State ex rel., KMart Corporation, Relator, v. Honorable Ronald R. Holliger, Circuit Court of Jackson County, Division 9, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State ex rel., KMart Corporation, Relator, v. Honorable Ronald R. Holliger, Circuit Court of Jackson County, Division 9, Respondent. Case Number: 54687 Handdown Date: 06/23/1998 Appeal From: Original Proceeding in Prohibition Counsel for Appellant: The Chukwuemek N Chionuma Counsel for Respondent: Mark Schmid Opinion Summary: Plaintiff Gladys Strawn brought a personal injury suit against Kmart alleging Kmart's negligence when she slipped on a piece of fish in a Colorado Kmart store. Plaintiff brought suit in Missouri, and Kmart filed a motion to dismiss for lack of personal jurisdiction, or in the alternative, forum non conveniens. The trial court denied Kmart's motion. Kmart then brought an action in prohibition alleging that Respondent lacked personal jurisdiction over it, or in the alternative, that the doctrine of forum non conveniens mandated dismissal of the suit. WRIT MADE ABSOLUTE. Court en banc holds: The Court of Appeals entered its preliminary order of prohibition and now makes it absolute. The Court of Appeals found that: (1) Kmart's act of obtaining a registered agent as required by Missouri law did not constitute consent to general personal jurisdiction; and (2) in order to obtain personal jurisdiction over a foreign defendant, plaintiff must satisfy both due process and Missouri's long-arm statute. Citation: Opinion Author: Harold L. Lowenstein Opinion Vote: WRIT MADE ABSOLUTE. Lowenstein, P.J., Spinden and Smith, J.J., concur. Opinion:

This is an action in prohibition. The plaintiff in the underlying suit, Gladys Strawn, alleges that she slipped and fell on a piece of fish in a Kmart store in Thornton, Colorado as a direct result of defendant Kmart's negligence. Strawn, a Jackson County resident, brought suit against Kmart in Jackson County, Missouri. Kmart is a Michigan corporation authorized by the State of Missouri to conduct business within the State of Missouri as an authorized foreign corporation. Service of process was obtained by serving Kmart's registered agent in the State of Missouri, as permitted by Section 506.150(3) RSMo. 1994.(FN1) Kmart filed its Motion to Dismiss for lack of personal jurisdiction or, in the alternative, dismissed pursuant to the doctrine of forum non conveniens. The respondent, the Honorable Ronald R. Holliger, denied Kmart's Motion to Dismiss. Relator Kmart filed its Petition for Writ of Prohibition alleging that Respondent lacked personal jurisdiction over Kmart, or in the alternative, that the doctrine of forum non conveniens mandated the dismissal of this case, and this court entered its Preliminary Order of Prohibition. Respondent claims to have personal jurisdiction over Kmart in two ways. First, Respondent claims that Kmart consented to the general personal jurisdiction of Missouri courts when Kmart applied for and obtained a certificate of authority to transact business in Missouri and obtained a registered agent in Missouri. Second, Respondent argues that Kmart is present in Missouri continuously and systematically conducting business such that the assertion of general personal jurisdiction over Kmart does not violate the due process clause of the 14th Amendment. As his first basis for in personam jurisdiction, Respondent maintains that Missouri has jurisdiction over Kmart because Kmart consented to the general jurisdiction of Missouri courts when it obtained a certificate of authority and a registered agent for transacting business in Missouri. As a foreign corporation, Kmart is not "authorized to transact business" in Missouri until it obtains a certificate of authority to do so, as required by Section 351.572. In order to obtain a certificate of authority, every foreign corporation must establish a registered office and registered agent for purposes of service of process. Sections 351.576, 351.586, and 351.594 RSMo. 1994. Kmart complied with these statutory requirements so that it might lawfully transact business in Missouri. Respondent relies solely on the case of Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196 (8th Cir. 1990), to support the contention that maintaining a registered agent in Missouri is alone sufficient to establish consent to be sued in Missouri. This court does not find Knowlton persuasive. Certainly, Missouri courts have recognized that where the court has jurisdiction of the subject matter or cause of action, jurisdiction over the persons of the parties may be conferred by consent, as where a defendant has voluntarily

