Luv N Care Ltd v. Insta-Mix Inc, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Luv n’ care, Ltd. (“Luv n’ care”), a Louisi-
ana corporation, appeals the dismissal of its
suit against Insta-Mix, Inc., and several related
entities (collectively “Insta-Mix”), citizens of
Colorado, for lack of personal jurisdiction.
We reverse and remand.
I.
Luv n’ care is an international corporation
based in Monroe, Louisiana, that specializes in
the design, manufacture, and sale of a variety
of infant care products. Insta-Mix is a small
Colorado corporation that holds the patent on
a two-chambered plastic bottle with a
freezable core, for use by both athletes and
children. The design of the straw cap of Insta-
Mix’s bottle allegedly bears resemblance to a
United States Court of Appeals
Fifth Circuit
F I L E D
January 25, 2006
Charles R. Fulbruge III
Clerk

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bottle cap produced by Luv n’ care.1
Insta-Mix has sold 82,224 of its patented
bottles to Wal-Mart and a few other vendors.
Although Wal-Mart resells the product at its
retail locations, Insta-Mix does not ship the
product directly to Wal-Mart stores but, in-
stead, trucks or third-party carriers assigned by
Wal-Mart transport the bottles from Insta-
Mix’s dock in Colorado Springs to one of
twenty-six distribution centers nationwide.
The vendor agreement that gives Wal-Mart
the right to purchase and retail these bottles in-
dicates that Wal-Mart assumes ownership of
the bottles when they are loaded in Colorado
Springs. The agreement also mentions several
possible distribution centers, but none in Loui-
siana. Wal-Mart transported 3,696 copies of
the bottle, or approximately 65 shipments,
with total revenue to Insta-Mix of $8,923.20,
to its distribution center in Opelousas, Louisi-
ana.
Insta-Mix received and filled purchase or-
ders from Wal-Mart via an “Electronic Data
Interchange” (“EDI”) system, which contains
information regarding the price, quantity, and
destination of each shipment. Once an order is
filled, the EDI system automatically sends to
Wal-Mart an electronic invoice that contains
the letterhead of an Insta-Mix-related entity
and the destination address.
The record contains several invoices with a
“send to” location of the Wal-Mart distribution
center in Opelousas. Insta-Mix alleges that it
had no knowledge of the destination of the
products until it printed out information from
the EDI system in response to a discovery
request in this litigation. It appears that
eventually some of Insta-Mix’s bottles reached
Wal-Mart stores in Louisiana, repackaged
under the Wal-Mart trade name.
It is undisputed that Insta-Mix has no em-
ployees or agent for service of process in Lou-
isiana and conducts no direct sales or market-
ing there. Rather, its only contact with Louisi-
ana is its sales of items to Wal-Mart.
II.
Luv n’ care sued Insta-Mix for copyright
infringement, 17 U.S.C. § 101 et seq., and
trademark dilution and unfair competition un-
der the Lanham Act, 15 U.S.C. §§ 1125-
(a)(1)(A) and (B). Insta-Mix moved to dis-
miss under Federal Rule of Civil Procedure
12(b) (2) and (3) for lack of personal jurisdic-
tion and improper venue.
The magistrate judge issued a recommen-
dation that the suit be dismissed because
“[s]imply placing [a] product in the stream of
commerce is not sufficient to create personal
jurisdiction even if it were foreseeable that the
product might end up in Louisiana.” Because
the magistrate judge found the jurisdictional
issue dispositive, he did not reach the venue
issue. The district court adopted the recom-
mendation.
III.
We review de novo a district court’s deter-
mination that it lacks personal jurisdiction over
a non-resident defendant. Adams v. Unione
Mediterranea di Sicurta, 220 F.3d 659, 667
(5th Cir. 2000). Where a defendant challenges
personal jurisdiction, the party seeking to
invoke the power of the court bears the burden
of proving that jurisdiction exists. Wyatt v.
Kaplan, 686 F.2d 276, 280 (5th Cir. 1982).
1 Apparently the manufacturer, Royal King,
claims proprietary rights to the molds from which
the allegedly infringing bottle cap is produced.

