The Segregated Account of Ambac Assurance Corporation v. Countrywide Home Loans, Inc. , 376 Wis. 2d 528 ( 2017 )

2017 WI 71
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1493
COMPLETE TITLE: The Segregated Account of Ambac Assurance
Corporation (the "Segregated Account") and Ambac
Assurance Corporation ("Ambac"),
Plaintiffs-Appellants,
v.
Countrywide Home Loans, Inc.,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 788, 882 N.W.2d 871
(2016 – Unpublished)
OPINION FILED: June 30, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 28, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Peter Anderson
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING: KELLY, J. did not participate.
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Thomas M. Pyper, Lisa M. Lawless, and Husch Blackwell
LLP, Madison, with whom on the briefs were Joseph M. McLaughlin
and Simpson Thacher & Bartlett LLP, New York. Oral argument by
Joseph M. McLaughlin.
For the plaintiffs-appellants, there was a brief filed by
Erik H. Monson, Karen M. Gallagher, and Coyne, Schultz, Becker &
Bauer, S.C., Madison, with whom on the brief were Barbara A.
Neider, Jeffrey A. Mandell, and Stafford Rosenbaum LLP, Madison.
Oral argument by Barbara A. Neider.
An amicus curiae brief was filed on behalf of Civil
Procedure Law Professors by John Franke and Gass Weber Mullins
LLC. Oral argument by John Franke.
An amicus curiae brief was filed on behalf of Wisconsin
Manufacturers and Commerce Association and The Chamber of
Commerce of the United States of America by Kevin M. St. John
and Bell Giftos St. John LLC, Madison, with whom on the brief
were Daniel Domenico and Kittredge LLC, Denver.
An amicus curiae brief was filed on behalf of The Coalition
for Litigation Justice by Kathryn A. Keppel and Gimbel, Reilly,
Guerin & Brown LLP, Milwaukee.
2
2017 WI 71
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1493
(L.C. No. 2014CV3511)
STATE OF WISCONSIN : IN SUPREME COURT
The Segregated Account of Ambac Assurance
Corporation (the "Segregated Account") and
Ambac Assurance Corporation ("Ambac"), FILED
Plaintiffs-Appellants,
JUN 30, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Countrywide Home Loans, Inc. ("Countrywide"),
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 REBECCA GRASSL BRADLEY, J. This case implicates the
authority of Wisconsin courts to exercise general jurisdiction
over a foreign corporation. Countrywide Home Loans, Inc.
petitioned this court for review of an unpublished decision of
the court of appeals,1 which held that Countrywide consented to
general personal jurisdiction in Wisconsin when it appointed a
1
Segregated Account of Ambac Assurance Corp. v. Countrywide
Home Loans, Inc., No. 2015AP1493, unpublished slip op. (Wis. Ct.
App. June 23, 2016) (per curiam).
No. 2015AP1493
registered agent pursuant to Wis. Stat. § 180.1507 (2015-16).2
Because the text of § 180.1507 does not even mention
jurisdiction, much less consent, Countrywide's compliance with
the statute does not, on its own, confer jurisdiction. We
therefore hold that compliance with § 180.1507 does not subject
Countrywide to general jurisdiction in Wisconsin; accordingly,
we reverse the decision of the court of appeals and remand the
matter to the court of appeals for further proceedings
consistent with this opinion.3
I. BACKGROUND
¶2 Countrywide is a New York corporation with its
principal place of business in California. Prior to the Great
Recession, Countrywide was a leading home mortgage loan insurer,
but its home mortgage activity ended after the housing market
collapsed. Authorized to do business in Wisconsin since 1986,
Countrywide appointed CT Corporation System, a Wisconsin
corporation, as its registered agent for service of process in
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3
In the court of appeals, Ambac and the Segregated Account
raised two additional issues: (1) whether Countrywide consented
to personal jurisdiction by appearing in rehabilitation
proceedings in Wisconsin; and (2) whether Countrywide is subject
to personal jurisdiction under Wisconsin's long-arm statute,
Wis. Stat. § 801.05(1). The court of appeals did not address
these other issues because it reversed the circuit court's
decision based on the consent to general jurisdiction argument
raised by Ambac and the Segregated Account. Consequently, we
remand the matter so the court of appeals can decide these
unresolved issues.
2
No. 2015AP1493
2014. Prior to commencement of this action, Countrywide did not
maintain any offices, employees, or business presence within the
state.
¶3 Ambac Assurance Corporation is a Wisconsin corporation
with its principal place of business in New York. As an insurer
of financial instruments, Ambac issued polices in 2005 insuring
against losses stemming from residential mortgage-backed
securities containing Countrywide mortgage loans. Neither the
policies nor the contracts were negotiated in Wisconsin, but the
underlying securities did include mortgage loans made to
Wisconsin residents and secured by property here. When many of
the mortgage loans underlying the securities defaulted during
the Great Recession, the policies obligated Ambac to pay claims
worth hundreds of millions of dollars. Because of Ambac's
significant liabilities under the policies, the Wisconsin
Commissioner of Insurance approved a plan in March 2010
establishing the Segregated Account of Ambac Assurance
Corporation. Ambac transferred its policies into the Segregated
Account, which now owns the policies. The Segregated Account
entered statutory rehabilitation pursuant to Wis. Stat.
§§ 645.31-32,4 and rehabilitation proceedings remain ongoing.5
4
For helpful background on rehabilitation proceedings, see
generally Nickel v. Wells Fargo Bank, 2013 WI App 129, ¶¶12-15,
351 Wis. 2d 539, 841 N.W.2d 482.
5
In re Rehabilitation of Segregated Account of Ambac
Assurance Corp., No. 2010CV1576 (Dane Cty. Cir. Ct.). Appeals
related to the rehabilitation proceedings have generated
published opinions by this court and the court of appeals. In
(continued)
3
No. 2015AP1493
¶4 Ambac and the Segregated Account6 filed this suit
against Countrywide in December 2014 and served CT Corporation
System with the summons and complaint in January 2015. The
complaint alleged that Ambac incurred substantial liability
under the insurance policies only because Countrywide
fraudulently misrepresented the quality of the mortgages
underlying the securities.7 Countrywide moved to dismiss the
complaint for lack of personal jurisdiction. Ambac opposed the
motion, arguing that Countrywide consented to general
jurisdiction in Wisconsin when it appointed a registered agent
under Wis. Stat. §§ 180.1507 and 180.1510.
¶5 Dismissing the complaint for lack of personal
jurisdiction, the Dane County Circuit Court8 concluded that
Wisconsin courts cannot exercise general jurisdiction over
Countrywide.9 The circuit court reasoned that "merely having a
re Rehabilitation of Segregated Account of Ambac Assurance
Corp., 2012 WI 22, 339 Wis. 2d 48, 810 N.W.2d 450; Nickel, 351
Wis. 2d 539.
6
To facilitate readability, we will refer to Ambac and the
Segregated Account collectively as "Ambac" for the remainder of
the opinion.
7
Ambac also filed suit against Countrywide in New York for
alleged fraudulent representations regarding residential
mortgage-backed securities.
8
The Honorable Peter C. Anderson presiding.
9
The circuit court also rejected Ambac's arguments that
Countrywide consented to personal jurisdiction by appearing in
the rehabilitation proceedings and that Wisconsin's long-arm
statute, Wis. Stat. § 801.05(1), allowed the court to exercise
specific jurisdiction over Countrywide.
4
No. 2015AP1493
registered agent and merely having . . . one or two foreclosure
actions [does] not make you a resident of this state in the same
sense that [anyone] . . . from Wisconsin could be sued in
Wisconsin and could not be heard to complain." Absent explicit
contractual consent, the court determined that "the registered
agent and the very modest participation in foreclosure
proceedings at the time of the filing . . . would not sustain
jurisdiction under [Daimler AG v. Bauman, 134 S. Ct. 746
(2014)]."
¶6 Ambac appealed, and the court of appeals reversed.
