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

Supreme Court briefSep 2, 2022

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No. 21-1168

In the Supreme Court of the United States

ROBERT MALLORY, PETITIONER

NORFOLK SOUTHERN RAILWAY CO.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor

General

SHARON SWINGLE

JOSHUA M. KOPPEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a state court may exercise general personal

jurisdiction based on a corporation’s registration to do

business in the State.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of argument ................................................................. 3

Argument:

A. A state court may not exercise general jurisdiction

based solely on registration to do business .................... 6

1. General jurisdiction based on registration

violates this Court’s precedents ................................ 7

2. General jurisdiction based on registration

violates the principles underlying this Court’s

precedents on personal jurisdiction ........................ 10

3. Registration to do business does not constitute

valid consent to general jurisdiction...................... 14

B. Petitioner’s arguments lack merit ................................. 17

1. Pennsylvania Fire does not justify the exercise

of general jurisdiction based on registration ......... 18

2. History does not justify the exercise of general

jurisdiction based on registration ........................... 22

3. General jurisdiction based on registration is

not analogous to transient jurisdiction over

individuals ................................................................. 29

C. This Court need not address circumstances beyond

a state court’s exercise of general jurisdiction based

on registration ................................................................. 31

Conclusion ................................................................................... 33

Appendix — Statutory provisions........................................... 1a

TABLE OF AUTHORITIES

Cases:

AM Trust v. UBS AG, 681 Fed. Appx. 587

(9th Cir. 2017)...................................................................... 12

Allen v. Cooper, 140 S. Ct. 994 (2020) .................................. 21

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) .................. 16

(III)

Cases—Continued:

Page

BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017) ........ 3, 8, 21

Barr v. King, 96 Pa. 485 (1880) ............................................ 26

Barrow S.S. Co. v. Kane, 170 U.S. 100 (1898) ..................... 20

Bawknight v. Liverpool & London & Globe Ins. Co.,

55 Ga. 194 (1875) ................................................................. 25

Berlin Iron Bridge Co. v. Norton, 17 A. 1079

(N.J. 1889) .......................................................................... 25

Bristol-Myers Squibb Co. v. Superior Court,

137 S. Ct. 1773 (2017) ........................................... 8, 9, 13, 32

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ...... 15

Burnham v. Superior Court,

495 U.S. 604 (1990).................................................. 29, 30, 31

Carson v. Makin, 142 S. Ct. 1987 (2022) ............................. 19

Central R.R. & Banking Co. v. Carr,

76 Ala. 388 (1884) ................................................................ 25

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ............. 29

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) ........ 10

Daimler AG v. Bauman, 571 U.S. 117 (2014) ........... passim

Davis v. Farmers Co-operative Equity Co.,

262 U.S. 312 (1923).............................................................. 21

Dennis v. Higgins, 498 U.S. 439 (1991) ............................... 19

Diab v. British Airways, PLC, No. 20-cv-3744,

2020 WL 6870607 (E.D. Pa. Nov. 23, 2020) ...................... 12

Farrel v. Oregon Gold-Mining Co.,

49 P. 876 (Or. 1897) ............................................................. 26

Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426 (1926) ...... 16

Fithian, Jones & Co. v. New York & Erie R.R.,

31 Pa. 114 (1857) ................................................................. 26

Flexner v. Farson, 248 U.S. 289 (1919) ......................... 18, 19

Ford Motor Co. v. Montana Eighth Judicial District

Court, 141 S. Ct. 1017 (2021) ............................... 6, 9, 10, 13

Cases—Continued:

Page

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996).............................................................. 16

Frost & Frost Trucking Co. v. Railroad

Commission, 271 U.S. 583 (1926) ......................... 16, 17, 20

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

564 U.S. 915 (2011)................................................................ 8

Hanson v. Denckla, 357 U.S. 235 (1958) ............................. 13

Herrera v. Wyoming, 139 S. Ct. 1686 (2019) ...................... 22

Hess v. Pawloski, 274 U.S. 352 (1927) ................................. 18

Hoffman Constr. Co. v. Erwin, 200 A. 579 (Pa. 1938) ......... 9

Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445 (1874) ...... 17

Insurance Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982) ................... 14, 15

International Shoe Co. v. Washington,

326 U.S. 310 (1945)................................................ 5, 6, 15, 20

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011)............................................ 11, 16, 28, 32

Johnston v. Trade Ins. Co., 132 Mass. 432 (1882) .............. 27

Kimble v. Marvel Entertainment, LLC,

576 U.S. 446 (2015).............................................................. 21

Koontz v. St. Johns River Water Management

District, 570 U.S. 595 (2013) .................................. 15, 17, 19

Kulko v. Superior Court, 436 U.S. 84 (1978) ...................... 32

Littlejohn v. Southern Ry. Co., 22 S.E. 761

(S.C. 1895) ............................................................................ 26

McAuliffe v. City of New Bedford, 29 N.E. 517

(Mass. 1892) ......................................................................... 19

Michigan Central R.R. v. Mix, 278 U.S. 492 (1929) .......... 22

Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913) ............. 30

Missouri ex rel. The Burnes National Bank of

St. Joseph v. Duncan, 265 U.S. 17 (1924) ......................... 16

Cases—Continued:

Page

Mooney v. Buford & George Manufacturing Co.,

72 F. 32 (7th Cir. 1896) ....................................................... 26

Morris v. Missouri Pacific Ry. Co., 78 Tex. 17 (1890) ...... 25

Newell v. Great Western Ry. Co., 19 Mich. 336 (1869) ...... 25

North Carolina Department of Revenue v. The

Kimberly Rice Kaestner 1992 Family Trust,

139 S. Ct. 2213 (2019) ......................................................... 16

Old Wayne Mutual Life Ass’n v. McDonough,

204 U.S. 8 (1907) ................................................................. 24

Parke v. The Commonwealth Ins. Co.,

44 Pa. 422 (1863) ................................................................. 25

Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869),

overruled by United States v. South-Eastern

Underwriters Ass’n, 322 U.S. 533 (1944) ......................... 22

Pennsylvania Fire Ins. Co. v. Gold Issue Mining &

Milling Co., 243 U.S. 93 (1917) ...................................... 4, 18

Pennoyer v. Neff, 95 U.S. 714 (1878) ................... 5, 20, 22, 24

Peters v. Neely, 84 Tenn. 275 (1886) .................................... 25

Railroad Co. v. Harris, 79 U.S. (12 Wall.) 65 (1871) ... 24, 28

Rush v. Savchuk, 444 U.S. 320 (1980) ................................. 20

Sawyer v. The North American Life Ins. Co.,

46 Vt. 697 (1874) .................................................................. 25

Shaffer v. Heitner, 433 U.S. 186 (1977) ......................... 20, 27

Simon v. Southern Ry. Co., 236 U.S. 115 (1915) ................ 24

Sioux Remedy Co. v. Cope, 235 U.S. 197 (1914) ................. 21

Smith v. Mutual Life Ins. Co.,

96 Mass. (14 Allen) 336 (1867) ........................................... 27

Southern Pacific Co. v. Denton, 146 U.S. 202 (1892) ......... 16

St. Clair v. Cox, 106 U.S. 350 (1882) ........................ 23, 24, 31

VII

Cases—Continued:

Page

State ex rel. Pacific Mutual Life Ins. Co. v. Grimm,

143 S.W. 483 (Mo. 1911), overruled by State ex rel.

American Central Life Ins. Co. v. Landwehr,

300 S.W. 294 (Mo. 1927) ..................................................... 27

Tennessee Wine & Spirits Retailers Ass’n v.

