In re Am. Express Anti-Steering Rules Antitrust Litig.

343 F. Supp. 3d 94
CourtDistrict Court, E.D. New York
DecidedSeptember 26, 2018
Docket11-MD-2221 (NGG) (RER)
StatusPublished
Cited by13 cases

This text of 343 F. Supp. 3d 94 (In re Am. Express Anti-Steering Rules Antitrust Litig.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Am. Express Anti-Steering Rules Antitrust Litig., 343 F. Supp. 3d 94 (E.D.N.Y. 2018).

Opinion

NICHOLAS G. GARAUFIS, United States District Judge

The Merchant Plaintiffs1 in this action move the court to compel Defendants American Express Company and American Express Travel Related Services Company, Inc. (collectively, "Amex") to answer the amended complaint, notwithstanding the pendency of the briefing schedule on Amex's already-served motion to dismiss or, in the alternative, for summary judgment. (Sept. 7, 2018, MPs Letter Mot to Compel ("Mot. to Compel") (Dkt. 828 at ECF p.1); see July 10, 2018, Order (Dkt. 811).) For the following reasons, the motion to compel is GRANTED and the court *97DENIES WITHOUT PREJUDICE Amex's anticipated motion to dismiss.

I. BACKGROUND

A. Procedural History

On July 9, 2018, following the Supreme Court's decision in Ohio v. American Express Co., --- U.S. ----, 138 S.Ct. 2274, 201 L.Ed.2d 678 (2018), the parties jointly proposed a schedule for the Merchant Plaintiffs to amend their complaint, for Amex to move for summary judgment on the amended complaint, and for the completion of additional discovery. (See July 9, 2018, Letter (Dkt. 810).) The court granted the parties' various requests, with some modifications, the following day. (See July 10, 2018, Order.) Per the schedule, the Merchant Plaintiffs filed their amended complaint on July 27, 2018. (Am. Compl. (Dkt. 814).) The amended complaint states three causes of action: monopolization in violation of § 2 of the Sherman Act; attempt to monopolize in violation of § 2 of the Sherman Act; and unreasonable restraint of competition in violation of § 1 of the Sherman Act. (Id. ¶¶ 68-85; see Amex Mem. in Supp. of Mot. to Dismiss (Dkt. 828 at ECF p.6) at 2.)2

Under the original briefing schedule set by the court, Amex was to serve its motions for summary judgment-one as to the allegations of one-sided and Amex-only markets, and one "additional" motion as to the allegation of a two-sided market that includes all general purpose credit and charge cards ("GPCC")-on the Merchant Plaintiffs by no later than August 17, 2018. (See July 10, 2018, Order.) On August 6, 2018, Amex requested that it "be given leave to file a summary judgment motion directed to the Merchant Plaintiffs' allegations regarding competitive harm in a two-sided market after the new discovery is complete." (Aug. 6, 2018, Letter (Dkt. 815) at 2.) The court granted Amex's request and set the briefing schedule on the motion for summary judgment as to the Merchant Plaintiffs' claims on the two-sided, all-GPCC market to take place following the completion of additional fact discovery. (See Aug. 6, 2018, Min. Entry; Aug. 17, 2018, Order.)

The briefing schedule for Amex's original motion for summary judgment, which is as to the Merchant Plaintiffs' other alleged relevant markets, remains in place. Accordingly, on August 17, 2018, Amex served on the Merchant Plaintiffs a motion to dismiss or, in the alternative, for summary judgment ("Amex's Motion"). (See Amex Mem. in Supp. of Mot. to Dismiss.) Amex did not answer the amended complaint. Ten days later, the Merchant Plaintiffs wrote to Amex to express their view that, because Amex's Motion "does not seek dismissal of any cause of action," service of the motion did not toll Amex's responsibility to answer the complaint. (Aug. 27, 2018, Letter from MPs to Amex (Dkt. 828 at ECF p.64).) Following an exchange of letters, the Merchant Plaintiffs offered Amex a compromise by which Amex would "answer just a handful of paragraphs" and "submit any defenses or affirmative defenses and also indicate whether it will seek a trial by jury." (Sept. 4, 2018, Letter from MPs to Amex (Dkt. 828 at ECF p.74).) Amex refused (Sept 5, 2018, Letter from Amex to MPs (Dkt. 828 at ECF p.76) ) and this motion followed.

B. The Motion to Compel

As stated above, the Merchant Plaintiffs seek an order from the court compelling *98Amex to file its answer and defenses to the amended complaint within seven days, or, in the alternative, to answer certain paragraphs of the amended complaint and provide a statement of defenses and affirmative defenses (the "Motion to Compel"). (Mot. to Compel at 4.) The Merchant Plaintiffs submit that Amex's Motion attacks certain allegations within each of the three claims brought by the Merchant Plaintiffs, but does not seek dismissal of any claim in its entirety. (Id. at 2.) Accordingly, the Merchant Plaintiffs argue, because they would still be able to "pursue each of their Counts or causes of action based on the unchallenged allegation of a two-sided credit card relevant market," Amex's Motion is not a proper motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and thus does not suspend Amex's obligation to answer the amended complaint. (Id. at 2, 4.) Amex argues that Amex's Motion is a proper Rule 12(b)(6) motion to dismiss in that it seeks "dismissal of all claims based on three of the four alleged market definitions." (Amex Opp'n to Mot. to Compel ("Amex Opp'n") (Dkt. 830) at 2-3.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(a)(4) provides that service of a Rule 12 motion suspends the movant's time to file a responsive pleading until fourteen days after the court issues a decision on the motion. While Rule 12 does not explicitly contemplate the filing of a partial motion to dismiss-i.e., "a motion to dismiss only certain claims," Lombardo v. Dr. Seuss Enters., L.P., No. 16-CV-9974 (AKH), 2017 WL 1378413, at *3 (S.D.N.Y. Apr. 7, 2017) - it is the majority rule among courts in the Second Circuit that "the filing of any motion under Rule 12 postpones a defendant's time to answer," Dekom v. New York, No. 12-CV-1318 (JS), 2013 WL 3095010, at *5 (E.D.N.Y. June 18, 2013) ; accord Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 366 (E.D.N.Y. 2009). See Finnegan v. Univ. of Rochester Med. Ctr., 180 F.R.D. 247, 250 (W.D.N.Y. 1998) (collecting cases). "If the opposite rule controlled and partial motions to dismiss did not suspend a party's obligation to reply to additional claims, the result would be 'a procedural thicket' of piecemeal answers that would poorly serve judicial economy." Gortat, 257 F.R.D. at 366 (quoting Ricciuti v. N.Y.C. Transit Auth., No.

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343 F. Supp. 3d 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-am-express-anti-steering-rules-antitrust-litig-nyed-2018.