What follows is a collaborative effort between Bexis and Reed Smith‘s Kevin Hara, who helped research and write this post. It’s not really a guest post, but Kevin had such a large hand in it that his contribution deserves to be separately acknowledged.
As attorneys, we are fond of rules: they give us structure, define boundaries sometimes both literally in a physical sense and figuratively in a nonphysical – but no less fundamental – way. Nearly four years have elapsed since the Supreme Court crystallized the limitations on general personal jurisdiction in the landmark case Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (“Bauman”), whose praises we have lauded, here, here, and here. We followed Bauman, a case near and dear to the hearts of litigators on the right side of the “v.”, because it dealt a significant blow to the litigation tourism that has multiplied over recent years by confining general jurisdiction to the places in which a nonresident defendant is “at home.” Nonetheless, plaintiffs’ attorneys have attempted to stretch that definition in a number of ways, including arguing for general jurisdiction based on judicial estoppel, waiver, and alter ego, as we explained here and here.
Those arguments are largely fact- and case-specific. Another argument plaintiffs have asserted post-Bauman, however, is not, and is therefore of greater concern. That is the issue of consent-based jurisdiction through a corporation’s registration to do business – which is mandatory in all 50 states. Thus, general jurisdiction by “consent” based simply on registration to do business/appointment of an agent for service of process has the potential to be every bit as “grasping” and “exorbitant” as the general jurisdiction theories rejected in Bauman itself. Because of this, under Bauman’s due process principles, such registration requirements should not subject nonresident defendants to all-purpose jurisdiction. Thankfully, in most states, it does not. As discussed in much greater detail below, we believe the following states gave rejected general jurisdiction by consent based on state registration statutes:
Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Idaho, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, the Virgin Islands, Washington, West Virginia, and Wisconsin.
In a few jurisdictions, precedent exists that (at least so far) allows foreign corporations that have registered to do business to be haled into court even for claims unrelated to any in-state activity. While this precedent was not directly addressed by Bauman, it contravenes the principles underlying Bauman, not to mention opening the door wide for forum shopping, improper litigation tourism, and other forms of gamesmanship that strain what we consider the bounds of fair play.
Sports, much like the practice of law, has its own rules designed to ensure fair play and impose important limits on the particular game at issue. One prime example is discussed in “The Common Law Origins of the Infield Fly Rule,” 123 U. Pa. L. Rev. 1474 (1975). For attorneys who lament some of the tactics that still stretch the bounds of legal rules and regulations and are baseball aficionados, consider the Official Rules of Major League Baseball (“MLB”) Rule 7.08 “Retiring a Runner,” and its inherent flexibility and vulnerability. Our focus on the territorial limits to jurisdiction recognized and applied by Bauman’s holding and due process reminds us about a recent article that discussed a trick play in a high school championship game known as “The Play That Broke Baseball,” dubbed “Skunk in the Outfield.” The play, like consent to jurisdiction through registration, exceeded the bounds of sportsmanship, but did not at the time technically break the rules.
As always, we start with the applicable rule, in this case Official MLB Rule 7.08, which proscribes the baseline for a runner. According to Rule 7.08, any runner is out when:
(a)(1) He runs more than three feet away from his base path to avoid being tagged unless his action is to avoid interference with a fielder fielding a batted ball. A runner’s base path is established when the tag attempt occurs and is a straight line from the runner to the base he is attempting to reach safely; or
(2) after touching first base, he leaves the base path, obviously abandoning his effort to touch the next base.
MLB Rule 7.08. The key portion of the rule is the second sentence of subsection (a)(1), which sets the base path, which is “established when the tag attempt occurs and is a straight line from the runner to the base he is attempting to reach safely.” Thus, there is no base path if no player is attempting to tag the runner, who can go anywhere – even into the outfield – which is precisely what happened in Skunk In The Outfield (“Skunk”). The above referenced article provides a fascinating depiction of the entire play, which took 2 minutes and 32 seconds, an eternity for a baseball play. For instance, a very fast runner can traverse the 90 feet from home plate to first base in under 4 seconds, and circle the bases on a home run in fewer than in 14. Even the longest plays, such as a rundown (when a runner becomes trapped between two bases) typically lasts less than 20 seconds. Of course, the games themselves may take upwards of four hours, especially in the American League, which includes the unfortunate Designated Hitter rule.
But back to the play. The team that unleashed Skunk did so in order to entice the defense into a rundown with base runners at the first and third, in order to steal a run, by allowing the runner on third to score during the confusion. The problem with Skunk is that the rules allow it, and while Skunk would never happen in MLB, the exploitation of the rule in a state championship game denigrated the game, caused both teams to spend an extremely long, frustrating amount of time on the maneuver, raised the ire of players, officials and spectators, and ultimately, failed to work. This begs the question whether, even if such a ploy is not against the rules, should it be prohibited by something else, such as fundamental fairness?