Thomas, 139 S. Ct. 2449 (2019) ......................................... 19

Terral v. Burke Constr. Co., 257 U.S. 529 (1922) ............... 17

The Lafayette Ins. Co. v. French,

59 U.S. (18 How.) 404 (1856) .............................................. 23

The Trustees of Dartmouth Coll. v. Woodward,

17 U.S. (4 Wheat.) 518 (1819)............................................. 30

Torson v. Hyundai Oilbank Co., No. 21-cv-778,

2022 WL 79649 (S.D. Tex. Jan. 7, 2022) ........................... 12

Vasquez v. Hillary, 474 U.S. 254 (1986) .............................. 21

Western & Southern Life Ins. Co. v. State Board of

Equalization, 451 U.S. 648 (1981)..................................... 16

Western Union Telegraph Co. v. Kansas,

216 U.S. 1 (1910) ................................................................. 16

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980)........................................................ 10, 13

Constitution and statutes:

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) ................... 5, 21, 22

Art. IV:

§ 1 (Full Faith and Credit Clause) ........................... 11

§ 2, Cl. 1 (Privileges and Immunities Clause)......... 18

Amend. V .............................................................. 28, 31, 33

Amend XIV ............................................................. passim

§ 1 (Due Process Clause) ................................ 6, 10, 16

Federal Employers’ Liability Act, 45 U.S.C. 51-60 ............. 2

18 U.S.C. 2333(a) ............................................................. 32, 4a

VIII

Statutes—Continued:

Page

18 U.S.C. 2334(e) (Supp. I 2019) ................................ 1, 32, 4a

18 U.S.C. 2334(e)(1) (Supp. I 2019) ................................ 32, 4a

18 U.S.C. 2334(e)(3) (Supp. I 2019) ................................ 32, 6a

18 U.S.C. 2334(e)(5) (Supp. I 2019) ................................ 32, 7a

15 Pa. Cons. Stat. Ann. § 411(a) (2019) ........................ 2, 9, 1a

42 Pa. Cons. Stat. Ann. (2019):

§ 5301(a)(2) ................................................................. 14, 3a

§ 5301(a)(2)(i) ......................................................... 2, 14, 3a

§ 5301(a)(2)(i)-(ii) ....................................................... 15, 3a

Miscellaneous:

1 Joseph H. Beale, A Treatise on the Conflict of

Laws (1935) ......................................................................... 18

Ronald A. Brand, The 1999 Hague Preliminary

Draft Convention Text on Jurisdiction and

Judgments: A View from the United States,

in The Hague Preliminary Draft Convention

on Jurisdiction and Judgments

(Fausto Pocar & Constanza Honorati eds. 2005) ............ 12

Friedrich K. Juenger, The American Law

of General Jurisdiction, 2001 U. Chi. Legal F. 141 .......... 6

Edward Quinton Keasbey, Jurisdiction over Foreign

Corporations, 12 Harv. L. Rev. 1 (1898) .......................... 28

Philip B. Kurland, The Supreme Court, the Due

Process Clause and the In Personam Jurisdiction

of State Courts, 25 U. Chi. L. Rev. 569 (1958) ........... 19, 23

Restatement (First) of Conflict of Laws (1934) ................. 18

Restatement (First) of Judgments (1942) .......................... 18

Austin W. Scott, Jurisdiction over Nonresidents

Doing Business Within a State, 32 Harv. L. Rev.

871 (1919) ............................................................................. 26

6 Seymour D. Thompson, Commentaries on the Law

of Private Corporations (1896) ......................................... 28

In the Supreme Court of the United States

No. 21-1168

ROBERT MALLORY, PETITIONER

NORFOLK SOUTHERN RAILWAY CO.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether a state

court may exercise general personal jurisdiction based

on a corporation’s registration to do business in the

State. The United States has a substantial interest in

the proper resolution of that question. Although this

case involves a domestic defendant and domestic conduct, the theory of jurisdiction asserted here would allow state courts to hear cases against foreign defendants based on foreign conduct, and thus could affect the

United States’ diplomatic relations and foreign trade.

In addition, petitioner invokes (Br. 46-47) a federal statute that treats specified defendants who have engaged

in certain activities as having consented to personal jurisdiction. See 18 U.S.C. 2334(e) (Supp. I 2019). The

United States has an interest in explaining how that

statute differs from the state law challenged here.

(1)

STATEMENT

1. Respondent is a railway company that is incorporated in Virginia and, when this suit began, maintained

its principal place of business in Norfolk, Virginia. Pet.

App. 12a. Petitioner, a citizen of Virginia, worked for

the railroad in Virginia and Ohio from 1988 to 2005.

Ibid. Petitioner claims that he developed cancer because of exposure to carcinogens in that work. Ibid.

Petitioner sued under the Federal Employers’ Liability Act, 45 U.S.C. 51-60, a federal statute that, among

other things, makes railroads liable to their employees

for negligence. Pet. App. 12a. Even though petitioner

was from Virginia, the railroad was from Virginia, and

the alleged torts occurred in Ohio and Virginia, petitioner sued in the Court of Common Pleas of Philadelphia County, Pennsylvania. Id. at 45a, 64a.

To establish personal jurisdiction, petitioner turned

to Pennsylvania’s registration and long-arm statutes.

The registration statute provides that an out-of-state

corporation “may not do business” in the State “until it

registers” with the State. 15 Pa. Cons. Stat. Ann.

§ 411(a) (2019). And the long-arm statute provides that

a state court may exercise “general personal jurisdiction” based on “qualification as a foreign corporation.”

42 id. § 5301(a)(2)(i). Qualification is equivalent to registration. Pet. App. 52a. Respondent has registered to

do business in Pennsylvania, where it maintains more

than 2000 miles of track. Id. at 32a. Petitioner argued

that, by registering, the railroad had consented to personal jurisdiction in the State. Id. at 22a.

2. The state trial court dismissed the suit for lack of

personal jurisdiction. Pet. App. 64a-82a. The court held

that a State may not require an out-of-state corporation

to submit to general jurisdiction as a condition of doing

business there. Id. at 70a-82a.

3. The state supreme court affirmed. Pet. App. 1a58a. It explained that, under this Court’s precedents, a

state court may exercise general jurisdiction over a corporation only if the corporation is “at home” there, but

Pennsylvania is not respondent’s home State. Id. at 45a.

The state supreme court then rejected petitioner’s

contention that respondent had consented to general jurisdiction in Pennsylvania by registering to do business

there. Pet. App. 55a. The court explained that registration is not “voluntary consent,” but rather “compelled submission to general jurisdiction by legislative

command.” Id. at 53a. The court further observed that

a State imposes an unconstitutional condition by requiring a corporation to consent to general jurisdiction as a

condition of doing business. Id. at 52a. The court added

that treating registration as valid consent would, as a

practical matter, nullify this Court’s cases limiting the

scope of general jurisdiction. Id. at 54a-55a.

Justice Mundy issued a concurring opinion. See Pet.

App. 57a-58a. She noted (ibid.) that the Federal Employers’ Liability Act could be read to make railroads

amenable to suit everywhere they operate, but this

Court had rejected that reading in BNSF Railway Co.

v. Tyrrell, 137 S. Ct. 1549 (2017).

SUMMARY OF ARGUMENT

A. Pennsylvania’s long-arm statute conflicts with

this Court’s precedents on personal jurisdiction. In a

series of recent cases, the Court has held that a corporation is subject to general jurisdiction only in its home

States—for example, in its State of incorporation and in

the State where it has its principal place of business.

Yet Pennsylvania’s long-arm statute allows state courts

to exercise general jurisdiction over a corporation that

has simply registered to do business in the State and is

not at home there.

Pennsylvania’s jurisdictional regime also violates the

principles underlying this Court’s precedents on personal jurisdiction. It subverts interstate federalism by

reaching beyond Pennsylvania’s borders and allowing

state courts to hear cases in which Pennsylvania has no

legitimate interest. It poses risks to international comity by allowing state courts to hear cases against foreign

defendants arising out of occurrences in foreign countries. It imposes unfair burdens on defendants. And it

serves no legitimate countervailing interest of the forum State or of plaintiffs.

Invoking the label “consent” rather than “general jurisdiction” does not render Pennsylvania’s long-arm

statute constitutional. The statute by its terms treats

registration as a basis for exercising “general personal

jurisdiction,” not as a form of consent. In any event,

consent statutes must comply with principles of fairness

and interstate federalism, and Pennsylvania’s long-arm

statute does not do so. And under the unconstitutionalconditions doctrine, a State may not require a corporation to consent to general jurisdiction as a condition of

doing business in the State.

B. Petitioner’s arguments lack merit. Petitioner

cites Pennsylvania Fire Insurance Co. v. Gold Issue

Mining & Milling Co., 243 U.S. 93 (1917), where this

Court held that a State could require an out-of-state

corporation to submit to all-purpose jurisdiction as a

condition of doing business in the State. That decision

rested on two premises: (1) a State may exclude out-ofstate corporations and (2) the power to exclude out-ofstate corporations includes the lesser power to require

them to give up constitutional rights as a condition of

entering the State. But the Court has long since repudiated each of those premises. Modern dormant Commerce Clause cases establish that States generally lack

the power to exclude out-of-state corporations, and

modern unconstitutional-conditions cases establish that

the greater power to withhold a benefit does not include

the lesser power to attach unconstitutional conditions.

More broadly, the Court decided Pennsylvania Fire

under the territorial framework of Pennoyer v. Neff, 95

U.S. 714 (1878). But the Court abandoned that framework in International Shoe Co. v. Washington, 326 U.S.

