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Summers v. Cabela's Wholesale, Inc.

Superior Court of Delaware

March 29, 2019

LISA SUMMERS, Personal Representative of the Estate of KESHALL ANDERSON, KISHA BAILEY, Individually and as the Legal Guardian of JORDAN DOMINIQUE ROBINSON, JR., a minor, MICHAEL BAILEY, Individually, Plaintiffs,
CABELA'S WHOLESALE, INC., a Nebraska Corporation registered in Delaware, Now Doing Business as CABELA'S WHOLESALE, LLC, a Nebraska Limited Liability Company registered in Delaware, Defendant.

          Submitted: December 10, 2018

         Upon Consideration of Cabela's Motion to Dismiss Plaintiffs' First Amended Complaint, GRANTED.

          Francis G.X. Pileggi, Esq., of Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware; James B. Vogts, Esq. (argued), of Swanson, Martin & Bell LLP, Chicago, Illinois. Attorneys for Defendant.

          Bruce L. Hudson, Esq., of Hudson & Castle Law, LLC, Wilmington, Delaware; Jonathan E. Lowy, Esq. (argued), and Erin C. Davis, Esq., of Brady Center to Prevent Gun Violence, Washington, D.C. Attorneys for Plaintiffs.




         On July 28, 2016, Brilena Hardwick ("Hardwick") purchased a firearm and ammunition from Defendant Cabela's Wholesale, Inc. now doing business as Cabela's Wholesale, LLC ("Cabela's"). Months later, the firearm was used and caused the death of Keshall Anderson ("Anderson") in a drive-by shooting. Plaintiffs Lisa Summers, Kisha Bailey, and Michael Bailey (collectively "Plaintiffs") bring this action either on behalf of the Estate of Anderson, as legal guardian for minor Jordan Dominique Robinson, Jr., or in their individual capacities. They seek damages asserting that Cabela's was negligent in selling the firearm to a straw purchaser in violation of federal and state laws. Cabela's moves to dismiss under Superior Court Civil Rule 12(b)(6), asserting that Plaintiffs fail to state a claim where the clear mandatory provisions under 11 Del. C. § 1448A(d) afford a complete defense in this case. After consideration of the parties' briefings, oral arguments and the record in this case, for the reasons stated below, Cabela's Motion to Dismiss Plaintiffs' First Amended Complaint is GRANTED.


         On September 18, 2016, 19-year-old Anderson became the 18th person that year who died by gun violence in the City of Wilmington.[1] This young woman was caught in the crossfire of a drive-by shooting and killed while walking down the street.[2] After police investigated the shooting, the firearm was traced back to Cabela's. This matter involves the sale of that firearm.

         On July 28, 2016, Hardwick entered the Cabela's store at the Christiana Mall and purchased an Iberia Firearms JCP, .40 caliber Smith & Wesson pistol ("firearm") and a box of ammunition.[3] It is alleged John Kuligowski ("Kuligowski"), Hardwick's boyfriend, drove Hardwick to the store and waited in the parking lot.[4] He did not enter the store nor accompany her. All transactions were conducted by Hardwick. While in the store, Plaintiffs allege that Hardwick "displayed erratic behavior, running up and down the aisles, and remained in regular cell phone communication with Kuligowski through both text messages and phone calls."[5] She selected a firearm and filled out the required paperwork.

         During Hardwick's transaction with Cabela's employee responsible for processing the sale/transfer, she provided valid identification and completed the required forms. This included the Firearms Transaction Record form promulgated by the United States Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives ("Form 4473").[6] While completing the transaction, Cabela's conducted a criminal history background check pursuant to the National Instant Criminal Background Check System ("NICS").[7] The Federal Bureau of Investigation ("FBI") informed Cabela's that Hardwick passed the NICS background check and it could "proceed" with the sale of the firearm.[8] She paid for the firearm and one box of ammunition. It is alleged that she then gave the gun to Kuligowski.

         Kuligowski is a convicted felon and a person prohibited from purchasing or possessing a firearm due to his criminal record.[9] He neither purchased the firearm nor used it in the fatal shooting of Anderson. His role is that he served as the alleged conduit that placed the weapon into the criminal market that allowed two juveniles to get their hands on the gun that killed Anderson.[10]

         On September 21, 2018, Plaintiffs filed their First Amended Complaint.[11]Plaintiffs seek damages and allege claims of negligence per se, negligence, negligent entrustment, negligent training and supervision, public nuisance, wrongful death, and survivorship against Cabela's. On October 1, 2018, Cabela's filed this Motion to Dismiss under Superior Court Rule 12(b)(6). All responses and replies were filed by November 30, 2018. The Court held oral arguments on December 10, 2018. The matter is ripe for review.


