Tyler v. Lane

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LISA F. TYLER, individually and as )

personal representative of the estate of )

Donald P. Tyler, deceased, )

)

Plaintiff, )

)

v. ) CASE NO. 2:20-CV-584-WKW

) [WO]

FORD MOTOR COMPANY and )

BOBBY FRANK LANE, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the court is Ford Motor Company’s Motion to Dismiss for Lack of

Personal Jurisdiction. (Doc. # 12.) The question is whether Ford’s actions in

Alabama are sufficient to subject Ford to the personal jurisdiction of this court. For

the reasons stated below, they are not. Ford’s motion to dismiss is therefore due to

be granted.

I. BACKGROUND

On November 1, 2019, decedent Donald Tyler was driving a 2001 Ford F-250

while towing a trailer. Plaintiff Lisa Tyler was a passenger in the vehicle. While

driving on I-65 North in Chilton County, Alabama, Defendant Bobby Frank Lane

side-swiped the rear of the F-250, causing Mr. Tyler to lose control and crash into

the median cable barrier. (Doc. # 1 at 2.) Plaintiff alleges that both occupants were

properly wearing their seatbelts when the F-250 rolled over, landing on the roof of

the vehicle. The roof deformed, and the left side pillars collapsed due to the

allegedly defective nature of the vehicle. (Doc. # 1 at 2–3.) Decedent Donald Tyler

died in the crash, and Plaintiff Lisa Tyler suffered extensive injuries. (Doc. # 1 at

3.) Plaintiff Lisa Tyler brought suit against Ford Motor Company and Bobby Frank

Lane on behalf of herself and the estate of decedent Donald Tyler.

Defendant Ford is a Delaware corporation with its principal place of business

in Michigan. (Doc. # 1 at 2.) Ford has extensive contacts with the State of Alabama.

Through national and Alabama-specific advertisements, it regularly reaches out and

encourages Alabama citizens to become Ford owners. Ford partners with hometown

staples such as The University of Alabama and Auburn University to target and

service the Alabama market. It regularly ships vehicles and replacement parts to

Alabama. (Doc. # 20 at 10–13; Doc. # 21-2; Doc. # 21-3; Doc. # 21-5.)

Plaintiff and decedent, however, were not Alabama residents. Plaintiff is—

and decedent was—a resident of the state of Florida. (Doc. # 1 at 1; Doc. # 20 at 2.)

The vehicle at issue was designed by Ford in Michigan, manufactured in Mexico,

and sold to an independent dealership in Tennessee. Plaintiff and decedent

purchased their Ford vehicle in Panama City, Florida. The vehicle has never been

registered in any state other than Tennessee and Florida. (Doc. # 21-4.) It appears

that the F-250 was only present in the state of Alabama because Plaintiff and

decedent chose to drive into Alabama that day.

II. JURISDICTION AND VENUE

Subject matter jurisdiction is proper under 28 U.S.C. § 1332, as Plaintiff is a

citizen of the state of Florida; the decedent was a citizen of the state of Florida;

Defendant Ford is a Delaware corporation with its principal place of business in

Michigan; Defendant Lane is a citizen of the state of Alabama; and the amount in

controversy exceeds seventy-five thousand dollars. The parties do not contest

venue. Personal jurisdiction is contested as explained herein.

III. STANDARD OF REVIEW

To survive a motion to dismiss pursuant to Rule 12(b)(2), “the plaintiff bears

the burden of establishing a prima facie case of jurisdiction over the movant, non-

resident defendant.” Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).

However, the court “must construe the allegations in the complaint as true, to the

extent they are uncontroverted by defendant’s affidavits or deposition testimony.”

Id. Additionally, “where the evidence presented by the parties’ affidavits and

deposition testimony conflicts, the court must construe all reasonable inferences in

favor of the non-movant plaintiff.” Id.

The court may exercise personal jurisdiction over Ford only to the extent

authorized by rule or statute, and only so long as that rule or statute is consistent with

established due process principles. The constitutional question involves a two-part

inquiry. First, the defendant must have sufficient “minimum contacts” with the

forum state. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Second, the

exercise of jurisdiction must comport with “traditional notions of fair play and

substantial justice.” Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This

second part of the inquiry looks at such factors as “the burden on the defendant”;

“the forum State’s interest in adjudicating the dispute”; “the plaintiff’s interest in

obtaining convenient and effective relief”; “the interstate judicial system’s interest

in obtaining the most efficient resolution of controversies; and the shared interest of

the several States in furthering fundamental substantive social policies.” World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980).

