Opinion
99 CV 3999 (JBW), 99 CV 7037 (JBW).
February 24, 2003
MEMORANDUM AND ORDER
I. Introduction
This suit, brought by plaintiff National Association for the Advancement of Colored People ("NAACP") on behalf of itself and its New York members against manufacturers and distributors of handguns, is rapidly nearing trial. Plaintiff filed separate complaints in the summer of 1999 against gun manufacturers and gun distributors, alleging their conduct created a public nuisance in the improper sale and distribution of guns and seeking injunctive relief to abate that nuisance. Extensive discovery in these two cases, now joined for all purposes, has been on-going for over three years under the excellent supervision of the magistrate judge. That discovery has included the release of information from the Bureau of Alcohol, Tobacco, and Firearms' ("BATF") Firearms Tracing System and Firearms Licensing System databases for use in this litigation that has never before been available. See Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 216 F. Supp.2d 59 (E.D.N.Y. 2002); Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 268 (E.D.N.Y. 2002). Numerous motions have been filed and decided. See, e.g., Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 2000 WL 1789094 (E.D.N.Y. 2000); Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 2001 WL 336977 (E.D.N.Y. 2001); Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 2002 WL 31548729 (E.D.N.Y. 2002); Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446 (E.D.N.Y. 2002); Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 226 F. Supp.2d 391 (E.D.N.Y. 2002). Expert discovery and depositions are almost completed and the deadline for the filing of dispositive motions is fast approaching.
Various manufacturer and distributor defendants ("defendants") now move: (1) for a stay of this case pending the resolution of People of the State of New York v. Sturm, Ruger Co., Index No. 402586/00 (N.Y.Sup.Ct. Aug. 10, 2001) ("Sturm, Ruger Co.") in the New York state courts; and 2) for a jury trial. Those motions were fully briefed and argued before this court at a hearing held on January 29, 2003. The court denied both motions orally on the record. This memorandum is issued to explain the court's decisions in further detail.
II. Defendant's Motion for an Interim Order of Stay
A. Facts
Sturm, Ruger Co. is a case brought in New York state court by Eliot Spitzer, the New York State Attorney General. alleging that the conduct of gun manufacturers and distributors creates a statutory and a common law public nuisance. Defendants ask that the instant case be stayed until the New York Court of Appeals issues a decision in Sturm, Ruger Co. or until the losing party in the Appellate Division. First Department exhausts its time to pursue an appeal to the Court of Appeals. They argue that this court should abstain in deference to the New York state courts under Thibodaux, Louisiana Power Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), and/or Colorado River, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800.96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), abstention.
The complaint in Sturm, Ruger Co. was filed in June of 2000, almost a year after the complaints in the instant case. Sought was injunctive relief in the form of an order directing defendants to abate and cease contributing to the alleged public nuisance, but means by which the nuisance could or should be abated were not specified. Sturm, Ruger Co. at 7. Defendants responded by filing a motion to dismiss for failure to state a cause of action, and that motion was heard and decided before answers were filed or discovery was taken. In an opinion issued in August 2001, the New York Supreme Court, County of New York granted defendants motion in its entirety on the ground that, while handguns constitute a statutory and common law public nuisance, the complaint failed to sufficiently allege the defendants' responsibility for that nuisance. Sturm, Ruger Co. at 20, 27, 29. Plaintiff appealed, and the case is currently pending before the Appellate Division, First Department.
This court discussed the New York Supreme Court's decision in Sturm, Ruger Co. and other New York state court decisions in guns litigation in its memorandum in the instant case on the question of standing:
The question of whether, under New York law, a public nuisance may arise out of the manufacture and distribution of handguns that are unlawfully possessed and used in New York remains open. The highest court in the state of New York has not spoken on the matter. In considering a claim against gun manufacturers and distributors, the Supreme Court of New York, New York County, found that, although "[t]here can be no dispute that the unlawful use of handguns constitutes a public nuisance," plaintiffs had failed to allege facts that "would demonstrate that defendants are somehow contributing to the handgun nuisance." People of the State of New York v. Sturm, Ruger Company, Index No. 402586/00, at 20, 27 (N.Y.Sup.Ct. Aug. 10, 2001). The court left open the possibility that such a showing might "become possible as further [Bureau of Alcohol, Tobacco, and Firearms] BATF investigations provide more information about the manufacture, sale and eventual unlawful use of handguns." Id. at 27.
