RxUSA Wholesale, Inc. v. Alcon Laboratories, Inc.

09-4406-cv
RxUSA Wholesale, Inc. v. Alcon Laboratories, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
of August, two thousand ten.
Present:
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.*
________________________________________________
RXUSA WHOLESALE INC.,
Plaintiff-Appellant,
v. No. 09-4406-cv
ALCON LABORATORIES, et al.,
Defendants-Appellees.
________________________________________________
For Plaintiff-Appellant: MICHAEL L. LEVINE , Levine & Associates, P.C.,
Scarsdale, NY
*
The Honorable Paul G. Gardephe, originally a member of the panel, recused himself
from consideration of this matter. The remaining members of the panel, who are in agreement,
have decided the case pursuant to 2d Cir. IOP E(b).
For Defendants-Appellees: ROBERT A. MILNE (Martin M. Toto, Bryan D. Gant,
on the brief), White & Case LLP, New York, NY**
for Manufacturer Appellees.
MARK A. ROBERTSON , Fulbright & Jaworski L.L.P.,
New York, NY
for Wholesaler Appellees.
TERRENCE J. CONNOLY (Joseph M. Salama, on the
brief), Latham & Watkins LLP, New York, NY
for McKesson Corporation.
Appeal from the United States District Court for the Eastern District of New York
(Hurley, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-appellant RxUSA, Inc. appeals from a judgment entered September 24, 2009
(Hurley, J.), granting defendants-appellants’ motion to dismiss. RxUSA is a secondary
wholesaler of pharmaceutical products and alleges that by refusing to sell pharmaceutical
products to it the Manufacturer and Authorized Wholesaler defendants violated Sections 1 and 2
of the Sherman Act. On appeal, RxUSA argues that the district court incorrectly dismissed
RxUSA’s claims under the Sherman Act, and abused its discretion in denying RxUSA leave to
amend its complaint. We assume the parties’ familiarity with the facts and procedural history of
this case.
Largely for the reasons stated by the district court in its comprehensive opinion, we
affirm. RxUSA’s Section 1 claim against the Manufacturers fails because RxUSA’s assertion of
**
Because of the large number of law firms and attorneys representing defendants in this
case, the full list of attorneys and law firms is not listed here. A comprehensive list of all parties
and attorneys involved in this litigation can be found on the public docket for this case.
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an agreement among the Manufacturers is entirely conclusory and RxUSA does not place its
allegations of parallel conduct in a context that suggests a prior agreement. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556-57 (2007). The only evidence RxUSA points to as suggesting a
prior agreement is RxUSA’s contention that the reason several of the Manufacturers gave for
refusing to sell to RxUSA—that they had adequate distribution networks—was a lie. The mere
fact that RxUSA could not obtain all of the pharmaceuticals that it desired to sell, however, does
not demonstrate that the Manufacturers did not have adequate distribution networks. Likewise,
RxUSA’s Section 1 claim against the Authorized Wholesalers fails because RxUSA’s allegation
of an agreement is entirely conclusory, and the alleged parallel activities of the Authorized
Wholesalers, “when viewed in light of common economic experience,” could “just as well be
independent action.” Id. at 556-57. As competitors of RxUSA in the wholesale pharmaceutical
products market, each Authorized Wholesaler faced independent incentives not to sell to
RxUSA.
RxUSA’s Section 2 claims also fail for the reasons stated by the district court. A refusal
to deal with competitors does not constitute anticompetitive conduct in violation of Section 2
except in limited circumstances not present here with respect to either the Manufacturers or
Authorized Wholesalers. See Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP,
540 U.S. 398, 407-09 (2004). RxUSA’s Section 2 claims against the Authorized Wholesalers
and defendant McKesson fail for the additional reason that RxUSA has not alleged that any
individual Authorized Wholesaler has a monopoly, see H.L. Hayden Co. of N.Y., Inc. v. Siemens
Med. Sys., Inc., 879 F.2d 1005, 1018 (2d Cir. 1989), and its allegations of a “shared monopoly”
under Section 2 merely repeat its failed arguments under Section 1, see FLM Collision Parts,
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Inc. v. Ford Motor Co., 543 F.2d 1019, 1030 (2d Cir. 1976). Further, to the extent that such a
claim is viable, RxUSA’s essential facilities claim fails against the Manufacturers, at the very
least because RxUSA is able to obtain pharmaceutical products from other sources, albeit at a
higher price.
Finally, the district court did not abuse its discretion in denying RxUSA leave to amend
its complaint. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 242 (2d Cir. 2007).
RxUSA did not seek leave to amend its complaint in the district court, see Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994) (“[W]e do not deem it an abuse of the district
court’s discretion to order a case closed when leave to amend has not been sought.”), and we
conclude that any amendment would be futile, see, e.g., Burch v. Pioneer Credit Recovery, Inc.,
551 F.3d 122, 126 (2d Cir. 2008) (concluding that where a plaintiff’s proffered amendments
would not affect the Court’s analysis, amending the complaint would be futile). We have
reviewed RxUSA’s remaining arguments and conclude that they lack merit. Accordingly, for the
foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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