The opinion of the court was delivered by: Bartle, J.
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
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
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).
Since Harris has asserted intentional tort claims against TXU, we must
consider the impact of the Supreme Court's decision in Calder v. Jones,
465 U.S. 783
(1984), on the minimum contact analysis. In Calder, the
plaintiff, an entertainer living and working in California, brought a
defamation action in a California state court against the National
Enquirer, one of its writers, and one of its editors for an article
accusing her of having difficulties with alcohol. The National Enquirer
had its largest circulation in that state. The individual defendants were
residents of Florida, the forum in which the article was researched,
written, reviewed, and ...