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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 RESPONSE TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT WITH BRIEF IN SUPPORT THEREOF Comes now Plaintiff Doug Friesen, by and through his counsel Jacob L. Rowe, and objects to Defendant Charles N. Erb, Jr.’s Motion to Dismiss Plaintiff’s Second Amended Complaint (“Motion to Dismiss”). In support of his objection, Plaintiff submits the following: I. Procedural History Plaintiff, Doug Friesen (hereinafter “Friesen”), filed his Complaint (Dkt. 1) on February 12, 2010 seeking damages as against Defendant Charles N. Erb, Jr. (hereinafter “Defendant”). Defendant Charles Erb, Jr. (hereinafter “Erb”) filed a Motion to Dismiss (Dkt. No. 9) on April 6, 2010. This Court sustained that motion on June 2, 2010 (Dkt. 11). On April 21, 2010 Plaintiff filed his Amended Complaint (Dkt. 12) on June 21, 2010. Erb again sought dismissal of this action by filing his Motion to Dismiss Amended Complaint (Dkt. 12) on June 29, 2010. This Court overruled this motion on August 31, 2010 (Dkt. 16). Defendant later, on August 15, 2011, filed his Motion for Judgment
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Pursuant to Federal Rules of Civil Procedure 12(c) (Dkt. 29). This Court denied the same on November 3, 2011 (Dkt. 33). On February 8, 2012, Plaintiff filed his Second Amended Complaint (Dkt. 43) in order to conform his request for relief such that no damages were being sought for Plaintiff’s lost income or the lost productivity of his law office. On February 27, 2012, Defendant filed his Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 48). II. Argument and Authority. Defendant alleges in his Motion to Dismiss that this matter should be dismissed because: (1) this Court lacks subject matter to determine this matter due to an insufficient amount in controversy; (2) this Court lacks personal jurisdiction over Erb given his contact with the State of Oklahoma; and (3) Plaintiff has failed to state an actionable claim against Erb. Plaintiff requests Erb’s Motion to Dismiss be denied. Friesen has plead damages in excess of one hundred sixty thousand dollars ($160,000.00), more than the required jurisdictional minimum. Friesen also contends that Erb, through the

operation of his firearms manufacturing business, had sufficient minimum contacts with this State for this Court to exercise jurisdiction. Lastly, Plaintiff has pleaded facts sufficient to uphold a cause of action against Erb.

A.

Plaintiff has pleaded damages in excess of the statutory minimum set forth in 28 U.S.C.A. 1332.

This Court is possessed of subject matter jurisdiction in this matter based upon diversity. This Court has “original jurisdiction all civil actions where the matter in
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controversy exceeds the sum or value of $75,000.00” and complete diversity exists as between the parties.1 28 U.S.C.A. 1332. As mentioned by Defendant, it is the obligation of the Plaintiff to allege damages sufficient to meet the seventy five thousand dollar ($75,000.00) threshold amount. See McNutt v. Gen. Motors Acceptance Corp. of

Indiana, 298 U.S. 178, 182, 189 (1936). Jurisdiction is proper where a plaintiff alleges damages in excess of the minimum amount in “good faith,” unless there exists a “legal certainty’ that plaintiff is not entitled to or cannot otherwise recover the amount alleged. See Emland Builders, Inc. v. Shea, 359 F.2d 927, 928-29 (10th Cir. 1966). Additionally, the amount sought by a plaintiff is examined at the time the allegations are made. Id. at 929. Lastly, “a change in circumstances after the suit is commenced will not necessarily result in a loss of jurisdiction.” Id. at 929, referencing Aetna Cas. & Surety Co. v. Flowers, 330 U.S. 464, 67 S.Ct. 798, 91 L.Ed. 1024. Here, Plaintiff has alleged damages in good faith in excess of the statutory minimum. He pleaded damages incurred as a result of attorney fees, witness fees, and assorted trial fees expended as a result of the criminal trial which resulted from Defendant’s defectively manufactured firearm. The amount of said damages is one

hundred sixty one thousand five hundred thirty dollars and forty five cents ($161, 530.45). Plaintiff disclosed this amount to Defendant in the form of the Affidavit of Doug Friesen Regarding Fees and Expenses Paid of Criminal Defense of Western District Case No. CR-08-041-L. The same is attached hereto as Exhibit 1. Additionally, Plaintiff

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Defendant’s Motion to Dismiss addresses only the amount in controversy. There is no dispute that diversity of citizenship exists between these parties.

