Lanham v. BNSF Railway Co.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/01/2020 01:08 AM CDT
- 124 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
Alexander Lanham, appellant and cross-appellee,
v. BNSF Railway Company, appellee
and cross-appellant.
___ N.W.2d ___
Filed February 28, 2020. No. S-19-114.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, determination of a jurisdic-
tional issue is a matter of law which requires an appellate court to reach
a conclusion independent from the trial court’s.
2. Constitutional Law: Due Process: Jurisdiction: Words and Phrases.
Personal jurisdiction is the power of a tribunal to subject and bind a
particular person or entity to its decisions. This power is limited by the
14th Amendment’s Due Process Clause because a state court’s assertion
of jurisdiction exposes defendants to the state’s coercive power.
3. Constitutional Law: Due Process. The Due Process Clause protects an
individual’s liberty interest in not being subject to the binding judgments
of a forum with which he or she has established no meaningful contacts,
ties, or relations.
4. Constitutional Law: Jurisdiction: Statutes: Due Process: States. A
two-step analysis is used to determine whether a Nebraska court may
validly exercise personal jurisdiction over an out-of-state defendant.
First, a court must consider whether Nebraska’s long-arm statute autho-
rizes the exercise of personal jurisdiction over the defendant. Second, a
court must consider whether the exercise of personal jurisdiction over
the defendant comports with due process.
5. Constitutional Law: Due Process: Jurisdiction: States: Appeal and
Error. Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536 (Reissue
2016), extends Nebraska’s jurisdiction over nonresidents having any
contact with or maintaining any relation to this state as far as the U.S.
Constitution permits. Thus, an appellate court needs only to look to the
Due Process Clause when determining personal jurisdiction.
6. Due Process: Jurisdiction: States. Generally, the analysis of whether a
court has personal jurisdiction over a defendant requires a determination
- 125 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
of whether the defendant’s minimum contacts with the forum state are
such that the defendant should reasonably anticipate being haled into
court there. However, this analysis is not required when the parties have
consented to the exercise of personal jurisdiction.
7. Jurisdiction: Waiver. Because the requirement of personal jurisdiction
represents first of all an individual right, it can, like other such rights,
be waived.
8. ____: ____. In order to be valid, the waiver of the requirement of per-
sonal jurisdiction must, at the very least, be clear.
9. Due Process: Jurisdiction: Corporations. The Due Process Clause
precludes a state from exercising general jurisdiction over a corporation
that is not at home in the forum.
10. Jurisdiction: States: Corporations. Absent exceptional circumstances,
a corporation is only at home in two places: the state in which it is
incorporated and the state in which its principal place of business
is located.
11. Jurisdiction: Corporations. A corporation’s registration under Neb.
Rev. Stat. § 21-19,152 (Reissue 2012) does not provide an independent
basis for the exercise of general jurisdiction.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Reversed.
Corey L. Stull and Jeanette Stull, of Atwood, Holsten,
Brown, Deaver & Spier, P.C., L.L.O, and Christopher H.
Leach, of Hubbell Law Firm, L.L.C., for appellant.
Nichole S. Bogen, of Lamson, Dugan & Murray, L.L.P.,
Wayne L. Robbins, Jr., of Robbins Travis, P.L.L.C., and Andrew
S. Tulemello, of Gibson, Dunn & Crutcher, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
This is an appeal from a negligence action under the Federal
Employers’ Liability Act (FELA).1 Appellant, Alexander
Lanham, appeals the order of the district court for Lancaster
1
45 U.S.C. §§ 51 through 60 (2012).
- 126 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
County, Nebraska, granting summary judgment in favor of
appellee, BNSF Railway Company (BNSF). BNSF cross-
appeals, arguing the district court erred in holding that it
had personal jurisdiction over BNSF. We reverse the district
court’s order overruling BNSF’s motion to dismiss for lack
of jurisdiction.
