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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
JEREMIAH BART MORRIS,
Plaintiff Below, Appellant
CROWN EQUIPMENT CORPORATION,
a foreign corporation; and JEFFERDS CORPORATION,
dba HOMESTEAD MATERIALS HANDLING COMPANY,
a West Virginia Corporation,
Defendants Below, Appellees
Appeal from the Circuit Court of Kanawha County
Hon. Tod J. Kaufman, Judge
Case No. 04-C-1174
REVERSED AND REMANDED
Submitted: March 29, 2006
Filed: June 29, 2006
John W. Cooper, Esq.
Michael J. Farrell, Esq.
Cooper, Preston & Douglas Robert L. Hogan, Esq.
Parsons, West Virginia
Farrell, Farrell & Farrell
Thomas W. Pettit, Esq.
Huntington, West Virginia
Barboursville, West Virginia Attorneys for Crown Equipment Corp.
Attorneys for Appellant
Thomas J. Cullen, J. R., Esq.
Adam T. Sampson, Esq.
Godell, DeVries, Leech & Dawn
Pro Hac Vice
for Crown Equipment Corp.
Lawrence E. Morhous, Esq.
M. Hudson McClanahan, Esq.
Brewster, Morhous, Cameron, Mullin,
Caruth & Moore
Bluefield, West Virginia
Attorneys for Jefferds Corporation, dba
Homestead Materials Handling Co.
JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.
Syllabus Point 1, Chrystal R.M. v. Charlie A.L.
, 194 W.Va. 138, 459 S.E.2d 415 (1995).
2. Under the Privileges and Immunities Clause of the United States Constitution, Art. IV, Sec. 2, the provisions of W.Va. Code, 56-1-1(c)  do not apply
to civil actions filed against West Virginia citizens and residents.
3. W.Va. Code, 56-1-1(c)  does not require a plaintiff to separately
establish venue for each defendant.
In this case we hold that a plaintiff cannot be denied the right to bring a
products liability lawsuit in this state against a West Virginia corporation and an out-of-state
corporation merely because the plaintiff is a resident of another state.
Facts & Background
The complaint in the instant case alleged the following facts: the appellant and
plaintiff below, Jeremiah Bart Morris (Morris), a resident and citizen of Virginia,
suffered a severe leg injury at his place of employment in Virginia while operating a stand-up
forklift that was distributed and serviced by the appellee and defendant below, Jefferds
Corporation, dba Homestead Materials Handling Company (Jefferds), a West Virginia
corporation. The forklift was designed, manufactured, and distributed by the appellee and
defendant below, Crown Equipment Corporation (Crown), an Ohio corporation. (See footnote 1)
On April 30, 2004, Morris filed a civil action against Jefferds and Crown in the
Circuit Court of Kanawha County, West Virginia, alleging various products liability theories
of recovery, including negligence, strict liability, failure to warn, and breach of warranty, as
well as asserting a claim for punitive damages.
Jefferds and Crown filed motions to dismiss the complaint for improper venue
based upon W.Va. Code, 56-1-1 , which states:
(a) Any civil action or other proceeding, except where it is
otherwise specially provided, may hereafter be brought in the
circuit court of any county:
(1) Wherein any of the defendants may reside or the cause of
action arose, except that an action of ejectment or unlawful
detainer must be brought in the county wherein the land sought
to be recovered, or some part thereof, is;
(2) If a corporation be a defendant, wherein its principal office
is or wherein its mayor, president or other chief officer resides;
or if its principal office be not in this state, and its mayor,
president or other chief officer do not reside therein, wherein it
does business; or if it be a corporation organized under the laws
of this state which has its principal office located outside of this
state and which has no office or place of business within the
state, the circuit court of the county in which the plaintiff resides
or the circuit court of the county in which the seat of state
government is located shall have jurisdiction of all actions at
law or suits in equity against the corporation, where the cause of
action arose in this state or grew out of the rights of stockholders
with respect to corporate management;
(3) If it be to recover land or subject it to a debt, where the land
or any part may be;
(4) If it be against one or more nonresidents of the state, where
any one of them may be found and served with process or may
have estate or debts due him or them;
(5) If it be to recover a loss under any policy of insurance upon
either property, life or health or against injury to a person, where
the property insured was situated either at the date of the policy
or at the time when the right of action accrued or the person
insured had a legal residence at the date of his or her death or at
the time when the right of action accrued;
(6) If it be on behalf of the state in the name of the attorney
general or otherwise, where the seat of government is; or
(7) If a judge of a circuit be interested in a case which, but for
