The Ongoing Venue Saga: Linthicum After Three Years

 by Stephen M. Schoenbeck¹

In October 2001, the Supreme Court of Missouri issued its opinion in State ex rel. Linthicum v. Calvin, rejecting a two-step procedure that some attorneys had used to place venue in favored locations. To date the Court's opinion appears to have achieved an effective solution to the problem.

In October 23, 2001, the Supreme Court of Missouri handed down its opinion in State ex rel. Linthicum v. Calvin.² Somewhat to the surprise of the litigants themselves, the majority of the Court addressed the problem of the venue "two-step" with a rather deft sidestep of its own, taking the occasion to redefine the meaning of when a lawsuit is "brought." Not surprisingly, the Court's minority predicted all manner of dire consequences. It is no doubt too early to assess the long-term effect of the decision, or even to hazard a guess as to whether the opinion will survive the shift in the Court's majority, but the passage of three years at least affords some perspective to consider whether the Court achieved a workable solution to the problem.

To set the stage for this discussion, all that is needed is to review the facts of the Linthicum case. The plaintiff in the underlying action, Kathy Penny, was injured when she fell from a car of a Ferris wheel at the St. Francois County Fair in Farmington. On August 28, 1998, Ms. Penny initially filed a one-count petition in the circuit court of St. Francois County against the operator of the Ferris wheel, a resident of Butler County. Plaintiff subsequently filed amended petitions in the St. Francois County suit, bringing in two corporations that were previous owners of the Ferris wheel.

On June 20, 2000, almost two years after she had first filed suit, plaintiff refiled her action in the City of St. Louis, having voluntarily dismissed the St. Francois County suit without prejudice just one week earlier. In refiling her action, Ms. Penny named as the sole defendant one Harold Linthicum, a non-resident individual who had been employed by the operator of the Ferris wheel, but who had not been named in the original suit. On the following day, Ms. Penny was granted leave to amend her petition and to add as defendants the three defendants from the St. Francois County action, as well as two additional defendants. Plaintiff premised venue in the city of St. Louis on the fact that the sole defendant when the case was brought in the city was a non-resident individual, and that venue was therefore proper under § 508.010(4), RSMo 2000, which provides that where all defendants are non-residents, suit may be brought in any county. Linthicum moved to transfer venue, which was denied by the trial court, and there followed the writ proceeding that resulted in the Court's en banc ruling on October 23, 2001.

In opposing venue in the City of St. Louis, Linthicum argued that plaintiff's failure to include the St. Francois County defendants in the original City of St. Louis petition constituted "pretensive non-joinder."³ To this author's knowledge, no Missouri court has officially adopted this theory, but it is based on analogy to the well-recognized doctrine of pretensive joinder. Missouri courts have applied the latter doctrine in holding that a case may be dismissed from a particular venue where a defendant has been "joined pretensively," which may be established either by a showing that a petition on its face fails to state a claim against the joined defendant or if there is, in fact, no cause of action against the joined defendant, even though the petition on its face states a cause of action.⁴

The four-judge majority in Linthicum issued a per curiam opinion in which they chose not to address the claim of pretensive non-joinder. Rather, the Court took the novel approach of reasoning that while it was true that venue in the city may have been appropriate when it was originally "brought," the action was actually brought again when plaintiff filed her amended petition the next day, naming Missouri residents whose presence would have defeated venue had they been included in the original refiled lawsuit. This approach allowed the Court to sidestep the rather thorny question of when is "non-joinder" pretensive⁵ and still give equal effect to the venue rights of various defendants, regardless of when they were added to the suit. The majority remanded the case to the trial court "to reconsider the propriety of venue as of the day the underlying petition was amended to include Missouri residents."⁶ Presumably the Court contemplated that the trial court would then reject venue in the City of St. Louis, given the fact that the lineup of defendants would then have included resident and non-resident individuals and corporations, none of whom or which was a resident of the City of St. Louis.

