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

                                                                            FILED
                                                                            April 8, 2008

                                       No. 07-60806                   Charles R. Fulbruge III
                                                                              Clerk

DALE CARTER, INC, doing business as CARTER APPRAISAL SERVICES

                                                  Plaintiff-Appellant
v.

SPECIALTY CLAIM SERVICES INC; SPECIALTY GROUP INC

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:07-CV-394


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Dale Carter, Inc., is incorporated in Arkansas and has its principal place
of business in Little Rock. It has a certificate of compliance issued by the
Mississippi Commissioner of Insurance stating that Carter “is authorized to
transact the business of adjusting company” in Mississippi. During the relevant
time period, it also had a license issued by the Mississippi Insurance
Department permitting Carter to “engage in the business of insurance in the
State of Mississippi.”


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60806

       Specialty Claims Services (“Specialty”), a Florida corporation, contracted
with a Mississippi windstorm underwriter’s claim administrator to help the
underwriter handle property claims after Hurricane Katrina. Specialty then
contracted with Carter for assistance with claim adjusting and independent
estimates. Carter filed a breach of contract claim in federal district court in
Mississippi. The district court granted Specialty and Specialty Group’s motion
to dismiss for lack of personal jurisdiction and denied Cater’s motion to amend
judgment or, alternatively, for relief from judgment. Carter appealed. The sole
issue on appeal is whether Carter counts as a “resident” under Mississippi’s
long-arm statute.
       “We review de novo a district court’s grant of a motion to dismiss for lack
of personal jurisdiction.”1 Carter argues that because it had a certificate of
compliance and license issued by the Mississippi Commissioner of Insurance, it
is a “resident” as defined by Mississippi’s long-arm statute. Specialty argues
that Carter’s failure to obtain a certificate of authority from the Mississippi
Secretary of State makes Carter a non-resident.
       Mississippi’s long-arm statute provides,
       Any nonresident person, firm, general or limited partnership, or any
       foreign or other corporation not qualified under the Constitution
       and laws of this state as to doing business herein, who shall make
       a contract with a resident of this state to be performed in whole or
       in part by any party in this state, or who shall commit a tort in
       whole or in part in this state against a resident or nonresident of
       this state, or who shall do any business or perform any character of
       work or service in this state, shall by such act or acts be deemed to
       be doing business in Mississippi and shall thereby be subjected to
       the jurisdiction of the courts of this state. Service of summons and




       1
       Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999) (citing Latshaw v.
Johnston, 167 F.3d 208, 210-11 (5th Cir. 1999)).

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       process upon the defendant shall be had or made as is provided by
       the Mississippi Rules of Civil Procedure.2

       As the text indicates, the long-arm statute consists of three independent
provisions: the contract, torts, and “doing business” prongs. The first and third
provisions apply here, as Carter did not file a tort claim. We have held that non-
residents contracting with or doing business with a non-resident cannot take
advantage of either the first or the third provisions of the long-arm statute.3
Specialty is a non-resident, so Carter must be a resident for long-arm
jurisdiction to apply.4 Specialty argues that to be a resident as defined by the
statute and to invoke jurisdiction under the statute, Carter must be qualified to


       2
           MISS. CODE ANN. § 13-3-57.
       3
         On its face, the language of the contract prong requires a non-resident to enter a
contract with a resident for the statute to apply. The “doing business” prong is not as clear,
but we have interpreted it similarly. See Smith v. Dewalt Prods. Corp., 743 F.2d 277, 279 (5th
Cir. 1984) (under the “doing business” prong of Mississippi’s long-arm statute, “although the
statute on its face does not preclude its use by non-resident plaintiffs, federal courts
interpreting Mississippi law have consistently held that a non-resident plaintiff cannot use its
provisions to obtain in personam jurisdiction over a non-resident defendant”). Since Smith,
the Mississippi legislature has amended the long-arm statute and deleted the “nexus text” that
was part of the statute when we decided Smith. The Mississippi courts, although recognizing
that the statute has changed since Smith, have not questioned its holding. See S. P. Transp.
Co. v. Fox, 609 So.2d 357, 360 (Miss. 1992) (discussing how all of the cases “who looked at the
point” have continued the nexus rule and citing Smith, then observing, “All of this has now
changed. Effective July 1, 1991, the legislature amended Section 13-3-57 and repealed the
nexus test.” The court goes on to find, “Southern Pacific claims as well a non-resident plaintiff
may not pursue ‘doing business’ non-resident defendants under the statute’s third prong. See
Smith v. DeWa;t Products Corp., 743 F.2d 277, 279 (5th Cir.1984) . . . . In view of the
disposition we make of the nexus/incident thereto issue, we need not address the point”
(emphasis added)). We have held, “Our review of Mississippi Supreme Court decisions since
Smith reveals nothing that calls into question the correctness of our holding in Smith.” Herrley
v. Volkswagen of Am., Inc., 957 F.2d 216, 219 (5th Cir. 1992).
       4
         Delgado v. Reef Resort Ltd., 364 F.3d 642, 644-45 (5th Cir. 2004) (“This court has, on
numerous occasions, interpreted the Mississippi statute to mean that non-residents may not
sue non-resident corporations doing business in Mississippi. . . . based on binding precedent
from this court the Mississippi long-arm statute does not permit Delgado, a resident of Florida,
to bring suit against Reef, a resident of Belize, despite the fact that Reef does business in
Mississippi.”). Carter does not argue that Specialty committed a tort against Carter.

