In a decision handed down Tuesday, February 28, the Missouri Supreme Court limited circumstances in which out-of-state corporate defendants will be subject to personal jurisdiction, rejecting two novel theories of specific jurisdiction by consent. The Missouri Supreme Court has closed the door to plaintiffs whose cases should be brought elsewhere but who are trying to bring them in Missouri courts. This ruling should have an immediate impact on toxic tort and mass tort cases, such as the asbestos personal injury litigation and the talc ovarian cancer claims that out-of-state plaintiffs are filing and trying in Missouri.

State ex rel. Norfolk Southern Railway Company v. Dolan, SC95514 was a FELA personal injury lawsuit filed in St. Louis County by an Indiana resident who alleged cumulative trauma injury sustained during his employment with Norfolk in Indiana. Norfolk is a Virginia corporation with its principal place of business in Virginia.  Even though Norfolk does "substantial and continuous business" in Missouri, the court found that Norfolk did business in at least 22 states, and that only 2% of its business was done in Missouri. The Court found those facts were not sufficient to subject Norfolk to general jurisdiction when it is not incorporated in Missouri and does not maintain its principal place of business in Missouri.

The Court reiterated and reaffirmed the U.S. Supreme Court's guidance in Daimler AG v. Bauman, 134 S. Ct. 746 (2014) that a defendant will be subject to general jurisdiction outside its state of incorporation or principal place of business only in "exceptional cases." "When a corporation is neither incorporated nor maintains its principal place of business in a state, mere contacts, no matter how 'systematic and continuous,' are extraordinarily unlikely to add up to an 'exceptional case.'" Otherwise, the Court reasoned, following the reasoning in Daimler, "finding a corporation at home wherever it does business would destroy the distinction between general and specific jurisdiction."

The Court specifically pointed out and rejected the plaintiff's attempt to "blur the distinction between general and specific jurisdiction." Addressing the plaintiff's alternative argument that Norfolk's participation as a defendant in prior Missouri lawsuits constituted a consent to jurisdiction in general in Missouri courts, the Court noted that those prior lawsuits were based on specific jurisdiction and had little, if any, bearing on the case at hand. The contacts that will allow for jurisdiction over a company in one lawsuit do not automatically allow for jurisdiction over that same company in a later lawsuit: "The minimum contacts that suffice to provide specific jurisdiction over such a particular Missouri-related lawsuit do not also confer general jurisdiction over a particular company for a non-Missouri related lawsuit."

There was also no specific jurisdiction over Norfolk here because specific jurisdiction only exists if the plaintiff's claims arise out of or relate to Norfolk's business in Missouri. "Unrelated lawsuits can be brought in the forum only when the forum has general jurisdiction." The plaintiff argued that Norfolk could be subject to specific jurisdiction because the business it engaged in Missouri is of the same "type" of business out of which the lawsuit arose (railroad business). The Court rejected this argument outright: "To say this same conduct confers specific jurisdiction over suits the facts of which have no relationship to the forum state would be to turn specific jurisdiction on its head. There would never be a need to discuss general jurisdiction, for every state would have specific jurisdiction over every national business corporation."

Finally, the plaintiff argued that Norfolk had consented to jurisdiction by appointing a registered agent for service of process, as required by Missouri's corporate registration statutes.  Echoing its concerns with finding jurisdiction based on a theory of specific jurisdiction based on the same "type" of activity, the Court observed that "a broad inference of consent based on registration would allow national corporations to be sued in every state, rendering Daimler pointless." Declining to decide whether such an interpretation would comport with due process, the Court held that the plain language of Missouri's registration statutes does not provide an independent basis for general jurisdiction over a non-Missouri corporation.

This decision, written by Judge Stith and joined by Judges Breckenridge, Fischer, Draper, Wilson and Russell, , implicitly overrules numerous Missouri trial court orders issued after Daimler that had held that maintaining a registered agent acts as consent to jurisdiction in Missouri regardless of the lawsuit's connections to Missouri. The Norfolk decision also stands in direct contrast a recent California Supreme Court case holding that corporate defendants may be subject to specific jurisdiction so long as the non-resident plaintiff's claims are based on a similar type of activity as, or have a "substantial connection" to, the type of activity performed by the defendant in the forum state.  See Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874, 888 (Cal. 2016). The U.S. Supreme Court recently granted certiorari to review the Bristol-Myers Squibb case.