We celebrated National Cybersecurity Awareness Month a few weeks ago by bringing you the FDA’s newly published Medical Device Cybersecurity Regional Incident Preparedness and Response Playbook, with a promise to cover the Agency’s promised update on its Guidance for Content of Premarket Submissions for Management of Cybersecurity in Medical Devices, which was first published in 2014.

Well, the Agency has now published the Draft Guidance (you can review it here), and it is really interesting for a few reasons.  First, the FDA continues to view medical device cybersecurity risks through the same lens as it views any other risk.  That is to say, treatment with any medical device presents potential risks, and premarket submissions for connected medical devices should permit analysis of cybersecurity risks compared against the device’s benefits.  Second, the Draft Guidance generally follows the philosophy and framework set forth in the FDA’s current guidance, but places considerably greater flesh on the bone.  Third, the Draft Guidance places a much greater emphasis on medical device warnings, including suggesting the inclusion of a long list of detailed information—so much information that we wonder about usefulness and feasibility.

So what does the Draft Guidance say?  The theme is that the increasing use of connected medical devices and portable media in medical devices makes effective cybersecurity more important than ever to ensure device functionality and safety.  The Draft Guidance’s mission is clear:  “Effective cybersecurity management is intended to decrease the risk of patient harm by reducing device exploitability which can result in in intentional or unintentional compromise of device safety and essential performance.”  (Draft Guidance, at p.3)  “Intentional or unintentional.”  In other words, we are talking here not only about bad actors and malicious attacks, but also accidents and other situations where no harm to a device’s function was intended at all.

One new feature is the creation of two tiers of medical devices:  A device is “Tier 1, Higher Cybersecurity Risk” if (1) the device is capable of connecting to another medical or non-medical product, or to a network, or to the Internet; AND (2) a cybersecurity incident affecting the device could directly result in patient harm to multiple patients.  All other devices are “Tier 2, Standard Cybersecurity Risk.”  (Id. at 10)  The catch-all nature of Tier 2 seems odd at first blush because it would appear to include devices for which there is no conceivable cybersecurity risk, such as orthopedic implants.  Also note that these tiers cut across the FDA’s existing statutory device classifications, such that a Tier 1 device could be Class II or Class III device.  They are separate criteria.  (Id.)

The consequence of falling into Tier 1 is that the Draft Guidance calls for considerably more exacting information in premarket submissions.  More specifically, premarket submissions for Tier 1 devices should “include documentation demonstrating how the device design and risk assessment” incorporate certain design controls that accomplish the following:

  • Identify and Protect Device Assets and Functionality – The focus here is on the design of “trustworthy” devices and the presentation of documentation demonstrating “trustworthiness.” A trustworthy device should prevent unauthorized use through sufficient authentication and encryption; should ensure the trustworthiness of content by maintaining “code, data, and execution integrity” through such measures as software/firmware updates and enabling secure data transfer; and should maintain confidentiality.  ( at 11-16)
  • Detect, Respond, Recover – As the Draft Guidance puts it, “appropriate design should anticipate the need to detect and respond to dynamic cybersecurity risks.” This includes designing the device to detect cybersecurity events promptly.  It also includes designing the device to respond to and contain the impact of cybersecurity incidents and to recover its capabilities.  This would be though such measure as routine security updates and patches, systems to detect and log security compromises, features that protect critical functionality, and measures for retention and recovery of system configurations.  It also includes something called a “CBOM”—a Cybersecurity Bill of Materials, essentially a list of hardware and software components that are or could become susceptible to vulnerabilities.  ( at 16-18)

Perhaps the most interesting part of the Draft Guidance is the recommendation for device labeling.  As product liability litigators, medical device labeling is near and dear to our hearts because a manufacturer’s potential liability often depends on the adequacy of the risk information and instructions for use.

The FDA seems to agree that device labeling is important.  After citing the governing statutes and regulations, the Agency counsels that “when drafting labeling for inclusion in a premarket submissions, a manufacturer should consider all applicable labeling requirements and how informing users through labeling may be an effective way to manage cybersecurity risks.”  (Id. at 18-19)  The Draft Guidance then lists 14 separate factors that it recommends for inclusion in the labeling.  We paraphrase them below not because we expect you to study them, but more so you can get a sense of how exacting these recommendations could be.  Here goes:

  • Device instructions and product specifications related to recommended cybersecurity controls appropriate for the intended use environment;
  • A description of the device features that protect critical functionality;
  • A description of backup and restore features;
  • Specific guidance to users regarding supporting infrastructure requirements;
  • A description of how the device is or can be hardened using secure configuration;
  • A list of network ports and other interfaces that are expected to receive and/or send data, and a description of port functionality and whether the ports are incoming or outgoing;
  • A description of systematic procedures for authorized users to download version-identifiable software and firmware;
  • A description of how the design enables the device to announce when anomalous conditions are detected (e., security events);
  • A description of how forensic evidence is captured, including but not limited to any log files;
  • A description of the methods for retention and recovery of device configuration;
  • Sufficiently detailed system diagrams for end users;
  • “A CBOM including but not limited to a list of commercial, open source, and off-the-shelf software and hardware components to enable device users . . . to effectively manage their assets, to understand the potential impact of identified vulnerabilities to the device (and the connected system), and to deploy countermeasures to maintain the device’s essential performance”;
  • Where appropriate, technical instructions to permit secure network deployment and servicing, and instructions on how to respond upon detection of a cybersecurity vulnerability or incident; and
  • Information, if known, concerning device cybersecurity end of support, e., the time when the manufacturer may no longer be able to reasonably provide software patches and updates.

We support providing adequate information to device users, and we doubly support taking medical device cybersecurity seriously.  These recommendations, however, raise several questions.  For one thing, who is the intended audience?  The learned intermediary doctrine in most every state holds that medical device warnings are for the prescribing physicians—and no one else.  Is this information to be written for physicians, or IT professionals, or even patients?  We don’t know.

We also wonder about whether it is feasible to provide all this information, or even useful.  Maybe it would be both, or maybe neither.  But we think it is fair to ask whether providing “sufficiently detailed system diagrams” and lists of “commercial, open source, and off-the-shelf software and hardware components” is the most helpful information for protecting patient health and safety.  What is a “CBOM”?  We also wonder how the adequacy of this information would be judged.  Unlike medical risk information, this information is beyond what most physicians (the learned intermediaries) would readily appreciate.  In the so-far-extremely-unlikely event that a cybersecurity incident results in harm to a patient, will we have a new category of experts to depose?

To round it out, the Draft Guidance recommends including design documentation and risk management documentation that demonstrates device trustworthiness and the design’s connection to “threat models, clinical hazards, mitigations, and testing.”  (Id. at 21-22)

The above questions and more can be presented to the regulators as they consider the Draft Guidance and put it in final form.  Comments and suggestions are currently due sometime next March, although these deadlines tend to slip.  We will eagerly see what people have to say.  Stay tuned.

Today we have another guest post by long-time friend of the blog, Dick Dean, and his colleague at Tucker, Ellis, Mike Ruttinger.  Regular readers will recall, that right after Sikkelee v. Precision Airmotive Corp., ___ F.3d ___, 2018 WL 5289702 (3d. Cir. Oct. 25, 2018), was decided, we blogged about the aspect of that decision that we thought was most directly relevant to drug/device litigation – the court’s rejection of tort claims based on failure to make reports to government agencies.  We briefly mentioned the remainder of the Third Circuit’s decision (which was actually by far the lengthier discussion), but didn’t spend much time on it.  In this post, Dick and Mike rectify that oversight.  As always, our guest bloggers deserve 100% of the credit (and any blame) for their discussion.


The Third Circuit is having a bad year on preemption.  Its decision in In re Fosamax Products Liab. Lit., 852 F.3d 268 (3rd Cir. 2017), in which it held that it is for juries and not judges to determine whether there is “clear evidence” sufficient to meet the Wyeth v. Levine, 555 U.S. 555 (2009), standard for preemption in a failure-to-warn case, was accepted for review by the Supreme Court and is widely expected to be reversed.  [Editorial note – Fosamax ended up tied for the worst decision of 2017.  We hope to be rid of it in 2018.]  And now the Circuit has injected needless confusion into the test for impossibility preemption set forth in Levine’s follow-up case, PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).  Mensing is familiar to many as the case that clarified the rule for determining when an impossible-to-resolve conflict between federal and state law preempts plaintiffs’ claims.  If the change the plaintiff seeks is one that requires prior approval or federal permission, then the claim is preempted.  Id. at 620 (“The question for ‘impossibility’ is whether the private party could independently do under federal law what state law requires of it.”) (emphasis added).  [Editorial note:  We call that the “independence principle.”]

The recent Third Circuit decision, Sikkelee v. Precision Airmotive Corp., No. 17-3006, 2018 WL 5289702, at *8 (3rd Cir. Oct. 25, 2018), is a wrongful-death case that originated from a 2005 airplane crash.  As the date suggests, it has been around for quite a while; this is the litigants’ second trip to the Third Circuit after a 2016 appeal [blogged about here] culminated in denial of a petition for certiorari and a remand for the Middle District of Pennsylvania to consider conflict preemption issues.  Specifically, the focus of Sikkelee became the design of the airplane carburetor.  The district court initially found the plaintiff’s defect claim to be barred by field preemption under the Federal Aviation Act because federal regulation of aviation is so extensive as to preempt the entire field of airplane design-related tort law.  Sikkelee v. Precision Airmotive Corp., 45 F. Supp. 3d 431 (M.D. Pa. 2014).  But the Third Circuit reversed that decision, suggesting that while field preemption does not apply, “the case law of the Supreme Court and our sister Circuits supports the application of traditional conflict preemption principles.”  Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 699 (3rd Cir. 2016).  Accordingly, the Third Circuit remanded with an opinion directing that the district court should consider the conflict preemption principles set forth in Mensing.

Given the Third Circuit’s lengthy discussion of Mensing in its 2016 opinion, what came next was quite a surprise.  The panel that issued the 2016 decision acknowledged the role that Mensing, as well as a subsequent decision, Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013), play in the conflict preemption analysis at length.  The court even honed in on the FAA’s “preapproval process for aircraft component part designs” as a key factor for the district court to consider in any conflict preemption analysis because the FAA would need to preapprove the alternate design that the plaintiff alleged as the basis for her lawsuit.  Sikkelee, 822 F.3d at 708 (“Thus, the reasoning of the Bartlett majority, 133 S. Ct. at 2473, 2480, and the consideration we must give to the FAA’s views under separation of powers principles, see Wyeth, 555 U.S. at 576-77, 129 S. Ct. 1187, lead us to conclude that the FAA’s preapproval process for aircraft component part designs must be accorded due weight under a conflict preemption analysis.”).  On remand, the district court followed the Third Circuit’s suggestion and found that the design-defect claim regarding the carburetor was indeed preempted because federal regulations required prior approval of the suggested design change.  Sikkelee v. AVCO Corporation, 268 F. Supp. 3d 660 (M.D. Pa. 2017).  But on October 25, that decision was reversed on appeal by a completely different panel of Third Circuit judges.  The new panel found no conflict preemption, applying the “clear evidence” test from Wyeth v. Levine rather than the Mensing prior approval test.  Specifically, the panel reasoned that “the nature of FAA regulations and Lycoming’s interactions with the FAA—including the changes it has made to its type certificate—demonstrate that Lycoming could have—indeed it had—adjusted its design.”  Sikkelee, 2018 WL 5289702 at *8.  For the defendant “to be entitled to an impossibility-preemption defense,” the court reasoned, “it must present ‘clear evidence that the [FAA] would not have approved a change.’”  Id.  Because it found evidence that the FAA would have permitted the change, the court held conflict preemption inapplicable.

The contrast between the Third Circuit’s two Sikkelee decisions is made only starker by the dissenting opinion filed by Judge Roth.  From the outset, Judge Roth notes that the majority erred by taking “a piecemeal approach to the Supreme Court’s impossibility preemption precedents.”  Id. at *13.  Put simply, Wyeth v. Levine cannot be read in a vacuum; for the Supreme Court’s trilogy of conflict preemption cases—Levine, Mensing, and Bartlett—to make sense, they must be read together.  This is not a novel position, but one spelled out by a wide variety of courts over the last five years.  Among the many to do so are Yates v. Ortho-McNeil-Janssen Pharmaceutical, Inc., 808 F.3d 281 (6th Cir. 2015), In re Celexa and Lexapro Marketing and Sales Practices Litigation, 779 F.3d 34 (1st Cir. 2015) (reading Wyeth and Mensing in combination), Utts v. Bristol-Myers Squibb Co., 226 F. Supp. 3d 166, 178-83 (S.D.N.Y. 2016), and—yes—the Third Circuit’s first Sikkelee decision, Sikkelee, 822 F.3d at 702-03 (reading Levine, Mensing, and Bartlett together to spell out different preemption rules for claims based on different regulatory scenarios).  The point, Judge Roth explained after reviewing the three decisions, is that:

When a manufacturer operating in a federally regulated industry has a means of altering its product independently and without prior agency approval . . . state-law claims against the manufacturer alleging a tortious failure to make those alterations ordinarily are not preempted; but, when federal regulations prohibit a manufacturer from altering its product without prior agency approval, state-law claims imposing a duty to make a different, safer product are preempted.

Sikkelee, 2018 WL 5289702 at *13.

Put another way, the fact that a defendant may have made changes in the past which were approved does not negate the fact that it still had to ask a federal agency for permission to make a change.  The fact that a party has to ask is dispositive, as the Supreme Court clarified in Mensing when it held that “[t]he question for ‘impossibility’ is whether the private party could independently do under federal law what state law requires of it.”  564 U.S. at 620.  Levine was simply the wrong framework because in Levine, it was undisputed that the brand drug-manufacturer could unilaterally do what the plaintiff alleged state law required.

In contrast with Levine, on which the majority relied, it was undisputed in Sikkelee that the design change would require prior approval.  The first Third Circuit panel expressly held that “the type certification process results in the FAA’s preapproval of particular specifications from which a manufacturer may not normally deviate without violating federal law.”  Sikkelee, 822 F.3d at 702.  The majority ignored that conclusion entirely.  Indeed, though parsing several of the applicable FAA regulations, the majority never addressed whether those regulations require prior approval of the requested change.  Instead, it short-circuited the inquiry by merely concluding that since the changes had been made subsequent to the accident, the prior approval element was meaningless.  Judge Roth, in dissent, was the only member of the panel to address the prior-approval issue and came to the same conclusion as the first Sikkelee panel—that prior approval was a necessary predicate to the design change.  And since prior approval was required, the case was more like Mensing than Levine, leaving no need to apply the clear-evidence standard.

The trilogy of Levine, Mensing, and Bartlett lay out a clear rule for conflict preemption—the same one summarized by Judge Roth.  If en banc review does not cure the Sikkelee opinion, the Third Circuit may find that Fosamax is not the last preemption decision it sends to the Supreme Court for review.

A couple of years ago we penned a paean to Indiana and its cultural and legal triumphs. Now that another chunk of our family has decided to relocate to that happy state, our thoughts returned to Indiana’s many virtues. Sure, there’s the Indy 500, the fabulous covered bridges of Parke County, the Benjamin Harrison home, and a couple of our favorite in-house lawyers. And now there’s In re Cook Medical, Inc., IVC Filters Mktng., Sales Practices & Prod. Liab. Lit., 2018 U.S. Dist. LEXIS 190177 (S.D. Ind. Nov. 7, 2018).

Maybe plaintiff-files-Daubert-motion isn’t quite man-bites-dog, but it’s still pretty rare. Plaintiffs are usually all about getting to the jury, no matter how raggedy the case. In fact, the more raggedy, the better. Consequently, plaintiffs devote considerably more time fending off Daubert challenges than mounting their own. Maybe there’s a reason for that. Maybe plaintiffs tend to put up hack experts, while defendants put up good ones. Maybe we’re biased. Okay, definitely we’re biased. But take a look at what happened in In re Cook.

The defendants in Cook offered the testimony of a mechanical and materials science engineer who opined that the IVC filter design was not defective and that its benefits outweighed its risks. The expert was well qualified. It’s not as if it was a close call. The defense expert had the appropriate degrees from Cal Berkeley. He also had been a general manager at a company that made IVC filters. Federal Rule of Evidence 702 requires that an expert be qualified by knowledge, skill, experience, training, or education. Note the “or.” This expert had it all. Not only was this expert qualified, he had done the work. He looked at MAUDE adverse event data, peer-reviewed literature, the company’s testing records, the design and engineering records, the opinions of other experts in the case, and fact depositions. That is, the defense expert in Cook did far more homework than virtually any plaintiff design expert we have encountered. We’re not sure we’ve ever deposed a plaintiff design expert who has actually read the design history file. Indeed, we’re pretty sure that most plaintiff experts do not know what a design history file is.

The plaintiff’s main beef with the defense design expert in In re Cook concerns the opinions regarding the device’s benefits and risks. The main benefit of an IVC filter is prevention of pulmonary embolisms. How can a mere engineer opine on medical issues? (Dear Engineering Nerds: Please do not write angry comments; we are using the “mere” word sarcastically. We have endless respect for engineers. We utter a prayer of thanks to them every time we drive across the Benjamin Franklin Bridge. At parties, we always get next to the engineers in case a game of Jenga breaks out.) The court has no problem answering this question: “a biomedical engineer … can testify about the benefits and ability of the Celect IVC filter to catch blood clots from a biomedical design and engineering perspective.” The plaintiffs were asking the wrong question. No surprise there.

Then the plaintiffs raised other wrong questions: (1) Why doesn’t the expert quantify the number of filters that actually prevented pulmonary embolisms? (2) Why does the engineer rely on adverse event data without knowing what percent of adverse events are reported? (3) How dare the expert rely on the defendant’s own studies? The Cook court is untroubled by these wrong questions, and supplies clear, easy, right answers: (1) Quantification goes to weight, not admissibility. (2) No one knows the true adverse event reporting rate, so it’s hard to fault the expert. Also, and again, this criticism might go to weight, but not admissibility. (3) The company’s data might not be perfect, but it looks like valid evidence. The data’s short-comings constitute yet another issue of weight, not admissibility. Finally, the expert relied on lots of other data besides the company’s. In short, tell it to the jury.

We’re still in favor of federal judges acting as stout gate-keepers when it comes to expert testimony. Junk science should be excluded. But when an expert is so well qualified and so well informed as the one in Cook, and when that expert applies reliable methods, there’s no reason to exclude anything. Rather, it’s time for Hoosier hospitality.

When it comes to medical device preemption, having Pre-Market Approval (“PMA”) is like being dealt pocket aces in Texas Hold’Em Poker.  It’s the strongest starting hand you can have; a 4:1 favorite over any other two card combo.  It means you’re starting in the power position.  Since the Supreme Court’s decision in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), manufacturers of PMA medical devices are in the power position in products liability litigation.  Very little slips by the double-edge sword of express and implied preemption in PMA cases.  The same can, and should be said for IDE cases as well.  And that’s what the Kentucky Court of Appeals said in Russell v. Johnson & Johnson, — S.W.2d –, 2018 WL 5851101 (Ky. Ct. App. Nov. 9, 2018).

Defendant manufactures medical catheters.  The catheter was approved by the FDA via the PMA process in 2004.  Id. at *1.  In 2015, the FDA approved use of the catheter under the Investigational Device Exemption (“IDE”) to the MDA which allowed the catheter to be used in a clinical trial to evaluate its safety in certain cardiac ablation procedures.  Plaintiff underwent a cardiac ablation procedure as part of the clinical trial in which defendant’s catheter was used.  Id.  After plaintiff’s procedure the catheter did receive full pre-market approval.  Id. at *4.

Plaintiff suffered complications during the procedure and subsequently filed suit alleging defendant was liable for strict liability, negligence, lack of informed consent, failure to warn, breach of warranties, fraud, and unjust enrichment.  Id. at *2.  Defendant moved to dismiss all claims on the grounds of preemption and the trial court, relying on Riegel, granted the motion.  Id.  Plaintiff later asked the court to set aside its ruling based on defendant’s voluntary recall of other catheters, but not the one used on plaintiff.  The court denied that motion.  Plaintiff appealed both rulings.

Not surprisingly, plaintiff’s primary argument was that the court should discount Riegel because at the time of plaintiff’s surgery, the device had not yet received pre-market approval.    Id. at *4.  But the court found the argument contradicted by numerous courts to have considered the issue.  Some courts find that timing of the grant of PMA to be immaterial.  Id.  While others find IDE approval to be synonymous with PMA.  Id.  This certainly follows the logic of Riegel.  Riegel adopted a two-step test for preemption and the first step is whether the FDA has established requirements applicable to the device.  Riegel concludes that a PMA does in fact establish such requirements.  Well, so does an IDE.

[b]ecause IDE devices are subject to a level of FDA oversight and control that is, for the purpose of a preemption analysis, identical to that governing PMA devices, the body of preemption law governing PMA devices applies equally to the IDE device at issue in this case.

Id. (citing Martin v. Telectronics Pacing Sys., Inc., 105 F.3d 1090 (6th Cir. 1997).

Thwarted by authorities from other jurisdictions on the issue, plaintiff next urged the court to rely on a Kentucky Supreme Court case decided before RiegelNiehoff v. Surgidev Corp., 950 S.W.2d 816 (Ky. 1997).  Id.  Niehoff rejected preemption in an IDE case relying on Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).  But as we all know, Lohr dealt with a device approved via the §510k “substantial equivalence” process.  As pointed out above, the IDE process is more analogous to the PMA process and therefore, in a post-Riegel world, Riegel is controlling.   In Niehoff, the manufacturer also stopped the clinical trial before the FDA considered its PMA application.  Id.  Whereas in Russell, the device was granted PMA just over one year after plaintiff’s procedure.  Id. at *5.

In deciding the preemption question in the current case, the court started its analysis with the clear cut statement that “there is no presumption against preemption” in an express preemption case.  Id.  After checking that box, the court looked at the device at issue and concluded that “approval after being subject to both the IDE and PMA processes, satisfies the first prong of Riegel.”  Id. at *6.  So, to survive preemption, plaintiff cannot be alleging a claim that is different or additional to FDA’s requirements regarding safety and effectiveness.  Id.  That means, plaintiff in his complaint must allege three things: “violation of a federal requirement; violation of an identical state violation; and a link between the federal violation and [plaintiff’s] injury.”  Id.  Plaintiff went 0 for 3.

The court could find no allegations of federal violations, or even a cite to a federal regulation.  No factual support for any alleged violation.  No allegations that his injury was caused by a federal violation.  All plaintiff did was allege the device was defective – “in other words, the FDA should have imposed more stringent requirements – an attack precisely prohibited by the MDA.”  Id. at *7.

