Fourteenth Amendment: Due Process
BNSF Railway Co. v. Tyrrell
Since International Shoe Co. v. Washington,1×1. 326 U.S. 310 (1945). the Supreme Court has framed personal jurisdiction as a due process doctrine prohibiting courts from hearing claims against a defendant who lacks certain minimum contacts with the forum state.2×2. See, e.g., Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The doctrine takes two basic forms: âspecific jurisdiction,â which attaches when a suit arises from the defendantâs contacts with the forum state, and âgeneral jurisdiction,â which allows courts to hear any claim against a defendant with âcontinuous and systematicâ forum contacts.3×3. Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 414â16, 414 nn.8â9 (1984). Since 2011, the Court has decided two cases that narrowed general jurisdiction for suits involving corporate defendants, permitting it only in states where the corporation is âessentially at home,â which effectively means its principal place of business or place of incorporation.4×4. See Daimler AG v. Bauman, 134 S. Ct. 746, 761 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 924 (2011). Last Term, in BNSF Railway Co. v. Tyrrell,5×5. 137 S. Ct. 1549 (2017). the Supreme Court continued this trend by denying Montanaâs courts general jurisdiction over a defendant that had continuous and systematic contacts with the state but was not essentially at home there.6×6. See id. at 1559. By demonstrating much more bluntly than its predecessors just how much the at-home test has altered general jurisdiction, BNSF highlights a number of problems with the newly narrowed doctrine and will likely exaggerate these problems as courts interpret and apply the caseâs reasoning.
BNSF Railway Company is a Delaware corporation whose principal place of business is Texas.7×7. Id. at 1554. Around 10% of BNSFâs revenue ($1.75 billion in 20138×8. Joint Appendix at 37, BNSF, 137 S. Ct. 1549 (No. 16-405). ) comes from Montana, where it employs over 2100 people (under 5% of its workforce) and owns over 2000 miles of railroad track (around 6% of its total mileage).9×9. Id. at 26â27. In 2011, Robert Nelson, a truck driver from North Dakota, sued BNSF in Montana state court under the Federal Employersâ Liability Act of 190810×10. 45 U.S.C. §§ 51â60 (2012). (FELA), which enables workers to sue railways for workplace injuries.11×11. See Tyrrell v. BNSF Ry. Co., 373 P.3d 1, 2â3 (Mont. 2016). Nelson sought compensation for knee injuries he allegedly suffered12×12. Id. at 3. while working in Washington.13×13. Nelson v. BNSF Ry. Co., No. DV 11-417, slip op. at 1 (13th Jud. Dist., Yellowstone Cty., Mont. Nov. 18, 2014). BNSF moved to dismiss for lack of personal jurisdiction, and Judge Baugh, citing the Supreme Courtâs then-recent opinion in Daimler AG v. Bauman,14×14. 134 S. Ct. 746 (2014). granted the motion because BNSF was not at home in Montana and Nelsonâs injuries took place elsewhere.15×15. Nelson, No. DV 11-417, slip op. at 3â4. In 2014, again in Montana state court, Kelli Tyrrell, who was appointed in South Dakota as special administrator for the estate of her deceased husband Brent T. Tyrrell, sued BNSF under FELA, alleging that her husbandâs long-term exposure to chemicals while working for BNSF in various states, none Montana, caused his fatal cancer.16×16. Tyrrell v. BNSF Ry. Co., No. DV 14-699, slip op. at 2â3 (13th Jud. Dist., Yellowstone Cty., Mont. Oct. 7, 2014). BNSF once again moved to dismiss for lack of personal jurisdiction, but Judge Moses held that Montana had general jurisdiction over BNSF because the company had shipped almost fifty million tons of goods from the state in one recent year and had recently invested close to $500 million there.17×17. Id. at 1, 16 (quoting Monroy v. BNSF Ry. Co., No. DV 13-799, slip op. at 12 (13th Jud. Dist., Yellowstone Cty., Mont. Aug. 1, 2014)).
