Luv N' Care, Ltd. v. Insta-Mix, Inc.

United States Court of Appeals
Fifth Circuit
In the
FILED
United States Court of Appeals January 25, 2006
for the Fifth Circuit Charles R. Fulbruge III
_______________ Clerk
m 04-31171
______________

LUV N’ CARE, LTD.,

Plaintiff-Appellant,

VERSUS

INSTA-MIX, INC.; UMIX, INC.; UMIXPRODUCTS, INC.;
UMIX SPORTS, INC.; UMIXPRO; AND UMIXBABY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court
for the Western District of Louisiana
_________________________

Before GARWOOD, SMITH, and DEMOSS, I.
Circuit Judges. Luv n’ care is an international corporation
based in Monroe, Louisiana, that specializes in
JERRY E. SMITH, Circuit Judge: the design, manufacture, and sale of a variety
of infant care products. Insta-Mix is a small
Luv n’ care, Ltd. (“Luv n’ care”), a Louisi- Colorado corporation that holds the patent on
ana corporation, appeals the dismissal of its a two-chambered plastic bottle with a
suit against Insta-Mix, Inc., and several related freezable core, for use by both athletes and
entities (collectively “Insta-Mix”), citizens of children. The design of the straw cap of Insta-
Colorado, for lack of personal jurisdiction. Mix’s bottle allegedly bears resemblance to a
We reverse and remand.
bottle cap produced by Luv n’ care.1 the EDI system in response to a discovery
request in this litigation. It appears that
Insta-Mix has sold 82,224 of its patented eventually some of Insta-Mix’s bottles reached
bottles to Wal-Mart and a few other vendors. Wal-Mart stores in Louisiana, repackaged
Although Wal-Mart resells the product at its under the Wal-Mart trade name.
retail locations, Insta-Mix does not ship the
product directly to Wal-Mart stores but, in- It is undisputed that Insta-Mix has no em-
stead, trucks or third-party carriers assigned by ployees or agent for service of process in Lou-
Wal-Mart transport the bottles from Insta- isiana and conducts no direct sales or market-
Mix’s dock in Colorado Springs to one of ing there. Rather, its only contact with Louisi-
twenty-six distribution centers nationwide. ana is its sales of items to Wal-Mart.

The vendor agreement that gives Wal-Mart II.
the right to purchase and retail these bottles in- Luv n’ care sued Insta-Mix for copyright
dicates that Wal-Mart assumes ownership of infringement, 17 U.S.C. § 101 et seq., and
the bottles when they are loaded in Colorado trademark dilution and unfair competition un-
Springs. The agreement also mentions several der the Lanham Act, 15 U.S.C. §§ 1125-
possible distribution centers, but none in Loui- (a)(1)(A) and (B). Insta-Mix moved to dis-
siana. Wal-Mart transported 3,696 copies of miss under Federal Rule of Civil Procedure
the bottle, or approximately 65 shipments, 12(b) (2) and (3) for lack of personal jurisdic-
with total revenue to Insta-Mix of $8,923.20, tion and improper venue.
to its distribution center in Opelousas, Louisi-
ana. The magistrate judge issued a recommen-
dation that the suit be dismissed because
Insta-Mix received and filled purchase or- “[s]imply placing [a] product in the stream of
ders from Wal-Mart via an “Electronic Data commerce is not sufficient to create personal
Interchange” (“EDI”) system, which contains jurisdiction even if it were foreseeable that the
information regarding the price, quantity, and product might end up in Louisiana.” Because
destination of each shipment. Once an order is the magistrate judge found the jurisdictional
filled, the EDI system automatically sends to issue dispositive, he did not reach the venue
Wal-Mart an electronic invoice that contains issue. The district court adopted the recom-
the letterhead of an Insta-Mix-related entity mendation.
and the destination address.
III.
The record contains several invoices with a We review de novo a district court’s deter-
“send to” location of the Wal-Mart distribution mination that it lacks personal jurisdiction over
center in Opelousas. Insta-Mix alleges that it a non-resident defendant. Adams v. Unione
had no knowledge of the destination of the Mediterranea di Sicurta, 220 F.3d 659, 667
products until it printed out information from (5th Cir. 2000). Where a defendant challenges
personal jurisdiction, the party seeking to
invoke the power of the court bears the burden
1
Apparently the manufacturer, Royal King, of proving that jurisdiction exists. Wyatt v.
claims proprietary rights to the molds from which Kaplan, 686 F.2d 276, 280 (5th Cir. 1982).
the allegedly infringing bottle cap is produced.

