UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JAY GROSS, et al. , Plaintiffs,

v. STEPHEN C. WRIGHT, et al. , Defendants. Case No. 15-cv-01166 (CRC)

MEMORANDUM OPINION As “a new community for a new so vereign,” our nation’s capital gave architectural expression to the budding ideals of American constitutional gov ernment. James Sterling Young, The Washington Community, 1800– 1828, at 1 (1966). But while Pi erre L’Enfant’s blueprint for the city has endured, romanticism has yielded to reality: The District is a burgeoning metropolitan center striving to compete in the global economy. Like most cities, it endeavors to preserve its historical, cultu ral, and aesthetic heritage while adapting to the ever-changing demands of urban living. An entir e chapter of the D.C. Code is therefore dedicated to reconciling economic growth with t he protection of historic pro perties. Defendants in this case, under th e auspices of historical prese rvation, petitioned the local government to halt a property de veloper’s planned renovation of a rowhouse in Washington’s upward-trending Petworth neighbo rhood. The developer insists t hat two of these Defendants, who themselves profit from real -estate dealings and property im provements, are fair-weather conservationists exploiting lo cal laws to drive him out of busi ness. He brings several commonlaw tort claims that one would e xpect to find in a local develo pment dispute. But he has also (literally) made a federal case out of this largely interperson al feud by including a claim under the Sherman Antitrust Act, 15 U.S.C. § 1, contending that Defen dants’ actions have2 unreasonably restrained trade i n the market for renovation prop erties in Washington, D.C. Because the Sherman Act protects “competition, not competitors, ” Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962), an d Plaintiffs have not plaus ibly pled a marketwide anticompetitive injury, the Court will grant Defendants’ motionto dismiss Plaintiffs’ Sherman Act claim. And because the case is still at an early stage and involves questions of D.C. law that are best resolved by the local cou rts, the Court will decline t o exercise supplemental jurisdiction over Plaintiffs’ common-law claims.
I. Background Plaintiff Jay Gross is a license d real-estate agent who works t o “renovate, remodel, modernize and improve dilapidate d properties in t he District of Columbia.” Pls.’ First Am. Compl. (“Compl.”) ¶ 26. 1 In November 2014, Gross purchased a single-family rowhouse at 7 Grant Circle in the Petworth neighborhood of Washington, D.C. w ith the intention of renovating it as a matter of right under th e District’s then-existing zoni ng regulations. The planned renovation involved dividing the ho me into three units, which r equired “raising the roof a small amount.” Id. ¶ 29. By this time, Gross also owned a nearby ro whouse at 15 Grant Circle, as well as other investment property elsewhere in the city. Gross ’s properties are held by LLCs corresponding to the address of each property, eight of which a re Plaintiffs in this case. 2

1 For purposes of deciding the pr esent motions, the Court accep ts as true the Complaint’s factual allegations. See Talent i v. Clinton, 102 F.3d 573, 575 (D.C. C ir. 1996). Defendants, of course, dispute Mr. Gross’s version of events.

2 The eight co-Plaintiffs are 11th Property Group, LLC; 7 GrantCircle NW LLC; 14 Grant Circle NW LLC; 15 Grant Circle NW LLC; 1524 Ogden St. NW LLC; 4 511 Iowa Ave. NW LLC; 1201 Kenyon St. NW LLC; and 3223 11th St. NW LLC. Each of them lists Gross’s address as its principal place of business. Gross did not acqu ire the property at 14 Grant Circle until April 2015.3 Defendants Stephen Wright and Tho mas Woodruff reside at 6 Grant Circle, which shares a wall with Gross’s property at 7 Grant Circle. Wright is an a rchitect and the managing partner of the Washington, D.C. office of Leo A Daly Company, an “archi tecture, planning, engineering, and interior design firm” that Gr oss has also named as a Defend ant in this action. Id. ¶ 20. According to the Complaint, Wri ght and Leo A Daly together “des ign, remodel, modernize and improve buildings in the Distri ct,” thereby “compet[ing] direct ly with the Plaintiffs’ business of buying properties [and] improvi ng the structures.” Id. ¶ 33. Defendant Woodruff is a real-estate agent, partner, and principal of t he D.C.-based real-estate fir m Central Properties, LLC, another Defendant in this case. Woodruf f and his employer are also all eged to “compete directly with Mr. Gross, a licensed real est ate agent and landlord, by buying , selling, and renting residential properties throughout the District.” Id. ¶ 35. While the main protagonists i n this case own neighboring rowhou ses, relations between them have been anything but neighb orly. Tensions flared in Dec ember 2014, when Gross began renovating the unit at 7 Grant Circ le. Gross contends that Wri ght and Woodruff had already “gut renovated” their own property by adding a second dwelling unit, id. ¶ 31, thereby exemplifying Wright’s “personal mantra: ‘I have little tolerance for people who hold onto the status quo. Change is neither good nor bad—it’ s inevitable,’” id. ¶ 1. Wri ght nonetheless verbally “berat[ed]” Gross and “insult[ed ] [his] plans for 7 Grant Circl e.” Id. ¶ 40. He purportedly attempted to “threaten and intimidate” Gross into abandoning hi s project, or at least to obtain Gross’s building plans in order to “investigate ways to obstruc t the improvements.” Id. The reason, according to Gro ss? Wright believed that Gross was “in truding on his pool of renovation projects,” and Woodruff similarl y concluded that Gross was “int ruding upon the commissions in4 his turf by purchasing directly fro m homeowners” and “competing in the residential rental market.” Id. ¶ 2.