BACKGROUND
On January 16, 2014, Lanham was seriously injured while
working for his employer, BNSF, on a section of train tracks
near Houston, Texas. Lanham generally worked for BNSF as
a track laborer on a rail production “gang” in Iowa, Nebraska,
and Minnesota. Rail production gangs work to repair and
replace rail on train tracks. Lanham’s regular gang “shut down”
during the winter months. To avoid a layoff during the winter
of 2013, Lanham bid for a position replacing railroad ties in
Texas, with the intent to return to his regular rail gang position
when it opened back up in March. Lanham was working on
a section of train tracks in Texas when he hit his foot with a
sledge hammer and sustained injuries as a result.
Lanham filed a complaint in the district court under FELA,
alleging BNSF was negligent in failing to provide him with a
reasonably safe place to work, reasonably safe equipment for
work, and reasonably safe methods for work. Lanham further
alleged that his injuries were a result of BNSF’s negligence.
At the time Lanham’s complaint was filed, he was a resident
of Dorchester, Nebraska. BNSF is a Delaware corporation with
its principal place of business in Fort Worth, Texas. BNSF
currently operates railroads in 28 states, including Nebraska.
Pursuant to Neb. Rev. Stat. § 21-19,152 (Reissue 2012),
BNSF registered with the Secretary of State to do business
in Nebraska and designated an agent for service of process in
the state.
BNSF filed a motion to dismiss the complaint on the grounds
that the district court had neither general nor specific jurisdic-
tion over BNSF. Citing a U.S. Supreme Court case decided in
- 127 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
2014,2 BNSF argued the district court lacked general jurisdic-
tion because BNSF was incorporated in Delaware and has its
principal place of business in Fort Worth; thus, BNSF is not
“‘at home’” in Nebraska. BNSF also argued that the district
court lacked specific jurisdiction over BNSF because Lanham’s
injuries had occurred in Texas, and the complaint failed to
allege any connection between those injuries and Nebraska, or
BNSF’s activities in Nebraska.
The district court overruled the motion to dismiss after find-
ing that BNSF consented to personal jurisdiction by registering
to do business in Nebraska under § 21-19,152. In its order,
the district court extensively relied on the holding of the U.S.
District Court for the District of Nebraska in Consolidated
Infrastructure Group, Inc. v. USIC, LLC.3 Consolidated
Infrastructure Group, Inc. is an unpublished opinion in which
the court concluded that under Nebraska law, “‘[b]y designat-
ing an agent upon whom process may be served within this
state, a defendant has consented to the jurisdiction in personam
by the proper court’”4 based on this court’s prior holding in
Mittelstadt v. Rouzer.5
Because the district court found that BNSF had consented
to personal jurisdiction, the court did not engage in an analysis
of BNSF’s minimum contacts in the state. However, it quoted
Consolidated Infrasructure Group, Inc.6 and noted that BNSF’s
“‘activities in this state are not the sort of random or attenu-
ated conduct that has been insufficient to confer jurisdiction on
the court.’”
2
Daimler AG v. Bauman, 571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624
(2014).
3
Consolidated Infrastructure Group, Inc. v. USIC, LLC, No. 8:16CV472,
2017 WL 2222917 (D. Neb. May 18, 2017) (unpublished opinion).
4
Id. at *7 (quoting Mittelstadt v. Rouzer, 213 Neb. 178, 328 N.W.2d 467
(1982)).
5
Mittelstadt, supra note 4.
6
See Consolidated Infrastructure Group, Inc., supra note 3.
- 128 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
BNSF subsequently filed a motion for summary judgment
on the grounds that the district court lacked personal jurisdic-
tion over BNSF and, alternatively, that Lanham was unable to
present any evidence of BNSF’s negligence. The district court
overruled the motion on the issue of jurisdiction and sustained
it on the issue of negligence.
