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Companhia Brasileira Carbureto De Calcio - Cbcc, et al v. Applied Industrial

August 20, 2012

COMPANHIA BRASILEIRA CARBURETO DE CALCIO - CBCC, ET AL., PLAINTIFFS,
v.
APPLIED INDUSTRIAL
MATERIALS CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In 1992, certain participants in the U.S. ferrosilicon*fn1 industry filed an anti-dumping petition with the International Trade Commission ("ITC"), causing the ITC to impose import duties on foreign producers of ferrosilicon and in turn causing Plaintiffs, who are foreign producers, to withdraw from the U.S. market. Subsequently, the Department of Justice investigated, charged, and convicted U.S. ferrosilicon producers of price fixing. Based on the price fixing convictions, the ITC reviewed its decision to impose duties on foreign producers, and in 1999, the ITC reversed itself. In 2001, Plaintiffs brought these consolidated cases against the following U.S. ferrosilicon producers: CC Metals & Alloys, Inc. ("CC Metals"); Elkem Metals, Inc. ("Elkem"); and Applied Industrial Materials Corporation ("AIMCOR").*fn2 Plaintiffs allege that CC Metals, Elkem, and AIMCOR (collectively "Defendants") conspired to file fraudulent antidumping petitions with the ITC in violation of the Sherman Antitrust Act, 15 U.S.C. § 1, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) & (d).

Defendants filed a joint memorandum in support of their separate motions to dismiss. They argue lack of personal jurisdiction, the statute of limitations, lack of standing, and failure to state a claim. As explained below, the motions will be denied.

I. FACTS

A. Factual Background

In May 1992, AIMCOR, American Alloys Inc., Globe Metallurgical Inc. ("Globe"), and unions representing Elkem and CC Metals employees petitioned the ITC to impose import tariffs on foreign ferrosilicon for alleged unfair "dumping" of those products at low prices in the United States. Compl. [Dkt. 1] ¶ 20;*fn3 Opp'n [Dkt. 114], Ex. A ("1999 ITC Decision") at 13. The ITC was persuaded, and the Department of Commerce imposed duties on ferrosilicon from various foreign countries in 1993 and on ferrosilicon from Brazil in 1994. This allegedly caused Plaintiffs, Brazilian ferrosilicon producers,*fn4 to withdraw from the U.S. market.

Beginning in 1993, the Department of Justice investigated the domestic silicon products industry for illegal price fixing. That investigation resulted in a guilty plea and two convictions. On September 22, 1995, Elkem pleaded guilty to conspiracy to engage in price fixing; on April 18, 1996, American Alloys pleaded guilty to the same charge; and on March 17, 1997 CC Metals' predecessor (SKW) and its senior vice president (Charles Zak) were convicted of the same charge.*fn5

As a result of the criminal case, in 1998, Plaintiffs requested that the ITC review its ruling on the antidumping petition. The ITC did so and in August of 1999 reversed its prior decision. See 1999 ITC Decision. In 2001, Plaintiffs brought these consolidated cases alleging that the Defendants conspired to file fraudulent antidumping petitions with the ITC, causing the imposition of antidumping duties that harmed Plaintiffs. The Complaint alleges that Defendants violated section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (Count 1) as well as RICO, 18 U.S.C. § 1962(c) & (d) (Counts II and III).*fn6

B. Procedural Background

These consolidated cases were stayed while the 1999 ITC Decision lifting the import tariffs was appealed. After almost ten years of litigation, the Court of International Trade and the Federal Circuit both affirmed. See Elkem Metals Co. v. United States, No. 99-00627, 2008 WL 4097463 (C.I.T. Sept. 5, 2008) (affirming the ITC's fourth remand determination),aff'd without op., No. 2009-1007, 2009 WL 1285837 (Fed. Cir. May 11, 2009).

The cases here then resumed. In 2010, this Court dismissed the case for lack of personal jurisdiction over the Defendants, holding that the government contacts doctrine barred Plaintiffs from relying on Defendants' participation in the ITC proceedings as a basis for personal jurisdiction.*fn7 Plaintiffs appealed to the D.C. Circuit. The Circuit certified to the D.C. Court of Appeals the question of whether, under District of Columbia law, a petition sent to a federal government agency in the District provides a basis for establishing personal jurisdiction over the petitioner when the plaintiff has alleged that the petitioner fraudulently induced unwarranted government action against the plaintiff. Companhia Brasileira Carbureto de Calcio v. Applied Indus. Materials Corp., 640 F.3d 369, 373 (D.C. Cir. 2011). When the D.C. Court of Appeals answered in the affirmative, see Companhia Brasileira Carbureto de Calcio v. Applied Indus. Materials Corp., 35 A.3d 1127 (D.C. 2012), the D.C. Circuit vacated the judgment of this Court with regard to personal jurisdiction and remanded for further proceedings. Companhia Brasileira Carbureto de Calcio v. Applied Indus. Materials Corp., 464 Fed. Appx. 1, 2012 WL 555650 (D.C. Cir. Feb. 10, 2012).*fn8

Hence, jurisdiction returned to this Court. Elkem and CC Metals immediately moved to dismiss for lack of personal jurisdiction. The Court denied the motion. See Order [Dkt. 109]; Op. [Dkt. 110]. Now, all remaining Defendants (Elkem, CC Metals and AIMCOR) have moved to dismiss, arguing lack of personal jurisdiction, the statute of limitations, lack of standing, and failure to state a claim. Dismissal is not warranted.

II. LEGAL STANDARD

A. Rule 12(b)(1)

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction, a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). Nevertheless, "the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the [c]court accept plaintiff's legal conclusions." Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).

To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is both an Article III and a statutory requirement. Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).

B. Rule 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint must be sufficient "to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. To survive a ...


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