Opinion
No. X04 CV-09-5032765 S
May 26, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND/OR STRIKE (#118)
On March 7, 2011, the court heard oral argument concerning the defendants Sportsmen's Outpost, Inc.'s (Sportsmen's Outpost) and Michael Cortigliano, Jr.'s (Cortigliano) (collectively, defendants) motion to dismiss and/or strike the plaintiffs' second amended complaint (#114) (complaint). After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
As discussed below, in the complaint, the plaintiffs allege that, on August 23, 2007, Scott Magnano assaulted and abducted Jennifer Magnano and then shot and killed her with a Glock 21 handgun (Glock) and ammunition. The plaintiffs allege that the Glock and ammunition had been removed from Sportsmen's Outpost, a federally licensed firearms dealer, located in Wolcott, Connecticut, more than five weeks earlier, on July 15, 2007. See complaint, ¶¶ 21-22.
The plaintiffs in this matter are Richard Gilland, Jr., as administrator of the estate of Jennifer Magnano; Steven R. Dembo, as guardian for David Magnano and Emily Magnano (n/k/a Emily Thibeault), the minor children of Jennifer Magnano; and Jessica Rosenbeck, the adult child of Jennifer Magnano. The defendants are Sportsmen's Outpost and Cortigliano.
In the complaint, the plaintiffs base their claims against Sportsmen's Outpost and Cortigliano, respectively, on negligence (Counts One and Two); wrongful death (Counts Three and Four); negligence, seeking to recover for pain, suffering and emotional distress suffered by Jennifer Magnano in the interval between being attacked and her death (Counts Five and Six); negligent infliction of emotional distress (Counts Seven and Eight); bystander emotional distress (Counts Nine and Ten); and negligent and reckless entrustment (alleged against Sportsmen's Outpost only in Count Eleven). All of these counts stem from the same nucleus of alleged facts.
The plaintiffs allege that Sportsmen's Outpost was and is engaged in the business of selling firearms to the public and that it, "and its agents and employees were subject to the various state and federal laws regulating all aspects of the firearms industry, including, but not limited to the Federal Gun Control Act." See complaint, ¶¶ 7, 9.
The plaintiffs allege that Scott Magnano first went to Sportsmen's Outpost on July 13, 2007, and that, "[d]uring the ensuing police investigation into the theft," see complaint, paragraph 19, Cortigliano identified him as a "suspicious customer" who came to the store that day. See complaint, ¶¶ 16-19.
They further allege that an individual, later identified as Scott Magnano, entered Sportsmen's Outpost two days later, on July 15, 2007, and was provided multiple handguns, including the Glock, and corresponding ammunition, by William Christman (Christman), an employee. See complaint, ¶¶ 12, 19. They allege that "Christman failed to request from the individual personal identification or a state issued firearms permit." See complaint, ¶ 13.
In paragraph 14, the plaintiffs allege that "Christman left the individual, who was the only customer in the store, unattended and alone with the firearms and ammunition. As a result, this individual removed from Sportsmen's Outpost the unattended and unsecured Glock 21 handgun and a corresponding 14 bullet magazine."
In paragraph 15, they allege that, immediately thereafter, Christman informed Cortigliano that the Glock and ammunition had been stolen, and, despite this knowledge, the defendants failed to notify police about the theft for approximately three days. They further allege that, at the time he went to Sportsmen's Outpost, Scott Magnano was the subject of a Connecticut restraining or protective order and a foreign order of protection. See complaint, ¶ 20.
In paragraph 21, the plaintiffs allege that Scott Magnano came to Jennifer Magnano's home on August 23, 2007, struck her on the head with the Glock, and then abducted her at gunpoint in front of her children, David Magnano and Emily Thibeault. The plaintiffs allege also that Scott Magnano shot and killed Jennifer Magnano on the same day, with the Glock and ammunition which had been removed from Sportsmen's Outpost on July 15, 2007. See complaint, ¶ 22. The plaintiffs also allege that, as a result of the defendants' conduct, Jennifer Magnano died and her children suffered severe emotional distress.
Additional references to the plaintiffs' allegations are set forth below.
In support of their motion to dismiss, the defendants assert that this action is barred by the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 et seq. (PLCAA), and dismissal is required. In addition, they claim that certain counts should be stricken as legally insufficient.
In response, the plaintiffs assert that the PLCAA does not bar their case, as it falls within more than one exception under the PLCAA, and is not a "qualified civil liability action" that is subject to dismissal. See 15 U.S.C. § 7903(5)(A). They also contend that, even if this is a qualified action barred by the PLCAA, the PLCAA is unconstitutional as applied to this case. They also argue, in opposition to the defendants' other legal challenges, that they properly have pleaded their causes of action.
After the plaintiffs challenged the constitutionality of the PLCAA, the court granted the United States of America's (Government) motion to intervene, concerning the constitutionality of the PLCAA.
II
Standard Of Review
"[The motion to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." See Practice Book § 10-31(a).
"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989). The Supreme Court has termed this "fundamental principle" the "`jurisdiction first' rule. Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 816, 12 A.3d 852 (2011).
"[T]rial courts addressing motions to dismiss for lack of subject matter jurisdiction . . . may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.
`When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counter affidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein . . . Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." (Citations omitted; emphasis in original; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 347-48, 977 A.2d 636 (2009).
Here, no affidavits were presented. There are no disputed facts. "[T]he motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 201, 994 A.2d 106 (2010). No evidentiary hearing need be held on a motion to dismiss where there is no genuine issue as to a material fact. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). As discussed below, the court decides the motion on the basis of the allegations in the complaint.
III
Discussion
A
Claims Against Sportsmen's Outpost
1. Predicate Exception To The PLCAA
As stated above, the defendants' motion to dismiss is premised on the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-03 ("PLCAA"), which prohibits bringing, in any federal or state court, certain civil actions against manufacturers or sellers of firearms distributed in interstate or foreign commerce.
In response, the plaintiffs assert that their claims come within the exceptions to the PLCAA or that it does not apply to the facts alleged. In the alternative, they challenge the constitutionality of the PLCAA.
The "court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case." (Internal quotation marks omitted.) CT Page 12267 Luurtsema v. Commissioner of Correction, 299 Conn. 740, 752, 12 A.3d 817 (2011). Accordingly, the court first considers the applicability of the PLCAA and exceptions thereto.
The PLCAA prohibits the commencement of a "qualified civil liability action" in any state or federal court. See 15 U.S.C. § 7902(a). Where the PLCAA bars the action, dismissal is required. See City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 395, 404 (2d Cir. 2008), cert. denied, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009).
"In general, we look to the federal courts for guidance in resolving issues of federal law . . . Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive." (Citations omitted.) Turner v. Frowein, 253 Conn. 312, 340-41, 752 A.2d 955 (2000).
A "qualified civil liability action" is defined as "a civil action . . . brought by any person against a manufacturer or seller of a [firearm or ammunition that has been shipped or transported in interstate or foreign commerce] . . . for damages, . . . or other relief resulting from the criminal or unlawful misuse of [the firearm] by the person or a third party . . ." See 15 U.S.C. § 7903(5)(A). A "seller" includes licensed dealers and importers and persons engaged in the business of selling ammunition. See 15 U.S.C. § 7903(6).
"Congress enacted the PLCAA in response to `[l]awsuits . . . commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.' [15 U.S.C.] § 7901(a)(3). Congress found that manufacturers and sellers of firearms `are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.' [15 U.S.C.] § 7901(a)(5). Congress found egregious `[t]he possibility of imposing liability on an entire industry for harm that is solely caused by others.' [15 U.S.C.] § 7901(a)(6). Indeed, the PLCAA's stated primary purpose is
[t]o prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.
[15 U.S.C.] § 7901(b)(1).