After consolidating appeals from Nelson and BNSF, the Supreme Court of Montana reversed in Nelsonâs case and affirmed in Tyrrellâs.18×18. Tyrrell v. BNSF Ry. Co., 373 P.3d 1, 2â3 (Mont. 2016). Writing for the majority, Justice Shea19×19. Justice Shea was joined by Chief Justice McGrath and Justices Cotter, Rice, Wheat, and Baker. held that Montana courts had general jurisdiction over BNSF.20×20. Tyrrell, 373 P.3d at 2. The court first discussed FELA, noting that when Congress passed the employee-friendly statute, its lack of a venue provision prevented many workersâ suits.21×21. Id. at 4. To solve for âthe injustice to an injured employee of compelling him to go to the possibly far distant place of habitation of the defendant,â Congress amended the statute in 1910.22×22. Id. (quoting Balt. & Ohio R.R. Co. v. Kepner, 314 U.S. 44, 49â50 (1941)). The newly added § 56 allowed plaintiffs to bring FELA actions in a state where the âdefendant shall be doing business at the time of commencing such action,â and noted that federal âjurisdiction . . . shall be concurrent with that of the courts of the several States.â23×23. 45 U.S.C. § 56 (2012). Citing several Supreme Court cases interpreting § 56, the Tyrrell majority rejected BNSFâs argument that Daimlerâs constitutional holding overrode FELAâs grant of general jurisdiction because Daimler was not a FELA case and because the statute made railroads âat homeâ wherever they did business.24×24. Tyrrell, 373 P.3d at 4â6. The majority also rejected the possibility that the concurrent jurisdiction reference in § 56 referred to subject matter jurisdiction, rather than personal jurisdiction, because this narrower reading would frustrate Congressâs goal of enabling railway workers to litigate in convenient forums.25×25. Id. at 7. Concluding that § 56 created personal jurisdiction over BNSF, the majority additionally held that Montana law authorized general jurisdiction because the railwayâs âcontinuous and systematicâ contacts with the state â roughly 2000 employees and 2000 miles of track â brought it within reach of Montanaâs long-arm provision.26×26. Id. at 7â9 (citing Mont. R. Civ. P. 4(b)(1)). On the constitutional question, the court briefly pointed to its rejection of BNSFâs Daimler argument and to its FELA precedent in holding that it had personal jurisdiction under the Due Process Clause.27×27. Id. at 8â9.
Justice McKinnon dissented. She found Daimler controlling and would have held that Montana lacked general jurisdiction over BNSF because the state was not its corporate home and nothing about its Montana contacts made this the sort of âexceptional caseâ the Daimler Court noted in dicta might warrant general jurisdiction even where a corporation is not at home.28×28. Id. at 9â11 (McKinnon, J., dissenting) (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 761 n.19 (2014)). For a paradigmatic âexceptional case,â Daimler cited Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 448 (1952), where Japanese occupation during World War II forced the president of a Philippine mining company to temporarily relocate to Ohio. Daimler, 134 S. Ct. at 756, 761 n.19. Perkins held Ohio had general jurisdiction over the corporation because of its presidentâs âcontinuous and systematic supervision . . . of the company [in Ohio].â 342 U.S. at 448. She also disagreed with the majorityâs conclusion that § 56 created personal jurisdiction over FELA defendants.29×29. Tyrrell, 373 P.3d at 13 (McKinnon, J., dissenting).
