Barrett v. Union Pacific Railroad Co. , 361 Or. 115 ( 2017 )

No. 11 March 2, 2017 115
IN THE SUPREME COURT OF THE
STATE OF OREGON
Christopher S. BARRETT,
Plaintiff-Adverse Party,
v.
UNION PACIFIC RAILROAD COMPANY,
Defendant-Relator.
(CC 15CV27317; SC S063914)
En Banc
Original proceeding in mandamus.*
Argued and submitted November 10, 2016.
Wendy M. Margolis, Cosgrave Vergeer Kester LLP,
Portland, argued the cause and filed the briefs for relator.
Also on the brief was Julie A. Smith.
Douglas A. Rossi, Rossi Vucinovich PC, Seattle, argued
the cause for adverse party. James K. Vucinovich filed
the brief for adverse party. Also on the brief was Paul S.
Bovarnick, Rose Senders & Bovarnick LLC, Portland.
Lisa T. Hunt, Law Office of Lisa T. Hunt, Lake Oswego,
filed the brief for amicus curiae Oregon Trial Lawyers
Association.
Lawrence M. Mann, Alper & Mann, PC, Bethesda,
Maryland, filed the brief for amicus curiae Academy of Rail
Labor Attorneys.
KISTLER, J.
Peremptory writ to issue.
Walters, J., dissented and filed an opinion, in which
Brewer, J., joined.
______________
* On petition for writ of mandamus from an order of Multnomah County
Circuit Court, Kenneth R. Walker, Judge.
116 Barrett v. Union Pacific Railroad Co.
Case Summary: Plaintiff brought an action in Oregon against a foreign
corporation to recover for injuries that he sustained in Idaho. The corporation
moved to dismiss because Oregon lacks general jurisdiction over it. The trial
court denied the motion, and the Supreme Court issued a peremptory writ of
mandamus to the trial court. Held: (1) Under Daimler AG v. Bauman, 571 US
___, 134 S Ct 746, 187 L Ed 2d 624 (2014), a state ordinarily can exercise general
jurisdiction in one of two places: where the corporation is incorporated and where
it maintains its principal place of business; (2) this case does not come within
the limited exception recognized in Daimler to that rule: Oregon cannot be con-
sidered a surrogate for the corporation’s state of incorporation or principal place
of business; and (3) the Federal Employee Liability Act does not bring this case
within the exception that Daimler recognized.
Peremptory writ to issue.
Cite as 361 Or 115 (2017) 117
KISTLER, J.
The primary question in this case is whether the
Due Process Clause of the Fourteenth Amendment permits
Oregon to exercise general jurisdiction over an interstate
railroad for claims unrelated to the railroad’s activities in
this state. The trial court ruled that it could exercise gen-
eral jurisdiction over the railroad and denied the railroad’s
motion to dismiss plaintiff’s negligence action for lack of per-
sonal jurisdiction. After the railroad petitioned for a writ of
mandamus, we issued an alternative writ to the trial court,
which adhered to its initial ruling. The case accordingly
came to us for briefing and argument. We now hold that due
process does not permit Oregon courts to exercise general
jurisdiction over the railroad.
Plaintiff sustained injuries while working for Union
Pacific Railroad Company “as a spiker machine operator
near Minidoka, Idaho.”1 According to plaintiff’s complaint,
the machine that he used to set spikes was in a “state of
disrepair,” which subjected him to “excessive vibration and
jarring.” Additionally, Union Pacific’s decision to reduce
“the spiker machine’s customary three-[person] crew to a
two-[person] crew” placed greater physical demands on
plaintiff, causing or contributing to the injuries he suffered.
As a result of Union Pacific’s alleged negligent maintenance
of the spiker machine and its decision to reduce the num-
ber of persons operating that machine, plaintiff suffered
economic and noneconomic damages totaling approximately
$615,000.
Union Pacific is a Delaware corporation with its
principal place of business in Omaha, Nebraska.2 It currently
1
This mandamus proceeding arises out of plaintiff’s negligence action
against Union Pacific. We take the facts from the record that was developed in
the underlying action on Union Pacific’s motion to dismiss for lack of personal
jurisdiction. See Willemsen v. Invacare Corp., 352 Or 191, 195 n 2, 282 P3d 867
(2012) (explaining that the record on a motion to dismiss for lack of personal
jurisdiction includes the complaint, affidavits, and other evidence that the par-
ties submitted on the motion). We assume, for the purposes of this proceeding,
that the facts alleged in plaintiff’s complaint are true and construe any disputed
facts consistently with the trial court’s ruling. See id.2
Union Pacific’s corporate offices are located in Omaha, as are its “rail traffic
control headquarters.”
118 Barrett v. Union Pacific Railroad Co.
operates railroads in 23 states, including Oregon. It has
been engaged in business in Oregon on an ongoing basis
for a substantial period of time; one of its now-merged sub-
sidiaries first began operating in Oregon in 1863.3 Oregon
also forms a significant part of Union Pacific’s business.
The company owns approximately 32,000 miles of track in
23 states, with approximately 3.4 percent of those tracks in
Oregon. In terms of the amount of track that Union Pacific
owns, Oregon is thirteenth among the 23 states. Oregon
is ninth in terms of employees and fourteenth among the
23 states in revenues generated.
Plaintiff brought this action in Oregon to recover
for injuries that he sustained in Idaho. In response to Union
Pacific’s motion to dismiss for lack of personal jurisdiction,
plaintiff raised essentially two arguments. First, he argued
that Oregon has general jurisdiction over Union Pacific
under the Federal Employees Liability Act (FELA), 35 Stat
65, as amended, codified as 45 USC sections 51-60. Second,
he argued that, apart from FELA, Oregon has general juris-
diction over Union Pacific because Union Pacific’s actions in
Oregon were “so substantial and of such a nature as to jus-
tify suit against [Union Pacific] on causes of actions aris-
ing from dealings entirely distinct from those activities.”
(Quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 US 915, 924, 131 S Ct 2846, 180 L Ed 2d 796 (2011).) On
review, plaintiff adds a third argument. He contends that
Oregon has specific jurisdiction over Union Pacific in this
case. We begin with plaintiff’s second argument.4
3
The Oregon Steam Navigation Co. began in 1863 as a portage railroad
to carry steamship travelers around rapids and falls on the Columbia River. It
merged with Oregon Railway & Navigation Co. (OR&N), which became part of a
railroad system that Union Pacific leased and that connected to a Union Pacific
subsidiary, Oregon Short Line (OSL). Although OR&N and OSL operated as sep-
arate corporate entities well into the twentieth century, they merged with Union
Pacific in 1987.
4
Ordinarily, we would begin with the federal statutory issue that plain-
tiff raises before reaching any constitutional limitation on exercising jurisdic-
tion over Union Pacific. However, plaintiff has not explained how Congress can
authorize states to exercise jurisdiction that due process forbids. Moreover, as
explained below, the section of FELA on which plaintiff relies does not purport to
confer authority on state or federal courts to exercise personal jurisdiction over
out-of-state corporate defendants. We accordingly begin with plaintiff’s constitu-
tional claim and then turn to his reliance on the federal statute.
