Registration-to-Do-Business Is Not Consent to Personal Jurisdiction in North Dakota (and Prior Dismissals Without Prejudice Do Not Create Jurisdictional Waiver)

1. Introduction

Egan v. Metropolitan Life Ins. Co., 2026 ND 140 is a North Dakota Supreme Court decision clarifying three recurring issues in modern personal-jurisdiction practice—particularly important in mass-tort and asbestos litigation where plaintiffs often sue many defendants in a single forum.

Parties and posture. Frank W. Egan (plaintiff) sued Union Carbide Corporation (a foreign corporation) and others for injuries allegedly caused by asbestos exposure. Egan previously sued Union Carbide in a separate action (Case No. 09-2021-CV-02438) but stipulated to dismiss his claims against Union Carbide without prejudice. He later filed this new action. Union Carbide answered and affirmatively pleaded lack of personal jurisdiction, then moved to dismiss on that basis.

Key issues. The case presented three central questions:

  1. Whether a foreign corporation’s registration to do business and appointment of a registered agent in North Dakota constitutes consent to personal jurisdiction.
  2. Whether failing to assert lack of personal jurisdiction in a prior lawsuit that ended in a dismissal without prejudice bars the defense in a later, new lawsuit.
  3. Whether negotiating and stipulating to a dismissal in a prior case constitutes “transacting business” or purposeful availment sufficient to satisfy due process for personal jurisdiction.

2. Summary of the Opinion

The North Dakota Supreme Court affirmed dismissal for lack of personal jurisdiction over Union Carbide. The Court held:

  • Registration alone is not enough: Registering to do business in North Dakota and maintaining a registered agent, by itself, does not constitute consent to jurisdiction and does not establish the continuous and systematic contacts required for general jurisdiction.
  • No waiver carried over: A defendant’s failure to raise lack of personal jurisdiction in a prior lawsuit that was dismissed without prejudice does not waive the defense in a subsequent new action.
  • No purposeful availment from dismissal negotiations: Negotiating a stipulated dismissal of a lawsuit filed by the plaintiff does not amount to purposeful availment of the forum and cannot satisfy due process.

3. Analysis

A. Precedents Cited

The Court’s analysis is built on a familiar jurisdictional framework—North Dakota precedent on personal jurisdiction, U.S. Supreme Court due process doctrine, and comparative authority addressing consent-by-registration and waiver.

1) Core North Dakota jurisdiction framework

  • Larson v. Dunn, 474 N.W.2d 34 (N.D. 1991): The Court relied on Larson for two foundational propositions: courts require jurisdiction to enter valid judgments; and personal jurisdiction is satisfied when a litigant has notice and sufficient forum connection to make defense fair. Larson also supports the key distinction that, unlike subject-matter jurisdiction, personal jurisdiction can be waived/consented to because it protects an individual due process interest.
  • Ensign v. Bank of Baker, 2004 ND 56, 676 N.W.2d 786: Ensign provides the decision’s principal North Dakota articulation of due process limits (minimum contacts; “traditional notions of fair play and substantial justice”), the appellate standard of review (de novo legal conclusions; clear-error factual findings), and the burden framework (plaintiff must make a prima facie showing once jurisdiction is challenged).
  • Beaudoin v. S. Tex. Blood & Tissue Ctr., 2005 ND 120, 699 N.W.2d 421: Beaudoin is used for the general vs. specific jurisdiction distinction and for the purposeful-availment principle (no jurisdiction based on unilateral activity of others).
  • Rodenburg v. Fargo-Moorhead Young Men's Christian Ass'n, 2001 ND 139, 632 N.W.2d 407, quoting Wessels, Arnold & Henderson v. Nat'l Med. Waste, Inc., 65 F.3d 1427 (8th Cir. 1995): These authorities are cited for the specific-jurisdiction requirement that the litigation must “arise out of” or “relate to” the defendant’s forum-directed activities.
  • Nelson v. Pine View First Addition Assoc., 2025 ND 9, 16 N.W.3d 172, and Hebron Brick Co. v. Robinson Brick & Tile Co., 234 N.W.2d 250 (N.D. 1975): These cases frame North Dakota’s two-step inquiry: (1) long-arm authorization under N.D.R.Civ.P. 4(b)(2), and (2) due process. Hebron Brick is especially important for confirming North Dakota intends its long-arm reach to extend to the constitutional limit.
  • Intercept Corp. v. Calima Fin., LLC, 2007 ND 180, 741 N.W.2d 209: Cited for the waiver rule embodied in N.D.R.Civ.P. 12(h)(1)—a personal-jurisdiction defense is waived if not made by motion or included in a responsive pleading (within the same action).

