Wayne Taleff; v. Southwest Airlines Co.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE TALEFF; et al.,
Plaintiffs - Appellants,
v.
SOUTHWEST AIRLINES CO.; et al.,
Defendants - Appellees.
No. 11-17995
D.C. No. 3:11-cv-02179-JW
MEMORANDUM*
and ORDER
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Submitted January 15, 2014 **
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.
FILED
FEB 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

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Appellants, direct purchasers of airline tickets, appeal the district court’s
dismissal of their Clayton Act challenge to a $1.4 billion merger consummated by
Appellees Southwest Airlines, Guadalupe Holdings, and AirTrans Holdings. The
district court granted Appellees’ motion to dismiss with prejudice, reasoning that
Appellants are not entitled to injunctive relief in the form of a divestiture order
under 15 U.S.C. § 26, and do not request any alternative relief. We review the
dismissal de novo, Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 989 (9th
Cir. 2009), and we affirm.
The district court correctly held that Appellants failed to demonstrate
entitlement to divestiture. See Indep. Training & Apprenticeship Program v. Cal.
Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (stating standard of
review for injunctive relief). Appellants were required to make a fact-based
showing of entitlement to that drastic and rarely awarded remedy. California v.
Am. Stores Co., 495 U.S. 271, 295–96 (1990). Appellants’ asserted injuries are
limited, however. They offer no evidence of threatened or actual specific injuries
to themselves, and proffer no support for their generalized claims of injury to
consumers and competition. In addition, as the district court noted, Appellants
delayed filing suit until roughly seven months after learning of the proposed
transaction, and thus allowed the deal to close—thereby significantly increasing
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the disruption to Appellees’ operations and the hardship to Appellees’ stockholders
and passengers caused by divestiture. Under these circumstances, Appellants’
factual allegations are insufficient to show that the balance of hardships will tip in
their favor or that divestiture would not disserve the public interest. Am. Stores
Co., 495 U.S. at 295–96. It follows that Appellants fail to state a claim for relief.
The district court did not err by dismissing the case with prejudice. Any
amendment would be futile in light of the hardship analysis required, given
Appellants’ delayed filing and the heightened consequences that would result from
divestiture. Cf. Carvalho v. Equifax Info. Servs., 629 F.3d 876, 892–93 (9th Cir.
2010). In so concluding, we note that Appellants have neither proposed any
specific amendments that would redress the fatal defects in their plea for relief nor
request any other form of remedy, and they have already amended their pleadings
and litigated the availability of divestiture twice without success. 1 See Ecological
Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013).
AFFIRMED.
1 We grant Appellants’ request for judicial notice of a Department of
Justice press release dated April 26, 2011, announcing the closure of its
investigation into the challenged merger, see Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998–99 (9th Cir. 2010), but decline to take notice of Appellants’
other submitted materials because they are either inappropriate for judicial notice
under Federal Rule of Evidence 201 and/or irrelevant under Rule 401.
3

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