Missouri is central to America – geographically, culturally, and politically. Some of our greatest literature came from Missouri authors (Twain, Eliot, Angelou). Media figures as unifying as Walter Cronkite and as divisive as Rush Limbaugh at one time called Missouri home. American music wouldn’t be the same without tenor saxophonist Coleman Hawkins (listen to the 1939 version of “Body and Soul” to hear the essence of Jazz improvisation) and Chuck Berry (who invented rock and roll without any help from Marty McFly). Two of the country’s deepest philosophers, Reinhold Niebuhr and Yogi Berra, hailed from the Show Me state. We are grateful for Kansas City barbecue, especially accompanied by the best selling beer in the country, brewed on the other side of the state. (Don’t sneer; superchef David Chang says that Bud Light is his favorite beer to accompany food). We also would have found these last few weeks of the Coronoavirus lockdown much more difficult to get through without binge-watching Ozark, the Netflix series about a Chicago family relocating to a lovely part of Missouri to engage in some very unlovely money-laundering and mayhem. (Query why the local authorities in the Lake of the Ozark area don’t pay more attention when their resort area suddenly becomes a lot more explosive and murdery. Season 3 ended recently and – semi-spoiler alert – it didn’t turn out great for a certain holder of a law degree.)

In politics, Missouri has long occupied the crucial middle. The Missouri Compromise put off the Civil War … for a while. Harry Truman was a consequential President in the middle of the 20th Century. Currently, Missouri has a colorable claim to be one of the few genuinely purple states in a land too often split into red and blue. (But recently it does seem to be getting redder. The 538.com website plants Missouri firmly in the pro-Trump column.)

Missouri is also at the center of things in the legal arena. Border areas on both sides of the state harbor predatory plaintiff firms. At the same time, some of the fellow defense hacks we admire most have Kansas City and St. Louis addresses. But if we had to choose where to visit, we’d pick Kansas City, and not just because of Arthur Bryant’s. The courts in Kansas City are not bad, though not quite as good (yeah, we mean pro-defense) as the ones across the river in Kansas. But the courts in St. Louis (we mean the city, not the county), are just about the worst in America. (And by worst we mean pro-plaintiff; we mean unfair; we mean crazy.)

Did you ever watch the old Rumpole of the Bailey series, written by former barrister John Mortimer, and played on tv by the masterful Leo McKern? It should be mandatory viewing by put-upon lawyers everywhere. In one of his tougher cases, Rumpole, after a series of adverse rulings, invites the presiding judge to climb down from the bench and take a seat at his opponent’s table, since the judge’s bias was so palpable. Well, we heard a story about something like that actually happening in St. Louis. In the midst of a product liability litigation, a judge retired, and then went to work for the plaintiff firm. At that point, we would have a very depressing conversation with the client, and then commence dreaming of a retirement filled with watercolor painting and vodka gimlets.

Missouri for a while had a reputation as one of the big litigation tourist jurisdictions. Plaintiff firms would gin up consolidated cases, joining one or two Missouri plaintiffs with riverboatloads of non-Missourians, file them in St. Louis, and then let the madness begin. St. Louis juries doled out several multi-million and even multi-billion-dollar awards in cases that, under any set of dispassionate eyes, did not come close to warranting such, er, generosity. Research by Citizens Against Lawsuit Abuse demonstrated that excessive tort litigation in Missouri resulted in a loss of $2 billion in personal income annually and a loss of 32,205 jobs. That “tort tax” cost $505.21 per person. Thankfully, the SCOTUS opinions in Bauman and BMS made litigation tourism in Missouri more difficult, and Missouri courts have actually done a pretty good job of changing their ways. We’ve written about that evolution frequently, including here. Personal jurisdiction doctrine now permits corporate plaintiffs to face jurors at home or where the alleged injury occurred, rather than alwaysalwaysalways in the shadow of the Gateway Arch. It’s an improvement.

Anyway, putting aside the upside-down world of St. Louis city courts, Missouri seems to be heading back toward the center of Anglo-American jurisprudence. Maybe some of that is due to the state’s reddening, which we alluded to earlier. We have no desire to dive into the mud pit of politics. We’d be out of our league. But having once occupied the position of federal prosecutor and now working in an AmLaw 100 office (if we are ever allowed to return to the actual office), we are a bit sensitive about everyone assuming that we are a hard-core, atavistic right-winger. That assumption would be wide of the mark. One can be a social liberal but still believe corporate defendants deserve a fair shake. More to the point, one can occasionally color in the dots next to Democrat candidates while still favoring tort reform.

