Opinion
No. C97-41 MJM.
March 31, 1999.
ORDER
Introduction
This matter is a breach of employment contract case by the plaintiff, Martin Robinson, against the defendant, Western NIS Enterprise Fund (the Fund). The Fund is a private, not-for-profit corporation, funded by the United States Agency for International Development (USAID) to promote private sector development in Ukraine, Moldova, and Belarus. Robinson was hired in 1995 by the Fund to facilitate investment in agricultural development in Ukraine.
Robinson claims he was given a two-year oral contract under which he was to solicit agricultural businesses in Iowa to become partners with the Fund in agricultural development in Ukraine. Robinson was terminated on March 26, 1996. He filed suit alleging breach of employment contract and other state law causes of action in Iowa state court on January 28, 1997.
The Fund removed this case to federal court, on the basis of diversity of citizenship under 28 U.S.C. § 1332, and then moved to dismiss the case for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). In the alternative, the Fund sought to have the case transferred to the Southern District of New York, where it has its headquarters. The Fund argued that it did not have sufficient minimum contacts with Iowa for this court to exercise jurisdiction.
On November 3, 1997, the court denied the Fund's motion to dismiss as well as the motion to transfer. (Doc. #27). The court based its decision largely on an affidavit by Robinson showing that the Fund solicited business in Iowa, paid Robinson in an Iowa bank account, and employed a person in Iowa. ( Id. at 11-12). The court also expected discovery would produce additional contacts between the Fund and Iowa because the Fund objected to an earlier discovery request about any "discussion[s]" with any Iowans on the basis that responding "could encompass a voluminous array of documents." ( Id. at 13-14).
This matter now comes before this court on the Fund's motion for summary judgment on the basis of lack of personal jurisdiction. (Doc. #39). Although the Fund labels its motion as one for summary judgment under Fed.R.Civ.P. 56(b), the court will address the motion as a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2). See Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 762 n. 5 (2d Cir. 1983); United States v. 3 Parcels in La Plata County, 919 F. Supp. 1449, 1452 (D. Nev. 1995); 10A Wright, Miller Kane, Federal Practice and Procedure, Civil 3d § 2713, at 235 (1998) ("[C]ourts have ruled that summary judgment is an inappropriate vehicle for raising a question concerning . . . personal jurisdiction[.]") (collecting cases). Treating the Fund's motion as a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction is necessary because "[i]f the court has no jurisdiction, it has no power to enter a judgment on the merits and [instead] must dismiss the action." 10A Wright, Miller Kane, Civil 3d § 2713, at 239; see 3 Parcels, 919 F. Supp. at 1452 (dismissal for lack of jurisdiction is without prejudice whereas summary judgment has preclusive effect) (citing EF Operating Corp. v. American Buildings, 993 F.2d 1046, 1048 (3d Cir. 1993)).
Much as it did in its earlier motion, the Fund argues that it does not have any significant business contacts with the State of Iowa. The Fund points out that it is a non-profit corporation doing business primarily in Ukraine and Moldova, incorporated in Delaware, with a six-person office in New York City. The Fund argues that any contacts between the Fund and Iowa were too random, fortuitous, or attenuated to support personal jurisdiction over the Fund in Iowa. According to the Fund, Robinson's duties were to facilitate agricultural development in Ukraine by working with international agricultural businesses in Ukraine, not in Iowa. In addition, the Fund argues that further review of its business records has not produced evidence of additional contacts with Iowa, as the court expected, but rather has confirmed the lack of contacts between the Fund and Iowa. The Fund contends that most of Robinson's alleged contacts with "Iowa" companies on behalf of the Fund really involved contacts with international agricultural businesses in Europe.
Robinson responds that personal jurisdiction over the Fund is proper. Robinson contends he was hired by the Fund due to his background in Iowa, he was expected to develop relationships with agricultural businesses in Iowa, and he was terminated because he allegedly failed to buy certain agricultural sprayers when he visited Iowa in December 1995. Robinson claims he had contact with numerous "Iowa" companies, either in Iowa or in Europe, about supplying goods from Iowa to the Ukraine. The list of companies include Cargill, Corn States Hybrid, Davis Equipment, Deere and Company, Hagie Company, ICI/Zeneca, Iowa Export-Import, Kinze Manufacturing, Monsanto, Pioneer Hi-Bred, Shivvers Grain Equipment, and Triple F. Robinson also cites various other contacts the Fund had with Iowa which he claims show sufficient "minimum contacts" for this court to exercise jurisdiction over the Fund.
Standard of Review
Although this court is treating the Fund's summary judgment motion as a motion to dismiss under Rule 12(b)(2), the Eighth Circuit has held that where the district court considers affidavits, depositions, and other evidence outside the pleadings in ruling on a Rule 12(b)(2) motion, the standards of Rule 56 apply. Radaszewski by Radaszewski v. Telecom Corp., 981 F.2d 305, 309-10 (8th Cir. 1992), cert. denied, 508 U.S. 908 (1993). Consequently, a motion to dismiss for lack of personal jurisdiction which involves evidence outside the pleadings may be granted only if the record, viewed in the light most favorable to non-moving party, does not raise any genuine issue of fact material to the question of personal jurisdiction over the moving party. Id.
Motion to Strike
As an initial matter, the Fund moves to strike portions of Robinson's supplemental declaration, dated September 14, 1998, and ten exhibits cited and discussed in the supplemental declaration, as a sanction for Robinson's alleged abuse of the discovery process. (Doc. #58). Specifically, the Fund argues that Robinson did not provide the exhibits or the information contained in his supplemental declaration in his responses to discovery which asked about Robinson's job duties with the Fund and the Fund's contacts with Iowa. Robinson argues that he produced the documents as soon as they were located and that, in any event, the Fund was not prejudiced by their late production.
After thoroughly reviewing the discovery requests, Robinson's responses, and the materials which the Fund seeks to strike, the court believes that Robinson should have provided these documents, or at least a narrative related to the subject matter of the documents, in his earlier responses to the Fund's discovery requests. Robinson does not argue that the documents were not within his "possession, custody or control" for purposes of Rule 34(a). His counsel was under a duty to make a reasonable search to locate responsive documents within his possession. See Fed.R.Civ.P. 26(g)(2). Robinson does not explain what efforts, if any, were made to locate the documents before the Fund filed its motion for summary judgment. Although Robinson's claim that the documents were "not previously located" because of the disarray of losing his job in the Ukraine does not show bad faith, the inability to locate documents which are known to exist is insufficient to excuse a party's failure to provide timely discovery responses. Hansen v. Shearson/American Express, Inc., 97 F.R.D. 465, 466 (E.D. Pa. 1983).
