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05/15/2010 update In New York City oral argument was held before the
U.S. Court of Appeals for the Second Circuit on March 11, 2010 on Adventure Outdoors, Inc.’s appeal from the default
judgment and permanent injunction that had been entered against it by Judge Weinstein. Although the issues raised on
the appeal were whether the district court had personal jurisdiction over Adventure Outdoors, Inc., whether it had waived
the defense of lack of personal jurisdiction by not presenting a defense at trial, and whether the terms of the injunction
were improper, the Court of Appeals raised the issue of whether the district court had subject matter jurisdiction over this
case. The Second Circuit
ordered the parties to submit supplemental briefs addressing the issue of whether the Protection of Lawful Commerce in Arms
Act eliminates a court’s authority to hear qualified civil liability actions, which are defined as “a civil action
or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product,
or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or
penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third
party,” or instead provides a manufacturer or seller of firearms with a complete defense against such actions.
In addition, the Court of Appeals directed the parties to brief the issue of whether the allegations in the City’s amended
complaint that Adventure Outdoors, Inc. violated 18 U.S.C. §§ 922, 923, 924 and 1001 when it sold a pistol to a
private investigator hired by the City are sufficient to satisfy the requirements of the predicate exception to the PLCAA.
The predicate exception removes from the definition of a qualified civil liability action “an action in which a manufacturer
or seller of [firearms] knowingly violated a State or Federal statute applicable to the sale or marketing of [firearms], and
the violation was a proximate cause of the harm for which relief is sought.”
Adventure Outdoors, Inc. submitted its supplemental brief on April 5, 2010, in which it argued that the language in the PLCAA
stating that a “qualified civil liability action may not be brought in any Federal or State court” was designed
to divest courts of subject matter jurisdiction over such actions. It also argued that the City’s amended complaint
failed to satisfy the requirements for the predicate exception because there is no private right of action for violation of
18 U.S.C. §§ 922, 923, 924 and 1001 and because the sale of a pistol to the City’ private investigator was
not the proximate cause of any harm sustained by the City. The City submitted its supplemental brief on April 19, 2010.
The City argued that the PLCAA was only intended to provide a defense, not to divest courts of subject matter jurisdiction
over qualified civil liability actions because Congress did not explicitly state that it was intended to affect jurisdiction.
The City also argued that its allegations that Adventure Outdoors, Inc. violated 18 U.S.C. §§ 922, 923, 924 and
1001 when it sold handguns to various alleged straw purchasers was sufficient to satisfy the predicate exception to the PLCAA. The supplemental briefing requested
by the Court of Appeals has been completed and we are now waiting for its decision.
To
all who will listen and take the time to understand. There are people in this world who feel it's their responsibility to
protect you from yourself, by viewing you only as part of a group, with out consideration of you as an individual. I've always
understood, a person's rights end at the end of another’s nose. A thief lurks in the shadows awaiting the time to strike.
An honest man faces another and speaks his mind. I have lived my life as my father taught me. To be up front in all I do and
to learn my limitations as well as my strengths. I have not asked to be in this arena. In fact,I have been cast into it. I
am just one person who has for the last 31 years in business tried to be the best individual person and business man I know
how to be. I understand the months ahead will be long and stressful, but I promise, with Gods help, I will prevail.
Jay Wallace
President
Adventure Outdoors
Contact:
jaywallace@advout.com UPDATE
03/22/2010 The trip to United Sates Court of Appeals for the Second Circuit went well. It was
definitely a fresh breath of justice compared to Weinstein's court. We are going back in the next couple of months to answer
more questions from the three judge panel. Victory is near! UPDATE
03/08/2010 Off to New York City again ! The judges for the March
11 oral argument on Adventure Outdoors' appeal are Robert Sack
and Richard Wesley of the Second Circuit Court of Appeals and Richard
Eaton of the Court of International Trade. Judge Wesley, then on the New York
State Court of Appeals, wrote the decision in the Hamilton v. Beretta U.S.A. Corp. case,
which led to the reversal of Judge Weinstein's first decision against the firearms industry. General background
information on these judges from the courts' websites is as follows: Robert D. Sack has, since August 6, 1998, been a Judge of the United States Court of Appeals for the
Second Circuit with his chambers at 40 Foley Square. He took senior status on August 6, 2009. During his 33 years in practice,
he specialized in national and international press law. He was a frequent lecturer and writer on press law topics and is the
author of Sack on Defamation: Libel, Slander, and Related Problems (3d ed. 1999) and coauthor of Advertising and Commercial
Speech: A First Amendment Guide (1999). Most recently, his article, Protection of Opinion Under the First Amendment: Reflections
on Alfred Hill, "Defamation and Privacy Under the First Amendment," was published in the 100th Anniversary issue
of the Columbia Law Review. On May 1, 2008, Judge Sack was awarded the Federal Bar Council's Learned Hand Medal for excellence
in federal jurisprudence. Judge Sack was an officer and director of the William F. Kerby and Robert S. Potter Fund, which
assists in funding the legal defense of journalists abroad, and a member of the advisory boards of the Bureau of National
Affairs' Media Law Reporter and the ABA Forum Committee's Communications Lawyer. He is a member of the Board of Visitors of
the Columbia Law School, and was a member of the Board of Trustees of Columbia University Seminars on Media and Society, and
was Chairman of the National Council on Crime and Delinquency. He is also a Lecturer in Law at Columbia Law School. He is
a member of the American Bar Association, the Association of the Bar of the City of New York and the American Judicature Society.
