United States: Missouri Amends Venue Provisions To Prevent Forum Shopping

Last Updated: August 8 2019
Article by James Beck

We've posted before about Missouri's wretched venue rules that had allowed litigation tourists to flock to the plaintiffs' favored St. Louis City venue in mass tort (and other) actions by joining dozens of non-residents with a single resident plaintiff. In particular, earlier this year we hailed a Missouri Supreme Court decision, State ex rel. Johnson & Johnson v. Burlison, 567 S.W.3d 168 (Mo. 2019), which rejected the interpretation of joinder rules under which such practices had been permitted. We stated then:

The Supreme Court . . . 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).

Now, in the recently-ended 2019 session, the Missouri Legislature nailed that door shut so that no future court would undo the J&J decision. The new law, Senate Bill 7, approved July 10, 2019, amended three critical provisions of Missouri law, and is retroactive to "any action filed after February 13, 2019" – which just happens to be the date that J&J was decided by the Missouri Supreme Court. Id. Section 1. An easier-to-follow version of S.B. 7 is at 2019 Mo. Legis. Serv. S.B. 7 on Westlaw.

Briefly, here's what S.B. 7 did in the mass tort context.

First, it amended Mo. Stat. §507.040 (Permissive Joinder) to prohibit altogether the joinder of multiple plaintiffs simply because they were suing over the same product. Subsection 1 of that provision now specifies:

Notwithstanding any other provision of law to the contrary, claims arising out of separate purchases of the same product or service, or separate incidents involving the same product or services shall not satisfy this section.

The 90-plaintiff complaints that used to be so common in Missouri are now explicitly improper. To further underscore the point, a new §507.040(2) states:

The general assembly hereby expressly adopts the holding of State ex rel. Johnson & Johnson v. Burlison, No. SC96704, as issued on February 13, 2019, as it relates to joinder and venue.

Second, it amended Mo. Stat. §508.010 (Where Brought), first, to eliminate the ploy of suing a corporate employee to change venue.

(2) . . . [F]or an individual whose conduct at issue was alleged . . . to be in the course and scope of his or her employment with a corporation, the individual's principal place of residence for venue purposes shall be deemed to be the applicable corporation's principal place of residence.

In "tort" cases, the venue as to "that individual plaintiff" for an action against a foreign corporation shall be:

in any county where a defendant corporation's registered agent is located or, if the plaintiff's principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county of the plaintiff's principal place of residence on the date the plaintiff was first injured

§508.010(5)(1).

But what if neither of those things (in-state registered agent or resident plaintiff) exists? Bye-by plaintiff:

If the county where the plaintiff's claim is filed is not a proper venue, that plaintiff shall be transferred to a county where proper venue can be established. If no such county exists in the state of Missouri, the claim shall be dismissed without prejudice.

§508.010(15). Failure to grant such a transfer/dismissal is per se reversible error:

Denial of a motion to transfer venue pursuant to sections 507.040, 507.050, or 508.010, if denied in error, requires reversal, and no finding of prejudice under Missouri supreme court rule 84.13(b) is required for reversal.

§508.010(16).

Third − and unfortunately (but probably necessary to preclude Due Process challenges) − S.B. 7 contains a limited savings clause for otherwise stranded litigation tourists:

Section 2. For actions pending as of February 13, 2019, a plaintiff whose claim has been found to have no county in Missouri in which venue exists may proceed in such venue in Missouri where such claim was dismissed without prejudice only when the court finds that the claim:

(1) Was filed in the Missouri court within the statute of limitations applicable to the claim;

(2) Has no proper venue in the state of Missouri; and

(3) Cannot be maintained, as of August 28, 2019, in any state where the claim may be brought because of applicable statutes of limitations and lack of a savings statute or similar law.

Basically, if a litigation tourist had timely filed a pre-J&J action under the Missouri statute of limitations, s/he gets to stay only if every possible other state's statute of limitations (including the defendant's home state(s)) would preclude the suit. For some guidance as to what states might "lack a savings statute, see our 50-state survey on saving statutes. Note that Section 2 only applies to pre-J&J filed cases. Since J&J gave fair warning to would-be plaintiffs, any of them who persisted with misjoined filings after J&J did so at their own statute-of-limitations peril.

Between J&J and S.B. 7, that should put an end to any more of the blatant St. Louis venue-shopping that has plagued our clients for so long.

Better late than never.

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

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