Lanham v. Pilot Travel Centers, LLC et al

Filing 27

OPINION & ORDER: Pilot's motion to dismiss 13 is granted. See 22-page opinion & order attached. Signed on 9/2/2015 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEFFREY D. LANHAM,
No. 03:14-cv-01923-HZ
Plaintiff,
v.

OPINION & ORDER

PILOT TRAVEL CENTERS, LLC,
a Delaware limited liability company,
and DOES 1 through 5, inclusive,
Defendants.

Laura L. Chock
LAURA CHOCK PC
1400 S.W. Montgomery St.
Portland, Oregon 97201
Attorney for Plaintiff
///
///
///

1 - OPINION & ORDER

Kyle D. Sciuchetti
Matthew C. Casey
BULLIVANT HOUSER BAILEY PC
300 Pioneer Tower
888 S.W. Fifth Avenue
Portland, OR 97204-2089
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Jeffrey Lanham brings this personal injury action against Defendant Pilot Travel
Centers, LLC, and Does 1 through 5. Defendant Pilot Travel Centers moves to dismiss Plaintiff's
claims for lack of personal jurisdiction. I grant the motion because I agree with Pilot that the
exercise of general jurisdiction over Pilot does not comport with due process and I reject
Plaintiff's argument that Pilot consented to jurisdiction in Oregon by complying with Oregon
statutes governing foreign business entities.
BACKGROUND
Pilot is a Delaware limited liability company operating approximately 550 interstate
travel centers across the United States and Canada. Nichols Apr. 23, 2015 Decl. at ¶ 5. On
November 8, 2012, Plaintiff, an Oregon resident and professional truck driver, sustained serious
injuries at one of Pilot's locations in Mountain Home, Idaho when he tripped over a chunk of
concrete and fell. Compl. at ¶¶ 6-7, 11. Plaintiff brings claims for premises liability and
negligence for the injuries he suffered in that fall. Compl. at ¶¶ 8-15.
Pilot's principal place of business is Knoxville, Tennessee. Nichols Apr. 23, 2015 Decl.
at ¶ 4. It is registered to do business in Oregon and has an agent for service of process in Oregon.
Id. Pilot owns real property and has ten travel centers located in Oregon. Id. at ¶ 5. As of May

2 - OPINION & ORDER

2015, Pilot employed 521 employees in Oregon. Nichols June 8, 2015 Decl. (Ex. 1 to June 29,
2015 Chock Decl.) at ¶ 5. It has no regional headquarters or operations center in Oregon. Pilot
has never earned more than 2% of its total revenue in Oregon. Nichols Apr. 23, 2015 Decl. at ¶
6. Pilot earned approximately 1.23% of its total revenue in Oregon in 2013, and 1.32% of its
total revenue in Oregon in 2014. Id. Its annual income from Oregon in 2014 was $423.7
million. Nichols June 8, 2015 Decl. at ¶ 4. Total company income for that year was $32.1
billion. Id. It pays all Oregon business-related taxes, including fuel taxes, employment taxes,
revenue taxes, and property taxes. Id. at ¶ 8.
STANDARDS
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move for dismissal on
the grounds that the court lacks personal jurisdiction. Plaintiff has the burden of showing
personal jurisdiction. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008).
If the district court decides the motion without an evidentiary hearing, which is
the case here, then the plaintiff need only make a prima facie showing of the
jurisdictional facts. Absent an evidentiary hearing this court only inquires into
whether the plaintiff's pleadings and affidavits make a prima facie showing of
personal jurisdiction. Uncontroverted allegations in the plaintiff's complaint must
be taken as true. Conflicts between the parties over statements contained in
affidavits must be resolved in the plaintiff's favor.
Id. (citations, internal quotation marks, and brackets omitted).
In diversity cases, the court looks to the law of the state in which it sits to determine
whether it has personal jurisdiction over the nonresident defendant. Western Helicopters, Inc. v.
Rogerson Aircraft Corp., 715 F. Supp. 1486, 1489 (D. Or. 1989); see also Boschetto, 539 F.3d at
1015 ("When no federal statute governs personal jurisdiction, the district court applies the law of
the forum state.").
3 - OPINION & ORDER