such interest, would be proper for the jurisdiction of his or her
court, the action or suit may be brought in any county in an
(b) Whenever a civil action or proceeding is brought in the
county where the cause of action arose under the provisions of
subsection (a) of this section, if no defendant resides in the
county, a defendant to the action or proceeding may move the
court before which the action is pending for a change of venue
to a county where one or more of the defendants resides and
upon a showing by the moving defendant that the county to
which the proposed change of venue would be made would
better afford convenience to the parties litigant and the
witnesses likely to be called, and if the ends of justice would be
better served by the change of venue, the court may grant the
(c) Effective for actions filed after the effective date of this
section, a nonresident of the state may not bring an action in a
court of this state unless all or a substantial part of the acts or
omissions giving rise to the claim asserted occurred in this
state: Provided, That unless barred by the statute of limitations
or otherwise time barred in the state where the action arose, a
nonresident of this state may file an action in state court in this
state if the nonresident cannot obtain jurisdiction in either
federal or state court against the defendant in the state where
the action arose. A nonresident bringing such an action in this
state shall be required to establish, by filing an affidavit with the
complaint for consideration by the court, that such action
cannot be maintained in the state where the action arose due to
lack of any legal basis to obtain personal jurisdiction over the
In a civil action where more than one plaintiff is joined, each
plaintiff must independently establish proper venue. A person
may not intervene or join in a pending civil action as a plaintiff
unless the person independently establishes proper venue. If
venue is not proper as to any such nonresident plaintiff in any
court of this state, the court shall dismiss the claims of the
plaintiff without prejudice to refiling in a court in any other
state or jurisdiction.
Jefferds and Crown argued in their motions to dismiss that Morris is a
nonresident (See footnote 2) of West Virginia, and that no substantial part of Morris' cause of action arose
in West Virginia. Therefore, Jefferds and Crown argued, the provisions of W.Va. Code, 56-
1-1(c) required dismissal of Morris' case on improper venue grounds, unless Morris
demonstrated by affidavit that he could not bring his case in some other jurisdiction.
Morris argued in reply that the application of W.Va. Code, 56-1-1(c)  to
Morris as a nonresident in the fashion suggested by Jefferds and Crown was unconstitutional
under the Privileges and Immunities Clause of the United States Constitution, Art. IV, Sec.
2, which states in pertinent part: The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States. (See footnote 3)
Morris argued that the interpretation and application of W.Va. Code, 56-1-1(c)
 asserted by Jefferds and Crown was constitutionally impermissible because such an
interpretation and application would impose a categorical bar upon nonresidents of West
Virginia in their access to the West Virginia courts in cases where an otherwise similarly
situated resident of West Virginia would not experience such a bar.
Morris further argued that Jefferds' status as a West Virginia corporation
established proper venue as to Jefferds, and that because Jefferds served as a venue-giving
defendant, Morris could properly join Crown as well.
Finally, Morris argued that the statutory prerequisite for the application of W.Va. Code, 56-1-1(c)  _ that all or a substantial part of the acts or omissions giving
rise to the claim asserted [did not occur in West Virginia] _ was not established. Morris
argued that his Complaint and two subsequent Amended Complaints in fact did set forth
allegations establishing that a substantial part of the acts or omissions giving rise to his
claims did occur in West Virginia. (See footnote 4)
The circuit court accepted Jefferds' and Crown's arguments based on Morris'
nonresidency and W.Va. Code, 56-1-1(c) . By orders dated September 1, 2004, and
November 24, 2004, the circuit court granted the appellees' motions to dismiss. The circuit
court also issued an Order Denying Plaintiff's Motion to Reconsider on November 29,
2004. Morris appeals from these orders.
Standard of Review
A trial court's ruling on a motion to dismiss is reviewed under a de novo standard. Kopelman and Associates v. Collins, 196 W.Va. 489, 492, 473 S. E. 2d 910, 913
(1996). Constitutional challenges relating to a statute are reviewed pursuant to a de novo standard of review. West Virginia ex rel. Citizens Action Group v. West Virginia Economic
Development Grant Committee, 213 W.Va. 255, 261-262, 580 S. E. 2d 869, 875-876 .