Nonetheless, the court will not grant the Fund's motion to strike because the Fund has not shown what prejudice it suffered due to Robinson's belated production of the exhibits. The discovery deadline did not pass during the time that Robinson failed to provide complete discovery responses. The only prejudice the Fund cites is the fact that it relied on the earlier responses in bringing its motion for summary judgment, but the Fund argues it would have brought the motion anyway. Perhaps the Fund incurred some additional attorneys' fees, but the Fund did not ask for attorneys' fees.
The Fund also may have been unfairly surprised by the materials that purportedly show that the Fund had significant Iowa contacts with Cargill. (Plf. Exs. 6, 9, 13, and 33). Robinson's original and supplemental interrogatory answers did not even list Cargill as an Iowa business with whom Robinson had contact. (Robinson Ans. to Interrogatory No. 3 (Def. Exs. C, F)). However, the Fund did not argue specifically that the Cargill materials should be stricken. Except for Cargill, Robinson's earlier discovery responses apprised the Fund of the companies with which Robinson claims the Fund had significant contacts in Iowa (albeit in less detail than Robinson ultimately provided in opposition to the Fund's motion for summary judgment). Cf. Farmland Indus., Inc. v. Morrison-Quirk Grain, 54 F.3d 478, 482 (8th Cir. 1995) (although the party did not disclose the substance of expert's testimony, as required under the rules, the adverse party was not prejudiced because the expert testified at a previous trial and in a deposition before the second trial).
Even assuming that some sanction would be appropriate, the remedy which the Fund seeks — preclusion of evidence — is an extreme sanction. 6 Moore's Federal Practice, § 26.132[7][a], at 26-308 (Matthew Bender 3d ed. 1998). "Before the extreme sanction of preclusion may be used by the district court, a judge should inquire more fully into the actual difficulties which the violation causes, and must consider less drastic responses." Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988). In this case, Robinson's failure to produce the evidence did not cause the Fund any substantial prejudice, did not violate any court orders, and did not exhibit bad faith. Compare Taylor v. Medtronic, Inc., 861 F.2d 980, 986-87 (6th Cir. 1988) (district court did not abuse its discretion in striking affidavit of plaintiff's expert opposing motion for summary judgment where defendant was prejudiced by plaintiff's failure to make expert available for a deposition, the court repeatedly warned plaintiff of the possible consequences, and the failure to make the expert available appeared to be a product of bad faith). Under these circumstances, the court will deny the Fund's motion to strike the documents and the portions of the supplemental declaration not produced in response to discovery.
Factual Background
Having denied the Fund's motion to strike, the court will now review the specific facts in the record in the light most favorable to Robinson, giving him the benefit of all reasonable inferences in his favor. Because the record is so extensive, the court has organized the facts by the key alleged contacts:
(1) Hiring Robinson. Robinson states: "When I was hired by Defendant I was told that I was being hired because of my Iowa agricultural background . . . and that my Iowa background was important to Defendant because of the large number of Iowa businesses which deal with agriculture." (Robinson Supp. Aff. ¶ 2 (Plf. Ex. 1)). Robinson was born in Iowa in 1958, was raised on his family's farm near Coggon, Iowa, and worked as a bank officer in Iowa making agricultural loans. ( Id.). His permanent residence has always been in Iowa. ( Id. ¶¶ 7-9, 18). During the hiring process, Robinson claims he told the Fund that "Coggon, Iowa was my home" and that he "intended to return to [his] Iowa farm after [his] overseas employment was over." ( Id. ¶ 3). Robinson's wages were paid to an account at an Iowa bank. ( Id. ¶¶ 10-11).
The Fund acknowledges that it hired Robinson in part because of his agricultural background, but not specifically his ties to Iowa. (Schroeder Dep. 11-12). The Fund points to undisputed evidence which shows that when Robinson was hired in 1995, he had not lived in Iowa since 1992. Beginning in 1992, he worked in Ukraine for Volunteers in Overseas Cooperative Assistance (VOCA), and later in Columbia, Missouri, at VOCA's regional headquarters. (Robinson Supp. Aff. ¶¶ 5-6). When the Fund reimbursed Robinson for his air travel to New York City for the job interview, Robinson traveled from Washington, D.C., not Iowa. (Schroeder Aff. ¶ 19). Moreover, when the Fund paid for Robinson to relocate from Missouri to the Ukraine, the Fund reimbursed Robinson for furniture storage expenses in Missouri. (Schroeder Aff. ¶¶ 21-26).
(2) Robinson's Job Duties. Robinson's job duties for the Fund were to facilitate agricultural investments in the Ukraine. (Robinson Supp. Aff. ¶ 2; Schroeder Dep. 17). Robinson was "instructed by my supervisors that I should utilize my knowledge of Iowa agricultural companies to obtain new sources for expertise and materials to use in the Ukraine." (Robinson Supp. Aff. ¶ 12). Robinson contacted a number of companies which were located in or had production facilities in Iowa as part of his job. (Robinson Supp. Aff. ¶ 16).
The Fund acknowledges that it expected Robinson "to be talking to agricultural equipment suppliers." (Schroeder Dep. 29). Natalie Jaresko, who was the Fund's country manager in charge of administering the Kiev office, testified that she "was aware that [Robinson] was contacting American equipment manufacturers." (Jaresko Dep. 43). Jaresko testified that "we always approach American manufacturers first as a matter of course." ( Id. at 44). However, Jaresko stated she had "no knowledge of [Robinson] contacting companies in Iowa." ( Id.).
(3) Pioneer Hi-Bred. Robinson states that the Fund "negotiated with the Des Moines office of Pioneer . . . seeking investment . . . in the Ukraine." (Robinson Supp. Aff. ¶ 16(a)). Robinson states he "spoke with or attempted to speak with" Arthur Lemker, controller for Pioneer's international division in Des Moines, and Jack Watson, another Pioneer executive, "on numerous occasions." (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)). Specifically, on September 26, 1995, Robinson reported to the Fund's management that he spoke with Lemker to obtain Lemker's confidential assessment of several Ukrainian agricultural companies. (Robinson Supp. Dec. ¶ 4(b); Plf. Ex. 7). Robinson's report also stated that "Pioneer is of course interested in our strategy of distributing agricultural inputs in Ukraine. The next step is to meet with Lemker in Brussels, tentatively scheduled for . . . October 15." ( Id.).