2
The plaintiff need not, however, establish jur- step analysis: “(1) whether the defendant . . .
isdiction by a preponderance of the evidence; purposely directed its activities toward the for-
a prima facie showing suffices. Id. This court um state or purposely availed itself of the priv-
must resolve all undisputed facts submitted by ileges of conducting activities there;
the plaintiff, as well as all facts contested in the (2) whether the plaintiff's cause of action arises
affidavits, in favor of jurisdiction. Id. out of or results from the defendant’s forum-
related contacts; and (3) whether the exercise
The Due Process Clause of the Fourteenth of personal jurisdiction is fair and reasonable.”
Amendment guarantees that no federal court Id. at 378 (citing Burger King Corp. v.
may assume jurisdiction in personam of a non- Rudzewicz, 471 U.S. 462, 474 (1985)). The
resident defendant unless the defendant has forum state may create, and this court would
meaningful “contacts, ties, or relations” with be bound to apply, additional jurisdictional re-
the forum state. Int’l Shoe Co. v. Washington, strictions by statute, Adams, 220 F.3d at 667,
326 U.S. 310, 319 (1945). Jurisdiction may be but Louisiana’s “long-arm” statute extends jur-
general or specific. Where a defendant has isdiction to the constitutional limit, LA. R.S.
“continuous and systematic general business 13:3201(B), so the two inquiries in this case
contacts” with the forum state, Helicopteros fold into one.
Nacionales de Colombia, S. A. v. Hall, 466
U.S. 408, 415 (1984), the court may exercise A.
“general” jurisdiction over any action brought To determine whether Insta-Mix has “min-
against that defendant. Id. at 414 n.9.2 Where imum contacts” with Louisiana, we must iden-
contacts are less pervasive, the court may still tify some act whereby it “purposely avail[ed]
exercise “specific” jurisdiction “in a suit arising itself of the privilege of conducting activities
out of or related to the defendant’s contacts [there], thus invoking the benefits and protec-
with the forum.” Id. at 414 n.8. This case tions of its laws.”3 The defendant’s conduct
presents only the question of specific must show that it “reasonably anticipates being
jurisdiction. haled into court” in Louisiana. World Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286,
A federal court may satisfy the constitu- 297 (1980). Likewise, a defendant may
tional requirements for specific jurisdiction by permissibly alter its behavior in certain ways to
a showing that the defendant has “minimum avoid being subject to suit. Id.
contacts” with the forum state such that im-
posing a judgment would not “offend tradi- The district court erred in holding that plac-
tional notions of fair play and substantial jus- ing a product into the stream of commerce, at
tice.” Int’l Shoe, 326 U.S. at 316. In Nuovo least where the defendant knows the product
Pignone v. Storman Asia M/V, 310 F.3d 374 will ultimately reach the forum state, does not
(5th Cir. 2002), we consolidated the personal rise to the level of “purposeful availment.”
jurisdiction inquiry into a convenient three- This court has consistently held that “mere

2 3
Federal courts may also always assume juris- Hanson v. Denckla, 357 U.S. 235, 253
diction over a defendant in any action in which (1958). A single purposeful contact may confer
there is personal, in-state service of process. Burn- jurisdiction. McGee v. Int'l Life Ins. Co., 355 U.S.
ham v. Superior Court, 495 U.S. 604 (1990). 220, 222 (1957).

