                         United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-2197
                                    ___________
James E. Stevens, individually,          *
                                         *
            Plaintiff-Appellant,         *
                                         *
Jami Lynn Stevens, a minor, by           *
next friend James E. Stevens,            *
                                         *   Appeal from the United States
            Plaintiff,                   *   District Court for the
                                         *   Eastern District of Missouri.
       v.                                *
                                         *
Rebecca J. Redwing; John S.              *
Redwing; Ricky E. Jones; C.              *
Curtis Holmes,                           *
                                         *
            Defendants-Appellees.        *
                                         *

                                   ___________

                          Submitted: September 8, 1997
                                                                Filed: May 29,
1998
                                   ___________

Before HANSEN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                                ___________

HANSEN, Circuit Judge.

      James E. Stevens brought this diversity suit for money damages,
alleging that the defendants committed several state law torts against him
when Rebecca and John
Redwing obtained custody of his minor daughter, Jami Lynn Stevens. The
district court1 dismissed Stevens’ complaint for lack of personal
jurisdiction over the defendants. Stevens had filed an amended complaint
adding a false imprisonment claim on Jami Lynn’s behalf and a 42 U.S.C.
§ 1985 conspiracy claim.      The district court dismissed the amended
complaint as well, ruling that the added counts failed to state claims upon
which relief could be granted. Stevens appeals, and we affirm.

                                          I.

      James Stevens is currently serving a 200-year sentence of
imprisonment with the Missouri Department of Corrections for a 1971 second
degree murder conviction. While on parole, he married Sarah L. Sanders,
and in April 1990, their daughter, Jami Lynn, was born. In December 1991,
Stevens’ wife died in an automobile accident. Stevens continued to have
custody of his young daughter, Jami Lynn, until December 1992, when he was
returned to prison on a parole violation and subsequent conviction. At
that time, the child’s maternal grandparents, the Sanders, began to care
for Jami Lynn. In early 1993, Stevens consented to their appointment as
guardians and conservators for his daughter. His formal consent filed with
the probate division of the Circuit Court of Stone County, Missouri,
recited that "I understand that I shall not have any right or claim to
control or custody of such child . . . ." (Jt. App. at 136.)

      In March 1993, the child’s maternal aunt, Rebecca Redwing, came to
Missouri from her home in Georgia and took Jami Lynn back to Georgia to live
with her and her husband, John Redwing, with the consent of the guardians
and conservators, the custodial grandparents, one of whom was then in ill
health. The Redwings then sought permanent custody of Jami Lynn through the
Georgia state juvenile court. The Sanders




      1
       The Honorable Lawrence O. Davis, United States Magistrate Judge for the
Eastern District of Missouri, trying this case by consent of the parties pursuant to 28
U.S.C. § 636(c) (1994).

                                          -2-
consented to a change of custody in the Georgia proceeding without the prior
approval of the Missouri probate court. Stevens filed a motion to dismiss
the Georgia custody proceedings with the Georgia court and removed the case
to the United States District Court for the Middle District of Georgia. The
federal court remanded the case back to the state court. On June 29, 1993,
Judge George F. Nunn, Jr., Judge of the Superior Court of Houston County,
Georgia, awarded the Redwings permanent custody of Jami Lynn. Stevens took
an appeal of the permanent custody order to the Georgia Court of Appeals
which dismissed it for procedural failures. His petition for certiorari to
the Georgia Supreme Court was denied. The grandparents then petitioned the
Missouri state probate court to terminate their guardianship of Jami Lynn
due to their health problems.     Stevens did not appear in person in the
Missouri action (because he was incarcerated), but he did file numerous
motions and written objections to the proceeding which the Missouri probate
court overruled. (See Jt. App. at 216-18.) The Missouri probate court
terminated the grandparents’ guardianship of Jami Lynn on October 4, 1993,
and relinquished jurisdiction of the child to the state of Georgia. Stevens
filed a notice of appeal with the probate court, but that court apparently
never processed the appeal.