Although Robinson explains that this meeting was intended to solicit Pioneer's involvement in the development of agricultural distribution centers in the Ukraine which would sell Pioneer seeds, (Robinson Supp. Dec. ¶ 4(b)), there is no evidence that Robinson ever met with Lemker in Brussels. Neither Lemker nor Watson recall speaking with Robinson about investing in Ukraine or becoming partners with the Fund in Ukraine. (Lemker Dec. ¶¶ 5-7 (Def. Ex. 17); Watson Dec. ¶¶ 5, 7 (Def. Ex. 16)).
The record also mentions Pioneer in other contexts. Robinson's address and phone list (which he maintained in his work for the Fund) included Lemker's number in Des Moines. (Plf. Ex. 10). On July 7, 1995, Robinson met with a Cyanamid representative who stated that Cyanamid was interested in becoming partners with Pioneer in Ukraine. (Robinson Supp. Dec. ¶ 4(c); Plf. Ex. 8). On October 4, 1995, Robinson discussed a list of "prospects" (including Pioneer) with the Fund's management who instructed him "to aggressively pursue those leads." (Robinson Supp. Dec. ¶ 4(a); Plf. Ex. 6). On a chart entitled "Deals and Prospects," dated November 27, 1995, which Robinson gave to the Fund's management to keep them abreast of his activities, Robinson listed Pioneer as "New Business Development." (Robinson Supp. Dec. ¶ 4(d); Plf. Ex. 9). With respect to Pioneer, the chart stated: "Pioneer is looking actively for distribution channels in Ukraine." ( Id.).
Chuck Johnson, Pioneer's president and chief executive officer and a resident of Iowa, served on the Fund's board of directors from October 1994 to March 1998. (Johnson Dec. ¶ 4 (Def. Ex. 13)). Johnson attended four board meetings during that time, all of which were outside the State of Iowa. ( Id.). Johnson states that other than his service on the board of directors, the Fund did not have any contact with the State of Iowa while he was a director. ( Id. ¶ 8).
(4) Corn States Hybrid. Robinson states that the Fund "solicited" Corn States, a Des Moines-based company, about investing in seed distribution in Ukraine. (Robinson Supp. Aff. ¶ 16(b)). On June 27, 1995, Robinson met in Kiev with two Corn States executives, Alec Susic and Raymond Philpott, about joint venture activities in Ukraine. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)). Robinson's address and phone list included both Susic and Philpott in Des Moines. (Plf. Ex. 10).
Both Susic and Philpott state that (1) they met with Robinson in Kiev for less than 30 minutes, (2) they were in Kiev to meet with Monsanto officials about a seed plant financed by the World Bank, and (3) Corn States has not engaged in any substantive business discussion or activities with the Fund. (Philpott Dec. ¶¶ 4-5 (Def. Ex. 19); Susic Dec. ¶¶ 4-5 (Def. Ex. 20)).
(5) Iowa Export/Import and Kinze Manufacturing. Robinson states that the Fund negotiated with Kinze, a Williamsburg, Iowa company, for the purchase of planters and that the Fund solicited and negotiated with Iowa Export/Import for the shipment of agricultural chemicals and other supplies to Ukraine. (Robinson Supp. Aff. ¶¶ 16(c), 16(d)). Robinson states that he had "numerous and extensive" contacts with Iowa Export/Import about Kinze planters and Monsanto chemicals. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)).
Specifically, Robinson states that he made "calls" to Craig Winter at Iowa Export/Import in Des Moines about the "the `Melnick' proposal," which called for using the Fund's resources to buy planters made by Kinze. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2); Robinson Supp. Dec. ¶ 4(g); Plf. Ex. 12). In addition, Robinson states he met in Kiev with Yuri Iverson and other Iowa Export/Import officials for one hour on June 26, 1995 about leasing Kinze equipment and other joint venture opportunities. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)).
The record also mentions Iowa Export/Import and Kinze in other contexts. Robinson's address and phone list included Winters and Iverson in Des Moines. (Robinson Supp. Dec. ¶ 4(e); Plf. Ex. 10). In a report on a call to Cargill's Ukraine office, Robinson identified Iowa Export/Import and Kinze as Cargill's partners in Ukraine. (Robinson Supp. Dec. ¶ 4(f); Plf. Ex. 11). The Fund's representatives attended a Monsanto "field day" in Ukraine, which included a demonstration of Kinze planters. (Robinson Supp. Dec. ¶ 4(i); Plf. Ex. 14). Robinson's list of active projects showed that he had not had any contact with Iowa Export-Import but intended to send a facsimile to Winters on July 28, 1995. (Robinson Supp. Dec. ¶ 4(j); Plf. Ex. 16). Minutes from a Ukrainian Agricultural Development Company meeting showed that Iowa Export/Import invested $100,000 to $500,000 in UADC, but it does not show any relationship between Iowa Export/Import and the Fund, except as potential co-investors in the UADC. (Robinson Supp. Dec. ¶ 4(k); Plf. Ex. 17). Finally, Robinson's handwritten notes, dated October 18, 1995, suggest that the Fund wanted to invest in either John Deere or Kinze planters, but there is no evidence this investment ever materialized. (Robinson Supp. Dec. ¶ 4(h); Plf. Ex. 13).
Craig Winters, president of Iowa Export/Import, and Yuri Iverson, who was then product manager for Iowa Export/Import, state they are not familiar with Robinson, that they do not recall speaking with Robinson, and that Iowa Export/Import has never been involved with the Fund in any joint venture in Ukraine. (Winters Dec. ¶¶ 7, 9 (Def. Ex. 22); Iverson Dec. ¶¶ 8-9 (Def. Ex. 23)). Dennis Whitehead, marketing manager for Kinze, states that he is not familiar with Robinson and that Kinze never engaged in any substantive discussions with the Fund about selling or leasing equipment or investing in Ukraine. (Whitehead Dec. ¶¶ 6-7 (Def. Ex. 21).
(6) Monsanto. Robinson states that the Fund solicited Monsanto to ship agricultural chemicals to Ukraine. (Robinson Supp. Aff. ¶ 16(g)). Robinson states that "it was my understanding" that Monsanto's chemicals are manufactured in Iowa. ( Id.). Specifically, Robinson states he had "continuous and extensive" contacts with Monsanto, where Guiseppe Matassi was the main contact. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)). Indeed, the Fund shared a building with Monsanto in Kiev and Robinson saw Monsanto employees regularly. (Robinson Supp. Dec. ¶ 5 (Plf. Ex. 3)).
