ORDER
DANIEL, District Judge.
THIS MATTER is before the Court on Defendants’ Joint Motion to Dismiss Antitrust Claims, filed July 3, 2003 (“Mot. to Dismiss”). Pursuant to FED. R. CIV. P. 12(b)(6), this motion seeks to dismiss Plaintiffs’ Second Revised Third Amended Complaint [hereinafter “Second Revised Third Amended Complaint” or “SRTAC”] regarding Plaintiffs’ first, second, and third claims, alleging a conspiracy to re
strain trade in violation of 15 U.S.C. § 1, a conspiracy to monopolize in violation of 15 U.S.C. § 2, and attempted monopolization in violation of 15 U.S.C. § 2, respectively.
I.
Factual Background
The essence of Plaintiffs’ allegations as set forth in the Second Revised Third Amended Complaint is that “Defendants engaged in and concealed a conspiracy to restrain and monopolize trade in the gaming industry in Gilpin County, Colorado in violation of federal and state statutory law,” (SRTAC ¶ 33), and “[a]s a result of Defendants’ conduct, Plaintiffs have incurred economic damages and losses.”
{Id.
¶ 34.) More specifically, Plaintiffs originally alleged that Black Hawk’s Las Vegas style casinos are in violation of the Colorado constitutional amendment which provides that the purpose of limited gaming is to promote the historic preservation of the gambling towns.
{Id.
¶¶ 38-50) (citing Colo. Const. Art. XVIII, § 9). As a result, it is alleged that Black Hawk’s casinos unfairly compete with Central City’s casinos, and unfairly and illegally undermine Plaintiffs’ economic interests.
{Id.
¶¶ 145-149.)
Specifically, Plaintiffs allege that their casinos are only accessible via State Highways 119 and 279, which pass through Black Hawk, and that Black Hawk uses its geographic position to control access to Central City.
{Id.
¶¶ 54, 55.) Of interest here, Plaintiffs assert that in an effort to counteract the advantage enjoyed by Black Hawk by way of its oversized casinos
and its control over access to Central City, Central City initiated plans to build a Southern Access Road which would give gamblers direct access to Central City without having to drive through Black Hawk. (SRTAC ¶¶ 58-59.)
Plaintiffs allege that Defendants
entered into a con
spiracy to interfere with the .construction of the Southern Access Road.
(Id.
¶¶ .60-63.) Specifically, it is .alleged that Black Hawk, per the direction, of its officials, purchased certain land, referred to as .the Emeson land, to prevent Central City from acquiring that land to use in building the road.
(Id.
¶¶ 64-68.) Central City filed condemnation proceedings against the Emeson land, and litigation was commenced.
(Id.
¶¶ 69-70.) Central City and Black Hawk then reached a settlement, referred to as the Emeson settlement, wherein they allegedly' agreed to cooperate on the Southern Access Road and Black Hawk’s Water Project.
(Id.
¶ 71.)
Plaintiffs also allege that Black Hawk defeated Central City’s continued attempts to build the Southern Access Road. They allege in that regard that Black Hawk defeated an annexation effort of other land that Central City planned to use to build the Southern Access Road, referred to as the Proland land, by buying certain mining claims located within the area of the proposed annexation (referred to as “the Thomas, mining claims”) and selling
1%
interests, ip -the Thomas mining claims to numerous .people.
(Id.
¶¶.73-89, 95-94.)
Plaintiffs claim Black Hawk did this in order to create more • landowners in an effort to prevent Central City, from acquiring the required signatures of 50% of the landowners in the proposed annex area, once again blocking Central City’s attempt to build a Southern Access Road. (SRTAC ¶ 89.)
Additionally, Plaintiffs allege that a second parcel of land, owned ' by H. Thomas Winn, was also necessary to construct ' the Southern Access Road, and that Winn petitioned Central City to include his land' ih the proposed Proland Annexation. (SRTAC ¶¶ 95, 96.)
Simultaneously, Plaintiffs ' allege,' while Winn was negotiating with Black Hawk officials to open the Isle of Capri Casino in Black Hawk, these same officials indicated that the. grant of a certificate of occupancy would be conditioned upon Winn’s with
drawal of his petition to be included in the Proland Annexation.
