Daniel v. Armslist LLC et al

Filing 35

ORDER signed by Judge Rudolph T. Randa on 2/17/2016 GRANTING 19 Plaintiff's Motion to Remand to State Court. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
YASMEEN DANIEL, individually,
and as Special Administrator of
the ESTATE OF ZINA DANIEL
HAUGHTON,
Plaintiffs,
-vs-

Case No. 15-C-1387

ARMSLIST, LLC,
BRIAN MANCINI,
BROC ELMORE,
JONATHAN GIBBON,
DEVIN LINN,
ABC INS. CO., DEF INS. CO.,
ESTATE OF RADCLIFFE HAUGHTON,
Defendants.
DECISION AND ORDER
This action arises from the October 21, 2012, mass shooting at the
Azana Spa and Salon in Brookfield, Wisconsin. On that date, Radcliffe
Haughton killed his wife, Zina Daniel Haughton, two of his wife’s coworkers, and himself, wounding four others. Haughton bought the murder
weapon through Armslist.com, an online marketplace for the sale and
purchase of firearms, even though he was not allowed to possess a firearm
pursuant to a domestic violence restraining order.
Yasmeen Daniel, Zina’s adult daughter from a previous marriage,

was at the spa and witnessed the carnage. Daniel brought suit in
Milwaukee County Circuit Court against Armslist and its owners, Brian
Mancini, Broc Elmore, and Jonathan Gibbon. Daniel also sued Devin Linn,
a Wisconsin resident that sold the murder weapon to her stepfather, and
her stepfather’s estate. Daniel alleges, as relevant here, that Armslist
aided and abetted the unlawful sale and possession of a firearm in
violation of state and federal law. The Armslist defendants removed from
state court, and Daniel now moves to remand. This motion is granted.
BACKGROUND
The following facts are taken from the complaint and accepted as
true for purposes of this motion.
On October 3, 2012, Radcliffe Haughton assaulted Zina Daniel
Haughton in their home. In response to a 911 call, police from the Brown
Deer Police Department arrived and escorted Zina to a local Holiday Inn to
protect her from further violence. The following day, Brown Deer police
took Zina back to her home to retrieve some personal items, after which
she drove to work at Azana.
That same day, Radcliffe appeared in Azana’s parking lot with a
knife and confronted Zina, who took shelter in the salon. Left in the
parking lot, Radcliffe slashed the tires of Zina’s car. Later that day, Brown
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Deer police arrested Radcliffe for domestic violence, criminal damage to
property, and disorderly conduct.
The next day, Zina signed a 72-hour contact prohibition against
Radcliffe, requiring him to avoid contacting her other than through a law
enforcement officer or an attorney. On October 8, Zina filed a petition for a
restraining order in Milwaukee County. The court issued a temporary
restraining order while the matter was pending. On October 18, Radcliffe
and Zina attended a hearing to adjudicate the petition. Zina told the court
that Radcliffe’s threats terrorized her “every waking moment.” Brown Deer
police officers also testified in favor of Zina. The court granted Zina’s
petition and prohibited Radcliffe from approaching his wife for four years,
the maximum allowed under Wisconsin law. The court also prohibited
Radcliffe from possessing a firearm until October 18, 2016, finding “clear
and convincing evidence” that he might use a firearm to harm Zina and
endanger public safety.
Federally licensed firearms dealers are required to conduct
background checks on gun buyers to prevent sales to individuals prohibited
from possessing firearms. In enacting this requirement, Congress
recognized and sought to address the inherent danger to the public posed
by certain individuals possessing firearms. Unlicensed private sellers, who
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are not engaged in the business of selling firearms, are not required to
conduct background checks under federal law.
Private sales over the internet are frequently linked to illegal gun
trafficking, sales to minors, and mass shootings, such as those that took
place at Virginia Tech, a Navy recruiting center in Chattanooga,
Tennessee, and Northern Illinois University. As a result, many websites
have prohibited private gun sales, including ebay, Craigslist, Amazon.com,
and Google AdWords.
In the marketplace created by Armslist, any putative buyer can post
a description of the firearm they wish to purchase and any seller can post a
description of the firearm they wish to sell. Armslist’s customers contact
one another through Armslist’s server by clicking on a link in their website
or using their counterparty’s contact information. Armslist receives
revenue through advertising, so the more gun transactions that occur, the
more money Armslist makes.
Several of the most significant design features of Armslist.com assist
prohibited purchasers in evading federal and state laws while acquiring
firearms. For example, Armslist provides the data fields which its
customers fill out when they create “want to buy” or “for sale” posting. For
sellers, one of the most prominent data fields is whether a seller is a
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“premium vendor” (that is, a purportedly licensed gun dealer) or a “private
seller.” Similarly, for a purchaser posting a “want to buy” advertisement,
Armslist offers a “seller” data field for them to specifically identify whether
they would prefer to purchase from a private party as opposed to a licensed
dealer. Armslist also has a search function that allows buyers to search for
only private sellers. Armslist does allow users to flag advertisements for
review and policing, but expressly prevents users from flagging content as
criminal and illegal. Users are not required to register an account, thereby
encouraging anonymity, and Armslist prominently displays on each
advertisement whether the account is registered or unregistered.
Radcliffe Haughton’s search for firearms took place exclusively on
Armslist.com and made use of the search function to exclude licensed
dealers. On October 19, 2012, Haughton found an Armslist.com offer of sale
posted by Linn for a used FNP-40 semiautomatic handgun with three highcapacity magazines of ammunition. The advertised cost was $500, more
than it would normally cost for a legitimate buyer. Haughton emailed Linn
using the contact function. On October 20, the day before the shooting,
Haughton bought the gun from Linn in a McDonald’s parking lot in
Germantown, Wisconsin.

