Barrett v. Union Pacific Railroad Co.

No. 11 March 2, 2017 115

IN THE SUPREME COURT OF THE

STATE OF OREGON

Christopher S. BARRETT,

Plaintiff-Adverse Party,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Relator.

(CC 15CV27317; SC S063914)

En Banc

Original proceeding in mandamus.*

Argued and submitted November 10, 2016.

Wendy M. Margolis, Cosgrave Vergeer Kester LLP,

Portland, argued the cause and filed the briefs for relator.

Also on the brief was Julie A. Smith.

Douglas A. Rossi, Rossi Vucinovich PC, Seattle, argued

the cause for adverse party. James K. Vucinovich filed

the brief for adverse party. Also on the brief was Paul S.

Bovarnick, Rose Senders & Bovarnick LLC, Portland.

Lisa T. Hunt, Law Office of Lisa T. Hunt, Lake Oswego,

filed the brief for amicus curiae Oregon Trial Lawyers

Association.

Lawrence M. Mann, Alper & Mann, PC, Bethesda,

Maryland, filed the brief for amicus curiae Academy of Rail

Labor Attorneys.

KISTLER, J.

Peremptory writ to issue.

Walters, J., dissented and filed an opinion, in which

Brewer, J., joined.

______________

* On petition for writ of mandamus from an order of Multnomah County

Circuit Court, Kenneth R. Walker, Judge.

116 Barrett v. Union Pacific Railroad Co.

Case Summary: Plaintiff brought an action in Oregon against a foreign

corporation to recover for injuries that he sustained in Idaho. The corporation

moved to dismiss because Oregon lacks general jurisdiction over it. The trial

court denied the motion, and the Supreme Court issued a peremptory writ of

mandamus to the trial court. Held: (1) Under Daimler AG v. Bauman, 571 US

___, 134 S Ct 746, 187 L Ed 2d 624 (2014), a state ordinarily can exercise general

jurisdiction in one of two places: where the corporation is incorporated and where

it maintains its principal place of business; (2) this case does not come within

the limited exception recognized in Daimler to that rule: Oregon cannot be con-

sidered a surrogate for the corporation’s state of incorporation or principal place

of business; and (3) the Federal Employee Liability Act does not bring this case

within the exception that Daimler recognized.

Peremptory writ to issue.

Cite as 361 Or 115 (2017) 117

KISTLER, J.

The primary question in this case is whether the

Due Process Clause of the Fourteenth Amendment permits

Oregon to exercise general jurisdiction over an interstate

railroad for claims unrelated to the railroad’s activities in

this state. The trial court ruled that it could exercise gen-

eral jurisdiction over the railroad and denied the railroad’s

motion to dismiss plaintiff’s negligence action for lack of per-

sonal jurisdiction. After the railroad petitioned for a writ of

mandamus, we issued an alternative writ to the trial court,

which adhered to its initial ruling. The case accordingly

came to us for briefing and argument. We now hold that due

process does not permit Oregon courts to exercise general

jurisdiction over the railroad.

Plaintiff sustained injuries while working for Union

Pacific Railroad Company “as a spiker machine operator

near Minidoka, Idaho.”1 According to plaintiff’s complaint,

the machine that he used to set spikes was in a “state of

disrepair,” which subjected him to “excessive vibration and

jarring.” Additionally, Union Pacific’s decision to reduce

“the spiker machine’s customary three-[person] crew to a

two-[person] crew” placed greater physical demands on

plaintiff, causing or contributing to the injuries he suffered.

As a result of Union Pacific’s alleged negligent maintenance

of the spiker machine and its decision to reduce the num-

ber of persons operating that machine, plaintiff suffered

economic and noneconomic damages totaling approximately

$615,000.

Union Pacific is a Delaware corporation with its

principal place of business in Omaha, Nebraska.2 It currently

1

This mandamus proceeding arises out of plaintiff’s negligence action

against Union Pacific. We take the facts from the record that was developed in

the underlying action on Union Pacific’s motion to dismiss for lack of personal

jurisdiction. See Willemsen v. Invacare Corp., 352 Or 191, 195 n 2, 282 P3d 867

(2012) (explaining that the record on a motion to dismiss for lack of personal

jurisdiction includes the complaint, affidavits, and other evidence that the par-

ties submitted on the motion). We assume, for the purposes of this proceeding,

that the facts alleged in plaintiff’s complaint are true and construe any disputed

facts consistently with the trial court’s ruling. See id.

2

Union Pacific’s corporate offices are located in Omaha, as are its “rail traffic

control headquarters.”

118 Barrett v. Union Pacific Railroad Co.

operates railroads in 23 states, including Oregon. It has

been engaged in business in Oregon on an ongoing basis

for a substantial period of time; one of its now-merged sub-

sidiaries first began operating in Oregon in 1863.3 Oregon

also forms a significant part of Union Pacific’s business.

The company owns approximately 32,000 miles of track in

23 states, with approximately 3.4 percent of those tracks in

Oregon. In terms of the amount of track that Union Pacific

owns, Oregon is thirteenth among the 23 states. Oregon

is ninth in terms of employees and fourteenth among the

23 states in revenues generated.

Plaintiff brought this action in Oregon to recover

for injuries that he sustained in Idaho. In response to Union

Pacific’s motion to dismiss for lack of personal jurisdiction,

plaintiff raised essentially two arguments. First, he argued

that Oregon has general jurisdiction over Union Pacific

under the Federal Employees Liability Act (FELA), 35 Stat

65, as amended, codified as 45 USC sections 51-60. Second,

he argued that, apart from FELA, Oregon has general juris-

diction over Union Pacific because Union Pacific’s actions in

Oregon were “so substantial and of such a nature as to jus-

tify suit against [Union Pacific] on causes of actions aris-

ing from dealings entirely distinct from those activities.”

(Quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,

564 US 915, 924, 131 S Ct 2846, 180 L Ed 2d 796 (2011).) On

review, plaintiff adds a third argument. He contends that

Oregon has specific jurisdiction over Union Pacific in this

case. We begin with plaintiff’s second argument.4

3

The Oregon Steam Navigation Co. began in 1863 as a portage railroad

to carry steamship travelers around rapids and falls on the Columbia River. It

merged with Oregon Railway & Navigation Co. (OR&N), which became part of a

railroad system that Union Pacific leased and that connected to a Union Pacific

subsidiary, Oregon Short Line (OSL). Although OR&N and OSL operated as sep-

arate corporate entities well into the twentieth century, they merged with Union

Pacific in 1987.

4

Ordinarily, we would begin with the federal statutory issue that plain-

tiff raises before reaching any constitutional limitation on exercising jurisdic-

tion over Union Pacific. However, plaintiff has not explained how Congress can

authorize states to exercise jurisdiction that due process forbids. Moreover, as

explained below, the section of FELA on which plaintiff relies does not purport to

confer authority on state or federal courts to exercise personal jurisdiction over

out-of-state corporate defendants. We accordingly begin with plaintiff’s constitu-

tional claim and then turn to his reliance on the federal statute.