Failure to allege a parallel violation required dismissal of plaintiff’s strict liability, negligence, failure to warn, and fraud claims.  Id. at *7, *8.    Plaintiff’s informed consent claim failed because plaintiff signed a detailed consent form that was approved by the FDA.  Any claim that the consent was inadequate would impose a different or additional requirement on the defendant.  Id. at *7.  Claims that the device breached warranties regarding safety and effectiveness “directly contradict the FDA’s conclusion that the catheter was safe and effective.”  Id. at *8. As would an unjust enrichment claim premised on a claim that plaintiff did not receive safe and effective medical care.  Id.  Finally, plaintiff failed to allege a parallel federal statute to the Kentucky Consumer Protection Act.  Id.  So, all of the claims were properly dismissed as preempted.  The appellate court also upheld the trial’s court’s decision that any attempt at amendment would be futile.  “Additional time would not have transformed [plaintiff’s] claims into parallel state claims.”  Id.

As for the motion to set aside the dismissal based on the recall, the court again upheld the trial court’s decision.  A final judgement can be set aside based on newly discovered evidence which could not have been learned via due diligence in time for a new trial.  Id. at *9.  But new evidence is not events that occur after entry of a final judgment – such as the recall here.  Id.  Moreover, the new evidence needs to be relevant.  The recall was of different catheters, not the one used in plaintiff’s procedure.  Id.  Next, the voluntary recall “negated neither federal preemption nor FDA approval.”  Id.  The FDA was aware of adverse events and of the recall, but did not withdraw its approval of the device.  And, a recall is not a presumption that FDA regulations have been violated.  A recall doesn’t turn a “preempted claim into a parallel cause of action.”  Id.

             No doubt defendant had pocket aces going into this appeal, but Jim Murdica and Kara Kapke from Barnes & Thornburg and Lori Hammond from Frost Brown Todd deserve a shout out for knowing when to go all in!

We’ve blogged several times about the Biomaterials Access Assurance Act of 1998, 21 U.S.C. §§1601-06.  In a nutshell, the BAAA provides suppliers of “raw materials and component parts” used in the manufacture of medical devices with a “Get Out of Litigation Free” card in most situations.  It allows manufacturers of “biomaterials” – defined as “a manufactured piece of an implant” or a “substance” that “has a generic use” and “may be used in an application other than an implant” – to remove themselves from product liability litigation before being forced to engage in expensive and time consuming discovery.  See 21 U.S.C. §1602(3, 8) (defining “raw material” and “component part”).

However, the BAAA is now twenty years old, and in light of the rapid technological advancement in the medical device field, could use some updating for the twenty-first century.

What Congress was trying to ensure in enacting the BAAA was that manufacturers of “raw materials and component parts [that] also are used in a variety of nonmedical products” remain willing to supply manufacturers of medical devices by removing the threat of litigation over the small quantity of those materials used by medical device manufacturers to make FDA-regulated products:

(5) because small quantities of the raw materials and component parts are used for medical devices, sales of raw materials and component parts for medical devices constitute an extremely small portion of the overall market for the raw materials and component parts;

(6) under the [FDCA] manufacturers of medical devices are required to demonstrate that the medical devices are safe and effective, including demonstrating that the products are properly designed and have adequate warnings or instructions;

(7) notwithstanding the fact that raw materials and component parts suppliers do not design, produce, or test a final medical device, the suppliers have been the subject of actions alleging inadequate–

(A) design and testing of medical devices manufactured with materials or parts supplied by the suppliers; or

(B) warnings related to the use of such medical devices;

(8) even though suppliers of raw materials and component parts have very rarely been held liable in such actions, such suppliers have ceased supplying certain raw materials and component parts for use in medical devices for a number of reasons, including concerns about the costs of such litigation;

(9) unless alternate sources of supply can be found, the unavailability of raw materials and component parts for medical devices will lead to unavailability of lifesaving and life-enhancing medical devices. . . .

Id. §§1601(5-8).

Back in 1998, few if any medical devices utilized computer software, and cloud computing did not exist.  Further, to the extent that software was used in medical devices twenty years ago, it was not “agnostic,” but rather invariably custom made for the particular device – in stark contrast with the widespread use of interoperable imaging and 3D printing technology (to name two) in current medical devices.  Not surprisingly, the protection of the 1998 BAAA was limited to physical materials.  “Component parts” are “manufactured piece[s].”  Id. §1602(3)(a).  A “raw material” is “a substance or product.”  Id. §1602(8).

Thus, our proposal here is simple.  In order for the BAAA to provide the scope of protection for suppliers of database agnostic software and platform agnostic storage capacity (and other types of interoperable computer code that we mere bloggers don’t even comprehend – blockchain, anyone?) as Congress intended, the BAAA needs to be amended to include manufacturers of a third category of medical device-related inputs, “electronic applications” (or something like that), within its protections.  To that end we propose the following amendment, in the nature of an addition, to §1602.  First, to add a new definition:

(3A) Electronic applications

The term “electronic applications” means electronic software, data storage and other interoperable processing of electronic data used in connection with a medical device that has significant non-device-related uses.

Next, we advocate inclusion of “electronic applications” in the definition of “biomaterials supplier” provided in §1602(1).

These additions may require some tweaks elsewhere in the BAAA, but the gist of our proposal should be clear.  In the twenty-first century, the ability of a medical device manufacturer to incorporate multi-use “agnostic” electronic programming into its devices will be at least as important as access to specialized plastics and alloys was in the twentieth century. To ensure that vendors of such data processing software, cloud storage, and other interoperable electronic coding will continue to deal with medical device manufacturers without fear of (or prohibitive price premiums for) involvement in protracted, multi-district mass tort litigation, the BAA needs to be amended to include electronic software as twenty-first century biomaterials.

Kudos to the multifirm defense counsel team that brought home the decision on which we report today, a victory that may well end up on our “best” list for 2018.

In April 2017, we posted about Dr. Mahyar Etminan, then an expert in the Mirena MDL pending in the Southern District of New York.  Plaintiffs in the MDL claimed that the defendant’s product, an intrauterine contraceptive device containing the synthetic hormone levonorgestrel (“LNG”) caused them to develop idiopathic intracranial hypertension (“IIH”), also known as pseudotumor cerebri, a rare and potentially serious condition marked by increased cerebrospinal fluid pressure in the skull.   In 2015, Etminan had published a study designed to assess the risk of IIH.  Although the study did not definitively conclude that defendant’s product caused IIH, Etminan concluded that one of the two analyses, a “disproportionality analysis” of adverse events in the FDA’s FAERS database, identified an increased risk of IIH associated with LNG and that this result was statistically significant.  Etminan concluded that the results of the second analysis, a retrospective cohort study, did not find an increased risk but that this result was not statistically significant.   No other study has ever established a causal link between LNG and IIH.

Subsequently, a prominent scientist in the field attacked the methodology of Etminan’s disproportionality analysis because the study failed to control for age and gender, resulting in erroneous and misleading conclusions.  At the same time, it was revealed that Dr. Etminan was on the plaintiffs’ payroll at the time that he published his study, a conflict of interest he had not disclosed.  Ultimately, after defendants served Dr. Etminan with a notice of deposition in one of the cases in the MDL, Dr. Etminan repudiated much of his study’s analysis and withdrew as an expert.   When we reported this, we told you to “stay tuned,” commenting that plaintiffs’ other experts, all of whom relied on Etminan’s results, had not withdrawn.

The other shoe dropped a couple of weeks ago.  In In re Mirena IUS Levonorgestrel-Related Prods. Liab. Litig., 2018 WL 5276431 (S.D.N.Y. Oct. 24, 2018), the court considered the defendants’ Daubert motions to exclude the plaintiffs’ seven remaining general causation experts.  And it granted them all.   The opinion is very long – seventy-two pages on Westlaw – and we commend it to your weekend reading, as we can’t begin to do justice to the court’s detailed analysis of each expert’s methodology.  But we wanted to bring this terrific decision to your attention and to focus its most important takeaways.

The court began its analysis by emphasizing, “In the face of [the] historical record, with no medical organization or regulator or peer-reviewed scientific literature having found that Mirena or any contraceptive product using LNG is a cause of IIH, an expert witness who would so opine . . . necessarily would break new ground in this litigation.”  Mirena, 2018 WL 5276431 at *20.  All seven of the plaintiffs’ general causation experts “so opined.”  Four of these experts “arrived at this result largely by drawing upon existing sources.”  These included varying combinations of case reports regarding Mirena, case reports regarding other contraceptive products containing LNG, another product’s warning label, the repudiated portions of the Etminan study, and another study (the “Valenzuela study”) that reported a statistically significant association between LNG-containing devices and IIH but which, the authors emphasized, found only a correlation, not a causal link.  The remaining three experts were “mechanism” experts, each of whom postulated a supposed mechanism by which the defendant’s product could cause IIH.   In this post, we will focus on two of the experts in the first group, which included an epidemiologist, a toxicologist, an OB/GYN, and an ophthalmologist, but we urge you to read the court’s dissection of the second group as well.

The plaintiffs’ epidemiology expert was a professor of biostatistics with experience in conducting and analyzing large clinical trials.   He claimed that the nine Bradford-Hill criteria supported his causation conclusion.  As many of you know, the criteria are “metrics that epidemiologists use to distinguish a causal connection from a mere association.” Id. at *23 (citation omitted).  They are:  statistical association (also known as “strength of association), temporality, biological plausibility, coherence, dose-response effect, consistency, analogy, experimental evidence, and specificity.

The court first held that the epidemiologist’s opinion did not satisfy any of Daubert’s four reliability factors, because the expert “has not tested his theory.  He has not subjected it to peer review or had it published.   He has not identified an error rate for his application of the nine Bradford Hill factors. . . . And [his theory] has not been generally accepted by the scientific community.”  Id. at *27 (internal punctuation and citation omitted).  With respect to this last, the court again emphasized, “Outside of this litigation, there is a complete absence of scholarship opining that Mirena, or, for that matter, any LNG-based contraceptive, is a cause of IIH.”   Id.  As such, the court undertook to “take a hard look” at the expert’s methodology, scrutiny that was “particularly warranted” because:

 [I]t is imperative that experts who apply multi-criteria methodologies such as Bradford Hill . . . rigorously explain how they have weighted the criteria.  Otherwise, such methodologies are virtually standardless and their applications to a particular problem can prove unacceptably manipulable.  Rather than advancing the search for truth, these flexible methodologies may serve as vehicles to support a desired conclusion.

Id.  (citations omitted).    Citing four examples of how the expert’s assessment of individual Bradford Hill factors “depart[ed] repeatedly from reliable methodology,” the court held, “Measured against these standards, [the epidemiologist’s] report falls short.  Id. at *28-29.

First, the expert used the “analogy” factor, basing his causation conclusion in part on an analogy to another contraceptive product.  But, the court explained, this analogy was based on an “unestablished hypothesis” about the other contraceptive product, for which a causal relationship with IIH had never been substantiated.  Id. at *29.  With regard to the “specificity” factor, the court explained that the factor “inquires into the number of causes of a disease,” id., with the difficulty of demonstrating a causal association escalating along with the number of possible alternative causes.   “In finding the specificity factor satisfied,” the expert “devote[d] two sentences to his discussion.”  Id.   He relied on a conclusory statement to the effect that alternative causes could be ruled out.   And he relied on the Valenzuela study, which had actually disclaimed a finding of causation.   The court explained that the “consistency” factor required “similar findings generated by several epidemiological studies involving various investigators” reaching the same conclusion.  Id. at *30.    Again, the epidemiologist claimed that the Valenzuela study satisfied this criterion because it considered two separate populations.  But, as the court stated, both studies were conducted by the same investigators, and neither found a causal relationship.  Finally, as to the biological plausibility factor, the epidemiologist postulated a biological mechanism by which he said LNG could cause IIH.  The court stated, “ . . . [B]y any measure, [the expert] is unqualified to give an expert opinion as to a biological mechanism of causation of IIH.”   Id. at *30.   This lack of qualifications compromised the expert’s assessment of the biological plausibility factor as well as of related factors.   The court concluded,

Each of [the expert’s] departures from settled and rigorous methodology favors the same outcome.  Each enables him to find that the Bradford Hill factor at issue support concluding that Mirena is a cause of IIH. . . . [His] unidirectional misapplication of a series of Bradford Hill factors is concerning – it is a red flag.  Rather than suggesting a scholar’s considered neutral engagement with the general causation question at hand, it suggests motivated, result-driven, reasoning. . . . Methodology aimed at achieving one result is unreliable.

Id. (internal punctuation and citation omitted.    The court went on to further eviscerate the epidemiologist’s methodology, criticizing his reliance on the Valenzuela study, his nearly-exclusive use of case reports to support three of nine Bradford Hill factors, his failure to consider evidence that undercut his opinions, and his cherry-picking of case reports that supported his desired conclusion.   The court concluded that the expert’s testimony was “compromised by a range of serious methodological flaws,” and failed to satisfy Daubert’s reliability standard.

The court voiced similar criticisms of the methodology of the plaintiffs’ toxicology expert.  Like the epidemiologist, the toxicologist failed to meet any of the four Daubert reliability standards  In applying the Bradford Hill factors, she failed to identify support for her conclusions, distorted or disregarded evidence that undercut her opinions, failed to articulate a plausible biological mechanism to support her causation conclusion, and drew an inapposite analogy to another contraceptive product.   And her opinions were plagued by additional methodological flaws.   She relied on the portion of the Etminan study that was discredited and that Etminan himself repudiated.  And she cited the Valenzuela study as her sole support for finding several Bradford Hill criteria satisfied without acknowledging the study’s methodological limitations and failure to find causation.   The court concluded, “[The toxicologist’s] proposed testimony is beset by methodological deficiencies.  It falls far short of satisfying Daubert’s standard of reliability.  Her testimony, too, must be excluded.”  Id. at *40.

And so it went with the court’s discussion of the rest of the plaintiffs’ experts.   The opinion does the best job we’ve ever seen of demonstrating how an expert can attempt to create the illusion of reliability by paying lip service to the Bradford Hill criteria and how those criteria can be manipulated to mask wholly result-driven ipse dixit opinions plagued by fatal methodological flaws.   In this case, a committed and rigorous judge stemmed the tide.  But we all know that this is not always the case.

We love this decision.  There is a lot more to say about it, and we look forward to telling you more in an upcoming post.

The 21st Century Cures Act is noteworthy as the first legislative attempt at regulating artificial intelligence (“AI”) in the medical field. The Act added this provision to the FDCA:

(o) Regulation of medical and certain decisions support software: (1) The term device . . . shall not include a software function that is intended

*          *          *          *

(E) unless the function is intended . . . for the purpose of −

*          *          *          *

(ii) supporting or providing recommendations to a health care professional about prevention, diagnosis, or treatment of a disease or condition; and

(iii) enabling such health care professional to independently review the basis for such recommendations that such software presents so that it is not the intent that such health care professional rely primarily on any of such recommendations to make a clinical diagnosis or treatment decision regarding an individual patient.

21 U.S.C. §360j(o)(1)(E). Note:  This same provision is also called “FDCA §520” – by those with an interest (either financial or regulatory) in keeping this area as arcane as possible.

The FDA has also responded with “draft guidance” (also an arcane term – meaning “we can change our minds about this at any time, and you can’t sue us”) about what the Agency considers to be a regulated “device” after the 21st Century Cures Act. “However, software functions that analyze or interpret medical device data in addition to transferring, storing, converting formats, or displaying clinical laboratory test or other device data and results remain subject to FDA’s regulatory oversight.” Id. at 12. Thus, the FDA now also has a definition of “artificial intelligence”:

A device or product that can imitate intelligent behavior or mimics human learning and reasoning. Artificial intelligence includes machine learning, neural networks, and natural language processing. Some terms used to describe artificial intelligence include: computer-aided detection/diagnosis, statistical learning, deep learning, or smart algorithms.

Emphasis added by us throughout.

We have emphasized the selected text because it identifies the underlying tension being created as AI enters the medical field.  What’s going to happen – indeed, what is already happening in some areas such as analysis of some medical images such as x-rays and MRIs – is that AI is going to generate diagnoses (such as tumor, or no tumor) and treatment output for physicians (so-called “computer-aided detection/diagnosis”) in numerous and expanding areas of medical practice.

The AI rubber is really going to hit the road when these “functions that analyze or interpret medical device data” begin to “provid[e] recommendations to a health care professional,” that said professional can no longer “independently review,” so that our health care providers will find it necessary to “rely primarily on . . . such recommendations.”  To put it bluntly, at some point in the not-too-distant future, AI will able to diagnose a disease and to propose how to treat it as well or better than human physicians. Moreover, since AI means that the machines can “teach” themselves through experience, they will evolve into something of a “black box,” running processes that humans will no longer be able to follow or to analyze independently.

Just as computers can now beat any and all humans at complex logic games such as chess and go, they will eventually be able to out-diagnose and out-treat any and all doctors.

What then?

Consider the tort system.  That’s what we do here on the Blog.

The diagnosis and treatment of disease has heretofore been considered the province of medical malpractice, with its traditions of medical “standard of care” and its professional requirements of “informed consent.”  Conversely, the medical malpractice area is governed, in most jurisdictions, by a variety of “tort reform” statutes that do things such as impose damages caps, create medical screening panels, and require early expert opinions.

Already, without considering AI, such statutory restrictions on medical malpractice plaintiffs leads these plaintiffs, whenever possible, to reframe what should be medical malpractice cases as product liability claims. Take Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), for example.  In Riegel, the plaintiff was injured when his physician put the medical device (a balloon catheter) to a contraindicated use (in a heavily calcified artery).  Id. at 320. What happens when you push balloons against hard things with sharp edges? They go “pop.”  That’s what happened in Riegel.  Likewise, consider Wyeth v. Levine, 555 U.S. 555 (2009).  In Levine, the plaintiff was injured when a drug that was supposed to be injected intravenously was mistakenly injected into an artery instead.  Id. at 559-60.  Since the medical lobby has been much more successful in passing “tort reform” than have FDA-regulated product manufacturers, the plaintiffs have taken the path of least resistance, meaning product liability.

The same thing is sure to happen with AI – where plaintiffs will surely attempt to impose what amounts to absolute liability on the manufacturers of AI-enhanced medical “devices.”  Just look at the experience with AI in the automotive field.  Every accident involving a self-driving car becomes a big deal, with the AI systems presumed to be somehow at fault.  However, the negligence standard, for both auto accidents and medical malpractice, has always been that of a “reasonable man.”  That’s the crux of what will be the struggle over AI – when machines take over the functions once performed by human operators (whether drivers or doctors), are they also to be judged by a “reasonable man” negligence standard?  Or will strict (really strict) liability be imposed?

Then there’s preemption.  Under the statutory provisions we quoted at the beginning of this post, the FDA will be regulating AI that makes diagnostic and treatment “recommendations” to physicians as “devices.”  Perhaps the regulatory lawyers will figure out how to pitch AI as “substantially equivalent” to one or more already-marketed predicate devices, but if they don’t, then AI medical devices will require pre-market approval as “new” devices.  AI seems so different from prior devices – as indicated by its special treatment in the 21st Century Cures Act – that we wouldn’t be at all surprised if PMA preemption will be available to protect many, if not all, AI device manufacturers from state tort liability.

But putting preemption aside for the moment, the typical AI medical injury suit will usually involve one of two patterns – the AI equipment generates a diagnosis and proposal for treatment, and the patient’s attending physician either ;  (1) follows the machine’s output, or (2) does not follow that output.  For this hypothetical, we assume some sort of injury.

If the physician went with the machine, then the plaintiff is going to pursue a product liability action targeting AI.  Given AI’s function, and the black box nature of its operation, in such cases it will be very tempting for the physician also to seek to avoid liability by, say, blaming the machine for a misdiagnosis due to unspecified errors in the algorithm.  In such cases, both the plaintiff and the defendant physician would presumably advocate some sort of “malfunction theory” of liability that would lift the usual product liability obligation for the party asserting a “defect” to prove what the defect was.  Again, the black box nature of machine learning will force reliance on this type of theory.

So, are lawsuits targeting AI medical devices going to be allowed to proceed under strict liability?  In most jurisdiction, the “malfunction theory” is only available in strict liability.  There are two problems with the strict liability in AI situations, something the law will have to sort out over the coming years.  First, computer software has not been considered a “product” for product liability purposes, under either the Second or Third Restatements of Torts.  Second, individualized medical diagnoses and treatments has always been considered a “service” rather than a “product,” which is the reason that doctors and hospitals have not previously been subjected to strict liability, even when part of their medical practice involves the prescription of drugs and/or the implanting of medical devices.  We discussed both of these issues in detail in our earlier post on AI.  So, while we can expect plaintiffs to assert strict liability in AI diagnosis and treatment cases, defendants have good grounds for relying on the negligence “reasonable man” standard.

In case two, where injury occurs after the physician elects not to follow the machine’s output, the plaintiff likely will not have a product liability action.  For one thing, once the results of AI are ignored, it’s pretty hard to argue causation.  The plaintiffs know that, so in this situation they will rely on the AI output to point a finger at the doctor.  Unlike situation one, there is unlikely to be much intra-defendant finger-pointing, first because any AI defendant will win on causation, and second because doctors will remain the AI manufacturers’ customers, and it is not good business to tick off one’s customers.

So in case two, the malpractice question will be whether it is “standard of care” for a doctor (or other relevant health care provider) to follow an AI-generated diagnosis or treatment output, even when the doctor personally disagrees with that diagnosis/course of treatment based on his or her own independent medical judgment.  As posed, this question is close to the learned intermediary rule, only to some extent in reverse.  As with the learned intermediary rule, the basic proposition would be that the physician remains an independent actor, and that the job of the manufacturer (in this case, of AI equipment) is solely to provide the best possible information for the physician to evaluate and use as s/he sees fit.  Only, in this instance, the physician is the one protected by this rule, rather than the manufacturer.  The other alternative – forcing physicians to accept the output of AI as automatically being the medical “standard of care” – would effectively deprive physicians of professional independence, and we see little chance of the medical lobby of allowing that alternative being chosen.

Case two is thus a situation where “tort reform” could be relevant.  As AI catches on, and physicians become aware of the problem of having their therapeutic decisions being second-guessed by plaintiffs relying on AI outputs, we would not be surprised to see statutory proposals declaring AI results inadmissible in medical malpractice actions.  We think that AI manufacturers should view such efforts as opportunities, rather than threats.  An alliance between physician and AI interests to ensure that (in case one) AI is judged by a negligence “reasonable man” standard if and when preemption doesn’t apply, rather than strict liability, could be combined with an evidentiary exclusion provision (in case two) in a comprehensive AI tort reform bill that all potential defendants could get behind.