The New York State Court of Appeals has not ruled on the question of whether gun manufacturers' and distributors' conduct in the marketing and distribution of handguns constitutes a public nuisance. It has considered whether gun manufacturers owe a duty to individual victims of gun violence to exercise reasonable care in the marketing and distribution of the handguns they manufacture. Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001). While the Court of Appeals ultimately found that no such duty existed on the facts of the case before it, it recognized that a duty might be established in a future case where a more direct causal link between the conduct of the manufacturers and the injury suffered by a plaintiff could be demonstrated. Id. at 233-34, 238, 242, 727 N.Y.S.2d 7, 750 N.E.2d 1055.
It is significant that BATF will be supplying data to the parties in the present case not previously available. NAACP v. Acusport, 210 F.R.D. 268 (E.D.N.Y. 2002). This data and expert evidence based upon it may well provide whatever evidence was lacking in People of the State of New York v. Sturm, Ruger Company, Index No. 402586/00, at 20, 27 (N.Y.Sup.Ct. Aug. 10, 2001), or Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001).Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 454-455 (E.D.N.Y. 2002).
B. Law
Abstention is a narrow doctrine, an exception to the rule that federal courts must decide justiciable cases properly before them. "Abdication of the obligation to decide cases can be justified under [the abstention] doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (internal quotation and citation omitted). The decision of the court to abstain or not is discretionary, rooted in the power of a court sitting in equity to decline jurisdiction in exceptional circumstance. See,e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 717-19, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Abstention is warranted only in a limited number of specified circumstances; defendants assert that both the Thibodaux and Colorado River exceptions to a federal court's duty to exercise its jurisdiction are appropriate in the instant case.
Under the Thibodaux abstention exception, a court may exercise its discretion to abstain in diversity cases "where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River, 424 U.S. at 814. The Supreme Court's decision in Thibodaux, in light of its decision in Allegheny Country v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959) (handed down the same day), is best read to mean that federal courts should abstain only if "there is uncertain state law and an important state interest that is intimately involved with the government's sovereign prerogative." Erwin Chemerinsky, Federal Jurisdiction 752 (3rd ed. 1999) (emphasis in original) (internal quotations omitted); Smith v. Metro. Prop. Liab. Ins. Co., 629 F.2d 757, 760 (2d Cir. 1980).
Colorado River abstention allows the federal court to abstain in exceptional circumstances in order to avoid duplicative litigation and waste of federal judicial resources. A court should consider a number of factors in deciding whether to abstain in the face of parallel proceedings in state court: "(1) whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiff's federal rights."Woodford v. Cmty. Action Agency of Greene County, 239 F.3d 517, 522 (2d Cir. 2001) (internal citations omitted); Colorado River, 424 U.S. at 818-19. This analysis is "heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
C. Application of Law to Facts
Thibodaux abstention is not appropriate in the present case. The application of public nuisance law to the conduct of gun manufacturers and distributors is an important question of state law, and one that the New York state courts are currently considering. However, the standard to be applied in cases invoking New York public nuisance law is well-established. See, e.g., Copart Indus., Inc. v. Consol. Edison Co. of New York, 362 N.E.2d 968 (N.Y. 1977); Leo v. Gen. Elec. Co., 538 N.Y.S.2d 844, 846 (N.Y.App.Div. 1989); Graceland Corp. v. Consol. Laundries Corp., 180 N.Y.S.2d 644 (N.Y.App.Div. 1958); see also, e.g.,Prosser, Wade, and Schwartz's Torts, 802 et. seq. (10th ed. 2000); 66 C.J.S. Nuisances § 65 (Westlaw 2002). In addition, as already discussed in this court's opinion on standing in the instant case, the New York courts have spoken on public nuisance law in guns litigation and on assessing the connection between an alleged public nuisance and the conduct of gun manufacturers and distributers. See Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 454-455 (E.D.N.Y. 2002). This court will have more than ample legal guidance in reaching a decision here.