         On a motion to dismiss under Rule 12(b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted."[12] All well-pleaded allegations in the complaint must be accepted as true for purposes of a Rule 12(b)(6) motion.[13] Even vague allegations may be well-pleaded if they give the opposing party notice of the claim.[14] Additionally, all reasonable inferences must be drawn in favor of the non-moving party.[15] Although reasonable inferences are drawn in favor of the non-moving party, the Court will not "accept conclusory allegations unsupported by specific facts" and declines "to draw unreasonable inferences in favor of the non-moving party."[16] A motion to dismiss must be denied if "a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[17]


         Cabela's argues that 11 Del. C. § 1448A(d) affords a complete defense to any cause of action for damages that relates to the lawful transfer of a firearm.[18] It maintains the complete defense is applicable where it performed a compliant transfer of the firearm to Hardwick by conducting a NICS background check and receiving a "proceed" response for the sale. Cabela's further argues that Plaintiffs failed to allege any facts that Cabela's provided false information for the calculated purpose of helping her purchase the firearm illegally.[19] Therefore, under § 1448A(d), because Plaintiffs' claims seek damages, they must be dismissed for failure to state a claim under Rule 12(b)(6). Further, on the public nuisance claim, Cabela's argues the same 12(b)(6) remedy applies where, under Delaware law, public nuisance claims are limited to land-use situations and have not been recognized for products.[20]

         Plaintiffs argue that Cabela's failed to comply with § 1448A(a) and cannot be afforded the complete defense provided in §1448A(d).[21] Specifically, Plaintiffs alleged that Hardwick provided a false address on the Form 4473, [22] and that she further provided a "false statement when she certified that she was the actual buyer/transferee on Form 4473."[23] They argue that Cabela's thus violated 28 C.F.R. § 25.11(b)(1) by knowingly providing this incorrect information to the NICS system about the actual purchaser when it provided Hardwick's name, despite the "red flags" that she was a straw purchaser.[24]

         Plaintiffs also raise constitutional challenges. They argue that 11 Del. C. § 1448A must be narrowly construed because, according to Cabela's, it "abrogates some common law tort rights depriving some gun violence victims of their rights to recover from gun dealers for damages caused by their negligent and unlawful acts."[25]Plaintiffs argue that Cabela's interpretation of this statute is inconsistent with Delaware's legislative intent, by asserting that the intent of §§ 1448A and 1448B was to extend background check requirements to gun sales by unlicensed persons.[26]Plaintiffs assert that Cabela's interpretation should be rejected under the principle of constitutional avoidance.[27]

         Lastly, Plaintiffs argue, in the alternative, that if 11 Del. C. § 1448A(d) bars their claims, that this Court must declare the statute unconstitutional, namely under Article I, § 9 of the Delaware Constitution (Protection of the Right to a Remedy for Injury), and the Due Process and the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.[28] In response, Cabela's maintains that the statutory provisions of § 1448A(d) pass constitutional muster.[29]

         This is a matter of first impression for the Court.


         I. Gun Control in Delaware

         Cabela's is a federal firearm licensee subject to both state and federal statutes and regulations that deal with the sale and transfer of firearms.[30] Federal and state laws contain nuanced provisions regarding the compliance requirements imposed upon federal firearm licensees such as Cabela's when it executes a sale/transfer, and to what extent it may avail itself to defenses when faced with claims seeking damages as a result of such transfers.

         Various courts have interpreted the federal law, in particular the Protection of Lawful Commerce in Arms Act ("PLCAA").[31] The PLCAA is not at issue in this case and is offered only to give context as to how other courts have considered similar claims. The PLCAA provides that a "qualified civil liability action may not be brought in any Federal or State court, "[32] which includes an action brought against a manufacturer or seller of a qualified product "for damages, punitive damages, injunctive or declaratory relief, abatement.. .resulting from the criminal or unlawful misuse of a qualified product by the person or a third party."[33]

         The PLCAA provides exceptions for when a civil action may be brought against a manufacturer or dealer, including when the manufacturer or dealer "knowingly" violates 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...."[34] This exception is known as the predicate exception.[35] Unlike in other states that also have immunity provisions for firearm dealers, Plaintiffs here do not argue that the PLCAA preempts § 1448A(d).[36] At the outset, all parties therefore agree that the Delaware statutory defense found in § 1448A(d) is applicable to the present case.