(Id.
¶¶ 97-102.) Winn subsequently withdrew his land, and this withdrawal, coupled with the defeat of the annexation proposal by voters allegedly forced Proland to withdraw its annexation proposal and its offer to fund, in part, the construction of the Southern Access Road.
(Id.
¶¶ 102, 103.)
The Second Revised Third Amended Complaint asserts the following claims: (1) violation of 15 U.S.C. § 1 — Conspiracy to Restrain Trade (Against everyone but Black Hawk); (2) violation of 15 U.S.C. § 2 — Conspiracy to Monopolize (against certain Defendants); (3) violation of 15 U.S.C. § 2 — Attempted Monopolization (against certain Defendants); (4) violation of Colo.Rev.Stat. § 6-4-104 -Conspiracy to Restrain Trade (against everyone but Black Hawk); (5) violation of Colo.Rev, Stat. § 6-4-105 -Conspiracy to Monopolize (against certain Defendants); (6) violation of Colo.Rev.Stat. § 6-4-105 — Attempted Monopolization (against certain Defendants); (7) (violation of 18 U.S.C. § 1962(c) — RICO”) (against everyone but Black Hawk); (8) violation of Colo.Rev. Stat. § 18-17-104(3) — COCCA (against everyone but Black Hawk); (9) breach of contract — the Emeson Settlement Agreement (against Black Hawk); (10) breach of contract — the IGA (against Black Hawk); (11) intentional interference with a prospective economic advantage (against everyone but Black Hawk); (12) civil conspiracy (against everyone but Black Hawk); (13) intentional interference with contractual relations (against everyone but Black Hawk); and (14) exemplary damages (against everyone but Black Hawk).
Since the Second Revised Third Amended Complaint was filed, however, Plaintiffs’ eleventh claim for intentional interference with prospective business advantage; twelfth claim for civil conspiracy; and thirteenth claim for intentional interference with contractual relations have been dismissed with prejudice as to all Defendants.
In addition, Plaintiffs withdrew their second claim for conspiracy to monopolize in violation of 15 U.S.C. § 2; then-third claim for attempted monopolization in violation of 15 U.S.C. § 2; their fifth claim for conspiracy to monopolize in violation of Colo. Rev. Stat. § 6^4-105;. and their sixth claim of attempted monopolization in violation of Colo. Rev. Stat. § 6-4-105, as to Defendants Prospector 141, LLC (“Prospector 141”), Black Hawk Development North, LLC (“BHDN”), Tom Kerr (“Kerr”), Haller G. Midcap (“Mid-cap”), and David D. Spellman (“Spellman”) only. Plaintiffs have also withdrawn with prejudice — against Spellman, Kerr, Mid-cap, Kathryn Eccker (“Eccker”), James S. Maloney (“Maloney”), and Lynnette Hailey (“Hailey”) only — their fourth claim alleging conspiracy to restrain trade in violation of Colo. Rev. Stat. § 6-4-104; their fifth claim alleging conspiracy to monopolize in violation of Colo. Rev. Stat. § 6^4-105; their sixth claim alleging attempted monopolization in violation of Colo. Rev. Stat. § 6-4-105; and their eighth claim alleging a violation of the Colorado Organized Crime Control Act (“COCCA”), Colo. Rev. Stat. § 18-17-104(3)
By Order dated October 31, 2002, I .denied Black Hawk’s Motion to Dismiss (Improper Venue) filed December 20, 2001. This motion sought to dismiss only the ninth and tenth claims for lack of subject matter jurisdiction and improper venue. I also granted the Motion of Defendants Spellman, Midcap and Kerr for Partial Summary Judgment (No Individual Liability for Acts of Colorado Limited Liability Company), filed December 21, 2001, as to the remaining claims against these Defendants (the first claim, federal conspiracy to restrain trade, and the seventh claim, RICO.)
