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Somerlott v. McNeilus Truck And Manufacturing, Inc.

United States District Court, W.D. Washington, Seattle

January 9, 2018

BENJAMIN SOMERLOTT, Plaintiff,
v.
McNEILUS TRUCK AND MANUFACTURING, INC., Defendant. Witness Name Description of Anticipated Testimony Testifying? Witness Name Description of Anticipated Testimony Testifying? Witness Name Description of Anticipated Testimony Testifying? Ex. No. Document Admissibility Stipulated. Authenticity Stipulated; Admissibility Disputed Authenticity and Admissibility Disputed Ex. No. Bates No. Document Admissibility Stipulated Auth. Stip., admiss. disp. Auth. & admiss. disp.

          EDWARD H. MOORE, ESQ. ATTORNEY FOR PLAINTIFF

          ANNE M. LOUCKS, WILLIAMS, KASTNER & GIBBS PLLC, ELIZABETH V. MCNULTY, TAYLOR ANDERSON LLP. ATTORNEYS FOR DEFENDANT

          PRETRIAL ORDER

          Marsha J. Pechman United States District Judge

         Pursuant to LCR 16(i), Defendant McNeilus Truck and Manufacturing, Inc. (“MTM” or “Defendant”) and Plaintiff Benjamin Somerlott (“Somerlott” or “Plaintiff”) jointly offer the following Proposed Pre-Trial Order.

         I. JURISDICTION

         Jurisdiction is vested in this court by virtue of: This Court has original jurisdiction under the provision of 28 U.S.C § 1332.

         Complete diversity of citizenship exists between the parties: (a) Plaintiff Benjamin Somerlott is a citizen of the State of Washington, U.S.A., (b) Defendant McNeilus Trucking and Manufacturing, Inc. is a corporation incorporated under the laws of Minnesota, with its principal place of business in Dodge Center, Minnesota; Defendant is thus a citizen of a foreign state. The amount in controversy exceeds $75, 000.00.

         This Court has personal jurisdiction over the Defendant because it conducted business in the State of Washington, both generally and with regard to the events in question, to create a sufficient nexus between the Defendant's forum contacts and Plaintiff's cause of action to create jurisdiction.

         Venue is proper in the United States District Court, Western District of Washington, pursuant to 28 U.S.C. § 1391(b)(2), because a substantial part of the events or omissions giving rise to the claim occurred in this District.

         The incident made the basis of this suit occurred in King County, WA. As such, Intradistrict venue is proper in Seattle as the claim arose in King County. WAWD Civ. R. 3(d).

         II. CLAIMS AND DEFENSES

         Plaintiff will pursue at trial the following claims:

         Strict liability based upon defective design and defective marketing and warnings.

         MTM intends to pursue the following affirmative defenses at trial:

         FIRST AFFIRMATIVE DEFENSE

         Plaintiff's claims fail to state facts sufficient to constitute a cause of action against MTM.

         SECOND AFFIRMATIVE DEFENSE

         Plaintiff's injuries and damages were caused or contributed to by the negligence or other wrongful conduct of persons, firms, partnerships, corporations, municipalities, or entities other than MTM and that said negligence or other wrongful conduct comparatively reduces the percentage of negligence or other liability, if any, of MTM.

         THIRD AFFIRMATIVE DEFENSE

         Plaintiff's injuries and damages were legally and proximately caused or contributed to by the negligence, fault, assumption of risk, and other culpable conduct of Plaintiff, and that the amount of damages, if any, that Plaintiff may recover against MTM must be diminished in the proportion that such conduct contributed to the alleged injuries, losses or damages of Plaintiff.

         FORTH AFFIRMATIVE DEFENSE

         Plaintiff's injuries and damages were legally and proximately caused by, and arose out of, risks of which Plaintiff had both knowledge and understanding and that Plaintiff voluntarily assumed.

         FIFTH AFFIRMATIVE DEFENSE

         Plaintiff's injuries and damages were legally and proximately caused by, and arose out of, Plaintiff's primary assumption of the risk.

         SIXTH AFFIRMATIVE DEFENSE

         MTM is informed and believes and on that basis alleges that, if there is any comparative fault attributed to individuals or entities other than MTM, then this percentage of fault comparatively reduces the non-economic damages, if any, that Plaintiff can recover from MTM.

         SEVENTH AFFIRMATIVE DEFENSE

         Plaintiff is precluded from proceeding against MTM by reason of his negligent or otherwise wrongful failure to preserve or to cause others to preserve evidence relating to the incident that forms the subject matter of this action, including but not limited to the personal protective ...


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