THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

MORASCH MEATS, INC., 

Plaintiff, 

v. 

FREVOL HPP, LLC, fka FRESHER 

EVOLUTION HPP, L.L.C., et al., 

Defendants. 

PAP AK, Magistrate Judge: 

No. 3:16-cv-0269-PK 

OPINION AND ORDER 

Plaintiff Morasch Meats, Inc. brings this action asserting claims for breach of contract 

and fraud against Defendants Frevol HPP, LLC (Prevo!); All Natural Freshness, Inc. (ANF); and 

Gerald Ludwick (Ludwick). 1 Plaintiff, which agreed to purchase a high-pressure pasteurization 

(HPP) machine from Defendants for $1,550,000, alleges that Defendants breached the parties' 

agreement by failing to install an operational HPP machine, and that Defendants knowingly 

1 This court has dismissed Defendant Paige Raifsnider Ludwick for lack of personal jurisdiction. 

F&R, ECF No. 77; Order Adopting F&R, ECF No. 79. 

Page-I- OPINION AND ORDER 
misrepresented their expertise in manufacturing HPP machines, and their financial resources, to 

induce Plaintiff to purchase the HPP machine. Plaintiff also alleges that Defendant Ludwick 

controls Prevo! and ANP, the other two defendants, and that Ludwick failed to adequately 

capitalize Prevo! and ANF and milked them of their assets, justifying piercing the corporate veil 

as to Plaintiffs claims. 

Plaintiff now moves for partial summary judgment on its theory of piercing the corporate 

veil, and on the existence and terms of the parties' contract. Defendants move to dismiss 

Plaintiffs fraud claim as untimely, and move for summmy judgment on (1) Plaintiffs claim for 

breach of contract against ANF; (2) Plaintiffs claim that Prevo! is responsible for failing to meet 

the deadline for installing the HPP machine; (3) Plaintiffs claim for fraud; and ( 4) Plaintiffs 

assertion of a piercing the corporate veil themy. 

After the hearing on these motions, counsel notified the court that the patties had reached 

stipulations on several of the disputed issues. Defendants stipulate to the following: 

(1) granting summmy judgment on Plaintiffs motion to remove the statute of frauds 

affirmative defense from the case; 

(2) granting summary judgment on Plaintiffs motion to adjudge the October 14, 2014 

Contract (the Contract), without modification, to be the operative contract between Plaintiff and 

Prevo!; 

(3) granting summmy judgment on Plaintiffs motion to adjudge the contract terms listed 

in Plaintiffs Motion for Partial Summaty Judgment, at 30-31, ECP No. 137, as the relevant 

terms of the Contract between Plaintiff and Prevo!, although Defendants may asse1t affirmative 

defenses at trial; 

Page -2- OPINION AND ORDER 
( 4) withdrawing Defendants' request for summary judgment on requested modifications 

to the Contract, while preserving the right to argue these facts at trial as they relate to the parties' 

course of performance; and 

(5) withdrawing Defendants' request for summary judgment on whether the Contract's 

provisions setting the delivery date and commissioning deadline of December 31, 2014, were 

rendered moot, while leaving this court free to adjudge any other term of the Contract. 

Plaintiffs stipulate to dismissing ANF from the breach of contract claim, and to 

dismissing ANF as to the piercing the corporate veil theory on the breach of contract claim. 

In light of these stipulations, the parties seek this court's rulings on Defendants' motion 

to dismiss Plaintiffs fraud claim as untimely; Defendants' motion for summary judgment on 

Plaintiffs fraud claim; and the parties' cross-motions for summmy judgment as to Plaintiffs 

piercing the corporate veil theory. For the following reasons, as to the remaining issues in 

dispute, I deny Defendants' motions to dismiss and for summary judgment, and I grant Plaintiffs 

motion for partial summmy judgment on its the01y of piercing the corporate veil. 

DISCUSSION 

I. Defendants' Motion to Dismiss Fraud Claim Based on the Statute of Limitations 

Defendants move to dismiss Plaintiffs fraud claim, contending that Plaintiff brought the 

claim after Oregon's two-year statute oflimitations for fraud claims had run. I deny Defendants' 

amended motion to dismiss. 

