Creative Compounds, LLC v. Thermolife Int'l, LLC

• Decision Date: 23 May 2023
• Docket Number: ED111095
• Parties: CREATIVE COMPOUNDS, LLC, Appellant, v. THERMOLIFE INTERNATIONAL, LLC, Respondent.
• Court: Missouri Court of Appeals

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CREATIVE COMPOUNDS, LLC, Appellant,
v.
THERMOLIFE INTERNATIONAL, LLC, Respondent.

No. ED111095

Court of Appeals of Missouri, Eastern District, Fourth Division

May 23, 2023

Appeal from the Circuit Court of Cape Girardeau County Honorable Benjamin F. Lewis

Philip M. Hess, Judge

Introduction

Creative Compounds, LLC ("Creative") appeals the Circuit Court of Cape Girardeau County's judgment granting ThermoLife International, LLC's ("ThermoLife") motion to dismiss for lack of personal jurisdiction. In its sole point on appeal, Creative argues the trial court erred in dismissing the case for lack of personal jurisdiction because ThermoLife's tortious conduct was directed at and injured Creative in Missouri, subjecting ThermoLife to the personal jurisdiction of this state.

Because Creative did not satisfactorily plead ThermoLife committed the tort of tortious interference with contract or business expectancy or injurious falsehood in Missouri, Creative did not adequately plead facts establishing personal jurisdiction over ThermoLife. We deny Creative's point on appeal.

We affirm.

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Factual and Procedural Background

Creative sources and sells bulk raw ingredients to the food industry, specifically the sports nutrition and dietary supplement industries. One ingredient Creative sells customers is NitroRocket^®, a specially engineered extract of arugula developed for the sports nutrition and nutraceutical industries. WG Nutrition is one of Creative's customers who purchase NitroRocket^®. Multiple Creative customers, including WG Nutrition, told Creative they received letters and emails from ThermoLife threatening to sue, alleging the incorporation of NitroRocket^® into their products infringed on "rights" owned by ThermoLife. Creative alleges before ThermoLife sent its threatening letters and emails to its customers, ThermoLife's prior counsel admitted to Creative's representative on September 4, 2018, that neither NitroRocket^®by itself nor including NitroRocket^® into a product marketed, offered for sale, and/or sold to consumers violated any rights owned by ThermoLife. Creative also alleges the threatening letters and emails caused WG Nutrition to terminate its agreement with Creative to purchase NitroRocket^®.

On July 27, 2021, Creative filed its petition against ThermoLife. Following other motions, the trial court granted ThermoLife leave to file a motion to dismiss Creative's petition. After a hearing on the motion in June 2022, the trial court dismissed Creative's petition with leave to file an amended petition. On July 6, 2022, Creative filed its first amended petition alleging tortious interference with a contract or business expectancy, Count I, and injurious falsehood, Count II. On August 8, 2022, ThermoLife filed its motion to dismiss with prejudice the amended petition asserting lack of personal jurisdiction and failure to state a claim. On October 6, 2022, the trial court held a hearing on the motion to dismiss. On October 17, 2022,

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the trial court dismissed with prejudice Creative's first amended petition for lack of personal jurisdiction.

This appeal follows.

Standard of Review

The plaintiff has the burden to show the trial court's exercise of jurisdiction is proper when a defendant raises the issue of personal jurisdiction in a motion to dismiss. Babb v. Bartlett, 638 S.W.3d 97, 104 (Mo. App. E.D. 2021) (quoting Consol. Elec. & Mechs., Inc. v. Schuerman, 185 S.W.3d 773, 775 (Mo. App. E.D. 2006)). "Whether a plaintiff has presented sufficient evidence to establish a prima facie case of personal jurisdiction over a defendant is a question of law that we review on appeal de novo." Id. (citing Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo. banc 2010)). In reviewing the grant of a motion to dismiss a petition, "all facts in the petition are deemed true and the plaintiff is given the benefit of all reasonable inferences." Id. (citing Bryant, 310 S.W.3d at 231). "A reviewing court evaluates personal jurisdiction by considering the allegations contained in the pleadings to determine whether, if taken as true, they establish facts adequate to invoke Missouri's long-arm statute and support a finding of minimum contacts with Missouri sufficient to satisfy due process." Id. (quoting Bryant, 310 S.W.3d at 231). As in this case, if a motion to dismiss for lack of jurisdiction is based on facts not appearing in the record, "the trial court may hear it on affidavits presented by the parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition." Id. (quoting Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906, 909 (Mo. App. W.D. 2001)).

