Hawkeye Gold, LLC v. China National Materials Industry Import and Export Corporation

Filing 201

ORDER granting 164 Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. Case dismissed for lack of personal jurisdiction over defendant. Signed by Magistrate Judge Stephen B. Jackson, Jr. on 7/25/2022. (jeb)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
HAWKEYE GOLD, LLC,
v.

Plaintiff,

CHINA NATIONAL MATERIALS
INDUSTRY IMPORT AND EXPORT
CORPORATION d/b/a SINOMA,
Defendant.
___________________________________

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CIVIL NO. 4:16-cv-00355-SBJ

ORDER

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I. INTRODUCTION
Before the Court is a Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 164)
filed by defendant China National Materials Industry Import and Export Corporation d/b/a Sinoma
(“Sinoma”). Sinoma contends this case should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(2) for lack of personal jurisdiction. Sinoma emphasizes it is a Chinese corporation
and asserts it has insufficient contacts with Iowa for this Court to have jurisdiction. Sinoma also
contends the case should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon
which relief can be granted. Sinoma asserts plaintiff’s claims are barred by the doctrines of merger
and res judicata/claim preclusion due to the entry of default judgment obtained by plaintiff against
its subsidiary in a prior lawsuit.
Plaintiff Hawkeye Gold, LLC (“Hawkeye Gold”) resists the motion. Dkt. 168. Hawkeye
Gold first contends Sinoma waived its challenge to personal jurisdiction. In turn, Hawkeye Gold
asserts this Court has personal jurisdiction over Sinoma due to sufficient contacts with Iowa.
Hawkeye Gold also contends the doctrines of merger and res judicata do not bar its claims. Sinoma
refutes those assertions in reply (Dkt. 169) to which Hawkeye Gold filed a sur-reply (Dkt. 173).

The Court considers the motion to be fully submitted. Oral argument by counsel has not
been requested and is not necessary. L.R. 7(c). For the reasons which follow, the Motion to Dismiss
Plaintiff’s Second Amended Complaint is granted due to lack of personal jurisdiction over
defendant.
II. BACKGROUND
Hawkeye Gold is an Iowa-based marketer of feed products. Dkt. 157 ¶ 6. Hawkeye Gold
entered into dozens of contracts over two years with Non-Metals Inc. (“Non-Metals”) for the
purchase of dried distiller’s grain with solubles (“DDGS”). Id. Sinoma is the principal and sole
shareholder of Non-Metals, a United States company. Id. A final purchase contract for DDGS was
entered into with Non-Metals in July 2014. Id. ¶ 8. Hawkeye Gold alleges that “[upon instruction
from Sinoma, Non-Metals repudiated and defaulted on the contract while part of the shipment was
on the water in route to China.” Id.
In July 2015, Hawkeye Gold brought a lawsuit against Non-Metals for breach of contract.
See Hawkeye Gold, LLC v. Non-Metals, Inc., Civil No. 4:15-cv-00230-REL-RAW (S.D. Iowa
2015) (“Hawkeye Gold I). Within its First Amended Complaint, Hawkeye Gold asserted the
following:
Non-Metals is an Arizona corporation with its principal place of business in
Bolingbrook, Illinois. Non-Metals is owned and, upon information and belief, at
minimum under certain influence of the Chinese National Materials Industry
Import and Export Corporation known as Sinoma (“Sinoma”).
Hawkeye Gold I, Dkt. 4 ¶ 2. In support of its claim for breach of contract, Hawkeye Gold alleged
the following facts:
Hawkeye Gold markets feed products produced by ethanol plants including dried
distillers grains with solubles (“DDGS”). Non-Metals is engaged in the business of
buying DDGS and, upon information and belief, has done so at least in part at the
request, and/or for the benefit, of Sinoma or one of its designees.
On or about July 22, 2014, Hawkeye Gold entered into the Contract with Non2

Metals for the sale of DDGS. . . .
Hawkeye Gold shipped several tons of DDGS to Non-Metals and, upon information
and belief, has did so at least in part at the request, and/or for the benefit, of Sinoma
or one of its designees. Non-Metals failed to pay invoices issued by Hawkeye Gold
totaling $737,048.05 relating to the DDGS in accordance with the Contract. . . .
Hawkeye Gold has made demand to Non-Metals for payment owed to Hawkeye
Gold under the terms of the Contract but no payment has been received.
Id. ¶¶ 5-8. For the elements of the claim, Hawkeye Gold alleged as follows:
A valid enforceable contract exists in the form of the Contract by and between
Hawkeye Gold and Non-Metals.
The terms and conditions of the Contract required Hawkeye Gold to deliver
shipments of DDGS to Non-Metals and for Non-Metals to make full payment to
Hawkeye Gold.
Hawkeye Gold has performed all the terms and conditions required under the
Contract including delivery or attempted delivery of the DDGS to Non-Metals
under the terms of the Contract.
Non-Metals breached the Contract in at least these particular ways, that is, by
refusing to accept delivery of the DDGS delivered or attempted to be delivered by
Hawkeye Gold pursuant to the Contract and further by failing to make payment in
the amount of $737,048.05 under invoices delivered to Non-Metals and due and
owing under the Contract.
Hawkeye Gold has suffered damages as a result of the breach of the Contract by
Non-Metals in the amount of $737,048.05 plus interest.
Id. ¶¶ 10-14. Sinoma was not named as a defendant in this lawsuit.
Non-Metals did not file an answer or otherwise respond to the complaint. Upon motion by
Hawkeye Gold, the Clerk of Court entered default against Non-Metals. Hawkeye Gold I, Dkt. 11.
Upon further motion by Hawkeye Gold, and order of the Court, default judgment was entered in
April 2016 “in favor of Hawkeye Gold, LLC. and against Non-Metals, Inc. in the total amount of
$748,103.69 representing the amount owed by Non-Metals, Inc. under contract and accrued
interest at the contract interest rate.” Hawkeye Gold I, Dkt. 21. Judgment was additionally entered
“for attorney fees and costs in the total amount of $8,089.07” plus post-judgment interest. Id.
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In June 2016, Hawkeye Gold initiated this present action with the filing of a Complaint
and Jury Demand against Sinoma. Dkt. 1. In this initial Complaint, Hawkeye Gold asserted:
Sinoma is a wholly-owned subsidiary, agency and instrumentality, and trade
platform of China National Materials Group Corporation Ltd. a/k/a Sinoma Group
(“Sinoma Group”). Sinoma Group, among other things, is engaged in international
trade and has subsidiaries or branches in more than 60 foreign countries or regions
including the United States. Sinoma is the principal and sole shareholder of NonMetals, Inc. (“Non-Metals”), an Arizona corporation serving as agent of Sinoma
with its principal place of business, upon information and belief, in Bolingbrook,
Illinois.
Id. ¶ 2. Hawkeye Gold further alleged:
Non-Metals on behalf of Sinoma entered into dozens of contracts over two years
with Hawkeye Gold for the purchase of dried distiller’s grain with solubles
(“DDGS”).
Sinoma employees were involved in either negotiating or executing the
performance of contracts for Non-Metals, upon information and belief, while acting
under the direction and control of Sinoma. Bills of lading, certificates of origin and
other shipping documents relating to the sale of DDGS from Hawkeye Gold to NonMetals expressly show the DDGS was for the benefit of Non-Metals’ principal,
Sinoma.
Hawkeye Gold executed its final purchase contract with Non-Metals on behalf of
Sinoma in July 2014. Upon instruction from Sinoma, Non-Metals repudiated and
defaulted on the contract while part of the shipment was on the water in route to
China. Hawkeye Gold demanded payment for DDGS under the contract. . . .
Hawkeye Gold brought suit against Non-Metals in this Court. Non-Metals
defaulted. This Court entered judgment in favor of Hawkeye Gold in the amount of
$756,192.76. The judgment remains unpaid.
Id. ¶¶ 11-14.
Hawkeye Gold indicated it “brought this action to recover the amount of the judgment plus
other relief from Sinoma as Non-Metals’ principal under the contract.” Id. ¶ 14. It is further stated:
The jurisdiction of this Court over Sinoma is governed by the Foreign Sovereign
Immunities Act, 28 U.S.C. §§ 1602–1611 (the “FSIA”) for the reason that, upon
information and belief, Sinoma is an “agency or instrumentality of a foreign state”
with “a majority of [its] shares or other ownership interest . . . owned by a foreign
state” pursuant to 28 U.S.C. § 1603(b)(2).

