Tyler v. Lane

Filing 29

(Directives in paragraphs 1. and 2. on page 25 ARE VACATED PURSUANT TO THE COURT'S #36 ORDER) MEMORANDUM OPINION AND ORDER: it is ORDERED:1.) Ford Motor Company's Motion to Dismiss (Doc. #12 ) is GRANTED; 2) Plf's claims against Ford Motor Company are DISMISSED without prejudice for lack of personal jurisdiction; and 3) The Clerk of the Court is DIRECTED to terminate Ford Motor Company from the docket sheet and to change the caption accordingly. A final judgment will be entered separately. This case will remain open as Plf's claims against Def Lane are still pending. Signed by Honorable Judge William Keith Watkins on 11/17/2021. (cwl, ) Modified on 1/13/2022 (cwl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LISA F. TYLER, individually and as
personal representative of the estate of
Donald P. Tyler, deceased,
Plaintiff,
v.
FORD MOTOR COMPANY and
BOBBY FRANK LANE,
Defendants.

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CASE NO. 2:20-CV-584-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Ford Motor Company’s Motion to Dismiss for Lack of
Personal Jurisdiction. (Doc. # 12.) The question is whether Ford’s actions in
Alabama are sufficient to subject Ford to the personal jurisdiction of this court. For
the reasons stated below, they are not. Ford’s motion to dismiss is therefore due to
be granted.
I. BACKGROUND
On November 1, 2019, decedent Donald Tyler was driving a 2001 Ford F-250
while towing a trailer. Plaintiff Lisa Tyler was a passenger in the vehicle. While
driving on I-65 North in Chilton County, Alabama, Defendant Bobby Frank Lane
side-swiped the rear of the F-250, causing Mr. Tyler to lose control and crash into
the median cable barrier. (Doc. # 1 at 2.) Plaintiff alleges that both occupants were

properly wearing their seatbelts when the F-250 rolled over, landing on the roof of
the vehicle. The roof deformed, and the left side pillars collapsed due to the
allegedly defective nature of the vehicle. (Doc. # 1 at 2–3.) Decedent Donald Tyler
died in the crash, and Plaintiff Lisa Tyler suffered extensive injuries. (Doc. # 1 at
3.) Plaintiff Lisa Tyler brought suit against Ford Motor Company and Bobby Frank
Lane on behalf of herself and the estate of decedent Donald Tyler.
Defendant Ford is a Delaware corporation with its principal place of business
in Michigan. (Doc. # 1 at 2.) Ford has extensive contacts with the State of Alabama.
Through national and Alabama-specific advertisements, it regularly reaches out and
encourages Alabama citizens to become Ford owners. Ford partners with hometown
staples such as The University of Alabama and Auburn University to target and
service the Alabama market. It regularly ships vehicles and replacement parts to
Alabama. (Doc. # 20 at 10–13; Doc. # 21-2; Doc. # 21-3; Doc. # 21-5.)
Plaintiff and decedent, however, were not Alabama residents. Plaintiff is—
and decedent was—a resident of the state of Florida. (Doc. # 1 at 1; Doc. # 20 at 2.)
The vehicle at issue was designed by Ford in Michigan, manufactured in Mexico,
and sold to an independent dealership in Tennessee.

Plaintiff and decedent

purchased their Ford vehicle in Panama City, Florida. The vehicle has never been
registered in any state other than Tennessee and Florida. (Doc. # 21-4.) It appears

2

that the F-250 was only present in the state of Alabama because Plaintiff and
decedent chose to drive into Alabama that day.
II. JURISDICTION AND VENUE
Subject matter jurisdiction is proper under 28 U.S.C. § 1332, as Plaintiff is a
citizen of the state of Florida; the decedent was a citizen of the state of Florida;
Defendant Ford is a Delaware corporation with its principal place of business in
Michigan; Defendant Lane is a citizen of the state of Alabama; and the amount in
controversy exceeds seventy-five thousand dollars. The parties do not contest
venue. Personal jurisdiction is contested as explained herein.
III. STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Rule 12(b)(2), “the plaintiff bears
the burden of establishing a prima facie case of jurisdiction over the movant, nonresident defendant.” Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).
However, the court “must construe the allegations in the complaint as true, to the
extent they are uncontroverted by defendant’s affidavits or deposition testimony.”
Id. Additionally, “where the evidence presented by the parties’ affidavits and
deposition testimony conflicts, the court must construe all reasonable inferences in
favor of the non-movant plaintiff.” Id.
The court may exercise personal jurisdiction over Ford only to the extent
authorized by rule or statute, and only so long as that rule or statute is consistent with
3

