IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-SA-01259-SCT
LY NN FITCH, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, EX REL., THE STATE OF MISSISSIPPI AND COMMISSIONER OF REV ENUE HERB FRIERSON AND MISSISSIPPI DEPARTMENT OF REV ENUE

v. WINE EXPRESS INC., BOTTLE DEALS INC. AND GOLD MEDAL WINE CLUB

DATE OF JUDGMENT: 09/04/2018 TRIAL JUDGE: HON. JOHN S. GRANT, III TRIAL COURT ATTORNEYS: JAMES A. BOBO DAVID J. CALDW ELL JOEL W . HOW ELL, III COURT FROM W HICH APPEALED: RANKIN COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: OFFICE OF THE ATTORNEY GENERAL BY: JAMES A. BOBO KRISSY CASEY NOBILE DAVID J. CALDW ELL ATTORNEY FOR APPELLEES: JOEL W . HOW ELL, III NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 02/27/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BEAM, JUSTICE, FOR THE COURT: ¶1. The Mississippi D epartm e nt of R e v e n u e ( M DOR) and the Of f ice of the Attorney General o f the State of Mississippi f iled suit against W ine E xpress, Inc., Gold M edal W ine Club, and Bottle Deals, Inc., in the Chancery Court of Rankin County , Mississippi. The Statesought injunc t i v e relief , disgorgem e nt, m onetary r elief , attorney s’ f

ees, and punitive dam ages. Def

endants m oved f

o r dism i ssal c l aim i ng that M ississippi courts lack personal jurisdiction over D ef

endants. A f

t e r a h e aring on the m a tter, t he trial court granted Def endants’ m otion. ¶2. The State a

ppeals. W e f

i nd that the trial court erred by f inding that it lacks personal jurisdiction over the Def

endants.
FACTS AND PROCEDURAL HISTORY ¶3. In early 2017 , t h e A l c o h o l B e v erage Control (ABC) Division of the Mississippi Departm ent of Revenue and the Alcohol and Tobacco Enf o rcem ent Division of the Mississippi Attorney General’s Of f ice investigated the shipm ent o f wine and o ther alcoholic beverages into the state. Agents used com m on online search engines to search the websites of various Internet wine retailers. The investigation revealed that mo st Internet retailers

m ake it “im

possible” to place an order f or alcoholic beverages once it is disclosed that the shipm e nt would be to a location in Mississippi. T his, however, is not so f or the Def endants’ websites. In Decem

ber 2 017, the State sued the Def endants f or injunctive relief t o enf

orce the provisions of the “Local O ption Alcoholic B everage Control L aw.” See Miss. Code Ann. §§ 67-1-1 to -99 (Rev. 2012). ¶4. Pursuant to this statutor y s c h e me, Mississippi operates under a t hree-tier s y stem in which the State a cts as the wholesaler f or alcoholic beverages, m eaning Mississippi directly controls t he distribution a nd sale o f alcoholic beverages. Miss. C ode Ann. § 67-1-41 (Rev. 2012). Each m anuf

acturer ships its alcoholic b e v e r a g e s to a centralized warehouse in

2Gluckstadt, Mississippi, which is owned by the State. Fr o m there, the a lcohol is held in

bailm e nt by the State until ordered by privately h eld and perm itted retailer package stores. Miss. Code Ann. § 67-1-51 (Supp. 2019) (issuance of perm its). Once ordered, alcoh ol is then shipped by the State to individual package stores f or resale t o c o nsum ers who m ust purchase the alcohol while on the package store prem ises. Package store retailers m ay not ship or deliver alcohol to consum ers. Miss. Code Ann. § 67-1-83(1) (Rev. 2012) (“It shall also be unlawf

u l f or t he holder of any p ackage retailer’s perm it to sell any alcoholic beverages excep t b y d elivery in person to the purchasers at the place of business of the
perm ittee.”). ¶5. Mississippi law f

u rther provides as f

o llows:
It shall be unlawf

ul f or any person to m anuf

acture, distill, brew, sell, possess, im p ort i nto this state, export f rom the state, tran s p o r t , distribute, warehouse, store, s olicit, t ake order f o r, bottle, r ecti f

y , blend, treat, m ix or process any alcoholic b everage ex c e p t as authorized in this chapter. However, nothing contained herein shall prevent im porters, wineries and distillers of alcoholic beverages f

rom s t o r i n g s u c h a l c o h o l ic beverages in private bonded warehouses located within the State of Mississippi f or the u ltim ate u se and benef it of the Departm ent of