The constitutional limits on personal jurisdiction “protect[] the defendant

against the burdens of litigating in a distant or inconvenient forum” and “act[] to

ensure that the States through their courts, do not reach out beyond the limits

imposed on them by their status as coequal sovereigns in a federal system.” Id.

There are two ways to satisfy this personal jurisdiction test—both requiring

different “minimum contacts” and both being at issue in this case. The first is called

“general” personal jurisdiction, and the second is called “specific” personal

jurisdiction. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,

919 (2011); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.15 (1985).

General personal jurisdiction, also called “all-purpose” jurisdiction, requires

contacts that “are so ‘continuous and systematic’ as to render [the Defendant]

essentially at home in the forum State.” Goodyear, 564 U.S. at 919 (quoting Int’l

Shoe, 326 U.S. at 317). If a defendant is subject to the general jurisdiction of a state,

then personal jurisdiction will be satisfied for any suit brought against it in that state,

no matter where any suit-related events occurred. Absent exceptional

circumstances, corporations will be “at home” only in their state of incorporation

and the state of their principal place of business. Daimler AG v. Bauman, 571 U.S.

117, 139 (2014); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408 (1984); Perkins v. Benguet Consol. Min. Co., 342 U.S. 437 (1952). The

state of incorporation and the principal place of business are “unique” and “easily

ascertainable,” and opening those fora “afford[s] plaintiffs recourse to at least one

clear and certain forum in which a corporate defendant may be sued on any and all

claims.” Daimler, 571 U.S. at 137. A corporation is not subject to general

jurisdiction anywhere where it “engages in a substantial, continuous, and systematic

course of business,” id. at 138, as conducting business in a state is one thing but

making the state the “home” of the corporation is quite another. See id. at 139 n.19.

Specific personal jurisdiction is different. Although it extends beyond the

home jurisdictions of the defendant, it does not work for all claims brought against

the defendant. First, the contacts with the forum state must rise to the level of

“purposeful availment”: “[I]t is essential in each case that there be some act by

which the defendant purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and protections of its

laws.” Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235,

253 (1958)). The contacts, to be purposeful, must be intentional and not “random,

isolated, or fortuitous.” Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984).

Second, if the defendant has deliberately made contact with the forum state, “‘the

suit’ must ‘arise out of or relate to the defendant’s contacts with the forum.’” Bristol-

Myers Squibb Co. v. Superior Ct. of Calif., San Francisco Cnty., 137 S. Ct. 1773,

1780 (2017) (alterations adopted) (emphasis omitted) (quoting Daimler, 571 U.S. at

118).

In other words, there must be “an affiliation between the forum and the

underlying controversy, principally, an activity or an occurrence that

takes place in the forum State and is therefore subject to the State’s

regulation.” For this reason, “specific jurisdiction is confined to

adjudication of issues deriving from, or connected with, the very

controversy that establishes jurisdiction.”

Id. (alteration adopted) (citation omitted) (quoting Goodyear, 564 U.S. at 919).

The Supreme Court had occasion to consider its specific jurisdiction test

earlier this year in Ford Motor Company v. Montana Eighth Judicial District Court,

141 S. Ct. 1017 (2021). Reaffirming longstanding doctrine, the Court said: “When

(but only when) a company ‘exercises the privilege of conducting activities within a

state’—thus ‘enjoying the benefits and protection of its laws’—the State may hold

the company to account for related misconduct.” Id. at 1025 (alterations adopted)

(emphasis added) (quoting Int’l Shoe, 326 U.S. at 319). Ford argued before the

Supreme Court, as it previously did here,1 that specific jurisdiction could only attach

where there is a strict causal relationship between Ford’s actions and the injury. Id.

at 1026. Essentially, Ford argued that specific jurisdiction was limited to the state

where Ford sold the complained-of vehicle, or the states where Ford designed and

manufactured the vehicle. Id.

