IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-00617-SCT
3M COMPANY f/k/a MINNESOTA MINING
AND MANUFACTURING COMPANY, ET AL.
v.
LETHA C. GLASS, ET AL.
DATE OF JUDGMENT: 03/17/2003
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: W. WAYNE DRINKWATER, JR.
MARGARET OERTLING CUPPLES
CHERI D. GREEN
JAMES ALTUS MCCULLOUGH
KACEY LEIGH KEETON
DAVID FRIEDERICH MARION
WALKER (BILL) JONES, III
CHARLES STEPHEN STACK, JR.
W. BRUCE WILLIAMS
KATRINA MAY HALL
THOMAS W. TYNER
GRAYSON RANDOLPH LEWIS
JAMES P. STREETMAN, III
CHARLES R. WILBANKS, JR.
CLYDE LAVEL NICHOLS, III
BLAYNE THOMAS INGRAM
WALTER C. MORRISON
PATRICK R. BUCHANAN
W. MARK EDWARDS
RONALD G. PERESICH
PATRICIA ANN DICKE
MEADE W. MITCHELL
PHIL B. ABERNETHY
ALBEN NORRIS HOPKINS
MARIANO JAVIER BARVIE’
VINCENT RICHARD ALMERICO
PAIGE CRAIG JONES
JOHN W. ROBINSON
KYLE STUART MORAN
EDWIN S. GAULT, JR.
BRANDY LENEE FAUGHT
ATTORNEYS FOR APPELLEES: STEPHEN W. MULLINS
ALWYN H. LUCKEY
HARVEY W. BARTON
SKIP EDWARD LYNCH
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 12/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2003-IA-00476-SCT
3M COMPANY f/k/a MINNESOTA MINING AND
MANUFACTURING COMPANY, ET AL.
v.
CHARLES H. GREEN, ET AL.
DATE OF JUDGMENT: 03/03/2003
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: W. WAYNE DRINKWATER, JR.
MARGARET OERTLING CUPPLES
CHERI D. GREEN
JAMES ALTUS MCCULLOUGH
KACEY LEIGH KEETON
DAVID FRIEDERICH MARION
WALKER (BILL) JONES, III
CHARLES STEPHEN STACK, JR.
W. BRUCE WILLIAMS
KATRINA MAY HALL
THOMAS W. TYNER
GRAYSON RANDOLPH LEWIS
JAMES P. STREETMAN, III
CHARLES R. WILBANKS, JR.
CLYDE LAVEL NICHOLS, III
BLAYNE THOMAS INGRAM
WALTER C. MORRISON
PATRICK R. BUCHANAN
W. MARK EDWARDS
RONALD G. PERESICH
PATRICIA ANN DICKE
MEADE W. MITCHELL
PHIL B. ABERNETHY
ALBEN NORRIS HOPKINS
MARIANO JAVIER BARVIE’
VINCENT RICHARD ALMERICO
PAIGE CRAIG JONES
JOHN W. ROBINSON
KYLE STUART MORAN
EDWIN S. GAULT, JR.
BRANDY LENEE FAUGHT
ATTORNEYS FOR APPELLEES: STEPHEN W. MULLINS
ALWYN H. LUCKEY
HARVEY W. BARTON
SKIP EDWARD LYNCH
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 12/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE, WALLER, P.J., CARLSON AND DICKINSON, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. This consolidated interlocutory appeal of two “mass-tort” cases1 requires us to again
address questions of joinder and the pleading requirements of rules 8, 9, 10 and 11, of the
Mississippi Rules of Civil Procedure. Although we previously addressed the issue concerning
inadequate pleading in Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493 (Miss.
2004), today we provide additional guidance and clarification.
1
3M Co. v. Glass, No. 2003-IA-00617-SCT, filed May 6, 2002 in Jefferson County Circuit
Court, and 3M Co. v. Green, No. 2003-IA-00476-SCT, filed June 6, 2002, in Claiborne County Circuit
Court.
3
¶2. Both the Glass and Green complaints contain general allegations of “silica-related”
injury from exposure to “silica-containing dust.” Although the plaintiffs and defendants are
identified in exhibits to the complaint, no particular plaintiff or defendant is identified
anywhere within the body of the complaint. The exhibits were amended numerous times before
settling upon 15 plaintiffs2 and 76 defendants in each case. 3M is one of the 76 defendants.
¶3. After the trial court’s denial of the motions for severance in March, 2003, 3M filed a
motion seeking interlocutory appeal3 which we granted. See M.R.A.P. 5.
ANALYSIS
¶4. The question presented is whether the trial court abused its discretion in denying 3M’s
motions to sever the plaintiffs’ claims. 3M submitted its well-reasoned brief on the issue, and
plaintiffs responded by telling us: “Plaintiffs hereby confess the issues contained in the
Appellants’ Brief concerning Rule 20 joinder . . . .” Plaintiffs point out that they filed these
cases with a good faith belief under then-existing Mississippi law that joinder of the plaintiffs
was proper, but that this Court has since clarified the requirements for joinder in Mississippi,
and that Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1097 (Miss. 2004) and
its progeny clearly prohibit Rule 20 joinder of the plaintiffs in this case.4 We therefore find
it unnecessary to include any analysis regarding the joinder issue. Because the Glass and
2
The two cases have different plaintiffs. The fact that both cases after amendments have fifteen
plaintiffs is merely coincidence.
