IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

FRED D. HARUDA and THE FRED 

D. HARUDA REVOCABLE TRUST, 

Plaintiffs, 

v. 

RICHARD D. MOULTON; DANIEL 

D. MOULTON; COLOCO SPRINKLER 

INCORPORATED, a Colorado 

Corporation; ADS ENTERPRISES, 

LLC, a Colorado Limited 

Liability Corporation; and 

WTSD, LLC, a Colorado Limited 

Liability Corporation, 

Defendants. 

DAVID G. HOSENPUD 

Lane Powell 

601 S.W. Second Avenue, Suite 2100 

Portland, Oregon 97204 

Attorney for plaintiffs 

DONALD J. CHURNSIDE 

Gaydos Chunside & Balthrop, P.C. 

440 E. Broadway, Suite 300 

Eugene, Oregon 97401 

Attorney for defendants 

Page 1 - OPINION AND ORDER 

Case No. 6:15-cv-00719-AA 

OPINION AND ORDER 

Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 1 of 12
AIKEN, Chief Judge: 

Defendants Richard Moulton ( "RM"), Daniel Moulton ( "DM") , 

Co loco Sprinkler, Inc. ( "Coloco") , ADS Enterprises, LLC ("ADS") , 

and WTSD, LLC ("WTSD") move to dismiss plaintiffs Fred Haruda and 

The Fred D. Haruda Revocable Trust's ("FH Trust") complaint for 

lack of personal jurisdiction pursuant to Fed. R. Civ. P. 

( 12) (b) ( 2) . In the alternative, defendants move to transfer venue. 

For the reasons set forth below, defendants' motion is granted in 

part and denied in part. 

BACKGROUND 

Haruda, in his individual capacity and as a trustee for the FH 

Trust, is a resident of the state of Oregon. Am. Compl. ~ 1. RM and 

DM are residents of the state of Colorado. Id. at ~~ 2-3. Coloco is 

a Colorado corporation formed in 1987. Id. at~ 4. ADS and WTSD are 

Colorado limited liability companies formed in June 2013. RM Aff. 

~ 7. RM is a member of ADS. Am. CompL ~ 2. DM is the sole member 

of WTSD and part owner of Coloco. DM Decl. ~~ 1, 6. 

On April 19, 2015, plaintiffs initiated this lawsuit and, on 

June 17, 2015, filed an amended complaint alleging breach of 

contract, breach of fiduciary duty, conversion, money had and 

received, accounting, and elder abuse. Specifically, plaintiffs 

allege that, in May 2013, RM and DM executed letters of offer with 

the FH Trust to establish a Colorado holding company, whose purpose 

was to legally cultivate and distribute cannabis products in 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 2 of 12
Colorado. Am. Compl. ~ 9, Plaintiffs further allege that RM and DM 

came to Oregon in June 2013 to present business proposals and 

solicit funding. Id. at ~~ 11-12; Haruda Decl. ~ 4. In September 

2013, RM and DM, through a general durable power. of attorney 

contract, became attorneys-in-fact for Haruda and all real and 

personal property of the FH Trust. Am. Compl. ~. 15. 

Around December 2013, Haruda informed RM and DM that the 

business arrangement was terminated and instructed them to return 

all funds held either personally or by the companies under their 

control. Id. at ~ 16; Haruda Decl. ~ 11. RM and DM have not 

returned any such funds. Am. Compl. ~ 16. On June 8, 2015, 

defendants filed the present motion to dismiss or transfer venue. 

STANDARDS 

Where the court lacks personal jurisdiction, the action must 

be dismissed. Fed. R. Civ. P. 12 (b) (2). When a defendant moves to 

dismiss on this basis, the plaintiff bears the burden of 

establishing that such jurisdiction exists. Schwarzenegger v. Fred 

Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) (citation 

omitted). Where the court makes its jurisdictional finding based on 

pleadings and affidavits rather than an evidentiary hearing, the 

plaintiff need only make a prima facie showing of jurisdictional 

facts. Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 127-28 

(9th Cir. 1995). While the plaintiff cannot rely entirely on the 

allegations of the complaint to establish that personal 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 3 of 12
jurisdiction is proper, the complaint's uncontroverted factual 

allegations must be accepted as true and any factual conflicts in 

the parties' declarations must be resolved in the plaintiff's 

favor. Harris Rusky & Co. Ins. Serv., Inc. v. Bell & Clements Ltd., 

328 F.3d 1122, 1129 (9th Cir. 2003). 

DISCUSSION 

Defendants assert that this case should be dismissed because 

they did not engage in adequate contacts with the State of Oregon. 

