It’s been a little less than a year since the Supreme Court’s rolling out the red carpet to forum-shopping plaintiffs in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023).  Mallory was, in places 5-4, and elsewhere 4-1-4, and everywhere extremely fact specific – to the point of including a defendant-specific image of its Pennsylvania contacts that, as far as we can tell, wasn’t even in the record, but rather was found on the Internet.  600 U.S. at 142-43.  The result – beyond the Dormant Commerce Clause flag waving in Justice Alito’s concurrence (discussed here) – was to punch this plaintiff’s one-time ticket against the Norfolk Southern Railway.  “To decide this case, we need not speculate whether any other statutory scheme and set of facts would suffice to establish consent to suit.”  Id. at 136.

So we can’t be sure, post-Mallory, whether the Supreme Court would even find general jurisdiction by consent in other decisions from Pennsylvania, e.g. Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133, 1135 (Pa. Super. 2018) (defendant registered in Pennsylvania, but never actually did business, subjected to general jurisdiction in suit over Canadian transaction the pre-dated the defendant’s registration), let alone allow such consent in the absence of the sort of express statutory authorization found uniquely in Pennsylvania.

Of course, that won’t, and hasn’t, stopped forum-shopping plaintiffs from trying to expand Mallory in just about any way they can.  Fortunately, they don’t seem to have had a lot of luck, at least in trying to roll back existing state law.  For one thing, Mallory relied on a century-old decision, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), to resurrect general jurisdiction by consent.  To counter Pennsylvania Fire, defendants have discovered their own century-old United States Supreme Court decision to reinter it – since Pennsylvania is the only state (so far) with a statute explicitly imposing “general” jurisdiction.  Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U.S. 213 (1921), declares that, for Pennsylvania Fire to apply, the statute at issue must do what the plaintiff claims:

Unless the state law either expressly or by local construction gives to the appointment a larger scope, we should not construe it to extend to suits in respect of business transacted by the foreign corporation elsewhere.

Id. at 216.

The closest call we’ve seen among post-Mallory decisions involved Missouri law.  It arose in an MDL, where all too often the law itself is weaponized as another tool to bludgeon defendants into settlements.  Shortly after Mallory, plaintiffs argued that, because Missouri used to allow general jurisdiction by consent (see our Missouri discussion in our 50-state survey), it would revert to that position after Mallory.  That position ignored a unanimous Missouri high court ruling less than a decade old − State ex. rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) – and so did the initial MDL ruling.  See In re Abbott Laboratories, Preterm Infant Nutrition Products Liability Litigation, 685 F. Supp.3d 678, 682-83 (N.D. Ill. 2023).

Fortunately, however, that result was reconsidered in a decision that chose to follow Missouri law as it now is, not how plaintiffs might wish that it used to be.  In re Abbott Laboratories, Preterm Infant Nutrition Products Liability Litigation, 2023 WL 8527415 (N.D. Ill. Dec. 8, 2023), held that Missouri law simply does not impose general jurisdiction simply because a corporation registers to do business there.  Just because Mallory held that a state could do that (at least sometimes), didn’t mean that a state had to do so.

But with the benefit of further briefing, the court concludes [its prior ruling] was in error. . . .  In Dolan, the Missouri Supreme Court held that Missouri’s “registration statute does not provide an independent basis for broadening Missouri’s personal jurisdiction to include suits unrelated to the corporation’s forum activities. . . .  [T]he Dolan court also noted that Missouri has since changed its interpretation of the statute at issue in Pennsylvania Fire, such that it no longer subjects out-of-state insurers to general jurisdiction. . . .  Mallory, then, says nothing about the current interpretation of Missouri’s corporate registration statutes.  It is outside the court’s province to question the Missouri Supreme Court’s own interpretation of Missouri law.

