Hawkeye Gold, LLC v. China National Materials

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2800
___________________________
Hawkeye Gold, LLC
lllllllllllllllllllllPlaintiff - Appellant
v.
China National Materials Industry Import and Export
Corporation, doing business as Sinoma
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: September 21, 2023
Filed: December 19, 2023
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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
____________
LOKEN, Circuit Judge.
Appellant Hawkeye Gold, LLC, an Iowa-based seller of livestock feed, brought
this action against China National Materials Industry Import and Export Corporation,
commonly known as Sinoma, to recover an unpaid default judgment Hawkeye Gold
obtained in a prior action against Non-Metals, Inc., Sinoma’s now-defunct wholly
owned United States subsidiary, for breach of a contract to purchase livestock feed.
After six years of contentious litigation, the district court1 dismissed Hawkeye Gold’s
Second Amended Complaint for lack of personal jurisdiction. Hawkeye Gold
appeals, raising numerous issues. We affirm.
I. Background
Hawkeye Gold markets livestock feeds, including a corn byproduct known as
dried distiller’s grain with solubles (“DDGS”). At the time in question, Non-Metals,
an Illinois or Arizona corporation based in Illinois, purchased livestock feed from
U.S. suppliers for resale to customers in China, including Sinoma, Non-Metals’
corporate parent. Sinoma is a global international “trade platform” for agricultural
and other products. It is a subsidiary of China National Materials Group Corporation,
an affiliate of the Central Government of China.
Between 2011 and 2014, Non-Metals entered into dozens of sales contracts, on
Hawkeye Gold’s Sales Contract form, in which Non-Metals purchased DDGS
livestock feed that Non-Metals then resold in China. In 2010, a new genetic trait
known as MIR162 was introduced that became part of the DDGS market worldwide,
approved by 19 countries including the United States and then under review in China.
In 2012 and 2013, Hawkeye Gold received a license from the Chinese government
approving the quality of its DDGS feed. Sinoma representatives also gave Sinoma’s
approval after inspecting Hawkeye Gold’s Iowa facilities.
In December 2013, an agency of the Chinese government announced that it was
making efforts to prevent the importation of DDGS containing the MIR162 genetic
trait. The U.S. grain industry found no objective basis for this policy and considered
it a protectionist action intended to impact high feed prices in China. With
1
The Honorable Stephen B. Jackson, Jr., United States Magistrate Judge for the
Southern District of Iowa.
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knowledge of the announcement, but considering it a trade maneuver, Sinoma
continued purchasing Hawkeye Gold DDGS from Non-Metals. On July 22, 2014,
Hawkeye Gold and Non-Metals executed another DDGS Sales Contract (“the
Contract”), in which Hawkeye Gold agreed to sell 6,000 metric tons of DDGS to
Non-Metals, to be shipped to Qingdao, China, between August 1 and September 15,
2014. The Contract names Sinoma as the consignee. Two days later, the Chinese
government, strengthening its efforts to ban MIR162, announced that DDGS
shipments into China would be rejected or destroyed unless accompanied by a U.S.
government certification that the DDGS did not contain MIR162. When Hawkeye
Gold was unable to obtain certification for 1,000 metric tons of DDGS already en
route to China under the Contract, Non-Metals refused to pay Hawkeye Gold for the
DDGS under the terms of the Contract. Hawkeye Gold diverted the DDGS to other
destinations, sold it at a substantial loss, and sued Non-Metals for breach of contract
in the Southern District of Iowa in October 2015.2
Non-Metals failed to answer Hawkeye Gold’s complaint. After the district
court entered a default, Hawkeye Gold moved for a default judgment. It considered
seeking to add Sinoma as a defendant to the contract action but decided on a later
action against Sinoma. The district court entered a default judgment holding Non-
Metals liable for $748,103.69 in contract damages and $8,089.07 in attorneys fees
2
Hawkeye Gold alleged that it diverted the DDGS at sea and sold it at a loss to
mitigate its damages. If litigated, this would be a debatable assertion. Not only did
Hawkeye Gold allow the DDGS to be shipped knowing the Government of China was
likely soon to ban importation of the MIR162 trait, it also failed to insist that Non-
Metals obtain an international commercial letter of credit, the prevailing way to
protect sellers in international export/import transactions. See Moog World Trade
Corp. v. Bancomer, S.A., 90 F.3d 1382, 1385-86 (8th Cir. 1996). Of course, Non-
Metals might have refused to provide letter-of-credit protection -- the extensive
record is silent on that question -- in which case it would be clear that Hawkeye Gold
knowingly took this substantial risk of loss in hopes of a quick profit.
