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Prescott v. Slide Fire Solutions, LP

United States District Court, D. Nevada

September 26, 2019

DEVAN PRESCOTT, individually and on behalf of all those similarly situated, et al., Plaintiffs,


          Gloria M. Navarro District Judge.

         Pending before the Court is the Motion to Dismiss, (ECF No. 34), filed by Defendant Slide Fire Solutions, LP (“Slide Fire”). Plaintiffs Devan Prescott and Brooke Freeman (collectively “Plaintiffs”) filed a Response, (ECF No. 35), and Slide Fire filed a Reply, (ECF No. 36). For the reasons discussed herein, Slide Fire’s Motion to Dismiss is DENIED in part and GRANTED in part.[1]

         I. BACKGROUND

         This case arises from the tragic mass shooting that occurred during the Route 91 Harvest Music Festival (the “Route 91 Festival”) on October 1, 2017, in Las Vegas, Nevada. That day, an individual opened fire on concertgoers from the thirty-second floor of his hotel room at the Mandalay Bay Resort and Casino. (Am. Compl. ¶¶ 1–2, 9, ECF No. 29). In approximately eleven minutes, the shooter killed fifty-eight people, and injured hundreds more. (Id. ¶ 12). Plaintiffs and their loved ones attended that Route 91 Festival.

         According to Plaintiffs, this “military-style assault” could not have happened with a conventional handgun, rifle, or shotgun. (Id. ¶ 2). Rather, Plaintiffs allege that because the shooter’s rifles were equipped with sliding rifle stocks, commonly known as “bump stocks, ” he was able to fire upon the concertgoers “at a rate comparable or equivalent to that of a fully automatic weapon.” (Id. ¶ 11). Slide Fire designed, manufactured, marketed, and sold these bump stocks, and it holds itself out to be the “sole patent holder of bump fire technology.” (Id. ¶¶ 53, 56).

         Plaintiffs allege that Slide Fire obtained a favorable evaluation from the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) by representing bump stocks as intended to assist persons with limited mobility in their hands. (Id. ¶ 15). Based upon this misrepresentation, according to Plaintiffs, the ATF concluded that bump stocks are not subject to regulation as firearm devices under the Gun Control Act or the National Firearms Act. (Id.).

         Notwithstanding Slide Fire’s alleged statement that bump stocks are intended for use by disabled persons, Plaintiffs state that Slide Fire took no action to limit its marketing to such a class of customer. (Id. ¶¶ 21, 26). Plaintiffs continue that “Slide Fire’s own marketing materials and advertisements belie any notion that bump stock devices are intended for use of persons with limited mobility.” (See Id . ¶ 22). For example, Slide Fire’s promotional catalogue states, “[r]apid fire capabilities can add fun to your shooting sessions, and can really take your rifle to the next level.” (Id.).

         Plaintiffs also point to statements made by Slide Fire’s inventor, Jeremiah Cottle (“Cottle”), which suggest that bump stocks are intended for consumers who seek a firearm that mimics a fully automatic weapon. (Id. ¶ 64); (see also Id . ¶ 65) (quoting Cottle discussing how bump stocks are geared toward “people like me, [who] love full auto.”). Cottle allegedly made public comments promoting bump stocks as providing the “full auto experience but without the prohibitive price tag.” (Id. ¶ 66).

         Similarly, Plaintiffs allege that Slide Fire’s various bump stock patents are silent as to the purported benefits for persons with limited mobility in their hands. (Id. ¶ 24). Instead, the patents identify bump stocks’ “primary advantages” as “increas[ing] the ‘enjoyment and excitement’ of shooting firearms” and “enhanc[ing] the firing rate of a semi-automatic weapon.” (Id. ¶ 25).

         Plaintiffs contend that Slide Fire promoted and sold bump stocks “to the general public, without any reasonable measures or safeguards, ” and despite “indicia that it would be used, with firearms and ammunition, for unlawful purposes.” (Id. ¶¶ 2–3). By marketing bump stocks as a “military-grade accessory for civilians, ” and not limiting such promotion to persons with disabilities, Slide Fire’s acts and omissions, according to Plaintiff, foreseeably caused the carnage that took place at the Route 91 Festival. (Id. ¶¶ 2–3, 68–69).