established due process principles. The constitutional question involves a two-part
inquiry. First, the defendant must have sufficient “minimum contacts” with the
forum state. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Second, the
exercise of jurisdiction must comport with “traditional notions of fair play and
substantial justice.” Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This
second part of the inquiry looks at such factors as “the burden on the defendant”;
“the forum State’s interest in adjudicating the dispute”; “the plaintiff’s interest in
obtaining convenient and effective relief”; “the interstate judicial system’s interest
in obtaining the most efficient resolution of controversies; and the shared interest of
the several States in furthering fundamental substantive social policies.” WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980).
The constitutional limits on personal jurisdiction “protect[] the defendant
against the burdens of litigating in a distant or inconvenient forum” and “act[] to
ensure that the States through their courts, do not reach out beyond the limits
imposed on them by their status as coequal sovereigns in a federal system.” Id.
There are two ways to satisfy this personal jurisdiction test—both requiring
different “minimum contacts” and both being at issue in this case. The first is called
“general” personal jurisdiction, and the second is called “specific” personal
jurisdiction. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.15 (1985).
4

General personal jurisdiction, also called “all-purpose” jurisdiction, requires
contacts that “are so ‘continuous and systematic’ as to render [the Defendant]
essentially at home in the forum State.” Goodyear, 564 U.S. at 919 (quoting Int’l
Shoe, 326 U.S. at 317). If a defendant is subject to the general jurisdiction of a state,
then personal jurisdiction will be satisfied for any suit brought against it in that state,
no matter where any suit-related events occurred.

Absent exceptional

circumstances, corporations will be “at home” only in their state of incorporation
and the state of their principal place of business. Daimler AG v. Bauman, 571 U.S.
117, 139 (2014); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408 (1984); Perkins v. Benguet Consol. Min. Co., 342 U.S. 437 (1952). The
state of incorporation and the principal place of business are “unique” and “easily
ascertainable,” and opening those fora “afford[s] plaintiffs recourse to at least one
clear and certain forum in which a corporate defendant may be sued on any and all
claims.” Daimler, 571 U.S. at 137. A corporation is not subject to general
jurisdiction anywhere where it “engages in a substantial, continuous, and systematic
course of business,” id. at 138, as conducting business in a state is one thing but
making the state the “home” of the corporation is quite another. See id. at 139 n.19.
Specific personal jurisdiction is different. Although it extends beyond the
home jurisdictions of the defendant, it does not work for all claims brought against
the defendant. First, the contacts with the forum state must rise to the level of
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“purposeful availment”: “[I]t is essential in each case that there be some act by
which the defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.” Burger King, 471 U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235,
253 (1958)). The contacts, to be purposeful, must be intentional and not “random,
isolated, or fortuitous.” Keeton v. Hustler Mag., Inc., 465 U.S. 770, 774 (1984).
Second, if the defendant has deliberately made contact with the forum state, “‘the
suit’ must ‘arise out of or relate to the defendant’s contacts with the forum.’” BristolMyers Squibb Co. v. Superior Ct. of Calif., San Francisco Cnty., 137 S. Ct. 1773,
1780 (2017) (alterations adopted) (emphasis omitted) (quoting Daimler, 571 U.S. at
118).
In other words, there must be “an affiliation between the forum and the
underlying controversy, principally, an activity or an occurrence that
takes place in the forum State and is therefore subject to the State’s
regulation.” For this reason, “specific jurisdiction is confined to
adjudication of issues deriving from, or connected with, the very
controversy that establishes jurisdiction.”
Id. (alteration adopted) (citation omitted) (quoting Goodyear, 564 U.S. at 919).
The Supreme Court had occasion to consider its specific jurisdiction test
earlier this year in Ford Motor Company v. Montana Eighth Judicial District Court,
141 S. Ct. 1017 (2021). Reaffirming longstanding doctrine, the Court said: “When
(but only when) a company ‘exercises the privilege of conducting activities within a
state’—thus ‘enjoying the benefits and protection of its laws’—the State may hold
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the company to account for related misconduct.” Id. at 1025 (alterations adopted)
(emphasis added) (quoting Int’l Shoe, 326 U.S. at 319). Ford argued before the
Supreme Court, as it previously did here,1 that specific jurisdiction could only attach
where there is a strict causal relationship between Ford’s actions and the injury. Id.
at 1026. Essentially, Ford argued that specific jurisdiction was limited to the state
where Ford sold the complained-of vehicle, or the states where Ford designed and
manufactured the vehicle. Id.
The Supreme Court rejected this interpretation. Relying heavily on Daimler’s
“arise out of or relate to” test, the court said that Ford’s activities in the forum state
had a significant relationship with the accident, even though they did not necessarily
have a causal one. The Court held that Ford’s extensive marketing and servicing
operations in the forum states generated a sufficient relationship to the suit:
[T]he owners of these cars might never have bought them, and so these
suits might never have arisen, except for Ford’s contacts with their
home States. Those contacts might turn any resident of [the forum
state] into a Ford owner—even when he buys his car from out of state.
He may make that purchase because he saw ads for the car in local
media. And he may take into account a raft of Ford’s in-state activities
designed to make driving a Ford convenient there: that Ford dealers
stand ready to service the car; that other auto shops have ample supplies
of Ford parts; and that Ford fosters an active resale market for its old
models.