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and costs. Hawkeye Gold, LLC v. Non-Metals, Inc., No. 4:15-cv-00230, 2016 WL
8290123 (S.D. Iowa Jan. 27, 2016).
In June 2016, Hawkeye Gold filed this lawsuit against Sinoma seeking to
recover its unpaid judgment for breach of contract from Sinoma as the disclosed
principal of Non-Metals, an agent acting within the scope of its actual and apparent
authority. Non-Metals was dissolved by the end of 2016 without paying Hawkeye
Gold under the default judgment. When Sinoma failed to answer this second
complaint, Hawkeye Gold moved for entry of default. The clerk entered the default
in December 2016. In February 2017, the district court granted Sinoma’s motion to
set aside the default because service of process was improper. After four more years
of disputed attempts to serve process, Sinoma answered Hawkeye Gold’s complaint
in May 2021, denying “that Non-Metals was an agent of Sinoma” and asserting lack
of personal jurisdiction as an affirmative defense because “Sinoma did not have the
minimum contact[s] with the forum state.” See Fed. R. Civ. P. 12(b)(2). Some
months later, Hawkeye Gold filed its Second Amended Complaint, which added
allegations regarding the relationship of the parties and a claim for punitive damages.
Hawkeye Gold also filed three motions to compel discovery responses and production
of requested documents, which the district court granted in part and denied in part.
In February 2022, Sinoma moved to dismiss Hawkeye Gold’s Second
Amended Complaint, arguing as relevant here that the district court lacked personal
jurisdiction. Hawkeye Gold resisted the motion, supporting its resistance with
declarations, deposition testimony, exhibits, and a report from an expert on Chinese
law. With that motion pending, Hawkeye Gold moved for sanctions under Rule 37
based on Sinoma’s alleged discovery violations, seeking an order “that Sinoma is
liable as principal for the acts of its agent, Non-Metals,” and prohibiting Sinoma from
“introducing evidence opposing Hawkeye Gold’s contention that Non-Metals is an
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agent or mere instrumentality of Sinoma.”3 The district court entered an order
denying that motion on July 12, 2022. Two weeks later, the court entered an order
dismissing Hawkeye Gold’s Second Amended Complaint “[b]ecause this Court lacks
personal jurisdiction over defendant.” Hawkeye Gold appeals the dismissal order.
On appeal, Hawkeye Gold argues that the district court erred in dismissing the
Second Amended Complaint because (i) Sinoma waived its lack of personal
jurisdiction defense; (ii) Sinoma is a party to the Contract and therefore bound by the
contractual provision submitting to the exclusive jurisdiction of any court sitting in
Des Moines, Iowa; (iii) evidence of agency and mere instrumentality supports
personal jurisdiction; (iv) Sinoma has the minimum contacts required for specific
personal jurisdiction; and (v) the district court erred in denying Rule 37 relief
precluding Sinoma from raising a personal jurisdiction defense.
II. Discussion
A. Waiver. Federal Rule 12(h)(1)(A) provides that a party waives a personal
jurisdiction defense by “omitting it from a motion in the circumstances described in
Rule 12(g)(2).” Rule 12(g)(2) provides: “[A] party that makes a motion under this
rule must not make another motion under this rule raising a defense or objection that
was available to the party but omitted from its earlier motion” (emphasis added).
Relying on out-of-circuit decisions, Hawkeye Gold argues that Sinoma waived its
right to contest personal jurisdiction by failing to raise this defense in its first motion
to the district court, the motion to set aside the default entered by the Clerk of Court.
3
In other words, Hawkeye Gold sought as a discovery sanction an order
rejecting Sinoma’s jurisdictional defense. See Insurance Corp. of Ireland, LTD v.
Compagnie des Bauxites de Guiner, 456 U.S. 694, 707-09 (1982).
