Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) obtained dismissal of a case with prejudice at the pleadings stage. The case involved allegations of personal injuries stemming from an employee of Wilson Elser's client, a national airline, playing with a remote control car outside the airline's hangar. The plaintiff claimed the remote control car struck his foot at a high rate of speed and caused severe injuries. Patrick and Sarena succeeded in removing the state court case to the Northern District of California, then moved to dismiss the complaint for failure to state a claim. The plaintiff filed a late opposition and failed to respond to the court's order to show cause. The court dismissed the case without prejudice. Six days after the statute of limitations expired, the plaintiff filed the same complaint once again in state court, and Patrick and Sarena removed the case to the Northern District once more. They then moved to dismiss the complaint for failure to state a claim and included an argument based on the expiration of the statutory period. The plaintiff again missed the deadline to oppose and failed to respond to the court's order to show cause. The court thereafter granted the defense's motion and dismissed the case with prejudice.
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