A. Background 

Plaintiff alleges that in April 2013, Eric Lockovitch, vice president of ANF, emailed 

Michael Morasch, Plaintiffs president and one of its owners, introducing Frevol's "newest HPP 

Page -3- OPINION AND ORDER 
equipment line." This was the beginning of the paiiies' negotiations on Plaintiffs purchase of 

Defendants' HPP machine. Second Am. Comp!. 'if 7. Plaintiff alleges that during the patties' 

negotiations over the next 18 months, Defendants made material, false representations that 

induced Plaintiff to purchase the HPP machine. Id. 'if 44. Plaintiff alleges five categories of 

fraudulent asseiiions made by Defendants: (1) that Defendants could deliver an HPP machine 

that complied with federal and state rules, including certification from the American Society of 

Mechanical Engineers (ASME); (2) that Defendants were supported by a team of highly qualified 

professionals, although Ludwick worked alone and knew the workers he would recruit for the 

HPP machine project were not highly qualified professionals; (3) that Defendants had previously 

provided customers with an "incredible value" although Defendants had supplied at least one 

customer with an HPP machine that could not be ASME certified; ( 4) that Defendants could 

honor warranties, fully indemnify Plaintiff for costs incurred, honor a one-year guarantee against 

defects, and were adequately capitalized by the financial resources of Ludwick and his wife; and 

(5) that Defendants could provide spare parts for two years. Second Am. Comp!. 'if 44(a)-(e). 

Plaintiff contends that Defendants' alleged false representations played a material role in 

its decision on September 16, 2014, to make a $1 million down payment towards the purchase of 

an HPP machine, and its subsequent decision on October 15, 2014, to enter into the Contract 

with Frevol to purchase an HPP machine for $1,550,000. ECF No. 125-1 (the Contract). 

Plaintiff contends that until it sent Defendants the $1 million down payment, the paiiies had not 

"made any commitment to each other, and the Patties were in no way obligated to take any action 

regarding the potential HPP Machine purchase." Pl.'s Resp. 4, ECF No. 142. 

After Plaintiff agreed to purchase the HPP machine, Ludwick spent more than a year 

Page -4- OPINION AND ORDER 
attempting unsuccessfully to install the HPP machine at Plaintiffs Portland facility. By letter 

dated February 14, 2016, Ludwick terminated the Contract. The next day, Plaintiff filed its 

initial complaint in this action. 

In their motion to dismiss, Defendants contend that Plaintiffs fraud claim is time-barred 

because Plaintiff should have discovered the alleged fraud before February 15, 2014. Defendants 

do not dispute that the fraud claim Plaintiff asserts in the Second Amended Complaint relates 

back under Federal Rule of Civil Procedure 15 to the filing date of Plaintiffs initial complaint. 

See Defs.' Reply 2, ECF No. 143. 

B. Legal Standards for Motions to Dismiss for Failure to State a Claim 

"To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)], a 

complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is 

plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). To show plausibility, the plaintiff must do more than 

show "a sheer possibility that a defendant has acted unlawfully." Id 

The court is not required to accept a complaint's legal conclusions. Id. "Dismissal is 

proper when the complaint does not make out a cognizable legal theory or does not allege 

sufficient facts to supp01t a cognizable legal theo1y." Chubb Custom Ins. Co. v. Space 

Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). 

C. Discussion 

The applicable statute oflimitations provides: 

An action for assault, batte1y, false imprisonment, or for any injmy to the person 

or rights of another, not arising on contract, and not especially enumerated in this 

chapter, shall be commenced within two years; provided, that in an action at law 

Page -5- OPINION AND ORDER 
based upon fraud or deceit, the limitation shall be deemed to commence only from 

the discove1y of the fraud or deceit. 

Or. Rev. Stat. § 12.110(1 ). A plaintiff bringing a fraud claim discovers an injmy when the 

plaintiff either knows or should have known of three elements: (1) harm; (2) causation; and (3) 

tortious conduct. Padrickv. Lyons, 277 Or. App. 455, 465-66, 372 P.3d 528, 535 (citing Gaston 

v. Parsons, 318 Or. 247, 255, 864 P.2d 1319, 1323 (1994)), review denied, 360 Or. 26, 381 P.3d 

821 (2016) (table). "'[T]he facts that a plaintiff must have discovered or be deemed to have 

discovered include not only the conduct of the defendant, but also, under Gaston, the tortious 

nature of that conduct."' Id., 277 Or. App. at 466, 372 P.3d at 535 (quoting Doe v. Lake Oswego 

Sch. Dist., 353 Or. 321, 331, 297 P.3d 1287, 1295 (2013)). The court looks to '"how a 

reasonable person of ordinary prudence would have acted in the same or a similar situation."' Id. 

