FELA: Montana courts have general personal jurisdiction over BNSF “doing business in Montana” under FELA and Montana law… Moses affirmed (had denied motion to dismiss suit by nonresident Plaintiff injured outside Montana), Baugh reversed (had granted motion to dismiss PR of Plaintiff injured outside Montana).

Robert Nelson, a North Dakota resident, sued BNSF in 3/11 to recover damages for knee injuries allegedly sustained as a truck driver. He did not allege that he ever worked in Montana or was injured in Montana. BN is a Delaware corporation with principal place of business in Texas. It moved to dismiss for lack of personal jurisdiction. Judge Baugh granted the motion, stating:

I believe 3 Judges in this District have faced similar Motions which they have denied based on applicable precedent. Their rulings seem sound but do not look at whether based on common sense it may be time to reassess FELA cases in Montana which have no forum related connection.

He then relied on Daimler (US 2014) to hold that “due process rights prevent this Court from exercising general all-purpose jurisdiction over [BN] and this Court does not have specific jurisdiction.” Nelson appeals.

Kelli Tyrrell sued BN in 5/14 for injuries Brent Tyrrell allegedly sustained by exposure to chemicals that ultimately caused his death. She did not allege that he ever worked for BN in Montana or that any of the exposures occurred in Montana. BN moved to dismiss for lack of personal jurisdiction. Judge Moses denied the motion, adopting Judge Todd’s ruling denying BN’s motion to dismiss in Monroy in which Todd found:

BNSF has established 40 new facilities in Montana since 2010 and invested $470 million dollars in Montana in the last four years. In 2010 Montana shipped by BNSF 35.2 million tons of coal, 8.5 million tons of grain and 2.9 million tons of petroleum. In the last year approximately 57,000 BNSF rail cars of grain per year rode the rails in Montana and 230,000 BNSF rail cars of coal per year go out of Montana. In October 2013, BNSF opened an economic development office in Billings, Montana, because of the heightened amount of business not only for coal and grain in Montana, but in particular the Bakken oil development.

Todd analyzed Montana and USSC FELA precedent and concluded that under Rule 4(b)(1), BN “does meet the criteria of being found within Montana and having substantial, continuous and systematic activities within Montana for general jurisdiction purposes.” BN appeals.

Montana courts have general personal jurisdiction over BN under FELA. Daimler, which addressed “the authority of a court in the United States to entertain a claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States,” did not involve FELA and did not address personal jurisdiction under FELA, nor did it need to as the USSC has long held that FELA does not apply to torts that occur in foreign countries, even when all parties are US citizens. See Chisholm (US 1925). Nor did Daimler present novel law; it emphasized prior holdings that general jurisdiction requires foreign corporations to have affiliations so “continuous and systematic” as to render them “at home” in the forum state. Congress drafted FELA to make a railroad “at home” wherever it is “doing business.” Kepner (US 1941). Terte (US 1932), which held that Denver & Rio Grande RR could not be sued in Missouri by an employee seeking damages for injuries sustained in Colorado but that the Santa Fe RR was “properly sued” by that employee in Missouri, provides further guidance on whether BN is subject to suit by way of “doing business” in Montana. BN owns & operates lines in Montana, is licensed to do business and has offices & agents in Montana, and its agents in Montana transact business ordinarily connected with operation of a railroad, and thus under the reasoning in Terte, it is “properly sued” in Montana. This is in line with the USSC’s “liberal construction” of FELA in favor of railroad workers. Urie (US 1949). 45 USC 56 does not specify whether the “concurrent jurisdiction” conferred upon state and federal courts refers only to subject jurisdiction or personal jurisdiction; the USSC has never given it such an interpretation and it is not our province to insert such a limitation. Moreover, as BN’s counsel acknowledged at oral argument, BN’s interpretation of §56 would mean that a Montana resident, hired & employed by BN in Montana, who was injured while working even temporarily for BN in another state, would not be able to bring his action in the state in which he regularly resides and where his employer regularly conducts business. Such a result is in direct contravention of FELA’s purpose of protecting injured workers from the “injustice” of having to travel far from home to sue the railroad. Kepner. And if Montana residents may sue BN in a Montana state court for injuries that occur outside Montana, so may residents of other states. Miles (US 1942) (“To deny citizens from other states, suitors under [FELA], access to [Missouri’s] courts would, if [Missouri] permitted access to its own citizens, violate the Privileges and Immunities Clause.”) Relying on a case that is factually & legally distinguishable, BN asks us to depart from the language of §56 — and a century of USSC precedent interpreting it — to conclude that FELA no longer provides Montana courts jurisdiction over cases in which the plaintiff was injured outside Montana. We decline to do so.

