UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________ ) COMP ANHIA BRASILEIRA ) CARBURETO DE CALCIO - CBCC, ) ) P laintif f, )

) v. ) Civil Action No. 01-646 (RMC) ) ) (Consolidated w ith AP P LIED INDUSTRIAL ) Civil Action No. 01-2678 (RMC) ) MATERIALS CORP ., et al ., ) ) Defendan ts. ) ____________________________________)

MEMORAN DUM OP INION I n approx imately 1989, various U.S. produce rs of fer rosilicon, a materia l used in making steel, enter ed into an illega l price fix ing arr an g ement for domestic sales. Some of these produce rs then petitioned the I nterna tional T rade Commi ssion (“I TC”) to impose import tariff s on fore ign fer

rosilicon fo r a ll eg ed unfair “dumping ” of those products at low price s in the United States. The I TC w as persua ded, and the De partment of Commerc e imposed duties on fore ign fer rosilicon in 1993 and 1994, causing Plaintiffs, Br azilian fer rosilicon produce rs, to withdraw from the U.S. marke t. I n 2001, Plaintiffs broug ht these consolidated case s char g ing that the I TC petition was full of inac cura cies, misrepr esenta tions, a nd outrig ht f

raudule nt sta tements and seeking damag es fr om U.S. ferr osilicon producer s and two of their fore ign pa

rent c ompanies. These case s have lang uished for y ear s, awa iting final action on Plaintiffs’ eff orts to
g et the I TC to lift the import tariff s. The I TC lifted the import tariff s in Aug ust 1999, an d after a g reat deal of additional litigation, that decision wa s af fi rm ed by the Court of I nterna tional Trade(“CI T”) and t he Feder al Circuit. See Elkem Metals Co. v. United States , No. 99-00627, 2008 WL

4097463 (CI T Sept. 5, 2008) (af firming the I TC’s fourth rema nd deter mination), aff’d without op. , No. 2009-1007, 2009 WL 1285 8 3 7 (Fed. Cir. May 11, 2009). Now that this Court can ag ain
proce ed, Def

endants have re- filed motions to dismiss , challeng ing the Court’s persona l jurisdiction 1 over the m. The Court will gr ant the motions. 2
I. F ACTS These lawsuits alleg e a price fix ing conspirac y and an antidumping conspirac y in the fer rosilicon industry

dating back to 1989. The price fix ing c onspiracy was the subjec t of criminal
prosec utions and treble damag es actions that terminated over a deca de ag o. Plaintiffs are three
Br azilian produce rs of fer rosilicon: Companhia Br asileira Carbure to de Calcio – CBCC (“CB CC”); Companhia Perrolig as Minas Ger ais – Minasliga s; and Cia. De Fe rrolig as Da Ba hia – Fe rbasa

. 3
T h ey filed two identical complaints alleg ing that the Def endants conspired to file antidum p i n g 4

Shortly afte r these c ases were filed, Defenda nts filed m otions to dismiss

. J udg e Thomas 1 Penfield J ackson, the presiding judge at that time, denied the motions without preju d i ce whi le waiting for final action by the I TC. J udg e J ackson has since retire d from the bench, and these case s wer e tra nsfer red to the unde rsig ned. Def endants also asser

t that Plaintiffs’ lack standing to proce ed and that the case s should be 2 dismiss ed under the rele vant statutes of limit ations. See 15 U.S.C. § 15b (imposing a 4 y ear statute of limit ations on RI CO and Sherman Act claims). Be cause t h e C o u rt finds it lacks persona l jurisdiction over De fenda nts, it does not reac h these issues. Ri m a I n dustrial S/A was also a plaintiff but it voluntarily dismiss ed its claim without 3 prejudice on November 30, 2009, see Not. of Voluntary Dismissal [ Dk t

. # 8 5 ] , and thus it is no longe r a pa

rty to this sui t. See Minute Order filed De c. 2, 2009 (a

pproving dismiss al). CBCC filed its Complaint, Civil Action No. 01-646, on Marc h 26, 2 0 0 1

. The other 4 Plaintiffs filed a s u b s t antively identical Complaint, Civil Action No. 01-2678, on Dec ember 28, 2001. The Court consolidated the case s for all purposes. See Orde r [Dkt. # 44]. The complaints are identical, except f

or the naming of differ ent plaintiffs, and beca use the second complaint names three plaintiffs and not just one, the para g raphs are numbere d differ ently

