United States District Court, S.D. Texas, Houston Division
DANTE GORDON, individually and on behalf of all others similarly situated, Plaintiff,
SIG SAUER, INC., Defendant.
ORDER FOR SUPPLEMENTAL BRIEFING AND AMENDED
Rosenthal Chief United States District Judge.
III of the United States Constitution limits federal judicial
power to cases and controversies. Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016). Standing requires a
plaintiff to demonstrate an (1) injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable
judicial decision. Id. Because standing is
jurisdictional, the court must raise the issue on its own.
Ford v. NYLCare Health Plans of Gulf Coast, Inc.,
301 F.3d 329, 331-32 (5th Cir. 2002). The court extends the
briefing schedule and resets the initial pretrial conference
so that the parties may brief standing. Sig Sauer must
respond no later than May 24,
2019. Sig Sauer must reply no later than
May 31, 2019. The initial
pretrial conference is set for July 15,
2019, at 9:00 a.m.
case is a putative class action against Sig Sauer, Inc., a
gun manufacturer, for an alleged design defect in its P320
pistol. The alleged defect is that the P320 may drop
fire-fire without a trigger pull if it falls, lands at a
certain angle, and has a bullet chambered. Since August 2017,
Sig Sauer has offered to fix the drop-fire problem for free
if purchasers send in their P320s.
named plaintiff, Dante Gordon, purchased a P320 in 2014. The
complaint does not allege that Gordon personally suffered an
injury from the alleged defect, or that Gordon has stopped
using his P320 because of it. Instead, the complaint alleges
that Gordon would not have purchased the P320 if he had known
“that it was not, in fact, properly manufactured, free
from defects, and had he known that it was susceptible to
drop fires.” (Docket Entry No. 1 at 3).
threshold question is whether Gordon has alleged an injury in
fact. See Singh v. Radio Shack Corp., 882 F.3d 137,
151 (5th Cir. 2018) (“That a suit may be a class action
adds nothing to the question of standing, for even named
plaintiffs who represent a class must allege and show that
they personally have been injured, not that injury has been
suffered by other, unidentifiable members of the class which
they purport to represent.” (alterations omitted)
(quoting Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 40 n.20 (1976))). “To establish an injury in
fact, a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest' that is
‘concrete and particularized' and ‘actual or
imminent, not conjectural or hypothetical.'”
Spokeo, 136 S.Ct. at 1548 (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “For
an injury to be ‘particularized,' it must affect
the plaintiff in a personal and individual way.”
Id. (quotation omitted). “A
‘concrete' injury must be ‘de
facto'; that is, it must actually exist.”
Id. (quotation omitted). “The injury in fact
test requires more than an injury to a cognizable interest.
It requires that the party seeking review be himself among
the injured.” Rivera v. Wyeth-Ayerst Labs.,
283 F.3d 315, 320 (5th Cir. 2002) (quoting Sierra Club v.
Morton, 405 U.S. 727, 734-35 (1972)).
does not allege that his P320 caused him “physical or
emotional injury, ” that it “was ineffective,
” or that he invoked the repair opportunity provided.
Id. at 319. He alleges only that he would not have
purchased a P320 if he knew about the drop-fire problem.
While “[e]conomic injury suffices as a form of
injury-in-fact, ” Hughes v. Ester C Co., 930
F.Supp.2d 439, 453 (E.D.N.Y. 2013) (citing Watt v. Energy
Action Educ. Found., 454 U.S. 151, 161 (1981)), courts
have disagreed as to whether such an injury is shown by an
allegation that the plaintiff would not have purchased a
product if he had known of a defect and no further
consequence of that defect is alleged.
must address his basis for Article III standing in his
response to Sig Sauer's motion to dismiss. Sig Sauer must
brief this issue in its reply brief. The court modifies the
schedule as follows:
• Gordon must respond to the motion to dismiss no later
than May 24, 2019;
• Sig Sauer must reply no later than May
• The court will hold the initial pretrial conference at
July 15, 2019, at
 Compare Bradach v. Pharmavite,
LLC, 735 Fed.Appx. 251, 254 (9th Cir. 2018); Mazza
v. Am. Honda Motor Co., Inc., 666 F.3d 581, 595 (9th
Cir. 2012); Muir v. Playtex Prods., LLC, 983
F.Supp.2d 980, 986 (N.D. Ill. 2013); Pirozzi v. Apple
Inc., 913 F.Supp.2d 840, 846-47 (N.D. Cal. 2012);
Maple v. Costco Wholesale Corp., No. 12-CV-5166,
2013 WL 11842009, at *4 (E.D. Wash. Aug. 1, 2013); Rikos
v. Proctor & Gamble Co., 782 F.Supp.2d 522, 531
(S.D. Ohio 2011), with Koronthaly v. L'Oreal USA,
Inc., 374 Fed.Appx. 257, 259 (3d Cir. 2010);
Rivera, 283 F.3d 315, 315 (5th Cir. 2002);
Hubert v. Gen. Nutrition Corp., No. 15-CV-1391, 2017
WL 3971912, (W.D. Pa. Sept. 8, 2017); Veal v. Citrus
World, Inc., No. 12-CV-801, 2013 WL 120761, at *6 (N.D.
Ala. Jan. 8, 2013); Bowman v. RAM Med, Inc., No.
10-CV-4403, 2012 WL 1964452, at *3 (D.N.J. May 31, 2012);
Matte v. Sunshine Mobile Homes, Inc., 270 F.Supp.2d
805, 820 (W.D. La. 2003).
 Sig Sauer discussed Gordon's
standing to assert “national wide claims” on the
putative class's behalf, but not his own standing.