United States Court of Appeals

For the Eighth Circuit 

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No. 20-2474

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Ascente Business Consulting, LLC, doing business as LIBERTYID

 Plaintiff - Appellant

v.

DR myCommerce, doing business as eSellerate; Digital River, Inc.

 Defendants - Appellees

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Appeal from United States District Court 

for the District of Minnesota

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Submitted: May 12, 2021

Filed: August 18, 2021 

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Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges. 

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GRASZ, Circuit Judge.

Ascente Business Consulting, LLC hired DR myCommerce to build a web 

portal so that Ascente could sell its identity-theft-protection services to consumers. 

When the portal fell below Ascente’s expectations, it sued DR myCommerce and its 

parent company, Digital River, Inc. (collectively, “Digital River”), for Minnesota 
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contract, fraud, and fraud-adjacent claims. Ascente challenges the district court’s1

futility-based denial of its motion to amend some claims and the adverse grant of 

summary judgment on others. We affirm.

I. Background

Ascente hired Digital River to build a customer-facing web portal. In May 

2014, Ascente agreed to pay Digital River $73 per hour ($44,822 total) for its 

services with a launch set for early October 2014, as set out in the First Statement of 

Work. But setbacks twice delayed the launch. In a Second Statement of Work, 

Digital River split the remaining tasks into two phases, prioritizing pre-launch tasks 

over post-launch ones.

Eventually, the portal launched on October 29, 2014. The same day, Travis 

Mills (Ascente’s President) “agree[d] and acknowledge[d]” that: (1) the portal 

“satisfie[d] all requirements set forth in the Implementation Specifications”; 

(2) Digital River “met its obligations with regard to the implementation of” the 

portal; and (3) Ascente “approved” the portal and its launch. 

Yet by December 2014, Ascente found problems with the portal. For 

example, if a customer tried to create an account to buy the identity-theft-protection 

services but exited before entering payment information, the customer could not ever 

buy the services on return visits unless Digital River stepped in to help. And even 

if a customer checked out, the portal “put [the customer’s] personal data at risk.” 

Ascente also learned that multiple post-launch tasks remained unfinished.

The next month, the parties planned to meet in Denver to discuss Digital 

River’s cost overruns. Before the meeting, Chad Johnson (Digital River) sent 

Ascente an agenda outlining “the current status of our partnership,” stating: 

1

The Honorable Joan N. Ericksen, United States District Judge for the District 

of Minnesota, affirming the order of the Honorable Katherine Menendez, United 

States Magistrate Judge for the District of Minnesota. 
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a. Contract Date: 5/22/14 (2 year)

b. Site Live: 10/29/14

c. Digital River build hours YTD: 3180.25 @ $73 hr = $232,158.25

d. Ascente initial build fees invoiced: $44,822 (invoiced and scheduled 

for payment)

e. Total orders YTD: 28

f. Total Gross Revenue YTD: $2950.90 

Ex. 27, ECF No. 98-4 at 35.

At the Denver meeting, representatives from Ascente (Mills and two 

consultants, Bret Busse and Elizabeth Sipple) and Digital River (Johnson and 

Rodney Salazar) discussed the portal’s status. Tracking its agenda, Digital River 

explained that the portal’s build time (and thus, its fees) ran over the budget by 

$187,336.25. Ascente agreed to pay those fees. In exchange, Digital River agreed 

to: (1) deliver the portal’s source code (the portal’s software in its computerprogramming language); and (2) complete the web-portal-specific services from the 

existing Statements of Work. The parties planned to ink those terms in a Software 

Development Agreement.

In February 2015, when Digital River sent its invoice, it excluded the hours 

worked and the hourly rate. Digital River’s purposeful exclusion stemmed from a

debate between Johnson and his colleague Jennifer Manwarren over a two-dollar 

difference in the hourly rate. Manwarren stated that she used “wild math” to reverse 

engineer the invoice.

