Opinion

Animal Science Products, Inc. v. China National Metals & Minerals Import & Export Corp.

702 F. Supp. 2d 320
2010 U.S. Dist. LEXIS 35243
2010 WL 1324918

Court: District Court, D. New Jersey
Filed: Apr 1, 2010
Status: Published
Author: Brown
On the bench: Brown
Cited by: 7 cases
Authority: More cited than 62.9%

addressing the effect of Twombly on a pleading filed during the Conley reign and citing Schiller v. Phys. Res. Group, Inc., 342 F.3d 563 (5th Cir.2003), for the observation that “an entry of a binding precedent, [like Twombly or Iqbal ] which ... clarifies— rather than alters the existing legal regime [like the one ensuing from the Conley holding’s elaboration of Rule 8(a) ] — cannot qualify as an intervening change in the law [set forth by Rule 8]”

How later courts described this case

addressing the effect of Twombly on a pleading filed during the Conley reign and citing Schiller v. Phys. Res. Group, Inc., 342 F.3d 563 (5th Cir.2003), for the observation that “an entry of a binding precedent, [like Twombly or Iqbal ] which ... clarifies— rather than alters the existing legal regime [like the one ensuing from the Conley holding’s elaboration of Rule 8(a) ] — cannot qualify as an intervening change in the law [set forth by Rule 8]”
suggesting that plaintiffs "cannot show an 'intent-to-affect' even by the entire Chinese magnesite industry unless [they] provide facts showing that Chinese domestic purchases and all foreign non-American purchasers were charged lower prices”
interpreting “substantial” to mean whether the “defendants’ conduct was actually ‘intended/consciously meant’ [ ] to produce a consequence in the United States”
using the phrase “intent-to-affect”

Written by the judges who cited it.

The opinion

OPINION

GARRETT E. BROWN, Jr., Chief Judge.

TABLE OF CONTENTS

I. Introduction..............................................................327

II. Procedural Background....................................................327

III. Factual Background.......................................................329

IV. Distinction Between the Relevant Tests and Burdens..........................330

A. Standard and Burden Associated with Jurisdictional Inquiry...............330

B. Standard Associated with Pleading Underlying Claims.....................332

C. Burden Associated with Asserting Abstention............................334

V. Aspects Related to the FTAIA..............................................335

A. Subject Matter Jurisdiction under the Export Exception to the FTAIA Bar...............................................................335

1. Interplay Between the Sherman Act, FTAIA and Hartford Fire.........335

2. Plaintiffs Fail to Provide Factual Proof Meeting the FTAIA Exception......................................................339

*326

a. Paragraph One...............................................339

b. Paragraph Three.............................................341

e. Paragraph Twenty-Nine.......................................341

d. Paragraph Forty-Seven.......................................341

e. Paragraph Forty-Eight.......................................344

f. Paragraph Forty-Nine........................................345

g. Paragraph Fifty..............................................346

h. Paragraph Fifty-One .........................................346

i. Paragraph Fifty-Five.........................................347

j. Paragraph Sixty-Five.........................................349

k. Paragraph Seventy-Two.......................................361

l. Paragraph Seventy-Five ......................................362

m. Amended Complaint Fails to Meet the FTAIA Exception..........362

B. Subject Matter Jurisdiction Under the Introductory Clause of the FTAIA............................................................362

1. Plaintiffs’ Allegations..............................................363

2. Claim That Defendants Effectively Acted as Importers ................364

a. Plaintiffs’ Legal Position.......................................365

b. Coors Does Not Lend Support to Plaintiffs’ Legal Position.........367

c. Plaintiffs’ Position Contradicts the Gist of the Third Circuit Law ......................................................369

d. Sales to an American Intermediary or American End-Consumer.............................................374

3. Plaintiffs’ Factual Proof as to Defendants’ Importer Status.............375

a. Plaintiffs’ Own Exhibits .......................................375

b. Discrepancies in Defendants’ Statements ........................376

c. Defendants’ Exhibits..........................................377

VI. Leave to Amend..........................................................378

A. General Rule.........................................................378

B. Implications of Twombly, Iqbal and Factual Review Under Turicentro.....380

C. Limited Leave to Amend Is in the Interests of Justice.....................382

D. Prudential Considerations .............................................384

VII. The FSIA and Abstention Aspects..........................................384

A. Standard of Review...................................................385

B. Applicable Legal Tests................................................385

1. The FSIA........................................................385

2. The Act of State Doctrine..........................................388

3. The Concept of Comity............................................389

4. Government Compulsion...........................................391

C. Parties’ Relevant Exhibits and Factual Assertions ........................394

1. Defendants’ Moving Papers ........................................394

2. Plaintiffs’ Opposition ..............................................397

3. Defendants’Reply.................................................400

D. Relevant Legal Proceedings and Evidence Submitted Therein..............401

1. Judicial Notice and the Concept of Stare Decisis ......................401

2. Antidumping and Countervailing Proceedings.........................403

a. European Union Proceedings ..................................405

b. Proceedings Before the International Trade Administration........409

3. Antitrust Proceedings .............................................410

a. Proceedings in the Western District of Pennsylvania..............410

b. Vitamin C Proceedings........................................413

E. The FSIA Appears Relevant as to Some Defendants ......................418

F. The Act of State Doctrine Does Not Warrant Abstention...................420

G. Doctrine of Government Compulsion Appears Relevant....................421

1. Preliminary Considerations.........................................421

a. Concept of Compulsion through the Prism of Common Law........421

b. Concept of Compulsion through the Prism of Foreign Regimes.....422

*327

c. Deference to Statements Made by an Arm of a Foreign Sovereign..................................................425

2. The CCCMC Is a Government Entity for the Purposes of the Doctrine.......................................................429

3. Presence of Compulsory Processes..................................437

a. Source of Compulsion.........................................437

b. Theoretical Severity...........................................439

c. Actual Existence of Prescripts..................................441

d. Composite Effect.............................................448

e. Miscellaneous Considerations ..................................452

4. Compulsion Established and Asserted...............................462

VIII. Conclusion...............................................................464

INTRODUCTION

This matter comes before the Court upon Plaintiffs’ filing of an amended complaint (“Amended Complaint” or “Am. Compl.”),

see

Docket Entry No. 77, and upon submission of two motions to dismiss the Amended Complaint; these submissions were made by two groups of Defendants,

ie.,

by: (1) China Minmetals Corp. and China National Minerals Co., Ltd. (collectively, “Minmetals Defendants”); and (2) Sinosteel Corp., Sinosteel Trading Co. and Liaoning Jiayi Metals

Minerals Co., Ltd. (collectively, “Sinosteel Defendants”).

See

Docket Entry No. 98 (“Sinosteel’s Motion” or “S/Mot.”) and Docket Entry No. 99 (“Minmetals’ Motion” or “M/ Mot.”). Plaintiffs duly filed their opposition to Sinosteel and Minmetals’ Motions,

see

Docket Entry No. 105 (“Plaintiffs’ Opposition” or “Opp.”), to which the aforesaid two groups of Defendants duly replied.

See

Docket Entry No. 109 (“Minmetals’ Reply” or “M/Reply”) and Docket Entry No. 110 (“Sinosteel’s Reply” or “S/Reply”). For the reasons stated below, Sinosteel and Minmetals’ Motions will be granted, and the Amended Complaint will be dismissed as to the Minmetals and Sinosteel Defendants.

This dismissal, however, will be, in part, without prejudice, and Plaintiffs will be allowed to amend their pleadings and to provide the Court with factual proof establishing that Defendants were acting as “importers” during the putative Class Period.

II.

PROCEDURAL BACKGROUND

Being initiated almost half a decade ago, this matter has accrued a rather substantial procedural history. However, the bulk of these developments is largely irrelevant to the issues at hand and, hence, it should suffice to merely note that, on September 7, 2005, Plaintiffs Animal Science Products, Inc. (“Animal Science”) and Resco Products, Inc. (“Resco”) filed a civil complaint (“Original Complaint”) on behalf of a putative class and named seventeen Chinese business entities as Defendants.

The issues related to service of process dominated the next two years of litigation.

See, e.g.,

Docket Entries Nos. 3-50;

see also

[i ]& 1! 29.... Defendants’ ... pricing ha[d] directly affected U.S. commerce by increasing the price of Chinese magnesite purchased ... for use in the United States.

[See

Am. Compl.] ¶¶ 1, 51, 55, 65, 72 and 75. This effect has been substantial, leading to average overcharges of more than 21% on each sale of magnesite made ... during the four year period from 2004 to 2008.

[See

Am. Compl.] ¶ 65.... In 2007, Defendants and [entities associated with Defendants] had an 83% share of [a certain type of magnesite product that was exported from all over the world] to the United States and 87% share of [another type of magnesite product that was exported from all over the world] to the United States.

[See

]

id.

¶ 47. The value of the ... magnesite from China [that was brought to the United States] exceeded $160 million in 2008.

[See

]

id.

¶ 49. Accordingly, Defendants’ [trade] activities have affected ... U.S. commerce ....

Opp. at 17-18.

Each of the paragraphs cited in the Opposition,

ie.,

Paragraphs 1, 3, 29, 47-51, 55, 65, 72 and 75 of the Amended Complaint, warrants an individual discussion.

Paragraph One

Paragraph One alleges as follows:

This case arises out of a conspiracy among all Defendants and their [unspec

*340

ified] co-conspirators

that has the purpose and effect of fixing prices of magnesite and magnesite products exported to and purchased in the United States. Defendants have also committed other unlawful practices designed to inflate the prices of magnesite and magnesite products sold to Plaintiffs and other purchasers in the United States and elsewhere.

Am. Compl. ¶ 1.

This Paragraph provides the Court with no factual proof of any kind, prevent

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ing the Court from utilizing this Paragraph for its factual analysis, as defined in

Turicentro.

Moreover, being comprised of conclusory, self-serving sentences, this Paragraph fails to assert facts even in accordance with the lenient pleading requirements articulated in

Twombly

and

Iqbal .

Consequently, the content of this Paragraph will be disregarded for failure to support Plaintiffs’ position that the Court has jurisdiction to hear their claims under 15 U.S.C. § 6a(l)(A).

Paragraph Three

Paragraph Three asserts:

The conspiracy has existed from at least April 2000 to date, and increased its effectiveness through new agreements to fix prices and limit supply entered in 2003. Defendants’ illegal cartel [at an unspecified stage of its existence and, hence, of unspecified composition] has deliberately targeted and severely burdened consumers in the United States. Th[is unspecified in its stage-of-existence and composition] cartel has affected hundreds of millions of dollars of commerce in products that are used in American manufacturing facilities and households.

Id.

¶ 3.

The three sentences comprising this Paragraph suffer of the deficiencies identical to those plaguing Paragraph One,

ie.,

the statements made in Paragraph Three are not cognizable even for the purposes of facial review, as defined in

Twombly

and

Iqbal. A fortiori

these statements cannot qualify as factual proof for the purposes of factual review, as defined in

Turicentro.

Therefore, the content of Paragraph Three will similarly be disregarded by the Court without reaching the issue of whether this Paragraph could even be relevant to the “direct, substantial, and reasonably foreseeable” elements of the FTAIA exception stated in subsection (1)(A).

Paragraph Twenty-Nine

The following paragraph in Plaintiffs’ list,

ie.,

Paragraph Twenty-Nine, states:

Each of these Defendants and its [unspecified] co-conspirators has colluded with each other to restrain competition by, among other things, setting artificial prices pursuant to illegal horizontal agreements among these competitors. These horizontal practices were designed to, and in fact did, have a substantial and adverse impact in the United States.

Id.

¶ 29.

The shortcomings of this Paragraph are similar to those plaguing Paragraphs One and Three, discussed

swpra, ie.,

Plaintiffs offer the Court not a single factual proof, but only a “fusion” of: (a) legal conclusions applicable to any garden-variety Sherman Act scenario; and (b) a FTAIA/Sherman Act element. Therefore, the Court will analogously disregard the factless content of this Paragraph without reaching the issue of whether it might even be relevant to the “direct, substantial, and reasonably foreseeable” elements of the FTAIA exception.

Paragraph Forty-Seven

The next paragraph referred to by Plaintiffs, that is, Paragraph Forty-Seven, alleges:

During the period described in this [Amended] Complaint, the international market for magnesite and magnesite products was dominated by Defendants and their [unspecified] co-conspirators, including producers of magnesite and magnesite products and trading companies in China exporting magnesite and magnesite products. China is the most significant foreign supplier of magnesite to the United States with an 83 percent

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share of ... magnesite imports [in one type of magnesite product] and an 87 percent share of ... magnesia imports [in another type of magnesite product] in 2007.

Id.

¶47. The Court gathers that this Paragraph aims to provide the Court with a showing that Defendants’ export activities fell within the meaning of the exception in subsection (1)(A).

The Paragraph refers the Court, through footnote 5, to “2007 Yearbook Table 6,” that is, to a table in the document attached to the Amended Complaint as Plaintiffs’ Exhibit 4. The table, produced by the United States Census Bureau, shows that, in comparison with results of the year 2006, United States importation of Chinese magnesite-based products in the year 2007 slightly decreased in quantity and in value with regard to a certain magnesium oxide product but slightly increased in quantity and in value with regard to another magnesium oxide product. See Docket Entry No. 77-1, at 27; see

also infra

note 17 of this Opinion (explaining the distinction between crude magnesite and types of magnesium oxide). With regard to the first product, the table shows that United States import of this product was comprised of 85.4% (rather than 87% asserted by Plaintiffs) volume of goods of Chinese origin, and it’s relevant value was 74.1% of United States overall 2007 importation of that product.

See id.

With regard to the second product, the table shows 83.3% volume and 67.3% value as to the relevant United States importation in 2007.

See id.

