Best Van Lines, Inc. v. Walker

04-3924
Best Van Lines, Inc. v. Walker
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2005 3
(Argued: April 27, 2006 Decided: June 26, 2007) 4
Docket No. 04-3924-cv 5
------------------------------------- 6
BEST VAN LINES, INC., 7
Plaintiff-Appellant, 8
- v - 9
TIM WALKER, 10
Defendant-Appellee. 11
------------------------------------- 12
Before: KEARSE, McLAUGHLIN, and SACK, Circuit Judges. 13
Appeal from a judgment of the United States District 14
Court for the Southern District of New York (Gerard E. Lynch, 15
Judge). The plaintiff brought suit against the defendant, an 16
Iowa resident, for defamation based on comments he posted on his 17
website. The district court granted the defendant's motion to 18
dismiss the complaint pursuant to Federal Rule of Civil Procedure 19
12(b)(2) for lack of personal jurisdiction under N.Y. C.P.L.R. 20
§ 302(a), New York's "long-arm" jurisdiction statute. 21
Affirmed. 22
Tim Walker, Waverly, IA, Defendant- 23
Appellee, pro se. 24
Thomas Freedman (Terrence A. Oved, 25
Darren Oved, Eric S. Crusius, on the 26

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1 Because the defendant-appellee was not represented by
counsel and the appeal raises difficult issues, we requested pro
bono counsel to appear for him as amicus curiae. The Court is
grateful for counsel's participation.
2
brief), Oved & Oved, New York, NY, for 1
Plaintiff-Appellant. 2
Slade R. Metcalf (Katherine M. Bolger, 3
on the brief), Hogan & Hartson, LLP, New 4
York, NY, amicus curiae in support of 5
Defendant-Appellee.1
6
SACK, Circuit Judge: 7
The defendant, Tim Walker, a resident of Waverly, Iowa, 8
is the proprietor of a not-for-profit internet website that 9
provides information and opinions about household movers. In 10
August 2003, Walker posted derogatory comments about the 11
plaintiff, Best Van Lines, Inc. ("BVL"), a New York-based moving 12
company. Walker asserted, at two different locations on his 13
website, that BVL was performing household moves without legal 14
authorization and without insurance that is required by law. 15
Less than a month later, BVL brought suit against Walker in the 16
United States District Court for the Southern District of New 17
York alleging that the statements about it on the website were 18
false, defamatory, and made with an intent to harm BVL. Compl. 19
¶¶ 21-30. BVL sought injunctive and monetary relief. 20
On May 4, 2004, the district court (Gerard E. Lynch, 21
Judge) granted Walker's motion to dismiss pursuant to Federal 22
Rule of Civil Procedure 12(b)(2) on the ground that N.Y. C.P.L.R. 23
§ 302(a), the New York State "long-arm" statute, did not give the 24
court personal jurisdiction over Walker. Best Van Lines, Inc. v. 25

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2 In response to the query, Walker wrote, "If you are
talking about Best Van Lines of Brooklyn, NY, then DO NOT USE
3
Walker, 03 Civ. 6585, 2004 WL 964009, at *1, 2004 U.S. Dist. 1
LEXIS 7830, at *1 (S.D.N.Y. May 4, 2004). Having concluded that 2
it lacked jurisdiction under the statute, the court found it 3
unnecessary to consider whether asserting jurisdiction over 4
Walker would violate his constitutional right to due process. 5
Id. at *7, 2004 U.S. Dist. LEXIS 7830, at *24. Because BVL had 6
not demonstrated a prima facie case supporting jurisdiction, the 7
court also denied jurisdictional discovery. 8
We affirm. 9
BACKGROUND 10
The defendant, Tim Walker, is the proprietor of a 11
website, "MovingScam.com" (the "Website"). He operates it from 12
his home in Waverly, Iowa. As its name suggests, the Website 13
provides consumer-related comments, most of them derogatory, 14
about household movers in the United States. On or about August 15
5, 2003, Walker posted statements about BVL in the section of the 16
Website called "The Black List Report." Under the heading 17
"Editor's Comments," Walker wrote that "as of 8/5/2003 [BVL] was 18
performing interstate moving services without legal authority 19
from the Federal Motor Carrier Safety Administration, and did not 20
carry Cargo insurance as required by law." Compl. ¶ 8. Walker 21
made similar factual assertions in response to a question about 22
BVL that was posted on the message-board section of the Website 23
by a person whose whereabouts are not disclosed in the record.2
24

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THEM! They have only had their DOT license since February, 2003
and have NO interstate authority whatsoever with the Federal
Motor Carrier Safety Administrator. They also have not provided
the FMCSA with proof of any Cargo Insurance, and they have a
vehicle Out of Service record of 40% and a driver Out of Service
record of 100% (national averages are 22.9% and 7.21%,
respectively)." Compl. ¶ 11.
4
On August 26, 2003, BVL instituted this lawsuit against 1
Walker by filing a complaint in the United States District Court 2
for the Southern District of New York. In it, BVL alleges that 3
the statements about it on the Website were false, defamatory, 4
and made with an intention to harm it. Compl. ¶¶ 21-30. We 5
assume at this stage of the proceedings that BVL's allegations 6
are correct and can be proved. BVL seeks to have Walker enjoined 7
from publishing further defamatory statements about BVL. It also 8
seeks compensatory and punitive damages totaling $1.5 million. 9
Walker moved to transfer the action to the United 10
States District Court for the Southern District of Iowa. BVL 11
opposed the motion, but also treated it as a motion to dismiss 12
for lack of personal jurisdiction pursuant to Rule 12(b)(2) of 13
the Federal Rules of Civil Procedure. Best Van Lines, 2004 WL 14
964009, at *1, 2004 U.S. Dist. LEXIS 7830, at *3. In his reply, 15
Walker, representing himself, argued that N.Y. C.P.L.R. 16
§ 302(a) -- New York's long-arm statute -- did not give New York 17
courts jurisdiction over him for purposes of this lawsuit. Id. 18
The district court granted what was construed to be 19
Walker's motion to dismiss. The court concluded that BVL had 20
failed to allege facts sufficient to show that Walker had 21

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5
transacted business for purposes of section 302(a)(1), or that 1
its suit arose from any such transaction. Id. at *7, 2004 U.S. 2
Dist. LEXIS 7830, at *24. The court found it unnecessary to 3
address whether asserting jurisdiction over Walker would be 4
consistent with the Fourteenth Amendment's Due Process guarantee. 5
Id. It also denied permission to take jurisdictional discovery. 6
Id., 2004 U.S. Dist. LEXIS 7830, at *24-25. 7
BVL appeals. 8
DISCUSSION 9
I. Standard of Review 10
We review a district court's dismissal of an action for 11
lack of personal jurisdiction de novo. Sole Resort, S.A. de C.V. 12
v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 102 (2d Cir. 2006). 13
"In order to survive a motion to dismiss for lack of personal 14
jurisdiction, a plaintiff must make a prima facie showing that 15
jurisdiction exists." Thomas v. Ashcroft, 470 F.3d 491, 495 (2d 16
Cir. 2006). 17
II. Personal Jurisdiction in New York 18
A. The Issue on Appeal 19
This appeal raises a single question: whether the 20
United States District Court for the Southern District of New 21
York had personal jurisdiction over Walker for purposes of 22
entertaining this lawsuit. To answer that question, we look 23
first to the law of the State of New York, in which the district 24
court sits. Kronisch v. United States, 150 F.3d 112, 130 (2d 25
Cir. 1998). If, but only if, our answer is in the affirmative, 26