The record also mentions Monsanto in other contexts. Robinson states that Monsanto's role as a potential supplier of chemicals was noted when he spoke with representatives of Iowa Export/Import. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)). Robinson's address and phone list included Matassi at his office in Brussels, Belgium. (Plf. Ex. 10). Robinson's list of "prospects" for the Fund's management included Monsanto. (Robinson Supp. Dec. ¶ 4(a); Plf. Ex. 6). Robinson's list of active projects states that he contacted Matassi in "late June" and that he would send a facsimile to Matassi listing "next steps" if Monsanto is interested. (Plf. Ex. 16). On the chart entitled "Deals and Prospects," dated November 27, 1995, which Robinson prepared for the Fund's management, Monsanto is listed as "New Business Development" with the note, "No action here since October. Matassi knows where we are, and is waiting for cheap USAID money." (Plf. Ex. 9).
Robinson admits that Monsanto is headquartered in St. Louis, has production facilities around the world, and does not designate a specific source for the chemicals it produces. (Plf. Stmt. of Disp. Facts ¶¶ 45-47). Howard Van Bell, Monsanto's plant manager in Muscatine, states that he has never heard of Matassi, Robinson, or the Fund, and that the Muscatine plant is not involved in sales in Ukraine. (Van Bell Dec. ¶¶ 6-8 (Def. Ex. 28)).
(7) Triple F and Shivvers Grain. Robinson states that the Fund "solicited and negotiated with Triple F of Des Moines for the purchase of a soybean extruder" and solicited an Iowa grain storage company (later identified as Shivvers Grain) for grain storage capacity. (Robinson Supp. Aff. ¶¶ 16(e), 16(f) (Plf. Ex. 1)). Robinson explains that both companies invested in a joint project in Ukraine called "Soya Ross," that both companies were promoted by the Iowa International Development Foundation (IIDF) based in Ames, Iowa, and that Robinson met in Ukraine with Andrei Kudriatsev and Dick Gannon of the IIDF. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)).
Kudriatsev states that he met with Robinson in Ukraine to solicit Robinson's advice about development opportunities in Ukraine. (Kudriatsev Dec. ¶ 6 (Def. Ex. 24)). Kudriatsev also states that after he became project coordinator for international projects for Triple F, he tried to call Robinson once, but was unsuccessful. ( Id. ¶ 7). Wayne Fox, chairman and chief executive officer for Triple F, and Carl Shivvers, president of Shivvers Grain, both state that prior to this litigation, they were not familiar with either Robinson or the Fund. (Fox Dec. ¶ 4 (Def. Ex. 25); Shivvers Dec. ¶ 7 (Def. Ex. 26)).
(8) ICI/Zeneca. Robinson states that the Fund "negotiated with ICI/Zeneca Seeds of Des Moines . . . through ICI's Des Moines office." (Robinson Supp. Aff. ¶ 16(h)). Robinson explains that ICI/Zeneca "carried out a huge project in Ukraine" in 1993, which involved large sales of seed corn and sales of 100 John Deere combines and 100 Massey Ferguson combines. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)).
Following instructions from his supervisors, Robinson "actively pursued additional joint venture investment from ICI/Zeneca. Contacts were extensive (several times monthly) with ICI/Zeneca's local representative Igor Ko[w]al, and may have included telephone call(s) by me to ICI/Zeneca President Ted Crosbie in Des Moines." ( Id.). However, Robinson's list of active projects notes that when he contacted Igor Kowal, "Igor was pretty negative; they've taken all the equity positions they can handle for now." (Plf. Ex. 16).
On June 30, 1995, Robinson prepared a memorandum regarding agricultural distribution centers, which stated "we've now talked to most of the significant universe of western [chemical] suppliers," including Zeneca. (Robinson Supp. Dec. ¶ 4(p); Plf. Ex. 23). About Zeneca, however, the memorandum stated: "Not interested in additional equity investment." ( Id.).
The record also mentions ICI/Zeneca in other contexts. On August 17, 1995, the Fund met with a Ukrainian distributor which "expected to sell $5,000,000.00 worth of ICI/Zeneca products in 1996," but there is no evidence that the Fund invested in this distributor or that such investment involved contacts with ICI/Zeneca in Iowa. (Robinson Supp. Dec. ¶ 4(n); Plf. Ex. 21). On October 20, 1995, Robinson drafted a letter for the Fund's chief executive officer which stated that the Fund "approached more than 15 western chemical suppliers [including Zeneca] with an offer to put up to $5 to $10 million of at-risk equity capital into their sales and distribution networks." (Robinson Supp. Dec. ¶ 4(r); Plf. Ex. 25). In February, 1996, Robinson called ICI/Zeneca as a credit reference on the Fund's investment in another Ukrainian company, but he does specify whether he called Zeneca's office in Iowa. (Robinson Supp. Dec. ¶ 4(o); Plf. Ex. 22). Finally, Robinson's handwritten notes from February 26, 1996, reflect that the Fund was considering the purchase of ICI/Zeneca products for the "Troyan" project for $61,500. (Robinson Supp. Dec. ¶ 4(q); Plf. Ex. 24).
Crosbie, president of ICI Seeds in West Des Moines, states he does not know Robinson and is not familiar with the Fund, and has no recollection of any telephone calls from Robinson. (Crosbie Dec. ¶¶ 4-5 (Def. Ex. 29)). Kowal, who represents Zeneca in Ukraine, states that he has no reporting relationship or corporate link to Zeneca in Iowa and that his contacts with Robinson were about general economic conditions in Ukraine and did not involve "any substantive discussions" regarding joint ventures or other business transactions between the Fund and Zeneca. (Kowal Dec. ¶¶ 2-5 (Def. Ex. 30)).
(9) Cargill. Robinson states that he "personally met on multiple (more than six) occasions with a Cargill representative in order to solicit Cargill's involvement with the Fund. Cargill has its North American corn milling headquarters in Cedar Rapids [along with 36 other facilities in Iowa]." (Robinson Supp. Dec. ¶ 4(f)). Specifically, Robinson submits a memorandum which shows he met with Gerrit Hueting and Mikhail Yevtushenko of Cargill AT, a Ukrainian firm, on June 19, 1995, about potential investments in the crushing and refining of oil seeds. (Robinson Supp. Dec. ¶ 4(f); Plf. Ex. 11).
