Patrick J. Kearns

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) obtained dismissal of a complaint with prejudice in a case before the U.S. District Court for the Eastern District of California. The case involved allegations of discrimination arising from the plaintiff’s removal from a flight and being banned from using a national airline, Wilson Elser’s client. Patrick and Sarena removed the state court case to the Eastern District of California, then moved to dismiss the complaint for failure to state a claim. The court granted the motion but gave the pro se plaintiff leave to amend. Instead of filing and amended complaint, the plaintiff filed a new state court action adding more causes of action to the complaint. Patrick and Sarena removed the case to federal court once more and filed a second motion to dismiss for failure to state a claim. This time, they argued leave to amend would be futile because, despite the court providing the plaintiff with clear examples of how to plead his claims, the plaintiff’s new complaint contained the exact same defects as the prior one. The court agreed and dismissed the complaint with prejudice.

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) successfully vacated a seven-figure default judgment, and thereafter obtained a dismissal of the complaint with prejudice. The underlying case, filed in 2017, involved a claim against a hospital, a surgeon and Wilson Elser’s client, a national medical air transportation provider. The plaintiff alleged she sustained injuries during surgery that were exacerbated by a delay in medical transport. In 2018, the hospital and surgeon were dismissed at the pleadings stage. By 2021, the plaintiff obtained a default judgment against our client, and nearly a year and a half later the plaintiff served the client with a notice of judgment. Patrick and Sarena moved to vacate the default and default judgment, and quash the false return of service, on the grounds that the plaintiff had served some entity other than the client’s registered agent for service of process in California. On the eve of the opposition’s deadline, the plaintiff stipulated to vacate the default and quash service. Thereafter, Patrick and Sarena moved to dismiss the complaint due to the plaintiff’s failure to effectuate personal service within California’s mandatory period of three years from the date the complaint was filed. The court agreed and dismissed the complaint with prejudice.

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel–San Diego) obtained a defense verdict following a six-day jury trial in Federal Court in the Central District of Los Angeles. The case stemmed from a 2014 crash of a Sikorsky MH-60 Special Operations Helicopter flown by the United States Army’s 160th SOAR Division on base at Fort Hunter, Georgia. Litigation against numerous parties were ultimately separated, and litigated in different venues around the country. Wilson Elser’s client manufactured and sold a tactical transponder and emergency locator transmitter (ELT) which the 160th had installed on the aircraft. Upon impact, the ELT did not transmit a signal and the plaintiffs alleged it was defectively designed and manufactured, resulting in a delay of first responders to the site of the crash and resulting injuries. The original suit was filed in 2014, and the case against Wilson Elser’s client was stayed for approximately five years due to the bankruptcy of a co-defendant. A jury trial finally proceeded in mid-July 2023. After the conclusion of evidence and argument, the jury returned a unanimous defense verdict after approximately 45 minutes of deliberation. 

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.