United States Supreme Court Backtracks On Recent Trajectory Away From Assertions Of General Jurisdiction In Mallory V. Norfolk Southern

• Published date: 03 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Personal Injury
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Charles Anderson, Alyson Hau, Jarred Reed and Jeffrey Bash

Washington, D.C. (June 28, 2023) - On June 27, 2023, the U.S. Supreme Court issued a sharply divided opinion that appears to backtrack on the Court's steady trajectory away from assertions of general jurisdiction in recent years, e.g. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011), Daimler AG v. Bauman, 134 S. Ct. 746 (2014), BNSF Railway Co. v. Tyrrell, 2017, 137 S. Ct. 1549 (2017). Relying on a case from 1917, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93 (1917), Justice Gorsuch, writing on behalf of the plurality, (Justices Gorsuch, Thomas, Sotomayor, and Jackson) (Justice Alito concurring) found that Norfolk Southern "consented" to jurisdiction in Mallory via 42 Pa. Cons. Stat. '5301(a)(2)(i),(b) by registering to do business in Pennsylvania. This statute, 42 Pa. Cons. Stat. '5301, specifically permits jurisdiction over a corporation "incorporat[ed] under or qualifi[ed]as a foreign corporation under the laws of this Commonwealth ... for any cause of action that may asserted against him, whether or not arising from acts enumerated in this section."

In Pennsylvania Fire, the U.S. Supreme Court addressed the Due Process Clause of the U.S. Constitution in connection with a Missouri law that required an out-of-state insurance company desiring to transact any business in the state to file paperwork agreeing to (1) appoint a state official to serve as the company's agent for service of process and (2) accept service on that official as valid in any suit. After more than a decade of complying with the law, Pennsylvania Fire was served with process and argued that the Missouri law violated due process. The Court unanimously found that there was "no doubt" that Pennsylvania Fire could be sued in Missouri because it had agreed to accept service of process in Missouri on any suit as a condition of doing business there.

It is clear the plurality in Mallory was troubled by the inequities of constitutionally permitting "tag-jurisdiction" on individuals but finding similar jurisdiction unconstitutional for corporations. The majority expressed the opinion that jurisdiction by consent has a long history of jurisprudence and that International Shoe v. Washington, 326 U.S. 310 (1945) and its progeny were an "additional road" to jurisdiction over foreign corporations that did not "consent" to suit. The Court also readily dispensed with Norfolk Southern's argument of unfairness given its connection to...