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

Supreme Court briefJul 12, 2022

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No. 21-1168

IN THE

Supreme Court of the United States

————

ROBERT MALLORY,

Petitioner,

NORFOLK SOUTHERN RAILWAY CO.,

Respondent.

————

On Writ of Certiorari to the

Pennsylvania Supreme Court

————

BRIEF OF AMICI CURIAE OF THE CENTER

FOR AUTO SAFETY AND THE ATTORNEYS

INFORMATION EXCHANGE GROUP,

SUPPORTING PETITIONER

————

MICHAEL BROOKS

Executive Director

CENTER FOR AUTO SAFETY

1825 Connecticut Ave. NW

Washington D.C., 20009-5708

LARRY E. COBEN

Counsel of Record

ANAPOL WEISS

8700 E. Vista Bonita Dr.

Ste 268

Scottsdale, AZ 85255

(480) 515-4745

lcoben@anapolweiss.com

Counsel for Amici Curiae The Center for Auto Safety

and The Attorneys Information Exchange Group

(Chief Legal Officer)

July 12, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Table of Contents ......................................................... i

Table of Authorities................................................. ii-v

Statues ........................................................................ v

Interest of Amici Curiae.............................................. 1

Summary of the Argument ......................................... 8

Argument .................................................................... 9

Why Shouldn’t Norfolk Southern be Sued in a State

Where It Registers to Do Business and Carries on

Substantial Business? ........................................................... 26

Conclusions .............................................................. 30

TABLE OF AUTHORITIES

Page(s)

A General Look At General Jurisdiction,

66 Tex. L. Rev. 721, (1988) .................................. 11

A Suggested Analysis, 79 Harv. L. Rev.

1121, (1966) .......................................................... 29

Arthur T. von Mehren & Donald T. Trautman,

Jurisdiction to Adjudicate:................................... 29

Asshauer v. Farallon Capital Partners, LP, 319

S.W.3d 1, 8 n.7 (Tex. App. 2008) ......................... 30

Baltimore v. O.R. Co. v. Harris, 79 U.S.

65, (1870) .............................................................. 13

BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549,

198L. Ed. 2d 36 (2017) ................................... 16, 19

Burger King Corp. v. Rudzewicz, 471 U.S.

462, 105 S.Ct. 2174, 85

L.Ed.2d 528 (1985) ......................................... 27, 29

Burnham v. Superior Court of California,

County of Marin, 495 U.S. 604,

110 S. Ct. 2105 (1990) ........................ 15, 22, 23, 26

Cooper Tire & Rubber Company v. McCall,

863 S. E. 2d 81, (Ga. 2021). ................................. 12

Daimler AG v. Bauman, 571 U.S. ––––,

134 S.Ct. 746, 187 L.Ed.2d

624 (2014) ................................................. 16, 17, 25

TABLE OF AUTHORITIES CONTINUED

Page(s)

Dodd, Jurisdiction in Personal Actions,

23 Ill. L. Rev. 427, (1929) ..................................... 22

Downing v. Losvar, 21 Wash. App. 2d 635,

507 P. 3d 894, 907-908 (2022)........................ 15, 27

E.g., Pennsylvania Fire Ins. Co. of

Philadelphia v. Gold Issue Mining & Milling

Co., 243 U.S. 93, 37 S.Ct. 344,

61 L.Ed. 610 (1917) .............................................. 20

E.g., Pennsylvania Lumbermen's Mut. Fire

Ins. Co. v. Meyer, 197 U.S. 407,

25 S.Ct. 483, 49 L.Ed. 810 (1905) ........................ 20

E.g., Pullman Palace-Car Co. v. Lawrence,

74 Miss. 782, 22 So. 53, 55–56 (Miss. 1897)........ 21

Ford Motor Co. v. Montana Eight Judicial

District Court, 141 S. Ct. 1017, (2021) ........ 5, 7, 19

Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 131 S.

Ct. 2846, 2853 (2011) ...................... 8, 9, 11, 16, 25

Hanson v. Denckla, 357 U.S. 235, 78 S.Ct.

1228, 2 L.Ed.2d 1283 (1958) ................................ 14

Helicopteros Nacionales de Colombia,

SA v. Hall, 466 U.S. 408, 104 S.Ct. 1868,

80 L.Ed.2d 404 (1984) .............................. 18, 19, 29

Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71

L.Ed. 1091 (1927) ................................................. 14

iii

TABLE OF AUTHORITIES CONTINUED

Page(s)

Hoffheimer, End of the Line for General Territorial

Jurisdiction, 87 Tenn. L.

Rev. 419, (2020) .................................................... 25

Honda Motor Co. v. Oberg, 512 U.S. 415,

114 S.Ct. 2331, 129 L.Ed.2d 336 (1994) ........ 19, 20

Hutchinson v. Chase & Gilbert, 45 F.2d 139

(2d Cir. 1930)........................................................ 10

Ins. Corp. of Ireland v. Compagnie des Bauxites

de Guinee, 456 U.S. 694, 102 S.

Ct. 2099 (1982) ..................................................... 25

International Shoe Co. v. Washington,

326 U.S.310, 66 S.Ct. 154,

90 L.Ed. 95 (1945) .................... 9, 17, 19, 22, 23, 24

International Text Book Co. v. Pigg, 217 U.S.91,

30 S. Ct. 481, 54 L.Ed. 678 (1910) ....................... 22

Kane v. New Jersey, 242 U.S. 160, 37 S.Ct.

30, 61 L.Ed. 222 (1916) ........................................ 14

Klein v. Board of Tax Supervisors, 282 U.S.

19, 24, 51 S.Ct. 15, 16, 75 L.Ed. 140,

73 A.L.R. 679 .......................................................... 9

Mackey v. Montrym, 443 U.S. 1, 99 S. Ct.