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Id. ¶ 3. Hawkeye Gold asserted a claim for breach of contract “executed by and between Hawkeye
Gold and Non-Metals, the latter acting on Sinoma’s behalf and subject to Sinoma’s control as its
agent.” Id. ¶ 28.
Due to issues with service of process and proceedings as to entry of default which was
ultimately set aside (Dkt. 97), Sinoma did not file an answer to the initial complaint until May
2021. In its Answer, Sinoma stated:
Sinoma admits that it is a company registered in China and a wholly-owned
subsidiary of China National Building Material Group Co. Ltd., which is 100%
owned by the Chinese central government. Sinoma admits Non-Metals Inc. (“NonMetals”), an Arizona company, was a wholly-owned subsidiary of Sinoma. Further,
Sinoma admits to the extent that Sinoma is engaged in international trade.
Dkt. 98 ¶ 2. Sinoma acknowledged Hawkeye Gold entered a contract with Non-Metals but
“specifically and expressly denies that Non-Metals was an agent of Sinoma.” Id. ¶ 4. As an
affirmative defense, Sinoma asserted “the Court lacks personal jurisdiction over Sinoma because
Sinoma did not have the minimum contact with the forum state, and the Complaint should therefore
be dismissed against the Sinoma under Rule 12(b)(2) of the Federal Rules of Civil Procedure.” Id.
p. 5. Sinoma also asserted Hawkeye Gold’s “claims are barred by the Foreign Sovereign
Immunities Act (“FSIA”) as Sinoma is an instrumentality of the Chinese government.” Id. Sinoma
further asserted, , inter alia, Hawkeye Gold’s “claims are barred by the Doctrine of Lack of Privity,
as Sinoma has never signed or executed any contract with Hawkeye [Gold]” and by judicial
estoppel. Id. pp. 6-7.
A Stipulation Regarding First Amended Complaint (Dkt. 109) was later filed by the parties
which stated as follows:
[Sinoma] has informed [Hawkeye Gold] it now seeks to remove and/or waive any
and all prior allegations or contentions made relating to the Foreign Sovereign
Immunity Act of 1976 (the “FSIA”), 28 U.S.C. §§ 1602-1611, and further
withdraws its affirmative defense based on the FSIA.