The table — presenting, by definition, a snapshot of United States importation only in 2007 (and also verifying that Chinese magnesite products were the cheapest among all other goods of these types imported by the United States) — is entirely silent as to

Defendants’

individual (or even collective) share, be it volume-wise and/or value-wise, thus leaving it to the Court’s imagination whether Defendants’ goods comprised the entire batch of Chinese magnesium oxide imported by the United States in 2007, or none of it, or any amount in between.

See id.

Since, without resolving this ambiguity, the Court cannot assess the validity of Plaintiffs’ claims made against

Defendants

(rather than against the entire Chinese magnesite industry), the Court examined the Amended Complaint for any statement that may shed light on the relation between individual Defendants and the entire Chinese industry producing magnesitebased goods. The detected statements in the Amended Complaint (that appear relevant to the Court’s inquiry) do not assist Plaintiffs’ position; on the contrary, they render Plaintiffs’ claims unwarranted. For instance, Paragraph Fifty-Four of the Amended Complaint states: “[t]he members of the two Jiyuan and Huaxia Magnesite Groups

[ie., the two

initial ‘sub-Cartels’] collectively represented more than 70 percent of the export volume of magnesite in China” during unspecified year(s). Am. Compl. ¶ 54. (Notably, Paragraph Fifty-Four does not provide the Court with any source of Plaintiffs’ conclusion as to this percentile, hence rendering it of no use for the purposes of factual analysis, as defined in

Turicentro.

The Court, however, ignores this shortcoming, for the purposes of this Opinion only, to address Plaintiffs’ claim as a whole.)

If the Court were to entertain this 70% figure and, also, to take a leap of logic in Plaintiffs’ favor by presuming that the ever-changing “Cartel” and the sum of Jiyuan and Huaxia Magnesite “sub-Cartels” were, somehow, the same thing,

but see supra

note 13 of this Opinion (prompting a conclusion otherwise), Plaintiffs’ allegations would merely suggest that Defen

*343

dants (perhaps, jointly with their specified and unspecified co-conspirators) had a 70 percent share of Chinese magnesite-based export.

Further examining Plaintiffs’ Amended Complaint, the Court finds this 70% figure relevant to Plaintiffs’ claim that “[t]he United States consumes about 25 percent of China’s magnesite exports.”

Id.

¶ 50. In support of that proposition, Plaintiffs rely on their Exhibit 2.

See id.

at 12, n. 7. However, Plaintiffs’ Exhibit 2 states:

About 2.0 million metric tons of magnesium oxide were exported from China in 2006 .... In 2006, 590 thousand metric tons, 500 thousand metric tons, 300 thousand metric tons, and 640 thousand metric tons of magnesium oxide were exported from China to Japan, Europe, the United States, and Other Asia, respectively.

Docket Entry No. 77-1, at 9.

Read jointly with Exhibit 2, Plaintiffs’ Paragraph Forty-Seven stands for the propositions that the alleged “Cartel” a/k/a the sum of “Jiyuan and Huaxia Magnesite Groups” was the source of a mere 10.5% (ie., 70% of these 15%) of the Chineseorigined magnesium oxide destined for export, and that is only if the Court generously presumes a pro-rate spread of export destinations among all Chinese exporters (since a non-pro-rata hypothesis would allow to presume that no Defendants’ goods whatsoever — or mere droplets of Defendants’ export — ended in the United States, and that these 15% of all Chinese magnesium oxide that ended in the United States

*344

came from the 30% share of goods exported by Chinese entities that were not members of the alleged “Carter). This 10.5% figure cannot possibly be read as factual proof showing that Defendants intended/meant to affect

United States

commerce: if anything, it suggests that Defendants’ focus was domestic Chinese sale and exportation to countries other than the United States. Consequently, the content of Paragraph Forty-Seven (asserting the percentile of United States importation of Chinese-originated magnesite in 2007) fails to meet the requirements of factual review, as defined in

Tuñcentro,

and — even under the standard of facial review — fails to indicate that the Court has jurisdiction to hear Plaintiffs’ Sherman Act claims. If anything, this Paragraph merely verifies the interest of United States importers in buying Chinese magnesite-based products, perhaps because these products have consistently been the cheapest on the global market.

Paragraph Forty-Eight

The following paragraph,

ie.,

Paragraph Forty-Eight, alleges as follows:

During the period relevant to this Complaint, the conduct of Defendants and their [unspecified] co-conspirators has taken place in and affected the interstate commerce of the United States. Hundreds of thousands of metric tons of magnesite are imported into the United States each year from China. Data from the U.S. International Trade Commission confirms that imports from China into the U.S. of magnesite exceeded 500,000 metric tons in each year from 2000 to 2006.

Am. Compl. ¶ 48. The Paragraph also includes the following table:

[[Image here]]

Although the Amended Complaint provides the Court with no citation allowing the Court to verify the authenticity of the table, the Court presumes, for the purposes of this Opinion only, that the table is true and correct.

Since the above-replicated table indicates that China was the origin of the lion’s share of magnesitebased products imported by the United States during the period from 2000 to 2006, the prices on Chinese-originated magnesite-based goods could have a “direct” effect on the prices charged in the United States.

However, the table — providing, again, data only as to magnesite-based goods of

*345

Chinese origin imported by the United States — is wholly silent as to the share of magnesium oxide exported by

Defendants,

rather than by China as a country, same as the table sheds no light on Defendants’ domestic Chinese sales and export to countries other than the United States.

See id.

In other words, it appears that Plaintiffs invite the Court to equate

all

Chinese magnesite-based export with Defendants’ magnesium oxide export. This the Court cannot do,

since Plaintiffs’ facts just as comfortably allow for an inference that

Defendants’

share in Chinese exportation of magnesium oxide caused no effect whatsoever.

Cf. Fowler,

578 F.3d at 210-11 (“[wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’‘that the pleader is entitled to relief ”) (quoting

Iqbal,

129 S.Ct. at 1949-50 ). If Plaintiffs’ allegations fail even facial review, these allegations cannot operate as a proof for the purposes of the Court’s factual review, as it is defined in

Turicentro.

Consequently, the content of Paragraph Forty-Eight will be disregarded for failure to provide factual proof as to the Court’s subject matter jurisdiction over Plaintiffs’ claims.

Paragraph Forty-Nine

The next paragraph relied upon by Plaintiffs,

i.e.,

Paragraph Forty-Nine, states as follows:

The value of U.S. imports of magnesite and magnesite products from China exceeded $50 million in 2000 and exceeded $160 million in 2008.

See id.

¶49 (referring the Court to footnote 6 which, in turn, directs the Court’s attention to: (a) a table in Plaintiffs’ Exhibit 5; and (b) a reference to a web page < <http://dataweb.usitc.gov/> >).

The table included in Plaintiffs’ Exhibit 5 shows that, during the year 2000, various magnesite-based products of Chinese origin were imported by the United States in the amount of $553,116,000.

See

Docket Entry No. 77-1, at 37. The web reference to <<http://dataweb.usitc. gov>> brings the Court to the homepage of the United States International Trade Commission, where no drop-down menu, no direct link, no search directory and no advance search of terms “China Chinese Magnesite 2008” allowed the Court to locate a particular statement with regard to United States importation of Chinese magnesite-based products in 2000 or 2008; in other words, this piece of Plaintiffs’ “factual proof’ was effectively nothing but Plaintiffs’ directive to the Court to find evidence supporting Plaintiffs’claim.

See

<<http:// dataweb.usitc.gov>>. Such “proof,” by definition, fails to support Plaintiffs’ position: “[district judges have no obligation to act as counsel or paralegal [even] to

pro se

litigants,”

Pliler v. Ford,

542 U.S. 225, 231-32 , 124 S.Ct. 2441 , 159 L.Ed.2d 338 (2004), and,

a fortiori,

have no obligation

*346

seek out evidence supporting the claims asserted by a represented litigant.

However, the crucial error with Plaintiffs’ Paragraph Forty-Nine is not the dead-end result of Plaintiffs’ citations. Rather, the shortcomings of Plaintiffs’ statement and Exhibit 5 are substantively identical to those plaguing the above-discussed Paragraph Forty-Eight, ie., Plaintiffs try to equate the

entire Chinese export

of magnesite-based products with

Defendants’

export of magnesium oxide. As explained in the preceding subsection of this Opinion, the Court declines Plaintiffs’ invitation to so equate since Plaintiffs’ data, even if true, fails to establish proof that Defendants were meaning/intending to affect United States commerce. Therefore, the Court will disregard the content of Paragraph Forty-Nine for failure to provide factual proof.

Paragraph Fifty

The following paragraph referred to by Plaintiffs,

ie.,

Paragraph Fifty, asserts:

The United States consumes about 25 percent of China’s magnesite exports. The steel industry in the United States is the primary consumer of magnesite products, with 390 thousand metric tons consumed by steel refractories in the United States during 2006. Cement refractories are the second leading consumer of magnesia in the United States.

Am. Compl. ¶ 50 (referring the Court to footnotes 7 and 8, which — in turn — refer the Court to Plaintiffs’ Exhibit 2 already examined by the Court in the subsection “Paragraph Forty-Seven,” supra).

The content of this Paragraph warrants little discussion, since the issue of which particular industry among United States industries is the leading — or second leading — consumer of magnesite-based products is wholly irrelevant to the subject matter jurisdictional inquiry at bar. That leaves the Court only with Plaintiffs’ erroneously calculated claim that the United States consumes 25% of Chinese magnesite.

See supra

note 16 of this Opinion (pointing out the error in Plaintiffs’ mathematics as to 25%, which should actually be 15%). As the Court already explained in its discussion of the shortcomings of Plaintiffs’ Paragraph Forty-Seven, this 15% reference lends no support to Plaintiffs’ claim that Defendants’ activities fall within the language of subsection (1)(A): Defendants’ export of, presumably, 10.5% of Defendants’ goods to the United States cannot show that Defendants intended/meant to affect American domestic commerce. Therefore, the content of Paragraph Fifty will similarly be disregarded for the purposes of the Court’s review, since it fails to provide factual proof of Plaintiffs’ position,

Paragraph Fifty-One

Plaintiffs’ next paragraph, that is, Paragraph Fifty-One, alleges:

The conduct of Defendants and their [unspecified] co-conspirators has directly, substantially and foreseeably restrained trade and commerce in the United States. Members of the conspiracy, including Defendants Sinosteel Trading, Liaoning Jiayi, Haicheng Houying, Haicheng Huayu, Yongkou Huachen, China Minerals, and Minmetals directly have sold and continue to sell magnesite and magnesite products to U.S. companies and in U.S. commerce at prices artificially increased by the Cartels [in unexplained plural].

Am. Compl. ¶ 51.

The deficiencies of this Paragraph are identical to those of Paragraphs One, Three and Twenty-Nine,

ie.,

the content of this Paragraph fails to present any evidential support for Plaintiffs’ position for purposes of factual review, as it is defined in

Turicentro.

Moreover, this Paragraph expressly includes the error disqualifying its content even for the purposes of facial review, since it “asserts” a mere mechanical repetition of the elements of the

*347

FTAIA exception.

See Iqbal,

129 S.Ct. at 1949-51 (“[A

fortiori,]

the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [or to tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements [,

ie.,

by] legal conclusion^] couched as a factual allegation [e.g.,] the plaintiffs’ assertion of an unlawful agreement [or] that [defendants] adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group””) (quoting

Twombly,

550 U.S. at 555 , 127 S.Ct. 1955 , and

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256, 279 , 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979)). Therefore, the Court will disregard Plaintiffs’ self-serving assertions set forth in Paragraph Fifty-One.

Paragraph Fifty-Five

The following paragraph, that is, Paragraph Fifty-Five, maintains:

As a result of these agreements, despite slumping demand, the price of magnesite products imported from China to the United States increased during 2000. According to statistics available from the United States International Trade Commission, the customs value of [dead-burned magnesium oxide] imported from China into the United States rose from $104 per metric ton in the fourth quarter of 1999 to $158 per metric ton by the fourth quarter of 2000.

Am. Compl. ¶ 55.

The Paragraph is referring the Court to footnote 11, which' — in turn — refers the Court to the discussed

swpra

homepage of the United States International Trade Commission, where, as stated

supra,

no drop-down menu, no direct link, no search directory and no advance search of terms allowed the Court to locate the statement referred to by Plaintiffs,

ie.,

Plaintiffs’ “factual proof,” once again, is nothing but Plaintiffs’ directive to the Court to find evidence supporting Plaintiffs’ claim.

See <

<http://dataweb.usitc.gov> >. Moreover, Plaintiffs’ first sentence,

ie.,

“[a]s a result of [Defendants’ collusive] agreements, despite slumping demand, the price of magnesite products imported from China to the United States increased during 2000” appears factually questionable

and, even if factually correct, merely paraphrases Plaintiffs’ self-serving economic conclusion (that a drop in demand for certain goods must necessarily result in a drop or stagnation of price charged for these goods)

into a factless statement

*348

sounding like a fact.

See Iqbal,

129 S.Ct. at 1953 (“the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions ... couched as a factual allegation”).

The second sentence of Plaintiffs’ Paragraph Fifty-Five similarly fails to support Plaintiffs’ position. That sentence cites the homepage of the United States International Trade Commission in order to assert that “the customs value of [dead-burned magnesium oxide] imported from China into the United States rose from $104 per metric ton in the fourth quarter of 1999 to $158 per metric ton by the fourth quarter of 2000.” Am. Compl. ¶ 55. This statement appears also factually questionable, since a United States Government Survey indicates that the per-metric-ton price on Chinese dead-burned magnesium oxide was $126.90 in 1999, and $129.27 in 2000.