Lanham appeals the district court’s order granting summary
judgment in favor of BNSF. BNSF filed a cross-appeal, arguing
that the district court erred in holding it had personal jurisdic-
tion over BNSF.
ASSIGNMENTS OF ERROR
Lanham’s sole assignment of error is that the district court
erred in granting summary judgment in favor of BNSF. In its
cross-appeal, BNSF assigns, restated, that the district court
erred in holding BNSF’s registration to do business in the State
of Nebraska constituted consent to personal jurisdiction.
STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, determination of a jurisdictional issue is a matter of
law which requires an appellate court to reach a conclusion
independent from the trial court’s.7
ANALYSIS
BNSF argues that Nebraska law does not provide for consent
by registration and that even if Nebraska’s registration statute
could be construed to extract consent to personal jurisdiction,
such an exercise of general jurisdiction would violate the Due
Process Clause of the U.S. Constitution. Because we believe
this issue is dispositive, we will discuss it first.
[2,3] Personal jurisdiction is the power of a tribunal to
subject and bind a particular person or entity to its decisions.8
7
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705, 905
N.W.2d 644 (2018).
8
Id.
- 129 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
This power is limited by the 14th Amendment’s Due Process
Clause because “‘[a] state court’s assertion of jurisdiction
exposes defendants to the State’s coercive power.’”9 The Due
Process Clause protects an individual’s liberty interest in
not being subject to the binding judgments of a forum with
which he or she has established no meaningful contacts, ties,
or relations.10
[4] A two-step analysis is used to determine whether a
Nebraska court may validly exercise personal jurisdiction over
an out-of-state defendant.11 First, a court must consider whether
Nebraska’s long-arm statute authorizes the exercise of personal
jurisdiction over the defendant.12 Second, a court must consider
whether the exercise of personal jurisdiction over the defendant
comports with due process.13
[5] Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536
(Reissue 2016), extends Nebraska’s jurisdiction over nonresi-
dents having any contact with or maintaining any relation to
this state as far as the U.S. Constitution permits.14 Thus, we
need only look to the Due Process Clause when determining
personal jurisdiction.15
[6-8] Generally, this analysis requires a determination of
whether the defendant’s minimum contacts with the forum
state are such that the defendant should reasonably anticipate
9
Bristol-Myers Squibb v. Superior Ct. of CA, ___ U.S. ___, 137 S. Ct.
1773, 1779, 198 L. Ed. 2d 395 (2017) (quoting Goodyear Dunlop Tires
Operations, S. A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 180 L. Ed. 2d.
796 (2011)).
10
Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191
(2005) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct.
2174, 85 L. Ed. 2d 528 (1985)).
11
Hand Cut Steaks Acquisitions, supra note 7.
12
Id.
13
Id.
14
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).
15
See id.
- 130 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
being haled into court there.16 However, this analysis is not
required when the parties have consented to the exercise of
personal jurisdiction.17 “Because the requirement of personal
jurisdiction represents first of all an individual right, it can, like
other such rights, be waived.”18 In order to be valid, the waiver
“must, at the very least, be clear.”19
Consent by Registration.
In concluding that BNSF had consented to jurisdiction in
Nebraska, the district court relied on this court’s prior holding
in Mittelstadt,20 where we appear to have held that a corpora-
tion’s appointment of an agent for service constitutes implied
consent to general jurisdiction in the state.21 In that case,
Nebraska residents sued an Arkansas corporation for damages
arising out of an automobile accident that occurred in Arizona,
and the defendant corporation had no contacts with Nebraska
other than its trucks’ limited use of the highways.22 We held
that by appointing a resident agent for service as required by
the federal Motor Carrier Act, the “nonresident corporation
ha[d] consented to jurisdiction within this state at least as to
any cause of action arising out of its activities as a motor car-
rier in interstate commerce.”23
The reasoning in Mittelstadt reflects the 19th century’s tra-
ditional view of personal jurisdiction, where personal jurisdic-
tion could be obtained over a nonresident by personal service
16
McKinney, supra note 10.