2612 (1979) ........................................................... 26

McGee v. International Life Insurance Co.,

355 U.S. 220, 78 S. Ct. 199 (1957) ....................... 28

TABLE OF AUTHORITIES CONTINUED

Page(s)

Mississippi Pub. Corp., v. Murphree, 326 U.S.

438, 66 S. Ct. 242 (1946) ...................................... 26

Perkins v. Benguet Consol. Min. Co.,

342 U.S. 437, 72 S. Ct. 413, 418,

96 L. Ed. 485 (1952) ............................................. 11

Rosenberg Bros. & Co. v. Curtis Brown Co.,

260 U.S. 516, 43 S.Ct. 170,

67 L.Ed. 372 (1923) .............................................. 22

St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354,

27 L.Ed. 222 (1882) .............................................. 14

The Essentially-At-Home Requirement For

General Jurisdiction: Some Embarrassing Cases,

70 Cath. U. L. Rev. 273, (2021) ........................... 16

Western and Southern Life Ins. Co. v. State Bd.

Of Equalization of California, 451 U.S. 648,

101 S. Ct. 2070 (1981) .......................................... 26

What Price “Due Process,” 5 N. Y. L. Rev.

435, (1927) ............................................................ 21

World-Wide Volkswagen Corp. v. Woodson,

100 S. Ct. 580 (1980) .............................................. 6

STATUTES

Page(s)

15 Pa. C.S. § 411(a) ................................................... 27

61 Pa. C. S. § 614 ....................................................... 27

Interest of Amici Curiae1

This Amici brief is submitted on behalf of The

Center for Auto Safety (CAS) and the Attorneys

Information Exchange Group. The issue raised in this

appeal has significant jurisprudential implications for

every American citizen who has a due process right to

seek legal redress when she or he suffers harm at the

hands of another, whether the culprit is an individual

or a corporation. In this moment in time, the

perplexing issue raised by this appeal is why shouldn’t

a nationwide corporation be subject to personal

jurisdiction in each state in which it decides to obtain

the benefits obtained by registering to do business and

carrying out continuous and substantial business—

regardless of the state in which the harm has arisen?

Every day, national and multi-national corporations

extend their business activities to citizens across the

country, taking advantage of each State’s market and

protective laws, and yet there are many instances

when an individual looking for legal redress cannot

find it unless he or she travels to a faraway State.

While the filing of papers incorporating a nationwide

corporation in a particular state (State “D”) allows

that business entity to be haled into court predicated

upon principles of general jurisdiction—even when

the first and last time the foreign company took any

action in State “D” was filing those papers—the same

company is not subject to general jurisdiction when it

registers to conduct business and in fact conducts

substantial business in State D. Respectfully, the

predicate for allowing for general jurisdiction in the

1 Counsel of Record have consented to the filing of Amicus

briefs. This Brief was written entirely by the Amici without any

monetary contribution from anyone.

former (incorporation), but not the latter (register to

do business and conduct business) ignores both reality

and the predictability of modern day business

practices.

Throughout the country, nationwide and multinational businesses provide products and services to

Americans in every State. While most businesses

not. Of course, the scope of a company’s business in a

particular state will vary based upon the nature of

the business, ranging from a single transaction to

thousands and thousands of transactions every year.

Nevertheless, current jurisdictional jurisprudence

does not acknowledge this stark difference. In this

instance the Respondent, after registering to do

business in Pennsylvania, has for decades conducted

very substantial and continuous business in the

Commonwealth and yet, today they are protected

against being haled into court unless the plaintiff’s

chosen forum is: (1) the company’s state of

incorporation or its principal place of business

[general jurisdiction], or (2) a venue where the

company has conducted continuous and substantial

business and the harm suffered is related to the

company’s conduct in that venue [specific

jurisdiction]. While these two rules of jurisdictional

jurisprudence have, over the course of the past 50

years, evolved in an effort to provide predictability

and fairness in accordance with due process

principles, there remain a host of circumstances

which leave many Americans without a reasonable

forum choice and provide some companies

unnecessary protection from judicial accountability. It

is the latter circumstance that has moved your Amici

to file this brief. It is respectfully submitted that the

gap between general and specific jurisdiction should

be addressed in this instance, establishing quasigeneral jurisdiction which will fill the existent

analytical gap created by this Honorable Court’s

definitional resolution of cases which “fit” into either

general or specific jurisdiction, but have left unsolved

cases like this one that do not fit into either

jurisdictional camp.

CAS was established in 1970 by Ralph Nader

and the Consumers Union and it is an outgrowth of

the "Corvair" scandal. After that ordeal, "Nader

realized that his singlehanded, sporadic monitoring of

the auto industry would be ineffective." Thus, the

Center was created as an independent organization

"to keep a sharp eye on the National Highway Safety

Bureau" (Acton and LeMond, 1972, p. 69), now the

National Highway Traffic Safety Administration, by

advocating, researching, and litigating as necessary.

Today the Center's original goals remain: to work for

improved vehicle highway safety, reliability, and

economy. While these basic tenets reflect its founders'

original purposes, the Center itself has grown

tremendously. Operating with more than 10,000

members and funded by individual contributions, the

Center employs a small staff. CAS is a nonprofit

research and advocacy organization which provides a

public voice for auto safety. Our mission is to improve

the safety, efficiency, reliability and cost to the

consumer of vehicles, which explicitly demands that

we do what we can to help reduce motor vehicle

deaths, injuries and crashes. These goals often cause

the Center to furnish testimony before Congressional

oversight committees and sponsor independent

analysis of pending safety legislation, government

safety regulations and public health issues arising

because of mistakes in the design, sale or marketing

of unsafe vehicles. To this end, the Center has also

been involved in several lawsuits, challenging

decisions of the Secretary of Transportation and the

National Highway Traffic Safety Administration

(NHTSA).