"The PLCAA provides for six exceptions to the definition of a `qualified civil liability action.' See [15 U.S.C.] § 7903(5)(A)(i)-(vi). Most relevant to this case, a qualified civil liability action `shall not include . . . an action in which a manufacturer or seller of a 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.' [15 U.S.C.] § 7903(5)(A)(iii). This is known as the `predicate exception.'" (Emphasis added.) Estate of Charlot v. Bushmaster Firearms, Inc., 628 F.Sup.2d 174, 180 (D.D.C. 2009).
At oral argument, the plaintiffs mentioned the PLCAA's "minor child exception." 15 U.S.C. § 7903(5)(D) provides, "[n]othing in this chapter shall be construed to limit the right of a person under 17 years of age to recover damages authorized under Federal or State law in a civil action that meets 1 of the requirements under clauses (i) through (v) of subparagraph (A)." This provision does not create an additional exception to the PLCAA; rather, it states that the PLCAA shall not be construed to limit a child's right to recover in a civil action which meets the requirements of enumerated exceptions.
"The predicate exception was meant to apply only to statutes that actually regulate the firearms industry . . ." City of New York v. Beretta U.S.A. Corp., supra, 524 F.3d 404. "[S]tatutory exceptions are to be construed narrowly in order to preserve the primary operation of the [general rule]." (Internal quotation marks omitted.) Id., 403.
The court addresses below the statutory violations which the plaintiffs allege in their complaint are applicable here.
In their memorandum in opposition (#144), p. 8, the plaintiffs mention other statutes, besides those discussed below, which are not pleaded in their complaint, such as 18 U.S.C. §§ 2 and 922(d), (m), and (t). Since these statutes are not pleaded, the court need not consider them. See Practice Book § 10-3. Also, since they are merely mentioned in the plaintiffs' memorandum, the court need not consider them for that reason also. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) ("We are not obligated to consider issues that are not adequately briefed . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived . . ." (Citation omitted; internal quotation marks omitted.).
(a)
18 U.S.C. § 922(b)(2) and General Statutes §§ 29-31, 29-33, and 29-361: Sell, Deliver or Transfer
The plaintiffs allege that Sportsmen's Outpost knowingly violated 18 U.S.C. § 922(b)(2) and General Statutes §§ 29-31, 29-33 and 29-361. See complaint, ¶ 26f. These statutes pertain to the sale, delivery, or transfer of firearms. The defendants contend that, since the plaintiffs allege that Scott Magnano stole the Glock, these statutes are not applicable here, and Sportsmen's Outpost was not required to comply with their requirements, which include, for example, as discussed below, a written application and background check (§ 29-33(c)) and obtaining evidence of identity (§ 29-31).
18 U.S.C. § 922(b)(2) provides, in relevant part, that "[i]t shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver . . . any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the licensee knows or has reasonable cause to believe that the purchase or possession would not be in violation of such State law or such published ordinance[.]" (Emphasis added.) Thus, violation of this federal statute is based on a violation of State law.
General Statutes § 29-31 pertains to display of permits to sell and records of sales of pistols and revolvers. General Statutes § 29-33 pertains to the sale, delivery, or transfer of pistols and revolvers. General Statutes § 29-361 pertains to verification of eligibility of persons to receive or possess firearms; the State database; the instant criminal background check, and related issues. Like the other Connecticut statutes referred to above, its provisions relate to the sale, delivery or transfer of firearms.
Section 29-31 provides, in relevant part, that "[n]o sale of any pistol or revolver shall be made except in the room, store or place described in the permit for the sale of pistols and revolvers, and such permit or a copy thereof certified by the authority issuing the same shall be exposed to view within the room, store or place where pistols or revolvers are sold or offered or exposed for sale, and no sale or delivery of any pistol or revolver shall be made unless the purchaser or person to whom the same is to be delivered is personally known to the vendor of such pistol or revolver or the person making delivery thereof or unless the person making such purchase or to whom delivery thereof is to be made provides evidence of his identity." (Emphasis added.)
Section 29-33 provides, in relevant part, "(a) [n]o person, firm or corporation shall sell, deliver or otherwise transfer any pistol or revolver to any person who is prohibited from possessing a pistol or revolver as provided in section 53a-217c" and "(b) . . . no person may purchase or receive any pistol or revolver unless such person holds a valid permit to carry a pistol or revolver . . . a valid permit to sell at retail a pistol or revolver . . ., or a valid eligibility certificate for a pistol or revolver . . . or is a federal marshal, parole officer or peace officer." (Emphasis added.)
Section § 29-33(c) provides that "[n]o person, firm or corporation shall sell, deliver or otherwise transfer any pistol or revolver except upon written application on a form prescribed and furnished by the Commissioner of Public Safety" and that "[n]o sale, delivery or other transfer of any pistol or revolver shall be made unless the person making the purchase or to whom the same is delivered or transferred is personally known to the person selling such pistol or revolver or making delivery or transfer thereof or provides evidence of his identity in the form of a motor vehicle operator's license, identity card . . . or valid passport. No sale, delivery or other transfer of any pistol or revolver shall be made until the person, firm or corporation making such transfer obtains an authorization number from the Commissioner of Public Safety. Said commissioner shall perform the national instant criminal background check and make a reasonable effort to determine whether there is any reason that would prohibit such applicant from possessing a pistol or revolver as provided in section 53a-217c. If the commissioner determines the existence of such a reason, the commissioner shall deny the sale and no pistol or revolver shall be sold, delivered or otherwise transferred by such person, firm or corporation to such applicant." (Emphasis added.)
Section 29-33(e) provides that, "[u]pon the sale, delivery or other transfer of any pistol or revolver, the person making the purchase or to whom the same is delivered or transferred shall sign a receipt for such pistol or revolver which shall contain the name and address of such person, the date of sale, the caliber, make, model and manufacturer's number and a general description of such pistol or revolver, the identification number of such person's permit to carry pistols or revolvers, . . . permit to sell at retail pistols or revolvers, . . . or eligibility certificate for a pistol or revolver, . . . and the authorization number designated for the transfer by the Department of Public Safety. The person, firm or corporation selling such pistol or revolver or making delivery or transfer thereof shall give one copy of the receipt to the person making the purchase of such pistol or revolver or to whom the same is delivered or transferred, shall retain one copy of the receipt for at least five years, and shall send, by first class mail, or electronically transmit, within forty-eight hours of such sale, delivery or other transfer, one copy of the receipt to the Commissioner of Public Safety and one copy of the receipt to the chief of police or, where there is no chief of police, the warden of the borough or the first selectman of the town, as the case may be, of the town in which the transferee resides." (Emphasis added.)
Section 29-361(a) provides that the "Commissioner of Public Safety shall establish a state database . . . that any person, firm or corporation who sells or otherwise transfers pistols or revolvers may access, by telephone or other electronic means in addition to the telephone, for information to be supplied immediately, on whether a permit to carry a pistol or revolver, . . . a permit to sell at retail a pistol or revolver, . . . or an eligibility certificate for a pistol or revolver, . . . is valid and has not been revoked or suspended."
Section 29-361(d)(1) provides that "[t]he Department of Public Safety shall be the point of contact for initiating a background check through the National Instant Criminal Background Check System (NICS), established under section 103 of the Brady Handgun Violence Prevention Act, on individuals purchasing firearms."
Section 29-361(e) provides, "[a]ny person, firm or corporation that contacts the Department of Public Safety to access the database established under this section and determine if a person is eligible to receive or possess a firearm shall not be held civilly liable for the sale or transfer of a firearm to a person whose receipt or possession of such firearm is unlawful or for refusing to sell or transfer a firearm to a person who may lawfully receive or possess such firearm if such person, firm or corporation relied, in good faith, on the information provided to such person, firm or corporation by said department, unless the conduct of such person, firm or corporation was unreasonable or reckless. (Emphasis added.)
Section 29-361(f) provides that "[a]ny person, firm or corporation that sells, delivers or otherwise transfers any firearm . . . shall contact the Department of Public Safety to access the database established under this section and receive an authorization number for such sale, delivery or transfer." (Emphasis added.)