A. Defendants’ Successful Histori c-District Application for 4–33 G rant Circle According to Gross, Wright and Woodruff jointly devised a multi -pronged strategy to “snuff out Plaintiffs’ competing business by freezing permittin g and renovation at all of Plaintiffs’ property all over D .C.” Id. He contends that Wrig ht and Woodruff knew that the D.C. Zoning Commission would soon d ecide whether to amend the D istrict’s zoning regulations to begin requiring permits to conv ert buildings like 7 Grant Ci rcle into three-unit structures. In the meantime, they endeavored t o prevent Gross from altering hi s properties at 7 and 15 Grant Circle by petitioning D.C.’s Histor ic Preservatio n Office (“HPO ”) to declare 4–33 Grant Circle a historic district. 3 In early January 2015, according to Gross, Wright and Woodruff initiated a “surreptitious campaign to foment animosity and resistance” to Gross’s renovat ions among Grant Circle residents and members of the local Advisory Neighborhood Counci l (“ANC”). Id. ¶ 46. They convened an ANC meeting at which they made “false and disparagi ng” claims about Gross and his projects. Id. ¶ 47. Gross clai ms that neither he nor the owner of 16 Grant Circle (another property undergoing alterations) was invited. Later that month , Wright emailed an HPO employee to explain that he was “ fearful and furious” about Gro ss’s work in Grant Circle. Id. ¶ 48. Gross contends that Wrightthen requested an in-person m eeting “to learn what we can do to slow the permitting process.” Id. Five days later, Wright and Woodruff met with three D.C.

3 The mayor’s office must issue apermit before the exterior of any building falling within a historic district may be a ltered. D.C. Code Ch. 11, § 6-1105(a ).5 Office of Planning employees, whe re they again allegedly “made false claims about Plaintiffs and their work.” Id. ¶ 49. On February 13, 2015, Wright and Woodruff submitted an applicat ion to D.C.’s Historic Preservation Review Board (“HP RB”) to designate the set of prop erties situated at 4–33 Grant Circle as a historic district . The application was authored by Defendants Oscar Beisert, an advocate for historical preserva tion who lent his expertise to Wright and Woodruff, and Off Boundary Preservation Brigade ( “Off Boundary”), Beisert’s nonpr ofit entity. Beisert and Off Boundary “specialize in maki ng applications . . . to designate certain real properties as historic districts and/or historic la ndmarks.” Id. ¶ 21. Gross alleges that Defendants gerrymandered their historic-district ap plication to “a small portion of the periph ery of Grant Circle” for the sole purpose of “obstruct[ing] Plainti ffs’ projects in that area.” Id. ¶¶ 51–52. Next, according to Gross, Wright a nd Woodruff “orchestrat[ed] an exaggerated and false sense of unanimity” among Grant Circle residents. Id. ¶ 54. A t an informal neighborhood meeting on February 23—of which ne ither Gross nor the pastor of an affected church had been notified—two D.C. Office of Planni ng employees highlighted the merits of the city’s historicalpreservation processes, as th ey had been recruited to do. The local ANC then met on March 11 to deliberate on Defendants’ hist oric-district application. Af ter Wright, Woodru ff, and Beisert allegedly “drum[med] up support” among attendees by “making fal se representations about Plaintiffs and disparaging their projects,” the ANC voted to ex press its support for the application. Id. ¶ 56. On April 2, the HPRB held a publ ic hearing on Defendants’ histo ric-district application. Wright warned that Gross was e ngaged in “predatory development, ” and both Wright and Beisert are said to have exaggerated t he level of support that the appl ication had received among6 neighborhood residents. Id. ¶¶ 65–66. According “great weight ” to the ANC’s nonbinding recommendation, the HPRB formall y granted Defendants’ applicati on to designate 4–33 Grant Circle as a historic distric t. Id. ¶ 67. External alterations to these propertie s would thereafter require prior governmental approv al; Gross could no longer expa nd 7 and 15 Grant Circle as a matter of right, regardless of w hat generally applicable zoning regulations might permit.
