3 JAMES PARSONS, INDIVIDUALLY AND Case No.: 2:19-cv-01189-APG-EJY AS SPECIAL ADMINISTRATOR OF THE 4 ESTATE OF CAROLYN LEE PARSONS, et Amended Order Certifying Questions to al., the Supreme Court of Nevada 5 Plaintiffs 6 v. 7 COLT’S MANUFACTURING COMPANY, 8 LLC, et al.,
9 Defendants
10 I respectfully certify to the Supreme Court of Nevada the following two questions of law 11 that may be determinative of matters before me and as to which there is no clearly controlling 12 precedent in the decisions of the Supreme Court of Nevada or the Nevada Court of Appeals: 13 Under Nevada law, can a plaintiff assert a negligence per se claim predicated on violations of criminal federal and state machine gun prohibitions absent evidence of 14 legislative intent to impose civil liability?
15 Does a plaintiff asserting a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions 16 have “a cause of action against the manufacturer or distributor of any firearm . . . merely because the firearm or ammunition was capable of causing serious injury, damage or 17 death, was discharged and proximately caused serious injury, damage or death[,]” under Nevada Revised Statutes § 41.131? 18 Does Nevada Revised Statutes § 41.131 allow a wrongful death claim premised on 19 allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions because the statute is “declaratory and not in derogation of the 20 common law”?
21 / / / /
22 / / / /
23 / / / / 2 Carrie Parsons was killed in the October 1, 2017 mass shooting in Las Vegas. Her 3 parents, plaintiffs James Parsons and Ann-Marie Parsons, sue the manufacturers1 4 (Manufacturers) and dealers2 (Dealers) that made and sold the AR-15 rifles used in the shooting. 5 The Parsons filed suit in the Eighth Judicial District Court for Clark County, Nevada on
6 July 2, 2019, asserting claims for wrongful death, negligence per se, and negligent entrustment. 7 The defendants removed the case to the United States District Court for the District of Nevada. 8 The defendants moved to dismiss the Parsons’ complaint, arguing that their claims are barred by 9 the Protection of Lawful Commerce in Arms Act (PLCAA), Nevada Revised Statutes (NRS) 10 § 41.131, and common-law causation principles. I originally dismissed the Parsons’ negligent 11 entrustment and negligence per se claims without leave to amend because they failed to state a 12 cognizable claim under the PLCAA and Nevada common law. I denied the motion to dismiss 13 the wrongful death claim, concluding that as pleaded it was not barred by the PLCAA or 14 common-law causation principles. Id.
15 A. Negligence Per Se 16 I originally dismissed the Parsons’ negligence per se claims because federal courts sitting 17 in Nevada have applied a rule announced in two Supreme Court of Nevada decisions that the 18 violation of a penal statute is not negligence per se absent evidence of legislative intent to impose 19 civil liability. See Hinegardner v. Marcor Resorts, L.P.V., 844 P.2d 800, 803 (Nev. 1992); Bell v. 20 Alpha Tau Omega Fraternity, Eta Epsilon Chapter, 642 P.2d 161, 162 (Nev. 1982). I later 21
1 Colt’s Manufacturing Company LLC, Colt Defense LLC, Daniel Defense Inc., Patriot 22 Ordnance Factory, FN America, Noveske Rifleworks LLC, Christensen Arms, Lewis Machine & Tool Company, and LWRC International LLC. 23 2 Discount Firearms and Ammo LLC, Sportsman’s Warehouse, and Guns and Guitars Inc. 1 reconsidered my order dismissing the Parsons’ negligence per se claims because: (1) the 2 Supreme Court of Nevada’s decisions could be read to support a presumption that a violation of 3 a penal statute is not negligent per se absent legislative intent or alternatively a presumption that 4 a violation of a penal statute is negligence per se absent legislative intent to the contrary; and 5 (2) the prior decisions do not address the issue outside the context of alcohol laws. I decided to
6 certify an additional question to the Supreme Court of Nevada because: (1) the question presents 7 significant issues with important public policy ramifications for Nevada; and (2) certification of 8 this dispositive question alongside the other questions will save time and judicial resources. So I 9 certify the above question regarding under what circumstances a violation of a penal statute 10 constitutes negligence per se. 11 B. NRS § 41.131 12 The defendants argued that the Parsons’ wrongful death claim is barred by NRS § 41.131, 13 which states that “[n]o person has a cause of action against the manufacturer or distributor of any 14 firearm or ammunition merely because the firearm or ammunition was capable of causing serious