Cite as 361 Or 115 (2017) 119

I.  GENERAL JURISDICTION

ORCP 4 L authorizes Oregon courts to exercise per-

sonal jurisdiction over out-of-state defendants to the extent

permitted by the state and federal constitutions. Union

Pacific identifies no state constitutional limit on the trial

court’s authority to hear plaintiff’s claims, and the question

accordingly becomes whether due process permits Oregon to

exercise general jurisdiction over Union Pacific. In answer-

ing that question, we focus initially on the Court’s discus-

sion of general jurisdiction in Daimler AG v. Bauman, 571

US ___, 134 S Ct 746, 187 L Ed 2d 624 (2014).

The Court held in Daimler that California courts

could not exercise general jurisdiction over Daimler AG,

a German public stock company, to hear claims that were

unrelated to that state.5 134 S Ct at 762. We discuss

Daimler in greater detail below. Essentially, however, the

Court explained that a corporation will be “at home” in a

state and thus subject to general jurisdiction in two par-

adigmatic places: the corporation’s place of incorporation

and its principal place of business. Id. at 760. Although the

Court did not foreclose the possibility that a corporation

could be “at home” in other places, it identified a limited set

of “exceptional” circumstances that will provide compara-

ble contacts. Id. at 761 n 19. In doing so, the Court rejected

the argument that plaintiff raises here—that a substantial

and continuous business presence within a state is, in and

of itself, sufficient to give rise to general jurisdiction over an

out-of-state corporate defendant. Id. at 761-62.

In reaching those conclusions, the Court began by

tracing the development of specific and general jurisdiction.

The Court explained that both doctrines find their roots in

International Shoe Co. v. Washington, 326 US 310, 66 S Ct

154, 90 L Ed 95 (1945). The plaintiff’s claim in International

Shoe arose out of the defendant’s contacts with the forum

5

In Daimler, employees of Daimler’s Argentinean subsidiary sued Daimler

in federal district court in California, claiming that Daimler’s Argentinean sub-

sidiary had conspired with the security police in that country to kidnap, torture,

and kill the subsidiary’s employees. Because the plaintiffs’ claims had no con-

nection to California, the plaintiffs had to establish that Daimler’s presence in

California was sufficient to give that state general jurisdiction over it.

120 Barrett v. Union Pacific Railroad Co.

state, and the question in that case was whether those

in-state contacts were sufficient to give the forum state per-

sonal jurisdiction over the defendant. That type of personal

jurisdiction, now called specific jurisdiction, turns on “ ‘the

relationship among the defendant, the forum, and the litiga-

tion.’ ” Daimler, 134 S Ct at 754 (quoting Shaffer v. Heitner,

433 US 186, 204, 97 S Ct 2569, 53 L Ed 2d 683 (1977)). That

is, specific jurisdiction “depends on an affiliatio[n] between

the forum and the underlying controversy, principally, activ-

ity or an occurrence that takes place in the forum State and

is therefore subject to the State’s regulation.” Goodyear, 564

US at 919 (alteration in original; internal quotation marks

omitted).

International Shoe also recognized a related but

separate category of personal jurisdiction, which has been

labeled general jurisdiction. More specifically, International

Shoe recognized that a foreign corporation’s “continuous

corporate operations within a state [may be] so substantial

and of such a nature as to justify suit against it on causes

of action arising from dealings entirely distinct from those

activities.” 326 US at 318. The Court did not have occasion

in International Shoe to determine how substantial an out-

of-state corporation’s activities within the forum state must

be before the forum could exercise general jurisdiction over

the corporation. International Shoe, as well as most of the

Court’s subsequent personal jurisdiction cases, have focused

instead on specific jurisdiction.

After International Shoe and before Daimler, only

three of the Court’s cases had considered when a foreign

corporation’s contacts with a forum will be sufficient to per-

mit the forum state to exercise general jurisdiction over it.

One case held that a Philippine mining company that tem-

porarily had relocated to Ohio during the Second World War

was subject to general jurisdiction in Ohio. See Daimler, 134

S Ct at 756 (describing Perkins v. Benguet Mining Co., 342

US 437, 72 S Ct 413, 96 L Ed 485 (1952)). As the Court

explained in Daimler, “[g]iven the wartime circumstances,

Ohio could be considered a surrogate for the [mining com-

pany’s] place of incorporation or head office.” Id. at 756 n 8

(internal quotation marks omitted); see also Goodyear, 564

Cite as 361 Or 115 (2017) 121

US at 928 (describing Perkins the same way).6 Each of the

other two cases concluded that the out-of-state defendant’s

occasional contacts with the forum state were insufficient

to give that state general jurisdiction. Goodyear, 564 US at

929;7 Helicopteros Nacionales de Colombia v. Hall, 466 US

408, 104 S Ct 1868, 80 L Ed 2d 404 (1984).8

The Court’s decision in Goodyear has proved nota-

ble not so much for its holding but for its explanation of when

a corporation’s activities within a forum state will be suffi-

cient to give rise to general jurisdiction. The Court explained

in Goodyear that “[a] court may assert general jurisdiction

over foreign (sister-state or foreign-country) corporations

to hear any and all claims against them when their affili-

ations with the State are so ‘continuous and systematic’ as

to render them essentially at home in the forum State.” 564

US at 919. The Court did not define with any specificity in

Goodyear when a foreign corporation will be “essentially at

home” in the forum state; the contacts in that case were so

few that further definition was unnecessary.9 Rather, the

task of defining when a foreign corporation will be “essen-

tially at home” fell to Daimler.

6

In Daimler, Justice Sotomayor read Perkins for the proposition that the

displaced company had a substantial presence in Ohio but also maintained

extensive operations elsewhere. 134 S Ct at 769-70 n 8 (opinion concurring in

the judgment). She accordingly disagreed that Ohio was a surrogate for the

company’s head office. Id. Whatever the merits of that reading of Perkins, the

Court’s interpretation of Perkins in Goodyear and Daimler controls our view of

that case.

7

In Goodyear, the Court held that the North Carolina courts lacked gen-

eral jurisdiction over the European subsidiaries of a United States parent to

hear claims against those subsidiaries arising out of an accident in France. The

subsidiaries had no presence in North Carolina, and the tires that they manu-

factured were sold primarily in European and Asian markets. 564 US at 920-

21. Only a small percentage of the subsidiaries’ tires were distributed in North

Carolina by other Goodyear affiliates. Id.

8

In Helicopteros, the Court held that Texas lacked general jurisdiction over a

Colombian corporation when the corporation’s contacts with Texas were confined

to “sending its chief executive officer to Houston for a contract-negotiation ses-

sion; accepting into its New York bank account checks drawn on a Houston bank;

purchasing helicopters, equipment, and training services from [a Texas-based

helicopter company] for substantial sums; and sending personnel to [Texas] for

training.” Helicopteros, 466 US at 416.

9

In Goodyear, the Court explained that a corporation would be “at home” in

a state if the corporation were comparable to a domestic enterprise in that state,

but it did not provide further guidance. See 564 US at 924.