B. Defendants’ Interim Historic- Landmark Applications for 7 and 16 Grant Circle Gross also contends that Defenda nts implemented a more immediat e means of stifling development in Grant Circle. In February 2015, before the HPRB approved their historic-district application, they filed histori c-landmark applications for 7 an d 16 Grant Circle. U nder local law, no structure for which a landm ark application is pending may be altered without prior mayoral approval. D.C. Code Ch. 11, §§ 6- 1102(6)(B), 6-1105(a). So De fendants’ landmark applications temporarily halted matter-of-ri ght improvements to both propert ies—which Gross and the owner of 16 Grant Circle were prepari ng to undertake—until the histor ic district’s approval did so permanently. Gross maintains that Defendant s did not actually intend for the ir landmark applications to succeed: They knew that 16 Grant Cir cle was “neither architect urally nor cultura lly significant” and “did not merit a landmar k designation.” Compl. ¶ 73. The same was true of Gross’s property at 7 Grant Circle, give n its status as “a ubiquitous a nd entirely indis tinct rowhouse.” Id. ¶ 76. Even before Defendants file d these two historic-landmark applications, Gross alleges, D.C. government officials had told the m that their efforts were “des perate” and “a stretch.” Id. ¶ 74. Beisert responded, “Well, how much time will this nomination bu y me?” Id. Defendants’ landmark applications rendere d the owners of 7 and 16 Grant Cir cle “unable to . . . continue their work at their properties.” Id. ¶ 77.7 The HPRB held a public hearing on t he 16 Grant Circle applicati on on March 26, 2015. In advance of the hearing, the H PO recommended that Defendants’ application be denied; at the hearing itself, an Off ice of Planning employee testified that 1 6 Grant Circle was “not an outlier in either Petworth or the cit y.” Id. ¶ 86. At the close of di scussion, the Board unanimously denied the application. This action left little hope that Defe ndants’ historic-landmark application for 7 Grant Circle would be appr oved. Yet they failed to withdraw it until afte r the surrounding historic district had been fina lized, at which time the zoning regulations’ matter-of-right regime ceased to govern 4–33 Grant Circle. Even so, the HPO released the report it would have submitted to the HPRB, recommending that the 7 Grant Circle app lication be denied: “The landmark application claims too gr eat an architectural signific ance for this single building— oddly without nominating its atta ched twin, 6 Grant Circle, whi ch shares much of its history and character.” Id. ¶ 90. Under the c over of D.C.’s historical-pr eservation laws, according to Gross, Defendants thus “accomplished their real goal of . . . freez[in g] all progress toward permitting at [7 Grant Circle].” Id. ¶ 91.
C. Defendants’ Other Efforts to Obs truct Plaintiffs’ Businesses For the third prong of Defendant s’ “attack on Mr. Gross and his competing businesses,” Gross alleges that they embarked on a campaign of deception to thwart his plans on Grant Circle and elsewhere. Id. ¶ 92. The histor ic-district application’s acceptance did not entirely preclude Gross from renovating his Grant C ircle properties, merely from doing so without prior governmental approval. Wright and Woodruff therefore allegedlyset out to block or rescind the issuance of permits for Gross’s properties. Gross obtained permission to alt er 7 Grant Circle soon after th e historic district’s designation. The Complaint quote s an email from Woodruff regis tering his disapproval to two8 Office of Planning employees: “ Looks like they are going to is sue the permits for 7 Grant Circle . . . . We may be the first histor ic district in history to ask for the designation to be removed. (cause there is really no point when 20% of the property in a d istrict is already ‘compromised’).” Id. ¶ 71. According to Gross, W right and Woodruff responded by hiring an engineering company to “draft a report fabr icating alleged shortcomings” wi th Gross’s work at 7 Grant Circle, and to “manufacture purpor ted architectural flaws in [h is] plans.” Id. ¶ 98. Armed with this document, the two men met w ith a D.C. Department of Consum er and Regulatory Affairs (“DCRA”) employee, charging that Gross and his LLCs “conduct th eir business illegally and violate D.C. building law.” Id. ¶ 99. Wright and Woodruff, Gr oss claims, also allegedly “misrepresented” to the DCRA t hat he had failed to share with t hem his underpinning plans for 7 Grant Circle. Id. ¶ 102. Their efforts succeeded—the DCRA rev oked Gross’s building permit for 7 Grant Circle on May 4. According to Gross, Wright and Wo odruff soon “expanded their pl an to properties owned by Plaintiffs throughout the Dis trict.” Id. ¶ 112. Wright ema iled two DCRA employees on May 11, attaching the engineering repor t he and Woodruff had commis sioned. In the body of the email, he insisted that [t]he architectural review rev eals a continuing pattern by this developer of misleading DCRA reviewers to achieve his ends. . . . [W]e stron gly suggest that the other properties which are under permit review, are under const ruction, or have recently been redeveloped by Mr. Gross and his design team be r eviewed for possible incomplete or misleading drawings. Id. ¶ 101. Similarly, Wright and Wo odruff contacted the neighb ors of three of Gross’s other properties—1201 Kenyon Street NW, 4511 Iowa Avenue NW, and 1524 Ogden Street NW—and allegedly “made false claims” that Gross and his LLCs “do not p erform legal work.” Id. ¶¶ 107, 109, 111. After these overtures , neighbors of 1201 Kenyon Stre et and 4511 Iowa Avenue9 “began complaining to Mr. Gross about development” and “attempt ed to obstruct [his] work there.” Id. ¶¶ 108, 110. The Complai nt does not state whether any development has actually been impeded outside Grant Circle as a result of Defendants’ ac tions. Gross lastly alleges that Woodruf f attempted to interfere dire ctly with Gross’s purchase of 14 Grant Circle from its prev ious owner because Woodruff “wa nted the commission for himself and his company” and de sired to “obstruct Mr. Gross and his businesses from obtaining another project.” Id. ¶ 95. O n April 26, Woodruff emailed 14 Grant Circle’s owner to urge him—unsuccessfully—to renege on the contract he had concluded w ith Gross and “either sell the house to him or to another buyer through him.” Id. ¶ 96.