Oregon Rule of Civil Procedure (ORCP) 4 governs personal jurisdiction issues in
Oregon. Because Oregon's long-arm statute confers jurisdiction to the extent permitted by due
process, Ranza v. Nike, Inc., No. 13-35251, 2015 WL 4282986, at *4 (9th Cir. July 16, 2015)
(citing Or. R. Civ. P 4L), I may proceed directly to the federal due process analysis. See Harris
Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003)
(when state long arm statute reaches as far as the Due Process Clause, court need only analyze
whether the exercise of jurisdiction complies with due process); see also Millennium Enters., Inc.
v. Millennium Music, LP, 33 F. Supp. 2d 907, 909 (D. Or. 1999) (because Oregon's catch-all
jurisdictional rule confers personal jurisdiction coextensive with due process, the analysis
collapses into a single framework and the court proceeds under federal due process standards).
To comport with due process, the nonresident defendant must "'have certain minimum
contacts' with the forum state 'such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.'" Ranza, 2015 WL 4282986, at *4 (quoting Int'l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945)). "The strength of contacts required depends on
which of the two categories of personal jurisdiction a litigant invokes: specific jurisdiction or
general jurisdiction." Id.
DISCUSSION
I. General Jurisdiction - Minimum Contacts
Plaintiff concedes there is no specific jurisdiction. For a corporation, general jurisdiction
is fundamentally established by a defendant's principal place of business and place of
incorporation. Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). Here, Pilot's principal place
of business is in Tennessee and it was organized under Delaware law.
4 - OPINION & ORDER

When a corporation is neither incorporated in the forum nor has its principal place of
business in the forum, the court must examine the defendant's contacts with the forum to
determine if it has general jurisdiction. As the Ninth Circuit recently explained in Ranza:
Because the assertion of judicial authority over a defendant is much
broader in the case of general jurisdiction than specific jurisdiction, a plaintiff
invoking general jurisdiction must meet an "exacting standard" for the minimum
contacts required. CollegeSource [Inc. v. AcademyOne, Inc.], 653 F.3d [1066,]
1074 [(9th Cir. 2011)]. "[G]eneral jurisdiction requires affiliations so continuous
and systematic as to render the foreign corporation essentially at home in the
forum State, i.e., comparable to a domestic enterprise in that State." Daimler, 134
S. Ct. at 758 n.11 (citations, internal quotation marks and alterations omitted).
Such contacts must be "constant and pervasive." Id. at 751. The paradigmatic
locations where general jurisdiction is appropriate over a corporation are its place
of incorporation and its principal place of business. See id. at 760. "Only in an
'exceptional case' will general jurisdiction be available anywhere else." Martinez
[v. Aero Caribbean], 764 F.3d [1062,] 1070 [(9th Cir. 2014)] (citing Daimler, 134
S.Ct. at 761 n.19).
Ranza, 2015 WL 4282986, at *4; see also Martinez, 764 F.3d at 1070 (referring to the
"demanding nature of the standard for general personal jurisdiction over a corporation").
A corporation's "'continuous activity of some sort[]'" in the forum state is insufficient to
subject the corporation to general jurisdiction. Daimler, 134 S. Ct. at 757 (quoting Int'l Shoe,
325 U.S. at 318); see also Martinez, 764 F.3d at 1070 (noting that the "Court in Daimler rejected
the plaintiffs' argument . . . that general jurisdiction is appropriate whenever a corporation
engages in a substantial, continuous, and systematic course of business in a state) (internal
quotation marks omitted). Even "sizable sales" are insufficient to establish general jurisdiction.
See Daimler, 134 S. Ct. at 761-62 (determining California did not have general jurisdiction over
a foreign corporation that had California-based facilities, was the largest supplier of luxury
vehicles in California, and made over ten-percent of its new vehicle sales in the United States in

5 - OPINION & ORDER

California). Instead, general jurisdiction "calls for an appraisal of a corporation's activities in
their entirety, nationwide and worldwide." Id. at 762 n.20. "A corporation that operates in many
places can scarcely be deemed at home in all of them." Id. "Otherwise, 'at home' would simply
be synonymous with 'doing business' tests framed before specific jurisdiction evolved in the
United States." Id.
Pilot's activity in Oregon, although continuous, does not render it "essentially at home" in
Oregon. I agree with Pilot that its contacts with Oregon, which are fewer and less than Daimler's
contacts with California, do not give rise to general jurisdiction. In 2014, Oregon provided only
1.32% of Defendant's total revenue and Oregon has never contributed to more than 2% of its total
revenue. In Daimler, 2.4% of Daimler's worldwide sales in California were insufficient. Id. at
752.
Plaintiff notes there are some factual and procedural differences between Daimler and the
instant case. Most significantly, Daimler involved the contacts of the Defendant's subsidiary.
Pilot, in contrast, participates directly in the Oregon economy and has a physical presence in
Oregon. But, the Court in Daimler attributed the subsidiary's contacts to the defendant and still
concluded that the Ninth Circuit erred in determining that the defendant was at home in
California. Id. at 760 (even if the Court assumed subsidiary was "at home" in California and
further assumed subsidiary's contacts were imputable to defendant, no basis to subject defendant
to general jurisdiction in California), at 762 (error for Ninth Circuit to conclude defendant was at
home in California even when subsidiary's contacts attributed to defendant). Thus, this
distinction is not material. Plaintiff also stresses that Daimler concerned claims by foreign
plaintiffs against a foreign defendant for injuries and actions that occurred exclusively in
6 - OPINION & ORDER

