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Pennsylvania Fire cannot be divorced from the outdated jurisprudential assumptions of its era.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.

Alabama

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

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.

Arizona

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

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

*          *          *          *

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

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

Lemaire distinguished a prior decision, Bohreer v. Erie Insurance Exchange, 165 P.3d 186, 187-92 (Ariz. App. 2007), as based on an insurance statute.  395 P.3d at 1118.  Bohreer had “agree[d]” with now overruled (see Delaware) Sternberg decision.  165 P.3d at 192.  Arizona federal 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.

Arkansas

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

California

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

Colorado

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

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

Connecticut

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

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

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

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

Id. at 640.

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.

Delaware

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

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

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

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

Id. at 143 (footnotes omitted).

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

District of Columbia

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

Florida

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

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

Georgia

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

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

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

Illinois

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

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

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

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

Indiana

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

Iowa

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

Kansas

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

Kentucky

The issue of consent-based jurisdiction through registration to do business or designation of an agent is uncertain in Kentucky, because the statute, Ky. Rev. Stat. Ann. §14A.4-010, provides no guidance, and 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

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

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

Maryland

Maryland’s statutory framework eliminates consent through registration as a basis for general jurisdiction.  See Md. Code Ann., Corps. & 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.

Massachusetts

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

Michigan

The Michigan Supreme Court held decades ago that:

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

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

Minnesota

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

Ally Bank v. Lenox Financial Mortgage Corp., 2017 WL 830391 (D. Minn. March 2, 2017), upheld consent through a registration as valid form of general jurisdiction, following Knowlton, and distinguishing Bauman as “address[ing] the limits of general jurisdiction over a foreign corporation, not the limits of a defendant’s capacity to consent to personal jurisdiction.”  Id. at *3.  For other Minnesota post-Bauman applications of jurisdiction by consent under Knowlton, 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

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.

Missouri

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

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

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

Numerous post-Bauman lower state and federal courts have 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.

Montana

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

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

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

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

Id. at 8-9 (citations omitted).

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

Nebraska

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.

Nevada

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

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

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

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

Oklahoma is OK.

Oregon

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

Pennsylvania

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

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

*          *          *          *

(2) Corporations. −

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

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

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

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

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

Id. (citations omitted).

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

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

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

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

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

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

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

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

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

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

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

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

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

Puerto Rico

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

Rhode Island

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

South Carolina

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

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

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

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

South Dakota

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

Tennessee

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

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

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

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

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

Texas

Both state and federal Texas appellate courts have ruled that registration to do business does not amount to consent to jurisdiction.  Before Bauman, Conner v. ContiCarriers & Terminals, Inc., 944 S.W.2d 405 (Tex. App. 1997), held that, “[b]y registering to do business, a foreign corporation only potentially subjects itself to jurisdiction.”  Id. at 416 (emphasis original).  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

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

Vermont

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

Virginia

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

Virgin Islands

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

Washington

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

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

West Virginia

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

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

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

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

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

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

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

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

Wisconsin

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

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

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

Wyoming

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

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

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

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

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.

We have written a lot about personal jurisdiction. We certainly haven’t lacked for defense favorable decisions since Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). Its impact has been felt in many contexts – class actions, innovator liability, litigation tourism. And, as we discussed in our post here, “stream of commerce” jurisdiction has also taken a significant hit post-BMS. Today we add another case to the growing precedent that “purposeful availment” rather than the “fortuitous” conduct of third persons is (i) a difficult standard to meet and (ii) is required to establish jurisdiction.

In Morgan v. Trokamed GmbH, 2018 WL 4388457, at *1 (W.D. Wis. Sep. 14, 2018), plaintiff, a citizen of Wisconsin, sued the German manufacturer and the North American distributor of a Class II medical device used in laparoscopic surgery. The manufacturer moved to dismiss for lack of personal jurisdiction and both the plaintiff and the distributor opposed. It was undisputed that the manufacturer had no offices or employees in Wisconsin, no representative of the manufacturer had ever visited Wisconsin, and the manufacturer doesn’t ship products to Wisconsin. Id. at *2. So, for plaintiff to make a prima facie showing of specific jurisdiction, she had to show that the German company had “purposefully availed” itself of conducting business in Wisconsin. The court analyzed each of plaintiff’s allegations of contact.

Exclusive distribution agreement: Plaintiff’s first argument was a straight-forward stream of commerce theory. The manufacturer gave the distributor exclusive rights to sell the manufacturer’s medical devices in the U.S., Canada, and Mexico. Based on that, the manufacturer should have reasonably expected its products to be sold in all 50 states. Id. But, as the court points out, that’s the same argument made by Justice Ginsburg in her dissent in J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011). But, the plurality (Kennedy, J.) and concurring (Breyer, J.) opinions found nationwide transmission insufficient to confer jurisdiction tethered only to a prediction that a defendant should have known its product would reach a specific state. Id. at *3.

Plaintiff tried to distinguish Nicastro by arguing that the manufacturer here exhibited more control over the distributor, but the court found nothing in the distribution agreement that showed targeting of Wisconsin particularly. The agreement covered the U.S. as a whole and did not direct the distributor to sell the devices in Wisconsin which is “the type of control that matters under a personal jurisdiction analysis.” Id. at *4.

Sales Volume: Plaintiff next tried to distance herself from Nicastro by pointing out that the plurality and the concurrence relied on the small number of sales of the product to New Jersey in deciding personal jurisdiction was lacking. Id. But, plaintiff here could only identify 2 sales of the manufacturer’s medical device in Wisconsin. Id. So, she focused on disposable components (blades and valves) of the device that she claims the distributor “regularly” sent to Wisconsin. This argument failed for several reasons, including that plaintiff neglected to produce any evidence that the components were manufactured by the German defendant. Id. at *5. Plaintiff also doesn’t allege that her injury had anything to do with the component parts, “so those sales would have a more tenuous connection with her claims.” Id. Finally, plaintiff still had no evidence that the manufacturer was aware it had customers in Wisconsin at the relevant time. Plaintiff alleged that the manufacturer became aware of its Wisconsin customers in 2015, but plaintiff “does not explain how knowledge that [the manufacturer] had in 2015 could serve as the basis for an exercise of jurisdiction for a claim arising out of 2014 injury ad a [device] sale made years earlier.” Id.

             Instructions for Use: Relying on Justice Breyer’s concurrence in Nicastro that offering “special state-related . . . advice” might be enough to confer jurisdiction, plaintiff alleged that the manufacturer “established channels of advice” via its warranty and Instructions for Use. Id. at *6. What plaintiff missed, however, is that the instructions “direct the customer to send the device to [the distributor] for repairs,” the instructions have the distributors contact information and logo, and state that the device is a product of the distributor. “No one reading the [instructions] would know that he or she should contact [the manufacturer] for any reason.” Id. at *7.

FDA Approval: Perhaps the most significant part of the opinion is the court’s conclusion that “the process for FDA approval does not provide a basis for exercising jurisdiction in a particular state.” Id. We’ve talked about this in the context of innovator liability, where the innovator may be the NDA holder, but they didn’t sell or distribute the product used by plaintiff. If the brand defendant didn’t sell the product at issue, but rather a different product to different people, and FDA-approval isn’t enough – what’s left on which to base specific jurisdiction?

Plaintiff also tried to use post-approval FDA communications to establish purposeful contacts. In response to a request from the FDA, the manufacturer had its distributor update all the instructions and send them to all customers. During this process, the manufacturer received a list of all of the U.S. customers for its devices. Id. at *8. Not only did this process take place after plaintiff’s alleged injury (after the relevant time period), it still relates only to the manufacturer’s contacts with the U.S. as a whole, not with Wisconsin. Id.

The bottom line: The facts alleged by [plaintiff], may reveal an intent to serve the U.S. market, but they do not show that [the manufacturer] purposefully availed itself of the [Wisconsin] market. Id. at *9 (quoting Nicastro).