3
3M’s motion was joined by other defendants. Because our disposition of this matter will
necessarily and equally affect all defendants, we shall refer only to 3M.
4
The Court is grateful to plaintiffs’ counsel for their professional and responsible admission in this
regard which spares us yet another detailed analysis of the issue.
4
Green plaintiffs fail to satisfy the requirements for joinder under Rule 20, we reverse the trial
court’s denial of 3M’s motions. That said, we now turn to the question of whether the
plaintiffs’ claims should be dismissed without prejudice or remanded for further action by the
trial court.
¶5. In August 2004 we reviewed an interlocutory appeal which, after seven amended
complaints, involved the “claims of 264 plaintiffs against 137 named defendants who . . .
identified approximately 600 different employers where asbestos exposure might have taken
place.” Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d at 494. The Mangialardi
defendants complained that the plaintiffs were improperly joined, and that they were given
insufficient information to intelligently present their motion for severance. Chief Justice
Smith, speaking for the majority, summed up the case as follows:
In essence, we are told that 264 plaintiffs were exposed over a 75-year period
of time to asbestos products associated with 137 manufacturers in
approximately 600 workplaces. We are not told which plaintiff was exposed to
which product manufactured by which defendant in which workplace at any
particular time.
Id. Thus, one could not determine which of the 264 plaintiffs were suing any particular
defendant, nor was any defendant informed of when, where or how any particular plaintiff was
harmed.
¶6. We held the Mangialardi plaintiffs’ failure to provide this “core information” within
their complaint violated Rules 8, 9, 10 and 11, of the Mississippi Rules of Civil Procedure.
Specifically, we stated that “[s]uch information must include, at a minimum, the name of the
defendant or defendants against whom each plaintiff makes a claim, and the time period and
location of exposure.” Id.at 495. Though some have complained that these simple
5
requirements place too great a burden on plaintiffs’ counsel in mass tort cases, we do not
agree. We think it reasonable to expect counsel to know prior to filing suit the identity of
each client, the defendant each client proposes to sue, the alleged harm committed by specific
defendants against each client, and the location and period of time the harm was committed.5
¶7. Nor should Mangialardi and Armond be read to spell doom (as some have predicted)6
for Rule 20 joinder. We intended Mangialardi to affect only those cases wherein counsel for
multiple plaintiffs file a lawsuit without first knowing and disclosing in the complaint the
defendant each client was suing and the basis for that particular client’s claims, that is, what the
particular defendant did wrong to the particular plaintiff, and when and where the wrong was
committed. Absent this basic information, it is unreasonable to expect that a defendant can
prepare an appropriate defense to the complaint or provide a proper and complete response to
discovery requests. Armond simply removes Mississippi from its dubious distinction as
extremely liberal on Rule 20 joinder7 and moves it to a more centrist position.
¶8. We do not view, nor did we intend, Mangialardi to add to or affect the Rule 20
requirements for joinder as discussed in the Armond line of cases. Rather, Mangialardi
5
Our decision in Mangialardi cannot fairly be read to say that every fact and detail must be pled.
For compliance with Mangialardi, it is enough to say, for instance, that “plaintiff A brings suit against
defendant B for XYZ wrongful conduct committed at defendant’s ABC facility during the years 1999, 2000
and 2001.”
6
At oral argument in this case, counsel for the plaintiffs stated, “Rule 20 has been emasculated to
the point where there will no longer ever be a joinder of plaintiffs in a tort case.”
7
See, e.g., In re: Bridgestone/Firestone, Inc., 260 F. Supp. 2d 722, 730-31 (S.D. Ind. 2003)
(joinder allowed in Mississippi would not be “appropriate” under Federal Rule 20); Jamison v. Purdue
Pharma Co., 251 F. Supp. 2d 1315 (S.D. Miss. 2003) (proper joinder under Mississippi Rule 20 would
be improper under Federal Rule 20).
6
simply reminds the Bar that even though Mississippi is a notice-pleading jurisdiction, our rules
of procedure require, at a minimum: (1) that each plaintiff provide “a short and plain
statement of the claim” that discloses why that plaintiff “is entitled to relief,” and “a demand
for judgment for the relief to which he deems himself entitled.” Miss. R. Civ. P. 8(a);8 (2) that
“averments of time and place are material and shall be considered like all other averments of
material matter.” Miss. R. Civ. P. 9(f);9 (3) that “each claim founded upon a separate
transaction or occurrence . . . shall be stated in a separate count . . . .” Miss. R. Civ. P.10(b);10
and (4) that the “signature of an attorney [on the complaint] constitutes a certificate . . . that to
the best of the attorney’s knowledge, information and belief there is good ground to support
it.” Miss. R. Civ. P.11(a).
