Although concerns about Missouri’s missing 'pending action doctrine' haven’t been at the forefront of the civil justice reform movement, the issue is expected to increase in importance in the future as companies become more globalized.
“Certainly, companies that maintain assets in other countries, and even other states, could be drawn into court over actions in other countries,” said Rich AuBuchon, executive director of the Missouri Civil Justice Reform Coalition. “That's become the issue that I was made aware of. The statute would even apply in situations where in other states causes of action are pending.”
Under current law in Missouri, pursuant to Estate of Holtmeyer v. Piontek, the resolution of a duplicate matter should occur through the prior action and the second suit should be dismissed when a claim has the same subject matter and parties as a previously filed action.
But, there’s a caveat that does not include legal action from other states or countries.
“Abatement is really only applied in Missouri to cases that are filed in Missouri,” Aubuchon told the St. Louis Record. "The issue is a matter of fairness. It's not covered by the rule and, in my experience dealing with the courts on the issue, if it's not covered by a rule, the fact is the courts won't hear it."
That's because of Section 509.290(8) of Rule 55.27(9) where abatement is not extended by the Missouri courts to include pending actions in foreign jurisdictions.
“Dismissing the second pending action works fine and dandy if you are in the state that's controlling these same issues but certainly parties shouldn't be subject to harassment with multiple lawsuits from different states over the same facts,” AuBuchon said.
Other states have addressed this issue by allowing the courts discretion to enter a stay but such a statute or rule has yet to be codified in Missouri, according to AuBuchon.
“It's something Missouri should consider,” he said. "At least in other states, there is an opportunity for a stay, if not direct dismissal."
Adding the missing doctrine to the law books would require action from the Missouri Civil Rules Committee, which convenes throughout the year and is charged with updating Missouri rules.
"Action could be requested by a member of the bar or it could be requested by a member of the Senate Committee to consider that rule," AuBuchon said.
But civil justice reform expert further argues that the committee is unlikely to address implementing a pending action doctrine without a law in place because the statute that is clear on the issue in Section 509 doesn't allow it.
Instead, a lawmaker proposing a new statute would likely be more effective.
"That would be a way to change Chapter 509 to allow for that scenario even if it were such that it would allow the court the discretion to stay a pending action," AuBuchon added. "Certainly, there are a lot of nuances with other jurisdictions' laws even within other states, but extend that into other countries and their laws could be applied very differently. So, there is good reason why you might stay a pending action until the outcome of the prior following case."