0.pdf - Woodman#039;s Food Market Inc v The Clorox Company...

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN WOODMAN’S FOOD MARKET, INC., Plaintiff, v. THE CLOROX COMPANY and THE CLOROX SALES COMPANY , Defendants. OPINION AND ORDER 14-cv-734-slc In this civil action for declaratory and injunctive relief, plaintiff Woodman’s Food Market, Inc. alleges that defendants The Clorox Company and The Clorox Sales Company (“Clorox”) have violated the price discrimination provisions of the Robinson-Patman Act, 15 U.S.C. § 13(a), (d) and (e), by offering to sell “large pack” products only to “club” retailers such as Costco and Sam’s Club and not “general market” stores like Woodman’s. In an order entered on February 2, 2015, I denied Clorox’s motion to dismiss under Fed. R. Civ. P. 12(b)(6), finding that even though Clorox legally may refuse to deal with a particular retailer, the use of special packaging and package sizes to benefit only certain customers stated a claim sufficient to survive front-end dismissal. Dkt. 50. Since then, things have zigged and zagged a bit: On February 24, 2015, Clorox unilaterally chose to end all business dealings with Woodman’s. That same day, Clorox moved to dismiss Woodman’s complaint as moot because Woodman’s no longer was a purchaser of its products and therefore could not suffer any further alleged discrimination. Dkt. 63. Woodman’s opposes that motion, arguing that it remains a “purchaser” under the act because now it will buy Clorox products through one or more wholesalers. Dkt. 69. In addition, Woodman’s now seeks to amend its complaint to add claims under § 1 of the Sherman Act. Dkt. 68. Clorox rejoins that its decision to terminate its business Woodman's Food Market, Inc. v. The Clorox Company et al Doc. 77 Dockets.Justia.com
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relationship with Woodman’s has deprived this court of subject matter jurisdiction in this case, which in turn prevents the court from granting Woodman’s leave to amend. Because Woodman’s has shown that it may still qualify as a purchaser with standing under the Act, I am denying Clorox’s motion to dismiss and granting Woodman’s motion for leave to file an amended complaint. OPINION I. Legal Standard As an initial matter, the parties dispute how the court should characterize Clorox’s pending motion to dismiss. Clorox contends that the complaint is moot, but it does not identify in its motion or brief which rule of civil procedure it is relying on. Woodman’s apparently construed the motion as a Rule 12(b)(6) motion to dismiss for failure to state a claim and argues that the motion should be converted to a motion for summary judgment under Rule 12(d) because Clorox relies on matters outside the pleadings. In its reply brief, Clorox states that it is moving for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and may rely on affidavits and other materials supporting its motion. See United Phosphorus Ltd. v. Angus Chem. Co. , 322 F.3d 942, 946 (7 Cir. 2003); th Sapperstein v. Hager , 188 F.3d 852, 855 (7 Cir. 1999) (“[W]here evidence pertinent to subject th matter jurisdiction has been submitted . . . the district court may properly look beyond the
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