He is a Fellow of the American Bar Foundation. After graduating from the University of Rochester in 1960 and Columbia Law
School in 1963, Judge Sack clerked for United States District Judge Arthur S. Lane, in the District of New Jersey. He later
became an associate and partner at Patterson, Belknap, Webb & Tyler (1964-1986) and a partner at Gibson, Dunn & Crutcher
(1986-1998), both in New York City. In 1974, he served as a Senior Associate Special Counsel to the United States House of
Representatives Impeachment Inquiry Staff. Richard C. Wesley is a Judge
of the United Sates Court of Appeals for the Second Circuit. At the time of his appointment in 2003, he was a Judge of the
New York Court of Appeals. Judge Wesley received his B.A. degree summa cum laude from the State University of New York at
Albany in 1971, and his J.D. degree from Cornell Law School in 1974. Judge Wesley engaged in the private practice of law from
the time of his admission to the New York Bar in 1975 until 1986. During three years of that period, 1979 until 1982, he also
served as assistant counsel and chief legislative aide to New York Assembly Minority Leader James L. Emery. In 1982, Judge
Wesley was himself elected to the Assembly - and was re- elected in 1984 - representing Livingston, Allegany and Ontario Counties.
In 1986, Judge Wesley was elected to a 14-year term as a Justice of the New York Supreme Court from the Seventh Judicial District.
He served as Supervising Judge of that district's criminal courts from 1991 to 1994. In 1994 he was appointed by Governor
Mario Cuomo to the Supreme Court Appellate Division, Fourth Department. In 1997, he was appointed a Judge of the New York
Court of Appeals by Governor George Pataki, a position he held until joining the Federal judiciary. Richard K. Eaton,
born in Walton, N.Y.; son of Paul F. Eaton and Frances Kellogg Eaton; B.A., Ithaca College 1970; J.D., Union University Albany
Law School 1974; Chief of Staff, United States Senator Daniel Patrick Moynihan 1983, 1991-93; associate attorney, Mudge Rose
Guthrie Alexander & Ferdon 1983-1991, partner 1993-95; partner Stroock & Stroock & Lavan 1995-99; assumed duties
as Judge of the United States Court of International Trade January 3, 2000. We are currently researching any decisions by these judges on
relevant issues, such as personal jurisdiction. UPDATE 02/03/2010 “The
case in which Adventure Outdoors has sued Mayor Bloomberg and others in the Georgia courts, remains bogged down in procedural
issues and legal challenges mounted by the mayor’s lawyers. A timely Notice of Appeal to the Georgia Court of Appeals has been filed, on the question
of whether the Georgia Anti-SLAPP law applies to the allegedly defamatory statements made by the mayor at the time he sued
Adventure Outdoors in 2006. The position of Adventure Outdoors is that the law does not apply to the situation presented
in this case, and we remain confident the appellate courts in Georgia will so hold as well – allowing our lawsuit to
proceed.”
