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Soto v. Bushmaster Firearms Int'l, LLC

United States District Court, D. Connecticut

October 9, 2015

DONNA L. SOTO, ET AL., Plaintiffs,

         As Corrected October 15, 2015.

          For Donna L. Soto, Administratrix of the Estate of Victoria L. Soto, William D. Sherlach, Executor of the Estate of Mary Joy Sherlach, William D. Sherlach, individually, Leonard Pozner, Administrator of the Estate of Noah S. Pozner, Gilles J. Rousseau, Administrator of the Estate of Lauren G. Rousseau, David C. Wheeler, Administrator of the Estate of Benjamin A. Wheeler, Neil Heslin, Co-Administrator of the Estate of Jesse McCord Lewis, Mark Barden, Co-Administrators of the Estate of Daniel G. Barden, Mary D'Avino, Administratrix of the Estate of Rachel M. D'Avino, Natalie Hammond, Nicole Hockley, Co-Administrator of the Estate of Dylan C. Hockley, Scarlett Lewis, Co-Administrator of the Estate of Jesse McCord Lewis, Jacqueline Barden, Co-Administrator of the Estate of Daniel G. Barden, Plaintiffs: Joshua D. Koskoff, LEAD ATTORNEY, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT; Alinor Clemans Sterling, Bridgeport, CT.

         For Remington Arms Company, LLC, also known as, Freedom Group, Inc, also known as, Bushmaster Firearms Int., Inc, also known as, Remington Outdoor Company, Remington Outdoor Company, Inc., also known as, Freedom Group, Inc, Defendants: Andrew A. Lothson, James B. Vogts, LEAD ATTORNEYS, PRO HAC VICE, Swanson, Martin & Bell, LLP, Chicago, IL; Jonathan P. Whitcomb, LEAD ATTORNEY, Matthew C. Wagner, Diserio Martin O'Connor & Castiglioni, LLP, Stamford, CT.

         For Camfour, Inc., Camfour Holding, LLP, also known as, Camfour Holding, Inc., Defendants: Christopher Renzulli, Scott Charles Allan, Renzulli Law Firm, LLP, White Plains, NY.

         For Riverview Sales, Inc., David Laguercia, Defendants: Michael Ryan Patrick, Patrick, LLC, Stamford, CT.


         Robert N. Chatigny, United States District Judge.

         This is an action for damages and injunctive relief arising from the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut, in which twenty children and six adults were killed by a shooter using a Bushmaster AR-15 rifle. The case is brought by or on behalf of victims of the shooting. The defendants are a number of entities and one individual involved in the manufacture, distribution and sale of the rifle. The case was filed in Connecticut Superior Court initially. In response to the state court complaint, two of the defendants removed the case to this Court invoking federal jurisdiction on the basis of diversity of citizenship.[1] The issue addressed in this memorandum is whether the case must be remanded to state court because federal jurisdiction is lacking. For reasons that follow, I conclude that remand is required.

         Defendants contend that this Court has jurisdiction based on the diversity of citizenship statute, 28 U.S.C. § 1332(a)(1), which confers on district courts " original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different states." For diversity jurisdiction to exist, there must be complete diversity between the plaintiffs and the defendants, in other words, no plaintiff can be a citizen of the same state as any of the defendants. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). In this case, all the plaintiffs are citizens of Connecticut; [2] and one of the defendants, Riverview Sales, Inc. (" Riverview" ), is also a Connecticut citizen.[3] Defendants claim that the presence of Riverview may be disregarded for purposes of diversity jurisdiction because Riverview has been fraudulently joined as a defendant.[4]

         Plaintiffs have moved to remand the case on the ground that defendants cannot sustain their heavy burden of establishing fraudulent joinder. The defendants do bear the burden of establishing that federal jurisdiction exists, and the burden is a heavy one. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d Cir. 2004). To establish fraudulent joinder, the defendants " must demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that [the] plaintiff[s] can state a cause of action against the non-diverse defendant in state court." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998). Any doubts must be resolved in favor of remand. See Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013).