17
See id.
18
Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 703, 102 S. Ct.
2099, 72 L. Ed. 2d 492 (1982).
19
Fuentes v. Shevin, 407 U.S. 67, 95, 92 S. Ct. 1983, 32 L. Ed. 2d 556
(1972) (emphasis omitted).
20
Mittelstadt, supra note 4.
21
See John P. Lenich, Nebraska Civil Procedure § 3:9 (2019).
22
Mittelstadt, supra note 4.
23
Id. at 184, 328 N.W.2d at 470.
- 131 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
in the state.24 Under the rigid territorial approach espoused in
the U.S. Supreme Court case of Pennoyer v. Neff,25 state courts
could only exercise personal jurisdiction over a defendant that
was physically present within the state’s borders because a
tribunal’s jurisdiction was limited to the territorial limits of the
state in which it was established. A natural person was deemed
to be physically present in a state and subject to personal
jurisdiction if he or she could be served with process in the
state.26 However, because a corporation was only deemed to be
physically present in its state of incorporation, courts lacked
authority to exercise personal jurisdiction over out-of-state
corporations.27
With the rise of interstate commerce, many states began
“assimilating corporations to natural persons”28 and enacted
statutes requiring foreign corporations to appoint an instate
agent for service of process when seeking to do business in the
state.29 Based on this “purely fictional” doctrine of “consent
and presence,” courts permitted substituted service on a for-
eign corporation’s registered instate agent.30 In 1917 and 1939,
the U.S. Supreme Court endorsed this procedure in Penna.
Fire Ins. Co. v. Gold Issue Mining Co.31 and Neirbo Co. v.
Bethlehem Corp.32
24
See Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604, 110
S. Ct. 2105, 109 L. Ed. 2d 631 (1990).
25
Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1877).
26
Id.
27
St. Clair v. Cox, 106 U.S. 350, 1 S. Ct. 354, 27 L. Ed. 222 (1882).
28
See Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 169, 60 S. Ct. 153, 84
L. Ed. 167 (1939).
29
Neirbo Co., supra note 28.
30
Burnham, supra note 24, 495 U.S. at 618 (plurality opinion).
31
Penna. Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93, 37 S. Ct. 344,
61 L. Ed. 610 (1917).
32
Neirbo Co., supra note 28.
- 132 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
Mittelstadt was decided in 1982.33 At that time, many other
states had similarly held that a foreign corporation’s authori-
zation of an agent to accept service of process within a state
constitutes consent to personal jurisdiction in the state.34 Since
that time, the U.S. Supreme Court’s jurisprudence regarding
the scope of general jurisdiction permitted by the Due Process
Clause has resulted in a tremendous shift.
In 2011 and 2014, the U.S. Supreme Court set significantly
narrower due process limits on the states’ exercise of general
jurisdiction over out-of-state corporations. The Court aban-
doned the territorial approach of Pennoyer,35 and the central
focus became the “‘relationship among the defendant, the
forum, and the litigation.’”36
In Goodyear Dunlop Tires Operations, S. A. v. Brown,37 the
Court clarified the difference between general (all-purpose)
jurisdiction and specific jurisdiction when holding that general
jurisdiction over a defendant is limited to jurisdictions in which
the defendant’s contacts “render them essentially at home in
the forum State.” In doing so, the Court articulated: “A corpo-
ration’s ‘continuous activity of some sorts within a state,’ . . .
33
Mittelstadt, supra note 4.
34
See, e.g., Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th
Cir. 1990) (applying Minnesota law when holding “[a]ppointment of a
registered agent for service is . . . a traditionally recognized and well-
accepted species of general consent”); Bohreer v. Erie Ins. Exchange,
216 Ariz. 208, 214, 165 P.3d 186, 192 (Ariz. App. 2007) (“by agreeing to
appoint an agent for service of process to do business in a state, a foreign
corporation expressly consents to general personal jurisdiction without any
need for minimum contact analysis”). See, also, Merriman v. Crompton
Corp., 282 Kan. 433, 146 P.3d 162 (2006); Sternberg v. O’Neil, 550 A.2d
1105 (Del. 1988); Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421
(S.D. 1985).
