Person et al v. Tannerite Sports et al
ORDER denying 5 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Brian Morris on 5/6/2022. (MMS)
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MARK PERSON, ROBERT DORAN,
SHELLY VERNON, ROBERT VERNON,
TERRANCE BUCHANAN, SCOTT
TINKLENBERG, GARY GUNDERSON,
and VAUGHN VOLUNTEER FIRE
TANNERITE SPORTS LLC; DANIEL J.
TANNER, individually and acting under the
assumed business name TANNERITE
EXPLOSIVES; and DOES 1-50,
Plaintiffs Mark Person, Robert Doran, Shelly Vernon, Robert Vernon,
Terrance Buchanan, Scott Tinklenberg, Gary Gunderson, and Vaughn Volunteer
Fire Department, Inc., (collectively, “Plaintiffs”), allege claims for Defective
Design (Count I), Manufacturing Defect (Count II), Failure to Warn (Count III),
Warranty (Count IV), and Punitive Damages (Count V) against Defendants
Tannerite Sports LLC and Daniel Tanner (“Tanner”), individually and acting on
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 2 of 20
behalf of Tannerite Explosives (collectively, “Defendants”). See (Doc. 1).
Defendants have filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
(Doc. 5). Daniel Tanner further moves this Court in his individual capacity to
dismiss the allegations against him pursuant to Fed. R. Civ. P. 12(b)(2). Id.
Plaintiffs oppose the Motion. The Court held a hearing on the matter on December
Plaintiffs allege that Defendants “design, manufacture, assemble, market,
advertise, supply, distribute, and/or sell binary exploding targets” known as
“Tannerite Brand Binary Exploding Targets,” (“exploding targets”). (Doc. 1 at ¶
10). The product consists of two ingredients: ammonium nitrate and aluminum
powder. Id. at ¶ 11. Defendants package the two ingredients separately and provide
instructions to users on how to mix the products to prepare the exploding target. Id.
at ¶ 13. The user then pours the mixture into a “target container.” Id. When shot
with a firearm, this “target container” detonates at a rate between 16,000 and
18,000 feet per second. Id. at ¶¶ 13-14.
Plaintiffs bring this action after an incident involving the use of Tannerite’s
product on September 2, 2019. (Doc. 1 at ¶ 9). Three men allegedly using
Tannerite’s product for target shooting in Cascade County started a fire upon the
explosion of one of the targets. Id. at ¶ 20. The fire spread over approximately
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 3 of 20
16,000 acres. Id. at ¶ 21. The fire destroyed Plaintiffs’ “crops, pastures, fencing, a
residence, multiple out buildings” and caused damage to Plaintiffs’ property. Id.
Plaintiffs claim that Tannerite markets their exploding targets as safe and nonflammable. Id. at ¶ 23. Plaintiffs allege Tannerite’s marketing knowingly misleads
customers about the product’s ability to start a fire. Id. at ¶¶ 23-24.
Defendants now move this court to dismiss under Fed. R. Civ. P. 12(b)(6)
for failure to state a claim on the basis that none of the Plaintiffs qualify as “users”
or “consumers” of the product for purposes of Montana’s state liability statute,
codified at Mont. Code Ann. § 27-1-719. Further, Defendant Daniel Tanner moves
for dismissal under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction
because Plaintiff’s complaint fails to establish that Tanner has sufficient minimum
contacts with the jurisdiction.
Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
The Court analyzes first the alleged failure to state a claim.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure tests the legal sufficiency of a complaint under the plausibility pleading
standard of Rule 8(a)(2). See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
Dismissal proves appropriate under Rule 12(b)(6) where the complaint fails to state
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 4 of 20
a claim upon which relief can be granted. Mendiondo v. Centinela Hospital Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A court may dismiss a complaint “based
on the lack of a cognizable legal theory or the absence of sufficient facts alleged
under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1988).
The Court will accept the plaintiff’s allegations “as true” and “construe them
in light most favorable to plaintiffs” when deciding a motion to dismiss. Kopeikin
v. Moonlight Basin Management, LLC, 981 F. Supp. 2d 936, 939 (D. Mont. 2013)
(citations omitted). The complaint must contain sufficient factual matter, accepted
as true, to state a claim for relief that would be plausible on its face to survive a
Rule 12(b)(6) motion. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). A
claim remains plausible on its face when “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. The plausibility standard does not require
probability, but “asks for more than sheer possibility that defendant has acted
unlawfully.” Id. A court sitting in diversity jurisdiction applies the substantive law
of the forum state.” Her Majesty Queen in Right of Province of British Columbia v.