Id. at *4-5 (citations and quotation marks omitted).  Missouri’s statute “reache[d] less broadly than Pennsylvania’s” because it did “not explicitly mention general jurisdiction,” and limited service to suits “arising out of their activities” in state only.  Id. at *4.  Accord Sahm v. Avco Corp., 2023 WL 8433158, at *4 (E.D. Mo. Dec. 5, 2023) (“absent a [state] statute providing an explicit grant of general jurisdiction over registered foreign corporations, the holding in Mallory is not applicable”).

The Mississippi Supreme Court is (so far) the only state high court to adjudicate a Mallory-inspired general jurisdiction by consent claim.  The court “f[ound] no basis to interpret [Mississippi’s] statute to confer general personal jurisdiction over foreign corporations.”  K&C Logistics, LLC v. Old Dominion Freight Line, Inc., 374 So.3d 515, 524 (Miss. 2023).

[A] general statement that a foreign corporation is subject to the same duties, penalties and liabilities as a domestic corporation . . . specifically prohibits a finding of jurisdiction based on the very action that is required for a foreign corporation to obtain a business certificate − the appointment and maintenance of an agent for service of process.  While the statute may be ambiguous, the legislature’s intent is clear.  [It] was not intended to confer general personal jurisdiction through the business registration statutes.

Further, this Court has not found any Mississippi case law that would have put [defendant] on notice that, by registering in this state under our current statutes, it was subjecting itself to the jurisdiction of the courts for any and all matters.

Id. at 524 (citations omitted).  Thus, Mallory did not advance the ball at all for any Mississippi plaintiff.  “Whether consent jurisdiction is created by registration depends entirely on whether it is provided for by state law.”  Id. at 526.  Since Mississippi state law had neither an express statute, as does Pennsylvania, nor a state-law construction to that effect, as does Georgia (and was formerly the case in Pennsylvania Fire), there was “no state law that provides that [defendant] either expressly or impliedly consented to general jurisdiction when it registered to do business.”  Id. at 527.

Nor did Mallory, Pennsylvania Fire, or anything else, require the State of Mississippi to permit general jurisdiction by consent.

Nothing in Mallory or Pennsylvania Fire supports that due process requires a state to assume personal jurisdiction over a corporation that has a registered agent.  It is constitutional for a state not to do so.  Thus, even though [defendant] is registered to do business in Mississippi, consent-by-registration does not apply.

Pace v. Cirrus Design Corp., 93 F.4th 879, 899 (5th Cir. 2024) (applying Mississippi law).  Accord Smith v. Transamerica Corp., 2024 WL 420889, at *4 (S.D. Miss. Feb. 5, 2024).

Most recently, a New Mexico court rejected application of Mallory general jurisdiction by consent in a state that had only recently rejected pre-Bauman precedent that had permitted such jurisdiction.  “New Mexico’s [statute] crucially does not say that registering to do business in New Mexico constitutes consent to general personal jurisdiction over the business entity.”  Bustos v. Ryder Truck Rental, Inc., 2024 WL 2260786, at *7 (D.N.M. May 17, 2024).  The federal court was not about to construe state law in contravention of a 2021 state high court decision.  Id. at 7-8.

[Plaintiffs] argue that the New Mexico Supreme Court “got it wrong” in light of Mallory, which Plaintiffs argue specifically authorizes general personal jurisdiction over Defendant . . . because it is registered to do business in New Mexico. . . .  [The New Mexico Supreme Court] made clear that New Mexico does not follow the consent-by-registration doctrine.  Due process does not require New Mexico to assume a such a scheme.

2024 WL 2260786, at *8.  Bustos also found the Fifth Circuit’s reasoning in Pace persuasive in that Mallory in no way mandated universal adoption of general jurisdiction by consent.  Id.

The day before Bustos, a Texas appellate court rejected a similar argument that “the Supreme Court’s decision in Mallory abrogates our personal jurisdiction precedent.”  Repairify, Inc. v. Opus IVS, Inc., 2024 WL 2205663, at *1 (Tex. App. May 16, 2024) (unpublished).  “Mallory never sought to instruct how to read a state’s statutes or whether to intuit from them that they meant a registering business consented to general jurisdiction in the absence of a clear statement of that consent.”  Id.