35
Pennoyer, supra note 25.
36
Daimler AG, supra note 2, 571 U.S. at 133 (quoting Shaffer v. Heitner, 433
U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977)).
37
Goodyear Dunlop Tires Operations, S. A., supra note 9, 564 U.S. at 919.
- 133 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
‘is not enough to support the demand that the corporation be
amenable to suits unrelated to that activity.’”38
[9,10] In Daimler AG v. Bauman,39 the Court made clear
that the Due Process Clause precludes a state from exercising
general jurisdiction over a corporation that is not “‘at home
in the forum.’” The Court clarified that absent exceptional
circumstances, a corporation is only at home in two places:
the state in which it is incorporated and the state in which
its principal place of business is located.40 The Court rejected
the argument that a foreign corporation’s “‘continuous and
systematic’” business activities in a state are sufficient for the
exercise of general jurisdiction as being inconsistent with due
process.41 The Court stated that this type of “global reach”
was “unacceptably grasping” and “exorbitant.”42 The Court
also warned that cases “decided in the era dominated by
Pennoyer’s territorial thinking . . . should not attract heavy
reliance today.”43
In the present case, the district court concluded BNSF had
consented to jurisdiction based solely on its compliance with
§ 21-19,152.
Section 21-19,152 provides:
Each foreign corporation authorized to transact busi-
ness in this state must continuously maintain in this state:
(1) A registered office with the same address as that
of its current registered agent. A post office box number
may be provided in addition to the street address of the
registered agent; and
38
Id., 564 U.S. at 927 (quoting Internat. Shoe Co. v. Washington, 326 U.S.
310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)).
39
Daimler AG, supra note 2, 571 U.S. at 122 (quoting Goodyear Dunlop
Tires Operations, S. A., supra note 9).
40
Daimler AG, supra note 2.
41
Id., 571 U.S. at 138 (quoting Internat. Shoe, supra note 38).
42
Id., 571 U.S. at 137, 139.
43
Id., 571 U.S. at 138 n.18.
- 134 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
(2) A registered agent, who may be:
(i) An individual who resides in this state and whose
office is identical with the registered office;
(ii) A domestic business or nonprofit corporation whose
office is identical with the registered office; or
(iii) A foreign business or nonprofit corporation autho-
rized to transact business in this state whose office is
identical with the registered office.
Section 21-19,152 does not explicitly state that compliance
with the statute constitutes a waiver of the foreign corpora-
tion’s right to require personal jurisdiction. Therefore, BNSF
could not be said to have expressly consented to jurisdiction
by merely complying with the statute. Lanham asserts that a
corporation’s consent may be implied when § 21-19,152 oper-
ates in tandem with Neb. Rev. Stat. § 21-2,207(b) (Cum. Supp.
2018). Section 21-2,207(b) includes a provision stating that
a foreign corporation with a valid certificate of authority “is
subject to the same duties, restrictions, penalties, and liabilities
now or later imposed on a domestic corporation of like charac-
ter.” But, even assuming BNSF’s registration to do business in
Nebraska constitutes implied consent, the exercise of personal
jurisdiction must comport with due process.
We conclude that treating BNSF’s registration to do business
in Nebraska as implied consent to personal jurisdiction would
exceed the due process limits prescribed in Goodyear Dunlop
Tires Operations, S. A.44 and Daimler AG.45 Currently, every
state requires a foreign corporation “doing business in the state
to register . . . and appoint an agent for service of process.”46
Consequently, consent by registration would permit a corpo-
ration to be subject to general jurisdiction in every state in
which it does business. This is the same type of “global reach”
44
Goodyear Dunlop Tires Operations, S. A., supra note 9.
