Barrere et al v. Remington Arms Company et al

Filing 16

ORDER granting 4 Defendants' Rule 12(b)(6) Motion to Dismiss. The Clerk of Court is directed to notify the parties of the making of this Order and Close this Case. Signed by Judge Richard F. Cebull on 4/29/2013. (EMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
SHARON J. BARRERE and
L. BRICE BARRERE,

)
)
)
Plaintiffs,
)
)
vs.
)
)
REMINGTON ARMS COMPANY, )
LLC, SPORTING GOODS
)
PROPERTIES, INC., and
)
E.I. DuPONT DE NEMOURS AND )
COMPANY,
)
)
Defendants.
)
______________________________ )

CV-12-136-BLG-RFC

ORDER

INTRODUCTION
Defendants have filed a motion to dismiss arguing Plaintiffs’ claims are
time-barred by the three-year Montana statute of limitations; and neither the
“discovery rule” nor the “fraudulent concealment” doctrines apply to legally
excuse Plaintiffs’ failure to file their lawsuit within the time required by Montana
law. Plaintiffs oppose Defendants’ motion for the reason that Plaintiffs did not
discover that Remington Model 600 Mohawk bolt action rifles were defective
until October 2010 and Defendants have gone to great lengths to conceal the
defective design of the Remington Model 600 Mohawk rifle.
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FACTUAL BACKGROUND
Sharon Barrere was struck in the left foot by a bullet that discharged from a
Remington Model 600 Mohawk bolt action rifle on October 31, 2007. See
Complaint. Plaintiffs allege that their friend, the gun handler, “Sybel Loving was
unloading the rifle by cycling the bolt after the hunt when it suddenly and
unintentionally discharged.” Sharon Barrere’s left great toe was amputated on
November 5, 2007. Shortly before the shooting, Brice and Sharon Barrere and
Sybel and Herman Loving were hunting deer on Brice and Sharon’s ranch in
Carter County, Montana. Sybel Loving had been hunting with the Remington
Model 600 Mohawk rifle.
On October 12, 2012, Plaintiffs filed their lawsuit against Defendants.
Plaintiffs assert the following Montana state law causes of action: strict liability
for defective design and failure to warn (Counts I and II); common law negligence
(Count III); and loss of consortium (Count IV).
ANALYSIS
A claim is subject to dismissal under Rule 12(b)(6) Fed.R.Civ.P. if it lacks a
cognizable legal theory. Johnson v. Riverside Healthcare System, LP, 534 F.3d
1116, 1121-22 (9th Cir. 2008). Where allegations in a complaint “show that relief
is barred by the applicable statute of limitations, the complaint is subject to
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dismissal for failure to state a claim[.]” Jones v. Bock, 549 U.S. 199, 215 (2007).
Under Rule 12(b)(6), factual allegations in a complaint are presumed true and
reasonable inferences are made in favor of the non-moving party. Rhodes v.
Robinson, 408 F.3d 559, 563 (9th Cir. 2005).
As stated by the Montana Supreme Court, statute of limitations are vital to
the system of justice:
Statutes of limitation are vital to the welfare of society and
are favored in the law. They are found and approved in all
systems of enlightened jurisprudence. They promote repose
by giving security and stability to human affairs. An
important public policy lies at their foundation. They
stimulate to activity and punish negligence. While time is
constantly destroying the evidence of rights, they supply its
place by a presumption which renders proof unnecessary.
Mere delay, extending to the limit prescribed, is itself a
conclusive bar. The bane and antidote go together. (Citation
omitted).
Much v. Strum, Ruger & Co., Inc., 502 F.Supp. 743, 745 (D.Mont. 1980), aff’d,
685 F.2d 444 (9th Cir. 1982). Failure to file within the statute of limitations
precludes a defendant from adequately investigating an incident in order to
provide a defense.
Plaintiffs assert the “discovery rule” applies and excuses the delay in the
filing because Plaintiffs did not learn about the alleged defects in Remington rifles
until sometime after October 2010, when Herman Loving told Mr. Barrere about
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the CNBC television program entitled “Remington Under Fire.” The television
program purportedly documented design defects with Remington bolt action rifles
that would cause the rifles to fire without a trigger pull. Plaintiffs had no actual
knowledge of the alleged design defects prior to being told about the CNBC
television program.
The “discovery rule” and “fraudulent concealment” doctrine are codified at
Mont. Code Ann. § 27-2-102:
(1) For the purposes of statutes relating to the time within
which an action must be commenced:
(a) a claim or cause of action accrues when all
elements of the claim or cause exist or have occurred,
the right to maintain an action on the claim or cause is
complete, and a court or other agency is authorized to
accept jurisdiction of the action;
(b) an action is commenced when the complaint is
filed.
(2) Unless otherwise provided by statute, the period of
limitation begins when the claim or cause of action accrues.
Lack of knowledge of the claim or cause of action, or of its
accrual, by the party to whom it has accrued does not
postpone the beginning of the period of limitation.
(3) The period of limitation does not begin on any claim or
cause of action for an injury to person or property until the
facts constituting the claim have been discovered or, in the
exercise of due diligence, should have been discovered by
the injured party if:
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(a) the facts constituting the claim are by their nature
concealed or self-concealing; or
(b) before, during, or after the act causing the injury,
the defendant has taken action which prevents the
injured party from discovering the injury or its cause.
(4) Subsection (3) does not apply to actions involving the
limitations contained in 27-2-205.