submitted to the jurisdiction of the court. Bennett v. Shaul, 318 S.W.2d 307, 309 (Mo. 1958). However, the court has located no Missouri cases that have extended the doctrine to include situations where a foreign corporation obtains a registered agent as required by law. In Knowlton, plaintiff was a Minnesota resident who was injured while driving in Iowa. Her vehicle collided with a truck that was operated under license by defendant Allied Van Lines, Inc., a Delaware corporation with its principal place of business in Illinois. The defendant was present and doing business in Minnesota, and was properly registered to do so as a foreign corporation under Minnesota law. Defendant moved to dismiss for lack of personal jurisdiction, and the District Court granted the motion, holding that there must be a connection between the cause of action and the defendant's contacts with Minnesota in order to exercise jurisdiction under Minnesota's long-arm statute. The Eighth Circuit reversed and held that a foreign corporation's appointment of a registered agent for service of process constituted consent by the foreign corporation to the personal jurisdiction of Minnesota's courts. Knowlton v. Allied Van Lines, Inc., 900 F.2d at 1199. In its analysis, the Knowlton court stated that whether a foreign corporation consents to personal jurisdiction by appointing a registered agent is determined by the language of the state statute.(FN2) Id. In reaching its decision, the Knowlton court held that the applicable Minnesota statute did not limit service of process to claims arising out of activities within the state. Id. However, the court in Knowlton acknowledged that "some statutes are so limited," implying that the act of registering an agent would not be a submission to personal jurisdiction in those states. Id. Respondent argues that, like Minnesota, Section 351.594, Missouri's statute for service on foreign corporations, does not limit its application to claims arising out of activities occurring within the state. However, Respondent indicated that, in the instant case, service of process was obtained by serving Kmart's registered agent pursuant to Section 506.150(3), Missouri's general service statute. Regardless of which service of process statute Respondent employed, Respondent has erroneously equated the manner in which a foreign corporation may be served with the jurisdictional effect of such service. See Applewhite v. Metro Aviation, Inc., 875 F.2d 491, 494 (5th Cir. 1989); Krug v. Abel, 716 S.W.2d 17, 20 (Mo. App. 1986). Both Section 351.594 and Section 506.150(3) merely provide the means in which to serve a defendant with notice of a lawsuit. Neither statute indicates that proper service under the statute is sufficient to invoke personal jurisdiction. In fact, Section 506.150(3) states that service shall be made "[u]pon a . . . foreign corporation . . . when by law it may be sued as such, by delivering a copy of the summons and of the petition to . . . any other agent . . . required by law to receive service of process."(FN3) (emphasis added). Given the restrictive language of Section 506.150, it appears that service is only proper if there is a separate legal basis, apart from Section 506.150, for obtaining

personal jurisdiction. The Missouri legislature provides for such jurisdiction of a non-resident defendant in Section 506.500, Missouri's long-arm statute. Surely the legislature would have provided language indicating a grant of jurisdiction in Sections 351.594 and 506.150 if it had intended for those statutes to create personal jurisdiction over a foreign corporation. Regardless of the interpretation of Missouri's service of process statutes under a Knowlton analysis, the mere act of serving a foreign corporation's agent is not alone sufficient to create personal jurisdiction over the corporation. In Wenche Siemer v. Learjet Acquisition Corp., 966 F.2d 179 (5th Cir. 1992), the Fifth Circuit of the United States Court of Appeals commented on whether the existence of a registered agent in the forum state constitutes consent to the general jurisdiction of the forum state. The court stated, To assert, as plaintiffs do, that mere service on a corporate defendant automatically confers general jurisdiction displays a fundamental misconception of corporate jurisdictional principles. This concept is directly contrary to the historical rationale of International Shoe and subsequent Supreme Court decisions. A registered agent, from any conceivable perspective, hardly amounts to "the general business presence" of a corporation so as to sustain an assertion of general jurisdiction. Id. at 183. This court finds the reasoning and logic of Wenche Siemer persuasive. The act of obtaining a registered agent in Missouri, as required by Missouri law, does not constitute consent by a foreign corporation to be sued for any cause of action, regardless of whether it arises out of the corporation's contacts with Missouri, in Missouri courts. In his second argument, Respondent contends that because Kmart admits to having sufficient minimum contacts with Missouri to satisfy due process that Kmart is subject to general personal jurisdiction(FN4) in Missouri under the Supreme Court decisions of Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413 (1952), and Helicopteros Nacionales De Columbia, S.A. v. Hall, 466 U.S. 413, 104 S.Ct. 1868 (1984). General personal jurisdiction requires that a nonresident defendant's contacts with the forum be "substantial and continuous." United Missouri Bank of Kansas City v. Bank of New York, 723 F.Supp. 408, 410 (W.D.Mo. 1989). Respondent correctly states that Perkins held that even in cases where the cause of action does not arise out of or relate to the foreign corporation's activities in the forum state, due process is not violated if the corporation has substantial and continuous contacts with the state. Perkins, 342 U.S. at 418-19. However, satisfaction of due process requirements is only one of the two requirements necessary to obtain personal jurisdiction over a foreign defendant in Missouri. Watlow Elec. Mfg. Co. v. Sam Dick Industries, Inc., 734 S.W.2d 295, 296-97 (Mo. App. 1987). Plaintiff must also establish that the cause of action falls within those enumerated actions in Section 506.500, Missouri's long arm statute. Clearly, Kmart admits in its brief that they have sufficient minimum contacts with Missouri to satisfy due process requirements. However, the fact that due process is satisfied in the present case does not create jurisdiction over Kmart.

