# Amicus Curiae Brief — BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017) (No. 16-405)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0712%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

——

FILED

No. 16-405 oe

IN THE
Supreme Court of the Anited States

BNSF RAILWAY COMPANY,
Petitioner,
U.
KELLI TYRRELL, as Special Administrator for the
Estate of BRENT T. TYRRELL; and ROBERT M. NELSON,
Respondent.

On Writ Of Certiorari
To The Supreme Court Of Montana

AMICUS CURIAE BRIEF OF THE
AMERICAN ASSOCIATION FOR JUSTICE
IN SUPPORT OF RESPONDENTS

Julie Braman Kane Jeffrey R. White
AMERICAN ASSOCIATION Counsel of Record
FOR JUSTICE AMERICAN ASSOCIATION

777 6% St., NW, Ste. 200 FORJUSTICE

Washington, DC 20001 777 6t St., NW, Ste. 200

(202) 965-3500 Washington, DC 20001
(202) 944-2839
jeffrey.white@justice.org

Attorney for Amicus
Curiae

i. — —

APR ~ 5 2017 |

CLERK |

TABLE OF AUTHORITIES

TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICUS

I.

I].

A STATE COURT MAY, CONSISTENT WITH
DUE PROCESS, .ASSERT PERSONAL
JURISDICTION OVER A FELA CLAIM
ARISING IN ANOTHER STATE, BASED ON
DEFENDANT'S SUBSTANTIAL RAIL

OPERATIONS IN THE FORUM STATE. ............-.
. FELA Allows Injured Railroad Workers

to File Suit Where Their Employer Is

BR I cciiccnscocecinincecsngenenassasianmiiaasan
. Historically, State Courts Have

Exercised Jurisdiction Over Foreign
Corporations Based on Their Consent To
Jurisdiction as a Condition For Doing

eS I GN BN ics cdacaccccedcennenncsaneueioass

1. Jurisdiction based on registering
to do business and actually doing
business in the forum state has
long been an accepted basis for
exercising jurisdiction over

foreign corporations................-...ss0++-

2. BNSF has consented to the

jurisdiction of Montana courts..........

DUE PROCESS MuUsT BE MEASURED
AGAINST THE FACTS OF INDIVIDUAL

BUNT csiniccts:necis.ckigsevreeittnihejianine dpuenbeuacnaieni canna

Oe eee ee ee ee ee ee ee

ee ee ee ee ee eee eee eee eee eee ee eee eee eee ee eee |

ne

me

.. 18

Il.

il

A. Inflexible Jurisdictional Requirements

Do Not Serve Fundamental Fairness or

EE CRIED, ococcccscesnscccescsvecscoesescsss ces
. Limiting General Jurisdiction to a

Corporation’s State of Incorporation or
Single Principal Place of Business Does

Not Comport With Due Process...................

1. A Corporation’s State of
Incorporation Has Little Bearing
on the Fairness of Jurisdiction in

the Courts of that State. ...................

2. Fundamental Fairness Does Not
Limit Jurisdiction to the Courts of
a Single Principal Place of

TIRE a Ee a

3. The Nature of Defendant's
Contacts With the Forum State
and Their “Relatedness” To the
Litigation Should Be A Factor In
Assessing the Fairness. of

SS

FORUM SHOPPING PROVIDES NO SUPPORT
FOR NARROWING STATE COURT
JURISDICTION OVER CORPORATE

IIL spccnninssdnesensesccncenssteesseeenes Sciecmeen

Forum Shopping” Provides No Support

For Limiting the Jurisdiction of State

Courts Absent Demonstrable
Fundamental Unfairness To

ES IE a

18

21

..23

.. 26

wal

i

B. BNSF Has Not Established Any
Unfairness In Permitting Plaintiffs To
Bring Their FELA Actions In Montana,
Rather Than In the Courts Of Delaware
SN RS Aes SE SERS Ae de 30

1,

Montana’s application of FELA’s
statute of limitations is not

fundamentally unfair to BNSF........... 31

Montana’s “suggestion” that
FELA damages may not be
reduced for plaintiffs preexisting
condition is not fundamentally

RISES TCE CA a ne

Montana discovery practice is not

fundamentally unfair to BNSF.........

Montana’s_’ evidentiary rules
regarding expert testimony are

not fundamentally unfair..................

Montana’s Rule Against Forum
Non Conveniens in FELA cases is

not fundamentally unfair..................

Montana’s pro hac vice rules are

not fundamentally unfair..................

The fact that Montana permits
FELA suits by nonresident
plaintiffs is not fundamentally

|
CONCLUSION

eee ee eee eee ee ee eee ee eee ee eee eee eee eee eee se eee

32

.. 33

.. 35

. 85

lV

TABLE OF AUTHORITIES

Cases

Allied-Bruce Terminix Companies, Inc. v. Dobson,
513 U.S. 265 (1995) ......-----ecceccsnseeenseensnenenennnnnenens 15

Am. Dredging Co. v. Miller,
510 U.S. 443 (1904) ......----e-.cecceeecsererenesesee sntennnnes 34

Anderson v. BNSF Ry. Co.,
354 P.3d 1248 (Mont. 2015) .......-...--e se 31, 32

AT&T Mobility LLC v. Concepcion,
BGS U.S. 333 (ZOLL) ....---cccnereceeeerecreererensesenenenenens 15

Bailey v. Cent. Vermont Ry.,
319 US. B50 (1943) «.-.eccosecsesscesceneeeeeesennssennennee ste 29

Bauman v. DaimlerChrysler AG,
2005 WL 3157472 (N.D. Cal. Nov. 22, 2005)...... 16

BNSF Ry. Co. v. Shipley,
366 Mont. 542 (2012)........-.:0-0:cseeseeeecrseerernneneannnes 17

Boyd v. Grand Trunk W. R. Co.,
338 U.S. 263 (1949) .........ccccecceecrreeerererens 28, 30, 36

Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985) ......-.---.00c--cecseeeeseeeeeentee: 16, 19

Burlington N., Inc. v. Flathead Cty.,
575 P.2d 912 (Mont. 1978) ......---ccevecceneseerseerseeeees 17

Burlington N., Inc. v. Montana Dep't of Revenue,
781 P.2d 1121 (Mont. 1989) ........--------er er i

Burlington N., Inc. v. Richland Cty.,
512 P.2d 707 (Mont. 1973) .....ceccecseceeserenrrenenreneees 18

Burnham v. Superior Court, 4

aT RR ne a 11
Cafeteria & Rest. Workers Union, Local 473 v.

McElroy,

ALLS LRT 18, 19
California v. Posey,

a a I I oo necicsasineenteseoiiesecuienmiec ens 28
Canada Malting Co. v. Paterson Steamships, Ltd.,

ESAT Ba SERN ST nL 31
Carnival Cruise Lines, Inc. v. Shute,

ETE SS LP 15, 30
Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ......... EEE SR ere 28
Consol. Rail Corp. v. Gottshall,

aa a aCe 9
CSX Transp., Inc. v. McBride,

i lS ar eS 7,31
Daimler AG v. Bauman,

eee passim
I 24

Daubert v. Merrell Dow Pharmaceuticals, Inc.,
a a) eee 34

Denver & Rio Grande W. R.R. Co. v. Terte,
a 9, 10

Dice v. Akron, Canton & Youngstown R.R..,
REO PeT 29

v1

Douglas v. N_Y., N.H. & H.R. Co.,
ge SEER ee es 10, 11

Gilmer v. Interstate/Johnson Lane Corp.,
ee I ctr ccna letceice Ninitteieitsl ibthatinnaiies 15

Goodyear Dunlop Tires Operations, S.A. v. Brown,
RRL ei OS Stee EES passim

Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee,
EE er ae NI ITE 12

International Shoe Co. v. Washington,
EEA SS SNe passim

J. McIntyre Mach., Ltd. v. Nicastro,
EES A 17, 21

Jett v. Dallas Indep. Sch. Dist.,
ES a I a 16

Keeton v. Hustler Magazine, Inc.,
ee iiiscnscdiecdiededvenseimssbes 29, 31, 35

Kulko v. Super. Ct.,
I 19

Lafayette Ins. Co. v. French,
59 U.S. (18 How.) 404 (1856) ...........0...000000000000.. 12

