09-4406-cv
RxUSA Wholesale, Inc. v. Alcon Laboratories, Inc.

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
of August, two thousand ten.

Present:
               ROBERT A. KATZMANN,
               PETER W. HALL,
                          Circuit Judges.*


________________________________________________

RXUSA WHOLESALE INC.,

               Plaintiff-Appellant,

                      v.                                           No. 09-4406-cv

ALCON LABORATORIES, et al.,

            Defendants-Appellees.
________________________________________________

For Plaintiff-Appellant:                     MICHAEL L. LEVINE , Levine & Associates, P.C.,
                                             Scarsdale, NY



       *
        The Honorable Paul G. Gardephe, originally a member of the panel, recused himself
from consideration of this matter. The remaining members of the panel, who are in agreement,
have decided the case pursuant to 2d Cir. IOP E(b).
For Defendants-Appellees:                      ROBERT A. MILNE (Martin M. Toto, Bryan D. Gant,
                                               on the brief), White & Case LLP, New York, NY**
                                                               for Manufacturer Appellees.

                                               MARK A. ROBERTSON , Fulbright & Jaworski L.L.P.,
                                               New York, NY
                                                           for Wholesaler Appellees.

                                               TERRENCE J. CONNOLY (Joseph M. Salama, on the
                                               brief), Latham & Watkins LLP, New York, NY
                                                              for McKesson Corporation.


       Appeal from the United States District Court for the Eastern District of New York
(Hurley, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Plaintiff-appellant RxUSA, Inc. appeals from a judgment entered September 24, 2009

(Hurley, J.), granting defendants-appellants’ motion to dismiss. RxUSA is a secondary

wholesaler of pharmaceutical products and alleges that by refusing to sell pharmaceutical

products to it the Manufacturer and Authorized Wholesaler defendants violated Sections 1 and 2

of the Sherman Act. On appeal, RxUSA argues that the district court incorrectly dismissed

RxUSA’s claims under the Sherman Act, and abused its discretion in denying RxUSA leave to

amend its complaint. We assume the parties’ familiarity with the facts and procedural history of

this case.

        Largely for the reasons stated by the district court in its comprehensive opinion, we

affirm. RxUSA’s Section 1 claim against the Manufacturers fails because RxUSA’s assertion of


        **
           Because of the large number of law firms and attorneys representing defendants in this
case, the full list of attorneys and law firms is not listed here. A comprehensive list of all parties
and attorneys involved in this litigation can be found on the public docket for this case.

                                                 -2-
an agreement among the Manufacturers is entirely conclusory and RxUSA does not place its

allegations of parallel conduct in a context that suggests a prior agreement. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556-57 (2007). The only evidence RxUSA points to as suggesting a

prior agreement is RxUSA’s contention that the reason several of the Manufacturers gave for

refusing to sell to RxUSA—that they had adequate distribution networks—was a lie. The mere

fact that RxUSA could not obtain all of the pharmaceuticals that it desired to sell, however, does

not demonstrate that the Manufacturers did not have adequate distribution networks. Likewise,

RxUSA’s Section 1 claim against the Authorized Wholesalers fails because RxUSA’s allegation

of an agreement is entirely conclusory, and the alleged parallel activities of the Authorized

Wholesalers, “when viewed in light of common economic experience,” could “just as well be

independent action.” Id. at 556-57. As competitors of RxUSA in the wholesale pharmaceutical

products market, each Authorized Wholesaler faced independent incentives not to sell to

RxUSA.

       RxUSA’s Section 2 claims also fail for the reasons stated by the district court. A refusal

to deal with competitors does not constitute anticompetitive conduct in violation of Section 2

except in limited circumstances not present here with respect to either the Manufacturers or

Authorized Wholesalers. See Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP,

540 U.S. 398, 407-09 (2004). RxUSA’s Section 2 claims against the Authorized Wholesalers

and defendant McKesson fail for the additional reason that RxUSA has not alleged that any

individual Authorized Wholesaler has a monopoly, see H.L. Hayden Co. of N.Y., Inc. v. Siemens

Med. Sys., Inc., 879 F.2d 1005, 1018 (2d Cir. 1989), and its allegations of a “shared monopoly”

under Section 2 merely repeat its failed arguments under Section 1, see FLM Collision Parts,


                                                -3-
Inc. v. Ford Motor Co., 543 F.2d 1019, 1030 (2d Cir. 1976). Further, to the extent that such a

claim is viable, RxUSA’s essential facilities claim fails against the Manufacturers, at the very

least because RxUSA is able to obtain pharmaceutical products from other sources, albeit at a

higher price.

       Finally, the district court did not abuse its discretion in denying RxUSA leave to amend

its complaint. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 242 (2d Cir. 2007).

RxUSA did not seek leave to amend its complaint in the district court, see Shields v. Citytrust

Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994) (“[W]e do not deem it an abuse of the district

court’s discretion to order a case closed when leave to amend has not been sought.”), and we

conclude that any amendment would be futile, see, e.g., Burch v. Pioneer Credit Recovery, Inc.,

551 F.3d 122, 126 (2d Cir. 2008) (concluding that where a plaintiff’s proffered amendments

would not affect the Court’s analysis, amending the complaint would be futile).     We have

reviewed RxUSA’s remaining arguments and conclude that they lack merit. Accordingly, for the

foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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