Segregated Account of Ambac Assurance Corp. v. Countrywide Home
Loans, Inc., No. 2015AP1493, unpublished slip op. (Wis. Ct. App.
June 23, 2016) (per curiam). Quoting language from this court's
decisions in Punke v. Brody, 17 Wis. 2d 9, 115 N.W.2d 601
(1962), and Hasley v. Black, Sivalls & Bryson, Inc., 70
Wis. 2d 562, 235 N.W.2d 446 (1975), the court of appeals held
that appointing a registered agent for service of process
constituted consent to general jurisdiction in Wisconsin.
Segregated Account, unpublished slip op., ¶¶11-13. It therefore
agreed with Ambac that, "by maintaining a Wisconsin agent to
receive service of process . . . , Countrywide 'subjected'
itself to the 'general jurisdiction' of Wisconsin courts, and
actually consented to personal jurisdiction." Id., ¶9. The
court of appeals rejected Countrywide's argument that the
Supreme Court's Daimler decision either directly or indirectly
undermined Punke and Hasley. Id., ¶¶18-20. Countrywide filed a
petition for review, which we granted.
5
No. 2015AP1493
II. STANDARD OF REVIEW
¶7 Whether Wisconsin courts have personal jurisdiction
over a foreign corporation is a question of law we review de
novo, although we benefit from the analyses of the circuit court
and court of appeals. Rasmussen v. Gen. Motors Corp., 2011 WI
52, ¶14, 335 Wis. 2d 1, 803 N.W.2d 623 (first citing Kopke v. A.
Hartrodt S.R.L., 2001 WI 99, ¶10, 245 Wis. 2d 396, 629
N.W.2d 662; then citing State v. Aufderhaar, 2005 WI 108, ¶10,
283 Wis. 2d 336, 700 N.W.2d 4).
III. DISCUSSION
A. Personal Jurisdiction over Corporations
¶8 A brief review of personal jurisdiction doctrine
places our statutory interpretation question in the appropriate
context. Shortly after the adoption of the Fourteenth Amendment
to the United States Constitution, the Supreme Court decided
Pennoyer v. Neff, 95 U.S. 714 (1878), which tied personal
jurisdiction to a defendant's presence within the forum state.
At the time, service of process on a defendant within the forum
cemented personal jurisdiction. Id. at 722-24. This
territorial approach, however, limited jurisdiction over
corporations; because corporations were not people, their
"presence" within a forum state was statutorily defined by the
legislature. In most forums, corporations were subject to suit
only if incorporated in that state. Cf. State ex rel. Drake v.
Doyle, 40 Wis. 175, 197 (1876) ("The corporation, being the mere
creation of local law, can have no legal existence beyond the
limits of the sovereignty where created." (quoting Paul v.
6
No. 2015AP1493
Virginia, 75 U.S. (8 Wall.) 168, (1869))); see also Bank of
Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839) ("[A]
corporation can have no legal existence out of the boundaries of
the sovereignty by which it is created. It exists only in
contemplation of law, and by force of the law; and where that
law ceases to operate, and is no longer obligatory, the
corporation can have no existence.").
¶9 Consequently, foreign corporations could be immune
from suit, even if they carried out significant operations
within a state. Registration statutes thus arose in part to
permit the exercise of jurisdiction over foreign corporations.
See Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 408-09
(1929) ("The purpose of state statutes requiring the appointment
by foreign corporations of agents upon whom process may be
served is primarily to subject them to the jurisdiction of local
courts in controversies growing out of transactions within the
State."). The corporation's in-state agent satisfied Pennoyer's
local presence requirement, and some courts discovered an
implicit "consent" to personal jurisdiction within the
appointment of the agent. See Burnham v. Super. Ct. of Cal.,
495 U.S. 604, 617-18 (1990) (plurality).
¶10 In 1945, however, the Supreme Court decided
International Shoe Co. v. Washington, 326 U.S. 310 (1945),
dispensed with the "purely fictional" notions of implied consent
and presence-by-agent, and redirected personal jurisdiction
doctrine away from the territorial approach that prevailed under
Pennoyer. Burnham, 495 U.S. at 618 (plurality). Two categories
7
No. 2015AP1493
of personal jurisdiction have emerged since then. A corporation
may be subject to personal jurisdiction in a forum state under a
theory of "specific jurisdiction" if it has "certain minimum
contacts with [the forum] such that the maintenance of the suit
does not offend 'traditional notions of fair play and
substantial justice.'" Int'l Shoe, 326 U.S. at 316 (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Exercise of
specific jurisdiction requires a nexus between the defendant's
activities in the state and the suit against it. Availability
of specific jurisdiction obviates the need for states to use
registration statutes to secure personal jurisdiction over
foreign corporations' activities.
¶11 By contrast, a state may exercise "general
jurisdiction" over a corporation if its "continuous corporate
operations within [the] 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."
Id. at 318; see also Helicopteros Nacionales de Colum., S.A. v.
Hall, 466 U.S. 408, 414 n.8 (1984). If a defendant is subject
to general jurisdiction in a forum, it may be sued there even in
the absence of any relationship between the litigation and the
defendant's contacts with the state. In recent years, the
Supreme Court clarified the limits the Fourteenth Amendment's
Due Process Clause places on the scope of general jurisdiction:
"A court may assert general jurisdiction over
foreign . . . corporations to hear any and all claims against
them when their affiliations with the State are so 'continuous
8
No. 2015AP1493
and systematic' as to render them essentially at home in the
forum State." Daimler, 134 S. Ct. at 754 (alteration omitted;
emphasis added) (quoting Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 U.S. 915, 919 (2011)). Critically, a
corporation's "in-state business" sufficient to support a forum
state's exercise of specific personal jurisdiction "does not
suffice to permit the assertion of general jurisdiction over
claims . . . that are unrelated to any activity occurring in"
the forum state. BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1559
(2017).
¶12 "With respect to a corporation, the place of
incorporation and principal place of business are
'paradig[m] . . . bases for general jurisdiction'" because they
are "unique" and "easily ascertainable." Daimler, 134 S. Ct. at
760 (alterations in original) (quoting Goodyear, 564 U.S. at
924). In corralling "exorbitant exercises of all-purpose
jurisdiction," the Supreme Court recognized the value in having
a "clear and certain forum in which a corporate defendant may be
sued on any and all claims." Id. at 760-61. Identifying "at
least one" definite forum where corporate defendants are subject
to general jurisdiction benefits plaintiffs but also enables
defendants "to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them
liable to suit." Id. at 760-62 (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)).
9
No. 2015AP1493
B. Appointment of a Registered Agent in Wisconsin
¶13 The question before this court is whether compliance
with Wis. Stat. § 180.1507, without more, constitutes consent to
general jurisdiction in Wisconsin. Interpretation of this
statute is a matter of first impression. As always, "statutory
interpretation begins with the language of the statute." State
ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 663, 681 N.W.2d 110, 124 (internal quotation mark
omitted) (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis. 2d 211, 612 N.W.2d 659). We give statutory text its
"common, ordinary, and accepted meaning." Id. Because both
context and structure are "important to meaning," we interpret
statutory text "in the context in which it is used; not in
isolation but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46.
¶14 To conduct business in Wisconsin, foreign corporations
must comply with certain registration and appointment
requirements. Among other conditions found in Chapter 180, Wis.
Stat. § 180.1507 requires that "[e]ach foreign corporation
authorized to transact business in this state shall continuously
maintain in this state a registered office and registered
agent."10 Ambac now argues that appointment of a registered
agent under § 180.1507 amounts to consent to general
10
Wisconsin Stat. § 180.1507 also specifies characteristics
of permissible registered agents, which we need not reproduce.
