Turnage et al v. Messersmith Manufacturing, Inc. et al
ORDER granting Defendant's 4 Motion to Dismiss for Lack of Personal Jurisdiction; granting Plaintiffs' 11 Motion for Leave to File Amended Complaint; and denying Plaintiffs' 12 Motion for Jurisdictional Discovery. Plaintiffs& #039; claims against Defendant Messersmith Manufacturing, Inc. are dismissed without prejudice. Plaintiffs shall file their Amended Complaint within two (2) weeks of the entry of this order. Failure to do so may lead to the dismissal of this case in its entirety. Signed by District Judge Keith Starrett on January 14, 2015 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JONATHAN DAVIS TURNAGE, et al.
CIVIL ACTION NO. 2:14-CV-124-KS-MTP
MESSERSMITH MANUFACTURING, INC.
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants Defendant’s Motion to Dismiss
, denies Plaintiffs’ Motion  for jurisdictional discovery, and grants Plaintiffs’
Motion  for leave to amend the complaint.
This is a product liability case. Plaintiff Jonathan Davis Turnage worked in a
lumber plant in Silver Creek, Mississippi, cleaning and maintaining an auger which
conveys wood materials to a heating system. Plaintiff alleges that the auger turned
despite being shut down and secured, and that it severed fingers from each of his
hands. He further alleges that Defendant, Messersmith Manufacturing, Inc.,
manufactured, sold, and installed the auger.
Plaintiff and his wife filed this suit, alleging design, manufacturing, and
warning defect claims under the Mississippi Product Liability Act.1 Defendant is a
manufacturing company out of Michigan that designs, fabricates, and installs custom
biomass boiler systems. It filed a Motion to Dismiss , arguing that the Court lacks
personal jurisdiction over it. Plaintiffs responded with a Motion for Leave to File 
MISS. CODE ANN. § 11-1-63.
an Amended Complaint and a Motion for Jurisdictional Discovery . The motions
are ripe for review.
Plaintiffs have the burden of making a prima facie showing that the Court has
jurisdiction over Defendant. Pervasive Software, Inc. v. Lexware GMBH & Co. KG, 688
F.3d 214, 219 (5th Cir. 2012). “In determining whether personal jurisdiction exists, the
trial court is not restricted to a review of the plaintiff’s pleadings. It may . . . determine
the jurisdictional issue by receiving affidavits, interrogatories, depositions, oral
testimony, or any combination of the recognized methods of discovery.” Jobe v. ATR
Mktg., 87 F.3d 751, 753 (5th Cir. 1996). However, the Court must accept Plaintiffs’
undisputed allegations as true and resolve all factual disputes in Plaintiff’s favor.
Pervasive Software, 688 F.3d at 219-20; McFadin v. Gerber, 587 F.3d 753, 758 (5th Cir.
“A federal court may exercise personal jurisdiction over a nonresident defendant
if (1) the forum state’s long-arm statute confers personal jurisdiction over that
defendant; and (2) the exercise of personal jurisdiction comports with the Due Process
Clause of the Fourteenth Amendment.” McFadin, 587 F.3d at 759. Defendant’s motion
only addresses the due process clause. The Court’s analysis varies depending on the
type of jurisdiction asserted. “Jurisdiction may be general or specific, depending on the
nature of the defendant’s forum-related contacts.” Jackson v. Tanfoglio Giuseppe
S.R.L., 615 F.3d 579, 584 (5th Cir. 2010).
“General jurisdiction may be found when the defendant’s contacts with the
forum state are substantial, continuous, and systematic.” Id. This test “is a difficult one
to meet, requiring extensive contacts between a defendant and a forum. To confer
general jurisdiction, a defendant must have a business presence in the forum state.
Injecting a product, even in substantial volume, into a forum state’s ‘stream of
commerce,’ without more, does not support general jurisdiction.” Id. (citations and
Plaintiffs have not offered any evidence, and the allegations of the Amended
Complaint [1-2] are insufficient to demonstrate that Defendant has “substantial,
continuous, and systematic” contacts with the state of Mississippi. Plaintiffs only
alleged that Defendant manufactured the auger that injured him.
Defendant offered the declaration [4-1] of Gailyn Messersmith, its owner.
