United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT KNOW
INK, LLC’S MOTION  TO DISMISS FOR LACK OF PERSONAL
JURISDICTION AND LACK OF PROPER VENUE AND DENYING DEFENDANT
KNOW INK, LLC’S ALTERNATIVE MOTION  TO TRANSFER
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
MATTER IS BEFORE THE COURT on Defendant Know Ink, LLC’s
Motion  to Dismiss for Lack of Personal Jurisdiction and
Lack of Proper Venue Or, in the Alternative, Motion to
Transfer Venue. After review of the Motion, the record, and
relevant legal authority, the Court finds that it lacks
personal jurisdiction over Defendant Know Ink, LLC, and the
Motion  to Dismiss for Lack of Personal Jurisdiction
should be granted. The Court further finds that the
alternative Motion  to Transfer Venue should be denied.
matter arises out of a distributorship agreement entered into
between Plaintiff Omni Technologies, LLC
(“Plaintiff” or “Omni”), and
Defendant Know Ink, LLC (“Defendant”). Compl. 
at 2. Plaintiff is a Mississippi limited liability
corporation, id. at 1, with its principal place of
business in Mississippi, Mem. in Opp’n  at 1.
Defendant is a Missouri limited liability corporation, Compl.
 at 1, and both of its members reside in Missouri.
parties’ business relationship began on July 21, 2015,
when they entered into a contract under which Plaintiff would
act as the sole distributor of Defendant’s election
management software in the States of Mississippi and Alabama
(“July 2015 Contract”). Id. Plaintiff
and Defendant later renegotiated the July 2015 Contract and
entered into two separate agreements on March 31, 2017, one
covering Alabama and all of its counties (“Alabama
Contract”), Compl.  at 3, and one covering the
following counties in Mississippi: Jones, Hancock, Oktibbeha,
Pearl River, Warren, George, Tippah, Benton, Attala,
Tallahatchie, Yazoo, Prentiss, Chickasaw, Leflore, Jasper,
Sunflower, Grenada, Bolivar, Noxubee, and Lowndes
(“Mississippi Contract”), Mississippi Contract
[12-4] at 11. Plaintiff alleges that it signed the Alabama
Contract in its office in Bay St. Louis, Mississippi, Aff. of
Rodney Necaise [12-1] at 1, while Defendant contends this
Contract was accepted in St. Louis, Missouri, Aff. of Kevin
Schott [7-3] at 1. Under the terms of both contracts,
Plaintiff had the sole and non-assignable right to market,
promote, and solicit orders on behalf of Defendant in the
respective territory covered by each agreement. Compl.  at
3; Mississippi Contract [12-4] at 2.
the time the contracts were in effect, Defendant shipped
marketing materials to Plaintiff’s Bay St. Louis office
and conducted training sessions of Plaintiff’s
principals there. Aff. of Rodney Necaise [12-1] at 2.
Defendant also attended conferences in Mississippi.
Id.; Aff. of Kevin Schott [7-3] at 2.
September 1, 2017, nine counties in Alabama had purchased
Defendant’s software. Compl.  at 3. Plaintiff
alleges that Defendant failed to pay Plaintiff commissions
due on sales in these nine counties and four other counties
in Alabama, in an amount of no less than $197, 036.00.
Id. Plaintiff also contends that it was denied the
opportunity to provide technical support to these thirteen
Alabama counties, which would have generated additional
income over a period of three to five years. Id.
connection with the Alabama Contract, on April 2, 2018,
Defendant forwarded to Plaintiff correspondence titled,
“Notice to Cure Breach of Contract and Demand
Compliance with Distributor Responsibilities, ”
id., which gave Plaintiff thirty days to cure
certain alleged breaches identified in the letter,
Correspondence April 2, 2018 [12-6] at 1. Plaintiff disputes
whether it breached the Alabama Contract with Defendant.
Compl.  at 4.
filed suit in this Court on October 15, 2018, advancing
claims for breach of contract, bad faith, conversion, unjust
enrichment, and open account. Id. at 4-6. The bad
faith, conversion, unjust enrichment, and open account causes
of action are based upon facts alleged in the Complaint that
pertain only to the Alabama Contract. Id. at 2-6.
Specifically, these relate to the alleged failure of
Defendant to pay Plaintiff commissions on software sales in
Alabama. Id. at 4-6. Mississippi is referenced only
in the breach of contract claim, where Plaintiff states
merely that “Omni contracted with Know Ink to present
and sell Know Ink’s election management software in
Mississippi and Alabama in return for commissions.”
Id. at 4. The alleged breach is described as
“failing to remit payment as agreed and denying
Omni’s participation in the sales.” Id.
This allegation incorporates the facts stated earlier in the
Complaint, id., which only allege that Defendant
failed to pay Plaintiff commissions on Alabama sales and
denied Plaintiff participation in sales in Alabama,
id. at 3. The Complaint is devoid of any allegation
that Defendant failed to pay any commissions on Mississippi
sales or prevented Plaintiff from participating in sales in
Mississippi. See Id . Based on the Complaint in its
entirety, although Mississippi is mentioned in the breach of
contract claim, the Complaint does not allege any harm that
occurred under, or actual breaches of, the Mississippi
filed the present Motion  to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(2) and 12(b)(3), asserting that
the Court lacks personal jurisdiction over it and that venue
here is improper. Mot.  at 1. The Motion also requests
that, as an alternative to dismissal, the Court transfer the
case to the Eastern District of Missouri. Mot.  at 2.
