Amicus Curiae Brief — Robert Mallory, Petitioner v. Norfolk Southern Railway Co.

No. 21-1168

____________________________________________

In The

Supreme Court of the United States

___________

ROBERT MALLORY,

Petitioner,

v.

NORFOLK SOUTHERN RAILWAY CO.,

Respondent.

On Writ of Certiorari to the

Pennsylvania Supreme Court

-----------------------------BRIEF OF AMICUS CURIAE

CIVIL PROCEDURE PROFESSORS

IN SUPPORT OF NEITHER PARTY

July 12, 2022

ALAN B. MORRISON

COUNSEL OF RECORD

GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

2000 H STREET NW

Washington, DC 20052

(202) 994-7120

abmorrison@law.gwu.edu

i

Contents

INTEREST OF THE AMICI……………………….1

INTRODUCTION & SUMMARY OF

ARGUMENT…………………………………….…… 2

ARGUMENT.….………………………………………7

THE JUDGMENT BELOW SHOULD BE

VACATED AND REMANDED.….………..……..…7

The Due Process Clause Does Not Preclude

Registration Jurisdiction……..….…………….. 7

The Dormant Commerce Clause Does Not

Generally Bar the Exercise of Registration

Jurisdiction……...……………………….…..…. 13

CONCLUSION ..................................................... 24

ii

Authorities

Cases

Armstrong v. Pomerance, 423 A. 2d 174 (Del.

1980)…………………………………………………..10

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(2011)………………………………………………….11

Aybar v. Aybar, 177 N.E.3d 1257 (N.Y. 2021)..…17

BNSF Ry. Com v. Tyrell, 137 S. Ct. 1549 (2017)...2

Bristol-Meyer-Squibb Co. v. Superior Court,

137 S. Ct. 1773 (2017).………………………............2

Brown v. Lockheed-Martin Corp., 814 F.3d 619

(2d Cir. 2016).……………………………………..…19

Budde v. Kentron Hawaii, Ltd., 565 F.2d 1145

(10th Cir. 1977)…………………………………...…20

Burnham v. Superior Court, 495 U.S. 604

(1990)………………………………………………...…7

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585

(1991).……………………………………………...8, 10

Cooper Tire & Rubber Co. v. McCall, 863 S.E.2d

81 (Ga.2021)..……………………………………..5, 16

Daimler AG v. Bauman, 571 U.S. 117

(2014)……………………………………………..2, 5, 7

DeLeon v. BNSF Ry. Co., 426 P.3d 1 (Mont.

2018)………………………………………………..…19

iii

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141

S. Ct. 1017 (2021)……………………………….....…3

Genuine Parts Co. v. Cepec, 137 A.3d 123 (Del.

2016).……………………………………………….…19

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

564 U.S. 915 (2011)…………………………………..2

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).…22

Ins. Corp. of Ir. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694(1982)………………………….8

International Shoe Co. v. Washington, 326 U.S.

310 (1945) .……………………………..………3, 9, 24

Kedy v. A.W. Chesterton Co., 946 A.2d 1171 (R.I.

2008)………………………………………………..…22

Mathews v. Eldridge, 424 U.S. 319 (1976)….11, 12

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950)…………………………..…11, 12

National Bellas Hess, Inc. v. Department of

Revenue of Illinois, 386 U.S. 753 (1967)……...….12

Pa. Fire Ins. Co. of Phila. v. Gold Issue Mining &

Milling Co., 243 U.S. 93 (1917)……………….. 6, 18

Pennoyer v. Neff, 95 U.S. 714 (1877)…….…………8

Pike v. Bruce Church, Inc., 397 U.S. 137

(1970)……………….……..1, 6, 14, 15, 18, 21, 23, 24

iv

Piper Aircraft Co. v. Reyno, 454 U.S. 235

(1981)……………………………………………….…22

Pittock v. Otis Elevator Co , 8 F.3d 325 (6th Cir.

1993)………………………………………………..…20

Quill Corp. v. North Dakota,

504 U.S. 298 (1992)...………………………..…12, 16

Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745

(4th Cir. 1971)………………………………...…..…20

Rini v. New York Cent. R. Co., 240 A.2d 372 (Pa.

1968)………………………………………….…….…22

Shaffer v. Heitner, 433 U.S. 186 (1977)………..…9

South Dakota v. Wayfair, Inc,

138 S. Ct. 2080 (2018)…..………………….………15

State ex rel. Norfolk S. Ry. Co. v. Dolan, 512

S.W.3d 41 (Mo. 2017)…………………………….…19

Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 443 (2008)………………….…13-14

Constitution

Dormant Commerce Clause ….…..………………..

