Snelling v. Publishers Clearing House, Inc. , 90 F. App'x 973 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2195
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Lonnie D. Snelling, *
*
Appellant, *
*
v. *
*
Publishers Clearing House, Inc.; * Appeal from the United States
Publishers Clearing House; Campus * District Court for the
Subscriptions, Inc.; PHC Executives, * Eastern District of Missouri.
Inc.; Deborah J. Holland, Employee; *
Robin B. Smith, Employee; Andrew C. * [UNPUBLISHED]
Goldberg, Employee; Margarete *
Thuemmler, Employee; Dorothy *
Addeo, Employee; William Delano, *
Employee; Peter E. Derow, Employee; *
Patrick R. Edwards, Employee; Ira *
D. Hall, Employee; William B. *
O’Connor, Employee; John Princiotta, *
Employee, *
*
Appellees. *
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Submitted: January 28, 2004
Filed: March 11, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Lonnie D. Snelling appeals the dismissal of his civil complaint asserting
violations of Missouri law and the Racketeer Influenced and Corrupt Organizations
Act (RICO). After careful review of the record we conclude the district court
properly dismissed Snelling’s claims against Publishers Clearing House, Inc. for lack
of personal jurisdiction. Cf. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781
n.13 (1984). The district court also properly dismissed Snelling’s claim for negligent
infliction of emotional distress. See Gibson v. Brewer, 952 S.W.2d 239, 248-49 (Mo.
1997) (en banc) (to prevail on claim of negligent infliction of emotional distress,
plaintiff must show that defendant should have realized its conduct involved
unreasonable risk of causing distress, and emotional distress or mental injury must
be medically diagnosable and sufficiently severe to be medically significant).
The district court erred, however, in dismissing Snelling’s fraud and RICO
claims. In doing so, the court relied on exhibits defendants submitted in support of
their motion to dismiss, but Snelling had disputed the authenticity of these exhibits.
In these circumstances, the district court should have converted the motion to one for
summary judgment and allowed Snelling to respond, or it should have ruled on the
motion to dismiss without considering defendants’ exhibits. We cannot say this error
was harmless. Cf. Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d
1001, 1005-06 (8th Cir. 2000) (failure to afford any notice, actual or constructive, that
motion to dismiss would be treated as one for summary judgment required reversal
where nonmovants asserted on appeal that they could have produced countervailing
affidavits, and it could not be said that outcome would necessarily be in movants’
favor).
Accordingly, we affirm in part and remand for further proceedings on the fraud
and RICO claims.
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