The second branch of the Thibodaux abstention exception is likewise not satisfied. The interest involved, protecting the public health and safety from threats caused by the manner in which handguns are manufactured and distributed, is not solely a matter of state concern; there is substantial federal regulation in this area. Gun regulation is a matter lying far from solely within a state's sovereign prerogative.
Colorado River abstention is also not appropriate in the present case. First, these proceedings in federal court are not parallel to or duplicative of the state court proceedings in Sturm, Ruger Co. A decision affirming or reversing the New York Supreme Court's decision on the motion to dismiss in Sturm, Ruger Co. would likely have little, if any, impact on the instant case. More data from BATF has been made available to the parties for expert analysis in this case than has been or is likely to be available in the state case, a factor specifically noted by the state courts as one which could change their analysis significantly. The instant case involves a private rather than a public plaintiff and therefore a different legal standard, and the set of defendants here is not identical to the state defendants.
Although state law provides the rule of decision and no rights under federal law are at issue, all other factors weigh heavily againstColorado River abstention. Staying this case would result in senseless piecemeal and prolonged litigation. The federal complaints were filed almost a year before the state action was brought. The state defendants' motion to dismiss was granted at a preliminary stage of the proceedings, while the present case is little more than a month from trial and extensive discovery and motion practice have taken place. No single res is at issue, and a federal forum is no more or less inconvenient for the parties. Given the much more advanced stage of this litigation and the resources expended by the parties, their counsel and experts, the Bureau of Alcohol, Tobacco and Firearms, and the court, postponing resolution in the instant case until the state case is resolved would be virtually pointless and a waste of federal and state judicial resources. Cf. diLeo v. Greenfield, 541 F.2d 949, 954 (2d Cir. 1976) ("[E]specially in light of the time already consumed in this litigation, it is proper that we should reach the merits." (internal citations omitted)).
The exceptional circumstances necessary to justify entering an interim order of stay in deference to state court proceedings are not present in this case. Defendants' motion is therefore denied.
III. Defendants' Motion for a Jury Trial
This court advised the parties in a hearing in September 2002 that it was considering using an advisory jury to consult on the question of liability of the defendants and. if liability is found. on the scope of the injunctive relief necessary to abate the nuisance. See Transcript of Conference of Sept. 9, 2002, at 44-45, Nat. Ass'n for the Advancement of Colored People v. American Arms, Inc. (No. 99 CV 3999), Nat. Ass'n for the Advancement of Colored People v. Acusport Corp. (No. 99 CV 7037) (E.D.N.Y. 2002). The parties were requested to submit briefs if they believed they were entitled to a trial by jury or desired a bench trial.Id. at 45. It was further suggested that parties brief the procedures for and use of an advisory jury generally. Id.
No briefs or objections were received, and an order was issued in October 2002 setting the case for trial with an advisory jury. Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 226 F. Supp.2d 391 (E.D.N.Y. 2002). Subsequently a number of defendants submitted answers to the Fifth Amended Complaint containing a demand for a jury trial. Certain manufacturer defendants now move for a jury trial, which plaintiff opposes. Because the question of defendants' right to a jury trial has already been discussed extensively in this court's order setting the case for trial with an advisory jury, 226 F. Supp.2d 391, the issue will be reviewed only in brief here.
Defendants assert that they have a constitutional right to a jury trial based on the legal nature of the issues presented and the relief sought, but raise no arguments not already addressed. See, e.g., U.S. Const. amend. VII (preserving the right to a jury trial in suits analogous to eighteenth century suits at common law; not applicable to suits analogous to equity cases); Fed.R.Civ.P. 38(a); Tull v. United States, 481 U.S. 412, 417-18, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) ("To determine whether a statutory action is more similar to cases that were tried in courts of law than to suits tried in courts of equity or admiralty, the Court must examine both the nature of the action and of the remedy sought."). Defendants' contentions are misguided; neither the claim presented nor the relief requested in the instant case are legal in nature.