D. Plaintiffs’ Claims Gross and his LLC co-Plaintiffs filed their First Amended Compl aint on September 21, 2015. They have sued Wright, Woodr uff, Leo A Daly Company, Cen tral Properties, 4 Beisert, and Off Boundary Preservation Bri gade for their alleged “system atic disruption of the Plaintiffs’ business . . . all over the Dist rict of Columbia.” Id. ¶ 1. P laintiffs’ Complaint includes six counts: one federal-law claim and five D.C.-law claims. Becaus e not all Plaintiffs are geographically diverse with all D efendants, Plaintiffs request that the Court exercise supplemental jurisdiction over their D.C.-law claims. Plaintiffs’ lone federal claim a lleges a violation of the Sherm an Antitrust Act, 15 U.S.C. § 1, by Wright, Woodruff, Leo A Dal y, and Central Properties. Their D.C. claims consist of tortious interference with pros pective economic advantage, abus e of process, malicious

4 Plaintiffs seek to hold both empl oyers liable under principle s of respondeat superior , alleging that when Wright and Woodruff enga ged in the key communications described above, they held themselves out as employees of their firms or used their work e mail addresses and signature lines.10 prosecution, and civil conspirac y by all defendants, and trespa ss by Woodruff, stemming from his alleged entry onto the prope rties of 7 Grant Circle and 322 3 11th Street NW in June and August 2015. Defendants have coll ectively filed four motions t o dismiss. They contend that socalled Noerr-Pennington immunity s hields them from liability fo r petitioning local governmental bodies to establish historic di stricts and landmarks, and that Plaintiffs have failed to state a claim under the Sherman Act or D.C. law regardless. The Court held ahearing on the motions on February 5, 2016.
II. Standard of Review On a Rule 12(b)(6) motion for fa ilure to state a claim, a court must assess whether the complaint alleges sufficient facts that, accepted as true, stat e an entitlement to relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when it “a llows the court to draw the reason able inference that the defendant is liable for the misconduct alle ged.” Ashcroft v. Iqbal, 556 U.S . 662, 678 (2009). This plausibility standard is less stringent than a “probability req uirement” would be. Id. (quoting Twombly, 550 U.S. at 557). But “[w]h ere a complaint pleads fac ts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line betw een possibility and plausibility of entitlement to relief.’” Id. ( quoting Twombly, 550 U.S. at 557 ). A complaint’s factual allegations must be construed “i n the light most favorable to t he plaintiff.” Hammel v. Marsh USA Inc., 79 F. Supp. 3d 234, 238 (D.D.C. 2015). Yet “the tene t that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quo ting Iqbal, 556 U.S. at 678) (internal quotation marks omitted). A complaint that presents merely “labels and conclusions” or11 “a formulaic recitation of the elements of a cause of action wi ll not do.” Twombly, 550 U.S. at
555. On a motion to dismiss under Rule 12(b)(6), a court may not con sider “matters outside the pleadings” without converti ng the motion to one for summary judgment under Rule 56. This Court has previously recognized t hat documents “‘incorporated b y reference in the complaint, or documents upon which the plaintiff’s complaint necessarily reli es,’” should not be considered to be “outside the pleadings.” H icklin v. McDonald, 110 F. Supp. 3d 16, 18–19 (D.D.C. 2015) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp . 2d 117, 119 (D.D.C. 2011)). A court may also consider “docum ents in the public record of wh ich the court may take judicial notice” without treating a 12(b )(6) motion as one for summary j udgment. Tefera v. OneWest Bank, FSB, 19 F. Supp. 3d 215, 220 (D.D.C. 2014) (citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)).
III. Analysis The Court will address Plaintiffs’ Sherman Act claim first, si nce it provides the sole basis for original federal jurisdiction. 5 The Court will grant Defendants’ motion to dismiss this claim , because Plaintiffs have not adequa tely alleged that Defendants adversely affected competition in an entire market (or intende d to do so). The remaining claims would be adjudicated entirely under D.C. law. As explained below, the Court will exercise it s discretion to dismiss Plaintiffs’ D.C.-law claims without prejudice.

5 Defendants’ Noerr-Pennington defense cannot provide a hook fo r federal jurisdiction. In the absence of complete diversity, “ federal jurisd iction generally exists ‘only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.’” Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 ( 2002) (emphasis omitted) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)).12 A. Plaintiffs’ Sherman Act Claim Under § 1 of the Sherman Act, “[e ]very contract, combination inthe form of trust or otherwise, or conspir acy, in restraint of trade or commerce amo ng the several States, or with foreign nations, is declare d to be illegal.” 