1

Before the Supreme Court’s decision in Ford Motor, the Eleventh Circuit required that
the defendant’s contacts with the forum state be a but-for cause of the injury in order to establish
specific personal jurisdiction. See Waite v. All Acquisition Corp., 901 F.3d 1307, 1315 (11th Cir.
2018).

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Id. at 1029. Although the Court declined to find that a causal link had been
established, it held that the possibility of causation underscored the depth of the
relationship between Ford’s contacts with the forum state and the ownership of the
vehicle. In distinguishing Bristol-Myers, the Court noted: “The plaintiffs are
residents of the forum States. They used the allegedly defective products in the
forum States. And they suffered injuries when those products malfunctioned in the
forum States.” Id. The Court’s conclusion was that personal jurisdiction exists
where “resident-plaintiffs allege that they suffered in-state injury because of
defective products that Ford extensively promoted, sold, and serviced in [the forum
state].” Id. at 1032.
IV. DISCUSSION
A. Specific Personal Jurisdiction
The first question is whether a statute or rule authorizes the exercise of
specific jurisdiction.

Statutes or rules that authorize the exercise of personal

jurisdiction outside of the territorial limits of a court are called long-arm statutes.
Under Rule 4(k) of the Federal Rules of Civil Procedure, this court is authorized to
exercise the same personal jurisdiction that can be exercised by the courts of the
State of Alabama. See Fed. R. Civ. P. 4(k)(1)(A). Alabama law, in turn, extends
service on foreign persons or entities to the limits of the Constitution. See Ala. R.

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Civ. P. 4.2(b). The statutory question thus merges with the constitutional question.
See Morris, 843 F.2d at 492 n.3.
The constitutional question is not so straightforward. Plaintiff says that this
motion can be disposed of as the case is directly analogous to the Supreme Court’s
recent decision against Ford. Ford argues that the Supreme Court’s repeated
mention of the residency of the plaintiffs must imply that a plaintiff’s residency is
relevant to determining the relatedness of the defendant’s contacts to the suit.
There is no question that Ford has purposefully availed itself of the privilege
of conducting business in Alabama. Ford purposefully reaches out to Alabama in a
number of different ways—supplying vehicles to dealerships in Alabama,
advertising in Alabama, maintaining a resale market in Alabama, shipping
replacement parts to Alabama, and so on. Ford admits that its contacts with Alabama
are at least as extensive as its contacts with the forum states in Ford Motor. (Doc. #
26 at 5.) The only question is whether the crash in this case arises out of or relates
to Ford’s contacts with Alabama.
It appears that this case is within the prophesied ambiguity of the Supreme
Court’s new ruling. See Ford Motor, 141 S. Ct. at 1034 (Alito, J., concurring) (“But
without any indication what those limits might be, I doubt that the lower courts will
find that observation [that the phrase ‘relate to’ ‘incorporates real limits’] terribly
helpful.”); see also id. at 1035 (Gorsuch, J., concurring) (“The majority promises
9

