SMITH, Circuit Judge.
Eagle Technology, Inc. ("Eagle") and its sole owner, Willem F. Bakker, brought suit against Expander Americas, Inc. ("Expander Americas") and its parent company, Expander System Global, AB ("Expander Global"), after each company terminated contracts with Eagle and Bakker respectively. As to Expander Global, the district court
Expander Global conducts no business and functions merely as a holding company for its wholly owned subsidiary, Expander System Sweden, AB ("Expander Sweden"), another Swedish corporation. Expander
On February 18, 2010, Eagle entered into an Independent Contractor Agreement (the "Agreement") with Expander Americas to provide consulting services. The Agreement contained the following relevant provisions:
A document entitled Exhibit A was attached to the Agreement. It provided that Expander Americas would compensate Bakker at a rate of $4,583.33 per month.
These consulting services soon increased, and Expander Americas requested that Eagle become its Chief Information Officer (CIO) and Chief Financial Officer (CFO) in March 2010. On May 10, 2010, Bakker sent an email to Expander Americas's Chief Executive Officer (CEO), Ron Randen, negotiating modifications to the existing Agreement in light of Eagle's new position. In pertinent part, Bakker's email stated "[a]ttached the first draft of half of the Plan.... Resume and Exhibit B of our service agreement to continue the dialogue on me joining Expander fulltime." Exhibit B stated that it "replace[d] Exhibit A" and would become effective on "6/1/2010."
Also, as part of the new arrangement, Exhibit B provided that Expander Americas was to raise Eagle's compensation rate to $7,500 per month. Exhibit B also stated that "[t]he term of this agreement is 24 months (5/31/2012)." Randen responded the next day, asking if Bakker could "focus more on CFO and CIO functions and activities in the `Professional Experience'? All is good but this focus will help with the board for global responsibilities." Randen's electronic signature, which included his title as CEO of Expander Americas, ended the email. Bakker concedes that the parties never executed Exhibit B. Randen later admitted in a deposition, however, that he believed that Exhibit B became operational and replaced Exhibit A's terms. Further, Expander Americas paid Eagle $7,500 every month pursuant to Exhibit B until the contract was terminated.
On June 19, 2011, Expander Global terminated Bakker from his position as CIO and CFO. Less than a week later, Expander Americas also terminated its agreement with Eagle in writing. The termination letter, signed by Randen, stated that Bakker had "indicated that if [he] did not receive higher compensation from Expander, [he] would go elsewhere and no longer provide the services as set forth in [the Agreement]." Based upon "an email from Roger Svensson to [Bakker], confirming that there would not be an increase in compensation ... [Expander Americas] ... decided to accept [Bakker's] decision to terminate the agreement between [the] companies." The next month, in July 2011, Randen himself was let go from his CEO position at Expander Americas.
Eagle then filed the instant suit against Expander Americas seeking damages alleging breach of contract and promissory estoppel; Bakker filed suit against Expander Global for quantum meruit. The district court dismissed the quantum meruit action pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. Expander Global argued that it did not have the requisite minimum contacts with Missouri to be subject to the Missouri Long-Arm Statute or to satisfy due process. While Bakker had alleged various facts in his complaint, such as Expander Global sending employees to Missouri, the district court found that Bakker had not met his burden of rebutting Expander Global's claims by "`proving facts supporting personal jurisdiction'" with "`affidavits and exhibits presented with the motions and in opposition thereto.'" (Quoting Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607 F.3d 515, 518 (8th Cir.2010).) Without such evidence, the court found that it could not assert personal jurisdiction over Expander Global because it did not have any contacts with Missouri. "It was not licensed to do business in the state; it did not advertise within the state; it did not send employees to the state; no money was received or sent to the state; it quite frankly had no presence within the State of Missouri."
The district court also granted summary judgment in favor of Expander Americas on the remaining claims. Following the parties' choice-of-law provision in the Agreement, the court analyzed whether Exhibit B satisfied the Arizona statute of frauds. As a preliminary matter, the court found that the statute of frauds applied under Arizona case law because Exhibit B's 24-month term meant that this contract
On appeal, Eagle and Bakker argue that the district court erred by finding it could not assert personal jurisdiction over Expander Global and by granting summary judgment in favor of Expander Americas on the remaining claims.
A. Personal Jurisdiction Over Expander Global
We review a district court's decision finding lack of personal jurisdiction de novo. Romak USA, Inc. v. Rich, 384 F.3d 979, 983 (8th Cir.2004). "We approach our analysis of personal jurisdiction on two levels, first examining whether the exercise of jurisdiction is proper under the forum state's long-arm statute. If the activities of the non-resident defendant satisfy the statute's requirements, we then address whether the exercise of personal jurisdiction comports with due process." Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387-88 (8th Cir.1991) (citations omitted); see also Romak, 384 F.3d at 984. Relevant to this appeal, the Missouri long-arm statute provides for personal jurisdiction over parties who transact business and make contracts within Missouri. Mo.Rev.Stat. § 506.500(1)-(2).
"Because `the Missouri long-arm statute authorizes the exercise of jurisdiction over non-residents to the extent permissible under the due process clause, we turn immediately to the question whether the assertion of personal jurisdiction would violate the due process clause.'" Romak, 384 F.3d at 984 (quoting Porter v. Berall, 293 F.3d 1073, 1075 (8th Cir.2002)). We employ a five-factor test to determine whether asserting personal jurisdiction over a party comports with due process: "(1) the nature and quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4) Missouri's interest in providing a forum for its residents; and (5) the convenience or inconvenience to the parties." Myers v. Casino Queen, Inc., 689 F.3d 904, 911 (8th Cir.2012).
