IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,702
HEATH MERRIMAN, On Behalf of Himself
and all Others Similarly Situated,
Appellant,
v.
CROMPTON CORPORATION, UNIROYAL CHEMICAL COMPANY, INC.,
UNIROYAL CHEMICAL COMPANY LIMITED, FLEXSYS NV,
FLEXSYS AMERICA L.P., BAYER AG, and BAYER CORPORATION,
Appellees.
SYLLABUS BY THE COURT
1. Whether jurisdiction exists is a question of law.
2. The plaintiff bears the burden of establishing personal jurisdiction over the defendants.
3. Where the issue of personal jurisdiction is decided pretrial on the basis of the pleadings, affidavits, and other written materials, any factual disputes must be resolved in the plaintiff's favor and the plaintiff need only make a prima facie showing of jurisdiction. An appellate court reviews a trial court's dismissal for lack of personal jurisdiction under a de novo standard.
4. A two-step analysis is required to determine if a Kansas court has personal jurisdiction. First, the court must determine if Kansas statutes or case law provide a basis for the exercise of jurisdiction over a particular defendant. Second, if statutory and other requirements are satisfied, the court inquires if the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth Amendment to the United States Constitution.
5. There are two broad types of personal jurisdiction which a state can exercise: specific and general. Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant's actions within a forum state. The Kansas long arm statute, K.S.A. 60-308(b), defines when Kansas exercises specific jurisdiction over a nonresident defendant. General jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.
6. A foreign corporation applying for authority to do business in Kansas under K.S.A. 2005 Supp. 17-7301(b)(7) expressly consents to personal jurisdiction.
7. K.S.A. 17-7307(c) provides a basis for general jurisdiction over foreign corporations.
8. The Due Process Clause is not violated when jurisdiction over a foreign corporation is based upon the corporation's express written consent to jurisdiction under K.S.A. 2005 Supp. 17-7301(b)(7).
9. When general jurisdiction is asserted pursuant to K.S.A. 17-7307(c) and the corporate defendant has not consented to jurisdiction, due process requires continuous and systematic general business contacts to sustain a forum's exercise of jurisdiction.
10. In order for general jurisdiction to lie, a foreign corporation must have a substantial amount of contacts with the forum state. In assessing contacts with a forum, courts consider (1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings, or bank accounts; and (4) the volume of business conducted in the state by the corporation.
11. The Kansas long arm statute, K.S.A. 60-308(b), is to be construed liberally to assert jurisdiction over nonresident defendants to the full extent allowed by due process.
12. Jurisdiction can be obtained under K.S.A. 60-308(b)(2) if either physical or economic injury occurs in the state as a result of a negligent act outside the state.
13. A price-fixing conspiracy may be a tortious act under K.S.A. 60-308(b)(2).
14. K.S.A. 60-308(b) provides jurisdiction over any person who in person or through an agent or instrumentality does any act falling under the provisions of the long arm statute. If one conspirator commits acts in Kansas in furtherance of the conspiracy and that conspirator falls under the act, jurisdiction can be obtained as to all conspirators.
15. When specific jurisdiction is asserted under the Kansas long arm statute, K.S.A. 60-308(b), due process requires that the nonresident defendant have certain minimum contacts with the forum in order for the exercise of jurisdiction to be constitutional. In considering whether the corporation's minimum contacts meet this standard, courts should consider the quality and nature of the defendant's activity in determining whether it is reasonable and fair to require defense in the forum, rendering jurisdiction consistent with traditional notions of fair play and substantial justice. Due process requires a demonstration that the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws.
16. Under the stream of commerce theory of jurisdiction, amenability to suit does not blindly travel with the chattel through the stream of commerce, but is limited by foreseeability. The foreseeability that is critical to a due process analysis is not the mere likelihood that a product will find its way into the forum state. Rather, it is that the defendant's conduct and connection with the forum state are such that the defendant should reasonably anticipate being haled into court there.
17. The stream of commerce theory can be applied to provide a basis for personal jurisdiction in a case alleging price fixing.
18. It is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Rather, to satisfy due process foreseeability, a defendant's contacts must proximately result from actions by the defendant that create a substantial connection with the forum.
