Lillian Figueroa v. BNSF Railroad Company

Oregon requires that foreign corporations doing

business in this state appoint a registered agent to receive

service of process. ORS 60.731(1).1 The primary question

that this case presents is whether, by appointing a registered

agent in Oregon, defendant (a foreign corporation)

impliedly consented to general jurisdiction here—that is,

whether defendant consented to have Oregon courts adjudicate

any and all claims against it regardless of whether

those claims have any connection to defendant’s activities in

this state.2 Defendant moved to dismiss this action because

the trial court lacked general jurisdiction over it. When the

court denied the motion, defendant petitioned for an alternative

writ of mandamus. We issued the writ, the trial court

adhered to its decision, and the trial court’s ruling is now

before us for decision. We hold, as a matter of state law, that

the legislature did not intend that appointing a registered

agent pursuant to ORS 60.731(1) would constitute consent to

the jurisdiction of the Oregon courts.

Plaintiff was working for BNSF Railway Company

in Pasco, Washington, where she was repairing a locomotive

engine. To perform the repair, she had to stand on a portable

stair placed on a catwalk on the locomotive. While she was

reaching up to remove an engine part, the “portable stair

supplied by [BNSF] rolled or kicked out from under [p]laintiff,”

causing her to sustain substantial injuries. Plaintiff

alleged that her “injuries resulted in whole or in part from

1 A “foreign corporation” refers to a corporation incorporated under the laws

of another state or country. See ORS 60.001(15) (defining that term).

2 Since International Shoe Co. v. Washington, 326 US 310, 66 S Ct 154, 90

L Ed 95 (1945), the United States Supreme Court has identified two types of

jurisdiction—specific and general. See Goodyear Dunlop Tires Operations, S.A.

v. Brown, 564 US 915, 919, 131 S Ct 2846, 180 L Ed 2d 796 (2011) (defining those

terms). Specific jurisdiction “describes the exercise of jurisdiction over a suit arising

out of or related to the defendant’s contacts with the forum.” Philip Thoennes,

Personal Jurisdiction Symposium: An Introduction, 19 Lewis & Clark L Rev 593,

594 (2015) (internal quotation marks omitted). By contrast, general jurisdiction

“allows a state to exercise personal jurisdiction over a nonresident defendant,

even if the cause of action neither arose in [the forum state] nor related to the

[defendant’s] activities in that State.” Id. at 595. Although those terms did not

gain currency until relatively recently, we use them in this opinion to describe

the extent to which courts both before and after International Shoe exercised

jurisdiction over nonresident defendants.

Cite as 361 Or 142 (2017) 145

[BNSF’s] negligence in failing to provide [her] with a safe

place to work, and with safe tools and equipment.” For the

purposes of this case, we assume that those allegations are

true.

BNSF is a foreign corporation. It is incorporated

in Delaware and has its principal place of business in Fort

Worth, Texas.3 Plaintiff brought this action against BNSF

in Oregon to recover for the injuries that she sustained in

Washington. When BNSF moved to dismiss for lack of personal

jurisdiction, plaintiff advanced three arguments. She

argued: (1) that BNSF’s activities in this state were sufficient

for Oregon courts to exercise general jurisdiction over

it; (2) that the Federal Employees Liability Act, 35 Stat 65,

as amended, codified as 45 USC sections 51-60, gives a state

general jurisdiction over interstate railroads doing business

in the state; and (3) that, by appointing a registered agent

in Oregon to receive service of process, BNSF had consented

to general jurisdiction in Oregon. Our opinion in Barrett v.

Union Pacific Railroad Co., 361 Or 115, ___ P3d ___ (2017),

resolves plaintiff’s first two arguments. We write only to

address her third argument regarding Oregon’s registration

statute.

I. OREGON’S REGISTRATION STATUTE

ORS 60.721 requires that foreign corporations doing

business in Oregon maintain a registered office and appoint

a registered agent in this state. ORS 60.731(1) provides

that the registered agent “shall be an agent of such corporation

upon whom any process, notice or demand required

or permitted by law to be served upon the corporation may

be served.” The parties disagree about what ORS 60.731(1)

means. Relying on a 1915 Oregon case interpreting an earlier

corporate registration statute, plaintiff argues that, by

appointing a registered agent, BNSF impliedly consented

3 BNSF operates in 28 states, including Oregon, as well as two Canadian

provinces. BNSF has been registered to do business in Oregon since 1970. It

owns 235 route miles of track in Oregon and has trackage rights to another

151 miles in the state, which together represent slightly more than one percent of

the 32,500 route miles that BNSF operates in all 30 jurisdictions. BNSF employs

368 employees in Oregon, who comprise less than one percent of its 41,000 employees.

Finally, BNSF operates rail yards in Bend, Klamath Falls, and Portland, as

well as an intermodal facility in Portland.