45
Daimler AG, supra note 2.
46
Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the
Fallacy of Consent, 36 Cardozo L. Rev. 1343, 1363 (2015).
- 135 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
jurisdiction the U.S. Supreme Court expressly rejected as being
inconsistent with due process.47 The Second Circuit Court of
Appeals has observed:
If mere registration and the accompanying appointment
of an in-state agent—without an express consent to gen-
eral jurisdiction—nonetheless sufficed to confer general
jurisdiction by implicit consent, every corporation would
be subject to general jurisdiction in every state in which
it registered, and Daimler’s ruling would be robbed of
meaning by a back-door thief.48
[11] Since Daimler AG was decided, the vast majority of
state and federal courts have rejected consent by registration as
being irreconcilable with Goodyear Dunlop Tires Operations,
S. A. and Daimler AG.49 In light of the due process limits
prescribed in Goodyear Dunlop Tires Operations, S. A. and
Daimler AG, we join the majority of jurisdictions and hold that
a corporation’s registration under § 21-19,152 does not provide
47
See Daimler AG, supra note 2, 571 U.S. at 139.
48
Brown v. Lockheed Martin Corp., 814 F.3d 619, 640 (2d Cir. 2016).
49
See, e.g., Genuine Parts Co. v. Cepec, 137 A.3d 123, 145 n.120 (Del.
2016) (overruling Sternberg v. O’Neil, 550 A.2d 1105 (Del. 1988), and
holding consent by registration is incompatible with Daimler AG); Howe
v. Samsung Electronics America, Inc., No. 1:16cv386, 2018 WL 2212982
at *5 (N.D. Fla. Jan. 5, 2018) (unpublished opinion) (“requirement
to designate a registered agent is not intended to—and in any event
under the Due Process Clause could not—subject a corporation to an
action over which a state’s courts cannot properly exercise jurisdiction.
Were it otherwise, the Supreme Court’s decisions recognizing limits
on personal jurisdiction over out-of-state corporations would be nearly
meaningless”). See, also, Am Trust v. UBS AG, 681 Fed. Appx. 587
(9th Cir. 2017); Beasley v. Providence Hospital, No. 18-0004, 2018
WL 2994380 (S.D. Ala. June 13, 2018) (unpublished opinion); Perry
v. JTM Capital Management, LLC, Nos. 17 C 7601, 17 C 7769, 2018
WL 1635855 (N.D. Ill. Apr. 5, 2018) (unpublished opinion). But see
American Dairy Queen Corporation v. W.B. Mason Co., Inc., No.
18-cv-693, 2019 WL 135699 (D. Minn. Jan. 8, 2019) (unpublished
opinion) (holding consent by registration remains independent basis for
personal jurisdiction).
- 136 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
an independent basis for the exercise of general jurisdiction.
Accordingly, we overrule Mittelstadt to the extent that applying
it outside the context of the federal Motor Carrier Act conflicts
with Daimler AG and Daimler AG’s progeny.50
“At Home” for Purposes of
General Jurisdiction.
During oral argument, Lanham asserted that while BNSF
is neither incorporated in nor maintains its principal place of
business in Nebraska, exceptional circumstances exist mak-
ing BNSF “at home” in the state. Lanham contends the
fact that BNSF owns approximately $108 million of prop-
erty in Nebraska, maintains 11 percent of its workforce in
Nebraska, is the second highest tax payer in Nebraska, and
has stated that Nebraska is one of the most important states
in which it operates, suffices to make BNSF “at home” in the
state for purposes of general jurisdiction. However, the U.S.