In July 2015, the parties signed the Software Development Agreement. While 

the district court sealed that agreement, we describe relevant terms in a general way 

to give some context for the contract that Digital River allegedly breached.

Under that agreement, Digital River needed to “develop Software and provide 

services . . . (collectively, the ‘Services’)[.]” “Software” meant a “[c]ustomer-facing 
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Web portal supporting an identity monitoring subscription service[.]” The 

agreement listed Software as one of the “Deliverables” that Digital River needed to

“deliver or otherwise make available to [Ascente][.]” In very similar terms, the 

parties twice equated the Software’s acceptance with Ascente’s receipt of the 

Software. 

Still within the Software Development Agreement, the Scope-of-Services 

provision explained that through the Software, after “[c]ustomers enter[ed] the data 

they wish to have monitored[,]” the data would be “supplied to a third party identity 

monitoring service[.]” Another company would send emails. “In addition to” those 

duties, “the Scope of Services expressly include[d] the scope” from the earlier 

Statements of Work but “relating to the Web Portal only.” But Digital River would 

have “no obligation to modify, fix, correct, update, enhance, or otherwise maintain 

the Software.”

Beyond that limitation, the parties agreed that Digital River would provide 

“ALL SOFTWARE, SERVICES AND WORK PRODUCT . . . ‘AS IS[.]’” And, 

after generally “DISCLAIM[ING] ALL WARRANTIES,” the agreement expressly 

stated that Digital River:

MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE 

OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF 

THE USE THEREOF, WILL MEET [ASCENTE’S]

. . . REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, 

ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR 

WORK WITH ANY SOFTWARE, SYSTEM OR OTHER 

SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF 

HARMFUL CODE OR ERROR FREE. 

Ex. B, ECF No. 24 at 6.

In April 2016, Ascente finished paying Digital River. After Ascente spent 

months refusing to accept the Software’s source code, Digital River delivered it via 

flash drive in November 2016. Fourteen months later, Ascente sued. 
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At the pleading stage, the district court dismissed Ascente’s fraud and fraudadjacent claims but not the contract claim. Discovery revealed Digital River’s 

internal communications about Ascente, the parties’ working relationship, and the 

portal.

2

 Based on those revelations, Ascente asked to amend its fraud, fraudulentinducement, and reckless-misrepresentation claims.

The magistrate judge considered some internal Digital River emails as 

embraced by the pleadings. The magistrate judge concluded, and the district court 

agreed, that futility barred Ascente from amending everything except one 

fraudulent-inducement claim. But that claim did not survive summary judgment. 

Nor did Ascente’s contract claim.

II. Discussion

Now, Ascente asks us to reverse the leave-to-amend denial and the adverse 

grant of summary judgment.

A. Leave to Amend

Ordinarily we review leave-to-amend denials for an abuse of discretion, but 

we review legal conclusions de novo. U.S. ex rel. Raynor v. Nat’l Rural Utils. Coop. 

Fin., Corp., 690 F.3d 951, 957 (8th Cir. 2012). A futility-based leave denial “means 

the district court has reached the legal conclusion that [Ascente’s] amended 

complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure.” Munro v. Lucy Activewear, Inc., 899 F.3d 585, 

589 (8th Cir. 2018) (quoting Cornelia I. Crowell GST Tr. v. Possis Med., Inc., 519 

F.3d 778, 782 (8th Cir. 2008)). Taking Ascente’s allegations as true and construing

2

The emails showed that pre-launch, some Digital River employees saw the 

then-existing software flaws as fatal. Employees also joked about and flouted postlaunch tasks. And during the Denver meeting, Digital River’s employees (who did 

not attend the meeting) openly rooted for their company to cut ties with Ascente.
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all reasonable inferences in its favor, we will reverse if it can show that its proposed 

amendments could have saved its otherwise meritless claims. See id. 