In addition to its direct litigation activity, the

Center occasionally participates as an amicus curiae,

when the issue relates directly to the relationship

between vehicle safety, consumer protection and the

role of the civil justice system in facilitating these

goals. The safety of the design of motor vehicles is

dependent, in part, upon allowing the American Civil

Justice System to monitor when injury occurs because

of poor design decisions, and providing the injured

consumer access to our court system to allow jurors to

decide whether compensation is warranted.

Your Amicus, the Attorneys Information

Exchange Group (AIEG) is an organization of more

than eight hundred (800) attorneys and their law

firms who practice civil litigation throughout the

United States. The members of AIEG regularly and

routinely represent clients who have themselves or

they have experienced the loss of family members

because of the design and marketing of unsafe

products. We represent the safety interests of

consumers who, unfortunately, are the victims of

poorly or unsafely designed products which

precipitate accidents or needlessly cause injury across

the United States. Headquartered in Birmingham,

Alabama, AIEG was founded in the mid-1970s by

attorneys representing burn victims whose vehicles

had burst into flames in the wake of collisions. In

founding this organization, AIEG's pioneer members

have dedicated themselves to the creation of a private

cooperative entity that serves both to educate

Americans who have suffered serious or catastrophic

injury as a result of defectively designed motor

vehicles and to coordinate the legitimate acquisition

of technical information germane to these citizens' fair

and honest legal representation.

Currently, motor vehicle consumers and the clients

represented by AIEG face challenges like this one, in

which a foreign corporation has purposefully

registered to do business in the forum and carried-on

substantial business in the forum and yet it objects to

the jurisdiction of the forum on the basis that despite

its awareness of the legal effects of registration, it

claims the forum court lacks jurisdiction to hear

claims brought against it—when the harm arose in a

state different from the selected forum.2 This objection

2 An example fact pattern demonstrating the consternation

created by the current scope of general versus specific

jurisdiction includes the following: Ms. Jones purchased her

SUV while living in Pennsylvania, but then she moved to

Kansas. While driving to Pennsylvania to visit family, she is in

a wreck in Indiana. She believes that her SUV’s faulty design

precipitated the wreck. She files suit in Kansas where the

manufacturer of the SUV is registered to do business and does

substantial business. Does the Kansas court under Ford v.

Montana Eighth Judicial District, 141 S. Ct. 1017 (2021) have

specific jurisdiction? [Perhaps not—because the harm did not

“arise there”.] Does the Kansas court have general jurisdiction

because the manufacturer is registered to do business there and

is present there by conducting continuous and substantial

is very much the same as that raised by Norfolk

Southern. If this objection is sustained, it will make it

much more difficult for consumers to bring their

claims in a forum of their choosing and in which the

tortfeasor has chosen to register to do business, obtain

the legal benefits of registering and in fact conducts

continuous and substantial business. Eliminating this

predictable venue despite a foreign company’s in-state

activities will lead to added hardship to those litigants

who select a convenient forum and it will provide

nationwide companies with further “cover” against

legitimate lawsuits.

Most vehicles sold in this country come from a

foreign manufacturer or a domestic company

headquartered in Michigan. Vehicles designed and

built in other countries or outside of Michigan are

typically exported to this country (or shipped from a

remote state to the forum state by a shipper) by a

wholly owned subsidiary and then distributed to every

state in the Union. The current practice (which is a

legitimate one) is that the manufacturer’s American

subsidiary

American

manufacturers

are

incorporated in a State that has comparatively

protective substantive laws minimizing tort liability

(e.g., Texas and Michigan) and then marketed

throughout the country via a subsidiary (or by the

American manufacturer) after registering to do

business? [Not unless it is deemed “at home”.] Does the

Commonwealth of Pennsylvania have specific jurisdiction?

[Perhaps not—because the harm did not “arise there”.] Does

Indiana have specific jurisdiction? [Perhaps so—World-Wide

Volkswagen Corp. v. Woodson, 100 S. Ct. 580 (1980)—but

maybe not because the manufacturer’s conduct in Indiana is not

related to the harm.

business in each state—so that they may take

advantage of the same commercial licensing privileges

afforded to in-state incorporated businesses.

Unfortunately, these products frequently include

features (e.g., Takata airbags that explode) that cause

harm. When harm arises, the consumer is currently

restricted to filing suit against the American

subsidiary (and perhaps the foreign manufacturer) or

the American company where it is incorporated or has

its principal place of business [based on principles of

general jurisdiction] and the forum where the harm

arose but only if it is shown that the defendant

marketed its product there and the “product

malfunctions there” [based on specific jurisdiction].

Ford Motor Co. v. Montana Eight Judicial District

Court, 141 S. Ct. 1017 (2021). However, a huge gap

exists and is evident in the instant case. The gap

relates to how jurisdictional jurisprudence should

address these circumstances: (1) the railway man,

who was a Virginian when he developed cancer—

because of the careless practices of Norfolk

Southern—brings suit in Pennsylvania where the

defendant is present and registered to do business in

Pennsylvania; or (2) the harm from the flawed vehicle

arises not in Montana (where the manufacturer or

distributor is registered to do business and does

substantial business) but while the Montanan is

driving through Florida. According to the

Pennsylvania Supreme Court and the Respondent

and its Amici, examples (1) and (2) above do not allow

for jurisdiction over the defendant (in Pennsylvania or

Montana). We respectfully submit that these

predictable circumstances require both a practical

and legally reflective merger of principles of general

and specific jurisdiction to resolve a missing piece of

the puzzle—what your Amici characterizes here as

“quasi-general jurisdiction”.

SUMMARY OF THE ARGUMENT

Your Honors’ Amici respectfully submit that

fair play and due process principles require that the

rationale for establishing “general jurisdiction” based

upon the filing of papers of incorporation should be

applied to a corporation’s filing of papers registering

to do business and its continuous and substantial

business in a State. In fact, the reasons for general

jurisdiction in the State of incorporation are more

aptly applied when companies like the Respondent

match the purposes why it registered to do business.

