An abridged version of this article appeared in Law360 on November 10, 2022.
This morning, the Supreme Court heard argument in Mallory v. Norfolk Southern Railway Co., an under-the-radar personal jurisdiction case that will have wide-reaching and potentially paradigm-shifting implications for plaintiffs and corporate defendants. Though it has been overshadowed by the many hot-button issues being decided by the Justices, Mallory might be one of the biggest sleeper cases this Term. And it is especially significant for litigants involved in class action, products liability, mass tort, and corporate cases.
The Court is tasked with answering a straightforward question: can a Virginia resident sue a Virginia company in Pennsylvania for acts that occurred in Virginia and Ohio based solely on the fact that the company is registered to do business there? Under the Supreme Court’s recent decisions in Daimler AG v. Bauman[i] and Goodyear Dunlop Tires Ops., S.A. v. Brown,[ii] most would assume that answer to be an easy “no.” But more than a century ago, while still under Pennoyer v. Neff ’s [iii] territorial approach to personal jurisdiction, the Court held in Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co.[iv]that such a case could proceed under a “consent-by-registration” theory.
Standing at the crossroads of overruling a hundred-year-old decision or continuing its recent trend favoring a narrow view of general jurisdiction, the Justices appear ready to stick with the latter or, as an alternative third path, find that consent-by-registration requirements constitute an unconstitutional condition. In doing so, the Court will resolve what has become a deep schism among the lower courts and, in the process, likely confirm that corporate defendants remain safe “at [their] home[s],”[v] and not those of their registered agents.
Lay of the Land
Before turning to the facts of Mallory, we outline the current state of personal jurisdiction. The Fourteenth Amendment’s Due Process Clause limits a State court’s power to exercise jurisdiction over defendants.[vi] To that end, the Supreme Court recognizes two kinds of personal jurisdiction. The first is “general” or “all-purpose” jurisdiction, which extends to “any and all claims” brought against a defendant, regardless of those claims’ relation to the forum.[vii] The second is known as “specific” or “case-linked” jurisdiction.[viii] Mallory concerns the former.
We begin with Pennoyer v. Neff, the Supreme Court’s first foray into the issue. There, the Court determined that due process required either the “voluntary appearance” or personal service of process in the forum state on an out-of-state defendant to bring that defendant within the State’s jurisdiction.[ix] This so-called “territorial” view of personal jurisdiction focused on physical presence, dictated by the social and geographical strictures of the late Nineteenth Century.
As Justice Gorsuch observed, in the years following Pennoyer, “States sought to obviate any potential question about corporate jurisdiction by requiring an out-of-state corporation to incorporate under their laws too, or at least designate an agent for service of process.”[x] “[T]he idea was to secure the out-of-state company’s presence or consent to suit” there.[xi]
During that time, the Supreme Court decided Pennsylvania Fire, where it formally adopted the concept of general corporate jurisdiction under a “registration-by-consent” theory.[xii] There, an out-of-state insurance company secured a license to do business in Missouri. Complying with that State’s corporate statute, the company filed a power of attorney “consenting that service of process upon the superintendent [of the insurance department] should be deemed personal service upon the company so long as it should have any liabilities outstanding in the State.”[xiii]
Soon after, a party brought suit in Missouri and served process on the insurance company’s superintendent in accordance with the statute. The company argued that the service was “insufficient” and that, “if the statute were construed to govern the present case[,] it encountered the 14th Amendment by denying to the defendant due process of law.”[xiv] Justice Oliver Wendell Holmes, writing for the unanimous Court, disagreed. He observed that:
[t]he defendant had executed a power of attorney that made service on the superintendent the equivalent of personal service. If by a corporate vote it had accepted service in this specific case there would be no doubt of the jurisdiction of the state court over a transitory action of contract. If it had appointed an agent authorized in terms to receive service in such cases, there would be equally little doubt. It did appoint an agent in language that rationally might be held to go to that length. The language has been held to go to that length, and the construction did not deprive the defendant of due process of law even if it took the defendant by surprise, which we have no warrant to assert.[xv]
Thus, under Pennsylvania Fire, “where a state statute notifies an out -of -state corporation that by registering and appointing an agent for service of process sin the state, the corporation has consented to general personal jurisdiction there.”[xvi]
Pennoyer’s influence continued to dominate the landscape until 1945, when the Supreme Court issued its seminal decision in International Shoe Co. v. Washington.[xvii] There, the Court reconsidered the application of “territorial” jurisdiction’s continued application to corporate entities.[xviii] Starting with the basic premise that “the corporate personality is a fiction,” the Court observed that, unlike a natural person, a business’s “presence without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it.”[xix] Thus, the Court held that a State could exercise personal jurisdiction over a corporate defendant when it had “minimum contacts . . . such that the maintenance of the suit [did] not offend traditional notions of fair play and substantial justice,” or in situations where the corporation’s continuous operations in the forum State were “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.”[xx] But the Court neither overruled nor referenced its decision in Pennsylvania Fire. Nor did it reject application of a “consent-by-registration” theory for corporate entities.
