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.,

Respondent.

————

On Writ of Certiorari to the

Pennsylvania Supreme Court

————

BRIEF OF THE ASSOCIATION OF

AMERICAN RAILROADS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

————

KATHRYN D. KIRMAYER

DANIEL SAPHIRE

ASSOCIATION OF

AMERICAN RAILROADS

425 3rd Street, SW

Washington, DC 20024

(202) 639-2505

THOMAS H. DUPREE JR.

Counsel of Record

JACOB T. SPENCER

GIBSON, DUNN &

CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, DC 20036

(202) 955-8500

tdupree@gibsondunn.com

Counsel for the Association of American Railroads

September 2, 2022

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

STATEMENT OF INTEREST OF

AMICUS CURIAE ...........................................

INTRODUCTION AND

SUMMARY OF ARGUMENT .........................

ARGUMENT .......................................................

IMPOSING GENERAL JURISDICTION BY

REGISTRATION IS UNCONSTITUTIONAL ...

I. Because Railroads Cannot Choose To

Shut Down In States Where They Now

Operate, Registration-Jurisdiction Has

Nothing To Do With “Consent” ................

A. The Nature Of Railroad Operations

Makes The Exit Option Impossible ....

B. Railroads Do Not Have The Unilateral Right To Abandon A Market .......

II. Coercing Personal Jurisdiction Through

Mandatory Registration Will Reopen The

Door To Forum Shopping, Particularly

In FELA Cases ..........................................

A. FELA Litigation Is Plagued By

Forum Shopping ..................................

B. Upholding Pennsylvania’s Law Will

Breathe New Life Into FELA Forum

Shopping ..............................................

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Aybar v. Aybar,

177 N.E.3d 1257 (N.Y. 2021) ....................

Bailey v. Central Vermont Ry.,

319 U.S. 350 (1943) ...................................

Bailey v. Union Pac. R.R.,

364 F. Supp.2d 1227 (D. Colo. 2005) ........

BNSF Ry. Co. v. Tyrrell,

137 S. Ct. 1549 (2017) ................. 2, 4, 20, 22, 23

BNSF Ry. Co. v. Tyrrell,

No. 16-405 (U.S.) .......................................

California v. Cent. Pac. R.R.,

127 U.S. 1 (1888) .......................................

Carbeck v. Baltimore & Ohio R.R.,

160 F. Supp. 626 (E.D. Pa. 1958) .............

Chavez v. Bridgestone Ams. Tire

Operations, LLC,

503 P.3d 332 (N.M. 2021) .........................

City of Cherokee v.

Interstate Commerce Comm’n,

727 F.2d 748 (8th Cir. 1984) .....................

Cuzzupoli v. Metro-N. Comm. R.R.,

2003 WL 21496879 (S.D.N.Y. 2003) .........

Daimler AG v. Bauman,

571 U.S. 117 (2014) ..................... 2, 4, 20, 22, 23

Dannels v. BNSF Ry. Co.,

483 P.3d 495 (Mont. 2021),

cert. denied, 142 S. Ct. 754 (2022) ............

iii

TABLE OF AUTHORITIES—Continued

Page(s)

DeLeon v. BNSF Ry. Co.,

426 P.3d 1 (Mont. 2018) ............................

Dep’t of Revenue of Or. v. ACF Indus., Inc.,

510 U.S. 332 (1994) ...................................

Detrick v. Baltimore & Ohio R.R.,

330 F. Supp. 257 (E.D. Pa. 1971) .............

Fennell v. Ill. Cent. R.R.,

987 N.E.2d 355 (Ill. 2012) .........................

Genuine Parts Co. v. Cepec,

137 A.3d 123 (Del. 2016)...........................

Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947) ...................................

Hanover Fire Ins. Co. v. Harding,

272 U.S. 494 (1926) ...................................

Hayes v. Chi., Rock Island & Pac. R.R.,

79 F. Supp. 821 (D. Minn. 1948) ..............

In re Asbestos Prods. Liab. Litig. (No. VI),

384 F. Supp.3d 532 (E.D. Pa. 2019) ......... 5, 21

Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee,

456 U.S. 694 (1982) ...................................

Jordan v. Del. & Hudson Ry. Co.,

2021 U.S. Dist. LEXIS 118056

(M.D. Pa. June 24, 2021) ..........................

Lanham v. BNSF Ry. Co.,

939 N.W.2d 363 (Neb. 2020) .....................

Luther v. Consol. Rail Corp.,

1999 WL 387075 (E.D. Pa. 1999) .............

TABLE OF AUTHORITIES—Continued

Page(s)

Mendoza v. Southern Pac. Transp. Co.,

733 F.2d 631 (9th Cir. 1984) .....................

Nat’l Equip. Rental Ltd. v. Szukhent,

375 U.S. 311 (1964) ...................................

Palumbo v. New Jersey Transit Rail

Ops., Inc.,

2003 WL 256939 (Pa. Commw. Ct. 2003)

Piper Aircraft Co. v. Reyno,

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

Rhoton v. Interstate R.R.,

123 F. Supp. 34 (E.D. Pa. 1954) ...............

Southern Ry. v. Greene,

216 U.S. 400 (1910) ................................... 6, 12

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

512 S.W.3d 41 (Mo. 2017) .........................

Waterloo Ry. Co.—Adverse Abandonment,

2004 STB LEXIS 280 (Apr. 30, 2004) ......

STATUTES

28 U.S.C. § 1445(a) ................................... 2, 17, 23

45 U.S.C. § 51 ...............................................

45 U.S.C. § 53 ...............................................

49 U.S.C. § 10903(a) .....................................

49 U.S.C. § 10903(d) .....................................

Act of Mar. 3, 1875, ch.152, 18 Stat. 482 .....

