pool heat pumps were the "lowest-cost way for you to keep your pool at tropical temperature all winter" and the "smartest, most economical way to heat a pool" in comparison to natural gas, propane and other fossil-fuel alternatives, but not in comparison to solar pool heaters. FPL also advertised these claims in newspapers and radio stations; provided a list of FPL participating contractors that sell and install electric pool heat pumps, gave awards for the most installations of electric pool heat pumps; provided cash rebates to customers choosing electric pool heat pumps; and provided "free energy audits" to customers owning swimming pools. Aquatherm contends that these promotion activities unfairly advantaged the market for electric pool heaters and severely restrained the market for the sale of pool heaters.
Aquatherm asserts claims pursuant to the Sherman and Clayton Antitrust Acts for monopolization; monopoly leveraging; attempted monopolization; conspiracy to monopolize; and conspiracy to restrain trade or group boycott.3 FPL contends that Aquatherm's Amended Complaint fails to state a claim upon which relief may be granted because FPL is not a competitor in the relevant pool heater market, as required by antitrust law. In response, Aquatherm does not dispute that FPL is not a competitor in the relevant pool heater market; rather, Aquatherm argues that (1) FPL need not be a competitor of Aquatherm in the relevant market for the conspiracy counts; and (2) that the Court should view FPL as a competitor because FPL's desire to increase electricity consumption gives it a powerful financial incentive to assure the success of electric pool heaters.
Section 2 of the Sherman Act prohibits monopolization, attempted monopolization, and conspiracy or combination to monopolize any part of trade or commerce. 15 U.S.C.A. § 2 (West 1997). Section 4(a) of the Clayton Act allows an injured party to bring a private antitrust action to recover treble damages for injuries to its business resulting from violation of the antitrust laws. 15 U.S.C.A. § 15(a) (West 1997).
The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); Levine v. Central Fla. Medical Affiliates, Inc., 72 F.3d 1538, 1555 (11th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 75, 136 L.Ed.2d 34 (1996); T. Harris Young & Assoc., Inc. v. Marquette Elec., Inc., 931 F.2d 816, 823 (11th Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991); Austin v. Blue Cross & Blue Shield, 903 F.2d 1385, 1391 (11th Cir.1990).
In comparison, "to establish a violation of § 2 for attempted monopolization, a plaintiff must show (1) an intent to bring about a monopoly and (2) a dangerous probability of success." Levine, 72 F.3d at 1555-56; Norton Tire Co. v. Tire Kingdom Co., 858 F.2d 1533, 1535 (11th...
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