Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC

• Decision Date: 04 January 2013
• Docket Number: No. 11–1569.,11–1569.
• Citation: 703 F.3d 1147
• Parties: AURARIA STUDENT HOUSING AT THE REGENCY, LLC, a Colorado limited liability company, Plaintiff–Appellee, v. CAMPUS VILLAGE APARTMENTS, LLC, a Delaware limited liability company, Defendant–Appellant. United States of America; Federal Trade Commission, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

703 F.3d 1147

AURARIA STUDENT HOUSING AT THE REGENCY, LLC, a Colorado limited liability company, Plaintiff–Appellee,

v.CAMPUS VILLAGE APARTMENTS, LLC, a Delaware limited liability company, Defendant–Appellant.

United States of America; Federal Trade Commission, Amici Curiae.

No. 11–1569.

United States Court of Appeals,Tenth Circuit.

Jan. 4, 2013.

Thomas P. McMahon, Esq., Jones & Keller, P.C., Denver, CO, for Plaintiff–Appellee.

Michael J. Hofmann, David A. Tonini, Bryan Cave HRO, Denver, CO, for Defendant–Appellant.

Michael Daniel Bergman, John F. Daly, Willard K. Tom, Federal Trade Commission Office of the General Counsel, Nickolai Gilford Levin, Robert Nicholson, Sharis A. Pozen, U.S. Department of Justice, Washington, DC, for Amici Curiae.

Before HARTZ, MURPHY, and HOLMES, Circuit Judges.

ORDER

MICHAEL R. MURPHY, Circuit Judge.

I. Introduction

Defendant–Appellant Campus Village Apartments, LLC (“Campus Village”) appeals the denial of its motion to dismiss the complaint of Plaintiff–Appellee Auraria Student Housing at the Regency, LLC (“Regency”). Regency's complaint alleges Campus Village conspired with the University of Colorado, Denver (the “University”) to monopolize the provision of student housing in violation of Section 2 of the Sherman Act. See15 U.S.C. § 2. Regency moved to dismiss Campus Village's appeal, arguing this court lacks subject matter jurisdiction because the district court's denial of Campus Village's motion to dismiss is not a final order under 28 U.S.C. § 1291. Campus Village argues in response that this court has jurisdiction under the collateral order doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Having considered the parties' briefing and argument on this issue, this court grants the motion to dismiss.

II. Background

Regency operates an apartment complex approximately two miles from the University's downtown Denver campus. Campus Village is a Delaware limited liability company which operates an apartment complex (“Campus Village Apartments”) located approximately one-half mile from the University's campus. Pursuant to an agreement between the University and Campus Village, most full-time students are required to reside in the Campus Village Apartments for their first two semesters of enrollment. Regency brought suit against Campus Village, alleging the residency restriction amounted to an illegal conspiracy to monopolize in violation of Section 2 of the Sherman Act. Campus Village moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing the agreement creating the residency restriction was authorized by a clearly articulated and affirmatively expressed state policy to displace competition with regulation, and therefore was not subject to the Sherman Act. See Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38–40, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Parker v. Brown, 317 U.S. 341, 350–51, 63 S.Ct. 307, 87 L.Ed. 315 (1943).

In Parker, the Supreme Court held the Sherman Act did not reach anticompetitive activities conducted by a state or its officers or agents. 317 U.S. at 350–51, 63 S.Ct. 307 (“We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature.”). The doctrine, later termed “Parker immunity” or “state action immunity,” is also available to private parties in certain circumstances. See Town of Hallie, 471 U.S. at 38–40, 105 S.Ct. 1713;Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980); Zimomra v. Alamo Rent–A–Car, Inc., 111 F.3d 1495, 1498–1500 (10th Cir.1997). This court recently held that for anticompetitive conduct to be shielded from antitrust liability by Parker immunity, the conduct must be “ at least a foreseeable (if not explicit) result of state legislation.” Kay Elec. Co-op. v. City of Newkirk, 647 F.3d 1039, 1043 (10th Cir.2011). The district court, applying Kay, concluded the Colorado legislation Campus Village relied upon did not make the agreement sufficiently foreseeable for Campus Village to be protected. It therefore denied the motion to dismiss. This appeal followed.

