Prescott ex rel. Situated v. Slide Fire Solutions, LP

341 F.Supp.3d 1175

Devon PRESCOTT, Individually and on Behalf of All Those Similarly Situated, et al., Plaintiffs,

v.SLIDE FIRE SOLUTIONS, LP, Defendant.

Case No.: 2:18-cv-00296-GMN-GWF

United States District Court, D. Nevada.

Signed September 17, 2018

Aaron D. Ford, Erica D. Entsminger, Robert M. Adams, Robert T. Eglet, Richard Hy, Las Vegas, NV, Jonathan Lowy, Washington, DC, for Plaintiffs.

Danny C. Lallis, Pisciotti, Malsch & Buckley, P.C., Florham Park, NJ, F. Thomas Edwards, James D. Boyle, Holley Driggs Walch Fine Wray Puzey & Thompson, Las Vegas, NV, Jeffrey Martin Malsch, Pro Hac Vice, Pisciotti Malsch PC., White Plains, NY, for Defendant.

ORDER

Gloria M. Navarro, Chief JudgePending before the Court is the Motion to Dismiss, (ECF No. 8), filed by Defendant Slide Fire Solutions, LP ("Slide Fire"). Plaintiffs Devon Prescott, Brooke Freeman, and Tasaneeporn Upright (collectively "Plaintiffs") filed a Response, (ECF No. 17), and Slide Fire filed a Reply, (ECF No. 22). For the reasons discussed herein, Slide Fire's Motion to Dismiss is GRANTED .

I. BACKGROUND

This case arises from the tragic mass shooting that occurred at the Route 91 Harvest Music Festival (the "Festival") on October 1, 2017, in Las Vegas, Nevada. Plaintiffs were attendees of the Festival on that evening when Stephen Paddock ("Paddock") opened fire on the concert goers from the thirty-second floor of his hotel room at the Mandalay Bay. (Compl. ¶¶ 12, 38, ECF No. 1-2). In approximately eleven minutes, Paddock killed fifty-nine Festival attendees and injured hundreds more. (Id. ¶ 40). Paddock's rifles were equipped with sliding rifle stocks, commonly known as "bump stocks," which permit "certain semi-automatic weapons to fire at a rate comparable or equivalent to a fully automatic weapon." (Id. ¶¶ 40, 51).

Slide Fire is the designer, manufacturer, marketer, and seller of bump stocks, and holds itself out as the "sole patent holder of bump fire technology." (Id. ¶¶ 43, 46). According to the Complaint, "Slide Fire's bump stocks are purportedly designed for the disabled and intended to assist persons whose hands have limited mobility using firearms. However, statements made by Slide Fire inventor, Jeremiah Cottle, and [Slide Fire's] marketing," suggest that bump stocks are intended for consumers who seek a firearm that mimics a fully automatic weapon. (Id. ¶¶ 53, 54–58).

Plaintiffs filed their class action Complaint on October 6, 2017, bringing the following causes of action against Slide Fire: (1) negligence; (2) negligent infliction of emotional distress under a theory of bystander liability; (3) negligent infliction of emotional distress under a theory of direct liability; (4) negligent products liability; (5) strict products liability; and (6) public nuisance. (Id. ¶¶ 78–159). On February 23, 2018, Slide Fire filed the instant Motion to Dismiss pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. (See Mot. to Dismiss ("MTD") 2:1–3, ECF No. 8).

II. LEGAL STANDARD

A. Rule 12(b)(2)

Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Once a defendant raises the defense, the burden then falls on the plaintiff to prove sufficient facts to establish that jurisdiction is proper. Boschetto v. Hansing , 539 F.3d 1011, 1015 (9th Cir. 2008). A plaintiff can carry this burden only by presenting sufficient evidence to establish that (1) personal jurisdiction is proper under the laws of the state where it is asserted; and (2) the exercise of jurisdiction does not violate the defendant's right to due process secured by the United States Constitution. Ziegler v. Indian River Cnty. , 64 F.3d 470, 473 (9th Cir. 1995) ; Chan v. Soc'y Expeditions, Inc. , 39 F.3d 1398, 1404–05 (9th Cir. 1994).

When no federal statute governs personal jurisdiction, the district court applies the law of the forum state. See Panavision Int'l L.P. v. Toeppen , 141 F.3d 1316, 1320 (9th Cir. 1998). Nevada has authorized its courts to exercise jurisdiction over persons "on any basis not inconsistent with ... the Constitution of the United States." Nev. Rev. Stat. § 14.065. Thus, the Due Process Clause of the Fourteenth Amendment is the relevant constraint on Nevada's authority to bind a nonresident defendant to a judgment of its courts. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The Due Process Clause requires that the nonresident must have "certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ " Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ).

To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make "a prima facie showing of jurisdictional facts." Pebble Beach Co. v. Caddy , 453 F.3d 1151, 1154 (9th Cir. 2006) (quoting Doe v. Unocal , 248 F.3d 915, 922 (9th Cir. 2001) ). When analyzing such a motion to dismiss, "the court resolves all disputed facts in favor of the plaintiff." Id.

B. Rule 12(b)(6)

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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955. 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "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. 1989). "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, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

III. DISCUSSION

Slide Fire moves to dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2), asserting "there is no basis for general or specific personal jurisdiction because Slide Fire cannot be considered ‘at home’ in Nevada and Plaintiffs' purported causes of action do not arise from Slide Fire's connections to the forum." (MTD 3:16–18, ECF No. 8). Slide Fire further seeks dismissal under Rule 12(b)(6) on the grounds that the Protection of Lawful Commerce in Arms Act ("PLCAA") precludes manufacturers of component parts of firearms from liability based upon intentional criminal actions of third parties. (Id. 3:18–24). Further, even if the PLCAA were inapplicable, Slide Fire avers that Plaintiffs' causes of action fail under Nevada common law. (Id. 3:24–25).

A. Personal Jurisdiction

Personal jurisdiction is limited under the Constitution to defendants that have "certain minimum contacts with [a state] such that the maintenance of a suit does not offend ‘traditional notions of fair play and substantial justice.’ " Core–Vent Corp. v. Nobel Indus. AB , 11 F.3d 1482, 1485 (9th Cir. 1993) (quoting Int'l Shoe Co. , 326 U.S. at 316, 66 S.Ct. 154 ). Moreover, the contacts must arise out of relationships that the "defendant himself" created with the forum state. Burger King Corp. v. Rudzewicz , 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

A court determines sufficient minimum contacts either through specific jurisdiction, where the defendant's specific interaction with the forum relating to the cause of action gives rise to the contacts, or through general jurisdiction, where the contacts with the forum are systematic and continuous, warranting the exercise of personal jurisdiction. See, e.g. , Int'l Shoe Co. , 326 U.S. at 316, 66 S.Ct. 154. If such contacts are established, a court must still determine that...