The majority's opinion, which has been characterized as "a drastic departure" from prior Missouri case law,⁷ prompted several spirited responses. Judge White dissented, expressing what almost certainly was the view of every attorney who had read the Court's opinion in State ex rel. DePaul Health Center v. Mummert,⁸ namely, that when the Court said that "venue is determined as the case stands when brought. . . ." the Court was giving a bright-line test for the determination of venue based on the time of the original filing of the suit.⁹ Judge White expressed the opinion that the majority's decision "plays legal havoc" and would result in "a neverending and unpredictable tide leaving the parties only to guess as to which courthouse door they ultimately will be washed ashore."¹⁰

As previously noted, Judge Stith, in a special concurrence and dissent, commented on the fact that the majority had chosen not to address Linthicum's contention that venue in the City of St. Louis was improper because of pretensive non-joinder. Judge Stith agreed with the majority's perceived purpose of creating a set of rules that are not capable of manipulation so as to allow the bringing of suit in venues "in which verdicts are often thought to be high, such as St. Louis City," but expressed the fear that the Court's solution to the problem "does so at the cost of rendering venue subject to redetermination in other circumstances, too, through a process that itself can be subjected to manipulation."¹¹ Judge Stith listed several potential cases where the Court's opinion could create new problems.

Judge Wolff joined in the opinions of Judges White and Stith, and proposed his own solution to the underlying problem of the jockeying for venue in the City of St. Louis: a combining of the jury pools in the City of St. Louis and St. Louis County.¹² Judge Wolff recognized that such a proposal would require changes in Missouri law and possibly in the state constitution with respect to criminal case juries, but opined, "Combining the jury pools of the city and county would eliminate the major reason for venue manipulation in those jurisdictions" and would more evenly distribute "the privilege and burden of jury service" in the St. Louis community.¹³

In the three years since Linthicum was decided, only four cases have applied the decision to a situation involving the subsequent addition of defendant parties.¹⁴ Each of the cases has followed the Linthicum decision, although with continuing dissents by Judge White in the cases decided by the Supreme Court.

The State ex rel. Landstar Range, Inc. v. Dean and State ex rel. Miracle Recreation Equip. Co. v. O'Malley cases were issued on the same day, and both were per curiam opinions remanding the cases to the trial courts for further consideration in light of the Court's recent opinion in Linthicum. In Landstar Ranger, a resident of Newton County who had been involved in a motor vehicle accident in his home county filed suit in Jackson County against a Florida corporation having a registered agent located in St. Louis County. The plaintiff had based venue on § 508.070, RSMo 2000, a special venue provision relating to motor carriers that permits suit wherever the carrier operates. Shortly after suit was filed, the plaintiff amended his petition to name an Ohio resident and another resident of Newton County as additional defendants. Following the amendment of the petition, the defendants moved for a change of venue, contending that the case was then governed by § 508.010, which applies when there are multiple defendants consisting of individuals and corporations. The trial court denied the motion for change of venue, and defendants then sought mandamus.

In a brief opinion, the Supreme Court of Missouri noted that the trial court did not have the benefit of the Court's opinion in Linthicum when it denied the motions for change of venue, and ordered the trial court to determine venue in accord with that decision. Significantly, Judges Wolff and Stith joined the majority from Linthicum in granting mandamus. Only Judge White dissented, focusing primarily on what he saw as an improper use of mandamus.

In Miracle Recreation Equip., the case concerned a motor vehicle accident in Linn County. The suit was filed in Jackson County by a Missouri resident naming Roberts, an Iowa resident truck driver, as the sole defendant. Roberts then removed the case to federal court, and while it was pending there, plaintiff amended to add Roberts's employer, an Iowa corporation with its principal place of business in Monett. When the case was remanded to state court due to the failure of diversity jurisdiction, both defendants sought a change of venue, arguing that the addition of the Missouri resident corporate defendant rendered Jackson County no longer a county of proper venue. After the trial court denied the motion to transfer, the Supreme Court of Missouri issued a writ of mandamus, directing the trial court to reconsider its decision in light of Linthicum. Once again Judges Wolff and Stith joined the Linthicum majority, and once again Judge White dissented.

In State ex rel. Budd Co. v. O'Malley, the plaintiff, a resident of Phelps County, was injured while inflating a tire. Plaintiff and his wife filed suit in Jackson County against three corporations and an individual. After the individual defendant, also a resident of Phelps County, was dismissed from the suit, the corporate defendants moved for a transfer to Phelps County, which was granted by the court. Plaintiff thereupon dismissed his lawsuit and refiled in Jackson County on December 7, 1999, naming only the corporate defendants, and basing venue on § 508.040. The next day, plaintiff amended his petition to again name the individual defendant who had been previously dismissed, and the corporate defendants again moved to transfer the case. The trial court denied the motion and then subsequently denied a motion to reconsider that was filed after the Supreme Court's decision in Linthicum had been issued, reasoning that the "retroactive application of Linthicum will result in hardship for plaintiffs."¹⁵

