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FOGEL v. METROPOLITAN LIFE INS. CO.

December 31, 1994

MANDEL FOGEL and ROCKLYN SURGICAL SUPPLY CO., INC., Plaintiffs, against METROPOLITAN LIFE INSURANCE CO. and MARYANN FEENAN, Defendants.


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 In this antitrust action, the defendant Metropolitan Life Insurance Co. ("MetLife") moves for an order pursuant to Fed. R. Civ. P. 12(b)(6) dismissing the complaint. The plaintiff pro se, Mandel Fogel, and Rockland Surgical Supply Co., Inc. oppose the motion. The Court notes that should the complaint survive this motion to dismiss, the corporate defendant must retain counsel. See Eagle Assoc. v. Bank of Montreal, 926 F.2d 1305 (2d Cir. 1991); Dial-A-Mattress Franchise Corp. v. Page, 880 F.2d 675 (2d Cir. 1989).

 This memorandum decision follows an oral decision, which was rendered from the bench at oral argument on December 16, 1994.

 BACKGROUND

 The plaintiffs Mandel Fogel and Rocklyn Surgical Supply Co., Inc. ("Rocklyn") are purveyors of medical equipment. They apparently sought a business relationship with MetLife, aspiring to become listed as a "preferred provider" by MetLife. That quest was unsuccessful, and MetLife does not list Rocklyn as a "preferred provider." Neither party elaborates on the meaning of "preferred provider."

 The plaintiffs commenced an action claiming that the defendants violated of 15 U.S.C. § 1 et seq., otherwise known as The Sherman Antitrust Act, in or about August, 1994. The complaint names as defendants MetLife and an individual, Maryann Feenan. The complaint does not identify Ms. Feenan or specify impermissible conduct on her part. The defendants state that Ms. Feenan is a MetLife employee. Although the defendants contend that Ms. Feenan has not been served with a summons and complaint in the action, an affidavit of service was filed with the Court.

 The plaintiffs complain that the defendants refusal to grant their request to become a "preferred provider" was "arbitrary" and "capricious" and constitutes a violation of federal antitrust laws.

 DISCUSSION

 Rule 12(b)(6) standard

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993), cert. denied, U.S. , 115 S. Ct. 86 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken". Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).

 It is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the court must accept the allegations of the complaint as true, see LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989).

 Additionally, because the individual Mandel Fogel is proceeding without an attorney, the Court must give wide latitude to the papers filed by the pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (pro se papers are to be held "to less stringent standards than formal pleadings drafted by lawyers"). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of his lack of legal training. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983), cert. dismissed, 468 U.S. 1226 (1984). But the Court is also aware that "'self representation does not exempt a party from compliance with relevant rules of procedural and substantive law.'" Id. (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)). It is within this framework that the Court addresses the present motion to dismiss.

 At the outset, the Court notes that the complaint alleges no facts other than that the business arrangement the plaintiffs sought to undertake with MetLife was rejected by MetLife. Furthermore, the complaint does not identify what section of the Sherman Antitrust Act they are invoking, although the claims are somewhat more fully set forth in the papers submitted in opposition to this motion. The Court will discuss the complaint in terms of the phrases used by the plaintiffs to describe the defendants' conduct and relate those phrases to the relevant provisions of the Sherman Act.

 The plaintiffs raise several points that are not disputed by the defendants. The parties apparently agree that 1) the antitrust laws apply to the health care industry, 2) conspiracies to restrain trade, conspiracies to monopolize, and monopolization are prohibited by the Sherman Act, 15 U.S.C. §§ 1 and 2, and 3) a private party ...


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