     Case: 11-60767       Document: 00512172989         Page: 1     Date Filed: 03/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 13, 2013

                                       No. 11-60767                        Lyle W. Cayce
                                                                                Clerk

ANDREA IRVIN,

                                                  Plaintiff–Appellant
v.

SOUTHERN SNOW MANUFACTURING, INCORPORATED,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             U.S.D.C. No. 5:10-CV-196


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       Andrea Irvin appeals the district court’s dismissal of her case for want of
personal jurisdiction over Southern Snow Manufacturing, Inc., (“Southern
Snow”). We AFFIRM.
       Louisiana-based Southern Snow manufactures shaved-ice machines used
to create “snowballs.” It sells those machines and the accessories necessary to
make snowballs—such as flavored syrup, syrup bottles, bottle nozzles, disposable
cups, and plastic spoons—to customers residing in all states in the United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-60767

States, as well as internationally. Mississippi has, in some years, been the third
largest market for Southern Snow products.
      Southern Snow sold a snowball machine to a Louisiana resident who
bought, paid for, and took possession of the machine in Louisiana. Several years
later, the purchaser sold the machine in Louisiana to Irvin and her husband,
both Mississippi residents, and the Irvins took it to Mississippi. Irvin later
purchased $369.20 worth of snowball accessories directly from Southern Snow.
No evidence suggests that these accessories are unique to Southern Snow’s
snowball machines.
      Irvin subsequently injured her hand while attempting to clean the
machine.    She sued Southern Snow in Mississippi state court, asserting
negligence, defective-design, and failure-to-warn claims.        Southern Snow
removed and filed a motion to dismiss for lack of personal jurisdiction. The
district court conducted an evidentiary hearing and granted the motion. Irvin
timely appealed.
      This court reviews de novo as an issue of law whether a district court may
properly exercise personal jurisdiction over a nonresident defendant. Clemens
v. McNamee, 615 F.3d 374, 378 (5th Cir. 2010). Normally, a plaintiff need only
make a prima facie showing of the defendant’s amenability to suit. Nuovo
Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 378 (5th Cir. 2002). Where,
as here, the district court conducts an evidentiary hearing, however, a plaintiff
must demonstrate that the exercise of jurisdiction is appropriate by a
preponderance of the evidence. See DeMelo v. Toche Marine, Inc., 711 F.2d 1260,
1271 n.12 (5th Cir. 1983). We review for clear error any factual findings
material to the district court’s ruling. Loumar, Inc. v. Smith, 698 F.2d 759, 763
(5th Cir. 1983).
      “A federal district court sitting in diversity may exercise personal
jurisdiction over a nonresident defendant if (1) the long-arm statute of the forum

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                                       No. 11-60767

state confers personal jurisdiction over that defendant; and (2) [the] exercise of
such jurisdiction by the forum state is consistent with due process under the
United States Constitution.”1 Ruston Gas Turbines, Inc. v. Donaldson Co.,
9 F.3d 415, 418 (5th Cir. 1993). The inquiry generally turns on the facts of each
case, but precedent provides some well-known principles as guidance. See
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86 (1985). The longstanding
“constitutional touchstone remains whether the defendant purposefully
established ‘minimum contacts’ in the forum State . . . ‘such that he should
reasonably anticipate being haled into court there.’”               Id. at 474 (citations
omitted); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-
92 (1980).
       There are two types of personal jurisdiction: general and specific. See, e.g.,
Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir. 2006). Irvin
suggests that the district court could have exercised general jurisdiction over
Southern Snow. She waived this argument by failing to raise it clearly and
develop it adequately in her opening brief.2 See, e.g., Tharling v. City of Port
Lavaca, 329 F.3d 422, 430 (5th Cir. 2003). This case therefore turns on specific
jurisdiction.



       1
         The Mississippi long-arm statute is not coextensive with due process. See ITL Int’l,
Inc. v. Constenla, S.A., 669 F.3d 493, 497 n.14 (5th Cir. 2012). The district court concluded
that Irvin satisfied that statute’s “tort prong,” which confers personal jurisdiction over
nonresidents who “commit a tort in whole or in part in [Mississippi] against a resident or
nonresident.” Miss. Code Ann. § 13-3-57. There is no real dispute that the tort prong applies
here. See Gross v. Chevrolet Country, Inc., 655 So. 2d 873, 879 (Miss. 1995) (“For purposes of
the tort prong . . . , ‘a tortious act outside the state which causes injury within the state
confers jurisdiction on the courts of that state.’” (citation omitted)).


       2
         In any case, the record does not suggest that Southern Snow’s contacts with
Mississippi are “so ‘continuous and systematic’ as to render [it] essentially at home” and
amenable to suit there under a general jurisdiction theory. Goodyear Dunlop Tires Operations,
S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (citation omitted).

