As we have previously observed, the limits of personal jurisdiction, as the outcome of a dispute is strongly influenced by where a case is filed. Since the Supreme Court upheld the narrow limits of general jurisdiction in Goodyear Dunlop Tires Operations, SA vs. Brown564 US 915 (2011), and Daimler AG versus Bauman571 US 117 (2014), plaintiffs, ever eager to engage in litigation tourism, doggedly attempted to expand the boundaries of specific jurisdiction, as we have pointed out here, hereand herefor example.
But, because general jurisdiction – which allows a defendant to be sued on any claim, even if it has no connection with the forum state – is much more powerful, plaintiffs have devoted considerable part of their efforts to promote an expansive theory of competence by consent. Plaintiffs’ theory is that a corporate defendant voluntarily submits to the general jurisdiction of a state by registering to do business in that state. Since nationally operating corporations such as drug and device makers are registered to do business in each state, adopting the plaintiff jurisdiction-by-registration theory would effectively repeal Happy new year and Daimlerwho concluded together that a company is subject to general jurisdiction only where it is incorporated or has its registered office.
More States dismissed jurisdiction by record. The next mandate, in Mallory v Norfolk Southern Railwayno. 21-1168, the Supreme Court decide whether the theory is consistent with due process.
Until then, the lower courts continue to consider the theory. Today we report on Bradley vs. Globus Medical, Inc.2022 WL 2373441 (Wash. Ct. App. 2022), in which the Washington Intermediate Court of Appeals ruled in a medical device case that registration to do business in a state does not constitute consent to jurisdiction in this state.
Bradley is odd in that the plaintiff argued that registration to do business in Washington constituted consent to specific rather than the general skill there. This argument makes no sense because a plaintiff can establish specific jurisdiction, whether or not a defendant is registered to do business in a state, if the plaintiff’s claim arises out of or relates to the defendant’s conduct in the State, what it must do for there to be a specific jurisdiction. The Bradley the plaintiff presumably claimed specific rather than general jurisdiction because an earlier case in Washington, Equip. Washington Mfg. Co. c. Concrete Placement Co.., 931 P.2d 170 (Wash. Ct. App. 1997), flatly excludes any argument of general jurisdiction by registration. And she presumably relied on the defendant’s registration to do business in Washington because her claims did not arise from the defendant’s conduct in the state. In other words, the plaintiff was effectively arguing for general jurisdiction when he purported to be arguing for specific jurisdiction.
The wrong direction didn’t matter. Taking the applicant’s argument at face value, the Bradley The court rejected the claim that registration to do business in a state constitutes consent to a specific jurisdiction in that state.
As the court noted, “[d]This process requires that three elements be present for a court to exercise specific jurisdiction: (1) that there are intentional “minimal contacts” between the defendant and the forum state; (2) that the plaintiff’s injuries “arise out of or relate to” those minimal contacts; and (3) that the exercise of jurisdiction is reasonable, that is, that jurisdiction is consistent with the notions of “fair play and substantial justice”. 2022 WL 2373441, at *3 (citing Burger King Corp. against Rudzewicz471 US 462).
The court held that simply registering to do business in a state did not satisfy either of the first two elements.
Citing Walden v. Fiore571 US 277 (2014), the court held that registration by itself does not establish sufficient “minimum contact” with a state because “[a] The company could be qualified to do business in states in which it never conducts business or establishes a presence beyond appointing a registered agent. 2022 WL 2373441, at *3.
And, the court said, registration to do business does not mean that a claim arises out of or relates to a company’s conduct in the state. The court held that even if the plaintiff had alleged that her surgery was performed in Washington, that alone would not meet the standard arising out of or relating to because she “did not speculate on how the hardware and screws would have been designed and manufactured by [the defendant] came to be used in his operation through deliberate contact with Washington. 2022 WL 2373441, at *3. “The fact that [the defendant] is registered to do business in Washington does not fill this gap,” the court said, because “being registered does not mean that a corporation has operations in Washington or a presence beyond its registered agent.” Identifier.
The consensus against jurisdiction by registration continues to hold. Check back later this year to find out how the Supreme Court decides Mallory.