See

< <http://minerals. usgs.gov/minerals/pubs/commodity/ magnesium/401400.pdf>>, at 8. If so, a simple mathematical calculation reveals that the per-ton price rose by $2.37, that is, by less than 2% (rather than by $54.00 per ton asserted by Plaintiffs in Paragraph Fifty-Five); such rise in price is so trivial in comparison with the base price of $126.90-per-ton that it would be unlikely to signify any non-nominal effect on United States commerce.

*349

However, the key shortcoming of Plaintiffs’ position is not rooted in the uncertainty of Plaintiffs’ figures. Rather, it ensues from the fact that these figures show only the price trend with regard to all Chinese dead-burned magnesium oxide imported into the United States during 2000. Even if the Court were to ignore the “snap-shot” quality of this figure (since it cannot be imported into Plaintiffs’ allegations with regard to 2001, 2002, 2003, 2004, 2005, 2006, 2007 and thereafter, apparently), the overall rise in Chinese prices charged with regard to United States import cannot show an “intent-to-affeet” even by the entire Chinese magnesite industry unless Plaintiffs provide facts showing that Chinese domestic purchases and all foreign non-American purchasers were charged lower prices. Plaintiffs, however, do not even assert these facts and certainly offer no proof of them. Since Plaintiffs’ figures do not establish that the entire Chinese magnesite industry was intending to affect United States commerce, the Court has no reason to deduce from this stark absence of facts that

Defendants

undertook actions that were meant to affect United States commerce. In light of the foregoing, the Court will disregard the content of Paragraph Fifty-Five, since it fails to provides the Court with any relevant factual proof,

Paragraph Sixty-Five

Next paragraph,

ie.,

Paragraph Sixty-Five, provides the Court with the following statement:

Due to the efforts to increase prices at the end of 2003, the Cartel achieved significant price increases in the U.S., stabilized U.S. prices, and avoided major price cutting despite low levels of demand. An overcharge analysis from a regression model by Plaintiffs’ expert economist Dr. Russell Lamb of Econ One shows that, between 2000 and 2003, the Cartel overcharged U.S. buyers of magnesite by an average of 4 percent,

*350

while between 2004 and 2008, as a direct result of the Cartel’s activities, U.S. magnesite purchasers were overcharged more than 21 percent.

Am. Compl. ¶ 65.

This Paragraph refers the Court to footnote 20, reading, “Expert Report of Dr. Russell Lamb [ (“Lamb”) ], dated September 27, 2007, filed in Support of Plaintiffs’ Motion for a Default Judgment” (“Report”).

See id.

at 20. Although this reference states no docket entry number, the Court, given the above-designated date of execution, the authorship and the purpose of submission of the report, presumes that Plaintiffs’ footnote 20 was intended to make a reference to Docket Entry No. 28-6.

Plaintiffs’ reliance on the conclusions drawn by Plaintiffs’ expert — rather than on facts and evidentiary proof of such facts — is necessarily concerning for the purposes of factual review for two reasons. First, Federal Rule of Evidence 702, amended to codify the Supreme Court’s decisions in

Daubert v. Merrell Dow Pharms.,

509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993),

GE v. Joiner,

522 U.S. 136 , 118 S.Ct. 512 , 139 L.Ed.2d 508 (1997), and

Kumho Tire Co. v. Carmichael,

526 U.S. 137 , 119 S.Ct. 1167 , 143 L.Ed.2d 238 (1999), is unambiguous in the sense that it provides that an expert should base the expert’s opinion on the litigant-provided facts rather than providing the expert’s opinion as a “fact” supporting litigant’s claim.

See

Fed.R.Evid. 702;

accord Daubert,

509 U.S. 579 , 113 S.Ct. 2786 . Second, since the factual review at hand is a process qualitatively different in its premises and goals from a default judgment process, the Report — even if it were, hypothetically, proper for the purposes of Plaintiffs’ then-pending-and-since-dismissed motion for default judgment — appears questionably relevant to the Rule 12 inquiry currently conducted.

However, in light of the Court of Appeals’ guidance as to the breadth of proof the district court should consider while conducting its factual review under Rule 12,

see Turicentro,

303 F.3d at 300, n. 4 (explaining that, in its assessment of a factual deficiency, the district court “must weigh [all available] evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings,” and citing

Garcia v. Copenhaver, Bell & Assocs.,

104 F.3d 1256, 1260-61 (11th Cir.1997);

Ohio Nat’l Life Ins. Co. v. United States,

922 F.2d 320, 325 (6th Cir.1990); and

Oaxaca v. Roscoe,

641 F.2d 386, 391 (5th Cir.1981)), this Court concludes that it would be an error to disregard the content of the Report merely on the grounds that it is an expert opinion and, thus, will assess the content of the Report on its merits.

That content of the Report is as follows:

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(i) The Report opens with Lamb’s statement detailing his employ and studies.

See

Docket Entry No. 28-6, at 3.

(ii) Then, in no ambiguous terms, Lamb states that he “assume[d] that the allegations contained in the [Original] Complaint [were] in fact true.”

Id.

at 3-4.

(in) Following this introduction, the Report proceeds to an observation that various forms of magnesium oxide are obtained,

inter alia

from extensive heating of magnesite.

See id.

at 5 (relying on a document designated as Stefan Schlag, Jim Glauser and Kenji Fujita,

Magnesium Oxide and Other Magnesium Chemicals,

Chemical Economics Handbook, SRI Consulting, 2007” (“CEH”)).

The Report then informs the Court that “[t]he steel industry is a primary source of magnesia demand” and “[c]ement refractories are the second leading consumer of magnesia.” Docket Entry No. 28-6, at 6 (relying on CEH and referring, seemingly, to American industrial landscape).

(iv) Then, switching to Chinese production of magnesium oxide, the Report informs the Court that “[a]bundant magnesite deposits and inexpensive processing have provided Chinese producers with a competitive price advantage relative to other exporters of magnesite products.”

Id.

at 7 (relying exclusively on CEH for this sweeping economic conclusion). This statement is followed by a conclusion that “[d]emand for Chinese magnesia has been driven by China’s domestic steel manufacturing industry.”

Id.

(v) With that, the Report repeats, in a purely conclusory fashion, that “the injury to [P]laintiffs arises because they purchased Chinese magnesite at prices higher than they would have paid but for the [Defendants’ misconduct,” and proceeds to “[t]he calculation of [Plaintiffs’] damages arising from [Defendants’] conspiracy to fix prices.”

Id.

at 8.

(vi) Lamb begins such calculation by stating that the base damages (that is, prior to trebling) are equal to “[t]he difference between the actual ... prices [paid to unspecified Chinese sellers of magnesium oxide by unspecified buyers of the same] and the prices that would have prevailed [presumably, in the entire market of Chinese domestic and ex

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ported magnesium oxide] but for [Defendants’] misconduct”; he calls such difference “overcharge.”

Id.

(vii) Then, the Report states that, “[t]o calculate the overcharge in this matter, [Lamb] use[d] the method known as a benchmark.”

Id.

at 9. Specifically, Lamb asserted that he used data related to sale of Chinese magnesite (which, the Court trusts, was data reflecting Chinese sales of magnesium oxide rather than crude magnesite) during the period from 1995 to 2000 in order to compare that data to — presumably corresponding' — data as to the sale of Chinese magnesium oxide during the period from 2000 to the date of execution of the Report (that is, September 27, 2007).

See id.

at 9,18.

(viii) Next, the Report acknowledges that “[p]rices on [magnesium oxide] depend on many factors [and,] if any of these market factors also vary between the [after-2000] and the [1995-to-2000] period[s], then movements of these other factors should be taken into account when determining the overcharge,”

id.

at 10,

i.e.,

that data must be adjusted.

(ix) Lamb states that, in order to perform such adjustment, he “employed a statistical technique known as multiple regression analysis.”

Id.

at 10. Since Lamb’s conclusions are based on multiple regression analysis, his Report cannot be intelligibly discussed without at least a brief clarification as to the gist of the statistical tool he employed.

The

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premise underlying regression analysis is a recognition that there are many situations in life where one quantity (called the “independent variable”) might have an effect on another quantity (called the “dependent variable”); to illustrate, there might be a relation between disposable personal income and consumption spending.

If the relationship between these two variables is figured out, then the changes of the dependent variable can be predicted if the changes of the independent variable are known or can be predicted. In order to start the analysis, pools of known observations of the quantities at issue have to be collected: in the aforesaid example, it would be the population’s disposable income and its spending, e.g., for each year during the period 1989-2009. Once these pools of data are collected, they are usually presented in a visually meaningful form on an

diagram (so presented, the data looks like a cloud of scattered points in

axes, called a “scatterplot”), where all dependant variable data (in this example, spending) is

values, and all independent variable data (disposable income) is

values: so each year is reflected on the diagram by a point having its own

and

values. The overall “trend” of the scatterplot is the trend in the income/spending relationship during 1989-2009; this “trend” can be expressed by a straight line which best represents all the points in the graph. This line, in turn, is called the “regression line,” and this type of analysis is called regression analysis. Since, geometrically, the regression line can be defined in terms of its slope “m” and its vertical intercept “b” (where the line crosses the

axis), the mathematical equation of the line can be written as

y -

x +

although both “m” and “b” typically carry caret symbol (“") and, thus, are referred to as “m-hat” and “b-hat.” The caret symbol stresses that both “m” and “b” are merely estimated, and that any regression model comes with an important warning that “the mere fact that there is a strong association between two variables does not indicate there is a cause and effect relationship between them.”

Easy Statistics

at 270-72 (providing detailed examples, diagrams and calculations illustrating the same). These principles equally apply to simple regression (dealing with just two variables, as

and x) and to multiple regression; indeed, “multiple regression” merely means that there is more than just one independent variable

“x,”

for example, a multiple regression equation could be

y-x

= -I-

b2x&

. If the constants are expressed in numbers, such model might look, for instance, as:

y = 1.8016X! + 6.0658X2 + 7.5546 (.2202) (.1422) (3.2556)

where 1.8016 is the coefficient for

6.0658 is the coefficient for

7.5546 is the coefficient for the constant term, and the parenthetical numbers underneath

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represent corresponding standard errors. A division of each coefficient value by its corresponding standard error results in a measure called “¿-statistic,” it is used to test hypotheses about the value of the coefficient.

Having so reviewed the very basic points of regression analysis, the Court now returns to its discussion of Lamb’s regression-related statements.

(x) Lamb begins by explaining the meanings of the terms “dependant variable” and “independent variables”; he uses alternative terms for the latter (ie., “explanatory variables” or “regressors”).

See

Docket Entry No. 28-6, at 10. Lamb also clarifies that, for the purposes of his analysis, “the price of Chinese magnesite is the dependent variable” (that is,

y),

but does not state whether his observations included prices charged only with regard to Chinese exportation or with regard to domestic Chinese prices, or United States importation (which leads to Court to conclude that these prices were the same, and all buyers were treated equally regardless of their origin).

See id.

Moreover, the Report does not provide the Court with

any

observations utilized by Lamb for his calculations: the Report simply invites the Court to trust Lamb that these pools of data were properly collected, by stating as follows:

[In order to obtain a pool of observations as to the this “price,” Lamb utilized] prices obtained from Industrial Minerals, a market research firm.

The data [Lamb] used include[d] monthly prices for three common grades of Chinese dead-burned magnesia from July 1994 through July 2007.[

Lamb] used these three price series to measure the dependent variable

] in [his] regression model[.

Lamb] believe[d that] these price data provide[d] reliable measures of magnesite prices [because] Industrial Minerals is cited as a source of industry information by numerous[, although unspecified] experts on magnesite, [and in] citations in Deborah A. Kramer, “Magnesium Compounds” review in 2006 Minerals Yearbook, published by United States Geological Survey in June 2007. In addition, [Lamb] compared the prices [he used as his pool of

observations] to other publicly available sources

and found them to be consistent [in an unspecified fashion] with prices for Chinese magnesite products sold in the United States (which Lamb, presumably, obtained from Industrial Minerals, “a market research firm”].

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Id.

at 11 and n. 29 (footnoted text incorporated).

(xi) With that, Lamb states that he selected the total of six independent variables, namely:

(a) two variables that Lamb believed affected the demand factor as to magnesite-based products (these variables are “growth of Chinese steel production” and “growth in Chinese cement production”);

(b) two variables that Lamb associated with Chinese export-related “price” advantage (these variables are: (a) the exchange rate between United States Dollar and Chinese Yuan; and (b) an assessment of the value of Yuan against the basket of international currencies Lamb titled “World Foreign Exchange Rate”);

and

(c) two variables that Lamb associated with the costs of production and supply. These variables included: (1) cost of crude oil (since — for the reasons not entirely clear to this Court — Lamb presumed that the process of heating magnesite into magnesium oxide necessarily requires oil rather than natural gas, coal or other sources of energy

); and (2) Chinese domestic inflation (since Lamb

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believed that the overall increase in Chinese consumer prices would drive up prices charged for exported natural resources).

See id.

at 11-13,15.

(xii) The Report does not share with the Court Lamb’s regression equation. Rather, short-cutting through all stages of his regression analysis, Lamb simply informs the Court that he reached certain results and organized some of these results into a table (“Lamb’s Regression Result”), where: (1) estimates of variables were converted to their natural logarithms; (2)

statistics show that Lamb’s regression model “explains 87 percent of the variation in the dependent variable” (hence, leaving 13% unexplained); and (3) ¿-statistics is provided as a measure of what is “statistically significant.”

Id.

at 14-15.

Specifically, Lamb’s Regression Result table is as follows:

[[Image here]]

Id.

at 14-15.

(xiii) Even a superficial review of the table reveals that Lamb’s Regression Result and the body of the Report are incongruent. For instance, while Lamb stated that his observations involved 156 periods,

see supra,

note 35 of this Opinion, the table somehow states that there

*357

were only 143 periods. And while there appears to be a correlation between these 143 periods, three “panels” and 439 “observations” (since 143 x 3 = 429), the Court is left to guess which “panels” Lamb had in mind, since he allegedly studied

six

independent variables and should have, at least theoretically, obtained six price series.

