13‐3933 
Concord Associates, L.P. v. Entertainment Properties Trust 


                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                     August Term, 2014

     (Argued:              April 29, 2015                                 Decided: March 18, 2016)

                       Docket No. 13-3933-cv
 ________________________________________________________________
                              ________

     CONCORD ASSOCIATES, L.P., CONCORD RACEWAY CORPORATION, CONCORD KIAMESHA
   CASINO, LLC, CONCORD KIAMESHA CAPITAL CORP., CONCORD RESORT, LLC, CONCORD
                  KIAMESHA, LLC, CONCORD KIAMESHA HOTEL, LLC,

                                                     Plaintiffs-Appellants,

                                                                - v. -

   ENTERTAINMENT PROPERTIES TRUST, EPT CONCORD, LLC, EPT CONCORD II, LLC,
  EMPIRE RESORTS, INC., MONTICELLO RACEWAY MANAGEMENT, INC., GENTING NEW YORK
              LLC, JOHN DOES 1—5, KIEN HUAT REALTY III LIMITED,

                                                      Defendants-Appellees.

________________________________________________________________

Before:               JACOBS, POOLER,               AND       HALL, Circuit Judges.

     Appeal from the United States District Court for the
Southern District of New York (Ramos, J.) granting
defendants’ motions to dismiss claims of violations of the
Sherman Act, 15 U.S.C. §§ 1 & 2, and denying plaintiffs’
motion for reconsideration. In order to state a claim for
a Sherman Act violation, a plaintiff must allege an
antitrust injury, define the relevant geographic market,
and allege conduct in violation of antitrust laws.     The
District Court found, with respect to the Sherman Act
claims, that the plaintiffs’ proposed geographic and
product markets were not sufficiently plausible to survive
a motion to dismiss. We agree and hold that the plaintiffs
fail to state a claim for violations of the Sherman Act
and, accordingly, AFFIRM the District Court’s dismissal of
the complaint.
                        SCOTT A. MARTIN, (James I. Serota &
                        Carmen Beauchamp Ciparick, on the
                        brief), Greenberg Traurig, LLP, New
                        York,   New    York,   and   Alfred   E.
                        Donnellan,       DelBello      Donnellan
                        Weingarten     Wise     &    Wiederkehr,
                        L.L.P.,   White     Plains,    NY,   for
                        Plaintiffs-Appellants            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.

                        MOSES SILVERMAN (Joshua D. Kaye, Jason
                        L. Meizlish, & Elana R. Beale, on
                        the brief), Paul, Weiss, Rifkind,
                        Wharton & Garrison LLP, New York, New
                        York,      for     Defendants-Appellees
                        Empire Resorts, Inc. and Monticello
                        Raceway Management, Inc.

                        Y. DAVID SCHARF, (Kristin T. Roy, &
                        Gayle   Pollack,    on   the   brief)
                        Morrison Cohen LLP, New York, New
                        York,     for      Defendant-Appellee
                        Entertainment Properties Trust, EPT
                        Concord, LLC, and EPT Concord II,
                        LLC.

                        HOWARD ZELBO (Leah Brannon, on the
                        brief), Cleary Gottlieb Steen &
                        Hamilton LLP, New York, NY, for
                        Defendants-Appellees    Kien  Huat
                        Realty III Limited and Genting New
                        York LLC.


HALL, Circuit Judge:

    Plaintiffs-Appellants   are     seven   entities   who   are

collectively attempting to develop a casino-resort complex in

                               2 
 
the Catskills region of New York State. Defendants-Appellees are

three groups of investors and business owners with an interest

in the casino industry and horse racing in the Catskills who,

the plaintiffs claim, entered into an anti-competitive scheme to

obstruct the plaintiffs’ resort development project. Underlying

this     antitrust       dispute    is     a    threshold        question    that     is

ultimately dispositive of this appeal: For the purposes of an

antitrust claim, whether the plaintiffs have alleged a plausible

relevant geographic market for their casino-related products and

services.

                         Facts and Procedural History

        The facts of this case, which we view in the light most

favorable to the plaintiffs, are set out in the district court’s

Order    and    Opinion    in     detail   and     are    briefly     summarized      as

follows.       The   plaintiffs,     including         Concord     Associates,      L.P.