The Supreme Court reversed. Writing for the Court, Justice Ginsburg30×30. Justice Ginsburg was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch. held that § 56 did not address personal jurisdiction over railways and that Montanaâs exercise of general jurisdiction over BNSF was unconstitutional because the corporation was not at home in Montana.31×31. BNSF, 137 S. Ct. at 1553â54. The Court first addressed jurisdiction under FELA, finding that the statuteâs authorization for courts to hear actions in a district where the defendant conducts business was a grant of venue, not personal jurisdiction, and that its concurrent jurisdiction provision referred only to subject matter jurisdiction.32×32. Id. at 1555â57. The Court held that its prior FELA cases did not suggest the statute created personal jurisdiction and emphasized that most of those cases were decided in an era when state territorialism, rather than contacts-based analysis, animated personal jurisdiction doctrine.33×33. Id. at 1557â58 (citing Pope v. Atl. Coast Line R.R. Co., 345 U.S. 379 (1953); Miles v. Ill. Cent. R.R. Co., 315 U.S. 698 (1942); Balt. & Ohio R.R. Co. v. Kepner, 314 U.S. 44 (1941); Denver & Rio Grande W. R.R. Co. v. Terte, 284 U.S. 284 (1932)).
Turning to the constitutional question, the Court reaffirmed the minimum contacts test and, because the plaintiffs did not allege a nexus between their injuries and Montana, the Court looked to its general jurisdiction precedent.34×34. Id. at 1558. Citing Goodyear Dunlop Tires Operations, S.A. v. Brown35×35. 564 U.S. 915 (2011). and Daimler, the Court held that a state may exercise general jurisdiction over corporations only âwhen their affiliations with the State are so âcontinuous and systematicâ as to render them essentially at home [there].â36×36. BNSF, 137 S. Ct. at 1558 (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014)). The Court elaborated, as in Goodyear and Daimler, that corporations are at home only in their place of incorporation and principal place of business, save for a truly âexceptional case.â37×37. Id. The âexceptional caseâ carve-out is discussed supra note 27. The Court explained that FELA did not alter this due process constraint and concluded BNSF was not at home in Montana.38×38. BNSF, 137 S. Ct. at 1558â59.
Justice Sotomayor concurred in part and dissented in part. She agreed with the Courtâs FELA analysis but not its constitutional holding under the ârestrictive âat homeâ test,â which she stated âhas no home in our precedents and creates serious inequities.â39×39. Id. at 1560 (Sotomayor, J., concurring in part and dissenting in part) (citing Daimler, 134 S. Ct. at 767â73 (Sotomayor, J., concurring in the judgment)). She argued that International Shoe asked only âwhether the benefits a defendant attained in the forum State warranted the burdens associated with general personal jurisdiction,â and predicted the new test would require âindividual plaintiffs, harmed by the actions of a farflung foreign corporation, . . . to sue in distant jurisdictions with which they have no contacts or connection.â40×40. Id. at 1560â61. The majority disagreed with this reading of International Shoe, arguing the case involved specific, rather than general, jurisdiction. Id. at 1559 n.4 (majority opinion). She also contended that the at-home test departs from International Shoeâs minimum contacts analysis by assessing âcomparative contacts,â or whether a corporationâs contacts in one state exceed those in others.41×41. Id. at 1561 (Sotomayor, J., concurring in part and dissenting in part) (emphasis added); see also Daimler, 134 S. Ct. at 764 (Sotomayor, J., concurring in the judgment) (noting the comparative contacts problem would make a corporation âtoo big for general jurisdictionâ). Finally, she argued that the majorityâs cursory refusal to apply the âexceptional caseâ carve-out mentioned in Daimler was a reading âso narrow as to read the exception out of existence entirely.â42×42. BNSF, 137 S. Ct. at 1561 (Sotomayor, J., concurring in part and dissenting in part).
BNSF reveals the costs of the at-home test in ways its predecessors could not. Although they applied the at-home test, âGoodyear and Daimler were easy casesâ because they involved foreign defendants whose few forum contacts would not have sufficed for general jurisdiction under the Courtâs prior doctrine.43×43. Richard D. Freer, Some Specific Concerns with the New General Jurisdiction, 15 Nev. L.J. 1161, 1162 (2015). The two cases demonstrate how the at-home test can quickly and efficiently resolve jurisdictional disputes and curtail problematic instances of forum shopping. But BNSF was not so easy because it denied jurisdiction over a domestic defendant with active operations, thousands of workers, and hundreds of millions of dollars in property in the forum state. By providing a bulletproof citation that the at-home test applies even when a defendant has substantial forum contacts, BNSF highlights, and will likely exacerbate, the costs of narrowing general jurisdiction: the at-home test creates tension with transient jurisdiction doctrine, confusingly draws attention to forum shopping concerns, and undermines federal statutes by placing litigation-discouraging burdens on plaintiffs.