Revenue as provided in § 67-1-41. Miss. Code Ann. § 67-1-9(1) (Supp. 2019).
No alcoholic b everage inten d e d f o r sale or resale shall be im ported, s h ipped or brought into t his state f or delivery

to any person other than as provided in this chapter, or as otherwise provided by law f or native wines. Miss. Code Ann. § 67-1-41(3) (Rev. 2012). ¶6. Section 67-1-51, a s noted above, sets f orth the various perm its that m u st be obtained
f rom the State in order to engage in the posses s i o n , s a l e , and distribution of alcoholic beverages to adults. T he Def endants do not possess any o f the perm its required by state law.

3¶7. I n F e b r u a r y 2 0 1 8 , t h e S tate f iled a n am ended com

plaint f or i njunctive r e l i e f

, disgorgem ent, m o netary relief , attorney s ’ f

ees and punitive d am ages. 1 The State alleged that through the Def

endants’ interactive, com m e rcial web s i t es, they s old and directed the shipm e nt of thousands of b o t t l e s o f alcohol into Mississippi. The State alleged that the dam ages are t he unpaid sales t axes and excise taxes due in relation to the ta x a b l e illegal transaction and the unrealized wholesale m arkup. ¶8. The Def

endants separately f

iled mo t i o n s t o d i s mi s s b a sed o n a lack of personal jurisdiction under Mississippi R ule of Civil Procedure 1 2 ( b )(2), but the g rounds f or dism issal
i n each m otion were the sam e. T he Def endants stated that they are incorporated in N e w York or Calif

ornia with no phy sical presence or place o f business in Mississippi. Further, all the purchases m ade by t he buy ers were m ade online. In each t ransaction, the Def endants received, processed, f

inalized, and com

pleted the sales orders in their places of business in
New York or Calif

o rnia. And the Def

endants contend that alcohol purchases by consum ers in Mississippi were m ade F.O.B. (Free on Board), and title to the goods passed to the buy ers
at the tim e and place that the goods lef t the Def endants’ respective prem ises located outside the state of

Mississippi. 2

1 T h e S tate f

iled a m o tio n t o f

ile a seco n d am en d ed co m p l ain t o n Ju l y 3 0 , 2 0 1 8 ; b u t th at m o t io n w as n o t iced f

o r h earin g o n th e sam e d ate t h at th e co u rt co n clu d ed it d id n o t h av e p erso n a l j u risd ictio n . T h eref o re, it d id n o t issu e a ru lin g o n th e m o tio n to am en d

. 2 G o ld M ed al’s sales co n tracts p ro v id e in p ertin en t p art as f o llo w s: T i tle to , an d o w n ersh ip o f , all w in e p asses f

ro m seller to b u y er in th e S t ate o f C a lif o rn i a, an d b u y er tak es all resp o n sib ility f o r s h i p p in g th e w in e f

ro m C a lif o rn i a to h is o r h er h o m e s tate.

. . . . T h e b u y er is s o lely resp o n sib le f o r th e sh ip m en t o f w i n e a n d o th er g o o d s p u rch ased an d f o r d eterm i n i n g th e 4¶9. The State opposed the m otion s , a r g u i n g t h a t t h e D e f e n d a n t s a r e o perators of unlicensed virtual liquor sto r e s i n Mississippi. The State argued that the Def endants had intentionally decided t o direct a ctivities in Mississippi and to allow orders to be placed through their highly

interactive websites. ¶10. Bef

o r e t h e t r i a l c o u r t ruled on the m atter, the parties had conducted jurisdictionrelated discovery

