- Associated Press - Sunday, August 16, 2015

CHARLESTON, W.Va. (AP) - The West Virginia Supreme Court has been asked to decide whether a Northern Panhandle court can hear a lawsuit filed over a man’s death at an endurance event held more than 200 miles away in the Eastern Panhandle.

At issue is a clause in a Tough Mudder agreement signed by Avishek Sengupta, 28, of Ellicott City, Maryland that requires all legal actions to be brought in “the appropriate state or federal trial court for the state in which the TM event is held,” according to court records.

Sengupta died in April 2013 a day after he was pulled from the water pit on the “Walk the Plank” obstacle during the Tough Mudder event at the Peacemaker Training Center in Berkeley County, in the Eastern Panhandle. A medical examiner ruled he drowned.

His mother, Mita Sengupta, filed wrongful death lawsuits in 2014 in Marshall County against Tough Mudder, Peacemaker National and corporate sponsor General Mills. A similar lawsuit was filed in Marshall County against event water rescue coordinator Airsquid Ventures, doing business as Amphibious Medics, and diver Travis Pittman.

Her lawyers say the clause in question liberally addressed venue for legal actions for the 2013 event and its only geographic restriction was West Virginia. They also say a defense motion seeking to move the lawsuit to Berkeley County is without merit because the defendants do not argue that they cannot get a fair trial in Marshall County.



Sengupta’s lawyers noted that Peacemaker and its owner are well known in Berkeley County. They also said the county benefits economically from Tough Mudder’s events, which are held twice a year.

But defense lawyers argue in court filings that the clause limits any legal action regarding the 2013 event to Berkeley County, where it was held. The lawyers say Sengupta’s mother is suing in Marshall County to try to obtain a more favorable outcome than in Berkeley County.

“In filing this lawsuit in Marshall County, a county with no connection whatsoever to this controversy, Plaintiff has engaged in forum shopping,” lawyers for Tough Mudder, Peacemaker and General Mills wrote in their petition.

The defense lawyers say the circuit judge misinterpreted the agreement’s clause.

“Despite the plain language of the provision, which requires that a matter be brought in ‘the appropriate state or federal court’ within the state where the Tough Mudder event is held, the circuit court determined that this provision authorized venue throughout the state of West Virginia rather than in the appropriate court. By disregarding this definite article, the circuit court abused its discretion,” the lawyers’ petition stated.

Airsquid and Pittman made similar arguments in their petition seeking to block the case being heard in Marshall County. Both petitions said the circuit judge adopted the plaintiff’s proposed order virtually verbatim.

Marshall County Circuit Court Judge David W. Hummel Jr. ruled earlier this year that the clause’s language means a legal action can be filed anywhere in West Virginia.

Defense lawyers have asked the Supreme Court to prevent the Marshall County court from hearing the lawsuit. The justices will hear oral arguments on their petitions Sept. 2.

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