as evidenced by its Certificate of Public Convenience. Id. at PP 27, 28. Both the City and Allegheny Power have disputed Duquesne Light's position in this regard in the proceedings presently before the PUC. Id. at PP 28, 29.
On October 28, 1996, Allegheny Power applied separately to the PUC for approval to begin supplying electrical service to the Redevelopment Zones. On December 6, 1996, Duquesne Light filed a Protest to Allegheny Power's application again stating that it had the exclusive right to service those areas. Id. at PP 30-32. On December 9, 1996, the City sought to intervene in the PUC proceeding initiated by Allegheny Power since it was directly related to the City's previously filed petition. Id. at P 34.
In the interim, on November 18, 1996, the City, through the Urban Redevelopment Authority of Pittsburgh, solicited competitive bidding from both Allegheny Power and Duquesne Light for the "electric utility infrastructure development" of the two Redevelopment Zones. Id. at P 33. Both defendants responded to the bidding requests on December 16, 1996, with decidedly different proposals. Id. at P 35. The City filed a Supplement to its original petition on January 3, 1997, informing the PUC of the Redevelopment Authorities actions. Id. at P 36.
A prehearing conference was held on Allegheny Power's Application on February 25, 1997, before the Administrative Law Judge, the Honorable Robert P. Meehan. Id. at P 39. The judge ordered that written direct testimony was to be submitted by the City and Allegheny Power on or before March 26, 1997, and by Duquesne Light on or before April 30, 1997. Hearings were scheduled for the week of June 9, 1997.
Id. at P 39. The City and Allegheny Power submitted direct testimony on March 25, 1997, as ordered. On April 7, 1997, Duquesne Light and Allegheny Power announced that they had agreed to merge the two companies.
Id. at PP 41, 42. Once the announcement of the merger was imminent, plaintiff alleges that Allegheny Power and Duquesne Light began to coordinate their efforts with respect to the pending Petition and Application proceedings. Id. at P 46.
Duquesne Light filed a petition to stay the proceedings before Judge Meehan on April 28, 1997, citing the need to assess the effect of the merger on the PUC proceedings. Id. at P 48. Judge Meehan denied the request on May 1, 1997, finding that a stay was not in the public interest and noting that construction on at least one redevelopment zone was scheduled to begin as early as June 1997. Accordingly, the hearings set for June 9, 1997, were to proceed as scheduled. Id. at PP 50-51.
On June 6, 1997, the Friday before the Monday hearings were to begin, Allegheny Power filed a Petition to Withdraw Application and Intervention with Judge Meehan, wherein it sought to withdraw its application to provide the Redevelopment Zones with electrical services and to withdraw its Intervention in the City's Petition which was designed to permit choice and competition within the Redevelopment Zones. Id. at PP 52, 53. Judge Meehan canceled the hearings scheduled for the following week and, on June 24, 1997, issued an Order granting Allegheny Power's petition to withdraw both its application and its intervention in the City's petition. Id. at P 54. As a result, plaintiff contends that it has no choice but to obtain retail electric utility service and associated electric infrastructure development in the Redevelopment Zones from Duquesne Light. Id. at P 55. These facts are said to be violative of the federal antitrust laws and to give rise to various state law claims.
Specifically, in its complaint, plaintiff has set forth claims under section 1 of the Sherman Act (Count I), and section 7 of the Clayton Act (Count II), as well as common law claims of Restraint of Trade (Count III), Civil Conspiracy (Count IV), Breach of Contract (Count V), Tortious Interference (Count VI), Breach of Covenant of Good Faith and Fair Dealing (Count VII) and Detrimental Reliance (Count VIII). Plaintiff seeks damages together with reasonable attorney fees and costs as to Counts I and Counts III through VIII and to enjoin defendants from merging.