Argentina. Here, although Plaintiff resides in Oregon, the claims are brought against a foreign
defendant for injuries that occurred exclusively in Idaho. This distinction is also not material.
See Brown v. CBS Corp., 19 F. Supp. 3d 390, 399 (D. Conn. 2014) (rejecting similar arguments
by a plaintiff attempting to distinguish Daimler).
Pilot cannot properly be deemed to be "at home" in Oregon when only ten out of its
approximately 550 travel centers in the United States and Canada are located in Oregon and
Oregon generates so little of its income. While Pilot has some presence in Oregon, if general
jurisdiction were premised on these limited "contacts," Pilot would be subject to the jurisdiction
of almost every state in which it conducts some business. Such "exorbitant exercises of
all-purpose jurisdiction" would stretch beyond the limits imposed by federal due process.
Daimler, 134 S. Ct. at 761-62.
II. Consent
As an alternative to the general jurisdiction "minimum contacts" argument, Plaintiff
argues that Oregon has personal jurisdiction over Pilot based on Pilot’s compliance with
Oregon's business regulation statutes. Plaintiff contends that Pilot consented to personal
jurisdiction in Oregon by registering to do business here and by designating an agent for service
of process. I reject Plaintiff's argument.
Oregon statutes governing foreign limited liability companies ("foreign LLCs") are found
at Oregon Revised Statutes §§ (O.R.S.) 63.701-63.747. Pilot does not dispute that it has
complied with the various requirements in these statutes.
Essentially, Plaintiff contends that compliance with business registration statutes is an
independent method of establishing personal jurisdiction, divorced from any analysis under the
7 - OPINION & ORDER

Due Process Clause. Pilot contends that consent is not a separate basis for personal jurisdiction,
and even if it is, it can no longer be recognized as such in the post-Daimler world.
The parties have identified no controlling post-Daimler Ninth Circuit cases on this issue.
The parties have cited no other post-Daimler federal appellate decisions on this issue and I have
found none. There are conflicting post-Daimler opinions from a few federal district courts.
In two Delaware cases and one New Jersey case, the courts found personal jurisdiction by
consent when the corporation complied with the state's business registration statute. Otsuka
Pharm. Co. v. Mylan, Inc., No. 14-4508 (JBS/KMW), 2015 WL 1305764, at **8-12 (D.N.J.
Mar. 23, 2015) (holding that some of the defendants consented to personal jurisdiction in New
Jersey by registering to do business there); Forest Labs, Inc. v. Amneal Pharm., LLC, No. 14508-LPS, 2015 WL 880599, at **4-10 (D. Del. Feb. 26, 2015) (Magistrate Judge Burke
concluding that compliance with state statute requiring appointment of agent for service of
process was consent to personal jurisdiction), adopted by J. Stark, 2015 WL 1467321 (D. Del.
Mar. 30, 2015); Acorda Therapeutics, Inc. v. Mylan Pharm., Inc., No. 14-935-LPS, 2015 WL
186833, at **7-14 (D. Del. Jan. 14, 2015) (District Judge Stark finding jurisdiction by consent
when corporation complied with Delaware's business registration statute).
A different judge in the District of Delaware came to the opposition conclusion.
AstraZeneca AB v. Mylan Pharm., LLC, 72 F. Supp. 3d 549, 555-56 (D. Del. Nov. 5, 2014)
(rejecting argument that Supreme Court cases holding that personal jurisdiction is satisfied
merely by complying with state business registration statutes remain viable and concluding that
Daimler “weigh[s] on the issue”; further noting that both consent and minimum contacts are
rooted in due process); see also Brown, 19 F. Supp. 3d at 394 (concluding that Connecticut
8 - OPINION & ORDER