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3Because we think that we can determine this issue based on
well-settled principles of New York law, we have decided not to
certify it to the New York Court of Appeals. See Sole Resort,
S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 100, 104 (2d
Cir. 2006) (deciding a question of how to interpret section
302(a)(1) that was "novel . . ., both in this court and in the
New York courts").
6
we must then determine whether asserting jurisdiction under that 1
provision would be compatible with requirements of due process 2
established under the Fourteenth Amendment to the United States 3
Constitution. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 4
315 (1945). 5
Agreeing with the district court, we conclude that 6
while New York appellate courts have not decided this precise 7
issue, under well-settled principles of New York law, the 8
district court did not have such jurisdiction. We therefore need 9
not address the second question: whether, if New York law 10
conferred it, asserting such jurisdiction would be permissible 11
under the Due Process Clause of the Fourteenth Amendment to the 12
United States Constitution.3 Still, because the analysis of the 13
state statutory and federal constitutional limitations have 14
become somewhat entangled in New York jurisprudence, we think it 15
advisable to explore the relationship between the two in some 16
detail. 17
B. Constitutional Limits on Personal Jurisdiction 18
In 1945, the Supreme Court held that states' power to 19
exercise personal jurisdiction over defendants consistent with 20
the federal Constitution was not contingent on those defendants' 21

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4
Applying this principle, the Court has held that the
Due Process Clause forbids the exercise of personal
jurisdiction over an out-of-state automobile
distributor whose only tie to the forum resulted from a
customer's decision to drive there, World-Wide
Volkswagen Corp. v. Woodson[, 444 U.S. 286 (1980)];
over a divorced husband sued for child-support payments
7
physical presence within the states' borders. Int'l Shoe, 326 1
U.S. at 316. Instead, in order to exercise personal jurisdiction 2
over out-of-state defendants, the Due Process Clause of the 3
Fourteenth Amendment requires only that the defendants have 4
"certain minimum contacts with [the forum state] such that the 5
maintenance of the suit does not offend 'traditional notions of 6
fair play and substantial justice.'" Id. (citation omitted). 7
A court deciding whether it has jurisdiction over an 8
out-of-state defendant under the Due Process Clause must evaluate 9
the "quality and nature," Burger King Corp. v. Rudzewicz, 471 10
U.S. 462, 475 (1985), of the defendant's contacts with the forum 11
state under a totality of the circumstances test, id. at 485-86. 12
The crucial question is whether the defendant has "purposefully 13
avail[ed] itself of the privilege of conducting activities within 14
the forum State, thus invoking the benefits and protections of 15
its laws," id. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 16
253 (1958)) (internal quotation marks omitted), "such that [the 17
defendant] should reasonably anticipate being haled into court 18
there," id. at 474 (quoting World-Wide Volkswagen Corp. v. 19
Woodson, 444 U.S. 286, 297 (1980)) (internal quotation marks 20
omitted).4
21

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whose only affiliation with the forum was created by
his former spouse's decision to settle there, Kulko v.
California Superior Court, 436 U.S. 84 (1978); and over
a trustee whose only connection with the forum resulted
from the settlor's decision to exercise her power of
appointment there, Hanson v. Denckla, 357 U.S. 235
(1958). In such instances, the defendant has had no
"clear notice that it is subject to suit" in the forum
and thus no opportunity to "alleviate the risk of
burdensome litigation" there. World-Wide Volkswagen
Corp. v. Woodson, [444 U.S.] at 297.
Burger King, 471 U.S. at 475 n.17.
8
Applying these principles, in Keeton v. Hustler 1
Magazine Inc., 465 U.S. 770 (1984), the Supreme Court concluded 2
that a New Hampshire federal district court had jurisdiction over 3
the defendant magazine publisher, an Ohio corporation with its 4
principal place of business in California, id. at 772. The Court 5
based its conclusion on the fact that the defendant's magazine in 6
which the alleged libel appeared had a monthly circulation in New 7
Hampshire of 10,000 to 15,000. This established that the 8
defendant "continuously and deliberately exploited the New 9
Hampshire market," creating in the defendant a reasonable 10
expectation that it might be haled into court there in an action 11
based on the contents of the magazine. Id. at 781. 12
Also invoking the minimum contacts rubric, in Calder v. 13
Jones, 465 U.S. 783 (1984) -- decided the same day as Keeton -- 14
the Court concluded that a California state court had personal 15
jurisdiction over The National Enquirer, a nationally distributed 16
weekly with editorial offices in Florida, and a reporter and an 17
editor, both Florida residents, in a lawsuit based on an 18

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5The popular name of these statutes seems likely to have
roots in the expression "the long arm of the law." See, e.g.,
Charles Dickens, The Old Curiosity Shop, Ch. 73 (1841) ("[T]he
failure of a spirited enterprise in the way of their
profession . . . caused their career to receive a sudden check
from the long and strong arm of the law."); see also Michael
Quinion, World Wide Words, http://www.worldwidewords.
org/qa/qa-lon1.htm (last visited June 25, 2007) (tracing the
9
allegedly libelous story about the California activities of a 1
California resident. Id. at 786, 788. Employing what has since 2
come to be called the "effects test," the Court reasoned that 3
because "California is the focal point both of the story and of 4
the harm suffered," jurisdiction over the defendants was "proper 5
in California based on the 'effects' of their Florida conduct in 6
California." Id. at 789. In the language of minimum contacts, 7
when the defendants committed "their intentional, and allegedly 8
tortious, actions . . . expressly aimed at California," they 9
"must [have] 'reasonably anticipate[d] being haled into court 10
there' to answer for the truth of the statements made in their 11
article." Id. at 789-90 (citations omitted). 12
Although Calder and Keeton were handed down 13
simultaneously on similar subjects, they relied on independent, 14
if conceptually overlapping, methods of demonstrating minimum 15
contacts -- Keeton on the defendant's overall activity within the 16
forum state; Calder on the in-state effects of out-of-state 17
activity. 18
C. Long-Arm Statutes and N.Y. C.P.L.R. § 302(a) 19
Relying on International Shoe, state legislatures began 20
enacting laws, known as "long-arm" statutes,5 prescribing the 21

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expression back to The Old Curiosity Shop).
6See, e.g., Cal. Civ. Proc. Code § 410.10; 14 M.R.S. § 704-A
(Maine); Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1,
6, 389 N.E.2d 76, 79 (1979) (interpreting Massachusetts law);
N.J. Ct. R. 4:4-4; Ricker v. Fraza/Forklifts of Detroit, 160 Ohio
App. 3d 634, 640, 828 N.E.2d 205, 210 (Ohio Ct. App. 2005)
(interpreting Ohio law); 42 Pa.C.S. § 5322; R.I. Gen. Laws § 9-5-
33; Tex. Civ. Prac. & Rem. Code § 17.042; Utah Code § 78-27-22;
Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir. 2002)
(interpreting Virginia law).
10
terms under which their courts could exercise personal 1
jurisdiction. Most of these laws explicitly provide, or have 2
been interpreted to provide, that jurisdiction will be permitted 3
to the full extent allowed by the federal Constitution.6 When 4
federal courts sit in such states, there is but one inquiry as to 5
specific personal jurisdiction over the out-of-state defendant: 6
whether the defendant has sufficient contacts with the forum 7
state to satisfy the requirements of due process. See, e.g., 8
Young v. New Haven Advocate, 315 F.3d 256, 261 (4th Cir. 2002) 9
("Because Virginia's long-arm statute extends personal 10
jurisdiction to the extent permitted by the Due Process Clause, 11
the statutory inquiry necessarily merges with the constitutional 12
inquiry, and the two inquiries essentially become one." 13
(citations and internal quotation marks omitted)). 14
The reach of New York's long-arm statute, by contrast, 15
does not coincide with the limits of the Due Process Clause. 16
Analysis under it therefore may involve two separate inquiries, 17
one statutory and one constitutional. If jurisdiction is 18