146 Figueroa v. BNSF Railway Co.

to general jurisdiction in Oregon. BNSF responds that ORS

60.731(1) requires only that a foreign corporation designate

a person in Oregon upon whom process may be served; it

says nothing about jurisdiction. Alternatively, BNSF argues

that, even if appointing a registered agent manifests implied

consent to specific jurisdiction, it does not constitute consent

to general jurisdiction. Finally, BNSF contends that requiring

foreign corporations to consent to general jurisdiction as

a condition of doing business in Oregon violates the federal

constitution.

As noted above, our holding in this case turns on the

legislature’s intent in enacting ORS 60.731(1). Specifically,

we conclude that appointing a registered agent to receive

service of process merely designates a person upon whom

process may be served. It does not constitute implied consent

to the jurisdiction of the Oregon courts. In reaching

that conclusion, we follow our usual methodology for interpreting

statutes. We consider the text, context, and legislative

history of ORS 60.731(1). See State v. Gaines, 346 Or

160, 170-71, 206 P3d 1042 (2009) (describing statutory construction

methodology).

A. Text

ORS 60.731(1) provides:

“The registered agent appointed by a foreign corporation

authorized to transact business in this state shall be

an agent of such corporation upon whom any process, notice

or demand required or permitted by law to be served upon

the corporation may be served.”

Textually, ORS 60.731(1) addresses service, not jurisdiction.

Jurisdiction refers to the forum’s authority to adjudicate

claims against a defendant. Pennoyer v. Neff, 95 US 714,

722-23, 24 L Ed 565 (1878). Service refers to the process

by which a defendant over whom a court has jurisdiction is

brought before the court. See id. at 727. Both are necessary

for a court to issue a binding judgment, but the two concepts

are not synonymous.

By its terms, ORS 60.731(1) addresses only one of

those concepts. ORS 60.721 requires foreign corporations

doing business here to designate a registered agent in this

Cite as 361 Or 142 (2017) 147

state upon whom process may be served. ORS 60.731(1)

defines the function that the registered agent serves; the

agent is a person authorized to accept service of process

“required or permitted by law” to be served on the corporation.

The statute neither addresses jurisdiction nor equates

appointing an agent for service with consent to jurisdiction

in Oregon. Beyond that, ORS 60.731(1) requires that

the agent be authorized to accept “any process, notice or

demand required or permitted by law to be served upon

the corporation.” (Emphasis added.) As the emphasized

text makes clear, ORS 60.731(1) looks to some other source

of law to define which process a registered agent must be

“required or permitted” to accept. If another source of law

(the Fourteenth Amendment or a state long-arm statute, for

instance) does not require or permit process to be served

on the corporation, then ORS 60.731(1) does not provide an

independent source of jurisdiction where there otherwise

would be none. Rather, ORS 60.731(1) merely requires the

registered agent be authorized to accept the process that

another source of law “require[s] or permit[s]” to be served

upon the corporation.

B. Context

Context includes “ ‘the preexisting common law

and the statutory framework within which the law was

enacted.’ ” Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140

(2004) (quoting Denton and Denton, 326 Or 236, 241, 951

P2d 693 (1998)). In this case, there are three contextual

sources that bear on the interpretation of ORS 60.731(1):

(1) due process limitations on exercising personal jurisdiction

over foreign corporations; (2) the 1903 Oregon corporation

statute requiring foreign corporations to appoint

a registered agent for service of process as a condition of

doing business here and state cases interpreting that statute;

and (3) the 1953 Oregon corporation statute, which

revised and replaced the 1903 statute and enacted what

is currently codified as ORS 60.731(1). We describe each of

those sources briefly and then explain why those sources

persuade us that this court’s interpretation of the 1903

registration statute does not inform the current registration

statute’s meaning.

148 Figueroa v. BNSF Railway Co.

1. Constitutional limitations on jurisdiction over foreign

corporations

Between the enactment of the first comprehensive

Oregon corporation statute in 1903 and the first major revision

of that statute in 1953, the terms on which state courts

could constitutionally exercise personal jurisdiction over foreign

corporations changed. A brief discussion of that change

in constitutional law is necessary to put the corresponding

changes to Oregon’s registration statutes in perspective.

In 1878, the United States Supreme Court held

that the Due Process Clause places geographical limits

on a state’s exercise of jurisdiction over persons and property.

Pennoyer, 95 US at 722-23; see Burnham v. Superior

Court of Cal., Marin County, 495 US 604, 110 S Ct 2105,

109 L Ed 2d 631 (1990) (plurality) (describing Pennoyer).

Regarding personal jurisdiction, the Court recognized that

a state can adjudicate transient claims (negligence claims,

breach of contract claims, and the like) against nonresident

defendants (natural persons) if those persons were served

within the state’s geographical boundaries.4 Pennoyer, 95

US at 733; see Burnham, 495 US at 617 (plurality). Under

Pennoyer, a person’s presence within the state’s territorial

boundaries gave the state authority to adjudicate transient

claims against that person, and service while the person

was within the state’s jurisdiction perfected that authority.