The same can be said about general jurisdiction by consent through registration, many large corporations conducting business throughout the country register in all 50 states. A century-old Supreme Court case, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), allowed general jurisdiction by consent under the old in rem-based jurisdictional standards that were overturned beginning with International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (overruling Pennoyer v. Neff, 95 U.S. 714 (1878)). Since large corporations have to be registered to do business in every state, allowing jurisdiction by consent under Pennsylvania Fire would result in their being subject to suit everywhere for anything – a jurisdictional skunk theory that would permit, under a different name, precisely what Bauman rejected. As Bauman itself cautioned, cases “decided in the era dominated by Pennoyer’s territorial thinking . . . should not attract heavy reliance today.” 134 S. Ct. at 761 n.18.
As we discussed at length, the Second Circuit succinctly explained why the general jurisdiction by consent theory is a skunk in Brown v. Lockheed-Martin Corp., in holding that Bauman precluded a nonresident corporation’s business registration from ipso facto equating to general jurisdiction:
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.
814 F.3d 619, 640 (2d Cir. 2016) (applying Connecticut law) (emphasis added). Brown crystallized one of the problems with both consent by registration and Skunk In The Outfield – each represents an attempt to gain an advantage on the other side by exploiting the system. However, even the team that utilized Skunk became embarrassed over the play, as the crowd became derisive, the play ultimately accomplished nothing, and even the coach who called the play never used it again. In other words, sometimes, the ability to take a particular action may not explicitly break the rules, but nonetheless should be prohibited. That is the reason most states have declined to allow general jurisdiction are merely by a defendant’s registration to do business in a given forum.
Attorneys on the other side of the “v.,” however, haven’t been as easily embarrassed as baseball players.
Thus, a lot of law exists on the concept of jurisdiction by consent. We have a cheat sheet collecting the favorable cases here. Overall, the vast majority of states – 38 (plus DC and VI) – have rejected the theory that a nonresident defendant may be subject to general jurisdiction simply by registering to conduct business through judicial decision or by statute, while in only 4 (Iowa, Minnesota, Nebraska, Pennsylvania) does current precedent continue to support that suspect argument, with the outcome being unclear in the other 8 (Alabama, Georgia, Hawaii, Kansas, Kentucky, New Hampshire, Tennessee, Virginia, and Wyoming). Notably, the highest courts in California, Colorado, Delaware, Illinois, Maryland, Michigan, Missouri, New Mexico, Nevada, North Carolina, Ohio, Oregon, and Wisconsin have rejected such arguments, with seven of those occurring post-Bauman.
The overwhelming number of state and federal decisions issued after Bauman, which we have tracked here, shows an unmistakable trend against subjecting a nonresident defendant to a state’s general jurisdiction through registration for business. In other words, although the Supreme Court has yet to issue the final verdict on this subject, things are moving in the right direction with more courts slamming the back door on the would be thief, and exterminating any potential “Skunk In The Outfield.”
Neither Alabama’s corporate registration statutory framework, nor its cases, provide a clear answer on this issue. See, e.g. Ala. Code § 10A-1-5.31. However, a pre-Bauman district court opinion suggested that general jurisdiction based solely on consent through registration was sufficient. Johnston v. Foster-Wheeler Constructors, Inc., 158 F.R.D. 496, 501 (M.D. Ala. 1994). A post-Bauman case disagrees. Roper v. CNU of Alabama, 2017 WL 3334876, at *2 (N.D. Ala. Aug. 4, 2017) (being “registered to do business in Alabama . . . alone is insufficient for the court to exercise general jurisdiction”). It’s hard to say how Alabama law comes down on this issue.
Alaska’s registration statute provides no guidance on in this issue, and the cases are mostly unhelpful. However, in Stephenson v. Duriron Co., 401 P.2d 423 (Alaska 1965), the court suggested that a prior version of the registration statute required a nonresident defendant to register to conduct business but did not “purport to define those activities which may subject a foreign corporation” to the jurisdiction of Alaska courts. Id. at 424. Thus, transacting business alone likely does not suffice for consent in Alaska.