Ascente asks us to reverse the district court’s futility-based leave denials of

its fraud and reckless-misrepresentation claims. Because Minnesota law treats even 

the fraud-adjacent claims like fraud, we apply Rule 9(b)’s heightened pleading 

requirements to each claim. See Trooien v. Mansour, 608 F.3d 1020, 1028 (8th Cir. 

2010) (applying Minnesota law). 

“In alleging fraud . . . , a party must state with particularity the circumstances 

constituting fraud[.] Malice, intent, knowledge, and other conditions of a person’s 

mind may be alleged generally.” Fed. R. Civ. P. 9(b). For each claim, Ascente 

needed to “plead the ‘who, what, where, when, and how[.]’” Ambassador Press, 

Inc. v. Dust Image Tech. U.S., LLC, 949 F.3d 417, 421 (8th Cir. 2020) (quoting U.S. 

ex rel. Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006)); see also 

Trooien, 608 F.3d at 1028, 1030 (noting a fraud claim must include “such matters as 

the time, place[,] and contents of false representations” (quoting Bennett v. Berg, 

685 F.2d 1053, 1062 (8th Cir. 1982))). It did not.3

More specifically, Ascente’s fraud claim needed to allege: (1) “a false 

representation of a past or existing material fact susceptible of knowledge”; 

(2) “made with knowledge of the falsity of the representation or made without 

knowing whether it was true or false”; (3) “with the intention to induce action in 

reliance thereon”; (4) “that the representation caused action in reliance thereon”; and 

(5) “pecuniary damages as a result of the reliance.” U.S. Bank N.A. v. Cold Spring 

3

We decline to review the underdeveloped reckless-misrepresentation claim. 

See Dormani v. Target Corp., 970 F.3d 910, 916 (8th Cir. 2020) (“To be reviewable, 

an issue must be presented in the brief with some specificity.” (quoting Meyers v. 

Starke, 420 F.3d 738, 743 (8th Cir. 2005))). Additionally, while Ascente’s opening 

brief asserts that the district court erred in denying leave to amend its fraudulentinducement claim, Ascente only discussed that claim in the summary-judgment 

context.
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Granite Co., 802 N.W.2d 363, 373 (Minn. 2011). This appeal deals with the second 

element—knowing misrepresentation. 

In terms of relevant facts, the knowing-misrepresentation analysis comes to 

an abrupt halt after the speaker makes the allegedly false statement. Put simply: we 

only look at what the alleged fraudster knew when he or she made the 

misrepresentation. See Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 747–

48 (Minn. 2000) (“[T]he complaint is devoid of any specific claim that appellant’s 

statements were representations the appellant knew were false or had no intention of 

fulfilling at the time they were made.”). 

Ascente says that its proposed amendments adequately alleged three separate 

knowing misrepresentations. We disagree.

1. October 2014

First, Ascente says that its proposed amendments adequately alleged that on 

October 28 and 29, 2014, Digital River committed fraud when Johnson and his 

colleague Corey Husfeldt told Ascente (via Busse) that the web portal was ready for 

commerce, fully functional, and met all of the requisite specifications. But those

amendments do not point to Johnson or Husfeldt. See Ambassador Press, 949 F.3d 

at 421 (noting fraud claims must “plead the ‘who, what, where, when, and how’” 

(emphasis added) (quoting Joshi, 441 F.3d at 556)). 

Ascente asserts that it “need only allege that [Digital River] had the requisite 

knowledge[,]” rather than Johnson or Husfeldt. Not so. “It is not sufficient to 

attribute alleged false statements to ‘defendants’ generally.” Trooien, 608 F.3d at 

1030. 

Ascente also urges us to use general corporate-law principles to cloak Johnson 

and Husfeldt in their colleagues’ statements. But Ascente waived that argument by 
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raising it for the first time on appeal.

4

 See, e.g., St. Paul Fire & Marine Ins. Co. v. 

Compaq Comput. Corp., 539 F.3d 809, 824 (8th Cir. 2008) (argument not raised in 

the district court is waived). 

