Gold Medal LLC v. USA Track & Field

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOLD MEDAL LLC, DBA Run Gum, No. 16-35488
Plaintiff-Appellant,
D.C. No.
v. 6:16-cv-00092-
MC
USA TRACK & FIELD; UNITED
STATES OLYMPIC COMMITTEE,
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted May 8, 2018
Portland, Oregon
Filed August 7, 2018
Before: Kim McLane Wardlaw*, Johnnie B. Rawlinson,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Nguyen
*
Judge Kim McLane Wardlaw was drawn to replace Judge Marvin
Garbis, who retired after oral argument but before this opinion was
published. Judge Wardlaw has read the briefs, reviewed the record, and
listened to oral argument.
2 GOLD MEDAL LLC V. USA TRACK & FIELD
SUMMARY**
Antitrust
The panel affirmed the district court’s dismissal of a
complaint alleging that USA Track & Field and the United
States Olympics Committee engaged in an anticompetitive
conspiracy in violation of antitrust law by imposing
advertising restrictions during the Olympic Trials for track
and field athletes.
Following the analysis of the Tenth and Eleventh Circuits,
and distinguishing a decision of the Fifth Circuit, the panel
held that the Olympics Committee and USATF were entitled
to implied antitrust immunity on the basis that their
advertising restrictions were integral to performance of their
duties under the Ted Stevens Olympic and Amateur Sports
Act.
Concurring in the result, Judge Nguyen disagreed with the
majority’s conclusion that the defendants were immune from
the antitrust claim alleged in the complaint. Judge Nguyen
wrote that the complaint nevertheless failed to state a claim
under § 1 of the Sherman Act because, even if the plaintiff
could allege a plausible conspiracy and a viable product
market, it did not allege that the defendants received any
economic benefit.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GOLD MEDAL LLC V. USA TRACK & FIELD 3
COUNSEL
Sathya S. Gosselin (argued), Swathi Bojedla, and Michael D.
Hausfeld, Hausfeld LLP, Washington, D.C.; Timothy P.
Landis, Timothy Landis P.C., Portland, Oregon; for Plaintiff-
Appellant.
Derek Ludwin (argued) and Philip J. Levitz, Covington &
Burling LLP, Washington, D.C.; Bruce L. Campbell, Miller
Nash Graham & Dunn LLP, Portland, Oregon; Douglas N.
Masters and Emily Stone, Loeb & Loeb LLP, Chicago,
Illinois; Nathan J. Muyskens, Loeb & Loeb LLP,
Washington, D.C.; Robert E. Sabido, Cosgrave Vergeer
Kester LLP, Portland, Oregon; for Defendants-Appellees.
OPINION
RAWLINSON, Circuit Judge:
Appellant Gold Medal LLC d/b/a Run Gum (Run Gum)
appeals the district court’s order dismissing its complaint.
Run Gum alleged that Appellees USA Track & Field
(USATF) and the United States Olympic Committee
(Olympic Committee) engaged in an anticompetitive
conspiracy in violation of antitrust law by imposing
advertising restrictions during the Olympic Trials for track
and field athletes. According to Run Gum, the district court
erroneously determined that the Olympic Committee and
USATF should be afforded implied antitrust immunity on the
basis that their advertising restrictions were integral to
performance of their duties under the Ted Stevens Olympic
and Amateur Sports Act (ASA). See JES Props., Inc. v. USA
Equestrian, Inc., 458 F.3d 1224, 1226 (describing the ASA)
4 GOLD MEDAL LLC V. USA TRACK & FIELD
(Alarcon, C.J., authoring judge). Reviewing de novo, we
affirm the judgment of the district court.
I. BACKGROUND
This appeal involves the statutory framework devised by
Congress in support of the mission of national sports
governing bodies to promote and finance the participation of
American athletes in “international amateur athletic
competition.” 36 U.S.C. § 220503. Under the auspices of the
ASA, the Olympic Committee exercises exclusive
jurisdiction over “all matters pertaining to United States
participation in the Olympic Games, the Paralympic Games,
and the Pan-American Games, including representation of the
United States in the games,” and “the organization of the
Olympic Games, the Paralympic Games, and the Pan-
American Games when held in the United States.” Id. at
§ 220503(3). With respect to amateur athletics, the Olympic
Committee may “organize, finance, and control the
representation of the United States in the competitions and
events of the Olympic Games, the Paralympic Games, and the
Pan-American Games.” Id. at § 220505(c)(3). The Olympic
Committee may also “obtain, directly or by delegation to the
appropriate national governing body, amateur representation
for those games.” Id.