The plaintiffs argue that these cited statutes are applicable here since they are not limited to the sale of a firearm, but also concern "delivery" or "transfer" of a firearm. They contend that an intentional transfer is not required, nor is a transfer of title.
The plaintiffs also claim that General Statutes § 53a-217c, which concerns criminal possession of a pistol or revolver, prohibits firearms dealers from selling, delivering, or otherwise transferring a firearm to a person subject to a restraining order. This statute does not refer to firearms dealers or to the sale, delivery or transfer of a firearm. Rather, as quoted above, see note 5, it is referred to in § 29-33.
"With respect to the construction and application of federal statutes, principles of comity and consistency require us to follow the plain meaning rule . . . because that is the rule of construction utilized by the United States Court of Appeals for the Second Circuit . . . Moreover, it is well settled that [t]he decisions of the Second Circuit Court of Appeals carry particularly persuasive weight in the interpretation of federal statutes by Connecticut state courts . . . Accordingly, our analysis of the pertinent federal [provision] begins with the plain meaning of the statute . . . If the meaning of the text is not plain, however, we must look to the statute as a whole and construct an interpretation that comports with its primary purpose and does not lead to anomalous or unreasonable results." (Citations omitted; internal quotation marks omitted.) Rodriquez v. Testa, 296 Conn. 1, 11, 993 A.2d 955 (2010).
In addition, the meaning of a word may vary depending on the context of its usage. "As Justice Holmes wrote, `[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918)." Dewitt v. John Hancock Mutual Life Insurance Co., 5 Conn.App. 590, 594, 501 A.2d 768 (1985). By its definition, a word may imply "an allowance for some degree of difference depending on the `thing' involved. It [may] suggest . . . as well, a sense of compatibility with the context of its referent as that may be. Its flavor of relativity, depending on the circumstances of its usage, implies some leeway within permissible limits." Builders Service Corp. v. Planning and Zoning Commission, 208 Conn. 267, 277, 545 A.2d 530 (1988).
"[A]ny word in the English language — except for words of specialized contexts, such as mathematics or science — will ordinarily have multiple meanings, depending on the context in which it has been used." Community Renewal Team, Inc. v. United States Liability Insurance Co., 128 Conn.App. 174, 180 (2011).
In their complaint, the plaintiffs allege that the Glock and ammunition were taken by Scott Magnano from Sportsmen's Outpost as a result of being left unattended. In paragraphs 12 and 14, they allege that Christman, an employee, provided multiple handguns and ammunition to the man who entered Sportsmen's Outpost on July 15, 2007. See complaint, ¶ 12. In paragraph 14, they allege, "Christman left the individual, who was the only customer in the store, unattended and alone with the firearms and ammunition. As a result, this individual removed from Sportsmen's Outpost the unattended and unsecured Glock 21 handgun and a corresponding 14 bullet magazine."
They further allege, in paragraph 15, that "[i]mmediately thereafter," Christman informed Cortigliano "that the Glock 21 and ammunition had been stolen." In paragraphs 15-16, they allege that the defendants reported "the theft." In paragraph 19, they allege that, "[d]uring the ensuing police investigation into the theft," Cortigliano identified Scott Magnano as the person who "took the Glock 21 and its corresponding ammunition" on July 15, 2007.
The decisional law cited by the plaintiffs in this part of their argument, United States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996), does not provide support for their position that a transfer or delivery is alleged, triggering the obligation to comply with the statutes upon which they premise this part of their arguments. There, in violation of 18 U.S.C. § 922(d), under which it is illegal to "sell or otherwise dispose" of a firearm to a convicted felon, an individual, Monteleone, voluntarily provided a firearm to Brown, a convicted felon, in order to have it repaired. See id., 77 F.3d 1088.
The court affirmed the district court's jury instruction, which informed the jury that, as used in the indictment, "the term `dispose of' . . . means to transfer a firearm so that the transferee acquires possession of the firearm." (Internal quotation marks omitted.) Id., 1092. "This definition still requires a voluntary act by the `transferor' to turn over the firearm to the transferee, as opposed to a nonconsensual taking by the `transferee.' To the extent that plaintiffs' argument requires the conclusion that a gun shop is required to perform a background check or complete a federal firearms form before having a gun stolen, [the court] cannot agree." Estate of Kim v. Coxe, Alaska Superior Court, First Judicial District at Juneau, Case No. 1JU-08-761 CI (October 7, 2010, Pallenberg, J.), pp. 9-10 of 21 (discussing United States v. Monteleone, supra).
This understanding of the meaning of "transfer" is consistent with the U.S. Supreme Court's interpretation of 18 U.S.C. § 922(a)(6), in Huddleston v. United States, 415 U.S. 814, 823, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974), determining that pawnshop firearm redemptions are covered by that statute: "`[A]cquisition' and `sale or other disposition' are correlatives. It is reasonable to conclude that a pawnbroker might `dispose' of a firearm through a redemptive transaction." A taking without permission as a result of leaving a firearm and ammunition unattended markedly differs from a business transaction.
Similarly, although the plaintiffs allege, in paragraph 12, that Christman "delivered" the guns, "delivery" has been found to have a meaning equivalent to transfer. "To deliver is to give or transfer, to yield possession or control of, to hand over . . . It is the physical act of transferring possession." (Citation omitted.) Koval v. Liquor Control Commission, 149 Conn. 63, 65, 175 A.2d 358 (1961).
ATF Ruling 2010-1 (Ruling), cited by the plaintiffs, also is consistent with this understanding of "transfer." Its topic is the temporary assignment of a firearm by a federal firearms licensee to others, such as a consultant, not theft of a firearm. In that context, the ATF stated, at page 2, "A `transfer' includes any change in dominion or control of a firearm, whether temporary or permanent, commercial or noncommercial. A change in dominion or control may occur even when such change does not convey title to the firearm.
ATF is the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
`Businesses carry out operations through their employees. When [a licensee] temporarily assigns a firearm to an employee for bona fide business purposes, title and control of the firearm remain with the licensee." In its holding, the Ruling states, at page 3, that "[t]he temporary assignment of a firearm by [a licensee] to its unlicensed agents, contractors, volunteers, or any other person who is not an employee of the [licensee], even for bona fide business purposes, is a transfer or disposition for purposes of the Gun Control Act . . ." An assignment is not the same thing as a non-consensual taking.
Also unavailing to the plaintiffs is their argument that a jury could reasonably find that Sportsmen's Outpost engaged in an illegal, "off-the-books" sale to Scott Magnano. See plaintiffs' memorandum in opposition (#144), p. 11. This theory is not pleaded.
The plaintiffs' references, in paragraphs 16-19 of the complaint, to the July 13, 2007 visit of a "suspicious customer," which Cortigliano mentioned to police when he reported the theft, and whom he later identified as Scott Magnano, does not change the plaintiffs' allegations about the July 15, 2007 unlawful taking into an alleged "off-the-books" sale.
As discussed above, the court "must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Gold v. Rowland, supra, 296 Conn. 200-01. The "off-the-books" sale theory is not alleged, nor is it necessarily implied. "[A] plaintiff may not allege one cause of action and recover on another." (Internal quotation marks omitted.) Id., 296 Conn. 221.
Thus, the plaintiffs have not alleged facts showing that, pertaining to the incidents alleged, Sportsmen's Outpost was required to comply with 18 U.S.C. § 922(b)(2) and General Statutes §§ 29-31, 29-33, 29-361. The plaintiffs do not allege a sale, delivery, or transfer in violation thereof. Accordingly, here, as a matter of law, these statutes do not serve as predicate exceptions to the PLCAA.
(b)
18 U.S.C. § 923(g)(6): Delay In Reporting Incident
The plaintiffs also assert that Sportsmen's Outpost violated 18 U.S.C. § 923(g)(6). In paragraph 15 of the complaint, they allege that, after Christman informed Cortigliano that the Glock 21 and ammunition had been stolen, "Sportsmen's Outpost failed to notify police about the theft for approximately three days." The plaintiffs allege that this was a knowing failure to comply with 18 U.S.C. § 923(g)(6), which provides, "[e]ach licensee shall report the theft or loss of a firearm from the licensee's inventory or collection, within 48 hours after the theft or loss is discovered, to the Attorney General and to the appropriate local authorities." See complaint, count one, ¶ 26f.
