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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

MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT WITH BRIEF IN SUPPORT COMES NOW Defendant, Charles N. Erb, Jr., through counsel, Joseph L. Wells, and moves pursuant to Federal Rule of Civil Procedure 12 to dismiss the document that is titled Plaintiffs First Amended Complaint (ECF Doc. No. 43). Defendant believes that ECF Doc. 43 is properly titled Plaintiffs Second Amended Complaint, as properly reflected on this Courts docket sheet, and once again puts all matters in the case at issue. PROCEDURAL HISTORY Plaintiff, Doug Friesen, filed a Complaint (ECF Doc. No. 1) on February 12, 2010. Defendant, Charles N. Erb, Jr., filed a Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(6) With Brief in Support on April 6, 2010. (ECF Doc. No. 9). On June 2, 2010, this Court entered an Order granting Defendants Motion to Dismiss. (ECF Doc. No. 11). On June 21, 2010, Plaintiff filed a First Amended

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Complaint. (ECF Doc. No. 12). On June 29, 2010, Defendant filed a Motion to Dismiss First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF Doc. No. 13). This Court entered an Order denying Defendants Motion to Dismiss August 31, 2010, (ECF Doc. No. 16), and amended that Order on September 7, 2010, (ECF Doc. No. 22). On August 15, 2011, Defendant filed a Motion for Judgment Pursuant to Federal Rule of Civil Procedure 12(c). (ECF Doc. No. 28). This Court denied that Motion on November 3, 2011. (ECF Doc. No. 33). On February 8, 2012, Plaintiff filed a document titled Plaintiffs First Amended Complaint. (ECF Doc. No. 43). Document Number 43 no longer claims as damages Lost Income. Counsel for defendant was informed via letter that Plaintiff would be dismissing the claim for damages in regard to loss of business and would not produce the tax records requested in discovery. (Letter attached as Exhibit 1.) ARGUMENT AND AUTHORITIES Plaintiffs Second Amended Complaint should be dismissed for three reasons. First, this Court does not have subject matter jurisdiction because the damages cited by Plaintiff cannot meet the amount in controversy requirement. Second, this Court does not have subject matter jurisdiction over Defendant because Defendants limited contacts with Oklahoma fail to satisfy the standards of general jurisdiction principles
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or specific jurisdiction principles. Finally, Plaintiff has failed to state an actionable claim against Defendant. I. Dismissal Is Warranted Under 12(b)(1) Because This Court Does Not Have Subject Matter Jurisdiction This Court does not have subject matter jurisdiction over Defendant because the amount in controversy does not exceed $75,000. In considering a motion to dismiss pursuant to Rule 12(b)(1), a court must determine whether it has subject matter jurisdiction over the parties claims. Rule 12(b)(1) motions are either facial or factual attacks on the sufficiency of the complaint: Under a facial attack, the movant merely challenges the sufficiency of the complaint, requiring the district court to accept the allegations in the complaint as true. In a factual attack ... however, the movant goes beyond the allegations in the complaint and challenges the facts upon which subject matter jurisdiction depends. In such a situation, the court must look beyond the complaint and has wide discretion to allow documentary and even testimonial evidence under Rule 12(b)(1).