For at least forty years we’ve been hearing that soccer is going to supplant baseball, basketball, or football among America’s top three sports.  It hasn’t happened.  Maybe we heirs of Washington, Jefferson, Ruth, Rice, and Chamberlain have limited enthusiasm for one-nil scores and players diving and mimicking death throes in a cheap effort to extract a penalty kick.


Meanwhile, we have seen boxing subside in the country’s consciousness, bullied out of the way by mixed martial arts (MMA). It’s hard to believe one of those M’s does not stand for mayhem.  Forget about the Marquis of Queensbury’s niceties.  In MMA, the contestants are free to kick, choke, and elbow each other.  Hit a man when he’s down?  That’s not forbidden in MMA. Nope, that’s when the action is just getting started.  Pretty much anything goes in MMA.  
But you cannot use anabolic steroids.  If you test positive, you get suspended.  Rules are rules.  

The plaintiff in In re Lyman Good Dietary Supplements Litigation, 2018 U.S. Dist. LEXIS 131668 (SDNY Aug. 6, 2018), was an MMA fighter who was suspended because he tested positive for a banned substance.  The court employs the short-hand reference “andro” for the banned substance, and so shall we.  The plaintiff claimed that he had unknowingly ingested andro that was present in two dietary supplements that had been labeled to be free of any banned substances. The plaintiff alleged that the manufacturers and sellers of the dietary supplements promised that the products were “safe,” “without the use of banned substances,” “banned substance free,” and in compliance with “strict quality assurance procedures.”  The presence of andro broke such promises, and the plaintiff’s career had suffered a serious bruise. The plaintiff sued the manufacturers, high ranking executives at the manufacturers, and the retailer. The causes of action were interesting, including some you’d expect (breach of warranties, fraud, deceptive practices, false advertising, negligence, and strict liability) and some you wouldn’t (intentional infliction of emotional distress, assault and battery).  The defendants moved to dismiss and ended up winning more than they lost.

The court dismissed the claims for fraud, assault and battery, and intentional infliction of emotional distress.  Fraud claims are subject to heightened pleading requirements, which the complaint didn’t come within a puncher’s chance of satisfying. All we get are general allegations of fraudulent intent, along with generalized motive to earn profits.  That isn’t nearly enough.  The court applied a rear naked choke to the fraud claim and counted it out.  The assault and battery claim was a wild swing and miss.  The plaintiff’s theory was that putting a substance in someone’s body without consent is battery, but there was no case support for that, plus the plaintiff never alleged the requisite intention to inflict injury.  Here comes a reverse guillotine, and watch the court slice off the assault and battery claims.  Lack of intent is also what doomed the claim for intentional (or reckless) infliction of emotional distress.  The court also could identify no alleged outrageous conduct that went “beyond all possible bounds of decency.”  (To be sure, when one is dealing with MMA, it might seem difficult to meet that standard.) 

The court dismissed the claims against the executives, both on the merits and for want of personal jurisdiction.  Suing executives is fairly rare, and there are reasons for that.  Piercing the corporate veil requires a showing that the executives exercised compete domination and disregarded corporate formalities, including use of corporate funds for personal purposes.  At most, the complaint alleged that the individual defendants were high-level officers with wide-ranging authority, but an officer or director is not personally liable for the torts of a corporation merely by reason of occupying an important office.  The complaint utterly failed to allege that the executives used corporate domination to perpetrate a fraud.  In any event, there was no personal jurisdiction over the individuals.  They all had general authority over their corporations, but were not the primary drivers of the particular transactions in New York that gave rise to the litigation.  Hello sleeper hold, and good-bye claims against the individual defendants.  

The retailer prevailed on most of its motions to dismiss.  The claims for implied warranty of fitness for particular purpose, express warranty, and false advertising were carried out of the ring, but the claim of implied warranty of merchantability emerged unscathed.   The only express warranty by the retailer listed in the complaint was a statement in its 10-K annual report that the company used quality control procedures and that it refused to sell products that did not comply with law or were unsafe.  Those representations are pretty general, and the plaintiff did not even claim to have read them or relied upon them prior to purchase.  Nor did the annual report constitute a form of advertisement.  The court granted the plaintiff leave to amend the claim for implied warranty of fitness for particular purpose because, even though the complaint was bereft of any assertions that the plaintiff and the store had any conversations about how the plaintiff would use the supplements to prepare for MMA combat, the plaintiff wanted to add six paragraphs alleging precisely such conversations.  If such conversations did take place, it would not be “outside the realm of reasonable knowledge” that professional competitions require drug testing.   Thus, the particular purpose warranty claim might live to fight again.

The opinion in Lyman Good is solid and clear.  It goes through the different causes of action and defendants one-by one, jab by jab.  It reminds us that MMA is not the only place where rules are rules.

These days, when the subject turns to victorious Philadelphia sports teams, most people think green, and “fly” and “Philly Special.” But we are not most people.  We live firmly and fondly in the past, 2008 to be exact.  So we relished every moment of our beloved Phillies’ Alumni Weekend this past weekend.  We cheered ourselves hoarse as a beloved former centerfielder, under a one-day contract, “retired as a Phillie.”  (Mahalo, “Flyin’ Hawaiian.”) And we, along with 35,000 of our closest friends, wept as the widow of our 2008 ace spoke to the crowd on the occasion of her late husband’s enshrinement on the Phillies’ “Wall of Fame.”   (R.I.P., “Doc.”)  And finally, as the members of the 2008 World Champion Phillies marched out to be honored, we allowed ourselves to be transported back to the ecstatic aftermath of our closer’s final slider in a perfect save season.  For sure, victory is sweet.

As it has been, six times now, in post-BMS personal jurisdiction decisions out of the Essure litigation.  In Hinton v. Bayer Corp., 2018 WL 3725776 (E.D. Mo. July 27, 2018), ninety-four plaintiffs from thirty different states filed a joint complaint in a Missouri state court, alleging that they were injured by the defendant’s birth control device.  The defendant removed the case to the Eastern District of Missouri on the basis of diversity jurisdiction.  Of the ninety-four plaintiffs, only thirteen were Missouri residents.  Some of the non-Missouri residents were not diverse to the defendant; however, the defendant moved to dismiss and sever the claims of the non-Missouri plaintiffs before the court ruled on subject matter jurisdiction (and remanded for lack of complete diversity).   The plaintiffs moved to stay determination of the motions to dismiss pending determination of subject matter jurisdiction, but the court declined, explaining that “addressing [the defendant’s] challenge to personal jurisdiction over the claims of the non-Missouri plaintiffs presents the more straightforward inquiry” under recent precedent, justifying a decision to deviate from the usual course of deciding subject matter jurisdiction ahead of personal jurisdiction. Hinton, 2018 WL 3725776 at *2.   As the court emphasized, “Remanding this case for lack of complete diversity only to have the case removed again later once the non-Missouri plaintiffs are dismissed would be a waste of judicial resources.  Ruling [on] personal jurisdiction first is in the interests of judicial economy and expeditiousness.” Id. (citation omitted).

And so the court proceeded to address the defendant’s motion to dismiss the claims of the non-Missouri plaintiffs for lack of personal jurisdiction. The defendant conceded that the court had specific jurisdiction over it regarding the thirteen Missouri plaintiffs, but argued that the court did not have general jurisdiction over it and did not have specific jurisdiction over it with regard to the non-Missouri plaintiffs.  The plaintiffs did not argue that the court had general jurisdiction over the defendant; instead, they argued that the court had specific jurisdiction over the defendant with regard to the claims of all of the plaintiffs because the defendant had conducted “a number of clinical trials” in Missouri and had worked on regulatory approval for the product in Missouri, and because “St. Louis was one of eight cities targeted as part of a broader marketing plan to increase sales and revenue.” Id. at *3.

