State ex rel. Miracle Recreation Equipment Co. v. O'Malley

PER CURIAM. A motor vehicle accident occurred in Linn County, Missouri. The current lawsuit was filed in Jackson County by a Missouri resident, naming only Roberts as a defendant. Roberts, who was operating one of the vehicles for Miracle, is an Iowa resident. Miracle is an Iowa corporation whose principal place of business is in Monett, Missouri. In this posture, Jackson County was a county of proper venue. Roberts removed the suit to federal court. While in that court, Miracle was added as an additional defendant. This addition caused the federal court’s diversity jurisdiction to be lost. The case was remanded to Jackson County. After the case was remanded, Miracle and Roberts sought a change of venue. They asserted that the addition of Miracle resulted in Jackson County no longer being a county of proper venue. The circuit court overruled the motion for change of venue on its merits. Miracle and Roberts petition this Court for a writ of prohibition or mandamus, alleging that Jackson County is no longer a county of proper venue. At the time the trial court ruled on the motion for transfer, it did not have the benefit of this Court’s opinion in State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo. banc 2001). Linthicum holds that for purposes of section 508.010, a suit instituted by summons is “brought” whenever a plaintiff brings a defendant into a lawsuit, whether by original petition or by amended petition. In determining state court venue, a suit is “brought” against a defendant joined in federal court at the time of remand. See Rule 55.8Jp(a) (“[T]he date of the remand order is deemed the date of service for determining when a pleading shall be filed or an action taken.”). [408] A peremptory writ of mandamus is ordered to issue directing the trial court to determine venue in accord with Linthi-cum. LIMBAUGH, C.J., HOLSTEIN, WOLFF, BENTON, STITH and PRICE, JJ., concur; WHITE, J., dissents in separate opinion filed.