                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                 KING ZAVIER JAMES, Plaintiff/Appellant,

                                        v.

               WILD WEST PAWN LLC, Defendant/Appellee.

                             No. 1 CA-CV 16-0278
                              FILED 5-9-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-017669
             The Honorable J. Richard Gama, Judge, Retired

                      VACATED AND REMANDED


                                   COUNSEL

Begam, Marks & Traulsen, P.A., Phoenix
By Richard P. Traulsen
Counsel for Plaintiff/Appellant
Sanders & Parks, P.C., Phoenix
By J. Steven Sparks
Counsel for Defendant/Appellee

Knapp & Roberts, P.C., Scottsdale
By David L. Abney
Co-Counsel for Amici Curiae Arizona Association for Justice/Arizona Trial
Lawyers Association

Miller, Pitt, Feldman & McAnally, P.C., Tucson
By Stanley G. Feldman
Co-Counsel for Amici Curiae Arizona Association for Justice/Arizona Trial
Lawyers Association



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined.


N O R R I S, Judge:

¶1             Plaintiff/Appellant King Zavier James appeals from a
judgment in favor of Defendant/Appellee Wild West Pawn LLC (“Wild
West”) based on the superior court’s ruling that under Arizona choice-of-
law principles, Virginia law, and not Arizona law, applied to James’s
negligence claim against Wild West. In granting summary judgment in
favor of Wild West, the superior court did not address, however, whether
federal law preempted Arizona choice-of-law principles and required the
court to apply Virginia law. Because the superior court should have first
determined the applicability of federal law, and we cannot determine this
issue as a matter of law on the record before us, we vacate the superior
court’s judgment and remand for further proceedings consistent with this
decision. See infra ¶ 12.

            BACKGROUND AND PROCEDURAL HISTORY

¶2            Dana Gonder operated Wild West, a pawn shop located in
Arizona. In January 2011, Gonder used the website GunBroker.com to list a
Heckler & Koch .40 caliber semi-automatic pistol for sale. A Virginia
resident purchased the pistol from Wild West through the website.



                                       2
                      JAMES v. WILD WEST PAWN
                         Decision of the Court
¶3            Under federal law, firearms dealers are required to obtain a
license from the United States Attorney General. 18 U.S.C.A. § 923(a) (West
2004). In addition to licensing requirements, under federal law only
federally licensed firearms dealers are permitted to ship and receive
firearms. 18 U.S.C.A. § 922(a) (West 2015). Consistent with these
requirements, Gonder, through Wild West, a federally licensed firearms
dealer, packaged and shipped the pistol through the United States Postal
Service to the Camp Allen Marine Corps Exchange (the “Marine Corps
Exchange”) in Virginia, also a federally licensed firearms dealer, on behalf
of the Virginia buyer.

¶4             James, an employee at the Marine Corps Exchange, took the
pistol out of the package shipped by Wild West and examined it but did not
“clear” the pistol, “rack” the pistol, or “drop” the magazine. According to
James, he injured his hand when his index finger slipped into the trigger
guard area, landed on the trigger, and caused the pistol to discharge (the
“accident”). James sued Wild West for negligence in Arizona, alleging Wild
West “negligently, recklessly, and with a conscious indifference to a
substantial risk of serious harm to others, shipped [a] semi-automatic pistol
with a live round in the chamber.”

¶5            Wild West moved for partial summary judgment, arguing
that under Arizona choice-of-law principles, Virginia’s contributory
negligence law should govern James’s negligence claim. James cross-
moved for partial summary judgment, arguing that under Arizona choice-
of-law principles, Arizona’s contributory negligence and comparative fault
law (collectively “contributory negligence”) should apply. In making this
argument, James asserted Virginia had little interest in the matter because
“the injury occurred within a military exchange on a military base, territory
under the Federal Government’s jurisdiction and not under the jurisdiction
of the State of Virginia.” James did not, however, provide any supporting
evidence for that statement.1

¶6            Wild West responded to James’s argument regarding the
place of his injury by arguing 28 U.S.C.A. § 5001 (West 2014)2 preempted


              1In
                his summary judgment briefing, James alleged Wild West
shipped the pistol to a military exchange on the base “at which the
purchaser was stationed at that time.”

