81 L. Ed. 2d 355 (1984), and, in accordance with due process, plaintiff's claims against defendants FCSA, Watson, Cokin, Rohe, Hines and Hinely shall be dismissed for lack of personal jurisdiction.
Claims Against NBC
(a). Antitrust Claims
Remaining before the Court are plaintiff's antitrust and state law claims against NBC. Although the complaint is replete with the vocabulary of antitrust law, the facts alleged, even accepted as true, do not state a claim under Sections 1 or 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 ("Sections 1 and 2"), or Section 3 of the Clayton Act, 15 U.S.C. § 14 ("Section 3").
Plaintiff's Section 1 claim rests on the proposition that the NBC/FCSA contract constitutes a contract, combination or conspiracy in restraint of trade. To distinguish this claim from a mere business tort, plaintiff must make a sufficient allegation of anticompetitive effects resulting from NBC's actions; absent injury to competition, injury to plaintiff as a competitor will not satisfy this pleading requirement. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977); Brown Shoe Co. v. United States, 370 U.S. 294, 320, 8 L. Ed. 2d 510, 82 S. Ct. 1502 (1962); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (6th Cir. 1980). Furthermore, unlike some horizontal relationships among competitors, the vertical arrangement between NBC and FCSA described by plaintiff cannot be characterized as per se unlawful, see Continental T.V., Inc. v. G.T.E. Sylvania, Inc., 433 U.S. 36, 53 L. Ed. 2d 568, 97 S. Ct. 2549 (1977); Transource International, Inc. v. Trinity Indus., Inc., 725 F.2d 274 (5th Cir. 1984); but instead must be analyzed under a "rule of reason": to state an actionable claim, plaintiff must allege an unreasonable restraint on competition, see National Society of Professional Engineers v. United States, 435 U.S. 679, 688, 55 L. Ed. 2d 637, 98 S. Ct. 1355 (1978); Transource International, supra. Thus, the legality of defendant's conduct turns on the consequences of that conduct in the relevant market. See Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S. Ct. 1464, 79 L. Ed. 2d 775 (1984); Havoco of America, 626 F.2d at 554.
Despite conclusory assertions that NBC's conduct will restrain competition, plaintiff has alleged no specific impact on competition in any particular market. At one point in the complaint, plaintiff challenges NBC's conduct only as it affects competition for television rights to the Bluebonnet Bowl, Holiday Bowl, Hall of Fame Bowl and Citrus Bowl, only 4 of the 21 college football bowl games scheduled to take place at the end of the 1984 season. Complaint para. 18. That market definition is unduly narrow, as it excludes rights to numerous other bowl games which are "reasonably interchangeable" from the broadcaster's standpoint. See Brown Shoe Co. v. United States, 370 U.S. at 325; Southern Pacific Communications Co. v. American Telegraph and Telephone Co., 556 F. Supp. 825 (D.D.C. 1983), aff'd 238 U.S. App. D.C. 309, 740 F.2d 980 (D.C. Cir. 1984); Gianna Enterprises v. Miss World (Jersey) Ltd., 551 F. Supp. 1348, 1354 (D.N.J. 1982) (rejecting market definition which included only international beauty pageants but excluded state and national pageants).
Even accepting for present purposes a broader market definition of "collegiate football bowl games", see Complaint paras. 8, 10, 18, the Court finds no facts to support plaintiff's bald claim of anticompetitive impact -- plaintiff has alleged no specific and demonstrable market effect of NBC's contract to cover the Citrus Bowl, and plaintiff's own loss of business with FCSA will not suffice. See Gianna Enterprises v. Miss World (Jersey) Ltd., supra; see also Car Carriers, Inc. v. Ford Motor Co., 1984-2 CCH Trade Cases P 66,220 (7th Cir. 1984); Havoco of America, 626 F.2d at 558. The Sherman Act outlaws practices that make markets less competitive and thereby hurt the people transacting with the firms in those markets. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 343, 60 L. Ed. 2d 931, 99 S. Ct. 2326 (1979). "To injure, even to cripple or destroy, one or two competitors in a market will not, if there are many competitors in that market, have much if any effect on consumers or anyone else" besides the injured competitor. Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir. 1984).
