The Supreme Court Creates Increased Uncertainty by Expanding Doctrinal Scope of Personal Jurisdiction

Insights The Supreme Court Creates Increased Uncertainty by Expanding Doctrinal Scope of Personal Jurisdiction Michael S. Lazaroff · July 28, 2023

On June 27, 2023, the Supreme Court decided in Mallory v. Norfolk Southern Railway Co., 2023 WL 4187749 (2023) that the Due Process Clause of the Fourteenth Amendment did not prohibit the exercise of personal jurisdiction by a Pennsylvania state court based on a Pennsylvania statute mandating that an out-of-state entity be deemed to have consented to personal jurisdiction as a condition to registering to do business in Pennsylvania.  The majority opinion was authored by Justice Gorsuch with Justice Thomas, Justice Alito, and Justice Sotomayor joining with respect to some or all of the decision; Justice Jackson and Justice Alito issued separate concurring opinions.  Justice Barret issued a dissent joined by Chief Justice Robert, Justice Kagan and Justice Kavanaugh.  This decision seems to expand the theoretical basis for out-of-state personal jurisdiction based on statute alone even for causes of action with no or little contact with the state so long as the statute can be deemed to have provided consent.  However, it is not clear that this would apply to any states other than Pennsylvania and Georgia without any new legislation.  Additionally, Justice Alito, in his concurrence, raised concerns about whether personal jurisdiction under this statute (or others like it) may be barred by the dormant Commerce Clause, an issue which likely will be considered on remand.  Thus, it may be that ultimately there is limited or little practical long-term impact from this decision with regard to existing statutes.


Petitioner Robert Mallory worked for Respondent Norfolk Southern (“Norfolk”) as a mechanic for nearly 20 years.  He did not work for Norfolk in Pennsylvania.  He was unfortunately diagnosed with cancer, which he attributed to his time working for Norfolk doing such things as spraying boxcar pipes with asbestos, handling chemicals in the railroad’s paint shop, and demolishing car interiors which contained carcinogens.  As a result, he sued Norfolk under the Federal Employers’ Liability Act (45 U.S.C. §§ 51–60) in Pennsylvania State Court even though at the time that he filed the Complaint, Mr. Mallory lived in Virginia and the complaint alleged that he was only exposed to carcinogens in Ohio and Virginia.  Norfolk, which, at the time the complaint was filed, was incorporated and headquartered in Virginia, moved to dismiss the lawsuit because inter alia the Pennsylvania state court’s exercise of personal jurisdiction over Norfolk violated the Due Process Clause of the Fourteenth Amendment.  Mallory, 2023 WL 4187749 at *3.

Mr. Mallory argued that there was no constitutional issue with the Pennsylvania State Court’s exercise of personal jurisdiction.  Norfolk registered to do business in Pennsylvania in accordance with a Pennsylvania statute requiring out-of-state companies that register to do business in Pennsylvania to agree to appear in its courts on “any cause of action” against them. 42 Pa. Cons. Stat. § 5301(a)(2)(i), (b)(2019)(the “Pennsylvania Registration Statute”).  Mr. Mallory argued that Norfolk had thus consented to personal jurisdiction in Pennsylvania by registering in the state in accordance with the Pennsylvania Registration Statute.  In addition, Norfolk has significant contacts with Pennsylvania as it manages thousands of miles of track, operates rail yards and runs locomotive repair shops in Pennsylvania.  Id.

The trial court found Pennsylvania’s statutory scheme unconstitutional as it violated the Due Process Clause.  The Pennsylvania Supreme Court affirmed.  The Pennsylvania Supreme Court acknowledged that its decision disagreed with a 2021 decision from the Georgia Supreme Court which had rejected a similar Due Process argument with regard to a Georgia statute.  Id. (citing Cooper Tire & Rubber Co. v. McCall, 312 Ga. 422, 863 S.E.2d 81 (2021)).  The Supreme Court granted certiorari to resolve this split of authority and to determine “whether the Due Process Clause of the Fourteenth Amendment prohibits a State from requiring an out-of-state corporation to consent to personal jurisdiction to do business there”.  Mallory, 2023 WL 4187749 at *3.  The Court noted that it was not reviewing the question raised below (but not decided) of whether “Pennsylvania’s statutory scheme as applied here violates this Court’s dormant Commerce Clause doctrine”.  Id. at n.3.