The defendants contend that § 923(g)(6) is merely a reporting statute, which is not applicable to the "sale or marketing" of firearms. See 15 U.S.C. § 7903(5)(A)(iii). Section 923(g)(6) pertains to the licensing of firearms dealers. As a statute which regulates the firearms industry, violation of it may be a predicate exception to the PLCAA. See City of New York v. Beretta U.S.A. Corp., supra, 524 F.3d 404.
The defendants also argue that the plaintiffs cannot rely on an alleged violation of 18 U.S.C. § 923(g)(6) as a predicate exception, since, as a matter of law, the alleged 24-hour delay in reporting the theft was not the proximate cause of the alleged injuries. They assert that the alleged reporting violation cannot satisfy the second requirement of the statutory exception, that "the violation was a proximate cause of the harm for which relief is sought." See 15 U.S.C. § 7903(5)(A)(iii).
In response, the plaintiffs contend that questions concerning proximate cause are best left to the trier of fact. They assert that the alleged reporting violation of 18 U.S.C. § 923(g)(6), by reporting within three days (seventy-two hours), instead of within the required forty-eight hours, proximately caused Jennifer Magnano's death. As discussed above, the alleged theft occurred on or about July 15, 2007. See complaint, ¶ 12. The shooting of Jennifer Magnano occurred on August 23, 2007, thirty-nine days later, and more than five weeks after (1) when the theft should have been reported and (2) when it was reported. See complaint, ¶ 21.
"The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995).
"To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).
"Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . In negligence cases such as the present one, in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff . . .
"The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong . . . Even where harm was foreseeable, [the Supreme Court] has found no duty when the nexus between a defendant's negligence and the particular consequences to the plaintiff was too attenuated." (Citations omitted; footnotes omitted; internal quotation marks omitted.) First Federal Savings Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999).
Here, as stated above, in order to come within the predicate exception, the plaintiffs claim that the alleged delay in reporting the theft for a twenty-four-hour period is a proximate cause of the murder which occurred over five weeks later. The Appellate Court's recent analysis of proximate cause, as a matter of law, in Malloy v. Town of Colchester, 85 Conn.App. 627, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004), is instructive.
There, the plaintiff suffered serious physical injuries when the motor vehicle he was operating collided with a horse, owned by the Anconas, which was roaming on the road. The plaintiff brought claims against the Town's animal control officer (Favry) and first selectman (Contois). Over many years, the McMorrows, the owners of the property adjoining the Anconas' property, had complained to Favry and Contois about animals, including horses, wandering onto their land from the Anconas' property. "The officials told the McMorrows that there was nothing that they could do about the situation. The animal warden claimed that he could not take custody of an animal unless he found it roaming free." Id., 85 Conn.App. 630. "The plaintiff assert[ed] that if the defendants had not disavowed a duty to act, on the night of the accident, McMorrow would have notified the appropriate authorities, and the accident would have been prevented." Id., 632.
In affirming the trial court's setting aside of the jury's verdict as to Favry and Contois, the Appellate Court explained that the connection between the defendants' conduct and the plaintiff's injury was too attenuated to amount to proximate cause of the accident. "[I]t is clear that the legal cause of the accident was the horse and its presence in the road. Even if we assume arguendo that on the night of the accident, McMorrow notified the defendants of the roaming animal, it is conjecture to think that the animal would have been located before the unfortunate accident. Even if the animal had been located, it is conjecture to think that the people engaged in the search would have been able to control or contain the horse in such a way as to have prevented the accident. Moreover, one cannot say that the defendants' alleged failure to act in the past was the proximate cause of the injury because, even if the defendants had impounded the horse in the past, it does not necessarily follow that the horse would not have been roaming on the night in question. There are simply too many assumptions that need to be made in order for this court to conclude that the defendants' failure to investigate the incident was the proximate cause of the plaintiff's injury." Malloy v. Town of Colchester, supra, 85 Conn.App. 634-35.
Likewise, based on the plaintiffs' allegations here, it is conjecture to think that, if Sportsmen's Outpost had notified the police of the theft of the Glock within forty-eight hours, instead of within seventy-two hours as the plaintiffs allege, that the murder of Jennifer Magnano five weeks later would have been prevented. The alleged twenty-four-hour delay in reporting is too attenuated from the shooting to be a substantial factor in bringing about the plaintiffs' injuries. See Winn v. Posades, supra, 281 Conn. 56-57.
Cases cited by the plaintiffs are unpersuasive as to this point. Very different circumstances were at issue in Kalina v. K-Mart Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90 269920 (August 5, 1993, Lager, J.), where the plaintiff's decedent died from gunshot wounds after her estranged husband shot her with a rifle he had purchased on the same day at a K-Mart store. Thus, that shooting happened very soon after the alleged sale, not over five weeks later.
There, the court concluded that "reasonable minds could conclude that the scope of risk created by the negligent sale of a firearm and ammunition encompasses acts that endanger others . . ." Id. That is not the issue here with respect to the allegation of delay in reporting. The scope of risk created by Scott Magnano's emergence from Sportsmen's Outpost with the Glock is a different question from that of whether the twenty-four-hour delay in reporting the incident, five weeks before the shooting, was a proximate cause thereof.
Similarly, delay in reporting apparently was not at issue in Johnson v. Bryco Arms, 304 F.Sup.2d 383, 399-400 (E.D.N.Y. 2004), where a firearm was used in a massacre at a Wendy's Restaurant. Instead, the plaintiff alleged that "the distributor, Acusport, negligently entrusted the firearm in question to the retailer, Atlantic Gun Tackle, despite the knowledge that it was consistently engaging in sales that diverted guns into the illegal, underground firearms market. He further alleges that Atlantic Gun Tackle sold the gun in question to Angela Freeman although it knew or should have known that she was a straw purchaser who was buying the gun on behalf of Bernard Gardier who could not legally purchase it himself. Although the firearm subsequently changed hands illegally a number of times before ultimately coming into the possession of plaintiff's attackers, it is alleged that defendants were put on notice that this kind of transfer would foreseeably occur . . . Plaintiff also contends that defendants are part of a small group of corrupt or negligent gun companies which play a disproportionate role in supplying the illegal gun market. He alleges that defendants' marketing and distribution practices result in guns moving more readily into the illegal market than do those of other distributors or retailers and that defendants had the power to stop the flow of their guns into the illegal market but did not do so." Id. Thus, rather than alleged conduct which was too attenuated from the alleged consequences, the court found that the plaintiff had alleged a "direct causal connection . . . between defendants' business practices and plaintiff's injuries[.]" Id., 400. A direct causal connection between the alleged twenty-four-hour delay in reporting the incident to the police and the shooting five weeks later is absent here.
Since they are too attenuated and call for conjecture and surmise, as a matter of law, the plaintiffs' allegations concerning the alleged delay in reporting fail to meet the second requirement of the predicate exception to the PLCAA, that "the violation was a proximate cause of the harm for which relief is sought." See 15 U.S.C. § 7903(5)(A)(iii)(c)
General Statutes § 29-37d: Burglar Alarm
In paragraph 11 of the complaint, the plaintiffs allege that Sportsmen's Outpost had neither a video surveillance system nor a burglar alarm system. They claim that Sportsmen's Outpost knowingly violated General Statutes § 29-37d, which provides, in relevant part, that firearms dealers "shall have a burglar alarm system installed on the premises of its establishment . . . Such alarm system shall be directly connected to the local police department or monitored by a central station and shall activate upon unauthorized entry or interruption to such system."
Since this statute regulates the firearms industry, violation of it may be a predicate exception to the PLCAA. See City of New York v. Beretta U.S.A. Corp., supra, 524 F.3d 404.
