Case: 18-60590 Document: 00516536754 Page: 1 Date Filed: 11/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 7, 2022
No. 18-60590
Lyle W. Cayce
Clerk
Roger Stringer; Kimberly Hyder; Zachary Stringer,
Plaintiffs—Appellants,
versus
Remington Arms Company, L.L.C.; Sporting Goods
Properties, Incorporated; E.I. Du Pont De Nemours and
Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:18-CV-59
Before Wiener, Graves, and Oldham, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
This is a products-liability action involving an allegedly defective
trigger mechanism on a Remington rifle. The district court dismissed the suit
with prejudice. We AFFIRM.
I.
In June 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. Zachary was arrested and charged with murder.
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According to Plaintiffs, however, Zachary “consistently maintained that he
never touched the trigger before the rifle fired.” The jury convicted Zachary
of manslaughter, and the Mississippi Supreme Court affirmed that
conviction. Stringer v. State, 131 So. 3d 1182, 1184–87 (Miss. 2014).
In March 2018, Zachary and his parents (collectively, “Plaintiffs”)
sued Remington, the retailer that sold the rifle, and Remington’s
predecessors in interest (collectively, “Defendants”) in Mississippi state
court. Plaintiffs emphasized 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.” They brought state-law
claims for products liability, failure to warn, negligence, and gross negligence.
The case was removed to federal court, and Defendants moved to
dismiss under Rule 12(b)(6). In their response to that motion, Plaintiffs asked
to file a federal-court complaint to allege additional facts related to the
statute-of-limitations. But the district court granted Defendants’ motion
with prejudice, concluding that Plaintiffs’ suit was barred by Mississippi’s
three-year statute of limitations. The court found, among other things, that
Mississippi’s fraudulent concealment statute could not toll the statute of
limitations because—even assuming Defendants’ acts prevented Plaintiffs
from discovering their claims—Plaintiffs did not exercise due diligence.
Plaintiffs appealed, challenging only the district court’s ruling on fraudulent
concealment.
II.
To survive a motion to dismiss, a complaint “must provide the
plaintiff’s grounds for entitlement to relief—including factual allegations
that when assumed to be true ‘raise a right to relief above the speculative
level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). But heightened pleading
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requirements apply to claims involving fraud. Under Federal of Civil
Procedure Rule 9(b), a party alleging fraud or mistake “must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). State-law fraud claims—like the ones Plaintiffs advance here—are
subject to this requirement. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 550–
51 (5th Cir. 2010). 1
Here, the district court’s subject-matter jurisdiction was based on
diversity of citizenship. We must therefore apply “federal procedural and
evidentiary rules, and the substantive laws of the forum state.” Huss v.
Gayden, 571 F.3d 442, 449–50 (5th Cir. 2009) (citing Erie R.R. Co. v.
Tompkins,
304 U.S. 64, 78 (1938)). Under the Erie doctrine, statutes of
limitations are “substantive,” so we apply “the statute of limitations that the
forum state would apply.”
Id. at 450 (citing Guar. Tr. Co. v. York,
326 U.S.
99, 109–10 (1945)).
Mississippi has a general three-year statute of limitations. Miss. Code
§ 15-1-49(1). For “non-latent injuries” like the one alleged here, the cause of
action accrues on the date of the injury. See id. § 15-1-49(1)-(2). But
Mississippi allows for the tolling of a statute of limitations based on a
defendant’s fraudulent concealment. Miss. Code § 15-1-67. Fraudulent
concealment has two elements: that “(1) some affirmative act or conduct was
done and prevented discovery of a claim, and (2) due diligence was
performed on [the plaintiff’s] part to discover it.” Whitaker v. Limeco Corp.,
32 So. 3d 429, 436 (Miss. 2010) (quoting Channel v. Loyacono,
954 So. 2d 415,
423 (Miss. 2007)) (internal quotation marks omitted).
1
Indeed, Mississippi has a parallel rule requiring “the circumstances constituting
fraud or mistake” to be “stated with particularity” in pleadings. Miss. R. Civ. P. 9(b).
3
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III.
The parties do not dispute that the statute of limitations governing
Plaintiffs’ claims would normally have expired on June 11, 2014—three years
after the date of Justin Stringer’s death. But Plaintiffs, who filed suit in March
2018, argue that the statute of limitations was tolled by Defendants’
fraudulent concealment. The district court rejected that argument. We agree.
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). 2
As noted above, Rule 9(b) requires that “[i]n alleging fraud or
mistake, a party must state with particularity the circumstances constituting
fraud or mistake.” Fed. R. Civ. P. 9(b). Here, of course, Plaintiffs are not
pleading fraud—they are merely asserting fraudulent concealment as a
defense to the statute of limitations. But our court has previously found that
Rule 9(b) applies in fraudulent concealment cases. See Summer v. Land &
Leisure, Inc., 664 F.2d 965, 970–71 (5th Cir. Unit B 1981).
And Plaintiffs fail to meet Rule 9(b)’s requirements. In their
complaint, they 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 Plaintiffs do
not make the leap to fraudulent concealment. They say merely that
2
We do not raise Rule 9(b) sua sponte. Remington raised the issue in its response
to Plaintiffs’ appeal. Plaintiffs did not respond.
4
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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.” See Tuchman v. DSC
Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir.1994) (citation omitted). Here,
Plaintiffs do not make even those conclusory claims. Their complaint fails to
meet the pleading standards of Rule 9(b), and the district court was right to
dismiss it.