310 (1945). And the Court has repeatedly refused to accord significant precedential weight to cases decided

under the old framework.

Petitioner also contends that, in the 19th century,

States enacted laws requiring out-of-state actors to consent to suit in the State as a condition of engaging in

business there. But courts traditionally applied those

consent laws only to permit claims arising out of business conducted within the State or claims that otherwise

had some connection to the State. Unlike Pennsylvania’s

statutes, those laws did not enable state courts to hear

claims that had nothing to do with the forum State.

C. This case concerns only the Fourteenth Amendment’s limits on state courts’ general jurisdiction. This

Court need not consider whether similar limits would

constrain federal jurisdictional statutes or whether a

State may require corporations to consent to suit on

claims connected with the State in order to do business

there. And the only federal jurisdictional statute that

petitioner invokes differs significantly from Pennsylvania’s long-arm statute.

ARGUMENT

A. A State Court May Not Exercise General Jurisdiction

Based Solely On Registration To Do Business

A state court violates the Due Process Clause of the

Fourteenth Amendment by subjecting a defendant to

judgment without personal jurisdiction. See Ford Motor Co. v. Montana Eighth Judicial District Court, 141

S. Ct. 1017, 1024 (2021). In International Shoe Co. v.

Washington, 326 U.S. 310 (1945), this Court explained

that a state court’s exercise of personal jurisdiction

must be consistent with “ ‘traditional notions of fair play

and substantial justice’ ” and must be “reasonable, in

the context of our federal system of government.” Id.

at 316-317 (citation omitted).

Since International Shoe, this Court has recognized

two main types of personal jurisdiction: general (or allpurpose) and specific (or case-linked) jurisdiction. See

Ford, 141 S. Ct. at 1024. A court with general jurisdiction may hear any and all claims against a defendant.

See ibid. In contrast, a court with specific jurisdiction

may hear only claims that arise out of or relate to the

defendant’s contacts with the forum, and that accordingly have a link to the forum. See id. at 1025. *

* The terms “general” and “specific” jurisdiction date from the

1960s, but the concepts go back to the Romans. See Friedrich K.

Juenger, The American Law of General Jurisdiction, 2001 U. Chi.

Legal F. 141, 142. “Justinian’s Corpus iuris civilis distinguished

between actions brought in the defendant’s domicile, where he was

amenable to jurisdiction for any cause of action, and those against

nonresidents on, for example, contracts made or to be performed

there. In the latter case, the forum’s power to adjudicate was limited to causes of action arising from the contractual relationship.”

Id. at 143 (footnote omitted).

A state court may not exercise general jurisdiction

based solely on a corporation’s registration to do business in the forum. Such an exercise of jurisdiction conflicts both with this Court’s precedents on personal jurisdiction and with the principles underlying those precedents. And invoking the label “consent” rather than

“general jurisdiction” does not render such an exercise

of jurisdiction any more constitutional.

1. General jurisdiction based on registration violates

this Court’s precedents

a. Specific jurisdiction is the centerpiece of this

Court’s modern doctrine on personal jurisdiction, with

general jurisdiction occupying “a less dominant place.”

Daimler AG v. Bauman, 571 U.S. 117, 133 (2014). Because general jurisdiction allows a State to hear any

claims against a defendant, even claims with no link to

that State, its exercise can intrude on the sovereignty

of other States and other countries. See id. at 140-142.

General jurisdiction can also impose severe burdens on

defendants. See id. at 139. And the Court has found

little practical justification for giving general jurisdiction broad scope because specific jurisdiction already

protects the interests of the forum State and the plaintiff. See id. at 132-133 nn.9-10. “General jurisdiction

exists as an imperfect safety valve that sometimes allows plaintiffs access to a reasonable forum in cases

when specific jurisdiction would deny it.” Id. at 133 n.9

(brackets and citation omitted).

For those reasons, this Court has repeatedly held

that defendants are subject to general jurisdiction only

in their home States. See Daimler, 571 U.S. at 137. As

a general rule, an individual’s home is his domicile, and

a corporation’s homes are its place of incorporation and

principal place of business. See ibid.

For example, in Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915 (2011), this Court held that

a North Carolina court lacked general jurisdiction over

foreign tire companies in a case arising out of a bus accident in France. Id. at 918-920. The Court rejected

the “sprawling” theory that a “substantial manufacturer or seller of goods” is subject to general jurisdiction “wherever its products are distributed.” Id. at 929.

Similarly, in Daimler AG v. Bauman, supra, this

Court held that a court in California lacked general jurisdiction over a German car company in a case involving alleged wrongdoing in Argentina against Argentinian plaintiffs. See 571 U.S. at 120-122. The Court rejected the “exorbitant” and “unacceptably grasping”

theory that a court may exercise general jurisdiction

over any defendant that does “ ‘substantial, continuous,

and systematic’ ” business in the forum. Id. at 138-139

(citation omitted).

More recently, in BNSF Railway Co. v. Tyrrell, 137

S. Ct. 1549 (2017), this Court held that a Montana court

lacked general jurisdiction in a suit brought by an outof-state plaintiff against an out-of-state railroad based

on out-of-state injuries. Id. at 1555. The railroad had

more than 2000 miles of track and more than 2000 workers in Montana, but those activities did not entitle Montana’s courts to exercise general jurisdiction on claims

that had nothing to do with the State. Id. at 1559.

The legal principle on which those decisions rest—a

defendant’s general business activities in the forum do

not entitle state courts to hear claims unrelated to the

forum—transcends general-jurisdiction doctrine. This

Court has adhered to the same principle in its cases on

specific jurisdiction. Thus, in Bristol-Myers Squibb Co.

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

that a California court lacked specific jurisdiction as to

out-of-state claims brought by out-of-state plaintiffs

against an out-of-state defendant—even though the defendant had extensive business ties to California. Id. at

1777-1782. And in Ford Motor Co. v. Montana Eighth

Judicial District Court, supra, the Court rejected the

view that a car company’s extensive business activities

in a State would enable state courts to exercise specific

jurisdiction as to “any claim, no matter how unrelated

to the State.” 141 S. Ct. at 1027 n.3.

b. Pennsylvania’s long-arm statute produces the

same result that this Court rejected in Goodyear,

Daimler, BNSF, Bristol-Myers, and Ford: It allows

state courts to hear claims that have nothing to do with

the State simply because the defendant does some business in the forum. Pennsylvania does not achieve that

result in one step; it does not exercise general jurisdiction based on the defendant’s business activity as such.

Pennsylvania instead achieves that result in two steps.

It first requires any company that does business in the

State to register, and it then treats that compelled registration as a basis for general jurisdiction.

Pennsylvania law thus goes further than the theories

rejected in this Court’s recent decisions. Those decisions establish that even a “substantial, continuous, and

systematic course of business” in the forum State does

not justify jurisdiction on claims unrelated to the State.

Daimler, 571 U.S. at 138 (citation omitted). But a company must register to do any business in Pennsylvania,

even if the business is not substantial. See 15 Pa. Cons.

Stat. Ann. § 411(a) (2019). Even a single office can trigger the registration statute—and with it, the all-purpose

jurisdiction of Pennsylvania’s courts. See Hoffman

Constr. Co. v. Erwin, 200 A. 579, 580 (Pa. 1938).

Petitioner’s logic would allow Pennsylvania to go further still. Consider a hypothetical that this Court distinguished in Ford: “A retired guy in a small town in

Maine carves decoys and uses a site on the Internet to

sell them.” 141 S. Ct. at 1029 n.4 (brackets, citations,

and internal quotation marks omitted). Petitioner’s

theory would seemingly allow any State to which the

seller ships his decoys to exercise unlimited personal jurisdiction over him. The State need only require sellers

to register before shipping products to the State and

then treat registration as a basis for all-purpose jurisdiction over claims wholly unrelated to those sales.

The fact that Pennsylvania’s long-arm statute

achieves its result in two steps rather than one does not

make it constitutional. “The Constitution deals with

substance, not shadows.” Cummings v. Missouri, 4

Wall. 277, 325 (1867). There is no substantive difference

between (1) a state law that subjects every corporation

that does business in the State to general jurisdiction

and (2) a state law that requires every corporation that

does business in the State to register, and then treats

that compulsory registration as a basis for exercising

general jurisdiction. If the first violates the Due Process Clause, then so does the second.

2. General jurisdiction based on registration violates

the principles underlying this Court’s precedents on

personal jurisdiction

a. Limits on the personal jurisdiction of state courts

protect the States’ “status as coequal sovereigns in a

federal system.” World-Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 292 (1980). Each State may

hear cases that are brought against its residents or

arise out of activities within its territory. But when

States reach beyond their borders and seize cases that

concern only other States, they threaten to “upset the

federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by

other States.” J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) (plurality opinion).