3
foreseeability or awareness [is] a constitution- Applying this circuit’s more relaxed “mere
ally sufficient basis for personal jurisdiction if foreseeability” test to the facts of this case, we
the defendant’s product made its way into the conclude that Insta-Mix’s contacts with Loui-
forum state while still in the stream of com- siana are sufficient to withstand constitutional
merce.”4 We adopted this position in an effort scrutiny.
faithfully to interpret World Wide Volkswagen,
444 U.S. at 298, which holds that a state does Insta-Mix maintains that Wal-Mart had
not offend due process by exercising jurisdic- complete control over the ultimate destination
tion over an entity that “delivers its products of its goods once they left the warehouse in
into the stream of commerce with the expecta- Colorado Springs and that Wal-Mart could
tion that they will be purchased by consumers even make a mid-stream decision to re-route
in the forum State.” the goods to other distribution centers not list-
ed on the invoices. A “unilateral decision to
Where a defendant knowingly benefits from take a chattel . . . to a distant State” does not
the availability of a particular state’s market suffice to confer jurisdiction. World Wide
for its products, it is only fitting that the Volkswagen, 444 U.S. at 314.7 This case,
defendant be amenable to suit in that state.5 though, does not present facts to the effect
We have, therefore, declined to follow the that a buyer transported goods intended for
suggestion of the plurality in Asahi, 480 U.S. Louisiana to a distribution center in a far-away
at 112, that some additional action on the part state. Rather, in 2002 and 2003 Insta-Mix
of the defendant, beyond foreseeability, is filled approximately sixty-five purchase orders
necessary to “convert the mere act of placing for items bound for Louisiana and sent
the product into the stream into an act pur- invoices to Wal-Mart confirming the same.
posefully directed toward the forum State.”6
Insta-Mix claims that its employees had no
4
Ruston Gas Turbines v. Donaldson Co., 9
actual knowledge of the intended destination
F.3d 415, 419 (5th Cir. 1993) (citing Asahi Metal of its goods until it consulted the EDI system
Indus. Co. v. Superior Court, 480 U.S. 102, 111 in preparation for this litigation. This claim is
(1987)); Bean Dredging Corp. v. Dredge Tech. implausible and could not defeat jurisdiction
Corp., 744 F.2d 1081 (5th Cir.1984). even if true. It is eminently foreseeable that
Insta-Mix’s products would reach the market
5
See Oswalt v. Scripto, Inc., 616 F.2d 191, indicated on the company’s invoices. In fact,
199-200 (5th Cir. 1980) (finding jurisdiction
where defendant had “attempted in [no] way to
limit the states in which the [products] could be
sold” but instead “had every reason to believe its (...continued)
product would be sold to a nation-wide market, channels for providing regular advice to customers
that is, in any or all states”). in the forum State, or marketing the product
through a distributor who has agreed to serve as
6
The Asahi plurality listed the following as the sales agent in the forum State.” Id.
possible additional actions that would evidence an
intent to serve the market of the forum state: “de- 7
See also Burger King, 471 U.S. at 475 (rea-
signing the product for the market in the forum soning that defendant may not be haled into court
State, advertising in the forum State, establishing on account of “random, fortuitous, or attenuated”
(continued...) contacts) (internal quotations omitted).

