Background
Frank Egan filed an asbestos-exposure lawsuit against Union Carbide Corporation and other defendants, alleging the defendants caused asbestos to be placed into the stream of commerce and that he suffered injuries as a result. Union Carbide is a foreign corporation incorporated under New York law with its principal place of business in Texas. Egan had previously sued Union Carbide in an earlier North Dakota action (Case No. 09-2021-CV-02438), which was dismissed without prejudice by stipulation before Union Carbide raised any personal-jurisdiction defense.
In the present case, Union Carbide moved to dismiss for lack of personal jurisdiction. Egan advanced three theories in opposition: (1) Union Carbide consented to jurisdiction by registering to do business in North Dakota and maintaining a registered agent here; (2) Union Carbide waived its jurisdictional defense by failing to assert it in the prior lawsuit; and (3) Union Carbide subjected itself to specific jurisdiction by negotiating the stipulated dismissal of the earlier action.
The District Court of Cass County (Judge Steven E. McCullough) granted the motion and dismissed the case. Egan appealed to the North Dakota Supreme Court.
The Court’s Holding
The Supreme Court affirmed on all three grounds, resolving each of Egan’s theories against him. First, the court held that business registration in North Dakota does not constitute consent to personal jurisdiction. North Dakota’s business-corporation statutes contain an express disclaimer — N.D.C.C. § 10-01.1-15 — providing that the appointment or maintenance of a registered agent “does not by itself create the basis for personal jurisdiction” over a foreign corporation. Unlike the Pennsylvania scheme upheld in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), North Dakota has not conditioned permission to do business on consent to jurisdiction, and its statutes do not put foreign corporations on notice that registration amounts to such consent.
Second, relying on Hager v. City of Devils Lake, 2009 ND 180, the court held that a dismissal without prejudice leaves the parties’ rights unaffected. Because the prior action was dismissed without prejudice, it was treated as a nullity, and Union Carbide was free to raise any defense — including lack of personal jurisdiction — in the subsequent case regardless of whether it had done so before.
Third, the court rejected Egan’s argument that Union Carbide “transacted business” in North Dakota by stipulating to dismissal of the earlier lawsuit. Even assuming that negotiating a dismissal could constitute transacting business under N.D.R.Civ.P. 4(b)(2)(A) — a proposition Egan supported with no authority — the exercise of specific jurisdiction still requires that the defendant have purposefully directed its activities toward the forum state. Responding to litigation initiated by Egan does not satisfy the purposeful availment requirement of due process.
Key Takeaways
- Registering to do business in North Dakota and appointing a registered agent does not, by itself, constitute consent to general personal jurisdiction — North Dakota’s statutes expressly disclaim that effect, in contrast to states like Pennsylvania whose registration schemes were upheld in Mallory.
- A defendant’s failure to raise a personal-jurisdiction defense in an earlier lawsuit that was dismissed without prejudice does not waive that defense in a subsequent action; the dismissal renders the prior proceeding a nullity as to the parties’ rights and remedies.
- Negotiating the stipulated dismissal of a plaintiff-initiated lawsuit does not constitute purposeful availment of the forum state and cannot support specific personal jurisdiction under the Due Process Clause.
Why It Matters
This decision is significant for out-of-state companies doing business in North Dakota, particularly those defending mass-tort and products-liability claims. It confirms that routine corporate compliance — registering with the Secretary of State and maintaining a registered agent — carries no hidden jurisdictional risk in North Dakota, and it draws a clear line between the state’s approach and the consent-by-registration framework approved in Mallory. Defendants in multi-plaintiff or serial litigation also benefit from the court’s reaffirmation that a without-prejudice dismissal resets the procedural slate, allowing all defenses to be raised fresh in any refiled action.
For asbestos and other toxic-tort plaintiffs seeking to sue large national corporations in their home states, the ruling narrows available jurisdictional hooks: neither registration nor participation in negotiating an exit from prior litigation will suffice. Plaintiffs must identify genuine minimum contacts — continuous, systematic ties for general jurisdiction, or claim-specific purposeful availment for specific jurisdiction — before a North Dakota court can assert authority over a foreign defendant.