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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

VINCENT DOYLE, BRANDON SAENZ, 

DAVID MCKEE, RANDI ROGERS, and 

TASIA WILLIAMS,

Civil Action No. 3:22-CV-01536-K 

Plaintiffs,

v.

COMBINED SYSTEMS, INC. and

PENN ARMS,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiffs Vincent Doyle, Brandon Saenz, David McKee, 

Randi Rogers, and Tasia Williams’s Motion for Leave to File Third Amended Complaint (the “Motion for Leave”), Doc. No. 43, and Plaintiffs’ Supplemental Brief in 

Support of Plaintiffs’ Motion for Leave to File Third Amended Complaint. Doc. 

No. 45. Upon consideration of the same, the Court GRANTS the Motion for Leave 

in part and DENIES it in part. Plaintiffs propose only negligible changes to their strict 

liability marketing defect and negligent and false marketing (negligent failure to warn) 

claims, which the Court already dismissed. None of those changes is responsive to the 

Court’s order of dismissal, so the Court DISMISSES those claims with prejudice. 

Plaintiffs propose more extensive changes to their remaining claims, and Defendants 

Combined Systems, Inc. and Penn Arms do not oppose amendment of those claims. 

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Without expressing an opinion on their merits, the Court will permit their amendment 

as proposed.

I. BACKGROUND

Plaintiffs allegedly suffered injuries when police officers shot them using rubber 

bullets and launchers sold by Defendants. Doc. No. 43-1 ¶¶ 21–37. Plaintiffs previously sought to hold Defendants liable for the injuries under the Texas Deceptive Trade 

Practices Act (the “DTPA”) and under strict liability marketing defect, negligent failure 

to warn, and implied warranty of fitness theories. Doc. No. 14 ¶¶ 43–63.

On September 11, 2023, the Court issued a thirty-five page memorandum opinion and order dismissing Plaintiffs’ claims in their entirety without prejudice. Doc. 

No. 40. The Court first found that the Protection of Lawful Commerce in Arms Act 

(“PLCAA”) barred Plaintiffs’ strict liability marketing defect and negligent failure to 

warn claims. Pub. L. No. 109-92, 119 Stat. 2095 (2005) (codified at 15 U.S.C. §§ 

7901–7903); Doc. No. 40 at 19. The Court also found that Plaintiffs’ warranty and 

DTPA claims failed on the merits.

In the interest of providing Plaintiffs guidance if they sought to amend their 

claims, the Court provided additional analysis. Doc. No. 40 at 27. The Court explained that “Plaintiffs’ strict liability marketing defect claim, though barred by the 

PLCAA, is otherwise adequately pled.” Id. at 30. The Court came to a different conclusion with respect to Plaintiffs’ negligent failure to warm claim, dismissing the claim 

as “barred by the PLCAA” and for “failure to plausibly allege duty or causation.” Id. 

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at 31. As the Court observed, Plaintiffs confusedly alleged that Defendants breached 

a duty to warn the general public about the dangers of Defendants’ products and then 

argued in their briefing that the duty was to warn the police officers who shot Plaintiffs. 

Id. at 30. The Court found that Plaintiffs had not established that any duty ran specifically to them regardless of the theory of duty advanced. Id. Assuming to the contrary that Plaintiffs’ theory of a duty running to the general public was viable, the Court 

also expressly found that Plaintiffs had not plausibly alleged how Defendants’ purported breach of a duty to warn the general public about their products caused Plaintiffs’ harm. Id. at 31. The Court noted that Plaintiffs apparently had no choice in the 

use of Defendants products against them. Id.

Plaintiffs subsequently submitted their pending Motion for Leave to file a third 

amended pleading. Doc. No. 43. Plaintiffs propose a number of changes to the warranty and DTPA claims the Court dismissed. Doc. No. 43-2 ¶¶ 53–64. Although 

Plaintiffs also seek to reassert their strict liability marketing defect and negligent failure 

to warn claims, Plaintiffs do not propose to amend any of the allegations supporting 

the strict liability claim, and Plaintiffs’ sole proposed amendment to their negligent 

failure to warn claim is the allegation that the duty to warn Defendants purportedly 

owed to the general public is a duty “to warn of and make safe the dangers created by 

their products.” Id. ¶¶ 43–52.

Concerned that Plaintiffs had not seriously attempted to remedy the issues the 

Court identified with Plaintiffs’ strict liability marketing defect and negligent failure to 

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warn claims, the Court ordered Plaintiffs to file a supplemental brief explaining why 

their proposed allegations state a claim under applicable law, including the Court’s 

dismissal order. Doc. No. 44 at 2. The Court warned Plaintiffs that it was inclined 

deny them leave to amend their strict liability and negligent failure to warn claims and 

to dismiss those claims with prejudice. Id. at 1–2. Plaintiffs filed a supplemental brief 

in response. Doc. No. 45.