Justice Gorsuch writing for the majority/plurality explained that the [t]he question before us [in this case] is not a new one.  In truth, it is a very old question — and one this Court resolved in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610 (1917).  There, the Court unanimously held that laws like Pennsylvania’s comport with the Due Process Clause.”  Id. at *4.  Justice Gorsuch explained that historically an in personam (“transitory”) action could be brought against an individual wherever the defendant could be found and this historical “rule governing transitory actions still applies to natural persons today.  Some call it ‘tag’ jurisdiction”.  Id.; see also Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604 (1990).  Justice Gorsuch explained that the courts have struggled applying the concept of tag jurisdiction to corporations which are “artificial persons created by law”.  In the 1800’s, many states “adopted statutes requiring out-of-state corporations to consent to in-state suits in exchange for the rights to exploit the local market and to receive the full range of benefits enjoyed by in-state corporations”.  Id. at *5.  The constitutionality of many of these statutes was challenged with one such challenge resulting in the 1917 Pennsylvania Fire decision.

In Pennsylvania Fire, an Arizona company sued to collect on an insurance policy from an insurance company incorporated under the laws of Pennsylvania under an insurance contract executed in Colorado for damage to a building.  “But it did not sue where the contract was formed (Colorado), or in its home State (Arizona), or even in the insurer’s home State (Pennsylvania).  Instead, Gold Issue Mining brought its claim in a Missouri state court.”  Id.  The insurance company objected that this was unconstitutional because the claim had “no connection to the State”.  Id.  The Missouri Supreme Court found that since there was a state statute requiring companies desiring to transact any business in the states to essentially agree to be served in the State, this statute did not violate the Due Process Clause.  The Supreme Court agreed with the Missouri Supreme Court.  Justice Holmes explained that there was no Due Process issue “because it [the insurance company] had agreed to accept service of process in Missouri on any suit as a condition of doing business there”.  Id. at *6  (citing Pennsylvania Fire, 243 U.S. at 95).  “[D]ue process allows a corporation to be sued on any claim in a State where it has appointed an agent to receive whatever suits may come”.  Mallory, 2023 WL 4187749 at *6.

Justice Gorsuch explained that, in Mallory, as in Pennsylvania Fire, there is a statute requiring that in order to qualify as a foreign corporation, a company must agree to permit state courts to “exercise general personal jurisdiction” over the corporation.  Id. at *7.  Norfolk complied with this law, named a Commercial Registered Office Provider in Philadelphia county, and did business in Pennsylvania for over 20 years.  “All told, then, Norfolk Southern has agreed to be found in Pennsylvania and answer any suit there for more than 20 years.”  Id.  The Court explained that this process does not deny a defendant due process of law.

Norfolk asked the Court to overrule Pennsylvania Fire; it argued that the Court had already largely done that in International Shoe Co. v. Washington, 326 U.S. 310 (1945).  Justice Gorsuch disagreed and stated that the Court has not overruled Pennsylvania Fire and “‘[i]f a precedent of this Court has direct application in a case’ . . . a lower court ‘should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”.  Id. (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).  Thus, “[t]he two precedents [International Shoe and Pennsylvania Fire] sit comfortably side by side.”  Mallory, 2023 WL 4187749 at *8.  In International Shoe, the Court held that “without agreeing to be present, the out-of-state corporation was still amenable to suit in Washington consistent with ‘fair play and substantial justice’ – terms the Court borrowed from Justice Holmes, the author of Pennsylvania Fire.”  Id. (citing International Shoe, 326 U.S. at 316).  Justice Gorsuch explained, “[i]n reality, then, all International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations.  Pennsylvania Fire held that an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suit there.  International Shoe held that an out-of-state corporation that has not consented to in-state suits may also be susceptible to claims in the forum State . . . ”.  Mallory, 2023 WL 4187749 at *8 (emphasis in the original).  Moreover, cases subsequent to International Shoe recognized that “‘express or implied consent’ can continue to ground personal jurisdiction”.  Id. (citations omitted).