Langemo v. Montana Rail Link, Inc.,
gf Gs ee een 17

Larson v. Jo Ann Cab Corp.,
Se ae I se sccrcncnncccteccnecseosnssicoss 21

Lincoln Prop. Co. v. Roche,
I A i sn cuctttncasdanidiciadenniedapiawonideesiads 28

vil

Logan v. Zimmerman Brush Co.,
I a scad tnaaaiaabgnaaine 18

McKnett v. St. Louis & S.F. Ry. Co.,
I a a adsaskomade 10

Miles v. Illinois Cent. R.R. Co..,
en 9, 10, 29

Mississippi Pub. Corp. v. Murphree,
PET A i cede 14, 15

National Bank of N. Am. v. Assocs. of Obstetrics &

Female Surgery, Inc.,
i pipaseoniinesaions 13

National Equipment Rental, Ltd. v. Szukhent,
I RET eS eee 15

Neirbo Co. v. Bethlehem Shipbuilding Corp.,
EE MP I ccxtinaspsiagespiiainandescsscocanne 13, 14

Pennsylvania Fire Insurance Co. v. Gold Issue
Mining & Milling Co.,
I i sesietahbiaoinnenpuine 13

Perkins v. Benguet Consol. Min. Co.,
in cise cnindtienseupesenonapese 18, 24

Perkins v. First Nat. Bank of Cincinnati,
79 N.E.2d 159 (Ohio Com. Pl. 1948)..........0........ 24

Piper Aircraft Co. v. Reyno,
a I lle CRE See FOr 31

Pope v. Atl. Coast Line R.R. Co.,
Se SE iiiiks icieearciccdundcaaborcdcvanmmnne 9,10

Vill

Robert Mitchell Furniture Co. v. Selden Breck
Construction Co.,

es sauna cbibammaiodgumiicc 13
Schwinden v. Burlington N., Inc.,

GE FB BODE GORE. 1DBE) 20.....cccccccccscccescoccsees: 17
Shaffer v. Heitner,

RS Le gs LORIE APE 19
Simms v. Ruby Tuesday, Inc.,

Pee Ee I Es ED ccccocncesccscccccscvcccscoveseescees 8
St. Clair v. Cox,

es SID ois tas isstcmedaitnedabsnaamaticives 12, 13
St. Louis & Iron Mountain & Southern Railway Co.

v. Taylor,

i ccsubidiabopeiddaadea 8

Standard Fire Ins. Co. v. Knowles,
ns oo ppciesdvasnsonneaie 28

State of Mo. ex rel. S. Ry. Co. v. Mayfield,
I i caslbeuuoniadeaidoes 54

Tauza v. Susquehanna Coal Co..,
ee I Ps ie IEP Picicccnscccnssossscosessseceoessense 14

Thigpen v. Roberts,
a ceadueedcnnion 16

Trainmen v. Virginia ex rel. Virginia State Bar,
SE i I aiiteicccisnadugesgdneiepdibdsenard cbaucecueessonees 8

Tyrrell v. BNSF Ry. Co.,
EET IRIE ees oa aR 21

ix

Urie v. Thompson,

Ny I is tencissintinncdabinseeonsscdubenadh 30, 31
Statutes
I css ecpiciebanone acuaabins 7
I inninansiaiopusscaredabioccanpdciedissonecandboueds 9, 28
PTR nerinsencacsiodiocienpsieiniiantigadasaigiaheoiahianondn 35
mE ERED EERIE SE non pO a ANRC 26
IE a TO 25
A, 26
Oe RE ER A ae ae nee ee a a 29
Mont. Code Ann. § 35-1-1030(1)-(2) .00..0.... eee 16
Mont. Code Ann. § 35-1-115 .0...............cccccceecesesseseees 16
Bes Ge 6 Ge BS BR AI GD iciicvinccccccoectccccccdascci 29
Rules
I I a: In asnnsniccswsnnnssasadsoinienentubiisoies 33
Be Oy a ro MAD wise siyeccscocovwvnsddcsescsiusesesves 33

Legislative Material

45 Cong. Rec. 4034
Pe Rs Be MI, CIB iv ccccccvececccceceseccoceseeossces 8

Other Authorities

4 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1066 (4th ed.) 12

Alfred Hill,
Choice of Law and Jurisdiction

in the Supreme Court,
81 Colum. L. Rev. 960, 980 (1981)... 14

Black's Law Dictionary (7th ed. 1999)..................... 28

Friedrich K. Juenger,
What’s Wrong with Forum Shopping?,
16 Sydney L. Rev. 5 (1994)..............ccccccceceeeee 28, 30

John Fabian Witt,
Toward a New History of American Accident Law:
Classical Tort Law and the Cooperative Firstparty
Insurance Movement,
114 Harv. L. Rev. 690, 694 (2001) ....0..000..00 ee. 7

Judy M. Cornett & Michael H. Hoffheimer,
Good-Bye Significant Contacts: General
Jurisdiction After Daimler AG v. Bauman,
Fe I Oe Bae BE Ci ricricicccccscccctccecessscsstesss 23

Lea Brilmayer, et al.,
A General Look at General Jurisdiction,

es Sis ls WR I ccc acicusennsondcascvcossoncess 23

Lewis S. Black, Jr.,
Why Corporations Choose Delaware
m:n ee 22

Lucian Bebchuk, Alma Cohen & Allen Ferrell,
Does the Evidence Favor State Competition in

Corporate Law?,
yy | 22

x1

Markus Petsche,
What's Wrong with Forum Shopping? An Attempt
to Identify and Assess the Real Issues of A
Controversial Practice,
Oe I, PE ED ove. ccccovccccccucccoscace:s. 28, 30

Melvin L. Griffith,
The Vindication of a National Public Policy
Under the Federal Employers’ Liability Act,
18 Law & Contemp. Probs. 160 (1953)................. 7

Pat Corcoran,
Northwestern and Property Taxes,

The Missoulian (Nov. 14, 2016) ......0000.0000000000..2.. 17
Richard Maloy,

Forum Shopping? What’s Wrong with That?,

I on. dak eecdaninoawecunen 28, 30

Samuel B. Horovitz,
Assaults and Horseplay Under Workmen's

Compensation Laws,
Fe EAR aaa ee x

Scott D. Dyreng, Bradley P. Lindsey & Jacob R.

Thornock,
Exploring the Role Delaware Plays as a Domestic

Tax Haven,

a } eeeeere 22
Walter Licht,
Working for the Railroad (1983)........0000000000000.0.... 7

Walter W. Heiser,
Forum Selection Clauses in State Courts:
Limitations on Enforcement After Stewart and

Carnival Cruise,
45 Pia. L.. Rev. 361 (IGBS) ..........00.cc...00000......-..- 16

Xll

Walter W. Heiser,
General Jurisdiction in the Place of Incorporation:
An Artificial “Home” for an Artificial Person,
53 Hous. L.. Rev. 631 (2016) ..................<..0000. 14, 23

IDENTITY AND INTEREST OF AMICUS
CURIAE

The American Association for Justice (“AAJ”) is
a voluntary national bar association whose trial
lawyer members primarily represent plaintiffs in
personal injury, employment rights, civil rights, and
consumer rights litigation. Almost from its inception
in 1946, AAJ has included lawyers who have
advocated specifically for the rights of injured railroad
workers to compensation under the Federal
Employers’ Liability Act.

AAJ believes that the right to bring a FELA
action in any state court where the employer-railroad
does business reflects Congress’s recognition that
workers may be injured wherever the rails may take
them. The narrow rule of personal jurisdiction urged
by Petitioner in this case would deprive railroad
workers of this substantial right. !

SUMMARY OF ARGUMENT

Congress enacted the Federal Employers’
Liability Act in 1908, responding to an accident crisis
that killed and injured hundreds of thousands of
railroad workers each year. Congress sought to make
railroads more accountable for their negligence, by
compensating victims and their families and
providing a strong incentive for railroads to adopt

1 The parties have consented to the filing of this brief. The
undersigned counsel for amicus curiae affirms, pursuant to
Supreme Court Rule 37.6, that no counsel for a party authored
this brief in whole or in part and no person or entity other than
amicus curiae, its members, and its counsel contributed
monetarily to the preparation or submission of this brief.

safer operations. Recognizing that railroad employees
can suffer injury wherever the rails take them,
Congress amended the FELA in 1910 to permit
plaintiffs to sue where the railroad “shall be doing

business.”

