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.
MEMORANDUM AND OPINION
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
Sauer, Inc. designs and manufactures pistols for military,
law enforcement, and civilian use. One pistol model,
manufactured from 2014 to 2017, the P320, could allegedly
“drop fire”- discharge a round of ammunition if
dropped to the floor-a design defect. Dante Gordon alleges
that he purchased his P320 in 2014. Gordon does not allege
that his P320 fired after being dropped. Instead, Gordon
alleges that he would not have purchased the P320, or would
have paid less, if he knew that it was not “drop
safe”; that he has stopped using his P320; and that his
P320 has lost resale value.
Gordon alleges that Sig Sauer learned of the problem in
internal testing before launching the P320 in 2014, he also
alleges that in 2016, the United States Army notified Sig
Sauer of the potential to drop-fire. In 2017, Sig Sauer
implemented a Voluntary Upgrade Program that made
modifications designed to address drop performance, without
charging customers. Under the Program, customers had to send
in their P320s to have the drop-fire issue fixed. Gordon has
not sent in his P320. Sig Sauer changed the design for
pistols made in 2017 and after. (Docket Entry No. 1).
Sauer moved to dismiss. Gordon amended his original
complaint, asserting claims for express and implied warranty
breach, unjust enrichment, fraudulent concealment, fraud, and
violations of the Magnuson-Moss Warranty Act and the Texas
Deceptive Trade Practices Act. Sig Sauer answered and moved
to dismiss for lack of subject-matter and personal
jurisdiction and for failure to state a plausible claim.
Gordon argues that he has alleged facts sufficient for
standing, and that the amended complaint allegations state
plausible claims under the Magnuson-Moss Warranty Act and
Texas law. Gordon sued on behalf of both himself and a
nationwide class of P320 purchasers; Sig Sauer moved to
strike Gordon’s proposed class definitions or to narrow
them to Texas purchasers. Gordon responded that it is
premature to address the class definitions or personal
jurisdiction as to putative class members.
carefully reviewing the amended complaint; the motion to
dismiss, response, and reply; the properly considered
documents; and the applicable law, the court grants in part
and denies in part the motion to dismiss, and grants the
motion to strike. (Docket Entry No. 35). Gordon must amend
his complaint to conform to these rulings no later than
October 28, 2019.
motions to dismiss for lack of subject-matter jurisdiction
and lack of personal jurisdiction are denied. (Docket Entry
No. 35). Sig Sauer’s Rule 12(b)(6) motion to dismiss is
granted in part and denied in part. The court grants the
motion to dismiss for insufficient pleading as to:
• the claim for written warranty breach under the
Magnuson-Moss Warranty Act, without prejudice and with leave
• the express warranty claim under Texas law, without
prejudice and with leave to amend;
• the fraudulent concealment claim, with prejudice and
without leave to amend;
• the fraud by misrepresentation and concealment claims,
without prejudice and with leave to amend;
• the Texas Deceptive Trade Practices Act claim for
false, misleading, or deceptive statements, without prejudice
and with leave to amend.
The court denies Sig Sauer’s motion to dismiss as to:
• the implied warranty claims under the Magnuson-Moss
Warranty Act and Texas law;
• the unjust enrichment claim; and
• the Texas Deceptive Trade Practices Act claims based
on warranty breach and unconscionable conduct.
The motion to strike the class definitions is granted, as
• the common-law fraud claims and the Texas Deceptive
Trade Practices Act claims based on false and misleading
statements are stricken as to both the putative Texas and
nationwide classes; and
• the express and implied warranty claims, Magnuson-Moss
Warranty Act claims based on the Texas-law warranty breach
claims, the Texas Deceptive Trade Practices Act claims based
on warranty breach, and the unjust enrichment claims are
stricken as to the putative nationwide class.
Gordon, individually, the implied warranty breach claim, the
Magnuson-Moss Warranty Act claim based on implied warranty,
the unjust enrichment claim, and the Texas Deceptive Trade
Practices Act claims based on warranty breach and
unconscionable conduct remain pending. As to the putative
Texas class, the implied warranty breach claim, the
Magnuson-Moss Warranty Act claim based on implied warranty,
the unjust enrichment claim, and the Texas Deceptive Trade
Practices Act claims based on warranty breach and
unconscionable conduct remain pending. As to the nationwide
class, only the Texas Deceptive Trade Practices Act claim
based on unconscionable conduct remains pending.
reasons for these rulings are stated in detail below.
The Amended Complaint Allegations
facts are drawn from Gordon’s amended complaint
allegations, accepted as true for this motion, and the
documents referred in and central to those allegations.
Brand Coupon Network, L.L.C. v. Catalina Mktg.
Corp., 748 F.3d 631, 635 (5th Cir. 2014).
