Ileto v. Glock, Inc.

• Decision Date: 25 March 2002
• Docket Number: No. CV 01-9762 ABC (RNBx).,CV 01-9762 ABC (RNBx).
• Citation: 194 F.Supp.2d 1040
• Court: U.S. District Court — Central District of California
• Parties: Lilian S. ILETO, et al., Plaintiffs, v. GLOCK, INC., et al., Defendants.

194 F.Supp.2d 1040

Lilian S. ILETO, et al., Plaintiffs, v. GLOCK, INC., et al., Defendants.

No. CV 01-9762 ABC (RNBx).

United States District Court, C.D. California.

March 25, 2002.

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Peter Nordberg, Esq., Berger & Montague, Philadelphia, PA, Frank Hobbs, Esq.; Geoffrey Gold, Esq., Rutter Hobbs & Davidoff, Los Angeles, CA, for Plaintiffs.

Daniel Dik, Esq.; Todd Evan Croutch, Esq., Fonda & Fraser, Los Angeles, CA, John F. Renzulli, Esq., Christopher Renzulli, Esq., Renzulli, Pisciotti & Renzulli, LLP, New York, NY, R.D. Kirwan, Esq., Robert T.N. Tafoya, Esq., Akin, Gump, Strauss, Hauer & Feld, LLP, Los Angeles, CA, for Defendants.

ORDER RE: DEFENDANT GLOCK, INC.'S MOTION TO DISMISS FIRST AMENDED COMPLAINT

COLLINS, District Judge.

This case arises from two highly-publicized shooting incidents in the Los Angeles area in the summer of 1999. Plaintiffs, the victims and their family members, have brought suit against the manufacturers of the firearms the assailant, Buford O. Furrow, Jr., used and had in his possession at the time. The Motion to Dismiss of Glock, Inc. came on regularly for hearing before this Court on March 25, 2002. Upon consideration of the submissions of the parties, the case file, and the argument of counsel, the Court hereby GRANTS the Motion.

I. PROCEDURAL HISTORY

Plaintiffs Lilian Santos Ileto, sole surviving parent of the deceased, Joseph Santos Ileto; Joshua Stepakoff, a minor through his parents, Loren Lieb and Alan B. Stepakoff; Mindy Finkelstein, a minor, by her parents, David and Donna Finkelstein; Benjamin Kadish, a minor through his parents, Eleanor and Charles Kadish; and Nathan Powers, a minor through his parents, Gail and John Michael Powers, filed a Complaint in Los Angeles Superior Court on August 9, 2000, against Defendants Glock, Inc.; Glock GmbH; China North Industries Corp. ("China North" or "Norinco"); Davis Industries; Republic Arms, Inc.; Jimmy L. Davis; Maadi; Bushmaster Firearms; Imbel; The Loaner Pawnshop Too; David McGee; and 150 Doe Defendants. The Complaint alleged seven causes of action. The first two claims were brought by Ms. Ileto against all Defendants, for survival and wrongful death. The remaining claims were brought by all Plaintiffs against all Defendants: for public nuisance, negligence, negligent entrustment, and unfair business practices. The Complaint sought certification of a class, damages, and injunctive relief.

Defendants Loaner Pawnshop and David McGee successfully moved for dismissal for lack of personal jurisdiction. See Joint Status Report filed December 21, 2001 ("Status Report") at 3:7-8. Defendants Republic Arms, Inc. and Jimmy L. Davis answered. Id. at 3:8-9. The Superior Court, the Hon. Anthony Mohr, granted the demurrers of Defendants Glock, Inc. and Bushmaster Firearms, Inc., and dismissed all claims with leave to amend. Id. at 3:9-11.

Plaintiffs filed a First Amended Complaint ("FAC") on May 23, 2001.¹ The FAC retained Ms. Ileto's survival and wrongful death claims and all Plaintiffs' negligence and public nuisance claims and the prayer for damages. Plaintiffs did not reassert their remaining claims, including the class claims and the claim for injunctive relief. All Defendants who had been served joined in renewed demurrers. Status Report at 3:15.

On October 17, 2001, China North was first served with the initial Complaint. See Notice of Removal ¶ 1, 11. 16-17. On November 14, 2001, China North removed the action to this Court under 28 U.S.C. § 1330 and 28 U.S.C. § 1603, on the ground that it is an instrumentality of a foreign state and, therefore, this Court has original jurisdiction. Id. at ¶ 5. On December 6, 2001, the Court determined that removal was proper and the Court has jurisdiction over the action. See Civil Minutes —General dated Dec. 6, 2001.

