We’ve blogged about the United States Supreme Court’s pending personal jurisdiction cases before.  Well, they pend no longer.  Yesterday the Court unanimously (with a couple of concurrences) ruled that resident plaintiffs injured by products originally manufactured and sold elsewhere could sue a nationwide company like Ford – that “purposefully avail[ed] itself of the privilege of conducting activities within the forum State” – in their home states, rather than sue only where such a defendant was “at home.”  Ford Motor Co. Montana Eighth Judicial District Court, ___ S. Ct. ___, 2021 WL 1132515, at *4 (U.S. March 25, 2021) (here is the slip opinion for those without the luxury of law firm resources).

While plaintiffs in product liability litigation involving durable, mobile products dodged a jurisdictional bullet in Ford v. Montana, we don’t view this case as bad news for our clients selling single-use products that continually face masses of forum-shopping litigation tourists.

We explain.

First and foremost, the key fact – emphasized throughout Ford v. Montana – is precisely that those plaintiffs were not litigation tourists.  From the very first paragraph of the opinion:

The accident happened in the State where suit was brought.  The victim was one of the State’s residents.  And [defendant] did substantial business in the State − among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective.

2021 WL 1132515, at *3.  And again:

[H]ere, the plaintiffs are residents of the forum States.  They used the allegedly defective products in the forum States.  And they suffered injuries when those products malfunctioned in the forum States.  In sum, each of the plaintiffs brought suit in the most natural State.

Id. at *8.  See id. at *7 (describing cases as “brought by state residents”), *8 (jurisdiction “when the product malfunctions there”); id. (invoking state interest in “providing [their] residents with a convenient forum”); at *9 (“resident-plaintiffs allege that they suffered in-state injury”).

For our purposes that matters a lot, because the Supreme Court took pains to clarify the basis for its recent Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), decision as barring personal jurisdiction over suits brought by forum-shopping non-residents whose injuries and product use occurred elsewhere.  Shutting down litigation tourism has always been at the core of our interest in personal jurisdiction.

Since BMS was decided, plaintiffs have relied on a recitation (in the facts section of that opinion) of the what the BMS plaintiffs failed to show – that the defendant “did not develop” the product, “did not create a marketing strategy,” and “did not manufacture, label, package, or work on the regulatory approval of the product” in the forum state, 137 S. Ct. at 1778 – as a wish list.  They argue that  even litigation tourists can use such purported contacts to assert “specific” personal jurisdiction, all the while ignoring the BMS court’s recitation of what had been affirmatively proven:

As noted, the nonresidents were not prescribed [the drug] in California, did not purchase [the drug] in California, did not ingest [the drug] in California, and were not injured by [the drug] in California.  The mere fact that other plaintiffs were . . . does not allow the State to assert specific jurisdiction over the nonresidents’ claims.

BMS, 137 S. Ct. at 1781.

That route should no longer be open to litigation tourists.  Ford v. Montana made it crystal clear just what the BMS Court had “emphasiz[ed],” 2021 WL 1132515, at *8, in reaching the conclusion that specific personal jurisdiction could not lie:

We found jurisdiction improper in [BMS] because the forum State, and the defendant’s activities there, lacked any connection to the plaintiffs’ claims.  The plaintiffs, the Court explained, were not residents of California.  They had not been prescribed [the drug] in California.  They had not ingested [the drug] in California.  And they had not sustained their injuries in California.  In short, the plaintiffs were engaged in forum-shopping − suing in California because it was thought plaintiff-friendly, even though their cases had no tie to the State.

Id. (BMS citations omitted) (emphasis added).

We mentioned in reviewing the oral argument that “litigation tourism has a bad name,” and boy were we right about that. Non-resident forum-shoppers cannot constitutionally assert specific personal jurisdiction, absent in-state product use or injury:

Yes, [defendant] sold the specific products in other States, as Bristol-Myers Squibb had.  But here, the plaintiffs are residents of the forum States.  They used the allegedly defective products in the forum States.  And they suffered injuries when those products malfunctioned in the forum States.

Id.  That is the court-described “key part” of BMS’s rationale why personal jurisdiction was unconstitutional in that case.  Id. at *9.  Forum shoppers lack any “affiliation between the forum and the underlying controversy,” id. at *5 (quoting BMS), and that’s what mattered – not any supposedly missing facts about a defendant’s forum contacts that litigation tourists might be able to dredge up.

Our second observation is that we question whether there is anything left of “stream of commerce” personal jurisdiction after Ford v. Montana.  Given the roundabout way that the particular products at issue reached the forum states, through “later resales and relocations by consumers,” 2021 WL 1132515, at *3, Ford v. Montana had all the makings of a stream of commerce case.  But “stream of commerce” is nowhere mentioned, even though plaintiffs and most of their amici relied (in part) on stream of commerce cases.  The only basis for jurisdiction that the Court addressed was whether the litigation was sufficiently “related to” (which the Court treated as separate from “arising from,” 2021 WL 1132515, at *5) the defendant’s contacts with the relevant states.

Thus, to the extent that “stream of commerce” claims involve defendants that plaintiffs can allege “extensively promoted, sold, and serviced” the allegedly “defective product” in the forum state, 2021 WL 1132515, at *9, they will no longer need to rely on a stream of commerce theory.  That takes the more sympathetic cases out of the mix.  As for the rest, lacking “systematic contacts,” id. at *7 – the cases in which stray products find their way into states where defendants did not otherwise market them – Ford v. Montana provides cold comfort:

That does not mean anything goes.  In the sphere of specific jurisdiction, the phrase “relate to” incorporates real limits, as it must to adequately protect defendants foreign to a forum.

Id. at *5.  Jurisdictional “contacts must be the defendant’s own choice and not “random, isolated, or fortuitous.”  Id. at *4 (citation and quotation marks omitted).  See Id. at *9 (discussing lack of defense forum contacts in Walden v. Fiore, 571 U.S. 277 (2014)).

Ford v. Montana certainly suggests, if not outright holds, that “specific jurisdiction attaches . . . when a company like [defendant] serves a market for a product in the forum State.”  Id. at *6.  Thus, defendants in cases like Asahi Metal Industry Co. v. Superior Court, 480 U. S. 102, 110 (1987), and J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), can cite Ford v. Montana as further authority for the absence of specific personal jurisdiction in fortuitously-located product cases, where there is no evidence that they “deliberately extended” their product marketing into wherever they are being sued.  2021 WL 1132515, at *6.

Third, and finally, we point out something else we mentioned in our oral argument post – the looming presence of e-commerce.  Footnotes in Ford v. Montana suggest to us that the Court is ready to delve into cutting edge personal jurisdiction issues involving allegations of Internet-based product sales and other contacts.

One of the concurrences here expresses a worry that our [jurisdictional] body of law is not “well suited for the way in which business is now conducted,” and tentatively suggests a 21st-century rethinking.  Fair enough perhaps….

Id. at *5 n.2.  A bit later on, “we do not here consider internet transactions, which may raise doctrinal questions of their own.”  Id. at *7 n.4.  We don’t hazard a guess how the Court would rule in an Internet-only forum contacts case, but we flag the issue because it is likely to arise at the Supreme Court level in the relatively near future.

New Mexico calls itself the Land of Enchantment, and with good reason. Carlsbad Caverns, White Sands National Monument, the Albuquerque Balloon Festival, the ski slopes of Taos, and Chaco Culture National Historic Park are all splendid visual treasures. A green chili burger is a lovely work of art. And there is a reason all that background scenery in Breaking Bad and Better Call Saul is so arresting.

But New Mexico’s place in the law has not always been enchanting. The notorious McDonald’s hot coffee case was decided in New Mexico. (We might be asked to turn in our Defense Hack card for saying this, but we’re not sure that case was wrongly decided. Sure, everybody knows that coffee is hot. But McDonald’s coffee used to be insanely – call it unreasonably – hot. And did you see photos of that plaintiff’s burns?)

So much for history. Shortly before Thanksgiving, the New Mexico Supreme Court made corporate defendants grateful by rejecting the theory that corporate registration in the state constitutes consent to personal jurisdiction. The case, Chavez v. Bridgestone Ams. Tire Operations, LLC et al., 2021 N.M. LEXIS 74 (New Mexico Nov. 15, 2021), was a consolidated appeal involving four car accidents. The defendants were automobile and tire companies, so Chavez is not a drug or device case. Nevertheless, its holding has implications for our area of the law. Plus, the Chavez holding offers a bright contrast to some dimmer jurisdictions.

The defendants were foreign corporations (i.e., neither incorporated in nor having a principal place of business in New Mexico) that had challenged personal jurisdiction in the tort cases brought against them. The implicated products were not designed or manufactured in New Mexico, though they were marketed and distributed there. The lower courts rested personal jurisdiction on the corporations’ registrations to do business in New Mexico, citing both New Mexico precedent as well as the ancient (1917) SCOTUS decision in Pennsylvania Fire, which upheld consent by registration.

The defendants argued that the exercise of personal jurisdiction violated the 14th amendment, the dormant commerce clause, and the doctrine of unconstitutional conditions. More to the point, the defendants argued that “contemporary personal jurisdiction jurisprudence” (Bauman and progeny) “has overruled, sub silentio,” Pennsylvania Fire.

In a unanimous opinion, the New Mexico Supreme Court overturned the Court of Appeals and ruled that the corporation registrations to do business did not equal consent to personal jurisdiction. In an exercise of judicial modesty and restraint, the New Mexico Supreme Court did not reach the constitutional issues at all, including the viability of Pennsylvania Fire. Rather, the court decided that the New Mexico Business Corporation Act (BCA) “does not require a foreign corporation to consent to general personal jurisdiction in New Mexico.”

The best thing the plaintiffs had going for them was a 1993 New Mexico Court of Appeals decision construing the BCA to require foreign corporations to consent to personal jurisdiction. That construction did not rest upon the plain language of the BCA. Instead, the Court of Appeals discerned a legislative intent behind BCA to “equalize domestic and foreign corporations under New Mexico law.” Huh? We are not even sure what it means to equalize domestic and foreign corporations. They are clearly not equal; they are not equally situated. Moreover, what is the policy served by such equalization?

Justice Kagan said that we are all textualists now. Scalia had won. The triumph of textualism has now reached Santa Fe. In Chavez, the New Mexico Supreme Court concluded that “the plain language of the BCAs does not require a foreign corporation to consent to jurisdiction.” The court refused to graft a consent requirement onto registration, and saw no clear legislative intent to require foreign corporations to consent to jurisdiction.

The old equalization theory made no sense. In fact, it created inequality, because foreign corporations lost any right to challenge due process violations associated with personal jurisdiction, while domestic corporations retained such right. In any event, equalization was adequately assured by New Mexico’s long arm statute, which extends specific personal jurisdiction to any duties, restrictions, penalties, and liabilities arising from or relating to any corporation’s activities in the state, “thus ensuring that our state courts may enforce a foreign corporation’s forum-related obligations.”

The Chavez court acknowledged that the earlier construction of the BCA to require consent was read against older personal jurisdiction (e.g., the 1877 Pennoyer case, which bedeviled us in Civil Procedure class). We’ve come a long way since Pennoyer, through International Shoe to Bauman to Bristol-Myers Squibb. Now the primary focus is on the corporation’s relationship to the forum. Certainly since Bauman the focus of general personal jurisdiction has been on the due process rights of defendants, not the convenience of the plaintiffs. The Chavez court would not presume that the legislature “intended to embrace Pennoyer-era fictions discarded long before the BCA’s enactment.” Accordingly, the Chavez case overruled the Court of Appeal and held that corporate registration did not constitute consent to personal jurisdiction.

We saw a press account of the Chavez case in which one of the plaintiff lawyers predicted that there will still be personal jurisdiction over at least some of the companies because three of the four car accidents took place in New Mexico. Maybe. Maybe there will be specific personal jurisdiction via this year’s SCOTUS Ford Motor case, which we discussed here. But there is no maybe about the fact that the New Mexico Supreme Court took the right step in rejecting the consent via registration fiction. New Mexico is a beautiful place far, far away from where we live and practice. It would be nice if some courts in our area would follow New Mexico’s lead.

Speaking of which, in the past several weeks no fewer than three state high courts have decided this issue. We have posts about the other two — GA (bad) and NY (good). Most of the appellate decisions, both state and federal, are favorable. The Pennsylvania Supreme Court is currently considering the issue and is so pro-plaintiff that we tremble at the prospect of it becoming only the second appellate court since Bauman to go bad on the issue.

By the way, one of the appellate defense lawyers in Chavez was Sean Marotta (Hogan Lovells), who maintains one of the better lawyer Twitter accounts. He comes across as funny and generous and wise.

Today’s decision strays from the field of prescription drug/device law, but we take this detour because Aybar v. Aybar, 2021 N.Y. LEXIS 2134 (N.Y. Ct. App. Oct. 7, 2021) is an important jurisdictional decision – one with over 100 years of legal precedent to sort out.

Plaintiffs were involved in an automobile accident in Virginia allegedly due to a defective tire.  The driver had purchased the vehicle in New York from a third-party.  Plaintiff brought products liability claims in New York against the manufacturer of the car, Ford, and the manufacturer of the tire, Goodyear.  Ford is a Delaware corporation with its principal place of business in Michigan, and Goodyear is both incorporated in and has a principal place of business in Ohio.  Id. at *2-3.  Ford and Goodyear, of course, do business in New York.  To do so, both companies had to comply with New York’s Business Corporation Law (“BCL”) which requires foreign companies to register with the New York Secretary of State and appoint in-state agents for service of process.  Id. at *3.

Plaintiffs did not allege that the court had specific jurisdiction over either defendant.  Nor did plaintiff argue that defendants were “essentially at home in New York” such that there was general jurisdiction under Goodyear Dunlop Tires Operations, S.A. v Brown, 564 US 915 (2011) or Daimler AG v Bauman, 571 US 117 (2014).  Id. at *4.   Plaintiffs’ sole argument was that defendants consented to general jurisdiction in New York by registering to do business and appointing an agent for service in the state.  Id. at *5.

The court had a fundamental problem with plaintiffs’ argument because it did not abide by the plain terms of the BCL.  The statute does not require that a defendant consent to general jurisdiction in order to do business in New York and interpreting it that way would “improperly amend the statute by adding words that are not there.”  Id. at *6 (citation omitted).

But plaintiffs were not without some precedent for their argument.  The linchpin of plaintiffs’ argument was the case Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432 (1916).  Plaintiffs interpreted that case as broadly conferring general jurisdiction over any company who complied with the BCL.  The Aybar court, however, did not agree that the Bagdon decision went that far.

Bagdon involved a New York resident who was injured in Pennsylvania while working for a Pennsylvania company who, like Ford and Goodyear, had complied with the BCL.  Id. at *7-8.  Plaintiff then served his lawsuit on the defendant in New York.  Defendant argued that its agent’s authority to accept service in New York was “limited to actions which [arose] out of the business transacted in New York.”  Id. at *8.  As the business between plaintiff and defendant arose in Pennsylvania, defendant argued the service of process and by extension the exercise of personal jurisdiction was invalid.  Id.

Bagdon, therefore, answered a narrow question – whether the service of process conferred jurisdiction over the defendant for “any subject matter jurisdiction properly exercised by New York courts.”  Id. (emphasis added).  In other words, Bagdon did not decide that simply registering under the BCL established general personal jurisdiction.  Rather, the court was examining the “effect-of-service question” which they had to do “through the lens of the then-applicable jurisdiction principles.”  Meaning, Bagdon was decided in the context of Pennoyer v Neff, 95 US 714 (1877).

[T]he Court determined that jurisdiction existed not because the corporation “consented” to it, but because then existing Supreme Court precedent established, consistent with Pennoyer v Neff‘s territorial approach, that in-state service on a foreign corporation present in the state afforded general jurisdiction.

Id. at *10.  A lot has happened since Pennoyer and Bagdon.  Starting with the minimum contacts test from International Shoe Co. v. Washington, 326 U.S. 310 (1945) – itself over 75 years old – which “crystalized the two categories of personal jurisdiction” – general and specific.  Id. at *14-15.  Since that time, the Supreme Court has simultaneously “rapidly expanded” specific jurisdiction while it “has limited general jurisdiction’s reach to a narrow class of defendants.”  Id. at *15.  Likely why the court noted that it has not cited Bagdon since International Shoe was decided.  Id. at *16n.7.

The Supreme Court has decided that the exercise of general jurisdiction is only appropriate where the defendant’s affiliations with the state “are so continuous and systematic as to render them essentially at home in the forum state.”  Id. at *16.  That was not the state of the law when Judge Cardozo considered the issue.  In 1916, “the defendant’s consent to service of process had the effect of conferring general jurisdiction.”  Id. at *17.  That was the rationale for the decision in Bagdon, not a conflation of “statutory consent to service with consent to general jurisdiction.”  Id.

Today, the exercise of general jurisdiction in every state in which a corporation engages in a substantial, continuous, and systematic course of business would be “unacceptably grasping” [under Bauman.]

Id. at *15.  Therefore, the court did not interpret New York’s BCL as allowing general jurisdiction based on registration to do business.

Because of this statutory interpretation, the court did not directly address due process.  There is a lengthy dissent joined by two judges that we leave to our readers to explore on their own if of interest.

Sooner or later we knew it would happen.  The law on general jurisdiction by consent has been developing very favorably – maybe even too favorably.  Since Daimler AG v. Bauman, 571 U. S. 117 (2014), almost every appellate decision (including every state court of last resort and federal circuit court) has rejected general jurisdiction by consent:  Lanham v. BNSF Railway Co., 939 N.W.2d 363, 371 (Neb. 2020); State ex rel. Cedar Crest Apartments, LLC v. Grate, 577 S.W.3d 490, 494 (Mo. 2019); DeLeon v. BNSF Railway Co., 426 P.3d 1, 4, 8-9 (Mont. 2018); Aspen American Insurance Co. v. Interstate Warehousing, Inc., 90 N.E.3d 440, 447-48 (Ill. 2017); State ex. rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41, 47 (Mo. 2017); Figueroa v. BNSF Railway Co., 390 P.3d 1019, 1021-22 (Or. 2017); Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, 898 N.W.2d 70, 81-82 (Wis. 2017); Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 884 (Cal. 2016), reversed on other grounds, 137 S.Ct. 1773 (2017); Magill v. Ford Motor Co., 379 P.3d 1033, 1038 (Colo. 2016); Genuine Parts Co. v. Cepec, 137 A.3d 123, 127-28 (Del. 2016); Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 499 (2d Cir. 2020) (applying New York law); Fidrych v. Marriott International, Inc., 952 F.3d 124, 137 (4th Cir. 2020) (applying South Carolina law); Waite v. All Acquisition Corp., 901 F.3d 1307, 1319 & n.5 (11th Cir. 2018) (applying Florida law); Brown v. Lockheed-Martin Corp., 814 F.3d 619, 640 (2d Cir. 2016) (applying Connecticut law); Aybar v. Goodyear Tire & Rubber Co., 106 N.Y.S.3d 361, 362 (N.Y.A.D. 2019); Fekah v. Baker Hughes, Inc., 110 N.Y.S.3d 1, 2 (N.Y.A.D. 2019); Best v. Guthrie Medical Group., P.C., 107 N.Y.S.3d 258, 260 (N.Y.A.D. 2019); Aybar v. Aybar, 93 N.Y.S.3d 159, 166 (N.Y.A.D. 2019), app. granted, 139 N.E.3d 391 (N.Y. 2019); Seeley v. Caesars Entertainment Corp., 206 A.3d 1129, 1133 & n.9 (Pa. Super. 2019); Wal-Mart Stores, Inc. v. Lemaire, 395 P.3d 1116, 1120 (Ariz. App. 2017); Dutch Run Mays Draft, LLC v. Wolf Block LLP, 164 A.3d 435, 444 (N.J. App. Div. 2017); Magwitch, LLC v. Pusser’s West Indies, Ltd., 200 So.3d 216, 218 (Fla. App. 2016).  Federal district courts in over 20 additional jurisdictions have agreed.  See the Blog’s Post-BMS Personal Jurisdiction Cheat Sheet (search for “register”).