(“Concord      Associates”),       Concord      Raceway     Corporation,       Concord

Kiamesha       Capital    Corporation,         Concord    Resort,    LLC    (“Concord

Resort”),      Concord    Kiamesha,      LLC,    and     Concord    Kiamesha     Hotel,

LLC, are collectively attempting to develop a casino gambling

resort and race track known as the New Concord Casino Resort at

the site of the former Concord Resort Hotel, located in the

Catskills      Mountains     in    Thompson,       New    York.     The    defendants,

including Entertainment Properties Trust, EPT Concord, LLC, and

EPT Concord II, LLC (collectively, “EPT”); Empire Resorts, Inc.

                                           3 
 
and Monticello Raceway Management, Inc. (collectively “Empire”);

Kien Huat Realty III Limited (“Kien Huat Realty”); Genting New

York LLC and John Doe entities 1–5 (collectively “Genting” or

“Genting defendants”), are real estate developers and casino and

gambling facility operators.

        The plaintiffs intend to develop racing and casino gambling

facilities,    known   as   “racinos,”     on   two   adjoining    properties,

including 140 acres at the site of the Concord Resort Hotel,

which was once a world-famous vacation destination for visitors

to the Catskills Mountains until its closing and bankruptcy in

1998, and also 1,500 acres of adjacent land containing golf

courses,    residential     properties,     and   vacant   land.      In   1999,

plaintiff Concord Associates purchased these land parcels from

the Concord Resort Hotel bankruptcy estate. In furtherance of

their    development   efforts,    the     plaintiffs    have   conducted    an

environmental review, obtained necessary preliminary licensing

approvals    and   development    permits,      and   performed   substantial

work at the construction site.

        In June 2010, as part of a legal settlement intended to

resolve    several   lawsuits    between    defendant    EPT    and   plaintiff

Concord Associates, the plaintiffs transferred the 1,500 acre

parcel to defendant EPT Concord II. Under the settlement, the

plaintiffs retained the right for exclusive use and exploitation

of the property, including the right to develop the proposed

                                     4 
 
resort.     Accordingly,          Concord        Associates     entered       into     an

agreement with EPT Concord II that specifically reserved the

right for the plaintiffs to lease a tract for a “racino” on the

property    along      with      additional      easements,     leases,      and    other

rights related to development of the property. In addition, the

terms    included      a    restrictive     covenant     pursuant      to    which    EPT

Concord II agreed that its successors or assignees would not own

or     operate   any       competing     casino,    racino,     racing      or     gaming

facility on the property.

        In addition to entering the agreement with EPT Concord II,

the    plaintiffs      entered      into    a    contractual    relationship         with

Empire to further the development of their resort. Since 1993,

Empire had owned and operated the Monticello Raceway, located

approximately four miles from the plaintiffs’ proposed resort.

In 2004, the Monticello Raceway began offering casino gaming,

and since that time it has been the only race track or casino in

the Catskills. The closest racinos are eighty miles away in

Pennsylvania, and 100 miles away in Yonkers. Monticello Raceway

also    claims   that       it   “does     not    compete     directly      with   other

harness     racing     tracks      in    New     York   State    for     live      racing

patrons.” Am. Compl. ¶ 131. Thus, according to the plaintiffs,

Empire’s position as the sole operator of casino gaming in the

Catskills makes it “the only game in town” for local consumers

and tourists. Am. Compl. ¶ 133.

                                            5 
 
        Empire was initially supportive of the plaintiffs’ proposed

resort, and in March 2009 it entered into an agreement with

Concord           Associates         to    provide          management       services          at   the

plaintiffs’ proposed Raceway. But in November 2009, defendant

Kien Huat Realty—which, together with other Genting defendants

makes        up    one     of     the      world’s         largest    gaming       conglomerates—

acquired a majority interest in Empire. According to plaintiffs,

Kien        Huat    Realty       has      since      worked     to    undermine          plaintiffs’

resort        project.         Shortly      after          November       2009,    Empire       ceased

cooperating with the plaintiffs and opened a rival “racino” in

collaboration with Genting at the site of the Aqueduct Race

Track, approximately 100 miles from the site of the plaintiffs’

proposed          Resort.       In     addition,       in    April        2011    EPT    and    Empire

entered           into    an     exclusive           agreement       to     develop      their      own

“racino” project adjacent to the plaintiffs’ proposed resort and

repudiated          the        lease      and   restrictive          covenants          promised    to

Concord Associates. The plaintiffs claim that Genting, EPT and

Empire        are        all    members         of    an     anti-competitive            scheme      to

undermine the plaintiffs’ resort development project.

