     06-2228-cv
     Ehrenfeld v. Mahfouz

 1
 2                           UNITED STATES COURT OF APPEALS
 3
 4                               FOR THE SECOND CIRCUIT
 5
 6                                 --------------------
 7
 8                                   August Term 2006
 9
10   Argued:         November 8, 2006              Decided:   June 8, 2007
11
12                                 Docket No. 06-2228-cv
13
14   ----------------------------------------------X
15
16   RACHEL EHRENFELD,
17
18
19                          Plaintiff-Appellant,
20
21
22                   - against -
23
24
25   KHALID SALIM BIN MAHFOUZ,
26
27
28                          Defendant-Appellee.
29
30   ----------------------------------------------X
31
32           Before:        FEINBERG, LEVAL, and CABRANES, Circuit Judges.
33
34        Plaintiff-Appellant Rachel Ehrenfeld appeals from a
35   judgment of the United States District Court for the Southern
36   District of New York (Richard C. Casey, J.) granting the motion
37   to dismiss of Defendant-Appellee Khalid Salim Bin Mahfouz on
38   the basis of the lack of personal jurisdiction under N.Y.
39   C.P.L.R. § 302(a)(1) and N.Y. C.P.L.R. § 302(a)(3), denying
40   Ehrenfeld’s request for jurisdictional discovery, and
41   dismissing the case for lack of personal jurisdiction.
42



                                            -1-
 1        Question regarding N.Y. C.P.L.R. § 302(a)(1) certified to
 2   the New York Court of Appeals. Judgment affirmed as to N.Y.
 3   C.P.L.R. § 302(a)(3) and jurisdictional discovery.
 4
 5                  DANIEL J. KORNSTEIN, MARK PLATT, CECELIA CHANG,
 6                       MIKAELA A. MCDERMOTT, Kornstein Veisz
 7                       Wexler & Pollard, LLP, New York, NY, for
 8                       Plaintiff-Appellant.
 9
10                  STEPHEN J. BROGAN, TIMOTHY J. FINN, Jones Day,
11                       Washington, DC, and MICHAEL NUSSBAUM,
12                       Bonner, Kiernan, Trebach & Crociata,
13                       Washington, DC, for Defendant-Appellee.
14
15                  Kurt A. Wimmer, Jason P. Criss, Covington &
16                       Burling LLP, New York, for Amici Curiae
17                       Amazon.com, American Society of Newspaper
18                       Editors, Association of American
19                       Publishers, Inc., Authors Guild, Inc.,
20                       Electronic Frontier Foundation, European
21                       Publishers Council, Forbes Inc., John
22                       Fairfax Holdings, Ltd., Media/Professional
23                       Insurance, Media Institute, Newspaper
24                       Association of America, Online News
25                       Association, Radio-Television News
26                       Directors Association, Reporters Committee
27                       for Freedom of the Press, and World Press
28                       Freedom Committee, in support of Plaintiff-
29                       Appellant.
30
31
32   FEINBERG, Circuit Judge:

33        Plaintiff-Appellant Rachel Ehrenfeld appeals from a

34   judgment of the United States District Court for the Southern

35   District of New York (Richard C. Casey, J.) granting the motion

36   to dismiss of Defendant-Appellee Khalid Salim Bin Mahfouz on

37   the basis of the lack of personal jurisdiction under N.Y.


                                   -2-
 1   C.P.L.R. § 302(a)(1) and N.Y. C.P.L.R. § 302(a)(3), denying

 2   Ehrenfeld’s request for jurisdictional discovery, and

 3   dismissing the case for lack of personal jurisdiction.    For the

 4   reasons hereafter stated, we certify to the New York Court of

 5   Appeals a question inquiring whether § 302(a)(1) of New York’s

 6   long-arm statute confers personal jurisdiction over a person

 7   (1) who sued a New York resident in a non-U.S. jurisdiction;

 8   and (2) whose contacts with New York stemmed from the foreign

 9   lawsuit and whose success in the foreign suit resulted in acts

10   that must be performed by the subject of the suit in New York?

