“At Home” Demolition: Opening the Floodgates of Forum Shopping

In an April 22, 2021, article, Cassie Love and I wrote about the Supreme Court’s decision in Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (Mar. 25, 2021). We hypothesized that the ruling in that products liability action threatened to “give claimants a master key to the back door of any court—drastically expanding jurisdictional authority of courts and undercutting Justice Ginsburg’s legacy of jurisdiction.” Cassie Love & Cohl K. Love, “‘At Home’ or Merely Visiting? Business Contacts Can Slip In the Back Door Either Way,” Mass Torts Litig. (Summer 2021). The recent Supreme Court decision in Mallory v. Norfolk Southern Railway Co., No. 21-1169 (U.S. June 27, 2023), confirms that the present Court intends to do just that, and companies nationwide should be prepared.

The landmark ruling in International Shoe left much to be desired, requiring that a defendant have only “minimum contacts” with a forum state and providing little guidance as to where a court’s jurisdictional power ended. See Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). As a result, Justice Ginsburg coined the “at home” doctrine, which essentially left open two avenues to general jurisdiction over a corporation: (1) its principal place of business and (2) its incorporation state. See Daimler AG v. Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011). Generally, to exercise jurisdiction over a corporation outside of those two states, a plaintiff would have to show that the court had specific jurisdiction over a defendant. This required a showing that the defendant had contacts with the forum state that directly related to the cause of action alleged. See International Shoe, 326 U.S. at 321; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980). This relational test protected both state sovereignty (see Hanson v. Denckla, 357 U.S. 235, 251 (1958)) and “the primary concern”—“the burden on the defendant” (Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017)).

Undermining decades of precedent, the Ford Motor Court expanded specific jurisdiction to create a quasi-general standard. In a post-Ford world, a company advertising its products in a forum state opened itself up to suit in that forum. 141 S. Ct. at 1022–23. In its rationale, the Court emphasized the number of Ford’s dealerships and sales in the forum states but failed to connect those contacts with the specific cause of action brought by the plaintiffs in that case. Id. at 1023–24. Nevertheless, the Court held that a company that transacts nationwide could be haled into any forum across the country regardless of where the company’s products were designed, manufactured, or sold, as long as the plaintiff was injured in the forum—a concept akin to general jurisdiction.

Recently, in a torts case filed Pennsylvania, a former employee brought claims against Norfolk Southern Railway Co. under the Federal Employer’s Liability Act. See Mallory v. Norfolk Southern Railway Co., 266 A.3d 542, 551 (Pa. 2021). Norfolk, a Virginia corporation with a principal place of business in Virginia, employed the plaintiff for almost 20 years in Virginia and Ohio, where he worked with asbestos and other chemicals. Id. Subsequently, the plaintiff discovered that he had colon cancer, which he attributed to his employment with Norfolk. Id. Although Norfolk carried on business in Pennsylvania, the plaintiff never worked there. Id. When Norfolk objected for lack of personal jurisdiction, the plaintiff argued that registering to do business in Pennsylvania required Norfolk to consent to the “Commonwealth to exercise general personal jurisdiction” over it and agreed that it was “carrying on [] a continuous and systematic part of its general business within [the] Commonwealth.” Id. at 552 (quoting Pa. Cons. Stat. § 5301(a)(2)).

The trial court “observed that the Due Process Clause . . . limits the authority of a state court to exercise personal jurisdiction over non-resident defendants” and dismissed the complaint. Id. It further explained “that [Norfolk’s] purported consent to jurisdiction by registering to do business in the Commonwealth was involuntary and, thus, invalid because the [statute] requires foreign corporations to register . . . before conducting business within Pennsylvania,” thereby violating the corporations’ due process rights. Id. at 553–54. Covering its bases, the court noted that the Supreme Court had previously ruled that a state could mandate that a corporate defendant, as a prerequisite to registering for business in the forum, file a power of attorney authorizing an officer to accept personal service on its behalf. Id. at 554 (citing Pa. Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93, 94 (1917)). However, this “relic” was a product of its age—when jurisdiction was strictly based on territorial limits. Id. International Shoe and its progeny “cast those fictions aside” and overruled that precedent. Burnham v. Superior Court, 495 U.S. 604, 618 (1990).

