                               UNPUBLISHED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Affirmed by unpublished opinion.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                 the
opinion, in which Judge Niemeyer and Judge Keenan joined.


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Unpublished opinions are not binding precedent in this circuit.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    Data      Corporation    (“Loren   Data”)    filed    a

complaint    against    GXS,    Inc.   (“GXS”)   alleging    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     business    information   such   as   invoices     and

purchase orders.       EDI messages travel over secure, private data

networks called Value Added Networks (“Networks”).            Both GXS and

Loren Data operate such Networks.            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     transfer     business          information           in   two       ways,

referred     to     in     the    industry          as     a       non-settlement              peer

interconnect      (“peer    interconnect”)           and       a    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      mailbox     is      cumbersome,              inefficient,           and

expensive.     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   obtain         a    peer     interconnect

from GXS span the last decade.                  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.                  When Loren Data

did    not   pay   the   overdue   fees,     GXS   terminated   the    commercial

mailbox.       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.                    Despite the

fact    that    Loren    Data   could   only   offer   Covisint   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.                This letter, attached




       1
       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      Loren    Data’s

business model as a “service bureau.”                       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    also      expressed      concern      that     providing      a   peer

interconnect        to    Loren      Data   would       result    in    service     quality

problems.        GXS stated that the core of Loren Data’s business

model   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       service    latency,

availability, and overall service quality.”                            The September 3,

2010    letter      stated      that    GXS’s      current       Network    interconnect

agreements expressly prohibit daisy chaining.



                                              5
            The amended complaint alleges that both GXS and Loren

Data have peer interconnect agreements with all of the 36 other

EDI    Networks.        Regardless,       Loren    Data         alleges      that   peer

interconnect       access    to   the      GXS    Network        is    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    dismiss   the   complaint      pursuant     to   Federal        Rule    of    Civil

Procedure 12(b)(6).          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     plausible        essential           facilities     claim    or    that   the

alleged          refusal       to    deal     constituted           unlawful     exclusionary

conduct.              The    district       court       also    held    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).                                In those motions,

Loren       Data      sought      clarification           as   to   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      granting       dismissal      under    Rule     12(b)(6)    is

reviewed de novo.                 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    Bell   Atlantic        Corp.    v.     Twombly,      550    U.S.          544    (2007),

articulated a two-pronged approach to assessing the sufficiency

of a complaint.           Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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

cause.”      Twombly, 550 U.S. at 555.                   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      face.’”            Iqbal,        556        U.S.       at    678

(quoting Twombly, 550 U.S. at 557).                   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     the      context        of   an      agreement          to        restrain

trade,    Twombly     teaches        that    a   court    may    not       simply       credit

conclusory allegations of conspiracy.                    550 U.S. at 555.              Rather,

the    court      must      determine       whether      the     well-pleaded,             non-

conclusory        factual     allegations        give     rise        to    a     “plausible

suggestion of conspiracy.”                  Id. at 565-66.             As the district

                                             8
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.”                15 U.S.C. § 1.            To establish a

Section   1      violation,    a    plaintiff      must   prove,      and    therefore

plead, “(1) a contract, combination, or conspiracy; (2) that

imposed     an     unreasonable     restraint        of   trade.”          Dickson   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     of    trade.’”        Am.    Needle,    Inc.    v.     Nat’l    Football

League,   130      S. Ct.   2201,    2208       (2010).      The    term    “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     (internal      citations        omitted).             The       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

operations.”        Id.

              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    their

competing interests (by way of profit maximizing choices).”                               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

as it does so independently.”                 Laurel Sand & Gravel, Inc. v. CSX

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          activity     led      to        an     agreement        to      restrain

trade.        See    Twombly,    550    U.S.       at    556.       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        are      often    tacit          or    unwritten        in     an

effort     to    escape     detection,          thus    necessitating            resort        to

circumstantial        evidence      to    suggest        that      an     agreement           took

place.”         Robertson,     679       F.3d     at    289-90.            There        are     no

allegations      in    this   case       suggestive          of    such       circumstantial

evidence    of    conspiracy.            Rather,       Loren      Data    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.                           Loren Data reads

the    daisy     chaining     ban    contained          in     the      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.”                  Id. at 593 (citing Monsanto

                                           11
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).         The    evidence       must    tend   to    exclude       the

possibility         that         the     alleged            co-conspirators             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     Data      with    a     full

examination of the terms of that letter.                          When read in its

entirety,    the       letter    explains    that      Loren     Data’s     daisy       chain

business    model       raises    service     quality         concerns     for    the    GXS

                                            12
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       with     all    of   these     allegedly     boycotting