Indeed, such legislation could be critically important in ensuring a successful future for AI in the medical space.  Even assuming that the FDA straightens out the regulatory side, the other side’s already existing impetus to impose strict liability on AI could hinder its acceptance or prohibitively raise the cost of acquiring and using AI technology.  States that wish to encourage the use of medical AI would be well advised to pass such statutes.  Alternatively, so might Congress, should product liability litigation hinder the use of this life- and (secondarily) cost-saving technology.

A federal judge in one of our non-drug or device cases recently informed the parties that he was so busy with his criminal docket that it might be better to let the magistrate judge take over our case, including trial. We fretted over the prospect of losing a judge who had thus far been very attentive, careful, and rigorous, but the issue was mooted when the plaintiff swiftly said “No thanks.”

Over the years, we have had many good experiences with magistrate judges. Indeed, our last trial in Philly was in front of a magistrate judge, and it would be hard to imagine how it could have been any more fair or efficient. The case we are discussing today, Lynch v. Olympus Am., Inc., 2018 U.S. Dist. LEXIS 185595 (D. Colorado Oct. 30, 2018), was handled by a magistrate judge pursuant to the parties’ consent via 28 U.S.C. 636(c). The plaintiff might now regret such consent, in light of the magistrate judge’s decision, but the clarity and logic of that decision is undeniable.

In Lynch, the plaintiff sued three companies for making endoscopes that were allegedly too hard to clean, thereby causing the plaintiff to suffer an infection and illness. One of the companies was a Japanese parent, and the other two were affiliates that did business in the United States. The Japanese parent moved to dismiss the complaint for want of personal jurisdiction. The affiliates moved to dismiss the strict liability and negligence claims on substantive grounds, and to dismiss the misrepresentation claims for failure to plead with specificity.

The magistrate judge’s opinion is exquisitely organized, so we’ll follow its outline faithfully.

    Personal jurisdiction

The Lynch court considered whether the Japanese parent could be hailed into Colorado based on the stream of commerce theory. That theory is not one of our favorites, and the Lynch court correctly described its fuzziness. SCOTUS has not exactly been very exacting in setting forth the contours of the stream of commerce theory. The Tenth Circuit has been better in erecting this key guardrail: “specific jurisdiction must be based on actions by the defendant and not on events that are the result of actions taken by someone else.” Monge v. RG Petro-Machinery (Group) Co., 701 F.3d 598, 618 (10th Cir. 2012). The Tenth Circuit has also been unambiguous that mere corporate affiliation is insufficient to impute one company’s contacts to its parent corporation. Accordingly, the Lynch court did not feel “free to disregard corporate formalities when assessing whether it may properly exercise personal jurisdiction over a defendant.” What we end up with is another successful example of using marketing subsidiaries to insulate the foreign parent from suit.

Are we done with personal jurisdiction? Not yet. The plaintiff tried to invoke non-registration-related consent by the parent corporation, based on things that happened in other cases. Nice try. Not really. The Lynch court reasonably pointed out that other cases are other cases, and what happened in those other cases has no bearing on or similarity with this case. “A consent in one case does not affect the propriety of a court’s exercise of personal jurisdiction in another case, even if related and even if in the same forum.” The court agreed with the plaintiff that it might be entitled to some jurisdictional discovery — if it could successfully plead the substantive claims, but that, as we will see in a moment, is not so clear.

    Design Defect

Beyond bare conclusions, the plaintiff did not manage to allege that the risks of the endoscopes outweigh benefits in all patients. Potential problems with reuse do not affect all patients on whom new devices are used. “[M]erely being difficult to clean does not render the device unsafe for all all patients.” Moreover, causation requires more than the fact that the plaintiff fell ill after encountering the product. The allegations are too conclusory to state a claim for strict liability under a design defect theory.

    Failure to Warn

Lynch is the first case applying Colorado law to apply the learned intermediary rule to a medical device. No prior Colorado court had explicitly done so, though there was at least one case that generally treated prescription drugs and medical devices together. The plaintiff in Lynch contended that the endoscope was a nonprescription device. Even if that contention was “technically correct,” it did not matter. “Clearly, patients are not buying [endoscopes] over the counter” to administer the procedure to themselves at home. It is necessarily a doctor who “decides the procedure is required and performs it.” To our mind, the Lynch court analysis makes good sense. There are a variety of medical devices that might not technically require a prescription, but there is still no doubt that a doctor is a necessary (and learned) intermediary. Think of scalpels. The doctor, not the patient, selects the particular scalpels employed in a procedure. Would it make any sense to permit personal injury plaintiffs to complain that the scalpel manufacturer supplied inadequate warnings? Scalpels are, sharp, sure. But maybe the manufacturer should have warned that they are very, very sharp. Or maybe there is a materials safety data sheet for one of the scalpel’s raw materials that might give the dense or paranoid pause. The mind reels. For now, let’s content ourselves with the Lynch court’s application of the learned intermediary rule to endoscopes, and the court’s conclusion that the plaintiff did “not allege the failure to warn as applied to her physician.”

The Lynch court made another ruling that is pertinent to many drug and device cases: is the failure to warn really about warning at all? What exactly is the warning and what would be the effect of the warning? In Lynch, the warning allegedly lacking seems to be nothing more than telling doctors that the product is defective. “Plaintiff’s claim is, in essence, that the product was defectively designed and therefore the warning was inadequate; as pled, the failure to warn claim cannot be distinguished from the design defect claim.” Thus, the warning claim boils down to, or takes back to, the design defect claim. And we know how that turned out.

    Negligence and Products Liability

The complaint contained “inadequate factual allegations establishing causation. Absent plausible allegations linking the Defendants’ actions to the Plaintiff’s harms, there is no plausible claim for relief.” Well, okay then.


The plaintiff alleged both fraud and negligent misrepresentation, but the Lynch court correctly points out that there was no real difference between those claims. The negligent misrepresentation claim was replete with all sorts of intentionality. The court concluded that both claims needed specificity and both claims lacked it. The acts of the various defendants were jumbled together, and specifics on who, what, where, and when were wholly absent.


The plaintiff will get a chance to try again. The magistrate judge was perhaps a bit charitable. But she was also smart and careful, so the plaintiff had better do a much better job on the next go around.

Back in May, 3M won the first MDL bellwether trial in In re: Bair Hugger Forced Air Warning Devices Prods. Liab. Litig. (D. Minn.). The case was Gareis v. 3M Company and at the time of trial, the only claim remaining in the case was for strict liability design defect under South Carolina law. 2018 WL 5307824 at *1 (D. Minn. Oct. 26, 2018). Plaintiff’s negligence, failure to warn, unfair and deceptive trade practices, misrepresentation, and unjust enrichment claims had all been dismissed on summary judgment. Following the defense verdict, plaintiff moved for a new trial based on dangerously thin grounds. The kind of grounds that simply crumble when even the slightest force is brought to bear. And that’s pretty much what happened. Plaintiff’s arguments just fell apart.

Plaintiff’s first argument was that the court improperly excluded evidence that would have helped him prove a design defect. Id. at *2. And the court’s first conclusion was that plaintiff “identif[ied] no prejudice” from the exclusion of the evidence. With no discussion of how the trial result would vary with the admission of the evidence, plaintiff’s motion had to be denied. Id. But the court also went on to explain why the evidence was properly excluded.

Plaintiff wanted to admit evidence of defendant’s “knowledge of risk-utility.” Id. But, “the manufacturer’s mental state is not an element of a strict liability claim for design defect.” Id. Under South Carolina law, the focus in a strict liability “centers upon the alleged defectively designed product,” not the manufacturer’s conduct. Id. Since the evidence wouldn’t go to an element of plaintiff’s claim, it was irrelevant and inadmissible. Plaintiff also argued that certain alternative design evidence was improperly excluded based solely on the argument that he should not have been limited to only alternative designs that “achieve the same function by the same mechanism.” Id. at *3. In other words, plaintiff wanted to introduce “alternatives” that were actually “different” products. That bare bones assertion didn’t move the court to go back and revisit its already correct in limine ruling on the issue.

Plaintiff then moved on to evidence it argued was improperly admitted. Testimony by defense experts that plaintiff alleged was not disclosed in the expert’s Rule 26 disclosures and therefore was inadmissible at trial. But, it you’re going to argue surprise – it really needs to be a surprise. For example, plaintiff argued that defendant’s expert did not disclose that he intended to use a video of a study used to validate his experiment and therefore plaintiff couldn’t effectively cross-examine the witness regarding the details of the experiment. Id. at *4. But, plaintiff saw the video during the MDL Science Day, referenced it in his motion to exclude defendant’s expert, knew that it was available on defendant’s website, and even question the expert about it at his deposition. Id. Not really a sneak attack. The court found no violation of the Rule 26’s disclosure requirements, but even if there had been, “the admission of the video was harmless.” Id. Plaintiff tried to make the same argument about defense expert’s testimony concerning a study cited by plaintiff’s expert. While defendant’s expert didn’t cite the study, his report did opine on the substance of the study. Id. Again, hard to be surprised about a study your own expert relied on. There are a few other similar examples in the opinion.

Finally, plaintiff tried to argue that testimony that never happened should also have been excluded. Go ahead, you can re-read that sentence. It’s accurate. Evidence of FDA clearance of the device was excluded in limine. At trial, defense counsel started to ask a question about the FDA’s examination of the device to which plaintiff’s counsel immediately objected. The objection was sustained. The question was not answered. At sidebar, plaintiff asked that the testimony be stricken. The court denied the request because there was no testimony to strike. Plaintiff argued that the failure to strike testimony that didn’t exist was grounds for a new trial. The court didn’t agree. No new trial. Id. at *6. Bair Hugger score remains 1-0 defendant.

Not quite a year ago, we prepared a 50-state survey on the status of claims that a foreign corporation’s compliance with a state’s corporate domestication statutes can be “consent” to general personal jurisdiction. This post went along with one of the DDL Blog’s cheat sheets called the “Post-BMS Personal Jurisdiction Cheat Sheet.”

Because Bexis recently filed an amicus brief on this subject in Pennsylvania, in connection with which he had occasion to update the law in this field, particularly as to Pennsylvania’s vexed situation.  Unlike almost every other state in the union, since Daimler AG v. Bauman, 571 U.S. 117 (2014) (“Bauman”), Pennsylvania seems to be doubling down on general jurisdiction by consent.  Since everybody else is marching in the other direction, we’ve decided to incorporate a detailed critique of Pennsylvania developments into an updated version of our 50-state survey.  We also wish to recognize, again, Reed Smith attorney Kevin Hara, without whose efforts the original 50-state survey could not have been created.

We start with the century-old Supreme Court case, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917) (“Pa. Fire”).  Although it has yet to address Pa. Fire directly, the Supreme Court requires that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Shaffer v. Heitner, 433 U.S. 186, 212 (1977).  In Bauman, the Supreme Court cautioned that “cases decided in the era dominated by Pennoyer’s territorial thinking should not attract heavy reliance today.” 134 S. Ct. at 761 n.18 (citation omitted). Thus:

Pennsylvania Fire cannot be divorced from the outdated jurisprudential assumptions of its era. The sweeping interpretation . . . [of] a routine registration statute and an accompanying power of attorney that Pennsylvania Fire credited as a general “consent” has yielded to the doctrinal refinement reflected in Goodyear and [Daimler] and the Court’s 21st century approach to general and specific jurisdiction.

Brown v. Lockheed-Martin Corp., 814 F.3d 619, 639 (2d Cir. 2016).  Pa. Fire “represent[s] a disfavored approach to general jurisdiction.” Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 898 N.W.2d 70, 82 (Wis. 2017).  “Pennsylvania Fire has yielded to the two-prong analysis for long-arm jurisdiction set forth in recent decades by the Supreme Court.” Magwitch, LLC v. Pusser’s West Indies, Ltd., 200 So.3d 216, 218 (Fla. App. 2016).

The basic problem with general jurisdiction by consent is that, under the International Shoe approach to personal jurisdiction, the United States Supreme Court has repeatedly held that corporate defendants must be “at home” in order to support a state’s general jurisdiction – not just that they conduct “continuous and substantial” business – far less that they merely register to do business.

Our precedent . . . explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not “at home” in the State and the episode-in-suit occurred elsewhere.

BNSF Railway. v. Tyrrell, 137 S. Ct. 1549, 1554 (2017); see Bauman, 571 U.S. at 127 (foreign corporate “affiliations with the State [must be] so ‘continuous and systematic’ as to render them essentially at home in the forum State”) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)).

The unconstitutionality of a general personal jurisdiction by consent theory, which ignores the Supreme Court’s rigorous “at home” standard for general jurisdiction, is a fortiori from Bauman:

[T]he same global reach would presumably be available in every other State. . . . Such exorbitant exercises of all-purpose jurisdiction would scarcely permit out-of-state defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.

571 U.S. at 139 (citation and quotation marks omitted).  “A corporation that operates in many places can scarcely be deemed at home in all of them.”  Id. at 139 n.20.  “[I]n-state business . . . does not suffice to permit the assertion of general jurisdiction.”  BNSF, 137 S. Ct. at 1559.

All 50 states and the District of Columbia have corporate registration laws.  E.g., T. Monestier, “Registration Statutes, General Jurisdiction, & the Fallacy of Consent,” 36 Cardozo L. Rev. 1343, 1363-64 n.109 (2015) (collecting all 50 states’ registration statutes).  Thus, if a registration statute could create general jurisdiction – based on “consent” or anything else – in derogation of constitutional standards, interstate corporations could be subjected to general jurisdiction everywhere they conducted business, even if that business is not “continuous and substantial,” and even if they actually conducted no business at all.  No dice.  In Bauman, the Supreme Court specifically rejected, as “unacceptably grasping,” legal theories that “approve the exercise of general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of business.”  571 U.S. at 138 (quotation marks omitted).

Since International Shoe, the Supreme Court has not viewed “consent” the way it did in Pa. Fire.  Instead, it dispensed with “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.”  Shaffer, 433 U.S. at 202-03.  Broad notions of “implied” consent are now considered “purely fictional”:

We initially upheld these [corporate registration] laws under the Due Process Clause on grounds that they complied with Pennoyer’s rigid requirement of either “consent,” or “presence.”  As many observed, however, the consent and presence were purely fictional.  Our opinion in International Shoe cast those fictions aside.

Burnham v. Superior Court, 495 U.S. 604, 617-18 (1990) (citations omitted).

The Court’s most extensive discussion of personal jurisdiction and consent during the International Shoe era is in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinée, 456 U.S. 694 (1982) (“ICI”), and that discussion entirely omits corporate registration as a recognized form of “consent.”  Rather, the “variety of legal arrangements have been taken to represent express or implied consent” recognized in ICI consisted of:

  • “[S]ubmi[ssion] to the jurisdiction of the court by appearance”
  • “[P]arties to a contract may agree in advance”
  • “[A] stipulation entered into by the defendant”
  • “[C]onsent [is] implicit in agreements to arbitrate”
  • “[C]onstructive consent to the personal jurisdiction of the state court [inheres] in the voluntary use of certain state procedures”
  • “[W]aive[r] if not timely raised”
  • “[F]ail[ure] to comply with a pretrial discovery order.”

456 U.S. at 704-06 (citations and quotation marks omitted).  Every one of these consent examples has something in common – consent is given on a case-specific basis.  Likewise, the Court discussed consent in J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 880-81 (2011), and again did not include corporate registration.  Id. at 880-81.  Since International Shoe, the Supreme Court has not recognized any form of blanket consent to personal jurisdiction for anything at any time.

Corporate registration statutes are thus conspicuously absent from all recent Supreme Court consideration of personal jurisdiction by consent, and for good reason.  States may not “requir[e] the corporation, as a condition precedent to obtaining a permit to do business within the State, to surrender a right and privilege secured to it by the Constitution.”  Koontz v. St. Johns River Water Management District, 570 U.S. 595, 607 (2013) (citations and quotation marks omitted).  That would impose an “unconstitutional condition” on the ability of foreign corporations to conduct interstate commerce.  Id. Rather, as the Supreme Court observed in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), for a corporation “to secure a license and to designate a statutory agent upon whom process may be served” at most “provide[s] a helpful but not a conclusive test” for jurisdiction.  Id. at 445.

Under the current framework for personal jurisdiction, “consent” by registering to do business as a foreign corporation no longer supports general jurisdiction.  “‘Extorted actual consent’ and ‘equally unwilling implied consent’ are not the stuff of due process.”  Leonard v. USA Petroleum Corp., 829 F. Supp. 882, 889 (S.D. Tex. 1993) (citation omitted).  At most, corporate registration is one factor in considering specific “case-linked” personal jurisdiction under the framework discussed in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

A large and growing body of law exists on the concept of jurisdiction by consent.  We have a constantly updated cheat sheet collecting the favorable cases here.  Even before Bauman was decided, 28 states already had precedent holding that general personal jurisdiction could not be predicated solely on compliance with the state’s corporate domestication statute.  The highest courts in California, Colorado, Delaware, Illinois, Maryland, Michigan, Missouri, Montana, Nevada, North Carolina, Ohio, Oregon, South Carolina, and Wisconsin have rejected such arguments, with eight of those occurring post-Bauman.  Thus, in the four years since the Supreme Court decided Bauman, all eight state high courts to address the issue have unanimously concluded that compliance with corporate registration statutes cannot, without (much) more, satisfy the strict standard for general personal jurisdiction, whether or not called “consent.”

We count only four states (Iowa, Minnesota, Nebraska, and Pennsylvania – with Pennsylvania being the most notorious), along with Puerto Rico, that currently still subscribe to the “fiction” of corporate registration as a form of “consent.”  All four of these states are in circuits that issued wayward general jurisdiction by consent decisions over two decades before Bauman.  See Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991) (applying Pennsylvania law); Knowlton v. Allied Van Lines, 900 F.2d 1196 (8th Cir. 1990) (applying Minnesota law).  The outcome is unclear in four other states (Kansas, Kentucky, New Mexico, and Wyoming).  Overall, the vast majority of states – 42 (plus DC and VI) – have precedent rejecting the proposition that a nonresident defendant may be subject to general jurisdiction simply by registering to conduct business.

Further, the trend away from general jurisdiction by consent has accelerated since Bauman.  Our cheat sheet, here, shows an increasing number of decisions across the country against subjecting a nonresident corporate defendant to a state’s general jurisdiction simply due to its registration to conduct business.  While the Supreme Court has yet to issue the final verdict, the legal tide is moving in the right direction with ever more courts rejecting this “back‐door thief” of a theory that would “rob [Bauman] of meaning.” Brown, 814 F.3d 640.


The relevant Alabama statute, Ala. Code §10A-1-5.31, does not mention personal jurisdiction at all.  In Beasley v. Providence Hospital, 2018 WL 2994380 (S.D. Ala. June 13, 2018), the court decisively rejected general jurisdiction by consent:

The plaintiff argues that [defendant] is subject to general jurisdiction in Alabama because it is licensed to do business in Alabama and has a registered agent for service of process in Alabama. The plaintiff cites no authority even remotely supporting the proposition that such modest activity could support the exercise of general jurisdiction, and plainly it does not. A corporation’s operations in a forum other than its formal place of incorporation or principal place of business will be so substantial and of such a nature as to render the corporation at home in that State only in exceptional cases. It would be difficult to imagine a less exceptional circumstance than the unremarkable commonplace of an entity registering to do business in a foreign state or appointing an agent for service of process there.

Id. at *3 (citations and quotation marks omitted).  Another post-Bauman Alabama case likewise holds that being “registered to do business in Alabama . . . alone is insufficient for the court to exercise general jurisdiction.”  Roper v. CNU of Alabama, 2017 WL 3334876, at *2 (N.D. Ala. Aug. 4, 2017).  These decisions are more persuasive than the pre-Bauman decision in Johnston v. Foster-Wheeler Constructors, Inc., stating that corporate registration “suggests that Defendant has continuous and systematic contacts with Alabama.”  158 F.R.D. 496, 501-02 (M.D. Ala. 1994).  Johnston ultimately decided jurisdiction on a minimum contacts analysis involving more than registration.  Id.  The precedent in Alabama has moved in the right direction.


Alaska’s registration statute provides no guidance on in this issue, and the cases are mostly unhelpful.  A relatively old decision, Stephenson v. Duriron Co., 401 P.2d 423 (Alaska 1965), indicated that a prior version of the registration statute did not “purport to define those activities which may subject a foreign corporation” to the jurisdiction of Alaska courts.  Id. at 424.  The language is dictum, and it’s old, but particularly given the overall trend of the law, corporate registration alone is not likely to suffice for general personal jurisdiction in Alaska.


In Arizona, a post-Bauman intermediate appellate decision held:

[T]he statutes do not create general jurisdiction by implied consent. A corporation cannot fairly be deemed to have consented to waive its due process rights when, as here, the statutes give no notice that such a waiver is the price of registration. . . . We acknowledge that some recent decisions still hold that consent to service of process is consent to general personal jurisdiction. . . .  We are not persuaded by those decisions.

*          *          *          *

Because the modern doctrine of specific jurisdiction amply ensures that a state has jurisdiction when a corporation’s conduct allegedly causes harm in that state, there is no need to base personal jurisdiction solely upon a murky implication of consent to suit—for all purposes and in all cases—from the bare appointment of an agent for service. We therefore agree with those decisions holding that registration statutes do not imply consent to general jurisdiction.

Wal-Mart Stores, Inc. v. Lemaire, 395 P.3d 1116, 1119-20 (Ariz. App. 2017) (citations omitted).

Lemaire distinguished a prior decision, Bohreer v. Erie Insurance Exchange, 165 P.3d 186, 187-92 (Ariz. App. 2007), as based on an insurance statute.  395 P.3d at 1118.  Bohreer had “agree[d]” with now overruled (see Delaware) Sternberg decision.  165 P.3d at 192.  Arizona federal courts agree with Lemaire.  Humphries v. Allstate Insurance Co., 2018 WL 1510441, at *3 (D. Ariz. March 27, 2018) (“categorical assertion of general jurisdiction where the corporation complies with a state’s registration and appointment laws would essentially contradict [Bauman] and BNSF’s limitation of general jurisdiction”); Harter v. Ascension Health, 2018 WL 496911, at *3 (D. Ariz. Jan. 22, 2018) (registration to do business merely a “relevant factor” for specific jurisdiction; not determinative of general jurisdiction).  Cf. EZScreenPrint LLC v. SmallDog Prints LLC, 2018 WL 3729745 (D. Ariz. Aug. 6, 2018) (registration of domain name with Arizona company does not create general jurisdiction).  Arizona is now solidly behind the general consensus rejecting general jurisdiction by consent.


