Shawn Miller

Professor of Practice

a Blast from the Past of Personal Jurisdiction in Mallory v. Norfolk Southern V.

Mallory v. Norfolk Southern Railway Co. continues seventy years of sharply divided Supreme Court cases considering the scope of state court power to adjudicate disputes involving out-of-state defendants—the question of personal jurisdiction . In 1945, in International Shoe Co. v. Washington, the Court held that in order to subject a person not present in a state to personal jurisdiction, all that due process requires is for that individual to “have certain minimum contacts with [that state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice . ’” Years later, the Court held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe” and “that prior decisions inconsistent with this standard” are overruled . What is and is not inconsistent with International Shoe was at the heart of the disagreement in the 5–4 decision in Mallory .

After working for Norfolk Southern in Ohio and Virginia for twenty years as a freight-car mechanic, Robert Mallory left the company and moved to Pennsylvania and then later back to Virginia Along the way, Mr Mallory developed cancer, which he believed was the result of exposure to hazardous materials at Norfolk Southern . He sued Norfolk Southern in Pennsylvania state court . The company responded that Pennsylvania courts lacked personal jurisdiction over it for this claim

Norfolk Southern appeared to have a strong case . Blackletter law divides personal jurisdiction into two categories: specific and general jurisdiction . General jurisdiction allows a state’s courts to adjudicate “any and all claims” against a defendant . But general jurisdiction only exists where the defendant is “at home,” and a corporation is only “at home” in its state of incorporation and principal place of business . For Norfolk Southern, this meant that its sole “at home” state was Virginia .  Specific jurisdiction allows a state court to adjudicate claims over defendants at home in other states, but only if those claims arise out of or relate to the defendant’s contacts with the forum state Because Mr Mallory’s claim was based on activities and injuries in Virginia and Ohio, Pennsylvania courts also lacked specific jurisdiction over Norfolk Southern .

Justice Alito explained that he agreed that the Supreme Court’s unanimous 1917 decision in Pennsylvania Fire was controlling . In that case, an Arizona company sued a Pennsylvania insurance corporation in Missouri for a claim arising from an insurance contract issued in and protecting property located in Colorado .  Missouri law required out-of-state insurance companies doing business in the state to agree to appoint a state official to serve as the company’s agent and to agree that it would accept service on that official as valid in any suit . The defendant complied with that statute, and the Court held that Missouri’s scheme could be construed as express consent to jurisdiction and therefore not a due process violation

Two additional facts, however, offered Mr .  Mallory a path forward in his chosen forum .  Under Pennsylvania law, foreign corporations agree to appear in its courts on “any cause of action” when they register to do business in the state, and Norfolk Southern had been so registered in Pennsylvania for over twenty years .  In 2021, the Pennsylvania Supreme Court held that the state law’s conditioning of registration on consent to general jurisdiction violated the Due Process Clause . The same year, the Georgia Supreme Court decided that a similar condition on registered foreign corporations was constitutional . This split spurred the Supreme Court to grant certiorari in Mallory .

Justice Gorsuch wrote for the Court, joined by Justices Thomas, Alito, Sotomayor, and Jackson But Justice Alito, the fifth and deciding vote, only joined in part . In his separate concurrence,

Justice Alito joined the rest of the majority in stressing that consent has been recognized as a valid and distinct basis for personal jurisdiction not only in Pennsylvania Fire, but throughout the country’s history . Thus, five justices agreed that Pennsylvania Fire was consistent with the standards set forth by International Shoe and its progeny; the latter cases do not implicate consent but rather “involve constitutional limits on jurisdiction over non-consenting corporations . ”

The portion of Justice Gorsuch’s opinion that Justice Alito did not join expands upon the rationale for this narrow holding . Justice Gorsuch argued that jurisdiction over Norfolk Southern is consistent with the historical development of state business registration statutes He also noted that individuals may be hailed into a state’s courts on any claim if they are served with process while in that state, and he seemed to argue that allowing states to “tag” foreign corporations through their registration statutes equalizes the courts’ power over individuals and entities .

In her separate concurrence, Justice Jackson stressed that another pre-International Shoe decision, Insurance Corp. of Ireland, held that the personal jurisdiction requirement is an individual, waivable right . Further, she explained that waiver can be explicit or implicit .  Finally, she argued that Norfolk Southern was not compelled because registration is only required “when corporations seek to conduct local business in a ‘regular, systematic, or extensive’ way . ”

Justice Barrett’s dissent, joined by Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh, began by asserting that International Shoe established a now-settled rule that the Due Process Clause precludes state courts from asserting general jurisdiction over foreign defendants simply because they do business in the state . Justice Barrett argued that the Court’s general personal jurisdiction precedents had restricted a corporation’s home to its principal place of business and state of incorporation, and that allowing states to avoid these holdings simply by requiring consent as a condition of doing business in the state would effectively overrule them in practice Justice Barrett’s dissent also contested whether the Pennsylvania statute could be said to constitute consent “in a conventional sense of the word . ” Further, she explained that the Due Process Clause protects not just the rights of defendants, but the rights of the states in our federalist system to be free from encroachment on matters that properly belong to them . Since Pennsylvania Fire was inconsistent with these embedded principles, she reasoned, it had already been overruled

It remains to be seen whether the dissent is correct that Mallory will eviscerate limits on jurisdiction over corporations engaged in interstate business and will produce an explosion of forum shopping Five justices agreed that the Pennsylvania statute did not violate the Due Process Clause . However, Justice Alito expressed his view that the Pennsylvania statute likely does violate the structure of the Constitution and in particular the dormant commerce clause . The case has been remanded to the Pennsylvania Supreme Court to consider these arguments . Thus, we might see Mallory back in the Supreme Court in the near future