The Supreme Court rejected this interpretation. Relying heavily on Daimler’s

“arise out of or relate to” test, the court said that Ford’s activities in the forum state

had a significant relationship with the accident, even though they did not necessarily

have a causal one. The Court held that Ford’s extensive marketing and servicing

operations in the forum states generated a sufficient relationship to the suit:

[T]he owners of these cars might never have bought them, and so these

suits might never have arisen, except for Ford’s contacts with their

home States. Those contacts might turn any resident of [the forum

state] into a Ford owner—even when he buys his car from out of state.

He may make that purchase because he saw ads for the car in local

media. And he may take into account a raft of Ford’s in-state activities

designed to make driving a Ford convenient there: that Ford dealers

stand ready to service the car; that other auto shops have ample supplies

of Ford parts; and that Ford fosters an active resale market for its old

models.

1 Before the Supreme Court’s decision in Ford Motor, the Eleventh Circuit required that

the defendant’s contacts with the forum state be a but-for cause of the injury in order to establish

specific personal jurisdiction. See Waite v. All Acquisition Corp., 901 F.3d 1307, 1315 (11th Cir.

2018).

Id. at 1029. Although the Court declined to find that a causal link had been

established, it held that the possibility of causation underscored the depth of the

relationship between Ford’s contacts with the forum state and the ownership of the

vehicle. In distinguishing Bristol-Myers, the Court noted: “The plaintiffs are

residents of the forum States. They used the allegedly defective products in the

forum States. And they suffered injuries when those products malfunctioned in the

forum States.” Id. The Court’s conclusion was that personal jurisdiction exists

where “resident-plaintiffs allege that they suffered in-state injury because of

defective products that Ford extensively promoted, sold, and serviced in [the forum

state].” Id. at 1032.

IV. DISCUSSION

A. Specific Personal Jurisdiction

The first question is whether a statute or rule authorizes the exercise of

specific jurisdiction. Statutes or rules that authorize the exercise of personal

jurisdiction outside of the territorial limits of a court are called long-arm statutes.

Under Rule 4(k) of the Federal Rules of Civil Procedure, this court is authorized to

exercise the same personal jurisdiction that can be exercised by the courts of the

State of Alabama. See Fed. R. Civ. P. 4(k)(1)(A). Alabama law, in turn, extends

service on foreign persons or entities to the limits of the Constitution. See Ala. R.

Civ. P. 4.2(b). The statutory question thus merges with the constitutional question.

See Morris, 843 F.2d at 492 n.3.

The constitutional question is not so straightforward. Plaintiff says that this

motion can be disposed of as the case is directly analogous to the Supreme Court’s

recent decision against Ford. Ford argues that the Supreme Court’s repeated

mention of the residency of the plaintiffs must imply that a plaintiff’s residency is

relevant to determining the relatedness of the defendant’s contacts to the suit.

There is no question that Ford has purposefully availed itself of the privilege

of conducting business in Alabama. Ford purposefully reaches out to Alabama in a

number of different ways—supplying vehicles to dealerships in Alabama,

advertising in Alabama, maintaining a resale market in Alabama, shipping

replacement parts to Alabama, and so on. Ford admits that its contacts with Alabama

are at least as extensive as its contacts with the forum states in Ford Motor. (Doc. #

26 at 5.) The only question is whether the crash in this case arises out of or relates

to Ford’s contacts with Alabama.

It appears that this case is within the prophesied ambiguity of the Supreme

Court’s new ruling. See Ford Motor, 141 S. Ct. at 1034 (Alito, J., concurring) (“But

without any indication what those limits might be, I doubt that the lower courts will

find that observation [that the phrase ‘relate to’ ‘incorporates real limits’] terribly

helpful.”); see also id. at 1035 (Gorsuch, J., concurring) (“The majority promises

that its new test ‘does not mean anything goes,’ but that hardly tells us what does.”).

On the one hand, “arise out of or relate to” is broad wording. Ford’s contacts with

Alabama are “related to” the claim at hand in the sense that it advertises, sells, and

repairs the same kind of vehicle—the Ford F-250—in Alabama. But that is where

the comparison ends. Once the vehicle in this suit separated from its Alabama-bound

counterparts, it lost all relationship with Ford’s contacts to Alabama. There is no

indication that Ford’s contacts with Alabama have anything to do with the Tylers’

ownership of a Ford or Lane’s conduct that led to the crash. Other than marketing

and selling the same vehicle to Alabama customers, Ford’s activities in Alabama

have nothing to do with this case. Despite having no literal relationship with the

events of this case, do Ford’s activities have a strong enough analogical relationship

to meet Daimler’s requirements? They do not.