(quoting Kaseberg v. Davis Wright Tremaine, LLP, 351 Or. 270, 278, 265 P .3d 777 (2011 )). "A 

plaintiff has a duty to act diligently to discover the relevant facts." kl, 372 P.3d at 536. "The 

nature of the plaintiffs relationship with the defendant is relevant to the question whether the 

plaintiff has acted with sufficient diligence." Id. 

"Whether a plaintiff has discovered an injmy generally presents a factual question for the 

jury .... " Padrick, 277 Or. App. at 466. A comt may, however, resolve the issue of discovery 

as a matter of law if '"the only conclusion a reasonable jury could reach is that the plaintiff knew 

or should have known the critical facts at a specified time and did not file suit within the 

requisite time thereafter."' Id. {quoting T.R. v. Boy Scouts of Am., 344 Or. 282, 296, 181 P.3d 

758, 765 (2008)). 

Here, Defendants contend that Plaintiff should have investigated Defendants' statements 

Page -6- OPINION AND ORDER 
during the parties' negotiations before Plaintiff made the $1 million down payment. Defendants 

argue that taking Plaintiffs allegations as true, Plaintiff had "concerns and questions all along the 

way pre-February 15, 2016." Defs.' Reply 11, ECF No. 143. Defendants contend that Plaintiff 

did not investigate beyond discussions with defendants; although it had sufficient 

leads to explore. In essence, plaintiff did nothing and stuck its head in the sand 

from April 2013 until February 14, 2014, despite recognizing and voicing 

concerns about the viability of the machine, the background and financial 

competency of the defendants, being told about serious problems with an [Austin, 

Texas] HPP machine, and fear about wear parts and repairs. 

Defs.' Am. Mot. Dismiss 8 (footnote omitted), ECF No. 130. 

Plaintiff responds that it could not have experienced cognizable harm, and therefore could 

not have discovered the fraud, until it made the $1 million down payment on September 16, 

2014, well within the two-year statutory period. Plaintiff contends that"[ w]ithout the element of 

damages, there can be no fraud claim." Pl.'s Resp. 9, ECFNo. 142. Plaintiff argues that it could 

not have been aware of harm until it made the down payment, so it could not have discovered 

Defendants' alleged fraud before September 2014. 

Defendants argue that Plaintiff should have known before making the down payment that 

Defendants were lying about their net worth, expe11ise, and past successes, and that Plaintiff 

should have realized that Defendants could not supply an acceptable HPP machine. I disagree. 

Taking Plaintiffs pleadings as true, as I must on a motion to dismiss, from April 2013 until 

September 2014, Plaintiff was negotiating with Defendants about purchasing an HPP machine. 

A factfinder could determine that Plaintiff reasonably believed Defendants could fulfill the 

promises they made during the negotiations. For example, Plaintiffs knowledge of problems 

with Defendants' Texas HPP machine (which was not the same model as the HPP machine at 

Page -7- OPINION AND ORDER 
issue here) does not necessarily show that Plaintiff should have known Defendants were lying 

about their ability to complete Plaintiffs project. I conclude that Defendants have not shown 

Plaintiff should have discovered the alleged fraud through its own investigations before Plaintiff 

made the down payment in September 2014. I deny Defendants' motion to dismiss Plaintiff's 

fraud claim. 

II. Defendants' Motion for Summary Judgment 

Defendants move for summary judgment on Plaintiff's claim for fraud and on Plaintiff's 

piercing the corporate veil theory. I agree with Plaintiff that disputed issues of material fact 

preclude summary judgment on the fraud claim. I will address Plaintiff's corporate veil theo1y 

below in my discussion of Plaintiff's motion for partial summmy judgment. 

A. Legal Standards for Motions for Summary Judgment 

Summary judgment is appropriate "if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(a). A factual dispute is genuine "ifthe evidence is such that a reasonable jmy could return a 

verdict for the nonmoving pmty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

In ruling on a motion for summmy judgment, the court must draw all reasonable inferences in 

favor of the nonmoving party and may not credibility determinations or weigh evidence. See 

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 

B. Discussion 

As noted above in the discussion of Defendants' motion to dismiss, Plaintiff asse1ts five 

categories of alleged fraudulent assertions made by Defendants: (1) Defendants could deliver an 

HPP machine that complied with federal and state law, including certification from the American 

Page -8- OPINION AND ORDER 
Society of Mechanical Engineers (ASME); (2) Defendants were supported by a team of highly 

qualified professionals; (3) Defendants had provided previous customers with an "incredible 

value" although Defendants had supplied at least one customer with an HPP machine could not 

be ASME ce1iified; ( 4) Defendants could honor warranties, fully indemnify Plaintiff for costs 

incurred, honor a one-year guarantee against defects, and were properly capitalized by the net 

worth of Ludwick and his wife; and ( 5) Defendants could provide spare parts for two years. 