        After bringing actions for breach of contract in the New

York state court without success,1 the plaintiffs commenced this

federal antitrust action on March 7, 2012. In response to the

        1
        See Concord Assocs., L.P. v. EPT Concord, LLC, No. 1611-
2011 (N.Y. Sup. Ct. Sullivan Cnty. June 30, 2014).


                                                      6 
 
defendants’ motions to dismiss, the plaintiffs filed a First

Amended Complaint (the “Amended Complaint”) that purported to

define   the   relevant     geographic         market    for    the       products   the

plaintiffs’     resort    would     have       to    offer.     As    pleaded,       that

relevant     market      includes       the     area     within       a     radius     of

approximately 100 miles from the Town of Thompson, with a total

population of more than 18–20 million people, of whom almost

ninety percent reside in the New York City metropolitan area

(“NY Metro area”). In response to the Amended Complaint, the

defendants moved to dismiss it on the basis that the plaintiffs

had not defined a plausible geographic market. Ultimately, the

district     court    granted     the    motions        to    dismiss      as   to   all

defendants     without    considering          the   additional       materials      the

plaintiffs submitted or a proposed Second Amended Complaint.2


     2
        The plaintiffs contend that the district court erred in
failing to consider extrinsic materials they submitted in
opposition to the defendants’ motions to dismiss, including
several exhibits and Securities & Exchange disclosures. The
plaintiffs claim that these documents show that Genting
conspired to exclude market competition in violation of
antitrust laws. We need not address the substance of the
plaintiffs’ arguments because our decision is based on the
plaintiffs’ failure to allege a plausible relevant market in
which competition could be restrained. In any event, the
district court correctly declined to consider the extrinsic
materials, as they were not incorporated by reference or
otherwise integral to the Complaint. See Allen v. WestPoint–
Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (stating that,
in adjudicating Rule 12(b)(6) motion, district court must
confine its consideration “to facts stated on the face of the
complaint,   in  documents   appended  to   the   complaint  or
incorporated in the complaint by reference, and to matters of
                                          7 
 
See Concord Assocs., L.P v. Entm’t Props. Tr., et al., No. 12-

1667, 2014 WL 1396524, at *27 (S.D.N.Y. Apr. 9, 2014). Further,

the court dismissed the plaintiffs’ state law claims, declining

to   exercise     supplemental         jurisdiction          under     28    U.S.C.

§ 1367(c)(3).3     Id.     The    plaintiffs          filed     a     motion     for

reconsideration, which the district court denied, reasoning that

it could not consider materials not presented as part of the

Amended   Complaint      and   that,    in     any    event,    the    plaintiffs’

additional    arguments    failed      to    rectify    their    fatally     flawed

market definitions. See Concord Assocs., L.P. v. Entm’t Props.

Tr., No. 12-1667, 2014 WL 5643240, at *6–7 (S.D.N.Y. Nov. 3,

2014).

     On appeal, the plaintiffs contend that the district court

erred in deciding that the Amended Complaint failed to allege a

plausible     relevant    geographic         market    and    that    the   factual

allegations     were     insufficient        to   connect      certain      of   the

defendants to the alleged conspiracy. The plaintiffs also claim

the district court erred in denying them leave to amend the


which judicial notice may be taken”). Further, even if the
documents were properly the subject of judicial notice, judicial
notice would not be appropriate because the plaintiffs did not
rely on the documents in drafting the Complaint. Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
     3
         In this appeal, the plaintiffs have not specifically
challenged the district court’s dismissal of their state law
claims, and we therefore consider any such challenge to be
waived. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A.
de C.V., 412 F.3d 418, 428 (2d Cir. 2005).
                                        8 
 
Amended Complaint. Because we agree with the district court that

the       plaintiffs’     proposed            market      definition        is   inherently

implausible,       we    find    that         the    plaintiffs       failed     to     allege

adequate      facts     to    state       a     violation        of   the     Sherman       Act.

Therefore,      we      affirm      the       judgment      of    the    district        court

dismissing the complaint.

                                          Analysis

        This court “review[s] de novo a district court’s dismissal

of    a    complaint     pursuant         to     Rule     12(b)(6),         construing       the

complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the

plaintiff’s favor.” Chambers v. Time Warner Inc., 282 F.3d 147,

152 (2d Cir. 2002).

        “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is facially plausible “when

the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged,” meaning that there is “more than a

sheer      possibility       that     a       defendant     acted       unlawfully.”         Id.