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Hawkeye Gold has prepared the attached proposed First Amended Complaint
(“FAC”) for filing solely as a result of Sinoma’s new information to Hawkeye Gold
regarding the FSIA. Sinoma stipulates, subject to the Court’s approval, to Hawkeye
Gold filing the FAC in the form of the pleading attached hereto as Exhibit 1 within
three (3) business days without the need to file a motion for leave to amend. Sinoma
further stipulates Hawkeye Gold should not be prejudiced by virtue of this
stipulation in the event it seeks leave to make further amendment to the FAC.
Neither Hawkeye Gold nor Sinoma, by entering into this Stipulation, is agreeing to
the truth of the matters alleged in any pleading filed by the other party.
Id. pp. 1-2. Given the stipulation of the parties, the Court granted Hawkeye Gold leave to file the
amended complaint. Dkt. 110.
Hawkeye Gold subsequently filed a First Amended Complaint and Jury Demand (Dkt. 111)
containing similar allegations and breach of contract claim as originally asserted but without
reference to FSIA. In Answer to the amended complaint, Sinoma again acknowledges Hawkeye
Gold executed the contract with Non-Metals but again “specifically and expressly denies that NonMetals was an agent of Sinoma.” Dkt. 112 ¶ 21. Sinoma reiterated affirmative defenses including
“that the Court lacks personal jurisdiction over Sinoma because Sinoma did not have the minimum
contact with the forum state, and the Complaint should therefore be dismissed against the Sinoma
under Rule 12(b)(2) of the Federal Rules of Civil Procedure,” Hawkeye Gold’s “claims are barred
by the Doctrine of Lack of Privity, as Sinoma has never signed or executed any contract with
Hawkeye [Gold]” and Hawkeye Gold’s “claims are barred by judicial estoppel.” Id. pp. 5-7.
Hawkeye Gold then filed a Motion for Leave to File Second Amended Complaint (Dkt.
116) and Simona filed a Motion for Judgment on the Pleadings (Dkt. 119). Hawkeye Gold
requested leave to file a second amended complaint to add factual allegations and legal claims for
punitive damages. Dkt. 116. Sinoma contended the case should be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and pursuant to Rule 12(c) for
judgment on the pleadings. Dkt. 119.
The Court granted Hawkeye Gold leave to file its second amended complaint. Dkt. 156.
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Sinoma’s Motion for Judgment on the Pleadings was denied, but without prejudice to reassert its
contentions against the second amended complaint. Id. Hawkeye Gold filed its Second Amended
Complaint and Jury Demand (Dkt. 157). Sinoma filed the Motion to Dismiss Plaintiff’s Second
Amended Complaint (Dkt. 164) which is now under consideration of the Court.
III. HAWKEYE GOLD’S SECOND AMENDED COMPLAINT
Hawkeye Gold’s Second Amended Complaint and Jury Demand (Dkt. 157) is similar to
its prior complaints. Hawkeye Gold again asserts as follows:
Sinoma is a wholly owned subsidiary and trade platform of China National
Materials Group Corporation Ltd. a/k/a Sinoma Group (“Sinoma Group”). Sinoma
Group, among other things, is engaged in international trade and has subsidiaries
or branches in more than 60 foreign countries or regions, including the United
States. Sinoma is the principal and sole shareholder of Non-Metals, Inc. (“NonMetals”), an Arizona corporation serving as agent of Sinoma with its principal place
of business, upon information and belief, in Bolingbrook, Illinois.
Id. ¶ 2. It is further asserted:
Venue is proper in this Court under 28 U.S.C. § 1391(a)(1) because Hawkeye Gold
resides in this district and Sinoma, through its agent Non-Metals, has conducted
business in this district. Venue also is proper in this Court under 28 U.S.C. §
1391(b)(3) because Sinoma is not a resident in the United States. Venue further is
proper under the forum-selection clause in the Contract at issue in this action
executed by Non-Metals in its capacity as an agent for its principal, Sinoma.
Id. ¶ 5. As an Introduction, Hawkeye Gold makes the following allegations:
Hawkeye Gold is an Iowa-based marketer of feed products. Sinoma is the principal
and sole shareholder of Non-Metals, a U.S. company previously engaged in
purchasing feed for Sinoma. Non-Metals, on behalf of Sinoma, entered into dozens
of contracts over two years with Hawkeye Gold for the purchase of dried distiller’s
grain with solubles (“DDGS”).
Sinoma employees were involved in either negotiating or executing the
performance of contracts for Non-Metals, upon information and belief, while acting
under the direction and control of Sinoma. Bills of lading, certificates of origin and
other shipping documents relating to the sale of DDGS from Hawkeye Gold to NonMetals expressly show the DDGS was for the benefit of Non-Metals’ principal,
Sinoma.
Hawkeye Gold executed its final purchase contract with Non-Metals on behalf of
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Sinoma in July 2014. Upon instruction from Sinoma, Non-Metals repudiated and
defaulted on the contract while part of the shipment was on the water in route to
China.
Id. ¶¶ 6-8.
Hawkeye Golds makes the following additional allegations as to the “relationship of
parties”:
Sinoma is the trade platform for Sinoma Group and is an integrative import and
export corporation with trade relationships with customers from more than 100
countries and regions in the world.
Upon information and belief, Sinoma is engaged in the business of buying DDGS
in the United States for shipment to China through Non-Metals, Sinoma’s agent
and subsidiary. Non-Metals engaged in buying and shipping DDGS on Sinoma’s
behalf. As Sinoma’s agent, Non-Metals procured essential materials from
American vendors on Sinoma’s behalf, including DDGS from Hawkeye Gold.
On or about July 22, 2014, Hawkeye Gold entered into the Contract. Jason Mao
(“Mao”), a Sinoma Feed Department Senior Manager (who later delivered his
business card to Hawkeye Gold in Iowa specifically identifying himself as a
Sinoma employee), negotiated the terms of the Contract with Hawkeye Gold’s
representative on behalf of Non-Metals. Mao entered into the Contract for the
purchase of DDGS from Hawkeye Gold to be produced or coordinated from
Hawkeye Gold’s headquarters in Iowa. At all relevant times, Non-Metals, upon
information and belief, acted with actual and apparent authority on Sinoma’s
behalf, for Sinoma’s objective benefit and under Sinoma’s control. . . .
The Contract does not specifically name or identify Sinoma as the principal, but
Hawkeye Gold had notice of Sinoma’s identity as Non-Metals’ principal. From
mid-2012 through fall 2014, Mao and others associated with Sinoma entered into
dozens of agreements with Hawkeye Gold for the purpose of purchasing DDGS for
Sinoma. In addition to Mao, Hawkeye Gold received a business card from Wei
Chao (“Chao”), a Sinoma employee who, upon information and belief, also was
involved in Non-Metals’ relationship with Hawkeye Gold. Further, Zonghuai Li is
a Sinoma Vice General Manager who served as President of Non-Metals in the
United States and, upon information and belief, also was involved with NonMetals’ relationship in purchasing DDGS from Hawkeye Gold for delivery to
Sinoma. Documentation delivered to Hawkeye Gold for the purchase of DDGS by
Non-Metals, including the first trade in mid-2012, identified Sinoma’s website and
telephone number in the signature block. Shipping documentation also listed
Sinoma as the known “consignee” for the “buyer” Non-Metals with regard to the
DDGS purchased from Hawkeye Gold for Sinoma. In short, that Non-Metals made
the Contract as Sinoma’s agent is ascertained by fair implication, from the relations
of the parties, the nature of the business of the agency, the service to be rendered,
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the purpose or transaction to be consummated and the other circumstances
surrounding Hawkeye Gold’s prior dealings with Non-Metals and Sinoma. . . .
The effect that Sinoma’s conduct and/or communications had on Hawkeye Gold,
and the actions of Sinoma as the principal, led Hawkeye Gold to act in good faith
on the reasonable presumption it was dealing with Sinoma’s agent. In contracting
with Hawkeye Gold, Non-Metals acted on authority as Sinoma’s agent (either
knowingly permitted by Sinoma or from authority Sinoma holds Non-Metals out
as possessing to others).
Id. ¶¶ 11-15. Hawkeye Gold further alleges the following events occurred:
Hawkeye Gold shipped approximately 1,000 tons of DDGS under the Contract via
a Bill of Lading designating Sinoma as the notifying party and including a
Certificate of Origin designating Sinoma as the consignee. A bill of lading operates
as both a receipt and a contract. A bill of lading on which a party is named as a
consignee binds that party to the agreement. Sinoma is bound to the Bill of Lading
through its agency relationship with Non-Metals, one of the contracting parties, as
an intended beneficiary of the Contract. . . .
On or about August 15, 2014, Sinoma informed Non-Metals through a business
letter dated August 15, 2014 (“August 15 letter”) a Chinese agency (China AQSIQ)
had “stopped the DDGS importing procession” and a Sinoma representative
instructed a Non-Metals representative to “pay much more attention to the ban and
. . . not ship the goods anymore” and further stated, “If not, there would be massive
loss for both you and me.” . . .
Under Sinoma’s direction, and as a result of the August 15 letter, upon information
and belief, Non-Metals repudiated and defaulted under the Contract while DDGS
shipped by Non-Metals was “on the water” in route to China. Sinoma through NonMetals also failed and refused to pay for DDGS purchased under the Contract but
not yet shipped.
Under Sinoma’s direction, and as a result of the August 15 letter, upon information
and belief, Non-Metals failed to pay invoices issued by Hawkeye Gold totaling
$737,048.05 relating to the DDGS, as required by and in accordance with the
Contract.
Hawkeye Gold made demand on Sinoma’s agent, Non-Metals, for payment owed
to Hawkeye Gold under the Contract, but no payment has been received by
Hawkeye Gold.
Id. ¶¶ 21-25.
With those allegations, Hawkeye Gold asserts the following claim of breach of contract
against Sinoma:
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The existence of a contract is shown by the Contract executed by and between
Hawkeye Gold and Non-Metals, the latter acting on Sinoma’s behalf and subject to
Sinoma’s control as its agent:
a. Agency between Sinoma and Non-Metals results from (1) manifestation
of consent by Sinoma, the principal, that another, Non-Metals, the
agent, shall act on the former’s behalf and subject to the former’s
control; and (2) consent by the latter, Non-Metals, to so act. Sinoma
manifested such consent, and Non-Metals consented to so act.
b. 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.
c. Alternatively, Non-Metals executed the Contract within the apparent
scope of authority conferred on it by its principal, Sinoma, binding
Sinoma to the Contract.
Hawkeye Gold has performed all the terms and conditions required under the
Contract, including delivery or attempted delivery of the DDGS to Sinoma’s agent,
Non-Metals.
Sinoma breached the Contract in a particular way, namely, by refusing through its
agent, Non-Metals, to accept delivery of the DDGS delivered or attempted to be
delivered by Hawkeye Gold pursuant to the Contract and further by failing to make,
or cause to be made, payment in the amount of $737,048.05 under invoices
delivered to Sinoma’s agent, Non-Metals, which amount became part of a judgment
of this Court and remains due and owing under the Contract.
Sinoma is liable to Hawkeye Gold for breach of contract and damages and harm
flowing from same as a result of Sinoma’s conduct, which authorizes Hawkeye
Gold to disregard the corporate entity of Non-Metals, whether as an alter ego, mere
instrumentality or other theory, including ratification or incorporation by reference.
Hawkeye Gold has suffered damages as a result of the breach of the Contract and
other conduct by Sinoma and its agent, Non-Metals, in the amount of $748,103.69,
including interest and attorney’s fees, which amount was conclusively established
by the judgment entered by Order of this Court against Sinoma’s agent, NonMetals, in Hawkeye Gold, LLC v. Non-Metals, Inc., 4:15-cv-00230-REL-RAW
(S.D. Iowa Jan. 27, 2015) (Longstaff, S.J.).
In the alternative, to the extent necessary, Non-Metals and Sinoma were not joint
contractors. Recovery of judgment against Non-Metals, agent of Sinoma, a
disclosed or partially disclosed principal, for failure of performance under the
Contract (to which Non-Metals, as the agent, is a party) does not thereby discharge
Sinoma’s liability as the principal.