However, § 29-37d does not require a firearms dealer to have a video surveillance system. In addition, according to the plaintiffs' allegations in their complaint, when Scott Magnano visited Sportsmens' Outpost on July 15, 2007, he was the only customer in the store, dealt with an employee, was left unattended, and removed the Glock and ammunition. See complaint, ¶¶ 12, 14. The plaintiffs do not allege that he broke into and burglarized Sportsmen's Outpost.
Accordingly, no "unauthorized entry or interruption," which would have caused a required burglar alarm system to activate, is alleged. See General Statutes § 29-37d. Under these circumstances, the lack of a burglar alarm system cannot be "a proximate cause of the harm for which relief is sought." See 15 U.S.C. § 7903(5)(A)(iii).
2. Negligent Entrustment And Negligence Per Se
The PLCAA also provides exceptions for negligent entrustment and negligence per se claims. Under the PLCAA, a "qualified civil liability action" does not include "an action against a seller for negligent entrustment or negligence per se." See 15 U.S.C. § 7903(5)(A)(ii).
"`[N]egligent entrustment' means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others." See 15 U.S.C. § 7903(5)(B).
This definition is consistent with Connecticut law on negligent entrustment. "[E]ntrustment plainly means permitting another to do something or to use something." (Emphasis in original.) Bryda v. McLeod, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285188 (July 12, 2004, Tanzer, J.) ( 37 Conn. L. Rptr. 492).
The defendants contend that the plaintiffs' allegations in their complaint establish that this exception is inapplicable, since they do not allege that the Glock and ammunition were supplied by Sportsmen's Outpost to Scott Magnano for his use. The plaintiffs argue that the defendants base their contention on facts which are not in the complaint, "namely, whether or not Defendants' supplied Magnano with the Glock 21 `for his use . . .'" See plaintiffs' memorandum in opposition (#144), p. 16. They claim that the circumstances surrounding why the defendants delivered the Glock to him have not been uncovered and should not be the subject of defendants' motion. Rather, they assert that they should be permitted to engage in discovery.
The plaintiffs' memorandum, cited above, concedes that they have not alleged that Sportsmens' Outpost supplied the Glock to Scott Magnano for his use. As discussed above, in paragraph 14 of the complaint, they allege that, as a result of being left "unattended and alone," he removed the firearm and ammunition from Sportsmen's Outpost. This is the opposite of being provided a handgun for use since it alleges a taking without permission. The fact that ammunition allegedly was provided does not show that the seller supplied the firearm for Scott Magnano's use. The plaintiffs' allegations, which the court must take to be the facts, fail to come within the negligent entrustment exception to the PLCAA, under which the seller must provide the firearm to the person "for use." See 15 U.S.C. § 7903(5)(B).
As discussed above, the court must take the facts to be those alleged in the complaint and decide the motion on the existing record alone. See Gold v. Rowland, supra, 296 Conn. 200-01; Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 347-48.
In this regard, the plaintiffs' reference, at oral argument, to Cheskus v. Christiano, 120 Conn. 596, 182 A. 131 (1935), as permitting later amendment to a complaint to come within an applicable statute, is unpersuasive. There, at trial, the complaint was amended to conform to the proof in order to refer to a statute which prohibited operation of a vehicle carrying an extended load unless a red light was attached to the rear end of the load. See id., 599. "The amendment of the complaint with reference to this statute, made at the suggestion of the court, was permissible, full opportunity to meet it having at the same time been extended to the defendants. Its effect was to make the pleadings conform to the proof and it did not in any way change the cause of action for negligence. There was an allegation that the truck was parked without giving any warning, and this statute requires the red light as a warning." Id.
There, no challenge to the court's jurisdiction was at issue. Here, in contrast, as stated above, the court is required to adjudicate the motion to dismiss based on the allegations of the complaint. It may not await trial in order to, perhaps, permit a plaintiff to amend the complaint to conform with proof which is later offered. As stated above, once the issue of jurisdiction is raised, the court is required to address it before proceeding further with the case. See St. Paul Travelers Companies, Inc. v. Kuehl, supra, 299 Conn. 816; Statewide Grievance Committee v. Rozbicki, supra, 211 Conn. 245.
The court has not been apprised of any effort made to conduct discovery prior to the argument of the motion to dismiss. Where, as here, the alleged facts clearly show that the statutory exception is inapplicable, discovery is not warranted to possibly find facts to enable the plaintiff to come within the exception. See Kenney v. Weaving, 123 Conn.App. 211, 219 n. 5 (2010) (no request for evidentiary hearing and no effort to engage in discovery prior to argument of motion to dismiss, citing Standard Tallow v. Jowdy, supra, 190 Conn. 56).
Under these circumstances, the court need not consider the other aspect of the negligent entrustment exception, concerning supplying the weapon "when the seller knows, or reasonably should know" that use of the product "in a manner involving unreasonable risk of physical injury to the person or others" is likely to ensue. See 15 U.S.C. § 7903(5)(B).
The plaintiffs also argue that Sportsmen's Outpost should have performed a background check on Scott Magnano before presenting weapons to him and leaving him alone. The federal regulatory scheme requires a firearms seller to conduct a background check on a person after he or she decides to purchase a firearm. "A federal firearms dealer has several duties, among which are . . . identifying purchasers on ATF Form 4473, which requires a purchaser to note his full name, residence, place of birth, height, and weight and to affirm that he is the actual purchaser of the firearm and that he is not disqualified from purchasing a firearm, and also requires the dealer to list his name and FFL number, and to answer questions regarding the purchaser's type of identification and the type, manufacturer, model, and serial number of the firearm being purchased. A dealer is also required to call the toll-free number of the National Instant Check System (NICS), which is maintained by the FBI, and read the information from Form 4473 over the telephone to obtain a background check on the purchaser." United States v. Kish, United States Court of Appeals, Docket Nos. 09-2222, 09-2276 (6th Cir. March 30, 2011), 2011 WL 1195951, n. 2.
A firearms dealer "may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. [Licensees] are strictly prohibited from initiating a NICS background check for any other purpose." See 28 C.F.R. § 25.6(a). Accordingly, a NICS background check may be initiated only in connection with a "transfer." As discussed above, the plaintiffs' allegations here do not amount to such a transfer. They allege no decision to purchase. Rather, they allege an unlawful taking. See Estate of Kim v. Coxe, Alaska Superior Court, Case No. 1JU-08-761 CI, supra.
As discussed above, General Statutes § 29-33(c) similarly provides for a background check under like circumstances.
Under these circumstances, the example used in the predicate exception, 15 U.S.C. § 7903(5)(A)(iii)(I), of failing to make an appropriate entry in a required record, is not applicable. That subsection provides that the predicate exception includes "any case in which the manufacturer or seller knowingly . . . failed to make appropriate entry in . . . any record required to be kept under Federal or State law with respect to the qualified product . . ."
The PLCAA does not provide a definition of negligence per se. "Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 860-61 n. 16, 905 A.2d 70 (2006). The Supreme Court has enunciated a "two-prong test for negligence per se: (1) that the plaintiffs were within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent." Gore v. People's Savings Bank, 235 Conn. 360, 368-69, 665 A.2d 1341 (1995).
In the plaintiffs' argument as to negligence per se, they state, without specifically identifying either the statutes or the referenced causes of action to which they refer, that they have alleged violations of numerous state and federal firearms laws designed to protect individuals such as Jennifer Magnano from the type of violence which she suffered, by preventing firearms dealers from improperly transferring firearms. The court has addressed above the various statutes cited in their complaint. Since, as discussed above, the court has found no alleged statutory violation applicable to the plaintiffs' allegations, their allegations also do not come within the negligence per se exception to the PLCAA.