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ANALYSIS
Courts interpret removal statutes narrowly with the implicit
understanding that a plaintiff is free to choose his forum. Kenosha Unified
Sch. Dist. v. Stifel Nicolaus & Co., Inc., 607 F. Supp. 2d 967, 973 (E.D. Wis.
2009). Doubts regarding subject matter jurisdiction are resolved in favor of
remand. Id. (citing Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.
1993)).
The Armslist defendants invoke federal question jurisdiction. 28
U.S.C. § 1331. A case arises under federal law in two ways. Evergreen
Square of Cudahy v. Wis. Housing & Econ. Dev’t Auth., 776 F.3d 463, 465
(7th Cir. 2015) (citing Gunn v. Minton, --- U.S. ---, 133 S. Ct. 1059, 1064
(2013)). “Most directly, a case arises under federal law when federal law
creates the cause of action asserted.” Id. This “accounts for the vast bulk of
suits that arise under federal law.” Id. But where “a claim finds its origins
in state rather than federal law,” the Supreme Court has “identified a
special and small category of cases in which arising under jurisdiction still
lies.” Id. at 465-66. In this category, courts ask whether the “state-law
claim necessarily raise[s] a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any
congressionally

approved

balance
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of

federal

and

state

judicial

responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,
545 U.S. 308, 314 (2005). This inquiry “rarely results in a finding of federal
jurisdiction,” but “rarely” differs from “never.” Evergreen Square, 776 F.3d
at 466 (citing Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA Ins. Corp.,
756 F.3d 1032, 1033 (7th Cir. 2014)).
Daniel brings eleven claims: (1) negligence; (2) negligence per se; (3)
negligent entrustment; (4) negligent infliction of emotional distress; (5)
civil conspiracy; (6) aiding and abetting tortious conduct; (7) public
nuisance; (8) wrongful death; (9) piercing the corporate veil; (10) assault;
and (11) battery. These are state law causes of action.
Even so, Armslist argues that Count VI arises under federal law
because it alleges a violation of federal criminal statutes: the aiding and
abetting statute, 18 U.S.C. § 2, and 18 U.S.C. § 922(d), which makes it
unlawful to sell a firearm to certain persons, including one (such as
Radcliffe Haughton) who is subject to a domestic violence restraining order.
Neither statute creates a federal civil cause of action. See, e.g., Alcante v.
HRB Tax Group, Inc., No. 11-cv-125, 2011 WL 2729191, at *1 (N.D. Ind.
2011) (18 U.S.C. § 2 is a “criminal statute[] that do[es] not create private
rights of action”); Bannerman v. Mountain State Pawn, Inc., No. 10-cv-46,
2010 WL 9103469, at *7 (N.D.W.V. Nov. 5, 2010) (“the language, legislative
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history, and purpose of § 922 do not create a substantive federal right of
the plaintiff to recover damages”). Accordingly, Armslist must demonstrate
that Daniel’s claims “turn on substantial questions of federal law, and thus
justify resort to the experience, solicitude, and hope of uniformity that a
federal forum offers on federal issues.” Grable, 545 U.S. at 312.
In this respect, Armslist argues that Counts II and VI raise
substantial federal questions by seeking to impose liability for violating
federal criminal statutes. This argument wrongly presumes that Daniel
cannot prevail on these claims unless she proves a violation of federal law.
To the contrary, in Count II (negligence per se), Daniel alleges that the
Armslist Defendants and Linn “violated federal, state, and local statutes,
regulations, and ordinances, including without limitation by aiding and
abetting the unlawful possession of a firearm pursuant to 18 U.S.C. § 2 and
18 U.S.C. § 922(g),1 and endangering safety by use of a dangerous weapon
pursuant to Wis. Stat. § 941.20(1).” Complaint, ¶ 141 (emphases added).
Thus, Count II does not “necessarily raise a stated federal issue …” Grable,
545 U.S. at 314. Similarly, Count VI alleges that the Armslist defendants
aided and abetted (1) a § 922(d) violation, (2) the negligent entrustment of