Pennoyer did not consider when a state can exercise

personal jurisdiction over foreign corporations. Before

International Shoe Co. v. Washington, 326 US 310, 66 S Ct

154, 90 L Ed 95 (1945), the cases that addressed that issue

started from the proposition that a corporation was subject

to suit only in the state where it was incorporated. See

St. Clair v. Cox, 106 US 350, 354, 1 S Ct 354, 27 L Ed 222

(1882) (discussing earlier decisions). As the Court explained,

however, “[t]he doctrine of the exemption of a corporation

4 The specific issue in Pennoyer was whether Oregon could exercise quasi in

rem jurisdiction over property located in this state to determine a nonresident

defendant’s personal obligations. The Court held that Oregon had jurisdiction to

do so but service had not been proper. In Shaeffer v. Heitner, 433 US 186, 97 S Ct

2569, 53 L Ed 2d 683 (1977), the Court held that, after International Shoe, a state

could not rely on quasi in rem jurisdiction to determine a nonresident defendant’s

personal obligations, even with proper service.

Cite as 361 Or 142 (2017) 149

from suit in a State other than that of its creation was the

cause of much inconvenience and often of manifest injustice.”

Id. To avoid that problem, two related but separate theories

for acquiring jurisdiction over foreign corporations developed.

One theory was based on implied consent. See

St. Clair, 106 US at 354-55; The Lafayette Insurance Co. v.

French, 59 US (18 How) 404, 407-08, 15 L Ed 451 (1855).

Consent was implied either because the foreign corporation

was doing business in the state or because the corporation

had complied with a state statute requiring that it appoint a

registered agent in the state to receive service of process. See

William F. Cahill, Jurisdiction over Foreign Corporations,

30 Harv L Rev 676, 690 (1917); Joseph Henry Beale, The

Law of Foreign Corporations § 280 (1904) (consent implied

from merely doing business in a state). The other theory

was based on presence. A foreign corporation that was doing

business in a state was present in that state in much the

same way that a natural person was. Compare International

Harvester v. Kentucky, 234 US 579, 34 S Ct 944, 58 L Ed 1479

(1914) (continuous course of soliciting business and delivering

machines in Kentucky was sufficient to establish that

the corporation was doing business there and thus present),

with Green v. Chicago, Burlington & Quincy Ry., 205 US 530,

533-34, 27 S Ct 595, 51 L Ed 916 (1907) (soliciting business

alone in a state insufficient to establish that the corporation

was “doing business” there). If the foreign corporation’s

in-state agent was served with process while the corporation

was doing business in the state, then the state courts could

adjudicate transient claims against it. Id.

Because both implied consent and presence rested

on the premise that a foreign corporation was “doing business”

in a state, the line between the two theories was not

always distinct. See Tauza v. Susquehanna Coal Co., 220

NY 259, 115 NE 915 (1917) (reasoning that the defendant

did sufficient business within New York to be subject to its

jurisdiction under International Harvester and that it was

amenable to general jurisdiction as a result of a state registration

statute). Additionally, the cases were not always

consistent regarding the consequences of the two theories.

For example, a 1904 treatise explained that the majority

rule was that a foreign corporation that was doing business

150 Figueroa v. BNSF Railway Co.

in a jurisdiction impliedly consented to general jurisdiction.

Beale, The Law of Foreign Corporations § 280. The minority

rule was that a foreign corporation doing business in a state

was subject only to specific jurisdiction—a rule that Oregon

initially followed. Id. (noting minority rule); see Farrell v.

Oregon Gold Co., 31 Or 463, 49 P 876 (1897) (doing business

in Oregon without appointing an agent for service of process

gave rise to specific jurisdiction); Aldrich v. Anchor Coal Co.,

24 Or 32, 32 P 756 (1893) (same).5

Before 1945, whether consent was manifested by

appointing a registered agent pursuant to a state statute

varied according to the terms of the statute. In 1882, the

Court stated, as a general proposition, that foreign corporations

that appointed a registered agent as a condition

of doing business consented to specific jurisdiction. See

St. Clair, 106 US at 356 (so stating). Later, in reconciling

potentially divergent decisions, the Court explained:

“Unless the state law either expressly or by local construction

gives to the appointment [of a registered agent] a

larger scope, we should not construe it to extend to suits in

respect of business transacted by the foreign corporation

elsewhere.”

Mitchell Furn. Co. v. Selden Breck Co., 257 US 213, 216,

42 S Ct 84, 66 L Ed 201 (1921). However, if a state statute

made general jurisdiction the consequence of appointing

a registered agent, then complying with the statute would

constitute consent to general jurisdiction. Pennsylvania Fire

Insurance Co. v. Gold Issue Mining Co., 243 US 93, 37 S Ct

344, 61 L Ed 610 (1917). Finally, the Court recognized that,

even though a foreign corporation had consented to jurisdiction

by appointing a registered agent, it was not subject

to the state’s jurisdiction if it were no longer “doing business”

in the state when the action was filed. Chipman, Ltd.

v. Jeffery Co., 251 US 373, 379, 40 S Ct 172, 64 L Ed 314

(1920); see Mitchell Furn. Co., 257 US at 216 (recognizing

5 In 1907, the United States Supreme Court held that a corporation that was

merely doing business in a state was subject only to specific jurisdiction. Old

Wayne Life Ass’n v. McDonough, 204 US 8, 22-23, 27 S Ct 236, 51 L Ed 345 (1907).