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pleaded non-economic damages for mental pain and suffering in his Second Amended Complaint. However, this Court has excluded the presentation of any such evidence of the same in trial in this matter. (Dkt. 46, 50). Defendant should be denied the relief requested. Plaintiff has in good faith alleged damages in excess of seventy five thousand dollars ($75,000.00). The amount he seeks to recover for his defense in CR-08-041-L exceeds this amount. Further, at the time of the filing of his Second Amended Petition, Plaintiff sought additional damages for mental pain and suffering. Certainly, as argued by Defendant, these damages have now been excluded, but at the time of the filing Plaintiff sought them in good faith. As the analysis as to the amount in controversy focuses on the time the allegations were made, it is clear that Plaintiff has alleged damages sufficient for this Court to exercise jurisdiction over this matter. B. Personal jurisdiction over Defendant is proper in this Court.

This Court is vested with personal jurisdiction over Defendant for two reasons. First, Defendant has waived the availability of the defense of lack of personal jurisdiction. Second, Defendant’s contacts with the State of Oklahoma are sufficient to bring him within the reach of Oklahoma’s long –arm statute. 1. Defendant has waived the availability of the defense of lack of personal jurisdiction. Defendant was served with Plaintiff’s Complaint more than two (2) years ago and has failed to raise the issue of personal jurisdiction until now. Plaintiff contends that

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Defendant has waived his ability to properly question the personal jurisdiction of this Court. Rule 12 of the Federal Rules of Civil Procedure grant a defendant the ability to challenge the jurisdiction of the court over his or her person. Fed.R.Civ.P. 12(b)(2). However, a defendant must raise this issue in his or her initial responsive pleading, else the defense is wavied. Fed.R.Civ.P. 12(h). Such objections to a court’s personal

jurisdiction should be made as early as possible and are waived if not raised at the first available opportunity. See United States v. 51 Pieces of Real property, Roswell, N.M., 17 F.3d 1306, 1314 (10th Cir. 1994). Lastly, a defendant may also voluntarily subject him or herself to a court’s jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 725 (1878).

In this matter, Defendant has waived his argument as to this Court’s jurisdiction over his person and, through his active participation in this matter, has assented to the same. Defendant was served in this matter on Febraury 17, 2010 in his home state of Pennsylvania. (Dkt. 5). Defendant’s counsel entered his appearance in this matter on March 4, 2010 (Dkt. 6) and on that same date sought relief from this Court by way of his Unopposed Motion for Continuance to Answer or Otherwise Plead (Dkt. 7) which this Court granted (Dkt. 8). Defendant next sought this Court’s assistance with the filing of his Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12 (b)(6) (Dkt. 9) which was also granted by this Court (Dkt. 11). Defendant made no request of this Court to dismiss this action based upon a lack of personal jurisdiction at that time. Plaintiff filed his First Amended Complaint (Dkt. 12) on June 21, 2010 and Defendant again sought dismissal of this action (Dkt. 13). In requesting dismissal of this
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action at that time, Defendant again failed to advance any argument regarding the personal jurisdiction of this Court. Ultimately, the Court denied Defendant’s Motion to Dismiss (Dkt. 16). Defendant again sought relief from this Court on August 31, 2010 in his Unopposed Motion to Continue Answer or Otherwise Plead (Dkt. 17) and Unopposed Motion to Continue Joint Status Conference and Discovery Plan (Dkt. 19). Both requests were granted by this Court prior to Defendant filing his Answer to Amended Complaint (Dkt. 23). Defendant next sought relief from this Court by filing his Motion for Judgment Pursuant to Federal Rules of Civil Procedure 12(c) (Dkt. 29) on August 15, 2011. This motion was denied on November 3, 2011 (Dkt. 33). Defendant has also sought relief. Defendant failed to advance any argument in favor of dismissal regarding this Court’s jurisdiction over his person in any of the above referenced filings. Additionally, the record is clear that Defendant has assented to this Court’s personal jurisdiction as he has begun preparations for trial in this matter. He has filed a list of Expert Witnesses (Dkt. 34). He has also conducted discovery and sought relief from this Court to that end. (Dkt. 38, 41). Lastly, Defendant’s counsel has made numerous appearances before this Court in furtherance of this matter. He appeared for the Joint Status and Discovery Conference on May 2, 2011. No argument was had on that date as to the appropriateness of this Court’s jurisdiction. Additionally, Defendant’s counsel has appeared before this Court on

