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IN the SUPREME COURT of the STATE of GEORGIA CASE NO. S20G1368 COOPER TIRE & RUBBER COMPANY, Appellant, V. TYRANCE MCCALL

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IN the SUPREME COURT of the STATE of GEORGIA CASE NO. S20G1368 COOPER TIRE & RUBBER COMPANY, Appellant, V. TYRANCE MCCALL Case S20G1368 Filed 02/22/2021 Page 1 of 32 IN THE SUPREME COURT OF THE STATE OF GEORGIA CASE NO. S20G1368 COOPER TIRE & RUBBER COMPANY, Appellant, v. TYRANCE MCCALL, Appellee. BRIEF OF APPELLANT Christopher S. Anulewicz Georgia Bar No. 020914 BALCH & BINGHAM LLP 30 Ivan Allen Jr. Boulevard, Suite 700 Atlanta, Georgia 30308 Telephone: (404) 261-6020 Facsimile: (404) 261-3656 Eric D. Ruben Pro Hac To Be Applied For Douglas E. Horelick Pro Hac To Be Applied For CLYDE & CO US LLP 1221 Brickell Ave. Suite 1600 Miami, Florida 33141 Telephone: (305) 446-2646 Facsimile: (305) 441-2374 Attorneys for Appellant 9715398.5 Case S20G1368 Filed 02/22/2021 Page 2 of 32 Appellant Cooper Tire & Rubber Company (“Cooper”) requests this Court to reverse the Georgia Court of Appeals’ decision in McCall v. Cooper Tire & Rubber Company, 355 Ga. App. 273 (2020) (the “Opinion”), and overrule its own decision in Allstate Ins. Co. v. Klein, 262 Ga. 599 (1992). I. INTRODUCTION Twenty-nine years ago, in the shadow of the United States Supreme Court’s prior personal jurisdiction jurisprudence, this Court in Allstate Ins. Co. v. Klein, 262 Ga. 599 (1992), held Georgia courts can exercise general1 personal jurisdiction over foreign corporations solely because those corporations registered to do business here. Klein was based on a flawed statutory interpretation of Georgia’s specific jurisdiction long arm statutes, O.C.G.A. §§ 9-10-90 and 9-10-91. Klein recognized that personal jurisdiction must also comport with the Due Process Clause of the U.S. Constitution. In dicta, Klein surmised the exercise of general personal jurisdiction based solely on business registration complied with due process. Klein was wrongly decided and its holding violates the Due Process Clause. Klein should be overruled. Since Klein, the U.S. Supreme Court has adopted a new, bright-line due process standard that permits states to exercise general personal jurisdiction only 1 “General personal jurisdiction” is interchangeable with “all-purpose personal jurisdiction.” See Daimler AG v. Bauman, 571 U.S. 117, 121 (2017). This Brief refers to “general personal jurisdiction.” 1 9715398.5 Case S20G1368 Filed 02/22/2021 Page 3 of 32 when a foreign defendant is “at home” in the state.2 See Goodyear Dunlop Tires Operation, S.A. v. Brown, 564 U.S. 915 (2011); Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Railway Co. v. Tyrrell, 137 S. Ct. 1549 (2017); Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773 (2017). In Goodyear, Daimler, BNSF, and Bristol-Myers, the U.S. Supreme Court held a foreign corporation is subject to general jurisdiction consistent with due process only (1) in the state of its incorporation, (2) in the state of its principal place of business, and (3) in an “exceptional case” where its operations are so substantial and of such a nature as to render the corporation “at home” in a state. Since Daimler, due process prohibits states from extending general jurisdiction over foreign corporations beyond these “at home” criteria. Cooper is a Delaware corporation with its principal place of business in Ohio. Appellee Tyrance McCall is a Florida resident who was involved in an automobile accident in Florida. McCall alleges a tire on the accident vehicle was defectively designed (in Ohio) and manufactured (in Arkansas) by Cooper. McCall did not sue Cooper in Delaware, Ohio, Florida, or Arkansas. Instead, McCall, relying on Klein, sued Cooper in Georgia solely on the basis that Cooper is registered to do business here. The trial court dismissed McCall’s complaint against Cooper for lack of 2 This new standard eliminated the prior standard’s focus on the magnitude of a defendant’s in-state contacts. 2 9715398.5 Case S20G1368 Filed 02/22/2021 Page 4 of 32 jurisdiction because Cooper is not “at home” in Georgia.3 The Georgia Court of Appeals reversed, finding it was bound by Klein to conclude that, because Cooper is registered to do business in Georgia, Cooper is a resident corporation that may be sued in Georgia to the same extent as a domestic corporation. See McCall, 355 Ga. App. at 274-75. The Court of Appeals’ Opinion violates Cooper’s due process rights. Every state supreme court and federal appellate court to have considered this issue since Daimler has held mere compliance with a state’s corporate registration statute cannot subject a foreign corporation to that state’s general jurisdiction and still comport with due process.4 Georgia should overturn Klein and bring its jurisprudence in line with Goodyear, Daimler, BNSF, Bristol-Myers, and the uniform chorus of case decisions extending therefrom. II. STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to Ga. Const., Art. VI, § 6, ¶ 5. 