15 injury, damage or death, was discharged and proximately caused serious injury, damage or 16 death.” The statute further states that it is “declaratory and not in derogation of the common 17 law” and includes an exception for actions based on production or design defects. Id. 18 The defendants argue this statute bars the wrongful death claim because the Parsons do 19 not allege that the AR-15s used in the October 1 shooting were defective. The Parsons respond 20 that their suit falls outside of § 41.131’s reach because their central allegation is that the 21 defendants violated federal and Nevada law by manufacturing and selling illegal machine guns. 22 Thus, they contend, they are not suing the defendants “merely” because the firearms were 23 capable of causing—and caused—their daughter’s death. 1 The text and legislative history of § 41.131 are capable of multiple reasonable 2 interpretations. The statute was enacted in 1985, but Nevada courts have yet to interpret it. The 3 parties have not identified, and I have not found, a federal or state decision that has even cited it. 4 This case presents important public policy concerns that should be addressed by the Nevada 5 court. I am particularly concerned by the defendants’ concession in oral argument that under
6 their interpretation § 41.131 would immunize even a defendant that manufactured and sold 7 Tommy guns or M-16 rifles to civilians. The Supreme Court of Nevada should be allowed to 8 interpret § 41.131 on first impression. So I denied the defendants’ motion to dismiss on this 9 ground without prejudice to refiling it, and I certify the above questions to the Supreme Court of 10 Nevada. 13 Plaintiffs: James Parsons, individually and as Special Administrator of the Estate of Carolyn Lee 14 Parsons; Ann-Marie Parsons.
15 Defendants: Colt’s Manufacturing Company LLC; Colt Defense LLC; Daniel Defense Inc.; 16 Patriot Ordnance Factory; FN America; Noveske Rifleworks LLC; Christensen Arms; Lewis 17 Machine & Tool Company; LWRC International LLC; Discount Firearms and Ammo LLC; 18 DF&A Holdings, LLC; Maverick Investments, LP; Sportsman’s Warehouse; Guns and Guitars 19 Inc. 20 Because the defendants argue that § 41.131 mandates dismissal of this lawsuit, I 21 designate the plaintiffs as the appellants. 22 / / / / 23 / / / / 2 Counsel for the plaintiffs/appellants: 3 Matthew L. Sharp Matthew L. Sharp, Ltd. 4 432 Ridge St. Reno, NV 89501 5 Joshua David Koskoff 6 Koskoff, Koskoff, & Bieder, PC 350 Fairfield Ave. 7 Bridgeport, CT 06604
8 Richard Friedman Friedman Rubin 9 1126 Highland Ave.
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3 JAMES PARSONS, INDIVIDUALLY AND Case No.: 2:19-cv-01189-APG-EJY AS SPECIAL ADMINISTRATOR OF THE 4 ESTATE OF CAROLYN LEE PARSONS, et Amended Order Certifying Questions to al., the Supreme Court of Nevada 5 Plaintiffs 6 v. 7 COLT’S MANUFACTURING COMPANY, 8 LLC, et al.,
9 Defendants
10 I respectfully certify to the Supreme Court of Nevada the following two questions of law 11 that may be determinative of matters before me and as to which there is no clearly controlling 12 precedent in the decisions of the Supreme Court of Nevada or the Nevada Court of Appeals: 13 Under Nevada law, can a plaintiff assert a negligence per se claim predicated on violations of criminal federal and state machine gun prohibitions absent evidence of 14 legislative intent to impose civil liability?
15 Does a plaintiff asserting a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions 16 have “a cause of action against the manufacturer or distributor of any firearm . . . merely because the firearm or ammunition was capable of causing serious injury, damage or 17 death, was discharged and proximately caused serious injury, damage or death[,]” under Nevada Revised Statutes § 41.131? 18 Does Nevada Revised Statutes § 41.131 allow a wrongful death claim premised on 19 allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions because the statute is “declaratory and not in derogation of the 20 common law”?
