Johnson v. Glock, Inc.

STEVEN C. JOHNSON, Plaintiff, v. GLOCK, INC., et al., Defendants.

Case No. 3:20-cv-08807-WHO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 8, 2021

ORDER GRANTING MOTION TO DISMISS

Re: Dkt. No. 14

Plaintiff Steven Johnson alleges, on behalf of himself and a proposed class, that certain handguns designed, made, and sold by defendants Glock, Inc., and Glock Ges.m.b.H (collectively, "Glock") have a defect that can cause them to damage reusable shell casings and "blow out" a piece of casing. But he never pleads basic facts, like who he bought his Glock from, when, or how he was injured by the alleged defect. This pleading failure infects each of his causes of action. Before me is Glock's motion to dismiss, which I grant with leave to amend.

BACKGROUND

At this stage, all facts are drawn from the complaint or are subject to judicial notice. Johnson is a resident of Oakland, California, who owns a .45 caliber gun made by Glock. First Amended Complaint ("FAC") [Dkt. No. 1-2] ¶ 20. He alleges that his firearm was "designed, manufactured, assembled, to be tested, marketed, imported, warranted, distributed, and sold by" Glock. Id. He does not, however, allege that he purchased the gun from Glock. Nor does he allege any information about how he acquired it, other than that it was in Alameda County. Id.

Johnson alleges that a certain group of Glock's hand guns contain a defect. More specifically, he alleges that the defect exists in several dozen models of Glock hand gun as well as those with "similar chamber design[s] and feed ramp length[s]" and potentially in other Glock models. Id. ¶ 32. This defect, as Johnson alleges it, stems from the guns' "feed ramps." Feed ramps guide rounds into the guns' chambers. See id. ¶¶ 2-3. According to Johnson, the feed ramps in these Glock models are too long, resulting in insufficient "support" for a round once it is in the chamber. See id. ¶ 2. Johnson claims that this lack of support causes undue pressure to be placed on the round when it is fired in the "6 o'clock position." Id.

This pressure, which Johnson labels a defect, has two purported effects relevant here. First, Johnson alleges that the defect causes damage to the brass casings of the rounds by creating a "bulge" on them after they are fired. Id. ¶ 3. This bulge—which Johnson alleges is a commonly known consequence of using many models of Glock—renders brass casings "useless, nonfunctional, and valueless." Id. ¶ 4. While consumers could normally reuse these casings to make reloaded ammunition, the alleged damage from the defect makes reuse impracticable and unsafe. See id. ¶¶ 4-5. Second, Johnson alleges that the defect makes these models dangerous. He claims that it can (though does not necessarily) create a "blow out" or "kaboom." Id. ¶ 2. A blow out, Johnson asserts, is when the round or casing separates and "dislodge[s] a piece of the casing." Id. Johnson does not identify anyone who has been harmed in this manner.

Johnson filed a complaint in California state court in October 2020 and filed the FAC in November 2020. Glock removed the case to this court in December 2020 under the Class Action Fairness Act ("CAFA"), 28 U.S.C. §§ 1332(d), 1453. Dkt. No. 1. The FAC alleges nine causes of action: (1) violation of the California Consumers Legal Remedies Act ("CLRA"), (2) negligence, (3) strict products liability, (4) breach of express warranty, (5) breach of the implied warranty of merchantability, (6) fraudulent omission, (7) violation of California's Unfair Competition Law ("UCL"), (8) violation of California's False Advertising Law ("FAL"), and (9) violation of the federal Magnuson-Moss Warranty Act ("MMWA"). Johnson brings all but the MMWA action on behalf of himself and a proposed class; he brings the MMWA claim only in an individual capacity. See Plaintiff's Opposition to Glock's Motion to Dismiss ("Oppo.") [Dkt. No. 21] 19.