that its new test ‘does not mean anything goes,’ but that hardly tells us what does.”).
On the one hand, “arise out of or relate to” is broad wording. Ford’s contacts with
Alabama are “related to” the claim at hand in the sense that it advertises, sells, and
repairs the same kind of vehicle—the Ford F-250—in Alabama. But that is where
the comparison ends. Once the vehicle in this suit separated from its Alabama-bound
counterparts, it lost all relationship with Ford’s contacts to Alabama. There is no
indication that Ford’s contacts with Alabama have anything to do with the Tylers’
ownership of a Ford or Lane’s conduct that led to the crash. Other than marketing
and selling the same vehicle to Alabama customers, Ford’s activities in Alabama
have nothing to do with this case. Despite having no literal relationship with the
events of this case, do Ford’s activities have a strong enough analogical relationship
to meet Daimler’s requirements? They do not.
Lower court rulings following Ford Motor have done little to shed light on
this problem. It is clear that mere purposeful availment remains insufficient to
impart personal jurisdiction if the contacts are not related to the controversy at suit.
See Hepp v. Facebook, 14 F.4th 204, 207 (3d Cir. 2021); Johnson v. UBS AG, 860
F. App’x 531, 533 (9th Cir. 2021). Where the events giving rise to the claim
occurred outside the forum state and the plaintiffs also live outside the forum state,
it is clear that mere analogy to in-state contacts is not enough. See Canaday v.
Anthem Cos., 9 F.4th 392, 400 (6th Cir. 2021); Vallone v. CJS Sols. Grp., LLC, 9
10

F.4th 861, 863 (8th Cir. 2021). One circuit has said, in dicta, that “sales of similar
vehicles and the presence of dealerships in a forum can support personal
jurisdiction,” but that case involved a resident-plaintiff and therefore is not
conclusive on the issue in this case. Trimble Inc. v. PerDiemCo LLC, 997 F.3d 1147,
1156–57 (Fed. Cir. 2021). No circuit cases are directly on point. None discusses
the situation where an individual who resides outside the forum suffers in-forum
injuries from a product that he himself brought into the forum, but which happens to
also be marketed by the defendant in the forum.
It is well-settled that the actions of a plaintiff or third party cannot alone
constitute a basis for personal jurisdiction over a defendant. See Walden v. Fiore,
571 U.S. 277, 286 (2014). The minimum contacts analysis must focus on the
defendant’s actions in the forum state. Id. Thus, the fact that the Tylers drove their
F-250 into Alabama cannot establish personal jurisdiction over Ford. The fact that
Defendant Lane side-swiped the Tylers in Alabama also cannot establish personal
jurisdiction over Ford. Indeed, none of the events with the particular F-250 at issue
can be fairly characterized as contacts that Ford made with Alabama. The only
contacts that Ford made with Alabama—and thus the only contacts upon which
personal jurisdiction can be based—are the other marketing, servicing, repair, and
sales contacts that Ford regularly performs in Alabama.