      In January 1995, the Redwings filed a petition in Georgia seeking to
terminate Stevens’ parental rights on grounds that he had sexually abused
Jami Lynn. This termination action was pending when Stevens filed the suit
now at bar. A previous petition to terminate Stevens' parental rights filed
by the Redwings in Georgia had been dismissed because the court found that
Stevens had insufficient contacts with Georgia to justify jurisdiction over
him.

      On March 3, 1995, Stevens filed the present suit in the United States
District Court for the Eastern District of Missouri, seeking money damages
for various torts.    His complaint named as defendants Rebecca and John
Redwing (the child's aunt and uncle who live in Georgia and who then (and
now) had and have actual physical custody of Jami Lynn), Ricky E. Jones
(their attorney in Georgia), and C. Curtis




                                    -3-
Holmes (a psychologist in Georgia who concluded Jami Lynn had suffered
sexual abuse).2 Stevens’ complaint attempts to set forth several state law
torts allegedly committed by the defendants: conspiracy to interfere with
his custody rights, conspiracy to interfere with a contract, conspiracy to
harbor a child, conspiracy to alienate the affections of his daughter,
defamation, malicious prosecution, and intentional infliction of emotional
distress. The defendants moved the district court to dismiss the claims
against them for lack of personal jurisdiction, asserting that there was no
basis for personal jurisdiction under the Missouri long-arm statute and that
they had no minimum contacts with the state of Missouri to satisfy
traditional notions of justice and fair play. Stevens resisted the motion,
asserting that the defendants had purposefully availed themselves of the
benefits and protections of Missouri laws so as to be subject to the court’s
personal jurisdiction. On April 11, 1996, the district court granted the
defendants’ motion to dismiss Stevens’ complaint for lack of personal
jurisdiction and also dismissed Stevens' amended complaint for failure to
state a claim upon which relief could be granted. Stevens timely filed this
appeal.

      Subsequently, on September 9, 1996, the Georgia juvenile court held
an adjudicatory hearing on the Redwings’ petition to terminate Stevens’
parental rights. The Redwings offered the testimony of C. Curtis Holmes,
the psychologist who had evaluated Jami Lynn and concluded that she had been
sexually abused by her father.      Stevens was personally represented by
appointed counsel in the Georgia termination proceedings and testified via
a telephone deposition. On October 17, 1996, the Georgia juvenile court
found that Stevens had sexually abused his daughter, and the




      2
        The complaint also named as a defendant George F. Nunn, the Superior Court
Judge of Houston County, Georgia, who awarded permanent custody of Jami Lynn to
the Redwings. The count against Judge Nunn alleged that he violated Stevens’ civil
rights by holding a hearing and granting the Redwings permanent custody of Jami Lynn
without affording Stevens an opportunity to be heard. The district court dismissed this
count, finding Judge Nunn is entitled to absolute immunity from suit. Stevens does not
challenge this determination on appeal.

                                          -4-
court   terminated Stevens’ parental rights.       Stevens' court-appointed
attorney took no appeal even though Stevens requested him to do so. The
defendants have provided us with the certified record of the Georgia
termination proceedings and have moved to dismiss this appeal as moot on the
basis of the termination of Stevens’ parental rights.

                                    II.

