     Case: 15-40206      Document: 00513188828         Page: 1    Date Filed: 09/10/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 15-40206                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 10, 2015
MADHAVAN PISHARODI,                                                        Lyle W. Cayce
                                                                                Clerk
                Plaintiff - Appellant

v.

COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P., doing business as
Valley Regional Medical Center; NISAR HUSSAIN; LUIS GAITAN,

                Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 USDC: 1:14-CV-4


Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM:*
           On January 6, 2014, Dr. Madhavan Pisharodi sued Columbia Valley
Healthcare System, L.P., alleging, inter alia, a violation of the Sherman Act,
15 U.S.C. § 1. In response to Columbia Valley’s motion to dismiss, Pisharodi
filed an amended complaint. The district court dismissed Pisharodi’s amended
complaint anyway, finding its allegations of antitrust injury insufficient. In a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 15-40206
separate order, the district court denied leave to amend the complaint because
amendment would be futile. The only issue in this appeal is whether the order
denying leave to amend was proper. 1 Finding no reversible error of fact or law,
we AFFIRM for essentially the reasons stated by the district court.
       “Where, as here, the district court’s denial of leave to amend was based
solely on futility, we apply a de novo standard of review identical, in practice,
to the standard used for reviewing dismissal under Rule 12(b)(6).” 2 City of
Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010).
Accordingly, an amendment is futile if it “would fail to state a claim upon which
relief could be granted.” Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th
Cir. 2000). To state a claim under § 1 of the Sherman Act, a plaintiff must
show, among other things, “that the practice ‘actually had an adverse effect on
competition.’ ” Benson v. St. Joseph Reg’l Health Cntr., 575 F.3d 542, 549 (5th
Cir. 2009) (quoting Tunica Web Adver. v. Tunica Casino Operators Ass’n,
496 F.3d 403, 412 (5th Cir. 2007)).
       Pisharodi’s factual allegations do not show any adverse effect on
competition. No facts support his allegation that Columbia Valley’s actions
have increased the price or decreased the supply of neurological services in
Cameron County, Texas. Moreover, the facts he does allege tend to undermine
any such conclusion. Pisharodi owns part of a competing hospital in the area
where he continues to perform neurological procedures. Pisharodi’s complaint
asserts that his fees are lower than his competitors’, in part because he uses



       1 Dr. Pisharodi also requests that, if the federal Sherman Act claim is reinstated, the
trial court should retain supplemental jurisdiction over his breach of contract claim, which
was not dismissed. Our disposition renders this request moot.

       2 Both parties urge this court to apply an abuse of discretion standard. But when both
parties suggest the wrong standard, as they have done here, this court can and should apply
the correct standard. United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en
banc). Accordingly, we review the district court’s decision de novo.
                                              2
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                                No. 15-40206
less expensive implants. Given only these facts, we cannot reasonably infer an
adverse change in the local price or supply of neurological services.
Accordingly, as the district court concluded, Pisharodi has failed to plead an
antitrust injury and we AFFIRM.




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