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Ignoring the fact that the crash occurred in Alabama brings significant clarity
to the situation. Indeed, this case becomes immediately comparable to BristolMyers. In that case, the defendant had distributed the complained-of product all
across the country, including in California, the forum state. 137 S. Ct. at 1783.
However, the plaintiffs did not acquire their products in California and were not
California residents. Id. For the nonresident plaintiffs, the issue of personal
jurisdiction was clear: the defendant’s mere fostering of a market for the product in
California was not enough to confer personal jurisdiction where the specific product
at issue was not sold in California and where the plaintiffs did not buy the product
in or reside in California. Id.
The Supreme Court in Ford Motor said that the “arise out of or relate to” test
still has “real limits.” Ford Motor, 141 S. Ct. at 1026. The Court cringed at the idea
of plaintiffs being able to sue in all fifty states for a local controversy. Id. at 1027
n.3. This kind of unlimited jurisdiction has long been the bogeyman of the Supreme
Court’s personal jurisdiction jurisprudence. See Hanson, 357 U.S. at 251 (“But it is
a mistake to assume that this trend heralds the eventual demise of all restrictions on
the personal jurisdiction of state courts.”). Yet, if Ford’s contacts with Alabama—
related to this case solely because similar products are being marketed, sold, and
repaired—are sufficient to support personal jurisdiction, then there is essentially no
limit on personal jurisdiction against Ford. Ford maintains such a market in every
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state, as do nearly all motor vehicle manufacturers. Personal jurisdiction would
become irrelevant in suits against nationwide companies.
Additionally, the Supreme Court in Ford Motor went to great lengths to
explain how Ford’s contacts with the forum states in those cases were relevant to the
resident-plaintiffs’ claims. 141 S. Ct. at 1028–29. The Court discussed at length the
possibility of causation for resident-plaintiffs. Id. Further, the Court specifically
mentioned the residency of the plaintiffs at least twenty times in the opinion. Id. If
residency were irrelevant, much of the Court’s analysis would be irrelevant. The
Court’s holding—that “resident-plaintiffs [who] allege that they suffered in-state
injury because of defective products that Ford extensively promoted, sold, and
serviced in Montana and Minnesota” can invoke the jurisdiction of their home states,
id. at 32 (emphasis added)—would be too narrow, as it would be unnecessary to
qualify the holding by mentioning the residency of the plaintiff.
It has been said that “everything is related to everything else.” See Waldo
Tobler, A Computer Movie Simulating Urban Growth in the Detroit Region, 46
Economic Geography 234 (1970) (laying out Tobler’s First Law of Geography). But
the Supreme Court was adamant that its “related to” test is not unlimited. In order
for there to be any “real limits” on Ford’s personal jurisdiction, then Ford’s contacts
with Alabama must have some relation to the suit beyond the mere analogical
relationship in this case. Simply serving the forum state’s market—even serving the
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relevant product to the market—is not alone enough of a relationship to meet the
minimum contacts requirement. Accord Mason v. Sony Pictures Ent., Inc., 2021 WL
1663492, at *5 (N.D. Ga. Apr. 28, 2021) (holding that no personal jurisdiction exists
where the only suit-related conduct in the forum was the national airing of the
allegedly trademark-infringing television show).
Ford’s contacts with Alabama have nothing to do with the complained-of
vehicle, and Plaintiff has not drawn any connection between Ford’s contacts and the
events-at-suit. Plaintiff does not explain any relationship between Ford’s Alabama
activities and her vehicle crash. Because of this, Ford’s contacts with the state of
Alabama are insufficient to support the exercise of specific personal jurisdiction in
this case.
B. General Personal Jurisdiction
The prevailing Supreme Court jurisprudence, outlined above, says that
general personal jurisdiction applies wherever a defendant is “at home.” However,
Plaintiff does not argue that Ford is at home in Alabama. Instead, Plaintiff argues
that general jurisdiction is appropriate because Ford has consented to the general
jurisdiction of the state of Alabama. Specifically, Plaintiff argues that Ford has
consented to jurisdiction in Alabama by virtue of Ford’s registering to do business
in the state.

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Plaintiff’s argument is fundamentally inconsistent with the modern view of
general jurisdiction. Even the Supreme Court in its recent decision against Ford
mentioned that “general jurisdiction over Ford . . . attaches in Delaware and
Michigan,” Ford’s state of incorporation and principal place of business
respectively. Ford Motor, 141 S. Ct. at 1024. Modern jurisprudence says that a
company is “at home” only in those places it maintains “continuous and systematic”
contacts—where some central part of the company is located. See Daimler, 571 U.S.
at 137. In almost every case, this will be limited to the company’s state of
incorporation and principal place of business. Id. at 139.
Registering to do business in a state obviously does not create a relationship
with that state that is on the same level as reincorporating in that state or moving the
corporate headquarters to that state. In general, Alabama law requires a corporation
to register before doing business in the state—no matter how minor or sporadic that
business is. See Ala. Code § 10A-1-7.01(c). If Plaintiff’s argument were correct,
then every nationwide and global corporation that is registered in Alabama, even if
it has never in fact conducted business in the state, could be sued in Alabama for any
and all claims against it, even claims based on events in another state or country.
Nevertheless, if case law were written in stone, Plaintiff would have an airtight
argument. In Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912, 914 (Ala. 1991),
the Alabama Supreme Court held that any corporation registered to do business in
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Alabama has consented to the jurisdiction of the Alabama state courts—thereby
seemingly resolving the state law issue. And in Pennsylvania Fire Insurance Co. of
Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95 (1917), the United
States Supreme Court held that a state can require the appointment of a registered
agent for companies doing business in the state and can treat such appointment as
consent to the jurisdiction of the state courts—thereby seemingly resolving the
constitutional issue.
But cases are not written in stone, and these two cases are no longer good law.
1.

Alabama law does not equate registration with consent to
jurisdiction.

