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 


[by Smith]

 *468 JERRY E. SMITH, Circuit Judge: Luv n’ care, Ltd. (“Luv n’ care”), a Louisiana 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 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, instead, 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 indicates 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 Louisiana. 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 Opel-ousas, Louisiana. Insta-Mix received and filled purchase orders 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 employees or agent for service of process in Louisiana and conducts no direct sales or marketing there. Rather, its only contact with Louisiana 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 under the Lanham Act, 15 U.S.C. §§ 1125 (a)(1)(A) and (B). Insta-Mix moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and (3) for lack of personal jurisdiction and improper venue. The magistrate judge issued a recommendation that the suit be dismissed because “[sjimply placing [a] product in the stream of commerce is not sufficient to create personal jurisdiction even if it were *469 foreseeable that the product might end up in Louisiana.” Because the magistrate judge found the jurisdictional issue dispos-itive, he did not reach the venue issue. The district court adopted the recommendation. III. We review de novo a district court’s determination 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). The plaintiff need not, however, establish jurisdiction 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 , 66 S.Ct. 154 , 90 L.Ed. 95 (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 , 104 S.Ct. 1868 , 80 L.Ed.2d 404 (1984), the court may exercise “general” jurisdiction over any action brought against that defendant. Id. at 414 , 104 S.Ct. 1868 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 , 104 S.Ct. 1868 n. 8 . This case presents only the question of specific jurisdiction. A federal court may satisfy the constitutional requirements for specific jurisdiction by a showing that the defendant has “minimum contacts” with the forum state such that imposing a judgment would not “offend traditional notions of fair play and substantial justice.” Int'l Shoe, 326 U.S. at 316 , 66 S.Ct. 154 . In Nuovo Pignone v. STORMAN ASIA MJV, 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 forum state or purposely availed itself of the privileges of conducting activities there; (2) whether the plaintiffs 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. RudzeuAcz, 471 U.S. 462, 474 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985)). The forum state may create, and this court would be bound to apply, additional jurisdictional restrictions by statute, Adams, 220 F.3d at 667 , but Louisiana’s “long-arm” statute extends jurisdiction 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 “minimum contacts” with Louisiana, we must identify some act whereby it “purposely avail[ed] itself of the privilege of *470 conducting activities [there], thus invoking the benefits and protections 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 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (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 placing 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 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.” 4 We adopted this position in an effort faithfully to interpret World Wide Volkswagen, 444 U.S. at 298 , 100 S.Ct. 559 , which hold's that a state does not offend due process by exercising jurisdiction over an entity that “delivers its products into the stream of commerce with the expectation 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, 107 S.Ct. 1026 , 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 purposefully 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 Louisiana 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 midstream decision to re-route the goods to other distribution centers not listed 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 , 100 S.Ct. 559 . 7 This case, though, does not present *471 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, Insta-Mix derived substantial revenue (about 4.5% of its total distribution) from its sale of thousands of units bound for Opelousas. 8 Although businesses should be able to take advantage of the increased efficiencies made possible 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 structured its primary conduct to avoid jurisdiction by including in the vendor agreement a condition that transfers ownership from Insta-Mix.to Wal-Mart at the time that Wal-Mart receives 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 , 100 S.Ct. 559 , we conclude that a F.O.B. term does not prevent a court from exercising personal jurisdiction over a nonresident defendant where other factors, *472 such as the quantity and regularity of shipments, suggest that jurisdiction is proper. 11 This ■ reasoning is supported by authority that states that the primary 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 “minimum 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 action must “arise out of’ the defendant’s contacts with the forum state. 14 Luv n’ care alleges that the presence of Insta-Mix’s products in Louisiana infringed on Luv n’ care’s copyright. “[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.” Nuovo 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 jurisdie *473 tion 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 Fagio-li, an Italian shipper, allegedly damaged plaintiffs 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 Fagioli should have considered the possible damage that a defective crane aboard its vessel would cause in the forum state. Similarly, Insta-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 jurisdiction because there was a “highly attenuated” relationship between defendant’s contact with the forum state and plaintiffs declaratory judgment action for copyright infringement. Ham, 4 F.3d at 416 . In Ham , however, the allegedly 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 exercise of jurisdiction would “offend traditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316 , 66 S.Ct. 154 . 