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11
statutorily impermissible, of course, we need not reach the 1
question of its constitutionality. 2
The New York long-arm statute provides: 3
As to a cause of action arising from any of 4
the acts enumerated in this section, a court 5
may exercise personal jurisdiction over any 6
non-domiciliary, or his executor or 7
administrator, who in person or through an 8
agent: 9
1. transacts any business within the 10
state or contracts anywhere to supply 11
goods or services in the state; or 12
2. commits a tortious act within the 13
state, except as to a cause of action for 14
defamation of character arising from the 15
act; or 16
3. commits a tortious act without the 17
state causing injury to person or 18
property within the state, except as to a 19
cause of action for defamation of 20
character arising from the act, if he 21
(i) regularly does or solicits 22
business, or engages in any other 23
persistent course of conduct, or 24
derives substantial revenue from 25
goods used or consumed or services 26
rendered, in the state, or 27
(ii) expects or should reasonably 28
expect the act to have consequences 29
in the state and derives substantial 30
revenue from interstate or 31
international commerce; or 32
4. owns, uses or possesses any real 33
property situated within the state. 34
N.Y. C.P.L.R. § 302(a). Importantly for present purposes, 35
sections 302(a)(2) and (3), which permit jurisdiction over 36
tortious acts committed in New York and those committed outside 37
New York that cause injuries in the state, respectively, 38

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7"Defamation" includes the torts of libel (usually written)
and slander (usually oral). See, e.g., Marcone v. Penthouse
Int'l Magazine for Men, 754 F.2d 1072, 1080 n.1 (3d Cir. 1985);
Belli v. Orlando Daily Newspapers, Inc., 389 F.2d 579, 586 (5th
Cir. 1967); Varian Med. Sys., Inc. v. Delfino, 113 Cal. App. 4th
273, 293-95, 6 Cal. Rptr. 3d 325, 340-43 (6th Dist. 2003), rev'd
on other grounds, 35 Cal. 4th 180, 25 Cal. Rptr. 3d 298, 106 P.3d
958 (2005).
8There are other possible "gaps" between the extent of
jurisdiction allowed by the New York statute and that permitted
by due process. See, e.g., Banco Ambrosiano, S.p.A. v. Artoc
Bank & Trust, Ltd., 62 N.Y.2d 65, 71-72, 464 N.E.2d 432, 435, 476
N.Y.S.2d 64, 67 (1984) (discussing quasi-in-rem jurisdiction, and
noting that "C.P.L.R. [§] 302 does not provide for in personam
jurisdiction in every case in which due process would permit it,"
so that "a 'gap' exists in which the necessary minimum contacts,
including the presence of defendant's property within the State,
are present, but personal jurisdiction is not authorized by
C.P.L.R. [§] 302"). Section 302(b) also prescribes limits on
jurisdiction in matrimonial cases that may not be coterminous
with the jurisdictional reach of due process. See N.Y. C.P.L.R.
§ 302(b).
12
explicitly exempt causes of action for the tort of defamation7
1
from their scope, whether or not such jurisdiction would be 2
consistent with due process protection. The defamation 3
exceptions thus create a "gap" between the jurisdiction conferred 4
by the New York statute and the full extent of jurisdiction 5
permissible under the federal Constitution. See Ingraham v. 6
Carroll, 90 N.Y.2d 592, 596-97, 687 N.E.2d 1293, 1294-95, 665 7
N.Y.S.2d 10, 11-12 (1997) ("[S]ubdivision [302(a)(3)] was not 8
designed to go to the full limits of permissible jurisdiction. 9
The limitations contained in subparagraphs (i) and (ii) were 10
deliberately inserted to keep the provision well within 11
constitutional bounds.") (citations and internal quotation marks 12
omitted; second brackets in original).8
13

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9"We are bound, as was the district court, to apply [New
York] law as interpreted by New York's intermediate appellate
courts . . . unless we find persuasive evidence that the New York
Court of Appeals, which has not ruled on [an] issue, would reach
a different conclusion." Pahuta v. Massey-Ferguson, Inc., 170
F.3d 125, 134 (2d Cir. 1999) (citations omitted).
13
New York's Appellate Division, First Department,9 has 1
reflected on the reasons for the defamation exception. 2
[T]he Advisory Committee intended to avoid unnecessary 3
inhibitions on freedom of speech or the press. These 4
important civil liberties are entitled to special 5
protections lest procedural burdens shackle them. It 6
did not wish New York to force newspapers published in 7
other states to defend themselves in states where they 8
had no substantial interests, as the New York Times was 9
forced to do in Alabama. 10
Legros v. Irving, 38 A.D.2d 53, 55, 327 N.Y.S.2d 371, 373 (1st 11
Dep't 1971) (referring to N.Y. Times Co. v. Sullivan, 376 U.S. 12
254 (1964), which reversed a large Alabama libel judgment against 13
the New York Times based on a pro-civil rights advertisement that 14
it published where jurisdiction was based on limited daily 15
circulation of the New York Times within Alabama). 16
In light of these intentions, one might think that the 17
New York State legislature meant for no provision of the long-arm 18
statute to grant jurisdiction over an out-of-state defendant with 19
respect to a cause of action for defamation. See Vardinoyannis 20
v. Encyclopedia Britannica, Inc., 89 Civ. 2475, 1990 WL 124338, 21
at *6 n.3, 1990 U.S. Dist. LEXIS 10881, at *9 n.3 (S.D.N.Y. Aug. 22
20, 1990) (Leval, J.) ("Because §§ 302(a)(2) and (3) expressly 23
exclude actions for defamation, there are strong arguments that 24
the legislature intended to bar use of the long-arm statute in 25

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14
defamation cases."). But New York courts have not gone that far. 1
Under New York law, when a person utters a defamatory statement 2
without the state that causes injury to the plaintiff within the 3
state, jurisdiction may be acquired under section 302(a)(1), even 4
though section 302(a)(3) -- which explicitly concerns 5
jurisdiction as to out-of-state tortious acts that cause in-state 6
injury -- excludes defamation cases from its scope. 7
Legros itself relied on section 302(a)(1) to support 8
jurisdiction over an out-of-state defendant in a defamation case. 9
After describing the history of the statute, the court defended 10
its reliance on section 302(a)(1), which covers transactions of 11
business within the state, to establish jurisdiction. 12
There is a clear distinction between a 13
situation where the only act which occurred 14
in New York was the mere utterance of the 15
libelous material and on the other hand, a 16
situation where purposeful business 17
transactions have taken place in New York 18
giving rise to the cause of action. Where 19
purposeful transactions of business have 20
taken place in New York, it may not be said 21
that subjecting the defendant to this State's 22
jurisdiction is an "unnecessary inhibition on 23
freedom of speech or the press." 24
Legros, 38 A.D.2d at 55-56, 327 N.Y.S.2d at 373. Because 25
"virtually all the work attendant upon publication of the book 26
[containing the alleged libel] occurred in New York," 27
jurisdiction over the defendant under subsection (1) was proper. 28
Id. at 56, 327 N.Y.S.2d at 373. 29
D. Defamation Cases under Section 302(a)(1) 30

