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Defendants ask court to dismiss Consumer Protection Act claims of missing diver’s widow

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THE defendants in a lawsuit filed by the widow of a missing diver have asked the federal court to dismiss the Consumer Protection Act claims in her complaint.

Madelyn Ann Jones sued the Professional Association of Dive Instructors, Axe Murderer Tours LLC and Harry Blalock, and Green Flash LLC and Joe McDoulett a year after her husband, John Jones, went missing at the Grotto on Nov. 18, 2018.

Mrs. Jones’s lawsuit alleges negligence, wrongful death, and breach of the Consumer Protection Act.

The defendants, through their respective attorneys, have denied the allegations.

John Jones, an employee of the Federal Aviation Administration for 30 years, was sent to Saipan to aid in the recovery efforts of the local airport after Super Typhoon Yutu slammed into the island in October 2018.

On Nov. 18, 2018, John Jones with a fellow employee, decided to go scuba diving and sought a diving guide, Blalock. They were later joined by McDoulett of Green Flash.

John Jones went missing during the dive at the Grotto.

The U.S. Coast Guard, the U.S. Navy, the U.S. Air Force, and the CNMI Department of Public Safety searched for Mr. Jones for several days, but he was never found.

The search was suspended on Nov. 24, 2018.

A presumptive death certificate was issued on March 22, 2019 with Nov. 18, 2019 as the date of death.

The 65-year-old John Jones left behind his wife of 46 years, two children, five grandchildren, and his mother.

In response to the complaint, McDoulett, represented by Guam attorney Thomas C. Sterling, stated that Mr. Jones assumed the risk of his injuries, which cannot be blamed on anyone else.

There can be no liability under the Consumer Protection Act since Mr. Jones paid no consideration to McDoulett or Green Flash, Sterling said.

According to Blalock and Axe Murderer’s attorney, Sean Frink: “(1) under CNMI law Consumer Protection Act claims do not survive the death of the decedent, (2) the additional damages potentially allowed for under the CPA, 100% liquidated damages and attorneys’ fees and costs, are not allowable in a CNMI wrongful death case, and (3) personal representatives and estates are not ‘persons’ under the CPA, and thus may not pursue CPA claims.”

Frink said, “Any of the three bases, independently, is reason enough to dismiss the CPA claims.”

He added, “As it is impossible to amend the CPA claim to overcome these deficiencies, respectfully, the claim should be dismissed with prejudice.”

PADI, represented by attorney David Banes, said: “While Blalock and McDoulett were both dive instructors and had their own dive shops, there is no allegation at all in the complaint that John Jones paid them or their dive shops (or promised to pay them) to guide him on the dive. Nor is there any allegation that the dive shop defendants were engaging in their trade or business (for example, conducting diving courses and certifications) when they took Jones and his co-worker on the dive.”

Banes said PADI joins the other defendants in their motion to dismiss the Consumer Protection Act claims on similar grounds.

He said the lawsuit failed to plead the CPA claims with specificity.

Mrs. Jones, who is demanding a jury trial, is represented by attorney William M. Fitzgerald. She has asked the court for a monetary award for damages with interest.

She also asked for an award of attorney’s fees and other costs and expenses, and other relief the court deems just and proper.

According to the lawsuit, “Neither Blalock nor McDoulett asked about Jones' diving experience; they did not inform Jones of the level of difficulty and experience needed to safely dive in the Grotto and they did not inform or obtain Jones' consent as to the risks of harm, including the risks of harm arising from defendants' conduct, in participating in the dive.”

 

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