In June 2019, Judge Robreno of the Eastern District of Pennsylvania federal court held that the Pennsylvania statutory business registration scheme’s purported conferral of consent to general personal jurisdiction in exchange for a company’s ability to legally do business in Pennsylvania was unconstitutional under Due Process Clause. Sullivan v. A.W. Chesterton, Inc., et al. (In re Asbestos Products Liab. Litig. (No. VI)), 384 F.Supp.3d 532 (E.D. Pa. 2019). According to Judge Robreno,
In 2014, the [U.S.] Supreme Court decided the case of Daimler AG v. Bauman [571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014)] which brought about a sea change in the jurisprudence of exercising general personal jurisdiction over a foreign corporation. Daimler held that under the Due Process Clause, subjecting a foreign corporation to general jurisdiction in every state in which it “engages in a substantial, continuous, and systematic course of business” was “unacceptably grasping.” Under Daimler, the exercise of general jurisdiction over a foreign defendant (except in extraordinary circumstances) was limited to where the corporation was “at home,” namely, the forums in which the foreign corporation is incorporated and where it maintains its principal place of business.
Pennsylvania has long had a statute which requires a foreign corporation wishing to do business in Pennsylvania to register in Pennsylvania. Correspondingly, Pennsylvania law provides that such registration constitutes a sufficient basis for the exercise of general personal jurisdiction over the foreign corporation.
Federal and state courts in Pennsylvania have struggled to divine the applicability of Daimler to the Pennsylvania registration scheme with mixed results. Building on that jurisprudence, this Court concludes that: (1) the Pennsylvania statutory scheme that requires foreign corporations to register to do business and, therefore, to consent to general personal jurisdiction in Pennsylvania, offends the Due Process Clause and is unconstitutional; and (2) the Third Circuit’s pre‑Daimler decision in Bane v. Netlink, Inc. [925 F.2d 637 (3d Cir. 1991)], finding that, by registering to do business in Pennsylvania, a foreign corporation consents to general personal jurisdiction, is irretrievably irreconcilable with the teachings of Daimler, and can no longer stand.
384 F.Supp.3d at 534. Judge Robreno’s analysis was characterized by certain defense interests as “boldly [laying] that struggle [to divine the applicability of Daimler to the Pennsylvania registration scheme] to rest with his decision in the Asbestos Litigation case.”
However, analysis of the Daimler decision by the district courts of Pennsylvania has overwhelmingly determined that Daimler (contrary to Judge Robreno’s characterization of the issue as “a struggle”) did not repudiate the concession of jurisdiction represented by a company’s registration to conduct business in Pennsylvania, and instead the courts continued to rely on the current precedent of the Third Circuit in Bane, which had held before Daimer that “Consent is a traditional basis for assertion of jurisdiction long upheld as constitutional.” 925 F.2d at 641.
Because Daimler did not address the due process limits on consent as a basis for general jurisdiction, district courts in Pennsylvania have uniformly rejected the argument that Daimler overturned “the longstanding rule that ‘a corporation that applies for and receives a certificate of authority to do business in Pennsylvania consents to the general jurisdiction of state and federal courts in Pennsylvania.’ ” [Aetna Inc. v. Mednax, Inc., 2018 WL 5264310, at *5 (E.D. Pa. Oct. 23, 2018)] quoting Webb‑Benjamin, LLC v. Int’l Rug Grp., LLC, 192 A.3d 1133, 1138 (Pa. Super. Ct. 2018) ); accord Youse v. Johnson & Johnson, No. 18‑3578, 2019 WL 233884, at *3‑4 (E.D. Pa. Jan. 16, 2019); Shipman v. Aquatherm L.P., No. 17‑5416, 2018 WL 6300478, at *2 (E.D. Pa. Nov. 28, 2018); Mendoza v. Electrolux Home Prods., Inc., No. 17‑2028, 2018 WL 3973184, at *3‑4 (M.D. Pa. Aug. 20, 2018); Allstate Ins. Co. v. Electrolux Home Prods., No. 18‑699, 2018 WL 3707377, at *3‑5 (E.D. Pa. Aug. 3, 2018); Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278, 297‑98 (M.D. Pa. 2018); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., No. 16‑665, 2017 WL 3129147, at *10‑11 (E.D. Pa. July 24, 2017); Hegna v. Smitty’s Supply, Inc., No. 16‑3613, 2017 WL 2563231, at *3‑4 (E.D. Pa. June 13, 2017); Bors v. Johnson & Johnson, 208 F. Supp. 3d 648, 652‑55 (E.D. Pa. Sept. 20, 2016)
Aetna Inc. v. Kurtzman Carson Consultants, LLC, 2019 WL 1440046, at *5 (E.D. Pa. Mar. 29, 2019). Until Judge Robreno’s June 2019 opinion, precedent overwhelmingly held that “a foreign corporation’s registration to do business in Pennsylvania establishes consent to personal jurisdiction.” Williams v. Takeda Pharm. Am., Inc., 2019 WL 2615947, at *3 (E.D. Pa. June 26, 2019). See also, Sciortino v. Jarden, Inc., 395 F.Supp.3d 429, 437 (E.D. Pa. 2019) (“Importantly, the Supreme Court’s holding in Daimler did not rule out consent as a basis for establishing personal jurisdiction over a corporation that registers to do business in Pennsylvania. This caveat has essential jurisdictional effects on foreign corporations….”).