15 U.S.C. § 1. D espite (or rather, because of) this provision’s extraordinary breadth, the Supreme Court “has never ‘taken a literal approach to [its] language.’” Leegin Creative Le ather Prods., Inc. v. PSKS, Inc. , 551 U.S. 877, 885 (2007) (alteration in orig inal) (quoting Texac o Inc. v. Dagher, 547 U. S. 1, 5 (2006)). Instead, the Court has “long recognized that Congre ss intended to outlaw only unre asonable restraints.” State Oil Co. v. Khan, 522 U.S. 3, 10 (1997). To state a claim under § 1 of the S herman Act, a plaintiff must allege “(1) that defendants entered into some agreement for concerted activity (2) that either did or was intended to unreasonably restrict trade in the relevant market, which (3) a ffects interstate commerce.” Sky Angel U.S., LLC v. Nat’l Cab le Satellite Corp., 33 F. Supp. 3d 14, 19 (D.D.C. 2014) (quoting Asa Accugrade, Inc. v. Am. Numismatic Ass’n, 370 F. Supp. 2d 21 3, 215 (D.D.C. 2005)). The Clayton Act creates an associated cause of action, permitting “ any person who shall be injured in his business or property by reas on of anything forbidden in the antitrust laws [to] sue therefor.” 15 U.S.C. § 15(a). For a plainti ff to enjoy “antitrust standin g” under the Clayton Act, then, its injury must be “of the type the antitrust laws were intended to prevent” and “flow[] from that which makes defendants’ acts un lawful.” Oxbow Carbon & Mineral s LLC v. Union Pac. R.R. Co., 926 F. Supp. 2d 36, 42 (D.D.C. 2013) (quoting Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 862 (D.C. Cir. 2008)). Importantly, “the antitrust law s ‘were enacted for the protecti on of competition , not competitors .’” Waka LLC v. D.C. Ki ckball, 517 F. Supp. 2d 245, 249 (D.D.C . 2007) (quoting Brown Shoe, 370 U.S. at 320). The She rman Act forbids “practic es that make markets less13 competitive and thereby hurt the people transacting with the fi rms in those markets.” Muzlou Television Network, Inc. v. Nat’l Broad. Co., 603 F. Supp. 677, 683 (D.D.C. 1984). Accordingly, a civil antitrust plaintiff bears the burden of pr oving that the defendant’s action targeted, or “had an actual adverse effect on[,] competition as a whole in the relevant market.” Asa Accugrade, 370 F. Supp. 2d at 215. “ [A]bsent injury to com petition, injury to plaintiff as a competitor will not satisfy the pleading requirement.” D.C. Ki ckball, 517 F. Supp. 2d at 249 (quoting Muzlou Television N etwork, 603 F. Supp. at 684). A pl aintiff cannot federalize its private economic injuries “me rely by dressing them up in the la nguage of antitrust.” Dial a Car, Inc. v. Transp., Inc., 884 F. Supp. 584, 588 (D.D.C. 1995). El evating “routine disputes between business competitors” in this way would “trivializ[e] the [Sher man] Act because of its too ready availability.” Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 543 (2d Cir. 1993). Courts apply two standards in de termining whether a practice un reasonably restrains trade in violation of § 1. Some re straints “are deemed unlawfu l per se ,” Leegin, 551 U.S. at 886 (quoting Khan, 522 U.S. at 10), meaning that they “would always or almost always tend to restrict competition [in a mar ket] and decrease output,” id. (q uoting Bus. Elec. Corp. v. Sharp Elec. Corp., 485 U.S. 717, 723 (1988)). T his analytical frame is “invoked only i n a limited class of . . . carefully demarcated cat egories.” Capital Imaging, 99 6 F.2d at 542–43. 6 The second test, the so-called rule of reason, is the “accepted standard for tes ting whether a prac tice restrains trade in violation of § 1.” Leeg in, 551 U.S. at 885; see also Asa Accugrade, 370 F. Supp. 2d at 215 (stating that the rule-of-r eason standard is “presumptively favored”). Under this approach,

6 Per se violations of § 1 include “horizo ntal and vertical price fixin g, division of a market into territories, certai n tying arrangements, and some group boycott s involving concerted refusals to deal with a competitor.” Capital Imaging, 996 F.2d at 542–43 ( citations omitted).14 “the factfinder weighs all of the circumstances” in deciding wh ether a practice unreasonably restrains competition. Leegin, 551 U.S. at 885 (quoting Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977)).
1. Defining the Relevant Market Until a market’s parameters are reasonably well defined, a cour t cannot know whether a defendant has unreasonably restr icted trade in that market. Fo r this reason, “it is difficult or impossible to determine the plau sibility of an antitrust claim if the relevant market is untenably defined.” Suture Express, I nc. v. Cardinal Health 200, LLC, 96 3 F. Supp. 2d 1212, 1222 (D. Kan. 2013). And “[i]t is the plaint iff’s burden to define the relevant market.” Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 560 (8th Cir. 199 8). The Court will take up this issue first so that it may fairly assess Plaintiffs’ allegation s of a marketwide injury to competition. The purpose of delineating a relev ant market is “to identify th e market participants and competitive pressures that restrain an individual firm’s abilit y to raise prices or restrict output.” Geneva Pharm. Tech. Corp. v. Barr Labs., Inc., 386 F.3d 485, 49 6 (2d Cir. 2004). Very broadly speaking, a market’s definition “ rests on a determination of av ailable substitutes.” Rothgery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 218 ( D.C. Cir. 1986). A market is defined with reference to a particular product or service and a geographic area, E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 441 (4th Cir . 