In the alternative, defendants argue that venue is proper in the 

District of Colorado, such that this case should be transferred. 

When no applicable federal statute governs personal 

jurisdiction, the court applies the law of the state in which it 

sits. Schwarzenegger, 374 F.3d at 800 (citations omitted). Oregon's 

long-arm statute is coextensive with federal due process 

requirements, and the jurisdictional analyses under state and 

federal law are the same. Id. at 801; Or. R. Civ. P. 4L. Thus, the 

two inquiries merge and this Court need only determine whether the 

assertion of personal jurisdiction over defendants violates the due 

process clause. 

In order for a court to have the power to render judgment 

against a defendant, the plaintiff must show that the nature and 

quality of the non-resident's contacts are sufficient to establish 

personal jurisdiction. Helicopteros Nacionales de Columbia, S.A. v. 

Hall, 466 U.S. 408, 414-15 (1984). Due process requires that a 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 4 of 12
defendant, if not present in the state, "have certain minimum 

contacts with it such that the maintenance of the suit does not 

offend traditional notions of fair play and substantial justice." 

Int'l Shoe Co. v. Washington, 326 U.S. 310, 315 (1945). Plaintiffs 

do not dispute that general personal jurisdiction is lacking; 

therefore, defendants' motion hinges on whether specific personal 

jurisdiction exists. 

A court may exercise specific personal jurisdiction over a 

non-resident if: (1) the defendant performs an act or consummates 

a transaction within the forum, purposefully availing itself on the 

privilege of conducting activities there; ( 2) the plaintiff's 

claims arise out of or result from the defendant's forum-related 

activities; and ( 3) the exercise of personal jurisdiction is 

reasonable. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1155 (9th 

Cir. 2006) (citations omitted). The plaintiff "bears the burden of 

satisfying the first two prongs of the minimum contacts test." Id. 

(citation and internal quotations omitted). 

I. Purposeful Availment 

A defendant purposefully avails itself where evidence shows 

that its actions invoked the benefits, protections, and burdens of 

litigation within the forum state. Schwarzenegger, 374 F.3d at 802 

(citations omitted). The Ninth Circuit explained that the 

[p] urposeful availment analysis examines whether the 

defendant's contacts with the forum are attributable to 

his own actions or are solely the actions of the 

plaintiff. In order to have purposely availed oneself of 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 5 of 12
conducting activities in the forum, the defendant must 

have performed some type of affirmative conduct which 

allows or promotes the transaction of business within the 

forum state. 

Roth v. Garcia Marquez, 942 F.2d 617, 621 (9th Cir. 1991). 

Here, Haruda offered sworn statements that RM and OM traveled 

to Oregon to present a PowerPoint demonstration, in the hopes of 

establishing a holding company with Haruda and/or the FH Trust for 

the manufacture and sale of legal cannabis products in Colorado. 

Haruda Decl. 'li 4 & Ex. 1. RM and OM "were very insistent, and the 

meeting lasted two hours." Haruda Decl. 'li 4. RM later returned to 

Oregon in November 2013 to prevent revocation of the power of 

attorney contract and to persuade Haruda to maintain his business 

relationship with RM and OM. Id. at 'li 10; RM Aff. 'li 5. Therefore, 

although the majority of the parties' initial discussions occurred 

in Colorado, RM and OM's visits to Oregon to first solicit, and 

later continue, a business relationship with plaintiffs are 

sufficient to demonstrate the requisite purposeful availment. See 

Cross v. Kloster Cruise Lines, Ltd., 897 F.Supp. 1304, 1310-11 (D. 

Or. 1995) (exercise of personal jurisdiction over a non-resident 

cruise company was valid because the company deliberately promoted 

the cruise within the forum state); Burger King Corp. v. Rudzewicz, 

471 U.S. 462, 475-76 (1985) (the purposeful availment prong is 

fulfilled when a defendant takes deliberate actions within the 

forum or creates continuing obligations to forum residents). 

RM and OM also drafted a power of attorney contract that, by 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 6 of 12
its own terms, was governed by Oregon law. Haruda Decl. Ex. 3 at 

12; see also Burger King, 471 U.S. at 482 (the choice of law clause 

in a contract, while alone is not determinative of jurisdiction, 

can show a defendant's deliberate decision to be subject to the 

laws of the forum state). This contract gave defendants control 

over Haruda's entire estate, including all of the FH Trust's Oregon 

assets. Haruda Decl. Ex. 3 at 1. Upon commencement of that control, 

defendants created an ongoing obligation to plaintiffs. 