. According to the State, the d iscovery r evea l e d t h a t t h e Def endants had sold and directed t he s hipm ent of t housands of bottles of alcoholic b everages into the State, prof iting m ore than $200,000. ¶11. On August 23, 2018, the trial court held a hearing on t he State’s m o tion to am end and

o n t h e D ef

endants’ m o tions f

or dism i ssal. The trial court entered an o rder granting th e Def endants’ m otion to dism i ss f or lack of personal jurisdiction. ¶12. The trial court reasoned as f ollows:

leg ality a n d tax /d u ty co n s eq u en ce o f h av in g th e w in e an d o th e r g o o d s sh ip p ed to th e ap p licab le d estin atio n . B o ttle D eal’s sales co n tracts lik ew ise p r o v id e as f o l lo w s: Y o u c e rtif

y th at it is leg al to sh ip alco h o l in to th e state an d co u n ty o f th e in ten d ed recip ien t an d th e recip ien t o f th is sh ip m en t is at least 2 1 y ears o f ag e an d m ay l eg ally p o sses alco h o l. Y o u ack n o w led g e t h a t title f o r y o u r p u rch ase tran sf ers f ro m o u r S y o sset w areh o u s e in t h e S tate o f N ew Y o r k

. We w ill th en arran g e f o r a co m m o n carrier sh ip m e n t o n y o u r b e h a lf

. Win e E x p r ess so ld its alco h o lic b ev erag es su b j ect to sim i lar term s: A l l alco h o l ic b ev erag es are so ld in Westch ester, N ew Y o rk an d title p asses to t h e b u y er i n N e w Y o rk

. We m ak e n o rep resen tatio n to th e leg al rig h t s o f an y o n e to sh ip o r i m

p o r t w i n es in to a n y s t ate o u tsid e o f N e w Y o rk

. T h e b u y er is so l ely resp o n sib le f

o r sh ip m en t o f a l co h o lic b ev erag e p r o d u c ts.

5This case i s a b o u t t he Unif orm Com m ercial Code

. . . . The [ c]ourt f inds in this p articular case t hat title to all these goods passed outside the state of Mississippi.

. . . [ U]nder t hese transactions, the buy ers t ook f u ll responsibility f or the shipm ent of the alcohol unto them selves f rom the point of sale in New York and Calif

ornia. . . .

. . . . Now, y es, [ the Def

endants] p robab l y d i d i t in contravention of Mississippi state law, and t hey ’re probably responsible f or it, b ut t h e buy er is solely responsible f

or the shipm ent of

wine under these contracts. ¶13. The State appeals f r om that ruling. The only question bef ore this Court is whether the trial court’s dism issal of the State’s case f or lack of p ersonal jurisdiction over the Def endants was proper. As will be explained, we f i nd that the trial court erred.
LAW AND ANALYSIS ¶14. “Jurisdictional issues are reviewed pursuant to a de novo standard of review.” Joshua
P r o p s . , LLC v. D1 Sports Holdings, LLC , 130 So. 3 d 1089, 1092 (Miss. 2014) (citing
McDaniel v

. Ritter , 556 So. 2d 303, 308 ( Miss. 1989)). P er s o n al jurisdiction over a nonresident def

endant is determ ined under a t wo-part inquiry

. Id. (citing Estate of Jones v. Phillips ex r el. P

hillips , 992 S o. 2 d 1131, 1137 (Miss. 2008)). The f irst inquiry is whether Mississippi’s long-arm statute conf ers personal jurisdiction o ver the nonresident def endant.
McDaniel , 556 So. 2d at 307 (citing Miss. Code Ann. § 13-3-57 (Supp. 1989)). If so, the second inquiry is w hether personal jurisdiction com ports w ith constitutional due process. Id.
at 308.
I. Mississippi’s Long-Arm Statute ¶15. Mississippi’s long-arm statute provides in pertinent part as f ollows:

6Any n onresident p erson, f irm , general or l im ited partnership, or a ny f oreign or other corporation not qualif ied under the Constitution and l aws of this state as to doing business herein, who shall m ake a contract with a resident of this state to be perf o r m e d i n whole or in part by any party in t his state, or who shall com m it a tort in whole or in part in this s tate against a r esident or nonresident of t his state, or who shall do any business o r perf orm any character of work or service in this state, shall by such act or acts be deem ed to be doing business in Mississippi and shall thereby be subjected to t h e jurisdiction of the courts of this state. Miss. Code Ann. § 13-3-57 (Rev. 2019). ¶16. The statute com

prises t hree ty

p e s o f c o n d u c t : t h e c o n t ract com ponent, the tort

com ponent, and the doing-business com ponent. Only o ne need be m et f or purposes of

the

statute. Sorrells v. R & R Custom Coach W orks, Inc . , 636 S o. 2d 668, 6 71 (Miss. 1994).
W h ile the State m aintains that all three a re m et in this instance, w e lim it our discussion to the doing-business com

ponent. ¶17. T h e S t a t e c ontends that the Def endants satisf

y this c o mp o n e n t b e c a u s e e a c h Def en d a n t operated and m aintained an interactive com m ercial website through which Mississippi consum ers could purchas e a l c o h o l , c a lculate shipping costs using Mississippi zip codes, and create accounts. ¶18. The D ef

e ndants m aintain that they do not m e e t this com

ponent because they do not do business in Mississippi as contem plated b y the statute. They have no phy sical presence in the state, no business perm its, no agents f or service of process, and t hey do not advertise in Mississippi. The Def

endants f urther contend that the sales transactions did not occur in Mississippi but were sold at their brick-and-m ortar s t o r es i n N ew York and Calif ornia through their websites. And the Def endants contend that in each transaction, they sold the

7a l c ohol F.O.B. 3 and title passed to the buy ers a t the tim e and place the goods lef t t h e Def endants’ prem ises. ¶19. The Def

endants rely on t he rulings in Peterson v . T e s t I nternational, E.C. , 904 F. Supp. 574, 579 (S.D. M iss. 1 995), and Roxco, Ltd. v. Harris Specialty Chem icals, Inc. , 133
F. Supp. 2d 911, 916-17 (S.D. Miss. 2000), in which the f ederal d istrict court f

ound that the def endant’s conduct did not satisf y the “ doing business” com ponent when it m erely m ailed letters or proposed contracts to Mississippi residents. ¶20. We f

i n d t h a t t h e c i r c u ms t a n c e s i n those cases are distinguish a b l e f r o m t h e

c i r c u mstances here. S

ee McDaniel , 556 So. 2 d at 3 08 (“Determ inations of whethe r a def endant is ‘doing business’ within the state proceeds on an ad hoc basis.” (citing Miss Cal 204, Ltd. v. Upchurch , 465 So. 2d 326, 330 (Miss. 1985))). ¶21. Section 13-3-57 is clear. By its plain term s, the statute applies to any corporation or
person “who shall do any business or perf orm any character of work or service in this state . . . .” Miss. Code Ann. § 13-3-57. ¶22. Each Def

endant in this instances o perates an interactive, com m ercial website through which Mississippi custom ers can purchase al c o h o l i c beverages. The purchases are m ade using the custom er’s credit c ard. Custom ers r eceive em ail conf irm ation of

their orders, as

3 F .O .B

. m ean s “f

ree o n b o ar d ” a n d i s a t erm o f art d ef in ed b y th e U n if

o rm C o m m ercial C o d e. U .C .C

. § 2

- 3 1 9 ( 1 ) (A m . L aw In st. & U n if

. L aw C o m m ’n ), Westlaw (d atab ase u n d ated S e p t. 2 0 1 7 )

. T h e U C C p ro v id es th at “w h en th e term is F .O .B

. th e p lace o f sh ip m en t, th e seller m

u st a t th at p lace sh ip t h e g o o d s in th e m an n er p ro v id ed in th is article

. . . a n d b e a r th e ex p en se an d risk o f p u ttin g th em in to th e p o s sessio n o f th e carrier[ .] ” U

