10-0261-cv
Astra Media Group, LLC v. Clear Channel Taxi Media, LLC




                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1.
When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix
or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy
of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 15th day of February, two thousand eleven.

PRESENT:
                 AMALYA L. KEARSE,
                 RALPH K. WINTER,
                 PETER W. HALL,
                            Circuit Judges.

______________________________________________

Astra Media Group, LLC,

                          Plaintiff-Appellant,

                           v.                                                   10-0261-cv

Clear Channel Taxi Media, LLC, and The New York City Taxi and Limousine Commission,

                  Defendants-Appellees.
______________________________________________

FOR APPELLANT:                                       DAVID W. PHILLIPS, LeClair Ryan, New York, NY.

FOR APPELLEES:                                       DONNA M. DOBLICK (Emily Bab Kirsch and James
                                                     C. Martin, on the brief) Reed Smith LLP,

                                                          1
                                                  Pittsburgh, PA, for Defendant-Appellee Clear
                                                  Channel Taxi Media, LLC.

                                                  MORDECAI NEWMAN (Larry A. Sonnenshein,
                                                  Sheryl R. Neufeld, on the brief), for Michael A.
                                                  Cardozo, Corporation Counsel of the City of New
                                                  York, New York, NY, for Defendant-Appellee New
                                                  York City Taxi & Limousine Commission.


          Astra Media Group, LLC appeals from the judgment of United States District Court for

the Southern District of New York (Buchwald, J.) dismissing its complaint against Clear

Channel Taxi Media, LLC under Federal Rule of Civil Procedure 12(b)(6) and granting

summary judgment against it on its claims against the New York City Taxi and Limousine

Commission (“TLC”).1 Although we AFFIRM the district court’s dismissal of Astra Media’s

Sherman Act claim against Clear Channel for reasons similar to those given by the district court

in its opinion, Astra Media Group, LLC v. Clear Channel Taxi Media, LLC, 679 F. Supp.2d 413,

424-25 (S.D.N.Y. 2009), because the district court summarily dismissed that claim and the

complaint’s only other federal claim (which has not been pursued on appeal), and plaintiff’s

remaining claims were not otherwise removable to federal court, we VACATE so much of the

judgment as dismissed Astra Media’s state-law claims and REMAND those claims to the district

court for entry of an order remanding those claims to the state court from which the action was

removed. See 28 U.S.C. § 1441(b) and (c). UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED, that the judgment of the district court is

AFFIRMED in part and VACATED and REMANDED in part.


          1
              We assume the parties’ familiarity with the facts, procedural history, and issues on
appeal.

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       The district court dismissed Astra Media’s claim that Clear Channel engaged in predatory

pricing in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. We review dismissals under

Rule 12(b)(6) de novo. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.

2010). To survive a motion to dismiss, a complaint must comport with the minimal requirements

set forth in Federal Rule of Civil Procedure 8(a)(2) as interpreted by the Supreme Court in

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Although Rule 8(a)(2) requires only “a short plain

statement of the claim showing that the pleader is entitled to relief,” Iqbal requires “factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 129 S.Ct. at 1949. This involves a two-step process. First,

conclusory statements must be disregarded, and, second, the remaining factual assertions must,

when read together, make a plausible case for relief. Id. at 1949-50. The complaint must be

dismissed “where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct . . ..” Id. at 1950.

        Reviewing this portion of the complaint de novo, we agree with the district court that the

predatory pricing claim is insufficiently pled. A defendant’s pricing practice violates the

Sherman Act only if the plaintiff can “prove that the prices complained of are below an

appropriate measure of [the defendant’s] costs.” Brooke Group Ltd. v. Brown & Williamson

Tobacco Corp., 509 U.S. 209, 222 (1993). The complaint fails properly to allege as much.

       To begin with, Astra Media fails to allege plausibly that Clear Channel’s price with

respect to the Disney Theatrical bid was below cost. The complaint is silent with respect to what

price Clear Channel ultimately charged Disney or what Clear Channel’s actual costs were.

Instead, Astra Media simply states that $170 per taxicab per month “is close to the industry


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standard” cost for contracts such as Disney’s and that, to the extent Clear Channel priced below

this, Clear Channel was carrying advertising below its actual cost. These assertions are both

conclusory. First, Astra Media provides no facts to support its contention that $170 is actually

close to the standard industry cost. It is unclear from the complaint whether the industry

standard is higher or lower than $170 or by how much. Second, it gives no basis to infer

reasonably that Clear Channel—which, as the largest supplier of taxi-tops in New York City,

may enjoy substantial economies of scale—has the same cost structure as the rest of the industry.

