### The Honorable Richard W. Goldberg, Judge, Unit ed States Court 1 

### of International Trade, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2761

___________ Northwest Airlines, Inc., * a Minnesota corporation, * * Plaintiff/Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Astraea Aviation Services, * Inc., doing business as Dalfort * Aviation, a Texas Corporation, * * Defendant/Appellant. *

___________ Submitted: March 12, 1997 Filed: April 24, 1997

___________ Before MAGILL and MURPHY, Circuit Judges, and GOLDBERG, Judge. 1

___________ MURPHY, Circuit Judge.

Northwest Airlines, Inc. (Northwest) contracted with Astraea Av iation Servic es, Inc. (Astraea) for Astraea to perform routine maintenance o n Northwest aircraft an d to refurbish other newly acquired aircraft. After problems arose in completing the work, Northwest sued Astraea for breach of contract in Minnesota state court. Astraea r emoved the case to federal court and counterclaimed, alleging contract and tort claims against

### Th e Honorable Richard M. Kyle, United States District Judg e 2 

### for the District of Minnesota.
-2- Northwest. The district court denied Astraea’s motion to dism iss for lack 2 of personal jurisdiction and then granted Northwest’s motion for summary judgment on Astraea’s counterclaims. We affirm.

In late 1993, representatives of Astraea attended several meeting s in Mi nnesota concerning proposals for undertaking work to refurbis h aircraft which Northwest had purchased from another carrier. These meeting s included a preliminary meeting attended by several potential bidders for the refurbishment contracts, as well as meetings where Astraea submitted proposals and negotiated the refurbishment contracts. In addition, Astrae a made numerous phone c alls to Northwest’s offices in Minnesota during this time.

Several contracts resulted. On December 10, 1993, the firs t refurbishment contract was executed by the parties in Minnesota. Thi s cont ract was amended by a letter agreement in March 1994, which als o create d a second refurbishment contract and provided that Astraea woul d refurbishadditional planes. Finally, the parties then entered into a maintenance contract in September 1994, under wh ich Astraea was to provide routine maintenance for some Northwest aircraft.

All three contracts contained choice of law provisions stating that the laws of Minnesota would govern. The refurbishment contracts state d that the y “shall be deemed entered into within” Minnesota, and th e mainte nance contract contained a choice of forum provision which state d that “[Astraea] hereby submits to the jurisdicti on and venue of the courts of the State of Minnesota with respect to all di sputes arising hereunder.”

### Astraea had previously filed a complaint in Te xas state court 3 

### on July 12, 1995; it effected service on Northwest on July 18

. Under Texas law, a suit is commenced when it is filed, as long as the plaintiff exercises diligence in effecting service. One 1991 Chevrolet Blazer v. State , 905 S.W.2d 443, 444 (Tex. Ct. App

. 1995). Northwest commenced it s action under Minnesota law on July 14 when it filed and served Astraea. Minn. R. Civ. P. 3.01. The counterclaims filed in this action are basically identical to the claims asserted by Astraea in its Texas complaint.
-3- After the contracts were executed, Northwest began deliverin g aircra ft to Astraea in Dallas, sending twenty-five planes to Astraea’ s hangars over the cour se of more than a year. Northwest stationed some of its employees in Dallas to oversee the work and sent to Dallas engineering information, operating manuals, and parts to be used in the planes fro m vari ous locations, including Minnesota. Astraea representatives als o traveled to Minnesotaon at least three occasions to discuss issues under the contracts. As th e work progressed, disputes arose about its quality, and there were delays in completing the aircraft.

After these problems arose, a reporter for a Minneapolis newspape r contacted a Northwest representative at its Minnesota headquarters about the disputes. The representative told the reporter that Northwest ha d
concerns about the quality of Astraea’s work, including defective parts an d a leaky fuel line and undetected tail crack on o ne of the aircraft. Those statem ents were included in an article in the Minneapolis newspaper

. Copies of the article were faxed to Northwest employees in Texas, an d Astraea claims that a Northwest employee distributed copies of the faxed article to Astraea customers. A Texas newspaper also reprinted the articl e in Texas.

