Charles Heisen, Plaintiff-appellant, v. Pacific Coast Building Products, Inc., a California Company;david Lucchetti; Albert K. Mueller; Jeanrodney, Esq.; Mark Begnaud, Esq.,defendants-appellees, 26 F.3d 130 (9th Cir. 1994)

MEMORANDUM^** 

Charles Heisen appeals pro se the district court's dismissal of his antitrust action under Fed. R. Civ. P. 12(b) (6) for failure to state a claim. We review de novo, Les Shockley Racing, Inc. v. National Hot Rod Ass'n, 884 F.2d 504, 507 (9th Cir. 1989), and we affirm.

The discord between the parties to this appeal dates back to July 30, 1988, when Heisen hired a bulldozer and directed its operator to sever the primary commercial access road to a plant owned by Pacific Coast Building Products, Inc. ("PABCO"). PABCO sued Heisen and his employer, International Silica Corporation, in federal court. In March 1991, the district court awarded PABCO $40,000 in compensatory damages and $5,000 in punitive damages. In April 1991, Heisen filed a complaint in Nevada state court alleging fifteen state antitrust claims against the same defendants whom he sued in this action. In November 1991, the state court entered judgment in favor of the defendants.

In March 1992, Heisen filed the complaint that is the subject of this appeal. The allegations in Heisen's complaint are identical to those asserted in the state court action, except that Heisen claimed violations of federal antitrust law rather than state antitrust law. The defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief could be granted.¹  After a hearing, the district court granted the defendants' motion and dismissed the complaint with prejudice. This appeal followed.

Heisen contends that the district court erred by dismissing his complaint pursuant to Rule 12(b) (6). We disagree.

Heisen's complaint does not specify the section of the Sherman Act upon which his claims are based.²  Nevertheless, to state a claim under either section 1 or section 2 of the Sherman Act, a plaintiff must allege antitrust injury, i.e. "injury to the market or to competition in general, not merely injury to individuals or individual firms [.]" McGlinchy v. Shell Chem. Co., 845 F.2d 802, 812 (9th Cir. 1988); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 734 (9th Cir. 1987) (" [i]ndispensable to any section 1 claim is an allegation that competition has been injured rather than merely competitors"); see also Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962) (the antitrust laws were enacted for the "protection of competition, not competitors "). "Ordinarily, the factual support needed to show injury to competition must include proof of the relevant geographic and product markets and demonstration of the restraint's anticompetitive effects within those markets." Les Shockley Racing, 884 F.2d at 508. Moreover, " ' [t]he pleader may not evade these requirements by merely alleging a bare legal conclusion; if the facts do not at least outline or adumbrate a violation of the Sherman Act, the plaintiff [ ] will get nowhere merely by dressing them up in the language of antitrust.' " Rutman, 829 F.2d at 736 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054 (1985)).

Here, Heisen's complaint alleges that the defendants' actions have injured his own business interests. But the complaint is devoid of any facts that demonstrate an "antitrust injury." See McGlinchy, 845 F.2d at 811. Heisen's complaint does not allege a reduction of competition in the gypsum and silica markets in general; instead, he alleges injury only to his own position as a competitor in these markets. Such allegations are insufficient to state a claim under the Sherman Act. See Les Shockley Racing, 884 F.2d at 508 (although proof of plaintiffs' allegations of market exclusion and resulting loss of income would establish harm to their business interests, such proof would not show injury to competition in the market as a whole); McGlinchy, 845 F.2d at 811-12; Rutman, 829 F.2d at 736; Car Carriers, 745 F.2d at 1109 (" [t]ortious activities in the form, for example, of unfair competition do not contravene the antitrust laws unless accompanied by the requisite anticompetitive effect").³  Accordingly, the district court correctly determined that Heisen's complaint failed to state a claim upon which relief could be granted.⁴ 

Heisen next argues that he should have been allowed to amend his complaint before it was dismissed. This argument fails.

When a complaint is dismissed for failure to state a claim, leave to amend should be granted unless it can be determined that no possible amendment would cure the complaint's deficiencies. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 112 S. Ct. 332 (1991). Moreover, an "amended complaint may only allege other facts consistent with the challenged pleading." Id. at 297 (quotation omitted).

Our review of Heisen's complaint and its attachments convinces us that no amendment would produce a federal claim in this case.⁵  As we already have explained, Heisen did not allege that the defendants' actions were intended to injure, or did injure, competition in the silica or gypsum market. To the contrary, Heisen specifically alleged that the defendants' actions were motivated by their animosity toward Heisen, and that they intended to prevent him from becoming a competitor in these markets. Because " [i]t would not be possible for [Heisen] to amend his complaint to allege a completely new injury ... without contradicting any of the allegations of his original complaint [,]" the district court did not err by dismissing Heisen's complaint without giving him leave to amend. See id. at 296-97; cf. Rutman, 829 F.2d at 736 (affirming Rule 12(b) (6) dismissal of antitrust complaint because "the specific intent to harm competition [was] insufficiently pleaded"); Car Carriers, 745 F.2d at 1106 (" [w]hen the requisite elements are lacking, the costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint").⁶ 

Accordingly, we affirm the district court's judgment.⁷ 

AFFIRMED.