. For ease of ref ere nce, citations -2-petitions with the I TC “to preve nt fore ign produce rs from underc utting the conspirator ially induced

high dome stic prices f

or fe rrosilicon.” Compl. [Dkt. # 1] ¶ 18. De fenda nts include: (1) Applied I ndustrial Materia ls Corporat io n , a D e la war e corpor ation with its principal place of business in Pitt sburg h, P en n sy lvania (“A I MCOR”); (2 ) E lkem Metals Company , I nc. , a New York partne rship with it s 5 principal place of business in Pitt sburg h, Pennsy lvania (“El kem Metals”) ; (3) E l k em A/S, a Norwe g ian corpor ation with its principal place of business in Oslo, Norway , and par ent of Elkem Me tals; (4) Globe Metallurg ical, I n c. , a Delaw are corpor ation with its principal plac e of business in B ever ly , Ohio (“G lobe”) ; (5) CC Met als and Alloy s, I nc. (formerly known as SKW Metals & Alloy s, I nc. (“SKW”)) , a Delaw are corpor ati on with its principal place of business in Amherst, Ne w York ( “CC Metals”); (6) SKW Trostberg AG, a Ger man corpor ation with its principal place of business in Trostberg , Ger many , and former pare nt of SKW (“Tr ostberg ”); and

6 (7) The Fe rr o alloy s Association, a trade association of fer rosilicon produce rs locate d in Washington, D.C. (“TF A”)

. The Complaint alleg es that the Def endants defr auded the I TC, and as a result of the conspi rac y , the Depa

rtment of Commerce imposed antidumping duties that harme d Plaintiffs. Plaintiffs alleg e that Def

endants have violated section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1

to the Complaint in this Opinion are to the Complaint [Dkt. # 1] in Civil Action No. 01-646. Note that Def endants filed i d entical motions to dismiss in Civil Action Nos. 01-646 and 01-2678. For ease of re fer ence , this Opinion cites only the docke t numbers in Civil Action No. 01-646. Elkem Metals, I nc., is the succ essor of E lkem Metals Company , I nc. 5 Evonik Deg ussa GmbH is the succe ssor to SKW Trostberg AG. To lessen confusion, the 6 Court will refer

to it as “Trostber g .” -3-(Count 1) and the Racke teer I nfluenc ed and Corrupt Org anization s Act (“RI CO”), 18 U.S.C.

§ 1962(c) & ( d) (Counts I Iand I I I ). 7

AI MCOR, Globe, and three unions repr esenting Elkem and SKW employ ees filed

an antidumping petition with the I TC on J anuar y 12 , 1 9 9 3 , reg arding fer rosilicon imports from
Br azil. Compl. ¶¶ 19-20; see also id

. ¶ 20 (“A lthough SKW and Elkem did not join in the petition, they [ ] participa ted in the decision to file, helped to defr ay the costs, including leg al repr esenta tion fee s, and induced, or consente d to, their unions joining in the p etition.”). Def endants alleg edly coordina ted their f

a ls e a n d mi s le a d in g response s to I TC questionnaires and their false and misleading testimony befor e the I TC. Id . ¶¶ 22- 23; see also id

. ¶ 38 (“I n fac t, the I TC specific ally ref err ed to Wil liam Be ard, President of Americ an Alloy s, Arde n S i m s , P re s i dent of Globe, Charles Kopec , President of AI M C OR , an d Charles Zak, Senior Vice President of S KW, as ex amples of industry individuals who provided inacc urate and misleading information to the I TC.”) 8

T h e essenc e of the false statements made by Def endants to the I TC was t h at t h e domestic marke t for fer

rosilicon was competitive and price sensitive and that imports of fer rosilicon

wer e being dumped in the United States marke t a nd sold at unf

airly low price s. Id

. ¶ 23. The I TC relied on Def

endants’ fra

udulent misrepre sentations an d deter mined in 1993 that the domestic fer rosilicon industry was materia lly injured by rea son of dumped fer

rosilicon imports f

rom China,

Plaintiffs also orig inally claimed, based on the same alleg ed conduct, that Def endants wer e 7 liable for fra

ud (Count I V), abuse of proce ss (Count V), and mal i ci o u s prosec ution (Count VI ). Howeve r, Plaintiffs now withdraw Counts I V, V, and VI