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15
New York courts evaluating specific jurisdiction under 1
section 302(a)(1) look to both the language of the statute and 2
the relation between the alleged conduct and the cause of action. 3
To determine the existence of jurisdiction under section 4
302(a)(1), a court must decide (1) whether the defendant 5
"transacts any business" in New York and, if so, (2) whether this 6
cause of action "aris[es] from" such a business transaction. See 7
Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 8
71, 850 N.E.2d 1140, 1142, 818 N.Y.S.2d 164, 166 (2006). Courts 9
look to "the totality of the defendant's activities within the 10
forum," Sterling Nat'l Bank & Trust Co. of N.Y. v. Fidelity 11
Mortgage Investors, 510 F.2d 870, 873 (2d Cir. 1975) (citation 12
and internal quotation marks omitted), to determine whether a 13
defendant has "transact[ed] business" in such a way that it 14
constitutes "purposeful activity" satisfying the first part of 15
the test, see id. at 874; Longines-Wittnauer Watch Co. v. Barnes 16
& Reinecke, Inc., 15 N.Y.2d 443, 457, 261 N.Y.S.2d 8, 18-19, 209 17
N.E.2d 68, 75, cert. denied, 382 U.S. 905 (1965). As for the 18
second part of the test, "[a] suit will be deemed to have arisen 19
out of a party's activities in New York if there is an 20
articulable nexus, or a substantial relationship, between the 21
claim asserted and the actions that occurred in New York." 22
Henderson v. INS, 157 F.3d 106, 123 (2d Cir. 1998) (internal 23
quotation marks omitted); accord Deutsche Bank, 7 N.Y.3d at 71, 24
850 N.E.2d at 1142, 818 N.Y.S.2d at 166-67. 25
1. Transacting Business 26

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10Section 302(a)(1)'s "transact[ing] business" language does
not require that the business in question be commercial in
nature. In Padilla v. Rumsfeld, 352 F.3d 695, 709 (2d Cir.
2003), rev'd on other grounds, 542 U.S. 426 (2004), we noted that
the purpose of section 302(a)(1) "was to extend the jurisdiction
of New York courts over nonresidents who have engaged in some
purposeful activity here in connection with the matter in suit"
and that "the statute's jurisprudential gloss and its legislative
history suggest that its 'transacts business' clause is not
restricted to commercial activity." (citations, brackets, and
internal quotation marks omitted) (emphasis added). We noted
there that "transacting business" under Section 302(a)(1) has
been held to include:
engaging in active bidding on an open phone line from
California, Parke-Bernet[ Galleries v. Franklyn, 26
N.Y.2d 13, 19, 308 N.Y.S.2d 337, 342, 256 N.E.2d 506,
509 (1970)]; the conducting of proceedings and
disciplinary hearings on membership by a private
organization, Garofano v. U.S. Trotting Assoc., 78
Misc. 2d 33, 355 N.Y.S.2d 702, 705-06 (Sup. Ct. 1974);
the execution of a separation agreement, Kochenthal v.
Kochenthal, 28 A.D.2d 117, 282 N.Y.S.2d 36, 38 (N.Y.
App. Div. 1967); the making of a retainer for legal
services, Elman v. Belson, 32 A.D.2d 422, 302 N.Y.S.2d
961, 964-65 ([N.Y. App. Div.] 1969); the entry into New
York by non-domiciliary defendants to attend a meeting,
Parker v. Rogerson, 33 A.D.2d 284, 307 N.Y.S.2d 986,
994-95 (N.Y. App. Div. 1970), appeal dismissed, 26
N.Y.2d 964, 311 N.Y.S.2d 7, 259 N.E.2d 479 (1970); and
the conducting of audits, U.S. Steel Corp. v.
Multistate Tax Comm'n, 367 F. Supp. 107, 121 (S.D.N.Y.
16
With respect to the first part of the test for 1
jurisdiction under section 302(a)(1), New York courts define 2
"transact[ing] business" as purposeful activity -- "'some act by 3
which the defendant purposefully avails itself of the privilege 4
of conducting activities within the forum State, thus invoking 5
the benefits and protections of its laws.'" McKee Elec. Co. v. 6
Rauland-Borg Corp., 20 N.Y.2d 377, 382, 229 N.E.2d 604, 607, 283 7
N.Y.S.2d 34, 37-38 (1967) (quoting Hanson v. Denckla, 357 U.S. 8
235, 253 (1958)).10 This "purposeful[] avail[ment]" language 9

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1973).
Padilla, 352 F.3d at 709 n.19.
17
defining "transacting business" has been adopted by the New York 1
Court of Appeals from Supreme Court cases analyzing the 2
constitutional limitations on a state's power to assert personal 3
jurisdiction over a non-domiciliary defendant. See Kreutter v. 4
McFadden Oil Corp., 71 N.Y.2d 460, 467, 522 N.E.2d 40, 43, 527 5
N.Y.S.2d 195, 198 (1988) ("New York's long-arm statute, C.P.L.R. 6
§ 302, was enacted in response to [inter alia, McGee v. 7
International Life Ins. Co., 355 U.S. 220 (1957), and 8
International Shoe Co. v. Washington, 326 U.S. 310 (1945)]."). 9
New York decisions thus, at least in their rhetoric, tend to 10
conflate the long-arm statutory and constitutional analyses by 11
focusing on the constitutional standard: whether the defendant's 12
conduct constitutes "purposeful[] avail[ment]" "of the privilege 13
of conducting activities within the forum State, thus invoking 14
the benefits and protections of its laws." Denckla, 357 U.S. at 15
253; see, e.g., McKee, 20 N.Y.2d at 382, 229 N.E.2d at 607, 283 16
N.Y.S.2d at 37-38 (quoting Denckla, 357 U.S. at 253). 17
It may be that the meaning of "transact[ing] business" 18
for the purposes of section 302(a)(1) overlaps significantly with 19
the constitutional "minimum contacts" doctrine. See McKee, 20 20
N.Y.2d at 382, 229 N.E.2d at 607, 283 N.Y.S.2d at 37 ("[I]t seems 21
to us the contacts here, rather than being minimal, were so 22
infinitesimal, both in light of Hanson v. Denckla, 357 U.S. 235 23