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We have never held that a party waives potential Rule 12(b) defenses by failing
to include them in a motion to set aside a default.4 The argument is contrary to the
plain language of Rule 12(g)(2), which expressly limits its application to motions
made after prior motions “made under this rule,” meaning Rule 12 motions. Rule 55
governs default procedures. Rule 55(a) provides that the Clerk is required to enter
a default against a party who fails to plead or defend once that failure is shown.
When a default is entered, Rule 55(c) provides that it can be set aside upon a showing
of good cause. A motion under Rule 55(c) is not a motion under Rule 12, nor does
Rule 55 require a party to present defenses in seeking to set aside a default. It says
nothing about defenses being waived if not raised. Thus, a Rule 55(c) motion to set
aside a default does not trigger the waiver provisions of Rules 12(g)(2) and 12(h).
Rule 55(c) also provides that the court “may set aside a final default judgment
under Rule 60(b)” (emphasis added). Most of the cases from other circuits on which
Hawkeye Gold relies involved prior attacks on final default judgments. We express
no view on that issue. We simply conclude that Sinoma’s motion to set aside the
default was not a Rule 12 motion, and therefore Sinoma preserved its personal
jurisdiction defense by raising it in answers to Hawkeye Gold’s complaints filed after
the default was set aside for improper service.
B. Personal Jurisdiction -- Threshold Procedural Issues. “We review
questions of personal jurisdiction de novo.” Whaley v. Esebag, 946 F.3d 447, 451
(8th Cir. 2020). The burden of proof is on a plaintiff seeking to establish the district
court’s jurisdiction; this burden does not shift because the defendant challenges
jurisdiction. Gould v. P.T. Krakatau Steel, 957 F.2d 573, 575 (8th Cir. 1992).
However, Rule 12(b)(2) requires the defendant to assert a lack of personal jurisdiction
4
Hawkeye Gold cites Nationwide Eng’g & Control Systems, Inc. v. Thomas,
837 F.2d 345 (8th Cir. 1988), to support its waiver argument, but that case concerned
waiver of defenses in state court prior to removal, not waiver under the federal rules.
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defense in its responsive pleading or by motion “before pleading.” Thus, to survive
a timely motion to dismiss for lack of personal jurisdiction, the plaintiff need only
“make a prima facie showing that personal jurisdiction exists” by pleading “sufficient
facts to support a reasonable inference that the defendant can be subjected to
jurisdiction within the state,” which may be shown by submitting “affidavits and
exhibits supporting or opposing the motion.” K-V Pharm.Co. v. J. Uriach & CIA,
S.A., 648 F.3d 588, 591-92 (8th Cir. 2011) (quotations omitted). Because a prima
facie showing is less onerous than meeting the burden to prove jurisdiction, we have
repeatedly said that, “[w]here no hearing is held [on the motion to dismiss for lack of
personal jurisdiction], we must view the evidence in the light most favorable to the
plaintiff and resolve factual conflicts in the plaintiff’s favor.” Fastpath, Inc. v. Arbela
Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014).
Hawkeye Gold argues the district court failed to follow this “minimal” standard
for a threshold showing. But the question is not so simple, precisely because personal
jurisdiction is a “threshold” issue in the litigation, and resolving the issue is not
confined to the pleadings, as are prima facie requirements in other contexts.
“Ultimately . . . a plaintiff must establish facts supporting jurisdiction over the
defendant by a preponderance of the evidence . . . . either at trial or at a pretrial
evidentiary hearing.” Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016)
(citations omitted). But the court noted, citing Fed. R. Civ. P. 43(c), that not all
evidentiary hearings involve evidence taken orally in open court:
As with many pretrial motions, a court has broad discretion to
determine the procedure that it will follow in resolving a Rule 12(b)(2)
motion. If the court deems it necessary or appropriate, or if the parties
so request, it may conduct a hearing and receive, or not, live testimony.
It may also consider jurisdictional evidence in the form of depositions,
interrogatory answers, admissions, or other appropriate forms. But we
see no reason to impose on a district court the hard and fast rule that it
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must automatically assemble attorneys and witnesses when doing so
would ultimately serve no meaningful purpose. . . .
At bottom, a district court properly carries out its role of disposing of
a pretrial motion under Rule 12(b)(2) by applying procedures that
provide the parties with a fair opportunity to present the court the
relevant facts and their legal arguments before it rules on the motion.
