Soto et al v. Bushmaster Firearms International, LLC et al

Filing 59

RULING re 54 Order on Motion to Remand to State Court. Please see attached for details. Signed by Judge Robert N. Chatigny on 10/9/15. (Samuels, J) (Additional attachment(s) added on 10/13/2015: # 1 REPLACEMENT PDF) (Glynn, T.).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DONNA L. SOTO, ET AL.,
Plaintiffs,
v.
BUSHMASTER FIREARMS
INTERNATIONAL, LLC., ET AL.,
Defendants.

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Case No. 3:15-cv-68 (RNC)

MEMORANDUM
This is an action for damages and injunctive relief arising
from the mass shooting at Sandy Hook Elementary School in
Newtown, Connecticut, in which twenty children and six adults
were killed by a shooter using a Bushmaster AR-15 rifle.

The

case is brought by or on behalf of victims of the shooting.

The

defendants are a number of entities and one individual involved
in the manufacture, distribution and sale of the rifle.
was filed in Connecticut Superior Court initially.

The case

In response

to the state court complaint, two of the defendants removed the
case to this Court invoking federal jurisdiction on the basis of
diversity of citizenship.1

The issue addressed in this

memorandum is whether the case must be remanded to state court
because federal jurisdiction is lacking.

For reasons that

follow, I conclude that remand is required.

1

The other defendants consented to removal.
Consents (ECF Nos. 1-2, 1-3).
1

See Removal

Defendants contend that this Court has jurisdiction based on
the diversity of citizenship statute, 28 U.S.C. § 1332(a)(1),
which confers on district courts "original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different states."

For diversity jurisdiction

to exist, there must be complete diversity between the plaintiffs
and the defendants, in other words, no plaintiff can be a citizen
of the same state as any of the defendants.

See Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).

In

this case, all the plaintiffs are citizens of Connecticut;2 and
one of the defendants, Riverview Sales, Inc. ("Riverview"), is
also a Connecticut citizen.3

Defendants claim that the presence

of Riverview may be disregarded for purposes of diversity
jurisdiction because Riverview has been fraudulently joined as a
defendant.4
2

The Soto, Hockley, Sherlach, Pozner, Rousseau, Wheeler,
Lewis, Barden and D'Avino plaintiffs are estates created under
Connecticut probate law. The remaining individual plaintiff Natalie Hammond - is a citizen of Connecticut. See Notice of
Removal (ECF No. 1) ¶ 11.
3

The manufacturer defendants (Remington Outdoor Company
Inc. and Remington Arms Company, LLC) are citizens of Delaware
and North Carolina. The distributor defendants (Camfour, Inc.
and Camfour Holding, Inc.) are citizens of Massachusetts. Of the
remaining defendants, David LaGuercia and Riverview Sales, Inc.,
Mr. LaGuercia is a citizen of Massachusetts, and Riverview is a
citizen of Connecticut.
4

When removal of a case from state to federal court is
based on federal diversity jurisdiction, the complete diversity
2

Plaintiffs have moved to remand the case on the ground that
defendants cannot sustain their heavy burden of establishing
fraudulent joinder.

The defendants do bear the burden of

establishing that federal jurisdiction exists, and the burden is
a heavy one.

See Briarpatch Ltd., L.P. v. Phoenix Pictures,

Inc., 373 F.3d 296, 302 (2d Cir. 2004).

To establish fraudulent

joinder, the defendants "must demonstrate, by clear and
convincing evidence, either that there has been outright fraud
committed in the plaintiff's pleadings, or that there is no
possibility, based on the pleadings, that [the] plaintiff[s] can
state a cause of action against the non-diverse defendant in
state court."

Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459,

460-61 (2d Cir. 1998).
remand.

Any doubts must be resolved in favor of

See Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213

(2d Cir. 2013).
Defendants do not claim that plaintiffs have engaged in
outright fraud by joining a non-diverse defendant having no real
connection to the case.

Indeed, Riverview is alleged to have

sold the rifle used in the shooting.

They claim, rather, that

there is no legal basis for plaintiffs' claims against Riverview
because the Protection of Lawful Commerce in Arms Act (“PLCAA”),
requirement applies just as it would if the case were filed in
federal court originally. In addition, under the federal statute
governing removal, a diversity case is not removable "if any of
the parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought." 28
U.S.C. § 1441(b).
3

15 U.S.C. §§ 7901, et seq., provides Riverview with immunity from
this suit.

The record establishes that the immunity provided by

this statute will also be asserted with regard to the claims
against the non-diverse defendants.5
The "no possibility" standard used to assess claims of
fraudulent joinder aims to identify cases in which it is
objectively reasonable for the court to conclude that the
plaintiff has improperly sued a non-diverse defendant in order to
deprive the other defendants of their right to a federal forum
under the removal statute.

