J&D International Trading (Hong Kong) Limited v. MTD Equipment, LLC et al

Filing 135

ORDER granting Fountainheads Motion to Dismiss for Lack of Personal Jurisdiction 20 ; denying Days Motion to Dismiss for Lack of Personal Jurisdiction 65 ; granting Plaintiffs Motion for Leave to file First Amended Complaint 112 ; granting in part and denying in part OmniSource Defendants Motion for Judgment on the Pleadings 80 ; and granting in part and denying in part MTD Defendants Motion for Judgment on the Pleadings 81 . Signed by Judge Richard W. Story on 4/28/14. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
J&D INTERNATIONAL
TRADING (HONG KONG)
LIMITED,
Plaintiff,
v.
MTD EQUIPMENT, LLC; MTD
AMERICA LIMITED; SECOND
PASS, LLC; OMNISOURCE
SOUTHEAST, LLC;
FOUNTAINHEAD TRADING,
LLC; ASHLEY DAY; and JOHN
DOES ENTITIES 1-10,
Defendants.

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CIVIL ACTION NO.
1:13-CV-2526-RWS

ORDER
This case is before the Court on Fountainhead Trading, LLC’s
(“Fountainhead”) Motion to Dismiss [20], Ashley Day’s (“Day”) Motion to
Dismiss [65], OmniSource Southeast, LLC, OmniSource Corporation, and
Second Pass, LLC’s (collectively, “OmniSource Defendants”) Motion for
Judgment on the Pleadings as to Count XI [80], MTD America Limited and
MTD Equipment, LLC’s (collectively, “MTD Defendants”) Motion for
Judgment on the Pleadings [81], and Plaintiff’s Motion for Leave to File First

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Amended Complaint [112]. After reviewing the Parties’ submissions and the
record, the Court enters the following Order.
Background1
This dispute arises out of several contracts to purchase scrap metal
containing insulated copper wire (“ICW”). Plaintiff is a metals recycler located
in Hong Kong, China. Defendants are scrap metal dealers located in various
parts of the United States.
In May 2011, Defendant Day contacted Alice Huang (“Huang”), the
principal of Plaintiff. Day told Huang that he was the Vice-President of MTD
America (“MTDA”) and one of the managing partners of Second Pass, a joint
venture between OmniSource and MTDA. Day offered to sell Plaintiff large
and small ICW, and represented in an email to Huang that the copper recovery
for the small wire was 41% and the copper recovery for the large wire was 36%.
Plaintiff agreed to purchase three containers of large wire and three containers
of small wire on a trial basis.

1

Unless otherwise noted, the background facts are taken from Plaintiff’s
Proposed Amended Complaint [112-1] and are accepted as true.
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Upon Day’s instruction, Plaintiff contacted a representative of
OmniSource to finalize the sale, at which time Plaintiff was told the materials
were Second Pass materials. OmniSource issued a sales contract for these
initial loads of ICW on May 20, 2011. The copper content of these first six
containers received by Plaintiff substantially conformed to the representations
and warranties made by Day. Subsequently, Plaintiff contracted with
OmniSource to buy fourteen additional container loads of large ICW and
eighteen additional loads of small ICW. The small ICW substantially
conformed to the representations and warranties made by Day, but four of the
containers of large ICW contained only 33% copper. Day acknowledged the
shortfall and reimbursed Plaintiff through price discounts on later loads of ICW.
As of November 2011, Plaintiff had received twenty-four loads of
conforming ICW and only four containers of nonconforming large ICW (for
which Plaintiff was reimbursed). Consequently, Plaintiff agreed to purchase
more ICW through Day. However, the next ten containers of large ICW
ordered by Plaintiff contained approximately 29-33% copper. Again, to
compensate Plaintiff for the shortfall, Day offered to discount pricing for future

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loads of ICW. Based on these discounts for the non-conforming wire, Plaintiff
continued to do business with Day.
Between November 2011 and January 2012, Day negotiated, on behalf of
OmniSource, Plaintiff’s purchase of twenty-four additional containers of small
ICW and seventeen containers of large ICW. Plaintiff received those loads
between February and April 2012. Plaintiff discovered that the delivered ICW
materials yielded a significantly lower copper content than the 41% (small) and
36% (large) warranted by Day, even though Day wrote to Huang in an email:
“it’s the same as you have received before. We have two locations where this
ICW is generated, though they are brought to 1 location for shipment.”
In October 2011, while he was also negotiating the initial contracts for
OmniSource, Day sent an email to Plaintiff stating, “With respect to more
loads: we have another facility in Birmingham, Alabama that generates good
wire though I would want you to inspect the product before we took any
orders.” Plaintiff responded that it could not send someone to inspect the wire,
but would purchase a few trial loads. Plaintiff asked for pictures of the
Birmingham materials. Day responded that they were the “same pics” as last
time because it was “similar material.”
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Day then instructed Plaintiff to contact John Marynowski to arrange
shipment of the ICW. Marynowski, in turn, informed Plaintiff that it would be
buying the material from Fountainhead. On December 15, 2011, Plaintiff sent
two purchase confirmations to Fountainhead. Two days later, Marynowski
wrote to Plaintiff that the wire “is as good or better than what you have been
receiving,” which, at that time, was the twenty-four containers of conforming
wire and four non-conforming loads of large wire from OmniSource’s early
contracts. However, when the goods arrived in March 2012, Plaintiff
discovered that the Fountainhead wire yielded significantly less copper content
than the 41% and 36% warranted by Day.
Prior to receiving its first shipment of ICW from Fountainhead, in
January 2012, Plaintiff negotiated with Fountainhead for the purchase of two
more loads of small ICW and two more loads of large ICW. Again, the ICW
was non-conforming. When Plaintiff raised the issue with Marynowski,
Marynowski responded, “We make the same product as they do in Kernersville
and Spartanburg . . .” (facility locations for OmniSource SE and Second Pass).
Day then arranged for two representatives to visit Plaintiff’s facility in China to
inspect the Fountainhead material.
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On January 4, 2012, Day emailed Huang: “We are ready to move the
approx. 675 tons of ICW we have in inventory . . . this wire recovers 43-45%.”
Day explained that this ICW was “from a different [joint venture] plant in
Europe with different quality.” After Plaintiff asked Day if he would guarantee
copper recovery of 43-45%, Day responded with photos and a message: “I have
just looked at the recovery report again regarding the copper content and the
conservative copper content is 40% . . . .” Day and Huang then negotiated the
sale of 1.4 million pounds of ICW with a 40% copper yield.
On January 10, 2012, Day wrote to Plaintiff: “Let’s get the contracts
going. We are doing this business through our company MTDE located 3465
Hamilton Blvd Hapeville Ga 30354, use this on the contract. The containers
need to be delivered to 3760 Browns Mill Road, Atlanta, Ga. 30354 as this is
the location of the ICW.” Plaintiff received the MTDE wire in late March,
April and May 2012. Again, the copper content was significantly below the
40% represented by Day.
On February 18, 2012, Day emailed Plaintiff to say he had seven loads of
large ICW and fourteen loads of small ICW from “our second pass operations.”
Plaintiff raised quality concerns with the loads that had already arrived in
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China. Day then quoted a price “base [sic] on the normal quality from the
regular business,” which Plaintiff accepted. Day instructed Plaintiff to
communicate with Ken Wilhelm of OmniSource SE to finalize the shipping
details. Whilhelm directed Plaintiff to put “Second Pass, LLC” on the purchase
confirmation as the entity from which Plaintiff was buying the ICW. This
Second Pass wire was received in May 2012 and once again, the copper yield
was significantly below the 41% and 36% warranted by Day.
At the instruction of Defendants (via Day and other representatives),
Plaintiff wired payment to Defendants’ respective bank accounts for each
contract prior to the ICW materials being shipped to China. Therefore, Plaintiff
did not have the opportunity to inspect the materials before paying. As detailed
above, Plaintiff did not begin receiving regularly non-conforming goods until
after virtually all of the contracts had been negotiated. According to Plaintiff,
the ICW received pursuant to the later OmniSource contracts, the Fountainhead
contracts, the MTDE contract and the Second Pass contract yielded copper
content between 17.73% and 25.47%. Plaintiff notified Day and John Camozzi,
an individual who helped coordinate shipment of the MTDE ICW to Plaintiff,
of the quality issues with the ICW received from each Defendant. Thereafter,
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Day and Camozzi met with Plaintiff’s representatives at MTDE’s offices in
Atlanta to discuss potential resolution of Plaintiff’s claims. However,
Defendants refused to reimburse Plaintiff for its overpayment for the nonconforming ICW, and this lawsuit ensued.
Discussion
I.