Similarly, the Court is left to guess a number of other aspects of Lamb’s model and calculations.

(xiv) The main problem with Lamb’s Regression Result, however, seems to be not the string of the aforesaid incongruences and ambiguities, but the inexplicable appearance of two new regressors, called “Collusion Overcharges” (“CO”). Indeed, while the Report asserts — although without providing the Court with either actual data or citations to the sources of such data — that Lamb took observations of magnesite prices, steel production, cement production, oil prices, inflation of the Yuan and fluctuations in its exchange rate, the Report at no point asserts that Lamb took — or even could have taken — any actual observations of these Collusion Overcharges. Rather, Lamb asserts that, [because] Plaintiffs allege that the operation of the cartel resulted in higher prices for magnesite products in the U.S----[Lamb] include[d two] variables [that he deemed to be] “indicator variables” for the period April 2000 through 2003 and for the period from 2004 forward ... to account for the possibility that the alleged [“C]artel[”] may have become more effective over time.

Docket Entry No. 28-6, at 13-14.

(xv) The statement that a certain variable is binary (also referred to as “dummy variable” or by the term preferred by Lamb,

ie.,

“indicator variable”) merely establishes that this dummy variable is presumed to be “1” if a certain condition is true and “0” if that condition is false.

See Business Statistics

at 394-95;

accord

Docket Entry No. 28-6, at 14

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(seemingly trying to express the same by stating that “[s]uch indicator variables take the value of one during the period in question and zero elsewhere”). “Dummy variables,” however, are

artificially created

variables utilized with a realization that, sometimes, a certain set of factors that affects the dependent variable might not be not quantitative

(ie.,

while being known as present during the events statistically analyzed, it cannot be given by numbers); the coefficient of such dummy variable indicates how much effect this particular set of unquantifiable factors that the variable expresses had on the constant terms in the regression.

See Business Statistics

at 394-95.

(xvi) Since — unlike in the World War II example provided in note 44 of this Opinion — there is no information establishing either the fact or the span of any Chinese collusive agreements (among Defendant or all Chinese magnesite exporters, or other entities), the Court construes Lamb’s resort to dummy variables as Lamb’s presumption that a “certain” factor (or a certain combination of certain factors) fluctuated with 0.04 coefficient to Chinese prices on magnesite-based products during the years 2000-2003, and with 0.195 coefficient during the 2004-2007 period. However, the Court has no reason to presume that this “certain” factor was Chinese collusive agreements rather than a collusion-unrelated economic factor other than the six independent variables selected by Lamb (that is, other than growth in Chinese steel production, growth in Chinese cement production, domestic inflation of the Yuan and fluctuation of the Yuan versus the United States Dollar and SDR).

Yet, in a

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purely conclusory fashion, the Report deduces from Lamb’s Regression Result the following statement:

The [dummy] variables included in the model measure the extent by which prices were higher as a result of the

alleged conspiracy

in this matter. These variables are both statistically significant. This result means that class members were all harmed in that they paid a higher price for magnesite products

as a result of the alleged conspiracy.

Docket Entry No. 28-6, at 16 (emphasis supplied).

(xvii) Moreover, the Report not only declares, in conclusory fashion, that Lamb’s artificially created dummy variables must be collusive activities of Defendants, the Report also omits to inform the Court of any results of the benchmark comparison of posb-2000 data and 1995-2000 data that was promised by Lamb at the outset of his Report.

See id.

at 10-11 (promising such comparison by stating that “[r]egression is an appropriate technique in this context because it controls for the impact of each explanatory variable upon the dependent variable, while allowing me to quantify the difference between prices during the alleged conspiracy and the benchmark period, e.g. the overcharge”). Instead, the Report merely states:

Table 3 [ (“Table 3”), replicated below,] shows the estimated overcharges from the regression model. These results show the percentage by which prices for magnesite were higher as a result of the alleged conspiracy. In order to obtain the percentage overcharge from the estimated coefficient it is necessary to make a technical adjustment. The conspiracy had greater impact in the period after 2004, since the estimated overcharge on magnesite prices was higher during that time period.

[[Image here]]

Id.

at 16 and n. 35.

In other words, the Report seems to substitute the promised benchmark analy

*360

sis by a percentile conversion of the coefficients of arbitrarily labeled dummy variable with the goal of restating the very same inexplicable conclusion,

ie.,

that Chinese magnesite prices during 2000-2007 had to be affected by certain “Chinese” collusive activities.

(xviii) Re-repeating the same once again, the Report concludes with Lamb’s assertion that, “[b]ased on [his] analysis of the market for Chinese magnesite[, Lamb] ha[s] determined that all class members were injured as a result of the alleged conspiracy.”

Id.

at 18. However, in light of the above-discussed chain of deficiencies (e.g., the unwarranted assumption that the facts borrowed from dismissed Original Complaint were true; the failure to provide the Court with Lamb’s pools of data, the sources of this data, as well as with Lamb’s regression equations; the discrepancies between the figures and statements made in the Report and Lamb’s Regression Results; the discrepancies between the figures and statements made in the Report and the statements made in the Amended Complaint; the inexplicable dedueement that Lamb’s dummy variables were necessarily representative of collusive activities; failure to perform the benchmark analysis originally presented as the key analytical step; etc.), the Court cannot accept the Report as proof that “Chinese” collusive activities actually took place and/or that these activities were the source of increase in magnesite prices.

A fortiori,

the Court cannot apply Lamb’s conclusions specifically to Defendants.

With that, the Court now returns to the second sentence composing Plaintiffs’ Paragraph Sixty-Five (asserting that “[a]n overcharge analysis from a regression model by ... Lamb ... shows that, between 2000 and 2003, the Cartel overcharged U.S. buyers of magnesite by an average of 4 percent, while between 2004 and 2008, as a direct result of the Cartel’s activities, U.S. magnesite purchasers were overcharged more than 21 percent”). Am. Compl. ¶ 65. This statement is incorrect even regardless of above-discussed shortcomings of the Report, since the Report neither speaks in terms of “Cartel’s activities” (rather, it asserts “overall Chinese” activities) nor covers the year 2008 and any time thereafter (rather, it covers only the period from July 2000 to July 2007). Moreover, the Report merely suggests that the increases in Chinese prices might have been related to intensification of certain factor(s), some of which were assessed through, allegedly, actual pools of data.

*361

The Report, however, clearly states that the “collusion factor” was merely hypothesized by Lamb into a dummy variable as a result of Lamb’s taking Plaintiffs’ allegations in the Original Complaint as true facts. Simply put, Lamb’s Report can be reduced to a sophistic statement, “if Plaintiffs’ factual assertions are true, then Lamb’s calculations of Plaintiffs’ factual assertions shows that these assertions are true.” Such statement establishes neither

Defendants

’ intent nor even anyone’s intent to affect United States commerce; moreover, it does not even establish the “directness” of these “someone’s” actions (since, according to Lamb’s results, the collusive activities, even during the “high-tide” period, caused only a price increase of $2.16 per metric ton).

Consequently, Plaintiffs’ second sentence in Paragraph Sixty-Five appears to be nothing but Plaintiffs’ unwarranted distortion of the already insufficient Report. In light of the foregoing, the Court will disregard the content of this Paragraph for failure to provide any relevant factual proof of Plaintiffs’ position.

Paragraph Seventy-Two

Next paragraph,

ie.,

Paragraph Seventy-Two, alleges as follows:

During the conspiracy, prices of magnesite and magnesite products exported to the United States from China have not followed the laws of supply and demand [which, in Plaintiffs’ opinion, should] exist in a competitive market. Instead, prices have been set and maintained at artificially high levels by Defendants and their [unspecified] co-conspirators.

Am. Compl. ¶ 72.

Both of these statements fail to provide the Court with any proof necessary for the factual review, as defined in

Turicentro

(moreover, these statements fail to meet even the pleading requirements, as construed by

Twombly

and

Iqbal).

Indeed, the first sentence offers the Court only Plaintiffs’ self-serving simplistic construction of economic models, virtually repeating the error of the above-discussed Paragraph Fifty-Five.

See supra,

note 22 of this Opinion (explaining the fallacy of Plaintiffs’ overly simplified position). The second sentence does not even aim to state a fact: rather, it offers the Court a recital of a Sherman Act requirement, but attempts to disguise that recital as a fact. However, such pleading is insufficient even for the purposes of facial review.

See Iqbal,

129 S.Ct. at 1949-54 (“the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions [or to t]hreadbare recitals of the elements of a cause of action, supported by mere eonclusory statements[,

ie.,

by] legal conclusion^] couched as a factual allegation [e.g.,] the plaintiffs’ assertion of an unlawful agreement [or] that [defendants] adopted a policy ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group”) (citation omitted). Needless to say, such recital of legal elements fails to provide any proof for the purposes of factual review. Therefore, the Court will disregard the content of Para

*362

graph Sixty-Three for the purposes of its jurisdictional assessment.

Paragraph Seventy-Five

Finally, Paragraph Seventy-Five asserts:

Defendants’ combination and conspiracy have had the following effects, among others: (a) [t]he price of magnesite and magnesite products purchased by Plaintiffs ... has been fixed, raised, maintained and stabilized at artificial and non-competitive levels; (b) [c]ompetition in the sale of magnesite and magnesite products has been restrained.

Am. Compl. ¶ 75.

The shortcomings of this Paragraph are identical to those of Paragraph Seventy-Two,

ie.,

Plaintiffs state nothing but a set of legal conclusions depicting “a” Sherman Act scenario and merely paste Defendants’ name and the product’s name into the picture in an effort to repackage their self-serving legal conclusions into a statement sounding like an assertion of fact. Since the Supreme Court expressly cautioned against such pleading practices even for the purposes of facial review,

see Iqbal,

129 S.Ct. at 1949-54 , the Court certainly cannot accept Plaintiffs’ bare legal conclusions as proof for the purposes of factual review, as defined in

Turicentro.

Therefore, this final set of allegations made by Plaintiffs in an attempt to establish that this Court has subject matter jurisdiction over this case under the FTAIA exception will also be disregarded.

Amended Complaint Fails to Meet the FTAIA Exception

As the foregoing discussion illustrates, not a single Paragraph of the Amended Complaint among those advertized in the Opposition as providing the Court with factual proof as to the Court’s subject matter jurisdiction under 15 U.S.C. § 6a(l)(A) lives up to its promise. The bulk of Plaintiffs’ pleadings related to the FTAIA exception fail to assert any facts (offering, instead, a kaleidoscope of self-serving conclusions and/or recitals of legal elements) and the remainder of Plaintiffs’ statements assert facts that either negate Plaintiffs’ claims or are self-contradicting, or inapposite to Plaintiffs’ position, or unwarranted in light of Plaintiffs’ own evidence, or based on deficient assumptions and inexplicable conclusions. Since Plaintiffs failed to offer the Court even a single factual proof meeting the Rule 12 review, as articulated in

Turicentro,

the Court is constrained to conclude that Plaintiffs’ Amended Complaint asserts Sherman Act claims (based on Defendants’ status as exporters of Chinese magnesium oxide) that fall outside the Court’s subject matter jurisdiction, and these claims should be dismissed.

Such conclusion, however, does not dispose of another reading of the Amended Complaint, which seems to suggest that Plaintiffs might be suing Defendants not in Defendants’ capacity as exporters of Chinese goods but as importers of goods into the United States. The Court, therefore, now turns to such reading of the Amended Complaint.

Subject Matter Jurisdiction Under the Introductory Clause of the FTAIA

As noted

swpra,

the FTAIA, in its introductory clause provides that:

[The Sherman Act] shall not apply to conduct involving trade or commerce

{other than import trade or import commerce

) with foreign nations.

15 U.S.C. § 6a (emphasis supplied). Hence, in perhaps ineloquent but nonetheless unambiguous terms, Section 6a provides that the FTAIA-based jurisdictional bar is wholly inapplicable to pleadings alleging that the wrongful conduct was undertaken by defendants as

porters (rather than as exporters). The Court’s

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December Opinion already reviewed the Court of Appeals’ guidance as to the issue of whether the defendants are importers or exporters:

[T]he FTAIA asks whether [the] defendants were “involve[d in] import trade or import commerce.”

See Carpet Group,

227 F.3d at 69, 72 . If all that defendants were doing was actually bringing goods or services into the United States, then the FTAIA ... is not even triggered,

i.e.,

the claim [against the defendants] squarely falls within the scope of the Sherman Act.

See Turicentro,

303 F.3d at 302 (“[While the FTAIA] does not define the term ‘import,’ ... the term generally denotes a product (or perhaps a service) has been brought into the United States from abroad”) (citing Webster’s Third New Int’l Dictionary (1986); Black’s Law Dictionary (6th ed. 1990)). However, if “[defendants did not directly bring items or services into the United States ..., they cannot be labeled ‘importers,’ [nor could it be said that defendants] have they engaged in ‘import trade or commerce.’ ”

Id.

In other words, even if a certain importer purchased or otherwise obtained the defendants’ product in a foreign market (be it the defendants’ national market or any other market) and brought the defendants’ product into the United States, the fact that the product eventually found its way into the United States does not transform the defendant into an “importer” and, hence, an antitrust claim against the defendants must pass muster under the FTAIA[‘s “substantial, direct and reasonably foreseeable” exception] before the Sherman Act claim can be entertained.

See id.

at 304 (The fact “[t]hat ‘some of the goods purchased in [a foreign market] may ultimately have been imported by individuals into the United States’ [is] immaterial to determining if defendants [are] involved in ‘import trade or import commerce’ [since the defendants’ own] actions did not directly increase or reduce imports into the United States”) (quoting

Kruman v. Christie’s Int’l PLC,

284 F.3d 384 , 395 (2d Cir.2002)).

Docket Entry No. 73, at 26-27 (emphases removed).

