Registration, Fairness, and General Jurisdiction

Nebraska Law Review Volume 95 | Issue 2 2016 Registration, Fairness, and General Jurisdiction Jack B. Harrison Northern Kentucky University - Salmon P. Chase College of Law, Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Jack B. Harrison, Registration, Fairness, and General Jurisdiction, 95 Neb. L. Rev. 477 (2016) Available at: https://digitalcommons.unl.edu/nlr/vol95/iss2/5 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Article 5 Jack B. Harrison* Registration, Fairness, and General Jurisdiction TABLE OF CONTENTS I. II. III. IV. V. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In the Beginning Was “Presence” . . . . . . . . . . . . . . . . . . . . . . When “Presence” Ceased to Mean “Presence” . . . . . . . . . . What’s “Fairness” Got to Do with It? . . . . . . . . . . . . . . . . . . The Doctrine of General Jurisdiction After International Shoe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Perkins. v. Benguet Consolidated Mining Co. . . . . . . . B. Helicopteros Nacionales de Colombia, S.A. v. Hall . . VI. The Death of General Jurisdiction? . . . . . . . . . . . . . . . . . . . . A. Goodyear Dunlop Tires Operations, S.A. v. Brown . . B. Daimler v. Bauman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Registration and General Jurisdiction . . . . . . . . . . . . . . . . . A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. Circuit Split: Pre-Daimler, Post-International Shoe . C. Post-Daimler Cases Concluding that Consent-ByRegistration Is a Valid Basis for the Exercise of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D. Post-Daimler Cases Concluding that Consent-ByRegistration Is Not a Valid Basis for the Exercise of Personal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Conclusion: A Middle Path . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478 481 484 488 490 491 493 495 495 500 507 507 512 516 531 538 © Copyright held by the NEBRASKA LAW REVIEW * Associate Professor of Law, Salmon P. Chase College of Law at Northern Kentucky University. B.A. Political Science, cum laude, University of Tennessee at Chattanooga; S.T.B., M.A., with honors, St. Mary’s Seminary and University; J.D., University of Cincinnati College of Law. The author thanks his faculty colleagues at the Salmon P. Chase College of Law for their suggestions and insights during the development of this Article and his research assistant, Wes Abrams, for his tireless and valuable work on this Article. The author also thanks Professor Thomas Metzloff of Duke University School of Law, Professor Richard Freer of Emory University School of Law, Professor Michael Hoffheimer of University of Mississippi School of Law, as well as all the participants in the Civil Procedure New Scholar Workshop at the 2015 conference of the Southeastern Association of Law Schools and the faculty at Ohio Northern University Pettit College of Law, for their insights and encouragement in the development of this Article. The author alone is responsible for any errors and for the content of the Article. 477 478 NEBRASKA LAW REVIEW [Vol. 95:477 I. INTRODUCTION “Whenever you get there, there is no there there.”1 —Gertrude Stein The United States Supreme Court’s recent decisions in Goodyear2 and Daimler3 significantly narrowed the traditional understanding of general personal jurisdiction. Historically, general personal jurisdiction concerned only the defendant’s relationship with the forum, allowing plaintiffs to sue defendants in a particular jurisdiction irrespective of the claim at issue or where that claim arose.4 Personal jurisdiction was initially limited to strict territorial limits.5 Due to advancements in technology, the Court expanded personal jurisdiction with the introduction and development of minimumcontacts analysis.6 The impetus for this initial expansion of personal jurisdiction from territorial limits to minimum contacts was the concern that potential defendants could enjoy the benefits and protections of a specific state’s laws while simultaneously being able to dodge the repercussions of potential liability within that state. Following the Court’s decision in International Shoe,7 lower courts and those who teach civil procedure did not question the assertion that general personal jurisdiction exists where a corporate defendant is incorporated and where it has its principal place of business. Such an articulation of general jurisdiction was, in effect, simply an articulation of domicile jurisdiction that had existed since Pennoyer.8 However, in addition to this very narrow understanding of general jurisdiction, lower courts and academics also assumed that general jurisdiction could be based on a foreign corporation’s activities within the forum state, concluding that general jurisdiction over a defendant may be found where that defendant’s contacts with the forum state were “continuous and systematic.”9 1. 2. 3. 4. 5. 6. 7. 8. 9. GERTRUDE STEIN, EVERYBODY’S AUTOBIOGRAPHY 289 (1937). Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011). Daimler AG v. Bauman, 134 S. Ct. 746 (2014). See Leo Brilmayer et al., A General Look at General Jurisdiction, 66 TEX. L. REV. 721, 727 (1988). See discussion infra Parts II–III. Allan R. Stein, The Meaning of “Essentially at Home” in Goodyear Dunlop, 63 S.C. L. REV. 527, 531–32 (2012); Alan M. Trammell, A Tale of Two Jurisdictions, 68 VAND. L. REV. 501, 506 (2015) (citing Mary Twitchell, The Myth of General Jurisdiction, 101 HARV. L. REV. 610, 620–21 (1988)). Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945). Jack B. Harrison, Here and There and Back Again: Drowning in the Stream of Commerce, 44 STETSON L. REV. 1, 5–9 (2014). Carol Andrews, Another Look at General Personal Jurisdiction, 47 WAKE FOREST L. REV. 999, 1069 (2012); Charles W. Rhodes, Clarifying General Jurisdiction, 34 SETON HALL L. REV. 807, 812 (2004); Sarah R. Cebik, “A Riddle Wrapped in a Mystery Inside an Enigma”: General Personal Jurisdiction and Notions of Sover- 2016]REGISTRATION, FAIRNESS, GENERAL JURISDICTION 479 With Goodyear and Daimler, the Court rejected the traditional understanding of general jurisdiction based on a defendant corporation’s activities within the forum state, adopting an almost exclusively domicile basis for general jurisdiction.10 These decisions swept away years of lower court decisions that found general jurisdiction over corporate defendants based on corporate activities in the forum state.11 In Goodyear and Daimler, the Court rejected arg (...truncated)