In its complaint, Run Gum, a manufacturer of
“compressed functional chewing gum” containing “a
proprietary mix of caffeine, taurine, and b vitamins,” averred
that USATF, as the national governing body for the sport of
track and field, “organizes and hosts the Olympic Trials,
where the greatest track [and] field athletes in the United
States compete to earn a position on the U.S. Olympic team.”
Run Gum asserted that “[g]iven the unique nature and
GOLD MEDAL LLC V. USA TRACK & FIELD 5
infrequency of the Olympic Trials, the public interest is
overwhelming,” with “[i]n-person attendance typically
exceed[ing] 20,000.”
Run Gum alleged that, despite its interest in sponsoring
athletes during the Olympic Trials, it was precluded from
doing so due to logo and sponsorship restrictions imposed by
the Olympic Committee and enforced by USATF. According
to Run Gum, USATF “severely restrict[s] the type of
individual sponsors that track [and] field athletes can display
on their athletic apparel at the Olympic Trials, including their
competition kit, which greatly diminishes sponsorship
opportunities for the athletes and excludes various would-be
sponsors.” (internal quotation marks omitted) (emphasis in
the original). Run Gum complained that USATF’s
advertising restrictions provide that “with the exception of
standard manufacturers’ equipment identification . . . the
equipment, uniforms, and the bibs/numbers of the
competitors and officials at the Trials may not bear any
commercial identification or promotional material of any kind
(whether commercial or noncommercial).” (alteration and
footnote reference omitted). Run Gum asserted that the
USATF regulation nonetheless allows athletes to wear
apparel containing the logo and names of certain pre-
approved manufacturers, such as Nike.
Run Gum maintained that use of pre-approved
manufacturers “exclude[d] scores of sponsors from the
marketplace” in violation of Section 1 of the Sherman Act.
Run Gum posed a single cause of action premised on
violations of the antitrust laws stemming from the challenged
advertising restrictions. Run Gum contended that the
regulation limiting sponsorships of athletes during the
Olympic Trials was “an anticompetitive horizontal and
6 GOLD MEDAL LLC V. USA TRACK & FIELD
vertical agreement among competitors to fix artificially—and
unlawfully—the number of individual sponsors and the price
paid to athletes for individual sponsorship.” Run Gum further
alleged that the advertising and logo restriction was “an
unlawful group boycott of individual sponsors that do not
manufacturer [sic] apparel or equipment, which are
categorically excluded from sponsoring athletes at the
Olympic Trials.” In addition to damages, Run Gum sought
to enjoin the Olympic Committee and USATF from
“preventing Run Gum from sponsoring individual athletes at
the 2016 Olympic Trials in exchange for sponsor
identification on clothing at the Olympic Trials.”
In a published opinion, the district court dismissed Run
Gum’s action based on implied antitrust immunity under the
ASA. See Gold Medal LLC v. USA Track & Field, 187 F.
Supp. 3d 1219, 1222 (D. Or. 2016). While acknowledging
that grants of implied antitrust immunity are generally
disfavored, the district court nevertheless concluded that the
advertising restrictions enabled the Olympic Committee and
USATF to perform their statutory obligations under the ASA.
See id. at 1228–30. The district court emphasized that “[a]s
the only nation that does not provide its Olympic team with
federal funding or subsidies, the United States instead relies
on the [Olympic Committee] to raise the financial resources
necessary to organize Team USA and to compete in the
Olympic Games.” Id. at 1228 (citation omitted). According
to the district court, the advertising restrictions “prevent a
dilution of the Olympic brand,” and “permit the [Olympic
Committee] and USATF to play a gatekeeping function
which preserves the exclusivity–and thus value–of the
Olympic symbols and name.” Id. at 1230. Due to the
importance of the advertising restrictions in advancing the
Olympic mission, the district court held that the Olympic
GOLD MEDAL LLC V. USA TRACK & FIELD 7
Committee and USATF should be afforded implied antitrust
immunity in enforcing the restrictions that were necessary to
fulfillment of their statutory duties under the ASA. See id. at
1231–32.