Mallory has no effect on this court’s interpretation of the Texas non-resident corporation registration scheme and we decline the invitation to reinterpret settled Texas law. . . .  [Thus,] we reject [plaintiff’s argument], asking us to conclude Texas’s statutory scheme related to non-resident businesses requires a conclusion that [defendant] has consented to general jurisdiction in Texas simply by registering to do business here.

Id.  Accord AssetWorks USA, Inc. v. Battelle Memorial Institute, 2023 WL 7106878, at *2 (W.D. Tex. Oct. 23, 2023) (“the holding of Mallory is narrow, and given that the Texas statute concerning registration of nonresident corporations neither mentions general jurisdiction nor mirrors the structure of the Pennsylvania statute, this Court sees no need to abandon established Fifth Circuit precedent”).

A couple of months ago, the plaintiff in Madsen v. Sidwell Air Freight, 2024 WL 1160204, at *5 (D. Utah March 18, 2024), claimed that corporate registration in Utah meant general jurisdiction by consent.  Nope.

[U]nlike the statute at issue in Mallory, none of these Utah statutes expressly inform a foreign corporation . . ., that it will be subject to general jurisdiction if it registers to do business in Utah.  Because they do not do so, they cannot serve to establish DHL’s consent to general jurisdiction in Utah.

Id. at *9 (relying in part on Mitchell Furniture).

Lumen Technologies Service Group v. CEC Group, LLC, ___ F. Supp.3d ___, 2023 WL 5822503 (D. Colo. Sept. 8, 2023), held in accordance with pre-Mallory Colorado law that the state’s statute does not equate corporate registration with general personal jurisdiction.  Unlike Mallory, “no Colorado statute . . . expressly notifies a non-resident corporation that, by registering to do business in Colorado (or by designating a registered agent in Colorado), the corporation consents to the personal jurisdiction of this state.”  Id. at *5.

Because these statutes do not expressly inform foreign corporations of any personal jurisdiction consequences of registering to do business or designating an agent in the state, these laws cannot serve as a basis to find [defendant’s] implied consent to Colorado courts’ personal jurisdiction.

Id. at *6 (also following Mitchell Furniture).  Accord Pilgrim’s Pride Corp. v. Allegiant Electric, Inc., 2024 WL 625500, at *5 n.1 (D. Colo. Feb. 14, 2024) (“a business’s registration in the state of Colorado or designation of a registered agent in Colorado does not amount to consent to the personal jurisdiction of Colorado courts”) (following Lumen).

California has never allowed general jurisdiction by consent, and Mallory did not change that.  Rosenwald v. Kimberly Clark Corp., 2023 WL 5211625, at *6 (N.D. Cal. Aug. 14, 2023) (Mallory “is not relevant to courts in California, because ‘California does not require corporations to consent to general personal jurisdiction in that state when they designate an agent for service of process or register to do business’”) (citation omitted); Dormoy v. HireRight, LLC, 2023 WL 5110942, at *6 (N.D. Cal. Aug. 9, 2023) (same result quoting same language).

New Jersey’s pre-Mallory precedent rejecting general jurisdiction by consent survived in Simplot India LLC v. Himalaya Food International Ltd., 2024 WL 1136791 (D.N.J. March 15, 2024).  New Jersey’s statute “does not mention consent or otherwise contain any language intimating that the foreign corporation will be subject to suit in this state for conduct that occurred elsewhere.”  Id. at *10.  Accord iAbira Medical Laboratories, LLC v. Mutual of Omaha Insurance Co., 2024 WL 2746088, at *3 n.2 (D.N.J. May 29, 2024) (quoting Castillero); Haller v. Usman, 2024 WL 124629, at *5 (D.N.J. Jan. 10, 2024) (“registration in New Jersey did not provide consent to personal jurisdiction because the relevant statutes do not expressly discuss consent or general jurisdiction”) (citation and quotation marks omitted); Castillero v. Xtend Healthcare, LLC, 2023 WL 8253049, at *5 n.8 (D.N.J. Nov. 29, 2023) (“New Jersey’s registered agent statutes, unlike Pennsylvania’s, do not explicitly require a corporation to consent to personal jurisdiction”).

