Innovation Marine Protein, Llc et al v. Pacific Seafood Group et al

Motion to Dismiss for Failure to State a Claim . Oral Argument requested.

D. Or.July 12, 2017

Page i - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Dennis P. Rawlinson, P.C., OSB No. 763028 dennis.rawlinson@millernash.com Nicholas H. Pyle, OSB No. 165175 nicholas.pyle@millernash.com MILLER NASH GRAHAM & DUNN LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: (503) 224-5858 Facsimile: (503) 224-0155 Attorneys for Defendant California Shellfish Company, Inc. IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON (Eugene Division) INNOVATION MARINE PROTEIN, LLC, an Oregon limited liability company; and FRONT ST. MARINE LLC, an Oregon limited liability company, Plaintiffs, v. PACIFIC SEAFOOD GROUP; TRIDENT SEAFOODS CORPORATION, a Washington corporation; CALIFORNIA SHELLFISH COMPANY, INC., a California corporation; FRANK DULCICH; DULCICH, INC., an Oregon corporation; CS PROPERTIES HOLDING COMPANY, LLC, a Delaware limited liability company; and TNMP PROPERTIES, LLC, a Delaware limited liability company, Defendants. Case No. 6:17-cv-00815-AA DEFENDANT CALIFORNIA SHELLFISH COMPANY, INC.'S MOTION TO DISMISS ORAL ARGUMENT REQUESTED Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 1 of 27 TABLE OF CONTENTS Page Page ii - Defendant California Shellfish Company, Inc.'s Motion to Dismis MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 INTRODUCTION ......................................................................................................................... 1 ALLEGATIONS ............................................................................................................................ 3 LEGAL STANDARD .................................................................................................................... 5 ARGUMENT ................................................................................................................................. 6 I. FRONT ST. MARINE CANNOT PLEAD ANTITRUST STANDING BECAUSE IT HAS NOT SUFFERED AN ANTITRUST INJURY .................... 6 A. As A Prospective Landlord, Front St. Marine Cannot Demonstrate Antitrust Injury........................................................................................... 7 B. Front St. Marine Is Not A Participant In the Market In Which Defendants Are Alleged To Have Restrained Competition ....................... 9 C. Front St. Marine Cannot Plead Antitrust Injury Because Its Alleged Injury Does Not Flow From That Which Makes Defendants' Alleged Acts Unlawful ............................................................................ 10 D. Front St. Marine Pleads No Facts To Establish That It (Or Its Future, Unnamed Tenant) Is Prepared To Enter The Market .................. 12 II. THE COMPLAINT FAILS TO ALLEGE A PLAUSIBLE CONSPIRACY TO RESTRAIN COMPETITION OR MONOPOLIZE A MARKET ................ 14 A. Front St. Marine Has Not Alleged An Impact On Competition In Any Seafood Processing Market .............................................................. 14 B. Front St. Marine's Relevant Market Allegations Are Insufficient, Implausible, And Illogical ....................................................................... 15 III. THE NEWPORT PROPERTIES ARE NOT "ESSENTIAL FACILITIES" UNDER ANTITRUST LAW .............................................................................. 17 IV. FRONT ST. MARINE SEEKS DIVESTITURE AGAINST A PARTY THAT HAS NOTHING TO DIVEST ................................................................. 18 V. THE FLAWS IN THE COMPLAINT CANNOT BE CURED THROUGH AMENDMENT.................................................................................................... 19 CONCLUSION ............................................................................................................................ 20 Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 2 of 27 Page iii - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Cases AFMS, LLC v. United Parcel Serv. Co., No. CV10-05830, 2011 WL 13135632 (C.D. Cal. May 27, 2011) .........................................10 Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536 (9th Cir. 1991) ...................................................................................................18 American Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051 (9th Cir. 1999) ...............................................................................................6, 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................................................................................5, 6 Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477 (1977) .........................................................................................................2, 6, 15 Bubar v. Ampco Foods, Inc., 752 F.2d 445 (9th Cir. 1985) .............................................................................................12, 13 Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984) ...................................................................................................6 Coalition For ICANN Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495 (9th Cir. 2010) ...................................................................................................16 Eagle v. Star-Kist Foods, Inc., 812 F.2d 538 (9th Cir. 1987) ...................................................................................................10 Ehredt Underground, Inc. v. Commonwealth Edison Co., 90 F.3d 238 (7th Cir. 1996) .....................................................................................................15 Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO, Local Lodge No. 1821 v. Verso Corp., 153 F. Supp. 3d 419 (D. Me. 2015) .........................................................................................19 Jebaco, Inc. v. Harrah's Operating Co., Inc., 587 F.3d 314 (5th Cir. 2009) .............................................................................................12, 13 Jensen Enterprises Inc. v. Oldcastle Precast Inc., No. C 06-247, 2009 WL 440492 (N.D. Cal. Feb. 23, 2009) ...................................................12 Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 3 of 27 Page iv - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) .....................................................................................................5 Lucas Automotive Engineering, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228 (9th Cir. 1998) ......................................................................................... 