DECISION
Graphic Controls Corporation (“Graphic Controls”) seeks review of the decision of the United States District Court for the Western District of New York in
Graphic Controls Corp. v. Utah Medical Products, Inc.,
No. 96-CV-0459E(F),
BACKGROUND
The district court issued its ruling based upon the following jurisdictional facts: 1 Utah Medical is a corporation incorporated under the laws of the state of Utah with its principal place of business in Utah. Utah Medical is engaged in the business of designing, manufacturing and marketing medical devices, including an intrauterine pressure catheter (“IUPC”). Utah Medical’s IUPC is covered by its Patent No. 4,785,822 (the ’822 patent). In 1993, Utah Medical had approximately two-thirds of the IUPC market and may have had approximately 90% of this market by 1996. Graphic Controls, a corporation organized under the laws of the state of New York and headquartered in New York, also sells an IUPC device.
*1384 Utah Medical has no office, employees, telephone numbers, assets or bank accounts in New York. Until the end of 1995, two independent distributors, Atlantic Medical Systems, Inc. (“Atlantic”) and Baystate Anesthesia, solicited sales of Utah Medical’s medical products in the northeastern region of the country, including New York. Atlantic is located in New York and Baystate Anesthesia is located in Massachusetts. These distributors also sold the products of other companies. In 1996, Atlantic became Utah Medical’s sole distributor in the northeast. In each of the three years, 1994-1996, Utah Medical had less than $450,000 in estimated gross sales in New York, which comprised approximately one percent of Utah Medical’s total sales in each of those years. During this period, Utah Medical’s IUPC was sold to about 40 hospitals in New York.
Utah Medical has a nationwide toll-free “800” telephone number and makes information available to residents of any state over the Internet. Utah Medical also has a representative in Connecticut who occasionally travels to New York to meet with a distributor and with customers, but does not take orders from customers for sales of Utah Medical products. Utah Medical has also sent letters to hospitals in New York regarding its IUPC device. In addition, Utah Medical receives customer complaints from and offers training to its customers, including those in New York.
Utah Medical sent two letters, the first dated June 7, 1996 and the second dated June 14, 1996, to Graphic Controls in New York alleging that Graphic Controls’s IUPC device infringed the ’822 patent and that Graphic Controls had made false and misleading representations while promoting its competing product and requesting it to cease such activities. Graphic Controls sent Utah Medical a letter on June 10, 1996 accusing Utah Medical sales representatives of false advertising. A Graphic Controls representative asserted that she received phone calls from Utah Medical sales representatives regarding this June 10 letter from Graphic Controls. Shortly thereafter, Graphic Controls filed suit in the United States District Court for the Western District of New York, seeking declaratory judgment that (a) the ’822 patent is invalid or that the patent is not infringed by Graphic Controls and (b) Graphic Controls has not committed acts of unfair competition against Utah Medical.
The district court found that it had no personal jurisdiction over Utah Medical under sections 301 or 302(a)(1) of the New York long-arm statute.
See Graphic Controls Corp.,
DISCUSSION
A. Standard of Review
We review
de novo
a district court’s decision regarding whether it has pei'sonal jurisdiction over a defendant.
See Genetic Implant Sys., Inc. v. Core-Vent Corp.,
*1385 B. General Jurisdiction
As a preliminary matter, we note that Graphic Controls seeks to preserve its arguments regarding general jurisdiction under section 301 through a footnote in its brief which states that “[t]he argument presented in this Appeal Brief focuses on the ‘specific’ prong of the [New York long-arm] statute. Graphic Controls’s arguments concerning jurisdiction under the ‘general’ prong are presented [in the appendix]. Graphic Controls hereby reiterates and incorporates the arguments found in the [appendix].” Utah Medical responds to this footnote with a footnote in its brief that incorporates arguments from the appendix as well. Under the Federal Rules of Appellate Procedure, arguments may not be properly raised by incorporating them by reference from the appendix rather than discussing them in the brief. Rule 28(a)(6) provides:
[t]he argument [in the appellant’s brief] must contain the contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on. The argument must also include for each issue a concise statement of the applicable standard of review....
Fed. R.App. P. 28(a)(6). Rule 28(b) provides that the appellee’s brief conform to the requirements of Rule 28(a)(6). See Fed. R.App. P. 28(b). In addition, Rule 28(g) provides a page limit for the briefs. See Fed. R.App. P. 28(g). The practice of incorporating arguments by reference from the appendix undermines these explicit rules. The Appellant in this ease has not properly raised the issue of general jurisdiction before this court and therefore we cannot and do not render a decision on this issue.