. See Pls.’ Opp’n to Domestic Def s.’ Mot. to Dismiss [Dkt. # 86] at 7 n.4. Plaintiffs alleg e that AI MCOR, Elkem M et al s , Globe, and SKW provided false 8 questionnaires to the I TC, see, e. g
. , C o mpl. ¶¶ 55f, 55g , 55i, 55m; Plaintiffs do not alleg e who specific ally

provided a

ny other testimony

to the I TC. -4-Kazakhstan, Ukr aine, Russia, and V enezuela; B razil was adde d to the list i n 1994. Id . ¶ 24.
I n the meantime, in 1993, the Antitrust Division of the Depa rtment of J ustice beg an

an investigation of the domestic silicon products i ndustry for alleg ed price fix ing. Id

. ¶ 26. That investigation ultimately resulted in a September 22, 1995 g uilty plea by Elkem Metals. Id

. ¶ 27. 9
On Marc h 17, 1997, SKW (now k n own as CC Metals, a Def endant here ) and its senior vice president, Charles Z ak, wer e convicted of conspirac y to fix the price s of fe rrosilicon in the United S tates from late 1989 until mid-1991. Id

. Globe and its president, Arde n Sims , we re n am ed as unindicted co-c onspirators. Id

. The other Def endants — AI MCOR, Elkem A/S, and Trostberg —

wer e never char g ed with any illega l activity nor named as unindicted co-c onspir at o rs i n t he price fix ing c onspiracy

. 1 0

On April 24, 1998, Plaintiffs reque sted that the I TC revie w i ts 1993 finding on the antidumping petition in favor of U.S. produce rs of fer rosilicon. Id. ¶ 28. The I TC published a notice in the Feder al R eg ister requesting comments on whether it should review it s prior determination. Id. ¶ 29. After revie wing the comments, on J uly 28, 1998, the I TC announce d that the price fix ing convictions and g uilty pleas wer e a sufficie nt basis to war rant revie w of its investigation. Id. ¶ 30.
I n Aug ust 1999, the I TC reve rsed its orig inal decision and found that U.S. produce rs of fer rosilicon

wer e not mater ially

injured by imports. Id. ¶ 37. This dec ision was appea led and, a fter nume rous appea ls and rema

nds, the CI T sustained the I TC’s decision, and t h e Fe d era l Circuit summarily

Americ an Alloy s, I nc. also pled guilty , but it filed a petition for bankr uptcy protec tion in 9 J anuar y 2000, and Plaintiffs did not name it as a de fenda nt in these ca ses. At times, Plaintiffs confla te the price fix ing conspirac y with the antidumping conspirac y . 1 0 The inj ury alleg ed in these cases arose fr om the I TC’s imposit ion of an antidumping tariff. Thus, alleg ations reg arding the g uilty pleas a nd convictions for pr ice f ix ing a re not direc tly rele vant and only provide ba ckg round her e. -5-aff

irmed the CI T. See Elkem Metals , 2008 WL 4097463, aff’d without op ., 2009 WL 1285837. As the I TC proce eding s and rela ted appea ls have now conclude d, proce eding s in this Court have r esumed. The Def endants now r enew

their motions to dis miss. II. ST ANDAR

D OF REVIEW On a motion to dismiss pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 2), th e plain t i ff bear s the burden of establishing a fac tual basis for the court' s exercise of persona l jurisdiction over the defe ndant. Crane v. N.Y

. Zoological Soc’y , 894 F.2d 454, 456 (D.C. Cir. 1990). The plaintiff must alleg e specific acts connec ting the defe ndant with the forum. Second Amendm ent Found. v. U.S. Conference of Mayors , 274 F.3d 521, 524 (D.C. Cir. 2001). Ba re all ega t ions and conclusory

statements ar e insuffic ient. Id.
I n deter mining whether a fac tual basis for perso n al jurisdiction exis ts, the court should resolve fac tual discrepan ci es appea ring in the rec ord in favor of the plaintiff. Crane , 894 F.2d at 456. Howeve r, the court need not trea t all of the plaintiff’s alleg ations as true. United States

v. Philip Morris Inc. , 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000). I nstead, the court “may rec eive and weig h aff

idavits and any other rele vant matter to assist it in deter mining the jurisdictional fac ts.” Id. III. ANALYSIS

A plaintiff has the burden of establishing t h e court’s persona l jurisdiction over d ef en dants. FC Inv. Group LC v. IFX Marke ts, Ltd. , 529 F.3d 1087, 1091 (D.C. C ir. 2008). T h e question of whether any of the Def endants is subject to persona l jurisdiction in this District must be deter mined on the basis of t heir c ontacts with the for um at the time these c onsolidated case s wer e

commence d; post-complaint contac ts are not considere d. See Keene Corp. v. Un it e d States , 508 U.S.

