Thompson et al v. Suzuki Motor of America, Inc. et al

MOTION to dismiss for lack of jurisdiction Due to Insufficiency of Service of Process

W.D. Mo.January 6, 2017

6481043.2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION SAMUEL THOMPSON and ) EZRA PAUL THOMPSON ) ) Plaintiffs, ) Case No.: 3:17-cv-5001-RK ) SUZUKI MOTOR CORPORATION, a ) foreign corporation, SUZUKI MOTOR ) OF AMERICA, INC., and ROY ) MADISON HURST, ) ) Defendants. ) SUZUKI MOTOR CORPORATION’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION DUE TO INSUFFICIENCY OF SERVICE OF PROCESS COMES NOW Suzuki Motor Corporation (“SMC”), by and through the undersigned counsel, and moves, pursuant to Rules 12(b)(2) and 12(b)(5), to dismiss for lack of personal jurisdiction due to insufficiency of service of process. SMC appears only for the limited purpose of challenging jurisdiction due to insufficiency of service of process. In support of this motion, SMC states the following: 1. On November 10, 2016, Plaintiffs filed their Petition in this matter, alleging claims against SMC and Suzuki Motor of America, Inc. (“SMAI”).1 See Exhibit A, Petition. 2. On December 7, 2016, Plaintiffs served summons and the Petition on CT Corporation System, 120 South Central Avenue, Clayton, Missouri 63105. The summons, attached hereto as Exhibit B, is directed to: SUZUKI MOTOR CORPORATION Alias: SUZUKI MOTORS AND SUZUKI AMERICA C/O CT CORPORATION 1 This case was removed to this Court on January 6, 2017. Case 3:17-cv-05001-RK Document 7 Filed 01/06/17 Page 1 of 5 6481043.2 - 2 - 3. Plaintiffs, by service on CT Corporation and SMAI, purport to have effectuated service on both SMAI and SMC. See Ex. A, ¶ 4. CT Corporation is the registered agent for service of process for SMAI. Id. Plaintiffs allege that SMAI is the registered agent for service of process on SMC, pursuant to the federal National Traffic and Motor Vehicle Safety Act (the “NHTSA Statute”), 49 U.S.C. § 30164. Id. This is incorrect, and Plaintiffs neither have nor cite any evidence to support this assertion. 4. SMC is a Japanese corporation. See Ex. A, ¶ 3. SMC is the parent of SMAI, and the two are separate and distinct corporate entities. See generally Ex. A; see also Affidavit of Alex G. Butt, attached to SMAI’s Motion to Quash (Doc. 5). 5. This Court does not currently have jurisdiction over SMC because SMC has not yet been properly served with the Summons and Petition in this action. “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987); see also O’Hare v. Permenter, 113 S.W.3d 287, 289 (Mo. App. E.D. 2003) (“Service of process is a prerequisite to personal jurisdiction[.]”). A court, therefore, lacks jurisdiction over a would-be defendant that is not properly served. 6. As federal courts in Missouri have explained: Federal Rule of Civil Procedure 4(e) and [the Missouri Rules of Civil Procedure] only allow service upon a foreign corporation “by delivering a copy of the summons and petition to an officer, partner, or managing or general agent, or … by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of process.” See Dunakey v. Amer. Honda Motor Co., Inc., 124 F.R.D. 638 (E.D. Mo. 1989) (quoting Mo. R. Civ. P. 54.13(b)(3). A foreign corporation, such as SMC, is properly served under the Hague Case 3:17-cv-05001-RK Document 7 Filed 01/06/17 Page 2 of 5 6481043.2 - 3 - Convention only. See Richardson v. Volkswagenwerk, A.G., 552 F. Supp. 73, 78-79 (W.D. Mo. 1982). 7. Under the facts present here, service on SMAI does not constitute effective service on SMC. The sole fact that SMAI is a wholly-owned subsidiary of SMC does not convert service on SMAI into proper service on SMC as well. See Dunakey, 124 F.R.D. at 638- 39. In Dunakey, under facts nearly identical to those here, the court held that service on the wholly-owned American subsidiary of a Japanese auto manufacturer did not constitute effective service on the Japanese parent, when the American subsidiary had not been authorized to accept service for the parent. Id. Likewise here, SMAI is not authorized to accept service on behalf of SMC, and there is otherwise no agency relationship between the two companies authorizing service on one to constitute service on the other. Id., see also Affidavit of Alex G. Butt, attached to SMAI’s Motion to Quash (stating that SMAI is not authorized to accept service on behalf of SMC). 