711 F.2d 1260

Jose DeMELO and Marie DeMelo, Plaintiffs-Appellants, v. TOCHE MARINE, INC., et al., Defendants, Woolsey Marine Industries, Inc., Defendant-Appellee.

No. 82-4197.

United States Court of Appeals, Fifth Circuit.

Aug. 15, 1983.

*1262Norman Breland, Gulfport, Miss., Joshua M. Morse, III, Tallahassee, Fla., for plaintiff s-appellants.

George F. Bloss, III, Gulfport, Miss., for defendant-appellee.

Before GOLDBERG, GEE and RANDALL, Circuit Judges.

GEE,

Circuit Judge:

On a day in April of 1979, Jose DeMelo was applying spray paint aboard a vessel being constructed for George Engine Company, Inc. (“George Engine”) by his employer, Toche Marine, Inc. (“Toche Marine”) at its shipyard in Biloxi, Mississippi. An explosion and flash fire suddenly occurred, allegedly due to the ignition of flammable paint vapors. DeMelo suffered severe burns. He and his wife brought this suit in federal court in Mississippi naming George Engine, Toche Marine, and Woolsey Marine Industries, Inc. (“Woolsey”), the manufacturer of the paint, as defendants. The claims against George Engine and Toche Marine were based upon general maritime law and the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905 (1976) (the “LHWCA”). The DeMe-los sought recovery from Woolsey based upon breach of implied warranty and strict liability.

Woolsey entered a special appearance and filed a motion to dismiss under Rule 12, Federal Rules of Civil Procedure, for lack of subject matter and personal jurisdiction.1 The district court granted Woolsey’s motion on the latter ground, finding that “Woolsey has never had that minimal contact with the State of Mississippi to accord this suit the benefit of due process.” In this interlocutory appeal,2 the *1263DeMelos contend that for two reasons the district court erred in dismissing Woolsey. First, they argue that Woolsey has waived its personal jurisdiction defense; second, they urge that Woolsey’s contacts with Mississippi render it amenable to the jurisdiction of a federal district court sitting there.

I.

Before the plaintiffs commenced the present lawsuit in Mississippi, Woolsey had filed a Chapter 11 bankruptcy petition in the Bankruptcy Court for the Eastern District of New York. That court entered an automatic stay under 11 U.S.C. § 362 (Supp. Ill 1979), which had the effect, among other things, of prohibiting litigation against Woolsey. Upon the filing of the present lawsuit, the plaintiffs were made aware of the automatic stay, and in January of 1981 they filed a complaint seeking relief from it. On April 20, 1981, the Bankruptcy Court approved a stipulation entered into by plaintiffs, Toche Marine and Woolsey, which provides in relevant part:

1. Joseph De Melo, Marie De Melo, Lucy De Melo and Carlos De Melo, plaintiffs in this adversary proceeding (“plaintiffs”), and Toche Marine, Inc. (“Toche”), should be and hereby are relieved, on consent of Woolsey Marine Industries, Inc. (“Wool-sey”), as Debtor and Defendant in this proceeding, from the provisions of Section 362 of the Bankruptcy Code to the extent that they may continue the aforesaid action brought in the United States District Court for the District of Mississippi referred to hereinabove; and
2. Plaintiffs and Toche waive any and all rights they may have to claim against Woolsey or the estate of Woolsey Marine Industries, Inc., Debtor in these bankruptcy proceedings, for satisfaction of any judgment or any other right they may have or obtain in the aforementioned action now pending in the United States District Court for the District of Mississippi, or otherwise, they agreeing to proceed solely against Aetna Insurance Company and the proceeds of the above-mentioned insurance policy to the limits of Woolsey’s coverage thereunder, for any and all relief they might otherwise be entitled to against Woolsey or the bankrupt estate herein; and
3. The relief from the stay as provided for in this stipulation is contingent upon the consent of Aetna’s counsel, Thomas L. Stennis, Esq., and also upon approval of the United States Bankruptcy Court of all of the provisions hereof and it is expressly reserved that the automatic stay provided for in Section 362 of the Bankruptcy Code as respects Woolsey is modified only to the extent that the plaintiffs herein and Toche are relieved from the terms and conditions thereof and no other party to the said action now pending in Mississippi, or otherwise, shall be deemed to have been in any way or to any extent, contingent, or otherwise, relieved from the said stay, said stay remaining in full force and effect against all such parties other than the plaintiffs herein and Toche now existing or hereinafter appearing.

