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JOHNSON v. ARMS

February 3, 2004.

JAQUIONE JOHNSON, Plaintiff, -against- BRYCO ARMS, et al., Defendants


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge Page 2

MEMORANDUM JUDGMENT & ORDER

[EDITORS' NOTE: THIS PAGE CONTAINED "TABLE OF CONTENTS"] Page 3

  I. Introduction

  While working at a Wendy's restaurant in Flushing, New York in May 2001, eighteen-year-old Jaquione Johnson was shot in the head in the course of an attempted robbery. The weapon used was an illegally acquired semi-automatic pistol,

  The two perpetrators ordered Wendy's employees to go down to the basement. There they were lined up, their heads covered with plastic bags, and, one by one, they were shot in the head. Five were killed. Johnson and one other were severely injured. The incident acquired the appellation "The Wendy's Massacre."

  Johnson sues the gun's manufacturer (Bryco Arms), the wholesaler (B.L. Jennings), the distributor (Acusport Corp.), and the retailer (Atlantic Gun & Tackle, Inc.). Causes of action for public nuisance, negligence, design defect, breach of warranty, and strict liability are claimed.

  Atlantic Gun & Tackle moves to dismiss for failure to state a claim upon which relief can be granted and for lack of personal jurisdiction. Acusport moves to dismiss for failure to state a claim upon which relief can be granted. Bryco Arms and B.L. Jennings have filed a suggestion of bankruptcy automatically staying these proceedings as to them. See 11 U.S.C. § 362(a).

  For the reasons set out below the motion to dismiss the products liability claims is granted. Discovery will proceed on the public nuisance and negligence claims and on the issue of personal jurisdiction.

  Normally an examination of evidence is not useful in deciding a motion to dismiss. Courts limit themselves to considering the legal bases for the causes of action alleged and assume the plaintiffs version of facts to be true, hi evaluating the legal sufficiency of this plaintiffs claims, however, it is desirable to briefly review Bureau of Alcohol, Tobacco, Firearms and Page 4 Explosives ("ATF") crime-gun trace data and the marketing practices of the gun industry. Preliminary examination of this material is prudent in light of recent cases interpreting New York law as requiring specific factual backgrounds in order to state a cause of action for public nuisance and negligence against the firearms industry. See Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 96 N.Y.2d 222, 233-39 (N.Y. 2001) (requiring a "tangible showing" of certain facts in order to impose a duty on members of the firearms industry to exercise reasonable care in the marketing and distribution of their handguns); People v. Sturm, Ruger & Co., Index No. 402586/00, at 26-27 (N.Y. Sup, Ct. Aug. 10, 2001) (specifically noting facts which, if alleged, might be sufficient to state a cause of action for public nuisance against members of the firearms industry), aff'd, 761 N.Y.S.2d 192 (N.Y. A.D. 2003), leave to appeal denied. 100 N.Y.2d 514(2003).

  II. Factual Allegations

  Plaintiff was shot with a .380 caliber semiautomatic pistol by one of the robbers, John Taylor or Craig Godineaux. The gun allegedly was acquired by Taylor or Godineaux following a trail of possession during which the weapon repeatedly changed hands, both legally and illegally. It is contended that the firearm was (1) manufactured by Bryco Arms in California; (2) sold to B.L. Jennings in Nevada; (3) sold to Acusport in Ohio; (4) sold to Atlantic Gun & Tackle in Ohio; (5) sold to Angela Freeman, a resident of Ohio, with the retailer's knowledge that she was purchasing it on behalf of Bernard Gardier because he could not legally purchase it himself; (6) illegally transported by Gardier and one Jamal Gales to New York City, and there illegally sold by them to an unknown individual; and (7) sold twice more before coming into the possession of Taylor or Godineaux. Page 5

  Plaintiff alleges that defendants' sales and distribution practices created, contributed to and maintained the illegal secondary gun market through which this handgun moved until it did its deadly work. This underground market, it is contended, depended upon defendants' irresponsible business practices, such as multiple firearms sales and straw purchases. It is argued that defendants knew or should have known that their guns were being sold on the underground market and repeatedly used in the commission of crimes, but, because they gained significant revenue from illegal firearms sales, they failed to adopt basic policies and practices that would greatly decrease the number of guns reaching criminals; and that the defendants created and contributed to this illegal secondary market despite the knowledge that it was reasonably foreseeable that individuals like the plaintiff and the public at large would be harmed. Plaintiffs conclusions rest, in part, upon ATF data indicating that a high proportion of guns distributed by Acusport and subsequently sold by Atlantic Gun & Tackle have been traced to crimes. The gun in question, it is alleged, was sold by Acusport to Atlantic Gun & Tackle, which in turn sold it to a straw purchaser, and was ultimately used to severely injure the plaintiff. Defendants' conduct, the plaintiff concludes, caused his injuries — the kind of harm reasonably foreseeable from these gun companies' delicts.

  III. Law

 A. Motion to Dismiss

  1. Statement of a Claim

  a. Standard and Scope of Review

  Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss for "failure to state a claim upon which relief may be granted." Defendant has the burden of Page 6 proving "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).