-6-200, 207 (1993); Allen v. Russian Fed’ n , 522 F. Supp. 2d 167, 193-94 (D .D.C. 2007). A. Lack of General P ersonal Jurisdiction Courts i n t he District of Columbi a apply D.C. Code § 13-334(a ) to confe r g ener al jurisdiction only “over fore ign corpor ations doing substantial business in the District of Columbi a.” Gonzalez v. Internacional de Elevadore s S.A. , 891 A.2d 2 2 7 , 2 3 3 (D.C. 2006). The Complaint alleg es that the defe ndants reside or do business in this District, are licensed to do business here , or have ag ents or maintain office s here

. Compl. ¶ 3. These alleg ations are not borne out by the fac ts. Only the trade association, TFA , did b u s iness in the District of Columbi a; due to its bankruptc y , howeve r, Plaintiffs no longe r pursue their claims ag ainst it. See Pls.’ Opp’n at 17 n.8. Thus, TFA 1 1 will be dismiss ed as a

Def endant he re. All other De fenda

nts assert that they

do no business in the District of Columbia — they are not inc orporated here , this is not the ir principal place of business, they do not ha ve ag ents here , and they are not licensed here

. AI MCOR is a resident of Delaw are and Pennsy lvania; Elkem Metals i s a resident of New York and Pennsy lvania; Elkem A/S is a resident of Norway ; Globe is

a resident of Delaw are and Ohio; CC Metals is a resident of Delaw are and New York; and Trostberg is a reside nt of Ger

many . Despite the Complaint allegations, P laintiffs do not contest these f acts. Thus, the Court cannot e x erc ise g ener al per sonal jurisdiction over De fenda nts. B. Sp ecific Jurisdiction an d the Gove rnm ent Contact s Doctr ine Plaintiffs argue instead that specific jurisdiction applies under t h e D. C. long- arm
statute. The long- arm statute extends pe rsonal jurisdiction to persons “tra nsacting any business in

TFA was liquidated pursuant to a Chapter 7 bankruptc y proces s an d all of its pre- 1 1 bankruptc y

debts wer e discha

rg ed. See Sugg estion of B ankruptc y [Dkt. # 63]

. -7-the District of Columbi a,” and to any person “ca using tortious injury in the District of Columbi a by

an act or omission in the Di s t ri ct of Columbi a.” D.C. Code § 13-423(a )(1) & (a) (3). L ong -ar m jurisdiction is limit ed — “only a claim for reli ef arising from the acts enumerate d in this section
may be asser

ted ag ainst him.” Id

. § 423(b). Thus, claims unrela ted to the acts forming the basis for
persona l jurisdiction are barr ed. W illis v. W illis , 655 F.2d 1333, 1336 (D.C. Cir. 1981). A plaintiff
must a lleg e specific fac ts evidencing purposef ul activity in the District of Columbi a, by which the defe ndant invoked the benef its and protec tions of its laws. Novak-Canzeri v. HRH Prince Turki Bin Abdul Aziz Al Saud , 864 F. Supp. 203, 205 (D.D.C. 1994). The purposef ul activity must consist of either conducting business or causing tortious injury in D.C. Freiman v. Lazur , 925 F. Supp. 14, 21 (D.D.C. 1996). Section 423(a) (3) require s that both the tortious act and the tortious injury must have

occur red in the D istrict of Columbia. Id . at 22-23. Moreove r, even when the long- arm test has been met, p er sonal jurisdiction over a nonresident can be exercised only wher e the constitutional due proce ss standards are met. GTE New Media Servs., Inc. v. Bellsouth Corp. , 199 F.3d 1343, 1347 (D.C. C ir. 2000). “The constitution al
t ouchstone of the due proce ss deter mination is ‘whe ther the defe ndant purposef ully estab l i s h ed minimum contac ts in the forum state.’” COMSAT Corp. v. Finshipyards S.A.M. , 900 F. Supp. 515, 520 (D.D.C. 1995) (quoting Asahi Metal Indus. Co. v. Superior Court of Calif ornia, Solano County , 480 U.S. 102, 108-09 (1987))

.

