1Miss.Code Ann. § 13–3–57 (1972). 

 

2Miss.Code Ann. § 79–1–27 (1972). We note that during the life of this appeal, § 79–1–27

was repealed. See Miss.Laws 1987, ch. 486, § 17.05, eff. Jan. 1, 1988. 

United States Court of Appeals,

Fifth Circuit.

No. 85–4002.

Walter HERRLEY and Judith Sund Herrley, Plaintiffs–Appellants,

v.

VOLKSWAGEN OF AMERICA, INC., and Volkswagenwerk, A.G., Defendants–Appellees.

April 6, 1992.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

This case presents a question recurrent in the courts applying Mississippi law: Whether a

non-resident plaintiff may use Mississippi's long-arm statute1 and foreign corporations suit statute2

to hale corporations, which are not registered but merely doing businessin Mississippi, into its courts

in an action otherwise unrelated to the state. In 1984 we answered that question "no" in Smith v.

DeWalt Products Corp., 743 F.2d 277, 279 (5th Cir.1984). Because there has been no intervening

change in Mississippi law since Smith was decided, our answer in this case is controlled by Smith.

Accordingly, we AFFIRM the judgment of the district court dismissing the case for lack of personal

jurisdiction. 598 F.Supp. 690 (D.Miss.1984).

I

This case arises from a 1977 one-car accident in which the Herrleys' 1965 Volkswagen left

the road and rolled over. The accident occurred in the state of Florida, and the Herrleys were Florida

citizens at the time suit was commenced. In 1983, the Herrleys filed this product liability suit in the

United States District Court for the Southern District ofMississippi against Volkswagen of America,
 

3Miss.Code Ann. § 63–17–51 et seq. (1972 & Supp.1991). 

Inc. and Volkswagenwerk, A.G. The Herrleys attempted to serve process on the defendants through

the Mississippi Secretary of State pursuant to Mississippi's long-arm statute, Miss.Code Ann. §

13–3–57 (1972). Neither corporation is registered to do business in Mississippi, although both are

licensed as automobile manufacturers or dealers under the Mississippi Motor Vehicle Commission

Law.3

The defendants moved to dismiss for lack of personal jurisdiction and inadequate service of

process under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(4). The district court held that

Mississippi law did not provide for jurisdiction over non-resident defendants who are not registered

to do business in the state, for a cause of action occurring outside of Mississippi and brought by

non-resident plaintiffs. Therefore, the district court granted the motion and dismissed the case. The

Herrleys filed a timely appeal.

On April 30, 1985, after the briefs in this case had been filed, this court certified questions

central to this appeal to the Mississippi Supreme Court in Manookian v. A.H. Robins Co., Inc., 755

F.2d 1125 (5th Cir.1985). This case has been held in abeyance since then, awaiting the Mississippi

SupremeCourt's answer to the certified question in Manookian. That question remained unanswered

for six years, until the parties in Manookian reached a settlement in 1991. On July 10, 1991,

Manookian was dismissed by this court at the request of the parties, and the certified question was

withdrawn. The Herrleys' case has been revived following Manookian's dismissal, and the parties

have filed letter briefs.

II

 The Mississippi long-arm statute, Miss.Code Ann. § 13–3–57 (1972) 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 whol e 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. Such act or acts shall be deemed equivalent to the appointment by

such nonresident ofthe Secretary of State ofthe State ofMississippi, ... upon whomalllawful

process may be served.

The italicized language was added when the statute was amended by the Mississippi Legislature in

1980.

In Smith v. DeWalt Products Corp., 743 F.2d 277 (5thCir.1984), Smith, a Louisiana resident

who wasinjured while using a power saw in Louisiana, filed suit in a Mississippifederal court against

the manufacturer, DeWalt, a corporation domiciled in Pennsylvania, which was a division of Black

& Decker (U.S.), Inc., a Maryland corporation. This court affirmed the district court's dismissal for

lack of personal jurisdiction, holding that the "doing-business" provision of the Mississippi long-arm

statute is not available to non-resident plaintiffs. We noted that our interpretation was supported by

the 1980 amendment to the long-arm statute, which allowed a non-resident plaintiffto obtain service

of process upon a non-resident defendant who had committed a tort in whole or in part in Mississippi

against the non-resident plaintiff, but did not similarly amend the "doing-business" prong of the

statute. We stated:

Given the long-standing judicial construction of the long-arm statute to preclude its use by

non-resident plaintiffs, the legislature's decision not to amend the "doing-business" provision

of the statute at the same time it specifically extended the "tort" provision to non-resident

plaintiffs indicates a legislative intent that the "doing-business" provision is not available to

non-resident plaintiffs.

743 F.2d at 279.

Although several cases before the Mississippi Supreme Court in the last six years have

allowed nonresident plaintiffs greater access to Mississippi courts, we do not consider those cases

to have cast any serious doubt upon the correctness of our interpretation of the Mississippi long-arm

statute in Smith. For example, in Shewbrooks v. A.C. & S., Inc., 529 So.2d 557 (Miss.1988), the
Mississippi Supreme Court held that the Mississippi court had personal jurisdiction over a suit by

nonresident plaintiffs against eighteen foreign corporationsfor claims that arose outside Mississippi.

However, Shewbrooks did not discuss Mississippi's long-arm statute, and noted that none of the

defendants had raised a serious issue as to whether the court had personal jurisdiction. 529 So.2d

at 559. In Cycles, Ltd. v. W.J. Digby, Inc., 889 F.2d 612, 616–17 (5th Cir.1989), we held that

Shewbrooks neither construed nor expanded the reach of the Mississippi long-arm statute. See also

Mills v. Dieco, Inc., 722 F.Supp. 296, 298 (N.D.Miss.1989) (holding that Shewbrooks did not affect

the interpretation of Mississippi's long-arm statute).

Read v. Sonat Offshore Drilling, Inc., 515 So.2d 1229 (Miss.1987) and Williams v. Taylor

Machinery, Inc., 529 So.2d 606 (Miss.1988), which were cited by the Herrleys in their letter brief,

are not relevant to the issue before us, because both involve defendants who were qualified to do

businessin Mississippi and had resident agentsforservice of processin Mississippi. Read, 515 So.2d

at 1229; Williams, 529 So.2d at 608, 609. Moreover, the plaintiff in Read was a Mississippi

resident, and the court pointed out that the case did not involve the long-arm statute. 515 So.2d at

1231. In Read, the Court noted that under former § 79–1–27, Mississippi courts could obtain

personal jurisdiction over a foreign corporation not qualified to do businessin Mississippi, but found

doing businessin the state, "simply by serving process upon any agent of the corporation in the State

of Mississippi." Because Volkswagen was not served with process in Mississippi, Read disposes of

the Herrleys' argument that § 79–1–27 confers jurisdiction over Volkswagen. In Patton v. Mack

Trucks Inc., 556 So.2d 679 (Miss.1989), also cited by the Herrleys, the Mississippi Supreme Court

held that Mississippi's statute of limitations governed an action arising in Pennsylvania and brought

in Mississippi by Pennsylvania residents against a corporation doing business in Mississippi. Patton

did not address any issue regarding whether there was personal jurisdiction over Mack Trucks.

Our review ofMississippiSupreme Court decisionssince Smith reveals nothing that callsinto

question the correctness of our holding in Smith. We do not believe that a decision in this case should
be further delayed pending certification of the question to the Mississippi Supreme Court, especially

in view of its six-year silence in Manookian. The judgment of the district court is, therefore,

AFFIRMED.