      “The federal court in a diversity case must determine whether [the]
defendant is subject to the court’s jurisdiction under the state long-arm
statute, and if so, whether exercise of that jurisdiction comports with due
process.” Moog World Trade Corp. v. Bancomer, S.A., 90 F.3d 1382, 1384 (8th
Cir. 1996). This two-part analysis requires us first to ask whether the
activity of the defendant falls within the scope of the state statute.
Portnoy v. Defiance, Inc., 951 F.2d 169, 171 (8th Cir. 1991). Second, we
ask whether the assertion of jurisdiction violates federal due process by
considering the defendant’s minimum contacts with the forum: The suit must
not “offend traditional notions of fair play and substantial justice.” Id.
(quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
“Jurisdiction must be based on the act or conduct set forth in the statute
. . . and the cause of action must arise from the nonresident defendant’s
activities in Missouri.” Moog World Trade Corp., 90 F.3d at 1384 (internal
quotations omitted). To survive a motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of demonstrating, by a prima
facie showing, that personal jurisdiction exists. Id.; Digi-Tel Holdings
v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996).       We
review de novo the issue of whether the plaintiff has presented a prima
facie showing of personal jurisdiction, Digi-Tel Holdings, 89 F.3d at 522,
and "we may affirm the district court's judgment on any basis supported by
the record." Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 362 (8th Cir.
1997) (internal quotations omitted).

      To determine whether the court has personal jurisdiction over the
defendants, we first consider whether Stevens has made a prima facie showing
that the claims made




                                    -5-
in his suit fall within the scope of the Missouri long-arm statute. The
Missouri long-arm statute provides in pertinent part that Missouri courts
have personal jurisdiction over nonresidents who either make a contract
within Missouri or commit a tortious act within Missouri. Mo. Rev. Stat.
§ 506.500.1 (1994). When considering whether personal jurisdiction exists
under the long-arm statute, it is permissible to consider matters outside
the pleadings. “[W]hen a question of the District Court's jurisdiction is
raised, either by a party or by the court on its own motion, the court may
inquire, by affidavits or otherwise, into the facts as they exist.” Land
v. Dollar, 330 U.S. 731, 735 n.4 (1947) (internal citations omitted),
overruled by implication on other grounds by Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682 (1949). It is clear from the affidavits and
other record evidence in this case that Stevens' causes of action do not
fall within the state long-arm statute.

      Stevens’ first cause of action alleges a conspiracy to interfere with
his custody of Jami Lynn. In Missouri, interference with custody may only
be asserted by one who has custody rights. See Politte v. Politte, 727
S.W.2d 198, 199-200 (Mo. Ct. App. 1987).        At the time Jami Lynn was
transported from Missouri to Georgia by the defendant Rebecca Redwing and
at all times thereafter, to and including the present, Stevens had no right
to the control or custody of Jami Lynn with which the defendants could
interfere.    He was not her custodial parent.      As noted above, he had
consented to the appointment of the grandparents Sanders as Jami Lynn's
guardians and conservators and acknowledged that he no longer had "any right
or claim to control or custody of such child" and that he understood "that
the appointment is permanent and will not be set aside merely at my
request." (Jt. App. at 136.) Section 475.120.1 of the Missouri Revised
Statutes (Supp. 1997) provides that "[t]he guardian of the person of a minor
shall be entitled to the custody and control of the ward . . . ." In sum,
Stevens voluntarily surrendered physical custody of Jami Lynn to her
grandparents when he was returned to prison for his voluntary criminal
conduct which both violated his parole and earned him an additional weapons
conviction.     He voluntarily surrendered his legal custody rights by
consenting to the appointment of the grandparents Sanders as her
guardians.   This claim is not within the scope of the long-arm statute
because Stevens had no custody right in Missouri with which any of the
defendants could interfere. The most he had was a right to petition the
Missouri probate court to terminate its guardianship and to restore his
right to custody. See Mo. Rev. Stat. § 475.083.4 (1994). While he made
sincere efforts to do so when the Sanders petitioned the Missouri probate
court to terminate the Missouri guardianship and conservatorship, these
defendants cannot be held responsible for any error the Missouri probate
court may have committed in disposing of Stevens' various motions and his
attempted appeal of the order terminating the guardianship.



