The two plaintiffs in BNSF v. Tyrrell and Nelson (Montana S. Ct. 2016) sued in that state for injuries stemming from alleged violations of the 1908 Federal Employees Labor Act (FELA). Tyrrell’s estate claimed he had died from exposure to various carcinogenic chemicals during his employment in South Dakota. Nelson sought damages for knee injuries sustained while working for BNSF in Washington. Neither had worked in Montana, and none of the acts for which BNSF was held responsible occurred there. Plaintiffs admittedly were forum shopping for the venue they felt was mostly likely to find liability and where pecuniary awards were most generous. The Supreme Court has granted BNSF’s petition for certiorari.

International Shoe Co. v. Washington (1945) long has set the constitutional standard for personal general jurisdiction over claims unrelated to the forum. It must meet due process standards and be consistent with “traditional notions of fair play and substantial justice.” There are “instances in which the continuous corporate operations within a state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities,” but those operations must be “continuous and systematic.” Most jurisdictions, including New Jersey, have applied this standard. Many have found jurisdiction proper if the corporate defendant is “doing business” there on an ongoing basis, regardless of whether its activities are relatively insubstantial.

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