-- 17 of 36 --

18
[(1958),] and Longines-Wittnauer Watch Co. v. Barnes & 1
Reinecke, 15 N.Y.2d 443[, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965)], 2
that jurisdiction of the New York courts cannot be sustained."); 3
Deutsche Bank, 7 N.Y.3d at 71-72, 850 N.E.2d at 1142-43, 818 4
N.Y.S.2d at 166-67 (discussing the section 302(a)(1) and due 5
process requirements seemingly simultaneously); Donini Int'l, 6
S.p.A. v. Satec (U.S.A.) LLC, 03 Civ. 9471, 2004 WL 1574645, at 7
*5, 2004 U.S. Dist. LEXIS 13148, at *16 (S.D.N.Y. July 13, 2004) 8
(noting that the analysis under section 302 is "in essence, the 9
same as that established by the United States Supreme Court to 10
evaluate the constitutionality of personal jurisdiction under 11
long-arm statutes"). But we do not understand New York courts to 12
teach that the "gap" created by the defamation exceptions in 13
sections 302(a)(2) and (3), see Ingraham, 90 N.Y.2d at 597, 687 14
N.E.2d at 1294-95, 665 N.Y.S.2d at 11-12, is eliminated by the 15
"transact[ing] business" analysis. Some distance remains between 16
the jurisdiction permitted by the Due Process Clause and that 17
granted by New York's long-arm statute. 18
New York courts do not interpret "transact[ing] 19
business" to include mere defamatory utterances sent into the 20
state. Although section 302(a)(1) does not exclude defamation 21
from its coverage, New York courts construe "transacts any 22
business within the state" more narrowly in defamation cases than 23
they do in the context of other sorts of litigation. In other 24
cases, "proof of one transaction," or a "single act," "in New 25
York is sufficient to invoke [long-arm] jurisdiction, even though 26

-- 18 of 36 --

19
the defendant never enters New York," Deutsche Bank, 7 N.Y.3d at 1
71, 850 N.E.2d at 1142, 818 N.Y.S.2d at 166-67 (internal 2
quotation marks omitted); see also Parke-Bernet Galleries, Inc. 3
v. Franklyn, 26 N.Y.2d 13, 17, 256 N.E.2d 506, 508, 308 N.Y.S.2d 4
337, 340 (1970) (finding jurisdiction where out-of-state 5
defendant never entered New York, but participated in a live 6
auction in New York by making one telephone call to New York and 7
thus was "receiving and transmitting bids over an open telephone 8
line"); Fischbarg v. Doucet, 38 A.D.3d 270, 832 N.Y.S.2d 164, 9
2007 N.Y. Slip Op. 1964, at *2 (1st Dep't Mar. 13, 2007) (finding 10
jurisdiction over out-of-state defendants who solicited New York 11
lawyer plaintiff to provide them with legal advice and called, 12
emailed, and faxed the plaintiff in New York pursuant to such 13
representation, though defendants never entered the state); 14
Catauro v. Goldome Bank for Sav., 189 A.D.2d 747, 748, 592 15
N.Y.S.2d 422, 422 (2d Dep't 1993) (finding jurisdiction where 16
Missouri defendant called a New York bank with an inquiry, 17
"mailed letters to the bank, enclosing the bankbook and the power 18
of attorney," and thereafter received money from the bank). But 19
see Kimco Exchange Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 20
433, 434, 824 N.Y.S.2d 353, 354 (2d Dep't 2006) ("The defendants' 21
acts of faxing the executed contracts to New York and of making a 22
few telephone calls do not qualify as purposeful acts 23
constituting the transacting of business."). In defamation 24
cases, by contrast, the "single act" of uttering a defamation, no 25
matter how loudly, is not a "transact[ion of] business" that may 26

-- 19 of 36 --

11Our interpretation of section 302(a)(1) factors into the
analysis the defamation exemptions contained in sections
302(a)(2) and (3) consistent with the "cardinal rule" of
statutory construction "that a statute is to be read as a whole,
since the meaning of statutory language, plain or not, depends on
context." King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991)
(citations omitted); accord Handberry v. Thompson, 436 F.3d 52,
68 (2d Cir. 2006).
20
provide the foundation for personal jurisdiction. In other 1
words, when the defamatory publication itself constitutes the 2
alleged "transact[ion of] business" for the purposes of 3
section 302(a)(1), more than the distribution of a libelous 4
statement must be made within the state to establish long-arm 5
jurisdiction over the person distributing it.11
6
Consistent with this analysis, in cases where the 7
plaintiff has brought a defamation action based on letters the 8
defendant sent into New York from outside the state, New York 9
courts have concluded that the act of sending the letters into 10
the state does not alone amount to a transaction of business 11
within the state under Section 302(a)(1). For example, in Kim v. 12
Dvorak, 230 A.D.2d 286, 658 N.Y.S.2d 502 (3d Dep't 1997), the 13
Third Department concluded that the sending of four allegedly 14
defamatory letters by the defendant to health care professionals 15
in New York did not constitute transaction of business in the 16
state, id. at 290, 658 N.Y.S.2d at 505. To hold otherwise, the 17
court said, would "unjustifiably extend the intendment of the 18
Legislature to allow, in limited circumstances, the reach of this 19
State's jurisdiction beyond its borders." Id. In Pontarelli v. 20
Shapero, 231 A.D.2d 407, 647 N.Y.S.2d 185 (1st Dep't 1996), the 21

-- 20 of 36 --

21
First Department similarly decided that the sending of two 1
allegedly defamatory letters and one facsimile into New York did 2
not constitute transaction of business in the state for purposes 3
of section 302(a)(1), id. at 410-11, 647 N.Y.S.2d at 188. And in 4
Strelsin v. Barrett, 36 A.D.2d 923, 320 N.Y.S.2d 886 (1st Dep't 5
1971), the court concluded that it did not have jurisdiction over 6
a California defendant who had allegedly libeled the plaintiff in 7
a television broadcast recorded in California. Subsequent 8
distribution of a tape of the broadcast in New York "d[id] not 9
constitute doing business in New York by the newscaster who 10
performed elsewhere." Id. at 923, 320 N.Y.S.2d at 885. 11
To be sure, New York courts have found jurisdiction in 12
cases where the defendants' out-of-state conduct involved 13
defamatory statements projected into New York and targeting New 14
Yorkers, but only where the conduct also included something more. 15
In Sovik v. Healing Network, 244 A.D.2d 985, 665 N.Y.S.2d 997 16
(4th Dep't 1997), for example, the Appellate Division, Fourth 17
Department, concluded that one allegedly defamatory letter sent 18
by the defendants could provide a basis for jurisdiction where 19
the defendants had "drafted the letter and either distributed or 20
authorized the distribution of the letter in the Buffalo area," 21
thereby demonstrating the defendants' "active involvement and 22
personal control [in New York] over the writing and distribution 23
of the allegedly defamatory statement." Id. at 987, 665 N.Y.S.2d 24
at 999 (affirming district court's decision that plaintiffs were 25
entitled to jurisdictional discovery); cf. Legros, 38 A.D.2d at 26

-- 21 of 36 --

22
55-56, 327 N.Y.S.2d at 373 (concluding that the publication of an 1
allegedly defamatory book for which "virtually all the work 2
attendant upon publication" had occurred in New York, including 3
the research for it and the negotiations and execution of the 4
contract with the publisher, constituted "transactions of 5
business" for the purposes of section 302(a)(1)); Modica v. 6
Westchester Rockland Newspapers, Inc., 54 Misc. 2d 1086, 283 7
N.Y.S.2d 939 (Sup. Ct. Westchester County 1967) (finding 8
jurisdiction proper under section 302(a)(1) where the newspaper 9
containing an allegedly defamatory column was published in New 10
York for New York readers). 11
2. "Arising from" a Transaction of Business 12
If the defendant is transacting business in New York, 13
the second half of the section 302(a)(1) inquiry asks whether the 14
cause of action "aris[es] from" that business transaction or 15
transactions. See Deutsche Bank, 7 N.Y.3d at 71, 850 N.E.2d at 16
1142, 818 N.Y.S.2d at 167. "New York courts have held that a 17
claim 'aris[es] from' a particular transaction when there is 18
'some articulable nexus between the business transacted and the 19
cause of action sued upon,' or when 'there is a substantial 20
relationship between the transaction and the claim asserted.'" 21
Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt., LLC, 450 F.3d 22
100, 103 (2d Cir. 2006) (citations omitted). "A connection that 23
is 'merely coincidental' is insufficient to support 24
jurisdiction." Id. (citation omitted). 25