On Ju ly 14, 1995, Northwest sued Astraea in Minnesota state cour t under all three contracts, alleging that Astraea had 3

### -4-

breached the contracts by delivering the planes late and not performing to spe cifications. Astraea removed the suit to federal district court an d moved to dismiss for lack of personal jurisdiction. After the distric t court ruled that Northwest had made a sufficient prima facie showing o f jurisdiction, Astraea counterclaimed, alleging breach of contract, fraud, and defamation by Northwest as well as other tort and unjust enrichmen t claims. Northwest pled the affirmative defense of accord and satisfaction to the breach of contract claims and moved for summary judgment on th e counterclaims. After the district court granted the motion, the parties settled the remaining claims which were dismisse d with prejudice. Astraea appea ls the assertion of jurisdiction over it and the dismissal of it s counterclaims.

I.

Astraea claims there was no personal jurisdiction over it i n Minnesota because it did not have a “general presence” in the state and th e acts giving rise to t he claims did not occur in it. The district court’s decision on personal jurisdiction is reviewed de novo. Northrup King Co. v. Compania Productor a Semillas Algodoneras Selectas, S.A. , 51 F.3d 1383, 1387 (8th Cir. 1995).

The Minne sota long-arm statute, Minn. Stat. § 543.19, is applied to the fullest extent permitted under the due process clause of the fourteent h amendment. Valspar Corp. v. Lukken Color Corp. , 495 N.W.2d 408, 410-11 (Min n. 1992). The due process clause requires that a defendant hav e sufficient minimum co ntacts with the forum so that traditional notions of fair play and substantial justice are not offended. International Shoe Co

. v. Washington , 326 U. S. 310, 316 (1945). To establish sufficient minimum contac ts, a defendant must have “purposefully avail[ed] itself of th e privilege of conducting activities within the forum

### -5-

state, thus invoking the benefits and protections of its laws.” Burge r King Corp. v. Rudzewicz , 471 U.S. 462, 475 (1985) (quoting Hanson v
. Denckla , 357 U.S. 235 , 253 (1958). Three primary factors, (1) the nature and quality of the contacts, (2) the quantity of the contacts, and (3) the relation of the cause of action to the contacts, are then considered, as well as two secondary factors, (1) the interest of the forum state in the litigation, and (2) the convenience of the parties, to determine whether pers onal jurisdiction comports with fair play and substantial justice

. Minnesota Min. & Mfg. v. Nippon Carbide Indus. , 63 F.3d 694, 697 (8th Cir. 1995), cert. denied , 116 S. Ct. 1288 (1996).

Astraea c laims that the choice of law clauses in the contracts , telephon e calls into the state, and meetings in Minnesota were no t sufficient to create personal jurisdiction when viewed in the context of the parties’ dealings. Personal jurisdiction depends upon a “defendant’s contacts with the forum in the aggregate, not individually” and th e “totalityof the circumstances.” Northrup King , 51 F.3d at 1388. While
a cho ice of law provision in itself is insufficient to create persona l jurisdiction, it remains a relevant consideration in determining whether a defendant has purpo sefully availed itself in the forum state. Wessels, Arnold & Henderson v. National Med. Waste, Inc. , 65 F.3d 1427, 1434 (8th Cir. 1995). Phone calls into a state are also a relevant contact, althoug h they also do not in themselves establish jurisdiction. See Digi-Te l Holdings, Inc. v. Proteq Telecommunications (PTE), Ltd , 89 F.3d 519, 523 (8th Cir. 1996).

Astraea had several contacts with Minnesota which related to th e disput ed contracts under which Northwest brought its breach of contrac t claims. Some relevant contract discussions took place in Minnesota, and representatives of Astraea went there on several

### -6-

occasions to negotiate the contracts in late 1993. In one of thes e meetings the parties signed a letter of intent and drafted the tentative form of the refurbish ment contract. Astraea made over 200 phone calls to Northwest in 1993, and the first refurbishment c ontract was signed by both parties in Minnesota in December 1993. Over the course of the contractual period, Astraea representatives went to Minnesota at least three more time s to discuss the contracts in 1994 and 1995.

All t hree contracts which Northwest and Astraea negotiated state d that they would be governed by Minnesota law, an d Astraea expressly agreed in the maintenance contract to submit to the jurisdiction of Minnesot a courts for any disputes arising under that contr act. These provisions and Astrae a’s other state contacts related to the contracts show tha t it“purposefully availed” itself of conducting business in Minnesota an d that it could have reasonably expected to be sued there. The distric t court d id not err in denying the motion to dismiss for lack of persona l jurisdiction.