By Order dated March 26, 2003, I dismissed with prejudice the eleventh, twelfth, and thirteenth claims for relief relating to the intentional interference with prospective economic advantage, civil conspiracy, and the intentional interference / inducing breach of contract claims, respectively. I additionally dismissed with prejudice the seventh and eighth claims for relief involving RICO and COCCA. Moreover, Plaintiffs withdrew with prejudice their claims against Defendants David Spellman, Haller G. Midcap, and Tom Kerr with regard to the second, third, fourth, fifth, sixth and fourteenth claims as well as Plaintiffs’ claims against Defendants Kathryn Eccker, James Maloney, and Lynett Hailey with regard to the fourth, fifth, sixth and fourteenth claims.
By Order dated April 23, 2003,1 granted plaintiff Central City’s stipulated motion to dismiss all claims .that it had brought against all of the Defendants in this action, thereby dismissing Central City as a party to this action.
By Order dated June 13, 2003,1 granted Plaintiffs’ motion for leave to amend the Second Amended Complaint and simultaneously denied without prejudice Defendants’ Joint Motion to Dismiss Antitrust Claims. I also denied Plaintiffs’ Motion for Partial Amendment per FED. R. CIV. P. 59(e) via a Clarification of Order dated March 26, 2003.
Subsequent to the filing of the Plaintiffs’ Second Revised Third Amended Complaint, Plaintiffs also withdrew their first claim alleging a conspiracy to restrain trade in violation of 15 U.S.C. § 1 as it related to the construction of allegedly im-permissibly large casinos and to the construction and maintenance of the Highways that access Black Hawk and Central City. Additionally, Plaintiffs withdrew their fourteenth claim for exemplary damages.
Thus, the remaining federal claims before this Court include (a) the first claim of conspiracy to restrain trade in violation of 15 U.S.C. § 1 against all Defendants except Black Hawk, David Spellman, Haller G. Midcap, and Tom Kerr;
(b) the second claim of a conspiracy to monopolize in violation of 15 U.S.C. § 2 against Defendants Black Hawk Casino, Canyon Casino, Mardi Gras Casino, Black Hawk Gaming, Jackpot Springs, and Woodmont; and (c) Plaintiffs’ third claim of attempted monopolization in violation of 15 U.S.C. § 2 against Defendants Black Hawk Casino, Canyon Casino, Mardi Gras Casino, Black
Hawk Gaming, Jackpot Springs, and Woodmont.
II.
Analysis: Motion to Dismiss for Failure to State a Claim (Fed. R.Civ.P. 12(b)(6))
The essence of the remaining conduct challenged by Plaintiffs centers on the proposed construction of the Southern Access Road into Central City. The existing roads require potential customers of Central City casinos to travel first through Black Hawk, located approximately one mile east of Central City, which itself offers numerous opportunities to gamble.
Due to continual construction and roadblocks, not at issue here, as well as a fear that potential customers would stop in the City of Black Hawk to gamble and not continue on to Central City, Central City decided to build a second access road into Central City from the south. In order to accomplish this, Central City sought to annex land in order to form a contiguous tract of land to build the Southern Access Road. In response, Black Hawk sought to oppose annexation of the land by purchasing several tracts of land and selling the mineral rights to several of the Defendants with a pledge to preserve open space, in an apparent effort to increase the number of voters eligible to consider the annexation question and to thereby defeat the proposed annexation by Central City. It is important to note that Black Hawk’s actions are not directly challenged in this action.
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court “ ‘must accept all the well-pleaded allegations as true and must construe them in the light most favorable to the plaintiff.’ ”
David v. City and County of Denver,
101 F.3d 1344, 1352 (10th Cir.1996),
cert. denied,
522 U.S. 858, 118 S.Ct. 157, 139 L.Ed.2d 102 (1997). “A complaint may be dismissed pursuant to [Rule] 12(b)(6) only ‘if the plaintiff can prove no set of facts to support a claim for relief.’ ”
Id.
(quoting
Jojola v. Chavez,
55 F.3d 488, 490 (10th Cir.1995)).
A. Subject-Matter Jurisdiction
The initial inquiry in this ease is whether this Court has the requisite jurisdiction to entertain Plaintiffs’ claims of a violation of the Sherman Act. In order “to satisfy interstate commerce jurisdiction under the Sherman Act the challenged activity must occur in the flow of interstate commerce, or, though occurring on a purely local level, substantially affect interstate commerce.”