Like in any personal jurisdiction analysis, the first question is whether a
statute or rule authorizes the exercise of jurisdiction. As mentioned above, this court
is authorized to exercise the same jurisdiction as the courts of the state of Alabama.
See Fed. R. Civ. P. 4(k). The question therefore is one of Alabama law. When a
federal court must apply the law of one of the several states, it is “bound to decide
the case the way it appears the state’s highest court would.” Risley v. Nissan Motor
Corp. USA, 254 F.3d 1296, 1299 (11th Cir. 2001).
Alabama allows service of process on an out-of-state party under any
circumstance not inconsistent with the Due Process Clause. See Ala. R. Civ. P.
4.2(b). This is the familiar form of a long-arm statute. At least thirty-two of the fifty
states have extended their long-arm statutes to the limits of the Due Process Clause.
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See Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to
the Limits of Due Process, 84 B.U. L. Rev. 491, 496–97, 525–29 (2004) (identifying
twenty states that have done so by statutory text and an additional twelve that have
done so by statutory interpretation). However, Plaintiff does not argue that this
section applies to this case. 2 Instead, Plaintiff argues that another statute, Ala. Code
§ 10A-1-7.32, requires all registered foreign corporations to submit to the general
jurisdiction of the courts of Alabama as a condition of registration. Plaintiff argues
that all registered foreign corporations have essentially consented to be treated the
same as domestic, Alabama corporations—which are obviously amenable to suit in
Alabama because they are “at home” in Alabama.
Plaintiff relies on Ex parte Nissei Sangyo Am., Ltd., 577 So. 2d 912, 914 (Ala.
1991), in support of her argument. In Ex parte Nissei Sangyo, the Alabama Supreme
Court said that:
[The foreign company] has submitted itself to the jurisdiction of the
courts of this state. The basis of the trial court’s jurisdiction of [the
foreign company] comes from its being qualified under § 10–2A–226,
Ala. Code 1975, to do business in Alabama. It has, by its qualification,
submitted itself to the jurisdiction of the trial court. One of the purposes
of the qualification statute is to compel foreign corporations to submit
themselves to the jurisdiction of the courts of this state. See Jones v.
Martin, 15 Ala.App. 675, 74 So. 761 (1917). Once a foreign
corporation designates a place of business and an agent residing at that
2

Of course, an argument based on Rule 4.2(b) of the Alabama Rules of Civil Procedure
would likely be misplaced. Rule 4.2(b) only applies to out-of-state service, and Plaintiff is instead
arguing that her in-state service was equivalent to serving a domestic corporation. See Ala. R. Civ.
P. 4.2(b). The statutory and constitutional questions therefore do not perfectly overlap.

17

place, the corporation is deemed to have submitted to the jurisdiction
of the state courts. Jefferson Island Salt Co. v. E.J. Longyear Co., 210
Ala. 352, 98 So. 119 (1923).
577 So. 2d at 914.3
Although it has never been explicitly overruled, it is clear that Ex parte Nissei
Sangyo is no longer good law. First, the statute that Ex parte Nissei Sangyo relied
upon has been amended since the case was decided in 1991. In 1991, section 102A-227 of the Code of Alabama said:
A foreign corporation which shall have received a certificate of
authority under this chapter shall . . . enjoy the same, but no greater,
rights are privileges as a domestic corporation . . . and . . . shall be
subject to the same duties, restrictions, penalties and liabilities now or
hereafter imposed upon a domestic corporation of like character.
Ala. Code § 10-2A-227 (1991).
Language very similar to this could be found in section 10-2B-15.05 from
1994 to 2009. See Ala. Code § 10-2B-10.05 (1994). In 2009, the Alabama
legislature reorganized this section, dividing the section into two parts. The first,
section 10A-1-7.32, said: “A foreign nonfiling entity or a foreign filing entity
registered under this article enjoys the same but no greater rights and privileges as
the domestic entity to which it most closely corresponds.” Ala. Code § 10A-1-7.32
(2009). The following section, section 10A-1-7.22, said:

3

The fact that the Alabama Supreme Court relied solely on two cases decided before
International Shoe is concerning, but it is obviously not reason to disregard the court’s
interpretation of Alabama law.

