Stephen Ireland v. Bend Neurological Associates ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN IRELAND, No. 18-35316
Plaintiff-Appellant, D.C. No. 6:16-cv-02054-JR
v.
MEMORANDUM*
BEND NEUROLOGICAL ASSOCIATES,
LLC, an Oregon limited liability company;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Stephen Ireland appeals pro se from the district court’s judgment dismissing
his action alleging federal and state law claims. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s dismissal under Federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Ireland’s request for oral
argument, set forth in his reply brief, is denied.
Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.
2010). We affirm in part, vacate in part, and remand.
The district court properly dismissed Ireland’s claim of a per se violation of
§ 1 of the Sherman Act because Ireland failed to allege facts sufficient to state a
plausible claim. See id. at 341-42 (although pro se pleadings are construed
liberally, plaintiff must present factual allegations sufficient to state a plausible
claim for relief); Austin v. McNamara, 979 F.2d 728, 738 (9th Cir. 1992)
(discussing requirements for per se violation under the Sherman Act).
The district court did not abuse its discretion by denying leave to amend the
per se Sherman Act claim because amendment would have been futile. See
Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (explaining
that “[a] district court acts within its discretion to deny leave to amend when
amendment would be futile”).
However, the district court erred by dismissing Ireland’s “rule of reason”
Sherman Act claim. Liberally construed, the proposed second amended complaint
contains sufficient allegations that defendants’ decision to terminate call coverage
for Ireland’s patients was intended to restrain competition unreasonably and
actually caused injury to competition that harmed consumer welfare. Ireland
alleged that defendants have refused service to lower-paying patients and
procedures, and that he was the only neurologist who saw patients whom
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defendants refused to see. See Austin, 979 F.2d at 739 (requirements for a “rule of
reason” violation); see also Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 848
(9th Cir. 1996) (“[W]hile conduct that eliminates rivals reduces competition,
reduction of competition does not invoke the Sherman Act until it harms consumer
welfare.” (citation and internal quotation marks omitted)); Pinhas v. Summit
Health, Ltd., 894 F.2d 1024, 1032 (9th Cir. 1989) (discussing allegation regarding
plaintiff’s provision of services at a lower rate than competitors; concluding that
plaintiff adequately pleaded injury to competition).
The district court dismissed Ireland’s intentional interference with economic
relations (“IIER”) claim because the allegations regarding the requisite “improper
means” or “improper purpose” were directly linked to Ireland’s Sherman Act
claim. Because we conclude that the district court erred by dismissing the “rule of
reason” Sherman Act claim, we conclude that the district court erred by dismissing
Ireland’s IIER claim. See Kraemer v. Harding, 976 P.2d 1160, 1170 (Or. Ct. App.
1999) (elements of an IIER claim).
In sum, we vacate and remand as to Ireland’s “rule of reason” Sherman Act
claim and IIER claim under Oregon law. We affirm dismissal of Ireland’s per se
Sherman Act claim.
In light of our disposition, we do not consider Ireland’s contentions
regarding judicial notice or the incorporation by reference doctrine.
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The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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