Crane v. Intermountain Health Care, Inc.,
637 F.2d 715, 720 (10th Cir.1980) (en banc) (emphasis in original). As the allegations only involve activity on the local level, the relevant inquiry is the “effect on commerce” test. In addressing this requirement, the Supreme Court has stated that the relevant question is whether “the defendants’ activity ..., if it is local in nature, ... has an effect on some other appreciable activity demonstrably in interstate commerce.”
McLain v. Real Estate Bd., Inc.,
444 U.S. 232, 242, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980). Moreover, “[t]o establish jurisdiction a plaintiff
must allege the critical relationship in the pleadings.”
Id.
The Tenth Circuit has interpreted
McLain
to require that the plaintiff show “the requisite nexus ‘between the defendant’s challenged activities and interstate commerce.’ ”
Anesthesia Advantage, Inc. v. Metz Group,
912 F.2d 397, 401 (1990). Accordingly, in order to establish jurisdiction, Plaintiffs must “(1) identify a ‘relevant’ aspect of interstate commerce, and (2) specify its relationship to the defendant’s activities alleged to be ‘infected’ with illegality.”
Crane,
637 F.2d at 723. Additionally, Plaintiffs must show that Defendants’ conduct has a “not insubstantial effect on the interstate commerce involved.”
McLain,
444 U.S. at 246, 100 S.Ct. 502 (citing
Hospital Bldg. Co. v. Rex Hosp. Trs.,
425 U.S. 738, 745, 96 S.Ct. 1848, 1852, 48 L.Ed.2d 338 (1976)). However, “an elaborate analysis of interstate impact is not necessary at the jurisdictional stage, only an allegation showing a logical connection as a matter of practical economics between the unlawful conduct and interstate commerce.”
Crane,
637 F.2d at 723.
As an initial matter, Plaintiffs have adequately identified a “relevant” aspect of interstate commerce. Similar to the plaintiffs in
Anesthesia Advantage,
912 F.2d at 402-03, Plaintiffs have alleged that their businesses serve a substantial number of out-of-state visitors and that they derive a not insubstantial portion of their revenue from out-of-state tourists.
(Id.
¶ 148.) Additionally, Plaintiffs also allege that they purchase equipment, such as slot machines, from out-of-state providers.
(Id.
¶ 144.) These allegations sufficiently identify a “relevant” aspect of interstate commerce.
Plaintiffs likewise meet the second requirement by showing that Defendants’ challenged conduct has a not insubstantial effect on the identified relevant aspect of interstate commerce. Here, this Court is mindful that “the test for the adequacy of the requisite nexus between interstate commerce and the defendant’s challenged activities is a ‘pragmatic’ one which turns on the particular facts of the particular case.”
Anesthesia Advantage,
912 F.2d at 402. Moreover, Plaintiffs “need not establish that the flow of interstate commerce is actually
diminished;
it is sufficient to show that such commerce is affected in more than a
de minimis
way.”
Id.
at 401 (citing
McLain,
444 U.S. at 243, 100 S.Ct. at 509-10) (emphasis in original). Here, Plaintiffs allege that Defendants collectively conspired to block the construction of the Southern Access Road and that, since most travelers labor under the misapprehension that Black Hawk and Central City are the same town, the result is that fewer out-of-state tourists continue on to Central City. They contend that not only would the construction of the Southern Access Road allow out-of-state tourists to drive directly to Central City without first passing through Black Hawk, it would also provide a more direct route from a major transportation route, Interstate 70. (SRTAC ¶¶ 58, 59.) This, according to Plaintiffs, would allow more convenient access to Central City for both out-of-state tourists and suppliers of casino equipment who deliver their products. Although Plaintiffs do not offer an elaborate economic analysis of the impact of the defeated Southern Access Road, nor provide evidence that interstate commerce is actually diminished, they have shown that interstate commerce “is affected in more than a
de minimis
way.” Accordingly, Plaintiffs have alleged sufficient facts to support jurisdiction in this case.
B. Anticompetitive Conduct,
Noeir-Pennington
Immunity
The fact that Plaintiffs have alleged sufficient facts to establish jurisdiction does
not establish that they have alleged sufficient facts to demonstrate a violation of the antitrust laws. Showing an effect on interstate commerce is a far cry from demonstrating that Defendants’ conduct constituted an impermissible restraint of competition under Section 1 of the Sherman Act, or a conspiracy to monopolize or attempted monopolization under Section 2 of the Sherman Act.
