Barber v. Remington Arms Company et al

Filing 37

ORDER DISMISSING CASE WITH PREJUDICE. Signed by Judge Dana L. Christensen on 2/11/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
RICHARD BARBER and BARBARA
BARBER,

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

CV 12-43-BU-DLC

ORDER

The First Amended Complaint in this matter alleges claims of defamation
and slander, intentional infliction of emotional distress, and civil conspiracy. The
latter two claims rely on the success of the defamation count; it is alleged the
conspiracy was furthered by and the emotional distress was caused by the
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defamation.
Defendants Remington Arms Company, LLC (formerly “Remington Arms
Company, Inc.,” and hereinafter “Remington”), Sporting Goods Properties, Inc.,
and E.I. Du Pont De Nemours and Company (collectively, “Defendants”), have
filed a motion to dismiss the First Amended Complaint. They argue that Plaintiffs
Richard and Barbara Barber (“the Barbers”) fully released their claims as part of a
2002 settlement agreement with Defendants. Alternatively, they argue that the
Barbers’ claims do not state causes of action under Montana law. For the reasons
discussed below, Defendants’ motion is granted on the grounds that the present
claims were fully released in 2002.
I.
In reviewing a motion to dismiss, the court may consider “documents
attached to the complaint, documents incorporated by reference in the complaint,
or matters of judicial notice—without converting the motion to dismiss into a
motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th
Cir. 2003) (citations omitted). The Ninth Circuit has extended the incorporation
by reference doctrine to include “situations in which the plaintiff’s claim depends
on the contents of a document, the defendant attaches the document to its motion
to dismiss, and the parties do not dispute the authenticity of the document, even
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though the plaintiff does not explicitly allege the contents of that document in the
complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Information
is incorporated into the complaint “where the complaint necessarily relies upon a
document or the contents of the document are alleged in a complaint, the
document’s authenticity is not in question and there are no disputed issues as to
the document’s relevance.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038
(9th Cir. 2010) (holding that the legal sufficiency of a conversion claim depended
on the terms of a billing agreement, which it then considered as integral to the
complaint).
Defendants argue that ten exhibits are properly subject to judicial notice or
consideration. (Docs. 8-1 through 8-10.) Plaintiffs do not contest the authenticity
of any of the documents. Nor do they contest the propriety of considering
Exhibits E through J. Exhibit E is subject to judicial notice as a court pleading.
Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
Exhibits F through J may be considered as published news reports and press
releases, In re American Apparel, Inc. Shareholder Litigation, 855 F. Supp. 2d
1043, 1062 (C.D. Cal. 2012) (citing cases), and because their contents were
alleged and relied on in the Amended Complaint, Knievel, 393 F.3d at 1076.
Exhibits A through D concern prior litigation between the parties. Plaintiffs
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argue they should not be considered because they are not subject to judicial notice
under Rule 201 of the Federal Rules of Evidence or they are not central to the
Amended Complaint. While the Court agrees that it cannot take judicial notice of
any facts that are subject to reasonable dispute and alleged in these documents,
Fed. R. Evid. 201(b), each exhibit is properly subject to the Court’s consideration.
Exhibit D is a Resolution Agreement and Release the parties entered in
2002. The Barbers did not explicitly reference the settlement agreement in their
Amended Complaint.1 However, they do not dispute its authenticity or validity,
and though they insist their claims are not encompassed by the release, they do not
dispute its relevance. Coto Settlement, 593 F.3d at 1038. The release is integral to
the Amended Complaint. If the Barbers’ claims fall within its scope, they are
barred; they are not barred if they do not fall within its scope. Plaintiffs had notice
of the settlement agreement and its terms, and their Amended Complaint
necessarily relies on the release not encompassing their present claims. See RBS
Holdings, Inc. v. Wells Fargo Century, Inc., 485 F. Supp. 2d 472 (S.D.N.Y. 2007).