Astra Media, therefore, failed properly to plead that Clear Channel’s prices were below an

appropriate measure of its costs.2

       That said, even if the complaint did contain adequate factual assertions about Clear

Channel’s price and cost with respect to Disney, these assertions are still limited to a single bid

for a single contract. In a business environment in which the competing parties have entered into

numerous contracts with numerous parties for the provision of rented advertising space,3 an

allegation that one of those contracts provides below-cost prices for services is insufficient to

allege predatory pricing. An inference of predation will only arise when a defendant engages in

economically irrational activity; and when that activity principally involves pricing, it is

economically irrational only if it hurts a defendant’s bottom line. See Phillip Areeda and Donald


       2
          Because we determine that Astra Media did not sufficiently plead this element of
predatory pricing, there is no need for us to consider the sufficiency of the complaint with
respect to the claim’s second element—recoupment.
       3
          The complaint demonstrates throughout that both Clear Channel and Astra Media
contracted with various different advertisers to rent space on their taxi-tops. See, e.g., Compl. ¶
81 ( “[a] number of valid contracts also existed between Astra Media and advertisers who agreed
to advertise on Astra Media rooftops.”); id ¶ 3 (stating that Clear Channel “at all times relevant
herein” had over 70 percent of the taxi-top market).

                                                  4
F. Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88

Harv. L. Rev. 697, 703 (1975) (sacrifice of short-run profits is a necessary condition of

predation); see also Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 55

(2d Cir. 1979) (Friendly, J.) (requiring evidence that a limited newspaper giveaway would

produce at least a short-term loss for defendant’s operations taken as a whole). With this in

mind, “[c]ourts have been wary of plaintiffs’ attempts to prove predatory pricing through

evidence of a low price charged for a single product out of many, or to a single customer.”

Morgan v. Ponder, 892 F.2d 1355, 1362 (8th Cir. 1989) (citing, inter alia, Buffalo Courier-

Express). Here, the complaint provides no reasonable inference that a company as large as Clear

Channel would suffer a meaningful loss from underpricing a single contract. The district court,

therefore, correctly dismissed the predatory pricing claim.

       The presence of this federal Sherman Act claim in the complaint was the sole alleged

basis for removing the case from state court. See Def.’s Notice of Removal, April 20, 2009, Dkt.

No. 1. Without that claim or the federal discrimination claim that was also dismissed, Astra

Media’s action would not have been removable to federal court. See 28 U.S.C. § 1441(b).

Having dismissed Astra Media’s Sherman Act and federal discrimination claims, the district

court was left with only the state-law claims, which were “otherwise non-removable” to federal

court, and the district court had discretion to “remand” to the state court “all matters in which

State law predominate[d].” Id. § 1441(c); see also § 1367(c)(3) (district court has discretion to

exercise supplemental jurisdiction over related state-law claims when it “has dismissed all claims

over which it has original jurisdiction”). In this case, the district court should have exercised its

discretion to remand.


                                                  5
       Although sections 1441(c) and 1367(c) are permissive rather than mandatory, we have

generally held that where all the federal claims have been dismissed at a relatively early stage,

the district court should decline to exercise supplemental jurisdiction over pendent state-law

claims. This has been especially true where the state law governing these claims is unsettled.

See, e.g., Giordano v. City of New York, 274 F.3d 740, 754-55 (2d Cir. 2001); Oliveira v. Frito-

Lay, Inc., 251 F.3d 56, 64 (2d Cir. 2001); Fay v. South Colonie Central School District, 802 F.2d

21, 34 (2d Cir. 1986); see also Valencia v. Lee, 316 F.3d 299, 306-08 (2d Cir. 2003)

(reversing—after the case had been tried—the district court's exercise of supplemental

jurisdiction over “unsettled questions of New York law” where the plaintiffs had conceded

before the case was ready for trial, and before any substantive motions had been filed, that “they

had no viable federal claims”).

       Here, it appears that Astra Media's remaining claims raise unsettled questions of state

law. Perhaps most importantly, there is a question as to whether the New York courts have

adopted—or would adopt—the Iqbal pleading standard, under which several of Astra Media's

claims were dismissed by the district court. In addition, the contours of New York law

governing claims of tortious interference with contract are not entirely clear. Compare Guard-

Life Corp. v. S. Parker Hardware Manufacturing Corp., 50 N.Y.2d 183, 194 (1980) (stating that

recovery is possible on a tortious interference with contract claim even in the absence of breach

of contract), with Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996) (citing

Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120 (1956), which predates Guard-Life, for the

proposition that breach of contract is an essential element of the claim). The New York courts




                                                 6
are better suited to resolve these issues than either this Court or the district court. See United

Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

       Accordingly, the portion of the district court’s judgment dismissing Astra Media’s

Sherman Act and federal discrimination claims are AFFIRMED, but the remainder of the

judgment is VACATED and the state-law claims are REMANDED to the district court for entry

of an order remanding the state-law claims to the state court from which the action was removed.

                                                       FOR THE COURT:

                                                       Catherine O’Hagan Wolfe, Clerk




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