II.
Astraea appeals from the grant of summary judgment on its breach of contract counterclaims concerning the first refurbishment contract. I t argues that the district court incorrectly concluded that Northwest’ s pay ment of a final bill presented by Astraea for work done under tha t contract was a settlement for those claims and resulted in an accord and satisfaction. Summar y judgment is reviewed de novo. Stevens v. St. Louis Univ. Med. Ctr. , 97 F.3d 268, 270 (8th Cir. 1996).

Astraea concedes that Minnesota law governs its breach of contrac t counterclaims and Northwest’s defense of an accord and

### -7-

satisfaction because of the choice of law provisions in the contracts

. Under Minnesota law, an accord and satisfaction may occur “when a creditor accepts part payment of an unliquidated debt which the debtor tenders in full satisfaction of the debt . . . and the creditor accepts that offer.” Don Kral Inc. v. Lindstrom , 173 N.W.2d 921, 923 (Minn. 1970). It may be expressed or implied from circumstances which clearly indicate the intent of the parties. Roaderick v. Lull Eng’g Co. , 208 N.W.2d 761, 764 (Minn. 1973).
After a dispute arose concerning fiv e aircraft to be worked on under the first refurbishment contract, representative s of Astraea and Northwest met. Astraea told No rthwest that it had incurred damages of $2.8 million because of Northwest’s hindrance and delays, inc luding delays in providing adequate parts and documentation on the aircraft. Northwest refused to pa y the $2.8 million, and the parties then exchangedseveral letters about the demand for payment.
In the first letter, Northwest’s project manager stated:
“As per our agreement to review [Astraea’s] claims for additional payment with regard to aircraf t 9880, 9881, 9882, 9883, 9884, I would like to have you detail the claims with substantiation . .

. .Once I receive this data, I will be in contac t with you to work out the final resolution.”

Astraea responded to this letter, stating that it had attached a final ite m for Northwest’s consideration “[i]n accordance with our agreement for fina l settlement on 9880-9884." Astraea also stated that “if Northwest accepted ” this last item, Astraea would consider it the final billing for th e project. Northwest then responded that it had reviewed the “fina l settlement proposal . . . for

### -8-

aircraft 9880-9884,” and that it would pay the amount. Astraea submitted a final invoice, which Northwest paid.

Astraea ar gues that it did not intend to create an accord an d sat isfaction through these letters. The plain language of the letters , however, expresses the parties’ understanding th at these negotiations were to provide the “final resolution” of Astraea’s c laims relating to the five aircraft. The language of the letters indicates that if Northwest accepte d Astraea’s proposed amount, its payment of that amount was to be the “final settlem ent” in relation to claims for these five aircraft. Astraea’ s assertion that it had a different subjective intent cannot be the basis fo r finding there was no accord and satisfaction when the plain language of th e letter s clearly expressed the parties’ objective intent to settle th e original claims. See Total Equip. Leasing Corp. v. LaRue Inv. Corp. , 357 N.W.2d 347, 350 (Minn. Ct. App. 1984) (parties’ objective intent determine s whet her there is an accord and satisfaction); see also Goldberger v

. Kapla n, Strangis and Kaplan, P.A. , 534 N.W.2d 734, 737 (Minn. Ct. App

. 1995) (assertion that party did not subjectively intend to release al l claims does not affect the release without a showing of mutual mistake). Northwest was thus entitled to summary judgment on these counterclaims.

III.

Astraea argues that the district court erred in its choice of la w analysis by determining that Minnesota law applied to all the tor t counterclaims and in granting summary judgment on them. Astraea brought several tort claims, including claims for defamation, libel, slander , negligent breach of contract, and misrepresentat ion, as well as claims for unjust enrichment and violation of the Texas Deceptive Trade Practices Act

. Tex. Bus. & Com. Code Ann. §§ 17.41 et seq. Although Astraea concedes tha t

### -9-

Minnesota law applies to its breach of contract counterclaims, it argues that Texas law should apply to the remainder of the claims because th e conduct g iving rise to them occurred in Texas. A choice of la w determination is reviewed de novo, Horn v. B.A.S .S. , 92 F.3d 609, 611 (8th Cir. 1996), as is a grant of summary judgment. Stevens , 97 F.3d at 270.

