finding that “[w]hile [plaintiff] alleges in its Amended Complaint that it is [defendant’s] competitor in the retail and wholesale markets, those assertions are belied by both the remaining factual allegations and the law”
How later courts described this case
- finding that “[w]hile [plaintiff] alleges in its Amended Complaint that it is [defendant’s] competitor in the retail and wholesale markets, those assertions are belied by both the remaining factual allegations and the law”
- explaining that "[w]hen reviewing a Rule 12(b)(6) dismissal, [the court] must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them”
- explaining that “[w]hen reviewing a 12(b)(6) dismissal, [the Court] must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them”
- finding conduct did not violate antitrust laws where absent that conduct consumers would still receive the same product and the same amount of competition
Written by the judges who cited it.
The opinion
STAPLETON, Circuit Judge,
concurring:
I believe that the Power Purchase Agreement between SER and PP & L is susceptible of an interpretation that SER’s duty to sell exclusively to PP & L is limited to the first 79.5 megawatts of its output. Therefore, I cannot agree with the majority that the “contract prevents SER from competing with PP & L.” Maj. Op. at 415.
Nonetheless, I concur in the judgment to affirm the district court’s dismissal of SER’s complaint with respect to the retail market on the alternative ground on which the majority relies: by law there was no competition in the retail market during the period complained of in the complaint. Competition in the retail market is currently being phased in, see Pennsylvania Electricity Generation Customer Choice and Competition Act, 66 Pa. Cons.Stat. Ann. § 2801 et seq., but there was no competition prior to the passage and implementation of the recent legislation. Without a competitive market, SER could not have been PP & L’s competitor, and there cannot have been antitrust injury.
*420 I also agree that SER’s complaint with respect to the wholesale market should be dismissed, but I reach this conclusion for a different reason than the majority. SER has not alleged that it has sold, attempted to sell, or even intends to sell any excess capacity (i.e. above what it provides under the Agreement to PP & L) on the wholesale market to others for resale. The proposed amendment to the complaint would only clarify SER’s interpretation of the Power Purchase Agreement and allege that SER is capable of producing more than 79.5 megawatts. Thus, even if the amendment were permitted, the complaint would still be devoid of an allegation that SER has competed, or has even formulated a plan to compete, with PP & L in some designated wholesale market. SER’s conclusory allegation that it is a competitor with PP & L in the wholesale market is entirely without factual context. Even on a motion to dismiss, a district court need not credit unsubstantiated conclusions and bald assertions. See Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993); Wright & Miller, Federal Practice and Procedure: Civil 2d § 1357 at 311 (1989). In the absence of some description of past or anticipated competition between SER and PP & L in a wholesale market, there is no basis for inferring the existence of, or potential for, antitrust injury.
For these reasons, I would affirm the judgment of the district court.
Present SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and McKEE, Circuit Judges, and RESTANI, Judge, Court of International Trade. *