Ortiz v. Sig Sauer, Inc.
| Decision Date | 01 April 2022 |
| Docket Number | Civil No. 19-cv-1025-JL |
| Parties | Derick ORTIZ, v. SIG SAUER, INC. |
| Court | U.S. District Court — District of New Hampshire |
Benjamin T. King, Megan E. Douglass, Charles G. Douglas, III, Douglas Leonard & Garvey PC, Concord, NH, Joseph Marchese, Joshua Arisohn, Bursor & Fisher, P.A., New York, NY, Neal J. Deckant, Bursor & Fisher, P.A., Walnut Creek, CA, Scott A. Bursor, Bursor & Fisher, P.A., Miami, FL, for Derick Ortiz.
Michael J. Quinn, McLane Middleton, Portsmouth, NH, Robert L. Joyce, Brian Keith Gibson, Littleton Joyce Ughetta Park & Kelly LLP, Purchase, NY, Benjamin B. Folsom, McLane Middleton, Manchester, NH, Brent Dwerlkotte, Shook, Hardy & Bacon L.L.P., Kansas City, MO, for Sig Sauer, Inc.
This is a putative class action concerning an alleged design defect in a semi-automatic pistol, the SIG P320. The defendant, Sig Sauer Inc., is a New Hampshire-based firearms manufacturer that produces the P320 pistol. The plaintiff, Derick Ortiz, is an Arizona law enforcement officer who purchased the civilian version of the P320 in 2016 to use as his primary duty pistol. In September 2019, Ortiz filed suit against Sig Sauer, alleging that the P320 has a design defect that makes it susceptible to "drop firing," or discharging after being dropped.1 Ortiz seeks to represent a nationwide class of purchasers and to recover for violation of the Magnuson-Moss Warranty Act, breach of express warranty, breach of implied warranty of merchantability, unjust enrichment, fraudulent concealment, fraud, and violation of the Arizona Consumer Fraud Act.2
In 2017, roughly two years before Ortiz filed his complaint, Sig Sauer launched the Voluntary Upgrade Program, which offers P320 owners a free upgrade aimed at enhancing the pistol's drop safety. Now, Sig Sauer moves for summary judgment as to all of Ortiz's claims, on the basis that Ortiz is not entitled to damages because the VUP provides him with a complete remedy—a defect-free P320—at no cost to him. Separately, Sig Sauer also moves for summary judgment on Ortiz's breach of warranty and MMWA claims, arguing that Arizona, and not New Hampshire, law applies to the claims, and that Ortiz fails to satisfy Arizona's privity requirement for such claims.
The court has class action jurisdiction over this case under 28 U.S.C. § 1332(d) (diversity). After considering the parties’ submissions and hearing oral argument, the court grants Sig Sauer's motion in part and denies it in part. First, the court concludes that Arizona law applies to the breach of warranty and MMWA claims, and Sig Sauer merits summary judgment as to these claims because Ortiz is not in privity with Sig Sauer. The court denies Sig Sauer's motion as to Ortiz's remaining claims, finding that Sig Sauer's damages-based argument is unavailing on this record. Ortiz provided evidence establishing genuine disputes of material fact as to the VUP's availability to him and its effectiveness in curing the alleged drop defect. These factual disputes preclude the court from concluding that the VUP can make Ortiz whole and thereby obviates the need for any further damages.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue is one that could be resolved in favor of either party, and a material fact is one that has the potential of affecting the outcome of the case." Vera v. McHugh, 622 F.3d 17, 26 (1st Cir. 2010) (internal quotation omitted).
At the summary judgment stage, the moving party must "assert the absence of a genuine issue of material fact and then support that assertion by affidavits, admissions, or other materials of evidentiary quality." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003) (citing Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir. 1992) ). Where, as here, the nonmovant (the plaintiff) bears the ultimate burden of proof, once the movant has made the requisite showing, the nonmovant can no longer "rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute." Torres-Martínez v. P.R. Dep't of Corr., 485 F.3d 19, 22 (1st Cir. 2007) (quoting McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) ). The "party opposing summary judgment must ‘present definite, competent evidence to rebut the motion.’ " Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) ). "Mere allegations, or conjecture unsupported in the record, are insufficient to raise a genuine issue of material fact." August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992).
