Lowy v. Daniel Def.

1

KAREN LOWY, et al., Plaintiffs, v. DANIEL DEFENSE, LLC, et al., Defendants.

Civil Action No. 1:23-cv-1338

United States District Court, E.D. Virginia, Alexandria Division

July 24, 2024

MEMORANDUM OPINION AND ORDER

CLAUDE M. MILTON UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the court on motions to dismiss submitted by all fifteen defendants.

Plaintiffs' suit arises from a shooting on April 22, 2022, at Edmund Burke School in Washington, D.C. That afternoon, when a gunman (“Shooter”) opened fire from an apartment window overlooking the school, Plaintiff Karen Lowy was waiting outside the school to pick up her daughter, Plaintiff N.T., and Plaintiff Antonio Harris was a security guard at the school. Bullets struck Lowy and Harris while N.T sheltered inside the school. In addition to Lowy and Harris's physical injuries, plaintiffs seek to recover for emotional distress.

Plaintiffs describe defendants as manufacturers of assault rifles, rifle accessories, and ammunition. Plaintiffs allege that defendants' liability stems from their negligence negligence per se, and violations of Virginia statutes in a “foreseeable and predictable chain of events” that led to plaintiffs' injuries. Specifically, plaintiffs claim that defendants “have deceptively and unfairly marketed their assault rifles, rifle accessories, and ammunition in ways designed to appeal to the impulsive, risk-taking tendencies of civilian adolescent and post-adolescent males.” Those men, according to plaintiffs, then foreseeably use defendants' products in mass shootings. “Upon information and belief,” plaintiffs claim that Shooter was one of the men influenced by defendants' marketing practices and relied on defendants' advertisements when purchasing his weapons in Virginia. Plaintiffs allege that, by these acts, all fifteen defendants violated the Virginia False Advertising Statute Va. Code Ann. § 18.2-216, and the Virginia Consumer Protection Act, Va. Code Ann. § 59.1-196 et seq. In addition, plaintiffs claim six defendants committed negligence and another six committed negligence per se for violations of the National Firearms Act, 26 U.S.C. § 5801 et seq., and the Virginia Uniform Machine Gun Act, Va. Code Ann. § 18.2-288 et seq. Plaintiffs seek compensatory and punitive damages owing to these alleged acts. The fifteen defendants, represented by eleven motions to dismiss, seek to dismiss plaintiffs' complaint for fading to invoke the Court's subject-matter jurisdiction under Rule 12(b)(1) and failing to state a claim under Rule 12(b)(6).

Challenges to the Court's subject-matter jurisdiction under Rule 12(b)(1) may be either facial or factual. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017). A facial challenge, like defendants', contends that “a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. (quoting Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). Faced with such a challenge, the Court “must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.” Kerns, 585 F.3d at 193. “A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims pled in a complaint.” Nadendla v. WakeMed, 24 F.4th 299, 304 (4th Cir. 2022) (quoting ACA Fin. Guar. Corp, v. City of Buena Vista, 917 F.3d 206, 211 (4th Cir. 2019)). Claims survive a Rule 12(b)(6) challenge if the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Put another way, a plaintiff alleges sufficient facts when the court can “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Defendants first challenge plaintiffs' standing. “To invoke federal jurisdiction, a plaintiff bears the burden of establishing the three ‘irreducible minimum requirements' of Article III standing:

(1) an injury-in-fact (i.e., a concrete and particularized invasion of a legally protected interest); (2) causation (i.e., a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely speculative that the plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit).”

Beck, 848 F.3d at 269 (quoting David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)). Defendants' standing challenge focuses on the second requirement, causation. Alleging causation does not require plaintiffs to allege that the defendants' actions were “the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 169 (1997). In fact, “the causation element of standing does not require the challenged action to be the sole or even immediate cause of the injury.” Sierra Club v. U.S. Dep't of the Interior, 899 F.3d 260, 284 (4th Cir. 2018) (citing id.). However, when plaintiffs plead that a third party's actions bridge the causal chain between defendants' conduct and plaintiffs' injuries, that indirectness “may make it substantially more difficult to meet the minimum requirement of Art. III.” Warth v. Seldin, 422 U.S. 490 (1975). Plaintiffs cannot satisfy Article Ill's causation requirement if their injury resulted “from the independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rts, Org., 426 U.S. 26, 42 (1976) (emphasis added). “Indeed, where multiple actors are involved, a plaintiff can establish causation only if the defendant's conduct had a ‘determinative or coercive effect upon the action of someone else.'” Alvarez v. Becerra, No. 21-2317, 2023 WL 2908819, at *3 (4th Cir. Apr. 12, 2023) (quoting Bennett, 520 U.S. at 169).

