United States District Court, District of New Hampshire
Johnny Prescott & Son Oil Company, Inc.
Rymes Heating Oils, Inc. Opinion 2014 DNH 127
Biron L. Bedard, Esq.
Courtney H. G. Herz, Esq.
Robert H. Miller, Esq.
Landya McCafferty United States District Judge
Johnny Prescott & Son Oil Company, Inc. (“Prescott”) brings this suit against Rymes Heating Oils, Inc. (“Rymes”). Prescott seeks damages for violations of the New Hampshire Consumer Protection Act (“CPA”), N.H. Rev. Stat. Ann. (“RSA”) § 358-A (Count I), illegal restraint of trade under RSA § 356:2 (Count II), illegal monopoly under RSA § 356:3 (Count III), discriminatory pricing under the Clayton Act, 15 U.S.C. § 13 (Count IV), and illegal underselling under the Clayton Act, 15 U.S.C. § 13a (Count V). Rymes moves to dismiss Prescott’s complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted.
Standard of Review
To survive scrutiny under Rule 12(b)(6), a “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” González-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244, 247 (1st Cir.2012) (internal quotation marks omitted). When assessing a complaint under Rule 12(b)(6), the court must “accept as true all well-pled facts in the complaint and draw all reasonable inferences in favor of [the] plaintiff.” Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011). However, “some allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross ‘the line between the conclusory and the factual.’” Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 n.5 (2007)).
The facts in this section are drawn from the complaint. See Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013).
Prescott is a New Hampshire heating fuel distributor. Prescott purchases fuel from third party wholesalers and both sells fuel directly to customers and distributes fuel to smaller, local distributors. This practice is known as “through-putting.” One of Prescott’s through-putting buyers is Davis Fuels of Epsom, Inc. (“Davis”).
On approximately July 30, 2013, Tom Prescott, Prescott’s president, spoke with John Rymes, Rymes’s vice-president. During the conversation, Mr. Rymes told Mr. Prescott that he had heard there was “a new competitor in Epsom.” Compl. (doc. no. 1) 2 ¶ 9. Mr. Prescott explained that Davis was entering the propane business. Mr. Rymes expressed dismay at hearing this news because Davis had taken one of Rymes’s customers. Mr. Rymes also asked where Davis was getting his propane. Mr. Prescott responded that Davis would be buying it from Prescott. Mr. Rymes allegedly replied “game on Tom, I will be selling heating oil in the Concord-Bow area for cost so you won’t make any money this year.” Compl. (doc. no. 1) 3 ¶ 13.
On approximately August 10, 2013, Rymes began advertising heating oil at $2.99 per gallon cash price and $3.07 per gallon pre-buy price. Prescott alleges that this price was “approximately 50 cents below [the price of] any other distributors and below cost for dealers such as Prescott and Davis. Compl. (doc. no. 1) 3 ¶ 14. Based on Rymes’s alleged actions, Prescott brought the present suit.
The court addresses the counts out of order, beginning with the federal claims in Counts ...