(citing Twombly, 550 U.S. at 556-57). At the same time, there is

no    heightened      pleading      standard         in   antitrust      cases,       and    the

                                                9 
 
facts alleged are subject to Federal Rule of Civil Procedure

8(a)’s general requirement of a “short plain statement” of facts

supporting a plausible claim. Todd v. Exxon Corp., 275 F.3d 191,

198 (2d Cir. 2001).

       The plaintiffs brought claims under Sections One and Two of

the Sherman Act. Section One of the Sherman Act declares illegal

“[e]very      contract,      combination . . .           ,    or    conspiracy,        in

restraint of trade or commerce . . . .” 15 U.S.C. § 1. Section

Two    of   the   Sherman    Act    makes     it   illegal    “to       monopolize,    or

attempt     to    monopolize,       or      combine      or   conspire . .        .    to

monopolize . . . trade or commerce . . . .” 15 U.S.C. § 2.

Section Four of the Clayton Act provides a private right of

action, with a recovery of treble damages, to “any person who

[has been] injured in his business or property by reason of

anything forbidden in the antitrust laws . . . .” 15 U.S.C. §

15(a).

       To survive a motion to dismiss, a Sherman Act claim must

“(1)    define    the   relevant         geographic      market,        (2)   allege   an

antitrust     injury,       and    (3)    allege      conduct      in    violation     of

antitrust laws.” New York Medscan LLC v. N.Y. Univ. Sch. Of

Med., 430 F. Supp. 2d 140, 145 (S.D.N.Y. 2015). In such actions,

the    relevant    market    is    the    “‘area    of    effective       competition’

within which the defendant operates.” AD/SAT, Div. of Skylight,

Inc. v. Assoc. Press, 181 F.3d 216, 227 (2d Cir. 1999) (quoting

                                            10 
 
Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327-28

(1961)). That is, a market consists of an area where sellers,

“if unified by a hypothetical cartel or merger, could profitably

raise prices significantly above the competitive level.” Id. at

228.

        For antitrust purposes, the concept of a market has two

components:      a    product      market   and   a   geographic     market.    Bayer

Schering Pharma AG v. Sandoz, Inc., 813 F. Supp. 2d 569, 574

(S.D.N.Y 2011). “A relevant product market consists of ‘products

that    have   reasonable       interchangeability       for   the    purposes   for

which they are produced—price, use and qualities considered.’”

PepsiCo, Inc. v. Coca–Cola Co., 315 F.3d 101, 105 (2d Cir. 2002)

(per curiam) (quoting United States v. E.I. du Pont de Nemours &

Co., 351 U.S. 377, 404 (1956)). By contrast, “the geographic

market     analysis      seeks      to   identify     the   precise     geographic

boundaries of effective competition in order to reach a more

informed conclusion on potential harm to the market.” Mathias v.

Daily    News,       L.P.,   152    F.Supp.2d     465,   480   (S.D.N.Y.       2001).

“Courts generally measure a market’s geographic scope, the ‘area

of effective competition,’ by determining the areas in which the

seller operates and where consumers can turn, as a practical

matter, for supply of the relevant product.” Heerwagen v. Clear

Channel Commc’ns, 435 F.3d 219, 227 (2d Cir. 2006) (citation

omitted), overruled on other grounds by Teamsters Local 445

                                            11 
 
Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196,

201 (2d Cir. 2008).

         “Taken   together,    the   product      and    geographic    components

illuminate the relevant market analysis, which is essential for

assessing the potential harm to competition from the defendants’

alleged misconduct.” Mathias, 152 F. Supp. 2d at 481. And this

analysis is equally applicable to claims made under Section Two

of the Sherman Act, because “without a definition of that market

there is no way to measure the defendant’s ability to lessen or

destroy competition.” Xerox Corp. v. Media Sciences Int’l, Inc.,

511 F. Supp. 2d 372, 383 (S.D.N.Y. 2007) (quoting Walker Process

Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177

(1965) (internal alterations omitted)).

     Although      market     definition     is   a     “deeply    fact-intensive

inquiry” not ordinarily subject to dismissal at the pleadings

stage,    Todd,   275   F.3d    at   199,    there      is   “no   absolute   rule”

against dismissal where the plaintiff has failed to articulate a

plausible explanation as to why a market should be limited in a

particular way, id. at 200. Thus, in order to survive a motion

to dismiss, it is appropriate for a district court to assess

whether the plaintiffs’ complaint asserts sufficient facts to

allege plausibly the existence of both a product and geographic

market. Id.



