Rivers v. Remington Arms Company, LLC et al
ORDER AND REASONS granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim. Signed by Judge Lance M Africk on 2/7/2018. (blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REMINGTON ARMS COMPANY, LLC ET AL.
ORDER & REASONS
Before the Court is a motion to dismiss for failure to state a claim filed by
defendants Remington Arms Company, LLC (“Remington”), Sporting Good
Properties, Inc. (“SGP”), and E.I. du Pont De Nemours & Co. (“DuPont”). For the
following reasons, the motion is granted in part and denied in part.
On December 21, 2016, plaintiff Riley Rivers (“Rivers”) was handling a
Remington 700 rifle equipped with an X-Mark Pro (“XMP”) trigger, when the rifle
allegedly discharged despite the safety mechanism being engaged.1 The shot caused
serious injury to Rivers’ foot.2
On December 12, 2017, Rivers filed the present lawsuit asserting claims under
the Louisiana Products Liability Act3 (“LPLA”) and the Louisiana Unfair Trade
R. Doc. No. 1 ¶ 13.
See id. at ¶ 14.
3 Id. at 17–21.
Practices Act4 (“LUTPA”). The complaint also makes passing references to fraud5
and civil conspiracy.6
With respect to the LPLA, Rivers alleges design defect,7 manufacturing defect,8
inadequate warning, 9 and express warranty claims.10 Under the LUTPA, Rivers
claims that Remington, SGP, and DuPont suppressed information regarding the
alleged defects and failed to widely publicize said information, creating danger to the
rifles’ users.11 Rivers’ LUTPA claim includes a demand for treble damages and
Remington, SGP, and DuPont now move to dismiss all of Rivers’ claims against
them. They argue that Rivers’ LUTPA claim, as well as any claim he may have
asserted for fraud and civil conspiracy, are barred by the LPLA’s exclusivity
provision. They further maintain that Rivers has failed to sufficiently plead a claim
under the LPLA.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a district court to
dismiss a complaint, or any part of it, when a plaintiff has not set forth well-pleaded
factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly,
Id. at ¶ 22–24.
Id. at ¶ 6, 10.
6 Id. at ¶ 12.
7 Id. at ¶ 18.
8 Id. at ¶ 19.
9 Id. at ¶ 20.
10 Id. at 21.
11 Id. at 23.
12 Id. at 24.
550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A
plaintiff’s factual allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In other words, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).
On a Rule 12(b)(6) motion to dismiss, a court limits its review “to the complaint,
any documents attached to the complaint, and any documents attached to the motion
to dismiss that are central to the claim and referenced by the complaint.” Lone Star
Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); see also
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). In assessing the complaint,
the Court must accept all well-pleaded factual allegations as true and liberally
construe all such allegations in the light most favorable to the plaintiff. Spivey, 197
F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). Where
“the complaint ‘on its face show[s] a bar to relief,’” then dismissal is the appropriate
course. Cutrer v. McMillan, 308 Fed. App’x. 819, 820 (5th Cir. 2009) (quoting Clark
v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
The LPLA “establishes the exclusive theories of liability for manufacturers for
damages caused by their products.” La. Rev. Stat. § 9:2800.52.
plaintiff “may not recover from a manufacturer for damage caused by a product on
the basis of any theory of liability that is not set forth” in the LPLA. Id. This
exclusivity “is well-established in both the statute and its attendant case law.” Bracey
v. C.B. Fleet Holding Co., Inc., No. 6-3238, 2006 WL 3733808, at *2 (E.D. La. Dec. 15,
2006) (Africk, J.); see also Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1248
(5th Cir. 1997) (“Louisiana law eschews all theories of recovery in this case except
those explicitly set forth in the LPLA.”).