2011), meaning that “if prices were appreciably raised or volum e appreciably curtailed for the product within a given area, while demand held constant, supply from other sources could notbe expected to enter promptly enough and in large enough amounts t o restore the old price and volume,” Rothgery Storage, 792 F.2d at 218 (quoting Lawrence A . Sullivan, Antitrust § 12, at 4 1 (1977)).15 A product market refers to “all ‘commodities reasonably interch angeable by consumers for the same purposes.’” Meijer, Inc., 572 F. Supp. 2d at 56. In other words, “either [good or service] would work effectively,” even though “there may be som e degree of preference for the one over the other.” Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 437 (3d Cir. 1997) (quoting Allen-Myland, Inc. v . Int’l Bus. Mach. Corp., 33 F.3d 194, 206 (3d Cir. 1994)). The ultimate inquiry is “whether the amount of actual or potent ial substitution” of one product or service for another “acted t o constrain . . . pricing behavior. ” Meijer, Inc., 572 F. Supp. 2d at 58. A geographic market is defined a s the “area within which the de fendant’s customers who are affected by the challenged practi ce can practicably turn to alt ernative supplies if the defendant were to raise its prices or res trict its output.” E.I. du Pont de Nemours, 637 F.3d at 411. Yet not all products are portable—market s involving goods or services “ that can only be offered from a particular location . . . will often be defined by how far cons umers are willing to travel.” Cobb Theatres III, LLC v. AMC Ent m’t Holdings, Inc., 101 F. Supp. 3d 1319, 1336 (N.D. Ga. 2015). For a Sherman Act § 1 claim to survive a motion to dismiss, the proposed market definition “must be plausible. ” Sky Angel U.S., LLC v. Nat’l C able Satellite Corp., 947 F. Supp. 2d 88, 103 (D.D.C. 2013) (quoting Todd v. Exxon Corp., 275 F.3d 191, 200 (2d Cir. 2001)). Although courts do not require “a n economically technical recit ation of the market boundaries at the pleading stage,” id., an all eged market “‘must bear a ratio nal relation to the methodology courts prescribe to define a marke t for antitrust purposes,’” i d. (quoting Todd, 275 F.3d at 200). Courts have warned that “failure to define the market by refere nce to the reasonable interchangeability . . . of servi ces is [a] valid ground for di smissal at the Rule 12(b)(6) stage.” Id. (citing Queen City Pizza, 124 F.3d at 436–37).16 Plaintiffs’ characterizations of the relevant market for antitr ust purposes have been imprecise and inconsistent. The y initially alleged that Defend ants’ actions have adversely affected “competition in the market of D.C. real estate investm ent and property improvement.” Compl. ¶ 113. In another variation, Plaintiffs describe the re levant market as “propertyimprovement and/or rentals in the Petworth neighborhood and the District of Columbia.” Id. ¶ 125; see also id. ¶ 128 (limiting “the relevant [geographic] markets” to “the Petworth neighborhood and the District of Columbia”). When offered an o pportunity to clarify these characterizations at the moti ons hearing, Plaintiffs explained that “[t]he antitrust count is focused on the D.C. [geographic] market,” Hr’g of Feb. 5, 2016, Prelim. Tr. 4, and that the relevant product market is limited to the “ brownstone market[s] both for . . . residential and office entities,” id. The latter de lineation is found nowhere in the Complaint, and the Complaint altogether fails to justify its proposed market contours throug h reference to concepts of reasonable interchangeability and potential substitution. A number of Plaintiffs’ proposed m arket definitions are simply too broad to plausibly describe a single market. “Real e state investment,” for instan ce, includes an almost unlimited range of activities related to t ransactions in real property in all its various forms. The same is true for “property improvement .” Such indiscriminate monikers are unhelpful i n delineating a meaningful product market for f ederal antitrust purposes. At t he other end of the spectrum, a geographic market limited to the Petworth neighborhood, or a pr oduct market limited only to brownstones, would be “unreasonably and implausibly narrow,” Al len v. Dairy Farmers of Am., Inc., 748 F. Supp. 2d 323, 328 (D. Vt. 2010), given the sheer u nlikelihood that relatively higher real-estate prices or rents in P etworth (or for brownstones) wo uld deter reasonable consumers from considering other D.C. ne ighborhoods or building types.17 In defining the relevant markets , the Court will eschew Plainti ffs’ various formulations and be guided by its reading of the C omplaint as a whole. Mr. Gross is describe d as being in the business of purchasing or inves ting in properties, renovating t hem, and then offering them for either sale or rent. This activ ity encompasses at least four p roduct markets: (1) the market for purchasing suitable property for r enovation; (2) the market for the sale of subsequently renovated property; (3) the rental market for renovated property; and (4) the market for brokerage services in connection with transactions i n the foregoing properties. T he Court finds each of these product markets—which, for ease of reading, it will refer to co llectively as the “renovationproperty market”—to be a plausibl e one at the 12(b)(6) stage, drawing all inferences in favor of Mr. Gross. As for the geographi c scope of these markets, even without allegations concerning the availability of substitute properties and brokers, the Cour t finds that it is at least plausible that Washington, D.C. is the approxima te “geographic scale on which competition actually occurs” with respect to them. S ky Angel, 947 F. Supp. 2d at 104.