Cite as 361 Or 115 (2017) 119
I.  GENERAL JURISDICTION
ORCP 4 L authorizes Oregon courts to exercise per-
sonal jurisdiction over out-of-state defendants to the extent
permitted by the state and federal constitutions. Union
Pacific identifies no state constitutional limit on the trial
court’s authority to hear plaintiff’s claims, and the question
accordingly becomes whether due process permits Oregon to
exercise general jurisdiction over Union Pacific. In answer-
ing that question, we focus initially on the Court’s discus-
sion of general jurisdiction in Daimler AG v. Bauman, 571
US ___, 134 S Ct 746, 187 L Ed 2d 624 (2014).
The Court held in Daimler that California courts
could not exercise general jurisdiction over Daimler AG,
a German public stock company, to hear claims that were
unrelated to that state.5 134 S Ct at 762. We discuss
Daimler in greater detail below. Essentially, however, the
Court explained that a corporation will be “at home” in a
state and thus subject to general jurisdiction in two par-
adigmatic places: the corporation’s place of incorporation
and its principal place of business. Id. at 760. Although the
Court did not foreclose the possibility that a corporation
could be “at home” in other places, it identified a limited set
of “exceptional” circumstances that will provide compara-
ble contacts. Id. at 761 n 19. In doing so, the Court rejected
the argument that plaintiff raises here—that a substantial
and continuous business presence within a state is, in and
of itself, sufficient to give rise to general jurisdiction over an
out-of-state corporate defendant. Id. at 761-62.
In reaching those conclusions, the Court began by
tracing the development of specific and general jurisdiction.
The Court explained that both doctrines find their roots in
International Shoe Co. v. Washington, 326 US 310, 66 S Ct
154, 90 L Ed 95 (1945). The plaintiff’s claim in International
Shoe arose out of the defendant’s contacts with the forum
5
In Daimler, employees of Daimler’s Argentinean subsidiary sued Daimler
in federal district court in California, claiming that Daimler’s Argentinean sub-
sidiary had conspired with the security police in that country to kidnap, torture,
and kill the subsidiary’s employees. Because the plaintiffs’ claims had no con-
nection to California, the plaintiffs had to establish that Daimler’s presence in
California was sufficient to give that state general jurisdiction over it.
120 Barrett v. Union Pacific Railroad Co.
state, and the question in that case was whether those
in-state contacts were sufficient to give the forum state per-
sonal jurisdiction over the defendant. That type of personal
jurisdiction, now called specific jurisdiction, turns on “ ‘the
relationship among the defendant, the forum, and the litiga-
tion.’ ” Daimler, 134 S Ct at 754 (quoting Shaffer v. Heitner,
433 US 186, 204, 97 S Ct 2569, 53 L Ed 2d 683 (1977)). That
is, specific jurisdiction “depends on an affiliatio[n] between
the forum and the underlying controversy, principally, activ-
ity or an occurrence that takes place in the forum State and
is therefore subject to the State’s regulation.” Goodyear, 564
US at 919 (alteration in original; internal quotation marks
omitted).
International Shoe also recognized a related but
separate category of personal jurisdiction, which has been
labeled general jurisdiction. More specifically, International
Shoe recognized that a foreign corporation’s “continuous
corporate operations within a state [may be] so substantial
and of such a nature as to justify suit against it on causes
of action arising from dealings entirely distinct from those
activities.” 326 US at 318. The Court did not have occasion
in International Shoe to determine how substantial an out-
of-state corporation’s activities within the forum state must
be before the forum could exercise general jurisdiction over
the corporation. International Shoe, as well as most of the
Court’s subsequent personal jurisdiction cases, have focused
instead on specific jurisdiction.
After International Shoe and before Daimler, only
three of the Court’s cases had considered when a foreign
corporation’s contacts with a forum will be sufficient to per-
mit the forum state to exercise general jurisdiction over it.
One case held that a Philippine mining company that tem-
porarily had relocated to Ohio during the Second World War
was subject to general jurisdiction in Ohio. See Daimler, 134
S Ct at 756 (describing Perkins v. Benguet Mining Co., 342
US 437, 72 S Ct 413, 96 L Ed 485 (1952)). As the Court
explained in Daimler, “[g]iven the wartime circumstances,
Ohio could be considered a surrogate for the [mining com-
pany’s] place of incorporation or head office.” Id. at 756 n 8
(internal quotation marks omitted); see also Goodyear, 564
Cite as 361 Or 115 (2017) 121
US at 928 (describing Perkins the same way).6 Each of the
other two cases concluded that the out-of-state defendant’s
occasional contacts with the forum state were insufficient
to give that state general jurisdiction. Goodyear, 564 US at
929;7 Helicopteros Nacionales de Colombia v. Hall, 466 US
408, 104 S Ct 1868, 80 L Ed 2d 404 (1984).8
The Court’s decision in Goodyear has proved nota-
ble not so much for its holding but for its explanation of when
a corporation’s activities within a forum state will be suffi-
cient to give rise to general jurisdiction. The Court explained
in Goodyear that “[a] court may assert general jurisdiction
over foreign (sister-state or foreign-country) corporations
to hear any and all claims against them when their affili-
ations with the State are so ‘continuous and systematic’ as
to render them essentially at home in the forum State.” 564
US at 919. The Court did not define with any specificity in
Goodyear when a foreign corporation will be “essentially at
home” in the forum state; the contacts in that case were so
few that further definition was unnecessary.9 Rather, the
task of defining when a foreign corporation will be “essen-
tially at home” fell to Daimler.
6
In Daimler, Justice Sotomayor read Perkins for the proposition that the
displaced company had a substantial presence in Ohio but also maintained
extensive operations elsewhere. 134 S Ct at 769-70 n 8 (opinion concurring in
the judgment). She accordingly disagreed that Ohio was a surrogate for the
company’s head office. Id. Whatever the merits of that reading of Perkins, the
Court’s interpretation of Perkins in Goodyear and Daimler controls our view of
that case.
7
In Goodyear, the Court held that the North Carolina courts lacked gen-
eral jurisdiction over the European subsidiaries of a United States parent to
hear claims against those subsidiaries arising out of an accident in France. The
subsidiaries had no presence in North Carolina, and the tires that they manu-
factured were sold primarily in European and Asian markets. 564 US at 920-
21. Only a small percentage of the subsidiaries’ tires were distributed in North
Carolina by other Goodyear affiliates. Id.8
In Helicopteros, the Court held that Texas lacked general jurisdiction over a
Colombian corporation when the corporation’s contacts with Texas were confined
to “sending its chief executive officer to Houston for a contract-negotiation ses-
sion; accepting into its New York bank account checks drawn on a Houston bank;
purchasing helicopters, equipment, and training services from [a Texas-based
helicopter company] for substantial sums; and sending personnel to [Texas] for
training.” Helicopteros, 466 US at 416.
9
In Goodyear, the Court explained that a corporation would be “at home” in
a state if the corporation were comparable to a domestic enterprise in that state,
but it did not provide further guidance. See 564 US at 924.