……………………..1, 6, 12, 13, 14, 16, 18, 21, 23

Due Process Clause…………..…….1, 5, 6, 7, 12, 23

v

Statutes & Rules

10 Del. Code § 3114 ………….…………………..9,10

28 U.S.C. § 1404…………………………….……....22

28 U.S.C. § 1441…………………………….…..22, 23

28 U.S.C. § 1445………………………….………….22

42 Pa. Stat. § 5301….………………………………..4

Federal Arbitration Act, 9 U.S.C. § 2 ……………11

Federal Rule of Civil Procedure 12(b)(2)...………..9

Federal Rule of Civil Procedure 12(h)(1).….……...9

Other Authorities

Alan B. Morrison, Safe at Home: The Supreme

Court’s Personal Jurisdiction Gift to Business,

68 De Paul L. Rev. 517 (2019)…….……………13

Brief of Appellees, Concepcion v. AT&T Mobility

LLC, No. 08-56394, 2009 WL 2494187 (9th Cir.

filed Mar. 9, 2009)…………………………………..11

Restatement (Second) Conflicts of Law § 84

(1971)………………………………………………….21

1

INTEREST OF THE AMICI 1

Amici are law professors who teach civil

procedure, including personal jurisdiction, which is

the subject of this case. Helen Hershkoff, Arthur R.

Miller, and John E. Sexton teach at New York

University Law School; Alan B. Morrison teaches

at George Washington University Law School. The

law schools are listed for identification purposes

only. Amici have no pecuniary or other interest in

the outcome of this case.

Amici argue that the Due Process Clause of

the federal Constitution does not preclude states

from conditioning registration to do business on the

company’s consent to personal jurisdiction. Amici

believe, however, that constitutional limits to that

authority may be based on the Dormant Commerce

Clause and in particular this Court’s decision in

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

Because not all the facts that properly bear on the

answer to the jurisdicitonal question under Pike

are in the record, amici submit that the proper

remedy is to vacate and remand and, accordingly,

submit this brief in support of neither party.

1 No person other than the amici has authored this brief in

whole or in part or made a monetary contribution toward its

preparation or submission. Petitioner and respondent have

filed blanket consents to the filing of amicus briefs..

2

INTRODUCTION &

SUMMARY OF ARGUMENT

Personal jurisdiction litigation today is all

about forum shopping by both plaintiffs and

defendants, for which this Court has become the

referee. In Goodyear Dunlop Tires Operations, S.A.

v. Brown, 564 U.S. 915 (2011), this Court rejected

the effort of North Carolina residents, whose

children died in a bus crash in France, to maintain

suit in the North Carolina state courts against the

foreign companies that allegedly caused their

deaths. Then, in Daimler AG v. Bauman, 571 U.S.

117 (2014), this Court refused to allow Argentine

citizens to sue the German parent of an Argentine

corporation in a California federal court for injuries

that occurred in Argentina.

The same result occurred when plaintiffs

sought a favorable state forum for companies with

substantial business in the forum, but the claim

had no connection to the forum state. Thus, in

BNSF Ry. Com v. Tyrell, 137 S. Ct. 1549 (2017), the

Court refused to allow two employees of the

defendant railroad, who were non-residents of

Montana, and whose injuries occurred in other

states, to sue the railroad in the Montana state

courts that were thought to be friendly to railroad

workers. And, in Bristol-Meyer-Squibb Co. v.

Superior Court, 137 S. Ct. 1773 (2017), the Court

blocked 592 out-of-state plaintiffs from joining 86

in-state plaintiffs who had sued defendant in

California, because their injuries occurred oustide

3

California, even though the claims of both the instate and out-of-state plaintiffs were identical.

Similarly, when it was the defendant that was

seeking to use personal jurisdiction to force the

plaintiffs to bring suit in an inconvenient forum,

the Court also said “no” in Ford Motor Co. v. Mont.

Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021). The

Court there rejected the effort of Ford to require

plaintiffs, whose injuries occurred in the forum

states where they also resided, to file their cases in

other states, either where Ford was incorporated,

where it had its principal place of business, or

where it had designed or manufactured the

allegedly defective vehicle.

Whatever the questions once were regarding

the territorial reach of the state courts,

International Shoe Co. v. Washington, 326 U.S.

310, 320 (1945), established that state courts have

broad, but not unlimited, powers to adjudicate

claims against out-of-state defendants, as long as

doing so is “reasonable and just according to our

traditional conception of fair play and substantial

justice.” That principle has proven to be too openended to provide meaningful guidance to litigants

and the lower courts, especially in light of global

and virtual markets. Accordingly, this Court has

developed a number of approaches to personal

jurisdiction designed to provide answers to

particular applications of that general principle.