numerous occasions regarding discovery and evidentiary disputes and has, previous to the
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filing of his most recent motion, never questioned this Court’s jurisdiction over the person of Defendant. Although Defendant’s counsel argues that the filing of Plaintiff’s Second Amended Petition “once again puts all matters at issue in this case,” it is undisputed that Defendant’s argument regarding this Court’s personal jurisdiction have been waived. His claims regarding personal jurisdiction come more than two (2) years after the initiation of this action and after Defendant’s counsel has sought extensive relief from this Court in the matter. Obviously, Defendant’s request for dismissal based upon personal Accordingly,

jurisdiction were not advanced as early as possible and are waived.

Plaintiff prays this Court deny Defendant’s request for dismissal based upon personal jurisdiction. 2. Defendant is within reach of Oklahoma’s Long Arm Statute. Oklahoma’s long arm statute permits the exercise of jurisdiction consistent with the farthest reach allowable under due process. Intercom, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). Due process allows the exercise of jurisdiction over a person “so long as there exist minimum contacts between the defendant and the forum State.” Id. at 1247, Quoting World-Wode Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). These “minimum contacts” may be satisfied: (1) through specific jurisdiction “if the defendant has purposefully directed his activities at residents of the forum, and litigation results from alleged injuries,” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); or through personal jurisdiction based upon a
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defendant’s “continuous and systematic general business contacts” with the forum state, Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984). Provided a defendant meets this “minimum contacts” examination, a Court may refuse to exercise personal jurisdiction when doing so offends traditional notions of “fair play and substantial justice.” Burger King, 471 U.S. at 476. This examination considers all factors in a particular matter to determine whether the court’s exercise of jurisdiction would be reasonable. Id. at 477-78. Here, Defendant alleges that he has insufficient contact with the State of Oklahoma for this Court to exercise jurisdiction over his person. The factual allegations within Plaintiff’s Second Amended Complaint allege that sufficient contacts exist. Defendant was a federally licensed firearms manufacturer. Although he was located in Pennsylvania, Defendant sold firearms to individuals throughout the United States. It was easily foreseeable that a firearm of his making would be purchased by a citizen of Oklahoma. Defendant was possessed of the knowledge that Class III firearms are

purchased by collectors of such weapons and often serve as investments. As such, it is not unsusual for these types of weapons to be purchased and resold numerous times. Moreover, Defendant was also aware that federal law controls the manufacture of fully automatic weapons such as the one at issue here. With this knowledge, Defendant should have reasonably expected one of his firearms to be purchased by a citizen of this state. Defendant further argues that this Court’s exercise of jurisdiction over his person would offend traditional notions of fair play and justice and sets forth a number of factors from Int’l Shoe Co., v. Washington, 326 U.S. 310 (1945). First, Defendant contends that
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the burden of litigating this matter in this state is significant. Plaintiff acknowledges that litigation can be costly in any jurisdiction. However, Defendant has been able to

aggressively pursue this litigation in this forum since its inception. Next, Defendant contends that this State has no interest in adjudicating this matter. Plaintiff disagrees. Many Oklahoman’s own firearms for hunting and for sport. It is of the utmost

importance to protect the rights of Oklahomans to purchase and possess firearms which are safe. The third factor analyzed by Defendant is Plaintiff’s interest in convenient and effective relief. Here, Plaintiff would be severely inconvenienced by the dismissal of this action. Certainly, he may be able to refile this action in another jurisdiction, doing so would prove to be a terrible waste of the resources of this Court and the new court. This Court is familiar with the issues, the matter is currently scheduled for trial, and both parties have counsel who have been advocating for the parties for more than two (2) years. At this time, the Western District of Oklahoma offers the most effective and convenient forum for this matters adjudication. The remaining factors in Defendant’s analysis focus on the interests of the interstate justice system and the states’ interest in furthering substantive social policy. Justice would not be served the dismissal of this action in this jurisdiction and its refilling in another. As mentioned above, this Court is familiar with the parties and the issues present in this matter and its adjudication is proper in this Court. Plaintiff again, respectfully requests that this Court deny Defendant’s request to dismiss this action for lack of personal jurisdiction.