Justice Gorsuch explained that International Shoe did not limit personal jurisdiction but instead emphasized “fair play and substantial justice” and a flexible approach focused on the “the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.”  Id. at *9.  In fact, in the 1990 Burnham decision, Justice Scalia rejected the argument that International Shoe implicitly overruled the traditional tag rule and explained that “International Shoe simply provided a ‘novel’ way to secure personal jurisdiction that did nothing to displace other ‘traditional ones’”.  Id. at *9 (citing Burnham, 495 U.S. at 616, 619).  Moreover, Justice Gorsuch noted the Court cited Pennsylvania Fire seven years after International Shoe in Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446, n. 6 (1952). Id.

Justice Gorsuch also determined that there was no unfairness in allowing a Pennsylvania court to exercise personal jurisdiction over Norfolk.  “When Mr. Mallory brought his claim in 2017, Norfolk Southern had registered to do business in Pennsylvania for many years.  It had established an office for receiving service of process. . . .  All told, when Mr. Mallory sued, Norfolk Southern employed nearly 5,000 people in Pennsylvania.  It maintained more than 2,400 miles of track across the Commonwealth.  Its 70-acre locomotive shop there was the largest in North America. . . .  By 2020, too, Norfolk Southern managed more miles of track in Pennsylvania than in any other State.  And it employed more people in Pennsylvania than it did in Virginia, where its headquarters was located.”  Mallory, 2023 WL 4187749 at *10.

Finally, Justice Gorsuch explained that there is no concern about infringing the sovereignty of another state because here the “out-of-state defendant submit[ed] to suit in the forum State.  After all, personal jurisdiction is a personal defense that may be waived or forfeited.”  Id. at *11 (citations omitted).  Here, Norfolk’s consent to be sued in Pennsylvania was acknowledged and was no more of a technical formality than signing a certificate of incorporation, signing a contract with a forum selection clause, or mere physical presence of an individual, all of which are sufficient to permit personal jurisdiction.  Thus, the Supreme Court vacated the judgment of the Supreme Court of Pennsylvania and remanded the case.

Justice Jackson issued a separate concurring opinion to emphasize that she thought the result in this case was compelled not just by Pennsylvania Fire, but also by Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) where the central issue was consent to jurisdiction.  In Insurance Corp. of Ireland, the Court confirmed that that “[t]he due process ‘requirement of personal jurisdiction’ is an individual, waivable right”.  Mallory, 2023 WL 4187749 at *12 (citing and quoting Insurance Corp. of Ireland, 456 U.S. at 703).  Thus, a defendant can choose to consent to personal jurisdiction from which it may otherwise be protected by the Due Process Clause.  Mallory, 2023 WL 4187749 at *12.  There are many ways to waive personal jurisdiction including contractual clauses consenting to litigate desputes in particular courts, failing to follow specific procedural rules, or by taking advantage of certain benefits from a State “that are conditioned on submitting to the State’s jurisdiction”.  Id. at *13 (citing Insurance Corp. of Ireland, 456 U.S. at 703-706).  Justice Jackson concluded that she agrees with the Court that “Norfolk Southern waived that right by choosing to register as a foreign corporation under the circumstances presented in this case” and, thus, there is no due process issue here.  Mallory, 2023 WL 4187749 at *14.

Justice Alito also issued a concurring opinion agreeing with the judgement of the Court and joining the majority opinion as stated in Parts I and III-B.  Justice Alito agreed that the exercise of personal jurisdiction by the Pennsylvania court over Norfolk based on the Pennsylvania statute did not violate the Due Process clause of the Fourteenth Amendment.  He too relied on Pennsylvania Fire and did not think it had been or should be overruled.  He concluded that “[a]ssuming that the Constitution allows a State to impose such a registration requirement, I see no reason to conclude that such suits violate the corporation’s right to ‘fair play and substantial justice’”.  Mallory, 2023 WL 4187749 at *14 (emphasis in the original; citation omitted).

