Civil Procedure & Federal Courts Blog

SCOTUS Cert Grant on Personal Jurisdiction: Mallory v. Norfolk Southern

Today the Supreme Court granted certiorari in Mallory v. Norfolk Southern Railway Co. Here is the question presented:

“Nearly 80 years removed from International Shoe, it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1038 (2021) (Gorsuch J., concurring). This petition seeks resolution of an issue that has divided courts around the country. More than a dozen state supreme courts and every federal court of appeals have weighed in on the question with conflicting results.

An unbroken line of this Court’s cases holds that a court may exercise personal jurisdiction with a party’s consent. Corporations enforce that precedent to the letter in their contracts of adhesion, requiring flesh and blood consumers to litigate disputes with businesses in often-distant tribunals. E.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). Turnabout should be fair play (and is, incidentally, consistent with substantial justice). Consistent with that rule, states have enacted laws requiring corporations operating within their boundaries to consent to personal jurisdiction when they register to do business in those states. The Pennsylvania Supreme Court found such a statute unconstitutional under this Court’s decision in International Shoe v. Washington, 326 U.S. 310 (1945), and its progeny. That erroneous result is but the latest decision among dozens that are squarely divided on the question presented:

Whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

You can find the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

Some Interesting SCOTUS Decisions: Boechler, Brown & Cassirer

Yesterday’s busy Supreme Court opinion day featured a number of interesting decisions:

• In Boechler v. Commissioner, the Court once again weighed in on whether a litigation-related deadline is jurisdictional and, if not, whether it is subject to equitable tolling. The case involves 26 U.S.C. § 6330(d)(1)’s 30-day deadline for petitioning the Tax Court to review certain determinations by the Internal Revenue Service. Writing for a unanimous Court, Justice Barrett concludes that it “is an ordinary, nonjurisdictional deadline subject to equitable tolling.”

• Brown v. Davenport involves the relationship between the deferential standard of review in the AEDPA [28 U.S.C. § 2254(d)(1)] and the requirement that any state court error cause sufficient prejudice to the defendant under Brecht v. Abrahamson, 507 U.S. 619 (1993). Writing for a six-justice majority, Justice Gorsuch concludes that “a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.” Justice Kagan authors a dissenting opinion, joined by Justices Breyer and Sotomayor, calling the majority’s approach “pointless” because “the Brecht standard ‘obviously subsumes’ the ‘more liberal’ AEDPA one: If a defendant meets the former, he will ‘necessarily’ meet the latter too.” The opinions also include a robust exchange regarding the history of habeas corpus that is well worth a read.

• And in Cassirer v. Thyssen-Bornemisza Collection Foundation, the Court considered what choice-of-law rule governs claims against a foreign state or instrumentality under the Foreign Sovereign Immunities Act. Justice Kagan’s opinion for a unanimous Court holds that courts should apply “whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party.” In a property-law dispute (this case was a suit to recover expropriated property), that means using “the forum State’s choice-of-law rule, not a rule deriving from federal common law.”

 

 

Campos on Gilles on Arbitration Reform Legislation

Today on the Courts Law section of JOTWELL is Sergio Campos’s essay, Talking the Talk to Walk the Walk. Sergio reviews recent congressional testimony by Myriam Gilles, Justice Restored: Forced Arbitration and the Erosion of our Legal System: Hearing on H.R. 963 Before the Subcomm. on Antitrust, Commercial, and Administrative Law, 117 Cong. __ (2021), and Silenced: How Forced Arbitration Keeps Victims of Sexual Violence and Sexual Harassment in the Shadows: Hearing Before the H. Comm. on the Judiciary, 117 Cong. __ (2021).

 

 

Fourth Circuit Remands Baltimore Climate Change Suit to State Court

Today the Fourth Circuit issued a unanimous decision in Mayor & City Council of Baltimore v. BP P.L.C., on remand from last year’s Supreme Court decision (covered here). Judge Floyd’s 93-page opinion, joined by Chief Judge Gregory and Judge Thacker, affirms the district court’s order remanding the case to Maryland state court. It begins:

This appeal returns to us on remand from the Supreme Court, and we are now tasked with examining the entirety of the district court’s remand order to determine if the climate-change lawsuit in question was properly removed to federal court. BP P.L.C. v. Mayor & City Council of Balt., 141 S. Ct. 1532, 1538, 1543 (2021). To accomplish that charge, we must evaluate eight distinct grounds for removal that twenty-six multinational oil and gas companies (Defendants) maintain provide federal jurisdiction over the Mayor and City Council of Baltimore’s (Baltimore) climate-change action. Because we conclude that none of Defendants’ bases for removal permit the exercise of federal jurisdiction, we affirm the district court’s remand order.

For those keeping score, the “eight distinct grounds” are:

(1) federal common law; (2) substantial issues of federal law, including foreign affairs, under Grable; (3) complete preemption under the CAA, 42 U.S.C. §§ 7401–7671q; (4) federal enclaves; (5) the OCSLA, 43 U.S.C. § 1349(b)(1); (6) the bankruptcy removal statute, 28 U.S.C. § 1452(a); (7) the admiralty jurisdiction statute, 28 U.S.C. § 1333(1); and (8) the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

The opinion concludes:

The impacts of climate change undoubtably have local, national, and international ramifications. See Massachusetts, 549 U.S at 521–53 (noting that the harms associated with climate change are “serious and well recognized”). But those consequences do not necessarily confer jurisdiction upon federal courts carte blanche. In this case, a municipality has decided to exclusively rely upon state-law claims to remedy its own climate-change injuries, which it perceives were caused, at least in part, by Defendants’ fossil-fuel products and strategic misinformation campaign. These claims do not belong in federal court. Given the jurisdictional inquiry before us, we take no view on whether Baltimore will ultimately fail or succeed in proving its claims under Maryland law. We cannot decide those questions. But we are confident that Maryland courts can capably adjudicate claims arising under their own laws that fail to otherwise provide any federal jurisdiction. * * * 

 

 

 

Bartholomew on Borchers on Personal Jurisdiction

Today on the Courts Law section of JOTWELL is Christine Bartholomew’s essay, A Post Minimum Contacts World. Christine reviews Patrick Borchers’ recent article Ford Motor Co. v. Montana Eighth Judicial District Court and “Corporate Tag Jurisdiction” in the Pennoyer Era, 72 Case W. Res. L. Rev. 45 (2021).