Plaintiffs argue that the provision in paragraph 1 of the stipulation lifting the automatic stay so that the parties “may continue” the litigation in Mississippi constitutes a waiver by Woolsey of its personal jurisdiction defense. This argument is frivolous. Though perhaps inartfully drawn, the stipulation as a whole clearly indicates that its only purpose was to remove the barrier to the present litigation erected by the Chapter 11 petition, not to affect substantive rights in this ease. Nothing in it says that the present litigation must “continue” past a valid motion to dismiss. The right to be tried only by a court of competent jurisdiction is a liberty interest protected by the Constitution. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guiñee, 456 U.S. 694, 701-02, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492, 501 (1982). It is a commonplace that waiver of constitution*1264al rights in any context must “at the very least, be clear” to be effective. Fuentes v. Shevin, 407 U.S. 67, 95, 92 S.Ct. 1983, 2001, 32 L.Ed.2d 556 (1972) (emphasis original); cf. Petrowski v. Hawkeye-Security Insurance Co., 350 U.S. 495, 76 S.Ct. 490, 100 L.Ed. 639 (1956) (example of a stipulation clearly waiving personal jurisdiction defense). Paragraph 2 of the stipulation shows that the parties knew how to provide clearly for waiver when one was intended. Woolsey’s personal jurisdiction defense has not been waived.3

II.

The plaintiffs’ second contention is that the district court erroneously determined that Woolsey was not amenable to personal jurisdiction in federal court in Mississippi. The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process. Terry v. Raymond Int’l, Inc., 658 F.2d 398, 401 (5th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 443 (1982). Amenability to jurisdiction means that a defendant is within the substantive reach of a forum’s jurisdiction under applicable law. Id. Service of process is simply the physical means by which that jurisdiction is asserted. Id. Plaintiffs effected service of process on Woolsey pursuant to the Mississippi long-arm statute,4 by serving the Mississippi Secretary of State. Woolsey has not challenged the technical effectiveness of the physical service; it attacks only its amenability to the jurisdiction of the district court under applicable law.

A.

A threshold question, not originally addressed by the parties or the district court, is whether Woolsey’s amenability to personal jurisdiction in this case is governed by a federal or state standard. Unfortunately we are faced with an embarrassment of riches on this subject — our decisions are in conflict. Although both parties accepted our invitation to brief this issue supplemen-tally, neither has come to grips with it. Even so, the point is important to our law and we must address it, assisted or no.

A little background is necessary to understand this issue fully. It is well-settled that a defendant is amenable to the personal jurisdiction of a federal court in a diversity case to the extent permitted a state court in the state where the federal court sits. Brown v. Flowers Industries, Inc., 688 F.2d 328,331 (5th Cir.1982); Terry, 658 F.2d at 401; Gold-Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375 (5th Cir.1980) (collecting cases). In other words, a state standard applies in diversity cases: the federal court may assert personal jurisdiction only if the cognate state court could have done so. There are two components of *1265the state standard. First, the state’s long-arm statute, as interpreted by the state courts, must apply. Second, its application in the particular case must comport with the due process requirements of the fourteenth amendment. Brown, 688 F.2d at 331-32; Terry, 658 F.2d at 401. Thus, the state standard, in referring to the power of state courts, incorporates elements of both state and federal law.

