State ex rel. Schwarz Pharma, Inc. v. Dowd
| Decision Date | 10 June 2014 |
| Docket Number | SC93521,SC93524.,SC93522,Nos. SC93516,SC93520,SC93523,SC93517,s. SC93516 |
| Citation | 432 S.W.3d 764 |
| Court | Missouri Supreme Court |
| Parties | STATE ex rel. SCHWARZ PHARMA, INC., n/k/a UCB, Inc., Relator, v. The Honorable David L. DOWD, Respondent. State ex rel. Schwarz Pharma, Inc., n/k/a UCB, Inc., Relator, v. The Honorable David L. Dowd, Respondent. State ex rel. Schwarz Pharma, Inc., n/k/a UCB, Inc., Relator, v. The Honorable David L. Dowd, Respondent. State ex rel. Schwarz Pharma, Inc., n/k/a UCB, Inc., Relator, v. The Honorable David L. Dowd, Respondent. State ex rel. Schwarz Pharma, Inc., n/k/a UCB, Inc., Relator, v. The Honorable David L. Dowd, Respondent. State ex rel. Schwarz Pharma, Inc., n/k/a UCB, Inc., and Mutual Pharmaceutical Company, Inc., Relators, v. The Honorable David L. Dowd, Respondent. State ex rel. Schwarz Pharma, Inc., n/k/a UCB, Inc., Relator, v. The Honorable David L. Dowd, Respondent. |
OPINION TEXT STARTS HERE
Henninger S. Bullock, Andrew J. Calica, Mayer Brown LLP, New York, Gerard T. Noce, Larry E. Hepler, Beth A. Bauer, HeplerBroom LLC, St. Louis, for Schwarz.
Jeffrey J. Lowe, Jacob A. Flint, Carey, Danis & Lowe, St. Louis, for plaintiffs.
In these seven proceedings, Schwarz Pharma, Inc. petitions this Court to issue its writs prohibiting the trial court from taking any action other than granting its motions to transfer venue of those actions from St. Louis city to St. Louis County. The motions assert that venue is not proper in St. Louis city and is proper in St. Louis County. Plaintiffs 1 do not contest the substantive claims made about the propriety of venue but rather argue that the motions to transfer venue were untimely because they were filed more than 60 days after the defendants were served.
This Court makes permanent its preliminary writs of prohibition. While the plaintiffs served the other defendants shortly after their original joint lawsuit was filed on February 22, 2012, the plaintiffs all failed to effect service of that or their amended petitions on defendant Schwarz until October 2, 2012. In the interim, the trial court had severed the various plaintiffs' actions, and Schwarz was not served with the petitions in the individual severed actions until October 4, 2012. Schwarz filed its motions to transfer venue in these seven individual actions on November 15, 2012, well within the 60–day period after service of any of the petitions in which motions to transfer venue must be filed. The trial court therefore erred in ruling that Schwarz's motions were untimely. Accordingly, the trial court lacked the authority to take any action other than to sustain Schwarz's motions to transfer venue.
On February 22, 2012, 90 plaintiffs filed a products liability action in the St. Louis city circuit court against 27 defendants, including Schwarz, in a petition styled Anderson v. Wyeth LLC, No. 1222–CC00910 (“ Anderson petition”). The plaintiffs twice amended the Anderson petition to include six additional plaintiffs. While it is not contested that the other defendants were timely served, the plaintiffs failed to serve Schwarz with the original or either amended petition.
In June 2012, the defendants moved to sever the other plaintiffs' suits from the Anderson suit. On August 8, 2012, the trial court agreed that the 96 plaintiffs were misjoined under Rule 52.05. It issued an order severing the 95 plaintiffs other than the named plaintiff, Ms. Anderson. It gave each of these 95 plaintiffs 90 days to file individual petitions and directed that if they did so within that time period, they “need not serve new process” because the defendants would be the same in the newly filed individual suits and the order of severance constituted adequate notice of the filing of the new actions.
Schwarz had not been served with the Anderson suit by the time that severance of the individual actions was ordered in August 2012. Despite this order of severance, on October 2, 2012, Schwarz was served with the second amended petition in the Anderson action as if severance had not been ordered. The next day—October 3, 2012—the severed plaintiffs filed their individual petitions in the severed actions, and they timely served these petitions on Schwarz the following day, October 4, 2012. Because these writ proceedings involve only seven of these individual actions, the Court limits the remainder of its discussion to those seven actions.2 All seven plaintiffs in the actions involved in these writ proceedings are represented by the same counsel.