In this case, the challenged conduct consisted of several Defendants participating in various ways in Black Hawk’s efforts to block Central City’s annexation of the land necessary to construct the Southern Access Road. For the purpose of this analysis, it is helpful to divide Defendants into three classes: (1) the private Defendant casinos and other companies who lobbied Black Hawk officials to sell the mineral interests to private purchasers (“group one”); (2) the Black Hawk officials involved, namely Defendants Eccker, Malo-ney, and Hailey (“group two”); and (3) Defendant private purchasers, namely Defendants Susan Barnes, Medill Barnes, Lary Brown, Phyllis Brown, and Herbert Bowles (“group three”). Of critical importance in this case is the fact that the actions of the Black Hawk itself are unchallenged.
As an initial matter, Plaintiffs’ allegations of impermissible conduct on the part of the private Defendants (group one and three), are little more than nebulous claims of a conspiracy between the agents of Black Hawk and these Defendants. However, Plaintiffs provide no details in their allegations as to how this conspiracy operated. Construing the allegations in the Second Revised Third Amended Complaint in the light most favorable to Plaintiffs, the most that the allegations support is a claim that several of the Defendants may have lobbied Black Hawk and its officers to block the construction of the Southern Access Road in order to gain a competitive advantage over Plaintiffs, and that the remaining Defendants either intentionally or unintentionally participated in that effort.
However, it is precisely this type of conduct that the
Noerr-Pennington
doctrine immunizes. “The
Noerr-Pennington
doctrine is based upon the protections of the First Amendment and exempts from antitrust liability any legitimate use of the political process by private individuals, even if their intent is to eliminate competition.”
Zimomra v. Alamo Rent-A-Car, Inc.,
111 F.3d 1495, 1503 (10th Cir.1997) (citing
United Mine Workers v. Pennington,
381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965)). Immunity under the
Noerr-Pennington
doctrine is not absolute. For example, “bribery, or misuse or corruption of governmental processes are outside the protection of the
NoerrPennington
doctrine.”
Oberndorf v. City and County of Denver,
900 F.2d 1434, 1441 (10th Cir.1990) (citing
Instructional Sys. Dev. Corp. v. Aetna Cas. & Sur. Co.,
817 F.2d 639, 650 (10th Cir.1987)).
See also id.
at 1440
(“Noerr-Pennington
does not provide immunity where legitimate lobbying efforts are accompanied by illegal or fraudulent actions.”). However, Plaintiffs have not alleged any facts supporting a charge of bribery or corruption on the part of any of the Defendants. All that the Plaintiffs have alleged is a “conspiracy” between the private Defendants (groups one and three) and agents of Black Hawk (group two). Yet,
“Noerr-Pennington
cannot be circumvented by merely alleging
that a government official was involved in the alleged conspiracy.”
Oberndorf,
900 F.2d at 1440. So long as the private Defendants’ actions were legal, the fact that Plaintiffs merely allege that Black Hawk may have exceeded its municipal authority does not render the private Defendants’ conduct impermissible under the antitrust laws.
The closest question of anticompetitive conduct involves the Mayor of Black Hawk, Kathryn Eccker; the City Attornéy for Black Hawk, James Maloney; and the City Manager for Black Hawk, Lynette Hailey, all of whom acted as agents of Black Hawk in its alleged attempt to block the Proland annexation. Plaintiffs adequately allege facts in the form of transcripts of Black Hawk City Council meeting, attached to the Second Revised Third Amended Complaint as Exhibits N and 0, that are sufficient to support an inference that these Defendants were, in fact, involved with' Black Hawk’s efforts to block the Proland annexation. Yet Plaintiffs fail to present specific anticompetitive intent or legal wrongdoing on the part the City of Black Hawk or, by extension, its-agents. The only intent supportable from- the Second Revised Third Amended Complaint and attached exhibits on the part of Black Hawk and its officials is an intent to block the Proland Annexation, not an intent to restrict competition. Moreover, Plaintiffs can point to no law that Black Hawk violated by assigning the 1% interests in the Thomas mining claims or by repurchasing-the assignments after the Proland annexation was blocked. Plaintiffs do not allege that Defendants’ conduct was in violation of the Colorado Municipal Annexation Act, Colo. Rev. Stat. § 31-12-101,
et seq.
or the relevant Article III, § 30 of the Colorado Constitution. As Plaintiffs themselves point out, a Grand Jury investigated the activities in question, but did not issue an indictment. (SRTAC ¶ 130, Ex. E.)