The court explained that, under BMS, specific jurisdiction depends on “an affiliation between the forum and the underlying controversy, principally [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Id. (citation to BMS omitted).  In this case, the plaintiffs did not see marketing in Missouri, did not purchase the product in Missouri, were not prescribed the product in Missouri, did not purchase the product in Missouri, and were not injured by the product in Missouri.  “Furthermore, none of the plaintiffs alleged that she participated in a Missouri clinical study or reviewed or relied on” such studies in deciding to use the product. Id. at *4.  As such, the court held, “Even assuming that discovery would prove exactly what Plaintiffs contend happened in Missouri with respect to . . . marketing and clinical trials, the individual plaintiffs’ claims are too attenuated from those activities to provide specific ‘case-linked’ personal jurisdiction.” Id. (citation omitted).   With no “connection between the forum and the specific claims at issue,” id. (citation to BMS omitted), the court held that it did not have jurisdiction over the claims of the eighty-one non-Missouri plaintiffs and dismissed all of those claims.

And so the defendant hit a figurative home run, expanding its already-prominent role in the elimination of litigation tourism in Missouri. We love this string of decisions, we love BMS, and we will keep you posted as its family of progeny continues to grow.

A few weeks ago, we reported on another in a line of Missouri appellate decisions rejecting the ability of Missouri courts to try the claims of non-Missouri residents against non-Missouri manufacturers of baby powder not used in Missouri.  The next day a jury in the same trial court awarded billions in a trial of 22 baby powder users. This was all part of a long saga of litigation tourism to the Show Me State.

It turns out that some plaintiffs prefer to go ever upwards with their baby powder claims in New York state court. We are not talking about New York residents suing in their friendly neighborhood court, we are talking about litigation tourists coming to the Big Apple with hopes of big awards. The problem–for them–is that New York state courts are supposed to apply personal jurisdiction according to the same standards that the Missouri appellate courts and the United States Supreme Court have been lately. We received two very similar decisions from a friend of the blog, Thomas Kurland of Patterson Belknap, that address personal jurisdiction for claims against the manufacturers of baby powder by people with no particular connection to where they were suing. The difference from the baby powder cases from Missouri and New Jersey that we have discussed before is that these plaintiffs claimed mesothelioma from asbestos allegedly in baby powder they had used.

The first case, Hammock v. Avon Prods., Inc., No. 190215/2016, 2018 WL 3601393 (N.Y. Super. Ct. July 27, 2018), has been published and came out a few days before the second, Crozier v. Avon Prods., Inc., No. 190385/2016 (N.Y. Super. Ct. July 31, 2018). The issues and analyses were almost identical, so we will discuss them together and skip pinpoint cites. The plaintiff in Hammock claimed exposure to the decedent from use of baby powder on herself, her children, and patients where she worked over the span of more than 35 years. All of the exposure, and any purchasing the decedent did, occurred in Virginia, where she lived. The plaintiff in Crozier claimed use of baby powder and a related cosmetic product when she was an infant and a teenager.  All use and purchasing of the products was in Texas, Oklahoma, and Kansas.

Both plaintiffs brought suit in New York state court against a number of defendants. We report on the motion in each case of the manufacturer and distributor of the baby powder, Johnson & Johnson Consumer Inc., and its holding company parent. Neither of those entities was incorporated in New York, had its principal place of business in New York, or was registered to do business in New York. The subsidiary did not manufacture or develop the baby powder in New York. Despite these facts, the plaintiff in each case claimed the court could exercise general personal jurisdiction over both entities or, at least, should allow jurisdictional discovery to proceed.

Based on a straightforward application of Bauman, Walden, and BMS, the court rejected both general and specific personal jurisdiction in each case. On general jurisdiction, each plaintiff pointed to “several isolated events that Johnson & Johnson was involved in (including industry meeting that Johnson & Johnson employees attended in the 1970s, four (4) letters sent from Johnson & Johnson representatives to New York-based scientists, and two statements make to the New York Times).” This was clearly not enough, as “isolated” is not a synonym for “continuous” or “systematic,” both of which are required for contacts to establish general personal jurisdiction. While it is not clear that either plaintiff even offered an argument on specific jurisdiction, the court went ahead and addressed that issue anyway. With all alleged exposure in each case hundreds of miles away from New York, “there is no articulable nexus or substantial relationship between the J&J Entities’ New York conduct and the claims asserted.” Holding off on dismissal to allow for jurisdictional discovery was also not in the cards as any discovery either plaintiff could seek would be futile.

We say the plaintiffs were sent packing, but the truth is that we do not know about the substance or disposition of any claims against other defendants—as there appear to be based on the captions. There may be other defendants, maybe even ones over which New York could exercise general personal jurisdiction, who are alleged to be liable for some separate asbestos exposure that allegedly caused the respective plaintiffs’ alleged injuries. While we may be accused of being defense hacks—we were so labeled just yesterday—we do see the difficulty of picking the right place to sue multiple defendants who are not residents of the plaintiff’s state. Suing in New Jersey, for instance, would have allowed the court to exercise jurisdiction over the New Jersey defendants, but maybe not over defendants from New York or somewhere else. Of course, if there really were acts by the defendants that arguable created liability in the states where these plaintiffs used products and live(d), then a Hammock case in Virginia and a Crozier case in Texas might not have been caught in jurisdictional snags. They probably would have been removed to federal courts, however, and been subject to substantive law and procedures the plaintiff lawyers wished to avoid. So, before you say we have something against New York or some other litigation tourism destination, think about whether the plaintiffs who hit the road are looking for a fair venue or a favorable one.

The other day Law 360 published a piece, “Bristol-Myers Unlikely To Shake Up Class Action Landscape,” which opined that, “in the end, the effect of Bristol-Myers on the national class action landscape is likely to be minimal.”  One basis for that conclusion was “[I]t is unlikely that a majority of federal appellate courts will find that Bristol-Myers applies in class action cases.”  To support that proposition, the article states:

To date, an apparent majority of district courts, including in the Eleventh, Fifth, Ninth and District of Columbia Circuits, have held that Bristol-Myers has no application to a class action, as opposed to a mass tort action.

The article cites: Becker v. HBN Media Inc., ___ F. Supp.3d ___, 2018 WL 3007922, at *2 (S.D. Fla. June 6, 2018) (“The Court is persuaded [that] . . . Bristol-Myers does not apply to class actions”); Sanchez v. Launch Technical Workforce Solutions LLC, 297 F. Supp.3d 1360, 1369 (N.D. Ga. 2018) (“Bristol-Myers simply reaffirms controlling due-process law and does not apply to federal class actions”); Molock v. Whole Foods Market, Inc., 297 F.Supp.3d 114, 126 (D.D.C. 2018) (“the court agrees with Plaintiffs and concludes that Bristol-Myers does not apply to class actions”); In re Morning Song Bird Food Litigation, 2018 WL 1382746, at *5 (S.D. Cal. March 19, 2018) (“the Court finds Bristol-Myers inapplicable to this suit which involves a class action”); Casso’s Wellness Store & Gym LLC v. Spectrum Laboratory Products Inc., 2018 WL 1377608, at *5 (E.D. La. March 19, 2018) (“the Court does not construe Bristol-Myers as barring its exercise of jurisdiction over the purported nonresident plaintiffs’ claims in the instant putative class action”).

As contrary authority, the article cites two cases: DeBernardis v. NBTY Inc., 2018 WL 461228, at *2 (N.D. Ill. Jan. 18, 2018) (“it is more likely than not based on the Supreme Court’s comments about federalism that the courts will apply BMS to outlaw nationwide class actions . . . where there is no general jurisdiction over the Defendants”), and Wenokur v. AXA Equitable Life Insurance Co., 2017 WL 4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017) (“The Court . . . lacks personal jurisdiction over the claims of putative class members with no connection to Arizona”).

We found that sort of odd, as in our last look at this issue – way back on January 26, 2018 – found the caselaw to stand at 12-2 in favor of applying Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), to curtail multi-jurisdictional class actions where the effect of certification would be a class of non-resident plaintiffs suing a non-resident corporate defendant.  None of the cases cited in the 360 article as restricting BMS due process principles was decided at that point, whereas both of the cases extending BMS due process to all state-law litigation had been and therefore were cited in our prior post.

Could the law really have shifted so drastically over the last few months?