Pennsylvania’s jurisdictional regime defies those

principles of interstate federalism. Pennsylvania does

not treat registration as a basis for hearing claims that

concern Pennsylvania. Rather, it treats registration as

a basis for hearing cases in which it has no legitimate

interest. This case proves the point. The plaintiff was

from Virginia, the defendant was from Virginia, and the

underlying conduct occurred in Virginia and Ohio. See

p. 1, supra. The case indisputably has “no connection

whatsoever” to Pennsylvania. Pet. App. 45a. Yet Pennsylvania’s long-arm statute would allow petitioner to

sideline Virginia and Ohio, bring the case in Pennsylvania’s courts, and (by virtue of the Full Faith and Credit

Clause) compel Virginia and Ohio to abide by Pennsylvania’s decision. See U.S. Const. Art. IV, § 1.

b. By confining each State to its territory, limits on

the personal jurisdiction of state courts also promote international comity. See Daimler, 571 U.S. at 141. Foreign countries have objected to our state courts’ expansive assertions of personal jurisdiction against foreign

defendants in cases that concern foreign activities. See

id. at 141-142. Those objections have impeded the negotiation of international conventions on the reciprocal

recognition and enforcement of judgments. See ibid. In

one negotiation in the 1990s, for example, “[m]ost delegations focused on jurisdictional rules they believed

went too far, were ‘exorbitant,’ and thus should be

placed on the prohibited list”; general jurisdiction

based on doing business in the forum was “quickly voted

onto that list.” Ronald A. Brand, The 1999 Hague Preliminary Draft Convention Text on Jurisdiction and

Judgments: A View from the United States, in The

Hague Preliminary Draft Convention on Jurisdiction

and Judgments 12 (Fausto Pocar & Constanza Honorati eds., 2005).

By recreating, under a new name, the sprawling view

of general jurisdiction rejected in Daimler, petitioner’s

theory poses the same “risks to international comity.”

571 U.S. at 141. Like the view of general jurisdiction

rejected in Daimler, Pennsylvania law would enable a

state court to hear a case against a foreign defendant

based on foreign conduct simply because the defendant

does unrelated business (and has registered to do that

unrelated business) in the forum. For example, suppose

a car made by a German manufacturer gets into an accident in Poland, injuring Polish plaintiffs. See Daimler, 571 U.S. at 127 n.5. Pennsylvania’s long-arm statute

would allow state courts to hear a case about that accident, so long as the German car manufacturer does

business (and so must register to do business) in Pennsylvania.

That concern is not merely hypothetical. Plaintiffs

have recently invoked registration as a basis for our

courts to exercise general jurisdiction over foreign defendants. See, e.g., AM Trust v. UBS AG, 681 Fed.

Appx. 587, 588-589 (9th Cir. 2017); Torson v. Hyundai

Oilbank Co., No. 21-cv-778, 2022 WL 79649, at *3 (S.D.

Tex. Jan. 7, 2022); Diab v. British Airways, PLC, No.

20-cv-3744, 2020 WL 6870607, at *4-*5 (E.D. Pa. Nov.

23, 2020) (finding general jurisdiction under Pennsylvania’s statute).

c. The Fourteenth Amendment’s limits on state

courts’ personal jurisdiction also reflect the need to en-

sure fairness to defendants. See Ford, 141 S. Ct. at

1025. But Pennsylvania’s long-arm statute does not

treat defendants fairly. The statute’s expansive assertion of general jurisdiction impairs defendants’ ability

“to structure their primary conduct with some minimum

assurance as to where that conduct will and will not render them liable to suit.” Daimler, 571 U.S. at 139 (citation omitted). It also exposes defendants to forumshopping—to being sued in Pennsylvania despite the

absence of any link between a case and the State, simply

because the plaintiff considers that State a friendly forum. And while large railroads might suffer little inconvenience from litigating in Pennsylvania, petitioner’s

theory extends to any small enterprise that must register in Pennsylvania because it does any business there.

In any event, this Court has explained that, even in

the absence of any unfairness, principles of interstate

federalism alone can preclude a state court’s exercise of

personal jurisdiction. See Bristol-Myers, 137 S. Ct. at

1780; Volkswagen, 444 U.S. at 293-294; Hanson v.

Denckla, 357 U.S. 235, 251 (1958). So even if exercising

registration-based jurisdiction were thought to be fair

to especially “large corporations” like respondent, Pet.

Br. 47, it would still violate the Constitution.

d. Finally, the rules of personal jurisdiction also account for the legitimate interests of the forum State and

the plaintiff. See Ford, 141 S. Ct. at 1029. But no such

justifying interest exists here. A State has little legitimate interest in hearing a case brought by an out-ofstate plaintiff against an out-of-state defendant based

on out-of-state conduct. And a plaintiff has little legitimate interest in suing in a forum that is neither the defendant’s home, nor the plaintiff ’s home, nor the location of the conduct or injuries that prompted the suit.

3. Registration to do business does not constitute valid

consent to general jurisdiction

A state court may exercise personal jurisdiction with

the defendant’s consent, even if it would have lacked the

power to proceed without that consent. See Insurance

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

456 U.S. 694, 703 (1982). And a State may require a

party to consent to suit as a condition of engaging in an

activity, or deem the party to have consented by engaging in that activity. See id. at 704. But Pennsylvania’s

long-arm statute is not a valid consent statute.

a. As a threshold matter, Pennsylvania does not

even treat registration as consent—reinforcing the reality that compulsory registration requirements do not

function as a form of actual consent. The Pennsylvania

long-arm statute provides that each of the following

provides a basis for exercising “general personal jurisdiction” over a corporation:

(i) Incorporation under or qualification as a foreign corporation under the laws of this Commonwealth.

(ii) Consent, to the extent authorized by the consent.

(iii) The carrying on of a continuous and systematic part of its general business within the Commonwealth.

42 Pa. Cons. Stat. Ann. § 5301(a)(2) (2019). As the statutory text shows, Pennsylvania treats “qualification as

a foreign corporation” the same way it treats “[i]ncorporation”—i.e., as a substantive basis for exercising

“general personal jurisdiction.” Id. § 5301(a)(2)(i). That

the long-arm statute itself lists “qualification as a foreign corporation” separately from “[c]onsent” demon-

strates that registration cannot be understood as a species of consent. Id. § 5301(a)(2)(i)-(ii).

b. A State in any event may not require a company

to consent to general jurisdiction in order to do business

there. A state court’s exercise of personal jurisdiction

must comport with “ ‘traditional notions of fair play and

substantial justice’ ” and must be “reasonable, in the

context of our federal system.” International Shoe, 326

U.S. at 316-317 (citation omitted). Those requirements

apply to state consent statutes no less than they apply

to other jurisdictional statutes. See Insurance Corp.,

456 U.S. at 703 (considering “traditional notions of fair

play and substantial justice” in the context of consent)

(citations omitted); Burger King Corp. v. Rudzewicz,

471 U.S. 462, 472 n.14 (1985) (explaining that a forumselection clause does not provide valid consent if it is

“unreasonable and unjust”) (citation omitted).

Pennsylvania’s long-arm statute does not comply

with those standards. As discussed above, it is neither

fair nor reasonable in our federal system for a State to

exercise unlimited jurisdiction simply because the defendant does business (and so must register to do that

business) in the forum. See pp. 10-13, supra.

c. A state law requiring a company to consent to

general jurisdiction to operate in the State would also

violate the unconstitutional-conditions doctrine—a general principle of constitutional law that limits a State’s

power to require a person to give up a constitutional

right in order to receive a benefit. See Koontz v. St.

Johns River Water Management District, 570 U.S. 595,

604 (2013). Applying that doctrine, this Court has long

held that a State generally may not require a company,

as a condition of doing business, “to surrender a right

and privilege secured to it by the Constitution and laws

of the United States.” Southern Pacific Co. v. Denton,

146 U.S. 202, 207 (1892). Any waiver or consent secured

through such a condition has “no validity or effect.”

Ibid. The Court has applied that principle in a variety

of cases and to a variety of rights. See 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484, 513 (1996) (opinion

of Stevens, J.) (free speech); Western & Southern Life

Ins. Co. v. State Board of Equalization, 451 U.S. 648,

656-668 (1981) (equal protection); Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 599 (1926)

(due process); Missouri ex rel. The Burnes National

Bank of St. Joseph v. Duncan, 265 U.S. 17, 24-25 (1924)

(federal statutory rights).