10
No. 2015AP1493
jurisdiction. In support of its position, Ambac points out that
Wis. Stat. § 180.1510(1) designates a foreign corporation's
registered agent as the corporation's agent for service of
process.11
¶15 We disagree with Ambac's interpretation. Consent to
general jurisdiction cannot be read into Wis. Stat. §§ 180.1507
and 180.1510 without "expand[ing] the meaning of the statute[s]
to the point that we engage in rewriting the statute[s], not
merely interpreting [them]." State v. Briggs, 214 Wis. 2d 281,
288, 571 N.W.2d 881 (Ct. App. 1997). We will not rewrite the
statute to create jurisdiction where the legislature has not.
The text of Wis. Stat. § 180.1507 is devoid of any language
regarding either consent or jurisdiction. Section 180.1507
merely requires that every foreign corporation authorized to do
business in Wisconsin maintain a registered office and
registered agent in the state. Subsections (1) through (3) then
describe the persons and entities eligible to serve as
registered agents. The language is straightforward, and none of
the words——independently or taken together——suggest consent to
jurisdiction.12 Because Chapter 180 in no way telegraphs that
11
Wisconsin Stat. § 180.1510(1) provides, in full: "Except
as provided in subs. (2) and (3), the registered agent of a
foreign corporation authorized to transact business in this
state is the foreign corporation's agent for service of process,
notice or demand required or permitted by law to be served on
the foreign corporation."
12
Because the meaning of Wis. Stat. §§ 180.1507 and
180.1510 is clear, we do not consider the legislative history
and model act materials that Ambac brings to our attention.
11
No. 2015AP1493
registration equals consent to general jurisdiction, a foreign
corporation would be understandably surprised to learn, perhaps
before it even conducts any business here, that registration
automatically subjects it to being hauled into a Wisconsin court
in a case having no connection whatsoever to Wisconsin.
¶16 Wisconsin Stat. § 180.1510(1) does mention "service of
process"——a term generally associated with the initiation of a
lawsuit——but service of process is an act distinct from the
grounds necessary to confer general jurisdiction.13 A registered
agent's role is to receive service of process, notice, or demand
on behalf of a foreign corporation, and the agent's mere receipt
of process does not empower Wisconsin courts to exercise either
specific or general personal jurisdiction without compromising
the due process rights of the foreign corporation. The fact
that Wis. Stat. § 180.1510(1) assigns the registered agent
responsibility to receive process therefore cannot transform
appointment of an agent under Wis. Stat. § 180.1507 into consent
to general jurisdiction. To conclude differently would
resurrect the "purely fictional" notions of "implied consent"
and "presence" associated with designated agents during a bygone
era when foreign corporations would otherwise elude justice in
proper forums. That period of time has passed, and those
13
See Wis. Stat. § 801.11 (grounds for personal
jurisdiction are a prerequisite to its exercise, implying that
the basis for personal jurisdiction over a foreign corporation
exists independently from the means by which the plaintiff
effects service).
12
No. 2015AP1493
defunct concepts were appropriately discarded, having been
superseded by long-arm statutes.
¶17 Adopting Ambac's interpretation of Wis. Stat.
§§ 180.1507 and 180.1510(1) as effecting consent to general
jurisdiction would render Wisconsin's long-arm statute
superfluous with respect to all foreign corporations authorized
to transact business in this state——the very entities the long-
arm statute was designed to reach:
[T]he objective of the statute was to give citizens of
Wisconsin the right to make use of the courts of this
state in instituting causes of action against any
foreign corporation, which actually is carrying on
business activities within the state, subject only to
such limitations as are imposed by the United States
constitution.
Vt. Yogurt Co. v. Blanke Baer Fruit & Flavor Co., 107
Wis. 2d 603, 609-10, 321 N.W.2d 315 (Ct. App. 1982) (emphasis
added; original emphasis omitted) (quoting Huck v. Chi.,
St. Paul, Minneapolis & Omaha Ry., 4 Wis. 2d 132, 137, 90
N.W.2d 154 (1958)). In interpreting the scope of the long-arm
statute, Wisconsin courts have long recognized that "[t]his
state does not have the same interest in providing a forum for
nonresidents whose injuries by nonresidents have no connection
to this state as it does in protecting its residents from
nonresidents doing business here." Id. at 612 (emphasis added).
The long-arm statute reaches foreign corporations doing business
in Wisconsin, which are required to register an agent for
service of process. If such registration were sufficient to
expose foreign corporations to general, all-purpose jurisdiction
13
No. 2015AP1493
of Wisconsin courts, the long-arm statute would effectively
serve no purpose. "Statutory interpretations that render
provisions meaningless should be avoided." Belding v. Demoulin,
2014 WI 8, ¶17, 352 Wis. 2d 359, 843 N.W.2d 373; accord Kalal,
271 Wis. 2d 633, ¶46; State ex rel. Smith v. City of Oak Creek,
139 Wis. 2d 788, 796, 407 N.W.2d 901 (1987); Harrington v.
Smith, 28 Wis. 43, 67 (1871); see also Antonin Scalia & Bryan A.
Garner, Reading Law 174-79 (2012) ("[A statute] should [not]
needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence.").
¶18 Wisconsin Stat. § 801.05(1)(d) gives Wisconsin courts
personal jurisdiction over a defendant "engaged in substantial
and not isolated activities within this state, whether such
activities are wholly interstate, intrastate, or otherwise."
But if we equate appointment of a registered agent under Wis.
Stat. § 180.1507 with consent to general jurisdiction, Wisconsin
courts would not need to establish grounds for specific
jurisdiction under Wis. Stat. § 801.05(1)(d), except with
respect to foreign corporations prohibited from transacting
business in this state under Wis. Stat. § 180.1501——entities the
long-arm statute is unlikely to reach.14 A foreign corporation's
14
See, e.g., Rasmussen v. Gen. Motors. Corp., 2011 WI 52,
¶44, 335 Wis. 2d 1, 803 N.W.2d 623 (declining to impute
subsidiary's substantial and not isolated activities in
Wisconsin to foreign parent company); Vt. Yogurt Co. v. Blanke
Baer Fruit & Flavor Co., 107 Wis. 2d 603, 605-06, 613, 321
N.W.2d 315 (Ct. App. 1982) (declining to exercise jurisdiction
over defendant where "the dispute between the parties had [no]
connection to this state" and defendant was "not licensed to do
(continued)
14
No. 2015AP1493
contacts with Wisconsin would be irrelevant so long as it
registered an agent for service of process——which all foreign
corporations authorized to transact business in this state must
do.15 We will not interpret Wis. Stat. §§ 180.1507 and
180.1510(1) in a manner that makes the long-arm statute "idle and
nugatory." Scalia & Garner, supra, at 174 (internal quotation
mark omitted) (quoting Thomas M. Cooley, A Treatise on the
Constitutional Limitations Which Rest upon the Legislative Power
of the States of the American Union 58 (1868)).16
business in Wisconsin"). But see, e.g., Capitol Fixture &
Woodworking Grp. v. Woodma Distribs., Inc., 147 Wis. 2d 157,
159-63, 432 N.W.2d 647 (Ct. App. 1988) (holding that Wis. Stat.
§ 801.05(5)(e), which confers jurisdiction in any action that
relates to goods received by plaintiff in Wisconsin from
defendant, conferred jurisdiction over defendant, despite
argument that Wisconsin lacked jurisdiction under Wis. Stat.
§ 801.05(1)(d) because defendant was "not licensed to do
business in Wisconsin").
15
See Brown v. Lockheed Martin Corp., 814 F.3d 619, 636 (2d
Cir. 2016) ("[I]f the mere maintenance of a registered agent to
accept service under [Connecticut's registration statute]
effected an agreement to submit to general jurisdiction, it
seems to us that the specific jurisdiction provisions of the
long-arm statute . . . wouldn't be needed except with regard to
unregistered corporations: Registered corporations would be
subject to jurisdiction with regard to all matters simply by
virtue of process duly served on its appointed agent.").
