                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           MAY 22 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
BONA FIDE CONGLOMERATE, INC.,                    No.   15-55999

              Plaintiff-Appellant,               D.C. No.
                                                 3:14-cv-00751-GPC-DHB
 v.

SOURCEAMERICA; et al.,                           MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                        Argued and Submitted May 12, 2017
                               Pasadena, California

Before: CHRISTEN and WATFORD, Circuit Judges, and SOTO,** District Judge.

      1. The district court properly dismissed Bona Fide Conglomerate, Inc.’s

claims under Section 1 of the Sherman Act, 15 U.S.C. § 1. To withstand a motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6), Bona Fide’s complaint


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **     The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
                                                                          Page 2 of 4
had to answer “basic questions” such as “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). Considering the complaint’s allegations as a whole, Bona Fide failed to

allege sufficient facts to answer those questions. Dismissal of Bona Fide’s Section

1 claims was therefore warranted.

      For example, the allegations attributed to Jean Robinson, the former general

counsel of SourceAmerica, fail to support the existence of a Section 1 conspiracy.

Robinson alleged that the defendants are members of a “club” or “mafia” that

controls the allocation of contracts under the AbilityOne Program and that several

of the defendants’ executives are involved in the collusive activity. These

allegations fail to explain where and when the alleged collusive activity among the

defendants occurred, as needed to make out a plausible Section 1 claim. See id.

      Robinson’s allegations identifying specific agreements between certain

defendants fare no better. For example, Robinson alleged that one of the

defendants, PRIDE, did not protest SourceAmerica’s allocation of a contract to

another defendant, ServiceSource, because PRIDE knew that SourceAmerica

would award it a more lucrative contract in the future. These allegations fail to

explain where and when any such agreement was consummated, which again

would be needed to make out a plausible Section 1 claim. See id.
                                                                          Page 3 of 4
      Bona Fide’s other allegations of a Section 1 conspiracy fail to meet the

Kendall standard as well. For example, Bona Fide alleges that the defendants’

employees have served as members of SourceAmerica’s board and on the

Executive Committee of the National Council of SourceAmerica Employers. Bona

Fide further alleges that those employees controlled SourceAmerica’s allocation

process. But Bona Fide does not allege that the defendants ever comprised a

majority of the membership of the SourceAmerica board or the NCSE Executive

Committee, which would be necessary to establish that the defendants controlled

SourceAmerica’s allocation of AbilityOne Program contracts. Bona Fide also

alleges that SourceAmerica and Corporate Source agreed that SourceAmerica

would allocate all of its contracts in the Caribbean to Corporate Source. These

allegations are deficient because they fail to specify who was involved in reaching

that arrangement or when the arrangement was reached. See id.

      Bona Fide’s references to “plus factors” fail to save its Section 1 claims

from dismissal. “Plus factors” are relevant only if the complaint adequately alleges

parallel conduct among the defendants. See In re Musical Instruments and

Equipment Antitrust Litigation, 798 F.3d 1186, 1193–94 (9th Cir. 2015). Bona

Fide has not plausibly alleged any parallel conduct among the defendants. Bona
                                                                           Page 4 of 4
Fide’s “plus factors” are therefore irrelevant to determining whether the complaint

made out a viable Section 1 claim. Id.

      2. The district court did not err by denying Job Options, Inc.’s and

Opportunity Village, Inc.’s motions to dismiss under Federal Rule of Civil

Procedure 12(b)(1). Bona Fide alleges that Job Options is a participant in an

ongoing Section 1 conspiracy under which it will receive future AbilityOne

Program contracts to Bona Fide’s detriment. These allegations are sufficient to

satisfy Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

560–61 (1992). Contrary to Opportunity Village’s argument, Bona Fide’s claims

are not subject to the exclusive jurisdiction of the United States Court of Federal

Claims under the Tucker Act, 28 U.S.C. § 1491(a)(1). Bona Fide’s claims are not

founded “upon any express or implied contract with the United States.” Id. Nor

did Bona Fide name the United States as a party to this case. See United States v.

Sherwood, 312 U.S. 584, 588 (1941).

      AFFIRMED.

      Bona Fide’s motion for judicial notice is DENIED.