         Generally, 11 Del. C. § 1448 A deals with criminal history record checks for sales of firearms, and is located within the criminal code.[37] This statute has been amended several times since 2009, although each iteration of the statute included some type of defense available to firearm dealers or manufacturers.[38] In 2013, the legislature amended the statute to what is substantively the same as the 2016 version and the current version amended in October of 2018.[39] When § 1448A was amended in October of 2018, it remained largely unchanged, except for a change to subsection (1).[40] The complete defense found in subsection (d) remained the same.[41] It is this section that is central to the issues before this Court to determine whether 11 Del. C. § 1448A(d) affords a complete defense to compliant transfers of firearms and whether Cabela's, as a federal firearms licensee, is entitled to this complete defense.

         II. Application of Defense Under 11 Del. C. § 1448A(d)

         A. The complete statutory defense applies to compliant transfers.

         Section 1448A(d) provides:

Compliance with provisions of this section shall be a complete defense to any claim or cause of action under the laws of this State for liability for damages arising from the importation or manufacture of any firearm which has been shipped or transported in an interstate foreign commerce. In addition, compliance with the provisions [§§ 1448A(a) and (b)J of this section or § 1448B of this title, as the case may be, shall be a complete defense to any claim or cause of action under the laws of this State for liability for damages allegedly arising from the actions of the transferee subsequent to the date of said compliance wherein the claim for damages is factually connected to said compliant transfer., [42]

         Section 1448A(a) provides that a licensed dealer or manufacturer of firearms shall not transfer a firearm to another person "without conducting a criminal history background check in accordance with regulations promulgated by the United States Department of Justice pursuant to the National Instant Criminal Background Check System ("NICS"), 28 C.F.R. §§ 25.1-25.11..." to determine if the transfer of a firearm would be in violation of federal or state law.[43]

         Additionally, 11 Del. C. § 1448A(b) provides that a licensed dealer or manufacturer shall not sell a firearm to any person "unless and until being informed that it may 'proceed' with the sale, transfer or delivery from inventory of a firearm by the Federal Bureau of Investigation (FBI), NICS Section pursuant to the request for a criminal history record check required by subsection (a) of this section...."[44]As both §§ 1448A(a) and (b) are provisions within § 1448A as described in § 1448A(d), the complete defense is applicable only when there is compliance of both (a) and (b).

         Generally, statutory language should be accorded its plain meaning when it is possible.[45] If a statute is clear and unambiguous, then statutory interpretation is not needed.[46] When § 1448A was amended in 2013 to the version that is substantially the same today, the Legislature intended to "expand[] the legal protections available to gun sellers and dealers who perform background checks in accordance with Delaware law."[47] Cabela's argues this provision encourages compliance by ensuring that when firearm sellers and dealers follow the law, they cannot be held liable for damages for actions that take place after a lawful transfer.

         As pointed out by Plaintiffs, this statute does not protect firearm dealers or sellers who violate the law. This is true. However, this is a civil matter. Plaintiffs assert "willful" conduct on the part of Cabela's and cite to provisions of the law that deal with criminal consequences.[48] These are not applicable here. Therefore, the Court focuses solely on the language in § 1448A(d).

         The plain language of § 1448 A(d) mandates entitlement to a complete defense to any claim for damages arising from subsequent actions by the transferee when the seller complies with the provisions of this section, which includes conducting a criminal history background check in accordance with federal regulations. Thus, Cabela's is only entitled to this complete defense if it performed a compliant transfer in accordance with the statute.

