### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-60767

ANDREA IRVIN, Plaintiff–Appellant
v. SOUTHERN SNOW MANUFACTURING, INCORPORATED, Defendant–Appellee

Appeal from the United States District Court f or 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 jurisd i c t ion over S outhern Snow M anufacturing, Inc., (“Southern Snow”). We AFFIRM. Louisiana-based Southern Snow manufactures s haved-ice machines used to create “snowballs.” It sells those machines and the accessories necessary to

m a k e s n o wb a l l s

— s u c h a s f l av o r e d s yr u p , syrup bottles, bottle nozzles, d i s p o s ab l e cups, a nd plastic spoons—to c u s t o m e r s residing in all states in the United U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-60767 Document: 00512172989 Page: 1 Date Filed: 03/13/2013No. 11-60767

States, a s well as internationally. Mississippi has, in some years, been the third largest market for Southern Snow products. Southern Snow sold a sn o wball machine to a Louisiana resident who bought, paid for, and took possession of the machine in L ouisiana. Several years later, the purchaser sold the machine i n Louisia n a to I rvin and her husband, bo t h M i ssissippi residents, and the Irvins took it t o Mississippi. Irvin later purchased $369.20 worth of snowball accessories directly from Southern Snow. No e vidence s uggests that these accessories are uniq u e to Southern Snow’s snowball machines. Irvin subsequently i njured her hand while attempting to c lean the machine. She sued S o uthern Snow in Mississippi state court, a sserting negligence, defective-design, and failure-to-warn claims. Southern Sn o w removed and filed a m otion to dismiss for lack of personal jurisdiction. The district court conducted an evidentiary hearing and granted the motion. Irvin timely appealed. This court r eviews de novo as a n i s sue of law whether a district c o urt m ay properly exercise personal jurisdiction over a nonresident defendant. C lemens

v. M cNamee , 615 F.3d 374, 378 (5th Cir. 2010). Normally, a plaintiff need only

m a k e a prima facie showing of the defendant’s amenability to s uit. N u o v o Pignone, SpA v. Storman Asia M/ V , 310 F.3d 374, 378 (5th Cir. 2 002). Where,

as here, the district court conducts an evidentiary hearing, however, a plaintiff must de m o n s t r a te that the exercise o f jurisdiction is appropriate by a preponderance of the evidence. See DeMelo v. T oche Marine, Inc. , 711 F.2d 1260, 1271 n .12 (5t h C i r . 1983). We review for clear e rror any factual findings material to the district court’s ruling. Loumar, I nc. v. Smith , 698 F.2d 759, 763 (5th Cir. 1983). “A federal district court sitting in d ivers i t y may e xercise personal jurisdiction over a nonresident defendant if ( 1) the long-arm statute of the forum

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state confers personal jurisdiction over t hat defendant; and (2) [the] exercise of such jurisdiction by the forum state is consistent w ith d u e p rocess u nder the United State s C o n s t itution.” 1 Ruston G as Turbines, Inc. v . Donaldson Co. , 9 F.3d 415, 418 (5th Cir. 1 993). The inquiry generally turns o n the facts of each
case, b ut precedent provides some well-known principles as guidance. See Burger King Corp. v. Rudzewicz , 471 U.S. 462, 485-86 (1985). The longstanding “consti t u t i onal touchstone remains whether the defendant purposefully established ‘minimum cont acts’ in the forum State

. . . ‘such t hat h e should reasonably anticipate being haled into court t here.’” Id. at 474 ( citations omitted); see also World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291- 92 (1980). There are two types o f personal jurisdiction: g eneral and s pecific. See, e.g. , Luv N’ Care, Ltd. v. Ins t a - M ix, Inc. , 438 F.3d 465, 469 (5th C ir. 2006). Irvin suggests that the d istrict court could have exercised general j urisdiction o ver S o u t h ern S n ow. She w a ived this argument by failing to raise it clearl y a n d develop i t adequately i n her o p e n i n g b r ief. 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 M is s is s ip p i long- arm s tatute is not coextens ive w ith d ue p roces s . See ITL Int’l, Inc. v . Constenl a, S. A