Gilbertson, 597 F.2d 1161, 1163 (9th Cir. 1979).
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 5 of 20
Strict Liability Claims (Counts I, II, and III)
Plaintiffs allege in their Complaint that Defendants stand strictly liable for
defectively designing and manufacturing the product, and for failing to warn of the
product’s defective condition. (Doc. 1 at ¶¶ 27-39). Montana has adopted the
theory of strict product liability from Restatement (Second) of Torts § 402A in
Mont. Code Ann. § 27-1-719(2). Patch v. Hillerich & Bradsby Co., 257 P.3d 383,
387 (Mont. 2011). The statute provides that one who “sells any product in a
defective condition unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused to the ultimate user
or consumer” or to the user’s or consumer’s property. Id.; Mont. Code Ann. § 271-719(2); Restatement (Second) of Torts, § 402A (1965).
For a strict products liability claim, the plaintiff must establish the following
factors: “(1) the product was in defective condition ‘unreasonably’ dangerous to
the user or consumer; (2) the defect caused the accident and the injuries
complained of; and (3) the defect is traceable to defendant.” Kuiper v. Goodyear
Tire & Rubber Co., 673 P.2d 1208, 1221 (Mont. 1983). For a failure to warn claim,
a plaintiff must establish the following elements: “(1) the product was sold in a
defective condition due to the lack of or an inadequate warning, (2) the defect
caused the injury [to the user or consumer], and (3) the defect is traceable to the
defendant.” Patch, 257 P.3d at 389 (citing Wood v. Old Trapper Taxi, 952 P.2d
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 6 of 20
1375, 1382 (1997)). Accordingly, only a “user” or “consumer” of the allegedly
defective product has standing to bring a strict product liability claim. City of
Seattle v. Monsanto Company, 237 F.Supp.3d 1096, 1108 (W.D. Wash 2017).
“Users” or “Consumers.”
Defendants argue that the Court should dismiss Plaintiffs’ strict product
liability claims as Plaintiffs fail to allege that they were “users” or “consumers” of
the exploding targets. Defendants rely heavily on the reasoning in City of Seattle.
The City of Seattle alleged that Monsanto Company contaminated the city water
supply with toxic chemicals known to cause health problems. Id. at 1100. The City
of Seattle sought to force Monsanto to bear the cost of the cleanup. Id. Monsanto
marketed these toxic chemicals to manufacturers and consumers who ultimately
discharged the toxic chemicals. Id. at 1101. The City of Seattle alleged that these
toxic chemicals eventually migrated into the city water system. Id.
The City of Seattle brought strict product liability claims for defective
design and failure to warn. Id. at 1101. Monsanto Company moved to dismiss the
complaint. Id. at 1101-02. The district court determined that the City of Seattle
lacked standing to bring a products liability claim because the City of Seattle had
failed to allege that it qualified as a “user” or “consumer” of the allegedly defective
product. Id. at 1108. The district court also determined that the City of Seattle
could not foreseeably have been seen as a bystander for purposes of extending
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 7 of 20
Monsanto Company’s liability to members of a user’s or consumer’s household.
The Montana Supreme Court also has provided guidance on the scope of
liability for “users” and “consumers” in Patch, 257 P.3d 383. A baseball pitcher,
Brandon Patch, was killed after he was struck in the head by batted ball in a
baseball game. Id. at 386. Patch’s parents brought product liability claims against
the manufacturer of the aluminum bat. Id. The manufacturer argued that only the
individual batter and the purchaser of the bat could assert failure to warn claims.
Id. at 387.
The Montana Supreme Court analyzed whether Brandon qualified as a
“user” or “consumer” to impose strict products liability upon the manufacturer
under the Restatement (Second) of Torts § 402A. Id. at 387-389. The Montana
Supreme Court acknowledged the broad definitions of “user” and “consumer”
under § 402A and determined that the manufacturer’s interpretation of the terms
proved too narrow. Id. at 387. In doing so, the Montana Supreme Court concluded
that all players in the baseball game qualified as “users and consumers placed at
risk by the increased exit speed” caused by the manufacturer’s aluminum bat. Id. at
388. The Montana Supreme Court recognized that the bat represented an
“indispensable part of the game,” that the bat’s risk of harm extended beyond the
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 8 of 20
batter, and that a warning only to the batter “inadequately communicates the
potential risk of harm by the bat’s increased exit speed.” Id.