The Court established the modern personal jurisdiction doctrine in International Shoe, where it held that defendants have a due process right not to be haled into court unless they have certain minimum contacts with the forum state.44×44. Intâl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). International Shoe also observed that jurisdiction attaches when a defendantâs âcontinuous corporate operations within a state [are] thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.â45×45. Id. at 318. The Court let this test stand for decades, referring to âcontinuous and systematicâ contacts as the relevant criterion for what it later called general jurisdiction.46×46. See, e.g., Helicopteros Nacionales de Colom., S.A. v. Hall, 466 U.S. 408, 416â18 (1984). But in 2011, the Court clarified in Goodyear that general jurisdiction is appropriate only when a corporationâs contacts with a state âare so âcontinuous and systematicâ as to render [it] essentially at home [there].â47×47. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Intâl Shoe, 326 U.S. at 317). It reasoned corporations are at home in their place of incorporation and principal place of business because these locations are equivalent to domicile, the basis for general jurisdiction over people.48×48. Id. at 924. The Court applied the same rule in Daimler49×49. Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). and did so again in BNSF.50×50. BNSF, 137 S. Ct. at 1558â59. These cases transformed a holistic and subjective analysis into a clearer but narrower inquiry.51×51. See, e.g., id. at 1560 & n.1 (Sotomayor, J., concurring in part and dissenting in part).
But Goodyear and Daimler would have come out the same way under the Courtâs prior doctrine. In Goodyear, after two American children died in a bus accident in France, their parents sued Goodyear USA and three of its European subsidiaries in North Carolina, attributing the accident to a defective Goodyear tire manufactured by the defendants.52×52. Goodyear, 564 U.S. at 918. The plaintiffs argued North Carolina had general jurisdiction over the subsidiaries because some of their tires ended up in the state through the stream of commerce.53×53. Id. at 920. The Court dismissed the claims against the subsidiaries under the newly announced at-home test, but it could have done so under its prior doctrine because the subsidiaries did no business in North Carolina. Daimler involved Argentine nationals suing Daimler, a German corporation, for human rights abuses that took place in Argentina.54×54. Daimler, 134 S. Ct. at 751â52. The plaintiffs argued that California had general jurisdiction over Daimler because 2.4% of its revenue came from cars sold in California by its indirect subsidiary Mercedes-Benz USA.55×55. Id. at 752. Even if these contacts were attributable to Daimler â a finding the Court seemed to reject but assumed for the sake of argument56×56. See id. at 758â60. â the case would not have been especially difficult under prior doctrine because Daimlerâs only alleged California contacts were its indirect subsidiaryâs sales, accounting for a small percentage of its revenue.