On appeal, the Supreme Court of Pennsylvania agreed, stating that the “statutory scheme fails to comport with the guarantees of the Fourteenth Amendment; thus, it clearly, palpably, and plainly violated the Constitution.” Mallory, 266 A.3d at 565. It emphasized that “International Shoe transformed the personal jurisdiction analysis from the territorial approach . . . to a contacts-focused methodology” obviating the need for service agents to make a corporation “‘present’ in the forum[.]” Id. Further, the appellate court clarified that Daimler and Goodyear “dramatically altered the general jurisdiction analysis by narrowing significantly the constitutional bases upon which a state court could exercise general personal jurisdiction over a foreign corporation.” Id. (internal quotation marks omitted). In affirming the trial court’s dismissal, the court warned that allowing registration to “invoke[] all-purpose general jurisdiction eviscerates the Supreme Court’s general jurisdiction framework in Goodyear and Daimler and violates federal due process[.]” Id. at 566.

On April 25, 2022, the Supreme Court granted certiorari on the question of whether Norfolk was subject to general jurisdiction in Pennsylvania. Mallory v. Norfolk Southern Railway Co., 142 S. Ct. 2646 (2022). During oral argument, counsel for Norfolk highlighted a history of Supreme Court precedent holding that a state “is not free to exclude foreign corporations from coming in and do[ing] business in [that] state” and thus to condition that right to do business on a waiver of one’s right not to be sued in a state where they are not “at home” is coercive and unenforceable. See Oral Argument at 1:18:58–1:25:12, Mallory v. Norfolk Southern Railway Co., No. 21-1168, (Nov. 8, 2023). Appearing in support of Norfolk, Deputy Solicitor General Curtis E. Gannon affirmed that “Petitioner’s theory of general jurisdiction on the basis of supposed consent is inconsistent with all of [the] Court’s recent cases about general and specific jurisdiction.” Id. at 1:25:17–1:26:13. Nonetheless, in a plurality opinion, the Court vacated the judgment of the appellate court and remanded the case. See generally Mallory v. Norfolk Southern Railway Co., No. 21-1168, slip op. (U.S. June 27, 2023).

In direct contradiction of established jurisprudence, the Court’s rejection of the lower courts’ decisions gives any state the power to subject all corporations doing business within its borders to general personal jurisdiction, regardless of whether they are “at home” in the forum. And the linchpin to its reasoning is Pennsylvania Fire, a century-old case that has been retired for decades. Justice Gorsuch, delivering the opinion of the Court, defends Pennsylvania Fire by saying that its ruling is not “inconsistent with International Shoe.” Mallory, slip op. at 17 (internal quotation marks omitted). Even if that were so, he does nothing to address the blatant contradictions in International Shoe’s progeny, which plainly elucidate that “[t]he Fourteenth Amendment due process constraint” provides that “in-state business . . . does not suffice to permit the assertion of general jurisdiction over claims . . . that are unrelated to any activity occurring in [the forum].” BNSF Ry. Co. v. Tyrrell, 581 U.S. 402 (2017) (emphasis added). Thus, the holding in Pennsylvania Fire that merely registering to do business in a state can give that state general jurisdiction over a corporation was explicitly overruled.

The Mallory Court’s ruling tramples over state sovereignty, giving each state the power to hear cases in which it has no interest and where the heart of the matter lies beyond its borders. Indeed, Justice Gorsuch acknowledges that “[s]ome of [the Court’s] personal jurisdiction cases have discussed the federalism implications of one State’s assertion of jurisdiction over the corporate residents of another” (Mallory, slip op. at 21), but he fails to heed that instructive jurisprudence. What is more, this holding is an announcement to claimants nationwide that they may cherry-pick the best forum for them, regardless of the burden it places on their adversary—a playbook that the Court has historically and consistently reprimanded. See, e.g., Ford Motor Co., 141 S. Ct. at 1031 (admonishing plaintiffs in Bristol-Myers for “engag[ing] in forum-shopping—suing in California because it was thought plaintiff-friendly, even though their case had no tie to the State”); Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. Tex., 571 U.S. 49, 65 (2013) (holding that a statute “should not create or multiply opportunities for forum shopping”).