19. Because the conspiracy theory gives one subject to personal jurisdiction in a forum the ability to avoid in advance being subject to suit in the forum, it satisfies the fundamental due process requirement that a defendant can be involuntarily subjected to the personal jurisdiction of a forum only if the defendant purposefully avails itself of the privilege of conducting activities in the forum state.
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 24, 2005. Appeal from Pratt district court; ROBERT J. SCHMISSEUR, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded. Opinion filed November 9, 2006.
Rex A. Sharp, of Gunderson, Sharp & Walke, L.L.P., of Prairie Village, Kansas, argued the cause, and Isaac L. Diel, of Law Offices of Isaac L. Diel, of Bonner Springs, Kansas, Michael Flannery, of The David Danis Law Firm, P.C., of St. Louis, Missouri, Alexander E. Barnett, of The David Danis Law Firm, P.C., of New York, New York, Bonny E. Sweeney and Alreen Haeggquist, of Lerach Coughlin Stoia & Robbins, LLP, of San Diego, California, and Brian J. Robbins, of Robbins Umeda & Fink, LLP, of San Diego, California, were with him on the briefs for appellant.
D. Jarrett Arp, of Gibson, Dunn & Crutcher, LLP, of Washington, D.C., argued the cause, and James D. Slear, of the same firm, Stephen E. Robison and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, LLC, of Wichita, Kansas, William D. Iverson and Michael J. Fanelli, of Covington & Burling, of Washington, D.C., and Daniel G. Swanson, of Gibson, Dunn & Crutcher, LLP, of Los Angeles, California, were with him on the briefs for appellees Flexsys America L.P. and Flexsys NV.
James A. Walker, of Triplett, Woolf & Garretson, LLC, of Wichita, Kansas, Amy W. Ray, William V. O'Reilly, and J. Andrew Read, of Jones Day, of Washington, D.C., and Brian K. Grube, of Jones Day, of Cleveland, Ohio, were on the briefs for appellees Bayer AG and Bayer Corporation.
Bill V. Hampton, Jr., of Hampton & Hampton, of Pratt, Kansas, Robert R. Eisenhauer, of Johnston & Eisenhauer, of Pratt, Kansas, and Ian Simmons and Benjamin G. Bradshaw, of O'Melveny & Myers, LLP, of Washington, D.C., were on the briefs for appellees Crompton Corporation, Uniroyal Chemical Company, Inc., and Uniroyal Chemical Company Limited.
The opinion was delivered by
LUCKERT, J.: Plaintiff Heath Merriman, a Kansas resident, appeals from the trial court and Court of Appeals' determinations that Kansas courts could not exercise personal jurisdiction over foreign corporations which allegedly conspired to fix the price of chemicals used in the out-of-state manufacturing of two tires which Merriman purchased from a Kansas retailer. The plaintiff argues these rulings should be reversed because the lower courts failed to recognize general jurisdiction over the foreign corporations, erroneously applied the Kansas long arm statute, and erroneously determined that the exercise of jurisdiction over these defendants would violate due process.
We reverse and remand.
Allegations Regarding Jurisdiction
The plaintiff alleges he, and others similarly situated, paid an inflated price for tires purchased in Kansas because of an out-of-state price-fixing agreement entered into by the defendants. The plaintiff seeks class certification and treble damages pursuant to the Kansas Restraint of Trade Act, K.S.A. 50-101 et seq., as well as attorney fees, costs, and other relief.
The various defendants, collectively known as "The Big Three" of rubber-processing chemical producers, separate into three groups of affiliated corporations: (1) Crompton Corporation which owns Uniroyal Chemical Company, Inc., and Uniroyal Chemical Company Limited; (2) Flexsys NV which owns Flexsys America, L.P.; and (3) Bayer AG which owns Bayer Corporation.
Collectively, the defendants are the principal suppliers of most of the rubber- processing chemicals sold in the United States. During the class period (1994 to present), plaintiff alleges that the defendants' sales of rubber-processing chemicals for use in tire manufacturing in the United States totaled more than $2.7 billion. The defendants sell the chemicals to major tire manufacturers such as Pirelli, Goodyear, Michelin, and Bridgestone. After the tires are manufactured, the tires proceed through the distribution stream, eventually arriving in retail facilities such as the one in Pratt, Kansas, where the plaintiff purchased two tires. It is undisputed that the tires purchased by the plaintiff were manufactured outside of Kansas; there is no allegation that the chemicals used in those tires were sold in Kansas.