3. Purposes Of The PLCAA
The plaintiffs also argue that the PLCAA was not intended to bar cases where gun sellers negligently cause harm, citing remarks by individual United States Senators in the legislative history and 15 U.S.C. § 7901(b)(1), which provides, "[t]he purposes of this chapter are as follows: . . . [t]o prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm CT Page 12282 solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended." (Emphasis added.) The plaintiff argues that the defendants seek to delete "solely caused" from 15 U.S.C. § 7901(b)(1), and that the PLCAA does not bar cases where the negligence of a firearms dealer was a contributing cause of harm.
The plaintiffs cite no case which interprets the PLCAA as generally permitting common-law negligence actions to proceed, based on 15 U.S.C. § 7901(b)(1)'s "solely caused by" language. In their memorandum (#144), page 21, footnote 10, they cite various court decisions, all of which pre-date the PLCAA.
"[I]n all preemption cases, and particularly in those in which Congress has legislated . . . in a field in which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the State were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (Internal quotation marks omitted.) Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 1194-94, 173 L.E.2d 51 (2009).
The United States Supreme Court adheres to "the cardinal rule that a statute is to be read as a whole, . . . since the meaning of statutory language, plain or not, depends on context." (Citation omitted.) King v. St. Vincent's Hospital, 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.E.2d 578 (1991). "[T]he starting point for interpreting a statute is the language of the statute itself." (Internal quotation marks omitted.) Adams Fruit Co. v. Barrett, 494 U.S. 638, 642, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990). "[W]here the language is not dispositive," the court looks to "the intent of Congress as revealed in the history and purposes of the statutory scheme." Id.
As recently explained in Ileto v. Glock, Inc., 565 F.3d 1126, 1135 (9th Cir. 2009), cert. denied, 130 S.Ct. 3320, 176 L.E.2d 1219 (2010), where the court also addressed the purpose of the PLCAA, including as set forth in 15 U.S.C. § 7901(b)(1), "Congress clearly intended to preempt common-law claims, such as general tort theories of liability." (Footnote omitted.) "That conclusion is bolstered by Congress' inclusion of the second exception to preemption: The PLCAA does not preempt claims against a seller of firearms for negligent entrustment or negligence per se. 15 U.S.C. § 7903(5)(A)(ii). That exception demonstrates that Congress consciously considered how to treat tort claims. While Congress chose generally to preempt all common-law claims, it carved out an exception for certain specified common-law claims (negligent entrustment and negligence per se)." Id., 565 F.3d 1135, n. 6.
The District of Columbia Court of Appeals also recently explained that the PLCAA does not bar all actions against gun sellers for negligently causing harm. "Undeniably, Congress meant the PLCAA to apply to pending `qualified civil liability actions.' . . . Congress did not . . .'totally abrogate' causes of action holding manufacturers or sellers liable for their actions causally linked to discharge of their firearms." (Citations omitted; emphasis in original; internal quotation marks omitted.) District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 174-75 (D.C. 2008), cert. denied, 129 S.Ct. 1579, 173 L.E.2d 675 (2009) (citing predicate exception, 15 U.S.C. § 7903(5)(A)(iii)).
As explained above, under the predicate exception, a qualified civil liability action "shall not include . . . an action in which a manufacturer or seller of a 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." See 15 U.S.C. § 7903(5)(A)(iii). (Emphasis added.)
"Also, Congress left undisturbed actions `brought against a seller for negligent entrustment or negligence per se,' id. § 7903(5)(A)(ii), as well as actions for `death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product.' Id. § 7903(5)(A)(v) . . . (Citation omitted.) Id., 175.
Thus, it is clear that, under the PLCAA, a "qualified civil liability action," see 15 U.S.C. § 7903(5)(A), with certain enumerated exceptions, includes cases where it is alleged that gun sellers negligently cause harm.
In summary, the court concludes that the PLCAA requires dismissal of the claims against Sportsmen's Outpost, since the plaintiffs' allegations are within its purview and do not come within its exceptions.
B
Constitutionality Of The PLCAA
Since, as discussed above, the court concludes that the plaintiffs' action is covered by the PLCAA and does not come within the enumerated statutory exceptions thereto, it next considers the plaintiffs' arguments concerning the constitutionality of the PLCAA. They claim that the PLCAA: (1) violates the Tenth Amendment to the United States Constitution and fundamental principles of federalism; (2) violates the separation of powers; (3) violates their due process rights; (4) violates the guarantee of equal protection; and (5) impermissibly infringes on their First Amendment right to petition.
1. Tenth Amendment And Fundamental Principles Of Federalism
The Tenth Amendment to the United States Constitution provides, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The plaintiffs assert that the PLCAA: (a) impermissibly directs state courts to immediately dismiss pending cases which are valid under state law; and (b) impermissibly impinges on Connecticut's sovereign right to allocate its lawmaking function.
The Government, as intervenor, asserts that the plaintiffs lack standing to raise a Tenth Amendment claim. While the plaintiffs rely on the minority view of two federal circuits, the court finds persuasive the majority view, as expressed by the Second Circuit's analysis in Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir. 2006), cert. denied, 552 U.S. 810, 128 S.Ct. 44, 169 L.Ed.2d 11 (2007). There, the court found controlling the United States Supreme Court's statement, in Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 144, 59 S.Ct. 366, 83 L.Ed. 543 (1939), that state-chartered utility companies, "absent the states or their officers, have no standing in this suit to raise any question under the [Tenth] [A]mendment."
Accordingly, here, since the requisite representation by the State of Connecticut or its officers is absent, the plaintiffs lack standing to raise constitutional challenges under the Tenth Amendment. See Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., supra, 462 F.3d 234. As a result, the court need not consider this part of their arguments. See Luurtsema v. Commissioner of Correction, supra, 299 Conn. 752.
The court notes that the United States Court of Appeals for the Second Circuit discussed this issue in City of New York v. Beretta U.S.A. Corp., supra, 524 F.3d 396-97, apparently since it was raised by the City, as a state entity, cited New York v. United States, 505 U.S. 144, 161-66, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (relied on here by the plaintiffs), and stated, "The PLCAA does not commandeer any branch of state government because it imposes no affirmative duty of any kind on any of them . . . The PLCAA therefore does not violate the Tenth Amendment." (Citation omitted; internal quotation marks omitted) Id., 397.
2. Separation Of Powers
Citing United States v. Klein, 80 U.S. 128, 147, 13 Wall. 128, 20 L.Ed. 519 (1871), the plaintiffs argue that the PLCAA violates the separation of powers by directing the outcome of a pending case when no rule of decision has been established, even when such an action is authorized by state law, which the PLCAA leaves undisturbed. "[L]ater decisions have made clear that [ Klein's] prohibition does not take hold when Congress amend[s] applicable law." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995).
The identical challenge to the PLCAA was raised before the United States Court of Appeals for the Second Circuit in City of New York v. Beretta U.S.A. Corp., supra, 524 F.3d 395-96, where the court explained that "the Act permissibly sets forth a new rule of law that is applicable both to pending actions and to future actions. The PLCAA bars qualified civil liability actions, as defined in the statute. The definition of qualified civil liability action permissibly sets forth a new legal standard to be applied to all actions. See Miller v. French, 530 U.S. 327, 348-49, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (holding that the section of Prison Litigation Reform Act providing that a motion to terminate operates as an automatic stay of prospective relief did not violate separation of powers because the automatic stay provision `simply imposes the consequences of the court's application of the new legal standard' and does not simply direct decision in a pending case); Robertson [v. Seattle Audubon Soc.], 503 U.S. [429] at 438-39, 112 S.Ct. 1407[, 118 L.Ed.2d 73 (1992)] (holding that an amendment to governing law allowing timber harvesting in old growth forest under certain conditions and providing that compliance with those conditions would satisfy the statutory requirements at issue in two existing cases `compelled changes in law, not findings or results under old law'). Because the PLCAA does not merely direct the outcome of cases, but changes the applicable law, it does not violate the doctrine of separation of powers."
