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SCOTUS Declines to Hear BNSF’s Request to Narrow Mallory
On May 4, 2026, the Supreme Court of the United States denied BNSF Railway Co.’s (“BNSF”) petition for certiorari in a case asking whether the dormant Commerce Clause permits a state to require an out-of-state company to consent to general personal jurisdiction as a condition of registering to do business, even when the suit is brought by an out-of-state plaintiff and arises from out-of-state conduct.
In Mallory v. Norfolk Southern Railway Co. (“Norfolk Southern”), the U.S. Supreme Court considered whether due process allowed the exercise of personal jurisdiction over an out-of-state defendant sued by an out-of-state plaintiff alleging out-of-state injuries. Robert Mallory, a former employee of Norfolk Southern in Virginia and Ohio, alleged he developed cancer as a result of asbestos exposure during his employment. Though Norfolk Southern is incorporated in and has its headquarters in Virginia, Mallory nevertheless sued Norfolk Southern in Pennsylvania state court. Norfolk Southern moved to dismiss the case for lack of personal jurisdiction. Mallory, however, argued that not only did Norfolk Southern have regular, systematic, and extensive contacts with Pennsylvania, but a Pennsylvania statute required out-of-state companies that register to conduct business in the Commonwealth to appear in its courts on “any cause of action” against them. On appeal, the U.S. Supreme Court held that due process is not offended by Pennsylvania’s exercise of personal jurisdiction over Norfolk Southern because it had explicitly consented to such jurisdiction by nature of registering to do business in the Pennsylvania.
Three years later, BNSF petitioned the U.S. Supreme Court with a similar, but distinct question. Tanner Lynn, a BNSF employee and Iowa resident, sued BNSF in Minnesota state court for injuries he allegedly sustained while operating a plow car in South Dakota. BNSF argued Minnesota’s registration statute, as interpreted by Minnesota courts as implicitly granting general jurisdiction over out-of-state businesses, impermissibly burdens interstate commerce under the dormant Commerce Clause.
BNSF moved to dismiss the case for lack of jurisdiction since BNSF is incorporated in Delaware, has its principal place of business in Texas, has minimal contacts and employees in Minnesota, and Lynn’s injuries occurred in South Dakota. BNSF also argued Minnesota’s “consent-by-registration regime” violates the dormant Commerce Clause because it burdens and discriminates against interstate commerce. The trial court denied BNSF’s motion, and on appeal, the Minnesota Court of Appeals affirmed. The Minnesota Supreme Court denied review.
In its petition for certiorari, BNSF forewent its due process argument and focused on its allegation that Minnesota’s “consent-by-registration scheme” violates the Commerce Clause. Since both the Minnesota Supreme Court and the U.S. Supreme Court have declined to hear the case, the holding stands and Minnesota’s exercise of personal jurisdiction over BNSF remains permissible.
Key takeaway: The U.S. Supreme Court does not appear inclined to narrow Mallory, and without intervention, Mallory remains broad. Companies should retain counsel to carefully review registration statutes to understand whether registering to do business within the state could be treated as implied consent to personal jurisdiction and to evaluate other options to avoid forum-shopping plaintiffs.