. C .C

. § 2 -3 1 9 (1 )(a) (A m . L aw In st. & U n if

. L aw C o m m ’n ), Westlaw ( d atab ase u n d ated S ep t. 2 0 1 7 ). 8well as n otif ic a t i o n s o f s pecial of

f ers. Shipping costs are charged t o the custom er and are calculated using the custom e r’s zip code. ¶23. According to th e r e c o r d , f r o m Decem

b er 2014 to J a nuary 2018, Gold Medal had transacted with 225 Mississippi residents approxim ately 2,556 tim es, m aking approxim ately $181,821 in sales. From the y ear 2015 to 2017, W ine E xpress t ransacted with 69 Mississippi residents approxim ately 189 tim es, f or a pproxim ately $39,580 in sales. And f rom Decem

ber
2014 to October 2017, Bottle Deals transacted with 46 M ississippi residents approxim ately 51 tim es, f

or approxim ately $7,229 in sales. ¶24. W h ile none of the Def e ndants ma i n t a i ned a phy s ical presence in Mississippi at any
p o i n t, they nonetheless conducted business in Mississippi by m eans of t heir respe c t i v e websites, which gave them a virtual presence in Mississippi. Based on our revi e w o f t h e record, each Def

endant operated a v irtual s tore in Mississippi, and t hey are s ubject to personal jurisdiction in this state under Mississippi’s long-arm statute.
II. Due Process ¶25. Step two in the personal-jurisdiction analy sis asks whether adjudicating the claim s in

a Mississippi f

orum i s consistent wit h d u e p r ocess. “The Due Process Clause protects an individual’s liberty interes t i n n o t being subject to t he binding judgm ents of a f orum with which he has established no m eaningf ul ‘contacts, ties or relations.’” Burger K ing Corp. v. Rudzewicz , 471 U.S. 462, 471-72, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985) (quoting Int’l Shoe Co. v. Washington , 362 U.S. 310, 319 66 S. Ct. 154, 90 L. Ed. 95 (1945)).

9¶26. Jurisdiction m a y be general or specif ic. “General personal jurisdiction is appropriate

over a nonresident when no nexus exists between the def endant’s activities in the f orum state and the litigation, and the contacts with the state are ‘sy stem atic and continuous.’” D1 Sports Holdings, LLC

, 1 30 So. 3d at 1094-95 (citing Phillips , 992 So. 2d a t 1141). “Specif ic personal jurisdiction is e xercis e d o v er a nonresident when a nexus exists b etween the litigation and the activities within the state.” Phillips , 992 So. 2d at 1141. ¶27. W h en the p laintif

f alleges specif

ic jurisdiction, as the State does here, a three-prong

test m ust be satisf

ied: (1) whether the def

endant has m i nim

um c o n t acts with the f

orum state, i.e., w h e t her it p u rposely d irected its a ctivities toward the f orum state o r purposef ully availed itself of the privileges of conducting activities there; (2) whether the plaintif

f ’ s c a u se of action arises out of or results f rom the def endant’s f orum -related contacts; and (3) whether the exercise of personal jurisdiction is f

air and reasonable.”
Nordness v. Faucheux , 170 So. 3d 454, 464 (Miss. 2015) (quoting McFadin v. Gerber , 587 F.3d 753, 759 (5th Cir. 2009). Generally , “ the plaintif f has the burden of d em onstrating the
f irst two prongs[ ; i]f s atisf

ied, the burden s hif

ts to the [ nonresident] to prove t hat jurisdiction would be u nreasonable.” Miller v. Provident Advert. and Mktg., I n c. , 155 So. 3d 181, 191 (Miss. Ct. App. 2014) (citing Brayton Purcell, L L P v . Recordon & Recordon , 606 F.3d 1124, 1 128 (9th Cir. 2010), a brogated on other grounds by Axiom Foods, I nc. v . Acerchem Int’l, Inc. , 874 F.3d 1064 (9th Cir. 2017)).
1. Minim um contacts ¶28. Few contacts are required to establish specif ic jurisdiction. “Even a single purposef ul

contact is suf

f icient to satisf

y t he due process requirem ent of ‘m inim um contacts’ when the

1 0cause of action arises f rom the contact.” Thom

pson v. Chrysler Motor

s C o r p . , 755 F.2d 1162, 1172 (5th Cir. 1 985) (quoting McGee v. Int’l Life Ins. Co. , 355 U.S. 220, 2 23, 78 S.
Ct. 199, 2 L. Ed. 2d 223 (1957)). A nonresident d ef e n dant sim

