Prescott v. Slide Fire Solutions, LP

• Decision Date: 26 September 2019
• Docket Number: Case No.: 2:18-cv-00296-GMN-BNW
• Citation: 410 F.Supp.3d 1123
• Parties: Devan PRESCOTT, individually and on behalf of all those similarly situated, et al., Plaintiffs, v. SLIDE FIRE SOLUTIONS, LP, Defendant.
• Court: U.S. District Court — District of Nevada

410 F.Supp.3d 1123

Devan 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-BNW

United States District Court, D. Nevada.

Signed September 26, 2019

Aaron D. Ford, Erica D. Entsminger, Robert M. Adams, Robert T. Eglet, Cassandra Cummings, Richard Hy, Eglet Adams, Las Vegas, NV, Jonathan Lowy, Pro Hac Vice, Washington, DC, Aaron D. Ford-AG, Nevada Attorney General, Carson City, NV, for Plaintiffs.

Danny C. Lallis, Pisciotti Malsch, 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, District Judge

Pending before the Court is the Motion to Dismiss, (ECF No. 34), filed by Defendant Slide Fire Solutions, LP ("Slide Fire"). Plaintiffs Devan Prescott and Brooke Freeman (collectively "Plaintiffs") filed a Response, (ECF No. 35), and Slide Fire filed a Reply, (ECF No. 36). For the reasons discussed herein, Slide Fire's Motion to Dismiss is DENIED in part and GRANTED in part .¹

I. BACKGROUND

This case arises from the tragic mass shooting that occurred during the Route 91 Harvest Music Festival (the "Route 91 Festival") on October 1, 2017, in Las Vegas, Nevada. That day, an individual opened fire on concertgoers from the thirty-second floor of his hotel room at the Mandalay Bay Resort and Casino. (Am. Compl. ¶¶ 1–2, 9, ECF No. 29). In approximately eleven minutes, the shooter killed fifty-eight people, and injured hundreds more. (Id. ¶ 12). Plaintiffs and their loved ones attended that Route 91 Festival.

According to Plaintiffs, this "military-style assault" could not have happened with a conventional handgun, rifle, or shotgun. (Id. ¶ 2). Rather, Plaintiffs allege that because the shooter's rifles were equipped with sliding rifle stocks, commonly known as "bump stocks," he was able to fire upon the concertgoers "at a rate comparable or equivalent to that of a fully automatic weapon." (Id. ¶ 11). Slide Fire designed, manufactured, marketed, and sold these bump stocks, and it holds itself out to be the "sole patent holder of bump fire technology." (Id. ¶¶ 53, 56).

Plaintiffs allege that Slide Fire obtained a favorable evaluation from the Bureau of Alcohol, Tobacco, Firearms and Explosives (the "ATF") by representing bump stocks as intended to assist persons with limited mobility in their hands. (Id. ¶ 15). Based upon this misrepresentation, according to Plaintiffs, the ATF concluded that bump stocks are not subject to regulation as firearm devices under the Gun Control Act or the National Firearms Act. (Id. ).

Notwithstanding Slide Fire's alleged statement that bump stocks are intended for use by disabled persons, Plaintiffs state that Slide Fire took no action to limit its marketing to such a class of customer. (Id. ¶¶ 21, 26). Plaintiffs continue that "Slide Fire's own marketing materials and advertisements belie any notion that bump stock devices are intended for use of persons with limited mobility." (See id. ¶ 22). For example, Slide Fire's promotional catalogue states, "[r]apid fire capabilities can add fun to your shooting sessions, and can really take your rifle to the next level." (Id. ).

Plaintiffs also point to statements made by Slide Fire's inventor, Jeremiah Cottle ("Cottle"), which suggest that bump stocks are intended for consumers who seek a firearm that mimics a fully automatic weapon. (Id. ¶ 64); (see also id. ¶ 65) (quoting Cottle discussing how bump stocks are geared toward "people like me, [who] love full auto."). Cottle allegedly made public comments promoting bump stocks as providing the "full auto experience but without the prohibitive price tag." (Id. ¶ 66).

Similarly, Plaintiffs allege that Slide Fire's various bump stock patents are silent as to the purported benefits for persons with limited mobility in their hands. (Id. ¶ 24). Instead, the patents identify bump stocks' "primary advantages" as "increas[ing] the ‘enjoyment and excitement’ of shooting firearms" and "enhanc[ing] the firing rate of a semi-automatic weapon." (Id. ¶ 25).

Plaintiffs contend that Slide Fire promoted and sold bump stocks "to the general public, without any reasonable measures or safeguards," and despite "indicia that it would be used, with firearms and ammunition, for unlawful purposes." (Id. ¶¶ 2–3). By marketing bump stocks as a "military-grade accessory for civilians," and not limiting such promotion to persons with disabilities, Slide Fire's acts and omissions, according to Plaintiff, foreseeably caused the carnage that took place at the Route 91 Festival. (Id. ¶¶ 2–3, 68–69).

Plaintiffs initially filed their class action complaint in state court on October 6, 2017; and Slide Fire subsequently removed the case to this Court. (See Pet. for Removal, ECF No. 1). On September 17, 2018, the Court granted Slide Fire's motion to dismiss without prejudice, giving Plaintiffs leave to file an amended complaint.

Plaintiffs filed their Amended Complaint on October 8, 2018, bringing the following claims against Slide Fire: (1) negligence; (2) negligence per se; (3) negligent infliction of emotional distress under a theory of bystander liability; (4) negligent infliction of emotional distress under a theory of direct liability; (5) negligent entrustment; (6) negligent products liability; (7) strict products liability; (8) public nuisance; (9) private nuisance; (10) false advertising in violation of § 43(a) of the Lanham Act; and (11) deceptive trade practices under Nevada Revised Statute ("NRS") 598.0915. (Am. Compl. ¶¶ 121–266).

Slide Fire now moves to dismiss each of Plaintiffs' claims in that Amended Complaint. (See Def.'s Mot. to Dismiss ("MTD"), ECF No. 34).

II. LEGAL STANDARD

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. 1990). "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' Amended Complaint on the following grounds: (1) Plaintiffs' common-law claims are barred by the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901 – 7903 ("PLCAA"); (2) the amended allegations fail to plausibly demonstrate how an exception to the PLCAA applies, warranting dismissal of all claims; and (3) even if the PLCAA is not a bar to this action, Plaintiffs' claims are not cognizable under Nevada law. (MTD at 9–24, ECF No. 34).

A. Scope of Amendment

As a preliminary matter, Slide Fire contends that the Court granted Plaintiffs leave to amend their complaint for the limited purpose of pleading additional facts to support an exception to the PLCAA. (Id. at 8). By incorporating five "unrelated new causes of action," and not pleading additional facts to support an exception to the PLCAA, Slide Fire claims that Plaintiffs have exceeded the scope of the Court's Order. (Id. ). The Court disagrees.

First, Slide Fire's argument is factually misplaced. Plaintiffs' Amended Complaint does include new facts to establish an exception to the PLCAA. (See Am. Compl. ¶¶ 93–102). Also, the new claims are not "unrelated" as Slide Fire argues; they are premised upon the same acts and omissions alleged in the...