         B. The statutory defense applies to Plaintiffs' negligence claims that seek damages.

         Other jurisdictions have similar State laws that provide a defense or immunity to firearm dealers and sellers.[49] Some of these statutory provisions include language that the dealer may be sued if in violation of state or federal law.[50] The Court is guided by analysis conducted by the Supreme Court of Indiana in KS&E Sports v. Runnels.[51]

         In Runnels, two individuals, Demetrious Martin, a convicted felon who could not purchase or possess a firearm, and Tarus Blackburn, browsed for firearms at the KS&E store.[52] Martin identified the firearm that he liked in the presence of a KS&E employee. Both Martin and Blackburn left the store without purchasing a firearm.[53]Blackburn returned later that day and purchased the firearm that Martin identified, after identifying himself as the buyer of record and completing the required paperwork.[54] The firearm was almost immediately transferred to Martin in the KS&E parking lot, and Martin used the firearm to shoot a police officer approximately two months later.[55] Blackburn was convicted of being a straw purchaser under 18 U.S.C. § 922(a)(6).[56] The injured officer filed a complaint against KS&E, Blackburn, and a KS&E officer, director, and shareholder, in which he alleged claims for negligence, conspiracy, and public nuisance.[57]

         KS&E and its corporate officer moved for judgment on the pleadings and argued that Indiana Code § 34-12-3-3 provided them immunity from the claims.[58]The trial court denied KS&E and the corporate officer's motion.[59] The appellate court ultimately affirmed the trial court's holding.[60] The Indiana Supreme Court affirmed, in part, and reversed, in part, and remanded the case back to the trial court for further consideration.[61]

         The Indiana Supreme Court first found that the statutory bar under Indiana Code § 34-12-3-3(2) applies to unlawful firearm sales where the statute does not contain language that "limits its application to situations where a third party obtained the firearm, directly or indirectly, from a lawful sale."[62] In this case, the immunity "applie[d] even if the firearm had been sold unlawfully."[63] The Indiana Supreme Court then determined whether KS&E was entitled to immunity under the statute as to the various theories of liability.[64] The court dismissed all claims seeking recovery of damages and found that §34-12-3-3(2) provided KS&E with immunity.[65] The public nuisance claim survived, to the extent it sought a remedy other than damages, i.e., an enjoyment or abatement.[66] Here, Plaintiffs seek damages only, [67] and there are similarities between Runnels and this case that call for the same result.

         Yet one key difference not found in Runnels is that the Delaware statute requires compliance with the provisions of §1448A, which includes conducting a criminal background check in accordance with NICS and the federal regulations under 28 C.F.R. §§ 25.1 to 25.11.[68] Under 28 C.F.R. § 25.11, prohibited activities and associated penalties are detailed.[69] It provides that "State and local agencies, [federal firearm licensees], or individuals violating this subpart A shall be subject to a fine not to exceed $10, 000 and subject to cancellation of NICS inquiry privileges."[70] Thus, beyond criminal sanctions previously mentioned, there are provisions within our statute that discuss when a gun seller is subject to civil penalties. Further, misuse or unauthorized access includes "State or local agencies', federal firearm licensees', or individuals' purposefully furnishing incorrect information to the system to obtain a 'Proceed' response, thereby allowing a firearm transfer."[71] In order to impose liability against Cabela's, Plaintiffs need to prove that Cabela's demonstrated the purposeful conduct under 28 C.F.R. § 25.11 that then served to violate the provisions of § 1448 A. On this record, Plaintiffs cannot do so.

         1. Plaintiffs' allegations fail to assert facts in support of their claims.

         In their First Amended Complaint, Plaintiffs spends a great portion of its Complaint discussing gun laws applicable to firearms dealers in general.[72] Plaintiffs explain the federal and state law surrounding the transfer of firearms.[73] The First Amended Complaint also advises the Court on the protocols and programs that have flowed from joint efforts, namely between the following entities: The United States Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") and the National Shooting Sports Foundation ("NSSF"), and includes discussion of Form 4473 and the joint program entitled "Don't Lie for the Other Guy."[74] These allegations suggest that firearm sellers should follow recommended practices that have been proposed nationally. Mere proposed practices, protocols and recommendations are asserted to form the basis of the allegations against Cabela's although it is unclear how.

