Opinion
Cause No. 4:05CV00802HEA.
July 10, 2006
MEMORANDUM IN OPPOSITION TO NORTH AMERICAN VAN LINES' MOTION TO REMAND TO FRANKLIN COUNTY CIRCUIT COURT
COMES NOW, third party defendant, Sharon Coggins ("Coggins"), by and through her below signed counsel of record, and for her Memorandum in Opposition to North American Van Lines' (NAVL) Motion to Remand to Franklin County Circuit Court, pursuant to the Federal Rules of Civil Procedure and law, states:
INTRODUCTION
Third party defendant Sharon Coggins does not dispute that all claims and controversies between plaintiff, Diane Hansel and North American Van Lines and all claims and controversies of NAVL against third party defendant Sharon Coggins have been resolved inasmuch as they are now barred by the good faith settlement contribution by Coggins to plaintiff Hansel. Coggins also agrees with NAVL that the sole issue left for resolution is her third party counter claim against NAVL. Coggins further agrees that this matter should now be remanded to state court for resolution of the sole remaining issue in this matter, that being Coggins' counter claim against NAVL. The only point of disagreement between Coggins and NAVL is the fact that this matter should be remanded to the St. Louis City Circuit Court, and not to the Franklin County Circuit Court.
LEGAL ARGUMENT
This matter should properly be remanded back to the state court circuit where it was originally filed and from where it was removed. Initially, plaintiff's case was filed on April 14, 2005 in the St. Louis City Circuit Court alleging:
Defendant North American Van Lines, Inc. is a Delaware Corporation, and is an interstate motor carrier, doing business pursuant and subject to the United States Statutes and Regulations governing interstate motor carriers. Further, defendant does business in the State of Missouri and operates its motor vehicles within the City of St. Louis.
(Exhibit A, ¶ 1, original Petition filed in the St. Louis City Circuit Court, April 14, 2005).
NAVL then filed its Application for Removal to the Federal District Court for the Eastern District of Missouri, alleging diversity jurisdiction in the federal court. NAVL filed no other pleadings in the state court. NAVL then proceeded to file its third party claim against third party defendant Sharon Coggins. All claims between plaintiff Hansel and NAVL are now settled and all claims of NAVL against Coggins are likewise resolved by virtue of the Missouri Settlement Statute (Section 537.060 R.S.Mo.). Therefore the only remaining claim in this matter is Coggins' claim against NAVL for personal injuries, which all parties agree is a claim for less than $75,000.
§ 537.060 R.S.Mo. provides, in pertinent part: When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however, such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontractual indemnity to any other tort-feasor.
Consequently, all parties agree that this matter should be remanded to state court for disposition of the remaining claim. This matter should be remanded back to the St. Louis City Circuit Court where it commenced because: 1) Venue is proper in the St. Louis City Circuit Court and 2) even if venue was not proper in the St. Louis City Circuit Court, NAVL has waived any issue of venue by not timely moving to transfer venue and/or to dismiss when the matter was originally commenced in the St. Louis City Circuit Court.
I. Venue is proper in St. Louis City Circuit Court
Proper venue for the remaining claim of Coggins against NAVL in this matter is a question of procedural law and therefore is clearly a question of Missouri State law. Section 508.070 R.S.Mo. provides:
Section 508.070 was repealed in 2005 by L. 2005 H.B. 393, passed by the Missouri Legislature in 2005. However, by the express terms of the legislation, the changes in Missouri law effected by the act does not apply to any matter filed prior to or on August 28, 2005 (See Exhibit E attached, H.B. 393, Section 2).
1. Suit may be brought against any motor carrier which is subject to regulation pursuant to chapter 390, R.S.Mo., in any county where the cause of action may arise, in any town or county where the motor carrier operates, or judicial circuit where the cause of action accrued, or where the defendant maintains an office or agent, . . .
Furthermore, Section 390.020 provides:
As used in this chapter, unless the context clearly requires otherwise, the words and terms mean:
* * *
(18) "Motor carrier", any person engaged in the transportation of property or passengers, or both, for compensation or hire, over the public roads of this state by motor vehicle. The term includes both common and contract carriers . . .
The Missouri courts have clearly applied the above provisions to conclude that where a motor carrier (trucking company) operates its trucks in or through the City of St. Louis, venue in suit against the trucking company is proper in the City of St. Louis. See, Normandy Osteopathic Hosp. V. Gaertner, 663 S.W.2d 783, 785 (Mo.App.E.D. 1984) (holding "This case closely parallels Sledge. Clearly the trial court was vested with proper venue over trucking companies operating in the City of St. Louis under § 508.070.")