Paper, Allied-Industrial, Chemical And Energy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005) (citations omitted). A court need not convert a 12(b)(1) motion to one for summary judgment when considering matters outside the pleadings. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a
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Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. Id. The jurisdictional question is intertwined with the merits when subject matter jurisdiction is dependent on the same statute as the substantive claim. Id. The party invoking federal jurisdiction bears the burden of proving the facts necessary to establish such jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182, 189 (1936). If the plaintiff claims an amount that satisfies the amount in controversy requirement, that sum controls if apparently made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). A claim is not made in good faith if it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed. Id. at 289; see Emland Builders, Inc. v. Shea, 359 F.2d 927, 930 (10th Cir. 1966) (lack of good faith in making the jurisdictional allegations can exist when from the proofs a court is satisfied to a legal certainty that the plaintiff never was entitled to recover the jurisdictional amount). The legal certainty standard is very strict, and dismissal under the standard is generally warranted only when a contract limits the possible recovery, when the law limits the amount recoverable, or when there is an obvious abuse of federal court jurisdiction. Woodmen of World Life Ins. Soc'y v. Manganaro, 342 F.3d 1213, 1216-17 (10th Cir. 2003).
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Here, the claimed amount is not made in good faith. In Paragraph 53 of the second amended complaint, Plaintiff claims: D. Non-Economic Damages, including but not limited to, emotional and mental anguish. (ECF Doc. No. 43 at 7). In its Order Denying Defendants Amended Motion to Compel (ECF Doc. No. 46), this Court found that Plaintiff failed to offer any response to the request for support for claims of emotional pain. The Court found that claim has been abandoned and Plaintiff would not be permitted to pursue it at trial. (ECF Doc. No. 46 at 2). Thus, the only alleged damages that are still at issue in the case are Attorney Fees, Expert Witness Fees, and Assorted Trial Expenses. While counsel is in receipt of an affidavit of loss and a spreadsheet with Plaintiffs claimed expenses of $161,000 for these fees and expenses, no claimed amount for these specific damages is pled in the Second Amended Complaint. Moreover, counsel has been provided no actual receipts, cancelled checks, or other documentation to corroborate this claimed amount. Thus, this Court does not have subject matter jurisdiction, and dismissal is warranted. II. Dismissal Is Warranted Under 12(b)(2) Because This Court Does Not Have Personal Jurisdiction Over Defendant Erb This Court cannot exercise personal jurisdiction over Defendant because Defendant has no contacts in Oklahoma. Plaintiff cannot prove that this Court possesses personal jurisdiction over Defendant based either on general jurisdiction

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principles or specific jurisdiction principles. Even if Plaintiff could meet the minimum jurisdictional standards, Defendant asks this Court to decline to exercise personal jurisdiction over Defendant based on traditional notions of fair play and substantial justice. In considering a motion to dismiss pursuant to Rule 12(b)(2), a court must determine whether the plaintiff has alleged sufficient facts to establish the Court's personal jurisdiction over the defendant. If the district court does not hold an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065 (10th Cir. 2007). Plaintiff can make no such showing in this case. A. Plaintiff Cannot Prove That Defendant Is Subject To General Jurisdiction In Oklahoma General jurisdiction, the first basis for personal jurisdiction, does not apply here because Defendant has no continuous and systematic business contacts in Oklahoma. When the defendant has continuous and systematic general business contacts with the forum state, courts in that state may exercise general jurisdiction over the defendant. Helicopteros Nacionales de Colombia, S.A., v. Hall, 466 U.S. 408, 414-15 (1984). Defendant simply has no such contacts, and general jurisdiction thus does not apply.

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B. Plaintiff Cannot Prove That Defendant Is Subject To Specific Jurisdiction In Oklahoma Nor can Plaintiff prove that Defendant is subject to specific jurisdiction in Oklahoma because Defendant does not have sufficient minimum contacts with the forum. To determine whether the defendant has sufficient minimum contacts with the forum, the court looks to whether the defendant purposefully directed its activities at residents of the forum, and whether there is a nexus between the plaintiff's claim and those contacts. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). Second, if the defendant's actions create sufficient minimum contacts, we must then consider whether the exercise of personal jurisdiction over the defendant offends traditional notions of fair play and substantial justice. This latter inquiry requires a determination of whether a district court's exercise of personal jurisdiction over a defendant with minimum contacts is reasonable in light of the circumstances surrounding the case. Id. Here, Defendant does not have sufficient minimum contacts with Oklahoma. Even if he did, an exercise of jurisdiction over him would not be reasonable. 1. Minimum Contacts The first step of the minimum contacts analysis is to determine whether the defendant purposefully directed their activities at residents of the forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); see also Keeton v. Hustler