11   We affirm the District Court’s judgment as to N.Y. C.P.L.R. §

12   302(a)(3) and jurisdictional discovery.

13                             I. BACKGROUND

14        Ehrenfeld is the author of Funding Evil: How Terrorism is

15   Financed -- and How to Stop It, which was published by Bonus

16   Books in 2003 in the United States.    Mahfouz is a Saudi Arabian

17   citizen who was formerly the president and chief executive

18   officer of The National Commercial Bank of Saudia Arabia.    In

19   Funding Evil, Ehrenfeld alleges that Mahfouz, among others,

20   financially supported terrorism.     Mahfouz sued Ehrenfeld in

21   England for libel on the basis of these allegations.    Ehrenfeld

22   alleges that Mahfouz chose that venue because of its more

23   favorable libel laws.   Ehrenfeld did not appear in the English


                                    -3-
 1   case and the English court issued a default judgment against

 2   her stating, in most relevant part, that Ehrenfeld must refrain

 3   from “publishing, or causing or authori[z]ing the further

 4   publication” of the disputed statements about Mahfouz in

 5   Funding Evil within the English court’s jurisdiction.

 6        Basing federal jurisdiction on diversity, 28 U.S.C. §

 7   1332, Ehrenfeld seeks a declaration under the Declaratory

 8   Judgment Act, 28 U.S.C. § 2201, that (1) Mahfouz could not

 9   prevail on a libel claim against Ehrenfeld under the laws of

10   New York and the United States; and (2) the judgment in the

11   English case is not enforceable in the United States on

12   constitutional and public policy grounds.

13         Mahfouz moved to dismiss Ehrenfeld’s suit for lack of

14   subject-matter jurisdiction and personal jurisdiction under,

15   respectively, Rules 12(b)(1) and 12(b)(2) of the Federal Rules

16   of Civil Procedure.    The district court dismissed the case for

17   lack of personal jurisdiction and declined to address whether

18   subject matter jurisdiction existed.

19                             II.   DISCUSSION

20        A.   Preliminary Issues

21        Before discussing the issue of personal jurisdiction under

22   N.Y. C.P.L.R. § 302(a)(1) and § 302(a)(3), we address two

23   preliminary matters.


                                      -4-
 1                                1.   Ripeness

 2            We first address Mahfouz’s argument that subject matter

 3    jurisdiction is lacking because the case is not “ripe.”    “The

 4    ripeness doctrine is drawn both from Article III limitations on

 5    judicial power and from prudential reasons for refusing to

 6    exercise jurisdiction.”     Nat’l Park Hospitality Ass’n v. DOI,

 7    538 U.S. 803, 808 (2003) (internal quotation marks omitted);

 8    see also Simmonds v. I.N.S., 326 F.3d 351, 356-7 (2d Cir. 2003)

 9    (“‘Ripeness’ is a term that has been used to describe two

10    overlapping threshold criteria for the exercise of a federal

11    court’s jurisdiction.”).1

12            Article III ripeness “prevents courts from declaring the

13    meaning of the law in a vacuum and from constructing

14    generalized legal rules unless the resolution of an actual

15    dispute requires it.”    Simmonds, 326 F.3d at 357.   This case

16    presents a “concrete dispute affecting cognizable current

17    concerns of the parties within the meaning of Article III,”

18    id., and is therefore ripe within the constitutional sense.




          1
             Neither party has distinguished between constitutional
     and prudential ripeness, but it appears that their arguments
     primarily go to the court’s prudential power to dismiss the case.


