                     REVISED JUNE 7, 2012
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                           February 14, 2012

                                       No. 11-60360                          Lyle W. Cayce
                                                                                  Clerk

ITL INTERNATIONAL, INCORPORATED, doing business as Mars
Caribbean and Central America, formerly doing business as Master Foods
Interamerica; MARS, INCORPORATED,

                                                  Plaintiffs-Appellants
v.

CAFÉ SOLUBLE, S.A.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                            USDC No. 1:10-CV-00477


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       This case arises out of a commercial dispute between Mars, Inc. and its
subsidiary ITL International, Inc. (collectively, “Mars” or “Plaintiffs-Appellants”)
and Mars’s former Nicaraguan distributor, Café Soluble, S.A. (“Café Soluble” or
“Defendant-Appellee”). Mars seeks a declaratory judgment stating, primarily,
that it is not liable to Café Soluble for terminating the importation and

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                            No. 11-60360

distribution agreement between the parties, notwithstanding Nicaraguan law
that may impose penalties for such termination. Café Soluble moved to dismiss
the complaint for lack of personal jurisdiction. Mars responded that Café
Soluble has sufficient contacts with Mississippi for purposes of specific
jurisdiction because it received twelve shipments of Mars’s products F.O.B.
Gulfport, Mississippi between 2008 and 2010. The district court dismissed the
complaint, holding that (1) Café Soluble was subject to the court’s jurisdiction
under Mississippi’s long-arm statute, (2) Café Soluble had purposeful contacts
with Mississippi, and (3) Mars’s claims are sufficiently related to those
Mississippi contacts, but that (4) asserting jurisdiction over Café Soluble would
not be fair and reasonable.1
       After the appeal of this case was briefed, another panel of this court issued
an opinion in ITL International, Inc. v. Constenla, S.A.2 In that case, Mars
brought suit in the same Mississippi district court that we are reviewing here,
seeking a declaration that it was not liable to Constenla, its Costa Rican
distributor, despite Costa Rican law to the contrary. The panel in that case held
that (1) Constenla fell under Mississippi’s long-arm statute, and (2) Constenla
had purposeful contacts with Mississippi, but that (3) Mars’s claims do not “arise
out of or relate to” those Mississippi contacts, stating:3
       Although the contract was partially performed in Mississippi, the
       dispute here does not arise out of or result from that partial
       performance. This dispute concerns only trademark claims4 and
       general contract issues—transfer, assignment, application, liability,


       1
         See Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002)
(setting out requirements for exercising specific jurisdiction).
       2
           No. 10–60892, 2012 WL 266987 (5th Cir. Jan. 31, 2012).
       3
           Id. at *5 (citations omitted).
       4
         Mars also brought trademark claims in the instant case, but it informed us in its reply
brief that it is no longer pursuing those claims.

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                                        No. 11-60360

       termination, interpretation—that have, at most, a superficial and
       highly attenuated connection to the minimal activity that took place
       in Mississippi. In fact, this lawsuit is oriented almost exclusively
       toward activity that has taken place or may eventually take place
       in Costa Rica, and nothing in the facts, claims, causes of action, or
       prayer sections of the complaint makes reference to Mississippi or
       to activity that took place there. This case is not about damaged
       goods delivered in Gulfport but rather about distribution in Costa
       Rica and associated contract and trademark issues. The contract
       claims present rather abstract questions of law that have no
       relation to passing the goods from plaintiffs to defendants in
       Gulfport. Indeed, plaintiffs allege no injury flowing from the
       transport of the goods, and neither party to the contract was a
       Mississippi resident when the contract was made or performed. . .
       . Whether the defendants took possession of the goods in
       Mississippi, Florida, or some other state makes no difference to the
       claims in this lawsuit. Partial performance in a state, without more,
       does not provide an adequate nexus with claims that do not arise
       out of or result from that performance.

       As the instant case is not distinguishable from Constenla in any material
respect, we hold that Mars’s claims do not arise out of or relate to Café Soluble’s
Mississippi contacts for purposes of specific jurisdiction.
       Mars also claims that the district court has general jurisdiction over Café
Soluble because Café Soluble accepted delivery of the twelve shipments at
Gulfport. Assuming that this contention was preserved below, we reject it
because “mere purchases, even if occurring at regular intervals” are insufficient
to support general jurisdiction.5
       Accordingly, we affirm the district court’s ruling that it lacks personal
jurisdiction over Café Soluble.6 The district court, however, dismissed Mars’s
contract claims with prejudice. Mars correctly insists that a dismissal “for lack



       5
           Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984).
       6
        See Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997) (court of appeals may affirm
on any ground supported by the record).

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                                      No. 11-60360

of jurisdiction” does not “operate[] as an adjudication on the merits”7 and thus
should have been without prejudice.8 We therefore reverse the district court’s
dismissal to the extent that it is with prejudice, and we remand with
instructions to amend the order to specify that the dismissal is without
prejudice.       Finally, we deny Mars’s motion for an international anti-suit
injunction against Café Soluble as moot.
       AFFIRMED IN PART; REVERSED IN PART; REMANDED.




       7
           Fed. R. Civ. P. 41(b).
       8
        American Realty Trust, Inc. v. Hamilton Lane Advisors, Inc., 115 Fed.Appx. 662, 666-
67 (5th Cir. 2004) (unpublished).

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