Mallory v. Norfolk Southern Railway Co., docket number 21-1168 originating from the Supreme Court of Pennsylvania, has far-reaching implications which could impinge on the booming forum-shopping industry.  Any defendant who has a good-faith defense to the personal jurisdiction of the court they find themselves in, especially a lawsuit filed in a forum to which neither plaintiff nor defendant has any connection, should avoid waiver of the defense through whatever means are appropriate while we await the Justices’ decision. We expect the opinion to be released sometime in early 2023.     

The case will proceed to oral argument before the Supreme Court of the United States on November 8, 2022. Closing stages of briefing have begun, and over the coming weeks, the justices will have their opportunity to review and prepare the questions they will volley toward advocates appearing before them in November. Below is a brief overview of the respondent Norfolk Southern’s brief filed in late August, and a summary of positions urged by friends of the court.    

Background  

Norfolk Southern is a railway company which was “at home” in Virginia at the time of filing of this lawsuit. Robert Mallory, a Virginia citizen, worked for the railroad in Virginia and Ohio from 1988 to 2005. He claims that he developed cancer because of toxic exposures at work, and sued the railroad in an FELA claim filed in Philadelphia’s Court of Common Pleas. Plaintiff’s lawsuit attempted to fix jurisdiction in Pennsylvania via the state’s long-arm statute, pleading that because Norfolk Southern registered to do business in Pennsylvania, where it operates thousands of miles of track, the railroad had consented to personal jurisdiction for all purposes and for all claims.  There was no other connection to conduct which occurred in Pennsylvania. The trial court dismissed the suit for lack of personal jurisdiction, holding that Pennsylvania may not require an out-of-state corporation to submit to general jurisdiction as a condition of doing business in Pennsylvania. The highest court in Pennsylvania affirmed that decision, holding that registration to do business is not “voluntary consent” to all-purpose general jurisdiction in the state. Mr. Mallory appealed and the cause was taken up by the US Supreme Court.   

Respondent Norfolk Southern’s Arguments 

Mr. Mallory’s petition and associated briefing in support is discussed in further detail in Maron Marvel’s July 22 article outlining the precedent which could be impacted by Mallory’s position if it is adopted by the Supreme Court.   

In response, Norfolk Southern argues that due process and the 14th amendment do not allow a state to assert general personal jurisdiction over a foreign corporation simply because it registers to do business there as required by state law.   

Respondents note that all 50 states require out-of-state corporations doing business within a state to register with the state as a condition for doing business in the state. However, the Commonwealth of Pennsylvania’s statute is unique in that it explicitly treats registration to do business in the Commonwealth as grounds for general jurisdiction.     

Norfolk Southern argues Pennsylvania’s statute is a relic of a bygone era, and that allowing it to stand would revive such a scheme in any other state which might wish to allow litigants to haul out-of-state defendants into state courts on claims with no connection to that state other than the corporation’s registration to do business. Norfolk Southern further argues that the result urged by Mr. Mallory would essentially invalidate the Court’s entire line of cases which have guided the application of personal jurisdiction rules  in state court, reaching back to 1945’s International Shoe opinion up to 2021’s Ford v. Mont. Eighth Judicial District Court case.  Norfolk Southern urges the court to affirm Pennsylvania’s highest court’s opinion through the following five main arguments:     

• Coercive state requirements to register do not constitute consent to general jurisdiction.  Only “true consent” can waive a personal jurisdiction defense, with well-defined words or deeds which can form a basis for waiver.  Appellants ask the Court to find registration is “implied consent,” which Norfolk Southern urges the Supreme Court to reject.   

• Pennsylvania’s statute is in direct contradiction to the general jurisdiction principles annunciated in International Shoe, Daimler, and other more-recent cases on the topic, and is unconstitutional whether or not there has been consent.  It creates problems with federalism, interfering with other states’ ability to adjudicate claims, and invites forum-shopping.   

• Pennsylvania’s statute requires defendants to forfeit a constitutional right to due process or risk breaking state law.   

• Mallory’s attempt to revive Pennsylvania Fire, a Pennoyer v. Neff -era jurisdiction opinion set aside by International Shoe, relies on concepts of service of process, not jurisdiction, and further relies on concepts of implied consent and presence which were invalidated by International Shoe.   

• Mallory’s argument, that concepts of “original public meaning” applied to 19th-century registration statutes ought to give rise to all-purpose general jurisdiction, does not square with the historical facts that most states’ laws were limited to claims with a forum connection.  

Amici in Support of Respondent Norfolk Southern 

Numerous amicus briefs from law professors, trade organizations, and governments have been filed in support of Norfolk Southern’s position, and the highlights are outlined briefly below with links to their briefs.   

• The United States Government  

• The Government filed an amicus brief and requested leave for the solicitor general or its designee to participate in oral argument. The Government states it has an interest in state court jurisdiction because the limits on state court jurisdiction often apply to suits brought by the federal government, noting that FELA is a federal statute.   

  • Notably, the Government also urges the court to limit its decision to state courts’ exercise of general personal jurisdiction, and disregard Mallory’s citation of federal statute 18 U.S.C. 2334(e). This statute provides that the Palestinian Authority, PLO, and any affiliated organization has consented to suit in the US for claims brought by US nationals due to acts of international terrorism, under certain conditions. The Government urges the court to find Petitioner’s citation of this federal law inapposite, so that application of federal law is not disturbed by the Court’s opinion.    

• The Government has also filed a consent motion to enlarge the time for argument to 70 minutes, with 35 minutes allotted for petitioner, 20 for respondent, and the remaining 15 allotted to the United States.   

• Commonwealth of Virginia, joined by Alaska, Arkansas, Idaho, Indiana, Montana, New Hampshire, and South Carolina  

• The brief filed by these states expresses the federalism issues raised by Norfolk Southern in terms personal to the states’ interests and further describes how the states’ interests in maintaining their sovereign adjudicatory power might be curtailed by a ruling in favor of petitioner.   

• Professor Lea Brilmayer professor of International Law at Yale Law School  

• Professor Bilmayer urges the court to dismiss the writ as improvidently granted because, she states, Pennsylvania’s statutory scheme never explicitly mentions “consent” and so the “question presented” is not raised by this set of facts.  Instead, she urges the court to grant certiorari in a companion case, Cooper Tire & Rubber Co. v. McCall, originating in Georgia. Georgia’s Supreme Court found that registration in Georgia to do business amounted to consent by the corporation to all-purpose general jurisdiction in Georgia state courts.     

• Washington Legal Foundation  

• In addition to its support for Norfolk Southern’s underlying arguments, the Foundation points out that Mallory did not raise his “original meaning” arguments in the lower courts, and so they should be ignored in this appeal. 

What to Watch 

On November 8, 2022, interested parties may stream live audio of the arguments via the Supreme Court’s Oral Argument livestream. 

Meanwhile, the federalism, due process, and public policy concerns raised by briefing in opposition to petitioner ought to be given considerable weight.   Defendants should take these arguments into consideration when advancing any future or pending personal jurisdiction objection.  The issues raised by Norfolk Southern and amici are worthy of notice even in the absence of a binding decision on the topic, which will not come for many months after November’s arguments.

Maron Marvel has dedicated a team of attorneys to monitor personal jurisdiction challenges within the states. If you have any questions about these articles, please contact, please contact Stephanie Fox at [email protected].

Disclaimer: The information in this publication should not be considered legal advice, is not a substitute for legal counsel, and should not be relied on as such. In some jurisdictions, this is considered advertising.