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Findling v. Realcomp II, Ltd.

United States District Court, E.D. Michigan, Southern Division

March 22, 2018

DAVID FINDLING, Plaintiff,
v.
REALCOMP II, LTD., et al. Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

          HON. BERNARD A. FRIEDMAN, JUDGE

         This matter is before the Court on defendants' motions to dismiss [docket entries 15 and 23]. These motions are fully briefed. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide them without a hearing.

         FACTS

         The following facts are summarized from the complaint and its exhibits: Plaintiff is a lawyer in southeast Michigan. In his practice, he serves as a court-appointed receiver, an assignee for the benefit of creditors, and a bankruptcy trustee. Michigan law requires anyone who regularly sells real estate to have a real estate broker license. But attorneys acting as receivers or trustees are exempt from this requirement. See Mich. Comp. Laws § 339.2503(2).

         Defendant Realcomp is a multiple listing service (MLS) controlled by the eight defendant realtor associations. MLSs compile extensive details on properties for sale within a certain geographic area-in this case, in southeast Michigan. Realcomp also maintains statistics on sold properties. Plaintiff says that Realcomp's MLS is “the most effective marketing tool for residential real estate in” southeast Michigan. Compl. p. 2. Realcomp's MLS is “available only to the members of the Realcomp Owners.” Id. at 3. To become a Realcomp member, an applicant must be a licensed broker in southeast Michigan actively endeavoring to make or accept offers on property.[1] They must also be a member or affiliate of one of the eight controlling realtor associations and pay a membership fee.

         Because plaintiff is not a licensed real estate broker or member of Realcomp or any of its controlling realtor associations, when he wants to list a piece of property in the MLS, he must pay a member broker a listing fee. Plaintiff wants to use the MLS because he feels it is more effective than self-advertising. But he also wants to avoid paying the listing fee or, alternately, the inconvenience of becoming a licensed broker and paying a membership fee. So in July 2016 plaintiff applied to one of the defendant realtor associations, Greater Metropolitan Association Realtors (GMAR). GMAR denied plaintiff's application because he is not a real estate agent, broker, or appraiser and has not obtained a license.[2] Plaintiff insisted that because Michigan law exempts him from its real estate broker licensing requirements, GMAR could not deny him membership because he lacks such a license.

         In April 2017, plaintiff filed the instant complaint, asserting four counts: Counts I and IV assert that defendants are illegally maintaining a monopoly in the southeastern Michigan market for the listing and sale of real estate; and Counts II and III assert that defendants are illegally tying membership in the defendant realtor associations to access to the MLS.

         STANDARD

         Fed. R. Civ. P. 12(b)(6) states that the Court may dismiss a complaint if it fails “to state a claim upon which relief can be granted.” For a complaint to survive a Rule 12(b)(6) motion, it “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         DISCUSSION

         I. Substantive Law

         The Sherman Act, 15 U.S.C § 1, prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” Under § 2, persons shall not “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” II. Analysis a. Antitrust Standing “[A]ntitrust standing is a threshold, pleading-stage inquiry and when a complaint by its terms fails to establish this requirement we must dismiss it as a matter of law.” NicSand, Inc. v. 3M Co., 507 F.3d 442, 450 (6th Cir. 2007). The Court must consider five factors when deciding whether a plaintiff has antitrust standing:

(1) the causal connection between the antitrust violation and the harm to the plaintiff and the intent by the defendant to cause that harm, with neither factor alone conferring standing; (2) whether the plaintiff's alleged injury is of the type for which the antitrust laws were intended to provide redress; (3) the directness of the injury, which addresses the concerns that liberal application of standing principles might produce speculative claims; (4) the existence of more direct victims ...

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