Photo of Bexis

JAMES M. BECK is Counsel resident in the Philadelphia office of ReedSmith. He is the author of, among other things, Drug and Medical Device Product Liability Handbook (2004) (with Anthony Vale). He wrote the seminal law review article on off-label use cited by the Supreme Court in Buckman v. Plaintiffs Legal Committee. He has written more amicus briefs for the Product Liability Advisory Council than anyone else in the history of the organization, and in 2011 won PLAC's highest honor, the John P. Raleigh award. He has been a member of the American Law Institute (ALI) since 2005. He is the long-time editor of the newsletter of the ABA's Mass Torts Committee.  He is vice chair of the Class Actions and Multi-Plaintiff Litigation SLG of DRI's Drug and Device Committee.  He can be reached at  His LiinkedIn page is here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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


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

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

*          *          *          *

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

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

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


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


The California Supreme Court’s now-reversed BMS decision also shot down, under Bauman, corporate registration as a basis for general personal jurisdiction (not at issue in the United States Supreme Court).  “[A] corporation’s appointment of an agent for service of process, when required by state law, cannot compel its surrender to general jurisdiction for disputes unrelated to its California transactions.”  Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 884 (Cal. 2016), reversed on other grounds, 137 S. Ct. 1773 (2017).  See also Thomson v. Anderson, 6 Cal. Rptr.3d 262, 269 (Cal. App. 2003) (rejecting corporate registration as a separate basis for personal jurisdiction); DVI, Inc. v. Superior Court, 128 Cal. Rptr.2d 683, 694 (Cal. App. 2002) (“designation of an agent for service of process and qualification to do business in California alone are insufficient to permit general jurisdiction”); Gray Line Tours v. Reynolds Electrical & Engineering Co., 238 Cal. Rptr. 419, 421 (Cal. App. 1987) (“it cannot be said [defendant] consented to the exercise of jurisdiction for all purposes when it appointed” an agent for service of process); Am Trust v. UBS AG, 681 F. Appx. 587, 589 (9th Cir. 2017) (“consent to general personal jurisdiction” not created by registering to do business) (applying California law); 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.


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

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


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

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

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

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

Id. at 640.

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


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

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

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

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

Id. at 143 (footnotes omitted).

Cepec construed Delaware’s registration statute “as requiring a foreign corporation to allow service of process to be made upon it in a convenient way in proper cases, but not as a consent to general jurisdiction,” in accordance with Bauman and “common sense.”  Id. at 142-43 . See AstraZeneca AB v. Mylan Pharmaceuticals, Inc., 72 F. Supp. 3d 549, 556 (D. Del. 2014) (“In light of the holding in [Bauman], the court finds that [defendant’s] compliance with Delaware’s registration statutes − mandatory for doing business within the state − cannot constitute consent to jurisdiction.”), aff’d on other grounds, 817 F.3d 755 (Fed. Cir. 2016).  Cepec thus eliminated the contrary jurisdictional decision in Acorda Therapeutics, Inc. v. Mylan 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 Freedman v. Suntrust Banks, Inc., 139 F. Supp.3d 271, 279-80 (D.D.C. 2015) (general jurisdiction based on registration and agent for service of process “explicitly foreclose[d]” by Bauman because it would subject defendant to jurisdiction in multiple fora; prior precedent no longer valid); Kuennen v. Stryker Corp., 2013 WL 5873277, at *4 (W.D. Va. Oct. 30, 2013) (a defendant’s “business certificate and appointed agent . . . are not independent support for general jurisdiction − the principles of due process require a firmer foundation than mere compliance with state domestication statutes”) (applying District of Columbia law).  Under a prior statute, In re FTC Corp. Patterns Report Litigation, 432 F. Supp. 274, 286 (D.D.C. 1977), allowed mere service on a registered agent to invoke general jurisdiction, although modern terminology was not used.  Under the current D.C. statute, that can’t happen, and the District rejects general jurisdiction by consent.


Since Bauman, Florida district courts of appeals have twice rejected general jurisdiction by consent.  Woodruff-Sawyer & Co. v. Ghilotti, 255 So.3d 423 (Fla. App. Aug. 29, 2018), held that general jurisdiction is “not appropriate” under Bauman “without more” than corporate registration and agent for service of process.  Id. at 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); 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., 2017 WL 3333120, at *10 (M.D. Fla. July 21, 2017) (being “registered to do business here . . . alone is insufficient to confer jurisdiction”); PHD@Western, LLC v. Rudolf Construction Partners, LLC, 2016 WL 5661637, at *4 (S.D. Fla. Sept. 30, 2016) (“merely registering to do business in a state is not a sufficient basis to establish the minimum contacts necessary for a court to obtain personal jurisdiction over a non-resident defendant”); Erwin v. Ford Motor Co., 2016 WL 7655398, at *12 (M.D. Fla. Aug. 31, 2016) (consent through registration does not warrant “exercise of jurisdiction [because it fails to] . . . satisfy the Due Process Clause”); Evans v. Andy & Evan Industries, Inc., 2016 WL 8787062, at *3 (S.D. Fla. July 15, 2016) (registration to do business, even with other contacts, insufficient to support general jurisdiction); Royal Acquisitions 001, LLC v. Ansur America Insurance Co., 2015 WL 1437689, at *4 (S.D. Fla. March 27, 2015) (registration to do business and appointment of a registered agent “are not so continuous and systematic as to render Defendant essentially at home”); Recao v. Bell Helicopter Textron, Inc., 2014 WL 12595302, at *4 (S.D. Fla. Sept. 23, 2014) (rejecting both registration and agent for service as basis for general jurisdiction); Mio, LLC v. Valentino’s, Inc., 2013 WL 3364392, at *6 (M.D. Fla. July 3, 2013) (an “agent to accept service of process . . ., standing alone, does not meet the general jurisdiction requirement”); Keston v. FirstCollect, Inc., 523 F. Supp.2d 1348, 1354 (S.D. Fla. Oct. 31, 2007) (“presence of a corporate agent within the State, service on that agent, and a license to do business in the State are not enough to support my personal jurisdiction . . . where the cause of action is not related to these contacts”); In re Farmland Industries, Inc., 2007 WL 7694308, at *12 (M.D. Fla. March 30, 2007) (“agree[ing] with those cases holding that registering to do business and appointing a registered agent in the state of Florida, without more, does not subject a foreign corporation to the general personal jurisdiction of the state for any and all unrelated actions”); Sofrar, S.A. v. Graham Engineering Corp., 35 F. Supp.2d 919, 919 (S.D. Fla. 1999) (“personal jurisdiction over a corporate defendant cannot be found on the basis of a defendant’s registration to do business in the state and designation of a corporate agent alone”).  Florida looks solid.


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

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

Id. at *3.

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


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

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

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


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


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

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

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

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


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


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


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


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


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


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


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


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


The Michigan Supreme Court held decades ago that:

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

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


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

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


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


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

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

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

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

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


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

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

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

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

Id. at 8-9 (citations omitted).

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


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


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

New Hampshire

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

New Jersey

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

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

*          *          *          *

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

Id. at 444-46 (citations omitted).

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

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

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

New Mexico

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

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

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

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

New York

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

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

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

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

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

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

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

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

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

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

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

North Carolina

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

North Dakota

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


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

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

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

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

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

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


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

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

Oklahoma is OK.


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


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

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

*          *          *          *

(2) Corporations. −

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

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

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

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

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

Id. (citations omitted).

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

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

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

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

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

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

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

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

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

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

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

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

Recently, in Murray v. American Lafrance, LLC, a product liability decision, formerly at 2018 WL 4571804, that had followed Bane/Bors drew a spirited dissent, and rehearing en banc has since been granted.  See Murray v. American Lafrance, LLC, 2018 Pa. Super. Lexis 1320 (Pa. Super. Dec. 7, 2018).  Thus the personal jurisdiction by consent is a long way from being definitively decided in Pennsylvania.  Ultimately, we believe Pennsylvania will cease to adhere to general jurisdiction by consent, although perhaps not without another United States Supreme Court public flogging.  The jurisdictional constraints addressed in Bauman, after all, are based on the Due Process protections of the federal constitution, and those simply cannot be overridden by a mere state statute.  But for now, Pennsylvania is perhaps the leading practitioner of general jurisdiction by consent.

Puerto Rico

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

Rhode Island

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

South Carolina

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

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

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

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

South Dakota

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


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

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

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

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

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


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

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


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


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


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

Virgin Islands

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


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

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

West Virginia

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

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

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

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

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

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

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

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


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

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

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


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

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

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

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

Some of your favorite Drug and Device Law bloggers will be presenting at Reed Smith’s Life Sciences CLE Day, which will be presented live in Reed Smith’s Philadelphia office and via videoconference to our Pittsburgh office on Thursday, November 15. This is a free, full-day CLE program designed for in-house counsel at life sciences companies.

Bexis will be covering “Key Issues Currently Before the Supreme Court and Other Supremely Interesting Cases,” discussing cases teed up for the current Supreme Court term that could have significant implications for preemption in prescription drug cases, class action strike suits, and even basic product liability law.

Steve McConnell and Rachel Weil will be discussing “Games People Play: Decision Points in MDLs,” which will examine recent trends in multidistrict litigation, particularly in life sciences and product liability cases. The focus will be on strategies for being in the right court, reasonably cabining the scope of discovery, facilitating federal-state and joint defense cooperation, and avoiding adverse trial scenarios.

In between, some of our Reed Smith colleagues will discuss:

  • Ethics “do’s and don’t’s” in-house counsel can learn from some real stories of questionable ethics and sanctionable conduct
  • The recent N.J. Supreme Court decision where the Court unanimously upgraded the state’s standards for admission of expert testimony, and wider discussion around expert testimony
  • Health tech developments affecting drug and device companies
  • Unexpected issues that are arising for life sciences and health companies in a post-GDPR world, despite companies’ careful preparedness for GDPR implementation
  • Key State AG enforcement activities relevant for life sciences companies, and likely new trends in this area
  • Pharmaceutical pricing and contracting compliance and the potential impact of the Trump administration’s “Blueprint” to address concerns over pricing

The good people at Reed Smith are also providing a networking breakfast and lunch, with a reception immediately following the CLE day in Philadelphia.

This program is presumptively approved for 5.0 general CLE credit and 1.0 Ethics credit in Pennsylvania, California, Texas and Florida. The program is also approved for 6.0 general CLE credit and 1.0 Ethics credit in New Jersey. It is presumptively approved for 5.0 general CLE credit and 1.0 Ethics credit under New York’s approved jurisdiction policy. Applications for general and Ethics CLE are pending in Delaware, Illinois, and West Virginia.