                                       -5-
 1           A case held not to be prudentially ripe reflects a court’s

 2    judgment that the case would “be better decided later” and that

 3    the parties’ “constitutional rights [would not be] undermined

 4    by the delay.”    Id. (emphasis omitted).   Two factors inform our

 5    analysis of prudential ripeness: 1) “the fitness of the issues

 6    for judicial decision”; and 2) “the hardship to the parties of

 7    withholding court consideration.”     Abbott Labs. v. Gardner, 387

 8    U.S. 136, 149 (1967).

 9           In Yahoo! v. La Ligue Contre Le Racisme, 433 F.3d 1199

10    (9th Cir. 2006) (en banc), a case involving facts similar to

11    those here, a group of three judges of the 11-judge en banc

12    court stated that the case should be dismissed for lack of

13    prudential ripeness.2   These judges reasoned, in part, that the

14    question was not yet fit for judicial decision because the

15    foreign orders were interim orders that could be modified

16    before any attempt to enforce the orders in the United States.

17    Id. at 1215.    It was therefore unclear whether enforcement of

18    the foreign court’s final order would be repugnant to

19    California’s public policy.


         2
             When these three judges were combined in Yahoo! with
     three other judges who voted to dismiss the case for lack of
     personal jurisdiction, there was a majority of six votes of the
     en banc court to dismiss the case. See Yahoo!, 433 F.3d at 1201.


                                      -6-
 1        Moreover, Yahoo! had voluntarily changed its policy to

 2   comply at least partially with the interim order, so it was

 3   unclear whether the foreign court would hold that Yahoo! was,

 4   as a result, in compliance with the foreign court’s orders.

 5   Id. at 1215, 1223.   The same three judges stated:

 6             The possible -- but at this point highly
 7             speculative -- impact of further compliance
 8             with the [foreign] court’s orders on access
 9             by American users would be highly relevant
10             to the question whether enforcement of the
11             orders would be repugnant to California
12             public policy. But we cannot get to that
13             question without knowing whether the
14             [foreign] court would find that Yahoo! has
15             already complied “in large measure,” for
16             only on a finding of current noncompliance
17             would the issue of further compliance, and
18             possible impact on American users, arise.
19

20   Id. at 1217.   Thus, these three judges concluded that they were

21   “uncertain about whether, or in what form, a First Amendment

22   question might be presented to [them],” id. at 1217, that the

23   suit came “perilously close to a request for a forbidden

24   advisory opinion,” id. at 1223, and that “[i]n its current

25   form, this case presents the sort of ‘[p]roblems of prematurity

26   and abstractness’ that counsel against reaching the First

27   Amendment question that Yahoo! insists is presented by this




                                    -7-
 1   case,” id. at 1211 (quoting Socialist Labor Party v. Gilligan,

 2   406 U.S. 583, 588 (1972)).

 3        In contrast, in the case before us the English judgment is

 4   a final order requiring Ehrenfeld to refrain from “publishing,

 5   or causing or authori[z]ing the further publication” of the

 6   disputed statements about Mahfouz in Funding Evil within the

 7   English court’s jurisdiction.   There has been no suggestion

 8   that the order will be changed or that Ehrenfeld has instituted

 9   a policy under which she will be in compliance with the order.

10   In other words, this case presents a clear and concrete issue

11   for resolution by a court and does not present any of the

12   problems of prematurity that characterized the Yahoo! case.     We

13   therefore decline to dismiss the case for lack of prudential

14   ripeness.

15                    2. Constitutional Due Process

16        The second preliminary matter concerns whether personal

17   jurisdiction in this case satisfies constitutional due process.

18   We note that even if the New York Court of Appeals concludes

19   that personal jurisdiction is proper under § 302(a)(1) of the

20   New York long-arm statute, this Court must make the ultimate

21   determination whether this jurisdiction satisfies

22   constitutional due process.   See Metropolitan Life Ins. Co. v.

                                     -8-
 1   Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996) (“[I]n

 2   resolving questions of personal jurisdiction in a diversity

 3   action, a district court must conduct a two-part inquiry.