2) U.S. Supreme Court due process and consent authorities

  • Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982): Supplies the conceptual backbone: personal jurisdiction is an individual liberty interest, not merely state sovereignty, and thus can be waived.
  • Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985): Cited (via Beaudoin) for the purposeful-availment requirement and the prohibition against jurisdiction based on unilateral acts of the plaintiff.
  • Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), relying on Penn. Fire Ins. Co. of Philadelphia v. Gold Issue Min. & Mill. Co., 243 U.S. 93 (1917): Mallory is the modern focal point for consent-by-registration. North Dakota’s Supreme Court treated Mallory as permitting (constitutionally) a state to condition doing business on consent to general jurisdiction—if the state chooses to do so by statute. The crucial move in Egan is to distinguish North Dakota’s statutory scheme from Pennsylvania’s: North Dakota expressly disclaims that a registered agent “does not by itself create the basis for personal jurisdiction.”

3) Comparative authorities on consent, waiver, and “same-case” conduct

  • DeLeon v. BNSF Ry. Co., 426 P.3d 1 (Mont. 2018): Plays two roles. First, it provides an analytic framing: consent jurisdiction turns on whether the defendant knowingly waived due process protections. Second, it supports the Court’s statutory-notice logic—when a statute tells corporations registration does not create jurisdiction, corporations lack notice that registration would equal consent.
  • Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420: This is the linchpin for the waiver issue. Hager held that dismissal without prejudice does not affect rights/remedies, and in a later “new action” a defendant may raise defenses whether or not raised earlier—except for matters actually tried and preclusively resolved.
  • Magee v. Fla. Marine, LLC, 711 F. Supp. 3d 614 (E.D. La. 2024) and VGM Fin. Servs. v. Singh, 708 F. Supp. 2d 822 (N.D. Iowa 2010): These cases reinforce the Court’s key procedural boundary: waiver by conduct occurs in the same case, and a dismissal without prejudice generally renders the earlier action a “nullity” for purposes of binding admissions or forfeitures in a later action.

B. Legal Reasoning

1) The Court separates “service of process” mechanics from “jurisdiction” power

Egan’s principal theory was consent-by-registration: Union Carbide registered to do business and appointed a registered agent in North Dakota, so it should be subject to North Dakota jurisdiction. The Court’s response was statutory and conceptual:

  • North Dakota requires foreign corporations to obtain a certificate of authority (N.D.C.C. § 10-19.1-134) and maintain a registered agent (N.D.C.C. § 10-19.1-138), whose duty includes forwarding served process (N.D.C.C. § 10-01.1-14).
  • But North Dakota expressly provides: “The appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state.” (N.D.C.C. § 10-01.1-15).
  • The Court emphasized that these provisions ensure a reliable method of service; they do not expand the jurisdictional reach beyond the requirements of N.D.R.Civ.P. 4(b).

This distinction matters because Mallory addresses what due process permits a state to do. Egan addresses what North Dakota has actually done: even if Mallory allows a consent-by-registration regime, North Dakota has chosen a regime with an explicit anti-consent disclaimer.

2) Mallory does not create “automatic consent” absent a state-law hook

The Court treated Mallory v. Norfolk Southern Railway Co. as confirming that a state statute can constitutionally require consent to general jurisdiction as a condition of doing business, consistent with Penn. Fire Ins. Co. of Philadelphia v. Gold Issue Min. & Mill. Co.. But Egan’s argument failed because North Dakota has no comparable statutory condition; instead it has an explicit disclaimer (N.D.C.C. § 10-01.1-15).

In effect, the Court used Mallory as a ceiling (what might be allowed) rather than a floor (what must be inferred). Without a North Dakota statute establishing consent-by-registration, the Court would not infer consent contrary to the legislature’s express statement.

3) “Dismissal without prejudice” resets defenses in a later, new action

Egan argued Union Carbide waived lack of personal jurisdiction because it did not raise that defense in the first lawsuit. The Court rejected this by applying Hager v. City of Devils Lake: a dismissal without prejudice does not adjudicate rights and does not preclude new defenses in a later, separate action (other than issues actually litigated and determined).

The Court reinforced Hager with persuasive authority—DeLeon v. BNSF Ry. Co., Magee v. Fla. Marine, LLC, and VGM Fin. Servs. v. Singh—emphasizing that waiver is case-specific and that defendants remain free to assert jurisdictional objections in later suits.

4) Negotiating a stipulated dismissal is not “purposeful availment”

Egan attempted to fit the prior dismissal stipulation into North Dakota’s long-arm category of “transacting any business” under N.D.R.Civ.P. 4(b)(2)(A). The Court did not accept the premise and, critically, held that even if the long-arm prong were met, the due process prong still fails.