Id. at 268-69 (emphasis added). The court in Grayson concluded that, if a district
court conducts a hearing limited in this fashion, it may find by a preponderance of
the evidence that it lacks personal jurisdiction. Id., followed in Sneha Media &
Enter., LLC v. Assoc. Broadcating Co. P LTD, 911 F.3d 192, 197 (4th Cir. 2018).
We agree. In our view this is not inconsistent with our prior panel opinions.
In this case, the district court noted at the start of its lengthy dismissal order
that it “considers the motion to be fully submitted. Oral argument by counsel has not
been requested and is not necessary.” After reviewing in detail Hawkeye Gold’s
extensive pleadings, and the massive evidentiary submissions and legal arguments
made by both parties, the court stated that it “has viewed the evidentiary materials
presented by the parties in a light most favorable to Hawkeye Gold. In the opinion
of the Court, Hawkeye Gold has not sufficiently met its burden of making a prima
facie showing of personal jurisdiction over Sinoma.”
On appeal, Hawkeye Gold complains that the court did not properly view the
evidentiary materials in the light most favorable to a plaintiff resisting a Rule 12(b)(2)
motion to dismiss. But Hawkeye Gold did not move for reconsideration of the
dismissal order and request an evidentiary hearing or additional jurisdictional
discovery. Four months earlier, in the Conclusion to its memorandum opposing
Sinoma’s motion to dismiss, Hawkeye Gold had urged denial and alternatively
requested “discovery to resolve the jurisdictional dispute and . . . a hearing to the
extent necessary.” Sinoma then produced extensive discovery materials in response
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to the court’s order granting in part Hawkeye Gold’s motions to compel. When the
court denied Hawkeye Gold’s motion for a Rule 37 sanctions order that would resolve
the jurisdiction issue, two weeks before its dismissal order, Hawkeye Gold was on
notice the court considered the record adequate to decide the Rule 12(b)(2) issue. If
Hawkeye Gold considered the record inadequate, it should have renewed its request
for a hearing or further discovery, or moved for reconsideration of the dismissal order
on this ground. Applying the procedural framework of Grayson v. Anderson, we
consider the record sufficient to require Hawkeye Gold to establish personal
jurisdiction by a preponderance of the evidence. We will conduct our de novo review
of the dismissal order accordingly.
C. Personal Jurisdiction -- Merits Issues. The Due Process Clause of the
Fourteenth Amendment limits the authority of courts in this country to exercise
personal jurisdiction over an out-of-state defendant. Daimler AG v. Bauman, 571
U.S. 117, 126 (2014), citing International Shoe Co. v. Washington, 326 U.S. 310(1945). “Due process requires that the defendant purposefully establish ‘minimum
contacts’ in the forum state such that asserting personal jurisdiction and maintaining
the lawsuit against the defendant does not offend ‘traditional conceptions of fair play
and substantial justice.’” K-V Pharm. Co., 648 F.3d at 592 (quotation omitted). The
defendant must purposefully avail itself “of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). We analyze five factors
and the totality of the circumstances in assessing minimum contacts: “(1) the nature
and quality of [defendant's] contacts with the forum state; (2) the quantity of such
contacts; (3) the relation of the cause of action to the contacts; (4) the interest of the
forum state in providing a forum for its residents; and (5) convenience of the parties.”
Kaliannan v. Liang, 2 F.4th 727, 733 (8th Cir. 2021), cert. denied, 142 S. Ct. 758
(2022). The first three factors are primary and carry more weight. Id.-9-
Personal jurisdiction may be established by general jurisdiction, in which case
the forum state has power to adjudicate any cause of action involving a particular
defendant, or by specific jurisdiction, which “requires that the cause of action arise
from or relate to a defendant’s actions within the forum state,” the third of the five
due process factors. Wells Dairy, Inc. v. Food Movers Int’l, Inc., 607 F.3d 515, 518
(8th Cir.), cert. denied, 562 U.S. 962 (2010). For the district court to exercise specific
personal jurisdiction over Sinoma, Hawkeye Gold must show that jurisdiction is both
authorized by Iowa’s long-arm statute and permitted by the Due Process Clause.
