Case of the Day: Mallory v. Norfolk Southern Railway

Supreme Court building in the evening
Credit: Joe Ravi (CC BY-SA)

The case of the day is Mallory v. Norfolk Southern Railway Co. (S. Ct. 2023). I love this case. On my very first day of law school, my very first class was civil procedure. The professor was the excellent Martha Minow. She told a story about running into someone down on his luck. He greeted her and asked if she remembered him. She didn’t. “But I was one of your civil procedure students!” he said. She expressed some doubt, but he said, “No, really! I remember your class. Pennoyer versus Neff!” Pennoyer v. Neff, the kind of case only a civil procedure student would know. It was the subject of that class, as we began to study the history of the constitutional law of personal jurisdiction.

Martha Minow
Martha Minow. Credit: Harvard Law Record

Pennoyer: under the Constitution, a state law can not authorize the state’s courts to exercise personal jurisdiction over persons served with process outside the state’s territory. International Shoe: Pennoyer doesn’t really make sense for corporations, which are artificial persons that are, in a sense, in many places at once; they can be sued in any state where they have sufficient minimum contacts. Volkswagen/Burger King/Asahi: Don’t go crazy, just putting something in the stream of commerce that ends up in a state isn’t enough, or just foreseeing the possibility of a suit is not enough.

Lord Denning. Credit: Clmass (CC BY-SA)

After that, things kept moving in the same direction in the early 21st century. Goodyear: a corporation is only subject to general jurisdiction in the states where it is “at home.” Daimler: it’s only “at home” where incorporated or where it has its headquarters. From the heights of personal jurisdiction in the mid-20th century, the courts have been cutting back their own jurisdiction. The trend is similar to the trend towards curtailing the extraterritorial reach of US laws. I’ve always been a little baffled. Lord Denning once said: “As a moth is drawn to the light, so is a litigant drawn to the United States.” You could see this as a critique of the United States or a critique of litigants. But it should be an inspirational motto. They should translate it into Latin and put it on the seal of the Administrative Office of the US Courts. Why should not our courts compete to provide litigants with the most effective remedies, to attract judicial business to the United States? Our law is one of our main sources of soft power. Besides, nothing is more traditional and historically well-grounded than courts competing with each other for business. “Courts competing with each other for business” is probably one of the shortest explanations for a lot of English legal history that one could write. And courts and tribunals all over the world are competing for business today, with new English-language commercial courts, new European patent courts, and lots of arbitral tribunals popping up everywhere. Why shouldn’t we prefer to have as much of the world’s dispute resolution business as we can win, consistent with our laws and the Constitution?

Anyway, on to Mallory. Mallory was a railway worker who worked for Norfolk Southern for decades in Ohio and Virginia. After he left the company, he moved to Pennsylvania, and later to Virginia. He claimed that he suffered from cancer because he had been exposed to dangerous conditions working for the railroad, doing things like spraying pipes with asbestos and demolishing cars that contained carcinogens. He sued in a state court in Pennsylvania under the Federal Employers’ Liability Act. Norfolk Southern had registered in Pennsylvania under that state’s law requiring out-of-state companies doing business there to agree to appear in Pennsylvania courts on any cause of action against them. Norfolk Southern claimed that the statute requiring it to consent to jurisdiction as a condition of doing business in Pennsylvania violated the Due Process Clause, and that the Pennsylvania court could not exercise personal jurisdiction over it.

Justice Gorsuch
Justice Gorsuch

In a complicated split decision, Justice Gorsuch, joined by Justices Thomas, Alito, Sotomayor, and Jackson, rejected the railroad’s argument and held that the Pennsylvania statute was constitutional. The court held that the plaintiff’s lack of connection to Pennsylvania was neither here nor there. Justice Gorsuch observed that everyone agrees that a natural person can be subject to jurisdiction in any state where he is found, without raising any jurisdictional difficulty. Why, he writes, should the Due Process Clause impose a higher burden on suits against corporations than it does on suits against natural persons? That was the conclusion of the Court (not in so many words) in an early case, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), and the Court held that Pennsylvania Fire is still good law and dictated the outcome in Mallory.