On the other side, not so much, just Rodriguez v. Ford Motor Co., 458 P.3d 569, 575-78 (N.M. App. 2018), cert. granted, No. S-1-SC-37491 (N.M. April 8, 2019), and Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133, 1137-38 (Pa. Super. 2018), and a smattering of district courts, mostly in Pennsylvania.

All this uniformity meant that no split in authority had developed, either between state high courts or among federal circuit courts (or both), such that an appeal to the United States Supreme Court of the issue would have a decent likelihood of success.

Until now.  We thought that Pennsylvania, with its pro-plaintiff supreme court, “deep end” jurisdictional rulings on other issues, split appellate authority, and unusual Long Arm statute (discussed here), was the most likely candidate to break the string and to create a certiorari-worthy precedential split.

Turns out we were wrong.

On the same day that the general jurisdiction by consent issue was argued to the Pennsylvania Supreme Court, the Georgia Supreme Court created a state high court split in Cooper Tire & Rubber Co. v. McCall, ___ S.E.2d ___, 2021 Ga. Lexis 626 (Ga. Sept. 21, 2021) (“McCall”).  However, the Georgia court did so reluctantly – essentially anticipating that the United States Supreme Court would take the case.  Moreover, the ruling was driven by a longstanding problem with the Georgia Long Arm statute.

The facts in McCall are relatively typical of this sort of case.  A Florida litigation tourist, claiming injury from an accident that occurred in Florida, sued the defendant, a nation-wide corporation, in Georgia.  There was nothing particularly special about Georgia in the defendant’s operations – it was neither the defendant’s principal place of business nor its state of incorporation.  2021 Ga. Lexis 626, at *2-3.

The Georgia Long Arm statute permitted “personal jurisdiction over any nonresident . . . in the same manner as if he or she were a resident of this state” with respect to certain “enumerated acts”:  “business” in Georgia, a “tortious act or omission” in Georgia or causes “tortious injury” in Georgia, if the defendant “regularly does” business or “derives substantial revenue from goods” in Georgia.”  Ga. Code §9-10-91.  Oddly, however, the statute defined “nonresident” as excluding corporations that had registered to do business in Georgia.

the term “nonresident” includes . . . a corporation which is not organized or existing under the laws of this state and is not authorized to do or transact business in this state

Ga. Code §9-10-90 (emphasis added) (quoted in McCall, 2021 Ga. Lexis 626, at *13).

That definitional quirk caused problems, since Ga. Code §9-10-91 is considered to be a definition of specific, rather than general, personal jurisdiction.  McCall, 2021 Ga. Lexis 626, at *13.  With registration to do business statutorily excluded as a basis for specific jurisdiction, unless it formed a basis for general jurisdiction, the Georgia Long Arm statute provided no basis at all for the exercise of personal jurisdiction over registered foreign corporations.  In a pre-Bauman decision, Allstate Insurance Co. v. Klein, 422 S.E.2d 863 (Ga. 1992) (“Klein”), the court confronted this drafting mistake, and rather than tell the legislature to fix it, it opted to subject registered foreign corporations to general personal jurisdiction by negative implication, considering them to be state “residents.”

[A] corporation which is “authorized to do or transact business in this state at the time a claim” arises is a “resident” for purposes of personal jurisdiction over that corporation in an action filed in the courts of this state.  As a resident, such a foreign corporation may sue or be sued to the same extent as a domestic corporation.

Klein, 422 S.E.2d at 865.  Klein was a very short opinion, and neither side raised a constitutional issue.  Id. n.3.  McCall conceded that Klein’s “inverse implication” creating general jurisdiction by registration “may not have been well-explained,” but it was also “not clearly wrong under the [pre-Bauman] governing case law at the time.  Id. at *26.

Thus, hanging over the McCall decision, and mentioned several times, was the Georgia Long Arm statute’s poor draftsmanship:

[H]ad the Court [in Klein] reached a different conclusion, a jurisdictional gap would have emerged whereby a registered out-of-state corporation would apparently not have been subject to any jurisdiction in Georgia − specific or general.

McCall, 2021 Ga. Lexis 626, at *26; accord id. at *27, 28.

The United States Supreme Court’s intervening constitutional decisions, however, had limited general personal jurisdiction in ways that the Georgia court candidly (and repeatedly) admitted were “in tension” with the holding in KleinMcCall, 2021 Ga. Lexis 626, at *1, 3, 29.  McCall quoted the Supreme Court’s most recent statement of general jurisdiction:

General jurisdiction, as its name implies, extends to any and all claims brought against a defendant.  Those claims need not relate to the forum State or the defendant’s activity there; they may concern events and conduct anywhere in the world.  But that breadth imposes a correlative limit:  Only a select set of affiliations with a forum will expose a defendant to such sweeping jurisdiction.  In what we have called the “paradigm” case, an individual is subject to general jurisdiction in her place of domicile.  And the equivalent forums for a corporation are its place of incorporation and principal place of business.

Id. at *10 (quoting Motor Co. v. Montana Eighth Judicial Dist. Court, 141 S. Ct. 1017, 1024 (2020)).  Other decisions that McCall acknowledged as applying this limited scope to general jurisdiction are:  Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017), Daimler AG v. Bauman, 571 U.S. 117 (2014), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).  McCall, 2021 Ga. Lexis 626, at *9-10.

To avoid a result that would resurrect the “jurisdictional gap” that it had avoided in Klein, the Georgia Supreme Court in McCall relied on the century-old, Pennoyer-era decision, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), which allowed general jurisdiction to be based on “consent” created by a foreign corporation’s registration to do business.  McCall justified doing so because Pennsylvania Fire was a “decision that the Supreme Court has not overruled.”  2021 Ga. Lexis 626, at *1; see id. at *9, 19.  “Unless and until the United States Supreme Court overrules Pennsylvania Fire, that federal due process precedent remains binding on this Court and lower federal courts.”  Id. at *23-24.

We don’t think that’s right.  A case that McCall doesn’t cite, Shaffer v. Heitner, 433 U.S. 186 (1977), abandoned “the fiction[] of implied consent to service on the part of a foreign corporation” in favor of “ascertain[ing] what dealings make it just to subject a foreign corporation to local suit.”  Id. at 202-03.  Shaffer then expressly “overruled” all earlier decisions “inconsistent” with current Due Process standards.

It would not be fruitful for us to re-examine the facts of cases decided on the rationales of Pennoyer and [another century-old case] to determine whether jurisdiction might have been sustained under the standard we adopt today.  To the extent that prior decisions are inconsistent with this standard, they are overruled.

433 U.S. at 212 n.39 (emphasis added).  In a subsequent case, the Supreme Court again “cast aside” the registration theory of “consent” to general jurisdiction as “purely fictional”:

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

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

The “tension” that McCall repeatedly acknowledged between Pennsylvania Fire and “the trajectory of recent United States Supreme Court decisions,” 2021 Ga. Lexis 626, at *3, thus puts Pennsylvania Fire squarely within the Shaffer “to the extent” of “inconsisten[cy]” overruling footnote.

The tenor of the McCall decision was often apologetic – seemingly expecting the defendant to take the matter to the Supreme Court and get Pennsylvania Fire specifically overruled by name.  McCall asserted that, because Pennsylvania Fire survives, “we are not required to overrule Klein as a matter of binding federal constitutional law.”  2021 Ga. Lexis 626, at *1.

[A]lthough Klein’s general-jurisdiction holding is in tension with the trajectory of recent United States Supreme Court decisions addressing a state’s authority to exercise general personal jurisdiction over corporations, Klein cannot be overruled on federal constitutional grounds [because of Pennsylvania Fire]

Id. at *3-4.  McCall also conceded that the Georgia Long Arm statute “does not expressly notify out-of-state corporations that obtaining authorization to transact business in this State and maintaining a registered office or registered agent in this State subjects them to general jurisdiction.”  Id. at 23.  (McCall claimed that Klein provides such notice, id., although the word “general” does not even appear in the Klein opinion.)  Finally, McCall “acknowledge[d] that some other courts have held to the contrary.”  Id. at *21.

A lot of courts, actually − as we discussed at the beginning of this post the precedent that rejects general jurisdiction by consent.  As precedential support for the contrary position McCall cited:  Three early post-Bauman federal district court cases decided between 2015 and 2017, the New Mexico case we cited above, misattributed to the New Mexico Supreme Court, and a case that does not exist, “Weinstein v. Kmart Corp., 99 A3d 997, 997 (N.Y. 2012).”  2021 Ga. Lexis 626, at *21.

Umm . . ., New York Court of Appeals cases are not even in the Atlantic Reporter.  After a bit of digging, we found Weinstein v. Kmart Corp., 952 N.Y.S.2d 459 (N.Y.A.D. 2012) – a pre-Bauman intermediate appellate case with all of one substantive paragraph.  As our introductory caselaw discussion indicates, four more recent New York Appellate Division cases, as well as the Second Circuit applying New York law, have rejected general jurisdiction by consent in reliance on United States Supreme Court’s more recent precedent.

In sum, it appears to us that not even the Georgia Supreme Court itself was comfortable with what it did.  It did so because the state’s Long Arm statute, as written, would lead to an absurd (McCall calls it “perverse”) result if the court had followed the last decade of United States Supreme Court personal jurisdiction precedent:

[I]f we were to overrule Klein’s general-jurisdiction holding, these corporations would not be subject to general jurisdiction in this State, either.  This outcome would allow out-of-state corporations to insulate themselves from personal jurisdiction in Georgia simply by obtaining the requisite certificate of authority and registering to do business here, thereby effectively immunizing themselves from suit for any cause whatsoever.

2021 Ga. Lexis 626, at *28-29 (emphasis original).  The McCall court even advised the legislature that it should fix the statute:

[W]e note that the tension between Klein and recent United States Supreme Court precedent remains, and Klein’s general-jurisdiction holding may be undermined if the Supreme Court ever reconsiders and overrules Pennsylvania Fire.  For these reasons, the General Assembly could preemptively obviate that risk by modifying the governing statutes to enable Georgia courts to exercise specific personal jurisdiction over out-of-state corporations . . . [by] tailor[ing] this State’s jurisdictional scheme within constitutional limits.

Id. at *29.

We hope that the defendant in McCall does what that court expected it would do – take the matter to the United States Supreme Court and get the anachronistic Pennsylvania Fire decision overruled by name.  That would save those of us in Pennsylvania the trouble.

Talk to any realtor and they’ll tell you location is the key to any home search.  And normally when we rail against litigation tourists, location is pretty key to us too.  Plaintiffs can’t forum shop for “judicial hellholes” that have no relation to them or to the defendant.  So, you’ve probably heard us say plaintiffs can, and often should, bring their cases in their home states.  But occasionally, even that is not enough for personal jurisdiction.  That was the case in Brandon v. Wright Medical Technologies, Inc., 2021 WL 3134658 (D. Nev. Jul. 23, 2021).

At the time plaintiff filed her lawsuit she lived in Nevada and had for the last four years.  Prior to that she resided in California.  While living in California, plaintiff underwent hip replacement surgery during which defendant’s prosthetic hip device was implanted.  Plaintiff lived in California for another five years after her surgery.  After moving to Nevada, plaintiff had bloodwork done after which she had revision surgery to explant the device.  The explant surgery took place in California.  Id. at *1.    Defendant challenged personal jurisdiction in Nevada.

On general jurisdiction plaintiff could only allege that defendant sold thousands of devices in Nevada.  But nationwide sales are not enough to make a defendant “at home” in a jurisdiction. So, there was no general jurisdiction here.  Id. at *2.

The Ninth Circuit’s test for specific personal jurisdiction puts the burden on plaintiff to demonstrate that defendant purposefully availed itself of the privilege of conducting business in the state and that plaintiff’s claims “arise out of” or “relate to” the defendant’s forum-related activities.  Id. at *3.  If plaintiff meets her burden, then defendant must demonstrate that the exercise of jurisdiction would not be reasonable.  Id.  Plaintiff did not meet her burden on either of the first two parts of the test.

Purposeful availment does not mean simply putting a product into the stream of commerce. Id.  Nor was it sufficient for plaintiff to allege that defendant “transacted business” in Nevada.  To meet her burden, plaintiff needed to show that defendant designed the product for the Nevada market, advertised in Nevada, or had a distributor or sales agent in Nevada.  While the court could reasonably assume that a seller of “sophisticated medical devices” did some of these things, plaintiff did not allege them.  Id.

If that had been plaintiff’s only problem, perhaps it could have been cured through amended pleadings or some limited discovery.  But plaintiff failed prong two of the specific jurisdiction test as well.  Plaintiff could not demonstrate that her claims arose out of or were related to defendant’s contacts with the state, assuming they existed.  “[W]ithout [defendant’s] contacts with Nevada, Plaintiff would have still suffered her alleged injuries because she had surgery in California.”  Id. at *4.  The fact that plaintiff spent two years in Nevada with the device still implanted, while foreseeable, was a “unilateral act of a third party, lacking any direct connection between [defendant] and Nevada.”  Id.

The court distinguish the present case from the facts in Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021).  There, plaintiffs may have bought their cars elsewhere, but their connection to the forum state went beyond simply residing there.  They used their cars in the forum states and suffered their injuries in their forum states.  Here, plaintiff had surgery in California, lived with the allegedly defective implant for five years in California, and returned to California for her explant surgery.  So not only did defendant have systematic contacts with Nevada, but plaintiff’s connection to Nevada regarding her claims is also weak.  “Jurisdiction is lacking without an affiliation between the specific controversy and the forum.”  Id.  Plaintiff does not have that here.  So even if the plaintiff is a state resident, jurisdiction still fails if everything concerning the product occurred in other states.

As we write this, there is great uncertainty in the country.  The intersection of state and federal law is a focus, as is the possibility that one or more of the many recent challenges to how states count votes for the presidential election will end up in the Supreme Court.  The tension is palpable, in the knots in our stomachs, the bile rising in our throats, the thump of our carotids, and our obsessive doom-scrolling of “news” on our phones.  Some find a hot cup of tea soothing.  We cannot offer that to our readers, but we can try to read some tea leaves on a relatively recent Supreme Court argument.  Will it help?  The margin of error in any predictions we could make would be unacceptably wide.  (We know that none of this is actually funny, but awkward humor is a defense mechanism.)

Since the Supreme Court decided Bauman in 2014, we predicted, tracked, and recapped its impact on drug and device litigation, particularly the scourge known as litigation tourism.  The contemporaneous decision by the Court in Walden yielded less attention, but we have often viewed Bauman and Walden as a pair, the former defining the new standard for general personal jurisdiction and the latter defining the standard for specific personal jurisdiction.  As the lawyers for litigation tourists refused to accept what Bauman meant for their business model, one of their main arguments boiled down to “specific personal jurisdiction for the claims of another plaintiff or group of plaintiffs should make a defendant be subject to general personal jurisdiction for other plaintiffs’ claims.”  The Court swatted that down in BMS, citing both Bauman and Walden.  Along the way, and since BMS, we have posted on many permutations of the personal jurisdiction issues that affect our drug and device clients.  You may be shocked to hear, however, that there is litigation out there that does not involve drug or device manufacturers.  Like in Bauman, automobile manufacturers still get sued.  And, like in Bauman, the Supreme Court is considering another appeal related to personal jurisdiction, this time on specific jurisdiction.

What follows is our impressions of the October 7, 2020, oral argument in Ford Motor Co. v. Montana Eight Judicial District Court, which is actually a combined appeal of two state court decisions.  We have not dug into the briefs or the decisions below and will try to focus on the implications for drug and device cases.  We also will not recap all the back-and-forth or comment on how the Court’s composition has changed since October 7.  So, keeping things fairly general, there was a case brought against Ford (and, we assume, non-diverse defendants) in Minnesota state court related to an accident with a Ford vehicle originally sold in North Dakota in the mid-1990s and a case brought against Ford (and, we assume, non-diverse defendants) in Montana state court related to an accident with a Ford vehicle originally in Washington.  Ford is at home in Michigan, designs its vehicles there, and manufactures them in multiple states but not in Minnesota or Montana.  As is often the case in Supreme Court arguments, like in law school classes and exams, the facts were a jumping off point for many hypotheticals.  From what we know, Ford contested both general and specific personal jurisdictions in these cases and plaintiffs argued that specific jurisdiction applied largely because Ford conducted activities in each state and the accidents occurred in the states where the plaintiffs lived and chose to sue.

While the decision that comes down may help to clarify the standards for specific personal jurisdiction, the overall message from the oral argument is that personal jurisdiction is a confusing subject.  Back when general personal jurisdiction was easy to establish (except perhaps for foreign-based defendants), the concepts were relatively simple and it was not often necessary to analyze specific personal jurisdiction.  While we do think some of the confusion rests at the feet of the litigation tourism proponents, we were surprised that the concepts kept blurring the way they did.  It is true that the line of specific jurisdiction cases leading to Walden and expounding on Walden is less robust than on the general jurisdiction side, but the concepts seem separable.  Applying the concepts to the sort of forum shopping in which drug and device plaintiffs engage, the general jurisdiction inquiry relates to whether the defendant can be subject to suit in California or Missouri, for instance, no matter where the plaintiffs are from, the defendant is at home, or the operative actions of their claims took place.  For specific jurisdiction, the decision may be between two states whether plaintiff and the facts of the case have ties, probably with some overlay of the likelihood the case will end up in federal court.  With those predicates, a few things struck us from the argument.

First, maybe it owed to a remote format, but there was more interrupting than we recall from other arguments.  The Justices are expected to interrupt, of course, but it went both ways.

Second, Justice Thomas asked questions of both sides.  Having once gone a decade between posing questions in oral argument, maybe the remote format agrees with him.

Third, there was a surprising amount of discussion of due process almost as to whether there was some doubt that there are constitutional limits on the state exercise of personal jurisdiction.  We think of the concept as so ingrained that it is rarely necessary to go back to the starting point to analyze personal jurisdiction.  Like recounting the supremacy clause when arguing preemption, however, starting at the start can help an explanation sometimes.

Fourth, after a bunch of hypotheticals on how the defendant’s proposed proximate cause standard for the old Helicopteros phrase that specific personal jurisdiction means the claims “arise out of and relate to” the defendant’s contacts in the forum state, which did not seem to advance the ball much, Justice Gorsuch highlighted the framework:

We’ve made a firm distinction between specific and general jurisdiction for many years.  We say specific jurisdiction has to “arise out of.”  Everybody seems to know what that means. Nobody knows what “relates to” means, the other part of the test.

Transcript at 28.  He then spelled out how the long-arm statutes fit into the process, which seemed to focus the inquiry, at least for a while.  There was still conflation of general and specific jurisdictions cases and principles after this.

Fifth, the dueling standards articulated by the parties were something like ships in the night and it was not clear the Court wanted to get aboard either one.  The proximate cause standard, with a sort of “but for” causation back-up, from Ford was intended to apply to all specific personal jurisdiction inquiries and, like proximate cause issues in trial courts, how the justices saw the application to every conceivable permutation did not necessarily match up.  The plaintiffs offered a narrow two-part test for product liability cases (and maybe cases against manufacturers):  “would the defendant be submitting to the coercive power of a state with little interest in the controversy” and would the plaintiff’s claims “really comes within” the defendant’s in-forum contacts.  Plaintiff posited that sales of the same type of product into the forum where plaintiff was injured would create personal jurisdiction over the defendant manufacturer, even if the plaintiff’s product was manufactured, designed, and sold elsewhere.  That sounds quite a bit like a hybrid between the general and specific standards articulated in prior cases and we read BMS as rejecting blurring the lines.