This Court has repeatedly held that “general

jurisdiction” is obtained when the corporation is

“present”, and it has metaphorically equated

“presence” with the corporation’s domicile, place of

incorporation, or principal place of business. Goodyear

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

924, 131 S. Ct. 2846, 2853 (2011). Yet, we are left to

wonder why the filing of papers of incorporation is

more important and determinative of general

jurisdiction than the filing of papers of registration to

do business along with the company carrying-on of

substantial and continuous business in the forum. We

think, in fact, that the following analyses proves that

principles of general jurisdiction, should be followed

and applied when a foreign business registers to do

business and is shown to carry-on continuous business

in that forum.

ARGUMENT

In Goodyear, supra., this Court summarized

and explained its view of the factual distinctions

between general and specific jurisdiction over an outof-state corporation. While subsequent decisions have

further refined the parameters justifying specific

jurisdiction, the origins of the business practices

allowing for general jurisdiction have not. In

International Shoe Co., v. State of Wash., 326 U.S.

310, 316-319, 158-160 S. Ct. 154, 160 (1945), the Court

studied the predicate for allowing suit against a

corporate entity in a forum despite the fact that the

gravamen of the lawsuit occurred elsewhere, and it

formulated a minimum contact test for jurisdiction,

finding the Delaware corporation “present” in

Washington.

Since the corporate personality is a

fiction, although a fiction intended to be

acted upon as though it were a fact, Klein

v. Board of Tax Supervisors, 282 U.S. 19,

24, 51 S.Ct. 15, 16, 75 L.Ed. 140, 73 A.L.R.

679, it is clear that unlike an individual its

‘presence’ without, as well as within, the

state of its origin can be manifested only

by activities carried on in its behalf by

those who are authorized to act for it. To

say that the corporation is so far ‘present’

there as to satisfy due process

requirements, for purposes of taxation or

the maintenance of suits against it in the

courts of the state, is to beg the question to

be decided. For the terms ‘present’ or

‘presence’ are used merely to symbolize

those activities of the corporation's agent

within the state which courts will deem to

be sufficient to satisfy the demands of due

process. L. Hand, J., in Hutchinson v.

Chase & Gilbert, 2 Cir., 45 F.2d 139, 141.

Those demands may be met by such

contacts of the corporation with the state

of the forum as make it reasonable, in the

context of our federal system of

government, to require the corporation to

defend the particular suit which is brought

there. An ‘estimate of the inconveniences'

which would result to the corporation from

a trial away from its ‘home’ or principal

place of business is relevant in this

connection. Hutchinson v. Chase &

Gilbert, supra, 45 F.2d 141.

‘Presence’ in the state in this sense has

never been doubted when the activities of

the corporation there have not only been

continuous and systematic, but also give

rise to the liabilities sued on, even though

no consent to be sued or authorization to

an agent to accept service of process has

been given.

Seven years later, the Court stated that “[t]he

instant case takes us one step further to a proceeding

in personam to enforce a cause of action not arising

out of the corporation's activities in the state of the

forum. Using the tests mentioned above we find no

requirement of federal due process that either

prohibits Ohio from opening its courts to the cause of

action here presented or compels Ohio to do so.”.

Perkins v. Benguet Consol. Min. Co., 342 U.S. 437,

446, 72 S. Ct. 413, 418, 96 L. Ed. 485 (1952). Fiftynine years later, in Goodyear, supra. 564 U.S. at 919,

the Court had occasion to reconsider the parameters

of general jurisdiction and in doing so it relied upon

an analyses between general and specific jurisdiction

surveyed and discussed in Brilmayer & Paisley’s law

review article: A General Look At General

Jurisdiction, 66 Tex. L. Rev. 721, 728 (1988) (referred

to as Brilmayer). In Brilmayer’s analyses, without

citation to specific cases, the paradigms of general

jurisdiction was described to include a corporation’s

domicile, place of incorporation and principal place of

business. Addressing the reasons why the State of

incorporation is a powerful basis for finding general

jurisdiction, Brilmayer stated: [66 Tex. L. Rev. at 733734]

Place of Incorporation and Principal

Place of Business.—The law treats

corporations like legal persons, and the

place of incorporation and the principal

place of business are both analogous to

domicile. In some respects, the decision to

incorporate in a particular state provides

a more powerful basis for adjudicatory

jurisdiction than does domicile. First, the

corporation intentionally chooses to create

a relationship with the state of

incorporation, presumably to obtain the

benefits of that state’s substantive and

procedural laws. Such a choice creates a

unique relationship that justifies general

jurisdiction over the corporation. Second,

the corporation, unlike an individual,

cannot ever be absent from the state of

incorporation. Third, even if a corporation

neither does business nor maintains an

office in the incorporating state, the

incorporation process itself provides notice

of the potential for judicial jurisdiction.

Finally, the corporation is likely to be

familiar with that state’s law, arguably

more familiar than an individual

domiciliary would be, because the

corporation

presumably

based

its

incorporation decision in part on the

state’s substantive law. [Emphasis added]

Your Amici believe that the factors recounted

by Brilmayer (above), explaining and justifying the

rationale for general jurisdiction over a foreign

company that incorporates in the forum state is in fact

more appropriate when the defendant registers to do

business and then conducts continuous and

substantial business in that venue. The proposition

that general jurisdiction over a foreign corporation is

appropriate based upon the corporation’s registration

to do business has been and should remain a

foundational principle in jurisprudential jurisdiction.

See, Cooper Tire & Rubber Company v. McCall, 863 S.