A.

Each refu rbishment contract stated: “This Agreement shall be deemed entered into within and shall be governed by andinterpreted in accordance with the l aws of the State of Minnesota . . . .” Minnesota generall y
rec ognizes choice of law clauses. Hagstrom v. American Circuit Breake r Corp. , 518 N.W.2d 46, 48 (Minn. Ct. App. 1994). Astraea asserts, however, that the contractual choice of law provisions do not govern the negligent per formance, misrepresentation, deceptive trade practices, and unjus t enrichment claims because they are not contract claims.

Astraea’s claims for negligent performance, misrepresentation , decept ive trade practices, and unjust enrichment raise issues o f performance and compensation for work done under the refurbishmen t contracts. Although mainly styled as torts, these claims stem fro m Northwe st’s alleged failure promptly to provide functioning parts an d adequa te support for the refurbishment project, as required under th e contracts. The unjust enrichment claim concerns the amount of compensatio n which Astraea should receive for refurbishing aircraft pursuant to a contract. These claims are closely related to the interpretation of the contracts and fall within the ambit of the express agreement that th e contracts would

### The district court did not err in applying Minnesota law t o 4 

### di smiss the claims for negligent performance, violation of th e Texas Deceptive Trade Practice s Act, Tex. Bus. & Com. Code Ann. §§ 17.41 et seq., or unjust enric hment. Minnesota does not recognize negligent performance claims. Lesmeister v. Dilly , 330 N.W.2d 95, 102 (Minn. 1983), and the dece ptive trade practices claim rests on a Texa s statute not available under Minnesota law. Finally , Minnesota does not allow recovery under an unjust enrichment theory when t here is an express contract which governs the parties ’ relations. Sharp v. Laubersheimer , 347 N.W.2d 268, 271 (Minn

. 1984). -10- be governed by Minnesota law. Astraea thus consented to the application of Minnesota law to such claims. 4

Astraea contends that even under Minnesota law, the district cour t erred in dismissing its fraudulent and negligent misrepresentatio n counte rclaims. In Astraea’s answer and counterclaims, it asserted tha t Northwest made misrepresentations to it before t he contracts were executed
concer ning facts relevant to bidding. These statements include d representations that five of the sixteen aircraft would be “sister ships” and th at Northwest would provide technical support, ferry the plane s quickl y, and promptly provide Astraea with material lists and othe r information. In order to support a fraud claim under Minnesota law, a misrepresentationmust relate to a past or present fact. See H.J., Inc.
v. International Tel. & Tel. Corp. , 867 F.2d 1531, 1546 (8th Cir. 1989). Broken promises generally do not constitute fraud, International Trave l Arrangers v. Northwest Airlines, Inc. , 991 F.2d 1389, 1402 (8th Cir. 1993) (applying Minnesota law), unless the plaintiff shows “affirmative evidence ” tha t the promisor had no intention to perform. Hayes v. Northwoo d Panelbo ard Co. , 415 N.W.2d 687, 690 (Minn. Ct. App. 1987). A contrac t claimca nnot be converted into a fraud claim, even when there is a ba d faithbreach of the contract. Wild v. Rarig , 234 N.W.2d 775, 790 (Minn. 1975).

### O n appeal, Astraea claims it also pled fraud based o n 5 

### misrepresentations about information and parts Northwest provided after the contracts were executed. Astraea’s counterclaims do not clearly allege such a theory, but even if they did, it appea rs that theorywould fail. After discovering the alleged errors i n information and problems with parts, Astraea continued to perform under the contracts and ultimately completed performance. B y continuing to perform after the alleged fraud was discovered , Astraea waived any recovery in fraud. Zochrison v. Redempti on Gold Corp. , 274 N.W. 536, 539 (Minn. 1937) (party cannot elect t o perform after discovering fraud and still recover for it).
-11- On a motion for summary judgment, the nonmoving party must set fort h specific facts sufficient to raise a genuine issue for trial and canno t rest on allegations i n the pleadings. Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986).