In particular, this Court has applied that principle in

the context of territorial limits on state power. The Due

Process Clause limits each State’s power to regulate

conduct and to tax property in other States. See North

Carolina Department of Revenue v. The Kimberly Rice

Kaestner 1992 Family Trust, 139 S. Ct. 2213, 2220

(2019); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307-313

(1981) (plurality opinion). The Court has held that a

State may not evade those limits by requiring companies, as a condition of operating in the State, to consent

to the regulation of activities or the taxation of property

in other States. See Fidelity & Deposit Co. v. Tafoya,

270 U.S. 426, 435 (1926); Western Union Telegraph Co.

v. Kansas, 216 U.S. 1, 33-48 (1910).

No good reason exists to treat due process limits on

personal jurisdiction any differently. “[T]hose who live

or operate primarily outside a State have a due process

right not to be subjected to judgment in its courts as a

general matter.” Nicastro, 564 U.S. at 881 (plurality

opinion). Demanding that a company give up that right

violates the general rule, “well settled in the jurispru-

dence of this [C]ourt, that the right to do business cannot be made to depend upon the surrender of a right

created and guaranteed by the Federal Constitution.”

Frost, 271 U.S. at 596 (citation omitted).

To be sure, the unconstitutional-conditions doctrine

is not absolute. A State may, in some circumstances,

seek the surrender of a right if it has a legitimate reason

for doing so. See Koontz, 570 U.S. at 605-606. But as

discussed above, no such reason exists here. A State

has no legitimate interest in hearing suits that relate

only to other States. See p. 13, supra.

Petitioner argues (Br. 50) that the unconstitutionalconditions doctrine does not apply to waivable litigation

rights. But this Court has applied the doctrine to procedural rights, such as the right to remove cases from

state to federal court. See Terral v. Burke Constr. Co.,

257 U.S. 529, 532-533 (1922). On petitioner’s contrary

view, a State could require a person to give up his procedural rights to confrontation, compulsory process,

and trial by jury as a condition of doing business in the

State. Petitioner also argues (Br. 49) that in Insurance

Co. v. Morse, 20 Wall. 445 (1874), this Court suggested

that the unconstitutional-conditions doctrine does not

apply to laws requiring consent to personal jurisdiction.

That is incorrect; in fact, the Court in Morse stated that

conditions imposed in such consent statutes must comport with “the Constitution and laws of the United

States” and “those rules of public law which secure the

jurisdiction and authority of each State from encroachment by others.” Id. at 457.

B. Petitioner’s Arguments Lack Merit

Petitioner advances a series of contrary arguments,

but those arguments lack merit.

1. Pennsylvania Fire does not justify the exercise of

general jurisdiction based on registration

Petitioner heavily relies (Br. 28-34) on this Court’s

decision in Pennsylvania Fire Insurance Co. v. Gold

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

Missouri had required an out-of-state insurer to consent to personal jurisdiction as a condition of getting a

license to do business in the State. Id. at 94. In an opinion by Justice Holmes, the Court held that Missouri

could rely on that consent to hear a suit brought by an

out-of-state plaintiff against the out-of-state insurer

concerning out-of-state property. Id. at 94-95.

Petitioner’s reliance on Pennsylvania Fire is misplaced. That decision has been superseded by more recent precedents—many times over.

a. Pennsylvania Fire contained little reasoning, but

the Court explained in a later opinion by Justice Holmes

that it rested on two premises: First, that the State has

the power to “exclude foreign corporations altogether,”

Flexner v. Farson, 248 U.S. 289, 293 (1919), and second,

that the power to exclude corporations altogether carries with it the lesser power to require them to consent

to suit “as a condition of letting them in,” ibid. That

rationale explains why Pennsylvania Fire only ever applied to corporations: Because the Privileges and Immunities Clause of Article IV deprived States of the

greater power to exclude nonresident individuals,

States also lacked the lesser power to require those individuals to consent to unlimited personal jurisdiction

as a condition of allowing them in. See Hess v. Pawloski, 274 U.S. 352, 355 (1927); Restatement (First) of

Judgments § 22, cmt. e (1942); 1 Joseph H. Beale, A

Treatise on the Conflict of Laws 363 (1935); Restatement (First) of Conflict of Laws § 84, cmt. b (1934).

That rationale also reflects Justice Holmes’s general

views about unconstitutional conditions. See McAuliffe

v. City of New Bedford, 29 N.E. 517, 517 (Mass. 1892)

(“The petitioner may have a constitutional right to talk

politics, but he has no constitutional right to be a policeman.”).

Since Pennsylvania Fire, however, this Court has

repudiated both premises underlying that special rule

for corporate defendants. First, the Court has rejected

the notion that a State has the power to “exclude foreign

corporations altogether.” Flexner, 248 U.S. at 293. The

Court’s modern cases treat carrying on interstate commerce as a “right” guaranteed by the Constitution, “not

a franchise or privilege granted by the State.” Dennis

v. Higgins, 498 U.S. 439, 448 (1991) (citation omitted).

A State thus generally lacks the power to exclude outof-state competitors from its markets. See Tennessee

Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct.

2449, 2459 (2019). That makes Pennsylvania Fire inapplicable on its own terms. “It would seem to follow that

if the state’s power to exact consent to be sued depended on its power to exclude, and it could not exclude,

it could not exact such consent.” Philip B. Kurland, The

Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts, 25 U. Chi. L. Rev.

569, 581 (1958).

Second, this Court also has abandoned Justice

Holmes’s view that the power to withhold a benefit includes the unlimited power to attach otherwise unconstitutional conditions. The Court has held in a variety

of contexts that the Constitution limits the government’s ability to require a person to give up a constitutional right to receive a benefit. See, e.g., Carson v.

Makin, 142 S. Ct. 1987, 1996 (2022); Koontz, 570 U.S. at

604. More specifically, as discussed above, it is now

“well settled” that “the right to do business cannot be

made to depend upon the surrender of a right created

and guaranteed by the Federal Constitution.” Frost,

271 U.S. at 596 (citation omitted); see pp. 15-16, supra.

b. If anything remained of Pennsylvania Fire, it

was fully extinguished by International Shoe and its

follow-on cases. Pennsylvania Fire applied the territorial rules of Pennoyer v. Neff, 95 U.S. 714 (1878). But

International Shoe discarded those rules and held instead that state courts’ assertions of personal jurisdiction must comport with “ ‘traditional notions of fair play

and substantial justice’ ” and must be “reasonable, in

the context of our federal system.” 326 U.S. at 316-317

(citation omitted). This Court has since explained that

“all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.” Rush v. Savchuk, 444

U.S. 320, 327 (1980) (quoting Shaffer v. Heitner, 433

U.S. 186, 212 (1977)). The Court added: “It would not

be fruitful for us to re-examine the facts of cases decided on the rationales of Pennoyer * * * to determine

whether jurisdiction might have been sustained under

the standard we adopt today. To the extent that prior

decisions are inconsistent with this standard, they are

overruled.” Shaffer, 433 U.S. at 212 n.39.

More recently, this Court has declined to accord significant weight to decisions that predate International

Shoe and conflict with its standards. In Daimler, the

Court dismissed a century-old general-jurisdiction

precedent in a footnote, observing that cases “decided

in the era dominated by Pennoyer’s territorial thinking

* * * should not attract heavy reliance today.” 571 U.S.

at 138 n.18 (discussing Barrow S.S. Co. v. Kane, 170

U.S. 100 (1898)). And in BNSF, the Court waved aside

several cases that predated International Shoe, observing that Daimler had already warned “against reliance

on cases ‘decided in the era dominated by’ the ‘territorial thinking’ ” of Pennoyer. 137 S. Ct. at 1558 (citation

omitted).

c. Stare decisis is a “foundation stone of the rule of

law.” Allen v. Cooper, 140 S. Ct. 994, 1003 (2020) (citation omitted). This Court always “demand[s] a ‘special

justification,’ over and above the belief ‘that the precedent was wrongly decided,’ ” before reversing one of its

decisions. Ibid. That demanding standard “contributes

to the actual and perceived integrity of the judicial process,” Kimble v. Marvel Entertainment, LLC, 576 U.S.

446, 455 (2015) (citation omitted), and “permits society

to presume that bedrock principles are founded in the

law rather than in the proclivities of individuals,”

Vasquez v. Hillery, 474 U.S. 254, 265 (1986).

But resolving this case does not require this Court to

decide anew whether, under principles of stare decisis,

Pennsylvania Fire should now be overruled. As shown

above, more recent cases have already superseded

Pennsylvania Fire—and, accordingly, it is petitioner’s

position that is inconsistent with precedent.

