United States District Court, N.D. California
KELSEY K., individually and on behalf of all others similarly situated, Plaintiff,
NFL ENTERPRISES LLC, et al., Defendants.
ORDER DENYING MOTION FOR LEAVE TO FILE FIRST AMENDED
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
dismissal of her antitrust claims, plaintiff moves for leave
to file an amended complaint. The motion is Denied.
Kelsey K. brought this action against the National Football
League and 27 of its member clubs based on allegations that
defendants violated the Sherman Act and the Cartwright Act by
conspiring to “suppress the compensation” of and
“eliminate competition among them for”
cheerleaders (see Dkt. No. 38-1 ¶ 1). This
action comes in the wake of a string of wage-and-hour
lawsuits against NFL clubs in recent years to benefit
cheerleaders, but it is not itself a wage-and-hour suit.
Instead, this action opens a new chapter in litigation
concerning NFL cheerleaders based on “more
sinister” allegations of antitrust conspiracy between
clubs (see Id. ¶ 102). Five other clubs in the
NFL do not even employ cheerleaders and have thus been left
out of this lawsuit.
order dated May 25 granted defendants' motion to dismiss,
finding that plaintiff had alleged neither “parallel
conduct with plus factors” nor antitrust injury
(see Dkt. No. 36). That order permitted plaintiff to
move for leave to amend but cautioned that she “should
be sure to plead her best case” (id. at 13).
Pursuant to the May 25 order, plaintiff now moves for leave
to file an amended complaint (Dkt. No. 38). Defendants oppose
the proposed amendment as futile (Dkt. No. 39). This order
follows full briefing and oral argument.
15(a)(2) advises, “The court should freely give leave
when justice so requires.” In ruling on motions for
leave to amend, courts consider (1) bad faith, (2) undue
delay, (3) prejudice to the opposing party, (4) futility of
amendment, and (5) whether the plaintiff has previously
amended their complaint. Nunes v. Ashcroft, 375 F.3d
805, 808 (9th Cir. 2003). Futility alone can justify denying
leave to amend. Ibid.; see also Ebner v. Fresh,
Inc., 838 F.3d 958, 968 (9th Cir. 2016). The parties
debate only the futility factor on the instant motion.
purposes of assessing futility, the legal standard is the
same as it would be on a motion to dismiss, i.e.,
the proposed amendment must plead “enough facts to
state a claim to relief that is plausible on its face.”
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim has facial plausibility when its factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
all allegations of material fact are taken as true and
construed in the light most favorable to plaintiff,
conclusory allegations of law and unwarranted inferences are
insufficient to warrant granting leave to amend. Cf. Ove
v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001). For
example, “formulaic recitation of the elements”
of a claim are not entitled to the presumption of truth.
Iqbal, 556 U.S. at 681. This order considers
allegations in the proposed amendment, attached exhibits, and
matters properly subject to judicial notice. See Manzarek
v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,
1030-31 (9th Cir. 2008).
bears repeating that plaintiff's proposed amendment, like
her initial complaint, asserts only claims for
violations of antitrust law. In other words, to repeat,
“[t]his is not a lawsuit for violation of
wage-and-hour or labor laws [or] for general maltreatment of
cheerleaders. . . . Plaintiff chose to assert
antitrust claims, so she must plead factual
allegations sufficient to show violations of
antitrust law” (Dkt. No. 36 at 4). The factual
allegations must answer the basic questions of “who,
did what, to whom (or with whom), where, and when?”
See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,
1047-48 (9th Cir. 2008).
Sherman Act Claim.
1 of the Sherman Act prohibits “[e]very contract,
combination in the form of trust or otherwise, or conspiracy,
in restraint of trade or commerce among the several States,
or with foreign nations.” 15 U.S.C. 1. A Section 1
claim requires (1) a contract, combination, or conspiracy (2)
intended to unreasonably restrain or harm trade (3) that
actually injures competition and (4) harms the plaintiff via
the anticompetitive conduct. Name.Space, Inc. v. Internet
Corp. for Assigned Names & Numbers, 795 F.3d 1124,
1129 (9th Cir. 2015); see also Aerotec Int'l, Inc. v.
Honeywell Int'l, Inc., 836 F.3d 1171, 1178 (9th Cir.
2016) (citing Am. Needle, Inc. v. Nat'l Football
League, 560 U.S. 183, 189-90 (2010)).
proposed amendment asserts “an overarching conspiracy
of two per se illegal agreements: a No Poaching
Agreement and a Wage Fixing Agreement” (Dkt. No. 38 at
8), but fails to allege facts supporting any plausible
inference of such a conspiracy. It would be redundant and
unnecessary to catalogue every deficiency in the proposed
amendment, many of which overlap with issues already
discussed in the May 25 order. Instead, this order primarily
focuses on new issues teed up by the proposed amendment that
justify denial of leave to amend.