Rule 51.045 governs transfer of a suit when venue is improper. Rule 51.045(a) provides that a motion to transfer venue “shall be filed within 60 days of service on the party seeking transfer.” Schwarz and the other defendants filed their motions to transfer venue on November 15, 2012—42 days after Schwarz and the other defendants were served with the individual petitions in the severed actions and 44 days after Schwarz was first served with any petition in the former Anderson joint action.
The plaintiffs opposed the transfer of venue. Their written opposition did not contest the venue facts on which the motions to transfer venue were based but instead argued the 60–day time period for moving to transfer venue under Rule 51.045 already had run by the time defendants filed their motions on November 15, 2012. The defendants filed a reply arguing that they could file their motions up to 60 days after the plaintiffs filed their individual petitions on October 3, 2012.
The trial court held a hearing on the motions in January 2013. In addition to asserting the above arguments, Schwarz orally argued at the hearing that even if the other defendants' motions were untimely, Schwarz's own motions to transfer venue were timely because Schwarz did not become a party in any of the seven actions until either October 2, 2012, when it was served with the joint second amended Anderson petition, or October 4, 2012, when it was served with the petitions in the severed actions. In either event, service on Schwarz occurred fewer than 60 days prior to the date it filed its motions to transfer venue.
The trial court did not immediately rule, so, on April 3, 2013, Schwarz and the other Anderson defendants filed motions to enforce transfer under section 508.010.10, RSMo Supp.2013, which provides that motions “to transfer based upon a claim of improper venue shall be deemed granted if not denied within ninety days of filing of the motion.” On April 5, the trial court ruled that the motions were untimely under Rule 51.045(a) because they were not filed within 60 days of service of process of the Anderson petition. In so doing, the court did not address Schwarz's individual argument that, unlike the other defendants, it was not served with any petition until October 2012. The court also held that, to the extent section 508.010.10 could be read to require a court to grant a motion to transfer venue after 90 days without regard to whether the motion was timely or whether venue was improper in the initial jurisdiction and proper in the proposed jurisdiction, it was inconsistent with Rule 51.045 and could not be followed.3
Schwarz and the other defendants sought writs of prohibition in the court of appeals, which denied relief. They then sought writs of prohibition in this Court. This Court issued its preliminary writs of prohibition in these seven actions as to defendant Schwarz only on August 13, 2013, pursuant article V, section 4 of the Missouri Constitution. Those writs are now made permanent.
Prohibition is a discretionary writ that only issues to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extrajurisdictional power. State ex rel. McDonald's Corp. v. Midkiff, 226 S.W.3d 119, 122 (Mo. banc 2007). When a timely motion to transfer venue is filed showing that venue is improper, prohibition lies to bar the trial court from taking any further action except to transfer the case to a proper venue. Id.
In these original writ proceedings, Plaintiffs do not dispute that venue of the underlying seven actions is improper in St. Louis City, nor do they contest that venue of these actions is proper in St. Louis County. 4 It is uncontested that a newly joined defendant has the right to bring a timely motion to transfer venue even if the time for the other defendants to file a motion to transfer venue has expired. Rule 51.045; § 508.012, RSMo Supp.2013; see State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 858 (Mo. banc 2001) (new period for seeking transfer begins to run upon addition of a new defendant). The question is whether Schwarz's motions to transfer venue were timely.
The timing of motions to transfer venue is governed by Rule 51.045, which states in relevant part:
(a) Any motion to transfer venue alleging improper venue shall be filed within 60 days of service on the party seeking transfer. For good cause shown, the court may extend the time to file a motion to transfer venue or allow the party to amend it. Any motion to transfer venue shall:
(1) Specify one or more counties in which the movant contends venue is proper, and
(2) State the basis for venue in each such county.
If a motion to transfer venue is not timely filed, the issue of improper venue is waived.
If a timely motion to transfer venue is filed, the venue issue is not waived by any other action in the case.
(b) Within 30 days after the filing of a motion to transfer for improper venue, an opposing party may file a reply. For good cause shown, the court may extend the time to file the reply or allow the party to amend it.
The reply shall state the basis for venue in the forum or state reasons why venue is not proper in one or more counties specified by the movant. The court shall not consider any basis not stated in...
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