Sauer, a Delaware corporation with its principal place of
business in Portsmouth, New Hampshire, designs and
manufactures “firearms for military, law enforcement,
and commercial markets, ” including “pistols,
rifles, short barrel rifles, [and] accessories.”
(Docket Entry No. 34 at 4). The firearms are marketed and
sold by licensed dealers. (Id.). In 2014, Sig Sauer
began manufacturing the P320, a handgun with “a striker
firing mechanism.” (Id. at 1–2).
year, Dante Gordon bought a P320 “from an ARS Outdoors
store in Cypress, Texas.” (Id. at 3). Before
buying the pistol, Gordon “reviewed the portion of the
[Sig Sauer] website concerning the P320”; “relied
on [Sig Sauer’s] marketing statements about the safety
of the firearm”; and “understood” the
“accompanying labels, disclosures, warranties, and
marketing materials . . . as representations and warranties .
. . that the P320 was properly designed, was ‘drop
safe[, ]’ and ‘won’t fire unless you want
it to.’” (Id.).
alleges that Sig Sauer’s “Safety Without
Compromise marketing campaign” included the statement
that “[f]rom the trigger, to the striker and even the
magazine, the P320 won’t fire unless you want it
to.” (Id. at 5 (internal quotation marks
omitted)). He alleges that advertisements associated with the
marketing campaign stated that the P320 would fire only after
a trigger pull and was “drop safe.” (Id.
at 5–6). Gordon does not allege in what years or months
this marketing campaign began or ended, or what statements he
read and relied on when he bought his P320. (See Id
. at 3–6). Instead, he alleges that he
“understood” what he saw on Sig Sauer’s
marketing materials and website as stating that the P320 was
“drop safe.” (Id. at 3).
P320 Owner’s Manual warned that “[i]f dropped,
the pistol may fire, ” and that “[a]ny firearm
may fire if dropped.” (Docket Entry No. 36 at 3
(emphasis omitted)). It is unclear whether Gordon saw the
Manual before making his P320 purchase. Gordon alleges that
the P320 became a “popular and commercially successful
pistol” used “by law enforcement agencies all
over the country” and owned “by hundreds of
thousands of civilians.” (Docket Entry No. 34 at 1). In
2015, the United States Army contracted with Sig Sauer to
manufacture the P320 for military use. (Id. at 2,
alleges that the P320 model manufactured between 2014 and
August 2017 had a design defect allowing it to
“inadvertently” fire if dropped with a round in
the chamber. (Id. at 1– 2, 8). Because of
unspecified “internal testing, ” Gordon alleges,
Sig Sauer has known of the “defect since at least
2014.” (Id. at 2).
April 2016, after the Army “discovered that the SIG
P320 pistol [model manufactured starting in 2014] would fire
unintentionally” when dropped, the Army informed Sig
Sauer, which promptly “modified the trigger
mechanism” to fix the issue. (Id. at
6–7). Gordon alleges that this initial modification
“only applied to military versions of the SIG
P320.” (Id.). Sig Sauer did not
“implement the drop fire fix for its civilian pistols
until [August] 2017, at which point it began manufacturing
the P320 with a lighter trigger and modified sear.”
(Id. at 7–8). Gordon alleges that gun owners,
law enforcement, and firearm dealers “replicated the
drop fire incidents in their own testing” of pistols
manufactured before 2017. (Id.).
alleges that, on August 4, 2017, Sig Sauer’s Chief
Executive Officer, Ron Cohen, released a statement that
“[t]here have been zero (0) reported drop-related P320
incidents in the U.S. Commercial market.” (Id.
at 11). Days later, on August 8, 2017, Sig Sauer
“announced a ‘voluntary upgrade’ for the
P320 pistol, ” inviting P320 owners to send in their
guns to enhance “overall safety including drop
performance” by reducing trigger, sear, and striker
weight. (Id. at 11, 14). Sig Sauer did not issue a
mandatory recall. Instead, “[t]he voluntary upgrade was
presented as purely optional, not urgent, and not
mandatory.” (Id. at 11).
Sauer did not send individual notice to P320 owners of the
Voluntary Upgrade Program to address the drop-fire problem.
(Id. at 13). Instead, Sig Sauer posted information
about the upgrade on its website. (Id. at
14–18). Gordon alleges that “[t]he only
information about the drop fire design first appeared around
August 8, 2017, [and] is buried in the Frequently Asked
Questions [section] in [Sig Sauer’s] website.”