Lower court rulings following Ford Motor have done little to shed light on

this problem. It is clear that mere purposeful availment remains insufficient to

impart personal jurisdiction if the contacts are not related to the controversy at suit.

See Hepp v. Facebook, 14 F.4th 204, 207 (3d Cir. 2021); Johnson v. UBS AG, 860

F. App’x 531, 533 (9th Cir. 2021). Where the events giving rise to the claim

occurred outside the forum state and the plaintiffs also live outside the forum state,

it is clear that mere analogy to in-state contacts is not enough. See Canaday v.

Anthem Cos., 9 F.4th 392, 400 (6th Cir. 2021); Vallone v. CJS Sols. Grp., LLC, 9

F.4th 861, 863 (8th Cir. 2021). One circuit has said, in dicta, that “sales of similar

vehicles and the presence of dealerships in a forum can support personal

jurisdiction,” but that case involved a resident-plaintiff and therefore is not

conclusive on the issue in this case. Trimble Inc. v. PerDiemCo LLC, 997 F.3d 1147,

1156–57 (Fed. Cir. 2021). No circuit cases are directly on point. None discusses

the situation where an individual who resides outside the forum suffers in-forum

injuries from a product that he himself brought into the forum, but which happens to

also be marketed by the defendant in the forum.

It is well-settled that the actions of a plaintiff or third party cannot alone

constitute a basis for personal jurisdiction over a defendant. See Walden v. Fiore,

571 U.S. 277, 286 (2014). The minimum contacts analysis must focus on the

defendant’s actions in the forum state. Id. Thus, the fact that the Tylers drove their

F-250 into Alabama cannot establish personal jurisdiction over Ford. The fact that

Defendant Lane side-swiped the Tylers in Alabama also cannot establish personal

jurisdiction over Ford. Indeed, none of the events with the particular F-250 at issue

can be fairly characterized as contacts that Ford made with Alabama. The only

contacts that Ford made with Alabama—and thus the only contacts upon which

personal jurisdiction can be based—are the other marketing, servicing, repair, and

sales contacts that Ford regularly performs in Alabama.

Ignoring the fact that the crash occurred in Alabama brings significant clarity

to the situation. Indeed, this case becomes immediately comparable to Bristol-

Myers. In that case, the defendant had distributed the complained-of product all

across the country, including in California, the forum state. 137 S. Ct. at 1783.

However, the plaintiffs did not acquire their products in California and were not

California residents. Id. For the nonresident plaintiffs, the issue of personal

jurisdiction was clear: the defendant’s mere fostering of a market for the product in

California was not enough to confer personal jurisdiction where the specific product

at issue was not sold in California and where the plaintiffs did not buy the product

in or reside in California. Id.

The Supreme Court in Ford Motor said that the “arise out of or relate to” test

still has “real limits.” Ford Motor, 141 S. Ct. at 1026. The Court cringed at the idea

of plaintiffs being able to sue in all fifty states for a local controversy. Id. at 1027

n.3. This kind of unlimited jurisdiction has long been the bogeyman of the Supreme

Court’s personal jurisdiction jurisprudence. See Hanson, 357 U.S. at 251 (“But it is

a mistake to assume that this trend heralds the eventual demise of all restrictions on

the personal jurisdiction of state courts.”). Yet, if Ford’s contacts with Alabama—

related to this case solely because similar products are being marketed, sold, and

repaired—are sufficient to support personal jurisdiction, then there is essentially no

limit on personal jurisdiction against Ford. Ford maintains such a market in every

state, as do nearly all motor vehicle manufacturers. Personal jurisdiction would

become irrelevant in suits against nationwide companies.