However, the plaintiff estimates that the defendants derived revenues greater than $10.8 million from Kansas sales of tires containing their chemicals. The plaintiff also alleges that a portion of the revenues earned by the defendants are derived from chemical sales to a Goodyear manufacturing facility located in Topeka. According to records as part of the limited discovery allowed by the court relating to the jurisdiction issue, Flexsys shipped approximately $23 million of chemicals to the Topeka facility from 1998 to 2002 and Crompton shipped approximately $9.85 million in chemicals between 1994 and 1998. Bayer also sold products to the Topeka Goodyear facility during a portion of the class period. The plaintiff did not purchase Goodyear tires.
The plaintiff also alleges that Bayer Corporation had other contacts with the state of Kansas through its Animal Health Division, which develops and markets veterinary pharmaceuticals and insecticides in Shawnee, Kansas, and its Crop Science Division, which conducts research on crop science products in Stillwell, Kansas. These activities are unrelated to plaintiff's claim regarding overpriced rubber-processing chemicals.
The plaintiff also alleges that the defendants consented to jurisdiction in Kansas through registering to do business or by conducting business in Kansas. None of the defendants is incorporated or headquartered in Kansas. Crompton, Uniroyal Chemical Company, Inc., Flexsys America, L.P., and Bayer Corporation are incorporated and headquartered in other states. Uniroyal Chemical Company Limited is a Delaware domesticated corporation incorporated in the Bahamas and does not have a headquarters; Bayer AG and Flexsys NV are incorporated and headquartered in other countries. Based upon plaintiff's allegations, it appears that several, but not all, of the defendants are authorized to do business in Kansas pursuant to K.S.A. 2005 Supp. 17-7301 or have designated registered agents for service pursuant to K.S.A. 2005 Supp. 17-6202.
Arguing that these allegations did not provide a basis for personal jurisdiction, the defendants filed motions to dismiss, alleging: (1) the tires which plaintiff purchased were not manufactured in Kansas and, therefore, there was no basis for specific jurisdiction in Kansas; (2) Kansas does not recognize general jurisdiction; and (3) due process would not allow the exercise of jurisdiction over the defendants. The motions to dismiss were granted after the district court allowed discovery regarding jurisdiction. The district court held that "[t]he nexus between Mr. Merriman's purchase of automobile tires in Pratt, Kansas, that were not manufactured in Kansas allegedly overpriced because of an alleged conspiracy made far from Kansas between foreign corporations not otherwise subject to Kansas Court jurisdiction is simply too remote to justify jurisdiction over this claim."
The Court of Appeals affirmed, holding that Kansas does not recognize the concept of general jurisdiction and that due process did not allow the exercise of specific jurisdiction under the long arm statute. Merriman v. Crompton Corporation, No. 91,702, unpublished opinion filed June 24, 2005.
We granted the plaintiff's petition for review.
Analysis
Whether jurisdiction exists is a question of law. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005). The plaintiff bears the burden of establishing personal jurisdiction over the defendants. Where, as here, the issue of personal jurisdiction is decided pretrial on the basis of the pleadings, affidavits, and other written materials, any factual disputes must be resolved in the plaintiff's favor and the plaintiff need only make a prima facie showing of jurisdiction. An appellate court reviews a trial court's dismissal for lack of personal jurisdiction under a de novo standard. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 893, 56 P.3d 829 (2002).
In the context of this class action, only the claims of the named class representative, not absent members of a potential class, are examined to determine jurisdiction. Barry v. Mortgage Servicing Acquisition Corp., 909 F. Supp. 65, 73 (D.R.I. 1995) ("It is the named class representative . . . whose claims must satisfy this test in order for the Court to have personal jurisdiction over [defendant] in this action."). See generally Calagaz v. Calhoon, 309 F.2d 248, 253 (5th Cir. 1962) (under class action rule, court must have in personam jurisdiction over named individual representative of class); Selman v. Harvard Medical Sch., 494 F. Supp. 603, 613 n.6 (S.D.N.Y.), aff'd 636 F.2d 1204 (2d Cir. 1980) (named class representative must satisfy all jurisdictional prerequisites before class action can go forward). Thus, our inquiry is focused solely upon the jurisdictional allegations related to the plaintiff's purchase of tires which were not manufactured in Kansas and, therefore, do not directly involve the sale of rubber-processing chemicals in Kansas.