Supreme Court rejected a similar argument in BNSF Ry. Co.
v. Tyrrell.51
In Tyrrell, the Court held that notwithstanding BNSF’s over
2,000 miles of railroad tracks and more than 2,000 employ-
ees in Montana, BNSF was not subject to general jurisdiction
in Montana because BNSF is not incorporated in Montana,
did not maintain its principal place of business in Montana,
and was not “so heavily engaged in activity in Montana ‘as
to render [it] essentially at home’ in that State.”52 The Court
articulated that “‘the general jurisdiction inquiry does not focus
solely on the magnitude of the defendant’s in-state contacts.’”53
Instead, the Court explained, “the inquiry ‘calls for an appraisal
of a corporation’s activities in their entirety’; ‘[a] corporation
50
See Mittelstadt, supra note 4.
51
BNSF Ry. Co. v. Tyrrell, ___ U.S. ___, 137 S. Ct. 1549, 198 L. Ed. 2d 36
(2017).
52
Id., 137 S. Ct. at 1559 (quoting Daimler AG, supra note 2).
53
Id.
- 137 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
that operates in many places can scarcely be deemed at home
in all of them.’”54
Clarifying the “exceptional case,” the Tyrrell Court recog-
nized Perkins v. Benguet Mining Co.,55 as an example of a
case in which a corporation was “‘at home’” in a forum other
that its state of incorporation or principal place of business.56
In Perkins, the defendant corporation was incorporated under
the laws of the Philippines, where it operated gold and silver
mines.57 During the Japanese occupation of the Philippines in
World War II, the corporation ceased its mining operations and
the corporation’s president moved to Ohio, “where he kept
an office, maintained the company’s files, and oversaw the
company’s activities.”58 The Daimler AG Court stated that the
Perkins Court concluded that the corporation was subject to
personal jurisdiction in Ohio because Ohio had become “‘the
corporation’s principal, if temporary, place of business.’”59
In the present case, BNSF is not incorporated in Nebraska,
nor does it maintain its principal place of business in Nebraska.
BNSF is incorporated in Delaware, and it is undisputed that
BNSF’s principal place of business is in Fort Worth. All
of BNSF’s principal officers and managing departments are
located in Texas, along with its central network operations cen-
ter, which monitors BNSF’s network operations and dispatches
trains. BNSF’s interstate rail system includes 32,500 miles of
train tracks in 28 states and three Canadian provinces. Only
1,478 miles of these tracks are located in Nebraska, and only
54
Id.
55
Perkins v. Benguet Mining Co., 342 U.S. 437, 448, 72 S. Ct. 413, 96 L.
Ed. 485 (1952).
56
Tyrrell, supra note 51, 137 S. Ct. at 1558 (quoting Daimler AG, supra
note 2).
57
See Daimler AG, supra note 2.
58
Id., 571 U.S. at 129.
59
Id. (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct.
1473, 79 L. Ed. 2d 790 (1984)).
- 138 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
LANHAM v. BNSF RAILWAY CO.
Cite as 305 Neb. 124
4,479 of BNSF’s 41,000 employees are employed in Nebraska.
Finally, of BNSF’s nationwide revenues, less than 8 percent are
revenues from Nebraska.
BNSF’s business in Nebraska, although significant, is not
“so ‘continuous and systematic’ as to render [it] essentially at
home”60 in the state. Consequently, BNSF’s business activities
in Nebraska do not permit the exercise of general jurisdiction
over BNSF for claims that are unrelated to BNSF’s activity
occurring in the state. We hold that BNSF is not “at home” in
Nebraska for purposes of general jurisdiction.
CONCLUSION
We conclude that the district court erred in determining it
could exercise personal jurisdiction over BNSF for claims that
are unrelated to BNSF’s instate activity. Because of this deter-
mination, we do not reach Lanham’s assignment of error. The
district court’s order overruling BNSF’s motion to dismiss for
lack of jurisdiction is reversed.
Reversed.
60
Id., 571 U.S. at 127 (quoting Goodyear Dunlop Tires Operations, S. A.,
supra note 9).