Goodyear and Daimler showcase the at-home testâs reforms. The defendants in these cases spent years litigating a threshold jurisdictional issue that the at-home test would have quickly and efficiently resolved because âhome statesâ are rarely ambiguous.57×57. See id. at 760 (noting these locations are âeasily ascertainableâ). By making general jurisdiction available in just one or two states, the test also limits forum shopping and the cross-border effect of outlier laws.58×58. Cf. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (prohibiting states from imposing too great a burden on interstate commerce). If general jurisdiction applied broadly, plaintiffs could strategically choose among numerous possible forums, and corporations doing a high volume of business in many states could be subject to the most plaintiff-friendly version of every law in the country whenever they injure someone anywhere in the world. This reality could hinder economic growth if corporations found the benefits of doing nationwide business did not outweigh these risks. Further, if these concerns warranted federal intervention, Congress could only partially address them. While venue reforms could accomplish what the at-home test has done,59×59. Cf. Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, 108 Nw. U. L. Rev. 1301, 1333â37 (2014). these rules would apply only to federal courts: states would remain free to enact and enforce aggressive long-arm statutes. Although Congress has combatted such statutes in the past by authorizing broad removal of certain actions,60×60. See 28 U.S.C. § 1453(b) (2012) (class actions subject to 28 U.S.C. § 1332(d)); 28 U.S.C. § 1452(a) (2012) (actions related to bankruptcy). the Commerce Clause limits Congressâs legislative authority,61×61. See, e.g., United States v. Lopez, 514 U.S. 549, 553 (1995). and broad removal jurisdiction could overwhelm federal courts. Due process restraints like the at-home test may be the most effective way for any federal actor to limit state court jurisdiction over out-of-state defendants.
Unlike its predecessors, BNSF not only depended on the at-home test for its holding, but also offered a clear statement that courts should apply the test even when a corporationâs forum contacts are continuous and systematic. While the Montana court and others were able to distinguish Goodyear and Daimler for involving foreign defendants with threadbare in-state contacts,62×62. See, e.g., Barriere v. Juluca, No. 12-23510-CIV, 2014 WL 652831, at *8â9 (S.D. Fla. Feb. 19, 2014) (distinguishing Daimler on multiple grounds and finding a foreign corporation was at home in Florida because of unrebutted allegations of its extensive forum contacts); In re Hellas Telecomms. (Lux.) II SCA, 524 B.R. 488, 507â08 (Bankr. S.D.N.Y. 2015) (distinguishing Daimler and finding jurisdiction based on substantial in-state contacts); Moore v. Lake States Dairy Ctr., Inc., No. 1-14-0149, 2014 WL 4929482, at *6â7 (Ill. App. Ct. Sept. 30, 2014) (distinguishing Daimler as concerning a foreign corporation with slim in-state contacts and asserting general jurisdiction over an out-of-state corporation based on âthe frequency and nature of its contacts in Illinois,â id. at *7). BNSF involved American plaintiffs suing an American corporation in a state where it had 2100 employees, 2000 miles of track, and nearly half a billion dollars in recent investments.63×63. Tyrrell v. BNSF Ry. Co., No. DV 14-699, slip op. at 2â3, 16 (13th Jud. Dist., Yellowstone Cty., Mont. Oct. 7, 2014) (quoting Monroy v. BNSF Ry. Co., No. DV 13-799, slip op. at 12 (13th Jud. Dist., Yellowstone Cty., Mont. Aug. 1, 2014)). Around ten percent of BNSFâs revenue came from Montana, which is about four times higher than the percentage of revenue Daimler indirectly received from California.64×64. Compare id., with Daimler AG v. Bauman, 134 S. Ct. 746, 752 (2014). When viewed as a clear and citable statement that even a domestic corporationâs substantial forum contacts do not override the at-home test, BNSF is a better vehicle than its predecessors for assessing at least three significant drawbacks of the newly narrowed doctrine.
First, BNSF exacerbates the tension between the at-home doctrine and another form of general jurisdiction: that based on transient physical presence. Under Burnham v. Superior Court of California,65×65. 495 U.S. 604 (1990). states may hear any cause of action against any person served within their borders, âno matter how fleeting his visit,â66×66. Id. at 611 (plurality opinion). because âjurisdiction based on physical presence alone constitutes due process.â67×67. Id. at 619. Burnham justified its holding by noting that personal jurisdictionâs due process rationale âwas developed by analogy to âphysical presence.ââ68×68. Id. The at-home cases analogize between people and corporations by reasoning that because a person is subject to general jurisdiction in her domicile, a corporation should be subject to general jurisdiction in its two versions of a home state.69×69. See, e.g., Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011). But courts do not draw this analogy for assertions of transient presence jurisdiction: the doctrine applies only to people, even though fleeting corporate contacts, and especially permanent operations, are similar to a personâs passing presence in a state.70×70. See generally Cody J. Jacobs, If Corporations Are People, Why Canât They Play Tag?, 46 N.M. L. Rev. 1 (2016).