Sixth, the issue of how the defendant’s actions outside the forum state might give rise to specific personal jurisdiction was less developed.  Justice Kavanaugh, in particular, pushed on the issue of purposeful availment by cultivating a market that included the forum.  Interestingly, the plaintiffs conceded that non-targeted advertisement—like just having a site on the internet that offered products for sale wherever—would be insufficient to bestow jurisdiction everywhere.

Seventh, litigation tourism has a bad name and the plaintiffs tried to distance themselves from the BMS plaintiffs.  That included an express denial of “forum shopping.”  By emphasizing that they had sued where their accidents/injuries occurred, these plaintiffs clearly wanted to be seen as different.  We wonder whether whatever the Court does here will include some comments that can be used to oppose litigation tourism.

Last, what does this mean for drug and device manufacturers?  Clearly, the standard Ford articulated would be better than the standard that plaintiffs articulated.  It certainly makes sense that the forum contacts should be alleged to have (proximately) caused the injuries that the plaintiff claims; of course, drug and device plaintiffs tend to allege many cause of action that can involve behavior in multiple places.  Plaintiffs offered the criticism that “it would send injured plaintiffs on an irrelevant scavenger hunt to trace the route of the particular pill or toaster that caused injury, just to try to figure out where to sue.”  Transcript at 36.  It is unclear if a majority will think the burden of such pre-suit diligence is too great to impose.

A number of flaws in the plaintiffs’ proposal were highlighted by questioning from the justices and they would surely plat out in drug and device cases.  Focusing on sales of the product into the forum, for instance, could easily slide down a slope into sales of similar products or of components within the plaintiff’s product that were also included in other products.  Recent device litigation experience emphasizes how often complaints about a component can create a loud noise without any plausible connection to the claimed injury.  Speaking of device litigation, the plaintiffs touted that a number of state attorneys general had supported plaintiffs’ position, which made us think that the AGs want to expand the circumstances under which they can bring cases against out-of-state manufacturers for out-of-state conduct that alleged impacts in-state consumers.  We say “impacts” rather than “harms,” because some state consumer protection statutes, which bestow broad powers on AGs and the threat of treble damages, fines, etc., do not require demonstrable injuries to consumers.  Clearly, the plaintiffs’ proposal, which does not look at causation or injury, would be better for them.  Certainty on these issues for drug and device manufacturers, AGs, and private plaintiffs on the rules governing personal jurisdiction would be appreciated, but may not come as soon as anyone wants.  That dynamic sounds familiar.

 

We often say, as we said last week, that this blog is not designed to do plaintiffs’ work for them. Thus, we are a heckuva lot more likely to trumpet pro-defense rulings than wrong ones. Still, it is important to know the problem areas out there, and today’s case displays one of them. It relates to personal jurisdiction, where the momentum has very much been in defendants’ favor since the SCOTUS decisions in the Bauman and BMS cases.

In Collett v. Olympus Medical Systems Corp., 2020 U.S. Dist. LEXIS 10170 (M.D. Ga. Jan. 22, 2020), the court held that it could exercise personal jurisdiction over a Japanese parent company that did not actually do anything in Georgia. The Japanese parent company designed and manufactured colonoscopes. It then supplied the colonoscopes to a U.S. subsidiary that distributed them throughout the United States. A plaintiff in Georgia claimed that she had contracted an immunodeficiency virus from a defective colonoscope. She sued both the Japanese parent company and the U.S. distributing company.

The Japanese parent company challenged personal jurisdiction, furnishing an affidavit that it was not responsible for and did not control the marketing, advertising, promotion, sale, or distribution of the colonoscope in the United States, did not transact any business in Georgia, did not derive any direct revenues from Georgia, etcetera, etcetera. That “etcetera, etcetera” sounds like the King’s throwaway phrase in “The King and I,” but take it as shorthand for saying that the Japanese company had nothing to do with Georgia.

The court began its jurisdictional analysis by deciding that the Georgia long-arm statute reached the Japanese parent company because its conduct outside Georgia – the design and manufacture of the colonoscope – caused tortious injury inside Georgia. Moreover, the Japanese company expected that its products would be distributed everywhere in the U.S. – it certainly did not exclude Georgia. Further, at least some of its revenues indirectly came from Georgia.

But what about due process? Under the Bauman case, Georgia clearly could not exercise general jurisdiction over the Japanese company. All the conceptual action in the case concerned whether specific jurisdiction existed. Looking to some of the older specific jurisdiction cases – Burger King, Keegan, Helicopteros, World-Wide Volkswagen – the Collett court reasoned that a forum state does not offend due process by asserting “personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State and those products subsequently injure forum consumers.”

We are not in love with the stream of commerce theory. It too quickly veers into the boundless. It also threatens to make a mockery of recent SCOTUS personal jurisdiction teaching. Speaking of recent SCOTUS personal jurisdiction teaching, the Collett court dispensed with BMS on the grounds that BMS merely excluded personal jurisdiction when the plaintiffs were not residents of the forum state. The plaintiff in Collett, by contrast, was a Georgia resident. Okay, but we think there is a little more to BMS than that. How much more? Lots more. For example, as we recently blogged, BMS means that a defendant cannot be dragged into court based solely on its relationship with a third-party.

The SCOTUS case that really posed a problem for exercising personal jurisdiction over the parent company in Collett is the 2011 J. McIntyre Machinery case. In J. McIntyre, the Supreme Court plurality opinion applied a “stream of commerce plus” test, reversing the New Jersey Supreme Court’s decision that a New Jersey Court could exercise personal jurisdiction over a British manufacturer that sold a single machine to a New Jersey customer through an American distributor but had no other contacts with New Jersey. That “plus” is an additional requirement along the lines of purposeful availment. The Collett emphasized that the SCOTUS plurality was not a majority, and therefore declined to add that “plus” to the stream of commerce test. That is a surprising, and perhaps unnecessary way to go. One could see the Collett court emphasizing the singularity of the transaction in J. McIntyre, and going off on a Hegelian riff on how quantitative differences at a certain point become qualitative. (Not that we would advocate citations to anything by Hegel, who is more opaque than the tax code.)

J. McIntyre is a real barrier to Collett’s outcome because SCOTUS said that a foreign company that markets a product to the United States generally but does not purposefully direct its product to an individual state is not subject to specific jurisdiction in the state where its product causes injury. J.McIntyre and an earlier personal jurisdiction case, Asahi, rejected the view that a foreign company is subject to jurisdiction so long as it could reasonably foresee that the distribution of its products through a nationwide system might lead to those products being sold in any of the 50 states. Not to put too fine a point on it, Collett appears to be on the wrong side of SCOTUS doctrine. At the very least, Collett’s side-step of J.McIntyre via the plurality/majority distinction does not do much to reinforce the strength of the Collett decision.

The Collett court was plainly troubled by the notion that a “manufacturer can escape legal responsibility for any defect in its product because it has decided that its product will be sold generally everywhere but nowhere in particular.” We are not so troubled. This was not an instance of a wrong without a remedy (a dumb concept anyway – even an inattentive student of life knows that wrongs without remedy abound). After all, the plaintiff was able to sue the U.S. distributor. We did not see in the Collett case any allegation of an alter ego relationship between the parent and subsidiary, or that the subsidiary was some sort of insolvent shell or conduit. In Collett, it is as if doctrine was sacrificed out of fear of a nonproblem.

The Collett case came out last January. Around that same time, we blogged about how SCOTUS granted certiorari for a pair of automobile cases that would permit elaboration of the vitality – or non-vitality – of the stream of commerce test for personal jurisdiction. Then came Covid-19 and arguments for those cases were put off until next term. You can read the supremely well-reasoned amicus brief here.

Today the Supreme Court agreed to take another shot at “stream of commerce” personal jurisdiction in two automotive cases.  Here are the case pages at SCOTUSBlog:  Ford Motor Co. v. Bandemer, No. 19-369, and Ford Motor Co. v. Montana Eighth Judicial District Court, No. 19-368.  The decisions being appealed are Bandemer v. Ford Motor Co., 931 N.W.2d 744 (Minn. 2019), and Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 443 P.3d 407 (Mont. 2019).

Neither case involves the kind of litigation tourism that we frequently discuss on this Blog.  Rather, both cases involve variants of a set of facts that is relatively common in cases involving motor vehicles:  The plaintiff was injured while using a vehicle that was not purchased in the state where the accident occurred.  Oftentimes the vehicle has changed hands several times since it was initially sold in some other state, or else the plaintiff was responsible for bringing it into the state.  Nor was the vehicle in question manufactured, designed, or repaired by the defendant in the state where the injury occurred and suit was brought.  There is no basis for general jurisdiction because the defendant vehicle manufacturer was neither incorporated nor had a principal place of business in the state.  The defendant had plenty of branded dealerships in the state, but those dealerships had nothing to do with the car in which the plaintiff was injured.

Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), was pretty clear that, for there to be specific personal jurisdiction, “the suit must arise out of or relate to the defendant’s contacts with the forum.”  Id. at 1780.  “[W]hat is missing” in BMS was “a connection between the forum and the specific claims at issue.”  Id. at 1781.  Likewise, in Walden v. Fiore, 571 U.S. 277 (2014), the Court held that “the defendant’s suit-related conduct must create a substantial connection with the forum State.”  Id. at 284.

It’s hard to see how, given these holdings, that such plaintiffs have a jurisdictional basis for the suit, and we discussed the probable demise of stream of commerce jurisdiction here, shortly after BMS.  However, we are now talking about plaintiffs who are suing in their home states where their injuries occurred.  That makes them a lot more sympathetic than our clients’ mass tort litigation tourist opponents, all of whom have readily available (but not as pro-plaintiff) alternative fora.  Will personal jurisdiction really require auto accident plaintiffs to sue manufacturers in the manufacturers’ “home” states, unless those plaintiffs bought their cars new in the states where they live?  Courts have split all over the place on this issue, and our post-BMS cheat sheet includes defense-side wins.

We would have preferred that the Court clarify just what the specific personal jurisdiction “arising from”/”relating to” test means in a nationwide class action, but those cases move slower than individual auto accident cases like these two – so here we are.  Whatever the Supreme Court holds in these cases about the need for a causal connection between the defendant’s in-state contacts and the plaintiff’s claimed injuries will also determine the extent to which litigation tourists will be able to sue our clients in places like Philadelphia or St. Louis (to name two).  We’ve stated our preferred test in these situations – based on the BMS holding about “loose and spurious” forms of ersatz general jurisdiction – here.  We’ll see what happens.

Bexis recently filed a personal jurisdiction amicus brief in Pennsylvania – ground zero in the battle over general jurisdiction by “consent” due to a foreign corporation’s registration to do business in the state (technically, commonwealth).  As is readily apparent from our 50-state survey on general jurisdiction by consent, most states reject such an expansive reading of corporate domestication statutes.  But those states that don’t rely on a hoary United States Supreme Court decision, Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), from deep within the old “territorial” age of personal jurisdiction, an age that ended over 70 year ago when International Shoe Co. v. Washington, 326 U.S. 310 (1945), supplanted Pennoyer v. Neff, 95 U.S. 714 (1877).

In Pennsylvania, where Bexis filed, that reliance has a Tinker to Evers to Chance flavor to it.  Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018), followed Bors v. Johnson & Johnson, 208 F. Supp.3d 648 (E.D. Pa. 2016), which we blogged about here.  Bors, in turn, refused to “ignore” (208 F. Supp.3d at 652) the pre-Bauman Third Circuit decision in Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991).  Bane had this to say about general jurisdiction by consent back in 1991:

[Defendant’s] application for a certificate of authority can be viewed as its consent to be sued in Pennsylvania under section 5301(a)(2)(ii), which explicitly lists “consent” as a basis for assertion of jurisdiction over corporations. Consent is a traditional basis for assertion of jurisdiction long upheld as constitutional.  See Hess v. Pawloski, 274 U.S. 352, 356-57 (1927).

Id. at 641 (other citation omitted).  Those three sentences are the entirety of the discussion of “consent” in Bane.  Right now, you could say those three sentences are the bane of our existence.

Hess, finally, relied on Pennsylvania Fire:

The mere transaction of business in a state by nonresident natural persons does not imply consent to be bound by the process of its courts.  The power of a state to exclude foreign corporations, although not absolute, but qualified, is the ground on which such an implication is supported as to them.  Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U. S. 93 [(1917)].

274 U.S. at 355 (other citation omitted).  See also Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1198 (8th Cir. 1990) (also relying on Hess for the proposition “[t]he doing of various acts within the State . . . was equated, by statute, with consent or submission to the jurisdiction, even by nonresidents”).

Other courts in the post-Bauman minority rely on Pennsylvania Fire much more directly.  For example, take a look at the only other post-Bauman appellate decision allowing general jurisdiction by consent:

In this appeal, we consider whether [defendant] consented to general personal jurisdiction in New Mexico courts when it registered to do business here.  To answer this question, we must determine whether the United States Supreme Court’s decision in Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917) . . . remain binding precedent in light of the evolution of general jurisdiction jurisprudence. . . .  We recognize the tension between the two lines of cases.  Nevertheless, because we conclude that . . . Pennsylvania Fire . . . [is] are still binding, we conclude that [defendant] consented to general jurisdiction in New Mexico.

Rodriguez v. Ford Motor Co., ___ P.3d ___, 2018 WL 6716038, at *1 (N.M. App. Dec. 20, 2018).

The rigor of briefing an issue – rather than writing blogposts – required Bexis to go back and actually read a number of the foundational Supreme Court personal jurisdiction decisions for the first time, probably, since law school.  It was a useful exercise, one that led him to conclude that, not only is Pennsylvania Fire no longer good law in light of Bauman, as so many recent decisions in our 50-state survey have concluded, but that Pennsylvania Fire has already been expressly overruled – more than 40 years ago.  The United States Supreme Court just didn’t overrule it by name.

We start with International Shoe Co. v. Washington, 326 U.S. 310 (1945), which discussed the demise of the “fictional” concept of corporate “presence” in a state under the new non-territorial version of Due Process.

Since the corporate personality is a fiction . . . it is clear that unlike an individual its “presence” without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it.  To say that the corporation is so far “present” there as to satisfy due process requirements . . . is to beg the question to be decided.  For the terms “present” or “presence” are used merely to symbolize those activities of the corporation’s agent within the state which courts will deem to be sufficient to satisfy the demands of due process.  Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there. . . .

Id. at 316-17 (citations omitted) (emphasis added).  Indeed, the concept of “consent” was no longer needed for the exercise of what becomes known as “general” personal jurisdiction.

“Presence” in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given.

Id. at 317 (citation omitted) (emphasis added).  Likewise, “consent” is not essential to what becomes known as “specific jurisdiction.  As to “the commission of some single or occasional acts of the corporate agent in a state”:

True, some of the decisions holding the corporation amenable to suit have been supported by resort to the legal fiction that it has given its consent to service and suit. . . .  But more realistically it may be said that those authorized acts were of such a nature as to justify the fiction. . . .  Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.

Id. at 318-19 (citations omitted) (emphasis added).  “Consent” in the context of corporate activity, was thus repeatedly denounced in International Shoe as a “fiction,” while what was henceforth determinative was the “quality and nature of the [corporation’s] activity.”

The Court returned to the “fiction” of corporate “consent” in Shaffer v. Heitner, 433 U.S. 186 (1977), rejecting “statutory presence” of intangible property (corporate securities) as a basis for personal jurisdiction.  The Court expressly abandoned “the fiction[] of implied consent to service on the part of a foreign corporation” in favor of “ascertain[ing] what dealings make it just to subject a foreign corporation to local suit.”  Id. at 202-03

Shaffer also observed that Pennoyer had “approved the practice of considering a foreign corporation doing business in a State to have consented to being sued in that State.”  433 U.S. at 201 (citing 95 U.S. at 735-36).  However, this “consent” theory was difficult to administer in practice:

[B]oth the fictions of implied consent to service on the part of a foreign corporation and of corporate presence required a finding that the corporation was “doing business” in the forum State.  Defining the criteria for making that finding and deciding whether they were met absorbed much judicial energy.

Id. at 202 (citations omitted).

International Shoe drastically changed all that:

Thus, the inquiry into the State’s jurisdiction over a foreign corporation appropriately focused not on whether the corporation was “present” but on whether there have been “such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.”  Mechanical or quantitative evaluations of the defendant’s activities in the forum could not resolve the question of reasonableness.

Id. at 203-04 (quoting International Shoe, 326 U.S. at 317).

Now we get to the good part.  Shaffer went on to bring the jurisdictional rules for in rem actions into line with International Shoe’s “dramatic change[s],” id. at 205, to in personam personal jurisdiction.  Id. at 205-10.  The state statute before the court had “the express purpose . . . to compel the defendant to enter a personal appearance.”  As such, it was unconstitutional:

In such cases, if a direct assertion of personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect assertion of that jurisdiction should be equally impermissible.  The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to adjudicate claims over which the State would not have jurisdiction if International Shoe applied. . . .

Id. at 209.

With that, the Court in Shaffer held that a state statute that sought to create a jurisdictional basis “to adjudicate claims over which the state would not have jurisdiction” under International Shoe Due Process was unconstitutional.  That’s exactly what the “general jurisdiction” language in the Pennsylvania Long Arm Statute does.  Critically, Shaffer reinforced its point by expressly overruling all contrary Pennoyer-era precedent:

We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.39

39 It would not be fruitful for us to re-examine the facts of cases decided on the rationale[] of Pennoyer . . . to determine whether jurisdiction might have been sustained under the standard we adopt today.  To the extent that prior decisions are inconsistent with this standard, they are overruled.

Id. at 212 & n. 39 (emphasis added).  That’s the 40+ years ago.  And we think “all” does mean all.

Given what the Court had already held in Shaffer about:  (1) the “fiction” of corporate “consent”; (2) its origins in Pennoyer; (3) that state statutes couldn’t gin up jurisdiction that doesn’t exist under International Shoe; and (4) that “all assertions” of personal jurisdiction must accord with International Shoe, there should be no doubt that Pennsylvania Fire (and its lesser-known adjunct Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165 (1939)), is among the prior “inconsistent” decisions that Shaffer expressly overruled.

We could end this post here, but we didn’t stop reading there, either.  So we find the overruling of Pennsylvania Fire is further bolstered by what the Supreme Court has done since.  We start with the admonition in Bauman itself that Pennoyer-era cases “should not attract heavy reliance today.”  Daimler AG v. Bauman, 571 U.S. 117, 138 n.18 (2014).  But the Supreme Court has said considerably more related specifically to general jurisdiction by consent.  That includes Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 445 (1952), which has since became Bauman’s “exceptional” case.  Perkins also rejected ipso facto personal jurisdiction based on a corporation’s “secur[ing] a license and [] designat[ing] a statutory agent upon whom process may be served” – those actions only “provide[] a helpful but not a conclusive test” for specific jurisdiction.  Id. at 445.  Ditto for McGee v. International Life Insurance Co., 355 U.S. 220 (1957):

[W]here this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations.  In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations.

Id. at 222 (citations and quotation marks omitted) (emphasis added).

The Court’s most comprehensive, relatively recent, analysis of consent jurisdiction took place in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) (“ICI”).  Each and every one of the “variety of legal arrangements” recognized as “consent” in ICI were grounds for case specific – not general − jurisdiction:

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

Id. at 704-06 (citations and quotation marks omitted).  These are all actions that take place on a one-off basis in particular cases.

The only item on the ICI list that could possibly encompass general jurisdiction by consent – “constructive consent” due to “voluntary use of certain state procedures – really doesn’t.  The ICI Court gave two examples of what it was describing, both of which were likewise specific to individual cases.  See Adam v. Saenger, 303 U.S. 59, 67-68 (1938) (non-resident plaintiff consents to counterclaims); Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 30 (1917) (“filing a plea in abatement, or taking the question to a higher court”).  Those are the kind of things that parties decide to do (or not) on a case-by-case basis.  Thus, while there is reason to believe that Adams and Chicago Life are not victims of Shaffer’s global overruling of Pennoyer-era precedent, conversely, there is no basis for saving Pennsylvania Fire.  In accordance with Shaffer, ICI did not even recognize corporate registration as a modern form of “consent.”