business registration and agent designation statute could confer personal jurisdiction on a
registered foreign corporation for purposes of the state's long-arm statute, but due process
requirements must still be met; under Daimler, no personal jurisdiction over defendant).
Before Daimler, circuit courts were split as to whether compliance with business
registration or agent designation statutes subjected a defendant to personal jurisdiction. See
Forest Labs., 2015 WL 880599, at *9 (citing Third, Eighth, and First Circuits cases holding that
even after International Shoe, compliance with registration statutes could amount to valid consent
to personal jurisdiction; citing Eleventh, Seventh, and Fourth Circuit cases holding that
compliance with a state registration statute cannot be the basis for finding consent to general
jurisdiction); see also Otsuka Pharm., 2015 WL 1305764, at *10 (similarly citing Third, Eighth,
and First Circuit cases for the proposition that after International Shoe, "the majority of federal
Courts of Appeals to have considered the question have concluded that compliance with
registration statutes may constitute consent to personal jurisdiction").
The Ninth Circuit position is articulated in King v. American Family Mutual Insurance
Company, 632 F.3d 570, 576 (9th Cir. 2011). In King, the defendant out-of-state insurance
company appointed the state Commissioner of Insurance as its registered agent for service of
process as part of an application to conduct business in Montana. Id. at 572, 573. While the
insurance company contemplated doing business in Montana, it never completed the regulatory
process for doing so. Id. It also had no contacts or contracts, no sales agents or producers, no
employees, and no offices in Montana. Id. It was, as the court described, "99.99% Montana
free." Id. at 572. Plaintiffs, Colorado residents, were in a motorcycle accident in Montana. They
brought suit against their insurance company regarding an insurance policy issued by the
9 - OPINION & ORDER

defendant to the plaintiffs in Colorado. Id. at 572-73.
The district court dismissed the action for lack of personal jurisdiction. Id. at 572. The
Ninth Circuit began its analysis of whether the defendant's "appointment of an agent for service
of process is a sufficient hook for the exercise of personal jurisdiction" by reviewing "a line of
venerable Supreme Court cases." Id. at 573-76 (discussing Pa. Fire Ins. Co. of Phila. v. Gold
Issue Mining & Milling Co., 243 U.S. 93 (1917), Chipman, Ltd. v. Thomas B. Jeffrey Co., 251
U.S. 373 (1920), Robert Mitchell Furniture Co. v. Selden Breck Constr. Co., 257 U.S. 213
(1921), Louisville & Nashville R.R. Co. v. Chatters, 279 U.S. 320 (1929), and Perkins v.
Benguet Consol. Mining Co., 342 U.S. 437 (1952)).
In summarizing its discussion, the court stated that
Pennsylvania Fire, Chipman, and Robert Mitchell thus collectively stand
for the proposition that federal courts must, subject to federal constitutional
restraints, look to state statutes and case law in order to determine whether a
foreign corporation is subject to personal jurisdiction in a given case because the
corporation has appointed an agent for service of process.
Id. at 576; see also id. at 574 (stating that Pennsylvania Fire "holds that the appointment of an
agent for service of process will subject a foreign insurer to general personal jurisdiction if the
governing state statute so provides"); at 575 (stating that Robert Mitchell "confirms that federal
courts should look first and foremost to a state's construction of its own statute to determine
whether appointment of an agent for service of process is a sufficient basis for the exercise of
personal jurisdiction over a foreign corporation" and that Robert Mitchell "announces the default
rule, that in the absence of broader statutory language or state court interpretations, the
appointment of an agent for the service of process is, by itself, insufficient to subject foreign
corporations to suits for business transacted elsewhere.").
10 - OPINION & ORDER

Following this discussion, the court then analyzed the Montana statute. Id. at 577. The
plain language of the statute did not resolve the question of whether the appointment of the
Commissioner as the agent for service subjected the defendant to suit for business conducted
elsewhere. Id. Next, the court looked at the interpretation of the statute by Montana courts. Id.
at 577-78. Although the Supreme Court of Montana had not determined the effect of the
identical statute on personal jurisdiction over foreign defendants, the King court cited a 1933
Montana case which had addressed an earlier, similar statute which required foreign corporations
to "'maintain an agent within the state upon whom service of process may be made.'" Id. (quoting
Reed v. Woodmen of the World, 94 Mont. 374, 22 P.2d 819 (1933)). The King court understood
the Reed court to limit the jurisdictional reach of the agent-designation statute to foreign
companies that actually transacted business in Montana. Id. (relying on language in Reed
indicating that the object of "statutes of this nature" was to enforce "the contracts made here" by
foreign corporations through its agents).
Following King, district courts within the Ninth Circuit have cited the case for the
proposition that the court must look to state law to determine whether compliance with business
registration or agent designation statutes confer general personal jurisdiction over a nonresident
corporate defendant. E.g., Strickland v. BAE Sys. Tactical Vehicle Sys., LP, No. 4:13-cv-00148BLW, 2013 WL 2554671, at *4 (D. Id. June 10, 2013) (citing King for statement that "[w]hether
a foreign corporation subjects itself to the general jurisdiction of the courts within a state simply
by appointing a registered agent to accept service of process within that state is a question of
state law"); World Lebanese Cultural Union, Inc. v. World Lebanese Cultural Union of N.Y.,
Inc., No. C 11-01442 SBA, 2011 WL 5118525, at *4 (N.D. Cal. Oct. 28, 2011) (same); Corbo v.
11 - OPINION & ORDER