The record also mentions Cargill in other contexts. Robinson's list of active projects, dated July 28, 1995, notes that Hueting "is interested in an `international supply consortium' or an `international finance consortium' but not interested in equity investment in private companies other than his own." (Robinson Supp. Dec. ¶ 4(j); Plf. Ex. 16). Robinson's list of "prospects" from October 4, 1995, included Cargill. (Robinson Supp. Dec. ¶ 4(a); Plf. Ex. 6). On the chart entitled "Deals and Prospects," dated November 27, 1995, Cargill is listed as "New Business Development" with the notation, "Faxed term sheet on Oct. 2." (Robinson Supp. Dec. ¶ 4(d); Plf. Ex. 9). Finally, Robinson claims his calendar of activity from August 3, 1995 to March 16, 1996 "shows meetings with Cargill," but there is no other evidence whether these meetings occurred or whether they involved Iowa. (Robinson Supp. Dec. ¶ 4(z); Plf. Ex. 33).
Ronald Lumbauch, general counsel of Cargill in North America, states that Cargill's corporate headquarters are in Minnesota, that there is no record of any business transaction between Cargill and the Fund in the United States, and that Cargill's operations in Ukraine are supervised by its European headquarters in Cobham, England. (Lumbauch Dec. ¶¶ 3, 5 (Def. Ex. 42)).
(10) Deere Company. Robinson states that the Fund "negotiated extensively with [Deere] for the sale of combines to the Ukraine. It is my understanding that all or a portion of these combines are made in Iowa." (Robinson Supp. Aff. ¶ 16(i)). Specifically, Robinson states that he made trips to western Europe along with Harry Schroeder, the Fund's chief investment officer, and Scott Carlson, the Fund's chief executive officer, to negotiate with Deere to invest in a project in Ukraine involving the sale of 1,000 combines manufactured by Deere, as well as a project to establish service and repairs for the combines. (Robinson Ans. to Interrogatory No. 4 (Plf. Ex. 2)).
In mid-September, 1995, Robinson met with Deere Export Company in Mannheim, Germany. (Plf. Ex. 26). Robinson reported that Deere had authorized establishment of a retail network in Ukraine and that Deere Export was "enthusiastic" about the Fund's agricultural distribution center proposal. (Plf. Ex. 29). Robinson expected a response within four weeks. ( Id.). Robinson's report stated that John Deere Leasing Corporation, based in Moline, Illinois, was a possible delivery system for financing retail sales in Ukraine. ( Id.). On Robinson's chart entitled "Deals and Prospects," dated November 27, 1995, however, Robinson noted: "No word from [Deere] for several weeks, though we've left multiple messages. Deere needs to get off their duff. I don't see any benefit in us putting any more time into it." (Plf. Ex. 9).
In March, 1996, Robinson prepared a slide presentation for the Fund's chief investment officer, Harry Schroeder, to give to John Deere executives. (Robinson Supp. Dec. ¶ 4(u); Plf. Ex. 28). The slide presentation described a proposal for joint participation by the Fund, Deere, and European affiliates which had a projected market of 300 combines, 300 tractors, and 300 planters in the first year, followed by rapid growth as Deere replaced Russian manufacturers. ( Id.). Robinson calculates that this deal would have involved up to $45 million in parts and equipment made in Iowa in the first year alone. ( Id.). Again, however, there is no evidence that Deere accepted this proposal.
The record also mentions Deere in other contexts. Robinson's address and phone list included David Rogers of Deere Company in East Moline, Illinois. (Plf. Ex. 10). On July 14, 1995, Robinson wrote that he was preparing to contact Deere in Mannheim, Germany. (Plf. Ex. 31). Deere is listed on Robinson's list of "prospects." (Robinson Supp. Dec. ¶ 4(a); Plf. Ex. 6). On September 18, 1995, Robinson asked the Fund to invest $1,130,000 in Bogdanov Farms, which included the purchase of Deere equipment. (Plf. Ex. 32). On October 30, 1995, Deere is mentioned as possibly supplying 30 combines to Ukraine's Ministry of Agriculture. (Plf. Ex. 30). In December, 1995, Robinson prepared a memorandum which reflected the fact that the Fund was "actively soliciting four major western combine manufacturers as co-investors, including John Deere[.]" (Plf. Ex. 34). Finally, Robinson's calendar of activity from August 3, 1995 to March 16, 1996 shows he had "at least 10 meetings with Deere Company," but he does explain the relevant details about any of these meetings or how they involved Iowa. (Robinson Supp. Dec. ¶ 4(z); Plf. Ex. 33).
Bernard Hardiek, president of the worldwide agricultural equipment division of Deere, states that the company has its headquarters in Moline, Illinois, that any discussions with the Fund about investing in Ukraine would have been handled by Deere's office in Mannheim, Germany, and that Deere has never engaged in any business transactions with the Fund. (Hardiek Dec. ¶¶ 1, 6-8). Hardiek estimates that Iowa-source components comprise about 15 percent of combines manufactured by Deere. ( Id. ¶ 9).
(11) Tom Meade. Robinson states that the Fund "hired Mr. Tom Meade of Coralville, Iowa to assist with problems involving combines and sprayers. Mr. Meade performed part of this assignment while in Iowa." (Robinson Supp. Aff. ¶ 16(j)). The record shows that in 1995, the Fund sought a VOCA volunteer to visit agricultural distributors in Ukraine to assess their capabilities to help guide the Fund's investment strategy. (Meade Dec. ¶ 4, Ex. 1 (Plf. Ex. 27)). The Fund's contact person for this project was Robinson. ( Id.).
Meade, who was a VOCA volunteer, was selected by the Fund from a pool of VOCA volunteers. (Cox Dec. ¶ 3 (Def. Ex. 33)). Meade states that from his resume, the Fund was aware of his Iowa background and his experience as a Deere dealer. (Meade Dec. ¶ 7). After Meade was selected by the Fund, but before he departed for Ukraine, he contacted a John Deere executive at its Waterloo, Iowa production facilities "to obtain information for use in the Western NIS Enterprise Fund project . . . concerning how to establish and operate a repair and service facility for John Deere Equipment." ( Id. ¶ 6). Meade worked as a VOCA volunteer for the Fund for three weeks. (Cox Dec. ¶ 4).