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Id. ¶¶ 33-38. Hawkeye Gold seeks compensatory damages of at least $748,103.69 plus punitive
damages. Id. p. 13.
Attached to the Second Amended Complaint are copies of the July 22, 2014 Sales Contract
between Hawkeye Gold and Non-Metals, the business cards of Wei Chao and Jason Mao, the Bill
of Lading and Certificate of Origin, and the August 15, 2014 letter referred to within the
allegations. Id. pp. 15-22.
IV. SINOMA’S MOTION TO DISMISS SECOND AMENDED COMPLAINT
In the Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 164), Sinoma
contends this case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) for
lack of personal jurisdiction. Sinoma emphasizes it is a company registered and incorporated in
China with its principal place of business in Beijing; and has no offices or places of business in
Iowa, conducts no business in Iowa, and has no Iowa-based subsidiaries. Sinoma insists it lacks
sufficient contacts with Iowa for this Court to have personal jurisdiction. Sinoma also contends
the case should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. Sinoma asserts Hawkeye Gold’s claims are barred
by the doctrines of merger and res judicata/claim preclusion due to the entry of default judgment
obtained by Hawkeye Gold against Non-Metals.
In resistance (Dkt. 168), Hawkeye Gold first argues Sinoma waived its challenge to
personal jurisdiction. In turn, Hawkeye Gold asserts this Court has personal jurisdiction over
Sinoma due to sufficient contacts with Iowa. Hawkeye Gold also contends the doctrines of merger
and res judicata do not bar its claims.
A. Waiver
Hawkeye Gold contends Sinoma waived the defense of lack of personal jurisdiction when
it failed to raise it at the time Sinoma sought to set aside entry of default. Dkt. 168 pp. 5, 7-8.
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Sinoma contends the argument is factually and legally baseless. Dkt. 169 pp. 2-3. The Court is not
persuaded Sinoma waived its defense of personal jurisdiction.
Hawkeye Gold does not cite to precedential authority from the Court of Appeals for the
Eighth Circuit to support its argument. Nor does Hawkeye Gold cite to any rule of procedure. In
that regard, Federal Rule of Civil Procedure 12(b) provides as follows:
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following defenses
by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction;
(3) improper venue; (4) insufficient process; (5) insufficient service of process; (6)
failure to state a claim upon which relief can be granted; and (7) failure to join a
party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a
responsive pleading is allowed. If a pleading sets out a claim for relief that does not
require a responsive pleading, an opposing party may assert at trial any defense to
that claim. No defense or objection is waived by joining it with one or more other
defenses or objections in a responsive pleading or in a motion.
Fed. R. Civ. P. 12(b). Under Rule 12(h), a party waives a defense in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule
15(a)(1) as a matter of course.
Fed. R. Civ. P. 12(h)(1).
Sinoma explicitly asserted the defense of lack of personal jurisdiction in its Answers to
Hawkeye Gold’s initial Complaint and First Amended Complaint. Dkt. 98 p. 5; Dkt. 112 p. 5. In
response to Hawkeye Gold’s Second Amended Complaint, Sinoma filed the motion to dismiss
pursuant to Rule 12(b)(2) for lack of personal jurisdiction now before the Court. Given the
pleadings within this case, the Court is not convinced Sinoma waived the defense of lack of
personal jurisdiction.
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B. Personal Jurisdiction
“Personal jurisdiction over a defendant represents the power of a court to enter “‘a valid
judgment imposing a personal obligation or duty in favor of the plaintiff.’” Viasystems, Inc. v.
EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 592-93 (8th Cir. 2011) (quoting Kulko
v. Superior Court of Cal., 436 U.S. 84, 91 (1978)). “‘[T]hose who live or operate primarily outside
a State have a due process right not to be subjected to judgment in its courts as a general matter.’”
Pangaea, Inc. v. Flying Burrito LLC, 647 F.3d 741, 745 (8th Cir. 2011) (quoting J. McIntyre
Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011)). Here, Sinoma contends this Court within the
Southern District of Iowa lacks personal jurisdiction to enter a valid judgment against it and,
therefore, requests dismissal of the case. Hawkeye Gold contends Sinoma’s contacts with Iowa are
sufficient to establish personal jurisdiction and, therefore, urges the Court to deny Sinoma’s
motion.
1. Applicable Standards for Personal Jurisdiction
“To successfully survive a motion to dismiss challenging personal jurisdiction, a plaintiff
must make a prima facie showing of personal jurisdiction over the challenging defendant.”
Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir. 2014); see also, e.g., K-V Pharm.
Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591 (8th Cir. 2011); Viasystems, 646 F.3d at 592. The
“plaintiff’s prima facie showing ‘must be tested, not by the pleadings alone, but by affidavits and
exhibits supporting or opposing the motion.’” Fastpath, 760 F.3d at 820 (quoted citation omitted).
If there is no hearing held on the motion, the court “must view the evidence in a light most
favorable to the plaintiff and resolve factual conflicts in the plaintiff’s favor; however, the party
seeking to establish the court’s personal jurisdiction carries the burden of proof and that burden
does not shift to the party challenging jurisdiction.” Id.; see also, e.g., Kaliannan v. Liang, 2 F.4th
727, 733 (8th Cir. 2021), cert. denied, 142 S. Ct. 758 (2022); Whaley v. Esebag, 946 F.3d 447, 451
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(8th Cir. 2020); Aly v. Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 848 (8th Cir. 2017); KV Pharm., 648 F.3d at 592; Viasystems, 646 F.3d at 593.
The United States Supreme Court has identified two types of personal jurisdiction: specific
and general. See, e.g., Fastpath, 760 F.3d at 820 (quoting Viasystems, 646 F.3d at 593); Steinbuch
v. Cutler, 518 F.3d 580, 586 (8th Cir. 2008); Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 648
(8th Cir. 2003). “‘Specific jurisdiction refers to jurisdiction over causes of action arising from or
related to a defendant’s actions within the forum state.’” Fastpath, 760 F.3d at 820 (quoted
citations omitted). Specific jurisdiction “is appropriate only if the injury giving rise to the lawsuit
occurred within or had some connection to the forum state, meaning that the defendant purposely
directed its activities at the forum state and the claim arose out of or relates to those activities.”
Steinbuch, 518 F.3d at 586 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
General jurisdiction is “‘the power of a state to adjudicate any cause of action involving a particular
defendant, regardless of where the cause of action arose.’” Viasystems, 646 F.3d at 593 (quoted
citations omitted). “A state may exercise general jurisdiction if a defendant has carried on in the
forum state a continuous and systematic, even if limited, part of its general business; in such
circumstances the alleged injury need not have any connection with the forum state.” Steinbuch,
518 F.3d at 586. Here, Hawkeye Gold asserts Sinoma is subject to specific jurisdiction in Iowa.
“‘Specific personal jurisdiction can be exercised by a federal court in a diversity suit only
if authorized by the forum state’s long-arm statute and permitted by the Due Process Clause of the
Fourteenth Amendment.” Fastpath, 760 F.3d at 820 (quoting Dairy Farmers of America, Inc. v.
Bassett & Walker Int'l, Inc., 702 F.3d 472, 475 (8th Cir. 2012) (quoting Viasystems, 646 F.3d at
593)); see also, e.g., Morningside Church, Inc. v. Rutledge, 9 F.4th 615, 619 (8th Cir. 2021);
Federated Mut. Ins. Co. v. FedNat Holding Co., 928 F.3d 718, 720 (8th Cir. 2019); Creative
Calling Sols., Inc. v. LF Beauty Ltd., 799 F.3d 975, 979 (8th Cir. 2015); K-V Pharm., 648 F.3d at
14