The Arkansas Code explicitly provides that “[t]he appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.”  Ark. Code Ann. §4-20-115.  See also Pearrow v. National Life & Accident Insurance Co., 703 F.2d 1067, 1069 (8th Cir. 1983) (appointment of an agent for service of process does not create general personal jurisdiction) (applying Arkansas law); Antoon v. Securus Technologies, Inc., 2017 WL 2124466, at *3 (W.D. Ark. May 15, 2017) (rejecting argument “that every single foreign corporation who lawfully conducts business within the state of Arkansas consents thereby to the exercise of general jurisdiction”); but see Basham v. American National County Mutual Insurance Co., 2015 WL 1034186, at *4 (W.D. Ark. March 10, 2015) (allowing general jurisdiction by consent under a less specific insurance statute under Knowlton (see Minnesota).  Except maybe as to insurance companies, Arkansas seems solid against general jurisdiction by consent.


The California Supreme Court’s now-reversed BMS decision also shot down, under Bauman, corporate registration as a basis for general personal jurisdiction (not at issue in the United States Supreme Court).  “[A] corporation’s appointment of an agent for service of process, when required by state law, cannot compel its surrender to general jurisdiction for disputes unrelated to its California transactions.”  Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 884 (Cal. 2016), reversed on other grounds, 137 S. Ct. 1773 (2017).  See also Thomson v. Anderson, 6 Cal. Rptr.3d 262, 269 (Cal. App. 2003) (rejecting corporate registration as a separate basis for personal jurisdiction); DVI, Inc. v. Superior Court, 128 Cal. Rptr.2d 683, 694 (Cal. App. 2002) (“designation of an agent for service of process and qualification to do business in California alone are insufficient to permit general jurisdiction”); Gray Line Tours v. Reynolds Electrical & Engineering Co., 238 Cal. Rptr. 419, 421 (Cal. App. 1987) (“it cannot be said [defendant] consented to the exercise of jurisdiction for all purposes when it appointed” an agent for service of process); Am Trust v. UBS AG, 681 F. Appx. 587, 589 (9th Cir. 2017) (“consent to general personal jurisdiction” not created by registering to do business) (applying California law); In re Nexus 6P Products Liability Litigation, 2018 WL 827958, at *3 (N.D. Cal. Feb. 12, 2018) (“under California law, it is not enough that [defendant] maintains a California agent for service of process and has registered to do business in California”); Travelers Property Casualty Co. v. Hume Lake Christian Camps, Inc., 2018 WL 280025, at *4-5 (S.D. Cal. Jan. 3, 2018) (no general jurisdiction despite registration to do business in California); L.A. Gem & Jewelry Design, Inc. v. Ecommerce Innovations, LLC, 2017 WL 1535084, at *5 (C.D. Cal. April 27, 2017) (“Designation of an agent for service of process in California, alone, is not enough to show general jurisdiction.”); Lindora, LLC v. Isagenix International, LLC, 198 F. Supp.3d 1127, 1136-37 (S.D. Cal. 2016) (no general personal jurisdiction despite defendant registered to do business in California); American Insurance Co. v. R&Q Reinsurance Co., 2016 WL 5930589, at *2 (N.D. Cal. Oct. 12, 2016) (same); Angelini Metal Works Co. v. Hubbard Iron Doors, Inc., 2016 WL 6304476, at *3 (C.D. Cal. Jan. 5, 2016) (same); Freeney v. Bank of America Corp., 2015 WL 12535021, at *41 (C.D. Cal. Nov. 19, 2015) (rejecting general jurisdiction based on registration or appointment of agent for service of process); Henderson v. United Student Aid Funds, Inc., 2015 WL 12658485, at *4 (S.D. Cal. April 8, 2015) (no general personal jurisdiction despite defendant registered to do business in California); Overhill Farms Inc. v. West Liberty Foods LLC, 2014 WL 4180920, at *4 (C.D. Cal. Aug. 21, 2014) (“while it is relevant that Defendant may be registered to do business and has designated an agent for service of process in California, these acts alone are insufficient to support a finding of general jurisdiction”).  There is no doubt that California rejects general jurisdiction by consent.


After Bauman, the Colorado Supreme Court held that, although a defendant foreign corporation “ha[d] a registered agent in Colorado,” corporate registration cannot support general jurisdiction where a defendant’s in-state contacts “pale in comparison to the significant contacts that were deemed ‘slim’ in [Bauman].”  Magill v. Ford Motor Co., 379 P.3d 1033, 1038-39 (Colo. 2016); accord Allied Carriers Exchange, Inc. v. All. Shippers, Inc., 1999 WL 35363796, at *3-4 (D. Colo. Sept. 22, 1999) (“appointment of a registered agent . . . alone cannot reasonably be characterized as purposeful, continuous, and systematic” so as to create general jurisdiction).

Magill thus nullified the unfavorable pre-Bauman dictum in Packaging Store, Inc. v. Leung, 917 P.2d 361, 363 (Colo. App. 1996).  Colorado is also solid.


The Second Circuit, in Brown v. Lockheed-Martin Corp., 814 F.3d 619 (2d Cir. 2016) (affirming Brown v. CBS Corp., 19 F. Supp.3d 390, 397 (D. Conn. May 14, 2014)), refused to “err in casually dismissing related federal due process concerns” raised by a plaintiff’s assertion of general jurisdiction based on the Connecticut corporate registration statute.  Such jurisdiction, if conferred by corporate registration statutes, created the same constitutional concerns decided by the Supreme Court in [Bauman]:

In any event, we can say that the analysis that now governs general jurisdiction over foreign corporations − the Supreme Court’s . . . more demanding “essentially at home” test . . . − suggests that federal due process rights likely constrain an interpretation that transforms a run‐of‐the‐mill registration and appointment statute into a corporate “consent” − perhaps unwitting − to the exercise of general jurisdiction by state courts.

Id. (footnote omitted).  The plaintiff’s arguments in Brown sought to entice courts to act as “back door thieves” and rob corporate defendants of the Due Process to which [Bauman] has mandated they be given:

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 [Bauman]’s ruling would be robbed of meaning by a back‐door thief.

Id. at 640.

Pre-Bauman state court cases were split, compare Talenti v. Morgan & Brother Manhattan Storage Co., 968 A.2d 933, 941 (Conn. App. 2009) (finding consent); Lake Road Trust, LTD. v. ABB, Inc., 2011 WL 1734458, at *6 (Conn. Super. April 11, 2011) (same); with WorldCare Corp. v. World Insurance Co., 767 F. Supp. 2d 341, 351-57 (D. Conn. 2011) (“[I]t seems counterintuitive to allow general jurisdiction to rest simply on mandatory registration requirements.  Even if registering corporations are fully apprised of the jurisdictional implications of registration, and manifest express consent to general jurisdiction, it threatens to place them in the impossible position of virtually universal jurisdiction.”) (following Wenche Siemer, see Texas).  In light of Brown, it would be unusual for Connecticut state courts to follow a contrary path.


Prior to Bauman, Delaware – “home” to more corporations than any other state − had interpreted its corporate registration statute to impose general jurisdiction – solely on the basis of a foreign corporation’s registration to do business.  See Sternberg v. O’Neil, 550 A.2d 1105 (Del. 1988).  No longer. In Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016), Delaware’s highest court overruled Sternberg and recognized that predicating general jurisdiction on a foreign corporation’s registration to do business is incompatible with Bauman:

An incentive scheme where every state can claim general jurisdiction over every business that does any business within its borders for any claim would reduce the certainty of the law and subject businesses to capricious litigation treatment as a cost of operating on a national scale or entering any state’s market.  [Bauman] makes plain that it is inconsistent with principles of due process to exercise general jurisdiction over a foreign corporation that is not “essentially at home” in a state for claims having no rational connection to the state. . . .  Hence, Delaware cannot exercise general jurisdiction over it consistent with principles of due process.

137 A.3d at 127-28 (footnote omitted).

Human experience shows that “grasping” behavior by one, can lead to grasping behavior by everyone, to the collective detriment of the common good.  It is one thing for every state to be able to exercise personal jurisdiction in situations when corporations face causes of action arising out of specific contacts in those states; it is another for every major corporation to be subject to the general jurisdiction of all fifty states.  Theoretically, under the [plaintiffs’] position, major Delaware public corporations with national markets could be sued . . . in any state in the nation because the corporations have had to register to do business in every state.  And in fact, many post-[Bauman] decisions involved situations where plaintiffs sought to subject a Delaware corporation to the general jurisdiction of a state that had no relation to the cause of action and was not the corporation‘s principal place of business.  [Bauman] rejected the notion that a corporation that does business in many states can be subject to general jurisdiction in all of them. Under a sensible goose-and-gander approach, Delaware should be prudent and proportionate in exercising jurisdiction over foreign corporations.

Id. at 143 (footnotes omitted).

Cepec construed Delaware’s registration statute “as requiring a foreign corporation to allow service of process to be made upon it in a convenient way in proper cases, but not as a consent to general jurisdiction,” in accordance with Bauman and “common sense.”  Id. at 142-43 . See AstraZeneca AB v. Mylan Pharmaceuticals, Inc., 72 F. Supp. 3d 549, 556 (D. Del. 2014) (“In light of the holding in [Bauman], the court finds that [defendant’s] compliance with Delaware’s registration statutes − mandatory for doing business within the state − cannot constitute consent to jurisdiction.”), aff’d on other grounds, 817 F.3d 755 (Fed. Cir. 2016).  Cepec thus eliminated the contrary jurisdictional decision in Acorda Therapeutics, Inc. v. Mylan Pharm. Inc., 78 F. Supp.3d 572, 583-84 (D. Del. 2015), aff’d on other grounds, 817 F.3d 755 (Fed. Cir. 2016), and places Delaware squarely in the majority rejecting general jurisdiction by consent.

District of Columbia

The current District of Columbia statute provides that “[t]he designation or maintenance in the District of a registered agent shall not by itself create the basis for personal jurisdiction.”  D.C. Code §29-104.02 (2013).  See Freedman v. Suntrust Banks, Inc., 139 F. Supp.3d 271, 279-80 (D.D.C. 2015) (general jurisdiction based on registration and agent for service of process “explicitly foreclose[d]” by Bauman because it would subject defendant to jurisdiction in multiple fora; prior precedent no longer valid); Kuennen v. Stryker Corp., 2013 WL 5873277, at *4 (W.D. Va. Oct. 30, 2013) (a defendant’s “business certificate and appointed agent . . . are not independent support for general jurisdiction − the principles of due process require a firmer foundation than mere compliance with state domestication statutes”) (applying District of Columbia law).  Under a prior statute, In re FTC Corp. Patterns Report Litigation, 432 F. Supp. 274, 286 (D.D.C. 1977), allowed mere service on a registered agent to invoke general jurisdiction, although modern terminology was not used.  Under the current D.C. statute, that can’t happen, and the District rejects general jurisdiction by consent.


Since Bauman, Florida district courts of appeals have twice rejected general jurisdiction by consent.  Woodruff-Sawyer & Co. v. Ghilotti, ___ So.3d ___, 2018 WL 4100386 (Fla. App. Aug. 29, 2018), held that general jurisdiction is “not appropriate” under Bauman “without more” than corporate registration and agent for service of process.  Id. at *4.  In Magwitch, LLC v. Pusser’s West Indies Ltd., 200 So. 3d 216 (Fla. App. 2016), the court was “not persuaded” that registration to business was a basis for general personal jurisdiction, holding that “Pennsylvania Fire has yielded to the two-prong analysis for long-arm jurisdiction set forth in recent decades by the Supreme Court.”  Id. at 218.  Accord Rizack v. Signature Bank, N.A., 2017 WL 5197917, at *3-4 (Fla. Cir. March 20, 2017) (“personal jurisdiction over a corporate defendant cannot be found on the basis of a defendant’s registration to do business in the state and designation of a corporate agent alone”) (citation and quotation marks omitted); Goldstein v Hawker Beechcraft Services, 2016 WL 3771165, at *7 (Fla. Cir. June 3, 2016) (that defendant “file[d] with the Florida Department of State for the privilege of conducting such business here,” even with other in-state contacts, insufficient to establish general personal jurisdiction).

Likewise, federal courts both pre- and post-Bauman have repeatedly refused to rule that registration and appointment of an agent for service is a valid basis for general jurisdiction over a nonresident defendant.  See, e.g., Waite v. All Acquisition Corp., 901 F.3d 1307, 1319 & n.5 (11th Cir. 2018) (“we reject the exercise of general personal jurisdiction based on such implied consent”; “an overly broad interpretation of [a state] registration scheme as providing consent might be inconsistent with the Supreme Court’s decision in” Bauman) (applying Florida law); Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000) (“Courts of appeals that have addressed this issue have rejected the argument that appointing a registered agent is sufficient to establish general personal jurisdiction over a corporation”) (applying Florida law); Storms v. Haugland Energy Group, LLC, 2018 WL 4347603, at *7 (Mag. S.D. Fla. Aug. 17, 2018) (“that the Defendant has a Registered Agent does not create general personal jurisdiction”), adopted, 2018 WL 4347604 (S.D. Fla. Sept. 4, 2018); Howe v. Samsung Electronics America, Inc., 2018 WL 2212982, at *4-5 (N.D. Fla. Jan. 5, 2018) (“[T]he 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.”); Hinkle v. Continental Motors, Inc., 2017 WL 3333120, at *10 (M.D. Fla. July 21, 2017) (being “registered to do business here . . . alone is insufficient to confer jurisdiction”); PHD@Western, LLC v. Rudolf Construction Partners, LLC, 2016 WL 5661637, at *4 (S.D. Fla. Sept. 30, 2016) (“merely registering to do business in a state is not a sufficient basis to establish the minimum contacts necessary for a court to obtain personal jurisdiction over a non-resident defendant”); Erwin v. Ford Motor Co., 2016 WL 7655398, at *12 (M.D. Fla. Aug. 31, 2016) (consent through registration does not warrant “exercise of jurisdiction [because it fails to] . . . satisfy the Due Process Clause”); Evans v. Andy & Evan Industries, Inc., 2016 WL 8787062, at *3 (S.D. Fla. July 15, 2016) (registration to do business, even with other contacts, insufficient to support general jurisdiction); Royal Acquisitions 001, LLC v. Ansur America Insurance Co., 2015 WL 1437689, at *4 (S.D. Fla. March 27, 2015) (registration to do business and appointment of a registered agent “are not so continuous and systematic as to render Defendant essentially at home”); Recao v. Bell Helicopter Textron, Inc., 2014 WL 12595302, at *4 (S.D. Fla. Sept. 23, 2014) (rejecting both registration and agent for service as basis for general jurisdiction); Mio, LLC v. Valentino’s, Inc., 2013 WL 3364392, at *6 (M.D. Fla. July 3, 2013) (an “agent to accept service of process . . ., standing alone, does not meet the general jurisdiction requirement”); Keston v. FirstCollect, Inc., 523 F. Supp.2d 1348, 1354 (S.D. Fla. Oct. 31, 2007) (“presence of a corporate agent within the State, service on that agent, and a license to do business in the State are not enough to support my personal jurisdiction . . . where the cause of action is not related to these contacts”); In re Farmland Industries, Inc., 2007 WL 7694308, at *12 (M.D. Fla. March 30, 2007) (“agree[ing] with those cases holding that registering to do business and appointing a registered agent in the state of Florida, without more, does not subject a foreign corporation to the general personal jurisdiction of the state for any and all unrelated actions”); Sofrar, S.A. v. Graham Engineering Corp., 35 F. Supp.2d 919, 919 (S.D. Fla. 1999) (“personal jurisdiction over a corporate defendant cannot be found on the basis of a defendant’s registration to do business in the state and designation of a corporate agent alone”).  Florida looks solid.


Georgia’s registration statute, Ga. Code §14-2-1501, provides no indication that registration affects jurisdiction one way or another; nor are there relevant state cases. However, in Orafol Americas, Inc. v. DBi Services, LLC, 2017 WL 3473217 (N.D. Ga. July 20, 2017), the court held:

Plaintiff notes that [defendant] is registered to do business in Georgia, and has a registered agent in the State.  Additionally, [defendant] has actually engaged in business in Georgia. . . .  But these contacts are woefully insufficient to render [defendant] “at home” in Georgia.  Every company that does any business in Georgia must register with the State and maintain a registered agent.  Just because a company does some small amount of business in Georgia does not mean that due process will allow that company to be sued in Georgia for acts that occurred outside the State.

Id. at *3.

Prior to Bauman, no relevant Georgia appellate authority existed, and two Georgia federal district courts had decided the issue inconsistently.  In Moore v. McKibbon Brothers, 41 F. Supp.2d 1350, 1354 (N.D. Ga. 1998), corporate registration was simply one factor of a minimum contact analysis, rather than as consent to jurisdiction in and of itself.  Id. at 1354 (“courts that have considered the issue have rejected the notion that appointing a registered agent in and of itself satisfies the minimum contacts requirement”).  Contrarily, Wheeling Corrugating Co. v. Universal Const. Co., 571 F. Supp. 487 (N.D. Ga. 1983), upheld general jurisdiction based on registration to do business as consent, relying on Pennoyer-era decisions, and based largely on defendant’s failure to support its opposition to jurisdiction with any evidence.  Id. at 488.  Thus, while Georgia law used to be muddled, after Bauman, it appears headed in the right direction.


Hawai’i’s registration statute, Haw. Rev. Stat. §414-437, is silent as to jurisdiction.  But another statute states, “appointment or maintenance of a registered agent in the State does not by itself create the basis for personal jurisdiction over the represented entity in the State.”  Haw. Rev. Stat. §425R-12.  The one on point decision by a Hawai’i court found that language-controlling.  In Bralich v. Sullivan, 2018 WL 1938297 (D. Haw. April 23, 2018), the court rejected corporate registration as a basis for general personal jurisdiction:

Plaintiff has pointed to no Hawaii statute, nor has the Court been able to locate one, requiring such consent as a condition of registering to do business in Hawaii. Indeed, Hawaii specifically provides that “[t]he appointment or maintenance of a registered agent in the State does not by itself create the basis for personal jurisdiction over the represented entity in the State.” As such, regardless of whether [defendants] ha[ve] a registered agent in Hawaii, the existence of such agent alone appears insufficient to establish personal jurisdiction.

Id. at *4 (quoting §425R) (footnote omitted).  So Hawai’i looks favorable.


Idaho’s statute provides that “designation or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.”  Idaho Code §30-21-414.  A federal district court similarly ruled that the presence of a registered agent alone is insufficient for general jurisdiction over a nonresident corporation.  Strickland v. Bae Systems Tactical Vehicle Systems, LP, 2013 WL 2554671 (D. Idaho June 10, 2013) (“the fact that both corporations have registered agents in Idaho, standing alone, is not enough to establish general jurisdiction over the corporations”).  We should be all right in Idaho.


Following Bauman, the Illinois Supreme Court, in Aspen American Insurance Co. v. Interstate Warehousing, Inc., 90 N.E.3d 440 (Ill. 2017), denied that mere corporate registration creates general jurisdiction:

[T]hat a foreign corporation registered to do business in Illinois is subject to the same duties as a domestic one in no way suggests that the foreign corporation has consented to general jurisdiction. . . . [T]hat a foreign corporation has registered to do business under the Act does not mean that the corporation has thereby consented to general jurisdiction over all causes of action, including those that are completely unrelated to the corporation’s activities in Illinois.

Id. at 447-48.  We discussed Aspen, here.  Accord Campbell v. Acme Insulations, Inc., 105 N.E.3d 984, 993 (Ill. App. 2018) (“Nor does the fact that [defendant] has a registered agent for service of process in Illinois show that it consented to jurisdiction in this State”); Jeffs v. Ford Motor Co., 2018 WL 3466965, at *3 (Ill. App. July 12, 2018) (“any argument that registering under the Act and maintaining an agent amounts to consent or waiver of jurisdiction fails under Aspen”); Alderson v. Southern Co., 747 N.E.2d 926, 944 (Ill. App. 2001) (“designation of an Illinois registered agent is not an independently determinative factor” in jurisdictional analysis).

Illinois federal courts, particularly since Bauman, have held that consent by registration is not a proper exercise of general jurisdiction.  See Al Haj v. Pfizer Inc., 2018 WL 1784126, at *4 (N.D. Ill. April 13, 2018) (“Nor does the presence in the forum State of an agent authorized to receive corporate correspondence” allow general personal jurisdiction); Perry v. JMT Capital Management, LLC, 2018 WL 1635855, at *3 (N.D. Ill. April 5, 2018) (“That defendant is authorized to conduct business in Illinois and maintains a registered agent in the State is insufficient to confer general jurisdiction.”); MG Design Assocs. Corp. v. CoStar Realty Information, Inc., 267 F. Supp.3d 1000, 1014-15 (N.D. Ill. 2017) (“registering to do business is not enough to confer general jurisdiction over a foreign corporation”); Guaranteed Rate, Inc. v. Conn, 264 F. Supp.3d 909, 916 (N.D. Ill. 2017) (registration to do business insufficient to support general jurisdiction); Congdon v. Cheapcaribbean.com, Inc., 2017 WL 5069960, at *8 (N.D. Ill. Nov. 3, 2017) (“it has long been held that registering to do business in a state, ‘standing alone,’ cannot satisfy due process required to assert personal jurisdiction”); Muenstermann v. United States, 2017 WL 1408037, at *2 (S.D. Ill. April 20, 2017) (corporate registration/agent for service of process “do not constitute the type of continuance and systematic affiliations” required to support general jurisdiction; pre-Bauman contrary precedent is no longer applicable); Leibovitch v. Islamic Republic of Iran, 188 F. Supp.3d 734, 749 (N.D. Ill. 2016) (“under Illinois law, the appointment of a registered agent is not determinative in the personal jurisdiction analysis”), aff’d, 852 F.3d 687 (7th Cir. 2017); Perez v. Air & Liquid Systems Corp., 2016 WL 7049153, at *6-9 (S.D. Ill. Dec. 2, 2016) (“registering to do business or maintaining a registered agent is not enough to confer general jurisdiction over a foreign corporation”); Johnson v. Barrier, 2016 WL 3520157 (N.D. Ill. June 28, 2016) (dismissing action; defendant’s consent to jurisdiction in previous cases not judicial estoppel); Demaria v. Nissan, Inc., 2016 WL 374145, at *6 (N.D. Ill. Feb. 1, 2016) (registration does not render corporation “at home” under Bauman); Dimitrov v. Nissan North America, Inc., 2015 WL 9304490, at *4-5 (N.D. Ill. Dec. 22, 2015) (applying “lessons of Daimler”; no general jurisdiction over foreign corporation simply because it was registered to do business in Illinois); Surita v. AM General LLC, 2015 WL 12826471, at *3 (N.D. Ill. Nov. 4, 2015) (plaintiff’s “desire for this Court to exercise ‘all-purpose jurisdiction’ over [defendant] based on the presence of its registered agent in Illinois and [its] registration to do business in Illinois is unavailing, especially in light of” Bauman); Rozumek v. Union Carbide Corp., 2015 WL 12831301, at *2 (S.D. Ill. July 1, 2015) (registration to do business does not create general jurisdiction under Bauman); Rozumek v. General Electric Co., 2015 WL 12829795, at *2 (S.D. Ill. July 1, 2015) (same); Shrum v. Big Lots Stores, Inc., 2014 WL 6888446, at *2, *7 (C.D. Ill. Dec. 8, 2014) (“maintenance of an agent for the service of process does not rise to the level of ‘continuous and systematic’ contacts”); Sullivan v. Sony Music Entertainment, 2014 WL 5473142, at *3 (N.D. Ill. Oct. 29, 2014) (corporate registration could not satisfy Bauman general jurisdiction standard); Rawlins v. Select Specialty Hospital, 2014 WL 1647182, at *5 (N.D. Ill. April 23, 2014) (“the mere presence of one individual in Illinois to accept process does not rise to the level of ‘continuous and systematic’ contacts needed for the court to exercise general jurisdiction”).  Before Bauman, see: ACUITY v. Roadtec, Inc., 2013 WL 6632631, at *5-6 (N.D. Ill. Dec. 16, 2013) (registration to do business does not create general jurisdiction); Bray v. Fresenius Medical Care Aktiengesellschaft Inc., 2007 WL 7366260, at *4 (N.D. Ill. Aug. 30, 2007) (corporate registration “does not demonstrate sufficient minimum contacts to merit general personal jurisdiction”).  Illinois is rock solid in its rejection of general jurisdiction by consent.