Laessig, No. 2:10-CV-0316-GMN-LRL, 2011 WL 1327680, at *5 (D. Nev. Apr. 6, 2011) (citing
King for proposition that court must look to Nevada Supreme Court cases interpreting the statute
to determine if compliance with the statute constitutes consent to general personal jurisdiction).
Based on King, it appears that the Ninth Circuit aligns itself with those circuits
concluding, albeit pre-Daimler, that consent may be a separate basis for asserting general
personal jurisdiction of a foreign defendant, independent of an International Shoe minimum
contacts due process analysis. If the Ninth Circuit outright rejected the notion that consent by
compliance with state business registration/agent designation statutes could subject a foreign
corporation to general personal jurisdiction, such as the Eleventh, Seventh, and Fourth Circuits
have held, the court would have likely proceeded directly to the minimum contacts analysis and
disposed of the personal jurisdiction issue on that basis. Even so, it is clear that in the Ninth
Circuit, the mere fact that a foreign defendant has complied with business registration or agent
designation statutes is insufficient for the exercise of general personal jurisdiction over that
defendant for actions taken outside the forum state unless the statutes themselves or the state
court's interpretation of those statutes provides for that exercise. Based on King, I turn to Oregon
law.
Plaintiff relies on five separate provisions of the statutes governing the authority of
foreign LLCs to transact business in Oregon. Under O.R.S. 63.701(1), a foreign LLC "may not
transact business in this state until it has been authorized to do so by the Secretary of State." A
separate statute instructs the foreign LLC as to the application required to transact business in
Oregon and provides that the application must include the name of the foreign LLC's "registered
agent at the registered office[.]" O.R.S. 63.707(1)(f). Under another provision, each LLC
12 - OPINION & ORDER

authorized to transact business in the state "must continuously maintain" in Oregon, a registered
office and a registered agent. O.R.S. 63.721(1), (2) (the registered agent may be an individual, a
domestic LLC, or a foreign LLC whose business office is identical to the registered office).
Under O.R.S. 63.704(1), a foreign LLC which transacts business in Oregon without
authorization from the Secretary of State may not maintain a proceeding in any court in this state
until it obtains such authorization. Finally, the statutes provide that the "registered agent
appointed by a foreign limited liability company authorized to transact business in this state shall
be its agent upon whom any process, notice or demand required or permitted by law to be served
upon the foreign limited liability company may be served." O.R.S. 63.731.
These statutes do not explicitly address personal jurisdiction. Thus, they are similar to
the Delaware statutes analyzed in Forest Laboratories. There, the business registration statute
provided that all process issued out of any Delaware court and all orders made by any Delaware
court may be on served the registered agent, designated in accordance with Delaware statute, of a
foreign corporation qualified to do business in Delaware. 2015 WL 880599, at *10 (discussing 7
Del. C. § 376). The statutes further provided that a foreign corporation must pay the Secretary of
State a fee and file with the Secretary a statement setting forth the name and address of its
registered agent in Delaware. Id. (discussing 8 Del. C. § 371). The Forest Laboratories court
concluded that neither of the statutes expressly set out the types of actions for which registration
of an agent for service of process shall be effective. Id.; see also id. at *9 n.11 (noting that the
Pennsylvania statute at issue in a Third Circuit case was "particularly explicit about the effect
that compliance would have on the question of personal jurisdiction" because it provided that the
corporation's qualification as a "foreign corporation under the laws of the State . . . shall
13 - OPINION & ORDER

constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to
exercise general personal jurisdiction over such person") (internal quotation marks and brackets
omitted).
Similarly, the statutes at issue in King also failed to expressly address jurisdiction. There,
the Montana statutes provided only that as part of the application for an insurance company to
conduct business in Montana, the company had to appoint the insurance commissioner as its
attorney to receive service of legal process issued against it in Montana. King, 632 F.3d at 577.
The company also had to file with the commissioner the name and address to which the
commissioner should forward any summons or complaint received against the insurer. Id. The
Ninth Circuit found that the plain language of the statutes did "not answer the question of
whether the appointment subjects [defendant] to suit in Montana for business conducted
elsewhere." Id. As in Forest Laboratories and King, because the Oregon statutes do not
expressly address personal jurisdiction, I must look to Oregon cases interpreting Oregon statutes
to determine the effect that compliance with those statutes has on general personal jurisdiction.
The parties cite no Oregon law interpreting the current statutes at issue, any current
analogous statutes, or any predecessor statutes. Pilot represents that the "consent-by-registration"
theory has not been adopted by the Oregon Supreme Court or the Oregon Court of Appeals but it
engages in no discussion of the issue. My research has turned up no cases directly on point. In
an 1897 case brought by an Oregon resident against a Kentucky corporation, the defendant
argued that service upon its president in Oregon was insufficient. The Oregon Supreme Court
considered a statute which provided, as characterized by the court, "that no foreign corporation
shall be subject to the jurisdiction of the courts of the state in personam unless it appear in the
14 - OPINION & ORDER

action or have an agency established here for the transaction of some portion of its business."
Farrel v. Or. Gold-Mining Co., 31 Or. 463, 466, 49 P. 876, 877 (1897) (citing Hill's Ann. Laws, §
516). The court explained that the statute was
only declaratory of the general rule that, in the absence of a voluntary appearance,
the courts of one state have no jurisdiction over a corporation created in another,
unless it is transacting some portion of its corporate business within the state
where sued. And as a corporation can act only through its agents, it necessarily
follows that if it is doing business in the state it must have an agency established
here, within the meaning of the statute. In no other way can it do business, and
hence the statute simply means that, in the absence of a voluntary appearance, no
foreign corporation shall be subject to the jurisdiction of the courts of this state
unless it is engaged in the transaction of some portion of its corporate business at
the time the action is commenced[.]
Id. at 466-67, 49 P. at 877.
The court stated that a state may impose, as a condition upon which the foreign
corporation shall do business within the state, that the corporation accept as sufficient whatever
service of process upon the corporation's officers or agents as may be prescribed. Id. at 468, 49
P. at 877. Because that condition of service may be implied or express, the court explained that
[w]hen therefore, a state provides by general law that process may be served upon
a private corporation by serving the same upon certain officers or agents thereof,
and a foreign corporation subsequently comes into the state to do business, it will
be deemed to have consented to subject itself to the jurisdiction of the local courts
by the service of process upon the officers or agents designated in the local
statute.
Id. at 468, 49 P. at 878; see also id. at 467-68, 49 P. at 877 ("when a corporation migrates into
another state, and engages in business there, it becomes, in effect, for jurisdictional purposes, a
domestic corporation, and liable to suit upon a cause of action arising in the state of its adoption
by service of process in the manner provided for the service of domestic corporations, unless the
statute otherwise provides.").
15 - OPINION & ORDER

Notably, Farrel, while indicating that a foreign corporation consents to the jurisdiction of
Oregon courts when it does business here, concerned a claim involving conduct that occurred in
Oregon. It does not stand for the proposition that Oregon's business registration statutes imply
consent by a foreign corporation to the jurisdiction of Oregon courts for conduct occurring
outside of Oregon. Furthermore, the focus is on the transaction of business in Oregon. It is by
the transaction of business in the state, not the designation of an agent, that the foreign
corporation subjects itself to jurisdiction, and thus service of process, in Oregon. Given the
repeated references to the foreign corporation "coming" into the state to do business, Farrel
foreshadows today's minimum contacts personal jurisdiction jurisprudence. It does not suggest
that a foreign corporation's compliance with statutes requiring registration to do business in
Oregon or the appointment of an agent in Oregon for service of process in Oregon is implied
consent to jurisdiction in Oregon for conduct completely unrelated to Oregon.
A later Oregon Supreme Court case underscores that it is the transaction of business in
the state that creates the consent to jurisdiction, regardless of whether the cause of action arises in
or out of Oregon, and not the mere compliance with business registration or agent designation
statutes. In Enco, Inc. v. F.C. Russell Co., 210 Or. 324, 311 P.2d 737 (1957), the defendant, an
Ohio corporation with its principal place of business in Ohio, argued that it was not subject to
jurisdiction in Oregon because it was not doing business in the state. In discussing the meaning
of doing business in a state, the court noted that "[w]hether a corporation is 'doing business' in a
state foreign to its birth involves, in the final analysis, a question of due process under the
Constitution of the United States." Id. at 333, 311 P.2d at 741-42.
The court discussed some of its earlier cases on the issue of implied consent for
16 - OPINION & ORDER

