Case 5:10-cv-00140-C Document 43

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ) ) ) ) ) ) ) ) )

DOUG FRIESEN, Plaintiff, v. CHARLES N. ERB, Jr., Defendant.

Case No. CIV 10-140-C

PLAINTIFF’S FIRST AMENDED COMPLAINT COMES NOW, Plaintiff Doug Friesen, by and through his attorney of record, Jacob L. Rowe, and alleges as follows: 1. Plaintiff Doug Friesen, hereinafter referred to as "Friesen," is now and was at all times relevant to this litigation a resident of the City of Oklahoma City, State of Oklahoma, and presently resides within the jurisdictional bounds of this Court. 2. Defendant Charles N. Erb, Jr., hereinafter referred to as "Erb," is now and was at all times relevant to this litigation a resident of the State of Pennsylvania. 3. The amount in controversy in this action exceeds two million dollars ($2,000,000.00). FACTUAL ALLEGATIONS 4. During calendar year 1986 Erb manufactured or caused to be manufactured a STEN II sub-machine gun marked with serial number “E683,” the same being referred to herein as “the firearm.”
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5.

At the time the firearm was manufactured, Erb was licensed to manufacture firearms by the federal government and was in the business of doing so.

6. 7.

Defendant placed the firearm into the normal stream of commerce. Defendant, by placing the firearm in the normal stream of commerce represented the same was adequately manufactured and was safe for its intended use, namely possession.

8.

Defendant represented to the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) that the firearm was manufactured in compliance with applicable federal law and registered the same as being appropriately labeled with serial number “E683.”

9.

In calendar year 1996 Plaintiff acquired the necessary tax stamps and duly purchased the firearm, taking possession of the same.

10.

At the time of the purchase of the firearm, Plaintiff was also duly possessed of a Federal Firearm’s License (“FFL”) allowing him to commercially buy and sell firearms and other similar products.

11.

Defendant knew or should have reasonably known that an individual with an FFL, Friesen here, would possess the firearm.

12.

The firearm was defective in that it was unreasonably dangerous to all persons who possessed or reasonably expected to possess it as follows;

13.

The firearm did not contain adequate identifying information as required by federal law, namely 18 U.S.C.A. 923 and 27 C.F.R. 478.92;

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14.

The firearm did not contain adequate instructions as to the potential liability to the end user for possessing a STEN II with inadequate identifying information;

15.

The design and manufacture of the firearm was defective in that the “manufactured serial number,” original serial number, and other identifying information was not clearly identified on the firearm itself, thus creating confusion and uncertainty as to its identity and origin;

16.

The design and manufacture of the firearm failed to comply with the customary and usual practices, procedures, and standards generally recognized as applicable to the design and manufacture of similar products;

17.

Defendant directed and or permitted the above acts in violation of the customary and usual procedures which were then and there existing and generally recognized and accepted by persons possessing the same or similar expertise as Defendant;

18.

The firearm was negligently designed and manufactured in that Defendant failed to discover and correct said defects or warn of their existence;

19.

Defendant failed to exercise his post-sale duty to warn of such dangers or to modify the firearm to eliminate said defects and the attendant hazards;

20.

Defendant failed to warn or instruct that such product should be returned to Defendant to remedy such defects;

21.

The firearm was defective when it left Defendant’s control;

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22.

Defendant, when he placed the firearm in the normal stream of commerce knew or should have known that the firearm was improperly marked and posed an unreasonable danger to any person possessing the same;

23.

Defendant was aware, at the time of the firearm’s manufacture, of the implementation of the Firearm Owners’ Protection Act, the same prohibiting the sale of machine guns manufactured in the United States after May 19, 1986;

24.

Defendant was aware of the increased demand for STEN II sub-machine guns and the limited time with which he could manufacture such weapons;

25.

In order to produce as many machine guns as possible before he was prohibited from doing so, Defendant began aggressively manufacturing STEN II submachine guns such as the firearm Plaintiff purchased;

26.

Defendant failed or refused to implement the necessary quality control procedures to ensure that the newly manufactured STEN II sub-machine guns, including the firearm here, were marked in compliance with federal law;

27.