Interested? You can register here. (Please note that space is limited.)

An unexpected bit of good news as we go into November. Bexis will be presenting at the Reed Smith annual client CLE program on big-deal pending cases.  In preparation, he took a look at the SCOTUSBlog page for Merck Sharp & Dohme Corp. v. Albrecht, No 17-290 (that’s the Supreme Court name for In re Fosamax in the Third Circuit).  There’s a new entry from last Friday: “Justice Alito is no longer recused in this case.”  See also, from the Supreme Court’s official docket:

Oct 26 2018 Justice Alito is no longer recused in this case.

That’s good news for our side, because as we mentioned at the time certiorari was accepted:

We do note one unfortunate aspect of the order granting review: “Justice Alito took no part in the consideration or decision of this petition.” Since Justice Alito has historically supported preemption – he wrote the dissent in Wyeth v. Levine, 555 U.S. 555 (2009) – that means we’re short a vote.

Not any more. Our understanding, based on something we heard several years ago, is that Justice Alito at one time held stock in Merck. Evidently not any longer. While we’re not counting our chickens in Albrecht before they’ve hatched, we’re not playing a man short any longer, either. So we like our side’s chances in Albrecht even better now.

For more of our Albrecht/Fosamax coverage see here, here, here, and here.

Private plaintiffs love to scream “fraud on the FDA”!  Agency fraud is their magic potion for dissolving any FDA action that they don’t like.  Just assert that the FDA was bamboozled and invite some jury somewhere to ignore what the FDA actually did.  Unfortunately for the other side, Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), precludes private plaintiffs from bringing such allegations bases on state tort law.  The FDCA is quite clear, in 21 U.S.C. §337(a), that only the government – not private plaintiffs – may seek to enforce the Act.

In Buckman, the Court held (unanimously), first, that “fraud-on-the-FDA claims inevitably conflict with the FDA’s responsibility to police fraud consistently with the Administration’s judgment and objectives.”  Id. at 350.  That’s rather obvious, because the logic of any agency fraud claim is that “fraud” allows a factfinder to conclude that, if not defrauded, the agency wouldn’t have done what it did.  That presents a rather raw conflict with whatever the agency actually did, which (unless revoked by the affected agency) is a federal decision presumably still in effect.

Second, in the context of the FDCA specifically, the Court recognized that Congress did not want private individuals running around purporting to enforce any of the many requirements imposed by the FDA under the Act.  That’s the §337(a) aspect:  “The FDCA leaves no doubt that it is the Federal Government rather than private litigants who are authorized to file suit for noncompliance with the medical device provisions:  ‘[A]ll such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.’”  531 U.S. at 349 n.4 (quoting §337(a)). “[W]e have clear evidence that Congress intended that the MDA be enforced exclusively by the Federal Government.”  Id. at 352 (again citing §337(a)).

But Buckman involved only state-law claims and thus preemption was easily invoked to prevent both the inherent conflict and the private enforcement problems identified by the Court.  So Buckman does not directly prohibit private litigants from using a federal statute to assert purported fraud-on-the-FDA claims.  One federal statute does not preempt another.  POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, ___, 134 S. Ct. 2228, 2236 (2014) (“the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute” “is not a pre-emption case”).  There are at least four types of federal statutes that we expect plaintiffs to use to attempt private enforcement of fraud-on-the-FDA claims:  the False Claims Act (“FCA”), the Lanham Act, RICO, and antitrust statutes.  Most of the action, particularly recently, has involved the FCA.

There are other types of wanna-be private FDCA enforcement than fraud on the FDA – that’s what POM Wonderful was about (FDA-permitted food labels that allegedly deceived the public, not the FDA) – but we’re more interested in Buckman than anything else, so we wanted to see how fraud-on-the-FDA claims specifically have fared, when asserted under these other federal statutes.

Most recently, in a FCA decision that we discussed here, the First Circuit rejected allegations that were little different, substantively, from those that had produced Buckman itself.  Plaintiff alleged that the defendant “made a series of false statements to the FDA . . ., but for which the FDA would not have approved the [product] or would have withdrawn that approval.”  United States ex rel. Nargol v. DePuy Orthopaedics, Inc., 865 F.3d 29, 31 (1st Cir. 2017).  Based on those allegations, the Nargol plaintiffs claimed the every use of the product was as false claim – without the FDA’s (allegedly fraudulently obtained) approval, “doctors would not have certified the devices for government reimbursement.”  Id.  The First Circuit held, in effect, “hell, no.” The FDA was aware of all the mud the plaintiffs threw against the wall and did not rescind its decision:

Such very strong evidence [of immateriality] becomes compelling when an agency armed with robust investigatory powers to protect public health and safety is told what Relators have to say, yet sees no reason to change its position.  In such a case, it is not plausible that the conduct of the manufacturer in securing FDA approval constituted a material falsehood capable of proximately causing the payment of a claim by the government.  Ruling otherwise would “turn the FCA into a tool with which a jury of six people could retroactively eliminate the value of FDA approval and effectively require that a product largely be withdrawn from the market even when the FDA itself sees no reason to do so.”  [T]here is no allegation that the FDA withdrew or even suspended product approval upon learning of the alleged misrepresentations.

Id. at 35 (citations omitted).  Thus, “the FDA was paying attention,” but the Agency “viewed the information . . . differently than [plaintiffs] do.”  Id.

The government, having heard what [plaintiffs] had to say, was still paying claims not because of what was said to or by the doctors, but because the government through the FDA affirmatively deemed the product safe and effective.  And, absent some action by the FDA, we can see no plausible way to prove to a jury that FDA approval was fraudulently procured.

Id. at 36.  So, rather than preemption, Nargol disposed of fraud on the FDA-based FCA claims on materiality grounds, as long as the FDA (as is 95%+ the case) did not act on the purported fraud.  That’s basically Buckman modified by that decision’s two-justice concurrence that a different result might occur had the FDA itself found fraud.  531 U.S. at 353-55 (Stevens & Thomas, JJ. concurring).

The omitted citations in our quote from Nargol were to an earlier First Circuit decision that reached a similar result, D’Agostino v. ev3, Inc., 845 F.3d 1 (1st Cir. 2016).  In D’Agostino (which we previously discussed here), the First Circuit saw FCA-based fraud-on-the-FDA claims for what they really were, an attempt to hijack the FCA and turn it into a vehicle for second-guessing FDA decisions:

To rule otherwise would be to turn the FCA into a tool with which a jury of six people could retroactively eliminate the value of FDA approval and effectively require that a product largely be withdrawn from the market even when the FDA itself sees no reason to do so.  The FCA exists to protect the government from paying fraudulent claims, not to second-guess agencies’ judgments about whether to rescind regulatory rulings.

Id. at 8 (citation omitted).  Thus, the same policy reasons the Supreme Court gave for preemption in Buckman all counseled against recognizing agency fraud claims under a federal statute:

The collateral effects of allowing juries in qui tam actions to find causation by determining the judgment of the FDA when the FDA itself has not spoken are akin to those practical effects that counsel in favor of not allowing state-law fraud-on-the-FDA claims.  See Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 349-51 (2001).  If jurors in a single qui tam case could determine precisely what representations were essential to approval, which experts to believe, and how the FDA interpreted submissions made to it, some potential applicants who would otherwise seek approval for new products might be deterred, others might swamp the FDA with more data than it wants, and the “FDA’s responsibility to police fraud consistently with the Administration’s judgment and objectives” might be undercut.  Id. at 350.

Id. at 8-9.

Additionally, as already mentioned in connection with Nargol, the D’Agostino decision also relied upon the “demanding” materiality standard for “implied certification” FCA claims.  Id. at 7.  That agency fraud supposedly “could have” influenced FDA approval wasn’t enough.  “[C]ould have . . . falls short of pleading a causal link between the representations made to the FDA and the [false claim] payments.”  Id.

If the representations did not actually cause the FDA to grant approval it otherwise would not have granted, [the government] would still have paid the claims. In this respect, [relator’s] fraudulent inducement theory is like a kick shot in billiards where the cue ball “could have” but did not in fact bounce off the rail, much less hit the targeted ball.

Id.  Moreover, the D’Agostino fraud-on-the-FDA allegations failed for lack of causation.  If the FDA’s response to the fraud allegations is “doesn’t impress me much,” and the FDA thus doesn’t rescind its decision, then causation is impossible – and that’s what happened in D’Agostino:

In the six years since [relator] surfaced the alleged fraud, the FDA has apparently demanded neither recall nor relabeling of [the product] − this notwithstanding the agency’s [list of enforcement options].  The FDA’s failure actually to withdraw its approval . . . in the face of [plaintiff’s] allegations precludes [plaintiff] from resting his claims on a contention that the FDA’s approval was fraudulently obtained.

Id. at 8.  “[C]ausation is an element of the fraudulent inducement claims [plaintiff] alleges and . . . the absence of official action by the FDA establishing such causation leaves a fatal gap.”  Id. at 9.

In Southeast Laborers Health & Welfare Fund v. Bayer Corp., 444 F. Appx. 401, 410 n.2 (11th Cir. 2011), the court held that plaintiffs could not pursue a fraud on the FDA-based RICO causation theory.  However, the court’s discussion of RICO simply referred back to its prior discussion of why a similar state-law claim could not survive:

A theory of causation relying solely on an allegation that the medication in question would not have been on the market absent the alleged fraudulent conduct is no more than a state law “fraud on the FDA” theory, a theory that has been specifically rejected by the Supreme Court. . . .  Accordingly, [our prior decision] could not have implicitly approved of a state law “fraud on the FDA” theory of causation . . . whereby a third-party payor is permitted to state a causal nexus between the alleged fraudulent conduct and the payor’s ascertainable loss by simply asserting that absent the allegedly fraudulent conduct, the FDA would not have approved the medication to be on the market.

Id. at 407 (Buckman discussion omitted).

Those are all the appellate cases having anything to do with agency fraud that cite Buckman in the same paragraph as one of the four federal statutes we earlier identified.  As for district courts, United States ex rel. v. Medtronic, Inc., 2017 WL 4023092 (C.D. Cal. Sept. 11, 2017), likewise rejected a fraud on the FDA-based FCA claim:

[C]laims of fraud are disfavored if made by third parties who seek to second guess a decision by the FDA to certify a device.  Relator’s claims are in effect such a challenge as to the decision of the FDA to grant §510(k) clearance for the Subject Devices. Alleged fraudulent conduct directed to the FDA, without more, is inadequate to support an FCA claim.  [discussion of Buckman omitted]

Given the resources available to the FDA to investigate and approve medical devices, and to pursue remedies for alleged violations that arise in connection with the process, the policy concerns expressed in [Buckman] are material here.  The premise of the alleged fraud in the FAC is that Defendants misled the FDA during the §510(k) certification process.  However, an FCA action is not the proper way to bring such a claim.