Although critics noted these contrasts after Goodyear and Daimler,71×71. See Stanley E. Cox, The Missing âWhyâ of General Jurisdiction, 76 U. Pitt. L. Rev. 153, 176 (2014) (citing sources). no real tension arose because the foreign defendants in those cases had no alleged corporate presence where they were sued. But BNSF substantiates these criticisms because the railway had permanent presence and even an agent registered to receive service of process in Montana.72×72. Brief for Respondents at 5, BNSF, 137 S. Ct. 1549 (No. 16-405). Read together, BNSF and Burnham present a troubling contrast: courts lack general jurisdiction over a corporation with dozens of offices, thousands of employees, and almost half a billion dollars in recent investments in a state that provides nearly ten percent of its revenue but is not its corporate home; but, for example, courts can hear any cause of action against a person served while his airplane crosses over the forum state mid-flight.73×73. Grace v. MacArthur, 170 F. Supp. 442 (E.D. Ark. 1959). This contrast does not necessarily invalidate BNSF, and may do more to suggest that Burnham was wrongly decided.74×74. Cf. Cox, supra note 71, at 187â92 (arguing Burnham is wrong in light of broader personal jurisdiction principles). But so long as these doctrines coexist, their tensions will remain,75×75. BNSF, Daimler, and Goodyear do not discuss possible tension with transient jurisdiction. and BNSFâs strong endorsement of the at-home test will likely create further disparities as courts decline to exercise general jurisdiction over corporations doing substantial business outside their home states.
Second, BNSF exposes the difficulty of reconciling the at-home test with the rule that choice-of-law concerns are irrelevant to minimum contacts analysis. Keeton v. Hustler Magazine, Inc.76×76. 465 U.S. 770 (1984). observed that âany potential unfairness in applying [one stateâs especially generous] statute of limitations to all aspects of [a] nationwide suit has nothing to do with the jurisdiction of the court to adjudicate the claims.â77×77. Id. at 778; see also Hanson v. Denckla, 357 U.S. 235, 254 (1958) (âThe issue is personal jurisdiction, not choice of law.â). Due process requires this outcome because it looks to the relationship between the state and the defendant and is agnostic toward the plaintiff. Although the at-home cases do not suggest the test is intended to limit forum shopping, each case illustrates why it has that effect.78×78. See Judy M. Cornett & Michael H. Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, 76 Ohio St. L.J. 101, 107 (2015); Freer, supra note 42, at 1162 n.18; Allan R. Stein, The Meaning of âEssentially at Homeâ in Goodyear Dunlop, 63 S.C. L. Rev. 527, 528, 540â41 (2012). The Daimler and Goodyear plaintiffs sued foreign defendants in states where the defendants did virtually no business, presumably to litigate in favorable or convenient forums. In Daimler, neither the petitioners nor the respondents were American, a fact the Court highlighted by expressing respect for international comity at the end of its opinion.79×79. Daimler AG v. Bauman, 134 S. Ct. 746, 762â64 (2014). BNSF raised the mildest forum shopping concerns of the trio because it involved domestic plaintiffs suing a domestic corporation in a state bordering their own. But the petitionerâs brief is replete with allegations that Montana is a haven for FELA plaintiffs,80×80. Brief for Petitioner at 10â13, BNSF, 137 S. Ct. 1549 (No. 16-405). and BNSFâs counsel referred to âa true wild west of FELA claims being filed in forums like Montanaâ when explaining at oral argument why the Court should rule for BNSF.81×81. Oral Argument at 9:42â9:48, BNSF, 137 S. Ct. 1549 (No. 16-405), https://www.oyez.org/cases/2016/16-405 [https://perma.cc/Y4HT-QUNC]. These accounts prompted the Justices to spend nearly four minutes engaging with the respondentsâ counsel about forum shopping.82×82. Id. at 22:59â26:52. While BNSFâs allegations raise legitimate policy concerns, the attention that the corporation devoted to a jurisdictionally irrelevant issue underscores the reality that attorneys have understood the at-home test as a measure for curbing forum shopping. Guided by BNSFâs success, future defense attorneys litigating personal jurisdiction may similarly flag forum shopping abuses, and BNSF will provide those attorneys a much better citation than Goodyear or Daimler because it demonstrates that whatever prudential principle the at-home test may imply is not limited to international defendants with few forum contacts.