         As to the specific allegations against Cabela's here in Delaware and Hardwick's role as a straw purchaser, they are limited to the following paragraphs of the First Amended Complaint:

41.On or about July 28, 2016, Kuligowski drove Hardwick to and from the Christiana Mall Cabela's, waiting in the parking lot during the transaction.
42. While inside the store, on information and belief, Hardwick displayed erratic behavior, running up and down the aisles, and remained in regular cell phone communication with Kuligowski through both text messages and phone calls.
43. When making the purchase, Hardwick listed a false address on the Form 4473.
44. When making the purchase, Hardwick made another false statement when she certified that she was the actual buyer/transferee on Form 4473.
45. Cabela's knew or should have known that a straw purchase was underway.[75]

         Based on these assertions, Plaintiffs now defend against dismissal and suggest that Cabela's first, remained "willfully blind" to the above "red flags" that Hardwick was a straw purchaser and, second, that they "then knowingly provided 'incorrect' data to the NICS system-namely the name and associated data for an obvious 'straw purchaser'-in order to get a 'Proceed' response and sell the firearm without checking the records of the actual purchaser."[76]

         First, Plaintiffs do not assert Cabela's missed a step when it conducted the proper checks on Hardwick. They provide no basis as to how Cabela's could have checked the records of anyone other than Hardwick as the actual purchaser. It was not disputed during oral arguments that it would have been a violation, improper, and possibly unlawful, to check the records of another person other than the person who is filling out the Form 4473 to purchase a firearm. This assertion that Cabela's could have, but did not check "the actual purchaser," cannot form the basis for a theory of liability as it is conclusory and unsupported by specific facts. The Court cannot draw unreasonable inferences in favor of the Plaintiffs as to this allegation.

         Next, Plaintiffs argue that Cabela's should have known that Hardwick was a straw purchaser because she was driven to the Christiana Mall by her boyfriend and he waited in the parking lot for her. Accepting this allegation as true, it is unclear how Cabela's could have been aware of this fact at the time of the purchase. Even if surveillance is available to support this "allegation" that her boyfriend was waiting in the parking lot, it is an unreasonable inference that Cabela's should have then suspected that Hardwick was a straw purchaser. Further, even if Cabela's had knowledge that she received a ride to the mall and someone was outside waiting for her, it is not clear how this fact establishes that Cabela's demonstrated the purposeful conduct required under 28 C.F.R. § 25.11 to trigger a violation under §1448A, that Cabela's purposefully provided incorrect information-Hardwick falsifying her address and that she was the actual purchaser-in order to make the sale.

         Next, Plaintiffs allege that upon "information and belief Hardwick "displayed erratic behavior, running up and down the aisles, and remained in regular cell phone communication with Kuligowski through both text messages and phone calls."[77] Accepting as true that the alleged erratic behavior included that she remained in regular communication with Kuligowski, Plaintiffs fail to assert how these facts support that Cabela's engaged in the purposeful conduct required under 28 C.F.R. § 25.11 to trigger a violation under §1448A, and that they purposefully provided "incorrect information" regarding Hardwick in order to make the sale. The focus is on this incorrect information, which includes a false address and that she allegedly lied about being the actual purchaser.

         During oral arguments, the record establishes this incorrect information became available well after the purchase at Cabela's. Police attempted to locate Hardwick at the address provided from her identification, but she was not living there when police investigated the fatal shooting. It was only after the police investigation began that it was determined that Hardwick did not live at the stated address on her identification. Plaintiffs cannot establish that these facts were available to Cabela's at the time they had her fill out the documentation. It is therefore unclear how it could be established that Cabela's was purposefully submitting "incorrect information" that was unknown at the time she was filling out Form 4473.

         A motion to dismiss must be denied if a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. Also accepting as true that Hardwick provided false information or that she was not the intended actual purchaser of the firearm, these facts only became known through police interviews two months later after Cabela's obtained the clearance to proceed with the transfer. Facts including her ride to the mall and her communications with her boyfriend are ancillary to the question of whether Cabela's violated the law and made an unlawful transfer based upon the information she provided on Form 4473. Based on the timing of the events, it was the police investigation that discovered she falsified information. Therefore Plaintiffs fail to establish that Cabela's "purposefully" furnished incorrect information in order to obtain a "proceed" response from the system that allowed the firearm transfer to occur in violation of 28 C.F.R. § 25.11.

         For these reasons, the Court finds that in drawing all reasonable inferences in favor of Plaintiffs, at this juncture, they are not able to recover under a reasonably conceivable set of circumstances susceptible under the Complaint. Cabela's performed a NICS background checked, received a "proceed" response, and otherwise complied with the relevant statutory provisions. Therefore, Cabela's is entitled to the complete defense under § l448A(d) for all claims seeking damages. Here, since all of Plaintiffs' claims seek damages, ...

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