ply m ust h ave “ ‘ f

air warning’ that a particular a ctivity m ight subject [ him or her] to the jurisdiction of a f oreign s overeign.” Burger King , 471 U.S. at 4 7 2 ( q u o t i n g Shaffer v. Heitner , 433 U.S. 186, 2 18, 97 S. Ct. 2569, 2587, 53 L. Ed. 2d. 683 (1977)); see also World-Wide V o lkswagen Corp. v. Woodson , 444 U.S. 286, 2 97, 1 00 S. Ct. 559, 62 L. E d. 2d 490 (1980) (“def endant’s conduct and connection w ith the f

orum State are such that he should reasonably an t i c ipate being haled into court there”). ¶29. The State contends t hat “m inim um contacts” exist because the D ef endants benef

itted
f inancially f

rom sales to Mississippi residents. The State m aintains that a nonresident def endant cannot escape jurisdiction by arguing that i t does not have e m ploy ees or an of

f ice
in the f orum s tate because “ specif ic jurisdiction m ay arise without the nonresident def endant’s ever stepping f

oot” in the f

orum state. Am . Cable Corp. v. T rilogy Com m c’ns,
Inc. , 754 So. 2d 545, 551 (Miss. Ct. App. 2000). Rather, “ [ i ]t is the purposef ulness of the decision that is im

portant and not the phy sical presence of the def endant in the state.” Id. ¶30. The Def

endants contend, however, that they did not deliberately engage in signif icant activities in Mississippi. They argue that they created n o continuing obli g a t i o n s between

t h e mselves and Mississippi residents b ecause the contracts were a ll f or one-tim e s a l e s . Moreover, the contracts specif i ed that title would pass to the buy ers at the tim e of the sale, and thus the buy ers were solely responsible f or any shipm ent.

1 1¶31. As the State p o ints out, almo s t a n y t h i n g

— i n c l u d i n g alcohol—can be purchased online. Cou r t s have applied dif f e ring test f

or e valuating w hen o nline activity c onstitutes

m inim um contacts w ith a f

o rum state: (I) the Zippo s l iding-scale test, 4 or (ii) the totality

- of

the-circum stances approach. 5 ¶32. This Court has n ot pronounced or adop t e d a s i n g l e t e s t

. I n M i n k v . AAAA Developm ent, LLC

, 190 F.3d 333 (5th Cir. 1999), the United States Court of Appeals f or the
Fif th Circuit adopted the test s et f o rth in Zippo Manufacturing Co. v. Zippo Dot Com , Inc. , 952 F. Supp. 1119, 1124 (W .D. Pa. 1997), explaining it as f o llows: The Z ippo decision categorized Internet u se into a spectrum of three areas. At the one end of t he spectrum , ther e a r e s i t u ations where a def endant clearly does business over the Internet by e n t e r i n g into contracts with residents of other states which “ involve t h e knowing and r epeated transm ission of com puter f iles over the Internet.

. . .” Zippo , 952 F

. Supp. at 1124.

. . . At the other e nd of the spectrum , there are situations w h e r e a def endant m erely establishes a passive website that does nothing m ore than advertise on the Internet. W ith passive websites, p ersonal jurisdiction is not appropriate. See id. (citing Bensusan Restaurant Corp., v. K ing , 937 F. Supp. 295 (S.D.N.Y. 1996), aff’d , 126 F.3d 25 (2d Cir. 1997)). I n the m i ddle of the s pectrum , there are situations w here a d ef endant has a w ebsite that allows a user to exchange inf orm ation with a host co mp u ter. I n this m iddle ground, “the exercise of jurisdiction is determ i ned by the level o f interactivity and com m ercial n ature of the exchange o f inf

orm ation that occurs on t he W ebsite.” Id. ( citing Maritz, Inc. v. Cybergold, Inc. , 947 F. Supp. 1328 (E.D. Mo. 1996)).
Mink , 190 F.3d at 336.

4 D eriv ed b y th e f

ed eral d istrict co u rt i n Zippo Manufacturing Co. v. Zippo Dot Com , Inc. , 952 F. Supp. 1119 (W .D. Pa. 1997).