Indiana courts, even prior to Bauman, rejected general jurisdiction based only on a foreign corporation’s consent by registering to do business.  Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1245 (7th Cir. 1990) (discussing consent-by-registration and holding that “ordinarily, registration, standing alone, will not satisfy due process”) (applying Indiana law); McManaway v. KBR, Inc., 695 F. Supp.2d 883, 895 (S.D. Ind. 2010) (following Wilson).  Since Bauman, that trend has only accelerated.  United States Bank National Ass’n v. Bank of America, N.A., 2016 WL 5118298, at *7-8 & n.4 (S.D.N.Y. Sept. 20, 2016) (defendant “had not waived its right to object to the exercise of personal jurisdiction by registering to do business in Indiana and designating an agent for service of process in Indiana”) (applying Indiana law); Garcia v. LQ Properties, Inc., 2016 WL 3384644, at *3 (N.D. Ind. June 20, 2016) (registration to do business, even with other contacts, insufficient to support general jurisdiction); United States Bank National Ass’n v. Bank of America, N.A., 2015 WL 5971126, at *6 (S.D. Ind. Oct. 14, 2015) (“Merely registering to do business in Indiana, though a necessary precursor to engaging in business activities in the state, does not establish personal jurisdiction over a corporation.”); NExTT Solutions, LLC v. XOS Technologies, Inc., 71 F. Supp.3d 857, 864-66 (N.D. Ind. 2014) (registration to do business, even with additional in-state contacts, “failed to make a prima facie showing that general jurisdiction can be asserted”; otherwise “the ‘at home’ requirement . . . would be virtually meaningless”). We have no problems in Indiana.


A post-Bauman Iowa federal district court allowed general jurisdiction via consent.  Spanier v. American Pop Corn Co., 2016 WL 1465400 (N.D. Iowa April 14, 2016).  The court considered itself bound by the adverse, pre-Bauman Knowlton decision (see Minnesota). 2016 WL 1465400, at *4 (consent by registration was a valid “means of exercising general jurisdiction” under Knowlton, which held “that consent by registration is a sufficient condition for the exercise of personal jurisdiction, which does not require a due process analysis”).  See also Daughetee v. CHR Hansen, Inc., 2011 WL 1113868, at *7 (N.D. Iowa March 25, 2011) (following Knowlton).  Right now, Iowa is in the pro-consent minority.


Kansas is seriously murky.  In a pre-Bauman decision the Supreme Court of Kansas held that registration is sufficient to establish general jurisdiction by consent.  Merriman v. Crompton Corp., 146 P.3d 162, 171, 177 (Kan. 2006).  Merriman found the Delaware decision in Sternberg “persuasive,” id. at 176, but since then the Delaware Supreme Court overruled Sternberg in light of Bauman, (see Delaware).  Along those lines, a recent Kansas intermediate appellate court ruled that registration alone is insufficient for general jurisdiction.  Kearns v. New York Community Bank, 400 P.3d 182 (table), 2017 WL 1148418, at *6 (Kan. App. March 24, 2017).  Federal courts, post-Bauman, are split.  In In re Syngenta AG MIR 162 Corn Litigation, the court recognized that “a state has no legitimate interest in hosting litigation between two out-of-state parties that does not arise from either parties’ activities in the state.” 2016 WL 2866166, at *6 (D. Kan. May 17, 2016).  However, Syngenta ultimately based its jurisdictional ruling on the Dormant Commerce Clause rather than Due Process.  Id. at *5-6.  Conversely, other Kansas district courts continue to allow general jurisdiction by consent.  AK Steel Corp. v. PAC Operating Ltd. Partnership, 2017 WL 3314294, at *4 (D. Kan. Aug. 3, 2017) (Kansas will continue to follow Pa. Fire unless expressly overruled); Snyder Insurance Services. v. Sohn, 2016 WL 6996265, at *3 (D. Kan. Nov. 30, 2016) (defendant “consented to general personal jurisdiction by its registration to do business in Kansas”); In re Syngenta AG MIR 162 Corn Litigation, 2016 WL 1047996, at *1-3 (D. Kan. March 11, 2016) (court “not prepared” to conclude that Bauman impliedly overruled Pa. Fire).


The issue of consent-based jurisdiction through registration to do business or designation of an agent is uncertain in Kentucky, because the statute, Ky. Rev. Stat. Ann. §14A.4-010, provides no guidance, and no relevant cases have addressed this topic.  This absence of precedent may arise from the Kentucky Supreme Court’s limitation the Commonwealth’s Long-Arm statute (which does not extend to maximum constitutional due process limits) so that “even when the defendant’s conduct and activities fall within one of the enumerated [Kentucky-related] categories, the plaintiff’s claim still must ‘arise’ from that conduct or activity.”  Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 56 (Ky. 2011), a standard that seems to permit only specific jurisdiction.  Due to utter lack of precedent, we’re leaving Kentucky in the uncertain category.


Louisiana state and federal courts, both before and after Bauman, have rejected general jurisdiction on a consent by registration basis.  In Gulf Coast Bank & Trust Co. v. Designed Conveyor Systems, LLC, 717 F. Appx. 394 (5th Cir. 2017) (applying Louisiana law), the court rejected the plaintiff’s “outdated view[s] of general jurisdiction,” holding instead that “Louisiana law . . . does not require a foreign entity to consent to jurisdiction as a condition of doing business in the state.”  Id. at 398.  See also Mark Doyle Construction, LLC v. TriHM Foundation, LLC, 2018 WL 3763014, at *8 (W.D. La. Aug. 8, 2018) (“without more, the appointment of an agent for service of process and the registration to do business within the state, does not satisfy the criteria to exercise general jurisdiction”); Firefighters’ Retirement System v. Royal Bank of Scotland PLC, 2017 WL 3381227, at *4 n.41 (M.D. La. Aug. 4, 2017) (“being registered as a foreign corporation with the Louisiana Secretary of State’s office is not enough to establish general personal jurisdiction”); Nationwide Signs, LLC v. National Signs, LLC, 2017 WL 2911577, at *3 (E.D. La. July 7, 2017) (“the presence of a registered agent and registered business office is insufficient to support the exercise of general jurisdiction”); Mercury Rents, Inc. v. Crenshaw Enterprises Ltd., 2017 WL 2382483, at *1-2 (W.D. La. May 30, 2017) (“registering to do business in a forum State does not establish general jurisdiction”); J.A.H. Enterprises, Inc. v. BLH Equipment, LLC, 2016 WL 7015688, at *4 (Mag. M.D. La. Oct. 24, 2016) (“Maintaining a license in a state does not necessarily mean that the state has general jurisdiction over the licensed individual.”), adopted, 2016 WL 7031288 (M.D. La. Nov. 30, 2016); Gulf Coast Bank & Trust Co. v. Designed Conveyor Systems, LLC, 2016 WL 4939113, at *3 (M.D. La. Sept. 14, 2016) (“that an entity is registered to do business in a forum State and maintains an agent for service of process in a forum State is insufficient to establish general jurisdiction”); Sciortino v. CMG Capital Management Group., Inc., 2016 WL 4799099, at *3 (E.D. La. Sept. 14, 2016) (state registration to sell securities does not support general jurisdiction); Firefighters’ Retirement System v. Royal Bank of Scotland, PLC, 2016 WL 1254366, at *5 (M.D. La. March 29, 2016) (“Fifth Circuit precedent has consistently held that being qualified to do business in a state and the appointment of a registered agent for service alone cannot support the exercise of general jurisdiction. Such precedent is further strengthened post-[Bauman].”); Long v. Patton Hospitality Management, LLC, 2016 WL 760780, at *4-6 (E.D. La. Feb. 26, 2016) (contacts including registering to do business and maintaining a registered agent for service insufficient to establish general personal jurisdiction); Louisiana Limestone & Logistics, LLC v. Granite Group, 2014 WL 1217956, at *5 (W.D. La. Feb. 28, 2014) (“[Plaintiff] contends that this Court may exercise general jurisdiction over [defendant] because [defendant] registered with the Louisiana Secretary of State. . . .   However, [plaintiff’s] position is not consistent with Fifth Circuit precedent holding that the presence of the registered agent and registered business office alone is insufficient to support the exercise of general jurisdiction.”); Crochet v. Wal-Mart Stores, Inc., 2012 WL 489204, at *4 (W.D. La. Feb. 13, 2012) (no jurisdiction where a defendant’s “only contacts with Louisiana are its registration with the Louisiana Secretary of State to do business and its appointment of an agent for service of process”); DNH, LLC v. In-N-Out Burgers, 381 F .Supp.2d 559, 565 (E.D. La. 2005) (“Qualifying to do business in a state and appointing an agent for service of process there do not . . . sustain an assertion of general jurisdiction”); Lyons v. Swift Transportation Co., 2001 WL 1153001, at *6-7 (E.D. La. Sept. 26, 2001) (“regardless of the existence of an agent for service of process, the exercise of personal jurisdiction over a non-resident defendant must nevertheless comport with the principles of due process”); Jones v. Family Inns of America, 1989 WL 57130, at *1 (E.D. La. May 23, 1989) (“[a]s the defendant’s sole contact with the State of Louisiana is an appointed agent for service of process, the defendant’s contact does not satisfy the minimum contacts requirement of International Shoe”).  See also Taylor v. Arellano, 928 So.2d 55, 58-60 (La. App. 2005) (nonresident corporation was not subject to general jurisdiction based on designation of agent for service, because there was not sufficient contact to satisfy due process, and narrowly construing Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 1187 (La. 1994), which contained dicta that could be read as supportive of general jurisdiction through consent).  We should do all right in Louisiana.


Maine’s registration statute provides that “[t]he appointment or maintenance in this State of a clerk or registered agent does not by itself create the basis for personal jurisdiction” in Maine courts.  Me. Rev. Stat. Ann. tit. 5, §115 (2013).  In Sandstrom v. ChemLawn Corp., 904 F.2d 83 (1st Cir. 1990) (applying Maine law), the defendant’s being licensed to do business in Maine and having an agent for service of process were neither “actually doing business” nor “continuous and substantial” business activity that would allow general personal jurisdiction.  Id. at 89.  Down East looks solid.


Maryland’s statutory framework eliminates consent through registration as a basis for general jurisdiction.  See Md. Code Ann., Corps. & Ass’ns §7-101 (“[w]ith respect to any cause of action on which a foreign corporation would not otherwise be subject to suit in this State, compliance with [the registration statute]” neither renders a foreign corporation “subject to suit” nor is considered “consent by it to be sued” in Maryland.).  Well before Bauman, the Maryland Court of Appeals accordingly rejected general jurisdiction for merely registering to do business and appointing a service agent.  See Republic Properties Corp. v. Mission West Properties, LP, 895 A.2d 1006, 1022 (Md. 2006) (“service of process, in Maryland, upon a resident agent appointed by a foreign corporation will subject the corporation to State court jurisdiction if, in addition to the fact, and validity, of that service, it is shown that the corporation has sufficient contact with the State to make it constitutionally subject to suit here”); Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988) (presence of the agent for service “would not alone be sufficient to subject [defendant] to suit here”).  Other courts applying Maryland law, of course, agree.  Advanced Datacomm Testing Corp. v. PDIO, Inc., 2009 WL 2477559, at *8 (D. Md. Aug. 11, 2009) (Due Process precludes basing general jurisdiction on nothing more than registration/agent for service of process); Tyler v. Gaines Motor Lines, Inc., 245 F. Supp.2d 730, 732 (D. Md. 2003) (“reject[ing] the notion that appointing a registered agent is sufficient to establish general personal jurisdiction over a corporation”).  Maryland looks good.


The Massachusetts registration statute is silent on the issue of consent to jurisdiction over registration for appointment of an agent.  Mass. Gen. L. 156D §15.01.  Federal precedent recognizes that where a “defendant has registered as a foreign corporation to do business in Massachusetts and has named a registered agent for service of process . . . such activities, standing alone, are not enough to confer general personal jurisdiction.”  Fiske v. Sandvik Mining & Construction USA, LLC, 540 F. Supp.2d 250, 256 (D. Mass. 2008) (following Sandstrom (see Maine).  They do, however, “add some modest weight to the jurisdictional analysis.  Id.; accord Grice v. VIM Holdings Group, LLC, 2017 WL 6210891, at *4, 10 (D. Mass. Dec. 8, 2017) (no general jurisdiction; finding registration relevant to specific jurisdiction post-Bauman); Cossart v. United Excel Corp., 2014 WL 4927041, at *2 (D. Mass. Sept. 30, 2014) (“Registration . . . cannot satisfy general jurisdiction’s requirement of systematic and continuous activity.”), rev’d on other grounds, 804 F.3d 13 (1st Cir. 2015) (specific jurisdiction).  There exists, however, a pre-Bauman Massachusetts state trial decision, citing Pa. Firer, and other Pennoyer-era cases, with extensive dicta suggesting that consent by registration was a valid exercise of general jurisdiction.  Galvin v. Jaffe, 2009 WL 884605, at *6-11 (Mass. Super. Jan. 26, 2009) (while defendant was individual corporate officer; consent-by-registration of corporate entities as a basis for general jurisdiction also discussed).  Despite that discordant note, Massachusetts seems favorable.


The Michigan Supreme Court held decades ago that:

[P]rovisions of the [corporate registration] statutes . . . may not be construed as conferring jurisdiction on the courts of this State with reference to causes of action not arising in Michigan, the parties to which are non-residents of the State.  The admission of defendant to carry on business in this State, evidenced by the certificate of authority granted to it, gave to it the status of a domestic corporation engaged in the same business, but did not extend its liability to be sued in a Michigan court to a transitory cause of action arising elsewhere, the plaintiff being a non-resident.

Renfroe v. Nichols Wire & Aluminum Co., 83 N.W.2d 590, 594 (Mich. 1957).  Michigan federal courts have followed.  Johnson v. Sandvik Inc., 2017 WL 3263465, at *3 (E.D. Mich. Aug. 1, 2017) (no general jurisdiction; “that [defendant] is registered to do business in Michigan has no direct connection to plaintiffs’ claims”), reconsideration denied, 2017 WL 3593376 (E.D. Mich. Aug. 21, 2017); Asphalt v. Bagela Baumaschinen GmbH & Co. KG, 2017 WL 1177455, at *4 & n.1 (E.D. Mich. March 30, 2017) (“numerous courts have determined that parties do not consent to general jurisdiction by registering to do business in the state of Michigan, without more”); Magna Powertrain De Mexico S.A. De C.V. v. Momentive Performance Materials USA LLC, 192 F. Supp.3d 824, 830 (E.D. Mich. June 16, 2016) (“Michigan courts have rejected the idea that the registration statutes allow an inference of consent to general personal jurisdiction”); Family Wireless #1, LLC v. Automotive Technologies, Inc., 2015 WL 5142350, at *4 (E.D. Mich. Sept. 1, 2015) (in-state registration, even with other contacts, is “far from sufficient to establish general jurisdiction over Defendant).  Michigan is solid.


Minnesota is one of the few states in which appointment of an agent has been enough to constitute consent to general jurisdiction.  The appellate cases so holding are pre-Bauman, and have not been reconsidered since.  See Rykoff-Sexton, Inc. v. American Appraisal Assoc., Inc., 469 N.W.2d 88, 90 (Minn. 1991) (“[o]nce the defendant has appointed an agent for service of process . . . personal jurisdiction pursuant to the consent of the defendant does not invoke constitutional or long arm statutory analysis”); Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th Cir. 1990) (“appointment of an agent for service of process . . . gives consent to the jurisdiction of Minnesota courts for any cause of action, whether or not arising out of activities within the state”) (applying Minnesota law).  Neither case conducted a Due Process analysis.

Ally Bank v. Lenox Financial Mortgage Corp., 2017 WL 830391 (D. Minn. March 2, 2017), upheld consent through a registration as valid form of general jurisdiction, following Knowlton, and distinguishing Bauman as “address[ing] the limits of general jurisdiction over a foreign corporation, not the limits of a defendant’s capacity to consent to personal jurisdiction.”  Id. at *3.  For other Minnesota post-Bauman applications of jurisdiction by consent under Knowlton, see: Ritchie Capital Management, Ltd. v. Costco Wholesale Corp., 2017 WL 4990520, at *2 (D. Minn. Oct. 30, 2017); Bandemer v Ford Motor Co., 2017 WL 10185684, at *3 (Minn. Dist. May 25, 2017); Edmondson v. BNSF Railway Co., 2015 WL 10528453, at *3-4 (Minn. Dist. May 12, 2015).  Cf. McGill v. Conwed Corp., 2017 WL 4534827, at *8 (D. Minn. Oct. 10, 2017) (no general jurisdiction where corporate registration was revoked).  So far, Minnesota is solid the other way.


Mississippi’s registration statute specifically excludes consent by registration, providing that “appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.”  Miss. Code Ann. §79-35-15 (2013).  This, “[a]lone, [defendant’s] business registration in Mississippi does not establish that it is ‘at home’ in Mississippi.” Mullen v. Bell Helicopter Textron, Inc., 136 F. Supp.3d 740, 744 (S.D. Miss. 2015). Accord Pitts v. Ford Motor Co., 127 F. Supp.3d 676, 683 (S.D. Miss. 2015) (that defendant “is qualified and registered to do business in the State of Mississippi . . . [is] insufficient to establish that [it] is susceptible to general jurisdiction”); Handshoe v. Yount, 2015 WL 7572344, at *4 (S.D. Miss. Nov. 24, 2015) (“registering . . . in Mississippi and appointing a designated corporate agent” not enough for general jurisdiction); Robinson v. Knight Protective Service, Inc., 2014 WL 1326096, at *4 (S.D. Miss. March 31, 2014) (quoting and following Norfolk Southern); Continental First Federal, Inc. v. Watson Quality Ford, Inc., 2009 WL 2032401, at *9-10 (M.D. Tenn. July 9, 2009) (“registering to do business and appointing an in-state agent for service of process do not alone establish general personal jurisdiction over a nonresident”) (applying Mississippi law); Norfolk Southern Railway Co. v. Burlington Northern, 2005 WL 1363210, at *2-3 (S.D. Miss. June 2, 2005) (“reject[ing] the notion that merely registering to do business and appointing an in-state agent for service of process automatically confer general personal jurisdiction over a nonresident defendant”).  Mississippi looks alright on this issue.


Before Bauman, the lower courts in Missouri had been a general jurisdiction by consent hotbed.  No more.  Guided by Cepec (see Delaware), the Missouri Supreme Court rejected general jurisdiction based on corporate registration in State ex. rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017).  “[A] broad inference of consent based on registration would allow national corporations to be sued in every state, rendering [Bauman] pointless.”  Id. at 51.

[Plaintiff’s] arguments blur the distinction between general and specific jurisdiction. . . .  The prior suits against [defendant] were suits based on specific jurisdiction because they concerned injuries that occurred in Missouri or arose out of [defendant’s] activities in Missouri. . . .  Nonetheless, the minimum contacts that suffice to provide specific jurisdiction . . . do not also confer general jurisdiction over a particular company for a non-Missouri-related lawsuit.

Id. at 47.  We discussed Dolan in more detail, here.  Accord State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 232-33 (Mo. 2017) (reiterating that general jurisdiction based on corporate registration “would result in universal personal jurisdiction for corporations complying with registration statutes in many states and would be inconsistent with the holding” of [Bauman]”).