"This standard of review does not convert the motion to dismiss into a motion for summary judgment as 'the trial court's inquiry is limited to an examination of the petition on its

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face and the supporting affidavits to determine the limited question of personal jurisdiction.'" Lindley, 55 S.W.3d at 909-10 (quoting Cap. Indem. Corp. v. Citizens Nat'lBank, 8 S.W.3d 893, 898 (Mo. App. W.D. 2000)); see also Consolidated Elec. & Mechs., Inc. v. Schuerman, 185 S.W.3d 773, 776 n.1 (Mo. App. E.D. 2006). "The merits of the underlying action are not considered." Lindley, 55 S.W.3d at 910 (quoting Cap. Indem. Corp., 8 S.W.3d at 898).

Discussion

A. Party Positions

Creative argues the trial court erred in dismissing the case for lack of personal jurisdiction because ThermoLife's tortious conduct was directed at and injured Creative in Missouri, subjecting ThermoLife to the personal jurisdiction of this state. Creative contends extraterritorial tortious conduct, like ThermoLife's, may support personal jurisdiction under Missouri's long-arm statute. Bryant, 310 S.W.3d at 232; see also State ex rel. Key Ins. Co. v. Roldan, 587 S.W.3d 638, 641 (Mo. banc 2019); Brovont v. KS-I Med. Servs., P.A., 622 S.W.3d 671, 685 (Mo. App. W.D. 2020). Creative argues in Missouri, "a single tortious act is sufficient to support personal jurisdiction consistent with due process standards." Brovant, 622 S.W.3d at 686 (quoting Roldan, 587 S.W.3d at 643) (emphasis removed). Creative asserts ThermoLife threatened to sue Creative and its customers if those customers did not stop purchasing NitroRocket^® from Creative. Creative argues because of ThermoLife's tortious acts, "at least one customer terminated its agreement with [Creative] to purchase NitroRocket^®."

ThermoLife argues the trial court did not err in dismissing the case because Creative's first amended petition failed to establish personal jurisdiction over ThermoLife. Specifically, ThermoLife contends the first amended petition alleged no facts supporting the Missouri long-arm statute attaching, or any facts satisfying due process requirements. ThermoLife argues the

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first amended petition provides no allegations ThermoLife published any false statement in the state or engaged in any other activity in Missouri. ThermoLife contends Creative's first amended petition "does not identify specific facts and statements to satisfy its assertion of 'negative consequences.'" Additionally, ThermoLife asserts even if the long-arm statute were satisfied, Creative did not show due process was satisfied. ThermoLife states Creative "made no effort to explain how the five factors support its due process argument." ThermoLife argues even after a consideration of the relevant factors, dismissing the case is proper.

Finally, ThermoLife argues even if this Court concludes ThermoLife is subject to personal jurisdiction in Missouri, we should affirm the trial court's dismissal because "Creative failed to satisfy the fact-pleading standard necessary under Missouri law." ThermoLife contends Creative failed to state a claim of injurious falsehood and tortious interference with a contract or business expectancy.

B. Analysis

Personal jurisdiction refers "to the power of a court to require a person to respond to a legal proceeding that may affect the person's rights or interests." State ex rel. Cedar Crest Apartments, LLC v. Grate, 577 S.W.3d 490, 493 (Mo. banc 2019) (quoting State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 230-31 (Mo. banc 2017)). "The basis of a court's personal jurisdiction over a corporation can be general-that is, all-purpose jurisdiction-or it can be specific-that is...