4
Insta-Mix derived substantial revenue (about Jurisdiction, however, “does not depend on the
4.5% of its total distribution) from its sale of technicalities of when title passes;” rather,
thousands of units bound for Opelousas.8 Al- jurisdiction may attach both to manufacturers
though businesses should be able to take ad- who supply their own delivery systems and to
vantage of the increased efficiencies made pos- those that make use of the distribution systems
sible by the electronic processing of purchase of third parties. Oswalt, 616 F.2d at 197 n.8.10
orders, they cannot then claim ignorance of the
contents of those orders once their products In the interest of promoting that “degree of
inevitably reach the intended market.9 predictability to the legal system that allows
potential defendants to structure their primary
Finally, Insta-Mix argues that it has struc- conduct with some minimum assurance as to
tured its primary conduct to avoid jurisdiction where that conduct will and will not render
by including in the vendor agreement a condi- them liable to suit,” World Wide Volkswagen,
tion that transfers ownership from Insta-Mix 444 U.S. at 297, we conclude that a F.O.B.
to Wal-Mart at the time that Wal-Mart re- term does not prevent a court from exercising
ceives its shipments in Colorado Springs. personal jurisdiction over a non-resident de-
fendant where other factors, such as the quan-
tity and regularity of shipments, suggest that
8
See Bean Dredging, 744 F.2d at 1085 (de- jurisdiction is proper.11 This reasoning is
ciding that introducing merely thousands, not mil-
lions, of items into the stream of commerce “is not
10
enough to convince us that [defendant] had no in- We have suggested, however, that the exis-
terest in reaching as broad a market as it possibly tence of a Free On Board (“F.O.B.”) term in a
could . . . . [T]he defendant here evidenced no at- contract is one factor to consider in determining
tempt to limit the states in which its [products] whether the defendant has “minimum contacts”
would be sold and used.”); cf. World Wide Volks- with the forum state. See Singletary v. B.R.X.,
wagen, 444 U.S. at 299 (holding that the “marginal Inc., 828 F.2d 1135, 1136 (5th Cir. 1987) (finding
revenues” derived from the fact that a product is that the “contact was weakened even further by the
merely “capable of use” in a distant state is “too fact that the sale was initiated by the buyer and
attenuated a contact” to support jurisdiction). was shipped F.O.B. California, the seller’s place of
business.”); Charia v. Cigarette Racing Team,
9
See Asahi, 480 U.S. at 121 (Brennan, J., con- Inc., 583 F.2d 184, 188-89 (5th Cir. 1978)
curring) (finding for a four-Justice plurality that (concluding that F.O.B. shipment, without more,
although defendant “did not design or control the does not constitute purposeful availment of the
system of distribution that carried its [products] laws of the forum state).
into [the forum state, defendant] was aware of the
11
distribution system’s operation, and it knew it For example, in Charia, 583 F.3d at 189, the
would benefit economically from the sale in [the court found that “four sporadic and isolated sales”
forum state] of products incorporating its compon- did not establish a sufficient basis for assertion of
ents.”) (internal quotations omitted). We further jurisdiction but noted that a case in which defen-
agree with Luv n’ care that a contrary holding dant “had supplied its product to the forum state in
would permit foreign defendants to avoid jurisdic- large quantities over a lengthy period of time”
tion in the United States by structuring their data might be treated differently. Likewise, in Single-
systems to shield employees from the knowledge tary the defendant had sold only one $33 part to a
that their products ultimately will reach the United resident of the forum state. See Singletary, 828
States. (continued...)

5
supported by authority that states that the pri- B.
mary purpose of a F.O.B. term is to allocate It is not enough to satisfy due process that
the risk of damage to goods between buyer Insta-Mix has some “minimum contacts” with
and seller.12 Accordingly, Insta-Mix purposely Louisiana. Rather, the underlying cause of ac-
availed itself of the benefit of the Louisiana tion must “arise out of” the defendant’s con-
market for its bottle, thereby establishing “min- tacts with the forum state.14 Luv n’ care al-
imum contacts” with the forum state.13 leges that the presence of Insta-Mix’s products
in Louisiana infringed on Luv n’ care’s copy-
right.
(...continued)
F.2d at 1136.
“[T]his court has been reluctant to extend
In those cases, the court found that the F.O.B.
the stream-of-commerce principle outside the
condition in the contract reinforced the holding that context of products liability cases,” including
jurisdiction in the forum state was unforeseeable. cases involving “contract or copyright.” Nuo-
Here, however, jurisdiction is foreseeable because vo Pignone, 310 F.3d at 381. This is because
of the regularity and quantity of shipments and the contracting parties have more flexibility to
presence of a destination address on defendant’s tailor their relationship in view of jurisdictional
invoices. Where jurisdiction is otherwise fore- considerations than do the manufacturer and
seeable, a F.O.B. term cannot deprive the court of consumer in a typical products liability case.
jurisdiction over the defendant. Id. Nevertheless, we have found jurisdiction
12
Nuovo Pignone, 310 F.3d at 380 n.5 ( stating
that “incoterms are used . . . to allocate risk be-
tween buyers and sellers”); see also William V. (...continued)
Roth, Jr. & William V. Roth III, Incoterms: Facil- product has not been regularly shipped in substan-
itating Trade in the Asian Pacific, 18 U. PA. J. tial quantities directly from Insta-Mix facilities.
INT'L ECON. L. 731, 734 (1997) (describing the di-
vision of risk between buyer and seller in a stan- Insta-Mix could also attach conditions to its
dard incoterm and noting that “[m]ost importantly, vendor agreement that forbid Wal-Mart from ship-
the risk of damage to the goods shifts from seller to ping to those states that operate under a “mere
buyer exactly at the point where the goods” are foreseeability” regime, or to all distribution centers
surrendered to the carrier) (internal citations outside the Great Plains, or to any forum in which
omitted). mounting a defense would be inconvenient. The
fact that it has not done so supports our conclusion
13
We disagree with Insta-Mix that this that Insta-Mix intends to avail itself of as wide a
conclusion means that it must choose between do- market for its goods as possible. See Bean
ing business with Wal-Mart or being subject to suit Dredging, 744 F.2d at 1085. Until presented with
in all fifty states. It is possible that Insta-Mix will such a case, we reserve judgment on the ultimate
avoid suit in a jurisdiction that requires some effectiveness of any contractual condition designed
additional act beyond “mere foreseeability” for to avoid jurisdiction.
personal jurisdiction to attach. See, e.g., Boit v.
14
Gar-Tec Prods., Inc., 967 F.2d 671, 683 (1st Cir. See Shaffer v. Heitner, 433 U.S. 186, 204
1992). Moreover, we do not speak to a situation in (1977) (opining that “the relationship among the
which, for example, jurisdiction is asserted in a defendant, the forum, and the litigation . . . [is] the
state to which the allegedly offending Insta-Mix central concern of the inquiry into personal juris-
(continued...) diction”); Nuovo Pignone, 310 F.3d at 378.