Defendant owed a duty to Plaintiff and other consumers to produce a product that is fit for its intended and ordinary use;

28.

Defendant owed a duty to Plaintiff and other consumers to produce a product that is not unreasonably dangerous or hazardous to those who purchase and or possess it;

29.

Defendant owed a duty to Plaintiff and other consumers to produce a product that is compliant with federal law;
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30.

Defendant was negligent in that he manufactured a product which was not fit for its intended and ordinary use;

31.

Defendant was negligent in that he produced a product that was unreasonably dangerous and hazardous to Plaintiff;

32.

Defendant was negligent in failing to warn of the dangers of possessing an improperly marked firearm;

33.

Defendant was negligent in failing to correct the firearm’s design and manufacturing defects;

34.

Defendant was negligent per se in failing to manufacture the firearm in compliance with existing federal law;

35.

As a result of Defendant’s negligent conduct, the firearm purchased by Plaintiff was marked with inadequate and confusing identifying information;

36.

Defendant knew or should have known that the firearm would be purchased and or possessed by an FFL such as Plaintiff;

37.

All individuals in possession of an FFL are subject to one (1) warrantless inventory compliance inspection per year (“inspection”), the same to be conducted by the ATF;

38.

During the course of such inspections, ATF agents review an FFL’s records in regard to the FFL’s acquisition and disposition of firearms and compare the serial numbers of existing inventory with the FFL’s acquisition and disposition records;

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39.

Possession of an unregistered firearm such as the firearm here is a federal felony;

40.

During 2003 Friesen was selected for an inspection and the same was conducted by the ATF;

41.

During the course of this inspection ATF inspectors reviewed Plaintiff’s record of firearm acquisition and disposition and compared the serial numbers from his existing inventory to the same;

42.

ATF agents were unable to locate the serial number of the firearm and or were confused as to which markings on the firearm constituted the serial number;

43.

The firearm was manufactured by Defendant and the same firearm for which Plaintiff obtained the appropriate federal approval to purchase and of which he took possession;

44.

As a result of the inadequate and confusing markings on the firearm, the firearm was ultimately confiscated by the ATF;

45.

As a result of the inadequate and confusing markings on the firearm Plaintiff was arrested and charged with possession of an unregistered machine gun;

46. 47.

Plaintiff obtained counsel and the matter was tried before this Court; Plaintiff was not convicted of any crime involving his possession of the allegedly unregistered firearm;

48.

On April 13, 2009 Plaintiff plead guilty to a Superseding Information containing one count of failing to maintain an acquisition and disposition record in compliance with federal law;
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49.

On July 28, 2009 the Indictment charging Plaintiff with possession of an unregistered firearm was dismissed;

50.

Defendant’s negligence and or defective design and manufacture of the firearm were the direct cause of Plaintiff’s injury;

51. 52.

The damages sustained by Plaintiff were reasonably foreseeable by Defendant; Defendant’s conduct exhibited a wanton disregard for the rights of Plaintiff, those who ultimately purchased other sub-machine guns manufactured by him, and the public at large;

53.

Plaintiff has suffered the following damages as a result of Defendant’s defective design and manufacture of the firearm and or negligence and fraudulent actions: A. B. C. D. Attorney Fees; Expert Witness Fees; Assorted Trial Expenses; Non-Economic Damages, including but not limited to, emotional and mental anguish. WHEREFORE, premises considered, Friesen prays for damages in excess of two

million dollars ($2,000,000.00), costs, and attorney fees as well as any other relief this Court deems equitable, just, and available according to law.

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Respectfully submitted,

/S/ JACOB L. ROWE ____________________________________ Jacob L. Rowe, OBA No. 21797 Jacob L. Rowe, P.C. 1309 N. Shartel Avenue Oklahoma City, OK 73103 Phone - 405-239-2722 Fax - 405-235-2453 Attorney for Plaintiff

JURY TRIAL DEMANDED

ATTORNEY'S LIEN CLAIMED

CERTIFICATE OF SERVICE I hereby certify that on February 8th, 2012 I electronically transmitted the above document to the Clerk of Court using the ECF System for filing.

/S/ JACOB L. ROWE ____________________________________ Jacob L. Rowe
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