Accordingly, this agreement further evinces that the purposeful 

availment prong is met. 1 

Further, ADS and WTSD were created by RM and DM exclusively 

for their business venture with plaintiffs. Am. Compl. 'TI'TI 12-13; RM 

Decl. 'TI 4; DM Decl. 'TI 1; Defs.' Reply to Mot. Dismiss 2-3, 9-10. 

Essentially, ADS and WTSD were holding companies for the funds RM 

and DM personally solicited in Oregon from plaintiffs. Id. As legal 

entities, ADS and WTSD could only act through their members, RM and 

DM. RM Aff. 'TI 7; Am. Compl. 'TI'TI 2-3. In other words, when RM and DM 

1 Although defendants do not dispute that RM and DM traveled 

to Oregon or executed a valid contract subject to Oregon law, 

they contend that Haruda initiated the business venture in 

Colorado and personally requested that RM and DM come to Oregon 

in June 2013. RM Aff. 'TI 5. RM also asserts that he returned to 

Oregon only to check on Haruda's well-being. RM Decl. 'TI 14. 

Defendants further argue that Haruda initiated the power of 

attorney contract. Id. at 'TI 10. At this stage in the proceedings, 

the Court must construe all conflicting factual allegations from 

the parties' declarati?ns in plaintiffs' favor. Harris Rusky, 328 

F.3d at 1129. As such, this evidence does not alter the Court's 

analysis. 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 7 of 12
were establishing the requisite minimum contacts with this forum, 

they were acting as the agents of these entities. Therefore, the 

Court finds that purposeful availment has been met with respect to 

ADS and WTSD. 

However, the Court cannot find purposeful availment on the 

part of Coloco, a Colorado corporation formed nearly twenty years 

before this dispute arose. Plaintiffs do not allege that Coloco has 

any apparent connection to RM and DM' s business dealings with 

plaintiffs in Oregon. Rather, plaintiffs rely solely on the 

allegation that RM and DM transferred funds from ADS and/or WTSD to 

Coloco. To support this allegation, plaintiffs present balance 

sheets and an income statement for Coloco that "were represented by 

[defendants] to be information related to the accounting for the 

money provided by plaintiffs to defendants." See Hosenpud Decl. 

Suppl. Pls.' Response at 2 (doc. 22) . However, such transfer of 

funds even if true does not establish sufficient minimum 

contacts with this forum on the part of Coloco. Martinez v. Aero 

Caribbean, 764 F.3d 1062, 1068 (9th Cir. 2014) ("[A] corporation 

may be subject to personal jurisdiction only when its contacts with 

the forum support either specific or general jurisdiction."). 

Accordingly, defendants' motion is granted-as to Coloco. 

II. Claims Arise/Result From Forum-Related Activities 

To meet the second prong of the minimum contacts test, the 

Ninth Circuit requires that the defendant's forum activities be a 

Page 8 - OPINION AND ORDER 

Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 8 of 12
but-for cause of the litigation. Ballard v. Savage, 65 F.3d 1495, 

1500 (9th Cir. 1995). 

It is undisputed that the alleged breaches and misconduct in 

this case relate directly to the parties' underlying business 

venture and power of attorney contract. Am. Compl. ']['][ 17-42. 

Viewing the uncontroverted facts in a light most favorable to 

plaintiffs, the parties' relationship would not have continued 

without the agreement and funding sought by RM and DM, or the power 

of attorney contract initiated and drafted by RM and DM relating to 

Haruda's estate. In sum, without RM and DM's deliberate actions 

within Oregon, directed towards an Oregon resident, plaintiffs' 

claims would not exist. See Schwarzenegger, 37 4 F. 3d at 8 03 (the 

second prong of the minimum contacts test is met where the 

defendant directs its actions towards a forum resident). The second 

prong is satisfied. 

III. Reasonableness of Exercising Jurisdiction 

If the first two prongs are met, the court assumes that the 

exercise of specific jurisdiction is reasonable. Sher v. Johnson, 

911 F.2d 1357, 1364 (9th Cir. 1990). The burden then shifts to the 

defendant to avoid jurisdiction. Ballard, 65 F. 3d at 1500. The 

defendant must "present a compelling case that the presence of some 

other considerations would render jurisdiction unreasonable." Id. 