592. “Because Iowa’s long-arm statute expands Iowa’s jurisdictional reach to the widest due
process parameters allowed by the United States Constitution, [the court’s] inquiry is limited to
whether the exercise of personal jurisdiction comports with due process.” Fastpath, 760 F.3d at
820 (internal quotation marks omitted) (quoting Wells Dairy, Inc. v. Food Movers Int'l, Inc., 607
F.3d 515, 518 (8th Cir. 2010) (quoting Hammond v. Florida Asset Fin. Corp., 695 N.W.2d 1, 5
(Iowa 2005))); see also Creative Calling, 799 F.3d at 979.
“‘Due process requires that a defendant have certain ‘minimum contacts’ with the forum
State for the State to exercise specific jurisdiction.’” Morningside Church, 9 F.4th at 619
(quoting Creative Calling, 799 F.3d at 980). As explained by the Eighth Circuit:
Due process requires that a non-resident have minimum contacts with the forum
state such that the maintenance of the lawsuit does not offend traditional notions of
fair play and substantial justice. World–Wide Volkswagen v. Woodson, 444 U.S.
286, 291–92, 100 S.Ct. 559, 564–65, 62 L.Ed.2d 490 (1980); Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Guinness
Import Co. v. Mark VII Distribs., Inc., 153 F.3d 607, 614 (8th Cir. 1998). Minimum
contacts is based on the notion that “those who live or operate primarily outside a
State have a due process right not to be subjected to judgment in its courts as a
general matter.” J. McIntyre Mach., Ltd. v. Nicastro, ––– U.S. ––––, 131 S.Ct.
2780, 2787, 180 L.Ed.2d 765 (2011). A defendant’s contacts with the forum state
must be sufficient so that a non-resident defendant should reasonably anticipate
being haled into court there. World–Wide Volkswagen, 444 U.S. at 297, 100 S.Ct.
at 567; Stanton v. St. Jude Med., Inc., 340 F.3d 690, 694 (8th Cir. 2003); Epps, 327
F.3d at 648. Sufficient 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.” J. McIntyre, 131 S.Ct.
at 2787 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2
L.Ed.2d 1283 (1958)); see Romak USA, Inc. v. Rich, 384 F.3d 979, 984 (8th Cir.
2004).
The “purposeful availment requirement ensures that a defendant will not be haled
into a jurisdiction solely as the result of random, fortuitous, or attenuated contacts
or of the unilateral activity of another party or a third person.” Stanton, 340 F.3d at
693–94 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174,
2183, 85 L.Ed.2d 528 (1985)). “For a State to exercise jurisdiction consistent with
due process, the defendant’s suit-related conduct must create a substantial
connection with the forum State.” Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115,
1121, 188 L.Ed.2d 12 (2014). This means that “the relationship must arise out of
contacts that the defendant himself creates with the forum State.” Id. at 1122
15

(quoting Burger King, 471 U.S. at 475, 105 S.Ct. at 2183–84). Contacts between
the plaintiff and the forum State do not satisfy this inquiry. Id. “Jurisdiction is
proper, however, where the contacts proximately result from actions by the
defendant himself that create a substantial connection with the forum
state.” Stanton, 340 F.3d at 694 (quoting Burger King, 471 U.S. at 475, 105 S.Ct.
at 2183–84).
Fastpath, 760 F.3d at 820-21; see also, e,g., Morningside Church, 9 F.4th at 619; Federated Mut.,
928 F.3d at 720; Creative Calling, 799 F.3d at 980; K-V Pharm., 648 F.3d at 592.
The following five factors are weighed to assess the defendant’s contacts with the forum
state:
“(1) the nature and quality of 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) [the] convenience of the
parties.”
Morningside Church, 9 F.4th at 619 (quoting Federated Mut., 928 F.3d at 720); see also, e.g.,
Kaliannan, 2 F.4th at 733; Aly, 864 F.3d at 849; Fastpath, 760 F.3d at 821; K-V Pharm., 648 F.3d
at 592; Steinbuch, 518 F.3d at 586. “The first three factors are ‘of primary importance,’ while the
fourth and fifth factors ‘carry less weight.’” Morningside Church, 9 F.4th at 620 (quoting Whaley,
946 F.3d at 452); see also Fastpath, 760 F.3d at 821 (“We give significant weight to the first three
factors.”). The factors are considered under the “totality of circumstances” to determine whether
personal jurisdiction exists. Kaliannan, 2 F.4th at 733 (quoting K-V Pharm., 648 F.3d at 592-93).
2. Contentions of the Parties
Sinoma maintains it did not act purposefully to avail itself of doing business within Iowa
and did not conduct activities within Iowa which constitute sufficient minimum contacts for
personal jurisdiction. Sinoma acknowledges Hawkeye Gold’s principal place of business for
selling DDGS is in Iowa. Sinoma further acknowledges one of Hawkeye Gold’s regular customers
was Sinoma’s wholly owned subsidiary Non-Metals which is based in the United States and with
which Hawkeye Gold entered dozens of contracts for the purchase and sale of DDGS between
16

2012 and 2014. This includes the contract at issue entered by Hawkeye Gold and Non-Metals on
July 22, 2014. Sinoma emphasizes, however, it was never a party to the contract with Hawkeye
Gold. Instead, “it only purchased feed from its Arizona subsidiary” Non-Metals. Dkt. 164-1 p. 17.
Sinoma notes it “is a company registered and incorporated in China; its principal place of
business is in Beijing; and it has no offices or places of business in Iowa and conducts no business
in Iowa and has no Iowa-based subsidiaries.” Id. p. 12. It is further noted:
Sinoma has never made any sales or purchases of products in the State of Iowa.
Sinoma’s corporate website is not aimed at Iowa. Sinoma has no employees or
contractors in Iowa, has no ownership or lease of real property there, has no assets
or bank accounts there, has no sales channels or personnel in Iowa, and has not
advertised or marketed there. Further, Sinoma is not licensed to do business in Iowa
and has no registered agent in Iowa.
Id. pp. 12-13 (internal citations to record omitted). As explained by Sinoma, “[t]he only visits
made to Iowa by Sinoma employees were only one day each on three occasions: in 2012 and 2013
to inspect product quality as the buyer from Non-Metals, and in 2015 after the contract to try to
help settle the dispute after it arose.” Id. p. 13. Sinoma insists the 2012 and 2013 visits to Iowa and
exchange of business cards were not related to the July 22, 2014 contract at issue and therefore
such “contacts” have no bearing on establishing specific personal jurisdiction. Id. p. 18.
In addition, Sinoma refutes Hawkeye Gold’s repeated allegations within the Second
Amended Complaint of an agency relationship between Sinoma and Non-Metals:
[T]he evidence here is clear that Sinoma maintained its corporate formalities,
financial affairs, and corporate records completely separate from those of NonMetals—Non-Metals was duly registered in Arizona and Illinois; Non-Metals
operated under its own by-laws and had separate officers; Non-Metals had its own
bank accounts and no funds were commingled; and Non-Metals had its own
employees and filed its own taxes.
Id. p. 14. Regarding Jason Mao’s role, Sinoma contends as follows:
at the time Jason Mao negotiated the Contract for the sale of feed at issue with
[Hawkeye Gold] in May 2014, he was a Non-Metals’ employee and used his NonMetals email account to communicate with [Hawkeye Gold]; and only after certain
17