 4   First, it must determine whether the plaintiff has shown that

 5   the defendant is amenable to service of process under the forum

 6   state’s laws; and second, it must assess whether the court’s

 7   assertion of jurisdiction under these laws comports with the

 8   requirements of due process.”). We decline to address this

 9   issue now because “the state statute is susceptible of an

10   interpretation that would eliminate the constitutional issue

11   and terminate the litigation.”    Allstate Ins. Co. v. Serio, 261

12   F.3d 143, 151 (2d Cir. 2001) (internal quotation marks

13   omitted); see also id. at 151-2 (thoroughly discussing the

14   importance of the policy, also emphasized by the Supreme Court,

15   that federal courts avoid constitutional issues whenever

16   possible); but see Petroleum Helicopters, Inc. v. Avco Corp.,

17   804 F.2d 1367, 1369 (5th Cir. 1986) (deciding constitutional

18   due process issue prior to certifying a question similar to the

19   one presented in this case).

20        B.     Standard of Review

21        This court reviews questions of statutory interpretation

22   de novo.    United States v. Pettus, 303 F.3d 480, 483 (2d Cir.

23   2002).    But “it is well-established that the controlling


                                      -9-
 1   interpretation of state laws should normally be given by state

 2   rather than federal courts.”        Yoon v. Fordham Univ. Faculty &

 3   Admin. Ret. Plan, 263 F.3d 196, 203 (2d Cir. 2001).

 4          C.   Personal Jurisdiction Under New York’s Long-Arm

 5               Statute

 6                         1.    N.Y. C.P.L.R. § 302(a)(1)

 7                          a.   Certification Generally

 8          Certification is appropriate “[w]henever it appears . . .

 9   that determinative questions of New York law are involved in a

10   case pending before [it] for which no controlling precedent of

11   the [New York] Court of Appeals exists.”        N.Y. Comp. Codes R. &

12   Regs. tit. 22, § 500.27(a) (2006)3.        However, questions are not

13   to be routinely certified “simply because a certification

14   procedure is available.”        Kidney by Kidney v. Kolmar Labs.,

15   Inc., 808 F.2d 955, 957 (2d Cir. 1987).        Factors justifying

16   certification include “the absence of authoritative state court


        3
            This statute reads, in relevant part:
              Section 500.27 Discretionary proceedings to
              review certified questions from Federal
              courts and other courts of last resort.
              (a) Whenever it appears to the Supreme Court
              of the United States, any United States Court
              of Appeals, or a court of last resort of any
              other state that determinative questions of
              New York law are involved in a case pending
              before that court for which no controlling
              precedent of the Court of Appeals exists, the
              court may certify the dispositive questions
              of law to the Court of Appeals.


                                         -10-
 1   interpretations of the state statute, the importance of the

 2   issue to the state and the likelihood that the question will

 3   recur, and the capacity of certification to resolve the

 4   litigation.”   Green v. Montgomery, 219 F.3d 52, 60 (2d Cir.

 5   2000); see also Krohn v. New York City Police Dep’t, 341 F.3d

 6   177, 180 (2d Cir. 2003).    The Court may also consider whether

 7   the question implicates issues of state public policy.    See

 8   Krohn, 341 F.3d at 180.

 9                        b.    New York State Law

10        This case presents a question regarding the scope of New

11   York C.P.L.R. § 302(a)(1) -- a provision of New York’s long-arm

12   statute -- that we have not previously addressed and about

13   which New York State court decisions do not yield a clear

14   answer.   Section 302(a)(1) confers jurisdiction over a non-

15   domiciliary who “in person or through an agent ... transacts

16   any business within the state” if the cause of action arises

17   out of the defendant’s New York transactions.    A non-

18   domiciliary “transacts business” in New York “by purposefully

19   avail[ing] [him or herself] of the privilege of conducting

20   activities within the ... State, thus invoking the benefits and

21   protections of its laws.”    McKee Elec. Co. v. Rauland-Borg

22   Corp., 20 N.Y.2d 377, 382 (1967) (quoting Hanson v. Denckla,

23   357 U.S. 235, 253 (1958)) (internal quotation marks omitted);


                                     -11-
 1   see also CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d

 2   Cir. 1986).

 3         Courts interpreting N.Y. C.P.L.R. § 302(a)(1) have held

 4   that non-commercial activity may qualify as the “transaction of

 5   business.”    See Padilla v. Rumsfeld, 352 F.3d 695, 709 & n.19

 6   (2d Cir. 2003), rev’d on other grounds, 542 U.S. 426 (2004).

