Bredberg v. Soil Science Society of America
ORDER: Granting Motion to Dismiss Case for Lack of Jurisdiction 9 . Signed on 8/5/2011 by U.S. District Judge Michael R. Hogan. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
A.J. BREDBERG, an individual,
Civil No. ll-6072-HO
R DE R
SOIL SCIENCE SOCIETY OF AMERICA,
a Wisconsin Corporation,
Plaintiff brings this action alleging breach of contract,
breach of the covenant of good faith and fair dealing, negligent
misrepresentation, tortious interference with economic relations,
Plaintiff is a member of defendant organization, the
Soil Science Society of America.
service to its members,
The defendant organization, as a
regarding the organization's code of ethics.
The claims in this
case arise out of plaintiff's ethics complaint against a fellow
member of defendant organization.
incorrectly determining hydric soil conditions at a property in
defendant that plaintiff alleges was designed to adversely affect
plaintiff's reputation and credibility by falsely portraying him as
a fraud and a liar.
Plaintiff contends that defendant failed to
determine if his complaint warranted an investigation, failed to
require Verble to respond in a timely manner,
and failed to
determine that Verble had violated the code of ethics, among other
Plaintiff, a Washington resident, originally filed this
action in Washington,
but the case was dismissed for lack of
jurisdiction over defendant, a Wisconsin corporation.
Defendant now moves to dismiss contending this court lacks
jurisdiction over it.
There is no applicable federal statute governing personal
jurisdiction in this
law of Oregon
Dole Food Co. v. Watts, 303 F.3d 1104, 1108
(9 th Cir.
law of the
State of Oregon permits
exercise jurisdiction over any party so long as "prosecution of the
action against a defendant in this state is not inconsistent with
the Constitution of this state or the Constitution of the United
States." Or.R.Civ.P. 4 L.
Thus, the long-arm statute of the State
of Oregon is coextensive with the limits of federal due process.
Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9 th Cir.
McGlinchy v. Shell Chern. Co., 845 F.2d 802, 817 n.
10 (9 th Cir. 1988).
Plaintiff need only make a prima facie showing
of jurisdictional facts.
the burden of demonstrating personal
Sher v. Johnson, 911 F.2d 1357, 1361 (9 th
In such cases,
court only inquires whether
plaintiff's pleadings and affidavits make a prima facie showing of
Caruth v. Int'l Psychoanalytical Ass'n, 59
F.3d 126, 128 (9 th Cir. 1995').
Although plaintiff cannot simply
rest on the bare allegations of his complaint, Amba Marketing
Systems, Inc. v. Jobar Int'L Inc., 551 F.2d 784, 787
(9 th Cir.
1977), uncontroverted allegations in the complaint must be taken as
94 F.3d 586, 588
(9 th Cir. 1996).
When the activities of a defendant within the State of Oregon
are "continuous and systematic" or "substantial," a court may
exercise general personal jurisdiction over that defendant without
offending notions of due process. See Lake V. Lake, 817 F.2d 1416,
l420 (9 th Cir. 1987).
The genesis of this case is the development of some land in
specialist with the State of Oregon's Division of State lands,
conducted a soil
3 - ORDER
study and determined that
suitable for development.
Three years later, plaintiff instituted
the ethics complaint with defendant against Verble.
Defendant convened a committee to review the complaint and
supporting materials, request additional materials, reviewed the
credentials for those involved and reached a determination.
committee member visited the land in Oregon.
same with Verble's complaint.
Defendant did the
Ultimately, the committee determined
committed violations and required plaintiff to take continuing
education courses in ethics in order to maintain his credentials
Defendant is devoted to the promotion of the soil sciences and
maintains its offices in Wisconsin.
Defendant has a certification
program whereby individuals like plaintiff contact defendant in
Wisconsin to request a test.
Defendant notifies someone in the
applicant's geographic area to proctor the test and the tests are
sent to Wisconsin for grading.
Neither members nor those certified
by defendant are authorized to act on behalf of defendant.
Defendant has not held any meetings or conventions in Oregon
for at least the last ten years.
Plaintiff points to an "attempt"
by defendant to work with an Oregon Department of Land conservation
in promulgating rules regarding soil assessment, an invitation to
a new program manager for defendant to attend an Oregon Society of
4 - ORDER
conference in Oregon in 2011
(as well as
invitation to publish an article in an Oregon newsletter)
evidence of substantial contacts with Oregon.
with Oregon as well as solicitation to Oregon residents to join are
thousands of members world-wide and, as noted, members have no
authority to act on behalf of defendant.