With regard to the alleged influence on H. Thomas Winn by officials of Black Hawk
(Id.
¶¶ 95-103),
Plaintiffs again fail to plead sufficient facts to support an antitrust claim. Construed in the light most favorable to Plaintiffs, Exhibits J and K support an inference that Winn was pressured into withdrawing from the Proland Annexation project in order to obtain a Certificate of Occupancy necessary to operate a casino in Black Hawk.
However, thus construed, the exhibits do not contain sufficient facts to support an inference that it was these particular Defendants (Eccker, Maloney, and Hailey), as opposed to the City of Black Hawk itself or another official of Black Hawk, who exerted the pressure upon Winn. Indeed, Plaintiffs fail to allege that these Defendants had any knowledge of or control over Winn’s pending Certificate of Occupancy. Moreover, even if Defendants could be shown to have had such knowledge,, there is no indication in either the Second Revised Third Amended Complaint or Affidavits why
such an agreement between the parties is impermissible.
Given the lack of concrete allegations of wrongdoing on the part of any of the Defendants, Plaintiffs have failed to show the requisite anticompetitive conduct necessary to bring a claim under the Sherman Act.
C. Standing
Even if I were to determine that Plaintiffs’ Second Revised Third Amended Complaint contains specific allegations of impermissible anticompetitive conduct involving Defendants, Plaintiffs fail to establish that Defendants’ conduct caused them an antitrust injury. Thus, Plaintiffs lack standing.
In order to maintain standing to bring a private antitrust suit, Plaintiffs must show “(1) an antitrust injury; and (2) a direct causal connection between that injury and a defendant’s violation of the antitrust laws.”
Ashley Creek Phosphate Co. v. Chevron USA Inc.,
315 F.3d 1245, 1254 (10th Cir.2003) (quoting
Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc.,
131 F.3d 874, 882 (10th Cir.1997)). Here Plaintiffs fail on both requirements.
As the Tenth Circuit has made clear, “[t]o meet the first prong[, plaintiffs] must allege a business or property injury, an antitrust injury, as defined by the Sherman Act. An antitrust injury is defined as an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.”
City of Chanute v. Williams Natural Gas Co.,
955 F.2d 641, 652 (10th Cir.1992)
overruled on other grounds, Systemcare, Inc. v. Wang Labs. Corp.,
117 F.3d 1137 (10th Cir.1997). It is important to remember that “[t]he antitrust laws ... were enacted for ‘the protection of competition not competitors.’ ”
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477,
488,
97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977) (quoting
Brown Shoe Co. v. United States,
370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962)). Thus, an antitrust injury must be attributable to “a competition-reducing aspect or effect of the defendant’s behavior.”
Atlantic Richfield Co. v. USA Petroleum Co.,
495 U.S. 328, 343, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990). Therefore, when individual companies are driven out of business simply because of legitimate competitive forces, there is no antitrust violation. Rather, antitrust laws are concerned with the corruption of the competitive process.
Here, Plaintiffs have failed to allege any injury to the competitive process or claim any injury to consumers. Their Second Revised Third Amended Complaint simply alleges injuries to themselves. (SRTAC ¶¶ 133-141, 145.) Plaintiffs note that Black Hawk’s adjusted gross proceeds from gaming have risen from $217 million in 1996 to $510 million in 2002, while Central City’s adjusted gross proceeds from gaming have declined from $82 million in 1996 to $56 million in 2002.
(Id.
¶¶ 132, 133.) Moreover, Plaintiffs note that several casinos, including GF Gaming, Annie Oakley, Baby Doe, Sheftel, Proland, and Lorenz, have respectively suffered declining revenues
(Id.
¶¶ 134, 135), have been “negatively impacted”
(Id.