Ascente views its amendments as adequately alleging that Johnson and 

Husfeldt personally knew about the portal’s shortcomings. This argument rises and 

falls with three email chains.

First, an October 3–6 Digital River email chain discussed the company’s

capability to meet the new deadline (October 29, 2014). Husfeldt (with Johnson 

copied) asked colleague Jerel Thompson to “provide feedback on 10/29[.]” 

Thompson confirmed that “[a]s long as the planned resources . . . do[n]’t change, we 

can meet Oct. 29th from a Development perspective.” Manwarren replied to ask if 

“that include[s] QA time or not?” Ascente did not tell us where to find that 

question’s response. 

Next, Husfeldt listed the pros and cons of two adjustment options and asked

if one adjustment “allow[s] for October 29th (including testing) to be the go live 

date?” Tracing the chain chronologically leads to two affirmative responses, one 

from Thompson and another from Matthew Kleinsasser.

Those email chains fit the timeframe (before the alleged misrepresentations). 

See Martens, 616 N.W.2d at 747. And they involve Johnson and Husfeldt. But the 

emails say nothing about what those two knew about the portal’s readiness for 

commerce, its functionality, or whether it met the specifications.

For the October 2014 slice in time, Ascente’s only other knowingmisrepresentation allegations come from a December 2014 email chain. Ascente 

tries to use those emails to explain what Digital River (via Johnson or Husfeldt) 

4

For the same reason, Ascente cannot use this argument to revive its January

2015 allegations. 
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knew two months earlier.5

 But because we can only look at what Johnson or 

Husfeldt knew when they made the allegedly false statements, the December 2014

emails do not help Ascente. See Martens, 616 N.W.2d at 747. 

For these reasons, Ascente failed to adequately allege that Johnson and 

Husfeldt made knowing misrepresentations in October 2014.

2. January 2015

Next, Ascente says that its proposed amendments adequately alleged that 

Digital River committed fraud at the Denver meeting in January 2015 by purportedly 

misrepresenting its then-present intentions. Specifically, Ascente points to when 

Digital River’s Johnson and Salazar agreed—without intending—to finish the 

company’s work and deliver a functional portal if Ascente paid Digital River another 

$187,336.25.

In support, Ascente relies on Digital River’s post-meeting actions, including 

the undisputed fact that it stopped development work after the Denver meeting. No 

record cite directs us to any pre-meeting actions that would hint at Johnson or 

Salazar’s intent at the meeting. 

Ascente also tries to marry Digital River’s purportedly “clear financial 

motive” and the January 2015 misrepresentations. Ascente’s only case that involves

a “competing interest” does not equate a conflict of interest with an adequately 

5

The December 2, 2014, email chain began when Sipple (an Ascente

consultant) asked Husfeldt (Digital River) about test accounts for the portal. 

Husfeldt forwarded that email to his colleague Christine Roe for help responding to 

Sipple. In turn, Roe forwarded it to Thompson and both weighed in. Dropping 

Thompson from the chain, Roe said that “the cleanup job [for reconciling accounts] 

wasn’t implemented.” But Roe “wasn’t aware of that” and said that it “[m]ust have 

been a corner that was cut at the end. As far as [she] knew[,] [Thompson] had written 

it.”
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alleged knowing misrepresentation. See Damon v. Groteboer, 937 F. Supp. 2d 1048, 

1071–73, 1090 (D. Minn. 2013) (denying summary judgment on fraud claim against 

realtors when facts could have supported an inference that realtor lacked intent to 

market a property because doing so cut against his financial interest, he did not try 

to lease units, and he claimed to have shown the building many times). At best, 

Damon (a nonbinding district court case) suggests that a competing interest can 

present a factor in the knowing-misrepresentation analysis—not the only factor. 

For these reasons, the January 2015 statements cannot save Ascente’s fraud 

claim.

3. July 2015

Finally, Ascente contends that Digital River committed fraud in July 2015 by 

signing the Software Development Agreement without intending to perform it. In 

support, Ascente relies on the “mountain of unfinished work” and post-execution 

emails. This argument fails for several reasons.

