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March 31, 1995

MCI Telecommunications Corporation, Plaintiff,
Graphnet, Inc., Defendant.

The opinion of the court was delivered by: DEBEVOISE

 DEBEVOISE, Senior District Judge.

 Plaintiff MCI Telecommunications Corporation ("MCIT") moves to dismiss counterclaims raised by defendant Graphnet, Inc. ("Graphnet"). For the reasons which follow, the motion will be granted in part and denied in part.


 Graphnet is a licensed telecommunications carrier providing services including domestic and international telex transmission, specialized messaging, electronic mail, data communications and facilities management. MCIT is a licensed telecommunications carrier providing domestic and international voice transmission services. MCIT is a wholly-owned subsidiary of MCI Communications Corporation ("MCI").

 MCIT instituted this action against Graphnet in an attempt to recover approximately $ 720,000.00 for voice transmission services provided to Graphnet. Graphnet filed a counterclaim against MCIT alleging antitrust and contract claims.

 Graphnet's antitrust claims implicate the relationship between MCIT and another wholly-owned subsidiary of MCI, MCI International, Inc. ("MCII"). MCII is a direct competitor of Graphnet in the domestic and international markets for telex and facsimile transmission services. MCII and Graphnet were both customers of MCIT, which provided them with voice transmission services.

 Graphnet alleges that MCIT aided MCII in its efforts to monopolize the domestic and international telex and facsimile markets and drive Graphnet out of business. Graphnet alleges that MCIT aided, abetted and participated in MCII's efforts by withdrawing certain discounts previously given to Graphnet for voice transmission services, and by charging lower rates to MCII than Graphnet in an effort to harm Graphnet while subsidizing MCII's alleged predatory pricing practices. Graphnet alleges that those acts constitute a violation of § 2 of the Sherman Act, 15 U.S.C. § 2. It also alleges contract actions for fraud in the inducement and breach of contract.


 Pursuant to Rule 12(b)(6), a claim embodied in a complaint or counterclaim must be dismissed for failure to state a claim if the opposing party demonstrates "beyond a doubt that [the claimant] can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628, 634 (3d Cir. 1989); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). All allegations set forth in the claim must be accepted as true, see Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972), and all reasonable inferences must be drawn in the claimant's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). On a 12(b)(6) motion, the district court is limited to the facts alleged in the complaint or counterclaim, not those raised for the first time by counsel in its legal memorandum. Hauptmann v. Wilentz, 570 F. Supp. 351, 364 (D.N.J. 1983), aff'd without opinion, 770 F.2d 1070 (3d Cir. 1985), cert. denied, 474 U.S. 1103 (1986); Seevers v. Arkenberg, 726 F. Supp. 1159, 1165 (S.D. Ind. 1989) ("This court is not at liberty, however, to consider allegations which do not appear in the complaint, but which are averred only in legal briefs.").

 The Third Circuit, however, has held that a "court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss," without converting the motion into a motion for summary judgment, "if the plaintiff's claims are based on the document." Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 126 L. Ed. 2d 655, 114 S. Ct. 687 (1994).


 MCIT argues that Graphnet's antitrust allegations cannot state a claim under current legal standards, and that its contract claims are preempted under the Communications Act or precluded by the associated filed rate doctrine.

 1. The Antitrust Count

 As its first point, MCIT argues that there is no explicit or implied cause of action under the Sherman Act for aiding and abetting a violation of the statute. The crux of the parties' disagreement over this issue derives from differing interpretations of the United States Supreme Court's recent decision in Central Bank of Denver v. First Interstate Bank of Denver, U.S. , 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994).

 In Central Bank, the Court noted that "when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant's violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors." Id. at 1450-51 (citing Electronic Laboratory Supply Co. v. Cullen, 977 F.2d 798, 805-806 (3d Cir. 1992)). The Court pointed out that Congress has taken a "statute-by-statute approach to civil aiding and abetting liability" and has included specific provisions imposing such liability in many statutes including the Internal Revenue Code, Commodity Exchange Act, National Bank Act and others. Id. at 1451.

 Graphnet responds that because Central Bank's holding related to § 10(b) of the Securities Exchange Act of 1934 ("SEA"), its reasoning cannot be applied to a question arising under the Sherman Act. However, the Court's analysis with regard to the general question of implied aiding and abetting liability was not limited merely to the provisions of the SEA. Even if reasoning employed by the Supreme Court is broader than the scope of its specific holding and therefore constitutes dicta, courts "consider and respect Supreme Court dicta as well as holdings because the Supreme Court hears relatively few cases and frequently ...

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