Loren Data Corporation v. GXS, Inc., No. 11-2062 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2062 LOREN DATA CORPORATION, Plaintiff - Appellant, v. GXS, INC., Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District Judge. (8:10-cv-03474-DKC) Argued: September 20, 2012 Decided: December 26, 2012 Before NIEMEYER and KEENAN, Circuit Judges, and Michael F. URBANSKI, United States District Judge for the Western District of Virginia, sitting by designation. Affirmed by unpublished opinion. Judge Urbanski wrote opinion, in which Judge Niemeyer and Judge Keenan joined. the ARGUED: Glenn B. Manishin, TROUTMAN SANDERS, LLP, Washington, D.C., for Appellant. Robert A. Schwinger, CHADBOURNE & PARKE, LLP, New York, New York, for Appellee. ON BRIEF: David H. Evans, CHADBOURNE & PARKE, LLP, Washington, D.C.; Benjamin D. Bleiberg, CHADBOURNE & PARKE, LLP, New York, New York, for Appellee. Unpublished opinions are not binding precedent in this circuit. URBANSKI, District Judge: Loren complaint Data against GXS, Corporation Inc. ( Loren ( GXS ) Data ) alleging filed a violations of Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2, the Maryland antitrust statute, as well as common law claims of tortious interference and breach of contract. The district court granted GXS s motion to dismiss Loren Data s antitrust claims. Because the district court correctly recognized that Loren Data failed to allege a plausible conspiracy in restraint of trade in violation of Section 1 of the Sherman Act or facts sufficient to state a plausible Section 2 claim, we affirm. I. Loren Data and GXS are engaged in the Electronic Data Interchange industry. Electronic Data Interchange ( EDI ) is the transfer and exchange of business data from one computer system to another using a standard digital format. EDI messages are generated, sent, and received by business computing systems for parties engaged in commercial trading, and often include the transmission of purchase orders. business information such as invoices and EDI messages travel over secure, private data networks called Value Added Networks ( Networks ). Loren Data operate such Networks. Both GXS and Loren Data alleges that the GXS Network is the market leader, and this case concerns GXS s 2 refusal to allow Loren Data to connect to the GXS Network in the manner sought by Loren Data. Networks referred to interconnect transfer in the ( peer business industry information as interconnect ) and a two ways, non-settlement a in peer commercial mailbox. When data is transmitted over a peer interconnect, each Network bears its own costs associated with the transfer of data, and neither Network charges the other for the data transmission. In contrast, Networks communicating via a commercial mailbox charge each other based on the volume of data transferred. Loren Data alleges that a peer interconnect is the industry standard and that a commercial expensive. mailbox is cumbersome, inefficient, and While Loren Data has had access to the GXS Network by means of a commercial mailbox, it charges a violation of the antitrust laws because GXS has refused to grant it a peer interconnect. Loren Data s efforts to from GXS span the last decade. obtain a peer interconnect The amended complaint alleges that Loren Data began negotiations with GXS to secure a peer interconnect in November 2000. While negotiations were underway, GXS made a commercial mailbox available to Loren Data as an interim solution. In August 2001, GXS declined Loren Data s request for a peer interconnect and notified Loren Data that it would terminate the commercial mailbox if $30,000.00 in 3 overdue fees owed by Loren Data were not paid. did not pay mailbox. the overdue fees, GXS terminated When Loren Data the commercial Loren Data approached GXS again in 2002 to establish a peer interconnect, but that request too was denied. In August 2003, Loren Data again approached GXS about a peer interconnect, this time because a potential customer, Covisint, required routing to commercial trading partners on the GXS Network. Although Loren Data had, by this time, settled its outstanding accounts with GXS, GXS declined to provide a peer interconnect, again offering a commercial mailbox. fact that Loren Data could only offer Covisint Despite the a commercial mailbox connection to the GXS Network, Covisint contracted with Loren Data. 1 Matters came to a head in 2010. In a letter dated September 3, 2010, GXS addressed the terms under which it was willing to do business with Loren Data. 1 This letter, attached While the commercial mailbox relationship between Loren Data and GXS has been the norm over the last decade, there have been exceptions. From 2005 to 2009, GXS allowed Loren Data a peer interconnect for traffic pursuant to an outsourcing contract between Loren Data and IBM. In 2009, Loren Data signed a transit agreement with Inovis, Inc. which gave Loren Data indirect access to the GXS Network through the InovisWorks Network. Loren Data alleges that GXS indicated that it would not renew or extend the InovisWorks transit agreement upon its expiration in May 2011. 