Albert v. Allied Glove Corp.

• Decision Date: 30 November 2006
• Docket Number: No. 2005-CA-01022-SCT.,2005-CA-01022-SCT.
• Parties: Karl ALBERT, et al. v. ALLIED GLOVE CORPORATION, et al.
• Court: Mississippi Supreme Court

Page 1

944 So.2d 1

Karl ALBERT, et al. v. ALLIED GLOVE CORPORATION, et al.

No. 2005-CA-01022-SCT.

Supreme Court of Mississippi.

November 30, 2006.

Robert Gordon Taylor, III, Robert A. Pritchard, Jackson, Helen Elizabeth Swartzfager, Laurel, attorneys for appellants.

T. Hunt Cole, Jr., Thomas W. Tardy, III, Laura Devaughn Goodson, Jackson, Dominic John Ovella, attorneys for appellees.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. This case is before this Court on appeal from the Circuit Court of Jefferson County, Mississippi, by one hundred and two plaintiffs (hereinafter "Albert") who allege they suffered injuries caused by exposure to asbestos. Albert seeks review of the circuit judge's decision to dismiss their claims without prejudice. Albert argues the judge's retroactive application of the change in joinder rules under Miss. R. Civ. P. 20, pursuant to Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss. 2004) and Harold's Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004), was improper.

¶ 2. This case was originally filed in the Circuit Court of Jefferson County in September of 2000, on behalf of 259 plaintiffs against approximately 98 defendants, alleging various tort and product liability theories related to the plaintiffs' alleged exposure to asbestos. The following month, an amended complaint was filed, adding three plaintiffs. In October of 2004, a portion of the 97 Defendants filed a motion for relief pursuant to Mangialardi. In Mangialardi, 889 So.2d at 495, we found that plaintiffs in an asbestos, masstort litigation case, failed to provide sufficient information to justify joinder. As a result, this Court remanded the case, ordering the trial court to (1) transfer each plaintiff to a court of proper venue and jurisdiction, and (2) dismiss without prejudice the complaint of each plaintiff who failed to provide the court with sufficient information for determining proper venue and jurisdiction. Id.

¶ 3. In the case at bar, after several motions, hearings, and orders following the defendants' motion for relief pursuant to Mangialardi, the trial judge entered an order on April of 2005, dismissing without prejudice Albert's claims. The judge based his ruling on the fact that Albert is neither a resident of this state nor alleges exposure to asbestos in this state. Aggrieved, Albert appeals, assigning four errors to the dismissal without prejudice.

¶ 4. We hold that the trial judge did not err in dismissing without prejudice the out-of-state plaintiffs whose causes of action accrued outside of Mississippi.

ISSUES

I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS' CLAIMS.

II. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY APPLY THE DOCTRINE OF FORUM NON CONVENIENS OR TO TAKE MEASURES TO PROTECT THE PLAINTIFFS' CASES FROM DISMISSAL.

III. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS' RIGHTS UNDER ARTICLE 3 SECTIONS 14 AND 24 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

IV. WHETHER THE CIRCUIT COURT VIOLATED THE PLAINTIFFS' RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

STANDARD OF REVIEW

¶ 5. The standard of review regarding joinder and venue is whether the trial court abused its discretion. Culbert v. Johnson & Johnson, 883 So.2d 550, 552 (Miss.2004); Armond, 866 So.2d at 1097.

DISCUSSION

I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS' CLAIMS.

¶ 6. Albert argues since their claims were already filed when this Court decided Armond and Mangialardi, the changes to Rule 20 should not have been retroactively applied to their pending cases. However, this Court has repeatedly held judicially enunciated rules are to be applied retroactively. See Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) ("Retroactive application is not limited to pending appeals . . . . but also applies to cases awaiting trial."); Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (same); Estate of Stamper v. Edwards, 607 So.2d 1141, 1148 (Miss.1992) ("[F]amiliar prohibitions on ex post facto laws do not preclude the Legislature (or this Court) giving retroactive effect to new enabling, power-conferring rules, or rules of procedure or practice, or new rules of duty and obligation foreshadowed by what had gone before.") (citations omitted). See Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 546 (5th Cir.1992) (Similar to this Court's holding, the Fifth Circuit has similarly ruled "to the maximum extent possible, the amended Rules should be given retroactive application.") (quoting Atlantis Dev. Corp. v. United States, 379 F.2d 818, 823 (5th Cir.1967)).