122 Barrett v. Union Pacific Railroad Co.

On that issue, there was no dispute in Daimler that

the German corporation’s own activities in California were

insufficient to permit that state to exercise general juris-

diction over it. Rather, the plaintiffs’ theory (and the Ninth

Circuit’s holding) turned on the proposition that Mercedes

Benz USA (MBUSA), Daimler’s United States subsidiary,

was Daimler’s agent, that MBUSA’s in-state activities were

attributable to Daimler, and that MBUSA was subject to

general jurisdiction in California—a proposition that was

undisputed in that case.

In considering that theory, the Court questioned

whether, even if MBUSA were Daimler’s agent, its activ-

ities were attributable to Daimler. Id. at 759 (holding out

the possibility that MBUSA’s activities in California would

be attributable to Daimler only if MBUSA were Daimler’s

alter ego). In a similar vein, the Court questioned whether

an agent’s contacts with the forum would be attributable to

the principal for the purpose of establishing general juris-

diction even though those contacts would be attributable to

the principal for the purpose of establishing specific juris-

diction. Id. Finally, the Court questioned whether California

could exercise general jurisdiction over MBUSA. See id. at

758.

The Court concluded, however, that “[e]ven if we

were to assume that MBUSA is at home in California,

and further to assume MBUSA’s contacts are imputable to

Daimler, there would still be no basis to subject Daimler to

general jurisdiction in California, for Daimler’s slim con-

tacts with the state hardly render it at home there.” Id. at

760. In reaching that conclusion, the Court identified two

paradigmatic places where a corporation will be “at home”:

“the place of incorporation and principal place of business.”

Id. The Court did not “foreclose the possibility that in an

exceptional case, see, e.g., Perkins,” a corporation could be

at home in some place other than its place of incorporation

and its principal place of business. Id. at 761 n 19. However,

the Court rejected the plaintiffs’ argument that a corpo-

ration will be at home “in every State in which a corpora-

tion engages in a substantial, continuous, and systematic

course of business”—an argument that the Court described

Cite as 361 Or 115 (2017) 123

as “unacceptably grasping.” Id. at 761 (internal quotation

marks omitted).10

The Court explained why MBUSA’s activities in

California—even if they were imputed to Daimler and even

if they were sufficient to give rise to general jurisdiction over

MBUSA—were not sufficient to establish general jurisdic-

tion over Daimler:

“[T]he general jurisdiction inquiry does not ‘focu[s] solely

on the magnitude of the defendant’s in-state contacts.’

* * * General jurisdiction instead calls for an appraisal of

a corporation’s activities in their entirety, nationwide and

worldwide. A corporation that operates in many places can

scarcely be deemed at home in all of them. Otherwise, ‘at

home’ would be synonymous with ‘doing business’ tests

framed before specific jurisdiction evolved in the United

States. * * * Nothing in International Shoe and its prog-

eny suggests that ‘a particular quantum of local activity’

should give a State authority over a ‘far larger quantum of

. . . activity’ having no connection to any in-state activity.”

Id. at 762 n 20 (citation omitted; bracket in original). The

Court reasoned that, if MBUSA’s California activities gave

that state general jurisdiction over Daimler, then every

other state in which MBUSA’s sales were sizeable could also

assert general jurisdiction over Daimler—a result that the

Court rejected as an “exorbitant exercis[e] of all purpose

jurisdiction.” Id. at 761.

Given Daimler, we conclude that Oregon may not

exercise general jurisdiction over Union Pacific. There is no

dispute that Union Pacific has engaged in a “substantial,

continuous, and systematic course of business” in Oregon.

However, Union Pacific’s activities in Oregon, while sub-

stantial, are only a small part of its larger business activ-

ities in 23 states. To paraphrase the Court’s reasoning in

Daimler, if Oregon can exercise general jurisdiction over

Union Pacific because that company’s activities in this state

10

The Court recognized that a corporation’s “continuous and systematic”

activities in the forum state will give rise to specific jurisdiction when they “also

give rise to the liabilities sued on.” 134 S Ct at 761 (quoting International Shoe,

326 US at 317). However, as noted, it rejected the plaintiff’s argument that sys-

tematic and continuous activities in the forum state were sufficient to give rise to

general jurisdiction in every state in which those activities occurred.

124 Barrett v. Union Pacific Railroad Co.

are substantial and continuous, then every state in which

Union Pacific has engaged in similar activities can assert

general jurisdiction over it, and the Court was clear that a

rule of decision that results in multiple jurisdictions simul-

taneously asserting general jurisdiction over an out-of-state

defendant is at odds with the Due Process Clause.11

Plaintiff, however, advances three interrelated rea-

sons why Daimler does not foreclose Oregon from exercising

general jurisdiction over Union Pacific. He contends initially

that the touchstone of International Shoe is “fairness” and

that there is nothing unfair in subjecting Union Pacific to

general jurisdiction in a state, such as Oregon, where it has

a substantial and continuous business presence. Second,

and perhaps in support of the first point, plaintiff notes

that Union Pacific employs 1,700 persons in Oregon, has

an annual Oregon payroll of $144.6 million, owns and oper-

ates almost 1,100 miles of track throughout the state, and

generates over $645 million annually in revenue from its

Oregon operations. Finally, plaintiff notes that this case is

factually distinguishable from Daimler. It does not require

attributing the activities of an in-state agent to a foreign

corporation to hear a claim that arose in another country,

as in Daimler. Rather, this case focuses on Union Pacific’s

activities in Oregon to determine whether that company is

subject to general jurisdiction in this state for an injury that

resulted from Union Pacific’s alleged negligence in a neigh-

boring state.

While we appreciate the distinctions that plain-

tiff identifies, we are not persuaded that Daimler can be

distinguished so easily. We agree with plaintiff that, in

11

The Court identified primarily two reasons why “only a limited set of affili-

ations with a forum will render a defendant amenable to all-purpose jurisdiction.”

Daimler, 134 S Ct at 760. First, the Court explained that, following International

Shoe, specific jurisdiction has become (and should be) the predominant means

by which a state may assert jurisdiction over an out-of-state defendant. General

jurisdiction should play only a subsidiary role. Id. at 757-58 and n 9. Second, the

rules for determining general jurisdiction should provide clear guides to out-of-

state defendants, thus “permit[ting] 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 761-62 (internal quotation marks

omitted). The rules that the Court announced for determining general jurisdic-

tion further those goals.

Cite as 361 Or 115 (2017) 125

International Shoe, the Court invoked fair play as a touch-

stone of due process. However, since that time, the Court

has refined and clarified the rules that guide our determina-

tion of when due process permits states to exercise general

jurisdiction over out-of-state defendants. We cannot rely on

the general invocation of fair play in International Shoe to

undo the more specific rules for determining general juris-

diction that the Court announced in Daimler.12

Plaintiff’s related point—that Union Pacific is

engaged in substantial and continuous business activi-

ties in Oregon—does not provide a viable basis for distin-

guishing Daimler. In Daimler, the Court explicitly assumed

that MBUSA’s activities in California could be imputed to

Daimler. Those activities included “the presence of multi-

ple offices, the direct distribution of thousands of prod-

ucts accounting for billions of dollars in sales, and contin-

uous interaction with customers” in California. Id. at 764

(Sotomayor, J., concurring in the judgment). As the Court

explained, however, in response to the concurring opinion,

“the general jurisdiction inquiry does not focu[s] solely on the

magnitude of the defendant’s in-state contacts. * * * General

jurisdiction instead calls for an appraisal of a corporation’s

activities in their entirety.” Id. at 762 n 20. Similarly, in this

case, while Union Pacific’s activities in Oregon are substan-

tial, they form only a small part of its activities in the 23

states in which it operates. Viewed through the lens that

Daimler provided, those contacts are not sufficient to confer

general jurisdiction over Union Pacific. If they were, most (if

not all) of the states in which Union Pacific operates could

exercise general jurisdiction over it. However, as the Court

explained, due process does not permit such an “exorbitant

exercise” of general jurisdiction.