(12) Glenn Chafee. Robinson states that the Fund directed Chafee to travel to Pella, Iowa, to discuss window contracts with Pella Corporation. (Robinson Supp. Aff. ¶ 16(k)). Chafee states that Robinson's affidavit is incorrect. (Chafee Dec. ¶ 5 (Def. Ex. 34)). Chafee is a former Pella executive who twice volunteered for the Fund through the International Executive Service Corps. ( Id. ¶ 3). In 1996, after finishing several months of volunteer work for the Fund, he traveled from his residence in Florida to Iowa on a vacation en route to Colorado. In Iowa, Chafee asked for and was given sample distributor agreements and other business documents from Pella which he gave to the Fund for use in a window manufacturing development project. ( Id. ¶¶ 7-10).
(13) Bruce and Brad Campbell. Robinson states that the Fund assisted Bruce Campbell of Washington, Iowa in farming operations in Ukraine. (Robinson Supp. Aff. ¶ 16(l)). At one meeting, Robinson was given a business card by Brad Campbell, who identified himself as the program manager for the farmer-to-farmer program for Ukraine sponsored by Winrock International and Iowa State University's Center for Agricultural Research and Development. (Robinson Supp. Dec. ¶ 4(bb) (Plf. Ex. 37)).
It is undisputed that Robinson and the Campbells met on three or four occasions in Ukraine. The Campbells state, however, that these meetings were with Robinson when he worked for VOCA. (Bruce Campbell Dec. ¶ 5 (Def. Ex. 35); Bradley Campbell Dec. ¶ 5 (Def. Ex. 36)). The Campbells also state that the Fund never provided them with any assistance in Ukraine. (Bruce Campbell Dec. ¶ 6 (Def. Ex. 35); Bradley Campbell Dec. ¶ 6 (Def. Ex. 36)).
(14) Sprayers in Iowa. In December, 1995, Jaresko told Robinson to focus on the purchase of self-propelled agricultural sprayers which were needed for the "Dukach" project. (Robinson Supp. Aff. ¶ 12; Robinson Supp. Dec. ¶ 4(o); Plf. Ex. 22). According to Robinson, the Fund received bids from French manufacturers for similar sprayers, but the price was too high to make the investment feasible. I knew from my Iowa agricultural background that similar agricultural sprayers are manufactured by . . . Hagie, located in Clarion, Iowa, and Davis Equipment, located in Johnston, Iowa. Before my trip to the United States [for "home leave"], at my supervisor's direction, I attempted to contact these manufacturers telephonically and by correspondence. . . . [M]y supervisors . . . encouraged me to contact these companies while I was in Iowa and to carry out negotiations for the purchase of these sprayers.
( Id.). During his trip to Iowa, Robinson claims he kept in regular telephone contact with Jaresko while he was in Iowa to apprise her of developments and to get her direction. (Robinson Supp. Aff. ¶ 13). Asked whether Robinson called her from Iowa in December, 1995, Jaresko testified: "I don't recall any [calls] specifically, however, it's definitely possible that he did." (Jaresko Dep. 44).
(15) Davis Equipment. Robinson spoke with Russ Hansen, sales manager for Davis Equipment, between mid-December 1995 and January 1996, regarding the "Wilmar" and "Melroe" spraying equipment sold by Davis. (Robinson Ans. to Interrogatory No. 2 (Plf. Ex. 2)). Robinson acknowledges that he did not purchase any sprayers from Davis Equipment. (Robinson Supp. Aff. ¶ 14). Although Hansen does not recall talking with Robinson, he states it is "possible" that Robinson called, but that he "gives little credence to these types of general inquiries related to exporting equipment" because Davis Equipment does not export sprayers. (Hansen Dec. ¶¶ 3, 4, 6 (Def. Ex. 41)).
(16) Hagie. Robinson spoke with Hagie's international sales manager, John McOllough, on January 15, 1996, regarding the potential to use Hagie's sprayers in the "Dukach" and "Melnick" projects. (Robinson Ans. to Interrogatory No. 1 (Plf. Ex. 2)). Robinson acknowledges that he did not purchase any sprayers from Hagie. (Robinson Supp. Aff. ¶ 14). McOllough, Hagie's marketing manager, states he does not know Robinson and, to the best of his knowledge, he did not talk with him on January 15, 1996. (McOllough Aff. ¶¶ 2-3 (Def. Ex. 38)). In addition, Hagie's president, John R. Hagie, and Hagie's sales manager, Gaylen Kuperus, each stated that to the best of his knowledge, he did not talk to Robinson about selling sprayers to Ukraine. (Hagie Aff. ¶ 3 (Def. Ex. 39); Kuperus Aff. ¶ 3 (Def. Ex. 40)).
(17) Termination. Despite his "best efforts" with Hagie and Davis Equipment, Robinson admits he was unable to purchase the sprayers. (Robinson Supp. Aff. ¶ 14). When Robinson was terminated on March 26, 1996, he was told that he was being terminated for his "alleged failure to complete projects in a timely manner." ( Id. ¶ 15). Robinson explains that "[t]his stated reason was a reference to the Iowa sprayer project, which was a high priority at the time of my Iowa trip." ( Id.). By contrast, the Fund states that it terminated Robinson because he committed the Fund to purchase certain items without the Fund's authority. (Fund Ans. to Interrogatory No. 16 (Def. Ex. 3)).
Analysis
Although the court thoroughly reviewed the governing standards of a motion to dismiss for lack of personal jurisdiction in its previous Memorandum Opinion and Order, (Doc. #27 at 3-10), the court will again briefly review the controlling legal principles. In deciding whether this court has personal jurisdiction over the Fund, the court must address (1) whether Iowa would allow a state court to exercise jurisdiction over the Fund and (2) whether the exercise of jurisdiction over the Fund would violate the Due Process Clause of the Fourteenth Amendment. Guinness Import Co. v. Mark VII Distributors, Inc., 153 F.3d 607, 613 (8th Cir. 1998). Because Iowa allows personal jurisdiction to the fullest extent allowed by the Constitution, Bell v. Fischer, 887 F. Supp. 1269, 1277 (N.D. Iowa 1995) (Bennett, J.) (citing Larsen v. Scholl, 296 N.W.2d 785, 788 (1980)), the question is whether exercising jurisdiction over the Fund in Iowa is consistent with due process under the circumstances of this case.Due process prohibits the exercise of jurisdiction over a nonresident defendant unless the defendant has "`minimum contacts' with the forum state such that the maintenance of a suit against that defendant does not offend `traditional notions of fair play and substantial justice.'" Guinness Import, 153 F.3d at 613-14 (quoting International Shoe v. Washington, 326 U.S. 310, 316 (1945)) (internal quotations omitted). "Minimum contacts" requires "`some act by which the defendant purposely avails 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) (quoting Hanson v. Deckla, 357 U.S. 235, 253 (1958)). Moreover, "[o]nce it has been decided that a defendant purposefully established minimum contacts with the forum state, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with `fair play and substantial justice.'" Id. at 476. These factors include the burden on the defendant, the interests of the forum state, the plaintiff's interests, judicial economy, and multi-state public policy concerns. Id. at 477 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).