3 The trial court determined it did not have general or specific personal jurisdiction over Cooper. [V3:392] McCall did not challenge the trial court’s specific personal jurisdiction finding on appeal. 4 “After Daimler, there is ‘little room’ to argue that compliance with a state’s ‘bureaucratic measures’ render [sic] a corporation at home in a state.” Waite v. All Acquisition Corp., 901 F.3d 1307, 1318 (11th Cir. 2018) (quoting Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2nd Cir. 2016)). If this were not true, “[g]iven the number of states that subject foreign corporations to domestication requirements, foreign corporations would likely be subject to general jurisdiction in every state where they operate – a result directly at odds with the views expressed by the Court in Daimler.” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 136 (4th Cir. 2020). 3 9715398.5 Case S20G1368 Filed 02/22/2021 Page 5 of 32 III. STATEMENT OF THE CASE A. Relevant Facts McCall is a resident of Florida. [V3:327] On April 24, 2016, McCall was a passenger in a vehicle owned and operated by Karla Gould5 in Florida when the left rear tire experienced a tread separation. [V3:330, 331] Gould failed to control the vehicle, which left the roadway and rolled over. [V3:332, 333] McCall was ejected from the vehicle and sustained non-life threatening injuries. [V3:332]6 The tire at issue is a Dakota H/T Definity M+S brand P265/70R17 passenger tire, bearing Department of Transportation number UTT6PA74612, indicating it was manufactured at Cooper’s Texarkana, Arkansas, plant in 2012. [V2:148; V3:330] McCall’s complaint claims Cooper is liable in strict liability and negligence and seeks punitive damages for the injuries he sustained in the Florida accident. [V3:333-46] As to jurisdiction, the complaint alleges: Defendant Cooper Tire & Rubber Company (“Cooper Tire”) is a foreign entity with its principal place of business in Findlay, Ohio. On April 14, 2016, at the time Plaintiff McCall’s cause of action arose as set forth in the First Amended Complaint, Cooper Tire was authorized to do or to transact business in the State of Georgia and has remained so authorized at all times pertinent to this First Amended Complaint. 5 Gould is a Georgia resident who bought the car used and with the subject used tire already mounted on it from Defendant Pars Car Sales, Inc. in Duluth, Georgia in 2016. [V3:329, 331] The claims against these Georgia defendants are pending in the trial court. 6 McCall chose to file his complaint in Georgia because he was not wearing a seatbelt at the time of the accident. Florida recognizes the “seatbelt defense” in personal injury actions, whereas Georgia does not. 4 9715398.5 Case S20G1368 Filed 02/22/2021 Page 6 of 32 Cooper Tire, therefore, is a “resident” of the State of Georgia for purposes of personal jurisdiction over it in this action pursuant to O.C.G.A. §§ 9-10-90, 9-10-91, and other applicable authority. [V3:327-28] As the complaint acknowledges, Cooper is a Delaware corporation with its principal place of business in Ohio. [V2:147; V3:327] Cooper does not maintain any bank accounts or corporate records, own any property, conduct any corporate meetings of officers or directors, maintain any research and development divisions, maintain any testing or manufacturing facilities, or employ any chemists, engineers, or any other employees involved in the design and/or manufacture of tires in Georgia, and it never directly targeted Georgia for any marketing campaign including for the sale of the type of tire in this accident. [V2:148] Between 2013 and 2017 an average of only 3.7% of Cooper’s worldwide sales were made in Georgia, and an average of only 4.1% of its nationwide sales were made in Georgia. [V2:148; V3:466] Thus, 96.3% of Cooper’s worldwide sales and 95.9% of its nationwide sales were not in Georgia. B. Proceedings Below Cooper expressly raised in the trial court the question of the constitutionality of the Klein Court’s interpretation of Georgia’s long arm and business registration statutes, and Cooper argued Klein had been invalidated by Daimler and could not stand in the face of Daimler. [V3:359-61, 412-13, 415, 416, 417; T:17] On 5 9715398.5 Case S20G1368 Filed 02/22/2021 Page 7 of 32 December 7, 2018, the trial court, citing BNSF, granted Cooper’s motion to dismiss for lack of personal jurisdiction, finding Cooper “showed it is not at home in Georgia, for the purposes of general personal jurisdiction.” [V3:392] On March 12, 2019, the trial court denied McCall’s motion for reconsideration of its order, rejecting, including on constitutional grounds, the arguments made by McCall and rebutted by Cooper that Georgia statutes subjected Cooper to general jurisdiction via “residency.” [V2:12] The trial court stated: For the reasons set forth in ..
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