                                    -6-
      Stevens' complaint also alleges that the defendants conspired to
alienate the affections of his child; however, the claim of alienation of
the affections of a child is not a recognized tort in Missouri. See Hester
v. Barnett, 723 S.W.2d 544, 555-56 (Mo. Ct. App. 1987). Likewise, Stevens’
claim of intentional infliction of emotional harm is not a tort in this
context. An “action for intentional infliction of emotional distress cannot
be maintained where the underlying claim for alienation of affection is not
actionable and the emotional distress is the alleged consequence of the same
acts which caused the child[] to separate from the parent.” R.J. v. S.L.J.,
810 S.W.2d 608, 609 (Mo. Ct. App. 1991). Stevens alleges the defendants
conspired to harbor his child, but even assuming this is a valid tort in
Missouri, it may only be brought by a custodial parent, which Stevens is
not. See Kipper v. Vokolek, 546 S.W.2d 521, 525-26 (Mo. Ct. App. 1977); see
also Meikle v. Van Biber, 745 S.W.2d 714, 716-17 (Mo. Ct. App. 1987).
Because none of these activities allegedly engaged in by the defendants is
a tort in Missouri, or if so, one which Stevens can assert, it follows that
the Missouri long-arm statute is just not applicable to the defendants on
these claims.

      Another of Stevens' allegations is that the defendants conspired to
interfere with an alleged contract between him and Jami Lynn's grandparents,
the Sanders, concerning the care and custody of Jami Lynn. Paragraphs 39
and 43 of the amended complaint allege that between December 26 and December
31, 1992, Stevens asked the Sanders




                                    -7-
to act as care-givers to Jami Lynn while he was incarcerated and that they
agreed to do so, including an agreement by them to return physical
possession of Jami Lynn to Stevens upon his release from confinement.
Stevens alleges that as consideration for the agreement he gave the Sanders
his household furniture, household appliances, power tools, and assorted
other items. Stevens further alleges that he executed a power of attorney
in the Sanders' favor in order to empower them to care for Jami Lynn. He
claims that the defendants' actions interfered with his alleged contract and
caused the Sanders to breach the contract he says he had with them. Stevens
further alleges in paragraph 56 that but for the acts of the defendants in
pursuit of their conspiracy the contract between him and the Sanders would
have been performed and not breached by the Sanders. There are affidavits
from the Sanders (Jt. App. at 30-33) which deny the existence of any such
contract.

      In Missouri, "[t]he associating of individuals for the purpose of
causing a breach of contract is an unlawful conspiracy; the action for such
a wrong sounds in tort." Garrity v. A.I. Processors, 850 S.W.2d 413, 418
(Mo. Ct. App. 1993).     The conspiracy itself is not actionable.      Some
wrongful act to the plaintiff's damage must have been done by one or more
of the defendants, and the fact of a conspiracy merely bears on the
liability of the various defendants as joint tortfeasors.       Id. (citing
Royster v. Baker, 365 S.W.2d 496, 499 (Mo. 1963)).

      The fundamental flaw in Stevens' contract claim is that the
subsequently created state court guardianship and conservatorship for Jami
Lynn, done at Stevens' request (see paragraph 44 of the complaint), made the
performance by the Sanders of the alleged contract legally impossible. They
no longer had the voluntary ability to return custody of Jami Lynn to
Stevens, and Stevens' acknowledgment that he no longer had "any right or
claim to control or custody" of Jami Lynn during the guardianship
proceedings says as much.      We believe that Stevens, having asked and
consented to placing the grandparents in a position where they could not
freely perform the alleged




                                    -8-
contract, has no standing to assert that others later interfered with the
contract or caused the grandparents to breach it.