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Subject to this title and other laws of this state in any matter that affects
the transaction of intrastate business in this state, a foreign entity and
each member, owner, or managerial official of the entity is subject to
the same duties, restrictions, penalties, and liabilities imposed on a
domestic entity to which it most closely corresponds or on a member,
owner, or managerial official of that domestic entity.
Ala. Code § 10A-1-7.33 (2009).
In 2018, section 10A-1-7.32 was slightly modified: “A foreign entity with a
registration under this article enjoys the same but no greater rights and privileges as
the domestic entity to which it most closely corresponds.” Ala. Code § 10A-1-7.32
(2018). More importantly, the following section, listing the “duties, restrictions,
penalties, and liabilities” of a foreign corporation, was repealed in 2018. Ala. Code
§ 10A-1-7.33 (2018).
“When analyzing statutory history, we presume that a change in the language
of a statute . . . connotes a change in meaning.” Bourdon v. U.S. Dep’t of Homeland
Sec., 940 F.3d 537, 544 (11th Cir. 2019) (quotation marks omitted); see also Antonin
Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts § 40, at
256 (2012). And while Ex parte Nissei Sangyo may have bound this court if it were
interpreting the 1991 version of the statute, the question is whether the Alabama
Supreme Court would give a similar interpretation to the current version of the
statute. The repeal of the “duties, restrictions, penalties, and liabilities” language
implies that foreign corporations are not intended to be subject to the same duties,
restrictions, penalties, and liabilities as domestic Alabama corporations. The duty
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of consenting to the general jurisdiction of the courts of the state of Alabama may
be one such duty that is no longer encompassed by the statute.
But in rulings before and after the repeal, the Alabama Supreme Court has
already made clear that it no longer believes in Plaintiff’s consent theory. First, a
plurality of the Alabama Supreme Court in Hinrichs v. General Motors of Canada,
Ltd., 222 So. 3d 1114, 1159 (Ala. 2016), said that merely maintaining a nationwide
market is not enough to subject oneself to the general jurisdiction of Alabama.
Second, in Facebook, Inc. v. K.G.S., the Alabama Supreme Court rejected an
argument even closer to Plaintiff’s. The plaintiff in that case argued that the foreign
corporation was “subject to general jurisdiction in Alabama because it is registered
to do business in Alabama.” 294 So. 3d 122, 134 (Ala. 2019), reh’g denied (Aug.
23, 2019), cert. denied, 140 S. Ct. 2739 (2020). That argument was rejected by a
majority of the Alabama Supreme Court. Id. Six of the justices joined the opinion;
one justice concurred in the result without a separate opinion; and the remaining two
justices recused themselves. Id. at 147.
While neither Hinrichs nor Facebook explicitly used the word “consent” or
explicitly overruled Ex parte Nissei Sangyo, it is clear that the Alabama Supreme
Court no longer believes in Plaintiff’s consent theory. And for good reason: Waiver
of a constitutional right should not be treated lightly, and a statute that broadly states

20

that a foreign corporation “enjoys the same but no greater rights and privileges”4 as
a domestic corporation is not a clear indication to a foreign corporation “that its
compliance [with the registration requirement] would be construed as consent to
answer in [Alabama]’s courts for any purpose.” Waite v. All Acquisition Corp., 901
F.3d 1307, 1320 (11th Cir. 2018).
Alabama Code section 10A-1-7.32 does not clearly indicate that foreign
corporations are required to submit to the general jurisdiction of the courts of
Alabama as a condition of registration. The Alabama Supreme Court recently
rejected the argument that registration equates to such consent. See Facebook, 294
So. 3d at 134. The court therefore must conclude that Alabama law does not permit
the exercise of general jurisdiction that Plaintiff seeks in this case.
2.

Even if Plaintiff’s consent theory is authorized under Alabama law,
it does not comply with Due Process requirements.

In the ancient days of our republic, a state could not exercise jurisdiction
outside of its territorial boundaries. State jurisdictional statutes therefore had to look
to some in-state activity to latch personal jurisdiction onto. This approach was
typified in the Supreme Court’s 1877 decision in Pennoyer v. Neff, where the Court

4

In a sense, a foreign corporation like Ford can never “enjoy[] the same but no greater
rights and privileges” as Alabama corporations. Alabama corporations can often evade federal
subject matter jurisdiction for claims by Alabama residents brought under Alabama law. See 28
U.S.C. § 1332. Ford cannot. No matter if Ford’s registration is considered consent to personal
jurisdiction, subject matter jurisdiction cannot be conferred by waiver or consent. See Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012).

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held that the improper attachment of in-state property resulted in a lack of
jurisdiction.

See Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (“[N]o tribunal

established by [a state] can extend its process beyond that territory so as to subject
either persons or property to its decisions.”). Some state laws even said that a
person’s driving an automobile on the state’s highways constituted the appointment
of “a designated state official as his agent to accept process,” therefore permitting
the exercise of personal jurisdiction even after the person had left the state. Shaffer
v. Heitner, 433 U.S. 186, 202 (1977). Similarly, registration of a corporation in the
forum state was one such way to attach personal jurisdiction. See Pennsylvania Fire,
243 U.S. at 95.
That framework was abandoned in International Shoe. See 326 U.S. at 316;
see also Shaffer, 433 U.S. at 202. Replacing that framework was the system of
“minimum contacts” and “notions of fair play and substantial justice” explained
above. Although the Supreme Court has never identified and specifically overruled
every old case that used the Pennoyer framework, International Shoe and Shaffer
make clear that the entire framework is no longer valid. See Shaffer, 433 U.S. at 212
n.39 (“To the extent that prior decisions are inconsistent with this standard [set in
International Shoe], they are overruled.”). Shaffer specifically held that some instate activity that qualified as a basis for personal jurisdiction under the old Pennoyer
framework will not qualify under the new International Shoe framework. See id. at
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216–17 (holding that the exercise of quasi in rem jurisdiction is not constitutional
unless the International Shoe test is satisfied).
It is for that reason that a majority of federal courts to consider the issue have
rejected Pennsylvania Fire or at least cast significant doubt on its continued
viability. See, e.g., Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 136 (4th Cir. 2020)
(“Given the number of states that subject foreign corporations to domestication
requirements, foreign corporations would likely be subject to general jurisdiction in
every state where they operate—a result directly at odds with the views expressed
by the Court in Daimler.”); Waite, 901 F.3d at 1318 (“After Daimler, there is ‘little
room’ to argue that compliance with a state’s ‘bureaucratic measures’ render a
corporation at home in a state.”); AM Tr. v. UBS AG, 681 F. App’x 587, 588 (9th
Cir. 2017) (citation omitted) (“[The plaintiff] advocates a rule that would subject a
large bank to general personal jurisdiction in any state in which the bank maintains
a branch. However, Daimler explained that ‘[a] corporation that operates in many
places can scarcely be deemed at home in all of them.’”); Brown v. Lockheed Martin
Corp., 814 F.3d 619, 640 (2d Cir. 2016) (“If mere registration and the accompanying
appointment of an in-state agent—without an express consent to general
jurisdiction—nonetheless sufficed to confer general jurisdiction by implicit consent,
every corporation would be subject to general jurisdiction in every state in which it

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registered, and Daimler’s ruling would be robbed of meaning by a back-door
thief.”).
Even beyond the inconsistency with International Shoe, Shaffer, and Daimler,
the Supreme Court has made clear in other areas that a state cannot require waiver
of a constitutional right as a prerequisite to doing business. See Koontz v. St. Johns
River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (explaining the unconstitutional
conditions doctrine); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571 (1949)
(“The State may arbitrarily exclude [foreign corporations] or may license them upon
any terms it sees fit, apart from exacting surrender of rights derived from the
Constitution of the United States.”). This doctrine of unconstitutional conditions
extends to rights secured by the Due Process Clause, including the right to be haled
into only those jurisdictions with which one has minimum contacts.
Pennsylvania Fire was overruled by International Shoe and Shaffer, along
with the entire system of territorial thinking represented by Pennoyer. Today, it is
clear that registration alone is not a valid method of establishing minimum contacts
and that a state cannot require consent to the general jurisdiction of the state as a
prerequisite to registration. Thus, even if consent could be implied under Alabama
law, that consent would not provide a basis for the constitutional exercise of personal
jurisdiction in this case.

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V. CONCLUSION
For the reasons stated above, it is ORDERED:
1.

Ford Motor Company’s Motion to Dismiss (Doc. # 12) is GRANTED;

2.

Plaintiff’s claims against Ford Motor Company are DISMISSED

without prejudice for lack of personal jurisdiction; and
3.

The Clerk of the Court is DIRECTED to terminate Ford Motor

Company from the docket sheet and to change the caption accordingly.
A final judgment will be entered separately. This case will remain open as
Plaintiff’s claims against Defendant Lane are still pending.
DONE this 17th day of November, 2021.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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