At a status conference on January 7, 2002, the Court declined to hear the demurrers filed in the Superior Court and ordered Defendants to file any motions to dismiss under the Federal Rules of Civil Procedure within 30 days. See Civil Minutes —General dated January 7, 2002. On February 5, 2002, Defendants Republic Arms, Inc., Jimmy L. Davis, and Davis Industries filed a Motion to Dismiss. On February 6, 2002, Defendants Quality Parts Company and Bushmaster Firearms filed a Motion to Dismiss. On February 7, 2002, Defendants China North and Glock, Inc., each filed a Motion to Dismiss.² The Court continued the hearing on all four motions to March 25, 2002, and set a briefing schedule. See Civil Minutes—General dated Feb. 11, 2002; Civil Minutes—General dated Feb. 13, 2002.

In this Order, the Court addresses the Motion to Dismiss of Glock, Inc.³ Plaintiffs filed an Opposition on March 4, 2002. Glock filed a Reply on March 11, 2002.

II. LEGAL STANDARDS

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. See Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). "The Rule 8 standard contains `a powerful presumption against rejecting pleadings for failure to state a claim.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988); accord Gilligan, 108 F.3d at 249 ("A complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'").

The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). Moreover, the complaint must be read in the light most favorable to plaintiff. See id. However, the Court need not accept as true any unreasonable inferences, unwarranted deductions of fact, and/or conclusory legal allegations cast in the form of factual allegations. See, e.g., Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).

Moreover, in ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint (e.g., those facts presented in briefs, affidavits, or discovery materials). See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994). A court may, however, consider exhibits submitted with the complaint. See id. at 453-54. Also, a court may consider documents which are not physically attached to the complaint but "whose contents are alleged in [the] complaint and whose authenticity no party questions." Id. at 454. Further, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201. Mir, M.D. v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir.1988).

Plaintiffs' negligence and public nuisance claims present questions of California state law. There are no supreme court or appellate court decisions in California that have decided these particular issues. Therefore, the Court "must consider `all available data' to anticipate how the California Supreme Court might decide the issue." DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992) (quoting Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir.1982)).

III. FACTUAL ALLEGATIONS⁴

On August 10, 1999, Buford Furrow approached the North Valley Jewish Community Center ("JCC") in Granada Hills, California. Furrow had in his possession a number of firearms: Glock's model 26, a 9mm handgun; Norinco's model 320, a 9mm rifle with an illegally shortened barrel; Maadi's model RML, a 7.62 caliber automatic rifle; Bushmaster's model XM15-E25, a .223 caliber rifle; two of Imbel's model L1A1, a .308 caliber rifle; and Davis Industries' model D-22, a .22 caliber handgun. FAC ¶ 23.

Furrow entered the JCC and shot and injured three children, one teenager, and one adult. Two of the children were Plantiffs Joshua Stepakoff and Benjamin Kadish, who were attending summer camp at the JCC. Six-year-old Joshua was shot twice in the left lower leg and left hip, fracturing or breaking a bone. Five-year-old Benjamin was shot twice in the buttocks and left leg, fracturing his left femur, severing an artery, and causing major internal injuries. Plaintiff Mandy Finkelstein, then 16 years old and a camp counselor, was shot twice in the right leg. FAC ¶ 24. Four-year-old Nathan Powers, also a camper, witnessed the events at the JCC, which has caused him great mental suffering, anguish, and anxiety. FAC ¶ 25.

After fleeing the JCC, with the same firearms in his possession, Furrow shot and killed Joseph Ileto, an employee of the U.S. Postal Service and the son of Plaintiff Lilian Ileto, while Ileto was delivering his mail route. FAC ¶ 26.⁵

Among the evidence recovered at both crime scenes were 9mm casings. Three of the firearms in Furrow's possession used 9mm ammunition: the Norinco, the Glock, and the Davis. FAC ¶ 27.

At the time of the 1999 shootings, Furrow was prohibited under federal law from possessing, purchasing, or using any firearm, having been committed to a psychiatric hospital in 1998, placed under felony indictment in 1998, and convicted of assault in the second degree on May 21, 1999, in Washington State. FAC ¶ 28.

Defendants, who are sued individually and jointly and severally, are the manufacturers, importers, marketers, distributors, and dealers of firearms found illegally and used in the commission of crimes in Los Angeles. FAC ¶ 6. Plaintiffs have alleged that Defendants produce, market, distribute and sell substantially more firearms than they reasonably expect to be bought by law-abiding purchasers, and they knowingly participate in and...