Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

The EMPOWERMENT PROJECT, Plaintiff-Appellant,v.CBS, INC., Defendant-Appellee.

No. 89-56086.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.Decided March 14, 1991.

Appeal from the United States District Court for the Central District of California, No. CV-88-5552-HLH; Harry L. Hupp, District Judge, Presiding.

C.D. Cal.


Before HUG, CANBY and WIGGINS, Circuit Judges.


The Empowerment Project ("Project") appeals the district court's dismissal of its second amended complaint without leave to amend for failure to state a claim upon which relief can be granted. The complaint alleges that CBS, Inc. violated Secs. 1 and 2 of the Sherman Act. Because we find that the appellant has not alleged facts sufficient to constitute cognizable antitrust injury, we affirm the district judge's order.

As an absolute threshold to stating an antitrust claim, a party must allege "antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful." Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). This injury, which must result from the alleged antitrust violation, must be injury to "the market or to competition in general, not merely injury to individuals or individual firms...." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 812 (9th Cir. 1988); see also Les Shockley Racing v. Nat'l Hot Rod Ass'n, 884 F.2d 504, 508-09 (9th Cir. 1989); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 734-36 (9th Cir. 1987). The "failure to allege injury to competition is a proper ground for dismissal by judgment on the pleadings." McGlinchy, 845 F.2d at 813.

The allegations of the Project are merely conclusory statements without allegations of supporting facts.

This Circuit reviews the district court's denial of leave to amend for an abuse of discretion. Universal Mortg. Co., Inc. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir. 1986). Although leave to amend "shall be freely given when justice so requires," Fed. R. Civ. P. 15(a), it may be denied if the proposed amendment lacks merit or if granting leave would otherwise be futile. Id. This is the third complaint that has been dismissed; none having merit. The repeated failure to cure deficiencies by prior amendment is a valid reason for a judge to deny a party leave to amend. McGlinchy, 845 F.2d at 809-10.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3