Said differently, fraudulent joinder

exists when it is objectively reasonable to infer that the
plaintiff has engaged in a form of litigation abuse.

See 14B

Wright, Miller & Cooper, Federal Practice & Procedure § 3723 (4th
ed.) (noting that fraudulent joinder doctrine tries to avoid
"reward[ing] abusive pleading by plaintiffs").

If there is no

possibility a plaintiff can state a cause of action against a
non-diverse defendant, then it is objectively reasonable to infer
that the plaintiff is guilty of a form of cheating, and remand is
5

Plaintiffs contend that the removing defendants should
not be permitted to assert fraudulent joinder on the basis of a
defense that applies to all the defendants. Plaintiffs invoke
the common defense rule derived from Chesapeake & Ohio Ry. Co. v
Cockrell, 232 U.S. 146 (1914). The rule has not been adopted by
the Second Circuit but plaintiffs urge it should be followed
here. Under this rule, removal is impermissible when the claim
of fraudulent joinder rests on a common defense that equally
disposes of the claims against all the defendants, diverse and
non-diverse alike. See Smallwood v. Illinois Central RR Co., 385
F.3d 568 (5th Cir. 2004) (en banc); Boyer v. Snap-On Tools Corp.,
913 F.2d 108 (3d Cir. 1990).
4

an appropriate response to the plaintiff's improper conduct.

But

if the plaintiff's claim is not precluded as a matter of law - if
there is any possibility the plaintiff can state a claim against
the non-diverse defendant - an inference that the plaintiff is
guilty of improper conduct is unwarranted, and adjudicating the
case in federal court would violate the plaintiff's right to
choose the forum for the litigation.
Viewed in light of this purpose, the "no possibility"
standard for fraudulent joinder is similar to the Rule 11
standard for identifying instances of litigation abuse for which
sanctions should be imposed.

Rule 11 seeks to deter frivolous

litigation without chilling creative advocacy.

See Fed. R. Civ.

P. 11 advisory committee's note to 1993 amendment.

Thus, the

Rule provides that arguments for extensions, modifications, or
reversals of existing law or for creation of new law are not
sanctionable, provided they are not frivolous.

See id.

In

deciding whether a claim exceeds the limits of permissible
partisan advocacy, courts apply a standard of objective
reasonableness.

See ATSI Communications, Inc. v. Shaar Fund,

Ltd., 579 F.3d 143, 150 (2d Cir. 2009).

Because an "objectively

unreasonable" standard may have an inhibiting effect on vigorous
advocacy, to the detriment of the effective functioning of the
adversarial system, a safe harbor provision gives lawyers an
opportunity to withdraw a submission challenged by an adversary.

5

See In re Pennie & Edmonds LLP, 323 F.3d 86, 91 (2d Cir. 2003).
The analysis under both Rule 11 and fraudulent joinder
therefore turns not on how likely a claim is to succeed, but
rather on whether the claim is objectively frivolous.

See Davis

v. Prentiss Properties Ltd., Inc., 66 F. Supp. 2d 1112, 1115
(C.D. Cal. 1999) (concluding, based on Rule 11 standard, that "if
a diversity-defeating claim is not frivolous, the plaintiff has
the right to have it considered by the state court in which it
was filed").

Applying the "no possibility" standard with the

restraint characteristic of sanctions determinations ensures that
litigants do not withhold claims that could be brought in good
faith and in furtherance of the public interest in order to avoid
the risk of removal.
Accordingly, it is necessary to determine whether there is
any possibility the plaintiffs in this case can state a claim
against Riverview.

See Kenneson v. Johnson & Johnson, No. 3:14-

cv-01184(MPS), 2015 WL 1867768, at *6 (D. Conn. Apr. 23, 2015)
(holding that party was not fraudulently joined because claim
"appear[ed] to be possible under Connecticut law" and "ha[d] not
been foreclosed by controlling authority"); see also Retirement
Prog. for Employees of the Town of Fairfield v. NEPC, LLC, 642 F.
Supp. 2d 92, 97 (D. Conn. 2009)(holding that party was not
fraudulently joined because "[t]he applicability of [the
misrepresentation rules in § 522 of the Restatement (Second) of

6

Torts] in Connecticut is not clear.").

