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A federal judge has denied a motion to consolidate two lawsuits against the manufacturer and distributors of the high-capacity magazine used in the 2021 FedEx shooting in Indianapolis.
The motion was “premature,” New York Western District Court Judge Elizabeth Wolford ruled, because the defendants in the case haven’t been served and therefore haven’t had a chance to potentially oppose the motion.
Wolford denied the motion without prejudice on Aug. 31.
Victims and family members of victims from the shooting filed their lawsuit — Gurinder Singh Bains, et al. v. American Tactical Inc., et al., 6:23-cv-06208 — in April.
Plaintiffs then sought to consolidate the case with Johal, et al., v. American Tactical, Inc., et al., 6:23-cv-6382.
Defendants are the same in both cases: Schmeisser GmbH, American Tactical and 365 Plus.
At issue is Schmeisser, the German manufacturer of the magazine.
According to a brief supporting the motion to consolidate, plaintiffs were advised that some German states, including the one in which Schmeisser is located, had been rejecting service via the Hauge Convention if the German state interprets the complaint to contain language that has the potential for the plaintiffs to recover money subject to a split-recovery statute.
An amended complaint in the Bains case, also filed Aug. 31, says the plaintiffs “do not seek to recover punitive damages against Defendant Schmeisser under any law which subjects such damages to a split recovery.”
But Wolford ruled consolidation would be inappropriate.
“While the Court understands the motives for the pending motion — namely to be able to file an amended complaint so that service may be effectuated on one of the defendants — it concludes that it would be inappropriate to allow consolidation without the defendants having an opportunity to be heard and potentially oppose the motion,” the order says.
In seeking to hold gun accessory companies responsible for the way someone used their product, the lawsuit is likely facing an uphill climb.
Still, experts told Indiana Lawyer in May that focusing on an accessory of the gun could become more common and that the New York venue may play to the plaintiffs’ advantage because of a recently passed state law that allows civil lawsuits to be brought against gun manufacturers and dealers.
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