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C.

Plaintiff has sufficiently pleaded a cause of action upon which

relief can be granted as against Defendant. Defendant’s final prayer for relief is that Plaintiff has failed to state a claim upon which relief can be granted. A similar motion was filed by Defendant on June 19, 2010 (Dkt. 13) and was denied by this Court on August 31, 2010 (Dkt. 16). Defendant now requests this Court reexamine his prayer for dismissal in light of the fact that Plaintiff has now been limited to seeking damages only for “Attorney Fees, Expert Witness Fees, and Assorted Trial Expenses.” Defendant contends that there exists no cause of action which would allow Plaintiff to recover these damages. Plaintiff respectfully disagrees. This Court’s duty in ruling on a motion to dismiss for failure to state a claim is to “assess whether plaintiff’s amended complaint is legally sufficient to state a claim upon which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). The Court must do so by viewing all facts as alleged by non-moving party as true and in the light most favorable to him or her. The mere “possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v Schneider, 493 F.3d 1174, 1247 (10th Cir. 2007). Here, Plaintiff has pleaded facts upon which relief can be granted and has a reasonable likelihood of proving those facts at trial. 1. Plaintiff has alleged a products liability action.

Defendant’s first contention is that Plaintiff has failed to state an actionable products liability claim as the only damages sought are economic in nature. He relies
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upon Dutsch v. Sea Ray Boats, 845 P.2d 187 (Okla. 1992) to support his argument that Oklahoma’s “products liability regime is not implicated ‘[w]hen purely economic damages occur and there is no damage to person or other property.” Defendant’s Motion to Dismiss (Dkt. 48), p. 14, Citing Dutsch 845 P.2d at 193. Further, he argues that attorney’s fees may never be recovered as damages, relying upon Summit Valley Indus., Inc. v. Local 112 Brotherhood of Carpenters and Joiners of Am., 456 U.S. 717 (1982). Plaintiff contends that both of Defendant’s assertions are incorrect. First, the holding in Dutsch does not support the proposition that a products liability action cannot proceed if only economic damages are alleged. In Dutsch, the plaintiff sought damages against the manufacturer of a boat which exploded as he tried to start it. The plaintiff sought damages for personal injuries and economic damages for the replacement of the boat. Defendant there appealed alleging that a plaintiff in a products liability action may not recover economic damages for the loss of the allegedly defective product. Relying on Waggoner v. Town & Country Mobile Homes, 808 P.2d 649 (Okla. 1990), the court in Dutsch rejected defendant’s argument, indicating, that “[w]e ruled [in Waggoner] that no action lies in a manufacturer’s products liability for purely economic injury to the product itself” and that “Waggoner was a narrow ruling dealing with the situation where there was damage only to the product itself.” Dutsch, 845 p.2d at 193 (emphasis added). In fact, the court acknowledged that both personal damages and economic damages were recoverable under a theory of products liability. Id. at 193. Here, Plaintiff does not seek economic damages for the loss of the firearm at issue in this matter. Plaintiff seeks damages for the economic damages he sustained as a result
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of Defendant’s defectively manufactured firearm. Plaintiff contends that his criminal trial and the need to advance an aggressive defense were the direct result of Defendant’s conduct. Accordingly, this matter should be allowed to proceed to trial on the merits. Next, Defendant contends that Plaintiff’s attorney’s fees in CIV-08-41-L may not be recovered as damages in a civil trial. Defendant contends that his argument is

supported by Summit Valley Indus., Inc. v. Local 112, United Brotherhood of Carpenters and Joiners of Am., 456 U.S. 717 (1982). Summit simply does not stand for the