Second Am. Comp!. il 44(a)-(e). 

In Oregon, the elements of fraud are: 

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge 

of its falsity or ignorance of its truth; (5) his intent that it should be acted on by 

the person and in the manner reasonably contemplated; (6) the hearer's ignorance 

of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; (9) and his 

consequent and proximate inju1y. 

Conze/mann v. Nw. Poultry & Daily Prods. Co., 190 Or. 332, 350, 225 P.2d 757, 764 (1950); 

Tower Ins. Co. a/New York v. Rose City Auto Group, LLC, No. 14-cv-00975-MO, 2015 WL 

4910475, at *2 (D. Or. April 17, 2015). "A plaintiff must establish each element of fraud by 

clear and convincing evidence. Intent to defraud may be established by circumstantial evidence." 

Global Exec. lvfgmt. Solutions, Inc. v. Int'/ Bus. lvfach. Corp., 260 F. Supp. 3d 1345, 1383 (D. Or. 

2017) (Global Exec.) (citations omitted). 

Defendants argue that "Plaintiff's fraud claim is primarily based on promises claimed to 

be unmet or future promises the Defendants allegedly could not fulfill. Failure to perform future 

promises to perform are [sic] not fraudulent misrepresentations." Defs.' Reply 8. 

I disagree with Defendants' premise that Plaintiff bases its fraud claim on statements 

about future intent. Plaintiff alleges that in deciding to purchase the HPP machine, it relied on 

Page -9- OPINION AND ORDER 
Ludwick's statements about his and his "team's" expe1iise in manufacturing HPP machines, his 

previous success in doing so, and his and his wife's financial resources to honor the warranties, 

guarantee, and indemnification provisions, when allegedly none of these statements was true. A 

plaintiff"may establish fraud by showing that 'at the time of the making of the promise, there 

was no present intention of performance or, alternatively, that the promise was made with 

reckless disregard as to whether the promissor could or could not perform.'" Global Exec., 260 

F. Supp. 3d at 1383-84 (quoting Webb v. Clark, 274 Or. 387, 393 n.2, 546 P.2d 1078, 1080 n.2 

(1976) (emphasis added by Global Exec.)). Here, there are disputed issues of material fact 

whether Defendants made false promises to Plaintiff with at least "reckless disregard" whether 

they could perform, to persuade Plaintiff to purchase the HPP machine. 

Defendants argue that Plaintiff, as an established business, had the upper hand in the 

parties' negotiations because Frevol and ANF were stmt-up corporations. Defendants also 

contend that Plaintiff was at least as knowledgeable as Defendants in the design, manufacture, 

and operation ofHPP machines, and therefore could not have justifiably relied on Defendants' 

representations. These arguments present material issues of disputed fact that are not appropriate 

for summmy judgment. See Global Exec., 260 F. Supp. 3d at 1386 ("Given that the standard is 

reasonableness and is determined based on the totality of both parties' conduct, this issue is 

reserved for the factfinder because reasonable but competing inferences may be drawn."); 

Oregon Pub. Emps. ' Rel. Bd. ex rel. Oregon Pub. Emps. ' Ret. Fund v. Simat, Helliesen & 

Eichner, 191 Or. App. 408, 428, 83 P.3d 350, 361 (2004) ("Oregon case law adheres to a 

consistent principle: Reliance in fact must be reasonable, but such reasonableness is measured in 

the totality of the patties' circumstances and conduct."). I deny Defendants' motion for summmy 

Page -10- OPINION AND ORDER 
judgment as to Plaintiffs fraud claim. 

III. Motions for Summary Judgment on Piercing the Corporate Veil 

Plaintiff asserts a piercing the corporate veil theory as to both of its claims.2 Plaintiff 

contends it is entitled to smmnary judgment that the piercing the corporate veil theoty applies. 

Defendants argue that Plaintiff has failed to show as a matter oflaw that Ludwick should be 

liable for the conduct of the two corporate defendants. I deny Defendants' motion for summmy 

judgment as to the piercing the corporate veil theory, and I grant Plaintiffs motion for partial 

summmy judgment as to piercing the corporate veil as to Ludwick's liability. 