Briefing
on Adventure Outdoors' appeal from the default judgment entered by Judge Weinstein was completed on January
22, 2010,
and oral argument is scheduled for March 11, 2010, before the U.S. Court of Appeals for the Second Circuit. The
injunction entered against Adventure Outdoors, which appointed a Special Master to monitor its sale of firearms, has been
stayed pending a decision on its appeal. In its appeal, Adventure Outdoors argues that the judgment and injunction entered
against it are void because the U.S. District Court for the Eastern District of New York did not have personal jurisdiction
over it pursuant to the New York long-arm statute and that the terms of the injunction are unconstitutionally vague. The City's primary argument
in opposition to the appeal is that Adventure Outdoors waived its right to appeal by not presenting a defense at trial, in
which Judge Weinstein had decided that he would deny Adventure Outdoors its right to a jury and serve as the finder of
fact. In its reply, Adventure Outdoors argues that because it had answered the City's complaint and preserved the issue
of personal jurisdiction, as well as fully completing discovery and all pre-trial activities, the City was not entitled to
judgment in its favor and still had to prove that it was entitled to the relief it sought and that the court had personal
jurisdiction over Adventure Outdoors. We fully expect the Second Circuit to rule in our favor before the end of the year. UPDATE 09/24/2009
Nothing new to report. All courts remain the same. Over three years into it and a couple more to go.
Keep checking in. I will post any new news as soon as I hear something. UPDATE
08/13/2009 The wheels of Justice do turn slow as we all are learning in this case. It has been over
3 years now since Bloomberg and his followers filed their law suite against Adventure Outdoors. Do not fear our gloves remain
high in the fight. Nothing has changed in New York as updated below a couple of months ago. In the Georgia case the City has
filed an Anti-Slapp motion. You can read the details of what this is at http://www.citmedialaw.org/legal-guide/anti-slapp-law-georgia.
Basically Anti-slapp is used to protect the little guy from large corporations and other powerful individuals shutting down
free speech. It is quit ironic the City would file such a motion in this case. The big and powerful City of New York and its
billionaire Mayor Bloomberg think they are the little guys and need to be protected by anit-slapp? The motion has been filed
and we await the Judges decision.
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UPDATE 08/13/2009 The wheels of Justice do turn slow as we all are learning in this
case. It has been over 3 years now since Bloomberg and his followers filed their law suite against Adventure Outdoors. Do
not fear our gloves remain high in the fight. Nothing has changed in New York as updated below a couple of months ago. In
the Georgia case the City has filed an Anti-Slapp motion. You can read the details of what this is at http://www.citmedialaw.org/legal-guide/anti-slapp-law-georgia. Basically Anti-slapp is used to
protect the little guy from large corporations and other powerful individuals shutting down free speech. It is quit ironic
the City would file such a motion in this case. The big and powerful City of New York and its billionaire Mayor Bloomberg
think they are the little guys and need to be protected by anit-slapp? The motion has been filed and we await the Judges decision. 06/30/2009 UPDATE "On June 17, 2009, the City filed a motion in the U.S. Court of Appeals for the Second
Circuit seeking to dismiss Adventure Outdoors, Inc.'s appeal for lack of appellate jurisdiction. The City argues that
by not presenting a defense at a bench trial, Adventure Outdoors, Inc. waived its right to appeal the default judgment
entered against it, as well as the issue of whether the district court had personal jurisdiction over it. Adventure
Outdoors, Inc. filed its opposition to the City's motion to dismiss on June 29, 2009, arguing that because it had filed
an answer to the City's Amended Complaint and fully responded to the City's discovery requests, the City was still required
to prove at trial that it was entitled to the relief it is seeking, even if Adventure Outdoors, Inc. did not present
a defense. The City will have an opportunity to file a reply in further support of its motion to dismiss the appeal,
after it will be before the court for a decision. The court may allow oral argument or decide the motion on the papers.
In addition, the court could defer a ruling on the motion to dismiss to the panel that will decide the appeal. Once
the court has ruled on the motion to dismiss, Adventure Outdoors, Inc. will have thirty days to submit its appellate
brief and joint appendix." 04/23/2009 UPDATE
In the City of New York v. A-1 Jewelry & Pawn, Inc. case, Judge Weinstein
granted default judgment on March 24, 2009 against the last defendant resisting the City’s efforts to regulate out-of-state
retail firearm dealers, Adventure Outdoors, Inc. The basis for the entry of default judgment against Adventure Outdoors, Inc.
was its decision not to present a defense at trial after Judge Weinstein decided, six days before jury selection was scheduled
to begin, that Adventure Outdoors, Inc. did not have a right to a trial by jury and that he would serve as the finder of fact.