Generally, a two-step analysis is required to determine if a Kansas court has personal jurisdiction. First, the court must determine if Kansas statutes or case law provide a basis for the exercise of jurisdiction over a particular defendant. Second, if statutory and other requirements are satisfied, "the court inquires if the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth Amendment to the United States Constitution." Kluin, 274 Kan. at 894; see Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 413-14, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 [1878]); 1 Casad & Richman, Jurisdiction in Civil Actions § 3.1, p. 222 (3d ed. 1998).
In Helicopteros, 466 U.S. at 414-16, the United States Supreme Court recognized a State could exercise two broad types of personal jurisdiction: specific and general. Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant's actions within a forum state. 466 U.S. at 414. The Kansas long arm statute, K.S.A. 60-308(b), defines when Kansas exercises specific jurisdiction over a nonresident defendant. Kluin, 274 Kan. at 896. General jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose. Helicopteros, 466 U.S. at 415; see Kluin, 274 Kan. at 895.
In this case, plaintiff alleges specific and general jurisdiction as alternative bases for personal jurisdiction over the defendants.
ISSUE 1: Does Kansas Recognize General Jurisdiction Over Foreign Corporations Doing Business in Kansas?
The United States Supreme Court has recognized that a State can assert personal jurisdiction over a corporation which is organized under the laws of another State (i.e, a "foreign" corporation) even when the cause of action does not arise out of or relate to the foreign corporation's activities in the state. E.g., Perkins v. Benguet Mining Co., 342 U.S. 437, 446-48, 96 L. Ed. 485, 72 S. Ct. 413, reh. denied 343 U.S. 917 (1952). Despite the United States Supreme Court's recognition of this concept, the Court of Appeals held and the defendants argue that Kansas does not recognize general jurisdiction as a basis for asserting jurisdiction over a corporate defendant. In reaching this holding, the Court of Appeals relied upon this court's decision in Kluin. Plaintiff contends that the Court of Appeals misread Kluin and erred in reaching this holding.
In Kluin, a Kansas resident purchased a motorcycle from an Oklahoma Suzuki dealer and returned to Oklahoma for warranty repairs. When he sued Suzuki in Kansas for breach of express and implied warranties and violation of the Kansas Consumer Protection Act, he argued Kansas had jurisdiction over Suzuki under the Kansas long arm statute, K.S.A. 60-308(b). The district court dismissed the case for lack of personal jurisdiction and improper venue.
On appeal, Kluin argued that Suzuki had transacted business in Kansas by, among other things, entering into contracts with at least five authorized dealerships. Noting that Kluin's injuries did not arise from these contracts, the Kluin court observed that these factual allegations, therefore, related to an allegation of general jurisdiction. However, the only basis on which Kluin had asserted jurisdiction was the Kansas long arm statute, K.S.A. 60-308(b), which the court held was limited to cases of specific jurisdiction. 274 Kan. at 896.
The Kluin court rejected general jurisdiction under the Kansas long arm statute, ruling that "there must be a nexus between the transaction of business and the alleged claim" in order to support jurisdiction under the long arm statute, K.S.A. 60-308(b). 274 Kan. at 896. Because Kluin's claims did not arise out of Suzuki's alleged contacts with Kansas, there was no such nexus. 274 Kan. at 898-99.
The defendants in this case argue the Kluin court rejected general jurisdiction as a basis for a Kansas court to exercise personal jurisdiction over a foreign corporation. In large part, defendants build their argument on two aspects of the decision. First, the court limited the issue to whether "there is jurisdiction under K.S.A. 60-308(b), the Kansas long arm statute." Kluin, 274 Kan. at 894. The defendants remove this sentence from its context when they argue that it was a statement that Kansas does not recognize general jurisdiction. The Kluin court was merely phrasing the argument presented by the plaintiff and that argument was limited to application of the Kansas long arm statute. Kluin, 274 Kan. at 888, 894, 896. The second aspect of the decision which the defendants cite is the Kluin court's reliance on a Court of Appeals' decision in Three Ten Enterprises, Inc. v. State Farm Fire & Cas. Co., 24 Kan. App. 2d 85, 89, 942 P.2d 62, rev. denied 262 Kan. 970 (1997), a case which defendants argue rejected general jurisdiction as an available basis for jurisdiction over a foreign corporation. In discussing the Three Ten decision, the Kluin court stated:
"[T]he Court of Appeals held that the district court erred in applying the doctrine of general jurisdiction. It noted that 'general jurisdiction' is a due process concept which 'does not excuse a plaintiff who invokes the jurisdiction of Kansas state courts from satisfying the statutory test for long arm jurisdiction under [K.S.A.] 60-308(b).' 24 Kan. App. 2d at 89. The Three Ten court observed that the legislature could have enacted a statute providing for general jurisdiction, but it has not done so. Therefore, [the long arm statute of] K.S.A. 60-308(b) does not provide for the exercise of general jurisdiction by Kansas courts. 24 Kan. App. 2d at 91." 274 Kan. at 896.
