United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3307

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Gannon International, Ltd.; The *

Gannon Pacific Company; The Gannon *

Company (Hong Kong), Limited; *

Gannon Vietnam Co., Ltd., *

*

Plaintiffs/Appellants, *

*

v. *

*

Walter Blocker, * Appeal from the United States

* District Court for the

Defendant/Appellee, * Eastern District of Missouri.

*

Ignition Capital Partners; Sandalwood *

Investments, Limited; Gannon Brewery *

Joint Stock Company, *

*

Defendants, *

*

Connell Bros. Company, Ltd., *

*

Movant. *

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Submitted: April 19, 2012

 Filed: July 17, 2012

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Before LOKEN and SHEPHERD, Circuit Judges, and GERRARD, District Judge. 1

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GERRARD, District Judge.

This case involves a wire transfer from the plaintiff’s bank account to the

defendant’s wife. The plaintiff claimed that the defendant, a former employee of the

plaintiff, initiated the transfer unlawfully. But the defendant moved for summary

judgment, offering evidence of another explanation for the transfer. The plaintiff did

not offer any evidence in response, and the district court entered summary judgment

2

for the defendant.

The issue presented in this appeal is whether the defendant made the initial

showing required by Fed. R. Civ. P. 56 that there was no genuine issue of material

fact and that he was entitled to judgment as a matter of law, thereby shifting the

burden to the plaintiff to present affirmative evidence showing that a genuine issue

of material fact existed. We find that the defendant made the required showing, and

affirm the judgment of the district court.

I

This litigation began when Gannon International, Ltd. (“Gannon”), filed a

complaint in district court against Walter Blocker and several corporate defendants. 

Blocker is a former employee of Gannon who managed some of Gannon’s Asian

subsidiaries. Gannon’s operative complaint alleged that in May 2007, Blocker had

secretly caused a wire transfer of $415,000 from the bank account of Gannon Hong

The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska, sitting by designation. 

The Honorable Jean C. Hamilton, United States DistrictJudge for the Eastern 2

District of Missouri. 

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Kong into his wife’s personal bank account. This transfer, Gannon alleged, was not

for a legitimate business purpose. Gannon further alleged that in February 2009,

Blocker caused a wire transfer of $40,000 from a Gannon Hong Kong bank account

to the personal bank account of Gannon’s former Chief Financial Officer, Bob

Greene, again for no legitimate business purpose. 

Gannon also alleged that Blocker was part of a scheme to divest Gannon of its

investment in a joint venture to build a brewery in Vietnam. Gannon claimed that

Blocker had refused to provide Gannon with access to records of Gannon

subsidiaries, particularly relating to Gannon Vietnam’s license to distribute Anheuser

Busch productsin Vietnam. And Gannon alleged that, against its orders, Blocker had

diverted Gannon funds to a Vietnamese joint stock company formed to operate the

planned brewery. 

These acts, according to Gannon, gave rise to several claims for relief, against

Blocker and the three other defendants (the Vietnamese joint stock company and two

Washington private equity firms). Gannon alleged that Blocker had breached his

fiduciary duties to Gannon. Gannon claimed that Blocker had committed fraud by

causing the wire transfers to personal bank accounts. Gannon alleged that the wire

transfer to Blocker’s wife’s personal account constituted unjust enrichment and

conversion. Another fraud claim, against Blocker and the equity firms, was based on

a call for capital contribution to the joint stock company. The alleged scheme to

divest Gannon of its interest in the joint stock company also formed the basis for

claims of tortious interference with business relationships, inducing a breach of

fiduciary duty, violating Section 10(b) of the Securities Exchange Act of 1934, and

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civil conspiracy. And Gannon pled separate claims for declaratory judgment and a

constructive trust.

Section 10(b) is the anti-fraud provision of the Act. 15 U.S.C. § 78j. 3

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Blocker moved to dismiss under Fed. R. Civ. P. 12(b)(4), (5), and (6), and the

equity firms moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (2), contesting

personal and subject-matter jurisdiction. Blocker also moved for partial summary

judgment on the claims arising out of the alleged $415,000 transfer. 