Networks.        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     cannot    plausibly       be   read   as   evidence   of

concerted action.         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    order       to   avoid     termination.”).          Given    the    facts

alleged     in     the       amended     complaint,     the    conspiracy     posited     by

Loren Data simply makes no practical or economic sense.                                  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      make       it   illegal      to    “monopolize,     or     attempt    to

monopolize,        or    combine        or   conspire   with    any   other    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.                    United States v. Grinnell Corp.,

384    U.S.       563,    570-571     (1966);      Verizon      Commc’ns   Inc.      v.   Law

Offices      of    Curtis      V.   Trinko,      LLP,     540   U.S.   398,    407   (2004)

(“Trinko”).              The   Supreme      Court       in   Trinko    noted    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      anticompetitive         conduct


       3
       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      competition,       rather          than     to     an     individual

competitor.        Spanish Broad. Sys. of Fla., Inc. v. Clear Channel

Commc’ns,     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

more, state a claim under the federal antitrust laws.”                                 Brooke

Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209,

225 (1993).        “The [Act] directs itself not against conduct which

is   competitive,      even    severely       so,    but    against          conduct   which

unfairly tends to destroy competition itself.”                          Spectrum Sports

Inc. v. McQuillan, 506 U.S. 447, 458 (1993).                          “That is, it must

harm the competitive process and thereby harm consumers.                                  In

contrast,      harm      to     one     or        more     competitors          will     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    [a]    trader    or     manufacturer        engaged       in    an   entirely

private      business,       freely    to     exercise          his    own     independent

                                             16
discretion as to parties with whom he will deal.”                       United States

v.   Colgate     &     Co.,    250    U.S.    300,    307   (1919).     Nevertheless,

“[t]he high value that we have placed on the right to refuse to

deal     with    other        firms    does    not     mean   that     the    right     is

unqualified.”          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

firm.”     Id.         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.               GXS has not refused to deal with Loren

Data.     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       business

justifications for the terms it offers Loren Data.                              Cf. Laurel

Sand   &     Gravel,    924    F.2d     at    544   (noting      that    anticompetitive

exclusionary conduct may be shown if “there was no legitimate

business reason for its conduct.”).                      Plainly, as GXS explains in

its    September        3,    2010      letter,       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.           GXS    granted       peer    interconnects       to   every   other

Network,      large     or    small,        and    the     district     court    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.                    Further, even though Loren Data

was    not    able     to    obtain     a    peer    interconnect        with    GXS,   its

                                              18
allegations         acknowledge        that    more       than    half    of   its     business

traveled       on    the     GXS       Network.           Simply    put,       Loren     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    to    allege       a   plausible         claim     of    exclusionary         conduct

directed to competition as a whole.



                                              ii.

               Loren Data also alleges that the GXS Network is an

essential      facility,         the    denial       of    access    to    which       violates

Section 2.           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,       we

considered such a claim in Laurel Sand & Gravel.                                924 F.2d at

544.



                                               19
              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           terms.”        MCI

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

another market.”          Advanced Health-Care Servs., Inc. v. Radford

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        facility;       (2)    the    inability       of    the    competitor

seeking       access     to    practically          or    reasonably       duplicate      the

facility; (3) the denial of the facility to the competitor; and

(4)     the     feasibility        of        the    monopolist        to     provide      the

facility.”       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.          Moreover,       terms     are   not

                                               20
unreasonable       simply    because     they    will     reduce     a    competitor's

profits.     Id.

             The   amended     complaint        does    not    sufficiently          allege

that GXS is an essential facility.                     First, Loren Data cannot

plausibly     maintain       that   a    peer        interconnect        with    GXS     is

essential.         Although     Loren         Data     complains     that       GXS     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     business    traversed        the     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      access   to   the   GXS    Network        it    now     claims     is

essential.       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.                        To state a

claim      for    attempted     monopolization,         a        plaintiff         must

demonstrate: (1) a specific intent to monopolize the relevant

market; (2) predatory or anticompetitive acts in furtherance of

the     intent;      and      (3)     a     dangerous            probability         of

success.     Spectrum Sports, Inc., 506 U.S. at 456.                    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.                       Nor does Loren Data allege a

dangerous         probability      of     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      probability         of   achieving      monopoly      power.      However,

in   M   &    M    Medical,     we      held    that    “[o]ther       factors   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.                        Inconsistent with Loren

Data’s       theory    is    its     allegation        that    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    district       court

erred in denying its post-judgment motions.                        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)    motion       under    the

deferential abuse of discretion standard.                        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.            First, Loren Data had already amended

the    complaint    once      before,   suggesting       that      further    amendment

would    be    futile.        Second,    Loren       Data     provided      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