The answer is no.

The first thing we need to do is not compare apples and oranges.  This blog is concerned, first and foremost, with product liability litigation.  That means we’re interested mostly in litigation that has its roots in state – not federal – law and is in federal court due to diversity jurisdiction.  Thus, our most recent post was about “the issue of BMS and nationwide class actions under state law.”  Our previous post likewise examined “our prediction . . . that personal jurisdiction would become a major obstacle to nationwide class actions based on state laws.”  The emphasis added in both instances is to underscore that we’re not concerned with class action litigation brought under federal statutes.  We have a separate post examining the caveat in BMS about federal Due Process under the Fifth Amendment.  Our main takeaway from that post is that due process in diversity cases is analyzed under the Fourteenth Amendment as construed in BMS.

Of the six cases cited in the 360 article, 3½ involved federal statutory claims:  Becker, 2018 WL 3007922 (Telephone Consumer Protection Act), Sanchez, 297 F. Supp.3d 1360 (Fair Credit Reporting Act), Casso, 2018 WL 1377608 (Telephone Consumer Protection Act), and Morning Song Bird, 2018 WL 1382746 (RICO & state consumer protection statutes).  So right there, we subtract three of the six from the article’s list because they don’t involve what we care about.  We also chide the court in Morning Song Bird for failing to distinguish between the state and federal claims in its analysis.

By contrast, almost all (but two) of the cases we cited in our prior posts involve state-law causes of action:

In favor of applying BMS to state-law class actions:

DeBernardis v. NBTY, Inc., 2018 WL 461228 (N.D. Ill. Jan. 18, 2018) (consumer protection); LDGP, LLC v. Cynosure, Inc., 2018 WL 439122 (N.D. Ill. Jan. 16, 2018) (consumer protection and common law); McDonnell v. Nature’s Way Products, LLC, 2017 WL 4864910 (N.D. Ill. Oct. 26, 2017) (consumer protection); Wenokur, 2017 WL 4357916 (D. Ariz. Oct. 2, 2017) (insurance); Spratley v. FCA US LLC, 2017 WL 4023348 (N.D.N.Y. Sept. 12, 2017) (economic loss product liability); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147 (E.D. Pa. July 24, 2017) (consumer fraud); Famular v. Whirlpool Corp., 2017 WL 2470844 (S.D.N.Y. June 7, 2017) (consumer protection and warranty); Demedicis v. CVS Health Corp., 2017 WL 569157 (N.D. Ill. Feb. 13, 2017) (consumer fraud); Bauer v. Nortek Global HVAC LLC, 2016 WL 5724232 (M.D. Tenn. Sept. 30, 2016) (economic loss product liability); Matus v. Premium Nutraceuticals, LLC, 2016 WL 3078745 (C.D. Cal. May 31, 2016) (consumer protection); Demaria v. Nissan N.A., Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016) (consumer protection).

Opposed to applying BMS to class actions:

In re Chinese-Manufactured Drywall Products Liability Litigation, 2017 WL 5971622 (E.D. La. Nov. 30, 2017) (product liability); Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2017 WL 4224723 (N.D. Cal. Sept. 22, 2017) (consumer protection).

So, before we commence any new research of our own, the tally is 11 (2d, 3d 6th, 7th, & 9th Circuits) to 4 (5th, 9th & DC Circuits) in favor of applying a single due process standard to personal jurisdiction questions to all courts applying state law.

The research isn’t hard to do.  Look at all cases that cite BMS and mention “class action,” and separate the wheat (state-law claims) from the chaff (everything else).

We found six additional cases supporting application of BMS due process principles to state-laws class actions not cited in the 360 article.  In an OTC drug case, the court declared:

Nothing in Bristol-Myers suggests that it does not apply to named plaintiffs in a putative class action; rather, the Court reaffirmed a generally applicable principle − that due process requires a “connection between the forum and the specific claims at issue.”  That principle applies whether or not the plaintiff is a putative class representative.

Al Haj v. Pfizer Inc., 2018 WL 1784126, at *6 (N.D. Ill. April 13, 2018).  In Chavez v. Church & Dwight Co., 2018 WL 2238191 (N.D. Ill. May 16, 2018), a food-related, consumer fraud action, the court determined that “[n]othing in Bristol-Myers suggests that its basic holding is inapplicable to class actions; rather, the Court announced a general principle − that due process requires a ‘connection between the forum and the specific claims at issue.”  Id. at *10 (citation and quotation marks omitted).  Chavez also rejected the notion that absent class members should simply be ignored:

Further, the Court is unpersuaded by the reliance of some district courts on the fact that the citizenship of unnamed class members is disregarded for purposes of determining diversity − that is, subject matter − jurisdiction.  The question here is not whether this Court has subject matter jurisdiction, but whether, consistent with due process, this Court may exercise specific personal jurisdiction over a defendant with regard to claims that have no connection with this state beyond their similarity to claims asserted by other plaintiffs who are residents of this state.

Id. at *11. See Hickman v. TL Transportation, LLC, 2018 WL 3388307, at *7 & n.2 (E.D. Pa. July 12, 2018) (“Plaintiffs have not presented any reason for distinguishing Bristol-Myers from this [state-law] action”; distinguishing federal-law class actions); In re Samsung Galaxy Smartphone Marketing & Sales Practices Litigation, 2018 WL 1576457, at *2 (N.D. Cal. March 30, 2018) (dismissing non-resident named plaintiffs under BMS); Anderson v. Logitech, Inc., 2018 WL 1184729, at *1 (N.D. Ill. March 7, 2018) (“[A] nationwide class action is not significantly different from a mass tort suit involving a multitude of individual claims.  The putative nationwide class action claims are stricken.”); Howe v. Samsung Electronics America, Inc., 2018 WL 2212982, at *4 (N.D. Fla. Jan. 5, 2018) (“Rule 23 does not expand a court’s personal jurisdiction over a defendant.  Absent a statute providing otherwise, a defendant who is not subject to personal jurisdiction on an individual claim also is not subject to jurisdiction on a class-action claim.”).

What about additional courts refusing to apply BMS to state-law class actions?

Zero, zilch, nada.

Beyond the 3½ cases in the 360 article, we found nothing – at most, plaintiffs managed to delay consideration of personal jurisdiction until some later time, such as class certification.  E.g., Blitz v. Monsanto Co., 2018 WL 1785499, at *2 (W.D. Wis. April 13, 2018).

So the tally now stands at 17 (from the 2d, 3d 6th, 7th (lots), 9th & 11th Circuits) to the same 4 (5th, 9th & DC Circuits).

Moreover, even as to federal statutory class actions, it’s breakeven, at best for class action plaintiffs seeking to evade BMS.  Our additional results are:

Pro-BMS:  Practice Management Support Services, Inc. v. Cirque du Soleil, Inc., 301 F. Supp.3d 840, 864-66 (N.D. Ill. 2018); Garcia v. Peterson, No. CV H-17-1601, 2018 WL 3496740, at *8 (S.D. Tex. July 20, 2018); America’s Health & Resource Center, Ltd. v. Promologics, Inc., 2018 WL 3474444, at *4 (N.D. Ill. July 19, 2018); Jackson v. Bank of America, N.A., 2018 WL 2381888, at *6-7 (W.D.N.Y. May 25, 2018); Horowitz v. AT&T, Inc., 2018 WL 1942525, at *15-16 (D.N.J. April 25, 2018).  That’s five additional cases.

Anti-BMSGarcia v. Peterson, ___ F. Supp.3d ___, 2018 WL 3496740, at *8 (S.D. Tex. July 20, 2018); Tickling Keys, Inc. v. Transamerica Financial Advisors, Inc., 305 F. Supp. 3d 1342, 1350-51 (M.D. Fla. 2018); Morgan v. U.S. Xpress, Inc., 2018 WL 3580775, at *5-6 (W.D. Va. July 25, 2018); Weisheit v. Rosenberg & Assocs., LLC, 2018 WL 1942196, at *5 (D. Md. April 25, 2018).  Four more cases.