Numerous post-Bauman lower state and federal courts have now reached the same result.  See Perficient, Inc. v. Continuant, Inc., 546 S.W.3d 610, 611 (Mo. App. 2018) (rejecting general jurisdiction by corporate registration); Madlock v. Westar Energy, Inc., 517 S.W.3d 678, 679 (Mo. App. 2017) (following Dolan); Siegfried v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 2778107, at *5 (E.D. Mo. June 27, 2017) (“[c]ompliance with Missouri’s registration statute does not confer personal jurisdiction”); Everett v. Aurora Pump Co., 2017 WL 2778091, at *1 (E.D. Mo. June 27, 2017) (following Dolan; “registration no longer provides a basis for a court to exercise personal jurisdiction over a defendant”); Matthews v. BNSF Railway Co., 2017 WL 2266891, at *2 (W.D. Mo. May 23, 2017) (following Dolan; reconsidering prior decision); Alvarracin v. Volume Services, Inc., 2017 WL 1842701, at *2 (W.D. Mo. May 4, 2017) (“agree[ing] with the findings of those courts who have determined that Knowlton’s [see Minnesota] holding cannot survive in light of” Bauman); MacCormack v. The Adel Wiggins Group, 2017 WL 1426009, at *3-4 (E.D. Mo. April 21, 2017) (similar; overruling prior decisions in same litigation); Addelson v. Sanofi S.A., 2016 WL 6216124, at *4 (E.D. Mo. Oct. 25, 2016) (“personal jurisdiction is not established by appointment of an agent for service of process”; Knowlton not good law post-Bauman); In Re: Zofran (Ondansetron) Products Liability Litigation, 2016 WL 2349105, at *4 (D. Mass. May 4, 2016) (general jurisdiction by consent “would distort the language and purpose of the Missouri registration statute and would be inconsistent with” Bauman) (applying Missouri law); Beard v. Smithkline Beecham Corp., 2016 WL 1746113, at *2 (E.D. Mo. May 3, 2016) (rejecting registration to do business as general jurisdiction by consent; prior precedent no longer valid after Bauman); Hovsepian v. Crane Co., 2016 WL 2997641, at *1-2 (E.D. Mo. April 13, 2016) (no jurisdiction “as to the moving defendants that purportedly are registered to do business in this state”); Keeley v. Pfizer, Inc., 2015 WL 3999488, at *4 (E.D. Mo. July 1, 2015) (“A defendant’s consent to jurisdiction must satisfy the standards of due process and finding a defendant consents to jurisdiction by registering to do business in a state or maintaining a registered agent does not”); Neeley v. Wyeth LLC, No., 2015 WL 1456984, at *3 (E.D. Mo. March 30, 2015) (Bauman “clearly rejects” general jurisdiction based on corporate registration); Smith v. Union Carbide Corp., 2015 WL 191118, at *3 (Mo. Cir. St. Louis City Jan. 12, 2015) (having registered agent “does not automatically establish general personal jurisdiction”).

Before the Missouri Supreme Court’s Dolan decision, some post-Bauman Missouri federal and state courts sought to continue with general jurisdiction by consent, claiming to be bound by Knowlton (see Minnesota), and allowed general jurisdiction by consent based on compliance with corporate registration.  Mitchell v. Eli Lilly & Co., 159 F. Supp.3d 967, 975-79 (E.D. Mo. 2016); Steadfast Insurance Co. v. Schindler Elevator Corp., 2016 WL 7332992, at *2-3 (W.D. Mo. Dec. 16, 2016); Regal Beloit America, Inc. v. Broad Ocean Motor LLC, 2016 WL 3549624, at *4-5 (E.D. Mo. June 30, 2016); Chalkey v. Smithkline Beecham Corp., WL 705134, at *4 (E.D. Mo. Feb. 23, 2016); Jackson v. SmithKline Beecham Corp., 2016 WL 454735, at *1 (E.D. Mo. Feb. 5, 2016); Trout v. SmithKline Beecham Corp., 2016 WL 427960, at *1 (E.D. Mo. Feb. 4, 2016); Gracey v. Janssen Pharmaceuticals, Inc., 2015 WL 2066242, at *3 n.4 (E.D. Mo. May 4, 2015); Hogans v Johnson & Johnson, 2015 WL 10353121, at *6 (Mo. Cir. St. Louis City March 17, 2015).  Cf. Ocepek v. Corporate Transportation, Inc., 950 F.2d 556, 557 (8th Cir. 1991) (pre-Bauman decision extending Knowlton to Missouri law); In re Lipitor (Atorvastatin Calcium) Marketing,, Sales Practices & Products Liability Litigation, 2016 WL 7335739, at *4 (D.S.C. Oct. 26, 2016) (split authority on general jurisdiction by consent meant defendant could not be dismissed as fraudulently joined) (applying Missouri law).  Don’t be fooled by those decisions.  No federal court has permitted a jurisdiction-by-consent theory since the Missouri Supreme Court’s decision in Dolan.


In DeLeon v. BNSF Railway Co., 426 P.3d 1 (Mont. 2018), the Supreme Court of Montana, reached the same result joined other jurisdictions in rejecting general jurisdiction by consent.  “We conclude a company does not consent to general personal jurisdiction by registering to do business in Montana and voluntarily conducting in-state business activities.”  Id. at 4 (Mont. 2018).  DeLeon distinguished corporate registration from other types of “consent” that courts actually recognize:

Registration-based consent is distinguishable from other types of consent jurisdiction in its breadth.  It permits a court to obtain general personal jurisdiction over a defendant − it is not limited to one case or one contract.

Id. at 6 (emphasis added).  Dismissing pre-[Bauman] decisions as outdated, DeLeon held:

[E]xtending general personal jurisdiction over all foreign corporations that registered to do business in Montana and subsequently conducted in-state business activities would extend our exercise of general personal jurisdiction beyond the narrow limits recently articulated by the Supreme Court. . . . Every state requires foreign corporations doing in-state business to register. . .   Reading our registration statutes to confer general personal jurisdiction over foreign corporations would swallow the Supreme Court’s due process limitations on the exercise of general personal jurisdiction, and we accordingly refuse to do so.

Id. at 8-9 (citations omitted).

The relevant Montana statute provides: “The appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in the state.” Mont. Code Ann. §35-7-105.  Thus, even before Bauman, the Ninth Circuit declined to permit consent through registration under Montana law.  King v. American Family Mutual Insurance Co., 632 F.3d 570, 579 (9th Cir. 2011) (where the nonresident defendant’s “sole contacts” were “Certificates of Authorization and . . . an agent for service of process” they could not support general jurisdiction) (applying Montana law).  Montana is now rock solid.


Under Nebraska law, “[b]y designating an agent upon whom process may be served within [the] state, a defendant has consented to the jurisdiction in personam by the proper court.”  Mittelstadt v. Rouzer, 328 N.W.2d 467, 469 (Neb. 1982); see also Ytuarte v. Gruner & Jahr Printing & Publishing Co., 935 F.2d 971, 973 (8th Cir. 1991) (appointment of an agent for service of process by corporate defendants gives consent to the jurisdiction of a state’s courts for any cause of action, whether or not arising out of activities within the state) (applying Nebraska law).  Post-Bauman Nebraska decisions have not retreated from general jurisdiction by consent.  See, e.g., Consolidated Infrastructure Group, Inc. v. USIC, LLC, 2017 WL2222917, at *7 (D. Neb. May 18, 2017) (“[o]ne of the most solidly established ways of giving . . . consent [to general jurisdiction] is to designate an agent for service of process within the State”; citing Knowlton (see Minnesota)); Perrigo Co. v. Merial Ltd., 2015 WL 1538088, at *7 (D. Neb. April 7, 2015) (allowing general jurisdiction based on consent through registration).  Nebraska is another of the few states firmly in the expansive jurisdiction category.


Well before Bauman, the Nevada Supreme Court has held that a foreign corporation’s compliance with the state’s registration statute does not “in itself subject a nonresident . . . company to the personal jurisdiction of Nevada Courts.”  Freeman v. Second Judicial Dist. Court, 1 P.3d 963, 968 (Nev. 2000) (“[o]ther courts and legal scholars have agreed that the mere act of appointing an agent to receive service of process, by itself, does not subject a non-resident corporation to general jurisdiction”).  Accord Hunt v. Auto-Owners Insurance Co., 2015 WL 3626579, *5 n.2 (D. Nev. June 10, 2015) (“corporate licensure and amenability to service of process” “in Nevada does not establish personal jurisdiction”); cf. Corbo v. Laessig, 2011 WL 1327680, at *5 (D. Nev. April 6, 2011) (under Freeman registration as an insurance agent does not create general jurisdiction); contra Knudsen v. Queenstake Resources U.S.A., Inc., 2010 WL 11571247, at *4 (D. Nev. May 24, 2010) (“[t]hough the weight of authority comes out to the contrary, the Court holds that [defendant] consented to personal jurisdiction in Nevada by registering to do business”).  Despite one pre-Bauman contrary voice, Nevada is solid.

New Hampshire

New Hampshire’s registration statute, N.H. Rev. Stat. §293-A:15.01, does not provide that a nonresident defendant’s compliance results in its consent to general jurisdiction.  The First Circuit has held that “[c]orporate registration in New Hampshire adds some weight to the jurisdictional analysis, but it is not alone sufficient to confer general jurisdiction.”  Cossaboon v. Maine Medical Center, 600 F.3d 25, 37 (1st Cir. 2010) (applying New Hampshire law).  Cossaboom did not address Holloway v. Wright & Morrissey, Inc., 739 F.2d 695 (1st Cir. 1984), wherein an entirely non-constitutional analysis interpreted a prior New Hampshire’s statute, “at least where litigation is causally connected to a defendant’s acts in New Hampshire,” corporate registration constituted “consent to jurisdiction.”  Id. at 699.  The caveat makes clear that Holloway was a specific jurisdiction case, as it refused to rule on whether registration “would authorize a suit on a cause of action that has no relationship to the state of New Hampshire.”  Id.  Cossaboon is much more on point than Holloway, so we put New Hampshire in the anti-consent majority.

New Jersey

The New Jersey Supreme Court has yet to pass on general jurisdiction by consent, but since Bauman, the Appellate Division did in Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 164 A.3d 435 (N.J. App. Div.), certif. denied, 173 A.3d 596 (N.J. 2017).

[W]e conclude reliance of an entity’s business registration to establish general jurisdiction is belied by the holding set forth in [Bauman’s] clear narrow application of general jurisdiction. Personal jurisdiction over a foreign corporation to answer for a cause of action unrelated to the entity’s conduct in the forum, i.e., general jurisdiction, requires a plaintiff establish the corporation is “at home” in the forum, a standard established in Goodyear and clarified in [Bauman]. A plaintiff must show more than that the defendant engaged in some business or complied with corporate registration requirements of the forum.

*          *          *          *

In light of [Bauman], we reject the application of [pre-Bauman precedent] as allowing general jurisdiction solely based on the fiction of implied consent by a foreign corporation’s compliance with New Jersey’s business registration statute. Registration is required to conduct any level of business. Importantly, the exercise of general jurisdiction requires satisfaction of the “continuous and systematic contacts” to comply with due process. Mere registration to conduct some business is insufficient.

Id. at 444-46 (citations omitted).

Although some New Jersey federal courts allowed consent by registration before Dutch Run, the majority did not.  See Metropolitan Group Property & Casualty Insurance Co. v. Electrolux Home Products, Inc., 2018 WL 2422023, at *2 (D.N.J. May 29, 2018) (“to conclude that a corporation consents to personal jurisdiction based solely on registration would be inconsistent with” Bauman); Horowitz v. AT&T, Inc., 2018 WL 1942525, at *12 (D.N.J. April 25, 2018) (“consent by registration is inconsistent with” Daimler; registration-based general personal jurisdiction “developed from an outmoded way of thinking about jurisdiction” and is “inconsistent with the Supreme Court’s recent Daimler decision”); Fundamental Innovation Systems International LLC v. LG Electronics, Inc., 2018 WL 279091, at *2 (Mag. E.D. Tex. Jan. 3, 2018) (“registering to do business in New Jersey or appointing an agent for service of process is not sufficient to confer general jurisdiction”) (applying New Jersey law), adopted, 2018 WL 837711, at *2 (E.D. Tex. Feb. 13, 2018) (“the mere fact that [a company] is registered to do business in New Jersey and appointed an agent to receive process does not mean that it is subject to general jurisdiction in New Jersey”); Boswell v. Cable Services Co., 2017 WL 2815077, at *4-6 (D.N.J. June 28, 2017) (corporation’s registration to do business did “not mean it consented to general jurisdiction in New Jersey”); Display Works, LLC, v. Bartley, 182 F. Supp.3d 166, 175-76 (D.N.J. 2016) (“the doctrinal refinement reflected in . . . the [Supreme] Court’s 21st century approach to general and specific jurisdiction” has replaced “sweeping interpretation[s]” of “routine registration statute[s]”; “Pa. Fire . . . cannot be squared with” Bauman); Singh v. Diesel Transportation, LLC, 2016 WL 3647992, at *3 (D. N.J. July 7, 2016) (“reject[ing] Plaintiff’s argument that compliance with [a statutory] designation of agent requirement renders [defendant] susceptible to general jurisdiction in New Jersey”); Barrera v. Hitachi Koki U.S.A., Ltd., 2015 WL 12839496, at *2 (D.N.J. Oct. 29, 2015) (corporate registration does “not subject [defendant] to general jurisdiction in New Jersey”); McCourt v. A.O. Smith Water Products Co., 2015 WL 4997403, at *4 (D.N.J. Aug. 20, 2015) (“The single fact that Defendant registered to do business in New Jersey is insufficient to conclude that it ‘consented’ to jurisdiction here.”); Kubin v. Orange Lake Country Club, Inc., 2010 WL 3981908, at *3 (D.N.J. Oct. 8, 2010) (“[f]iling a certificate to do business in New Jersey is insufficient to establish general jurisdiction”); Davis v. Quality Carriers, Inc., 2009 WL 3335860, at *3 (D.N.J. Oct. 15, 2009) (rejecting jurisdiction by consent by designation of agent for service of process under federal statute); Smith v. S&S Dundalk Engineering Works, Ltd., 139 F. Supp.2d 610, 620 n.6 (D.N.J. 2001) (“fil[ing]a certificate to do business in New Jersey . . . would still be insufficient to establish general jurisdiction”); Atkinson & Mullen Travel Inc. v. New York Apple Tours Inc., 1998 WL 750355, at *2 (D.N.J. Sept. 16, 1998) (corporate registration not “in and of itself sufficient to establish continuous and substantial contacts” for general jurisdiction).

Except for a 2014 state trial court decision overruled by Dutch Run, the only post-Bauman New Jersey cases allowing jurisdiction-by-consent based on registration were all pharmaceutical patent cases decided prior to the Federal Circuit’s decision in Acorda Therapeutics Inc. v. Mylan Pharmaceuticals, Inc., 817 F.3d 755 (Fed. Cir. 2016), which declined to base general jurisdiction on this basis.  See Senju Pharmaceutical Co. v. Metrics, Inc., 96 F. Supp.3d 428, 436-37 (D.N.J. 2015) (following Pa. Fire); Otsuka Pharmaceutical Co. v. Mylan Inc., 2015 WL 1305764, at *8-11 (D.N.J. March 23, 2015) (same).

Unless and until the New Jersey Supreme Court messes things up, New Jersey now looks strong against jurisdiction by consent.

New Mexico

A long time ago, the Tenth Circuit, interpreting New Mexico law, held:

The relevant New Mexico statute . . . does not specifically provide that foreign corporations are made subject to process for causes of action not resulting from the corporations’ activities in New Mexico. . . .  The Supreme Court . . . indicated a preferential construction of foreign corporation process statutes which excludes their operation if the cause of action does not arise out of business done by the corporation in the state. . . .  [The New Mexico statute] d[oes] not extend to causes of action not arising out of business done by the corporation in New Mexico. . . .  [C]onsidering the Supreme Court’s preferential construction, we cannot say that [the statute] extends to causes of action not arising out of corporations’ New Mexico business.

Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir. 1975) (applying New Mexico law) (citations omitted).

However, more recent New Mexico precedent is to the contrary.  Werner v. Wal-Mart Stores, Inc., 861 P.2d 270, 272-73 (N.M. App. 1993), interpreted a registration statute and concluded that “without an express limitation, the legislature intended [New Mexico’s registration statute] to apply to any claims against a foreign corporation with a registered agent in New Mexico.”  Id. at 1200.  Werner further held that due process analysis was not necessary.  Id. (citing Knowlton, 900 F.2d at 1200 (see Minnesota)).  A pre-Bauman district court decision, Fireman’s Fund Insurance Co. v. Thyssen Mining Construction, Ltd., 2011 WL 13085934, at *2-3 (D.N.M. July 29, 2011), opted to follow Werner in preference to Budde, but was itself reversed on other grounds, Fireman’s Fund Insurance Co. v. Thyssen Mining Construction, Ltd., 703 F.3d 488 (10th Cir. 2012).  Finally, the only post-Bauman decision, Brieno v. Paccar, Inc., 2018 WL 3675234 (D.N.M. Aug. 2, 2018), chose to stick with Werner . Id. at *3-4.  With this kind of split, we put New Mexico in the unsettled category.

New York

Decades before Bauman, back in the Pennoyer days of Pa. Fire, the New York Court of Appeals allowed general jurisdiction by consent.  Bagdon v. Philadelphia & Reading Coal & Iron Co., 111 N.E. 1075, 1077 (N.Y. 1916).  While Bagdon has not been expressly overruled, the Supreme Court in Bauman targeted a different New York state decision with its comment that “cases from” the Pennoyer era dominated “should not attract heavy reliance today.”  571 U.S. at 138 n.18 (citing Tauza v. Susquehanna Coal Co., 115 N.E. 915 (N.Y. 1917), as an example) . Thus, the Second Circuit has twice observed that Bauman “expressly cast doubt” on old, expansive New York jurisdictional precedent.  SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 343 (2d Cir. 2018) (applying New York law); Gucci America, Inc. v. Li, 768 F.3d 122, 135 (2d Cir. 2014).

The only directly on point appellate New York decision is Gucci America, Inc. v. Weixing Li, 768 F.3d 122, (2d Cir. 2014), a third-party discovery decision that, post-Bauman, treated registration/“consent” as a specific, and not general, jurisdiction issue:

Even without general personal jurisdiction, the district court may be able to require [third-party] compliance . . . by exercising specific jurisdiction.15

15 The district court may also consider whether [third-party] has consented to personal jurisdiction in New York by applying for authorization to conduct business in New York and designating the New York Secretary of State as its agent for service of process.

Id. at 136 n.15 (citing, inter alia Bagdon).  The Second Circuit’s decision in Brown (see Connecticut) has also been influential with post-Bauman New York trial courts.

And the New York trial courts have been active, issuing a spate of decisions.  A distinct majority of these post-Bauman New York cases have recognized that general jurisdiction can no longer constitutionally be obtained by “consent” amounting to nothing more than registration to do business in New York.  One noteworthy decision is Minholz v. Lockheed Martin Corp., 227 F. Supp.3d 249 (N.D.N.Y. 2016), which concluding after a lengthy discussion of conflicting precedents – particularly Brown (see Connecticut) − that general jurisdiction can no longer be created by registration to do business.

[T]the Supreme Court’s shift in the general jurisdiction analysis over foreign corporations from the “minimum contacts” review described in International Shoe to the more demanding “essentially at home” test enunciated in [Bauman] − suggests that federal due process rights likely con strain an interpretation that transforms a run-of-the-mill registration and appointment statute into a corporate “consent” to the exercise of general jurisdiction.

Id. at 264 (citations and quotation marks omitted).

Other post-Bauman New York decisions rejecting general jurisdiction by “consent” resting upon corporate registration are:  FederalHitachi Data Systems Credit Corp. v. Precision Discovery, Inc., ___ F. Supp.3d ___, 2018 WL 4284290, at *5 (S.D.N.Y. Sept. 7, 2018) (“Courts have often noted that allegations similar to those Precision makes here – particularly in regard to maintaining an office in New York and registering to do business in the state – are not sufficient to provide general jurisdiction after [Bauman].”); Indelicato v. Liberty Transportation, Inc., 2018 WL 3934074, at *5, 7 (W.D.N.Y. Aug. 16, 2018) (registration to do business, even with other in-state contacts, insufficient to create general jurisdiction); Sonterra Capital Master Fund Ltd. v. Credit Suisse Group AG, 277 F. Supp.3d 521, 586-87 (S.D.N.Y. 2017) (rejecting registration to do business under banking statute as consent to general jurisdiction); Wilderness USA, Inc. v. DeAngelo Brothers LLC, 265 F. Supp.3d 301, 310-14 (W.D.N.Y. 2017) (rejecting general jurisdiction by consent; “this doctrine has been invalidated by the Supreme Court’s decision in Daimler”); Sae Han Sheet Co. v. Eastman Chemical Corp., 2017 WL 4769394, at *6 (S.D.N.Y. Oct. 19, 2017) (“corporations do not consent to general jurisdiction when they register under the various New York registration statutes”); Spratley v. FCA US LLC, 2017 WL 4023348, at *3-4 (N.D.N.Y. Sept. 12, 2017) (“Since every state in the union has a business registration statute, treating the registration to do business in a state as an implicit consent to general jurisdiction must also be ‘unacceptably grasping.’”); Australia & New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 WL 3841874, at *3-4 (S.D.N.Y. Sept. 1, 2017) (“a foreign corporation did not consent to the exercise of general jurisdiction simply by registering to do business and appointing an agent”; third-party discovery case); FrontPoint Asian Event Driven Fund, L.P. v. Citibank, N.A., 2017 WL 3600425, at *3-5 (S.D.N.Y. Aug. 18, 2017) (“Plaintiffs may not use New York’s [banking] registration statute as a basis for asserting general jurisdiction over the Foreign Defendants”); Famular v. Whirlpool Corp., 2017 WL 2470844, at *4 (S.D.N.Y. June 7, 2017) (“the reasoning [of pre-Bauman precedent was] incomplete and unpersuasive in that those cases did “not meaningfully analyze the impact of [the] watershed case”); Justiniano v. First Student Management LLC, 2017 WL 1592564, at *6 (E.D.N.Y. April 26, 2017) (jurisdiction by consent “has been placed in serious doubt” by recent Supreme Court precedent); Sullivan v. Barclays PLC, 2017 WL 685570, at *39-40 (S.D.N.Y. Feb. 21, 2017) (no consent to general jurisdiction based on registration under banking statute); Weiss v. National Westminster Bank PLC, 176 F. Supp.3d 264, 277 & n.7 (E.D.N.Y. 2016) (same); Strauss v. Credit Lyonnais, S.A., 175 F. Supp.3d 3, 17 & n.7 (E.D.N.Y. 2016) (same); Taormina v. Thrifty Car Rental, 2016 WL 7392214, at *6 (S.D.N.Y. Dec. 21, 2016) (applying Brown to New York law; prior precedent not valid after Bauman); Bonkowski v. HP Hood, LLC, 2016 WL 4536868, at *3 (E.D.N.Y. Aug. 30, 2016) (following Brown; pre-Bauman jurisdiction by consent precedent no longer viable); In re Foreign Exchange Benchmark Rates Antitrust Litigation, 2016 WL 1268267, at *2 (S.D.N.Y. March 31, 2016) (registration to do business not “broad” consent to jurisdiction); Motorola Credit Corp. v. Uzan, 132 F. Supp.3d 518, 521-22 (S.D.N.Y. 2015) (“satisfaction of any [state] licensing requirements [] is not constitutionally sufficient to establish general jurisdiction”); Chatwal Hotels & Resorts LLC v. Dollywood Co., 90 F. Supp.3d 97, 105 (S.D.N.Y. 2015) (“the mere fact of [defendant’s] being registered to do business is insufficient to confer general jurisdiction in a state that is neither its state of incorporation or its principal place of business”); 7 W. 57th Street Realty Co., LLC v. Citigroup, Inc., 2015 WL 1514539, at *11 (S.D.N.Y. March 31, 2015) (state bank registration insufficient to confer general jurisdiction).  StateKyowa Seni Co. v ANA Aircraft Technics, Co., 80 N.Y.S.3d 866, 869-70 (N.Y. Sup. 2018) (agreeing with “most New York courts [that] have rejected general jurisdiction by consent based on corporate registration”); Fekah v. Baker Hughes, Inc., 2018 WL 4257338, at *3-4 (N.Y. Sup. Sept. 6, 2018) (under Bauman, corporate registration does not confer general jurisdiction); New York City Asbestos Litigation, 2018 WL 3859695, at *2-3 (N.Y. Sup. Aug. 14, 2018) (“The mere fact [defendant] is registered to do business in New York, after [Bauman], is insufficient to confer general jurisdiction in New York over the corporation.”); New York City Asbestos Litigation, 2018 WL 3697142, at *4 (N.Y. Sup. Aug. 3, 2018) (same); New York City Asbestos Litigation, 2018 WL 3575072, at *2-3 (N.Y. Sup. July 25, 2018) (same); New York City Asbestos Litigation, 2018 WL 3145929, at *4-5 (N.Y. Sup. June 27, 2018) (same); New York City Asbestos Litigation, 2018 WL 3158514, at *2-3 (N.Y. Sup. June 27, 2018) (same); Amelius v. Grand Imperial LLC, 64 N.Y.S.3d 855, 865-69 (N.Y. Sup. 2017) (defendant “is not subject to general jurisdiction merely because it has registered to do business here”); Mischel v. Safe Haven Enterprises, LLC, 2017 WL 1384214, at *5 (N.Y. Sup. April 17, 2017) (general jurisdiction based on registration to do business is improperly “coercive” after Bauman), reversed on other grounds, 74 N.Y.S.3d 496 (N.Y.A.D. 2018) (specific jurisdiction); Ace Decade Holdings Ltd. v UBS Ag, 2016 WL 7158077, at *5 (N.Y. Sup. Dec. 7, 2016) (defendant “is not subject to general jurisdiction in New York for registration to do business); Gliklad v. Bank Hapoalim B.M., 2014 WL 3899209, at *1 (N.Y. Sup. Aug. 4, 2014) (under Bauman bank registration statute “provid[es] for the exercise of specific jurisdiction, not general”).  Cf. In re Del Valle Ruiz, ___ F. Supp.3d ___, 2018 WL 5095672, at *5-6 (S.D.N.Y. Oct. 19, 2018) (that bank “is supervised by the New York State Department of Financial Service” and had numerous other contacts insufficient to support general personal jurisdiction); Hood v. Ascent Medical Corp., 2016 WL 1366920, at *9-10 (Mag. S.D.N.Y. March 3, 2016) (no general jurisdiction by consent created by forum selection clause), adopted, 2016 WL 3453656, at *2 (S.D.N.Y. June 20, 2016 (same) aff’d on other grounds, 691 F. Appx. 8 (2d Cir. 2017); Magdalena v. Lins, 999 N.Y.S.2d 44, 45 (N.Y.A.D. 2014) (no general jurisdiction by consent via forum selection clause); Chambers v. Weinstein, 2014 WL 4276910, at *16, 997 N.Y.S.2d 668 (table) (N.Y. Sup. Aug. 22, 2014) (under Bauman, attorney “not subject to [general] personal jurisdiction merely by virtue of having once been admitted to the Bar of the State of New York”).