The district court disposed of the Rule 12 motionsfirst. It dismissed the equity

firms for lack of personal jurisdiction. The court dismissed the fraud claim based on

the wire transfers, as well as the tortious interference and Section 10(b) claims, for

failing to state claims for relief. It dismissed the constructive trust claim because a

constructive trust is a remedy, not a separate cause of action. And finally, the court

found that any remaining claims relating to the investment agreement between

Gannon and the equity firms were subject to the arbitration clause of the agreement,

and dismissed those claims on that basis. Left standing, to the extent they were based

on the wire transfers, were the claims for breach of fiduciary duty, unjust enrichment,

conversion, and civil conspiracy. 

Before the court ruled on Blocker’s motion for partial summary judgment,

Gannon filed a motion to voluntarily dismiss the entire action without prejudice,

pursuant to Fed. R. Civ. P. 41(a)(2). Gannon explained that Blocker and Greene had

sued it in a Missouri state court, and it wanted to dismiss its claims in federal court

and refile them in the state court action. Blocker opposed voluntary dismissal. But

before the court addressed Gannon’s motion to voluntarily dismiss, it granted

Blocker’s motion for partial summary judgment.

In support of his motion for partial summary judgment, Blocker presented

several exhibits. Tran Quoc Hung, the former chief financial officer of the Gannon

subsidiaries at issue, provided a statement regarding the $415,000 transaction. Hung

explained that in the course of his duties for the Gannon subsidiaries, he had been

involved in handling a transaction between two other companies: Diageo Finance

PLC and Linh Gia Co Ltd. Diageo Finance is a subsidiary of Diageo, a large

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worldwide producer of alcoholic beverages. Linh Gia is in the business of importing

and distributing foreign alcoholic beverages in Vietnam. Linh Gia is partly owned

by Doan Phuong Ly, Blocker’s wife.

According to Hung, Linh Gia contracted with Gannon for support services

regarding the import and distribution of alcoholic beverages produced by Diageo. 

Linh Gia needed money for expenses such as taxes, operating costs, and advertising;

Diageo agreed to provide it. Diageo wired approximately $470,000 to Gannon Hong

Kong—money that was, according to Hung, intended for Linh Gia. So, Gannon

Hong Kong transferred $415,000 of that money to Ly, who was expected to transfer

that amount to Linh Gia for expenses. And, according to Hung, those expenses were

paid as agreed by Ly and Linh Gia. Hung said that he had verified Ly’s transfer of

the money to a Linh Gia account, and he attached an exhibit (written in a foreign

language which is presumably Vietnamese) that he proffers as evidence of that

transfer. Blocker’s own statement explains that the funds were transferred through

Ly so they would be seen as a “capital contribution” from a shareholder instead of

being deemed income to Linh Gia. 

4

Hung also explained that Blocker was not immediately aware of these

transfers—they were Hung’s responsibility as chief financial officer. Hung declared

that Diageo had no debt to Gannon which would have entitled Gannon to the money. 

Ly provided a declaration consistent with Hung’s account of the transactions, to

which she attached several exhibits (again, primarily in a foreign language we

presume is Vietnamese) as evidence of Linh Gia’s use of the funds on legitimate

business expenses associated with importing and distributing Diageo products. 

Blocker’s own statement was consistent with Hung’s and Ly’s. 

Whether this tactic was consistent with any applicable tax laws is not at issue. 4

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Gannon did not submit evidence in response to Blocker’s motion. Instead, it

argued that Blocker had not made a prima facie case for summary judgment. It

asserted that two of the exhibits attached to Ly’s statement referred not to Linh Gia,

but to a different company, Nhan Viet. It contended that Hung’s statement was

inadmissable hearsay with respect to Diageo’s intent to fund Linh Gia. And it

complained that the receipt for the transfer from Ly to Linh Gia was handwritten.

The district court granted Blocker’s motion. The court found that Blocker had

proven the absence of a genuine issue of material fact with respect to the conversion

claim because Gannon had not identified any debt owed by Diageo to Gannon that

would explain the $470,000 transfer. And Blocker had presented unrebutted evidence

explaining the transfer. Therefore, the court reasoned, the uncontested evidence

established that Gannon had no right to possession of the funds, defeating its

conversion claim. Whether Linh Gia had spent the money properly—i.e., asrequired

by Linh Gia’s agreement with Diageo—was, the court found, irrelevant to Gannon’s

claim against Blocker. For similar reasons, the court found that the claim for breach

of fiduciary duty failed, because Blocker could not have breached a fiduciary duty to

Gannon by transferring funds for a legitimate business purpose. And the unjust

enrichment claim failed because Gannon never had a claim to the funds, and neither

Blocker nor Ly retained the benefit of the funds. 