10 - 12 McCabe Hamilton & Renny Co., Ltd. v. Matson Navigation Co., Inc., No. 08-00080, 2008 WL 2233740 (D. Haw. Apr. 9, 2008) .....................................................12 In re Napster, Inc. Copyright Litig., 354 F. Supp. 2d 1113 (N.D. Cal. 2005) ...................................................................................13 Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038 (9th Cir. 2008) .................................................................................................15 NicSand, Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) (en banc) .....................................................................................6 Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris Inc., 185 F.3d 957 (9th Cir. 1999) ...............................................................................................7, 10 Pool Water Prods. v. Olin Corp., 258 F.3d 1024 (9th Cir. 2001) .................................................................................................14 Rice v. Treasure Island Assocs., 117 F.3d 1426 (9th Cir. 1997) .................................................................................................10 Rosenberg v. Cleary, Gottlieb, Steen & Hamilton, 598 F. Supp. 642 (S.D.N.Y. 1984).............................................................................................8 Somers v. Apple, Inc., 729 F.3d 953 (9th Cir. 2013) ........................................................................................... passim Southhaven Land Co, Inc. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir. 1983) ...................................................................................................8 Southwest Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374 (7th Cir. 1987) ...................................................................................................8 Stamatakis Indus., Inc. v. King, 965 F.2d 469 (7th Cir. 1992) .....................................................................................................8 Tanaka v. Univ. of S. Cal., 252 F.3d 1059 (9th Cir. 2001) .................................................................................................16 Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 4 of 27 Page v - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566 (2d Cir. 1990).....................................................................................................18 US Airways Grp., Inc. v. British Airways PLC, 989 F. Supp. 482 (S.D.N.Y. 1997)...........................................................................................15 Other Authorities Federal Rule of Civil Procedure 12(b)(6) ........................................................................................1 Phillip E. Areeda, Herbert Hovenkamp, et al., Antitrust Law, Vol. IIA. ....................................7, 8 Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 5 of 27 Page 1 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 COMPLIANCE WITH LOCAL RULE 7-1 In compliance with Local Rule 7-1, counsel for defendant California Shellfish Company, Inc. ("Cal-Shell") made a good faith effort to resolve the disputes that are the subject of this motion with counsel for plaintiffs. The parties did not reach agreement on a resolution. MOTION Cal-Shell moves for dismissal of all claims asserted against it pursuant to Federal Rule of Civil Procedure 12(b)(6). This motion is based on the complaint, the following memorandum of points and authorities, and such other argument as the Court may allow. INTRODUCTION Plaintiff Front St. Marine LLC's allegations are incomplete and implausible, and its antitrust theories do not withstand scrutiny. Front St. Marine's claims against Cal-Shell under Sections 1 and 2 of the Sherman Antitrust Act should be dismissed with prejudice. First, Front St. Marine cannot meet the threshold requirement of an antitrust plaintiff to plead antitrust injury. Front St. Marine's conclusory allegations assert a conspiracy among two seafood processors (Cal-Shell and defendant Pacific Seafood Group) to suppress prices and restrict competition. But, even if it alleged sufficient facts to describe a plausible conspiracy (it does not), Front St. Marine is not an entity with standing to bring antitrust claims regarding alleged anticompetitive activity in the seafood processing industry. Front St. Marine is not a competing seafood processor; Front St. Marine is not a fishing company selling its catch to seafood processors; and Front St. Marine is not a consumer buying seafood from seafood processors. Instead, Front St. Marine is a prospective landlord who is frustrated it failed in its bid to purchase Cal-Shell's two properties on the waterfront in Newport, Oregon. Front St. Marine believes it could have rented out these properties to a (unidentified) seafood processor to Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 6 of 27 Page 2 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 compete against Pacific Seafood. It is well-established that injuries to landlords stemming from alleged anticompetitive activity in the markets of their tenants are not injuries "of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489 (1977). Front St. Marine, therefore, cannot establish antitrust injury, a prerequisite for any antitrust plaintiff. There are multiple other dispositive reasons Front St. Marine cannot allege antitrust injury: Front St. Marine is not a participant in the market in which defendants are alleged to have restrained competition; Front St. Marine would have suffered an identical injury if any other entity had purchased the Newport properties; and Front St. Marine neither intended nor prepared to enter the market to compete against Cal-Shell and Pacific Seafood. Each one of these defects is independently