Getz v. TM Salinas, Inc.

412 S.W.3d 441, 2013 WL 5614226, 2013 Mo. App. LEXIS 1208
CourtMissouri Court of Appeals
DecidedOctober 15, 2013
DocketNo. WD 76251
StatusPublished
Cited by5 cases

This text of 412 S.W.3d 441 (Getz v. TM Salinas, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Getz v. TM Salinas, Inc., 412 S.W.3d 441, 2013 WL 5614226, 2013 Mo. App. LEXIS 1208 (Mo. Ct. App. 2013).

Opinion

LISA WHITE HARDWICK, Judge.

William Getz appeals the circuit court’s judgment dismissing, without prejudice, his petition for damages against TM Salinas, Inc. (“Salinas”). The court dismissed his petition on the basis that the allegations in the petition were conclusory and did not set forth sufficient minimum contacts between Salinas and Missouri to warrant the exercise of personal jurisdiction over Salinas. On appeal, Getz contends his petition alleges facts showing that Salinas purposefully availed itself of the privilege to engage in business in Missouri such that it could reasonably anticipate being haled into a Missouri court. For reasons explained herein, we affirm.

Factual and PROCEDURAL History

Salinas is a corporation that is organized and existing under the laws of Kansas, with its principal place of business in Roe-land Park, Kansas. Salinas owns, operates, maintains, and controls a McDonald’s restaurant on Roe Avenue in Roeland Park and is engaged in the sale of food products for consumption and use by members of the general public.

On July 29, 2010, Getz, a resident of Roeland Park, was a business invitee of Salinas and was on the premises of the Roeland Park McDonald’s for the purpose of buying a boneless chicken sandwich. After buying the sandwich, Getz drove to Jackson County, Missouri, where he consumed the sandwich. The sandwich allegedly contained a bone. According to Getz, as a direct result of consuming the sandwich with the bone in it, he “endured great injury including, but not limited to, physical pain, severe emotional distress, mental suffering, and has incurred expenses related to treatment of the same.”

In May 2012, Getz filed a petition in the circuit court of Jackson County, Missouri, seeking damages against Salinas for these injuries under theories of negligence, res ipsa loquitur, breach of warranty, and strict products liability. Salinas moved to dismiss the petition with prejudice for lack of personal jurisdiction. Salinas argued that it was not subject to Missouri’s long-arm statute, Section 506.500, RSMo 2000, and that it lacked sufficient minimum contacts with Missouri for the court to assert personal jurisdiction.

In ruling on Salinas’s motion to dismiss Getz’s original petition, the court found that Missouri’s long-arm statute extended to Salinas because it was reasonable for Salinas “to have foreseen that a negligent sale at its restaurant could have effects in Missouri.” On the issue of whether Salinas had sufficient minimum contacts with Missouri, however, the court found that the only allegation in Getz’s petition relating Salinas to Missouri was Getz’s action in transporting the sandwich across the state line from Kansas to Missouri. The court determined that action was “quite attenuated and require[d] [Getzj’s own actions and intervention.” Additionally, the court noted that both parties were Kansas residents and that Missouri did “not have any [445]*445specific interest in providing a forum for the litigation of this cause of action.” Moreover, the court noted that, while Jackson County, Missouri, might “serve as a convenient forum for the parties to litigate this matter, a similarly convenient forum can be found in Johnson County, Kansas.” Therefore, the court dismissed the matter without prejudice.

After his original petition was dismissed, Getz filed a second suit for damages against Salinas in Jackson County, Missouri. Getz’s petition in the second suit was substantially similar to his original petition, as it alleged the same injuries and asserted counts of negligence, res ipsa lo-quitur, breach of warranty, and strict products liability. This second petition, however, made additional allegations regarding jurisdiction, including .that Getz was first injured in Jackson County, Missouri; that the court had personal jurisdiction over Salinas under Missouri’s long-arm statute; and that Salinas had sufficient minimum contacts with Missouri such that defending a suit in Missouri did not offend traditional notions of fair play and substantial justice.

To support his contention that Salinas had sufficient minimum contacts with Missouri, Getz further alleged that: (1) the very transitory and expeditious nature of Salinas’s restaurant, a fast-food eatery, virtually guarantees that many patrons will use the “drive-thru” process and then drive the approximately two miles into Missouri; (2) Salinas engages in print, radio, and television advertising within Missouri in an attempt to entice Missouri residents to patronize its McDonald’s and, as a result of this advertising and the restaurant’s proximity to Missouri, Missouri residents are frequently and regularly patrons of the restaurant; (3) Salinas employs Missouri residents to staff its McDonald’s and solicits Missouri residents for employment through an online application process that is readily accessible to Missouri residents; (4) Given the proximity of Salinas’s McDonald’s to the Missouri state line, coupled with the contiguous nature of the geographic area in which the McDonald’s is located, Salinas knew or should have known that people consumed its food products in Missouri; (5) Missouri is a convenient forum because Salinas’s McDonald’s is two miles from the Missouri state line and is closer in proximity to the Jackson County Circuit Court than the proposed Kansas, court.

In response to Getz’s petition in the second suit, Salinas filed a motion to dismiss with prejudice. In its motion, Salinas argued that Getz was precluded from refiling the lawsuit because, even though the dismissal of Getz’s original petition was without prejudice, it had the practical effect of terminating Getz’s claim in the form in which it was cast. Therefore, Salinas contended that Getz’s only option was to appeal. Alternatively, Salinas argued that, like Getz’s original petition, Getz’s second petition lacked allegations sufficient to support a finding of personal jurisdiction.

Getz filed a response in opposition to Salinas’s motion to dismiss. The response included an affidavit, in which Getz stated:

1. During the time that I have lived in the greater Kansas City area, and being a member of this community, I have understood that it is a widespread and universal practice for local businesses on both sides of the border to solicit business on both sides of the border and to do business on both sides of the border whenever possible.
2. I have frequented both Jackson County!,] Missouri and Johnson County, Kansas.
8. In my dealings with [Salinas], I have understood [Salinas] to hold out its [446]*446business to both sides of the Missouri/Kansas border.
4. The Courthouse in Jackson County, Missouri (415 East 12th Street, Kansas City, Missouri) is closer to [Salinas]’s location cited in the PETITION FOR DAMAGES than the Johnson County, Kansas Courthouse located at 100 N. Kansas Ave. Olathe, Kansas.

After Getz filed his response and this affidavit, Salinas filed a reply to which it attached an affidavit of Theresa Salinas, President of Salinas.

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412 S.W.3d 441, 2013 WL 5614226, 2013 Mo. App. LEXIS 1208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/getz-v-tm-salinas-inc-moctapp-2013.