# Tundra, Inc. v. Faire Wholesale, Inc. > District Court, N.D. California · February 13, 2024 URL: https://www.frixlaw.com/law-library/cases/10078055 ## Case - **Court:** District Court, N.D. California - **Decided:** February 13, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10078055 ## How later opinions describe it (automated extraction) - describing that an antitrust complaint “survives a Rule 12(b)(6) motion unless it 13 is apparent from the face of the complaint that the alleged market suffers a fatal legal defect.” ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TUNDRA, INC., Case No. 23-cv-02513-AMO 8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION TO DISMISS WITH LEAVE TO AMEND 10 FAIRE WHOLESALE, INC., Re: Dkt. No. 27 Defendant. 11 12 13 Defendant Faire Wholesale, Inc.’s (“Faire”) Motion to Dismiss the Complaint was heard 14 before this Court on December 7, 2023. This Order following the hearing assumes familiarity 15 with the facts of the case, the parties’ arguments, and the relevant legal standard on a motion to 16 dismiss. 17 “A threshold step in any antitrust case is to accurately define the relevant market, which 18 refers to ‘the area of effective competition.’” FTC v. Qualcomm Inc., 969 F.3d 974, 992 (9th Cir. 19 2020) (quoting Ohio v. Am. Express Co. (“Amex”), 138 S. Ct. 2274, 2285, (2018)). “While 20 plaintiffs need not plead a relevant market with specificity, ‘[t]here are . . . some legal principles 21 that govern the definition of an antitrust “relevant market,” and a complaint may be dismissed 22 under Rule 12(b)(6) if the complaint’s “relevant market” definition is facially unsustainable.’” 23 Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1120 (9th Cir. 2018) (quoting Newcal Indus., Inc. v. Ikon 24 Office Sol., 513 F.3d 1038, 1044-45 (9th Cir. 2008)). After fulsome discussion with the parties at 25 the hearing, the Court remains unconvinced that Tundra sufficiently defines the relevant market to 26 support its antitrust claims. 27 Tundra proposes a market definition of “online wholesale marketplaces that connect local 1 fatal defect for such a market is that Tundra fails to define terms like “local,” “new,” or 2 “emerging,” adjectives that facially pare down the relevant market to attribute a greater share to 3 Faire. This proposed market definition appears “not natural,” “artificial,” and “contorted to meet 4 [Tundra’s] litigation needs.” Hicks, 897 F.3d at 1121. Tundra argues that its use of these terms to 5 define the market alleged in the Complaint is cured by the fact that Faire uses the same terms in its 6 public statements. Opp at 19. However, these public statements by Faire do not cure Tundra’s 7 use of these terms to artificially contour the market. Ultimately, these vague terms are so generic 8 as to render implausible Tundra’s several antitrust claims that rely on the relevant market 9 definition, and dismissal is appropriate. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 10 Tundra argued vigorously at the hearing that the Court may not dismiss the Complaint 11 unless there is a fatal defect in the market definition. The argument is well taken. See Newcal, 12 513 F.3d at 1045 (describing that an antitrust complaint “survives a Rule 12(b)(6) motion unless it 13 is apparent from the face of the complaint that the alleged market suffers a fatal legal defect.”). 14 However, Tundra seemingly acknowledges the fatal defect in its definition, presenting an 15 alternative definition throughout the proceedings to minimize the vagueness detected by the Court. 16 Tundra argues, for example, that the relevant market definition is crystal clear, describing it as the 17 “market for online wholesale marketplaces” in its Opposition brief (see ECF 33 at 8), and 18 describing it as the “market for online wholesale platforms” during the hearing. If Tundra intends 19 to proceed with such an alternative market definition, then amendment of that portion of the 20 pleading should prove straightforward. The Court, finding that Tundra’s antitrust claim fails at the 21 antitrust threshold of market definition, does not reach the parties’ remaining arguments regarding 22 Faire’s allegedly anticompetitive contracts and conduct. 23 The Court DISMISSES Tundra’s first cause of action under the Sherman Act for failure to 24 state a claim, with leave to amend. Having dismissed the cause of action over which it has 25 original jurisdiction, the Court declines to exercise supplemental jurisdiction over the remaining 26 state law claims and additionally DISMISSES the second and third causes of action. See Carlsbad 27 Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). Tundra’s Motion for Leave to Submit 1 within 21 days from the date of this order; however, the Court welcomes any stipulation to extend 2 || this deadline to facilitate settlement discussions. No additional parties or claims may be added in 3 an amended complaint without leave of Court or stipulation of Defendant. 4 IT IS SO ORDERED. 5 Dated: February 13, 2024 6 = 7 col. 8 ARACELI MARTINEZ-OLGUIN United States District Judge 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10078055. Public record. Not legal advice.