Alexander v. Ac and S, Inc., 2005-CA-01031-SCT.
| Decision Date | 18 January 2007 |
| Docket Number | No. 2005-CA-01031-SCT.,2005-CA-01031-SCT. |
| Citation | 947 So.2d 891 |
| Parties | Billy G. ALEXANDER, et al. v. AC AND S, INC. f/k/a Armstrong Contracting & Supply Company, Inc., et al. |
| Court | Mississippi Supreme Court |
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, Attorneys for Appellees.
EN BANC.
¶ 1. This case is before this Court on appeal from the Circuit Court of Jefferson County, Mississippi, by plaintiffs (hereinafter "Alexander") who allege they suffered injuries caused by exposure to asbestos. The claims of plaintiffs in the action who were residents of Mississippi, or who alleged exposure to asbestos in the state, were transferred to the circuit court in the county where each plaintiff lived or claimed exposure to asbestos. Additionally, the claims of 159 plaintiffs who were neither residents of the state of Mississippi nor claimed exposure to asbestos within the state were "dismissed without prejudice pursuant to the recent decisions of the Mississippi Supreme Court." The first-named plaintiff of the 159 was Billy G. Alexander, a resident of Muscle Shoals, Alabama, who claimed he had been exposed to asbestos in Alabama. Concerned about their ability to maintain suit in other jurisdictions, those 159 persons filed this appeal.
¶ 2. This case was originally filed on April 27, 2000. There were fifteen plaintiffs, hailing from Mississippi, Louisiana, Texas, and Indiana, and 122 defendants. An amended complaint was filed on June 16, 2000, which added three more plaintiffs from Mississippi and 182 plaintiffs from Alabama.
¶ 3. The record is devoid of further pleadings until September 30, 2004, when defendant 3M Company filed a motion to dismiss predicated upon our order in Harold's Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004). The motion alleged that "[s]ince the Complaint was filed . . . [the] Plaintiffs have provided no information to make it possible to determine what claims each of them asserts against which Defendants." Other defendants later filed a motion to dismiss predicated upon the Mangialardi order and argued that the order was applicable to asbestos cases. Alexander responded that Mangialardi should not be applied retroactively and that property rights and access to the courts under the Mississippi Constitution of 1890 were at risk; they also raised due process and equal protection concerns.
¶ 4. After a lengthy hearing on October 15, 2004, the trial court entered an order on December 23, 2004, after considering the merits of the briefs and arguments of the parties. The order required the parties to attend another hearing set for January 24, 2005, by which time the plaintiffs would be required to "inform the Court of any Plaintiffs residing outside out of the State of Mississippi who have original jurisdiction[al] within the State of Mississippi OR why, otherwise, each individual Plaintiff's case should not be dismissed."
¶ 5. The trial court additionally directed the severance and transfer of "all those in-state Plaintiffs without original jurisdiction and venue in Jefferson County, Mississippi, to the appropriate court of venue and jurisdiction, and dismiss, without prejudice, all those out-of-state Plaintiffs without original jurisdiction and venue in Jefferson County, Mississippi." The trial court also required Alexander to produce Mangialardi-compliant information in database form as to each plaintiff; specifically, their name, county and state of residence, county and state of alleged exposure, county of residence of a Mississippi defendant (if relevant), and whether the plaintiff should be dismissed for lack of jurisdiction and venue or where the case should be transferred.
¶ 6. Over the next weeks, the plaintiffs began to produce the information required by the order, which in many cases demonstrated that the plaintiffs had no connection with the state of Mississippi; for instance, one plaintiff was a resident of Indiana who claimed to have been exposed to asbestos in Indiana. Alexander urged that venue in a Mississippi jurisdiction was still proper because the asbestos may have been manufactured or otherwise distributed by a Mississippi defendant; in addition, a conspiracy theory was offered that attempted to tie the various defendants together and establish venue in Mississippi.
¶ 7. On February 11, 2005, the trial court entered an agreed order that was signed by counsel for the plaintiffs and the "Liaison Attorney for Defendants." The agreed order required further detail from Alexander in order to properly comply with Mangialardi and other "recent decisions of the Mississippi Supreme Court." Important for purposes of this appeal is the requirement that "[f]or all Plaintiffs who are not residents of the State of Mississippi and whose cause of action did not occur or accrue in Mississippi, i.e. their alleged exposure to asbestos did not take place in the State of Mississippi, a notation of `Dismissal Without Prejudice'" was to be placed by their name in the database.
¶ 8. The trial court also required Alexander to file an amended complaint, but "determined that issues relating to venue and dismissal should be addressed prior to the filing of any amended complaint complying with Mangialardi." However, the trial court did not prohibit Alexander from filing an amended complaint prior to transfer.
¶ 9. The plaintiffs responded to this order on March 10, 2005. Despite the fact that the order was agreed to and signed by the parties, Alexander specifically noted their objections to its content. The only reason given for maintaining venue in Jefferson County was that "[t]he Plaintiffs were properly joined under Mississippi law" at the time of filing.
¶ 10. On April 29, 2005, the trial court entered a subsequent order which held that "[t]he claims of the plaintiffs in this action who are not residents of the State of Mississippi and who do not allege exposure to asbestos in the State of Mississippi . . . are hereby dismissed without prejudice pursuant to the recent decision of the Mississippi Supreme Court." The court found that the lawsuits of 159 of the plaintiffs in the original suit should be dismissed without prejudice. Alexander appeals, assigning four errors to the dismissal without prejudice.
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 TO 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
¶ 11. 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.
¶ 12. In cases regarding joinder and venue, including cases where the severance of plaintiffs is at issue, we review to determine if the trial court abused discretion in its rulings. Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1095 (Miss.2004).
I. WHETHER THE CIRCUIT COURT IMPROPERLY APPLIED MISS. R. CIV. P. 20 RETROACTIVELY RESULTING IN SEVERANCE AND DISMISSAL OF THE PLAINTIFFS' CLAIMS
¶ 13. Alexander argues that this case was properly filed in 2000, and that the amendments to Rule 20 and its comment in 2004 should not be applied retroactively as to affect their case. Alexander also argues that the application of the post-2004 line of cases dealing with venue and joinder, including Armond, the various other Janssen Pharmaceutica cases, and the Mangialardi order should not be applied retroactively.
¶ 14. However, this is clearly not a forum non conveniens case. Rather, it is simply a Rule 20 joinder issue, which we have already fully addressed in Albert v. Allied Glove Corp., 944 So.2d 1 (Miss. 2006). In Albert, this Court mandated that the changes in Rule 20 must be applied to pending cases. Id. at 4. We made expressly clear that we 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. Furthermore, this Court has consistently held that the trial judge did not err in dismissing without prejudice the claims of out-of-state plaintiffs whose causes of action accrued outside of Mississippi. See Albert, 944 So.2d at 5; Amchem Prods., Inc. v. Rogers, 912 So.2d 853, 855 (Miss.2005); Dillard's, Inc. v. Scott, 908 So.2d 93, 96 (Miss. 2005). Therefore, we find the trial court's ruling to dismiss 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
¶ 15. Alexander and the other 158 appellants argue that the trial court failed to ensure that an alternate forum suitable for their claims existed when ordering their case dismissed without prejudice. According to Alexander, the danger is that while the cases were pending in Mississippi, the statute of limitations may have run in a valid alternate jurisdiction. To cure this possible problem, Alexander requested the trial court to require the defendants to waive the statute of limitations for the time period the cases were on file in Mississippi.
¶ 16. The trial court refused to include such a...
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