United States District Court, D. Oregon
iPROJECTS, LLC, an Oregon Limited Liability Company, Plaintiff,
SURESPAN WIND ENERGY SERVICES LTD., a Canadian Limited Company Defendant.
W. Conable and Alexander M. Tinker, Tonkon Torp LLP, Of
Attorneys for Plaintiff.
Gary Christensen, Alexander M. Naito, and Iván
Resendiz Gutierrez, Miller Nash Graham & Dunn LLP, Of
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, District Judge.
iProjects, LLC (“iProjects”), is an Oregon
limited liability company based in Portland. iProjects
provides consulting services to contractors. Defendant,
Surespan Wind Energy Services, Ltd. (“Surespan”),
is a Canadian limited company based in North Vancouver,
British Columbia, Canada. iProjects brings this lawsuit
against Surespan alleging claims of breach of contract,
breach of the implied covenant of good faith and fair
dealing, and unjust enrichment. Surespan moves to dismiss for
lack of personal jurisdiction, pursuant to Rule 12(b)(2) of
the Federal Rules of Civil Procedure. For the reasons stated
below, Surespan's motion to dismiss is denied.
motion to dismiss for lack of personal jurisdiction is
brought under Rule 12(b)(2), the plaintiff bears the burden
of demonstrating that the court's exercise of
jurisdiction is proper. See Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citing
Scher v. Johnson, 911 F.2d 1357, 1361 (9th Cir.
1990)). When the court's determination is based on
written materials rather than an evidentiary hearing,
“the plaintiff need only make a prima facie showing of
jurisdictional facts.” Id. at 800 (quotation
marks and citation omitted). In resolving the motion on
written materials, the court may “only inquire into
whether the plaintiff's pleadings and affidavits make a
prima facie showing of personal jurisdiction.”
Id. (quotation marks omitted) (quoting Caruth v.
Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128
(9th Cir. 1995)). A plaintiff cannot rest solely on the bare
allegations of its complaint, but uncontroverted allegations
in the complaint must be taken as true. Id.
Conflicts between the parties over statements contained in
affidavits must be resolved in the plaintiff's favor.
Id. (citing Am. Tel. & Tel. Co. v. Compagnie
Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) and
Bancroft & Masters, Inc. v. Augusta Nat'l Inc.,
223 F.3d 1082, 1087 (9th Cir. 2000)).
February 2015, Jordan Hiebert, Surespan's Divisional
Manager of Operations & Maintenance, approached David Hart,
at the American Wind Energy Association's Wind Power
Finance and Investment Summit in San Diego, California.
Hiebert asked whether Hart was interested in potentially
assisting Surespan with setting up operations in the United
next met with Hart on April 16, 2015, in Portland, Oregon.
Also attending this meeting from Surespan was Surespan's
Chief Operations Officer, Jason Dashney. At that meeting,
Hiebert and Dashney told Hart that Surespan had five projects
that had failed or were failing due to operational
mismanagement. Included among these projects were a wind
turbine construction project in Nova Scotia, Canada (the
“South Canoe Project”) and a wind turbine
construction project in Ontario, Canada (the “Bow Lake
Project”). Hiebert and Dashney asked Hart whether he
was available as a consultant to help on Surespan's
projects. Hiebert and Dashney also asked Hart if he would
develop a business plan for Surespan's operations in the
United States, which would be based out of an office in
Portland, Oregon. Hiebert and Dashney also asked Hart to help
with staffing Surespan's U.S. operations. Hart agreed to
help Surespan with planning and staffing Surespan's
operations and to provide a business plan outline for
Surespan's potential U.S. operations.
submitted the business plan outline to Surespan.
Surespan's President, Nigel Bester, then invited Hart to
North Vancouver, British Columbia for an interview and have
Hart review Surespan's projects that were complete or
underway. On April 28, 2015, Hart travelled to Surespan's
offices in Canada, and Surespan paid for Hart's travel
expenses. Hart and Bester discussed Surespan's Bow Lake
and South Canoe projects. No agreement was reached at that
1, 2015, Hart provided to Bester, Dashney, and Hiebert a
preliminary outline for launching Surespan's U.S. office
and operations. On May 5, 2015, Hart sent Hiebert examples of
the proprietary analysis tools that Hart uses to assess the
feasibility and risk of renewable energy projects. On May 16,
2015, Hart sent Surespan an invoice from
“iProjects” for services related to the South
17, 2015, Hart formally organized iProjects and registered it
with the Oregon Secretary of State. Five days later, on May
22, 2015, Hart sent Surespan a draft South Canoe Consulting
Agreement between Surespan and iProjects. Surespan and
iProjects entered into the South Canoe Consulting Agreement,
effective May 26, 2015 (“South Canoe Agreement”).
Thereafter, iProjects sent all invoices to Surespan from
Oregon, and Surespan made payments to iProjects in Oregon.
Surespan and iProjects entered into the South Canoe
Agreement, Surespan's Bester asked Hart to visit
Surespan's Bow Lake project site to assess the state of
the construction site and to assess Surespan's
performance on the project. On June 7, 2015, Hart visited the
Bow Lake site. On June 13, 2015, iProjects invoiced Surespan
for services and travel expenses related to that visit.
Hart visited the Bow Lake site, Surespan's Hiebert
visited Hart in Portland, Oregon. Hiebert told Hart that
Surespan wanted Hart to take on the Bow Lake Project as well.
Through telephone calls and email, iProjects and Surespan
negotiated and entered into the Bow Lake Consulting
Agreement, effective June 19, 2015 (“Bow Lake
the South Canoe Agreement and the Bow Lake Agreement provide,
at Section 3.1(b):
The Consultant acknowledges that the Services are performed
in the USA, with occasional visits to the Company's
offices in Canada for the purpose of meetings. The Consultant
is responsible for all sales and income taxes and duties
payable in respect of the fees or the Services, and
indemnifies the Company from any liability in respect of
sales and income taxes and duties.
ECF 14-6 at 2; ECF 14-9 at 2. These provisions were included
at the request of Surespan for tax or other financial reasons
to confirm that iProjects was not performing services in
Canada. In addition, both the South Canoe Agreement and the
Bow Lake Agreement provide, at Section 7.11:
Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
ECF 14-6 at 6; ECF 14-9 at 6.
a federal statute governs personal jurisdiction, a district
court applies the law of the forum state. See Boschetto
v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) (citing
Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316,
1320 (9th Cir. 1998)). Oregon's long-arm statute is
co-extensive with constitutional standards. Gray & Co. v.
Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990)
(citing Or. R. Civ. P. 4(L)); Oregon ex rel.
HydraulicServocontrols Corp. v. Dale, 657 P.2d
211, 212 (Or. 1982). Thus, this Court need only determine
whether its exercise of personal ...