-- 22 of 36 --

23
Under the "arises from" prong, New York courts have 1
also concluded that they lacked jurisdiction over out-of-state 2
defendants accused of having uttered defamatory falsehoods where 3
the "[defamation] claim did not arise from the defendants' 4
specific business transactions in New York." Realuyo v. Villa 5
Abrille, 01 Civ. 10158, 2003 WL 21537754, at *6, 2003 U.S. Dist. 6
LEXIS 11529, at *17 (S.D.N.Y. July 8, 2003) (noting that the 7
defendants were not involved in the publication or distribution 8
of the allegedly libelous article at issue). In Talbot v. 9
Johnson Newspaper Corp., 71 N.Y.2d 827, 522 N.E.2d 1027, 527 10
N.Y.S.2d 729 (1988), for example, a California resident wrote two 11
letters to the president and board of trustees of St. Lawrence 12
University. In the letter, he alleged that his daughter had seen 13
the plaintiff, a school athletic coach, drunk at a fraternity 14
party. Id. at 828, 522 N.E.2d at 1028, 527 N.Y.S.2d at 730. A 15
newspaper later published one of the letters, which it had 16
received from one of the trustees, and quoted from a telephone 17
interview with the daughter, who was also a California resident. 18
In concluding that New York courts did not have jurisdiction over 19
the father and daughter in a defamation suit brought against them 20
by the coach, the New York Court of Appeals did not address 21
whether the letters or the telephone call into the state could 22
themselves constitute "purposeful activities." Instead, it found 23
that even if the daughter's attendance at St. Lawrence could 24
qualify as a purposeful activity, jurisdiction would be improper 25
because the cause of action did not arise out of that contact 26

-- 23 of 36 --

24
with New York. Id. at 829, 522 N.E.2d at 1029, 527 N.Y.S.2d at 1
731. And in American Radio Association, AFL-CIO v. A. S. Abell 2
Co., 58 Misc. 2d 483, 296 N.Y.S.2d 21 (Sup. Ct. N.Y. County 3
1968), the court noted that the defendant, the publisher of the 4
Baltimore Sun, which circulated 400 copies in New York State and 5
derived just over 3% of its advertising revenue from New York, 6
might transact business in New York, but the court concluded that 7
the defamation claim did not arise from any of those contacts, 8
id. at 484-85, 296 N.Y.S.2d at 22-23. ("[N]ot one [of the alleged 9
contacts] may be relied upon to uphold jurisdiction under the 10
long-arm statute since the cause of action alleged in the 11
complaint does not, as is required by statute, arise from any of 12
the acts enumerated."). Instead, "[t]he acts of publication, of 13
distribution and of circulation which underlie the alleged 14
grievances occurred in Baltimore and not here." Id. at 485, 296 15
N.Y.S.2d at 23. 16
E. Section 302(a)(1) and Case Law Respecting Defamatory Websites 17
While no New York appellate court has yet explicitly 18
analyzed a case of website defamation under the "transact[ing] 19
business" provision of section 302(a)(1), several federal 20
district courts in New York have. Consistent with the principles 21
developed in the New York cases discussed above, these courts 22
have concluded that the posting of defamatory material on a 23
website accessible in New York does not, without more, constitute 24
"transact[ing] business" in New York for the purposes of New 25
York's long-arm statute. See Realuyo, 2003 WL 21537754, at *7, 26

-- 24 of 36 --

25
2003 U.S. Dist. LEXIS 11529, at *20-21 (deciding that the 1
availability of an article on a website, without more, does not 2
amount to "transaction of business" for purposes of 3
section 302(a)(1)); see also Starmedia Network, Inc. v. Star 4
Media, Inc., 00 Civ. 4647, 2001 WL 417118, at *3, 2001 U.S. Dist. 5
LEXIS 4870, at *7 (S.D.N.Y. Apr. 23, 2001) ("[I]t is now well 6
established that one does not subject himself to the jurisdiction 7
of the courts in another state simply because he maintains a web 8
site which residents of that state visit.") (citation and 9
quotation indication omitted). In addition, to the extent that 10
there are business transactions incident to establishing a 11
website, a defamation claim based on statements posted on a 12
website does not "arise from" such transactions. See Realuyo, 13
2003 WL 21537754, at *7, 2003 U.S. Dist. LEXIS 11529, at *20-22 14
(finding that "the publication of the article was not the 15
transaction of business in New York" and the defamation claim did 16
not arise from advertising links on the website); see also 17
Competitive Techs., Inc. v. Pross, 13297/2006, 14 Misc. 3d 18
1224(A), 2007 WL 283075, at *3, 2007 N.Y. Misc. LEXIS 217, at *8 19
(Sup. Ct. Suffolk County, Jan. 26, 2007) (concluding that 20
libelous statements posted on a Yahoo! message board did not give 21
rise to jurisdiction because they were "not in connection with 22
any business transactions"). 23
F. Internet Defamation, and Analysis under Zippo Mfg. Co. 24
In analyzing personal jurisdiction in the internet 25
context, so many courts have turned to the standards set out more 26

-- 25 of 36 --

26
than ten years ago by a judge of the Western District of 1
Pennsylvania in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. 2
Supp. 1119 (W.D. Pa. 1997) (cited by, e.g., Toys "R" Us, Inc. v. 3
Step Two, S.A., 318 F.3d 446, 452 (3d Cir. 2003) (calling Zippo 4
the "seminal authority regarding personal jurisdiction based upon 5
the operation of an Internet web site"); ALS Scan, Inc. v. 6
Digital Serv. Consultants, Inc., 293 F.3d 707, 713-14 (4th Cir. 7
2002) (adopting the Zippo model); Cybersell, Inc. v. Cybersell, 8
Inc., 130 F.3d 414, 418 (9th Cir. 1997); Citigroup Inc. v. City 9
Holding Co., 97 F. Supp. 2d 549, 565 (S.D.N.Y. 2000)), that the 10
opinion warrants separate mention here. In Zippo, the court 11
applied traditional due process "minimum contacts" principles to 12
determine whether jurisdiction over the out-of-state website 13
proprietor was constitutionally permissible. Zippo, 952 F. Supp. 14
at 1122 (citing Pennsylvania's long-arm statute, 42 Pa. C.S.A. 15
§ 5322(b), which allows Pennsylvania courts to exercise 16
jurisdiction to the "fullest extent allowed under the 17
Constitution"). Noting that "the likelihood that personal 18
jurisdiction can be constitutionally exercised is directly 19
proportionate to the nature and quality of commercial activity 20
that an entity conducts over the Internet," the court explained 21
the spectrum of internet interactivity that many courts have 22
since invoked in determining jurisdiction. 23
At one end of the spectrum are situations 24
where a defendant clearly does business over 25
the Internet. If the defendant enters into 26
contracts with residents of a foreign 27
jurisdiction that involve the knowing and 28