The question in the present case is what standard of amenability should apply when the plaintiff’s claims are founded in part upon federal question jurisdiction, but service of process is effected under a state long-arm statute. The two most recent Fifth Circuit cases on this point, decided only three days apart, give different answers. The second of these, issued on December 17 of last year, held that a federal standard applies:

[T]he otherwise-threshold inquiry of whether the state long-arm statute asserts jurisdiction over the defendant sought to be joined in suit, is irrelevant “where the power of the federal court ... can be independently sustained ... on the ground that the matter in controversy arises under the Constitution, laws or treaties of the United States.” Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147, 153-54 (5th Cir.1954).

Lapeyrouse v. Texaco, Inc., 693 F.2d 581, 585 (5th Cir.1982). Although the physical means of service in federal question cases may be prescribed by state law, see discussion of Fed.R.Civ.P. 4, infra, Lapeyrouse held that state limitations upon amenability to jurisdiction are inapplicable in such cases. Instead, the court held the “sole test of amenability” in such cases is the due process clause of the fifth amendment. 693 F.2d at 585. '

Three days before Lapeyrouse was decided, another panel of our court had reached the opposite result in Burstein v. State Bar of California, 693 F.2d 511 (5th Cir.1982). That panel approached the problem by analyzing the terms of Fed.R.Civ.P. 4, the general statutory basis for assertion of personal jurisdiction in the federal courts.5 Burstein held that the “clear import” of Rule 4, “at *1266least where the assertion of jurisdiction and not just the service of process depends on the state statute, is that a federal court, even in a federal question case, can use a state long-arm statute only to reach those parties whom a court of the state could also reach under it.” Id. at 514 (emphasis added). In so holding, the Burstein court distinguished a number of earlier Fifth Circuit cases, including those relied upon in Lapey-rouse, which undertook to announce a broad rule requiring a federal amenability standard in federal question cases generally. See id. at 515-17.6 Having reviewed those authorities and others, together with the terms and history of Rule 4, we adopt the Burstein approach. To explain why, we will first briefly recount the Burstein analysis of Rule 4 and then discuss our other authorities in light of it.

In Burstein, a Louisiana resident sued the State Bar of California under 42 U.S.C. § 1983 alleging that its erroneous grading of her bar examination violated her constitutional rights. In addition to this federal question, she also raised diversity claims of negligence and breach of contract. We can do no better than the Burstein court’s own succinct analysis of Rule 4, so we reproduce it here in full:

Fed.R.Civ.P. 4 provides for service of process in cases brought in federal court. While by its terms rule 4(d) might well apply to this case, it is clear that rule 4(e) is designed for use to obtain service on parties not resident within the forum state, and by negative implication it excludes rule 4(d). See 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore’s Federal Practice ¶¶4.32[1], 4.41-1[3] (1982). We thus direct our attention solely to rule 4(e), which has three provisions relevant to our analysis.
The first part of the first sentence of rule 4(e) applies “[wjhenever a statute of the United States ... provides for service of a summons ... upon a party not an inhabitant of or found within the state in which the district court is held ...” and the federal statute or a court order thereunder prescribes a manner of service. Jurisdiction is then asserted by the federal statute and service is made “under the circumstances and in the manner prescribed by the statute or order....”
The second part of the first sentence applies when a federal statute provides for service, thus asserting jurisdiction, but does not prescribe the manner of service. In that case, “service may be made ... in a manner stated in this rule,” i.e., rule 4.
Neither one of these provisions applies to this case, because neither section 1983 nor section 1343 even “provides” for service. It is thus necessary to examine the second sentence of rule 4(e), which states:
Whenever a statute ... of the state in which the district court is held provides ... for service of a summons ... upon a party not an inhabitant of or found within the state, ... service may ... be made under the circumstances and in the manner prescribed in the statute. . ..
The clear import of the “under the circumstances” language, at least where the assertion of jurisdiction and not just the service of process depends on the state statute, is that a federal court, even in a federal question case, can use a state long-arm statute only to reach those parties whom a court of the state could also reach under it.

