No. 20-2474 ___________________________

Ascente Business Consulting, LLC, doing business as LIBERTYID

Plaintiff - Appellant

v.

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

Defendants - Appellees ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: May 12, 2021 Filed: August 18, 2021 ____________ Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges. ____________ 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 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. -2- 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 exchang