State ex rel. Schwarz Pharma, Inc. v. Dowd

432 S.W.3d 764, 2014 WL 2583385
CourtSupreme Court of Missouri
DecidedJune 10, 2014
DocketNos. SC93516, SC93517, SC93520, SC93521, SC93522, SC93523, SC93524
StatusPublished
Cited by13 cases

This text of 432 S.W.3d 764 (State ex rel. Schwarz Pharma, Inc. v. Dowd) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Schwarz Pharma, Inc. v. Dowd, 432 S.W.3d 764, 2014 WL 2583385 (Mo. 2014).

Opinion

ORIGINAL PROCEEDING IN PROHIBITION

LAURA DENVIR STITH, Judge.

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. Plaintiffs1 do not contest [766]*766the 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.

1. FACTUAL AND PROCEDURAL BACKGROUND

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 [767]*767transfer 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 8, 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.

[768]*768 II. STANDARD FOR ISSUANCE OF WRIT OF PROHIBITION

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.

III. TIMELINESS OF SCHWARZ’S MOTIONS TO TRANSFER VENUE

In these original writ proceedings, Plaintiffs do not dispute that venue of the underlying seven actions is improper in St.

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432 S.W.3d 764, 2014 WL 2583385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-schwarz-pharma-inc-v-dowd-mo-2014.