1

In their original complaint, the Barbers acknowledged that they “resolved their claims
against Defendants for their son’s death” and pleaded that this suit was “not for any claim
resolved by them in 2002.” (Doc. 1 ¶¶ 41, 43.) “When a pleading is amended or withdrawn, the
superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement
once seriously made by an authorized agent, and as such it is competent evidence of the facts
stated, though controvertible, like any other extrajudicial admission made by a party or his
agent.” Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir.1996) (citations omitted).
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Thus, the settlement agreement is properly considered under the incorporation by
reference doctrine.
Exhibits A and C are the Complaint and Answer from the 2001 action
between the parties, Barber v. Remington Arms Company, Inc., et al., No. 01-CV83-BU-LBE (D. Mont. 2001). These documents are subject to judicial notice as
public records. A court “may take judicial notice of proceedings in other courts,
both within and without the federal judiciary system, if those proceedings have a
direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th
Cir. 2007) (internal quotation and citations omitted); Lee v. City of Los Angeles,
250 F.3d 668, 689–90 (9th Cir. 2001) (a court may take judicial notice of court
records, but judicial notice may not extend to the truth of facts asserted in those
records). Exhibits A and C are directly related to the issue of whether the release
the parties entered in 2002 bars Plaintiffs’ present claims. They show what
allegations, defenses, and statements were made prior to the 2002 settlement and
are considered for the fact that the statements were made, not for the truth of the
matters asserted.
Exhibit B is a formal published statement that Remington made about the
2001 litigation. It is properly considered as a press release, In re American
Apparel, Inc. Shareholder Litigation, 855 F. Supp. 2d at 1062, again for the fact
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that the statements were publicly made, not for their truth.
In summary, each of the documents presented by Defendants may be
considered in deciding the motion to dismiss.
II.
On October 23, 2000, nine-year-old Gus Barber tragically died when a
Remington Model 700 rifle accidentally discharged as it was being handled by his
mother. According to the Barbers, the rifle fired when Barbara released the safety
in order to unload the rifle, even though she did not touch the trigger. The bullet
passed through the Barbers’ horse trailer and struck Gus, who was out of sight.
In 2001, Richard and Barbara were interviewed by CBS Evening News Eye
on America for a three-part series that was was broadcast nationwide. The three
segments were entitled “A Deadly Flaw,” “Fixing a Fatal Flaw,” and “Remington
Model 700: Friend or Foe.”
On January 25, 2001, Remington issued a press release that read, in part:
When used following the rules of safe gun handling, including proper
maintenance, always keeping the muzzle pointed in a safe direction and
not inappropriately altering the mechanism, the Remington Model 700
is a safe and reliable rifle. . . .
[W]e do think it is important to note that the rifle involved in the Barber
shooting was manufactured in 1972 and, as we understand, acquired by
Mr. Barber used 10 to 12 years ago.
Several weeks after the accident, representatives from Remington and
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the Barbers conducted a preliminary examination of both the condition
and the performance of the rifle. Among other abnormal conditions, the
inspection found the inside of the rifle to be heavily rusted, and the
trigger engagement screw, safety lever, and fire control mechanism had
all been either adjusted or removed and reinstalled after the rifle left the
factory. As to its performance, the rifle passed all the function tests
performed in this preliminary inspection, and fired only when the
mechanical safety was in the “fire” position and the trigger was pulled.
In light of this tragic accident, Remington will be redoubling its efforts
to educate hunters in the safe use and proper maintenance of the rifle
and of all firearms. . . .
(Doc. 8-2 (“Remington’s 2001 statement”).)
In December 2001, the Barbers filed suit against Defendants, raising claims
based on theories of product liability, failure to warn, negligence, breach of
warranty, infliction of emotional distress, spoliation of evidence, and failure to
recall or retrofit. (Doc. 8-1.) Defendants denied the allegations and asserted,
among other affirmative defenses, that “the alleged injuries and damages of the
plaintiffs were caused solely by the negligent conduct of persons or entities other
than the defendants,” that some of the claims were barred or reduced in proportion
to the amount of negligence attributable to Plaintiffs, and that the claims were
barred because the rifle had been altered and was not in the same condition as it
was when it was placed into the stream of commerce. (Doc. 8-3.)
On June 19, 2002, the parties entered a Resolution Agreement and Release.
In exchange for payment, the sum of which is confidential under the terms of the
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Agreement, Plaintiffs agreed to a general release:
A. In consideration of the payments set forth in the "Payments" section
of this Resolution Agreement, Plaintiffs hereby completely release and
forever discharge the Defendants from any and all past, present, or
future claims, demands, obligations, actions, causes of action, wrongful
death claims (Section 27-1-513, M.C.A.), survival action claims
(Section 27-1-501, M.C.A.), damages, personal injuries or disabilities
of any nature whatsoever, including all claims for physical pain and
suffering, mental anguish, emotional distress, grief, permanent