Finally, plaintiff argues that this case is factu-

ally distinguishable from both Daimler and Goodyear.

To be sure, there are differences between the two cases.

Daimler involved an international corporation, whose ties to

12

Plaintiff has not explained why he could not have brought an action in

Idaho where the injury occurred or why it would be unfair, as International Shoe

used that concept, to limit personal jurisdiction over Union Pacific to the state

in which it allegedly caused the injury and those states in which Union Pacific is

incorporated and maintains its principal place of business.

126 Barrett v. Union Pacific Railroad Co.

California depended on attributing its subsidiary’s in-state

activities to it. Moreover, the plaintiffs’ claims in Daimler

arose outside of the United States while plaintiff’s claims

in this case arose in a neighboring state. Perhaps the Court

could have relied on those facts in holding that California

lacked general jurisdiction over Daimler. It did not do so,

however. Rather, the Court expressly assumed that MBUSA’s

activities in California were attributable to Daimler but

found MBUSA’s activities in California insufficient in the

context of Daimler’s larger operations. Nor does the interna-

tional character of the issues in Daimler provide a basis for

distinguishing that decision. The Court expressly declined

to adopt the rationale advanced by Justice Sotomayor’s opin-

ion concurring in the judgment, which turned on the lack of

a connection between California and a claim by Argentinean

plaintiffs against a German corporation. Id. at 762 n 20.13

However narrowly the Court might have written Daimler,

we are not persuaded that the decision, as written, can be

fairly distinguished.

II.  SECTION 56 OF FELA

Plaintiff also relies on section 56 of FELA. Congress

enacted FELA in 1908 to provide a federal cause of action for

injured railroad workers. 35 Stat 65.14 As initially enacted,

FELA left venue to the general federal venue statute, which

“fixed the venue of suits in the United States courts, based

in whole or in part * * * in districts of which the defendant

was an inhabitant.” Baltimore & Ohio R. Co. v. Kepner, 314

US 44, 49, 62 S Ct 6, 86 L Ed 28 (1941). It quickly became

apparent, however, that it was an “injustice to an injured

employee” to permit the employee to bring an action only in

the district where the defendant railroad was an inhabitant.

13

At the end of its opinion, after the majority had concluded that the Ninth

Circuit erred in holding that California courts could exercise general jurisdiction

over Daimler, the majority noted that the “transnational context of this dispute

bears attention,” but that context merely confirmed the Court’s holding. 134 S

Ct at 762. It did not control it. Had it done so, the Court would have agreed with

Justice Sotomayor’s opinion concurring in the judgment.

14

As enacted in 1908, FELA focused on substantive issues, such as the stan-

dard of care and who can recover in the event of the employee’s death; it made

railroads liable for their negligence, eliminated the defenses of contributory neg-

ligence and assumption of risk, and replaced those defenses with comparative

fault. 35 Stat 65-66.

Cite as 361 Or 115 (2017) 127

Id. Accordingly, in 1910, Congress added what is now codi-

fied as section 56 of FELA. That section provided and still

provides:

“Under this chapter an action may be brought in a

[District Court of the United States], in the district of the

residence of the defendant, or in which the cause of action

arose, or in which the defendant shall be doing business at

the time of commencing such action. The jurisdiction of the

courts of the United States under this chapter shall be con-

current with that of the courts of the several States, and no

case arising under this Act and brought in any state court

of competent jurisdiction shall be removed to any court of

the United States.”

36 Stat 291; see 45 USC § 56.

Relying on Kepner and Miles v. Illinois Central R.

Co., 315 US 698, 62 S Ct 827, 86 L Ed 1129 (1942), plaintiff

argues that the Supreme Court “has consistently upheld

the jurisdiction of courts in FELA cases even though those

[cases were brought] in states different from the location

of an injury, or the headquarters or place of incorporation

of the defendant railroad.” In plaintiff’s view, the Court

has “consistently done so because of the ‘exceptional’

nature of interstate railroads,” a proposition that plaintiff

sees as bringing FELA cases within the class of “excep-

tional” cases that, under footnote 19 in Daimler, will give

rise to general jurisdiction in a forum other than a corpo-

rate defendant’s place of incorporation and primary place

of business.

The difficulty with plaintiff’s argument is that sec-

tion 56 of FELA addresses venue and subject matter jurisdic-

tion. It does not address personal jurisdiction. As explained

below, the FELA cases on which plaintiff relies apparently

assumed (no defendant raised the issue in those cases) that

personal jurisdiction over the railroads existed because the

railroads were “doing business” in the jurisdiction in which

they were sued. That basis for asserting personal jurisdic-

tion over out-of-state corporate defendants predated Kepner

and Miles, was not unique to railroads but applied to all out-

of-state corporate defendants, and did not survive Daimler.

With that preface, we turn to the terms of section 56.

128 Barrett v. Union Pacific Railroad Co.

Section 56 consists of two sentences. The first sen-

tence is a venue provision that defines the venues in which

FELA claims may be brought in federal district courts. See

Kepner, 314 US at 50-51 (describing that sentence as confer-

ring venue); Sen R 432 (1910), printed in 45 Cong Rec 4040,

4041 (stating that the first sentence in the 1910 amendment

pertains to “the venue of such an action”). That sentence pro-

vides that claims under FELA can be brought in the federal

district courts in three places: the district where the defen-

dant resides, the district where the cause of action arose, or

the district where the defendant was doing business when

the action was commenced. Kepner, 314 US at 50. As the

Court recognized in Kepner, the first sentence of section 56

does not confer personal jurisdiction over out-of-state cor-

porate defendants but instead provides for expanded venue

“ ‘if there is jurisdiction.’ ” Id. at 51 (quoting Hoffman v.

Foraker, 274 US 21, 23, 47 S Ct 485, 71 L Ed 905 (1927));

accord Missouri ex rel Southern Railway Co. v. Mayfield, 340

US 1, 3, 71 S Ct 1, 95 L Ed 3 (1950) (noting personal jurisdic-

tion as a prerequisite to the application of section 56).