         Plaintiffs initially filed their class action complaint in state court on October 6, 2017; and Slide Fire subsequently removed the case to this Court. (See Pet. for Removal, ECF No. 1). On September 17, 2018, the Court granted Slide Fire’s motion to dismiss without prejudice, giving Plaintiffs leave to file an amended complaint.

         Plaintiffs filed their Amended Complaint on October 8, 2018, bringing the following claims against Slide Fire: (1) negligence; (2) negligence per se; (3) negligent infliction of emotional distress under a theory of bystander liability; (4) negligent infliction of emotional distress under a theory of direct liability; (5) negligent entrustment; (6) negligent products liability; (7) strict products liability; (8) public nuisance; (9) private nuisance; (10) false advertising in violation of § 43(a) of the Lanham Act; and (11) deceptive trade practices under Nevada Revised Statute (“NRS”) 598.0915. (Am. Compl. ¶¶ 121–266).

         Slide Fire now moves to dismiss each of Plaintiffs’ claims in that Amended Complaint. (See Def.’s Mot. to Dismiss (“MTD”), ECF No. 34).


         Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed.R.Civ.P. 12(d).

         If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).


         Slide Fire moves to dismiss Plaintiffs’ Amended Complaint on the following grounds: (1) Plaintiffs’ common-law claims are barred by the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901–7903 (“PLCAA”); (2) the amended allegations fail to plausibly demonstrate how an exception to the PLCAA applies, warranting dismissal of all claims; and (3) even if the PLCAA is not a bar to this action, Plaintiffs’ claims are not cognizable under Nevada law. (MTD at 9–24, ECF No. 34).

         A. Scope of Amendment

         As a preliminary matter, Slide Fire contends that the Court granted Plaintiffs leave to amend their complaint for the limited purpose of pleading additional facts to support an exception to the PLCAA. (Id. at 8). By incorporating five “unrelated new causes of action, ” and not pleading additional facts to support an exception to the PLCAA, Slide Fire claims that Plaintiffs have exceeded the scope of the Court’s Order. (Id.). The Court disagrees.

         First, Slide Fire’s argument is factually misplaced. Plaintiffs’ Amended Complaint does include new facts to establish an exception to the PLCAA. (See Am. Compl. ¶¶ 93–102). Also, the new claims are not “unrelated” as Slide Fire argues; they are premised upon the same acts and omissions alleged in the initial complaint. (See Id . ¶¶ 133–153, 186–199, 239–266).

         Secondly, the Court’s prior Order permitted Plaintiffs to plead facts in support of “an exception to the PLCAA.” Prescott v. Slide Fire Sols., LP, 341 F.Supp. 3d 1175, 1192 (D. Nev. 2018) (emphasis added). The Court did not limit Plaintiffs’ amendment to the predicate exception, as Slide Fire asserts. (MTD at 8). With one exception, Plaintiffs’ new causes of action-for negligent entrustment, negligence per se, false advertising, and consumer fraud- are pleaded to establish that an exception to the PLCAA applies in this case.[2] Indeed, by arguing that these claims do not fit within a PLCAA exception, Slide Fire has implicitly acknowledged these claims are being advanced to demonstrate an exception to the PLCAA, consistent with the Court’s Order.

         Finally, even if Plaintiffs’ Amended Complaint exceeded the scope of this Court’s Order, this would not, in and of itself, warrant striking portions of the pleading. See, e.g., Sapiro v. Encompass Ins., 221 F.R.D. 513, 518 (N.D. Cal. 2004) (declining to strike complaint that had been amended without leave from the court); Beavers v. New Penn Fin. LLC, No. 1:17-cv-00747-JLT, 2018 WL 385421, at *3 (E.D. Cal. Jan. 11, 2018) (refusing to strike an amended complaint that disputedly exceeded the scope of the court’s order given the absence of prejudice to the opposing parties and the infancy of the case); see also Allen v. Cty. of Los Angeles, No. CV 07-102-R (SH), 2009 WL 666449, at *2 (C.D. Cal. Mar. 12, 2009) (collecting cases). Slide Fire has not made any argument to establish prejudice, and the Court cannot discern any conceivable harm. Given this case’s procedural posture, particularly the Court’s imposition of a stay pending resolution of the present Motion to Dismiss, any prejudice resulting from Plaintiffs’ addition of new claims is significantly mitigated.