Id. at *7 (citing inter alia the district court opinion in D’Agostino, 153 F. Supp.3d 519).

On the other side, we have also found a couple of district court FCA cases that have allowed the sort of fraud on the FDA-based allegations that Nargol and D’Agostino reject.  See United States ex rel. Brown v. Pfizer, Inc., 2016 WL 807363, at *9 (E.D. Pa. March 1, 2016) (“The claims in Buckman were state law tort claims, not claims brought under the FCA.  Defendant has provided no authority, and we are aware of none, that has extended the holding in Buckman to FCA claims.”); United States ex rel. Krahling v. Merck & Co., 44 F. Supp. 3d 581, 593 (E.D. Pa. 2014) (“alleg[ations] that Defendant consistently and deliberately withheld pertinent information as to the safety and efficacy of a medication from the government . . . is [a] grounds for FCA liability.”).  Neither of these cases had the benefit of Nargol or D’Agostino, and neither addressed causation/materiality, so it is questionable whether they would be decided in the same fashion today.

Beyond the FCA, we found a magistrate’s opinion, Meijer, Inc. v. Ranbaxy Inc., 2016 WL 4697331 (Mag. D. Mass. Sept. 7, 2016), that the case “present[ed] an issue of apparent first impression: whether Sherman Act claims . . . may be predicated on an underlying fraud on the [FDA].”  The Magistrate effectively gave antitrust plaintiffs free rein to assert fraud-on-the-FDA claims:

The FDA’s enabling statute does not entrust it with policing antitrust or RICO; therefore, Plaintiffs’ claims do not usurp the agency’s statutory right to… calibrate a measured response to alleged fraud committed against it.  The question of whether or not particular acts of regulatory gaming harm competition is and should be an antitrust question

Id. at *11 (citations and quotation marks omitted).  See Id. at *19 (“these claims sound in antitrust, not violations of the FDCA”).  We note that Meijer evidently differs from the vast majority fraud-on-the-FDA pleadings, in that the plaintiffs allege that the FDA actually did determine that it had been misled and took affirmative corrective action.  Id. at *5, 13.  Perhaps that is the reason that Meijer nowhere cited the otherwise extremely pertinent D’Agostino district court decision.  Also of interest, permission for an interlocutory appeal has been granted, Meijer, Inc. v. Ranbaxy Inc., 245 F. Supp.3d 312 (D. Mass. 2017), and that appeal in pending in the First Circuit.  In the interim, of course, the First Circuit has decided both Nargol and D’Agostino since the district court originally decided Meijer.

Finally, we expected to find agency fraud claims brought under the Lanham Act, but didn’t.  There are certainly enough other types of attempted private FDCA enforcement that have been asserted under the Lanham Act.  But our search (which required the term “Lanham” to appear in the same paragraph as “Buckman” or several variants of “fraud on the FDA”) didn’t produce anything directly on point.  The closest approximation was Intra-Lock International, Inc. v. Choukroun, 2015 WL 11422285 (S.D. Fla. May 4, 2015), which alleged the sale of a “medical device” without getting any form of FDA pedigree.  There was no fraud on the FDA, because there were no interactions with the FDA at all. The Lanham Act claim in Intra-Lock was dismissed because plaintiff’s theory of selling a medical device without a license was purely a violation of the FDCA.  Id. at *7.  But the case wasn’t – at least overtly – a true agency fraud claim.  Cf. Organ Recovery Systems, Inc. v. Preservation Solutions, Inc., 2012 WL 116041, at *7-8 (N.D. Ill. Jan. 16, 2012) (allowing non-FDA-related Lanham Act claims while making clear that plaintiff’s preempted agency fraud claims were not based on the federal statute).

So far, there hasn’t been an appellate court in the country that has allowed a private plaintiff to avoid Buckman by bringing a fraud-on-the-FDA claim disguised as a federal statutory claim.  While we’re not out of the woods, yet, the current trend can be described as favorable.

A year and a half ago we celebrated a rare prescription drug preemption win in the Philadelphia County Court of Common Pleas.  Then the decision was appealed, and we held our breath.  Preemption is never an easy sell in state courts, and Pennsylvania appellate courts are not exactly defendant friendly in prescription medical product liability cases.

Well, the wait is over and preemption won.  See Caltagirone v. Cephalon, Inc., 190 A.3d 596 (Pa. Super. 2018), allocatur denied, No. 248 EAL 2018 (Pa. Oct. 16, 2018).  We held off blogging even after the published Pa. Superior Court win, because we didn’t want to jinx anything.

Here’s what went down.

As we described before, the plaintiff had no basis for saying that anything about the drug in question (a strong opioid) was defective.  As the court pointed out, the purported wrongful death in Caltagirone was 2½ years after use of the drug at issue had ceased.  190 A.3d at 598 (plaintiff’s physician “stopped prescribing [the drug] for Mr. Caltagirone and moved him to other opioids.  About two and a half years later, on May 15, 2014, Mr. Caltagirone died.”).  Probably because the drug that killed the plaintiff’s decedent was a generic (that’s a guess on our part, but methadone has been around a long time), plaintiff nonetheless sued the manufacturer of this branded drug despite the 18-month gap.  “The overarching theme of the complaint is that even though Mr. Caltagirone died from methadone toxicity. . ., his underlying addiction was proximately caused by [defendant’s] program of promoting [the branded drug] for non-FDA approved pain management.”  Id.

In other words, rather than alleging any sort of traditional product liability “defect,” plaintiff attacked the drug because of alleged off-label promotion and off-label use – the decedent had been prescribed the drug for “migraine headaches.”  Id. at 597.

However, the defendant’s labeling forcefully warned about the drug’s addictive potential:

[The drug] carries a “Black Box” warning label, (the most serious type of FDA warning, named for the required distinctive black perimeter), advising of the risk of serious adverse health consequences from the use of [the drug], including respiratory depression, addiction, and death.  The Black Box label warns against the use of [the drug] for any condition other than cancer pain, including, specifically, migraine headaches.

Id. at 597-98.  Thus, the plaintiff’s arguments on appeal focused largely on the alleged off-label promotion of the drug – that it supposedly violated the muchdiscussed FDA ban on any promotion, truthful or not, of off-label uses of regulated products.

The Superior Court recognized that claim for what it was – an attempt at private enforcement of the FDA’s off-label promotion ban – facially preempted under Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001):

[Plaintiff’s] pleadings are legally insufficient. . . .  [T]he pervasive claim of [the] complaint is that [defendant’s] various derelictions, (principally, promoting sales for off-label purposes), were not approved or were in direct violation of the FDCA or its implementing regulations.

However, with narrow exceptions not asserted and not applicable here, the general rule is that there is no private right to enforce the law and regulations of the FDCA.  [citing 21 U.S.C. §337(a) and Buckman]

Because [Plaintiff’s] claims rely on asserted violations of the FDA’s “off-label” restrictions, which are pre-empted, the trial court properly sustained [defendant’s] preliminary objections.

Id. at 599-600.

Plaintiff appealed again, to the Pennsylvania Supreme Court, but on October 16, that court rejected the appeal.  We could stop holding our breath.

So we have another win for Buckman, this time against a plaintiff hell-bent on suing the manufacturer of a drug that didn’t in fact cause the complained-of injuries.  Once and for all, “off-label promotion” alone can’t be the basis of a state-law tort claim.

Not long ago we published, as a guest post, a 50-state survey of state tolling statutes that governed whether, and under what circumstances, actions dismissed on a non-merits basis could be refiled notwithstanding the running of the applicable statute of limitations in the interim.

Bexis had never really thought much about these kinds of statutes before – but in preparing the post for publication, he did. That led to an idea.

Bexis being Bexis, he looked up the Delaware statute cited in the post, Del. Code Ann. tit. 10 §8118. That statute provides:

(a) If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return . . . by any unavoidable accident, or by any default or neglect of the officer to whom it is committed; . . . , or for any matter of form; or if after a verdict for the plaintiff, the judgment shall not be given for the plaintiff because of some error appearing on the face of the record which vitiates the proceedings; or if a judgment for the plaintiff is reversed on appeal or a writ of error; a new action may be commenced, for the same cause of action, at any time within 1 year after the abatement or other determination of the original action, or after the reversal of the judgment therein.

(Emphasis added).

There’s nothing specific, but the highlighted phrase, “in this chapter,” suggests that the original action, as to which tolling is subsequently allowed, had to have been filed in a Delaware court, since statutes of limitations are generally procedural, and an action filed in a different state’s court would not be “commenced within the time limited therefor in this chapter.”

It turns out there are actually cases addressing that issue.  Back in 1956 (the year Bexis was born), a Delaware court interpreted a statutory predecessor in precisely this fashion. That statute, like the current §8118(a), “state[d] if an action brought within the period prescribed by law is dismissed for any reason other than upon the merits, a new action may be commenced within a specified time.”  Sorensen v. Overland Corp., 142 F. Supp. 354, 362 (D. Del. 1956), aff’d, 242 F.2d 70 (3d Cir. 1957).  As to the scope of tolling, Sorenson held that it did not reach cases not originally filed in a Delaware court (state or federal):

The argument made to embrace all courts within a state − that the theory of [the statute] mitigates against the harshness of the statute of limitation and thereby requires a liberality of approach − does not encompass prior actions arising out of foreign courts, state or federal.  Where a difference is one of kind and not degree, liberality of construction is not an absolute tool.  The Delaware statute from its plain meaning leads me to believe its provisions were not intended to cover actions commenced beyond the boundaries of the state.  I find therefore, under §8117 the bar of limitation is not avoided by another action failing other than upon the merits in another jurisdiction between the same parties on the same cause of action.

Id. at 363 (footnote omitted) (emphasis added).  See Salsburg v. Pioneer Gen-E-Motor Corp., 1962 WL 69576, at *2 (Del. Ch. June 13, 1962) (“It has generally been held under similar savings statutes that they are not applicable in cases where the original action is brought in a foreign jurisdiction.”).

That this statute applies to actions originally brought in Delaware federal court was confirmed in Howmet Corp. v. City of Wilmington, 285 A.2d 423, 426 (Del. Super. 1971)

This is not a situation where the first action was intentionally brought in the wrong court. . . .  As a result, the error in bringing the action in the Federal District Court for the District of Delaware, which lacked jurisdiction, did not prevent the action from being “duly commenced.”