693 F.2d at 514 (footnote omitted). To summarize, the Burstein court concluded that when a federal question case is based upon a federal statute that is silent as to service of process, and a state long-arm statute is therefore utilized to serve an out-of-state defendant, Rule 4(e) requires that the state’s standard of amenability to jurisdiction apply. We think that this exposition of the Rule is the more sound.7

*1267One possible alternative to the Burstein analysis is that Rule 4(e) with its “under the circumstances” language is only one alternate means of service upon non-residents, and that Rule 4(d)(7), providing for service in the “manner,” but not under the “circumstances” of state law, is by its terms equally available. Although reading Rule 4(e) as the Burstein court did — as exclusive in this context — seems the most sensible construction of the terms of Rule 4 as a whole, it is nevertheless true that the history of Rule 4 suggests that the drafters may have considered Rules 4(d)(7) and (e) to be alternative provisions for service of process outside the forum state. See 4 C. Wright & A. Miller, Federal Practice & Procedure §§ 1112-14 (1969) (discussing 1963 amendments to Rule 4); 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore’s Federal Practice ¶ 4.32[1] at 4-342 n. 2 (1982) (same). Nevertheless, courts and commentators agree that even if Rule 4(d)(7) be treated as an alternative for out-of-state service, care must be taken not to read the amenability language out of Rule 4(e) in the process:

Rule 4(d)(7), however, is silent on the question of amenability to service, or more simply, when a state long-arm statute may be used.... Accordingly, when the rule is being used to apply a state long-arm statute, it must be read together with Rule 4(e), ... which does provide standards for service upon a party not an inhabitant of or found within the state. Specifically, the last clause of Rule 4(e) provides that out-of-state “service may be made under the circumstances and in the manner prescribed in the state statute or rule.” (emphasis supplied). In other words, service under a constitutionally valid long-arm statute in a federal court is only possible in the situations where the in-state activities of the defendant would be sufficient to invoke the long-arm statute had defendant been sued in state court. The “manner of service” language in Rule 4(d)(7) and the “circumstances of service” language in Rule 4(e) must both be satisfied.

Stanley Works v. Globemaster, Inc., 400 F.Supp. 1325, 1337-38 (D.Mass.1975) (citations omitted), quoted in 2 J. Moore, et al., supra, ¶ 4.41 — 1[3] at 4-468; Navarro v. Sedco, Inc., supra, 449 F.Supp. at 1357-58 n. 1 (“Alternatively, the court notes that where Rule 4(d)(7) and 4(e) have been viewed interchangeably as authorizing extraterritorial service pursuant to state long arm statutes, personal jurisdiction questions have been analyzed both in terms of due process and amenability under the state statute that was invoked, notwithstanding the differences in wording between these parts of *1268the rule.”), citing Time, Inc. v. Manning, 366 F.2d 690 (5th Cir.1966) (discussed infra); 4 C. Wright & A. Miller, supra, § 1114 at 469 (“Since neither the Advisory Committee Notes nor the text of the rule provides any clear distinction between the two provisions and there is no apparent reason to prefer the use of one or the other rule in connection with extraterritorial service pursuant to state law, nothing should turn on plaintiff’s use of Rule 4(d)(7) rather than Rule 4(e) or vice versa.”).

Having concluded that Rule 4 was properly interpreted and applied in Burstein, we must ask whether the principle of stare decisis prevents this panel from following it. Burstein discussed a number of prior Fifth Circuit decisions, concluding that none of them was inconsistent with its view of Rule 4. 693 F.2d at 515-17. By contrast, two of these cases were treated as controlling in Lapeyrouse. Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147 (5th Cir.1954); Terry v. Raymond International, Inc., 658 F.2d 398 (5th Cir. 1981).

