1 15 U.S.C. § 1125. United States Court of Appeals,

Fifth Circuit.

No. 92–2003

Summary Calendar.

Gralyn A. ANCAR, Plaintiff–Appellant,

v.

SARA PLASMA, INC., et al., Defendants–Appellees.

June 30, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, KING and WIENER, Circuit Judges.

POLITZ, Chief Judge:

Gralyn A. Ancar appeals th e dismissal of his unfair business practice claims against three

blood plasma centers. Finding that dismissal of Ancar's antitrust claims was an abuse of discretion

but agreeing that the remaining claims are not actionable, we vacate in part, affirm in part, and

remand for proceedings consistent herewith.

Background

Ancar filed a pro se petition against Sara Plasma, Inc., American Plasma Services, Inc., and

Delta Biological Plasma Center alleging mult iple claims of wrongful business practices associated

with the purchase and sale of human plasma. He pleads that he is a homeless person dependent on

the sale of plasma for his livelihood and that the defendants' illegal practices deprive him of income.

He alleges t hat t he plasma centers commit common-law fraud by characterizing plasma sellers as

donors and by forcing a dhesion cont racts upon them. He asserts that this fraud is perpetrated in

advertising violative of the Lanham Trade–Mark Act. 1 He also contends that plasma donors are not

paid an equitable price due to uneven bargaining power, that the plasma centers have conspired to2 Sherman Antitrust Act, 15 U.S.C. §§ 1, 2; Clayton Act, 15 U.S.C. § 15.

3 Denton v. Hernandez, ––– U.S. ––––, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).

4 Id.

5 112 S.Ct. at 1734.

6 Id.

7 Mahone v. Addicks Utility District of Harris County, 836 F.2d 921 (5th Cir.1988);

Carpenters Local Union # 1846 v. Pratt–Farnsw orth, Inc., 690 F.2d 489 (5th Cir. Unit B 1982),

cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). fix prices and have employed unfair business practices in violation of federal antitrust laws, 2 unfairly

manipulating the incentive plans and discriminatin g against all plasma donors. The district court

denied Ancar's motion to certify a class of all plasma donors and dismissed the action as frivolous.

Ancar timely appealed.

Analysis

A section 1915(d) dismissal is reviewed for abuse of discretion. 3 A complaint may be

dismissed as frivolous if it lacks an arguable basis in fact and law. The i n forma pauperis statute, in

contrast to Fed.R.Civ.P. 12(b)(6), empowers the court to pi erce the veil of the complaint's factual

allegations if they are clearly baseless. 4 In D enton v. Hernandez, the Supreme Court "decline[d] the

invitation to reduce the "clearly baseless' inquiry to a monolithic standard." 5 Examples of complaints

within the clearly baseless category are those which describe fanciful, fantastic, or delusional

scenarios. A complaint is factually frivolous if the facts alleged rise to the level of the irrational or

wholly incredible. Pleaded facts which are merely improbable or strange, however, are not frivolous

for section 1915(d) purposes. 6 In addition, as a general rule, antitrust allegations are liberally

construed. 7

To bring a private right of action to enforce the Sherman Act, a plaintiff must demonstrate8 Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979); Dillard v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., ––– F.2d ––––, Nos. 90–2722, 90–2761, 91–2135

(5th Cir. May 15, 1992); Park v. El Paso Board of Realtors, 764 F.2d 1053 (5th Cir.1985), cert.

denied, 474 U.S. 1102, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986); Jayco Systems, Inc. v. Savin

Business Machines Corp., 777 F.2d 306 (5th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 73,

93 L.Ed.2d 30 (1986). 15 U.S.C. § 15 provides in part, "[A]ny person who shall be injured in his

business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and

shall recover threefold the damages by him sustained...."

9 Dillard.

10 15 U.S.C. § 1.

11 Dillard, supra, n. 6.

12 Dillard. standing under section 4 of the Clayton Act, 15 U.S.C. § 15. 8 The private claimant must show injury

to "business or property" of a type the antitrust laws were intended to prevent. Pleadings need not

explain how the injury occurred; that the claimant sustained injury to business or property is a

sufficient allegation. 9 Ancar pleads that he depends for his livelihood on the regular sale of his plasma

and that the defendants' illegal practices have prevented him from receiving fair consideration. Ancar

has alleged sufficient personal pecuniary loss to sustain his antitrust claim.

Section 1 of the Sherman Act declares illegal "[e]very contract, combination in the form of

trust or otherwise, or conspiracy, i n restraint of trade or commerce among the several States...." 1 0

The elements required to state a section 1 claim are: (1) the existence of a conspiracy (2) affecting

interstate commerce (3) that imposes an unreasonable restraint of trade. 11

To satisfy the first element, pleadings must contain charges of the defendants' conspiracy and

factual allegations that would support such a claim. 12 Ancar's complaint repeatedly charges that the

defendants have conspired with each other and with national pharmaceutical companies in horizontal

and vertical price-fixing schemes designed to keep the purchase price of plasma art ificially low. He

alleges that the defendants have succeeded in depressing t he price by agreeing not to set the price

based on market demand. The pleadings include examples of the standardized price range scale and13 Cow

an v. Corley, 814 F.2d 223 (5th Cir.1987).

14 Summit Health, Ltd. v. Pinhas, ––– U.S. ––––, 111 S.Ct. 1842, 114 L.Ed.2d 366 (1991).

15 Id. (citing McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502,

62 L.Ed.2d 441 (1980); Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967));

see also Fuentes v. South Hills Cardiology, 946 F.2d 196, 199 (3d Cir.1991) ("[T]he Supreme

Court made clear in Summit Health, Ltd. v. Pinhas, that a quantification of interstate commerce is

not necessary in order to satisfy th[e] jurisdictional element."). the standard consent form language which have resulted from the alleged illegal trade practices. The

pleadings also name a Lo uisiana pharmaceutical company allegedly involved in the vertical

price-fi xing conspiracy. According to Ancar, this company and other national pharmaceutical

companies insure an art ificially low price of plasma by investi n g in and controlling local plasma

centers, including the defendants. The end result is that both the purchase and sale prices of plasma

are kept artificially low. The pro se pleadings are legally sufficient and factually plausible as to the

first requisite.