Missouri has recently hopped aboard the tort reform bandwagon. 2019 was a good year in that respect. 2020 looks good, too. Last week, the Missouri General Assembly enacted Senate Bill 591, which does a couple of things that restore rationality and fairness to lawsuits that can involve our drug and device clients. First, it reins in the much abused Missouri consumer fraud statute. It imposes a “reasonable consumer” standard on plaintiffs and requires “definitive and objective evidence” of “individual” damages. Think how different this damages proof would be as compared to plaintiff economic experts offering counterfactual scenarios containing the scientific rigor of a Rick and Morty episode. These requirements are also added to the class action section. Medical malpractice (chapter 538) claims are exempted. In addition, consumer fraud actions accrue on the date of purchase. The bill also limits class action attorney fees. The result is that consumer class actions now have a clear, concrete time-frame and are less likely to look like a potential jackpot to enterprising plaintiff lawyers. For corporate defendants, there is now less uncertainty, less overall exposure, and more predictability.

Second, the bill reforms punitive damages in a number of enlightened ways. Missouri law will require clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The confusing, prejudicial, and ultimately useless “willful and wanton standard” is now gone. Here is the kicker: “Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct.” That’s potentially a game-changer. Let’s face it: against all original intention and sound jurisprudence, plaintiff attorneys have hoodwinked courts into turning straight-on negligence claims into cases with potential punitive damages. That doctrinal detour has increased exposure and uncertainty, placed a premium on plaintiff efforts to ramp up jury anger, and turned litigation from an engine of truth into a settlement meat-grinder.

But the goodies in the new Missouri tort reform bill do not stop there. Punitive damages cannot be based on nominal damages in the kind of cases we defend. Further, the bill limits vicarious punitive damages. Conduct must have been authorized by the principal. Oh, discovery on punitive damages is now limited. Punitive damages cannot be sought in the initial complaint, and there will no punitive damages discovery, except on amendment supported by evidence, which would be needed to secure leave of the court. If plaintiffs do manage to inject punitive damages into the case, trial will be bifurcated. Punitive damages cannot be based in any way on harm to non-parties.

All these excellent amendments are prospective only, applying to claims filed on or after August 8, 2020. Perhaps we will see a rush to the courthouse before then. But afterwards, a new litigation day will dawn in Missouri.

When we see a case title with the same name on both sides of the v, we think of Jarndyce v. Jarndyce, the will contest described by Dickens in Bleak House. That fictional case dragged on for years and throughout the course of the book, ending only when legal expenses devoured all the estate funds. When a case is Surname X vs. Surname X, it is usually a family law matter. That is not the usual stuff for our cozy little blog, and maybe that’s why did not pay much attention to Aybar v. Aybar, 2019 WL 288307 (N.Y. App. Jan. 23, 2019), when it came out a little more than a year ago.

Aybar was about a car accident – a bad one, involving three fatalities and three serious injuries. The plaintiffs were the survivors and the estates of the decedents. The defendants included the driver (who must have been a relative of at least one of the plaintiffs, thereby accounting for the same names) and the manufacturers of the vehicle and the tires. The auto manufacturer and tire manufacturer moved to dismiss the case against them for lack of personal jurisdiction. The vehicle was manufactured in Missouri and sold in Ohio. Nothing involving the manufacture of the vehicle in question occurred in New York. The auto manufacturer had no factories in New York and, to the extent it did any business there, operated via independent dealers. The tires were made in Tennessee and tested and inspected outside of New York.

The plaintiffs did not assert that there was specific jurisdiction against these defendants. The only issue was whether New York could exercise general personal jurisdiction — i.e., whether the companies engaged in such a continuous and systematic course of doing business in New York such that a plaintiff could hail them into New York courts for any case. The lower court said that New York did have such general jurisdiction over the companies. The appellate court said that the lower court was wrong.

Under the SCOTUS decision in Daimler, there is general jurisdiction over companies that are “at home” in the forum in question. Companies are “at home” in states where they are incorporated and states that house the principal place of business. Nothing else really does the trick, apparently, save having a temporary place of business in a state during a war. None of that applied in Aybar, thus it looked like the companies could escape from New York. The plaintiffs resorted to the usual gambit, pointing to the companies’ long histories of doing lots of business in New York. Of course, any big corporation in this country cannot help doing lots of business in New York. If plaintiffs’ argument won the day, Daimler would be a dead letter, at least within the territorial limits of New York (and, undoubtedly, California, as well). So far, Aybar is pretty ordinary.

What makes Aybar interesting is court’s rejection of plaintiffs’ argument that there was general jurisdiction over the companies because they consented to jurisdiction in New York by registering to do business in New York and appointing an agent for service of process. This argument usually does not work, though it has made headway in a few courts. Those few courts were unspeakably dim, so we won’t speak of them — we’ll leave that to Bexis. But we will speak (kindly) about the reasoning in Aybar.