Plaintiff fares no better under the second sentence

in section 56. That sentence confirms that state courts have

concurrent subject matter jurisdiction over federal FELA

claims. Second Employers’ Liability Cases, 223 US 1, 56,

32 S Ct 169, 56 L Ed 327 (1912). The Court explained in

Second Employers’ Liability Cases that, when Congress

enacted FELA in 1908, the general jurisdictional provision

giving state courts concurrent subject matter jurisdiction

over federal claims was sufficient, without more, to estab-

lish the state courts’ jurisdiction over those claims. Id. The

second sentence of section 56 was added to emphasize the

existence of concurrent subject matter jurisdiction but did

not itself confer it. Id. That sentence was intended to con-

firm the authority (and duty) of state courts to hear federal

FELA claims “when [the state court’s] ordinary jurisdiction

as prescribed by its local laws is appropriate to the occasion

and is invoked in conformity with those laws, to take cogni-

zance of an action to enforce a right of civil recovery.” Id. at

56-57; accord Testa v. Katt, 330 US 386, 394, 67 S Ct 810, 91

L Ed 967 (1947) (holding that state courts generally may not

refuse enforcement of federal claims if state courts would

Cite as 361 Or 115 (2017) 129

enforce the same type of state-law claims).15 Confirming

the state courts’ concurrent subject matter jurisdiction over

federal claims is not the same thing as conferring personal

jurisdiction over out-of-state corporate defendants.

Nothing in section 56 purports to confer personal

jurisdiction over out-of-state corporate defendants on state

or federal courts. It is true, as plaintiff argues, that in Kepner

the Court upheld the ability of an Ohio plaintiff injured in

that state to bring a FELA claim in a New York federal dis-

trict court when the basis for filing an action in that forum

was that the defendant railroad was doing business there.

314 US at 48. The only issue, however, raised in Kepner was

whether the broad venue provision in the first sentence of

section 56 precluded the railroad from asserting a forum

non conveniens defense. Id. at 51. The railroad did not argue

and the Court did not address whether a New York court

could assert personal jurisdiction over a nonresident corpo-

ration for injuries that occurred in another state. A similar

pattern occurred in Miles, on which plaintiff also relies.

Plainitff concludes from Kepner and Miles that sec-

tion 56 of FELA gave the courts in those cases personal

jurisdiction over the out-of-state corporate defendants. Not

only is that conclusion difficult to draw from the Court’s fail-

ure to address personal jurisdiction in those cases, but it

is also at odds with the history that preceded those cases.

Cf. New York Trust Co. v. Eisner, 256 US 345, 349, 41 S Ct

506, 65 L Ed 963 (1921) (noting that “a page of history is

worth a volume of logic”). As early as 1882, the Court held

that a state could assert personal jurisdiction over an out-of-

state corporate defendant if the corporation was “doing busi-

ness” in the state through its agent and the state served the

corporate defendant’s agent. St. Clair v. Cox, 106 US 350,

355-56, 1 S Ct 354, 27 L Ed 222 (1882). The Court reached

15

In explaining the 1910 amendment, Senator Borah stated that, in his

view, the sentence was not necessary because the general jurisdictional provision

applied. 45 Cong Rec 4034-35 (remarks of Sen Borah). He noted, however, that

the Supreme Court of Connecticut “ha[d] refused to take jurisdiction of this class

of [FELA] cases, holding that it was the evident intent of Congress to confine this

class of cases to the jurisdiction of the federal court.” Id. at 4035. The second sen-

tence was added to make clear that state courts have concurrent subject matter

jurisdiction to hear FELA cases. Id.

130 Barrett v. Union Pacific Railroad Co.

a similar conclusion in International Harvester v. Kentucky,

234 US 579, 34 S Ct 944, 58 L Ed 1479 (1914), even though

the corporate defendant in that case had structured its busi-

ness practices to avoid complying with a state law requiring

that an agent be appointed for service of process.16

In Davis v. Farmers Co-Operative Co., 262 US

312, 316, 43 S Ct 556, 67 L Ed 996 (1923), the Court cited

International Harvester for the proposition that the forum

state had personal jurisdiction over the defendant railroad

because it was doing business there.17 In light of Davis,

International Harvester, and St. Clair, it should come as no

surprise that the defendant railroads in Kepner and Miles

did not question whether the forum had personal jurisdic-

tion over them. In both cases, those railroads were doing

business in the states in which the FELA actions were

brought. Rather, the only question that the defendant rail-

roads raised was whether venue could be transferred to a

more convenient forum.18

16

There are two related but separate types of “doing business” cases. One

arose as a result of state statutes that required out-of-state corporations doing

business within a state to appoint a registered agent for the service of process.

St. Clair, 106 US at 355-56. Although the Court initially stated that personal

jurisdiction was limited to the corporation’s in-state activities, it later recognized

that such statutes could provide for general jurisdiction. See Pennsylvania Fire

Ins. Co. v. Gold Issue Mining Co., 243 US 93, 95-96, 37 S Ct 344, 61 L Ed 610

(1917). The other class of cases arose in the absence of such statutes and rec-

ognized that a forum state could assert personal jurisdiction over corporations

doing business within the state as long as a corporate agent was served with

process in the state. See International Harvester, 234 US at 585-86 (discussing

amount of business activity within a state necessary under the Due Process

Clause to justify personal jurisdiction). In this case, plaintiff relies on the latter

line of cases, not the former.

17

Because the courts in which railroads were “doing business” had personal

jurisdiction over them, the issue in FELA cases shifted from personal jurisdic-

tion under the Due Process Clause to whether asserting a FELA claim in an

unrelated jurisdiction placed an undue burden on interstate commerce in viola-

tion of the Commerce Clause. See Davis, 262 US at 317. Davis held that it did. Id.

After a series of cases that initially followed but later limited Davis, the Court

finally confined Davis to its “particular facts” in Kepner. See Kepner, 314 US at 51

n 11.

18

Plaintiff also relies on a statement that Senator Borah made in introduc-

ing the 1910 amendment. After explaining that the first sentence of the amend-

ment “has reference to the venue” of a FELA action, he added that the amendment

“enables the plaintiff to find the corporation at any point or place or State where

it is actually carrying on business, and there lodge his action, if he chooses to do

so.” 45 Cong Rec 4034 (1910). Plaintiff’s reliance on that statement is misplaced

for three reasons. First, Senator Borah specifically focused on venue, not personal

Cite as 361 Or 115 (2017) 131

The most that plaintiff can extract from Kepner and

Miles is that the parties in those cases implicitly assumed

that the forum states had jurisdiction because the rail-

roads were “doing business” there. And the parties’ implicit

assumptions will advance plaintiff’s jurisdictional argu-

ments only if “doing business” in a forum is enough, with-

out more, to assert general jurisdiction over an out-of-state

corporate defendant. As Daimler makes clear, however, it

is not. As explained above, the Court held in Daimler that

the fact that an out-of-state corporation “engages in a sub-

stantial, continuous, and systematic course of business” in a

state is not sufficient, in and of itself, to give that state gen-

eral jurisdiction over the corporation. Daimler also rejected

the proposition that “at home,” as it used that phrase, is

“synonymous with ‘doing business’ tests framed before spe-

cific jurisdiction evolved in the United States.” 134 S Ct at

762 n 20. And the Daimler Court observed that, although

Perkins had relied on two cases upholding “the exercise of

general jurisdiction based on the presence of a local office,

which signaled that the corporation was ‘doing business’ in

the forum,” those “doing business” cases “should not attract

heavy reliance today.” Id. at 761 n 18.