Messersmith declared that Defendant has no plant, offices, real or personal property,
employees, bank accounts, or any other assets in Mississippi. He declared that
Defendant conducts no business in Mississippi, that it has no contracts with
Mississippi residents, and that it has never availed itself of the protection of
Mississippi’s laws or court system. He declared that Defendant has never designed or
fabricated a boiler system to be installed in Mississippi, nor has it ever installed or sold
a boiler system in Mississippi.
Plaintiffs have offered nothing to dispute Defendant’s evidence. Therefore, they
have not carried their prima facie burden to demonstrate “substantial, continuous, and
systematic” contacts with the state of Mississippi. Id. at 584-85 (defendant had no
office, bank accounts, employees, address, property in forum state; it had not registered
to do business or paid taxes in forum state; it did not directly sell any products in
“Specific jurisdiction exists when the defendant has purposefully directed his
activities at residents of the forum . . . and the litigation results from alleged injuries
that arise out of or relate to those activities.” Clemens v. McNamee, 615 F.3d 374, 378
(5th Cir. 2010). The Court “applies a three-step analysis to determine specific
jurisdiction: (1) whether the defendant has minimum contacts with the forum state;
(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.” Jackson, 615 F.3d at 585; see also Ainsworth v. Moffett Eng’g, Ltd., 716
F.3d 174, 177 (5th Cir. 2013). The crux of the analysis “is whether the defendant’s
conduct shows that it reasonably anticipates being haled into court.” McFadin, 587
F.3d at 759.
“In cases involving a product sold or manufactured by a foreign defendant, [the
Fifth Circuit] has consistently followed a ‘stream-of-commerce’ approach to personal
jurisdiction, under which the minimum contacts requirement is met so long as the
court ‘finds that the defendant delivered the product into the stream of commerce with
the expectation that it would be purchased by or used by consumers in the forum
state.” Ainsworth, 716 F.3d at 177. “[M]ere foreseeability or awareness is a
constitutionally sufficient basis for personal jurisdiction if the defendant’s product
made its way into the forum state while still in the stream of commerce, but the
defendant’s contacts must be more than random, fortuitous, or attenuated, or of the
unilateral activity of another party or third person.” Id. (punctuation and citations
Here, Plaintiff offered no evidence and only alleged that Defendant
manufactured the auger which caused his injury. Defendant provided an undisputed
declaration [4-1] from its owner that Defendant has never 1) contracted with a resident
of Mississippi, 2) designed or fabricated a boiler system to be installed in Mississippi,
or 3) installed or sold a boiler system in Mississippi.
Defendant’s owner also declared that he was unaware of any system designed,
fabricated, or installed by Defendant having been moved into Mississippi from an outof-state facility. He explained that Defendant’s biomass boiler heating systems are
designed and fabricated specifically for each customer’s facility; the systems are “large,
heavy and essentially unmovable, unless . . . first disassembled.” Defendant provided
one of its brochures [4-2], which includes photographs of one of their boiler systems,
demonstrating their size and complexity.
Defendant has a contract with a marketing company to sell its boiler systems
in New England, but the marketing company’s territory does not extend to Mississippi.
Defendant admits that it has received one inquiry from an individual in Mississippi
through its website (which does not specifically target Mississippi), but the individual
was not Plaintiff or his employer. Defendant provided an estimate for a boiler system,
and nothing further happened.
Defendant argues that these facts demonstrate that it is not foreseeable that one
of its boiler systems would make its way through the stream of commerce into
Mississippi. Defendant argues that the system at issue – if it is, in fact, one of
Defendant’s boiler systems – had to have been disassembled and transported to
Mississippi from out of state, because of Defendant’s lack of any meaningful contacts
with Mississippi, 2 the fact that its systems are specially designed for the facilities in
which they are installed, and each systems’ size and weight.
