On June 27, 2023, the United States Supreme Court decided Mallory v. Norfolk Southern Railway Co., 2023 WL 4187749, 600 U.S. ___ (June 27, 2023), a decision that likely will reinvigorate forum-shopping efforts by plaintiffs in the Commonwealth of Pennsylvania and possibly elsewhere. The decision—supported by a plurality of Justices and the concurrence of Justice Alito—upholds a Pennsylvania law that requires out-of-state corporations registering to do business in Pennsylvania to consent to general personal jurisdiction within the Commonwealth. Overlooking decades of personal jurisdiction jurisprudence, Mallory reinstates a form of personal jurisdiction previously cast by many courts as a dead letter: general jurisdiction by statutory “consent.”
The facts of Mallory present a classic forum-shopping effort. Plaintiff Robert Mallory, a Virginia resident, had been employed for 20 years by defendant Norfolk Southern Railway—a Virginia corporation headquartered in Virginia. Mr. Mallory alleged that he was exposed to asbestos while working for Norfolk Southern in Ohio and Virginia and developed cancer as a result of that exposure. The traditional framework of personal jurisdiction—guided by the general and specific jurisdiction dichotomy of International Shoe and Daimler—may have allowed Mr. Mallory to file suit in Virginia or even Ohio. But Mr. Mallory instead chose to pursue his claims in Pennsylvania—a state with virtually no connection to either party or to Mr. Mallory’s underlying claim. Indeed, the only alleged connection Pennsylvania had to the suit was that Norfolk Southern had registered to do business in the Commonwealth in 1987.
Mr. Mallory justified his choice of forum by relying on Pennsylvania Consolidated Statute § 5301. That statute holds that an out-of-state corporation, simply by registering to do business in Pennsylvania “as a foreign corporation,” consents to the “general personal jurisdiction” of the “tribunals of this Commonwealth” and “enable[s] such tribunals to render personal orders against such person or representative.” Pa. Cons. Stat. § 5301(a)(2)(i).
Norfolk Southern moved to dismiss Mallory’s petition for lack of personal jurisdiction, contending that Pa. Con. Stat. § 5301(a)(2)(i) could not be applied because it violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed, entering judgment for Norfolk Southern. Plaintiff then appealed to the Pennsylvania Supreme Court, which affirmed the trial court’s reasoning and found the statute to be in violation of Due Process.
The United States Supreme Court then reversed, finding that Norfolk Southern consented to general personal jurisdiction in Pennsylvania for any suit when it registered to do business there. As part of the registration process, the Secretary of the Commonwealth of Pennsylvania conferred on Norfolk Southern the “same rights and privileges” as well as the “same liabilities, restrictions, duties and penalties” as domestic entities. 15 Pa. Cons. Stat. § 402(d). Pennsylvania courts therefore can “exercise general personal jurisdiction” because the corporation consents to appear in its courts on “any cause of action” against it. 42 Pa. Cons. Stat. § 5301(a)(2)(i), (b).
A majority of the Court responded to Norfolk Southern’s Due Process concerns by deferring to the over 100-year-old decision of Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining Co., 243 U.S. 93 (1917). There, the Court upheld a similar Missouri registration statute against the defendant’s Due Process challenge. Prior to Mallory, courts long considered Pennsylvania Fire to be an outdated and effectively overruled precedent, given that it was decided under the then-controlling precedent of Pennoyer v. Neff as opposed to the current framework prescribed by International Shoe and Daimler. See, e.g., Brown v. Lockheed Martin Corp., 814 F.3d 619, 640 (2d Cir. 2016) (“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 Daimler’s ruling would be robbed of meaning by a back-door thief.”); Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 136 (4th Cir. 2018) (“[W]e find it difficult to reconcile the Pennsylvania Fire approach with the modern view of general jurisdiction expressed in the Supreme Court’s recent cases.”). Mallory disregards these distinctions, however, breathing new life into the over 100-year-old case, and raising questions as to how it ultimately will settle in with modern-era personal jurisdiction jurisprudence.
While Mallory represents a loss for out-of-state corporations doing business in Pennsylvania (and potentially other states), it is not a complete loss. Because the decision was effectively a 4-1-4 plurality, the propriety of the state registration statute requiring jurisdictional “consent” remains on shaky ground. In particular, while Justice Alito joined the portion of the Court’s opinion disposing of Norfolk Southern’s Due Process challenge, his concurring opinion raised separate Constitutional concerns over such statutes, including by way of the Commerce Clause. As noted by Justice Alito, because the dormant Commerce Clause gives out-of-state corporations the right to do business in another state, a state’s authority to impose special conditions (e.g., forced “consent” to jurisdiction) on that right is limited. However, because Norfolk Southern did not raise this challenge in the lower courts, the argument could not be decided on this appeal.
In the wake of Mallory, defendants should expect an uptick in plaintiff forum-shopping efforts in Pennsylvania and potentially other states as well, as Due Process no longer presents a hurdle to statutory “consent.” As evinced in Justice Alito’s concurrence, however, questions remain as to the Constitutionality of such statutes—likely to be part of the next wave of personal jurisdiction challenges addressed by the federal and state judiciaries.
* Faegre Drinker Summer Associate Marie Lundgren assisted with the preparation of this post.
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