visa issues arose, did he go to work for Sinoma, in or about August 2014.
Id. p. 17. In sum, Sinoma argues:
given the circumstances in this Action—a Chinese company that has no presence
in Iowa, conducts no business directed at Iowa, is located six thousand miles away
from Iowa, and was merely an arm’s-length buyer from one of its non-Iowa
subsidiaries who entered into a single purportedly “breached” contract with an Iowa
entity—Sinoma respectfully submits that it would be unfair and unjust to assert
personal jurisdiction over Sinoma in this matter.
Id. p. 19.
Hawkeye Gold, on the other hand, insists Sinoma’s contacts with Iowa are sufficient to
establish specific personal jurisdiction. Dkt. 168 pp. 8-14. Hawkeye Gold notes the visits of
Sinoma employees to Iowa:
Sinoma admits it “sent employees to visit” Hawkeye Gold in “Iowa in 2012 and
2013”. Those visits were “[b]ecause of the large amount of DDGS that Non-Metals
bought from Hawkeye [Gold] and resold to Sinoma”. And “[i]n or around 2012,
Ying Li,” also a Sinoma manager, “visited Iowa to check [Hawkeye Gold’s]
qualification and quality of products”; and “[i]n or around 2013, Zonghuai Li and
Jason Mao [also] visited Iowa” to do the same.
Sinoma further admits it later sent two Sinoma employees to Iowa in April 2015 to
meet with Hawkeye Gold representatives. Early in this litigation, Sinoma stated its
representatives “went to Iowa in 2015 to explain the reasons that Non-Metals
refused to accept the partial shipment from Hawkeye and why the Contract should
be cancelled”. In support of Sinoma’s motion, Sinoma now claims the two Sinoma
representatives (Jason Mao and Chao Wei) visited for the sole purpose of
attempting “to settle the matter” involving the Contract. While Hawkeye Gold
agreed to meet with Sinoma representatives for settlement in light of the huge loss
it suffered, Sinoma had broader plans for the meeting with Hawkeye Gold, namely,
“to discuss the DDGS trade collaboration, develop a feasibility plan for later
partnership, conduct [a] site visit to assess the company, and evaluate its storage
and logistic facilities”.
Id. p. 10 (internal citations to record omitted).
In this regard, Hawkeye Gold maintains the role of Jason Mao was significant and
misrepresented by Sinoma:
As an initial matter, [Sinoma does not deny] Mao negotiated contracts with
Hawkeye Gold in 2014 and that Mao’s name is typewritten in the Contract. . . .
18

Sinoma produced an employment agreement with Mao identifying Mao as Senior
Manager of Feed Department at Sinoma from 2012 to 2015. Despite the
representations that Mao worked for Non-Metals in 2014, the employment contract
is with Sinoma only, without any mention of Non-Metals . . . .
Id. p. 11 (internal citations to record omitted).
Hawkeye Gold asserts “Mao’s employment with Sinoma also is confirmed by emails
delivered by Mao to Hawkeye Gold in each of 2013, 2014, and 2015, using Mao’s Sinoma email
address ([e-mail]) under the title “Senior Manager” of the “Feed Dept, Sinoma”. Id.
p. 12. From the perspective of Hawkeye Gold:
Sinoma’s senior manager, Mao, not only visited Hawkeye Gold on several
occasions, negotiated the Contract, and had communications with Hawkeye Gold
as a Sinoma manager in each of 2013, 2014, and 2015, Sinoma admits Mao also
was a Sinoma representative who was asked on at least two occasions to resolve
Non-Metals’ disputes with Hawkeye Gold[.]
Id. p. 13.
Hawkeye Gold argues all the factors to be considered “in determining whether minimum
contacts have been met clearly weigh in favor of personal jurisdiction over Sinoma.” Id. p. 14. In
Hawkeye Gold’s view, “[t]he nature and quality, and quantity, of Sinoma’s contacts with Iowa are
substantial and relate to Hawkeye Gold’s cause of action; Iowa has an interest in providing a forum
for its resident; and the convenience of the forum was negotiated in the Contract.” Id.
In addition, Hawkeye Gold argues personal jurisdiction is properly asserted over Sinoma
because Non-Metals was acting as its agent or Sinoma’s alter-ego. Id. pp. 14-16. In support,
Hawkeye Gold primarily cites to several allegations within its Second Amended Complaint. Id.
pp. 14-16. Hawkeye Gold notes such allegations, “construed in favor of Hawkeye Gold, are
sufficient for notice pleading of these claims.” Id. p. 16 n. 10. Hawkeye Gold also refers to a
Sinoma brochure listing Non-Metals as a “branch” in Sinoma’s organization structure and a report
by a designated expert witness of Hawkeye Gold analyzing the principal-agent relationship and

19

piercing the corporate veil issues under Chinese law. Id. p. 16; see Dkt 168-1 pp. 13, 43-55.
Hawkeye Gold asserts “Sinoma has made misleading statements and engaged in
misdirection relating to its corporate affiliations.” Dkt. 168 p. 17. Thus, Hawkeye Gold suggests
“traditional notions of fair play and substantial justice” would not be offended by exercising
personal jurisdiction over Sinoma in this case.
In reply, Sinoma insists Hawkeye Gold overstates the evidence and significance of the
Iowa visits and Jason Mao’s employment status and email. Dkt. 169 pp. 3-5. Sinoma refers to the
testimony of Zonghuai Li who was deposed as a Rule 30(b)(d) designated witness by Sinoma. Id.
pp. 4-5. Li indicated he had been the general manager of Non-Metals and acknowledged Mao
negotiated the July 22, 2014 contract with Hawkeye Gold. Dkt. 169-4 p. 3. At the time of the
deposition, Li was employed with Sinoma as a vice general manager for business development
and human resources. Id. Li testified as follows in response to questioning about Mao’s
employment:
Q Was Jason Mao employed by Sinoma in 2013?
A I think so.
Q Was Jason Mao employed by Sinoma in 2014?
A No. He worked for the US company. He was the staff of the US company. He
worked for Non-Metals.
Q Do you know whether Jason Mao ever worked at Sinoma in 2014?
A . . . Regarding his situation, since I went to the US company, I was taking over
Peter Wu’s role. And also my English was not very good. In terms of business, I
had to work together with Jason Mao to take over the Non-Metals business. So he
and me, we both went to Non-Metals. However, in August, due to visa issues, Jason
Mao returned to Sinoma.
Q Were you aware that Jason Mao was an employee of Non-Metals in January of
2014?
***
A Well, in January when he arrived in the US, when he arrives at Non-Metals, he
20