C. Specific Jurisdiction
As presented to us, the question on which this appeal turns is whether Federal Circuit law or New York and Second Circuit law applies to the determination of whether specific personal jurisdiction exists over Utah Medical. Graphic Controls asserts, and we agree, that it appears the district court relied on New York and Second Circuit caselaw to interpret the New York long-arm statute. Graphic Controls essentially argues that the Federal Circuit has held that its law applies to personal jurisdiction determinations in patent cases and therefore the district court should not have deferred to New York or Second Circuit interpretations of the New York long-arm statute. Although Graphic Controls concedes in its opening brief that New York courts and the Second Circuit have consistently interpreted the New York long-arm statute to not extend to the limit of due process, Graphic Controls requests us to disregard this caselaw and interpret the statute to reach to the full extent of due process. Utah Medical responds that the Federal Circuit only applies its own law to the interpretation of the right to due process of law guaranteed by the U.S. Constitution and not to the interpretation of state long-arm statutes. Utah Medical argues that, because the New York long-arm statute does not extend to the full extent of federal due process, the Federal Circuit should apply New York and Second Circuit law in interpreting the long-arm statute. We agree with Utah Medical.
Determining whether jurisdiction exists over an out-of-state defendant involves two inquiries: whether a forum state’s long-arm statute permits the assertion of jurisdiction
2
and whether assertion of personal jurisdiction violates federal due process.
See Genetic Implant Sys.,
In this case, Graphic Controls asserts specific jurisdiction under section 302(a)(1), which provides that jurisdiction exists where the defendant
“transacts any business within the state
or contracts anywhere to supply goods or services in the state”
3
and the cause of action arises from such acts. N.Y. Civ. Prac. § 302(a)(1) (McKinney 1990) (emphasis added). The New York courts, and therefore the Second Circuit, have held that the New York long-arm statute, and specifically section 302(a)(1), does not extend to the limit of federal due process.
See Beacon Enter., Inc. v. Menzies,
The second prong of this test requires a substantial nexus between the cause of action and the defendant’s contacts with New York.
See Philips Elec. N. Am. Corp. v. Maeser,
43 USPQ2d 1541, 1542-43,
Similarly in
Beacon,
the plaintiff, a New York corporation, sought a declaratory judgment that certain of its products did not infringe a California resident’s trademarks.
See Beacon,
Menzies’ shipments of goods into New York are irrelevant to [plaintiffj’s declaratory judgment action and [plaintiffj’s cause of action would exist regardless of whether Menzies’ products were sent to New York. The present controversy arose as a result of Menzies’ “cease and desist” letter, not her New York commercial activity.
Id. at 765. 4
Other eases have also interpreted the nexus requirement narrowly.
See McGowan,
With respect to Utah Medical’s alleged contacts with New York, none of them— other than the cease and desist letters— “gave rise” to Graphic Controls’s cause of action for purposes of the New York long-arm statute. Graphic Controls’s declaratory judgment action did not arise because Utah Medical was shipping its product to New York, had a distributor soliciting sales in New York, or had a representative that occasionally visited New York. Graphic Controls’s declaratory judgment action arose because Utah Medical claimed Graphic Controls’s IUPC infringed the ’822 patent and threatened suit. It was the two cease and desist letters that gave rise to the declaratory judgment cause of action.
These letters, however, are of insufficient quality and degree to be considered the “transaction of business” under New York law because they do not constitute the purposeful availment by Utah Medical of the benefits and protections of New York laws.
See Philips,
43 USPQ2d at .1542 (holding that cease and desist letters and phone calls did not constitute purposeful availment of New York laws);
Beacon,
We have considered the parties’ other arguments and find that they are either unpersuasive or unnecessary for resolution of this appeal.
CONCLUSION
The district court was correct in holding that it did not have jurisdiction over Utah Medical. We therefore affirm the judgment of the district court dismissing Graphic Controls’s complaint against Utah Medical for lack of personal jurisdiction.
AFFIRMED.
Notes
. The district court noted that, because the parties had not conducted discovery on the jurisdictional issue, Graphic Controls only needed to make a prima facie showing that Utah Medical was subject- to personal jurisdiction jn New York.
See Graphic Controls Corp.,
. Federal courts apply the relevant state statute when determining whether a federal court, sitting in a particular case, has personal jurisdiction over a defendant, even when the cause of action is purely federal.
See
Fed.R.Civ.P. 4(k). In two of our prior cases,
Akro
and
Beverly Hills,
we stated that Federal Rule of Civil Procedure 4(e) -(f) supported this proposition.
See Akro,
. Graphic Controls focuses its arguments exclusively on the "transacts business” portion of section 302(a)(1), and therefore we do not address the second part of this statutory provision in this opinion.
. In
Beacon,
the court expressed doubts as to whether long-arm jurisdiction should be asserted in declaratory judgment actions.
See Beacon,