1. Plaintiffs’ Allegations

The allegations stated in the Amended Complaint are less than clear as to whether Plaintiffs are suing Defendants as

porters or as

porters.

Specifically, some Plaintiffs’ claims use the term “import” and the phrase “sale of magnesite products to customers

the United States” (rather than “sale

United States customers,” which could have been taking place

outside

the United States).

See

Am. Compl. ¶¶ 1-2 (asserting that “[t]his action seeks no damages or relief with respect to non-import foreign commerce,” “Defendants have directly sold and delivered magnesite and magnesite products to customers in the United States”). However, while some Defendants are named as entities that “directly sold ... and

shipped magnesite products to the United States

during the period described in the [Amended] Complaint,”

id.

¶ 12-13, 15, 19-20, 22-25 and 27 (emphasis supplied), hence suggesting that Defendants were

porters, other Defendants are described as “produeer[s] and

porter[s] of magnesite,” suggesting that Defendants were not importers at all.

Id.

¶¶ 17, 26 (emphases supplied). To add to the uncertainty, Plaintiffs’ Paragraph Fifty-One outright merges the “substantial, direct and reasonably foreseeable effect on United States commerce” language of the FTAIA exception from 15 U.S.C. § 6a(l)(A) (applicable to

porters of goods that are brought into the United States by others) with an assertion that

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Defendants, on their own, brought these goods into the United States.

See id.

¶ 55 (“The conduct of Defendants ... has directly, substantially and foreseeably restrained trade and commerce in the United States. [They] directly sold [their goods] in United States commerce”). Finally, to make Plaintiffs’ allegations even more confusing, the Amended Complaint opens with the sentence asserting that Defendants ha[d] “the purpose and effect of fixing prices of magnesite ... products

exported

to ... the United States,”

id.

¶ 1 (emphasis supplied), but then immediately proceeds to state that “Defendants have directly sold and

delivered

magnesite ... to customers

the United States.”

Id.

¶ 2 (emphasis supplied). These inconsistent allegations necessarily allows for two readings of the Amended Complaint: (1) one, where Plaintiffs seem to assert inapplicability of the FTAIA jurisdictional bar on the grounds of the § 6a(l)(A) exporter exception ( addressed in the prior section of this Opinion); and (2) another, where Plaintiffs seem to assert an “altogether” inapplicability of the FTAIA on the grounds that Defendants were importers (i.e., relying on the FTAIA’s introductory clause). Plaintiffs’ statements to the latter effect could be roughly subdivided into three categories: (1) Plaintiffs’ conclusory references to certain Defendants as entities that “directly ... shipped magnesite products to the United States during the period described in the [Amended] Complaint,”

id.

¶ 12-13, 15, 19-20, 22-25 and 27; (2) Plaintiffs’ legal position that Defendants were importers because American entities either purchased Defendants’ goods or consumed/resold these goods in the United States; and (3) Plaintiffs’ assertion that Defendants were importers in light of the evidence contained in certain Plaintiffs and Defendants’ exhibits.

The first category, consisting of numerously repeated factless self-serving assertions, cannot support Plaintiffs’ position even for the purposes of facial review under the standard articulated in

Iqbal and Twombly

and, a

fortioñ,

is insufficient for the purposes of factual review, as defined in

Tuñcentro.

Hence, this category of conclusory statements will be disregarded without further discussion. However, Plaintiffs’ position based on alleged Defendants’ sales to “American” entities, as well as Plaintiffs’ reliance on certain exhibits, warrants a detailed review.

2. Claim That Defendants Effectively Acted as Importers

The Amended Complaint is void of any factual statements or references to exhibits related to Defendants’ alleged importation of goods into the United States.

See, generally,

Am. Compl. However, Plaintiffs’ included in their amended pleadings a statement seemingly aiming to assert purchases of Defendants’ goods by an entity which, upon bringing these goods to the United States, resold them to Plaintiffs (and, hence, introduced these goods in United States stream of domestic commerce).

See id.

¶ 11.

Specifically, Plaintiffs’ Paragraph Eleven reads:

Possehl, Inc. [ (“Possehl”) ] has assigned to [Plaintiffs all Possehl’s] rights, title and interest in and to all causes of action it may have relating to magnesite or magnesite products brokered by Possehl, Inc. and subsequently delivered to [Plaintiffs] during the relevant period. Possehl, Inc. purchased magnesite and magnesite products directly from [Defendants during the [relevant] period and shipped those products to [Plaintiffs].

Id.

All other relevant statements made in the Amended Complaint are entirely fact-less,

i.e.,

they present mere conclusory assertions lacking even verbal specificity, let alone actual factual proof.

See

Am. Compl. ¶¶ 12-13, 15, 19-20, 22-25 and 27.

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Yet, Plaintiffs’ factual assertions currently before the Court are not limited to the above-quoted two sentences in Paragraph Eleven. Rather, these statements and evidentiary material are contained in Plaintiffs’ Opposition and exhibits attached thereto.

See

Docket Entry No. 105. Plaintiffs’ inclusion of these statements (and exhibits) in their Opposition rather than in their Amended Complaint is a procedural oversight, since a litigant cannot plead claims, state and/or support facts by any non-pleading document, be it moving papers, an opposition to adversaries’ motion, the litigant’s traverse, etc.

See, e.g., Bell v. City of Phila.,

275 Fed.Appx. 157, 160 (3d Cir.2008);

Gilmour v. Gates, McDonald & Co.,

382 F.3d 1312, 1315 (11th Cir.2004);

Veggian v. Camden Bd. of Educ.,

600 F.Supp.2d 615, 628 (D.N.J.2009). However, for the purposes of this Opinion only, the Court will consider Plaintiffs’ Opposition statements and exhibits attached thereto as if they were included in the Amended Complaint by reference, via the above-quoted statement made in Paragraph Eleven.

Plaintiffs’ Legal Position

Plaintiffs’ legal position is not entirely clear, granted that Plaintiffs assert:

Defendants ... directly sold magnesite to U.S. customers for delivery in the United States during the relevant time period.... Contracts previously submitted to the Court establish that [Defendants] sold magnesite to U.S. companies pursuant to contracts requiring delivery to the United States. Publicly available import records confirm that ... Defendants ... sold magnesite directly to customers in the United States for delivery in the United States.

Courts have uniformly concluded that the FTAIA exception for conduct involving import trade applies to claims by domestic importers arising from direct purchases of price-fixed goods.

See, e.g., The ‘In’ Porters, S.A. v. HonesPrintables [Hanes Printables

Inc.,

663 F.Supp. 494, 499 (M.D.N.C.1987) (applying FTAIA to claims of antitrust plaintiffs “other than [] domestic importers]”);

Coors Brewing Co. v. Miller Brewing Co.,

889 F.Supp. 1394, 1398 (D.Colo.1995) (stating that the FTAIA applies to antitrust plaintiffs’ claims “with the exception of claims brought by domestic importers”);

see also Caribbean Broad Sys. Ltd. v. Cable and Wireless PLC,

1995 U.S. Dist. LEXIS 19225 , C.A. No. 93-2050, 1995 WL 767164 , at *2 (D.D.C. Dec. 21, 1995),

rev’d on other grounds,

148 F.3d 1080 (B.C. [D.C.] Cir. 1998) (noting that the FTAIA “makes clear that the concern of the antitrust laws is protection of American consumers and American exporters, not foreign consumers or producers”).

Kruman v. Christie’s Int’l PLC,

284 F.3d 384 , 398 (2d Cir.2002)[,] the defendant auction houses were accused by plaintiffs that had purchased goods at auctions outside of the United States of conspiring to fix commissions on foreign auctions. In concluding that the import trade exception did not apply, the Second Circuit noted that, although “some of the goods purchased in those auctions may ultimately have been imported by individuals in the United States,” “the commerce that is the focus of this case is the charging of fixed commissions on the purchase and sale of goods at foreign auctions, not the trade in and subsequent movement of the goods that were purchased and sold.”

Id.

at 395-96.

Opp. at 14-15, 27-28.

Plaintiffs’ invocation of

The ‘In’ Porters

does not seem to raise any legal point worthy of discussion, since it merely reiterates the Court’s reading of the FTAIA

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as wholly inapplicable to claims against importers that bring goods in the United States. Similarly, Plaintiffs’ reliance on

Kruman

does not seem to add any wrinkle, since the Court of Appeals for the Third Circuit already adopted the

Kruman

point highlighted by Plaintiffs in the Court of Appeal’s

Turicentro

decision.

See

303 F.3d at 302. That adoption of

Kruman

by the Court of Appeals was already duly noted by this Court in its December Opinion, when the Court states:

“[while the FTAIA] does not define the term ‘import,’ ... the term generally denotes a product (or perhaps a service) has been brought into the United States from abroad.”

[Turicentro,

303 F.3d at 302.] However, if “[defendants did not directly bring items or services into the United States ..., they cannot be labeled ‘importers,’ [nor it could be said that defendants] have they engaged in ‘import trade or commerce.’ ”

Id.

See id.

Kruman,

284 F.3d [at] 395).

Docket Entry No. 73, at 26-27.

Hence, the excerpt from Plaintiffs’ Opposition quoted at the outset of this subsection leaves the Court with only two Plaintiffs’ quotations, one from

Carribean

and another from

Coors.

However,

Carribean

is wholly inapposite to the case at hand since it deals with the issue of whether a purchaser in a foreign country can bring a Sherman Act claim based on foreign harm; this question was answered in the negative by the Supreme Court in

Empagran S.A.,

542 U.S. 155 , 124 S.Ct. 2359 . One court explained and illustrated the issues associated with the

Carribean

language quoted by Plaintiffs as follows:

In asserting [that they have standing to sue], Plaintiffs rely on the FTAIA’s introductory language, which states that the FTAIA’s requirement of a “direct, substantial, and reasonably foreseeable effect” on domestic commerce applies to claims “involving trade or commerce (other than import trade or import commerce) with foreign nations.” Based on this language, Plaintiffs assert that the parenthetical exclusion of “import trade or import commerce” means that a foreign antitrust claim need never satisfy the FTAIA as long as it involves products that might be shipped to the United States.... The court determines that Plaintiffs’ position is not a correct statement of the law. The “main significance” of the FTAIA is to “make[ ] clear that the concern of the antitrust laws is protection of American consumers and American exporters, not foreign consumers or producers” .... Phillip Areeda & Herbert Hovenkamp, Antitrust Law P 272h2, at 362-63 (1997) .... The antitrust laws’ goal of protecting American consumers and producers cannot realistically be served by Plaintiffs’ version of the FTAIA, which would permit for

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eign plaintiffs to bring treble damages suits based on conduct that has only-indirect, insubstantial, and unforeseeable effects on commerce in this country.

United Phosphorus, Ltd. v. Angus Chem. Co.,

131 F.Supp.2d 1003, 1022 (N.D.Ill. 2001).

Since Plaintiffs’ reference to

Carribecm

is inapposite to the matter at hand, the Court is left to distill Plaintiffs’ position from: (a) Plaintiffs’ mentioning of Possehl in Paragraph Eleven of the Amended Complaint,

see

Am. Compl. ¶ 11; (b) Plaintiffs’ thrice paraphrased assertion that Defendants “sold magnesite to U.S. customers for delivery in the United States,” “sold magnesite to U.S. companies pursuant to contracts requiring delivery to the United States,” and “sold magnesite directly to customers in the United States for delivery in the United States,” Opp. at 14-15; and (c) Plaintiffs’ quotation from Coors that suggests Plaintiffs’ reading of Coors as a case standing for the proposition the FTAIA jurisdictional bar is inapplicable to the claims brought

plaintiffs who are

United States importers. See id.

at 27. Read jointly, these statements seems to express Plaintiffs’ position that a foreign

porter automatically becomes a

de facto im

porter of goods in the United States (and, hence, automatically loses his/ her ability to invoke the FTAIA jurisdictional bar) if: (a) that exporter sells his/ her goods to an

porter that is/labels/deems itself an American entity; and (b) that importer brings the goods purchased from that exporter into the United States, either for the importer’s consumption or for the importer’s further re-sale of these goods to other American end-users.

Accord

Opp. at 27 (titling this section of the Opposition as “The Sale of ... Products

to U.S. Companies for Delivery in the United States

is ‘Conduct Involving’ ‘... Import Trade or Import Commerce’ ”) (emphasis supplied).

Presuming that the Court correctly distilled Plaintiffs’ legal position, such position — as explained below — is without merit and, hence, Plaintiffs cannot reclassify Defendants-ex porters into

porting entities prevented from invoking the FTAIA jurisdictional bar.

Coors Does Not Lend Support to Plaintiffs’ Legal Position

Writing one of the very few pilot FTAIA decisions, the court in

Coors

grappled with a question completely different, both factually and legally, from the issue of what circumstances could reclassify an

porter defendant into an importer.

See Coors Brewing Co. v. Miller Brewing Co.,

889 F.Supp. 1394 . With finesse of sub-agreements addressed in

Coors

being factored out, the circumstances in

Coors

were as follows: Coors Brewing Company (a Colo

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rado corporation engaged in the business of brewing, marketing, and distributing beer) entered into a licensing agreement with Molson Breweries of Canada (a Canadian corporation, also in the beer industry), pursuant to which Molson would brew and distribute Coors products in Canada.

See Coors Brewing Co. v. Molson Breweries,

51 F.3d 1511, 1512-13 (10th Cir.1995). Thereafter, Miller Brewing Company (a Wisconsin corporation also in the business of brewing and marketing beer) entered into a partnership with Molson; under that agreement, Miller became the exclusive distributor of Molson’s products in the United States, and Molson became the exclusive distributor of Miller’s products in Canada.

See id.

