NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELSEY K., individually and on behalf of 

all others similarly situated, 

Plaintiff-Appellant, 

 v. 

NFL ENTERPRISES, LLC; et al., 

Defendants-Appellees.

No. 17-16508 

D.C. No. 3:17-cv-00496-WHA 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Submitted December 19, 2018**

San Francisco, California

Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.

Plaintiff-Appellant Kelsey K. was employed as a cheerleader for the San 

Francisco 49ers’ cheerleading squad, the Gold Rush Girls, from May or July 2013 

 

* 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).

FILED

DEC 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

through February 2014.1 Kelsey filed a complaint alleging violations of the 

Sherman Act, 15 U.S.C. § 1, and California’s Cartwright Act, Cal. Bus. & Prof. 

Code § 16720, against twenty-seven of the National Football League teams (the 

“NFL Member Teams”) who, during the proposed class period, employed 

cheerleaders, and seeking certification of a class of current and former NFL 

cheerleaders allegedly harmed by those violations. Kelsey alleges that the NFL 

Member Teams conspired to suppress cheerleaders’ wages and to prevent 

cheerleader recruitment. Kelsey appeals the district court’s: (1) dismissal of the 

complaint for failure to state a claim; (2) denial of leave to amend as futile; and (3) 

denial of discovery. We have jurisdiction under 28 U.S.C. § 1291, and we affirm 

the district court’s rulings.2 

A dismissal for failure to state a claim under Federal Rule of Civil Procedure 

12(b)(6) is reviewed de novo. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th 

Cir. 2011). All allegations of material fact are taken as true and construed in the 

light most favorable to the nonmoving party. AE ex rel. Hernandez v. Cty. of 

Tulare, 666 F.3d 631, 636 (9th Cir. 2012). Denial of leave to amend is improper 

unless, upon de novo review, it is clear that the complaint could not be saved by 

 

1 Kelsey’s complaint alleges both date ranges. 

2 The facts and procedural history are familiar to the parties and are 

restated here only as necessary to resolve the issues. 
3

any amendment. Id. Discovery rulings are reviewed for abuse of discretion. 

Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004). 

Section 1 of the Sherman Act prohibits unreasonable restraints on trade. See

Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 (1988). To prove per 

se illegality, a plaintiff must allege “evidentiary facts which, if true, will prove: (1) 

a contract, combination or conspiracy among two or more persons or distinct 

business entities; (2) by which the persons or entities intended to harm or restrain 

trade or commerce . . . ; (3) which actually injures competition.” Kendall v. Visa 

U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (citations omitted). 

Kelsey’s complaint alleges the existence of two agreements amongst the 

defendants that she argues are per se illegal, namely a no-poaching agreement and 

a wage fixing agreement. Kelsey fails to plausibly allege per se illegality of either 

agreement. Her assertions of direct evidence are deficient for two reasons. 

First, Kelsey fails to plausibly allege the existence of an agreement or 

conspiracy to restrain trade. Her allegations largely center on an anti-tampering 

provision that has been in the NFL’s constitution and bylaws for decades (which 

broadly prevents NFL teams from tampering with other teams’ employees while 

they are under contract), and the fact that NFL executives and team owners reratified that provision annually. However, those allegations “just as easily suggest 

rational, legal business behavior,” as they do the existence of an agreement among 
4

the defendants to restrain trade. Name.Space, Inc. v. Internet Corp. for Assigned 

Names & Nos., 795 F.3d 1124, 1130 (9th Cir. 2015) (citations omitted). 

Second, Kelsey failed to allege any facts showing that the NFL Member 

Teams intended to harm or restrain trade. Kelsey asserts that NFL executives’

meeting at annual events, including the Super Bowl, evince conspiratorial intent.

However, the mere fact that these meetings occurred, at most, shows opportunity, 

not intent. These allegations, again, suggest rational, legal business behavior, not a 

violation of the antitrust laws. Id. 

Similarly, Kelsey’s assertions of circumstantial evidence are inadequate to 

sustain a claim for relief. To plead a conspiracy through circumstantial evidentiary 

facts, a plaintiff must allege both (i) actual parallel conduct and (ii) additional 

“plus factors” to “nudge[] the[] claims across the line from conceivable to 

plausible[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[P]lus factors 

are economic actions and outcomes that are largely inconsistent with unilateral 

conduct but largely consistent with explicitly coordinated action.” In re Musical

Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1194 (9th Cir. 2015) (citation 

omitted). 

Kelsey alleges that during her employment as a cheerleader for the 49ers, 

she was paid $125.00 per game, not paid for time spent rehearsing, and was paid 

for working at mandatory community outreach events only in limited 
5

circumstances. She alleges the “low, flat fee” was parallel to that paid by four 

other teams, and asserts several “plus factors.” However, her alleged “plus 

factors” are largely consistent with unilateral conduct rather than explicitly 

coordinated action among the teams. Without something more plausibly asserting

“a meeting of the minds,” Twombly, 550 U.S. at 557, Kelsey has not alleged a 

conspiracy or agreement to restrain trade. 

Kelsey’s claim under California’s Cartwright Act fails for the same reasons 

because the requirements to plead a claim under California’s Cartwright Act are 

“patterned after section 1 of the Sherman Act.” Dimidowich v. Bell & Howell, 803 

F.2d 1473, 1476–77 (9th Cir. 1986) (citations omitted). Accordingly, we affirm 

the district court’s ruling that the complaint fails to plausibly allege conspiracy 

under the Cartwright Act. 

Furthermore, the amendments that Kelsey proposes would not cure these 

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

3

 

Accordingly, the district court did not abuse its discretion when it denied leave to 

amend. 

 

3 Kelsey also suggests that leave to amend should be granted to permit 

her an opportunity to include facts sufficient to allow her claims to be analyzed 

under the rule of reason. Kelsey concedes that her present complaint may not 

allege sufficient facts to establish liability under the rule of reason. As allegations 

relevant to a rule of reason analysis could have been pled but were not, and, as no 

explanation has been given for that omission, there is no merit in this suggestion. 
6

Finally, the district court properly denied discovery. The Supreme Court in 

Twombly noted that “proceeding to antitrust discovery can be expensive” and 

prescribed that “a district court must retain the power to insist upon some 

specificity in pleading before allowing a potentially massive factual controversy to 

proceed.” 550 U.S. at 558 (citations omitted). Here, the district court’s conclusion 

that no plausible claim for relief has been pled justifies the denial of discovery “to 

avoid the potentially enormous expense of [antitrust] discovery” cautioned against 

in Twombly. Id. at 559. Thus, we affirm the district court’s denial of discovery. 

AFFIRMED.