In Arizona, a post-Bauman appellate court decision held that registration to do business does not subject a foreign jurisdiction to general jurisdiction “either by prescription or consent,” because the defendant cannot “fairly . . . waive its due process rights when . . . the statute” provides no such notice. Wal-Mart Stores, Inc. v. Lemaire, 395 P.3d 1116, 1119 (Ariz. App. 2017); but see Bohreer v. Erie Insurance Exchange, 165 P.3d 186, 187-92 (Ariz. App. 2007) (upholding general jurisdiction without minimum contacts and stating consent-by-registration satisfies due the process; “agree[ing]” with now overruled (see Delaware) Sternberg decision). Lemaire declined to overrule Bohreer, but the former post-dates Bauman, it is the more current and more likely approach that Arizona’s Supreme Court would follow. See 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).
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) (“express” statutory limitation precludes general jurisdiction by consent, because “an exception that is so large as to swallow the rule here would [not] be a natural or fair reading of these statutes”); 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 Knowlton (see Minnesota). Arkansas seems solid against general jurisdiction by consent.
In California, consent to jurisdiction through registration to do business equates to consent to service of process only, but has no consequence for personal jurisdiction. See, e.g. Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 884 (Cal. 2016) (“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”), overruled on other grounds, ___ U.S. ___, 137 S. Ct. 1773 (2017). See also 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”) (pre-Bauman); Gray Line Tours v. Reynolds Electric. & Engineering Co., 238 Cal. Rptr. 419, 421 (Cal. App. 1987) (same); Am Trust v. UBS AG, 681 F. Appx. 587, 589 (9th Cir. 2017) (affirming dismissal, consent to jurisdiction not required of corporations registering to do business); 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”).
After Bauman, the Colorado Supreme Court held that, although a defendant foreign corporation “ha[d] a registered agent in Colorado,” nonetheless “the record in this case does not support a finding that general jurisdiction over [defendant] is appropriate.” Magill v. Ford Motor Co., 379 P.3d 1033, 1038-39 (Colo. 2016). See also Allied Carriers Exchange, Inc. v. Alliance Shippers, 1999 WL 35363796, at *5 (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 nullifies the unfavorable pre-Bauman dictum in Packaging Store, Inc. v. Leung, 917 P.2d 361, 363 (Colo. App. 1996).
The Second Circuit Court of Appeals in Brown v. Lockheed-Martin Corp., rejecting the consent through registration argument in an asbestos case, interpreting the Connecticut statute not to permit such jurisdiction in order to avoid declaring the statute unconstitutional. 814 F.3d 619, 636-37 (2d Cir. 2016), affirming Brown v. CBS Corp., 19 F. Supp.3d 390, 397 (D. Conn. May 14, 2014). Pre-Bauman state court cases had ruled otherwise, see Talenti v. Morgan & Brother Manhattan Storage Co., 968 A.2d 933, 941 (Conn. App. 2009); Lake Road Trust, LTD. v. ABB, Inc., 2011 WL 1734458, at *6 (Conn. Super. April 11, 2011), but in light of Brown, it would be unusual for Connecticut state courts to follow a contrary path.
The Delaware Supreme Court was one first post-Bauman state high courts to foreclose any argument that a nonresident Corporation could be subjected to general jurisdiction merely by registering to do business. Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016). Cepec held that 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. Prior, contrary precedent was overruled. Id. at 141-42 (rejecting Sternberg v. O’Neil, 550 A.2d 1105, 1108-12 (Del. 1988), and Continental Casualty Co. v. American Home Assurance Co., 61 F. Supp.2d 128, 12930 (D. Del. 1999)). See AstraZeneca AB v. Mylan Pharmaceuticals, Inc., 72 F. Supp. 3d 549, 556 (D. Del. 2014) (“compliance with Delaware’s registration statutes . . . cannot constitute consent to jurisdiction”), aff’d on other grounds, 817 F.3d 755 (Fed. Cir. 2016).
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 doesn’t happen.
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) (following Sofrar). Likewise, federal courts both pre- and post-Bauman have repeatedly declined 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., 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”); 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) (rejecting registration as basis for general jurisdiction); 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”); 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 provides no indication that registration affects jurisdiction one way or another; nor are there relevant state cases. However, pre-Bauman federal district courts in Georgia were inconsistent. Moore v. McKibbon Brothers, 41 F. Supp.2d 1350, 1354 (N.D. Ga. 1998), considered registration as one factor of a minimum contact analysis, rather than as consent to jurisdiction in and of itself. Contrarily, Wheeling Corrugating Co. v. Universal Const. Co., 571 F. Supp. 487, 488 (N.D. Ga. 1983), upheld general jurisdiction based on registration to do business as consent, relying on pre-International Shoe precedents, and based largely on defendant’s failure to support its opposition to jurisdiction with any evidence. Id. We can’t give you a good handle on Georgia.
Hawaii’s registration statute, Haw. Rev. Stat. § 414-437, is silent as to jurisdiction. There isn’t much precedent, but 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.” Haw. Rev. Stat. §425R-12. 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 (footnote omitted). So Hawaii now looks favorable.