122 Barrett v. Union Pacific Railroad Co.
On that issue, there was no dispute in Daimler that
the German corporation’s own activities in California were
insufficient to permit that state to exercise general juris-
diction over it. Rather, the plaintiffs’ theory (and the Ninth
Circuit’s holding) turned on the proposition that Mercedes
Benz USA (MBUSA), Daimler’s United States subsidiary,
was Daimler’s agent, that MBUSA’s in-state activities were
attributable to Daimler, and that MBUSA was subject to
general jurisdiction in California—a proposition that was
undisputed in that case.
In considering that theory, the Court questioned
whether, even if MBUSA were Daimler’s agent, its activ-
ities were attributable to Daimler. Id. at 759 (holding out
the possibility that MBUSA’s activities in California would
be attributable to Daimler only if MBUSA were Daimler’s
alter ego). In a similar vein, the Court questioned whether
an agent’s contacts with the forum would be attributable to
the principal for the purpose of establishing general juris-
diction even though those contacts would be attributable to
the principal for the purpose of establishing specific juris-
diction. Id. Finally, the Court questioned whether California
could exercise general jurisdiction over MBUSA. See id. at
758.
The Court concluded, however, that “[e]ven if we
were to assume that MBUSA is at home in California,
and further to assume MBUSA’s contacts are imputable to
Daimler, there would still be no basis to subject Daimler to
general jurisdiction in California, for Daimler’s slim con-
tacts with the state hardly render it at home there.” Id. at
760. In reaching that conclusion, the Court identified two
paradigmatic places where a corporation will be “at home”:
“the place of incorporation and principal place of business.”
Id. The Court did not “foreclose the possibility that in an
exceptional case, see, e.g., Perkins,” a corporation could be
at home in some place other than its place of incorporation
and its principal place of business. Id. at 761 n 19. However,
the Court rejected the plaintiffs’ argument that a corpo-
ration will be at home “in every State in which a corpora-
tion engages in a substantial, continuous, and systematic
course of business”—an argument that the Court described
Cite as 361 Or 115 (2017) 123
as “unacceptably grasping.” Id. at 761 (internal quotation
marks omitted).10
The Court explained why MBUSA’s activities in
California—even if they were imputed to Daimler and even
if they were sufficient to give rise to general jurisdiction over
MBUSA—were not sufficient to establish general jurisdic-
tion over Daimler:
“[T]he general jurisdiction inquiry does not ‘focu[s] solely
on the magnitude of the defendant’s in-state contacts.’
* * * General jurisdiction instead calls for an appraisal of
a corporation’s activities in their entirety, nationwide and
worldwide. A corporation that operates in many places can
scarcely be deemed at home in all of them. Otherwise, ‘at
home’ would be synonymous with ‘doing business’ tests
framed before specific jurisdiction evolved in the United
States. * * * Nothing in International Shoe and its prog-
eny suggests that ‘a particular quantum of local activity’
should give a State authority over a ‘far larger quantum of
. . . activity’ having no connection to any in-state activity.”
Id. at 762 n 20 (citation omitted; bracket in original). The
Court reasoned that, if MBUSA’s California activities gave
that state general jurisdiction over Daimler, then every
other state in which MBUSA’s sales were sizeable could also
assert general jurisdiction over Daimler—a result that the
Court rejected as an “exorbitant exercis[e] of all purpose
jurisdiction.” Id. at 761.
Given Daimler, we conclude that Oregon may not
exercise general jurisdiction over Union Pacific. There is no
dispute that Union Pacific has engaged in a “substantial,
continuous, and systematic course of business” in Oregon.
However, Union Pacific’s activities in Oregon, while sub-
stantial, are only a small part of its larger business activ-
ities in 23 states. To paraphrase the Court’s reasoning in
Daimler, if Oregon can exercise general jurisdiction over
Union Pacific because that company’s activities in this state
10
The Court recognized that a corporation’s “continuous and systematic”
activities in the forum state will give rise to specific jurisdiction when they “also
give rise to the liabilities sued on.” 134 S Ct at 761 (quoting International Shoe,
326 US at 317). However, as noted, it rejected the plaintiff’s argument that sys-
tematic and continuous activities in the forum state were sufficient to give rise to
general jurisdiction in every state in which those activities occurred.
124 Barrett v. Union Pacific Railroad Co.
are substantial and continuous, then every state in which
Union Pacific has engaged in similar activities can assert
general jurisdiction over it, and the Court was clear that a
rule of decision that results in multiple jurisdictions simul-
taneously asserting general jurisdiction over an out-of-state
defendant is at odds with the Due Process Clause.11
Plaintiff, however, advances three interrelated rea-
sons why Daimler does not foreclose Oregon from exercising
general jurisdiction over Union Pacific. He contends initially
that the touchstone of International Shoe is “fairness” and
that there is nothing unfair in subjecting Union Pacific to
general jurisdiction in a state, such as Oregon, where it has
a substantial and continuous business presence. Second,
and perhaps in support of the first point, plaintiff notes
that Union Pacific employs 1,700 persons in Oregon, has
an annual Oregon payroll of $144.6 million, owns and oper-
ates almost 1,100 miles of track throughout the state, and
generates over $645 million annually in revenue from its
Oregon operations. Finally, plaintiff notes that this case is
factually distinguishable from Daimler. It does not require
attributing the activities of an in-state agent to a foreign
corporation to hear a claim that arose in another country,
as in Daimler. Rather, this case focuses on Union Pacific’s
activities in Oregon to determine whether that company is
subject to general jurisdiction in this state for an injury that
resulted from Union Pacific’s alleged negligence in a neigh-
boring state.
While we appreciate the distinctions that plain-
tiff identifies, we are not persuaded that Daimler can be
distinguished so easily. We agree with plaintiff that, in
11
The Court identified primarily two reasons why “only a limited set of affili-
ations with a forum will render a defendant amenable to all-purpose jurisdiction.”
Daimler, 134 S Ct at 760. First, the Court explained that, following International
Shoe, specific jurisdiction has become (and should be) the predominant means
by which a state may assert jurisdiction over an out-of-state defendant. General
jurisdiction should play only a subsidiary role. Id. at 757-58 and n 9. Second, the
rules for determining general jurisdiction should provide clear guides to out-of-
state defendants, thus “permit[ting] out-of-state defendants to structure their
primary conduct with some minimum assurance as to where that conduct will
and will not render them liable to suit.” Id. at 761-62 (internal quotation marks
omitted). The rules that the Court announced for determining general jurisdic-
tion further those goals.
Cite as 361 Or 115 (2017) 125
International Shoe, the Court invoked fair play as a touch-
stone of due process. However, since that time, the Court
has refined and clarified the rules that guide our determina-
tion of when due process permits states to exercise general
jurisdiction over out-of-state defendants. We cannot rely on
the general invocation of fair play in International Shoe to
undo the more specific rules for determining general juris-
diction that the Court announced in Daimler.12
Plaintiff’s related point—that Union Pacific is
engaged in substantial and continuous business activi-
ties in Oregon—does not provide a viable basis for distin-
guishing Daimler. In Daimler, the Court explicitly assumed
that MBUSA’s activities in California could be imputed to
Daimler. Those activities included “the presence of multi-
ple offices, the direct distribution of thousands of prod-
ucts accounting for billions of dollars in sales, and contin-
uous interaction with customers” in California. Id. at 764
(Sotomayor, J., concurring in the judgment). As the Court
explained, however, in response to the concurring opinion,
“the general jurisdiction inquiry does not focu[s] solely on the
magnitude of the defendant’s in-state contacts. * * * General
jurisdiction instead calls for an appraisal of a corporation’s
activities in their entirety.” Id. at 762 n 20. Similarly, in this
case, while Union Pacific’s activities in Oregon are substan-
tial, they form only a small part of its activities in the 23
states in which it operates. Viewed through the lens that
Daimler provided, those contacts are not sufficient to confer
general jurisdiction over Union Pacific. If they were, most (if
not all) of the states in which Union Pacific operates could
exercise general jurisdiction over it. However, as the Court
explained, due process does not permit such an “exorbitant
exercise” of general jurisdiction.
