Auraria Student Housing at Regency, LLC v. Campus Village Apartments, LLC

FILED
United States Court of Appeals
Tenth Circuit
January 4, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
AURARIA STUDENT HOUSING AT
THE REGENCY, LLC, a Colorado
limited liability company,
Plaintiff - Appellee,
v. No. 11-1569
CAMPUS VILLAGE APARTMENTS, (D.C. No. 1:10-CV-02516-WJM-KLM)
LLC, a Delaware limited liability (D. Colorado)
company,
Defendant - Appellant.
_______________________
UNITED STATES OF AMERICA;
FEDERAL TRADE COMMISSION,
Amici Curiae.
ORDER
Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
I. Introduction
Defendant-Appellant Campus Village Apartments, LLC (“Campus
Village”) appeals the denial of its motion to dismiss the complaint of Plaintiff-
Appellee Auraria Student Housing at the Regency, LLC (“Regency”). Regency’s
complaint alleges Campus Village conspired with the University of Colorado,
Denver (the “University”) to monopolize the provision of student housing in
violation of Section 2 of the Sherman Act. See 15 U.S.C. § 2. Regency moved to
dismiss Campus Village’s appeal, arguing this court lacks subject matter
jurisdiction because the district court’s denial of Campus Village’s motion to
dismiss is not a final order under 28 U.S.C. § 1291. Campus Village argues in
response that this court has jurisdiction under the collateral order doctrine set
forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Having
considered the parties’ briefing and argument on this issue, this court grants the
motion to dismiss.
II. Background
Regency operates an apartment complex approximately two miles from the
University’s downtown Denver campus. Campus Village is a Delaware limited
liability company which operates an apartment complex (“Campus Village
Apartments”) located approximately one-half mile from the University’s campus.
Pursuant to an agreement between the University and Campus Village, most full-
time students are required to reside in the Campus Village Apartments for their
first two semesters of enrollment. Regency brought suit against Campus Village,
alleging the residency restriction amounted to an illegal conspiracy to monopolize
in violation of Section 2 of the Sherman Act. Campus Village moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6), arguing the agreement creating
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the residency restriction was authorized by a clearly articulated and affirmatively
expressed state policy to displace competition with regulation, and therefore was
not subject to the Sherman Act. See Town of Hallie v. City of Eu Claire, 471 U.S.
34, 38–40 (1985); Parker v. Brown, 317 U.S. 341, 350–51 (1943).
In Parker, the Supreme Court held the Sherman Act did not reach
anticompetitive activities conducted by a state or its officers or agents. 317 U.S.
at 350–51 (“We find nothing in the language of the Sherman Act or in its history
which suggests that its purpose was to restrain a state or its officers or agents
from activities directed by its legislature.”). The doctrine, later termed “Parker
immunity” or “state action immunity,” is also available to private parties in
certain circumstances. See Town of Hallie, 471 U.S. at 38–40; Cal. Retail Liquor
Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980); Zimomra v.
Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1498–1500 (10th Cir. 1997). This court
recently held that for anticompetitive conduct to be shielded from antitrust
liability by Parker immunity, the conduct must be “at least a foreseeable (if not
explicit) result of state legislation.” Kay Elec. Co-op v. City of Newkirk, 647 F.3d
1039, 1043 (10th Cir. 2011). The district court, applying Kay, concluded the
Colorado legislation Campus Village relied upon did not make the agreement
sufficiently foreseeable for Campus Village to be protected. It therefore denied
the motion to dismiss. This appeal followed.
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III. Discussion
This court’s jurisdiction is limited to appeals “from all final decisions of
the district courts of the United States.” 28 U.S.C. § 1291. “[A]n order denying
a motion to dismiss is not a final appealable order if it ensures that litigation will
continue in the District Court.” Yousef v. Reno, 254 F.3d 1214, 1217 (10th Cir.
2001) (quotation omitted). The Supreme Court, however, has identified a “small
class” of interlocutory orders that are subject to immediate review under § 1291.
Cohen, 337 U.S. at 546. Under this collateral order doctrine, for a non-final order
to be immediately appealable, it must “[1] conclusively determine the disputed
question, [2] resolve an important issue completely separate from the merits of
the action, and [3] be effectively unreviewable on appeal from a final judgment.”
Will v. Hallock, 546 U.S. 345, 349 (2006) (quotations omitted). 1 The Court has
clarified that the third condition is not satisfied merely by demonstrating
interlocutory review is necessary to avoid trial: “Those seeking immediate appeal
. . . naturally argue that any order denying a claim of right to prevail without trial
satisfies the third condition. But this generalization is too easy to be sound and,
if accepted, would leave the final order requirement of § 1291 in tatters.” Id. at
351. Thus, when determining whether an order is “effectively unreviewable”
1
The Supreme Court has repeatedly emphasized the “modest scope” of the
doctrine, thus far acknowledging only four types of orders which fall within its
purview: orders rejecting absolute immunity, qualified immunity, Eleventh
Amendment immunity, and double jeopardy claims. Will v. Hallock, 546 U.S.