It is well settled that nuisance claims seeking solely injunctive relief are equitable in nature. Cases and authorities cited by the defendant for the proposition that nuisance claims are historically legal are nuisance claims where money damages were sought in addition to injunctive relief or cases where the legal issue presented was not in actuality one of public nuisance. See, e.g., Hudson v. Caryl, 44 N.Y. 553 (1871); 3 William Blackstone, Commentaries on the Laws of England 220-22 (1765-69); William Draper Lewis, Injunctions Against Nuisances and the Rule Requiring the Plaintiff to Establish His Right at Law, 56 U. Pa. L. Rev. 289 (1908); Note, Trial by Jury in Suits to Enjoin Nuisances, 25 Colum. L. Rev. 641 (1925). Plaintiff does not seek damages, but exclusively equitable relief. Damages are mentioned once in the Fifth Amended Complaint in the boilerplate language at the conclusion of the Complaint. Fifth Amended Complaint at 75. Whether or not this is an oversight, the court gives no weight to this demand for money damages and has no intention of awarding "damages". These actions have been proceeding since their commencement on the premise that plaintiff seeks an injunction to abate the public nuisance allegedly caused by the conduct of gun manufacturers and distributors in the manufacture, sale. and distribution of handguns. Money damages are not now and have never been a relevant part of the case.
Defendants further argue that a claim that. such as plaintiffs, includes a request for funds to abate the nuisance is legal in nature and must be tried to a jury under the Seventh Amendment. Almost all injunctive relief will require some expenditure of funds by a defendant in order to comply with the terms of the injunction; it is important to examine the nature of the expenditure requested.
Defendants rely primarily on In re Acushnet River New Bedford Harbor Proceedmnns re Alleged PCB Pollution, a case in the First Circuit in which the Commonwealth of Massachusetts sought recovery of expenses already incurred in cleaning up pollution. 712 F. Supp. 994 (D.Mass. 1989). Given these circumstances, the court not unreasonably concluded that labeling such relief equitable would leave "little . . . left in the realm of compensatory damages." Id. at 1002. The other cases cited by defendants in support of this proposition are primarily class actions where funds for medical monitoring eventually to be paid essentially as compensation to individual plaintiffs were sought. See Barnes v. Am. Tobacco Co., 989 F. Supp. 661 (E.D.Pa. 1997); Arch v. Am. Tobacco Co., 175 F.R.D. 469 (E.D.Pa. 1997); Smith v. Brown Williamson Tobacco Corp., 174 F.R.D. 90 (W.D.Mo. 1997); Jaffee v. United States, 592 F.2d 712 (3rd Cir. 1979). Such situations as these are closely analogous to suits for traditional tort damages — money is to be paid directly to specific individuals in compensation for past or future harm resulting from defendants's conduct.
These cases are not analogous to the relief sought by NAACP in the instant case, where any funds sought are preventative and ancillary — and the court has no intention to award them as "damages". The NAACP does not seek compensation for injury that it has already incurred or funds to be paid out in the future to individuals or to itself as compensation for harm that does not manifest itself until later. Primarily sought are restrictions on the marketing and distribution practices of handgun manufacturers and distributers. If the harm alleged by plaintiffs is shown to be caused by the practices of the defendants; it is restrictions on marketing practices that must be designed to prevent the harm from continuing to occur in the future. As was stated in the opinion on standing in this case:
Accepting as true plaintiff's assertions that defendants' conduct in their methods of marketing and distributing handguns leads to the proliferation of weapons in underground markets and their use in crime, the injunctive relief requested would reduce gun violence generally and would have a particular impact on the New York African American communities which it disproportionately affects.Nat. Ass'n for the Advancement of Colored People v. Acusport Corp., 210 F.R.D. 446, 461 (E.D.N.Y. 2002).
The possible payment of funds to insure that the terms of the injunction are implemented does not convert this equitable claim to one legal in nature or necessitate a jury trial.
Defendants are not entitled to a jury trial as a matter of constitutional right, and their motion is therefore denied. As noted in the court's oral discussion with the parties, the jury selection and control process will comport with normal practice in jury right trials so that any appeal will not necessarily result in the necessity for a retrial should the appellate court hold that a jury trial as of right exists. No contrary ruling authority from this circuit or the Supreme Court has been proffered by the parties.
IV. Conclusion
Defendants' motions for an interim order of stay and for a jury trial are denied for the reasons stated on the record at the hearing held on September 9, 2002 and in this memorandum and order.
SO ORDERED.