Then, in Burnham v. Superior Court, 495 U.S. 604 (1990), similarly to Shaffer, the Court again expressly “cast aside” “consent” arguments for general jurisdiction as “purely fictional”:

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

Id. at 617-18 (citations omitted) (plurality opinion).

Finally, the fate of general jurisdiction by consent is also discussed in the “stream of commerce” case, J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011).  The plurality listed “consent” as one of four possible bases of jurisdiction.  Id. at 880-81.  Absent consent, “those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts.”  Id. at 881.  “Purposeful availment” was a basis for the “more limited form,” specific jurisdiction, only.  Id.  Interestingly, in Nicastro, the more pro-jurisdiction dissenters were even less kind to notions of “consent”:

Finally, in International Shoe itself, and decisions thereafter, the Court has made plain that legal fictions, notably “presence” and “implied consent,” should be discarded, for they conceal the actual bases on which jurisdiction rests. “[T]he relationship among the defendant, the forum, and the litigation” determines whether due process permits the exercise of personal jurisdiction . . ., and “fictions of implied consent” or “corporate presence” do not advance the proper inquiry. . . .  [C]onsent [a]s the animating concept draws no support from controlling decisions of this Court. Quite the contrary, the Court has explained, a forum can exercise jurisdiction when its contacts with the controversy are sufficient; invocation of a fictitious consent, the Court has repeatedly said, is unnecessary and unhelpful.

Id. at 900-01 (citations omitted) (Ginsburg +2, dissenting). Thus, even the justices who were inclined to interpret personal jurisdiction more expansively in Nicastro weren’t willing to endorse the “consent” notions that animated Pennsylvania Fire.

Based on the above analysis, we think it is entirely proper, not only for defendants in general-jurisdiction-by-consent cases to argue that Pennsylvania Fire should not be followed because it is obsolete and inherently inconsistent with Bauman, but to go further and argue that Pennsylvania Fire – and thus the entire concept of general jurisdiction by consent – was already expressly overruled on its jurisdictional holding in Shaffer.  Overruling Pennsylvania Fire 40+ years ago is entirely consistent with how the United States Supreme Court has since treated that decision and the “consent” concept.  First, International Shoe and Shaffer thoroughly trashed the notion of “consent” as a basis for general jurisdiction.  Second, Pennsylvania Fire has not been cited for any jurisdictional proposition whatever since Shaffer (as opposed to its holding about the Full Faith and Credit clause, 243 U.S. at 96-97, which appears to remain valid).  Third, every Supreme Court case since Shaffer has treated “consent” jurisdiction generally as a factor for resolving specific jurisdiction, not general jurisdiction.

Finally, we’d also recommend that our readers share this post with anyone in their firms who is engaged in asbestos litigation.  While defeating general jurisdiction by consent is important to our drug/device clients, it is absolutely critical in asbestos litigation.  Asbestos plaintiffs typically sue dozens of corporate defendants, so that litigation requires a general, not specific, jurisdiction theory to continue aggregating cases in plaintiff-friendly places where plaintiffs don’t reside.  Defeating general jurisdiction by consent in asbestos cases will force asbestos plaintiffs to stay home, where they can assert specific jurisdiction over most (if not all) of their defendants.  Otherwise, asbestos litigation tourists should stand to lose 95% or so of the defendants they sue to personal jurisdiction defenses.

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

Because Bexis has filed several amicus briefs on this subject in Pennsylvania, in connection with which he had occasion to update the law in this field.  Until late 2021, unlike almost every other state in the union following Daimler AG v. Bauman, 571 U.S. 117 (2014) (“Bauman”), Pennsylvania swam against the current on general jurisdiction by consent.  Since everybody else is marching in the other direction, we converted what had started as a detailed critique of Pennsylvania developments into an updated version of our 50-state survey.  We also wish to recognize, again, Reed Smith attorney Kevin Hara, without whose efforts the original 50-state survey could not have been created.

We start with a recent significant development.  The Supreme Court will now decide this issue.  In April, 2022, the Court granted the plaintiff’s certiorari petition from Mallory v. Norfolk Southern Railway Co., 266 A.3d 542 (Pa. 2021) (see Pennsylvania, below).  See Mallory v. Norfolk Southern Railway Co., No. 21-1168, 2022 WL 1205835 (U.S. April 25, 2022).  The Mallory page at SCOTUSBlog indicates that, after certiorari was granted, plaintiff promptly sought an extension of time, so briefing is unlikely to be until the fall.

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

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

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

Since International Shoe, the Supreme Court has not viewed “consent” the way it did in Pa. Fire.  Instead, it dispensed with “the fiction of deemed implied consent to service on the part of a foreign corporation” in favor of “ascertain[ing] what dealings make it just to subject a foreign corporation to local suit.”  Shaffer, 433 U.S. at 202-03.  Broad notions of “implied” consent are now considered “purely fictional”:

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

Burnham v. Superior Court, 495 U.S. 604, 617-18 (1990) (citations omitted).  Thus, in Shaffer, the Supreme Court expressly “overruled” all earlier decisions “inconsistent” with International Shoe Due Process standards.  433 U.S. at 212 n.39 (emphasis added).  We think that includes Pa. Fire,  but the Supreme Court will tell us if we are right in Mallory.

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

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

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

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

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

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

BNSF Railway. v. Tyrrell, 137 S. Ct. 1549, 1554 (2017); see Bauman, 571 U.S. at 127 (foreign corporate “affiliations with the State [must be] so ‘continuous and systematic’ as to render them essentially at home in the forum State”) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)).  If states could bypass Due Process simply by mandating “consent” by statute, then all of the Court’s recent Due Process precedent effectively becomes moot in any state that does so.

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

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

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

All 50 states and the District of Columbia have corporate registration laws.  E.g., T. Monestier, “Registration Statutes, General Jurisdiction, & the Fallacy of Consent,” 36 Cardozo L. Rev. 1343, 1363-64 n.109 (2015) (collecting all 50 states’ registration statutes).  Thus, if a registration statute could create general jurisdiction – based on “consent” or anything else – in derogation of constitutional standards, interstate corporations could be subjected to general jurisdiction everywhere they conducted business, even if that business is not “continuous and substantial,” and even if they actually conducted no business at all.  No dice.  In Bauman, the Supreme Court specifically rejected, as “unacceptably grasping,” legal theories that “approve the exercise of general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of business.”  571 U.S. at 138 (quotation marks omitted).  “[O]nly a limited set of affiliations with a forum will render a defendant amenable to [general jurisdiction] there,” id. at 137, and registration to do business is not one of those.

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

A large and growing body of law exists on the concept of general jurisdiction by consent.  We have a constantly updated cheat sheet collecting the favorable cases here.  Even before Bauman was decided, 28 states already had precedent holding that general personal jurisdiction could not be predicated solely on compliance with the state’s corporate domestication statute.  The highest courts in Alabama, California, Colorado, Delaware, Illinois, Maryland, Michigan, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, Pennsylvania, Ohio, Oregon, South Carolina, and Wisconsin have rejected such arguments, with twelve of those occurring post-Bauman.  Thus, in the four years since the Supreme Court decided Bauman, twelve (out of 13) state high courts that have addressed the issue have concluded that compliance with corporate registration statutes cannot, without (much) more, satisfy the strict standard for general personal jurisdiction, whether or not called “consent.”

We count only four states (Georgia, Iowa, Kansas, and Minnesota), along with Puerto Rico, that persist in subscribing to the “fiction” of corporate registration as a form of “consent.”  Some of these states are in circuits that issued wayward general jurisdiction by consent decisions over two decades before Bauman.  See Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991) (applying Pennsylvania law); Knowlton v. Allied Van Lines, 900 F.2d 1196 (8th Cir. 1990) (applying Minnesota law).  The Georgia decision was due to a definitional error in that state’s Long Arm statute.  The outcome is unclear in two other states (Kentucky, and Wyoming).  Overall, the vast majority of states – 42 (plus DC and VI) – have precedent rejecting the proposition that a nonresident defendant may be subject to general jurisdiction simply by registering to conduct business.

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

Alabama

The relevant Alabama statute, Ala. Code §10A-1-5.31, does not mention personal jurisdiction at all.  The Alabama Supreme Court put personal jurisdiction by consent to rest in Facebook, Inc. v. K.G.S., 294 So.3d 122 (Ala. 2019),

[Plaintiff] argues that [defendant] is subject to general jurisdiction in Alabama because it is registered to do business in Alabama. However, in both [Bauman] and BNSF,  the Supreme Court made it abundantly clear that any precedent that supported the notion that the exercise of general jurisdiction could be based on a simple assertion that an out-of-state corporation does business in the forum state has become obsolete.

Id. at 133.  Thus “the Alabama Supreme Court has already made clear that it no longer believes in Plaintiffs consent theory.”  Tyler v. Ford Motor Co., 2021 WL 5361069, at *8 (M.D. Ala. Nov. 17, 2021).  In Facebook that court “recently rejected the argument that registration equates to [valid] consent.”  Id. at *9.

a state cannot require waiver of a constitutional right as a prerequisite to doing business. This doctrine of unconstitutional conditions extends to rights secured by the Due Process Clause, including the right to be haled into only those jurisdictions with which one has minimum contacts.  Pennsylvania Fire was overruled by International Shoe and Shaffer, along with the entire system of territorial thinking represented by Pennoyer. Today, it is clear that registration alone is not a valid method of establishing minimum contacts and that a state cannot require consent to the general jurisdiction of the state as a prerequisite to registration.

Id. at *10 (citations omitted).

In Beasley v. Providence Hospital, 2018 WL 2994380 (S.D. Ala. June 13, 2018), the court equally decisively rejected general jurisdiction by consent before Facebook:

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

Id. at *3 (citations and quotation marks omitted).  Other post-Bauman Alabama cases likewise hold that being “registered to do business in Alabama . . . alone is insufficient for the court to exercise general jurisdiction.”  Roper v. CNU of Alabama, 2017 WL 3334876, at *2 (N.D. Ala. Aug. 4, 2017).  See Whatley v. Ohio National Life Insurance Co., 2019 WL 6173500, at *4 (M.D. Ala. Nov. 19, 2019) (“that the Defendants appointed agents for service of process and registered to do business in Alabama . . . also fall[s] short”); Smith v. Avon Products, Inc., 2019 WL 921461, at *5-6 (N.D. Ala. Feb. 25, 2019) (holding jurisdiction-by-consent based solely on registration to do business insufficient to establish specific jurisdiction).  These decisions are more persuasive than the pre-Bauman decision in Johnston v. Foster-Wheeler Constructors, Inc., stating that corporate registration “suggests that Defendant has continuous and systematic contacts with Alabama.”  158 F.R.D. 496, 501-02 (M.D. Ala. 1994).  Johnston ultimately decided jurisdiction on a minimum contacts analysis involving more than registration.  Id.  The precedent in Alabama has moved in the right direction.

Alaska

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

Arizona

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

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

*          *          *          *

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

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

Lemaire distinguished a prior decision, Bohreer v. Erie Insurance Exchange, 165 P.3d 186, 187-92 (Ariz. App. 2007), as based on an insurance statute.  395 P.3d at 1118.  Bohreer had “agree[d]” with now overruled (see Delaware) Sternberg decision.  165 P.3d at 192.  Arizona federal and state courts follow LemaireKastigar v. Mercedes-Benz USA LLC, 2022 U.S. Dist. Lexis 69714, at *8 (D. Ariz. April 14, 2022) (registration to do business “insufficient” to sustain general jurisdiction); Vantage Mobility Int’l LLC v. Kersey Mobility LLC, 2020 WL 1432835, at *2 (D. Ariz. March 24, 2020) (“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”); Humphries v. Allstate Insurance Co., 2018 WL 1510441, at *3 (D. Ariz. March 27, 2018) (same as Vantage Mobility); 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); Martin v. Grech Motors, Inc.2020 WL 2091003, at *2, slip op., at 3 (Ariz. Super. April 28, 2020) (“Merely registering a foreign corporation in Arizona and appointing agents for service of process is not sufficient to establish general jurisdiction.”).  Cf. EZScreenPrint LLC v. SmallDog Prints LLC, 2018 WL 3729745 (D. Ariz. Aug. 6, 2018) (registration of domain name with Arizona company does not create general jurisdiction).  Arizona is now solidly behind the general consensus rejecting general jurisdiction by consent.

Arkansas

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

California

The California Supreme Court’s now-reversed BMS decision also shot down, under Bauman, corporate registration as a basis for general personal jurisdiction (not at issue in the United States Supreme Court in BMS).  “[A] corporation’s appointment of an agent for service of process, when required by state law, cannot compel its surrender to general jurisdiction for disputes unrelated to its California transactions.”  Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 884 (Cal. 2016), reversed on other grounds, 137 S. Ct. 1773 (2017).  See also Thomson v. Anderson, 6 Cal. Rptr.3d 262, 269 (Cal. App. 2003) (rejecting corporate registration as a separate basis for personal jurisdiction); DVI, Inc. v. Superior Court, 128 Cal. Rptr.2d 683, 694 (Cal. App. 2002) (“designation of an agent for service of process and qualification to do business in California alone are insufficient to permit general jurisdiction”); Gray Line Tours v. Reynolds Electrical & Engineering Co., 238 Cal. Rptr. 419, 421 (Cal. App. 1987) (“it cannot be said [defendant] consented to the exercise of jurisdiction for all purposes when it appointed” an agent for service of process); Am Trust v. UBS AG, 681 F. Appx. 587, 589 (9th Cir. 2017) (“consent to general personal jurisdiction” not created by registering to do business) (applying California law); Green v. First Tennessee Bank National Ass’n, 2021 WL 4846952, at *3 (N.D. Cal. Oct. 18, 2021) (“designation of an agent for service of process and qualification to do business in California do not require corporations to consent to general jurisdiction and alone, are insufficient to permit general jurisdiction”) (citation and quotation marks omitted); Midcap Funding XVIII Trust v. CSC Logic, Inc., 2021 WL 949601, at *5 (C.D. Cal. March 12, 2021) (“designation of an agent for service of process and qualification to do business in California . . . alone, are insufficient to permit general jurisdiction”); Ketayi v. Health Enrollment Group, 2021 WL 347687, at *5 (S.D. Cal. Feb. 2, 2021) (“being registered to do business in California, or maintaining an office in California does not give Defendants . . . sufficient continuous and systematic contacts with the state to support the exercise of general personal jurisdiction”); Bailey v. Wyndham Vacation Ownership, Inc., 2019 WL 6836772 (N. D. Cal. Dec. 16, 2019) (“Nor does [defendant’s] appointment of an in-state agent for service of process constitute consent to general jurisdiction in California courts.”); Loomis v. Slendertone Distribution, Inc., 2019 WL 5790136, at *1 (S.D. Cal. Nov. 4, 2019) (“a designated service for process agent and registration with the California Secretary of State . . . do not suggest that Defendant is essentially ‘at home’ in California”); Wagner v. Terumo Medical Corp., 2018 WL 6075951, at *5 (S.D. Cal. Nov. 21, 2018) (“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”); In re Nexus 6P Products Liability Litigation, 2018 WL 827958, at *3 (N.D. Cal. Feb. 12, 2018) (“under California law, it is not enough that [defendant] maintains a California agent for service of process and has registered to do business in California”); Travelers Property Casualty Co. v. Hume Lake Christian Camps, Inc., 2018 WL 280025, at *4-5 (S.D. Cal. Jan. 3, 2018) (no general jurisdiction despite registration to do business in California); L.A. Gem & Jewelry Design, Inc. v. Ecommerce Innovations, LLC, 2017 WL 1535084, at *5 (C.D. Cal. April 27, 2017) (“Designation of an agent for service of process in California, alone, is not enough to show general jurisdiction.”); Lindora, LLC v. Isagenix International, LLC, 198 F. Supp.3d 1127, 1136-37 (S.D. Cal. 2016) (no general personal jurisdiction despite defendant registered to do business in California); American Insurance Co. v. R&Q Reinsurance Co., 2016 WL 5930589, at *2 (N.D. Cal. Oct. 12, 2016) (same); Angelini Metal Works Co. v. Hubbard Iron Doors, Inc., 2016 WL 6304476, at *3 (C.D. Cal. Jan. 5, 2016) (same); Freeney v. Bank of America Corp., 2015 WL 12535021, at *41 (C.D. Cal. Nov. 19, 2015) (rejecting general jurisdiction based on registration or appointment of agent for service of process); Henderson v. United Student Aid Funds, Inc., 2015 WL 12658485, at *4 (S.D. Cal. April 8, 2015) (no general personal jurisdiction despite defendant registered to do business in California); Overhill Farms Inc. v. West Liberty Foods LLC, 2014 WL 4180920, at *4 (C.D. Cal. Aug. 21, 2014) (“while it is relevant that Defendant may be registered to do business and has designated an agent for service of process in California, these acts alone are insufficient to support a finding of general jurisdiction”).  There is no doubt that California rejects general jurisdiction by consent.

Colorado

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

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

Connecticut

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

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

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

If mere registration and the accompanying appointment of an in state agent – without an express consent to general jurisdiction – nonetheless sufficed to confer general jurisdiction by implicit consent, every corporation would be subject to general jurisdiction in every state in which it registered, and [Bauman]’s ruling would be robbed of meaning by a back‐door thief.

Id. at 640. A Connecticut trial court followed Brown in Perdomo v. Western Express, Inc., 2021 WL 3141972, at *3-4 (Conn. Super. June 17, 2021).  In light of Brown, it would be unusual for Connecticut state courts to follow a contrary path.

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

In light of Brown, we would be surprised for Connecticut state courts to follow a contrary path.

Delaware

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

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

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

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

Id. at 143 (footnotes omitted).

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

District of Columbia

The current District of Columbia statute provides that “[t]he designation or maintenance in the District of a registered agent shall not by itself create the basis for personal jurisdiction.”  D.C. Code §29-104.02 (2013).  See Annapolis Citizens Class Overcharged for Water-Sewer, by Loudon Operations, LLC v. Stantec, Inc., 2021 WL 75766, at *5, 7 (D.D.C. Jan. 8, 2021) (allegations of in-District licensing and “registered agents” “are clearly insufficient to establish general jurisdiction”); Ashhab-Jones v. Cherokee Nation Strategic Programs, LLC, 2020 WL 6262090, at *4 (D.D.C. Oct. 23, 2020) (“That [defendant] is registered to do business in the District . . . is insufficient to confer general jurisdiction under District of Columbia law.”); Freedman v. Suntrust Banks, Inc., 139 F. Supp.3d 271, 279-80 (D.D.C. 2015) (general jurisdiction based on registration and agent for service of process “explicitly foreclose[d]” by Bauman because it would subject defendant to jurisdiction in multiple fora; prior precedent no longer valid); Kuennen v. Stryker Corp., 2013 WL 5873277, at *4 (W.D. Va. Oct. 30, 2013) (a defendant’s “business certificate and appointed agent . . . are not independent support for general jurisdiction − the principles of due process require a firmer foundation than mere compliance with state domestication statutes”) (applying District of Columbia law).  Under a prior statute, In re FTC Corp. Patterns Report Litigation, 432 F. Supp. 274, 286 (D.D.C. 1977), allowed mere service on a registered agent to invoke general jurisdiction, although modern terminology was not used.  Under the current D.C. statute, that can’t happen, and the District rejects general jurisdiction by consent.