  In reviewing a Rule 12(b)(6) motion, the task of the court "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). A court must accept the plaintiffs factual allegations as true, drawing all reasonable inference in plaintiffs favor. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). Materials de hors the complaint are generally not considered on a motion to dismiss unless the court treats it as one for summary judgment, giving all the parties a reasonable opportunity to present relevant evidence under Rule 56. See Fed.R.Civ.P. 12(b)(6); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason-requiring notice so that the party against whom the motion to dismiss is made may respond-that Rule 12(b)(6) motions are ordinarily converted into summary judgement motions."); see also Festa v. Local 3 Int'l Bhd. Of Elec. Workers. 905 F.2d 35, 38 (2d Cir. 1990) (court's consideration of affidavits filed with motion to dismiss was improper without converting motion to one for summary judgment). The purpose of this practice is to give the non-moving party proper notice, avoiding prejudice,
b. Claims
  1. Public Nuisance Page 7

  A public nuisance under New York law exists when there is a substantial interference with a public right. See Copart Indus., Inc. v. Consol. Edison Co. of New York. 362 N.E.2d 968, 41 N.Y.2d 564, 569 (N.Y. 1977). In order for a private party to establish a defendant's liability for this tort, a plaintiff must allege: (1) the existence of a public nuisance; (2) conduct or omissions by a defendant that create, contribute to, or maintain that public nuisance; and (3) particular harm suffered by plaintiff different in kind from that suffered by the community at large. National Association for the Advancement of Colored People v. Acusport. Inc., 271 F. Supp.2d 435, 482 (E.D.N.Y. 2003) ("NAACP").

  Under New York law, a claim for public nuisance may lie against members of the gun industry whose marketing and sales practice lead to the diversion of large numbers of firearms into the illegal secondary gun market. See id. at 449-51. In NAACP extensive discovery and detailed expert testimony demonstrated that gun manufacturers, importers and distributors were responsible for the creation of a public nuisance and that they could, voluntarily and through easily implemented changes, substantially reduce the harm occasioned by the illegal possession and use of handguns. Id. at 446; cf. People v. Sturm. Ruger & Co., Index No. 402586/00, at 26-27 (N.Y.Sup.Ct. Aug. 10, 2001) (dismissing public nuisance claim before answers were filed or discovery was taken, but specifically noting facts which, if alleged, might be sufficient to state a cause of action), aff'd. 761 N.Y.S.2d 192 (N.Y. App. Div. 2003), leave to appeal denied, 100 N.Y.2d 514 (2003). For other federal and state cases approving public nuisance claims against members of the firearms industry, see e.g., Ileto v. Glock, 349 F.3d 1191 (9th Cir. 2003); White v. Smith & Wesson Corp., 97 F. Supp.2d 816 (N.D. Ohio 2000); Chicago v. Beretta U.S.A. Corp., 785 N.E.2d 16 (Ill.App. Ct. 2003); Young v. Bryco Arms, 765 N.E.2d 1 (Ill.App. Ct. Page 8 2001); Gary v. Smith & Wesson. Corp., 2003 WL 23010035 (Ind. Dec. 23, 2003); Boston v. Smith & Wesson Corp., 2000 WL 1473568 (Mass. Super. Ct. July 13, 2000); James v. Arms Tech. Inc., 820 A.2d 27 (N.J. Super. Ct. App. Div. 2003); Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002).

  A. Causation

  Persons who join or participate in the creation or maintenance of a public nuisance are liable jointly and severally for the wrong and resulting injury. Simmons v. Everson. 26 N.E. 911, 124 N.Y. 319 (N.Y. 1891); Irvine v. Wood. 51 N.Y. 224 (N.Y. 1872); 81 N.Y. Jur.2d, Nuisances, § 59. Nuisance damages are capable of apportionment among multiple tortfeasors where a reasonable basis can be found for dividing the harm on the basis of the extent of the contribution of each party. Restatement (Second) of Torts, § 840 E cmt. b.

  "[C]reation of a public nuisance in the aggregate arises where it is difficult or impossible to separate the injury done by one contributing actor from that done by another and where the injury imposed by each contributing actor individually does not constitute a substantial interference with a public right." NAACP. 271 F. Supp.2d at 493. "In a public nuisance claim brought by a private plaintiff seeking damages, causation — that a defendant created, contributed to or maintained the alleged public nuisance — cannot be based on conduct creating only in the aggregate a public nuisance." Johnson v. Beemiller, 2003 WL 21697025, *1 (E.D.N.Y. July 21, 2003) (citing Chipman v. Palmer. 77 N.Y. 51, 54-57 (N.Y. 1879); Restatement (Second) of Torts, § 840E); see also NAACP. 271 F. Supp.2d at 493.

  In Johnson v. Beemiller. this court dismissed a case brought against various firearms manufacturers and distributors because causation was predicated on conduct creating a public Page 9 nuisance only in the aggregate. 2003 WL 21697025 (E.D.N.Y. July 21, 2003). Since the gun used in the Beemiller shooting was never recovered, plaintiff sued those companies responsible for manufacturing or distributing .380 caliber semi-automatic pistols, the same type of gun used to shoot and kill the victim. See Complaint, Johnson v. Beemiller. 2003 WL 21697025 (E.D.N.Y. July 21, 2003) (No. 03-0066). In contrast, private plaintiffs claiming a public nuisance have been permitted to seek damages when it has been possible to identify the source or sources of the particular firearm that caused special harm to the plaintiff. See Ileto v. Glock. 349 F.3d 1191, 1216 (9th Cir. 2003) (approving public nuisance claim against manufacturers and distributors of guns used during shooting but dismissing claim as to those defendants whose guns were part of the ...


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