jurisdiction. It noted that it had "adopted the implied consent theory for sustaining the
jurisdiction of its state courts over suits brought therein against foreign corporations." Id., 311
P.2d at 742. It explained that the implied consent theory "was based upon the fiction that a
foreign corporation doing business in a state foreign to its birth consented to be found in that
state." Id. The court stated that its prior cases held that a foreign corporation doing business in
Oregon is deemed a resident of Oregon such that it is amenable to service of process of the
Oregon courts. Id. at 334, 311 P.2d at 743 (citing Farrel, 31 Or. at 467, 468, and Aldrich v.
Anchor Coal & Dev. Co., 24 Or. 32, 35, 32 P. 756 (1893)). Quoting a 1917 case, the court made
clear that "'these authorities [referring to Farrel and Aldrich] go no further than to hold that a
corporation by transacting business in Oregon consents to be found therein for purpose of service
of summons upon it.'" Id. (quoting Hamilton v. N. Pac. S.S. Co., 84 Or. 71, 77, 164 P. 579, 581
(1917)).
Although the defendant company in Enco had not complied with business-related statutes
in Oregon and thus, the court there was not deciding the question of whether such compliance
subjected the company to jurisdiction in Oregon, the court's discussion of its previous cases is
useful. As the court makes clear, its earlier cases of Aldrich, Farrel, and Hamilton hold that a
foreign corporation impliedly consents to jurisdiction in Oregon by virtue of conducting business
in Oregon, not because it appoints an agent for service of process or registers the business with
the Secretary of State. When this is understood, the analysis is best understood as indistinct from
the minimum contacts analysis established by International Shoe.
In another case, the Oregon Supreme Court considered a statute which required out-ofstate insurance companies to, effectively, appoint a person in the state as attorney-in-fact and
17 - OPINION & ORDER

which then "'authorize[d] and empower[ed] such attorney to receive and accept service of all
writs, processes and summons requisite or necessary to give complete jurisdiction of any such
company or association to any of the courts of this state or the United States courts therein. . . .'"
State ex rel. Kahn v. Tazwell, 125 Or. 528, 533, 266 P. 238, 240 (1928) (quoting Or. L. § 6327, §
3a, c. 203), overruled on different grounds, Reeves v. Chem. Indus. Co., 262 Or. 95, 495 P.2d
729 (1972). The court was not deciding the precise issue presented here. Instead, it was asked to
address the relationship of the statute to the statute's title which the defendant argued limited the
statute's application to causes of action arising within Oregon. Id. at 532, 266 P. at 240.
The court agreed with the plaintiff and held that the title did not limit the statute's reach,
id. at 533-36, 266 P. at 240-41, and further, that "[w]here a foreign corporation is doing business
in the state sufficient to render it subject to the jurisdiction of the courts of the state generally,
jurisdiction of a particular suit does not fail because the cause of action sued on has no relation in
its origin to such business." Id. at 541, 266 P. at 243. Thus, the fact that the claim against the
insurance company defendant did not arise in Oregon was not a barrier to suit in Oregon when
the defendant otherwise conducted business in Oregon1 and was subject to a statute which
expressly provided for jurisdiction over the defendant.
A case from this Court addressed a statute containing language almost identical to the
statutory language examined in Tazwell. Traveler's Ins. Co. v. Cimarron Ins. Co., 196 F. Supp.
681 (D. Or. 1961). In Traveler's, the defendant argued that a service of process statute was
limited to cases involving surplus line insurance. In pertinent part, the statute provided that