Id. at 426.  Another relevant Delaware case is an exception that distinguished Sorenson and Howmet and allowed tolling where an action had originally been filed in Pennsylvania “in the belief that [an automobile] accident occurred in Pennsylvania” when in fact “the accident occurred in Delaware.”  Leavy v. Saunders, 319 A.2d 44, 45 (Del. Super. 1974).  The accident had occurred on I-95 at the Pennsylvania-Delaware border.  Id.  Because the plaintiff’s attorney “apparently in good faith believed that the accident occurred in Pennsylvania,” id. at 48, the court cut the plaintiff a break under the Delaware tolling statute and allowed refiling.

Get to the point.  Why should anybody care about this obscure legal issue?

Here’s the reason:  personal jurisdiction under Daimler AG v. Bauman, 571 U.S. 117 (2014), and Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

Because of Bauman and BMS, lots of litigation tourists – whose lawsuits are, as Howmet put it, “intentionally brought in the wrong court” – will be finding themselves out of court on jurisdictional grounds.  More of our clients are incorporated, and are thus “at home,” in Delaware than in any other state.  Litigation tourists that Bauman/BMS will be putting out of the courts in which they erroneously filed will probably be looking to refile somewhere else, and will often have to assert one of these tolling statutes to avoid the statute of limitations in the new courts where they file.  While such jurisdictionally-driven refilings could occur in any state, Delaware is a particularly likely forum.

Interpreting state tolling statutes – as Delaware has – not to apply to actions initially (and deliberately) misfiled in other states by litigation tourists can be another powerful deterrent to litigation tourism.

Right now, the law we cited above means that all the litigation tourists who filed actions against Delaware corporations in California, Missouri, or Illinois, can’t refile in Delaware.  Maybe they can refile in their home states, where they should have filed in the first place, but only if their home states’ tolling statutes apply (or are interpreted to apply) to dismissed actions that were deliberately filed in an incorrect forum.

Unless a particular state’s tolling statute specifically provides for extraterritorial application, defense counsel should argue – vociferously – against such an interpretation.  A litigation tourist who deliberately filed in an erroneous jurisdiction, seeking some sort of tactical advantage, is not the sort of innocent victim of some non-merits circumstance that such statutes were intended to help.

Going forward, interpretation of tolling statutes to preclude extraterritorial effect could serve as a powerful disincentive to still more litigation tourism.  A Delaware-style interpretation removes the net from any plaintiff considering a stroll on the tightrope of litigation tourism.  Such plaintiffs would find themselves in the same position as litigation tourists who currently reside in Alabama, Florida, Hawai’i, North Dakota, South Carolina and South Dakota – not having any home-state tolling to fall back on in the event of a personal jurisdictional misadventure.

Needless to say, we would also look favorably on efforts to amend tolling statutes to provide expressly that they do not extend any benefit to litigation tourists.

In any event, defense counsel who succeed in defeating litigation tourist plaintiffs should be ready to examine tolling statutes for extraterritorial effect whenever such plaintiffs refile.  Those plaintiffs’ deliberately bringing their actions initially in an incorrect state may mean they are barred even by their home state’s statute of limitations, depending on how the relevant tolling statute applies.

Today’s guest post was is a group effort of Betsy Chance, Diana Comes, and Mac Plosser, all at the Butler Snow firm.  A little while ago they circulated (we don’t remember exactly how) an earlier version of a 50-state survey they had put together on state tolling statutes that preserve lawsuits that have been dismissed for non-merits reasons.  We had encountered this type of tolling before, in mass tort litigation – to see more, particularly involving personal jurisdiction dismissals – so it was of interest to us.  After reading it, we asked our colleagues if we could post the survey as a guest blogpost.  They agreed, and here is the result.  As always, our guest bloggers are 100% responsible for the content of their posts, and deserve all the credit (and any blame) for what follows.


Many jurisdictions have “savings statutes” that are designed to provide a window of opportunity for a plaintiff to re-file a claim that was dismissed for non-merits reasons even if the statute of limitations has run.  Such savings provisions vary widely:  from no provision at all to saving claims where process has never been served to saving claims that were voluntarily dismissed.  The time limits to “save” a claim are also disparate and range from 30 days to three years. Following is a summary of all 50 states’ approaches to savings statutes, providing the statutory basis for such savings statutes along with other helpful information.

No savings statutes:  Alabama, Florida, Hawaii, North Dakota, South Carolina, and South Dakota

Six states have no mechanism for preserving claims following a dismissal without prejudice.  See Burt v. State, 149 So.3d 1110, 1113 n. 5 (Ala. Crim. App. 2013) (“Alabama does not have a general savings statute or a constitutional savings clause.”); HCA Health Serv. v. Hillman, 906 So.2d 1094, 1098 (Fla. App. 2004) (“Florida has chosen not to adopt a ‘savings statute’ that allows a plaintiff whose case has been dismissed otherwise than on the merits to pursue the action even though the statute of limitations has run.”); Eto v. Muranaka, 57 P.3d 413, 427 (Haw. 2002) (“There is no savings statute in Hawai’i.”); Reid v. Cuprum SA, de C.U., 611 N.W.2d 187, 190 (N.D. 2000); Rink v. Richland Mem. Hosp., 422 S.E.2d 747, 749 (S.C. 1992); Peterson v. Hohm, 607 N.W, 2d 8, 13 (S.D. 2000).

Very limited-scope savings statutes: Michigan, Vermont, and Wisconsin

Michigan does not have a general savings statute, and has a limited savings statute of two years only for wrongful death claims where the claimant dies before the limitations period expired or within 30 days of the expiration.  Mich. Comp. Laws § 600.5852. Vermont’s only savings statute applies to claims or criminal prosecutions based on repealed statutory provisions.  See 1 Vt. Stat. Ann. §214(b).   Wisconsin’s only savings statute concerns the viability of pending actions after repeal of a statute. Wis. Stat. § 990.04.

Less than 6 months: Colorado, Kentucky, Nevada, Oregon, and Texas

Five states have more general savings statutes, but significantly limit the window within which to re-file an action per statute.  Colo. Rev. Stat. § 13-80-111 (90 days to re-file an action that was dismissed for lack of jurisdiction or venue, including actions first filed in federal court and recommenced in state court); Ky. Rev. Stat. Ann. § 413.270 (a dismissed action may be re-filed within 90 days of dismissal based on jurisdiction or venue); Nev. Rev. Stat. Ann. § 11.500 (a dismissed claim may be re-filed within the original limitations period or 90 days, whichever is later, only if it is dismissed for lack of subject matter jurisdiction); Or. Rev. Stat. § 12.220 (60 day period for re-filing an action that “is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action” or dismissed for failure to properly effect service and the limitations period has expired); Tex. Civ. Prac. & Rem. Code § 16.064 (plaintiff may re-file a dismissed action within 60 days of dismissal if the action is dismissed for lack of jurisdiction).

Six months:  Arizona, Georgia, Iowa, Kansas, Maine, New Mexico, and New York

These seven states have six month general savings statutes with varying conditions.  Ariz. Rev. Stat. Ann. § 12-504(A) (six months to re-file a dismissed claim, but the savings statute is discretionary, and plaintiff must establish entitlement to the statutory provision if the claim is terminated by abatement, voluntary dismissal by order of the court or dismissal for lack of prosecution (see Jepson v. New, 792 P.2d 728, 734 (Ariz. 1990)); Ga. Code Ann. § 9-2-61 (six month savings period to re-file a claim that “the plaintiff discontinues or dismisses”); Iowa Code § 614.10 (six months to re-file a non-merits dismissal, provided the case is not voluntarily dismissed by plaintiff or dismissed for lack of prosecution); Kan. Stat. Ann. § 60-518 (action may be re-filed within 6 months if there is a non-merits dismissal of the claim after the statute of limitations has otherwise expired); 14 Me. Rev. Stat. § 855 (savings clause for cases “defeated for any matter of form” or the death of a party, which can be re-filed within six months); N.M. Stat. Ann. § 37-1-14 (a claim may be re-filed in six months if it was dismissed for any non-merits reason other than failure to prosecute); N.Y.C.P.L.R. § 205 (a claim may be re-filed within six months, unless it is voluntarily dismissed by the plaintiff, for failure to prosecute, for lack of personal jurisdiction over the defendant, or is a claim that is dismissed on the merits).

One year – significant preconditions:  Arkansas, California, Connecticut, Delaware, Idaho, Massachusetts, Minnesota, Montana, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, and West Virginia

Many states have one year savings statutes containing various legislatively and/or judicially imposed limitations or conditions.  See Ark. Code Ann. § 16-56-126(a) (before a plaintiff can take advantage of the one year savings provision, he or she must serve process of the first action, and may only re-file where the limitations period expires between the initial filing and the non-merits dismissal); Del. Code Ann. tit. 10 § 8118 (six circumstances where claims are saved and can be re-filed within one year of a non-merits dismissal, none of which include voluntary withdrawal); Idaho Code § 5-233 (re-filing within one year only when a judgment for plaintiff is reversed on appeal); Mass. Gen. Laws ch. 260, § 32 (one year time period to re-file actions dismissed only for “a matter of form”); Minn. Stat. § 541.18 (one year to re-file a claim that is dismissed for non-merits reasons, including jurisdictional issues, but the plaintiff must establish that the defendant received timely notice of the claim); Mont. Code Ann. § 27-2-407 (one year window to re-file a claim dismissed for non-merits reasons and other than a plaintiff’s voluntary dismissal or failure to prosecute); N.J. Stat. Ann. § 2A:14-28 (one year to re-file a claim where a judgment that was rendered for plaintiff is reversed on appeal or dismissed on post-judgment motion by the court); N.C. Gen. Stat. § 1A-1 (Rule 41A voluntarily dismissed claim may be re-filed within one year of dismissal; no revival of merits-based dismissals, failure to prosecute, or failure to comply with orders of the court; court may specify a shorter period for re-filing); Ohio Rev. Code Ann. § 2305.1 (one year time period to re-file a claim that “fails otherwise than upon the merits” when the limitations period expires during the pendency of the first suit); 12 Okla. Stat. § 100 (plaintiff may re-file a claim dismissed for non-merits reasons within one year of the dismissal, so long as the action is commenced within Oklahoma); 42 Pa. Cons. Stat. § 5535 (terminated actions may be re-filed within a year; excluding personal injury or wrongful death claims, claims that are voluntarily dismissed by plaintiff, dismissed for failure to prosecute or dismissed on the merits); R.I. Gen. Laws § 9-1-22 (action may be re-filed within one year of a non-merits dismissal, provided the dismissal is not voluntary by the plaintiff or for failure to prosecute); W. Va. Code R.§ 55-2-18 (plaintiff may re-file a dismissed action within one year of dismissal if the action was involuntarily dismissed for a non-merits reason but does not apply to voluntary dismissals by the plaintiff or to dismissals based on plaintiff’s negligence).