Motions to Dismiss for Lack of Personal Jurisdiction
“A plaintiff seeking the exercise of personal jurisdiction over a

nonresident defendant bears that initial burden of alleging in the complaint
sufficient facts to make out a prima facie case of jurisdiction.” United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). Where a defendant
challenges jurisdiction with affidavit evidence, “the burden traditionally shifts
back to the plaintiff to produce evidence supporting jurisdiction.” Id. (internal
quotations and citation omitted). If the complaint and the plaintiff’s supporting
evidence conflict with the defendant’s affidavits, “the court must construe all
reasonable inferences in favor of the plaintiff.” Meier ex rel. Meier v. Sun Int’l
Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).
The Court employs a two-step inquiry to determine whether jurisdiction
exists. First, the exercise of jurisdiction must “be appropriate under the state
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long-arm statute.” Mazer, 556 F.3d at 1274. Second, the exercise of
jurisdiction must not violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Id.
The Georgia long-arm statute provides, in pertinent part:
A court of this state may exercise personal jurisdiction
over any nonresident or his executor or administrator,
as to a cause of action arising from any of the acts,
omissions, ownership, use, or possession enumerated
in this Code section, in the same manner as if he or
she were a resident of this state, if in person or
through an agent, he or she:
(1)

Transacts any business within this state;

(2)

Commits a tortious act or omission
within this state, except as to a cause of
action for defamation of character arising
from the act. . . .

O.C.G.A. § 9-10-91(1) and (2).2 The extent of the long-arm statute is governed
by state law. In Innovative Clinical & Consulting Servs., LLC v. First Nat’l
Bank of Ames, Iowa, 620 S.E.2d 352 (Ga. 2005), the Georgia Supreme Court

2

The Court agrees with Defendant Day that subsection (3) of the long-arm
statute is not relevant to this case. (See Day MTD Br., [65-2] at 8 of 14.) Subsection
(3) applies when a non-resident defendant commits a tortious injury in Georgia.
O.C.G.A. § 9-10-91(3). The Complaint (and the Proposed Amended Complaint) fails
to allege any injury that occurred in Georgia.
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clarified that Georgia’s long-arm statute does not grant personal jurisdiction
coextensive with procedural due process. “Instead, the long-arm statute must
be read literally. It imposes independent obligations that a plaintiff must
establish for the exercise of personal jurisdiction that are distinct from the
demands of procedural due process.” Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1259 (11th Cir. 2010) (interpreting
Innovative Clinical, 620 S.E. 352).
Courts employ a three-part test to determine whether jurisdiction exists
based on transaction of business in Georgia (i.e., under subsection (1) of the
long-arm statute): “if (1) the nonresident defendant has purposefully done some
act or consummated some transaction in this state, (2) if the cause of action
arises from or is connected with such act or transaction, and (3) if the exercise
of jurisdiction by the courts of this state does not offend traditional fairness and
substantial justice.” Aero Toy Store, LLC v. Grieves, 631 S.E.2d 734, 737 (Ga.
Ct. App. 2006). “[S]ubsection (1) long-arm jurisdiction in Georgia expressly
depends on the actual transaction of business – the doing of some act or
consummation of some transaction – by the defendant in the state.” Diamond
Crystal, 593 F.3d at 1260. Similarly, to satisfy subsection (2) of the long-arm
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statute, “a nonresident defendant must do certain acts within the state of
Georgia.” Id. (emphasis added) (internal quotations and citation omitted).
If the Court determines that personal jurisdiction exists under Georgia’s
long-arm statute, a separate due process inquiry follows. “The Due Process
Clause protects an individual’s liberty interest in not being subject to binding
judgments imposed by foreign sovereigns.” Burger King Corp. V. Rudzewicz,
471 U.S. 462, 471-72 (1985). Accordingly, due process requires “that the
defendant’s conduct and connection with the forum State be such that he should
reasonably anticipate being haled into court there.” Id. at 474 (internal
quotations and citation omitted). “Therefore, states may exercise jurisdiction
over only those who have established certain minimum contacts with [the
forum] such that the maintenance of the suit does not offend ‘traditional notions
of fair play and substantial justice.’” Diamond Crystal, 593 F.3d at 1267
(quoting Helicopteros Nacionales de Columbia S.A. v. Hall, 466 U.S. 408, 414
(1984)).
A.

