Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

INTIMATE BOOKSHOP, INC. v. BARNES & NOBLE

February 15, 2000

THE INTIMATE BOOKSHOP, INC., PLAINTIFF,
V.
BARNES & NOBLE, INC., BARNESANDNOBLE.COM INC., BORDERS GROUP, INC., BORDERS, INC., AND WALDEN ACQUISITION COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Pauley, District Judge.

MEMORANDUM AND ORDER

Plaintiffs The Intimate Bookshop Inc. ("Intimate") and Wallace Kuralt ("Kuralt") filed this action on August 5, 1998 alleging violations of federal antitrust law and state law against numerous defendant retail bookstores and publishers. Thereafter, Kuralt withdrew all of his claims, and Intimate voluntarily dismissed its claims against a number of defendants. Intimate also withdrew all of its state claims and some of its federal antitrust claims. Intimate's remaining claims are for violations of Sections 2(c) and 2(f) of the Robinson-Patman Act, 15 U.S.C. § 13(c) and (f), against defendants Barnes & Noble, Inc.; Barnesandnoble.com, Inc.; Borders Group, Inc.; Borders, Inc.; and Walden Acquisition Company (collectively the "retailer defendants"). The retailer defendants move to dismiss Intimate's claims in part pursuant to Fed.R.Civ.P. 12(b)(6) and to require Intimate to provide a more definite statement of its other claims pursuant to Fed. R.Civ.P. 12(e). For the reasons set forth below, the retailer defendants' motion is granted in part and denied in part.

Background

For purposes of this motion, the following allegations in Intimate's amended complaint are assumed to be true. Intimate is a corporation which sells non-academic trade and mass-paperback books through a chain of approximately thirteen independent retail bookstores located in North Carolina, Georgia, and Washington, D.C. (Am.Compl. ¶ 8) The retailer defendants are retail bookstores which compete with Intimate and other independent retail booksellers. (Am.Compl. ¶¶ 16, 19, 25)

Intimate alleges that the retailer defendants are purchasing books from publishers at a unit price per book substantially lower than the price paid by Intimate and other independent retail bookstores. (Am. Compl. ¶ 45) While the retailer defendants receive a 60% to 65% discount from publishers, Intimate and other independent booksellers allegedly receive only a 41% to 46% discount. (Am.Compl. ¶¶ 47, 48) According to the amended complaint, the retailer defendants have also received secret discounts, rebates and deductions from publishers that were not offered to or made known to Intimate and other independent retail booksellers, including volume discounts in excess of published schedules, services such as ship dropping, deductions from and renegotiations of unpaid invoices, advertising allowances, promotional payments, and brokerage fees. (Am.Compl. ¶ 50) Intimate contends that the retailer defendants have received these favorable pricing arrangements through coercion, intimidation and threats to the publishers and have directed the publishers not to disclose the details of the arrangements to independent retail booksellers. (Am.Compl. ¶ 50A, 62F)

Intimate also alleges that the retailer defendants have financed themselves using unfair means. According to the amended complaint, the retailer defendants have reached their current state of financing and growth by setting their initial pricing schemes below cost. (Am.Compl. ¶¶ 62C, 62D) The retailer defendants have allegedly published materially false earning reports grossly inflating their earnings in order to raise capital for further, unnecessary expansion. (Am.Compl. ¶¶ 62J, 62K)

Intimate asserts that because of this price discrimination by the publishers, Intimate and other independent booksellers have lost substantial business and profits. Intimate's annual sales have decreased from $11,500,000 in fiscal 1995 to $500,000 in fiscal 1998. (Am.Compl. ¶ 9) Intimate has lost 96% of its sales to the retailer defendants. (Am.Compl. ¶ 62L) More than 50% of all independent retail booksellers have gone out of business during the past four years due to price discrimination in the industry. (Am.Compl. ¶ 54)

Discussion

I. Standard for Motion to Dismiss

In deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the Court's function is merely to assess the legal sufficiency of the complaint rather than to weigh the evidence that might be presented at a trial. See Festa v. Local 3 Int'l Broth. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990). In resolving a motion to dismiss, the pleadings and affidavits must be construed in favor of the plaintiff, and all doubts should be resolved in the plaintiff's favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). A complaint may not be dismissed under Fed.R.Civ.P. 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." Black Radio Network, Inc. v. NYNEX Corp., 44 F. Supp.2d 565, 572 (S.D.N Y 1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The issue before the Court on a motion to dismiss is not whether plaintiffs will ultimately prevail but whether plaintiffs are entitled to offer evidence in support of their claims. See Black Radio Network, 44 F. Supp.2d at 572.

II. Standard for Motion for More Definite Statement

Antitrust allegations, such as those asserted in this action, are governed by the notice pleading requirements set forth in Fed.R.Civ.P. 8(a). See American Booksellers Assoc., Inc. v. Houghton Mifflin Co., No. 94 Civ. 8566(JFK), 1995 WL 92270, at *5 (S.D.N.Y. March 3, 1995) (citing Broadcast Music, Inc. v. Hearst/ABC Viacom Entertainment Servs., 746 F. Supp. 320 (S.D.N.Y. 1990)). Thus, Intimate's complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). However, a party may make a motion for more definite statement "if a pleading to which a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.