The Court thus rejected the proposition stated in the 1904 treatise on foreign corporations,

cited above, that merely doing business in a state without appointing a

registered agent could subject a foreign corporation to general jurisdiction.

Cite as 361 Or 142 (2017) 151

that qualification). That is, the foreign corporation’s consent,

manifested by appointing a registered agent, was not sufficient

standing alone to give the forum general jurisdiction

over the corporation. Chipman, Ltd., 251 US at 379.6

In 1945, the Court recast the constitutional bases

on which a state can exercise personal jurisdiction over nonresident

defendants. See International Shoe, 326 US at 316-

19. It explained that presence within the jurisdiction was no

longer a necessary prerequisite to jurisdiction over a nonresident

defendant. Id. at 316. It reasoned that, for foreign corporations,

the “terms ‘present’ or ‘presence’ are used merely

to symbolize those activities of the corporation’s agent within

the state which courts will deem to be sufficient to satisfy

the demands of due process.” Id. at 316-17. Similarly, it recognized

that “some of the decisions holding a corporation

amenable to suit have been supported by resort to the legal

fiction that it has given its consent to service and suit, consent

being implied from its presence in the state through the

acts of its authorized agents.” Id. at 318. The Court explained

that “more realistically it may be said that those authorized

acts were of such a nature as to justify the fiction.” Id.7

The Court thus shifted the federal constitutional

basis for exercising jurisdiction over foreign corporations

away from conclusory terms like “presence” and legal fictions

like “implied consent” and grounded it instead on an

assessment of “the quality and nature of the [defendant’s]

activity [within the forum] in relation to the fair and orderly

administration of the laws which it was the purpose of

6 Chipman’s holding appears to rest on the Court’s interpretation of the state

registered agent statute, although the Court explained that basing the decision

on state law did not imply that federal law would not lead to the same result. 251

US at 379.

7 After noting the legal fiction that foreign corporations had given implied

consent to service and suit, the Court cited specific parts of four of its decisions.

See International Shoe, 326 US at 318. The citations to each decision concerned

consent implied from appointing a registered agent for receipt of process. See

Washington v. Superior Court, 289 US 361, 364-65, 53 S Ct 624, 77 L Ed 1256

(1933); Commercial Mutual Accident Co. v. Davis, 213 US 245, 254, 29 S Ct 445,

53 L Ed 782 (1909); St. Clair, 106 US at 356; The Lafayette Insurance Co., 59 US

(18 How) at 407. The Court thus made clear that consent implied from appointing

a registered agent was a legal fiction that “more realistically” rested on the

extent of a corporation’s activities within a state.

152 Figueroa v. BNSF Railway Co.

the due process clause to insure.” Id. at 319. As the Court

explained:

“[T]o the extent that a corporation exercises the privilege

of conducting activities within a state, it enjoys the

benefits and protection of the laws of that state. The exercise

of that privilege may give rise to obligations, and, so

far as those obligations arise out of or are connected with

the activities within the state, a procedure which requires

the corporation to respond to a suit brought to enforce them

can, in most instances, hardly be said to be undue.”

Id. It followed, the Court explained, that courts will have

specific jurisdiction “when the activities of the corporation

[in the forum state] have not only been continuous and systematic,

but also give rise to the liabilities sued on.” Id. at 317.

The Court also recognized that “there have been instances

in which the continuous corporate operations within a state

were thought 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.

With that federal constitutional background in

mind, we turn to Oregon law between 1903 and 1953.

2. Oregon law between 1903 and 1953

In 1903, the legislature enacted Oregon’s first comprehensive

statute regulating domestic corporations and

foreign corporations doing business here. Or Laws 1903,

p 39. Among other things, the 1903 act required foreign corporations

doing business in Oregon to appoint a registered

agent in this state to receive service of process. Id., pp 44-45,

§ 6. Specifically, section 6 of the 1903 act provided that, as a

condition of doing business in Oregon, foreign corporations:

“shall duly execute and acknowledge a power of attorney

* * * [which] shall appoint some person, who is a citizen

of the United States and a citizen and resident of this

state, as attorney in fact for such foreign corporation, * * *

and such appointment shall be deemed to authorize and

empower such attorney to accept service of all writs, process,

and summons, requisite or necessary to give complete

jurisdiction of any such corporation * * * to any of the courts

of this state or United States courts therein, and shall be

deemed to constitute such attorney the authorized agent of

Cite as 361 Or 142 (2017) 153

such corporation * * * upon whom lawful and valid service

may be made of all writs, process, and summons in any

action, suit, or proceeding, commenced by or against any

such corporation * * * in any court mentioned in this section,

and necessary to give such court complete jurisdiction

thereof.”

Id.