Where the issue on an appeal from the circuit court is clearly a question of law or involving
an interpretation of a statute, we apply a de novo standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
We begin our discussion by examining the Privileges and Immunities Clause,
Art. IV, Sec. 2, of the United States Constitution. We then look to what courts have said
about access to the courts and the Clause.
Privileges and Immunities
In Austin v. New Hampshire, 420 U.S. 656, 662, 95 S.Ct. 1191, 1195, 43 L.Ed.
2d 530, 535-536 (1975), the Court stated:
The Privileges and Immunities Clause, by making
noncitizenship or nonresidence an improper basis for locating a
special burden, implicates not only the individual's right to
nondiscriminatory treatment but also, perhaps more so, the
structural balance essential to the concept of federalism.
In Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 380-382,
98 S.Ct. 1852, 1858-1859, 56 L.Ed. 2d 354, 363-364 (1978), the Court quoted from Paul v.
Virginia, 8 Wall. 168, 180 (1869):
It was undoubtedly the object of the clause in question to place
the citizens of each State upon the same footing with citizens of
other States, so far as the advantages resulting from citizenship
in those States are concerned. It relieves them from the
disabilities of alienage in other States; it inhibits discriminating
legislation against them by other States; it gives them the right
of free ingress into other States, and egress from them; it insures
to them in other States the same freedom possessed by the
citizens of those States in the acquisition and enjoyment of
property and in the pursuit of happiness; and it secures to them
in other States the equal protection of their laws. It has been
justly said that no provision in the Constitution has tended so
strongly to constitute the citizens of the United States one
people as this.
and from Hague v. CIO, 307 U.S. 496, 511, 59 S.Ct. 954, 962, 83 L. Ed. 1423, 1434 (1939)
(Roberts, J. concurring):
. . . Article IV, § 2, does not import that a citizen of one State
carries with him into another fundamental privileges and
immunities which come to him necessarily by the mere fact of
his citizenship in the State first mentioned, but, on the contrary,
that in any State every citizen of any other State is to have the
same privileges and immunities which the citizens of that State
enjoy. The section, in effect, prevents a State from
discriminating against citizens of other States in favor of its
Access to the Courts
On the subject of access to the courts in the context of the Privileges and
Immunities Clause, Am. Jur. 2d, Constitutional Law, Sec. 769 (2006) says:
Among the privileges and immunities of citizenship is included
the right of access to courts for the purpose of bringing and
maintaining actions. This privilege includes the right to employ
the usual remedies for the enforcement of personal rights in
actions of every kind. While a state may decide whether and to
what extent its courts will entertain particular causes, any
policy the state may choose to adopt must operate in the same
way upon citizens of other states as upon its own, and the
privileges it affords to the latter class it must afford to the same
extent to the other, but not to any greater extent.
(Footnotes omitted, emphasis added.)
In McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233, 54 S.Ct. 690, 691,
78 L. Ed. 1227, 1229 (1934), the Court stated:
The power of a State to determine the limits of the jurisdiction
of its courts and the character of the controversies which shall
be heard in them is, of course, subject to the restrictions imposed
by the Federal Constitution. The privileges and immunities
clause requires a state to accord to citizens of other states
substantially the same right of access to its courts as it accords
to its own citizens.
In Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148-149, 28 S.Ct.
34, 35, 52 L.Ed.143, 146 (1907), the Court stated:
The right to sue and defend in the courts is the alternative of
force. In an organized society it is the right conservative of all
other rights, and lies at the foundation of orderly government. It
is one of the highest and most essential privileges of citizenship,
and must be allowed by each state to the citizens of all other
states to the precise extent that it is allowed to its own citizens.
Equality of treatment in this respect is not left to depend upon
comity between the states, but is granted and protected by the
The state policy decides whether and to what extent the state
will entertain in its courts transitory actions, where the causes of
action have arisen in other jurisdictions. . . . But any policy the
state may choose to adopt must operate in the same way on its
own citizens and those of other states. The privileges which it
affords to one class it must afford to the other. Any law by
which privileges to begin actions in the courts are given to its
own citizens and withheld from the citizens of other states is
void, because in conflict with the supreme law of the land.
In Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553, 562, 40 S.Ct. 402, 404,
64 L.Ed. 713, 716 (1920), the Court stated:
. . . [t]he constitutional requirement is satisfied if the nonresident
is given access to the courts of the State upon terms which in
themselves are reasonable and adequate for the enforcing of any
rights he may have, even though they may not be technically and
precisely the same in extent as those accorded to resident
citizens. The power is in the courts, ultimately in this court, to
determine the adequacy and reasonableness of such terms. A
man cannot be said to be denied, in a constitutional or in any
rational sense, the privilege of resorting to courts to enforce his
rights when he is given free access to them for a length of time
reasonably sufficient to enable an ordinarily diligent man to
institute proceedings for their protection. (See footnote 5)
Finally, a leading commentator has said:
The familiar rhetorical statements of the unqualified duty of a
state to open its courts to citizens of other states are no longer to
be taken literally . . . These statements do,
however, express the
truth that the privileges-and-immunities clause requires a state
to open the doors of its courts to citizens of other states who
assert claims against local residents and citizens, even on
causes of action predicated upon the law of another state, if it
would allow its own citizens to assert such a cause of action.
. . [I]t is the duty of the governments to make their citizens and
persons residing within their borders respond to their civil
obligations; any other rule would be intolerable.
(Emphasis added.) Carrie and Schechter, Unconstitutional Discrimination in the Conflict
of Laws: Privileges and Immunities, 69 Yale Law Journal 1323, 1383 (1960). (See footnote 6)
From the foregoing authorities, it may be concluded that there is a strong
constitutional disfavoring of the categorical exclusion of nonresident plaintiffs from a state's
courts under venue statutes when a state resident would be permitted to bring a similar suit.
The appellee Jefferds argues that despite the foregoing authority, W.Va. Code,
56-1-1(c)  should be read to set forth a constitutionally valid rule that categorically
bars nonresidents from bringing certain lawsuits _ even lawsuits against West Virginia
residents _ when the same lawsuit could be brought by a West Virginia resident.
That is, under Jefferds' proposed reading and application of W.Va. Code, 56-1-
1(c) , if Mr. Morris and a West Virginia resident had both been injured in the accident
in question, the West Virginia resident would encounter no obstacle to filing suit against
Jefferds in West Virginia. Only Morris would be so barred, by reason of his residency in
Virginia. However, the foregoing-quoted authorities are agreed in stating that Privileges and
Immunities Clause counsels against such discrimination against nonresidents and favoritism
and protectionism on behalf of residents.
Jefferds argues that this Court is restricted by our decision in State ex rel. Riffle
v. Ranson, 195 W.Va. 121, 464 S.E.2d 763 (1995) from narrowing or constraining a broad,
literal application of W.Va. Code, 56-1-1(c)  that would categorically bar suits by
nonresidents in West Virginia courts in instances when the same suit could be brought by a
West Virginian _ even cases against West Virginia defendants.
Our decision in Riffle simply deferred to Legislatively-prescribed principles
governing intra-state venue. However, in Riffle this Court explicitly disavowed applying its
decision to interstate situations. 195 W.Va. at 128, n.11, 464 S.E.2d 763, at 770, n.11. This
Court also noted in Riffle that none of the parties had raised constitutional challenges to the
statutory language at issue in that case. Id., 195 W.Va. at 126 n.6, 464 S. E. 2d at 768 n.6. Accordingly, Riffle does not and could not authorize this Court to disregard the Privileges
and Immunities Clause of the United States Constitution, when that issue is properly brought,
as it affects a provision of our venue statutes in an interstate context.
A reading or application of W.Va. Code
56-1-1(c)  that would
categorically immunize a West Virginia defendant like Jefferds from suit in West Virginia
by a nonresident would contravene the constitutionally permissible scope of the venue
statutes in an interstate context. There is no evidence in the cases cited by the parties or
identified in this Court's research showing any trend in favor of such distinctions.
Additionally, erecting such barriers would contravene established West Virginia law,
including other provisions of W.Va. Code
, 56-1-1 . (See footnote 7)
It is axiomatic that
. . . wherever an act of the legislature can be so construed and
applied as to avoid a conflict with the constitution, and give it
the force of law, such construction will be adopted by the court.
Peel Splint Coal Co. v. State, 15 S.E. 1000, 1004 (1892). A narrow-breadth reading of a
statute to assure that its application is constitutionally proper is appropriate as a less-
intrusive remedy, cf. Weaver v. Shaffer, 170 W.Va. 107, 111, 290 S.E.2d 244, 248 (1980).
We therefore hold that under the Privileges and Immunities Clause of the United States Constitution, Art. IV, Sec. 2, the provisions of W.Va. Code, 56-1-1(c) 
do not apply to civil actions filed against West Virginia citizens and residents.