First, the Software Development Agreement expressly contemplated Digital 

River’s duty to finish its outstanding work. So, everyone (including Ascente) knew 

that Digital River had more work to do. And Ascente concedes that the July 2015

misrepresentation turns on Digital River’s “intent not to perform,” not its capability

to do so. Yet Ascente does not explain how the “mountain of unfinished work” 

translates into an intent not to perform an agreement to finish that exact work. 

And second, Ascente cannot use emails that post-date the Software 

Development Agreement to adequately allege that Digital River signed that 

agreement without intending to perform it. See Martens, 616 N.W.2d at 747. So, 

the July 2015 misrepresentation does not help Ascente’s fraud claim.

Even when we drew all reasonable inferences in Ascente’s favor, its proposed 

amendments could not save its fraud claim. As a result, we agree with the district 

court’s futility holding.
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B. Summary Judgment

Next, we review de novo the grant of summary judgment to Digital River on 

Ascente’s breach of contract and fraudulent-inducement claims. See Paskert v. 

Kemna-ASA Auto Plaza, Inc., 950 F.3d 535, 538 (8th Cir. 2020); Fed. R. Civ. P. 56.

1. Contract

Everyone agrees that Minnesota law governs the Software Development 

Agreement and its incorporated Statements of Work.6

 On the contract claim, we 

only need to decide if Ascente raised a triable fact on the breach element.

The Minnesota Supreme Court’s “primary goal of contract interpretation is to 

determine and enforce the intent of the parties.” Motorsports Racing Plus, Inc. v. 

Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 (Minn. 2003); accord Jensen v. Minn. 

Dep’t of Hum. Servs., 897 F.3d 908, 913 (8th Cir. 2018) (applying Minnesota law). 

When parties use unambiguous words to express their intent, Minnesota courts give 

those words their plain meaning. Jensen, 897 F.3d at 913. However, a contract 

becomes ambiguous if its plain terms are “reasonably susceptible to more than one 

construction[.]” Id.

But “[i]nterpretation of unambiguous contracts is a question of law for the 

court, as is the determination that a contract is ambiguous.” Staffing Specifix, Inc. v. 

TempWorks Mgmt. Servs., Inc., 913 N.W.2d 687, 692 (Minn. 2018) (holding trial 

court erred in allowing jury to decide “whether the contracts at issue were 

ambiguous, rather than instructing the jury that the contracts were ambiguous”). “A 

6

The parties’ contract arguments use common law and Uniform Commercial 

Code concepts, interchangeably. Although the Software Development Agreement 

involves both goods and services, we do not decide if common law or the UCC 

applies. See Vesta State Bank v. Indep. State Bank of Minn., 518 N.W.2d 850, 854 

(Minn. 1994) (using the predominant-purpose test for hybrid goods-and-services 

contracts).
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contract’s terms are not ambiguous simply because the parties’ interpretations 

differ.” Id. If a court views a contract as ambiguous, “it may admit . . . extrinsic 

evidence of the parties’ intent” (anything beyond the contract’s four corners). Id. 

“When extrinsic evidence has been admitted, the interpretation of ambiguous terms 

becomes a question of fact for the jury.” Id. 

At summary judgment, the district court concluded that only three (of the six)

purported breaches even implicated Digital River’s contractual duties. But to the 

district court, no evidence raised a triable fact on whether Digital River breached its 

purported duties.

Now, Ascente’s two contract-based challenges hinge on whether the district 

court erred by reading the Software Development Agreement differently than 

Ascente’s expert, Jonathan Hochman. As Ascente sees it, we can only understand 

that agreement’s “highly technical” terms by looking at extrinsic evidence—namely, 

Hochman’s opinion.