¶ 7. While Albert concedes this longstanding rule, he cites Johnson v. Memorial Hospital of Gulfport, 732 So.2d 864, 865 (Miss.1998), for the exception that "application of retroactivity should be balanced with a recognition of possible unfairness where certain events transpired under the former rule." See Cain v. McKinnon, 552 So.2d 91, 92 (Miss.1989). Albert argues that after five years of filing his complaint, he is now subject to dismissal without the ability to pursue their actions in another forum due to statutes of limitations concerns or changes in law. However, Albert fails to recognize this Court has not hesitated to dismiss plaintiffs' causes of action without prejudice where the plaintiffs were similarly situated as Albert, and four years after the plaintiffs filed suit. See Amchem Prods., Inc. v. Rogers, 912 So.2d 853, 855 (Miss.2005); Dillard's, Inc. v. Scott 908 So.2d 93, 96 (Miss.2005).

¶ 8. First, it should be made clear that this is not a forum non conveniens case. Rather, it is simply a Rule 20 joinder issue. This Court will continue to recognize the precedent of Armond and Mangialardi and its application to all pending cases in the State of Mississippi, which held plaintiffs may not be joined under Rule 20 unless their claims are connected by a distinct, litigable event. Armond, 866 So.2d at 1099. We have made expressly clear by this line of evolving venue and joinder cases that we will no longer tolerate the presence of cases which do not belong in Mississippi. If we do not apply Mangialardi and the other cases, alongside the changes in Rule 20, to pending suits we will strip our trial courts of a valuable tool in guarding the integrity of our court system. Every case filed involving out-of-state litigants with no connection with Mississippi depletes away the judicial resources of this state.

¶ 9. In Amchem Prods., Inc., 76 plaintiffs filed suit against 136 defendants, alleging tort and product liability claims for exposure to asbestos. 912 So.2d at 855. Of the 76 plaintiffs, only six either lived in Mississippi or alleged exposure to asbestos in this state. Id. at 856. The defendants filed a motion to sever and transfer, or dismiss the plaintiffs' claims, which the trial judge denied. Id. at 856. On appeal this Court held that although the trial judge did not have the benefit of Armond and Mangialardi at the time he denied the defendants' motion, those decisions still applied to the case on review. Id. at 858. In finding that Armond and Mangialardi were controlling, this Court dismissed without prejudice the claims of the remaining 70 out-of-state plaintiffs, who had no connections to Mississippi and whose claims accrued outside the state. Id. at 859. This Court reversed and remanded the trial judge's decision in March of 2005, over four years after the plaintiffs filed their original complaint in February of 2001. Id. at 855-56.

¶ 10. In Dillard's, Inc., this Court also retroactively applied Armond and it progeny where the plaintiffs filed suit before this Court issued the Armond decision. Id. at 96. In Scott, we dismissed without prejudice racial discrimination claims made by out-of-state plaintiffs with no connections to Mississippi and whose causes of action accrued outside of the state. Id. at 94, 98. Moreover, the dismissal came over four years after the plaintiffs filed their complaints. Id. at 94.

¶ 11. We have also held in Canadian National/Illinois Central Railroad v. Smith, 926 So.2d 839, 846 (Miss.2006), that plaintiffs' cases that are not properly before the court in Mississippi, either because the plaintiffs are not residents of the State or do not allege exposure or injury in the State, should be dismissed without prejudice, leaving them with the decision to refile in an appropriate venue.

¶ 12. Furthermore, as neither Albert nor any of the other Joint Appellants have demonstrated that they will not be able to maintain suits in other jurisdictions, there is no evidence of any alleged unfairness that will result from the application of retroactivity in this case. They have made merely a bold, broad allegation only of such alleged prejudice. Therefore, we find that our recent case law and the changes in Rule 20 must be applied to pending cases, and thus the trial court's ruling which dismissed the plaintiffs' suit without prejudice was correct.

II. WHETHER THE CIRCUIT COURT FAILED TO PROPERLY APPLY THE DOCTRINE OF FORUM NON CONVENIENS OR TO TAKE MEASURES TO PROTECT THE PLAINTIFFS' CASES FROM DISMISSAL.

¶ 13. Albert asserts under the doctrine of forum non conveniens, a suitable forum must exist for the plaintiffs to refile their case, and if not, the trial court should issue an order requiring defendants to waive any statute of limitation defenses which could be raised in the alternative forums. See Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 562 (Miss.1988) (holding the doctrine of forum non conveniens cannot be applied to dismiss a case if it is barred elsewhere by a statute of limitations, unless the defendant is willing to waive the statute of limitations defense) (superseded by statute on other...