Bruce Max Davis, an individual v. AT&TWIRELESS SERVICES, INC., a Delaware Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE MAX DAVIS, an individual;
BLINDSIDE ENTERTAINMENT, LLC, a
Delaware limited partnership; GLOBAL
DATA REVENUE, INC.; KINMAN
GROWTH MUSIC PUBLISHING;
HEATHER AZURE KIRKBRIDE, an
individual,
Plaintiffs - Appellants,
v.
AT&T WIRELESS SERVICES, INC., a
Delaware Corporation; Erroneously Sued
as AT&T Mobility, LLC; CELLCO
PARTNERSHIP, a New Jersey
Corporation, DBA Verizon Wireless;
SPRINT SPECTRUM LP, a Delaware
limited partnership; T-MOBILE USA,
INC.; TRACFONE WIRELESS, INC., a
Delaware Corporation,
Defendants - Appellees.
No. 12-55985
DC No. 11 cv-2674 DDP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
FILED
APR 17 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.

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Argued and Submitted April 10, 2014
Pasadena, California
Before: TASHIMA, N.R. SMITH, and MURGUIA, Circuit Judges.
Plaintiffs appeal from the district court’s judgment of dismissal. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not err in dismissing Plaintiffs’ federal antitrust
claims. See Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc).
Plaintiffs failed to allege that Plaintiffs and Defendants are participants in the same
multimedia messaging services (“MMS”) market in which Plaintiffs’ injury
allegedly occurred. Plaintiffs therefore failed to state a claim for which relief can
be granted. See Glen Holly Entm’t Inc. v. Tektronix Inc., 352 F.3d 367, 372 (9th
Cir. 2003).
2. Plaintiffs waived any challenge to the dismissal of their state law
claims, because they failed to brief or argue in the district court that these claims
could survive independently of their federal antitrust claims. See Serv. Emps. Int’l
Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1073 n.8 (9th Cir.
2010).
3. The district court did not abuse its discretion in denying Plaintiffs a
third opportunity to state a claim. See Salameh v. Tarsadia Hotel, 726 F.3d 1124,
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1133 (9th Cir. 2013). Plaintiffs point to no additional facts that they might allege
to save their complaint. See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540
F.3d 1049, 1072 (9th Cir. 2008). Nor could they when their own pleading
affirmatively alleges that the MMS market is merely a pipeline or dedicated
conduit.
AFFIRMED.
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