16
We also recognize the perverse incentive created by
reading consent into the registered agent statute. A foreign
corporation could elect non-compliance with Chapter 180 in order
to evade the general jurisdiction of Wisconsin courts, while a
fully compliant foreign corporation would expose itself to suits
having nothing whatsoever to do with Wisconsin. If registering
an agent for service of process is tantamount to consent to
general, all-purpose jurisdiction, foreign corporations that
(continued)
15
No. 2015AP1493
¶19 Ambac also relies on Wis. Stat. § 180.1505(2), under
which a corporation certified to do business in Wisconsin "has
the same but no greater rights and has the same but no greater
privileges as, and . . . is subject to the same duties,
restrictions, penalties and liabilities . . . imposed on, a
domestic corporation of like character." Ambac argues that
because foreign corporations "enjoy[] the privilege of using the
Wisconsin courts and [are] placed on equal footing with domestic
companies," § 180.1505(2) operates with Wis. Stat. §§ 180.1507
and 180.1510(1) to imply that certified foreign corporations
consent to personal jurisdiction in Wisconsin for any claim,
regardless of the claim's relationship to the state.
¶20 Once again, Ambac disengages from the plain language
of Chapter 180. Like Wis. Stat. §§ 180.1507 and 180.1510(1),
Wis. Stat. § 180.1505(2) mentions neither consent nor
jurisdiction; thus, its plain language undermines Ambac's
argument.17 It is too great a leap to characterize consent to
comply with our laws would be penalized for doing so. See
Genuine Parts Co. v. Cepec, 137 A.3d 123, 140-41 (Del. 2016).
17
Because the dissent faults our discussion of Wis. Stat.
§ 180.1507 in conjunction with Wis. Stat. §§ 180.1510(1),
180.1505(2), and 801.05(1)(d) for purportedly "employ[ing] a
misguided framework of statutory interpretation" that places
§ 180.1507 "in isolation from the wider embrace of the statutory
scheme," dissent, ¶36, we pause to note the appropriate role of
the "whole-text" canon for using context to assess the meaning
of statutory language:
Properly applied, it typically establishes that only
one of the possible meanings that a word or phrase can
(continued)
16
No. 2015AP1493
general jurisdiction as a "duty" imposed on every foreign
corporation that registers to do business in Wisconsin,
particularly where the actual statutory language offers no
warning that exposure to suits in Wisconsin for claims arising
elsewhere is a consequence of registration.
¶21 Treating general jurisdiction as a "duty" of domestic
corporations that extends to all registered foreign corporations
by default would extend Wisconsin's exercise of general
jurisdiction beyond the tapered limits recently described by the
Supreme Court. Because the Due Process Clause of the Fourteenth
Amendment controls the circumstances under which a state may
exercise personal jurisdiction, we must consider the due process
implications of exercising jurisdiction over a foreign
corporation. This court generally avoids interpreting statutes
in a way that places their constitutionality in question. Blake
v. Jossart, 2016 WI 57, ¶27, 370 Wis. 2d 1, 884 N.W.2d 484
bear is compatible with use of the same word or phrase
elsewhere in the statute; or that one of the possible
meanings would cause the provision to clash with
another portion of the statute. It is not a proper
use of the canon to say that since the overall purpose
of the statute is to achieve x, any interpretation of
the text that limits the achieving of x must be
disfavored. . . . [L]imitations on a statute's reach
are as much a part of the statutory purpose as
specifications of what is to be done.
Antonin Scalia & Bryan A. Garner, Reading Law 168 (2012). As we
have made clear, there is no ambiguity of meaning for context to
clarify in Wis. Stat. § 180.1507 because that section mentions
neither consent nor jurisdiction, and we will not concoct
meaning from "context" where the legislature has not spoken.
17
No. 2015AP1493
("[I]f any doubt exists about the statute's constitutionality,
the court must resolve that doubt in favor of upholding the
statute." (citations omitted)), cert. denied, 137 S. Ct. 669
(2017); accord State ex rel. Hammermill Paper Co. v. La Plante,
58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973); see also Scalia &
Garner, supra, at 247-51 ("A statute should be interpreted in a
way that avoids placing its constitutionality in doubt.").
¶22 In Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915 (2011), the Supreme Court addressed the proper
scope of general jurisdiction within the bounds of due process,
holding that a corporation may be subject to general
jurisdiction only in a forum where it "is fairly regarded as at
home." Id. at 924. In Daimler, the Court later clarified the
circumstances under which a corporation has sufficiently
continuous and systematic contacts to be "at home" in a forum
state. Rather than focusing "solely on the magnitude of the
defendant's in-state contacts," a court must conduct "an
appraisal of a corporation's activities in their entirety,
nationwide and worldwide," because "[a] corporation that
operates in many places can scarcely be deemed at home in all of
them." 134 S. Ct. at 762 n.20 (quoting id. at 767 (Sotomayor,
J., concurring)). A forum state denies defendants due process
of law if it "subject[s] foreign corporations to general
jurisdiction whenever they have an in-state subsidiary or
affiliate." Id. at 759-60. Within this framework, the Daimler
Court explained that "Goodyear did not hold that a corporation
may be subject to general jurisdiction only in a forum where it
18
No. 2015AP1493
is incorporated or has its principal place of business; it
simply typed those places paradigm all-purpose forums." Id. at
760.
¶23 Courts in other jurisdictions have recognized that
Goodyear and Daimler strictly confine the exercise of general
jurisdiction over foreign corporations within the bounds of due
process. In a comprehensive opinion reversing its own
precedent, which previously held that appointment of an agent
for service of process conferred general jurisdiction over a
foreign corporation,18 the Delaware Supreme Court reconsidered
Delaware's registration statute in light of the altered due
process framework:
Our duty is to construe a statute of our state in
a manner consistent with the U.S. Constitution, when
it is possible to do so with no violence to its plain
meaning. Nothing in the registration statutes
explicitly says that a foreign corporation registering
thereby consents to the personal jurisdiction of this
state. Nothing in the statutes explicitly says that
by having to register in order to "do any business in
this State, through or by branch offices, agents or
representatives located in this State," and to appoint
a registered agent in the state to receive service of
process, that meant a foreign corporation was waiving
any objection to personal jurisdiction for causes of
action not arising out of the conduct in Delaware that
gave rise to the registration requirement.
In light of Daimler, [Delaware's registration
statute] can be given a sensible reading by construing
it as requiring a foreign corporation to allow service
of process to be made upon it in a convenient way in
18
See Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988).
19
No. 2015AP1493
proper cases, but not as a consent to general
jurisdiction.
Genuine Parts Co. v. Cepec, 137 A.3d 123, 142 (Del. 2016)
(footnotes omitted) (quoting Del. Code Ann. tit. 8, § 371(b)).
In construing a Connecticut statute with language mirroring Wis.
Stat. § 180.1510's, the Second Circuit similarly observed that
[i]f mere registration and the accompanying
appointment of an in-state agent——without an express
consent to general jurisdiction——nonetheless sufficed
to confer general jurisdiction by implicit consent,
every corporation would be subject to general
jurisdiction in every state in which it registered,
and Daimler's ruling would be robbed of meaning by a
back-door thief.
Brown v. Lockheed Martin Corp., 814 F.3d 619, 640 (2d Cir.
2016).19
¶24 The shade of constitutional doubt that Goodyear and
Daimler cast on broad approaches to general jurisdiction informs
our assessment of this court's older cases. Ambac argues that
State ex rel. Aetna Ins. Co. v. Fowler, 196 Wis. 451, 220 N.W.
534 (1928), stands for the proposition that "appointing a
19
See also Wal-Mart Stores, Inc. v. LeMaire, ___ P.3d ___,
¶13, 2017 WL 1954809 (Ariz. Ct. App. 2017) ("Because the modern
doctrine of specific jurisdiction amply ensures that a state has
jurisdiction when a corporation's conduct allegedly causes harm
in that state, there is no need to base personal jurisdiction
solely upon a murky implication of consent to suit——for all
purposes and in all cases——from the bare appointment of an agent
for service."); State ex rel. Norfolk S. Ry. Co. v. Dolan, 512
S.W.3d 41, 46-47 (Mo. 2017) (en banc) ("The Supreme Court held
[in Daimler] that the mere conduct of . . . systematic and
continuous business activities in the state was not sufficient
to subject the corporation to general jurisdiction in the state
for all causes of action not related to that state.").