sufficient to bar Front St. Marine's claims. Even setting aside the lack of antitrust injury, Front St. Marine's complaint otherwise fails to state a claim against Cal-Shell. The complaint does not allege a coherent antitrust theory to satisfy the pleading requirements of Iqbal/Twombly. The complaint's allegations regarding a conspiracy to restrain or monopolize trade in a relevant market are confusing, incomplete, and insufficient. The complaint's implicit suggestion that the Newport properties at issue here are somehow "essential facilities" under antitrust law is also meritless. And, finally, the divestiture Front St. Marine seeks as its sole remedy against Cal-Shell could never be granted because Cal-Shell does not own the property to be divested. These flaws are fatal to Front St. Marine's claims and the complaint cannot be cured by amendment. Front St. Marine cannot plead around the facts it has already alleged that Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 7 of 27 Page 3 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 prove its lack of antitrust injury and lack of a cognizable antitrust theory. Accordingly, Cal-Shell respectfully requests the claims against it be dismissed with prejudice. ALLEGATIONS Plaintiffs in this action are two separate, unrelated entities bringing allegations regarding two separate, unrelated antitrust conspiracies. The first set of allegations brought by plaintiff Innovation Marine Protein, LLC alleges a conspiracy between defendant Pacific Seafood Group (collectively, with its related entities, as "Pacific Seafood") and defendant Trident Seafoods Corporation. Compl. ¶¶ 31-47. The second set of allegations brought by plaintiff Front St. Marine alleges an entirely separate conspiracy between defendant Pacific Seafood Group and defendant Cal-Shell. Compl. ¶¶ 48-52. This motion to dismiss concerns only the latter set of allegations brought by Front St. Marine against Cal-Shell and Pacific Seafood. As plaintiff alleges, Pacific Seafood and Cal-Shell are both seafood processing companies with operations on the West Coast. Compl. ¶¶ 19, 24. Front St. Marine never asserts that it is a seafood processor or that it ever intends to be a seafood processor—in other words, Front St. Marine is not a competitor to Cal-Shell or Pacific Seafood. Instead, Front. St. Marine is a landlord that owns property on the Newport waterfront. Compl. ¶¶ 18, 66. Front St. Marine alleges it currently owns two lots on the waterfront that it leases to a live crab processor. Compl. ¶ 67. Front St. Marine states that the reason for this antitrust action is because Front St. Marine was frustrated in its desire to expand its Newport waterfront property holdings in 2013. Compl. ¶ 2. Front St. Marine alleges it made an offer to buy Cal-Shell's waterfront properties in Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 8 of 27 Page 4 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 December 2013 for $1.8 million. Compl. ¶ 48. The purchase would have resulted in the removal of Cal-Shell's operations (i.e., removing Cal-Shell as a competitor in Newport) and Front St. Marine's construction of new "seafood processing infrastructure." Compl. ¶ 48. Front St. Marine alleges that instead of accepting its offer to close down its operations in Newport and sell the properties to Front St. Marine, Cal-Shell instead chose to sell the properties to Pacific Seafood for $1,037,500. Compl. ¶ 50. Front St. Marine includes no other details on the sale to Pacific Seafood, such as whether Pacific Seafood's offer (unlike Front St. Marine's offer) allowed Cal-Shell to continue operating at the properties through a leaseback provision or some other agreement. Although Front St. Marine alleges that Pacific Seafood is now operating the ice plant located on the properties, Front St. Marine never states that Cal-Shell has ceased its operations on the properties. Compl. ¶ 52. In other words, Front St. Marine omits from its antitrust complaint an allegation that the sale of the properties to Pacific Seafood reduced competition. This is because Front St. Marine (and anyone who walks along the waterfront in Newport) is perfectly aware that to this day (two years after the sale), Cal-Shell is still operating in Newport and competing against Pacific Seafood. Front St. Marine alleges three seafood product markets are relevant to its claims: "West Coast Seafood Markets for Groundfish, Pacific Onshore Whiting and Pacific Coldwater Shrimp." Compl. ¶¶ 25-28. Front St. Marine does not allege which of these markets Cal-Shell operates in on the West Coast; does not allege what type of seafood Cal-Shell buys and unloads in Newport; and does not allege what type of seafood Front St. Marine's (unidentified) tenant would have processed if Front St. Marine had purchased the properties. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 9 of 27 Page 5 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 For the antitrust claims against Cal-Shell, Front St. Marine seeks only one remedy: "a Court order requiring Pacific Seafood Group to divest the property acquired from California Shellfish Company, Inc. in 2015 and to transfer the property to plaintiff Front St. Marine, LLC for the same price paid by PSG to Cal-Shell." Compl. at 35. Front St. Marine does not seek any damages against Cal-Shell. LEGAL STANDARD "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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or the "formulaic recitation of the elements of a cause of action," Twombly, 550 U.S. at 555, and must rise above the mere conceivability or possibility of unlawful conduct that entitles the pleader to relief, Iqbal, 556 U.S. at 678–79. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (citation and quotes omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc). Nor is it enough that the complaint is "factually neutral"; rather, it must be "factually suggestive." Twombly, 550 U.S. at 557 n.5. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 10 of 27 Page 6 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court." Twombly, 550 U.S. at 557 (quotes and alterations omitted). "As the Supreme Court has emphasized, its insistence on specificity of facts is warranted before permitting a case to proceed into costly and protracted discovery in an antitrust case . . . ." Somers v. Apple, Inc., 729 F.3d 953, 966 (9th Cir. 2013); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) ("[T]he 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."). ARGUMENT I. FRONT ST. MARINE CANNOT PLEAD ANTITRUST STANDING BECAUSE IT HAS NOT SUFFERED AN ANTITRUST INJURY A private party wishing to bring an antitrust action must establish antitrust standing. American Ad Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1054 & n.3 (9th Cir. 1999). "[A]ntitrust standing is a threshold, pleading-stage inquiry and when a complaint by its terms fails to establish this requirement" it must be dismissed "as a matter of law." NicSand, Inc. v. 3M Co., 507 F.3d 442, 450 (6th Cir. 2007) (en banc); Somers v. Apple, Inc., 729 F.3d 953, 963 (9th Cir. 2013) (affirming dismissal of antitrust claim because plaintiff failed to "plead[] sufficient facts to state a plausible antitrust injury"). A required element of antitrust standing is antitrust injury. American Ad Management, 190 F.3d at 1055. Antitrust injury is "injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 11 of 27 Page 7 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Corp. v. Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489 (1977). Under Ninth Circuit law, a plaintiff must plead sufficient facts to plausibly demonstrate five elements of an antitrust injury: (1) unlawful conduct; (2) causing an injury to the plaintiff; (3) that flows from that which makes the conduct unlawful; (4) that is of the type the antitrust laws were intended to prevent; and (5) the injured party is a participant in the same market as the alleged malefactors. Somers, 729 F.3d at 963; see also Phillip E. Areeda, Herbert Hovenkamp, et al., Antitrust Law, Vol. IIA, ¶ 337d (4th ed. 2013) ("Areeda & Hovenkamp") (because antitrust injury "depends less on the plaintiff's proof than on the logic of its complaint and its theory of injury", this inquiry is "well suited to prediscovery disposition"). Antitrust injury is required whether a plaintiff seeks damages or injunctive relief. Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris Inc., 185 F.3d 957, 966 (9th Cir. 1999). Front St. Marine's own allegations demonstrate its lack of antitrust injury. A. As A Prospective Landlord, Front St. Marine Cannot Demonstrate Antitrust Injury Front St. Marine is not a competitor to Cal-Shell or Pacific Seafood. Rather, Front St. Marine is an aspiring landlord. As such, Front St. Marine cannot establish that it is a participant in the antitrust market it has alleged; cannot establish that its alleged injury flows from that which makes the alleged conduct unlawful; and cannot establish that its injuries are of the type the antitrust laws were intended to prevent. See Somers, 729 F.3d at 963 (listing elements of antitrust injury). In the complaint, Front St. Marine describes itself as having a mission "to acquire and develop Newport waterfront industrial property for the express purpose of building [seafood processing] infrastructure." Compl. ¶ 18. Front St. Marine never states that it would process Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 12 of 27 Page 8 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 seafood on the Newport properties (or on any other properties)—because Front St. Marine has absolutely no intention of doing so. Front St. Marine is only an aspiring landlord and developer of the Newport properties. Indeed, Front St. Marine is already a landlord on the Newport waterfront, alleging it leases two lots just down the street to a live crab buyer. Compl. ¶ 67. Courts and antitrust authorities have concluded that landlords/lessors lack standing to assert antitrust claims for alleged anticompetitive activity in the markets of their tenants/lessees. Areeda & Hovenkamp, Vol. IIA, ¶ 351a (explaining landlords and licensors generally lack standing to challenge illegal restraints in the markets "served by their licensees and tenants"); Southhaven Land Co, Inc. v. Malone & Hyde, Inc., 715 F.2d 1079 (6th Cir. 1983) (owner-lessor of retail commercial space lacked antitrust standing against grocery store retailer); Rosenberg v. Cleary, Gottlieb, Steen & Hamilton, 598 F. Supp. 642 (S.D.N.Y. 1984) (developer of shopping mall lacked antitrust standing because developer was not a direct participant in the retail grocery market). In economic terms, landlords are essentially suppliers to direct market participants and their injuries are too secondary and indirect to fall within the ambit of antitrust law. See Southwest Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374, 1379 (7th Cir. 1987) ("[A]s a general rule suppliers of an injured customer may not seek recovery under the antitrust laws because their injuries are too indirect, secondary, or remote.") (quotes omitted); see also Stamatakis Indus., Inc. v. King, 965 F.2d 469, 471 (7th Cir. 1992) (“[A] producer's loss is no concern of the antitrust laws, which protect consumers from suppliers rather than suppliers from each other.”). Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 13 of 27 Page 9 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 As a landlord and developer, Front St. Marine lacks standing to bring claims regarding alleged anticompetitive activity in the seafood processing industry, and its claims should be dismissed. B. Front St. Marine Is Not A Participant In the Market In Which Defendants Are Alleged To Have Restrained Competition Front St. Marine's status as a landlord highlights its lack of antitrust injury. However, even if Front St. Marine were some other type of entity, its claims would still be barred because it is not a participant in the market in which Front St. Marine alleges defendants restrained competition. See Somers, 729 F.3d at 963 (fifth element of antitrust injury requires plaintiff plead it is a participant in the same market as the alleged malefactors); American Ad Management, 190 F.3d at 1055 ("Parties whose injuries, though flowing from that which makes the defendant's conduct unlawful, are experienced in another market do not suffer antitrust injury."). Under the title "Relevant Product Markets," section four of the complaint sketches out supposed "West Coast Seafood Markets for Groundfish, Pacific Onshore Whiting and Pacific Coldwater Shrimp." Compl. at 10. As explained infra, plaintiffs' descriptions of these markets are flawed and inadequate. However, even if it had adequately and plausibly alleged a relevant market, Front St. Marine is not a participant in that market. Front St. Marine is not a fishermen catching and selling groundfish, Pacific onshore whiting, or Pacific coldwater shrimp. Front St. Marine is not a processor buying groundfish, Pacific onshore whiting, or Pacific coldwater shrimp. And Front St. Marine is not even the end consumer buying groundfish, Pacific onshore whiting, or Pacific coldwater shrimp. Instead, Front St. Marine is an aspiring landlord looking to purchase a piece of property. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 14 of 27 Page 10 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Because it is not a participant in the same market as the alleged malefactors, Front St. Marine cannot state an antitrust injury. Eagle v. Star-Kist Foods, Inc., 812 F.2d 538, 540–41 (9th Cir. 1987) (no antitrust injury to tuna fishing vessel crew members because they were neither consumers of the defendant canneries' goods or competitors of the canneries in the restrained market); Oregon Laborers-Employers, 185 F.3d at 966–67 (no antitrust standing to assert claims for injunctive relief because plaintiffs "are neither consumers nor competitors in the relevant market of cigarettes and tobacco products"); Rice v. Treasure Island Assocs., 117 F.3d 1426 (9th Cir. 1997) (no antitrust injury because plaintiff was neither consumer nor competitor in the relevant market); AFMS, LLC v. United Parcel Serv. Co., No. CV10-05830, 2011 WL 13135632, at *9 (C.D. Cal. May 27, 2011) (no antitrust injury where "[t]he competitive harm [plaintiff] identifies—the lessening of competition and the raising of prices in the market for time sensitive package shipping and delivery—occurs in a market in which [plaintiff] does not participate"). C. Front St. Marine Cannot Plead Antitrust Injury Because Its Alleged Injury Does Not Flow From That Which Makes Defendants' Alleged Acts Unlawful Front St. Marine also cannot show antitrust injury because it would have suffered the same alleged "injury" whether the Newport properties had been purchased by Pacific Seafood or any other person or entity. Lucas Automotive Engineering, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228 (9th Cir. 1998). Lucas Automotive is instructive and controlling. In that case the Ninth Circuit considered antitrust claims brought by a distributor and downstream purchaser of vintage automobile tires. Firestone produced the tires and sold them to plaintiff Lucas Automotive and a competitor named Coker Tire for sale to end users. Id. at 1230. Firestone invited plaintiff and Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 15 of 27 Page 11 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Coker Tire to bid on an exclusive distributorship. Id. Plaintiff lost the bid. Id. Plaintiff sued, alleging various causes of action including antitrust claims against Coker Tire, the winner of the bid. Id. at 1231. Plaintiff claimed it had been injured because it had been excluded from participating in the vintage tire market at the distribution level, and sought to recover treble damages and to compel divestiture of the Firestone distributorship contract. Id. at 1232. The Ninth Circuit held plaintiff could not establish antitrust injury to assert a claim for either treble damages or divestiture. Id. at 1233, 1235. To establish antitrust injury, plaintiff's alleged injury must "flow[] from that which makes defendants' acts unlawful." Id. at 1233 (quoting Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 113 (1986)). Plaintiff alleged that its "injury is that it has been foreclosed" from the supplier market for vintage tires. Lucas Automotive, 140 F.3d at 1233. "However, [plaintiff] would have suffered the same injury had a small business acquired the exclusive right to manufacture and to distribute Firestone tires." Id. The Ninth Circuit held this flaw in plaintiff's injury allegations was dispositive and fatal to its antitrust claims. Id. Setting aside the fact that Front St. Marine is a landlord and thus too remote a party to bring antitrust claims against seafood processors, Front St. Marine's claims are also foreclosed by Lucas Automotive. As in Lucas Automotive, Front St. Marine lost out to another party on obtaining a piece of property (here, real property; there, a distributor contract). As in Lucas Automotive, Front St. Marine asks for divestiture of the property it failed to obtain and which it claims is essential to be in the market. But just as in Lucas Automotive, Front St. Marine would have suffered an identical "injury" if any other entity beside Pacific Seafood, including a different competitor, had purchased the Newport properties. Indeed, Front St. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 16 of 27 Page 12 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Marine would have suffered the identical injury even if a non-seafood processor had purchased the properties. A developer could have bought these properties and built a restaurant, a coffee shop, or a petting zoo. Front St. Marine's alleged injury would be exactly the same. Per Lucas Automotive, Front St. Marine's alleged injury does not flow from that which makes defendants' acts unlawful. Therefore, Front St. Marine cannot establish antitrust injury. See also McCabe Hamilton & Renny Co., Ltd. v. Matson Navigation Co., Inc., No. 08- 00080, 2008 WL 2233740, at *6 (D. Haw. Apr. 9, 2008) (relying on Lucas Automotive and holding plaintiff failed to allege antitrust injury); Jensen Enterprises Inc. v. Oldcastle Precast Inc., No. C 06-247, 2009 WL 440492, at *7 (N.D. Cal. Feb. 23, 2009), aff'd, 375 F. App'x 730 (9th Cir. 2010) (relying on Lucas Automotive and holding plaintiff failed to establish antitrust injury); Jebaco, Inc. v. Harrah's Operating Co., Inc., 587 F.3d 314, 321–22 (5th Cir. 2009) (citing Lucas Automotive and holding plaintiff would have suffered the same harm whether