Both defendants have filed motions to dismiss arguing that for various reasons plaintiff has not stated a claim upon which relief under the antitrust laws may be granted and that under the doctrine of exclusive primary jurisdiction this Court nevertheless lacks subject matter jurisdiction. Alternatively, under the doctrine of primary jurisdiction, defendants ask that the proceedings before this Court be stayed until such time as the proceedings before the PUC and the other regulatory agencies who are reviewing the propriety of the merger between the defendants is completed.
In reviewing a motion to dismiss under Rule 12(b)(6), all well-pleaded allegations of the complaint must be accepted as true and viewed in a light most favorable to the non-movant. Brader v. Allegheny General Hospital, 64 F.3d 869, 873 (3d Cir.1995); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). The Court is not, however, required to accept as true unsupported conclusions and unwarranted references. Schuylkill Energy Resources v. PP&L, 113 F.3d 405, 417 (3d Cir. 1997). Thus, "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," the motion to dismiss is properly granted. Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See Ala, Inc. v. CCAir, supra. The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989).
Defendants contend that the complaint should be dismissed because the City does not have standing to bring this action in the first instance. Defendants argue that as a municipality the City cannot sue in a parens patriae capacity and that it has nevertheless failed to make a requisite showing that it has suffered an "antitrust injury." The City counters that it is not only bringing the suit on its own behalf as a purchaser of electricity but that it has pled sufficient facts to support a conclusion that it has suffered or will suffer an antitrust injury. We will address the latter argument first as it appears to be dispositive of the instant motion.
Under the antitrust laws, private standing to sue for treble damages and injunctive relief is provided for in sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 & 26, respectively.
Regardless of whether a party is seeking relief under § 4 or § 16, in order to have standing to pursue private antitrust claims, a plaintiff must show more than a mere causal link between the alleged antitrust violation and the claimed injury.
See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977); Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 111-113, 93 L. Ed. 2d 427, 107 S. Ct. 484 (1986). Rather,
Plaintiff's must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation.
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra (emphasis in the original). See Barton & Pittinos v. SmithKline Beecham Corp., 118 F.3d 178, 181 (3d Cir. 1997). Thus, the mere fact that a plaintiff may have been injured by the antitrust violation is not by itself sufficient to demonstrate standing to bring an antitrust suit. Cargill, Inc. v. Montfort of Colorado, Inc., supra.
Here, plaintiff alleges that it has been injured by the "possibility of lessened competition" and that because of defendants' anticompetitive conduct -- the proposed merger and Allegheny Power's withdrawal of its application filed with the PUC to supply power to the Redevelopment Zones -- it has no choice but to obtain retail electric utility service in the Redevelopment Zones from Duquesne Light.
These injuries, in our view, do not rise to the level of antitrust injuries and preclude a finding that plaintiff has standing to pursue its antitrust action.
Plaintiff apparently does not dispute that at all times prior to this lawsuit it has purchased its electricity from Duquesne Light. Indeed, it appears that the Certificate of Public Convenience issued to Duquesne Light by the PUC provides it with the exclusive right to supply retail electric service to the City which necessarily includes the Redevelopment Zones. Although plaintiff now disputes that Duquesne Light has exclusive rights, its application to the PUC inviting competition into the Redevelopment Zone is premised on the fact that "Duquesne [Light] is at present the only electric utility possessing a certificate of public convenience . . . from the Commission to serve the City and its citizens."
It, therefore, seems clear that prior to the initiation of this suit, there was no competition in the retail market at issue and the City had no choice of utilities available to it. Thus, it seems equally clear that neither the proposed merger nor the withdrawal of Allegheny Power's application has lessened the competition within the City or the choices of utility companies available to the City. Rather, plaintiff is presently in the precise position it has always been in, namely that it must purchase its electricity from Duquesne Light. Because defendants' agreement not to compete has not caused any change in the market or any other anticompetitive effects, it precludes a finding that the City has been injured. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra. See Balaklaw v. Lovell, 14 F.3d 793, 798 (2d Cir. 1994)(Finding that a hospitals decision to grant an exclusive contract to a group of anesthesiologists to the exclusion of plaintiff did not constitute an antitrust injury since, from the consumer's point of view, nothing about the relevant market had changed.)
