How To Win A Battle But Probably Lose The War At U.S. Supreme Court (Mallory v. Norfolk Southern)

Long-arm jurisdiction? (Photo by Marilyn Swanson)

Mallory v. Norfolk Southern Railway Co.[fn. 1] has got to be one of the most unusual vote-count opinions at the U.S. Supreme Court.

Get this:

Justice Gorsuch writes a plurality opinion, vacating the judgment of the Supreme Court of Pennsylvania and remanding the case, (i) based on Due Process considerations, but (ii) without considering a Commerce Clause issue;
Justices Thomas, Alito, Sotomayor and Jackson join in Parts I and III-B of the plurality opinion;
Justices Thomas, Sotomayor and Jackson (but not Alito) join in Parts II, III-A and IV of the plurality opinion;
Justice Jackson writes a concurring opinion to cite additional precedent for the Due Process result;
Justice Alito writes an opinion concurring in part and concurring in the judgment;
Justice Barrett writes a dissenting opinion; and
Justices Roberts, Kagan and Kavanaugh join in the dissent.

Given such vote count, the Norfolk Southern opinion must address a highly-charged issue—right? Wrong. Norfolk Southern is about the long-arm jurisdiction of state courts.

Plurality Opinion

–Due Process

Justice Gorsuch sets up the Due Process discussion like this. “Imagine a lawsuit based on recent events.”

“A few months ago, a Norfolk Southern train derailed in Ohio near the Pennsylvania border. Its cargo? Hazardous chemicals. Some poured into a nearby creek; some burst into flames. In the aftermath, many residents reported unusual symptoms.”
“Suppose an Ohio resident sued the train conductor seeking compensation for an illness attributed to the accident. Suppose, too, that the plaintiff served his complaint on the conductor across the border in Pennsylvania.”
- “Everyone before us agrees a Pennsylvania court could hear that lawsuit consistent with the Due Process Clause of the Fourteenth Amendment.”
- “The court could do so even if the conductor was a Virginia resident who just happened to be passing through Pennsylvania when the process server caught up with him.”
“Now, change the hypothetical slightly.”
- “Imagine the same Ohio resident brought the same suit in the same Pennsylvania state court, but this time against Norfolk Southern.”
- “Assume, too, the company has filed paperwork consenting to appear in Pennsylvania courts as a condition of registering to do business in the Commonwealth.”
“Could a Pennsylvania court hear that case too?”
- “You might think so.”
- “But today, Norfolk Southern argues that the Due Process Clause entitles it to a more favorable rule, one shielding it from suits even its employees must answer.”

Then, Justice Gorsuch declares this plurality conclusion:

“We reject the company’s argument.”
“Nothing in the Due Process Clause requires such an incongruous result.”

–Commerce Clause

Justice Gorsuch reserves (in footnote 3) a Commerce Clause issue for consideration on remand, like this:

“3. The Pennsylvania Supreme Court did not address Norfolk Southern’s alternative argument that Pennsylvania’s statutory scheme as applied here violates this Court’s dormant Commerce Clause doctrine. . . . Nor did we grant review to consider that question. Accordingly, any argument along those lines remains for consideration on remand.”

Concurring Opinions

–Justice Jackson’s

Justice Jackson writes separately to add additional case law support for the plurality’s Due Process conclusion:

“I agree with the Court that this case is straightforward under our precedents. I write separately to say that, for me, what makes it so is not just our ruling in Pennsylvania Fire Ins. Co. . . . I also consider our ruling in Insurance Corp. of Ireland . . . to be particularly instructive.”

–Justice Alito’s

The primary points of Justice Alito’s concurring opinion are as follows.

“The sole question before us is whether the Due Process Clause of the Fourteenth Amendment is violated . . . I agree with the Court that the answer to this question is no.”
“Assuming that the Constitution allows a State to impose such a registration requirement, I see no reason to conclude that such suits violate the corporation’s right to “‘fair play and substantial justice’” (emphasis in original).
“A State’s assertion of jurisdiction over lawsuits with no real connection to the State may violate fundamental principles that are protected by one or more constitutional provisions or by the very structure of the federal system that the Constitution created.”
“At this point . . . , the most appropriate home for these principles is the so-called dormant Commerce Clause.”
“Norfolk Southern appears to have asserted a Commerce Clause claim below, but the Pennsylvania Supreme Court did not address it. . . . Presumably, Norfolk Southern can renew the challenge on remand.”
“I therefore agree that we should vacate the Pennsylvania Supreme Court’s judgment and remand the case for further proceedings.”

Dissenting Opinion

The dissent focuses entirely on Due Process issues—and makes no mention of the Commerce Clause.

Here is the essence of the dissenting opinion.

“For 75 years, we have held that the Due Process Clause does not allow state courts to assert general jurisdiction over foreign defendants merely because they do business in the State.”
“Pennsylvania nevertheless claims general jurisdiction over all corporations that lawfully do business within its borders.”
“As the Commonwealth’s own courts recognized, that flies in the face of our precedent.”

[Editorial Comment: If, after remand, the same case makes its way back to the U.S. Supreme Court, its gotta be fair to assume that, (i) all the dissenting Justices in Norfolk Southern will reach the same conclusion (i.e., the lawsuit cannot proceed in Pennsylvania), and (ii) at least one of the plurality Justices will join the dissent—only this time on Commerce Clause grounds, instead of Due Process grounds. Right?!]

Pennsylvania Supreme Court

The Pennsylvania Supreme Court below did not allow the lawsuit against Norfolk Southern to proceed, based on Due Process.

That Due Process issue made its way to the U.S. Supreme Court and, as noted above, a five-Justices plurality vacated the Due Process ruling—against a strong Due Process dissent from four Justices.

[Editorial Comment: On remand, its gotta be fair to assume that the Pennsylvania Supreme Court will reach the same result it reached the first time (i.e., the lawsuit cannot proceed in Pennsylvania)—only this time on Commerce Clause grounds, instead of Due Process grounds. Right?!]

Conclusion

Here’s guessing that, after remand:

the Pennsylvania Supreme Court will, once again, refuse to allow the lawsuit to proceed in Pennsylvania state court—only, this time on Commerce Clause grounds, instead of Due Process grounds;
the four Norfolk Southern dissenters will again declare (if given the chance on a second petition for certiorari) that the lawsuit cannot proceed in Pennsylvania—only, this time on Commerce Clause grounds, instead of Due Process grounds; and
at least one of the five Norfolk Southern plurality Justices (if not all of them) will side with the four dissenting Justices (if given the chance on a second petition for certiorari)—on Commerce Clause grounds.

In other words, the plaintiffs who filed the lawsuit against Norfolk Southern in Pennsylvania state court:

may have won a battle, recently, at the U.S. Supreme Court; but
are likely, in the end, to lose the war.

———————

Footnote 1. The U.S. Supreme Court decided its Mallory v. Norfolk Southern Railway Co. case on June 27, 2023, at Case No. 21-1168. Here is a link to the U.S. Supreme Court’s electronic docket for such case.

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