Plaintiffs alleg e that Def endants eng ag ed in fra

u dulent conduct in the District of Columbi a by way of their contac ts with the I TC. AI MCOR and Globe alleg edly filed a fra udulent 1 2

The Complaints also ref

ere nce filings in the Court of Interna tional Trade

. See, e.g., Compl. 1 2 ¶¶ 39, 40, 55(u). That court, howeve r, is located in New York and not in the District of Columbi a. -8-antidumping petition with the I TC, and AI MCOR, Globe, SKW, and Elkem Metals alleg edly

provided misleading information , in c lu d in g p r o d u c e r q u estionnaires, to the I TC. See Compl. ¶¶ 19-

1 3 20, 38, 55e-g , 55i-n, 55s-t.

Def endants argue that the “government contac ts” doctrine bars relianc e on their
contac t s wi t h governme nt ag encie s as a basis for persona l jurisdiction. The doctrine shields defe ndants from sui t in the Dis trict of C olumbia when their sole contac t with the District consists of activity befor e federa l ag encie s for their own purposes. See Naartex Consulti ng Corp. v. W att , 722 F.2d 779, 787 (D.C. Cir. 1983). Simpl y put, suc h contac ts ma y not be considere d to e stablish
persona l jurisd i ct i o n , as t o do so would contravene the fundame ntal purpose of the doctrine — to protec t the First Amendme n t ri ght to petition the gover nment for redre ss of grieva nces, including petitions that constitute eff orts to “solicit commerc ial opportunities.” Harran Transp. Co. v. Nat’l Trail ways Bus System , No. 84-2864, 1985 WL 2349, at *4 n.14 (D.D.C. Aug

. 5, 1985) (bus sales);

see also Naartex , 722 F.2d at 787 (l o b b y i n g). “To permit our local courts to asser t persona l jurisdiction over nonresidents whose sole contac t with the District consists of dealing with a fede ral instrumentality not only would pose a th reat to fre e public participa tion in g overnme nt, but also would threa ten to conver

t the District of Columbi a into a national judicial forum.” Envtl. Researc h Int’l, Inc . v. Lockwood Gre ene E ng’s, Inc ., 355 A.2d 808, 813 (D.C. 1976) ( en banc ). Plaintiffs contend that beca use Def endants’ petition to the I TC was full of err ors and outrig ht fra

ud it is not shielded b y t h e go v er n m ent contac ts doctrine. See Pls.’ Opp’n at 14.

I TC questionnaires have the forc e of a subpoena, see 19 C.F.R. § 207.8, an d thus by 1 3 responding to a questionnaire a def endant c annot be sa id to have purpose fully availed itself of the forum. See Novak-Canzeri , 864 F. Supp. at 205 (to establish persona l jurisdiction, a plaintiff must alleg e fac ts evidenc ing purposef ul activity in the District of Columbi a, by which the defe ndant invoked bene fits and protec tions of its l aws). -9-Plaintiffs rely on dicta from Naartex stating , “[a] differ ent case might be prese nted had Naa rtex made cre dible and specific al l eg ations

. . . that the companies had used the proce eding s as an instrumentality

of the alleg ed fra

ud.” 722 F.2d at 787; see also Nichols v. G.D. Searle & Co. , 783 F. Supp. 233, 243 (D. Md. 1992) (following Naartex dicta ).

Despite the ear lier dicta in Naartex , in Freiman v. Lazur , 925 F. Supp. 14, the district
court square ly reje cted the claim that the g overnme nt contac ts doctrine does not apply to a g overnme nt contac t that was alleg edly fra udulent. I n Freiman , the plaintiffs contende d that persona l jurisdiction could be exercised over a d ef en d ant based on the defe ndant’s application to the U.S. Copy rig ht Offic e. 925 F. Supp. at 24. The plaintiffs argued that the g overnme nt contac ts doctrine did not apply beca

use the copy

rig ht application itself was fra udulent. Id

. Emphasizing the need to permit “unfe ttered acc ess to fede ral depar tments and ag encie s,” the court reje cted p l ai n t i ffs’
argument summarily , holding that even a fra udulent copy

rig ht application could not serve as a basis for persona l jurisdiction in the District of Columbi a. Id

. (citing Envtl. Researc h , 355 A.2d at 813).