This Court's precedents’ establish that
Congress thereby granted permission to sue in state
courts where the carrier conducts operations, and that
the statute’s broad grant of jurisdiction was not
inequitable, oppressive, or fundamentally unfair.

lb. Alternatively, the decision below may be
upheld on the basis of consent. Because personal
jurisdiction is a right that may be waived, consent was
accepted as a basis for state court jurisdiction over
foreign corporations prior to this Court’ expansion of
jurisdiction in International Shoe, and even before the
adoption of the Fourteenth Amendment. This Court
has consistently held that appointment of an agent to
receive service of process on behalf of a corporation
that actually does business in the state is effective.
Historically, courts found that state courts could
assert jurisdiction even as to claims not arising out of
the corporation’s in-state activities.

Consent jurisdiction is not inconsistent with
either Jnternational Shoe or Daimler, both of which
expressly addressed the assertion of jurisdiction over
foreign corporations that had not consented to
jurisdiction. Indeed, to hold that consent jurisdiction
is no longer viable would be inconsistent with this
Court’s decisions upholding contractual forum
selection provisions and arbitration agreements,
which are a species of forum selection clause. A
corporation that has consented to state court
jurisdiction in order to conduct business in the state

has fair notice that it may be sued there and can plan
accordingly.

In this case, BNSF has registered to do
business in Montana, has appointed an agent to
receive service, and has actually conducted
substantial business in the state. BNSF has regularly
appeared in Montana courts to protects its own
interests in the state.

2a. Petitioner asserts that due process requires
that general jurisdiction may only be exercised by
state courts in the corporate defendant’s state of
incorporation or principal place of business. To the
contrary, due process is not served by such inflexible
jurisdictional rules, but by a fact-based assessment of
the fairness of asserting jurisdiction in the particular
case. This Court in Daimler expressly rejected
BNSF’s inflexible rule that a corporation can only be
subject to general jurisdiction in its state of
incorporation and the state of its principal place of
business, but instead reaffirmed the more flexible
standard set forth in International Shoe.

2b. Indeed, limiting general jurisdiction to a
corporation’s state of incorporation or single principal
place of business does not comport with due process.
BNSF’s argument leans heavily on the “at home”
metaphor it garners from this Court’s precedents
instead of addressing the ultimate question whether
it is fundamentally unfair for an injured worker to file
a FELA action in the courts of another state in which
BNSF conducts substantial railroad activities.

For example, it is difficult to credit BNSF’s
claim to be “at home,” and thus amenable to suit, in
its state of incorporation, Delaware, where it conducts

no rail operations, owns no track, and employs no
workers. Businesses choose to incorporate in
particular states for a variety of reasons that have
little to do with their actual business operations,
including internal governance laws and _ tax
advantages. Many of the nearly one million
corporations that are incorporated in Delaware carry
on no business in the state except to maintain a
dropbox as a legal address. It cannot be credibly
maintained that BNSF is “at home” for suit by an
injured railroad worker in Delaware, but not in
Montana, where BNSF actually conducts railroading
operations.

Similarly, it is not reasonable to assert that
BNSF can be “at home” based on its business
activities in only one state, its principal place of
business. Large companies may engage in activities in
several states that may be sufficient to treat the
company as “at home” in each. This Court has itself
suggested a company may be deemed “at home” in
more than one state based on the quantity and nature
of its operations and contacts there.

In this case, the court below found that
jurisdiction was fair, based on BNSF’s extensive
business operations in Montana. Significantly those
contacts include ownership of over 2,000 miles of track
in Montana, a share of BNSF’s total track that is a
close second to that of Texas. Because BNSF cannot
easily sell or abandon its track in Montana, its
activities in the state go far beyond ephemeral
contacts and constitute a continual and permanent
presence.

Additionally, BNSF’s Montana contacts are not
unrelated to plaintiffs’ causes of action. Plaintiffs

allege negligence on the part of BNSF that resulted in
injury that is compensable under FELA. BNSF
employees working in Montana are likewise covered
by FELA and may bring suit against BNSF for the
same allegedly negligent practices as are alleged by
plaintiffs in this case.

3a. Petitioner's assertion that this Court should
combat “forum shopping” provides no support for
restricting the exercise of general jurisdiction by state
courts. BNSF has neither defined “forum shopping”
nor explained how permitting FELA plaintiffs to sue
in Montana for injury occurring elsewhere deprives it
of due process or substantial justice.

The plaintiff is the master of the complaint and
a plaintiffs right to select an advantageous forum is
well settled. Railroad workers may be injured far from
home so that a state other than the place of injury may
offer greater convenience and _ lesser’ cost.
Representation of FELA plaintiffs is a relatively
specialized field, and plaintiffs counsel of choice may
practice in another state. One state’s procedural rules
may allow for more efficient and inexpensive litigation
of a particular case. In addition, one state’s courts may
have greater experience in presiding over FELA cases
or have less crowded dockets. The fees required for
obtaining a trial by jury, expressly guaranteed to
FELA plaintiffs, may be lower in the forum state.
Plaintiffs’ lawyers would not be fulfilling their legal
duties to their clients if they failed to make use of such
differences between jurisdictions.

“Forum shopping” that amounts to no more
than selection of a forum offering a _ legitimate
advantage to the plaintiff provides no basis for

limiting plaintiffs ability to choose the most favorable
forum in which to pursue his or her claim.

3b. In this case, BNSF has failed to
establish that allowing plaintiffs to sue in Montana,
where BNSF does business, rather than requiring
them to sue in Delaware or Texas, or in the state of
injury, is fundamentally unfair. For example,
Montana’s application of FELA’s three-year statute of
limitations is firmly rooted in this Court's FELA
precedents. The fact that some federal courts are
perceived to hold a more defendant-friendly
interpretation is not relevant to forum shopping
among state courts. Moreover, if a state court’s
interpretation of the federal statute is erroneous, the
appropriate vehicle is review by this Court, not
restricting the personal jurisdiction of state courts.
Similarly, Montana’s view of reduction of damages for
preexisting conditions is a valid construction of
FELA’s text which may, if erroneous, be corrected by
this Court.

Nor are Montana’s discovery practice and
evidentiary rules regarding expert testimony unfair to
defendants. BNSF’s claimed state-federal differences
are not relevant to “forum shopping” among state
courts.

Montana’s rule against forum non conveniens
motions in FELA cases comports with this Courts
decisions leaving such matters to the states. In
addition, Montana’s pro hac vice rule does not unfairly
disadvantage a railroad that does. substantial
business in Montana. Finally, the fact that plaintiffs
in this case are not residents of Montana has no
bearing on whether Montana’s courts may exercise
jurisdiction over BNSF.

ARGUMENT

I. A STATE COURT MAy, CONSISTENT
WITH DUE PROCESS, ASSERT PERSONAL
JURISDICTION OVER A FELA CLAIM
ARISING IN ANOTHER STATE, BASED ON
DEFENDANT'S SUBSTANTIAL RAIL
OPERATIONS IN THE FORUM STATE.

A. FELA Allows Injured Railroad
Workers to File Suit Where Their
Employer Is Doing Business.

Congress enacted the Federal Employers’
Liability Act, 45 U.S.C. § 51 et seq. in 1908, following
“an accident crisis like none the world had ever seen
and like none any Western nation has witnessed
since.” John Fabian Witt, Toward a New History of
American Accident Law: Classical Tort Law and the
Cooperative Firstparty Insurance Movement, 114
Harv. L. Rev. 690, 694 (2001). Casualties among
railroad workers in particular were astronomical. See
generally Walter Licht, Working for the Railroad 190-
200 (1983) and Melvin L. Griffith, The Vindication of
a National Public Policy Under the Federal
Employers’ Liability Act, 18 Law & Contemp. Probs.
160, 163 (1953). In 1908 alone, 281,645 trainmen were
killed or injured. CSX Transp., Inc. v. McBride, 564
U.S. 685, 691 (2011).

American courts at that time offered little in
the way of justice or compensation for injured workers
and their families. AAJ’s founder noted that, prior to
workers compensation laws, workers lost
approximately 80 percent of their personal injury tort
actions against their employers. Samuel B. Horovitz,
Assaults and MHorseplay Under Workmen’s

Compensation Laws, 41 Ill. L. Rev. 311, 311 (1946),
cited in Simms v. Ruby Tuesday, Inc., 704 S.E.2d 359,
361 (Va. 2011). The primary obstacle was judicial
application of “harsh and technical common-law rules
which sometimes made recovery difficult or even
impossible.” Trainmen v. Virginia ex rel. Virginia
State Bar, 377 U.S. 1, 3 (1964). FELA’s purpose was
most expansively stated by the Senate Committee on
the Judiciary in a report accompanying the 1910
amendment to the Act:

{FELA] places such stringent liability
upon the railroads for injuries to their
employees as to compel the highest
safeguarding of the lives and limbs of the
men in this dangerous employment. .. .
It was the intention of Congress... to
shift the burden of the loss resulting
from these casualties from “those least
able to bear it” and place it upon those
who can .. . “measurably control their
causes.”?

