O'Brien v. Visa International Corp.

146 F. App'x 82

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2005
• Docket: No. 04-55081; D.C. No. CV-03-05020-R
• Status: Published

Opinion

MEMORANDUM

**

Edward Michael O’Brien appeals pro se the district court’s dismissal of his action alleging that defendants conspired to violate antitrust laws by sending him unsolicited e-mail messages. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state a claim. Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir.2002). We affirm.

The district court properly dismissed O’Brien’s claim that defendants conspired to violate the Sherman Antitrust Act because O’Brien failed to allege a restraint of trade or commerce, see Columbia River People’s Util. Dist. v. Portland Gen. Elec. Co., 217 F.3d 1187, 1189-90 (9th Cir.2000), or that defendants conspired to monopolize trade, see Paladin Assocs., Inc. v. Montana Power Co., 328 F.3d 1145, 1158 (9th Cir.2003).

The district court did not abuse its discretion in failing to offer O’Brien the opportunity to amend his complaint because any amendment would have been futile. See Outdoor Sys. Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993).

We reject O’Brien’s request that the district court judge be disqualified because he may have had a credit card issued by one or more of the defendants. See United States v. Conforte, 624 F.2d 869, 879 (9th Cir.1980) (where grounds for disqualification were known or could have been discovered while the case was pending in the district court, “the grounds for recusal of the trial judge ... may not be raised for the first time on appeal”).

O’Brien’s remaining contentions are also unpersuasive.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.