However, immediately after this discussion of Three Ten, the Kluin court noted: "Three Ten failed to argue jurisdiction under [K.S.A.] 40-218, and the Three Ten court did not address service under 40-218." Kluin, 274 Kan. at 896. The Kluin court then cited Novak v. Mutual of Omaha Ins. Co., 29 Kan. App. 2d 526, 530-33, 28 P.3d 1033, rev. denied 272 Kan. 1419 (2001), in which the Court of Appeals held Kansas courts have general jurisdiction over a foreign insurance company required under K.S.A. 40-218 to consent to service of process as part of its application for authority to transact business in Kansas.
By citing K.S.A. 40-218 and Novak, the Kluin court implicitly recognized that, while the long arm statute is a specific jurisdiction statute, other statutes might give rise to general jurisdiction. Moreover, the Kluin court did not explicitly deny the existence of general jurisdiction in Kansas. Hence, we do not read Kluin as holding that Kansas does not recognize general jurisdiction. Rather, it appears that this court has never explicitly rejected or recognized the doctrine of general jurisdiction over foreign corporations.
The plaintiff, using the decision in Novak as a springboard, argues we should recognize general jurisdiction as a basis for personal jurisdiction over foreign corporations and can do so under statutes which he argues are similar to the statute at issue in Novak, K.S.A. 40-218. K.S.A. 40-218 requires each foreign insurance company applying for authority to transact business in Kansas to file a consent for service of process to be accomplished through the Insurance Commissioner. In Novak, the insurer argued that K.S.A. 40-218 provided a mechanism for service but did not provide a basis for jurisdiction. Further, the insurer argued the plaintiffs' cause of action did not arise in Kansas and that jurisdiction must be predicated on the long arm statute, K.S.A. 60-308(b). The trial court agreed and dismissed for lack of personal jurisdiction. On appeal, the Court of Appeals reversed, noting that the long arm statute only covers certain situations, and when it does not apply, "resort must be had to the traditional bases of jurisdiction such as citizenship; domicile and residence; or consent, actual or implied." 29 Kan. App. 2d at 532. Novak held that where the insurer was present within Kansas, had been served with process while in Kansas, and had consented to jurisdiction under K.S.A. 40-218, the trial court had personal jurisdiction. 29 Kan. App. 2d at 533.
Although K.S.A. 40-218 does not apply in this case, the plaintiff suggests that a similar analysis applies to K.S.A. 2005 Supp. 17-7301 and K.S.A. 17-7307(c).
K.S.A. 2005 Supp. 17-7301
K.S.A. 2005 Supp. 17-7301 requires foreign corporations wishing to do business in Kansas to file an application for authority including
"an irrevocable written consent of the foreign corporation that actions may be commenced against it in the proper court of any county where there is proper venue by service of process on the secretary of state as provided for in K.S.A. 60-304, and amendments thereto, and stipulating and agreeing that such service shall be taken and held, in all courts, to be as valid and binding as if due service had been made upon an officer of the corporation."
Many courts have recognized that such consent statutes provide a basis for exercising general jurisdiction. E.g., Sondergard v. Miles, Inc., 985 F.2d 1389, 1393-96 (8th Cir. 1993) (South Dakota); Bane v. Netlink, Inc., 925 F.2d 637, 640 (3d Cir. 1991) (Pennsylvania); Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1200 (8th Cir. 1990) (Minnesota); Holloway v. Wright & Morrissey, Inc., 739 F.2d 695, 698 (1st Cir. 1984) (New Hampshire); Sternberg v. O'Neil, 550 A.2d 1105, 1109 (Del. 1988); Werner v. Wal-Mart Stores, Inc., 116 N.M. 229, 231-33, 861 P.2d 270 (Ct. App. 1993); Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421, 425-26 (S.D. 1985).
