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Concord Associates, L.P. v. Entertainment Properties Trust

United States District Court, S.D. New York

November 3, 2014

CONCORD ASSOCIATES, L.P., CONCORD RACEWAY CORPORATION, CONCORD KIAMESHA CASINO, LLC, CONCORD KIAMESHA CAPITAL CORP., CONCORD RESORT, LLC, CONCORD KIAMESHA, LLC, and CONCORD KIAMESHA HOTEL, LLC, Plaintiffs,
v.
ENTERTAINMENT PROPERTIES TRUST, EPT CONCORD, LLC, EPT CONCORD II, LLC, EMPIRE RESORTS, INC., MONTICELLO RACEWAY MANAGEMENT, INC., KIEN HUAT REALTY III LIMITED, GENTING NEW YORK LLC, and JOHN DOES 1 TO 5, Defendants.

James I. Serota, Scott A. Martin, Roy Taub, Greenberg Traurig LLP, New York, New York, Attorneys for Plaintiffs.

Moses Silverman, Joshua D. Kaye, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, Attorneys for Defendants Empire Resorts Inc. and Monticello Raceway Management, Inc.

Y. David Scharf, Kristin T. Roy, Gayle E. Pollack, Morrison Cohen LLP, New York, New York, Attorneys for Defendants Entertainment Properties Trust, EPT Concord, LLC, and EPT Concord II, LLC.

Howard S. Zelbo, Matthew M. Bunda, Leah Brannon, Cleary Gottlieb Steen & Hamilton LLP, New York, New York and Washington, D.C., Attorneys for Defendants Kien Huat Realty III Limited and Genting New York LLC.

OPINION & ORDER

EDGARDO RAMOS, District Judge.

This litigation concerns an alleged conspiracy to monopolize and monopolization of the racing and casino gaming industry in the Catskills region of New York State. The Plaintiffs are entities who collectively are attempting to build a casino-resort complex which would offer a luxury hotel, name entertainment and championship golf in addition to harness racing and casino gaming. By Opinion and Order entered on September 18, 2013 (the "September 18 Order" or the "Order"), Doc. 69, this Court granted two separate motions by defendants to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] The Court also denied Plaintiffs' request for leave to file a second amended complaint. Order at 50. Plaintiffs now move pursuant to Local Rule 6.3 for reconsideration of so much of the September 18 Order as denied leave to file a second amended complaint. Doc. 72. For the reasons set forth below, the motion is DENIED.

II. Procedural History

Plaintiffs commenced this action on March 7, 2012, Doc. 1, and filed an Amended Complaint on June 27, 2012. Doc. 26. The Amended Complaint followed a request by defendants Empire Resorts, Inc. and Monticello Raceway Management, Inc. (the "Empire Defendants") for leave to file a motion to dismiss the original complaint pursuant to Rule 12(b)(6). In their letter request, the Empire Defendants asserted that the original complaint was subject to dismissal, because, among other deficiencies,

"... [T]he Complaint fails adequately to allege a relevant product and geographic market in which trade was allegedly unreasonably restrained or monopolized.... Plaintiffs also offer no allegations whatsoever to support their vague description of a geographic market as the "Catskill Region" encompassing Sullivan County, New York and extending into [unidentified areas of] Delaware, Greene and Ulster Counties."... Indeed, numerous specific allegation in the Complaint suggest that any relevant geographic market would be much greater than these four New York counties.... In short, dismissal is warranted because Plaintiffs allege nothing more than an unrealistically narrow market of the type courts have characterized as "strange red-haired, bearded, one-eyed man with a limptype" market."

Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Reconsideration ("Defendants' Mem."), Exhibit 3, March 30, 2012 letter of Moses Silverman at 2 (internal citations omitted). In accordance with this Court's Individual Rules, a pre-motion conference on Defendants' request was held on April 25, 2012. At that time, after additional discussion concerning Defendants' views on the inadequacy of the defined markets, the Court granted Plaintiffs leave to file the Amended Complaint to address those concerns.

The Amended Complaint alleged five causes of action. Counts I through III alleged violations of Sections 1 and 2 of the Sherman Act; and Counts IV and V alleged violations for tortious interference with contract and with business relations, respectively, under New York state law. Am. Compl. ¶¶ 166, 173, 176, 185, 190-196, 197-202. In the Amended Complaint, Plaintiffs defined the relevant geographic market as a 100-mile radius from the Town of Thompson, Sullivan County, New York, where the Concord site is located. Id. ¶¶ 147, 150.

The Defendants again sought leave to dismiss the Amended Complaint, and again asserted, among other reasons, that Plaintiffs "have failed to allege facts that demonstrate that there is a relevant market in which competition could be restrained." Defendants' Memorandum, Ex. 4, July 25, 2012 letter of Moses Silverman at 3. A pre-motion conference was scheduled for September 14, 2012. Doc. 34. On September 13, 2012, the day before the scheduled conference, Plaintiffs' newly retained counsel submitted a letter requesting that the conference be adjourned, and noting their "intention to make substantive revisions" to the Amended Complaint. Counsel indicated that they would be prepared to file and serve a proposed second amended complaint within 21 days. Id.

The Court denied the request for the adjournment and the pre-motion conference was held on September 14, 2012 as scheduled. At that time, the Court allowed Defendants to file motions to dismiss the Amended Complaint and set a briefing schedule therefor. The Court also instructed Plaintiffs that they could submit a letter to the Court if they wished to file a Second Amended Complaint. The Defendants filed their moving papers on September 25, 2012, Docs. 41, 44, Plaintiffs filed their opposition papers on October 25, 2012, Docs. 49-50, and Defendants filed their reply papers on November 8, 2012, Docs. 53-54. In response to the motion of the Defendants Kien Huat Realty III Limited and Genting New York, LLC (the "Genting Defendants"), [2] but not in response to the motion of the Empire Defendants, Plaintiffs indicated in a footnote that "[i]n the event that the Court were inclined to grant any part of the Motion to Dismiss, Plaintiffs respectfully request that leave to amend be allowed in the interests of justice." Doc. 50 at 22 f.n. 14.

On November 29, 2012, after the motions to dismiss were fully briefed, Plaintiffs submitted a letter requesting a pre-motion conference to seek leave to file a Second Amended Complaint. The letter request attached the proposed Second Amended Complaint. Plaintiffs' Memorandum of Law in Support of their Motion for Reconsideration ("Plaintiffs' ...


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