4 as an exhibit to the amended complaint, forms the core of Loren Data s Sherman Act Section 1 conspiracy allegation. In the September 3, 2010 letter, GXS explained that it could not offer Loren Data anything more than a commercial mailbox because it believed Loren Data s business model to be incompatible with its own. GXS characterized business model as a service bureau. Loren Data s As a service bureau, GXS asserted that Loren Data was focused exclusively on selling a connection to the GXS Network and did not provide the value associated with other Networks, which GXS contended are focused on growing the overall EDI market. GXS interconnect problems. model also to expressed Loren Data concern would that result providing in service a peer quality GXS stated that the core of Loren Data s business involves message daisy chaining. GXS distinguished daisy chaining from the one-hop approach employed by GXS in which messages traverse one network and stop. In contrast, daisy chaining allows a message to hop from Network to Network. According to GXS, [a] proliferation of daisy chaining increases GXS[ s] risks in its ability to manage availability, and overall service quality. 2010 letter stated that GXS s current latency, The September 3, Network agreements expressly prohibit daisy chaining. 5 service interconnect The amended complaint alleges that both GXS and Loren Data have peer interconnect agreements with all of the 36 other EDI Networks. interconnect Regardless, access to the Loren Data alleges GXS Network is that peer essential to competition because that Network controls over 50 percent of the market. Although Loren Data alleges a concerted refusal to deal, the amended complaint states that [c]urrently about 55% of Loren Data s business travels on GXS [Networks]. II. Loren Data filed a complaint on December 13, 2010 alleging that GXS s refusal to provide it a peer interconnect to the GXS Network violated Sections 1 and 2 of the Sherman Act, the Maryland antitrust statute, and the common law. GXS moved to of dismiss the complaint Procedure 12(b)(6). pursuant to Federal Rule Civil In response to GXS s motion to dismiss, Loren Data filed an amended complaint, which incorporated the original complaint, introduced supplemental facts, and attached the September 3, 2010 letter, which it believed evidenced the agreement to restrain trade. On August 9, 2011, the district court dismissed the action. The district court reasoned that Loren Data failed to allege specific facts in support of a Section 1 conspiracy, and, in fact, the facts alleged suggest the absence of an agreement 6 in restraint of trade. As to the Section 2 monopolization claim, the district court held that Loren Data did not properly allege a alleged plausible refusal conduct. The essential to deal district facilities constituted court also claim or unlawful held that the exclusionary that Loren Data s attempted monopolization claim did not sufficiently allege the specific intent to monopolize or a dangerous probability of successful monopolization. Loren Data filed two post-judgment motions that the district court construed as motions to alter judgment pursuant to Federal Rule of Civil Procedure 59(e). Loren Data sought clarification as to In those motions, whether the case was dismissed with or without prejudice and reconsideration of the dismissal. The court denied the motions and ordered that the case be dismissed with prejudice. This appeal followed. 2 III. An order reviewed de novo. granting dismissal under Rule 12(b)(6) is See E.I. du Pont de Nemours & Co. v. Kolon 2 Loren Data did not appeal the district court s rulings as to its Maryland common law claims and those portions of its Maryland antitrust claims that do not parallel its Sherman Act claims. As such, these claims are not addressed herein. Likewise, there is no need to undertake separate analysis of the parallel Maryland antitrust claims, as resolution of those claims is subsumed in the Sherman Act analysis. 