At first, you might think the Aybar court had it easy, because the New York business registration statutes do not expressly require consent to general jurisdiction as a cost of doing business in New York, nor do they expressly notify a foreign corporation that registering to do business in New York has such an effect. Nevertheless, there is a long line of New York cases (both federal and state) holding that registering to do business in New York does, indeed, constitute consent to general jurisdiction. It was, for sure, a long line, but it was also an old line. The New York theory of consent by registration traces back to a 1916 decision by Judge (not yet Justice) Cardozo. Cardozo, like Holmes, Marshall, etc., gets a lot of cred, and we in the legal business are supposed to treat legal legends as if they were infallible. (By the way, they were not). The Aybar court does not label Cardozo as wrong; rather, his personal jurisdiction decision was of its time. The Aybar court takes us on a tour of personal jurisdiction law from Pennoyer through International Shoe etc., culminating in Daimler. (If you can read the Aybar opinion and not have an anxiety nightmare that night about your law school Civ Pro I exam, you are made of stronger stuff than we are.) Let’s cut to the chase. Daimler was a game changer. And the game now is a lot better for defendant corporations. The old New York consent-by-registration cases are confined to the pre-International Shoe era. Post Daimler, companies do not consent to general jurisdiction in New York merely by registering to do business there.

Unlike Jarndyce v. Jarndyce, in which the justice system perpetuated insanity after insanity, eventually grinding the parties to dust, Aybar v. Aybar shows a justice system capable of evolving, learning, and improving.

You can buy almost anything you want on line – and a whole lot of stuff you didn’t know you wanted until you saw it online.  And, if you can think of something you want that you can’t find online, there are DIYers online just waiting to make you whatever it is you’ve dreamed up.  Taxidermy postal-rat bookends – yep.  A selfie-toaster – check.  A set of wooden garden ducks wearing spotted wellies – that too.  And this stuff ships from all over the world or from your own backyard.  You want cosmetics from a store only in the U.K.  No problem.  Too busy to get to the market – your local grocery store probably has a delivery service.  Add to that Door Dash and Uber Eats and a Sunday afternoon craving for tacos or Thai food never has to go unsatisfied again.  It’s not just a cliché to say the world has gotten smaller.  Any company with an online presence can be viewed by millions of people in hundreds of countries.  So, what does that mean for personal jurisdiction?  Where is a company “at home” when they advertise online?

That was the issue in Finarelli v. Monsanto Co., 2019 U.S. Dist. LEXIS 160120 (M.D. PA Sep. 19, 2019).  This is a non-drug/device products liability case related to the weed killer Roundup.  Plaintiff also brought fraud and misrepresentation allegations against the company that handled the product’s marketing.  Id. at *1.  There was no dispute that the marketing defendant’s principal place of business was Missouri and that it was not registered to do business in Pennsylvania or owned property in Pennsylvania.  Id. at *6.  As an out-of-state defendant, plaintiff alleged the court had general jurisdiction over the marketing defendant.

As clarified by the Supreme Court in BNSF RY v. Tyrell, 137 S. Ct. 1549 (2017), general jurisdiction exists “when [a defendant’s] affiliations with the State are so continuous and systematic as to render [defendant] essentially at home in the forum State.”  Exercising general jurisdiction over a foreign company, however, is an “exceptional case” that will be found only in a limited set of circumstances.  Finarelli, at *10-13.  Furthermore, the general jurisdiction question requires the court to look at the entirety of a company’s activities.  After all, “a corporation that operates in many places can scarcely be deemed at home in all of them.”  Id. at *14 (quoting Tyrell).

Plaintiff’s sole argument to support general personal jurisdiction was that defendant ran “national advertising campaigns” in print and video “which appeared and/or were accessible in Luzerne County, Pennsylvania.”  Id. at *16.  And, that defendant “maintained a public, national marketing website . . . which is advertised and/or accessible to consumers in Luzerne County, Pennsylvania.”  Id.  The same could be said of just about every company that has a product to sell, including drugs and devices.  That’s just too broad.  The Finarelli court agreed:

If national or global general advertising, marketing, and website activity which is present in Pennsylvania were found by this Court to suffice for the exercise of general jurisdiction, its ruling would run afoul of the Supreme Court’s directive . . . .  Otherwise, ‘at home’ would be synonymous with ‘doing business’ tests framed before specific jurisdiction evolved in the United States.

Id. at *17.  The Finarelli court was also armed with Third Circuit decisions finding that operation of a website and/or direct mail advertising to a state’s residents was not sufficient to subject a defendant to jurisdiction.  Id. at *17-18 (citing Toys “R” Us Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003) and Rocke v. Pebble Beach Co., 541 F.App’x 208 (3d Cir. 2013)).

Now, I wonder if bacon-flavored dental floss (available on Amazon in a 2-pack) is ADA approved?

Missouri courts keep showing us surprisingly good things on the personal jurisdiction front. In Mitchell v. DePuy Orthopaedics, Inc., 2019 U.S. Dist. LEXIS 92621 (W.D. Missouri June 3, 2019), the plaintiff twice had a knee replacement implant while she lived in Kansas, then sued in Missouri, claiming that, after she moved there, that is where she suffered injuries and where she sought treatment for her injuries. She alleged negligence, strict liability, breach of warranty, misrepresentation, fraud — all based on the defendants’ design, license, manufacture, distribution, sale, and marketing of the medical devices. The defendants moved to dismiss for lack of personal jurisdiction, contending that all of the plaintiff’s claims arose out of events that took place in Kansas, not Missouri.