Ashley Day’s Motion to Dismiss

Day argues the Court lacks personal jurisdiction over him because he
does not fall within subsection (1) or (2) of the long-arm statute. (See
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generally, Day MTD Br., [65-2].) It is undisputed that Day is a resident of
California. The Complaint does not allege any improper acts committed by Day
in Georgia. Further, he notes: none of his communications at issue in this case
occurred in, to or from Georgia; he has no office in Georgia; he did not come
into Georgia to conduct business with Plaintiff; he did not come to Georgia for
any reason related to the transactions in this case;3 he does not have any bank
accounts in Georgia; and he does not own property in Georgia. (See generally,
Declaration of Ashley Day, [65-1].)
Plaintiff counters that Day does have sufficient contacts in Georgia to
satisfy the long-arm statute: he owns a minority interest (10%) in MTDA; until
December 2012, he owned a minority interest (10%) in MTDE; he represented
to Plaintiff that he was a Vice President of MTDA and one of the managing
partners of Second Pass, a joint venture between OmniSource and MTDA; he
solicited and negotiated the sale of MTDE’s ICW, which was located in and

3

Day does admit that he came to Georgia to meet with Plaintiff’s
representatives in August 2012, at Plaintiff’s request, after the subject contracts had
been performed and after Plaintiff raised concerns about the quality of the ICW.
According to Day, the purpose of the meeting was to discuss possible settlement of
Plaintiff’s claims against MTDE. (See Second Declaration of Ashley Day, [76-1] ¶¶
5-6.) As noted by Day, however, the August 2012 meeting does not have any relation
to the allegations underlying Plaintiff’s claims.
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shipped from Georgia; he instructed Plaintiff to send containers to Atlanta,
Georgia where MTDE’s ICW was located; and he is listed as the “sales person”
on the purchase confirmation with MTDE, which was delivered to Day via
email but listed the seller’s address in Georgia.4 (See Pl.’s Resp. Br., [71] at 3-8
of 27; Declaration of Alice Huang, [28-1] ¶ 5; Second Declaration of Alice
Huang, [71-1] ¶¶ 19-23.)
The Court agrees with Plaintiff that the exercise of personal jurisdiction
over Day is proper. The facts here are similar to those in Diamond Crystal, 593
F.3d 1249. In that case, the Eleventh Circuit found that subsection (1) of the
long-arm statute was satisfied where the non-resident defendant: sent purchase
orders to a specific manufacturer in Georgia; required delivery by customer
pick-up in Georgia; arranged for third parties to pick up the goods in Georgia;

4

Day questions the relevance of the MTDE purchase confirmation to the
Court’s personal jurisdiction analysis because the confirmation was not sent to, or
from, or executed in, Georgia; instead, it was prepared by Plaintiff abroad and sent to
Day in California via email. The Court finds this point unpersuasive. Day stated that
he did not receive any payments for any of the contracts at issue in this case. But the
Complaint alleges that $1.3 million was paid by Plaintiff for the MTDE ICW.
(Compl., [1] ¶ 101.) Therefore, presumably, MTDE (the Georgia-based company)
received payment pursuant to the terms of the purchase confirmation. (MTDE
Purchase Confirmation, [71-1] at 26 of 63.) See Diamond Crystal, 593 F.3d at 1266
(“The implied promise to send payments to Georgia is relevant to whether [the nonresident defendant] transacted in business there.”).
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and promised to pay money into Georgia for the sale. 593 F.3d 1249. The nonresident defendant in Diamond Crystal relied on arguments similar to Day’s
contentions here: it was a California resident with no offices or personnel
outside of California, all of the negotiations took place in California, and the
non-resident defendant did not ever come to Georgia to negotiate the
transaction or take delivery of the product. Id. at 1254-56. However, the court
concluded that based on a literal reading of the long-arm statute, the nonresident defendant had transacted business in Georgia when it ordered product
from a Georgia manufacturer, required pick-up in Georgia, transferred legal title
of the goods in Georgia, and promised payment in Georgia. Id. at 1266-67.
Plaintiff alleges that Day engaged in similar Georgia-targeted conduct
here. Even though he did not set foot in Georgia, Day did: solicit and negotiate
business on behalf of Georgia-based MTDE, arrange for pick-up of the ICW in
Georgia, finalize the sale of product located in Georgia, and arrange for
payment to MTDE in Georgia. (See MTDE Purchase Confirmation, [71-1] at
26 of 63.) Furthermore, the causes of action asserted in the Complaint (and
Proposed Amended Complaint) are related to the ICW contracts (allegedly
negotiated by Day) and Day’s representations regarding the quality of the ICW,
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including MTDE’s ICW. Thus, the Court finds Day did transact business in
this state and subsection (1) of the long-arm statute is satisfied.5
The Court also finds that exercise of personal jurisdiction over Day
satisfies due process. Again, Diamond Crystal is analogous to this case. There,
the court found that the non-resident defendant “established sufficient minimum
contacts when it purposefully carried on a substantial and ongoing relationship
with a Georgia manufacturer, specified delivery by ‘customer pickup’ in
Savannah, took and transferred legal title to product in Savannah, and sent
payments to Savannah on twelve of the fourteen transactions.” 593 F.3d at
1267. Here, Day had an ownership interest in two Georgia-based Defendants
(MTDA and MTDE); he represented himself as Vice President of Georgiabased MTDA when he contacted Plaintiff; he conducted negotiations on behalf
of Georgia-based MTDE; after numerous communications with Plaintiff on
behalf of MTDE, he finalized the sale of goods located in Georgia; he directed
Plaintiff to send containers to pick up MTDE’s ICW in Georgia; and he was the

