Davidson's Masonry, Inc. v. Maryl Group Construction, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DAVIDSON’S MASONRY, INC., Case No. 6:25-cv-00359-MC

an Oregon corporation,

OPINION AND ORDER

Plaintiff,

v.

MARYL GROUP CONSTRUCTION, INC.,

a Hawaii corporation,

Defendant.

MCSHANE, Judge:

Plaintiff Davidson’s Masonry, Inc. brings this action against Defendant Maryl Group

Construction, Inc., asserting claims for breach of contract, promissory estoppel, and unjust

enrichment. Notice Remov. Ex. 2, at ¶¶ 7–18, ECF No. 1 (“Compl.”). Before the Court is

Defendant’s Motion to Dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(2). Def.’s Mot. Dismiss 1, ECF No. 8. Because Defendant lacks sufficient

minimum contacts with Oregon, the Court GRANTS the Motion.

BACKGROUND

Defendant is a general contractor headquartered in Hawaii, licensed to work in Hawaii,

and registered under the laws of Hawaii. Ogoshi Decl. ¶ 2, ECF No. 10. Defendant only works

on projects in Hawaii, has never held itself out as available to work outside of Hawaii, and only

hires subcontractors who themselves work in Hawaii. Id. at ¶¶ 2–4. Defendant has never worked

in Oregon and has no offices or employees in Oregon. Id. at ¶ 2. When Defendant has a potential

project, it often uses SmartBid to solicit bids from possible subcontractors. Kerkau Decl. ¶ 3,

ECF No. 9. SmartBid is a software bidding platform that distributes the project information to an

internal database of subcontractors based on trade, location, minority status, and other categories.

Id.; see also Haynes Decl. ¶ 27, Ex. 19, ECF No. 13.

Plaintiff is a mason contractor based and licensed in Oregon. Haynes Decl. ¶ 2. It

obtained a license to work in Hawaii in 2014 because “there were only two commercial Mason

Contractors in Hawaii” at the time. Id. at ¶¶ 3, 5; see also Haynes Decl. Ex. 1 at 1 (listing

Plaintiff’s “Business Address” on its licensure profile as “1001 Bishop St. Ste. 2685A, Honolulu,

HI, 96813). Since 2017, Plaintiff has received approximately 69 SmartBid invitations to bid on

Defendant’s projects, and Defendant sometimes called to inquire whether Plaintiff was planning

to bid. Haynes Decl. ¶¶ 6, 28–29.

In early 2021, Defendant was acting as the general contractor for a senior housing project

in Hilo, Hawaii (“Project”). Ogoshi Decl. ¶ 5. Defendant “sent out project information to

potential [concrete masonry unit] subcontractors via a general distribution to relevant

subcontractors in the SmartBid database.” Kerkau Decl. ¶ 4. Plaintiff received that invitation.

Haynes Decl. ¶ 8; Ex. 3. The email identified Plaintiff as “Davidson’s Masonry, Inc.

(Honolulu).” Haynes Decl. Ex. 4, at 1. Plaintiff responsively submitted a proposal for the Project,

initiating a course of negotiations that resulted in further invitations to re-bid, and at least 100

emails and phone calls between Plaintiff and Defendant. Haynes Decl. ¶¶ 9–10, 12. In its original

bid proposal, Plaintiff’s letterhead displayed its Oregon mailing address. See Haynes Decl. Ex. 4,

at 2. According to Defendant’s president, “Maryl Group considered [Plaintiff] for the Project

because [Plaintiff] held itself out as a subcontractor able and available to work on projects in

Hawaii.” Ogoshi Decl. ¶ 5.

On September 28, 2022, Defendant sent Plaintiff a letter of intent, stating that it intended

to award the subcontract to Plaintiff. Haynes Decl. ¶ 11; Ex. 6, at 1. The parties went back and

forth for months over revisions to a subcontractor agreement. Haynes Decl. ¶¶ 14–18. After

Plaintiff informed Defendant that it intended to use Oregon labor for the Project, however,

Defendant decided not to award the subcontract to Plaintiff, due to the precipitating costs and

complications. Id. at ¶ 14; Ogoshi Decl. ¶ 7; Kerkau Decl. ¶¶ 10–12. On December 1, 2022,

Defendant sent Plaintiff an email stating the following:

“Due to all the changes and requests that have been made, it has

become apparent that Davidson’s Masonry is no longer in line with

the project requirements.