As we read Daimler, it concluded that the recogni-

tion of specific jurisdiction in International Shoe foreclosed

reliance on older cases finding general jurisdiction based

solely on “doing business” within a forum.19 We cannot follow

jurisdiction. Second, the “doing business” cases provided for personal jurisdiction

“where [the railroad was] actually carrying on business.” Id. Put differently, per-

sonal jurisdiction where the railroad was actually carrying on business was a prem-

ise not a consequence of the amendment. Third, even if Congress intended to confer

personal jurisdiction on state courts where it would not otherwise exist, plaintiff

never explains how Congress can do so in violation of the Due Process Clause.

19

As noted, plaintiff does not argue that Oregon courts can assert personal

jurisdiction over Union Pacific based on Oregon’s statute requiring out-of-state

corporations doing business within this state to appoint agents for service of pro-

cess. See ORS 60.731. We accordingly do not decide in this case whether Oregon’s

statute purports to confer personal jurisdiction over out-of-state defendants;

whether, if it does, it purports to confer jurisdiction only over claims that arise

out of a corporation’s activities within this state; or whether, if it purports to

confer general jurisdiction, Oregon could do so consistently with the federal con-

stitution. It is sufficient in this case to hold that the quantum of business activ-

ity necessary to constitute “doing business” under cases such as International

Harvester is no longer sufficient, in and of itself, to confer general jurisdiction

under Daimler.

132 Barrett v. Union Pacific Railroad Co.

the Court’s decision in Daimler and give continued effect to

the “doing business” cases that plaintiff implicitly urges us

to follow, nor can we find in the terms of FELA, the cases

interpreting it, or the history that preceded it a basis for

saying that cases brought against railroads under that stat-

ute constitute an “exceptional” case that, like Perkins, will

permit a court to exercise general jurisdiction over a corpo-

rate defendant in a forum other than its state of incorpo-

ration or principal place of business. We accordingly reach

a different conclusion from the Montana Supreme Court,

which relied on earlier “doing business” cases in upholding

general jurisdiction over a railroad. See Tyrrell v. BNSF

Railway Co., 373 P3d 1 (Mont 2016), cert granted, ___ US

___ (2017). We agree instead with the majority of courts

that have held that the fact that a corporation is doing busi-

ness within a state is not sufficient in and of itself to give

that state general jurisdiction over the corporation. See, e.g.,

Brown v. Lockheed Martin Corp., 814 F3d 619 (2d Cir 2016);

Kipp v. Ski Enterprise Corp., 783 F3d 695, 698-99 (7th Cir

2015); Martinez v. Aero Caribbean, 764 F3d 1062, 1070 (9th

Cir 2014).

III.  SPECIFIC JURISDICTION

Plaintiff argues that we can affirm the trial court’s

ruling on an alternative ground—that the relationship

among Union Pacific, the forum, and this litigation are suf-

ficient to give Oregon specific jurisdiction over Union Pacific.

See Outdoor Media Dimensions Inc. v. State of Oregon, 331

Or 634, 659-60, 20 P3d 180 (2001) (explaining when an

appellate court can affirm the lower court’s ruling under

the “right for the wrong reason” doctrine).20 Plaintiff did not

raise this issue below, and, as he notes, “the factual record

20

In Outdoor Media Dimensions, the court explained that an appellate court

can affirm a lower court’s ruling on a different ground when “certain conditions

are met.” Among other things,

“if the question presented is not purely one of law, then the evidentiary record

must be sufficient to support the proffered alternative basis for affirmance.

That requires: (1) that the facts of record be sufficient to support the alter-

native basis for affirmance; (2) that the trial court’s ruling be consistent

with the view of the evidence under the alternative basis for affirmance; and

(3) that the record materially be the same one that would have been developed

had the prevailing party raised the alternative basis for affirmance below.”

331 Or at 659-60.

Cite as 361 Or 115 (2017) 133

in regard to specific jurisdiction is not fully developed.” We

agree. The only Oregon-specific fact before the trial court on

Union Pacific’s motion to dismiss was plaintiff’s residence.

The complaint alleged that, at all material times, plain-

tiff “was a resident of the City of Albany, State of Oregon.”

Plaintiff does not identify any other evidence in the record

that would provide a basis for finding specific jurisdiction

over his claim against Union Pacific, nor are we aware of

any. Without more, we cannot say that the trial court had

specific jurisdiction over Union Pacific.21 See Robinson v.

Harley-Davidson Motor Co., 354 Or 572, 574, 316 P3d 287

(2013) (holding that Oregon courts could not exercise spe-

cific jurisdiction over a claim brought by an Oregon resident

for injuries sustained elsewhere because “this litigation did

not arise out of or relate to [the] defendant’s activities in

Oregon”).

Peremptory writ to issue.

WALTERS, J., dissenting.

Oregon should have authority to adjudicate a FELA

claim brought by one of its residents against a railroad that

has laid tracks and conducted its unique interstate railway

business here for over one hundred years. For the reasons

that follow, I would hold that this is one of the “exceptional”

cases to which the court referred in Daimler AG v. Bauman,

571 US __, 134 S Ct 746, 187 L Ed 2d 624 (2014), and that

defendant is “at home” in Oregon and is subject to its gen-

eral jurisdiction.

In Daimler, the United States Supreme Court

explained that a corporation will be “at home” in two par-

adigmatic places: the corporation’s place of incorporation

and its principal place of business. Barrett v. Union Pacific

Railroad Co., 361 Or 115, 122, __ P3d __ (2017); Daimler,

134 S Ct at 760. However, the Court did not “foreclose the

possibility that[,] in an exceptional case,” a corporation’s

operations in another forum could be “so substantial and of

such a nature as to render the corporation at home in that

21

We express no opinion on whether plaintiff’s failure to develop the issue of

specific jurisdiction in the trial court forecloses him from doing so when this case

goes back to the trial court. The parties have not briefed that procedural issue in

this court, and we leave that issue initially to the trial court.

134 Barrett v. Union Pacific Railroad Co.

State.” Daimler, 134 S Ct at 761 n 19 (emphasis added). This

is one of those exceptional cases.

To understand why, it is important to understand

the historical bases for state court jurisdiction over rail-

roads and the Court’s reasons for circumscribing general

jurisdiction in Daimler.

Before 1977, corporations, including railroads, were

subject to in rem jurisdiction, meaning that they could be

sued in states in which they owned real property, to the

extent of that property. Under that form of jurisdiction, a

corporation could be sued in a forum state in which a defen-

dant owned property for wrongful acts that occurred outside

the forum state. Thus, in Pennoyer v. Neff, 95 US 714, 723-

24, 24 L Ed 565 (1877), the Supreme Court explained why

the defendant’s ownership of property in Oregon provided a

sufficient basis for Oregon to exercise judicial power over the

defendant:

“So the State, through its tribunals, may subject property

situated within its limits owned by non-residents to the

payment of the demand of its own citizens against them;

and the exercise of this jurisdiction in no respect infringes

upon the sovereignty of the State where the owners are

domiciled. Every State owes protection to its own citizens;

and, when non-residents deal with them, it is a legitimate

and just exercise of authority to hold and appropriate any

property owned by such non-residents to satisfy the claims

of its citizens. It is in virtue of the State’s jurisdiction over

the property of the non-resident situated within its limits

that its tribunals can inquire into that non-resident’s obli-

gations to its own citizens, and the inquiry can then be car-

ried only to the extent necessary to control the disposition

of the property. If the non-resident[s] have no property in

the State, there is nothing upon which the tribunals can

adjudicate.”