Conrail Privatization Act of 1986,

Pub. L. No. 99-509, 100 Stat. 1892...........

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Employers’ Liability Act,

45 U.S.C. §§ 51-60 ..................................... 1, 16

Northeast Rail Service Act of 1981,

Pub. L. No. 97-35, 95 Stat. 357 ................

Regional Rail Reorganization Act of 1973,

Pub. L. No. 93-236, 87 Stat. 985 ..............

REGULATION

49 C.F.R. § 1201.1-1 .....................................

OTHER AUTHORITIES

Association of American Railroads, A Short

History of U.S. Freight Railroads, aar.

org/wp-content/uploads/2020/08/AARRailroad-Short-History-Fact-Sheet.pdf ...

Association of American Railroads, Chronology of America’s Freight Railroads,

aar.org/wp-content/uploads/2020/07/AARChronology-Americas-Freight-RailroadFact-Sheet.pdf ...........................................

8, 9

Association of American Railroads, Freight

Railroads in Penn., aar.org/wp-content/

uploads/2021/02/AAR-Pennsylvania-StateFact-Sheet.pdf ...........................................

Association of American Railroads, Freight

Rail in Your State, aar.org/data-center/

railroads-states/ ........................................

Association of American Railroads, Railroad

Facts (2021 ed.) ......................................... 11, 12

TABLE OF AUTHORITIES—Continued

Page(s)

Association of American Railroads, State

Rankings, aar.org/wp-content/uploads/20

21/02/AAR-State-Rankings-2019.pdf .......

David Haward Bain, Empire Express

(1999) .........................................................

John Westwood & Ian Wood, The Historical

Atlas of North American Railroads

(2011) ......................................................... 8, 10

Railroad Information Services, Professional

Railroad Atlas of North America (3d ed.

2004) .......................................................... 12, 14

Rudolph Daniels, Trains Across the

Continent (1997)...................................... 8, 9, 10

Senate Bill S7253, nysenate.gov/legislation/

bills/S7253 .................................................

Tanya J. Monestier, Registration Statutes,

General Jurisdiction, and the Fallacy of

Consent, 36 Cardozo L. Rev. 1343 (2015)....

STATEMENT OF INTEREST OF

AMICUS CURIAE

Amicus curiae Association of American Railroads

(AAR) is an incorporated, nonprofit trade association

representing the nation’s major freight railroads, Amtrak,

and some smaller freight railroads and commuter authorities. AAR’s members account for the vast majority of

the rail industry’s line haul mileage, freight revenues,

and employment. In matters of significant interest to

its members, AAR frequently appears on behalf of the

railroad industry before Congress, the courts, and

administrative agencies. AAR participates as amicus

curiae to represent the views of its members when a

case raises an issue of importance to the railroad

industry as a whole.1

It is no surprise that the issue of general personal

jurisdiction returns to this Court—for the second time

in five years—in a case brought against a railroad

under the Federal Employers’ Liability Act (FELA),

45 U.S.C. §§ 51-60. FELA establishes an exclusive

federal regime for resolving railroad employees’ claims

for workplace injuries against their railroad employer—

and displaces the state workers’ compensation systems

that cover similar claims in virtually all other U.S.

industries. As a result, AAR members face hundreds

of FELA lawsuits each year.

AAR’s members are uniquely vulnerable to forum

shopping abuses, especially in FELA cases. Large

railroads operate in many states. And although FELA

suits arise under federal law, they cannot be removed

Both parties have filed a general consent to amicus briefs.

No person or entity other than AAR has made a monetary

contribution toward this brief, and no counsel for any party

authored this brief in whole or in part.

to federal court. See 28 U.S.C. § 1445(a). FELA plaintiffs therefore have their pick of any state or federal

court that can establish personal jurisdiction over the

defendant railroad.

AAR’s member railroads thus have a strong interest

in this case. Pennsylvania requires foreign corporations to register to do business in the state and

mandates that registration subjects them to general

personal jurisdiction in Pennsylvania’s courts. If this

Court upholds Pennsylvania’s law, other states will

be free to require foreign corporations to submit to

general personal jurisdiction as the price of doing

business in those states. AAR’s members operate in

and are subject to the foreign corporation registration

requirements of many states. Those railroads (and

all other foreign corporations) would be susceptible

to being sued for any claim, by any plaintiff in

Pennsylvania—and in all states that follow Pennsylvania’s lead—regardless of whether there is any

connection between the underlying claim and their

activities in the state.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Five years ago, in BNSF Railway Co. v. Tyrrell, 137

S. Ct. 1549 (2017), this Court blocked one attempt by

the FELA plaintiffs’ bar to extend general jurisdiction

against railroads to states where they are not “at

home.” There, the Court held that Daimler AG v.

Bauman, 571 U.S. 117 (2014), meant what it said—

general jurisdiction is almost never appropriate outside

of a corporation’s state of incorporation or principal

place of business, including in FELA cases.

But the FELA plaintiffs’ bar quickly switched gears,

arguing that states may subject foreign corporations

to general personal jurisdiction by forcing them to

jurisdiction based on registration.