7 Indus., 637 F.3d 435, 440 (4th Cir. 2011). The Supreme Court in U.S. Bell Atlantic Corp. v. Twombly, 550 544 (2007), articulated a two-pronged approach to assessing the sufficiency Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). of a complaint. First, the complaint must allege facts sufficient to support the legal conclusions in the complaint, as Federal Rule of Civil Procedure 8 requires more than labels and conclusions, and admonishes against a formulaic recitation of the elements of a Twombly, 550 U.S. at 555. cause. Second, [t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its Iqbal, face. (quoting Twombly, 550 U.S. at 557). 556 U.S. at 678 Plausibility requires that the factual allegations be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555; see, e.g., Robertson v. Sea Pines Real Estate Companies, Inc., 679 F.3d 278, 288 (4th Cir. 2012). In trade, the Twombly context teaches that of an a court conclusory allegations of conspiracy. the court conclusory must factual determine whether allegations suggestion of conspiracy. give agreement may not restrain simply 550 U.S. at 555. the credit Rather, well-pleaded, rise Id. at 565-66. 8 to to a non- plausible As the district court correctly concluded, the factual allegations in this case fail to reach that level. IV. A. Count I of Loren Data's amended complaint alleges a violation of Section 1 of the Sherman Act. Section 1 of the Sherman Act states that: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal. Section 1 violation, a 15 U.S.C. § 1. plaintiff must To establish a prove, and therefore plead, (1) a contract, combination, or conspiracy; (2) that imposed an unreasonable restraint of Dickson trade. v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002). Not every instance of cooperation between two people is a potential contract, combination . . . or conspiracy, in restraint League, of 130 trade. S. Ct. 2201, Am. Needle, 2208 Inc. (2010). v. The Nat l term Football contract, combination . . . or conspiracy in Section 1 applies only to concerted action, and not unilateral activity. Id. (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 761 (1984)). The Sherman Act proscribes concerted action because it is fraught with anticompetitive risk and deprives 9 the marketplace of the independent centers of decision-making that competition assumes and demands. Robertson, 679 F.3d at 284 The (internal citations omitted). purpose of the distinction between concerted and independent action [is] to deter anticompetitive conduct and compensate its victims, without chilling vigorous competition through ordinary business Id. operations. More particularly, concerted activity is prohibited by Section 1 when multiple parties join their resources, rights, and economic power together in order to achieve an outcome that, but for concert, would naturally be frustrated by competing interests (by way of profit maximizing choices). their Va. Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277, 282 (4th Cir. 2002). Thus, Section 1 does not include the entire body of private contract, and a business generally has the right to deal or not deal with whomever it likes, as long Laurel Sand & Gravel, Inc. v. CSX as it does so independently. Transp., Inc., 924 F.2d 539, 542 (4th Cir. 1991). To adequately plead a Section 1 conspiracy, the complaint must allege a factual basis plausibly suggesting that concerted trade. activity See Twombly, led 550 to an U.S. at agreement 556. to restrain Specifically, when concerted conduct is a matter of inference, a plaintiff must include evidence that places the parallel conduct in context 10 that raises a suggestion of a preceding agreement as distinct from identical, independent action. Id. at 549, 556; see also Robertson, 679 F.3d at 289. Conspiracies effort to escape circumstantial place. evidence of in often detection, evidence Robertson, allegations are this to 679 case conspiracy. tacit thus that at an of Loren in an resort to agreement 289-90. suggestive Rather, unwritten necessitating suggest F.3d or There such Data are took no circumstantial relies on the reference in the September 3, 2010 letter to the prohibition on daisy chaining in the GXS Network interconnect agreements to meet Section 1 s concerted action requirement. the daisy chaining ban contained in the Loren Data reads GXS interconnect agreements as evidence of collusion between GXS and each of the other 36 Networks to boycott Loren Data. Merely pleading or pointing to an express contract is not enough to show that an actual conspiracy to restrain trade is afoot, however. A reviewing court must take account of the absence of a plausible motive to enter into the alleged . . . conspiracy. Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 595 (1986). [C]ourts should not permit factfinders to infer conspiracies when such inferences are implausible, because the effect of such practices is often to deter procompetitive conduct. 