Verizon to Court: Dismiss Midwest’s ‘Vexatious and Futile’ Lawsuit
Midwest Cabinet Suppliers’ response to Verizon’s motion to dismiss Midwest’s first amended antitrust complaint “tellingly fails to respond to the merits of the motion and makes no effort to demonstrate the viability of the claims asserted” in the amended complaint, said Verizon’s reply Friday (docket 3:22-cv-00493) in U.S. District Court for Western Kentucky in Louisville.
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Midwest alleges it was excluded through an unlawful “tying agreement” from a list of Verizon-approved store fixture vendors, terminating Midwest’s supply relationship with reseller Cellular Sales of Knoxville, resulting in “significant damage” to Midwest’s sales and bottom line (see 2212130006). Verizon said Midwest’s claims are without merit.
Midwest’s eight-page opposition “makes no effort to respond to the arguments raised in Verizon’s 24-page motion to dismiss, which outlined in detail the specific elements Midwest failed to allege to support its antitrust and interference claims,” said Verizon. Midwest’s opposition instead “is based on misstatements of the applicable federal pleading standard, judicial notice, and supplemental jurisdiction and relies on procedural complaints of no import,” it said.
There’s a “twofold” effect of Midwest’s failure to address Verizon’s arguments, said the carrier. First, Midwest waives its opposition to Verizon’s arguments, “thereby forfeiting its claims so that dismissal on the merits is appropriate,” it said. Second, the absence of “applicable counterargument” in the opposition bares Midwest’s “vexatious litigation tactics” and supports the appropriateness of awarding Verizon sanctions, it said.
Midwest has been on notice of Verizon’s arguments since October, “and been informed thrice as to the claims’ shortcomings,” said Verizon. Yet after an opportunity to amend and two extensions of time requested on the eve of its response deadlines, “Midwest fails to respond to arguments on the merits,” it said.
Its failure makes clear that Midwest’s amended complaint “does not -- and cannot -- state a claim as a matter of law,” said Verizon. The court “should acknowledge Midwest’s forfeiture, dismiss all of its claims with prejudice, and award Verizon fees and costs for responding to this vexatious and futile litigation,” it said.