20
No. 2015AP1493
Wisconsin agent for service, without limiting the scope of such
agency, subjected foreign corporations to general personal
jurisdiction." The Aetna court held that
foreign insurance corporations are bound [by
statute] . . . to hold themselves amenable to the
jurisdiction of our courts for a cause of action which
may . . . be properly brought against them for a cause
of action arising outside of this state . . . , []
though the cause of action may not affect the property
of such insurance corporation.
196 Wis. at 457. The court cited Pennsylvania Fire Insurance
Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S.
93 (1917), in support of that holding. Importantly, the statute
at issue in Aetna was interpreted to require insurance
corporations to consent to jurisdiction by service of process on
the insurance commissioner, which "clearly put[] the foreign
insurance corporation[s] outside of the general foreign
corporation statute." Aetna, 196 Wis. at 457. Aetna does not
control our interpretation of Wisconsin's modern corporate
registration statute because Aetna interpreted a statute
regulating insurance corporations.
¶25 Significantly, the Daimler Court cautioned that
"cases . . . decided in the era dominated by Pennoyer's
territorial thinking should not attract heavy reliance today."
134 S. Ct. at 761 n.18 (citation omitted). Although the Supreme
Court never expressly overruled the Pennsylvania Fire decision
relied upon by the Aetna court,20 both cases reflect the
20
Recently, the Supreme Court specifically declined to
discuss consent to general personal jurisdiction in BNSF Ry. Co.
(continued)
21
No. 2015AP1493
reasoning of an era when states could not exercise jurisdiction
over a foreign corporation absent the appointment of an agent
for service of process. Because Aetna and Pennsylvania Fire
represent a disfavored approach to general jurisdiction, we
instead give preference to prevailing due process standards when
interpreting a contemporary statute for the first time.
¶26 Turning to this court's opinions in Punke and Hasley,
we begin by observing that neither case interpreted the
registered agent statute; therefore, like Aetna, they do not
control our interpretation of Wis. Stat. § 180.1507.
Furthermore, subjecting foreign corporations to general
jurisdiction wherever they register an agent for service of
process would reflect the "sprawling view of general
jurisdiction" rejected by the Supreme Court in Goodyear.
Daimler, 134 S. Ct. at 760 (quoting Goodyear, 564 U.S. at 929).
Accordingly, Ambac's and the court of appeals' heavy reliance on
language from these opinions is unfounded.
¶27 Importantly, Punke addressed whether an individual
could consent to personal jurisdiction in Wisconsin by
appointing an agent to accept service on his behalf. See Punke,
17 Wis. 2d at 13-14. But whether an individual consents to
personal jurisdiction by appointing an agent presents a
different question than whether a corporation's appointment of a
registered agent——as required by law——automatically subjects the
v. Tyrrell, 137 S. Ct. 1549, 1559 (2017), because the court
below had not addressed the issue.
22
No. 2015AP1493
corporation to general jurisdiction. We will not infer the
existence of implied consent to general jurisdiction in
Wisconsin's business corporations statutes from an opinion
basing consent to personal jurisdiction on an individual's
appointment of an agent to receive service of summons. Punke is
inapposite to this case.
¶28 Hasley, on the other hand, did explore whether
Wisconsin courts could exercise jurisdiction over a foreign
corporation, but "[i]t [was] agreed between the parties that
statutory personal jurisdiction over [the defendant] by the
Wisconsin trial court would adhere only under the 'long-arm'
statute." 70 Wis. 2d at 574. The court's analysis accordingly
focused on whether the nature, quality, and extent of the
defendant's contacts in Wisconsin satisfied the statutory basis
for asserting specific jurisdiction without offending due
process. Within the context of its due process analysis, the
Hasley court only surmised that "a defendant entity might be
subject to personal jurisdiction . . . by its consent evidenced
by appointment of an agent for service of process." Id. at 582
(emphasis added). The Hasley court's examination of whether
Wisconsin courts could exercise specific jurisdiction over the
foreign corporation did not consider consent to jurisdiction via
appointment of a registered agent or otherwise. Because consent
to jurisdiction by appointment of a registered agent arose only
as an aside when relaying International Shoe's rules governing
personal jurisdiction over corporations——and then only as a
possibility, rather than a certainty——Hasley does not control
23
No. 2015AP1493
our interpretation of Wis. Stat. § 180.1507. The court of
appeals erred in determining otherwise, particularly in light of
Daimler and Goodyear.
¶29 Ultimately, Aetna, Punke, and Hasley are unhelpful in
determining whether Countrywide's compliance with Wis. Stat.
§ 180.1507 is tantamount to consent to general jurisdiction in
Wisconsin. Notably, each of these cases predate the 1989
enactment of Chapter 180 and reflect outmoded jurisdictional
approaches that should not be fused with modern statutes,
particularly when such concepts are irreconcilable with the due
process rights of corporate defendants. Absent express
statutory language asserting general jurisdiction over a foreign
corporation based on its appointment of an agent for service of
process, we will not depart from the plain meaning of Wis. Stat.
§ 180.1507, which serves merely as a registration statute, not a
conferral of consent to general jurisdiction.
¶30 Finally, we note that our holding does not bar the
courtroom door to plaintiffs with claims against foreign
corporations. Under the doctrine of specific jurisdiction,
plaintiffs may seek relief from foreign corporations in
Wisconsin courts when a nexus exists between the cause of action
and the corporation's in-state activities. Indeed, we remand to
the court of appeals to consider whether Wisconsin courts may
exercise specific jurisdiction over Countrywide in this case.
But the Fourteenth Amendment's Due Process Clause restricts the
exercise of general jurisdiction over foreign corporations to
those cases in which the nature of a foreign corporation's
24
No. 2015AP1493
operations render it "at home" in this state. Because
Countrywide is incorporated and maintains its principal place of
business elsewhere, it is not "at home" in Wisconsin.
IV. CONCLUSION
¶31 We hold that appointing a registered agent under Wis.
Stat. § 180.1507 does not signify consent to general personal
jurisdiction. The statute's plain language does not mention
jurisdiction, and Ambac's proffered deviation from the text
would place the statute's constitutionality into doubt. Foreign
corporations principally operating outside of Wisconsin may
rightly be subject to suit in our courts for claims arising out
of their activities in this state, but the Supreme Court has
made clear that the Due Process Clause proscribes the exercise
of general jurisdiction over foreign corporations beyond
exceptional circumstances not present here.
By the Court.—The decision of the court of appeals is
reversed, and the cause remanded to the court of appeals.
¶32 DANIEL KELLY, J., did not participate.
25
No. 2015AP1493.awb
¶33 ANN WALSH BRADLEY, J. (dissenting). The majority's
reasoning evinces a misunderstanding of the concept of consent
to personal jurisdiction set forth both in Wisconsin statutes
and case law. Ambac, a Wisconsin plaintiff, filed a lawsuit in
its home state against a foreign corporation that is registered
to conduct business in Wisconsin and has assigned an agent to
receive service of process here.
¶34 Countrywide, a foreign corporation, has used Chapter
180 of the Wisconsin Statutes to file over one hundred
foreclosure lawsuits against Wisconsin homeowners in Wisconsin
courts. But now that the shoe is on the other foot, it contends
that Wisconsin courts no longer have jurisdiction under that
same chapter when lawsuits are filed against it. And, a
majority of this court agrees.
¶35 The majority concludes that "[b]ecause the text of
[Wis. Stat.] § 180.1507 does not even mention jurisdiction, much
less consent, Countrywide's compliance with the statute does
not, on its own, confer jurisdiction." Majority op., ¶1
(emphasis added). This myopic lens through which the majority
focuses gives rise to its folly.