(Id. at 16). That section describes why Sig Sauer
offered the Voluntary Upgrade Program:
Through additional testing above and beyond standard American
National Standards Institute (ANSI)/Sporting Arms &
Ammunition Institute (SAAMI), National Institute of Justice
(NIJ), Department of Justice (DOJ), Massachusetts,
California, and other global military and law enforcement
protocols, we have confirmed that usually after multiple
drops, at certain angles and conditions, a potential
discharge of the firearm may result when dropped. Although it
is a rare occurrence, with very specific conditions, SIG
SAUER is offering an upgrade to all of its current P320
(Id.). The Frequently Asked Questions section of the
website also stated that, even as originally designed, the
P320 “meets and exceeds all U.S. safety
standards” and “exceeds all ANSI/SAAMI, NIJ, DOJ,
California, Massachusetts, and safety standards.”
(Id. at 17). The section also stated that
“[m]inimal reported drop-related P320 incidents have
occurred in the U.S. commercial and law enforcement markets,
with hundreds of thousands of guns delivered to date, ”
and that the reported incidents “occurred in conditions
that appear to be outside of normal testing protocols.”
alleges that “more than 500, 000 SIG P320 pistols were
sold to the public with the design defect.”
(Id. at 8). Gordon identified four individuals
injured when their P320s fired when dropped; these
individuals allegedly reported the incidents to Sig Sauer as
early as January 2017. (Id. at 9–10).
The Claims for Relief and Motions to Dismiss and
amended complaint alleges that Sig Sauer defectively designed
the P320, and that it misrepresented and warrantied that
“the P320 pistols were ‘drop safe’ and
‘won’t fire unless you want them to,
’” despite knowledge of the defect. (Id.
at 1 (alteration omitted)). Gordon’s design-defect
theory appears to be that the defect occurred when Sig Sauer
first used a striker-firing mechanism in a pistol design,
rather than the hammer-firing mechanism it had customarily
used. (Id. at 1–2). Gordon asserted claims for
express and implied warranty breach, Magnuson-Moss Warranty
Act violations, unjust enrichment, fraudulent concealment,
fraud, and Texas Deceptive Trade Practices Act violations.
(Id. at 20–29).
seeks to represent two classes. The first proposed class
consists of “all persons in the United States who
purchased a SIG P320 semi-automatic pistol, in both the
full-size and compact versions.” (Id. at 18).
The second is “all Class members in Texas.”
(Id.). Gordon has not limited the classes by dates.
his injuries, Gordon alleges that he has stopped using and
“would not have purchased his SIG P320 if he had known
that it was not, in fact, properly designed and unduly
susceptible to drop fires, or he would not have been willing
to pay as much for it.” (Id. at 3–4).
Gordon also alleges that the Voluntary Upgrade Program
“would not compensate him for his lost use of the
pistol during the upgrade period, and it would not compensate
him for the significantly diminished resale value of his SIG
P320 resulting from the drop fire design defect.”
(Id. at 4). Gordon characterizes his lawsuit as
intended to ensure that “gun owners like himself are
not duped into paying hundreds of dollars for guns that are
unsafe.” (Id. at 2).
Sauer has moved to dismiss based on: lack of subject-matter
jurisdiction due to the absence of the injury-in-fact needed
for standing; lack of personal jurisdiction over non-Texas
absent putative class members; and failure to state a claim.
(Docket Entry No. 35). Sig Sauer argues that there is no
injury and that the express and implied warranty claims fail,
because “the product Gordon claims he bargained for-a
P320 without an alleged drop-fire defect-is being provided by
SIG Sauer to all customers free of charge.”
(Id. at 27–34).
class allegations, Sig Sauer moves to strike because the
proposed definitions are overbroad and fail to satisfy the
Federal Rule of Civil Procedure 23 requirements or to show
personal jurisdiction over absent non-Texas putative class
members. (See Id . at 10–11, 13, 18, 23–
claim-sufficiency challenges, Sig Sauer argues that: Gordon
has not alleged facts supporting a plausible inference that
Sig Sauer’s alleged Deceptive Trade Practices Act
violations caused him injury; “[b]rochures and consumer
advertising cannot create a warranty enforceable under the
[Magnuson-Moss Warranty Act]”; Gordon failed to give
Sig Sauer sufficient notice to cure the drop-fire issue
before suing for warranty breach, as required under federal
and Texas law; Texas law does not recognize stand-alone
unjust enrichment or fraudulent concealment claims; and Sig
Sauer had no duty to disclose the alleged defect before
Gordon purchased his P320. (Id. at 27–34).