We strongly agree, however, with the second premise of the 360 article, that BMS might not have much additional overall effect because it is already “extremely difficult” for plaintiffs to pursue multi-state class actions under the predominance criteria of Rule 23.  Indeed, the recent opinion in Langan v. Johnson & Johnson Consumer Cos., ___ F.3d ___, 2018 WL 3542624 (2d Cir. July 24, 2018), underscores precisely that point:

We are not convinced that the district court here undertook the requisite considered analysis of the variations in state law and the potential need for subclasses that might result from those variations. Although both parties submitted complicated and conflicting summaries of the state consumer protection laws in eighteen states, the district court’s analysis consisted of one paragraph.  In that paragraph, it is our view that the district court did not sufficiently engage with [defendant’s] arguments about reliance, instead concluding that “it appears” that none of the states’ high courts have insisted on reliance. The other identified differences − including whether intent to deceive is required, and whether causation can be presumed − were not discussed. . . .  We believe that more precise and greater depth of analysis is required to comport with the “close look” required by the precedent.  Accordingly, we remand the case to the district court to conduct a more thorough analysis.

Id. at *8 (citations omitted).

The practical difference is, however, significant.  Dismissal for lack of personal jurisdiction is a Rule 12 motion, which may be made before a defendant has to incur the time and expense of discovery.  Application of BMS to class actions is largely a legal question, so we on the defense side have an obligation to our clients to try to get rid of as much of a case as possible as early as possible.  So even if the net result wouldn’t be much different, we’d rather not have to wait until Rule 23 comes into play.

We’ve heard that we should welcome some new subscribers, who aren’t that interested in drug and device litigation, per se, but have been attracted by our coverage of personal jurisdiction issues relating to tort litigation generally.  Thanks for joining.  Here is a brief description of our available personal jurisdiction resources.

First, we maintain a personal jurisdiction “cheat sheet.”  Because we don’t believe in doing the other side’s work for them, a cheat sheet contains only decisions with favorable results for defendants.  The current cheat sheet contains a complete list of decisions rejecting so-called “jurisdiction by consent” going back to the 1950s.  The cheat sheet is updated at least monthly with new, favorable cases.  The current cheat sheet also lists decisions since Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), that deny personal jurisdiction under its “arising from”/”related to” test.

There is a second cheat sheet, no longer maintained, that includes all favorable decisions on a corporation not being “at home” for purposes of general jurisdiction.  Since this issue is essentially settled, we ceased updating it when BMS was decided.

There’s much more.  Under our “state-by-state research” tab, located at the top of the blog’s home page, readers can find personal jurisdiction research under the “procedural law” heading inside the tab.  We have a 50-State Survey on General Jurisdiction Through Consent by Registration To Do Business that was first published on 12/18/2017 and has been maintained since then.  If you need to know about the current status of this question in any jurisdiction, this post is a good place to start.

We have another tab for “General Research,” which includes links to all of the blog’s posts that contain legal research (as opposed to posts about individual cases, or other miscellaneous posts such as the one you are reading right now).  There are a lot of personal jurisdiction posts on various subjects:

Personal Jurisdiction – Arising out of/Relating to test (1/22/2018)

Personal Jurisdiction – Burden of proof (7/2/2018)

Personal Jurisdiction – Claim-by-claim analysis (1/11/2018)

Personal Jurisdiction − Class actions – (1/26/2018)

Personal Jurisdiction − Class actions – (11/20/2017)

Personal Jurisdiction – Consent by registering to do business (7/23/2018)

Personal Jurisdiction – Consent by registering to do business (3/5/2015)

Personal Jurisdiction – Discovery from third-parties (6/23/2016)

Personal Jurisdiction – Dormant commerce clause (2/22/2018)

Personal Jurisdiction – Dormant commerce clause (7/5/2016)

Personal Jurisdiction – Fifth Amendment/federal causes of action (2/19/2018)

Personal Jurisdiction – Litigation tourism (10/20/2017)

Personal Jurisdiction – Stream of commerce theory (3/12/2018)

Personal Jurisdiction – Waiver (4/23/2018)

With this research, always note the date of the post.  Unlike our cheat sheets, and our 50-state survey, these jurisdictional research posts are not updated.

Finally, in our “Topic” list, there is a listing for “Personal Jurisdiction.”  This will take you to a chronological list of every one of our personal jurisdiction posts.  The blog has been around for over ten years, so working through this topic is a little like drinking from a fire hose.  There are 96 posts under this topic, including all of those listed above.  Most of them are discussions of individual cases, and they often cover more than one topic.  Here is a list of them with individual links.

Another Missouri Talc Verdict Is Wiped Out On Personal Jurisdiction (7/12/2018)

Personal Jurisdiction through Alter Ego Fails in Illinois (6/29/2018)

New Philly Opinion Rejects Personal Jurisdiction Via Corporate Registration Consent (6/13/2018)

Yo, Canada! Oy, Vermont! (6/11/2018)

Hot and Not So Hot (6/4/2018)

No Jurisdiction Over NDA Holder Who Did Not Make The Drug (5/16/2018)

Some Ideas About Innovator Liability (5/10/2018)

Pinnacle Hip – Fifth Circuit Legal Rulings (5/7/2018)

A Ray of Hope for Innovator Liability (4/20/2018)

Post-BMS: Jurisdiction over Subsidiary ≠ Jurisdiction over Parent (4/9/2018)

You Can Use BMS To Oppose Class Certification, Too (3/22/2018)

N.D. Illinois Dismisses Accutane Case for Lack of Personal Jurisdiction (3/14/2018)

Third Time Not Quite the Charm (3/6/2018)

California Superior Court Refuses to Allow Discovery in Aid of “Litigation Tourism” in Consolidated Xarelto Litigation (2/16/2018)

Missouri Federal Court Rejects Effort to Limit the Effect of BMS (2/1/2018)

Ending The Year With Another Good Personal Jurisdiction Decision (12/29/2017)

More of What You Will See on Personal Jurisdiction Following BMS (11/21/2017)

MDL Direct Filing & Personal Jurisdiction (10/16/2017)

Lucky Seven – Multi-Plaintiff Misjoinder Fails in Illinois Post-BMS (10/9/2017)

Talcum Plaintiffs Can’t Show Personal Jurisdiction In Show Me State (9/8/2017)

Oral Argument before the Fifth Circuit Starts in a Couple of Hours on the Writ of Mandamus Filed in the Pinnacle Hip Implant Litigation (8/4/2017)

New Favorable Risperdal Decisions (8/16/2017)

Personal Jurisdiction Moves Front and Center in the Pinnacle Hip Implant MDL (8/8/2017)

Post-BMS Personal Jurisdiction is Pretty Straightforward (7/18/2017)

What You Will See On Personal Jurisdiction Following BMS (7/13/2017)

California Is At It Again On Personal Jurisdiction (7/7/2017)

Breaking News − Bristol-Myers Squibb Slams The Door On Litigation Tourism (6/19/2017)

Supreme Court Resolves Longstanding Hague Convention Service Issue (6/9/2017)

Breaking News − Personal Jurisdiction – The Sound of One Shoe Dropping (5/30/2017)

Supreme Court Expands Forum-Shopping Crackdown (5/29/2017)

Briefing Completed in Half-Billion-Dollar Verdict in Pinnacle MDL (5/12/2017)

The Other Supreme Court 4/25 Personal Jurisdiction Argument (5/1/2017)

Supreme Court 4/25 Personal Jurisdiction Argument (4/27/2017)

Guest Post – Eighth Circuit FINALLY Hears Litigation Tourism Issue (4/18/2017)

Solicitor General Urges Supreme Court to Reverse California’s Ill-Conceived Version of “Specific Jurisdiction” (3/16/2017)

More on Missouri – What To Expect and Not To Expect After Norfolk Southern v. Dolan (3/6/2017)

Litigation Tourism Ended In Missouri (3/1/2017)

Breaking News – Supreme Court Takes BMS Personal Jurisdiction Case (1/19/2017)