Run Gum filed a timely notice of appeal.
II. STANDARDS OF REVIEW
“We review de novo the district court’s grant of a motion
to dismiss.” Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172
(9th Cir. 2018) (citation omitted).
“We [also] review de novo . . . the district court’s
determinations of immunity from antitrust liability.” United
Nat’l Maintenance, Inc. v. San Diego Convention Ctr., Inc.,
766 F.3d 1002, 1006 (9th Cir. 2014) (citation omitted).
III. DISCUSSION
We have recognized that “implied antitrust immunity is
not favored, and can be justified only by a convincing
showing of clear repugnancy between the antitrust laws and
the regulatory system.” Total TV v. Palmer Commc’ns, Inc.,
69 F.3d 298, 302 n.6 (9th Cir. 1995) (citation and alteration
omitted). Although we have not directly addressed implied
antitrust immunity under the ASA, other circuit courts have
found the requisite “clear repugnancy” between the ASA and
antitrust laws. Id.
In JES Props., Inc. v. USA Equestrian, Inc., 458 F.3d
1224 (11th Cir. 2006), the Eleventh Circuit addressed a rule
developed by the United States Equestrian Foundation
(Equestrian Foundation) that imposed a mileage distance for
8 GOLD MEDAL LLC V. USA TRACK & FIELD
equestrian competitions. See id. at 1226–27. The mileage
rule generally required that any A-rated equestrian
competitions on the same date be held a minimum of
250 miles apart. The Eleventh Circuit discerned the
following two purposes for the rule: 1) “to concentrate elite
riders into fewer competitions in order to yield the most
competitive international equestrian team possible,” and
2) “to promote equestrianism nationwide by forcing
promoters to hold recognized competitions in more diverse
locations.” Id. at 1227. The Eleventh Circuit reasoned that,
due to “the monolithic control”exercised by national
governing bodies, “the question . . . is whether the application
of the antitrust laws to the facts of this case would unduly
interfere with the operation of the ASA.” Id. at 1231–32
(citation and internal quotation marks omitted). The Eleventh
Circuit explained that it would “not substitute its own
judgment for that of the [Equestrian Foundation] regarding
the optimum way to fulfill its obligations,” and concluded
that “implied immunity [was] called for in [the] case.” Id. at
1232. In reaching this conclusion, the Eleventh Circuit
emphasized that, contrary to the plaintiffs’ assertions, it was
not required to “focus on whether the rule is an effective or
wise way of implementing [the Equestrian Foundation’s]
powers,” id. at 1231, or to “consider whether the particular
eligibility rule was necessary or otherwise examine the
wisdom of the rule.” Id. at 1232 (emphasis in the original).
The Eleventh Circuit held that “[b]ecause the ASA requires
[a national governing body] to promulgate rules to minimize
conflicts in schedules, the imposition of antitrust liability for
the promulgation of such a rule is plainly repugnant to the
ASA.” Id. (alteration and internal quotation marks omitted).
The Eleventh Circuit relied heavily on the Tenth Circuit’s
approach in Behagen v. Amateur Basketball Ass’n of the
GOLD MEDAL LLC V. USA TRACK & FIELD 9
United States, 884 F.2d 524 (10th Cir. 1989). See JES
Props., 458 F.3d at 1231–32. In Behagen, the Tenth Circuit
reversed a jury verdict in favor of a basketball player who
challenged under the antitrust laws an eligibility rule
developed by the national governing body for amateur
basketball that prohibited a player from participating in
amateur events if the player had participated in professional
games. See Behagen, 884 F.2d at 526–27. The Tenth Circuit
held that the antitrust issue should not have gone to the jury
because the eligibility rule was exempt from the antitrust laws
under the ASA. See id. at 527. The Tenth Circuit
emphasized that “Behagen complains of exactly that action
which the [ASA] directs—the monolithic control of an
amateur sport by the [national governing body] for that
sport.” Id. at 529. The Tenth Circuit clarified that “the
[Amateur Basketball Association of the United States of
America] could not be authorized under the [ASA] unless it
maintained exactly that degree of control over its sport that
Behagen here alleges as an antitrust violation.” Id. The
Tenth Circuit emphasized that “[a]lthough [a national
governing body] is a private actor, the monolithic control
exerted by [a national governing body] over its amateur sport
is a direct result of the congressional intent expressed in the
Amateur Sports Act.” Id. at 528 (footnote reference omitted).