Florida

Since Bauman, Florida district courts of appeals have twice rejected general jurisdiction by consent.  Woodruff-Sawyer & Co. v. Ghilotti, 255 So.3d 423 (Fla. App. 2018), held that general jurisdiction is “not appropriate” under Bauman “without more” than corporate registration and agent for service of process.  Id. at 429.  In Magwitch, LLC v. Pusser’s West Indies Ltd., 200 So. 3d 216 (Fla. App. 2016), the court was “not persuaded” that registration to business was a basis for general personal jurisdiction, holding that “Pennsylvania Fire has yielded to the two-prong analysis for long-arm jurisdiction set forth in recent decades by the Supreme Court.”  Id. at 218.  Accord Rizack v. Signature Bank, N.A., 2017 WL 5197917, at *3-4 (Fla. Cir. March 20, 2017) (“personal jurisdiction over a corporate defendant cannot be found on the basis of a defendant’s registration to do business in the state and designation of a corporate agent alone”) (citation and quotation marks omitted); Goldstein v Hawker Beechcraft Services, 2016 WL 3771165, at *7 (Fla. Cir. June 3, 2016) (that defendant “file[d] with the Florida Department of State for the privilege of conducting such business here,” even with other in-state contacts, insufficient to establish general personal jurisdiction).

Likewise, federal courts both pre- and post-Bauman have repeatedly refused to rule that registration and appointment of an agent for service is a valid basis for general jurisdiction over a nonresident defendant.  See, e.g., Waite v. All Acquisition Corp., 901 F.3d 1307, 1319 & n.5 (11th Cir. 2018) (“we reject the exercise of general personal jurisdiction based on such implied consent”; “an overly broad interpretation of [a state] registration scheme as providing consent might be inconsistent with the Supreme Court’s decision in” Bauman) (applying Florida law); Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000) (“Courts of appeals that have addressed this issue have rejected the argument that appointing a registered agent is sufficient to establish general personal jurisdiction over a corporation”) (applying Florida law); Marrero v. State Farm Fire & Casualty Co.,  2021 WL 2555438, at *3 (Mag. M.D. Fla. May 24, 2021) (corporate registration “is plainly insufficient to make out a prima facie case for general jurisdiction”), adopted, 2021 WL 2551627 (M.D. Fla. June 22, 2021); Israel v. Alfa Laval, Inc., 2020 WL 7640730, at *3 (M.D. Fla. Dec. 23, 2020) (“even though [defendant] is registered to do business in Florida, courts have held this is not sufficient to establish general jurisdiction”); Steelers Keys LLC v. High Tech National LLC, 2020 WL 7197822, at *5 (S.D. Fla. Dec. 7, 2020) (allegations of Florida licensing and registered agent are “insufficient to confer general jurisdiction” under Waite); Bryant v. Hasbro, Inc., 2019 WL 2211053, at *3 (M.D. Fla. May 22, 2019) (“having employees and registering to do business in Florida are not sufficient circumstances to render a corporation at home in Florida for purposes of general jurisdiction”); Lee v. Branch Banking & Trust Co., 2018 WL 5633995, at *3 (S.D. Fla. Oct. 31, 2018) (defendant’s “maintenance of an agent in Florida to accept service of process does not subject it to general jurisdiction here”); Storms v. Haugland Energy Group, LLC, 2018 WL 4347603, at *7 (Mag. S.D. Fla. Aug. 17, 2018) (“that the Defendant has a Registered Agent does not create general personal jurisdiction”), adopted, 2018 WL 4347604 (S.D. Fla. Sept. 4, 2018); Howe v. Samsung Electronics America, Inc., 2018 WL 2212982, at *4-5 (N.D. Fla. Jan. 5, 2018) (“[T]he requirement to designate a registered agent is not intended to – and in any event under the Due Process Clause could not – subject a corporation to an action over which a state’s courts cannot properly exercise jurisdiction. Were it otherwise, the Supreme Court’s decisions recognizing limits on personal jurisdiction over out-of-state corporations would be nearly meaningless.”); Hinkle v. Continental Motors, Inc., 268 F. Supp.3d 1312,1327 (M.D. Fla. 2017) (being “registered to do business here . . . alone is insufficient to confer jurisdiction”), aff’d, 775 F. Appx. 545 (11th Cir. 2019); PHD@Western, LLC v. Rudolf Construction Partners, LLC, 2016 WL 5661637, at *4 (S.D. Fla. Sept. 30, 2016) (“merely registering to do business in a state is not a sufficient basis to establish the minimum contacts necessary for a court to obtain personal jurisdiction over a non-resident defendant”); Erwin v. Ford Motor Co., 2016 WL 7655398, at *12 (M.D. Fla. Aug. 31, 2016) (consent through registration does not warrant “exercise of jurisdiction [because it fails to] . . . satisfy the Due Process Clause”); Evans v. Andy & Evan Industries, Inc., 2016 WL 8787062, at *3 (S.D. Fla. July 15, 2016) (registration to do business, even with other contacts, insufficient to support general jurisdiction); Royal Acquisitions 001, LLC v. Ansur America Insurance Co., 2015 WL 1437689, at *4 (S.D. Fla. March 27, 2015) (registration to do business and appointment of a registered agent “are not so continuous and systematic as to render Defendant essentially at home”); Recao v. Bell Helicopter Textron, Inc., 2014 WL 12595302, at *4 (S.D. Fla. Sept. 23, 2014) (rejecting both registration and agent for service as basis for general jurisdiction); Mio, LLC v. Valentino’s, Inc., 2013 WL 3364392, at *6 (M.D. Fla. July 3, 2013) (an “agent to accept service of process . . ., standing alone, does not meet the general jurisdiction requirement”); Keston v. FirstCollect, Inc., 523 F. Supp.2d 1348, 1354 (S.D. Fla. Oct. 31, 2007) (“presence of a corporate agent within the State, service on that agent, and a license to do business in the State are not enough to support my personal jurisdiction . . . where the cause of action is not related to these contacts”); In re Farmland Industries, Inc., 2007 WL 7694308, at *12 (M.D. Fla. March 30, 2007) (“agree[ing] with those cases holding that registering to do business and appointing a registered agent in the state of Florida, without more, does not subject a foreign corporation to the general personal jurisdiction of the state for any and all unrelated actions”); Sofrar, S.A. v. Graham Engineering Corp., 35 F. Supp.2d 919, 919 (S.D. Fla. 1999) (“personal jurisdiction over a corporate defendant cannot be found on the basis of a defendant’s registration to do business in the state and designation of a corporate agent alone”).  Florida looks solid.

Georgia

In Cooper Tire & Rubber Co. v. McCall, 863 S.E.2d 81 (Ga. 2021) (“McCall”), Georgia became the first post-Bauman state to “go south” on personal jurisdiction by consent.  It did so largely because Georgia’s poorly drafted long arm statute, registration statute, Ga. Code §9-10-91, excluded registered foreign corporations from its definition of specific jurisdiction.  Thus, if registered foreign corporations were (as most courts have held) not constitutionally subject to general jurisdiction, the statute provided no basis for personal jurisdiction at all:

[I]f we were to overrule [our pre-Bauman] general-jurisdiction holding, these corporations would not be subject to general jurisdiction in this State, either.  This outcome would allow out-of-state corporations to insulate themselves from personal jurisdiction in Georgia simply by obtaining the requisite certificate of authority and registering to do business here, thereby effectively immunizing themselves from suit for any cause whatsoever.

863 S.E.2d at 92 (emphasis original).

Rather than reach that result, McCall lashed Georgia law to the century old mast of Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917).  863 S.E.2d at 89.  As we discussed in some detail hereMcCall’s statement that “Pennsylvania Fire has not been overruled,” id., is probably inaccurate.  Shaffer v. Heitner, 433 U.S. 186, 212 n. 39 (1977).  But maintaining what Shaffer called the “fiction” of consent at least avoided the “perverse” result caused by the Georgia statute’s unfortunate language.  Id. at 92.

Thus, McCall stuck with that court’s pre-Bauman fix of that statutory quirk by recognizing general jurisdiction by consent via corporate registration in Allstate Insurance Co. v. Klein, 422 S.E.2d 863, 864 (Ga. 1992).  It did so despite admitting that Klein‘s “inverse implication” creating such jurisdiction without specifically saying so “may not have been well-explained,” 863 S.E.2d at 91, and was “in tension with the trajectory of recent United States Supreme Court decisions addressing a state’s authority to exercise general personal jurisdiction over corporations.”  Id. at 92.

But, bottom line, after McCall (at least until the Supreme Court holds otherwise), id., Georgia now allows general jurisdiction by consent.  At least, McCall bought Georgia’s legislature time to fix the state’s Long Arm statute.  Id. (“the General Assembly could preemptively obviate that risk by modifying the governing statutes to enable Georgia courts to exercise specific personal jurisdiction over out-of-state corporations . . . [by] tailor[ing] this State’s jurisdictional scheme within constitutional limits”).

Hawai’i

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

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

Id. at *4 (quoting §425R) (footnote omitted).  More recently, another court declared, “[e]vidence that [defendant] is registered to do business here . . . does not suffice to establish that it is ‘essentially at home’ in Hawai‘i.”  Saunders v. San Juan Construction Co., 2020 WL 3052206, at *3 (D. Haw. June 8, 2020).  So Hawai’i looks favorable.

Idaho

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

Illinois

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

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

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

Illinois federal courts, particularly since Bauman, have held that consent by registration is not a proper exercise of general jurisdiction.  See Cincinnati Insurance Co. v. LG Chem America, Inc., 2021 WL 4864231, at *2 (S.D. Ill. Oct. 19, 2021) (“while Plaintiffs allege that [defendant] is registered to do business in Illinois, this does not constitute its consent to personal jurisdiction”); Hub Group, Inc., Plaintiff, v. Go Hub Group Holdings Corp., 2021 WL 4264349, at *3 (N.D. Ill. Sept. 20, 2021) (“agree[ing] with the myriad other courts that have found designating an agent . . . insufficient to sustaining general personal jurisdiction over a defendant”); Tavel v. Riddle, 2021 WL 1121120, at *3 (N.D. Ill. March 24, 2021) (“that [defendant] is qualified to do business in Illinois says nothing about [its] contacts with the state”); McClellan v. CSX Transportation, Inc., 2018 WL 6192192, at *3 (N.D. Ill. Nov. 28, 2018) (following Aspen); Al Haj v. Pfizer Inc., 2018 WL 1784126, at *4 (N.D. Ill. April 13, 2018) (“Nor does the presence in the forum State of an agent authorized to receive corporate correspondence” allow general personal jurisdiction); Perry v. JMT Capital Management, LLC, 2018 WL 1635855, at *3 (N.D. Ill. April 5, 2018) (“That defendant is authorized to conduct business in Illinois and maintains a registered agent in the State is insufficient to confer general jurisdiction.”); MG Design Assocs. Corp. v. CoStar Realty Information, Inc., 267 F. Supp.3d 1000, 1014-15 (N.D. Ill. 2017) (“registering to do business is not enough to confer general jurisdiction over a foreign corporation”); Guaranteed Rate, Inc. v. Conn, 264 F. Supp.3d 909, 916 (N.D. Ill. 2017) (registration to do business insufficient to support general jurisdiction); Congdon v. Cheapcaribbean.com, Inc., 2017 WL 5069960, at *8 (N.D. Ill. Nov. 3, 2017) (“it has long been held that registering to do business in a state, ‘standing alone,’ cannot satisfy due process required to assert personal jurisdiction”); Muenstermann v. United States, 2017 WL 1408037, at *2 (S.D. Ill. April 20, 2017) (corporate registration/agent for service of process “do not constitute the type of continuance and systematic affiliations” required to support general jurisdiction; pre-Bauman contrary precedent is no longer applicable); Leibovitch v. Islamic Republic of Iran, 188 F. Supp.3d 734, 749 (N.D. Ill. 2016) (“under Illinois law, the appointment of a registered agent is not determinative in the personal jurisdiction analysis”), aff’d, 852 F.3d 687 (7th Cir. 2017); Perez v. Air & Liquid Systems Corp., 2016 WL 7049153, at *6-9 (S.D. Ill. Dec. 2, 2016) (“registering to do business or maintaining a registered agent is not enough to confer general jurisdiction over a foreign corporation”); Johnson v. Barrier, 2016 WL 3520157 (N.D. Ill. June 28, 2016) (dismissing action; defendant’s consent to jurisdiction in previous cases not judicial estoppel); Demaria v. Nissan, Inc., 2016 WL 374145, at *6 (N.D. Ill. Feb. 1, 2016) (registration does not render corporation “at home” under Bauman); Dimitrov v. Nissan North America, Inc., 2015 WL 9304490, at *4-5 (N.D. Ill. Dec. 22, 2015) (applying “lessons of Daimler”; no general jurisdiction over foreign corporation simply because it was registered to do business in Illinois); Surita v. AM General LLC, 2015 WL 12826471, at *3 (N.D. Ill. Nov. 4, 2015) (plaintiff’s “desire for this Court to exercise ‘all-purpose jurisdiction’ over [defendant] based on the presence of its registered agent in Illinois and [its] registration to do business in Illinois is unavailing, especially in light of” Bauman); Rozumek v. Union Carbide Corp., 2015 WL 12831301, at *2 (S.D. Ill. July 1, 2015) (registration to do business does not create general jurisdiction under Bauman); Rozumek v. General Electric Co., 2015 WL 12829795, at *2 (S.D. Ill. July 1, 2015) (same); Shrum v. Big Lots Stores, Inc., 2014 WL 6888446, at *2, *7 (C.D. Ill. Dec. 8, 2014) (“maintenance of an agent for the service of process does not rise to the level of ‘continuous and systematic’ contacts”); Sullivan v. Sony Music Entertainment, 2014 WL 5473142, at *3 (N.D. Ill. Oct. 29, 2014) (corporate registration could not satisfy Bauman general jurisdiction standard); Rawlins v. Select Specialty Hospital, 2014 WL 1647182, at *5 (N.D. Ill. April 23, 2014) (“the mere presence of one individual in Illinois to accept process does not rise to the level of ‘continuous and systematic’ contacts needed for the court to exercise general jurisdiction”).  Before Bauman, see: ACUITY v. Roadtec, Inc., 2013 WL 6632631, at *5-6 (N.D. Ill. Dec. 16, 2013) (registration to do business does not create general jurisdiction); Bray v. Fresenius Medical Care Aktiengesellschaft Inc., 2007 WL 7366260, at *4 (N.D. Ill. Aug. 30, 2007) (corporate registration “does not demonstrate sufficient minimum contacts to merit general personal jurisdiction”).  Illinois is rock solid in its rejection of general jurisdiction by consent.

Indiana

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

Iowa

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

Kansas

Kansas is seriously murky.  In a pre-Bauman decision the Supreme Court of Kansas held that registration is sufficient to establish general jurisdiction by consent.  Merriman v. Crompton Corp., 146 P.3d 162, 171, 177 (Kan. 2006).  Merriman found the Delaware decision in Sternberg “persuasive,” id. at 176, but since then the Delaware Supreme Court overruled Sternberg in light of Bauman, (see Delaware).  Along those lines, a recent Kansas intermediate appellate court ruled that registration alone is insufficient for general jurisdiction.  Kearns v. New York Community Bank, 400 P.3d 182 (table), 2017 WL 1148418, at *6 (Kan. App. March 24, 2017).  Federal courts, post-Bauman, are split.  In In re Syngenta AG MIR 162 Corn Litigation, the court recognized that “a state has no legitimate interest in hosting litigation between two out-of-state parties that does not arise from either parties’ activities in the state.” 2016 WL 2866166, at *6 (D. Kan. May 17, 2016).  However, Syngenta ultimately based its jurisdictional ruling on the Dormant Commerce Clause rather than Due Process.  Id. at *5-6.  Conversely, other Kansas district courts continue to allow general jurisdiction by consent.  Butler v. Daimler Trucks, LLC, 2020 WL 128055, at *10 (D. Kan. Jan. 10, 2020) (following Freedom Transportation); Freedom Transportation, Inc. v. Navistar International Corp., 2019 WL 4689604, at *19-20 (D. Kan. Sept. 26, 2019) (following Syngenta); AK Steel Corp. v. PAC Operating Ltd. Partnership, 2017 WL 3314294, at *4 (D. Kan. Aug. 3, 2017) (Kansas will continue to follow Pa. Fire unless expressly overruled); Snyder Insurance Services. v. Sohn, 2016 WL 6996265, at *3 (D. Kan. Nov. 30, 2016) (defendant “consented to general personal jurisdiction by its registration to do business in Kansas”); In re Syngenta AG MIR 162 Corn Litigation, 2016 WL 1047996, at *1-3 (D. Kan. March 11, 2016) (court “not prepared” to conclude that Bauman impliedly overruled Pa. Fire).  As of now the weight of Kansas precedent puts that state in the minority allowing registration based on bare corporate registration.

Kentucky

The issue of consent-based jurisdiction through registration to do business or designation of an agent is uncertain in Kentucky, because the statute, Ky. Rev. Stat. Ann. §14A.4-010, provides no guidance, and few relevant cases have addressed this topic.  This absence of precedent may arise from the Kentucky Supreme Court’s limitation the Commonwealth’s Long-Arm statute (which does not extend to maximum constitutional due process limits) so that “even when the defendant’s conduct and activities fall within one of the enumerated [Kentucky-related] categories, the plaintiff’s claim still must ‘arise’ from that conduct or activity.”  Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 56 (Ky. 2011), a standard that seems to permit only specific jurisdiction.  Most Kentucky courts thus “have rejected the argument that designating an agent for service of process is sufficient to establish personal jurisdiction.”  Lubbers v. John R. Jurgensen Co., 2021 WL 4066663, at *5 (E.D. Ky. Sept. 7, 2021).  See Carter v. Paschall Truck Lines, Inc., 388 F. Supp.3d 883, 893-94 (W.D. Ky. 2019) (“a corporation having a registered agent in Kentucky did not establish a prima facie showing of jurisdiction”); Stuart v. Lowe’s Home Centers, LLC, 2017 WL 4875281, at *2 (W.D. Ky. Oct. 27, 2017)), affd, 737 F. Appx. 278 (6th Cir. 2018).  Tentatively, we’ll put Kentucky among the states rejecting general jurisdiction based on corporate registration.