Lone Star is the source of the broad dictum applied in Lapeyrouse that amenability in federal question cases generally is governed by a federal standard. Nevertheless, it is clear that Lone Star does not preclude the interpretation of Rule 4 reached in Burstein. First, in an alternative holding, the Lone Star court held service of process proper pursuant to Rule 4(d)(3), which provides for service upon an agent wholly apart from any provision of state law. See Burstein, 693 F.2d at 515; Jim Fox Enterprises, Inc. v. Air France, 705 F.2d 738 at 741 n. 8 (5th Cir.1983). A much more critical distinction, however, is that Lone Star was decided in 1954, long before the 1963 amendments to Rule 4 added the second sentence of Rule 4(e). Thus, at the time of Lone Star, nothing in Rule 4 required that service of process ever be asserted “under the circumstances” permitted by state law. See 4 C. Wright & A. Miller, supra, § 1075 at 312-13 (discussion of 1963 amendments). Accordingly, even Lone Star’s alternative holding that service was proper under Rule 4(d)(7) and the Texas long-arm statute is consistent with Bur-stein. The Rule as it then stood provided only for service in the “manner” of state law, saying nothing regarding amenability. Had Burstein come upon the heels of the 1963 amendments to Rule 4, there would be virtually no question that it stated a proper modification of Lone Star in light of intervening legislative action.

Unfortunately that was not the case. Like a Tower of Babel, our post-1963 pronouncements spoke in irreconcilable voices.8 Without citing or attempting to distinguish Lone Star, or discussing the amendments to Rule 4, we at least twice applied a state standard of amenability in federal question cases. Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1138 (5th Cir.1980) (a Jones Act case in which the court cited a diversity case as stating the amenability standard and continued, “we must here decide if the defendants’ contacts with Texas were sufficient to permit Texas to assert jurisdiction”), cert. denied, 451 U.S. 1008, 101 S.Ct. 2345, 68 L.Ed.2d 861 (1981); Time, Inc. v. Manning, 366 F.2d 690, 693 (5th Cir.1966) (also applying the diversity standard). Not surprisingly, the lower courts under our supervision did likewise. Bloom v. A.H. Pond Co., 519 F.Supp. 1162, 1165 & n. 2 (S.D.Fla.1981); Navarro v. Sedco, supra, 449 F.Supp. at 1357-58 n. 1 (relying in part upon Manning, supra); Stanley v. Local 926, International Union of Operating Engineers, 354 F.Supp. 1267, 1270 & n. 2 (N.D.Ga.1973). This was the state of the law when Terry v. Raymond Int'l, Inc., 658 F.2d 398 (5th Cir.1981) was decided. Terry discussed neither the 1963 amendments to Rule 4 nor any of the intervening federal question cases that had applied a state standard of amenability. Rather, relying solely upon the broad language in Lone Star, Terry applied a federal standard, treating the *1269reach of the state long-arm statute as “irrelevant.” 658 F.2d at 402.

The court in Burstein thought Terry distinguishable on its facts. See 693 F.2d at 516. Although we are not súre that this is so,9 we are sure that it does not matter. Even if the facts in Terry were precisely equivalent to those in Burstein, the latter court could not be bound by Terry’s result; one that was itself inconsistent with prior authority. Our court having failed to speak with one voice in the matter, there simply was no settled rule of law for the Burstein court to apply. In such a case, we think the best approach is to do what that court did: look to the Rule.

In our case, as in Burstein, the Rule tells us to ask whether a Mississippi court could have asserted personal jurisdiction over the defendant. The LHWCA, like § 1983, the statute applicable in Burstein, is silent as to service of process in actions like the one before us. See 33 U.S.C. §§ 905(b), 933 (1976); but compare id., § 921(c) (nationwide service of process provided in proceedings for review of a compensation award by a court of appeals). Accordingly, the second sentence of Rule 4(e) is applicable and requires that Woolsey be served “under the circumstances and in the manner” prescribed by the Mississippi long-arm statute as interpreted by that state’s courts.

B.