We are persuaded that we should follow the analysis
reflected in the decisions of our sister circuits applying
implied antitrust immunity under the ASA. We are not
persuaded that the Fifth Circuit’s decision in Eleven Line, Inc.
v. N. Tex. State Soccer Ass’n, Inc., 213 F.3d 198 (5th Cir.
2000), mandates a reversal in this case. In Eleven Line, the
Fifth Circuit held that the exclusionary activities of non-
profit, volunteer-run soccer organizations should not be
afforded implied antitrust immunity. See id. at 199, 204–05.
10 GOLD MEDAL LLC V. USA TRACK & FIELD
The non-profit organization in that case promulgated and
implemented a rule requiring soccer players, coaches, and
referees to conduct soccer games only at “sanctioned”
facilities, which did not include Eleven Line’s for-profit
soccer facility. Id. at 199. Notably, the national governing
body for youth soccer did not issue the challenged rule or
explicitly approve it. See id. at 204 & n.1. For these reasons,
Eleven Line is distinguishable from the present appeal, as
well as from JES Properties and Behagen, because it
involved a rule that was not sanctioned or approved by a
national governing body, and the organization imposing the
rule was the “only national state association to have such a
rule.” Id.
The Fifth Circuit recognized the propriety of applying
implied antitrust immunity under the ASA when the rule, like
the advertising and logo restriction before us in this case, is
either developed or approved by a national governing body:
Although the facts of this case do not support
an implied exemption from the antitrust laws,
an implied exemption would be appropriate in
many other situations. For example, if
national state associations all over the country
had a similar rule, one could infer that the rule
was necessary to the management of the
sport. . . . If [the national governing body] had
promulgated the rule or expressly approved
[the] rule in such a way as to indicate an
awareness of its consequences, it would be a
player eligibility rule exempted under
Behagen. . . . Any of these circumstances, and
no doubt others not described here, would
merit an implied exemption.
GOLD MEDAL LLC V. USA TRACK & FIELD 11
Id. at 204–05.
The Fifth Circuit expressed its belief that “Behagen was
correctly decided,” but recognized that Behagen did not cover
the facts of Eleven Line. Id. at 204. Ultimately, in Eleven
Line, the Fifth Circuit concluded that implied antitrust
immunity was unavailable because the non-profit soccer
organization “promulgated a rule that could be found
nowhere else in the country, that was not explicitly approved
by the [the national governing body], and for which it was
unable to articulate a convincing rationale related to its
management of amateur soccer in the area.” Id. at 205.
We conclude that the decisions of the Tenth and Eleventh
Circuits provide a sound basis for affirming the district
court’s application of implied antitrust immunity to the
advertising and logo restrictions enforced by the USATF.
Under the ASA, the respective national governing body is
authorized to “organize, finance, and control the
representation of the United States in the competitions and
events of the Olympic Games, the Paralympic Games, and the
Pan-American Games, and obtain, directly or by delegation
to the appropriate national governing body, amateur
representation for those games.” 36 U.S.C. § 220505(c)(3).
The ASA broadly grants national governing bodies exclusive
rights in “the name United States Olympic Committee,” “the
symbol of the International Olympic Committee,” “the
emblem of the corporation,” as well as “the words Olympic,
Olympiad, Citius Altius Fortius, Paralympic, Paralympiad,
Pan-American, America Espirito Sport Fraternite, or any
combination of those words.” 36 U.S.C. § 220506(a)
(internal quotation marks omitted). In light of the broad
authority bestowed upon national governing bodies to fund
the Olympic Mission, the challenged advertising and logo
12 GOLD MEDAL LLC V. USA TRACK & FIELD
restrictions precluding advertisers from impinging on this
delegated authority falls within the mission to protect the
value of corporate sponsorships and maximize sanctioned
fundraising. To compel the Olympic Committee and USATF
under the antitrust laws to permit any would-be advertiser to
sponsor individual athletes without national governing body
approval “would unduly interfere with the operation of the
ASA.” JES Props., 458 F.3d at 1231–32 (citation and
internal quotation marks omitted). Although the statute does
not explicitly bestow antitrust immunity, the ASA establishes
funding for the Olympic mission as a central responsibility of
the Olympic Committee and its national governing bodies.