8. Plaintiffs attempt to avoid this conclusion by pleading that the federal NHTSA Statute (49 U.S.C. § 30164) converts SMAI into SMC’s registered agent. See Ex. A, ¶ 4. Case law clearly refutes Plaintiffs’ allegation in this regard, as any claimed designation of SMAI by SMC as an agent under the federal NHTSA Statute applies only to NHTSA proceedings and not to service of a summons and Petition under Missouri law. Richardson, 552 F. Supp. at 73 (holding that the designation of an agent under this statute is only for purposes of NHTSA proceedings, and service on an agent/subsidiary designated under this statute does not constitute effective service of a lawsuit under Missouri law). 9. The attempted service of process on SMC, through SMAI, was defective and does not constitute effective service of Plaintiffs’ lawsuit on SMC. This Court, therefore, lacks Case 3:17-cv-05001-RK Document 7 Filed 01/06/17 Page 3 of 5 6481043.2 - 4 - personal jurisdiction over SMC due to insufficiency of service of process, requiring the dismissal of SMC from Plaintiff’s lawsuit. WHEREFORE, Suzuki Motor Corporation, upon this limited entry of appearance, respectfully requests the Court to issue an order dismissing Plaintiffs’ claims against Suzuki Motor Corporation, and for any other relief deemed necessary under the circumstances. Respectfully submitted, THOMPSON COBURN LLP By /s/ Carl J. Pesce Carl J. Pesce, #39727 One US Bank Plaza St. Louis, Missouri 63101 (314) 552-6000 (314) 552-7000 (fax) cpesce@thompsoncoburn.com Attorney for Defendant Suzuki Motor Corporation Case 3:17-cv-05001-RK Document 7 Filed 01/06/17 Page 4 of 5 6481043.2 - 5 - CERTIFICATE OF SERVICE The undersigned hereby certifies that on this the 6th day of January, 2017, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system and served via first class mail, postage prepaid, to the following counsel: Kurt J. Larson Brad E. Miller LARSON LAW FIRM 3331 E. Ridgeview Street Springfield, MO 65804 klarson@larsonlaw.com Attorneys for Plaintiff Ezra Paul Thompson Aaron Sachs Joel A. Block AARON SACHS & ASSOCIATES, P.C. 3271 E. Battlefield, Suite 350 Springfield, MO 65804 joel@autoinjury.com Attorneys for Plaintiff Samuel Thompson R. Graham Esdale, Jr. BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES P.C. 218 Commerce St. Montgomery, AL 36104 graham.esdale@beasleyallen.com Attorney for Plaintiffs /s/ Carl J. Pesce Case 3:17-cv-05001-RK Document 7 Filed 01/06/17 Page 5 of 5 IN THE CIRCUIT COURT OF MCDONALD COUNTY, MISSOURI SAMUEL THOMPSON and EZRA PAUL THOMPSON, Plaintiffs, v. SUZUKI MOTOR CORPORATION, a foreign corporation; SUZUKI MOTOR OF AMERICA, INC. and ROY MADISON HURST, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Court Case No. JURY TRIAL DEMANDED PETITION FOR DAMAGES Plaintiffs, for their causes of action against these Defendants, state and allege as follows: 1. Plaintiff Samuel Thompson is a resident of McDonald County, Missouri, residing at 806 W. Highway 76, Anderson, Missouri 64831. 2. Plaintiff Ezra Paul Thompson is a resident of McDonald County, Missouri, residing at 806 W. Highway 76, Anderson, Missouri 64831. 3. Defendant Suzuki Motor Corporation (“Suzuki Motor”) is a foreign corporation with its principal offices located at 300 Takatsuka-cho, Minami-ku, Hamamatsu, Shizouka Prefecture 432-8611, Japan. 4. Defendant, Suzuki Motor of America, Inc. (“Suzuki America), is a distributor, supplier and/or importer of Suzuki vehicles in the United States. Upon information and belief, Suzuki America caused a certain 1989 Suzuki Sidekick vehicle E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M 16MC-CV00992 EXHIBIT ACase 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 1 of 14 2 bearing Vehicle Identification Number JS4TA01V0K4100497 (the subject Suzuki) and others to be placed into the stream of commerce in Missouri as well as the United States on behalf of Defendant Suzuki Motors. Suzuki America imported and sold the subject Suzuki to retail stores in Missouri or otherwise caused the subject Suzuki to be placed into the stream of commerce. Suzuki America is the registered agent of service for Defendant Suzuki Motors pursuant to 49 U.S.C. § 30164. Suzuki America may be served with summons and process of this Court by registered agent as follows: CT Corporation System, 120 South Central Avenue, Clayton, Missouri 63105. 