Regarding the second element, the district court found that Ancar had not set forth federal

jurisdiction. As an antitrust claimant, Ancar has the burden of establishing that the alleged proscribed

practices affect interstate commerce. 13 An interstate impact need not be intentional but, rather, may

be indirect or fortuitous. The interstate effect need not have occurred if t he planned conspiracy

would have harmed interstate commerce. 14 In cases involving agreements to fix prices, a showing

that the alleged conspiracy would impede a specified measure of interstate commerce is not necessary;

one need only show that an impediment to competition would occur in an interstate marketplace. 15

Ancar pleads that:

The Defendants herein are and have conspired in a "loose -association" to maintain and

perpetuate such violations as "horizontal price fixing," "vertic[al] price fixing," "actionable

fraud" and a number of other inequitable business practices unlawfully impacting trade and

commerce affecting intra-state and inter-state c o mmercial aspects of the Defendants'

plasmapheresis business activities.

The complaint contains names, corporate addresses, and annual sales revenue estimates of California,16 Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 108 S.Ct. 1515, 99

L.Ed.2d 808 (1988); United States v. All Star Industries, ––– F.2d ––––, No. 91–2439 (5th Cir.

May 28, 1992).

17 Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S.Ct. 1551,

60 L.Ed.2d 1 (1979); see also Business Electronics, 485 U.S. at 723–24, 108 S.Ct. at 1519

("Certain categories of agreements, however, have been held to be per se illegal, dispensing with

the need for case-by-case evaluation.").

18 Broadcast Music; All Star Industries.

19 15 U.S.C. § 2. Nebraska, and Tennessee pharmaceutical companies allegedly involved in the unlawful price-fixing.

The vertical price-fixing allegation names a Louisiana corporati on as a conspirator. Ancar cites Food

and Drug Administration regulations and reports demonstrating that plasma centers are located

among the several states. He provides the name and address o f t he federal Food and Drug

Administration office which licensed the defendants and the name o f t he applicable national trade

association. Ancar also pleads that he sells his blood in interstate commerce. We find that Ancar's

specific description of the national market affected by the alleged proscribed practices constitutes

sufficient pleadings of antitrust jurisdiction.

Final ly, section 1 of the Sherman Act proscribes only unreasonable restraints of trade. 1 6

Although most restraints are analyzed pursuant to a "rule of reason," some trade agreements are so

e gregiously anti-competitive that they are conclusively presumed illegal without further examination. 1 7

Price-fixing agreements among competitors fall within the per se unreasonable category. 18 Ancar's

detailed explanation of the defendants' price-fixing sufficiently alleges this element.

Section 2 of the Sherman Act forbids the attem pt, conspiracy, or act of monopolizing "any

part of t he t rade or commerce among the several States[.]" 1 9 The offense of monopoly has two

elements: (1) possession of monopoly power in the relevant market, and (2) the willful acquisition

or maintenance of that power as distinguished from growth or development as a consequence of a20 Jayco ; C.E. Services, Inc. v. Control Data Corp., 759 F.2d 1241 (5th Cir.), cert. denied,

474 U.S. 1037, 106 S.Ct. 604, 88 L.Ed.2d 583 (1985).

21 Shivangi v. Dean Witter Reynolds, Inc., 825 F.2d 885 (5th Cir.1987); Mitchell v. Johnston,

701 F.2d 337 (5th Cir.1983). superior product, business acumen, or historic accident. 20 Ancar alleges that Sara Plasma, Inc. and

American Plasma Services, Inc. have approximately one-third and t wo -thirds, respectively, of the

m etropolitan Houston, Texas area market, and that Delta Biological Plasma Center and America n

Plasma Services, Inc. share the Pasadena, Texas market area equally. The complaint states that this

mo no po ly po wer was not based on "historical accident," "superior technical skills," or "highly

advanced business acumen," but rather is the product of "extensive exercise of anti-competi tive

conduct to exploit [blood donors] and unduly restrict competition by manipulating the "free market

forces' to insure th e Defendants economically superior market positions and bargaining power."

Ancar's pleadings adequately state a section 2 antitrust violation.

Al l o f t he elements of sections 1 and 2 Sherman Act claims are pleaded and the factual

allegations are within the reasonabl e bo unds of credulity. The dismissal of the claims as frivolous

constituted an abuse of discretion.

We agree that Ancar's remaining claims are frivolous as a matter of law. The common-law

fraud and Lanham Trade–Mark Act violation claims allege illegalit y in the defendants' use of the word

"donor" to describe plasma sellers. As a seller, Ancar could not possibly be misled by this description.

His complaints that the defendants have greater bargaining power and that the sales agreements are

adhesion contracts have no legal relevance as Ancar does not bring a contract action for breach or

rescission. Ancar's allegations that the defendants have discriminated against or treated blood donors

poorly are not actionable complaints.

A ruling on class certification is to be affirmed absent an abuse of discretion. 21 We find no

abuse, as Ancar has not made a credible showing that his representation of all blood donors could22 Fed.R.Civ.P. 23(a).

"fairly and adequately protect [their] interests." 22

We AFFIRM dismissal of Ancar's claims, other than the antitrust claim, and AFFIRM the

court's refusal to certify a class of all area plasma donors. As to the antitrust claims we VACATE

AND REMAND for further proceedings consistent herewith.