If you can honor your price without the extra material adds and

labor to receive your own material and adhere to the requirements

of the project schedule and sequencing, then maybe there is

something that can be worked out, but at the moment, our two

goals do not align.”

Haynes Decl. Ex. 13.

On December 12, 2024, Plaintiff filed this action in Marion County Circuit Court,

asserting contract claims against Defendant related to the lost work opportunity. Defendant

removed to federal court and moved to dismiss for lack of jurisdiction. See Notice Remov., ECF

No. 1. Defendant argues that, as an out-of-state resident, its contacts with this forum are

insufficient to confer personal jurisdiction. The Court agrees.

STANDARD OF REVIEW

“Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the

plaintiff bears the burden of demonstrating that jurisdiction is appropriate.” Schwarzenegger v.

Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). “Where, as here, the motion is based

on written materials rather than an evidentiary hearing, ‘the plaintiff need only make a prima

facie showing of jurisdictional facts.’” Id. (quoting Sher v. Johnson, 911 F.2d 1357, 1361 (9th

Cir. 1990)). “Although the plaintiff cannot ‘simply rest on the bare allegations of its complaint,’”

any “uncontroverted allegations in the complaint must be taken as true,” and “[c]onflicts between

parties over statements contained in affidavits must be resolved in the plaintiff’s favor.”

Schwarzenegger, 374 F.3d at 800 (original citations omitted).

DISCUSSION

Because there is no applicable federal statute governing personal jurisdiction, the Court

looks to Oregon law. See Fed. R. Civ. P. 4(k)(1)(A); see also Ranza v. Nike, Inc., 793 F.3d 1059,

1068 (9th Cir. 2015). Oregon law authorizes personal jurisdiction to the fullest extent permitted

by the Due Process Clause of the U.S. Constitution. See Or. R. Civ. P. 4L. To be consistent with

due process, a plaintiff must show that a defendant has “minimum contacts” with Oregon, such

that “the maintenance of the suit” is “reasonable, in the context of our federal system of

government,” and “does not offend ‘traditional notions of fair play and substantial justice.’” Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,

463 (1940)). “The strength of contacts required depends on which of the two categories of

personal jurisdiction a litigant invokes: specific jurisdiction or general jurisdiction.” E.g., Ranza,

793 F.3d at 1068.

I. General Jurisdiction

For general jurisdiction to exist, the defendant must be “essentially at home” within the

forum state. Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021).

Corporations are “at home” in their state of incorporation and principal place of business. Id. In

exceptional cases, a foreign corporation may also be considered “at home” where its affiliations

with a state “are so ‘continuous and systematic’ as to render [it] essentially at home” in that state.

Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) (quoting Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 919 (2011)); see also id. at 359. “This is an exacting standard, as it

should be, because a finding of general jurisdiction permits a defendant to be haled into court in

the forum [s]tate to answer for any of its activities anywhere in the world.” Schwarzenegger, 374

F.3d at 801.

Here, Defendant is “at home” in Hawaii—its headquarters is in Hawaii, it is incorporated

under the laws of Hawaii, it is a licensed contractor in Hawaii, and it has only ever worked on

projects in Hawaii. Defendant does not currently, nor has it ever, worked on projects in Oregon,

and it does not have any offices or employees in Oregon. Based on these facts, it cannot be said

that Defendant has contacts with Oregon that are so “systematic and continuous” as to conclude

it is “at home” here. And, notably, Plaintiff neglects to make any argument on this issue. See

Pl.’s Resp. 5, 11, ECF No. 12. Due process therefore does not permit the exercise of

general jurisdiction over Defendant in Oregon.

