In 2011, fifteen-year-old Zachary Stringer shot his brother, eleven-year-old Justin Stringer, with a Remington Model 700 rifle equipped with an X-Mark Pro trigger. Although Zachary consistently maintained that he never touched the trigger before the rifle fired, the jury convicted him of manslaughter. In 2018, Zachary and his parents sued Remington in Mississippi State Court, emphasizing that Remington had in April 2014 recalled all Model 700 rifles with X-Mark Pro triggers because the rifles can and will spontaneously fire without pulling the trigger. The case was removed to Federal Court, and Defendants moved to dismiss. In their response, Plaintiffs asked to file a Federal Court Complaint to allege additional facts relating to the statute-of-limitations. The District Court, however, granted Defendants’ motion with prejudice, concluding that, even assuming Defendants’ acts prevented Plaintiffs from discovering their claims, Plaintiffs did not exercise due diligence.

The U.S. Fifth Circuit affirmed, but on different grounds.  “The district court focused its analysis on whether Plaintiffs had adequately pleaded their own due diligence. But we focus on another deficiency in Plaintiffs’ complaint: Their failure to meet the pleading standards of Rule 9(b).”

In their complaint, the Plaintiffs explain that they have found public resources that contradict Remington’s public statements regarding the safety of the XMP trigger. They also allege that Remington had “actual and/or physical knowledge of manufacturing, and/or, design deficiencies in the XMP Fire Control years before the death of Justin Stringer” and that the company received customer complaints regarding trigger malfunctions as early as 2008. “But” the Court determined, “Plaintiffs do not make the leap to fraudulent concealment. They say merely that Remington ‘ignored’ notice of a safety related problem. Our court has previously disallowed the practice of basing claims of fraud on speculation and conclusory allegations, even when the facts pleaded in a complaint are peculiarly within the opposing party’s knowledge. Here, Plaintiffs do not make even those conclusory claims.”

Although noting that dismissal for failure to comply with Rule 9(b) is almost always done with leave to amend, the Plaintiffs failed to challenge that part of the District Court’s ruling on appeal.  Hence, the dismissal with prejudice was affirmed.

 

Stringer v. Remington Arms, 52 F.4th 660 (5^th Cir. 2022).