The corporate defendants then sought a writ of prohibition, which was granted by the Missouri Court of Appeals for the Western District. The court expressly followed Linthicum, noting that when the individual defendant was brought back into the case by plaintiff's amended petition, "the relevant statute in determining venue turned from section 508.040 to section 508.010 because the suit was no longer solely against corporations."¹⁶ The court noted that the trial court was obligated under Linthicum to make the determination of venue as of the time the individual was brought back into the case. Under § 508.010, the only appropriate venue was Phelps County, where the plaintiffs and the individual defendant resided and where the cause of action had accrued.

The court also held in Budd Co. that it was irrelevant that the parties challenging venue were the corporate defendants and not the individual defendant who had been brought back into the case by the amended petition. The court cited the language from Linthicum where the Supreme Court had noted that its interpretation of the venue statute "protects all party defendants equally."¹⁷

The most recently published case in which any Missouri court has cited Linthicum in connection with the two-step venue maneuver was State ex rel. Bierman v. Neill.¹⁸ In that case, the plaintiff brought a malpractice suit in the City of St. Louis on April 13, 2001, against a resident of California. Five days later the plaintiff added two St. Louis County residents as additional defendants, one individual and one corporation. Defendants timely moved to transfer venue to St. Louis County on the basis of pretensive non-joinder, and the trial court denied the motion. Defendants moved to reconsider the ruling after the Supreme Court issued the Linthicum opinion in October 2001, but the trial court denied the motion on the grounds that defendants had not submitted evidence at the original pre-Linthicum hearing to determine whether venue in the City of St. Louis was proper under a different statute, § 508.010(6). That statute provides that venue in a tort action is proper in the county where the cause of action accrues. Although defendants then submitted unrebutted affidavits establishing that plaintiff's cause of action accrued not in the City of St. Louis, but in St. Louis County, the trial court again denied the request for reconsideration. The Supreme Court of Missouri then granted a writ of prohibition.

In the writ proceeding, plaintiff's only defense of venue in the City of St. Louis was that venue was proper under § 508.010(4) when the suit was originally brought, as the non-resident doctor was the only defendant at the time. The Supreme Court simply observed:

After this Court's holding in Linthicum, and the consequence that venue in St. Louis City could no longer be based on subsection (4), respondent should have granted defendants' motion to reconsider.¹⁹

The Bierman opinion was authored by Judge Limbaugh, with concurrences by five judges, including Special Judge Breckenridge. Judge White again dissented, for the reasons originally expressed in his dissent in Linthicum, and Judge Teitelman did not participate in the decision.

To this point it would appear that the Linthicum decision has not generated significant controversy, but has been followed consistently wherever the circumstances warrant. One possible explanation is that plaintiffs' counsel may be showing a preference for venue where the cause of action accrues,²⁰ one certain way to avoid Judge White's specter of the "unpredictable tide" washing them ashore at the doors of an unintended courthouse.²¹

Another explanation may be that the circumstances are not all that common where the late addition of a party defendant will affect venue. One obvious case where venue may be affected is the Budd Co. fact pattern, discussed above, where the addition of an individual defendant renders the corporate venue section, § 508.040, inapplicable.²² There, however, venue will only be affected if the individual being added is a resident of a different Missouri county from the chosen forum. Another case where venue may be affected is the situation where a new Missouri defendant residing outside the chosen venue is added to a case where the forum has no connection with the litigation or the litigants. It may be questioned whether the plaintiff in the latter situation has a legitimate complaint if his chosen venue is later disturbed.

A case this author handled that illustrates the second of the two above-described situations involved Joplin residents who were killed in a boating accident at the Lake of the Ozarks. The representative plaintiffs, most of whom lived in the Joplin area, brought their suit in the City of St. Louis against a non-resident boat surveyor and then amended their petition the next day to include a Missouri resident of Newton County, several non-resident corporate defendants, and one corporate defendant that maintained a registered office in St. Louis County.²³ No party was a resident of the City of St. Louis, and the cause of action clearly did not accrue there. Clearly, Linthicum would dictate that the case should have been transferred out of the City of St. Louis, regardless of how long it may have been pending there.