45 Cong. Rec. 4034, 4041, 61st Cong., 2d Sess. (1910).

Thus, as this Court has explained, Congress
intended not only “to provide compensation for the
injuries and deaths” of railway employees, but also “to
encourage employers to improve safety measures in

2 The quotation is from St. Louis & Iron Mountain & Southern
Railway Co. v. Taylor, 210 U. S. 281, 296 (1908), where this
Court found no federal constitutional impediment to the courts
of Arkansas asserting jurisdiction over a suit for the wrongful
death of a railroad worker in the Indian territory (now
Oklahoma) against a Missouri corporation. Jd. at 285.

order to avoid those claims.” Consol. Rail Corp. v.
Gottshall, 512 U.S. 532, 555 (1994).

Consistent with this remedial purpose,
Congress in 1910 amended the statute to provide that
a plaintiff may bring a FELA action in a district “in
which the defendant shall be doing business at the
time of commencing such action,” and that jurisdiction
of the district courts “shall be concurrent with that of
the courts of the several States.” 45 U.S.C. § 56.

This Court has construed that provision as
“permission granted by Congress to sue in state courts
... where the carrier is found doing business.” Miles
v. Tilinois Cent. R.R. Co., 315 U.S. 698, 705 (1942). The
Montana Supreme Court also relied on Pope v. Ati.
Coast Line R.R. Co., 345 U.S. 379 (1953), where this
Court stated that FELA “establishes petitioner’s right
to sue in Alabama” for an injury in Georgia or
“wherever the carrier ‘shall be doing business,” Jd. at
382. See also Denver & Rio Grande W. R.R. Co. v.
Terte, 284 U.S. 284, 286--87 (1932) (similar).

Petitioner and supporting amici strenuously
dispute the Montana court’s reading of Miles, Pope,
and Terte because “not one of these cases so much as
mentioned personal jurisdiction under the Due
Process Clause.” Pet’r Br. 20. See also Brief for Amici
Curiae the Chamber of Commerce of the United
States of America, et al. (“U.S. Chamber Br.”) 16-17;
Brief of Amicus Curiae National Association of
Manufacturers (“NAM Br.”) 10-11.

3. The Solicitor General gives a fairer reading of these decisions:
“It may well be that the Court in those cases believed that a state
court hearing a FELA case could exercise personal jurisdiction

10

Although this Court’s opinions did not use
those terms, they may fairly be read as finding no
violation of “traditional notions of fair play and
substantial justice,” which are the objects of the due
process protection. International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). The Miles
Court, for example, concluded that plaintiffs pursuit
of her claim in the Illinois court, even if inconvenient
to the railroad, could not be enjoined as “inequitable
and unconscionable,” Miles, 315 U.S. at 705,
particularly where the railroad was “not merely
soliciting business but actually carrying on
railroading by operating trains.” Jd. at 702.

Likewise, in Pope, this Court rejected the
railroad’s claim that the state court suit be enjoined
as oppressive because the suit “subject[ed] it to the
burden and expense of defending the claim in a
distant forum.” 345 U.S. at 381. In Terte, this Court
allowed plaintiffs Missouri lawsuit despite the
railroad’s argument that jurisdiction based on doing
business in the state violated its Fourteenth
Amendment due process rights. 284 U.S. 285.4

over a defendant railroad doing business in the State.” Brief for
the United States (“U.S. Br.”) 23.

4 See also McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230
(1934), where a Tennessee resident who was injured in
Tennessee filed a FELA action in Alabama state court against “a
foreign corporation doing business in Alabama.” Jd. This Court,
in an opinion by Justice Brandeis, held that Alabama’s courts
were required to open their doors to plaintiffs suing under the
federal statute. Id. at 233-34. In Douglas v. N_Y., N.H. & H.R.
Co., 279 U.S. 377 (1929), plaintiff brought suit in a New York
court for injury sustained in Connecticut while working for
defendant, a Connecticut corporation, which was doing business
in New York. Jd. at 385. The Court, in an opinion by Justice

11

Clearly, a great many justices on this Court,
both in the majority and in dissent, did not perceive
fundamental unfairness in requiring railroads to
defend against FELA claims by injured railroad
workers in states where those companies conducted

railroading operations.

B. Historically, State Courts Have
Exercised Jurisdiction Over
Foreign Corporations Based on
Their Consent To Jurisdiction as a
Condition For Doing Business In
the State.

1. Jurisdiction based on registering to
do business and actually doing
business in the forum state has long
been an accepted basis for exercising
jurisdiction over foreign corporations.

One amicus in this case correctly observes that
Congress amended the FELA in 1910 in light of “then
current doctrine allowing states to hear cases against
corporations doing business within their borders.”
Stephen Sachs Br. 6. As Justice Scalia has noted, by
the late 19th century, courts had expanded their
jurisdiction over corporations beyond the state of their
incorporation using two theories: “consent” and
“presence.” Burnham v. Superior Court, 495 U.S. 604,
617 (1990) (plurality opinion). These theories are
closely intertwined, and, under both, the first question

Holmes, held that “the grant of jurisdiction in [FELA] does not
purport to require State Courts to entertain suits arising under
it but only to empower them to do so.” Jd. at 387 (emphasis

added).

12

to be determined was whether or not the corporation
was ‘doing business’ within a state.” 4 Charles Alan
Wright & Arthur R. Miller, Federal Practice and

Procedure § 1066 (4th ed.).

The consent basis for jurisdiction over foreign
corporations predated /nternational Shoe’s minimum
contacts standard and was well-accepted prior to the
adoption of the Fourteenth Amendment. Its rationale
is that, “[b]lecause the requirement of personal
jurisdiction represents first of all an individual right,
it can, like other such rights, be waived.” Ins. Corp. of
Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 703 (1982). Thus in Lafayette Ins. Co. v.
French, 59 U.S. (18 How.) 404 (1856), this Court
upheld the jurisdiction of an Ohio court to hear a suit
against an Indiana corporation with its principal
business office in Indiana. By voluntarily appointing
a registered agent to receive service of process on the
corporation’s behalf, service was effective “as if the
defendant were within the State.” Jd. at 407.

The Court returned to this issue in St. Clair v.
Cox, 106 U.S. 350 (1882), on review of a judgment
rendered by a Michigan court against an Illinois
corporation. Justice Field wrote for the Court that the
rule that corporations may be sued only in their state
of incorporation “was the cause of much inconvenience
and often of manifest injustice.” Jd. at 355. To remedy
this injustice, many state legislatures imposed as a
condition of doing business in the state, that foreign
corporations consent to the jurisdiction of its courts.

As Justice Field explained:

{[Wjhen a foreign corporation sent its
officers and agents into other states and
opened offices, and carried on _ its

13

business there, it was, in effect, as much
represented by them there as in the state
of its creation. As it was protected by the
laws of those states, allowed to carry on
its business within their borders, and to
sue in their courts, it seemed only right
that it should be held responsible in
those courts to obligations and liabilities
there incurred.

Id. (emphasis added). Such jurisdiction does not
violate “natural justice,” so long as process was
properly served on the designated agent. Jd. at 357.
Significantly, as indicated by the emphasized text, the
Court viewed a foreign corporation that not only
appointed a registered agent, but actually opened
offices and carried on business in the forum state, as
essentially at home there as in the state of its creation.

This Court has consistently upheld a state
court’s personal jurisdiction over a foreign corporation
where state law required appointment of an agent to
receive process, and the corporation did in fact
designate such an agent. See, e.g., Pennsylvania Fire
Insurance Co. v. Gold Issue Mining & Milling Co., 243
U.S. 93, 94-96 (1917). In Robert Mitchell Furniture Co.
v. Selden Breck Construction Co., 257 U.S. 213 (1921),
the Court indicated no federal impediment to construe
such consent to apply to conduct outside the forum
state if state law so provided. Again, in Neirbo Co. v.
Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939),
the Court upheld the exercise of general jurisdiction
over a foreign corporation based on the state's
business registration procedures, as such consent was
part of the bargain by which a corporation enjoys the
benefits of doing business in the state. Jd. at 175. See
also National Bank of N. Am. v. Assocs. of Obstetrics

14

& Female Surgery, Inc., 425 U.S. 460, 462 (1976)
(Rehnquist, J., concurring) (“Neirbo establishes that
petitioner National Bank could be deemed to have
consented to being sued in Utah by providing an agent
for service of process in that State or otherwise
qualifying to do business therein.”).