345, 350 (2006).
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absent interlocutory review, “it is not mere avoidance of a trial, but avoidance of
a trial that would imperil a substantial public interest, that counts.” Id. at 353.
The circuits are split on the question whether the denial of Parker
immunity is effectively unreviewable on appeal from a final judgment. The
Fourth and Sixth Circuits have held it is not. See S.C. State Bd. of Dentistry v.
FTC, 455 F.3d 436, 444 (4th Cir. 2006); Huron Valley Hosp., Inc. v. City of
Pontiac, 792 F.2d 563, 567 (6th Cir. 1986). The Fifth and Eleventh Circuits have
held that it is. See Martin v. Mem’l Hosp., 86 F.3d 1391, 1397 (5th Cir. 1996);
Commuter Transp. Sys., Inc. v. Hillsborough Cnty. Aviation Auth., 801 F.2d 1286,
1289–90 (11th Cir. 1986). Those courts holding the denial of Parker immunity is
not immediately appealable have observed that, while denominated an
“immunity,” the doctrine is actually akin to a defense to a cause of action rather
than an entitlement to avoid suit altogether. Huron Valley, 792 F.2d at 567; see
also Kay, 647 F.3d at 1042 (“[T]he term ‘immunity’ may be a bit strong since the
Court held only that Congress hadn’t covered state action, not that it couldn’t.”).
As a result, no rights are irrevocably lost by delaying review until a final
judgment has been entered. Huron Valley, 792 F.2d at 567. Additionally, the
Fourth Circuit has suggested the interests vindicated by Parker immunity do not
fall within the narrow class of interests described in Will for which interlocutory
review is appropriate. S.C. State Bd. of Dentistry, 455 F.3d at 444 (“Simply put,
Parker construed a statute. It did not identify or articulate a constitutional or
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common law ‘right not to be tried.’ Parker, therefore, recognizes a ‘defense’
qualitatively different from the immunities described in Will, which focus on the
harms attendant to litigation itself.”).
By contrast, the Fifth and Eleventh Circuits have held Parker immunity is
more than a mere defense to liability and its denial is therefore subject to
immediate review. Martin, 86 F.3d at 1395–96; Commuter Transp. Sys., 801 F.2d
at 1289–90. These circuits have concluded Parker immunity protects important
dignitary and public interests which would be lost if a suit proceeded to trial. For
example, in Martin, the Fifth Circuit analogized Parker immunity to Eleventh
Amendment immunity insofar as each is designed “to prevent the indignity of
subjecting a State to the coercive process of judicial tribunals at the instance of
private parties, and to ensure that the States’ dignitary interests can be fully
vindicated.” Martin, 86 F.3d at 1295–96. (quotations, alteration, and citation
omitted). Additionally, the court noted Parker immunity, like qualified
immunity, allows public officials to perform their duties without fear of legal
consequences, including not only liability for money damages but also the
disruptions which are often attendant to civil litigation, such as pretrial discovery.
Id. at 1396; see also Phillip E. Areeda & Herbert Hovenkamp, Fundamentals of
Antitrust Law, § 2.04b, at 2-48 (4th ed. 2011) (“The Parker doctrine is designed
to be an immunity, not merely a defense that can be offered at trial.”)
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It is unnecessary to weigh in on the circuit split because this appeal
presents a different question: whether the denial of Parker immunity is
immediately appealable by private parties. On this question, the circuit split is
much less pronounced. Even the Fifth Circuit, which otherwise extends
interlocutory review to denials of Parker immunity, does not do so in cases
involving private parties. See Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287,
292 (5th Cir. 2000). Stressing the Supreme Court’s repeated admonitions that the
collateral order doctrine applies only to a narrow class of cases, the court in
Acoustic Systems concluded the justifications for affording immediate review of
the denial of Parker immunity to governmental entities are inapplicable to private
parties. Id. at 291–93. The court also noted that in the context of qualified
immunity, immediate appeal is available to governmental defendants but not
private parties. Id. at 294 (citing authority from the First, Seventh, and Eighth
Circuits); see also Weise v. Casper, 507 F.3d 1260, 1264 (10th Cir. 2007)
(holding court lacked jurisdiction to hear interlocutory appeal of denial of motion
to dismiss based on qualified immunity by defendants who were not public
officials). The Fifth Circuit indicated it was unaware of any decision extending
the collateral order doctrine to appeals by a private party claiming Parker
immunity. Acoustic Sys., 207 F.3d at 291.
Citing Praxair, Inc. v. Florida Power & Light Co., 64 F.3d 609, 611 (11th
Cir. 1995), Campus Village notes at least one other circuit has allowed
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interlocutory review in cases in which a private party asserts Parker immunity.