Alter Ego and Agency – A Different Spin on Jurisdiction (12/23/2016)

Amicus Briefs Not So Friendly to California Supreme Court’s Dreadful BMS Personal Jurisdiction Decision (11/23/2016)

M.D. Tenn. Bids Adieu to Out-of-State Class Reps (11/2/2016)

Misjoined Plaintiffs Can’t Be Used to Forum Shop (11/1/2017)

M.D. Pa. Finds No Specific Personal Jurisdiction over Parent Company (10/4/2016)

Pennsylvania’s Long Arm Overreaches the Constitution and Bauman (9/30/2016)

Hotel California Stays Open: Another Look At Specific Jurisdiction in BMS (9/16/2016)

Breaking News – California High Court Expands “Specific” Personal Jurisdiction To Recreate “Exorbitant” Personal Jurisdiction Rejected by Daimler v. Bauman (8/29/2016)

Television, Personal Jurisdiction, and Whether Corporate Knowledge Can be Imputed from Internet Drivel (8/24/2016)

Bauman Jurisdictional Limits Dismember Three More Misjoined Multi-Plaintiff Complaints (7/25/2016)

Zofran MDL Jurisdictional Analysis Bounces Non-Missouri Plaintiffs (5/11/2016)

Breaking News – No General Jurisdiction by Consent in Delaware (4/19/2016)

Bauman Personal Jurisdiction In-House Counsel Checklist (4/4/2016)

Breaking News – No Circuit Split (Yet) Over Post-Bauman General Jurisdiction by Consent (3/18/2016)

MDL Decision Debunking the Pendent Jurisdiction Fallacy Post-Bauman (3/8/2016)

Personal Jurisdiction and Choice of Law (2/23/2016)

Another No Show For Personal Jurisdiction In The Show Me State (9/18/2015)

California Dreaming: The Bite of Bauman, the Perfume of Preemption, the Stink of Stengel (8/19/2015)

Missouri Court Applies Bauman; Merely Doing Business Did Not Show Enough for Personal Jurisdiction (7/15/2015)

Check-Out Time at the Hotel California? (6/26/2015)

More Plaintiffs Go Home (Eventually and Based on Bauman) (4/17/2015)

We’re Not in Kansas: No General Jurisdiction After Bauman (4/10/2015)

Breaking Bauman News from California (11/19/2014)

Breaking News: Win On Post-Bauman Personal Jurisdiction Avoids Fraudulent (Mis)Joinder Pitfalls (11/11/2014)

Daimler (Bauman) As a Removal Tool in Multi-Plaintiff Cases 10/23/2014)

Personal Jurisdiction, Preemption, Pleadings and Proximate Cause (10/7/2014)

Interesting Cases Sent By Users (Part 1) Personal Jurisdiction (8/14/2014)

Hotel California: You Can Check Out Anytime You Like, But . . . (8/8/2014)

Sweet Home [Fill in the Blank] − A Sea Change In Personal Jurisdiction? (4/18/2014)

An OxyContin Decision That Addresses Everything from Negligence Per Se Claims to Personal Jurisdiction (4/8/2014)

Breaking News – Two New Supreme Court Decisions (1/14/2014)

No D.C. Personal Jurisdiction = No Loose D.C. Statute of Limitations = No Case (11/06/2013)

Breaking News – A TwoFer (10/29/2013)

Another Homework Failure By Plaintiffs (5/15/2012)

More Comments on Personal Jurisdiction (7/19/2011)

Personal Jurisdiction 2.0 (7/14/2011)

The Supreme Court Reins in “Stream of Commerce” Personal Jurisdiction (6/28/2011)

SG Takes Defense Side In Brown Personal Jurisdiction Case (11/19/2010)

Defense Personal Jurisdiction Briefs Filed (11/12/2010)

Personal Jurisdiction – A Primer (10/21/2010)

As all these posts demonstrate, we have devoted a great deal of time and effort to helping our defense-side readers understand personal jurisdiction and then use it to help win their cases and try to rein in rampant litigation tourism by plaintiffs.  We even identified Bauman as a case to watch, before it ever went to the Supreme Court:

In any event, we may not be waiting long for an answer.  In Bauman v. DaimlerChrysler Corp., ___ F.3d ___, 2011 WL 1879210 (9th Cir. May 18, 2011), the Supreme Court’s bête noir, the Ninth Circuit, allowed the exercise of general jurisdiction over a foreign corporation on a dumbed-down agency test based solely on the defendant’s “right to control” its wholly-owned American subsidiary.  Id. at *11-12.  The result in Bauman is little different than what the Supreme Court rejected in Brown, in that a defendant doing no business in a jurisdiction is exposed to suit there over anything and everything, and would be equally exposed to litigation anywhere its subsidiary operates, which is everywhere it sells products.

If the unanimous Court in Brown meant what it said about general personal jurisdiction, then Bauman is wrongly – badly wrongly – decided.  We expect a certiorari petition in Bauman.  We won’t give odds on the Court’s accepting the appeal, as another long snooze may be in the offing, but if it does, our money would be on reversal.

(Emphasis added).  Now there’s a bet that paid off, big-time.

Personal jurisdiction is right up there with Daubert and preemption as one of the biggest pro-defense developments of our legal careers.  You can bet we’re going to keep thinking and writing about it.

We’ve already unloaded on Hammons v. Ethicon, Inc., ___ A.3d ___, 2018 WL 3030754 (Pa. Super. June 19, 2018), where the court made a virtually unprecedented holding that a defendant challenging personal jurisdiction on Due Process grounds had the burden of proof in the course of allowing a litigation tourist from Indiana to stay in Pennsylvania, based on “contacts” that had no causal relationship to that plaintiff’s injuries.  Hammons involved high profile mass tort litigation, and we’re sure the story there is far from over.

Now there’s Webb-Benjamin, LLC v. International Rug Group, LLC, ___ A.3d ___, 2018 WL 3153602 (Pa. Super. June 28, 2018), a small commission dispute case involving a single event in Canada.  Heck, the non-resident defendant was not even registered in Pennsylvania until after the events in question.  Id. at *1.  In Webb-Benjamin, another panel of the same court has ruled that a corporation’s mere act of registering to do business in Pennsylvania subjected it to general personal jurisdiction, supposedly because registration equals “consent” and consent is a separate basis for personal jurisdiction not subject to the Due Process analysis.

Webb-Benjamin relied almost exclusively on Bors v. Johnson & Johnson, 208 F. Supp.3d 648 (E.D. Pa. 2016) (which we criticized here), and an asbestos case following Bors, Gorton v. Air & Liquid Systems Corp., 303 F. Supp.3d 278 (M.D. Pa. 2018). Webb-Benjamin, 2018 WL 3030754, at *4.  Thus,

Guided by the reasoning in Bors and Gorton, we conclude that [Bauman] does not eliminate consent as a method of obtaining personal jurisdiction.  Accordingly, pursuant to 42 Pa. C.S.A. §5301, Pennsylvania may exercise general personal jurisdiction over [plaintiff’s] claims against [defendant].

Id. at *5.

The analysis in Webb-Benjamin and the two district court cases is fairly simple.  First, the aforementioned §5301(a) “qualification as a foreign entity under the laws of this Commonwealth” is a “sufficient basis . . . to exercise general personal jurisdiction over such person.”  Second, registration is a form of “consent” to personal jurisdiction.  Third, “consent” is distinct ground for general personal jurisdiction not subject to the ordinary general jurisdiction tests enunciated in Daimler AG v. Bauman, 571 U.S. 117 (2014).  That’s simple, but also simply wrong.

