                                                                            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                            NOT FOR PUBLICATION                             MAR 09 2015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.”


                                            2
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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