Thus, as the Eighth Circuit has explained, five main factors control the personal jurisdictional inquiry: (1) the nature and quality of the defendant's contacts with the forum state; (2) quantity of contacts; (3) source and connection of the cause of action with those contacts; (4) the interests of the forum state; and (5) the convenience of the parties. E.g., Guinness Import, 153 F.3d at 614; Burlington Indus. v. Maples Indus., 97 F.3d 1100, 1102 (8th Cir. 1996); Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1388 (8th Cir. 1993).
In this court's Memorandum Opinion and Order, the court distinguished between "specific jurisdiction" and "general jurisdiction." The Eighth Circuit has held that the standard of "minimum contacts" is met if the plaintiff shows "specific jurisdiction," i.e., that "`the defendant has purposely directed its activities at forum residents, and the litigation results from injuries arising out of, or relating to, those activities.'" Guinness Import, 153 F.3d at 614 (quoting Burlington Indus., Inc. v. Maples Indus., 97 F.3d 1100, 1102 (8th Cir. 1996)); Dean v. Olibas, 129 F.3d 1001, 1004 (8th Cir. 1997) (same); see also Burger King, 471 U.S. at 472-73. By contrast, the plaintiff may establish "general jurisdiction" over the defendant by showing that the defendant had "continuous and systematic" contacts with the forum state, even if the injuries at issue did not arise out of the defendant's activities directed at the forum. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 445-47 (1952); Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280-81 (8th Cir. 1991).
A. General Jurisdiction.
In its earlier Memorandum Opinion and Order, this court found, drawing all reasonable inferences in favor of Robinson based on the factual record before it at the time, that Robinson made a prima facie case of general jurisdiction over the Fund. (Doc. #27 at 14-15). After exhaustively reviewing the record now before the court, however, the court concludes that the Fund does not have "continuous and systematic" contacts with the State of Iowa and thus is not subject to general jurisdiction in Iowa.
First, discovery has shown that what the court inferred was a pattern of business negotiations in Iowa was nothing more than a few isolated calls by Robinson about potential business deals in Iowa. Viewing the current record in the light most favorable to Robinson, it shows that Robinson made calls to Iowa to four people — Arthur Lemker of Pioneer, Craig Winter of Iowa Export/Import, John McOllough of Hagie, and Russ Hansen of Davis Equipment — seeking information about equipment or longer terms business relationships that did not materialize. There are no letters, draft contracts, or other evidence which would show extensive negotiations by the Fund in Iowa.
Second, the record is now clear that the Fund did not employ Tom Meade to work in Iowa. Viewing the current record in the light most favorable to Robinson, it now shows that Meade was a volunteer for the Fund who, on his own initiative, contacted a company in Iowa on the Fund's behalf when he was not working directly for the Fund. This is similar to the situation of Glenn Chafee, another volunteer who obtained information from an Iowa company for the Fund's use after his volunteer experience with the Fund ended. The Fund did not employ either Meade or Chafee to work in Iowa.
Third, the numerous meetings which took place outside of Iowa do not establish general jurisdiction within this state. Robinson argues that the Fund conducted extensive negotiations in Europe with Iowa companies seeking investment in Ukraine or purchases of Iowa-made goods for use in Ukraine. Accepting this as true for purposes of ruling on the Fund's motion, these foreign contacts are not sufficient to show minimum contacts with Iowa. These foreign contacts do not show that the Fund "purposely availed itself of the privilege of conducting activities within the forum State." Burger King, 471 U.S. at 475 (emphasis added). Further, the Supreme Court has held that "purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction." Helicopteros, 466 U.S. at 417. It stands to reason, a fortiori, that foreign contacts that were intended to lead to purchases, but did not, are not a sufficient basis for general jurisdiction.
Even assuming that the foreign meetings count toward the minimum contacts analysis, the record shows that these meetings did not amount to any systematic and continuous relationship with Iowa businesses. Viewing the record in the light most favorable to Robinson, it shows that:
* The Fund intended to have a meeting in Brussels with Pioneer representatives from Iowa about potential investment in Ukraine. This meeting may not have happened but, even if it did, it did not result in any business activity affecting Iowa.
* The Fund met once in Ukraine with two Corn States representatives from Iowa to discuss potential joint venture activities in Ukraine, but the meeting did not result in any business activity affecting Iowa.
* The Fund met once in Ukraine with Iowa Export/Import officials about potential business related to Kinze planters or Monsanto chemicals, but this meeting did not result in any business activity affecting Iowa.
* The Fund had several meetings in Europe with European representatives of Monsanto about joint ventures. However, Monsanto told the Fund that it preferred obtaining money from other sources, and nothing affecting business activity in Iowa came as a result of the meetings.
* The Fund met once in Ukraine with two representatives of the Iowa International Development Foundation about development projects involving Iowa companies in Ukraine, but this meeting did not result in any business activity affecting Iowa.
* The Fund had several meetings in Ukraine with a local representative of ICI/Zeneca about investing in Ukraine. However, ICI/Zeneca told the Fund it was not interested in additional equity investments, and nothing affecting business activity in Iowa came as a result of the meetings.
* The Fund had several meetings in Ukraine with local representatives of Cargill about investing in Ukrainian companies. However, Cargill told the Fund it was not interested in equity investments, and nothing affecting business activity in Iowa came as a result of the meetings.
* The Fund had several meetings in Europe with European representatives of Deere Company about investing in distribution centers or service and repair centers in Ukraine. However, there is no evidence that Deere accepted any of the Fund's proposals, and nothing affecting business activity in Iowa came as a result of the meetings.
None of these meetings produced any draft agreements or other significant negotiations. Certainly none of them produced any significant business activity in Iowa. It appears that Robinson spent much of his time analyzing the situation in Ukraine, planning efforts to motivate investment by western companies (including Iowa companies), and networking with western businessmen (including those with ties to Iowa) in Ukraine. None of this activity, however, provides contacts with Iowa to support general jurisdiction over the Fund.