disability, loss of income, loss of enjoyment of life, rights, costs, loss of
services, and expenses, including, but not limited to, any and all
medical, hospital, and compensation of any nature whatsoever, whether
based on a tort, contract, or other theory of recovery, which the Plaintiffs
now have, or which may hereafter accrue or otherwise be acquired, on
account of, or may in any way grow out of the Accident, or which are
the subject of the Complaint (and all related pleadings), including,
without limitation, any and all known or unknown claims for bodily and
personal injuries to Plaintiffs, or any future wrongful death claims of
Plaintiffs’ representatives or heirs, which have resulted or may result
from the Accident and any alleged acts or omissions of the Defendants.
....
C. This release, on the part of the Plaintiffs, shall be a fully binding
and complete resolution among the Plaintiffs and the Defendants, and
their heirs, assigns, and successors.
D. The Plaintiffs acknowledge and agree that the release and
discharge set forth above is a general release. Plaintiffs expressly
waive and assume the risk of any and all claims for damages which
exist as of this date, but of which the Plaintiffs do not know or
suspect to exist, whether through ignorance, oversight, error,
negligence, or otherwise, and which, if known, would materially
affect Plaintiffs' decisions to enter into this Resolution Agreement.
The Plaintiffs further agree that Plaintiffs have accepted payment of
the sums specified herein as a complete compromise of matters
involving disputed issues of law and fact. Plaintiffs assume the risk
that the facts or law may be other than what Plaintiffs believe. It is
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understood and agreed to by the parties that this resolution is a
compromise of a disputed claim, and the payments are not to be
construed as an admission of liability on the part of the Defendants,
by whom liability is expressly denied.
(Doc. 8-4 at 2–4.)
Richard Barber, and occasionally Barbara, have since continued to engage
in extensive publicity about the accident and the Model 700 rifle. Richard has
been featured in numerous news articles and stories and has written articles,
posted information on the internet, and spoken publicly about his belief that Gus’s
death was caused by a design defect in the rifle’s Walker fire control system.
Richard has obtained “thousands of pages of Remington’s internal documents,”
and he seeks to demonstrate that Remington has been aware of the design defect
for years.
In October 2010, the Barbers both appeared in “Remington Under Fire: A
CNBC Investigation,” a documentary about the design defect theory. Richard was
one of the primary sources for the broadcast, which featured Gus’s story as well as
the stories of others who have experienced similar incidents involving the Model
700 rifle.
Remington produced two responses to the program, a video response (see
Transcript, doc. 8-10) and a written response (doc. 8-8). In the responses,
Remington counters some of the assertions made in the CNBC program and
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provides additional information.
The Barbers allege that Remington’s responses were defamatory and
slanderous. They claim that Remington knew the following statements were false:
[B]oth Remington and experts hired by plaintiffs’ attorneys have tested
accident guns which were alleged to have fired without a trigger pull
and neither has ever been able to duplicate such an event on guns which
had been properly maintained and which had not been altered after sale.
No scientific test has ever supported the accidental discharge theory of
plaintiffs’ lawyers and their expert. That’s true, even with a gun at the
center of the CNBC report. The reporter tells the compelling story of
the Barber family, who lost their son in a hunting accident a decade ago.
(Transcr. video response, doc. 8-10 at 2 (paragraph breaks in transcript omitted).)
They also argue that Remington’s statements that the Walker fire control system
can only fire without a trigger pull if the rifle has been improperly modified or
maintained can “reasonably be interpreted only to say that the Barber rifle fired
because of a trigger pull or because it was improperly maintained or improperly
modified.” (Doc. 13 at 18.) Thus, they assert that Remington “publicly blamed
Richard and Barbara for the death of their son Gus” and implied they were “solely
responsible” for his death. (Id. at 18, 21.) In their response to the motion to
dismiss, the Barbers additionally claim that Remington’s statements “were clearly
designed to convince their audience that the Barbers were lying about the safety of
the Model 700 rife and Remington’s knowledge that the firearm is defective.”
(Doc. 29 at 23.)
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III.
A. Standard of Review
To survive a motion to dismiss for failure to state a claim upon which relief
can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “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)
(internal quotation marks and citation omitted). “The issue is not whether a
plaintiff’s success on the merits is likely but rather whether the claimant is entitled
to proceed beyond the threshold in attempting to establish his claims.” De La
Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978), cert. denied, 441 U.S. 965
(1979). A prior settlement agreement may preclude a plaintiff from raising
related claims. Arnold v. United States, 816 F.2d 1306, 1309 (9th Cir. 1987). A
12(b)(6) motion is thus appropriate to test whether a complaint is barred by a prior
settlement agreement between the parties. Skilstaf, Inc. v. CVS Caremark Corp.,
669 F.3d 1005, 1016 (9th Cir. 2012) (dismissing the case because a prior release
precluded the plaintiff from bringing related claims in a subsequent lawsuit).2