If any of this sounds familiar, it should. Less than a month ago we reported on another Missouri case where the plaintiff had moved in from out of state. And if it occurs to you that this is two days in a row of personal jurisdiction cases – well, congrats, you are one of our truly loyal and attentive readers.

The plaintiff in Mitchell conceded that the Missouri court lacked general jurisdiction over the defendants, but argued that specific jurisdiction existed because the plaintiff suffered injuries in Missouri, plus the defendants did plenty of marketing and selling of knee replacements in Missouri. The first point isn’t wholly silly (though it still loses), but the second one is, at least for anyone who has kept up with specific jurisdiction case law over the last five years.

The Mitchell court began by reciting the Int’l Shoe “minimum contacts” and Burger King “purposeful directing activities toward forum residents” standards. Those old standards take one only so far. But the Mitchell court also invoked a couple of more recent tests that end up deciding this case:

1. In Walden v. Fiore, 571 U.S. 277 (2014), SCOTUS held that contacts “that the defendant himself creates with the forum State serve as a basis for jurisdiction, … but contacts formed by the mere unilateral activity of those who claim some relationship with a non-resident do not.”

2. In Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (207), SCOTUS held that specific jurisdiction does not exist when the defendant’s contacts with the forum lack a connection to “the specific claims at issue.”

Armed with these precedents, the Mitchell court held that the plaintiff’s move to neighboring Missouri did not create specific personal jurisdiction. Those were the unilateral acts of the plaintiff. The defendant’s Missouri registration, advertising, and product sales were irrelevant because they bore no relationship to plaintiff’s injuries. Moreover, the plaintiff never saw the claimed advertising.

The plaintiff endeavored to evade the recently clarified specific jurisdiction doctrine by arguing that a “short drive” across a state border “should not preclude jurisdiction because, given defendants’ contacts in Missouri,” the plaintiff’s claim “could just as easily have arisen out of defendants’ activities in Missouri, rather than Kansas.” That is not a principle; it is a whine. The Mitchell court pointed out that under the plaintiff’s ‘logic,’ a national company could be sued by any resident of any state in any state. That would not only be a world without the Walden and Bristol-Myers cases, it would be a world without fair play and due process. Accordingly, the court transferred the action to Kansas. (That was the the plaintiff’s suggested alternative to flat-out dismissal, and the defendants did not oppose it.)

That is good news for the defendant, because the law in Kansas is more defense-friendly, and some would say the same about the judges and juries. It is actually good news for everyone, because as good as the barbecue is in Kansas City, Missouri, there is a place just a “short drive” to the other side of the river that is even better.

Last year, we posted about Pennsylvania going off the personal jurisdictional “deep end” in Hammons v. Ethicon, Inc., 190 A.3d 1248 (Pa. Super. 2018), and Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018).  Well, unfortunately they’re still at it, and we’re afraid that the result could well be a lot like the Missouri talc cases, or a bunch of California mass torts – a lot of futile trial activity eventually coming to naught because the trial courts never had jurisdiction to start with.

But maybe not.  Here’s a ray of hope.  Last Wednesday, the Pennsylvania Supreme Court agreed to hear an appeal in the Hammons case.  So whether or not it ultimately takes the United States Supreme Court to straighten Pennsylvania out, the Pennsylvania Supreme Court will have the first opportunity to set things right – which is as it should be.

Today’s decision, In Re: Pelvic Mesh Litigation, Appeal of Ethicon, Inc. & Johnson & Johnson, 2019 WL 1486697 (Pa. Super. April 3, 2019), is – and richly deserves to be – one of the last uncitable, unpublished memorandum decisions issued by the Pennsylvania Superior Court.  On May 1, 2019, new Pa. R.A.P. 126 becomes effective, and thereafter unpublished Pa. Super. memorandum decisions, while still non-precedential, will at least be citable.  Thankfully, Pelvic Mesh falls under the old rule.

Briefly Pelvic Mesh takes Hammons’ wrong-headed approach to post-BMS specific (“case-linked”) personal jurisdiction and applies it to the entire mesh mass tort pending in the Philadelphia Court of Common Pleas.  Once again, the court fails to rely on case specific evidence.  Nowhere in the opinion do we know the names, circumstances, or even the number of so-called “non-resident plaintiffs” whose jurisdictional cases are to be adjudicated.  What was lacking in BMS?  The Supreme Court told us:

The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims.  As noted, the nonresidents were not prescribed [the product] in California, did not purchase [the product] in California, did not ingest [the product] in California, and were not injured by [the product] in California. . . .  Nor is it sufficient − or even relevant − that [defendant] conducted research in California on matters unrelated to [the product].  What is needed − and what is missing here − is a connection between the forum and the specific claims at issue.

Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017) (emphasis added).  In BMS the lower courts had erred by not basing their analysis on the “specific” contacts of the plaintiffs, and instead relying on generalized evidence – including the defendant’s relationship (as here) with a third-party in-state corporate defendant:

[T]he requirements of [personal jurisdiction] must be met as to each defendant over whom a state court exercises jurisdiction. . . .  [T]he nonresidents have adduced no evidence to show how or by whom the [product] they took was distributed [and] dispensed [] to them.”  The bare fact that [defendant] contracted with a [resident] distributor is not enough to establish personal jurisdiction in the State.