In its previous Memorandum Opinion and Order, this court recognized that the question of general jurisdiction was a "close call" because the Fund has not maintained an office, owned property, advertised or sold products, or purchased goods or services in Iowa. Now, however, without any employees stationed in Iowa, and without any substantial business negotiations in Iowa, the contacts in this case are far short of the contacts required for general jurisdiction. See Helicopteros, 466 U.S. at 416-19 (contract negotiations by chief executive officer, purchase of more than $4 million in helicopter equipment, helicopter training for employees, and payment from a bank account in Texas not enough to establish general jurisdiction). In comparison to Helicopteros, the contacts in the record in this case — calls to four people in Iowa about potential business, the overseas meetings with companies with some relationship to Iowa about potential business, selection of an Iowan as a short-term volunteer, a visit to Iowa by another volunteer, an Iowan serving on the Fund's board of directors, and payment of an employee's wages to an Iowa bank account — are clearly insufficient to find general jurisdiction that, by definition, would allow any person to sue the Fund in Iowa on any cause of action.
B. Specific Jurisdiction.
In the alternative, Robinson contends that he has made a sufficient showing of "specific jurisdiction" to survive the Fund's motion. Robinson argues that his cause of action — breach of employment contract — arises out of the Fund's contacts with Iowa because he was hired because of his Iowa background, he was asked to develop business relationships with Iowa companies, and he was terminated because he allegedly failed to purchase agricultural sprayers while in Iowa in December, 1995. The Fund argues that there is no evidence to support Robinson's claims except Robinson's "self-serving affidavit." Further, the Fund argues that even if true, these facts would be insufficient to create personal jurisdiction over the Fund.
The Fund also argues that the court previously rejected Robinson's specific jurisdiction argument in a footnote in its previous Memorandum Opinion and Order. (Doc. #27 at 10 n. 3). Because the court dealt with that issue in only a cursory manner in its prior decision, the court will now revisit the issue of specific jurisdiction in more detail here.
As to the Fund's argument that Robinson's "self-serving affidavit" is inadequate, the court notes that Fed.R.Civ.P. 56(e) does not prohibit "self-serving" affidavits, but rather requires that affidavits be based on personal knowledge and set forth specific, admissible facts. See, e.g., Cadle Co. v. Hayes, 116 F.3d 957, 961 n. 5 (1st Cir. 1997) (a party's affidavit may be self-serving, but it is competent to defeat summary judgment only if it is based on personal knowledge). In this case, however, the court questions whether Robinson's affidavit sets forth specific, admissible facts about what he was told when he was fired. Robinson does not state that the Fund told him he was fired because he failed to buy sprayers in Iowa, but rather that he was fired because he allegedly did not complete projects in a timely manner. (Robinson Supp. Aff. ¶ 15). Robinson suggests that it can be inferred from this statement that he was fired because of failing to buy sprayers. ( Id.). This inference is not necessarily reasonable given that Robinson returned from Iowa in early 1996 but was not fired until March 26, 1996.
Even assuming that Robinson's affidavit set forth specific, admissible facts about his termination, the court agrees that the facts contained in Robinson's affidavit are not sufficient to allow for specific jurisdiction. In Burger King, the Supreme Court held that Florida could exercise specific jurisdiction over a nonresident defendant who owned and operated a franchise in Michigan for a restaurant chain based in Florida. Although the franchisee had never traveled to Florida, the franchisee's contacts with Florida included (1) negotiating in Florida, (2) entering a contract which called for a 20-year relationship with the restaurant chain in Florida, (3) sending payments to Florida, and (4) reporting franchise information to Florida. 462 U.S. at 479-81. The Court reasoned that the mere existence of a contract with a Florida corporation was not enough to subject the defendant to personal jurisdiction in Florida, but the negotiation of the contract and the expected performance under the contract showed that the defendant had sufficient contacts with Florida to support personal jurisdiction. Id.
Unlike the restaurant chain in Burger King, the record is clear in this case that Robinson was not a resident of Iowa when the employment contract was negotiated. Robinson was living in Missouri when he was hired, and had lived in Ukraine for about two years before Missouri. Although Robinson claims he told the Fund about his Iowa background and his intentions of returning to Iowa, the Fund did not reach out to Iowa to find an employee the way the franchisee reached out to negotiate with the restaurant chain headquartered in Florida. Compare King v. McAllister Bros., 659 F. Supp. 39, 44 (S.D. Ala. 1987) (employee could obtain specific jurisdiction over nonresident defendant for breach of contract claim in state where he was solicited for employment).
Moreover, the record is clear that expected performance of the employment contract did not involve Iowa to the same extent that the franchise agreement in Burger King involved Florida. Robinson was not expected to locate in Iowa. Rather, he was expected to work in Ukraine on agricultural development in Ukraine. Robinson claims that he was also expected to develop business relationships with companies in Iowa, but the record is clear that he spent the vast majority of his time working with Ukrainian companies or soliciting business from European and American companies not connected to Iowa. Few, if any, of the documents Robinson submitted focus specifically on Iowa or Iowa companies. Robinson's extensive efforts to develop relationships with Cargill, Deere, and Monsanto were only indirectly related to Iowa through the possible manufacturing in Iowa of products which Robinson expected the companies to sell in Ukraine. For these reasons, the court concludes that the "expected performance" of Robinson's employment contract was not sufficiently related to Iowa to provide specific jurisdiction over the Fund. Compare Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th Cir. 1991) (upholding specific jurisdiction in California over nonresident defendant who negotiated contract with a Californian for film rights to his book which expressly contemplated that film production and advertising would occur in California).
For example, Robinson's handwritten list of "prospects," his chart on "deals and prospects," his phone number and address list, and his list of active projects include many western companies which have no connection to Iowa. (Plf. Exs. 6, 9, 10, 16). Similarly, the documents which show contact with ICI/Zeneca also shows that it was contacted as just one of "more than 15 western chemical suppliers." (Plf. Exs. 23, 25). Likewise, a document about Deere shows it was contacted as one of "four major western combine manufacturers." (Plf. Ex. 34).
ORDER
For the foregoing reasons, the defendant's motion to strike (Doc. #58) is DENIED and the defendant's motion for summary judgment (Doc. #39) (construed as a motion to dismiss under Fed.R.Civ.P. 12(b)(2)) is GRANTED. The plaintiff's First Amended Complaint (Doc. #35) is hereby DISMISSED without prejudice for lack of personal jurisdiction. Judgment in favor of the defendant shall be entered accordingly.
Done and so ordered this 31st day of March, 1999.