The Trial Lawyer Winter 2018 - Page 37

similar conclusions under varying facts have been issued by Courts around the country. See McGraw, Santiago, Tarver, Bandemer, supra; accord Lucero v. Ford Motor Co., Cause No. ADV‐18‐0247(b) (Mont. 8th Dist. Oct.10, 2018); Spiva v. Bridgestone Americas Tire Ops., LLC, Cause No. 18‐C‐0286‐S6 (Ga. Gwinnett County Oct. 8, 2018); Spiva v. Ford Motor Co., Cause No. 18‐C‐0286‐S6 (Ga. Gwinnett County Sept. 28, 2018); Tomas v. Bayerische Motoren Werke AG, 2018 U.S. Dist. LEXIS 143968 (N.D. Ala. Aug. 24, 2018); Dillard v. Fed. Corp., 2018 U.S. Dist. LEXIS 129409 (W.D. Tex. Aug. 1, 2018); Bandemer v. Ford Motor Co., 913 N.W.2d 710, 714 (Minn. Ct. App. 2018), appellate review granted, 2018 Minn. LEXIS 405 (July 17, 2018); Align Corp. v. Boustred, 421 P.3d 163 (Colo. 2017); Thomas v. Ford Motor Co., 289 F. Supp. 3d 941 (E.D. Wis. 2017); Kowal v. Westchester Wheels, Inc., 2017 IL App (1st) 152293, 417 Ill. Dec. 888, 89 N.E.3d 807; Griffin v. Ford Motor Co., 2017 U.S. Dist. LEXIS 141709 (W.D. Tex. Aug. 31, 2017); Antonini v. Ford Motor Co., 2017 U.S. Dist. LEXIS 135247 (M.D. Pa. Aug. 23, 2017). If you are faced with a jurisdictional challenge premised on the notion that Bristol-Myers Squib, et al. marked a radical change in the law on jurisdiction, the cases cited in this section should be a good starting point for a response. 4. Consent Jurisdiction Via Registered Agent Is Still Also Viable in Many States It is axiomatic that, “[b]ecause the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.” Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982). Waiver can occur in various ways. Notably, there is a longstanding “line of authority holding that, in certain circumstances, a foreign corporation may be deemed to have consented to a state’s exercise of personal jurisdiction over it if it registers to do business in the state and designates an agent for service of process.” Brieno v. Paccar, Inc., 2018 U.S. Dist. LEXIS 129777, at *7 (D.N.M. Aug. 2, 2018) (citing Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 96, 37 S. Ct. 344, 61 L. Ed. 610 (1917); Robert Mitchell Furniture Co. v. Selden Breck Constr. Co., 257 U.S. 213, 214-16, 42 S. Ct. 84, 66 L. Ed. 201 (1921)). Following Daimler and Goodyear, some defendants have argued that almost one hundred years’ worth of nationwide jurisprudence surrounding consent-to- jurisdiction was overruled sub silento. There is currently a split of authority on this issue nationwide, with some courts accepting this type of argument and other courts holding firm by longstanding law on consent-to-jurisdiction via registered agent. Notably, the courts rejecting this argument sensibly recognize that consent- to-jurisdiction is a separate species of jurisdiction than that at issue in Daimler and Goodyear. See, e.g., Brieno v. Paccar, Inc., 2018 U.S. Dist. LEXIS 129777, at *7 (D.N.M. Aug. 2, 2018) (citing case law for the proposition that “the Supreme Court has continued to sanction the viability of jurisdiction through consent”) (citations and quotations omitted); Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278, 297–98 (M.D. Pa. 2018)​ (“Consent remains a valid form of establishing personal jurisdiction under the Pennsylvania registration statute after Daimler.”) (citations and quotations omitted); Acorda Therapeutics, Inc. v. Mylan Pharm. Inc., 78 F. Supp. 3d 572 (D. Del. 2015) (“Daimler does not eliminate consent as a basis for a state to establish general jurisdiction over a corporation which has appointed an agent for service of process in that state, as is required as part of registering to do business in that state.”). Goodyear and Daimler were each specifically concerned with the “continuous and systematic” contacts test for general jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (analyzing whether the European Goodyear defendants had “continuous and systematic” contacts to render them “at home” in North Carolina); Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (analyzing whether DailmerChrysler Aktiengesellschaft, a German public stock company, had “continuous and systematic” contacts such that it was “at home” in California). Neither opinion was concerned with the question of whether qualifying to do business and designating a registered agent could confer jurisdiction. As stated above, the Goodyear Court expressly noted that, “in contrast to the parent company, Goodyear USA, which does not contest the North Carolina courts’ personal jurisdiction over it, petitioners are not registered to do business in North Carolina.” Goodyear, 564 U.S., at 921. If anything, this observation only underscores the significance of a company registering to do business and designating a registered agent within a state. Critically, Goodyear and Daimler each recognize and affirm that consent can form an additional basis for jurisdiction by acknowledging that: “[The Court’s] 1952 decision in Perkins v. Benguet Consol. Mining Co. remains the textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.” Daimler, 571 U.S., at 129 (quoting Goodyear, 564 U.S., at 927-78)) (emphasis added). This acknowledgment is critically important because: In this way, Daimler distinguishes between consensual and non-consensual bases for jurisdiction. It preserves what has long been the case: that these are two distinct manners of obtaining jurisdiction over a corporation. Consistent with Daimler, it remains the law that general jurisdiction may be established by showing that a corporation is ‘at home’ in the sense described in detail in Daimler, or separately general jurisdiction may be established by a corporation’s consent to such The Trial Lawyer x 35