 7   In addition, a single transaction in New York may suffice to

 8   invoke personal jurisdiction “even though the defendant never

 9   enter[ed] New York, so long as the defendant’s activities here

10   were purposeful and there is a substantial relationship between

11   the transaction and the claim asserted.”   PDK Labs, Inc. v.

12   Friedlander, 103 F.3d 1105, 1109 (2d Cir. 1997) (alteration in

13   original) (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d

14   460, 467 (1988) (internal quotation marks omitted)).

15         On the other hand, a single “cease and desist” letter sent

16   to a New York resident in an attempt to settle legal claims

17   will not be sufficient to invoke personal jurisdiction.   See

18   id.    A cease-and-desist letter and subsequent communications

19   used to secure further New York investments (and not merely to

20   settle legal claims), by contrast, was held to be sufficient to

21   find personal jurisdiction under the “transacts business”

22   standard.    See id.

                                    -12-
 1        Ehrenfeld alleges that Mahfouz’s contacts with New York

 2   were: 1) the service on Ehrenfeld of a letter stating Mahfouz’s

 3   claims in English court (essentially a cease and desist

 4   letter); 2) receipt by Ehrenfeld on at least six occasions of

 5   letters and e-mails relating to the English case; 3) personal

 6   service on Ehrenfeld by Mahfouz’s representatives on four

 7   occasions of papers pertaining to the English case; and 4)

 8   receipt by Ehrenfeld by e-mail and letter of the English

 9   Court’s order.    Ehrenfeld argues that Mahfouz had an additional

10   contact with New York: she says that he implemented a scheme

11   (which consisted of securing the English judgment and related

12   actions), all designed to chill her research and writing in New

13   York.   Mahfouz also operates a website that can be accessed in

14   New York.   New York courts have not addressed whether personal

15   jurisdiction should attach when the contacts with New York are

16   of this nature.

17

18

19               c.    The Appropriateness of Certification

20        As discussed above, this case turns on an “unsettled”

21   question of state law for which there is “no direct precedent.”

22   See Alexander & Alexander Serve., Inc. v. Lloyd’s Syndicate

23   317, 902 F.2d 165, 169 (2d Cir. 1990); see also Westchester v.

24   Comm’r of Transp. of Conn., 986 F.2d 624, 627 (2d Cir. 1993)


                                     -13-
 1    (certifying “questions of first impression under Connecticut

 2    law” for which “[t]here appear to be no controlling precedents

 3    in Connecticut”); Israel v. State Farm Mut. Auto. Ins. Co., 239

 4    F.3d 127, 136 (2d Cir. 2000) (certifying a case in which the

 5    Court found “no Conecticut precedent directly addressing the

 6    questions presented”).

 7            Mahfouz argues that certification is nevertheless improper

 8    because the case involves only a question of the application of

 9    settled law to new facts; so, he says, no unsettled question of

10    state law is at stake.4    However, in Alexander & Alexander, we

11    stated that a question of first impression under the long-arm

12    statute “should be decided by the New York court because it

13    directly involves the application of an important public policy

14    of the State of New York, since that state has a strong

15    interest in deciding the jurisdictional reach of its courts.”

16    902 F.2d at 168-69.    This statement, which Mahfouz does not

17    address, undermines his contention that a case involving the

18    application of the long-arm statute, which he deems settled

19    state law, to new facts may not be certified.    As in Alexander

20    & Alexander, we certify “rather than having the only precedent

21    on point be that of a federal court, which may be mistaken.”

22    Id. at 169.


          4
            Ehrenfeld argues that if we are unsure whether New York’s
     long-arm statute applies to Mahfouz’s alleged conduct, we should
     certify to the New York Court of Appeals.