For similar reasons, plaintiff's Section 2 claims of monopolization, attempt to monopolize, and conspiracy to monopolize must be dismissed. Plaintiff makes the conclusory assertion that the NBC/FCSA agreement is a "consequence of [NBC's] dominance of power and control", Complaint para. 9, but offers not a single fact to document NBC's supposed actual or probable market power. The omission is fatal -- an essential element of a monopolization claim is "the possession of monopoly power in the relevant market ", United States v. Grinnell Corp., 384 U.S. 563, 570, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); that is, a Section 2 plaintiff must allege that the defendant has the power to control price and exclude competition generally in the relevant market. Id. at 571; Southern Pacific Communications Co., 740 F.2d at 1000. Even a claim of attempt to monopolize requires a plaintiff to plead facts alleging a dangerous probability that, if unchecked, the defendant's conduct will ripen into monopolization. Transource International, Inc. v. Trinity Indus., Inc., supra; Merit Motors, Inc. v. Chrysler Corp., 417 F. Supp. 263 (D.D.C. 1976), aff'd 187 U.S. App. D.C. 11, 569 F.2d 666 (D.C. Cir. 1977). Furthermore, a plaintiff raising claims of attempt or conspiracy to monopolize must allege a specific intent to monopolize on the part of the defendant. See e.g., Arthur S. Langenderfer, Inc. v. S.E. Johnson, 729 F.2d 1050 (6th Cir. 1984).
Plaintiff's complaint recites the proper conclusory verbiage but suffers from a paucity of facts. It does not identify the owner(s) of rights to any bowl game except the Citrus Bowl, nor does it contain a shred of data concerning NBC's market position relative to other television broadcasters, including the competing major networks. Absent any facts even hinting at an actual, imminent or intended concentration of market power in NBC alone, plaintiff's allegations do not state a claim under Section 2. See generally Havoco of America, 626 F.2d at 558 (plaintiff's "naked statement" that defendants conspired to establish one supplier as "dominant marketer" of goods, without supporting factual allegations, did not survive 12(b)(6) motion to dismiss).
Finally, the minimal factual allegations of plaintiff's complaint provide no basis for plaintiff's claim under Section 3 of the Clayton Act. Section 3 prohibits certain exclusive dealing or tied sale arrangements which "substantially lessen competition or tend to create a monopoly." 15 U.S.C. § 14. Even if the rights to broadcast the 1984 Citrus Bowl may be considered a "commodity" within the meaning of this provision, plaintiff has failed to allege facts, as distinguished from legal conclusions, indicating any decrease in competition in the market for those rights. The only effect of the NBC/FCSA contract discernible from the complaint is that NBC will cover the Citrus Bowl and Mizlou will not. Any tendency toward monopoly would depend on NBC's ability to drive out not only plaintiff, but all or nearly all other competitors. No facts submitted by plaintiff adumbrate such a threat, and from the face of the complaint a Section 3 injury to competition is not self-evident. See generally Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 488 (antitrust statutes -- including the Clayton Act -- guard against injury to competition generally, not mere injury to competitors).
In sum, the gist of this complaint is that Mizlou -- not the market -- has been wronged. Although we do not decide this today, it is, of course, possible that plaintiff may have a cognizable claim under tort or contract; however, the allegations before this Court simply cannot rise to the level of federal antitrust claims. Liberal use of the language of antitrust will not transform the cause of action -- "when stripped to its essential[s], the complaint does no more than state plaintiff's commercial disappointment", a matter grounded in state law. See Car Carriers, Inc. v. Ford Motor Co., supra, quoting Dunn & Mavis, Inc. v. Nu-Car Driveaway, Inc., 691 F.2d 241, 245 (6th Cir. 1982); see also Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d at 654.
(b). Pendent Claims
In light of the prompt dismissal of plaintiff's federal antitrust claims against NBC, principles of comity and federalism support dismissal of plaintiff's pendent state claims as well. See Financial General Bankshares, Inc. v. Metzger, 680 F.2d at 772. The interests underlying the doctrine of pendent jurisdiction -- "judicial economy, convenience, and fairness to litigants", United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); see also Rosado v. Wyman, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970) -- would not be served by this Court's retention of plaintiff's state law claims, inasmuch as this litigation has not progressed beyond the initial pleading and dispositive motions. See Financial General Bankshares, Inc., supra.
In accordance with the above discussion, it is, by the Court, this 30th day of November, 1984
1. Plaintiff's claims against defendant Florida Citrus Commission are dismissed in accordance with the Eleventh Amendment;
2. Plaintiff's claims against defendants Arthur Watson, Jeffrey Cokin, Florida Citrus Sports Association, Sam Hines, Charles Rohe and Vernon Hinely are dismissed for lack of personal jurisdiction;
3. Plaintiff's claims against defendant National Broadcasting Company under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and Section 3 of the Clayton Act, 15 U.S.C. § 14, are dismissed for failure to state a claim upon which relief can be granted; and
4. Plaintiff's pendent state law claims against defendant National Broadcasting Company are dismissed in accordance with principles of federalism and comity.
This cause stands dismissed.