Moreover, “prior to Jnternational Shoe, the
general view seemed to be ‘that corporate presence,
once established, was sufficient to support jurisdiction
without regard to whether the claims arose from
activity inside or outside the state.” Walter W. Heiser,
General Jurisdiction in the Place of Incorporation: An
Artificial “Home” for an Artificial Person, 53 Hous. L.
Rev. 631, 636 & n.13 (2016) (quoting Alfred Hill,
Choice of Law and Jurisdiction in the Supreme Court,
81 Colum. L. Rev. 960, 980 n.94 (1981)); see, e.g.,
Tauza v. Susquehanna Coal Co., 115 N.E. 915, 917-18
(N.Y. 1917) (Cardozo, J.) (New York courts could
exercise personal jurisdiction over a nonresident
corporation which “is engaged in business within this
state” and the agent of which was properly served
within New York even though “the cause of action
sued upon has no relation in its origin to the business
here transacted.”).

Jurisdiction based on consent is in no way
inconsistent with MIJnternational Shoe, which
established that “if he be not present within the
territory of the forum,” 326 U.S. at 316, and “even
though no consent to be sued or authorization to an
agent to accept service of process has been given,” id.
at 317, the defendant may be subject to the state’s
jurisdiction based on “the quality and nature of [his]
activity” in relation to the forum. Id. at 319. In
Mississippi Pub. Corp. v. Murphree, 326 U.S. 438
(1946), decided shortly after International Shoe, this

15

Court held that a defendant “consenting to service of
process upon its agent residing in the southern
district, ... rendered itself ‘present’ there.” Id at 442.

Nor is such general jurisdiction based on
consent inconsistent with this Court’s decision in
Daimler AG v. Bauman, 134 S. Ct. 746 (2014). The
Daimler Court limited its discussion to general
jurisdiction over “a foreign corporation that has not
consented to suit in the forum.” 134 S.Ct. at 755-56.
See also, Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 928 (2011)). The notion that
consent jurisdiction is no longer viable after Daimler
would convert a waivable due process right to one that
is not waivable.

Such a holding would also cast grave doubt on
this Court’s precedents favoring enforcement of
contract provisions agreeing to arbitration, which this
Court has described as “a species of forum-selection
clause.” Allied-Bruce Terminix Companies, Inc. v.
Dobson, 513 U.S. 265, 289 (1995). Such provisions are
favored, AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 345-46 (2011), and agreements to submit to a
particular forum are broadly enforced, Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 591 (1991),
as part of “a broader right to select the forum for
resolving disputes, whether it be judicial or
otherwise.” Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 29 (1991). See also National Equipment
Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16 (1964)
(“[I]t is settled . . . that parties to a contract may agree
in advance to submit to the jurisdiction of a given
court”); Walter W. Heiser, Forum Selection Clauses in
State Courts: Limitations on Enforcement After
Stewart and Carnival Cruise, 45 Fla. L. Rev. 361, 378-

16

92 (1993) (examining forum selection provisions as a
waiver of objection to personal jurisdiction).

Corporations that register to do business in a
state and actually conduct business there assuredly
have “fair warning” they may be sued there and can
structure their conduct accordingly. See Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).

2. BNSF has_ consented to the
jurisdiction of Montana courts

Unlike the defendants in Daimler and
Goodyear,* BNSF applied for and obtained a license to
do business in the state and appointed an agent to
receive service of process there.® As the court below

> See Goodyear, 564 U.S. at 921; Bauman v. DaimlerChrysler
AG, No. C-04-00194 RMW, 2005 WL 3157472, at *6 (N.D. Cal.
Nov. 22, 2005).

6 BNSF applied for and was granted a Certificate of
Authorization, which empowered it to transact business in
Montana and vested it with “the same” rights and privileges “as
a domestic corporation of similar character,” including the
ability “to sue and be sued, complain and defend” in the Montana
courts. See Mont. Code Ann. § 35-1-1030(1)-(2); § 35-1-115.
Tyrrell v. BNSF Ry. Co., 2015 WL 5517415, at *12-13 (Mont. July
15, 2015) (Tyrrell/Nelson’s Consol. Answer Br.).

The Solicitor General notes that Respondents argued
that BNSF had consented to the state courts’ jurisdiction, but
that the “Montana Supreme Court declined to address that
argument.” U.S. Br. 4. This Court, of course, does “often affirm a
judgment on a ground not relied upon by the court below [if it
was raised below].” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
740 (1989) (SCALIA, J., concurring in part and concurring in the
judgment). See also Thigpen v. Roberts, 468 U.S. 27, 29-30 (1984)
(“([W]e may affirm on any ground that the law and the record
permit and that will not expand the relief granted.”).

17

emphasized, BNSF conducted substantial business in
the state.

Inexplicably, NAM claims that BNSF has
“never availed itself of Montana laws such that it
could be subject to lawsuits there.” NAM Br. 8. To the
contrary, in addition to the actions identified by
Respondents by which BNSF has “invokefed] the
benefits and protections of [Montana’s] laws,” see e.g.,
J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880
(2011)(plurality), BNSF (and _ its predecessor
Burlington Northern, Inc.) regularly appeared in
Montana courts to protect or advance its interests in
the state. Among the reported decisions are BNSF Ry.
Co. v. Shipley, 366 Mont. 542 (2012) (unpublished), in
which BNSF appeared as a plaintiff to recover unpaid
rent on property it owned; and Langemo v. Montana
Rail Link, Inc., 38 P.3d 782 (Mont. 2001) in which
BNSF as a defendant in a personal injury action along
with MRL, filed a counterclaim.

BNSF has also made use of Montana courts to
challenge or reduce state or county taxes levied on it.’
E.g., Schwinden v. Burlington N., Inc., 691 P.2d 1351
(Mont. 1984) (challenge to the Montana corporation
license tax); Burlington N., Inc. v. Flathead Cty., 575

Alternatively, as Respondents suggest, this Court may
deem it appropriate to remand this case to the Montana court in
light of the state law aspects of the consent analysis. Resp. Br.
50.

? BNSF is the second largest property taxpayer in Montana,
paying $17 million in 2015. Pat Corcoran, Northwestern and
Property Taxes, The Missoulian, Nov. 14, 2016, available online
at http://missoulian.com/news/opinion/columnists/northwestern-
and-property-taxes/article_40acdb6c-a5 1d-539d-b4bf-
3d0ed78137c0.htm!

18

P.2d 912 (Mont. 1978) (challenging county property
tax levy for teachers’ retirement fund); Burlington N.,
Inc. v. Richland Cty., 512 P.2d 707 (Mont. 1973)
(successfully challenging county tax for airport bond).
See also Burlington N., Inc. v. Montana Dep't of
Revenue, 781 P.2d 1121 (Mont. 1989) (upholding
subpoena of employee pay records in connection with
state income taxation on railroad employee earnings).

II. DuE PrROcESS Must BE MEASURED
AGAINST THE FACTS OF INDIVIDUAL
CASES.

A. Inflexible Jurisdictional Requirements
Do Not Serve Fundamental Fairness or
Substantial Justice.

“(T]he Due Process Clauses protect civil
litigants who seek recourse in the courts, either as
defendants hoping to protect their property or as
plaintiffs attempting to redress grievances.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 429 (1982).

Petitioner, however, argues that this Court’s
Daimler decision imposes a bright-line
“straightforward constitutional rule.” Petr Br. 4.
Petitioner's version of this rule would permit a state
court to assert general personal jurisdiction over a
corporate defendant only in the state where it is
incorporated or has its principle place of business or
has a “surrogate principal place of business,” a
reference to Perkins v. Benguet Consol. Min. Co., 342
U.S. 437 (1952). Pet'r Br. 24.

This Court has emphasized that due process “is
not a technical conception with a fixed content
unrelated to time, place and circumstances.” Cafeteria

19

& Rest. Workers Union, Local 473 v. McElroy, 367 U.S.
886, 895 (1961) (citations omitted). Indeed, the “very
nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable
situation.” Jd.

This Court has explained that with respect to
personal jurisdiction “few answers will be written in
black and white. The greys are dominant and even
among them the shades are innumerable.” Kulko v.
Super. Ct., 436 U.S. 84, 92 (1978). Due process simply
resists “clear-cut jurisdictional rules” and “talismanic
jurisdictional formulas.” Burger King, 471 U.S. at 485-
86.

