Mallory v. Norfolk S. R.R. Co., Civ. A. No. 3 EAP 2021, Slip. Op. J-49-2021 (Pa. Dec. 22, 2021) may be one of the most cited decisions in Pennsylvania state courts these days, as defendants file an array of motions seeking dismissal of their clients for lack of personal jurisdiction in cases where the only nexus between the defendant and Pennsylvania is the defendant’s registration to do business in the Commonwealth. We previously blogged on this issue here and here, and we were hopeful that the bold statement made in Mallory would clarify the previously murky law on point, but the battle regarding consent jurisdiction rages on.
Mallory’s holding seems clear enough: Pennsylvania’s “statutory scheme is unconstitutional to the extent that it confers upon Pennsylvania courts general jurisdiction over foreign corporations that are not “at home” in Pennsylvania pursuant to Goodyear and Daimler.” Mallory, Slip. Op. at *38. Nevertheless, plaintiffs have repeatedly attempted to interpret it to apply only to those corporations with no “footprint” in Pennsylvania. See e.g. Emery v. U.S. Steel Corp., Civ. A. No. 210402850 (Ct. Com. Pl. Phila. Feb. 7, 2022) (Glynnis, J.) (granting defendant’s motion for reconsideration and reversing the previous decision denying preliminary objections based on lack of personal jurisdiction); Stapelton v. U.S. Steel Corp., Civ. A. No. 200101462 (Ct. Com. Pl. Phila. Feb. 22, 2022) (Crumlich, J.) (denying motion for summary judgment on procedural grounds but directing defendant to file a motion for reconsideration based on Mallory).
Instead of addressing this strained interpretation directly, some judges have managed to avoid it entirely by finding some very thin theory of specific jurisdiction even in those cases initially brought under a theory of general consent jurisdiction. Daniels v. CSX Corp., Civ. A. No. 180800363 (Ct. Com. Pl. Phila. Apr. 4, 2022) (denying motion for reconsideration brought under Mallory because the original preliminary objections asserted that both general and specific jurisdiction was lacking, even though the complaint alleged to basis for specific jurisdiction); Addison v. U.S. Steel Corp., Civ. A. No. 201201236 (Ct. Com. Pl. Phila. May 5, 2022) (agreeing that reversal of previously overruled preliminary objections was proper under Mallory).
Jurisdictions outside of the Commonwealth cannot agree either. There is currently a split among state supreme courts that have reviewed the issue and a 6-5-2 split among federal courts of appeals which have weighed in on the question of consent jurisdiction by registration. For instance, the Pennsylvania Supreme Court’s ruling in Mallory conflicts with the Georgia Supreme Court’s ruling from just three months earlier in Cooper Tire & Rubber Co. v. McCall, 312 Ga. 422 (2021) which we discussed here.
The Mallory song and dance seems to be such that even the U.S. Supreme Court has noticed. On April 25, 2022, the U.S. Supreme Court granted certoriari to perhaps finally clarify, once and for all, whether general jurisdiction extends to corporations whose only nexus with the forum state is the registration to do business. Mallory v. Norfolk Southern Rwy. Co., Civ. A. No. 21-1168 (cert. granted Apr. 25, 2022). The Supreme Court’s decision will have a tremendous impact not only on jurisdictional jurisprudence going forward, but also on the swollen dockets of the Philadelphia Court of Common Pleas. Until Mallory, plaintiffs have been able to use general jurisdiction by consent to haul foreign defendants into what is considered one of the country’s premier judicial hellholes. Whether under Mallory this will continue remains to be seen. Stay tuned for further updates as state courts grapple with jurisdiction by consent while balancing their overloaded post-COVID dockets and awaiting the Supreme Court’s guidance.