6
where “the same public policy concerns that Luv n’ care claims infringement from the
justify use of the stream-of-commerce same bottle that traveled through the stream of
principle in the products liability context are commerce from Colorado to Louisiana. This
present.” Id. connection between the allegedly infringing
product and the forum state is sufficient to
In Nuovo Pignone, the defendant Fagioli, confer personal jurisdiction.16
an Italian shipper, allegedly damaged plaintiff’s
cargo with a defective onboard shipping crane C.
while docking and unloading at a Louisiana It remains for us to inquire whether the ex-
port. We found jurisdiction even though ercise of jurisdiction would “offend traditional
Fagioli, like Insta-Mix, employed third-party notions of fair play and substantial justice.”
intermediaries at the point of injury, i.e., the International Shoe, 326 U.S. at 316. When a
unloading dock. We further opined that Fagi- plaintiff makes its prima facie case that the
oli should have considered the possible dam- defendant has “minimum contacts” with the
age that a defective crane aboard its vessel forum state, the burden of proof shifts to the
would cause in the forum state. Similarly, In- defendant to show that the exercise of juris-
sta-Mix should have known, when it availed diction would be unreasonable. Nuovo Pig-
itself of the Louisiana market for infant care none, 310 F.3d at 382. In conducting the fair-
products, that it could face potential liability ness inquiry, we examine (1) the burden on the
from competitors with similarly-designed nonresident defendant, (2) the forum state’s
items.15 interests, (3) the plaintiff’s interest in securing
relief, (4) the interest of the interstate judicial
The closest analogue to the present case is system in the efficient administration of justice,
Ham v. La Cienega Music Co., 4 F.3d 413 and (5) the shared interest of the several states
(5th Cir. 1993), in which we denied jurisdic- in furthering fundamental social policies.
tion because there was a “highly attenuated” Felch v. Transportes Lar-Mex SA de CV, 92
relationship between defendant’s contact with F.3d 320, 324 (5th Cir. 1996).
the forum state and plaintiff’s declaratory
judgment action for copyright infringement. Insta-Mix relies primarily on the third and
Ham, 4 F.3d at 416. In Ham, however, the al- fourth elements, arguing that Luv n’ care has
legedly infringing song was different from the not named Wal-Mart, the retailer, nor Royal
one that had been distributed through the
stream of commerce to the forum state. The
16
court suggested the result might be different if This reasoning applies with equal force to
the song distributed in Texas and the allegedly Luv n’ care’s claims of trademark dilution and un-
infringing song were one and the same. Id. at fair competition under the Lanham Act, which in
fact instructs the court, when deciding whether to
416 n.13.
issue an injunction to protect the trademark owner,
to consider, inter alia, “the degree of recognition of
the mark in the trading areas and channels of trade
used by the mark’s owner and the person against
15
See also Gulf Consol. Servs., Inc. v. Corinth whom the injunction is sought.” 15 U.S.C. §
Pipeworks, S.A., 898 F.2d 1071, 1073-74 (5th Cir. 1125(c)(1)(F). We reserve judgment on whether
1990) (finding jurisdiction in a breach of warranty jurisdiction would lie for other causes of action
action). outside the arena of products liability.