In 1977, however, the Supreme Court in Shaffer v. Heitner[xxi] held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in [International Shoe] and its progeny.”[xxii] Thus, “[t]o the extent that prior decisions [decided on the rationales of Pennoyer were] inconsistent with [International Shoe], they [were] overruled.”[xxiii]
Yet, even after Shaffer, some vestiges of Pennoyer’s“territorial” jurisdiction remained viable. For example, in Burnham v. Superior Court,[xxiv] the Court upheld jurisdiction over defendants based on in-State service of process, finding that physical presence was one of many “traditional[]” bases for personal jurisdiction.[xxv] Justice Scalia observed that so-called “tag” jurisdiction was widely accepted when the Fourteenth Amendment was ratified.[xxvi] And Justice Brennan agreed that “history is an important factor in establishing whether a jurisdictional rule satisfies due process requirements.”[xxvii]
In the last eleven years, the Supreme Court has addressed the scope of general jurisdiction three times. On all three occasions, it has found general jurisdiction lacking. In Goodyear, the Supreme Court emphasized that a State court may exercise general jurisdiction only when the defendant is “essentially at home” there.[xxviii] Three years later in Daimler, the Court clarified that only a limited “set of affiliations with a forum” will expose a defendant to general jurisdiction there.[xxix] For corporations, the “paradigm” forums are their places of incorporation and principal place of business.[xxx] Though the Court left open “the possibility that in an exceptional case,”[xxxi] such as Perkins v. Benguet Mining Co.,[xxxii] a corporation might also be “at home” elsewhere, it has yet to find such a case.[xxxiii]
Background of Mallory v. Norfolk Southern Railway Co.
Against that backdrop, we turn to the facts of Mallory. There, the plaintiff, a Virginia resident, worked for Norfolk Southern Railway Co. (“Norfolk Southern”) from 1988 until 2005. Norfolk Southern is a national transportation company incorporated and headquartered in Virginia. During Mallory’s employment, he worked on railways in Virginia and Ohio.
Mallory was diagnosed with colon cancer in 2016. He brought suit against Norfolk Southern in the Philadelphia County Court of Common Pleas, alleging claims under the Federal Employer’s Liability Act (“FELA”). At bottom, Mallory argues he was exposed to harmful carcinogens and toxic chemicals while working for the company, which allegedly failed to provide him with a safe workplace. That said, he does not assert that he suffered any occupational exposures in Pennsylvania. Nor did he receive his diagnosis or any treatment for his cancer there.
Still, Mallory maintains that the Pennsylvania courts have personal jurisdiction over Norfolk Southern because of the State’s foreign entity registration and long-arm statutes. Pennsylvania’s registration statute provides, in part, that foreign entities “may not do business” in Pennsylvania “until [they] register” with the Secretary of the Commonwealth.[xxxiv] The long-arm statute expressly provides that a State court may exercise “general personal jurisdiction” based on “qualification [or registration] as a foreign corporation.”[xxxv] Complying with these provisions, Norfolk Southern registered to conduct business in Pennsylvania, which Mallory argues means that it has consented to general jurisdiction there. He also suggests that Norfolk Southern has substantial contacts with the State, as evidenced by the more-than 2,000 miles of railway it maintains there.