Plaintiffs als o asser

t that the g overnme nt contac ts doctrine is limit ed to activities
p rotec ted by the First Amendment, and that beca use the First Amendment does not protec t fra u d u le n t
speec h, the g overnme nt contac ts doctrine should not apply when the communication with the fede ral instrumentality is fra

udulent. See Va. State Bd. of Pharmacy v. Va. Citi

zens Consumer Council, Inc. , 425 U.S. 748, 771 (1976) (“U ntruthful speec h, commerc ial or otherwise, has never been protec ted [by the First Amendment] for its own sake.” ). Plaintiffs rely on the D.C. Court of Appea ls decision in Rose v. Si l ve r , 3 9 4 A.2d 1368, 1374 (D.C. 1978), which concluded that “the First Amendment
p ro v i des the only principled basis for exempting a fore ign defe ndant from suit in the District of Columbi a . . . .”

-10-The D.C. Circuit has disapproved the narr ow view advanc ed by Plaintiffs. Naartex ,

722 F.2d at 786. I n Naartex , the C ircuit explained that inte rp re t i n g R o s e to limit the gover nment
contac ts principle to activities that implicate the First Amendment would conflict with the broade r d ec i sion of the D.C. Court of Appea ls en banc in Environmental Researc h — the decision that permitting persona l jurisdiction over a nonresident whose sole contac t with the District consisted of dealing with a fede ral ag ency would “pose a threa t to fre e public participa tion in g overnme nt” and “would threa ten to conver t the District of Columbi a into a national judicial forum.” Envtl. Researc h , 355 A.2d at 813. The Circuit explained that a panel has no authority to issue a decision in c onflict with a ruling en banc , and thus the panel opinion in Rose should not be rea d to conflict with the clea r holding of the en banc court in Environmental Researc h

. Naartex , 722 F.2d at 786. Whil e Naartex did not resolve the potential conflict between Rose and Environment a l Researc h , it noted t hat t he

en banc holding controls. Id

. at 786-87; see also Inv. Co. Inst. v. United States , 550 F. Supp. 1213, 1216 (D.D.C. 1982) (cour ts apply ing the g overnme nt contac ts doctrine “have not spoken in traditional First Amendment terms”)

. The g overnme nt contac ts doctrine bars Plaintiffs from relying on Def endants’ pa

rticipation in the I TC proce eding s as a ba sis for per sonal jurisdiction. C. F oreign Defendants Even if c ontacts wit h the I TC could be the basis of per sonal jurisdiction, the Court still would have to dismiss fore ign corpor ations Trostberg and Elkem A/S beca use they wer e not at all involved in the I TC petition. Plaintiffs alleg e that Trostberg and Elkem A/S wer e involved in the
I TC petition beca

use unions repr esenting the em p l oy ees of their subsidiaries, SKW and Elkem Metals, respe cti v el y , s i g ned the petition. First, Plaintiffs’ asser tion that the Court has persona l jurisdiction over SK W and Elkem Metals beca use they “induce d” their unions to join in the I TC

-11-petition and beca use they paid the unions’ leg al fee s, see Compl. ¶ 20, does not suffice to show any
contac t with the District of Columbi a that would confe r persona l jur isdiction ove r SKW or Elkem Metals; there is no evidenc e that the alleg ed “inducing ” or pay ment of fee s occur

red in the District. Fur ther, persona l jurisdiction over a pare nt corpor ation may be exercised based on the activities of its subsi diary

only if the subsidiary

is the ag ent or a lter eg o of the pa rent; mere stock owner ship is insufficient. Caribe Tra i l er Sys., Inc. v. Puerto Rico Mar. Shipping Auth. , 475 F. Supp. 711, 717 (D.D.C. 1979), aff’d without op. , No. 79-1658, 1980 WL 130478 (D.C. Cir. J uly 3, 1980). Trostberg divested itself of any owner ship in SKW on Dec ember 31, 1992, befor e the antidumping petition was filed rela ting to Br azilian imports in 1993. See Trostberg ’s Mot. to Dismiss [ Dk t

. # 80], Ex

. 2 (“L eber t Dec l.”) ¶ 4. Trostberg did not submit any briefs or otherwise participa te in the I TC petition

as it ha d no leg al or financ ial interest in the outcome of the petition. L eber

t D ecl. ¶¶ 8-10. Elkem Metals opera

tes independently from Elkem A/S, with separ ate office rs, staff, manufa cturing fac iliti es, and bank accounts. See Elkem’s Mot