11 Id. at 593 (citing Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 762-64 (1984). If the alleged co-conspirators had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy. Matsushita, 475 U.S. at 596-97 (citing First Nat l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 278-80 (1968). possibility that The the evidence must alleged tend to exclude co-conspirators the acted independently, and the alleged conspiracy must make practical, economic sense. Matsushita, 475 U.S. at 597-98 (citing Monsanto, 465 U.S. at 764). Here, the allegations do not meet this standard. The September 3, 2010 letter does not provide any indication that other Networks have acquiesced or joined in any kind of conspiracy to boycott Loren Data, much less taken any action against Loren Data. The letter merely suggests that GXS was unwilling to contract with Loren Data on the terms it sought and provides no evidence that others agreed to boycott Loren Data. Indeed, it is difficult, if not impossible, to reconcile Loren Data s allegation that the September 3, 2010 letter is direct evidence of a conspiracy against Loren examination of the terms of that letter. entirety, the business model letter raises explains that service Loren quality 12 Data with a full When read in its Data s concerns daisy for chain the GXS Network. To address the service quality problems posed by daisy chaining, GXS proposed a new commercial relationship with Loren Data. As such, the September 3, 2010 letter is hardly suggestive of an unlawful conspiracy or an agreement to boycott Loren Data. Rather, it simply explains the terms on which GXS was willing to contract with Loren Data. Moreover, as the district court recognized, the facts alleged by Loren Data contradict any inference of conspiracy. Loren Data simultaneously alleges: (1) that GXS contracted with all other Networks to exclude Loren Data from obtaining a peer interconnect with GXS; yet (2) Loren Data was able to obtain peer interconnects Networks. with all of these allegedly boycotting The fact that Loren Data was able to interconnect with all of these other Networks negates any suggestion that these Networks conspired with GXS to boycott Loren Data. These facts do not support an allegation of a Section 1 conspiracy; rather, they are consistent with unilateral conduct by GXS to protect its Network from the service quality perils it perceived to be associated with daisy chaining. Given the fact that Loren Data was able to interconnect freely with so many other Networks, the letter of September 3, 2010 concerted action. cannot plausibly be read as evidence of Rather, it reflects GXS s unilateral business judgment as to the parameters under which it was willing to deal 13 with Loren Data, an entity it viewed as having an incompatible business model. Monsanto, 465 U.S. at 761 ( A manufacturer of course generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently . . . . And a distributor is free to acquiesce in the manufacturer's demand in alleged order in the to avoid amended termination. ). complaint, the Given conspiracy the facts posited Loren Data simply makes no practical or economic sense. by As such, the district court correctly concluded that the Sherman Act Section 1 claim fails as a matter of law. V. Counts II and III of Loren Data s amended complaint allege violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, which monopolize, make or it illegal combine or to monopolize, conspire with any or other attempt to person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations. Loren Data challenges the district court s decision to dismiss both its monopolization and attempted monopolization claims. A. To state a monopolization claim under Section 2, two elements must be demonstrated: (1) the possession of monopoly 14 power in the relevant market 3 and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. 384 U.S. Offices 563, 570-571 of Curtis ( Trinko ). The V. United States v. Grinnell Corp., (1966); Trinko, Supreme Verizon LLP, Court 540 in Commc ns U.S. Trinko Inc. 398, 407 noted v. Law (2004) that the possession of monopoly power is only unlawful when it is coupled with anticompetitive conduct. 540 U.S. at 407. To violate Section 2 of the Sherman Act, a defendant must engage in conduct to foreclose competition, gain a competitive advantage, or to destroy a competitor. E.I. DuPont de Nemours, 637 F.3d at 450 (citing Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482-83 (1992)). The 3 anticompetitive conduct Monopoly power is defined as the power to control prices or exclude competition. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391 (1956). Proof of a relevant market is the threshold for a Sherman Act § 2 claim. The plaintiff must establish the geographic and product market that was monopolized. Consul, Ltd. v. Transco Energy Co., 805 F.2d 490, 493 (4th Cir. 1986). The district court questioned whether Loren Data s inconclusive statements as to geographic market are adequate to state a claim, Loren Data Corp. v. GXS, Inc., No. DKC 10-3474, 2011 WL 3511003, at *6 (D. Md. Aug. 9, 2011), but noted that it need not reach that issue because Loren Data s claim has other failings. Id. at *7. As to the relevant product market alleged by Loren Data, the EDI industry, the district court concluded that it cannot be said that Loren Data has failed to plead a relevant product market in terms sufficient to state a claim. Id. 15 requirement reflects the essence of an antitrust violation, that of harm to competitor. Commc ns, competition, rather than to an individual Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Inc., 376 F.3d 1065, 1075 (11th Cir. 2004). The Supreme Court has explained that [e]ven an act of pure malice by one business competitor against another does not, without Brooke more, state a claim under the federal antitrust laws. Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225 (1993). is The [Act] directs itself not against conduct which competitive, even severely so, but against unfairly tends to destroy competition itself. Inc. v. McQuillan, 506 U.S. 447, 458 (1993). conduct Spectrum Sports That is, it must harm the competitive process and thereby harm consumers. to one or more which competitors will In contrast, harm not suffice. United States v. Microsoft Corp., 253 F.3d 34, 70-71 (D.C. Cir. 2001) (en banc) (emphasis in original). Loren Data alleges that GXS s anticompetitive behavior is evidenced by its refusal to provide it a peer interconnect and this refusal is a denial of access to an essential facility. i. The Sherman Act does not restrict the long recognized right of private [a] trader business, or freely manufacturer to engaged exercise 16 his in own an entirely independent discretion as to parties with whom he will deal. United States v. Nevertheless, Colgate & Co., 250 U.S. 300, 307 (1919). [t]he high value that we have placed on the right to refuse to deal with other unqualified. firms does not mean that the right is Trinko, 540 U.S. at 408 (citing Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601 (1985)). In Trinko, the Court observed that exceptions to the right to refuse to deal should be recognized with caution due to the uncertain virtue of forced sharing and the difficulty of indentifying and remedying anticompetitive conduct by a single Id. firm. Specifically, the Court noted that Aspen Skiing represented an exception to this rule and is situated at or near the outer boundary of § 2 liability. Id. The Aspen Skiing exception applies when [t]he unilateral termination of a voluntary (and thus presumably profitable) course of dealing suggested a willingness to forsake short-term profits to achieve an anticompetitive end. Id. Loren Data s attempt to analogize this case to Aspen Skiing is unpersuasive. Data. GXS has not refused to deal with Loren Indeed, in the September 3, 2010 letter, GXS proposed terms for a commercial relationship with Loren Data. There is no suggestion, and the amended complaint does not allege, that this offer of a new commercial agreement was some sort of sham 17 or that GXS would renege on its proposal; rather, Loren Data was not satisfied with its terms. Loren Data counters that a commercial mailbox arrangement is not a viable alternative to a peer interconnect. But simply because GXS does not offer Loren Data the terms and conditions it desires does not mean that GXS has violated the antitrust laws. Indeed, GXS provides legitimate justifications for the terms it offers Loren Data. Sand & Gravel, 924 F.2d at 544 (noting that business Cf. Laurel anticompetitive exclusionary conduct may be shown if there was no legitimate business reason for its conduct. ). its September 3, 2010 letter, Plainly, as GXS explains in there are ample business justifications for its decision not to deal with Loren Data on the terms Loren Data wants. Nor does the alleged failure of GXS to contract with Loren Data on those terms work to deprive the market of vigorous competition. Network, large GXS granted peer or small, and interconnects the district to every court other correctly concluded that GXS is not likely to gain monopoly control over the industry if it refuses to deal with only one of 36 available VAN networks. Loren Data Corp., 2011 WL 3511003, at *11. Not only does GXS interconnect with the 36 other Networks, Loren Data was able to do so as well. was not able to obtain a Further, even though Loren Data peer 18 interconnect with GXS, its allegations traveled acknowledge on the GXS that more than Network. half Simply of put, its Loren business Data s allegations that it is able to access 36 other Networks and that more than half of its business traversed the GXS Network negates any plausible inference of anticompetitive exclusionary conduct by GXS. Loren Data argues that smaller EDI consumers are harmed by GXS s exclusionary conduct because accessing the GXS Network through another Network is more expensive. But Loren Data offers no facts to support its conclusory assertion that smaller EDI consumers have been denied access or are otherwise unable to obtain EDI services because of cost. In short, Loren Data has failed of to allege a plausible claim exclusionary conduct directed to competition as a whole. ii. Loren Data also alleges that the GXS Network is an essential facility, Section 2. the denial of access to which violates The Supreme Court has not adopted the essential facilities doctrine. Trinko, 540 U.S. at 411 ( We have never recognized such a doctrine . . . and we find no need either to recognize it or repudiate it here. ). Nevertheless, considered such a claim in Laurel Sand & Gravel. 544. 19 we 924 F.2d at Under such a theory, a refusal by a monopolist to deal may be unlawful because a monopolist s control of an essential facility (sometimes called a bottleneck ) can extend monopoly power from one stage of production to another, and from one market into another. Thus, the antitrust laws have imposed on firms controlling an essential facility the obligation to make the facility available on non-discriminatory MCI terms. Commc ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1132 (7th Cir.), cert. denied, 464 U.S. 891 (1983). [T]he central concern in an essential facilities claim is whether market power in one market is being used to create or further a monopoly in Advanced Health-Care Servs., Inc. v. Radford another market. Cmty. Hosp., 910 F.2d 139, 150 (4th Cir. 1990). In order to proceed on an essential facilities claim, four elements must be proven: (1) control by the monopolist of the essential seeking access facility; to (2) the practically inability or of the reasonably competitor duplicate the facility; (3) the denial of the facility to the competitor; and (4) the facility. feasibility of the monopolist to provide the Laurel Sand & Gravel, 924 F.2d at 544 (citing MCI Commc ns Corp., 708 F.2d at 1132). The owner of an essential facility is not obligated to make it available under whatever terms the competitor wishes; the owner need only offer access under reasonable terms. Id. 20 Moreover, terms are not unreasonable profits. simply because they will reduce a competitor's Id. The amended complaint does that GXS is an essential facility. plausibly essential. maintain that Although a peer Loren not sufficiently allege First, Loren Data cannot interconnect Data complains with that GXS GXS is has repeatedly denied it a peer interconnect, it alleges that more than half of its EDI business travels over the GXS Network. Moreover, Loren Data has established peer interconnects with three dozen other Networks. The fact that the majority of Loren Data s the business traversed GXS Network without a peer interconnect demonstrates the fallacy of the claim that a peer interconnect is essential to competition. Second, there is no indication that the new commercial agreement offered to Loren Data by GXS in the September 3, 2010 letter is an unreasonable alternative to the terms Loren Data seeks. Loren Data s history with Covisint further illustrates this point. Covisint required Loren Data to have access to the GXS Network as part of its prospective contract agreement. Even though Loren Data was able to connect to the GXS Network only through a commercial mailbox, Covisint still decided to contract with Loren Data. While a peer interconnect with GXS may suit Loren Data better, it is plainly not essential. 