Johnson seeks to certify a class defined as, "All current and former owners of a Class Gun(as defined herein) that was purchased in the State of California."¹ FAC at 14. "Class guns," in turn, are defined in the FAC as "certain hand guns," id. ¶ 1, and later elaborated on as including but not being limited to several dozen specific models and those with "similar" chamber and feed ramp designs, see id. ¶ 32. Johnson does not put any temporal limits on the class. He also does not allege that any of his casings have ever been damaged by the defect or that his gun has suffered a blow out. He alleges that "[h]ad Plaintiff and the other members of the California Sub-Class known of the Unsupported Chamber Defect within the Class []Guns, they would not have purchased the Class Guns or would have paid less for the Class Guns." Id. ¶ 128. He claims that his gun shares the defect. Id.

Glock now moves to dismiss Johnson's claims and strike his class allegations. See Motion to Dismiss the FAC and Strike Plaintiff's Class Allegations ("Mot.") [Dkt. No. 14]. I held a hearing on the motion on February 3, 2021.²

LEGAL STANDARD

Under Federal Rule of Civil Procedure ("FRCP") 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." See Twombly, 550 U.S. at 555, 570.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, theCourt accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

Under FRCP 9(b), a party must "state with particularity the circumstances constituting fraud or mistake," including "the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). However, "Rule 9(b) requires only that the circumstances of fraud be stated with particularity; other facts may be pleaded generally, or in accordance with Rule 8." U.S. ex rel. Lee v. Corinthian Colls., 655 F.3d 984, 992 (9th Cir. 2011).

If the court dismisses the complaint, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making this determination, the court should consider factors such as "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." See Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).

DISCUSSION

I. MISREPRESENTATION CLAIMS

Johnson's first cause of action is for violation of the CLRA, his sixth is for fraudulent omission, his seventh is for violation of the UCL, and his eighth is for violation of the FAL. The FAC could reasonably be read to allege both affirmative misrepresentations and omissions, and that is how Glock responded in its Motion. Johnson's Opposition, however, makes clear that he is only alleging omissions claims and that the affirmative statements are relevant only to the extent they are partial representations related to the omissions. See Oppo. 4-9. Accordingly, I analyze these claims as omissions.

In brief, the UCL prohibits any "unlawful, unfair or fraudulent business act or practice."CAL. BUS. & PROF. CODE. § 17200. The FAL prohibits any "unfair, deceptive, untrue, or misleading advertising." Id. § 17500. And the CLRA prohibits "unfair methods of competition and unfair or deceptive acts or practices." CAL. CIV. CODE § 1770. Each statute has individual facets that sometimes require distinct analysis. At their core, however, the FAL, CLRA, and the "fraudulent" prong of the UCL are governed by the reasonable consumer test. Williams v. Gerber Prod. Co., 552 F.3d 934 (9th Cir. 2008); In re Tobacco II Cases, 46 Cal. 4th 298, 312 (2009). Further, the "unlawful" prong of the UCL turns on other legal violations. And California's common law fraudulent omission cause of action depends on analysis of the same alleged omissions as Johnson alleges violate the statutes. Accordingly, courts frequently analyze the common elements of these violations together, especially at the pleadings stage. See Punian v. Gillette Co., No. 14-CV-05028-LHK, 2016 WL 1029607, at *5 (N.D. Cal. Mar. 15, 2016) (collecting cases).

A. Rule 8

As an initial matter, and separate from its arguments about any particular cause of action or element, Glock contends that Johnson's pleading does not meet Rule 8 and the Twombly/Iqbal standard. Glock's argument on this point is general and brief. See Mot. 5; 1-2. It argues that "[t]hough each cause of action depends on the existence of a defect, Plaintiff does not allege that he has actually experienced one." Mot. 5. That is incorrect; the FAC alleges that Johnson "owns a Class Gun," FAC ¶ 20, which is defined as guns that have the defect. Indeed, he explicitly alleges that it is defective and was at the time of purchase. Id....