                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-1033



GEORGE A. BROOKS; BROOKS INDUSTRIES, INC.,

                                           Plaintiffs - Appellants,

          versus


MOTSENBOCKER ADVANCED DEVELOPMENTS, INC.;
GREGG A. MOTSENBOCKER; SKIP A. MOTSENBOCKER,

                                             Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:06-cv-01024-AW)


Submitted:   July 20, 2007                 Decided:   August 2, 2007


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Michael J. Trevelline, Washington, D.C., for Appellants. Patrick D.
Webb, WEBB & CAREY, San Diego, California; Aaron J. Snow, BOIES,
SCHILLER & FLEXNER, LLP, Washington, D.C., for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            George A. Brooks (“Brooks”) and Brooks Industries, Inc.

(collectively         “Plaintiffs”)         sued    Motsenbocker            Advanced

Developments,        Inc.   (“Motsenbocker”),       Gregg       A.     Motsenbocker

(“Gregg”), and Skip Motsenbocker (collectively “Defendants”), for

breach   of    contract,     misrepresentation,           and     related     claims.

Plaintiffs     are    located    in    Maryland     and     the      Defendants   in

California.     Brooks alleged by affidavit that Gregg traveled to

Maryland and made him the exclusive nationwide sales representative

for some of its products.             Under the agreement reached, Brooks

alleged he was to receive a percentage of sales of the products as

a commission.     Defendants moved to dismiss the action for lack of

personal jurisdiction under Fed. R. Civ. P. 12(b)(2).                    Defendants

supported     their    motion   with    a   sworn   declaration        from    Gregg,

President of Motsenbocker, specifically denying that he had ever

traveled to Maryland to meet with Brooks or had agreed to make him

a sales representative for its products.

            The district court held a hearing on the motion and

listened to the arguments of counsel; the hearing, however, did not

include any witness testimony or otherwise resolve the factual

dispute between Brooks and Gregg regarding the disputed meeting and

agreement reached while in Maryland.                Thereafter, the district

court issued a written memorandum granting Defendants’ motion to

dismiss and finding that Brooks failed to prove the existence of


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personal jurisdiction by a preponderance of the evidence.           Brooks

timely appeals. For the reasons that follow, we vacate and remand.

          When a defendant files a motion to dismiss under Fed. R.

Civ. P. 12(b)(2), challenging the court’s personal jurisdiction,

the question is one for the judge and the plaintiff, as the party

invoking the court’s jurisdiction bears the burden of establishing

the necessary jurisdictional facts, e.g. the existence of minimum

contacts between the defendant and the forum state.              Combs v.

Bakker, 886 F.2d 673, 676 (4th Cir. 1989); see Myland Labs.,

Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993).            Where the

jurisdictional facts are disputed, however, the court may either

resolve the issue in a separate evidentiary hearing or defer ruling

pending receipt at trial of evidence relevant to jurisdiction.

Combs, 886 F.2d at 676.    If the court rules on the basis of the

motion papers alone, the plaintiff need only make a prima facie

showing of a sufficient jurisdictional basis.       Id.     The court, in

deciding whether a plaintiff has met this burden, must construe all

relevant pleading allegations in the light most favorable to the

plaintiff,   assume   credibility,   and    draw   the    most   favorable

inferences for the existence of jurisdiction. Id.; Wolf v. Richmond

County Hosp. Auth., 745 F.2d 904, 908 (4th Cir. 1984).

          Here, the district court ruled only on the papers before

it, but required Brooks to prove jurisdiction by a preponderance of

the evidence in violation of Combs.        See Combs, 886 F.2d at 676.


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Moreover,    summary    disposition   should    not    be   made   based   on

conflicting affidavits.      See Davis v. Zahradnick, 600 F.2d 458, 460

(4th Cir. 1979) (summary judgment is inappropriate when affidavits

present conflicting facts requiring credibility determinations).

Rather,     because    the   jurisdictional    facts    were   disputed    by

conflicting sworn documents, the court should have either resolved

the issue in a separate evidentiary hearing or deferred ruling

pending receipt at trial of evidence relevant to jurisdiction.

Combs, 886 F.2d at 676.

            Accordingly, we vacate the district court’s order granting

Defendants’ motion to dismiss under Rule 12(b)(2) and remand for

proceedings consistent with this opinion. We decline to address the

other issues raised on appeal and dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                                                       VACATED AND REMANDED




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