§ 922(g) makes it illegal for certain persons to possess or transport firearms –
those persons to whom it is illegal to sell firearms under § 922(d).
1

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the murder weapon by Linn to Radcliffe Haughton, and (3) the negligent
and reckless operation of Armslist.com. Complaint, ¶¶ 172-74. The latter
two theories are creatures of state law, not disputed federal issues.
Armslist argues further that Count VI contains two separate claims,
one state and one federal, not alternative theories of liability. This is wrong
because Count VI is premised upon the same conduct: “acting in concert to
broker the transaction between a dangerous, prohibited purchaser,
Radcliffe Haughton, and Linn, shifting the responsibility of vetting
purchasers to Linn, whom the Armslist Defendants knew or should have
known would be unqualified to perform such vetting, and otherwise acting
recklessly and negligently.” Complaint, ¶¶ 172, 174. “A ‘claim for relief’
seeks redress of a distinct wrong; a distinct legal underpinning differs from
a new claim …” N.A.A.C.P. v. Am. Fam. Mut. Ins. Co., 978 F.2d 287, 291
(7th Cir. 1992); see also Broder v. Cablevisions Sys. Corp., 418 F.3d 187,
194 (2d Cir. 2005) (“One of the key characteristics of a mere ‘theory,’ as
opposed to a distinct claim, is that a plaintiff may obtain the relief he seeks
without prevailing on it”) (citing Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 810-13 (1988)).
Armslist also argues that Daniel is using federal aiding and abetting
law couched as a state tort claim in an effort to impose a background check
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requirement on private gun sales over the internet. Gun control is not
exclusively a federal issue, evidenced by the fact that ten states and the
District of Columbia already require background checks for private gun
sales.2 A ruling from a Wisconsin state court imposing liability in this case
will not impose a nationwide rule, and thus will not intrude on any federal
prerogative.3
Finally, Armslist cites the Communications Decency Act, 47 U.S.C.
§ 230, which creates a federal immunity to any cause of action that would
make internet service providers liable for information originating with a
third-party user of the service. See Zeran v. Am. Online, Inc., 129 F.3d 327,
330 (4th Cir. 1997). Armslist concedes that a federal defense does not
create federal question jurisdiction, but argues that the CDA is further
evidence of the important federal issues raised in this lawsuit. From there
it does not follow that this case arises under federal law, as discussed
herein.

Cal. Penal Code §§ 27545, 27850; Colo. Rev. Stat. § 18-12-112; Del. Code tit. 11,
§ 1448B; N.Y. Gen. Bus. Law § 898; Or. Rev. Stat. § 166.438; Was. Rev. Code § 9.41.113;
R.I. Gen. Laws §§ 11-47-35 to 11-47.35.2; Conn. Gen. Stat. §§ 29-33(c), 29-37a; D.C.
Code Ann. § 7-2505.02; Md. Code Ann., Pub. Safety §§ 5-117, 5-118, 5-121, 5-124; Pa.
Cons. Stat. § 6111.
2

Federal law does not impose a background check requirement for private online
sales, but President Obama recently announced his intention to issue an executive order
targeting online marketplaces such as Armslist.com.
http://www.npr.org/2016/01/06/462114352/obama-aims-to-expand-background-checks-toonline-gun-sales (accessed Feb. 12, 2016).
3

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NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT plaintiff’s motion to remand [ECF No. 19] is
GRANTED.
Dated at Milwaukee, Wisconsin, this 17th day of February, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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