21 / / / /
22 / / / /
23 / / / / 2 Carrie Parsons was killed in the October 1, 2017 mass shooting in Las Vegas. Her 3 parents, plaintiffs James Parsons and Ann-Marie Parsons, sue the manufacturers1 4 (Manufacturers) and dealers2 (Dealers) that made and sold the AR-15 rifles used in the shooting. 5 The Parsons filed suit in the Eighth Judicial District Court for Clark County, Nevada on
6 July 2, 2019, asserting claims for wrongful death, negligence per se, and negligent entrustment. 7 The defendants removed the case to the United States District Court for the District of Nevada. 8 The defendants moved to dismiss the Parsons’ complaint, arguing that their claims are barred by 9 the Protection of Lawful Commerce in Arms Act (PLCAA), Nevada Revised Statutes (NRS) 10 § 41.131, and common-law causation principles. I originally dismissed the Parsons’ negligent 11 entrustment and negligence per se claims without leave to amend because they failed to state a 12 cognizable claim under the PLCAA and Nevada common law. I denied the motion to dismiss 13 the wrongful death claim, concluding that as pleaded it was not barred by the PLCAA or 14 common-law causation principles. Id.
15 A. Negligence Per Se 16 I originally dismissed the Parsons’ negligence per se claims because federal courts sitting 17 in Nevada have applied a rule announced in two Supreme Court of Nevada decisions that the 18 violation of a penal statute is not negligence per se absent evidence of legislative intent to impose 19 civil liability. See Hinegardner v. Marcor Resorts, L.P.V., 844 P.2d 800, 803 (Nev. 1992); Bell v. 20 Alpha Tau Omega Fraternity, Eta Epsilon Chapter, 642 P.2d 161, 162 (Nev. 1982). I later 21
1 Colt’s Manufacturing Company LLC, Colt Defense LLC, Daniel Defense Inc., Patriot 22 Ordnance Factory, FN America, Noveske Rifleworks LLC, Christensen Arms, Lewis Machine & Tool Company, and LWRC International LLC. 23 2 Discount Firearms and Ammo LLC, Sportsman’s Warehouse, and Guns and Guitars Inc. 1 reconsidered my order dismissing the Parsons’ negligence per se claims because: (1) the 2 Supreme Court of Nevada’s decisions could be read to support a presumption that a violation of 3 a penal statute is not negligent per se absent legislative intent or alternatively a presumption that 4 a violation of a penal statute is negligence per se absent legislative intent to the contrary; and 5 (2) the prior decisions do not address the issue outside the context of alcohol laws. I decided to
6 certify an additional question to the Supreme Court of Nevada because: (1) the question presents 7 significant issues with important public policy ramifications for Nevada; and (2) certification of 8 this dispositive question alongside the other questions will save time and judicial resources. So I 9 certify the above question regarding under what circumstances a violation of a penal statute 10 constitutes negligence per se. 11 B. NRS § 41.131 12 The defendants argued that the Parsons’ wrongful death claim is barred by NRS § 41.131, 13 which states that “[n]o person has a cause of action against the manufacturer or distributor of any 14 firearm or ammunition merely because the firearm or ammunition was capable of causing serious
15 injury, damage or death, was discharged and proximately caused serious injury, damage or 16 death.” The statute further states that it is “declaratory and not in derogation of the common 17 law” and includes an exception for actions based on production or design defects. Id. 18 The defendants argue this statute bars the wrongful death claim because the Parsons do 19 not allege that the AR-15s used in the October 1 shooting were defective. The Parsons respond 20 that their suit falls outside of § 41.131’s reach because their central allegation is that the 21 defendants violated federal and Nevada law by manufacturing and selling illegal machine guns. 22 Thus, they contend, they are not suing the defendants “merely” because the firearms were 23 capable of causing—and caused—their daughter’s death. 1 The text and legislative history of § 41.131 are capable of multiple reasonable 2 interpretations. The statute was enacted in 1985, but Nevada courts have yet to interpret it. The 3 parties have not identified, and I have not found, a federal or state decision that has even cited it. 4 This case presents important public policy concerns that should be addressed by the Nevada 5 court. I am particularly concerned by the defendants’ concession in oral argument that under
6 their interpretation § 41.131 would immunize even a defendant that manufactured and sold 7 Tommy guns or M-16 rifles to civilians. The Supreme Court of Nevada should be allowed to 8 interpret § 41.131 on first impression. So I denied the defendants’ motion to dismiss on this 9 ground without prejudice to refiling it, and I certify the above questions to the Supreme Court of 10 Nevada. 13 Plaintiffs: James Parsons, individually and as Special Administrator of the Estate of Carolyn Lee 14 Parsons; Ann-Marie Parsons.