But, Justice Alito noted that he was “not convinced” that the Constitution permitted such a statute.  Id.  In particular, he noted that the Pennsylvania Registration Statute may be prohibited by the “so-called dormant Commerce Clause” which Norfolk had asserted below but had not yet been addressed by the courts.  Id.  He explained that “[t]he federalism concerns that this case presents fall more naturally within the scope of the Commerce Clause”.  Id. at *17.  Further, since the “right of an out-of-state corporation to do business in another State is based on the dormant Commerce Clause, it stands to reason that this doctrine may also limit a State’s authority to condition that right.” Id. at *18 (citations omitted).  He noted that in 1923, in  Davis v. Farmers’ Cooperative Equity Co., 262 U.S. 312 (1923), the Court used the Commerce Clause to invalidate a Minnesota statute requiring out-of-state corporations to “submit to suit” in Minnesota.  Mallory, 2023 WL 4187749 at *18.  “‘By requiring from interstate carriers general submission to suit,’ Minnesota’s statute ‘unreasonably obstruct[ed], and unduly burden[ed], interstate commerce.’”  Id. (quoting Davis, 262 U.S. at 317).

Thus, Justice Alito explained, that “there is a good prospect that Pennsylvania’s assertion of jurisdiction here . . . violates the Commerce Clause”.  Mallory, 2023 WL 4187749 at *18.  This is because under the “modern framework, a state law may offend the Commerce Clause’s negative restrictions in two circumstances:  when the law discriminates against interstate commerce or when it imposes ‘undue burdens’ on interstate commerce”.  Id. (citation omitted).  In the case of the Pennsylvania Registration Statute, “[t]here is reason to believe” that it “discriminators against out-of-state companies “ or “at the very least”, it “imposes a ‘significant burden’ on interstate commerce by ‘[r]equiring a foreign corporation . . . to defend itself with reference to all transactions,’ including those with no forum connection”.  Id. at *19 (citations omitted).

In light of the differing concurring opinions, the Court clarified that a majority of the Court agreed that (a) Norfolk consented to the suit in Pennsylvania; (b) Pennsylvania Fire controls this case and its rule for consent based jurisdiction has not been overruled; (c) the Court is not now overruling Pennsylvania Fire; (d) International Shoe governs cases where there is no separate consent to jurisdiction; (e) the exercise of jurisdiction here is not unfair; and (f) the federalism concerns in due process cases only applies when a defendant has not consented to personal jurisdiction.  Id. at *12 n.11.

Justice Barret issued a dissenting opinion (joined by Chief Justice Roberts, Justice Kagan and Justice Kavanaugh) contesting the result as an unjustified “sea change” (id. at *28) in the existing jurisprudence which permits a state government “to circumvent constitutional limits” too easily.  Id. at *20.  Justice Barret argued that International Shoe is the governing case here, which held that “the Due Process Clause does not allow state courts to assert general jurisdiction over foreign defendants merely because they do business in the state”.  Id.  The Pennsylvania Registration Statute required out-of-state corporations to register to do business in Pennsylvania and subjected all such registrants to suit “on ‘any cause’ in the Commonwealth’s courts”.  Id. at *21 (citations omitted).  Justice Barret declared that this statute “plainly violates the Constitution” and “as our precedent makes crystal clear, simply doing business is insufficient.”  Id. (citations omitted).