At issue here is the principle enabling courts to

exercise personal jurisdiction over a defendant who

has consented to be sued in the forum state, in this

case, as a result of having registered by statute to

4

do business there, which amici refer to as

registration jurisdiction.

Petitioner here filed suit in a Pennsylvania

state court against respondent Norfolk Southern

Railway, which was incorporated and had its

headquarters in Virginia. Petitioner alleged that

he developed colon cancer as a result of his

exposure to asbestos while working for respondent

in both Virginia and Ohio. He also worked for

respondent in Pennsylvania and lived there until

his retirement which roughly coincided with the

discovery of his cancer. The complaint does not

allege that the cancer resulted from petitioner’s

work for respondent in Pennsylvania. Because

respondent has 2,278 miles of track and operates

eleven rail yards and three locomotive repair shops

in the state (Pet. at 3), it was required to register

with the state and to consent to personal

jurisdiction in its courts over suits against it. 42

Pa. Stat. § 5301(a)(2)(i). Moreover, under section

5301(b), that consent specifically includes “any

cause of action … whether or not arising from acts

enumerated in this section,” i.e.. it includes acts

occurring outside of Pennsylvania.

Because of Pennsylvania’s registration

statute, it was not necessary for petitioner to seek

to establish specific jurisdiction over respondent.

Whether petitioner’s claim sufficiently relates to

respondent’s conduct in Pennsylvania was not

asked and the courts below did not resolve that

question.

Because respondent was not

incorporated in Pennsylvania and did not have its

principal place of business there, general

5

jurisdiction was plainly lacking under this Court’s

decision in Daimler, absent a showing of

“exceptional circumstances. However, the Court

in Daimler did not consider whether compliance

with a state registration statute satisfied that

condition. For those reasons, petitioner relied on

registration jurisdiction as a basis for personal

jurisdiction, but the Pennsylvania Supreme Court

ruled that its courts could not constitutionally

exercise that form of jurisdiction over petitioner’s

claim because of the Due Process Clause. Pet. App.

at 42a. That ruling was required, according to that

court, because petitioner was trying to obtain

general jurisdiction over respondent, and Daimler

precluded state courts from exercising jurisdiction

over claims that do not arise in the forum state,

unless the defendant is “at home” in the forum

state, and respondent is not at home in

Pennylvania.

To the extent that the court below concluded

that registration jurisdiction is never a

constitutional basis for jurisdiciton, that ruling

was in error. In cases in which the plaintiff’s claim

has a substantial connection to the forum state,

even if less than required to obtain specific

jurisdiction, registration jurisdiction, to which the

defendant has consented, can provide a traditional

and valid basis to secure personal jurisdiction. As

amici read the opinion of the Pennyslvani Supreme

Court, it declared that the Pennsylvania

registration jurisdiction is facially invalid, even

though there are cases like Cooper Tire & Rubber

Co. v. McCall, 863 S.E.2d 81 (Ga. 2021), petition for

cert. pending, No. 21-926, discussed below, in

6

which there are more than sufficient contacts with

the forum state to defeat an as-applied challenge to

the law.

Amici do not contend that there are no limits

to the reach of registration jurisdiction, and hence

decisions like Pa. Fire Ins. Co. of Phila. v. Gold

Issue Mining & Milling Co., 243 U.S. 93 (1917), in

which the claim has no relation to the forum state,

should be overturned. However, amici also believe

that the Dormant Commerce Clause and this

Court’s decision in Pike v. Bruce Church, Inc., 397

U.S. 137, 142 (1970), in particular its inquiry into

the relative burdens and benefits of the state law,

rather than the Due Process Clause, are the

preferred method of analysis. In this case, both

parties and the lower courts proceeded on an all-ornothing basis (as the law appeared to be at the

time) in resolving the jurisdictional quesiton. As a

result, although the lower courts erred in

concluding that registration jurisdiction was

always unconstitutional, the record is not sufficient

to determine the comparative benefits and burdens

of allowing the use of the Pennysylvania

registration jurisdiction statute in this case.

Accordingly, the Court should vacate the judgment

below and remand to allow the record to be

supplemented and for the Pennsylvania state

courts to make the Pike determination.

7

ARGUMENT

THE JUDGMENT BELOW

SHOULD BE VACATED AND REMANDED.

The Due Process Clause Does Not Bar

Registration Jurisdiction.