5

Alternatively, Plaintiff argues jurisdiction over Day is proper under
subsection (2) of the long-arm statute because Plaintiff has alleged that Day conspired
with resident co-conspirators to commit tortious acts in Georgia. Having found that
Day transacted business in Georgia for purposes of subsection (1) jurisdiction, the
Court need not address Plaintiff’s conspiracy jurisdiction theory.
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named sales person on the purchase confirmation promising payment to
Georgia-based MTDE.
Looking at the entirety of the course of dealing and transactions at issue
in this case, the Court finds that Day deliberately engaged in significant
activities with Georgia. See Diamond Crystal, 593 F.3d at 1268 (“[W]hen
inspecting a contractual relationship for minimum contacts, we follow a ‘highly
realistic approach’ that focuses on the substance of the transaction . . . . The
focus must always be on the nonresident defendant’s conduct, that is, whether
the defendant deliberately engaged in significant activities within a state or
created continuing obligations with residents of the forum.”) (citing Burger
King, 471 U.S. at 478, 480)). Day’s contacts with Georgia are not random,
fortuitous, or attenuated. Based on Day’s ongoing business affiliations with
Georgia-based companies and the entire course of dealing in this case,
particularly with respect to MTDE, he should reasonably expect to be haled into
court in Georgia.
Therefore, the Court finds that exercise of personal jurisdiction over
Defendant Day satisfies both Georgia’s long-arm statute and the Due Process

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Clause. Accordingly, Day’s motion to dismiss for lack of personal jurisdiction
is DENIED.
B.

Fountainhead Trading, LLC’s Motion to Dismiss

Fountainhead also moves to dismiss based on lack of personal
jurisdiction. Fountainhead argues that the “sole basis for the Plaintiff’s claim
that Fountainhead Trading is subject to the jurisdiction of this Court is the fact
that the goods shipped by Fountainhead Trading physically passed through
Georgia en route to Hong Kong.” (Fountainhead MTD Br., [20-2] at 2 of 15.)
Fountainhead maintains that this single allegation is not sufficient to establish
that it transacted business in Georgia and therefore, exercise of personal
jurisdiction is improper under the long-arm statute.
Plaintiff’s response is two-fold. First, Plaintiff argues that subsection (1)
of the long-arm statute is satisfied because Fountainhead “consummated four
separate transactions in Georgia by delivering ICW to Georgia.” (Pl.’s Resp.
Br., [28] at 16 of 29.) Second, Plaintiff contends that subsections (2) and (3) of
the long-arm statute apply under a theory of “conspiracy jurisdiction.”6 (Id. at

6

The Court has already addressed the inapplicability of subsection (3) to this
matter and therefore limits its consideration to subsections (1) and (2).
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17-19 of 25.) Applying the same standards and analysis discussed above with
regard to Day’s motion, the Court finds that the exercise of personal jurisdiction
over Fountainhead is improper.
Fountainhead has its principal place of business in Birmingham,
Alabama. According to affidavit evidence submitted in support of its motion,
Fountainhead has no offices, bank accounts, personnel, or registered agent in
Georgia. The contracts between Fountainhead and Plaintiff were accepted in
Alabama, and none of the negotiations pertaining to those contracts occurred in
Georgia. All payments for Fountainhead’s ICW were transferred to Alabama.
Fountainhead’s ICW was placed in containers in Alabama. No person, firm or
corporation purchased, used or consumed any portion of the product in Georgia.
Fountainhead does not and has not regularly shipped goods into Georgia for
use, consumption or reproduction. No event such as negotiations, wire
transfers, emails, letters or other communications between Plaintiff and
Fountainhead occurred in Georgia. (See generally, Affidavit of Paul Dreher,
[20-1].) Fountainhead’s only link to Georgia in this matter is a “free alongside
Atlanta” shipping term in its contracts with Plaintiff. Because of that shipping

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term, Fountainhead’s goods were shipped through Georgia before being put on
ships bound for China.
Plaintiff claims that Fountainhead transacted business in Georgia when it
chose to deliver eight containers of ICW to Georgia, pursuant to four separate
contracts, and when it allowed employees and officers of Georgia-based
companies (Day and Marynowski) to negotiate Fountainhead’s contracts with
Plaintiff. (Pl.’s Resp. Br., [28] at 1-2 of 29.) First, with respect to
Fountainhead transporting goods through Georgia, the Court is not persuaded
that inclusion of the delivery term “Free Alongside Atlanta”7 constitutes
“transacting business” in Georgia. The contract, including this term, was not
negotiated in Georgia. There is no evidence that payment was exchanged in
Georgia when the goods were shipped through the state. The record does not
show that the containers (containing Alabama product) were opened in Georgia.
Shipment through Georgia was handled by an independent carrier, not
Fountainhead. In fact, there is no indication that anything happened in Georgia

7

Under the F.A.S. delivery term, the seller must: “(a) At his own expense and
risk deliver the goods alongside the vessel in the manner usual in that port or on a
dock designated and provided by the buyer; and (b) Obtain and tender a receipt for the
goods in exchange for which the carrier is under a duty to issue a bill of lading.”
O.C.G.A. § 11-2-319(2).
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related to the Fountainhead contracts, other than risk of loss passed to Plaintiff
at the port of Savannah (a port that can accommodate such shipments to China
and a reasonable passing-through point from Alabama to Asia).
Even if inclusion of the F.A.S. term in the contracts signifies that
Fountainhead technically transacted business in Georgia, the second prong of
subsection (1)’s test is not satisfied. The cause of action must arise from or be
connected with the Georgia act or transaction. Aero Toy Store, LLC v. Grieves,
631 S.E.2d 734, 737 (Ga. Ct. App. 2006). Here, none of the claims (breach of
contract, breach of warranty, conspiracy, federal and state RICO, etc.) arise out
of the single event that occurred in Georgia – transfer of the goods and risk of
loss to Plaintiff. Therefore, exercise of personal jurisdiction over Fountainhead
is not proper under subsection (1) of the long-arm statute.