defendant retained the assets in question or sold them to any other party). D. Front St. Marine Pleads No Facts To Establish That It (Or Its Future, Unnamed Tenant) Is Prepared To Enter The Market Front St. Marine also cannot establish antitrust standing because it has alleged no facts to demonstrate that it (or its theoretical future tenant) is prepared to enter the market to compete with Pacific Seafood, Cal-Shell, or any other seafood processor. As a general matter, to establish its standing to bring an antitrust claim, a prospective competitor must show "a genuine intent to enter the market and a preparedness to do so." Bubar v. Ampco Foods, Inc., 752 F.2d 445, 450 (9th Cir. 1985). To evaluate intent and preparedness, the Ninth Circuit has identified the types of facts a prospective competitor must plead: (1) the background and experience of plaintiff in its prospective business; (2) affirmative action on the part of plaintiff to engage in the Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 17 of 27 Page 13 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 proposed business; (3) the ability of plaintiff to finance the business and the purchase of equipment and facilities necessary to engage in the business; and (4) the consummation of contracts by plaintiff. Id. at 452. "Such threshold proof is necessary to protect antitrust litigation from frivolous claims." Jebaco, 587 F.3d at 321 (affirming dismissal of complaint where plaintiff could not establish antitrust injury as a potential competitor). As discussed supra, Front St. Marine cannot demonstrate any genuine intention to compete in any seafood processing markets, because Front St. Marine is a nascent landlord, not a nascent seafood processor. See Bubar, 752 F.2d at 450-51 (first determining that plaintiffs likely lacked standing because they were not even the actual potential competitor, and then holding plaintiffs also failed to demonstrate preparedness to enter the market). However, even if judged on the basis of the unknown plans of its unnamed tenant, there are no allegations in the complaint to satisfy the Ninth Circuit standard for assessing the antitrust standing of a nascent competitor. There are zero allegations establishing the: background and experience of any entity in seafood processing; affirmative steps taken by any entity to become a seafood processor; the purchase of equipment or obtaining of financing necessary to become a seafood processor; or the execution of a single contract concerning seafood processing. Accordingly, even if Front St. Marine could claim to be a prospective competitor (it can't), Front St. Marine has failed to plead any facts required to establish the antitrust standing of a prospective competitor. See In re Napster, Inc. Copyright Litig., 354 F. Supp. 2d 1113, 1123–24 (N.D. Cal. 2005) (affirming dismissal of antitrust counter-claims of alleged prospective competitor where counter-claimant failed to allege either the investments it planned to make or the steps it had taken in preparation for competing). Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 18 of 27 Page 14 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 II. THE COMPLAINT FAILS TO ALLEGE A PLAUSIBLE CONSPIRACY TO RESTRAIN COMPETITION OR MONOPOLIZE A MARKET In addition to failing to plead an adequate antitrust injury, Front St. Marine fails to allege any impact on competition and its relevant market allegations are implausible and illogical under basic economic principles. Somers, 729 F.3d at 965 ("Under the plausibility standard, [plaintiff] must allege specific facts that raise an antitrust claim above the speculative level.") (citing Twombly, 550 U.S. at 555). A. Front St. Marine Has Not Alleged An Impact On Competition In Any Seafood Processing Market Front St. Marine theorizes that competition in ex vessel seafood markets was harmed when Cal-Shell sold the Newport properties to Pacific Seafood instead of Front St. Marine. Compl. ¶ 6. Front St. Marine implies that if it had been able to buy the properties, its (unidentified) future tenant would have entered the market to compete against Pacific Seafood, and therefore increased competition in the market. Compl. ¶ 8. As an initial matter, it is nonsensical that the foundation of its antitrust case complaining of lack of competition is Front. St. Marine's own offer to eliminate a competitor from the marketplace. Even beyond that logical incoherence, plaintiff's theory of decreased competition is only tenable if Pacific Seafood's purchase of the properties actually decreased competition. But Front St. Marine does not allege a decrease in competition because it cannot do so. Front St. Marine is well-aware that Cal-Shell is still operating on the properties just as it was before the sale of the underlying land. Front St. Marine has therefore failed to allege any impact on competition in the seafood processing market as a result of the sale—there are no facts alleged to demonstrate that Cal-Shell is not continuing to operate on the properties and competing against Pacific Seafood. See Pool Water Prods. v. Olin Corp., 258 F.3d 1024, 1034 Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 19 of 27 Page 15 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 (9th Cir. 2001) (“To show antitrust injury, a plaintiff must prove that his loss flows from an anticompetitive aspect or effect of the defendant's behavior, since it is inimical to the antitrust laws to award damages for losses stemming from acts that do not hurt competition.") (quotes omitted). Front St. Marine's complaint boils down to a wish that it (or its future tenant) could be a competitor instead of Cal-Shell. But Front St. Marine's parochial desire to displace Cal-Shell as a competitor is of no concern to antitrust law—antitrust laws "were enacted for the protection of competition not competitors." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (quotes omitted); Ehredt Underground, Inc. v. Commonwealth Edison Co., 90 F.3d 238, 240 (7th Cir. 1996), cert. denied, 519 U.S. 1056 (1997) ("Over and over, we stress that antitrust is designed to protect consumers from producers, not to protect producers from each other or to ensure that one firm gets more of the business."); US Airways Grp., Inc. v. British Airways PLC, 989 F. Supp. 482, 489 (S.D.N.Y. 1997) ("The antitrust laws are not meant to realign competitors to assist certain competitors over others."). B. Front St. Marine's Relevant Market Allegations Are Insufficient, Implausible, And Illogical Front St. Marine must allege a plausible relevant market for its antitrust claims. Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1044 n.3 (9th Cir. 2008) ("The 'relevant market' and 'market power' requirements apply identically under [Section 1 and Section 2] of the Act."). "[T]he term 'relevant market' encompasses notions of geography as well as product use, quality, and description. The geographic market extends to the 'area of effective competition' where buyers can turn for alternative sources of supply. The product market includes the pool of goods or services that enjoy reasonable interchangeability of use and cross- Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 20 of 27 Page 16 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 elasticity of demand." Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063 (9th Cir. 2001) (quotes and alterations omitted). In the section of the complaint on "Relevant Product Markets," plaintiffs describe three "seafood input markets" for groundfish, offshore whiting, and pink shrimp, which are "geographically confined to the West Coast from Ft. Bragg, California to the Canadian border." Compl. ¶¶ 25-27. Plaintiffs also allege that these three seafood input markets have five "geographically distinct" submarkets, including the "central Oregon Coast." Id. These markets are insufficiently pled and fail to show "an antitrust claim [that] is plausible in light of basic economic principles." See Coalition For ICANN Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501 (9th Cir. 2010) (quotes omitted). First, Front St. Marine entirely fails to allege several basic facts. There is no allegation regarding the seafood markets Cal-Shell participates in. There is no allegation regarding the seafood Cal-Shell buys or processes in Newport, nor any allegation regarding the other seafood input markets Cal-Shell participates in on the "central Oregon Coast." Second, there is no allegation regarding what seafood input market Front St. Marine (or its unidentified tenant) was planning to participate in. Lastly, Front St. Marine's theory regarding a "central Oregon Coast" market is unsupported and contradicts itself. Front St. Marine offers no explanation how fish and shrimp caught off the central Oregon Coast is economically distinct and non-interchangeable with fish and shrimp caught off the southern Oregon Coast, the northern Oregon Coast, the California Coast, or the Washington Coast. See Somers, 729 F.3d at 965 ("Under the plausibility standard, [plaintiff] must allege specific facts that raise an antitrust claim above the speculative level."). Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 21 of 27 Page 17 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 In addition, Front St. Marine alleges Cal-Shell participated in the conspiracy (and even sold an asset to its competitor at an allegedly below-market price)1 because Cal-Shell would benefit from Pacific Seafood's market power to suppress the prices paid by seafood processors to fishermen. Compl. ¶ 6. But if Cal-Shell was agreeing to exit this hypothetical "central Oregon Coast" market, how did Cal-Shell hope to benefit from Pacific Seafood's suppression of prices in the market it had just exited? As with the other holes in its theories, Front St. Marine provides no answer. The complaint should be dismissed on this basis. See Somers, 729 F.3d at 965 (on motion to dismiss, holding plaintiff's antitrust "theory 'stays in neutral territory,' and 'without some further factual enhancement it stops short of the line between possibility and plausibility' of antitrust injury") (quoting Twombly, 550 U.S. at 557). III. THE NEWPORT PROPERTIES ARE NOT "ESSENTIAL FACILITIES" UNDER ANTITRUST LAW Although it is impossible to tell from the complaint, Front St. Marine appears to be glancing toward some type of essential facilities theory. Front St. Marine states that it was prevented "from acquiring an ideal site for seafood processing in Newport," Compl. ¶ 91 (emphasis added), and implies that somehow the sole factor keeping it out of the seafood processing market is its inability to buy the Cal-Shell properties. There is no authority for the proposition that a party has a right to obtain an "ideal" site for its business operations, much less the right to acquire that "ideal" site from an alleged competitor. Indeed, the essential facilities 1 Front St. Marine also bizarrely alleges that "[u]pon information and belief, Pacific Seafood purchased the property at a sizeable discount in order to avoid the type of comparable sales transaction that would significantly increase the assessed value of Pacific Seafood's considerable seafood processing holdings on the Yaquina Bay waterfront." Compl. ¶ 51. In other words, Front St. Marine alleges Cal-Shell agreed to accept less money from its competitor in order to help that competitor pay lower property taxes. It doesn't require a degree in economics to see this alleged agreement makes no sense. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 22 of 27 Page 18 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 doctrine holds precisely the opposite. "Stated most generally, the essential facilities doctrine imposes liability when one firm, which controls an essential facility, denies a second firm reasonable access to a product or service that the second firm must obtain in order to compete with the first." Alaska Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 542 (9th Cir. 1991) (emphasis added); see also Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir. 1990) ("[A]s the word 'essential' indicates, a plaintiff must show more than inconvenience, or even some economic loss; he must show that an alternative to the facility is not feasible."). There is no explanation in the complaint why Front St. Marine must obtain the Newport facilities in order to compete with Cal-Shell or Pacific Seafood. Nor could there