Finally, plaintiff argues that this case is factu-
ally distinguishable from both Daimler and Goodyear.
To be sure, there are differences between the two cases.
Daimler involved an international corporation, whose ties to
12
Plaintiff has not explained why he could not have brought an action in
Idaho where the injury occurred or why it would be unfair, as International Shoe
used that concept, to limit personal jurisdiction over Union Pacific to the state
in which it allegedly caused the injury and those states in which Union Pacific is
incorporated and maintains its principal place of business.
126 Barrett v. Union Pacific Railroad Co.
California depended on attributing its subsidiary’s in-state
activities to it. Moreover, the plaintiffs’ claims in Daimler
arose outside of the United States while plaintiff’s claims
in this case arose in a neighboring state. Perhaps the Court
could have relied on those facts in holding that California
lacked general jurisdiction over Daimler. It did not do so,
however. Rather, the Court expressly assumed that MBUSA’s
activities in California were attributable to Daimler but
found MBUSA’s activities in California insufficient in the
context of Daimler’s larger operations. Nor does the interna-
tional character of the issues in Daimler provide a basis for
distinguishing that decision. The Court expressly declined
to adopt the rationale advanced by Justice Sotomayor’s opin-
ion concurring in the judgment, which turned on the lack of
a connection between California and a claim by Argentinean
plaintiffs against a German corporation. Id. at 762 n 20.13
However narrowly the Court might have written Daimler,
we are not persuaded that the decision, as written, can be
fairly distinguished.
II.  SECTION 56 OF FELA
Plaintiff also relies on section 56 of FELA. Congress
enacted FELA in 1908 to provide a federal cause of action for
injured railroad workers. 35 Stat 65.14 As initially enacted,
FELA left venue to the general federal venue statute, which
“fixed the venue of suits in the United States courts, based
in whole or in part * * * in districts of which the defendant
was an inhabitant.” Baltimore & Ohio R. Co. v. Kepner, 314
US 44, 49, 62 S Ct 6, 86 L Ed 28 (1941). It quickly became
apparent, however, that it was an “injustice to an injured
employee” to permit the employee to bring an action only in
the district where the defendant railroad was an inhabitant.
13
At the end of its opinion, after the majority had concluded that the Ninth
Circuit erred in holding that California courts could exercise general jurisdiction
over Daimler, the majority noted that the “transnational context of this dispute
bears attention,” but that context merely confirmed the Court’s holding. 134 S
Ct at 762. It did not control it. Had it done so, the Court would have agreed with
Justice Sotomayor’s opinion concurring in the judgment.
14
As enacted in 1908, FELA focused on substantive issues, such as the stan-
dard of care and who can recover in the event of the employee’s death; it made
railroads liable for their negligence, eliminated the defenses of contributory neg-
ligence and assumption of risk, and replaced those defenses with comparative
fault. 35 Stat 65-66.
Cite as 361 Or 115 (2017) 127
Id. Accordingly, in 1910, Congress added what is now codi-
fied as section 56 of FELA. That section provided and still
provides:
“Under this chapter an action may be brought in a
[District Court of the United States], in the district of the
residence of the defendant, or in which the cause of action
arose, or in which the defendant shall be doing business at
the time of commencing such action. The jurisdiction of the
courts of the United States under this chapter shall be con-
current with that of the courts of the several States, and no
case arising under this Act and brought in any state court
of competent jurisdiction shall be removed to any court of
the United States.”
36 Stat 291; see 45 USC § 56.
Relying on Kepner and Miles v. Illinois Central R.
Co., 315 US 698, 62 S Ct 827, 86 L Ed 1129 (1942), plaintiff
argues that the Supreme Court “has consistently upheld
the jurisdiction of courts in FELA cases even though those
[cases were brought] in states different from the location
of an injury, or the headquarters or place of incorporation
of the defendant railroad.” In plaintiff’s view, the Court
has “consistently done so because of the ‘exceptional’
nature of interstate railroads,” a proposition that plaintiff
sees as bringing FELA cases within the class of “excep-
tional” cases that, under footnote 19 in Daimler, will give
rise to general jurisdiction in a forum other than a corpo-
rate defendant’s place of incorporation and primary place
of business.
The difficulty with plaintiff’s argument is that sec-
tion 56 of FELA addresses venue and subject matter jurisdic-
tion. It does not address personal jurisdiction. As explained
below, the FELA cases on which plaintiff relies apparently
assumed (no defendant raised the issue in those cases) that
personal jurisdiction over the railroads existed because the
railroads were “doing business” in the jurisdiction in which
they were sued. That basis for asserting personal jurisdic-
tion over out-of-state corporate defendants predated Kepner
and Miles, was not unique to railroads but applied to all out-
of-state corporate defendants, and did not survive Daimler.
With that preface, we turn to the terms of section 56.
128 Barrett v. Union Pacific Railroad Co.
Section 56 consists of two sentences. The first sen-
tence is a venue provision that defines the venues in which
FELA claims may be brought in federal district courts. See
Kepner, 314 US at 50-51 (describing that sentence as confer-
ring venue); Sen R 432 (1910), printed in 45 Cong Rec 4040,
4041 (stating that the first sentence in the 1910 amendment
pertains to “the venue of such an action”). That sentence pro-
vides that claims under FELA can be brought in the federal
district courts in three places: the district where the defen-
dant resides, the district where the cause of action arose, or
the district where the defendant was doing business when
the action was commenced. Kepner, 314 US at 50. As the
Court recognized in Kepner, the first sentence of section 56
does not confer personal jurisdiction over out-of-state cor-
porate defendants but instead provides for expanded venue
“ ‘if there is jurisdiction.’ ” Id. at 51 (quoting Hoffman v.
Foraker, 274 US 21, 23, 47 S Ct 485, 71 L Ed 905 (1927));
accord Missouri ex rel Southern Railway Co. v. Mayfield, 340
US 1, 3, 71 S Ct 1, 95 L Ed 3 (1950) (noting personal jurisdic-
tion as a prerequisite to the application of section 56).