"The PLCAA sets forth new standards that must be met before a case may be brought or a pending one may proceed against the manufacturer or seller of a firearm for damages resulting from the use of the firearm by a third person. When, but only when, a suit is found by a court not to meet one of the statutory exceptions to a `qualified civil liability action,' it must be dismissed . . . [N]othing within the statute controls a court's determination as to whether particular cases satisfy [the] new legal standard or its exceptions." (Internal quotation marks omitted.) District of Columbia v. Beretta U.S.A. Corp., supra, 940 A.2d 173.
Since, as discussed above, this court is directed not to decide constitutional issues when it is not necessary, it need not consider the Government's argument that separation of powers does not extend to non-Article III courts.
3. Due Process
The Due Process Clause of the Fifth Amendment to the United States Constitution provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law." The plaintiffs assert that the PLCAA has wholly eliminated their common-law rights, and those of other firearms violence victims, against particular tortfeasors who have caused them harm, without providing any alternate remedy, thereby depriving them of their due process right of redress in the courts. They claim that, rather than use a narrowly tailored means, Congress has implemented an overly broad and irrational shield.
"Laws enacted by Congress under its power to regulate interstate commerce, and thus meant to `adjust the burdens and benefits of economic life[,] come to the Court with a presumption of constitutionality, and . . . the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.' Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976)." District of Columbia v. Beretta U.S.A. Corp., supra, 940 A.2d 174.
"Barring irrational or arbitrary conduct, Congress can adjust the incidents of our economic lives as it sees fit. Indeed, the Supreme Court has not blanched when settled economic expectations were upset, as long as the legislature was pursuing a rational policy." (Internal quotation marks omitted.) Ileto v. Glock, Inc., supra, 565 F.3d 1140. In the absence of an identified suspect classification, the rational basis test does not involve "a more searching review." Id., 1141. Also, "although a cause of action is a species of property, a party's property right in any cause of action does not vest until a final unreviewable judgment is obtained." (Internal quotation marks omitted.) Id.
In enacting the PLCAA, "Congress was especially concerned with `[l]awsuits [that] have been commenced' seeking `money damages and other relief against manufacturers and sellers of firearms for harms caused by the misuse of their products by others, including criminals,' 15 U.S.C. § 7901(a)(3) (emphasis added), and with the threat to interstate commerce of thus `imposing liability on an entire industry for harm . . . solely caused by others.' Id. § 7901(a)(6) . . . Thus the PLCAA, extending as it does to all pending and future actions but exempting specified kinds of lawsuits from its reach, is reasonably viewed as an adjust[ment of] the burdens and benefits of economic life by Congress . . . one it deemed necessary in exercising its power to regulate interstate commerce." (Citations omitted; emphasis in original; internal quotation marks omitted.) District of Columbia v. Beretta U.S.A. Corp., supra, 940 A.2d 174-75.
As recently discussed by the Connecticut Supreme Court in Rodriguez v. Testa, supra, 296 Conn. 25-26, in City of New York v. Beretta U.S.A. Corp., supra, 524 F.3d 395, the United States Court of Appeals for the Second Circuit "specifically explained that, `[w]hen enacting the [PLCAA], Congress explicitly found that the third-party suits that the [federal law] bars are a direct threat to the firearms industry, whose interstate character is not questioned. Furthermore, the [federal law] only reaches suits that have an explicit connection with or effect on interstate commerce.' [([I]]nternal quotation marks omitted.) Id. The court thus concluded that there was no showing that Congress had exceeded its authority when `there [could] be no question of the interstate character of the industry in question and [when] Congress rationally perceived a substantial effect on the industry of the litigation that the [federal law sought] to curtail.'" (Emphasis omitted.)
Martinez v. Calfornia, 444 U.S. 277, 281-82, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980), provides a useful illustration. There, a California statute provided that public entities and employees were immune from suit for injury resulting from releasing a prisoner. See id., 444 U.S. 280. Rejecting a due process challenge, the court stated, "[t]his statute merely provides a defense to potential state tort-law liability." Id., 281. It found that "the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Id., 282. Here, in contrast, concerning the PLCAA, Congress explained the federal interest in protecting the firearms industry from third-party suits, which were found to be a direct threat thereto.
With respect to the plaintiffs' contention that Congress should have acted more narrowly, "under the deferential standard of review applied in substantive due process challenges to economic legislation, there is no need for mathematical precision in the fit between justification and means." Concrete Pipe Products of Calif., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 639, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). In view of Congress' explanation of the purposes of the PLCAA, discussed in part above, the means it chose, placing limits on permissible litigation, with specified exceptions, has not been shown to be irrational and arbitrary.
Plaintiffs' reliance on N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 201, 37 S.Ct. 247, 61 L.Ed. 667 (1917); and Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 88, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), is unpersuasive. As explained in Ileto v. Glock, Inc., supra, 565 F.3d 1144, "[i]n White, the Court expressed concern about whether `a State might, without violence to the constitutional guaranty of due process of law, suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute.' 243 U.S. at 201, 37 S.Ct. 247 (emphasis added). That dictum is inapposite. The PLCAA contains numerous exceptions and comes nowhere near setting aside all common-law rules concerning firearm manufacturers . . . Duke Power is even less persuasive. There, the Court reiterated that it was an open question whether a legislature may abolish a common-law recovery scheme without providing a reasonable substitute remedy. Duke Power, 438 U.S. at 88, 98 S.Ct. 2620 . . . [H]ere Congress has left in place a number of substitute remedies." (Internal quotation marks omitted.)
Also, in Duke Power, 438 U.S. 88 n. 32, the court stated that it is "clearly established that [a] person has no property, no vested interest, in any rule of the common law . . . The Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object, . . . despite the fact that otherwise settled expectations may be upset thereby . . . Indeed, statutes limiting liability are relatively commonplace and have consistently been enforced by the courts." (Citations omitted; internal quotation marks omitted.)
Likewise unavailing to the plaintiffs are Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254 (1921) and Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185 (1885). In Truax, the court found that an Arizona statute, concerning the remedy of injunction in labor disputes, "grants complete immunity from any civil or criminal action to the defendants, for it pronounces their acts lawful." Truax v. Corrigan, supra, 257 U.S. 328. As explained above, no such complete immunity is provided by the PLCAA, which requires dismissal of certain claims but not others.
Similarly, concerning a contract right to pay taxes by tendering bond coupons, the Poindexter court stated that a State may not deny "all redress for a deprivation of a right secured to him by the Constitution. To take away all remedy for the enforcement of a right is to take away the right itself." Poindexter v. Greenhow, supra, 114 U.S. 303. The PLCAA does not deny tort victims all redress; rather, it selectively preempts certain actions.
Thus, the court respectfully disagrees with the discussion of Due Process, cited by the plaintiffs, in City of Gary v. Smith Wesson Corp., Lake Superior Court, Cause No. 45D05-CT-00243 (October 23, 2006, Pete, J.), affirmed on other grounds, 875 N.E.2d 422 (Ind.App. 2007), transfer denied, 915 N.E.2d 978 (Ind. 2009).
As explained above, the PLCAA does not deprive the plaintiffs of all remedies. "[T]he PLCAA does not completely abolish [p]laintiffs' ability to seek redress. The PLCAA preempts certain categories of claims that meet specified requirements, but it also carves out several significant exceptions to that general rule. Some claims are preempted, but many are not." Ileto v. Glock, Inc., supra, 565 F.3d 1143.
Here, the PLCAA would not have prevented the plaintiffs from commencing an action against Scott Magnano's estate. In addition, the PLCAA permits actions which come within its several exceptions. See 15 U.S.C. § 7903(5)(A). In order to effectuate its purposes, the PLCAA rationally limits the categories of actions which are permitted against firearms dealers.
4. Equal Protection
Although the Fifth Amendment does not specifically refer to equal protection, the United States Supreme Court repeatedly has found there to be an "equal protection component of the Due Process Clause of the Fifth Amendment." United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (citing Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954)).
