IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60767

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

United States Court of Appeals

Fifth Circuit

F I L E D

March 13, 2013

Lyle W. Cayce

Clerk

* 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.

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

2

 Case: 11-60767 Document: 00512172989 Page: 2 Date Filed: 03/13/2013
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 suitthereunder a general jurisdiction theory. Goodyear Dunlop Tires Operations,

S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (citation omitted).

3

 Case: 11-60767 Document: 00512172989 Page: 3 Date Filed: 03/13/2013
No. 11-60767

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-ofcommerce 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.’” 

4

 Case: 11-60767 Document: 00512172989 Page: 4 Date Filed: 03/13/2013
No. 11-60767

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)).

3The Supreme Court declined to address a similar issue in Helicopteros Nacionales, 466

U.S. at 415 n.10.

5

 Case: 11-60767 Document: 00512172989 Page: 5 Date Filed: 03/13/2013
No. 11-60767

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.

5We 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).

6

 Case: 11-60767 Document: 00512172989 Page: 6 Date Filed: 03/13/2013