District of Columbia v. Beretta, U.S.A., Corp.

*660 WAGNER, Chief Judge,

concurring, in part, and dissenting, in part.

In my view, the trial court properly dismissed the individual plaintiffs’ claims under the Strict Liability Act, D.C.Code § 7-2551.02 (the Act) set forth in their Third Amended Complaint. 1 Under this Act, a manufacturer, importer or dealer of an assault weapon is subject to liability without fault only if a plaintiffs injuries proximately resulted from the discharge of one of the weapons of that particular manufacturer, importer or dealer. D.C.Code § 7-2551.02. In this case, as the trial court concluded, plaintiffs did not allege that any one of the twenty-five (25) named defendants and one to one-hundred (1 to 100) DOE defendants is a manufacturer, importer or dealer of the weapon that actually caused them harm. 2 Even at the en banc argument, counsel for plaintiffs/appellants had to concede that they still cannot tie any of the individual defendants to a weapon that caused harm to any one of them. Thus, plaintiffs did not and cannot plead the predicate facts to hold any of the named defendants liable for their injuries under the Act. The failure to allege an essential element of the cause of action created by the Act is fatal to plaintiffs’ pleading, and defendants are entitled to dismissal under our rules and precedents. See Super. Ct. Civ. R. 12(b)(6) (failure to state a claim on which relief can be granted); see also Bible Way Church v. Beards, 680 A.2d 419, 432 (D.C.1996), cert. denied, 520 U.S. 1155 , 117 S.Ct. 1335 , 137 L.Ed.2d 494 (1997) (affirming dismissal of breach of contract and tortious interference with contract claims under Rule 12(b)(6) because the complaint did not indicate that plaintiff had a contract with defendant).

To withstand • a motion to dismiss for failure to state a claim, a plaintiff must “ ‘outline or adumbrate’ a violation of the statute or constitutional provisions upon which the plaintiff relies, Sutliff, Inc. v. Donovan Co., 727 F.2d 648 , 654 (7th Cir. 1984), and connect the violation to the named defendants; Patton v. Przybylski, 822 F.2d 697, 701 (7th Cir.1987).” Brownlee v. Conine, 957 F.2d 353, 354 (7th Cir. 1992) (emphasis added). Here, the complaint fails to connect plaintiffs’ injuries to any of the named defendants. Even under the liberal “notice pleading” standard embodied in Super. Ct. Civ. R. 8(a)(2) and its federal counterpart, “it is still necessary that a complaint ‘contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.’ ” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678 , 683 (11th Cir.2001) (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A Sept.8, 1981)). Identifying the party liable for a particular wrong is one of the most fundamental requirements for an adequately pleaded claim. See Elmore v. Stevens, 824 A.2d 44 (D.C.2003). In Elmore , this court rejected as inadequate a complaint that never alleged that the defendant did anything connected with plaintiffs claims. Id. at 46 ; see also McDonald v. Hall, 610 F.2d 16, 19 (1st Cir.1979) (“[The court’s] duty to be ‘less stringent’ with pro se complaints does not require us to conjure up unpled allegations.”(quoting Hurney v. Carver, 602 F.2d 993 (1st Cir.1979)). Here, plaintiffs’ failure to identify in the complaint the *661 manufacturer of the firearm which caused them harm negates any claim under the Strict Liability Act.

The Supreme Court’s decision in Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957), quoted in the majority opinion at p. 655, does not support the conclusion that the complaint in this case is sufficient to withstand a motion to dismiss for failure to state a claim under our local strict liability statute. Conley involved a class action discrimination complaint by railroad employees against their union. The issue was whether more factual details about the alleged discrimination was required to avoid dismissal for failure to state a claim. Id. at 47 , 78 S.Ct. 99 . The complaint alleged, among other things, how petitioners came to be discharged or demoted, and “[djespite repeated pleas by petitioners, the Union, acting according to plan, did nothing to protect them against these discriminatory discharges and refused to give them protection comparable to that given white employees”; that the Union failed to represent them in good faith; and, that the union’s failure violated their rights under the Railway Labor Act to fair representation from their bargaining agent. Id. at 43 , 78 S.Ct. 99 . The defendant Union was identified clearly and placed on notice of the alleged acts or omissions forming the basis for the plaintiffs’ claim of liability. Rejecting the argument that more specific facts were required to support the general allegations of discrimination, the Supreme Court held that the Federal Rules require only “ ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Id. at 47 , 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)). The pleading standard was met in Conley ; it is not met here. In Conley , the Supreme Court simply held that the complaint adequately set forth a claim under Fed. R. Civ. 8; it did not relieve the plaintiffs of the obligation of identifying the defendant as a wrongdoer and placing it on notice of the claim against it. See Elmore, supra, 824 A.2d at 46 (citing Keranen v. National R.R. Passenger Corp., 743 A.2d 703, 713 (D.C.2000)).

It is fundamental that a plaintiff must disclose sufficient information to put the defendant on notice of the claim against him. Keranen, supra, 743 A.2d at 713 . The Act in question here imposes strict liability only for death or injuries resulting from the discharge of a particular kind of weapon, and then only when the link has been established between a specific manufacturer and the gun that caused the injury. D.C.Code § 7-2551.02. Plaintiffs have not alleged the requisite connection between the harm they sustained and any of the defendants in this case. Therefore, the complaint is deficient for failure to plead the predicate facts to make out the statutory cause of action. This court should not force a defendant into costly pre-trial discovery when there is no showing that plaintiff can make out a cause of action from the allegations in the complaint. Sutliff, supra, 727 F.2d at 654 (citations omitted). For these reasons, I respectfully dissent from Part Y.B. of the majority opinion, and I would not reach the constitutional challenges to the Act addressed in Part V.C. However, I join in Parts I through IV. A. of the opinion of the court.

. Each of the amended complaints added party plaintiffs.

. The complaint alleges that plaintiffs do not know the status of the 1 through 100 DOE defendants, but that each has “engaged, in the business of manufacturing, importing, marketing, distributing, selling, or dealing in firearms” and that "[e]ach regularly sells or solicits the purchase of its firearms in the District or derives substantial revenue from firearms used or consumed in the District.”