Tannerite Sports, LLC v. Nbcuniversal Media LLC

135 F. Supp. 3d 219, 43 Media L. Rep. (BNA) 3114, 2015 U.S. Dist. LEXIS 134862, 2015 WL 5783811
District Court, S.D. New York·Decided October 1, 2015·No. No. 15-cv-2343 (SAS)·Published·Cited by 17 cases

Opinion

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

Tannerite Sports, LLC (“Tannerite”) seeks injunctive and monetary relief for economic and reputational injuries that it [225] allegedly suffered as result of Statements made by NBCUniversal News Group, a Division of NBCUniversal Media, LLC (“NBCU”) and WLEX Communications, LLC (“WLEX”) (collectively, “defendants”) in broadcast and Internet news reports published between March 23 and March 24, 2015. WLEX now moves to dismiss the Amended Complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure (“Rule”) 12(b)(2) and NBCU moves to dismiss the Amended Complaint for failure to state a claim under Rule 12(b)(6).

II. BACKGROUND

A. Facts1

1. Relevant Parties

Tannerite is an Oregon-based company that “manufacturers, sells, and distributes Tannerite-brand binary (two-component) exploding, rifle targets.”2 Daniel J. Tanner is the founder and President of Tannerite, as well as the inventor and patent owner of Tannerite-brand binary exploding rifle targets.3 Marketed for use. at shooting ranges, Tannerite targets are designed to detonate upon the impact of a bullet fired from high-powered, center-fire rifles-.4 The targets consist of separately packaged ammonium nitrate and pyrotechnic grade aluminum powder which, when combined, ..provide shooters with audibly and visually exciting acknowledgments of good marksmanship.5

NBCU is a limited liability corporation incorporated in Delaware.6 NBC News Digital LLC is a Delaware corporation registered to do business in New York. NBC News Digital’s portfolio includes “NBCNews.com, msnbc.com, NBCPoli-tics.com, Nightly News, Meet the-Press, Dateline, Newsvine, Breaking news, and the existing apps and digital extensions of these respective properties.”7

WLEX is a limited liability company incorporated in South Carolina and headquartered in Lexington, Kentucky that operates television 'station WLEXTV.8 WLEX-TV broadcasts reach portions of Kentucky, Indiana, and Ohio (the “broadcast zone”).9- WLEX-TV receives some of its programming content from NBCU through ari Affiliation Agreement that allows it to- air NBCU’s programming -in its [226] broadcast zone.10 WLEX also operates LEX18.com, a website publishing news and editorial content.11

2. Tannerite Binary Exploding Rifle Targets

Tannerite binary exploding targets result from the mixture of ammonium nitrate and aluminum powder, which the company sells as “kits” containing the chemicals in two separate and sealed packages.12 The ammonium nitrate component is comprised of an oxidizer (nitrate) and a fuel (ammonia):13 The aluminum component “can be considered a catalyst which provides a lower-energy pathway to initiate a detonation.”14 As designed, when the mixture meets the impact of a bullet fired from a high-power rifle, an explosion ensues.15

In its Product Guide, Tannerite provides detailed instructions for the safe use of its products and cautions that the dangers of misuse include serious injury and death.16 The company also urges target purchasers to “mix the targets at the range and shoot them immediately,” and not to “transport, store, or sell the mixed composition” unless certified to do so.17 Tannerite further admonishes customers against using their targets in “non-remote areas” and on surfaces or near objects that can produce shrapnel.18 The Product Guide also explains that:

A properly formulated and mixed binary rifle target will provide a loud report; will consistently detonate on bullet impact; will not start fires; and will be safe to handle. The use of impure ammonium nitrate or aluminum, wide variability in ammonium nitrate or aluminum particle sizes, the wrong ratio of aluminum to ammonium nitrate, and poor mixing ■ can lead to targets that may start fires, may be less safe to handle, and may have erratic performance.19

In addition, the Product Guide section titled “A PLEA FOR COMMON SENSE” acknowledges that “there are, however, users doing unwise things with these targets” and warns that “[cjontinued misuse of these targets may result in restrictions in their use.”20 The section concludes: “[t]he future of these targets is in your hands, so please use them properly.”.21

3. NBCU’s Allegedly Defamatory Statements22

On March 23, 2015, NBC News aired a report (“NBCU Report”) on the “Today” show about the potential dangers of exploding rifle targets. In the lead-in to the NBCU Report, reporter Jeff Rossen is shown holding two explosive rifle targets while stating: “right now I am basically holding a bomb in my hand.” Rossen then introduces a series of video clips capturing [227] unusually explosive detonations, explaining that “you’re about to see what can happen when .this gets in the wrong hands.” In one video, a refrigerator explodes and causes a bystander, Jennifer Plank-Greer, to lose a hand due to resulting shrapnel. The NBCU Report further discusses the use of ammonium nitrate — one of the two components of Tannerite targets — by terrorists in the Oklahoma City bombing and in attacks on American soldiers in Afghanistan.

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Tannerite Sports, LLC v. Nbcuniversal Media LLC, 135 F. Supp. 3d 219, 43 Media L. Rep. (BNA) 3114, 2015 U.S. Dist. LEXIS 134862, 2015 WL 5783811 (S.D.N.Y. 2015).

135 F. Supp. 3d 219 (Tannerite Sports, LLC v. Nbcuniversal Media LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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