                                       12 
 
        The      district      court     determined            that       the    plaintiffs’

antitrust         claims    were       subject      to        dismissal4        because    the

plaintiffs          had     failed      to      plead         a     plausible       relevant

racing/gaming market in the Catskills region.5 Concord Assocs.,

2014        WL   1396524,   at   **10,       16-17.      It       found   the    plaintiffs’

proposed          geographic       market       “too      narrow          and     inherently

implausible.” Id. at *16. We agree.

        The plaintiffs have provided no basis on which to justify

their        proposed     geographic      market       definition.          Although      they

define the relevant market as “the Racing/Gaming Market in the

Catskills region,” Appellants’ Br. 15, an area consisting of

primarily four counties, they also assert that the resort would

draw customers from a “catchment area” consisting of twenty-


        4
        Because we affirm the district court on the basis that
the plaintiffs failed to allege a plausible geographic market,
we do not decide whether the plaintiffs also failed to allege an
antitrust violation or an antitrust injury.
        5
         As an initial matter, the plaintiffs claim to have
alleged that the defendants committed a per se violation of
Section 1 of the Sherman Act by engaging in “a group boycott”
and a “refusal to deal,” which relieves the plaintiffs from the
requirement of demonstrating a market-wide anticompetitive
effect. A per se violation involves conduct “so plainly harmful
to competition and so obviously lacking in any redeeming pro-
competitive values that [it is] ‘conclusively presumed illegal
without further examination.’” Capital Imaging Assocs., P.C. v.
Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 542 (2d Cir.
1993) (quoting Broadcast Music, Inc. v. CBS, 441 U.S. 1, 8
(1979)). We agree with the district court that the plaintiffs
have failed to allege a per se violation of the Sherman Act.
See Concord Assocs., 2014 WL 1396524, at *11.


                                              13 
 
three        counties          in    New     York,           Northeastern       New    Jersey,       and

Pennsylvania, with a total population of more than 18–20 million

people. Concord Assocs., 2014 WL 1396524, at *14. Conveniently

for   the      plaintiffs,            this      proposed           market    definition        excludes

gambling markets in Connecticut, Pennsylvania, and New Jersey

that are well-known and accessible to residents of the NY Metro

area. We find unpersuasive the plaintiffs’ claim that the bulk

of the resort’s potential customers would not view Atlantic City

and Connecticut as “reasonably interchangeable substitutes for a

Catskills       racino          in    terms       of     distance         as    well     as    regional

character.”          Appellants’            Br.    22.         Although        facilities       in   the

latter locations are approximately 125 miles from the NY Metro

area rather than 100 miles, the plaintiffs fail to present a

plausible       basis          for    explaining             why   an   additional       twenty-five

miles    makes           the    difference.            These        locations      are    reasonably

accessible          by    car        to    NY   Metro         area      residents,       and    as   the

plaintiffs       concede,            these      other         facilities        provide       amenities

comparable to the plaintiffs’ proposed resort.

        As    for    the        “regional         character”            of   the   Catskills,        the

plaintiffs argue that the Catskills region comprises a “unique”

geographic market for a “racino” and hotel complex based on its

status as a tourist destination with “popular natural resources

for water sports, mountain sports, hunting and golf.” Am. Compl.

¶ 154. However, “[m]erely asserting that a commodity is in some

                                                       14 
 
way unique is insufficient to plead a relevant market. Rather,

an antitrust complaint must explain why the market it alleges is

the   relevant,          economically    significant       product    market.”      B.V.

Optische Industrie De Oude Delft v. Hologic, Inc., 909 F. Supp.

162, 171 (S.D.N.Y. 1995). We agree with the district court that

the plaintiffs have not plausibly alleged why their proposed

resort differs from the variety of other options for tourists to

combine a gambling trip, access to natural resources, and other

related activities available more or less the same distance from

the NY Metro area as Thompson, New York. See, e.g., Smugglers

Notch Homeowners’ Assoc., Inc. v. Smugglers’ Notch                         Mmgt. Co.,

Ltd.,    08    Civ.      186, 2009      WL    1545829 (D.    Vt.     May   29,    2009),

affirmed, 414 F. App’x 372 (2d Cir. 2011) (holding that antitrust

plaintiffs         had    not   shown   why    their   “vacation     properties      and

recreation facilities . . . are different from the myriad other

options       at    ski     resorts     in    Vermont”).     We    agree    with     the

defendants’ argument that various locations around New York City

could also be thought of as tourist destinations, where tourists

could    gamble and have access to natural                   resources      and    other

related activities.