Petitioner Robert Mallory defends Pennsylvania’s

registration-based jurisdiction statute by arguing that

such statutes merely obtain voluntary consent to

jurisdiction. He suggests that if respondent Norfolk

Southern does not wish to face any suit by any plaintiff

in the Commonwealth’s courts—regardless of whether

the suit has anything to do with Pennsylvania—it can

simply choose not to do business there.

Setting aside whether that is a real choice for any

business, it is a practical and legal impossibility for

railroads. Railroads cannot simply pick up their

tracks and move them to another state or just abandon

their tracks. Any choice the railroads made to do

business in a particular state was made long ago—

often long before the state required registration and

in some cases even before the state existed. Halting

operations now would have a devastating effect not

just on the railroads—which would lose the billions

they have invested in unmovable tracks and fixed

facilities—but on commerce in those states, which

depends on moving freight by rail. And because the

nation’s integrated rail system is essential for transporting freight among the states, ceasing operations in

one state would cripple interstate commerce.

In any event, railroads are not allowed to halt operations without obtaining permission from the Surface

Transportation Board. And the Board is virtually

certain not to approve a major freight railroad’s

withdrawal from an entire state, given the devastating

effect that would have on the economy and the general

public, not only in that state, but nationwide.

As a practical matter, therefore, upholding

Pennsylvania’s registration-based jurisdiction regime

would subject railroads to the same grasping form of

general jurisdiction that this Court rejected in Daimler

and BNSF. And that too would have a disproportionate

effect on railroads. FELA subjects railroads to unique

risks from forum shopping. States like Pennsylvania

and Montana have long been magnets for FELA cases

that have no connection whatsoever to those forums,

as the facts of this case and BNSF illustrate. Upholding

Pennsylvania’s regime would allow any other state to

adopt the same regime, potentially subjecting railroads

to general jurisdiction in any state in which they

operate—and rendering Daimler and BNSF dead letters.

ARGUMENT

IMPOSING GENERAL JURISDICTION BY

REGISTRATION IS UNCONSTITUTIONAL

I. Because Railroads Cannot Choose To Shut

Down In States Where They Now Operate,

Registration-Jurisdiction Has Nothing To

Do With “Consent.”

The premise of petitioner’s argument is that socalled “consent-by-registration statutes produce voluntary

consent to jurisdiction.” Pet. Br. 28 (emphasis added).

Yet petitioner makes little effort to defend that

premise. And for good reason: as the Pennsylvania

Supreme Court explained, forcing foreign corporations

to relinquish their constitutional right to resist being

haled into courts that do not have personal jurisdiction

or cease doing business in a state is a “Hobson’s

choice.” Pet. App. 54a.2 It “does not constitute vol2

The trial court interpreted Pennsylvania law as requiring

foreign corporations in Pennsylvania to “either do business [in

untary consent to general jurisdiction but, rather,

compelled submission to general jurisdiction by legislative command.” Id. at 53a.

That supposed “choice” is illusory for railroads in

particular. Railroads cannot dig up their tracks

and move them to a neighboring state. And even if

they could practically halt operations in a state, they

cannot legally do so without the federal government’s

permission, which would almost certainly be denied.

This case illustrates the point. Norfolk Southern’s

predecessor lines have operated in Pennsylvania since

the first half of the nineteenth century. Petitioner

suggests that if Norfolk Southern does not wish to be

subjected to suit in Pennsylvania’s courts for any claim

brought by any plaintiff—no matter where the claim

arose or how unconnected to Norfolk Southern’s activities in the state—it can simply choose to “withstand

the economic loss of the Pennsylvania market.” Pet.

25; see also Pet. Br. 28 (explaining that corporations

must be willing to accept the condition that they

“consent to jurisdiction or do business elsewhere”)

(emphasis added).

Withstanding the economic loss of the Pennsylvania

market would be consequential. Fifty-five million tons

and nearly 900,000 carloads of freight originate in

Pennsylvania. Sixty-one million tons and 1.2 million

Pennsylvania] while consenting to general personal jurisdiction,

or not do business in Pennsylvania at all.” Pet. App. 18a.

Another court described the choice facing a non-registering

foreign corporation as “either not do business in the state or do

business illegally.” In re Asbestos Prods. Liab. Litig. (No. VI), 384

F. Supp.3d 532, 541, n.10 (E.D. Pa. 2019). And the Pennsylvania

Supreme Court agreed, noting that corporations that failed to

business “unlawfully.” Pet. App. 54a, n.20.

carloads terminate in Pennsylvania. Pennsylvania

ranks in the top ten among the states in both of those

categories. See Association of American Railroads,

State Rankings, aar.org/wp-content/uploads/2021/02/

AAR-State-Rankings-2019.pdf. And even if giving up

that market was a rational business choice, withdrawing from Pennsylvania—or from any state in which

any large railroad does business—would be practically

and legally impossible.

This Court long ago recognized that the property of

a railroad within a state “is put there permanently. It

cannot be withdrawn at the pleasure of the investors.

Railroads are not like stages or steamboats, which . . .

can be taken elsewhere and put to use at other places

and under other circumstances.” Southern Ry. v.

Greene, 216 U.S. 400, 414 (1910). Congress too has

recognized that railroads are “easy prey” for state and

local authorities, because “they are nonvoting, often

nonresident, targets” and “cannot easily remove themselves from the locality.” Dep’t of Revenue of Or. v.

