and submitted November 10, 2016
proceeding in mandamus, CC 15CV13390 [*]
Michael Gillette, Schwabe, Williamson & Wyatt, P.C.,
Portland, argued the cause for relator. Sara Kobak filed the
briefs for relator. Also on the briefs were Noah Jarrett and
Aukjen Ingraham of Schwabe, Williamson & Wyatt, P.C., and
Andrew S. Tulumello and Michael R. Huston of Gibson, Dunn
& Crutcher LLP, Washington DC.
Stephen C. Thompson, Kirklin Thompson & Pope, LLP,
Portland, argued the cause and filed the brief for adverse
party. Also on the brief was Kristen A. Chambers.
Ridler Aoyagi, Tonkon Torp LLP, Portland, filed the brief for
amicus curiae Washington Legal Foundation.
T. Hunt, Law Office of Lisa T. Hunt, Lake Oswego, filed the
brief for amicus curiae Oregon Trial Lawyers
Plaintiff brought this action in Oregon against a foreign
corporation to recover for injuries that she sustained in
Washington. 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.
(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 considered a surrogate for the
corporation's state of incorporation or principal place
of business; and (3) appointing a registered agent for
receipt of process pursuant to ORS 60.731(1) does not
constitute implied consent to the jurisdiction of the Oregon
writ to issue.
requires that foreign corporations doing business in this
state appoint a registered agent to receive service of
process. ORS 60.73K1). The primary question that this case
presents is whether, by appointing a registered agent in
Oregon, defendant (a foreign corporation) impliedly consented
to general jurisdiction here-that is, whether defendant
consented to have Oregon courts adjudicate any and all claims
against it regardless of whether those claims have any
connection to defendant's activities in this
state. Defendant moved to dismiss this action
because the trial court lacked general jurisdiction over it.
When the court denied the motion, defendant petitioned for an
alternative writ of mandamus. We issued the writ, the trial
court adhered to its decision, and the trial court's
ruling is now before us for decision. We hold, as a matter of
state law, that the legislature did not intend that
appointing a registered agent pursuant to ORS 60.731(1) would
constitute consent to the jurisdiction of the Oregon courts.
was working for BNSF Railway Company in Pasco, Washington,
where she was repairing a locomotive engine. To perform the
repair, she had to stand on a portable stair placed on a
catwalk on the locomotive. While she was reaching up to
remove an engine part, the "portable stair supplied by
[BNSF] rolled or kicked out from under [p] Iain-tiff, "
causing her to sustain substantial injuries. Plaintiff
alleged that her "injuries resulted in whole or in part
from [BNSF's] negligence in failing to provide [her] with
a safe place to work, and with safe tools and
equipment." For the purposes of this case, we assume
that those allegations are true.
a foreign corporation. It is incorporated in Delaware and has
its principal place of business in Fort Worth,
Texas. Plaintiff brought this action against BNSF
in Oregon to recover for the injuries that she sustained in
Washington. When BNSF moved to dismiss for lack of personal
jurisdiction, plaintiff advanced three arguments. She argued:
(1) that BNSF's activities in this state were sufficient
for Oregon courts to exercise general jurisdiction over it;
(2) that the Federal Employees Liability Act, 35 Stat 65, as
amended, codified as 45 USC sections 51-60, gives a state
general jurisdiction over interstate railroads doing business
in the state; and (3) that, by appointing a registered agent
in Oregon to receive service of process, BNSF had consented
to general jurisdiction in Oregon. Our opinion in Barrett
v. Union Pacific Railroad Co.. 361 Or 115, __ P.3d __
(2017), resolves plaintiff's first two arguments. We
write only to address her third argument regarding
Oregon's registration statute.
OREGON'S REGISTRATION STATUTE
60.721 requires that foreign corporations doing business in
Oregon maintain a registered office and appoint a registered
agent in this state. ORS 60.731(1) provides that the
registered agent "shall be an agent of such corporation
upon whom any process, notice or demand required or permitted
by law to be served upon the corporation may be served."
The parties disagree about what ORS 60.731(1) means. Relying
on a 1915 Oregon case interpreting an earlier corporate
registration statute, plaintiff argues that, by appointing a
registered agent, BNSF impliedly consented to general
jurisdiction in Oregon. BNSF responds that ORS 60.731(1)
requires only that a foreign corporation designate a person
in Oregon upon whom process may be served; it says nothing
about jurisdiction. Alternatively, BNSF argues that, even if
appointing a registered agent manifests implied consent to
specific jurisdiction, it does not constitute consent to
general jurisdiction. Finally, BNSF contends that requiring
foreign corporations to consent to general jurisdiction as a
condition of doing business in Oregon violates the federal
noted above, our holding in this case turns on the
legislature's intent in enacting ORS 60.731(1).
Specifically, we conclude that appointing a registered agent
to receive service of process merely designates a person upon
whom process may be served. It does not constitute implied
consent to the jurisdiction of the Oregon courts. In reaching
that conclusion, we follow our usual methodology for
interpreting statutes. We consider the text, context, and
legislative history of ORS 60.731(1). See State v.
Gaines. 346 Or 160, 170-71, 206 P.3d 1042 (2009)
(describing statutory construction methodology).
"The registered agent appointed by a foreign corporation
authorized to transact business in this state shall be an
agent of such corporation upon whom any process, notice or
demand required or permitted by law to be served upon the
corporation may be served."
ORS 60.731(1) addresses service, not jurisdiction.
