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iProjects, LLC v. Surespan Wind Energy Services Ltd.

United States District Court, D. Oregon

March 16, 2017

iPROJECTS, LLC, an Oregon Limited Liability Company, Plaintiff,
SURESPAN WIND ENERGY SERVICES LTD., a Canadian Limited Company Defendant.

          Paul W. Conable and Alexander M. Tinker, Tonkon Torp LLP, Of Attorneys for Plaintiff.

          D. Gary Christensen, Alexander M. Naito, and Iván Resendiz Gutierrez, Miller Nash Graham & Dunn LLP, Of Attorneys for Defendant.


          Michael H. Simon, District Judge.

         Plaintiff, 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.


         When a 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)).


         In 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 States.

         Hiebert 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.

         Hart 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 meeting.

         On May 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 Canoe project.

         On May 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.

         After 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.

         After 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 Agreement”).

         Both 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 Oregon, USA.

ECF 14-6 at 6; ECF 14-9 at 6.


         Unless 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 ...

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