59 RI Bar J., No. 8, Pg. 11. Express Consent by Registration: A Personal Jurisdiction Reminder.

• Author: Kevin N. Rolando, Esq. Gunning and LaFazia, Inc., Warwick

Rhode Island Bar Journal

Volume 59.

59 RI Bar J., No. 8, Pg. 11.

Express Consent by Registration: A Personal Jurisdiction Reminder

Rhode Island Bar Journal59 RI Bar J., No. 8, Pg. 11September / October 2011Express Consent by Registration: A Personal Jurisdiction ReminderKevin N. Rolando, Esq. Gunning and LaFazia, Inc., Warwick Trained to focus upon the complex, we often overlook the simpler, the more obvious. Consider the jurisprudential web of personal jurisdiction. One noted jurist, borrowing from Winston Churchill, likened it to "a riddle wrapped in a mystery inside an enigma."(fn1) Personal jurisdiction immediately brings to mind such oft-repeated expressions as minimum contacts, purposeful availment, or traditional notions of fair play and substantial justice. All, of course, derive from the due-process minimum-contacts test developed in the 1945 United States Supreme Court decision International Shoe v. Washington and its progeny, a line of cases engrained into each lawyer's consciousness in the first year of law school and internally juggled from thereafter. In brief, the test involves a mixed question of law and fact to determine whether the aggregate of an out-of-state defendant's "conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there."(fn2)

Often forgotten, however, (if indeed it was taught at all) is a separate, much less intricate, though much more controversial, method of establishing personal jurisdiction over a foreign corporate defendant: that such a corporation may be subject to the general personal jurisdiction of a given forum simply when it has registered to do business and/or registered an agent for service of process there in compliance with the state's statutory requirements - even where that registration is the corporation's only contact with the forum.

This doctrine, best designated as express consent by registration, shares a common ancestor to the minimum-contacts jurisprudence, but developed along a parallel, much less celebrated, evolution. Neither theory depends upon the other, nor does one necessarily exclude the other. A favorable result under either premise, of course, provides the plaintiff with the same prize: the ability to hale a foreign corporation into his or her preferred jurisdiction. Yet the question of express consent by registration, if it can be answered in the affirmative, obviates at least the need to travel down the more complicated avenue of a minimum-contacts analysis. In the advice of their clients, therefore, it is important for plaintiff's counsel and corporate counsel alike to be reminded of the possibility of express consent by registration.

As with all questions of personal jurisdiction, consent is the primary issue. Indeed, a defendant cannot be subjected to a forum's jurisdiction unless a court can cognize some constitutionally sufficient present or previous effort on the part of that defendant to be there. First, consider physical presence in the forum. When crossing into a given state, a person has subjected himself or herself to that jurisdiction's laws and may, while venturing within its borders, properly be served with suit and brought before its courts.(fn3) Or, consider the minimum-contacts test. If a foreign corporation, while not physically present in a given state, does so often interact there its forum contacts are deemed so "continuous, purposeful, and systematic" that constitutional principles of due process permit that forum's courts to imply the corporation's consent to personal jurisdiction.(fn4) It is therefore important to distinguish the minimum-contacts test as a tool by which a court may impose personal jurisdiction over an otherwise non-consenting defendant. It is necessary only when a foreign corporation's consent to jurisdiction must be implied. Thus, it is best designated as implied consent by minimum contacts, as distinct from express consent by registration.

An additional situation, this express consent by registration, concerns us here. When a foreign corporation has no physical presence in the...