Rivers’ claims under the LUTPA and any claims for fraud and civil conspiracy,
therefore, must be dismissed. See Pramann v. Janssen Pharmaceuticals, Inc., No. 1612413, 2017 WL 58469, *2 (E.D. La. Jan. 5, 2017) (Africk, J.) (dismissing all claims
outside of the LPLA); Bracey, 2006 WL 3733808, at *2 (rejecting as “unpersuasive”
plaintiffs’ arguments that, because the LUTPA offers remedies distinct from those
available under the LPLA, LUTPA claims should be allowed to proceed alongside
LPLA claims); Ingram v. Bayer Corp., No. 2-352, 2002 WL 1163613, at *2 (E.D. La.
May 30, 2002) (Porteous, J.) (“Plaintiff’s causes of action . . . are limited to those
expressly available under the LPLA. The LPLA does not allow the plaintiff to recover
concealment, conspiracy, suppression and willful, wanton and reckless conduct
against [a defendant].”).
Likewise, Rivers’ claims for punitive damages and attorney’s fees must fail.
See Cantu v. C.B. Fleet Holding Co., Inc., No. 6-2168, 2007 WL 689566, at *2 (W.D.
La. Mar. 1, 2007) (Minaldi, J.) (“The LUTPA is penal in nature in that it allows the
recovery of treble damages and attorney’s fees. Punitive damages are not recoverable
under the LPLA.”); see also Amer. Homes. Assur. Co. v. Oceaneering Int’l, Inc., 609
Fed. App’x 171, 174 (5th Cir. 2015) (noting that the LPLA “explicitly prohibits the
recovery of attorney’s fees”); La. Rev. Stat. § 9:2800.53(5) (“Attorneys’ fees are not
recoverable under this Chapter.”).
Rivers’ only remaining claims fall under the LPLA. Remington, SGP, and
DuPont argue that these claims should also be dismissed, because Rivers’ allegations
are factually inadequate to state a valid claim under the statute.
To succeed on a claim under the LPLA, a plaintiff must prove four elements:
(1) that the defendant is a manufacturer of the product; (2)
that the claimant's damage was proximately caused by a
characteristic of the product; (3) that this characteristic
made the product “unreasonably dangerous”; and (4) that
the claimant's damage arose from a reasonably anticipated
use of the product by the claimant or someone else.
Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 261 (5th Cir. 2002); see also La. Rev.
Stat. § 9:2800.54(A). “The plaintiff must carry his burden of showing that a product
was unreasonably dangerous through one of four theories: (1) defective design; (2)
defective construction or composition; (3) because of an inadequate warning; or (4)
because of a breach of express warranty.” Flagg v. Elliot, No. 14-852, 2014 WL
3715127, at *4–5 (E.D. La. June 26, 2014) (Feldman, J.); see La. Rev. Stat. §
9:2800.54(B). Rivers’ asserts claims under all four of the aforementioned theories.
Liberally construing the allegations in the complaint in Rivers’ favor, the Court
concludes that Rivers has met his pleading burden with respect to his manufacturing
defect and inadequate warning claims. However, he has failed to allege sufficient
facts to support his design defect and express warranty claims.
To recover under the LPLA on a theory of manufacturing defect, a plaintiff
must show that:
(1) the product is unreasonably dangerous because it
deviated in a material way from the manufacturer’s
specifications or performance standards; (2) the defect
existed at the time the product left the manufacturer’s
control; and (3) the defect was a proximate cause of the
Thibodeaux v. Ford Motor Co., 54 Fed. App’x 591, 591 (5th Cir. 2002) (citing La. Rev.
Stat. §§ 9:2800.54, 9:2800.55).
Rivers’ complaint alleges that “the rifle was unreasonably dangerous in
construction or composition because, at the time it left the control of the
specifications or performance standards and/or from otherwise identical rifles
manufactured by [d]efendants.”13 Rivers further contends that the composition defect
relates to the XMP trigger, which may have been manufactured using excess bonding
agent and which can, under certain circumstances, unintentionally discharge.14
Hence, Rivers has identified an allegedly defective condition in the composition of the
rifle, and he has asserted that this condition proximately caused his injury by causing
the rifle to discharge without the trigger being pulled and with the safety mechanism
engaged. These allegations suffice to state a manufacturing defect claim under the
LPLA. Dismissal of such a claim would, therefore, be inappropriate.
Id. at 19.