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Magazine, Inc., 465 U.S. 770 (1984). The defendants conduct must be such that he should reasonably anticipate being haled into court there. Burger King, 471 U.S. at 474 (citations omitted). No such conduct exists here. Mr. Erb has been to Oklahoma only one time and that was as a witness for the government in case number CR-08-41-L in the Western District of Oklahoma. Mr. Erb does no business in Oklahoma. Mr. Erb does no advertising in Oklahoma. Mr. Erb has no friends in Oklahoma. Mr. Erb pays no taxes in Oklahoma. Thus, there was no effort by Defendant to purposefully avail himself of the privilege of conducting activities within Oklahoma. See Rambo v. Am. So. Ins. Co., 839 F.2d 1415, 1419 (10th Cir. 1988). Even if Defendant did have sufficient contacts to support specific jurisdiction, there must be a nexus between these contacts and Plaintiffs claims. See Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 109 (1987). Here, the only real connection between this lawsuit and Oklahoma is the happenstance of Plaintiffs domicile in Oklahoma. The happenstance of unilateral action by the plaintiff or mere fortuity cannot support specific jurisdiction. Courts have found no nexus between the defendants contacts with the forum and the litigation where the plaintiff brought the defendants product into the forum state, Asahi, 480 U.S. 102; World-Wide Volkswagen Co. v. Woodson, 444 U.S. 286 (1980); cf. Bell Helico
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Textron, Inc. v. Heliquest Int'l, Ltd., 385 F.3d 1291, 1296-97 (10th Cir. 2004) (lessee brought lessor's product into the forum state). Here, Plaintiff, not Defendant, caused the firearm at issue to be brought into Oklahoma. 2. Reasonableness Because Defendant does not have sufficient minimum contacts with Oklahoma to support jurisdiction, this Court need not even determine whether the exercise of that jurisdiction would be reasonable under the circumstances. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). However, should the Court examine the reasonableness, Defendant should likewise prevail. In making this determination, courts are to consider: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. The strength of these factors sometimes serves to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. Conversely, the factors may be so weak that even though minimum contacts are present, subjecting the defendant to jurisdiction in that forum would offend due process. OMI, 149 F.3d at 1095 (citations omitted).

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The primary factor that entitles Defendant to prevail is the first, the burden on him of litigating in Oklahoma. Mr. Erb is an older gentleman receiving Social Security. Litigating this case in Oklahoma is a severe economic burden, to say the least. i. Burden on Defendant of Litigating in Oklahoma

While not dispositive, the burden on the defendant of litigating the case in a foreign forum is of primary concern in determining the reasonableness of personal jurisdiction. Id. The burden on Defendant of litigating in Oklahoma would be significant because Defendant is retired and resides in Pennsylvania. He has traveled to Oklahoma only a single time and that was when he was a witness in U.S. vs. Friesen, case number CR-08-41-L. Thus, the burden on him to litigate in Oklahoma has already been considerable, and it would be even greater should the matter proceed to trial. ii. Forum State's Interest in Resolving the Dispute

The second factor in our reasonableness inquiry examines the forum state's interest in adjudicating the dispute. OMI, 149 F.3d at 1096. Oklahoma does not have an interest in determining whether a Pennsylvania firearm manufacturer properly manufactured firearms.

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iii.

Plaintiff's Interest in Convenient and Effective Relief

The third step in our reasonableness inquiry hinges on whether the plaintiff may receive convenient and effective relief in another forum. OMI, 149 F.3d at 1097. There is no reason that Plaintiff could not receive convenient and effective relief in another forum. iv. Interstate Judicial System's Interest in Obtaining Efficient Resolution of the Dispute

The fourth factor in our reasonableness inquiry examines whether the forum state is the most efficient place to litigate the dispute. Key to this inquiry are the location of witnesses, where the wrong underlying the lawsuit occurred, what forum's substantive law governs the case, and whether jurisdiction is necessary to prevent piecemeal litigation. OMI, 149 F.3d at 1097 (citations omitted). Potential witnesses are located in Pennsylvania. v. States' Interest in Furthering Fundamental Substantive Social Policies

Analysis of this factor focuses on whether the exercise of personal jurisdiction by [Oklahoma] affects the substantive social policy interests of other states or foreign nations. OMI, 149 F.3d at 1097. Pennsylvania has an interest in ensuring that its residents receive adequate and appropriate legal protections.

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III.

Dismissal is Warranted Because Plaintiff Fails to State a Claim Upon Which Relief Can be Granted As discussed above, Plaintiffs only alleged damages that are still at issue in

the case are Attorney Fees, Expert Witness Fees, and Assorted Trial Expenses. These alleged damages do not support a cause of action on which this Court can grant relief, regardless of the theory of recovery Plaintiff seeks to pursue. In addition to the grounds raised in Defendants motions to dismiss on earlier complaints in the case, which Defendant urges the Court to reconsider, Plaintiffs elimination of Lost Income and the Courts ruling that Plaintiff may no longer pursue damages for emotional pain create additional reasons why dismissal is warranted. In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss a complaint for failure to state a claim should be granted only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citation omitted). The complaint must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The factual allegations in the complaint must be enough to raise a right to relief above the speculative level. Id. at 555 (citations