The court specifically rejected the evidentiary complaints Gannon had made. 

The court rejected Gannon’s hearsay objections, reasoning that the disputed

statements were based on the first-hand knowledge of those responsible for the

transfer of funds. And the court found no merit to Gannon’s complaint about the

handwritten receipt Blocker offered as evidence of Ly’s transfer of the funds to Linh

Gia. Gannon, the court noted, did not show how the handwritten receipt was

inadequate evidence of a deposit, and did not come forward with any countervailing

evidence that the deposit did not occur. 

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Based on that reasoning, the court granted Blocker’s motion and expressly

dismissed Gannon’s claims for breach of fiduciary duty, unjust enrichment, and

conversion to the extent they were based on the $415,000 transfer. Left standing

were the claims for breach of fiduciary duty, unjust enrichment, conversion, and civil

conspiracy, to the extent the claims rested on the alleged $40,000 transfer to Greene. 

Then, the court entered a text order granting Gannon’s motion to dismiss the case

without prejudice, and entered a final judgment of dismissal. 

At that point, Gannon decided to start adducing evidence, in the context of a

motion to alter or amend the judgment. In support of its motion, Gannon submitted

two exhibits: (1) a contract entered into by Diageo and Gannon Hong Kong after the

transfers at issue, generally memorializing an agreement that Gannon would support

and guarantee Linh Gia’s performance of its obligations to Diageo; and (2) an invoice

fromLinh Gia to Diageo for $470,000 for “marketing services,” listing Gannon Hong

Kong’s information under “Bank details.” Blocker objected that Gannon had not, in

support of its motion, demonstrated why the evidence adduced could not have been

obtained and produced earlier. And, Blocker argued, even if the evidence was

considered, it was completely consistent with the evidence supporting Blocker’s

motion for summary judgment. The district court denied Gannon’s motion to alter

or amend. Gannon appealed from the order granting Blocker’s motion for partial

summary judgment.

II

The issue raised on appeal is whether the district court erred in granting

summary judgment. But before addressing that, we digress to discuss a matter

relating to our appellate jurisdiction—whether the final judgment from which the

appeal was taken was manufactured.

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A

The jurisdiction offederal courts of appeal is generally limited to appeals taken

from “final decisions of the district courts.” 28 U.S.C. § 1291. For an order to be

final, it must end the litigation on the merits and leave nothing for the court to do but

execute the judgment. Acton v. City of Columbia, 436 F.3d 969, 973 (8th Cir. 2006). 

But a dismissal without prejudice, coupled with the intent to refile the voluntarily

dismissed claims after an appeal of an otherwise-interlocutory order, is a clear

evasion of the judicial and statutory limits on appellate jurisdiction. Great Rivers

Coop. of Se. Iowa v. Farmland Indus., Inc., 198 F.3d 685, 688 (8th Cir. 1999). We

still have jurisdiction over such an appeal. See id.; see also Hope v. Klabal, 457 F.3d

784 (8th Cir. 2006). But, we have said, in most cases a district court abuses its

discretion when it frustrates the limitations on federal appellate jurisdiction by

entering a Rule 41(a)(2) order dismissing remaining claims without prejudice for the

purpose offacilitating the immediate appeal of an earlier interlocutory order. Madsen

v. Audrain Health Care, 297 F.3d 694, 697-98 (8th Cir. 2002); Great Rivers Coop.,

198 F.3d at 689-90.

That having been said, we are persuaded that those concerns do not apply here. 

Our examination of the record suggeststhat Gannon’s motion for voluntary dismissal

was not an attempt to “evade the final judgment principle and end-run [Fed. R. Civ.

P.] 54(b) by taking a tongue-in-cheek dismissal of its remaining claims.” See

Minnesota Pet Breeders, Inc. v. Schell & Kampeter, Inc., 41 F.3d 1242, 1245 (8th Cir.