Mont. Code Ann. § 27-2-102.
A plaintiff relying on the “fraudulent concealment” doctrine is required to
show: (1) an injury occurred; and (2) active concealment of that injury.
To toll the statute of limitations the fraud must be of such a
character as to prevent inquiry, elude investigation, or to
mislead the party who claims the cause of action . . . There
first must be injury and then concealment. It is the cause of
action which must be fraudulently concealed by failing to
disclose the fact of injury.
Monroe v. Harper, 164 Mont. 23, 28 (1974); see also Yellowstone Conference of
United Methodist Church v. D.A. Davidson, 228 Mont. 294 (1987) (citing Much,
502 F.Supp. at 743.)
The “fraudulent concealment” allegations asserted here by Plaintiffs are
similar to those rejected in Much:
Monroe requires the cause of action be fraudulently
concealed by a failure to disclose the fact of injury. The fact
of injury was obvious to Mr. Much at the instant his
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revolver discharged into his leg. Nevertheless, he did not
communicate with Sturm, Ruger and Company until after
filing his suit. That there were no affirmative acts of
concealment, indeed no communication whatever between
Mr. Much and Ruger during the statutory period following
the injury, renders fraudulent concealment of this cause of
action an impossibility. “There must be some affirmative act
of the defendant calculated to obscure the existence of a
cause of action.” E.g., Hesse v. Vinatieri, 145 Cal.App.2d
448, 302 P.2d 699, 702 (Dist.Ct.App.Cal.1956).

Much, 502 F.Supp. at 745.
When Sharon Barrere was shot by a Remington rifle, she was put on inquiry
notice to investigate further. Plaintiffs’ failure to conduct any post shooting
investigation contravenes both the “due diligence” requirement of Mont. Code
Ann. § 27-2-102(3), and the basic Montana “inquiry notice” principles. Plaintiffs
certainly could have spoken to their friend Sybel and inquired as to whether
trigger activation occurred. Rather, Plaintiffs presumed that trigger activation
occurred. Sharon Barrere knew she was injured when the rifle discharged on
October 31, 2007 and this event triggered the accrual of the limitation period.
Plaintiffs had a duty at that point to investigate a potential claim and Montana law
provided them three years from the date of injury to do so.
With regard to the “fraudulent concealment” doctrine, Plaintiffs allege that
Defendants’ fraudulent concealment of material information concerning design,
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manufacturing, and other defects in the Remington rifles prevented Plaintiffs from
discovering their claim against Defendants. However, Plaintiffs make no
allegation that they communicated with Defendants during the three-year
limitations period following the shooting. Plaintiffs did not exercise “due
diligence” to discover a potential cause of action. Mont. Code Ann. § 27-2102(3).
It is important to note that there have been two similar recent federal court
cases involving dismissal of untimely lawsuits against Remington and allegedly
defective Model 700 rifles. See Santanelli v. Remington Arms Co., LLC, 2011 WL
6003199 (D.R.I. Nov. 30 2011), aff’d, 468 F. App’x 15 (1st Cir. 2012); Casimir v.
Remington Arms Company, LLC, et al., cause no. 12-cv-01107-JM.

In

Santanelli, the plaintiff was injured on October 27, 2003, as a result of an
accidental discharge of a Remington Model 700 rifle. The plaintiff did not
commence the product liability action against Remington until June 10, 2011.
Remington moved to dismiss because plaintiff’s cause of action was barred by
Rhode Island’s three-year statute of limitations. In response, the plaintiff argued
that the “discovery rule” tolled the statute of limitations until November 25, 2010,
when he watched the CNBC program on Model 700 rifles. Santanelli alleged that
it was not until he watched the CNBC program that he first “became aware of
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Remington’s wrongful conduct.” The district court rejected this argument and
held that Santanelli’s claim is a “paradigm personal injury case with a readily and
immediately apparent injury from a cause that could have been uncovered with
reasonable diligence.” Santanelli at *2.
Furthermore, on January 16, 2103, in Casimir v. Remington Arms Company,
LLC, et al., cause no. 12-cv-01107-JM, the United States District Court of the
Western District of Washington, issued an order dismissing a plaintiff’s untimely
product liability action based on statute of limitations grounds. The Casimir court
rejected plaintiff’s “discovery rule” and “fraudulent concealment” tolling
arguments, which are similar to those in this case.
This Court agrees with the Santanelli and Casimir courts.
IT IS ORDERED that Defendants’ Rule 12(b)(6) Motion to Dismiss is
GRANTED. The Clerk of Court is directed to notify the parties of the making of
this Order and close this file.
DATED this 29th day of April, 2013.
_/s/ Richard F. Cebull__________
RICHARD F. CEBULL
SENIOR U.S. DISTRICT JUDGE

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