Section 6 was written broadly. It required that the

corporation’s registered agent (its attorney in fact) be authorized

to accept process “in any action, suit, or proceeding”

that was “necessary to give [an Oregon] court complete

jurisdiction” over the foreign corporation. Building on that

statute, plaintiff contends that, in 1915, this court held

that appointing a registered agent pursuant to section 6

constituted consent to general jurisdiction in Oregon. See

Ramaswamy v. Hammond Lumber Co., 78 Or 407, 152 P

223 (1915). In our view, this court’s decision in Ramaswamy

stands for a more limited principle than plaintiff perceives.8

However, a 1928 decision, which plaintiff did not cite, provides

greater support for her position. See State ex rel. Kahn

v. Tazwell, 125 Or 528, 266 P 238 (1928), overruled in part

on other grounds, Reeves v. Chem Industrial Co., 262 Or 95,

100-01, 495 P2d 729 (1972). We accordingly describe that

decision briefly and then turn to the third contextual source

that bears on our inquiry—the revision of Oregon’s corporations

act in 1953.

In Kahn, the plaintiff (who was not a resident of

Oregon) filed an action in Oregon to recover on an insurance

policy that the defendant (a New York corporation)

had issued to the plaintiff in Germany. 125 Or at 531-32.

The defendant was doing business in this state and had

appointed a registered agent to receive process pursuant to

a statute governing foreign insurers, which was essentially

8 The question in Ramaswamy was whether, under the 1903 act, a claim

against a foreign corporation for an injury that occurred in Clatsop County should

have been brought in Clatsop or Multnomah County. 78 Or at 411. This court reasoned

that, under the 1903 act, the claim could be brought in Multnomah County,

“no matter where the cause of action arose.” Id. at 419. In making that statement,

the court did not hold that the claim could be brought in Multnomah County

even if it arose in another state. The court held only that, under the 1903 act, a

claim against a foreign corporation could be brought in Multnomah County even

though it arose in a different county in this state.

154 Figueroa v. BNSF Railway Co.

identical to section 6 of the 1903 act. See id. at 533-34 (setting

out the registration statute applicable to foreign insurance

companies).9 This court held that service on the defendant’s

registered agent in Oregon gave this state jurisdiction over

the defendant and that Oregon had “jurisdiction of the subject

matter of the action, notwithstanding the fact that the

contract of insurance was executed outside the state, and

notwithstanding the fact that the plaintiff is a nonresident

of the State of Oregon.” Id. at 542.

In reaching that holding, this court touched on a

variety of theories and sources. Among other things, it noted

that foreign corporations that do business in a jurisdiction

consent to be sued there either as a result of doing business

in the state or as a result of appointing a registered agent

as a condition of doing business. See id. at 538, 541. It also

noted cases standing for the proposition that foreign corporations

doing business in a state are present there. Id. at

537-38, 540. After citing a variety of legal sources, including

various legal encyclopedias, the court concluded that Oregon

had jurisdiction over the defendant to adjudicate a cause of

action that arose in Europe. Id. at 542.

The decision in Kahn lacks a clear analytical thread.

It consists of a compilation of theories and authorities that

reflect, in many ways, the varied theories for exercising

jurisdiction over foreign corporations that the federal and

state courts had articulated in the early part of the twentieth

century. It is difficult to say, however, that Kahn does

not stand for the proposition that, by appointing a registered

agent pursuant to a statute virtually identical to section 6

of the 1903 act, the defendant consented to general jurisdiction

in Oregon. Id. at 542. That theory and others run

through the decision. We accordingly assume, for the purposes

of deciding this case, that Kahn stands for the proposition

that appointing a registered agent pursuant to the

1903 act constitutes implied consent to general jurisdiction.

The question that remains is whether that interpretation of

9 Although the defendant was doing business here and presumably issued

other insurance policies to Oregon residents, the opinion in Kahn does not identify

any act or event in Oregon that related to the claim or policy at issue in that

case.

Cite as 361 Or 142 (2017) 155

the 1903 act continues to inform our understanding of ORS

60.731(1).10 We accordingly turn to ORS 60.731(1), the third

contextual source that bears on the inquiry.

3. Oregon law after 1953

Fifty years after it passed the 1903 corporations act,

the Oregon legislature undertook a major revision of that

act. See Or Laws 1953, ch 549. In 1953, it enacted the Oregon

Business Corporation Act, which it modeled on the 1950

Model Business Corporation Act drafted by the American

Bar Association (ABA). See Meyer v. Ford Industries, 272 Or

531, 535, 538 P2d 353 (1975) (so noting). The 1953 Oregon

Business Corporation Act addressed domestic and foreign

corporations separately. See Or Laws 1953, ch 549, §§ 98-116

(setting out provisions for foreign corporations separately

from the previous provisions that had addressed domestic

corporations).