was the employee of Non-Metals.
Q Was Jason Mao an employee of Non-Metals in 2015?
***
A As I mentioned earlier, after August 2014 he returned to Sinoma, so he was the
staff of Sinoma.
Id. pp. 4-5. Sinoma also submitted an affidavit of Zonghuai Li wherein he states:
[An] issue I have been asked to address is whether Jason Mao was a Sinoma
employee at any time that he negotiated the contract at issue in this case. He was
not.
Mr. Mao signed an employment contract with Sinoma in 2012, and although the
term of his contract was for three years (from 2012 to 2015), Mr. Mao transferred
to Non-Metals in January 2014, when I began work at Non-Metals and needed
someone familiar with the business to assist me.
Mr. Mao sent an email message to [Hawkeye Gold’s] employees using a Sinoma
email address on January 3, 2014. I am advised that [Hawkeye Gold] asserts that
this message proves Mr. Mao must have been a Sinoma employee when he
negotiated the contract between [Hawkeye Gold] and Non-Metals that was
executed on July 22, 2014.
Had I been asked about this matter during my deposition in this case several weeks
ago, I would have explained that Mr. Mao did not begin work for Non-Metals until
he arrived in the United States to work with me later in January 2014, and that Mr.
Mao did not negotiate the contact at issue in this case while he was a Sinoma
employee.
Dkt. 169-7 ¶¶ 4-7.
Sinoma also argues Hawkeye Gold has presented no evidence to support a theory of
piercing the corporate veil to establish personal jurisdiction in this case. Dkt. 169 p. 5. According
to Zonghuai Li, “Sinoma purchased [DDGS] from Non-Metals.” Dkt. 169-4 p. 5. Li also explains
the term “branch” utilized within the brochure which Hawkeye Gold relies upon:
The brochure . . . uses a word that translates to “branch” in English in reference to
several companies (i.e., Sinoma International Trade Company Limited, Tianjin Shi
Yuan Fuel Material Company Limited, Shenzhen Branch, Non-Metals, Inc.), but
the brochure also states that Sinoma had only three offices, which were located in
Japan, Guangzhou and Qingdao, whereas Non-Metals was located in the United
States and was not a branch of Sinoma. That is made clear on the next page
(CHOW004729), which states that “[o]n June 8, 1993, Non-Metals, Inc. was
21

registered in the United States as a subsidiary wholly owned by China National
Nonmetallic Minerals Industry Import & Export Corporation.” On or about August
2009, China National NonMetallic Minerals Industrial Import & Export Corp.
transferred Non-Metals to Sinoma in exchange of forgiveness of a loan. Thereafter,
Non-Metals became a subsidiary wholly owned by Sinoma.
Id. ¶ 3.
In a sur-reply, Hawkeye Gold emphasizes the requisite evidentiary showing is minimal and
the evidence must be viewed in its favor, including Zonghuai Li’s testimony. Dkt. 173 pp. 2-3.
From Hawkeye Gold’s perspective, “evidence that multiple Sinoma employees traveled to Iowa
to meet with Hawkeye Gold in connection with DDGS, and that 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.” Id.
3. Decision of the Court
This Court has fully considered the submissions and arguments of the parties. And as
required, the Court 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. Consideration
of the applicable five factors under the totality of the circumstances in this particular case weigh
against this Court exercising personal jurisdiction over Sinoma as to the cause of action asserted
by Hawkeye Gold.
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.
Notably, both parties submitted portions of testimony by Mark Neher, a representative of
Hawkeye Gold involved in the contracts with Non-Metals. Dkt. 168-1 pp. 28-35; Dkt. 169-6.
22

Neher repeatedly referred to Non-Metals as a “buying office for Sinoma” and acknowledged:
“Non-Metals was the party on the contract”; “Non-Metals . . . is wholly owned by Sinoma”; and
“Non-Metals is a subsidiary or wholly owned by Sinoma and it was in the United States. So . . .
we recognize that there is a legal difference there.” Dkt. 169-6 p. 3. When asked in part whether
“Non-Metals was the company that you were doing business with and selling all of its DDGS to
Sinoma,” Neher responded “I believe you got it correct.” Id. p. 5. Such testimony, in the reading
of this Court, does not undermine but confirms Non-Metals was the corporate entity in contract
with Hawkeye Gold, not Sinoma.
But even if Sinoma had been a party to the contract, “[m]erely entering into a contract with
a forum resident does not provide the requisite contacts between a defendant and the forum state.”
Iowa Elec. Light & Power Co. v. Atlas Corp., 603 F.2d 1301, 1303 (8th Cir. 1979). “This is
particularly true when all elements of the defendant’s performance are to take place outside of the
forum state.” Id. at 1303-04. As further explained by the Eighth Circuit:
“A contract between a plaintiff and an out-of-state defendant is not sufficient in and
of itself to establish personal jurisdiction over the defendant in the plaintiff’s forum
state.” [K–V Pharm., 648 F.3d at 593] (citing Burger King, 471 U.S. at 478–79, 105
S.Ct. at 2185). “Personal jurisdiction, moreover, does not turn on mechanical tests
or on conceptualistic theories of the place of contracting or of
performance.” Id. (quoting Burger King, 471 U.S. at 478–79, 105 S.Ct. at 2185).
Fastpath, 760 F.3d at 821, 824 n. 4 (“even if the contract had been formed in Iowa . . . that would
not vest Iowa courts with personal jurisdiction over” defendant); see also Henry L. Firm v. Cuker
Interactive, LLC, 950 F.3d 528, 532 (8th Cir. 2020) (“A defendant does not subject itself to
jurisdiction in a forum state by merely contracting with a resident of that state.”); Creative Calling,
799 F.3d at 980 (“[A] contract with a citizen of a State alone is insufficient to establish minimum
contacts with that forum.”).
“To determine whether a defendant purposefully established minimum contacts with the

23

forum, [the court] must evaluate ‘prior negotiations and contemplated future consequences, along
with the terms of the contract and the parties’ actual course of dealing.’” Creative Calling, 799
F.3d at 980 (quoting Burger King, 471 U.S. at 479); see also Fastpath, 760 F.3d at 821 (“[C]ourts
should consider the terms of the contract and its contemplated future consequences in determining
whether personal jurisdiction over a non-resident defendant exists.”). “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). The 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. Again, resolution of
Mao’s role and employment in favor of Hawkeye Gold does not cure the deficiency in evidence
in this regard.
The visits to Iowa by Sinoma employees fail to sufficiently support personal jurisdiction
over Sinoma because the visits were limited in number and lack quality in relation to the cause of
action brought by Hawkeye Gold. Based on evidence in the record before the Court, the nature
and quantity of the visits by Sinoma employees are too attenuated from Hawkeye Gold’s claim for
breach of the July 22, 2014 contract with Non-Metals. See Sybaritic, Inc. v. Interport Int'l, Inc.,
957 F.2d 522, 525 (8th Cir. 1992) (“Viewing the facts in the light most favorable to [plaintiff], . .
. [defendant’s] contacts with the forum State, including [its president’s] trip to Minnesota and the
subsequent telephone and mail communications between [defendant] in California and [plaintiff]
in Minnesota, were too few in number and too attenuated from the cause of action to support
jurisdiction.”; affirming dismissal for lack of personal jurisdiction). The visits, even when viewed
in favor of Hawkeye Gold, do not create a substantial connection between Sinoma and the state of
Iowa nor do they establish Sinoma purposely availed itself of the privilege of conducting activities
24

within Iowa thereby subjecting Sinoma to the jurisdiction of Iowa courts.
The Iowa visit in 2015 also fails to support personal jurisdiction over Sinoma under
guidance of the Eighth Circuit. “[C]ourts have hesitated to use unsuccessful settlement discussions
as ‘contacts’ for jurisdictional purposes.” Digi–Tel Holdings, Inc. v. Proteq Telecomms. (PTE),
Ltd., 89 F.3d 519, 524 (8th Cir. 1996). As explained by the Eighth Circuit, “[g]iving jurisdictional
significance to such activities may work against public policy by hindering the settlement of
claims.” Id. at 525. Moreover, the nature of the 2015 visit, even when viewed in favor of Hawkeye
Gold, does not show Sinoma purposely availed itself of the privilege of conducting activities
within Iowa or created a strong connection with Iowa.
Similarly, under Eighth Circuit precedent, the email referred to by Hawkeye Gold is
insufficient in number and nature to establish personal jurisdiction over Sinoma. See Fastpath, 760
F.3d at 823-24 (some emails and phone calls from defendant to plaintiff in Iowa insufficient to
establish personal jurisdiction); Viasystems, 646 F.3d at 593-94 (affirming dismissal for lack of
personal jurisdiction because defendant’s contacts consisting of scattered emails, phone calls and
wire-transfer to forum state “are not sufficient to surmount the due-process threshold”); Digi–Tel
Holdings, 89 F.3d at 523 (affirming dismissal for lack of personal jurisdiction where defendant’s
contacts with forum state consisted of “numerous letters and faxes and . . . several telephone calls”
in connection with the contract in dispute).
Hawkeye Gold’s reference to the contract’s choice of forum provision also lacks weight to
support personal jurisdiction over Sinoma. It is well-established that “although a choice-of-law
provision may be considered for jurisdictional purposes . . . it is insufficient in itself to confer
jurisdiction.” Digi–Tel Holdings, 89 F.3d at 523; see also Federated Mut., 928 F.3d at 721
(“‘[C]hoice-of-law provisions specifying that the forum state’s laws govern are insufficient on
their own to confer personal jurisdiction.’” (quoting K-V Pharm., 648 F.3d at 594)); Creative
25