In addition, in a line of cases that began before Pennsylvania Fire and continued after it, this Court held

that a State violates the dormant Commerce Clause by

requiring an out-of-state company to submit to personal

jurisdiction for out-of-state claims brought by out-ofstate plaintiffs. E.g., Davis v. Farmers Co-operative

Equity Co., 262 U.S. 312, 315 (1923); Sioux Remedy Co.

v. Cope, 235 U.S. 197, 203-204 (1914). The insurance

company in Pennsylvania Fire could not rely on those

Commerce Clause cases because of the then-prevailing

doctrine that insurance is not commerce. See Paul v.

Virginia, 75 U.S. 168, 183 (1869), overruled by United

States v. South-Eastern Underwriters Ass’n, 322 U.S.

533, 553 (1944). But railroads could and did invoke

Commerce Clause limits on personal jurisdiction. See

Michigan Central R.R. v. Mix, 278 U.S. 492, 495 (1929).

Petitioner gives no principled reason for exhuming

Pennsylvania Fire but not the contemporaneous Commerce Clause cases that might block this suit.

Affirming the state supreme court’s dismissal for

lack of personal jurisdiction here would simply “formalize what is evident”: Pennsylvania Fire “ ‘must be regarded as retaining no vitality.’ ” Herrera v. Wyoming,

139 S. Ct. 1686, 1697 (2019) (citation omitted). State jurisdictional regimes throughout the Nation already reflect that reality. Pennsylvania appears to be the only

State that expressly treats registration as a basis for

general jurisdiction, and its own supreme court has invalidated the application of its long-arm statute in this

context. See Pet. App. 40a-41a & n.17.

2. History does not justify the exercise of general jurisdiction based on registration

Petitioner also contends (Br. 11-28) that States in the

19th century required corporations, as a condition of doing business, to consent to suit on any and all claims.

That is incorrect. States traditionally required submission to jurisdiction on claims connected with the State,

not on claims (like petitioner’s) that concerned only

other States.

a. Under the territorial regime of Pennoyer, a state

court could exercise personal jurisdiction over a defendant only if (1) the defendant was physically present in

the forum when served with process or (2) the defendant had consented to suit. See 95 U.S. at 733. States

relied on the consent doctrine to hear cases involving

defendants who were absent from the forum: out-ofstate corporations that did business there, out-of-state

individuals who had entered into contracts there, and

(later) out-of-state drivers who caused car accidents

there. See Kurland, 25 U. Chi. L. Rev. at 578-579.

States either required parties to consent to suit before

engaging in those activities or deemed them to have

consented by engaging in those activities.

Nevertheless, this Court’s leading 19th-century case

applying the consent doctrine, St. Clair v. Cox, 106 U.S.

350 (1882), made clear that the States’ power to enact

consent statutes was subject to limits. For example, a

consent statute had to be “reasonable” and had to ensure that the defendant would receive “notice” of any

suit. Id. at 356. A consent statute also had to comport

with the “rules of public law which secure the jurisdiction and authority of each State from encroachment by

all others.” Ibid. (citation omitted).

One important limit on the consent doctrine was that

it generally applied only to claims that arose “out of the

business done within the state.” Kurland, 25 U. Chi. L.

Rev. at 583. Many of this Court’s decisions reflected

that limit:

• A State may require an out-of-state insurer that

makes contracts in the State to consent to service of

process “in suits founded on such contracts.” The

Lafayette Ins. Co. v. French, 18 How. 404, 408 (1856)

(emphasis added).

• “It would be a startling proposition if in all such

cases citizens of [a State] should be denied all remedy in her courts, for causes of action arising under

contracts and acts entered into or done within her

territory, and should be turned over to the courts

and laws of a sister State to seek redress.” Railroad

Co. v. Harris, 12 Wall. 65, 83 (1871) (emphasis added;

citation omitted).

• A State may “require a non-resident entering into a

partnership or association within [the State’s] limits,

or making contracts enforceable there,” to consent

to suit “in legal proceedings instituted with respect

to such partnership, association, or contracts.” Pennoyer, 95 U.S. at 735 (emphasis added).

• “The State may, therefore, impose as a condition

upon which a foreign corporation shall be permitted

to do business within her limits, that it shall stipulate

that in any litigation arising out of its transactions

in the State, it will accept as sufficient the service of

process on its agents.” St. Clair, 106 U.S. at 356 (emphasis added).

• A

corporation that operates in a State may be

deemed to have consented to suit “as to business

there transacted by it,” but not “as to business transacted in another State.” Old Wayne Mutual Life

Ass’n v. McDonough, 204 U.S. 8, 23 (1907).

• The “statutory consent of a foreign corporation to be

sued does not extend to causes of action arising in

other States.” Simon v. Southern Ry. Co., 236 U.S.

115, 130 (1915).

Nineteenth-century state courts, for their part, disagreed about whether the consent doctrine required the

claim to arise out of business done in the forum, or

whether it was enough if the claim was connected to the

forum in some other way. But even in the absence of

limiting language in the statutory text, many state supreme courts refused to apply consent statutes to

claims that had no connection at all to the forum.

For example, the Vermont Supreme Court refused

to apply a consent statute to “causes of action that accrued out of the state in favor of persons not citizens of

the state, against a corporation existing out of the

state.” Sawyer v. The North American Life Ins. Co., 46

Vt. 697, 706 (1874). The Georgia Supreme Court rejected a “wide construction” of its state statute, explaining that an out-of-state corporation with agents in Georgia could be sued in Georgia on “contracts made here by

agents in Georgia,” but not “on a contract or debt of any

sort”—lest a “debt created in England by [an] English

corporation” or a “debt made in China” prompt a suit in

Georgia. Bawknight v. Liverpool & London & Globe

Ins. Co., 55 Ga. 194, 196-197 (1875). The Alabama Supreme Court considered it “well settled” that “no action

in personam can be maintained against a foreign corporation, unless the contract sued on was made, or the injury complained of was suffered, in the State in which

the action is brought.” Central R.R. & Banking Co. v.

Carr, 76 Ala. 388, 393 (1884). Many other state supreme

courts agreed that jurisdiction over an out-of-state corporation generally does not extend to claims unrelated

to the forum. See, e.g., Morris v. Missouri Pacific Ry.

Co., 78 Tex. 17, 21 (1890); Berlin Iron Bridge Co. v. Norton, 17 A. 1079, 1079 (N.J. 1889); Peters v. Neely, 84

Tenn. 275, 281 (1886); Newell v. Great Western Ry. Co.,

19 Mich. 336, 345-346 (1869); Parke v. The Commonwealth Ins. Co., 44 Pa. 422, 422-423 (1863).

b. Petitioner identifies (Br. 15) “four categories” of

state statutes and judicial decisions that ostensibly support the exercise of personal jurisdiction in this case.

But two of those categories involve (ibid.) “claims

brought by residents of the State” and “claims arising

within the State.” They have no bearing on the question

presented here: whether a State may subject a corporation to personal jurisdiction on claims that have no

connection at all to the forum.

Nor does petitioner’s theory draw meaningful support from the evidence in the remaining two categories.

Petitioner relies (Br. 16, 19) on state consent statutes

that, on their face, drew no distinction between claims

arising in the State and claims arising elsewhere. But

as explained above, many courts refused to apply consent statutes to claims unrelated to the forum, even in

the absence of limiting language in the statutory text.

See pp. 24-25, supra. As one scholar summarized: “The

statutes relating to corporations frequently make no

distinction between causes of action arising within the

state and those arising elsewhere, and although * * *

these statutes have been held invalid as to causes of action arising outside the state, they are upheld as to

causes of action arising within the state.” Austin W.

Scott, Jurisdiction over Nonresidents Doing Business

Within a State, 32 Harv. L. Rev. 871, 890 (1919).

Petitioner also cites (Br. 16-20) seven cases in which

he asserts state courts relied on consent laws to hear

claims unrelated to the forum. But in two of those cases,

the claim did relate to the forum. See Littlejohn v.

Southern Ry. Co., 22 S.E. 761, 761 (S.C. 1895) (suit

based on injuries suffered in the forum); Farrel v. Oregon Gold-Mining Co., 49 P. 876, 877-878 (Or. 1897) (suit

based on services rendered in the forum). Three of the

cases involved garnishment proceedings, which were

subject to special jurisdictional rules because they were

viewed as in rem actions. See Mooney v. Buford &

George Manufacturing Co., 72 F. 32, 41 (7th Cir. 1896);

Barr v. King, 96 Pa. 485, 488 (1880); Fithian, Jones &

Co. v. New York & Erie R.R. Co., 31 Pa. 114, 117 (1857);

see also Shaffer, 433 U.S. at 200, 211 n.38 (discussing

traditional rules for garnishment proceedings). And

one case came more than four decades after the Fourteenth Amendment, elicited a dissent, and was soon

overruled. See State ex rel. Pacific Mutual Life Ins.