Respondent and the court below appear to

take the position that a state court may obtain

personal jurisdiction over a claim that arose wholly

outside the forum state only if that court has

general jurisdiction, i.e., when the defendant is “at

home” in the forum state because it is incorporated

in that state or has its principal place of business

there. Daimler AG v. Bauman, 571 U.S. 117, 122,

127 (2014). That position is plainly incorrect.

The clearest example of a court with general

jurisdiction over a defendant not at home in the

state is Burnham v. Superior Court, 495 U.S. 604

(1990). The defendant was domiciled in New

Jersey, where he lived with his wife until she

moved to California. The husband was personally

served in California, and this Court upheld the

lower court ruling that it had general jurisdiction

over him, against a Due Process challenge that the

court could not adjudicate his wife’s claims for

divorce, alimony, and child support.

A further basis for securing general

jurisdiction over an out-of-state defendant occurs

when the defendant consents to be sued in that

state. Under the law of Pennsylvania, a company

that registers is not made amenable to suit in that

8

state simply because it registered: when it registers

it also signs a consent, as required by state law, to

be sued in Pennsylvania. Amici do not understand

either the Pennsylvania Supreme Court or

respondent to argue that consent can never be the

basis for obtaining personal jurisdiction, and if

they did, they would be facing a long history of

contrary precedent.

For example, in Pennoyer v. Neff, 95 U.S.

714, 735 (1877), this Court stated that, in certain

circumstances, non-residents could be required “to

appoint an agent or representative in the State to

receive service of process and notice in legal

proceedings instituted . . . and provide . . . that

judgments rendered upon such service may . . . be

binding upon the non-residents both within and

without the State.” Subsequently, this Court again

acknowledged consent as a basis for personal

jurisdiction, noting that there are a “variety of legal

arrangements by which a litigant may give express

or implied consent to the personal jurisdiction of

the court [including] constructive consent to the

personal jurisdiction of the state court in the

voluntary use of certain state procedures.’” Ins.

Corp. of Ir. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 703-04 (1982).

Moreover, no one questions that a forumselection clause in a contract can confer personal

jurisdction under its terms, regardless of where the

conduct giving rise to the claim took place.

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585

(1991). In addition, under federal (and most state)

rules and statutes, if a defendant fails to raise a

9

defense of lack of personal jurisdiction in a timely

manner, the defense is forfeited, no matter where

the claim arose. See Federal Rules of Civil

Procedure 12(b)(2) and 12(h)(1).

Shaffer v. Heitner, 433 U.S. 186 (1977), did

not change the Court’s approach to consent

jurisdiction, even as it set constitutional limits on

the validity of quasi-in rem jurisdiction as a basis

for imposing personal liability on an out-of-state

defendant who owns property in the forum-state.

To the contrary, the opinion repudiated the

contention made by defendants in some

registration jurisdiction cases that the combination

of International Shoe and Shaffer cuts back on all

methods of obtaining personal jurisdiction over

non-residents for out-of-state claims other than athome general jurisdiction: “The immediate effect of

this departure from Pennoyer's conceptual

apparatus was to increase the ability of the state

courts to obtain personal jurisdiction over

nonresident defendants.” Id. at 204 (emphasis

added).

What is most significant about Shaffer for

this case is the response of the Delaware

legislature and the Delaware courts to this Court’s

decision. Within 13 days of the decision, the

Delaware legislature enacted 10 Del. Code § 3114

(a), which provides that every non-resident who

becomes a director of a Delaware corporation shall

“be deemed thereby to have consented to the

appointment of the registered agent of such

corporation … as an agent upon whom service of

process may be made in all civil actions or

10

proceedings brought in this State … in any action

or proceeding against such director… for violation

of a duty in such capacity.” The constitutionality of

that statute was upheld in Armstrong v.

Pomerance, 423 A. 2d 174 (Del. 1980), even though

the claims in that case did not arise out of

defendant’s conduct in Delaware and so arguably

lacked a sufficient connection with Delaware if that

is required. The important point, however, is that

if Due Process were violated unless plaintiffs could

fit their claims under either general or specific

jurisdiction, statutes like section 3114, utilizing a

form of consent similar to that at issue here, would

be unconstitutional.

A holding that Due Process voids consent in

all cases, as respondent broadly suggests, would

contravene many decisions of this Court and

require that major areas of the law that rely on

variants of consent as a basis for jurisdiction be

recast. For example, the contract provision at issue

in Carnival Cruise Lines, supra, required a

passenger who was injured on a cruise ship in

Pacific waters to sue only in Florida.