. , 6 6 9 F

. 3 d 4 9 3 , 497 n. 14 ( 5th Cir. 2012)

. The d is trict court conclud ed t h a t I rvin s atis f

ied that statute’s “tort p rong, ” w hich conf ers p ers onal juris d iction over nonres id ents who “com m it a tort in w hole or in p art in [ Mis s is s ip pi] agains t a res id ent or nonres id ent. ” M is s . Cod e Ann. § 13- 3- 57. There is no real d is pute that the tort prong ap p lies here. See G ross v . Chev rol et Country, Inc. , 655 So. 2d 873, 879 (M is s . 1995) ( “For p urp os es of t he tort p rong
. . . , ‘a tortious act outs id e the s tate w hich caus es injury wit h i n t h e s t a t e conf ers juris d iction on the courts of that s tate. ’” ( citation om itted ) )

.

2 In any cas e, the record d oes not s ugges t t h a t S o u t hern Snow ’s contacts w ith M is s is s ip p i are “s o ‘continuous and s ys tem atic’ as to rend er [it] es s entially at hom e” and am enable to s uit t h e r e u n d er a general juris d iction theory. G oodyea r D unl op Ti res O pera ti ons, S. A

. v . B row n , 131 S. Ct. 2846, 2851 ( 2011) ( citation om itted )

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The exercise of specific jurisdiction requires establishing three elements. First, t he plaintiff must show that the d e fendant has estab l i s h e d minimum contacts with the forum state by purposely directing its activities toward the forum state o r purposefully availing i t s elf of the privilege of conducting activities there. See B urger King , 471 U .S. at 474-76. “This ‘purposeful availment’ requirement ensures that a defendant will n ot be haled into a jurisdiction solely

as a r e sult of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘ unilateral activity of another party or a t h i rd person.’” Id. at 475 (internal citations omitted)

. “J u r i s d i c t i o n i s p r o p e r , h o w e v e r , where the contacts p roximately result from actions by the defendant himself that c reate a ‘substantial connection’ with the forum State.” Id. (emphasis removed) (citation omitted). Second, t he plaintiff’s claims must “relate[] to or ‘ar i se[] o ut of’ [the] defendant’s contacts with t he forum.” Helicopteros N a c i o n a le s de Colombia, S.A.

v . H a l l , 4 6 6 U .S. 408, 414 (1984). In o ther w ords, there must be a “nexus between the defendant[’s] contacts with Mississippi and the plaintiff[’s] [tort] claim[].” ITL I

nternational , 669 F.3d a t 500. F inally, the exercise of j urisdiction must comport with “traditional notions of fair play and substantial justice.” Int’l Shoe C o. v. Washington , 3 26 U.S. 310, 316 ( 1945) (citation and q uotation marks omitted); see also Burger King , 471 U.S. at 476-77. Although the particular machine t hat injured Irvin arrived in Mississippi through the plaintiff’s own unilateral acts, I rvin contends t h at Southern Snow’s busines s c o ntacts with other Mississippi customers are sufficient t o support specific jurisdiction under a “stream-of-commer c e ” t heory, citing Petroleum Helicopters, I

n c. v A vco 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 permi t s th e exercise of personal j urisdiction over a nonresident defendant t h at ‘delivers its products i nto the stream o f commerce with the expectation that they will be purchased by consumers i n t he forum State.’”

