Melvin Neagle v. Altisource Solutions ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVIN RAY NEAGLE, No. 19-35272
Plaintiff-Appellant, D.C. No. 6:18-cv-00754-MC
v.
MEMORANDUM*
ALTISOURCE SOLUTIONS, INC., a
Delaware Corporation; et al.,
Defendants-Appellees,
and
GOLDMAN SACHS GROUP INC., a
Delaware Corporation,
Defendant.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted July 8, 2020**
Portland, Oregon
*
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).
Before: M. MURPHY,*** BENNETT, and MILLER, Circuit Judges.
Melvin Ray Neagle brought this action against various entities involved in
servicing his mortgage: Ocwen Loan Servicing, LLC, Ocwen Mortgage Servicing,
Inc., and Ocwen Financial Corporation (collectively, Ocwen)—Neagle’s loan
servicers; MTGLQ Investors, L.P., an assignee of Ocwen’s; and Altisource
Solutions, Inc., a provider of default-related services to Ocwen. As relevant here,
Neagle asserted claims under the Sherman Act, 15 U.S.C. §§ 1, 2, seeking damages
for the additional debt added to his mortgage based on fees incurred as a result of
an alleged conspiracy to inflate the cost of third-party default-related services. The
district court dismissed the complaint for failure to state a claim. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
We review the district court’s order dismissing the complaint de novo.
Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007). To survive a motion to
dismiss, the complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
We may affirm on any ground supported by the record. Salameh v. Tarsadia Hotel,
726 F.3d 1124, 1129 (9th Cir. 2013).
***
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2
The district court dismissed Neagle’s claims against Ocwen and MTGLQ
because Neagle failed to allege that he complied with the notice requirement in his
deed, which required him to give Ocwen and MTGLQ opportunity to cure any
breach before bringing this lawsuit. The parties dispute whether the district court
correctly interpreted the deed, but we need not resolve that dispute.
Instead, we affirm the district court’s dismissal of all of Neagle’s damages
claims under the direct-purchaser rule of Illinois Brick Co. v. Illinois, 431 U.S.
720, 745–46 (1977). Under Section 4 of the Clayton Act, only “‘the immediate
buyers from the alleged antitrust violators’ may maintain a suit against the antitrust
violators.” Apple Inc. v. Pepper, 139 S. Ct. 1514, 1520 (2019) (quoting Kansas v.
UtiliCorp United Inc., 497 U. S. 199, 207 (1990)). Neagle did not directly purchase
the default-related services whose prices he says that the alleged antitrust
conspiracy inflated. Instead, Neagle alleges that Ocwen directed Altisource to
order default-related services from third-party vendors who charge Altisource for
those services; that Altisource marked up the price for those services and passed
the markup on to Ocwen; and that Ocwen then billed the marked-up cost to
borrowers, like Neagle. Neagle claims that the antitrust conspiracy inflated the
prices that Ocwen had to pay for those services and, consequently, the prices it
charged to borrowers.
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Neagle relies on Freeman v. San Diego Ass’n of Realtors, 322 F.3d 1133(9th Cir. 2003), in which we held that indirect purchasers have antitrust standing
when there is “no realistic possibility that the direct purchaser will sue its supplier
over the antitrust violation.” Id. at 1145–46. He argues that there is no realistic
possibility that Ocwen would sue Altisource because Altisource was spun-off from
Ocwen as a separate company in 2009, and the companies share “key executives.”
But we have explained that Freeman’s holding is narrow and that the key fact
supporting antitrust standing in that case was “the [supplier’s] ownership and
control of [the direct purchaser].” In re ATM Fee Antitrust Litig., 686 F.3d 741,
754 (9th Cir. 2012). That type of direct corporate relationship is not present here.
To the extent Neagle seeks injunctive relief, Illinois Brick would not bar his
claims. See Freeman, 322 F.3d at 1145. But although the complaint sought an
injunction, Neagle did not mention the possibility of injunctive relief on appeal.
We therefore hold that Neagle abandoned his claim for injunctive relief. See In re
Rigel Pharm., Inc. Sec. Litig., 697 F.3d 869, 871 n.3 (9th Cir. 2012). In any event,
we agree with the district court that Neagle did not state a plausible claim for relief
because he did not “allege a relevant market for Ocwen and [did not] allege that
Altisource has market power in the default-related services market.”
AFFIRMED.
4