The opinion of the court was delivered by: YVETTE KANE, District Judge
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.
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.
This Court has original jurisdiction because the parties are
diverse and the amount in controversy exceeds $75,000.
28 U.S.C. § 1332 (2004).
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 ...