The relevant portion of the Mississippi long-arm statute extends jurisdiction to any nonresident defendant “who shall commit a tort in whole or in part in this state against a resident of this state.” See note 4, supra. This provision, which was added by amendment in 1964, has been authoritatively construed to extend the jurisdiction of Mississippi courts to hear cases like the present one:

Under the amended statute, a nonresident manufacturer of a dangerously defective or unsafe product who places it in interstate commerce for the purpose of distribution and ultimate sale to consumers in other States, whether with a specific intent that it be distributed, sold and used in this State or not, may be subjected to a personam action for damages in the courts of this State by such consumer who may be injured in this State as a result of its defective or unsafe condition.

Smith v. Temco, Inc., 252 So.2d 212, 216 (Miss.1971); Mandel v. James Graham Brown Foundation, Inc., 375 So.2d 1017 (Miss.1979) (Temco applied in negligence action); Miller v. Glendale Equipment & Supply, Inc., 344 So.2d 736 (Miss.1977); (Temco applies under contract portion of long-arm statute); see also Brown v. Flowers Industries, Inc., 688 F.2d at 333; Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1005-06 n. 1 (5th Cir.1981).10 *1270Since Woolsey may be reached by Mississippi’s long arm, the only remaining question is whether that grasp is constitutional.

C.

The Supreme Court recently explained afresh the nature of the fourteenth amendment due process limitation on state court personal jurisdiction:

The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Thus, the test for personal jurisdiction requires that “the maintenance of the suit ... not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe v. Washington, 326 U.S. 310, 316 [66 S.Ct. 154, 158, 90 L.Ed. 95] (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278] (1940).

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03, 102 S.Ct. 2099, 2104-05, 72 L.Ed.2d 492, 501-02 (1982) (footnote omitted). Although one member of the Court expressed concern that this formulation of the due process requirement signaled an abandonment of the “minimum contacts” test developed in modern personal jurisdiction cases,11 456 U.S. at 709, 102 S.Ct. at 2108, 72 L.Ed.2d at 508-09 (Powell, J., concurring), the majority affirmed its adherence to the “minimum contacts” requirement. Id. at 702-03 n. 10, 102 S.Ct. at 2104-05 n. 10, at 501 n. 10. Accordingly, in Burstein, we held that after Insurance Corp. of Ireland “the standard must be simply ‘traditional notions of fair play and substantial justice’ with ‘contacts’ viewed as a way of demonstrating whether the standard is satisfied.” 693 F.2d at 517-18.

The subject of due process limitations upon state court exercise of personal jurisdiction recently has received extensive and scholarly treatment in our court. Burstein, 693 F.2d at 517-23; Brown v. Flowers Industries, Inc., 688 F.2d 328, 331-34 (5th Cir.1982); Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1006-12 (5th Cir.1981). We see no reason to reinvent the wheel here; the precedential and doctrinal landscape has been thoroughly surveyed in these cases. Judge Rubin has ably summarized the principles we must apply:

The number of contacts with the forum state is not, by itself, determinative.... What is more significant is whether the contacts suggest that the nonresident defendant purposefully availed himself of the benefits of the forum state.
“When a defendant purposefully avails himself of the benefits and protection of the forum’s laws — by engaging in activity ... outside the state that bears reasonably foreseeable consequences in the state — maintenance of the law suit does not offend traditional notions of fair play and substantial justice.” ... In addition to the existence of foreseeable consequences, courts consider “the quantity of contacts, and the source and connection of the cause of action with those contacts” in determining whether a defendant’s actions constitute “purposeful availment.”
Two other factors are also relevant in determining whether the exercise of personal jurisdiction comports with due process. The first is “the interest of the state in providing a forum for the suit.” .. .• Finally, the “relative conveniences and inconveniences to the parties” are also relevant.

Brown v. Flowers Industries, Inc., 688 F.2d at 333 (citations and footnotes omitted).