If

respondent’s consent to register and be sued in

Pennsylvania does not allow this suit, the contract

in Carnival Cruise Lines would have been per se

invalid Yet this Court upheld that forum selection

provision, finding that the chosen forum was

reasonable, 499 U.S. at 591-93, which is an

important element of the concept of registration

jurisdiction advanced by amici.

Similarly,

this

Court’s

consistent

interpretations of the Federal Arbitration Act, 9

11

U.S.C. § 2, which applies only when both parties

consent to arbitration, could not stand in cases like

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

(2011). In that case, the plaintiffs “consented” to

arbitration only after having purchased the

product at issue. As a result, the consent was given

at a time that failed to provide a reasonable

opportunity to object to the forced waiver of their

constitutional rights to sue in court before a jury of

their peers. 2

Nothing in Daimler bars the use of

registration as a basis for personal jurisdiction.

There is no mention of registration statements in

Daimler. Daimler considered only whether a court

may exercise general jurisdiction when an entity

“has not consented to suit in the forum.’” 571 U.S.

at 129. It did not resolve the separate question of

whether consent to jurisdiction via a business

registration statute that unambiguously gives

notice to the registrant comports with Due Process.

Moreover, Due Process is primarily a procedural

protection that assures that a party receives

reasonable notice and a meaningful opportunity to

be heard. Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 313 (1950). See also

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)

setting forth the three interests that must be

considered when deciding whether the procedures

required by Due Process have been satisfied. But

here respondent makes no claim of a denial of any

procedural protections: it argues instead that Due

2 See Brief of Appellees, Concepcion v. AT&T Mobility LLC,

No. 08-56394, 2009 WL 2494187 (9th Cir. filed Mar. 9, 2009)

(Statement of Facts).

12

Process gives it the substantive right to keep the

case out of the Pennsylvania courts despite its

having consented to be sued there.

The best evidence that the Due Process

Clause is not a proper basis for respondent’s claim

that it cannot be sued in Pennsylvania in this case

is this Court’s decision in Quill Corp. v. North

Dakota, 504 U.S. 298 (1992). At issue there was a

North Dakota law that required out-of-state

companies that made substantial sales to North

Dakota residents to collect the North Dakota use

tax imposed in lieu of a sales tax when a product

was sent from another state. A prior decision in

National Bellas Hess, Inc. v. Department of

Revenue of Illinois, 386 U.S. 753 (1967), had found

a similar statute to be unconstitutional as a

violation of both the Due Process and the Dormant

Commerce Clauses. However, the Court in Quill

ruled that Due Process was no barrier, although

the Dormant Commerce Clause still rendered the

law invalid.

In both Quill and this case, there are no

procedural flaws in the law under cases such as

Mullane or Mathews, but rather a substantive

objection to the power of the state to take certain

regulatory action that will affect conduct outside

the state. Therefore, as in Quill, Due Process is not

a proper basis for challenging registration

jurisdiction generally or as applied to this case. As

we now show, if there is a problem with a plaintiff

using registration statutes to sue over claims

13

against a non-resident business, the proper way to

challenge those applications is under the Dormant

Commerce Clause. 3

The Dormant Commerce Clause Does Not

Generally Bar the Exercise of Registration

Jurisdiction.

Apparently recognizing that a defendant’s

actual consent, freely give, suffices for personal

jurisdiction, respondent argues that it had no

choice but to sign the Pennsylvania registration

statement and consent in order to do business

there. Amici assume that, as a practical matter,

because respondent wanted to derive benefits from

the Pennsylvania market, it had no choice but to

register. For that reason, the Court should treat

the Pennsylvania statute as if it read,

“Corporations

that

do

business

in

the

Commonwealth are subject to suit in the courts of

the Commonwealth arising out of their business,

regardless of where the claim arose.” But as amici

show below, because there are many cases in which

the application of both the actual Pennsylvania

statute and the hypothetical one would be

constitutional, the Court should examine them as

applied and not as facial challenges. See Wash.

3 For a discussion by one of the amici as to why the Dormant

Commerce Clause is generally the preferable way to analyze

all efforts by state courts to exercise personal jurisdiction over

non-resident businesses, see Alan B. Morrison, Safe at Home:

The Supreme Court’s Personal Jurisdiction Gift to Business,

68 De Paul L. Rev. 517 (2019).

14

State Grange v. Wash. State Republican Party, 552

U.S. 443, 449–51 (2008) (discussing preference for

as- applied over facial challenges). Accordingly, the

question under the Dormant Commerce Clause is

whether the law is constitutional based on the facts

of the claim at issue. 4

Because

Pennsylvania’s

registration

requirements do not discriminate against nonresident corporations, they are valid unless they

fail the standard set forth in Pike v. Bruce Church,

Inc., 397 U.S. 137, 142 (1970):

Where the statute regulates evenhandedly to effectuate a legitimate local

public interest, and its effects on

interstate commerce are only incidental,

it will be upheld unless the burden

imposed on such commerce is clearly

excessive in relation to the putative local

benefits.

