The failure to allege a sufficient combination is fatal to plaintiff's complaint. It is therefore unnecessary to consider the unreasonableness of the restraint. Thus, plaintiff's argument that it is inappropriate to resolve this issue on a pretrial motion, since it is a question of fact, is irrelevant.
The other basic theory upon which plaintiff apparently relies, although plaintiff fails to articulate it fully or coherently, is that defendant, by virtue of its control over a unique service, newspaper advertising, has an obligation to deal with its customers in a nondiscriminatory fashion. While such an allegation could conceivably constitute a violation of section 2 of the Sherman Act, it fails to state a cause of action under section 1.
An obligation to deal with others has been imposed in the context of a section 2 monopolization or attempt to monopolize claim. See Otter Tail Power Co. v. United States, 410 U.S. 366, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973). Otter Tail may be viewed as imposing upon a monopolist with unique control of a service the duty to deal with others in a nondiscriminatory fashion. However, it clearly would be an undue extension of Otter Tail to impose such an obligation upon a non-monopolist. Indeed, in the absence of an intent to monopolize, a non-monopolist may unilaterally refuse to deal with others absolutely or upon the terms it specifies. See Lorain Journal Co. v. United States, 342 U.S. 143, 155, 96 L. Ed. 162, 72 S. Ct. 181 (1951); United States v. Colgate & Co., 250 U.S. 300, 307, 63 L. Ed. 992, 39 S. Ct. 465 (1919).
Plaintiff's claim is without merit, since it has not alleged that defendant has monopolized newspaper advertising services, or that it has attempted or is attempting to monopolize such market in violation of section 2 of the Sherman Act. Plaintiff's statement that a newspaper's practice of providing customers with preferred page placement has been deemed to be a violation of the Sherman Act is inadequate for the same reasons: The cases plaintiff cites in support of this statement are section 2 cases. See Lorain Journal Co. v. United States, supra; Morning Pioneer, Inc. v. Bismarck Tribune Co., 342 F. Supp. 1138 (D.N.D. 1972), aff'd, 493 F.2d 383 (8th Cir. 1974).
Thus, plaintiff's section 1 claim should be dismissed. First, plaintiff fails to allege a "combination" within the meaning of section 1. Second, the theory from which an obligation to deal in a nondiscriminatory manner is derived arises from section 2 of the Sherman Act rather than section 1. Third, the crux of plaintiff's complaint is that the Post is treating plaintiff differently than its chief competitor, Market, by not allowing plaintiff's advertisement to appear as frequently on pages 2 and 3 of the Sports Section. In fact, plaintiff's allegations fail to establish anything more than a unilateral decision by the Post to allocate its advertising positions in a certain manner. Finally, defendant has not absolutely refused to deal with plaintiff. At the most, construing all allegations most favorably to the plaintiff, defendant has refused to deal with plaintiff in certain circumstances. Even so, the contract between plaintiff and defendant expressly gives the Post authority "to refuse to deal" if no space is available.
D. Dismissal of Count III for Lack of Jurisdiction
Jurisdiction over Count III arises under the doctrine of pendent jurisdiction. Defendant argues that if the jurisdiction-conferring claims are dismissed, the pendent claim, Count III, should be dismissed as well for lack of subject matter jurisdiction. This position is well-supported.
Where pendent jurisdiction provides a court with authority to hear a state claim, a court has discretion to dismiss the state claim if the federal claims are dismissed prior to trial. The Court in United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), stated that if "the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." While Gibbs seems to mandate dismissal, more recent cases indicate that it is rather a matter within the court's discretion. See Rosado v. Wyman, 397 U.S. 397, 404-05, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); Houlihan v. Anderson-Stokes, Inc., 434 F. Supp. 1324 (D.D.C., 1977). Dismissal of the pendent claim is particularly appropriate here, since it occurs at an early stage of the case before extended discovery has taken place, and it promotes the policy of avoiding needless resolution of state claims in federal courts. See Houlihan, supra, 434 F. Supp. slip op., at 11. Since it has dismissed the federal claims, the Court clearly has authority here to dismiss the pendent claim. See Marshall v. District of Columbia, 392 F. Supp. 1012, 1018 (D.D.C. 1975).
Thus, the Court concludes that Counts I and II should be dismissed for failure to state a claim under the Robinson-Patman and Sherman Acts. Since the federal claims are dismissed, Count III, the pendent claim, is dismissed for lack of subject matter jurisdiction. The defendant's motion for judgment on the pleadings is granted and the entire complaint is thereby dismissed.