United States District Court, D. Nevada
DEVAN PRESCOTT, individually and on behalf of all those similarly situated, et al., Plaintiffs,
SLIDE FIRE SOLUTIONS, LP, Defendant.
M. Navarro District Judge.
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
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.
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. ¶¶
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.).
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
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).
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).
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).
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.
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. ¶¶
Fire now moves to dismiss each of Plaintiffs’ claims in
that Amended Complaint. (See Def.’s Mot. to
Dismiss (“MTD”), ECF No. 34).
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.
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).
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).
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).
Scope of Amendment
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
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).
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. 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.
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
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).
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).
the PLCAA bars Plaintiffs from asserting their general tort
claimsunless an exception to the PLCAA applies
here. Ileto, 565 F.3d at 1136.
Exceptions to the PLCAA
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).
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.
Negligent Entrustment and Negligence Per Se
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.
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)).
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.
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.
Negligence Per Se
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).
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