It may be questioned whether Linthicum has unfairly removed one of the weapons in the plaintiff's attorney's arsenal. In her dissent in Linthicum, Judge Stith cites the argument of proponents of the two-step maneuver that utilization of the venue statutes to secure a more favorable forum is no less permissible than a corporation's seeking to affect venue by the strategic location of its registered office.²⁴ As long as there are clients and advocates, attorneys will properly attempt to apply the law to the benefit - or the perceived benefit - of their clients. This author would suggest, however, that any appropriate scheme for determining venue should guarantee to litigants that there is a forum reasonably close to their residence that can hear the case on a reasonably prompt basis. Maximizing recovery may be an obvious - and legitimate - goal of plaintiff's counsel. It should not be a primary concern of the state's legislature or the courts. The Linthicum case struck an appropriate balance in removing one device that permitted the manipulation of the venue statutes for the purposes of maximizing recovery; it has not affected anyone's right of access to the courts.

Footnotes

¹ Mr. Schoenbeck is a member of Lathrop & Gage, L.C., in St. Louis. He has served on the Supreme Court of Missouri Committee on Civil Jury Instructions since 1993, and is a 1974 graduate of St. Louis University School of Law.

² 57 S.W.3d 855 (Mo. banc 2001).

³ See the separate opinion of Judge Stith, 57 S.W.3d at 865.

⁴ See State ex rel. Doe Run Resources Corp. v. Neill, 128 S.W.3d 502, 504 (Mo. banc 2004), citing State ex rel. Malone v. Mummert, 889 S.W.2d 822, 824 (Mo. banc 1994).

⁵ While it is easy to envision a scenario - such as the Linthicum case itself - where the non-joinder of a defendant can be said to be "pretensive," it may be difficult as a practical matter to distinguish such a case from the situation where a plaintiff chooses not to name a particular defendant for strategic reasons or from the situation where subsequent discovery reveals a party who needs to be added to afford complete relief.

⁶ Linthicum, 57 S.W.3d at 858.

⁷ See State ex rel. Budd Co. v. O'Malley, 114 S.W.3d 266, 269 (Mo. App. W.D. 2002).

⁸ 870 S.W.2d 820 (Mo. banc 1994).

⁹ Linthicum, 57 S.W.3d at 868, citing DePaul Health Center, 870 S.W.2d at 823 (emphasis by Judge White).

¹⁰ Linthicum, 57 S.W.3d at 869, 871.

¹¹ Id. at 865.

¹² Id. at 859.

¹³ Id. at 862.

¹⁴ See: State ex rel. Bierman v. Neill, 90 S.W.3d 464 (Mo. banc 2002); State ex rel. Landstar Ranger, Inc. v. Dean, 62 S.W.3d 405 (Mo. banc 2001); State ex rel. Miracle Recreation Equip. Co. v. O'Malley, 62 S.W.3d 407 (Mo. banc 2001); and State ex rel. Budd Co. v. O'Malley, 114 S.W.3d 266 (Mo. App. W.D. 2002).

¹⁵ State ex rel. Budd Co. v. O'Malley, 114 S.W.3d 266, 268 (Mo. App. W.D. 2002).

¹⁶ Id. at 269.

¹⁷ Id. at 271, quoting Linthicum, 57 S.W.3d at 858 (emphasis added by the Budd Co. court).

¹⁸ 90 S.W.3d 464 (Mo. banc 2002).

¹⁹ Id. at 465.

²⁰ See § 508.010(6), RSMo 2000, which provides, in relevant part, that "[i]n all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties . . ." (emphasis added).

²¹ Linthicum, 57 S.W.3d at 871.

²² A peculiarity of Missouri venue law is that the corporate venue statute, § 508.040, RSMo 2000, does not apply where corporations are sued along with one or more individuals. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 197 (Mo. banc 1991). Another wrinkle of Missouri law is that a corporation's residence for purposes of § 508.040 is the location of an office or agent "for the transaction of their usual and customary business," whereas its residence for purposes of § 508.010, where it is sued along with one or more individuals, is the location of its registered office. Id. at 198. See: State ex rel. Whaley v. Gaertner, 605 S.W.2d 506 (Mo. App. E.D. 1980).

²³ Plaintiffs had previously filed a separate action in the City of St. Louis against all of the same defendants, which action was transferred to St. Louis County as a result of a motion to transfer, and then subsequently dismissed without prejudice.

²⁴ Linthicum, 57 S.W.3d at 865, n. 2.

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 2 - March-April 2005