2. Selecting an Analytical Framework Plaintiffs have made no allegatio ns regarding Plaintiffs’ or De fendants’ market power, presumably because, in their view, Defendants’ purportedly anti competitive activity was unlawful per se . This position appears to conflate two distinct concepts—that certain practices always violate § 1, and that it is sometimes appropriate to lif t the immunity shielding conduct that would otherwise be categoric ally protected by the First Am endment. The latter concept flows from the doctrine of Noerr-Pennington immunity, which pro vides that “[w]hen ‘a person petitions the government’ in good fai th, ‘the First Amendment p rohibits any sanction on that action.’” Venetian Casino R esort v. NLRB, 793 F.3d 85, 89 (D.C . Cir. 2015) (quoting Nader v. Dem. Nat’l Comm., 567 F.3d 692, 696 (D.C. Cir. 2009)). But suc h immunity does not apply18 when efforts to influence governmental action are “a mere sham to cover what is actually nothing more than an attempt to i nterfere directly with the bus iness relationships of a competitor.” E. R.R. President s Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961). Plaintiffs cite California Moto r Transport Co. v. Trucking Unli mited, 404 U.S. 508 (1972), for the proposition that “s ham petitioning is a ‘classi c example’ of antitrust conduct,” Pl.’s Opp’n Def. Wright & Woodr uff’s Mot. Dismiss 28; see also Prelim. Tr. 9 (claiming that sham petitioning “ha[s] been recognized by the Supreme Court as [a] per se ” violation of § 1). In that case, a group of highway car riers in California alleged ly conspired to “monopolize trade and commerce in the transporta tion of goods” by instituting pro ceedings to defeat their competitors’ applications to acquire or maintain operating righ ts. Cal. Motor, 404 U.S. at 509. The defendants sought to “put[] their competitors, including pl aintiff, out of business,” id. at 511, through a “massive, concerted, and purposeful” effort to “build [] up [their] empire,” id. at 515. After reiterating that use of adm inistrative and judicial proce sses “does not necessarily give [one] immunity from the antitrust laws,” id. at 513, the C ourt held that “the above-quoted allegations come within the ‘sh am’ exception in the Noerr case, ” id. at 516. The Supreme Court has since reaffirmed that Calif ornia Motor’s holding was limite d to the issue of NoerrPennington immunity: “[W]e held that the complaint showed a sh am not entitled to immunity” under the facts alleged. Prof’l Real Estate Investors v. Colum bia Pictures Indus., Inc., 508 U.S. 49, 58 (1993). To conclude that certa in practices are “not imm unized” means only that they

“ may result in antitrust violati ons.” Cal. Motor, 404 U.S. at 513 (emphasis added). The range of “narrow, carefully demarcated” per se antitrust violations, C apital Imaging, 996 F.2d at 543, is not broadened each time otherwis e-protected activity becomes su bject to the Sherman Act’s strictures. As the Supreme Court has explained, “[p]roof of a sham merely deprives the19 defendant of immunity; it does not relieve the plaintiff of the obligation to establish all other elements of his claim.” Prof’l Real Estate, 508 U.S. at 61. A ccordingly, Plaintiffs have not alleged a per se Sherman Act violation, and the rul e of reason—the “accepted st andard for testing whether a practice rest rains trade in violation of § 1, ” Leegin, 551 U.S. at 885—applies to their Sherman Act claim. 7
3. The Complaint’s Insufficiency U nder the Rule-of-Reason Standard Based on the facts alleged, Plain tiffs have not put forth a pla usible claim that Defendants either intended to restrain, or actually restrained, trade in t he renovation-property market in Washington, D.C. as a whole. Aga in, “absent injury to competit ion, injury to plaintiff as a competitor will not satisfy the pleading requirement.” D.C. Ki ckball, 517 F. Supp. 2d at 249 (quoting Muzlou Television N etwork, 603 F. Supp. at 684). As d escribed in the Background section of this opinion, the Com plaint’s overarching theme is t hat “Plaintiffs have been harmed . . . in the form of lost business opportunity” and “inability to realize the full value of their properties.” Compl. ¶ 126. Simila r characterizations of Defen dants’ intentions and actions abound. See id. ¶¶ 2, 6 (claiming tha t “Woodruff and Wright fo rmulated a plan to snuff out Plaintiffs’ competing busine ss by . . . attack[ing] Plaintiffs’ projects all over t he District”); id. ¶ 92 (describing Defendants’ “attack on Mr. Gross and his compe ting businesses”); id. ¶ 101 (“Wright . . . attempted to obstruct Mr. Gross and Plaintiffs’ other projects throughout the District.”); id. ¶ 112 (“Defenda nts . . . expanded their plan t o properties owned by Plaintiffs throughout the District.”); id. ¶124 (summarizi ng Defendants’ e fforts “to repress Mr. Gross and

7 Even if the alleged actions in C alifornia Motor had been held to constitute a per se violation of § 1, Defendants in this case hard ly “conspired to monopolize tr ade and commerce” in a particular market, Cal. Motor, 404 U.S. a t 509, nor did they effectively “ bec[o]me the regulators” of the issuance of permits and licenses, id. at 511.20 Plaintiffs’ business” outside Gr ant Circle); id. ¶ 159 (allegin g that Defendants “entered into a confederation . . . [to] unlawfully restrai n and interfere with Plaintiffs’ business practice”). Plaintiffs do allege that Defe ndants “both restricted, and demo nstrated an intent to restrict, trade in the market of property improvement and/or re ntals in . . . the District of Columbia.” Id. ¶ 125; see also i d. ¶ 113 (asserting that Defen dants’ “conduct ha[d] . . . [a] destructive effect on c ompetition in the ma rket of D.C. real es tate investment and property improvement”). But these are “no more than [legal] conclusions . . . not entitled to the assumption of truth.” Iqbal , 556 U.S. at 679. Again, a compla int that merely offers “labels and conclusions” or “a formulaic re citation of the elements of a cause of action” does not state a claim. Twombly, 550 U.S. at 555. When pressed at the motions hear ing to identify t he nature of t he harm allegedly inflicted by Defendants’ actions, Plainti ffs’ counsel acknowledged that “ it’s simply going out and eliminating a competitor . . . . The antitrust injury is taking out and destroying a competitor”— “they’re attacking us wherever we ’re starting a business.” Hr’ g of Feb. 5, 2016, Prelim. Tr. 6, 11, 15. The case law is clear, howev er, that an absence of fac tual allegations tending to show that the “market as a whole has suffered an anti-competitive in jury” is “fatal to . . . Sherman Act claims.” Asa Accugrade , 370 F. Supp. 2d at 216. In Asa Accugr ade, for example, the plaintiff alleged that the defendants had “diminish[ed] competition in th e coin grading and authentication marketplace by removing . . . [plainti ff’s] market share and al lowing . . . [one competitor] to increase its market share,” and t hat “Defendants’ [antitrust] v iolations . . . have and continue to harm competition.” 