UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BRISTOW ENDEAVOR HEALTHCARE, LLC, Plaintiff - Appellant,

v. BLUE CROSS AND BLUE SHIELD ASSOCIATION; HEALTH CARE SERVICE CORPORATION, Defendants - Appellees, and AHS HILLCREST HEALTHCARE SYSTEM, LLC; AHS HILLCREST MEDICAL CENTER, LLC; AHS MEDICAL HOLDINGS LLC; ARDENT HEALTH PARTNERS, LLC; ARDENT MEDICAL SERVICES, INC., Defendants. No. 16-5149 (D.C. No. 4:16-CV -00057-CVE-PJC) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , McKAY , and HARTZ , Circuit Judges.

________________ _________________ Bristow Endeavor Healthcare, LLC, (“Bris tow”) appeals a district court order granting motions to dismiss filed by Blue Cross and Blue Shield Association

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 31, 2017 Elisabeth A. Shumaker Clerk of Court2 (“BCBSA”) and Health Care Service Corpor ation (“HCSC”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I Bristow is a healthcare company that operates thre e facilities in northeast Oklahoma: Bristow Medical Center (“ BMC”), Cimarron Healthcare Center (“Cimarron”), and the Center for Ort hopaedic Reconstruction and Excellence (“CORE”). BCBSA is a federation of inde pendent Blue Cross and Blue Shield companies, including HCSC, which does busin ess as Blue Cross Blue Shield of Oklahoma. Bristow alleges that HCSC ex ercises market dominance in the northeast Oklahoma market, with at least 64% of the market for h ealth insurers. BMC is an in-network provider with HCSC. In-network providers receive contractually set payments fo r healthcare services offered to individuals with HCSC plans. In 2013, Bristow requested that Ci marron be added to the existing in-network provider agreement with BMC. Following negotiations, the parties agreed to add Cimarron and adopt a blended rate for reimbur sement payments to both facilities. In March 2014, Bristow and HCSC executed a BlueTraditional Netw ork Participating Hospital Agreement (the “Provider Agreem ent”), which applied to both BMC and Cimarron. Bristow states that it had an “implicit understanding” that the Provider Agreement would also include all future Bristow entities. Ho wever, the Provider Agreement specifically states that additional entities ma y be added only with the consent of HCSC.3 In March 2015, Bristow requested th at HCSC add Bristow’s new facility, CORE, to the Provider Agreement. HCSC sent Bristow a credentialing application for CORE. After requesting additional info rmation, HCSC informed Bristow that it would not agree to add CORE to the Provider Agreement, but it o ffered to enter into a separate agreement with th e facility. The parties c ontinued discussions through December 2015 but did not reach an agreement. Bristow alleges that HCSC refused to gr ant CORE in-network status as a result of a conspiracy to restrain trade with Hillcre st Healthcare System (“Hillcrest”) and Ardent Health Services (“Ardent”). Hillcres t operates several health care facilities in northeast Oklahoma and is Bristow’s largest competitor. Ardent owns Hillcrest. Bristow alleges that Hillcrest and its affiliated companie s exercise market dominance in the northeast Oklahoma mark et. But Bristow merely characterizes Hillcrest’s market share as “high” without any partic ular factual allegations. Bristow also alleges that HCSC reimburses Hillcrest at higher rates than thos e offered to BMC and Cimarron. It claims that th e purpose of the conspiracy is to prevent CORE from fully competing with Hillcrest in the north east Oklahoma healthca re market, thereby allowing Hillcrest to main tain and expand its market share in that area. In support of its conspiracy claim, Bris tow alleges that repr esentatives of Tulsa Spine & Specialty Hospital (“Tulsa Spine”), a Hillcr est facility, met with representatives of Hillcres t and Ardent on a weekly ba sis between 2011 and 2015 to “discuss affairs, including CORE.” In the summer of 2014, Tulsa Spine hired a private investigator to look into indivi duals involved in the start-up of CORE.4 Bristow further alleges, on information and be lief, that HCSC partic ipated in some of these meetings and related phone calls, dur ing which it discussed ways to prevent CORE from becoming an in-network provider. Bristow provides two particular alle gations in support of its claim of conspiracy. First, it alleges, on informati on and belief, that a “r epresentative of Blue Cross Blue Shield” 1 told a Bristow representative CO RE was being denied a contract for “CORE’s own protection” a nd that “if Hillcrest tried to open a facility in Bristow, we [Blue Cross Blue Shield] would ‘protect you [Bristow].’” 2 Second, Bristow claims that sometime between December 2014 and Ja nuary 2015, Eddie Gwock, an Ardent representative, told Tulsa Spine that “he could leverage his relationship with Blue Cross Blue Shield to keep CORE out of the network.” Gwock “also reported that he spoke with Blue Cross Blue Shie ld, and in connection with the ‘strategic initiative’ between Blue Cross Blue Shield, [Ardent, and H illcrest], Blue Cross Blue Shield would be able to k eep CORE out of network.” Bristow filed suit against HCSC, BCBS A, Ardent, Hillcrest, and related entities advancing four claims: (1) violation of § 1 of the Sherman Act, 15 U.S.C § 1; (2) state law conspiracy in violation of Okla. Stat. tit. 79, § 203(A); (3) attempt to monopolize in violation of Okla. Stat . tit. 79, § 203(B); and (4) tortious interference with business re lations. The district court granted motions to dismiss