NAVL is a nationwide motor carrier/trucking service that operates in the City of St. Louis as well as in most other major cities in the 48 contiguous United States. (Exhibit B, Deposition of NAVL truck driver Thomas Hokett taken May 10, 2006, p. 16, line 5, to p. 17, line 6; p. 20, line 3 to p. 21, line 5) On the day of the accident in question, the NAVL truck at issue was traveling northbound on Interstate 44 from Oklahoma to St. Louis. After the accident in question, the NAVL truck proceeded to St. Louis City where the damages from the accident to the truck were repaired. (Exhibit B, p. 35, lines 6 to 15.)
Consequently, since NAVL is clearly a motor carrier that operates in the City of St. Louis and venue is therefore proper in the St. Louis City Circuit Court.
Moreover, any contention by NAVL that in some way venue is not proper in the City of St. Louis is suspect in light of the fact that Hansel v. NAVL was not the first, but was the second lawsuit defended by NAVL arising out of the exact same accident as in this matter.
In the accident in question giving rise to plaintiff Diane Hansel's claims in this matter, plaintiff's parents, Richard and Hilda Hansel, were also injured. They filed suit separately in the St. Louis City Circuit Court, Cause No.: 032-00389. That matter was filed on February 7, 2003 and was defended by NAVL in the City of St. Louis through to settlement and dismissal on or about February 9, 2005. (Exhibit C, Case Minutes of St. Louis City Circuit Cause No.: 032-00389) At no time did NAVL ever raise the allegation that venue was improper. Accordingly in this matter, with exactly the same issues and same basis for St. Louis City venue, it is highly suspect that NAVL would now argue St. Louis City venue is not proper.
II. Even if venue was not originally proper in St. Louis City Circuit Court, venue was waived by NAVL by not objecting when the case was filed.
Plaintiff filed her original Petition in the St. Louis City Circuit Court alleging venue in that circuit by virtue of the facts and law set out above. NAVL filed no Motion to Transfer or to Dismiss, nor any other pleading raising the defense of improper venue. (Exhibit D, Case Minutes of St. Louis City Circuit Cause No.: 052-01319).
Missouri law is quite clear that the issue of venue is a matter of personal privilege, which may be waived, as well as to the necessity of objection to improper venue at the earliest possible time. See, Davis v. Kempker, 167 S.w.3rd 721, 727 (Mo.App.W.D. 2005) holding:
Under Missouri law, venue is "a mere personal privilege which may be waived by the party entitled to assert it." Bellon Wrecking Salvage Co. v. David Orf, Inc., 983 S.W. 2d 541, 547 (Mo.App. E.D. 1998) (quoting Osage Homestead Inc. v. City of New Florence, 713 S.W.2d 51, 52 (Mo.App.E.D. 1986). Moreover, venue must be challenged at the earliest opportunity, and "[a]ny action related to the merits of the cause will waive objection to venue unless a prior challenge has been filed." State ex rel. Uptergrove v. Russell, 871 S.W.2d 27, 29 (Mo.App.W.D. 1993).
By opting to file its Petition for Removal and Answer in lieu of any Motion to Transfer or Dismiss, NAVL waived any venue objection it may have had in this matter.
CONCLUSION
Based on the above, it is clear that this matter should now be remanded by the Federal District Court to the St. Louis City Circuit Court, Twenty-Second Judicial Circuit, State of Missouri. This conclusion is clearly required in light of the fact that this matter arose as a claim filed prior to August 28, 2005 and which alleged proper venue against a defendant motor carrier, which clearly operated in and through the City of St. Louis.
Furthermore, to the extent that any contrary argument may be raised as to venue in this matter by NAVL, such argument has been waived by NAVL's failure to timely raise and preserve such an argument at the earliest possible time before the City of St. Louis Circuit Court.
WHEREFORE, third party defendant, Coggins, respectfully prays this honorable Court enter its Order partially granting NAVL's Motion to Remand and partially denying NAVL's Motion to Remand in the following respects:
a) Entering its Judgment and Order finding that all claims as between plaintiff Diane Hansel and defendant/third party plaintiff North American Van Lines and as between plaintiff Diane Hansel and third party defendant Sharon Coggins are resolved and that all claims of North American Van Lines against Sharon Coggins are resolved and that the only claim singular claim remaining in this matter is Sharon Coggins' claim singular claim against North American Van Lines for personal injury; and,
b) Ordering that the remaining claims of Sharon Coggins against North American Van Lines be remanded to the St. Louis City Circuit Court, Twenty-Second Judicial Circuit, State of Missouri for disposition; and,
c) For any such other and further relief this Court deems just and equitable under the circumstances.