California’s one-year savings provision is unique in that it provides a one year window to re-file if a judgment for plaintiff is “reversed on appeal other than on the merits.”  Cal. Code Civ. Proc. § 355.  It was extended by case law to a claim that is voluntarily dismissed, but only if three factors are met: “(1) the trial court erroneously granted the initial nonsuit; (2) dilatory tactics on the part of the defendant ‘prevented disposition of the first action in time to permit a second filing within the [limitations period]’; and (3) the plaintiff had at all times proceeded in a diligent manner.”  Dimcheff v. Bay Valley Pizza Inc., 84 F. App’x 981, 982-83 (9th Cir. 2004) (quoting Wood v. Elling Corp., 572 P.2d 755, 760 (Cal. 1977)).

Connecticut has two separate savings statutes. One allows the re-filing of claims dismissed for a non-merits failure of the suit within one year, Conn. Gen. Stat. § 52-592 (six months if claim is against executor); the second allows a one year period to re-file if the original suit named the wrong defendant.  Conn. Gen. Stat. § 52-593.  An original action is deemed “commenced” for purposes of the savings statute when the defendant has effective notice of the action within the one year savings time.  Rocco v. Garrison, 848 A.2d 352, 359 (Conn. 2004).

One year – few preconditions:  Alaska, Illinois, Mississippi, Missouri, New Hampshire, Tennessee, Utah, and Wyoming

Another eight states allow one year for a plaintiff to refile an action, although the claims covered vary, for a one year time frame without condition.  See Alaska Stat. § 09.10.240 (a plaintiff “may commence a new action upon the cause of action within one year of the dismissal or reversal on appeal”); Miss. Code Ann. § 15-1-69 (re-filing within a year if a case is dismissed for a “matter of form,” which has been held to include voluntary dismissal in federal court); Mo. Rev. Stat. § 516.230 (an action dismissed without prejudice may be re-filed “from time to time” within one year); N.H. Rev. Stat. Ann. § 508:10 (an action may be re-filed within one year of any dismissal that does not bar the right of action); Tenn. Code Ann. § 28-1-105 (one year to re-file an action that is dismissed for reasons “not concluding the plaintiff’s right of action”); Utah Code Ann. § 78B-2-111 (plaintiff may re-file a claim once within one year of dismissal other than on the merits); Wyo. Stat. Ann. § 1-3-118 (new action allowed for one year after reversal of judgment or non-merits dismissal).

Illinois has a peculiar situation.  A 1995 amendment to 735 Ill. Comp. Stat. 5/13-217 that would have added significant preconditions was a non-severable part of a legislative package struck down as unconstitutional for other reasons in Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997).  Thus, the pre-1995 version of § 5/13-217, controls, which allows for voluntary dismissals and dismissals for want of prosecution or other procedural reasons to be re-filed within one year or within the original limitation period, whichever is greater without the other conditions added in 1995.  See Hudson v. City of Chicago, 889 N.E.2d 210, 214 n.1 (Ill. 2008).

Three years:  Indiana

By far the most generous savings statute is Indiana’s, which allows three years to re-file an action.  Ind. Code § 34-11-8-1.  The only consolation is that the statute does not apply if the action is dismissed for want of prosecution or voluntarily dismissed by plaintiff.  Ind. Code § 34-11-8-1(a)(1); Kohlman v. Finkelstein, 509 N.E.2d 228 (Ind. App. 1987).

Miscellaneous:  Louisiana, Maryland, Nebraska, Virginia, and Washington

The remaining states have unique savings provisions that resist categorization. While not a savings statute per se, Louisiana provides that the statute of limitations is tolled (“interruption of prescription”) when a suit is filed, and that tolling continues during the pendency of the case.  La. Civ. Code Ann. art. 3463.  However, such “interruption” is deemed not to have occurred if the plaintiff abandons, voluntarily dismisses or fails to prosecute her claim.  “The effect of interruption of prescription, as contrasted with suspension of prescription, is that the time that has run prior to the interruption is not counted; prescription commences to run anew from the last day of the interruption.”  Cichirillo v. Avondale Indus., 917 So. 2d 424, 430 (La. 2005).

Maryland does not have a general savings statute, but has two separate savings provisions operating in specific types of actions.  Md. Code Ann. Cts. & Jud. Proc. § 5-119 (60 days to re-file a medical malpractice claim when it was dismissed for “failure to file a report in accordance with § 3-2A-04(b)(3) of this article” (i.e., a certificate of a qualified expert) and does not apply to voluntary dismissals by the plaintiff); Md. Rule 2-101 (30 days to re-file in state court if action was dismissed in federal court for want of jurisdiction or under a limitations period under federal law).  In Virginia, a plaintiff may re-file an action within one year of a reversal of a judgment for plaintiff that does not preclude a new cause of action.  Va. Code Ann. § 8.01-229(E).  If a plaintiff voluntarily dismisses her claim, a new action may be brought within 6 months of the dismissal, or within the original statute of limitation, whichever is longer. Id. The savings statute applies whether the original action was filed first in federal court and then in state court or vice versa.  Blakely v. Austin-Weston, 348 F. Supp.2d 673, fn 4 (E.D. Va. 2004).

Nebraska and Washington provide a limited mechanism by which a plaintiff’s claim can survive in the event the statutory basis underlying those claims is amended or repealed.  See Neb. Rev. Stat. § 49-301 (addressing the viability of claims that are pending at the time the statutory basis for the claims is repealed); Wash. Rev. Code § 10.02.040 (providing that a savings period applies to preserve claims arising under a statutory framework even if the statute is subsequently amended or repealed). These states have no general tolling.

Because of the wide range of rules and limitations among the states, it is crucial that the relevant statutory and common law provisions applicable to voluntary or non-merits-based dismissals be examined in order to assess the propriety of any re-filed claim or the finality of any dismissal without prejudice.


We’re blogging today because of an annoyance – another of these nuisance motions filed by plaintiffs that should be skirting the border of Rule 11, but unfortunately isn’t.  Our particular gripe is a motion to strike a defendant’s pleaded defenses (please don’t call them “affirmative” defenses unless they really are) because they supposedly don’t meet the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (collectively “TwIqbal”).  These motions are meritless for the simple reason that defenses, unlike pleading of affirmative claims, are not governed by Fed. R. Civ. P. 8(a) – the rule giving rise to TwIqbal – but rather by Fed. R. Civ. P. 8(c).  Rule 8(a), governing “claim[s] for relief,” requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”  Rule 8(c), governing “affirmative defenses,” requires only that the pleader “must affirmatively state any avoidance or affirmative defense,” with no requirement of any “showing.”  Thus, the proper response should be that “[c]ourt[s] do[] not hold defenses to the strictures of Twombly and Plaintiffs’ arguments based upon Twombly and its progeny are roundly rejected.” Hamblen v. Davol, Inc., 2018 WL 1493251, at *3 (M.D. Fla. March 27, 2018).

So there.

The text of the rule should end the matter, but as with removal before service, plaintiffs advance various extra-textual dodges.  Those excuses amount to little more than, “because we have to obey TwIqbal, defendants should, too,” whatever the relevant rules actually say.  That “double standard” argument deserves a barnyard expletive, but, instead it gets this blogpost – and this quote:  “There is nothing dumber than a motion to strike boilerplate affirmative defenses; it wastes the client’s money and the court’s time.”  Raymond Weil, S.A. v. Theron, 585 F. Supp.2d 473, 489-90 (S.D.N.Y. 2008).

We start with Twombly:

[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

550 U.S. at 555 (lots of citations and quotation marks omitted) (emphasis added).  Likewise in Iqbal, the Court made clear that all Rule 8(a) claims must adhere to the same pleading standard:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief. . . .” [Rule 8(a)] demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.  A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.  Nor does a complaint suffice if it tenders naked assertions” devoid of further factual enhancement.  To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.  A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Id. at 677-78 (again with lots of citations and quotation marks omitted) (emphasis added).

None of that has ever been true for the defenses and avoidances that Rule 8(c) simply requires be “affirmatively stated.”  “The Federal Rules of Civil Procedure do not require a heightened pleading standard for a . . . defense.”  Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009).  “When [TwIqbal] restated the requirements of Fed. R. Civ.P. 8, the Justices did not revise the allocation of burdens concerning affirmative defenses; neither [decision] mentions affirmative defenses.”  Davis v. Indiana State Police, 541 F.3d 760, 763-64 (7th Cir. 2008).  “[A]n affirmative defense ‘need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of [Rule 8] by its bare assertion.’”  In re Frescati Shipping Co., 886 F.3d 291, 313 (3d Cir. 2018) (quoting Moody v. Atlantic City Board of Education, 870 F.3d 206, 218 (3d Cir. 2017)).

[Plaintiff] simply argues that the affirmative defense pleadings were defective simply because they were “bare one-liners.”  Because the applicable test does not require the district court to count the lines of text that an invoked defense uses and because the defendant’s pleading gave [plaintiff] notice of the defense, the district court did not err in permitting the defendants to assert their affirmative defenses in their answer.

Lawrence v. Chabot, 182 F. Appx. 442, 457 (6th Cir. 2006). In Twombly “the Justices did not revise the allocation of burdens concerning affirmative defenses” nor did Twombly “mention[] affirmative defenses in general.” Davis v. Indiana State Police, 541 F.3d 760, 763-64 (7th Cir. 2009); accord Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 691 (7th Cir.2012) (declining to apply TwIqbal “heightened pleading standards” to affirmative defenses).  “[T]he ‘fair notice’ required by the pleading standards only requires describing the defense in ‘general terms.’”  Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015).  Given the express language of Rule 8, arguments that, because plaintiffs’ “claims” are subject to TwIqbal, defendants’ defenses should be, too, are paradigms of false equivalence.