At the time of Pennoyer, it was the forum state’s relation-

ship to the defendant and the defendant’s property, and not

the nature of the plaintiff’s claims, that determined juris-

diction. Thus, what later was referred to as “general juris-

diction” was the basis on which all jurisdiction was justified.

Mary Twitchell, The Myth of General Jurisdiction, 101 Harv

L Rev 610, 614-15 (1988).

Cite as 361 Or 115 (2017) 135

That understanding of jurisdiction was the prevail-

ing understanding when Congress enacted FELA in 1908

to provide a federal cause of action for injured workers. 361

Or at 126 (discussing legislative history of FELA). In 1910,

Congress amended FELA to add what is now codified as sec-

tion 56, which provides, in part:

“Under this chapter an action may be brought in a district

court of the United States, in the district of the residence

of the defendant, or in which the cause of action arose, or

in which the defendant shall be doing business at the time

of commencing such action. The jurisdiction of the courts of

the United States under this chapter shall be concurrent

with that of the courts of the several States.”

45 USC § 56 (1908).

Senator William Borah of Idaho, who delivered

Senate Report Number 432, H.R. 17263, 61st Congress,

Second Session, 45th Congressional Record 4034 (1910),

explained the intent of that amendment as “enabl[ing] the

[p]laintiff to find a corporation at any point or place or state

where it is actually carrying on business and there lodge

his action if he chooses to do so.” Senator Borah stated

that, in his view, the second sentence of that provision was

not necessary because the general jurisdictional provi-

sions applied. 45 Cong Rec 4034-35. From the text of that

provision and Senator Borah’s statement, it appears that

Congress intended to grant FELA plaintiffs the right to sue

for injury in any state in which a railroad does business

and to grant state courts personal jurisdiction over such

railroads.

The majority understands the intent of Congress

more narrowly. It reads FELA as giving state courts concur-

rent subject matter jurisdiction to hear FELA claims and as

specifying the venues in which such claims may be heard. I

am not sure that that is correct. As explained, at the time

that FELA was enacted, state courts had unquestioned

jurisdiction to adjudicate state law personal injury claims

and to impose liability against railroads that owned and

operated facilities within their states. In enacting FELA,

Congress may well have intended to grant state courts the

same jurisdictional reach when adjudicating FELA claims.

136 Barrett v. Union Pacific Railroad Co.

But, even if the majority is correct and FELA does not grant

personal jurisdiction, it at least assumes it. Venue cannot lie

where jurisdiction does not exist, and FELA reflects a con-

gressional assumption that state courts will have personal

jurisdiction over railroads that own and operate facilities in

their states.

Two United States Supreme Court cases that the

majority discusses also reflect that assumption. In Miles v.

Illinois Central R. Co., 315 US 698, 62 S Ct 827, 86 L Ed

1129 (1942), and Baltimore & Ohio R. Co. v. Kepner, 314 US

44, 49, 62 S Ct 6, 86 L Ed 28 (1941), the plaintiffs did not

bring actions in the states where they resided and where

the railroads that injured them owned tracks. Instead, the

plaintiffs brought actions in other, distant states, and the

defendant railroads argued that requiring them to defend

there placed a burden on interstate commerce and resulted

in inequity, vexatiousness, and harassment. Miles, 315 US

at 700; Kepner, 314 US at 47. In both cases, the Court held

against the carriers and refused to enjoin the distant actions

to proceed. Miles, 315 US at 705; Kepner, 314 US at 54. In

doing so, the Court assumed, rather than decided, that the

distant courts had jurisdiction over the railroads because

the railroads were doing business there. But an even more

basic assumption, shared by all the parties, was that the one

undisputed place that the plaintiffs surely could bring their

claims was in the states in which they resided and in which

the railroads owned tracks. See Morris v. Missouri Pac. R.

Co., 107 Neb 788, 187 NW 130 (1922) (plaintiff resident of

forum state brought claim against defendant railroad in

state where railroad owned tracks but that was not its place

of incorporation or principal place of business); Hoogbruin v.

Atchison, T. & S. F. Ry. Co., 213 Cal 582, 2 P2d 992 (1931)

(same).

It was not until 1977, when the Court decided

Shaffer v. Heitner, 433 US 186, 97 S Ct 2569, 53 L Ed 2d 683

(1977), that principles of Due Process limited the exercise

of in rem jurisdiction based on a defendant’s ownership of

property within a state. In Shaffer, the Court held that the

Due Process Clause precludes the exercise of state author-

ity in the absence of the minimum contacts required by

Cite as 361 Or 115 (2017) 137

International Shoe Co. v. Washington, 326 US 310, 66 S Ct

154, 90 L Ed 95 (1945). Shaffer, 433 US at 207.1

In 2011, the Court placed additional limits on a

state’s exercise of general jurisdiction when it held that state

authority does not extend to actions against foreign corpo-

rations unless their affiliations with a forum state are “so

continuous and systematic as to render them essentially at

home in the forum state.” Goodyear Dunlop Tire Operations,

S.A. v. Brown, 564 US 915, 131 S Ct 2846, 2853, 180 L Ed

2d 796 (2011). And, in 2014, in Daimler, the Court concluded

that the defendant’s affiliations with California did not

meet that test: California did not have general jurisdiction

in a case arising from the torture and killing of workers

in Argentina brought against a German corporation whose

only connection with California was that its wholly-owned

foreign subsidiary regularly sold cars there. 134 S Ct at 751.

Thus, from 1877, when Pennoyer was decided, until

at least 2014, when Daimler was decided, state courts had

undisputed jurisdiction to protect their residents from inju-

ries inflicted by railroads that owned tracks and conducted

substantial business within their borders. The facts in

Daimler do not compel a different result here; the question

is whether the Court’s reasoning necessarily does so.

In Daimler, the Court gave four reasons for hold-

ing that California did not have jurisdiction over the defen-

dant corporation. First, the Court reviewed its decision in

Goodyear and affirmed that it had “declined to stretch gen-

eral jurisdiction beyond limits traditionally recognized.” Id.

at 757-58. Second, the Court described the paradigm fora

for the exercise of general jurisdiction over a corporation

as the corporation’s place of incorporation and principal

place of business. Id. at 760. The Court observed that those

places have the twin virtues of being unique and easily

ascertainable. Id. Third, the Court rejected as “unaccept-

ably grasping” the plaintiffs’ suggestion that a corporation

is at home in every state in which it “engages in substantial,

1

Applying those principles in Shaffer, the Court concluded that jurisdiction

could not be premised on the defendants’ stock ownership in the forum state;

defendants’ stock ownership did not constitute sufficient minimum contacts. 433

US at 216.

138 Barrett v. Union Pacific Railroad Co.

continuous, and systematic course of business.” Id. at 761.