ACF Indus., Inc., 510 U.S. 332, 336 (1994) (quotation

marks omitted). Holding that Norfolk Southern “voluntarily” subjected itself to general jurisdiction in

Pennsylvania because it has “chosen” not to exit the

Commonwealth is the purest legal fiction.

A. The Nature Of Railroad Operations

Makes The Exit Option Impossible.

The Pennsylvania Supreme Court held that when

faced with the choice of “submit[ting] to the general

jurisdiction of Pennsylvania courts or not do[ing]

business in Pennsylvania at all ... a foreign corporation’s

consent to general jurisdiction in Pennsylvania can

hardly be characterized as voluntary, and instead is

coerced.” Pet. App. 54a (quotation marks omitted).3

Rightly so. “The option of refraining from doing

business in [a] state is not really a viable one for

most corporations.” Tanya J. Monestier, Registration

Statutes, General Jurisdiction, and the Fallacy of

Consent, 36 Cardozo L. Rev. 1343, 1390 (2015); see also

Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 509

(1926) (noting that a company that had done business

in a state for many years would see its value destroyed

“if it were excluded from the state by a denial of” its

constitutional rights).

And that is especially true for railroads. For many

companies, doing business in a state where they are

not “at home” is characterized by an office, a plant, one

or more stores where products are sold or services

rendered, and the presence of employees carrying out

activities to advance the company’s business. That is,

doing business typically is confined to one or several

discrete locations within the state. Ceasing to do

business in a state likely would result in financial

hardship and other difficulties for most companies, at

least in the short run. But in some cases, such a

decision, though undesirable, might be manageable

from a business standpoint.

Railroads are different. For freight railroads, which

operate in every state except Hawaii, doing business

consists of transporting a wide range of commodities

in rail cars moving over a lengthy, fixed right-of-way

consisting of a roadbed and tracks—which is almost

always property owned and maintained by the

A defendant may waive its due process right to resist the

personal jurisdiction of a court. Ins. Corp. of Ireland v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 703 (1982). One method of

waiver is to consent to a court’s exercise of personal jurisdiction.

Nat’l Equip. Rental Ltd. v. Szukhent, 375 U.S. 311, 316 (1964).

railroad. The railroads’ business also includes operating large, fixed facilities, such as yards, terminals, and

repair shops that support the transportation function

and are physically connected to the railroad’s line. All

of those tracks and facilities are vital to the movement

of freight across the United States—and between

the United States and its neighbors. And many of the

tracks were laid down and operated long before the

states enacted their registration regime—indeed,

before the states themselves existed.

The interstate rail system in the United States

dates to the early nineteenth century. The nation’s

first intercity railroad, the Baltimore & Ohio Railroad,

a 13-mile line, was chartered in 1827 and completed in

1830. See Association of American Railroads, Chronology

of America’s Freight Railroads, aar.org/wp-content/

uploads/2020/07/AAR-Chronology-Americas-FreightRailroad-Fact-Sheet.pdf; Association of American

Railroads, A Short History of U.S. Freight Railroads,

aar.org/wp-content/uploads/2020/08/AAR-RailroadShort-History-Fact-Sheet.pdf. The industry grew quickly,

spreading to New England and throughout the MidAtlantic. See John Westwood & Ian Wood, The Historical

Atlas of North American Railroads 38-41, 51 (2011).

Pennsylvania soon became a focal point of a fastgrowing network. Built as an alternative to canals,

the Philadelphia & Columbia Railroad began operating in 1832, and by 1834 operated 81 miles of track in

Pennsylvania. See Rudolph Daniels, Trains Across the

Continent 7 (1997). In 1857, it became part of the

Pennsylvania Railroad, a dominant line in the eastern

United States in the second half of the nineteenth

century and early twentieth century. The Pennsylvania

Railroad began construction in 1847, was operating lines

connecting Philadelphia, Pittsburgh, and Harrisburg

in the early 1850s, and soon after was moving freight

and passengers to Chicago. Id. at 25.

Thus, there were significant railroad operations

in Pennsylvania—including by Norfolk Southern’s

predecessor—long before the Commonwealth first

imposed its registration regime in 1874. See Pet. Br.

1. Norfolk Southern began operating in Pennsylvania

when it acquired some of the lines of the Consolidated

Rail Corp. (Conrail) in the late 1990s. Conrail, in turn,

was composed of the lines of various railroads that

had long operated in the northeastern United States,

including the Pennsylvania Railroad.4

The interstate rail system expanded rapidly throughout the United States. By 1850, more than 9,000 miles

of track were operated in the United States; just ten

years later that number jumped to more than 30,000

miles of track, mostly east of the Mississippi River.

See Chronology of America’s Freight Railroads, supra.

And during the second half of the nineteenth

century, encouraged and incentivized by the federal

government, railroads expanded over vast regions of

the western United States. E.g., Act of Mar. 3, 1875,

ch. 152, 18 Stat. 482; see also California v. Cent.

Pac. R.R., 127 U.S. 1, 39-40 (1888) (describing how

Congress exercised its authority under the Commerce

Conrail was created by the federal government as a government organization to stabilize the freight railroad system in 1973,

soon after the Pennsylvania Railroad had merged into the Penn

Central Railroad and the new railroad declared bankruptcy. See

Regional Rail Reorganization Act of 1973, Pub. L. No. 93-236, 87

Stat. 985. Congress acted again to support the freight rail industry, including in Pennsylvania, by enacting the Northeast Rail

Service Act of 1981, Pub. L. No. 97-35, 95 Stat. 357, and thereafter privatized Conrail only once it had become profitable, see

Conrail Privatization Act of 1986, Pub. L. No. 99-509, 100 Stat. 1892.