A. Choice of Law 

1. The Internal Affairs Doctrine Does Not Apply 

"Federal coutis sitting in diversity look to the law of the forum state ... when making 

choice oflaw determinations." Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 

2014). I therefore apply Oregon choice-of-law rules. 

Plaintiff contends Oregon law applies to its piercing the corporate veil theory. 

Defendants contend that Michigan law applies because Frevol3 and ANF are businesses based in 

2 Plaintiff characterizes its piercing the corporate veil assertions as a "claim." See, e.g., Pl. 's 

Mot. 32, ECF No. 137. As I have noted, however, "disregard of corporate formalities, or piercing the 

corporate veil, is a mechanism for recovery of damages, and is not an independent cause of action." 

Robinson v. Charter Practices Int'!, LLC, 3:14-cv-1736-PK, 2015 WL 1799833, at *17 (D. Or. April 16, 

2015), ajj"d, 696 F. App'x 226 (9th Cir. 2017). 

3 Plaintiff states that it is unclear whether the internal affairs doctrine may be applied to Frevol, 

which is a limited liability company rather than a corporation. See Pl.'s Reply 4 n.3. While not 

addressing this precise issue, this court has determined that under Oregon law, "[t]he veil-piercing 

doctrine may be applied to LLCs under the same circumstances in which it is applied to corporations." 

Saldana v. Slingh{ff, No.10-cv-1146-ST, 2011 WL 4625706, at *2 (D. Or. Aug. 29, 2011), adopted, 2011 

WL 4625702 (D. Or. Sept. 30, 2011). For purposes of these motions, I will assume that the internal 

affairs doctrine could apply to an LLC. 

Page -11- OPINION AND ORDER 
Michigan, and Michigan law should govern questions of internal corporate governance. 

I did not find a decision applying Oregon law that addressed choice of law for piercing 

the corporate veil. There is a split of authority on the proper choice of law for piercing the 

corporate veil issues. See Gregory Scott Crespi, Choice of Law in Veil-Piercing Litigation: Why 

Courts Should Discard the Internal Affairs Rule and Embrace General Choice of Law 

Principles, 64 N.Y.U. Ann. Surv. Am. L. 85, 90-91 (2008-09). Courts that apply the law of the 

state of incorporation generally rely on the internal affairs doctrine, as Defendants do here. "The 

internal affairs doctrine is a conflict oflaws principle which recognizes that only one State 

should have the authority to regulate a corporation's internal affairs-matters peculiar to the 

relationships among or between the corporation and its current officers, directors, and 

shareholders-because otherwise a corporation could be faced with conflicting demands." 

Edgar v. JvJJTE Corp., 457 U.S. 624, 645 (1982). Here, Plaintiffbrings claims against ANF and 

Prevo! as a third party. Under these circumstances, the internal affairs doctrine does not govern 

choice of law. As this court has noted, 

"Corporations and individuals alike enter into contracts, commit torts, and deal in 

personal and real property. Choice of law decisions relating to such corporate 

activities are usually determined after consideration of the facts of each 

transaction. In such cases, the choice of law determination often turns on whether 

the corporation had sufficient contacts with the forum state, in relation to the act 

or transaction in question, to satisfy the constitutional requirements of due 

process. The internal affairs doctrine has no applicability in these situations. 

Rather, this doctrine governs the choice of law determinations involving matters 

peculiar to corporations, that is, those activities concerning the relationships inter 

se of the corporation, its directors, officers and shareholders." 

Summit Props., Inc. v. New Tech. Elec. Contractors, Inc., No. CV-03-748-ST, 2004 WL 

1490327, at *25 n.12 (D. Or. July 2, 2004) (quoting JvfcDermott Inc. v. Lewis, 531 A.2d 206, 214 

Page -12- OPINION AND ORDER 
-215 (Del. 1987) (emphasis in McDermott) (citation omitted)). I apply Oregon choice oflaw 

statutes to determine the governing law here. 

2. Oregon Choice of Law 

As to Plaintiffs breach of contract claim, under Oregon law, "the contractual rights and 

duties of the patties are governed by the law or laws that the parties have chosen." Or. Rev. Stat. 

§ 15.350(1). In the Contract at issue, the parties agreed that Oregon law applies. Second Am. 

Comp!., Ex. A, at 18 ("Laws of the State of Oregon will be applicable to the sales contract."). 

Even if the parties had not expressly chosen Oregon law, Oregon law would apply because the 

Contract was to be performed in Oregon and Defendants allegedly breached the Contract in 

Oregon. See Or. Rev. Stat.§ 71.3010(2) (if the parties have not agreed on choice of law, the 

Oregon Uniform Commercial Code "applies to transactions bearing an appropriate relation to 

this state"); Or. Rev. Stat. § 15.360 (general rule for choice oflaw in contract claims). 