Moreover, rather than represent a “bold laying to rest” of the Daimler jurisdictional struggle in Pennsylvania, Judge Robreno’s opinion has been mostly disregarded by fellow jurists in the district court. Cases in the Eastern District of Pennsylvania since Sullivan have continued to follow the Bane precedent, especially in the absence of any subsequent Third Circuit guidance; indeed, the maintenance of the precedent of jurisdictional-consent-by-registration has continued to be the holding of the Eastern District of Pennsylvania even as recently as the last few weeks, when Judge DuBois ruled:
This Court concludes that Daimler does not disrupt the central conclusion of Bane: that registration “carries with it consent to be sued in Pennsylvania courts.” 925 F.2d at 640–41. See, e.g., Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 16‑cv‑665, 2017 WL 3129147, at *11 (E.D. Pa. July 24, 2017) (holding that Daimler did not “address[ ] the interplay between consent to jurisdiction and the due process limits of general jurisdiction”). In fact, the Bane court noted that, in recognizing general personal jurisdiction by registration, it “need not decide whether authorization to do business in Pennsylvania is a ‘continuous and systematic’ contact with the Commonwealth for purposes of the dichotomy between ‘general’ and ‘specific’ jurisdiction.” 925 F.2d at 640. Accordingly, this Court, like many other Pennsylvania district courts following Daimler, concludes that registration remains a sufficient basis for personal jurisdiction under current Third Circuit law. Thus, the Court may exercise general personal jurisdiction over Serene.
Healthcare Services Group, Inc. v. Milciades Moreta, & Serene Health Services LLC, 2019 WL 6117353, at *6 (E.D. Pa. Nov. 15, 2019) (emphasis added) (citing inter alia, Youse, supra; Gorton v. Air & Liquid Sys. Corp., 303 F. Supp. 3d 278, 296-97 (M.D. Pa. 2018); Mendoza v. Electrolux Home Prods., Inc., 2018 WL 3973184, at *3‑*4 (M.D. Pa. Aug. 20, 2018); Allstate Ins. Co., supra; Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., 2017 WL 3129147 (E.D. Pa. July 24, 2017); Hegna, supra; and Bors v. Johnson & Johnson, 208 F. Supp. 3d 648, 655 (E.D. Pa. 2016). See also, Williams, supra, 2019 WL 2615947, at *3 (“Without any further analysis from the Supreme Court or the Third Circuit, a foreign corporation’s registration to do business in Pennsylvania establishes consent to personal jurisdiction.”); Aetna Inc. v. Kurtzman Carson Consultants, LLC, 2019 WL 1440046, at *6 (E.D. Pa. Mar. 29, 2019) (“… absent any indication from the Third Circuit that Bane is no longer good law[,] this Court will continue to adhere to Bane.”). See also, Sokolove v. Continental Tire The Americas, No. 2:19-CV-05049-NIQA, Order of Judge Quiñones Alejandro, November 26, 2019 (“Although the Bane decision preceded the Supreme Court’s decision in Daimler, Bane has not been overturned nor did the Daimler decision disrupt the Bane holding. Further, the majority of district courts in this Circuit have concluded that Bane remains good law.”)
Importantly, the Sullivan opinion has been certified for appeal to the Third Circuit, but in the meantime, and until the Third Circuit speaks to the issue, it appears that jurisdiction still may be found against a foreign corporation if it has registered to do business here.