5. Defendant Suzuki America is deemed to be the manufacturer of the subject Suzuki under Federal law pursuant to the National Traffic and Motor Vehicle Safety Act (“Safety Act”), 49 U.S.C. Chapter 301, Section 30102(a)(6)(B). 1 Manufacturers are required to maintain records regarding the distribution of vehicles so that NHTSA recalls can be made if needed. As such, the Defendants should have specific records that outline the chain of distribution for the subject Suzuki. 6. Defendant Roy Madison Hurst is a resident of Texas County, Missouri, residing at 108 Nicholas Street, Houston, Missouri 65483. 7. Defendants Suzuki Motor and Suzuki America are engaged in the business of manufacturing, marketing, promoting, advertising and selling automobiles in the State of Missouri and throughout the United States and elsewhere. Defendants Suzuki Motor and Suzuki America systematically and continuously launch their products into the stream of commerce with the intention that those products get sold in Missouri. 1 Also see 15 U.S.C. § 2052(a)(11). E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 2 of 14 3 Defendants Suzuki Motor and Suzuki America regularly do or solicit business, or engage in any other persistent course of conduct, or derive substantial revenue from goods used or consumed in Missouri. 8. Venue is proper in this Court pursuant to RSMo § 508.010 because Plaintiffs were first injured in McDonald County by the wrongful acts, negligent conduct and/or defective product(s) described herein. 9. This Court has subject matter jurisdiction over this matter pursuant to RSMo §478.070 and Mo. Const. Art. V § 14. 10. This Court has personal jurisdiction over Defendants Suzuki Motor and Suzuki America pursuant to RSMo §506.500, including but not limited to subsections (1) and (3), in that Plaintiffs’ causes of action against Suzuki Motor and Suzuki America arise from its transaction of business within this State and/or their commission of tortious acts within this State. 11. Furthermore, Defendant Suzuki America is registered to do business in this State and maintains a registered agent for service of process in this State. 12. Defendants Suzuki Motor and Suzuki America have substantial, systematic and continuous contact with this State such that the exercise of personal jurisdiction over them is appropriate. 13. Further, Defendants Suzuki Motor and Suzuki America have purposefully availed themselves to the privilege of conducting business within this State and have the requisite minimum contacts with this State such that maintenance of this suit does not E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 3 of 14 4 offend traditional notions of fair play and substantial justice and that Defendants Suzuki Motor and Suzuki America should reasonably anticipate being hauled into Court here. 14. Roy Madison Hurst is subject to personal jurisdiction in this Court, as a result of his commission of tortious acts within this state. 15. On September 18, 2015, Plaintiff Ezra Thompson was driving his 1989 Suzuki Sidekick, Vehicle Identification Number JS4TA01V0K4100497, Southbound on Interstate 49 in Pineville, Missouri. 16. Plaintiff Samuel Thompson was a passenger in the right front seat of the subject Suzuki at the time. 17. Defendant Roy Madison Hurst was driving his 2014 Chevrolet Silverado Truck, Vehicle Identification Number 3GCUKREH6EG437051, Southbound on Interstate 49 behind the subject Suzuki. 18. The subject Suzuki was pulling a small flatbed trailer and began slowing down due to mechanical problems. 19. The Chevrolet Silverado driven by Defendant Hurst struck the rear of the trailer of the subject Suzuki causing damage to the rear of the subject Suzuki causing the vehicle to erupt into flames. 20. The subject Suzuki and trailer unit sustained extensive fire damage. 