21 At its core, Loren Data s amended complaint does not plausibly allege the denial of access to an essential facility. Loren Data has functioned for a decade without unfettered peer interconnect essential. access to the GXS Network it now claims is Even were access to the GXS Network essential for Loren Data to compete, GXS offered Loren Data access to its Network on terms acceptable to GXS as set forth in the September 3, 2010 letter. For both of these reasons, this case does not present a plausible essential facilities claim. B. Loren Data also argues that the district court erred in dismissing its attempted monopolization claim. claim for attempted monopolization, a To state a plaintiff must demonstrate: (1) a specific intent to monopolize the relevant market; (2) predatory or anticompetitive acts in furtherance of the intent; success. and (3) a dangerous probability Spectrum Sports, Inc., 506 U.S. at 456. of The district court held that Loren Data failed to allege facts demonstrating a specific intent to monopolize or a dangerous probability that GXS would succeed in establishing a monopoly. We agree. Loren Data has not sufficiently alleged that GXS had a specific intent to monopolize. Indeed, Loren Data alleges just the opposite - that GXS grants peer interconnects to every other 22 Network, both large and small which is entirely inconsistent with an intent to monopolize. dangerous probability of Nor does Loren Data allege a successful monopolization by GXS. Loren Data characterizes two acquisitions by GXS over a ten year period as an aggressive campaign to monopolize. Loren Data cites M & M Medical Supplies & Service, Inc. v. Pleasant Valley Hospital, Inc., 981 F.2d 160, 168 (4th Cir. 1992), for the proposition that a rising market share is sufficient to show a dangerous in M & probability M Medical, of we achieving held monopoly that [o]ther power. factors However, must be considered, such as ease of entry, which heralds slight chance of success [of achieving monopoly power], or exclusionary conduct without the justification of efficiency, which enhances the likelihood of success [of achieving monopoly power]. Id. Loren Data s complaint and amended complaint are devoid of any factual allegation suggesting that GXS s rising market share was coupled with any exclusionary conduct. Data s theory is its allegation that Inconsistent with Loren GXS established peer interconnects with 36 other Networks, conduct which is hardly suggestive of an attempt to monopolize the EDI market. In sum, the fact that GXS has contracted with every other Network in the market suggests that its refusal to deal with Loren Data on the terms Loren Data desires will not have any negative effects on competition as a whole. 23 VI. Finally, Loren Data argues that the erred in denying its post-judgment motions. district court Loren Data filed a motion for clarification asking the district court to issue a revised or supplemental order stating whether its claims were dismissed with or without prejudice. Before this motion was ruled on, Loren Data filed another motion asking the district court to reconsider its order granting GXS s motion to dismiss. The district court construed both of these motions as motions to alter judgment pursuant to Federal Rule of Civil Procedure 59(e). The reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly. Pac. Ins. Co. v. Am. Nat l Ins. Co., 148 F.3d 396 (4th Cir. 1998). We review the denial of a Rule 59(e) deferential abuse of discretion standard. motion under the Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006). Rule 59(e) provides that a court may alter or amend the judgment if the movant shows (1) an intervening change in the controlling law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law or a manifest injustice. Id.; see e.g., Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403 (4th Cir. 2010). It is the moving party s burden 24 to establish one of these three grounds in order to obtain relief under Rule 59(e). The district court did not abuse its discretion in denying Loren Data s motions. As there was no suggestion of a change in intervening law or new facts, Loren Data was left to argue that a clear error of law or manifest injustice occurred. As the foregoing analysis of Loren Data s claims makes plain, the dismissal of Loren Data s antitrust claims was neither. Nor was it a clear error of law for the district court to dismiss the case without first making a specific finding that an additional opportunity to amend the complaint would be futile. In ruling on the post-judgment motions, the district court made it abundantly clear that any amendment to the complaint would be futile for two reasons. the complaint would be once futile. First, Loren Data had already amended before, Second, suggesting Loren that Data further provided amendment nothing of additional substance to the district court to demonstrate that a dismissal without prejudice would be fruitful. Plainly, the district court did not abuse its discretion in denying Loren Data s post-judgment motions. 25 VII. For these reasons, the judgment of the district court is affirmed. AFFIRMED 26

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