II. Specific Jurisdiction

Alternatively, specific jurisdiction may apply where the defendant is “less intimately

connected” with the forum state. Davis v. Cranfield Aerospace Sols., Ltd., 71 F.4th 1154, 1163

(9th Cir. 2023) (quoting Ford Motor Co., 592 U.S. at 359). “To assert specific jurisdiction, the

defendant must have ‘take[n] some act by which it purposefully avails itself of the privilege of

conducting activities within the forum [s]tate.’” Id. (quoting Ford Motor Co., 592 U.S. at 359).

The act must be the defendant’s own “and not ‘random, isolated, or fortuitous.’” Ford Motor

Co., 592 U.S. at 359 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)).

Given that this type of jurisdiction rests on limited contacts with the forum, due process demands

that the claims asserted “must arise out of or relate to the defendant’s contacts with the forum.”

Id. (emphasis added).

The Ninth Circuit has established a three-pronged test for analyzing whether specific

jurisdiction over a defendant is proper:

(1) The non-resident defendant must purposefully direct his

activities or consummate some transaction with the forum or

resident thereof; or perform some act by which he purposefully

avails himself of the privilege of conducting activities in the

forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the

defendant’s forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and

substantial justice, i.e., it must be reasonable.

Schwarzenegger, 374 F.3d at 802 (citation omitted). Plaintiff bears the burden of satisfying the

first two prongs of the test; if it fails to satisfy either, personal jurisdiction is not established. Id.

Here, Plaintiff fails to satisfy the first prong.

A. First Prong

Under the first prong, Plaintiff has the burden of establishing that Defendant “performed

some act or consummated some transaction within the forum or otherwise purposefully availed

[itself] of the privileges of conducting activities in the forum.” See Pebble Beach Co. v. Caddy,

453 F.3d 1151, 1155 (9th Cir. 2006) (original citations omitted). This prong may be satisfied by

showing either “purposeful direction” or “purposeful availment.”1 E.g., In re W. States

1 While the first prong encompasses both “purposeful availment” and “purposeful direction,” they are distinct

concepts. Davis, 71 F.4th at 1162. Historically, some courts have applied the “availment” analysis to contract

claims, and the “direction” analysis to torts. See Schwarzenegger, 374 F.3d at 802. But the Ninth Circuit has

clarified that there is no “rigid dividing line between these two types of claims.” Davis, 71 F.4th at 1162. “Both

purposeful availment and purposeful direction ask whether defendants have voluntarily derived some benefit from

their interstate activities such that they will not be haled into a jurisdiction solely as a result of random, fortuitous, or

attenuated contacts.” Accordingly, “when considering specific jurisdiction, courts should comprehensively evaluate

the extent of the defendant’s contacts with the forum state and those contacts’ relationship to the plaintiffs’ claims—

which may mean looking at both purposeful availment and purposeful direction.” Id. (citations omitted).

Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 743 (9th Cir. 2013).

Purposeful direction is evaluated under a three-part “effects test.” Davis, 71 F.4th at

1162–63 (relying on Calder v. Jones, 465 U.S. 783 (1984)). The test asks whether the defendant

“(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that

the defendant knows is likely to be suffered in the forum state.” Id. “The proper question is not

where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct

connects him to the forum in a meaningful way.” Walden v. Fiore, 571 U.S. 277, 290 (2014).

Here, there is no evidence that Defendant expressly aimed any actions at Oregon. Defendant

explicitly contacted Plaintiff’s Honolulu office because Plaintiff held itself out as being able and

willing to take on projects in Hawaii. Once Defendant became aware that Plaintiff would be

incorporating Oregon staff and services, Defendant ended the relationship. To the extent any

argument rests on the fact that some tasks were performed in Oregon and labor was set to be sent

from Oregon, those facts resulted from Plaintiff’s unilateral decision and were not Defendant’s

own. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984)

(“[U]nilateral activity of another party or a third person is not an appropriate consideration when

determining whether a defendant has sufficient contacts with a forum State to justify an assertion

of jurisdiction.”). Lacking any intentional act expressly aimed at the forum, purposeful direction

cannot be established here.

To establish purposeful availment, courts “look at a defendant's ‘entire course of dealing’

with the forum state—‘not solely the particular contract or tortious conduct giving rise to [a

plaintiff’s] claim.’” Davis, 71 F.4th at 1163 (quoting Glob. Commodities Trading Grp. Inc., v.