Co. v. Grimm, 143 S.W. 483, 492-493 (Mo. 1911) (in

banc), overruled by State ex rel. American Central Life

Ins. Co. v. Landwehr, 300 S.W. 294, 297-298 (Mo. 1927)

(in banc); id. at 499-500 (Graves, J., dissenting).

That leaves only a single case supporting petitioner’s

view. See Johnston v. Trade Ins. Co., 132 Mass. 432,

434 (1882). And the court that decided that case, the

Massachusetts Supreme Judicial Court, had adopted

the opposite position in the year that Massachusetts actually ratified the Fourteenth Amendment. See Smith

v. Mutual Life Ins. Co., 96 Mass. 336, 341-342 (1867)

(refusing to apply a consent statute to a claim brought

by an out-of-state plaintiff against an out-of-state defendant concerning an out-of-state contract because the

claim was “not within the sovereign power of the state,”

“particularly under our federal system of government”); id. at 343 (noting the court was not addressing

the limits of judicial power “in the case of a contract by

a foreign corporation made within this state, with a citizen thereof, and insuring a life or property therein”).

Petitioner’s one viable 19th-century example is outweighed by the decisions from eight other state supreme courts—and multiple decisions from this Court

—discussed above. See pp. 23-25, supra.

Petitioner also invokes (Br. 25) two 19th-century

commentators. But one of them explained that most

state courts refused to apply their consent statutes to

cases unrelated to the State, that Massachusetts had

adopted a distinctive approach, and that even the Mas-

sachusetts decisions were inconsistent. See 6 Seymour

D. Thompson, Commentaries on the Law of Private

Corporations §§ 8003-8004, at 6378-6379 & n.4 (1896).

The other commentator also recognized that, as of 1898,

the courts had divided on whether such statutes could

reach causes of action arising out of state. Edward

Quinton Keasbey, Jurisdiction over Foreign Corporations, 12 Harv. L. Rev. 1, 5-6 (1898). Without reaching

his own “definite conclusions,” he offered as a potential

argument the same syllogism eventually used in Pennsylvania Fire and later repudiated by this Court:

“[S]ince a State has a right to exclude a foreign corporation altogether, it may impose conditions under which

alone it may come within the State.” Id. at 18, 22.

c. Petitioner separately relies (Br. 24-25) on a 19thcentury federal statute that made corporations doing

business in the District of Columbia amenable to suit

there. As noted above, however, courts traditionally

read state consent statutes to apply only to claims related to the forum, even when the statutory text lacked

such limiting language. See pp. 24-25, supra. Petitioner provides no reason to think that the federal statute was applied any differently. Petitioner cites (Br. 24)

one case in which he says this Court applied the federal

statute, but that case involved a claim arising out of activities in the District of Columbia. See Harris, 12 Wall.

at 77 (suit by injured train passenger who had bought

his ticket in “the city of Washington”).

In any event, Fifth Amendment limits on personal

jurisdiction in federal courts differ from Fourteenth

Amendment limits on personal jurisdiction in state

courts. See Nicastro, 564 U.S. at 884 (plurality opinion).

Given Congress’s authority to legislate for the whole

Nation and its constitutional powers in the field of for-

eign affairs, principles of interstate federalism and international comity do not constrain Congress in the

same way that they constrain state legislatures. That is

so even when Congress legislates for the District of

Columbia, for Congress may exercise “this particular

power, like all its other powers, in its high character,

as the legislature of the Union.” Cohens v. Virginia,

6 Wheat. 264, 429 (1821). Thus, even if the 1867 federal

statute had been applied more broadly than the statelaw provisions of that era, that would say little about the

validity of Pennsylvania’s long-arm statute.

3. General jurisdiction based on registration is not

analogous to transient jurisdiction over individuals

Petitioner additionally invokes (Br. 34-48) Burnham

v. Superior Court, 495 U.S. 604 (1990), where this Court

upheld a state court’s exercise of transient jurisdiction

(i.e., jurisdiction over an individual based on service of

process in the forum). But general jurisdiction based on

registration is not analogous to transient jurisdiction.

Although no opinion commanded a majority of the

Court in Burnham, all nine members relied, in whole or

in significant part, on the deeply rooted American tradition supporting transient jurisdiction over individuals. See 495 U.S. at 610-616 (opinion of Scalia, J.); id. at

628 (White, J., concurring in part and concurring in the

judgment); id. at 633-637 (Brennan, J., concurring in

the judgment); id. at 640 (Stevens, J., concurring in the

judgment). The lead opinion explained that many state

courts had invoked transient jurisdiction in the 19th and

20th centuries; that “not one American case from the

period” suggested that service of process in the forum

was insufficient to confer jurisdiction; that commentators were “seemingly unanimous on the rule”; and that

transient jurisdiction remained the practice of “all the

States and the Federal Government.” Id. at 613-615

(opinion of Scalia, J.).

No comparable tradition exists here. Many of this

Court’s cases from the 19th and early 20th centuries,

including Pennoyer itself, indicate that a State could require a non-individual defendant from elsewhere to consent to personal jurisdiction only on claims connected

with the State. See pp. 23-24, supra. State courts, too,

refused to apply consent statutes to claims that concerned only other States. See pp. 24-25, supra. And

whatever tradition once existed has died out: Pennsylvania appears to be the only State that expressly treats

registration as a basis for general jurisdiction. See Pet.

App. 40a-41a & n.17. This case is thus nothing like

Burnham.

Petitioner finds it anomalous (Br. 42-48) that a nonresident traveling through the forum is subject to personal jurisdiction on all claims, while a corporation doing business in the forum is subject to personal jurisdiction only on claims related to that business. But petitioner overlooks the conceptual, historical, and practical

explanations for that seeming anomaly. As a conceptual

matter, the foundation of transient jurisdiction is the

sovereign’s physical power to seize any individual who

is present in its lands and to compel that individual to

attend its courts. See Michigan Trust Co. v. Ferry, 228

U.S. 346, 353 (1913). That notion does not comfortably

carry over to a corporation, which is “an artificial being,

invisible, intangible, and existing only in contemplation

of law.” The Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). A corporation’s officers,

agents, and shareholders can travel from State to State,

but the corporation itself has no physical location. And

when 19th-century courts assigned the corporation it-

self a physical location, they generally held that it “must

dwell in the place of its creation,” unable to “migrate to

another sovereignty.” St. Clair, 106 U.S. at 354.

As a historical matter, rules of personal jurisdiction

for individuals grew out of English practice going back

to the 17th century. See Burnham, 495 U.S. at 611

(opinion of Scalia, J.). Rules for corporations, in contrast, developed in the United States in the 19th century. See St. Clair, 106 U.S. at 353-357. It should come

as no surprise that doctrines developed in this country

would be more sensitive to interstate federalism than

those inherited from England.

And as a practical matter, petitioner’s theory would

do far more damage to our federal system than does the

continuation of transient jurisdiction. An individual can

be in only one place at a time, and that place is most

often his home State. A corporation, in contrast, can

“be” everywhere at once if the presence of an agent suffices. Transient jurisdiction over individuals may on occasion allow a State to hear a case in which it lacks a

meaningful interest, but general jurisdiction based on

corporate registration would create an unprecedented

jurisdictional free-for-all.

C. This Court Need Not Address Circumstances Beyond A

State Court’s Exercise Of General Jurisdiction Based

On Registration

This case concerns the Fourteenth Amendment’s

limits on the personal jurisdiction of state courts, not

the Fifth Amendment’s limits on the personal jurisdiction of federal courts. The United States’ constitutional

powers and special competence in foreign affairs, as distinguished from the geographically cabined and mutually exclusive sovereignty of the several States, would

permit exercises of federal judicial power that have no

analogue at the state level. And because “the United

States is a distinct sovereign, a defendant may in principle be subject to the jurisdiction of the courts of the

United States but not of any particular State.” Nicastro, 564 U.S. at 884 (plurality opinion). As this Court

has done before, it should reserve the question whether

the Fourteenth Amendment’s limits on personal jurisdiction also apply in cases governed by the Fifth

Amendment. See Bristol-Myers, 137 S. Ct. at 1783-1784.