Clause to promote “the creation of the vast system of

railroads connecting the east with the Pacific, traversing

states as well as territories”). The first transcontinental

system, which spanned the central part of the western

United States, was completed in 1869. See Trains

Across the Continent, supra, at 52-53; see generally

David Haward Bain, Empire Express (1999). Other

transcontinental systems, spanning the northern and

southern regions of the west, were completed within

the next few decades. See Trains Across the Continent,

supra, at 54-60; The Historical Atlas of North American

Railroads, supra, at 192.

As railroads expanded westward, they frequently

established extensive operations in territory that had

not yet been admitted as a state, much less enacted

a registration statute. For example, the Northern

Pacific Railroad “greatly increased the population of

the northern territories and was instrumental in

North Dakota and Montana becoming states.” Trains

Across the Continent, supra, at 56 (emphasis added).

Arizona, Idaho, New Mexico, Utah, and Wyoming too

all had significant railroad operations before being

admitted as states. See The Historical Atlas of North

American Railroads, supra, at 193.

Today, the railroad system in the United States

forms an integrated, continental network—connecting

with the railroad systems of Canada and Mexico—

with huge volumes of freight moving from origin to

destination over the lines of more than one railroad.

In many states, the railroad rights-of-way extend

hundreds or even thousands of miles. For example,

Norfolk Southern operates over 2,400 miles of track

in Pennsylvania; CSX Transportation, another major

eastern railroad, operates over 1,000 miles of track in

Pennsylvania. Ten other railroads each operate over

at least 100 miles of track in the Commonwealth. In

total, railroads operate over 5,000 miles of track in

Pennsylvania. See Association of American Railroads,

Freight Railroads in Penn., aar.org/wp-content/uploa

ds/2021/02/AAR-Pennsylvania-State-Fact-Sheet.pdf.

Throughout the continental United States, railroads

operate over more than 135,000 miles of track, spanning every state, from over 10,000 miles in Texas to 93

miles in Rhode Island. See Association of American

Railroads, Railroad Facts 48 (2021 ed.). In both Texas

and California, two railroads each operate over 2,000

miles of track; in Ohio, two railroads each operate over

1,800 miles of track; and in Illinois, four railroads each

operate over 1,000 miles of track. See Association of

American Railroads, Freight Rail in Your State, aar.

org/data-center/railroads-states/ (fact sheets for each

state). In all but eight states, railroads operate at least

1,000 miles of track. See Railroad Facts, supra, at 48.

The initial construction of rail lines, which often

occurred well more than a century ago, represented a

huge capital investment. So does the ongoing upkeep

of the roadbed and tracks—the rail, crossties, and

ballast which make up the track structure must

constantly be maintained, and periodically replaced.

Over the past decade, railroads have, on average,

annually put down more than 600,000 tons of new

track and laid between 10 and 20 million crossties. See

Railroad Facts, supra, at 49. In addition to tracks,

railroads’ rights-of-way consist of bridges, tunnels,

and other infrastructure that also must be maintained.

During the past decade (through 2020), railroads invested

between $8 and $11 billion each year in their rightsof-way and structures. See id. at 25.

For railroads, ceasing to do business in a state would

mean abandoning those huge investments. (In contrast,

railroads’ main competitors, trucks, use public roads

as their rights-of-way, so ceasing to do business in a

state would not have the same financial implications.)

Even if some track and other assets could be moved,

the underlying roadbed is essentially part of the land

and could not be salvaged. See Southern Ry., 216 U.S.

at 414 (railroad property “cannot be withdrawn at the

pleasure of the investors”).

The staggering loss of assets that a railroad would

incur as a result of leaving a state would not be the

only consequence. The operations of one railroad in a

given state are inextricably linked to the operations of

other railroads, as well as to other transportation

modes, in that state and beyond. The lines of major

railroads in a state are physically connected to their

lines in adjacent states, forming a continuous system.

But the lines of even the largest railroads do not

constitute a fully independent system. Rather, virtually all railroads connect, and interchange traffic, with

other railroads both large and small. See Railroad

Information Services, Professional Railroad Atlas of

North America (3d ed. 2004) (maps of each state

showing the state’s railroad lines and where they connect with other railroads’ lines). And though railroads

and trucks compete for business, they also interchange

traffic, with railroads moving millions of trailers and

containers each year that often begin or end their

journey by truck. See Railroad Facts, supra, at 29.

Take Norfolk Southern, for example. The railroad’s

tracks form an extensive network of connections between

Pennsylvania’s railroads, cities, and manufacturing

hubs that crisscross the Commonwealth. See Professional

Railroad Atlas of North America, supra, at 86-87. The

following map illustrates the breadth of these connections.

If Norfolk Southern were compelled to cease doing

business in Pennsylvania, it would create a huge void,

devastating not only its own Pennsylvania operations,

but also the business of its connecting railroads, the

many manufacturers and other companies that rely

on freight rail to ship their products or deliver raw

materials, and the economy of the Commonwealth as

a whole. Worse still, Norfolk Southern’s tracks do not

stop at the Pennsylvania border, but continue into

Maryland, West Virginia, Ohio, New York, Delaware,

and New Jersey. See Professional Railroad Atlas of

North America, supra, at 86-87. Thus, withdrawing

from Pennsylvania would have a crippling effect on

interstate commerce.