. to Dismiss [Dkt. # 79], Ex . A (“L aRusso Dec l.”) ¶ 6. Plaintiffs point to no evidenc e in support of t he propositi on that Elkem Metals was the ag ent or alter eg o of its pare nt or that SKW was the ag ent or a lter eg o of its former pare nt. D. Conspiracy Theory of Pe rsonal Jurisd iction Plaintiffs also alleg e that the Court may exercise p er sonal jurisdiction over all Def endants be cause they

wer e co- conspirator s of TFA , the fe rrosilicon produc er or g anization that did business in the District before its bankruptcy . “The conspirac y theory of jurisdiction provides that wher e a court has persona l jurisdiction over the co-c onspirator of a non-re sident defe ndant

. . . due to overt acts committed by the co-c onspirator in the forum in further ance of the conspirac y , the

co-c onspirator is deeme d the non-re sident defe ndant’s ‘ag ent’ for purposes of the long arm statute.”

-12-United S t a t es v. Philip Morris Inc. , 116 F. Supp. 2d 116, 122 (D.D.C. 2000). To establish a

conspirac y theory of

jurisdiction, a plaintiff must show that both the overt act and the injury occur red i n t h e Di s trict. Delgado v. Fed. Bureau of Prisons , 727 F. Supp 24, 27 (D.D.C. 1989). Her e, Plaintiffs’ conspirac y theory of jurisdiction fails, as they do not alleg e any

overt a ct by TFA in the District. Plaintiffs alleg e only that “TF A actively p articipa ted in the fra udulent conduct and conspirac y and was an instrumen t o f t h e ra cketeering activity that forms part of the basis for plaintiff’s suit,” see Compl. ¶ 11, and that Def endants held meeting s, made phone calls, and mailed letters “under the aeg is of the TFA .” See id

. ¶¶ 18 & 22. These alleg ations do not demonstrate any
overt a ct by

TFAin the District. E. Venue in a Crim inal Case Plaintiffs further cla i m that Def endants purposely acte d within the District of C o l umbia to fra

udulently obtain antidumping duties in violation of a criminal statute, 18 U. S

. C § 1001(a) ; that venue for the pro s ec u t i o n o f this crime would be proper here ; and thus that Def endants should “re asonably anticipate bei n g h al ed into a court” within the district wher e the defr auded ag ency is located. Pls.’ Opp’n at 10. Plaintiffs cite no support whatsoeve r fo r t h i s proposition. The proper venue for a crimi nal prosec ution is not rele vant to the issue of persona l jurisdiction in a civil case , even wher e the civil case is alleg edly rela ted to the criminal case . Fur ther,

conce pts of venue and persona l jur isdiction a re separ ate and distinct; the question of venue has no bear ing on the question of persona l jurisdiction. Berning v. BBC Inc. , 575 F. Supp. 1354, 1357-58 (D. Ohio 1983).

F . P laintif

fs’ Alternative R equest to Transfer Plaintiffs reque st, in the event that the Court finds it lacks persona l jurisdiction, that

-13-the Court transfe r these case s instead of dismiss ing them. A court may transfe r a case even though

it lacks persona l jurisdiction over the defe ndants. Naartex , 722 F.2d at 789. Transf er is proper under 28 U.S.C. § 1406(a) when proce dural obstacles such as lack of persona l jurisdiction impede adjudication on the merits. Sinclair v . Kleindienst , 711 F.2d 291, 293- 94 (D.C. Cir. 1983). Thus,

a cour t may transfe r a case to any jurisdiction which has persona l jurisdiction over the defe ndants and in w hich venue is proper . Haley v. Astrue , 667 F. Supp. 2d 138, 142 (D.D.C. 2009) (citing 28 U.S.C. § 1406(a) ); see a l s o 2 8 U. S

. C.§ 1404(a) (a court may transfe r a civil action to any other di s t ri ct where it could have been broug ht “for the convenie nce of parties and witnesses, in the interest of justice