At no point in the

Coors

litigation did Molson and/or Miller deny the existence of the Miller-Molson alliance, pursuant to which Molson and Miller jointly targeted United States and Canadian markets through coordination of their marketing and pricing.

See id.) see also Coors,

889 F.Supp. 1394 . In light of this Miller-Molson agreement, Coors initiated a legal action asserting that the MillerMolson alliance limited Coors’ ability to

port its beer to Canada and, in addition, “somewhat restrained” trade in the United States.

See Coors,

889 F.Supp. at 1397 . In response, Miller and Molson asserted that Coors’ claim was jurisdictionally barred by the FTAIA, and that the FTAIA’s “direct, substantial, and reasonably foreseeable effect” exception (restoring jurisdiction) did not apply.

See id.

at 1397 . Presented with such contentions, the District of Colorado ruled that the Molson-Miller alliance “satisfie[d] both subsections ... of the FTAIA [exception] because it ha[d] a direct, substantial, and reasonably foreseeable effect not only on Coors’ export trade with Canada, but also, albeit less directly, on the United States beer market.” In other words, the

Coors

court made its finding primarily under subsection (1)(B) of the FTAIA, which: (a) removes the jurisdictional bar with regard to claims asserting “direct, substantial, and reasonably foreseeable [effect] on

export

trade [of American entities selling

] foreign nations,”

see id.

(emphasis supplied); and (b) is entirely inapplicable to the matter at hand, since — here—Plaintiffs are not suing in Plaintiffs’ capacity as exporters of goods to China or to any other nation.

At no point did the

Coors

court deal with the question of whether Molson, an

porter, could be re-characterized into an importer of Canadian beer to the United States on the grounds that Miller was “directly” bringing Molson’s goods into the United States for sale to American consumers: the importer/eicporter roles in

Coors

were firmly allocated and never contested by the parties.

With that observation, the Court now turns to the

Coors

sentence quoted by Plaintiffs; the paragraph from which Plaintiffs extracted that sentence reads, in its entirety, as follows:

Although cases applying the FTAIA are few, its “inelegant” language has been interpreted to mean that

with the exception of claims brought by domestic importers,

the Sherman Act will not apply to conduct affecting foreign markets, consumers or producers unless there is

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also a direct, substantial, and reasonably foreseeable effect on the domestic market (subsection (1)(A)) or on opportunities to export from the United States ((1)(B)).

{See

] P. Areeda & H. Hovenkamp, Antitrust Law ¶ 236’a at pp. 306-07 (1993 Supp.);

see McGlinchy v. Shell Chemical Co.,

845 F.2d 802, 813 (9th Cir.1988) (allegations of a refusal to deal in foreign markets injuring only foreign customers and plaintiff insufficient to confer antitrust jurisdiction under FTAIA);

The ‘In’ Porters, S.A. v. Hanes Printables, Inc.,

663 F.Supp. 494, 498-99 (M.D.N.C.1987) (French garment distributor had no cause of action under federal antitrust laws absent evidence of injury within the United States);

Liamuiga Tours v. Travel Impressions, Ltd.,

617 F.Supp. 920, 922-23 (E.D.N.Y.1985) (court lacked jurisdictional nexus under the FTAIA where restraint of trade and conspiracy claims involved exclusively lost business and anti[-]competitive effects in St. Kitts).

Id.

at 1397-98 (language quoted in Plaintiffs’ Opposition italicized).

In light of the

Coors

court’s references to Areeda & Hovenkamp,

McGlinchy, The ‘In’ Porters

and

Liamuiga Tours ,

none of which suggests, even remotely, that an

porter could be “re-characterized” into an importer if a catering-to-Americans importer or an American end-user purchases the exporter’s goods in a foreign market, this Court cannot exclude the possibility that the

Coors

court’s phrase “with the exception of claims brought

domestic importers” (which, it seems, merely made a generic reference to the introductory clause of the FTAIA) was meant to read “with the exception of claims brought

against

domestic importers,”

i.e.,

that the

Coors

court merely summarized the introductory language of the FTAIA stating the statute’s inapplicability to claims against importers of goods into the United States. So read, the

Coors

decision certainly cannot support Plaintiffs’ position, while— read otherwise — it would be mere

dicta.

Plaintiffs’ Position Contradicts the Gist of the Third Circuit Law

As noted

supra,

the Court of Appeals for the Third Circuit provided some guidance as to what entity qualifies as an “importer” for the purposes of the FTAIA analysis, stating that, while the FTAIA “does not define the term ‘import,’ ... the term generally denotes a product [that] has been brought into the United States from abroad. [If defendants did not directly bring items or services into the United States ..., they cannot be labeled ‘importers.’ ”

Turicentro,

303 F.3d at

*370

302. This definition, while undoubtedly helpful, does not, however, provide a bright-line test as to what process qualifies as “bringing” a product into the United States. True, such inquiry is easy in a scenario where the buyer “X” goes to country “Y” and — upon purchasing goods from the selling entity “Z” — brings these goods into the United States and consumes the goods or resells them within the United States: in such case, “X” is undoubtedly the “importer” of Z’s goods. (Alternatively, if Z brings Z’s goods into the United States and then sells them to X, then Z is both an exporter from Z’s country and, also, an importer for the purposes of the United States. However, modern trade is a process infinitely more complicated than the above-described simple scenarios. For instance: (a) seller Z typically receives a pro-forma offer from an intermediary “A” who, in turn, is interested in Z’s goods because he either already has a pro-forma offer to buy from a purchaser X or anticipates such offer from X and/or from other X-like buyers; (b) in response to or in anticipation of X’s offer, A obtains price quotes from Z and then quotes to X and X-like buyers A’s price list (which, typically, factors in A’s surcharge); (c) if X contacts A (or already contacted A), accepts A’s quotes and

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places X’s order, then A agrees with both Z and X on the terms of getting the goods from Z and payments to Z, as well as on getting the goods to X and payments from X (that is, unless A already had some arrangement in place with either X or Z, or both); (d) then, typically on agreement or at least in consultation with either X or Z, or both, A arranges for freight forwarder “B” to deliver the goods (that is, unless X or Z already have certain exclusive or preferred freight forwarding arrangements in place); and (e) upon issuance of a stream of negotiable instruments and a chain of payment instruments,

e.g.,

letters of credit, bill of lading, etc., the goods (accompanied by negotiable instruments) begin their voyage from Y to their first port of destination, while the payment instruments start

en route

from X to A and then from A to Z.

See, e.g.,

Ralph H. Folsom et al.,

International Business Transactions

28-299 (West 3rd ed. 1995) (taking almost 300 pages to sketch just the basic financial and legal steps associated with international trade in goods). And, since the above-outlined chain of transactions is still a very simplistic way to define the actual intricacies of the trade process, the answer to the question of which entity or entities “bring(s)” Z’s goods into the United States,

see Turicentro,

303 F.3d at 302, might be less than obvious.

Defendants seem to suggest that this question should be decided on the basis of the particular Incoterms governing Defendants’ sale of goods contracts.

See, e.g.,

S/Reply at 11. Plaintiffs, in turn, move the Court to wholly ignore the Incoterms used in Defendants’ sales contracts and, instead, determine Defendants’ importer/exporter status on the basis of the country of the first official port of destination where the goods were shipped from the seller’s country.

See

Opp. at 28-29 (citing contract law cases assessing transfer of title and risk of loss associated with injury

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to or destruction of goods). The Court finds both positions equally unpersuasive.

Defendants’ hard-and-fast rule based on the Incoterms ignores: (a) the fact that the meaning of any Incoterm is subject to alteration upon agreement between parties (and such alteration might even be a result of a condoned conduct),

see supra

note 53 of this Opinion; and (b) the axiomatic proposition that form shall not be elevated over substance, and thus the actual content of the contract — rather than its title/caption/headings — governs the actions of contracting parties.

See, e.g.

Farnsworth,

Contracts

§ 6.3 (1982) (the determination of the nature of a transaction “is a question of substance rather than form”);

In re Underwood,

2004 WL 5607954 , 2004 Bankr.LEXIS 1461 (Bankr.E.D.Wash. Apr. 9, 2004) (“A classic maxim of contract construction dictates that [the] substance of the parties’ transaction governs how their relationship is defined rather than the label or form used”);

In re Associated Bicycle Serv.,

128 B.R. 436, 458 (Bankr.N.D.Ind.1990) (“The substance of the agreement, rather than its form, is the material issue”).

Plaintiffs’ mechanical position focusing on the “first port of destination” fares even worse, not just because it aims to import a string of largely irrelevant considerations of contract law into the predominantly policy-driven FTAIA regime, but because adoption of Plaintiffs’ simplistic model would automatically transform any foreign seller into a United States importer if the sellers’ goods reach the United States without a detour; that would be so regardless of whether or not the seller even cared about where the buyer of the seller’s goods would take them. Since, as Judge Hand aptly noted, the idea that Congress meant to mechanically “punish all whom [United States] courts can catch” is incompatible with both the spirit of American antitrust law and constitutional mandate,

Alcoa,

148 F.2d at 443-44 , Plaintiffs’ “first destination port” model would result in an impermissible overreaching and undue “exportation of American law.”

Consequently, the Court rejects both sides’ invitations to adopt a perfunctory rule and turns to the Court of Appeals’ observation that importation is, effectively, a process of “bringing” goods into the United States from abroad.

See Turicentro,

303 F.3d at 302. A dictionary meaning of the verb “bring” is to “cause to come along with one toward [a certain] place” or “to cause to move in a special way.” < <http://www.merriam-webster.com/ dictionary/BRING>>. While, indeed, this definition is moderately precise at best, it establishes the presence of at least one indelible attribute,

ie.,

the harbinger’s act of pioneering a certain cause, which — upon a chain of later developments — eventually results in physical transition of the seller’s goods to the buyer’s country. Translated in terms of international trade, such attribute necessarily begs the question “was it mainly the seller who engaged his/her agents and/or independently contracted third parties in order to physically tender the seller’s goods for sale on the buyer’s soil, or was it mainly the buyer who engaged the seller and/or independent third parties in order to have the seller’s goods materialize on the soil of the buyer’s country?”

Accord U.S. v. Berkos,

543 F.3d 392, 396-97 (7th Cir.2008) (“We assume that the legislative purpose [of the statute] is expressed by the ordinary meaning of the words used”). Such question seems to be warranted since it: (a) corresponds to the FTAIA’s general objective of limiting the extraterritorial reach of American antitrust law while preserving protections for American consumers; and (b) does not render any portion of the statute “redundant or meaningless.”

See id.

In light of the foregoing, it appears that the term “importer” employed in the introductory language of the FTAIA would be best read

*373

as referring to the “main force” behind the physical movement of goods to the United States; such inquiry is, by definition, unamenable to any hard-and-fast rule and must be resolved on a case-by-case basis.

The only aspect appearing certain is that a plaintiff (who is asserting that a purely foreign seller is, effectively, not a “real” exporter but a

de facto

importer “bringing” the goods into the United States within the meaning of the introductory clause of the FTAIA) has to show that the seller’s activities were “direct” in a degree higher that required under 15 U.S.C. § 6a(l)(A), with regard to exporters: the “directness” under the introductory clause should yield such substantial contacts between the seller and the United States that it establishes a nexus roughly corresponding, in its magnitude, to the nexus needed to show the “directness” sufficient to remove the FSIA-based presumptive immunity under the “commercial activity” exception set forth in 28 U.S.C. § 1605 (a)(2): a conclusion otherwise would invite the danger of putting form over substance.

Accord in

*374

fra,

section “The FSIA Appears Relevant to Some Defendants” of this Opinion,

Sales to an “American” Intermediary or End-Consumer

With this conclusion in mind, the Court now turns to Plaintiffs’ alternative position inviting the Court to qualify Defendants as

porters of magnesite-based products to the United States because Defendants sold their goods to,

inter alia:

(a) intermediaries alleging that they were planning an immediate resale in the United States; or/and (b) alleged “American” end-consumers.

See

Opp. at 14-15 and (“Defendant ... conspired ... with other Defendants and co-conspirators that sold magnesite directly to customers located in the United States for delivery in the United States”; “[plublicly available import records confirm that ... Defendants and their co-conspirators sold ... directly to customers in the United States for delivery in the United States”; “[Defendants] were the ‘exporters’ of record for at least 67 direct sales of magnesite to U.S. companies delivered to ports in the United States”; [Defendants] sold magnesite directly to end-users located in the United States, including LWB Refractories in York, Pennsylvania”);

see also

Opp. at 15 and Am. Compl. ¶ 11 (asserting that Plaintiffs acquired the legal rights of Possehl, and that “Possehl [sold] the magnesite to others, including the end-user[s in the United States]”).

The Court rejects Plaintiffs’ argument that the seller’s “importer” status may be deduced from the alleged “nationality” or reselling intentions of the buyer that purchases the seller’s goods. First, the practical implications of such deducement would invite a wholly anomalous scenario where the seller might be able to ensure against legal liability in the United States only if the seller, in each and every transaction: (a) first conducts a full-fledge due diligence investigation of the purchaser’s actual “nationality” or actual reselling intentions; and (b) then delegates a “agent” to follow each particular shipment to ensure that the buyer, in fact, consumes the goods in the United States or actually resells the goods to an American end-user instead of “unduly” diverting the goods to another country, either prior to or after clearance at the United States customs.

Consequently, the Court declines to adopt this wholly anomalous position differentiating between sales to American and non-American end-consumers and intermediaries catering to American and non-American end-users, or between direct and indirect shipments from the country of export

*375

to the United States: the issue whether the seller is an “importer” can neither legally nor logically depend on those acts or intentions of the buyer which the seller cannot control or verify.