The trial court found Norfolk Southern’s registration and various contacts insufficient and dismissed the suit for lack of personal jurisdiction. The Supreme Court of Pennsylvania affirmed, emphasizing the modern trend of general jurisdiction—i.e., that State courts may only exercise it over corporations when they are “at home” there—and observing that requiring a company to involuntarily consent to general jurisdiction to conduct in-state business would impose an unconstitutional condition.
Mallory timely appealed and then, the Supreme Court granted certiorari.[xxxvi]
The Parties’ Arguments
After Mallory and Norfolk Southern filed briefs with the Court, the Office of the Solicitor General for the United States filed an amicus brief in support of Norfolk Southern. The Solicitor General also moved for leave to participate in oral argument, which the Court granted. Unsurprisingly, the stark contrasts between Mallory’s position and those of Norfolk Southern and the Solicitor General are immediately apparent from their briefs.
a. Mallory’s Argument
Relying on the Justices’ reasoning in Burnham, Mallory first argues that Pennsylvania’s corporate registration statute is constitutional under the original interpretation of the Due Process Clause. He explains “[i]n the years before and immediately after the ratification of the Fourteenth Amendment in 1868, every State in the Union had a statute requiring out-of-state corporations to consent to personal jurisdiction to which they otherwise would not be subject.”[xxxvii] Indeed, according to Mallory, “Congress enacted an analogous federal statute in 1867, mere months after Congress proposed the Fourteenth Amendment for ratification by the States.”[xxxviii] “State courts routinely applied these statutes,” as did the Supreme Court “in dozens of cases.”[xxxix] Thus, Mallory asserts, consent-by-registration has historically qualified as “voluntary, operative consent for purposes of the Fourteenth Amendment’s Due Process Clause.”[xl]
Mallory also relies on Pennsylvania Fire, emphasizing that neither International Shoe nor “itsprogeny undermined that precedent.”[xli] Instead, he maintains, “[t]hose cases established an additional basis for jurisdiction over out-of-state defendants: sufficient contacts between the defendant and the State. They expressly declined to address—and therefore never altered the standards governing—when consent to jurisdiction is constitutionally valid.”[xlii]
Finally, Mallory argues that Pennsylvania’s statutes do not violate the doctrine of “unconstitutional conditions” —which prevents governments from conditioning receipt of a benefit on the waiver of a constitutionally protected right. Mallory suggests that the Supreme Court has recognized that the doctrine does not apply to corporate registration statutes such as the one at issue. He also argues that “[e]xpanding the doctrine to apply here would destabilize this Court’s jurisprudence in many contexts and would require it to overrule its decisions in Burnham and Pennsylvania Fire,” a dubious proposition under the Court’s stare decisis precedents.[xliii]
b. Norfolk Southern’s Argument
Unsurprisingly, Norfolk Southern takes a different view. The company argues that Pennsylvania’s long-arm and corporate registration statutes have nothing to do with consent because they are mandatory. According to Norfolk Southern, “[r]egistration jurisdiction is unlike any form of consent this Court’s modern cases recognize, none of which involves a state-mandated submission to jurisdiction in all future cases.”[xliv] Indeed, “if consent could be implied whenever a party voluntarily took a step that a long-arm statute deems a basis for jurisdiction, consent would always exist.”[xlv]
The company also argues that Pennsylvania’s statutes violate basic personal jurisdiction principles, regardless of consent. First, “[a]llowing every state to assert general jurisdiction over every corporation doing business there would gut the protections Goodyear and Daimler recognized.”[xlvi] Norfolk Southern also argues consent-by-registration jurisdiction would create serious interstate-federalism “problems by letting states seize jurisdiction over suits in which other states have far greater interests.”[xlvii]
Norfolk Southern further notes, “Pennsylvania’s regime independently creates an unconstitutional condition” by “require[ing] corporations to either avoid Pennsylvania altogether, or choose between (a) forfeiting their due-process protections against suit and (b) breaking state law and giving up their right to access the courts.”[xlviii] “As a federally regulated interstate railroad,” Norfolk Southern observes, it “cannot choose to avoid Pennsylvania.”[xlix]