Id. at 1783.

As in BMS, the Pennsylvania Superior Court in Pelvic Mesh is creating another “a loose and spurious form of general jurisdiction,” id. at 1781, specifically, a product-related version of “continuous and substantial” contacts with Pennsylvania, but lacking the critical “at home” element.  Any and all plaintiffs in the Pelvic Mesh mass tort, no matter where they reside, and no matter where they “were implanted with one of the [defendants’] eight pelvic mesh devices,” 2019 WL 1486697, at *6, are allowed to establish specific personal jurisdiction based on identical facts:

[Defendant’s] direct oversight of the knitting of the mesh in Pennsylvania, coupled with its reliance on clinical studies performed by a Pennsylvania gynecologist, is sufficient to bring [it] within the jurisdiction of this Commonwealth.

Id.

However, those aren’t plaintiff-specific facts.  Those facts aren’t unique to any plaintiff.  Instead, they are what the Pelvic Mesh court believed to be sufficiently substantial facts connecting the eight mesh products generally to the Commonwealth of Pennsylvania, no matter who the plaintiff happens to be.  Thus, as in BMS, the Pelvic Mesh court created “a loose and spurious form of general jurisdiction” that is woefully insufficient to establish either general or specific jurisdiction.  Under BMS, having an in-state distributor is insufficient, unless the plaintiff used a product so distributed.  137 S. Ct. at 1783.  Other general in-state contacts (conducting research) are not “even relevant.”  Id. at 1781.  See also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 920, 927 (2011) (rejecting jurisdictional analysis that “elided the essential difference between case-specific and all-purpose (general) jurisdiction” and “blend[ed] general and specific jurisdictional inquiries”).

“[T]he suit must arise out of or relate to the defendant’s contacts with the forum.”  BMS, 137 S. Ct. at 1780 (citation and quotation marks omitted).  The facts necessary to establish “case linked” jurisdiction, as BMS made clear, are those creating “the specific claims at issue,” id. at 1781, not what a defendant generally does concerning a product.  These non-Pennsylvania plaintiffs, like the non-Californians in BMS, “were not prescribed,” “did not purchase,” “did not ingest” and “were not injured” in Pennsylvania by the product as to which they are seeking compensation.

Those plaintiffs established nothing more than routine business relationships with anyone in Pennsylvania.  Cf. Vaughan v. Olympus America, Inc., ___ A.3d ___, 2019 WL 1549345, at *5 (Pa. Super. April 10, 2019) (conceded “agency relationship” with two subsidiaries having their principal places of business (and thus “at home”) in Pennsylvania).  “[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. ” BMS, 137 S. Ct. at 1781.  So what if the defendants interacted with a couple of Pennsylvania third parties who had no contact whatever with the plaintiffs.  Those contacts flunk the BMS test.

General jurisdiction involves general (“continuous and substantial”) contacts – such that the defendant is “at home” where suit is brought.  Specific jurisdiction involves specific (“case linked”) contacts that connect the plaintiff’s particular case with the forum.  In most cases, it is that simple.  The jurisdictional mash-up that Pennsylvania courts have so-far created ultimately proves neither.  As in BMS, “the connection between the nonresidents’ claims and the forum [here] is even weaker.  The relevant plaintiffs are not [Pennsylvania] residents and do not claim to have suffered harm in that State.”  Id. at 1872.

As did the California courts, and the Missouri lower courts, it might well take a lot of litigation sound and fury signifying nothing before would-be mass-tort plaintiffs’ last, best hopes are ultimately brought to heel.  It may (or may not, if the Pennsylvania Supreme Court does the right thing) take another United States Supreme Court case, or even two, but eventually Pennsylvania will follow the same constitutional personal jurisdiction standards as the rest of the country.

We are old enough to treasure the memory of sitting in a darkened movie theater with our mother and sisters watching the original “Mary Poppins.”  We were transfixed and transported by the sheer magic of the film, and we spent the next many months playing our souvenir cast album over and over on our tiny phonograph until the record was so battered that it was lovingly retired to the shelf.   This coming weekend, fifty-plus years later, our now 84-year-mother and her three aging daughters will go together to see the new Mary Poppins “update.”  We feel excited and nostalgic about this outing, but we harbor a suspicion that there can never be another Mary Poppins.   Mary was adventurous, courageous, resourceful, mysterious, resolute, and dauntless.  She was way ahead of her time — “practically perfect in every way.”

As is the tidy personal jurisdiction and venue decision on which we report today.  In Carney v. Guerbet, LLC, 2018 WL 6524003 (E.D. Mo. Dec. 12, 2018), the plaintiff  alleged that he was injured by a linear gadolinium-based contrast agent with which he was injected, in New Jersey, before he underwent an MRI.   He filed suit in the Eastern District of Missouri asserting diversity jurisdiction and naming several corporate defendants, among them Guerbet, LLC (“Guerbet”) and Liebel-Flarsheim Company, LLC (“Liebel’).