Furthermore,

the Eleventh Circuit has expressed reservation about whether a delivery term in
a contract, without more, provides sufficient minimum contacts for the
constitutional exercise of personal jurisdiction. In Diamond Crystal, 593 F.3d
at 1272-73, the court explained:
Although we have never explicitly reached this
holding, we have cited cases [from other circuits] that
have rejected the argument that an F.O.B. forum
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delivery term provided sufficient minimum contacts.
An F.O.B. forum delivery term does not necessarily
create minimum contacts because it is a formal term
relating to title and who bears the risk of loss.
Particularly when the goods are shipped outside of the
forum, an F.O.B. delivery term may not be a sufficient
indicator of the defendant’s purposeful availment of
the forum’s laws.
(internal citations omitted). The due process analysis, which requires deliberate
engagement in significant activities within the forum by the non-resident
defendant, “ensures that a defendant will not be subject to jurisdiction based
solely on ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Id. at 1268 (quoting
Burger King, 471 U.S. at 475). Delivery terms (negotiated outside of the forum
state) specifying reasonable shipping points along an international route seem to
this Court to be the sort of random and attenuated contacts with which the Due
Process Clause is concerned. The Court concludes that inclusion of the F.A.S.
term in Fountainhead’s contracts with Plaintiff is not, on its own, enough for
Fountainhead to reasonably expect to be haled into Court in Georgia.8

8

To the extent Plaintiff relies on a theory that Day or Marynowski (who is not
even a named defendant) were acting as agents for Fountainhead when they
communicated with Plaintiff about the Fountainhead contracts, the same analysis
applies. Even though Plaintiff alleges that Day and Marynowski have Georgia “ties,”
it does not alter the circumstances of the Fountainhead transactions. Notably, there
are no allegations that any of their acts on behalf of Fountainhead took place in
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Plaintiff’s second argument for exercising personal jurisdiction over
Fountainhead is based on subsection (2) of the long-arm statute and “conspiracy
jurisdiction.”9 In Georgia, “the in-state acts of a resident co-conspirator may be
imputed to a non-resident co-conspirator to satisfy jurisdictional requirements
under some circumstances.” Rudo v. Stubbs, 472 S.E.2d 515, 516 (Ga. Ct.
App. 1996) (emphasis added); see also Hyperdynamics Corp. v. Southridge
Capital Management, LLC, 699 S.E.2d 456, 466 (Ga. Ct. App. 2010). Under a
theory of subsection (2) conspiracy jurisdiction, due process requirements must
still be satisfied as to the non-resident defendant. Rudo, 472 S.E.2d at 703-04.
Plaintiff alleges that all Defendants engaged in a civil conspiracy to
commit fraud and violated state and federal Racketeer Influenced and Corrupt

Georgia. The contracts were still delivered in Alabama, the goods came from
Alabama, payment was received in Alabama, and ultimately, the only potential
business act committed in Georgia was execution of the F.A.S. term. This still is not
sufficient to satisfy the Due Process Clause and hale Fountainhead into court in
Georgia.
9

Plaintiff notes that Fountainhead did not address subsection (2) jurisdiction in
its motion to dismiss, reading the Complaint to allege jurisdiction solely under
subsection (1). For the reasons that follow, the Court agrees with Fountainhead that
subsection (2) does not apply here because there are insufficient allegations tying
Fountainhead to torts committed in Georgia.
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Organizations (“RICO”) Acts. (Compl., [1] Count IX, Count XI.)10 According
to Plaintiff, Day, acting as “point person” for all of the Defendants, fraudulently
misrepresented the quality of the later-shipped ICW. (Id.) The crux of the
claim is that Day, as the other Defendants’ agent, orchestrated the scheme to
defraud Plaintiff. (Id.) What is lacking for purposes of Plaintiff’s conspiracy
jurisdiction argument is an alleged connection between Fountainhead and
tortious acts committed by resident co-conspirators in Georgia.
Day is the lynchpin of Plaintiff’s conspiracy claims against Fountainhead
and the other Defendants. However, Day is not a Georgia resident. Second, it
is unclear what tortious acts, if any, Day himself committed in Georgia.11 Day’s
affidavit states that he never performed any acts in connection with this dispute
in Georgia.
The Complaint alleges that “all Defendants were engaged in a common
design and fraudulent scheme” and “all Defendants acted together.” (Compl.,

10

The Court evaluates Fountainhead’s motion to dismiss under the original
Complaint, but notes that the analysis is unchanged under the Proposed Amended
Complaint.
11

Similarly, although the Complaint alleges that Marynowski was acting as
agent for Fountainhead, it does not allege that Marynowski is a Georgia resident or
that he committed tortious acts in Georgia.
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[1] ¶¶ 217-18.) Assuming, without deciding, that all Defendants were involved
in a civil conspiracy to defraud Plaintiff, under a theory of conspiracy
jurisdiction, Plaintiff must still allege tortious acts committed in Georgia by a
resident co-conspirator. Rudo, 472 S.E.2d at 516. At most, the Complaint (and
the Proposed Amended Complaint) allege that breach of contract and breach of
warranty (under the MTDE contract) occurred in Georgia. But Plaintiff has not
identified any tort or tortious act that occurred in Georgia.
Therefore, subsection (2) of the long-arm statute does not reach
Fountainhead under a theory of conspiracy jurisdiction. Furthermore, for the
reasons stated above, exercising personal jurisdiction over Fountainhead does
not comport with traditional notions of fairness and substantial justice, and
therefore is not permitted under the Due Process Clause. Consequently,
Fountainhead’s motion to dismiss for lack of personal jurisdiction is
GRANTED.
II.

Conditional Motion to File Amended Complaint and Motions for
Judgment on the Pleadings
A.

Plaintiff’s Motion to File Amended Complaint

Plaintiff moves the Court for leave to file an amended complaint to (1)

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cure purported deficiencies in Plaintiff’s RICO allegations and (2) further detail
the relationships between and among the Defendants. (See generally, Pl.’s
Motion to Amend Br., [112-3].) Plaintiff seeks to amend only if the Court finds
that the allegations in the original Complaint are insufficient to support its
RICO claims, as some Defendants have argued in their pending motions for
judgment on the pleadings. (Pl.’s Motion to Amend, [112] at 2 of 7.)
OmniSource Defendants and MTD Defendants oppose Plaintiff’s motion to
amend on grounds that amendment would be futile. (See generally,
OmniSource Def.s’ Resp., [119], MTD Def.s’ Resp., [121].)
Under Federal Rule of Civil Procedure (“Rule”) 15(a)(2), leave to amend
should be freely given when justice so requires. FED. R. CIV. P. 15(A)(2).
However, futility of amendment is grounds for denying a motion to amend.
Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 777 n.10 (11th Cir. 2000) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). To evaluate the efficacy of
Plaintiff’s proposed amendments, the Court considers Defendants’ pending
motions for judgement on the pleadings under Plaintiff’s Proposed Amended
Complaint (“PAC”) [112-1].

