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