Adventure Outdoors, Inc. believed that it was a foregone conclusion that the result of a trial in which Judge Weinstein served
as the finder of fact would be a judgment in favor of the City based on Judge Weinstein’s earlier written decisions
in the case and the fact that he had concluded that each and every firearm manufacturer and distributor defendant in the NAACP
v. A.A. Arms, Inc. case was responsible for creating a public nuisance in the City of New York, even though an advisory
jury had found that the majority of them had not and had been unable to reach a verdict as to the remaining defendants. Although
Judge Weinstein entered an injunction against Adventure Outdoors, Inc., appointing a special master to monitor its sales,
he stayed the entry of the injunction pending the completion of Adventure Outdoors, Inc.’s appeal to the Second Circuit,
which was filed on March 30, 2009. On the Georgia side the case was formally transferred back to Cobb Superior Court on
March 12th to Judge Kreeger who was the State Court Judge handling the case over 2 years ago. Bloomberg's lawyers filed an
answer and a motion to dismiss (on anti-slapp grounds), on March 31st. This action was very predictable as their options are
running thin. We are finalizing our draft response, which will be filed on or before April 30th. We are very confident in
prevailing over their motion. The next step will be filling for discovery. We get to do it all over again, except this time it’s
in Georgia! Mayor Bloomberg says on his weekly radio address as prepared for delivery
on 1010 WINS News Radio:http://www.silive.com/news/index.ssf/2009/01/mayor_nyc_enters_new_year_with.html "Take crime for example. Our police officers drove crime down another 4 percent in 2008, bringing our 7-year
decline to nearly 30 percent. 2008 also brought us a major victory in the fight against illegal guns. We settled the final
lawsuit against a group of out-of-state gun dealers whose illegal practices allowed guns to end up in the hands of criminals.
As part of the settlements, all of those dealers have now agreed to reform their sales practices - and that's going to make
our streets safer for police officers and all New Yorkers. He hasn't settled any lawsuit with this dealer and I
have not agreed to reform any sales practices with him. The streets of NYC have never been made unsafe for police
officers and New Yorkers by Adventure Outdoors ! I care more and know more about proper sales practices than Michael Bloomberg! 12/19/08 UPDATE . Big News! We are very happy with this opinion. We have not heard anything else from Judge Weinstein's Court. . 11/10/08 UPDATE The City asked for an appeal in the 11th circuit.
On September 16th we and the City stated our case before a three Judge panel. The law is on our side. The 11th
circuit will either send us back to Judge Forrester in federal court or send us back to state court in Cobb County. I could
not tell which way the court was leaning. The proceeding was very cut and dry. Hope to hear an answer in the next couple of
months. In New York
the City has filed a request for default judgment after being given a dead line by Magistrate Judge Pollock. I feel Judge
Weinstein will most likely rubber stamp what ever the City says about us and we will appeal on grounds of lack of jurisdiction
to the 2nd circuit. I will post more as soon as I hear something from either court. Thanks for all the kind words
and donations. Adventure Outdoors remains the last of 27 dealers standing up for your rights. We will not falter, we will
not fail, and we will remain steadfast until victory. 01/05/2009 UPDATEAugust 22,2008 NYC, foes split over effect of gun shop lawsuits By
DAVID B. CARUSO Its official now, Adventure Outdoors is the last store standing and fighting the on slot of Mayor
Bloomberg / Mayor’s Against Gun Violence and the City of New York. It is more important than ever for all freedom loving
Americans to join in this battle. Now they can focus all of their 5 law firms on Adventure Outdoors. Please continue to keep
us in your prayers and spread the word about this important case. July 25, 2008 New page added
today. Look to the upper right side of this page for a drop down window. The page is called All About ATF Traces. This page
will be used to post trace related information. There is a sharp contrast on how traces should be handled. July 21, 2008 UPDATE The City
has done nothing in regards to pursuing a default judgment as of this date. We patiently await their only move. The Georgia
front has taken a positive move forward. The Eleventh Circuit Court of Appeals has requested that each party file a supplemental
appellate brief of no more than ten pages by July 18th, which we have done, addressing the issue of whether the
court has subject matter jurisdiction over this case. We have believed from the beginning this is not a Federal case and will
welcome it back to Cobb County Georgia. The City has done everything in its power to have the case moved to Federal Court
in NYC with Judge Weinstein. We will be back in court on September 16th to find out where the case will be tried. For
May & June Updates go to the May Court / June Updates 08 Page on top right.
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