Tate

MEMORANDUM *

Plaintiffs-Appellants are Raymond Tate, Liberty Fuels, Inc., Dale Sobek, and 6000 S Corporation. They appeal the district court’s judgment in favor of defendant Pacific Gas & Electric Company (“PG & E”) dismissing plaintiffs’ action for alleged violations of the federal antitrust laws and RICO.

The district court properly granted the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss all of the antitrust claims except the claim for refusal to deal. The complaint failed adequately to allege the elements of a claim under any of the theories asserted in the dismissed claims.

The district court also properly granted summary judgment against the plaintiffs on the refusal to deal claim. The materials before the district court on the motion for summary judgment indisputably showed that the plaintiffs never filed any formal application for natural gas at any of the sites for which they claim a refusal to deal. Both a demand and refusal are required to make out a claim for refusal to deal, at least absent proof that such a request would be futile. Ostrofe v. H.S. Crocker Co., Inc., 740 F.2d 739, 743-44 (9th Cir.1984); Cleary v. Nat’l Distillers & Chem. Corp., 505…