Thus, case after case has held that TwIqbal does not apply to affirmative defenses.  One particularly detailed discussion of the reasons why occurred in this product liability case involving a prescription drug:

Courts offer at least three justifications for applying a less stringent standard to affirmative defenses.  First, these courts maintain that the Twombly standard is rooted in Rule 8(a)’s “showing” requirement.  As proof, they cite various parts of the Twombly opinion, including one particularly telling passage where the United States Supreme Court explains that “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”  Juxtaposing the “showing” language in Rule 8(a) with the “stating” language in Rules 8(b) and (c), these same courts then point out the difference between requiring the statement of something and requiring the showing of something. . . .

Second, relying on well-settled principles of statutory construction, courts applying a lower pleading standard to affirmative defenses maintain that if the drafters of Rule 8 had intended for the “showing” requirement to apply to the pleading of defenses, they knew how to say it, as demonstrated by Rule 8(a), and would have written that requirement into Rules 8(b) and (c).  The drafters of Rules 8(b) and (c) having not done so, these courts reason, the judiciary is not free to engraft the “showing” requirement onto these rules itself.  Thus, these courts conclude, where, as with Rule 8, the language of the provision being construed is clear, the analysis ends with the language, and the court may not take into account policy considerations.

Lastly . . ., a lower pleading standard is consistent with binding case law.  While the Eleventh Circuit has addressed affirmative defenses, it has not extended the pleading requirements of Rule 8(a) beyond claims.  Rather, the appeals court has stressed that notice is the main purpose of Rule 8(c). . . .

Based on these rationales, this Court joins the growing number of courts in this circuit and others in finding that a lower pleading standard applies to affirmative defenses.  Such an approach is faithful both to the letter and the spirit of Rules 8(b) and (c), as revealed through the plain language of Rule 8 and Eleventh Circuit precedent.

Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 681-82 (S.D. Fla. 2015) (once again omitting lots of quotations and citations).  Similarly, the court in Tardif v. City of New York, 302 F.R.D. 31 (S.D.N.Y. 2014), summarized the numerous reasons why TwIqbal does not apply to defenses:

(1) textual differences between Rule 8(a), which requires that a plaintiff asserting a claim show entitlement to relief, and Rule 8(c), which requires only that the defendant state any defenses;

(2) a diminished concern that plaintiffs receive notice in light of their ability to obtain more information during discovery;

(3) the absence of a concern that the defense is “unlocking the doors of discovery”;

(4) the limited discovery costs, in relation to the costs imposed on a defendant, since it is unlikely that either side will pursue discovery on frivolous defenses;

(5) the unfairness of holding the defendant to the same pleading standard as the plaintiff, when the defendant has only a limited time to respond after service of the complaint while plaintiff has until the expiration of the statute of limitations;

(6) the low likelihood that motions to strike affirmative defenses would expedite the litigation, given that leave to amend is routinely granted;

(7) the risk that a defendant will waive a defense at trial by failing to plead it at the early stage of the litigation;

(8) the lack of detail in Form 30, which demonstrates the appropriate pleading of an affirmative defense; and

(9) the fact that a heightened pleading requirement would produce more motions to strike, which are disfavored.

Id. at 33-34 (citations and quotation marks omitted).  Accord, e.g.:

First Circuit

Vazquez-Robles v. CommoLoco, Inc., 186 F. Supp.3d 138, 149 (D.P.R. 2016) (“the Court concludes that [TwIqbal] do not apply to affirmative defenses”); Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza, Inc., 287 F.R.D. 119, 123 (D. Mass. 2012) (“the Court declines to apply the heightened pleading standard to defendants’ affirmative defense”).

Second Circuit

Leviton Manufacturing Co. v. Pass & Seymour, Inc., 264 F. Supp.3d 421, 427 (E.D.N.Y. 2017) (“The overwhelming majority view, to which I subscribe, is that the concept of plausibility has no application to affirmative defenses.”); Sibley v. Choice Hotels International, Inc., 304 F.R.D. 125, 133 (E.D.N.Y. 2015) (“a defendant must only ‘affirmatively state’ an affirmative defense pursuant to Rule 8(c) and need not meet the [TwIqbal] plausibility standard.”); Serby v. First Alert, Inc., 934 F. Supp.2d 506, 516 (E.D.N.Y. 2013) (“There is no requirement under Rule 8(c) that a defendant plead any facts at all.”).

Third Circuit

Schmidt v. Ford Motor Co., 198 F. Supp.3d 511, 526 n.7 (E.D. Pa. 2016) (following Tyco Fire); Gross v. Weinstein, Weinburg & Fox, LLC, 123 F. Supp.3d 575, 582-83 (D. Del. 2015) (declining to apply the plausibility standard found in TwIqbal to affirmative defenses); Mifflinburg Telegraph, Inc. v. Criswell, 80 F. Supp.3d 566, 574 (M.D. Pa. 2015) (“‘stating’ an affirmative defense provides ‘fair notice’ without specific factual allegations for each element of the defense”); Newborn Brothers Co. v. Albion Engineering Co., 299 F.R.D. 90, 97 (D.N.J. 2014) (“This Court joins those courts . . . which have held that the heightened [TwIqbal] standard is not applicable to the pleading of affirmative defenses under Rule 8(c)”); Senju Pharmaceutical Co. v. Apotex, Inc., 921 F. Supp.2d 297, 303 (D. Del. 2013) (“Due to the differences between Rules 8(a) and 8(c) in text and purpose, [TwIqbal] do not apply to affirmative defenses, which need not be plausible to survive. An affirmative defense must merely provide fair notice of the issue involved.”); XpertUniverse, Inc. v. Cisco Systems, Inc., 868 F. Supp.2d 376, 383 n.3 (D. Del. 2012) (“the majority of the District Courts in the Third Circuit have rejected the application of [TwIqbal] to defensive pleadings”; “[plaintiff] has failed to convince this Court that [TwIqbal] apply to . . . defensive pleadings”); Tyco Fire Products LP v. Victaulic Co., 777 F. Supp.2d 893, 900-01 (E.D. Pa. 2011) (“An affirmative defense need not be plausible to survive; it must merely provide fair notice of the issue involved”).

Fourth Circuit

Baron v. Directv, LLC, 233 F. Supp.3d 441, 444 (D. Md. 2017) (“a defendant’s affirmative defenses need not be pleaded according to the [TwIqbal] standard”); LBCMT 2007-C3 Urbana Pike, LLC v. Sheppard, 302 F.R.D. 385, 387 (D. Md. 2014) (“A plaintiff’s complaint invokes the jurisdiction of the court and seeks affirmative relief.  An affirmative defense does neither; consequently, it is reasonable to interpret the wording of Rule 8(b) and (c), which govern defenses and affirmative defenses, differently from the interpretation given by the Supreme Court to the distinctive wording of Rule 8(a) applicable to claims for relief.”); Lockheed Martin Corp. v. United States, 973 F. Supp.2d 591, 593-95 (D. Md. 2013) (“the Court declines to hold that [TwIqbal] apply to affirmative defenses”); Guessford v. Pennsylvania National Mutual Casualty Insurance Co., 918 F. Supp.2d 453, 468 (M.D.N.C. 2013) (“the Fourth Circuit has not directly addressed the implications [TwIqbal] on the pleading of affirmative defenses.  As such, the Court will follow the language of the Federal Rules of Civil Procedure and the Fourth Circuit’s present interpretation of that language, which requires only that a party ‘affirmatively state any avoidance or affirmative defense’ in order to provide fair notice to a plaintiff of the nature of the affirmative defense.”); Odyssey Imaging, LLC v. Cardiology Assocs., LLC, 752 F. Supp.2d 721, 725-26 (W.D. Va. 2010) (“because of these [textual] differences, Rules 8(b) and 8(c) do not require a court to subject defenses pleaded by a defendant to the same stringent plausibility standards that [TwIqbal] demand of claims for relief under Rule 8(a).”).

Fifth Circuit

Blount v. Johnson Controls, Inc., ___ F.R.D. ___, 2018 WL 4224465, at *2-3 (S.D. Miss. Sept. 5, 2018) (“The text of Rules 8(a), (b), and (c) reflects clear differences with respect to the purposes of complaints and responsive pleadings and the showings they require.  Those differences distinguish Twombly.”); United States ex rel. Parikh v. Citizens Medical Center, 302 F.R.D. 416, 418-19 (S.D. Tex. 2014) (“This Court is persuaded that the traditional fair notice standard, without the [TwIqbal] gloss, applies to an affirmative defense.”); Deniece Design, LLC v. Braun, 953 F. Supp.2d 765, 776 (S.D. Tex. 2013) (“[TwIqbal] do not apply to the pleading of” various affirmative defenses); EEOC v. Rock-Tenn Services Co., 901 F. Supp.2d 810, 832 (N.D. Tex. 2012) (declining to apply the plausibility standard found in TwIqbal to affirmative defenses); SEC v. Cuban, 798 F. Supp.2d 783, 795 n.13 (N.D. Tex. 2011) (“this court has declined so far to apply the plausibility standard to affirmative defenses”).

Sixth Circuit

Martin v. Trott Law, P.C., 265 F. Supp.3d 731, 737 (E.D. Mich. 2017) (TwIqbal “generally do not apply to pleading affirmative defenses”); Pidcock v. Schwab, 569 B.R. 463, 480 (N.D. Ohio 2017) (“The majority of courts considering this issue . . . follow[] the majority approach in finding that the [TwIqbal] pleading requirements do not apply to affirmative defenses.”).

Seventh Circuit

Ayotte v. Boeing Co., 316 F. Supp.3d 1066, 1076 (N.D. Ill. 2018) (“an affirmative defense need not be plausible to survive, and must merely provide fair notice of the issue involved”); Hancock v. Illinois Central Sweeping LLC, 73 F. Supp.3d 932, 942 (N.D. Ill. 2014) (“An affirmative defense may be pleaded in general terms and will be held to be sufficient as long as it gives the plaintiff fair notice of the nature of the defense.”).

Eighth Circuit

Wilkinson v. High Plains Inc., 297 F. Supp.3d 988, 993 (D.N.D. 2018) (“an affirmative defense . . . need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of Rule 8 by its bare assertion”); Summers Manufacturing Co. v. Tri-Cty. AG, LLC, 300 F. Supp.3d 1025, 1044 (S.D. Iowa 2017) (“the Court agrees with the analysis of fellow district courts . . . and finds the plausibility standard inapplicable to affirmative defenses”); Infogroup, Inc. v. DatabaseLLC, 95 F. Supp.3d 1170, 1193 (D. Neb. 2015) (“while defenses must be asserted in a responsive pleading, they need not be articulated with any rigorous degree of specificity, and may be sufficiently raised for purposes of Rule 8 by their bare assertion”); FDIC v. Dosland, 298 F.R.D. 388, 393-94 (N.D. Iowa 2013) (“I decline the [plaintiff’s] invitation to require the pleading of affirmative defenses to the [TwIqbal] ‘plausibility’ pleading standard”); Strauss v. Centennial Precious Metals, Inc., 291 F.R.D. 338, 343 (D. Neb. 2013) (“[TwIqbal] pleading standard [is] inapplicable to those affirmative defenses”); Wells Fargo & Co. v. United States, 750 F. Supp.2d 1049, 1051 (D. Minn. 2010) (“[TwIqbal] do not apply to the pleading of affirmative defenses.”).