E. 2d 81, 89 (Ga. 2021).

First, when Norfolk Southern registered to do

business in Pennsylvania it acknowledged its

relationship with Pennsylvania and as the record

makes clear, it obtained state benefits otherwise not

available to it.3 Second, the record clearly shows that

Norfolk Southern has carried out substantial and

continuous business in Pennsylvania proving its

registration in the Commonwealth was purposeful

and beneficial, implicitly understanding that its

presence in the State provided notice of the potential

for judicial jurisdiction. Third, as a sophisticated

corporation, Norfolk was aware of the substantive

laws of the Commonwealth of Pennsylvania and took

advantage of them. [See discussion at page 44 of the

Petitioner’s Brief on the Merits.] Given these

circumstances, it is we respectfully submit,

reasonable to conclude that Pennsylvania courts may

assert general jurisdiction over Norfolk Southern.

Allowing the Petitioner to hale Norfolk Southern into

court in Pennsylvania because the Respondent has

exercised the rights it obtained by registering to do

business in the Commonwealth, and then availed

itself of the benefits of doing business in that State, is

both fair and reasonable. As early as 1870, this Court

found that allowing jurisdiction over a multi-state

corporation, beyond its state of incorporation—and

based upon service of process upon the defendant’s

representative in the forum selected—because the

defendant was doing business in the District was

properly initiated “as if it had been an independent

corporation of the same locality”. Baltimore v. O.R.

Co. v. Harris, 79 U.S. 65, 84 (1870). The privilege of

obtaining general jurisdiction over a non-resident

corporation (or individual) is available when that non3 See, A Guide to Business Registration in Pennsylvania at

https://www.dos.pa.gov/

BusinessCharities/Business/Documents/FEB2018%2021460%20

Guide%20to%20Business%20Registration.pdf.

resident is present in the forum. Whether the nonresident’s presence is there by happenstance or

purposefully by registering to do business in the

forum, the Court has recognized the logic of allowing

the forum to resolve disputes involving the nonresident. In 1990, the Court observed the historical

evolution of general jurisdiction, stating:

In the late 19th and early 20th

centuries, changes in the technology of

transportation and communication, and

the tremendous growth of interstate

business activity, led to an ‘inevitable

relaxation of the strict limits on state

jurisdiction’ over nonresident individuals

and corporations. Hanson v. Denckla, 357

U.S. 235, 260, 78 S.Ct. 1228, 1243, 2

L.Ed.2d

1283

(1958)

(Black,

J.,

dissenting). States required, for example,

that nonresident corporations appoint an

in-state agent upon whom process could be

served as a condition of transacting

business within their borders, see, e.g., St.

Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27

L.Ed. 222 (1882), and provided in-state

“substituted service” for nonresident

motorists who caused injury in the State

and left before personal service could be

accomplished, see, e.g., Kane v. New

Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed.

222 (1916); Hess v. Pawloski, 274 U.S.

352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927).

There is, we must acknowledge, one

factor mentioned by Justice BRENNAN

that both relates distinctively to the

assertion of jurisdiction on the basis of

personal in-state service and is fully

persuasive—namely, the fact that a

defendant voluntarily present in a

particular State has a “reasonable

expectatio[n]” that he is subject to suit

there. Post, at 2124.

. Burnham v.

Superior Ct. of California, Cnty. of Marin,

495 U.S. 604, 617-625 (1990).

Over and over again, the Court has reiterated

without any detailed study that general jurisdiction is

obtainable in the corporation’s place of incorporation.

But why?4 What magic resides in a corporation filing

paperwork in one state to obtain “incorporation”—

even if it were to then turn away from that state

without purposefully carrying-out business there? 5

Respectfully, there is none. It is a fiction of the law

4 “Courts acknowledge two types of personal jurisdiction:

general or all-purpose jurisdiction, and specific or case-linked

jurisdiction. . . . Both forms of jurisdiction require minimum

contacts. The due process clause mentions no categories of

personal jurisdiction, let alone any reference to jurisdiction. No

case has explained why notions of fairness underpinning the

due process clause dictate any boundary between specific and

general personal jurisdiction”. Downing v. Losvar, 21 Wash.

App. 2d 635, 656-657, 507 P. 3d 894, 907-908 (2022).

5 The process of incorporating a business in Delaware (Norfolk

Southern’s state of incorporation) is quite similar to what it was

required to do to register to do business. Compare, the

Delaware state requirements to those referenced in footnote 2.

See, https://www.delaware.gov/howtoform/

that has been applied. In neither Daimler nor

Goodyear did the Court explain how a corporation is

“essentially at home” in a given forum. Instead, the

Court supplied two examples: a corporation’s

principal place of business and its place of

incorporation—or as one scholar has described it, the

Court established general jurisdiction using

metaphors.

Crump,

The Essentially-At-Home

Requirement For General Jurisdiction: Some

Embarrassing Cases, 70 Cath. U. L. Rev. 273, 277,

286 (2021).

The Court’s essentially-at home

requirement for general jurisdiction is an

awkward metaphor, providing in itself

little guidance. The Court’s two examples

of fora that will fit the requirement are

helpful, in that they show two concrete

places for jurisdiction, and they serve to

communicate the narrowness of general

jurisdiction that the Court evidently has in

mind. But the basic test, the essentiallyat-home metaphor, remains open-ended.

Given its metaphorical nature, the

essentially-at-home standard dissolves

into no standard at all.

Why should this fiction of the law hold any less

validity and deny general jurisdiction when the

corporation files papers in a State to conduct business

and then in fact conducts continuous and substantial

business in that forum? This oddity in the definitional

boundaries of general jurisdiction was acknowledged

by Justice Sotomayor in BNSF Ry. Co. v. Tyrrell, 137

S. Ct. 1549, 1560-61 (2017):

I continue to disagree with the path the

Court

struck

in Daimler

Bauman, 571 U.S. ––––, 134 S.Ct. 746,

187 L.Ed.2d 624 (2014), which limits

general jurisdiction over a corporate

defendant only to those States where it is

“ ‘essentially at home,’ ” id., at ––––, 134

S.Ct., at 761.

The Court would do well to adhere

faithfully

the

direction

from International

Shoe

Co.

