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Missouri Law Blog Legal updates, news, and commentary from the attorneys of Baker Sterchi Cowden & Rice LLC

Rule 55.27(a) Means What It Says: Summary Judgment Rules Apply to Motions to Dismiss That Rely on Matters Outside of the Pleadings

March 14, 2017 | Martha Charepoo

In Schnurbusch v. West Plains Regional Animal Shelter et al., after a trial court had dismissed a case for failure to state a claim, the Court of Appeals reversed and remanded the case, because the trial court dismissed the case based on evidence outside of the pleadings without having before it a fully developed summary judgment-type record.

Schnurbusch initially arose from claims by a landscaping company and its owners against a city for failing to enforce its zoning laws against an animal shelter and the resulting alleged nuisance. The dispute with the city involved a protracted court battle spanning several years, a jury trial, and an appeal, and the filing of a separate lawsuit against the animal shelter. The parties filed many motions and cross-motions, including a motion to dismiss by the animal shelter which attached three exhibits. The trial court granted the motion and dismissed the petition, relying on the exhibits attached to the motion.

The plaintiffs appealed the trial court’s decision to dismiss their petition arguing that Rule 55.27(a) required that it treat the animal shelter’s motion like a summary judgment motion under Rule 74.04. The Court of Appeals agreed in clear and forceful terms, relying on well-established precedent that once a trial court considers materials outside of the pleadings in ruling on a motion to dismiss, it automatically gets converted into a motion for summary judgment.  Thus, the trial court erred by failing to compel the parties to comply with the procedural requirements of Rule 74.04. The Court of Appeals also reiterated that the procedural requirements of Rule 74.04 are strict and must be followed, which was not done in this case. Here, there was no statement of uncontroverted material facts or legal memorandum explaining why summary judgment should be granted. Indeed, the Court of Appeals found no evidence that the trial court gave the plaintiffs a chance to present additional materials facts to controvert the exhibits presented by the animal shelter. Thus, the Court found there was no Rule 74.04 record for its review, and sent the case back to the trial court for further proceedings under Rule 74.04.

The lesson of Schnurbusch is clear: the procedure of Rule 55.27(a) for handling a motion to dismiss that brings in matters outside of the pleadings is not discretionary with the trial court, and a trial court’s failure to require the parties to comply with the procedure of Rule 74.04 as stated in that rule will result in reversal.

Jury Panel Investigation in Missouri Revisited: Waiver of the Issue of Juror Non-Disclosure Remains Limited to the Litigation History

March 6, 2017 | James Seigfreid and Melesa Johnson

With the constant evolution of technology, the Missouri Constitution’s guarantee of the right to a fair and impartial jury of 12 has simultaneously become easier and more difficult to attain. As internet outlets and social media platforms rapidly multiply, prospective jurors have more opportunities to express or “post” beliefs and reveal biases on topics involved in litigation. In the best case scenario, this provides a litigant ample opportunity to corroborate or dispute the information provided by a prospective juror during voir dire. On the other hand, it has become increasingly difficult to uncover all of a prospective juror’s internet persona to discover whether a juror may, or may not, be impartial in a particular case.

As outlined in a blog post published in 2013, Missouri was one of the first states to obligate a litigant to investigate the backgrounds of potential jurors. In 2010, the Supreme Court of Missouri, in Johnson v. McCullough, affirmed a lower court’s grant of a new trial when plaintiff’s counsel, through research after trial, discovered that a juror failed to disclose their prior “litigation history.” Although the Supreme Court agreed that a new trial was appropriate, it also put litigants on notice that they should not expect to succeed on such motions in future if they wait until after a verdict is returned to perform juror research.

In 2011, the Missouri Supreme Court approved Rule 69.025 which codified the duty of litigants to research prospective jury members. Notably, it cautioned litigants that “a party waives the right to seek relief based on juror nondisclosure if the party fails to do either of the following before the jury is sworn: (1) Conduct a reasonable investigation; or (2) if the party has reasonable grounds to believe a prospective juror has failed to disclose that he or she has been a party to litigation, inform the court of the basis for the reasonable grounds. Mo. R. Civ. P. 69.025(e). For the purposes of the rule, “reasonable investigation” constitutes a search of Case.net, at minimum. Mo. R. Civ. P. 69.025(b).

