Mallory v. Norfolk Southern Railway Co.

This is another case that will likely appear in law school civil procedure classes, and Justice Barrett thinks the majority (or plurality) has effected a “sea change” for obtaining personal jurisdiction over corporate defendants.

Mallory is a retired former employee of Norfolk Southern Railway Company (“Norfolk Southern”). Over 20 years, he worked for the company in both Ohio and Virginia. He performed work that exposed him to carcinogens.

When he retired, Mallory moved to Pennsylvania and then back to Virginia. When he was diagnosed with cancer that he thinks was caused by his employment, he sued Norfolk Southern in Pennsylvania under the Federal Employers’ Liability Act (45 U.S.C. §§55-60). That law creates a workers compensation scheme permitting railroad employees to recover damages for their employers’ negligence.

Norfolk Southern argued that the Due Process clause of the Fourteenth Amendment barred Pennsylvania courts from finding personal jurisdiction over the railroad company. The “place of the wrong” was alleged to be Ohio and Virginia, the there was arguably no “specific jurisdiction.” The company was incorporated in Virginia and had its headquarters there, so there was arguably no “genera jurisdiction.”

Mallory answered that the railroad operates and has repair shops in Pennsylvania and— probably more importantly—that it was registered to do business in Pennsylvania. Pennsylvania requires out-of-state companies to register to do business there and agree to appear in its courts on “any cause of action” against them, so the corporation had waived any defense about lack of personal jurisdiction.

The Pennsylvania courts found that the statute consented to jurisdiction when it obeyed the registration statute, but that forcing them to do so offended Due Process and the requirement of minimum contacts with the forum state for purposes of establishing personal general jurisdiction.

Georgia’s highest court had found, in a similar case, that a similar statute operated to consent to jurisdiction and that it did not offend due process. In light of that split of authority, the Supreme Court agreed to hear the case.

Citing a precedent from 1917, Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93 (1917), the Supreme Court held that state statutes like those in Pennsylvania and Georgia that require corporations to consent in some way to personal jurisdiction in the state as a cost of doing business do not offend due process’s personal jurisdiction requirements. Consent to be sued—part of the registration process--waives the objection to personal jurisdiction.

The court rejected the argument that International Shoe Co. v. Washington, 326 U. S. 310 (1945), had quietly overruled Fire Ins. Co. of Philadelphia. Justice Gorsuch summarized International Shoe as holding that even a corporation who did not sign any sort of consent to be sued in a foreign state could be haled into that state’s courts if its activities in the state made it reasonable and just to sue the out-of-state corporation there. In other words, before International Shoe, general jurisdiction was the only game in town, but International Shoe essentially invented the concept of “specific jurisdiction.” But this case is premised on the same sort of facts in the 1917 case—consent to personal jurisdiction—not the activity of the corporation in Pennsylvania or minimum contacts. Mallory’s case did not turn on specific jurisdiction.

Essentially, this decision confirms that in addition to “general” and “specific” forms of personal jurisdiction, registration and “consent-based jurisdiction” to be sued in the forum state is a third path to establishing personal jurisdiction. (NOTE: Honestly, they should just lump this in as a subset of “general” jurisdiction, which is premised on the out-of-state corporation having such a presence in the state that it can be considered like a home resident. That is exactly what the registration and consent to be sued accomplishes.)

The court rejected any notion that suing the railroad in Pennsylvania was unfair, citing the company’s website where it boasts about its presence in Pennsylvania. The court also noted that it employed 5,000 people in the state¹. It operates more train track in that state than anywhere else, and it employs more people there than its supposed home in Virginia.

The closest Norfolk Southern came to scoring points with the majority—in an argument Justice Gorsuch called “half right”—is by insisting that Pennsylvania infringed the right of sovereignty and principles of federalism by taking jurisdiction over a case that should be brought in Virginia where the headquarters was located (or one of the states that was a place where the exposure to carcinogens occurred). Justice Gorsuch conceded that there are cases along those lines, but none of them involved one of these register-in-the-state, consent-to-jurisdiction agreements. In a statement sure to be quoted in many briefs going forward, Justice Gorsuch rejects the state’s-rights/federalism theory by stating, “After all, personal jurisdiction is a personal defense that may be waived for forfeited.”

