State ex rel. Green v. Neill
Decision Date | 24 February 2004 |
Docket Number | No. SC 85534.,SC 85534. |
Citation | 127 S.W.3d 677 |
Parties | STATE ex rel. James GREEN, M.D., T. Isakson, M.D., and Christina L. Litherland, M.D., Relators, v. The Honorable Margaret M. NEILL, Presiding Judge, Twenty-Second Judicial Circuit of Missouri, Respondent. |
Court | Missouri Supreme Court |
Michael A. Gross, Mark I. Bronson, St. Louis, for respondent.
Relators (defendants in a medical malpractice claim) seek a writ of prohibition barring Respondent from taking any further action other than transferring the underlying case to a proper venue. Relators argue that fellow defendant Malaika Horne, Ph.D., a member of the board of curators of the University of Missouri and resident of the City of St. Louis at the time the petition was filed, was joined pretensively so that plaintiffs could obtain venue in the Circuit Court of the City of St. Louis.
Plaintiffs failed to state a cause of action against Curator Horne. Therefore, the joinder of Curator Horne as a defendant was pretensive. The preliminary writ of prohibition is made absolute.
Melinda Houston gave birth to her son at University Hospital and Clinics in Columbia, Missouri (Boone County). Houston and her son are residents of Columbia. They later filed suit in the City of St. Louis (not in Boone County) alleging medical malpractice against physicians involved in the delivery. Plaintiffs also included as defendants the University of Missouri board of curators (doing business as University Hospital), and nine individual members of the board of curators. One of the members of the board, Curator Horne, was a resident of the City of St. Louis at the time the petition was filed. No other defendant was a resident of the City of St. Louis. Plaintiffs ultimately asserted that venue was proper in the City of St. Louis pursuant to section 508.010(3), RSMo 2000, which provides that when "there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides."
Defendants moved to transfer venue and argued that joinder of the curators was pretensive, noting that venue in the City of St. Louis rests solely on the inclusion of Curator Horne as a defendant and arguing that plaintiffs failed to state a claim against Curator Horne. The Circuit Court denied the motion, and three of the physician defendants seek a writ of prohibition from this Court barring the Circuit Court of the City of St. Louis from taking any further action other than transferring the underlying case to a proper venue.
A writ of prohibition State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002) (citations omitted).
Although plaintiffs may file suit in any statutorily permissible venue, courts will not permit plaintiffs to engage in the pretense of joining defendants for the sole purpose of obtaining venue. State ex rel. Malone v. Mummert, 889 S.W.2d 822, 824 (Mo. banc 1994). Under one test, joinder is pretensive if the petition on its face fails to state a claim against the joined defendant. Id.
Plaintiffs did not allege that Curator Horne participated in any aspect of the medical care. Instead, the claim against Curator Horne was based on the doctrine of respondeat superior. "Under respondeat superior, an employer is...
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