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SILVA v. MARYLAND SCREEN PRINTERS

September 15, 2005.

CHRISTOPHER R. SILVA, Plaintiff
v.
MARYLAND SCREEN PRINTERS, INC., Defendant.



The opinion of the court was delivered by: YVETTE KANE, District Judge

MEMORANDUM AND ORDER

Before this Court are motions to dismiss for lack of personal jurisdiction and improper venue filed by Defendant Maryland Screen Printers, Inc. (Doc. No. 3). The motions have been fully briefed and are ripe for disposition. For the reasons discussed below, the motions will be denied.

I. BACKGROUND

  Plaintiff initiated this civil action with a complaint under the Maryland Wage Payment Collection Law, MD. CODE ANN., Labor and Employment §§ 3-501 et seq., or alternatively under common law for wages, compensation, and damages arising from his former employment with Defendant. (Doc. No. 1).

  Plaintiff is a resident of Camp Hill, Pennsylvania. (Doc. No. 1). Defendant is a Maryland corporation in the business of selling screen-printed and embroidered t-shirts. (Doc. No. 9). Plaintiff was hired by Defendant in December, 1997, for a sales position and was paid on a commission basis. (Doc. No. 1). Plaintiff typically commuted to and worked out of an office in Baltimore, Maryland; however, Plaintiff used his Pennsylvania residence as a home office approximately four days per month. (Docs. No. 4, and 10, part 2). Each of Plaintiff's pay-checks were issued and picked up in Maryland. (Doc. No. 4).

  Although Plaintiff's primary customer was located in New York, Plaintiff solicited sales on behalf of Defendant in the Commonwealth of Pennsylvania.*fn1 (Doc. No. 10). Plaintiff was the principal contact for five Pennsylvania customers with annual sales of approximately $29,000.*fn2 (Docs. No. 16 and 10, part 2). Roughly 3% of Plaintiff's sales were from customers in the State of Pennsylvania (Doc. No. 16), including but not limited to: Berks Regional Tennis Association which is located in Reading, Pennsylvania; and United States Tennis Association Middle States Section which is located in Montgomery County, Pennsylvania. (Doc. No. 9).*fn3

  Plaintiff disputed the basis for Defendant's assessment of certain costs, charges, or expenses against his commission. (Doc. No. 1). Plaintiff has alleged that Defendant refused to verify the actual expenses and costs incurred. Id. Among Plaintiff's disputed commissions were sales to Berks Regional Tennis Association and United States Tennis Association Middle States Section. (Doc. No. 10, part 2). On September 11, 2003, Plaintiff's employment with Defendant was terminated. (Doc. No. 1).

  Plaintiff filed a complaint with this Court on September 13, 2004, against Defendant for non-payment of compensation under theories of breach of contract and violation of Maryland statutory law. (Doc. No. 1). On October 13, 2004, Defendant filed motions to dismiss for lack of in personam jurisdiction and improper venue pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure. (Doc. No. 3). Plaintiff filed a brief in opposition to Defendant's motion along with a Plaintiff's sworn affidavit on November 1, 2004. (Doc. No. 9 and 10). Defendant filed its reply brief on November 16, 2004. (Doc. No. 16).

  II. JURISDICTION

  This Court has original jurisdiction because the parties are diverse and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332 (2004).

  III. STANDARD OF REVIEW

  Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to bring a motion challenging the court's right to exercise personal jurisdiction over them. Fed.R.Civ.P. 12(b)(2). The defendant bears the initial burden of raising a lack of personal jurisdiction. Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992). Once the issue is raised, the burden shifts to the plaintiff to establish that the exercise of personal jurisdiction over the defendant is proper. Id. On a motion to dismiss pursuant to Rule 12(b)(2), the plaintiff must "establish[] jurisdictional facts through sworn affidavits or other competent evidence." Time Share Vacation Club v. Atl. Resorts, 735 F.2d 61, 66 n. 9 (3d Cir. 1984) "[A]t no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant's Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction." Id. The plaintiff need only make a prima facie showing of personal jurisdiction if there has been limited discovery or no evidentiary hearing. Carteret, 954 F.2d at 142. After a prima facie case has been made, Plaintiff must still eventually establish personal jurisdiction by a "preponderance of the evidence." Id.

  Rule 12(b)(3) of the Federal Rules of Civil Procedure allows a defendant to bring a motion to dismiss for improper venue pursuant to 28 U.S.C. § 1406(a) (2004). The burden of establishing improper venue rests with the defendant; in discharging this burden, a defendant must show that upon a proper balancing of all relevant factors, the "case would be better ...


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