Case 1:21-cv-11269-FDS Document 67 Filed 11/22/21 Page 35 of 58
In this case, all but one of the defendants are “manufacturers,” not “dealers.” The complaint does not allege that any manufacturer is a licensed firearms “dealer” as required to be a “seller” under § 7903(6). The only “seller” defendant is Witmer, which the Complaint alleges is engaged in the “gun-wholesaling business.” Compl. ¶ 41. Thus no defendant other than Witmer can face a claim for negligence per se under § 7903(5)(A)(ii). In any event, the Complaint does not satisfy the “negligence per se” exception for other reasons. Negligence per se applies only where a seller “violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.” RESTATEMENT (THIRD) OF TORTS § 14 (2010). Here, this claim fails because, as noted above, the complaint fails to allege facts plausibly showing that Witmer (or any other defendant) actually violated any particular statute. Moreover, Mexico does not fall within the “class of persons” that any of the cited statutes were designed to protect. Congress did not enact these federal firearms laws to protect foreign sovereigns, and thus Mexico does on fall within any discrete protected class of individuals. See Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 904-05 (10th Cir. 2005) (asking whether “the policy behind the legislative enactment will be appropriately served by using the policy to impose and measure civil damage liability”). Governments do not fall within the “class of persons” that safety statutes protect. See, e.g., Town of Plainville v. Almost Home Animal Rescue & Shelter, Inc., 187 A.3d 1174, 1181 (Conn. App. Ct. 2018) (town cannot bring negligence per se claim against abusive animal shelter for added municipal expense tending to mistreated animals). That this case involves a foreign government makes it even easier. The complaint contains nothing more than a conclusory assertion that Mexico “is within the class intended to be protected by the statutes.” Compl. ¶ 524. But that is implausible on its face, and, in any event, fails to allege any facts sufficient to satisfy federal pleading standards. See Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). It therefore fails as a matter of law. 26