-- 26 of 36 --

12 Ultimately, the Zippo court did not itself rely on this
approach to evaluate the defendant's contacts with Pennsylvania.
The defendant had sold passwords to its news-services website to
3,000 Pennsylvania subscribers and had contracted with seven
Internet access providers in Pennsylvania. Id. at 1126. The
court found that such "conduct[] of electronic commerce with
Pennsylvania residents constitutes the purposeful availment of
doing business in Pennsylvania." Id. at 1125-26.
27
repeated transmission of computer files over 1
the Internet, personal jurisdiction is 2
proper. At the opposite end are situations 3
where a defendant has simply posted 4
information on an Internet Web site which is 5
accessible to users in foreign jurisdictions. 6
A passive Web site that does little more than 7
make information available to those who are 8
interested in it is not grounds for the 9
exercise [of] personal jurisdiction. The 10
middle ground is occupied by interactive Web 11
sites where a user can exchange information 12
with the host computer. In these cases, the 13
exercise of jurisdiction is determined by 14
examining the level of interactivity and 15
commercial nature of the exchange of 16
information that occurs on the Web site. 17
Id. at 1124 (citations omitted).12
18
Several federal district courts in New York have 19
applied the Zippo formulation to website defamation cases in 20
analyzing personal jurisdiction under section 302(a)(1). 21
See Citigroup, 97 F. Supp. 2d at 565 ("At the very least, the 22
interactivity of the [defendant's] site brings this case within 23
the middle category of internet commercial activity. Moreover, 24
the interaction is both significant and unqualifiedly commercial 25
in nature and thus rises to the level of transacting business 26
required under CPLR § 302(a)(1)."); Realuyo, 2003 WL 21537754, at 27
*6-*7, 2003 U.S. Dist. LEXIS 11529, at *20-*22 (declining to 28
exercise jurisdiction over defendant newspaper/website proprietor 29

-- 27 of 36 --

28
because its website, on which alleged libel was posted, was 1
"passive"; having 332 non-paying email registrants in New York 2
was insufficient to establish jurisdiction under Section 3
302(a)(1)). In Lenahan Law Offices, LLC v. Hibbs, 04-cv-6376, 4
2004 WL 2966926, at *6 (W.D.N.Y. Dec. 22, 2004), the plaintiff 5
argued that the defendant's website, which contained allegedly 6
defamatory material about the plaintiff, fell into the "middle 7
range" of the Zippo sliding scale because the website permitted 8
the defendant to answer questions posted by users. The court 9
rejected that argument, concluding that such low-level 10
interactivity was insufficient to support jurisdiction. "Absent 11
an allegation that Hibbs is projecting himself into New York, 12
this Court cannot exercise specific personal jurisdiction over 13
him." Id. Even if such interactivity could constitute 14
"transacting business" under section 302(a)(1), the court 15
concluded, the plaintiff had failed to show that its cause of 16
action "arose" from such transactions since the allegedly 17
defamatory material was posted on a passive portion of the 18
website. Id. 19
While analyzing a defendant's conduct under the Zippo 20
sliding scale of interactivity may help frame the jurisdictional 21
inquiry in some cases, as the district court here pointed out, 22
"it does not amount to a separate framework for analyzing 23
internet-based jurisdiction." Best Van Lines, 2004 WL 964009, at 24
*3, 2004 U.S. Dist. LEXIS 7830, at *9. Instead, "traditional 25
statutory and constitutional principles remain the touchstone of 26

-- 28 of 36 --

13The spectrum may also be helpful in analyzing whether
jurisdiction is permissible under due process principles. We
note that the court in Zippo and most, if not all, of the courts
that subsequently adopted the Zippo sliding scale were evaluating
whether jurisdiction in those cases comported with due process,
under state long-arm statutes that recognized jurisdiction
coterminous with the extent allowed by the federal Constitution.
See, e.g., Young, 315 F.3d at 261. We make no comment at this
point on the relevance of the Zippo sliding scale in New York in
evaluating whether the exercise of jurisdiction would be
29
the inquiry." Id. As the Zippo court itself noted, personal 1
jurisdiction analysis applies traditional principles to new 2
situations. Zippo, 952 F. Supp. at 1123 ("[A]s technological 3
progress has increased the flow of commerce between States, the 4
need for jurisdiction has undergone a similar increase." (quoting 5
Hanson, 357 U.S. at 250-51) (internal quotation marks omitted)). 6
We think that a website's interactivity may be useful for 7
analyzing personal jurisdiction under section 302(a)(1), but only 8
insofar as it helps to decide whether the defendant "transacts 9
any business" in New York -- that is, whether the defendant, 10
through the website, "purposefully avail[ed] himself of the 11
privilege of conducting activities within New York, thus invoking 12
the benefits and protections of its laws." Cutco Indus. v. 13
Naughton, 806 F.2d 361, 365 (2d Cir. 1986); see also Deutsche 14
Bank, 7 N.Y.3d at 71-72, 850 N.E.2d at 1143, 818 N.Y.S.2d at 167 15
(determining that there was jurisdiction over a sophisticated 16
institutional trader from Montana who "knowingly initiat[ed] and 17
pursu[ed] a negotiation with [plaintiff] in New York [via instant 18
messaging] that culminated in the sale of $15 million in bonds," 19
thus "enter[ing] New York to transact business").13
20

-- 29 of 36 --

consistent with due process.
30
III. Long-Arm Jurisdiction over Walker 1
To decide this appeal, then, we must determine whether 2
the conduct out of which BVL's claim arose was a "transact[ion 3
of] business" under section 302(a)(1). In other words, were 4
Walker's internet postings or other activities the kind of 5
activity "by which the defendant purposefully avail[ed him]self 6
of the privilege of conducting activities within the forum State, 7
thus invoking the benefits and protections of its laws," McKee, 8
20 N.Y.2d at 382, 229 N.E.2d at 608, 283 N.Y.S.2d at 37-38 9
(internal quotation marks omitted), and over which the New York 10
legislature intended New York courts to have jurisdiction? BVL 11
argues that there are three different factual bases for an 12
affirmative conclusion. 13
A. The "Black List Report" 14
BVL first asserts that Walker's inclusion of a report 15
on BVL in his "Black List Report" contained allegedly false and 16
defamatory statements about BVL. Compl. ¶ 7. As we have seen, 17
New York case law establishes that making defamatory statements 18
outside of New York about New York citizens does not, without 19
more, provide a basis for jurisdiction, even when those 20
statements are published in media accessible to New York readers. 21
Walker's "Black List Report" seems to be exactly that -- 22
allegedly defamatory statements posted on a website accessible to 23
readers in New York. As with the column in Realuyo, Walker's 24