Idaho’s statute provides that appointment of a registered agent has no effect on jurisdiction or venue. Idaho Code § 30-21-414 (2015). 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.
In another post-Bauman decision, the Illinois Supreme Court held that Illinois’ statute did not “require foreign corporations to consent to general jurisdiction as a condition of doing business …, nor [did] they indicate that, by registering … or appointing a registered agent, a corporation waives any due process limitations.” Aspen American Insurance Co. v. Interstate Warehousing, Inc., 90 N.E.3d 440, 447 (Ill. 2017). See Campbell v. Acme Insulations, Inc., ___ N.E.3d ___, 2018 WL 2305692, at *4 (Ill. App. May 18, 2018) (“[n]or does the fact that [defendant] has a registered agent for service of process in Illinois show that it consented to jurisdiction in this State”) (following Aspen Insurance); 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.”); Guaranteed Rate, Inc. v. Conn, 264 F. Supp.3d 909, 916 (N.D. Ill. 2017) (registration to do business insufficient to support 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”); 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); 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) (similar). Before Bauman, see: Rawlins v. Select Specialty Hospital, 2014 WL 1647182, at *5 (N.D. Ill. April 23, 2014); ACUITY v. Roadtec, Inc., 2013 WL 6632631, at *5 (N.D. Ill. Dec. 16, 2013); Bray v. Fresenius Medical Care Aktiengesellschaft Inc., 2007 WL 7366260, at *4 (N.D. Ill. Aug. 30, 2007).
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); 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.”); McManaway v. KBR, Inc., 695 F. Supp.2d 883, 895 (S.D. Ind. 2010) (following Wilson; pre-Bauman). Indiana looks safe.
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 on the pro-consent side.
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 in light of Bauman, the Delaware Supreme Court has overruled Sternberg (see Delaware). See also AK Steel Corp. v. PAC Operating Ltd. Partnership, 2017 WL 3314294, at *4 (D. Kan. Aug. 3, 2017) (Kansas will continue to follow Pennsylvania 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”). However, 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). Further, an expansive view of general jurisdiction by consent was held to violate the dormant Commerce Clause in In re Syngenta AG MIR 162 Corn Litigation, 2016 WL 2866166, at *5-6 (D. Kan. May 17, 2016).
The issue of consent-based jurisdiction through registration to do business or designation of an agent is uncertain in Kentucky, because the statute provides no guidance, and no relevant cases have addressed this topic. Ky. Rev. Stat. Ann. §§14A.4-010 (2012). 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), which therefore would seem to permit only specific jurisdiction. We’re leaving Kentucky in the uncertain category, though.
Louisiana state and federal courts, both before and after Bauman, have rejected general jurisdiction on a consent by registration basis. See, e.g., Gulf Coast Bank & Trust Co. v. Designed Conveyor Systems, LLC, 2017 WL 6553374, at *3 (5th Cir. Dec. 22, 2017) (“Louisiana law, therefore, does not require a foreign entity to consent to jurisdiction as a condition of doing business in the state”); 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-Daimler.”); 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”). 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 were 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).
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), merely being licensed to do business in Maine and having a agent for service of process was neither “actually doing business” nor “continuous and substantial” business activity that would allow general personal jurisdiction. Id. at 89. Down East looks solid.
The 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.) (2014). Maryland courts similarly reject general jurisdiction simply as a matter of registration to do business or appointment of an agent. See, e.g., Republic Properties Corp. v. Mission West Properties, LP, 895 A.2d 1006, 1022 (Md. 2006) (“service of process within Maryland upon the resident agent of a domestic corporate general partner of a foreign limited partnership does not confer, by itself, personal jurisdiction over the foreign limited partnership,” calling into question the viability of Pennsylvania Fire); 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”); 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. 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). However, a Massachusetts state trial decision, citing Pennsylvania Fire, and similar cases, includes 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) (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 “admission of defendant to carry on business in this State . . . gave to it the status of a domestic corporation . . ., but did not extend its liability to be sued” on any and all claims. Renfroe v. Nichols Wire & Aluminum Co., 83 N.W.2d 590, 594 (Mich. 1957). Michigan federal courts have followed. 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”). 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); 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). Minnesota is solid the other way.