As it is obligated to do in the summary judgment context, the court "rehearse[s] the facts in the light most favorable to the nonmoving party (here, the plaintiff), consistent with record support," and gives them "the benefit of all reasonable inferences that those facts will bear." Noviello v. City of Boston, 398 F.3d 76, 82 (1st Cir. 2005) (internal citation omitted).
The SIG P320 pistol is a semiautomatic, striker-fired handgun manufactured by the defendant, Sig Sauer. Prior to entering the pistol into the market, Sig Sauer tested it for compliance with certain firearms industry standards. In particular, Sig Sauer performed drop-fire tests to determine whether the P320 was vulnerable to discharging after being dropped. The goal of the tests was to determine whether the primer would ignite (or nearly ignite) upon impact, likely causing the gun to fire.3
Various organizations promulgate their own standards for drop-fire testing, including the American National Standards Institute / Sporting Arms and Ammunition Manufacturers Institute (ANSI/SAAMI), the North American Treaty Organization, the National Institute for Justice,4 the United States Army, and the Federal Bureau of Investigation.5 The testing "standards vary chiefly in their requirements for drop height, gun orientation, safety position, and impact surface."6
While testing, Sig Sauer's technicians "encountered primer ignition" after dropping the P320 pistol on "a couple" of occasions, including in December 2013 and April 2014, "and the engineers were immediately notified."7 Sig Sauer determined that the pistol satisfied the drop safety standards propounded by the NIJ and ANSI/SAAMI.8 ,9 Sales of the P320 pistol began in January 2014, and by August 2017, consumers in the U.S. commercial market had purchased 314,059 P320 pistols.10
Sig Sauer began receiving notice of P320 drop fires by late 2016 or early 2017. At that time, Caracal, a foreign firearms manufacturer that contracted with Sig Sauer to sell a version of the P320 under Caracal's brand name, notified Sig Sauer that the P320 discharged during drop testing when dropped at a-30° orientation.11 Meanwhile, in January 2017, the U.S. Army awarded Sig Sauer a production contract for M17 and M18 pistols, which had "a substantially similar design" as the P320.12 Upon testing the pistols, the Army also found that they discharged at times when dropped, including at the-30° orientation.13
Through its own testing, Sig Sauer confirmed the Army's findings and observed that "the trigger was pulling itself ... when dropped at certain angles."14 The Army instructed Sig Sauer to remedy the issue, and Sig Sauer responded by "implementing lightweight components in the trigger group mechanism."15 During that same year, the Army found that "the [modification] corrected the deficiency[,] and the pistol no longer fired when dropped."16
Later that year, on August 5, 2017, an employee at Omaha Outdoors, a store that sells "a lot of Sig [Sauer] [products] including the P320," emailed two individuals at Sig Sauer to inform them that Omaha tested "four different 320s" and found that "three of these four 320s ... consistently" fired or nearly fired when dropped at a-30° angle.17 The Omaha employee, Andrew Tuohy, provided links to YouTube video recordings of Omaha's drop-fire tests, and he stated that Omaha communicated with Sig Sauer's customer service department about this issue.
Days later, individuals connected to a blog entitled The Truth About Guns conducted drop tests on a newly purchased P320 and confirmed Omaha's findings, and then notified Sig Sauer of the same.18 After that, Sig Sauer replicated Omaha's test with the same results.19 Shortly thereafter, Sig Sauer decided to launch the Voluntary Upgrade Program, offering P320 owners the same component adjustments as Sig Sauer implemented earlier that year to address the M17 and M18 drop fires.20
On August 8, 2017, Sig Sauer publicly announced the launch of the Voluntary Upgrade Program for the P320 through a press release. In the press release, Sig Sauer explained that the P320 passed ANSI/SAAMI, NIJ, and other safety and testing protocols, but "[r]ecent evidence indicate[d] that dropping the P320 beyond U.S. standards for safety may cause an unintentional discharge."21 Accordingly, the press release continued, Sig Sauer was offering to customers "a number of enhancements in function, reliability, and overall safety including drop performance."22
Sig Sauer made more details about the VUP available on its website.23 The Frequently Asked Questions section stated, as the press release did, that the P320 "meets and exceeds" various U.S. safety standards, but "usually after multiple drops, at certain angles and conditions, a potential discharge of the firearm may result when dropped."24 The website explained that the upgraded design, which was also incorporated into all subsequent shipments of new P320s, "reduces the physical weight of the trigger,...
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