Finally, the company argues that Mallory cannot rely on Pennsylvania Fire because the Court has long-since abandoned the legal framework underlying its reasoning. In sum, according to Norfolk Southern, Mallory is invoking “as ‘controlling’ the Pennoyer-era decision,” which no longer remains viable after Goodyear and Daimler.”[l]
c. The Solicitor General’s Argument
Supporting Norfolk Southern, the Solicitor General begins her brief by explaining that the United States has a substantial interest in this case because of the potential impact it could have on the country’s diplomatic relations and foreign trade.[li] Although the parties are domestic litigants, the Solicitor General observes that “the theory of [consent-by-registration] jurisdiction asserted here would allow state courts to hear cases against foreign defendants based on foreign conduct.” Additionally, the United States has an interest in distinguishing the federal statutes relied on by Mallory and the Pennsylvania statute here.[lii]
The Solicitor General presents two primary challenges to Pennsylvania’s statutory scheme. First, she argues that the statutes conflict with the Supreme Court’s decisions in Goodyear and Daimler.[liii] Second, General Prelogar maintains that the statutes “subvert[] interstate federalism by reaching beyond Pennsylvania’s borders and allow[ing] state courts to hear cases in which Pennsylvania has no legitimate interest.”[liv] In doing so, they “pose risks to international comity by allowing state courts to hear cases against foreign defendants arising out of occurrences in foreign countries. [They] impose unfair burdens on defendants. And [they] serve no legitimate countervailing interest of the forum State or of plaintiffs.”[lv]
According to the Solicitor General, Mallory’s arguments also lack merit because he relies on principles that have long been repudiated by the Court under the “dormant Commerce Clause.”[lvi] She notes that modern dormant commerce precedent bars States from enacting laws that exclude foreign entities, which Pennsylvania’s statutes effectively do absent forced “consent.” She also takes great care to distinguish Mallory’s analysis of “consent” statutes from the Nineteenth Century from the ones at issue.[lvii]
The Solicitor General concluded by reminding the Court of the case’s scope —considering the Fourteenth Amendment’s limits on State courts’ exercise general jurisdiction —rather than whether similar limits would constrain federal jurisdictional statutes or the validity of consent jurisdiction.
****
As with most cases before the Supreme Court, the Parties and Solicitor General were not alone in offering their views. The American Association for Justice, Pennsylvania Association for Justice, Academy of Rail Labor Attorneys, Center for Auto Safety, citizens pursuing Anti-Terrorism Act claims, and the American Association for Justice, among others, filed briefs in support of Mallory’s argument.
The United States Chamber of Commerce, Pennsylvania Coalition for Civil Justice Reform, DRI Center for Law and Public Policy, the International Association of Defense Counsel, the National Associations of Manufacturers and Product Liability Advisory Council, Inc., along with the States of Virginia, Alaska, Arkansas, Idaho, Indiana, Montana, New Hampshire, and South Carolina, all submitted amicus briefs in support of Norfolk Southern.
Oral Argument and the Justices’ Reactions
This case is unlikely to yield a unanimous decision. Based on the Justices’ questions during the almost two-hour argument, the Court appears divided on both how to resolve the principle question before it and the most suitable path for doing so. Therefore, like many of the Court’s most difficult personal jurisdiction cases, the Justices likely will be unable to untie this Gordian Knot into neat threads.
Arguing for Mallory, Ashley Keller presented a cogent thesis steeped in “history, tradition, and precedent,” emphasizing that the principles of originalism were on his client’s side. Several of the Justices, however, appeared to disagree. Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh each suggested that the Court had already effectively—if not directly—overruled Pennsylvania Fire (or at the very least would have to here) and emphasized that recent general jurisdiction cases appeared to foreclose Mallory’s Due Process arguments. As Justice Kagan put it, consent-by-registration came about of necessity under Pennoyer, but International Shoe had obviated the need for those statutes. Keller responded by observing that there was no difference between filing a piece of paper to incorporate—which Daimler and Goodyear affirmed was sufficient to establish general jurisdiction—and filing a paper to register as a foreign company. In short, the “paperwork matters,” and the Court should not draw arbitrary or formalistic lines in determining where corporations are “at home.”