Pennsylvania is only one of many states—and

Norfolk Southern is only one of many railroads—that

play similarly essential roles in commerce within,

between, and among the states and neighboring countries. If any other large railroad were compelled to

withdraw from a state where it is doing business

because it was faced with the choice of submitting to

general personal jurisdiction or ceasing to do business

in the state, the consequences would be just as devastating. The notion that Norfolk Southern—or any

railroad—has the option to withstand the loss of doing

business in a state is fantasy. In reality, railroads

facing this decision have no choice at all.

B. Railroads Do Not Have The Unilateral

Right To Abandon A Market.

Even if a railroad elected to cease doing business

in a state where it currently operates, it would not

have the leeway to make that decision unilaterally.

Recognizing the consequences of a railroad deciding to

halt operations, Congress required government approval

of such decisions. If a railroad wishes to “abandon any

part of its railroad lines” or “discontinue the operation

of all rail transportation over any part of its railroad

lines,” it must file an application with, and obtain the

approval of, the Surface Transportation Board. 49

U.S.C. §10903(a). The Board, in turn, may approve

such a request only if it determines that abandonment

or discontinuance is consistent with “the present or

future public convenience and necessity.” Id. § 10903(d).

In applying that standard, the Board must balance

the competing interests of the railroad, the affected

shippers and communities, and interstate commerce

generally. See City of Cherokee v. Interstate Commerce

Comm’n, 727 F.2d 748, 751 (8th Cir. 1984); Waterloo

Ry. Co.—Adverse Abandonment, 2004 STB LEXIS 280

at *9 (Apr. 30, 2004).

Thus, even to entertain the possibility of giving up

its business in a particular state, a railroad would

need to obtain regulatory approval. In light of the

devastating consequences on interstate commerce of a

large railroad abandoning a significant part of its line,

it is hard to imagine the Board finding wholesale

abandonment of all operations in a particular state

consistent with the public interest.

The history of the lines Norfolk Southern operates

in Pennsylvania shows that the federal government is

unwilling to jeopardize freight railroad systems.

When the Penn Central railroad declared bankruptcy,

Congress responded by pouring money into Conrail. It

then amended the law so that Conrail could operate

profitably. And it privatized Conrail only after the

railroad began turning a profit. See n.4 supra. The

suggestion that the federal government would allow

major freight railroads to abandon the Commonwealth

is as fantastical as the notion that the railroads could

practically do so. For this reason too, the exit option

is illusory for the nation’s freight railroads.

II. Coercing Personal Jurisdiction Through

Mandatory Registration Will Reopen The

Door To Forum Shopping, Particularly In

FELA Cases.

A. FELA Litigation Is Plagued By Forum

Shopping.

When given leeway on where to file a lawsuit, some

plaintiffs will select a forum for the purpose of gaining

a litigation advantage, even at apparent inconvenience

to themselves. See, e.g., Piper Aircraft Co. v. Reyno,

454 U.S. 235, 240 (1981) (plaintiff admitted that the

law of the chosen forum was more favorable to her

position than the law of the jurisdiction where the accident occurred and most of the witnesses were located);

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)

(noting that a plaintiff sometimes will attempt to force

a trial to a jurisdiction in order to disadvantage an

adversary, “even at some inconvenience to himself”).

Interstate railroads are not only uniquely unable to

avoid registration-based jurisdiction, but they are also

uniquely at risk of forum shopping. Unlike virtually

all other employers, there is no state-based workers’

compensation regime for interstate railroads. Instead,

since 1908 FELA has served as the exclusive federal

regime governing injuries suffered on the job by

railroad workers. See 45 U.S.C. §§ 51-60.

Several features of FELA make it an especially

inviting target for forum shopping. First, the Class I

and regional railroads—the defendants in the vast

majority of FELA cases—operate in multiple states.5

Second, although FELA suits arise under and are

governed by federal law, they cannot be removed to

federal court. See 28 U.S.C. § 1445(a). Third, FELA

is a negligence-based regime imposing liability on

defendants even if they are responsible for the employee’s injury only “in part.” 45 U.S.C. § 51, see also id.

§ 53 (“[T]he fact that the employee may have been guilty

of contributory negligence shall not bar a recovery, but

the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such

employee.”). That means that when FELA claims are

not settled, they are more often than not decided by

juries, rather than on dispositive motions. See Bailey

v. Central Vermont Ry., 319 U.S. 350, 354 (1943) (a

jury trial is “part and parcel” of the remedy provided

by FELA); Mendoza v. Southern Pac. Transp. Co., 733

F.2d 631, 633 (9th Cir. 1984) (“By enacting FELA,

Congress wanted to secure jury determinations in a

larger proportion of cases than would be true of ordinary common law actions.”) (citations and quotation

marks omitted). Thus, the FELA plaintiffs’ bar has its

pick of juries in any state or federal court that can exercise personal jurisdiction over the railroad defendant.

Unsurprisingly, forum shopping has long been a

feature of FELA litigation, and Philadelphia’s courts

in particular have long been a favorite forum for FELA

suits having little or no connection to Pennsylvania.