Plaintiff nevertheless argues that even if it hasn't already been injured by defendants' actions, the threat of loss in the future resulting from defendants' conduct is sufficient to state an antitrust injury.
Although the threat of loss from a violation of the antitrust laws is sufficient to confer standing to obtain injunctive relief, see 15 U.S.C. § 26, even the threat of a loss is necessarily contingent upon possession of that which is threatened. Plaintiff's do not enjoy competition between utility companies now and therefore cannot be threatened by the loss of competition in the future.
Moreover, the threat in the instant case is speculative at best as it is contingent on the PUC permitting competition within the City in the first instance. Until that determination is made -- and there is no guarantee that it will be made -- the City does not stand to lose anything and the defendants' proposed merger cannot be viewed as a threatened loss. See Phototron Corp. v. Eastman Kodak Co., 842 F.2d 95, 100 (5th Cir.), cert. denied, 486 U.S. 1023, 100 L. Ed. 2d 228, 108 S. Ct. 1996 (1988)("The notion that merely facing the specter of a monopoly is enough to create standing . . . is not the law.")
Nor does Blue Shield v. McCready, 457 U.S. 465, 73 L. Ed. 2d 149, 102 S. Ct. 2540 (1982), upon which plaintiff principally relies serve to alter our findings in this regard. Plaintiff relies on McCready wherein the Supreme Court rejected the defendant's argument that McCready's injuries were too remote and indirect from the alleged antitrust violation to constitute an antitrust injury for purposes of standing.
Defendants in the instant case, however, have not argued that the City's injuries are too indirect or remote from the alleged violations to confer standing upon plaintiff but rather have, in essence, argued that the City has not suffered an injury at all and that it is too speculative to assume that it may suffer an injury at some point in the future. Because McCready had, in fact, already suffered an injury the case does not bear on the question before this Court of whether or not plaintiff's prospective injuries are speculative or not.
Finally, if plaintiff has or will suffer a loss as the result of defendants' actions, it appears that, rather than suffering from a potential loss of competition, it has merely been denied the opportunity to obtain electric service within the Redevelopment Zones at a lesser price than it would otherwise have been obligated to pay. Such an injury is not only just as contingent on the PUC's decision but, more importantly, does not appear to be what the antitrust laws were designed to prevent. See Schuylkill Energy Resources v. PP&L, supra at 415, quoting Vinci v. Waste Management, Inc., 80 F.3d 1372, 1376 (9th Cir. 1996)("The antitrust laws are intended to preserve competition for the benefit of consumers in the market where the competition occurs.) As well, the absence of less expensive rates to choose from is a consequence of the lack of competition itself and does not "flow from that which makes the defendant[s'] acts unlawful". See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra. Indeed, the lack of competition within the City stems from the PUC's regulations and defendants conduct, therefore, has no bearing on the rates the City must pay to obtain electricity.
Having found that plaintiff has not suffered an antitrust injury and, thus, does not have standing to maintain an antitrust suit against defendants, it follows that Count I, II and III of the complaint should be dismissed. In addition, it is recommended that the Court decline to exercise pendent supplemental jurisdiction over plaintiff's state law claims (Counts III-VIII) pursuant to 28 U.S.C. § 1367 (c)(3), as the concerns of judicial economy, convenience and fairness to the parties are not present at this early stage of the proceedings. See West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
For these reasons, it is recommended that the motions to dismiss filed by defendants Allegheny Power and Duquesne Light (Docket Nos. 10 and 13) be granted.
Within ten (10) days of being served with a copy, any party may serve and file written objections to this Report and Recommendation. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights.
ROBERT C. MITCHELL,
United States Magistrate Judge
Dated: November 25, 1997