5 A th ird test so m etim es u sed is th e C a ld er e f f e c t s t e s t , w h ich co m es f

ro m th e p reIn tern et case o f C

a ld er v. J o n es , 4 6 5 U .S . 7 8 3 , 1 0 4 S . C t. 1 4 8 2 , 7 9 L . E d . 2 d 8 0 4 (1 9 8 4 ).

1 2¶33. In Illinois v . H em i G roup L LC

, 622 F.3d 754 (7th Cir. 2 010), the United S tates Court of Appeals f

or the Seventh Circuit applied a totality -of

- the-circum stances test in h olding that personal jurisdiction in Illinois w as proper over a Native A m erican cigarette s e ller based in
New M exico. I n Hem i Group , Illinois sued an LLC f or selling c igarettes to Illinois residents
in v iolation of state l aw and f ederal l aw. Id. at 756. The f ederal d i s t r ict court denied the
LLC’s m otion to dism iss f or lack of personal jurisdiction, f i nd i n g t h a t the Internet transactions suf

f iced to establish jurisdiction in Illinois. I d. ¶34. Af f irm i ng the district court, the Seventh Circuit did n ot base its decision on Zippo ’s sliding-scale test, stating as f ollows:
W e reach the sam e conclusion under Zippo

. Z ippo ’ s sliding scale w as alway s just short-hand f

or determ ining whether a def endant had established suf f icient m inim um contacts w ith a f

orum to justif

y e x ercising personal jurisdiction over h i m i n the f

o rum state. But we think that the traditional due process inquiry . . . is not so dif

f icult to apply to cases involving Internet contacts that courts need som e sort of easier-to-apply categorical test.
Id. at 759. ¶35. Hem i Group , instead, f ound that the LLC expressly elected to do business in Illinois and “stood ready and willing to do business with Illinois residents[ , ]” and the LLC “in f act, knowingly

did do business with Illinois residents.” Id. at 758. ¶36. Here, whether under t he Zippo sliding-scale test or the totality -of -the-circum stances test, we f ind that the m i nim

um -contacts prong of

the due process test is m et. ¶37. First, unlike those Internet retailers that m ake it im possible f or Mississippi residents to place an o rder f

or alcoholic beverages on their I nternet sites, the Def endants knowingly allow Mississippi residents to do so in violation of M i s s i s s ippi law. T he D ef e n dants, of

1 3course, d isagree t hat this is t h e c a s e because the sales are m ade F.O.B. at the Def endants’ respective places of business in Calif ornia and New York, so title passes f rom sellers to the buy ers a t t he m om ent of d elivery to the carrier. Thus, according to the Def endants, the buy er is responsible f

or the s hipm ent of a lcoholic-beverage products into Mississippi and whatever illegalities that result, not the seller. ¶38. W e do not see it t hat way . T he Def endants attem

pt an end run around Mississippi law and the purposef

ul-availm ent d

ue-process r equirem e n t by em ploy ing F.O.B. t erm s that

custom arily govern the shipper’s costs or l oss f rom destruction or breakage during d elivery

. 6
W e re i t that sim

ple to def eat jurisdiction, alm ost no entity that engages in t he interstate sale of g oods a nd products would be am enable to suit o utside o f t h at entity ’s principle state of business—regardless of

their purposef

ul contact(s) with the other state. ¶39. As the S tate points out, the Fif th Circuit addressed a som ewhat sim ilar a rgum ent in Luv N’ Care, Ltd. v. Insta-Mix, Inc. , 438 F.3d 465 (5th Cir. 2006). Luv held as f ollows:
In the i n terest of prom oting that “degree of predictability to the legal sy stem that allows potential def

endants to structure their prim ary conduct w ith som e m in i mu m assurance as to where that conduct will and will not render them liable to s uit,” World Wide V olkswagen , 444 U.S. at 297, 1 00 S. C t. 559, we conclude that a F.O.B. term does n ot p revent a court f rom exercising personal jurisdiction over a n o n -resident def endant where other f

actors, such as the quantity and regularity of shipm ents, suggest that jurisdiction is proper. This reasoning i s supported by authority that states that t h e p rim ary purpose of a F.O.B. term is to allocate the risk of dam age to go o d s between buy er and s e l l e r . Accordingly , Insta-Mix purposely availed i tself of the benef i t of th e

6 We p o in t o u t, f

o r ex am p le, th at G o ld M ed al’s sales co n tracts p ro v id e, “If a sh ip m en t is d a m ag ed in tran sit w e w ill rep lace th e p ro d u ct at n o ad d itio n a l ch arg e.”