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B.

Motions for Judgment on the Pleadings

Under Rule 12(c), “[a]fter the pleadings are closed – but early enough not
to delay trial – a party may move for judgment on the pleadings.” “Judgment
on the pleadings is appropriate where there are no material facts in dispute and
the moving party is entitled to judgment as a matter of law.” Palmer & Cay,
Inc. v. Marsh & McLennan Co.s, Inc., 404 F.3d 1297, 1303 (11th Cir. 2005)
(citation omitted). “All facts alleged in the complaint must be accepted as true
and viewed in the light most favorable to the nonmoving party.” Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008). A court may
grant the motion “only if the non-movant can prove no set of facts which would
allow it to prevail.” Palmer & Cay, 404 F.3d at 1303 (quotations and citation
omitted).
OmniSource Defendants and MTD Defendants (collectively, “moving
Defendants”) move for judgment on the pleadings with respect to Plaintiff’s
state and federal RICO claims. They argue that Plaintiff’s RICO claims fail for
several reasons: (1) failure to distinguish between Defendants; (2) failure to
identify specific provisions of the federal and state RICO statutes allegedly
violated; (3) failure to allege wire fraud with particularity; (4) failure to identify
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specific acts of racketeering activity committed by each Defendant; (5) failure
to sufficiently allege a pattern of racketeering activity; (6) failure to allege
sufficient facts to meet federal RICO’s continuity requirement; and (7) failure
to allege an enterprise. (OmniSource MJP Br., [80-1] at 3 of 27.)12 According
to Defendants, not all of these deficiencies are cured by the PAC and thus,
amendment of the Complaint is futile and Plaintiff’s RICO claims should be
dismissed.
Generally, “[t]o state a RICO claim, a plaintiff must plead (1) that the
defendant (2) through the commission of two or more acts (3) constituting a
‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or
maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of
which affect interstate commerce.” McCulloch v. PNC Bank, Inc., 298 F.3d
1217, 1225 (11th Cir. 2002). Plaintiff’s racketeering claims – federal and state
– are based on alleged wire fraud committed by all Defendants in violation of
18 U.S.C. § 1343. According to the Eleventh Circuit, “mail or wire fraud
occurs when a person (1) intentionally participates in a scheme to defraud

12

In their brief, MTD Defendants incorporate by reference the arguments of
OmniSource Defendants. (MTD MJP Br., [81-1] at 6 of 8.)
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another of money or property and (2) uses the mails or wires in furtherance of
that scheme.” Id. (internal quotations and citation omitted). “Under the mail
and wire fraud statutes, a plaintiff must allege a scheme to defraud wherein
some type of deceptive conduct occurred.” Id. (internal quotations and citation
omitted).
RICO claims based on alleged wire fraud are subject to Rule 9(b)’s
heightened pleading standard and must be pled with particularity. Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). To satisfy Rule
9(b)’s standard, Plaintiff must allege: (1) the precise representation(s) made; (2)
the time and place of each representation, and who made it; (3) the manner in
which the representation(s) misled Plaintiff; and (4) what the Defendants
obtained as a result of the fraud. Brooks v. Blue Cross & Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1371 (11th Cir. 1997).
In support of its RICO claims (Counts XII-XVI), Plaintiff quotes emails
from Day to Plaintiff containing alleged misrepresentations regarding the
quality of the later ICW sold to Plaintiff. (See, e.g., PAC, [112-1] ¶ 257.) The
emails were allegedly sent “on behalf of the Defendants” and, Plaintiff alleges,
“[a]t the time these representations were made to J&D, Day was acting
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individually and as agent, officer, employee and/or principal of Second Pass,
OmniSource, OmniSource SE, MTD America, MTDE, and Fountainhead.” (Id.
¶¶ 257-58.) According to Plaintiff, “[t]he resources, employees, bank accounts,
ICW and email of [all Defendants] were all used to effectuate the fraudulent
scheme.” (Id. ¶ 260.)
1.

Federal RICO Claims, 18 U.S.C. § 1962(c) and (d) (Counts
XII and XIII)

Defendants argue, among other things, that Plaintiff has failed to allege
closed-ended or open-ended continuity, which is required to show a pattern of
racketeering under federal RICO. “Essential to any successful RICO claim are
the basic requirements of establishing a RICO enterprise and a ‘pattern of
racketeering activity.’” Jackson v. Bellsouth Telecomm.s, 372 F.3d 1250, 1264
(11th Cir. 2004). “To successfully allege a pattern of racketeering activity,
plaintiffs must charge that: (1) the defendants committed two or more predicate
acts within a ten-year time span; (2) the predicate acts were related to one
another; and (3) the predicate acts demonstrated criminal conduct of a
continuing nature.” Id. (emphasis in original). “RICO’s legislative history
reveals Congress’ intent that to prove a pattern of racketeering activity a

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plaintiff . . . must show that the racketeering predicates are related, and they
amount to or pose a threat of continued criminal activity.” Id. at 1265 (quoting
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989) (emphasis in
original). “The continuity element . . . is crucial to a valid RICO claim in order
to ensure that the crime alleged is the sort of offense that RICO is designed to
address – one that is part of a pattern of ongoing, continuing criminality or that
involves criminality that promises to continue into the future.” Id.
There are two ways to allege continuity of racketeering activity: closedended and open-ended continuity. “A party alleging a RICO violation may
demonstrate continuity over a closed period by proving a series of related
predicates extending over a substantial period of time.” H.J. Inc., 492 U.S. at
241-42. Or, to show open-ended continuity, a plaintiff may allege “past
conduct that by its nature projects into the future with a threat of repetition.” Id.
In open-ended cases, “liability depends on whether the threat of continuity is
demonstrated.” Id. The Court agrees with Defendants that Plaintiff has not
alleged facts sufficient to establish closed-ended or open-ended continuity.
First, with respect to closed-ended continuity, Plaintiff has not
demonstrated that the alleged predicate acts extended over a “substantial period
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of time.”13 Reading the PAC’s allegations in a light most favorable to Plaintiff,
the first alleged act of wire fraud occurred on May 17, 2011, when Day emailed
Huang and represented that the copper recovery for OmniSource’s small and
large write was 41% and 36%, respectively. (PAC, [112-1] ¶ 257.) The last
alleged act of wire fraud occurred on February 18, 2012, when Day allegedly
misrepresented via email the quality of the Second Pass ICW. (Id.) Thus,
according to the PAC, the predicate acts upon which Plaintiff bases it RICO
claims spanned nine months.
It is true that there is no bright-line rule regarding what constitutes a
“substantial period of time” for purposes of establishing closed-ended
continuity. Jackson, 372 F.3d at 1266. However, according to the Eleventh
Circuit, “the great weight of authority suggests that nine months is a wholly
insufficient interlude.” Id. Indeed, other circuits have agreed with this circuit
that closed-ended continuity cannot be established with allegations spanning
less than a year. Id. And the period may have to be even longer where the