Mississippi’s registration statute specifically excludes consent by registration, stating 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.” Miss. Code Ann. §79-35-15 (2013). Accord Mullen v. Bell Helicopter Textron, Inc., 136 F. Supp.3d 740, 744 (S.D. Miss. 2015) (“Alone, [defendant’s] business registration in Mississippi does not establish that it is ‘at home’ in Mississippi.”); Pitts v. Ford Motor Co., 127 F. Supp.3d 676, 683 (S.D. Miss. 2015); Handshoe v. Yount, 2015 WL 7572344, at *4 (S.D. Miss. Nov. 24, 2015); Robinson v. Knight Protective Service, Inc., 2014 WL 1326096, at *4 (S.D. Miss. March 31, 2014); Continental First Federal, Inc. v. Watson Quality Ford, Inc., 2009 WL 2032401, at *8-9 (M.D. Tenn. July 9, 2009) (applying Mississippi law); Norfolk Southern Railway Co. v. Burlington Northern, 2005 WL 1363210, at *2-3 (S.D. Miss. June 2, 2005). Mississippi looks alright on this issue.
Following Bauman, the Missouri Supreme Court held that a nonresident corporation does not consent to simply by registering to do business. State ex rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41, 51-53 (Mo. 2017) (“Dolan”). “[A] broad inference of consent based on registration would allow national corporations to be sued in every state, rendering [Bauman] pointless.” Id. at 51. A few months later, in State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227 (Mo. 2017), the same court unanimously granted mandamus requiring dismissal of 85 of 92 plaintiffs for jurisdictional reasons, reiterating what it had held in Dolan. “To otherwise hold would result in universal personal jurisdiction for corporations complying with registration statutes in many states and would be inconsistent with the holding” of Bauman. Id. at 232-33.
Numerous post-Bauman lower state and federal courts have also reached the same result. See Perficient, Inc. v. Continuant, Inc., 546 S.W.3d 610, 611 (Mo. App. 2018) (rejecting general jurisdiction by consent); 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); 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”).
Some post-Bauman Missouri federal courts disagreed, 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). Cf. Ocepek v. Corporate Transportation, Inc., 950 F.2d 556, 557 (8th Cir. 1991) (pre-Bauman decision extending Knowlton to Missouri law). No federal court has permitted a jurisdiction-by-consent theory since the Missouri Supreme Court’s decision in Dolan.
In Montana, “[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 the state.” Mont. Code Ann. §35-7-105. There are few court decisions, but the Ninth Circuit declined to permit consent through registration. King v. American Family Mutual Insurance Co., 632 F.3d 570, 579 (9th Cir. 2011) (where the nonresident defendant’s “sole contacts” work “Certificates of Authorization and . . . an agent for service of process” it could not support general jurisdiction) (applying Montana law). The Supreme Court’s reversal of Montana’s adverse general jurisdiction decision in BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017), expressly declined to discuss jurisdiction by consent, because the Montana Supreme Court had not addressed that issue. With the statute and the Ninth Circuit, Montana is looking all right on this.
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). Decisions after Bauman have not retreated from this type of consent-based jurisdiction, despite the Supreme Court’s curtailment of general jurisdiction. 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 state firmly in the expansive jurisdiction category.
Nevada’s 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”). Nevada is solid.
New Hampshire’s registration statute does not indicate 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). Cossaboon did not even mention Holloway v. Wright & Morrissey, Inc., 739 F.2d 695 (1st Cir. 1984), which in an entirely non-constitutional analysis interpreted New Hampshire’s statute, at least for litigation “causally connected” to New Hampshire, registration constituted “consent to jurisdiction.” Id. at 699. Holloway is best interpreted as 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. Although there is that old case, we put New Hampshire in the anti-consent majority.
While the New Jersey Supreme Court has yet to preclude the consent to general jurisdiction through registration to do business, the Appellate Division recently did, in light of Bauman. In Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 164 A.3d 435 (N.J. App. Div. 2017), the court could not “agree business registration rises to consent to submit to the general jurisdiction in the forum,” given Bauman’s “clear narrow application of general jurisdiction,” and declining to follow prior contrary precedent. Id. at 444-45. Although some New Jersey federal courts allowed consent by registration before Dutch Run, the majority did not. See, e.g., Horowitz v. AT&T, Inc., 2018 WL 1942525, at *12 (D.N.J. April 25, 2018) (consent by registration is inconsistent with” Bauman); Fundamental Innovation Systems International LLC v. LG Electronics, Inc., 2018 WL 279091, at *2 (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”); Boswell v. Cable Services Co., 2017 WL 2815077, at *4-6 (D.N.J. June 28, 2017) (New Jersey registration statute lacked “express language” indicating consent, rejecting general jurisdiction on basis of registration); Display Works, LLC, v. Bartley, 182 F. Supp.3d 166, 175-76 (D.N.J. 2016) (rejecting general jurisdiction by consent; “the sweeping propositions of jurisdictional power in Pennsylvania 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”); 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) (pre-Bauman); 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; pre-Bauman).