Here, a third party bridges the alleged causal chain between defendants' conduct and plaintiffs' injuries. At the beginning of the alleged causal chain, defendants marketed their weapons and weapons accessories to potential consumers in Virginia. At the end, Shooter injured plaintiffs by firing at an elementary school. This chain relies on Shooter, a third party not before the Court, to link defendants to plaintiffs' injuries. Accordingly, to establish standing against defendants, plaintiffs must allege that defendants' conduct had a determinative or coercive effect upon Shooter's actions.

Much of plaintiffs' complaint concerns defendants' marketing to Virginia residents generally and “young men like the Shooter,” id. ¶ 57, but few paragraphs allege the effect of defendants' marketing on Shooter specifically. To link Shooter's actions to Defendant Daniel Defense, LLC, for example, plaintiffs plead that Daniel Defense “advertised to Virginia residents such as the Shooter,” Dkt. No. 1 ¶¶ 149, 240, and allege “[u]pon information and belief, the Shooter relied on Defendant Daniel Defense, LLC's advertisements to purchase the DDM4 V7 rifle and DD magazine,” id. ¶ 243 (Counts XV-XXVI allege identical reliance on other defendants' advertisements). These allegations fail for two reasons.

First, concerning Shooter's reliance on defendants' marketing, plaintiffs' allegations are conclusory. Generally, a plaintiff may plead “based on ‘information and belief if such plaintiff is in a position of uncertainty because the necessary evidence is controlled by the defendant.” Ridenour v. Multi-Color Corp., 147 F.Supp.3d 452, 456 (E.D. Va. 2015). But, like all other allegations, allegations pled upon information and belief “may not be wholly conclusory.” Kashdan v. George Mason Univ., 70 F.4th 694, 701 (4th Cir. 2023). If “not supported by any well-pled facts that exist independent of [plaintiffs'] legal conclusions,” allegations pled upon information and belief fail. Id. Such is the case here: no factual allegations in the complaint support the conclusion that Shooter relied on defendants' marketing. The complaint does not suggest defendants control such evidence of Shooter's reliance and does no more than speculate that Shooter, like other young men in Virginia, observed defendants' advertisements. Without more support, these pleadings fail to raise plaintiffs' right to relief above the speculative level and can proceed no further. Lokhova v. Halper, 995 F.3d 134, 148 (4^th Cir. 2021) (“It is well established that speculative conclusions are insufficient to survive a motion to dismiss.”).

Second, viewed most optimistically, plaintiffs allege that Shooter relied on defendants' advertisements when choosing to purchase defendants' products. The Court cannot transform that allegation into an allegation that defendants' marketing had a “determinative or coercive effect” on Shooters' decision to shoot at plaintiffs. While the bounds of Article Ill's causation requirement may at times seem opaque, “[c]ausation makes its most useful contribution to standing analysis in circumstances that show a clear break in the causal chain.” 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.5 (3d ed. 2024). Here, the actions of a third party injured plaintiffs. As explained above, completing the causal chain requires plaintiffs to allege defendants' conduct had a determinative or coercive effect on that third party's injurious actions. This complaint, however, fails to make that allegation. Maybe defendants' advertising coerced Shooter to purchase defendants' products (and that allegation, as discussed above, is speculative), but absent is any allegation that defendants' advertising coerced Shooter to attack the elementary school. Without that allegation, plaintiffs' alleged causal chain is incomplete, and plaintiffs lack standing against these defendants.

But even had plaintiffs invoked standing, the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. § 7901 et seq., blocks...