Perkins, 72 S.Ct. at 416. Speaking to this issue, the Supreme Court of the United States stated in Perkins that, The answer to the question of whether the state courts . . . are open to a proceeding in personam, against an amply notified foreign corporation, to enforce a cause of action not arising in [the state] and not related to the business or activities of the corporation in that State rests entirely upon the law of [the state.] . . . The suggestion that federal due process compels the State to open its courts to such a case has no substance. (bold emphasis added.) Id. at 415-16. Under Perkins, the Missouri legislature was free to make long-arm jurisdiction over a foreign corporation more restrictive than what the due process clause allows. Although this court has found no Missouri cases interpreting the boundaries of Missouri's long-arm statute, several cases in the federal courts have had the opportunity. See Cunningham v. Subaru of America, Inc., 620 F.Supp. 646, 647 (W.D.Mo. 1985); Woolridge v. Beech Aircraft Co., 479 F.Supp. 1041 (W.D.Mo. 1979). Relying on its previous decisions in Cunningham and Woolridge the Federal District Court for the Western District of Missouri held in United Missouri Bank of Kansas City v. Bank of New York, 723 F.Supp. 408 (W.D.Mo. 1989), that the Missouri long-arm statute prohibits the exercise of general personal jurisdiction over a nonresident defendant. We agree. The unambiguous language of Section 506.500 compels the "inescapable conclusion" that long-arm jurisdiction over a non-resident defendant only exists if some portion of the defendant's contacts with Missouri gives rise to the action asserted. Woolridge v. Beech Aircraft Co., 479 F.Supp. at 1054. Because plaintiff has not shown that the cause of action arose out of any of the enumerated actions in Section 506.500, this court finds that the trial court was without personal jurisdiction over Kmart. As a result, it is unnecessary to reach the issue of forum non conveniens. The preliminary Order in Prohibition is now made absolute. All Concur. Footnotes: FN1.All statutory references are to RSMo. 1994 unless otherwise indicated. FN2.This is consistent with the United States Supreme Court's analysis in Perkins v. Benguet Consolidated Mining Co., 72 S.Ct. 413 (1952), where the Supreme Court held that whether a foreign corporation is subject to personal jurisdiction, for causes of action not arising in the forum state and not related to the business or activities of the corporation in the forum state, rests entirely upon state law, as long as due process is not violated. Id. at 415-16. FN3.Similarly, '351.594, which addresses service on foreign corporations, states that, "[t]he registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process . . . required or permitted by law to be served in the foreign corporation." (emphasis added). FN4.For an explanation of both general and specific personal jurisdiction see United Mo. Bank of Kansas City v. Bank of New York, 723 F.Supp. 408, 410 (W.D.Mo. 1989). Separate Opinion:

None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.