See San Francisco Arts & Athletics, Inc. v. U.S. Olympic
Comm., 483 U.S. 522, 538–39 (1987) (recognizing that
exclusive rights in the term “Olympics” “directly advances
. . . governmental interests by supplying the [Olympic
Committee] with the means to raise money to support the
Olympics and encourages the [Olympic Committee’s]
activities by ensuring that it will receive the benefits of its
efforts”); see also Behagen, 884 F.2d at 529 (“Although the
Amateur Sports Act does not contain an explicit statement
exempting action taken under its direction from the federal
antitrust laws, we find that the directives of the Act make the
intent of Congress sufficiently clear. . . .”) (citation and
footnote reference omitted).
The analysis of our sister circuits that we now adopt is
consistent with the express purpose of the ASA. As noted by
the United States Supreme Court, the ASA was “enacted to
correct the disorganization and the serious factional disputes
that seemed to plague amateur sports in the United States.”
San Francisco Arts & Athletics, 483 U.S. at 544 (quoting
H.R. Rep. No. 95-1627, p. 9, U.S. Code Cong. & Admin.
News 1978 p. 7482). As discussed, the Supreme Court has
GOLD MEDAL LLC V. USA TRACK & FIELD 13
clarified that it was the intent of Congress that the Olympic
Committee be provided “with the means to raise money to
support the Olympics,” including the “commercial and
promotional value derived from the panache associated with
the Olympics.” Id. at 532–33. Similarly to the plaintiff in
Behagen, Run Gum “complains of exactly that action which
the [ASA] directs—the monolithic control of an amateur
sport by the [national governing body] for that sport,”
Behagen, 884 F.2d at 529, as a “direct result of the
congressional intent expressed in the [ASA].” Id. at 528
(footnote reference omitted).
Finally, Run Gum contends that the district court engaged
in improper fact-finding that the advertising and logo
restrictions prevented dilution of the Olympic brand. Run
Gum specifically maintains that the district court’s factual
findings contradicted its allegations that must be taken as true
at the dismissal stage. However, the district court’s analysis
was not premised on any improper factual findings, as the
district court merely made the obvious and common-sense
observation that elimination of the advertising restrictions
would dilute the Olympic brand. See San Francisco Arts &
Athletics, 483 U.S. at 532–33; see also Gold Medal, 187 F.
Supp. 3d at 1230 (noting that Run Gum sought “to capitalize
on the unique nature of the Olympic Brand” and that the
national governing body sought to “prevent a dilution of the
Olympic Brand”).1
1
Because we conclude that the Olympic Committee and USATF
should be afforded implied antitrust immunity, we do not reach the
alternative argument raised by the Olympic Committee and USATF that
Run Gum failed to sufficiently allege the requisite relevant market for
antitrust injury.
14 GOLD MEDAL LLC V. USA TRACK & FIELD
IV. CONCLUSION
Consistent with the purpose of the ASA, and the
analytical framework reflected in Behagen and JES
Properties, we conclude that the advertising and logo
restrictions applied by the Olympic Committee and USATF
to sponsorship of individual athletes during the Olympic
Trials should be afforded implied antitrust immunity under
the ASA. The district court properly applied implied antitrust
immunity under the ASA in dismissing Run Gum’s complaint
based on the “convincing showing of clear repugnancy
between the antitrust laws” and the provisions of the ASA to
advance the Olympic Committee’s mission to fund and
administer Olympic events. Total TV, 69 F.3d at 302 n.6
(citation omitted). As the district court observed, an
injunction preventing enforcement of the advertisement
regulation “would open the floodgates” to potential
advertisers, some of which might enhance the Olympic brand
and some of which might devalue the Olympic brand. See
Gold Medal LLC, 187 F. Supp. 3d at 1230. The regulation
avoids placing the Olympic Committee in the unenviable
position of having to face this conundrum in fulfilling its
mission to finance American Olympic athletes. We thus view
the regulation as protected from antitrust challenge. See
Behagen, 884 F.2d at 529 (connecting implied antitrust
immunity with Congressional intent for the ASA). As made
evident by the Eleven Line decision, application of implied
antitrust immunity is not limitless. However, we are
persuaded that the facts of this case fall comfortably within
the framework contemplated by Congress when it enacted the
ASA. See San Francisco Arts & Athletics, 483 U.S. at
538–39 (discussing Congressional intent to supply the
Olympic Committee with “the means to raise money to
GOLD MEDAL LLC V. USA TRACK & FIELD 15
support the Olympics” and “ensuring that the [Olympic
Committee] will receive the benefit of its efforts”).