¶36 I address two significant flaws upon which the
majority rests it conclusion. First, it employs a misguided
framework of statutory interpretation by examining a statute "on
its own." Majority op., ¶1. Individual statutes do not exist
in isolation from the wider embrace of the statutory scheme.
They must be examined in context. Second, the majority fails to
recognize the distinction between cases where general personal
1
No. 2015AP1493.awb
jurisdiction is conferred by consent and cases that looked
instead to contacts with a forum state to establish such
jurisdiction.
¶37 As did the court of appeals, I conclude that the
circuit court has general personal jurisdiction over Countrywide
in this action. Under Wisconsin's statutory scheme, Countrywide
consented to personal jurisdiction in Wisconsin when it
appointed a registered agent in order to accept service of
process pursuant to Wis. Stat. §§ 180.1507 and 180.1510(1).
Accordingly, I respectfully dissent.
I
¶38 At the center of the majority's plain language
analysis lies its search for the words "consent" or
"jurisdiction" in Wis. Stat. § 180.1507. Examining the statute
in isolation, the majority contends that "[a]bsent express
statutory language asserting general jurisdiction over a foreign
corporation based on its appointment of an agent for service of
process, we will not depart from the plain meaning of
§ 180.1507, which serves merely as a registration statute, not a
conferral of consent to general jurisdiction." Majority op.,
¶29.
¶39 Over and over, it repeats this plain language refrain.
See, e.g., Majority op., ¶15 ("The text of Wis. Stat. § 180.1507
is devoid of any language regarding either consent or
jurisdiction."); see also id. ("The language is straightforward,
and none of the words——independently or taken together——suggest
consent to jurisdiction."); Id., ¶20 ("Ambac disengages from the
2
No. 2015AP1493.awb
plain language of Chapter 180. Like Wis. Stat. §§ 180.1507 and
180.1510(1), Wis. Stat. § 180.1505(2) mentions neither consent
nor jurisdiction; thus, its plain language undermines Ambac's
argument.").
¶40 Indeed, the absence of the words "consent" or
"jurisdiction" proves to be a double-edged sword for the
majority. True, Wis. Stat. § 180.1507 does not expressly state
that consent to general personal jurisdiction is conferred. On
the other hand, it does not expressly negate it either, as do
some jurisdictions discussed below.1
¶41 By narrowing the scope of its search and focusing on
each statute in isolation, the majority misses the proverbial
forest for the trees. It is only by examining Wis. Stat.
§ 180.1507 in the context of the statutory scheme that we see
the full picture and can discern its plain meaning. State ex
rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶46, 271
Wis. 2d 633, 681 N.W.2d 110 ("[s]tatutory language is
interpreted in the context in which it is used . . . in relation
to the language of surrounding or closely-related
statutes . . . .").
¶42 Chapter 180, Wisconsin's Business Corporations Law,
governs foreign corporations conducting business in Wisconsin.
The first statutory requirement relevant to this analysis is set
forth in Wis. Stat. § 180.1501, which instructs that foreign
corporations conducting business in Wisconsin must obtain a
1
See infra, ¶18 n.8.
3
No. 2015AP1493.awb
certificate of authority.2 If a foreign corporation does not
obtain a certificate of authority, then it is unable to sue in
Wisconsin courts. Wis. Stat. § 180.1502(1).3
¶43 It is in this context that Wis. Stat. § 180.1507
requires that a foreign corporation "authorized to transact
business in this state shall continuously maintain in this state
a registered office and registered agent." Pursuant to Wis.
Stat. § 180.1510(1), a registered agent "is the foreign
corporation's agent for service of process, notice or demand
required or permitted by law to be served on the foreign
corporation."4 Even though neither § 180.1507 nor § 180.1510(1)
expressly contain the words "consent" or "jurisdiction," when
read together they plainly provide that when a foreign
corporation has a registered agent, among its acknowledged
functions is the receipt of the service of process (i.e. receipt
of a summons and complaint).
Wis. Stat. § 180.1501(1) provides: "A foreign corporation
2
may not transact business in this state until it obtains a
certificate of authority from the department."
3
Wis. Stat. § 180.1502(1) provides: "A foreign corporation
transacting business in this state without a certificate of
authority, if a certificate of authority is required under s.
180.1501, may not maintain a proceeding in any court in this
state until it obtains a certificate of authority."
4
Wis. Stat. § 180.1510(1) provides: "Except as provided in
subs. (2) and (3), the registered agent of a foreign corporation
authorized to transact business in this state is the foreign
corporation's agent for service of process, notice or demand
required or permitted by law to be served on the foreign
corporation."
4
No. 2015AP1493.awb
¶44 What reason exists for the appointment of a registered
agent to receive service of a summons and complaint other than
the purpose of being subject to a lawsuit? The majority offers
none. When read together, the plain meaning of Wis. Stat.
§§ 180.1507 and 180.1510(1) is that appointment of a registered
agent to receive service of process constitutes consent to
jurisdiction.
¶45 This plain meaning interpretation is further made
manifest by examining Wis. Stat. § 180.1505(2), which is part of
the statutory scheme. It provides that once a foreign
corporation obtains a certificate of authority, it is not only
able to sue in Wisconsin courts, but is placed on equal footing
with domestic corporations. Pursuant to § 180.1505(2), a
foreign corporation with a valid certificate of authority has
the same privileges and duties as a domestic corporation:
A foreign corporation with a valid certificate of
authority has the same but no greater rights and has
the same but no greater privileges as, and, except as
otherwise provided by this chapter, is subject to the
same duties, restrictions, penalties and liabilities
now or later imposed on, a domestic corporation of
like character.
Significantly, the duties of domestic corporations include being
subject to general jurisdiction in Wisconsin. Wis. Stat.
§ 801.05(1)(c).5
5
Wis. Stat. § 180.05(1)(c) provides that: "A court of this
state having jurisdiction of the subject matter has jurisdiction
over a person served in an action pursuant to s. 801.11 under
any of the following circumstances . . . [i]n any action whether
arising within or without this state, against a defendant who
when the action is commenced . . . [i]s a domestic corporation
or limited liability company . . . ."
5
No. 2015AP1493.awb
¶46 The legislative history further confirms this plain
meaning interpretation. Drafting file for 1989 Wis. Act 303,
Analysis by the Legislative Reference Bureau of 1989 A.B. 780,
Legislative Reference Bureau, Madison, Wis. Prior to the
adoption of the Wisconsin Business Corporation Act by the
Wisconsin Legislature in 1989, the State Bar of Wisconsin
established the Corporate and Business Law Committee to review
and recommend to the Wisconsin Legislature revisions to
Wisconsin's Business Corporations law. See Christopher S.
Berry, Kenneth B. Davis, Jr., Frank C. DeGuire and Clay R.
Williams, Wisconsin Business Corporation Law intro.-2 (State Bar
of Wis. CLE Books 1992). In drafting the proposed revisions of
the Business Corporations Law, the Wisconsin State Bar Committee
selected appropriate provisions from the Revised Model Business
Corporation Act.6 Id. at intro.-3.
¶47 The selected provisions included § 15.07, upon which
Wis. Stat. § 180.1507 is based. See Christopher S. Berry,
Kenneth B. Davis, Jr., Frank C. DeGuire and Clay R. Williams,
Wisconsin Business Corporation Law 15-30 to 15-31 (State Bar of
Wis. CLE Books 1992). The Official Comment to § 15.07 of the
Revised Model Business Corporation Act explains the rationale
for requiring the appointment of a registered agent when a
foreign corporation obtains a certificate of authority. It
provides that: "[a] foreign corporation that obtains a
certificate of authority in a state thereby agrees that it is
6
Revised Model Business Corporations Act § 15.07 cmt. (Am.
Bar Ass'n 1984).