Post-Bauman New Jersey cases that allowed 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.
According to the New Mexico Supreme court “[w]hile designation of an agent for service of process may confer power on a state to exercise its jurisdiction, it does not automatically do so.” Page & Wirtz Construction Co. v. C & G Prestressed Concrete, 772 P.2d 1298, 1300 (N.M. 1989). The Tenth Circuit has reached a similar result. Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir. 1975) (applying New Mexico law). But see Werner v. Wal-Mart Stores, Inc., 861 P.2d 270, 272-73 (N.M. App. 1993) (interpreting registrations statutes and concluding 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,” and ruling that due process analysis was not necessary, citing Knowlton, 900 F.2d at 1200 (see Minnesota); Fireman’s Fund Insurance Co. v. Thyssen Mining Construction of Canada, Ltd., 2011 WL 13085934, at *2-3 (D.N.M. July 29, 2011), rev’d in part and on other grounds, 703 F.3d 488 (10th Cir. 2012) (following Werner in preference to Budde). With the New Mexico Supreme Court on our side, we’ll put this one in the majority, too.
Many years before Bauman, back in the days of Pennsylvania 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 overruled, a distinct majority of New York state and federal cases have recognized, since Bauman, that general jurisdiction can no longer constitutionally be obtained by “consent” amounting to nothing more than registration to do business in New York. One of the more noteworthy cases is Minholz v. Lockheed Martin Corp., 227 F. Supp.3d 249 (N.D.N.Y. 2016), 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 constrain 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: 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); 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”); Amelius v. Grand Imperial LLC, 64 N.Y.S.3d 855, 866-69 (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); Gliklad v. Bank Hapoalim B.M., 2014 WL 3899209, at *1 (N.Y. Sup. Aug. 4, 2014) (in light of Bauman jurisdiction by consent “is no basis for the exercise of general jurisdiction”). Cf. Gucci America, Inc. v. Weixing Li, 768 F.3d 122, 135, 137 & n.15 (2d Cir. 2014) (rejecting general jurisdiction; after Bauman, defendant’s registration and agent for service of process are factors to consider regarding specific jurisdiction) (applying New York law); Hood v. Ascent Medical Corp., 691 Fed. Appx. 8 (2d Cir. 2017) (forum selection clause does not constitute consent to jurisdiction); 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) (New York law license does not create general jurisdiction over attorney residing out of state).
Contrary post-Bauman decisions that continue to follow Bagdon are: 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); Beach v. Citigroup Alternative Investments, 2014 WL 904650, at *6 (S.D.N.Y. March 7, 2014).
It’s been a helluva fight, but right now New York looks pretty firm, particularly in federal court.
Long ago, 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 have refused 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. 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) (“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.”); 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 (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.
The North Dakota statute expressly provides that registration does not equate to consent to jurisdiction, stating 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 (2012). 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 ruled that designating an agent for service is insufficient to warrant consent to general jurisdiction, notwithstanding due process. The Supreme Court determined that, if Ohio were to treat the designation of an agent for service of process as consent to general jurisdiction, that 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).
In Wainscott v. St. Louis-S.F. Railway Co., 351 N.E.2d 466, 471 (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. See also Pittock v. Otis Elevator Co., 8 F.3d 325, 329 (6th Cir. 1993) (following Wainscott) (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. We’re putting Ohio into the anti-consent column.
Oklahoma’s registration statute is silent on the issue of whether registration constitutes consent to jurisdiction. Okla. Stat. tit. 18 §1022. Although Oklahoma state courts have yet to address this issue, a federal district court acknowledged the lack of state precedent, but 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), which rejected the argument that registration in Oklahoma constitutes consent to general jurisdiction pre-Bauman. See Guillette v. PD-RX Pharmaceuticals, Inc., 2016 WL 3094073, at *8 (W.D. Okla. June 1, 2016) (same); Manning v. PD-RX Pharmaceuticals Inc., 2016 WL 3094075, at *7-8 (W.D. Okla. June 1, 2016) (same); Nauman v. PD-RX Pharmaceuticals Inc., 2016 WL 3094081, at *7-8 (W.D. Okla. June 1, 2016) (same). Oklahoma is OK.
The Oregon Supreme Court granted a writ of mandate, reversed a lower court’s decision and held that a foreign corporation’s registration to do business did not “as a matter of state law, the legislature did not intend that appointing a registered agent . . . would constitute consent to the jurisdiction of the Oregon courts.” Figueroa v. BNSF Railway Co., 390 P.3d 1019, 1022 (Or. 2017). Figueroa ruled that “appointing a registered agent to receive service of process merely designates a person upon whom process may be served,” but “does not constitute implied consent to the jurisdiction.” Id. 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”). Solid.