Washington, 326 U.S. 310, 66 S.Ct. 154, 90

L.Ed. 95 (1945), which instructed that

general jurisdiction is proper when a

corporation's

“continuous

corporate

operations within a state [are] 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.” Id., at 318, 66 S.Ct.

154. Under International Shoe, in other

words, courts were to ask whether the

benefits a defendant attained in the forum

State warranted the burdens associated

with general personal jurisdiction.

See id., at 317–318, 66 S.Ct. 154. . . .

The majority's approach grants a

jurisdictional windfall to large multistate

or multinational corporations that operate

across many jurisdictions. Under its

reasoning, it is virtually inconceivable

that such corporations will ever be subject

to general jurisdiction in any location

other than their principal places of

business or of incorporation. Foreign

businesses with principal places of

business outside the United States may

never be subject to general jurisdiction in

this country even though they have

continuous and systematic contacts within

the United States. See id., at –––– – ––––,

134 S.Ct., at 759–760. What was once a

holistic, nuanced contacts analysis backed

by considerations of fairness and

reasonableness has now effectively been

replaced by the rote identification of a

corporation's principal place of business or

place of incorporation. The result? It is

individual plaintiffs, harmed by the

actions of a farflung foreign corporation,

who will bear the brunt of the majority's

approach and be forced to sue in distant

jurisdictions with which they have no

contacts or connection.

As active participants in interstate commerce,

taking advantage of the laws of the Commonwealth of

Pennsylvania, why shouldn’t a nonresident

corporation like Norfolk Southern expect amenability

to suit in any forum that is significantly affected by

the corporation’s commercial activities? See,

Helicopteros Nacionales de Colombia, SA v. Hall, 466

U. S. 408, 423-424, 104 S. Ct. 1868 (Brennan, J,

dissenting). Just last year, Justices Gorsuch and

Thomas joined in questioning the scope of the Court’s

definitional boundaries of general jurisdiction. In

their concurring opinion in Ford, supra., 141 S. Ct. at

1033-1035, they questioned and implicitly urged that

the Court establish a rule of law that addresses with

certainty the general jurisdictional boundaries over

out-of-state (or country) corporations:

While our cases have long admonished

lower courts to keep these concepts

[general versus specific jurisdiction]

distinct, some of the old guardrails have

begun to look a little battered. Take

general jurisdiction. If it made sense to

speak of a corporation having one or two

“homes” in 1945, it seems almost quaint in

2021 when corporations with global reach

often have massive operations spread

across multiple States. To cope with these

changing economic realities, this Court

has begun cautiously expanding the old

rule in “‘exceptional case[s].’” BNSF R.

Co. v. Tyrrell, 581 U. S. ––––, ––––, 137

S.Ct. 1549, 1558, 198 L.Ed.2d 36 (2017).

International Shoe’s emergence may be

attributable to many influences, but at

least part of the story seems to involve the

rise of corporations and interstate trade.

See Honda Motor Co. v. Oberg, 512 U.S.

415, 431, 114 S.Ct. 2331, 129 L.Ed.2d 336

(1994). A corporation doing business in its

State of incorporation is one thing; the old

physical presence rules for individuals

seem easily adaptable to them. But what

happens when a corporation, created and

able to operate thanks to the laws of one

State, seeks the privilege of sending

agents or products into another State?

Early on, many state courts held

conduct like that renders an out-of-state

corporation present in the second

jurisdiction. And a present company could

be sued for any claim, so long as the

plaintiff served an employee doing

corporate business within the second

State. E.g., Pennsylvania

Lumbermen's

Mut. Fire Ins. Co. v. Meyer, 197 U.S. 407,

413–415, 25 S.Ct. 483, 49 L.Ed. 810 (1905).

Other States sought to obviate any

potential question about corporate

jurisdiction by requiring an out-of-state

corporation to incorporate under their

laws too, or at least designate an agent for

service of process. Either way, the idea

was to secure the out-of-state company's

presence

consent

suit. E.g., Pennsylvania Fire Ins. Co. of

Philadelphia v. Gold Issue Mining &

Milling Co., 243 U.S. 93, 95–96, 37 S.Ct.

344, 61 L.Ed. 610 (1917).

Unsurprisingly, corporations soon

looked for ways around rules like these. No

one, after all, has ever liked greeting the

process server. For centuries, individuals

facing imminent suit sought to avoid it by

fleeing the court's territorial jurisdiction.

But this tactic proved “too crude for the

American business genius,” and it held

some obvious disadvantages. See Jackson,

What Price “Due Process,” 5 N. Y. L. Rev.

435, 436 (1927). Corporations wanted to

retain the privilege of sending their

personnel and products to other

jurisdictions where they lacked a charter

to do business. At the same time, when

confronted with lawsuits in the second

forum, they sought to hide behind their

foreign charters and deny their presence.

Really, their strategy was to do business

without being seen to do business. Id., at

438 (“No longer is the foreign corporation

confronted with the problem ‘to be or not

to be’—it can both be and not be!”).

Initially and routinely, state courts

rejected

ploys

these.

See, e.g., Pullman Palace-Car Co. v.

Lawrence, 74 Miss. 782, 796–799, 22 So.

53, 55–56 (Miss. 1897). But, in a series of

decisions at the turn of the last century,

this Court eventually provided a more

receptive audience. On the one hand, the

Court held that an out-of-state corporation

often has a right to do business in another

State unencumbered by that State's

registration rules, thanks to the so-called

dormant Commerce Clause. International

Text-Book Co. v. Pigg, 217 U.S. 91, 107–

112, 30 S.Ct. 481, 54 L.Ed. 678 (1910). On

the other hand, the Court began invoking

the Due Process Clause to restrict the

circumstances in which an out-of-state

corporation could be deemed present. So,

for example, the Court ruled that even an

Oklahoma corporation purchasing a large

portion of its merchandise in New York

was not “doing business” there. Rosenberg

Bros. & Co. v. Curtis Brown Co., 260 U.S.

