410 F.Supp.3d 1123
D. Nev.2019Background
- Oct. 1, 2017 Route 91 mass shooting: shooter used rifles equipped with "bump stocks," killing 58 and injuring hundreds. Plaintiffs are festival attendees and survivors.
- Defendant Slide Fire designed, manufactured, marketed, and sold bump stocks and promoted them as giving a "full auto" experience; Slide Fire also represented the device as having an "added benefit" for persons with limited hand mobility in communications with the ATF.
- Slide Fire obtained an ATF advisory letter (2010) concluding the bump-stock part was not regulated as a firearm component; Slide Fire displayed "ATF approved" and related material on its website.
- Plaintiffs filed an amended complaint asserting multiple claims (negligence, negligent products liability, negligent entrustment, negligence per se, strict products liability, public and private nuisance, Lanham Act false advertising, and NDTPA deceptive trade practices). Slide Fire moved to dismiss, invoking the PLCAA.
- Central legal issue: whether the Protection of Lawful Commerce in Arms Act (PLCAA) bars Plaintiffs’ common-law claims, and if not, whether any PLCAA exception (notably the predicate exception) applies given alleged marketing misrepresentations.
- Court disposition: Motion to dismiss DENIED in part and GRANTED in part — negligence claim survives; several claims dismissed with leave to amend; some claims dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PLCAA bars Plaintiffs’ common-law claims | PLCAA does not bar claims because exceptions apply (negligent entrustment, negligence per se, or the PLCAA predicate exception based on statutory violations) | PLCAA bars the suit because bump stocks are "qualified products" and no exception applies | PLCAA generally bars these suits, but Plaintiffs plausibly invoke the predicate exception based on state deceptive-marketing statute; thus some claims may proceed while others are barred or dismissed |
| Whether Nevada Deceptive Trade Practices Act (NRS 598.0915) can serve as a PLCAA predicate statute | Slide Fire knowingly misled the public ("ATF approved", lawfulness, no background checks), so NDTPA is a predicate statute and proximately caused the shooter to obtain bump stocks | NDTPA is too general (not firearm-specific) and cannot serve as a predicate; also causation is lacking | Court: NDTPA may serve as a predicate statute; Plaintiffs plausibly allege Slide Fire knowingly misrepresented ATF approval and that those misrepresentations proximately contributed to harm (sufficient to invoke predicate exception at motion-to-dismiss stage) |
| Whether Slide Fire’s 2010 ATF communications violated 18 U.S.C. § 1001 and can be a predicate statute | Slide Fire made material false statements to ATF (misstating purpose) so §1001 liability creates a predicate violation | §1001 is too general and not a statute "applicable to the sale or marketing" of firearms under PLCAA; Plaintiffs did not plead falsity of Slide Fire's statement in the ATF letter | Court: Plaintiffs failed to plausibly allege a §1001 violation and §1001 is not an appropriate PLCAA predicate statute under Ileto guidance |
| Negligent entrustment and negligence per se as PLCAA exceptions | Entrustment can be shown indirectly; violation of implied warranty and NDTPA supports negligence per se | No direct sale/entrustment to shooter; cited statutes are not specific to the harms alleged and don't support negligence per se | Court: Negligent entrustment dismissed (no plausibly pleaded entrustment); negligence per se dismissed as pleaded (statutes lack requisite specificity) |
| Negligence (duty, breach, causation) | Slide Fire marketed bump stocks broadly and promoted their rapid-fire capability, creating a foreseeable risk that criminals would misuse them; Slide Fire had a duty to market/sell safely | Lack of special relationship and intervening criminal act (shooter) breaks causation; ATF determination shows no breach | Court: Duty and foreseeability plausibly alleged given marketing; breach and proximate causation survive at this stage — negligence claim allowed to proceed |
| Other claims (NIED, strict product liability, nuisance, Lanham Act, NDTPA standing) | Various theories seek recovery for emotional and commercial harms from sale/marketing | Many theories are not cognizable under Nevada law or are insufficiently pleaded; some injuries too attenuated or statutes lack standing | Court: Direct NIED and public nuisance dismissed with prejudice; negligent bystander NIED, strict products liability, negligent products liability, Lanham Act false advertising, NDTPA consumer claim, and private nuisance dismissed without prejudice (leave to amend where appropriate); some standing/causation defects identified |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state plausible claim to survive Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard and inference of liability)
- Ileto v. Glock, Inc., 565 F.3d 1126 (9th Cir. 2009) (PLCAA scope and what statutes may qualify as predicates)
- Ileto v. Glock, Inc., 349 F.3d 1191 (9th Cir. 2003) (manufacturer marketing can create duty when it foreseeably fosters an illegal secondary market)
- Broughman v. Carver, 624 F.3d 670 (4th Cir. 2010) (definition of "manufacturer" under federal firearms laws includes entities that alter or assemble firearms)
- Dakis v. Scheffer, 898 P.2d 116 (Nev. 1995) (foreseeability as predicate to duty)
- Bower v. Harrah's Laughlin, Inc., 215 P.3d 709 (Nev. 2009) (no special relationship required where negligent conduct foreseeably enables third-party crime)
- Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276 (Nev. 2009) (elements of negligence under Nevada law)