Louisiana

Louisiana state and federal courts, both before and after Bauman, have rejected general jurisdiction on a consent by registration basis.  In Gulf Coast Bank & Trust Co. v. Designed Conveyor Systems, LLC, 717 F. Appx. 394 (5th Cir. 2017) (applying Louisiana law), the court rejected the plaintiff’s “outdated view[s] of general jurisdiction,” holding instead that “Louisiana law . . . does not require a foreign entity to consent to jurisdiction as a condition of doing business in the state.”  Id. at 398.  See also Clark v. Marcus Todd Sampson Estate, 2020 WL 7034578, at *3 (W.D. La. Nov. 30, 2020) (“registration and the appointment of an agent in the forum state does not render a defendant “at home” in the forum, and . . . mere registration does not permit a finding that the defendant has ‘consented’ to general jurisdiction”) (footnote omitted); Shaneyfelt v. Norfolk Dredging Co., 2020 WL 6582276, at *3-4 (E.D. La. Nov. 10, 2020) (having registered agent in Louisiana “falls woefully short of the systematic and continuous contacts necessary to meet the requirements of general jurisdiction”); Gamboa v. Great Lakes Dredge & Dock Co., LLC of Louisiana, 2020 WL 4373111, at *5 (M.D. La. July 30, 2020) (“licensing, registration, and appointed agent for service of process in Louisiana . . . are insufficient to establish general jurisdiction”); Young v. United Rentals, 2018 WL 7324629, at *3 (Mag. W.D. La. Dec. 19, 2018) (“courts do not consider appointment of an agent for process to be a waiver of the right to due process protection”), adopted, 2019 WL 614547 (W.D. La. Feb. 13, 2019); Mark Doyle Construction, LLC v. TriHM Foundation, LLC, 2018 WL 3763014, at *8 (W.D. La. Aug. 8, 2018) (“without more, the appointment of an agent for service of process and the registration to do business within the state, does not satisfy the criteria to exercise general jurisdiction”); Firefighters’ Retirement System v. Royal Bank of Scotland PLC, 2017 WL 3381227, at *4 n.41 (M.D. La. Aug. 4, 2017) (“being registered as a foreign corporation with the Louisiana Secretary of State’s office is not enough to establish general personal jurisdiction”); Nationwide Signs, LLC v. National Signs, LLC, 2017 WL 2911577, at *3 (E.D. La. July 7, 2017) (“the presence of a registered agent and registered business office is insufficient to support the exercise of general jurisdiction”); Mercury Rents, Inc. v. Crenshaw Enterprises Ltd., 2017 WL 2382483, at *1-2 (W.D. La. May 30, 2017) (“registering to do business in a forum State does not establish general jurisdiction”); J.A.H. Enterprises, Inc. v. BLH Equipment, LLC, 2016 WL 7015688, at *4 (Mag. M.D. La. Oct. 24, 2016) (“Maintaining a license in a state does not necessarily mean that the state has general jurisdiction over the licensed individual.”), adopted, 2016 WL 7031288 (M.D. La. Nov. 30, 2016); Sciortino v. CMG Capital Management Group., Inc., 2016 WL 4799099, at *3 (E.D. La. Sept. 14, 2016) (state registration to sell securities does not support general jurisdiction); Firefighters’ Retirement System v. Royal Bank of Scotland, PLC, 2016 WL 1254366, at *5 (M.D. La. March 29, 2016) (“Fifth Circuit precedent has consistently held that being qualified to do business in a state and the appointment of a registered agent for service alone cannot support the exercise of general jurisdiction. Such precedent is further strengthened post-[Bauman].”); Long v. Patton Hospitality Management, LLC, 2016 WL 760780, at *4-6 (E.D. La. Feb. 26, 2016) (contacts including registering to do business and maintaining a registered agent for service insufficient to establish general personal jurisdiction); Louisiana Limestone & Logistics, LLC v. Granite Group, 2014 WL 1217956, at *5 (W.D. La. Feb. 28, 2014) (“[Plaintiff] contends that this Court may exercise general jurisdiction over [defendant] because [defendant] registered with the Louisiana Secretary of State. . . .   However, [plaintiff’s] position is not consistent with Fifth Circuit precedent holding that the presence of the registered agent and registered business office alone is insufficient to support the exercise of general jurisdiction.”); Crochet v. Wal-Mart Stores, Inc., 2012 WL 489204, at *4 (W.D. La. Feb. 13, 2012) (no jurisdiction where a defendant’s “only contacts with Louisiana are its registration with the Louisiana Secretary of State to do business and its appointment of an agent for service of process”); DNH, LLC v. In-N-Out Burgers, 381 F .Supp.2d 559, 565 (E.D. La. 2005) (“Qualifying to do business in a state and appointing an agent for service of process there do not . . . sustain an assertion of general jurisdiction”); Lyons v. Swift Transportation Co., 2001 WL 1153001, at *6-7 (E.D. La. Sept. 26, 2001) (“regardless of the existence of an agent for service of process, the exercise of personal jurisdiction over a non-resident defendant must nevertheless comport with the principles of due process”); Jones v. Family Inns of America, 1989 WL 57130, at *1 (E.D. La. May 23, 1989) (“[a]s the defendant’s sole contact with the State of Louisiana is an appointed agent for service of process, the defendant’s contact does not satisfy the minimum contacts requirement of International Shoe”).  See also Taylor v. Arellano, 928 So.2d 55, 58-60 (La. App. 2005) (nonresident corporation was not subject to general jurisdiction based on designation of agent for service, because there was not sufficient contact to satisfy due process, and narrowly construing Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 1187 (La. 1994), which contained dicta that could be read as supportive of general jurisdiction through consent).  We should do all right in Louisiana.

Maine

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

Maryland

Maryland’s statutory framework eliminates consent through registration as a basis for general jurisdiction.  See Md. Code Ann., Corps. & Assns §7-101 (“[w]ith respect to any cause of action on which a foreign corporation would not otherwise be subject to suit in this State, compliance with [the registration statute]” neither renders a foreign corporation “subject to suit” nor is considered “consent by it to be sued” in Maryland.).  Well before Bauman, the Maryland Court of Appeals accordingly rejected general jurisdiction for merely registering to do business and appointing a service agent.  See Republic Properties Corp. v. Mission West Properties, LP, 895 A.2d 1006, 1022 (Md. 2006) (“service of process, in Maryland, upon a resident agent appointed by a foreign corporation will subject the corporation to State court jurisdiction if, in addition to the fact, and validity, of that service, it is shown that the corporation has sufficient contact with the State to make it constitutionally subject to suit here”); Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988) (presence of the agent for service “would not alone be sufficient to subject [defendant] to suit here”).  Other courts applying Maryland law, of course, agree.  68th Street Site Work Group v. Airgas, Inc., 2021 WL 4255030, at *8 (D. Md. Sept. 16, 2021) (“despite [defendant’s] registration in Maryland . . . this Court lacks general jurisdiction”); Arkansas Nursing Home Acquisition, LLC v. CFG Community Bank, 460 F. Supp.3d 621, 640 (D. Md. May 19, 2020) (in-state registration does not justify general jurisdiction); Gogel v. Maroulis, 2019 WL 5593280, at *5 (D. Md. Oct. 30, 2019) (“even though [defendant] is registered to do business in Maryland and has a registered agent in Maryland[, t]hose facts, standing alone, do not establish general jurisdiction”); 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.

Massachusetts

The Massachusetts registration statute is silent on the issue of consent to jurisdiction over registration for appointment of an agent.  Mass. Gen. L. 156D §15.01.  Federal precedent recognizes that where a “defendant has registered as a foreign corporation to do business in Massachusetts and has named a registered agent for service of process . . . such activities, standing alone, are not enough to confer general personal jurisdiction.”  Fiske v. Sandvik Mining & Construction USA, LLC, 540 F. Supp.2d 250, 256 (D. Mass. 2008) (following Sandstrom (see Maine).  They do, however, “add some modest weight” to the jurisdictional analysis.  Id.; accord D.S. Brown Co. v. White-Schiavone, JV, 537 F. Supp.3d 36, 43 (D. Mass. 2021) (“regist[ration] to do business in Massachusetts . . . falls short of the ‘exceptional’ circumstances warranting the exercise of this Court’s general jurisdiction”); D.S. Brown Co. v. White-Schiavone, JV, 502 F. Supp.3d 584, 591 (D. Mass. 2020) (“that [defendant] is registered to do business here . . . without more, fails to create the exceptional circumstance required to render [it] ‘essentially at home’ in Massachusetts”); Katz v. Spiniello Companies, 244 F. Supp.3d 237, 245 (D. Mass. 2017) (registration to do business not even sufficient for specific jurisdiction where action did not involve in-state business); Grice v. VIM Holdings Group, LLC, 2017 WL 6210891, at *4, 10 (D. Mass. Dec. 8, 2017) (no general jurisdiction; finding registration relevant to specific jurisdiction post-Bauman); Cossart v. United Excel Corp., 2014 WL 4927041, at *2 (D. Mass. Sept. 30, 2014) (“Registration . . . cannot satisfy general jurisdiction’s requirement of systematic and continuous activity.”), rev’d on other grounds, 804 F.3d 13 (1st Cir. 2015) (specific jurisdiction).  There exists, however, a pre-Bauman Massachusetts state trial decision, citing Pa. Fire, and other Pennoyer-era cases, with extensive dicta suggesting that consent by registration was a valid exercise of general jurisdiction.  Galvin v. Jaffe, 2009 WL 884605, at *6-11 (Mass. Super. Jan. 26, 2009) (while defendant was individual corporate officer; consent-by-registration of corporate entities as a basis for general jurisdiction also discussed).  Despite that discordant note, Massachusetts seems favorable.

Michigan

The Michigan Supreme Court held decades ago that:

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

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

Minnesota

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, seeGreenState Credit Union v. Hy-Vee, Inc., 500 F. Supp.3d 799, 807 (D. Minn. 2020) (“Although defendant makes a compelling argument that Knowlton is inconsistent with the Supreme Court’s recent general jurisdiction decisions, the court agrees with other courts in this district that it is still bound by Knowlton; allowing interlocutory appeal of jurisdictional issue); ResCap Liquidating Tr. v. LendingTree, LLC, 2020 WL 1317719, at *5 (D. Minn. March 20, 2020) (“Knowlton makes clear that consent is an independent basis for jurisdiction.”); American Dairy Queen Corp. v. W.B. Mason Co., 2019 WL 135699, at *6 (D. Minn. Jan. 8, 2019) (“although persuasive arguments can be made that the holding of Knowlton is not reconcilable with the narrowing of the boundaries of due process that govern an analysis of minimum contacts and general personal jurisdiction under [Bauman], this Court nonetheless remains bound by Knowlton“); Ritchie Capital Management, Ltd. v. Costco Wholesale Corp., 2017 WL 4990520, at *2 (D. Minn. Oct. 30, 2017); Bandemer v Ford Motor Co., 2017 WL 10185684, at *3 (Minn. Dist. May 25, 2017); Edmondson v. BNSF Railway Co., 2015 WL 10528453, at *3-4 (Minn. Dist. May 12, 2015).  Cf. McGill v. Conwed Corp., 2017 WL 4534827, at *8 (D. Minn. Oct. 10, 2017) (no general jurisdiction where corporate registration was revoked).  So far, Minnesota is solid the other way, thus remaining a haven for forum shoppers.

Mississippi

Mississippi’s registration statute specifically excludes consent by registration, providing that “appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.”  Miss. Code Ann. §79-35-15 (2013).  This exclusion appears to be a reaction to Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229 (Miss. 1987), which had interpreted the prior statute to create general jurisdiction by consent.  Id. at 1230.

Under the current statute, “[a]lone, [defendant’s] business registration in Mississippi does not establish that it is ‘at home’ in Mississippi.” Mullen v. Bell Helicopter Textron, Inc., 136 F. Supp.3d 740, 744 (S.D. Miss. 2015). Accord Wise v. Wal-Mart Stores E., LP, 2019 WL 3769624, at *2 (N.D. Miss. Aug. 9, 2019) (quoting  §79-35-15); Pitts v. Ford Motor Co., 127 F. Supp.3d 676, 683 (S.D. Miss. 2015) (that defendant “is qualified and registered to do business in the State of Mississippi . . . [is] insufficient to establish that [it] is susceptible to general jurisdiction”); Handshoe v. Yount, 2015 WL 7572344, at *4 (S.D. Miss. Nov. 24, 2015) (“registering . . . in Mississippi and appointing a designated corporate agent” not enough for general jurisdiction); Robinson v. Knight Protective Service, Inc., 2014 WL 1326096, at *4 (S.D. Miss. March 31, 2014) (quoting and following Norfolk Southern); Continental First Federal, Inc. v. Watson Quality Ford, Inc., 2009 WL 2032401, at *9-10 (M.D. Tenn. July 9, 2009) (“registering to do business and appointing an in-state agent for service of process do not alone establish general personal jurisdiction over a nonresident”) (applying Mississippi law); Norfolk Southern Railway Co. v. Burlington Northern, 2005 WL 1363210, at *2-3 (S.D. Miss. June 2, 2005) (“reject[ing] the notion that merely registering to do business and appointing an in-state agent for service of process automatically confer general personal jurisdiction over a nonresident defendant”).  Contra Beyond Capital Financial Management Group. Inc. v. Byline Bank, 2021 WL 4394265, at *6 (S.D. Miss. Sept. 24, 2021) (following Read while ignoring the statute).

Mississippi looks alright on this issue.

Missouri

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

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

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

Numerous post-Bauman lower state and federal courts have reached the same result.  See Perficient, Inc. v. Continuant, Inc., 546 S.W.3d 610, 611 (Mo. App. 2018) (rejecting general jurisdiction by corporate registration); Madlock v. Westar Energy, Inc., 517 S.W.3d 678, 679 (Mo. App. 2017) (following Dolan); White v. Steak N Shake, 2020 WL 1703938, at *2 (E.D. Mo. April 8, 2020) (“registering to do business in Missouri and designating an agent for service of process in Missouri does not alone bring [a defendant] within this Court’s general jurisdiction”); Fullerton v. Smith & Nephew, Inc., 2019 WL 2028712, at *3 (E.D. Mo. May 8, 2019) (“the mere presence of a registered agent in Missouri is insufficient to establish jurisdiction”); Siegfried v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 2778107, at *5 (E.D. Mo. June 27, 2017) (“[c]ompliance with Missouri’s registration statute does not confer personal jurisdiction”); Everett v. Aurora Pump Co., 2017 WL 2778091, at *1 (E.D. Mo. June 27, 2017) (following Dolan; “registration no longer provides a basis for a court to exercise personal jurisdiction over a defendant”); Matthews v. BNSF Railway Co., 2017 WL 2266891, at *2 (W.D. Mo. May 23, 2017) (following Dolan; reconsidering prior decision); Alvarracin v. Volume Services, Inc., 2017 WL 1842701, at *2 (W.D. Mo. May 4, 2017) (“agree[ing] with the findings of those courts who have determined that Knowlton’s [see Minnesota] holding cannot survive in light of” Bauman); MacCormack v. The Adel Wiggins Group, 2017 WL 1426009, at *3-4 (E.D. Mo. April 21, 2017) (similar; overruling prior decisions in same litigation); Addelson v. Sanofi S.A., 2016 WL 6216124, at *4 (E.D. Mo. Oct. 25, 2016) (“personal jurisdiction is not established by appointment of an agent for service of process”; Knowlton not good law post-Bauman); In Re: Zofran (Ondansetron) Products Liability Litigation, 2016 WL 2349105, at *4 (D. Mass. May 4, 2016) (general jurisdiction by consent “would distort the language and purpose of the Missouri registration statute and would be inconsistent with” Bauman) (applying Missouri law); Beard v. Smithkline Beecham Corp., 2016 WL 1746113, at *2 (E.D. Mo. May 3, 2016) (rejecting registration to do business as general jurisdiction by consent; prior precedent no longer valid after Bauman); Hovsepian v. Crane Co., 2016 WL 2997641, at *1-2 (E.D. Mo. April 13, 2016) (no jurisdiction “as to the moving defendants that purportedly are registered to do business in this state”); Keeley v. Pfizer, Inc., 2015 WL 3999488, at *4 (E.D. Mo. July 1, 2015) (“A defendant’s consent to jurisdiction must satisfy the standards of due process and finding a defendant consents to jurisdiction by registering to do business in a state or maintaining a registered agent does not”); Neeley v. Wyeth LLC, No., 2015 WL 1456984, at *3 (E.D. Mo. March 30, 2015) (Bauman “clearly rejects” general jurisdiction based on corporate registration); Smith v. Union Carbide Corp., 2015 WL 191118, at *3 (Mo. Cir. St. Louis City Jan. 12, 2015) (having registered agent “does not automatically establish general personal jurisdiction”).

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

Montana

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

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

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

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

Id. at 8-9 (citations omitted).

The relevant Montana statute provides: “The appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in the state.” Mont. Code Ann. §35-7-105.  Thus, even before Bauman, the Ninth Circuit declined to permit consent through registration under Montana law.  King v. American Family Mutual Insurance Co., 632 F.3d 570, 579 (9th Cir. 2011) (where the nonresident defendant’s “sole contacts” were “Certificates of Authorization and . . . an agent for service of process” they could not support general jurisdiction) (applying Montana law).  See First National Bank v. Estate of Carlson, 448 F. Supp.3d 1091, 1105 (D. Mont. 2020) (“In Montana, a foreign corporation registering to do business does not amount to consent of personal jurisdiction.”).  Montana is now rock solid.

Nebraska

Overruling its prior precedent in Mittelstadt v. Rouzer, 328 N.W.2d 467 (Neb. 1982), the Nebraska Supreme Court in Lanham v. BNSF Railway Co., 939 N.W.2d 363 (Neb. 2020), held that after Bauman general jurisdiction by consent could not be constitutional.  Mittelstadt “reflects the 19th century’s traditional view of personal jurisdiction, where personal jurisdiction could be obtained over a nonresident by personal service in the state.”  Lanham, 939 N.W.2d at 368-69.  That view does not survive Bauman.  

We conclude that treating [defendant’s] registration to do business in Nebraska as implied consent to personal jurisdiction would exceed the due process limits prescribed in . . . [Bauman]. Currently, every state requires a foreign corporation doing business in the state to register and appoint an agent for service of process.  Consequently, consent by registration would permit a corporation to be subject to general jurisdiction in every state in which it does business. This is the same type of global reach jurisdiction the U.S. Supreme Court expressly rejected as being inconsistent with due process.

Lanham, 939 N.W.2d at 371 (citations, quotation marks, and footnote omitted).  “[W]e join the majority of jurisdictions and hold that a corporation’s registration . . . does not provide an independent basis for the exercise of general jurisdiction.  Accordingly, we overrule Mittelstadt.”  Id.  Thus, Nebraska now firmly rejects general jurisdiction by consent.

Nevada

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

New Hampshire

New Hampshire’s registration statute, N.H. Rev. Stat. §293-A:15.01, does not provide that a nonresident defendant’s compliance results in its consent to general jurisdiction.  The First Circuit has held that “[c]orporate registration in New Hampshire adds some weight to the jurisdictional analysis, but it is not alone sufficient to confer general jurisdiction.”  Cossaboon v. Maine Medical Center, 600 F.3d 25, 37 (1st Cir. 2010) (applying New Hampshire law).  Cossaboon did not address Holloway v. Wright & Morrissey, Inc., 739 F.2d 695 (1st Cir. 1984), wherein an entirely non-constitutional analysis interpreted a prior New Hampshire’s statute, “at least where litigation is causally connected to a defendant’s acts in New Hampshire,” corporate registration constituted “consent to jurisdiction.”  Id. at 699.  The caveat makes clear that Holloway was a specific jurisdiction case, as it refused to rule on whether registration “would authorize a suit on a cause of action that has no relationship to the state of New Hampshire.”  Id.  See Pizz v. Jebeli, 2017 WL 10128275, at *4 (N.H. Super. Nov. 14, 2017) (New Hampshire registration to do business insufficient, without more, to support specific jurisdiction).

Since Cossaboon is much more on point than Holloway, we put New Hampshire in the anti-consent majority.

New Jersey

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

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

*          *          *          *

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

Id. at 444-46 (citations omitted).  Accord Shifchik v. Wyndham Worldwide Corp., 2020 WL 1866942 (N.J. Super. App. Div. April 14, 2020) (“registration to do business in New Jersey does not constitute consent to submit to the general jurisdiction of courts in this state”) (following Dutch Run).

In Kim v. Korean Air Lines Co., 513 F. Supp.3d 462 (D.N.J. 2021), the court agreed that “post-[Bauman], registration does not confer jurisdiction.”  Id. at 469.  Kim “declined” to follow the Third Circuit’s pre-Bauman decision in Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991), because it:

cannot be squared with [Bauman]. If business registration alone is sufficient to confer jurisdiction, then “[Bauman]’s limitation on the exercise of general jurisdiction to those situations where ‘the corporation is essential[ly] at home’ would be replaced by a single sweeping rule: registration equals general jurisdiction.”