Additionally, the Supreme Court in Ford Motor went to great lengths to

explain how Ford’s contacts with the forum states in those cases were relevant to the

resident-plaintiffs’ claims. 141 S. Ct. at 1028–29. The Court discussed at length the

possibility of causation for resident-plaintiffs. Id. Further, the Court specifically

mentioned the residency of the plaintiffs at least twenty times in the opinion. Id. If

residency were irrelevant, much of the Court’s analysis would be irrelevant. The

Court’s holding—that “resident-plaintiffs [who] allege that they suffered in-state

injury because of defective products that Ford extensively promoted, sold, and

serviced in Montana and Minnesota” can invoke the jurisdiction of their home states,

id. at 32 (emphasis added)—would be too narrow, as it would be unnecessary to

qualify the holding by mentioning the residency of the plaintiff.

It has been said that “everything is related to everything else.” See Waldo

Tobler, A Computer Movie Simulating Urban Growth in the Detroit Region, 46

Economic Geography 234 (1970) (laying out Tobler’s First Law of Geography). But

the Supreme Court was adamant that its “related to” test is not unlimited. In order

for there to be any “real limits” on Ford’s personal jurisdiction, then Ford’s contacts

with Alabama must have some relation to the suit beyond the mere analogical

relationship in this case. Simply serving the forum state’s market—even serving the

relevant product to the market—is not alone enough of a relationship to meet the

minimum contacts requirement. Accord Mason v. Sony Pictures Ent., Inc., 2021 WL

1663492, at *5 (N.D. Ga. Apr. 28, 2021) (holding that no personal jurisdiction exists

where the only suit-related conduct in the forum was the national airing of the

allegedly trademark-infringing television show).

Ford’s contacts with Alabama have nothing to do with the complained-of

vehicle, and Plaintiff has not drawn any connection between Ford’s contacts and the

events-at-suit. Plaintiff does not explain any relationship between Ford’s Alabama

activities and her vehicle crash. Because of this, Ford’s contacts with the state of

Alabama are insufficient to support the exercise of specific personal jurisdiction in

this case.

B. General Personal Jurisdiction

The prevailing Supreme Court jurisprudence, outlined above, says that

general personal jurisdiction applies wherever a defendant is “at home.” However,

Plaintiff does not argue that Ford is at home in Alabama. Instead, Plaintiff argues

that general jurisdiction is appropriate because Ford has consented to the general

jurisdiction of the state of Alabama. Specifically, Plaintiff argues that Ford has

consented to jurisdiction in Alabama by virtue of Ford’s registering to do business

in the state.

Plaintiff’s argument is fundamentally inconsistent with the modern view of

general jurisdiction. Even the Supreme Court in its recent decision against Ford

mentioned that “general jurisdiction over Ford . . . attaches in Delaware and

Michigan,” Ford’s state of incorporation and principal place of business

respectively. Ford Motor, 141 S. Ct. at 1024. Modern jurisprudence says that a

company is “at home” only in those places it maintains “continuous and systematic”

contacts—where some central part of the company is located. See Daimler, 571 U.S.

at 137. In almost every case, this will be limited to the company’s state of

incorporation and principal place of business. Id. at 139.

Registering to do business in a state obviously does not create a relationship

with that state that is on the same level as reincorporating in that state or moving the

corporate headquarters to that state. In general, Alabama law requires a corporation

to register before doing business in the state—no matter how minor or sporadic that

business is. See Ala. Code § 10A-1-7.01(c). If Plaintiff’s argument were correct,

then every nationwide and global corporation that is registered in Alabama, even if

it has never in fact conducted business in the state, could be sued in Alabama for any

and all claims against it, even claims based on events in another state or country.

Nevertheless, if case law were written in stone, Plaintiff would have an airtight

argument. In Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912, 914 (Ala. 1991),

the Alabama Supreme Court held that any corporation registered to do business in

Alabama has consented to the jurisdiction of the Alabama state courts—thereby

seemingly resolving the state law issue. And in Pennsylvania Fire Insurance Co. of

Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95 (1917), the United

States Supreme Court held that a state can require the appointment of a registered

agent for companies doing business in the state and can treat such appointment as

consent to the jurisdiction of the state courts—thereby seemingly resolving the

constitutional issue.

But cases are not written in stone, and these two cases are no longer good law.

1. Alabama law does not equate registration with consent to

jurisdiction.

Like in any personal jurisdiction analysis, the first question is whether a

statute or rule authorizes the exercise of jurisdiction. As mentioned above, this court

is authorized to exercise the same jurisdiction as the courts of the state of Alabama.