City of Seattle and Patch prove instructive here. Like in City of Seattle,
Plaintiffs fail to allege in their Complaint that they were “users” or “consumers” of
the exploding targets. (Doc. 1). The district court refused to impose strict liability
on Monsanto Company even when the City of Seattle argued that the downstream
effects of the contaminated water rendered it a foreseeable bystander similar to a
member of a consumer’s household. City of Seattle, 237 F.Supp.3d at 1108.
Plaintiffs have not alleged that they used the exploding targets. Plaintiffs allege
instead that they have been affected by the users’ actions in exploding the targets.
Plaintiffs’ alleged contact with the exploding targets comes solely from the impact
caused by the unrelated third-party shooters’ use of the exploding targets.
Furthermore, although Patch illustrates that Plaintiffs need not have purchased or
used the product to have standing to bring strict products liability claims, Plaintiffs
still fall short of Patch’s broad definition of “user” and “consumer.” 257 P.3d at
Patch extended the scope of “user” and “consumer” to all players in the
baseball game due to the bat’s designation as an “indispensable part of the game.”
Id. at 388. The Montana Supreme Court connected the aluminum bat’s essential
use to the risk that it posed to all the players in the game. Id. A connection similar
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 9 of 20
to Patch fails to exist in this case. Id. at 388. In fact, no connection appears to exist
between the shooters of the exploding targets and the Plaintiffs. In order for the
logic in Patch to apply here, Plaintiffs would have had to demonstrate participation
in the shooting to some capacity that would have placed them at risk of harm
caused by the exploding targets. No such allegations have been made. Montana
law prevents this Court from designating Plaintiffs as “users” or “consumers” for
purposes of strict products liability even under the broad definition set forth in
Patch. Id. at 387-88.
Extension of liability beyond “users” and “consumers.”
Plaintiffs claim that Montana grounded its adoption of the Restatement
(Second) of Torts § 402A in the public policy to hold manufactures accountable for
defective products and failing to warn of product dangers. Brandenburger v.
Toyota Motor Sales, U.S.A., Inc., 513 P.2d 268, 272 (Mont. 1973). The public
policy reasons admittedly provide perspective on Montana’s adoption of § 402A.
The current Montana law remains clear, however, that only users and consumers of
a product retain standing to bring claims for strict products liability. The public
policy behind the adoption fails to persuade the Court that Plaintiffs were “users”
or “consumers” of the exploding targets even if the broader extent adopted in
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 10 of 20
Plaintiffs argue that Streich v. Hilton-Davis, 692 P.2d 440 (Mont. 1984),
demonstrates the Montana Supreme Court’s willingness to employ public policy
reasons to hold a manufacturer liable under strict products liability to nonpurchasers or non-users of the product. The plaintiff was a potato farmer who had
purchased and used a chemical from Hilton-Davis to grow seed potatoes. Id. at
442. Streich sold seed potato to third-party farmers. Id.
Streich and the third-party farmers, who used the seed potatoes contaminated
with the chemical, developed problems with their potato crops. Id. The Montana
Supreme Court concluded that the third-party farmers, who used Streich’s seed
potatoes, fell into the scope of strict products liability even though they had not
used or purchased the chemical. Id. at 445. Strict liability applies when “the use of
a product for the purpose for which it was intended has the foreseeable potential of
damaging the user’s property.” Id. (emphasis added).
Even when leaning on public policy arguments, Streich demonstrates that
the Montana Supreme Courts has extended strict liability only when plaintiffs were
users of the product, even downstream users. The third-party farmers in Streich
had not actually used the chemical, but had used the seed potatoes that had been
contaminated with the chemical. Id. at 442. No such connection exists in this case.
Plaintiffs have failed to allege that they have used the exploding targets in any
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 11 of 20
Plaintiffs retain no connection to the shooters’ purchase of the exploding
targets and have not enjoyed the benefit of using the targets. In other words,
Plaintiffs present no connection between the purchase of the exploding targets and
any downstream, indirect use of the exploding targets. Without such a connection,
Plaintiffs would be classified as mere bystanders. Foreseeable potential of damage
alone fails to impose strict liability on Defendants absent Plaintiffs’ alleged use of
the exploding targets in some manner under existing Montana law.
Extension of liability for injury to bystanders.
