In re Am. Express Anti-Steering Rules Antitrust Litig.
343 F. Supp. 3d 94
E.D.N.Y2018Background
- After the Supreme Court's decision in Ohio v. American Express Co., the Merchant Plaintiffs filed an amended complaint (three Sherman Act causes of action: monopolization §2, attempted monopolization §2, unreasonable restraint §1) and the court set a schedule for further briefing and discovery.
- American Express served a motion styled as a motion to dismiss or, in the alternative, for summary judgment directed largely at allegations that particular relevant-market formulations (three of four alleged markets) are deficient; Amex did not file an answer to the amended complaint.
- Merchants moved to compel Amex to answer the amended complaint, arguing Amex’s motion does not seek dismissal of any claim in its entirety and thus does not toll the time to answer under Rule 12(a)(4).
- Amex contended that its Rule 12 motion (including partial challenges to market definitions) tolled its obligation to answer because Rule 12 motions suspend the time to respond to all claims.
- The court analyzed whether Amex’s filing was properly a Rule 12 motion to dismiss or effectively a partial motion for summary judgment, and whether a defendant may use Rule 12 to foreclose alternative evidentiary market formulations without answering.
- The court concluded Amex’s motion does not seek dismissal of any separate legal "claim" (it attacks alternative market formulations rather than foreclosing all paths to liability) and thus is not a Rule 12 motion to dismiss; Amex was ordered to file an answer within 14 days, and Amex’s motion to dismiss was denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of Amex’s motion tolled its obligation to answer under Fed. R. Civ. P. 12(a)(4) | Merchants: Amex’s motion does not seek dismissal of any claim in full (it only attacks alternative market formulations), so service does not suspend answer deadline | Amex: Any Rule 12 motion (including partial dismissal of market-based theories) suspends time to answer all claims | Held for Merchants: Amex’s motion is not a Rule 12 dismissal of any claim; answer deadline was not tolled; Amex must answer within 14 days |
| Whether Amex’s submission is a motion to dismiss under Rule 12 or a motion for summary judgment | Merchants: Motion relies on extrinsic factual material and attacks evidentiary formulations; effectively a partial summary judgment motion | Amex: Motion properly seeks dismissal in part under Rule 12(b)(6) (dismissal of claims based on certain market definitions) and may be styled in the alternative with Rule 56 | Held for Merchants: Court treats the filing as a partial summary-judgment-type challenge, not a Rule 12 motion to dismiss, because it does not eliminate any distinct legal "claim" |
| Definition and unit of a "claim" for purposes of Rule 12 tolling | Merchants: Market formulations are alternative evidentiary theories, not separate claims | Amex: Counts or portions of counts may be dismissed in part under Rule 12(b)(6); targeting major portions should toll answer | Held: A "claim" is a set of operative facts giving rise to a cause of action; alternative theories within the same claim are not separate claims; Rule 12 tolling applies only when a motion seeks dismissal of a claim |
| Whether a defendant can avoid answering by moving to dismiss portions of a claim (e.g., particular legal theories) | Merchants: Allowing that would permit defendants to evade answering by attacking any theory | Amex: Efficiency favors allowing partial Rule 12 challenges to suspend answers | Held: Court rejects Amex’s approach as inconsistent with Rule 12 and precedent; permitting such tactic would encourage evasive practice and judicial inefficiency |
Key Cases Cited
- Ohio v. American Express Co., 138 S. Ct. 2274 (2018) (Supreme Court decision addressing two-sided market analysis)
- New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015) (elements for monopolization and attempted monopolization claims)
- United States v. American Express Co., 838 F.3d 179 (2d Cir. 2016) (Section 1 market-power and anticompetitive-effect principles in Amex litigation)
- Schwartz v. Eaton, 264 F.2d 195 (2d Cir. 1959) (definition of a "claim" as operative facts giving rise to a legal right)
- Rieser v. Baltimore & Ohio R.R. Co., 224 F.2d 198 (2d Cir. 1955) (part-only adjudication of a single claim cannot be final)
- Gold Seal Co. v. Weeks, 209 F.2d 802 (D.C. Cir. 1954) (discussion of a "claim for relief" and cause of action)