The plaintiffs contend that the PLCAA violates the equal protection guarantee of the Fifth Amendment by (1) depriving certain victims of firearm industry wrongdoing of their right to a remedy, while other persons may still recover, so long as the tortfeasor sold a product other than firearms; and (2) by discriminating even among victims of firearm seller negligence, in allowing victims harmed in states with statutory established causes of action to recover in court, while barring relief to others harmed in states where the judiciary established common-law standards. The second argument is premised on the predicate exception, discussed above, in which the PLCAA provides that a qualified civil liability action "shall not include . . . an action in which a manufacturer or seller of a 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." See 15 U.S.C. § 7903(5)(A)(iii).
"Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Concerning the PLCAA, in Ileto v. Glock, Inc., supra, 565 F.3d 1141, the court rejected the argument that review of the plaintiffs' equal protection contentions was subject to a higher level of scrutiny.
"There is nothing irrational or arbitrary about Congress' choice here: It saw fit to `adjust the incidents of our economic lives' by preempting certain categories of cases brought against federally licensed manufacturers and sellers of firearms. In particular, Congress found that the targeted lawsuits `constitute an unreasonable burden on interstate and foreign commerce of the United States,' 15 U.S.C. § 7901(a)(6), and sought `[t]o prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce,' id. § 7901(b)(4) . . . Congress carefully constrained the [PLCAA's] reach to the confines of the Commerce Clause. See, e.g., [15 U.S.C.] § 7903(2) (including an interstate-or foreign-commerce element in the definition of a `manufacturer'); id. § 7903(4) (same: `qualified product'); id. § 7903(6) (same: `seller')." (Footnote omitted.) Ileto v. Glock, Inc., supra, 565 F.3d 1140. "We have no trouble concluding that Congress rationally could find that, by insulating the firearms industry from a specified set of lawsuits, interstate and foreign commerce of firearms would be affected." Id., 1140-41. See 15 U.S.C. §§ 7901(a)(3)(6); 7901(b)(4) (Congressional findings concerning impact of lawsuits on firearms industry; purpose of preventing such lawsuits from imposing unreasonable burdens on commerce).
In Duke Power, the United States Supreme Court similarly concluded that there was no equal protection violation based on Congress' different treatment of the nuclear energy industry. "The general rationality of the Price-Anderson Act liability limitations — particularly with reference to the important congressional purpose of encouraging private participation in the exploitation of nuclear energy — is ample justification for the difference in treatment between those injured in nuclear accidents and those whose injuries are derived from other causes. Speculation regarding other arrangements that might be used to spread the risk of liability in ways different from the Price-Anderson Act is, of course, not pertinent to the equal protection analysis." Duke Power Co. v. Carolina Envtl. Study Group, Inc., supra, 438 U.S. 93-94.
Accordingly, since, in the PLCAA, Congress had a rational basis, protecting the firearms industry from defined "qualified civil liability actions," its decision to treat persons injured by firearms differently does not violate the plaintiffs' right to equal protection.
5. Right To Petition
The plaintiffs also argue that the PLCAA infringes on their and other gun violence victims' First Amendment right to petition, which includes the right to seek redress through the courts. The First Amendment to the United States Constitution provides, in relevant part, "Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances."
"[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." Bill Johnson's Restaurants v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). The right to petition is "one of the most precious of the liberties safeguarded by the Bill of Rights." (Internal quotation marks omitted.) BE K Constr. Co. v. NLRB, 536 U.S. 516, 524, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002).
As explained by the United States Court of Appeals for the Second Circuit in City of New York v. Beretta U.S.A. Corp., CT Page 12292 supra, 524 F.3d 3 97-98, the PLCAA does not violate this right. "By its terms, the [PLCAA] bars plaintiffs from courts for the adjudication of qualified civil liability actions, allowing access for only those actions that fall within [its] exceptions . . . [T]hese restrictions do not violate plaintiffs' right of access to the courts. The constitutional right of access [to the courts] is violated where government officials obstruct legitimate efforts to seek judicial redress . . . Unconstitutional deprivation of a cause of action occurs when government officials thwart vindication of a claim by violating basic principles that enable civil claimants to assert their rights effectively . . . The right to petition exists in the presence of an underlying cause of action and is not violated by a statute that provides a complete defense to a cause of action or curtails a category of causes of action . . . [O]ur cases rest on the recognition that the right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court . . . The PLCAA immunizes a specific type of defendant from a specific type of suit. It does not impede, let alone entirely foreclose, general use of the courts by would-be plaintiffs . . . For these reasons, the PLCAA cannot be said to deprive the [plaintiffs] of [their] First Amendment right of access to the courts." (Citations omitted; internal punctuation and quotation marks omitted.)
In summary, having considered each of the plaintiffs' constitutional challenges to the PLCAA, the court concludes that the plaintiffs have not shown that the PLCAA violates their constitutional rights.
C
Claims Against Cortigliano
The defendants contend that the PLCAA requires that all of the plaintiffs' claims, including those against Cortigliano, must be dismissed, since this case is a "qualified civil liability action" brought against "sellers" of a qualified product. See 15 U.S.C. § 7903(5)(a). The plaintiffs do not dispute that they allege that Cortigliano is a seller, as defined in the PLCAA.
As discussed above, under the PLCAA a "qualified civil liability action" includes those brought against a "manufacturer or seller of a qualified product." See 15 U.S.C. § 7903(5)(A). A "qualified product" includes a firearm or ammunition. See 15 U.S.C. § 7903(4).
"The term `seller' means, with respect to a qualified product . . . a dealer (as defined in section 921(a)(11) of title 18) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under chapter 44 of title 18; or . . . a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of title 18) in interstate or foreign commerce at the wholesale or retail level." See 15 U.S.C. § 7903(6). Under the PLCAA, "[t]he term `engaged in the business' has the meaning given that term in section 921(a)(21) of title 18, and, as applied to a seller of ammunition, means a person who devotes time, attention, and labor to the sale of ammunition as a regular course of trade or business with the principal objective of livelihood and profit through the sale or distribution of ammunition." See 15 U.S.C. § 7903(1).
18 U.S.C. § 921(a)(11) defines "dealer" to mean "(A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term `licensed dealer' means any dealer who is licensed under the provisions of this chapter."
18 U.S.C. § 921(a)(17) defines "ammunition" to mean "ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm."
18 U.S.C. § 921(a)(21)(C) defines "engaged in the business" to include "as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms."
In their complaint, the plaintiffs allege that Cortigliano is and was the principal and/or president of Sportsmen's Outpost, a federally licensed firearms dealer, which is or was engaged in the business of selling firearms to the general public and was authorized to do so in Connecticut. See complaint, ¶¶ 4, 7, 8. They allege that, as a licensed firearms dealer, Sportsmen's Outpost, and its agents and employees, and Cortigliano "knew or reasonably should have known their obligations under the federal and state statutes regulating the firearms industry." See complaint, ¶ 10. In Count Two, paragraph 30, they allege that Cortigliano owed them a duty "to adhere to federal and state statutes and regulations concerning the possession, delivery and/or sale of firearms and to exercise reasonable care in, among other ways, the safekeeping of firearms and ammunition in its possession and in reporting any theft or loss of weapons to police." They also allege that he exercised complete control over Sportsmen's Outpost. See Complaint, Count Two, ¶ 31. These allegations are incorporated in all counts alleged against Cortigliano.
Thus, the plaintiffs allege that Cortigliano was engaged in the business of selling firearms and ammunition, and controlled the operations of Sportsmen's Outpost, a federally licensed firearms dealer. With respect to the Glock and ammunition at issue here, Cortigliano was a "seller" as defined by the PLCAA. Accordingly, as discussed above with respect to Sportsmen's Outpost, all claims against him fall under the purview of the PLCAA.
Since, as discussed above, the PLCAA requires dismissal of the claims against Sportsmen's Outpost, for the same reasons, dismissal of the plaintiffs' claims against Cortigliano is also required.
CONCLUSION
Based on the foregoing reasons, the defendants' motion to dismiss the complaint is granted. In view of that determination, there is no need for the court to consider the motion to strike individual counts. Judgment may enter for the defendants. It is so ordered.