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The plaintiff need not, however, establish jur-
isdiction by a preponderance of the evidence;
a prima facie showing suffices. Id. This court
must resolve all undisputed facts submitted by
the plaintiff, as well as all facts contested in the
affidavits, in favor of jurisdiction. Id.
The Due Process Clause of the Fourteenth
Amendment guarantees that no federal court
may assume jurisdiction in personam of a non-
resident defendant unless the defendant has
meaningful “contacts, ties, or relations” with
the forum state. Int’l Shoe Co. v. Washington,
326 U.S. 310, 319 (1945). Jurisdiction may be
general or specific. Where a defendant has
“continuous and systematic general business
contacts” with the forum state, Helicopteros
Nacionales de Colombia, S. A. v. Hall, 466
U.S. 408, 415 (1984), the court may exercise
“general” jurisdiction over any action brought
against that defendant. Id. at 414 n.9.2 Where
contacts are less pervasive, the court may still
exercise “specific” jurisdiction “in a suit arising
out of or related to the defendant’s contacts
with the forum.” Id. at 414 n.8. This case
presents only the question of specific
jurisdiction.
A federal court may satisfy the constitu-
tional requirements for specific jurisdiction by
a showing that the defendant has “minimum
contacts” with the forum state such that im-
posing a judgment would not “offend tradi-
tional notions of fair play and substantial jus-
tice.” Int’l Shoe, 326 U.S. at 316. In Nuovo
Pignone v. Storman Asia M/V, 310 F.3d 374
(5th Cir. 2002), we consolidated the personal
jurisdiction inquiry into a convenient three-
step analysis: “(1) whether the defendant . . .
purposely directed its activities toward the for-
um state or purposely availed itself of the priv-
ileges of conducting activities there;
(2) whether the plaintiff's cause of action arises
out of or results from the defendant’s forum-
related contacts; and (3) whether the exercise
of personal jurisdiction is fair and reasonable.”
Id. at 378 (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985)). The
forum state may create, and this court would
be bound to apply, additional jurisdictional re-
strictions by statute, Adams, 220 F.3d at 667,
but Louisiana’s “long-arm” statute extends jur-
isdiction to the constitutional limit, LA. R.S.
13:3201(B), so the two inquiries in this case
fold into one.
A.
To determine whether Insta-Mix has “min-
imum contacts” with Louisiana, we must iden-
tify some act whereby it “purposely avail[ed]
itself of the privilege of conducting activities
[there], thus invoking the benefits and protec-
tions of its laws.”3 The defendant’s conduct
must show that it “reasonably anticipates being
haled into court” in Louisiana. World Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980). Likewise, a defendant may
permissibly alter its behavior in certain ways to
avoid being subject to suit. Id.
The district court erred in holding that plac-
ing a product into the stream of commerce, at
least where the defendant knows the product
will ultimately reach the forum state, does not
rise to the level of “purposeful availment.”
This court has consistently held that “mere
2 Federal courts may also always assume juris-
diction over a defendant in any action in which
there is personal, in-state service of process. Burn-
ham v. Superior Court, 495 U.S. 604 (1990).
3 Hanson v. Denckla, 357 U.S. 235, 253
(1958). A single purposeful contact may confer
jurisdiction. McGee v. Int'l Life Ins. Co., 355 U.S.
220, 222 (1957).