III. Discussion

This court's jurisdiction is limited to appeals “from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. “[A]n order denying a motion to dismiss is not a final appealable order if it ensures that litigation will continue in the District Court.” Yousef v. Reno, 254 F.3d 1214, 1217 (10th Cir.2001) (quotation omitted). The Supreme Court, however, has identified a “small class” of interlocutory orders that are subject to immediate review under § 1291. Cohen, 337 U.S. at 546, 69 S.Ct. 1221. Under this collateral order doctrine, for a non-final order to be immediately appealable, it must “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (quotations omitted).¹ The Court has clarified that the third condition is not satisfied merely by demonstrating interlocutory review is necessary to avoid trial: “Those seeking immediate appeal ... naturally argue that any order denying a claim of right to prevail without trial satisfies the third condition. But this generalization is too easy to be sound and, if accepted, would leave the final order requirement of § 1291 in tatters.” Id. at 351, 126 S.Ct. 952. Thus, when determining whether an order is “effectively unreviewable” absent interlocutory review, “it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts.” Id. at 353, 126 S.Ct. 952.

The circuits are split on the question whether the denial of Parker immunity is effectively unreviewable on appeal from a final judgment. The Fourth and Sixth Circuits have held it is not. See S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436, 444 (4th Cir.2006); Huron Valley Hosp., Inc. v. City of Pontiac, 792 F.2d 563, 567 (6th Cir.1986). The Fifth and Eleventh Circuits have held that it is. See Martin v. Mem'l Hosp., 86 F.3d 1391, 1397 (5th Cir.1996); Commuter Transp. Sys., Inc. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286, 1289–90 (11th Cir.1986). Those courts holding the denial of Parker immunity is not immediately appealable have observed that, while denominated an “immunity,” the doctrine is actually akin to a defense to a cause of action rather than an entitlement to avoid suit altogether. Huron Valley, 792 F.2d at 567;see also Kay, 647 F.3d at 1042 (“[T]he term ‘immunity’ may be a bit strong since the Court held only that Congress hadn't covered state action, not that it couldn't.”). As a result, no rights are irrevocably lost by delaying review until a final judgment has been entered. Huron Valley, 792 F.2d at 567. Additionally, the Fourth Circuit has suggested the interests vindicated by Parker immunity do not fall within the narrow class of interests described in Will for which interlocutory review is appropriate. S.C. State Bd. of Dentistry, 455 F.3d at 444 (“Simply put, Parker construed a statute. It did not identify or articulate a constitutional or common law ‘right not to be tried.’ Parker, therefore, recognizes a ‘defense’ qualitatively different from the immunities described in Will, which focus on the harms attendant to litigation itself.”).

By contrast, the Fifth and Eleventh Circuits have held Parker immunity is more than a mere defense to liability and its denial is therefore subject to immediate review. Martin, 86 F.3d at 1395–96;Commuter Transp. Sys., 801 F.2d at 1289–90. These circuits have concluded Parker immunity protects important dignitary and public interests which would be lost if a suit proceeded to trial. For example, in Martin, the Fifth Circuit analogized Parker immunity to Eleventh Amendment immunity insofar as each is designed “to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties, and to ensure that the States' dignitary interests can be fully vindicated.” Martin, 86 F.3d at 1395–96. (quotations, alteration, and citation omitted). Additionally, the court noted Parker immunity, like qualified immunity, allows public officials to perform their duties without fear of legal consequences, including not only liability for money damages but also the disruptions which are often attendant to civil litigation, such as pretrial discovery. Id. at 1396;see also Phillip E. Areeda & Herbert Hovenkamp, Fundamentals of Antitrust Law, § 2.04b, at 2–48 (4th ed. 2011) (“The Parker doctrine is designed to be an immunity, not merely a defense that can be offered at trial.”)

It is unnecessary to weigh in on the circuit split because this appeal presents a different question: whether the denial of Parker immunity is immediately appealable by private parties. On this question, the circuit split is much less pronounced. Even the Fifth Circuit, which otherwise extends interlocutory review to denials of Parker immunity, does not do so in cases involving private parties. See Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 292 (5th Cir.2000). Stressing the Supreme Court's repeated admonitions that the collateral order doctrine applies only to a narrow class of cases, the court in Acoustic Systems concluded the justifications for affording immediate review of the denial of Parker immunity to governmental entities are inapplicable to private parties. Id. at 291–93. The court also noted that in the context of qualified immunity, immediate appeal is available to governmental defendants but not private parties. Id. at 294 (citing authority from the First, Seventh, and Eighth Circuits); see also Weise v....