Plaintiff fares no better under the second sentence
in section 56. That sentence confirms that state courts have
concurrent subject matter jurisdiction over federal FELA
claims. Second Employers’ Liability Cases, 223 US 1, 56,
32 S Ct 169, 56 L Ed 327 (1912). The Court explained in
Second Employers’ Liability Cases that, when Congress
enacted FELA in 1908, the general jurisdictional provision
giving state courts concurrent subject matter jurisdiction
over federal claims was sufficient, without more, to estab-
lish the state courts’ jurisdiction over those claims. Id. The
second sentence of section 56 was added to emphasize the
existence of concurrent subject matter jurisdiction but did
not itself confer it. Id. That sentence was intended to con-
firm the authority (and duty) of state courts to hear federal
FELA claims “when [the state court’s] ordinary jurisdiction
as prescribed by its local laws is appropriate to the occasion
and is invoked in conformity with those laws, to take cogni-
zance of an action to enforce a right of civil recovery.” Id. at
56-57; accord Testa v. Katt, 330 US 386, 394, 67 S Ct 810, 91
L Ed 967 (1947) (holding that state courts generally may not
refuse enforcement of federal claims if state courts would
Cite as 361 Or 115 (2017) 129
enforce the same type of state-law claims).15 Confirming
the state courts’ concurrent subject matter jurisdiction over
federal claims is not the same thing as conferring personal
jurisdiction over out-of-state corporate defendants.
Nothing in section 56 purports to confer personal
jurisdiction over out-of-state corporate defendants on state
or federal courts. It is true, as plaintiff argues, that in Kepner
the Court upheld the ability of an Ohio plaintiff injured in
that state to bring a FELA claim in a New York federal dis-
trict court when the basis for filing an action in that forum
was that the defendant railroad was doing business there.
314 US at 48. The only issue, however, raised in Kepner was
whether the broad venue provision in the first sentence of
section 56 precluded the railroad from asserting a forum
non conveniens defense. Id. at 51. The railroad did not argue
and the Court did not address whether a New York court
could assert personal jurisdiction over a nonresident corpo-
ration for injuries that occurred in another state. A similar
pattern occurred in Miles, on which plaintiff also relies.
Plainitff concludes from Kepner and Miles that sec-
tion 56 of FELA gave the courts in those cases personal
jurisdiction over the out-of-state corporate defendants. Not
only is that conclusion difficult to draw from the Court’s fail-
ure to address personal jurisdiction in those cases, but it
is also at odds with the history that preceded those cases.
Cf. New York Trust Co. v. Eisner, 256 US 345, 349, 41 S Ct
506, 65 L Ed 963 (1921) (noting that “a page of history is
worth a volume of logic”). As early as 1882, the Court held
that a state could assert personal jurisdiction over an out-of-
state corporate defendant if the corporation was “doing busi-
ness” in the state through its agent and the state served the
corporate defendant’s agent. St. Clair v. Cox, 106 US 350,
355-56, 1 S Ct 354, 27 L Ed 222 (1882). The Court reached
15
In explaining the 1910 amendment, Senator Borah stated that, in his
view, the sentence was not necessary because the general jurisdictional provision
applied. 45 Cong Rec 4034-35 (remarks of Sen Borah). He noted, however, that
the Supreme Court of Connecticut “ha[d] refused to take jurisdiction of this class
of [FELA] cases, holding that it was the evident intent of Congress to confine this
class of cases to the jurisdiction of the federal court.” Id. at 4035. The second sen-
tence was added to make clear that state courts have concurrent subject matter
jurisdiction to hear FELA cases. Id.
130 Barrett v. Union Pacific Railroad Co.
a similar conclusion in International Harvester v. Kentucky,
234 US 579, 34 S Ct 944, 58 L Ed 1479 (1914), even though
the corporate defendant in that case had structured its busi-
ness practices to avoid complying with a state law requiring
that an agent be appointed for service of process.16
In Davis v. Farmers Co-Operative Co., 262 US
312, 316, 43 S Ct 556, 67 L Ed 996 (1923), the Court cited
International Harvester for the proposition that the forum
state had personal jurisdiction over the defendant railroad
because it was doing business there.17 In light of Davis,
International Harvester, and St. Clair, it should come as no
surprise that the defendant railroads in Kepner and Miles
did not question whether the forum had personal jurisdic-
tion over them. In both cases, those railroads were doing
business in the states in which the FELA actions were
brought. Rather, the only question that the defendant rail-
roads raised was whether venue could be transferred to a
more convenient forum.18
16
There are two related but separate types of “doing business” cases. One
arose as a result of state statutes that required out-of-state corporations doing
business within a state to appoint a registered agent for the service of process.
St. Clair, 106 US at 355-56. Although the Court initially stated that personal
jurisdiction was limited to the corporation’s in-state activities, it later recognized
that such statutes could provide for general jurisdiction. See Pennsylvania Fire
Ins. Co. v. Gold Issue Mining Co., 243 US 93, 95-96, 37 S Ct 344, 61 L Ed 610(1917). The other class of cases arose in the absence of such statutes and rec-
ognized that a forum state could assert personal jurisdiction over corporations
doing business within the state as long as a corporate agent was served with
process in the state. See International Harvester, 234 US at 585-86 (discussing
amount of business activity within a state necessary under the Due Process
Clause to justify personal jurisdiction). In this case, plaintiff relies on the latter
line of cases, not the former.
17
Because the courts in which railroads were “doing business” had personal
jurisdiction over them, the issue in FELA cases shifted from personal jurisdic-
tion under the Due Process Clause to whether asserting a FELA claim in an
unrelated jurisdiction placed an undue burden on interstate commerce in viola-
tion of the Commerce Clause. See Davis, 262 US at 317. Davis held that it did. Id.After a series of cases that initially followed but later limited Davis, the Court
finally confined Davis to its “particular facts” in Kepner. See Kepner, 314 US at 51
n 11.
18
Plaintiff also relies on a statement that Senator Borah made in introduc-
ing the 1910 amendment. After explaining that the first sentence of the amend-
ment “has reference to the venue” of a FELA action, he added that the amendment
“enables the plaintiff to find the corporation at any point or place or State where
it is actually carrying on business, and there lodge his action, if he chooses to do
so.” 45 Cong Rec 4034 (1910). Plaintiff’s reliance on that statement is misplaced
for three reasons. First, Senator Borah specifically focused on venue, not personal
Cite as 361 Or 115 (2017) 131
The most that plaintiff can extract from Kepner and
Miles is that the parties in those cases implicitly assumed
that the forum states had jurisdiction because the rail-
roads were “doing business” there. And the parties’ implicit
assumptions will advance plaintiff’s jurisdictional argu-
ments only if “doing business” in a forum is enough, with-
out more, to assert general jurisdiction over an out-of-state
corporate defendant. As Daimler makes clear, however, it
is not. As explained above, the Court held in Daimler that
the fact that an out-of-state corporation “engages in a sub-
stantial, continuous, and systematic course of business” in a
state is not sufficient, in and of itself, to give that state gen-
eral jurisdiction over the corporation. Daimler also rejected
the proposition that “at home,” as it used that phrase, is
“synonymous with ‘doing business’ tests framed before spe-
cific jurisdiction evolved in the United States.” 134 S Ct at762 n 20. And the Daimler Court observed that, although
Perkins had relied on two cases upholding “the exercise of
general jurisdiction based on the presence of a local office,
which signaled that the corporation was ‘doing business’ in
the forum,” those “doing business” cases “should not attract
heavy reliance today.” Id. at 761 n 18.
