         13-3736
         Ash v. Richards

                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
     is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
     a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
     database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
     represented by counsel.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       14th day of July, two thousand fourteen.
 4
 5       PRESENT:
 6
 7               BARRINGTON D. PARKER,
 8               DEBRA ANN LIVINGSTON,
 9               CHRISTOPHER F. DRONEY,
10
11                               Circuit Judges.
12       _______________________________________________
13
14       ALLAN A. ASH,
15
16                                         Plaintiff-Appellant,

17                         -v.-                                                       No. 13-3736-cv
18
19       GEOFFREY A. RICHARDS,

20                               Defendant-Appellee.
21       _______________________________________________

22                                                  JUDD BURSTEIN, Judd Burstein, P.C., New York, NY, for
23                                                  Plaintiff-Appellant.
24
25                                                  STEVEN SCHINDLER (Emily Alexandra Poler, Esq., on the
26                                                  brief), Schindler Cohen & Hochman LLP, New York, NY, for
27                                                  Defendant-Appellee.



                                                                1
 1           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 2   that the September 12, 2013, judgment and order of the District Court is VACATED and the case

 3   is REMANDED.

 4           Plaintiff-Appellant, Allan A. Ash (“Ash”) appeals from a September 12, 2013, judgment and

 5   order of the United States District Court for the Southern District of New York (Crotty, J.) granting

 6   Defendant-Appellee Geoffrey A. Richards’s (“Richards”) motion to dismiss for lack of personal

 7   jurisdiction. We assume the parties’ familiarity with the underlying facts and procedural history of

 8   the case, and with the issues on appeal.

 9           “We review a district court’s dismissal of an action for want of personal jurisdiction de novo,

10   construing all pleadings and affidavits in the light most favorable to the plaintiff and resolving all

11   doubts in the plaintiff’s favor.” Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir.

12   2010). Here, the district court did not hold an evidentiary hearing, but rather made its determination

13   on the basis of the pleadings and affidavits. In such a case, “[i]n order to survive a motion to dismiss

14   for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction

15   exists.” Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006) (italics added); see also Cutco Indus.

16   Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir. 1986) (“If the court chooses to rely on pleadings

17   and affidavits,” as here, “the plaintiff need only make a prima facie showing of personal jurisdiction

18   over [the] defendant. But if the court holds an evidentiary hearing . . . the plaintiff must demonstrate

19   personal jurisdiction by a preponderance of the evidence.” (citation omitted)). This showing entails

20   making “legally sufficient allegations of jurisdiction,” including “an averment of facts that, if

21   credited[,] would suffice to establish jurisdiction over the defendant.” In re Magnetic Audiotape

22   Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003) (per curiam) (internal quotation marks omitted).


                                                        2
 1   Because this is a diversity action, we resolve the question of personal jurisdiction with reference to

 2   New York law, the forum in which the district court sits. See Whitaker v. Am. Telecasting, Inc., 261

 3   F.3d 196, 208 (2d Cir. 2001).1


 4           Ash argues that the district court erred in concluding that it could not exercise personal

 5   jurisdiction over Richards pursuant to N.Y. C.P.L.R. § 302(a)(2), which provides for jurisdiction

 6   over any non-domiciliary where he “commits a tortious act within the state.” Here, Ash alleged that

 7   Richards committed the tort of conversion when he refused to return Ash’s money on demand.


 8           New York courts have explained that “[a] cause of action for conversion accrues when the

 9   conversion takes place. If possession of the property is originally lawful, a conversion occurs when

10   the defendant refuses to return the property after a demand or sooner disposes of the property.”

11   White v. City of Mt. Vernon, 633 N.Y.S.2d 369, 370 (App. Div. 2d Dep’t 1995) ( citation omitted);

12   see also Salatino v. Salatino, 881 N.Y.S.2d 721, 723 (App. Div. 3d Dep’t 2009) (“[W]here

13   possession of property is initially lawful, conversion occurs when there is a refusal to return the

14   property upon demand.”). While Ash alleged that he demanded that Richards return his property

15   over the telephone, while Richards was in Chicago, Ash’s complaint and supporting affidavit

16   maintain that Richards initially refused to return Ash’s property while Richards was in New York.

17   In the absence of an evidentiary hearing, we construe “all pleadings and affidavits in the light most

18   favorable to the plaintiff and resolving all doubts in the plaintiff’s favor.” Penguin Grp. (USA) Inc.,




             1
               The parties agree that there is no basis for general jurisdiction, and that if jurisdiction exists
     it is premised on New York’s long arm statute, N.Y. C.P.L.R. § 302(a)(1), (2), and (3).

                                                          3
1   609 F.3d at 34. We find, therefore, that Ash has met his burden of making a prima facie showing

2   of jurisdiction.2 Accordingly, we vacate the district court’s September 12, 2013, judgment.

3          We have reviewed Ash’s remaining arguments and find them to be without merit. For the

4   foregoing reasons, the September 12, 2013, judgment of the District Court is VACATED and the

5   case is REMANDED.

6                                                        FOR THE COURT:

7                                                        Catherine O’Hagan Wolfe, Clerk

8




           2
              The district court determined that N.Y. C.P.L.R. §§ 302(a)(1) and (3) do not provide for
    jurisdiction in this case. Because it is unnecessary to our determination to vacate, we need not and
    do not discuss these alternative bases for jurisdiction further.

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