7
King, the alleged manufacturer of the bottle The judgment of dismissal is REVERSED,
top, as the more natural defendants. Nor can and this matter is REMANDED for further
the district court grant full injunctive relief proceedings.19
where Wal-Mart remains free to sell, and Roy-
al King remains free to produce, the infringing
cap. Therefore, Insta-Mix portrays this action
as an effort by Luv n’ care, a major manufac-
turer, to intimidate a small competitor into ex-
iting the market.

If Luv n’ care’s suit is indeed frivolous, the
district court presumably will deal with that
deficiency. But, where a product allegedly
causes economic injury in Louisiana, it is in the
interest of that state to have its courts mediate
the dispute. Furthermore, it is not un-
reasonable to ask Insta-Mix to defend in Loui-
siana, where the company avails itself of the
benefit of that state’s market for thousands of
iterations of its product. The forum state
(Louisiana) and the plaintiff (Luv n’ care,
which is organized under Louisiana law and
based there) obviously have some legitimate
interest in litigating this matter in Louisiana,
where there has been regular distribution of a
number of the allegedly offending products.17
Therefore, traditional notions of fair play and
substantial justice do not require that this suit
be dismissed for want of personal jurisdic-
tion.18

17
See Bean Dredging, 744 F.2d at 1085 (rea-
soning that “[b]ecause the product was used in
Louisiana, because the defects surfaced in Louisi-
ana, because the economic injury has befallen a
resident of Louisiana . . . that state has an interest
in providing a forum for this suit”).
(...continued)
18
We also note that although Wal-Mart may be copyright infringement.
a more natural defendant in this action, the vendor
agreement between Wal-Mart and Insta-Mix states 19
Because the district court did not rule on
that Insta-Mix shall defend and indemnify Wal- Insta-Mix’s alternative argument on improper ven-
Mart against, inter alia, any actual or alleged ue, we do not reach that issue, and the parties are
(continued...) free to raise it on remand.