15 Defendants: Colt’s Manufacturing Company LLC; Colt Defense LLC; Daniel Defense Inc.; 16 Patriot Ordnance Factory; FN America; Noveske Rifleworks LLC; Christensen Arms; Lewis 17 Machine & Tool Company; LWRC International LLC; Discount Firearms and Ammo LLC; 18 DF&A Holdings, LLC; Maverick Investments, LP; Sportsman’s Warehouse; Guns and Guitars 19 Inc. 20 Because the defendants argue that § 41.131 mandates dismissal of this lawsuit, I 21 designate the plaintiffs as the appellants. 22 / / / / 23 / / / / 2 Counsel for the plaintiffs/appellants: 3 Matthew L. Sharp Matthew L. Sharp, Ltd. 4 432 Ridge St. Reno, NV 89501 5 Joshua David Koskoff 6 Koskoff, Koskoff, & Bieder, PC 350 Fairfield Ave. 7 Bridgeport, CT 06604
8 Richard Friedman Friedman Rubin 9 1126 Highland Ave. Bremerton, WA 98337 10 Counsel for defendants/respondents Colt’s Manufacturing Company, LLC, Colt Defense LLC, 11 Patriot Ordnance Factory, Lewis Machine & Tool Company, and LWRC International, LLC:
12 Jay Joseph Schuttert and Alexandria Layton Evans Fears & Schuttert LLP 13 2300 W. Sahara Avenue Suite 950 14 Las Vegas, NV 89102
15 John Renzulli, Christopher Renzulli, and Scott Charles Allan Renzulli Law Firm, LLP 16 One North Broadway, Suite 1005 White Plains, NY 10601 17 Counsel for defendants/respondents FN America: 18 Jessica Chong, Mary Bacon, and John Mowbray 19 Spencer Fane LLP 300 S. Fourth Street 20 Suite 950 Las Vegas, NV 89101 21 Camden R. Webb and Robert C. Van Arnam 22 Williams Mullen 301 Fayetteville St., Ste. 1700 23 Raleigh, NC 27601 1 Justin S. Feinman and Turner A. Broughton Williams Mullen 2 200 South 10th Street 16th Floor Richmond, VA 23219 3 Counsel for defendants/respondents Christensen Arms: 4 Jay Joseph Schuttert and Alexandria Layton 5 Evans Fears & Schuttert LLP 2300 W. Sahara Avenue 6 Suite 950 Las Vegas, NV 89102 7 Bryon J. Benevento 8 Dorsey & Whitney, LLP 111 S. Main Street, Suite 2100 9 Salt Lake City, UT 84111-2176
10 Counsel for defendants/respondents Daniel Defense, Inc. and Sportsman’s Warehouse:
11 Patrick Byrne and V. R. Bohman Snell & Wilmer L.L.P. 12 3883 Howard Hughes Pkwy., Ste. 1100 Las Vegas, NV 89169 13 Counsel for defendant/respondent Noveske Rifleworks, LLC: 14 Loren Young 15 Lincoln, Gustafson & Cercos 3960 Howard Hughes Parkway, Suite 200 16 Las Vegas, NV 89169
17 Anthony Pisciotti, Ryan Erdreich, and Danny C. Lallis Pisciotti Malsch 18 30 Columbia Turnpike, Suite 205 Florham Park, NJ 07932 19 Counsel for defendants/respondents Guns & Guitars, Inc.: 20 Michael Nunez 21 Murchison & Cumming, LLP 350 S. Rampart Blvd., Suite 320 22 Las Vegas, NV 89145
23 / / / / 1 James B. Vogts Swanson, Martin & Bell LLP 2 330 N. Wabash, Suite 3300 Chicago, IL 60611 3 Counsel for defendants/respondents Discount Firearms and Ammo, LLC, DF&A Holdings, LLC, Maverick Investments, LP: 5 Ismail Amin and Jessica Guerra The Amin Law Group, Ltd. 6 3753 Howard Hughes Parkway, Suite 200 Las Vegas, NV 89169 4 Christopher M. Chiafullo 8 The Chiafullo Group, LLC 244 Fifth Avenue, Suite 1960 9 New York, NY 10001 IV. ANY OTHER MATTERS THE CERTIFYING COURT DEEMS RELEVANT TO ll A DETERMINATION OF THE QUESTIONS CERTIFIED 12 I defer to the Supreme Court of Nevada to decide whether it requires any other 13]/information to answer the certified questions. I do not intend my framing of the questions to limit the Supreme Court of Nevada’s consideration of the issues. 16 I THEREFORE ORDER the Clerk of Court to forward this Order under official seal to 17||the Supreme Court of the State of Nevada, 201 South Carson Street, Suite 201, Carson City, 18}| Nevada 89701-4702. 19 DATED this 8th day of May, 2020. 20 21 ANDREW P. GORDON 09 UNITED STATES DISTRICT JUDGE