The opinion of the court was delivered by: Dalzell, J.
Plaintiff Warfield Philadelphia, L.P. ("Warfield") sues National Railroad Passenger Corporation ("Amtrak") for alleged violations of Sherman Act §§ 1 and 2, infringement of its First Amendment free speech rights, breach of contract, and tortious interference with contract. Warfield also has asserted a claim against U.S. Equities Realty, Inc. ("USER") for allegedly joining with Amtrak in violating § 1 of the Sherman Act.
Plaintiff would like to withdraw its claims against USER for breach of contract and against Amtrak for tortious interference with that contract. We will therefore grant the motions to dismiss those counts as unopposed and now consider defendants' motions to dismiss Warfield's remaining claims.
According to the first amended complaint ("complaint"),*fn1 Warfield owns and operates a parking facility at 1600 South Warfield Street in Philadelphia. Compl. at ¶ 8. It charges $8.00 for twenty-four hours of parking and provides a shuttle to 30th Street Station ("Station"), which is the primary inter-city train station in Philadelphia. Id. at ¶ 9, 11. Amtrak owns and operates a parking facility next to the Station and charges $25 for twenty-four hours of parking. Id. at ¶ 10. Warfield alleges that "thousands of passengers" use the Station daily and that "many" of them get there by car and have luggage. Id. at ¶¶ 11-12. These people "need access to parking facilities that are either within reasonable walking distance of the station, or provide shuttle transportation to and from the station." Id. at ¶ 12.
Defendant USER is the management company for the Station, but it is not involved with Amtrak's parking garage. Pl. Br. at 1; Compl. at ¶ 46. In October of 2008, Warfield -- through its agent, Fox Realty Consultants, Inc. ("Fox") -- contracted with USER for a marketing table inside the Station. Compl. at ¶ 13.
Warfield paid $4,000 for twenty-one days of marketing table use and planned to promote its parking and shuttle services there.
Id. at ¶¶ 14-15. It used the marketing table for about one day on October 1, 2008, but USER then sent plaintiff an email stating that "'[t]here is an exclusivity and conflict with the Amtrak garage so unfortunately we won't be able to have you return to 30th Street Station with your promotion.'" Id. at ¶¶ 16-17 (alteration in original). USER returned Warfield's $4,000 payment, and Warfield turned its attention to billboard advertising. Id. at ¶¶ 18-19.
On behalf of Warfield, Fox contracted with CBS Outdoor ("CBS") for the use of a billboard that plaintiff describes as "in proximity to 30th Street Station" and "located at 30th and Arch Streets in Philadelphia." Id. at ¶ 20. Warfield agreed to pay $2,500 to use the billboard from December 15, 2008 through January 11, 2009, and the proposed text for the billboard advertised Warfield's shuttle service and a fifty percent savings on parking at its lot. Id. at ¶¶ 21-22. On December 19, 2008, CBS told Warfield that Amtrak wrote a letter to CBS demanding that it remove the billboard, and CBS did so. Id. at ¶¶ 23-25.*fn2
Based solely on Amtrak's actions regarding the marketing table and the billboard, Warfield contends that "Amtrak has effectively quashed any and all of Plaintiff's advertising efforts in or around 30th Street Station." Id. at ¶ 26. Plaintiff contends that Amtrak has "made it clear that it will not tolerate advertising anywhere near the Station by lower-cost parking companies." Pl. Br. at 2. But Warfield has pled no facts regarding any of its marketing attempts "in or around" the Station other than the billboard and marketing table and has not alleged that Amtrak controls any other marketing opportunities "anywhere near the station."
Warfield has announced in a footnote that it "withdraws" its breach of contract claim in Count IV against USER, but it remains "content" to pursue that claim against Amtrak. Pl. Br. at 33 n.16. Plaintiff also "withdraws" its tortious interference claim in Count V against Amtrak regarding its short-lived contract with USER for the marketing table. Id. As mentioned above, we will thus grant the motions to dismiss those claims as unopposed. The remaining claims in plaintiff's complaint are for alleged violations of (1) § 1 of the Sherman Act ("§ 1") against Amtrak and USER (Count I), (2) § 2 of the Sherman Act ("§ 2") against Amtrak (Count II), and (3) plaintiff's First Amendment free speech rights against Amtrak (Count III). Warfield also asserts state law claims for Amtrak's alleged breach of contract regarding the marketing table (Count IV), and Amtrak's supposed tortious interference with Warfield's contract with CBS (Count VI).*fn3
Amtrak and USER have moved to dismiss all of these claims. Because Warfield has failed to plead facts that would support a finding of antitrust injury, we will dismiss Counts I and II. Regarding its free speech claim, Warfield has focused on the wrong fora and failed to establish that the fora at issue here --the billboard and the marketing table -- constitute a public forum, or that Amtrak's actions were unreasonable or not related to a legitimate government purpose. We will therefore dismiss Count III. In Warfield's breach of contract and tortious interference claims against Amtrak it seeks to recover only lost profits, but it has failed to plead facts that would support that category of damages. We will thus grant Amtrak's motion to dismiss Counts IV and VI.
A. Standard for Motion to Dismiss
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court has more recently refined Twombly to explain that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In determining whether Warfield has stated a "plausible" claim for relief, the Supreme Court has instructed that we should "draw on [our] judicial experience and common sense." Id. at 1950. The facts in Warfield's complaint "must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citations omitted).
Rather to the point regarding antitrust claims, the Supreme Court reminded us in Twombly that "it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be expensive." Id. at 558 (citations omitted). See also id. at 559 ("the threat of discovery expense will ...