The same is true in Delaware.  After Bauman, the Delaware Supreme Court abandoned general jurisdiction by consent.  Mallory did not resurrect that theory.

[T]he majority explicitly limited Mallory’s interpretation to Pennsylvania’s unique statutory scheme.  That scheme is atypically precise in declaring that registering to do business constitutes consent to personal jurisdiction.  Delaware’s statute, in contrast, makes no such pronouncement.  So, whether this state’s business registration requirements extract consent to jurisdiction from registrants is a matter of statutory interpretation.  Our Supreme Court’s most recent guidance holds that they do not.

Urvan v. AMMO, Inc., 2024 WL 863688, at *15 (Del. Ch. Feb. 27, 2024) (footnotes omitted).  “[O]nly the Delaware Supreme Court may revisit its own interpretation of the key Delaware statutes.”  Id. at *15.

New York courts likewise continue to reject general jurisdiction by consent after Mallory.  Vaval v. Stanco, LLC, 196 N.Y.S.3d 751, 753 (N.Y. App. Div. 2023) (“a foreign corporation’s designation of a New York agent for service of process does not constitute consent to the exercise of general jurisdiction in New York courts”); Christie v. Hyatt Corp., 2024 WL 2387513, at *5 n.5 (E.D.N.Y. May 23, 2024) (“a foreign corporation does not consent to general personal jurisdiction in New York by merely registering to do business”); Bendit v. Canva, Inc., 2023 WL 5391413, at *3 (S.D.N.Y. Aug. 22, 2023) (“registering to do business in New York does not constitute consent to the exercise of general jurisdiction by New York courts”); Custom Truck One Source, LP v. Clearway Industries, LLC, 2024 WL 372026, at *2 (N.Y. Sup. Jan. 25, 2024) (“A foreign corporation does not consent to general jurisdiction simply by compliance with the NY Business Corporation Law requirements of registering with the Secretary of State.”).

Lack of any form of general jurisdiction by consent in Ohio survived a Mallory challenge in Union Home Mortgage Corp. v. Everett Financial, Inc., 2023 WL 6465171 (N.D. Ohio Oct. 4, 2023).

The key operative fact of the Mallory decision was that the Pennsylvania statute at issue acted as an explicit consent to general jurisdiction as part of the “registration to do business” process, whereas the corollary Ohio statutes contain no such consent provision.

Id. at *3 (citations omitted).  Accord Walton v. Guardian Life Insurance Co., 2024 WL 47700, at *3 (S.D. Ohio Jan. 4, 2024) (“Ohio does not require business registrants to consent to general jurisdiction”) (following Union Home).

Florida also continues to reject general jurisdiction by consent after Mallory.

Plaintiffs argue that because Defendants are registered to do business in Florida, they have consented to personal jurisdiction in Florida.  While an interesting argument post-Mallory . . ., the Eleventh Circuit has held that the text of Florida’s registration statute does not amount to consent to general jurisdiction.

Jastrjembskaia v. inCruises LLC, 2023 WL 5246817, at *2 (S.D. Fla. Aug. 2, 2023) (citation omitted).  “Florida law does not establish that a foreign corporation’s registration to do business in Florida amounts to consenting to general jurisdiction in Florida courts.  Thus, Mallory does not apply here.”  Estate of Caviness v. Atlas Air, Inc., ___ F. Supp.3d ___, 2023 WL 6802950, at *3 (S.D. Fla. Sept. 20, 2023).