Petitioner's inflexible, one-size rule cannot
provide the flexibility and fact-based assessment of
fairness that due process requires.

Mechanical or quantitative evaluations
of the defendant’s activities in the forum
could not resolve the question of
reasonableness: “Whether due process is
satisfied must depend rather upon the
quality and nature of the activity in
relation to the fair and orderly
administration of the laws which it was
the purpose of the due process clause to
insure.”

Shaffer v. Heitner, 433 U.S. 186, 204 (1977) (quoting
International Shoe, 326 U.S. at 319).

In International Shoe, this Court declared that
Due Process requires only that a defendant have
sufficient “contacts with the State such that the
maintenance of the suit does not offend traditional

20

notions of fair play and substantial justice.” /d. at 316
(internal quotation omitted). The Court did not
suggest that general jurisdiction over corporate
defendants warranted its own separate, bright-line
rule. Rather, the Court made clear that a corporation
may be subject to all-purpose jurisdiction when its
contacts with the forum consist not only of
“continuous activity of some sorts within a state,” but
contacts “so substantial and of such a nature as to
justify suit against it on causes of action arising from
dealings entirely distinct from those activities.” Jd. at
318 (emphasis added).

This Court in Daimler explicitly rejected the
rule advanced by BNSF here. 134 S. Ct. at 760
(“Goodyear did not hold that a corporation may be
subject to general jurisdiction only in a forum where
it is imcorporated or has its principal place of
business.”) (emphasis in original). Rather, the Court
reaffirmed the flexible standard it had set out in
International Shoe, looking to whether’ the
corporation’s “affiliations with the State are so
‘continuous and systematic’ as to render [it]
essentially at home in the forum State.” Jd. at 761,
(quoting Goodyear, 564 U.S. at 919 (emphasis added)).

B. Limiting General Jurisdiction to a
Corporation’s State of
Incorporation or Single Principal
Place of Business Does Not
Comport With Due Process.

BNSF insists that due process requires that it
be subject to general personal jurisdiction in only two
states. Pet’r Br. 23. See also NAM Br. 2 (“As a matter
of due process, a state can exercise general personal
jurisdiction over a business only where the business is

21

‘at home,’ namely its place of incorporation or
principal place of business.”)§; Chamber Br 9.
(similar).9

AAJ submits that little can be gained by
leaning heavily on the “at home” metaphor. Judge
Jerome Frank astutely warned that “danger lurks in
the literal use of a metaphor as if it were a complete
statement of actual fact rather than a sort of analogy
or ‘fiction ....” Larson v. Jo Ann Cab Corp., 209 F.2d
929, 932 (2d Cir. 1954). Indeed, a few years prior to
Daimler, Justice Kennedy pointed out that reliance on
the “stream of commerce” metaphor had carried the
lower court to an erroneous conclusion because “like
other metaphors, [it] has its deficiencies as well as its
utility.” Nicastro, 564 U.S. at 877.

1A Corporation’s State of
Incorporation Has Little Bearing on
the Fairness of Jurisdiction in the
Courts of that State.

In this case, BNSF rests on the “at home”
metaphor rather than address whether its
“continuous corporate operations within [Montana]

8 BNSF acknowledged below that under its proposed rule, “a
Montana resident, hired and employed by BNSF in Montana,
who was injured while working—even temporarily—for BNSF in
another state, would not be able to bring his action in the state
in which he regularly resides and where his employer regularly
conducts business.” T'yrrell v. BNSF Ry. Co., 373 P.3d 1, 7 (2016).

8 The United States espouses the position that a corporation can
be “at home” in multiple states, based on “contacts sufficient to
make the corporation at home in the State,” such that “it would
[not] be unfair to make the corporation answer for any and all
claims against it in the State’s courts.” U.S. Br. 28.

22

were ... so substantial and of such a nature as to
justify suit against it on causes of action arising” in
other states. International Shoe, 326 U.S. at 318-19.

For example, BNSF claims to be “at home” in
its state of incorporation, Delaware, despite the fact
that it conducts no operations there, owns no track
there, and has no employees there. See BNSF,
Operating Divisions Alignment Map, May 24, 2016.'°
Businesses select their state of incorporation for a
variety of reasons, many of which have little to do with
their actual business operations. See Lucian Bebchuk,
Alma Cohen & Allen Ferrell, Does the Evidence Favor
State Competition in Corporate Law?, 90 Calif. L. Rev.
1775 (2002) (analyzing the empirical evidence that a
state’s anti-takeover statutes and legal protection of
managerial interests influence the decision of where
to incorporate or reincorporate); Scott D. Dyreng,
Bradley P. Lindsey & Jacob R. Thornock, Exploring
the Role Delaware Plays as a Domestic Tax Haven, 108
J. Fin. Econ. 751, 761 (2013), available online at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=
1737937.

In 2007, nearly one million corporations were
incorporated in Delaware. See Lewis S. Black, Jr.,
Why Corporations Choose Delaware 1 (Del. Dep't of
State 2007), available at
https://corp.delaware.gov/pdfs/whycorporations_engli
sh.pdf. In fact, over 285,000 separate corporations
have their legal address at one address—a small office
building at 1209 North Orange Street in Wilmington,
Delaware. Heiser, 53 Hous. L. Rev. at 665 & n.162

'© Available at http://www.bnsf.com/customers/pdf/maps/network-
map.pdf.

23

(2016). Most of these corporations “have no office,
employees, or actual business operations” in
Delaware; “they simply have a dropbox.” Jd. at 665.

For BNSF to insist that it might reasonably
expect to be sued in Delaware by an injured rail
worker, but not in Montana, where it actually engages
in railroading operations is simply not credible.

2. Fundamental Fairness Does Not
Limit Jurisdiction to the Courts of a
Single Principal Place of Business.

Nor is it reasonable for BNSF to assert that it
can be “at home” based on its business activities in
only one other state, its “principal place of business.”

A large company like BNSF may engage in
activities in several states apart from its principal
place of business that may be sufficient to treat the
company as if it were a domestic corporation. See Judy
M. Cornett & Michael H. Hoffheimer, Good-Bye
Significant Contacts: General Jurisdiction After
Daimler AG v. Bauman, 76 Ohio St. L.J. 101, 151-55
(2015) (discussing several situations where the level
of a corporation's in-state activities justify general
jurisdiction in a state other than the principal place of
business). It may not only be difficult to identify a
major corporation’s principal place of business, but
the fact that a corporation might have more contacts
in another state “seems virtually irrelevant to any of
the convenience or fairness policies underlying the
imposition of general jurisdiction over a defendant” in
the forum. Lea Brilmayer, et al., A General Look at
General Jurisdiction, 66 Tex. L. Rev. 721, 742 (1988).

24

This Court has itself strongly suggested that a
company can be subject to general personal
jurisdiction in a state that is not its state of
incorporation or primary place of business, but in
which it conducts substantial activities. In Perkins,
the Benguet Consolidated Mining Co. was organized
in the Philippine Islands for the purpose of mining
and selling gold and silver. The company at no time
mined or sold gold or silver in Ohio. Its Philippine
operations had been interrupted by World War II and
had not resumed at the time suit was filed in 1947.
Perkins v. First Nat. Bank of Cincinnati, 79 N.E.2d
159, 165 (Ohio Com. Pl. 1948). The company’s
operations consisted of rehabilitating the mines,
activities which were conducted in the Philippines.
Equipment was purchased for this purpose outside of
Ohio. However, many of the purchase orders were
signed by the company’s president and general
manager, residing temporarily in Ohio, who also
“disbursed funds due employees to their relatives in
the United States when requested so to do.” Id. This
Court stated that Benguet was “at home” and subject
to general jurisdiction in Ohio because “Ohio was the
corporation’s principal, if temporary, place of
business.” Daimler at 756. But assuredly Benguet’s
Philippines operations were sufficient to deem that it
was essentially at home there as well, even aside from
its place of incorporation.

Daimler also indicated that a corporation may
be deemed sufficiently “at home” by virtue of its
substantial business operations in the forum. This
Court assumed, for purposes of its decision, “that
MBUSA ([Daimler’s American importer and
distributor] qualifies as at home in California.” 134
S.Ct. at 758. Because MBUSA was _ neither
incorporated in California nor had its principal place

25

of business there, id. at 761, the Court must have
assumed MBUSA to be “essentially at home” by virtue
of its continuous and systematic business operations
as “the largest supplier of luxury vehicles to the
California market.” 134 S. Ct. at 752. If MBUSA’s
contacts in California were not sufficient to make it
“essentially at home,” then the thrust of the Court’s
discussion — whether MBUSA’s California contacts
could be attributed to Daimler — was not at all

necessary.