516, 517–518, 43 S.Ct. 170, 67 L.Ed. 372

(1923). Perhaps advocates of this

arrangement thought it promoted national

economic growth. See Dodd, Jurisdiction

in Personal Actions, 23 Ill. L. Rev. 427,

444–445 (1929). But critics questioned its

fidelity to the Constitution and traditional

jurisdictional principles, noting that it

often left injured parties with no practical

forum for their claims too. Jackson, 5 N. Y.

L. Rev., at 436–438.

many

ways, International

Shoe sought to start over. The Court ‘cast

... aside’ the old concepts of territorial

jurisdiction that its own earlier decisions

had seemingly twisted in favor of out-ofstate corporations. Burnham, 495 U.S., at

618, 110 S.Ct. 2105. At the same time, the

Court also cast doubt on the idea, once

pursued by many state courts, that a

company ‘consents’ to suit when it is forced

to incorporate or designate an agent for

receipt of process in a jurisdiction other

than its home State. Ibid. In place of

nearly everything that had come before,

the Court sought to build a new test

focused on “ ‘traditional notions of fair play

and substantial justice.’ ” International

Shoe, 326 U.S., at 316, 66 S.Ct. 154

(quoting Milliken v. Meyer, 311 U.S. 457,

463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

It was a heady promise. But it is

unclear how far it has really taken us.

Even today, this Court usually considers

corporations “at home” and thus subject to

general jurisdiction in only one or two

States. All in a world where global

conglomerates boast of their many

“headquarters.” The Court has issued

these restrictive rulings, too, even

though individual defendants

remain

subject to the old “tag” rule, allowing them

to be sued on any claim anywhere they can

be found. Burnham, 495 U.S., at 610–611,

110 S.Ct. 2105. Nearly 80 years removed

from International

Shoe,

seems

corporations continue to receive special

jurisdictional protections in the name of

the Constitution. Less clear is why.

. . . I cannot help but wonder if we are

destined to return where we began.

Perhaps all of this Court's efforts

since International Shoe, including those

of today's majority, might be understood

as seeking to recreate in new terms a

jurisprudence about corporate jurisdiction

that was developing before this Court's

muscular interventions in the early 20th

century. Perhaps it was, is, and in the end

always will be about trying to assess fairly

a corporate defendant's presence or

consent. International Shoe may have

sought to move past those questions. But

maybe all we have done since is struggle

for new words to express the old ideas.

Perhaps, too, none of this should come as a

surprise. New technologies and new

schemes to evade the process server will

always be with us. But if our concern is

with “ ‘traditional notions of fair play and

substantial justice,’ ” International Shoe,

326 U.S., at 316, 66 S.Ct. 154 (emphasis

added), not just our personal and

idiosyncratic impressions of those things,

perhaps we will always wind up asking

variations of the same questions.

The notion that a State in which a foreign

corporation has registered to do business and then

actively pursues its business interests should not be

allowed to hear claims against that corporation—

unrelated to its activities in that forum—is both

illogical and unfair. Depriving one state of authority

to judge a business registered to do business because

a defendant has more activity in other states works a

double injustice. It deprives one state of authority

notwithstanding

real

interest;

and

the

formal application of the rule can result in the

elimination of juridical jurisdiction from most states.

See, Hoffheimer, End of the Line for General

Territorial Jurisdiction, 87 Tenn. L. Rev. 419, 461-462

(2020). Allowing general jurisdiction to only apply in

a corporation’s state of incorporation even though it

registers to do business and conducts substantial

business in another state provides “a massive gift to

corporate defendants”. Cf., Hoffheimer, supra., 87

Tenn. L. Rev. at 455.

In Goodyear, supra. and Daimler, supra., this

Honorable Court steered away from the historically

acceptable proposition that a court may exercise

general jurisdiction over all claims against a corporate

defendant when that defendant has continuous and

systematic business contacts in the forum. It did so in

light of the factual claims it faced in those cases,

which are quite different from the (more typical)

corporate pattern of behavior present here. The more

typical corporate practice of registering to do business

and conducting continuous and substantial business

in the forum state should be the predicate for allowing

general jurisdiction. Courts may obtain general

jurisdiction over a foreign corporation in a variety of

ways including consent to jurisdiction, contractually

agreeing to jurisdiction or stipulating to it. Ins. Corp.

of Ireland v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702-03, 102 S. Ct. 2099 (1982). Why then

shouldn’t this generally accepted rule apply here?

Finding the Pennsylvania consent to general

jurisdiction statute unconstitutional because it

required Norfolk Southern to register to do business

ignores the historical due process holdings of this

Court. This Court has correctly ruled that state laws

which allow for jurisdiction or impose other

obligations upon a corporation or individual in return

for state law privileges are constitutional upon proof

of notice and the individual’s full understanding of the

mandated obligation. Here are but a few examples:

statutes allowing for jurisdiction over a non-resident

corporation via service of process in the forum state

are in accord with due process when the non-citizen

has consented to be sued and appointed a resident

agent for service of process. Mississippi Pub. Corp., v.

Murphree, 326 U.S. 438, 66 S. Ct. 242 (1946); a state

obtains personal general jurisdiction over an

individual served in the state. Burnham v. Superior

Court of California, County of Marin, 495 U.S. 604,

110 S. Ct. 2105 (1990); a state statute may impose

upon a foreign corporation registered to do business in

the forum a tax different from that charged domestic

corporations. Western and Southern Life Ins. Co. v.

State Bd. Of Equalization of California, 451 U.S. 648,

101 S. Ct. 2070 (1981); a State may statutorily

suspend a driver’s license if a driver refuses to take a

breath-analysis test because the licensing privilege

included notice of this obligation and punishment.