Cf. Graziose v. American
(occasional conference attendance, public service collaberation and
contacts with the State of Oregon for the court to exercise general
jurisdiction over it.
Therefore, the court must examine whether
it may exercise limited personal jurisdiction over defendant.
Oregon courts use a three-part test for determining when
limited jurisdiction may be exercised over defendants:
nonresident defendants must have purposefully availed themselves of
the privilege of
affirmative act or conduct; 2) plaintiff's claims must arise out of
or result from the defendants' forum-related acti vi ties; and 3)
Marquez, 942 F.2d 617, 620-21 (9 th
5 - ORDER
Purposeful availment analysis examines whether defendant's
contacts with the forum are attributable to its actions or are
solely the actions of plaintiff.
In order to have purposefully
availed itself of conducting activities in the forum, defendant
must have performed some type of affirmative conduct which allows
or promotes the transaction of business within the forum state.
Roth, 942 F.2d at 621.
In the case of a tort claim, exercise of
jurisdiction over a defendant whose only contact with the forum
state is the purposeful direction of a foreign act having effect in
Reimbursement Fund, 784 F.2d 1392, 1397 (9 th Cir. 1986).
To meet the effects test, defendant must have (1) committed an
intentional act, which was (2) expressly aimed at the forum state,
and (3) caused harm, the brunt of which is suffered and which the
defendants know is likely to be suffered in the forum state.
141 F.3d 1316, 1321 (9 th Cir.
Express aiming is met when defendant is alleged to have
engaged in wrongful conduct targeted at a plaintiff whom the
defendants know to be a resident of the forum state.
Masters. Inc. v. Augusta National, Inc., 223 F.3d 1082, 1087 (9 th
defendant will not be haled into a jurisdiction solely as a result
6 - ORDER
of "random," "fortuitous," or "attenuated" contacts or of the
See Burger King v. Rudzewicz, 471 u.S. 462, 475 (1985).
Here, plaintiff is a Washington resident.
is involved is the
The only way Oregon
that plaintiff initiated a complaint
against an Oregon resident.
Defendant's involvement in the dispute
was limited to a determination of whether its code of conduct had
been violated and did not involve any assessment of whether the
land in Oregon was fit for development.
could be harmed in Oregon, in that he has at least one client in
Plaintiff initiated the contact and invited whatever limited effect
defendant's actions may have had in Oregon, but the brunt of the
in Washington where
defendant knew the effects would be suffered in Oregon to the
extent any harm has been suffered in Oregon.
The contact with
Oregon is attenuated at best.
Claim Arising from Forum-Related Activities
As noted above,
plaintiff fails to show that the alleged
activities related to this case took place in Wisconsin.
7 - ORDER
conducted no investigation in Oregon.
The location of the acts
that allegedly give rise to an ethics violation under defendant's
code plays no role in the determination of whether such violation
At its heart, plaintiff's complaint attacks defendant's
failure to abide by its own rules, and that alleged failure did not
take place in Oregon.
Accordingly, plaintiff fails to demonstrate
this prong as well.
at least in part,
arise out of these forum-related
activities, the burden shifts to defendant to present a "compelling
942 F. 2d at 625.
determine whether the
The court weighs seven
interjection into the affairs of the forum state; (2) the burden on
the extent of conflict with the sovereignty of
the defendant's home state;
resolution of the dispute;
convenient and effective
8 - ORDER
the interest of the forum in
(6) the interest of the plaintiff in
the existence of an
alternative forum. See Roth, 942 F.2d at 623; Sinatra v. National
Enquirer, Inc., 854 F.2d 1191, 1198-99 (9 th Cir. 1988).
As noted above, plaintiff instigated the actions that had an
attenuated impact in Oregon.
Given that not even plaintiff is an
Oregon resident, the burden to require defendant to litigate in
Oregon for its actions in Wisconsin is substantial.
little to no
interest in adjudicating this
application of rules developed and applied in Wisconsin.
defendant's involvement in Wisconsin, judicial resolution in that
state is more efficient especially in l:'ght of the fact
neither party resides in Oregon.
Finally, venue is appropriate in
Accordingly, defendant's motion to dismiss for lack of
jurisdiction is granted.
For the reasons stated above, defendant's motion to dismiss
(#9) is granted and this action is dismissed.
9 - ORDER
day of August, 2011.
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