1 In the complaint, Bristo w uses “Blue Cross Blue Sh ield” to refer collectively to HCSC and BCBSA.

2 BMC is located in Bristow, Oklahoma.5 filed by HCSC and BCBSA. Bristow then voluntarily dismissed its claims against the remaining defendants with pr ejudice and filed a timely appeal. II We review a Fed. R. Civ. P. 12(b)(6 ) dismissal de novo, accepting as true all well-pled factual allegations in the compla int and viewing them in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Be ll Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausibl e if the plaintiff has pled “factual content that allows the court to draw the re asonable inference that the defendant is liable for the mi sconduct alleged.” Id. A co mplaint that “tenders naked assertions devoid of further fa ctual enhancement” is insuffi cient. Id. (quotations and alteration omitted). Further, if a complaint alle ges “facts that are merely consistent with a defendant’s liability, it stops short of the lin e between possibility and plausibility of entitlemen t to relief.” Id. (quotations omitted). A Section 1 of the Sherman Act makes it i llegal to engage in a “conspiracy[ ] in restraint of trade or commerce.” 15 U.S.C. § 1. The Act “does not prohibit [all] unreasonable restraints of tr ade . . . but only restraints effected by a contract, combination, or conspiracy.” Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 775 (1984). The “crucial question is whet her the challenged anticompetitive conduct6 stems from independent decision or from an ag reement, tacit or express.” Twombly, 550 U.S. at 553 (quotations and alteration omitted). To prevail on a § 1 claim, a plaintiff “must include evidence tending to exclude the possibility of independent action.” Id. at 554. A “naked assertion of conspiracy in a § 1 complaint . . . gets the complaint close to st ating a claim, but without some further factual enhancement it stops short of the line between possib ility and plausibility .” Id. at 557. When a defendant asserts complex claims against multiple defendants, it is “particularly important” to “make clear exactly who is alleged to have done what to whom, to provide each individual with fair no tice as to the basis of the claims against him or her, as distinguished from collective allegations.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (emphases omitted) . “The Twombly Court was particularly critical of complain ts that mentioned no specific time, place, or person involved in the alleged conspiraci es.” Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1248 ( 10th Cir. 2008) (quotation omitted). Although it is a reasonably cl ose question, we agree with the district court that the complaint does not plausibly allege a conspiracy with respect to HCSC and BCBSA. An inference of conspiracy is impermissible if the defendants “had no rational economic motive to c onspire, and if their conduct is consistent with other, equally plausible explanations .” Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 596 (1986). As the district court explaine d, Hillcrest and Ardent may have been motivated to undermine Bristo w as a direct competitor, but HCSC—a purchaser of healthcare servic es—would be acting directly against its own interest if7 it agreed to reduce competition in the healthcare provider ma rket, particularly in light of Bristow’s allegation that HCSC pays Hillcrest higher reimbursement rates. The complaint does not advance any reas on HCSC would agree to act against its self-interest and it does not identify any benefit that HCSC obtained from Hillcrest or Ardent as part of the al leged conspiracy. A complaint is insufficient if the alleged “behavior was as likely to have been th e result of legal, un ilateral action as the product of illicit collusion.” Kan. Pe nn Gaming, 656 F.3d at 1214; see also Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 761 (1984) (noting that a company “generally has a right to deal, or re fuse to deal, with w homever it likes, as long as it does so independently”). On a ppeal, Bristow suggests that HCSC acted at the behest of Hillcrest because it needed to maintain H illcrest’s business. But the complaint does not contain any particularized allegations pe rmitting an inference that Hillcrest possessed market pow er such that it could compel HCSC to act against its own interest. See Buccaneer Energy (USA) Inc. v. Gunnison Energy Corp., 846 F.3d 1297, 1312 (10th Cir. 2017) (a plaintiff can show ma rket power by “pointing to the defendant’s share of the rele vant market and perhaps barri ers to entry” (quotation and alteration omitted)). Bristow relies heavily on the statements attributed to Gwock . Although those statements make a conspiracy possible, we agree with the di strict court that they are insufficient. Gwock claimed that he could leverage his relationship with HCSC to keep CORE out of network, and he later reported that CORE would indeed not join the HCSC network. But there are no alle gations detailing who Gwo ck dealt with at8 HCSC, what was agreed to, or why HCSC agreed to harm it self. In light of HCSC’s rational economic motives not to engage in this type of agreement, we think such particularity is necessary. See Mats ushita Elec. Indus., 475 U.S. at 596-97. In addition to Gwock’s statement, Br istow highlights the comments of an unidentified representative of either HCSC or BCBSA, who stated that CORE was denied in-network status fo r its “own protection” and i ndicated that Bristow would similarly be protected if Hi llcrest attempted to open a f acility in areas where Bristow operates. Assuming that thes e statements evince a prefer ence by HCSC to limit its network by geographical sub -regions, it does not sugge st coordination between HCSC and Hillcrest. To th e contrary, the unidentified representative apparently offered to “protect” Bristo w unilaterally, without any proposed agreement with Bristow. If HCSC was willing to take un ilateral action to “pro tect” Bristow, it may well have done so with re spect to Hillcrest. See Tw ombly, 550 U.S. at 554 (a plaintiff “must include evidence tending to exclude the possibility of independent action”). Absent plausible allegations th at HCSC or BCBSA conspired to restrain trade, Bristow’s § 1 Sherman Act and stat e law conspiracy cl aims were properly dismissed. 3