The Southern District Court of Appeals recently addressed this rule in Spence v. BNSF Ry. Co. Despite the exponential growth of technology and online outlets in the past four years, the Court held the applicability of Rule 69.025 was limited to the subject of a venireperson’s “litigation history.” Spence involved a fatal car accident in which a BNSF train struck the decedent’s truck. Before the panel of potential jurors were seated, the parties conducted pretrial Case.net searches based on a list tendered by the Court. However, around the time the panelists were seated for voir dire, it was discovered that Juror Cornell’s last name was misspelled (“Carnell”). The parties did not conduct another Case.net search using Juror Cornell’s correctly spelled name before questioning.

As voir dire unfolded, BNSF’s counsel asked potential jurors whether or not they, or a close family member, had been involved in a motor vehicle accident. Counsel did not, however, question the panel about their “litigation history” involving motor vehicle accidents. Juror Cornell, whose son died in an auto accident, remained silent and said nothing in response to BNSF counsel’s question seeking information about those involved in motor vehicle accidents. Juror Cornell ultimately made the jury and assisted in awarding $19 million dollars to the decedent’s wife.

BNSF appealed the trial court’s rejection of their juror non-disclosure claim regarding Juror Cornell’s failure to truthfully answer the questions regarding her family’s history with automobile accidents. In response, plaintiff argued that another Case.net search using Juror Cornell’s correctly spelled name would have revealed the juror’s lawsuit for her son’s death and that Mo. R. Civ. P. 69.025 should operate to cause waiver of the complaint that the juror failed to disclose pertinent information.

The appellate court held that Mo.R.Civ.P. 69.025 pertained exclusively to juror non-disclosure of “litigation history.” In this case, Juror Cornell failed to advise the litigants that her son had died in an auto accident, not whether or not she had been involved in litigation relating to an accident. As a result, the majority was compelled to find that Mo.R.Civ.P. 69.025 could not be invoked to cause BNSF’s waiver of the right to complain about the disclosure. The Court ordered a new trial as a result.

In a well-reasoned dissent, Judge Rahmeyer argued that Rule 69.025 was much broader in its application than as narrowly construed by the majority. The judge believed that the claim by BNSF counsel relating to juror non-disclosure was “exactly the type of claim that Rule 69.025 was enacted to curtail, i.e. an after-trial complaint of juror non-disclosure of a matter that would have been discovered had defendant used due diligence by searching Case.net.” Plaintiff has asked the Missouri Supreme Court to review the case; the Court has not yet decided whether to do so.

Reports of the Death of Litigation Tourism in Missouri Have Been Greatly Exaggerated

March 1, 2017 | Angela HigginsOn February 28, 2017, the Missouri Supreme Court issued its opinion in State ex rel. Norfolk Southern Railway Company v. Dolan (a/k/a “Parker,” for the plaintiff), Case No. SC95514, a proceeding for a writ of prohibition to prevent a trial court in St. Louis County, Missouri from exercising jurisdiction over a FELA personal injury case brought by an Indiana-resident plaintiff against his Virginia-resident employer for an injury sustained in Indiana.  The Supreme Court’s recognition that there is no basis beyond forum shopping for this case to survive in Missouri is laudable.

However, reports that hail this decision as the death-knell to “litigation tourism” are likely premature.  Parker does good things to curtail litigation tourism.  Among these are rejection of the notion that out-of-state defendants consent to personal jurisdiction by maintaining a registered agent in Missouri, and adoption of the Daimler and Goodyear cases regarding general jurisdiction.

The rejection of the doctrine of consent jurisdiction is a significant and much-needed development.  Missouri courts have long improperly conflated the ability to serve a defendant with obtaining personal jurisdiction over the defendant.  Although Parker cites only out-of-state cases for this proposition, as a practical matter Missouri practitioners have found that designation of a registered agent for service in Missouri has been universally viewed by the state’s trial courts as consent to personal jurisdiction.  The Missouri Supreme Court’s only prior opinion involving this issue ultimately declined to decide whether service upon an in-state registered agent was sufficient to confer personal jurisdiction over a non-resident defendant.  See State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 167-68 (Mo. banc 1999).  However, Holliger was frequently cited for the proposition that a registered agent, plus “sufficient” contacts with the state, was sufficient to confer personal jurisdiction.  Id. at 168-69.