Id. (quoting Display Works, LLC, v. Bartley, 182 F. Supp.3d 166, 179 (D.N.J. 2016)).  Accord Metropolitan Group Property & Casualty Insurance Co. v. Electrolux Home Products, Inc., 2018 WL 2422023, at *2 (D.N.J. May 29, 2018) (“to conclude that a corporation consents to personal jurisdiction based solely on registration would be inconsistent with” Bauman); Horowitz v. AT&T, Inc., 2018 WL 1942525, at *12 (D.N.J. April 25, 2018) (“consent by registration is inconsistent with” Daimler; registration-based general personal jurisdiction “developed from an outmoded way of thinking about jurisdiction” and is “inconsistent with the Supreme Court’s recent Daimler decision”); Fundamental Innovation Systems International LLC v. LG Electronics, Inc., 2018 WL 279091, at *2 (Mag. E.D. Tex. Jan. 3, 2018) (“registering to do business in New Jersey or appointing an agent for service of process is not sufficient to confer general jurisdiction”) (applying New Jersey law), adopted, 2018 WL 837711, at *2 (E.D. Tex. Feb. 13, 2018) (“the mere fact that [a company] is registered to do business in New Jersey and appointed an agent to receive process does not mean that it is subject to general jurisdiction in New Jersey”); Boswell v. Cable Services Co., 2017 WL 2815077, at *4-6 (D.N.J. June 28, 2017) (corporation’s registration to do business did “not mean it consented to general jurisdiction in New Jersey”);

Further, although some New Jersey federal courts allowed consent by registration before Dutch Run, the majority did not.  Display Works, LLC, v. Bartley, 182 F. Supp.3d 166, 175-76 (D.N.J. 2016) (“the doctrinal refinement reflected in . . . the [Supreme] Court’s 21st century approach to general and specific jurisdiction” has replaced “sweeping interpretation[s]” of “routine registration statute[s]”; “Pa. Fire . . . cannot be squared with” Bauman); Singh v. Diesel Transportation, LLC, 2016 WL 3647992, at *3 (D. N.J. July 7, 2016) (“reject[ing] Plaintiff’s argument that compliance with [a statutory] designation of agent requirement renders [defendant] susceptible to general jurisdiction in New Jersey”); Barrera v. Hitachi Koki U.S.A., Ltd., 2015 WL 12839496, at *2 (D.N.J. Oct. 29, 2015) (corporate registration does “not subject [defendant] to general jurisdiction in New Jersey”); McCourt v. A.O. Smith Water Products Co., 2015 WL 4997403, at *4 (D.N.J. Aug. 20, 2015) (“The single fact that Defendant registered to do business in New Jersey is insufficient to conclude that it ‘consented’ to jurisdiction here.”); Kubin v. Orange Lake Country Club, Inc., 2010 WL 3981908, at *3 (D.N.J. Oct. 8, 2010) (“[f]iling a certificate to do business in New Jersey is insufficient to establish general jurisdiction”); Davis v. Quality Carriers, Inc., 2009 WL 3335860, at *3 (D.N.J. Oct. 15, 2009) (rejecting jurisdiction by consent by designation of agent for service of process under federal statute); Smith v. S&S Dundalk Engineering Works, Ltd., 139 F. Supp.2d 610, 620 n.6 (D.N.J. 2001) (“fil[ing]a certificate to do business in New Jersey . . . would still be insufficient to establish general jurisdiction”); Atkinson & Mullen Travel Inc. v. New York Apple Tours Inc., 1998 WL 750355, at *2 (D.N.J. Sept. 16, 1998) (corporate registration not “in and of itself sufficient to establish continuous and substantial contacts” for general jurisdiction).

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

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

New Mexico

In Chavez v. Bridgestone Americas Tire Operations, LLC, 503 P.3d 332 (N.M. 2021), the court re-interpreted that state’s corporate registration statute, to reject general jurisdiction by consent.  The “outmoded” contrary decision, Werner v. Wal-Mart Stores, Inc., 861 P.2d 270, 272-73 (N.M. App. 1993), was expressly overruled.  503 P.3d at 336, 348-49.

Chavez recognized that “the continuing viability of Pennsylvania Fire [Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917),] and consent by registration remains unsettled.”  503 P.3d at 337.  Instead of taking on the constitutional question directly, Chavez reject[ed] the construction accorded to the BCA by Werner.”  Id.

As to the constitutional issues, Chavez observed that “[t]he consent by registration theory of personal jurisdiction we address here is a relic of the now-discarded Pennoyer v. Neff era of personal jurisdiction jurisprudence.”  503 P.3d at 339.

If Pennsylvania Fire remains good law, then a foreign corporation would be subject to general personal jurisdiction in any state that demands consent as a condition of transacting business. Such an expansive view of general personal jurisdiction would appear inconsistent with the “at home” standard of [Bauman].

Id. at 341-42.  Examining post-Bauman personal jurisdiction by consent decisions nationwide, Chavez found “persuasive” the majority of precedent holding that “Pennsylvania Fire is at odds with the current approach to personal jurisdiction and the expectations created by the expansion of interstate and global commerce.”  503 P.3d at 342.

Leaving the federal constitutional issue for the Supreme Court, Chavez instead re-interpreted the New Mexico corporate registration statute.

[W]e conclude that the plain language of the [statute] does not require a foreign corporation to consent to jurisdiction. At no point does the [statute] state that a foreign corporation consents to general personal jurisdiction by registering and appointing a registered agent under the Act.  We will not graft a requirement of this consent onto the language of the statute, as we conclude that the Legislature has not clearly expressed an intent to require foreign corporations to so consent.

Id. at 345-46.  “Considering the constitutional constraints involved, we conclude that it would be particularly inappropriate to infer a foreign corporation’s consent to general personal jurisdiction in the absence of clear statutory language expressing a requirement of this consent.”  Id. at 348.

Although not cited in Chavez, that decision is in accord with the pre-Bauman decision Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir. 1975) (“we cannot say that [the statute] extends to causes of action not arising out of corporations’ New Mexico business”) (applying New Mexico law).  See also Zia Agric. Consulting, LLC v. Tyson Foods, Inc, 2021 WL 245686 (D.N.M. Jan. 25, 2021) (rejecting general jurisdiction by consent before Chavez).

New Mexico has thus definitively switched sides and now rejects general jurisdiction by consent.

New York

In Aybar v. Aybar, 177 N.E.3d 1257 (N.Y. 2021), the New York Court of Appeals rejected general jurisdiction by consent under the current Due Process framework.   Unlike the situation that existed over a century ago in Bagdon v. Philadelphia & Reading Coal & Iron Co., 111 N.E. 1075, 1077 (N.Y. 1916), “[t]oday, ‘the exercise of general jurisdiction in every [s]tate in which a corporation engages in a substantial, continuous, and systematic course of business’ would be ‘unacceptably grasping.’”  Aybar, 177 N.E.3d at 1265 (quoting Bauman, 571 U.S. at 138).  To avoid constitutional issues, Aybar reinterpreted the New York’s Long Arm statute to authorize effective service of process only in New-York-related litigation.  “[U]nder existing New York law, a foreign corporation does not consent to general jurisdiction in this state merely by complying with the Business Corporation Law’s registration provisions.”  Id. at 1266.

Aybar confirmed numerous lower court predictions of post-Bauman New York law.  The Second Circuit had twice observed that Bauman “expressly cast doubt” on old, expansive New York jurisdictional precedent.  SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 343 (2d Cir. 2018) (applying New York law); Gucci America, Inc. v. Li, 768 F.3d 122, 135 (2d Cir. 2014).  Then, in Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492 (2d Cir. 2020), it anticipated the conclusion ultimately reached in Aybar:

[I]n light of [Bauman], our own precedent, and the unanimous conclusion of the three New York intermediate courts to have considered the issue, we now hold that a foreign corporation does not consent to general personal jurisdiction in New York by merely registering to do business in the state and designating an in-state agent for service of process. . . .  We have little trouble concluding that were the New York Court of Appeals to decide the issue, it would agree that this conclusion is consistent with the U.S. Constitution and the evolving law surrounding general personal jurisdiction.

Id. at 499.  New York intermediate appellate courts had reached the same conclusion.  Okoroafor v. Emirates Airlines, 145 N.Y.S.3d 807, 808 (N.Y.A.D. June 22, 2021) (“registration to do business in New York does not constitute consent to submit to general jurisdiction”); Fekah v. Baker Hughes Inc., 110 N.Y.S.3d 1, 2 (N.Y. App. Div. 2019) (“registration to do business in New York . . . does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation’s affiliations with New York”); Best v. Guthrie Medical Group, P.C., 107 N.Y.S.3d 258, 260 (N.Y. App. Div. 2019) (neither hospital nor physician licensure constitutes consent to general jurisdiction); Aybar v. Goodyear Tire & Rubber Co., 106 N.Y.S.3d 361, 362 (N.Y. App. Div. 2019) (following A.D. Aybar decision in related case); Aybar v. Aybar, 93 N.Y.S.3d 159, 169-70 (N.Y. App. Div. 2019) (a “consent-by-registration theory” of general jurisdiction could not survive Bauman), aff’d, 2021 WL 4596367 (N.Y. Oct. 7, 2021); 126 N.E.3d 1057 (N.Y. 2019).

New York law is now firmly in the 21st Century and unequivocally rejects general jurisdiction by consent.

North Carolina

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

North Dakota

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

Ohio

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

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

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

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

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

Id. at 472.  See also Pittock v. Otis Elevator Co., 8 F.3d 325, 329 (6th Cir. 1993) (following Wainscott; plaintiffs “cannot assert personal jurisdiction over [defendant] based on consent”) (applying Ohio law); Stehle v. Venture Logistics, LLC, 2020 WL 127707, at *5 (S.D. Ohio Jan. 10, 2020) (defendant “has not consented to personal jurisdiction in this Court for this case by registering an agent for service in Ohio”; prior, contrary precedent no longer valid); Avery Dennison Corp. v. Alien Tech. Corp., 632 F. Supp. 2d 700, 711 n.7 (N.D. Ohio 2008) (“It appears that registration to do business in Ohio is simply one fact to consider in analyzing personal jurisdiction.”).  These cases indicate that the recent contrary decision in Grubb v. Day to Day Logistics, Inc., 2015 WL 4068742, at *3 (S.D. Ohio July 2, 2015), is wrongly decided and based on obsolete precedent.  Between the United States Supreme Court, the Ohio Supreme Court, and the Sixth Circuit, Ohio belongs in the anti-consent column.

Oklahoma

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

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

Oklahoma is OK.

Oregon

In Figueroa v. BNSF Railway Co., 390 P.3d 1019 (Or. 2017), the Oregon Supreme Court “conclude[d] that appointing a registered agent to receive service of process merely designates a person upon whom process may be served. It does not constitute implied consent to the jurisdiction of the Oregon courts.”  Id. at 1021-22.  See also A.B. v. Hilton Worldwide Holdings Inc., 484 F. Supp.3d 921, 932 (D. Or. 2020) (in-state agent for service of process insufficient even with doing business and in-state property to establish general jurisdiction); Lanham v. Pilot Travel Centers, LLC, 2015 WL 5167268, at *11 (D. Or. Sept. 2, 2015) (“nothing in Oregon law supports a conclusion that compliance with these statutes confers general personal jurisdiction over a nonresident defendant for conduct occurring outside Oregon”).  Another post-Bauman state high court ruling controls the issue in Oregon.

Pennsylvania

In Mallory v. Norfolk Southern Railway Co., 266 A.3d 542 (Pa. 2021), cert.granted, ___ S. Ct. ___, 2022 WL 1205835 (U.S. April 25, 2022), the court unanimously declared that the 1978 amendment (see P.L. 202, No. 53 §10(60)) to the Pennsylvania long-arm statute, 42 Pa. C.S.A. §5301, was unconstitutional under Bauman and its progeny.  Pennsylvania’s statute had uniquely specified that corporate registration conferred “general personal jurisdiction”:

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

*          *          *          *

(2) Corporations. −

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

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

(Emphasis added).

Mallory held that the Bauman line of cases precluded this “unacceptably grasping” attempt to expand general jurisdiction.  266 A.3d at 566.  The trial court, Mallory v. Norfolk Southern Railway Co., 2018 WL 3043601, at *4-5 (Pa. C.P. May 30, 2018), had “astutely recognized” that the Supreme Court had “dramatically altered” and “narrow[ed] significantly the scope of general jurisdiction in recent years.  266 A.3d at 566.

[T]o conclude that registering as a foreign corporation invokes all-purpose general jurisdiction eviscerates the Supreme Court’s general jurisdiction framework set forth in Goodyear and [Bauman] and violates federal due process by failing to comport with International Shoe’s “traditional conception of fair play and substantial justice.”  It would also be contrary to [Bauman]’s directive that a court cannot subject a foreign corporation to general all-purpose jurisdiction based exclusively on the fact that it conducts business in the forum state.

Id. at 566 (citation omitted).  Thus, Pennsylvania’s “statutory scheme fails to comport with the guarantees of the Fourteenth Amendment” and “clearly, palpably, and plainly violates the Constitution.”  Id. at 565.  “The Legislature’s grant of such broad jurisdictional authority is incompatible with the Fourteenth Amendment.  Simply stated, a statute may not require what the Constitution prohibits.”  Id. at 566.

Nor was a defendant’s registration under the statute in Mallory legitimately considered “consent” to general jurisdiction.  That claim was “contrary to the concept of federalism.”  Id. at 567.  “Pennsylvania has no legitimate interest in a controversy with no connection to the Commonwealth that was filed by a non-resident against a foreign corporation that is not at home here.”  Id.  Pennoyer-era consent cases were not to be relied on, as they had been overruled in Shaffer v. Heitner, 433 U.S. 186, 212 & n.39 (1977).  266 A.3d at 567.

[A state] may not impose conditions which require the relinquishment of constitutional rights. . . .  In accord with this jurisprudence, we hold that a foreign corporation’s registration to do business in the Commonwealth does not constitute voluntary consent to general jurisdiction but, rather, compelled submission to general jurisdiction by legislative command. . . .  The compelled submission to general jurisdiction further violates the doctrine of federalism, as the sovereignty of each state implies a limitation on the sovereignty of all its sister states.

Id. at 569 (citations and quotation marks omitted).  “[F]aced with this Hobson’s choice, a foreign corporation’s consent to general jurisdiction in Pennsylvania can hardly be characterized as voluntary, and instead is coerced.”  Id. 570 (citation and quotation marks omitted).

Accordingly, Mallory flatly “reject[ed]” the “contrary” decision in Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018).  266 A.3d at 568.  Mallory concluded:

Our statutory scheme of conditioning the privilege of doing business in the Commonwealth on the submission of the foreign corporation to general jurisdiction in Pennsylvania courts strips foreign corporations of the due process safeguards guaranteed in Goodyear and [Bauman].  Legislatively coerced consent to general jurisdiction is not voluntary consent and cannot be constitutionally sanctioned.  Accordingly, our statutory scheme is unconstitutional to the extent that it affords Pennsylvania courts general jurisdiction over foreign corporations that are not at home in the Commonwealth.

Id. at 571.

Mallory thus resolves the issue of general jurisdiction by consent in Pennsylvania state court (at least until the U.S. Supreme Court holds otherwise).  While Mallory will undoubtedly be influential, federal court litigants must (for the time being) deal with the additional quirk of the pre-Bauman decision, Bane v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991).  In Bane, the Third Circuit held that, “[b]y registering to do business in Pennsylvania, [defendant] ‘purposefully avail[ed] itself of the privilege of conducting activities within’” Pennsylvania.  Id. at 640 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).  Further, corporate registration “can be viewed as its consent to be sued” and “[c]onsent is a traditional basis for assertion of jurisdiction long upheld as constitutional.”  Id. at 641 (citations omitted).

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

Id. (citations omitted). This brief, pre-Bauman discussion has bedeviled defendants Pennsylvania federal courts.

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

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

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

A number of subsequent Pennsylvania decisions have parroted the rationales in Bane and Bors although they differ in some details.  Data v. A.O. Smith Corp., 2021 WL 1115876, at *2 (W.D. Pa. March 24, 2021) (following Bane); Replica Auto Body Panels & Auto Sales Inc. v. inTech Trailers Inc., 454 F. Supp.3d 458, 464 (M.D. Pa. 2020) (reluctantly following Bane); Kraus v. Alcatel-Lucent, 441 F. Supp.3d 68, 74-75 (E.D. Pa. 2020) (following Bane); Tupitza v. Texas Roadhouse Management Corp., 2020 WL 7586889, at *1 (W.D. Pa. Dec. 17, 2020) (same); Weigold v. Ford Motor Co., 2020 U.S. Dist. Lexis 164231, at *2-3 (E.D. Pa. Sept. 9, 2020) (following Kraus); Diab v. British Airways, 2020 WL 6870607, at *5 (E.D. Pa. Nov. 23, 2020) (following Bane); Winters v. Akzo Nobel Surface Chemistry, LLC, 2020 WL 2474428, at *4 (E.D. Pa. May 13, 2020) (following Bane); Smith v. NMC Wollard, Inc., 2020 WL 1975074, at *4 (E.D. Pa. April, 24, 2020) (same); Berk v. Equifax, Inc., 2020 WL 868128, at *3-4 (E.D. Pa. Feb. 21, 2020) (reluctantly following Bane; transferring case); Behrens v. Arconic, Inc., 429 F. Supp.3d 43, 55 (E.D. Pa. 2019) (same judge as in Youse); Sciortino v. Jarden, Inc., 395 F. Supp.3d 429, 437-38 (E.D. Pa. 2019) (extending Bane to prior acts); Healthcare Services Group., Inc. v. Moreta, 2019 WL 6117353, at *5-6 (E.D. Pa. Nov. 15, 2019) (following Bane); Rehman v. Etihad Airways, 2019 WL 12095413, at *4-5 (Mag. M.D. Pa. Nov. 14, 2019) (same), adopted, 2021 WL 780302 (M.D. Pa. March 1, 2021); Williams v. Takeda Pharmaceuticals America, Inc., 2019 WL 2615947, at *3 (E.D. Pa. June 26, 2019) (same); Aetna, Inc. v. Kurtzman Carson Consultants, LLC, 2019 WL 1440046, at *4-6 (E.D. Pa. March 29, 2019) (same); Youse v. Johnson & Johnson, 2019 WL 233884, at *3-4 (E.D. Pa. Jan. 16, 2019) (following Bane/Bors); Gorton v. Air & Liquid Systems Corp., 303 F. Supp.3d 278, 295-99 (M.D. Pa. 2018) (following Bane/Bors notice analysis of §5301(a); consent only applicable after 1978 amendment); Shipman v. Aquatherm L.P., 2018 WL 6300478, at *2 (E.D. Pa. Nov. 28, 2018) (following Bane/Bors); Aetna Inc., v. Mednax, Inc., 2018 WL 5264310, at *5 (E.D. Pa. Oct. 23, 2018) (same); Mendoza v. Electrolux Home Products, Inc., 2018 WL 3973184, at *3-4 (M.D. Pa. Aug. 20, 2018) (same); Allstate Insurance Co. v. Electrolux Home Products, Inc., 2018 WL 3707377, at *4-5 (E.D. Pa. Aug. 3, 2018) (same); Pager v. Metropolitan Edison, 2018 WL 491014, at *2 (M.D. Pa. Jan. 19, 2018) (citing Bane); Mendoza v. Electrolux Home Products, Inc., 2017 WL 5010352, at *5 (E.D. Cal. Nov. 2, 2017) (following Bors; transferring case) (applying Pennsylvania law); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147, at *10-11 (E.D. Pa. July 24, 2017) (citing Bane/Bors); Hegna v. Smitty’s Supply, Inc., 2017 WL 2563231, at *3 (E.D. Pa. June 13, 2017) (same); Kukich v. Electrolux Home Products, Inc., 2017 WL 345856, at *6 (D. Md. Jan. 24, 2017) (following Bors) (applying Pennsylvania law).  All these cases are now questionable, given the Pennsylvania Supreme Court’s decision in Mallory, but federal courts need not follow Mallory on this federal constitutional issue.