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 jurisdiction would be unreasonable. Nuovo Pignone, 310 F.3d at 382 . In conducting the fairness inquiry, we examine (1) the burden on the nonresident defendant, (2) the forum state’s interests, (3) the plaintiffs 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 LarMex 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 King, the alleged manufacturer of the bottle top, as the more natural defendants. Nor can the district *474 court grant full injunctive relief where Wal-Mart remains free to sell, and Royal King remains free to produce, the infringing cap. Therefore, Insta-Mix portrays this action as an effort by Luv n’ care, a major manufacturer, to intimidate a small competitor into exiting 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 unreasonable to ask Insta-Mix to defend in Louisiana, 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 jurisdiction. 18 The judgment of dismissal is REVERSED, and this matter is REMANDED for further proceedings. 19 . Apparently the manufacturer, Royal King, claims proprietary rights to the molds from which the allegedly infringing bottle cap is produced. . Federal courts may also always assume jurisdiction over a defendant in any action in which there is personal, in-state service of process. Burnham v. Superior Court, 495 U.S. 604 , 110 S.Ct. 2105 , 109 L.Ed.2d 631 (1990). . Hanson v. Denckla, 357 U.S. 235, 253 , 78 S.Ct. 1228 , 2 L.Ed.2d 1283 (1958). A single purposeful contact may confer jurisdiction. McGee v. Int'l Life Ins. Co., 355 U.S. 220, 222 , 78 S.Ct. 199 , 2 L.Ed.2d 223 (1957). . 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 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (1987)); Bean Dredging Corp. v. Dredge Tech. Corp., 744 F.2d 1081 (5th Cir.1984). . 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”). . The Asahi plurality listed the following as possible additional actions that would evidence an intent to serve the market of the forum state: "designing the product for the market in the forum State, advertising in the forum State, establishing 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. . See also Burger King, 471 U.S. at 475 , 105 S.Ct. 2174 (reasoning that defendant may not be haled into court on account of "random, fortuitous, or attenuated” contacts) (internal quotations omitted). . See Bean Dredging, 744 F.2d at 1085 (deciding that introducing merely thousands, not millions, of items into the stream of commerce “is not enough to convince us that [defendant] had no interest in reaching as broad a market as it possibly could.... [T]he defendant here evidenced no attempt to limit the states in which its [products] would be sold and used.”); cf. World Wide Volkswagen, 444 U.S. at 299 , 100 S.Ct. 559 (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). . See Asahi, 480 U.S. at 121 , 107 S.Ct. 1026 (Brennan, J., concurring) (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 components.”) (internal quotations omitted). We further agree with Luv n' care that a contrary holding would permit foreign defendants to avoid jurisdiction in the United States by structuring their data systems to shield employees from the knowledge that their products ultimately will reach the United States. .We have suggested, however, that the existence 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). . For example, in Charia, 583 F.2d 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 defendant "had supplied its product to the forum state in large quantities over a lengthy period of time” might be treated differently. Likewise, in Singletary the defendant had sold only one $33 part to a resident of the forum state. See Singletary, 828 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 foreseeable, a F.O.B. term cannot deprive the court of jurisdiction over the defendant. . Nuovo Pignone, 310 F.3d at 380 n. 5 (stating that "incoterms are used ... to allocate risk between buyers and sellers”); see also William V. Roth, Jr. & William V. Roth III, Incoterms: Facilitating Trade in the Asian Pacific, 18 U. Pa. J. Int'l Econ. L. 731 , 734 (1997) (describing the division of risk between buyer and seller in a standard 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). . We disagree with Insta-Mix that this conclusion means that it must choose between doing 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 product has not been regularly shipped in substantial quantities directly from Insta-Mix facilities. Insta-Mix could also attach conditions to its vendor agreement that forbid Wal-Mart from shipping 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 Ins-ta-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. .See Shaffer v. Heitner, 433 U.S. 186, 204 , 97 S.Ct. 2569 , 53 L.Ed.2d 683 (1977) (opining that "the relationship among the defendant, the forum, and the litigation ... [is] the central concern of the inquiry into personal jurisdiction”); Nuovo Pignone, 310 F.3d at 378 . . 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). . This reasoning applies with equal force to Luv n’ care's claims of trademark dilution and unfair 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. . See Bean Dredging, 744 F.2d at 1085 (reasoning that "[bjecause the product was used in Louisiana, because the defects surfaced in Louisiana, because the economic injury has befallen a resident of Louisiana ... that state has an interest in providing a forum for this suit”). . 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 copyright infringement. . Because the district court did not rule on Insta-Mix’s alternative argument on improper venue, we do not reach that issue, and the parties are free to raise it on remand. 


[Concurrence by DeMOSS]

 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; 1 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 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (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 *475 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. [5 Otto] 714, 722, 24 L.Ed. 565 (1877). 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. As-ahi 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 ... indicating] 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 , 107 S.Ct. 1026 . This ease 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 , 107 S.Ct. 1026 . 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. *476 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. . 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” theoty. 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.