Pharmarx Pharmaceutical, Inc. v. GE Healthcare, Inc. , 596 F. App'x 580 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 09 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHARMARX PHARMACEUTICAL, No. 13-55354
INC., a California corporation,
individually and on behalf of all others D.C. No. 2:12-cv-02594-MRP-
similarly situated, VBK
Plaintiff - Appellant,
MEMORANDUM*
v.
GE HEALTHCARE, INC., a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Mariana R. Pfaelzer, Senior District Judge, Presiding
Argued and Submitted February 11, 2015
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
Appellant PharmaRx Pharmaceutical, Inc. appeals the district court’s
dismissal of its class action complaint alleging violations of Sections 1 and 2 of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Sherman Act, 15 U.S.C. §§ 1-2. We review the district court’s decision de novo,
see Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167 (9th Cir. 2013), and we
affirm.
Appellant’s claim under Section 1 of the Sherman Act fails because it has
not pleaded “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). As in Twombly, Appellant’s
“bare” and “conclusory” allegation of an anticompetitive agreement is not entitled
to the presumption of truth. Id. at 565 n.10. Appellant is unable to cure this defect
by alleging that the anticompetitive agreement was a secret term of an otherwise
public agreement. See William O. Gilley Enters., Inc. v. Atl. Richfield Co., 588
F.3d 659, 665 (9th Cir. 2009) (per curiam). Even taking this as true, Appellant’s
complaint still “does not answer the basic questions” about the relevant
anticompetitive agreement: “who, did what, to whom (or with whom), where, and
when?” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1048 (9th Cir. 2008).
The remaining facts are insufficient to plausibly raise an inference of an
anticompetitive agreement. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011). Cardinal’s history of dealings with different manufacturers of a different
cardiac imaging agent provide some context for Appellant’s allegations, but do not
cross the line “between the factually neutral and the factually suggestive.”
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Twombly, 550 U.S. at 557 n.5. Appellant’s few specific examples of Appellee’s
refusal to deal with independent radiopharmacies all predate the alleged
anticompetitive agreement or “just as easily suggest rational, legal business
behavior by the defendants as they could suggest an illegal conspiracy.” Kendall,
518 F.3d at 1049. Such limited and ambiguous allegations are insufficient to
“nudge[] [Appellant’s] claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.
Because Appellant’s Section 2 claim is predicated on the same insufficient
facts, this claim necessarily fails as well. See Morgan, Strand, Wheeler & Biggs v.
Radiology, Ltd., 924 F.2d 1484, 1491 (9th Cir. 1991). Assuming Appellant has not
waived the argument that it should be allowed leave to amend, see Mont. Envtl.
Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1191 n.6 (9th Cir. 2014), we also
affirm the district court’s decision to dismiss the complaint without leave to
amend, see Kendall, 518 F.3d at 1052 (“Appellants fail to state what additional
facts they would plead if given leave to amend, or what additional discovery they
would conduct to discover such facts. Accordingly, amendment would be futile.”).
AFFIRMED.
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