As to Plaintiffs fraud claim, Oregon law applies because the alleged fraud and the 

resulting injmy occutTed in Oregon, and Plaintiff is domiciled in Oregon. Or. Rev. Stat. § 

15.440(3)(a) ("If both the injurious conduct and the resulting injury occurred in the same state, 

the law of that state governs if either the injured person or the person whose conduct caused the 

injury was domiciled in that state."). I therefore apply Oregon law to Plaintiffs piercing the 

corporate veil theory as to both the breach of contract and fraud claims. 

B. Oregon Law on Piercing the Corporate Veil 

Under Oregon law, the standard for piercing the corporate veil is: 

When a plaintiff seeks to collect a corporate debt from a shareholder by virtue of 

the shareholder's control over the debtor corporation rather than on some other 

theory, the plaintiff must allege and prove not only that the debtor corporation was 

Page -13- OPINION AND ORDER 
under the actual control of the shareholder but also that the plaintiffs inability to 

collect from the corporation resulted from some form of improper conduct on the 

part of the shareholder. 

Amfac Foods, Inc. v. Int'! Sys. & Controls Corp., 294 Or. 94, 108, 654 P.2d 1092, 1101 (1982). 

"[I]n Oregon, piercing the corporate veil 'is an extraordinary remedy which exists as a last resort, 

where there is no other adequate and available remedy to repair the plaintiffs injury."' 

Hambleton Bros. Lumber Co. v. Balkin Enter., Inc., 397 P.3d 1217, 1228 (9th Cir. 2005) 

(quotingAmft1c Foods, 294 Or. at 103, 654 P.2d at 1098). 

C. Application of Oregon Law to Piercing the Corporate Veil 

To show that piercing the corporate veil is justified as a matter of law, Plaintiff must 

establish the three elements of the Anifac Foods test: control, wrongful conduct, and causation. 

Anifac Foods, 294 Or. at 108-09, 654 P.2d at 1101. As to control, I conclude that Plaintiff has 

shown as a matter oflaw that Ludwick actually controlled Prevo! and ANF, shown by his sole 

ownership of ANP, his role as managing partner and sole member of Prevo!, and his day-to-day 

operation of both companies. See ELD Prods, LTC v. Technical Plastics of Oregon, LLC, No. 

05-cv-556-KI, 2006 WL 3628062, at *5 (D. Or. Dec. 11, 2006) (determining as a matter of law 

that the individual defendant controlled the business at issue). As to wrongful conduct, Plaintiff 

has also shown as a matter of law that Ludwick commingled his personal assets with the assets of 

Prevo! and ANP. See Amft1c Foods, 294 Or. at 109-10, 654 P.2d at 1102 (wrongful conduct 

includes "commingling of assets"). Plaintiff has shown that Ludwick had no personal bank 

accounts, but rather paid himself and his personal bills, including his mmtgage, from Prevol's 

bank account. See PI. 's Mot. Summ. J. 6, ECP No. 137. As to causation, however, I conclude 

that Plaintiff has not shown as a matter of law that Ludwick's wrongful conduct caused Plaintiff 

Page -14- OPINION AND ORDER 
to be unable to collect from Frevol and ANF because Plaintiff has not yet established 

Defendants' liability, if any, to Plaintiff. The causation issue must await the determination of 

liability by a jmy. BLD Prods., 2006 WL 3628062, at *6. I therefore conclude that Plaintiff "is 

entitled to pierce the corporate veil, making [Ludwick] personally liable, but that the amount [if 

any] for which [Ludwick) is personally liable will have to be determined by the jmy." Id. 

CONCLUSION 

For the reasons provided above, Defendants' Amended Motion to Dismiss, ECF No. 130, 

is DENIED. Defendants' Second Motion for Summary Judgment, ECF No. 136, is GRANTED 

as to Plaintiffs claim for breach of contract against Defendant ANF, and as to Plaintiffs piercing 

the corporate veil theoty as to the claim for breach of contract against Defendant ANF, and 

othetwise DENIED. Plaintiffs Motion for Partial Summmy Judgment, ECF No. 137, is 

GRANTED in part as to piercing the corporate veil, and GRANTED as to the existence and 

terms of the parties' contract and as to Defendants' statute of frauds defense. 

ITIS SO ORDERED. 

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Ho~orable Paul Papak I 

United States Magistrate Judge