                                      -14-
 1          Furthermore, the question certified is significant,

 2   implicates important public policy for the State of New York,

 3   and is likely to be repeated.    See Local Rule of the Second

 4   Circuit § 0.275.   The question is important to authors,

 5   publishers and those, like Mahfouz, who are the subject of

 6   books and articles.    Thus, the question is “significant,”

 7   within the meaning of Local Rule § 0.27.    The issue may

 8   implicate the First Amendment rights of many New Yorkers, and

 9   thus concerns important public policy of the State.    Because

10   the case may lead to personal jurisdiction over many defendants

11   who successfully pursue a suit abroad against a New York

12   citizen, the question before us is also likely to be repeated.

13   Cf. Alexander & Alexander, 902 F.2d at 169. (“[I]t is arguable

14   ... that the New York courts will become a forum for suits

        5
            The Rule reads, in full:
               Certification of Questions of State Law

               Where authorized by state law, this Court may
               certify to the highest court of a state an
               unsettled and significant question of state
               law that will control the outcome of a case
               pending before this Court. Such
               certification may be made by this Court sua
               sponte or on motion of a party filed with the
               clerk of this Court. Certification will be
               in accordance with the procedures provided by
               the state’s legislature or highest state
               court rules, e.g., Conn. Public Act No. 85-
               111; New York Court of Appeals Rule 500.7.
               Certification may stay the proceedings in
               this Court pending the state court’s decision
               whether to accept the certification and its
               decision of the certified question.

                                     -15-
1    against any unauthorized alien or foreign insurer who benefits

2    from the existence of a trust fund in a bank located in New

3    York....”).

4            For the reasons detailed above, we believe that the New

5    York Court of Appeals can best resolve the issue of personal

6    jurisdiction under N.Y. C.P.L.R. § 302(a)(1) that we are

7    certifying.6


         6
            Ehrenfeld also argues that the District Court improperly
    denied her jurisdictional discovery that might have revealed
    facts sufficient to sustain personal jurisdiction under N.Y.
    C.P.L.R. § 302(a)(1). A District Court’s denial of
    jurisdictional discovery is reviewed for abuse of discretion.
    See Lehigh Valley Indus., Inc. v. Birenbaum, 527 F.2d 87, 93 (2d
    Cir. 1975). Ehrenfeld contends that the District Court committed
    an error of law by requiring her to make a prima facie showing of
    jurisdiction before allowing discovery. Citing to Jazini v.
    Nissan Motor Corp., 148 F.3d 181 (2d Cir. 1998), the District
    Court stated that the “Second Circuit has disallowed
    jurisdictional discovery where a plaintiff has failed to
    establish a prima facie case and where there is a foreign
    defendant because such logic would require all foreign defendants
    to submit to discovery on this issue. Ehrenfeld’s request for
    additional jurisdictional discovery is therefore denied.” The
    District Court’s use of the term “disallowed” is arguably a
    mischaracterization of Jazini, which held that a district court
    did not err when it denied jurisdictional discovery to a
    plaintiff suing a foreign corporation. See id. at 186. If the
    District Court understood Jazini as forbidding jurisdictional
    discovery any time a plaintiff does not make a prima facie
    showing of jurisdiction, this would indeed be legal error. See
    In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d
    Cir. 2003) (requiring only “legally sufficient allegations of
    jurisdiction” to survive a pre-discovery motion to dismiss).
    However, we think the District Court’s comment on Jazini should
    be read as a justification of its exercise of discretion to deny
    jurisdictional discovery, not as a clear limit on its authority
    to exercise its discretion. Elsewhere, for example, the District
    Court stated that it “finds that there exists no need for
    additional jurisdictional discovery” -- a comment that does not
    imply any bright-line cabining of its discretion.