AFFIRMED.
NGUYEN, Circuit Judge, concurring in the result:
Respectfully, I disagree with the majority’s conclusion
that defendants are immune from the antitrust claim alleged
in the complaint. As the majority correctly recognizes,
“[i]mplied antitrust immunity is not favored, and can be
justified only by a convincing showing of clear repugnancy
between the antitrust laws and the regulatory system.” United
States v. Nat’l Ass’n of Sec. Dealers, Inc., 422 U.S. 694, 719
(1975). We therefore don’t analyze conflict between antitrust
and other laws at a high level of generality. See Silver v. N.Y.
Stock Exch., 373 U.S. 341, 357 (1963) (rejecting approach in
which an organization’s “general power to adopt rules”
renders “particular applications of such rules . . . outside the
purview of the antitrust laws.”). “[T]he proper approach . . .
is an analysis which reconciles the operation of both statutory
schemes with one another rather than holding one completely
ousted.” Id. at 357.
The antitrust claim here involves a narrow exception
allowing athletes to wear apparel with the manufacturer’s
logo notwithstanding a general rule prohibiting sponsorship
and advertising on their clothes. The purpose of this
exception, according to defendants, is “to permit athletes to
purchase and wear store-bought apparel they preferred and
could afford.” It has nothing to do with defendants’ statutory
right “to exercise exclusive jurisdiction” over “all matters
16 GOLD MEDAL LLC V. USA TRACK & FIELD
pertaining to United States participation in the Olympic
Games,” 36 U.S.C. § 220503(3)(A), to “authorize
contributors and suppliers of goods or services to use”
Olympic marks, id. § 220506(b), or to otherwise “finance . . .
the Olympic Games,” id. § 220505(c)(3).
While the rule banning advertising on athletic apparel
may serve a revenue-raising purpose by protecting the value
of the Olympic brand, it is the exception—not the rule—at
issue here. Run Gum’s allegations don’t suggest that
defendants profit from the exception.1 But neither do they
establish a viable product market. See Hicks v. PGA Tour,
Inc., No. 16-15370, slip op. at 25–30 (9th Cir. July 27, 2018).
Therefore, while implied antitrust immunity does not apply,
Run Gum nevertheless has failed to allege an antitrust claim.
Run Gum normally would be entitled to amend its
pleadings, see id. at 31–32, but here any amendment would
be futile. Even if Run Gum can allege a plausible conspiracy
and a viable product market, its antitrust claim is still
untenable. Either defendants received no economic benefit,
in which case the apparel manufacturer exception is
nonactionable, see O’Bannon v. Nat’l Collegiate Athletic
Ass’n, 802 F.3d 1049, 1065–66 (9th Cir. 2015), or they are
exercising their statutory right to finance the Olympic Games
with implied immunity from suit.
1
The only entities alleged to profit from the exception are the apparel
manufacturers, who compete for advertising space on athletes’ apparel
with fewer potential rivals, thus suppressing their advertising costs. While
it is possible that defendants indirectly profit from the exception by
conspiring with the apparel manufacturers, Run Gum’s conclusory
allegations do not plausibly show this or any other conspiracy. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007).
GOLD MEDAL LLC V. USA TRACK & FIELD 17
Therefore, I concur in the result affirming the district
court’s dismissal of Run Gum’s complaint with prejudice.