Plaintiffs here stand in a position similar to the plaintiffs in Bell v. Glock, 92
F. Supp.2d 1067 (D. Mont. 2000). Two teenage boys entered the bedroom of one
of the boy’s stepfathers to look for sleeping bags for a camping trip. Id. at 1068.
The stepson saw a gun in a holster hanging from the bedpost. Id. The stepson
grabbed the gun, pointed it at his friend and pulled the trigger. Id. The stepson did
not think that the gun was loaded and only wanted to hear a click. Id. The stepson
instead shot his friend in the face and killed him. Id. The decedent’s parents
brought a strict liability claim against the gun manufacturer. Id. The district court
rejecgted the gun manufacturer’s assumption of the risk defense on the grounds
that the decedent – the victim of the gunshot – was not a “user” or “consumer” of
the product. Id. at 1071. Plaintiffs here were not “users” or “consumers.” Like the
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 12 of 20
decedent in Bell, Plaintiffs appear to have been victims of an allegedly dangerous
The Montana Supreme Court has not yet determined, however, whether
strict products liability extends to bystanders. A federal court sitting in diversity
must apply the substantive law of the forum state. Her Majesty Queen in Right of
Province of British Columbia, 597 F.2d at 1163. When an issue of state law arises
that has not been adjudicated by the state’s highest court, a federal court sitting in
diversity jurisdiction “must make a reasonable determination of the result the
highest state court would reach if it were deciding the case.” Pacific Hide & Fur
Depot v. Great American Ins. Co., 23 F. Supp. 3d 1208, 1212 (D. Mont. 2014)
(citations omitted). The court “must look to existing state law without predicting
potential changes in that law.” Id. The court should look to decisions from other
jurisdictions as guidance. Id.; Kairy v. SuperShuttle Intern., 660 F.3d 1146, 1150
(9th Cir. 2011).
All states that have adopted the theory of strict liability have “extended the
theory to the bystander when called upon to do so.” Caruth v. Mariani, 463 P.2d
83, 85 (Ariz. Ct. App. 1970); see also Elmore v. American Motors Corp., 451 P.2d
84 (Cal. 1969), Osborne v. International Harvester Co., 688 P.2d 390 (Or. App.
1984). In Elmore, the California Supreme Court reasoned that, “[i]f anything,
bystanders should be entitled to greater protection than the consumer or user where
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 13 of 20
injury to bystanders from the defect is reasonably foreseeable.” 451 P.2d at 89.
As noted, “[c]onsumers and users, at least, have the opportunity to inspect for
defects and to limit their purchases to articles manufactured by reputable
manufacturers and sold by reputable retailers, whereas the bystander ordinarily has
no such opportunities.” Id. The California Supreme Court concluded that “the
bystander is in greater need of protection from defective products which are
dangerous, and if any distinction should be made between bystanders and users, it
should be made, contrary to the position of defendants, to extend greater liability in
favor of the bystanders.” Id.
The Arizona court in Caruth took a similar position in extending liability.
463 P.2d 83. The court offered a hypothetical in which an owner of a vehicle loans
the vehicle to his neighbor. Id. at 86. As the neighbor drives the vehicle, the
vehicle suffers from a defective steering malfunction due to no fault of the owner
or neighbor. Id. The vehicle strikes and paralyzes a pedestrian. Id. The vehicle then
hits a wall, leaving the neighbor with minor cuts. Id. In a jurisdiction that refuses to
extend liability to bystanders’ injuries, only the neighbor, as a “user” or
“consumer,” can recover against the manufacturer. Id. That same jurisdiction
leaves the paralyzed pedestrian without recourse. Id.
Plaintiffs’ case here mirrors the court’s hypothetical in Caruth. Current
Montana law would leave Plaintiffs without recourse against Defendants because
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 14 of 20
Plaintiffs fall outside the expanded definitions of “user” and “consumer”
recognized in Patch. As explained in Caruth, however, the tort concept based in
public policy exists to protect “injured persons” and not just “users and
consumers.” Id. The Court cannot rationalize a result in this case that would leave
an innocent bystander without recourse similar to the hypothetical in Caruth.
The Court believes that the Montana Supreme Court, if confronted with the
question, would adopt bystander liability for the purposes of strict products
liability. Patch and Streich demonstrate the Montana Supreme Court’s willingness
to extend the definition of “user” or “consumer.” Although Plaintiffs in this case
could not be considered “users” or “consumers” under the logic of Patch and
Streich, the Montana Supreme Court nonetheless has demonstrated a willingness to
extend the scope of liability when called upon to do so. This willingness indicates
that the Montana Supreme Court would extend liability to protect bystanders in
“greater need of protection.” Elmore, 451 P.2d at 89.