                                     -16-
 1                     2.   N.Y. C.P.L.R. § 302(a)(3)

 2        Alternatively, plaintiff argues that N.Y. C.P.L.R. §

 3   302(a)(3) provides an independent basis for personal

 4   jurisdiction under New York’s long-arm statute.      Plaintiff

 5   contends that she does not have to describe the elements of a

 6   tort in order to state a cause of action arising under a

 7   “tortious act” as required by N.Y. C.P.L.R. § 302(a)(3).

 8   Rather, she argues, defendant’s wrongful “scheme” to chill her

 9   First Amendment rights satisfies the statute.      She relies

10   principally on the case of Garbellotto v. Montelindo Compagnie

11   Navegacion, 294 F.Supp. 487 (S.D.N.Y. 1969), which held that

12   personal jurisdiction existed under § 302(a)(3) where there was

13   a cause of action for breach of warranty, see id. at 488-89.

14   Yet even in that case, the Court noted that “[a] breach of

15   warranty ... is not only a violation of the sales contract ...

16   but is a tortious wrong....”   Id. at 488 n.4.     Plaintiff’s

17   argument, then, is that as long as a plaintiff describes an act

18   as somehow wrongful and not exclusively for breach of contract,

19   it can be considered “tortious.”      There is, however, no

20   limiting principle to this argument.      Any time a plaintiff

21   considered himself wronged for whatever reason, even if no

22   legally cognizable right of action existed, personal

23   jurisdiction would exist over the defendant in a declaratory

24   judgment suit.   We do not believe certification is appropriate

                                    -17-
 1   here, because we have seen no New York case law that ascribes

 2   such a broad meaning to “tortious act.”     See, e.g., Sung Hwan

 3   Co. v. Rite Aid Corp., 7 N.Y.3d 78, 84-85 (2006) (holding that

 4   an act considered tortious under Korean law was covered by §

 5   302(a)(3), even though it provided for a remedy not available

 6   under New York law).   We recognize the possibility that the

 7   claim brought in New York need not be a tort under New York law

 8   to justify invocation of § 302(a)(3) to confer jurisdiction.

 9   Id.   Nonetheless, there must be some basis for considering the

10   defendant’s actions to be tortious, either under the law of New

11   York or some other pertinent jurisdiction.    In this case,

12   plaintiff has shown no basis for considering defendant’s

13   actions to be tortious.   Therefore, the District Court properly

14   found that it could not exercise personal jurisdiction over

15   defendant under § 302(a)(3).

16

17

18                             III. Conclusion

19         For the reasons stated above, we affirm the District

20   Court’s opinion as to N.Y. C.P.L.R. § 302(a)(3) and

21   jurisdictional discovery.

22         Because of the absence of authoritative state court

23   precedent regarding the jurisdictional question raised under


                                    -18-
 1   N.Y. C.P.L.R. § 302(a)(1), the fact that the answer may resolve

 2   this litigation, and, most of all, the importance of the

 3   question, its policy implications for the State and the

 4   likelihood that the question will recur, we hereby respectfully

 5   certify the following question to the New York Court of

 6   Appeals: Does § 302(a)(1) of New York’s long-arm statute confer

 7   personal jurisdiction over the defendant?

 8        The certified question may be deemed expanded to cover any

 9   further pertinent question of New York law involved in this

10   appeal that the Court of Appeals chooses to answer.   This panel

11   retains jurisdiction and will consider any issues that may

12   remain on appeal once the New York Court of Appeals has either

13   provided us with its guidance, or declined certification.

14        It is therefore ordered that the Clerk of this Court

15   transmit to the Clerk of the Court of Appeals of the State of

16   New York a Certificate, as set forth below, together with a

17   complete set of briefs, appendices, and record filed by the

18   parties with this court.   The parties are further ordered to

19   bear equally such fees and costs, if any, as may be required by

20   the New York Court of Appeals.

21                              Certificate




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1        The foregoing is hereby certified to the Court of Appeals

2   of the State of New York, pursuant to 2d Cir. R. § 0.27 and

3   N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27, as ordered by

4   the United States Court of Appeals for the Second Circuit.




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