         B. PLCAA

         Congress enacted the PLCAA upon finding that manufacturers and sellers of firearms “are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products . . . that function as designed and intended.” Ileto v. Glock, Inc., 565 F.3d 1126, 1135 (9th Cir. 2009) (quoting 15 U.S.C. § 7901(a)(5)). To that end, the PLCAA provides that federal courts must “immediately dismiss[]” any case meeting the definition of a “qualified civil liability action.” 15 U.S.C. § 7902(b). A qualified civil liability action encompasses, among other things, civil actions “brought by any person against a manufacturer or seller of a qualified product . . . for damages . . . or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include [specified enumerated exceptions.]” Id. § 7903(5)(A).

         The Court previously determined that bump stocks are component parts of firearms, rendering them qualified products under the PLCAA. See Prescott, 341 F.Supp. 3d at 1187– 90; see also 15 U.S.C. § 7903(4) (defining “qualified product” as “a firearm . . . or a component part of a firearm or ammunition . . . .”). Further, it is undisputed that this is a “civil action” for damages against a manufacturer and seller of a qualified product arising from the “misuse of a qualified product by . . . a third party.” See Id . § 7903(5)(A).

         Consequently, the PLCAA bars Plaintiffs from asserting their general tort claims[3]unless an exception to the PLCAA applies here. Ileto, 565 F.3d at 1136.

         C. Exceptions to the PLCAA

         In enacting the PLCAA, Congress codified six exceptions to the definition of “qualified civil liability action, ” pursuant to which a seller or manufacturer of qualified products may be liable for a third party’s unlawful misuse of its products. 15 U.S.C. § 7903(5)(A).

         Of those six exceptions, Plaintiffs point to two that may apply here, thus permitting the case to proceed: (a) “an action brought against a seller for negligent entrustment or negligence per se;” and (b) “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought[.]” Id. §§ 7903(5)(A)(ii)–(iii); (Pls.’ Resp. to MTD (“Resp.”) 2:19–24, 3:12–14:2, ECF No. 35). The Court addresses each exception in turn.[4]

         1. Negligent Entrustment and Negligence Per Se

         The PLCAA does not bar actions against sellers of qualified products for negligent entrustment or negligence per se. 15 U.S.C. § 7903(5)(A)(ii). The PLCAA defines negligent entrustment as “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” Id. § 7903(5)(B). Because the PLCAA does not “create a public or private cause of action or remedy, ” id. § 7903(5)(C), courts look to state law.

         a) Negligent Entrustment

         Under Nevada law, “[t]he key elements are whether an entrustment actually occurred, and whether the entrustment was negligent.” Zugel by Zugel v. Miller, 688 P.2d 310, 313 (Nev. 1984). Negligent entrustment applies “where one who has the right to control [an instrumentality] permits another to use it in circumstances where he knows or should know that such use may create an unreasonable risk of harm to others.” Goggin v. Enter. Leasing Co.-W., LLC, 324 F.Supp. 3d 1179, 1182 (D. Nev. 2018) (quoting Mills v. Continental Parking Corp., 475 P.2d 673, 674 (1970)).

         Slide Fire argues that this claim fails because there is no allegation that Slide Fire sold, or otherwise entrusted the shooter with, a bump stock. (MTD at 14–15). Plaintiffs respond that the negligent entrustment theory is cognizable under a theory of indirect entrustment and, therefore, they need not plead a direct sale to demonstrate this claim’s plausibility. (Resp. 10:20–26, ECF No. 35).

         The Court agrees with Slide Fire that the entrustment element is lacking from this claim. Even under Plaintiffs’ indirect entrustment theory, the allegations tying Slide Fire to the shooter are too attenuated to constitute entrustment.

         b) Negligence Per Se

         To prevail under a negligence per se claim, a plaintiff must prove that (1) he or she belongs to a class of persons that a statute is intended to protect, (2) the plaintiff’s injuries are the type the statute is intended to prevent, (3) the defendant violated the statute, (4) the violation was the legal cause of the plaintiff’s injury, and (5) the plaintiff suffered damages. Anderson v. Baltrusaitis, 944 P.2d 797, 799 (Nev. 1997).

         Plaintiffs assert that Slide Fire violated NRS 104.2314, which codifies the implied warranty of merchantability in Nevada, and NRS 598.0915(5), which counts knowingly false representations as to the characteristics of goods and services as a deceptive trade practice under Nevada law. See Nev. Rev. Stat. 104.2314; Nev. Rev. Stat. 598.0915(5). Slide Fire argues that these statutes do not support a claim for negligence per se under ...

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