Smith v. Ammunition, Case No. 2:13-CV-2223 JCM (NJK)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
PartiesANDREW SMITH, Plaintiff(s), v. WOLF PERFORMANCE AMMUNITION, et al., Defendant(s).
Docket NumberCase No. 2:13-CV-2223 JCM (NJK)
Decision Date18 May 2015

ANDREW SMITH, Plaintiff(s),

Case No. 2:13-CV-2223 JCM (NJK)


May 18, 2015


Presently before the court is defendant Sporting Supplies International, Inc.'s ("Sporting") motion for summary judgment. (Docs. ## 48, 49).1 Plaintiff Andrew Smith filed a response (doc. # 50), and Sporting filed a reply (doc. # 54).

Also before the court is third-party plaintiff Tulammo USA, Inc.'s ("Tulammo") motion to dismiss third-party complaint. (Doc. # 51). Sporting filed a response (doc. # 55), and Tulammo filed a reply (doc. # 56).

Finally before the court is Sporting's motion for default judgment. (Docs. ## 69, 70).2 Defendant Tula Cartridge Works ("Tula") filed a response. (Doc. # 79). Sporting did not file a reply and the deadline to do so has passed.

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I. Background

A. Plaintiff's complaint

Plaintiff Andrew Smith filed his complaint in the Eighth Judicial District Court in Clark County, Nevada on October 31, 2014. (Doc. # 1-2 at 6). Plaintiff's complaint alleges claims arising from a firearm-related accident and injuries plaintiff allegedly sustained. (Id. at 7).

Plaintiff alleges that on or about April 7, 2012, he was in Sloan, Nevada using a Bushmaster firearm containing "Wolf brand ammunition.3 (Id.). Plaintiff alleges that his firearm exploded in his face, causing severe physical and emotional injuries. (Id.). Plaintiff brought claims against various defendants for (1) negligence/gross negligence; and (2) strict liability in tort.

Defendants are Wolf Performance Ammunition ("Wolf"), Sporting, SSI Manufacturing Technologies Corp. ("SSI"), Bushmaster Firearms ("Bushmaster I"), Bushmaster Firearms International, LLC ("Bushmaster II"), and Remington Arms Company, LLC ("Remington"). (Doc. # 1-2 at 5.) Sporting sells ammunition under the brand name of "Wolf Performance Ammunition." (Doc. # 1-3).4

Sporting removed the action to this court on December 5, 2013. (Doc. # 1). Sporting and Remington filed answers on December 11, 2013. (Docs. ## 1, 7, 9).

B. Defendant Sporting's third-party complaint

On July 17, 2014, Sporting filed a motion for leave to file a third-party complaint. (Doc. # 31). Sporting asserted that Tula Cartridge Works ("Tula") and Tulammo USA, Inc. ("Tulammo") may be liable to Sporting for contribution and indemnification. (Doc. # 31 at 5). Tula is a manufacturer of ammunition located in Tula, Russia. (Doc. # 51 at 2). Tulammo is an ammunition distributor. (Id.).

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The court granted Sporting's motion on August 8, 2014. (Doc. # 35). On August 12, 2014, Sporting filed a third-party complaint against Tula and Tulammo. (Doc. # 36).

The parties have filed various motions. The court will address each pending motion in turn.

II. Discussion

A. Sporting's motion for summary judgment as to all claims in plaintiff's complaint (docs. ## 48, 49)

As discussed previously, plaintiff alleges that, on April 7, 2012, while using a Bushmaster firearm and Wolf ammunition, his firearm exploded in his face. (Doc. # 1-2 at 7). Plaintiff alleges the explosion caused severe physical and emotional injuries. (Id.). Plaintiff brings claims against the above-named defendants for (1) negligence/gross negligence; and (2) strict liability in tort.

Defendant Sporting moves for summary judgment on all of plaintiff's claims. (Docs. ## 48, 49).

1. Legal Standard - Rule 56 summary judgment

The Federal Rules of Civil Procedure provide for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an

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essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T. W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

At summary judgment, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.

2. Discussion

Plaintiff and defendant both conflate the claims of negligence and strict liability in tort. Negligence and strict liability are not mutually exclusive because they differ in focus. Negligence focuses on the conduct of the manufacturer; strict liability focuses on the product and the

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consumer's expectation. See, e.g., Toner for Toner v. Lederle Labs., 828 F.2d 510, 512 (9th Cir. 1987) (citations omitted); see also Johnson v. John Deere Co., 935 F.2d 151, 154 (8th Cir. 1991) (in a strict liability failure to warn claim the focus is on the nature of the product, while in a negligent failure to warn claim the focus is on the defendant's conduct); Peters v. AstraZeneca LP, 224 F. App'x 503, 506 (7th Cir. 2007) (strict liability focuses on the defendants' product, while negligence focuses on the defendants' conduct); Smith v. Walter C. Best, Inc., 927 F.2d 736, 738 (3d Cir. 1990) (negligence focuses upon the duty of a cautious prudent manufacturer and strict liability analysis focuses instead on consumer expectations).

a) Negligence/gross negligence

Plaintiff's first claim for relief is for "Negligence/Gross Negligence." (Doc. # 1-2 at 7). Plaintiff alleges that each of the defendants were negligent in "designing, manufacturing, assembling, inspecting, distributing, and selling their products." (Doc. # 1-2 at 7).

To state a claim for negligence under Nevada law, a plaintiff must establish: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiff's injuries; and (4) plaintiff suffered damages. See Scialabba v. Brandise Constr. Co., 921 P.2d 928, 930 (Nev. 1996). "Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a prudent man." Hart v. Kline, 116 P.2d 672, 674 (Nev. 1941). "Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure." Id.

As discussed above, the focus of a negligence inquiry is on the conduct of the defendants. The court imposes liability when a product's manufacturer or seller has failed to use reasonable care to eliminate foreseeable dangers which subject a user to an unreasonable risk of harm. See Toner, 828 F.2d at 513. The plaintiff bears the burden of proof with respect to a negligence claim.

Here, plaintiff fails to set forth any evidence to support his claim that the firearm or the ammunition that he used were...

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