Ninth Circuit

Rosen v. Masterpiece Marketing Group, LLC, 222 F. Supp.3d 793, 802 (C.D. Cal. 2016) (“Requiring defendants to satisfy the [TwIqbal] pleading standard within twenty-one days of being served with a complaint neither accords with the language of Rules 8(c) and 12(f), nor appears just as a matter of policy.”); Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp.3d 986, 991-92 (E.D. Cal. 2016) (“This Court will not apply [TwIqbal] to determining the sufficiency of affirmative defenses.”); ESCO Corp. v. Cashman Equipment Co., 158 F. Supp.3d 1051, 1058 (D. Nev. 2016) (“The standard for properly pleading an affirmative defense does not rise to the same level of pleading a cause of action.”); Craten v. Foster Poultry Farms, Inc., 2016 WL 3457899, at *2 (D. Ariz. June 24, 2016) (“the text of Rule 8(c)(1) and fairness considerations compel the conclusion that [TwIqbal] do not govern pleading affirmative defenses”); Rockwell Automation, Inc. v. Beckhoff Automation, LLC, 23 F. Supp.3d 1236, 1242 (D. Nev. 2014) (“because of the difference in language between Rules 8(a) and 8(c), the Court will leave it to the appellate courts to institute something like a plausibility standard for Rule 8(c)”); Weintraub v. Law Office of Patenaude & Felix, A.P.C., 299 F.R.D. 661, 665 (S.D. Cal. 2014) (“Stating an affirmative defense under Rule 8(c), however, does not require the pleader to ‘show’ entitlement to its defense.”); Polk v. Legal Recovery Law Offices, 291 F.R.D. 485, 490 (S.D. Cal. 2013) (“Applying the same standard of pleading to claims and affirmative defenses, despite this clear distinction in the rules’ language, would run counter to the Supreme Court’s warning in Twombly that legislative action, not ‘judicial interpretation,’ is necessary to ‘broaden the scope’ of specific federal pleading standards.); Kohler v. Staples the Office Superstore, LLC, 291 F.R.D. 464, 468 (S.D. Cal. 2013) (“this Court declines to extend the [TwIqbal] pleading standards to affirmative defenses”); Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D. Cal. 2013) (“the Supreme Court’s analysis in [TwIqbal] is limited to pleadings under [Rule] 8(a)(2)”); Kohler v. Islands Restaurants, LP, 280 F.R.D. 560, 566 (S.D. Cal. 2012) (“this Court declines to extend the [TwIqbal] pleading standards to affirmative defenses”).

Tenth Circuit

Fuller v. Finley Resources, Inc., 176 F. Supp.3d 1263, 1266 (D.N.M. 2016) (“other cases from this District have declined to extend the heightened pleading standard established in [TwIqbal] to affirmative defenses”); Federal National Mortgage Ass’n v. Milasinovich, 161 F. Supp.3d 981, 994-95 (D.N.M. 2016) (following Lane); Dorato v. Smith, 163 F. Supp.3d 837, 882 (D.N.M. 2015) (following Falley); Sharp v. CGG Land (U.S.) Inc., 141 F. Supp.3d 1169, 1176 (N.D. Okla. 2015) (“recitation of the specific affirmative defenses that may be applicable is sufficient to serve this [notice] purpose”), aff’d on other grounds, 840 F.3d 1211 (10th Cir. 2016); Wells v. Hi Country Auto Group, 982 F. Supp.2d 1261, 1264 (D.N.M. 2013) (“the [TwIqbal] pleading standard does not apply to affirmative defenses”); Falley v. Friends University, 787 F. Supp.2d 1255, 1259 (D. Kan. 2011) (“Applying the Twombly standard, therefore, would likely result in increased motions practice with little practical impact on the case’s forward progression.”); Lane v. Page, 272 F.R.D. 581, 591 (D.N.M. 2011) (“[n]either the text of the rules nor the Supreme Court’s decisions in [TwIqbal] require the Court to extend the pleading standard from those cases to affirmative defenses”).

Eleventh Circuit

Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 186 F. Supp.3d 1370, 1374 n.1 (N.D. Ga. 2016) (“this Court has declined to extend the pleading requirements of Twombly to affirmative defenses”); Tomason v. Stanley, 297 F.R.D. 541, 544-45 (S.D. Ga. 2014) (“This Court therefore declines to import Twombly’s heightened pleading standard into the Rule 8(c) arena.”); Weekes-Walker v. Macon County Greyhound Park, Inc., 877 F. Supp.2d 1192, 1211-12 (M.D. Ala. 2012) (“the plausibility pleading standards of [TwIqbal] do not apply to affirmative defenses”); EEOC v. Joe Ryan Enterprises, Inc., 281 F.R.D. 660, 662-64 (M.D. Ala. 2012) (“[TwIqbal] do not apply to the pleading of affirmative defenses”); Jackson v. City of Centreville, 269 F.R.D. 661, 662-63 (N.D. Ala. 2010) (“Neither Twombly nor Iqbal address Rules 8(b)(1)(A) and 8(c) which pertain to affirmative defenses.”; “this Court does not agree with the magistrate that heightened pleading standards apply to affirmative defenses”) (reversing Magistrate); Bartronics, Inc. v. Power-One, Inc., 245 F.R.D. 532, 537 n.5 (S.D. Ala. 2007) (“Nothing in [Twombly] would appear to require more detailed pleading of affirmative defenses”).

District of Columbia Circuit

Moore v. United States, 318 F. Supp.3d 188, 193 (D.D.C. 2018) (“Two judges in this district have considered the issue and found that [TwIqbal] do not apply to affirmative defenses. This Court agrees.”); Paleteria La Michoacana v. Productos Lacteos, 905 F. Supp.2d 189, 190-93 (D.D.C. 2012) (“Imposing the plausibility requirement to affirmative defenses would be a sea change for this court’s practitioners; absent any compelling need for such a change, the court will leave Rule 8(c) undisturbed.”).

As for these quotes, we note that, as with the previous quotations, a lot of our quotes in the string-cite opinions omit internal quotes and citations.

*          *          *          *

Moreover, these cases (with one exception) are only the opinions on TwIqbal and defenses that have found their way into F. Supp. and F.R.D.  There are probably ten times as many unpublished decisions – which overwhelm even our appetite for research.  The basic search we used turned up 267 published cases (not all of which, of course, were relevant), but also 2,962 unpublished cases.

To take one example (and the only time we’re researching like this), we didn’t find a single published no-TwIqbal decision from Missouri (although there is Fleishour v. Stewart Title Guaranty Co., 640 F. Supp.2d 1088, 1090 (E.D. Mo. 2009) (“the pleading requirements under the Federal Rules simply do not require a statement of the facts necessary to support the defense”), which is hard to find because it doesn’t actually cite TwIqbal).  We’re trying to change this, but in any event, there are a raft of unpublished Missouri opinions to this effect:  See Arbogast v. Healthcare Revenue Recovery Group, 2018 WL 3643416, at *3 (E.D. Mo. Aug. 1, 2018) (“the Court finds that the pleading standards articulated in [TwIqbal] do not apply to affirmative defenses”); Westmoreland v. Medtronic, Inc., 2018 WL 3617315, at *2 (E.D. Mo. May 14, 2018) (“Courts in this District have rejected, with respect to affirmative defenses, the ‘plausibility’ standard”); Swinter Group, Inc. v. Nationwide Truckers’ Insurance Agency, 2018 WL 306024, at *4-5 (E.D. Mo. Jan. 5, 2018) (“This Court is in agreement with those courts that have found that the pleading standards articulated in [TwIqbal] do not apply to affirmative defenses”); Construction Industry Laborers, Pension Fund v. Wellington Concrete, LLC, 2016 WL 1275605, at *3 (E.D. Mo. March 31, 2016) (“affirmative defenses and avoidances are not subject to the same pleading standards as claims for relief”); FTC v. BF Labs Inc., 2015 WL 12806580, at *2 (W.D. Mo. Aug. 28, 2015) (“find[ing] that [TwIqbal] do not apply to affirmative defenses”); Consumer Financial Protection Bureau v. Moseley, 2015 WL 12834015, at *1 (W.D. Mo. May 26, 2015) (“the pleading requirements set forth in [TwIqbal] do not apply to affirmative defenses”); Florilli Transportation, LLC v. Western Express, Inc., 2015 WL 12838149, at *1 (W.D. Mo. Feb. 20, 2015) (“the pleading requirements articulated in Twombly do not apply to affirmative defenses”); Herbst v. Ressler & Assocs., Inc., 2014 WL 4205294, at *8 (E.D. Mo. Aug. 22, 2014) (“Under Rule 8, the pleader of an affirmative defense need only ‘state’ the defense, but need not ‘show’ anything”) (quoting 2 Moore’s Federal Practice §8.08[1] (3d ed. 2014)); Certain Underwriters at Lloyd’s v. SSDD, LLC, 2013 WL 6801832, at *8 (E.D. Mo. Dec. 23, 2013) (“a more lenient standard applies to affirmative defenses”); CitiMortgage, Inc. v. Just Mortgages, Inc., 2013 WL 6538680, at *8 (E.D. Mo. Dec. 13, 2013) (“affirmative defenses are not required to be initially pled according to the plausibility standard”); Baustian v. Fifth Third Bank, 2013 WL 6243857, at *2 (E.D. Mo. Dec. 3, 2013) (“the plausibility standard does not apply to affirmative defenses”); Hayden v. United States, 2013 WL 5291755, at *3 (E.D. Mo. Sept. 19, 2013) (“affirmative defenses ought not be required to be initially pled according to the plausibility standard required of claims”); United States ex rel. Health Dimensions Rehabilitation, Inc. v. RehabCare Group, Inc., 2013 WL 2182343, at *1 (E.D. Mo. May 20, 2013) (TwIqbal inapplicable to defenses); Southard v. City of Oronogo, 2013 WL 352943, at *2 (W.D. Mo. Jan. 29, 2013 (“the heightened pleading requirements set forth in [TwIqbal] do not apply to affirmative defenses”); CitiMortgage, Inc. v. Draper & Kramer Mortgage Corp., 2012 WL 3984497, at *3 (E.D. Mo. Sept. 11, 2012) (same); Willis v. Quad Lakes Enterprises, L.L.C., 2011 WL 3957339, at *2 (W.D. Mo. Sept. 7, 2011) (“The more heightened pleading standard set forth in [TwIqbal], therefore, does not apply to the pleading requirements for affirmative defenses”); Fluid Control Products, Inc. v. Aeromotive, Inc., 2010 WL 427765, at *3 (E.D. Mo. Feb. 1, 2010) (TwIqbal inapplicable to defenses, but not citing TwIqbal).