Mitchell Furniture supported a defense win in North Carolina., which had long rejected the Mallory result as a matter of state law.

Mallory is inapposite because North Carolina law, unlike that of Pennsylvania, does not require foreign corporations that register to do business in North Carolina to also consent to suit in the state.  Plaintiff’s contention, that the act of registration and appointment of an agent by a foreign corporation represents implicit consent to personal jurisdiction, would vastly expand the holding in Mallory (which specifically addressed express consent) and finds no support in Fourteenth Amendment jurisprudence.

Bancredito Holding Corp. v. Driven Administrative Services LLC, 2024 WL 731956, at *3 (E.D.N.C. Jan. 8, 2024).

Adjacently, in Tennessee, Pritchard v. Thompson, 2023 WL 5817658 (Mag. W.D. Tenn. Aug. 3, 2023), adopted, 2023 WL 5746922 (W.D. Tenn. Sept. 6, 2023), reached essentially the same result.

Given the lack of explicit language in the Tennessee statute stating that registration of a foreign corporation constitutes consent to the exercise general personal jurisdiction, . . . this case is distinguishable from Mallory.  Unlike a corporation registering to do business in Pennsylvania, [defendant] did not expressly consent to the general personal jurisdiction of Tennessee merely by complying with Tennessee’s statute.  Because there has been no consent, the International Shoe framework [the “at home” requirement] applies.

Id. at *6.

In In re Aqueous Film-Forming Foams Products Liability Litigation, 2023 WL 6846676 (D.S.C. Oct. 17, 2023), the plaintiffs lost again because Mallory was a “limited” decision, involving only “where a state’s business registration statute provides that a foreign corporation must consent to personal jurisdiction within the state as a condition of doing business.”  Id. at  *5.  No general grant of “consent” jurisdiction existed in South Carolina, so plaintiffs were greatly overreading Mallory:

Otherwise, Mallory would require any foreign corporation registered to do business within a state, regardless of where it was incorporated or had its principal place of business and regardless of its contacts with a state, to submit to personal jurisdiction within the state.  This plainly exceeds the very limited scope of Mallory.

Id.

Wisconsin, another state that disavowed general jurisdiction by consent after Bauman, has also concluded that Mallory changes nothing.  “Mallory involved a consent to jurisdiction scheme that does not exist under Wisconsin’s statutes.”  Endo Ventures Unlimited Co. v. Nexus Pharmaceuticals, Inc., 2024 WL 1254358, at *4 (E.D. Wis. March 25, 2024) (citation omitted).

As we discussed, even in Pennsylvania, plaintiffs have managed to interpret Mallory beyond its bounds.  In Simon v. First Savings Bank of Indiana, ___ F. Supp.3d ___, 2023 WL 5985282 (E.D. Pa. Sept. 14, 2023), the defendant made the quite logical post-Mallory decision to do business in Pennsylvania – without bothering to register.  It worked.  The plaintiff’s argument that the infamous “general jurisdiction” consent statute should apply even in the absence of any registration failed.

Even if defendants failed to register in violation of Pennsylvania law, plaintiffs point to no authority and the Court has found none that as a consequence the corporation is deemed to be subject to general jurisdiction. . . .  [The statute] specifically allows [an unregistered defendant] to defend an action. . . .  Significantly, it says nothing about implied consent to general jurisdiction as a result of such a violation.

Id. at *3.  To extend the effect of the statute to unregistered (legally or not) corporations “would considerably expand the reach of Mallory,” which (as we discussed at the outset of this post) “the Supreme Court carefully limited . . . to the underlying facts.”  Id.

To date, anyway, Mallory has not resulted in the rolling back of any state’s decision not to allow general jurisdiction by consent.  At most it seems to have frozen the states in the positions they were in before Mallory was decided – halting the erosion of the consent by registration position that had occurred following Bauman.