Justice Alito too expressed concern that adopting Mallory’s construction would have implications beyond national and international corporations, effectively forcing small businesses to choose between expanding their operations and consenting to general jurisdiction across the country—an economically unfeasible option. And Justice Kavanaugh acknowledged that ruling in Mallory’s favor would mean that every state could enact similar consent-by-registration statutes, effectively making businesses “at home” everywhere. Keller agreed that these could be potential outcomes of the Court’s decision but emphasized principles of federalism, and that it was the States’ prerogative to decide how best to proceed. In other words, the States were free to put the choice to the companies who, in turn, could decide whether they could afford to conduct their business there.
Justice Gorsuch, Justice Jackson, and Justice Sotomayor, however, seemed to view the notion of consent as surviving International Shoe and cases applying it as a viable basis for exerting general jurisdiction. Justice Gorsuch emphasized that corporations do not get special treatment under the Due Process Clause, to which Keller aptly responded that the Constitution does not provide for “a higher grade of person . . . because they were birthed by filing a piece of paper in Virginia instead of by a mother in a hospital.” Justice Jackson similarly observed that she could see no difference between Pennsylvania’s statutes and negotiations between private parties, which the Court has upheld as forming valid consent to jurisdiction. Justice Sotomayor made clear from the bench that she agreed with Mallory’s Due Process argument, observing that she was not going to “come around” from her dissent in Goodyear.
Carter Phillips, arguing for Norfolk Southern, faced an equally hot bench. He began his argument by reiterating the unique facts here, while also emphasizing that Pennsylvania’s statutory consent-by-registration scheme stands alone. In doing so, he observed that no State—including Pennsylvania—had filed a brief attempting to defend it.
Several Justices appeared receptive to Norfolk Southern’s unconstitutional conditions argument—specifically, the notion that Pennsylvania’s statutes could not be read to require foreign corporations to willingly consent to general jurisdiction. Though Phillips acknowledged that corporations could, of course, consent by declining to raise the defense where available, he maintained that States could not extort consent, which is what Pennsylvania’s statutes effectively did here. Justice Kagan seemed to agree, suggesting that simply filing a piece of paper—which does not contain express consent language—was ineffective for establishing general jurisdiction. Justice Alito, Justice Barrett, and Justice Kavanaugh similarly appeared hesitant to declare blanket registration statutes as proper vehicles for extracting consent. Phillips agreed and also pointed out that consent was especially implausible here because Norfolk Southern as a railway operator had no choice whether to operate in Pennsylvania, considering the Government’s requirement that it operate across State lines.
Justice Thomas also weighed in on this point, though he was more concerned with whether Norfolk Southern had an antecedent right that it was being forced to waive in the first instance. To that point, Phillips emphasized that under Daimler and Goodyear, corporations have the right not to be coerced to appear before a court exercising general jurisdiction anywhere other than their “home.”
Arguing from the Solicitor General’s Office, Curtis Gannon stressed the significance of the Court’s ruling here, observing that both a federal statute was at issue by implication, and that ruling in Mallory’s favor could disrupt international comity by unleashing a “jurisdictional free-for-all.”
Implications of the Court’s Decision
As oral argument made apparent, to say that the Court’s ruling in Mallory might be paradigm-shifting is not hyperbole. Every State in the Country has a corporate registration statute. If the Court upholds Pennsylvania’s here—thereby affirming the continued application of Pennsylvania Fire’s consent-by-registration theory—we will likely see the end of the general/specific personal jurisdiction divide as we know it. As Justice Kavanaugh observed, every State will be free to either interpret existing registration statutes or enact new ones requiring corporate entities to consent to all-purpose jurisdiction in exchange for the privilege of conducting business there.[lviii] That would relegate national corporations to being “at home” everywhere, and could be haled into any court across the country for any act, no matter where it occurred. Specific jurisdiction would no longer serve any function in our increasingly national and global economy. This “jurisdictional free-for-all” could lead to rampant venue and forum-shopping. And if taken to its logical conclusion, litigants could see the end of International Shoe and cases applying its minimum-contacts test.