Third, BNSF demonstrates better than its predecessors how the at-home test may discourage plaintiffs from filing valid claims. Narrow general jurisdiction might beneficially prevent plaintiffs from suing in friendly forums, but it also prevents them from suing in convenient forums when they are injured outside their domicile by a corporation with different home states than their own.83×83. See BNSF, 137 S. Ct. at 1560â61 (Sotomayor, J., concurring in part and dissenting in part). This sort of problem did not arise in Daimler, where Argentine plaintiffs sued a German corporation in California, and although the Goodyear plaintiffs could not sue in their home state for injuries they suffered in France, the foreign defendants had clear countervailing interests because they did no business in North Carolina, where the plaintiffs brought suit. But after BNSF, a truck driver from North Dakota, injured in Washington, will be forced to travel to Delaware, Texas, or Washington to bring his claim for knee injuries against a corporation worth $93.2 billion.84×84. See Gillian Tan, That Big Berkshire Hathaway Railroad Deal, Bloomberg Gadfly (Nov. 11, 2016, 12:14 PM), https://www.bloomberg.com/gadfly/articles/2016-11-11/berkshire-hathaway-bnsf-railroad-deal-shines-bright-in-hindsight [https://perma.cc/AQQ9-U33Z]. This outcome seems especially troubling because BNSF has a permanent presence in Montana and does close to $2 billion of annual business there,85×85. See Joint Appendix, supra note 8, at 37. and the reason Nelsonâs alleged injury took place in Washington is that the corporation sent him there for work.86×86. Nelson v. BNSF Ry. Co., No. DV 11-417, slip op. at 1 (13th Jud. Dist., Yellowstone Cty., Mont. Nov. 18, 2014). Plaintiffs like Nelson will be forced to take repeated trips to faraway states, find a local attorney, and manage their litigation from afar. Especially when their claims are small or would require lengthy litigation, rational individuals may choose not to pursue completely valid claims rather than bring a lawsuit that would cost them more than they could reasonably expect to recover in damages. This is exactly the problem Congress tried to solve by enacting FELA,87×87. See Tyrrell v. BNSF Ry. Co., 373 P.3d 1, 3â4 (Mont. 2016). and BNSF highlights how the at-home test may lead to significant under-enforcement of FELA and similar statutes designed to encourage injured parties to seek redress.
Goodyear and Daimler make BNSF an easy case. But BNSF is difficult to justify on due process grounds, and this problem stems from deeper conflicts underlying the Courtâs recent personal jurisdiction doctrine. Academics have proposed broad reforms, arguing the Court should recalibrate general and specific jurisdiction88×88. Charles W. âRockyâ Rhodes & Cassandra Burke Robertson, Toward a New Equilibrium in Personal Jurisdiction, 48 U.C. Davis L. Rev. 207, 263â69 (2014). or move away from the due process rationale entirely.89×89. See Brief of Amicus Curiae Alan B. Morrison, in Support of Respondents at 18â36, Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (No. 16-466) (arguing that all state court exercises of personal jurisdiction should be analyzed under the dormant commerce clause); Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1313â25 (2017) (arguing that all of personal jurisdiction is justified under general and international law principles). Although no solution may completely untangle the doctrine, the confusions BNSF highlights add new urgency to these calls for reform.
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