Private Sporting-Competition Governance Is Not State Action Absent Compulsion/Nexus/Public Function, and Arbitration Rights May Be Waived by Extensive Federal Litigation

1. Introduction

In Gerding v. American Kennel Club (2d Cir. Dec. 29, 2025) (summary order), pro se plaintiff Alexander Gerding sued the American Kennel Club (“AKC”), AKC executives Doug Ljungren and Dennis B. Sprung, and dog-dock-diving organization NADD (DLM Capital, LLC, formerly known as North American Diving Dogs, LLC) along with Debra Markwardt. Gerding claimed the defendants, in administering dog dock diving competitions, violated his constitutional rights and other federal and New York state laws.

The key appellate issues were whether the Second Amended Complaint plausibly stated (i) a constitutional claim under 42 U.S.C. § 1983 against private entities, (ii) a Sherman Act § 2 monopolization claim, and (iii) New York-law claims for fraud, libel/defamation, and breach of contract. Gerding also challenged the denial of further leave to amend, the dismissal as moot of his motion to compel arbitration and for a stay, and the denial of his postjudgment motion under Rule 59(e).

The Second Circuit affirmed in full, substantially adopting the district court’s reasoning and adding that—even assuming an arbitration agreement existed—Gerding waived arbitration by extensively litigating in federal court.

2. Summary of the Opinion

Rule 12(b)(6) dismissal affirmed: The complaint failed to state any claim upon which relief could be granted.
§ 1983: Defendants were not plausibly alleged to have acted “under color of state law.”
Antitrust monopolization (Sherman Act § 2): Plaintiff failed to plausibly allege monopoly power in a properly defined relevant market.
New York law claims: Fraud allegations were vague/conclusory; libel/defamation lacked a false statement; breach of contract lacked a plausible agreement.
Procedural/postjudgment: Denial of further leave to amend was proper as futile; arbitration motion properly deemed moot after dismissal; Rule 59(e) denial affirmed.
Additional holding: Even if an arbitration agreement existed, plaintiff waived arbitration through extensive litigation.

Important limitation: This decision is a Second Circuit “summary order” and expressly “DO[ES] NOT HAVE PRECEDENTIAL EFFECT,” though it may be cited as permitted by rule.

3. Analysis

3.1. Precedents Cited

A. Standards of review and treatment of pro se filings

Altimeo Asset Mgmt. v. Qihoo 360 Tech. Co., 19 F.4th 145 (2d Cir. 2021) (quoting Henry v. County of Nassau, 6 F.4th 324 (2d Cir. 2021)): supplied the familiar de novo standard for reviewing a Rule 12(b)(6) dismissal—accepting factual allegations as true and drawing reasonable inferences in plaintiff’s favor. The court used these cases to frame review, emphasizing that even under a favorable inferential posture, plausibility was lacking.
Kravitz v. Purcell, 87 F.4th 111 (2d Cir. 2023) (quoting Publicola v. Lomenzo, 54 F.4th 108 (2d Cir. 2022)): reinforced liberal construction of pro se submissions. The citation underscores that the dismissal was not based on technical pleading defects alone; rather, even the “strongest arguments” suggested by the papers did not yield a viable claim.

B. Appellate jurisdiction despite technical defects in pro se notice

Bacon v. Phelps, 961 F.3d 533 (2d Cir. 2020) (quoting Grune v. Coughlin, 913 F.2d 41 (2d Cir. 1990)): supported construing Gerding’s appellate brief as a timely notice of appeal from the reconsideration order. The court applied a functional approach: if the pro se filing evinces intent to appeal and the appellee is not prejudiced or misled, “technical deficiencies” do not defeat jurisdiction. This is an access-to-review principle frequently used to avoid forfeiture by unrepresented litigants.