1994). Gannon actually moved for voluntary dismissal before Blocker’s motion for

summary judgment was granted. And among the claims Gannon sought to dismiss

were the ones now on appeal. Gannon explained, to the district court and this court

at oral argument, that its motion to dismiss was motivated by the desire to consolidate

all the litigation between Gannon and Blocker in one action. And, Gannon’s counsel

noted at oral argument, Gannon could also undercut Blocker’s jurisdictional

arguments by bringing its claims in the state court to whose jurisdiction Blocker had

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already acceded. Gannon’s counsel assured this court that it had no intent to refile

in federal court, and the record provides us with no reason to doubt that assurance. 

In short, the circumstances here are inconsistent with a conclusion that Gannon

sought to manipulate our appellate jurisdiction. So, we turn to the merits of its

appeal. 

B

Our analysis of the merits begins with familiar propositions. We review the

district court’s grant of summary judgment de novo, applying the same standards as

the district court and viewing the evidence in the light most favorable to the

nonmoving party. McDonald v. City of Saint Paul, 679 F.3d 698, 703 (8th Cir.

2012). Summary judgment is proper if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law. See Rule

56(c)(2). A movant for summary judgment bears the initial responsibility of

informing the court of the basis for the motion, and must identify those portions of

the record which the movant believes demonstrate the absence of a genuine issue of

material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)

(en banc). If the movant does so, the nonmovant must respond by submitting

evidentiary materials that set out specific facts showing that there is a genuine issue

for trial. Id. The nonmovant must do more than simply show that there is some

metaphysical doubt as to the material facts. Id. Where the record taken as a whole

could not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial. Id. 

Gannon’s argument is that the evidence offered by Blocker was insufficient to

support summary judgment. For the most part, Gannon reassertsthe same complaints

it made to the district court. For instance, Gannon claims that Blocker’s statement

was “self-serving” and unpersuasive. Gannon contendsthat the evidence attached to

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Ly’s statement fails to document how Linh Gia spent the money transferred to it, or

to properly document the transfer from Ly to Linh Gia. Gannon questions why only

$415,000 ofthe $470,000 sent by Diageo were transferred to Ly. And Gannon argues

that Hung’s statement contained inadmissible hearsay. 

Like the district court, we find these arguments unpersuasive. Blocker’s

statement, and those of Hung and Ly, may have been “self-serving,” but they were

also unrebutted. Parties to civil litigation usually have relevant evidence to offer,

and where that evidence is uncontradicted, it can (and should) form the basis for a

judgment. Simply dismissing such evidence as “self-serving” is precisely the sort of

“‘metaphysical doubt’” that will not suffice to oppose summary judgment. See Scott

v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). And we agree with the district court

that questions about how Linh Gia spent the money are red herrings. Whether Linh

Gia fulfilled its agreement with Diageo is not pertinent to Gannon’s claims against

Blocker. The failure to forward all $470,000 is another red herring—Gannon is only

suing for the funds in the $415,000 transfer, so there is no need for Blocker to

account for the rest of the funds. And while a handwritten receipt for a bank deposit

may seem unorthodox, we are not in a position to evaluate Vietnamese banking

practices. The exhibit is enough, in the absence of any other evidence, to prove what

it purports to show. If a computerized bank record was available, Gannon was free

to use the discovery process to try and obtain it, and see what it showed.

Nor does Gannon’s evidentiary argument avail it. As a general principle, an

affidavit or declaration used to support or oppose a motion must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the

affiant or declarant is competent to testify on the matters stated. Rule 56(c)(4). A

party may object that the material cited to support or dispute a fact cannot be

presented in a form that would be admissible in evidence. Rule 56(c)(2). And when

such an objection is made, the burden is on the proponent of the evidence to show

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that the material is admissible as presented or to explain the admissible form that is

anticipated. Rule 56 advisory committee’s note.