II. DISCUSSION

While the Court appreciates the helpful clarification of Plaintiffs’ thinking set 

forth in their supplemental briefing, the Court remains convinced that the Plaintiffs’ 

proposed amendments are impermissible. In its dismissal order, the Court unequivocally stated that the PLCAA bars Plaintiffs’ strict liability marketing defect and negligent failure to warn claims. Doc. No. 40 at 30–31. Plaintiffs ignore this holding with 

respect to their negligent failure to warn claim, suggesting that the Court relied solely 

on deficiencies in the merits of Plaintiffs’ pleading to dismiss the claim. Doc. No. 45 

at 2. Plaintiffs pay lip service to the Court’s holding with respect to their strict liability 

marketing defect claim, contending that they did not need to amend the claim because 

the Court stated that, “though barred by the PLCAA, [the claim] is otherwise adequately pled.” Id. That is not a credible interpretation of the Court’s order. Plaintiffs

wisely stop short of suggesting that their proposed allegations, which are unchanged or 

nearly unchanged from the ones the Court considered when it dismissed their claims, 

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can survive the application of the PLCAA. Plaintiffs also do not contend that they can 

amend their allegations to bring them within exceptions to the PLCAA.

The Court finds Plaintiffs’ attack on its analysis of the merits of Plaintiffs’ negligent failure to warn claim similarly unpersuasive. Plaintiffs candidly admit that they 

“did not amend [the claim] significantly because they believe they adequately pled” 

the claim. Id. 

Attempting to supply the valid duty to warn the Court found missing in Plaintiffs’ nearly-identical second amended pleading, Plaintiffs contend in their supplemental brief that Defendants had a duty to warn the general public about their products through their police officer customers. Id. at 2–3. According to Plaintiffs, this 

duty arises from Alm v. Alcoa, 717 S.W.2d 588, 591 (Tex. 1986). Setting aside the fact 

that Plaintiffs have never pled and never filed a proposed complaint pleading that Defendants were obliged to warn the general public about their products through intermediaries, the Court disagrees that Alcoa recognizes a duty compelling Defendants to 

warn the general public about their products. The question before the court in Alcoa 

was whether the defendant had a “duty to warn consumers,” and the court answered 

that the defendant did, but the defendant might be able to discharge the duty by warning downstream manufacturers instead. Id. at 589, 592. Neither Plaintiffs nor the 

public writ large are “consumers”—or even users—of Defendants products. As Plaintiffs emphasize in their supplemental brief, third parties use the products “on the Plaintiffs.” Doc. No. 45 at 5 (emphasis in original). 

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The Court likewise declines to disturb its holding that Plaintiffs failed to plausibly plead causation based on allegations that Plaintiffs have not meaningfully amended. 

In their briefing, Plaintiffs simply allege that Defendants’ conduct caused their harm, 

but that is not enough; Plaintiffs must allege that Defendants’ negligent conduct—their 

purported breach of a duty to Plaintiffs—caused Plaintiffs’ harm. See Gen. Motors Corp. 

v. Saenz ex rel. Saenz, 873 S.W.2d 353, 357 (Tex. 1993) (duty to warn ran to users of 

product, so causation analysis depended on the effect an allegedly inadequate warning 

had on users); Doe v. Boys Clubs, 907 S.W.2d 472, 477 (Tex. 1995) (assuming a duty 

to investigate personnel, causation depended on the consequences of defendant’s alleged failure to investigate). Plaintiffs’ theory of duty does not match their theory of 

causation. Plaintiffs’ theory of duty is that Defendants should have warned the general 

public about the dangers of their products. Doc. No. 45 at 5–6. Plaintiffs’ theory of 

causation is that Defendants should have warned their officer customers as a means of 

discharging their duty to warn the general public, which purportedly would have taught 

the officers not to shoot Plaintiffs. Id. Defendants’ alleged wrong was not their purported failure to warn the officers—the key element in their theory of causation—but 

their purported failure to warn the public—through the intermediation of the officers, 

as Plaintiffs now suggest, or otherwise. The Court reiterates its conclusion that any 

wrong Defendants committed by failing to warn the general public about the dangers 

of their products did not plausibly cause Plaintiffs’ harm since police officers, not the 

public, controlled the use of the products on Plaintiffs. Doc. No. 40 at 31.

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III. CONCLUSION

The Court has carefully considered the factors favoring and disfavoring Plaintiffs’ proposed amendment. SGK Props., L.L.C. v. United States Bank Nat’l Ass’n, 881 

F.3d 933, 944 (5th Cir. 2018); Aldridge v. Miss. Dep’t of Corr., 990 F.3d 868, 878 (5th 

Cir. 2021). Having done so, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion for Leave to amend their pleading. The Court concludes that Plaintiffs 

have not seriously attempted to cure the deficiencies the Court identified in their pleading of their strict liability marketing defect and negligent failure to warn claims and 

that Plaintiffs’ proposed amendments are futile. Ho-Huynh v. Bank of Am., N.A., 2014 

WL 12599510, at *5 (S.D. Tex. Nov. 14, 2014). The Court DISMISSES Plaintiffs’ 

strict liability marketing defect and negligent and false marketing (negligent failure to 

warn) claims with prejudice. The Court permits Plaintiffs to make unopposed amendments to their remaining claims without expressing any opinion on their merits. Plaintiffs SHALL FILE their proposed amended complaint, revised to exclude the dismissed 

claims, no later than seven days after the entry of this order. The ordinary deadlines 

shall apply to Defendants’ answer or motion to dismiss the pleading Plaintiffs file.

SO ORDERED.

Signed October 30th, 2023.

____________________________________

ED KINKEADE

UNITED STATES DISTRICT JUDGE

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