Astrae a has not made out a claim of misrepresentation based o n Northwest’s statements before the contracts were executed. It made n o showing that at the time Northwest entered into the contracts, Northwest had the present intent not to perform its respon sibilities or that it knew its s tatements were false. To avoid summary judgment, Astraea had th e bu rden to show each element of the fraud claim. Since it did not, th e 5 district court did not err in granting summary judgment.

### -12- B.

Astraea also argues that the district court erred by applyin g Minnes ota law and dismissing its slander, defamation, and libel claims

. Astraea contends that the conduct giving rise to the claims occurred i n Texas, and that Texas law should therefore apply.
In a diversity case, a federal court applies the choice of law rules of the forum state. In this case that means Minnesota choice of la w rules. Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941)

. The f irst step in Minnesota is to consider whether a conflict actuall y exists between the different states and whether there would b e constitutional problems with either law. Jepson v. General Cas. Co. o f Wis. , 513 N.W.2d 467, 469 (Minn. 1994). If there is an actual conflict an d both laws can constitutionally be applied, then five factors are considere d in order to make a ch oice: “(1) predictability of result; (2) maintenance of interstate and int ernational order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interest; and (5 ) application of the better rule of law.” Id. at 470.

Minnesota law considers a corporation a public figure and require s it to sh ow that a statement was made with actual malice to establish a defamation claim. See Jadwin v. Minneapolis Star & Tribune Co. , 367 N.W.2 d 476, 4 87 (Minn. 1985) (malice standard applies to heavily regulate d corpor ation in securities industry). Astraea and Northwest are bot h heavily regulated by the Federal Aviation Admini stration, and under Jadwin both would appear to be public figures. Texas law, on the other hand, doe s not consider a corpor ation a public figure unless it has entered a public controversy in order to influence the outcome. See Durham v.

### -13-

Cannan Comms., Inc. , 645 S.W.2d 845, 851, (Tex. Ct. App. 1982). Astraea asserts that this difference between Minnesota and Texas law does no t present a real conflict because the Minnesota actual malice standard has only been applied to media entities. In applying its defamation law , however, Minnesota has not indicated that distinctions should be made base d
on the media status of a defendant when the statements were made abou t
someone in the public realm. See Britton v. Koep , 470 N.W.2d 518, 52 1 (Minn. 1991) (“Minnesota affords to nonmedia defendants the same firs t amendment protection for criticisms of public officials that it grants to the mass media.”). There is thus a conflict in laws.
The substantive law of either state could constitutionally be a pplied because they each hav e significant contacts with the case, so that choice of eit her state’s laws would be “neither arbitrary nor fundamentall y unfair.” Allstate Ins. Co. v. Hague , 449 U.S. 302, 312-13 (1981 ) (plu ralityopinion). Astraea’s headquarters are in Texas, an d republication of the statements occurred in Texas. Northwest’ s headquarters are in Minnesota, and the statements giving rise to the claim s were made in Minnesota and first published there.

The qu estion then is which state law should be applied under th e Minnesota choice of law factors. Under the five choice influencin g considerations, the first (predictability of res ults), second (maintenance of int erstate order), and fourth (advancement of the forum’s interests ) have the most relevance in this case. The thirdfactor, simplification of the judicial task, has no real significance since either state law could easily be applied.

The first factor, predictability of results, is most relevant whe n parties have expectations about the applicable l aw, such as in “consensual transactions where people should know in advance what

### -14-

law will govern their act,” but has less relevance in cases such a s accide nts when the parties could not reasonably have such expectations

. Milkovich v. Saari , 203 N.W.2d 408, 412 (Minn. 1973). Here, the statement s contained in the newspaper articles were made in Minnesota to a loca l newspaper, were first published in Minnesota, an d involved the performance of contracts that the parties had agreed would be governed by Minnesot a law. Although the statements were subsequently republished in Texas, it is unlikely that Nort hwest expected Texas law to apply to statements made to a newspaper in Minnesota. This factor therefore points to applyin g Minnesota law.