Applying the foregoing principles to the facts of the instant case, we conclude
that the circuit court impermissibly applied W.Va. Code, 56-1-1(c)  to treat Mr.
Morris' nonresidency as a categorical bar to his bringing a suit in West Virginia against
Jefferds. Moreover, Jefferds is a West Virginia corporation, and the provisions of W.Va.
Code, 56-1-1(c)  do not apply to Morris' suit against
Therefore, the circuit court's dismissal of Morris' suit against Jefferds must be
We turn our discussion to the circuit court's dismissal of Morris' case against
Crown, the manufacturer of the product that Morris says caused his injury. Crown is not a
West Virginia corporation, but it is the manufacturer of a product that was sold and
distributed by a West Virginia corporation.
It must first be recognized that Morris' suit against Crown is essentially a
products liability case. Products liability suits typically allege that a manufacturer designed
and/or produced a product and put the product into the stream of commerce, and that the
product was unsafe or flawed in such a way so as to give rise to the liability of the
manufacturer for injuries resulting from the use of the product. The alleged unsafeness or
flaw(s) may be as a result of the actual design or construction of the product, or in the
adequacy of warnings provided to the user(s) of the product. See generally Morningstar v.
Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979) and its progeny.
Products liability cases are a feature of every state's law, and manufacturers
who put their products into the stream of interstate commerce expect that they may be called
to account in court for the safety of the design and manufacture of their products in other
states _ even though no culpable conduct by the manufacturer relating to the design or
manufacture of the product occurred in the jurisdiction in which the claim against the
manufacturer is brought. This fundamental principle of products liability law underlies our
A second fundamental principle that must be recognized is that:
This Court follows the venue-giving defendant principle,
whereby, once venue is proper for one defendant, it is proper for
all other defendants subject to process.
Syllabus Point 1, Staats v. Co-Operative Transit Co.
, 125 W.Va. 473, 24 S.E.2d 916 (1943); McConaughey v. Bennett's Executors
, 50 W.Va. 172, 179, 40 S.E. 540, 541 (1901). See also State ex rel. Kenamond v. Warmuth
, 179 W.Va. 230, 231, 366 S.E.2d 738, 739-40 (1988); McGuire v. Fitzsimmons
197 W.Va. 132, 137, 475 S.E.2d 132, 137 (1996); Union Carbide
& Carbon Corp. v. Linville
, 142 W.Va. 160, 164-165, 95 S.E. 2d 54, 57 (1956); Webber v.
, 135 W.Va. 138, 146-147, 62 S.E. 2d 690, 696 (1950); McConaughey & Co. v.
, 50 W.Va. 172, 179, 40 S.E. 540, 542-543 (1901). The principle of the venue-giving
defendant has been an established feature of our law for more than one hundred years, and
it is closely intertwined with our procedural rules on joinder. (See footnote 8)
Complementing and reflecting the longstanding venue-giving defendant
principle in our case law and our procedural rules, the provisions of W.Va. Code, 56-1-1
 state that venue for any civil action or the cause of action is appropriate wherein any of the defendants may reside . . . and where one or more of the defendants resides. W.Va. Code, 56-1-1(a) and (b)  (emphasis added).
Crown argues that despite the fact that products liability cases are commonly
brought against manufacturers in jurisdictions other than where the product was designed or
built, and despite West Virginia's settled venue-giving defendant principle, because Morris
is a nonresident of West Virginia, Morris must show separate acts by Crown that occurred
in West Virginia (i. e., Morris must separately establish venue for Crown) before Morris
can join Crown as a defendant along with Jefferds in Morris' suit in West Virginia.
In support of this argument, Crown points to language in W.Va. Code, 56-1-
1(c) which would bar suit by a nonresident in West Virginia . . . unless all or a
substantial part of the acts or omissions giving rise to the claim asserted occurred in this
state. Crown notes that W.Va. Code, 56-1-1(a) and (b)  use the terms cause of
action or civil action when saying that a case may be brought wherever one of the
defendants is located, see discussion supra _ while W.Va. Code, 56-1-1(c) uses the
term claim. Crown argues that Morris therefore must separately establish venue for his
claim against Crown, by showing culpable acts or omissions by Crown that occurred in
A rule in accord with Crown's argument would run counter to established
principles of joinder and judicial economy. Modern economies operate in complex, multi-
jurisdictional networks of designers, manufacturers, distributors, retailers, purchasers, and
users. When reasonably possible, legal claims involving these sorts of parties that arise from
particular incidents and injuries involving a product should be resolved in a unitary forum.