Guerbet, LLC’s Motion to Dismiss

The plaintiff alleged that Guerbet was a Delaware LLC with is principal place of business in Indiana and that it had contracted with co-defendants Mallinckrodt, Inc. and Mallinckrodt, LLC to purchase their Missouri-based company which, the plaintiff alleged, produced the contrast agent in question.  The plaintiff alleged that the court had specific personal jurisdiction over Guerbet because the company “engaged in the business of designing, licensing, marketing and/or introducing [the contrast agent] into interstate commerce,” either directly or through third parties.  Carney, 2018 WL 6524003 at *3.  The plaintiff did not allege that he was injected with the contrast agent in Missouri, suffered his injury in Missouri, or received treatment in Missouri.  Guerbet moved to dismiss, asserting the court lacked personal jurisdiction over it.   Guerbet denied that it purchased a Missouri-based business from Mallinckrodt, that any of its members or managers resided in Missouri, that the contrast agent was produced in Missouri, that it received any sales revenue for the contrast agent in Missouri, or that it advertised in any Missouri medium or any medium targeted at Missouri.  Guerbet also submitted an affidavit attesting to the fact that its principal place of business is in New Jersey, not Indiana.

The  court cited BMS for proposition that, “[i]n order for  court to exercise specific jurisdiction over a claim, there must be an affiliation between the forum and the underlying controversy, principally,  an activity or an occurrence that takes place in the forum State. .  . . When there is no such connection, specific jurisdiction is lacking, regardless of the extent of a defendant’s unconnected activities in the State.  Even regularly occurring sales of a product in a state do not justify the exercise of jurisdiction over a claim unrelated to those sales.”  Id. at *4 (internal punctuation and citations omitted).   As such, the court emphasized, allegations that “a non-resident pharmaceutical company researches, designs, tests formulates, inspects, markets or promotes a drug within the forum state are not enough to establish specific personal jurisdiction.”  Id. (citations omitted).    The court concluded that, even if Guerbet had acquired Mallinckrodt’s Missouri-based business, which Guerbet denied, sufficient minimum contacts would not arise from that ownership to confer specific personal jurisdiction over Guerbet.  But rather than dismiss the plaintiff’s claims against Guerbet, the  court found that it was “in the interest of justice”  to transfer the case to the District of New Jersey pursuant to the transfer statute, 28 U.S.C. § 1406(a), “to avoid the costs and delay associated with requiring [the] plaintiff to refile the case in the transferee district.”  Id. at *5.

Liebel’s Motion to Dismiss

Liebel did not challenge the court’s jurisdiction over it.  Instead, it moved to dismiss for improper venue.  Under 28 U.S.C. § 1391(b), venue is proper in a judicial district in which any defendant resides if all defendants are residents of the state in which the district is located, or in a district in which a substantial part of the events giving rise to the action occurred.  If there is no district that qualifies under either of these standards, “any judicial district in which any defendant is subject to the court’s personal jurisdiction” is a proper venue for the action.

Always remember: jurisdictional objections are waivable.  If a party fails to object to a court’s exercise of personal jurisdiction over it, it waives the objection and suffers the ripple effects of that waiver.  Because Liebel did not move to dismiss for lack of jurisdiction, it waived that defense and was deemed to have submitted to the court’s jurisdiction.  In turn, because Liebel was subject to the court’s jurisdiction, venue was proper under the final catch-all provision of 28 U.S.C. § 1391(b) and Liebel’s motion to dismiss was denied.  As the court emphasized, “[i]t would defy logic to deem [a defendant] subject to [the court’s] personal jurisdiction yet dismiss the plaintiff’s claims against it for improper venue for want of personal jurisdiction.”  Id. (internal punctuation and citations omitted).

Instead, the court granted Liebel’s alternative motion to transfer venue to the District of New Jersey, holding that the transfer was appropriate under 28 U.S.C.  § 1404(a) because the convenience of the parties, the convenience of the witnesses, and the interests of justice were best served by transfer.

And so, in the wake of statutes and precedents correctly applied, the case ended up where it belonged in the first place.  We like this decision.  We’ll let you know how we feel about “Mary.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alabama

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

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

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

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

Id. at *10 (citations omitted).