-- 30 of 36 --

31
listing of BVL on his Black List arises "solely from the aspect 1
of the website from which anyone –- in New York or throughout the 2
world –- could view and download the allegedly defamatory 3
article." Realuyo, 2003 WL 21537754, at *7, 2003 U.S. Dist. 4
LEXIS 11529, at *21; see also McBee v. Delica Co., Ltd., 417 F.3d 5
107, 124 (1st Cir. 2005) ("[T]he mere existence of a website that 6
is visible in a forum and that gives information about a company 7
and its products is not enough, by itself, to subject a defendant 8
to personal jurisdiction in that forum."); Jennings v. AC 9
Hydraulic A/S, 383 F.3d 546, 549-50 (7th Cir. 2004) (similar); 10
ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 11
713-15 (4th Cir. 2002) (similar); Competitive Techs., Inc. v. 12
Pross, 14 Misc. 3d 1224(A), 2007 WL 283075, at *3, 2007 N.Y. 13
Misc. LEXIS 217, at *9 (Sup. Ct. Suffolk County, Jan. 26, 2007) 14
("[I]n order to exercise personal jurisdiction over a 15
non-resident defendant, something more than the mere posting of 16
information on a passive web site is required to indicate that 17
the defendant purposefully directed his activities at the forum 18
state." (citation omitted)). 19
Moreover, the nature of Walker's comments does not 20
suggest that they were purposefully directed to New Yorkers 21
rather than a nationwide audience. Material on the Website 22
discusses interstate moving companies located in many states for 23
the putative benefit of potential persons in many states who will 24
undergo household moves. Compl. ¶ 2. Walker's comments 25
therefore do not establish that, for purposes of section 26

-- 31 of 36 --

14We express no view, of course, as to whether the Black
List postings might have satisfied the minimum contacts
requirement under the constitutional "effects test" employed in
Calder, 465 U.S. at 789-90, or the analysis in Keeton, 465 U.S.
at 773-74, 781, based on the defendant's magazine's in-state
monthly circulation and the defendant's accompanying continuous
and deliberate exploitation of the in-state market. We think it
worth noting nonetheless that the Keeton analysis is roughly
similar to the inquiry under section 302(a)(1), which focuses on
transactions of business within the state. Calder's "effects
test," by contrast, is not relevant to the New York long-arm
statute analysis under section 302(a)(1). New York courts would
evaluate personal jurisdiction asserted on the basis of allegedly
tortious conduct committed outside the state and targeted at
alleged New York victims under section 302(a)(3). And Section
302(a)(3), which is roughly analogous to the "effects test" in
Calder, specifically exempts defamation from its reach.
32
302(a)(1), he "purposefully avail[ed] himself of the privilege of 1
conducting activities within New York, thus invoking the benefits 2
and protections of its laws." Cutco Indus., 806 F.2d at 365 3
(alterations and internal quotation marks omitted) (emphasis 4
added).14
5
We conclude that posting the "Black List Report" does 6
not constitute "transact[ing] business" under section 302(a)(1). 7
B. Walker's Answer to a User's Question 8
We reach the same conclusion with respect to Walker's 9
allegedly defamatory statement about BVL posted as a response to 10
a user's question. We fail to perceive why the fact that a 11
statement was or was not in response to a question from someone 12
somewhere else would, alone, make a difference. Prompted or 13
otherwise, New York courts require more than "the mere utterance 14
of the libelous material," Legros, 38 A.D.2d at 55, to constitute 15
"transact[ing] business" under section 302(a)(1). See Kim, 230 16

-- 32 of 36 --

33
A.D.2d at 290, 658 N.Y.S.2d at 504; Yanni v. Variety, Inc., 48 1
A.D.2d 803, 369 N.Y.S.2d 448 (1st Dep't 1975) (finding no 2
jurisdiction over an out-of-state defendant who placed an 3
allegedly defamatory advertisement in a California newspaper); 4
Strelsin, 36 A.D.2d 923, 320 N.Y.S.2d 885. 5
C. Website Donations 6
The final factual basis asserted by BVL for 7
jurisdiction over Walker here is the portion of the Website 8
through which Walker accepts donations. This feature is the most 9
"interactive" on the Website, which may place it at the "clearly 10
do[ing] business" end of the Zippo spectrum. Zippo, 952 F. Supp. 11
2d at 1124. And particularly if one were to use the Zippo 12
framework, it might constitute doing business in New York. But 13
here, even if that were enough to render it "transact[ing] any 14
business within the state" under section 302(a)(1), BVL's claim 15
does not "arise from" the Website's acceptance of donations for 16
the purposes of section 302(a)(1). There is no "articulable 17
nexus, or a substantial relationship," Henderson, 157 F.3d at 123 18
(internal quotation marks omitted), between the donations and the 19
allegedly defamatory conduct. See Realuyo, 2003 WL 21537754, at 20
*6, 2003 U.S. Dist. LEXIS 11529, at *16-17; Bassili v. Chu, 242 21
F. Supp. 2d 223, 229 (W.D.N.Y. 2002). 22
BVL asserts that the Website's "primary function and 23
business is to publish negative information about companies, 24
including a 20 percent New York base, and the Website's visitors 25
make donations solely because of the overwhelming negative 26

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comments and content on the website." Appellant's Br. in 1
Response to Br. by Amicus Curiae at 22-23 (emphasis omitted). 2
But this nexus –- between allegedly tortious conduct and the 3
revenue transactions required to support such conduct –- is so 4
attenuated, the relationship between the quest for funds and the 5
lawsuit for which jurisdiction is sought so insubstantial, that 6
the nexus or relationship cannot alone be a sufficient basis upon 7
which to establish jurisdiction over the defendant for purposes 8
of this case. See Realuyo, 2003 WL 21537754, at *7, 2003 U.S. 9
Dist. LEXIS 11529, at *21 (noting that although the defendant's 10
website's advertising links may have been "interactive," the 11
defamation claim did not arise from such links); Hy Cite Corp. v. 12
Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154, 1165 (W.D. 13
Wis. 2004) (explaining that a sale on the website had 14
insufficient nexus to defamation and trademark infringement 15
claims when "[t]he only relationship between the sale and the 16
lawsuit is that the sale occurred through the website"). The 17
donation section of the Website, unrelated to the publication 18
that underlies this lawsuit, therefore does not provide the 19
district court with jurisdiction under section 302(a)(1). 20
IV. Due Process Analysis 21
As we have noted, New York law has relied significantly 22
on due process cases in developing its jurisprudence under its 23
long-arm statute. We have therefore discussed them here. But we 24
do so only as a means of understanding New York State long-arm 25
jurisdiction. Nothing in this opinion is intended, or should be 26

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read, to indicate our view as to whether jurisdiction in this 1
case would have passed Fourteenth Amendment muster. Neither 2
should anything we have said be interpreted to indicate our 3
position with respect to due process principles recently 4
developed in the internet context by other circuits in decisions 5
such as Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002), and Young 6
v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002). 7
V. Jurisdictional Discovery 8
BVL argues that it is entitled to jurisdictional 9
discovery on the issue of personal jurisdiction. We review for 10
abuse of discretion the district court's decision not to permit 11
jurisdictional discovery because BVL failed to establish a prima 12
facie case of personal jurisdiction. First City, Texas-Houston, 13
N.A. v. Rafidain Bank, 150 F.3d 172, 175 (2d Cir. 1998). We 14
conclude that the district court acted well within its discretion 15
in declining to permit discovery because the plaintiff had not 16
made out a prima facie case for jurisdiction. See Jazini v. 17
Nissan Motor Co., 148 F.3d 181, 186 (2d Cir. 1998) (finding that 18
the district court did not err in denying jurisdictional 19
discovery where the plaintiffs did not establish a prima facie 20
case that the district court had jurisdiction over the 21
defendant); Lehigh Valley Indus. v. Birenbaum, 527 F.2d 87, 93-94 22
(2d Cir. 1975) (similar). We therefore affirm the district 23
court's decision declining to order jurisdictional discovery. 24

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CONCLUSION 1
For the foregoing reasons, we affirm the judgment of 2
the district court. 3

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