As this Court recently stated in Charleston Area Medical Center, Inc. v. Parke-
Davis, 217 W. Va. 15, 21, 614 S.E.2d 15, 21 (2005), quoting Board of Ed. v. Zando, et. al.,
182 W.Va. 597, 603-604, 390 S.E. 2d 796, 802-803:
[t]he fundamental purpose of inchoate contribution is to enable
all parties who have contributed to the plaintiff's injuries to be
brought into one suit. Not only is judicial economy served, but
such a procedure also furthers one of the primary goals of any
system of justice _ to avoid piecemeal litigation which cultivates
a multiplicity of suits and often results in disparate and unjust
I n the instant case, where a substantial part of the culpable acts or omissions
of one joint tortfeasor (Jefferds) are alleged to have occurred in West Virginia, and where
the culpable acts or omissions of a second joint tortfeasor (Crown) are alleged to have
occurred outside West Virginia, a requirement that the plaintiff independently establish
venue with respect to the out-of-state tortfeasor would effectively prevent joinder of the out-
of-state tortfeasor. This would be an absurd result, contrary to all established procedure.
Additionally, Crown's assertion that the statute's use of the word claim
supports Crown's argument is not well-founded. Black's Law Dictionary, Centennial
Edition, 6th Ed. 1990, defines the term claim, inter alia, as [a] cause of action. In Barker
v. Traders Bank, 152 W.Va. 774, 780, 166 S.E.2d 331, 335 (1969), this Court stated that
Rule 8(a), R.C.P., contemplates a succinct complaint containing a plain statement of the nature of the claim together with a demand for judgment. (Emphasis added). Cf. Sticklen
v. Kittle, 168 W.Va. 147, 162, 287 S.E.2d 148, 156 (1981) (equating claim and
There is certainly a sufficient overlap and identity between the ordinary
meaning of the terms claim, civil action, and cause of action, as they are used in W.Va.
Code, 56-1-1  so as to weigh against finding that the use of the word claim in W.Va.
Code, 56-1-1(c) establishes a novel rule that would fragment cases, foster piecemeal
litigation, and radically alter settled procedures.
Additionally, Crown's suggestion that such a rule should be applied only to
nonresidents runs headlong into the foregoing-discussed constitutional principles that
strongly disfavor discrimination on the basis of residency in access to the courts. Application
of these principles further weighs against such a reading of the statutory language.
For these reasons, this Court will not derive such an intent from the statute's
use of the word claim, nor enforce such a rule. Following our settled law, we hold that W.Va. Code, 56-1-1(c)  does not require a nonresident plaintiff to separately establish
venue for each defendant.
Based on this holding, the circuit court's dismissal of Crown as a defendant
must be reversed.
The circuit court's dismissal of the plaintiff's claims against the appellants is
reversed and this case is remanded.
Reversed and Remanded.
The complaint further alleged that Jefferds was incorporated under the laws of West
Virginia, had its principal place of business in Kanawha County, West Virginia, conducted
business in Kanawha County, West Virginia, and was engaged in the business of servicing,
maintaining, providing warnings, providing training, testing, inspecting, marketing,
distributing, and selling materials handling equipment, including Crown stand-up forklifts.
The complaint further alleged that Jefferds provided, serviced, maintained, tested, inspected,
marketed, provided with warnings, provided training for, and distributed to Morris' employer
the Crown stand-up forklift upon which Morris was injured.
This opinion will primarily use the term nonresident to mean a nonresident or
noncitizen of West Virginia; and similarly, the term resident will mean resident or
citizen.It is now established that under the Privileges and Immunities Clause there is ordinarily no
difference between discrimination based on a person's residence and discrimination based
on a person's citizenship.
. . . [D]espite some initial uncertainty . . . it is now established
that the terms citizen and resident are essentially
interchangeable, Austin v. New Hampshire
, 420 U.S. 656, 662,
n. 8[, 95 S.Ct. 1191, 1195 n. 8, 43 L.Ed.2d 530 n. 8] (1975), for
purposes of analysis of most cases under the Privileges and
United Bldg. and Const. Trades Council of Camden County and Vicinity v. Mayor and
Council of City of Camden
, 465 U.S. 208, 216, 104 S. Ct. 1020, 1026 - 1027, 79 L.Ed. 2d
249, __ (1984).