Beneficio de Arroz Choloma, S.A., 972 F.3d 1101, 1108 (9th Cir. 2020)). This analysis seeks an

exchange: when the defendant “purposefully avails itself of the privilege of conducting activities

within the forum [s]tate, thus invoking the benefits and protections of its laws,” it thereby

“submit[s] to the burdens of litigation” in that forum. Id. (quoting Schwarzenegger, 374 F.3d at

802). Here, Plaintiff points to nothing that evinces Defendant purposefully availed itself of the

benefits and protections of Oregon. A final agreement was never executed, the negotiations took

place entirely over email and phone, and the Project’s terms and contemplated future

consequences were set to occur exclusively in Hawaii, governed by Hawaii’s laws. See Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985) (explaining that purposeful availment can be

established by a contract’s negotiations, terms, contemplated future consequences, and the

parties’ course of dealings). Plaintiff attempts to argue that Defendant reached out to Oregon

through the parties’ course of dealings when Defendant sent Plaintiff bid invitations over

SmartBid and directed calls, emails, and invitations to re-bid. This course of dealings, however,

does not reflect Defendant availing itself of Oregon’s laws; it merely implicates an Oregon

resident. See Burger King, 471 U.S. at 478 (entering a contract with a forum state resident is not

enough in itself to establish minimum contacts). Nothing in the record indicates that Defendant

sought out Plaintiff in Oregon or benefited from Plaintiff’s residency in Oregon, as Plaintiff

would argue.2

Because Plaintiff has failed to demonstrate either that Defendant directed its activities at

Oregon or purposefully availed itself of the privileges of conducting business in Oregon, the first

prong cannot be met. The Court need not address the remaining two. See Boschetto v. Hansing,

539 F.3d 1011, 1016 (9th Cir. 2008) (“[I]f the plaintiff fails at the first step, the jurisdictional

2 Plaintiff also argues that specific jurisdiction over Defendant is proper under a “sliding scale” test, as employed by

the court in Tech Heads, Inc. v. Desktop Serv. Ctr., 105 F. Supp. 2d. 1142, 1149–50 (D. Or. 2000). At its core,

Plaintiff’s argument is that jurisdiction is proper because Defendant uses an interactive website—SmartBid—and

because Defendant has at least one contact with Oregon—the bid invitations. Having already established that

Defendant’s bid invitations and other communications are not contacts with Oregon for the purpose of establishing

specific personal jurisdiction, Plaintiff’s argument cannot prevail, obviating the need to address the argument’s other

deficiencies.

inquiry ends and the case must be dismissed.”). Plaintiff has failed to make even a prima facie

case that this Court has personal jurisdiction—specific or general—over Defendant.

As a final note, in the event this Court “is not inclined to find personal jurisdiction based

on the facts known to Plaintiff” at this time, Plaintiff requests leave to conduct jurisdictional

discovery. Pl.’s Resp. 5, 11. To support this request, Plaintiff points to one paragraph from its

declaration stating that Plaintiff “know[s] at least one Oregon based contractor that has

performed work on a Maryl Group project in Hawaii around 2013.” Haynes Decl. ¶ 30. Plaintiff

believes “Defendant may have significant general contacts with Oregon.” Pl.’s Resp. 11. Such a

hunch cannot justify costly discovery where, at best, it would only yield evidence of more

projects performed exclusively in another forum. The Court fails to see how those contacts

would be so “continuous and systematic” as to render the Defendant essentially “at home” in

Oregon. Nor could Plaintiff’s proffered evidence lead to a finding of specific jurisdiction, since

Plaintiff’s claims do not “arise out of or relate to” Defendant’s contacts with a different Oregon-

based company. For these reasons, we deny Plaintiff’s request for jurisdictional discovery.

CONCLUSION

For the reasons discussed above, the Court GRANTS Defendant’s Motion to Dismiss,

ECF No. 8. The matter is dismissed without prejudice for lack of personal jurisdiction.

IT IS SO ORDERED.

DATED this 18th day of June 2025.

__s/Michael J. McShane_________________

Michael McShane

United States District Judge