Should the Court find for Norfolk Southern—as it appears poised to do and many other courts already have under similar circumstances[lix]—it appears likely to either directly overrule Pennsylvania Fire or hold that it already has.[lx] As the Second Circuit found in Brown v. Lockheed Martin Corp., the failure to do so would be to undo the last eleven years of the Court’s general jurisdiction jurisprudence:
If mere registration and the accompanying appointment of an in-state agent—without an express consent to general jurisdiction—nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and Daimler’s ruling would be robbed of meaning by a back-door thief.[lxi]
Similarly, the Court could leave Pennsylvania Fire intact, while sharply limiting its reach, by requiring such provisions to include language expressly conditioning assent to general jurisdiction upon registration.[lxii] Regardless, if the Court adopts this course, we could see the demise of one of the last relics of Pennoyer’s “territorial” approach to jurisdiction.[lxiii] The Court would continue to solidify its position in favor of a narrow view of general jurisdiction for corporate defendants.
Or the Court could forgo the Due Process Clause analysis altogether and strike down Pennsylvania’s statutes under the unconstitutional conditions doctrine. This appeared to be a tempting option for several of the Justices, who were skeptical that the Pennsylvania statutes at issue amounted to effective “consent” and who also expressed a desire to clarify the doctrine’s application.
Finally, the Court could vacate the lower court’s decision under the Dormant Commerce Clause and remand for further proceedings.[lxiv] Neither party briefed this issue. And the lower courts did not consider it. That said, the Court seems unlikely to take this approach given the Justices’ questions during oral argument.
Conclusion
Regardless of the outcome, the Court will be resolving a deep split and bring unanimity among the States. Attorneys will be left to finding new ways to expand or contract personal jurisdiction to best serve their clients’ needs. While we await the Court’s decision, we note that the public at large—understandably— knows and cares little about procedural and jurisdictional matters. Long gone are the days where public figures could rally folks to the voting box based on these largely academic questions of law.[lxv] But plaintiffs, their attorneys, and the corporate entities whom they are suing care. As do the Justices. The rest of us should too.
[i] 571 U.S. 117 (2014).
[ii] 564 U.S. 915 (2011).
[iii] 95 U.S. 714 (1878).
[iv] 243 U.S. 93 (1917).
[v] Daimler, 571 U.S. at 139; Goodyear, 564 U.S. at 919.
[vi] Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).
[vii] Ford Motor Co. v. Mont. Eighth Judicial Dist. Ct., 141 S. Ct. 1017, 1024 (2021); Goodyear, 564 U.S. at 919.
[viii] Ford, 141 S. Ct. at 1024.
[ix] Pennoyer, 95 U.S.at 733–34.
[x] Ford, 141 S. Ct. at 1037 (Gorsuch, J., concurring).
[xi] Id.
[xii] 243 U.S. at 94.
[xiii] Id.
[xiv] Id. at 94–95.
[xv] Id.
[xvi] Cooper Tire & Rubber Co. v. McCall, 863 S.E.2d 81, 85 (Ga. 2021).
[xvii] 326 U.S. 310 (1945).
[xviii] Id. at 316.
[xix] Id.
[xx] Id. at 316, 318.
[xxi] 433 U.S. 186 (1977).
[xxii] Id. at 212; see also id. at 202–03 (abandoning “the fiction of implied consent to service on the part of a foreign corporation” in favor of “ascertain[ing] what dealings make it just to subject a foreign corporation to local suit”).
[xxiii] Id at 212.; see also Daimler, 517 U.S. at 138 n.18 (stating that pre-International Shoe cases “were decided in the era dominated by Pennoyer’s territorial thinking [and] should not attract heavy reliance today”).
[xxiv] 495 U.S. 604 (1990).
[xxv] Id. at 609 (Scalia, J.) (plurality op.); see also Burger King Corp. v. Rudzewicz, 471 U.S> 462, 472 n.14 (1985) (observing that parties may “stipulate in advance to submit their controversies for resolution within a particular jurisdiction).