Similarly, while the Court unquestionably has come to treat the
terms citizen and resident in this area as essentially
interchangeable, Austin v. New Hampshire
, 420 U.S., at 662, n.
8, it has done so not out of a general disregard for the
Constitution's language, but rather because the practical
relationship between residence and citizenship is close enough
that discrimination on the basis of the one criterion effectively
amounts to discrimination based on the other.
. at 234, 104 S.Ct. at 1036, 79 L. Ed. 2d at 249 (1984). Thus, when weighing the
persuasiveness and relevance of decisions in cases that statedly rest their reasoning on the
premise that discrimination against individuals on the basis of citizenship is constitutionally
suspect _ while discrimination on the basis of residence is constitutionally inoffensive _ the
current irrelevance of that distinction in most cases must be taken into account.
Morris also raised the Open Courts Clause of the West Virginia Constitution
, Art. III,
Sec. 17, which states that:
The courts of this State shall be open, and every person
, for an
injury done to him, in his person, property, or reputation, shall
have remedy by due course of law; and justice shall be
administered without sale, denial or delay.
In light of our disposition of the instant case, we do not address this constitutional provision.
The Federal venue statute, 28 U.S.C. Sec. 1391, provides that venue lies in any
district in which a substantial part
of the events or omissions giving rise to the claim
occurred . . . (Emphasis added). [T]his rule . . . is open to the possibility that a claim may
have arisen in more than one district . . ., Hodson v. A. H. Robins Co.
528 F. Supp. 809, 814
(E.D. Va. 1981). [T]he plaintiff is not required to establish that his chosen venue 'has the
most substantial contacts to the dispute; rather, it is sufficient that a
substantial part of the
events occurred [here], even if a greater part of the events occurred elsewhere.' Country
Home Prods. v. Schiller-Pfeiffer, Inc.
, 350 F. Supp. 2d 561, 568 (D. Vt. 2004) (emphasis
added, citing Kirkpatrick v. Rays Group
, 71 F. Supp. 2d 204, 212 (S.D.N.Y. 1996)). The
Supreme Court of Pennsylvania has stated that determining whether conduct is a substantial
factor . . . simply involves the making of a judgment as to whether defendant's conduct . . .
is so insignificant that no ordinary mind would think of it as a cause for which a defendant
should be held responsible. Ford v. Jeffries
, 379 A. 2d 111, 114 (Pa. 1977) (citing the Restatement (Second) of Torts
sec. 431, comments a. and b.).
For reasons that do not appear in the record, the circuit court did not grant Morris'
timely motions for leave to amend his complaint, and denied Morris' requests for leave to
conduct limited discovery to establish further facts that would show that venue was proper
in West Virginia. A party may amend a pleading by leave of court, and such leave shall be
freely given when justice requires. W.Va.R.Civ.P.
15(a); Brooks v. Isinghood
, 213 W.Va.
675, 684, 584 S. E. 2d 531 (2003). The circuit court did indicate that it had considered the allegations in Morris'
amended complaints in ruling on the Jefferds and Crown motions to dismiss.
Morris's Second Amended Complaint stated, in part:
i. Jefferds inadequately serviced and maintained, failed to
provide adequate warnings, failed to provide adequate training,
provided warranties, failed to adequately test, failed to
adequately inspect, failed to adequately analyze the dangers of,
failed to adequately disclose the dangers of, failed to guard
against the dangers of, marketed, distributed, installed, and/or
sold the forklift at issue at or from its offices in West Virginia;
ii. Jefferds made (or failed to make) management level
analyses and decisions from its West Virginia corporate
headquarters related to service and maintenance schedules and
items; training of service and maintenance personnel; product
safety and the dangers associated with the use of the product;
operator safety; warnings to be provided and the sufficiency
thereof; operator training and instruction and the sufficiency
thereof; warranties to be provided; testing; inspection;
necessary guarding; product lines to be carried; marketing;
distribution; sale; installation; associated contractual
arrangements or other agreements; and other items related to
stand-up forklifts in general, and the forklift which caused the
plaintiff's injury in particular;
iii. Jefferds made the contractual arrangements or other
agreements related to the provision and installation of the
subject forklift to the Alcoa facility, through its office in West
iv. The instructions, manuals, warnings, service records,
installation records, warranties, and other information about the
forklift were provided by Jefferds out of its West Virginia
v. The employees of Jefferds who serviced the forklift both
prior to and after installation at the Alcoa facility were provided
from its office in West Virginia;
vi. The employees of Jefferds who serviced the forklift both
prior to and after installation at the Alcoa facility were trained
at its office in West Virginia;
vii. Jefferds failed, at its office in West Virginia, to properly
evaluate and investigate the design of Crown's stand-up forklifts
and the associated dangers;
viii. Jefferds failed, at its office in West Virginia, to properly
evaluate and investigate the accident history of Crown stand-up
forklifts, and to warn its customers and end users thereof;
ix. Jefferds failed, at its office in West Virginia, to adequately
analyze the hazards to the operators of the forklifts and guard
against the same;
x. Jefferds failed, from its offices in West Virginia, to provide
adequate operator training and instruction;
xi. Jefferds marketed, distributed, sold, or otherwise installed
the forklift from its offices in West Virginia;
x. Jefferds engaged in other, as yet unidentified, substantial
acts or omissions related to the claims being asserted.