¶9. Concerning Rule 20 joinder, plaintiffs’ failure to comply with the requirements of
pleading as discussed in Mangialardi renders the defendants without the necessary
information to evaluate and (if appropriate) challenge joinder of two or more of the plaintiffs;
and it places the trial court (as happened in the case before us today) in a position of having
insufficient information to determine whether joinder of the plaintiffs was in compliance with
the requirements of Armond. Thus, plaintiffs’ failure to comply with the requirements of
8
The official comment to Rule 8 provides, inter alia, that “[a]lthough Rule 8 abolishes many technical
requirements of pleadings, it does not eliminate the necessity of stating circumstances, occurrences and
events which support the proffered claim.” Miss. R. Civ. P. 8 cmt.
9
The official comment to Rule 9(f) provides, inter alia, that the rule “treats time and place as material
on a motion testing the sufficiency of the pleadings; accuracy in pleading time and place will facilitate the
identification and isolation of the transaction or event in issue and provide mechanism for the early
adjudication or testing of certain claims and defenses . . . .” Miss. R. Civ. P. 9 cmt.
10
The official comment to Rule 10(b) provides, inter alia, that “separate counts are required if they
facilitate the clear presentation of the matters set forth.” Miss. R. Civ. P. 10 cmt.
7
pleading as discussed in Mangialardi is unfair not only to the defendants but to the trial court
as well.
¶10. As previously stated, for purposes of today’s decision, we need not address the question
of Rule 20 joinder since, in light of Armond and its progeny, the plaintiffs recognize and agree
that they are improperly joined.11 We need only determine what should now be done with the
30 plaintiffs who seek remand and transfer to appropriate venues, and the 76 defendants who
seek dismissal without prejudice.
¶11. We recognize that Mangialardi was an abrupt wake-up call for many attorneys filing
mass-tort complaints. Although the complaints in the consolidated cases before us today do
not comply with the pleading requirements as discussed in Mangialardi, we are mindful that
they were filed more than four years ago. In fact, Mangialardi and Armond were both handed
down in 2004, at which time these cases had been consolidated and pending before this Court
on interlocutory appeal for over a year. Although the better practice would have been for
plaintiffs’ counsel to have filed a motion with this Court for permission to amend both
complaints and bring them in compliance with Mangialardi, we are aware that such motions
are extraordinary, and we hesitate to find fault with plaintiffs’ counsel under the facts before
us.
¶12. In Mangialardi, we remanded with instructions to plaintiffs’ counsel to provide the
required information within forty-five days. We further directed the trial court to dismiss
11
It is also noteworthy that, since this Court handed down Armond in 2004, the same trial judge
in both cases before us today has followed its requirements in other cases. It is unfortunate that, because
these consolidated cases were on appeal when Armond and Mangialardi were decided, the trial court
had no opportunity to apply the requirements of Armond here.
8
without prejudice the claims of all plaintiffs failing to comply, and to transfer to a court of
proper venue the claims of each plaintiff who complied. Justice demands that we do no less
here. Defendants argue that, because plaintiffs’ claims have no substance, we should dismiss
them without prejudice. However, any determination that the claims have no substance must
be made in the trial court in response to an appropriate motion. This Court does not sit as a
finder of fact and does not rule on such motions.
¶13. We note that two of the three counsel who signed the brief on behalf of the plaintiffs,
and many of the counsel who signed briefs on behalf of the various defendants, have homes and
offices in the Gulf Coast area.12 We find it appropriate under the circumstances for the trial
court to determine the period of time for plaintiffs’ counsel to provide the information as
ordered herein.
CONCLUSION
¶14. We therefore reverse the trial court’s orders denying defendants’ motion for
severance,13 and we remand Glass to the Circuit Court of Jefferson County and Green to the
Circuit Court of Claiborne County for further proceedings consistent with this opinion. Upon
remand, the trial court in each case shall sever the claims of each plaintiff. The trial court
shall, within thirty days of the date of issuance of the mandate in these cases, enter an order
setting an appropriate time limit – not exceeding sixty days from the date of the trial court’s
12
The immense devastation visited upon the Gulf Coast by Hurricane Katrina requires that this
Court be sensitive to the possibility of extreme hardship in cases including lawyers and parties from the
affected area.
13
The order denying severance in Green was entered on March 3, 2003. The order denying
severance in Glass was entered March 17, 2003.
9
order–for plaintiffs’ counsel to provide sufficient information to defendants and the trial court
for a determination of transfer, where possible, to a court of appropriate venue. The trial court
shall dismiss without prejudice each plaintiff who fails to timely furnish the information, and
each plaintiff whose claims have no court of proper venue in Mississippi. Counsel for each
plaintiff to be transferred is directed to file, prior to the transfer, an amended complaint for
that plaintiff which discloses – at a minimum – the defendant or defendants being sued, the
nature of the wrongful acts alleged against each defendant, and the place and period of time the
wrongful acts are alleged to have occurred.
¶15. REVERSED AND REMANDED.
SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J., CONCUR.
EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, GRAVES
AND RANDOLPH, JJ., NOT PARTICIPATING.
10