However, the better reasoned federal decisions track Mallory rather than Bane.  In re Asbestos Products Liability Litigation (No. VI), 384 F. Supp.3d 532 (E.D. Pa. 2019) (“Sullivan”), rejected general jurisdiction by consent under Bane, as discussed in detail here.  Like Mallory, it declared the statutory “general” jurisdiction language in 42 Pa. C.S.A. §5301 unconstitutional.  “[A] mandatory statutory regime purporting to confer consent to general jurisdiction in exchange for the ability to legally do business in a state is contrary to the rule in [Bauman] and, therefore, can no longer stand.”  384 F. Supp.3d at 534 (footnote omitted).

[T]he Pa. Statutory Scheme allows Pennsylvania to impermissibly extract consent at a cost of the surrender of a constitutional right.  Absent voluntary consent, [Bauman] teaches that a corporation is only subject to general jurisdiction where it is “at home.”  The Pa. Statutory Scheme impermissibly re-opens the door to nation-wide general jurisdiction that [Bauman] firmly closed.  Therefore, the Court concludes that the Pa. Statutory Scheme violates the Due Process Clause and is unconstitutional.

Sullivan, 384 F. Supp.3d at 543.  Sullivan recognized that all of the adverse federal district court precedent, relied on the pre-Bauman Third Circuit decision in Bane.  But Bauman “effectively disassembled the legal scaffolding upon which Bane was based.”  Id.

[T]he result obtained under Bane (general personal jurisdiction over a foreign corporation by statutory consent) cannot stand under the new constitutional standard adopted in [Bauman] (general personal jurisdiction only where the foreign corporation is at home).  Thus, this Court is bound to apply the new [Bauman] standard not withstanding previous circuit law.

Id. at 545.

Ruffing v. Wipro Ltd., 529 F. Supp.3d 359 (E.D. Pa. 2021), agreed with Sullivan that Pennsylvania’s statutory general jurisdiction by consent regime could not survive Due Process after Bauman.  Given Bauman, Ruffing concluded that “[a] seismic change has taken place in the world of personal jurisdiction in the thirty years since Bane was decided.”  529 F. Supp.3d at 366.  For a state to exercise general jurisdiction over a corporation, the company must satisfy Bauman’s “at home” with the “sole exception” being the virtually unattainable “extraordinary case.”  Id.  Under Third Circuit precedent, “when the Supreme Court replaces a constitutional standard under which a previous decision was rendered, ‘decisions reached under the old standard are not binding.’”  Id. at 367 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 697-98 (3d Cir. 1991), aff’d in part and rev’d in part on other grounds, 505 U.S. 833 (1992)).

Finding Sullivan “persuasive,” Ruffing held:

As the standard for determining general personal jurisdiction has changed since Bane was decided, we agree that Bane is no longer binding on this court.  [Bauman], it is true, did not deal with the issue of a state “consent” statute such as exists in Pennsylvania. Nonetheless, in our view the validity of such a statute would totally undermine [Bauman]. The Supreme Courtt’s decision limiting general personal jurisdiction would become virtually meaningless if a state can mandate the exercise of general personal jurisdiction over every entity doing business within its borders simply because the entity has registered to do business there. . . .  Requiring an entity to choose between being subject to unlimited general personal jurisdiction or not doing business in a state is simply not a voluntary choice and is inconsistent with due process.

529 F. Supp.3d at 367-68 (citations omitted).  The district courts in both Sullivan and Ruffing allowed interlocutory appeals so that the Third Circuit could reconsider Bane, however, the plaintiff in Sullivan declined to file an appeal, and the plaintiff in Ruffing settled before briefing in the Third Circuit was complete.

Several other post-Bauman courts have also rejected the proposition that mere registration to do business in Pennsylvania can be a sufficient basis for general jurisdiction – a number that should grow rapidly after Mallory.  In Seeley v. Caesars Entertainment Corp., 206 A.3d 1129 (Pa. Super. 2019), the court affirmed the defendant’s dismissal, despite one defendant being “a registered business in Pennsylvania.”  Seeley rejected the plaintiff’s consent argument because “Defendants have clearly not consented to being sued in Pennsylvania, as is evident from their filing of preliminary objections on the basis of lack of personal jurisdiction.”  Id. at 1133 n.9.  Other courts rejecting jurisdiction by consent under Pennsylvania law are: Metro Container Group v. AC&T Co., 2021 WL 5804374, at *6 (E.D. Pa. Dec. 7, 2021) (“The Bane reasoning directly contradicts [Bauman]. Thus, ‘this Court is bound to apply the new [Bauman] standard notwithstanding previous circuit law.’”) (quoting Sullivan, 384 F. Supp.3d at 545); Reynolds v. Turning Point Holding Co., 2020 WL 953279, at *4-5 (E.D. Pa. Feb. 26, 2020) (“agree[ing] with and adopt[ing]” Sullivan); Fend v. Allen-Bradley Co., 2019 WL 6242119, at *1 n.1 (E.D. Pa. Nov. 20, 2019) (same judge as Sullivan); Antonini v. Ford Motor Co., 2017 WL 3633287, at *2 n.2 (M.D. Pa. Aug. 23, 2017) (“regist[ration] to do business in Pennsylvania” among other contacts, was “insufficient to establish general jurisdiction” in Pennsylvania); McCaffrey v. Windsor at Windermere Ltd. Partnership, 2017 WL 1862326, at *4 (E.D. Pa. May 8, 2017) (Pennsylvania corporate registration did not show “contacts with Pennsylvania [that] are so continuous and systematic as to render them essentially at home”) (citation and quotation marks omitted); Spear v. Marriott Hotel Services, Inc., 2016 WL 194071, at *2 (E.D. Pa. Jan. 15, 2016) (no general personal jurisdiction based “solely on the fact that defendants are registered to do business” in Pennsylvania); Osadchuk v. CitiMortgage, 2015 WL 4770813, at *2 (E.D. Pa. Aug. 12, 2015) (registered agent in Pennsylvania not enough for general jurisdiction).  Cf. Deardorff v. Cellular Sales of Knoxville, Inc., 2020 WL 5017522, at *5 (E.D. Pa. Aug. 25, 2020) (“registration of the fictitious name” is not registration to do business and does not constitute consent to personal jurisdiction); George v. A.W. Chesterton Co., 2016 WL 4945331, at *2-3 (W.D. Pa. Sept. 16, 2016) (general jurisdiction not created, even under Bane, by registration after an alleged injury).

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

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

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

By interpreting §5301(a) to merge “qualification” with “consent,” so as to transgress federal Due Process standards, post-Bauman Pennsylvania decisions treating corporate registration is ipso facto “consent” to general jurisdiction violates the “presumption” that “the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.”  1 Pa. C.S.A. §1922(3).  These decisions also ignore the express terms of the Long Arm Statute that preclude exercise of personal jurisdiction beyond what is permitted by “the Constitution of that United States.”  42 Pa. C.S.A. §§5307, 5308, 5322(b).  We think that, even in federal court, Mallory’s construction of §5301, a Pennsylvania statute, should be authoritative, and not merely persuasive.  On the constitutional issue, itself, Mallory in the Supreme Court will decide.

Puerto Rico

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

Rhode Island

Although no state court has directly adjudicated general jurisdiction by consent, in Martins v. Bridgestone Americas Tire Operations, LLC, 2018 WL 1341662 (R.I. Super. March 8, 2018), the court characterized the in-state contacts of three Rhode Island-registered corporate defendants as “merely incidental, and not central, to its primary business as required” by Bauman and refused to find general jurisdiction.  Id. at *7.

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

South Carolina

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

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

Yarborough & Co. v. Schoolfield Furniture Industries, Inc., 268 S.E.2d 42, 44 (S.C. 1980) (applying S.C. Code §36-2-803).  In 2020 the Fourth Circuit reaffirmed Ratliff.

Ratliff seems to have implicitly concluded that the Pennsylvania Fire line of cases had been superseded by International Shoe’s minimum-contacts approach to personal jurisdiction. . . .  Moreover, we find it difficult to reconcile the Pennsylvania Fire approach with the modern view of general jurisdiction expressed in the Supreme Court’s recent cases.  Given the number of states that subject foreign corporations to domestication requirements, foreign corporations would likely be subject to general jurisdiction in every state where they operate — a result directly at odds with the views expressed by the Court in [Bauman].

Fidrych v. Marriott International, Inc., 952 F.3d 124, 136 (4th Cir. 2020) (citations omitted).

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); Ruff v. Strategic Contract Brands, Inc., 2016 WL 4266313, at *5 n.2 (D.S.C. Aug. 12, 2016) (“agree[ing] with Defendant that registering as a corporation in South Carolina, in and of itself, does not necessarily establish personal jurisdiction”) (following Ratliff); Staats v. WJH LLC, 2019 S.C. C.P. Lexis 8933, at *7 (S.C.C.P. Nov. 12, 2019) (“In South Carolina, the threshold of contacts necessary to meet this standard is . . . substantial, and significantly higher than [plaintiff’s] singular legal conclusion that [defendant] is alleged to be ‘. . .  maintain[ing] a registered agent’ in South Carolina.”); Gabrish v. Strickland Marine Agency, Inc., 2005 WL 5168410 (S.C. Dist. Dec. 2, 2005) (following Ratliff).  Rock solid.

South Dakota

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

Tennessee

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

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

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

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

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

Texas

Both state and federal Texas appellate courts have ruled that registration to do business does not amount to consent to jurisdiction.  Before Bauman, Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405 (Tex. App. 1997), held that, “[b]y registering to do business, a foreign corporation only potentially subjects itself to jurisdiction.”  Id. at 416 (emphasis original).  Thus, “registering to do business in Texas and maintaining a registered agent in Texas . . . are not dispositive of whether Texas courts can constitutionally exercise general jurisdiction.”  Waterman Steamship Corp. v. Ruiz, 355 S.W.3d 387, 418 (Tex. App. 2011).  Accord Devon Energy Corp. v. Moreno, 2022 WL 547641 (Tex. App. Feb. 24, 2022) (corporate registration “is not dispositive of whether Texas courts can constitutionally exercise general jurisdiction”); Asshauer v. Glimcher Realty Trust, 228 S.W.3d 922, 933 (Tex. App. 2007) (quoting Conner); Juarez v. United Parcel Service de Mexico S.A. de C.V., 933 S.W.2d 281, 284-85 (Tex. App. 1996) (“the designation of an agent for service of process, without more, does not satisfy due process requirements for the exercise of general jurisdiction”); FedEx Corp. v. Contreras, 2020 WL 4808721, at *8 (Tex. App. Aug. 19, 2020) (“we join our sister courts in declining to hold that a corporation automatically subjects itself to general jurisdiction in Texas by registering to do business or appointing an agent for service of process here”); Golden Peanut Co., LLC v. Give & Go Prepared Foods Corp., 2019 WL 2098473, at *6 (Tex. App. May 14, 2019) (following Asshauer); EnerQuest Oil & Gas, L.L.C. v. Antero Resources Corp., 2019 WL 1583921, at *5 (Tex. App. April 11, 2019) (“undisputed facts that [defendant] is registered to do business in Texas and conducts some business in Texas are not on their own enough to establish personal jurisdiction when they have no connection to [plaintiff’s] causes of action”); Ford Motor Co. v. Cejas, 2018 WL 1003791, at *7-10 (Tex. App. Feb. 22, 2018) (plaintiffs “have not alleged jurisdictional facts to support the trial court’s finding that [defendants’] affiliations with Texas are so ‘continuous and systematic’ as to render [them] essentially at home’ in Texas”; both defendants alleged to have Texas registered agents, among numerous other in-state contacts); Salgado v. OmniSource Corp., 2017 WL 4508085, at *5 (Tex. App. Oct. 10, 2017) (a registered agent “without evidence of substantial business relations or other contacts, is not enough to subject a nonresident defendant to general jurisdiction”) (citation omitted); Northern Frac Proppants, II, LLC v. 2011 NF Holdings, LLC, 2017 WL 3275896, at *16 (Tex. App. July 27, 2017) (“general jurisdiction . . . not established by showing that foreign business entities . . . were registered to do business” and “had registered agents for service of process”).  The Fifth Circuit, applying Texas law, weighed in with Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179, 183 (5th Cir. 1992) (“the mere act of registering an agent . . . does not act as consent to be hauled into Texas courts on any dispute with any party anywhere concerning any matter”). In Texas, “[t]he lines drawn by [Bauman] appear to act as absolute hard boundaries in the general jurisdiction context.”  Michelin North America, Inc. v. DeSantiago, 584 S.W.3d 114, 126 (Tex. App. 2018), review dismissed (Tex. Dec. 21, 2018).

Numerous district courts agree.  Rawls v. Old Republic General Insurance Group, Inc., 489 F. Supp.3d 646, 660 (S.D. Tex. 2020) (“[T]he fact that [defendant] is registered to do business and maintains a registered agent for service of process in Texas” does not confer general jurisdiction); Matthews v. United HealthCare Services, Inc., 2020 WL 5411698, at *3 (N.D. Tex. Sept. 9, 2020) (in-state agent for service of process “insufficient” to establish general jurisdiction); Med Tech., Inc. v. Teleflex, Inc., 2020 WL 2106354, at *4 (Mag. N.D. Tex. April 13, 2020) (“[T]he mere fact that [defendants] are registered in Texas is not, in and of itself, sufficient to confer jurisdiction.”), adopted, 2020 WL 2104174 (N.D. Tex. May 1, 2020); Wartsila North America, Inc. v. International Center for Dispute Resolution, 387 F. Supp.3d 715, 730-31 (S.D. Tex. 2018) (“‘doing business’ and being ‘at home’ are not similar standards”; being “licensed in Texas,” along with other in-state contacts, “are not sufficient for the exercise of general jurisdiction under [Bauman]”; declining to follow Bors (see Pennsylvania)); Cunningham v. Nationwide Security Solutions, Inc., 2018 WL 4575005, at *12 (Mag. N.D. Tex. Aug. 31, 2018) (registration to do business does “not show that the Court has general jurisdiction”), adopted, 2018 WL 4568803 (N.D. Tex. Sept. 24, 2018); Griffin v. Ford Motor Co., 2017 WL 3841890, at *2 n.1 (W.D. Tex. Sept. 1, 2017) (“the existence of a registered agent, standing alone, is not sufficient to establish jurisdiction”); Agribusiness United DMCC v. Blue Water Shipping Co., 2017 WL 1354144, at *5-6 (S.D. Tex. April 13, 2017) (“while having a registered agent in Texas may reflect the reasonable anticipation of being haled into court in this forum related to activities in the state, it does not reflect an expectation of being haled into court for activities unrelated to Defendant’s contacts with Texas”); Axxess Technology Solutions Inc. v. Epic Systems Corp., 2017 WL 3841604, at *2 (N.D. Tex. Jan. 23, 2017) (allegation that defendant “registered to do business in Texas” insufficient to establish general jurisdiction); Clasen v. National Board of Osteopathic Medical Examiners, Inc., 2015 WL 9489507, at *4 (Mag. E.D. Tex. Dec. 30, 2015) (“although [defendant] has a registered agent in Texas, this alone does not establish general jurisdiction”), adopted, 2016 WL 890675 (E.D. Tex. March 9, 2016); ADT, LLC v. Capital Connect, Inc., 2015 WL 7352199, at *5 (N.D. Tex. Nov. 20, 2015) (following Wenche); Hazim v. Schiel & Denver Publishing Ltd., 2015 WL 5227955, at *4 (S.D. Tex. Sept. 8, 2015) (“effecting service in the forum State on a registered corporate agent is not enough to show personal jurisdiction over the nonresident corporation”), aff’d on other grounds, 647 F. Appx. 455 (5th Cir. 2016); Fiduciary Network, LLC v. Buehler, 2015 WL 2165953, at *5-6 (N.D. Tex. May 8, 2015) (consent through “registration of an agent for process and registration to do business” will not suffice for general jurisdiction); Haskett v. Continental Land Resources, LLC, 2015 WL 1419731, at *6 (S.D. Tex. March 27, 2015) (“registering as a foreign entity in a state, [and] nominating a registered agent for service of process . . . do not establish . . . general jurisdiction”), aff’d in part, vacated in part on other grounds, 668 F. Appx. 133 (5th Cir. 2016); Transverse, LLC v. Info Directions, Inc., 2013 WL 3146838, at *5 (Mag. W.D. Tex. June 17, 2013) (“Courts have consistently held that the appointment of an agent of process alone does not suffice to allow for the exercise of general jurisdiction.”), adopted, 2013 WL 12133970 (W.D. Tex. Aug. 30, 2013); 800 Adept, Inc. v. Enterprise Rent-A-Car, Co., 545 F. Supp.2d 562, 569 n.1 (E.D. Tex. 2008) (“A party does not consent to personal jurisdiction merely by complying with a state’s registration statutes or appointing an agent for service of process.”); Goodman v. Whole Foods Market, Inc., 2006 WL 8432867, at *6 (W.D. Tex. Sept. 26, 2006) (“That [defendant] was still registered to do business in Texas at the time [plaintiff] sustained his alleged injuries and at the time suit was filed is not dispositive of the general jurisdiction issue.”); Arkwright Mutual Insurance Co. v. Transportes de Nuevo Laredo, 879 F. Supp. 699, 700-01 (S.D. Tex. 1994) (Texas certificate to do business does not establish general jurisdiction); Leonard v. USA Petroleum Corp., 829 F. Supp. 882, 889 (S.D. Tex. 1993) (“A foreign corporation must have contact, other than mere compliance with Texas domestication requirements, to be subject to personal jurisdiction in Texas.”).  Cf. Johnston v. Multidata Systems International Corp., 523 F.3d 602, 614 (5th Cir. 2008) (“Never before have we held that licenses to do work can create general jurisdiction.”) (applying Texas law); National Casualty Co. v. KT2 LLC, 2020 WL 5544152, at *3 (N.D. Tex. Sept. 16, 2020) (trucking company’s federal Motor Vehicle Act registration not consent to general jurisdiction).  But see Del Castillo v. PMI Holdings North America, Inc., 2015 WL 3833447, at *3-4 (S.D. Tex. June 22, 2015) (allowing general jurisdiction based on registration and agent for service of process).  Texas doesn’t put up with this general jurisdiction by consent nonsense.

Utah

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

Vermont

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

Virginia

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

Finally, while distinguishing subpoena power and personal jurisdiction, and addressing only the former, the Virginia Supreme Court held, shortly after Daimler, that subpoena “power was not conferred upon the circuit court by [defendant’s] act in registering to conduct business in Virginia or designating a registered agent for service of process.”  Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440, 446 (Va. 2015).

We think Virginia will follow the majority rule.

Virgin Islands

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

Washington

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

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

West Virginia

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

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

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

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

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

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

Javage v. General Motors, LLC, 2017 WL 6403036, at *1 (N.D.W. Va. Aug. 18, 2017) (simultaneous discussion of specific jurisdiction omitted), aff’d, 736 F. Appx. 418 (4th Cir. 2018) (affirming “for the reasons stated by the district court”).  See also Weirton Area Water Board v. 3M Co., 2020 WL 8184970, at *3 (N.D.W. Va. Nov. 20, 2020) (“that defendant . . . is registered to do business in West Virginia does nothing to establish the state as its ‘home’ for jurisdictional purposes”); Weirton Area Water Board v. 3M Co., 2020 WL 8184654, at *4 (N.D.W. Va. Nov. 20, 2020) (same); Weirton Area Water Board v. 3M Co., 2020 WL 8184653, at *4 (N.D.W. Va. Nov. 20, 2020) (same); Weirton Area Water Board v. 3M Co., 2020 WL 8184442, at *3 (N.D.W. Va. Nov. 20, 2020) (that defendant “is specifically registered to do business in West Virginia is not sufficient for this Court to have general personal jurisdiction”); Brighter Sky Products, LLC v. Marriott International, Inc., 2018 WL 2248601, at *5 (S.D.W. Va. May 16, 2018) (following Ratliff (see South Carolina) and holding that “maintain[ing] an agent for service of process,” among other contacts “insufficient to subject a corporate entity to general jurisdiction”).

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

Wisconsin

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

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

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

Wyoming

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

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

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

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