¶ 136), have gone out of business several times
(Id.
¶ 137), have been unable to develop its property
(Id.
¶ 138), or have suffered losses resulting from the closure of a restaurant and casino.
(Id.
¶ 139.) Yet Plaintiffs fail to make any cognizable claim that supports injury to the competitive process as opposed to individual competitors.
The closest Plaintiffs come to alleging an injury to
competition
is a vague statement that “Defendants’ anticompetitive behavior has ... negatively affected both Colorado
and out-of-state customers frequenting the limited gaming market in Gilpin County.”
(Id.
¶ 149.) This is not enough. Even bolstered by Plaintiffs’ allegations that the Southern Access Road would have provided easier access to Central City, there is no indication, absent additional allegations of misconduct not asserted here, that consumers are worse off for having to drive through Black Hawk as opposed to driving directly to Central City. Given the distance that potential customers must drive to reach the Gilpin County casinos in the first place, the additional mile required to reach Central City by using the current road system is not significant enough to constitute an injury to consumers.
Plaintiffs make their allegation only slightly more concrete by alleging in general terms that “Defendants’ conduct has also negatively impacted consumer choice in the limited gaming market.”
(Id.
¶ 148.) However, allowing Plaintiffs to establish standing by merely alleging that consumers are harmed by Defendants’ conduct, without requiring that they assert more specific facts, would make the standing inquiry meaningless. Moreover, although phrased in terms of competitive injury, Plaintiffs’ statement that consumer choice is limited amounts to little more than a claim that specific companies have been driven out of business and that, therefore, consumers have lost an option when choosing where to gamble. However, this is true in all situations where a particular company is driven out of business, and finding standing without a more rigorous inquiry would give every unsuccessful company antitrust standing under the theory that consumers have been deprived of an option. The standing inquiry was designed to require more.
Even if Plaintiffs’ allegations could be construed to support an inference of injury to the competitive process, as opposed to injury to competitors, there is no indication that the conduct challenged in this.case caused that injury. In order to “establish the second prong of antitrust standing, [plaintiffs] must show the antitrust injury resulted directly from [defendants’] violation of antitrust law.”
City of Chanute,
955 F.2d at 652 (citation omitted). The following factors are considered when determining antitrust standing:
(1) the causal connection between the alleged antitrust violation and the harm;
(2) improper motive or intent of defendants;
(3) whether the claimed injury is one sought to be redressed by antitrust damages;
(4) the directness between the injury and the market restraint resulting from the alleged violation;
(5) the speculative nature of the damages claimed; and
(6) the risk of duplicative recoveries or complex damage apportionment.
City of Chanute,
955 F.2d at 652 n. 14 (citation omitted). It is important to remember that these “enumerated factors are' not '‘black-letter rules,’ but merely ‘give more specificity to the inquiry mandated by the two part test.’ ”
Sports Racing,
131 F.3d at 882 (quoting
Sharp v. United Airlines, Inc.,
967 F.2d 404, 406, 407 n. 2 (10th Cir.1992)).
Applying these factors to the case at hand, it is significant that the immediate cause of the injury to Plaintiffs is not the denial of the annexation necessary for construction of the .Southern Access Road. Rather, as Plaintiffs concede, their alleged injury is caused by the existing road system itself (SRTAC ¶ 54—55), as well as the continual construction and roadblocks on that road
(Id.
¶ 58), neither of which is challenged in the present case. At worst, Defendants’ conduct prevented Plaintiffs
from solving the pre-existing problem that was causing injury to Plaintiffs.
(Id.
¶ 58) (“In order to remedy the unlawful advantage enjoyed by the casinos in Black Hawk, in 1998 Central City initiated discussions and plans to construct ... the ‘Southern Access Road.’ ”)
Second, even construing all of the allegations in Plaintiffs’ favor, the most they support is the conclusion that Black Hawk and the remaining Defendants opposed the annexation of the land necessary to build the Southern Access Road, not necessarily the construction of the Southern Access Road itself. Thus, the Open Space Agreement is alleged only to address annexation and would not obstruct the condemnation of land. (SRTAC ¶ 126.) As Plaintiffs concede, Central City still has the available option of condemning the land necessary to build the Southern Access Road.