[xxvi] Burnham, 495 U.S. at 628.
[xxvii] Id. at 629 (Brennan, J., concurring).
[xxviii] 564 U.S. at 919.
[xxix] 571 U.S. at 139.
[xxx] Id.
[xxxi] Daimler, 571 U.S. at 139 n. 19.
[xxxii] 342 U.S. 437 (1952).
[xxxiii] See BNSF Railway Co. v. Tyrell, 137 S. Ct. 1549, 1555, 1559 (2017) (holding that a Montana court lacked general jurisdiction in a suit brought by an out-of-State plaintiff against an out-of-State railroad based on out-of-State injuries, even though the railroad owned more than 2000 miles of track and employed more than 2000 workers in Montana).
[xxxiv] 15 Pa. Cons. Stat. Ann. § 411 (2019).
[xxxv] 42 Pa. Const. Stat. Ann. § 5301(a)(2)(i) (2019).
[xxxvi] Mallory v. Norfolk S. Ry., 142 S. Ct. 2646 (2022).
[xxxvii] Brief of Petitioner at 8, Mallory v. Norfolk Southern Railway Co., U.S. (No. 21-1168).
[xxxviii] Id. (citing 18 U.S.C. § 2334(e) (2019).
[xxxix] Id.
[xl] Id.
[xli] Id. at 9.
[xlii] Id.
[xliii] Id.
[xliv] Brief of Respondent at 7, Mallory v. Norfolk Southern Railway Co., U.S. (No. 21-1168).
[xlv] Id.
[xlvi] Id. at 8.
[xlvii] Id.
[xlviii] Id.
[xlix] Id. at 9.
[l] Id.
[li] Brief for the United States as Amici Curiae Supporting Respondent, Mallory v. Norfolk Southern Railway Co., U.S. (No. 21-1168) at 1.
[lii] Id.
[liii] Id. at 5.
[liv] Id.
[lv] Id.
[lvi] Id.; see also Brief for Professor Stephen E. Sachs Supporting Neither Party, Mallory v. Norfolk Southern Railway Co., U.S. (No. 21-1168).
[lvii] Brief for the United States as Amici Curiae Supporting Respondent, Mallory v. Norfolk Southern Railway Co., U.S. (No. 21-1168) at 5.
[lviii] See Am. Dairy Queen Corp. v. W.B. Mason Co., No. 18-CV-693 (SRN/ECW), 2019 WL 1767409, at *2 (D. Minn. Apr. 22, 2019) (holding that consent by registration remains an independent basis for personal jurisdiction, though questioning its continued vitality in light of Daimler and Goodyear); Otsuka Pharm. Co. v. Mylan Inc., 106 F. Supp. 3d 456, 469 (D.N.J. 2015) (“[D]esignation of an in-state agent for service of process in accordance with a state registration statute may constitute consent to personal jurisdiction, if supported by the breadth of the statute’s text or interpretation.”); Acorda Therapeutics, Inc. v. Mylan Pharm. Inc., 78 F. Supp. 3d 572, 588 (D. Del. 2015) (“Daimler does not eliminate consent as a basis for a state to establish general jurisdiction over a corporation which has appointed an agent for service of process sin that state, as is required as part of registering to do business in that state.”); Beach v. Citigroup Alt. Invs. LLC, 2014 WL 904650, at *6 (S.D.N.Y. Mar. 7, 2014) (“Notwithstanding these limitations, a corporation may consent to jurisdiction in New York under [New York’s general jurisdiction statute[ by registering as a foreign corporation and designating a local agent.”); Bailen v. Air & Liquid Sys. Corp., No. 190318/12, 2014 WL 3885949, at *5 (S. Ct. N.Y. Cnty. 2014) (“[A] New York court may exercise general personal jurisdiction over a corporation, regardless of whether it is ‘at home’ in New York, so long as it is registered to do business here . . . and designates a local agent for service of process.”).