Unlike the 1903 corporations act, the 1953 act

required both domestic and foreign corporations to appoint a

registered agent in this state. That is, the 1953 act included

virtually identically worded provisions requiring domestic

and foreign corporations to appoint a registered agent

and specified that the agents for both types of corporations

would serve the same function. On the latter issue, section

13 of the 1953 act provided that for domestic corporations:

“The registered agent so appointed by a corporation

shall be an agent of such corporation upon whom any process,

notice or demand required or permitted by law to be

served upon the corporation may be served.”

Id. § 13; see ORS 60.121(1) (codifying section 13). Section

107 provided that for foreign corporations:

“The registered agent so appointed by a foreign corporation

authorized to transact business in this state shall be

an agent of such corporation upon whom any process, notice

or demand required or permitted by law to be served upon

the corporation may be served.”

10 As explained below, we conclude that Kahn is no longer good law after the

enactment of the 1953 Oregon Business Corporation Act. In reaching that conclusion,

we express no opinion on whether, under International Shoe, the Oregon

courts could have exercised specific jurisdiction over the defendant in Kahn.

156 Figueroa v. BNSF Railway Co.

Or Laws 1953, ch 549, § 107; see ORS 60.731(1) (codifying

section 107). The only difference between the two provisions

is that the latter applies to “a foreign corporation authorized

to transact business in this state” while the former applies

to domestic corporations. Although the 1953 act has been

amended since its enactment more than 60 years ago, the

terms of ORS 60.121(1) and ORS 60.731(1) have remained

unchanged.11

With that context in mind, we turn to whether

this court’s interpretation of the 1903 act (or its counterpart

for insurers) in Kahn informs our understanding of

ORS 60.731(1). We draw three inferences from that context.

First, the text of ORS 60.731(1) differs significantly from

the text of the 1903 act, which suggests that the 1953 legislature

had a different goal in mind. Second, those textual

changes correspond with the shift in 1945 of the constitutional

basis for exercising jurisdiction over foreign corporations

from implied consent to the nature and quality of the

corporation’s contacts with the forum state. Third, by specifying

that service of process on the registered agents for

domestic and foreign corporations serves the same function,

Oregon’s 1953 corporation act negates the proposition that

appointing a registered agent constitutes implied consent to

jurisdiction.

a. Textual differences between the 1953 and 1903

acts

ORS 60.731(1) lacks the terms that persuaded this

court in Kahn that section 6 of the 1903 act gave Oregon

courts general jurisdiction over foreign corporations.12 The

1903 act directed foreign corporations to execute a written

power of attorney appointing an attorney in fact as the

agent for the corporation. Or Laws 1903, pp 44-45, § 6. It

then provided that

11 In 1987, the legislature renumbered the provisions in the 1953 corporation

act. See Or Laws 1987, ch 52. However, except for being renumbered, the terms of

ORS 60.121(1) and ORS 60.731(1) have remained the same since 1953.

12 As noted above, the foreign insurer in Kahn appointed a registered agent

pursuant to a statute governing foreign insurers that is essentially identical to

section 6 of the 1903 act. For ease of reference we refer only to the 1903 act, which

Kahn cited interchangeably with the specific statute at issue in that case.

Cite as 361 Or 142 (2017) 157

“such appointment * * * shall be deemed to constitute such

attorney the authorized agent of such corporation * * * upon

whom lawful and valid service may be made of all writs,

processes, and summons in any action * * * in any court

commenced * * * against any such corporation, * * * and necessary

to give such court complete jurisdiction thereof.”

Id. (emphasis added). As the court observed in Kahn, the

terms that the 1903 legislature used were “ ‘broad and comprehensive.’

” 125 Or at 538 (quoting Ramaswamy, 78 Or at

419). Not only did the 1903 act provide that appointing a

registered agent for service of process would give Oregon

courts “complete jurisdiction” over a foreign corporation, but

it specified that it would do so “in any action * * * in any

court” in this state.

The current statute, by contrast, is worded more

modestly. As discussed above, ORS 60.731(1) refers only to

service. It omits any reference to jurisdiction, and certainly

any reference to “complete jurisdiction.” Indeed, because

ORS 60.731(1) provides that the registered agent be authorized

to accept only that process that is “required or permitted”

by another law, it makes clear that ORS 60.731(1)

is not itself a source of jurisdiction, as Kahn concluded the

counterpart to section 6 of the 1903 act was.

b. Changing due process limitations on jurisdiction

As discussed above, in 1856 and again in 1882,

the United States Supreme Court recognized that foreign

corporations that appointed an agent to receive service of

process impliedly consented to the state court’s jurisdiction.

St. Clair, 106 US at 356; The Lafayette Insurance Co., 59

US (18 How) at 407. Implied consent was one way of avoiding

the immunity from suit that foreign corporations otherwise

would enjoy outside the state of their incorporation. See

St. Clair, 106 US at 356. When Oregon enacted its registration

statute for foreign corporations in 1903, it joined

a growing number of states seeking to make foreign corporations

amenable to suit within their state. See Cahill,

Jurisdiction over Foreign Corporations, 30 Harv L Rev at

690 n 31 (listing Oregon as one of 37 jurisdictions that, by

1917, had adopted such statutes).