The Court explained that “[i]f Daimler’s California activi-

ties sufficed to allow adjudication of this Argentina-rooted

case in California, the same global reach would presumably

be available in every other State in which [it’s subsidiary’s]

sales are sizeable.” Id. That, the Court reasoned, 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 762 (quoting Burger King Corp. v. Rudzewicz, 471 US

462, 472, 105 S Ct 2174, 85 L Ed 2d 528 (1985)). Fourth, the

Court noted that a more expansive view of general jurisdic-

tion would pose risks to international comity; other nations

do not share the “uninhibited approach to personal jurisdic-

tion” that the plaintiffs’ view represented. Id. at 763.

None of those reasons raise concerns about Oregon’s

assertion of authority here. First, permitting Oregon to

exercise authority to decide this case does not “stretch gen-

eral jurisdiction beyond limits traditionally recognized.”

Id. at 757-58. Rather, it gives effect to state jurisdictional

reach that has long been assumed and exercised. It is true

that, in Daimler, the Court cautioned that its decisions from

the era of “Pennoyer’s territorial thinking,” basing jurisdic-

tion only on the presence of local offices in the forum state,

“should not attract heavy reliance today.” Id. at 761 n 18.

However, although the Court cautioned against heavy reli-

ance on those cases, it did not jettison them entirely. I cite

Pennoyer and its description of the reasons for recognizing

state authority not as determinative, but as demonstrative:

It would be far more novel to preclude Oregon from exercis-

ing jurisdiction in this case than it would be to permit it.

Second, recognizing general jurisdiction in states in

which interstate railroads lay tracks may be fairer to those

railroads and more easily ascertainable than recognizing

general jurisdiction in states in which railroads are incor-

porated or have their principal place of business would be.

Here, for example, defendant is far more “at home” in the

23 states in which it owns tracks and conducts business than

it is in Delaware, the state in which it is incorporated, but in

which it does not own tracks or conduct any business. And

it may be easier to ascertain the states in which a railroad

Cite as 361 Or 115 (2017) 139

lays tracks than to ascertain the one state that constitutes

its “principal place of business.” Here, for example, defen-

dant takes the position that its principal place of business

is in Nebraska, but it owns more tracks and employs more

people in Texas. In Daimler, the Supreme Court cited Hertz

Corp. v. Friend, 559 US 77, 92-93, 130 S Ct 1181, 175 L Ed

2d 1029 (2010), as providing a predictable rule for determin-

ing the “principal place of business” of a defendant. Daimler,

134 S Ct at 760. But that rule, used for determining diver-

sity, requires consideration of “where a corporation’s officers

direct, control, and coordinate the corporation’s activities.”

Hertz Corp., 559 US at 92-93. For an interstate railroad,

that factual inquiry could prove more complex than a deter-

mination of the states in which the railroad has laid down

tracks.

Third, permitting Oregon to exercise its sovereign

authority here would not require application of the test that

the Court rejected in Daimler as “unacceptably grasping,”

134 S Ct at 761, nor would it offend “traditional notions of

fair play and substantial justice,” International Shoe, 326

US at 316 (internal quotation marks omitted) (explaining

application of Due Process Clause). I do not advocate for

jurisdiction in Oregon because, as the plaintiffs argued

in Daimler, defendant railroad “engages in substantial,

continuous, and systematic course of business” here. 134

S Ct at 761. Although it is true that, in Oregon, defen-

dant railroad employs 1,619 employees with an annual

payroll of $244.6 million; recently generated in excess of

$645 million in annual revenue; made capital expenditures

in excess of $81 million; and made purchases in excess of

$116 million, it is not the size of defendant’s Oregon oper-

ations on which I rely. I rely, instead, on Oregon’s right to

protect one of its residents from harm done by a corpora-

tion with a permanent, physical presence here, that is, by

its nature, unique.

Traversing this state with permanent tracks, defen-

dant railroad is “at home” here in ways that other businesses

are not. Defendant railroad owns and operates almost 1,100

miles of track in Oregon. It operates switching yards and

locomotive facilities in Portland; operates a classification

yard in Hinkle; and considers La Grande an important

140 Barrett v. Union Pacific Railroad Co.

operation and crew change point. By its very nature, a rail-

road requires such an extensive, physical presence.

What is more, an interstate railroad requires an

extensive, physical presence in more than one state. The

purpose of such a railroad is not to do business in one state or

primarily in one state; its purpose is to connect the business

interests in a number of states, and it is physically struc-

tured to do so. When an interstate railroad lays its tracks

in and between states, it moves into each of those states in

an obvious, physical way, and is as much “at home” in each

one of those states as it is in any other. That does not mean,

however, that interstate railroads are not able “ ‘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 762 (quoting Burger King Corp., 471 US at 472).

Interstate railroads move into states with careful delibera-

tion and with a great deal of governmental oversight.

Congress regulates interstate railroads at the fed-

eral level and preempts state regulation of the construction,

operation, and abandonment of rail lines. See 49 USCA

§ 10101-11908 (1995); Emerson v. Kansas City Southern Ry.

Co., 503 F3d 1126 (2007). And when railroad workers are

injured, Congress provides them with a federal cause of

action that is uniformly applied throughout the nation. 45

USC § 56 (1908); see Dice v. Akron, C. & Y. R. Co., 342 US

359, 361, 72 S Ct 312, 96 L Ed 398 (1952) (“[O]nly if fed-

eral law controls can the federal Act be given that uniform

application throughout the country essential to effectuate

its purposes.”). There is nothing “unacceptably grasping” or

unfair about requiring that interstate railroads that have

notice that they are subject to suit in all states in which they

do business answer FELA claims in those states.

Finally, giving effect to congressional intent and

Oregon sovereignty in this exceptional circumstance would

raise no international comity concerns. It would be rare for a

multinational corporation to own tracks or operate railroads

in the United States or in Oregon, and if it did, it would do so

with notice of FELA’s jurisdictional reach. Allowing Oregon

to assert personal jurisdiction here would not permit all

states in the union to assert jurisdiction over this railroad

Cite as 361 Or 115 (2017) 141

or extend Oregon’s jurisdiction in all instances in which a

foreign business operates or has a physical presence here.

Rather, allowing Oregon to proceed in this case would stand

only for the proposition that the business of this railroad is

“so substantial and of such a nature as to render [it] at home

in [this] State.” Daimler, 134 S Ct at 761 n 19.

The general jurisdictional opening that the Court

preserved in Daimler may be slim, but the principles of dual

sovereignty at play here should permit these plaintiffs to

step through. Congress has an interest in protecting inter-

state railroad employees from harm and in permitting them

to bring federal FELA claims in all states in which such a

railroad does business. Oregon has an interest in protect-

ing its residents from harm inflicted by railroads that own

tracks traversing its lands. This is one of the “exceptional”

circumstances in which defendant is essentially “at home” in

Oregon, even though it is not incorporated and does not have

its principal place of business here. To deny Oregon the right

to exercise its sovereign authority here would be to deny its

traditional exercise of its sovereign powers. I respectfully

dissent.

Brewer, J., joins in this dissenting opinion.