Fastpath, 760 F.3d at 820. In this case, Hawkeye Gold argues only that Sinoma is
subject to specific jurisdiction in Iowa, so we need not address general personal
jurisdiction. The Supreme Court of Iowa has interpreted its long-arm statute and
rules to extend as far as due process allows, so our focus is on whether the district
court’s exercise of personal jurisdiction over Sinoma would comport with due
process. See Hammond v. Fla. Asset Fin. Corp., 695 N.W.2d 1, 5 (Iowa 2005).
To establish specific personal jurisdiction, the defendant’s contacts with the
forum State “must be based on ‘some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws.’” Creative Calling Solutions, Inc. v. LF
Beauty Ltd., 799 F.3d 975, 980 (8th Cir. 2015), quoting Burger King, 471 U.S. at
474-75. For contractual claims, an out-of-state defendant’s contract with a citizen of
Iowa is insufficient. Whether defendant “purposefully established minimum
contacts” requires evaluation of “prior negotiations and contemplated future
consequences, along with the terms of the contract and the parties’ actual course of
dealing.” Id. (quotation omitted). When the contract is between an Iowa exporter and
the United States subsidiary of a foreign importer, this analysis is complex.
In resisting Sinoma’s motion to dismiss, Hawkeye Gold argued to the district
court that Sinoma’s direct contacts with Iowa were sufficient to establish specific
personal jurisdiction. It further argued that personal jurisdiction is properly asserted
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because Non-Metals was acting as Sinoma’s agent or alter-ego, citing allegations in
the Second Amended Complaint that, “construed in favor of Hawkeye Gold, are
sufficient for notice pleading of these claims.” In reply to the agency claim, Sinoma
argued Hawkeye Gold presented no evidence supporting a theory of piercing the
corporate veil to establish personal jurisdiction. In its sur-reply, Hawkeye Gold
argued that “evidence that multiple Sinoma employees traveled to Iowa to meet with
Hawkeye Gold in connection with DDGS, and that [Jason] Mao -- one of the Sinoma
employees who traveled to Iowa -- was a Sinoma employee at the time he negotiated
and executed the contract, is more than enough to satisfy Hawkeye Gold’s burden.”
The district court rejected this contention:
To begin, the sales contract between Hawkeye Gold and Non-
Metals is not a sufficient contact with Iowa to support personal
jurisdiction over Sinoma. Foremost, Sinoma was not a party to the
contract. Even when the dispute as to the role and employment of Jason
Mao is viewed in favor of Hawkeye Gold, it remains as fact Sinoma was
not a party to the contract.
1. Was Sinoma a Party to the Contract?5 The Second Amended Complaint
acknowledged that “[t]he Contract does not specifically name or identify Sinoma as
the principal,” but alleged that “Non-Metals executed the Contract while acting
within the scope of its actual authority as an agent for its principal, Sinoma, binding
Sinoma to the Contract.” Being bound by a contract is of course not the same as
being a named party to the contract. The district court concluded that the Contract
5
The Contract includes a “Consent to Jurisdiction” provision in which each
party “irrevocably submits to the exclusive jurisdiction of any United States or Iowa
District Court sitting in Des Moines.” “Due process is satisfied when a defendant
consents to personal jurisdiction by entering into a contract that contains a valid
forum selection clause.” Dominium Austin Partners, L.L.C. v. Emerson, 248 F.3d
720, 726 (8th Cir. 2001). Thus, Sinoma being a party to the contract is crucial if there
is no other basis for specific personal jurisdiction.
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by itself was not a sufficient contact to establish specific personal jurisdiction
primarily because “Sinoma was not a party to the contract.” On appeal, Hawkeye
Gold argues that, because Non-Metals was acting as the agent of Sinoma, a disclosed
principal, when it entered in the Contract, the district court erred in not finding that
Sinoma is a party to the sales Contract despite only being named consignee and not
signing the contract. This argument was not clearly made to the district court, nor
did Hawkeye Gold move for reconsideration of the dismissal order on this ground.6
Under Iowa law, “an agency relationship exists when there is (1) ‘manifestation
of consent by one person, the principal, that another, the agent, shall act on the
former's behalf and subject to the former's control,’ and (2) ‘consent by the latter to
so act.’” Vroegh v. Iowa Dep’t of Corrections, 972 N.W.2d 686, 707 (Iowa 2022)
(emphasis added). For example, in Kanzmeier v. McCoppin, where a cattle buyer’s
agent testified that he “act[ed] as an agent for the man that is getting the cattle,”
receiving only a commission from the sale proceeds, the Court held this was
sufficient evidence of a contract between the buyer and seller because “the order
buyer acted on behalf of the plaintiff and was subject to his control and consent with
regard to the purchase of the steers.” 398 N.W.2d 826, 830 (Iowa 1987).