Even if the motivation on the part of the private Defendant casinos was aimed at maintaining a competitive advantage, so long as they acted within the bounds of permissible political lobbying, their intent is irrelevant under the
Noerr-Pennington
doctrine.
See Zimomra,
111 F.3d at 1503 (citing
Pennington,
381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626).
Third, given the background and history of the dispute, as well as statements by Black Hawk officials and the terms of the Open Space Agreement, the underlying dispute seems to be more a disagreement between two municipalities regarding city limits and development than a dispute between private casinos vying to gain competitive advantages. Although municipal action can, in certain rare circumstances, give rise to antitrust liability, the antitrust laws were not designed to resolve land-use disputes between municipalities.
Fourth, in addition to the remote causal connection between the violation and the harm, the directness of injury is further limited by the fact that potential customers can still access Central City to gamble. There is no conduct at issue in this case that explains how or why consumers are forced to stop in Black Hawk to gamble as opposed to continuing for a mile to Central City to gamble. Even construing the facts in the light most favorable to the Plaintiffs, consumers still choose of their own volition to gamble in Black Hawk as opposed to Central City.
Fifth, even if obstruction of the construction of the Southern Access Road, rather than restricted access to Central City, were the immediate cause of Plaintiffs’ declining revenues, Plaintiffs have failed to show that their general decline in revenues and the increase in Defendants’ revenues have any link to the obstruction of the Southern Access Road. Standing alone, statistics showing a decline in Plaintiffs’ revenues and an increase in Defendants’ revenues do not indicate a causal relationship between Defendants’ actions and the decrease in Plaintiffs’ revenues.
Finally, given the number of Plaintiffs (some of whom represent more than one interested party), the numerous Defendants (who represent everyone from officials of Black Hawk, to private casinos, to private purchasers of land), and the speculative nature of the damages involved, the risk of duplicative recovery is immense and the damage apportionment overly complex.
In light of the above considerations, Plaintiffs have failed adequately to allege sufficient facts to support an inference that Defendants’ conduct caused the injury to Plaintiffs. Coupled with Plaintiffs’ failure to allege an antitrust injury, Plaintiffs’ allegations construed in the light most favorable to them fail to set forth sufficient facts to satisfy the standing requirements and, therefore, Plaintiffs lack standing to bring the antitrust claims.
III.
Supplemental State Claims
All claims that remain arise under state law. In the absence of jurisdiction to hear Plaintiffs’ antitrust claims, this Court must also dismiss Plaintiffs’ supplemental state law claims. 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction).
See also United States v. Botefuhr,
309 F.3d 1263, 1273 (10th Cir.2002) (“[WJhile we have suggested that it is appropriate ... for a district court to retain supplemented state claims after dismissing all federal questions when the parties have already expended a great deal of time and energy on the state law claims, ... we have held that, absent such a showing, a district court should normally dismiss supplemental state law claims after all federal claims have been dismissed, particularly when the federal claims are dismissed before trial.”) I decline to exercise supplemental jurisdiction over Plaintiffs’ state law claims, and dismiss the state law claims without prejudice.
IV.
Conclusion
Based on the foregoing, it is
ORDERED Defendants’ Joint Motion to Dismiss Antitrust Claims, filed July 3, 2003, is GRANTED. It is
FURTHER ORDERED that, pursuant to FED. R. CIV. P. 12(b)(6), Plaintiffs’
federal claims, which arise under 15 U.S.C. § § 1 and 2, are DISMISSED WITH PREJUDICE. As to the remaining state law claims, it is
FURTHER ORDERED that Plaintiffs’ claims arising under COLO. REV. STAT. §§ 6-4-104 and 6 — 4—105, over which the Court elected not to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), are DISMISSED WITHOUT PREJUDICE. It is
FURTHER ORDERED that Defendant Woodmont Development Company’s Motion to Dismiss the Second Revised Third Amended Complaint filed June 26, 2003 is DENIED AS MOOT. It is
FURTHER ORDERED that Defendant Susan G. Barnes’ Separate Motion to Dismiss Second Revised Third Amended Complaint filed July 3, 2003, is DENIED AS MOOT.