21. As a direct and proximate result of the acts and/or omissions of the Defendants and/or the defects in the subject Suzuki described herein, Plaintiffs Ezra Thompson and Samuel Thompson suffered devastating injuries including, but not limited to, severe burns, amputation of fingers on both hands, broken bones, and other injuries, E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 4 of 14 5 pain, suffering, mental anguish, multiple surgeries, medical bills, lost income, loss of enjoyment of life, said injuries and damages being permanent, progressive and continuous in nature and into the future. 22. As a direct and proximate result of the acts and/or omissions of the Defendants and/or the defects in the subject Suzuki described herein, Plaintiffs Ezra Thompson and Samuel Thompson have also suffered scarring, disfigurement, emotional distress and a loss of future earning capacity and wages. 23. As a direct and proximate result of the acts and/ or omissions of the Defendants and/or the defects in the subject Suzuki described herein, Plaintiffs Ezra Thompson and Samuel Thompson will be required to spend substantial amounts of money on past and future medical treatment, medication, therapy and care for their injuries. COUNT I Strict Liability - Defendants Suzuki Motor Corporation and Suzuki Motor of America, Inc. 24. Plaintiffs incorporate herein by reference each and every allegation as if fully set forth herein. 25. Defendants Suzuki Motor and Suzuki America participated in the design, manufacturing, testing, advertising, marketing, importation, distribution and sale of the subject Suzuki. 26. Prior to the incident on September 18, 2015, the subject Suzuki was in substantially the same condition as it was when it left the control of the Defendants. E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 5 of 14 6 27. At the time the subject Suzuki left the control of the Defendants, and at the time of the events described herein, the subject Suzuki was in a defective condition unreasonably dangerous when put to a reasonably anticipated use. 28. At the time the subject Suzuki left the control of the Defendants, and at the time of the events described herein, the subject Suzuki was unreasonably dangerous when put to a reasonably anticipated use without knowledge of its characteristics. 29. Specifically, the subject Suzuki was unreasonably dangerous to Plaintiffs and other consumers or users by reason of defects in the design and/or manufacture of its fuel system, including but not limited to: (a) defects in the fuel system design; (b) inadequate fuel tank shielding; (c) inadequate fuel system shielding; (d) defects in the fuel tank design; (e) defects in the fuel line design; (f) its lack of adequate warnings regarding the dangerous nature of collisions due to the defects in the fuel system design, fuel tank design, and fuel line design; and (g) its lack of adequate warnings regarding the dangerous nature of collisions in a vehicle not equipped with adequate fuel tank shielding. 30. At the time of the events described herein, the subject Suzuki including its fuel system, was being used in a reasonably foreseeable manner anticipated and intended by the Defendants. 31. The subject Suzuki and its fuel system were defective and unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer. E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 6 of 14 7 32. As a direct and proximate result of the defective condition of the subject Suzuki and the defects in its fuel system as existed when sold, Plaintiffs Ezra Thompson and Samuel Thompson suffered enhanced injuries beyond what they would have otherwise suffered and will continue in the future to suffer the damages described above. 33. At the time Defendants Suzuki Motor and Suzuki America sold the subject Suzuki, they knew of the defective conditions and dangers alleged herein, and thereby showed complete indifference and conscious disregard for the safety of others. 