Defendant maintains that it does not have the requisite
minimum contacts with the State of Mississippi to satisfy the
requirements of Mississippi’s long-arm statute and the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution. Id. Defendant further maintains
that venue here is improper because this district does not
fall into any of the three statutory categories set forth in
28 U.S.C. § 1391. Mem. in Supp.  at 13. Defendant
relies on the argument that almost no part of the events sued
upon occurred in Mississippi, and those actions that did
occur in Mississippi were only tangentially related to the
harm actually alleged in the Complaint. Id. at 4,
Response  in Opposition contends that personal
jurisdiction over Defendant comports with the Mississippi
long-arm statute and the Due Process Clause, because
Defendant had sufficient minimum contacts with Mississippi,
specifically, the Mississippi Contract and shipment of
Defendant’s products, technical materials, and sales
materials to Mississippi. Mem. in Opp’n  at 5-6.
Plaintiff does not directly respond to the alternative Motion
 to Transfer Venue but does assert that customers and
potential customers of the Mississippi and Alabama Contracts
reside in Mississippi and Alabama. Mem. in Opp’n 
reply, Defendant counters that there is no personal
jurisdiction in Mississippi because the Mississippi Contract
was not “actually performed in whole or in
part in Mississippi.” Reply  at 3 (emphasis in
original). Further, it argues that the Alabama Contract has
no factual connection to Mississippi and the Mississippi
contacts Plaintiff alleges are insufficient to meet the nexus
requirement under the Due Process analysis. Id. at
3-6. Defendant submits that the requirements of both the
Mississippi long-arm statute, Miss. Code Ann. § 13-3-57,
and Due Process are not satisfied, and this Court should not
assume jurisdiction over it.
Personal jurisdiction and Rule 12(b)(2)
a court finds it lacks personal jurisdiction, it may dismiss
the action pursuant to Federal Rule of Civil Procedure
12(b)(2).” Herman v. Cataphora, Inc., 730 F.3d
460, 466 (5th Cir. 2013). “[T]he party seeking to
invoke the power of the court . . . bears the burden of
establishing jurisdiction but is required to present only
prima facie evidence.” Pervasive Software, Inc. v.
Lexware GMBH & Co. KG, 688 F.3d 214, 219 (5th Cir.
2012) (quotation omitted). In determining whether a prima
facie case exists, this Court must accept as true a
plaintiff’s uncontroverted allegations and resolve in
the plaintiff’s favor all conflicts between the
jurisdictional facts contained in the parties’
affidavits and other documentation. See Id . at
219-20 (quotation omitted); Revell v. Lidov, 317
F.3d 467, 469 (5th Cir. 2002) (“In considering a motion
to dismiss for lack of personal jurisdiction, a district
court may consider affidavits, interrogatories, depositions,
oral testimony, or any combination of the recognized methods
of discovery.”) (quotation omitted).
ascertain whether personal jurisdiction exists over a party,
this Court follows a two-step analysis. ITL Int’l,
Inc. v. Constenla, S.A., 669 F.3d 493, 496 (5th Cir.
2012). First, the Court must examine whether Defendant is
amenable to suit under the Mississippi long-arm statute.
Id. at 496-97. Next, it must evaluate whether the
exercise of personal jurisdiction comports with the Due
Process Clause of the Fourteenth Amendment. Id. at
497. If Mississippi law does not support the exercise of
personal jurisdiction, the Court need not reach the Due
Process question. Cycles, Ltd. v. W.J. Digby, Inc.,
889 F.2d 612, 621 (5th Cir. 1989).
The Mississippi long-arm statute
Rule of Civil Procedure 4(k)(1)(A) confers personal
jurisdiction over any defendant who would be subject to
personal jurisdiction under the long-arm statute of the state
in which the district court sits.” ITL Int’l,
Inc., 669 F.3d at 497.
Mississippi long-arm statute provides, in relevant part, as
Any nonresident person, firm, general or limited partnership,
or any foreign or other corporation not qualified under the
Constitution and laws of this state as to doing business
herein, who shall make a contract with a resident of this
state to be performed in whole or in part by any party in
this state, or who shall commit a tort in whole or in part in
this state against a resident or nonresident of this state,
or who shall do any business or perform any character of work
or service in this state, shall by such act or acts be deemed
to be doing business in Mississippi and shall thereby be
subjected to the jurisdiction of the courts of this state.
Code Ann. § 13-3-57. Mississippi courts interpret this
statute as authorizing
“three activities” which will permit Mississippi
courts to exercise personal jurisdiction over a nonresident
defendant: “(1) if that person has entered into a
contract to be performed in Mississippi; (2) has committed a
tort in Mississippi; or, (3) is conducting business in
Dunn v. Yager, 58 So.3d 1171, 1184 (Miss. 2011)
(quoting Yatham v. Young, 912 So.2d 467, 469-70
(Miss. 2005)); see also Miss. Code Ann. §
13-3-57. The three prongs of Mississippi’s long-arm
statute are commonly referred to as “the contract
prong, the tort prong, and the ...