Montana courts have personal jurisdiction over BN under Montana law. FELA does not require states to entertain suits arising under it; it empowers them to do so where local law permits. Douglas (US 1929). BN has over 2,000 miles of track and more than 2,000 employees in Montana, maintains facilities in Montana, owns real estate in Montana, has a phone listing in Montana, and does direct advertising in Montana with Montana media. Each of these factors is significant in determining if general jurisdiction exists. Bedrejo (Mont. 1999). Although it alleges that its revenues from Montana represent less than 10% of its nationwide business, that alone does not defeat personal jurisdiction.Reed (Mont. 1982). Baugh recognized that BN “has way more than minimum contacts with the State of Montana. It is a significant, substantial, continuous and systematic business enterprise in Montana even though its operation in some of the 27 other states it operates in are far greater.” With that part of his opinion, we agree. Thus BN is “found within” the state under Rule 4(b)(1). Exercising personal jurisdiction also comports with the Due Process Clause. BN’s contention that it is not subject to personal jurisdiction in Montana courts is largely based on its incorrect interpretation of Daimler. In contrast, we have held that “the District Courts of Montana clearly have jurisdiction” to hear FELA cases. Labella (Mont. 1979). We have also followed federal case law in giving FELA a liberal construction to accomplish its humanitarian and remedial purposes. Davis (Mont. 1997). This is especially true as to a plaintiff’s forum selection, “even if choice of forum involves forum shopping.” BNRR (Mont. 1995). Our own precedent is consistently clear and consonant with the USSC’s interpretation of §56. Labella explained:

The policy of the State of Montana is clearly announced in the State Constitution. “Courts of justice shall be open to every person, and speedy remedy afforded for every injury to person, property, or character.” 1972 Mont. Const., Art. II, § 16. This constitutional right is unrestricted by reference to residence or citizenship. Indeed, such qualification could not pass muster under the Privileges and Immunities Clause of Art. IV, § 2 of the United States Constitution.

If Montana courts have personal jurisdiction over BN for FELA cases brought by Montana residents, they necessarily must have personal jurisdiction over BN for FELA cases brought by nonresidents.

Moses’s order denying BN’s motion to dismiss Tyrrell’s complaint is affirmed. Baugh’s order granting BN’s motion to dismiss Nelson’s complaint is reversed.

Shea, McGrath, Cotter, Baker, Wheat, Rice.

McKinnon dissented: The USSC has made clear twice in the last 5 years that a state court may assert general jurisdiction over a foreign corporation under the Due Process Clause “only when the corporation’s affiliations with the State in which suit is brought are so constant and pervasive `as to render it essentially at home in the forum State.”’Daimler (US 2014); Brown (US 2011). It has made equally clear that merely “engaging in a substantial, continuous, and systematic course of business” with the forum State is insufficient by itself for general jurisdiction, and that such a formulation would be “unacceptably grasping.” The reasons that the Majority gives for disregarding the USSC’s “at home” formulation and adopting the “doing business” standard are unpersuasive. There is no dispute that BN’s affiliations with Montana are not so substantial as to render it essentially “at home” in Montana. There is nothing exceptional about its contacts with Montana that would permit general jurisdiction. Nor did Congress confer personal jurisdiction with the passage of 45 USC 56. It is a venue statute for the federal courts, not a grant of personal jurisdiction to state courts. Kepner (US 1941). Even if it does confer personal jurisdiction, it surely does not confer it to state courts; by its plain language, it applies only to “court[s] of the United States.” Seizing on its subsequent language that allows for “concurrent jurisdiction” with the several states, the Majority persists that this grants state courts personal jurisdiction. However, “concurrent jurisdiction” is a term of art long employed by Congress and courts to refer to subject jurisdiction, not personal jurisdiction, as the USSC has repeatedly interpreted it in §56. In sum, the Due Process Clause, which provides that “no State shall … deprive any person of life, liberty, or property, without due process of law,” prohibits a state court from exercising general jurisdiction over a nonresident defendant unless its contacts are so pervasive as to render the defendant essentially “at home” in the state. Daimler.

Tyrrell v. BNSF; Nelson v. BNSF; DA 14-825, argued 12/9/15, decided 5/31/16.

Fredric Bremseth & Christopher Moreland (Bremseth Law Firm), Minnetonka, Minn., for Tyrrell; Robert Fain, Billings, for Nelson; Jeff Hedger, Michelle Friend, and Jesse Myers (Hedger Friend), Billings, Randy Cox & Scott Stearns (Boone Karlberg), Missoula, Chad Knight & Cash Parker (Hall & Evans), Denver, and Anthony Nicastro & Jaclyn Laferriere (Hall & Evans), Billings, for BN; Daniel Hoven (Browning, Kaleczyc, Berry & Hoven), Helena, for Amicus Montana Chamber of Commerce (supporting BN’s position).