                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 21 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED FOOD & COMMERCIAL                         No. 09-56118
WORKERS CENTRAL
PENNSYLVANIA & REGIONAL                          D.C. No. 08-ML-01934 PSG
HEALTH & WELFARE FUND, et al.,                   (AGRx)

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

AMGEN, INC.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                      Argued and Submitted October 8, 2010
                              Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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      Appellants’ complaint cannot survive a motion to dismiss because it failed to

plead its allegations of fraud under RICO, 18 U.S.C. § 1962(c), and California’s

Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., with

particularity. See Fed. R. Civ. P. 9(b); see also Kearns v. Ford Motor Co., 567

F.3d 1120, 1124-25 (9th Cir. 2009); Alan Neuman Prods., Inc. v. Albright, 862

F.2d 1388, 1392 (9th Cir. 1988). The complaint did not identify statements or

representations made by Amgen that were literally false or misleading at the time

they were made, as required in a civil RICO action based on mail and wire fraud.

See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1399-1401

(9th Cir. 1986); see also 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud),

1962(c) (RICO). Nor did the complaint identify material omissions in derogation

of an independent statutory or fiduciary duty to disclose. Cal. Architectural Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1987).

Though the complaint alleged that Amgen concealed adverse test results while

promoting Aranesp and Epogen for various off-label uses, the complaint did not

identify any concealed study results that involved the drugs and uses that Amgen is

alleged to have directly promoted, and Appellants confirmed at oral argument that

there were none.




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      Moreover, the complaint failed to plead a cognizable theory of proximate

causation that links Amgen’s alleged misconduct to Appellants’ alleged injury.

Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 654-55 (2008). Instead, the

complaint proffered an attenuated causal chain that involved at least four

independent links, namely, (1) the USP-DI’s listing of Aranesp for anemia of

cancer, (2) Medicare’s decision to cover Aranesp for anemia of cancer, (3) third-

party payors’ decision to cover Aranesp for anemia of cancer (in addition to

covering Aranesp for anemia in heart failure patients and cancer directly, and

Epogen for all of these uses), and (4) doctors’ decisions to prescribe Aranesp and

Epogen for these uses. This causal theory is too attenuated to satisfy the Supreme

Court’s proximate causation requirement in the RICO context. See Hemi Group,

LLC v. City of New York, 130 S. Ct. 983, 989 (2010) (quoting Holmes v. Sec.

Investor Prot. Corp., 503 U.S. 258, 268, 271, 274 (1992)).

      The complaint also failed to satisfy Rule 9(b) with respect to its UCL claims,

Kearns, 567 F.3d at 1125, because it did not explain why Amgen’s conduct was

fraudulent, id., or allege an adequate theory of causation or reliance. In re Tobacco

II Cases, 46 Cal. 4th 298, 306 (2009); see also Hall v. Time Inc., 158 Cal. App.

4th. 847, 855-56 & nn. 2-3 (Ct. App. 2008). Because the complaint sounded in

fraud, all of its allegations are subject to Rule 9(b)’s pleading requirements.


                                           3
Kearns, 567 F.3d at 1125; Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04

(9th Cir. 2003). Consequently, the district court properly dismissed the complaint

in its entirety, including its UCL “unlawful” and “unfair” claims.

      Appellants’ failure to add the requisite particularity to the complaint, even

after the district court previously granted Appellants leave to amend with specific

instructions about how to cure the defects in the complaint, is “‘a strong indication

that the plaintiffs have no additional facts to plead.’” Zucco Partners, LLC v.

Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (quoting In re Vantive Corp.

Sec. Litig., 283 F.3d 1079, 1098 (9th Cir. 2002)). Moreover, a district court’s

discretion to deny leave to amend is “particularly broad” where, as here, the

plaintiff has previously filed an amended complaint. Chodos v. West Publ’g Co.,

292 F.3d 992, 1003 (9th Cir. 2002) (quoting Griggs v. Pace Am. Grp., Inc., 170

F.3d 877, 879 (9th Cir. 1999)) (internal quotation marks omitted). Because

Appellants have previously failed to remedy the defects in their complaint, and

those defects appear to be incurable, Leadsinger, Inc. v. BMG Music Publ’g, 512

F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)),

the district court did not abuse its discretion in dismissing Appellants’ complaint

with prejudice.

      AFFIRMED.


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