Personal jurisdiction was not at issue in Kanzmeier, and the agent was not a
party to the contract at issue, as Non-Metals is in this case. Hawkeye Gold has cited
no Iowa case even suggesting that, when a purchase contract is between a foreign
buyer’s United States agent and an Iowa seller, the foreign buyer becomes a party to
the contract and is therefore subject to specific personal jurisdiction in Iowa because
6
The reason may be that an agent acting for a disclosed principal is not liable
as a contracting party. See Rowe v. State Tax Comm’n of Iowa, 91 N.W.2d 548, 554-
55 (Iowa 1958). Thus, Hawkeye Gold’s decision to sue Non-Metals for failure to pay
under the Contract was inconsistent with this new claim on appeal. Perhaps we
would need to vacate the default judgment if we upheld the claim that Sinoma was
a party to the contract. We need not consider this issue.
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the buyer, named as consignee of the goods to be shipped, was a disclosed principal,
even if the agent was not subject to the principal’s control. This is not Iowa law, nor
is it consistent with Eighth Circuit precedent:
Our cases consistently have insisted that “personal jurisdiction can be
based on the activities of [a] nonresident corporation’s in-state
subsidiary . . . only if the parent so controlled and dominated the affairs
of the subsidiary that the latter’s corporate existence was disregarded so
as to cause the residential corporation to act as the nonresidential
corporate defendant’s alter ego.”
Viasystems, Inc. v. EBM-Papst St. Georgen GMBH, 646 F.3d 589, 596 (8th Cir.
2011), quoting Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 648-49 (8th Cir.
2003).
It is common for foreign importers to use U.S. subsidiaries or purchasing
agents in effecting international export/import transactions, in part because both the
United States seller and the foreign buyer “fears [breach of contract] litigation in the
other party’s ‘home court.’” Moog, 90 F.3d at 1385. Adopting Hawkeye Gold’s
unprecedented contention -- that the purchase of Iowa agricultural products by such
an agent without more makes the foreign buyer a party to a breach-of-contract action
and therefore subject to the jurisdiction of Iowa courts -- could have a disastrous
impact on this important part of Iowa’s economy. Foreign buyers will simply
purchase agricultural products from U.S. sellers in another State or from sellers in a
foreign country that does not impose this potentially significant cost. Avoiding
unfavorable dispute resolution requirements -- a form of non-tariff barrier -- is a
significant part of international economic competition. Therefore, we conclude the
Supreme Court of Iowa would not adopt this contention. Moreover, even if
consistent with Iowa law, the contention does not satisfy governing due process
standards. A foreign corporation with no other minimum contacts with Iowa does not
“reasonably anticipate being haled into court there” when it receives goods shipped
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abroad by its U.S. subsidiary but was not a named party in the purchase agreement.
As the Supreme Court has repeatedly cautioned, “[g]reat care and reserve should be
exercised when extending our notions of personal jurisdiction into the international
field.” Asahi Metal Ind. Co. v. Superior Court of Cal., 480 U.S. 102, 115 (1987)
(quotation omitted); see Falkirk Min. Co. v. Japan Steel Works, Ltd., 906 F.2d 369,
376 (8th Cir. 1990).
Hawkeye Gold also argues that Sinoma is judicially estopped to argue it was
not a party to the Contract because Sinoma admitted Non-Metals was its agent in its
motion to set aside the first default. This contention is without merit. “Whenever a
party takes a position in a legal proceeding and succeeds in maintaining that position,
the doctrine of judicial estoppel operates to prevent that party from later assuming a
contrary position.” Gustafson v. Bi-State Dev. Agency of Missouri-Illinois Metro.