First, the statute says what it says.  But a state statute cannot trump federal Due Process – that’s what the Supremacy Clause is all about.  Thus, Judge New recognized that to interpret the state’s registration statute in this fashion renders it unconstitutional as applied to a non-resident corporation being sued by a non-resident plaintiff over activities outside the state of Pennsylvania:

Under the current state of Pennsylvania law, the only way foreign corporations such as Defendant can avoid Pennsylvania courts’ assertion of general jurisdiction over them is for those corporations to avoid doing business in Pennsylvania.  Faced with this Hobson’s choice, a foreign corporation’s consent to general jurisdiction in Pennsylvania can hardly be characterized as voluntary.  In light of the Supreme Court’s repeated admonishment that the Due Process Clause prohibits a state from claiming general jurisdiction over every corporation doing business within its borders, it logically follows the Due Process Clause also prohibits a state from forcing every corporation doing business within its borders to consent to general jurisdiction.

Mallory v. Norfolk Southern Railway Co., 2018 WL 3025283, at *5 (Pa. C.P. Phila. Co. May 30, 2018) (citations omitted).  The United States Supreme Court has repeatedly stated that a corporate defendant must be “at home” in order to justify general jurisdiction – not merely that it conduct “continuous and substantial” business.  E.g., BSNF Railway. v. Tyrrell, 137 S.Ct. 1549 (2017); Daimler AG v. Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).

Personal jurisdiction, “represents a restriction on judicial power . . . as a matter of individual liberty.”  Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).  A mere state statute cannot change federal constitutional law.  “By wrapping general jurisdiction in the cloak of consent, Pennsylvania’s mandated corporate registration attempts to do exactly what the United States Supreme court prohibited.”  Mallory, 2018 WL 3025283, at *6.  Indeed, the same Pennsylvania statute expressly recognizes Due Process limitations.  See 42 Pa. Cons. Stat. §5308 (“tribunals of this Commonwealth may exercise jurisdiction under this subchapter only where the contact with this Commonwealth is sufficient under the Constitution of the United States”); 42 Pa. C.S.A. §5307 (jurisdiction only extends “to the extent permitted by the Constitution of the United States”).

Nor does Webb-Benjamin’s step two accurately state the law.  The Pennsylvania statute itself treats registration and consent as separate means of obtaining general jurisdiction.

(a) General rule. − The existence of any of the following relationships . . . shall constitute a sufficient basis . . . [for] general personal jurisdiction. . . .

(i) Formation under or qualification as a foreign entity under the laws of this Commonwealth.

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

(iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.

42 Pa. C.S. §5301(a)(1-3) (emphasis added).  On its face, the statute plainly distinguishes between registration and consent.  They are different bases for jurisdiction.  Webb-Benjamin improperly merges subsections (a)(i) and (a)(ii).

Nor does the United States Supreme Court currently (as opposed to 100 years ago) consider registration to do business as a form of consent.  Generally, the Court has 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 v. Heitner, 433 U.S. 186, 202-03 (1977).

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.

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

Further, in Insurance Corp. of Ireland, the Court listed the currently recognized ways by which a defendant could “consent” to personal jurisdiction in the forum:  (1) “submi[ssion] to the jurisdiction of the court by appearance”; (2) “parties to a contract may agree in advance to submit to the jurisdiction of a given court”; (3) “a stipulation entered into by the defendant”; (4) “agreements to arbitrate”; (5) “a judgment in personam may be rendered in a cross-action against a plaintiff in its courts”; (6) “waive[r] if not timely raised”; and (7) “fail[ure] to comply with a pretrial discovery order.”  456 U.S. at 705-06.  Corporate registration to do business is conspicuously absent from this list.  See also J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 880-81 (2011) (more recent discussion of consent likewise omitting corporate registration).  Registration is not consent.  To the contrary, a state 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) (quoting Southern Pacific Co. v. Denton, 146 U.S. 202, 207 (1892)).

To conduct any business in Pennsylvania, however slight, a foreign corporation must register. 15 Pa. C.S. §412(a).  All 50 states and the District of Columbia have similar laws.  E.g., T. Monestier, “Registration Statutes, General Jurisdiction, & the Fallacy of Consent,” 36 Cardozo L. Rev. 1343, 1363-64 n.109 (2015) (string cite of all 50 states’ registration statutes).  Thus, if an authorizing statute was sufficient to create general jurisdiction – whether called “consent” or anything else – a corporation could constitutionally be subjected to general jurisdiction in every state where they conducted business, whether or no not the business was “continuous and substantial” – indeed even if they actually did no business at all (recall that the defendant in Webb-Benjamin only registered after the events at suit).  That result is incompatible with Bauman, which held that to “approve the exercise of general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of business” would be “unacceptably grasping.”  571 U.S. at 138 (quotation marks omitted).  Since Webb-Benjamin’s “consent” theory does not even require “continuous and substantial” corporate activity as a predicate to general jurisdiction, Due Process does not allow theories of jurisdiction that would expose a corporation to suit for anything in any state:

[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.

Id. 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.”  Tyrell, 137 S. Ct. at 1559.

Unlike Webb-Benjamin, almost every other appellate court in the country has read the Supreme Court’s decisions in BSNF, Bauman, and Goodyear to mean what they say, and has recognized the handwriting on the wall against expansive jurisdiction by consent theories.  We’ll start with Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del. 2016), since:  (1) Delaware knows something about corporate law, and (2) until Bauman, Delaware law had recognized precisely the same consent theory of jurisdiction as Webb-Benjamin.  No longer.  Cepec understood that general jurisdiction by consent merely by means of 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.  The foreign corporation in this case does not have its principal place of business in Delaware; nor is there any other plausible basis on which Delaware is essentially its home.  Hence, Delaware cannot exercise general jurisdiction over it consistent with principles of due process.

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

General jurisdiction by consent was likewise rejected in State ex. rel. Norfolk Southern Railway Co. v. Dolan, 512 S.W.3d 41, 51-53 (Mo. 2017).  The court first observed, citing Cepec, that “a broad inference of consent based on registration would allow national corporations to be sued in every state, rendering [Bauman] pointless.”  Id. at 51.  It therefore refused to interpret its statute to raise such constitutional questions.  “The plain language of Missouri’s registration statutes does not mention consent to personal jurisdiction for unrelated claims.”  Id. at 52. Accord State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 232-33 (Mo. 2017) (following Dolan in prescription medical product case).

Similarly, the Illinois Supreme Court, in Aspen American Insurance Co. v. Interstate Warehousing, Inc., 90 N.E.3d 440 (Ill. 2017), rejected the proposition that 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.  Accord Campbell v. Acme Insulations, Inc., ___ N.E.3d ___, 2018 WL 2305692, at *4 (Ill. App. May 18, 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”) (following Aspen).

In the otherwise unfortunate Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (Cal. 2016), reversed, 137 S. Ct. 1773 (2017), the California Supreme Court likewise held that “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.”  Id. at 798.  See also Am Trust v. UBS AG, 681 F. Appx. 587, 589 (9th Cir. 2017) (consent to jurisdiction not required of corporations registering to do business) (applying California law).  The same conclusion governs Wisconsin law.  In Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, 898 N.W.2d 70 (Wis. 2017), the court overturned lower court precedent, cautioning that it “generally avoids interpreting statutes in a way that places their constitutionality in question,” which was precisely basing general jurisdiction on corporate registration would do:

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. . . .  Significantly, the [Bauman] 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). . . .  [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 82.  Accord Figueroa v. BNSF Railway Co., 390 P.3d 1019, 1021-22 (Or. 2017) (“we conclude 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.”); Magill v. Ford Motor Co., 379 P.3d 1033, 1038 (Colo. 2016) (corporate registration cannot support general jurisdiction where defendant’s in-state contacts “pale in comparison to the significant contacts that were deemed ‘slim’ in” Bauman).

So that’s seven state high courts rejecting general jurisdiction based on considering registration to do business as “consent” since Bauman – to zero in favor.