8
DeMOSS, Circuit Judge, specially concurring: outside of its territory, except so far as is
allowed by comity; and that no tribunal
I concur in the majority opinion because I established by it can extend its process beyond
recognize that Fifth Circuit precedent binds us that territory so as to subject either persons or
to follow the “stream of commerce” approach property to its decisions.” Pennoyer v. Neff,
in personal jurisdiction cases;20 however, I 95 U.S. 714, 722 (1878). Thus, the “minimum
write separately for two reasons: (1) to note contacts” test was developed over time to
that if it were not for that precedent, I would define the necessary contact a nonresident
certainly vote to decide this case under the defendant must have with a state before the
“stream-of-commerce-plus” approach defendant can be subjected to suit there. Asahi
announced by Justice O’Connor in Asahi is the last in a long line of Supreme Court
Metal Industry Co. v. Superior Court, 480 cases to define the contours of that test, and it
U.S. 102 (1987), and (2) to highlight how this left the test in a state of complete disarray.
case contributes to the circuit split created by Only three Justices joined the portion of
Asahi, a split I urge the Supreme Court to Justice O’Connor’s plurality opinion that
resolve. embraced the stream-of-commerce-plus
approach to minimum contacts; of the five
In my opinion, Justice O’Connor’s stream- remaining Justices, three Justices joined Justice
of-commerce-plus theory is the more Brennan in a concurrence that embraced the
constitutionally defensible of the two theories stream of commerce approach and Justice
of minimum contacts to emerge from Asahi. Stevens wrote his own concurrence embracing
The principle of “minimum contacts” is a neither. It is the stream of commerce approach
court-created principle that effectively limits a that the Fifth Circuit follows and that I
state’s exercise of jurisdiction over nonresident criticize here (although I recognize its binding
defendants. Jurists have long recognized “that effect). The stream of commerce, or “mere
the laws of one State have no operation foreseeability,” approach requires only that a
nonresident defendant place its product in the
stream of commerce with the expectation that
20
See Ruston Gas Turbines, Inc. v. Donaldson the product will reach the forum state. Nuovo
Co., 9 F.3d 415, 420 (5th Cir. 1993). Writing for Pignone, SpA v. STORMAN ASIA M/V, 310
the unanimous panel in Ruston, I described the F.3d 374, 380 & n.7 (5th Cir. 2002). As Judge
Fifth Circuit’s long-time support of the “stream of Niemeyer of the Fourth Circuit eloquently
commerce” theory and rejection of the “stream-of- stated in Lesnick v. Hollingsworth & Vose Co.,
commerce-plus” theory. Id. In that case, 35 F.3d 939, 945 (4th Cir. 1994), “To permit
application of the “stream of commerce” theory to a state to assert jurisdiction over any person in
the facts at hand led to a reasonable result, in part the country whose product is sold in the state
because Ruston involved more than mere
simply because a person must expect that to
placement of a product into the stream of
commerce. See id. at 417-18 (third-party defendant
happen destroys the notion of individual
shipped products directly to forum, sent employees sovereignties inherent in our system of
to forum to consult with customers). The exercise federalism.” Justice O’Connor’s stream-of-
of personal jurisdiction over Insta-Mix in this case, commerce-plus approach states that mere
however, stretches the stream of commerce theory foreseeability is not enough and requires
to its outer limits, and thereby reveals the flaws in “[a]dditional conduct of the defendant . . .
the stream of commerce approach.

9
indicat[ing] an intent or purpose to serve the For the above reasons, I hope Insta-Mix
market in the forum State,” and thereby better will apply for a writ of certiorari and I urge the
comports with our country’s principles of Supreme Court to take up the minimum
federalism. See Asahi, 480 U.S. at 112. contacts issue and resolve it and the increasing
circuit divide with clarity. The recent changes
This case is the proverbial straw that breaks in the composition of the Court should
the camel’s back because it stretches the produce a new effort by the Court to
stream of commerce theory beyond its past definitively answer this controversy. The
limits and thus deepens the divide between sovereignty of the individual states is on the
circuits that require “additional conduct” and line.
those that do not. Subjecting Insta-Mix to suit
in Louisiana creates a “Wal-Mart exception,”
rendering any small company that sells a
product to Wal-Mart subject to suit in any
state in the nation in which Wal-Mart resells
the company’s products. Insta-Mix did no
business in Louisiana; it had no agent for
service of process in Louisiana; it negotiated a
contract with Wal-Mart in Arkansas and it sold
and delivered its products to Wal-Mart for its
plant in Colorado; and Wal-Mart picked up
Insta-Mix’s products in Colorado on a Wal-
Mart truck (or a truck contracted for by Wal-
Mart). None of the plus factors defined by
Justice O’Connor in Asahi are satisfied on the
record here: Insta-Mix’s product was not
designed or designated for the Louisiana
market; Insta-Mix did not advertise in
Louisiana; Insta-Mix established no channels
for providing regular advice to customers in
Louisiana; and Insta-Mix did not market its
product through a distributor who agreed to
serve as a sales agent in Louisiana. Asahi, 480
U.S. at 112. In a stream-of-commerce-plus
circuit, personal jurisdiction would not attach
in this case. But under the mere foreseeability
test that controls our circuit, Insta-Mix is
subject to suit in Louisiana. This result on this
record defies principles of federalism and
therefore presses for the repudiation of the
“stream of commerce” approach to personal
jurisdiction.

10