C. § 1983 “state action” doctrine for private parties

Kam Shing Chan v. City of New York, 1 F.3d 96 (2d Cir. 1993): provided the baseline requirement that § 1983 liability attaches only when a defendant acts “under color of state law.”
McGugan v. Aldana-Bernier, 752 F.3d 224 (2d Cir. 2014) (quoting Hogan v. A.O. Fox Mem'l Hosp., 346 F. App'x 627 (2d Cir. 2009)): articulated the three principal pathways for attributing private conduct to the state: compulsion, close nexus, or public function.
Hollander v. Copacabana Nightclub, 624 F.3d 30 (2d Cir. 2010): reiterated that “nominally private entities” are treated as state actors only when their conduct satisfies one of the same three tests. The panel used these cases to show that the legal tests are settled and that Gerding’s allegations did not plausibly fit any of them.

D. Sherman Act § 2 monopolization pleading

Irvin Indus., Inc. v. Goodyear Aerospace Corp., 974 F.2d 241 (2d Cir. 1992): supplied the three elements of monopolization—(1) monopoly power in a relevant market, (2) anticompetitive conduct, and (3) causal antitrust injury. The court relied on this framework to affirm dismissal based on the first element: failure plausibly to allege monopoly power in a relevant market.

E. New York-law tort and contract standards

Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14 (2d Cir. 2015) (quoting Small v. Lorillard Tobacco Co., 94 N.Y.2d 43 (1999)): supplied the five elements of fraud under New York law. The panel used this citation to support the conclusion that conclusory accusations—without specific misrepresentations, scienter, reliance, and resulting injury—do not state a claim.
Meloff v. N.Y. Life Ins. Co., 240 F.3d 138 (2d Cir. 2001): set out the five elements of libel under New York law. The panel affirmed dismissal because the complaint did not identify a false statement about Gerding, which is a core requirement.
Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y., 375 F.3d 168 (2d Cir. 2004) (quoting Harsco Corp. v. Segui, 91 F.3d 337 (2d Cir. 1996)): provided the four elements of breach of contract under New York law. The panel affirmed dismissal because Gerding did not plausibly allege the existence of an agreement— the threshold element.

F. Arbitration waiver by litigation conduct

La. Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156 (2d Cir. 2010): supported the panel’s additional conclusion that even if an arbitration agreement existed, Gerding waived any right to arbitrate by “extensively litigating” in federal court. The citation signals a conduct-based waiver doctrine: a party cannot substantially invoke the judicial process and later insist on arbitration when doing so would be inconsistent with earlier litigation behavior.

G. Rule 59(e) and limits of reconsideration

Analytical Survs., Inc. v. Tonga Partners, L.P., 684 F.3d 36 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136 (2d Cir. 1998)): framed Rule 59(e) as not permitting relitigation, new theories, or a “second bite at the apple.” The panel used this principle to affirm the denial of postjudgment relief.

3.2. Legal Reasoning

A. Why § 1983 failed: no plausible “state action”

The court treated the § 1983 claim as a gatekeeping question: without state action, constitutional-rights claims against private actors cannot proceed under § 1983. Applying the three established tests (compulsion, close nexus, public function), the panel concluded that administering dog dock diving competitions—setting rules, enforcing eligibility decisions, maintaining rankings, or issuing discipline—looks like private governance of a private activity, not state-compelled conduct, not conduct closely intertwined with the state, and not a “traditionally exclusive” state function. The failure was not a close call at the pleading stage: the complaint lacked allegations that would connect defendants’ competition decisions to state authority in any of the recognized doctrinal pathways.

B. Why monopolization failed: no relevant market/monopoly power allegations

Under Irvin Indus., Inc. v. Goodyear Aerospace Corp., a plaintiff must plead monopoly power “in the relevant market.” The panel affirmed dismissal because Gerding did not plausibly allege that AKC or NADD possessed monopoly power in a properly defined market. In practice, this typically requires (at minimum) a coherent market definition (product and geographic scope) and facts supporting market power (e.g., shares, barriers to entry, durable control over prices or output). The summary order indicates that Gerding’s allegations did not reach that basic plausibility threshold.