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Seiferth v. Helicopteros Atuneros, Inc. , 4 72 F.3d 266, 273 (5th C ir. 2006) (quoting World-Wide V

o l k s w a gen , 444 U.S. at 298). In Irvin’s view, the fact that Southern Snow sold snowball machines directl y t o o ther Mississippi residents should reasonably h ave put it on noti c e t h a t i t could be “haled into court” in Mississippi for a lawsuit over a defective snowball machine. 3 We need not d ecide the outer limits of t h e stream-of-commerce jurisdictional theory here. We assume wi t h o u t d e c i ding that Irvin demonstrated that Southern Snow purposefully availed itself of the privilege of doing business in Mississippi by making a sub s t a n t i a l percentage of its overall sales to customers in that state, satisfying the first e lement of specific j urisdiction. See Choice Healthcare, Inc. v . Kaiser Found. Health Plan of Colo. , 615 F.3d 364, 373 (5th Cir. 2010) (reasoning t h a t d eriving revenue from a “sales or distribution network” d e signed to nationally m arket products “is t h e q u i d p ro quo for requiring the defendant t o suffer a suit in the foreign forum” (citations o mitted)). The second element proves more problematic, as Irvin fails t o s h ow that her claims “arose out of” or “relates t o” Southern Snow’s Mississippi contacts. As a n i n i t ial matter, the nexus between those contacts and the m achine that injured I rvin is too attenuated to support personal jurisdict ion b ased on an “arose-out-of” theory. Southern Snow sold the machine to a Louisiana c ustomer and had no knowledge that, years later, Irvin unilaterally t ransported it into Mi s s issippi. Moreover, a lthough Irvin suffered injury in Mississippi, that fact

a l o n e d oes not m a ke Southern Snow amenable to suit i n M ississippi. See Seiferth , 472 F .3d a t 273 (“Once a product has reached the end of the stream [of commerce] a nd is purchased, a consumer’s u nilateral decision to take a product to a distant state, without more , is insufficient to c o nfer persona l j u r isdiction over the manufacturer or distributor.” (emphasis added)).

3 The Sup rem e Court d eclined to ad d res s a s im ilar is s ue in H el i co p t e ro s N a ci ona l es , 466 U

. S. at 415 n. 10. 5 Case: 11-60767 Document: 00512172989 Page: 5 Date Filed: 03/13/2013No. 11-60767

We also cannot s ay on this record that Irvin’s c laims sufficiently “relate to” Southern Snow’s Mississippi contacts. Although Irvin po i nts to t he a llegedly large figure of sales by Southern Snow to v arious Mississippi-based customers, this number inc l u d e s s a l e s o f syrup and other snowball-making accessories—which did not cause Irvin’s injuries—and no evidence in the record allows a c omparison of the amo u n t o f s a les a ttributable to these types of accessories versus the sales a ttributable to actual snowball machines. Indeed,

on this record, w e h a v e n o basis to d etermine how many snowball machines Southern Snow sends outside o f L o u i siana in general, or to Mississippi in particular. See Bean Dredging , 744 F.2d at 1085 (considering, f or the purpose of its personal jurisdiction analysis, the volume o f p roducts—of t h e type that caused the plain t i f

f ’ s injury—that was placed into t he stream o f commerce by the defendant). 4 Counsel for I rvin conceded at oral argument that these absent f acts bear heavily on the e xercise of personal jurisdiction. Without t h e m , she cannot satisfy her burden to show a sufficient n exus between h er injury and Southern Snow’s Mississi p pi contacts. 5 Accordingly, the district court appropriately concluded that i t c o uld 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 theref

ore need not and d o not d ecid e w hether a claim m ay “ r e l a te to, ” but not “aris e out of, ” a def

end ant’s forum contacts

. H el icop teros N

a ci ona les , 466 U

. S. at 415 n. 10.

5 We theref

ore have no occas ion to cons id er w heth e r t h e exercis e of p ers onal j uris d iction in M is sis sip p i w ould com port w ith trad itional notions of fair p lay and s ubs tantial jus tice. See ITL Interna ti ona l , 669 F. 3d at 501 n. 41 ( ref us ing to reach the third prong of the s p ecif ic juris d iction inquiry af ter f ind ing that the s econd p rong had not been s atis f ied)

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