More specifically, the

question is whether the plaintiff's claims against Riverview are
plainly foreclosed by the PLCAA, as the defendants contend, or
are legally possible, as the plaintiffs argue.6
The PLCAA, enacted by Congress in 2005, provides immunity to
firearms manufacturers and dealers from any "qualified civil
liability action."

15 U.S.C. § 7902(b).7

exceptions when suit is permitted.8

The PLCAA provides six

Plaintiffs’ complaint

6

At various points in their papers, defendants contend
that they can establish fraudulent joinder because there is no
"reasonable basis" for the claims against Riverview. See Notice
of Removal (ECF No. 1), at 5. While courts in this Circuit have
applied varying formulations of the standard for fraudulent
joinder, see Oliva v. Bristol-Myers Squibb Co., No.
3:05CV00486(JCH), 2005 WL 3455121 (D. Conn. Dec. 16, 2005),
analysis of the cases shows that, in substance, the courts are
applying the "no possibility" standard set forth in Pampillonia,
see 138 F.3d at 461, which is the standard applied here.
7

The statute defines a qualified civil liability action
as: "[A] civil action or proceeding . . . brought by any person
against a manufacturer or seller of a [firearm distributed in
interstate or foreign commerce] . . . for damages, punitive
damages, injunctive or declaratory relief, abatement,
restitution, fines, or penalties, or other relief, resulting from
the criminal or unlawful misuse of a [firearm distributed in
interstate or foreign commerce] by the person or a third party."
15 U.S.C. § 7903(5)(A).
8

The six statutory exceptions are:

(i) an action brought against a transferor convicted under
section 924 (h) of title 18, or a comparable or identical
State felony law, by a party directly harmed by the conduct
of which the transferee is so convicted;
(ii) an action brought against a seller for negligent
entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a
7

against Riverview seeks to assert claims within the scope of the
exceptions for claims alleging negligent entrustment, 15 U.S.C. §
7903(5)(A)(ii), and claims alleging a knowing violation of a
state statute governing the sale and marketing of firearms, 15

qualified product knowingly violated a State or Federal
statute applicable to the sale or marketing of the product,
and the violation was a proximate cause of the harm for
which relief is sought, including—
(I) any case in which the manufacturer or seller
knowingly made any false entry in, or failed to make
appropriate entry in, any record required to be kept
under Federal or State law with respect to the
qualified product, or aided, abetted, or conspired with
any person in making any false or fictitious oral or
written statement with respect to any fact material to
the lawfulness of the sale or other disposition of a
qualified product; or
(II) any case in which the manufacturer or seller
aided, abetted, or conspired with any other person to
sell or otherwise dispose of a qualified product,
knowing, or having reasonable cause to believe, that
the actual buyer of the qualified product was
prohibited from possessing or receiving a firearm or
ammunition under subsection (g) or (n) of section 922
of title 18;
(iv) an action for breach of contract or warranty in
connection with the purchase of the product;
(v) an action for death, physical injuries or property
damage resulting directly from a defect in design or
manufacture of the product, when used as intended or in a
reasonably foreseeable manner, except that where the
discharge of the product was caused by a volitional act that
constituted a criminal offense, then such act shall be
considered the sole proximate cause of any resulting death,
personal injuries or property damage; or
(vi) an action or proceeding commenced by the Attorney
General to enforce the provisions of chapter 44 of title 18
or chapter 53 of title 26. 15 U.S.C. § 7903(5)(A).
8

U.S.C. § 7903(5)(A)(iii), commonly referred to as the "predicate
exception."
In contending that the plaintiffs’ claims against Riverview
are clearly baseless in light of the immunity provided by the
PLCAA, defendants ask this Court to determine that the word "use"
in the negligent entrustment exception means "discharge."

In

addition, they ask this Court to determine that the Connecticut
Unfair Trade Practices Act does not constitute a statute
governing the sale and marketing of firearms for purposes of the
predicate exception.

