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HARRIS v. TRANS UNION

March 22, 2002

MICHAEL W. HARRIS
V.
TRANS UNION, LLC, ET AL.



The opinion of the court was delivered by: Bartle, J.

MEMORANDUM

Plaintiff has brought this action under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. and has also alleged various state law claims against defendants Trans Union, LLC ("Trans Union") and TXU Electric & Gas ("TXU"). Before the court is the motion of defendant TXU to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure and for improper venue under Rule 12(b)(3).

I.

TXU, a Texas corporation, is in the business of providing retail electric service within the state of Texas. TXU has no offices, employees or bank accounts in Pennsylvania, is not authorized to do business in the Commonwealth, and does not sell goods or services here.

According to the Declaration of TXU Credit Services Supervisor Thomas Delaney, an account was opened in the name of Michael Harris on March 2, 1990 for electric service at 1102 Golf Course Road, Apartment 34, Copperas Cove, Texas. TXU no longer has the document which authorized the opening of this account. At the time the account was opened, TXU waived the deposit requirement because it was advised that Harris was in the United States Army, stationed at Ft. Hood. The TXU records show that the account for electric service remained open from March, 1990 through December 14, 1994, when it was terminated by a Brenda Harris who was Harris' ex-wife. At that time, Ms. Harris gave TXU a new address in New York. When TXU sent its final bill of $92.16 to that address, it was returned as undelivered, and the bill was never paid. On March 21, 1995, TXU reported the account delinquency to Trans Union, a credit reporting agency, at their Chicago, Illinois office.

In the affidavit attached to his response to TXU's motion to dismiss as well as in a supplemental affidavit, Harris states that he never lived at 1102 Golf Course Road and never maintained utility service there. Harris asserts that he disputed the TXU debt by contacting both Trans Union and TXU. These contacts included at least two telephone calls by Harris to TXU's offices in Texas. Based on its telephone records, it is TXU's position that Harris only called to dispute the bill on one occasion, March 30, 2001.

In both October, 1999 and January, 2001, Trans Union sent to TXU its Consumer Dispute Verification form ("CDV") in order to verify the amount Harris owed. The forms contained Harris' name, address and social security number and described the debt. The instructions on the CDV forms requested TXU to "please check the `same' box for each identification item appearing on the CDV which is identical to your records; or provide differing information in the shaded area." TXU Analyst Eddie Huff completed, signed and dated both forms and returned them, as requested, to Trans Union's offices in Pennsylvania. Each completed form contained three check marks which confirmed Harris' name and his social security number and verified the debt as reported. However, TXU left blank the boxes seeking verification of Harris' previous and current Philadelphia addresses and did not provide any other address for Harris in the shaded area.

II.

A federal district court may assert personal jurisdiction over a nonresident defendant to the extent authorized by the law of that state in which the action is brought, consistent with the demands of the Constitution. See Provident Nat'l Bank v. Calif. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 436 (3d Cir. 1987) (citing Fed.R.Civ.P. 4(e)). Pennsylvania law permits courts to "exercise personal jurisdiction over nonresident defendants to the constitutional limits of the due process clause of the fourteenth amendment." Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992) (citations omitted); see also 42 Pa. Cons. Stat. Ann. § 5322(b). Furthermore, the Pennsylvania long-arm statute specifically provides for personal jurisdiction over a person "[c]ausing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth." 42 Pa. Cons. Stat. Ann. § 5322(a)(4).

Once a jurisdictional issue has been raised, the plaintiff bears the burden of establishing with reasonable particularity contacts sufficient to support the court's exercise of personal jurisdiction. See Provident Nat'l Bank, 819 F.2d at 437. General averments in an unverified complaint or response without the support of "sworn affidavits or other competent evidence" are insufficient to establish jurisdictional facts. Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984). Otherwise, for the purposes of this motion, we must accept all of the substantive allegations in Harris' complaint as true and construe disputed facts related to those claims in his favor. Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998); Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 142 n. 1 (3d Cir. 1992).

Harris contends that TXU is subject to specific personal jurisdiction within Pennsylvania. "Specific personal jurisdiction exists when the defendant has `purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that "arise out of or related to" those activities.'" BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 259 (3d Cir. 2000) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). For a court properly to exercise specific jurisdiction under the Due Process Clause, the plaintiff must satisfy a two-part test. See Imo Indus., 155 F.3d at 259. First, the plaintiff must demonstrate that the defendant had the constitutionally sufficient "minimum contacts" with the forum. Id.; see Burger King, 471 U.S. at 474. Second, the court, in its discretion, must determine that the exercise of specific jurisdiction is consistent with "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations omitted); see Imo Indus., 155 F.3d at 259.

A defendant may be said to have established "minimum contacts" if there is "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State," thus ensuring that "a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts." Burger King, 471 U.S. at 475 (citations omitted); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980)). The only actions taken by TXU which could be viewed as constituting purposeful availment "of the privilege of conducting activities within" Pennsylvania are the mailing to Trans Union of the two completed CDV forms in 1999 and 2001 which confirmed Harris' $92 debt to TXU and the one or two telephone conversations between Harris and TXU. Burger King, 471 U.S. at 475 (citations omitted).


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