The lack of guidance afforded by Holliger has opened the door to some of the “litigation tourism” problem, allowing trial courts to rule that an out-of-state defendant has consented to personal jurisdiction by appointing a registered agent to accept service and registering to do business within the state.  See, e.g., Order dated Sept. 6, 2016, Kologenski v. The Adel Wiggins Group, et al., Case No. 1622-CC00427 (22nd Judicial Circ., City of St. Louis, Div. 29);  Gracey v. Janssen Pharmaceuticals, Inc., Case No. 4:15-CV-407 (CEJ), 2015 U.S. Dist. LEXIS 57990, 2015 WL 2066242 (E.D. Mo. May 4, 2015).  In Kologenski, a City of St. Louis trial court found that it was unnecessary to perform a “minimum contacts” constitutional due process analysis where the defendant maintains a registered agent in the state, because it has consented to personal jurisdiction.  Order at 3.

Parker holds that registration statutes, including designation of a registered agent for service, does not alone equal consent to personal jurisdiction over non-resident defendant companies.  “[T]he registration statute does not provide an independent basis for broadening Missouri’s personal jurisdiction to include suits unrelated to the corporation’s forum activities when the usual bases for general jurisdiction are not present.”  Slip. Op. at 18.

The explicit adoption of federal precedent regarding general jurisdiction, including Daimler and Goodyear, is also good, particularly the acknowledgement that these cases change Missouri law.  The attempt to quantify how much contact a defendant must have with a forum before that contact is “systematic and continuous,” however, is likely a mixed blessing for defendants. 

While Norfolk Southern can account for only approximately 2% of its track and employees within the state of Missouri, the mathematical formula approach in Parker will likely prove more frustrating for defendants whose Missouri contacts comprise a more significant portion of their overall business.  We can foresee considerable post-Parker litigation over the location of the mathematical threshold for “continuous and systematic” contacts, which is not consistent with the intent of Daimler and Goodyear.  Is the threshold crossed when a defendant’s Missouri contacts constitute a double-digit percentage of its overall business?  Is it greater than 50%?  Parker introduces what will likely prove to be an unwieldy math problem with little practical guidance as to where the line is drawn.  By contrast, Daimler and Goodyear signaled that the very notion of general jurisdiction was of such dubious and exceptionally limited application that it would virtually never apply, and this essential premise was not well-adopted in Parker.

Furthermore, Parker does not address the multi-plaintiff problem that is at the core of litigation tourism in Missouri.  In the “mini MDLs” proliferating in the state, particularly in the context of pharmaceutical, medical device, and asbestos cases, usually at least one plaintiff can establish personal jurisdiction over the defendants.  Typically, a Missouri resident who sustained injury in Missouri is included, and who could establish jurisdiction under the long-arm statute for commission of a tort in the state or conducting business in the state.

The problem is allowing other non-resident plaintiffs to bootstrap their unrelated claims.  Parker helps when there is a single forum-shopping plaintiff, but does not clearly address the problem of “pendent” or “supplemental” personal jurisdiction.  The argument that numerous unrelated out-of-state plaintiffs may be joined under Missouri’s Rule 52.05 with one plaintiff who properly asserts personal jurisdiction is a type of “pendent” or “supplemental” theory of specific personal jurisdiction.  See, e.g., Liggins v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.), 164 F. Supp. 3d 1040, 1048 (N.D. Ill. 2016). 

Federal courts have plainly held that “[t]here is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.”  Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 n.6 (5th Cir. 2006).  “Permitting the legitimate exercise of specific jurisdiction over one claim to justify the exercise of specific jurisdiction over a different claim that does not arise out of or relate to the defendant’s forum contacts [] violate[s] the Due Process Clause.”  Id. 

This is the crux of the problem with “litigation tourism” in Missouri.  Because Parker is a single plaintiff case, the pernicious misapplication of the law evidenced by the “supplemental personal jurisdiction” fallacy remains untested in Missouri.  While it appears likely that the Missouri Supreme Court would be receptive to ruling that the theory is not viable, it has not done so in Parker.  Multi-plaintiff litigation tourism likely lives to fight another day.
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The BSCR Missouri Law Blog examines significant developments, trends and changes in Missouri law on a broad range of topics of interest to Missouri practitioners and attorneys and businesses with disputes subject to Missouri law. Learn more about the editor, David Eisenberg.

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