proposition that Plaintiff here cannot recover the sought after damages from Defendant. Summit involved the narrow issue of a request for attorney’s fees based upon the Labor Management Relations Act, 29 U.S.C. Sec. 187. The prevailing party contended that it was entitled to reimbursement for its attorney’s fees as the underlying statute allowed the court to award “damages.” The Supreme Court determined that the statute authorizing the underlying cause of action, although allowing for an award of damages, did not contain any provisions authorizing the award of attorney’s fees spent in furtherance of the action. The Supreme Court examined the underlying statute and determined that the damages authorized by underlying statute did not authorize an award of attorney’s fee. Accordingly, the American Rule that “attorney’s fees ‘are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefore” governed should apply. Summit Valley, 456 U.S. at 721. Certainly, Oklahoma follows the American Rule, however it is clear that this rule exists to prevent a prevailing party from seeking reimbursement for his or her attorney’s fees from an opposing, non-prevailing party, additional legal authority. Twin Creek
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Estates, L.L.C. v. Tipps, 251 P.3d 756, 758 (Okla. Civ. App. 2011). Here, Plaintiff seeks attorney’s fees and costs associated with his defense of CR-08-41-L, not attorney’s fees incurred as a result of this action. Plaintiff is essentially seeking economic damages related to the change in his financial condition as a result of Defendant’s conduct. The facts of this matter are unique in that the financial damages suffered by Plaintiff came in the form of attorney’s fees and costs. The American Rule is not implicated in this matter as Plaintiff does not seek reimbursement of fees associated with this action. An analogous situation would exist if an individual sought damages sounding in products liability from the manufacturer of an automobile, the defective manufacture of which caused it to accelerate suddenly through its owner’s home. The owner of the automobile would certainly be entitled to recover damages for the expenses incurred for architects, carpenters, painters, etc. who performed services repairing the damage to the home. Here, it was Plaintiff’s liberty that was endangered by the defective product, and not his property. As would be the homeowner in this example, Plaintiff is entitled to reimbursement for monies spent repairing the damage created by the defective product. Plaintiff should not be precluded from prosecuting this cause of action simply because the only professional qualified to repair the damage done to Plaintiff was an attorney. Therefore, Plaintiff respectfully requests this Court deny Defendant’s request to dismiss this action. 2. Plaintiff has stated a negligence cause of action.

Defendant is correct in indicating that a successful plaintiff in a negligence action must allege: (1) the existence of a duty owed to the plaintiff by the defendant; (2) the
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failure of defendant to uphold that duty; and (3) injury to the plaintiff proximately caused by defendant’s failure. Berman v. Laboratory Corp. of America, 268 P.3d 68, 72 (Okla. 2011). In this motion, Defendant only attacks the damages element of Plaintiff’s

negligence action. In doing so he primarily relies upon the argument advanced above and supported by Summit Valley. Plaintiff again contends that the holding of Summit Valley is inapposite to the facts before this Court. There, the Supreme Court made a determination that a cause of action authorized by federal statute which allowed “damages” and that such an award did not also authorize an award of attorney’s fees for the prevailing party. Here, Plaintiff is not seeking reimbursement for attorney’s fees incurred in this action as a prevailing party. Plaintiff is seeking economic damages, the form of which was legal fees to defend his liberty from the threat created by Defendant’s defectively manufactured firearm. Plaintiff requests this Court overrule Defendant’s motion to dismiss his negligence cause of action. WHEREFORE, premises considered, Plaintiff humbly requests this Court deny the relief sought by Defendant in his Motion to Dismiss Plaintiff’s Second Amended Complaint with Brief in Support and allow this matter to proceed to trial on the merits.

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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 E-Mail – Jacob.Rowe@Cox.Net Attorney for Plaintiff JURY TRIAL DEMANDED ATTORNEY'S LIEN CLAIMED

CERTIFICATE OF SERVICE I hereby certify that on March 15, 2012 I electronically transmitted the above document to the Clerk of Court using the ECF System for filing and transmittal to: Joseph L. Wells 3955 N.W. 23rd Street Oklahoma City, Oklahoma 73107

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

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