        The plaintiffs compare their proposed geographic market to

the Aspen skiing market and the Atlantic City gambling market,

both of which have been implicitly recognized as valid market

definitions in antitrust suits. See Aspen Skiing Co. v. Aspen

                                              15 
 
Highlands       Skiing       Corp.,    472    U.S.     585,      587-88    (1985);       Mirage

Resorts, Inc. v. Trump, No. 97 Civ. 6693(DAB), 1998 WL 898340,

at *2 (S.D.N.Y Dec. 22, 1998). But the plaintiffs in those cases

contended that the markets were highly localized, as tourists

specifically          came     to     Aspen     and        Atlantic    City,       and    then

considered        only       product      options          within     those    destination

locations       for    skiing       and   gambling,          respectively.         See    Aspen

Skiing Co., 472 U.S. at 596 (describing Aspen as a “destination”

market and detailing dispute among ski resorts within Aspen);

Mirage Resorts, Inc., 1998 WL 898340, at *3 (stating plaintiff’s

claim     that     defendant        had      “suppress[ed]          competition      in     the

Atlantic        City     gaming        market”).           Furthermore,       the        market

definitions in Aspen Skiing and Mirage Resorts were not subject

to challenge, and the validity of those market definitions was

therefore not at issue. See Aspen Skiing Co., 472 U.S. at 597–98

(explaining that primary issue before jury was whether defendant

had   monopolized        the     market);       Mirage       Resorts,      Inc.,     1998    WL

898340, at *2 (stating that defendant’s arguments for dismissal

included        plaintiff’s           failure        to      allege       anti-competitive

activities, elements of a conspiracy, or injury to competition).

        While    plaintiffs         argue     that        some    gambling    markets       are

uniquely        localized,      relying       on      In    the     Matter    of    Pinnacle

Entertainment, Inc., No. 9355, 2013 WL 2444712, at *9–10 (F.T.C.

May 28, 2013), the mere fact that certain gambling markets may

                                               16 
 
be localized does not relieve the plaintiffs of the requirement

to show why the Catskills gambling market is a localized or

regional       market—particularly                where           the    vast       majority        of

customers are not local and have a myriad of other comparable

options.

        Moreover,         as    the   district          court      noted,     “by     arbitrarily

excising those alternative options and essentially arguing that

there        are     no        comparable      competitors,              Plaintiffs          exempt

themselves from the requirement of defining the market according

to     the    rules        of    interchangeability                and    cross-elasticity.”

Concord      Assocs.,          2014   WL    1396524          at   *17.   In     so    doing,       the

plaintiffs further undermine the plausibility of their antitrust

claims. See B.V. Optische Industrie De Oude Delft, 909 F. Supp.

at    171-72       (“Because      a   relevant          market      includes        all    products

which are reasonably interchangeable, . . . [the plaintiffs’]

failure      to    define       [the]      market       by    reference       to     the    rule    of

reasonable interchangeability is, standing alone, valid grounds

for dismissal.”) (internal quotation and citation omitted).

         Because plaintiffs failed to plead a relevant geographic

    market in the Amended Complaint, the district court correctly

    concluded that each of the Sherman Act claims was subject to

    dismissal.

         Finally,         we    address     the     plaintiffs’          argument          that    the

    district court erred by not granting them leave to file a second

                                                  17 
 
    amended complaint. We review for abuse of discretion a district

    court’s decision to deny a party leave to amend a complaint.

    Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003).

    The    plaintiffs      contend        that    the    district            court     erroneously

    determined that the plaintiffs had withdrawn their request for

    leave to amend the Amended Complaint. See Concord Associates,

    2014 WL 1396524, at *27. We need not decide this question,

    however,       because    granting       leave       to        file      a    second    amended

    complaint would have been futile. See Nielsen v. Rabin, 746 F.3d

    58, 62 (2d Cir. 2014). Although the plaintiffs’ proposed Second

    Amended    Complaint      alleges       two        relevant          markets—a      “Catskills

    Racing/Gaming         Market,”        ¶ 151,       and        a    “Downstate       New    York

    Racing/Gaming         Market,”    ¶ 158—rather                than      one   market,     these

    proposed markets refer to the same geographic area as the market

    alleged in the Amended Complaint. This re-characterization fails

    to    remedy    the    flaws     in    the    plaintiffs’               proposed    geographic

    market definition.

                                             Conclusion

           We hold that the plaintiffs’ pleadings fail to define a

    plausible relevant geographic or product market for antitrust

    purposes, and that the district court properly dismissed their

    Sherman    Act    claims.      The     judgment          of       the    district      court   is

    AFFIRMED.



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