BNSF argues that this case requires the same
result as Daimler because Montana has violated
BNSF’s “liberty interest in not being subject to the
binding judgments of a forum with which [BNSF] has
established no meaningful ‘contacts, ties, or
relations” Pet’r Br. 47 (quoting International Shoe,
326 U.S. at 319). Similarly, AAR argues that
affirmance of the Montana court’s ruling “would make
railroads susceptible to suit in jurisdictions having no
connection to the parties or the underlying cause of
action.” AAR Br. 8 (emphasis added). The Chamber
sees the decision below as exposing corporations “to
suit on claims having no connection whatever to the
forum State.” Chamber Br 20.

That is clearly not this case. The Montana court
summarized the extensive business operations BNSF
conducts in the state. Moreover, even if one accepts
the characterization of Texas as BNSF’s principal
place of business, the nature and quality of its
Montana contacts make it essentially at home there

as well.

For example, in the 2013 Annual Report BNSF
is required (under 49 U.S.C. § 11145) to file with the

26

U.S. Surface Transportation Board (STB)!!, BNSF
reported it owned 23,319 miles of track in the U.S. and
Canada. It owned 2,061 miles of track in Montana
(8.84% of the total), second unly to Texas, where BNSF
owned 2,856 miles (11.09%). Comparatively, in most
of the remaining 26 states and territories BNSF owns
far less track. In addition, track ownership
demonstrates the permanent and continuous nature
of BNSF’s contacts with Montana. BNSF cannot sell
or abandon track without first obtaining approval
from the U.S. Surface Transportation Board (STB).
See 49 U.S.C. § 11321 et seq; 49 U.S.C. § 10903 et seq.
Thus, BNSF’s contacts in Montana are precisely the
kind of contacts that render it as essentially at home

in Montana as in Texas.

3. The Nature of Defendant’s Contacts
With the Forum State and Their
“Relatedness” To the _ Litigation
Should Be A Factor In Assessing the
Fairness of Jurisdiction.

Goodyear and Daimler were cases in which
general jurisdiction was asserted over corporations
that had not consented to jurisdiction in the forum
and had only tenuous connections with the forum
through corporate affiliates. In this case, although
plaintiffs’ causes of action do not arise out of BNSF’s
railroading operations in Montana, they assuredly
“relate(] to the defendant’s contacts with the forum.”
Goodyear, 564 U.S. at 924. Plaintiffs’ causes of action

'' Available at Tab P-75 at:
https://www.stb.gov/econdata.nsf/f0395 2607 6cc0f8e8525660b00

6870c9/0c2ea96fedde56398525 7b4 1004c7d41?OpenDocument
OR http://www.bnsf.com/about-bnsf/financial-
information/surface-transportation-board-reports/#%23subtabs-

2 (page 96 of the pdf)

27

arise out of conduct in other states that mirrors
BNSF’s conduct in Montana. BNSF employees
engaged in those operations are covered by FELA and
may themselves bring FELA suits against BNSF in
Montana courts. The same allegedly negligent
practices and procedures at issue in this case also
affect Montana residents working in BNSF’s Montana
facilities and on BNSF’s Montana track.

Ill. FORUM SHOPPING PROVIDES NO
SUPPORT FOR NARROWING STATE
COURT JURISDICTION OVER
CORPORATE DEFENDANTS.

A. “Forum Shopping” Provides No Support
For Limiting the Jurisdiction of State

Courts Absent Demonstrable
Fundamental Unfairness To
Defendants.

Petitioner nevertheless insists that this Court
shut plaintiffs out of Montana state courts to combat
“rampant forum shopping” in Montana and
elsewhere. Petition 24. Amicus NAM similarly calls
upon this Court to reverse and “send a clear message
against improper forum shopping,” calling it
“jurisdictional gamesmanship” that threatens
“traditional notions of fair play and substantial
justice.” NAM Br. 16.

Beyond such rhetorical flourishes, however,
neither BNSF nor its supporting amici provide a
definition of “forum shopping” nor any explanation of
how adjudicating plaintiffs’ claims against BNSF in
Montana, where BNSF conducts _ substantial
railroading operations, deprives the corporation of
due process or substantial justice. Their use of “forum

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shopping” as an epithet does not assist this Court’s
analysis. See Friedrich K. Juenger, What’s Wrong with
Forum Shopping?, 16 Sydney L. Rev. 5, 13 (1994)
(“[T]here must be a stop put to the customary, almost
ritualistic, condemnation of forum _ shopping”);
Richard Maloy, Forum Shopping? What’s Wrong with
That?, 24 QLR 25, 25 (2005) (denouncing “rhetoric
[that] simply proclaimed, almost ipse dixit, that forum
shopping was wrong, without the _ slightest
explanation as to why.”)

“Forum shopping,” states the California
Supreme Court, is the “practice of choosing the most
favorable jurisdiction . . . in which a claim might be
heard.” California v. Posey, 82 P.3d 755, 774 n.12
(Cal. 2004) (quoting Black's Law Dictionary 666 (7th
ed. 1999)). The plaintiff is, of course, “the master of
the complaint.” Standard Fire Ins. Co. v. Knowles, 133
S. Ct. 1345, 1350 (2013); Lincoln Prop. Co. v. Roche,
546 U.S. 81, 91 (2005); Caterpillar Inc. v. Williams,
482 U.S. 386, 398—99 (1987), and is entitled to make
that choice. See, e.g., Boyd v. Grand Trunk W. R. Co.,
338 U.S. 263, 266 (1949) (“The right to select the
forum granted in [FELA § 56] is a substantial right. It
would thwart the express purpose of the Federal
Employers’ Liability Act to sanction defeat of that

right.”).

Plaintiffs’ counsel “would not be fulfilling their
legal duties towards their clients if they failed to make
use of jurisdictional options.” Markus Petsche, What's
Wrong with Forum Shopping? An Attempt to Identify
and Assess the Real Issues of A Controversial Practice,
45 Int'l Law. 1005, 1007 (2011).

Thus, as Justice Rehnquist observed, it is the
accepted “litigation strategy of countless plaintiffs [to]

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seek a forum with favorable substantive or procedural
rules or sympathetic local populations.” Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779 (1984).
Justice Robert Jackson, concurring in Miles, similarly
recognized that plaintiffs, who are given “choices of
tribunal,” make use of those choices to obtain
favorable courts and juries. 315 U.S. at 706—07
(Jackson, J., concurring).

As trial lawyers are well aware, the selection of
a favorable forum may turn on any of countless
interjurisdictional variations. AAJ would emphasize
that representation of rail employees pursuing FELA
claims is a_ specialized area of practice, and
practitioners are not evenly distributed throughout
the country. An injured worker’s counsel of choice may
practice in a different state. As well, some state courts
may be more experienced in presiding over FELA
cases. Trial in one state may also be more convenient
because the courthouse is nearer to plaintiffs home,
even though it is in an adjoining state. Injury may
occur in small or remote localities. The forum state
may promise a more expeditious disposition simply
because its docket is less crowded.

Another important decisional factor is the cost
of a jury trial. The right to have a claim tried by a jury
is “part and parcel of the remedy afforded railroad
workers” under FELA. Dice v. Akron, Canton &
Youngstown R.R., 342 U.S. 359, 363 (1952); Bailey v.
Cent. Vermont Ry., 319 U.S. 350, 354 (1943). Yet the
cost of jury fees can vary substantially from state to
state. For example, in Louisiana, the party requesting
trial by jury must deposit with the Clerk of Court
$2,000 for the first day of trial and $400 for each
additional day the trial is expected to last. LA. C.C.P.
art. 1734.1. In neighboring Texas, however, the clerk

30

of a district court is required to collect a jury fee of
$30. Tex. Gov’t Code § 101.0611(17). For a Louisiana
brakeman injured in Louisiana, who desires to try his
case to a jury, the option to file in Texas, where the
employer conducts substantial business, is, as the
Boyd Court stated, “a substantial right.” 338 U.S. at

266.