See Fed. R. Civ. P. 4(k). The question therefore is one of Alabama law. When a

federal court must apply the law of one of the several states, it is “bound to decide

the case the way it appears the state’s highest court would.” Risley v. Nissan Motor

Corp. USA, 254 F.3d 1296, 1299 (11th Cir. 2001).

Alabama allows service of process on an out-of-state party under any

circumstance not inconsistent with the Due Process Clause. See Ala. R. Civ. P.

4.2(b). This is the familiar form of a long-arm statute. At least thirty-two of the fifty

states have extended their long-arm statutes to the limits of the Due Process Clause.

See Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to

the Limits of Due Process, 84 B.U. L. Rev. 491, 496–97, 525–29 (2004) (identifying

twenty states that have done so by statutory text and an additional twelve that have

done so by statutory interpretation). However, Plaintiff does not argue that this

section applies to this case. 2 Instead, Plaintiff argues that another statute, Ala. Code

§ 10A-1-7.32, requires all registered foreign corporations to submit to the general

jurisdiction of the courts of Alabama as a condition of registration. Plaintiff argues

that all registered foreign corporations have essentially consented to be treated the

same as domestic, Alabama corporations—which are obviously amenable to suit in

Alabama because they are “at home” in Alabama.

Plaintiff relies on Ex parte Nissei Sangyo Am., Ltd., 577 So. 2d 912, 914 (Ala.

1991), in support of her argument. In Ex parte Nissei Sangyo, the Alabama Supreme

Court said that:

[The foreign company] has submitted itself to the jurisdiction of the

courts of this state. The basis of the trial court’s jurisdiction of [the

foreign company] comes from its being qualified under § 10–2A–226,

Ala. Code 1975, to do business in Alabama. It has, by its qualification,

submitted itself to the jurisdiction of the trial court. One of the purposes

of the qualification statute is to compel foreign corporations to submit

themselves to the jurisdiction of the courts of this state. See Jones v.

Martin, 15 Ala.App. 675, 74 So. 761 (1917). Once a foreign

corporation designates a place of business and an agent residing at that

2 Of course, an argument based on Rule 4.2(b) of the Alabama Rules of Civil Procedure

would likely be misplaced. Rule 4.2(b) only applies to out-of-state service, and Plaintiff is instead

arguing that her in-state service was equivalent to serving a domestic corporation. See Ala. R. Civ.

P. 4.2(b). The statutory and constitutional questions therefore do not perfectly overlap.

place, the corporation is deemed to have submitted to the jurisdiction

of the state courts. Jefferson Island Salt Co. v. E.J. Longyear Co., 210

Ala. 352, 98 So. 119 (1923).

577 So. 2d at 914.3

Although it has never been explicitly overruled, it is clear that Ex parte Nissei

Sangyo is no longer good law. First, the statute that Ex parte Nissei Sangyo relied

upon has been amended since the case was decided in 1991. In 1991, section 10-

2A-227 of the Code of Alabama said:

A foreign corporation which shall have received a certificate of

authority under this chapter shall . . . enjoy the same, but no greater,

rights are privileges as a domestic corporation . . . and . . . shall be

subject to the same duties, restrictions, penalties and liabilities now or

hereafter imposed upon a domestic corporation of like character.

Ala. Code § 10-2A-227 (1991).

Language very similar to this could be found in section 10-2B-15.05 from

1994 to 2009. See Ala. Code § 10-2B-10.05 (1994). In 2009, the Alabama

legislature reorganized this section, dividing the section into two parts. The first,

section 10A-1-7.32, said: “A foreign nonfiling entity or a foreign filing entity

registered under this article enjoys the same but no greater rights and privileges as

the domestic entity to which it most closely corresponds.” Ala. Code § 10A-1-7.32

(2009). The following section, section 10A-1-7.22, said:

3 The fact that the Alabama Supreme Court relied solely on two cases decided before

International Shoe is concerning, but it is obviously not reason to disregard the court’s

interpretation of Alabama law.

Subject to this title and other laws of this state in any matter that affects

the transaction of intrastate business in this state, a foreign entity and

each member, owner, or managerial official of the entity is subject to

the same duties, restrictions, penalties, and liabilities imposed on a

domestic entity to which it most closely corresponds or on a member,

owner, or managerial official of that domestic entity.