6
No. 2015AP1493.awb
amenable to suit in the state." Revised Model Business
Corporations Act § 15.07 cmt. (Am. Bar Ass'n 1984). Thus, when
the legislature enacted § 180.1507 in conformity with the
Revised Model Business Corporation Act, it intended that a
foreign corporation consent to jurisdiction when it complied
with the registration statute.7
¶48 Finally, I observe that the majority's protestations
that it will not rewrite the statute ring hollow. See Majority
op., ¶15. That is exactly what the majority is doing here. It
writes into the statute an interpretation never adopted by the
Wisconsin Legislature.
¶49 The Model Registered Agent Act provides that "[t]he
designation or maintenance in this state of a registered agent
does not by itself create the basis for personal jurisdiction
over the represented entity in this state." Model Registered
Agents Act § 15 (Unif. L. Comm'n 2015).
7
The legislative reference bureau's analysis to 1989
Assembly Bill 180 explained, "[m]any of the bill's provisions
parallel the revised model business corporation act, as adopted
in 1984 by the corporate laws committee of the American Bar
Association." 1989 Assembly Bill 780, Analysis
by the Legislative Reference Bureau ¶1 (LRB-1540/2); see also
Fergus, Scott et al., The New Wisconsin Business Corporation
Law, iii (1990) ("the overall goal of AB 780 was to provide as
much uniformity as possible with the ABA Model Act.").
7
No. 2015AP1493.awb
¶50 At least eleven jurisdictions have chosen to enact
this Model Act limitation——but not Wisconsin.8 Never mind, the
majority has done it instead. Mimicking the words of the Model
Act, the majority concludes "compliance with the statute [Wis.
Stat. § 180.1507] does not, on its own, confer jurisdiction."
Majority op., ¶1.
¶51 There is nothing in the text of Chapter 180 indicating
that the legislature intended to limit Wisconsin's registration
statute as a basis for general personal jurisdiction. Because
there is no such statutory language limiting Wisconsin's
registration requirement, the majority errs when it takes it
upon itself to rewrite the statute in contravention of the
actual language chosen by the legislature.
¶52 Pursuant to the statutory scheme set forth above,
Countrywide not only obtained a certificate of authority, but it
also appointed a registered agent and exercised its privilege to
use Wisconsin courts. Accordingly, I conclude that Countrywide
consented to personal jurisdiction in Wisconsin when it
appointed a registered agent in order to accept service of
process pursuant to Wis. Stat. §§ 180.1507 and 180.1510(1).
II
8
See Ark. Code Ann. § 4-20-115 (2016); D.C. Code § 29-
104.14 (2016); Idaho Code § 30-21-414 (2016); 2017 Ind. ALS 118,
SECTION 12 (Apr. 21, 2017); Me. Stat. tit. 5, § 115 (2016);
Miss. Code Ann. § 79-35-15(2016); Mont. Code Ann. § 35-7-115
(2017); Nev. Rev. Stat. § 77.440 (2016); N.D. Cent. Code § 10-
01.1-15 (2015); S.D. Codified Laws § 59-11-21 (2015); Utah Code
Ann. § 16-17-401 (2016).
8
No. 2015AP1493.awb
¶53 In an attempt to support its "plain language"
statutory interpretation, the majority relies heavily on United
States Supreme Court precedent addressing jurisdiction over a
non-consenting defendant. The majority's reasoning evinces a
misunderstanding of the concept of consent to personal
jurisdiction. In reaching its conclusion, the majority
conflates two lines of United States Supreme Court cases that
separately address personal jurisdiction over consenting and
non-consenting defendants.
¶54 Central to the majority's analysis is the contention
that the United States Supreme Court's decision in Int'l Shoe
Co. v. Washington, 326 U.S. 310 (1945), "dispensed with the
'purely fictional' notions of implied consent and presence-by-
agent . . . ." Majority op., ¶10. In Int'l Shoe, the Supreme
Court addressed personal jurisdiction under a long-arm statute.
326 U.S. 310 (1945). It concluded that due process requires
that a defendant have certain minimum contacts in a forum in
which it may be sued so as not to offend "traditional notions of
fair play and substantial justice." Id. at 316 (quotation marks
and quoted source omitted).
¶55 Likewise, the majority relies on Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) and Daimler
AG v. Bauman, 134 S. Ct. 746, 759-60 (2014), which analyzed the
due process implications of effecting general jurisdiction over
non-consenting defendants. See Majority op., ¶22. In Daimler,
the Supreme Court reasoned that a court may assert general
jurisdiction over foreign corporations when "their affiliations
9
No. 2015AP1493.awb
with the State are so 'continuous and systematic' as to render
them essentially at home in the forum State."9 Daimler, 134
S. Ct. at 754 (quoting Goodyear, 564 U.S. at 919).
¶56 The majority errs, however, in failing to distinguish
the above non-consensual cases with cases that have long-
established consent as a basis for establishing personal
jurisdiction over a foreign corporation. Although the majority
acknowledges that the Supreme Court has never overruled
Pennsylvania Fire, it refuses to follow controlling precedent.10
Majority op., ¶25.
¶57 In Pennsylvania Fire Ins. Co. v. Gold Issue Mining and
Milling Co., 243 U.S. 93 (1917), an Arizona corporation obtained
a license to conduct business in Missouri and consented to
service of process in the state in compliance with certain
statutory requirements. Id. at 94. It asserted that consent to
service of process was not sufficient to confer jurisdiction
without violating the Fourteenth Amendment right to due process
of law. Id. at 94-95. The Pennsylvania Fire court rejected
9
The United States Supreme Court continues to revisit the
issue of non-consenting personal jurisdiction, most recently in
Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 377 P.3d 874
(Cal. 2016), cert. granted, 137 S. Ct. 827 (2017).
10
There are other jurisdictions that have similarly
conflated these two lines of cases. See e.g., Wal-Mart Stores,
Inc. v. Lemaire, No. 1 CA-SA 17-0003 (Ariz. Ct. App. May 11,
2017). However, still other recent decisions have concluded, as
I do, that appointment of a registered agent constitutes consent
to personal jurisdiction. See, e.g., Senju Pharm. Co. v.
Metrics, Inc., 96 F. Supp. 3d 428, 438-40 (D.N.J. 2015)
(determining that Daimler "did not disturb the consent by-in-
state service rule.").
10
No. 2015AP1493.awb
this argument, explaining that "[t]he construction of the
Missouri statute thus adopted hardly leaves a constitutional
question open." Id. at 95. Accordingly, the Supreme Court
unequivocally determined that registration under state business
statutes is a voluntary act that leaves "no doubt of the
jurisdiction of the state court."
¶58 The Supreme Court reaffirmed Pennsylvania Fire in
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 175
(1939), concluding that where a corporation designated an agent
for service of process in conformity with the General
Corporation Law of New York, "service on the agent shall give
jurisdiction of the person." Quoting Judge Cardozo, Neirbo
explained that the appointment of a registered agent pursuant to
a state statute is consent to a "true contract," where "[t]he
contract deals with the jurisdiction of the person":
The stipulation is, therefore, a true contract. The
person designated is a true agent. The consent that
he shall represent the corporation is a real
consent . . . . The contract deals with jurisdiction
of the person. It does not enlarge or diminish
jurisdiction of subject-matter. It means that,
whenever jurisdiction of the subject-matter is
present, service on the agent shall give jurisdiction
of the person.
Id. (quoting Bagdon v. Phila. & Reading Coal & Iron Co., 217
N.Y. 432, 436-37). Thus, Nierbo concluded that a statute
calling for designation of a registered agent to accept service
of process "is constitutional, and the designation of the agent
'a voluntary act.'" Id. (quoting Pa. Fire. Ins. Co., 243
U.S. at 96).
11
No. 2015AP1493.awb
¶59 Additionally, the majority uses cases involving non-
consenting defendants to overrule Wisconsin precedent regarding
consenting defendants. In State ex rel. Aetna Ins. Co. v.