But we review the admission of evidence for consideration at the summary

judgment stage for an abuse of discretion. Warner Bros. Entm’t, Inc. v. X One X

Prods., 644 F.3d 584, 591 (8th Cir. 2011). And the standard is not whether the

evidence at the summary judgment stage would be admissible at trial—it is whether

it could be presented at trial in an admissible form. See Rule 56(c)(2). Gannon

complainsthat Hung’s statement is partly based on hearsay, but does not even attempt

to argue that the information contained in Hung’s statement could not have been

presented in an admissible form at trial. We conclude that the district court did not

5

abuse its discretion in overruling Gannon’s hearsay objection. See Walker v. Wayne

Cnty., 850 F.2d 433, 435 (8th Cir. 1988). 

Gannon also asserts that when money is transferred from one party into the

bank account of another party, it is prima facie evidence that the receiving party has

some legal right to those funds. Gannon cites no authority for this proposition, nor

are we aware of any. In any event, Blocker presented evidence of an explanation for

the transfers. Gannon cannot rebut that evidence with a baseless “presumption.” But

at this point, Gannon also relies on the evidence it presented in support of its motion

to alter or amend the judgment. That requires some clarification.

Gannon’s appellate brief repeatedly relies upon the Gannon-Diageo contract

and Linh Gia-Diageo invoice that it presented in support of its motion to alter or

amend. But that motion was overruled. And Gannon neither designated that ruling

in its notice of appeal, nor included the ruling in its statement of issues, nor argued

Gannon’s argument is particularly deficient because Gannon itself, in support

5

of its motion to alter or amend, presented exactly the sort of admissible foundational

evidence that it claims was missing from Hung’s statement. But more on that later.

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in its appellate brief that the district court should have granted the motion. See Fed.

R. App. P. 3(c) and 28(a)(5). In other words, Gannon did not preserve for appeal any

issue with respect to the motion to alter or amend. See Hays v. Hoffman, 325 F.3d

982, 987 n.2 (8th Cir. 2003); C & S Acquisitions Corp. v. Nw. Aircraft, Inc., 153 F.3d

622, 625 (8th Cir. 1998). So, the exhibits presented in support of that motion are not

6

part of the summary judgment record. It is not clear whether Gannon fails to

appreciate the distinction, or simply hopes that we won’t notice it.

That having been said, even if considered, the exhibits do not suggest what

Gannon claims they prove. Instead, they support Blocker’s arguments. Gannon

claims that because the Diageo-Gannon contract provides for Diageo to “from time

to time at its sole discretion provide funding to Linh Gia[,]” this means that Diageo

was meant to send funds directly to Linh Gia. But the contract was entered into two

months after the disputed transfers, and on the very next page Gannon “acknowledges

that all monies paid over to Linh Gia to date by GANNON was [sic] provided by

DIAGEO.” In other words, the contract is not only consistent with Blocker’s version

of events—it directly supportsit. Similarly, Gannon argues that the Linh Gia-Diageo

invoice requested that Gannon Hong Kong, not Linh Gia, be paid $470,000. But the

exhibit is sent under Linh Gia’s letterhead, to Diageo, and only lists Gannon’s

information under “Bank details.” Unless Gannon can explain why Linh Gia would

order Diageo to pay Gannon for Gannon’s marketing services, the obvious meaning

of the invoice is precisely consistent with Blocker’s evidence—Diageo was to send

Linh Gia $470,000 for marketing services, routed through Gannon’s bank account.

Nor, in any event, would there be any basis for finding the district court

6

abused its discretion in overruling the motion; Gannon presented no reason to believe

that it had exercised reasonable diligence to obtain the evidence before entry of

judgment, or that the evidence would have produced a different result. See Williams

v. Hobbs, 658 F.3d 842, 853-54 (8th Cir. 2011).

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In sum, Gannon’s attempt to cast a cloud over Blocker’s evidence does not

obscure the fact that Blocker’s evidence, if presented and unrebutted at trial, would

easily have warranted a judgment in his favor. Speculation and conjecture are

insufficient to defeat summary judgment, see Bloom v. Metro Heart Group of St.

Louis, Inc., 440 F.3d 1025, 1028 (8th Cir. 2006), and speculation and conjecture are

all that Gannon offered. And even if we were to consider Gannon’s belatedly

proffered evidence, it only strengthens Blocker’s case. Gannon’s myriad arguments

are, individually and collectively, without merit.

III

For the foregoing reasons, we affirm.

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