The damage to Plaintiffs’ property cannot be said to fall outside the scope of
reasonable foreseeability. The use of such “non-flammable” exploding targets, if
defective, has the potential of great destruction. (Doc. 1 at ¶ 16). Plaintiffs, as mere
bystanders, never had the luxury of inspecting the exploding targets for defects
before the third-party shooters engaged in target practice. Plaintiffs instead were
left with damaged property stemming from a third-party’s use of the allegedly
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 15 of 20
defective exploding targets. “Innocent victims should not be required to bear the
burden of injuries caused by defective products.” Osborne, 688 P.2d at 397.
Furthermore, other states that also employ the Restatement (Second) of Torts have
adopted bystander liability. See Osborne, 688 P.2d 390; Caruth, 463 P.2d 83;
Elmore, 451 P.2d 84. Using decisions from those neighboring jurisdictions and
existing Montana law, the Court reasonably can determine that the Montana
Supreme Court would adopt liability in favor of bystanders. Accordingly, it
remains plausible that Plaintiffs’ injuries exist within the range of danger that
liability for injuries to bystanders serves to protect.
Breach of Warranty Claim (Count IV)
Plaintiffs allege in their Complaint that Defendants stand liable for breach of
warranty. (Doc. 1 at ¶¶ 40-43). Plaintiffs claim that Defendants knew “users” of
the exploding targets “would rely on Tannerite to provide safe products” and that
the exploding target would be “suitable for its intended purposes and would not
cause a fire.” Id. at ¶ 41. Plaintiffs plead their warranty claim on the basis of strict
liability. (Doc. 11 at 20-21). Warranty claims based on strict liability differ from
warranty claims based in contract. Restatement (Second) of Torts § 402A cmt. m.
Montana no longer requires privity for breach of implied warranty claims.
Streich, 692 P.2d at 448. In fact, strict liability applies even if “the user or
consumer did not buy the product from or enter into any contractual relation with
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 16 of 20
the seller.” Mont. Code. Ann. § 27-1-719(3)(b). It has already been determined that
Plaintiffs have failed to allege and meet the broad definitions of “users” and
“consumers” under Montana law for purposes of strict products liability. The Court
has declined to dismiss Plaintiffs’ strict products liability claims, however, because
the Montana Supreme Court has not yet determined whether strict liability applies
to bystanders. Because Plaintiffs’ plead their breach of warranty claim on the basis
of strict liability, the claim survives.
Punitive Damages (Count V)
Punitive damages exist as “merely a component of recovery of the
underlying civil cause of action.” Finstad v. W.R. Grace & Co., 8 P.3d 778, 782
(Mont. 2000) (citation omitted). The Court has declined to dismiss Plaintiffs’
claims for strict products liability and breach of warranty. Accordingly, Plaintiffs’
derivative claim for punitive damages survives.
Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(2)
The Court analyzes second the alleged lack of personal jurisdiction.
Plaintiffs bear the burden of proving that personal jurisdiction exists.
Freestream Aircraft (Bermuda) Ltd. v. Aero Law Group, 905 F.3d 597, 602 (9th
Cir. 2018) (citation omitted). The Court must construe the complaint “in the light
most favorable to the plaintiff” when analyzing a motion to dismiss for lack of
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 17 of 20
personal jurisdiction. Milky Whey, Inc. v. Dairy Partners, LLC, 342 P.3d 13, 15
(Mont. 2015) (quoting Grizzly Sec. Armored Express, Inc. v. Armored Grp.,
LLC, 2011 MT 128, ¶ 12, 360 Mont. 517, 255 P.3d 143 (Mont. 2011). The Court
must accept as true the allegations in the complaint. Buckles by and through
Buckles v. Continental Resources, Inc., 402 P.3d 1213, 1216 (Mont. 2017).
Personal jurisdiction may exist in either a general or specific sense. Ford
Motor Company v. Montana Eighth Judicial District Court, 443 P.3d 407, 412
(Mont. 2019). General personal jurisdiction is based upon “the defendant’s
relationship with the forum state.” Id. Specific jurisdiction, on the other hand, is
based upon “the defendant’s relationship to both the forum state and the particular
cause of action.” Id. (citation omitted). Two requirements must be met for personal
jurisdiction to be proper: (1) personal jurisdiction exists under Montana’s long-arm
statute; and (2) the exercise of personal jurisdiction must not infringe on a
defendant’s due process rights. Id.