1 4Louisiana m a rket f or its bottle, thereby establishing “m inim um contacts” with the f o rum state. Id. at 471-72 (f

ootnotes om itted). ¶40. As we see it, regardless o f the F.O.B. contract term s used here by the Def endants in their sales contracts, t he D ef endants “st o o d r e a d y and willing to do business” with Mississippi residents, a nd “knowingly did do busines s” with Mississippi residents. Hem i Group , 662 F.3d at 758. And they did so f requently

. Had the Def

e ndants wanted to avoid being sued in M ississippi, they sim ply could have chosen—like the other I nternet wine-andspirit retailers—not to sell their alcoholic-beverage products to residents in Mississippi. See Zippo , 952 F. S upp. at 1126-27 (“If Dot Com had not wanted to be am enable to jurisdiction
in Pennsy lvania, the solution would have been sim ple—it could have chosen not to sell its services to Pennsy lvania.”). ¶41. A c c o r d i n g l y , w e f

i nd that the Def

endants purpos e fu l l y e s t a

b l i s h e d s u ffi c i e n t

m i n i m u m contacts within Mississippi.
2. Whet h e r t he State’s cause of action arises out of or relates to t he Defendant’s forum -related activities. ¶42. There i s n o d i s p u t e t h a t t h e S t a t e ’s claim s arise out of and are related to the Def endants’ activities with Mississippi.
3. Whether jurisdi c t i o n com ports w ith fair p lay and substantial justice. ¶43. The Suprem e Court has outline d f a c t o r s t o b e considered in determ ining whether personal jurisdiction will com port with f

air play and substantial justice:

1 5A court m ust consider the burden on the def e ndant, the i nterests o f t he f orum State, and the plaintif

f ’s interest in obtaining relief

. It m ust also weigh in its determ ination “the interstate judicial sy stem ’s interest in obtai n i n g the m ost ef f icient resolution of controversies; and the s h ared interest of the several States in f urthering f

undam ental substantive social policies.”
Asahi Metal Indust. Co. v. S uperior Court o f Cal., Solano Cty. , 480 U.S. 102, 113, 107 S.
Ct. 1026, 94 L. Ed. 2d 92 (1987) (quoting World-Wide V olksw a g e n , 4 4 4 U

. S. at 292); Phillips , 992 So. 2d at 1141-42. ¶44. T h e D e f

e n d a n ts do n ot argue that they would be burdened by having t o d e f e n d a lawsuit in Mississippi. T he State, however, argues t hat Mississippi c o u r t s h a v e a strong interest i n providing a f

orum to r esolve disputes involving the s tate itself

. W e a gree with the
State. E.g. , Hem i Group , 622 F.3d at 760. Accordingly , we f i nd t hat p ersonal jurisdiction over the Def

endants com

ports with f

air play and substantial justice.
CONCLUSION ¶45. W e f

i n d t h a t t h e d o i n g - b u s iness com p onent o f Mississippi’s l ong-arm statute is applicable to the D ef

endants. W e f

urther f ind that each of the Def

e ndants have established suf f i cient m inim

um contac ts w ith Mississippi and t hat those c o ntacts relate to t he State’s claim s against the Def

endants. Personal jurisdiction over each of the Def endants com

ports with f air p lay and substantial justice a nd d oes not violate t h e i r constitutional due process rights. ¶46. Accordingly , w e reverse the trial court’s dism issal of State’s case f or lack of personal jurisdiction over the Def

e ndants. W e rem and the case to the R ankin County Chancery Court f or f urther proceedings consistent with this opinion.

1 6¶47. REVERSED AND REMANDED.

RANDOLPH, C .J., KITCHENS AND KING, P.JJ., COLEMAN, M AX WELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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