Dist., 29 F.4th 406, 410 (8th Cir. 2022). In arguing to set aside the default, Sinoma’s
counsel summarized allegations in Hawkeye Gold’s Complaint that a principal-agent
relationship existed between Sinoma and Non-Metals and argued that, even if true,
service of process on Sinoma was not effective because Non-Metals was not its
general agent. This was not an admission that Non-Metals was Sinoma’s agent when
entering into the Contract with Hawkeye Gold. Judicial estoppel does not apply.
2. Was Non-Metals the Alter-Ego or Mere Instrumentality of Sinoma?
Iowa law recognizes a corporate subsidiary’s separate corporate identity but “under
exceptional circumstances” will disregard a subsidiary’s separate identity -- i.e.,
pierce the corporate veil -- “where doing so would prevent the parent from
perpetuating a fraud or injustice, evading just responsibility or defeating public
convenience.” Briggs Transp. Co., Inc. v. Starr Sales Co., Inc., 262 N.W.2d 805,
809-10 (Iowa 1978). Applying that principle, we have held that personal jurisdiction
may be based on the activities of a nonresident’s in-state subsidiary “if the parent so
controlled and dominated the affairs of the subsidiary that the latter’s corporate
existence was disregarded.” Epps, 327 F.3d at 649. Hawkeye Gold argues that Non-
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Metals was Sinoma’s alter-ego; therefore, the corporate veil can be pierced and Non-
Metals’ contacts in Iowa attributed to its parent, Sinoma.
Based on the extensive Rule 12(b)(2) record, the district court rejected this
contention:
Hawkeye Gold has not presented factual evidence showing Sinoma
controlled and dominated the affairs of Non-Metals to the extent Non-
Metals was acting as Sinoma’s alter ego. . . . Instead, the evidence shows
Sinoma as a parent company in China was buying product from a wholly
owned subsidiary in the United States which had contracted with an
Iowa company to obtain the product. Such circumstances do not equate
to an alter-ego relationship.
On appeal, Hawkeye Gold argues that substantial evidence shows Non-Metals was
“merely a buying office,” did not have significant assets, had managers employed
only by Sinoma, and allegedly obeyed Sinoma’s directive to stop paying Hawkeye
Gold. Sinoma responds that Non-Metals maintained a separate business; it sold to
many customers in addition to Sinoma and marked up prices to generate profits on
products sold to Sinoma. After de novo review of the record, we conclude that
Hawkeye Gold failed to prove by a preponderance of the evidence that the district
court has specific personal jurisdiction because of “exceptional circumstances” that
permit the court to disregard subsidiary Non-Metals’ separate identity under Iowa
law.
3. Did Sinoma Itself Have Sufficient Minimum Contacts? It is undisputed
that Sinoma is registered and incorporated in China, with a principal place of business
in Beijing; does not lease or own property in Iowa; does not sell or advertise products
in Iowa; does not hold assets or accounts in Iowa; and does not maintain a registered
agent or license to do business in Iowa. At the time in question, Sinoma owned Non-
Metals, a United States subsidiary based in Illinois that regularly purchased DDGS
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from Hawkeye Gold in Iowa that was then shipped to consignee Sinoma in China.
Hawkeye Gold seeks to recover from Sinoma an unpaid default judgment entered in
Hawkeye Gold’s prior breach of contract action against Non-Metals, an action in
which Hawkeye Gold elected not to join Sinoma as an additional party defendant.
As we have explained, we reject Hawkeye Gold’s contention that Sinoma was
a party to the Contract, so personal jurisdiction may not be based on the “Consent to
Jurisdiction” provision in the Contract. In addition, Hawkeye Gold has failed to show
that Sinoma is responsible for Non-Metals’s breach of contract because Non-Metals
was an alter-ego whose separate corporate identity may be disregarded under Iowa
law. So on what other basis may specific personal jurisdiction over Sinoma be
exercised? Hawkeye Gold argues that Sinoma had sufficient minimum contacts to
the transaction to establish specific personal jurisdiction -- it twice sent Sinoma
employees to Hawkeye Gold’s Iowa facility to ensure that Hawkeye Gold’s DDGS
met Sinoma’s standards; Jason Mao, who was a Sinoma “Senior Business Manager”
from December 10, 2012 to December 9, 2015, negotiated the Contract between
Hawkeye Gold and Non-Metals; in January 2014, bypassing direct seller Non-Metals,
Sinoma requested $20,000 compensation for defective DDGS purchased from
Hawkeye Gold; Sinoma allegedly directed Non-Metals not to pay Hawkeye Gold’s
contract damages when the DDGS was diverted; and Sinoma representatives visited
Hawkeye Gold in 2015 to resolve Hawkeye Gold’s dispute with Non-Metals.
