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Williams v. Romarm S.A.

United States District Court, D. Vermont

September 1, 2017

NORMAN WILLIAMS AND DIANE HOWE, AS LEGAL REPRESENTATIVES OF J.H., JAMEL BLAKELY, and KEVIN ATTAWAY, Plaintiffs,
v.
ROMARM S.A., Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. 77)

          Christina Reiss, Chief Judge United States District Court.

         Plaintiffs, Norman Williams and Diane Howe, as legal representatives of J.H.; Jamel Blakely; and Kevin Attaway, bring this action against Defendant Romarm SA. seeking relief pursuant to the District of Columbia Assault Weapons Manufacturing Strict Liability Act ("SLA"), D.C. Code § 7-2551. Plaintiffs initially filed in Maryland state court, and Defendant removed the action to the District of Maryland. On January 9, 2017, the Honorable Theodore D. Chuang granted Plaintiffs' motion to transfer the action to this court pursuant to 28 U.S.C. § 1406.

         Pending before the court is Defendant's motion to dismiss (Doc. 77) pursuant to Fed.R.Civ.P. 12(b)(1)-(6) for lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a claim. Following oral argument on July 17, 2017, the court took the motion under advisement.

         Plaintiffs are represented by Daniel M. Wemhoff, Esq. and Kevin A. Lumpkin, Esq. Defendant is represented by Andrew D. Manitsky, Esq., Anthony M. Pisciotti, Esq., James W. Porter, III, Esq., Jeffrey M. Malsch, Esq., and John Parker Sweeney, Esq.

         I. The Amended Complaint.

         The following facts are derived from Plaintiffs' Amended Complaint. Plaintiffs Williams and Howe are the legal representatives of J.H., who was shot and killed in the District of Columbia on March 22, 2010. Plaintiffs Blakely and Attaway sustained gunshot wounds in a related incident in the District of Columbia on March 30, 2010. Defendant is a firearm manufacturer and "an agency or instrumentality of the Romanian sovereign[.]" (Doc. 56 at 3, ¶ 7.) Defendant manufactured the firearm, a WASR-10 semi-automatic weapon, which was allegedly used to kill J.H. and injure Plaintiffs Blakely and Attaway (the "firearm").

         The firearm was sold to Century Arms International, Inc. ("Century"), Defendant's exclusive distributor in the United States, and entered the United States through Century's facility in Vermont.[1] Defendant and Century have entered into a Business Promotion and Protection Agreement whereby Defendant agreed to manufacture and design its weapons so that Century can modify them to comply with domestic law. Plaintiffs allege that Century purchases over $5 million in firearms from Defendant annually.

         In 2006, Century sold the firearm to a Federal Firearms License ("FFL") dealer in Ohio, which then sold it to a Maryland-based FFL.[2] Sometime in 2007, the Maryland-based FFL sold the firearm to an unidentified purchaser. Plaintiffs do not allege that these transfers were unlawful. After the firearm was sold in Maryland in 2007, it was allegedly used in March 2010 in the District of Columbia to kill J.H. and seriously injure Plaintiffs Blakely and Attaway.

         II. Procedural Background.

         Plaintiffs Williams and Howe filed an action pursuant to the SLA against Defendant in the District of Columbia Superior Court in 2011, which Defendant subsequently removed to the United States District Court for the District of Columbia. Enacted in 1991, the SLA provides that:

Any manufacturer, importer, or dealer of an assault weapon or machine gun shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death if the bodily injury or death proximately results from the discharge of the assault weapon or machine gun in the District of Columbia.

D.C. Code §7-2551.02.

         On March 20, 2012, in order to comply with the District of Columbia's newly enacted statute of limitations for wrongful death actions, Plaintiffs Williams and Howe re-filed a second action in federal court in the District of Columbia against Defendant and dismissed the action they had filed the previous year. On February 4, 2013, the district court dismissed the re-filed action on the grounds that the District of Columbia lacked personal jurisdiction over Defendant, and the United States Court of Appeals for the District of Columbia Circuit subsequently affirmed. See Williams v. Romarm, 187 F.Supp.3d 63 (D.D.C. 2013), aff'd, 756 F.3d 777 (D.C. Cir. 2014).

         Plaintiffs thereafter filed a third action in Maryland state court on September 2, 2014. Attorney Wemhoff attempted to effect service upon Defendant by mailing the complaint to Defendant's counsel, without seeking its consent to accept service in this manner. Defendant timely removed the action to the District of Maryland, which dismissed the action for lack of personal jurisdiction on July 20, 2015 and September 30, 2016. See Williams v. Romarm S.A., 116 F.Supp.3d 631 (D. Md. 2015); 2016 WL 5719717 (D. Md. Sept. 30, 2016). Although Defendant moved to dismiss on other grounds before the district courts in the District of Columbia and Maryland, Defendant's alternative grounds for dismissal were not adjudicated.

         The case was thereafter transferred to this court. In granting Plaintiffs' motion to transfer, Judge Chuang concluded that Plaintiffs had made "a prima facie showing that Romarm is subject to personal jurisdiction in Vermont." (Doc. 67 at 2.)

         On March 3, 2017, Defendant filed the instant motion. In addition to seeking dismissal on the grounds of lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a claim, Defendant contends that Plaintiffs' action is time-barred and that the SLA ...


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