3. Plaintiffs’ Factual Proof as to Defendants’ Importer Status

In addition to suggesting the above-discussed two models re-characterizing

porters as importers, Plaintiffs also support their claim that Defendants were importers through three means: (a) Plaintiffs’ own exhibits; (b) certain Defendants’ exhibits; and (c) Plaintiffs’ assertions that Defendants’ statements are self-contradicting. The Court addresses each category in turn.

Plaintiffs’ Own Exhibits

Plaintiffs’ own exhibits are attached to the declaration of Robert A. Magnanini, Esq. (submitted jointly with Plaintiffs’ Opposition); out of the thirty-four such exhibits, Exhibits Five to Nine (docketed as Docket Entries Nos. 105-7 to 105-11) appear relevant to the issue of Defendants’ status as importers of goods to the United States. Each of these Exhibits, in turn, contains numerous print-outs of public records of sales of magnesium oxide; each record has the following information:

(i) a line naming the “manifest commodity” as “dead burned magnesite” and stating the applicable tariff code;

(ii) a line naming the “exporter”; such entry is followed by one of the names of Defendants, with some Defendants being named on numerous occasions, others being named only a few times, and yet others not being named at all;

(iii) a line naming the “importer,”

e.g.,

Possehl (some of these entries are followed by the importer’s address, while others are not);

(iv) a triplet of lines reading “port,” “origination” and “destination,” with each “origination” entry being followed by the name of some port, usually Chinese

(e.g.,

Bayuquan or Derien (former Dalian), or Hsinkang, etc., or simply by the word “China”), and each “destination” entry being followed by the name of some United States port or an approximated area in the United States (e.g., Gramercy, Takoma, New Orleans or just “S[outhern] Louisiana”);

(v) a line indicating “unit of measure”; such entry is followed by a specific figure and a phrase “big bags” or the word “bulk”;

(vi) a line indicating the “weight” of shipment, typically in thousands of pounds;

(vii) a line stating the “ship[ment]-date,” these dates are all post-1999;

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(viii) a line indicating the language, presumably of the print-out, reading “English”; and

(ix) a line stating the “load[ing]-date,” usually sometime in 2004 and 2008; it, presumably, reflects the date of Plaintiffs’ research of the database and downloading of the results.

See

Docket Entries Nos. 105-7 to 105-11.

Organized by: (a) alphabetized names of the entities designated as “importers”; (b) the number of such print-out records per each “importer”; and (c) the number of the particular Plaintiffs’ Exhibit where copies of such print-outs can be found, these Docket Entries Nos. 105-7 to 105-11 could be reduced to the table (“Importers Table”):_

Name of Importer Number of Transactions Exhibit(s)

ACC Resources 6 8,9

Allied Mineral Products 8 5

American Minerals 1 7

Ami Ti-dg_18_6,7,9

Baymag 1 6

CMC Cometals 5 5,8,9

Comsouree 14 9

Epoch Resources 1 6

George William Rueff 6 8,9

Global Minerals 8 8,9

Golden Resources Inti 3 8,9

Lake Resources 13 6,7

LWB Refractories 10 8,9

Possehl 46 5,8,9

Resco Products 1 6

S Intersource 5 9

Schenkers Inti Fwdrs 7 8

Valudor Products 11 8

Vesuvius 2 9

Wide Go US 2 5,9

Worldwide Refractories 1 9

Yas 4 5

Order of Shipper 1 6

Short of identifying the “importer,” none of these print-outs sheds any light on the nature of the underlying transaction. However, even a cursory examination of the Importers Table unambiguously establishes that none of the importers named in the print-outs is a Defendant in this action.

In other words, Plaintiffs’ own Exhibits tend to establish that Defendants were

not

importers of goods in the United States; rather, various intermediaries and end-consumers, including Resco itself, were the actual importers of the goods. If this conclusion is true, then the FTAIA would necessarily apply to Plaintiffs’ claims, and the Court would necessarily lack subject matter jurisdiction over this action and would be constrained to dismiss it.

Discrepancies in Defendants’ Statements

As noted

supra,

Plaintiffs also seek to establish Defendants’ importer status by pointing out that statements made by Defendants are incoherent. Although the incoherence of Defendants’ statements, even

*377

if shown, does not assist Plaintiffs (since the burden to establish jurisdiction in this matter is on Plaintiffs, and Defendants have no obligation to disprove a negative), the Court finds a brief discussion of Plaintiffs’ points warranted. Specifically:

(i) Plaintiffs point to one of Defendants’ previously submitted declarations (which asserted that this Defendant “d[id] not export magnesite from China and d[id] not import magnesite into the United States [but, rather] delivered [it] to the customer, whether a broker ... or an end[-]user, at some location in China [and was] unaware of the ultimate location where the magnesite may be delivered or used,” Opp. at 15 (quoting Docket Entries Nos. 98-16 and 98-17), and argue that this statement contradicts one of Defendants’ previously submitted exhibits (attached to Plaintiffs’ Opposition as Exhibits 3 and 10) which shows Defendants’ awareness of the destination of their goods; Plaintiffs, somehow, deduce from this alleged inconsistency that Defendants must have been “importers” of goods to the United States.

See id.

at 15-16.

Plaintiffs’ make an identical deducement from the inconsistency between: (i) Defendants’ previously submitted declarations asserting that Defendants “s[old] magnesite to brokers ..., which then s[old] the magnesite to others, including the end-user”; and (ii) one of the print-outs reflected in the Importers Table which designated LWB Refractories,

i.e.,

an end-user rather than an intermediary, as “importer.”

See id.

at 16. Finally, pointing out the inconsistency between: (i) Defendants’ previously submitted declarations asserting that Defendants “d[id] not export magnesite from China”; and (ii) bids for export quotas and award of export quotas to Defendants, Plaintiffs, again, somehow deduce that Defendants must have been importers of goods to the United States; and

(ii) Plaintiffs also point out that the Sinosteel Defendants are listed as exporters in 67 print-outs reflected in the Importers Table,

see

Opp. at 16, and that the Sinosteel Defendants’ affiants averred that, as a result of their employ, they obtained personal knowledge of Chinese exportation practices.

See id.

at 16-17. Reading, once again, these statements and facts against Defendants’ previously submitted declarations asserting that they “d[id] not export magnesite from China,” Plaintiffs similarly translate such incoherence into the fact that Defendants must have been importers of goods to the United States.

See id.

The Court disagrees. While the choice of words in Defendants’ declarations may be ambiguous, this language does not state anything but Defendants’ pure exporter status.

Defendants’ Exhibits

Finally, the Court turns to Defendants’ exhibits (rather than declarations) re-submitted by Plaintiffs’ in support of Plain

*378

tiffs’ position that Defendants were importers of goods to the United States.

See

Docket Entry No. 105-5, at 7-8 (“Contract/Exhibit 3”); and Docket Entry No. 105-6, at 6-7 (“Contract/Exhibit 4”).

Unlike Plaintiffs’ print-outs reflected in the Importers Table, both the Contract/Exhibit 3 and the Contract/Exhibit 4 are actual agreements for sale of goods shedding some light on the nature of particular transactions. The Contract/Exhibit 4 was executed between one of the Minmetals Defendants and an entity named “American Minerals, Inc.,” which advertises itself as an intermediary facilitating sales and purchases world-wide.

See <

<http://www.infornine.com/index/ suppliers/American_Minerals,_Inc.html > > (stating on its homepage that it is “Connecting Mining Suppliers & Buyers Worldwide”). The sale in this Contract/Exhibit 4 was executed F.O.B.,

see

Docket Entry No. 105-6, at 6, with a clarification that the goods would be leaving Chinese port Bayuquan

en route

to New Orleans, that “the carrying vessel [would] be provided by the Buyer[, and] partial shipments and trans-shipments [would] not [be] allowed,”

ie.,

that the Buyer was interested in delivering the entire purchase to the United States in one “chunk” and in one “shot,” that is without breaking bulk and without switching from one mode of transportation to another.

Id.

at 6-7. The combination of these statements strongly suggests that American Minerals, Inc., the buyer, was the actual importer in that transaction, and the Minmetals Defendant was acting solely as an exporter seller. In other words, the content of the Contract/Exhibit 4 gives the Court no reason to presume that the FTAIA jurisdictional bar might be inapplicable to Plaintiffs’ claim.

However, the same cannot be said about the Contract/Exhibit 3, which suggests the opposite.

See

Docket Entry no. 105-5, at 7-8. That contract was executed between a seller named “China Metallurgical Import

Export Corporation” (which, according to the Amended Complaint, is a former name of one of the Sinosteel Defendants) and a buyer named “Allied Mineral Products, Inc.,” resident in Columbus, Ohio.

See id.

at 7. The contract arranged for sale of magnesium oxide and for delivery of the goods from Xingang, China, to Columbus.

See id.

at 7. Moreover, the contract specified that: (a) the sale would be C.I.F., that is, with freight and insurance arranged by the seller; and (b) “the carrying vessel [would also] be provided by the Seller[, plus] partial adjustments, transshipment [

(ie.,

that change in the means of transportation) ] and container transportation [would be] allowed,”

id.

at 8, which is hardly surprising since Columbus (being situated on the Scioto River, which is too small for modern commercial shipping) is the place where goods are delivered by air or motor transportation, rather than by ocean vessels. The combination of these statements allows for an inference that Sinosteel, the seller, was the actual importer in that transaction, since it seems that Sinosteel retained a chain of freight-forwarders to transfer the goods to the American soil, clear the goods through the United States Customs onto the American soil, pay the duties, reload the goods and bring them to Columbus. In other words, the Contract/Exhibit 3 strongly suggests the possibility that at least in this transaction one of Defendants might have been an actual importer of magnesium oxide to the United States.

VI.

LEAVE TO AMEND

Ordinarily, the plaintiff may be granted “leave [to amend,] ... when justice so requires.”

See Foman v. Davis,

371 U.S. 178, 182 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962);

Lorenz v. CSX Corp.,

1 F.3d 1406, 1414 (3d Cir.1993). Indeed, “[t]he Federal Rules reject the approach that pleading is

*379

a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”

Foman,

371 U.S. at 182-83 , 83 S.Ct. 227 . However, “[a]llowing leave to amend where ‘there is a stark absence of any suggestion by the plaintiffs that they have developed any facts since the action was commenced, which would, if true, cure the defects in the pleadings ...,’ would frustrate Congress’s objective in enacting this statute of ‘providing] a filter at the earliest stage (the pleading stage) to screen out lawsuits that have no factual basis.’ ”

California Public Employees’ Retirement Sys. v. Chubb Corp.,

394 F.3d 126 , 164 (3d Cir.2004) (quoting

GSC Partners CDO Fund v. Washington,

368 F.3d 228, 246 (3d Cir.2004)). For instance, where the plaintiff had already amended plaintiffs complaint and yet failed to allege sufficient facts, the courts may find that “[the previous number of] bites at the apple is enough,” and conclude that it is proper to deny leave to replead.

Salinger v. Projectavision, Inc.,

972 F.Supp. 222, 236 (S.D.N.Y.1997) (citing

Olkey v. Hyperion 1999 Term Trust, Inc.,

98 F.3d 2 (2d Cir.1996));

Career Educ. II,

2007 WL 1029092 , at *10, 2007 U.S. Dist. LEXIS 23635 , at *36 (where “plaintiffs have had ample opportunities to research and plead their claims,” but failed to compose a sufficient pleading, the complaint is dismissed with prejudice).

The foregoing, however, shall be read in light of the Federal Rule of Civil Procedure 15(a), which provides that, where “a party may amend [its] pleading only by leave of court[, such] leave shall be freely given when justice so requires.” Correspondingly, the Supreme Court has identified several factors to be considered when applying Rule 15(a):

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”

Foman,

371 U.S. at 182 , 83 S.Ct. 227 ;

see also Heyl & Patterson Int’l. Inc. v. F.D. Rich Housing of the Virgin Islands, Inc.,

663 F.2d 419, 425 (3d Cir.1981),

cert. denied,

455 U.S. 1018 , 102 S.Ct. 1714 , 72 L.Ed.2d 136 (1982).

Thus, while “Rule 15(a) gives the court extensive discretion to decide whether to grant leave to amend after the time for amendment as of [right] has passed,” 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure: Civil 2d

§ 1486 (2d ed. 1990), the Rule 15(a) “generous standard is tempered by the necessary power of a district court to manage a case” in light of the factors listed in

Foman. See Shivangi v. Dean Witter Reynolds, Inc.,

825 F.2d 885, 891 (5th Cir.1987). The

Foman

list of factors, however, appears to be non-exhaustive,

i.e.,

leaving it for the district court to consider, on a case-by-case basis, whether consideration of additional factors would be appropriate in order to assure that plaintiff is granted leave “when justice so requires.” Fed.R.Civ.P. 15(a).

Here, two groups of considerations drive the Court’s analysis. The first one consists of the Court’s realization that: (a) since Plaintiffs’ filing of the Original Complaint, the Supreme Court provided guidance in

Twombly

and

Iqbal

as to the construction of Rule 8, archiving the

Conley v. Gibson

standard operable during filing of

*380

the Original Complaint; and (b) the Court’s order accompanying its December Opinion directed Plaintiffs to submit proof for the purposes of factual review, as defined in

Turicentro,

rather than facial review under

Iqbal

and

Twombly .

Implications of Twombly, Iqbal and Factual Review Under Turicentro

Since, as noted

supra,

the Supreme Court issued its

Iqbal

and

Twombly

decisions after the filing of the Original Complaint and the Court’s December Opinion and accompanying order, the Court finds it proper to examine the issue of whether leave to amend should be granted on the grounds of these factors (rather than those expressly listed in

Foman).

The Court believes that the gist of such inquiry is sufficiently analogous to that conducted pursuant to Rule 59(e) and, hence, allows a parallel test.

“Rule 59(e) permits motions to amend or alter a judgment and may be granted to submit new, previously undiscovered evidence or to correct a clear error of law or prevent manifest injustice.”