“For contractual claims, personal jurisdiction is proper where the defendant
reach[es] out beyond one state and create[s] continuing relationships and obligations
with citizens of another state.” Creative Calling, 799 F.3d at 980, quoting Burger
King, 471 U.S. at 473. Here, the district court noted, “[t]he evidentiary materials
presented to this Court fall short of showing Sinoma, as opposed to its United States
subsidiary Non-Metals, reached out and created continuing relationships and
obligations within Iowa.” The question is whether Sinoma reached out and created
relationships within Iowa. As Sinoma was not a party to the Contract, and Non-
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Metals was not its alter-ego, the answer is clearly no. The only relationships created
in Iowa was an ongoing course of dealing between Non-Metals and Hawkeye Gold
to send products out of Iowa. This relationship had no continuing impact on the
forum State and its citizens, other than providing a forum to resolve a specific
contract dispute between Hawkeye Gold and a party over which specific personal
jurisdiction may be exercised with regard to that transaction, here, Non-Metals.
Moreover, stripped of Hawkeye Gold’s agency theories of liability, this lawsuit is not
a claim based on Sinoma’s breach of a contract with Hawkeye Gold. It is a claim for
refusing to pay a default judgment entered against its separate, now-defunct U.S.
subsidiary. Thus, there is no relation between Sinoma’s alleged minimum contacts
and the cause of action asserted in this action,7 the essential third due process factor
that Hawkeye Gold must prove by a preponderance of the evidence to establish
specific personal jurisdiction. See, e.g., Wells Dairy, 607 F.3d at 518. The district
court properly rejected this theory of specific personal jurisdiction over Sinoma.
D. The Denial of Rule 37 Relief. Hawkeye Gold argues the district court
abused its discretion in denying its motion for an order establishing that “Sinoma is
liable as principal for the acts of its agent, Non-Metals” and barring Sinoma from
introducing evidence contesting Hawkeye Gold’s “contention that Non-Metals is an
agent or mere instrumentality of Sinoma,” as sanctions for Sinoma’s alleged
discovery failures. See Fed. R. Civ. P. 37(b)(2)(A). In denying this relief, the district
court properly noted that it has “wide latitude in imposing sanctions” for discovery
violations, but its “discretion narrows as the severity of the sanction or remedy it
elects increases.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008). Here,
whether Sinoma is liable as principal for the acts of its agent, Non-Metals, “is a key
7
As the district court noted, that Sinoma representatives visited Hawkeye Gold
in 2015 to resolve Hawkeye Gold’s dispute with Non-Metals “fails to support
personal jurisdiction over Sinoma.” See Digi-Tel Holdings, Inc. v. Proteq
Telecomms. (PTE), Ltd., 89 F.3d 519, 524 (8th Cir. 1996).
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central determination in this case, encompassing both factual matters and legal
principles on which the parties have firm divergent views.” Without “excus[ing
Sinoma’s] failure to obey its orders or to fully respond to discovery requests,” the
court concluded that “the record before the Court does not sufficiently establish
conduct by Sinoma which warrants the relief sought.” Our review of the record
strongly supports this conclusion. Our review of Rule 37 sanctions is deferential, but
when the sanction imposed is “tantamount to a dismissal of [the imposing party’s]
claims,” the district court should “consider[] the possibility of lesser sanctions,” such
as granting a continuance or imposing monetary sanctions relating to discovery abuse.
Heartland Bank v. Heartland Home Fin., Inc. 335 F.3d 810, 817 (8th Cir. 2003).
Here, lesser sanctions were clearly available, yet Hawkeye Gold requested a sanction
eliminating Sinoma’s personal jurisdiction defense, which we have now upheld on
the merits. There was no abuse of the district court’s discretion in denying this Rule
37 sanction relief.
The judgment of the district court is affirmed.
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