The opinion of the court was delivered by: J. CURTIS JOYNER
This is a breach of contract action brought under diversity jurisdiction in which defendants have moved to dismiss plaintiff's complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. In the alternative, defendants ask the Court to dismiss the case for lack of proper venue under Rule 12(b)(3), or to transfer it to the District of New Jersey, Newark Division, pursuant to 28 U.S.C.A. §§ 1404(a), 1631 (West 1994). For the following reasons, this Court concludes that it cannot take personal jurisdiction over either defendant. In the interests of justice, however, defendants' motion to dismiss the complaint will be denied and its motion to transfer will be granted. Given our disposition, we need not address the defendant's contention that this Court is an improper venue for this action.
The plaintiff in this case is James Romann, a Pennsylvania resident who worked as a commissioned salesman for the defendant Geissenberger Manufacturing Corporation (GMC) until he was fired in April of 1994. GMC is a New Jersey corporation that operates under the trade name of The Robert Group. Defendant Leonard Geissenberger, a New Jersey resident, is GMC's president and chief executive officer and a New Jersey resident. Mr. Romann's complaint alleges that GMC failed to pay him more than $ 50,000 in sales commissions, and in the process, GMC not only breached an oral contract it had with Mr. Romann, but also violated Pennsylvania's Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §§ 260.1-301 (1994). Mr. Romann also requests an order declaring a post-employment no-compete agreement void on various grounds.
The defendants respond by arguing that this Court cannot properly exercise its personal jurisdiction under the given circumstances. Mr. Geissenberger argues he has no contacts with Pennsylvania, while GMC contends that, although it is qualified to do business under Pennsylvania law, it has had only de minimus contacts with Pennsylvania, does relatively little business in the commonwealth, and maintains no offices or facilities here. In an affidavit, Mr. Geissenberger avers that between two and four percent of GMC's sales, and ten percent of Mr. Romann's sales, were made to Pennsylvania customers. He also states that Mr. Romann had an office at the GMC facilities in New Jersey, that he received telephone calls there in person and by voice mail, and that Mr. Romann's paychecks and expense reimbursements were generated from New Jersey.
A. Rule 12(b)(2) Standard
A court must analyze the plaintiff's allegations drawing all reasonable inferences in the plaintiff's favor when reviewing a Rule 12(b)(2) motion. Bucks County Playhouse v. Bradshaw, 577 F. Supp. 1203, 1206 (E.D. Pa. 1983) (citation omitted). However, once the plaintiff's assertion of personal jurisdiction has been challenged, he bears the burden of demonstrating a jurisdictional predicate by competent proof. Id. (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936)). In other words, the plaintiff must prove with "reasonable particularity that sufficient contacts to support jurisdiction exist between the defendant and the forum state." Massachusetts Sch. of Law v. American Bar Ass'n., 846 F. Supp. 374, 377 (E.D. Pa. 1994). In the instant proceeding, therefore, because defendants have interposed a jurisdictional challenge, Mr. Romann must bring forward sufficient evidence to allow this Court to exercise personal jurisdiction over these defendants.
A federal district court must apply the laws of the state in which it sits in determining whether it may properly exercise personal jurisdiction over a non-resident defendant. Bucks County Playhouse, 577 F. Supp. at 1206 (citation omitted). Under Pennsylvania law, a state court may exercise personal jurisdiction pursuant to either the provision on general personal jurisdiction, 42 Pa. Cons. Stat. Ann. § 5301 (1994) ("section 5301"), or the provision on specific personal jurisdiction, 42 Pa. Cons. Stat. Ann. § 5322 (1994) ("section 5322"). Jaffe v. Julien, 754 F. Supp. 49, 52 (E.D. Pa. 1991). These so-called "long-arm statutes" apply only to the extent permitted by the Due Process clause of the Fourteenth Amendment. Fields v. Ramada Inn, Inc., 816 F. Supp. 1033, 1035 (E.D. Pa. 1993); 42 Pa. Cons. Stat. Ann. §§ 5308, 5322(b). Thus, "the court's exercise of personal jurisdiction over . . . nonresident defendants is proper so long as there is no violation of due process." Fields, 816 F. Supp. at 1035-36 (citing Mellon Bank PSFS, N.A. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992)).
1. General Personal Jurisdiction
The Pennsylvania provision on general personal jurisdiction provides in relevant part:
(a) General Rule. -- The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(i) Presence in this Commonwealth at the time when process is served.
(ii) Domicile in this Commonwealth at the time when ...