David Kastrup wrote: > > Alexander Terekhov <[EMAIL PROTECTED]> writes: > > > Let's try once again, dak. > > > > The judge admits that Wallace alleges predatory pricing and yet > > dismisses "based on failure to allege an anticompetitive effect". > > > > Now, under 12(b)(6) standard, "the court accepts the allegations > > in the complaint as true, and it draws all reasonable inferences > > in favor of the plaintiff." > > But there is no substance to be found to support an allegation.
"When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court examines the sufficiency of the complaint, not the merits of the lawsuit. Fed. R. Civ. P. 12(b)(6); United States v. Clark County, Ind., 113 F.Supp.2d 1286, 1290 (S.D. Ind. 2000). The court will dismiss a complaint for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In making its determination, the court accepts the allegations in the complaint as true, and it draws all reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997); Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996)." > For > example, I can allege a person to be a rapist, but if there is no > purported victim, I can't make a case from that. Alleged victim is Wallace. To quote Judge Tinder, "The allegation in the Fourth Amended Complaint that the GPL is foreclosing Mr.Wallace from entering into the market for operating systems also is not a cognizable antitrust injury. The court understands Mr. Wallaces argument that the GPL may be preventing him from marketing his own operating system, and, for the purposes of the instant motion, accepts that allegation as true. However, while this may be significant enough from Mr. Wallaces perspective, a plaintiff must prove not only an injury to him or herself, but to the market as well, Martin v. Am. Kennel Club, Inc., 697 F. Supp. 997, 1003 (N.D. Ill. 1988), which Mr. Wallace has failed to do. As the court stated in its November 28, 2005 Entry, reduced opportunity as a competitor does not necessarily equate to an antitrust injury as recognized by the courts. Brunswick, 429 U.S. at 488. Indeed, injury in fact is a different beast than antitrust injury." So there's injury and it flows from the alleged predatory pricing (the allegation which Judge Tinder simply ignores in his analysis). That makes it antitrust injury because "predatory pricing has the requisite anticompetitive effect" (ARCO). > > Just waving some term around does not mean that there is a legal base > for waving the term around. > > > Inference of requisite anticompetitive effect from the allegations > > in the complaint is no rocket science -- "predatory pricing has the > > requisite anticompetitive effect" (ARCO). > > > > Where am I wrong, dak? > > Where is the anticompetitive effect? In alleged predatory pricing. regards, alexander. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