              2Wild  West cited 16 U.S.C.A. § 457 in its motion papers. That
law is now codified, without substantial change, at 28 U.S.C.A. § 5001. Thus,
we cite the current version of the statute.


                                     3
                       JAMES v. WILD WEST PAWN
                          Decision of the Court
Arizona choice-of-law principles and required the superior court to apply
Virginia law to James’s negligence claim. Section 5001 provides as follows:

              In a civil action brought to recover on account
              of an injury sustained in a place . . . [subject to
              the exclusive jurisdiction of the United States
              within a State], the rights of the parties shall be
              governed by the law of the State in which the
              place is located.

James did not respond to Wild West’s argument that 28 U.S.C.A. § 5001
required the superior court to apply Virginia law in his reply in support of
his cross-motion for partial summary judgment.

¶7           Applying Arizona choice-of-law principles, the superior
court agreed with Wild West that Virginia’s contributory negligence law
applied to James’s negligence claim and granted its motion for partial
summary judgment. The superior court did not address Wild West’s
argument that 28 U.S.C.A. § 5001 required it to apply Virginia law.

¶8            After the superior court ruled Virginia law applied, Wild
West moved for summary judgment, arguing James would not be entitled
to a recovery under Virginia law. Given the superior court’s ruling on the
choice-of-law issue, James agreed he would not be entitled to a recovery
under Virginia law. Accordingly, the superior court granted Wild West’s
motion and entered judgment in its favor.

                               DISCUSSION

¶9            On appeal, James and Wild West dispute whether, under
Arizona choice-of-law principles, the superior court correctly ruled that
Virginia law, rather than Arizona law, governed James’s negligence claim.
Before addressing Arizona choice-of-law principles, however, the superior
court should have first determined whether, as Wild West argued, 28
U.S.C.A. § 5001 required the court to apply Virginia law to James’s
negligence claim.

¶10             Under 28 U.S.C.A. § 5001, if an injury occurs on land “subject
to the exclusive jurisdiction of the United States,” (a “federal enclave”) a
trial court is required to apply the law of the state where the federal enclave
is located. See Vasina v. Grumman Corp., 644 F.2d 112 (2d Cir. 1981) (applying
Oregon law to a negligence claim that arose from a plane crash that
occurred on a federal enclave in Oregon). Under 28 U.S.C.A. § 5001, federal
jurisdiction over the site of the injury must be exclusive; concurrent



                                      4
                      JAMES v. WILD WEST PAWN
                         Decision of the Court
jurisdiction is insufficient. See Pratt v. Kelly, 585 F.2d 692 (4th Cir. 1978)
(deed conveying site of injury to the United States that reserved
“jurisdiction in all civil cases” to Virginia did not create federal enclave
under 28 U.S.C.A. § 5001).

¶11          Although, as discussed, see supra ¶ 5, James argued in his
moving papers his injury occurred in a military exchange on a military base
which was territory under the jurisdiction of the federal government, and
not Virginia, the record contains no evidence addressing whether the
federal government’s jurisdiction was exclusive. And, indeed, the record
contains some evidence the federal government and Virginia may have
shared jurisdiction, as both Norfolk Police and Naval Base Police
responded to the accident. Further, Wild West shipped the pistol to a street
address in Norfolk, Virginia.

¶12           On this record, we cannot determine whether James sustained
an injury on a federal enclave for purposes of 28 U.S.C.A § 5001, or even
whether a genuine dispute exists regarding this issue. We thus vacate the
judgment entered by the superior court in favor of Wild West and remand
to the superior court to determine, based on an adequately developed
record, whether James sustained an injury in a place “subject to the
exclusive jurisdiction of the United States” for purposes of 28 U.S.C.A. §
5001.

                              CONCLUSION

¶13          For the foregoing reasons, we vacate the judgment of the
superior court and remand for further proceedings consistent with this
decision.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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