This Court further explained its test this way:

In its brief in opposition (at 15), respondent invokes the

unconstitutional conditions doctrine as a basis for holding

that there is no personal jurisdiction over it, on the theory

that Pennsylvania cannot require non-resident companies to

“consent” to be sued in the state as a condition of doing

business there. In our view, given the facts of this case, that

argument is no more than an alternative statement of the

claim under the Dormant Commerce Clause, which is a better

suited vehicle for analyzing that defense. This brief does not

address other situations in which the unconstitutional

conditions doctrine may impose independent constraints on

state authority.

4

15

If a legitimate local purpose is found, then

the question becomes one of degree. And

the extent of the burden that will be

tolerated will of course depend on the

nature of the local interest involved, and

on whether it could be promoted as well

with a lesser impact on interstate

activities. Id.

Applying that standard, the burden for Norfolk

Southern to defend in Pennsylvania is minimal. It

is a major railroad that has extensive facilities in

Pennsylvania, and its Virginia headquarters are

only about 300 miles from the court where the case

was filed. It will surely have no difficulty obtaining

qualified counsel since it has to defend other suits

involving Pennsylvania accidents on a regular

basis. And because petitioner was exposed to

respondent’s asbestos in both Virginia and Ohio, at

least some fact witnesses will have to come from

out-of-state no matter where the case is tried.

On the benefits side, the record is silent on

why petitioner chose to sue in Pennsylvania. It

does reveal that he worked and lived there before

he learned that he had colon cancer. Presumably,

some of his medical or other witnesses reside there,

but in the absence of further evidence for the

selection of this forum, the courts cannot decide the

balancing required by Pike.

In any event, this Court’s decision in South

Dakota v. Wayfair, Inc, 138 S. Ct. 2080 (2018),

confirms that the Dormant Commerce Clause does

not bar the Pennsylvania courts from using

16

registration jurisdiction to enable them to

adjudicate many claims against out-of-state

defendants. The Court there reversed its prior

ruling in Quill and upheld South Dakota’s law that

required large out-of-state sellers like Wayfair to

collect sales taxes on their shipments into South

Dakota and to remit them to the state in the face of

a Commerce Clause challenge. There can be no

question that the law imposed some burdens and

costs on the sellers, but it also served two

important purposes: it raised substantial revenues,

and it protected in-state sellers from the unfair

advantage that out-of-state sellers had because

they did not have to charge the sales tax.

The benefits from laws like Pennsylvania’s

registration statute can be seen by looking at the

facts in Cooper Tire & Rubber Co. v. McCall, 863

S.E.2d 81 (Ga. 2021), petition for cert. pending, No.

21-926, which involves a Georgia similar law, and

which is being held for this case. The 2016 injury

in Cooper occurred in Florida to a Florida resident

who was a passenger in a car owned and driven by

one defendant who was a Georgia resident. The

allegedly defective Cooper tire was installed on the

car when it was sold to the Georgia driver by a local

Georgia car dealer defendant, who could only have

been sued in Georgia. Id. at 83. Although Cooper

does not design or manufacture tires in Georgia, it

maintains an enormous regional distribution

facility in Albany, Georgia which is the sixthlargest warehousing building in the entire State.

From 2013 to 2017, Cooper distributed

approximately 2,500,000 tires through this facility,

17

and during those same years, sold more than

1,000,000 tires in Georgia. 5

Had the accident happened in Georgia, there

is no doubt that, after Ford Motor Co, supra,

Cooper could have been sued in Georgia. But its

burden of proving that its tire was not defective will

be no different in Georgia in that case than if the

accident had happened in Georgia. The practical

reason that plaintiff chose Georgia as the forum in

Cooper is that Georgia is the only state where all

three defendants – driver/owner, car dealer, and

tire manufacturer – can be joined in a single

lawsuit. And the strategic reason for defendant

Cooper to try the case in any place but Georgia is

to avoid its liability by pointing to the empty

defendant’s chair, where the car dealer should be

sitting, which would enable it to shift the blame to

the dealer, just as the dealer will try to do to Cooper

if the case is tried in Georgia without Cooper. 6

Wayfair is important for another reason:

Wayfair argued that, if the South Dakota law at

issue were upheld, that holding would support laws

that harmed small sellers or permit states to enact

burdensome and complex laws that would result in

substantial burdens on commerce. The Court’s

response was that the Commerce Clause is

sufficiently flexible in its ability to respond to those

5

Brief in Opposition in Cooper Tire No. 21-926 at 7.