As we read Daimler, it concluded that the recogni-
tion of specific jurisdiction in International Shoe foreclosed
reliance on older cases finding general jurisdiction based
solely on “doing business” within a forum.19 We cannot follow
jurisdiction. Second, the “doing business” cases provided for personal jurisdiction
“where [the railroad was] actually carrying on business.” Id. Put differently, per-
sonal jurisdiction where the railroad was actually carrying on business was a prem-
ise not a consequence of the amendment. Third, even if Congress intended to confer
personal jurisdiction on state courts where it would not otherwise exist, plaintiff
never explains how Congress can do so in violation of the Due Process Clause.
19
As noted, plaintiff does not argue that Oregon courts can assert personal
jurisdiction over Union Pacific based on Oregon’s statute requiring out-of-state
corporations doing business within this state to appoint agents for service of pro-
cess. See ORS 60.731. We accordingly do not decide in this case whether Oregon’s
statute purports to confer personal jurisdiction over out-of-state defendants;
whether, if it does, it purports to confer jurisdiction only over claims that arise
out of a corporation’s activities within this state; or whether, if it purports to
confer general jurisdiction, Oregon could do so consistently with the federal con-
stitution. It is sufficient in this case to hold that the quantum of business activ-
ity necessary to constitute “doing business” under cases such as International
Harvester is no longer sufficient, in and of itself, to confer general jurisdiction
under Daimler.
132 Barrett v. Union Pacific Railroad Co.
the Court’s decision in Daimler and give continued effect to
the “doing business” cases that plaintiff implicitly urges us
to follow, nor can we find in the terms of FELA, the cases
interpreting it, or the history that preceded it a basis for
saying that cases brought against railroads under that stat-
ute constitute an “exceptional” case that, like Perkins, will
permit a court to exercise general jurisdiction over a corpo-
rate defendant in a forum other than its state of incorpo-
ration or principal place of business. We accordingly reach
a different conclusion from the Montana Supreme Court,
which relied on earlier “doing business” cases in upholding
general jurisdiction over a railroad. See Tyrrell v. BNSF
Railway Co., 373 P3d 1 (Mont 2016), cert granted, ___ US
___ (2017). We agree instead with the majority of courts
that have held that the fact that a corporation is doing busi-
ness within a state is not sufficient in and of itself to give
that state general jurisdiction over the corporation. See, e.g.,
Brown v. Lockheed Martin Corp., 814 F3d 619 (2d Cir 2016);
Kipp v. Ski Enterprise Corp., 783 F3d 695, 698-99 (7th Cir
2015); Martinez v. Aero Caribbean, 764 F3d 1062, 1070 (9th
Cir 2014).
III.  SPECIFIC JURISDICTION
Plaintiff argues that we can affirm the trial court’s
ruling on an alternative ground—that the relationship
among Union Pacific, the forum, and this litigation are suf-
ficient to give Oregon specific jurisdiction over Union Pacific.
See Outdoor Media Dimensions Inc. v. State of Oregon, 331
Or 634, 659-60, 20 P3d 180 (2001) (explaining when an
appellate court can affirm the lower court’s ruling under
the “right for the wrong reason” doctrine).20 Plaintiff did not
raise this issue below, and, as he notes, “the factual record
20
In Outdoor Media Dimensions, the court explained that an appellate court
can affirm a lower court’s ruling on a different ground when “certain conditions
are met.” Among other things,
“if the question presented is not purely one of law, then the evidentiary record
must be sufficient to support the proffered alternative basis for affirmance.
That requires: (1) that the facts of record be sufficient to support the alter-
native basis for affirmance; (2) that the trial court’s ruling be consistent
with the view of the evidence under the alternative basis for affirmance; and
(3) that the record materially be the same one that would have been developed
had the prevailing party raised the alternative basis for affirmance below.”
331 Or at 659-60.
Cite as 361 Or 115 (2017) 133
in regard to specific jurisdiction is not fully developed.” We
agree. The only Oregon-specific fact before the trial court on
Union Pacific’s motion to dismiss was plaintiff’s residence.
The complaint alleged that, at all material times, plain-
tiff “was a resident of the City of Albany, State of Oregon.”
Plaintiff does not identify any other evidence in the record
that would provide a basis for finding specific jurisdiction
over his claim against Union Pacific, nor are we aware of
any. Without more, we cannot say that the trial court had
specific jurisdiction over Union Pacific.21 See Robinson v.
Harley-Davidson Motor Co., 354 Or 572, 574, 316 P3d 287
(2013) (holding that Oregon courts could not exercise spe-
cific jurisdiction over a claim brought by an Oregon resident
for injuries sustained elsewhere because “this litigation did
not arise out of or relate to [the] defendant’s activities in
Oregon”).
Peremptory writ to issue.
WALTERS, J., dissenting.
Oregon should have authority to adjudicate a FELA
claim brought by one of its residents against a railroad that
has laid tracks and conducted its unique interstate railway
business here for over one hundred years. For the reasons
that follow, I would hold that this is one of the “exceptional”
cases to which the court referred in Daimler AG v. Bauman,
571 US __, 134 S Ct 746, 187 L Ed 2d 624 (2014), and that
defendant is “at home” in Oregon and is subject to its gen-
eral jurisdiction.
In Daimler, the United States Supreme Court
explained that a corporation will be “at home” in two par-
adigmatic places: the corporation’s place of incorporation
and its principal place of business. Barrett v. Union Pacific
Railroad Co., 361 Or 115, 122, __ P3d __ (2017); Daimler,
134 S Ct at 760. However, the Court did not “foreclose the
possibility that[,] in an exceptional case,” a corporation’s
operations in another forum could be “so substantial and of
such a nature as to render the corporation at home in that
21
We express no opinion on whether plaintiff’s failure to develop the issue of
specific jurisdiction in the trial court forecloses him from doing so when this case
goes back to the trial court. The parties have not briefed that procedural issue in
this court, and we leave that issue initially to the trial court.
134 Barrett v. Union Pacific Railroad Co.
State.” Daimler, 134 S Ct at 761 n 19 (emphasis added). This
is one of those exceptional cases.
To understand why, it is important to understand
the historical bases for state court jurisdiction over rail-
roads and the Court’s reasons for circumscribing general
jurisdiction in Daimler.
Before 1977, corporations, including railroads, were
subject to in rem jurisdiction, meaning that they could be
sued in states in which they owned real property, to the
extent of that property. Under that form of jurisdiction, a
corporation could be sued in a forum state in which a defen-
dant owned property for wrongful acts that occurred outside
the forum state. Thus, in Pennoyer v. Neff, 95 US 714, 723-
24, 24 L Ed 565 (1877), the Supreme Court explained why
the defendant’s ownership of property in Oregon provided a
sufficient basis for Oregon to exercise judicial power over the
defendant:
“So the State, through its tribunals, may subject property
situated within its limits owned by non-residents to the
payment of the demand of its own citizens against them;
and the exercise of this jurisdiction in no respect infringes
upon the sovereignty of the State where the owners are
domiciled. Every State owes protection to its own citizens;
and, when non-residents deal with them, it is a legitimate
and just exercise of authority to hold and appropriate any
property owned by such non-residents to satisfy the claims
of its citizens. It is in virtue of the State’s jurisdiction over
the property of the non-resident situated within its limits
that its tribunals can inquire into that non-resident’s obli-
gations to its own citizens, and the inquiry can then be car-
ried only to the extent necessary to control the disposition
of the property. If the non-resident[s] have no property in
the State, there is nothing upon which the tribunals can
adjudicate.”