158 Figueroa v. BNSF Railway Co.

Oregon’s 1953 corporations act and the 1950 model

act on which it was based were written after the Court

decided International Shoe in 1945. That decision grounded

jurisdiction on the foreign corporation’s contacts within the

state instead of basing jurisdiction on fictions like implied

consent. After International Shoe, a state need not resort

to statutes, like Oregon’s 1903 act, that provided that service

on the foreign corporation’s registered agent would lead

to “complete jurisdiction” over the corporation. Given that

shift in understanding, it should come as no surprise that

the 1950 model corporation act adopted by Oregon in 1953

omitted any reference to service conferring jurisdiction over

a foreign corporation. That is, International Shoe provides a

complete explanation for the shift in wording between the

1903 and the 1953 corporate registration statutes.

c. Equivalent provisions for domestic and foreign

corporations

A third contextual clue points in the same direction.

As noted, Oregon’s 1953 act requires both domestic and

foreign corporations to appoint a registered agent. It also

defines, in provisions that are essentially identical, the function

that the registered agent serves for both domestic and

foreign corporations. The 1953 act provides that a corporation’s

registered agent, whether appointed by a domestic or

by a foreign corporation, “shall be an agent of such corporation

upon whom any process, notice or demand required or

permitted by law to be served upon the corporation may be

served.” ORS 60.731(1) (foreign corporations); ORS 60.121(1)

(domestic corporations).

Because a state already has jurisdiction over

domestic corporations, there is no need to require a domestic

corporation to appoint a registered agent in order to obtain

jurisdiction over the corporation, nor is there any reason to

assume that, in appointing such an agent, a domestic corporation

impliedly consents to jurisdiction. It follows that,

when the 1953 Oregon legislature required that registered

agents appointed by domestic corporations be authorized to

receive “any process, notice or demand required or permitted

by law to be served upon the corporation,” it presumably

did so for the sole purpose of having an easily identifiable

Cite as 361 Or 142 (2017) 159

person within the state upon whom process could be served.

Unless the model act and the Oregon legislature intended to

require an unnecessary act, requiring a domestic corporation

to appoint a registered agent for receipt of service does

not constitute consent to jurisdiction.

The same terms that apply to domestic corporations

in ORS 60.121(1) apply to foreign corporations in ORS

60.731(1). Ordinarily, we assume that, when the legislature

uses the same terms throughout a statute, those terms have

the same meaning. PGE v. Bureau of Labor and Industries,

317 Or 606, 611, 859 P2d 1143 (1993); accord ORS 60.714(1).13

That is, we assume that the 1953 legislature intended that

ORS 60.731(1) would serve the same purpose for foreign corporations

that ORS 60.121(1) serves for domestic corporations.

Both statutes require foreign and domestic corporations

to designate a person upon whom process “required or

permitted by law to be served upon the corporation may be

served.” If the legislature intended that appointing a registered

agent pursuant to ORS 60.731(1) would constitute consent

to jurisdiction while appointing a registered agent pursuant

to ORS 60.121(1) would not, it picked an odd way of

saying so. Rather, the more reasonable inference from that

context is that, under the 1953 act, neither a domestic nor a

foreign corporation consents to jurisdiction by appointing a

registered agent for service of process.

For the reasons discussed above, the text and the

context of ORS 60.731(1) persuade us that the 1953 Oregon

legislature required domestic and foreign corporations to

designate a registered agent only so that there would be an

easily identifiable person on whom any process required or

permitted by law to be served on the corporation could be

served. The legislature did not intend that, in appointing a

registered agent, a foreign corporation also would impliedly

consent to the jurisdiction of the Oregon courts.

13 ORS 60.714(1) provides that a foreign corporation authorized to do business

in Oregon shall have the same rights and obligations as a domestic corporation,

except as otherwise provided. In this instance, ORS 60.731(1) does not

provide that appointing a registered agent for a foreign corporation will have a

different effect than the same act will have for a domestic corporation. Rather, it

provides that the act will have the same effect. Given ORS 60.714(1), we interpret

the effect of complying with ORS 60.731(1) the same way that we interpret the

effect of complying with ORS 60.121(1).

160 Figueroa v. BNSF Railway Co.

C. Legislative history

There is little Oregon-specific history for the 1953

corporations act. We know that, in 1951, the Oregon State

Bar committee on corporation law was studying the ABA’s

1950 Model Business Corporation Act. Oregon State Bar,

Committee Reports 11 (1951). The committee hoped to present

“a draft of a Revised Corporation Code” to the 1952 Bar

Convention. Id. We also know that, in 1953, the Oregon legislature

adopted the Oregon Business Corporation Act based

on the ABA’s model act. Beyond that, there are no records

of the legislative proceedings that led to the adoption of the

1953 Oregon Business Corporation Act.

Previously, this court has looked to the comments to

the model act to determine the legislature’s intent in enacting

the Oregon Business Corporation Act. See Meyer, 272

Or at 536 & n 5 (looking to that source); cf. Datt v. Hill,

347 Or 672, 680, 227 P3d 714 (2010) (considering, as legislative

history, the comments to a uniform act that Oregon

adopted).14 We follow that course here. Section 11 of the

model act requires domestic corporations to “have and continuously

maintain” a registered office and a registered

agent. American Law Institute, Model Business Corporation

Act § 11 at 12 (revised 1950). Section 13 provides that the

registered agent appointed by a domestic corporation “shall

be an agent of such corporation upon whom any process,

notice or demand required or permitted by law to be served

upon the corporation may be served.” Id. at 13. The comment

to those sections explains:

“Any notice or process required or permitted by law may

be served upon the registered agent (Section 13). The

name and address of the initial agent must be stated in the

articles of incorporation (clause (j) of Section 48) and any

14 The Model Business Corporation Act was initially drafted in 1946 and

revised in 1950. Ray Garrett, Model Business Corporation Act, 4 Baylor L Rev

412, 424-25 (1952). The revised version of the act was published initially in 1950

and republished with comments by the American Law Institute in 1951. Id. We

rely on those comments, which would have been available to the 1953 Oregon

legislature. We note that the comments to the model act were supplemented when

a three-volume annotated edition of the act was published in 1960. See American

Bar Foundation, Model Business Corporation Act Annotated (1960). Although the

supplemented comments are consistent with our conclusion, they would not have

been available to the 1953 legislature. For that reason, we do not rely on them.

Cite as 361 Or 142 (2017) 161

change of the name or address of the agent must be filed

with the Secretary of State (Section 12). Failure to appoint

and maintain such an agent subjects the corporation to

involuntary dissolution (clause (d) of Section 87).”

Id. at 12.

The comment to sections 11 and 13 is brief. As the

committee that drafted the act noted, the primary function

of the comments is to “explain the interrelations of [the]

Sections to other Sections of the Model Act, with a minimum

of editorial comment.” Id. at x (preface). The committee

explained that it “consider[ed] that in all other respects

the provisions speak for themselves.” Id. Taking the committee

at its word, we conclude from the text of sections 11

and 13 and the comment to them that the purpose of requiring

domestic corporations to appoint and maintain a registered

agent was to provide an easily identifiable person

upon whom process could be served. Nothing in the text of

those provisions or the comment suggests that, by requiring

domestic corporations to appoint a registered agent for service

of process, the corporation consented to jurisdiction.

The model act imposes the same requirements on

foreign corporations. Section 106 requires that foreign corporations

authorized to transact business in a state “have

and continuously maintain” in that state a registered office

and a registered agent. Id. at 92-93. Section 108 provides for

foreign corporations, as section 13 provided for domestic corporations,

that the registered agent so appointed “shall be

an agent of such corporation upon whom any process, notice

or demand required or permitted by law to be served upon

the corporation may be served.” Id. at 94. As with domestic

corporations, the comment on those sections is brief. It

states: “A foreign corporation is required to designate and

maintain a registered office and agent in the State (Section

106) for service of process (Section 108).” Id. at 91.

The comment identifies the same purpose for

requiring foreign corporations to appoint a registered agent

that it does for domestic corporations—foreign corporations

are required to designate a registered agent “for service

of process.” We draw two inferences from that comment.

First, if domestic corporations do not impliedly consent to

162 Figueroa v. BNSF Railway Co.

jurisdiction by appointing a registered agent, then neither

do foreign corporations. Second, the only reason that the

comment identifies for requiring foreign corporations to

designate a registered agent is “for service of process.” The

comment does not say that appointing a registered agent in

a state constitutes implied consent to jurisdiction.

As we read the comments to the model act, they

support and are consistent with the conclusion that we draw

from the text and context of Oregon’s Business Corporation

Act—appointing a registered agent for service of process

serves the same purpose for foreign corporations that it

serves for domestic corporations: It designates an easily

identifiable person upon whom service may be made. It does

not constitute implied consent to jurisdiction.



* * *



15 In the trial court, plaintiff did not contend, in response to BNSF’s motion

to dismiss for lack of general jurisdiction, that the trial court could exercise specific

jurisdiction over BNSF. As in Barrett, we express no opinion on whether the

failure to raise specific jurisdiction in the trial court forecloses plaintiff from

doing so when this case returns to that court. The parties have not briefed that

issue in this court, and we leave the issue initially to the trial court.

Considering the text of ORS 60.731(1) together with

its context and history, we conclude, as a matter of state law,

that the Oregon legislature did not intend that appointing a

registered agent pursuant to that subsection would constitute

consent to the jurisdiction of the Oregon courts. For the

reasons set out above and in Barrett, the trial court erred in

ruling that it had general jurisdiction over BNSF.15

Peremptory writ to issue.

WALTERS, J., concurring.

Giving effect, as I must, to the court’s decision in

Barrett v. Union Pacific Railroad Co., 361 Or 115, __ P3d __

(2017), I concur in the court’s decision in this case.

Brewer, J., joins in this concurring opinion.