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"]
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
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
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).
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.
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.
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
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,
1. Public Nuisance
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)
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.
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
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
"[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
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
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 ...