      Stevens’ complaint set forth three counts of defamation based on
allegations that some of the defendants made defamatory statements to the
effect that Stevens had sexually abused Jami Lynn.          In the Georgia
termination proceedings where Stevens appeared, the court specifically found
that Stevens had sexually abused his daughter. Because the Georgia court
found these statements to be true, no tort of defamation occurred. Truth
is an absolute defense to defamation, Rice v. Hodapp, 919 S.W.2d 240, 243
(Mo. 1996) (en banc), and we must give full faith and credit to state court
judgments. See Lommen v. City of East Grand Forks, 97 F.3d 272, 274 (8th
Cir.   1996).   Stevens makes two arguments against the validity of the
Georgia termination decree.     First, he claims that he had insufficient
minimum contacts with Georgia to support its jurisdiction over him. The
Georgia trial court ruled against him, pointing out that Stevens had availed
himself of the Georgia courts by appealing the prior custody proceedings to
the Georgia Court of Appeals, and by trying to remove the custody case to
the federal court in Georgia. Stevens' second argument is that the Georgia
termination court had no jurisdiction over Jami Lynn because she was present
in Georgia only because she had been unlawfully removed from the
jurisdiction of the Missouri probate court.           The record, however,
establishes that by the time the second termination proceedings were begun
in Georgia, the Missouri probate court had terminated the Missouri
guardianship proceedings after specifically finding by clear and convincing
evidence that jurisdiction over Jami Lynn should be relinquished to the
Georgia courts because it was in Jami Lynn's best interests to do so. (Jt.
App. at 217.) Accordingly, we do not believe either of Stevens' arguments
prevents the Georgia decree from being awarded full faith and credit.
Further, we respectfully decline to serve as a surrogate for a Georgia state
appellate court with respect to the termination judgment. Stevens has not
made a prima facie showing that any alleged defamation




                                    -9-
occurred in Missouri since the alleged defamatory statements asserted in his
complaint have been judicially found to be true by the Georgia court.

      Stevens' claim of malicious prosecution likewise fails to allege a
tort in Missouri. In an action for malicious prosecution, a plaintiff must
plead and prove, among other things, that the proceedings terminated in the
plaintiff's favor.    See Bramon v. U-Haul, Inc., 945 S.W.2d 676, 684 (Mo.
Ct. App. 1997). Stevens' malicious prosecution claim rests on three Georgia
proceedings brought by the Redwings against him. The first proceeding was
a petition for termination of parental rights filed in July 1993, which the
Redwings dismissed without prejudice in November 1993, after they had
brought an adoption petition. The second was the adoption petition filed
in October 1993, seeking to adopt Jami Lynn, which was dismissed without
prejudice by the Redwings in February 1994. The third was a petition for
termination of Stevens' parental rights which was filed in April 1994. It
was terminated on the basis that the Georgia court had no personal
jurisdiction over Stevens and specifically provided that the merits of the
case were not reached.     The Redwings later refiled for termination of
Stevens' parental rights and the Georgia court, over Stevens' renewed
jurisdictional objections, found it had personal jurisdiction and terminated
his parental rights. It is clear to us that Stevens cannot allege that the
Georgia proceedings to terminate his parental rights ended in his favor.
In Missouri, a dismissal without prejudice constitutes a termination in
favor of the defendant for the purposes of a subsequent malicious
prosecution suit by him only where the party who initiated the case
manifests an intent to abandon it.      Absent such a showing, a dismissal
without prejudice does not constitute a termination of the case in favor of
the defendant. Shinn v. Bank of Crocker, 803 S.W.2d 621, 626 (Mo. Ct. App.
1990) (collecting and discussing Missouri cases). Here the record clearly
shows that the Redwings did not abandon their efforts to terminate Stevens'
parental rights after the dismissals without prejudice, and that both the
custody and termination proceedings actually ended adverse to Stevens'
interests.




                                   -10-
      In his argument on appeal, Stevens' court-appointed attorney
characterizes Stevens' claims much differently than does Stevens' complaint.
His attorney argued that two fundamental constitutional rights are at issue
-- the ability to be a parent and meaningful access to the courts. The
original complaint, however, does not state either of these claims and does
not name any state actors as defendants aside from Judge Nunn, whose
dismissal from this suit Stevens does not contest. After considering the
nature of the claims stated in his complaint, we conclude, as did the
district court, that Stevens failed to make a prima facie showing that
personal jurisdiction over any of the defendants exists under the Missouri
long-arm statute. We also conclude that the district court was correct in
dismissing the two counts added in the amended complaint for the reasons
expressed in the district court’s memorandum opinion.

      Stevens argues that it was improper for the district court to consider
the nature of his claims, and that by considering matters outside the
pleadings, the district court in effect improperly converted the defendants'
motion to dismiss for lack of personal jurisdiction into a motion for
summary judgment. We disagree. As shown above, it was necessary for the
district court to consider first whether Stevens' claims fall within the
ambit of the Missouri long-arm statute in order to determine whether
personal jurisdiction exists over the nonresident defendants. Moreover, it
was proper for the district court to consider matters outside the pleadings
to determine the jurisdictional facts. See Land, 330 U.S. at 735 n.4.

      Stevens also contends that the district court abused its discretion by
denying his motion for appointment of counsel.       We review the district
court's denial of Stevens' request for appointment of counsel for an abuse
of discretion. Williams v. Groose, 979 F.2d 1335, 1337 (8th Cir. 1992).
A pro se litigant has no statutory or constitutional right to have counsel
appointed in a civil case. See Wiggins v. Sargent, 753 F.2d 663, 668 (8th
Cir. 1985). When determining whether to appoint counsel for an indigent
civil litigant, the district court considers relevant factors such as the
complexity of the case, the ability of the indigent litigant to investigate
the facts, the existence of conflicting




                                   -11-
testimony, and the ability of the indigent to present his claim.        See
Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986). In this case,
the district court denied appointment of counsel, concluding that neither
the facts nor the claims are complex.         Stevens' damages claims are
straightforward and he adequately presented the facts of his claims, though
they are insufficient to come within the scope of the state long-arm
statute. We conclude that the district court did not abuse its discretion
by denying Stevens' request for appointment of counsel in that court.

      Because Stevens failed to present a prima facie showing that his
claims against the defendants are within the scope of the Missouri long-arm
statute, there was and is no personal jurisdiction over the defendants for
a federal court sitting in Missouri to exercise. Consequently, we may not
need to address the question of whether any of the defendants had the
requisite minimum contacts with Missouri under the Due Process Clause to
justify their being haled into court in Missouri. However, in the interest
of completeness, we note that with the exception of Rebecca Redwing's trip
into Missouri to transport Jami Lynn to Georgia and Rebecca Redwing's later
appearance by counsel in the Missouri probate proceedings terminating the
grandparents' Missouri guardianship and conservatorship of Jami Lynn, not
one of the other defendants had or has the requisite minimum contacts with
Missouri "such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice." International Shoe Co., 326
U.S. at 316 (internal quotations and citations omitted). As noted earlier,
defendant Ricky E. Jones is the Georgia lawyer who represented the Redwings
in the Georgia litigation, and the defendant C. Curtis Holmes is the
psychologist in Georgia who examined and evaluated Jami Lynn and who
testified in the Georgia proceedings that in his professional opinion, she
had been sexually abused by her father. John S. Redwing is the spouse of
Rebecca Redwing. Based on the record, neither Mr. Jones, Dr. Holmes, or Mr.
Redwing have by any of their acts "'purposely avail[ed] [themselves] of the
privilege of conducting activities within [Missouri], thus invoking the
benefits and protections of its laws.'" Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S.




                                   -12-
235, 253 (1958)); see also Minnesota Mining & Mfg. v. Nippon Carbide Indus.,
63 F.3d 694, 697 (8th Cir. 1995), cert. denied, 516 U.S. 1184 (1996).
Consequently, the district court's dismissal of Stevens' complaint as
against those defendants was entirely correct.

      Because we have addressed the merits of the appeal, we deny the
defendants' mootness-based motion to dismiss it.


                                   III.

      We have considered all of Stevens' claims of error and find them to be
without merit.    We express our sincere appreciation to Stevens' court-
appointed appellate counsel for providing able, competent, and zealous
representation in this appeal.

     Accordingly, we affirm the judgment of the district court.

     A true copy.

           Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -13-