34. As a direct and proximate result of the subject Suzuki being sold without adequate warnings regarding the dangerous and the defective condition of its fuel system as described above, Plaintiffs Ezra Thompson and Samuel Thompson suffered enhanced injuries beyond what they would have otherwise suffered and will continue in the future to suffer the damages described above. WHEREFORE, Plaintiffs Ezra Thompson and Samuel Thompson respectfully request that this Court enter judgment against Defendants Suzuki Motor and Suzuki America on Count I of their Petition for Damages, that the Court award Plaintiffs a fair and reasonable amount to adequately compensate them for all their damages against Defendants Suzuki Motor and Suzuki America, that the Court award Plaintiffs for punitive damages in such sum as will serve to punish the Defendants Suzuki Motor and Suzuki America and deter others from engaging in like conduct, that the Court award them prejudgment interest, interest on the judgment, the costs of this action and such other and further relief as the Court deems just and proper. E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 7 of 14 8 COUNT II Importer Negligence/Wantoness - Defendant Suzuki Motor of America, Inc. 35. Plaintiffs incorporate herein by reference each and every allegation as if fully set forth herein. 36. Defendant Suzuki America, as product importer, designer, manufacturer and distributor, owed a duty to the consuming public in general, and Plaintiffs in particular, to exercise reasonable care to import, design, test, manufacture, inspect, market, and sell Suzuki vehicles, including the subject Suzuki, free of unreasonable risk of harm to owners, users, and consumers in the foreseeable situations and a product which would not cause or allow severe injury to users. Under the Vehicle Safety Act, importers of motor vehicle equipment such as motor vehicles have the same duties as manufacturers and are considered the manufacturers of the products imported. 37. Defendant Suzuki America breached its duty to exercise reasonable care to import, design, test, manufacture, inspect, market, distribute, integrate into the subject Suzuki, and sell the subject Suzuki free of an unreasonable risk of physical harm to prospective owners, users, and vehicle occupants, including Plaintiffs. Defendant Suzuki America breached its duty of care in a number of ways, including but not limited to the following: a. The subject Suzuki design and manufacture represent an unreasonable risk of injury and did not adequately protect users from injury; E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 8 of 14 9 b. The subject Suzuki was subject to defects in the fuel system design, inadequate fuel tank shielding, defects in the fuel tank design and defects in the fuel line design during foreseeable use resulting in injuries or death; c. The subject Suzuki does not contain, and is not accompanied by, adequate warnings to prospective owners, users or occupants, including Plaintiffs in this case, of the dangerous nature of collisions due to the defects in the fuel system design, fuel tank design, and fuel line design and in a vehicle not equipped with adequate fuel tank shielding. Moreover, the warnings it does contain were misleading as to the safety of the product; d. The subject Suzuki was not adequately tested or investigated by Defendant Suzuki America to determine whether prospective owners, users and occupants using the subject Suzuki would be exposed to an unreasonable risk of physical harm and the Japanese corporation that designed and/or manufactured the subject Suzuki was not adequately investigated to determine the safety of the product to prospective owners, users and occupants of vehicles; e. Defendant Suzuki America knew or should have known, from information it received or should have received if it had investigated, that defects in the subject Suzuki would in fact increase the risk of injury and foreseeable operating conditions; and, f. Defendant Suzuki America knew, or should have known, from information it received that the chosen design and manufacturing techniques of the subject Suzuki increased the risk of injury in foreseeable operating conditions. Defendant acted with a wanton and/or reckless disregard for the safety and well-being of the consuming public, E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 9 of 14 10 including the Plaintiffs, and acted willfully and wantonly, as defined by Missouri law, in importing, designing, testing, manufacturing, inspecting, marketing, investigating and distributing the subject Suzuki because it had knowledge of the risk of injury described in this Complaint when it imported, manufactured, marketed, distributed, inspected, and sold the subject Suzuki. 