Appellate authority in other jurisdictions is in accord with the above decisions.  The Second Circuit in Brown v. Lockheed-Martin Corp., 814 F.3d 619 (2d Cir. 2016) (applying Connecticut law), refused to “err[] in casually dismissing related federal due process concerns” and became the first post-Bauman appellate decision to reject “consent” based on mere registration to do business as a basis for general personal jurisdiction.  Id. at 636.  “[T]he history of such statutes suggests that assent only to specific jurisdiction is what the statute required.” Id. at 637. So-called “consent” jurisdiction, if generally conferred by registration to do business raises the same constitutional concerns that drove the result in Bauman:

In any event, we can say that the analysis that now governs general jurisdiction over foreign corporations − the Supreme Court’s analysis having moved . . . to the 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.  “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.  See also Wal-Mart Stores, Inc. v. Lemaire, 395 P.3d 1116, 1120 (Ariz. App. 2017) (“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.”); Magwitch, LLC v. Pusser’s West Indies, Ltd., 200 So.3d 216, 218 (Fla. App. 2016) (registration cannot create general jurisdiction; old law “has yielded to the two-prong analysis for long-arm jurisdiction set forth in recent decades by the Supreme Court”); Dutch Run Mays Draft, LLC v. Wolf Block LLP, 164 A.3d 435, 444-45 (N.J. App. Div. 2017) (court could not “agree business registration rises to consent to submit to the general jurisdiction in the forum,” given Bauman’s “clear narrow application of general jurisdiction”); Stisser v. SP Bancorp, Inc., 174 A.3d 405 (Md. App. 2017); Salgado v. OmniSource Corp., 2017 WL 4508085, at *5 (Tex. App. Oct. 10, 2017) (having a “registered agent in Texas . . . [alone] is not enough to subject a nonresident defendant to general jurisdiction”) (unpublished); Northern Frac Proppants, II, LLC v. 2011 NF Holdings, LLC, 2017 WL 3275896, at *16 (Tex. App. July 27, 2017) (“general jurisdiction contacts are not established by showing that foreign business entities . . . were registered to do business in Texas, and had registered agents for service of process in Texas”) (unpublished); Gulf Coast Bank & Trust Co. v. Designed Conveyor Systems, LLC, 717 F. Appx. 394, 398 (5th Cir. 2017) (rejecting “other outdated view[s] of general jurisdiction”; no general jurisdiction by reason of corporate registration) (applying Louisiana law).

There are literally dozens of trial court level decisions in numerous other states that also reject corporate registration as a basis for general jurisdiction when a corporate defendant is not “at home” under Tyrell/Bauman.  For prior decisions, see our 50-state survey on jurisdiction by consent.  For future decisions (not divided by state) see our post-BMS jurisdictional cheat sheet.

With WebbBenjamin, those of us who defend cases in Pennsylvania now have to cope with loopy Superior Court decisions on both general and specific jurisdiction.  Pennsylvania’s prior reputation as a hotbed of litigation tourism remains well and fairly earned.  Expect multiple appeals to the Pennsylvania Supreme Court, and perhaps even higher, to the United States Supreme Court.

Even if Bexis and McConnell like to sport overalls and tool around in souped-up tractors, we are not farmers.  We have grown enough heirloom tomatoes, ghost peppers, rainbow chard, purple basil, and other suburban garden staples, however, to know that “you reap what you sow” is usually true, assuming the levels of hydration, sunshine, and soil pH are appropriate.  (There are pleasant exceptions, like asparagus from prior owners or berries spread by critters, and undesired interlopers, like Japanese hops and any number of leafy weeds.)  It is often true in litigation too.  When the Bauman and Walden decisions came down in early 2014, it should have been apparent that the sort of litigation tourism that had driven so many verdicts and settlements based on fear of verdicts in plaintiff-friendly places was going to be a risky proposition going forward.  While we and many others touted these rulings and proclaimed what should happen with personal jurisdiction in such cases, the plaintiffs’ bar did not give up on what had been such a lucrative approach.  Instead, they continued filing multi-plaintiff cases in their desired jurisdictions, even though almost all of the plaintiffs had no ties to the jurisdiction and the defendants were not “at home” there.  They also fought against motions and appeals with sometimes creative arguments that generally flew in the face of what the Supreme Court had already ruled.  While these packaged tour cases remained in these dubious jurisdictions, they sometimes progressed to trial and, aided by lenient views of the admissibility of junky causation evidence or other rulings that tend to drive up verdicts, scored some really big verdicts.  While some defendants surely settled along the way, others stuck it out to get to appellate rulings that would undo everything with a pronouncement that “this plaintiff’s case never belonged here in the first place.”

If you are reading this and thinking about the talc litigation in Missouri, then you would be right.  It is not the only litigation to follow this pattern, but it has been one of the most visible.  The timeline implicated by Ristesund v. Johnson & Johnson, — S.W.3d –, 2018 WL 3193652 (Mo. Ct. App. June 29, 2018), is where we will start, because it shows the sowing to which we alluded so awkwardly above. Bauman and Walden come out in February 2014, signaling a tightening of the general personal jurisdiction standard and a refusal to expand the specific personal jurisdiction standard.  In September 2014, plaintiff, a South Dakota resident, filed a lawsuit in Missouri state court about alleged ovarian cancer from talc in cosmetic products along with a Missouri resident and seventy-three other non-Missouri residents.  Plaintiffs pushed forward through discovery and motions to a series of trials.  Motions to dismiss for lack of personal jurisdiction for the claims of the non-Missouri residents were denied based on the conclusion that the court’s jurisdictions over the claims of the sole Missouri resident was enough.  In February 2016, the estate of a non-Missouri plaintiff named Fox won a large verdict and then defendants appealed.  In May 2016, Ristesund won her own large verdict and then defendants appealed.  In June 2017, the Supreme Court issued the BMS decision, essentially rejecting reliance on the ties of (misjoined) plaintiffs to establish specific personal jurisdiction over the claims of a plaintiff who would not otherwise be able to establish general or specific personal jurisdiction.  In October 2017, the Missouri Court of Appeals ruled in Fox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. Ct. App. 2017), that plaintiff did not establish personal jurisdiction consistent with constitutional requirements and should not get a chance to do so on remand.  (We detailed the decision here.)  The same court considered almost the same issues in Ristesund about two weeks ago.

Pretty straightforward, one would think.  Plaintiff, to her credit, even conceded that BMS controlled and the trial court lacked personal jurisdiction over defendants as to her claims. Ristesund, — S.W.3d –, 2018 WL 3193652, *2.  That meant the verdict could not stand.  The only issue left was plaintiff’s argument that “fairness requires” that she have an opportunity on remand to develop arguments and evidence support personal jurisdiction.  This is where that timeline mattered.  As in Fox, the plaintiff “had a full and ample opportunity to discovery and introduce any and all evidence that she believed would establish personal jurisdiction over the Defendants.” Id. at *3.  While not all plaintiffs try to gather and introduce evidence of personal jurisdiction, recall that this case was filed after Bauman was decided.  It went to trial after a personal jurisdiction motion was denied, an appeal on a companion case focused on personal jurisdiction, and scores of cases (see our cheat sheet) had been decided around the country on applications of Bauman that anyone would have realized undercut personal jurisdiction in this case.  The plaintiff lawyers pursuing all of these cases took a calculated gamble to work up these cases and win big verdicts in a court where personal jurisdiction was tenuous at best, as long as the defendants were willing to sustain the trial losses and get to appeals. Ristesund could have sued in South Dakota—where she lived—or in New Jersey—where the defendants were based—but she chose the litigation tourist route.

Her last gasp was to claim that BMS being decided after her trial verdict somehow entitled her to another chance to prove personal jurisdiction.  The court’s rejection of this contention can stand on its own.

Principles of fairness do not dictate or warrant remand. The pronouncement in BMS neither introduced new concepts in the law nor relied upon new principles of law. BMS was not a decision that “came out of nowhere.” To the contrary, the parties in BMS, as in Daimler, argued long standing principles of personal jurisdiction in our jurisprudence. The parties before us were well aware of the legal principles being argued before the Supreme Court, as evidenced by their pleadings and argument before the trial court.  Ristesund was not precluded from broadening the scope of her claims for personal jurisdiction while her case was before the trial court . . . . Similar to our reasoning in Fox, we are not persuaded that the law either warrants or permits us to now return this matter to the trial court for a “do-over.”

Id. at *5.  That sounds pretty fair to us.