Ala. Code § 10A-1-7.33 (2009).

In 2018, section 10A-1-7.32 was slightly modified: “A foreign entity with a

registration under this article enjoys the same but no greater rights and privileges as

the domestic entity to which it most closely corresponds.” Ala. Code § 10A-1-7.32

(2018). More importantly, the following section, listing the “duties, restrictions,

penalties, and liabilities” of a foreign corporation, was repealed in 2018. Ala. Code

§ 10A-1-7.33 (2018).

“When analyzing statutory history, we presume that a change in the language

of a statute . . . connotes a change in meaning.” Bourdon v. U.S. Dep’t of Homeland

Sec., 940 F.3d 537, 544 (11th Cir. 2019) (quotation marks omitted); see also Antonin

Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts § 40, at

256 (2012). And while Ex parte Nissei Sangyo may have bound this court if it were

interpreting the 1991 version of the statute, the question is whether the Alabama

Supreme Court would give a similar interpretation to the current version of the

statute. The repeal of the “duties, restrictions, penalties, and liabilities” language

implies that foreign corporations are not intended to be subject to the same duties,

restrictions, penalties, and liabilities as domestic Alabama corporations. The duty

of consenting to the general jurisdiction of the courts of the state of Alabama may

be one such duty that is no longer encompassed by the statute.

But in rulings before and after the repeal, the Alabama Supreme Court has

already made clear that it no longer believes in Plaintiff’s consent theory. First, a

plurality of the Alabama Supreme Court in Hinrichs v. General Motors of Canada,

Ltd., 222 So. 3d 1114, 1159 (Ala. 2016), said that merely maintaining a nationwide

market is not enough to subject oneself to the general jurisdiction of Alabama.

Second, in Facebook, Inc. v. K.G.S., the Alabama Supreme Court rejected an

argument even closer to Plaintiff’s. The plaintiff in that case argued that the foreign

corporation was “subject to general jurisdiction in Alabama because it is registered

to do business in Alabama.” 294 So. 3d 122, 134 (Ala. 2019), reh’g denied (Aug.

23, 2019), cert. denied, 140 S. Ct. 2739 (2020). That argument was rejected by a

majority of the Alabama Supreme Court. Id. Six of the justices joined the opinion;

one justice concurred in the result without a separate opinion; and the remaining two

justices recused themselves. Id. at 147.

While neither Hinrichs nor Facebook explicitly used the word “consent” or

explicitly overruled Ex parte Nissei Sangyo, it is clear that the Alabama Supreme

Court no longer believes in Plaintiff’s consent theory. And for good reason: Waiver

of a constitutional right should not be treated lightly, and a statute that broadly states

that a foreign corporation “enjoys the same but no greater rights and privileges”4 as

a domestic corporation is not a clear indication to a foreign corporation “that its

compliance [with the registration requirement] would be construed as consent to

answer in [Alabama]’s courts for any purpose.” Waite v. All Acquisition Corp., 901

F.3d 1307, 1320 (11th Cir. 2018).

Alabama Code section 10A-1-7.32 does not clearly indicate that foreign

corporations are required to submit to the general jurisdiction of the courts of

Alabama as a condition of registration. The Alabama Supreme Court recently

rejected the argument that registration equates to such consent. See Facebook, 294

So. 3d at 134. The court therefore must conclude that Alabama law does not permit

the exercise of general jurisdiction that Plaintiff seeks in this case.

2. Even if Plaintiff’s consent theory is authorized under Alabama law,

it does not comply with Due Process requirements.

In the ancient days of our republic, a state could not exercise jurisdiction

outside of its territorial boundaries. State jurisdictional statutes therefore had to look

to some in-state activity to latch personal jurisdiction onto. This approach was

typified in the Supreme Court’s 1877 decision in Pennoyer v. Neff, where the Court

4 In a sense, a foreign corporation like Ford can never “enjoy[] the same but no greater

rights and privileges” as Alabama corporations. Alabama corporations can often evade federal

subject matter jurisdiction for claims by Alabama residents brought under Alabama law. See 28

U.S.C. § 1332. Ford cannot. No matter if Ford’s registration is considered consent to personal

jurisdiction, subject matter jurisdiction cannot be conferred by waiver or consent. See Gonzalez v.

