Appellants Lori and Rick Hollinger appeal the trial court’s dismissal of their cause of action against Timothy M. Sifers, M.D., and Timothy M. Sifers, M.D., P.A., (“Defendants”) for lack of personal jurisdiction. The Hollingers contend that Defendants were subject to both specific and general jurisdiction under Missouri’s long-arm statute. We affirm the dismissal.
Factual and Procedural Background
Defendant Timothy M. Sifers, M.D., is licensed to practice medicine in the State of Kansas. He maintains a place of business in Kansas and has never been licensed to practice medicine in Missouri. Dr. Sifers’ corporation, Timothy M. Sifers, M.D., P.A., is organized pursuant to the laws of Kansas. The corporation’s registered agent is located in Kansas. Plaintiffs Rick and Lori Hollinger are residents of Cass County, Missouri.
In November of 2000, Dr. Sifers appeared in a televised interview on KMBC-TV, Channel 9, discussing a relatively new weight-reduction procedure known as a “duodenal switch.” That interview, which
Following her surgery, Lori suffered significant complications, including severe infections that required her to be re-hospitalized on several occasions. In July 2002, the Hollingers filed a multi-count lawsuit against the Defendants in Jackson County, Missouri, alleging the following counts: deceptive merchandising practices, fraud, negligence, battery, punitive damages, and loss of consortium. The underlying basis of the suit is Lori’s allegation that she learned after her surgery that Dr. Sifers had not performed the agreed-upon duodenal switch surgery at all, but instead had performed an older, riskier procedure, with greater potential for complications, and that Lori had suffered severe complications as a result. The Hollingers alleged in their petition that each Defendant “was at all times transacting and conducting business within the confines of the State of Missouri including but not limited to the promotion and advertising of its medical services within the State of Missouri[.]” Service of process was obtained in Kansas under the long-arm statute, section 506.500 RSMo 2000.
The Defendants filed a motion to dismiss for lack of personal jurisdiction. In them memorandum in support, they asserted, inter alia: (1) that Plaintiffs’ petition fails to set forth the portions of the Missouri long-arm statute on which they rely; (2) that Plaintiffs’ petition fails to plead sufficient facts to establish that the cause of action arose out of activities covered by the long-arm statute; and (3) that Defendants had insufficient minimum contacts with Missouri to satisfy due process requirements. In an attached affidavit, Dr. Sifers averred, inter alia, that he did not advertise in Missouri at the time of the incidents alleged by the Hollingers; that the television station contacted him for the Health Watch interview; that he understood the appearance to be an informational interview and not a means of advertising or soliciting patients; that the television station filmed the interview with him at his Kansas office; that Lori Hollinger contacted him at his Kansas office to discuss the surgery; and that her surgery was performed in Kansas.
The trial court heard arguments on the motion to dismiss for lack of personal jurisdiction. In December 2002, the court granted Defendants’ amended motion, stating: “The court determines that the defendants’ contacts with the State of Missouri are not sufficient to satisfy due process requirements.”
Plaintiffs appeal.
Long-Arm Jurisdiction
The Hollingers argue that the trial court erred in dismissing the case for lack of personal jurisdiction because the facts show that the Defendants’ contacts with Missouri are sufficient to satisfy due process requirements for both specific and general personal jurisdiction under Missouri’s long-arm statute.
A trial court may hear a motion for lack of personal jurisdiction on affidavits, on oral testimony or on depositions and may disbelieve any factual statements.
Id.
But “its inquiry is limited to an examination of the petition on its face and the supporting affidavits and depositions; it may not consider the merits of the underlying action.”
Id.
Likewise, this court is limited to deciding whether the pleadings are sufficient to survive the motion to dismiss.
Shouse,
In order for a non-resident defendant to be subject to the long-arm jurisdiction of this state, two elements must be present: First, the suit must arise out of one of the activities enumerated in Missouri’s long-arm statute; and second, the defendant must have sufficient minimum contacts with Missouri to satisfy due process requirements.
Chromalloy Am. Corp. v. Elyria Foundry Co.,
Here, the trial court granted the motion to dismiss for lack of personal jurisdiction based on the second required element: a lack of sufficient minimum contacts. A dismissal will be affirmed if it can be sustained on any ground supported by the motion to dismiss, regardless of whether the trial court relied on that ground.
Shouse,
Missouri’s long-arm statute provides in relevant part:
Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation ... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this state;
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(3) The commission of a tortious act within this state[.]
§ 506.500.1, RSMo 2000 (emphasis added). The General Assembly’s intent in passing the long-arm statute “was to extend the jurisdiction of the courts of this state over nonresident defendants to the extent permissible under the due process clause of the fourteenth amendment of the constitution of the United States.”
State ex rel. K-Mart Corp. v. Holliger,
The Hollingers asserted in their suggestions in opposition to the motion to dismiss that they alleged facts sufficient to establish that their cause of action arose out of activities covered by the long-arm statute.
In order to rely upon the “tortious act” provision of the long-arm statute, the Plaintiffs were required to show that the Defendants committed a tort in Missouri and that the action caused the Plaintiffs’ injuries.
See Garrity v. A.I. Processors,
To demonstrate that a cause of action “arose out of’ an activity covered by the long-arm statute, “a plaintiff must make a
prima facie
showing of the validity of its claim.”
Conway,
Where a non-resident defendant is engaged in providing a service, as opposed to providing a product through the stream of commerce, the contact requirements for long-arm jurisdiction are more stringent.
See State ex ret. Banes v. Gerhard,
While the interview, which was shown in Missouri, acquainted Lori with Dr. Sifers and with his claimed expertise, the interview, standing alone, did not create Lori’s agreement to have the procedure done. Indeed, it is clear that the interview merely motivated her to go to his office to discuss the possibility of having the procedure. It was not until she personally interviewed Dr. Sifers at his office and discussed the matter that she agreed to the procedure and placed reliance on his representations.
“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state.”
Conway,
Conclusion
There was no prima facie showing that the alleged wrongful actions of Defendants were committed within the State of Missouri. For that reason, it is unnecessary to examine Plaintiffs’ arguments with regard to sufficient minimum contacts. The judgment is affirmed.
ULRICH and HARDWICK, JJ„ concur.
Notes
. The elements necessary to prove a fraudulent misrepresentation claim are:
a representation; its falsity; its materiality; the speaker's knowledge of its falsity; his intent that it be acted on by the hearer and in the manner reasonably contemplated; the hearer’s ignorance of its falsity; his reliance on its truth; his right to rely thereon; and his consequent and proximate injury-
Joel Bianco Kawasaki Plus v. Meramec Valley Bank,