See, e.g., Luther v. Consol. Rail Corp., 1999 WL 387075

(E.D. Pa. May 25, 1999) (plaintiff alleged injury in

Ohio and resided in Ohio; four witnesses lived in

The Surface Transportation Board classifies railroads by

annual operating revenue, with Class I railroads being the

largest. 49 C.F.R. § 1201.1-1. Currently, there are seven Class I

railroads operating in the United States.

Ohio); Detrick v. Baltimore & Ohio R.R., 330 F. Supp.

257 (E.D. Pa. 1971) (plaintiff alleged injury in Maryland

and resided in West Virginia; the key witnesses lived

in Maryland, West Virginia, and Virginia); Carbeck v.

Baltimore & Ohio R.R., 160 F. Supp. 626 (E.D. Pa.

1958) (plaintiff alleged injury and resided in Maryland

and all witnesses resided in Maryland); Rhoton v.

Interstate R.R., 123 F. Supp. 34, 35 (E.D. Pa. 1954)

(plaintiff alleged injury and resided in Virginia and

witnesses all lived in the same vicinity “approximately

six hundred miles from Philadelphia”); Palumbo v.

N.J. Transit Rail Ops., Inc., 2003 WL 256939 (Pa.

Commw. Ct. Feb. 3, 2003) (plaintiff alleged injury and

resided in New Jersey and all potential witnesses

resided in New Jersey).

Today, FELA plaintiffs continue to file in Pennsylvania

courts, hoping to take advantage of the Commonwealth’s

jurisdiction-by-registration law. E.g., Jordan v. Del.

& Hudson Ry. Co., 2021 U.S. Dist. LEXIS 118056, at

*8-9 (M.D. Pa. June 24, 2021) (The plaintiff did “not

argue that [the railroad] has sufficient minimum

contacts to confer specific or general ‘at home’ personal

jurisdiction . . . but rather contends that [the railroad]

consented to general personal jurisdiction . . . when it

registered to do business in Pennsylvania.”).

This case illustrates the problem. Petitioner sued

Norfolk Southern under FELA in state court in

Philadelphia. But his case has no connection whatsoever with the Commonwealth: he does not reside

there, Norfolk Southern is not at home there, and his

injury did not occur there. See Pet. App. 13a, 45a.

Nonetheless, petitioner apparently believed that having

his case tried in Philadelphia would be advantageous.

FELA forum shopping has not been limited to

Pennsylvania courts. Until recently, Montana was a

special favorite of the FELA plaintiffs’ bar, not least

because of its anomalous regime that requires FELA

defendants to investigate, litigate, and settle FELA

claims in “good faith”—and threatens punitive damages

if they do not. See Dannels v. BNSF Ry. Co., 483 P.3d

495 (Mont. 2021), cert. denied, 142 S. Ct. 754 (2022).

When BNSF petitioned for certiorari in BNSF Railway

Co. v. Tyrrell, No. 16-405, it faced nearly three dozen

FELA lawsuits pending in Montana state court that

had no connection at all to Montana. Reply Br. for

BNSF Ry. Co. at 11 (Dec. 13, 2016).

Beyond Pennsylvania and Montana, filing suit in

jurisdictions with no connection to the underlying litigation has been a prominent feature of FELA litigation

for decades. See, e.g., Br. of AAR as Amicus Curiae at

9, BNSF Ry. Co. v. Tyrrell (Oct. 28, 2016) (“AAR’s large

freight members have advised AAR that at least 170

FELA cases are pending against them in the courts

of states that are neither (1) the railroad’s state of

incorporation; (2) the railroad’s principal place of

business; nor (3) the state where the alleged injury

giving rise to the suit occurred.”); Fennell v. Ill. Cent.

R.R., 987 N.E.2d 355, 362 (Ill. 2012) (plaintiff resided

and was injured in Mississippi, and “almost no one

connected with plaintiff’s side of the case resides in

Illinois”); Bailey v. Union Pac. R.R., 364 F. Supp.2d

1227, 1229 (D. Colo. 2005) (plaintiff resided and was

injured in Nebraska and most witnesses were Nebraskabased); Cuzzupoli v. Metro-N. Comm. R.R., 2003 WL

21496879 (S.D.N.Y. June 30, 2003) (plaintiff resided

and was injured in Connecticut and treating physician

was in Connecticut); Hayes v. Chi., Rock Island & Pac.

R.R., 79 F. Supp. 821 (D. Minn. 1948) (litigation

involving eight plaintiffs, one of whom was injured in

Texas, one in Illinois, and six in Oklahoma).

B. Upholding Pennsylvania’s Law Will

Breathe New Life Into FELA Forum

Shopping.

This Court’s decision in Daimler should have put a

stop to the worst forms of forum shopping. Absent

exceptional circumstances, plaintiffs’ attorneys could

secure general jurisdiction over corporations only in

their “place of incorporation and principal place of

business.” 571 U.S. at 137. And in BNSF, 137 S. Ct.

1549, this Court shut down Montana’s attempt to

continue exercising general jurisdiction over foreign

corporations in cases arising under FELA.

Yet the plaintiffs’ bar—and the FELA bar in

particular—has not been deterred. In state after state,

plaintiffs have sought to sue foreign corporations on

claims having no connection to the forum on the theory

that registration to do business somehow equals

consent to general jurisdiction. And in state after

state, courts have refused to allow that end-run of

Daimler and BNSF. See, e.g., Lanham v. BNSF Ry.

