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Sharon J. Barrere and v. Remington Arms Company

April 29, 2013

SHARON J. BARRERE AND
L. BRICE BARRERE,
PLAINTIFFS,
v.
REMINGTON ARMS COMPANY, LLC,
SPORTING GOODS PROPERTIES, INC., AND E.I. DUPONT DE NEMOURS AND COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Richard F. Cebull Senior U.S. District Judge

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.

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 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 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. ...


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