In general, the analysis of these decisions is based upon the general rule that, although parties may not waive subject matter jurisdiction, they may waive personal jurisdiction. Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 703, 72 L. Ed. 2d 492, 102 S. Ct. 2099 (1982). Additionally, these cases cite to United States Supreme Court decisions holding that a foreign corporation expressly consents to jurisdiction when it appoints an agent for service of process. See Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 170-71, 84 L. Ed. 167, 60 S. Ct. 153 (1939); Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93, 95, 61 L. Ed. 610, 37 S. Ct. 344 (1917); Restatement (Second) of Conflict of Laws § 44 (1969).
As to K.S.A. 2005 Supp. 17-7301, the defendants argue that the statute contains no jurisdictional language and deals only with the required content of a foreign corporation's application to do business in Kansas. The defendants construe K.S.A. 2005 Supp. 17-7301(b)(7) as merely a "consent . . . to accept as valid service the service of process upon the secretary of state for 'actions' that may be commenced against them." Noting that service of process and jurisdiction are distinct legal concepts, the defendants assert that consent to one does not equal consent to the other.
In fact, K.S.A. 2005 Supp. 17-7301(b)(7) requires a foreign corporation applying for authority to do business in Kansas to consent not only to service of process on the Secretary of State, but also to consent "that actions may be commenced against it in the proper court of any county where there is proper venue by service of process on the secretary of state as provided for in K.S.A. 60-304." (Emphasis added.) Different statutory provisions require the designation of a registered agent for the service of process. See K.S.A. 2005 Supp. 17-6202 (requiring designation of registered agent); K.S.A. 2005 Supp. 17-7301(b)(5) (requiring application to do business in Kansas to include name of registered agent).
Read together, these statutory provisions make clear that K.S.A. 2005 Supp. 17-7301(b)(7) requires, as plaintiff suggests, a consent to personal jurisdiction. Thus, a foreign corporation applying for authority to do business in Kansas under K.S.A. 2005 Supp. 17-7301(b)(7) expressly consents to personal jurisdiction and K.S.A. 2005 Supp. 17-7301(b)(7) provides a statutory basis for jurisdiction. The issue remains whether such consent, by itself, satisfies due process. Since not all of the defendants have consented to jurisdiction under K.S.A. 2005 Supp. 17-7301(b)(7), we will discuss alternative grounds for satisfying the first step of the analysis – finding a statutory or case law basis for jurisdiction – before considering whether the exercise of general jurisdiction under the statutes satisfies due process.
K.S.A. 17-7307(c)
Additionally, the plaintiff argues that Kansas specifically recognized general jurisdiction by adopting K.S.A. 17-7307(c), which provides:
"Any person having a cause of action against any foreign corporation, whether or not such corporation is qualified to do business in this state, which cause of action arose in Kansas out of such corporation doing business in Kansas, or arose while such corporation was doing business in Kansas, may file suit against the corporation in the proper court of a county in which there is proper venue."
Two cases applying this provision support plaintiff's argument. Most recently, a federal district court concluded Kansas has chosen to exercise general jurisdiction over foreign corporations by adopting K.S.A. 17-7307(c). Scharff v. CRST, Inc., 2002 WL 922131 (D. Kan. unpublished opinion filed May 2, 2002). In Scharff, the plaintiff was injured in an auto accident in California. He filed suit in Kansas against the defendants, three Iowa corporations which were doing business in Kansas at the time of the accident. The defendants moved to dismiss for lack of personal jurisdiction, arguing that the accident in California was unrelated to any business they conducted in Kansas. However, the plaintiff asserted jurisdiction under K.S.A. 17-7307(c), not the long arm statute. While the defendants had not applied for a certificate of authority to do business in Kansas pursuant to K.S.A. 2005 Supp. 17-7301, the court found they were "doing business" in Kansas such that K.S.A. 17-7307(c) was satisfied. Scharff, at *2-3.
The Scharff court cited Novak, and a case discussed therein, State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165 (Mo. 1999). In Holliger, K-Mart relied on th