[lix] See, e.g., Metro. Grp. Prop. & Cas. Ins. Co. v. Electrolux Home Prod., Inc., No. 17CV11865PGSDEA, 2018 WL 2422023, at *2 (D.N.J. May 29, 2018) (“[T]o conclude that a corporation consents to personal jurisdiction based solely on registration would be inconsistent with Daimler[.]”); Howe v. Samsung Electronics Am., Inc., No. 1:16cv386, 2018 WL 2212982, at *5 (N.D. Fla. Jan. 5, 2018) holding that the “requirement to designate a registered agent is not intended to—and in any event under the Due Process Clause could not—subject a corporation to an action over which a state’s courts cannot properly exercise jurisdiction. Were it otherwise, the Supreme Court’s decisions recognizing limits on personal jurisdiction over out-of-state corporations would be nearly meaningless.”); Keeley v. Pfizer Inc., Civ. Act. No. 15-583, 2015 WL 3999488, at *4 (E.D. Mo. July 1, 2015) (“Plaintiffs contend Defendant has consented to jurisdiction in Missouri because Defendant is registered to do business in Missouri. . . This result is contrary to the holding in Daimler that merely doing business in a state is not enough to establish general jurisdiction . . . [F]inding a defendant consents to jurisdiction by registering to do business in a state or maintaining a registered agent does not [satisfy due process].”); Freedman v. Suntrust Banks, Inc., 139 F. Supp.3d 271, 279 (D.D.C. 2015) (corporate registration did not establish that “Defendants are any more ‘at home’ in the District of Columbia than they are ‘at home’ in other states”); Chavez v. Bridgestone Ams. Tire Ops., LLC, 503 P.3d 332, 339 (N. Mex. 2021) (finding “[t]he consent by registration theory of personal jurisdiction . . . is a relic of the now-discarded Pennoyer . . . era of personal jurisdiction jurisprudence”); Lanham v. BNSF Railway Co., 939 N.W.2d 363, 371 (Neb. 2020) (finding that “consent by registration would permit a corporation to be subject to general jurisdiction in every state in which it does business,” which would contravene the limits prescribed in Goodyear and Daimler); Genuine Parts Co. v. Cepec, 137 A.3d 123, 132 (Del. 2016) (finding consent by registration unconstitutional and noting that “two recent U.S. Supreme Court decisions, Goodyear and Daimler, made a major shift in our nation’s personal jurisdiction jurisprudence—a shift that undermines the key foundation upon which prior federal cases like [Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 170, 175 (1939)] and Pennsylvania Fire relied.”).
[lx] See Cooper Tire, 863 S.E.2d at 90 (upholding consent by registration “[u]nless and until the United States Supreme Court overrules Pennsylvania Fire”).
[lxi] 814 F.3d 619 (2d Cir. 2016).
[lxii] Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 135–36 (4th Cir. 2020) (holding that under Pennsylvania Fire, “obtaining the necessary certification to conduct business in a given state amounts to consent to general jurisdiction in that state only if that condition is explicit in the statute of the state courts have interpreted the statute as imposing that condition,” but “South Carolina law does not make consent to general jurisdiction a consequence of obtaining a certificate of authority to transact business”); Waite v. All Acquisition Corp., 901 F.3d 1307, 1320-21 (11th Cir. 2018) (holding that Florida law did not establish hat registration to do business and appointment of an agent for service of process amounted to consent to general jurisdiction); Gulf Coast Bank & Trust Co. v. Designed Conveyor Sys., L.L.C., 717 F. App’x 394, 397–98 (5th Cir. 2017) (“This case lacks what Pennsylvania Fire had: a clear statement from the state court construing the statute to require consent.”).
[lxiii] See Martinez v. Aero Caribbean, 764 F.3d 1062, 1064 (9th Cir. 2014) (holding that “tag jurisdiction” does not apply to service of process on a corporation’s officer within the forum state so as to create general personal jurisdiction over the corporation).
[lxiv] Brief for Professor Stephen E. Sachs Supporting Neither Party, Mallory v. Norfolk Southern Railway Co., U.S. (No. 21-1168), at 1 (citing U.S. Const. art. I, § 8).
[lxv] See Chisholm v. Georgia, 2 U.S. 419 (1793); U.S. Const. am. XI.