3 The district court concluded Bristow’s state law conspiracy claim failed for the same reasons as its Sher man Act claim. Bristow does not contest that conclusion on appeal. See Green Country Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275, 1281 (10th Cir. 2004) (“The Oklahoma An titrust Reform Act is construed in accordance with federal antitr ust law.”); see also Okla. Stat. tit. 79, § 212 (“The provisions of this act sha ll be interpreted in a manne r consistent with Federal Antitrust Law 15 U.S.C., Secti on 1 et seq. . . . .”).9 B Under Oklahoma law, “[i]t is unlawful fo r any person to monopolize, attempt to monopolize, or conspire to monopolize any part of tr ade or commerce.” Okla. Stat. tit. 79, § 203(B). Bristow asserts a claim for attempted monopolization, which requires proof of: “(1) relevant market (including geographic ma rket and relevant product market); (2) dangerous probability of success in monopolizing the relevant market; (3) specific intent to monopolize; and (4) conduct in furtherance of such an attempt.” TV Commc’ns Networ k, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1025 (10th Cir. 1992). In its complaint, Bristow alleges that Hillcrest and Ardent, with the assistance of HCSC and BCBSA “are attempting to mo nopolize or conspiri ng to monopolize the market for inpatient and outpatient h ealthcare services in the Northeast Oklahoma/Tulsa area.” Bristo w cites to the allegation that HCSC has a 64% share of the health insurance market in northeast Oklahoma, but th e complaint does not allege attempted monopolization of the health in surance market. In stead, it alleges attempted monopolization of the market to de liver healthcare serv ices to patients. And although the complaint summarily asse rts that Hillcrest “exercises market dominance,” it does not contain any well-pled allegations to support that assertion. See Iqbal, 556 U.S. at 678 (holding “naked assertions devoid of further factual enhancement” are insufficient (quotations and alteration omitted)). Accordingly the complaint fails to plausibly allege a dangerous probability that the healthcare market in northeast Oklahoma would be monopolized.10 Bristow also suggests that HCSC, as a purchaser of healthcare services, may be exercising monopsony buying power. But we agree with the distri ct court that this monopsony theory was not fairly pled in th e complaint. See Maldonado v. City of Altus, 433 F.3d 1294, 1314 (10th Cir. 2006) (d eclining to consider a theory that did not appear in the complaint), overruled on other grounds as rec ognized by Metzler v. Fed. Home Loan Bank of Topeka, 464 F. 3d 1164, 1171 n.2 (10th Cir. 2006). C Lastly, Bristow appeals the dismissal of its claim for tortious interference with a business relation. To prevail on such a claim, a plai ntiff must show: “1) interference with a busin ess or contractual right; 2) malicious and wrongful interference that is neither justified, privileged, nor excusable; and 3) damage proximately sustained as a resu lt of the interference.” Tuffy ’s, Inc. v. City of Okla. City, 212 P.3d 1158, 1165 (Okla. 2009). The complaint alleges th at Bristow, BMC, Cimarron, and CORE “all had business and contractual rights,” and that through tortious conduct “described at length therein, the Defendants have interf ered with said business and contractual rights.” We agree with the district court th at this claim presents nothing more than “a formulaic recitation of the elem ents of a cause of action,” which the Court rejected in Iqbal. 556 U.S. at 678. It does not identif y what contracts or relationships HCSC or BCBSA might have harmed, and accordingly does not provide those parties with sufficient notice to defend against this claim.11 III For the foregoing reasons, the judg ment of the district court is AFFIRMED

.
Entered for the Court

Carlos F. Lucero Circuit Judge