Calling, 799 F.3d at 982 (forum selection clause “does not impact significantly” whether federal
court may assume personal jurisdiction). Moreover, again, Sinoma was not a party to the contract
containing the choice-of-law provision.
Under the totality of circumstances in this particular case, and upon viewing the evidence
in a light most favorable to Hawkeye Gold, this Court finds the contacts between Sinoma and Iowa
are not sufficient to comport with due process. In the opinion of this Court, the nature, quality and
quantity of Sinoma’s contacts with Iowa, and the relation of those contacts to Hawkeye Gold’s
asserted claims, do not sufficiently support this Court exercising specific personal jurisdiction over
Sinoma. While Iowa has an interest in providing a forum for residents such as Hawkeye Gold to
litigate its contractual disputes, the submitted evidence establishes Sinoma was not a party to the
contract, including the testimony of Hawkeye Gold’s own representative. And as to convenience
of the parties, such consideration carries equal weight for the parties if not in favor of Sinoma as a
registered Chinese company with its principal place of business in Beijing and with no offices or
places of business in Iowa and no Iowa-based subsidiaries.
Hawkeye Gold’s repeated allegations of an agency relationship between Non-Metals and
Sinoma also fail to establish a prima facie case of personal jurisdiction over Sinoma. Contrary to
Hawkeye Gold’s suggestion, mere “notice pleading” is not sufficient. Instead, according to the
Eighth Circuit, the “prima facie showing ‘must be tested, not by the pleadings alone, but by
affidavits and exhibits supporting or opposing the motion.’” Fastpath, 760 F.3d at 820 (quoted
citation omitted). Doing so here, the submitted evidentiary materials fail to sufficiently support
Hawkeye Gold’s allegation of an alter-ego relationship between Non-Metals and Sinoma for this
Court to exercise personal jurisdiction over Sinoma.
The evidence before this Court establishes Non-Metals was a wholly owned subsidiary of
Sinoma. But “[w]hether a subsidiary is subject to personal jurisdiction in the state has no effect on
26

the jurisdictional inquiry regarding its parent.” Steinbuch, 518 F.3d at 589. “‘A corporation is not
doing business in a state merely by the presence of its wholly owned subsidiary.’” Epps, 327 F.3d
at 649 (quoting Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519
F.2d 634, 637 (8th Cir. 1975)). As explained by the Eighth Circuit,
[its] 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, 646 F.3d at 596 (quoting Epps, 327 F.3d at 648-49). Accordingly, “[b]efore a party
may obtain personal jurisdiction over a parent company, the plaintiff must show that the parent
dominates and controls the subsidiary; mere ownership of subsidiary is insufficient to justify
personal jurisdiction.” Steinbuch, 518 F.3d at 589 (citing Epps, 327 F.3d at 648-49).
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.
Mere conclusory allegations within the complaint are not sufficient. The materials attached to
Hawkeye Gold’s complaint and submitted with its resistance do not show Non-Metals was an alter
ego of Sinoma. 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.
Moreover, Hawkeye Gold’s representative’s own testimony is consistent with, not contrary to, this
parent/subsidiary corporate structure. As emphasized by the Eighth Circuit, “we have always
required a degree of control and domination by the parent corporation” for “a subsidiary’s contacts
with the forum state” to be attributed to the parent corporation. Viasystems, 646 F.3d at 596.
Hawkeye Gold falls short of presenting such evidence to this Court.
On a final point, “[e]ven if the defendant has purposefully established the necessary
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‘minimum contacts’ within the forum State, consideration of ‘fair play and substantial justice’ may
nevertheless defeat the reasonableness of jurisdiction.” Sybaritic, Inc., 957 F.2d at 524 (quoting
Burger King, 471 U.S. at 476-78); see also Creative Calling, 799 F.3d at 981 (“Even where a party
has minimum contacts with a forum, jurisdiction can still be unreasonable.”). “‘[C]ritical to due
process analysis . . . is that the defendant’s conduct and connection with the forum [s]tate are such
that he should reasonably anticipate being haled into court there.’” Kaliannan, 2 F.4th at 733
(quoting citations omitted). “The Due Process Clause forbids the exercise of personal jurisdiction
under circumstances that would offend traditional notions of fair play and substantial justice.”
Creative Calling, 799 F.3d at 981-82 (internal quotation marks omitted) (quoting Asahi Metal
Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987) (citing Int’l Shoe Co. v. Washington, 326
U.S. 310, 316, 66 (1945))). To assess whether the exercise of jurisdiction over a foreign defendant
is reasonable, the court “considers the interests of the forum State, the burden on the defendant,
and the plaintiff’s interest in obtaining relief.” Id. at 982. As further emphasized, “‘[g]reat care and
reserve should be exercised when extending our notions of personal jurisdiction into the
international field.’” Id. (quoting Asahi Metal Indus., 480 U.S. at 115); Digi–Tel Holdings, 89 F.3d
at 525 (same).
Doing so here, this Court finds the notions of fair play and substantial justice of due process
disfavors the exercise of personal jurisdiction over Sinoma under the particular circumstances of
this case. Iowa certainly has an “‘interest in providing a local forum in which its residents may
litigate claims.’” Creative Calling, 799 F.3d at 982 (quoting Digi–Tel Holdings, 89 F.3d at 525).
But, as noted by Sinoma, Hawkeye Gold has already brought an action within Iowa and obtained
a judgment from this Court on the claim for breach of contract being asserted in this case. In
contrast, Sinoma emphasizes the burden it faces as a company in China to litigate this matter in
Iowa. In the words of the United States Supreme Court, “[t]he unique burdens placed upon one
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who must defend oneself in a foreign legal system should have significant weight in assessing the
reasonableness of stretching the long arm of personal jurisdiction over national borders.” Asahi
Metal Indus., 480 U.S. at 114.
For those reasons, even upon viewing the evidence in the most favorable light, Hawkeye
Gold has not carried its burden of making a prima facie showing this Court has personal
jurisdiction over Sinoma in this action. The requisite minimum contacts to comport with the
constitutional requirements of due process are not present in the evidentiary record before the
Court.
C. Doctrines of Merger and Res Judicata/Claim Preclusion
Because the Court lacks personal jurisdiction over Sinoma, the motion as to application of
the doctrines of merger and res judicata/claim preclusion barring Hawkeye Gold’s claims is
rendered moot.
V. CONCLUSION
As set forth above, the Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt.
164) filed by defendant China National Materials Industry Import and Export Corporation d/b/a
Sinoma shall be, and is hereby, granted. Because this Court lacks personal jurisdiction over
defendant, this case must be dismissed.
IT IS SO ORDERED.
Dated July 25, 2022.

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