Thaler, 565 U.S. 134, 141 (2012).

held that the improper attachment of in-state property resulted in a lack of

jurisdiction. See Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (“[N]o tribunal

established by [a state] can extend its process beyond that territory so as to subject

either persons or property to its decisions.”). Some state laws even said that a

person’s driving an automobile on the state’s highways constituted the appointment

of “a designated state official as his agent to accept process,” therefore permitting

the exercise of personal jurisdiction even after the person had left the state. Shaffer

v. Heitner, 433 U.S. 186, 202 (1977). Similarly, registration of a corporation in the

forum state was one such way to attach personal jurisdiction. See Pennsylvania Fire,

243 U.S. at 95.

That framework was abandoned in International Shoe. See 326 U.S. at 316;

see also Shaffer, 433 U.S. at 202. Replacing that framework was the system of

“minimum contacts” and “notions of fair play and substantial justice” explained

above. Although the Supreme Court has never identified and specifically overruled

every old case that used the Pennoyer framework, International Shoe and Shaffer

make clear that the entire framework is no longer valid. See Shaffer, 433 U.S. at 212

n.39 (“To the extent that prior decisions are inconsistent with this standard [set in

International Shoe], they are overruled.”). Shaffer specifically held that some in-

state activity that qualified as a basis for personal jurisdiction under the old Pennoyer

framework will not qualify under the new International Shoe framework. See id. at

216–17 (holding that the exercise of quasi in rem jurisdiction is not constitutional

unless the International Shoe test is satisfied).

It is for that reason that a majority of federal courts to consider the issue have

rejected Pennsylvania Fire or at least cast significant doubt on its continued

viability. See, e.g., Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 136 (4th Cir. 2020)

(“Given the number of states that subject foreign corporations to domestication

requirements, foreign corporations would likely be subject to general jurisdiction in

every state where they operate—a result directly at odds with the views expressed

by the Court in Daimler.”); Waite, 901 F.3d at 1318 (“After Daimler, there is ‘little

room’ to argue that compliance with a state’s ‘bureaucratic measures’ render a

corporation at home in a state.”); AM Tr. v. UBS AG, 681 F. App’x 587, 588 (9th

Cir. 2017) (citation omitted) (“[The plaintiff] advocates a rule that would subject a

large bank to general personal jurisdiction in any state in which the bank maintains

a branch. However, Daimler explained that ‘[a] corporation that operates in many

places can scarcely be deemed at home in all of them.’”); 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.”).

Even beyond the inconsistency with International Shoe, Shaffer, and Daimler,

the Supreme Court has made clear in other areas that a state cannot require waiver

of a constitutional right as a prerequisite to doing business. See Koontz v. St. Johns

River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (explaining the unconstitutional

conditions doctrine); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571 (1949)

(“The State may arbitrarily exclude [foreign corporations] or may license them upon

any terms it sees fit, apart from exacting surrender of rights derived from the

Constitution of the United States.”). This doctrine of unconstitutional conditions

extends to rights secured by the Due Process Clause, including the right to be haled

into only those jurisdictions with which one has minimum contacts.

Pennsylvania Fire was overruled by International Shoe and Shaffer, along

with the entire system of territorial thinking represented by Pennoyer. Today, it is

clear that registration alone is not a valid method of establishing minimum contacts

and that a state cannot require consent to the general jurisdiction of the state as a

prerequisite to registration. Thus, even if consent could be implied under Alabama

law, that consent would not provide a basis for the constitutional exercise of personal

jurisdiction in this case.

V. CONCLUSION

For the reasons stated above, it is ORDERED:

1. Ford Motor Company’s Motion to Dismiss (Doc. # 12) is GRANTED;

2. Plaintiff’s claims against Ford Motor Company are DISMISSED

without prejudice for lack of personal jurisdiction; and

3. The Clerk of the Court is DIRECTED to terminate Ford Motor

Company from the docket sheet and to change the caption accordingly.

A final judgment will be entered separately. This case will remain open as

Plaintiff’s claims against Defendant Lane are still pending.

DONE this 17th day of November, 2021.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE