State ex rel. Parker v. Adolf

CARL R. GAERTNER, Presiding Judge,

dissenting.

I respectfully dissent. Plaintiff’s petition alleges that defendant Aron Corporation sold and supplied the allegedly defective products to defendant Target for resale in Missouri. On or about September 3, 1986, defendant Aron filed its motion to dismiss alleging generally that it was not subject to the jurisdiction of Missouri courts. On October 9, 1986, this motion was supported by an affidavit alleging only that defendant Aron was a New York corporation, that it had no office or employees in Missouri, that any contract to sell suspenders would have been made in Minnesota or in New York and that it was not a party to any contract made in Missouri to sell suspenders. Eighteen days later the motion to dismiss was heard and sustained. At this hearing relator was denied the opportunity to file interrogatories pertaining to facts relating to jurisdiction.

Once jurisdiction is challenged by a defendant the burden of establishing jurisdiction is upon the plaintiff. Here, the allegations of plaintiff’s petition, if true, are sufficient. Plaintiff was denied the opportunity to prove the truth of her allegations through interrogatories which might provide admissions that defendant Aron directed the shipment of the allegedly defective products to Missouri for retail sale. The affidavit supporting defendant’s motion to dismiss does not deny its involvement in the stream of commerce through which the

*134product moved from manufacture in New York to sale in Missouri. I believe the respondent’s refusal to permit the filing of interrogatories seeking information which might tend to prove the undenied allegations of the petition was an abuse of discretion warranting the issuance of our writ. See State ex rel. Deere and Co. v. Pinnell, 454 S.W.2d 889 (Mo.banc 1970).

Since Rule 57.01(a) allows twenty days in which to answer interrogatories, I do not believe eighteen days after the affidavit was filed is ample time in which to have filed interrogatories.

Accordingly, I must dissent.