. . .”). To deter mine whether a cas e co uld have been broug ht in another jurisdiction, venue must be proper in the transfe ree court and the defe ndant must be “subjec t to the
proce ss” of the fede ral court in the transfe ree district at the time the action was orig inally filed. Relf

v. Gasch , 511 F. 2d 804, 806-07 (D.C. Cir. 1975). A defe ndant is “subjec t to p roce ss” in the transfe ree court if the defendant would have been subject to the personal jurisdiction of that court
at the time the case was filed. Levin v. Maj estik Surface Corp. , 654 F. Supp. 2d 12, 15 (D.D.C. 2 0 09) (citing Hoffman v. Blaski , 363 U.S. 335, 343-44 (1960)). Be fore a case invol ving m u l t i p l e defe ndants can be transfe rre d, it must be deter mined that all defe ndants would have been subject to
persona l jurisdiction in the transfe ree court at the time the case was orig inally filed. Hoffman , 363 U.S. at 344.
I n reque sting transfer instead of dismiss al, Plaintiffs do not sug g est any particula r forum that would be appropr iate. I nstead, they state that CC Metals identified various appropr iate transfe ree courts. See Pls.’ Opp’ n at 19. I n fac t, CC M etals did no such thing. CC Meta ls me rely stated that AI MCOR and Elkem Metals can be found in Pennsy lvania and that Elkem and CC Metals

-14-can be found in New York. See CC Metals’ Mot. to Dismiss [Dkt. # 84] at 44 n.22. This does not

establish that persona l jurisdiction could have been established over all Def endants in any one place
at the time these case s wer e filed. Def endants are residents of Delaw are , Pennsy lvania, Ohio, New York, Nor

way , and Ger

many , and they are not a ll r esidents of any single place . Fur

ther, Plaintiffs have not pointed to a

ny common place wher e all Def endants had office s or ag ents or did business,

nor have they indicated any one location (other than this District) wher e t h e al l ege d fra udulent conduct occur

red. Be cause Plaintiffs have not identified any proper forum to which this case could 1 4 be tra nsfer red, the ir reque st for transf er w ill be denied. IV. CONCLUSION As explained above, Plaintiffs have not met their burden of demonstrating a fac tual basis for persona l jurisdiction over Def endants in this District or in a ny other judicial district. See Crane , 894 F.2d at 456 (plaintiff bear s the burden of establishing a fac tual basis for the exercise of
persona l jurisdiction). Be cause the Court lacks persona l jurisdiction over Def endants, and Plaintiffs have pointed to no judicial district wher e persona l jurisdiction would be proper over all Def endants, Def endants’ motions to dismiss will be g ranted and Plaintiffs’ reque st to transfe r will be denied. Acc ording ly , the Court will gr ant the followingmotions t o dismiss :

(1) Motion to Dismiss filed by E l k em M etals, I nc. and Elkem A/S [C iv. No. 01-646, Dkt. # 79 & Civ. No. 01-2678, Dkt. # 29]; (2) Motion to Dismiss filed by Evonik DeGussa GmbH [C iv. No. 01- 646, Dkt. # 80 & Civ. No. 01-2678, D kt. # 30] ;

CC Metals also notes that Pennsy lvania was the location of the majority of the price fix ing 1 4 meeting s and that New York was the location of the criminal price fix ing trial ag ainst CC Meta ls. See CC Metals’ Mot. to Dismiss at 44 n.22. But the locations of the pr ice f ix ing sc heme a

nd trial are not rele vant here — the rele vant alleg ed conspirac y for the purpose of this lawsuit is the antidumping c onspiracy

. -15-(3) Motion to Dismiss filed by Applied I ndustrial Materia ls Corporation [C iv. No. 01-646, Dk t

. # 82 & Civ. No. 01-2678, Dkt. # 32]; and (4) Motion t o Di s m i s s filed by CC Metals & Alloy s, I nc. [C iv. No. 01-646, Dkt. # 84 & Civ. No. 01-2678, Dkt. # 34]. Fur ther, althoug h Def

endant Globe did not ref

ile its motion to dismiss , the g rounds
set forth in its orig inal filing are well-founde d, see Globe’s Mot. to Dismiss [ Dk t

. # 17], and the

rea soning set forth in this M em orandum Opinion applies equally to Globe as it does to the other Def endants. Thus, Globe also will be dismiss ed from these case s. I n addition, TFA will be dismiss ed, as Plaintiffs no longe r pursue their claims ag ainst it

. T h es e consolidated cases will be dismiss ed and c losed.

Date: Marc h 26, 2010 __________/s/______________________________ ROSEMARY M. COL L YER United States District J udg e

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