NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN IRELAND, 

Plaintiff-Appellant, 

 v. 

BEND NEUROLOGICAL ASSOCIATES, 

LLC, an Oregon limited liability company; 

et al., 

Defendants-Appellees.

No. 18-35316 

D.C. No. 6:16-cv-02054-JR 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Stephen Ireland appeals pro se from the district court’s judgment dismissing 

his action alleging federal and state law claims. We have jurisdiction under 28 

U.S.C. § 1291. We review de novo the district court’s dismissal under Federal 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2). Ireland’s request for oral 

argument, set forth in his reply brief, is denied. 

FILED

JAN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-35316 

Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 

2010). We affirm in part, vacate in part, and remand.

The district court properly dismissed Ireland’s claim of a per se violation of 

§ 1 of the Sherman Act because Ireland failed to allege facts sufficient to state a 

plausible claim. See id. at 341-42 (although pro se pleadings are construed 

liberally, plaintiff must present factual allegations sufficient to state a plausible 

claim for relief); Austin v. McNamara, 979 F.2d 728, 738 (9th Cir. 1992) 

(discussing requirements for per se violation under the Sherman Act).

The district court did not abuse its discretion by denying leave to amend the 

per se Sherman Act claim because amendment would have been futile. See

Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (explaining 

that “[a] district court acts within its discretion to deny leave to amend when 

amendment would be futile”).

However, the district court erred by dismissing Ireland’s “rule of reason” 

Sherman Act claim. Liberally construed, the proposed second amended complaint

contains sufficient allegations that defendants’ decision to terminate call coverage 

for Ireland’s patients was intended to restrain competition unreasonably and 

actually caused injury to competition that harmed consumer welfare. Ireland 

alleged that defendants have refused service to lower-paying patients and 

procedures, and that he was the only neurologist who saw patients whom 
3 18-35316 

defendants refused to see. See Austin, 979 F.2d at 739 (requirements for a “rule of 

reason” violation); see also Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 848 

(9th Cir. 1996) (“[W]hile conduct that eliminates rivals reduces competition, 

reduction of competition does not invoke the Sherman Act until it harms consumer 

welfare.” (citation and internal quotation marks omitted)); Pinhas v. Summit 

Health, Ltd., 894 F.2d 1024, 1032 (9th Cir. 1989) (discussing allegation regarding 

plaintiff’s provision of services at a lower rate than competitors; concluding that 

plaintiff adequately pleaded injury to competition). 

The district court dismissed Ireland’s intentional interference with economic 

relations (“IIER”) claim because the allegations regarding the requisite “improper 

means” or “improper purpose” were directly linked to Ireland’s Sherman Act 

claim. Because we conclude that the district court erred by dismissing the “rule of 

reason” Sherman Act claim, we conclude that the district court erred by dismissing 

Ireland’s IIER claim. See Kraemer v. Harding, 976 P.2d 1160, 1170 (Or. Ct. App. 

1999) (elements of an IIER claim). 

In sum, we vacate and remand as to Ireland’s “rule of reason” Sherman Act 

claim and IIER claim under Oregon law. We affirm dismissal of Ireland’s per se 

Sherman Act claim.

In light of our disposition, we do not consider Ireland’s contentions

regarding judicial notice or the incorporation by reference doctrine.
4 18-35316 

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.