38. The negligence of Suzuki America in importing, designing, manufacturing, investigating, promoting, inspecting, and selling the subject Suzuki was so egregious that it rises to the level of reckless disregard for the safety and well-being of the consuming public including the Plaintiffs, and constitutes willful and wanton conduct as defined by Missouri law, in importing, designing, testing, manufacturing, inspecting, marketing and distributing the subject Suzuki because it had knowledge of the risk of injury described in this Complaint when it imported, manufactured, marketed, distributed, inspected and sold the subject Suzuki. Such conduct warrants the imposition of punitive damages. 39. Defendant Suzuki America is also negligent and/or wanton as an importer in that it showed a complete indifference to or conscious disregard for the safety of others and failed to ensure the safety of the vehicles it was importing, designing, testing, manufacturing, inspecting, marketing, distributing and selling to the U.S. consumer, including the Plaintiffs by breaching its duty under the Vehicle Safety Act. 40. As a direct and proximate result of the negligent and/or wanton conduct of Defendant Suzuki America, Plaintiffs Ezra Thompson and Samuel Thompson, were severely injured. E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 10 of 14 11 WHEREFORE, Plaintiffs Ezra Thompson and Samuel Thompson respectfully request that this Court enter judgment against Defendant Suzuki America on Count II of their Petition for Damages, that the Court award Plaintiffs a fair and reasonable amount to adequately compensate them for all their damages against Defendant Suzuki America, that the Court award Plaintiffs for punitive damages in such sum as will serve to punish the Defendant Suzuki America and deter others from engaging in like conduct, that the Court award them prejudgment interest, interest on the judgment, the costs of this action and such other and further relief as the Court deems just and proper. COUNT III Negligence - Defendants Suzuki Motor Corporation, Suzuki Motor of America, Inc. and Roy Madison Hurst 41. Plaintiffs incorporate herein by reference each and every allegation as if fully set forth herein. 42. Defendants Suzuki Motor and Suzuki America owed a duty of care, breached that duty of care and were thereby negligent in each of the following respects: a. Defendants Suzuki Motor and Suzuki America failed to use ordinary care to design, test and/or manufacture the Suzuki Sidekick and its fuel system to be reasonably safe and to safely, properly and adequately function in reasonably foreseeable types of collisions; b. Defendant Suzuki Motor and Suzuki America failed to incorporate adequate fuel tank and/or fuel system, design and shielding into the Suzuki Sidekick E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 11 of 14 12 when it was both economically and technologically feasible for Suzuki Motor and Suzuki America to do so; c. Defendants Suzuki Motor and Suzuki America failed to use ordinary care to adequately warn of the risk of harm from the inability of the Suzuki Sidekick and its fuel system to safely, properly and adequately function in reasonably foreseeable types of collisions; d. Defendants Suzuki Motor and Suzuki America failed to warn (or to adequately or properly warn) that the Suzuki Sidekick did not have adequate shielding on its fuel tank and/or fuel system; e. Defendants Suzuki Motor and Suzuki America failed to warn (or to adequately or properly warn) about the risks of injury associated with post-collision fuel- fed fires in vehicles without properly designed fuel systems and/or fuel tank shielding; and f. Defendants Suzuki Motor and Suzuki America knew or had information from which they, in the exercise of ordinary care, should have known that the negligent conduct described herein created a high degree of probability of injury, and the Defendants Suzuki Motor and Suzuki America thereby showed complete indifference to or conscious disregard for the safety of others. 