Mallory v. Norfolk Southern Just Got A Lot More Real

If the Supreme Court upholds Pennsylvania's personal jurisdiction statute, residents of East Palestine, Ohio can sue the railroad in Philadelphia.

As a practical matter, what is the most consequential Supreme Court case this term? No, it is not Students for Fair Admission or Moore v. Harper. These constitutional law decisions will affect things that law professors care about, but most people will barely even notice. I've long thought the most consequential decision is also a sleeper case: Mallory v. Norfolk Southern. This case concerns personal jurisdiction. To grossly summarize, the question presented is whether Pennsylvania can require businesses to consent to personal jurisdiction in order to do business in the Commonwealth. In this case, a Virginia resident sued a Virginia corporation for injuries that arose in Virginia and Ohio. And the plaintiff filed suit in Philadelphia. The tort had no "minimum contacts" with Pennsylvania. Personal jurisdiction could only be premised on the registration statute.

I covered this case in my Supreme Court seminar, and we were fortunate to have counsel for petitioner (Ashley Keller) and respondent (Carter Phillips), as well as amicus (Steve Sachs) speak to our students over Zoom. Based on my gross read of the transcript, I think there are four votes for the plaintiff here, but I'm not sure there are five. And the votes here will not line up along ideological lines.

In light of recent events, this case has became even more important. In early February, Norfolk Southern Railway had a horrific derailment in East Palestine, Ohio. The incident leaked millions of pounds of toxic chemicals into the environment. Thousands of people have had to evacuate. The impact of this derailment is difficult to quantify.

As could be expected, trial lawyers are lining up across the region to represent affected people. Of course, the issue will arise about the ideal forum. And trial lawyers, like state attorneys general, will forum shop. If the Supreme Court blesses Pennsylvania's registration regime, perhaps some of the plaintiffs will choose to file suit against Norfolk Southern in a Philadelphia trial court. Or Illinois may choose to enact a similar regime, Welcome to Cook County, Norfolk Southern! It does not seem the company has any tracks in California, but I'm sure they can find a hook.

Mallory just got a lot more real.

Comments

[Archibald Tuttle]

Thinking of legislatures rather than courts, I wonder if Ohio could pass a law banning operation of any railroad within the state. The rights of way would be forfeited, the rails and ties and other RR owned equipment returned to the RR company. RR right of ways could be turned into bike trails.

The RR could certainly re-route their trains through neighboring states. Consumers in Ohio, should be prepared for some cost increases as goods destined for Ohio have to get there by other means.

[John F. Carr]

Railroads are heavily regulated by the federal government. Ohio can not ban railroads.

[Dr. Ed 2]

That was my first thought on all of this -- and I don't see how a PA state court would have jurisdiction of a case where neither party has any nexis to that state.

[Noscitur a sociis]

Did you try reading about the case that is the topic of this post

[Sarcastr0]

One of my law prof friends is teaching Civil Procedure and spotted this. I’m not that old, and yet nevertheless a lot has changed with respect to jurisdiction since I was in law school. The test for personal jurisdiction is simpler than the dual inquiry I learned. This would have wider ranging functional implications than that.

This is a fun one – dorky procedure with big monetary implications but also no real face to it. Very academic, yet quite important. A rare combo!

[Ridgeway]

Isnt this a venue issue or a forum non conveniens issue, rather than a PJ issue? It has been a long time since Civ Pro, but I thought parties could always consent to a particular jurisdiction, but the court could still give them the boot if that location didn't make sense.

[mse326]

It's both, but PJ is really important because the court wouldn't have any discretion. If there isn't PJ, then they can't hear the case, and the question is whether mandating PJ violates the due process clause if it is only about being registered to do business.

The other two are in the discretion of the trial judge and don't really give rise to any constitutional issues so you would be at the mercy of the judge with maybe a small amount of review for abuse of discretion

[Sarcastr0]

I also learned parties can consent to personal jurisdiction (that was used to contrast with subject matter jurisdiction) but now that's in question - does it count as consent if it's a pro-forma requirement and the consent is basically pretextual?

It's one of those questions based less on text and more on logic and precedent. My feeling is that I don't like this requirement - the lack of an overt action for jurisdiction to attach doesn't seem in keeping with the purpose of PJ.

[David Nieporent]

Parties can consent to a particular jurisdiction. The issue here is what is deemed consent. The state of Pennsylvania has declared that any corporation that registers as a foreign corporation in the state is deemed to have consented to general jurisdiction in that state.

[Currentsitguy]

Very interested to see how this plays out. We're 14.5 miles away from East Palestine, downwind. We are told we are fine, even though the odor was palpable here, people in the area have unexplained skin lesions, and livestock and pets have had unexplained deaths.

I am very concerned about our well, and the soil in our gardens. We spoke with a private testing firm yesterday about testing our soil for dioxins.

Frankly I'm even apprehensive to go out and rake up the leaves and winter debris from the yard.

To think this stopped a mile from town is ludicrous.

[Dr. Ed 2]

I don't know if this is good or bad news, but it would take months, probably years, to contaminate your well -- if it were going to do so.

[John F. Carr]

Delaware wants to be the state where you go to incorporate. One of the Dakotas wants to be the state where you go to commit usury. I can imagine a state marketing itself as a haven for tort lawyers. The choice of law doctrine in Tortistan is simple... the plaintiff always wins.

[Noscitur a sociis]

Doesn't seem like that state would be a very appealing place to do business.

[Dr. Ed 2]

Could PA have prevented N/S from operating trains in PA if N/S hadn't agreed to this jurisdiction?

My guess is that SCOTUS will duck this by saying something to the effect that PA doesn't have the authority to require an out of state railroad to register with the state because of (a) the commerce clause and (b) all the Federal laws & regs governing railroads.

It would be one thing if there were some nexis to PA -- and they gotta know that a ruling against N/S here would create the political hot potato of the Ohio cases going to PA.

Question: Could OHIO pass a similar law now and let victims sue in OH without it being ex post facto?

[mse326]

SCOTUS I believe has said ex post facto clause only applies to criminal laws. Whether Ohio state law is different, I don't know.

But I have to imagine the laws already on the books would give more than enough to allow suit in the East Palestine incident in Ohio. You don't get more connected to the state than that.