Justice Barrett
Justice Barrett

The dissent by Justice Barrett, joined by the Chief Justice and Justices Kagan and Kavanaugh, argued that the outcome the court reached was contrary to Daimler, the case that had drastically cut back general jurisdiction over corporations. The dissenters seem to regard a state’s requirement that foreign corporations consent to jurisdiction as some sort of ruse to get around constitutional limits. I don’t see why that should be so. Personal jurisdiction is a waivable personal defense. (This was the main point in Justice Jackson’s concurrence). Nor is this the only instance where consent is important even when the party may not really have consented in the sense of enthusiastic acceptance: consider consent to consumer contracts containing agreements to arbitrate, which similarly implicate waivable constitutional rights, namely the right to trial by jury.

What I particularly like about Justice Gorsuch’s opinion (and here he was writing only for four justices) was his take on International Shoe. That case did not, as is sometimes thought, hold that general jurisdiction and specific jurisdiction are the only two pathways to jurisdiction over a corporation. Consent is always a basis for personal jurisdiction, and it wasn’t discussed in International Shoe simply because there was no argument that the defendant had consented to jurisdiction. I’ve never thought about it that way, but that seems 100% right to me. Consent is always a basis for personal jurisdiction, even in the absence of any ties with the forum. (And Mallory is hardly a case where the defendant had no ties with the forum).

I hope Mallory will prove to be a necessary course correction.1 It is doctrinally sound, because it recognizes consent as a historical basis for jurisdiction, and it levels the playing field to some extent between individual and corporate defendants. And I think it may signal a trend away from the kind of retreat from the world that we’ve seen over a long stretch in the law of jurisdiction as well as in the law on extraterritoriality. As Maggie Gardner suggests, the recent decision in  Yegiazayran v. Smagin may be the start of recognizing that comity does not always mean deferring to foreign courts, but can sometimes mean acting in a way that foreign states might appreciate (for example, by giving foreign litigants with arguably foreign injuries as much of a forum to sue defendants in the US as US plaintiffs with US injuries have to sue foreigners).

I’ve written this post kind of broadly, but I do think this is a hopeful moment for the renewed recognition that it’s a good thing to have our courts involved all kinds of disputes, even those with cross-border aspects (where borders can be between Pennsylvania and Ohio or between the United States and Mexico). Time will tell!

  1. Justice Alito’s concurrence gives me pause. He thinks that the outcome is right assuming the permissibility of Pennsylvania’s law, but he thinks states should not be able to enact such laws. So there is a real risk that a later case that focuses on the Commerce Clause issues of concern to Justice Alito could render Mallory a footnote.

2 responses to “Case of the Day: Mallory v. Norfolk Southern Railway”

  1. Linda Silberman

    I found the Supreme Court decision shocking and the praise for it unwarranted. It is a complete circumvention of Daimler, which the majority doesn’t really deal with except to say it is not about consent. And neither is Burnham about consent, which most scholars thought would be overruled after Daimler and instead it is the central theme of the opinion. This is the kind of forum shopping that Daimler sought to limit, although Daimler involved a foreign defendant. Even Justice Sotomayor did not dissent in Daimler but thought it should be decided on grounds of “unreasonableness”, which the majority in Daimler did not think applied in general jurisdiction cases. If there was to be course correction at all, perhaps it could be based on the existence of an office (which the railroad had here) and which would lend greater voluntary control to defendants as to when they might be subject to general jurisdiction. But the Supreme Court announced a more extreme rule in Daimler. Prior to Daimler, I had urged a bricks and mortar approach as a correction to broad general jurisdiction (existence of an office is the English rule for general jurisdiction). Almost no country has the broad doing business jurisdiction that the U.S. had pre-Daimler and is now resurrected in the form of this fictional consent. Maybe foreign defendants just won’t register so it won’t really affect the transnational cases.
    But this kind of forum shopping even re U.S. defendants is unfortunate. We should have fixed specific jurisdiction and not returned to general jurisdiction via mandated fictional consent by states. Maybe we will see this issue revisited in the form of a commerce clause challenge per Alito, but I think it was a due process violation as the compelling dissent explained.
    Linda Silberman, Clarence D. Ashley Professor of Law, Emerita, New York University School of Law

    1. Linda, thanks for the comment! You are in good company with Chief Justice Roberts and Justices Kagan, Kavanaugh, and Barrett. I think you’re right that the rule of this case doesn’t really line up with the rule in many other jurisdictions, but neither does our rule of “tag jurisdiction.” I tend to agree with Justice Gorsuch that if we aren’t up in arms about the one, it’s hard to see why we should be up in arms about the other.

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