2

The Ninth Circuit has also held that where an action is barred by a settlement agreement,
the action is moot, because the “parties lack a legally cognizable interest in the outcome.”
E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987). Where there is no
legally cognizable interest at stake, federal courts lack jurisdiction because their constitutional
authority is limited to cases and controversies. Id.
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B. Release
Settlement agreements are contracts and are governed by the principles of
contract law. Murphy v. Home Depot, 270 P.3d 72, 74 (Mont. 2012). Once a
settlement is reached, it is legally enforceable. Id.
A party to a settlement agreement is bound if he or she manifested assent
to the agreement’s terms, and has not manifested an intent not to be
bound. In other words, a party is bound if he or she unconditionally
consented to the agreement. A party’s latent, or undisclosed, intention
not to be bound does not prevent the formation of a binding contract.
Murphy, 270 P.3d at 74 (internal citations omitted). If a contract is unambiguous,
the Court must enforce its plain meaning. Summer Night Oil Co., LLC v. Munoz,
259 P.3d 778, 781 (Mont. 2011) (citation omitted); Rich v. Ellingson, 174 P.3d
491, 495 (Mont. 2007). Only if a contract is ambiguous may the Court review
extrinsic evidence to determine the meaning of the writing or construe the
intentions of the parties. Rich, 174 P.3d at 495; Adams v. Maynard, 264 P.3d 517,
517 (Mont. 2011) (finding a release was ambiguous because, in the same
document, one party released all claims against the other and reserved some
claims).
The public policy of the State of Montana is to encourage settlement and
avoid unnecessary litigation. Miller v. St. Farm Mut. Auto. Ins. Co., 5 P.3d 1278,
1281 (Mont. 2007) (citations omitted); Hohensee v. Chemodurow,470 P.2d 965,
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967 (Mont. 1970) (“The law favors the settlement of disputes out of court, either
before or after an action is begun, and when the parties are shown to have made a
valid settlement they will be held thereto, in the absence of fraud or mistake.”).
Thus, the language of a release will be given effect to include all possible claims
even if they are not specifically mentioned. Hohensee, 470 P.2d at 967. The
releasor’s “latent discontent with the release cannot be grounds for alteration of an
express agreement.” Hanson v. Oljar, 752 P.2d 187, 189 (Mont. 1988) (internal
quotation marks and citation omitted).
Here, the Barbers agreed to a broad, general release in 2002, and they did
not reserve any claims. Murphy, 270 P.3d at 74; Hetherington v. Ford Motor Co.,
849 P.2d 1039, 1043 (1993). They released Defendants from liability not only for
the specific claims raised in their 2001 complaint, but also for any other claims
they could have brought, as well as any “future” claims “which may hereafter
accrue or otherwise be acquired, on account of, or may in any way grow out of the
Accident . . . including, without limitation, any and all known or unknown claims .
. .which have resulted or may result from the Accident and any alleged acts or
omissions of the Defendants.” (Doc. 8-4 at 2–3.) The terms of the Release are not
ambiguous, and the Court’s consideration is thus confined to the plain meaning of
the Release itself. Skilstaf, Inc., 669 F.3d at 1017 (“A party's assertion of
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ambiguity does not require the district court to allow additional opportunities to
find or present extrinsic evidence if the court considers the contract language and
the evidence the parties have presented and concludes that the language is
reasonably susceptible to only one interpretation.”).
The Barbers insist that the present claims did not “grow out of the
Accident” because they concern statements made by Remington in 2010. The
Court disagrees. Even though the statements were published several years after
the previous litigation and settlement, they grew directly out of the Accident and
concern the same factual and legal issues that were in dispute in 2001 and 2002.
In the 2002 Resolution Agreement and Release, the parties acknowledged
they were settling a matter that was still disputed and that Defendants did not
admit and in fact expressly denied liability. (Doc. 8-4 at 3.) Nonetheless, the
Barbers “accepted payment . . . as a complete compromise of matters involving
disputed issues of law and fact,” and they “assume[d] the risk that the facts or law
may be other than what [they] believe[d].” (Id.)
Among the disputed issues were whether there was a design defect in the
Model 700, the condition of the Barbers’ rifle, and who or what caused Gus’s
death. Plaintiffs claimed the rifle, as designed, was in a defective condition (doc.
8-1 at 6); Defendants denied this and declared it was safe and reliable (doc. 8-3 at
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4; doc. 8-2). Plaintiffs asserted their own rifle was in substantially the same
condition as it was when it was manufactured by Defendants (doc. 8-1 at 6);
Defendants disagreed, stating there were abnormal conditions, including rust, and
that “the trigger engagement screw, safety lever, and fire control mechanism had
been either adjusted or removed and reinstalled after the rifle left the factory”