Jurisdiction refers to the forum's authority to
adjudicate claims against a defendant. Pennoyer v.
Neff, 95 U.S. 714, 722-23, 24 L.Ed. 565 (1878). Service
refers to the process by which a defendant over whom a court
has jurisdiction is brought before the court. See
id. at 727. Both are necessary for a court to issue a
binding judgment, but the two concepts are not synonymous.
terms, ORS 60.731(1) addresses only one of those concepts.
ORS 60.721 requires foreign corporations doing business here
to designate a registered agent in this state upon whom
process may be served. ORS 60.731(1) defines the function
that the registered agent serves; the agent is a person
authorized to accept service of process "required or
permitted by law" to be served on the corporation. The
statute neither addresses jurisdiction nor equates appointing
an agent for service with consent to jurisdiction in Oregon.
Beyond that, ORS 60.731(1) requires that the agent be
authorized to accept "any process, notice or demand
required or permitted by law to be served upon the
corporation." (Emphasis added.) As the emphasized text
makes clear, ORS 60.731(1) looks to some other source of law
to define which process a registered agent must be
"required or permitted" to accept. If another
source of law (the Fourteenth Amendment or a state long-arm
statute, for instance) does not require or permit process to
be served on the corporation, then ORS 60.731(1) does not
provide an independent source of jurisdiction where there
otherwise would be none. Rather, ORS 60.731(1) merely
requires the registered agent be authorized to accept the
process that another source of law "require[s] or
permit[s]" to be served upon the corporation.
includes "'the preexisting common law and the
statutory framework within which the law was
enacted.'" Stevens v. Czerniak. 336 Or 392,
401, 84 P.3d 140 (2004) (quoting Denton and Denton.
326 Or 236, 241, 951 P.2d 693 (1998)). In this case, there
are three contextual sources that bear on the interpretation
of ORS 60.731(1): (1) due process limitations on exercising
personal jurisdiction over foreign corporations; (2) the 1903
Oregon corporation statute requiring foreign corporations to
appoint a registered agent for service of process as a
condition of doing business here and state cases interpreting
that statute; and (3) the 1953 Oregon corporation statute,
which revised and replaced the 1903 statute and enacted what
is currently codified as ORS 60.731(1). We describe each of
those sources briefly and then explain why those sources
persuade us that this court's interpretation of the 1903
registration statute does not inform the current registration
Constitutional limitations on jurisdiction over foreign
the enactment of the first comprehensive Oregon corporation
statute in 1903 and the first major revision of that statute
in 1953, the terms on which state courts could
constitutionally exercise personal jurisdiction over foreign
corporations changed. A brief discussion of that change in
constitutional law is necessary to put the corresponding
changes to Oregon's registration statutes in perspective.
1878, the United States Supreme Court held that the Due
Process Clause places geographical limits on a state's
exercise of jurisdiction over persons and property.
Pennoyer, 95 U.S. at 722-23; see Burnham v.
Superior Court of CaL, Marin County, 495 U.S. 604, 110
S.Ct. 2105, 109 L.Ed.2d 631 (1990) (plurality) (describing
Pennoyer). Regarding personal jurisdiction, the
Court recognized that a state can adjudicate transient claims
(negligence claims, breach of contract claims, and the like)
against nonresident defendants (natural persons) if those
persons were served within the state's geographical
boundaries. Pennoyer, 95 U.S. at 733; see
Burnham, 495 U.S. at 617 (plurality). Under
Pennoyer, a person's presence within the
state's territorial boundaries gave the state authority
to adjudicate transient claims against that person, and
service while the person was within the state's
jurisdiction perfected that authority.
did not consider when a state can exercise personal
jurisdiction over foreign corporations. Before
International Shoe Co. v. Washington, 326 U.S. 310,
66 S.Ct. 154, 90 L.Ed. 95 (1945), the cases that addressed
that issue started from the proposition that a corporation
was subject to suit only in the state where it was
incorporated. See St. Clair v. Cox, 106 U.S. 350,
354, 1 S.Ct. 354, 27 L.Ed. 222 (1882) (discussing earlier
decisions). As the Court explained, however, "[t]he
doctrine of the exemption of a corporation from suit in a
State other than that of its creation was the cause of much
inconvenience and often of manifest injustice."
Id. To avoid that problem, two related but separate
theories for acquiring jurisdiction over foreign corporations
theory was based on implied consent. See St. Clair,
106 U.S. at 354-55; The Lafayette Insurance Co. v.
French, 59 U.S. (18 How) 404, 407-08, 15 L.Ed. 451
(1855). Consent was implied either because the foreign
corporation was doing business in the state or because the
corporation had complied with a state statute requiring that
it appoint a registered agent in the state to receive service
of process. See William F. Cahill, Jurisdiction
over Foreign Corporations, 30 Harv L Rev 676, 690
(1917); Joseph Henry Beale, The Law of Foreign
Corporations § 280 (1904) (consent implied from
merely doing business in a state). The other theory was based
on presence. A foreign corporation that was doing business in
a state was present in that state in much the same way that a
natural person was. Compare International Harvester v.
Kentucky,234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479
(1914) (continuous course of soliciting business and
delivering machines in Kentucky was sufficient to establish
that the corporation was doing business there and thus
present), with Green v. Chicago, Burlington & Quincy
Ry.,205 U.S. 530, 533-34, 27 S.Ct. 595, 51 L.Ed. 916
(1907) (soliciting ...