Similarly, Rivers has pled a valid inadequate warning claim. Under the LPLA,
A manufacturer of a product who, after the product has left
his control, acquires knowledge of a characteristic of the
product that may cause damage and the danger of such
characteristic, or who would have acquired such knowledge
had he acted as a reasonably prudent manufacturer, is
liable for damage caused by his subsequent failure to use
reasonable care to provide an adequate warning of such
characteristic and its danger to users and handlers of the
La. Rev. Stat. § 9:2800.57.
According to Rivers’ complaint, Remington published materials in which it
admitted that some of the XMP triggers might have been manufactured using excess
bonding agent and that the weapon could discharge unintentionally.15 Rivers alleges
that Remington, SGP, and DuPont “acquired specific knowledge” of this risk and
failed to give adequate warnings to purchasers of the rifle. If taken as true—as they
must be at the motion to dismiss stage—these allegations, though minimal, are
enough to state a claim under the LPLA.
Thus, dismissal of this is likewise
By contrast, Rivers’ design defect allegations offer little more than labels and
conclusions. The LPLA provides that “[a] product is unreasonably dangerous in
design if, at the time the product left its manufacturer’s control:
(1) There existed an alternative design for the product that
was capable of preventing the claimant’s damage; and
(2) The likelihood that the product’s design would cause the
claimant's damage and the gravity of that damage
outweighed the burden on the manufacturer of adopting
such alternative design and the adverse effect, if any, of
such alternative design on the utility of the product.
La. Rev. Stat. § 9:2800:56. Thus, “[t]o state a claim for unreasonably dangerous
design, the plaintiff must (1) allege how the design is defective or how the design
relates to the injury and (2) demonstrate the existence of a specific alternate design.”
Robertson v. AstraZeneca Pharm., LP, No. 15-438, 2015 WL 5823326, at *4 (E.D. La.
Oct. 6, 2015) (Barbier, J.). “The occurrence of an injury does not give rise to the
presumption that the design was unreasonably dangerous.”
allegation that an alternate design exists will not suffice.” Id.
Rivers’ complaint states that “the rifle was unreasonably dangerous in design
because the design utilized by [d]efendants is prone to failure in reasonably
Rivers further alleges that “[a]t the time that the rifle was
manufactured, feasible alternate designs existed which would have decreased or
eliminated the risk of the unintentional discharge, but those designs were not utilized
by [d]efendants.” That is the full extent of Rivers’ design defect claim.
Rivers does not allege any facts relating to a viable alternative design; he
simply declares that one exists. Such threadbare assertions, however, are insufficient
to state a claim under the LPLA. Cf. Becnel v. Mercedes-Benz USA, LLC, No. 14-3,
2014 WL 445031, at *4 (E.D. La. Sept. 10, 2014) (Barbier, J.) (“Plaintiff does not
merely state in a conclusory fashion that an alternative exists; rather, he identifies
that alternative design as the system the Airmatic replaced.”). Rivers’ design defect
claims require dismissal.
Finally, Rivers’ express warranty claim is nothing more than boilerplate that
is devoid of factual support. The only reference to the claim is when Rivers states
that “[t]he rifle was also unreasonably dangerous because it failed to conform to at
least one express warranty.” Rivers does not allege what warranty, if any, was made
to him, nor does he explain how the rifle failed to conform such warranty. This single
conclusory allegation does not state an express warranty claim under the LPLA, and
it cannot survive this motion dismiss.
Rivers has pled sufficient facts to sustain his manufacturing defect and
inadequate warning claims at this early stage in the litigation. His design defect and
express warranty claims, on the other hand, are inadequate.
IT IS ORDERED that Remington, SGP, and DuPont’s motion is GRANTED
IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Rivers’ claims under the LUTPA as well
as any claims for fraud, civil conspiracy, treble damages, and attorney’s fees are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Rivers’ design defect and express warranty
claims are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Remington, SGP, and DuPont’s motion
with respect to Rivers’ composition defect and inadequate warning claims is
New Orleans, Louisiana, February 7, 2018.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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