(citations and internal quotations omitted). The court must balance 

seven reasonableness factors: 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 9 of 12
(1) the extent of the defendants' purposeful interjection 

into the forum state's affairs; ( 2) the burden on the 

defendant of defending in the forum; ( 3) the extent of 

conflict with the sovereignty of the defendants' state; 

(4) the forum state's interest in adjudicating the 

dispute; ( 5) the most efficient judicial resolution of 

the controversy; (6) the importance of the forum to the 

plaintiff's interest in convenient and effective relief; 

and (7) the existence of an alternative forum. 

Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1487-88 (9th Cir. 

1993) (citation omitted). No one factor is dispositive and all 

seven factors must be considered. Id. 

As discussed in section I, RM and OM purposefully availed 

themselves of this forum, and the extent of their activities weighs 

in favor of exercising jurisdiction. D. Brutke's Victory Hills, LLC 

v. Tutera, 2013 WL 3818146, at *13 (D. Or. July 22, 2013). 

The second factor weighs slightly in favor of defendants. 

Defendants are residents of Colorado, some of the evidence and 

witnesses are in Colorado, and certain business transactions 

occurred in Colorado. However, "the advances in transportation 

[render] any burden [of interstate practice] substantially less 

than in days past." Menken v. Emm, 503 F.3d 1050, 1060 (9th Cir. 

2007). Further, defendants claim no specific hardship in litigating 

this dispute in Oregon. 

Neither party directly addressed the third reasonableness 

factor, such that it is neutral. See U. Brutke' s Victory, 2013 WL 

3818146, at *13 (this factor is given relatively little weight when 

all of the parties are in the United States). 

Fourth, Oregon has a strong interest in this dispute, as one 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 10 of 12
of its residents allegedly has been injured. Panavision Int'l, L.P. 

v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998). 

In relation to the fifth element, both parties argue that a 

majority of the evidence and witnesses are in their respective 

states, and that neither forum would be significantly more 

efficient, especially given modern technology and transportation. 

The Court is more than capable of resolving this dispute, 

irrespective of which state's laws govern. 

Sixth, Oregon is an important forum for plaintiffs due to 

Haruda's physical disabilities. Haruda Decl. ~ 1. Even with modern 

transportation, traveling to Colorado may cause inconvenience, if 

not hardship, on Haruda. 

Seventh, because defendants are residents of the state of 

Colorado, the District of Colorado exists as an alternative forum. 

However, the existence of an alternative forum becomes an issue 

only when the defendants show the original forum is unreasonable. 

CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1080 (9th 

Cir. 2011). As addressed herein, defendants have not demonstrated 

that the District of Oregon is an unreasonable forum. 

Finally, the Court has reviewed the elements that dictate 

whether a transfer of venue is warranted under 28 U.S.C. § 

1404 (a) . 2 See Jones v. GNC Franchising, Inc., 211 F. 3d 495, 498-99 

2 Defendants rely on 28 U.S.C. § 1406(a) in support of 

transfer. Defs.' Mot. Dismiss 7. However, this statute governs 

the transfer of venue for a complaint that is filed in the "wrong 

division or district." 28 U.S.C. § 1406(a). Thus, courts employ 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 11 of 12
(9th Cir. 2000) (articulating non-exclusive factors for determining 

transfer of venue pursuant to 28 U.S.C. § 1404(a)). Although 

defendants do not individually address these elements, many are 

similar to the reasonableness factors outlined above. As such, for 

the reasons delineated herein, the Court finds that a transfer of 

venue would not serve the interests of justice or convenience of 

the parties and witnesses. 

CONCLUSION 

Defendants' motion to dismiss or transfer venue (doc. 4) is 

GRANTED as to defendant Coloco and DENIED in all other respects. 

Plaintiffs' request for oral argument is DENIED as unnecessary. 

Defendants' unopposed motion to supplement the record (doc. 25) is 

GRANTED. 

IT IS SO ORDERED. 

Dated this day of September, 2015. 

Ann Aiken 

United States District Judge 

28 U.S.C. § 1406(a) when the plaintiff selected an "improper" 

forum. Flavor Organics, Inc. v. Aalta Orange Food Co., Inc., 2002 

WL 31478148, *3 (D. Or. Apr. 22, 2002). As noted above, venue is 

proper in Oregon, such that 28 U.S.C. § 1404(a) applies. 

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Case 6:15-cv-00719-AA Document 28 Filed 09/16/15 Page 12 of 12