Co., 939 N.W.2d 363, 371 (Neb. 2020) (concluding that

“treating [the defendant’s] registration to do business

in Nebraska as implied consent to personal jurisdiction would exceed the due process limits prescribed in

. . . Daimler”); DeLeon v. BNSF Ry. Co., 426 P.3d 1, 9

(Mont. 2018) (“If a corporation consents to general

personal jurisdiction by registering to do business in

Montana, then the corporation has no genuine, meaningful choice to not consent to jurisdiction, aside from

refraining from doing business in Montana.”); State ex

rel. Norfolk S. Ry. Co., v. Dolan, 512 S.W.3d 41, 44

(Mo. 2017) (rejecting plaintiff’s argument that “by

complying with Missouri’s foreign corporation registration statute, [the defendant] impliedly consented to

general jurisdiction in Missouri”); see also Chavez v.

Bridgestone Ams. Tire Operations, LLC, 503 P.3d 332,

348 (N.M. 2021) (“Considering the constitutional

constraints involved, we conclude that it would be

particularly inappropriate to infer a foreign corporation’s consent to general personal jurisdiction in the

absence of clear statutory language expressing a

requirement of this consent.”).

But if this Court upholds Pennsylvania’s registrationjurisdiction law, any state would be able to impose

registration-based general jurisdiction.

As the

Pennsylvania Supreme Court observed, if Pennsylvania

can lawfully require consent by registration, then “all

states could enact [similar laws], rendering every

national corporation subject to the general jurisdiction

of every state.” Pet. App. 54a; see also In re Asbestos

Prods. Liab. Litig. (No. VI), 384 F. Supp.3d at 540 (If

Pennsylvania’s consent by registration statute is

“deemed constitutional, other states would only need

to add language to their registration statutes spelling

out the jurisdictional consequences of registering to

do business, while at the same time giving no real

alternative to registration.”). And in Aybar v. Aybar,

177 N.E.3d 1257 (N.Y. 2021), the New York Court of

Appeals held that New York’s corporate registration

statute does not “condition the right to do business

on consent to the general jurisdiction of New York

courts,” id. at 1260, but noted “proposed legislation

that would amend the business registration statutes

to expressly state that a foreign corporation consents

to general jurisdiction in New York when it registers

to do business here,” id. at 1266, n.9.6

The New York legislature did pass such a bill last year, but it

was vetoed by the New York Governor on December 31, 2021. See

Senate Bill S7253, nysenate.gov/legislation/bills/2021/S7253.

As a result, reversal here could soon render Daimler

and BNSF dead letters. In limiting general jurisdiction to forums where a corporation is “at home” rather

than everywhere it has substantial operations, this

Court explained that “[a] corporation that operates in

many places can scarcely be deemed at home in all of

them.” Daimler, 571 U.S. at 139 n.20. But if states

are empowered to condition a corporation’s right to do

business in a state on being subject to general personal

jurisdiction, the consequence will be to render corporations “at home” in the “many places” in which they

operate. What this Court deemed an “unacceptably

grasping” concept of general jurisdiction, id. at 138,

may well become the norm, see Genuine Parts Co. v.

Cepec, 137 A.3d 123, 143 (Del. 2016) (“Human experience shows that ‘grasping’ behavior by one, can lead to

grasping behavior by everyone, to the collective

detriment of the common good.”) (footnote omitted).

The characteristics that made railroads easy targets

for forum shopping in the past—significant operations

in multiple states and the unique features of FELA—

will remain, leaving railroads particularly susceptible

to suit in jurisdictions having little connection to the

parties or the underlying cause of action. Large railroads conduct substantial operations across numerous

states: BNSF operates in 28 states; Union Pacific in

23 states; CSX in 23 states and the District of Columbia;

and Norfolk Southern in 22 states and the District of

Columbia. Amtrak, which provides intercity passenger

rail service nationwide, and which also is covered by

FELA, operates in 46 states. If this Court reverses

and other states elect to follow Pennsylvania’s lead,

FELA plaintiffs suing those railroads could have a

wide range of jurisdictions to choose from. Those cases

would likely be brought and maintained in state court,

see 28 U.S.C. § 1445(a), and would proceed before state

juries.

Daimler made clear that “a substantial, continuous,

and systematic course of doing business” is not

sufficient to give a state’s courts general personal

jurisdiction over a corporation. 571 U.S. at 138. BNSF

confirmed that the same is true in FELA cases. 137

S. Ct. at 1558. Those holdings will no longer matter if

this Court permits Pennsylvania to condition registration to do business on the imposition of general

personal jurisdiction. Such a ruling would likely

prompt some, maybe many, states to replicate the

Pennsylvania law. As a result, FELA and other kinds

of lawsuits will be brought in courts throughout the

country, in states where the defendant does some

business but that have little or no connection to the

underlying claims.

CONCLUSION

The judgment of the Pennsylvania Supreme Court

should be affirmed.

Respectfully submitted,

THOMAS H. DUPREE JR.

KATHRYN D. KIRMAYER

DANIEL SAPHIRE

Counsel of Record

ASSOCIATION OF AMERICAN JACOB T. SPENCER

RAILROADS

GIBSON, DUNN &

425 3rd Street, SW

CRUTCHER LLP

Washington, DC 20024

1050 Connecticut Avenue, NW

(202) 639-2505

Washington, DC 20036

(202) 955-8500

tdupree@gibsondunn.com

Counsel for the Association of American Railroads

September 2, 2022

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.