OWEN PANNER, Senior District Judge
Defendant moves to "dismiss" the paragraphs in the Third Amended Complaint that seek divestiture as a remedy on the ground that the amendment is untimely. I construe that as a motion to strike. In the alternative, Defendant moves to dismiss or for judgment on the pleadings on the ground that Plaintiff failed to allege adequate grounds for divestiture. I deny both motions.
Discussion
The request for divestiture was a centerpiece of the companion case, Westwood Lumber Co. v. Weyerhaeuser, CV 03-551-PA. After that case settled, the plaintiff in Washington Alder added an identical prayer for divestiture to its Complaint.
Although the prior pleadings in Washington Alder did not expressly seek divestiture, Plaintiff did request over $30 million in damages plus "appropriate injunctive relief." Divestiture is a form of "injunctive relief" authorized by the statute permitting a private party to seek redress for violation of the antitrust laws. California v. American Store Companies, 495 U.S. 271, 280-82 (1990). The Second Amended Complaint also sought "appropriate temporary restraining orders, preliminary and permanent injunctive relief to prohibit Weyerhaeuser from continuing to use the illegal log buying practices that enable it to control most of the alder sawlog market." ¶ 46.
Assuming divestiture is a new remedy, as Defendant contends, FRCP 15(a) provides that "leave to amend shall be freely given when justice so requires." Defendant's claim of unfair prejudice is unpersuasive. Defendant was all set to litigate this issue inWestwood before that case settled just a few weeks ago. It is essentially the same issue here, involving the same markets, alder mills, course of conduct, and antitrust allegations.
A Plaintiff's particular circumstances do assume greater relevance when divestiture is sought by a private party and not the United States. See American Store Companies, 495 U.S. at 295-96. Nevertheless, the underlying facts regarding the divestiture issue are the same whether that remedy is sought by Westwood Lumber Company or by Washington Alder. Defendant conducted discovery on, and is prepared to offer evidence regarding, the condition of the alder industry in the Pacific Northwest, the competitive climate, barriers to entry or lack thereof, and other relevant factors. During discovery, Defendant also explored, in depth, the individual circumstances regarding each of the plaintiff mills in these antitrust actions.
Defendant notes that I previously limited most discovery and testimony to the period ending December 31, 2002. However, I also indicated that divestiture would be a separate phase of the case. Trial would be to the court, and involve additional evidence and arguments not appropriate for the first phase of the case. I acknowledged that post-2002 data would likely be relevant in any divestiture proceeding, and gave Defendant leave to renew its discovery requests at that time. Opinion and Order of Dec. 9, 2003 in Westwood Lumber. I adhere to that position now. If Defendant wishes to conduct additional discovery concerning a divestiture remedy, it may request leave to do so if a divestiture proceeding becomes necessary. That discovery is premature now. The jury might return a verdict for Defendant in the first phase of the case, thereby mooting this issue.
I am not persuaded by Defendant's contention that it is unfair to add a new remedy on the eve of trial. The Third Amended Complaint was filed almost two months before trial. Furthermore, in this action alone, Defendant is represented by three major law firms and ten attorneys of record. I have great confidence in Defendant's ability to respond to this issue, which is virtually identical to the issue Defendant already spent months preparing to litigate in Westwood. In any event, divestiture will not be addressed during the upcoming trial. It would be covered (if necessary) in a subsequent proceeding that has not even been scheduled yet. Defendant will have sufficient time to prepare for any such proceeding.
Arguably, Plaintiff should have expressly pled this remedy earlier. However, Westwood was set for trial first. Since the divestiture issue would have been resolved in that case, there was little point in complicating matters by seeking the identical remedy in Washington Alder. Once Westwood settled, Plaintiff promptly sought to add that remedy to the present action. I conclude that Plaintiff did not unduly delay, nor was Defendant prejudiced thereby.
Finally, Defendant moves to dismiss, or for judgment on the pleadings, on the ground that the facts alleged do not support a divestiture remedy. At this point in the proceedings, the allegations are sufficient, particularly when coupled with Plaintiff's request to take notice of the verdict inConfederated Tribes of Siletz Indians v. Weyerhaeuser, CV 00-1693-PA. I defer a final decision on whether to hold a divestiture hearing until after I hear all the evidence at trial and the jury returns its verdict on the liability phase of this case.
Conclusion
Defendant's Motions to Dismiss (# 108-1) portions of the Third Amended Complaint, or in the alternative for Judgment on the Pleadings (# 108-2), are DENIED.
IT IS SO ORDERED.