Contrary post-Bauman decisions that continue to follow Bagdon are:  Beach v. Citigroup Alternative Investments, 2014 WL 904650, at *6 (S.D.N.Y. March 7, 2014); Wheeler v. CBL & Associates Properties, Inc., 2017 WL 3611295, at *2-3 (N.Y. Sup. Aug. 17, 2017); Serov v. Kerzner International Resorts, Inc., 43 N.Y.S.3d 769 (table), 2016 WL 4083725, at *4-5 (N.Y. Sup. July 26, 2016); Aybar v. Aybar, 2016 WL 3389890, at *3-4 (N.Y. Sup. May 25, 2016); Corporate Jet Support, Inc. v. Lobosco Insurance Group, LLC, 2015 WL 5883026, at *2 (N.Y. Sup. Oct. 7, 2015); Fallman v. Hotel Insider Ltd., 2016 WL 316378, at*2 (S.D.N.Y. Jan. 15, 2016); Bailen v. Air & Liquid Systems Corp., 2014 WL 3885949, at *4-5 (N.Y. Sup. Aug. 5, 2014).

With the pro-Bagdon cases almost extinct for the last couple of years, New York looks pretty firm, particularly in federal court.

North Carolina

Decades before Bauman, the North Carolina Supreme Court held that “the casual presence of the corporate agent or even his conduct of single or isolated activity in a state in the corporation’s behalf are not enough to subject it to suit on causes of action unconnected with the activities there.”  Byham v. National Cibo House Corp., 143 S.E.2d 225, 231 (N.C. 1965). Other courts likewise refuse to construe North Carolina’s registration statute – which does not discuss jurisdiction – as authorizing jurisdiction on the basis of a foreign corporation’s registration alone.  Debbie’s Staffing Services, Inc. v. Highpoint Risk Services, LLC, 2018 WL 1918603, at *3 (M.D.N.C. April 20, 2018) (“Long-standing precedent forecloses [plaintiff’s] argument that [defendant’s] registration to do business in North Carolina is sufficient to subject it to the general jurisdiction of this Court.”); Sebastian v. Davol, Inc., 2017 WL 3325744, at *11 (W.D.N.C. Aug. 3, 2017) (North Carolina statute “contains no reference to jurisdiction by consent”; finding “no decision − state or federal − construing North Carolina’s registration or licensing statutes to extend personal jurisdiction over registered businesses”); JPB Installers, LLC v. Dancker, Sellew & Douglas, Inc., 2017 WL 2881142, at *4 (M.D.N.C. July 6, 2017) (same as Debbie’s Staffing); Public Impact, LLC v. Boston Consulting Group, Inc., 117 F. Supp.3d 732, 740 (M.D.N.C. 2015) (there is “no decision − State or federal − construing North Carolina’s registration statute to extend personal jurisdiction over registered businesses”); Thompson v. Mission Essential Personnel, LLC, 2013 WL 6058308, at *2 n. 1 (Mag. M.D.N.C. Nov. 14, 2013) (“registration to do business in the state alone is not the deciding factor on which jurisdiction should be determined”), adopted, 2014 WL 4745947 (M.D.N.C. Sept. 23, 2014).  Rock solid.

North Dakota

The North Dakota statute provides that “[t]he appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.”  N.D. Cent. Code §§10-01.1-15.  Thus, “[m]ere registration to transact business in North Dakota does not render [defendant] subject to general jurisdiction in the state.”  HomeRun Products, LLC v. Twin Towers Trading, Inc., 2017 WL 4293145, at *4 (D.N.D. Sept. 27, 2017).  North Dakota looks solid.


Ohio State and federal courts have held that designating an agent for service is insufficient to warrant consent to general jurisdictions.  The United States Supreme Court determined that, were Ohio to treat the designation of an agent for service of process as consent to general jurisdiction, that result would violate the Commerce Clause:

[A] designation with the Ohio Secretary of State of an agent for the service of process [that] likely would have subjected [defendant] to the general jurisdiction of Ohio courts over transactions in which Ohio had no interest . . . is an unreasonable burden on commerce.

Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 895 (1988).

That Ohio courts would do something like that is highly unlikely.  In Wainscott v. St. Louis-S.F. Railway Co., 351 N.E.2d 466, 471 (Ohio 1976), the Ohio Supreme Court stated that the “consent theory” of personal jurisdiction only extends to claims based on minimum contacts with the forum, reversing the appellate court’s denial of a motion to dismiss for lack of jurisdiction.  Older, Pennoyer-era thinking has been “displaced”:

The problem presented in this case arises from the decision of the United States Supreme Court in International Shoe. . . .  The court, in International Shoe, described the various fictions inherent in the doctrines of presence and consent and the problems associate with the application of the ‘doing business’ standard. While the court did not establish definite criteria for determining when a state’s in personam jurisdiction over a foreign corporation could be invoked, it did displace the doctrines of consent and presence as constitutional grounds for in personam jurisdiction.

Id. at 472.  See also Pittock v. Otis Elevator Co., 8 F.3d 325, 329 (6th Cir. 1993) (following Wainscott; plaintiffs “cannot assert personal jurisdiction over [defendant] based on consent”) (applying Ohio law); Avery Dennison Corp. v. Alien Tech. Corp., 632 F. Supp. 2d 700, 711 n.7 (N.D. Ohio 2008) (“It appears that registration to do business in Ohio is simply one fact to consider in analyzing personal jurisdiction.”).  These cases indicate that the recent contrary decision in Grubb v. Day to Day Logistics, Inc., 2015 WL 4068742, at *3 (S.D. Ohio July 2, 2015), is wrongly decided and based on obsolete precedent.  Between the United States Supreme Court, the Ohio Supreme Court, and the Sixth Circuit, Ohio belongs in the anti-consent column.


Oklahoma’s registration statute is silent on whether registration constitutes consent to jurisdiction.  Okla. Stat. tit. 18 §1022.  Oklahoma state courts have yet to address this issue, but a federal district court acknowledged the lack of state precedent,and followed Bauman, holding that mere registration to do business is insufficient to establish general jurisdiction, dismissing the prescription pharmaceutical product liability claims of nonresident plaintiffs.  Aclin v. PD-RX Pharmaceuticals, Inc., 189 F. Supp.3d 1294, 1305 (W.D. Okla. 2016) (recognizing the Supreme Court’s and Tenth Circuit’s “preferential construction,” and declining “to exercise general jurisdiction over the Defendants on the basis of their registration in Oklahoma”).  Aclin relied on Samuelson v. Honeywell, 863 F. Supp. 1503, 1507 (E.D. Okla. 1994), a pre-Bauman case holding that “compliance by [defendant] with Oklahoma statutory requirements for conducting business in Oklahoma does not automatically subject [it] to the jurisdiction of the State of Oklahoma in a suit unrelated to its Oklahoma contacts.”  Id. at 1507.   See also In re Darvocet, Darvon & Propoxyphene Products Liability Litigation, 2012 WL 1345175, at *5 (E.D. Ky. April 18, 2012) (rejecting general jurisdiction by consent under pre-Bauman Oklahoma law).

Other Oklahoma law cases rejecting general jurisdiction by consent post-Bauman are:  Tarver v. Ford Motor Co., 2016 WL 7077045, at *3 (W.D. Okla. Dec. 5, 2016) (rejecting, as “unacceptably grasping” argument that defendant “voluntarily] subjects itself to the jurisdiction of Oklahoma courts” because it “maintained its corporate registration with the Oklahoma Secretary of State since 1920”), certification denied, 2017 WL 9477739 (W.D. Okla. March 10, 2017), reconsideration denied, 2017 WL 3527710 (W.D. Okla. Aug. 16, 2017); Guillette v. PD-RX Pharmaceuticals, Inc., 2016 WL 3094073, at *8 (W.D. Okla. June 1, 2016) (same as Aclin); Manning v. PD-RX Pharmaceuticals Inc., 2016 WL 3094075, at *7-8 (W.D. Okla. June 1, 2016) (same as Aclin); Nauman v. PD-RX Pharmaceuticals Inc., 2016 WL 3094081, at *7-8 (W.D. Okla. June 1, 2016) (same as Aclin).

Oklahoma is OK.


In Figueroa v. BNSF Railway Co., 390 P.3d 1019 (Or. 2017), the Oregon Supreme Court “conclude[d] that appointing a registered agent to receive service of process merely designates a person upon whom process may be served. It does not constitute implied consent to the jurisdiction of the Oregon courts.”  Id. at 1021-22.  See also Lanham v. Pilot Travel Centers, LLC, 2015 WL 5167268, at *11 (D. Or. Sept. 2, 2015) (“nothing in Oregon law supports a conclusion that compliance with these statutes confers general personal jurisdiction over a nonresident defendant for conduct occurring outside Oregon”).  Another post-Bauman state high court ruling controls the issue in Oregon.


Due to a 1978 amendment (see P.L. 202, No. 53 §10(60)) to its long-arm statute, 42 Pa. C.S.A. §5301, Pennsylvania’s statute uniquely specifies that corporate registration confers “general personal jurisdiction”:

(a) General rule. − The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction. . . .

*          *          *          *

(2) Corporations. −

(i) Incorporation under or qualification as a foreign corporation under the laws of this Commonwealth.

(ii) Consent, to the extent authorized by the consent.

(Emphasis added).  Based almost entirely on this state statute, most Pennsylvania courts currently enforce general jurisdiction based on nothing more than corporate registration.

Most importantly, in the pre-Bauman decision, Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991), the Third Circuit held that, “[b]y registering to do business in Pennsylvania, [defendant] ‘purposefully avail[ed] itself of the privilege of conducting activities within’” Pennsylvania.  Id. at 640 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).  Further, corporate registration “can be viewed as its consent to be sued” and “[c]onsent is a traditional basis for assertion of jurisdiction long upheld as constitutional.”  Id. at 641 (citations omitted).

We hold that because [defendant] was authorized to do business in Pennsylvania, it was subject to the exercise of personal jurisdiction by Pennsylvania courts under section 5301(a)(2)(i) or (ii). The . . . statute gave [defendant] notice that was subject to personal jurisdiction in Pennsylvania and thus it should have been “reasonably able to anticipate being haled into court” in Pennsylvania.

Id. (citations omitted).

Notwithstanding Bauman, in Bors v. Johnson & Johnson, 208 F. Supp.3d 648 (E.D. Pa. 2016), the court determined that the Supreme Court had “eliminate consent to general personal jurisdiction over a corporation registered to do business in Pennsylvania.”  Id. at 653.  “Consent” was considered a “separate” basis for general jurisdiction outside the Supreme Court’s “at home” standard.  Id. (quoting Acorda Therapeutics (see Delaware – as we discuss there, Delaware has since reversed its position).  The big difference between Pennsylvania every other state, held Bors, was the “notice” provided by the 1978 amendment to the Pennsylvania statute:

Pennsylvania’s statute specifically advises the registrant of the jurisdictional effect of registering to do business. . . .  [L]ong after Pennsylvania enacted its specific notice statute and after our Court of Appeals confirmed personal jurisdiction based on registration, [defendant] elected to register to do business in Pennsylvania as a foreign corporation.  [Defendant’s] compliance with Pennsylvania’s registration statute amounted to consent to personal jurisdiction.

Id. at 655.  We discussed Bors in more detail here.

Most subsequent Pennsylvania decisions have parroted the rationales in Bane and Bors although they differ in some details.  See Murray v. American Lafrance, LLC, ___ A.3d ___, 2018 WL 4571804, at *3 (Pa. Super. Sept. 25, 2018) (two paragraphs following Bane/Bors); Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133, 1138-39 (Pa. Super. June 28, 2018) (“guided by” Bors/Gorton, but extending general personal jurisdiction to “acts committed prior to registration” when the corporate defendant conducted no in-state activity at all); Gorton v. Air & Liquid Systems Corp., 303 F. Supp.3d 278, 295-99 (M.D. Pa. 2018) (following Bane/Bors notice analysis of §5301(a); consent only applicable after 1978 amendment); Aetna Inc., v. Mednax, Inc., 2018 WL 5264310, at *5 (E.D. Pa. Oct. 23, 2018) (following Bane/Bors); Pager v. Metropolitan Edison, 2018 WL 491014, at *2 (M.D. Pa. Jan. 19, 2018) (citing Bane); Mendoza v. Electrolux Home Products, Inc., 2017 WL 5010352, at *5 (E.D. Cal. Nov. 2, 2017) (following Bors) (applying Pennsylvania law); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147, at *10-11 (E.D. Pa. July 24, 2017) (citing Bane/Bors); Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *3 (E.D. Pa. June 13, 2017) (same); Kukich v. Electrolux Home Products, Inc., 2017 WL 345856, at *6 (D. Md. Jan. 24, 2017) (following Bors) (applying Pennsylvania law).  The temporally unbounded consent rationale adopted in Webb-Benjamin is even more radical and expansive than what the Supreme Court rejected as “overly grasping” and “exorbitant” in Bauman, since mere registration alone, absent any actual business activity, supposedly gives rise to general jurisdiction.  Cf. George v. A.W. Chesterton Co., 2016 WL 4945331, at *2-3 (W.D. Pa. Sept. 16, 2016) (general jurisdiction not created, even under Bane, by registration after an alleged injury).

However, some Post-Bauman courts have rejected the proposition that mere registration to do business in Pennsylvania can be a sufficient basis for general jurisdiction.  Antonini v. Ford Motor Co., 2017 WL 3633287, at *2 n.2 (M.D. Pa. Aug. 23, 2017) (“regist[ration] to do business in Pennsylvania” among other contacts, was “insufficient to establish general jurisdiction” in Pennsylvania); McCaffrey v. Windsor at Windermere Ltd. Partnership, 2017 WL 1862326, at *4 (E.D. Pa. May 8, 2017) (Pennsylvania corporate registration did not show “contacts with Pennsylvania [that] are so continuous and systematic as to render them essentially at home”) (citation and quotation marks omitted); Spear v. Marriott Hotel Services, Inc., 2016 WL 194071, at *2 (E.D. Pa. Jan. 15, 2016) (no general personal jurisdiction based “solely on the fact that defendants are registered to do business” in Pennsylvania); Osadchuk v. CitiMortgage, 2015 WL 4770813, at *2 (E.D. Pa. Aug. 12, 2015) (registered agent in Pennsylvania not enough for general jurisdiction); Mallory v. Norfolk Southern Railway Co., 2018 WL 3043601, at *4-5 (Pa. C.P. May 30, 2018) (“federalism prevents this Court from exercising general jurisdiction over Defendant simply because Defendant does business in Pennsylvania”; to interpret §5301(a) as imposing general jurisdiction on a lesser showing than Bauman renders the statute unconstitutional).

We think that Bane is no longer good law after Bauman and that Bors is wrongly decided, for the following reasons.  First, as literally scores of cases have held, Bauman’s Due Process analysis rejects constructions of state law that could result in national corporations being sued for anything in every state that they do business.  Make no mistake about it, application of  “consent” jurisdiction is likewise a matter of Due Process.  “The requirement that a court have personal jurisdiction flows . . . from the Due Process Clause. ” ICI, 456 U.S. at 702.  Personal jurisdiction “represents a restriction on judicial power . . . as a matter of individual liberty.” Id.  If Pennsylvania can amend its statute to impose general jurisdiction on a lesser showing than Bauman requires, so could any other state.  That a panel decision such as Bane “is contrary to a decision . . . of the Supreme Court” is a reason for the Third Circuit to reconsider that decision.  3d Cir. Loc. R.A.P. 35.1.  Of the jurisdictions within the Third Circuit, only Pennsylvania courts continue to follow Bane – Delaware, New Jersey, and the Virgin Islands have all abandoned Bane and concluded that Bauman controls.  See Relevant sections of this survey.

Second, both Bane and Bors, got the concept of “notice” all wrong, suggesting that, by specifying “general jurisdiction,” §5301(1), the Pennsylvania statute, under Burger King, 471 U.S. at 487, provides “fair warning” that defendants might be “haled into court” in Pennsylvania for over unrelated claims by anyone in the country.  They thus misapplied Burger King on a most fundamental level, since Burger King is not even a general jurisdiction case.  Notice is not relevant to general jurisdiction – it is a consideration in determining the fairness of recognizing specific jurisdiction under a minimum contacts analysis:

Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this “fair warning” requirement is satisfied if the defendant has “purposefully directed” his activities at residents of the forum, and the litigation results from alleged injuries that “arise out of or relate to” those activities.

471 U.S. at 472 (citations and quotation marks omitted) (emphasis added). Even in specific jurisdiction analysis such “fairness” issues are not dispositive. See BMS, 137 S. Ct. 1780-81 (“[e]ven if the defendant would suffer minimal or no inconvenience . . .; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.”) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980)).

The state’s “manifest interest” recognized in Burger King is to “provid[e] its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.”  Id. at 473 (emphasis added).  There is no such interest in providing a forum for non-residents to sue non-residents over claims having nothing to do with the forum state. Rather, the “’purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of . . . ‘attenuated’ contacts.”  Id. at 475 (citation omitted).  Bare corporate registration is the epitome of an “attenuated contact” – even if Burger King had been discussing general jurisdiction.

Third, Bane and Bors also mess up the statutory interpretation side of things.  As discussed at the beginning of this post, post-International Shoe decisions such as ICI no longer treat corporate registration as “consent” – and neither does §5301(a), which expressly distinguishes between “qualification as a foreign corporation” and “consent.”  Compare §5301(a)(2)(i) (“qualification as a foreign corporation”), with §5301(a)(2)(ii) (“Consent, to the extent authorized by the consent”).  Even the Pennsylvania legislature did not consider compliance with Pennsylvania’s corporate domestication requirements to be any form of “consent.”  Indeed, since unregistered corporations cannot be subjected to general personal jurisdiction, e.g., Rittinger v. Keystone Maintenance Services Corp., 2018 WL 3455856, at *4-5 (M.D. Pa. July 18, 2018), we could even make a pretty good “absurd result” argument against Bane/Bors, since they put a corporate lawbreaker that failed to register at all in a better position than a company that duly qualified to do business in Pennsylvania.

By interpreting §5301(a) to merge “qualification” with “consent,” so as to transgress federal Due Process standards, post-Bauman Pennsylvania cases treating corporate registration is ipso facto “consent” to general jurisdiction ignore the “presumption” that “the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.”  1 Pa. C.S.A. §1922(3).  These decisions also ignore the express terms of the Long Arm Statute that preclude exercise of personal jurisdiction beyond what is permitted by “the Constitution of that United States.”  42 Pa. C.S.A. §§5307, 5308, 5322(b).

Ultimately, we believe Pennsylvania will cease to adhere to general jurisdiction by consent, although perhaps not without another United States Supreme Court public flogging.  The jurisdictional constraints addressed in Bauman, after all, are based on the Due Process protections of the federal constitution, and those simply cannot be overridden by a mere state statute.  But for now, Pennsylvania is perhaps the leading practitioner of general jurisdiction by consent.

Puerto Rico

We don’t swear by the details of the on-line translation, so we aren’t going to quote anything, but it appears that the Supreme Court of Puerto Rico, in a pre-Bauman decision, adopted general jurisdiction by consent.  See Riego Zuniga v. Lineas Aereas LACSA, 139 D.P.R. 509, 519-23 (P.R. 1995).