6 The factual scenario and the reason why the plaintiffs in

Aybar v. Aybar, 177 N.E.3d 1257 (N.Y. 2021), wanted the case

brought in New York are the same as in Cooper: there was a

New York tire dealer who had sold the tire in question who

could not be used in Virginia where the accident occurred.

18

fact-specific situations, and hence there was no

need to bar South Dakota from enforcing its

otherwise fair and reasonable law. 138 S. Ct. at

2098-99. As in Wayfair, the Dormant Commerce

Clause in this context is also sufficiently flexible to

respond to cases at the center of respondent’s

arguments, where the defendant would face

significant hardship from being haled into a

Pennsylvania court, or where the claims have no

connection to its conduct in the forum state.

However, Pennsylvania’s registration jurisdiction

is constitutional on its face, although in some cases

the facts may support constitutional concerns

where the “burden imposed on . . . commerce is

clearly excessive in relation to the putative local

benefits.” Pike, 397 U.S. at 142.

The facts of two registration jurisdiction

cases from this Court illustrate how the Dormant

Commerce Clause, when applied under existing

doctrine, would produce reasonable results. In Ex

parte Schollenberger, 96 U.S. 369 (1877), a citizen

of Pennsylvania, brought suit in the Circuit Court

of that state against certain foreign insurance

companies, based on policies which they had

severally issued on his property in Pennsylvania,

relying for jurisdiction on their consents filed in

order to do business in the state. Those facts would

give rise to no Dormant Commerce Clause problem.

By contrast, in Pa. Fire Ins. Co. of Philadelphia v.

Gold Issue Mining & Milling Co., 243 U.S. 93

(1917), that Clause, as interpreted in Pike, would

bar the suit from being brought in Missouri by a

Colorado corporation regarding property in

Colorado, that was insured by an Arizona

19

insurance company that was registered to do

business in Missouri, because the burden of

defending in that state exceeded any legitimate

benefit from allowing the Colorado plaintiff to sue

there.

In fact, a number of cases cited by

respondent in its brief in opposition involve blatant

forum shopping on the part of the plaintiff, as

evidenced by the lack of any connection between

the claim made and the forum chosen. These

include State ex rel. Norfolk S. Ry. Co. v. Dolan, 512

S.W.3d 41 (Mo. 2017), where an Indiana citizen

who worked for the defendant in Indiana, which is

where he was injured, but nonetheless sued the

railroad in Missouri, and DeLeon v. BNSF Ry. Co.,

426 P.3d 1 (Mont. 2018), which involved three

railroad cases where non-residents of Montana

sued there for injuries that occurred in other

states.

Similarly, in a suit involving wrongful

exposure to asbestos, the plaintiffs chose to sue in

Delaware (where they had similar suits against

other companies that were incorporated there),

even though plaintiffs were Georgia residents, the

defendant was a Georgia corporation, and the

exposure took place in Florida. Genuine Parts Co.

v. Cepec, 137 A.3d 123 (Del. 2016). See also Brown

v. Lockheed-Martin Corp., 814 F.3d 619 (2d Cir.

2016) (multiple exposures to asbestos outside the

forum state by plaintiff’s father).

Another case that attempted to use

registration jurisdiction to secure a favorable

20

forum is Budde v. Kentron Hawaii, Ltd., 565 F.2d

1145, 1146 (10th Cir. 1977), where the claim was

described as one

for damages based on personal injuries

sustained as a result of the defendants'

negligence, where the plaintiff is a citizen of

Louisiana, the two corporate defendants are

incorporated in Hawaii and Pennsylvania,

respectively, with each corporation qualified

to do business in Colorado, and the cause of

action is not based on the business activity

carried on by either corporation within the

State of Colorado, but rather on an accident

which occurred in Viet-Nam.

In some cases, the plaintiffs seek to use the

defendant’s registration in their home state to sue

for a claim that arose elsewhere. Pittock v. Otis

Elevator Co , 8 F.3d 325 (6th Cir. 1993) (injury in

Las Vegas elevator to Ohio couple). In others, such

as Ratliff v. Cooper Laboratories, Inc., 444 F.2d

745, 746 (4th Cir. 1971), the plaintiffs did not use

registration jurisdiction to obtain a convenient

forum, but “for the sole purpose of availing

themselves” of the forum state’s statute of

limitations statute because the limitation periods

had run in the other states with a connection with

the claims at issue.