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      The exercise of specific jurisdiction requires establishing three elements.
First, the plaintiff must show that the defendant has established minimum
contacts with the forum state by purposely directing its activities toward the
forum state or purposefully availing itself of the privilege of conducting activities
there. See Burger King, 471 U.S. at 474-76. “This ‘purposeful availment’
requirement ensures that a defendant will not be haled into a jurisdiction solely
as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral
activity of another party or a third person.’” Id. at 475 (internal citations
omitted). “Jurisdiction is proper, however, where the contacts proximately result
from actions by the defendant himself that create a ‘substantial connection’ with
the forum State.” Id. (emphasis removed) (citation omitted).
      Second, the plaintiff’s claims must “relate[] to or ‘arise[] out of’ [the]
defendant’s contacts with the forum.” Helicopteros Nacionales de Colombia, S.A.
v. Hall, 466 U.S. 408, 414 (1984). In other words, there must be a “nexus
between the defendant[’s] contacts with Mississippi and the plaintiff[’s] [tort]
claim[].” ITL International, 669 F.3d at 500. Finally, the exercise of jurisdiction
must comport with “traditional notions of fair play and substantial justice.” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation and quotation marks
omitted); see also Burger King, 471 U.S. at 476-77.
      Although the particular machine that injured Irvin arrived in Mississippi
through the plaintiff’s own unilateral acts, Irvin contends that Southern Snow’s
business contacts with other Mississippi customers are sufficient to support
specific jurisdiction under a “stream-of-commerce” theory, citing Petroleum
Helicopters, Inc. v Avco Corp., 804 F.2d 1367 (5th Cir. 1986), and Bean Dredging
Corp. v. Dredge Technology Corp., 744 F.2d 1081 (5th Cir. 1984). “The stream-of-
commerce theory permits the exercise of personal jurisdiction over a nonresident
defendant that ‘delivers its products into the stream of commerce with the
expectation that they will be purchased by consumers in the forum State.’”

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Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 273 (5th Cir. 2006) (quoting
World-Wide Volkswagen, 444 U.S. at 298).                In Irvin’s view, the fact that
Southern Snow sold snowball machines directly to other Mississippi residents
should reasonably have put it on notice that it could be “haled into court” in
Mississippi for a lawsuit over a defective snowball machine.3
       We need not decide the outer limits of the stream-of-commerce
jurisdictional theory here. We assume without deciding that Irvin demonstrated
that Southern Snow purposefully availed itself of the privilege of doing business
in Mississippi by making a substantial percentage of its overall sales to
customers in that state, satisfying the first element of specific jurisdiction. See
Choice Healthcare, Inc. v. Kaiser Found. Health Plan of Colo., 615 F.3d 364, 373
(5th Cir. 2010) (reasoning that deriving revenue from a “sales or distribution
network” designed to nationally market products “is the quid pro quo for
requiring the defendant to suffer a suit in the foreign forum” (citations omitted)).
       The second element proves more problematic, as Irvin fails to show that
her claims “arose out of” or “relates to” Southern Snow’s Mississippi contacts.
As an initial matter, the nexus between those contacts and the machine that
injured Irvin is too attenuated to support personal jurisdiction based on an
“arose-out-of” theory. Southern Snow sold the machine to a Louisiana customer
and had no knowledge that, years later, Irvin unilaterally transported it into
Mississippi. Moreover, although Irvin suffered injury in Mississippi, that fact
alone does not make Southern Snow amenable to suit in Mississippi. See
Seiferth, 472 F.3d at 273 (“Once a product has reached the end of the stream [of
commerce] and is purchased, a consumer’s unilateral decision to take a product
to a distant state, without more, is insufficient to confer personal jurisdiction
over the manufacturer or distributor.” (emphasis added)).

       3
        The Supreme Court declined to address a similar issue in Helicopteros Nacionales, 466
U.S. at 415 n.10.

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        We also cannot say on this record that Irvin’s claims sufficiently “relate to”
Southern Snow’s Mississippi contacts. Although Irvin points to the allegedly
large figure of sales by Southern Snow to various Mississippi-based customers,
this    number      includes     sales     of   syrup    and     other    snowball-making
accessories—which did not cause Irvin’s injuries—and no evidence in the record
allows a comparison of the amount of sales attributable to these types of
accessories versus the sales attributable to actual snowball machines. Indeed,
on this record, we have no basis to determine how many snowball machines
Southern Snow sends outside of Louisiana in general, or to Mississippi in
particular. See Bean Dredging, 744 F.2d at 1085 (considering, for the purpose
of its personal jurisdiction analysis, the volume of products—of the type that
caused the plaintiff’s injury—that was placed into the stream of commerce by the
defendant).4
        Counsel for Irvin conceded at oral argument that these absent facts bear
heavily on the exercise of personal jurisdiction. Without them, she cannot
satisfy her burden to show a sufficient nexus between her injury and Southern
Snow’s Mississippi contacts.5          Accordingly, the district court appropriately
concluded that it could not exercise personal jurisdiction over Southern Snow,
and we need not decide the viability of Irvin’s broad stream-of-commerce theory
in the abstract.
        AFFIRMED.




        4
         We therefore need not and do not decide whether a claim may “relate to,” but not
“arise out of,” a defendant’s forum contacts. Helicopteros Nacionales, 466 U.S. at 415 n.10.
        5
         We therefore have no occasion to consider whether the exercise of personal jurisdiction
in Mississippi would comport with traditional notions of fair play and substantial justice. See
ITL International, 669 F.3d at 501 n.41 (refusing to reach the third prong of the specific
jurisdiction inquiry after finding that the second prong had not been satisfied).

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