Fowler, 196 Wis. 451, 457, 220 N.W. 534 (1928), this court
concluded that although the registration statute at issue never
mentioned the word "jurisdiction," defendants were "bound by
their acceptance of such license to hold themselves amenable to
the jurisdiction of our courts." Over the years, this basic
understanding that appointment of a registered agent to accept
service of process evinces consent to jurisdiction has been
reaffirmed. See also, Punke v. Brody, 17 Wis. 2d 9, 13-14, 115
N.W.2d 601 (1962); Hasley v. Black, Sivalls & Bryson, Inc., 70
Wis. 2d 562, 582, N.W.2d 446 (1975).
¶60 In Punke, this court reaffirmed Aetna, reasoning that
"[a] state can exercise through its courts jurisdiction over an
individual who consents to such exercise of discretion." 17
Wis. 2d at 13 (quoting Restatement (First) of Conflict of Laws
§ 81 (1934)). Punke explained appointment of a registered agent
to receive service of process is considered consent to
jurisdiction:
The consent here considered as a basis of jurisdiction
is actual assent to the exercise of jurisdiction.
. . . Consent . . . may be given generally with
respect to actions which may thereafter be brought.
Illustrations: A appoints an agent in state X and
authorizes him to receive service of process in any
action brought against A in a court of X. B brings an
action against A in a court of X and process is served
upon the agent. The court has jurisdiction over A.
Id.
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¶61 Contrary to the majority's assertion, there is no
rationale for limiting Punke's reasoning to cases only where an
individual, rather than a corporation, consents to jurisdiction.
See majority op., ¶27. Indeed, the majority provides no support
for the arbitrary distinction it draws here. This court's
decision in Punke relied on the principles set forth in the
Restatement of Conflict of Laws that apply to consent to
personal jurisdiction.
¶62 Consistent with the rational of the Restatement relied
on by Punke, the Second Restatement Conflict of Laws more
recently explained that a state may exercise jurisdiction when a
foreign corporation consents by appointing a registered agent
for service of process:
A state has power to exercise judicial jurisdiction
over a foreign corporation which has authorized an
agent or a public official to accept service of
process in actions brought against the corporation in
the state as to all causes of action to which the
authority of the agent or official to accept service
extends.
Restatement (Second) of Conflict of Laws § 44 (Am. Law Inst.
1970); see also id. § 43 cmt. B ("Most commonly . . . consent by
a corporation takes the form of the appointment of a statutory
agent to receive service of process in compliance with the
statutory requirements of a state in which the corporation
desires to do business.").
¶63 Likewise, in Halsey, this court again reaffirmed that
consent by appointment of a registered agent for service of
process is a basis for personal jurisdiction. 70 Wis. 2d at
582. Halsey differentiated between various bases for consent,
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explaining that "a defendant entity might be subject to personal
jurisdiction by its actual presence in a state via incorporation
there, or by its consent evidenced by appointment of an agent
for service of process, or by the presence evidenced in
continual and substantial operations." Id. Thus, Halsey
concluded that there would be no burden on due process by a
forum's exercise of personal jurisdiction in such circumstances.
Id.
¶64 According to the majority, however, "[t]he shade of
constitutional doubt that Goodyear and Daimler cast on broad
approaches to general jurisdiction informs our assessment of
this court's older cases." Majority op., ¶24. The majority
reasons that Pennsylvania Fire and Aetna reflect outdated
reasoning and represent a disfavored approach to general
jurisdiction. Majority op., ¶25. Thus, the majority asserts
that "we instead give preference to prevailing due process
standards . . . ." Id.
¶65 The majority fails to recognize that cases like Int'l
Shoe and Daimler maintained a clear distinction between
consenting and nonconsenting defendants. There is nothing
outdated or disfavored about the approach taken in Pennsylvania
Fire, Nierbo or Aetna. Instead, they address an entirely
separate issue from the question presented in the cases relied
on by the majority.
¶66 Int'l Shoe limited its analysis to cases where "no
consent to be sued or authorization to an agent to accept
service of process has been given." 326 U.S. at 317. This
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distinction has been consistently recognized by the United
States Supreme Court. See, e.g., Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (analyzing minimum contacts
"[w]here a forum seeks to assert specific jurisdiction over an
out-of-state defendant who has not consented to suit there");
Ins. Corp. of Ir. V. Compagnie Des Bauxites De Guinee, 456
U.S. 694, 712-13 (1982) (describing Int'l Shoe as establishing
that "'minimum contacts' represent[s] a constitutional
prerequisite to the exercise of in personam jurisdiction over an
unconsenting defendant"); Kopke v. A. Hartrodt S.R.L., 2001 WI
99, ¶22, 245 Wis. 2d 396, 629 N.W.2d 662 ("The Due Process
Clause of the Fourteenth Amendment limits the exercise of
jurisdiction by a state over a nonconsenting nonresident.").
Likewise, Daimler distinguishes its analysis of contacts in a
forum state from cases involving consent to jurisdiction. See
Daimler, 134 S. Ct. at 755-65 (describing "the textbook case of
general jurisdiction appropriately exercised over a foreign
corporation that has not consented to suit in the forum.").
¶67 In both Int'l Shoe and Daimler, there is no mention of
either Pennsylvania Fire or Neirbo, much less any indication
that the Supreme Court intended to overrule those cases.
Further, the rational in cases such as Int'l Shoe and Daimler is
wholly consistent with the rule that a foreign corporation can
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consent to personal jurisdiction by registering to do business
in a state.11
¶68 Concerns justifying the narrowing scope of general
jurisdiction are not present when a corporation voluntarily
registers to do business and designates an agent in the state.
For example, Daimler expressed concern that foreign corporations
be able "to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them
liable to suit." Daimler, 134 S. Ct. at 762 (quoting Burger
King Corp. 471 U.S. at 472). However, when a foreign
corporation voluntarily consents to jurisdiction by complying
with a registration statute, there is no uncertainty that this
conduct will subject it to general jurisdiction in that forum.
These concerns are certainly not present in this case, where
Countrywide has long enjoyed the privilege of using Wisconsin
courts and in exchange consented to the general jurisdiction of
these same courts.
¶69 The majority's failure to distinguish between cases
involving consenting and non-consenting defendants pervades its
analysis. For example, the majority analyzes Wis. Stat.
§ 180.1507 in the context of Wisconsin's long-arm statute,
11
The United States Supreme Court continues to distinguish
between consenting and non-consenting defendants. In BNSF Rwy.
Co. v. Tyrrell, 137 S. Ct. 1549, 1558-60 (2017), it analyzed the
railroad's minimum contacts with the forum state under Daimler.
However, it recognized consent as a separate issue and
specifically declined to address it. Id. at 1560.
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rather than in the context of the statutory scheme where it is
located. According to the majority, if Wis. Stat. §§ 180.1507
and 180.1510(2) were interpreted as effecting consent to general
jurisdiction, then Wisconsin's long-arm statute would be
rendered superfluous. Majority op., ¶17.
¶70 Wisconsin's long-arm statute, Wis. Stat.
§ 801.05(1)(d) gives Wisconsin courts personal jurisdiction over
a defendant "engaged in substantial and not isolated activities
within this state, whether such activities are wholly
interstate, intrastate, or otherwise." The majority asserts
that if registration pursuant to Wis. Stat. § 180.1507 "were
sufficient to expose foreign corporations to general, all-
purpose jurisdiction of Wisconsin courts, the long-arm statute
would effectively serve no purpose." Majority op., ¶17.
¶71 This argument is unpersuasive, however, because the
long-arm statute does not provide an exclusive means by which
Wisconsin courts can obtain personal jurisdiction. Where there
is consent to jurisdiction, there is no need to establish
jurisdiction under the long-arm statute. See Kohler Co. v.
Wixen, 204 Wis. 2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996) ("In
Wisconsin, courts may obtain personal jurisdiction over a party
through any one or more of the grounds stated in Wisconsin's
long-arm statute or by consent.") (emphasis added).
¶72 In sum, I conclude that the circuit court has personal
jurisdiction over Countrywide in this action. Accordingly, I
respectfully dissent.
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¶73 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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