13

Contrary to Plaintiff’s suggestion that the length of the entire scheme (i.e.,
negotiation of the first contract to shipment of the last product) is the relevant time
line, the relevant period is the time spanned by “the specific incidents they actually
charged.” Jackson, 372 F.3d at 1266.
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RICO allegations “concern only a single scheme with a discrete goal,” like the
present case. Id. Here, the alleged scheme had a discrete goal: induce Plaintiff
to buy large quantities of non-conforming ICW after initially shipping highquality ICW. As Defendants note, the alleged scheme was completed when
Plaintiff purchased and received shipments of ICW with a significant copper
shortfall. Therefore, particularly for an alleged scheme of this nature, a ninemonth period is not sufficient to establish closed-ended continuity.
A showing of open-ended continuity requires Plaintiff to allege “either
that the alleged acts were part of the defendants’ ‘regular way of doing
business,’ or that the illegal acts threatened repetition in the future.” Id. at 1267
(quoting H.J. Inc., 492 U.S. at 242-43). Plaintiff alleges, “[u]pon information
and belief, the Defendants continue in the same line of scrap metal-related
business, have previously engaged in a pattern and practice of defrauding
customers in a similar manner . . . , and such pattern and practice is their
ongoing regular way of doing business.” (PAC, [112-1] ¶ 266.) To support this
conclusory allegation, Plaintiff alleges that “Defendants Second Pass and
OmniSource SE have previously been sued for a similar fraudulent scheme.”
(Id. ¶¶ 267-69.)
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Of course, prior suits against Second Pass and OmniSource SE have no
bearing on establishing the other Defendants’ regular way of doing business.
Plaintiff cites H.J. Inc. in support of its open-ended continuity argument. In that
case, the Supreme Court acknowledged that “proof that a RICO defendant has
been involved in multiple criminal schemes would certainly be highly relevant
to the inquiry into the continuity of the defendant’s racketeering schemes. . . .”
492 U.S. at 240 (emphasis added). However, the PAC does nothing more than
identify two complaints filed against two of the present Defendants, which
hardly constitutes “proof” of all of the Defendants’ prior involvement in similar
criminal schemes. Furthermore, as OmniSource Defendants note, these other
complaints do not allege racketeering activity or assert federal or Georgia RICO
claims, and Day – the alleged mastermind of Defendants’ fraudulent scheme –
is not even mentioned. Therefore, the relevance of the other lawsuits to this
continuity inquiry is questionable at best. Without more, Plaintiff’s conclusory
statement regarding all Defendants’ “regular way of doing business” is
insufficient to show open-ended continuity.
Furthermore, as discussed above, the alleged fraudulent scheme had a
discrete purpose. There is no alleged or logical danger of future fraud based on
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this scheme. See Ferrell v. Durbin, 311 Fed. App’x 253, 257 (11th Cir. 2009)
(“[I]t is clear that single schemes with a specific objective and a natural ending
point can almost never present a threat of continuing racketeering activity.”). In
fact, according to the PAC, the alleged scheme – to induce Plaintiff to buy large
quantities of low-quality ICW – was accomplished. Thus, again, Plaintiff has
failed to allege sufficient facts to establish open-ended continuity. Accordingly,
Defendants’ motions for judgement on the pleadings as to Count XII (18 U.S.C.
§ 1962(c)) are GRANTED.
Likewise, Plaintiff’s claim that Defendants conspired to violate § 1962(c)
fails. Count XIII, which alleges federal RICO conspiracy, contains no
additional factual allegations beyond those provided under Count XII (the
substantive federal RICO claim). Rather, Plaintiff simply states that Defendants
“conspired” to violate § 1962(c) and claims the “agreement and conspiracy are
evidenced by the conduct of the Defendants and their participation in the
fraudulent scheme.” (PAC, [112-1] ¶¶ 276-78.)
It is true that “a party may be liable for RICO conspiracy even if it is not
liable for [a] substantive RICO offense.” Jackson, 372 F.3d at 1269. However,
to establish a conspiracy, “parties must have agreed to commit an act that is
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itself illegal – parties cannot be found guilty of conspiring to commit an act that
is not itself against the law.” Id. Therefore, “[i]f the underlying cause of action
is not viable, the conspiracy claim must also fail.” Spain v. Brown &
Williamson Tobacco Corp., 363 F.3d 1183, 1199 (11th Cir. 2004).
The Court has already found that the PAC fails to state a substantive
federal RICO claim against Defendants. Therefore, Plaintiff’s federal RICO
conspiracy claim cannot stand. See Jackson, 372 F.3d at 1269 (“The district
court properly dismissed the plaintiffs’ RICO conspiracy claims precisely
because the plaintiffs failed to allege an illegal agreement to conduct acts of a
sufficiently continuous nature to constitute a patter of racketeering activity.”).
Consequently, Defendants’ motions for judgment on the pleadings are
GRANTED as to Count XIII (18 U.S.C. § 1962(d)).
2.

Georgia RICO Claims, O.C.G.A. § 16-14-4(a)-(c) (Counts
XIV, XV and XVI)

“Georgia’s RICO act, while it has similarities to the federal RICO statute,
has a number of significant differences.” Dover v. Barnes, 385 S.E.2d 417, 419
(Ga. Ct. App. 1989). Notably, unlike the federal RICO statute, Georgia does
not require a showing of continuity to demonstrate a “pattern of racketeering.”

