* 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.

REVISED JUNE 7, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60360

ITL INTERNATIONAL, INCORPORATED, doing business as Mars

Caribbean and Central America, formerly doing business as Master Foods

Interamerica; MARS, INCORPORATED,

Plaintiffs-Appellants

v.

CAFÉ SOLUBLE, S.A.,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:10-CV-00477

Before KING, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

This case arises out of a commercial dispute between Mars, Inc. and its

subsidiary ITLInternational, Inc. (collectively, “Mars” or “Plaintiffs-Appellants”)

and Mars’s former Nicaraguan distributor, Café Soluble, S.A. (“Café Soluble” or

“Defendant-Appellee”). Mars seeks a declaratory judgment stating, primarily,

that it is not liable to Café Soluble for terminating the importation and

United States Court of Appeals

Fifth Circuit

F I L E D

February 14, 2012

Lyle W. Cayce

Clerk
No. 11-60360

1 See Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir. 2002)

(setting out requirements for exercising specific jurisdiction).

2 No. 10–60892, 2012 WL 266987 (5th Cir. Jan. 31, 2012).

3

Id. at *5 (citations omitted).

4 Mars also brought trademark claims in the instant case, but it informed us in its reply

brief that it is no longer pursuing those claims.

2

distribution agreement between the parties, notwithstanding Nicaraguan law

that may impose penalties for such termination. Café Soluble moved to dismiss

the complaint for lack of personal jurisdiction. Mars responded that Café

Soluble has sufficient contacts with Mississippi for purposes of specific

jurisdiction because it received twelve shipments of Mars’s products F.O.B.

Gulfport, Mississippi between 2008 and 2010. The district court dismissed the

complaint, holding that (1) Café Soluble was subject to the court’s jurisdiction

under Mississippi’s long-arm statute, (2) Café Soluble had purposeful contacts

with Mississippi, and (3) Mars’s claims are sufficiently related to those

Mississippi contacts, but that (4) asserting jurisdiction over Café Soluble would

not be fair and reasonable.1

After the appeal ofthis case was briefed, another panel ofthis courtissued

an opinion in ITL International, Inc. v. Constenla, S.A.2In that case, Mars

brought suit in the same Mississippi district court that we are reviewing here,

seeking a declaration that it was not liable to Constenla, its Costa Rican

distributor, despite Costa Rican law to the contrary. The panel in that case held

that (1) Constenla fell under Mississippi’s long-arm statute, and (2) Constenla

had purposeful contacts with Mississippi, butthat(3) Mars’s claims do not“arise

out of or relate to” those Mississippi contacts, stating:3

Although the contract was partially performed in Mississippi, the

dispute here does not arise out of or result from that partial

performance. This dispute concerns only trademark claims4 and

general contract issues—transfer, assignment, application, liability,
No. 11-60360

5 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984).

6 See Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997) (court of appeals may affirm

on any ground supported by the record).

3

termination, interpretation—that have, at most, a superficial and

highly attenuated connection to the minimal activity thattook place

in Mississippi. In fact, this lawsuit is oriented almost exclusively

toward activity that has taken place or may eventually take place

in Costa Rica, and nothing in the facts, claims, causes of action, or

prayer sections of the complaint makes reference to Mississippi or

to activity that took place there. This case is not about damaged

goods delivered in Gulfport but rather about distribution in Costa

Rica and associated contract and trademark issues. The contract

claims present rather abstract questions of law that have no

relation to passing the goods from plaintiffs to defendants in

Gulfport. Indeed, plaintiffs allege no injury flowing from the

transport of the goods, and neither party to the contract was a

Mississippi resident when the contract was made or performed. . .

. Whether the defendants took possession of the goods in

Mississippi, Florida, or some other state makes no difference to the

claims in this lawsuit. Partial performance in a state, without more,

does not provide an adequate nexus with claims that do not arise

out of or result from that performance.

As the instant case is not distinguishable from Constenla in any material

respect, we hold that Mars’s claims do not arise out of or relate to Café Soluble’s

Mississippi contacts for purposes of specific jurisdiction.

Mars also claims that the district court has general jurisdiction over Café

Soluble because Café Soluble accepted delivery of the twelve shipments at

Gulfport. Assuming that this contention was preserved below, we reject it

because “mere purchases, even if occurring at regular intervals” are insufficient

to support general jurisdiction.5

Accordingly, we affirm the district court’s ruling that it lacks personal

jurisdiction over Café Soluble.6 The district court, however, dismissed Mars’s

contract claims with prejudice. Mars correctly insists that a dismissal “for lack
No. 11-60360

7 Fed. R. Civ. P. 41(b).

8 American Realty Trust, Inc. v. Hamilton Lane Advisors, Inc., 115 Fed.Appx. 662, 666-

67 (5th Cir. 2004) (unpublished).

4

of jurisdiction” does not “operate[] as an adjudication on the merits”7 and thus

should have been without prejudice.8 We therefore reverse the district court’s

dismissal to the extent that it is with prejudice, and we remand with

instructions to amend the order to specify that the dismissal is without

prejudice. Finally, we deny Mars’s motion for an international anti-suit

injunction against Café Soluble as moot.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.