St. Louis City courts have long been considered among the most pro-plaintiff in the country and for years litigation tourists flocked there using multi-plaintiff complaints with a single city resident to secure the venue. Then the world changed in 2019. The Missouri Supreme Court decided State ex rel. Johnson & Johnson v. Burlison, 567 S.W.3d 168 (Mo. 2019) and later that year the legislature codified the ruling. Not only was Missouri’s permissive joinder statute changed to prohibit altogether the joinder of multiple plaintiffs simply because they were suing over the same product, but Mo. Stat. §508.010 was amended to establish that in “tort” cases, the venue as to the “individual plaintiff” for an action against a foreign corporation shall be:
in any county where a defendant corporation’s registered agent is located or, if the plaintiff’s principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county of the plaintiff’s principal place of residence on the date the plaintiff was first injured[.]
And just recently the Missouri Supreme Court had the chance to put these changes into action in State ex rel. Monsanto Company v. Mullen, — S.W.3d –, 2023 WL 5229516 (Mo. Aug. 15, 2023). Plaintiffs were six non-Missouri residents who had filed lawsuits in St. Louis City. Some were on multi-plaintiff complaints filed pre-2019 and some were more recently filed single-plaintiff claimants. Id. at *1. Defendant moved to transfer venue to St. Louis County in five of the six cases. That motion was denied. The six plaintiffs moved to consolidate their claims and schedule a joint trial. That motion was granted. Defendant moved for reconsideration of the consolidation order and reiterated its improper venue arguments. That motion also was denied, and the case was set to begin trial in January 2023. Defendant filed a writ of mandamus or prohibition to the Missouri Supreme Court.
The question before the Missouri Supreme Court was “whether venue is determined based on a defendant corporation’s registered agent’s location at the time the suit is filed or based on the agent’s location on the date of a plaintiff’s first alleged injury.” Id. at *2. That was a significant issue because defendant had relocated its registered agent from St. Louis City to St. Louis County between the time of alleged first injury and the time the complaints were filed.
The applicable statutory provision is the one cited above and as the Missouri Supreme Court noted, tense is important. The statute uses the present tense to describe the relevant location of the corporation’s registered agent – is not was. The use of both the present and past tense in the same statutory subdivision, “is a significant indicator in statutory construction,” and confirms that use of the present tense when discussing registered agents “was not accidental.” Id. at *3.
The court’s interpretation is also consistent with the purpose of the registered agent, to receive service of process. Id. So, the county where the defendant chooses to site its agent for service of process at the time of suit controls venue when the plaintiff is an out-of-state resident. As provided in §508.010(5)(1), the result is different when if the plaintiff is a Missouri resident. Then, venue is where plaintiff resided (past tense) at the time of first injury.
Plaintiffs argued that the court need to read §508.010(5)(1) in conjunction with Mo. Stat. §508.010(9) which provides that: “In all actions, venue shall be determined as of the date the plaintiff was first injured.” That language is used in multiple sections of §508.010, but only in reference to determining venue based on plaintiff’s principal place of residence. The legislature conspicuously omitted that language from the section dealing with venue based on a corporation’s registered agent which applies to out-of-state plaintiffs. The language of §508.010(5)(1) also applies “[n]otwithstanding any other provision of law.”
Therefore, because defendant’s registered agent at time the suits were filed was in St. Louis County, the Missouri Supreme Court found the circuit court exceeded is authority by refusing to transfer venue as defendant requested.
However, the Missouri Supreme Court did make a few other noteworthy procedural holdings/comments. First, waiver will be enforced if the venue issue is not timely raised in the first instance. The court was not willing to mandate transfer for the sixth plaintiff because defendant did not challenge venue within the 60 days allotted by Rule 51.045(a). Defendant argued that their prior motion to transfer, filed two years earlier, applied to this sixth case when that case was subsequently consolidated with the others. The court did not find the argument persuasive. Id. at *4.
Second, the “filing of a writ petition on the eve of trial may be grounds for this Court in future [mandamus] cases to exercise its discretionary authority not to issue the writ.” Seven months elapsed between the circuit court’s denial of the motion to reconsider and defendant’s seeking the writ. The takeaway– timeliness of challenging venue, both in the trial court and on appeal, is recommended.