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omitted). Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. at 563. When deciding whether to grant a motion to dismiss, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the claimant. Id. at 555. [C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). In sum, the claimant must allege facts sufficient to state a claim for relief that is plausible on its face. Twombly, 550 U.S. at 570. A. Plaintiff has Failed to State a Products Liability Claim

Here, Plaintiff fails to allege a personal injury that would allow for recovery under a products liability claim. The only alleged damages still at issue in the case are Attorney Fees, Expert Witness Fees, and Assorted Trial Expenses. These are pure economic damages rather than personal injury. In order to state a claim for manufacturers products liability under Oklahoma law, plaintiff must prove the products was the cause of the injury, that the product was the cause of the injury, that the product was defective when it left the control of the manufacturer, and that the defect made the product unreasonably dangerous beyond which would be contemplated by the ordinary consumer who purchases it.
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Gray v. Hoffman-La Roche, Inc., 82 Fed. Appx. 639, 651 n.6 (10th Cir. 2003) (internal quotations and citations omitted). Purely economic damages are not cognizable under Oklahomas products liability regime. The Oklahoma Supreme Court has ruled that the states product liability regime is not implicated [w]hen purely economic damages occur and there is no damage to person or other property. Dutsch v. Sea Ray Boats, 845 P.2d 187, 193 (Okla. 1992). Damages do not encompass attorneys fees. See Summit Valley Indus., Inc. v. Local 112, United Brotherhood of Carpenters and Joiners of Am., 456 U.S. 717, 72223 (1982) (citations omitted) ([T]he American Rule presumes that the word damages means damages exclusive of fees. . . . . Thus, attorney's fees are only included in a damages award when Congress intend[s] to give a broader scope to the term damages.) Here, Defendant was not a party to the criminal case. Even if attorneys fees were at issue in Plaintiffs criminal case, they would not be charged to Defendant, a non-party. As such, Plaintiffs alleged economic damages fail to support an action in products liability. B. Plaintiff Has Failed to State a Negligence Claim

To state a claim for negligence under Oklahoma law, plaintiff must establish the concurrent existence of a duty on the part of the defendant to protect the plaintiff from injury; a failure of the defendant to perform that duty; and an injury to the
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plaintiff resulting from the failure of the defendant. Gray, 82 Fed. Appx. at 651 n.6 (internal citations and quotations omitted). Actual loss or damages is an essential element for a cause of action grounded in negligence. Moore v. Delivery Services, Inc., 1980 OK CIV APP 38, 618 P.2d 408, 409 (citation omitted). Here, there is no injury to Plaintiff. Once again, the only alleged damages still at issue in the case are Attorney Fees, Expert Witness Fees, and Assorted Trial Expenses. The cost of defending oneself in a criminal trial is not a personal injury. Once again, damages do not encompass attorneys fees. See Summit Valley Indus., Inc., 456 U.S. at 72223 (citations omitted). Thus, Plaintiff has not alleged an injury that is cognizable under Oklahoma law on negligence claims. Conclusion This Court should dismiss Plaintiffs Second Amended Complaint. First, this Court does not have subject matter jurisdiction because the damages cited by Plaintiff cannot meet the amount in controversy requirement. Second, this Court does not have subject matter jurisdiction over Defendant because Defendants limited contacts with Oklahoma fail to satisfy the standards of general jurisdiction principles or specific jurisdiction principles. Finally, Plaintiff has failed to state an actionable claim against Defendant under either a products liability theory or a negligence theory. For the foregoing reasons, Defendant requests judgment in his favor.
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Respectfully submitted,

s/Joseph L. Wells JOSEPH L. WELLS, OBA #9470 Attorney for Defendant, Charles N. Erb, Jr. 3955 Northwest 23rd Street Oklahoma City, OK 73107 Telephone: (405) 942-8800 Fax: (405) 947-1937 Email: joewells@swbell.net CERTIFICATE OF SERVICE I hereby certify that on the 27th day of February, 2012, I electronically transmitted the attached document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jacob L. Rowe Attorney for Plaintiff

s/Joseph L. Wells JOSEPH L. WELLS OBA # 9470

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