At the time of Pennoyer, it was the forum state’s relation-
ship to the defendant and the defendant’s property, and not
the nature of the plaintiff’s claims, that determined juris-
diction. Thus, what later was referred to as “general juris-
diction” was the basis on which all jurisdiction was justified.
Mary Twitchell, The Myth of General Jurisdiction, 101 Harv
L Rev 610, 614-15 (1988).
Cite as 361 Or 115 (2017) 135
That understanding of jurisdiction was the prevail-
ing understanding when Congress enacted FELA in 1908
to provide a federal cause of action for injured workers. 361
Or at 126 (discussing legislative history of FELA). In 1910,
Congress amended FELA to add what is now codified as sec-
tion 56, which provides, in part:
“Under this chapter an action may be brought in a district
court of the United States, in the district of the residence
of the defendant, or in which the cause of action arose, or
in which the defendant shall be doing business at the time
of commencing such action. The jurisdiction of the courts of
the United States under this chapter shall be concurrent
with that of the courts of the several States.”
45 USC § 56 (1908).
Senator William Borah of Idaho, who delivered
Senate Report Number 432, H.R. 17263, 61st Congress,
Second Session, 45th Congressional Record 4034 (1910),
explained the intent of that amendment as “enabl[ing] the
[p]laintiff to find a corporation at any point or place or state
where it is actually carrying on business and there lodge
his action if he chooses to do so.” Senator Borah stated
that, in his view, the second sentence of that provision was
not necessary because the general jurisdictional provi-
sions applied. 45 Cong Rec 4034-35. From the text of that
provision and Senator Borah’s statement, it appears that
Congress intended to grant FELA plaintiffs the right to sue
for injury in any state in which a railroad does business
and to grant state courts personal jurisdiction over such
railroads.
The majority understands the intent of Congress
more narrowly. It reads FELA as giving state courts concur-
rent subject matter jurisdiction to hear FELA claims and as
specifying the venues in which such claims may be heard. I
am not sure that that is correct. As explained, at the time
that FELA was enacted, state courts had unquestioned
jurisdiction to adjudicate state law personal injury claims
and to impose liability against railroads that owned and
operated facilities within their states. In enacting FELA,
Congress may well have intended to grant state courts the
same jurisdictional reach when adjudicating FELA claims.
136 Barrett v. Union Pacific Railroad Co.
But, even if the majority is correct and FELA does not grant
personal jurisdiction, it at least assumes it. Venue cannot lie
where jurisdiction does not exist, and FELA reflects a con-
gressional assumption that state courts will have personal
jurisdiction over railroads that own and operate facilities in
their states.
Two United States Supreme Court cases that the
majority discusses also reflect that assumption. In Miles v.
Illinois Central R. Co., 315 US 698, 62 S Ct 827, 86 L Ed
1129 (1942), and Baltimore & Ohio R. Co. v. Kepner, 314 US
44, 49, 62 S Ct 6, 86 L Ed 28 (1941), the plaintiffs did not
bring actions in the states where they resided and where
the railroads that injured them owned tracks. Instead, the
plaintiffs brought actions in other, distant states, and the
defendant railroads argued that requiring them to defend
there placed a burden on interstate commerce and resulted
in inequity, vexatiousness, and harassment. Miles, 315 US
at 700; Kepner, 314 US at 47. In both cases, the Court held
against the carriers and refused to enjoin the distant actions
to proceed. Miles, 315 US at 705; Kepner, 314 US at 54. In
doing so, the Court assumed, rather than decided, that the
distant courts had jurisdiction over the railroads because
the railroads were doing business there. But an even more
basic assumption, shared by all the parties, was that the one
undisputed place that the plaintiffs surely could bring their
claims was in the states in which they resided and in which
the railroads owned tracks. See Morris v. Missouri Pac. R.
Co., 107 Neb 788, 187 NW 130 (1922) (plaintiff resident of
forum state brought claim against defendant railroad in
state where railroad owned tracks but that was not its place
of incorporation or principal place of business); Hoogbruin v.
Atchison, T. & S. F. Ry. Co., 213 Cal 582, 2 P2d 992 (1931)
(same).
It was not until 1977, when the Court decided
Shaffer v. Heitner, 433 US 186, 97 S Ct 2569, 53 L Ed 2d 683(1977), that principles of Due Process limited the exercise
of in rem jurisdiction based on a defendant’s ownership of
property within a state. In Shaffer, the Court held that the
Due Process Clause precludes the exercise of state author-
ity in the absence of the minimum contacts required by
Cite as 361 Or 115 (2017) 137
International Shoe Co. v. Washington, 326 US 310, 66 S Ct
154, 90 L Ed 95 (1945). Shaffer, 433 US at 207.1
In 2011, the Court placed additional limits on a
state’s exercise of general jurisdiction when it held that state
authority does not extend to actions against foreign corpo-
rations unless their affiliations with a forum state are “so
continuous and systematic as to render them essentially at
home in the forum state.” Goodyear Dunlop Tire Operations,
S.A. v. Brown, 564 US 915, 131 S Ct 2846, 2853, 180 L Ed
2d 796 (2011). And, in 2014, in Daimler, the Court concluded
that the defendant’s affiliations with California did not
meet that test: California did not have general jurisdiction
in a case arising from the torture and killing of workers
in Argentina brought against a German corporation whose
only connection with California was that its wholly-owned
foreign subsidiary regularly sold cars there. 134 S Ct at 751.
Thus, from 1877, when Pennoyer was decided, until
at least 2014, when Daimler was decided, state courts had
undisputed jurisdiction to protect their residents from inju-
ries inflicted by railroads that owned tracks and conducted
substantial business within their borders. The facts in
Daimler do not compel a different result here; the question
is whether the Court’s reasoning necessarily does so.
In Daimler, the Court gave four reasons for hold-
ing that California did not have jurisdiction over the defen-
dant corporation. First, the Court reviewed its decision in
Goodyear and affirmed that it had “declined to stretch gen-
eral jurisdiction beyond limits traditionally recognized.” Id.
at 757-58. Second, the Court described the paradigm fora
for the exercise of general jurisdiction over a corporation
as the corporation’s place of incorporation and principal
place of business. Id. at 760. The Court observed that those
places have the twin virtues of being unique and easily
ascertainable. Id. Third, the Court rejected as “unaccept-
ably grasping” the plaintiffs’ suggestion that a corporation
is at home in every state in which it “engages in substantial,
1
Applying those principles in Shaffer, the Court concluded that jurisdiction
could not be premised on the defendants’ stock ownership in the forum state;
defendants’ stock ownership did not constitute sufficient minimum contacts. 433
US at 216.
138 Barrett v. Union Pacific Railroad Co.
continuous, and systematic course of business.” Id. at 761.