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

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

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

Alaska

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

Arizona

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

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

*          *          *          *

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

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

Lemaire distinguished a prior decision, Bohreer v. Erie Insurance Exchange, 165 P.3d 186, 187-92 (Ariz. App. 2007), as based on an insurance statute.  395 P.3d at 1118.  Bohreer had “agree[d]” with now overruled (see Delaware) Sternberg decision.  165 P.3d at 192.  Arizona federal and state courts follow LemaireKastigar v. Mercedes-Benz USA LLC, 2022 U.S. Dist. Lexis 69714, at *8 (D. Ariz. April 14, 2022) (registration to do business “insufficient” to sustain general jurisdiction); Vantage Mobility Int’l LLC v. Kersey Mobility LLC, 2020 WL 1432835, at *2 (D. Ariz. March 24, 2020) (“categorical assertion of general jurisdiction where the corporation complies with a state’s registration and appointment laws would essentially contradict [Bauman] and BNSF’s limitation of general jurisdiction”); Humphries v. Allstate Insurance Co., 2018 WL 1510441, at *3 (D. Ariz. March 27, 2018) (same as Vantage Mobility); Harter v. Ascension Health, 2018 WL 496911, at *3 (D. Ariz. Jan. 22, 2018) (registration to do business merely a “relevant factor” for specific jurisdiction; not determinative of general jurisdiction); Martin v. Grech Motors, Inc.2020 WL 2091003, at *2, slip op., at 3 (Ariz. Super. April 28, 2020) (“Merely registering a foreign corporation in Arizona and appointing agents for service of process is not sufficient to establish general jurisdiction.”).  Cf. EZScreenPrint LLC v. SmallDog Prints LLC, 2018 WL 3729745 (D. Ariz. Aug. 6, 2018) (registration of domain name with Arizona company does not create general jurisdiction).  Arizona is now solidly behind the general consensus rejecting general jurisdiction by consent.

Arkansas

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

California

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

Colorado

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

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

Connecticut

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

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

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

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

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

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

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

Delaware

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

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

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

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

Id. at 143 (footnotes omitted).

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

District of Columbia

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

Florida

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

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

Georgia

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

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

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

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

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

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

Hawai’i

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

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

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

Idaho

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

Illinois

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

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

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

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

Indiana

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

Iowa

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

Kansas

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

Kentucky

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

Louisiana

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

Maine

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

Maryland

Maryland’s statutory framework eliminates consent through registration as a basis for general jurisdiction.  See Md. Code Ann., Corps. & Assns §7-101 (“[w]ith respect to any cause of action on which a foreign corporation would not otherwise be subject to suit in this State, compliance with [the registration statute]” neither renders a foreign corporation “subject to suit” nor is considered “consent by it to be sued” in Maryland.).  Well before Bauman, the Maryland Court of Appeals accordingly rejected general jurisdiction for merely registering to do business and appointing a service agent.  See Republic Properties Corp. v. Mission West Properties, LP, 895 A.2d 1006, 1022 (Md. 2006) (“service of process, in Maryland, upon a resident agent appointed by a foreign corporation will subject the corporation to State court jurisdiction if, in addition to the fact, and validity, of that service, it is shown that the corporation has sufficient contact with the State to make it constitutionally subject to suit here”); Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988) (presence of the agent for service “would not alone be sufficient to subject [defendant] to suit here”).  Other courts applying Maryland law, of course, agree.  68th Street Site Work Group v. Airgas, Inc., 2021 WL 4255030, at *8 (D. Md. Sept. 16, 2021) (“despite [defendant’s] registration in Maryland . . . this Court lacks general jurisdiction”); Arkansas Nursing Home Acquisition, LLC v. CFG Community Bank, 460 F. Supp.3d 621, 640 (D. Md. May 19, 2020) (in-state registration does not justify general jurisdiction); Gogel v. Maroulis, 2019 WL 5593280, at *5 (D. Md. Oct. 30, 2019) (“even though [defendant] is registered to do business in Maryland and has a registered agent in Maryland[, t]hose facts, standing alone, do not establish general jurisdiction”); Advanced Datacomm Testing Corp. v. PDIO, Inc., 2009 WL 2477559, at *8 (D. Md. Aug. 11, 2009) (Due Process precludes basing general jurisdiction on nothing more than registration/agent for service of process); Tyler v. Gaines Motor Lines, Inc., 245 F. Supp.2d 730, 732 (D. Md. 2003) (“reject[ing] the notion that appointing a registered agent is sufficient to establish general personal jurisdiction over a corporation”).  Maryland looks good.

Massachusetts

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

Michigan

The Michigan Supreme Court held decades ago that:

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

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

Minnesota

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

Ally Bank v. Lenox Financial Mortgage Corp., 2017 WL 830391 (D. Minn. March 2, 2017), upheld consent through a registration as valid form of general jurisdiction, following Knowlton, and distinguishing Bauman as “address[ing] the limits of general jurisdiction over a foreign corporation, not the limits of a defendant’s capacity to consent to personal jurisdiction.”  Id. at *3.  For other Minnesota post-Bauman applications of jurisdiction by consent under Knowlton, seeGreenState Credit Union v. Hy-Vee, Inc., 500 F. Supp.3d 799, 807 (D. Minn. 2020) (“Although defendant makes a compelling argument that Knowlton is inconsistent with the Supreme Court’s recent general jurisdiction decisions, the court agrees with other courts in this district that it is still bound by Knowlton; allowing interlocutory appeal of jurisdictional issue); ResCap Liquidating Tr. v. LendingTree, LLC, 2020 WL 1317719, at *5 (D. Minn. March 20, 2020) (“Knowlton makes clear that consent is an independent basis for jurisdiction.”); American Dairy Queen Corp. v. W.B. Mason Co., 2019 WL 135699, at *6 (D. Minn. Jan. 8, 2019) (“although persuasive arguments can be made that the holding of Knowlton is not reconcilable with the narrowing of the boundaries of due process that govern an analysis of minimum contacts and general personal jurisdiction under [Bauman], this Court nonetheless remains bound by Knowlton“); Ritchie Capital Management, Ltd. v. Costco Wholesale Corp., 2017 WL 4990520, at *2 (D. Minn. Oct. 30, 2017); Bandemer v Ford Motor Co., 2017 WL 10185684, at *3 (Minn. Dist. May 25, 2017); Edmondson v. BNSF Railway Co., 2015 WL 10528453, at *3-4 (Minn. Dist. May 12, 2015).  Cf. McGill v. Conwed Corp., 2017 WL 4534827, at *8 (D. Minn. Oct. 10, 2017) (no general jurisdiction where corporate registration was revoked).  So far, Minnesota is solid the other way, thus remaining a haven for forum shoppers.

Mississippi

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

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

Mississippi looks alright on this issue.

Missouri

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

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

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

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

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

Montana

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

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

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

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

Id. at 8-9 (citations omitted).

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

Nebraska

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

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

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

Nevada

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

New Hampshire

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

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

New Jersey

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

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

*          *          *          *

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

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

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

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

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

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

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

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

New Mexico

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

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

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

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

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

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

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

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

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

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

New York

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

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

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

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

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

North Carolina

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

North Dakota

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

Ohio

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

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

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

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

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

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

Oklahoma

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

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

Oklahoma is OK.

Oregon

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

Pennsylvania

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

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

*          *          *          *

(2) Corporations. −

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

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

(Emphasis added).

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

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

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

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

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

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

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

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

Id. at 571.

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

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

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

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

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

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

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

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

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

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

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

Id. at 545.

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

Finding Sullivan “persuasive,” Ruffing held:

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

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

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

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

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

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

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

Puerto Rico

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

Rhode Island

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

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

South Carolina

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

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

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

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

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

A post-Bauman South Carolina court held that “even after an effective service of process, personal jurisdiction must still comport with due process,” rejecting an argument that mere service on a foreign corporation’s appointed agent effectuated personal jurisdiction.  Gibson v. Confie Insurance Group Holdings, Inc., 2017 WL 2936219, at *6 (D.S.C. July 10, 2017).  See Gracious Living Corp. v. Colucci & Gallaher, PC, 216 F. Supp.3d 662, 668 (D.S.C. 2016) (service of defendant’s statutory agent for service did not create general personal jurisdiction); Ruff v. Strategic Contract Brands, Inc., 2016 WL 4266313, at *5 n.2 (D.S.C. Aug. 12, 2016) (“agree[ing] with Defendant that registering as a corporation in South Carolina, in and of itself, does not necessarily establish personal jurisdiction”) (following Ratliff); Staats v. WJH LLC, 2019 S.C. C.P. Lexis 8933, at *7 (S.C.C.P. Nov. 12, 2019) (“In South Carolina, the threshold of contacts necessary to meet this standard is . . . substantial, and significantly higher than [plaintiff’s] singular legal conclusion that [defendant] is alleged to be ‘. . .  maintain[ing] a registered agent’ in South Carolina.”); Gabrish v. Strickland Marine Agency, Inc., 2005 WL 5168410 (S.C. Dist. Dec. 2, 2005) (following Ratliff).  Rock solid.

South Dakota

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

Tennessee

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

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

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

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

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

Texas

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

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

Utah

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

Vermont

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

Virginia

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

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

We think Virginia will follow the majority rule.

Virgin Islands

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

Washington

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

Post-Bauman Washington precedent rejects general jurisdiction by consent.  Bradley v. Globus Medical, Inc., 2022 WL 2373441, at *3 (Wash. App. June 30, 2022) (“nothing in [Washington law] states or implies that by complying with the requirement to be authorized to do business, a foreign corporation consents to general jurisdiction”; following Washington Equipment) (unpublished); Dokoozian Construction LLC v. Executive Risk Specialty Insurance Co., 2015 WL 12085859, at *2 (W.D. Wash. July 28, 2015) (“reject[ing] the idea that the appointment of an agent for service of process alone works as consent to be sued in that state”); United States ex rel. Imco General Construction, Inc. v. Insurance Co. of Pennsylvania, 2014 WL 4364854, at *3 (W.D. Wash. Sept. 3, 2014) (basing general jurisdiction on registration to do business was “exorbitant” assertion of jurisdiction barred by Bauman); Cox v. Alco Industries, Inc., 2015 WL 10891167, at *4-6 (Wash. Super. Sept. 10, 2015) (registration to do business, even with other contacts, insufficient to support general jurisdiction; following Brown (see Connecticut)).  Washington looks solid.

West Virginia

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

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

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

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

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

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

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

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

Wisconsin

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

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

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

Wyoming

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

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

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

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

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.

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.