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Case No. SC95514 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM Case No. SC95514 IN THE SUPREME COURT OF MISSOURI STATE OF MISSOURI ex rel. NORFOLK SOUTHERN RAILWAY COMPANY, Relator, v. HONORABLE COLLEEN DOLAN, JUDGE OF THE TWENTY-FIRST JUDICIAL CIRCUIT IN THE COUNTY OF ST. LOUIS, DIVISION 20, Respondent. FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI CASE No. 15SL-CC02095 RESPONDENT’S BRIEF IN OPPOSITION OF PETITION FOR WRIT OF PROHIBITION OR, IN THE ALTERNATIVE, WRIT OF MANDAMUS Edward D. Robertson, Jr. #27183 Eric Holland Mary D. Winter #38328 Holland Law Firm Anthony L. DeWitt #41612 300 N. Tucker Blvd., Suite 801 Bartimus, Frickleton, and St. Louis, MO 63101 Robertson, P.C. 314-241-8111 715 Swifts Highway 314-241-5554 Fax Jefferson City, MO 65109 [email protected] 573-659-4454 573-659-4460 (fax) [email protected] ATTORNEYS FOR RESPONDENT 1 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................ 2 TABLE OF AUTHORITIES ...................................................................... 5 Introduction .............................................................................................. 14 The Due Process Scenarios ...................................................................... 15 a. SCENARIO #1. General Jurisdiction: ........................................ 23 The cause of action arises from dealings that are “entirely distinct” from the corporation’s activities in the forum in which it is “at home.” ............................................................................................................... 23 Specific Jurisdiction: ............................................................................ 34 Overview ............................................................................................... 34 b. SCENARIO #2: A foreign defendant is sued in a forum in which it claims it is not present, but the activity that is the subject of the suit occurred in that forum. ................................................................. 35 c. Scenario #3. A foreign company is sued in a forum but the act that caused the suit occurred outside the forum. ....................................... 51 Standard of Review Applicable to all Points .......................................... 59 I. The preliminary writ should be quashed. Missouri Courts have specific jurisdiction over the underlying action. .................................... 60 2 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM A. The underlying case pleads a cause of action under FELA. FELA creates specific jurisdiction wherever NSRC operates its railroads. ............................................................................................... 61 B. Even if FELA does not decide this case, Missouri has specific jurisdiction over the underling case. ................................................... 68 Conclusion ................................................................................................ 76 II. Missouri Courts have General Jurisdiction over NSRC under these Facts. The Preliminary Writ should be Quashed........................ 78 Conclusion ................................................................................................ 86 III. Registration to do Business and Appointment of an Agent for the Service of Process is Sufficient Alone to Permit Missouri to Exercise Adjudicative Authority over a Corporation. ........................................... 87 Alternatively, such Registration and Appointment, together with a Long History of Continuous and Systematic Contacts with Missouri and a Corporation’s Purposeful Availment of the Benefits of Missouri’s Law that Produced Significant Economic Benefits to the Corporation are Sufficient to Permit Missouri to Exercise Adjudicative Authority over a Corporation. .................................................................................. 87 The Court should Quash the Writ Previously Issued. ........................... 87 3 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM 1. Consent by Registration Comports with Due Process ............... 91 Scenario #4a ...................................................................................... 91 2. Registration to do business + purposeful availment of the benefits of the forum’s law. ................................................................ 101 Scenario #4b .................................................................................... 101 Conclusion .............................................................................................. 104 CERTIFICATE OF COMPLIANCE WITH RULE 84.06(C) ................ 104 CERTIFICATE OF SERVICE ............................................................... 105 4 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM TABLE OF AUTHORITIES Cases Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987) ....... 46 Bane v. Netlink, Inc., 925 F.2d 637, 641 (3d Cir.1991) ......................... 99 Brown v. Lockheed Martin Corp., 814 F.3d 619 (2nd Cir. 2016) 63, 75, 84 Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 232 (Mo.2010)............................................................................................. 102 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 468-69 (1985) 44, 45, 50, 89 Burnam v. Superior Court, 495 U.S. 604 (1990) ................ 17, 26, 85, 102 Calder v. Jones, 465 U.S. 783 (1984) ...................................................... 48 Chalky v. Smithkline Beecham Corp., 2016 WL 705134 (E.D. Mo. 2016) ............................................................................................................... 70 Chew v. Dietrich, 143 F.3d 24, 29 (2nd Cir. 1998) ............................ 53, 55 City of Virginia Beach v. Roanoke River Basin Ass'n, 776 F.2d 484, 487 (4th Cir.1985) .................................................................................. 54, 73 Collar v. Peninsular Gas Co., 295 S.W.2d 88, 90 (Mo.1956) ............... 103 Commercial Cas. Ins. Co. v. Consol. Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252 (1929) ............................................................... 93 Daimler, A.G. v. Bauman, ___ U.S. ___, 134 S.Ct. 746, 754 (2014) ........................................................................................................ passim 5 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM Denver & Rio Grande W. R.R. Co. v. Terte, 284 U.S. 284 (1932) ... 66, 67 Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 364–65 (1952) ..................................................................................................... 68 Dimitrov v. Nissan N. Am., Inc., No. 15 C 06332, 2015 WL 9304490 (N.D. Ill. Dec. 22, 2015) ........................................................................ 78 Douglas v. N.Y., New Haven & Hartford R.R. Co., 279 U.S. 377, 388 (1929) ..................................................................................................... 68 Ex parte Schollenberger, 96 U.S. (6 Otto) 369, 24 L.Ed. 853 (1877) ... 96, 100 Fesniak v. Equifax Mortg. Servs. LLC, 2015 WL 2412119, at *6 (D.N.J. May 21, 2015) ........................................................................................ 92 Fulton v. The Bunker Extreme, Inc., 343 S.W.3d 9, 12 (Mo. Ct. App. 2011) .................................................................................................... 102 Genuine Parts Co. v. Cepec, ___ A.3d ___, 2016 WL 1569077 (Del. 2016) ............................................................................................................... 90 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923 (2011) .............................................................................................. passim Gracey v. Janssen Pharms., Inc., 2015 WL 2066242, at *3 n. 4 (E.D.Mo. May 4, 2015) .......................................................................................... 92 Grubb v. Day to Day Logistics, Inc., 2015 WL 4068742, at *4 (S.D.Ohio July 2, 2015) .......................................................................................... 92 6 Electronically Filed - SUPREME COURT OF MISSOURI July 15, 2016 02:43 PM Hanson v. Denckla, 357 U.S. 235 (1958) ......................................... passim Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) .............................................................................................. passim Helsinn Healthcare S.A. v. Hospira, Inc., 2016 WL 1338601, at *3 (D.N.J. Apr. 5, 2016) ............................................................................. 91 Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010) ................................... 80 Holloway v. Wright & Morrissey, Inc., 739 F.2d 695, 697 (1st Cir.1984) ............................................................................................................... 99 Hutchinson v. Chase & Gilbert, 45 F.2d 139, 141 (2d Cir. 1930) .. 17, 18, 52 In re Oil Spill by the Amoco Cadiz, 699 F.2d 909, 915 (7th Cir.1983) . 54, 74 In re Shaw, 449 S.W.2d 380, 382 (Mo.App.1969) ................................. 102 Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites de Guinee, 456 U.S. 694 (1982) ........................................................................ 43, 47 International Shoe Co., 326 U.S. 310 (1945) ..................................
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