These are questions of first impression.9

9

Cases concerning the PLCAA fall into three groups.
First, there are cases that challenge its constitutionality. All
courts have held that the statute is valid under the Commerce
Clause and the separation-of-powers doctrine. See Ileto v. Glock
Inc., 565 F.3d 1126 (9th Cir. 2009); City of New York v. Beretta
U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008); Estate of Charlot v.
Bushmaster Firearms, Inc., 628 F. Supp. 2d 174 (D.D.C. 2009);
Estate of Kim v. Coxe, 295 P.3d 380 (Alaska 2013); Gilland v.
Sportsmen's Outpost, Inc., No. X04CV095032765S, 2011 WL 2479693
(Conn. Super. Ct. May 26, 2011); District of Columbia v. Beretta
U.S.A. Corp., 940 A.2d 163 (D.C. 2008). Second, there are cases
concerning its preemptive effect, specifically with regard to
claims under the D.C. Assault Weapons Manufacturing Strict
Liability Act ("SLA"). All courts have held that the statute
preempts SLA claims. See Estate of Charlot, 628 F. Supp. 2d at
174; Beretta, 940 A.2d at 163. Third, there are cases involving
issues of statutory interpretation focusing mainly on the
predicate exception. See Ileto, 565 F.3d at 1126; Berretta, 524
F.3d at 384; Jefferies v. District of Columbia, 916 F. Supp. 2d
42 (D.D.C. 2013); Bannerman v. Mountain State Pawn, Inc., No.
3:10-CV-46, 2010 WL 9103469 (N.D. W. Va. Nov. 5, 2010); Sambrano
v. Savage Arms, Inc., 338 P.3d 103 (N.M. Ct. App. 2014); Estate
of Kim, 295 P.3d at 380; Williams v. Beemiller, Inc., 100 A.D.3d
143 (N.Y. App. Div. 2012); Gilland, 2011 WL 2479693, at *1; Smith
9

Plaintiffs have presented reasoned arguments supporting their
position that the word "use" does not necessarily mean
"discharge" and that CUTPA does fit within the scope of the
predicate exception even though it does not expressly refer to
firearms.

Defendants respond that if the plaintiffs' arguments

were accepted, the immunity Congress intended to confer on
firearms dealers would be illusory.

Whatever persuasive force

might be accorded this argument on a motion to dismiss the
complaint against Riverview for failure to state a claim on which
relief can be granted, the question at this juncture is whether
the plaintiffs have any possibility of stating a claim.

See

Nemazee v. Premier, Inc., 232 F. Supp. 2d 172, 178 (S.D.N.Y.
2002) ("Any possibility of recovery, even if slim, militates
against a finding of fraudulent joinder; only where there is 'no
possibility' of recovery is such a finding warranted.").

That

plaintiffs may face an uphill battle in litigating their claims
does not resolve the question presented here: whether the claims
are clearly precluded as a matter of law.

See Moorehouse v.

Bayer Healthcare Pharm., Inc., No. 08-01831(SBA), 2008 WL
2477389, at *3 (N.D. Cal. June 18, 2011) ("Defendants contend
that no California case has ever held a distributor liable for
failure to warn in the prescription drug context.

However, even

& Wesson Corp. v. City of Gary, 875 N.E.2d 422 (Ind. Ct.
2007).
10

App.

if true, that fact alone does not suggest that it is obvious
according to the settled rules of California that a failure to
warn cause of action is not viable.").
After considering the parties' lengthy submissions, I am not
convinced that the plaintiffs fraudulently joined Riverview in
the state court action in an improper attempt to deprive the
other defendants of their right to a federal forum.

While the

immunity provided by the PLCAA could result in dismissal of the
claims against Riverview, neither the statute itself nor any
controlling case conclusively establishes that the plaintiffs
cannot state a cause of action against Riverview.

Under the "no

possibility" standard, therefore, defendants' submissions fall
short of establishing that Riverview has been fraudulently
joined.10
Defendants urge that they are entitled to have this Court
interpret and apply the PLCAA.

Under the well-pleaded complaint

rule, however, a federal defense does not provide a basis for
removal when complete diversity is lacking.

See 13D Wright,

Miller & Cooper, Federal Practice & Procedure § 3566 (3d ed.).
Because fraudulent joinder has not been established, this Court
does not have jurisdiction to delve into the merits of this
dispute.

Cf. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380-

10

Because defendants have failed to establish that there
is no possibility the plaintiffs can state a cause of action
against Riverview, I do not reach plaintiffs' argument based on
the common defense rule.
11

81 (11th Cir. 1998) ("In a fraudulent joinder inquiry, federal
courts are not to weigh the merits of a plaintiff's claim beyond
determining whether it is an arguable one under state law.”).
In the motion to remand, plaintiffs request an award of
costs and fees incurred as a result of the removal.

When a case

is remanded, fees should be awarded only if the removing party
did not have an objectively reasonable basis for removal.
v. Franklin Capital Corp., 546 U.S. 132, 136 (2005).

Martin

Given the

lack of controlling authority regarding removal based on PLCAA
immunity, plaintiffs' request for costs and fees is denied.
Accordingly, the case will be remanded.

___________/s/ RNC_________________
Robert N. Chatigny
United States District Judge

12