(doc. 8-3 at 8; doc. 8-2). Finally, Plaintiffs maintained the rifle was used in a
reasonably foreseeable manner (doc. 8-1 at 7), but Defendants countered it was
misused and suggested it had been improperly maintained or inappropriately
altered (doc. 8-3 at 7; doc. 8-2). These disputed issues of fact and law were
explicitly resolved by the parties in the 2002 Resolution Agreement and Release.
The 2010 statements which the Barbers allege are defamatory concern the
exact same subject matter. (Doc. 13 at 18–20.) They reprise the litigation position
that Defendants took in 2001 and 2002 and repeat statements that Remington
published in its 2001 press release. They concern the same accident, the same
rifle, the same parties, and the same disputes over responsibility, the condition of
the Barbers’ gun, and whether there is an inherent defect in the rifle. Accordingly,
the Barbers’ present claims arise directly out of the accident and the matters
contemplated in the 2002 agreement. Additionally, under the Barbers’ theory of
defamation, the claims could have been raised in the previous lawsuit based on the
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2001 press release that Remington published.
This case is thus distinguishable from the Ninth Circuit’s footnote in
Marder v. Lopez, 450 F.3d 445, 451 n. 5 (9th Cir. 2006) about a hypothetical
defamation claim. In that case, the plaintiff had signed a release discharging
Paramount Pictures from claims arising out of the creation of the film Flashdance,
which was based on her life story. Id. at 447. Several years later, a music video
was produced that included re-creations from several scenes in Flashdance. Id.
Marder filed an action seeking to assert her rights as a co-author of the movie and
a co-owner of the copyright. Id. at 448. The Ninth Circuit held that her claims
were precluded by the earlier release even though they arose after the release was
signed:
The Release’s language is exceptionally broad and we hold that it is
fatal to each of Marder’s claims against Paramount. Such a release of
‘each and every claim’ covers all claims within the scope of the
language, absent extrinsic evidence to the contrary.
Id. at 449 (construing California law). The court rejected Marder’s argument that
such a broad interpretation of the release would even preclude her from bringing
suit if Paramount defamed her dance routine. Id. at 451 n.5. The court noted that
the hypothetical lacked a “sufficient nexus” to the “matters” contemplated by the
release—the ownership of her contributions to Flashdance. Id. Here, on the other
hand, the same matters resolved by the 2002 Release—the disputed facts and law
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at issue during the 2001 litigation—are the subject matter of the current lawsuit.
There is a direct nexus between the disputed issues the Barbers agreed to resolve
in 2002 and their current claims.
When the Plaintiffs negotiated a settlement of these disputed issues, they
expressly recognized that the facts might be other than what they believed at the
time. (Doc. 8-4 at 3.) Thus, Defendants’ alleged knowledge concerning problems
with the Walker fire control does not alter the effect of the Release. The parties
did not agree to refrain from speaking publicly about the disputed issues ever
again; the Agreement’s confidentiality clause is limited to the payment the Barbers
accepted in return for agreeing to the Release. (Doc. 8-4 at 10.) Permitting the
Barbers to avoid the Release by raising a defamation claim would effectively put a
gag order on every settlement of a disputed issue—if a party ever spoke again
about its position, it would be vulnerable to a defamation suit on the grounds that
someone could reasonably infer it was suggesting the other party was lying. This
would be destructive of the finality of the settlement process and would
contravene Montana’s policy of favoring settlement.
IV.
The language of the 2002 Release “[f]rom beginning to end, ... consistently
demonstrates the intent of the parties to resolve all disputes arising from [the
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Accident], known or unknown, anticipated or unanticipated, regardless of the
particular complaint alleged,” and “no reservations were made as to present or
future claims against [the defendant].” Rich, 174 P.3d at 496. Because the present
lawsuit shares the same “factual predicate” as the 2001 dispute, see Reyn's Pasta
Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 749 (9th Cir. 2006) (affirming
dismissal of a class action against credit card companies predicated on the same
price-fixing predicate and injury as claims settled in an earlier class action, even
though the subsequent suit “posit[ed] a different theory of anti-competitive
conduct”), and bears a “sufficient nexus” to the matter contemplated in the release,
Marder, 450 F.3d at 451 n. 5, the claims raised here are barred.
Accordingly, IT IS ORDERED that Defendant’s motion to dismiss the First
Amended Complaint (doc. 23) is GRANTED. The First Amended Complaint
(doc. 13) is DISMISSED WITH PREJUDICE. All pending motions are DENIED
as moot, and all deadlines are VACATED. This case is closed.
Dated this 11th day of February 2013.

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