JUSTICE JACKSON CONCURRED SPECIALLY, noting that personal jurisdiction is an “individual, waivable right.” Whether a defendant waives personal jurisdiction explicitly, implicitly, or constructively, none of this offends the Due Process clause of the Fourteenth Amendment. Norfolk Southern agreed to register as a foreign corporation in Pennsylvania in exchange for the ability to conduct business within the Commonwealth and receive associated benefits, which constituted a valid waiver. She did not think they were forced into it, as she opined that they could have conducted the railroad business without meeting the requirements of the statute to register.

JUSTICE ALITO CONCURRED IN PART, writing that he agreed with the holding because he assumed that it was Constitutional for a state to demand that a corporation register in order to do business there. He noted that Norfolk Southern had asserted a Dormant Commerce Clause argument in the trial court and that they could argue that theory on remand, but the Pennsylvania Supreme Court had not addressed it, so it wasn’t part of the consideration in this case.

Alito’s opinion hints strongly that he’ll be willing to find that the register-to-do-business requirement is unconstitutional, which would then likely render the waiver invalid. He notes that “[u]nder our modern framework, a state law may offend the Commerce Clause’s negative restrictions in two circumstances: when the law discriminates against interstate commerce or when it imposes “undue burdens” on interstate commerce.” He adds: “Discriminatory state laws are subject to ‘a virtually per se rule of invalidity.’” He opines that there “is reason to believe” that mandatory registration is a form of discrimination against out-of-state companies or significantly burdens them because it obligates them to defense against civil actions with no connection to the forum state. (NOTE: I hate to say it, but I feel like Alito is right. The idea that an American company has to specially register to do business in an American state feels wrong).

JUSTICE BARRET DISSENTED, and she was JOINED BY CHIEF JUSTICE ROBERTS,

JUSTICE KAGAN, and JUSTICE KAVANAUGH. Justice Barrett essentially says that these consent-to-be-sued registration statutes are a dirty trick and an unfair way of creating a loophole where personal jurisdiction to sue a corporation would otherwise be lacking.

Justice Barrett argues that this third form of jurisdiction, consent-based jurisdiction, is illegitimate. She writes that Supreme Court case law divides personal jurisdiction into two categories: specific and general. Both are subject to the demands of the Due Process Clause. Specific jurisdiction, as its name suggests, allows a state court to adjudicate specific claims against a defendant. When a defendant “purposefully avails itself of the privilege of conducting activities within the forum State,” that State’s courts may adjudicate claims that “‘arise out of or relate to the defendant’s contacts’ with the forum.” (NOTE: The most typical type of specific jurisdiction is proof that the forum state is the place of the wrong). General jurisdiction, by contrast, allows a state court to adjudicate “‘any and all claims’ brought against a defendant.” This sweeping authority exists only when the defendant’s connection to the State is tight—so tight, in fact, that the defendant is “‘at home’” there. An individual is typically “at home” in her domicile, and a corporation is typically “at home” in both its place of incorporation and principal place of business. Absent an exceptional circumstance, general jurisdiction is cabined to these locations. But now the majority/plurality has identified a way for states to circumvent either of these paths to jurisdiction and strong-arm corporations into agreeing to be sued somewhere far from “home” even if the case does not arise out of actions taken in the forum state.

The dissent thinks the mandatory registration is a far cry from actual consent, agreeing with the Pennsylvania Supreme Court that it’s really “compelled submission to general jurisdiction by legislative command.” (NOTE: See? Four justices agree with me that this consent stuff is really just a subset of general jurisdiction, not a third theory. Justice Gorsuch really needs to start reading Terry’s Takes.)