Pennsylvania is reputedly the only state in the nation with a corporate registration statute specifically providing that a nonresident corporation consents to “general jurisdiction” by complying with the statute. 42 Pa. Cons. Stat. Ann. §5301. Well before Bauman, the Third Circuit interpreted compliance with this statute as consent to suit on any cause of action and as per se sufficient to support for general jurisdiction. Bane v. Netlink, Inc., 925 F.2d 637, 641 (3d Cir. 1991). Some Post-Bauman courts have rejected registration to do business in Pennsylvania as a basis for general jurisdiction. Antonini v. Ford Motor Co., 2017 WL 3633287, at *2 n.2 (M.D. Pa. Aug. 23, 2017) (registration, plus other contacts “more closely resemble those found insufficient to establish general jurisdiction”); McCaffrey v. Windsor at Windermere Ltd. Partnership, 2017 WL 1862326, at *4 (E.D. Pa. May 8, 2017) (registration to do business insufficient for general jurisdiction under Bauman); Spear v. Marriott Hotel Services, Inc., 2016 WL 194071, at *2 (E.D. Pa. Jan. 15, 2016) (rejecting plaintiff’s “reli[ance] solely on the fact that defendants are registered to do business” in Pennsylvania).
However, most decisions applying Pennsylvania law have continued to engage in what is now gross jurisdictional overreach. In the only post-Bauman appellate decision in the country to allow general jurisdiction based solely on registration to do business, Webb-Benjamin, LLC v. International Rug Group, LLC, ___ A.3d ___, 2018 WL 3153602 (June 28, 2018), relied on the statute’s language to permit jurisdiction where the defendant had not even conducted “continuous and substantial” business, since it had not registered in Pennsylvania until after the events that gave rise to suit. Id. at *1.
Guided by the reasoning in Bors and Gorton, we conclude that [Bauman] does not eliminate consent as a method of obtaining personal jurisdiction. Accordingly, pursuant to 42 Pa. C.S.A. §5301, Pennsylvania may exercise general personal jurisdiction over [plaintiff’s] claims against [defendant].
Id. at *5. The consent rationale thus adopted in Webb-Benjamin is thus far 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, gives rise to general jurisdiction.
See also Gorton v. Air & Liquid Systems Corp., 303 F. Supp.3d 278, 297-98 (M.D. Pa. 2018) (finding consent to general jurisdiction under Bors only for companies registered after statute amended to add unique “general jurisdiction” language added in 1978); 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); Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *3-4 (E.D. Pa. June 13, 2017); Kukich v. Electrolux Home Products, Inc., 2017 WL 345856, at *6 (D. Md. Jan. 24, 2017) (following Bors) (applying Pennsylvania law); Bors v. Johnson & Johnson, 208 F. Supp.3d 648, 653-55 (E.D. Pa. 2016). Cf. George v. A.W. Chesterton Co., 2016 WL 4945331, at *3 (W.D. Pa. Sept. 16, 2016) (general jurisdiction not created, even under Bane, by registration after an alleged injury).
However, a 2018 Philadelphia Court of Common Pleas decision has held that to read the Pennsylvania corporate registration statute to impose general jurisdiction after Bauman renders the statute unconstitutional:
Under the current state of Pennsylvania law, the only way foreign corporations such as Defendant can avoid Pennsylvania courts’ assertion of general jurisdiction over them is for those corporations to avoid doing business in Pennsylvania. Faced with this Hobson’s choice, a foreign corporation’s consent to general jurisdiction in Pennsylvania can hardly be characterized as voluntary. In light of the Supreme Court’s repeated admonishment that the Due Process Clause prohibits a state from claiming general jurisdiction over every corporation doing business within its borders, it logically follows the Due Process Clause also prohibits a state from forcing every corporation doing business within its borders to consent to general jurisdiction.
Mallory v. Norfolk Southern Railway Co., 2018 WL 3025283, at *5 (Pa. C.P. Phila. Co. May 30, 2018) (citations omitted). Mallory is on appeal to the same court that decided Webb-Benjamin, 802 EDA 2018, but Webb-Benjamin did not address any constitutional challenge to the statute, so these issues appear to remain open.
As we have explained before, a state statute cannot trump the due process requirements of the federal constitution, so Pennsylvania’s statute and the decisions applying it are of doubtful constitutional validity. Although there are some cracks, with the uniquely adverse statutory language, we’re leaving Pennsylvania in the pro-consent camp unless and until something dramatic happens.
Although no state court has adjudicated this issue, 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 all right.