Although it is not necessary to decide this issue in light of our resolution of the instant
case, it seems clear that the plaintiff's Second Amended Complaint does sufficiently allege
that a substantial portion of the acts or omissions giving rise to Morris' claims occurred
in West Virginia.
See also Missouri Pacific Railroad Co. v. Clarendon Boar Oar Co.
, 257 U.S. 533,
535, 42 S.Ct. 210, 211, 66 L. Ed. 354, 356 (1922) ([The Privileges and Immunities Clause]
secures citizens of one State the right to resort to courts of another, equally with citizens of
the latter State[.]); Miles v. Illinois Central Railroad Co.
, 315 U.S. 698, 704, 62 S.Ct. 827,
830, 86 L. Ed. 1129, 1134, (1942); Travis v. Yale & Towne Manufacturing Co.
, 252 U.S. 60,
78, 40 S.Ct. 228, 64 L.Ed. 460, 469 (1920).
See also Gober v. Federal Life Ins. Co.
, 255 Mich. 20, 24, 237 N.W. 32, 33 (1931)
(applying the Privileges and Immunities Clause) (If defendant were a domestic corporation,
there would be no doubt of plaintiff's right to sue in this State on her cause of action.).
, 56-1-1(a)(1)  states that venue lies against a domestic corporation
doing business in this State wherein its principal office is located, or where its president or
principal officer resides. We recognized in Wetzel County Savings and Loan v. Stern Bros.,
., 156 W.Va., 693, 699, 195 S.E. 2d 732, 737 (1973), that the principal place of business
of the defendant corporation was an appropriate venue for a lawsuit. In
the Syllabus of State
ex rel. Huffman v. Stephens
, 206 W.Va. 501, 526 S.E.2d 23 (1999), we stated:
Whether a corporation is subject to venue in a given county in
this State under the phrase in W. Va.Code, 56-1-1(b), wherein
it does business depends upon the sufficiency of the
corporation's minimum contacts in such county that demonstrate
it is doing business . . ..
Syllabus, Brent v. Board of Trustees of Davis and Elkins College
, 163 W.Va. 390, 256
S.E.2d 432 (1979):
If a corporation has made a contract to be performed in whole or
in part by any party thereto in a county, has committed a tort in
whole or in part in that county, or has manufactured, sold,
offered for sale or supplied any product in a defective condition
and such product has caused injury to any person or property
within that county, it is doing business there and the county's
courts have venue to try suits against it which arise from or grow
out of such contract, tort or manufacture, sale, offer for sale or
supply of such defective product.
See also McGuire v. Fitzsimmons
, 197 W.Va. 132, 136, 475 S.E. 2d 132, 136 (1996):
The plain language of W. Va.Code, 56-1-1(a)(1)  does
not limit the venue to one county but provides at least two
possible justifications for proper venue: either the residence of
where the cause of action arose.
The mandatory joinder rule of W.Va.R.Civ.P., Rule 19(a) requires a plaintiff to join
in one action all persons who are subject to service of process and in whose absence
complete relief cannot be accorded among those already parties. Similarly, the permissive
joinder rule of W.Va.R.Civ.P., Rule 20, permits a plaintiff to join as defendants all persons
whose liability arises out of the same transaction, occurrence, or series of occurrences and
if any question of law or fact common to all defendants will arise in the action. The goal
of both mandatory and permissive joinder is the promotion of judicial economy by preventing
both the duplication of effort and the uncertainty embodied in piecemeal litigation.