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NOT FOR PUBLICATION OCT 21 2010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.
1
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.
2
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.
4