Dianna Humphrey v. Remington Arms Co.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DIANNA HUMPHREY, as an individual No. 13-35477
and as personal representative for Bradley
Humphrey, et al., D.C. No. 1:12-cv-00122-RFC
Plaintiff - Appellant,
MEMORANDUM*
v.
REMINGTON ARMS COMPANY, LLC;
SPORTING GOODS PROPERTIES,
INC.; E. I. DU PONT DE NEMOURS
AND COMPANY,
Defendants - Appellees.
SHARON J. BARRERE; L. BRICE No. 13-35480
BARRERE,
D.C. No. 1:12-cv-00136-RFC
Plaintiffs - Appellants,
v.
REMINGTON ARMS COMPANY, LLC;
SPORTING GOODS PROPERTIES,
INC.; E. I. DU PONT DE NEMOURS
AND COMPANY,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted February 4, 2015
Seattle Washington
Before: FISHER, BEA, and MURGUIA, Circuit Judges.
Appellants Dianna Humphrey and Sharon and Brice Barrere appeal the
district court’s dismissal of their personal injury actions against Appellees
Remington Arms Co., LLC, Sporting Goods Properties, Inc., and E.I. du Pont de
Nemours & Co. (collectively, “Remington”). The district court dismissed
Appellants’ claims as barred by the applicable three-year statute of limitations. We
have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Gant v. Cnty. of
Los Angeles, 772 F.3d 608, 614 (9th Cir. 2014), we affirm.
In 2012, Appellants alleged four causes of action under Montana law: strict
liability for design defect and failure to warn, negligence, and loss of consortium.
Their claims arise from injuries sustained in 1989 and 2007, respectively, when
Appellants’ Remington rifles accidentally discharged. Montana law prescribes a
three-year statute of limitations period for commencement of an action in tort.
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Mont. Code Ann. § 27-2-204(1). Absent tolling, therefore, Appellants filed their
claims outside their respective limitations periods.
Appellants argue that their limitations periods should be tolled by either the
discovery doctrine, Mont. Code Ann. § 27-2-102(3)(a), or the fraudulent
concealment doctrine, Mont. Code Ann. § 27-2-102(3)(b). These doctrines toll the
limitations period “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
(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.”
Mont. Code Ann. § 27-2-102(3) (emphasis added).
Appellants failed to exercise due diligence. All three Appellants
“presumed” that the Remington rifles had discharged in response to a trigger pull
and made no “further investigation” into a possible defect. If Appellants had
exercised due diligence by investigating the cause of their injuries, they could have
discovered the facts constituting their claims, as other plaintiffs injured by
Remington rifles have been able to do. Therefore, neither the discovery doctrine
nor the fraudulent concealment doctrine tolls Appellants’ claims. See, e.g., Much
v. Sturm, Ruger & Co., 502 F. Supp. 743, 745 (D. Mont. 1980) (citing Monroe v.
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Harper, 518 P.2d 788, 790 (1974)). The district court correctly concluded that
Appellants have not alleged facts that would establish their entitlement to tolling
under Mont. Code Ann. § 27-2-102(3).
AFFIRMED.
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