These advantageous choices for plaintiffs do not
impose unfair disadvantages on defendants. “Forum
shopping” that amounts to no more than “forum
selection” for legitimate advantage provides no
legitimate basis for limiting a party’s ability to choose
the most favorable forum in which to pursue his or her
claim. Cf., Carnival Cruise Lines, 499 U.S. at 591-96
(approving defendants’ use of forum selection clauses
in arbitration agreements).

For that reason, thoughtful scholars take the
view that forum shopping is an abuse to be combatted,
not where it yields an advantage to the plaintiff, but
only where it results in “the taking of an unfair
advantage of [the opposing] party in litigation.”
Maloy, supra, at 28; Petsche, supra, at 1008 (similar);
Juenger, supra, at 13 (similar).

BNSF has failed to make such a showing in this
case.

B. BNSF Has Not Established Any
Unfairness In Permitting Plaintiffs
To Bring Their FELA Actions In
Montana, Rather Than In the
Courts Of Delaware or Texas.

A FELA plaintiffs choice of state forum offers
little in substantive law advantage, because federal

31

law provides the substantive rules of liability. Urie v.
Thompson, 337 U.S. 163, 174 (1949). More basically,
unless a state’s law is fundamentally unfair to the
litigant, this Court has “no occasion to enquire by
what law the rights of the parties are governed” when
assessing the propriety of the choice of forum. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 247—48 (1981)
(quoting Canada Malting Co. v. Paterson Steamships,
Ltd., 285 U.S. 413, 419 (1932)). The differences BNSF
sets forth as reasons plaintiffs might choose to file
their FELA actions in Montana do not result in any
fundamental unfairness to defendants.

1. Montana’s application of FELA’s
statute of limitations is not
fundamentally unfair to BNSF.

BNSF complains that Montana courts apply
FELA’s three-year statute of limitations in a plaintiff-
friendly fashion. Pet’r Br. 11. See also NAM Br. 17
(“[T]he Montana Supreme Court has adopted a more
liberal interpretation of the statute of limitations than
several federal circuits.”). This Court has previously
indicated that the fact that a plaintiff has selected a
forum with the most favorable statute of limitations
“does not alter the jurisdictional calculus.” Keeton, 465
U.S. at 779. In addition, the fact that a state court’s
interpretation of FELA differs from that of some
federal courts does not speak to the “forum shopping”
claimed by BNSF in this case — plaintiffs’ decision to
sue in Montana rather than another state’s courts.
Finally, the Montana Supreme Court’s decision on
this matter, is firmly grounded in this Court’s FELA
precedent Urie, 337 U.S. at 174, as well as this Court’s
holding in McBride, 564 U.S. at 690. See also
Anderson v. BNSF Ry. Co., 354 P.3d 1248, 1260-61
(Mont. 2015), cert. denied, 136 S. Ct. 1493 (2016). If

32

that interpretation of the federal statute is in error,
the appropriate vehicle for correction is review by this
Court in the proper case, not a broad jurisdictional
rule closing the doors of state courts against FELA

plaintiffs.

BNSF also complains, “Once a complaint is
timely filed within the applicable statute of
limitations, Montana gives plaintiffs up to three
additional years to serve the complaint on the
defendant.” Pet’r Br. 10. It is difficult to discern what
advantage this rule bestows on plaintiffs in FELA
cases, where the defendant is seldom difficult to
locate. This procedure is unlikely to influence a
plaintiffs choice of forum.

2. Montana’s “suggestion” that FELA
damages may not be reduced for
plaintiff's preexisting condition is not
fundamentally unfair.

Petitioner also states, “Whereas railroad
defendants in other courts are entitled to have their
FELA liability apportioned to account for a plaintiff’s
preexisting conditions, the Montana Supreme Court
has strongly suggested that railroads cannot make
this defense.” Pet’r Br. 11, citing Anderson., 354 P.3d
at 1263-64.

This interpretation is firmly grounded in the
statutory text. As the Anderson Court pointed out,
Congress provided for apportionment of damages only
based on plaintiffs comparative negligence and for no
other reason. 354 P.3d at 1263. If this interpretation
is in error, the proper vehicle for relief is review by
this Court in the appropriate case, not closing the
doors of state courts to FELA plaintiffs.

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3. Montana discovery practice is not
fundamentally unfair to BNSF.

Petitioner states that “Montana does not
require discovery to be proportional] to the needs of the
case.” Pet’r Br. 10. In fact, although the Montana rule
does not use the term “proportional,” it tracks the
federal rule closely. The federal rule allows parties to
obtain discovery that is

[P]roportional to the needs of the case,
considering the importance of the issues
at stake in the action, the amount in
controversy, the parties’ relative access
to relevant information, the parties’
resources, the importance of the
discovery in resolving the issues, and
whether the burden or expense of the
proposed discovery outweighs its likely
benefit.

Fed. R. Civ. P. 26(b)(1).

By comparison, Montana’s rule requires the
court to limit discovery if

the burden or expense of the proposed
discovery outweighs its likely benefit,
considering the needs of the case, the
amount in controversy, the parties’
resources, the importance of the issues at
stake in the action, and the importance
of the discovery in resolving the issues.

Mont. R. Civ. P. 26(b)(2)(C).

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Any difference in discovery practice does not
render Montana’s rule fundamentally unfair.
Moreover, a difference in discovery rules between
Montana and federal courts is not relevant to BNSF’s
contention that plaintiffs should not be permitted to
sue in Montana, rather than other state courts.

4. Montana’s evidentiary rules
regarding expert testimony are not
fundamentally unfair.

Petitioner complains that Montana generally
does not follow the standards for expert witnesses set
out in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). Pet’r Br. 11. BNSF does not
explain how Montana’s rule is necessarily unfair to
defendants. And, once again, the distinction in
procedural rules between state and federal courts
does not speak to whether there may be potentially
unfair forum shopping among states where the
railroad is present and doing business.

5. Montana’s Rule Against Forum Non
Conveniens in FELA cases is not
fundamentally unfair.

Petitioner claims that it is disadvantaged
because the Montana Supreme Court “refuses to allow
motions to transfer FELA cases based on forum non
conveniens.” Pet’r Br. 10.

This Court has already established that a state
court “should be free[] to decide the availability of the
principle of forum non conveniens in these [FELA]
suits according to its own local law.” State of Mo. ex
rel. S. Ry. Co. v. Mayfield, 340 U.S. 1, 5 (1950). See
also Am. Dredging Co. v. Miller, 510 U.S. 443, 444

35

(1994) (The Jones Act, which incorporates FELA, 46
U.S.C. § 30104, permits state courts to apply their
local forum non conveniens rules.).

6. Montana's pro hac vice rules are not
fundamentally unfair.

The Chamber, in addition to its unsupported
claim that Montana “has become a magnet for FELA
suits given its plaintiff-friendly procedural and
substantive FELA law,” also complains that
“Montana has some of the strictest pro hac vice rules
in the country.” U.S. Chamber Br. 21.

BNSF has extensive railroading operations in
Montana and must be prepared to defend FELA suits
in Montana arising out of those operations. BNSF
certainly faces no greater difficulty retaining counsel
who are authorized to appear in Montana courts than
nonresident plaintiffs.

7. The fact that Montana permits FELA
suits by nonresident plaintiffs is not
fundamentally unfair.

Petitioner and supporting amici emphasize the
fact that plaintiffs “are residents of other states
(North Dakota and South Dakota) who never worked
a day in Montana.” Pet’r Br. 4. See also NAM Br. 18
(Complaining of asbestos claims in Illinois state
courts filed by nonresidents). However, this Court
made clear that “general jurisdiction to adjudicate has
in [United States] practice never been based on the
plaintiff ’s relationship to the forum.” Goodyear, 564
U.S. at 929 n.5. See also Keeton, 465 U.S. at 779
(plaintiffs are not required to have “minimum
contacts” with the forum State). Indeed, this Court

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has invalidated an agreement between a railroad
worker and his employer that purported to limit any
FELA action to “the county or district where I[ resided
at the time my injuries were sustained, or in the
county or district where my injuries were sustained”
as violative of the “substantial right” granted by
FELA for plaintiffs to select their forum. Boyd, 338
U.S. at 264 & 266 (1949).

CONCLUSION

For the foregoing reasons, AAJ urges this Court
to affirm the judgment of the Montana Supreme

Court.
Respectfully submitted,

Jeffrey R. White

Counsel of Record

American Association For Justice
777 6th St., NW

Washington, DC 20001

(202) 944-2839
jeffrey.white@justice.org
Attorney for Amicus Curiae

April 5, 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0712%3A15. Public record. Not legal advice.