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

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5
Insta-Mix derived substantial revenue (about
4.5% of its total distribution) from its sale of
thousands of units bound for Opelousas.8 Al-
though businesses should be able to take ad-
vantage of the increased efficiencies made pos-
sible by the electronic processing of purchase
orders, they cannot then claim ignorance of the
contents of those orders once their products
inevitably reach the intended market.9
Finally, Insta-Mix argues that it has struc-
tured its primary conduct to avoid jurisdiction
by including in the vendor agreement a condi-
tion that transfers ownership from Insta-Mix
to Wal-Mart at the time that Wal-Mart re-
ceives its shipments in Colorado Springs.
Jurisdiction, however, “does not depend on the
technicalities of when title passes;” rather,
jurisdiction may attach both to manufacturers
who supply their own delivery systems and to
those that make use of the distribution systems
of third parties. Oswalt, 616 F.2d at 197 n.8.10
In the interest of promoting that “degree of
predictability to the legal system that allows
potential defendants to structure their primary
conduct with some minimum assurance as to
where that conduct will and will not render
them liable to suit,” World Wide Volkswagen,
444 U.S. at 297, we conclude that a F.O.B.
term does not prevent a court from exercising
personal jurisdiction over a non-resident de-
fendant where other factors, such as the quan-
tity and regularity of shipments, suggest that
jurisdiction is proper.11 This reasoning is8 See Bean Dredging, 744 F.2d at 1085 (de-
ciding that introducing merely thousands, not mil-
lions, of items into the stream of commerce “is not
enough to convince us that [defendant] had no in-
terest in reaching as broad a market as it possibly
could . . . . [T]he defendant here evidenced no at-
tempt to limit the states in which its [products]
would be sold and used.”); cf. World Wide Volks-
wagen, 444 U.S. at 299 (holding that the “marginal
revenues” derived from the fact that a product is
merely “capable of use” in a distant state is “too
attenuated a contact” to support jurisdiction).
9 See Asahi, 480 U.S. at 121 (Brennan, J., con-
curring) (finding for a four-Justice plurality that
although defendant “did not design or control the
system of distribution that carried its [products]
into [the forum state, defendant] was aware of the
distribution system’s operation, and it knew it
would benefit economically from the sale in [the
forum state] of products incorporating its compon-
ents.”) (internal quotations omitted). We further
agree with Luv n’ care that a contrary holding
would permit foreign defendants to avoid jurisdic-
tion in the United States by structuring their data
systems to shield employees from the knowledge
that their products ultimately will reach the United
States.
10 We have suggested, however, that the exis-
tence of a Free On Board (“F.O.B.”) term in a
contract is one factor to consider in determining
whether the defendant has “minimum contacts”
with the forum state. See Singletary v. B.R.X.,
Inc., 828 F.2d 1135, 1136 (5th Cir. 1987) (finding
that the “contact was weakened even further by the
fact that the sale was initiated by the buyer and
was shipped F.O.B. California, the seller’s place of
business.”); Charia v. Cigarette Racing Team,
Inc., 583 F.2d 184, 188-89 (5th Cir. 1978)
(concluding that F.O.B. shipment, without more,
does not constitute purposeful availment of the
laws of the forum state).
11 For example, in Charia, 583 F.3d at 189, the
court found that “four sporadic and isolated sales”
did not establish a sufficient basis for assertion of
jurisdiction but noted that a case in which defen-
dant “had supplied its product to the forum state in
large quantities over a lengthy period of time”
might be treated differently. Likewise, in Single-
tary the defendant had sold only one $33 part to a
resident of the forum state. See Singletary, 828
(continued...)