Due process requires the defendant to have “purposefully directed” activities at the forum (Ensign v. Bank of Baker) and prevents jurisdiction based on a plaintiff’s unilateral activity (Beaudoin v. S. Tex. Blood & Tissue Ctr. quoting Burger King Corp. v. Rudzewicz). A defendant’s agreement to dismiss litigation initiated by the plaintiff is reactive, not purposeful forum-seeking. Treating such negotiation as purposeful availment would allow plaintiffs to manufacture jurisdiction simply by suing in the forum and then pointing to the defendant’s effort to exit the case.

C. Impact

1) North Dakota rejects “consent-by-registration” under its current statutes

The decision firmly establishes that, in North Dakota, corporate registration and appointment of a registered agent are not enough—standing alone—to support general personal jurisdiction. This has immediate implications for plaintiffs suing foreign corporations in North Dakota in product-liability, mass-tort, and commercial disputes:

  • Plaintiffs must plead and prove traditional grounds for general jurisdiction (e.g., a corporation being “at home”) or case-linked forum contacts supporting specific jurisdiction.
  • Defendants can rely on the statutory disclaimer (N.D.C.C. § 10-01.1-15) and N.D.C.C. § 10-19.1-143 to resist attempts to convert service/registration mechanics into jurisdictional consent.

2) Litigation strategy: dismissals without prejudice do not “freeze” defenses

By extending Hager v. City of Devils Lake into the personal-jurisdiction waiver context, the Court reduces incentives for tactical arguments that a defense was “lost” in a prior case that ended without prejudice. Practically:

  • Defendants are less likely to be penalized in later re-filed actions for not having raised every available defense in an earlier case that did not proceed to adjudication.
  • Plaintiffs considering dismissal-and-refile strategies should expect that jurisdictional defenses can be newly asserted in the refiled case.

3) “Purposeful availment” remains plaintiff-proof against forum manufacturing

The Court’s purposeful-availment holding is a strong guardrail: a defendant’s participation aimed at terminating litigation (e.g., negotiating dismissal) does not create the affirmative, forum-directed conduct due process requires. This prevents a circular theory of jurisdiction in which the act of defending (or trying to end) a lawsuit becomes the contact that justifies forcing the defendant to defend it.

4. Complex Concepts Simplified

  • Personal jurisdiction: The court’s power over a defendant. It requires a constitutionally adequate connection between the defendant and the forum state.
  • General jurisdiction: “All-purpose” jurisdiction—allows suit on any claim. Typically exists where the corporation is “at home” (commonly its state of incorporation and principal place of business). North Dakota adds that it requires a “high level of continuous and systematic contacts” (Beaudoin v. S. Tex. Blood & Tissue Ctr.).
  • Specific jurisdiction: “Case-linked” jurisdiction—only for claims arising out of or relating to the defendant’s forum-directed conduct (Rodenburg v. Fargo-Moorhead Young Men's Christian Ass'n).
  • Long-arm rule (N.D.R.Civ.P. 4(b)(2)): The state-law authorization to reach nonresidents. But even if the long-arm text covers the defendant, the Constitution must still permit it (Nelson v. Pine View First Addition Assoc.).
  • Minimum contacts / fair play and substantial justice: The due process test for whether it is fair to require the defendant to litigate in the forum (Ensign v. Bank of Baker).
  • Purposeful availment: The defendant must deliberately create ties to the forum; jurisdiction cannot be based on the plaintiff’s unilateral choices (Burger King Corp. v. Rudzewicz).
  • Consent / waiver: Because personal jurisdiction is a personal due process right, a defendant can give it up—either expressly or by failing to timely assert the defense in the same lawsuit (Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee; Intercept Corp. v. Calima Fin., LLC).
  • Dismissal without prejudice: The case ends without a decision on the merits; the plaintiff may refile, and (as emphasized in Hager v. City of Devils Lake) the parties’ rights and defenses are generally not impaired in the later, new action.

5. Conclusion

Egan v. Metropolitan Life Ins. Co., 2026 ND 140 consolidates three practical jurisdictional rules for North Dakota: (1) corporate registration and a registered agent are service mechanisms—not implied consent to personal jurisdiction—especially in light of N.D.C.C. § 10-01.1-15; (2) a defense not raised in a prior action dismissed without prejudice is not forfeited in a later refiled action under Hager v. City of Devils Lake; and (3) a defendant does not purposefully avail itself of North Dakota merely by negotiating dismissal of litigation the plaintiff chose to bring there.

The decision narrows attempts to expand North Dakota jurisdiction through procedural shortcuts (registration, reactive litigation conduct, or prior-case omission) and re-centers the inquiry on statutory text and constitutional first principles: notice, deliberate forum contacts, and fundamental fairness.