NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN IRELAND, No. 18-35316

Plaintiff-Appellant, D.C. No. 6:16-cv-02054-JR

v.

MEMORANDUM*

BEND NEUROLOGICAL ASSOCIATES,

LLC, an Oregon limited liability company; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Stephen Ireland appeals pro se from the district court’s judgment dismissing

his action alleging federal and state law claims. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court’s dismissal under Federal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Ireland’s request for oral argument, set forth in his reply brief, is denied. Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.

2010). We affirm in part, vacate in part, and remand.

The district court properly dismissed Ireland’s claim of a per se violation of

§ 1 of the Sherman Act because Ireland failed to allege facts sufficient to state a

plausible claim. See id. at 341-42 (although pro se pleadings are construed

liberally, plaintiff must present factual allegations sufficient to state a plausible

claim for relief); Austin v. McNamara, 979 F.2d 728, 738 (9th Cir. 1992)

(discussing requirements for per se violation under the Sherman Act).

The district court did not abuse its discretion by denying leave to amend the

per se Sherman Act claim because amendment would have been futile. See

Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (explaining

that “[a] district court acts within its discretion to deny leave to amend when

amendment would be futile”).

However, the district court erred by dismissing Ireland’s “rule of reason”

Sherman Act claim. Liberally construed, the proposed second amended complaint

contains sufficient allegations that defendants’ decision to terminate call coverage

for Ireland’s patients was intended to restrain competition unreasonably and

actually caused injury to competition that harmed consumer welfare. Ireland

alleged that defendants have refused service to lower-paying patients and

procedures, and that he was the only neurologist who saw patients whom

2 18-35316 defendants refused to see. See Austin, 979 F.2d at 739 (requirements for a “rule of

reason” violation); see also Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 848

(9th Cir. 1996) (“[W]hile conduct that eliminates rivals reduces competition,

reduction of competition does not invoke the Sherman Act until it harms consumer

welfare.” (citation and internal quotation marks omitted)); Pinhas v. Summit

Health, Ltd., 894 F.2d 1024, 1032 (9th Cir. 1989) (discussing allegation regarding

plaintiff’s provision of services at a lower rate than competitors; concluding that

plaintiff adequately pleaded injury to competition).

The district court dismissed Ireland’s intentional interference with economic

relations (“IIER”) claim because the allegations regarding the requisite “improper

means” or “improper purpose” were directly linked to Ireland’s Sherman Act

claim. Because we conclude that the district court erred by dismissing the “rule of

reason” Sherman Act claim, we conclude that the district court erred by dismissing

Ireland’s IIER claim. See Kraemer v. Harding, 976 P.2d 1160, 1170 (Or. Ct. App.

1999) (elements of an IIER claim).

In sum, we vacate and remand as to Ireland’s “rule of reason” Sherman Act

claim and IIER claim under Oregon law. We affirm dismissal of Ireland’s per se

Sherman Act claim.

In light of our disposition, we do not consider Ireland’s contentions

regarding judicial notice or the incorporation by reference doctrine.

3 18-35316 The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

4 18-35316