         Defendants do not claim that plaintiffs have engaged in outright fraud by joining a non-diverse defendant having no real connection to the case. Indeed, Riverview is alleged to have sold the rifle used in the shooting. They claim, rather, that there is no legal basis for plaintiffs' claims against Riverview because the Protection of Lawful Commerce in Arms Act (" PLCAA" ), 15 U.S.C. § § 7901, et seq., provides Riverview with immunity from this suit. The record establishes that the immunity provided by this statute will also be asserted with regard to the claims against the other defendants.[5]

         The " no possibility" standard used to assess claims of fraudulent joinder aims to identify cases in which it is objectively reasonable for the court to conclude that the plaintiff has improperly sued a non-diverse defendant in order to deprive the other defendants of their right to a federal forum under the removal statute. Said differently, fraudulent joinder exists when it is objectively reasonable to infer that the plaintiff has engaged in a form of litigation abuse. See 14B Wright, Miller & Cooper, Federal Practice & Procedure § 3723 (4th ed.) (noting that fraudulent joinder doctrine tries to avoid " reward[ing] abusive pleading by plaintiffs" ). If there is no possibility a plaintiff can state a cause of action against a non-diverse defendant, then it is objectively reasonable to infer that the plaintiff is guilty of a form of cheating, and remand is an appropriate response to the plaintiff's improper conduct. But if the plaintiff's claim is not precluded as a matter of law - if there is any possibility the plaintiff can state a claim against the non-diverse defendant - an inference that the plaintiff is guilty of improper conduct is unwarranted, and adjudicating the case in federal court would violate the plaintiff's right to choose the forum for the litigation.

         Viewed in light of this purpose, the " no possibility" standard for fraudulent joinder is similar to the Rule 11 standard for identifying instances of litigation abuse for which sanctions should be imposed. Rule 11 seeks to deter frivolous litigation without chilling creative advocacy. See Fed.R.Civ.P. 11 advisory committee's note to 1993 amendment. Thus, the Rule provides that arguments for extensions, modifications, or reversals of existing law or for creation of new law are not sanctionable, provided they are not frivolous. See id. In deciding whether a claim exceeds the limits of permissible partisan advocacy, courts apply a standard of objective reasonableness. See ATSI Communications, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 150 (2d Cir. 2009). Because an " objectively unreasonable" standard may have an inhibiting effect on vigorous advocacy, to the detriment of the effective functioning of the adversarial system, a safe harbor provision gives lawyers an opportunity to withdraw a submission challenged by an adversary. See In re Pennie & Edmonds LLP, 323 F.3d 86, 91 (2d Cir. 2003).

         The analysis under both Rule 11 and fraudulent joinder therefore turns not on how likely a claim is to succeed, but rather on whether the claim is objectively frivolous. See Davis v. Prentiss Properties Ltd., Inc., 66 F.Supp.2d 1112, 1115 (C.D. Cal. 1999) (concluding, based on Rule 11 standard, that " if a diversity-defeating claim is not frivolous, the plaintiff has the right to have it considered by the state court in which it was filed" ). Applying the " no possibility" standard with the restraint characteristic of sanctions determinations ensures that litigants do not withhold claims that could be brought in good faith and in furtherance of the public interest in order to avoid the risk of removal.

         Accordingly, it is necessary to determine whether there is any possibility the plaintiffs in this case can state a claim against Riverview. See Kenneson v. Johnson & Johnson, No. 3:14cv-01184(MPS), 2015 WL 1867768, at *6 (D. Conn. Apr. 23, 2015) (holding that party was not fraudulently joined because claim " appear[ed] to be possible under Connecticut law" and " ha[d] not been foreclosed by controlling authority" ); see also Retirement Prog. for Employees of the Town of Fairfield v. NEPC, LLC, 642 F.Supp.2d 92, 97 (D. Conn. 2009)(holding that party was not fraudulently joined because " [t]he applicability of [the misrepresentation rules in ยง 522 of the Restatement (Second) of Torts] in Connecticut is not clear." ). More specifically, the ...

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