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6
supported by authority that states that the pri-
mary purpose of a F.O.B. term is to allocate
the risk of damage to goods between buyer
and seller.12 Accordingly, Insta-Mix purposely
availed itself of the benefit of the Louisiana
market for its bottle, thereby establishing “min-
imum contacts” with the forum state.13
B.
It is not enough to satisfy due process that
Insta-Mix has some “minimum contacts” with
Louisiana. Rather, the underlying cause of ac-
tion must “arise out of” the defendant’s con-
tacts with the forum state.14 Luv n’ care al-
leges that the presence of Insta-Mix’s products
in Louisiana infringed on Luv n’ care’s copy-
right.
“[T]his court has been reluctant to extend
the stream-of-commerce principle outside the
context of products liability cases,” including
cases involving “contract or copyright.” Nuo-
vo Pignone, 310 F.3d at 381. This is because
contracting parties have more flexibility to
tailor their relationship in view of jurisdictional
considerations than do the manufacturer and
consumer in a typical products liability case.
Id. Nevertheless, we have found jurisdiction
(...continued)
F.2d at 1136.
In those cases, the court found that the F.O.B.
condition in the contract reinforced the holding that
jurisdiction in the forum state was unforeseeable.
Here, however, jurisdiction is foreseeable because
of the regularity and quantity of shipments and the
presence of a destination address on defendant’s
invoices. Where jurisdiction is otherwise fore-
seeable, a F.O.B. term cannot deprive the court of
jurisdiction over the defendant.
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.
Roth, Jr. & William V. Roth III, Incoterms: Facil-
itating Trade in the Asian Pacific, 18 U. PA. J.
INT'L ECON. L. 731, 734 (1997) (describing the di-
vision of risk between buyer and seller in a stan-
dard incoterm and noting that “[m]ost importantly,
the risk of damage to the goods shifts from seller to
buyer exactly at the point where the goods” are
surrendered to the carrier) (internal citations
omitted).
13 We disagree with Insta-Mix that this
conclusion means that it must choose between do-
ing business with Wal-Mart or being subject to suit
in all fifty states. It is possible that Insta-Mix will
avoid suit in a jurisdiction that requires some
additional act beyond “mere foreseeability” for
personal jurisdiction to attach. See, e.g., Boit v.
Gar-Tec Prods., Inc., 967 F.2d 671, 683 (1st Cir.
1992). Moreover, we do not speak to a situation in
which, for example, jurisdiction is asserted in a
state to which the allegedly offending Insta-Mix
(continued...)
(...continued)
product has not been regularly shipped in substan-
tial quantities directly from Insta-Mix facilities.
Insta-Mix could also attach conditions to its
vendor agreement that forbid Wal-Mart from ship-
ping to those states that operate under a “mere
foreseeability” regime, or to all distribution centers
outside the Great Plains, or to any forum in which
mounting a defense would be inconvenient. The
fact that it has not done so supports our conclusion
that Insta-Mix intends to avail itself of as wide a
market for its goods as possible. See Bean
Dredging, 744 F.2d at 1085. Until presented with
such a case, we reserve judgment on the ultimate
effectiveness of any contractual condition designed
to avoid jurisdiction.
14 See Shaffer v. Heitner, 433 U.S. 186, 204
(1977) (opining that “the relationship among the
defendant, the forum, and the litigation . . . [is] the
central concern of the inquiry into personal juris-
diction”); Nuovo Pignone, 310 F.3d at 378.

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

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King, the alleged manufacturer of the bottle
top, as the more natural defendants. Nor can
the district court grant full injunctive relief
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
The judgment of dismissal is REVERSED,
and this matter is REMANDED for further
proceedings.19
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”).
18 We also note that although Wal-Mart may be
a more natural defendant in this action, the vendor
agreement between Wal-Mart and Insta-Mix states
that Insta-Mix shall defend and indemnify Wal-
Mart against, inter alia, any actual or alleged
(continued...)
(...continued)
copyright infringement.
19 Because the district court did not rule on
Insta-Mix’s alternative argument on improper ven-
ue, we do not reach that issue, and the parties are
free to raise it on remand.

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

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indicat[ing] an intent or purpose to serve the
market in the forum State,” and thereby better
comports with our country’s principles of
federalism. See Asahi, 480 U.S. at 112.
This case is the proverbial straw that breaks
the camel’s back because it stretches the
stream of commerce theory beyond its past
limits and thus deepens the divide between
circuits that require “additional conduct” and
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.
For the above reasons, I hope Insta-Mix
will apply for a writ of certiorari and I urge the
Supreme Court to take up the minimum
contacts issue and resolve it and the increasing
circuit divide with clarity. The recent changes
in the composition of the Court should
produce a new effort by the Court to
definitively answer this controversy. The
sovereignty of the individual states is on the
line.

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