As the Missouri example demonstrates, anybody opposing a TwIqbal attack on their Rule 8(c) defenses will want to flesh out our collection of reported cases with additional support from unpublished cases involving the relevant district or circuit.  Fortunately, many of the published cases in our list also cite copiously to that unpublished precedent.

Finally, also of interest is a now-somewhat-dated law review article from 2013, William M. Janssen, “The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses,” 70 Wash. & Lee L. Rev. 1573 (2013), which – unlike us – collected decisions (through that date) on both sides of the issue. The article concluded:

[T]here is indeed today a national majority on the issue of Twiqbal’s applicability to affirmative defenses, but it is decidedly in the direction of refusing to apply “plausibility” to such pleadings.  If those opinions that sidestepped the issue are removed from the study, the resulting margin is more striking still − judges are rejecting Twiqbal for testing affirmative defenses by very nearly a two-to-one margin.

Id. at 1606.  Judging from what we’ve found since then, we think the percentages from the “Odd State” article have only grown more lopsided against TwIqbal applying to defenses. See Justin Rand, “Tightening Twiqbal:  Why Plausibility Must Be Confined to the Complaint,” 9 Fed. Cts. L. Rev. 79, 88 (2016) (“Left without guidance on this consequential issue, the majority of district courts initially answered it affirmatively − Twiqbal plausibility pleading was applied to affirmative defenses.  Yet, with the benefit of additional time, a growing majority of federal district courts has now declined to extend plausibility to affirmative defenses under Rules 8(b) and 8(c)”) (footnotes omitted).

In sum, we don’t like being harassed with bogus, make-work motions.  Our readers probably don’t either.  With this post, we hope to pass out the ammunition so that defendants can beat back these plaintiff-side arguments once and for all, and do so without having constantly to re-invent the wheel.

It would seem to go without saying that for a defendant to be liable for the purported “common-law” claim of failure to report adverse events to the FDA, there must actually be some adverse events that needed to be reported.  One would think so, but certain California breast implant plaintiffs (yes, some still exist) would beg to differ – at least they did before the recent decision in Mize v. Mentor Worldwide LLC, No. BC649083, slip op. (Cal. Super. Oct. 1, 2018).

One problem that that current breast implant litigants face that their more numerous predecessors did not is preemption.  All that earlier litigation caused the FDA to upclassify breast implants to Class III, pre-market approved devices, and PMA means preemption.

In California, that also means the filing of half-baked, failure-to-report claims that no self-respecting plaintiff would otherwise bring, as a way to allege something that gets around preemption.  Trouble is, these breast implant plaintiffs can’t even allege that the defendant didn’t report any adverse incidents.  Even what plaintiff did allege was notably speculative:

Plaintiff now has alleged, however, that if [defendant] had reported additional adverse incidents subsequent to 2000, and if the FDA had made such incidents public, and if Plaintiff’s doctors had been aware of such reports, Plaintiff’s doctors might have provided an earlier diagnosis leading to earlier surgery to remove the implants and Plaintiff’s damages . . . might have been lessened.

Slip op. at 5. That’s a lot of “what ifs” piled on top of “what ifs,” but this plaintiff couldn’t even get to that.

There weren’t any unreported adverse events.

So the plaintiff tried to make them up.

The entire questionable “causal chain” wasn’t based on any known, but unreported, events at all, but rather on allegations about how studies were conducted:

[I]t is premised on [defendant’s] failure to report adverse incidents that were not detected because of how [defendant] conducted the studies rather than on a failure to report adverse incidents that actually occurred.

Id.  Even for a liberal jurisdiction, that was just too much.  There must be something that actually wasn’t reported.

Because Plaintiff has failed to allege facts showing that [defendant] failed to report actual adverse events that in fact occurred, the failure to warn (failure to report adverse events) claim is preempted because plaintiff has failed to allege how [defendant’s] actions in conducting these studies violated federal law.


While the Mize court “adopted the reasoning” of Ebrahimi v. Mentor Worldwide LLC, 2017 WL 4128976 (C.D. Cal. Sept. 15, 2017) – a case we discussed hereMize was really a step into fantasy beyond even Ebrahimi.  As pleaded, Ebrahimi at least involved allegations that (vaguely) alleged that events weren’t reported.  Mize didn’t.  She seems to have been alleging that the defendant was obligated to conduct studies in a way that maximized the number of reportable adverse events.  That “duty” is, of course, contrary to tort policy and medical ethics, both of which seek to reduce, not increase, product injuries.

The plaintiff in Mize also tried to allege a “manufacturing defect,” but that didn’t fare any better.  Lacking any direct evidence, plaintiff tried to rely on “allegations that supported . . . [a] 1998 Consent Decree.” Slip op. at 3.  But plaintiff’s implant wasn’t manufactured until at least two years after that decree, and the decree itself was “evidence of a promised change in practices,” so the decree could not be evidence of any defect in the device implanted in the plaintiff.  Id.  Again, simple logic seems beyond the plaintiff in Mize.

Finally, the Blog wishes to express its appreciation to Dustin Rawlin, of Tucker Ellis, and his team of, Peter Choate, Monee Hanna and Allison Burke, who not only won the case, but were thoughtful enough to send it along to us.  Keep up the good work.

Not too long ago we read a non-drug/device decision, Hale v. State Farm Mutual Automobile Insurance Co., 2018 WL 3241971 (S.D. Ill. July 3, 2018), which left us shaking our heads.  How this suit could not be a blatant First Amendment violation is beyond us.

But that’s not really the point of this post.

The alleged “facts” are downright bizarre:  The plaintiffs were sore losers in previous litigation against the same defendant.  They had managed, through the use of now-discredited legal gamesmanship – a nationwide class action involving the extraterritorial application of the Illinois consumer protection statute – to obtain a verdict of over a billion dollars on claims involving State Farm and allegedly inferior replacement parts used in car repairs.  Thankfully, plaintiffs couldn’t hold it.  In Avery v. State Farm Mutual Automobile Insurance Co., 835 N.E.2d 801 (Ill. 2005), the court rejected extraterritoriality and nationwide consumer fraud class actions. Id. at 855 (“we conclude that the circuit court erred in certifying a nationwide class that included class members whose claims proceedings took place outside Illinois”).  The nominal vote was 4-2, with one justice not participating, but even the dissent agreed on this issue.   Id. at 864 (“I agree with the ultimate result reached by my colleagues − I, too, would find that the circuit court erred in certifying the nationwide class”) (concurring and dissenting opinion).  There were a slew of other issues in this contentious case, but with rejection of the nationwide extraterritorial class, any basis for the boxcar, billion-dollar verdict disappeared.

But plaintiffs (or their lawyers) didn’t give up.  Instead they filed a RICO action alleging that State Farm was “racketeering” when it gave large amounts of campaign contributions – Hale contains nothing to suggest that any state-law campaign finance violations were involved − to support the election of a particular “pro-business” candidate to the Illinois Supreme Court, while the Avery appeal was pending:

In essence, plaintiffs allege that defendants secretly recruited [the candidate] to run for an open seat on the Illinois Supreme Court, where the Avery . . . appeal was pending; that defendants organized and managed his campaign behind the scenes; that defendants covertly funneled millions of dollars to support his campaign through intermediary organizations over which [defendants] exerted considerable influence.

Hale, 2018 WL 3241971, at *1.  You get the drift.  Next came the predictable allegations that everything was covered up so no recusal occurred.  Id.  The new justice supposedly “broke” a “deadlock” – yeah, right, in a case where the main result was unanimous − and “voted to overturn the judgment.”  Id.  All this purportedly nefarious politicking supposedly “deprived [plaintiff plaintiffs] of their constitutionally-guaranteed right to be judged by a tribunal uncontaminated by politics.”  Id.

It’s not the point of this post to debate the intricacies of RICO causation, damages, or enterprises.  We don’t think Hale should ever have gone that far.  We’ve previously advocated the First Amendment protection of purely scientific speech, because we don’t believe that one side to a scientific debate should be allowed to sue the other into submission.  That was our primary interest when Citizens United v. Federal Election Com’n, 558 U.S. 310 (2010), was handed down.  We frankly didn’t dream that core political speech of the sort at issue in Hale could give rise to private prosecutions under RICO.

But be that as it may. If it’s open season on the opposition’s campaign contributions, can the defense side play, too?  After all, in most judicial elections, contributions from the defense are dwarfed by what our politically minded adversaries are able to raise and spend.  It’s no secret.  Here, for example, is the “Campaign Finance Online Reporting” of the Pennsylvania Secretary of State.  You can type in the name of your most (or least) favorite judge and relevant election year and see everybody from whom s/he reported receiving contributions.  Or you can click on “contributions made” and track the donations by your favorite plaintiffs’ lawyer or firm.  Our clients have just as much of a “constitutionally-guaranteed right to be judged by a tribunal uncontaminated by politics” as do plaintiffs.  Are there RICO violations here?

But maybe that’s not enough.  Perhaps it’s too diffuse to assert a RICO violation just because the other side’s contributions made up 90%+ of the total contributions to a particular judge sitting on a particular case.  Maybe there needs to be a “pending” matter to focus things more precisely.  Still, our side might be able to play.  Consider all of those “civil enforcement” actions nominally brought by cities, counties, and states against our clients – where the real vigorish goes to the contingent fee, private counsel brought in to prosecute the action for the government.  We’ve complained about those actions, as well, without much success.  If it turns out that contingent fee counsel (or those acting in concert with counsel) made large political contributions to the particular politicians who later authorized the filing of one of those suits against a client, does the client have a RICO counterclaim under the same rationale as Hale?

Our bottom line is that suits like Hale are abuses of the judicial system and attempts to sue over the other side’s First Amendment protected political activity.  We’re, frankly, shocked that Hale survived summary judgment.  But if plaintiffs insist on opening up that Pandora’s Box, our side should consider whether it wants to play, too.