                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WAYNE TALEFF; et al.,                            No. 11-17995

              Plaintiffs - Appellants,           D.C. No. 3:11-cv-02179-JW

  v.
                                                 MEMORANDUM*
SOUTHWEST AIRLINES CO.; et al.,                  and ORDER

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                     James Ware, District Judge, Presiding

                           Submitted January 15, 2014**
                             San Francisco, California

Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Appellants, direct purchasers of airline tickets, appeal the district court’s

dismissal of their Clayton Act challenge to a $1.4 billion merger consummated by

Appellees Southwest Airlines, Guadalupe Holdings, and AirTrans Holdings. The

district court granted Appellees’ motion to dismiss with prejudice, reasoning that

Appellants are not entitled to injunctive relief in the form of a divestiture order

under 15 U.S.C. § 26, and do not request any alternative relief. We review the

dismissal de novo, Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th

Cir. 2009), and we affirm.

      The district court correctly held that Appellants failed to demonstrate

entitlement to divestiture. See Indep. Training & Apprenticeship Program v. Cal.

Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (stating standard of

review for injunctive relief). Appellants were required to make a fact-based

showing of entitlement to that drastic and rarely awarded remedy. California v.

Am. Stores Co., 495 U.S. 271, 295–96 (1990). Appellants’ asserted injuries are

limited, however. They offer no evidence of threatened or actual specific injuries

to themselves, and proffer no support for their generalized claims of injury to

consumers and competition. In addition, as the district court noted, Appellants

delayed filing suit until roughly seven months after learning of the proposed

transaction, and thus allowed the deal to close—thereby significantly increasing


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the disruption to Appellees’ operations and the hardship to Appellees’ stockholders

and passengers caused by divestiture. Under these circumstances, Appellants’

factual allegations are insufficient to show that the balance of hardships will tip in

their favor or that divestiture would not disserve the public interest. Am. Stores

Co., 495 U.S. at 295–96. It follows that Appellants fail to state a claim for relief.

      The district court did not err by dismissing the case with prejudice. Any

amendment would be futile in light of the hardship analysis required, given

Appellants’ delayed filing and the heightened consequences that would result from

divestiture. Cf. Carvalho v. Equifax Info. Servs., 629 F.3d 876, 892–93 (9th Cir.

2010). In so concluding, we note that Appellants have neither proposed any

specific amendments that would redress the fatal defects in their plea for relief nor

request any other form of remedy, and they have already amended their pleadings

and litigated the availability of divestiture twice without success.1 See Ecological

Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013).

      AFFIRMED.



      1
             We grant Appellants’ request for judicial notice of a Department of
Justice press release dated April 26, 2011, announcing the closure of its
investigation into the challenged merger, see Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998–99 (9th Cir. 2010), but decline to take notice of Appellants’
other submitted materials because they are either inappropriate for judicial notice
under Federal Rule of Evidence 201 and/or irrelevant under Rule 401.

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