The Court agrees that the evidence demonstrates that it is not foreseeable that
one of Defendant’s large, heavy boiler systems custom designed for an out-of-state
facility would make its way into Mississippi. Defendant has not marketed, sold, or
installed its systems in Mississippi. If the boiler system at issue was manufactured by
Defendant, it had to have been brought into the state by “the unilateral activity of
another party or third person,” and that is not a constitutionally sufficient basis for the
exercise of personal jurisdiction. Id.; see also In re Chinese-Manufactured Drywall
Prods., 753 F.3d 521, 548 (5th Cir. 2014). “Once a product has reached the end of the
stream of commerce and is purchased, a consumer’s unilateral decision to take a
product to a distant state, without more, is insufficient to confer personal jurisdiction
over the manufacturer or distributor.” Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d
266, 273 (5th Cir. 2006). Even if Defendant had directly sold and installed the subject
Plaintiffs have not argued that Defendant’s website and the single online
inquiry from a Mississippi resident are enough to establish jurisdiction.
boiler system to Plaintiff’s employer, a single isolated sale is not sufficient to establish
specific personal jurisdiction. See J. McIntyre Machinery, Ltd. v. Nicastro, – U.S. –, 131
S. Ct. 2780, 2792, 180 L. Ed. 2d 765 (2011); Ainsworth, 716 F.3d at 178 (“a single
isolated sale” is not an adequate basis for personal jurisdiction).
In summary, the record contains no evidence or allegation indicating that
Defendant should “reasonably anticipate being haled into court” in Mississippi.
Seiferth, 472 F.3d at 273. In fact, the record demonstrates the opposite. Accordingly,
the Court’s exercise of personal jurisdiction over Defendant would violate the Due
Process Clause of the Fourteenth Amendment.
Plaintiffs argue that they should be permitted to conduct jurisdictional
discovery. They request permission to serve interrogatories and requests for
production, as well as to conduct “two or three depositions to determine . . . if a
Messersmith auger is installed in a plant in Mississippi; [w]hether or not Messersmith
knew, or should have known, that the auger foreseeably would be installed in a plant
in Mississippi; and the party or parties who designed, or built, [the] biomass boiler
system at” Plaintiff’s employer.
“As the party opposing dismissal and requesting discovery, the plaintiffs bear
the burden of demonstrating the necessity of discovery.” Monkton Ins. Servs. v. Ritter,
768 F.3d 429, 434 (5th Cir. 2014). They are “not entitled to jurisdictional discovery
when the record shows that the requested discovery is not likely to produce the facts
needed to withstand a” motion to dismiss. Id. The Court has “broad discretion in all
discovery matters.” Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 856 (5th
Cir. 2000). “When the lack of personal jurisdiction is clear, discovery would serve no
purpose and should not be permitted.” Id.
Plaintiffs have not demonstrated that their requested discovery would alter the
outcome of Defendant’s motion. Plaintiffs want to determine whether Defendant
manufactured and installed the boiler system which allegedly caused their injuries. A
single isolated sale is not sufficient to establish specific personal jurisdiction. See
McIntyre, 131 S. Ct. at 2792; Ainsworth, 716 F.3d at 178. Therefore, even if Plaintiffs
uncover evidence demonstrating that the boiler system at issue was manufactured,
sold, and installed by Defendant, the exercise of personal jurisdiction would still be
improper. The Court further notes that Plaintiffs seek leave to amend their complaint
to add another defendant who allegedly designed, manufactured, or installed the
subject heating system.
Plaintiffs seek leave to amend their complaint to add another defendant. Rule
15 provides that “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so
requires.” FED. R. CIV. P. 15(a)(2). Defendant does not object to the amendment insofar
as it does not affect the Court’s subject matter jurisdiction, and Plaintiffs represent
that the proposed defendant is an Alabama corporation. Therefore, the Court grants
Plaintiffs’ Motion for Leave to File  an Amended Complaint.
For the reasons stated above, the Court grants Defendant’s Motion to Dismiss
 for lack of personal jurisdiction and denies Plaintiffs’ Motion to Allow Limited
Discovery . Plaintiffs’ claims against Defendant Messersmith Manufacturing, Inc.
are dismissed without prejudice.
The Court grants Plaintiffs’ Motion for Leave to File  an Amended
Complaint. Plaintiffs may file an Amended Complaint that conforms with the changes
proposed in their motion. Plaintiffs shall file the Amended Complaint within two
weeks of the entry of this order, and failure to do so may lead to the dismissal of
this case in its entirety.
SO ORDERED AND ADJUDGED this 14th day of January, 2015.
UNITED STATES DISTRICT JUDGE
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