The Pennsylvania Registration Statute provides no basis for altering this analysis.  First, the “consent” from the Pennsylvania Registration is not consent but “[c]orporate registration [which] triggers a statutory repercussion”.  Id. at *22.  Consent is not mentioned in the registration form.  Moreover, the next subsection of the statute explicitly permits jurisdiction by specific consent.  Following the logic of the majority, “any long-arm statute could be said to elicit consent”, which clearly is not correct.  It makes no sense for “[a] State [to] defeat the Due Process Clause by adopting a law at odds with the Due Process Clause”.  Id.  Second, finding that consent of this type waives the objection to personal jurisdiction would effectively overrule the “traditional contacts-based approach to jurisdiction”.  Id at *20.  The Due Process Clause protects a defendant’s right to resist the judicial authority of a sovereign to which it has an insufficient tie and ensures that state courts “do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system”.  Id. (quoting World-Wide Volkswagen, 444 U.S. at 291-292).

Justice Barret also claims that the 1990 Burnham decision does not support the majority opinion.  In Burnham, the Court found that tag jurisdiction remained an effective basis for general jurisdiction even after International Shoe.  Mallory, 2023 WL 4187749 at *23.  But, Burnham based its opinion on the fact that tag jurisdiction is “firmly approved by tradition” and “still favored”.  Id. at *24.  Yet, the Pennsylvania Registration Statute is neither approved by tradition nor still favored as, for example, “Pennsylvania is the only State with a statute treating registration as sufficient for general jurisdiction”.  Id.  Finally, Justice Barret argued that Pennsylvania Fire in fact had been overruled by International Shoe.  Id. at *26.  Even if Pennsylvania Fire was still good law, it would not govern this case because in Pennsylvania Fire the consent “was contained in the document itself; here it is deemed by statute”.  Id. at *27


This is a major decision that theoretically expands the understanding of personal jurisdiction and, at the very least, create confusion about how personal jurisdiction will be applied.  While Justice Barret declared this decision a “sea change”, its actual impact likely will be more muted.  The decision presents what many will understand as a large doctrinal shift away from the more limited categories of International Shoe.  However, it is not clear its precise practical implications.  First, as Justice Barret noted in her dissent “Pennsylvania is the only State with a statute treating registration as sufficient for general jurisdiction”.  Id. at *24.  Justice Barret noted that there is one other state, Georgia, where a “judicial precedent” maintained that registration justified general jurisdiction.  Id. at *24, n.2.  As of now, according to the Mallory opinion, there are no other states with statutes that would now clearly be deemed to permit the exercise of personal jurisdiction as described in Mallory. While other states could pass new statutes or amend existing statutes, that is a longer more arduous process.  It is also possible lower courts will interpret other state’s statutes to provide consent even if not exactly like those in Pennsylvania or Georgia.  Second, while Justice Alito joined the majority opinion in Mallory, as described above, he noted that there is reason to believe that the Pennsylvania Registration Statute would violate the dormant Commerce Clause, an issue that will be considered upon remand.  None of the other Justices discussed this issue as it was not formally raised here.  However, if the other four dissenting Justices were to agree, then, the Pennsylvania Registration Statute and similar statutes would anyway be deemed unconstitutional at some future point in time.  If so, this would severely limit any broad scale application of Mallory.  Third, even if courts or the Supreme Court were to find that the Commerce Clause invalidated the Pennsylvania statute, it is still possible that a statute could satisfy the Commerce Clause and expand personal jurisdiction beyond International Shoe.

Thus, at the very least, there is now greater uncertainty about the boundaries of personal jurisdiction over companies doing business in the United States and greater reason for concern about potential lawsuits unrelated to the forum state, at least in Pennsylvania and Georgia. As noted by Justice Alito, the Supreme Court has “never held that the Due Process Clause protects against forum shopping” (id. at *16) and it now seems to potentially have opened the door to additional such forum shopping.

Michael Lazaroff is a partner in the Rimon Litigation group in the New York office.  He is an experienced trial and appellate lawyer with over two decades of experience in complex commercial litigation and arbitration representing both defendants and plaintiffs.  His extensive experience includes international litigation and arbitration, multidistrict actions, class actions, partnership disputes, antitrust litigation and counseling, copyright litigation, complex contract disputes, and pharmaceutical litigation…Read more