C. Why the New York fraud/defamation/contract claims failed

The court treated the state-law claims element-by-element:

Fraud: Invoking Pasternack v. Lab'y Corp. of Am. Holdings and Small v. Lorillard Tobacco Co., the panel agreed that the fraud allegations were “vague and conclusory,” i.e., lacking specific material misrepresentations, reliance, and resulting injury.
Libel/defamation: Under Meloff v. N.Y. Life Ins. Co., falsity is essential. The panel affirmed dismissal because Gerding did not allege that defendants made a false statement about him.
Breach of contract: Under Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co. of N.Y. (quoting Harsco Corp. v. Segui), the existence of an agreement is foundational. The panel affirmed dismissal because Gerding failed to plausibly allege that he had any agreement with defendants.

D. Post-dismissal motions: amendment, arbitration, and reconsideration

Leave to amend (futility): The panel affirmed the denial of further amendment as futile, signaling that the deficiencies were not merely about better wording, but about the absence of viable legal theories or missing foundational facts (state action, market power, agreement, falsity).
Arbitration motion dismissed as moot; waiver noted: Once all claims were dismissed, the motion to compel arbitration and for a stay was moot. Separately, the court added that “even if an applicable arbitration agreement exists,” waiver applied under La. Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc. because Gerding “extensively litigat[ed] his claims in federal court.” This is a practical warning: arbitration is a right that must be timely invoked.
Rule 59(e): Citing Analytical Survs., Inc. v. Tonga Partners, L.P. and Sequa Corp. v. GBJ Corp., the panel found no abuse of discretion in denying reconsideration, emphasizing that Rule 59(e) cannot be used to reargue or repackage rejected contentions.

3.3. Impact

Although nonprecedential, the summary order is a useful roadmap for recurring disputes where disappointed participants in private competitive activities attempt to constitutionalize or antitrust-frame governance decisions:

Reinforces the high barrier to converting private association conduct into “state action” under the compulsion/nexus/public-function framework. Private rulemaking and adjudication in sports/hobby competitions generally remains private, absent unusual governmental involvement.
Signals strictness on antitrust pleading in “niche activity” contexts: plaintiffs must do more than allege dominance; they must plead a coherent market and facts showing monopoly power within it.
Highlights arbitration strategy risks: parties who litigate extensively may lose the ability to compel arbitration later, even if an agreement exists.
Confirms constrained scope of Rule 59(e): reconsideration is not an avenue to retry the case after dismissal.

4. Complex Concepts Simplified

“Under color of state law” / “state action” (§ 1983): Constitutional claims under § 1983 usually require the defendant to be the government or acting like the government. Private entities can count only in narrow situations—when the state forces their conduct (compulsion), when the state is tightly intertwined with the conduct (close nexus), or when the private entity performs a function only the state traditionally performs (public function).
“Relevant market” and “monopoly power” (Sherman Act § 2): Antitrust law does not ask whether an organization is influential; it asks whether it has durable power in a properly defined market (what products/services compete, and where), and whether it used that power in anticompetitive ways that caused antitrust injury.
Rule 12(b)(6): A motion to dismiss tests whether the complaint’s factual allegations—assumed true—state a plausible legal claim, not whether the plaintiff might later find evidence.
Futility of amendment: Courts may deny further amendments when new pleading would not cure the legal defects (for example, when the problem is the absence of state action, not just missing details).
Waiver of arbitration: A party can lose the right to arbitrate by acting inconsistently with arbitration—such as pursuing extensive litigation first—because arbitration is meant to be an alternative to court.
Rule 59(e): A postjudgment motion to alter/amend the judgment is not for reargument; it is reserved for narrow circumstances and cannot be used as a do-over.

5. Conclusion

Gerding v. American Kennel Club affirms a comprehensive dismissal of wide-ranging claims arising from private administration of dog dock diving competitions. Applying established doctrine, the Second Circuit held that private competition organizers were not plausibly alleged to be state actors for § 1983 purposes, that monopolization was not plausibly pleaded without a relevant market and monopoly power, and that New York-law claims failed on essential elements (specific fraud allegations, falsity for defamation, and an actual agreement for contract).

Procedurally, the decision underscores that repeated amendments can be denied as futile, reconsideration is not a “second bite,” and arbitration—if it exists—must be invoked early, because extensive litigation may waive the right to arbitrate.