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                                       No. 07-60806

do business in Mississippi, and that to be qualified Carter must have a
certificate of authority from the Mississippi Secretary of State.5 Section 79-4-
15.01 of the Mississippi Code provides, “A foreign corporation may not transact
business in this state until it obtains a certificate of authority from the Secretary
of State.”6
       Carter argues that authorization to conduct business by obtaining a
license and certificate of compliance is adequate to establish residency of a
business under the long-arm statute. In support of this argument, it points to
two other statutes under which licensure qualifies a corporation to do business
in Mississippi. In Northfield Insurance Co. v. Odom Industries, Inc., a federal
district court addressed Mississippi’s “door closing” statute that provides,
       “A foreign corporation transacting business in this state without a
       certificate of authority may not maintain a proceeding in any court
       in this state until it obtains a certificate of authority.”7

The defendant arguing against jurisdiction in Northfield urged that
       because . . . [plaintiff] is transacting business in Mississippi but is
       not a Mississippi corporation and does not possess a certificate of
       authority from the Secretary of State of Mississippi, then . . .
       [plaintiff] is precluded from bringing this action against . . .
       [defendant] in any court in this state.8

The court held the statute inapplicable to foreign insurers because


       5
         See St. Paul Fire & Marine Ins. Co. v. Paw Paw’s Camper City, Inc., 346 F.3d 153, 156
(5th Cir. 2003) (citing C.H. Leavell & Co. v. Doster, 211 So.2d 813-14 (Miss.1968)) (describing
the Mississippi Supreme Court’s test for whether foreign corporations may file suit against
nonresident defendants in Mississippi under the long-arm statute. The test in Doster asked
whether the corporation is a resident as defined by the long-arm statute and, to answer this
question, asked whether the foreign corporation was qualified to do business in the state).
       6
           MISS. CODE ANN. § 79-4-15.01(a).
       7
           119 F.Supp.2d 631, 632 (S.D. Miss. 2000) (quoting MISS.CODE.ANN. § 79-4-15.02).
       8
           Id. at 632.

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      the qualification and licensing of insurers in . . . [Mississippi] is
      regulated by and through the Mississippi Department of Insurance,
      not the office of the Secretary of State . . . and . . . [plaintiff], though
      not licensed by the Insurance Commissioner to conduct business
      generally, has been specifically authorized by the Insurance
      Commissioner to sell insurance in Mississippi on a nonadmitted
      basis.


In Northfield, the insurance company did not possess a license from the
Commissioner of Insurance but did have authorization from the Commissioner,
and the court held,
      Especially given that . . . [plaintiff, the insurance company] has been
      statutorily authorized to transact business in this state through
      specially licensed agents in defined circumstances, the court
      concludes that the door closing statute applicable to corporations
      generally, does not apply to . . . [plaintiff].9

      In Paw Paw’s Camper City, we addressed Mississippi’s “borrowing
statute,” which provided,
      “When a cause of action has accrued outside of this state, and by the
      laws of the place outside this state where such cause of action
      accrued, an action thereon cannot be maintained by reason of lapse
      of time, then no action thereon shall be maintained in this state;
      provided, however, that where such a cause of action has accrued in
      favor of a resident of this state, this state’s law on the period of
      limitation shall apply.”10

Interpreting the statute, we found that “[l]ike the borrowing statute, the
long-arm statute distinguishes between residents and nonresidents”11 and held
that the correct question in determining whether a corporation was a resident
of Mississippi under the borrowing statute was “whether a foreign corporation,

      9
          Id. at 633.
      10
           346 F.3d at 155 (quoting MISS.CODE ANN. § 15-1-65 (2002)).
      11
           Id.

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                                       No. 07-60806

with a valid certificate of authority or license to do business in Mississippi, [is]
a resident of Mississippi for the purpose of the borrowing statute.”12
      In another case, Herrley v. Volkswagen of America, Inc., however, the
district court held that licensure does not count as “qualification” under
Mississippi’s long-arm statute, and we affirmed Herrley’s holding.13 As Herrley
addresses licensing under the long-arm statute, it is similar to the present case
and informs our holding. In Herrley, non-resident plaintiffs who were injured
in Florida attempted to sue Volkswagen in Mississippi, arguing that Volkswagen
was a resident corporation in Mississippi.14 The district court held,


      The Plaintiffs argue . . . that by seeking and obtaining a license from
      the Mississippi Motor Vehicle Commission, that Volkswagen of
      America, Inc. has “qualified” to do business in Mississippi. Nothing
      in the Mississippi Motor Vehicle Commission Act, Miss. Code Ann.
      §§ 63-17-51, et seq. indicates any legislative intent to allow licensure
      under this Act to suffice for the qualification required by Section
      79-3-211. The Mississippi Motor Vehicle Commission Act does not
      provide for the appointment of an agent for service of process. It
      simply provides a licensing mechanism for automobile
      manufacturers, dealers, agents and representatives. Had the
      Mississippi Legislature intended licensing under this Act to serve
      the same function as qualification under Section 79-3-211,
      undoubtedly they would have said so.15

Just as Volkswagen had a license to do business in Mississippi but had not
obtained a certificate of authority from the Secretary of State or certified an
agent for process, Carter only has a license and a certificate of compliance.
Carter has not pointed us to any laws or regulations indicating that licensing

      12
           Id. (quotations omitted) (emphasis added).
      13
           598 F.Supp. 690, 691 (S.D. Miss. 1984), aff’d, Herrley, 957 F.2d at 219.
      14
           Id. at 694.
      15
           Id.

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and compliance with Mississippi’s insurance requirements requires appointment
of an agent. Under Herrley, Carter is not a “resident” as defined by the long-arm
statute.
      AFFIRMED.




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