Much as it did in Ford Motor, the Court in Mallory emphasized the contacts that Norfolk had with Pennsylvania (i.e., 5,000 employees, 2,400 miles of track, and a 70-acre locomotive shop) but failed to connect those contacts to the cause of action brought by the plaintiff in that case. The Court decided long ago that contacts such as these do not make a corporation “at home.” See Hertz Corp v. Friend, 559 U.S. 77, 81 (2010) (holding that it did not matter that Hertz had 273 locations, 2,300 employees, $811 million in revenue, and 3.8 million annual transactions in California—general jurisdiction was measured by the “nerve center” test, or where the corporation “direct[s], control[s], and coordinate[s] the corporation’s activities”).

Following a separate avenue, Justice Gorsuch equates the Pennsylvania statute to the rule of incorporation, stating that the conveyance of general jurisdiction by “filing a piece of paper (a certificate of incorporation)” is embedded in legal precedent. Mallory, slip op. at 22. But this perspective misses the mark: When filing a certificate of incorporation, the business is choosing the state of filing as its “home,” the same way that an individual chooses his or her domicile. Indeed, the bedrock of general jurisdiction being indicated by a corporation’s principal place of business and incorporation state is that “[t]hose affiliations have the virtue of being unique—that is, each ordinarily indicates only one place[.]” Daimler, 571 U.S. at 137 (emphasis added).

Last, Justice Gorsuch stretches to connect a corporation registering for business in Pennsylvania to “tag” jurisdiction—stating, “when an individual takes one step off a plane after flying from New Jersey to California, the jurisdictional consequences are immediate and serious.” Mallory, slip op. at 25. But, in making this argument, he ignores the fact that once the individual steps off that plane, that individual cannot be served in New Jersey, which maintains the integrity of general jurisdiction by limiting that jurisdiction, as noted above, to two forums: for an individual, the individual’s domicile and present location; and for a corporation, its principal place of business and incorporation state. Indeed during oral argument, Justice Gorsuch commented, “one thing that can’t be a problem is treating corporations on par with individuals” (Oral Argument at 0:25:29, Mallory). And yet, the Court’s ruling would not treat them the same way at all. Based on the rationale of the Mallory Court, a corporation cannot move from state to state like an individual but is subject to general jurisdiction in every state it touches. Imagine that an attorney lives in New York and pays a groundskeeper regularly to maintain the premises of her daughter’s home in California. Separately, she employs a nanny in New York, whom she subjects to harassment. Where can the nanny sue the attorney? Currently, arguably, the nanny would be able to sue the attorney only in two places: either New York (where the attorney is domiciled) or another state if the attorney is present and personally served there (present physical location). It matters not that the attorney presently engages a household employee in California because that California employment is entirely unrelated to the New York nanny. But the Court’s ruling opens the doors for a corporation, led by a board of directors in New York, to be sued for a tort in Pennsylvania merely because when it engages employees in that state, it is required to register to do business.

Ironically, Justice Gorsuch delivers this opinion a little over two years after his concurrence in the Ford Motor case, where he explicitly contradicts his own reasoning here:

In many ways, International Shoe sought to start over. The Court “cast . . . aside” the old concepts of territorial jurisdiction. . . . At the same time, the Court also cast doubt on the idea, once pursued by many state courts, that a company “consents” to suit when it is forced to incorporate or designate an agent for receipt of process in a jurisdiction other than its home State. . . . In the place of nearly everything that has come before, the Court sought to build a new test. . . . Even today, this Court usually considers corporations “at home” and thus subject to general jurisdiction in only one or two States.

Ford Motor Co., 141 S. Ct. at 1037–38.

Allowing states to exercise general jurisdiction over corporations merely by virtue of corporations registering to do business—even before a corporation engages in that business—demolishes jurisdictional jurisprudence and Justice Ginsburg’s legacy “at home” precedent. As Justice Gorsuch cautioned in Ford Motor, “we are destined to return where we began.” The Mallory ruling turns the clock back to a time before states’ limitless jurisdictional power was restricted by Daimler and Goodyear. And the “stark warning” that Ms. Love and I gave on April 22, 2021, has come to fruition.