370 F. Supp. at 216 (second and third alter ations in original). The Court held that these two “conclusor y statements” could not survive aRule 12(b)(6) challenge because they were wholly “devoid of factual support.” Id.21 Here, too, Plaintiffs have “merely allege[d] in bare and conclu sory terms the language of the antitrust statute.” I d. at 218. They offer no allegations regarding their or Defendants’ respective market shares or the e xtent to which Gross’s elimina tion from the market would enable Defendants to initiate m arketwide price increases. Nor could they plausibly do so. Competition among property developers in Washington, D.C., and the agents who broker transactions in them, would s eem fierce. Even without knowing Mr. Gross’s precise market share, common sense suggests th at his elimination from the mark et would not meaningfully affect the available supply of renovation properties or brokers in the District. And if that is so, then the Defendants’ allege d conduct could not possibly (let al one plausibly) cause an increase in the price of such properties or t hat of brokerage services to p otential buyers and renters. Put simply, this is not a federal ant itrust case. The Court will t herefore dismiss Count I of Plaintiffs’ Complaint with prejudice. 8
B. Whether to Exercise Supplemental Jurisdiction Five D.C.-law claims, but no feder al claims, remain in this cas e after the dismissal of Plaintiffs’ Sherman Act count. S ince the parties are not compl etely diverse, Plaintiffs may not proceed in federal court in the absence of the federal claim un less the Court exercises its discretion to assert supplementa l jurisdiction over Plaintiffs’ common-law claims. Under 28 U.S.C. § 1367(a), when a fed eral district court enjoys either federal -question or diversity jurisdiction over any c laim, it generally “ha[s] supp lemental jurisdiction over all other

8 For the same reasons, the Cour t finds that any attempt to ame nd the Complaint to state a valid Sherman Act § 1 claim would be f utile. Cf. Mead v. City First Bank of DC, N.A., 256 F.R.D. 6, 7 (D.D.C. 2009) (“Undue delay, undue prejudice to the defendant , or futility of . . . proposed amendments are factors that may warrant denying leave to amend. ” (citing Fed. R. Civ. P. 15(a); Atchinson v. Dist. of Columbia, 73 F.3d 418, 425 (D.C. Cir. 199 6))).22 claims that are so related to [ that] claim[] . . . that they fo rm part of the same case or controversy under Article III of the Unite d States Constitution.” Nonethel ess, a district court “may decline to exercise supplemental jurisdic tion over a claim” if the court “ has dismissed all claims over which it has original jurisdiction,” as occurred here. Id. § 1367(c) (3). This is because “pendent jurisdiction is a doc trine of discretion , not of plaintiff’s ri ght.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). It is well established that “in t he usual case in which all fed eral-law claims are dismissed before trial, the balance of fact ors to be considered”—includin g “judicial economy, convenience, fairness, and comity—will point t oward declining to exercise ju risdiction over the remaining state-law claims.” She koyan v. Sibley Int’l, 409 F.3d 414, 424 (D.C. Cir. 2005) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)) (internal quotation marks omitted). This is especially true when “[the] case has not pro gressed in federal court past Defendant’s Motion to Dismiss.” Jones v. D.C. Water & Sewer Au th., 922 F. Supp. 2d 37, 43 (D.D.C. 2013); see also Tonkovi ch v. Kan. Bd. of Regents, 254 F .3d 941, 945 (10th Cir. 2001) (upholding a district court’s dism issal of state-law claims und er § 1367(c)(3), “given the relative lack of pretrial proceedings—inc luding a total absence of disco very”). Additiona lly, “[n]eedless decisions of state law should be avoided both as a matter of co mity” and to provide the parties “a surer-footed reading of applicab le law.” Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995) (quoting Gibbs, 383 U.S. at 726). After all, “primary responsibility for deve loping and applying state law r ests with the state courts.” Montero v. AGCO Corp., 19 F. Supp. 2d 1143, 1147 (E.D. Cal. 199 8). Here, the factors to be considered counsel dismissal of the rem aining D.C.-law claims. This Memorandum Opinion represents the Court’s first engagement with the issues in this case;23 the Court has not even set a tim eline for discovery. There als o appears to be an unresolved issue of D.C. law bearing on whether Plai ntiffs have stated a claim f or abuse of process. See Tri-State Hosp. Supply Corp. v. United States, Civ. No. 00-01463 (HHK), 2 007 WL 2007587, at *10 (D.D.C. July 6, 2007) (“It is not cle ar whether, under District of Columbia law, an administrative proceeding can be considered a ‘process’ for purposes of an abu se of process claim.”). The Court expects that resolving Plaintiffs’ remaining claims will involve more than rote application of existing precedents in other respects, as well. For these r easons, the Court will decline to exercise supplemental jurisdic tion over Plaintiffs’ D.C.-law cl aims. It will dismiss Counts II through VI of the Complaint wit hout prejudice, allowing Plainti ffs to refile in the applicable local court should they choose to do so.
IV. Conclusion For the foregoing reasons, the Court will grant Defendants’ Mot ions to Dismiss all counts of Plaintiffs’ Complaint. C ount I will be dismissed with preju dice, and Counts II through VI will be dismissed without prejudice. A separate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge Date: May 13, 2016