Whether personal jurisdiction exists over Defendant Daniel Tanner.
Defendants assert that the Court lacks personal jurisdiction over Daniel
Tanner as an individual. As an initial matter, the Court notes that general personal
jurisdiction has not been alleged by Plaintiffs, and would not provide jurisdiction
over Tanner. No evidence has been presented to show that Tanner was found
within the state of Montana or that his activities have been so “systematic and
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 18 of 20
continuous” as to establish general personal jurisdiction. Milky Whey, 342 P.3d at
The Court must first analyze whether specific personal jurisdiction exists
under the Montana long-arm statute. Any person subjects themselves to
jurisdiction in Montana as to any claim for relief arising from “the transaction of
any business within Montana” or “the commission of any act resulting in accrual
within Montana of a tort action.” Mont. R. Civ. P. 4(b)(1)(A)-(B). Tanner insists
that Plaintiffs failed to allege that Tanner transacted business in or acted or caused
a tort to occur in Montana. Based on the allegations in the Complaint (Doc. 1),
however, it appears that the exercise of personal jurisdiction over Tanner proves
proper. The users purchased the exploding targets Montana. The elements of the
tort accrued in Montana. Plaintiffs have alleged that the explosion of Defendants’
target caused a fire that resulted in damage to their property. (Doc. 1 at ¶¶ 9-26).
Next, the Court must determine whether the exercise of personal jurisdiction
over Tanner comports with due process. Courts apply the following three-prong
test to determine whether at the exercise of personal jurisdiction would comport
with due process: “(1) the nonresident defendant purposefully availed itself of the
privilege of conducting activities in Montana, thereby invoking Montana's laws;
(2) the plaintiff's claim arises out of or relates to the defendant's forum-related
activities; and (3) the exercise of personal jurisdiction is reasonable.”
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 19 of 20
Tanner purposefully availed himself of Montana. “A nonresident defendant
purposefully avails itself of the benefits and protections of the laws of the forum
state when it takes voluntary action designed to have an effect in the forum.” B.T.
Metal Works and Daryl Boyd, D.B.A. v. United Die and Manufacturing Co., 100
P.3d 127, 134 (Mont. 2004). Purposeful availment to the forum fails to exist when
a defendant’s only contacts are “random, fortuitous, attenuated, or due to the
unilateral activity of a third party.” Id.
Plaintiffs have alleged that Tanner operates under the assumed business
name “Tannerite Explosives.” (Doc. 1 at ¶ 4). Plaintiffs further allege that Tanner
is the “manager, owner, and Principal of Tannerite Sports, LLC, and engaged in,
controlled, directed, authorized, and/or ratified the conduct of Tannerite Sports,
LLC, and Tannerite Explosives.” Id. Notably, Plaintiffs allege that Defendants
have collectively marketed, advertised, sold and distributed the exploding targets
in Montana. Id. at ¶ 8. Taking the factual allegations in the Complaint as true and
in a light most favorable to Plaintiffs, Tanner, in his individual capacity,
voluntarily has taken action to sell his products in Montana. Tanner’s contacts with
Montana cannot be said to be “random” or “attenuated.” Plaintiffs satisfy the first
Second, the claims arise out of Tanner’s forum-related activities. The case
centers around Tanner’s and his companies’ sales of the exploding targets to
Case 4:21-cv-00093-BMM Document 17 Filed 05/06/22 Page 20 of 20
Montana customers and the damage it caused to Montana residents. Plaintiffs have
alleged that Defendants collectively have marketed, sold, advertised, and
distributed the exploding targets in Montana. A connection exists between
Tanner’s sales of the exploding targets and the Plaintiffs’ claims. Ford Motor
Company, 443 P.3d at 415. Plaintiffs satisfy the second prong.
Third, the exercise of personal jurisdiction over Tanner proves reasonable.
Once the first element is satisfied, “a presumption of reasonableness arises, which
the defendant can overcome only by presenting a compelling case that jurisdiction
would be unreasonable.” Ford Motor Company, 443 P.3d at 413. Defendants have
failed to present a compelling case to overcome the presumption. Plaintiffs satisfy
the third prong. Accordingly, this Court may exercise personal jurisdiction over
Accordingly, IT IS ORDERED that the motion (Doc. 5) is DENIED.
Dated the 6th day of May, 2022.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?