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Id. at 421 (“[O]ur legislature intended to and did, by virtue of §§ 16-14-4(a) and
16-14-3(2), subject to the coverage of our RICO statute two crimes, included in
the statute as designated predicate acts, which are part of the same scheme,
without the added burden of showing that defendant would continue the
conduct or had been guilty of like conduct before the incident charged as a
RICO violation.”). Defendants argue, however, that Plaintiff’s state RICO
claims fail because Plaintiff has not satisfied Rule 9(b)’s heightened pleading
standard and Plaintiff has failed to properly allege an “enterprise” between the
Defendants.
First, the Court recognizes that O.C.G.A. § 16-14-4(a)14 does not require
the presence of an enterprise. Thus, this argument applies only to § 16-144(b)15 (and by extension, any claim that Defendants conspired to violate this
particular subsection). An “enterprise” is a group of persons or entities
“associated together for a common purpose of engaging in a course of conduct.”
14

Section 16-14-4(a) reads: “It is unlawful for any person, through a pattern of
racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or
indirectly, any interest in or control of any enterprise, real property, or personal
property of any nature, including money.”
15

Section 16-14-4(b) reads: “It is unlawful for any person employed by or
associated with any enterprise to conduct or participate in, directly or indirectly, such
enterprise through a pattern of racketeering activity.”
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U.S. v. Turkette, 452 U.S. 576, 583 (1981). An enterprise is proven “by
evidence of an ongoing organization, formal or informal, and by evidence that
the various associates function as a continuing unit.” Id. “The ‘enterprise’ is
not the ‘pattern of racketeering activity’; it is an entity separate and apart from
the pattern of activity in which it engages.” Id. “[A]n association-in-fact
enterprise must have at least three structural features: a purpose, relationships
among those associated with the enterprise, and longevity sufficient to permit
these associates to pursue the enterprise’s purpose.” Boyle v. U.S., 556 U.S.
938, 946 (2009). To show there is an association-in-fact enterprise at the
motion to dismiss phase, the Eleventh Circuit “has never required anything
other than a ‘loose or informal’ association of distinct entities.” Williams v.
Mohawk Indus.s, 465 F.3d 1277, 1284 (11th Cir. 2006). Further, in this circuit,
the “common purpose of making money” is sufficient for establishing a RICO
enterprise. Id. (citing U.S. v. Church, 955 F.2d 688, 698 (11th Cir. 1992)).
In addition to the existence of an enterprise, § 16-14-4(b) requires that a
defendant “conduct or participate in, directly or indirectly, such enterprise
through a pattern of racketeering activity.” Interpreting similar language in 18
U.S.C. § 1962(c), the Supreme Court concluded that this requirement is met
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when one “participate[s] in the operation or management of the enterprise
itself.” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993); accord Williams,
465 F.3d at 1285 (sufficient to allege that the defendant is “engaged in the
operation or management of the enterprise”).
In support of Plaintiff’s Georgia RICO claims, the PAC alleges: “The
association in fact of the Defendants through their participation in the
fraudulent scheme constitutes an enterprise.” (PAC, [112-1] ¶¶ 291, 313.) At
the root of Plaintiff’s case is the allegation that all Defendants were associated
through Defendant Day, and that during the course of the events described in
the PAC, Day was acting on behalf of all of the other Defendants. (See Pl.’s
Omnibus Resp. Br., [111] at 11-14 of 28.) Indeed, throughout the PAC,
Plaintiff identifies multiple instances where Day used the words “we,” “our”
and “our other facilities” when negotiating the contracts on behalf of the
different Defendants. (Id. at 13 of 28.) According to the PAC, Defendants’
common purpose was to defraud Plaintiff by misrepresenting the quality of the
later-shipped ICW. The Court finds, based on the standard in this circuit,
Plaintiff has sufficiently alleged an enterprise among Defendants and that
Defendants participated in the operation of the enterprise (by allowing Day to
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negotiate and make representations on their behalf, and by selling nonconforming ICW to Plaintiff).
Under Georgia’s RICO statute, Plaintiff must also allege a “pattern of
racketeering activity.” To demonstrate a pattern, Plaintiff must alleged that
Defendants engaged “in at least two acts of racketeering activity in furtherance
of one or more incidents, schemes, or transactions that have the same or similar
intent, results, accomplices, victims, or methods of commission or otherwise are
interrelated by distinguishing characteristics and are not isolated incidents . . . .”
O.C.G.A. § 16-14-2(8). “Racketeering activity” includes wire fraud. O.C.G.A.
§ 16-14-3(9)(A)(xxix) (incorporating any conduct defined under 18 U.S.C. §
1961(1)(A)).
In the PAC, Plaintiff has identified with specificity several alleged
fraudulent misrepresentations made by Day, via e-mail, on behalf of all of the
Defendants. (See, e.g., PAC, [112-1] ¶ 257.) According to the PAC, these
misrepresentations were made in furtherance of an intentional scheme by all
Defendants to defraud Plaintiff. Finally, with respect to its Georgia RICO
conspiracy claim, Plaintiff alleges that there was an agreement between

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Defendants to commit wire fraud against Plaintiff in violation of subsections (a)
and (b) of the state RICO statute.
Based on the allegations in the PAC, the Court finds that Plaintiff has
sufficiently stated a claim for violations of Georgia’s RICO statute and has
satisfied Rule 9(b)’s heightened pleading standard for wire fraud claims.
Therefore, Defendants’ motions for judgment on the pleadings are DENIED
with respect to Plaintiff’s Georgia RICO claims (Counts XIV, XV, and XVI).
And because amendment is not entirely futile, Plaintiff’s motion to amend the
Complaint is GRANTED.
Conclusion
Based on the foregoing, Fountainhead’s Motion to Dismiss for Lack of
Personal Jurisdiction [20] is GRANTED, Day’s Motion to Dismiss for Lack of
Personal Jurisdiction [65] is DENIED, Plaintiff’s Motion for Leave to file First
Amended Complaint [112] is GRANTED, OmniSource Defendants’ Motion
for Judgment on the Pleadings [80] is GRANTED in part and DENIED in
part, and MTD Defendants’ Motion for Judgment on the Pleadings [81] is
GRANTED in part and DENIED in part.

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SO ORDERED, this 28th day of April, 2014.

________________________________
RICHARD W. STORY
United States District Judge

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