To be sure, in future cases courts

scrutinizing the exercise of registration jurisdiction

under the Dormant Commerce Clause will need to

strike the appropriate balance between the parties’

competing interests in a favorable forum. In most

21

of the cases in which registration jurisdiction is

relied on, the defendant is a large multistate

company for which the burden of hiring counsel

and bringing in its expert and fact witnesses is a

small portion of the burden of having to defend no

matter where the case is tried. Moreover, because

these challenges can be made only on an as-applied

basis, defendants will have a significant burden to

establish the invalidity of being sued there under

the standard in Pike when they have knowingly

consented to be sued in that jurisdiction. But when

plaintiffs choose a forum, for which there are no

legitimate benefits under Pike, in contrast to a case

like Cooper Tire, the courts will have the necessary

tools to curb forum-shopping abuse.

Finally, even if there is registration

jurisdiction, defendants may also invoke the

doctrine of forum non conveniens as set forth in the

Restatement (Second) Conflicts of Law § 84 (1971)

to obtain dismissal of their case:

Forum Non Conveniens: A state will

not exercise jurisdiction if it is a

seriously inconvenient forum for the

trial of the action provided that a more

appropriate forum is available to the

plaintiff.

The near universal availability of the doctrine can

be seen from an opinion of the Rhode Island

Supreme Court, which officially adopted it, after

reviewing the laws in all fifty states. Kedy v. A.W.

Chesterton Co., 946 A.2d 1171, 1180 n.9 (R.I. 2008).

22

Not surprisingly, the Pennsylvania Supreme

Court has relied on that doctrine to affirm a

dismissal of a case against a railroad in which the

accident occurred in another state, the plaintiffs

were non-residents, and there were no witnesses

from the county where the case was filed. Rini v.

New York Cent. R. Co., 240 A.2d 372, 373 (Pa.

1968).

Indeed, this Court has endorsed the

doctrine in a diversity case filed in federal court in

New York, where personal jurisdiction was based

on a corporate registration statute similar to that

relied on here. Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 507 (1947). See also Piper Aircraft Co. v.

Reyno, 454 U.S. 235 (1981).

Another means for defendants to deal with

what they believe to be an improper forum is to

remove the case to federal court under 28 U.S.C. §

1441, and then move to transfer under 28 U.S.C. §

1404(a). That path is available for almost all

federal question cases, but not this one because

Congress has expressly excluded Federal Employer

Liability Act cases like this from removal. 28

U.S.C. § 1445. Removal is also available under

section 1441 for many diversity cases. It would not,

however, be available in a case like Cooper Tire,

because of the exclusion from removal where there

is an in-state defendant because of the express

prohibition on such removals in section 1441(b).

However, in cases like Cooper Tire, the need to join

all the defendants in one court provides the

strongest justification for plaintiffs to be able to use

23

registration jurisdiction, while at the same time

advancing judicial efficiency through consolidation

of related claims in a single forum.

The bottom line is that a properly calibrated

use of registration jurisdiction, with the protections

of the Dormant Commerce Clause and the

availability of other laws that guard against

improper forum shopping, satisfy the requirements

of the Constitution, and nothing in the Due Process

Clause or Daimler is to the contrary. Most cases

under the Dormant Commerce Clause will be easy

to resolve, but for the few that are not, the fact that

the defendant has registered to do business and

consented to be sued in the forum state should tip

the balance under Pike in favor of the plaintiff

because the party alleging that registration

jurisdiction as applied to those facts is

unconstitutional will not be able to show that the

law imposes burdens that are “clearly excessive in

relation to the putative local benefits.”

However, because in this case, the benefits

of allowing this suit to be brought in Pennsylvania

are unclear, the Court should remand the case to

enable the Pennsylvania courts to develop the

record and to address the determination required

to be made under Pike. That augmentation could

include evidence that petitioner’s colon cancer grew

internally and manifest itself while he was a

Pennsylvania resident and was working for

respondent, as well as where he was first treated

24

for cancer and where his doctors and other

witnesses are located. That kind of connection, in

addition to respondent’s “continuous and

systematic” presence in the state, International

Shoe, supra, 326 U.S. at 317, would be more than

enough to satisfy the balancing test in Pike.

CONCLUSION

For the foregoing reasons, the judgment

below should be vacated, and the case remanded

for further proceedings under the Dormant

Commerce Clause.

Respectfully submitted,

JULY 12, 2022

Alan B. Morrison

Counsel of Record

George Washington

University Law School

2000 H Street NW

Washington D.C. 20052

(202) 994-7120

abmorrison@law.gwu.edu