United States: Game-Changing Opinion On Venue From Missouri Supreme Court

Last Updated: February 21 2019
Article by Steven Boranian

Bexis is known to say that nothing good ever comes out of Missouri, but the Missouri Supreme Court has proven him wrong. We have long made exceptions to Bexis' proclamation for Mark Twain, Maya Angelou, and Kansas City barbeque, and we can now add to that list the Missouri Supreme Court's new opinion in State ex rel. Johnson & Johnson v. Burlison, No. SC96704, 2019 WL 581175 (Mo. Feb. 13, 2019), where the Missouri Supreme Court took another step toward limiting the blatant forum shopping and venue abuse to which Missouri practitioners have become accustomed.

The controversy arises from Missouri's unique and permissive joinder rules, which have been widely used to pile scores of non-resident plaintiffs into St. Louis City (which is different from St. Louis County) by joining their claims with those of one St. Louis City resident. You can read our take on the issue here. As you might expect, we have bemoaned this practice as unjustified and unfair.

The Burlison opinion is a game changer for the better. In Burlison, one St. Louis City resident filed an action in St. Louis City along with dozens of non-Missouri plaintiffs against New Jersey and Delaware defendants. The defendants filed motions to sever the non-residents and transfer their cases to other venues, which the court denied. Id. at *1. After multiple amended petitions (and an equal number of overruled objections to venue), the court set one plaintiff for trial—a resident of St. Louis County (which again is different from the City). After yet another overruled objection to venue in St. Louis City, the defendants petitioned the Supreme Court for a writ of prohibition arguing that venue in St. Louis City was improper. Id. at *2.

The Supreme Court agreed and held that Missouri's permissive joinder rules could not trump the standard venue rules. That is to say, plaintiffs who cannot themselves establish venue in St. Louis City cannot enter that forum through the backdoor by joining with one St. Louis City resident. The opinion's discussion started strong:

The central issue in this case is whether permissive joinder of separate claims may extend venue to a county when, absent joinder, venue in that county would not otherwise be proper for each claim. It cannot and does not. This is evidenced not only by our Court's rules but also nearly 40 years of this Court's precedent.

Id. at *3 (emphasis added). The plaintiff had argued that the venue statute (Mo. Rev. Stat. § 508.010) does not dictate one specific venue when multiple joined plaintiffs claim their injuries occurred both inside and outside Missouri. Moreover, the joinder rule (Civil Procedure Rule 52.05(a)) allows "two of more separate causes of action" to be joined in one petition. Id. Thus, according to the plaintiff, he and the other plaintiffs could unilaterally choose their venue, including St. Louis City, by banding together. Id.

The problem for the plaintiff is that his position runs directly contrary to another Missouri rule—Rule 51.01, which expressly states that the rules of civil procedure "shall not be construed to extend or limit the jurisdiction of the Courts of Missouri or the venue of civil actions therein." Id. (emphasis in original). Because the plaintiff could not have established venue in St. Louis City if he had sued on his own, he was relying on a rule of civil procedure (the joinder rule) to expand venue. The rules and precedent applying them prohibit that result:

What Rule 51.01 and the holding in Turnbough [v. Gaertner, 589 S.W.2d 290, 292 (Mo. 1979)] make clear is joinder of [the plaintiff's] claims with the other claims alleged in the petition cannot extend venue to a county where [the plaintiff's] claims could not otherwise be brought and pursued. Because [the plaintiff's] wife was first injured in St. Louis County, § 508.010.4 dictates the proper venue for [the plaintiff's] claims is St. Louis County. The city of St. Louis is an improper venue . . . ."

Id. at *6 (emphasis added). The Supreme Court therefore ordered the plaintiff's claims severed and transferred to the proper venue.

There were two long dissents, which we will not parse here. We will say, however, that one complains that "the Court holds that no plaintiff or claim can be joined with any other plaintiff or claim unless venue can be established independently for each claim" and that "[i]n the future, numerous claims that previously could have been filed together in one action—and in one venue—must now be filed separately." Id. at *14. The dissent holds this out to be a self-evidently bad thing, but we (and a majority of the Missouri Supreme Court) clearly see this as the correct and proper result. We do not see the good in allowing large groups of unrelated plaintiffs to join their claims together in a forum with which neither they nor their claims bear any relation, and we have always wondered why courts tolerate it. Add the Missouri Supreme Court to the list of those that will not.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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