Mackey v. Montrym, 443 U.S. 1, 99 S. Ct. 2612 (1979).

Why Shouldn’t Norfolk Southern be Sued in a State

Where It Registers to Do Business and Carries-On

Substantial Business?

For decades, this Court has employed the

purposeful availment element so that a corporation

can choose whether to conduct business in a particular

state before subjecting itself to jurisdiction there. The

company can avoid jurisdiction all together by either

not doing business in Pennsylvania or not registering

to do business. See, Burger King Corp. v. Rudzewicz,

471 U.S. 462, 472, 105 S.Ct. 2174 (1985).6 The

continuing conduct of a nonresident defendant

intending to preserve and enlarge an active market in

the forum state constitutes purposeful activity in the

forum state and indicates that the presence of the

defendant in the forum state is not fortuitous, but the

result of deliberate efforts. Id.

Modern

commerce

demands

personal jurisdiction throughout the United States of

large corporations. The framers of the United States

Constitution, when drafting the commerce clause,

desired a common market with the states debarred

from acting as separable economic entities. In

fulfillment of Treasury Secretary Alexander

Hamilton's vision of this nation as monolithic

manufacturing engine, the United States developed

and now maintains the strongest, unified industrial

economy in the world. Downing v. Losvar, 507 P.3d

894, 911–12 (Wash. Ct. App. 2022). The vast

expansion of our national economy during the past

several decades has provided the primary rationale

for expanding the permissible reach of a

6 Under Pennsylvania law, the only “penalty” for not registering

to do business is that a foreign corporation may not be able to

“maintain an action or proceeding in the Commonwealth”. See,

15 Pa. C.S. § 411(a); 61 Pa. C. S. § 6141. Consequently, the

Pennsylvania Supreme Court’s characterization of the need to

determinative. This so-called penalty is not what the

Pennsylvania Supreme Court characterized as a choice between

doing business in Pennsylvania or not doing business at all.

Even without registering to do business, the Respondent may

conduct business there.

State's jurisdiction. By broadening the type and

amount of business opportunities available to

participants in interstate and foreign commerce, our

economy has increased the frequency with which

foreign corporations actively pursue commercial

transactions throughout the various States. In turn,

States should have more leeway in bringing the

activities of these nonresident corporations within the

scope of their respective jurisdictions. Id. Granting a

forum general jurisdiction over a corporation that

registers to do business and then executes that plan

by substantially carrying-on business in the State is

consistent with this Court’s earlier rulings because it

accepts the reality that these activities are “. . . so

substantial and of such a nature . . . that they exceed

the “at home” characterization of a corporation’s mere

filing of incorporation.

“[M]any commercial transactions touch

two or more States and may involve

parties separated by the full continent.

With this increasing nationalization of

commerce has come a great increase in the

amount of business conducted by mail

across state lines. At the same time

modern

transportation

and

communication have made it much less

burdensome for a party sued to defend

himself in a State where he engages in

economic activity.” McGee v. International

Life Insurance Co., 355 U.S. 220, 222-223,

78 S. Ct. 199 (1957)

The proposition that general jurisdiction

should be expanded over registered foreign

corporations conducting significant business in a

State is consistent with the “traditional notions of fair

play and substantial justice”, which control the

inquiry under the Due Process Clause. Allowing any

lawsuit to be filed against a foreign corporation which

has registered to do business and is an active

participant in a State’s commerce is only fair and

reasonable because of the corporation’s significant

presence. And chief among the obligations that a

nonresident corporation should expect to fulfill is

amenability to suit in any forum that is significantly

affected by the corporation's commercial activities.

Helicopteros Nacionales de Colombia, SA v. Hall, 466

U.S. 408, 422-23, 104 S.Ct. 1868, 80 L.Ed.2d 404

(1984) (Brennan, J., dissenting). A nonresident

corporation should expect amenability to suit in any

forum where it registers to do business and then

pursues significant commercial activities. Id. After

all, registration to do business and then carrying out

those activities can and should be easily characterized

as being “present” in the forum. See, Arthur T. von

Mehren & Donald T. Trautman, Jurisdiction to

Adjudicate: A Suggested Analysis, 79 Harv. L. Rev.

1121, 1136-1137 (1966).

The due process clause should not be wielded as

a territorial shield to avoid interstate obligations

voluntarily

assumed. Burger

King Corp. v.

Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85

L.Ed.2d 528 (1985). Because modern transportation

and communications render defending oneself in

another state less burdensome, a party will generally

not suffer unfairness by litigating in another

forum. Burger King Corp. v. Rudzewicz, 471 U.S. at

474, 105 S.Ct. 2174. Only in rare cases will the

exercise of jurisdiction not comport with fair play and

substantial justice when the nonresident defendant

has purposefully established minimum contacts with

the forum state. Asshauer v. Farallon Capital

Partners, LP, 319 S.W.3d 1, 8 n.7 (Tex. App. 2008).

And, most importantly, when a nationwide business

enterprise registers to do business, it has signified its

intent to be present, which should in turn provide a

consistency missing from merely filing papers of

incorporation.

Establishing a rule that a foreign corporation

which registers to do business and then conducts

substantial and continuous business in the forum may

be subject to general jurisdiction eliminates the

tension now existent between the limiting descriptors

of the “at home” test and allowing for general

jurisdiction when a party is present and served within

a state’s borders. These two examples, when fairly

merged, call for Norfolk Southern to be subject to

general jurisdiction because it is “presence” in

Pennsylvania.

CONCLUSIONS

Your Amici respectfully urge this Honorable

Court to reverse the holding of the Pennsylvania

Supreme Court and acknowledge that principles of

general jurisdiction apply here because of the

Respondent’s purposeful registration to conduct

business and its continuous and substantial business

in the State.

Respectfully submitted,

Larry E. Coben

Anapol Weiss

Counsel of Record for the

Center for Auto Safety and

the Attorneys Information

Exchange Group

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.