     Case: 17-51108      Document: 00515292125         Page: 1    Date Filed: 01/30/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                      January 30, 2020
                                      No. 17-51108
                                                                       Lyle W. Cayce
                                                                            Clerk

SAMUEL A. GURROLA

               Plaintiff - Appellant

v.

WALGREEN COMPANY,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:17-CV-78


Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant Samuel Gurrola, owner of Palafox Pharmacy in Anthony,
Texas, sued Appellee Walgreen Company (“Walgreens”) for alleged violations
of the Sherman and Clayton Acts, breach of contract, and civil conspiracy.
According to Gurrola’s pro se complaint, he accepted Walgreens’ offer to
purchase his pharmacy in 2014. In furtherance of the sale, Gurrola allowed “an
in[formation] gathering business called Infoworks” to access Palafox’s


       * 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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-51108
computer records, including sales reports, customer lists, and doctor lists.
Then, according to Gurrola, Walgreens backed out of the deal without
justification and used the data it had obtained during the due-diligence process
to appropriate more than 90% of Palafox’s business for itself. Gurrola alleged
that Walgreens’ conduct in the Palafox deal was part of a wider scheme to
obtain “monopolistic control[]” of the area’s pharmacy market “through
buyouts and forceouts.”
       Walgreens moved to dismiss Gurrola’s complaint under Federal Rule of
Civil Procedure 12(b)(6). The district court granted Walgreens’ motion, finding
that Gurrola had failed to allege facts sufficient to state any of his claims. The
court denied as moot Gurrola’s motion for a restraining order against
Walgreens agents who he claimed had stalked him.1 Gurrola now appeals both
the dismissal of his claims and the denial of his motion for a restraining order.
We address each of Gurrola’s arguments in turn, reviewing the district court’s
dismissal for failure to state a claim de novo2 and its denial of injunctive relief
for abuse of discretion.3
       First, Gurrola contends that the district court erred in finding that he
failed to state a Clayton Act claim. Gurrola’s complaint alleged a violation of
Section 3 of the Clayton Act, which prohibits restrictive agreements, including
exclusive-dealing arrangements, that “may . . . substantially lessen
competition or tend to create a monopoly in any line of commerce.”4 The district
court found that Gurrola had failed to allege facts to support a Section 3 claim,
and Gurrola does not appear to challenge that determination on appeal.5

       1 The district court also denied Gurrola’s motion for leave to amend his complaint to
include allegations of racially motivated harassment dating from 1989. Gurrola does not
challenge the denial of leave to amend.
       2 See Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per curiam).
       3 See Anderson v. Jackson, 556 F.3d 351, 355–56 (5th Cir. 2009)
       4 15 U.S.C. § 14.
       5 See Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 625 (5th Cir. 2002)

(internal quotation marks omitted) (quoting Tampa Elec. Co. v. Nashville Coal Co., 365 U.S.
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Instead, he contends that the district court should have found that he stated a
claim under Section 7 of the Clayton Act, which bars anticompetitive mergers
and acquisitions.6 However, Gurrola’s complaint alleged only a Section 3
violation. Any claims under other sections of the Act were not raised before the
district court and are therefore waived.7
       Next, Gurrola contends that the district court erred in finding that he
failed to state a Sherman Act monopolization claim. To state a claim for
monopolization under Section 2 of the Sherman Act, a plaintiff must show “that
the asserted violator 1) possesses monopoly power in the relevant market and
2) acquired or maintained that power willfully, as distinguished from the
power having arisen and continued by growth produced by the development of
a superior product, business acumen, or historic accident.”8 As we have
repeatedly observed, simply “[h]aving or acquiring a monopoly is not in and of
itself illegal.”9 Rather, “[t]he illegal abuse of power occurs when the monopolist
exercises its power to control prices or exclude competitors from the relevant
market for its products.”10
       The district court correctly found that Gurrola did not plead sufficient
facts to state a monopolization claim. Gurrola alleged that Walgreens had
acquired a 99.99% “market share”; however, at no point did he define the


320, 328 (1961)) (To state a Section 3 claim, a plaintiff must (1) identify the relevant product
market; (2) identify the relevant geographic market; and (3) “show that the competition
foreclosed by the arrangement constitutes a substantial share of the relevant market.”). To
the extent Gurrola might intend to challenge the district court’s Section 3 analysis, that
challenge fails. His complaint asserts that Walgreens engaged in exclusive dealing, but it
does not identify with whom Walgreens agreed to deal, nor the goods in which it was dealing,
nor how the arrangement constrained or might constrain competition.
       6 See 15 U.S.C. § 18.
       7 See Celanese Corp. v. Martin K. Eby Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010)

(“[A]rguments not raised before the district court are waived and will not be considered on
appeal.”).
       8 Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 522 (5th Cir. 1999).
       9 Abraham & Veneklasen Joint Venture v. Am. Quarter Horse Ass’n, 776 F.3d 321, 334

(5th Cir. 2015).
       10 Id.


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relevant market or allege facts from which it would be plausible to infer that
Walgreens engaged in anticompetitive conduct. The complaint states only that
Walgreens expanded via “buyouts” and “forceouts,” and that Walgreens
considered buying Gurrola’s pharmacy. These conclusory allegations are
insufficient to show that Walgreens willfully acquired its market power or used
that market power for anticompetitive purposes.
       Third, Gurrola argues that the district court erred in dismissing his
breach-of-contract claim. Gurrola’s complaint alleged that he made an oral
contract with Walgreens in which the latter would pay $1.5 million over
multiple years to acquire his pharmacy. In Gurrola’s view, Walgreens breached
this contract when it backed out of the sale. However, any unwritten contract
that is “not to be performed within one year from the date of making the
agreement” is unenforceable under Texas’s statute of frauds.11 Thus, the
alleged multi-year oral contract was unenforceable, and the district court’s
dismissal of Gurrola’s breach-of-contract claim was proper.12
       Finally, Gurrola claims that he was entitled to a protective order against
Walgreens’ alleged harassment and stalking. However, the district court’s
jurisdiction over Gurrola’s motion for a restraining order ended when it
dismissed the entire case in which the motion was filed. It was therefore proper
for the court to deny the motion as moot.
       For these reasons, we affirm the judgment of the district court. We also
deny Gurrola’s “Motion to Reverse District Court’s Ruling,” which is
duplicative of his appeal.



       11TEX. BUS. & COM. CODE § 26.01(b)(6).
       12 On appeal, Gurrola makes a new allegation that Walgreens fraudulently
misrepresented the identity of its purported agent. This argument is waived because it was
not raised below and, in any case, Gurrola fails to allege the elements of a fraud claim. See
Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032–33 (5th Cir.
2010).
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