As long ago as 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. See also Yarborough & Co. v. Schoolfield Furniture Industries, Inc., 268 S.E.2d 42, 44 (S.C. 1980) (corporate domestication statute conferred jurisdiction only as “to causes of action arising directly from the act relied upon to establish jurisdiction”). 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’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, 1391 (8th Cir. 1993) (applying South Dakota law). On the strength of the statute, we think South Dakota will be all right.
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). 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). Since Bauman, federal court decisions have rejected this theory. 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”). Moreover, a Davenport has been construed as relating to specific jurisdiction only. Ratledge v. Norfolk Southern Railway Co., 958 F. Supp.2d 827, 838 (E.D. Tenn. 2013). Tennessee is all over the lot, so we rate it as undecided.
Both state and federal Texas courts have ruled that registration to do business does not amount to consent to jurisdiction. See, e.g., Salgado v. OmniSource Corp., 2017 WL 4508085, at *5 (Tex. App. Oct. 10, 2017) (having a “registered agent in Texas . . . [alone] is not enough to subject a nonresident defendant to general jurisdiction”) (unpublished); Northern Frac Proppants, II, LLC v. 2011 NF Holdings, LLC, 2017 WL 3275896, at *16 (Tex. App. July 27, 2017) (“general jurisdiction contacts are not established by showing that foreign business entities . . . were registered to do business in Texas, and had registered agents for service of process in Texas”) (unpublished); Asshauer v. Glimcher Realty Trust, 228 S.W.3d 922, 933 (Tex. App. 2007) (“having a registered agent and being registered to do business in Texas only potentially subjects a foreign corporation to jurisdiction”); Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405, 416 (Tex. App. 1997) (“By registering to do business, a foreign corporation only potentially subjects itself to jurisdiction.”) (emphasis original); 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 matter”) (applying Texas law); Agribusiness United DMCC v. Blue Water Shipping Co., 2017 WL 1354144, at *5-6 (S.D. Tex. April 13, 2017) (registration and agent for service of process insufficient to be “at home” and therefore subject to general jurisdiction); ADT, LLC v. Capital Connect, Inc., 2015 WL 7352199, at *5 (N.D. Tex. Nov. 20, 2015) (following Wenche); 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); 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.”); 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). Solid.
Utah’s registration statute “[does] not create an independent basis for jurisdiction.” Utah Code Ann. § 16-17-401 (2013); see also Oversen v. Kelle’s Transportation Service, 2016 WL 8711343, at *3 (D. Utah May 12, 2016) (registration does not equate to general jurisdiction because “[n]othing in the text [of the statute] suggests that such an act will give rise to general personal jurisdiction or, for that matter, specific personal jurisdiction in any particular case”); 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 looks good.
Vermont’s statute and state 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”). Somewhat surprisingly, Vermont also looks good.
The consequence of registration with respect to general jurisdiction is unclear, because there is no controlling case law, and the relevant decisions conflict. Most recently, a Virginia trial court ruled 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). New York Commercial followed Reynolds & Reynolds Holdings, Inc. v. Data Supplies, Inc., 301 F. Supp. 2d 545, 551 (E.D. Va. 2004), which held that the consent-by-registration theory does not comport with due process). Id. at 551. Conversely, Cognitronics Imaging Systems, Inc. v. Recognition Research, Inc., 83 F. Supp.2d 689, 693-94 (E.D. Va. 2000), held, well before Bauman, that compliance with a corporate registration statute did result in consent to general jurisdiction. Somewhat surprisingly, Virginia still seems too close to call.
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. Not a lot, but what there is looks good.
By statute, “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; Washington Equipment Manufacturing Co. v. Concrete Placing Co., 931 P.2d 170, 173 (Wash. App. 1997) (“A certificate of authority to do business and appointment of a registered agent do not then confer general jurisdiction over a foreign corporation.”); 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)); 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”); U.S. 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). Washington looks solid.
While the registration statute is silent on the jurisdictional invocations, federal courts have found that 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, 704 F.2d 125 (4th Cir. 1983). The sample isn’t large, but West Virginia looks all right on this issue.
The Wisconsin Supreme Court held post-Bauman that “appointing a registered agent under Wis. Stat. § 180.1507 does not signify consent to general personal jurisdiction. The statute’s plain language does not mention jurisdiction, and [plaintiff’s] proffered deviation from the text would place the statute’s constitutionality into doubt.” Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, 898 N.W.2d 70, 77 (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. Pennsylvania Fire “represent[ed] a disfavored approach to general jurisdiction.” Id. at 82. Now solid.
Wyoming’s registration of foreign corporations statutes and cases have yet to address the issue of consent to general jurisdiction through registration or appointment of an agent. Matching question marks at the beginning and the end of the alphabet.