The Court explained that “[i]f Daimler’s California activi-
ties sufficed to allow adjudication of this Argentina-rooted
case in California, the same global reach would presumably
be available in every other State in which [it’s subsidiary’s]
sales are sizeable.” Id. That, the Court reasoned, would
“scarcely permit out-of-state defendants ‘to structure their
primary conduct with some minimum assurance as to where
that conduct will and will not render them liable to suit.’ ”
Id. at 762 (quoting Burger King Corp. v. Rudzewicz, 471 US
462, 472, 105 S Ct 2174, 85 L Ed 2d 528 (1985)). Fourth, the
Court noted that a more expansive view of general jurisdic-
tion would pose risks to international comity; other nations
do not share the “uninhibited approach to personal jurisdic-
tion” that the plaintiffs’ view represented. Id. at 763.
None of those reasons raise concerns about Oregon’s
assertion of authority here. First, permitting Oregon to
exercise authority to decide this case does not “stretch gen-
eral jurisdiction beyond limits traditionally recognized.”
Id. at 757-58. Rather, it gives effect to state jurisdictional
reach that has long been assumed and exercised. It is true
that, in Daimler, the Court cautioned that its decisions from
the era of “Pennoyer’s territorial thinking,” basing jurisdic-
tion only on the presence of local offices in the forum state,
“should not attract heavy reliance today.” Id. at 761 n 18.
However, although the Court cautioned against heavy reli-
ance on those cases, it did not jettison them entirely. I cite
Pennoyer and its description of the reasons for recognizing
state authority not as determinative, but as demonstrative:
It would be far more novel to preclude Oregon from exercis-
ing jurisdiction in this case than it would be to permit it.
Second, recognizing general jurisdiction in states in
which interstate railroads lay tracks may be fairer to those
railroads and more easily ascertainable than recognizing
general jurisdiction in states in which railroads are incor-
porated or have their principal place of business would be.
Here, for example, defendant is far more “at home” in the
23 states in which it owns tracks and conducts business than
it is in Delaware, the state in which it is incorporated, but in
which it does not own tracks or conduct any business. And
it may be easier to ascertain the states in which a railroad
Cite as 361 Or 115 (2017) 139
lays tracks than to ascertain the one state that constitutes
its “principal place of business.” Here, for example, defen-
dant takes the position that its principal place of business
is in Nebraska, but it owns more tracks and employs more
people in Texas. In Daimler, the Supreme Court cited Hertz
Corp. v. Friend, 559 US 77, 92-93, 130 S Ct 1181, 175 L Ed
2d 1029 (2010), as providing a predictable rule for determin-
ing the “principal place of business” of a defendant. Daimler,
134 S Ct at 760. But that rule, used for determining diver-
sity, requires consideration of “where a corporation’s officers
direct, control, and coordinate the corporation’s activities.”
Hertz Corp., 559 US at 92-93. For an interstate railroad,
that factual inquiry could prove more complex than a deter-
mination of the states in which the railroad has laid down
tracks.
Third, permitting Oregon to exercise its sovereign
authority here would not require application of the test that
the Court rejected in Daimler as “unacceptably grasping,”
134 S Ct at 761, nor would it offend “traditional notions of
fair play and substantial justice,” International Shoe, 326
US at 316 (internal quotation marks omitted) (explaining
application of Due Process Clause). I do not advocate for
jurisdiction in Oregon because, as the plaintiffs argued
in Daimler, defendant railroad “engages in substantial,
continuous, and systematic course of business” here. 134
S Ct at 761. Although it is true that, in Oregon, defen-
dant railroad employs 1,619 employees with an annual
payroll of $244.6 million; recently generated in excess of
$645 million in annual revenue; made capital expenditures
in excess of $81 million; and made purchases in excess of
$116 million, it is not the size of defendant’s Oregon oper-
ations on which I rely. I rely, instead, on Oregon’s right to
protect one of its residents from harm done by a corpora-
tion with a permanent, physical presence here, that is, by
its nature, unique.
Traversing this state with permanent tracks, defen-
dant railroad is “at home” here in ways that other businesses
are not. Defendant railroad owns and operates almost 1,100
miles of track in Oregon. It operates switching yards and
locomotive facilities in Portland; operates a classification
yard in Hinkle; and considers La Grande an important
140 Barrett v. Union Pacific Railroad Co.
operation and crew change point. By its very nature, a rail-
road requires such an extensive, physical presence.
What is more, an interstate railroad requires an
extensive, physical presence in more than one state. The
purpose of such a railroad is not to do business in one state or
primarily in one state; its purpose is to connect the business
interests in a number of states, and it is physically struc-
tured to do so. When an interstate railroad lays its tracks
in and between states, it moves into each of those states in
an obvious, physical way, and is as much “at home” in each
one of those states as it is in any other. That does not mean,
however, that interstate railroads are not able “ ‘to structure
their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to
suit.’ ” Id. at 762 (quoting Burger King Corp., 471 US at 472).
Interstate railroads move into states with careful delibera-
tion and with a great deal of governmental oversight.
Congress regulates interstate railroads at the fed-
eral level and preempts state regulation of the construction,
operation, and abandonment of rail lines. See 49 USCA
§ 10101-11908 (1995); Emerson v. Kansas City Southern Ry.
Co., 503 F3d 1126 (2007). And when railroad workers are
injured, Congress provides them with a federal cause of
action that is uniformly applied throughout the nation. 45
USC § 56 (1908); see Dice v. Akron, C. & Y. R. Co., 342 US
359, 361, 72 S Ct 312, 96 L Ed 398 (1952) (“[O]nly if fed-
eral law controls can the federal Act be given that uniform
application throughout the country essential to effectuate
its purposes.”). There is nothing “unacceptably grasping” or
unfair about requiring that interstate railroads that have
notice that they are subject to suit in all states in which they
do business answer FELA claims in those states.
Finally, giving effect to congressional intent and
Oregon sovereignty in this exceptional circumstance would
raise no international comity concerns. It would be rare for a
multinational corporation to own tracks or operate railroads
in the United States or in Oregon, and if it did, it would do so
with notice of FELA’s jurisdictional reach. Allowing Oregon
to assert personal jurisdiction here would not permit all
states in the union to assert jurisdiction over this railroad
Cite as 361 Or 115 (2017) 141
or extend Oregon’s jurisdiction in all instances in which a
foreign business operates or has a physical presence here.
Rather, allowing Oregon to proceed in this case would stand
only for the proposition that the business of this railroad is
“so substantial and of such a nature as to render [it] at home
in [this] State.” Daimler, 134 S Ct at 761 n 19.
The general jurisdictional opening that the Court
preserved in Daimler may be slim, but the principles of dual
sovereignty at play here should permit these plaintiffs to
step through. Congress has an interest in protecting inter-
state railroad employees from harm and in permitting them
to bring federal FELA claims in all states in which such a
railroad does business. Oregon has an interest in protect-
ing its residents from harm inflicted by railroads that own
tracks traversing its lands. This is one of the “exceptional”
circumstances in which defendant is essentially “at home” in
Oregon, even though it is not incorporated and does not have
its principal place of business here. To deny Oregon the right
to exercise its sovereign authority here would be to deny its
traditional exercise of its sovereign powers. I respectfully
dissent.
Brewer, J., joins in this dissenting opinion.