be such an explanation. Front St. Marine may have considered those facilities "ideal" for development, but they are not essential. Front St. Marine itself pleads that the properties are non-essential, because Front St. Marine admits it owns other property on the Newport waterfront. Compl. ¶¶ 66-67. In addition, Front St. Marine could build "seafood processing infrastructure" virtually anywhere else on the coast and bring seafood to its facilities via the public docks. The essential facilities doctrine will offer no shelter to Front St. Marine. IV. FRONT ST. MARINE SEEKS DIVESTITURE AGAINST A PARTY THAT HAS NOTHING TO DIVEST Even aside from all these other dispositive issues, the complaint fails to state a claim against Cal-Shell because the only remedy Front St. Marine seeks—an injunction ordering Pacific Seafood to divest the Newport properties to Front St. Marine, Compl. at 35 (Prayer for Relief, 1(b) and 2(b))—is unavailable against Cal-Shell. As plaintiff pleads, Cal-Shell does not own the properties at issue. They have been conveyed to Pacific Seafood. Cal-Shell therefore Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 23 of 27 Page 19 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 has nothing to convey to Front St. Marine. No injunction could order Cal-Shell to divest itself of something it no longer owns. Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO, Local Lodge No. 1821 v. Verso Corp., 153 F. Supp. 3d 419, 429 (D. Me. 2015) ("However, the divestiture remedy would be available only against AIM as AIM now owns the Bucksport mill. The Court may not order Verso to divest itself of something it no longer owns."). V. THE FLAWS IN THE COMPLAINT CANNOT BE CURED THROUGH AMENDMENT "Although a district court should grant the plaintiff leave to amend if the complaint can possibly be cured by additional factual allegations, dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment." Somers, 729 F.3d at 960 (quotes, citation, and alteration omitted). The complaint should be dismissed with prejudice as to Cal-Shell. Front St. Marine cannot cure its lack of antitrust injury through amendment. Front St. Marine cannot amend its complaint to allege it is not a landlord; Front St. Marine cannot amend its complaint to demonstrate it would not have been harmed in precisely the same fashion if some other entity had purchased the Newport properties; and Front St. Marine cannot amend its complaint to demonstrate it is operating in the same market as defendants. These are facts, not allegations that can be cured. Accordingly, Cal-Shell respectfully requests dismissal with prejudice of all claims against Cal-Shell. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 24 of 27 Page 20 - Defendant California Shellfish Company, Inc.'s Motion to Dismiss MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 CONCLUSION Front St. Marine's claims are irretrievably defective. Front St. Marine cannot plead the facts required to establish antitrust injury. In addition, Front St. Marine's allegations fail under Iqbal/Twombly, and Front St. Marine seeks a divestiture remedy against a defendant who does not own the property to be divested. The complaint should be dismissed as to Cal- Shell. Leave to amend should not be granted because the defects in the complaint, including a lack of antitrust injury, could not be cured through amendment. DATED this 12th day of July, 2017. MILLER NASH GRAHAM & DUNN LLP s/ Dennis P. Rawlinson Dennis P. Rawlinson, P.C., OSB No. 763028 dennis.rawlinson@millernash.com Nicholas H. Pyle, OSB No. 165175 nicholas.pyle@millernash.com Phone: (503) 224-5858 / Fax: (503) 224-0155 Attorneys for Defendant California Shellfish Company, Inc. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 25 of 27 Page 1 - Certificate of Service MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW T: 503.224.5858 | F: 503.224.0155 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 I hereby certify that I served the foregoing Defendant California Shellfish Company, Inc.'s Motion to Dismiss on: Mr. Michael E. Haglund Mr. Michael K. Kelley Mr. Eric J. Brickenstein Haglund Kelley LLP 200 S.W. Market Street, Suite 1777 Portland, Oregon 97201 Telephone: (503) 225-0777 Facsimile: (503) 225-1257 E-mail: mhaglund@hk-law.com E-mail: mkelley@hk-law.com E-mail: ebrickenstein@hk-law.com Attorneys for Plaintiffs Mr. Thomas R. Johnson Mr. Brian P. Samuelson Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor Portland, Oregon 97209-4128 Telephone: (503) 727-0200 Facsimile: (503) 727-2222 E-mail: TRJohnson@perkinscoie.com E-mail: BSamuelson@perkinscoie.com Attorneys for Defendant Trident Seafoods Corporation Mr. Randolph C. Foster Mr. Timothy W. Snider Ms. Rachel C. Lee Stoel Rives LLP 760 S.W. Ninth Avenue, Suite 3000 Portland, Oregon 97205 Telephone: (503) 224-3380 Facsimile: (503) 220-2480 E-mail: randy.foster@stoel.com E-mail: timothy.snider@stoel.com E-mail: rachel.lee@stoel.com Attorneys for Defendants Pacific Seafood Group, Frank Dulcich, Dulcich, Inc., CS Properties Holding Company, LLC, and TNMP Properties, LLC Mr. David J. Burman (admitted Pro Hac Vice) Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, Washington 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 E-mail: DBurman@perkinscoie.com Attorneys for Defendant Trident Seafoods Corporation by the following indicated method or methods on the date set forth below:  CM/ECF system transmission.  E-mail. As required by Local Rule 5-11, any interrogatories, requests for production, or requests for admission were e-mailed in Word or WordPerfect format, not in PDF, unless otherwise agreed to by the parties. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 26 of 27 Page 2 - Certificate of Service MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW T: 503.224.5858 | F: 503.224.0155 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204  Facsimile communication device.  First-class mail, postage prepaid.  Hand-delivery.  Overnight courier, delivery prepaid. DATED this 12th day of July, 2017. s/ Dennis P. Rawlinson Dennis P. Rawlinson, P.C., OSB No. 763028 Of Attorneys for Defendant California Shellfish Company, Inc. Case 6:17-cv-00815-AA Document 21 Filed 07/12/17 Page 27 of 27