This case also concerns only general jurisdiction

(i.e., jurisdiction over claims irrespective of any connection with the forum). It presents no occasion to decide

whether States may adopt special statutes, whether labeled “consent” or otherwise, that enable state courts

to hear claims that are tied to the State but go beyond

this Court’s specific-jurisdiction doctrine. Cf. Kulko v.

Superior Court, 436 U.S. 84, 98 (1978) (“California has

not attempted to assert any particularized interest in

trying such cases in its courts by * * * enacting a special jurisdictional statute.”).

Because this case concerns only the Fourteenth

Amendment and only general jurisdiction, petitioner

errs in suggesting (Br. 46) that a ruling against him

would call into doubt the constitutionality of 18 U.S.C.

2334(e) (Supp. I 2019). That federal statute provides

that the Palestinian Authority, Palestine Liberation Organization, and affiliated or successor organizations are

deemed to have consented to suit in the United States

on claims by U.S. nationals arising from acts of international terrorism if those entities (1) make certain payments to terrorists or their families or (2) maintain or

establish offices or engage in certain other activities in

the United States. See 18 U.S.C. 2333(a); 18 U.S.C.

2334(e)(1), (3), and (5) (Supp. I 2019). That statute dif-

fers in significant ways from Pennsylvania’s long-arm

statute. It is governed by the Fifth Amendment, not the

Fourteenth; it concerns foreign affairs, a field in which

Congress is entitled to substantial deference; it applies

only to a narrow class of defendants and a well-defined

set of claims; it does not attach a condition to the right

to do business in a State; it raises no questions of interstate federalism; and it applies only to claims in which

the United States has a legitimate interest, not to claims

that concern only other sovereigns.

CONCLUSION

The judgment of the Supreme Court of Pennsylvania

should be affirmed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

VIVEK SURI

Assistant to the Solicitor

General

SHARON SWINGLE

JOSHUA M. KOPPEL

Attorneys

SEPTEMBER 2022

APPENDIX

15 Pa. Cons. Stat. Ann. § 411 provides:

Registration to do business in this Commonwealth

(a) Registration required.—Except as provided in

section 401 (relating to application of chapter) or subsection (g), a foreign filing association or foreign limited

liability partnership may not do business in this Commonwealth until it registers with the department under

this chapter.

(b) Penalty for failure to register.—A foreign filing

association or foreign limited liability partnership doing

business in this Commonwealth may not maintain an action or proceeding in this Commonwealth unless it is

registered to do business under this chapter.

eign limited liability partnership to register to do business in this Commonwealth does not impair the validity

of a contract or act of the foreign filing association or

foreign limited liability partnership or preclude it from

defending an action or proceeding in this Commonwealth.

(d) Limitations on liability preserved.—A limitation

on the liability of an interest holder or governor of a foreign filing association or of a partner of a foreign limited

liability partnership is not waived solely because the foreign filing association or foreign limited liability partnership does business in this Commonwealth without

registering.

(e) Governing law not affected.—Section 402 (relating to governing law) applies even if a foreign association fails to register under this chapter.

(1a)

(f ) Registered office.—Subject to section 109 (relat-

ing to name of commercial registered office provider in

lieu of registered address), every registered foreign association shall have, and continuously maintain, in this

Commonwealth a registered office, which may but need

not be the same as its place of business in this Commonwealth.

(g) Foreign insurance corporations.—A foreign insurance corporation is not required to register under

this chapter.

42 Pa. Cons. Stat. Ann. § 5301 provides:

Persons

(a) General rule.—The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or

his personal representative in the case of an individual,

and to enable such tribunals to render personal orders

against such person or representative:

(1)

Individuals.—

(i) Presence in this Commonwealth at the

time when process is served.

(ii) Domicile in this Commonwealth at the

time when process is served.

(iii) Consent, to the extent authorized by the

consent.

(2)

Corporations.—

(i) Incorporation under or qualification as a

foreign corporation under the laws of this Commonwealth.

(ii) Consent, to the extent authorized by the

consent.

(iii) The carrying on of a continuous and systematic part of its general business within this

Commonwealth.

(3) Partnerships, limited partnerships, partnership associations, professional associations, unincorporated associations and similar entities.—

(i) Formation under or qualification as a foreign entity under the laws of this Commonwealth.

(ii) Consent, to the extent authorized by the

consent.

(iii) The carrying on of a continuous and systematic part of its general business within this

Commonwealth.

(b) Scope of jurisdiction.—When jurisdiction over a

person is based upon this section any cause of action

may be asserted against him, whether or not arising

from acts enumerated in this section. Discontinuance

of the acts enumerated in subsection (a)(2)(i) and (iii)

and (3)(i) and (iii) shall not affect jurisdiction with respect to any act, transaction or omission occurring during the period such status existed.

18 U.S.C. 2333(a) provides:

Civil remedies

(a) ACTION AND JURISDICTION.—Any national of

the United States injured in his or her person, property,

or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue

therefor in any appropriate district court of the United

States and shall recover threefold the damages he or she

sustains and the cost of the suit, including attorney’s

fees.

18 U.S.C. 2334(e) (Supp. I 2019) provides:

Jurisdiction and venue

(e) CONSENT OF CERTAIN PARTIES TO PERSONAL

JURISDICTION.—

(1) IN GENERAL.—Except as provided in paragraph (2), for purposes of any civil action under section 2333 of this title, a defendant shall be deemed to

have consented to personal jurisdiction in such civil

action if, regardless of the date of the occurrence of

the act of international terrorism upon which such

civil action was filed, the defendant—

(A) after the date that is 120 days after the

date of the enactment of the Promoting Security

and Justice for Victims of Terrorism Act of 2019,

makes any payment, directly or indirectly—

(i) to any payee designated by any individual who, after being fairly tried or pleading

guilty, has been imprisoned for committing

any act of terrorism that injured or killed a na-

tional of the United States, if such payment is

made by reason of such imprisonment; or

(ii) to any family member of any individual,

following such individual’s death while committing an act of terrorism that injured or killed a

national of the United States, if such payment

is made by reason of the death of such individual; or

(B) after 15 days after the date of enactment

of the Promoting Security and Justice for Victims

of Terrorism Act of 2019—

(i) continues to maintain any office, headquarters, premises, or other facilities or establishments in the United States;

(ii) establishes or procures any office,

headquarters, premises, or other facilities or

establishments in the United States; or

(iii) conducts any activity while physically

present in the United States on behalf of the

Palestine Liberation Organization or the Palestinian Authority.

(2) APPLICABILITY.—Paragraph (1) shall not apply to any defendant who ceases to engage in the conduct described in paragraphs (1)(A) and (1)(B) for 5

consecutive calendar years. Except with respect to

payments described in paragraph (1)(A), no court

may consider the receipt of any assistance by a nongovernmental organization, whether direct or indirect, as a basis for consent to jurisdiction by a defendant.

(3)

EXCEPTION FOR CERTAIN ACTIVITIES AND

LOCATIONS .—In determining whether a defendant

shall be deemed to have consented to personal jurisdiction under paragraph (1)(B), no court may consider—

(A) any office, headquarters, premises, or

other facility or establishment used exclusively for

the purpose of conducting official business of the

United Nations;

(B) any activity undertaken exclusively for the

purpose of conducting official business of the

United Nations;

United States that the Secretary of State determines is in the national interest of the United

States if the Secretary reports to the appropriate

congressional committees annually on the use of

the authority under this subparagraph;

(D) any activity undertaken exclusively for the

purpose of meetings with officials of the United

States or other foreign governments, or participation in training and related activities funded or arranged by the United States Government;

(E) any activity related to legal representation—

(i) for matters related to activities described in this paragraph;

(ii) for the purpose of adjudicating or resolving claims filed in courts of the United

States; or

(iii) to comply with this subsection; or

(F) any personal or official activities conducted ancillary to activities listed under this paragraph.

(4) RULE OF CONSTRUCTION.—Notwithstanding

any other law (including any treaty), any office, headquarters, premises, or other facility or establishment

within the territory of the United States that is not

specifically exempted by paragraph (3)(A) shall be

considered to be in the United States for purposes of

paragraph (1)(B).

(5) DEFINED TERM.—In this subsection, the

term “defendant” means—

(A)

the Palestinian Authority;

(B)

the Palestine Liberation Organization;

successor to or affiliated with the Palestinian Authority or the Palestine Liberation Organization;

(D)

any organization or other entity that—

(i) is identified in subparagraph (A), (B),

or (C); and

(ii) self identifies as, holds itself out to be,

or carries out conduct in the name of, the “State

of Palestine” or “Palestine” in connection with

official business of the United Nations.

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.