Ascente’s expert-based challenge skips several steps. See Staffing Specifix, 

913 N.W.2d at 692–93. Hochman’s testimony cannot answer the legal question of 

ambiguity. See S. Pine Helicopters, Inc. v. Phx. Aviation Managers, Inc., 320 F.3d 

838, 841 (8th Cir. 2003) (expert testimony on legal matters is inadmissible). And 

despite Ascente’s assertions otherwise, the district court’s Daubert decision on 

Hochman—which limited his testimony to ecommerce software’s development—

did not empower Hochman to declare the Software Development Agreement 

ambiguous. See Staffing Specifix, 913 N.W.2d. at 692.

Without any other substantive arguments, Ascente cannot convince us that the 

district court erred in dismissing the contract claim. 
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2. Fraudulent Inducement

“[A]bsent the essential element of reliance, an action for fraud must fail.” 

Breezy Point Airport, Inc. v. First Fed. Sav. & Loan Ass’n of Brainerd, 179 N.W.2d 

612, 615 (Minn. 1970). So, to defeat summary judgment on its fraudulentinducement claim, Ascente needed to raise a triable fact on its actual reliance. See 

Hoyt Props., Inc. v. Prod. Res. Grp., 736 N.W.2d 313, 321 (Minn. 2007); accord

Popp Telecom, Inc. v. Am. Sharecom, Inc., 361 F.3d 482, 491–92 (8th Cir. 2004) 

(affirming adverse grant of summary judgment on Minnesota fraud claim when 

shareholders could not establish actual reliance). 

Here, Ascente needed to show that a triable fact existed on whether it signed 

the Software Development Agreement because it relied on Digital River’s 

representations about the cost-overrun figure. See Hoyt, 736 N.W.2d at 321. 

Ascente primarily looks to its president’s deposition excerpts for support. When 

asked why he agreed to pay Digital River $187,336.25, Mills testified: 

Because regardless of what our contract said, the agreement was made 

between people. People that agreed to form a partnership whom I 

believed were working ethically and on top of the table to continue that 

partnership in good faith. I saw it as two professional organizations 

that were in a partnership together, and that there would be a bigger 

downside of me – for me not to pay my partner and keep them happy 

and going than there would be to try to get away with something. 

Digital River was my partner, and my values don’t allow me to even if 

contractually get away with something, do it.

Ex. 1, ECF No. 122-1 at 7–8. Mills also testified that he “was willing to pay what 

they told me that – that would make our relationship whole and ongoing. I was 

willing to consider that.” 

For the district court, Mills’s testimony resolved actual reliance against 

Ascente. In its view, “[n]o reasonable jury could find that Ascente signed the 
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[Software Development Agreement] in reliance on [Digital River’s] representation 

of the amount of their cost overruns.” We agree. 

The undisputed evidence speaks for itself. To preserve its business 

relationship with Digital River, Ascente “was willing to pay what [Digital River]

told” Mills. Compare Popp, 361 F.3d at 491–92 (upholding adverse grant of 

summary judgment when shareholders admitted that corporation’s pre-merger 

activities did not induce them to sell their shares), with Hoyt, 736 N.W.2d at 321 

(remanding for trial when lessor testified that he agreed to settle “because he relied” 

on opposing counsel’s representations). 

Ascente suggests that its “reliance is also confirmed by Johnson’s own 

emails,” because the Digital River employee “noted”—to other Digital River 

employees—“that if the invoice w[as]submitted with the wrong hourly rate, Ascente 

‘will likely question it.’” We have no idea how Digital River’s internal prediction 

about what Ascente might do tells us what Ascente actually did. And Ascente cites 

no authority to convince us that Minnesota courts decide the actual-reliance 

element—which looks at the alleged victim—by examining what the alleged 

fraudster expected its victim to do. 

Without raising a triable fact on its actual reliance, Ascente’s fraudulentinducement claim fails. See Breezy Point, 179 N.W.2d at 615. Consequently, we 

conclude that the district court properly granted summary judgment on that claim.

III. Conclusion

For these reasons, we affirm the district court’s futility-based leave denial and 

its grant of summary judgment to Digital River. 

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