Expander Global argues that it lacks the requisite contacts with Missouri to fulfill factors (1)-(3). It contends that its only contact with the state of Missouri is its business relationship with Bakker; it argues that such a relationship, on its own, fails to justify imposing personal jurisdiction.
Bakker points to the daily emails, phone calls, and other communications that he had with personnel from all Expander companies that were directed to his residence in Missouri to argue that Expander Global did have minimum contacts with the state. This argument is unavailing because telephone calls, written communications, and even wire-transfers to and from a forum state do not create sufficient contacts to comport with due process such that a foreign corporation could "reasonably anticipate being haled into court there." Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 594 (8th Cir.2011) (quotation omitted); see also Porter, 293 F.3d at 1076 ("Contact by phone or mail is insufficient to justify exercise of personal jurisdiction under the due process clause." (citation omitted)); Burlington Indus. v. Maples Indus., 97 F.3d 1100, 1103 (8th Cir.1996) (holding that 100 telephone calls by the defendant to the plaintiff were "insufficient, alone, to confer personal jurisdiction" (citation omitted)). Accordingly, Bakker has not carried his burden of establishing a prima facie case that federal courts in Missouri can assert personal jurisdiction over Expander Global.
B. Exhibit B's Enforceability Under the Arizona Statute of Frauds
"We review de novo a district court's grant of summary judgment, affirming if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 849-50 (8th Cir.2014) (quotations and citations omitted). We give the non-moving party "the benefit of all reasonable inferences supported by the evidence," but the non-moving party "has the obligation to come forward with specific facts showing that there is a genuine issue for trial." Id. at 850 (quotation omitted).
"Federal courts sitting in diversity apply the choice-of-law rules of the forum state. Under Missouri law, a choice-of-law clause in a contract generally is enforceable unless application of the agreed-to law is contrary to a fundamental policy of Missouri." Cicle v. Chase Bank USA, 583 F.3d 549, 553 (8th Cir.2009) (quotations and citations omitted). Because the parties contracted to have Arizona law control, we analyze the Arizona statute of frauds to determine whether Exhibit B modified the operative terms of the Agreement.
The Arizona statute of frauds, in relevant part, provides the following:
Ariz.Rev.Stat. § 44-101.
Eagle first argues that the statute of frauds should not apply because the Agreement's termination provision (paragraph 4.B) created a possibility that the contract could have been completed in one year.
Eagle next argues that Exhibit B satisfies the writing requirement of the statute of frauds. Eagle contends that Randen's email, stating that "All is good" and signed with his electronic signature, is enough to satisfy the writing requirement. Eagle is correct when asserting that emails that contain the material terms of an agreement that are signed with electronic signatures similar to Randen's have been held to satisfy the statute of frauds. In such cases, however, the statements in the emails were not ambiguous as to their application to an attached agreement. See, e.g., Cloud Corp. v. Hasbro, Inc., 314 F.3d 289, 295-96 (7th Cir.2002) (finding that emails with the sender's name was enough to satisfy the statute of frauds in a UCC case); Lamle v. Mattel, Inc., 394 F.3d 1355, 1362 (Fed.Cir.2005) (finding that an email signature satisfied the California statute of frauds in an email that only contained the material terms of a proposed agreement).
This case, however, contains an additional element because Randen's "All is good" comment is ambiguous as to which of the several documents attached to Bakker's email he was referring: (1) "the first draft of half of the Plan"; (2) Bakker's resume; or (3) "Exhibit B of our service agreement to continue the dialogue on me joining Expander fulltime." (Emphasis added.)
In an attempt to get over this hurdle, Eagle again raises a new argument on appeal. Eagle argues that Randen's deposition testimony — in which he admitted that he believed Exhibit B became the operative terms of the Agreement — should be used to show he had the requisite intent to be bound. Thus, relying on this admission, Eagle argues that the writing requirement of the statute of frauds is satisfied with his email and electronic signature block.
Below, Eagle did not use Randen's deposition testimony to show intent in order to show that his email satisfies the statute of frauds. Rather, Eagle used Randen's deposition testimony to seek a judicial admission to show that the statute of frauds did not apply at all. As noted above, the inquiry into the statute of fraud's application is a preliminary question that is separate and apart from the inquiry into whether the statute of frauds has been satisfied. Therefore, Eagle's usage and argument of Randen's deposition testimony in the court below — to argue the preliminary application question — is materially different from their usage and argument of Randen's deposition testimony before this court — to make an "intent to be bound" argument that the statute of frauds's writing requirement is satisfied. We decline to consider this new argument not presented to the district court.
Alternatively, Eagle also argues that Expander America's partial performance satisfies the writing requirement. Eagle highlights Randen's approval and signatures on Eagle's invoices that billed for $7,500 every month for nearly a year before the Agreement was ultimately terminated. Eagle argues that Randen's approval of such invoices shows intent to be bound by the terms of Exhibit B, which modified the original payment terms in Exhibit A from $4,583.33 to $7,500 per month. This argument is unavailing under Arizona law because partial performance can only be utilized when seeking an equitable remedy. "[W]here a party attempting to enforce an oral agreement seeks an equitable remedy, such as specific performance, the equitable doctrines of estoppel and part performance are available to him. Where he seeks only a legal remedy, such as money damages for breach, they are not." William Henry Brophy Coll. v. Tovar, 127 Ariz. 191, 619 P.2d 19, 23 (Ariz. Ct.App.1980); see also Rudinsky v. Harris, 231 Ariz. 95, 290 P.3d 1218, 1224 (Ariz. Ct.App.2012) (citing Tovar in rejecting the plaintiff's argument that partial performance should satisfy the Arizona statute of frauds). Therefore, Eagle's exclusive request for legal damages forecloses its partial performance argument. Consequently, Eagle has failed, as a matter of law, to show that Randen's email and subsequent
For the reasons stated herein, we affirm.