43. Defendant Roy Madison Hurst is liable to Plaintiffs Ezra Thompson and Samuel Thompson for his negligence in operating his vehicle, including but not limited to the following tortious acts and omissions: a. Following too closely, in violation of RSMo §304-017.1; E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 12 of 14 13 b. Failing to keep his vehicle under control so as to avoid striking another vehicle; c. Failing to keep a careful lookout; d. Driving at an excessive speed; e. Defendant Hurst knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, swerved, slackened speed, and/or sounded a warning, but Defendant failed to do so; and f. Defendant’s automobile came into collision with the rear of the Plaintiff’s automobile. 44. As a direct and proximate result of the above-described negligence of Defendants Suzuki Motor, Suzuki America and Roy Madison Hurst, Plaintiffs Ezra Thompson and Samuel Thompson were severely injured and Plaintiffs Ezra Thompson and Samuel Thompson have suffered and will continue in the future to suffer the damages described above. WHEREFORE, Plaintiffs Ezra Thompson and Samuel Thompson respectfully request that this Court enter judgment against Defendants Suzuki Motor, Suzuki America and Roy Madison Hurst on Count III of their Petition for Damages, that the Court award Plaintiffs a fair and reasonable amount to adequately compensate them for all their damages against Defendants Suzuki Motor, Suzuki America and Roy Madison Hurst, prejudgment interest, interest on the judgment, the costs of this action and such other and further relief as the Court deems just and proper. E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 13 of 14 E lectronically F iled - M cD onald - N ovem ber 10, 2016 - 09:09 A M Case 3:17-cv-05001-RK Document 7-1 Filed 01/06/17 Page 14 of 14 IN THE 40TH JUDICIAL CIRCUIT COURT, MCDONALD COUNTY, MISSOURI Judge or Division: Case Number: I6MC-CV00992 TEMOTHY WAYNE PERIGO Plaintiff7Petitioner: Plaintiff'sfPetitioner's Attorney/Address SAMUEL THOMPSON JOEL AARON BLOCK 3271 E Battlefield St Ste 350 vs. Springf‹eld,MO 65804 DefndantfRespondent: Court Address: ROYHURST P.OBOX 157 MO 64856Nature ofSuit: . CC Pers Injury-Vehicular (Date File Stamp) Summons in Civil Case The State ofMissouri to: SUZUKI MOTOR CORPORATION Alias: SUZUKI MOTORS AND SUZUKI AMERICA C/O CT CORPORATION 120 S. CENTRAL AVENUE CLAYTON, MO 63105 COURTSL4L OF '/ou are summoned to appear before this court and to file your pleading to the petition1 a copy of which -s attached, and to serve a copy ofyour pleading upon the attorney for PlaintifUPetitioner at the fc)9i_4\ above address all within 30 days after receiving this summons, exclusive ofthe day ofservice. Ifyou fail to(i file your pleading,judgment by default may betaken againstyou forthe rcliefdemanded -n the petition._1 1122i2016__________________ _JENNIFER MDOSKA/SK_ Date Clerk MCDONALD OWVTY Further Information: . Sheriff's or Server's Return Note to serving officer Summons should be returned to the court within thirty days after the date of issue. I ccrtif' that I hae served the above summons by: (check one) D delhvring a copy ofthe summons and a copy ofthe petition to the Defendant/Respondent. D leaving a copy ofthe summons and a copy ofthe petition at the dwelling place or usual abode ofthe Defendant/Respondent with __________________________________________a person ofthe Defendant's/Respondent's family over the age of 15 years. D (for service on a corporation) delivering a copy ofthe summons and a copy ofthe petition to (name) (title). EJ other Served at in (County/City ofSt. Louis), MO, on Printed Naine ofSh&ffor Swr (date) at Signature of Sheriff or Savcr Must be sworn before a notary public ifnot served by an authorized officer. Subscribed and sworn to before nie on (Seal) My commission expires: (date). (address) (time). SheriWs Pees Summons s________________ NonEst s____________ Sheriff's Deputy Salary Supplemental Surcharge S 10.00 Mileage s________________ C______ miles c S. per mile) Total s___________ A copy ofthe summons and a copy ofthe petition must be served on each Defendant/Respondent. For methods ofservice on all classes of suits, see Supreme Court Rule 54. OSCA (7-08) SM3O (SMCC) ForCourl Use Only:Document Id # 16-SMCC-448 I of I Civil Pmcedure Form No. 1, Rules 54.01-54.05. 54.13, and 54.2e, 506.120-506.140, and 506.150 RSMo EXHIBIT BCase 3:17-cv-05001-RK Document 7-2 Filed 01/06/17 Page 1 of 1