responds that he suffered economic injury from Sig
Sauer’s defective design and misrepresentations; Sig
Sauer’s marketing materials created an express warranty
that Gordon may enforce under both Texas law and the
Magnuson-Moss Warranty Act; the Voluntary Upgrade Program did
not remedy Gordon’s economic injuries from loss of use
and decrease in resale value, and, even if it did, Sig Sauer
has not effectively notified P320 owners of the Program;
Gordon provided Sig Sauer sufficient notice of his warranty
claims; Texas law recognizes an unjust enrichment claim, and
it is pleaded in the alternative; Sig Sauer had a duty to
disclose the drop-fire defect in 2014 because “it
possessed superior knowledge about firearm” and learned
about the defect from “internal testing” in 2014,
before the Army informed Sig Sauer of it in 2016; and the
amended complaint alleges enough facts to support a plausible
inference that the alleged Texas Deceptive Trade Practices
Act violations caused Gordon’s injuries. (Docket Entry
No. 37 at 10, 18, 22, 24–25, 28–34). Sig Sauer
replied to reiterate its arguments and to emphasize that
Gordon lacks Article III standing because he has not alleged
a “manifest defect.” (Docket Entry No. 38 at
5–7). As to the class allegations, Gordon argues that
in advance of any effort to certify a class, it is premature
to strike the class definitions based on scope or personal
jurisdiction as to the putative class members. (Docket Entry
No. 37 at 11).
parties’ arguments and responses are examined in detail
below, against the pleadings and the applicable law.
threshold issue is whether Gordon has alleged the
injury-in-fact needed for Article III standing and
subject-matter jurisdiction. See Rivera v. Wyeth-Ayerst
Labs., 283 F.3d 315, 319 (5th Cir. 2002) (“[W]e
must decide standing first, because it determines the
court’s fundamental power even to hear the
suit.”). Standing requires a plaintiff to plead an (1)
injury in fact (2) fairly traceable to the challenged conduct
of the defendant (3) that is likely to be redressed by a
favorable judicial decision. Spokeo, Inc. v. Robins,
136 S.Ct. 1540, 1547 (2016). “Standing of the
constitutional variety-the well-known injury, causation, and
redressability trifecta-is a question of subject matter
jurisdiction.” Norris v. Causey, 869 F.3d 360,
366 (5th Cir. 2017). “The party invoking federal
jurisdiction bears the burden of establishing these
elements.” Deutsch v. Annis Enters., Inc., 882
F.3d 169, 173 (5th Cir. 2018) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992)).
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.”
Singh v. RadioShack Corp., 882 F.3d 137, 151 (5th
Cir. 2018) (alterations omitted) (quoting Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976));
see Rivera, 283 F.3d at 319 (“[S]tanding is an
inherent prerequisite to the class certification
inquiry.” (quoting Bertulli v. Indep. Ass’n
of Cont’l Pilots, 242 F.3d 290, 294 (5th Cir.
2001))); see also Patel v. Facebook, Inc., No.
18-15982, 2019 WL 3727424, at *3–4 (9th Cir. Aug. 8,
2019). Gordon must allege facts supporting a plausible
inference that he has suffered an injury-in-fact fairly
traceable to Sig Sauer, and that a favorable judicial
decision would likely redress his injury.
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, 504 U.S. at 560).
“For an injury to be ‘particularized, ’ it
must affect the plaintiff in a personal and individual
way.” Id. (quoting Lujan, 504 U.S. at
560 n.1). “A ‘concrete’ injury must be
‘de facto’; that is, it must actually
exist.” Id. “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, 283 F.3d at 320 (alteration
omitted) (quoting Sierra Club v. Morton, 405 U.S.
727, 734–35 (1972)).
has alleged four injuries: (1) he stopped using his P320
after learning of the drop-fire issue; (2) he would not have
purchased a P320, or would have paid less for it, but for Sig
Sauer’s representations and warranties that the P320
was drop-safe; (3) his P320 has decreased in resale value,
even with the Voluntary Upgrade Program availability; and (4)
had he used the Voluntary Upgrade Program, he would have been
unable to use his P320 while Sig Sauer modified it. (Docket
Entry No. 34 at 3–4).
Sauer argues that these alleged injuries are insufficient for
standing because “Gordon received a functioning pistol
that has not manifested any defect, ” and because
“he received the benefit of his bargain, ” a
pistol that, according to Sig Sauer, has not drop-fired.
(Docket Entry No. 35 at 15–16). Gordon has not alleged
attempts to sell his pistol, precluding a claim for
out-of-pocket costs. Nor has he sought a fix under the
Voluntary Upgrade Program, precluding a claim for loss of
use. Sig Sauer contends that “Gordon may only assert
breach-of-contract, benefit-of-the-bargain standing based on
a defect that has manifested or that is inevitable.”
(Docket Entry No. 38 at 6 (quotation omitted)). Gordon
responds that he has alleged “quintessential economic
harm” allowing him to overcome the motion to dismiss.
(Docket Entry No. 37 at 15).
parties cite two Fifth Circuit cases-Coghlan v. Wellcraft
Marine Corp., 240 F.3d 449 (5th Cir. 2001), and
Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315
(5th Cir. 2002). A more recent Fifth Circuit precedent,
Cole v. ...