Praxair, however, is wholly devoid of any persuasive justification for its holding
in this regard. Instead, it summarily cites two Eleventh Circuit cases extending
Parker immunity to governmental entities without addressing whether the
reasoning in those cases also extends to private parties. See 64 F.3d at 611.
Since Acoustic Systems was decided, the Supreme Court has further emphasized
that the collateral order doctrine reaches only a narrow class of cases. Will, 546
U.S. at 350. This court is persuaded by the reasoning in Acoustic Systems and
declines to follow Praxair.
In Will, the Supreme Court noted that in every case in which it held the
collateral order doctrine justified interlocutory review “some particular value of a
high order was marshaled in support of the interest in avoiding trial.” Id. at 352.
Campus Village asserts just such a “value of a high order” with three illustrations,
none of which are persuasive. First, Campus Village argues the underlying
premise of Regency’s action is offensive to the dignitary interests of the state of
Colorado. In support of this argument Campus Village points to the complaint’s
allegations that it entered into an illegal conspiracy with the University and that
the University’s housing policy has “nothing whatever to do with attempting to
further the educational, mental, physical, or social development” of the
University’s students. Campus Village cites no authority for the proposition that
the mere inclusion of disquieting allegations in a complaint implicates the
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dignitary interests of a sovereign state. To the contrary, the Supreme Court has
indicated a state’s dignitary interests are offended when it is forced to defend its
actions as a defendant in federal court. See Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (“The very object and purpose
of the 11th Amendment were to prevent the indignity of subjecting a State to the
coercive process of judicial tribunals at the instance of private parties.” (quotation
omitted)); see also id. at 146 n.5 (“The Eleventh Amendment is concerned not
only with the States’ ability to withstand suit, but with their privilege not to be
sued.”). Thus, the denial of Parker immunity to a private party is not inherently
offensive to a state’s dignitary interests.
Second, Campus Village argues the real targets of Regency’s suit are the
University’s housing policy and the Colorado statutes, which it asserts constitute
an affirmative expression of state policy favoring the residency restriction. This
argument, however, presumes the correctness of Campus Village’s position on the
merits of its Parker immunity claim. But when determining whether a particular
claim satisfies the Cohen requirements,
we do not engage in an individualized jurisdictional inquiry. Rather,
our focus is on the entire category to which a claim belongs. As long
as the class of claims, taken as a whole, can be adequately vindicated
by other means, the chance that the litigation at hand might be
speeded, or a particular injustice averted, does not provide a basis for
jurisdiction under § 1291.
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Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605–06 (2009) (quotations,
alteration, and citation omitted). Campus Village’s second argument depends
upon precisely the kind of “individualized jurisdictional inquiry” specifically
deemed inappropriate in Mohawk Industries. It is therefore insufficient to justify
interlocutory review under the Cohen doctrine.
Finally, Campus Village argues the action brought by Regency will entail
“broad-reaching discovery” of a kind that is “peculiarly disruptive of effective
government.” Martin, 86 F.3d at 1396 (quotations omitted). Supporting this
argument, Campus Village points to Regency’s proposed scheduling order, which
identifies as witnesses sixteen University officials, including the University’s
Chancellor, three of its Vice-Chancellors, and its Provost. Campus Village
suggests the disruption to governmental functions imposed by such discovery is
not diminished simply because the government deponents are not named as
defendants. Cf. Filarsky v. Delia, 132 S. Ct. 1657, 1665–66 (2012) (extending
qualified immunity to private individuals acting on behalf of the government and
describing disruptive effects of suits against private parties performing
governmental functions). This argument, too, is dependent upon the individual
circumstances of the suit and fails to demonstrate that suits against private parties
claiming Parker exemption from antitrust liability under Parker will categorically
be sufficiently disruptive of governmental functions to justify interlocutory
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review. 2 See Mohawk Indus., 130 S. Ct. at 605–06. It does not justify invocation
of the collateral order doctrine for immediate review.
The Supreme Court has repeatedly cautioned against expansion of the
collateral order doctrine. See United States v. Wampler, 624 F.3d 1330, 1334
(10th Cir. 2010) (“In case after case in year after year, the Supreme Court has
issued increasingly emphatic instructions that the class of cases capable of
satisfying this ‘stringent’ test should be understood as ‘small,’ ‘modest,’ and
‘narrow.’”). Extending the collateral order doctrine to private parties contesting
an order denying Parker immunity does not serve a substantial public interest and
would constitute precisely the type of expansion the doctrine discourages. Will,
546 U.S. at 353.
IV. Conclusion
For the foregoing reasons, the order denying Campus Village’s motion to
dismiss is not an appealable final order under 28 U.S.C. § 1291. Campus
Village’s appeal is therefore dismissed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
2
A protective order is a more appropriate, orderly, and efficient means to
mitigate disruptions to non-parties. See Fed. R. Civ. P. 26(c)(1).
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