1

According to a later Oregon case, the insurance company in Tazwell was conducting
business in Oregon. State ex rel. Knapp v. Sloper, 256 Or. 299, 304, 473 P.2d 140 (1970).
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before registering and delivering the insurance policy, the surplus line agent had to procure from
the insurance company "'a power of attorney which empowers him as its attorney in fact to
receive and accept on its behalf service of any and all writs, processes and summonses requisite
or necessary to give complete jurisdiction of any such company or insurer to any courts of this
state or of the United States in this state.'" Id. at 683 (quoting then O.R.S. 750.050(2)).
The court described the statutory language as "very broad and comprehensive." Id. It
explained that "[o]bviously, the intention of the legislature was to require each surplus line
insurance company to submit to the jurisdiction of the courts in Oregon on all types of actions
and suits which might be instituted against it, whether by reason of the issuance of a policy or
otherwise." Id. The court stated that a state, "as a condition to doing business within its
boundaries, may by statute require a foreign corporation to submit to the jurisdiction of its court
and the federal courts located therein and such legislation does not violate due process." Id.
(citing Perkins, 324 U.S. 437). The court held that the "only rational construction" of the
statutory language was that "it requires an insurance company doing business in Oregon to
submit to the jurisdiction of the local and federal courts for all purposes." Id. at 684.
As mentioned above, Oregon cases do not address the statutes at issue here. And, Oregon
cases have not held in regard to analogous or predecessor statutes that compliance with such
statutes implies consent to general personal jurisdiction by a foreign defendant concerning an
action arising outside of Oregon. The cases indicate that Oregon has focused on the foreign
corporation's conduct of business in the state as an implied consent to jurisdiction. They also
show that the Oregon Legislature can explicitly address jurisdiction in its statutes if it desires to
do so. Given the lack of such language in the statutes at issue here, cases interpreting statutes
19 - OPINION & ORDER

which expressly addresses jurisdiction are distinguishable.
Assuming that the Ninth Circuit in King recognizes that consent to general personal
jurisdiction may be obtained (completely independent of the minimum contacts due process
analysis), by complying with a state's business registration and agent designation statutes, the
statutes at issue in this case do not provide a sufficient basis for jurisdiction over Pilot.
Additionally, as in King, to "the extent that [the relevant state cases are] not dispositive, the
default rule in Robert Mitchell applies - 'we should not construe the state statute to extend to
suits in respect of business transacted by the foreign corporation outside [the state].'" King, 632
F.3d at 577 (quoting Robert Mitchell, 257 U.S. at 216) (brackets omitted). Thus, because
King instructs that consent by compliance with business regulation statutes is an issue of state
law, and nothing in Oregon law supports a conclusion that compliance with these statutes confers
general personal jurisdiction over a nonresident defendant for conduct occurring outside Oregon,
I reject Plaintiff's argument.
Finally, Plaintiff seizes on a particular passage from King to argue that Pilot's transaction
of business in Oregon combined with its compliance with statutes governing foreign LLC
conduct in Oregon, is sufficient for the exercise of jurisdiction over Pilot in Oregon. Pl.'s Mem.
at 13 (arguing that "given Pilot's extensive business affiliations with the State of Oregon coupled
with its long-standing compliance with Oregon's business registration statutes, Pilot has waived
its right to object to jurisdiction"). I disagree.
In King, the court concluded its discussion of Montana law by stating that "Montana law
regarding appointment of an agent for service of process does not, standing alone, subject foreign
corporations to jurisdiction in Montana, at least when the corporations transact no business in the
20 - OPINION & ORDER

state." King, 632 F.3d at 578 (emphasis added); see also id. at 575 (noting that Robert Mitchell
"announces the default rule that in the absence of broader statutory language or state court
interpretations, the appointment of an agent for the service of process is, by itself, insufficient to
subject foreign corporations to suits for business transacted elsewhere.") (emphasis added).
Plaintiff suggests that as an alternative to general jurisdiction under Daimler's strict
standards, a foreign defendant which transacts business in the state consents to jurisdiction by
complying with state business statutes. In other words, even if compliance alone were
insufficient, the language in King indicates, according to Plaintiff, that compliance plus
transacting business in the state will support the exercise of general jurisdiction over a foreign
defendant.
As I read King, however, the references to "standing alone" and "by itself" are meant to
convey only that compliance with business registration statutes does not alone or itself confer
personal jurisdiction absent language in the statutes themselves, or a state court's interpretation of
those statutes, establishing that the statutes provide for the exercise of jurisdiction. As explained
above, Oregon statutes do not contain such language and have not been interpreted as such by the
Oregon Supreme Court. King does not, in my opinion, suggest that the transaction of business
by the foreign defendant is a component of the "consent by compliance" analysis. Given that
Pilot's contacts do not establish general jurisdiction under the currently controlling analysis set
forth in Daimler, they are not properly used to augment Plaintiff's consent-to-jurisdiction
argument.
In the end, given my conclusion, I need not address Pilot's argument that consent to
jurisdiction, as an independent basis of personal jurisdiction, does not survive Daimler. In this
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case, even if it does exist independently, the requirements for consent by compliance are not met
under Ninth Circuit and Oregon law.
CONCLUSION
Pilot's motion to dismiss [13] is granted.
IT IS SO ORDERED.

Dated this

day of

Marco A. Hernandez
United States District Judge

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, 2015