Antitrust – Attempted Monopolization Claim – Insufficient Allegations – Relevant Market – Dangerous Probability of Success – Home Builders

Downeast Builders & Realty, Inc. v. Essex Homes Southeast, Inc. (Lawyers Weekly No. 002-123-12, 8 pp.) (Cameron McGowan Currie, J.) 3:11-cv-02653; D.S.C.

Holding: In its attempted monopolization counterclaim, defendant fails to allege what “identified subclass or submarket of new houses” or what “particularized price point” plaintiff is attempting to monopolize. Furthermore, defendant fails to allege the geographic market it claims plaintiff is attempting to monopolize. Even reading defendant’s counterclaim in conjunction with plaintiff’s complaint, the geographic market could be interpreted as the southeastern U.S., the Carolinas, or some portion of the Carolinas. Therefore, defendant has failed to plead a relevant market.

The court grants plaintiff’s motion to dismiss defendant’s attempted monopolization counterclaim.

Without alleging a relevant market, defendant cannot allege plaintiff’s share of that market. Defendant simply alleges that plaintiff has “economic market power in the relevant market.” Defendant has thus failed to allege that plaintiff has a dangerous probability of success in an attempt at monopolization.