Bredberg v. Soil Science Society of America

Filing 26

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
EUGENE DIVISION
A.J. BREDBERG, an individual,
Plaintiff,

Civil No. ll-6072-HO

o

v.

R DE R

SOIL SCIENCE SOCIETY OF AMERICA,
a Wisconsin Corporation,
Defendant.
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,
invasion
distress.

of privacy,

and

intentional

infliction

of

emotional

Plaintiff is a member of defendant organization, the

Soil Science Society of America.
service to its members,

The defendant organization, as a

conducts

investigations

regarding the organization's code of ethics.

of complaints

The claims in this

case arise out of plaintiff's ethics complaint against a fellow
member of defendant organization.
Plaintiff

asserts

that

Kathy

Verble

was

involved

in

incorrectly determining hydric soil conditions at a property in
Lebanon,

Oregon.

Verble

asserted

a

counter

complaint

with

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
things.

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

diversity

case,

thus

the

law of Oregon

applies.

Dole Food Co. v. Watts, 303 F.3d 1104, 1108

(9 th Cir.

2002) .

The

court to

law of the

State of Oregon permits

a

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.

2 -

ORDER

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.
1990) .

Plaintiff bears

jurisdiction.

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.
Cir.

1990).

the burden of demonstrating personal

Sher v. Johnson, 911 F.2d 1357, 1361 (9 th

In such cases,

the

court only inquires whether

plaintiff's pleadings and affidavits make a prima facie showing of
personal jurisdiction.

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
true.

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
Lebanon,

Oregon

by

plaintiff's

client.

Verble,

a

wetland

specialist with the State of Oregon's Division of State lands,
conducted a soil

3 - ORDER

study and determined that

the

soil was

not

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.
that

Verble

committed

no

No

Defendant did the

Ultimately, the committee determined
violation,

but

that

plaintiff

had

committed violations and required plaintiff to take continuing
education courses in ethics in order to maintain his credentials
with defendant.
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
Soil Scientists

4 - ORDER

conference in Oregon in 2011

(as well as

an

invitation to publish an article in an Oregon newsletter)
evidence of substantial contacts with Oregon.

as

Defendant's contacts

with Oregon as well as solicitation to Oregon residents to join are
insufficient

to

create

general

jurisdiction.

Defendant

has

thousands of members world-wide and, as noted, members have no
authority to act on behalf of defendant.
Home

Products

Corp.,

161

F.Supp.2d

Cf. Graziose v. American

1149,

1153

(D.Nev.

2001)

(occasional conference attendance, public service collaberation and
lobby~ng

activities

jurisdiction) .

are

In this

insufficient

case,

to

the defendant

create
lacks

general
sufficient

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:

1)

the

nonresident defendants must have purposefully availed themselves of
the privilege of

conducting activities

in

the

forum by

some

affirmative act or conduct; 2) plaintiff's claims must arise out of
or result from the defendants' forum-related acti vi ties; and 3)
exercise

of

jurisdiction must

be

Marquez, 942 F.2d 617, 620-21 (9 th

5 - ORDER

reasonable.
Cir. 1991).

Roth

v.

Garcia

A.

Purposefully Availed
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
the

forum

state

is

proper.

Haisten

v.

Grass

Valley Medical

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.

See

141 F.3d 1316, 1321 (9 th Cir.
1998) .

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.

Bancroft &

Masters. Inc. v. Augusta National, Inc., 223 F.3d 1082, 1087 (9 th
Cir. 2000).
The

"purposeful

availment"

requirement

ensures

that

a

defendant will not be haled into a jurisdiction solely as a result

6 - ORDER

of "random," "fortuitous," or "attenuated" contacts or of the
"unilateral

activity

of

another

party

or

a

third

person.

See Burger King v. Rudzewicz, 471 u.S. 462, 475 (1985).
Here, plaintiff is a Washington resident.
is involved is the

fact

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.

Theoretically, plaintiff

could be harmed in Oregon, in that he has at least one client in
Oregon,

but

defendant

did

not

direct

its

action

to

Oregon.

Plaintiff initiated the contact and invited whatever limited effect
defendant's actions may have had in Oregon, but the brunt of the
effects,

if any,

resides.

must

Moreover,

be

felt

there

is

in Washington where
insufficient

plaintiff

demonstration

that

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.

B.

Claim Arising from Forum-Related Activities
As noted above,

improprieties

arose

plaintiff fails to show that the alleged
from

activities

in

Oregon.

Defendant's

activities related to this case took place in Wisconsin.
played

no

7 - ORDER

role

in

the

underlying

soil

tests

in

Defendant

Oregon,

and

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
occurred.

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.

C.

Reasonableness
Even

if

plaintiff

presents

defendants

purposefully

availed

conducting

activities

complaint,

at least in part,

in Oregon,

a

prima

itself
and

facie
of

that

case

the
the

that

privilege
claims

in

the
of
the

arise out of these forum-related

activities, the burden shifts to defendant to present a "compelling
case"

that

the

unreasonable.
factors

to

exercise

Roth,

of

personal

942 F. 2d at 625.

determine whether the

reasonable:

(1 )

the

extent

of

jurisdiction

be

The court weighs seven

exercise of
the

would

jurisdiction is

defendant's

purposeful

interjection into the affairs of the forum state; (2) the burden on
the defendant;

(3)

the extent of conflict with the sovereignty of

the defendant's home state;
adjudicating

the

dispute;

resolution of the dispute;
convenient and effective

8 - ORDER

(4)

(5)

the interest of the forum in
the

most

efficient

judicial

(6) the interest of the plaintiff in
relief;

and

(7)

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

Oregon has

dispute

involving

application of rules developed and applied in Wisconsin.
that

plaintiff

initiated

the

actions

in

dispute

by

Given
seeking

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.
Wisconsin.

that

Finally, venue is appropriate in

Accordingly, defendant's motion to dismiss for lack of

jurisdiction is granted.

CONCLUSION
For the reasons stated above, defendant's motion to dismiss
(#9) is granted and this action is dismissed.

DATED this

9 - ORDER

s.!

day of August, 2011.