The plaintiffs bear the burden of establishing the trial court’s personal jurisdiction over Woolsey. Brown, 688 F.2d at 332. But where, as here, the district court decided the defendant’s motion without an evidentiary hearing and solely on the basis of affidavits and depositions, the plaintiffs’ *1271burden is met by the presentation of a prima facie case for personal jurisdiction. Id.; Data Disc, Inc. v. Systems Technology Assos., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).12 Moreover, all conflicts in the facts alleged in opposing affidavits “must be resolved in plaintiff[s’] favor for purposes of determining whether a prima facie case for in personam jurisdiction has been established.” Id. (quoting United States Ry. Equipment Co. v. Port Huron & Detroit R.R., 495 F.2d 1127, 1128 (7th Cir.1974).

We have reviewed all the materials presented to the district court on the jurisdictional issue and conclude that the plaintiffs have made out a prima facie case. Certain facts are uncontroverted. Woolsey is a New York corporation and has neither qualified to do business in Mississippi nor received any license or franchise from that state. It has never directly or indirectly owned or leased property there. It has never maintained any bank account, office, telephone, book of account, or address in Mississippi. No employee or agent has ever lived there. In arguing that the absence of these contacts precludes jurisdiction, Woolsey glosses over one critical and undisputed fact. In its affidavits opposing the plaintiffs’ motion to dismiss, Woolsey admitted that it sold its products to various Mississippi entities at its New Orleans office, and most important, that it shipped these products into Mississippi.13 Thus, contrary to Woolsey’s suggestion, this is not a pure “stream of commerce” case in which a sale, followed by the unilateral action of the purchaser in transporting the goods tó a different state, is relied upon to subject the seller to the jurisdiction of that state’s courts.14

This is not a case in which the seller has structured its primary conduct to avoid contact with the forum state. See World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. Rather, by its own affirmative acts Woolsey has introduced its products into Mississippi for use in that state. By these shipments, Woolsey has “purposefully availed” itself of the privilege of conducting activities in Mississippi and its “conduct and connection with the forum State are such that [it] should reasonably anticipate being haled into court there.” Id. Plaintiffs’ pri-ma facie case on the purposeful availment issue has been made out.15

*1272In addition to Woolsey’s “purposeful availment” of the benefits of Mississippi, we find that the other relevant factors support the assertion of personal jurisdiction in this case. Principal among these is “the interest of the state in providing a forum for the suit.” Brown v. Flowers Industries, Inc., 688 F.2d at 333 (quoting Austin v. North American Forest Products, Inc., 656 F.2d 1076, 1090 (5th Cir.1981)). Mississippi has an exceptionally strong interest in providing a forum for the redress of injuries to its residents occurring within its borders and caused by an allegedly defective product shipped from outside the state. Cf. Restatement (Second) of Conflicts of Laws § 146 (1971). This interest is based on more than the fact that the injured party is a Mississippi resident, though that fact alone is significant. Also important is the practical consideration that most product liability cases involve multiple parties. Where an accident caused by a defective product occurs within a state, it is likely that parties other than the plaintiff, such as retailers or employers, will also reside there. In this situation, the state has a substantial interest in providing a forum so that all claims arising from the accident may be litigated by its residents conveniently and efficiently in one court at one time. In these cases, the interest of the state is intertwined with the final factor discussed in Brown, the “relative conveniences and inconveniences to the parties.” 688 F.2d at 333. Thus, in the present case, where the plaintiff and two of three defendants reside in Mississippi, while the third defendant maintains a business location in nearby New Orleans, we find that the interests of the state, as well as the relative interests of the parties, favor exercise of jurisdiction by a Mississippi court. We therefore conclude based upon all considerations which we have discussed that plaintiffs have prima facie demonstrated that allowing this lawsuit to proceed in the Mississippi district court would not offend “traditional notions of fair play and substantial justice.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guiñee, 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).16

The judgment of the district court is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

DeMelo v. Toche Marine, Inc.
711 F.2d 1260

Case Details

Name
DeMelo v. Toche Marine, Inc.
Decision Date
Aug 15, 1983
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711 F.2d 1260

Jurisdiction
United States

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