Gutierrez v. Gonzales,

125 Fed.Appx. 406, 416 (3d Cir.2005) (citing

North River Ins. Co. v. CIGNA Reinsurance Co.,

52 F.3d 1194, 1218 (3d Cir.1995), and

Harsco Corp. v. Zlotnicki,

779 F.2d 906, 909 (3d Cir.1985)). Relief under Rule 59(e) is also appropriate when there has been an intervening change in the controlling law.

See Buffa v. N.J. State Dep’t of Judiciary,

56 Fed.Appx. 571, 574 (3d Cir.2003) (citing Rule 59(e) and New Jersey Local Rule of Civil Procedure 7.1(i)). This Court turns for guidance to a decision the Court finds most pertinent to the circumstances at hand,

Schiller v. Physicians Res. Group, Inc. (“Schiller-Appellate

”), 342 F.3d 563 (5th Cir.2003).

The opinion of the Court of Appeals for the Fifth Circuit in

Schiller-Appellate

was entered in response to an appeal taken by plaintiffs from the decision entered by the District Court for the Northern District of Texas in

Schiller v. Physicians Res. Group, Inc. (“Schiller-District

”), 2002 WL 318441 , 2002 U.S. Dist. LEXIS 3240 (N.D.Tex. Feb. 26, 2002). In

Schiller-District,

the plaintiffs claimed that the defendants made false and misleading statements to investors concerning the issuer’s integration of practices that it had acquired across the nation and other issuer’s business operations in order to inflate stock prices.

See Schiller-Appellate,

342 F.3d at 565 . The

Schiller

plaintiffs filed their complaint in December 1997 and amended their complaint numerous times from July 1998 to December 2000.

See id.

On February 5, 2001, the defendants moved to dismiss the then-pending third amended complaint under Rule 12(b)(6).

See id.

In response — and instead of requesting to amend their then-pending third amended complaint for the fourth time in order to correct the deficiencies— the plaintiffs stood by their third amended complaint and requested the court to grant a further amendment only if the third amended complaint failed to state a claim.

See id.

The district court, in response, found that the plaintiffs’ pleadings failed to state a claim and granted the defendants’ motion to dismiss, but refused to give the plaintiffs “four bites at the apple.”

See id.

at 565-66.

On appeal, the plaintiffs

argue[d] that leave to amend [was] warranted because [the] decision [issued by the Fifth Circuit, that is, the court whose decisions are binding upon the District Court] in

Nathenson v. Zonagen, Inc.,

267 F.3d 400 (5th Cir.2001) represents an intervening change in the law. [The Fifth Circuit] rejected the plaintiffs’] argument for two reasons. First,

Nathenson

was decided on September 25, 2001, approximately five

*381

months before the district court granted the motions to dismiss, and thus cannot constitute an intervening change in the law. Second, [the Fifth Circuit] eonclude[d] that

Nathenson

did not change the law with respect to the pleading requirements .... The Court in

Nathenson

merely confirmed that [a certain element] remained a valid basis for liability under [the applicable law]. [The Fifth Circuit] likewise rejected the plaintiffs’] argument that [other binding decision entered in conjunction with

Nathenson

and reflecting on the pleading requirements], represented] an intervening change in the law. [The plaintiffs were] well aware of the pleading standards, but simply failed to meet them.

Schiller-Appellate,

342 F.3d at 568, n. 3 ;

see also Capstead Mortg. Corp. Secs. Litig.,

2003 WL 22221320 , 2003 U.S. Dist. LEXIS 16525 (N.D.Tex. Sept. 19, 2003) (conducting the same inquiry).

Therefore, under

Schiller-Appellate,

an entry of a binding precedent, which: (a) is issued while the matter is still pending, and (b) clarifies — -rather than alters the existing legal regime — cannot qualify as an intervening change in the law. If so, the Supreme Court’s decisions in

Twombly

and

Iqbal

do not provide this Court with grounds to grant Plaintiffs yet another leave to amend, since both Supreme Court’s decisions clarified — rather than altered — Rule 8 pleading standard, which existed at the time of Plaintiffs’ filing of both the Original and Amended Complaints. In other words, the fact that Plaintiffs — at the time of drafting the Original Complaint — -were unaware of the yet-to-come Supreme Court clarifications in

Twombly ,

and — at the time of their drafting of the Amended Complaint — were not aware of the yet-to-come Supreme Court’s clarifications in

Iqbal ,

is of no import, since Plaintiffs were obligated to inventory the facts underlying their pleadings under the

Conley v. Gibson

regime, where they could just plead these facts with lesser specificity. And, if Plaintiffs had duly developed their facts, they should have had little trouble stating them with precision.

Accord Dura Pharms., Inc. v. Broudo,

544 U.S. 336 , 125 S.Ct. 1627 , 161 L.Ed.2d 577, 588-89 (2005) (“[The Court recognizes] that ordinary pleading rules are not meant to impose a great burden upon a plaintiff. But it should not prove burdensome for a plaintiff ... to provide a defendant with some indication of the [facts] that the plaintiff has in mind.... [Allowing a plaintiff to forego giving any indication of the [facts] that the plaintiff has in mind would ... permit a plaintiff with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an

in terrorem

increment of the settlement value, rather than a reasonably founded hope that the [discovery] process will reveal relevant evidence”) (citations omitted). In sum, the pleading requirements of Rule 8, as articulated in

Twombly

and

Iqbal ,

should not have caught Plaintiffs by surprise.

The same, however, cannot be said about this Court’s decision to subject Plaintiffs’ subject matter jurisdictional position to factual review under

Turicentro:

it can reasonably be assumed that Plaintiffs did not know about this development until the Clerk’s entry of the December Opinion and accompanying order three months prior to Plaintiffs’ filing of the Amended Complaint. Therefore, it is not unfathomable that the requirement to produce actual proof of their position — rather than to merely state their facts — caught Plaintiffs by surprise and found them unprepared and unable to rally their evidence within three months. With that in mind, the Court assesses Plaintiffs’ ability to cure the deficiencies of their factual

*382

proof in the event another leave to amend is granted.

Limited Leave to Amend Is in the Interests of Justice

The factual proof submitted by Plaintiffs with regard to the position that Defendants are exporters falling within the reach of the Sherman Act under subsection (1)(A) (requiring that the defendants’ conduct had a direct, substantial, and reasonably foreseeable effect on United States domestic trade) could be tallied up as follows: (a) six paragraphs in the Amended Complaint reiterated in the Opposition and making entirely factless assertions and inviting the Court to construe Plaintiffs’ conclusory self-serving statements as “factual proof’; and (b) six paragraphs in the Amended Complaint, reiterated or paraphrased in the Opposition, which refer to irrelevant or unverifiable documents, the content of which — even if deemed true — fails to provide any relevant factual proof establishing (or even strongly suggesting) that Defendants’ alleged collusive activities resulted in export that caused direct, substantial and reasonably foreseeable effect on United States domestic commerce within the meaning of clarifications provided in

Alcoa/Hartford Fire.

Thus, the statements made and documents submitted by Plaintiffs indicate that the jurisdictional requirement of subsection (1)(A) is neither met nor likely to be met, since Plaintiffs — even if granted leave to

*383

amend — are unlikely to improve on their already-almost-five-year-long efforts and, hence, would produce just another mix of self-serving conclusions, irrelevant tables and exponential layers of heavily technical language disguising the stark absence of facts and factual proof.

Hence, leave allowing Plaintiffs to amend their claims based on subsection (1)(A) appears futile.

See Career Educ. II,

2007 WL 1029092 , at *10, 2007 U.S. Dist. LEXIS 23635 , at *36 (leave to amend is not warranted where “plaintiffs have had ample opportunities to research and plead their claims,” but failed to produce sufficient pleadings). This conclusion seems to be particularly warranted in light of Plaintiffs’ statements that: (a) “[tjhis action seeks no damages or relief with respect to non-import foreign commerce,” Am. Compl. ¶ 1; and (b) “[t]he Amended Complaint alleges [only] import commerce, which [falls] outside the scope of the [FTAIA]” under the statute’s introductory language. Opp. at 10-11. Since these statements — regardless of Plaintiffs’ occasional use of the “direct, substantial and reasonably foreseeable” language of subsection (1)(A> — strongly indicate Plaintiffs’ lack of interest in pursuing claims under this subsection, the combination of such lack of interest and lack of factual support after almost five years of litigation signifies to this Court that another leave to amend would not be in the interests of justice. Therefore, Plaintiffs’ claims based on subsection (1)(A), that is, if such claims were actually intended to be raised, will be dismissed with prejudice.

However, the opposite conclusion appears warranted with regard to Plaintiffs’ claims based on the assertion that the FTAIA is wholly inapplicable to this matter because Defendants were importers that actually brought their price-fixed magnesium oxide into the United States.

True, virtually all documents and statements provided by Plaintiffs after almost five years of litigation strongly suggest that Defendants were nothing but worldwide exporters of magnesium oxide wholly indifferent to where their goods would be imported. However, the Court cannot ignore: (a) the potentially ambiguous printout that refers to “Order of Shipper”; and, especially (b) the highly suspicious agreement replicated in Plaintiffs’ Contract/Exhibit 3. In light of the content of the Contract/Exhibit 3, the Court finds that it would not be in the interests of justice to dismiss, with prejudice, Plaintiffs’ claims based on the exclusionary language of the FTAIA introductory clause. Consequently, leave to amend will be granted with regard to these claims, and — in recognition of the perhaps somewhat stricter standard Plaintiffs might have been facing since the issuance of the December Opinion informing them of the Court’s intentions to conduct factual rather than facial review— Plaintiffs will be allowed another ample opportunity to produce detailed and, hopefully, more abundant factual proof than the sole exhibit fortuitously provided to them by Defendants.

*384

Prudential Considerations

The Court’s conclusion that limited leave to amend and a grant of ample time to Plaintiffs to comply with that leave are warranted invites considerations related to the speed of administering justice. Specifically, in light of: (a) the fact that Defendants challenge the Court’s subject matter jurisdiction over this matter under the FSIA and, in addition, argue that a host of comity-sourced doctrines warrants abstention; and (b) the Court’s recognition that postponement of its decision as to these arguments until after Plaintiffs’ filing of their next amended complaint might result in undue waste of the parties’ and the Court’s time and resources since — if the matter is dismissed on the grounds of the FSIA or a comity-sourced doctrine — Plaintiffs’ efforts associated with re-pleading, the parties’ motion practice based on such re-pleading and the Court’s resolution of the same, would be rendered wholly academic and, hence, wasteful for all practical purposes.

The Court, indeed, is mindful of the general rule that abstention factors should be deemed relevant only if the court determines that subject matter jurisdiction exists in the first place,

see, Hartford Fire,

509 U.S. at 797 n. 24, 113 S.Ct. 2891 (citing

Mannington Mills, Inc. v. Congoleum Corp.,

595 F.2d 1287, 1298 (3d Cir.1979)), and, thus, a decision as to abstention grounds prior to resolution of the subject matter jurisdiction issue might yield a wasteful, if not facially premature, ruling. However, here, an exception to the general rule appears warranted since Defendants’ abstention grounds are closely intertwined with Defendants’ subject matter jurisdiction challenges under the FSIA, which means that the Court’s resolution of Defendants’ FSIA challenges: (a) has to come first; and (b) is likely to dispose of at least a substantial number of aspects associated with Defendants’ abstention grounds. Therefore, it appears prudentially unwise to address the FSIA challenges without addressing abstention. Rather, it appears in the interests of justice to not shelve either Defendants’ FSIAbased and/or their abstention challenges until after a ruling is entered as to the applicability of the FTAIA’s introductory language to Plaintiffs’ claims.

Cf. Pittsburgh Press Co. v. Preate,

797 F.Supp. 436, 440 (W.D.Pa.1992) (relying,

inter alia,

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 , 107 S.Ct. 1519 , 95 L.Ed.2d 1 (1987), in order to first conduct abstention analysis and then follow it with a determination as to the court’s subject matter jurisdiction).

Consequently, the remainder of this Opinion will examine Defendants’ abstention challenges, as well as those raised by Defendants under the FSIA with respect to the Court’s subject matter jurisdiction.

VII.

THE FSIA AND ABSTENTION ASPECTS

As noted

supra,

Defendants raise a cluster of affirmative defenses based on the FSIA

and interrelated abstention-caus

*385

ing tenets referred to by the courts as the “act of state doctrine,” “international comity” and “government compulsion” (which is also known as “sovereign” or “foreign” compulsion).

See

S/Mot. at 45-54 (listing and discussing these tenets as related but nonetheless wholly independent defenses); S/Reply at 7, 18, 20, 24 (same); M/Mot. at 23-36 (same); M/Reply at 11-17 (same);

accord

Opp. at 34-65.

Standard of Review

It has been argued that, for the purposes of the FSIA, the defendant has to establish a

prima facie

case of immunity, and only if the defendant succeeds at that, does the burden shift to the plaintiff to rebut the presumption.

See Alberti v. Empresa Nicaraguense De La Carne,

705 F.2d 250, 256 (7th Cir.1983) (relying on H.R.Rep. No. 1487, 94th Cong., 2d Sess. 17,

reprinted in,

U.S.C.C.A.N. 6604, 6616). Since the standard of review applied to the defendant’s

prima facie

showing has been typically construed as imposing the burden of producing factual proof rather than merely making factual allegations,

accord Matter of Sedco, Inc.,

543 F.Supp. 561 (S.D.Tex.1982);

de Sanchez v. Banco Central de Nicaragua,

515 F.Supp. 900 (E.D.La.1981);

Jet Line Services, Inc. v. M/V Marsa El Hariga,

462 F.Supp. 1165 (D.Md.1978), the Court concludes that Defendants are obligated to make a showing under the standard comparable to the factual review process, as

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