Products Liability Law Daily Wrap Up, JURISDICTION—WEAPONS AND FIREARMS—E.D. Cal.: Class action complaint against gun safe sellers dismissed with leave to amend, (Feb 12, 2025)

By Pankhuri Bhatnagar, B.A. LL.B.

The complaint was dismissed for lack of subject matter jurisdiction and failure to comply with Federal Rule of Civil Procedure 15.

In a putative class action brought by a consumer against several gun safe sellers for knowingly selling safes with defective biometric systems, a federal district court in California granted the sellers’ request to incorporate by reference the product’s recall notice but declined to take judicial notice or incorporate the sellers’ website notices and publicly available recall information. The consumer’s failure to specify the number of putative California class members and to establish that the class’s aggregate claims exceeded the $5 million disputed-amount requirement of 28 U.S.C. § 1332(d)(2) led to the dismissal of his complaint (Hamilton v. xPedition, LLC, No. 2:24-cv-02157-KJM-CSK (E.D. Cal. Feb. 7, 2025)).

Background. A man brought suit against xPedition, LLC dba Fortress Safe and Cabela’s, LLC (together, Fortress Safe or sellers) on behalf of himself and a class of others who bought one of the nine models of allegedly defective gun safes sold by the sellers through retail outlets. Two of the nine safes were branded under Cabela’s name: the “Cabela’s 4 Gun Safe with Biometric Lock” and the “Cabela’s Biometric Personal Safe.” Each model’s biometric feature allowed owners to lock and unlock a safe with their fingerprints. However, the models were defectively “default[ed] to open.” Unless an owner programmed his fingerprints into the safe, any person could unlock the safe with their own fingerprints. This defect caused consumers to unknowingly leave their safes open and produced over 40 reports of people gaining unauthorized access to guns stored in the safes, and one of these incidents led to the fatal shooting of a 12-year-old boy.

The man alleged that the sellers knew of the defect prior to the sales and, in pursuit of profit, omitted to disclose it on their websites, on sales packaging, and to customers communicating with its sales representatives. In October 2023, Fortress Safe and the Consumer Product Safety Commission (CPSC) recalled 61,000 biometric safes, ranging in retail price from $44 to $290. Yet, the sellers refused to refund customers and instead gave them a different biometric safe despite customers’ concerns about the safes’ functionality. The complaint alleged claims for unjust enrichment and violations of California’s Unfair Competition Law (UCL), California’s Consumers Legal Remedies Act (CLRA), the implied warranty of merchantability in California’s Song-Beverly Consumer Warranty Act, and the implied warranty of merchantability under common law. The sellers moved to dismiss the complaint and asked the court to take judicial notice or incorporate by reference materials relating to the recall of the gun safe models. The man filed an amended complaint without asking the court’s leave or obtaining Fortress Safe’s written consent.

Recall materials. The consumer did not oppose the sellers’ request for the court to take judicial notice or incorporate by reference the full text of CPSC’s recall notice, the recall notification materials on Cabela’s website, and publicly available information about the recall. As noted in Knievel v.22 ESPN, Inc., 393 F.3d 1068, 1076 (9th Cir. 2005), courts may incorporate documents by reference in “situations in which the plaintiff’s claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint.” The man’s allegations here depended on the recall notice; the full text of the notice was relevant to Fortress Safe’s motion; and the parties did not dispute the recall notice’s authenticity. Thus, the court incorporated by reference the recall notice but declined to take judicial notice or incorporate the remaining materials as it was unclear whether the court could take judicial notice of those materials given the requirements of Federal Rule of Evidence 201(b)(2), and the information was nevertheless unhelpful in deciding the disputed issues.

Jurisdiction. The man invoked this court’s diversity jurisdiction under 28 U.S.C. § 1332(d)(2)(A) as the parties were minimally diverse—the consumer was a California citizen, Fortress Lock was an Illinois company, and Cabela’s was incorporated in Delaware with its principal place of business in Missouri. He alleged that the value of the class’s aggregate claims exceeded the $5 million amount-in-controversy requirement of § 1332(d)(2) but failed to allege facts to support this contention. In the recall notice, CPSC claimed that it recalled 61,000 biometric safes ranging from $44 to $290. But it was unclear how many class members bought the expensive safes versus how many bought the cheaper versions, a key point in determining the amount in controversy. Despite desiring to certify a nationwide class, the man pleaded only California statutory violations and California common law claims, and did not specify the number of putative California class members. The absence of such information doomed subject matter jurisdiction as the allegations did not cross the line from the conceivable to the plausible, and the complaint was dismissed.

Amendment. Fed. R. Civ. P. 15(a)(1) clarifies that a “party may amend its pleading once as a matter of course no later than…21 days after serving it, or…if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Here, the consumer’s complaint was filed on August 12, 2024. Fortress Safe filed its dismissal motion on November 1, 2024, and the man did not file his amended complaint until February 6, 2025. Thus, he could not amend his complaint under Rule 15(a)(1). Nor could he amend under Rule 15(a)(2)12 because he did not seek leave from this court or obtain written consent from Fortress Safe. Accordingly, the amended complaint was dismissed with leave to amend within 21 days.

The case is No. 2:24-cv-02157-KJM-CSK.

Judge: Mueller, K.

Attorneys: Yeremey Olegovich Krivoshey (Smith Krivoshey, PC) for Russ Hamilton. Theodore Dorenkamp, III (Bowman & Brooke LLP) for xPedition LLC d/b/a Fortress Safe.

Companies: xPedition LLC d/b/a Fortress Safe

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