Rhode Island

Although no state court has adjudicated general jurisdiction by consent, federal courts have rejected this argument.  North American Catholic Education Programming Foundation, Inc. v. Cardinale, 567 F.3d 8, 16 n.6 (1st Cir. 2009) (“courts have consistently held that the appointment of an agent of process alone does not suffice to allow for the exercise of general jurisdiction”) (applying Rhode Island law); Phoenix Insurance Co. v. Cincinnati Indemnity Co., 2017 WL 3225924, at *4 (Mag. D.R.I. March 3, 2017) (defendant’s “license to transact insurance business in Rhode Island and its designation of [a] Rhode Island . . . agent to accept service of process do not tip the balance in favor of asserting general jurisdiction”), adopted, 2017 WL 2983879 (D.R.I. July 13, 2017); Harrington v. C.H. Nickerson & Co., 2010 WL 3385034, at *4 (D.R.I. Aug. 25, 2010) (“this Court will not presume that Defendant consented to personal jurisdiction where there is no indication that either the Rhode Island legislature, or Defendant itself, intended that corporate registration would serve as consent to personal jurisdiction in Rhode Island”).  Rhode Island is right, indeed.

South Carolina

Way back in 1971, the court in Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745 (4th Cir. 1971) (applying South Carolina law), held that “the application to do business and the appointment of an agent for service to fulfill a state law requirement is of no special weight in” a general jurisdictional context.  Not quite a decade later, the South Carolina Supreme Court agreed:

While jurisdiction could be exercised over appellant under [the long arm statute], that section applies only to causes of action arising directly from the act relied upon to establish jurisdiction. Here respondents seek to assert jurisdiction in an action on unrelated contracts to which appellant was not a party.

Yarborough & Co. v. Schoolfield Furniture Industries, Inc., 268 S.E.2d 42, 44 (S.C. 1980) (applying S.C. Code §36-2-803).

A post-Bauman South Carolina court held that “even after an effective service of process, personal jurisdiction must still comport with due process,” rejecting an argument that mere service on a foreign corporation’s appointed agent effectuated personal jurisdiction.  Gibson v. Confie Insurance Group Holdings, Inc., 2017 WL 2936219, at *6 (D.S.C. July 10, 2017).  See Gracious Living Corp. v. Colucci & Gallaher, PC, 216 F. Supp. 3d 662, 668 (D.S.C. 2016) (service of defendant’s statutory agent for service did not create general personal jurisdiction); Gabrish v. Strickland Marine Agency, Inc., 2005 WL 5168410 (S.C. Dist. Dec. 2, 2005) (following Ratliff).  Rock solid.

South Dakota

South Dakota’s registration statute expressly mandates that “[t]he appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction.”  S.D. Cod. L. §59-11-21 (2009).  This provision overruled a contrary federal court decision.  See Sondergard v. Miles, Inc., 985 F.2d 1389, 1393-95 (8th Cir. 1993) (purporting to apply South Dakota law, but really extending Knowlton (see Minnesota)).  Given the statute, we think South Dakota is reliably anti-general jurisdiction by consent.


Tennessee state courts “historically” allowed consent on the basis of registration, Davenport v. State Farm Mutual Automobile Insurance Co., 756 S.W.2d 678, 679 (Tenn. 1988) (dictum), but such cases were all pre-Bauman.  Cf. First Community Bank, N.A. v. First Tennessee Bank, N.A., 489 S.W.3d 369, 401-02 (Tenn. 2015) (finding issue waived post-Bauman).  Even before Bauman, Tennessee precedent was not uniform.  JRM Investments, Inc. v. National Standard, LLC, 2012 WL 1956421, at *3 (Tenn. App. May 31, 2012) (affirming dismissal of defendant admittedly with a Tennessee agent for service of process for lack of general jurisdiction); Ratledge v. Norfolk Southern Railway Co., 958 F. Supp.2d 827, 838 (E.D. Tenn. 2013) (construing Davenport as relating to specific jurisdiction only).

Since Bauman, federal court decisions have rejected this theory.  In Bobick v. Wyndham Worldwide Operating, Inc., 2018 WL 4566804 (M.D. Tenn. Sept. 24, 2018), “[a]ll of the . . . Defendants are registered to conduct business in Tennessee. ” Id. at *1.  Nonetheless, general jurisdiction was unavailable:

[T]he court lacks general jurisdiction over the . . . Defendants.  None of the . . . Defendants is “at home” in Tennessee. . . .  [Plaintiffs] do not contend that the . . . Defendants’ contacts with Tennessee are atypical relative to the companies’ contacts in other states or that senior management decisions are made in Tennessee.  Alleging only that the[y] . . . do considerable business in Tennessee . . . is insufficient to establish that they are subject to general jurisdiction here.

Id. at *5.  See Western Express, Inc. v. Villanueva, 2017 WL 4785831, at *5-7 (M.D. Tenn. Oct. 24, 2017) (“it is clear that [defendant’s] designation of an agent for service of process, standing alone, [did] not constitute consent to the general jurisdiction” in Tennessee; “mere designation of an agent for service of process in a particular state, in compliance with a state statute, standing alone, does not constitute consent to general jurisdiction within that state”); Bauer v. Nortek Global HVAC LLC, 2016 WL 5724232, at *6 (M.D. Tenn. Sept. 30, 2016) (“consent” argument “failed to make out a prima facie case of personal jurisdiction” because “the mere presence of a defendant in the forum does not subject it to all-purpose jurisdiction”).

Tennessee has been improving so we no longer rate it as undecided, but now put it (tentatively, until we have appellate authority) in the anti-consent category.


Both state and federal Texas appellate courts have ruled that registration to do business does not amount to consent to jurisdiction.  Before Bauman, Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405 (Tex. App. 1997), held that, “[b]y registering to do business, a foreign corporation only potentially subjects itself to jurisdiction.”  Id. at 416 (emphasis original).  Accord Asshauer v. Glimcher Realty Trust, 228 S.W.3d 922, 933 (Tex. App. 2007); (quoting Conner); Juarez v. United Parcel Service de Mexico S.A. de C.V., 933 S.W.2d 281, 284-85 (Tex. App. 1996) (“the designation of an agent for service of process, without more, does not satisfy due process requirements for the exercise of general jurisdiction”); Ford Motor Co. v. Cejas, 2018 WL 1003791, at *7-10 (Tex. App. Feb. 22, 2018) (plaintiffs “have not alleged jurisdictional facts to support the trial court’s finding that [defendants’] affiliations with Texas are so ‘continuous and systematic’ as to render [them] essentially at home’ in Texas”; both defendants alleged to have Texas registered agents, among numerous other in-state contacts) (unpublished); Salgado v. OmniSource Corp., 2017 WL 4508085, at *5 (Tex. App. Oct. 10, 2017) (a registered agent “without evidence of substantial business relations or other contacts, is not enough to subject a nonresident defendant to general jurisdiction”) (citation omitted) (unpublished); Northern Frac Proppants, II, LLC v. 2011 NF Holdings, LLC, 2017 WL 3275896, at *16 (Tex. App. July 27, 2017) (“general jurisdiction . . . not established by showing that foreign business entities . . . were registered to do business” and “had registered agents for service of process”) (unpublished).  The Fifth Circuit, applying Texas law, weighed in with Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992) (“the mere act of registering an agent . . . does not act as consent to be hauled into Texas courts on any dispute with any party anywhere concerning any matt er”). In Texas, “[t]he lines drawn by [Bauman] appear to act as absolute hard boundaries in the general jurisdiction context.”  Michelin North America, Inc. v. DeSantiago, ___ S.W.3d ___, 2018 WL 3654919, at *7 (Tex. App. Aug. 2, 2018).

Numerous district courts agree.  Wartsila North America, Inc. v. International Center for Dispute Resolution, ___ F. Supp.3d ___, 2018 WL 3870015, at *10 (S.D. Tex. Aug. 14, 2018) (“‘doing business’ and being ‘at home’ are not similar standards”; being “licensed in Texas,” along with other in-state contacts, “are not sufficient for the exercise of general jurisdiction under [Bauman]”; declining to follow Bors (see Pennsylvania)); Cunningham v. Nationwide Security Solutions, Inc., 2018 WL 4575005, at *12 (Mag. N.D. Tex. Aug. 31, 2018) (registration to do business does “not show that the Court has general jurisdiction”), adopted, 2018 WL 4568803 (N.D. Tex. Sept. 24, 2018); Griffin v. Ford Motor Co., 2017 WL 3841890, at *2 n.1 (W.D. Tex. Sept. 1, 2017) (“the existence of a registered agent, standing alone, is not sufficient to establish jurisdiction”); Agribusiness United DMCC v. Blue Water Shipping Co., 2017 WL 1354144, at *5-6 (S.D. Tex. April 13, 2017) (“while having a registered agent in Texas may reflect the reasonable anticipation of being haled into court in this forum related to activities in the state, it does not reflect an expectation of being haled into court for activities unrelated to Defendant’s contacts with Texas”); Axxess Technology Solutions Inc. v. Epic Systems Corp., 2017 WL 3841604, at *2 (N.D. Tex. Jan. 23, 2017) (allegation that defendant “registered to do business in Texas” insufficient to establish general jurisdiction); Clasen v. National Board of Osteopathic Medical Examiners, Inc., 2015 WL 9489507, at *4 (Mag. E.D. Tex. Dec. 30, 2015) (“although [defendant] has a registered agent in Texas, this alone does not establish general jurisdiction”), adopted, 2016 WL 890675 (E.D. Tex. March 9, 2016); ADT, LLC v. Capital Connect, Inc., 2015 WL 7352199, at *5 (N.D. Tex. Nov. 20, 2015) (following Wenche); Hazim v. Schiel & Denver Publishing Ltd., 2015 WL 5227955, at *4 (S.D. Tex. Sept. 8, 2015) (“effecting service in the forum State on a registered corporate agent is not enough to show personal jurisdiction over the nonresident corporation”), aff’d on other grounds, 647 F. Appx. 455 (5th Cir. 2016); Fiduciary Network, LLC v. Buehler, 2015 WL 2165953, at *5-6 (N.D. Tex. May 8, 2015) (consent through “registration of an agent for process and registration to do business” will not suffice for general jurisdiction); Haskett v. Continental Land Resources, LLC, 2015 WL 1419731, at *6 (S.D. Tex. March 27, 2015) (“registering as a foreign entity in a state, [and] nominating a registered agent for service of process . . . do not establish . . . general jurisdiction”), aff’d in part, vacated in part on other grounds, 668 F. Appx. 133 (5th Cir. 2016); Transverse, LLC v. Info Directions, Inc., 2013 WL 3146838, at *5 (Mag. W.D. Tex. June 17, 2013) (“Courts have consistently held that the appointment of an agent of process alone does not suffice to allow for the exercise of general jurisdiction.”), adopted, 2013 WL 12133970 (W.D. Tex. Aug. 30, 2013); 800 Adept, Inc. v. Enterprise Rent-A-Car, Co., 545 F. Supp.2d 562, 569 n.1 (E.D. Tex. 2008) (“A party does not consent to personal jurisdiction merely by complying with a state’s registration statutes or appointing an agent for service of process.”); Goodman v. Whole Foods Market, Inc., 2006 WL 8432867, at *6 (W.D. Tex. Sept. 26, 2006) (“That [defendant] was still registered to do business in Texas at the time [plaintiff] sustained his alleged injuries and at the time suit was filed is not dispositive of the general jurisdiction issue.”); Arkwright Mutual Insurance Co. v. Transportes de Nuevo Laredo, 879 F. Supp. 699, 700-01 (S.D. Tex. 1994) (Texas certificate to do business does not establish general jurisdiction); Leonard v. USA Petroleum Corp., 829 F. Supp. 882, 889 (S.D. Tex. 1993) (“A foreign corporation must have contact, other than mere compliance with Texas domestication requirements, to be subject to personal jurisdiction in Texas.”).  Cf. Johnston v. Multidata Systems International Corp., 523 F.3d 602, 614 (5th Cir. 2008) (“Never before have we held that licenses to do work can create general jurisdiction.”) (applying Texas law).  But see Del Castillo v. PMI Holdings North America, Inc., 2015 WL 3833447, at *3-4 (S.D. Tex. June 22, 2015) (allowing general jurisdiction based on registration and agent for service of process).  Texas doesn’t put up with this general jurisdiction by consent nonsense.


Utah’s registration statute “[does] not create an independent basis for jurisdiction.”  Utah Code Ann. §16-17-401 (2013).  Utah precedent rejects general jurisdiction by consent. See Staker & Parson Cos. v. Scottsdale Insurance Co., 2018 WL 3575314, at *2 (D. Utah July 25, 2018) (despite defendant’s in-state registration to do business and agent for service of process, “its affiliations with Utah are insufficient to render it essentially at home in Utah”); Oversen v. Kelle’s Transportation Service, 2016 WL 8711343, at *3 (D. Utah May 12, 2016) (rejecting general jurisdiction; noting “the constitutional questions that would arise if the [registration] statute were interpreted to require that all entities must consent to general personal jurisdiction in Utah”); Ayers v. Tanami Trading Corp., 2009 WL 1362402, at *3 (D. Utah May 14, 2009) (“[d]esignating an agent for the service of process within a state, without more, is insufficient to establish general jurisdiction”); Miller v. Robertson, 2008 WL 270761, at *5 (D. Utah Jan. 29, 2008) (“qualifying to do business or appointing a registered agent are relevant factors . . ., but they are not decisive by themselves”).  Utah is favorable.


Vermont’s statute and state court cases provide no guidance.  Federal courts have predicted that Vermont would reject consent to general jurisdiction based on registration  Bertolini-Mier v. Upper Valley Neurology Neurosurgery, P.C., 2016 WL 7174646, at *4 (D. Vt. Dec. 7, 2016) (“mere registration to do business in Vermont is not determinative of the jurisdictional questions in this case,” following Brown, (see Connecticut)); Viko v. World Vision Inc., 2009 WL 2230919, at *7 (D. Vt. July 24, 2009) (“compliance with Vermont’s foreign corporation registration statute does not entail consent to general personal jurisdiction, at least independently of the minimum contacts required by due process”); cf. Hegemann v. M & M American, Inc., 2018 WL 4502181, at *6 (D. Vt. Sept. 20, 2018) (relying on much of same  anti-consent precedent to hold that registration under federal motor carrier statute did not create general jurisdiction.  Vermont thus looks good.


Virginia law has long recognized that “a finding of general personal jurisdiction on the basis of registration and appointment of an agent alone is extremely conducive to forum shopping because many companies have registered to do business and appointed an agent for service of process in numerous states.”  Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F. Supp.2d 545, 551 (E.D. Va. 2004).  “A nonresident corporation consents to jurisdiction in a state’s courts by actually doing business in that state, not simply by fulfilling a state-law requirement that it register and appoint an agent for service of process so that it potentially could do business there.”  Id.  Most recently, a Virginia trial court followed Reynolds in ruling that “[d]esignating an agent does not amount to continuous and systematic operations that render [defendant] ‘essentially at home’ in Virginia, as is minimally required for general personal jurisdiction.”  New York Commercial Bank v. Heritage Green Development, LLC, 2017 WL 954197, at *2 (Va. Cir. March 7, 2017).  An older case, Cognitronics Imaging Systems, Inc. v. Recognition Research, Inc., 83 F. Supp.2d 689 (E.D. Va. 2000), discussed the pre-Bauman “divergent approaches” in a patent case, but avoided deciding the issue.  Id. at 693-94.  We think Virginia will follow the majority rule.

Virgin Islands

Citing Bauman’s “reluctance to extend general jurisdiction,” In re Asbestos Products Liability Litigation (No. VI), 2014 WL 5394310 (E.D. Pa. Oct. 23, 2014) (applying Virgin Islands law), held that a defendant’s current Virgin Islands license to do business and agent for service of process were “not so significant that they could substitute for its place of incorporation or principal place of business.”  Id. at *9.  The relevant statute “personal jurisdiction based on enduring relationship,” restricts jurisdiction to those “domiciled in, organized under the laws of, or maintaining . . . its principal place of business in, this territory.”  5 V.I.C. § 4902.  Not a lot to go on, but what there is looks good.


Washington’s long arm statute provides that “designation or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity.”  Wash. Rev. Code §§23.95.460.  Therefore, “[a] certificate of authority to do business and appointment of a registered agent do not then confer general jurisdiction over a foreign corporation. ” Washington Equipment Manufacturing Co. v. Concrete Placing Co., 931 P.2d 170, 173 (Wash. App. 1997); accord Anglin v. 21st Century Insurance Co., 2003 WL 1076538, at *2 (Wash. App. March 10, 2003) (“registering to do business in Washington alone is an insufficient basis for imposing jurisdiction on a foreign corporation”; defendant “did not consent to jurisdiction in Washington courts simply by registering to do business in this state”) (unpublished); Korzyk v. Swank Enterprises, Inc., 2005 WL 1378758, at *11 (E.D. Wash. June 9, 2005) (“a foreign corporation’s obtaining a certificate of authority to do business in Washington, and the appointment of a registered agent to transact business in Washington, do not constitute consent to general personal jurisdiction”).

Post-Bauman Washington precedent rejects general jurisdiction by consent.  Dokoozian Construction LLC v. Executive Risk Specialty Insurance Co., 2015 WL 12085859, at *2 (W.D. Wash. July 28, 2015) (“reject[ing] the idea that the appointment of an agent for service of process alone works as consent to be sued in that state”); United States ex rel. Imco General Construction, Inc. v. Insurance Co. of Pennsylvania, 2014 WL 4364854, at *3 (W.D. Wash. Sept. 3, 2014) (basing general jurisdiction on registration to do business was “exorbitant” assertion of jurisdiction barred by Bauman); Cox v. Alco Industries, Inc., 2015 WL 10891167, at *4-6 (Wash. Super. Sept. 10, 2015) (registration to do business, even with other contacts, insufficient to support general jurisdiction; following Brown (see Connecticut)).  Washington looks solid.

West Virginia

The West Virginia long arm statute provides that “only a cause of action arising from or growing out of one or more of the acts specified . . . may be asserted.  W. Va. Code Ann. §56-3-33.  The corporate registration statute provides:

(d) A foreign corporation is deemed to be transacting business in this state if . . . [t]he corporation manufactures, sells, offers for sale or supplies any product in a defective condition and that product causes injury to any person or property within this state notwithstanding the fact that the corporation had no agents, servants or employees or contacts within this state at the time of the injury

W. Va. Code §31D-15-1501(d) (emphasis added).  While this statute may have other constitutional problems, it is not a vehicle for litigation tourism.

Pre-Bauman federal courts have held that corporate registration alone did not establish general jurisdiction.  Gallaher v. KBR, Inc., 2010 WL 2901626, at *10 (N.D.W. Va. July 21, 2010) (corporate registration and having agent for service of process “are not sufficient to establish general personal jurisdiction”); In re Mid-Atlantic Toyota Antitrust Litigation, 525 F. Supp. 1265, 1278 (D. Md. 1981) (“With no contact with West Virginia . . ., [defendant’s] consent [by registering to do business] to jurisdiction is an insufficient basis for personal jurisdiction”) (applying West Virginia law), aff’d on other grounds, 704 F.2d 125 (4th Cir. 1983).

Post-Bauman, the West Virginia Supreme Court of Appeals passed on an opportunity to address the limits to general jurisdiction in State ex rel. Ford Motor Co. v. McGraw, 788 S.E.2d 319, (W. Va. 2016), because of an insufficient record.  Id. at 334-35.  Plaintiff in McGraw had asserted registration to do business, among a variety of other non-record facts.  Id. at 334.  A federal court rejected general jurisdiction by consent in

[T]he facts contained within the complaint are insufficient to establish . . . general . . . jurisdiction. . . .  [T]he Plaintiff avers that this Court may exercise personal jurisdiction over the Defendant simply because it is a corporation that is registered to do business, and in fact does business, in this state. . . .  This information does not comport with the requirements announced in BNSF and does not establish, by a preponderance of the evidence, that this Court may exercise personal jurisdiction over the Defendant.

Javage v. General Motors, LLC, 2017 WL 6403036, at *1 (N.D.W. Va. Aug. 18, 2017) (simultaneous discussion of specific jurisdiction omitted), aff’d, 736 F. Appx. 418 (4th Cir. 2018) (affirming “for the reasons stated by the district court”).

West Virginia looks like it would reject general jurisdiction by consent where registration/agent for service of process is the only alleged tie to the state.


The Wisconsin Supreme Court rejected general jurisdiction by consent in Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, 898 N.W.2d 70 (Wis. 2017).  Expansive jurisdiction by consent “would extend Wisconsin’s exercise of general jurisdiction beyond the tapered limits recently described by the Supreme Court.”  Id. at 80.  “A foreign corporation’s contacts with Wisconsin would be irrelevant so long as it registered an agent for service of process − which all foreign corporations authorized to transact business in this state must do,” which would render the Long Arm statute “idle and nugatory.”  Id. at 79.

The shade of constitutional doubt that Goodyear and [Bauman] cast on broad approaches to general jurisdiction informs our assessment of this court’s older cases. . . .  [W]e instead give preference to prevailing due process standards when interpreting a contemporary statute for the first time. . . .  [S]ubjecting foreign corporations to general jurisdiction wherever they register an agent for service of process would reflect the “sprawling view of general jurisdiction” rejected by the Supreme Court.

Id. at 81-82 (citations and quotation marks omitted).  Pa. Fire, by contrast, “represent[ed] a disfavored approach to general jurisdiction.”  Id. at 82.  Contrary language in two earlier cases was disavowed.  Id. at 81-83 (criticizing Hasley v. Black, Sivalls & Bryson, Inc., 235 N.W.2d 446 (Wis. 1975), and State ex rel. Aetna Insurance Co. v. Fowler, 220 N.W. 534 (Wis. 1928)).  Now solid.


There is utterly no Wyoming precedent on the issue of general jurisdiction by consent through registration or appointment of an agent, and the statutes are silent.  See Wyo. Stat. §§5-1-107, 17-16-1501.  An ancient case contains the language:

A foreign corporation is not doing, carrying on, transacting, or engaging in business in a state, within the meaning of the statutes under consideration, by merely appointing an agent for the transaction of future business.

Creamery Package Manufacturing Co. v. State Board of Equalization, 166 P.2d 952, 954 (Wyo. 1946) (quoting Corpus Juris).  Creamery Package, however, was a tax case.

While it is probably likely that Wyoming would follow the majority rule rejecting such jurisdiction, it would be pure speculation to assign Wyoming to either side of the debate with no on-point precedent.