Ma intenance of interstate order is satisfied if applying Minnesot a law would not show di srespect for Texas’ sovereignty or impede interstate
commerce. Jepson v. General Cas. Co. of Wis , 513 N.W.2d 467, 471 (Minn. 1994). In examining this factor, a court looks at the contacts the state has with the issues being litigated, Myers v. Government Employees Ins. Co. , 225 N.W.2d 238, 242 (Minn. 1974), and the risk of encouraging forum shopping by applying that state’s law. Hague v. Allstate Ins. Co. , 28 9 N.W.2d 43, 49 (Minn. 1979), aff’d on other grounds , 449 U.S. 302 (1981).
Here, Minnesota has several importan t contacts with the issues being litigated since one o f its residents made the comments in the state. The statements were made to a Minnesota newspaper, and they were initiall y cont ained in an article published in that newspaper. Texas also ha s
con tacts because the statements were made about a Texas corporation an d
were republished in Texas. Minnesota law is more favorable to Northwest than Texa s law, a situation which could lead to forum shopping

. Northwest’s complaint for breach of contract (to which Astraea added its defamation counterclaims) could reasonably be expected to be raised in a Minnes ota court, however, since one of the contracts expressly provide d that Astraea

### -15-

submit ted to personal jurisdiction in Minnesota and all stated tha t Minnesota law would govern. Applying Minnesota law would thus not sho w disrespect for Texas.

The fourth factor, advancement of the forum’s interests, is re levant to this case and considers both Minnesota’s gove rnmental interests and the relative interests of Texas. Nesladek v. Ford M otor Co. , 46 F.3d 734, 739 (8th Cir.), cert. den ied , 116 S. Ct. 67 (1995). Minnesota’s governmental inter ests as expressed by the Minnesota Supreme Court in Jadwin are t o limit damages to the reputations of heavily regulated corporations to case s where there is actual malice. Jadwin , 367 N.W.2d at 487. This policy is based on the court’s belief that highly regulated corporations should be subject to the same level of scrutiny as public figures because of th e “strong interest in t he free flow of commercial information.” Id. Texas also has a strong policy to “ensure broad libert y of speech”, Davenport v. Gar cia , 834 S.W.2d 4, 8 (Tex. 1992), but it does not consider al l corporations public figures and would sometimes allow a corporate plaintif f to rec over without showing actual malice. Minnesota’s interest i n encouraging the free flow of commercial information is implicated because the alleged defamatory statements were made to and published in a Minnesot a newspaper and were at least partly about a Minnesota corporation. Bot h states have an interest in providing relief for tort victims, althoug h Texas would sometimes permit recovery for a corporate plaintiff without a showing of actual malice. Applying Texas law inthis case, however, would directlyundermine Minnesota’s policy while the application of Minnesota law would not so directly conflict with Texas policy. On balance, thi s favors applying Minnesota’s defamation law.

The fi fth factor, the question of the better law, does not need t o be reached, since the previous factors show that it was

### -16-

appropriate to apply Minnesota law. Myers , 225 N.W.2d at 244. It would not be counter to the parties’ expectations to apply Minnesota law, an d Minnesota had contacts with the dispute giving rise to significant state intere sts which would be undermined by applying Texas law, makin g application of Minnesota law fair.

Astraea argues that even under Minnesota law, summary judgment fo r Northwest on the defamation claims should not ha ve been granted because it made a sufficient showing of malice. To avoid summary judgment, Astraea had to show with “convincing clarity” that Northwest made its statements with actual malice. Jadwin , 367 N.W.2d at 483. Actual malice means “wit h knowledge that the statements were false or with reckless disregard o f whether they were true or false.” Britton , 479 N.W.2d at 524. Actua l malice is not established by showing that a reasonably prudent person woul d have investigated the statement before publishin g it, but instead requires a demonstration that the “defendant in fact entertained serious doubts as to the truth of [its] publication.” Britton , 470 N.W.2d 524 (quoting St. Amant v. Thompson , 390 U.S. 727, 731 (1968)).
There is no evidence in the record that Northwest had any doubt s, let alone serious doubts, about the truth of the statements. The Northwes t representative told the newspaper about problems discovered on aircraft on whichAstraea had worked. Astraea claims there is actual malice because Northwest refused to retract the statement and further investigation on it s own computer system c ould have shown that Astraea was not responsible for the reported problems. This evidence does not s how that Northwest had any doubts about the statements or that it had reaso n to investigate. Astraea has not shown actual malice, and the district court did not err in grantin g summary judgment on the defamation claims.

### -17- IV.

In sum, there was personal jurisdiction over Astraea in Minnesota , and the district court did not err in applying the law or dismissing the counterclaims on summary judgment. For these reasons, the judgment i s affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.