“[D]ismissal for failure to comply with Rule 9(b) is almost always with
leave to amend.” Summer, 664 F.2d at 971 (citation omitted). Here, the
district court denied Plaintiffs that chance. But Plaintiffs failed to challenge
that decision on appeal. So we must and do hereby AFFIRM the district
court’s dismissal with prejudice.
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Wiener, Circuit Judge, dissenting:
Despite my respect for my colleagues of the majority, I am compelled
to dissent.
In 2011, Justin Stringer instantly died when a Remington Model 700
bolt-action rifle equipped with an X-Mark Pro trigger discharged while in the
hands of his brother Zachary. Both were minors at the time. Despite
Zachary’s assertions that he “never touched the trigger before the rifle
fired,” he was arrested six days after the shooting, stood trial for murder, and
was convicted of manslaughter for the shooting death of his brother. In April
2014, while Zachary was serving his sentence—and after the Mississippi
Supreme Court affirmed his conviction—Remington recalled all Model 700
rifles with X-Mark Pro triggers. Remington’s recall notice stated that those
rifles could “cause injury or death” as the result of an “unintended
discharge.”
Four years after the recall, Zachary, along with his parents, Roger
Stringer and Kimberly Hyder (“Plaintiffs”), sued Defendant-Appellee
Remington Arms Company (and several related entities) in Mississippi state
court. After the case was removed to federal court, it was dismissed with
prejudice under Rule 12(b)(6), based on Mississippi’s three-year statute of
limitations.
Plaintiffs contend that Remington’s fraudulent concealment tolled
the statute of limitations for their claims. Under Mississippi law, a
defendant’s fraudulent concealment tolls a statute of limitations when (1) the
defendant’s affirmative act or conduct prevented discovery of a claim and (2)
the plaintiff exercised due diligence to discover the claim, i.e., acted as would
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a reasonable person “similarly situated.” Both elements are “questions of
fact, not law.” 1
The panel majority concludes that the Plaintiffs’ allegations are not
sufficient to toll Mississippi’s three-year statute of limitations based on
Remington’s fraudulent concealment because their complaint fails to comply
with the requirements for pleading fraud under Federal Rule of Civil
Procedure 9(b). The majority reasons that the complaint’s allegations that
Remington ignored notice of a safety-related problem do not amount to
fraudulent concealment. At the 12(b)(6) stage, however, a court must accept all
factual allegations in the complaint as true and view them in the light most
favorable to the plaintiff. 2 The majority opinion fails to comply with this
directive, instead narrowly construing the allegations in the complaint—that
Remington was aware of a defect in the X-Mark Pro trigger and concealed it
from consumers—as failing to satisfy the requirement to plead fraud with
particularity.
I.
Under Mississippi law, fraudulent concealment has two elements:
that “(1) some affirmative act or conduct was done and prevented discovery
of a claim, and (2) due diligence was performed on [the plaintiff’s] part to
discover it.” 3
The panel majority’s holding that Plaintiffs failed to comply with Rule
9(b)’s requirement to plead fraud with specificity goes to the affirmative-act
prong of fraudulent concealment. That holding ignores the numerous
1
Whitaker v. Limeco Corp., 32 So. 3d 429, 436 (Miss. 2010) (quoting Andrus v. Ellis,
887 So. 2d 175, 180 (Miss. 2004)).
2
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
3
Whitaker, 32 So. 3d at 436 (quoting Channel v. Loyacono,
954 So. 2d 415, 423
(Miss. 2007)).
7
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allegations in the complaint regarding Remington’s knowledge of a safety
issue and the company’s fraud by omission, i.e., its failure to disclose the
safety issue to the public.
To support Plaintiffs’ contention that Remington knew about the
defect and took actions to conceal it, the complaint alleges that Plaintiffs
“have learned Remington was receiving customer complaints from the field
involving reported malfunctions with the XMP as early as 2008.” Plaintiffs
assert that Remington’s knowledge of a safety issue “contradicts [its]
preposterous public statements, regarding the safe utility” of the X-Mark Pro
Trigger.
Plaintiffs also cite a 2010 CNBC documentary titled Remington Under
Fire and a 2015 update to that story titled The Reckoning–Remington Under
Fire. In its official response to the 2010 CNBC story, Remington stated that
“[t]he Model 700, including its trigger mechanism, has been free of any
defect since it was first produced and, despite any careless reporting to the
contrary, the gun’s use by millions of Americans has proven it to be a safe,
trusted and reliable rifle.”
Plaintiffs’ complaint includes two exhibits: (1) a protective order
concerning a redesign of the X-Mark Pro trigger and (2) the 2015 deposition
testimony of a Remington employee who stated that, for the X-Mark Pro
trigger, “the application of excess Loctite to the trigger assembly was not []
intended with the design.” That employee also acknowledged that
Remington was aware of such a problem based on customer videos from 2010
and 2014 showing defects with the X-Mark Pro trigger. He stated that those
videos prompted an investigation and that Remington was eventually able to
replicate the defect, learning that “there was an issue” with the rifles. Citing
this testimony, Plaintiffs alleged that “Remington had previously received
notice of a safety related problem [in the X-Mark Pro trigger], which the
company apparently ignored in 2010.”
8
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The complaint’s allegations indicate that Remington knew about
problems with the X-Mark Pro trigger before the recall but did not disclose
its knowledge of those problems during the limitations period. And, contrary
to Defendants’ assertion that the complaint allegations relate only to the
“Walker” trigger, the deposition testimony cited in the complaint expressly
references the “XMP” trigger at issue here.
The panel majority fails to acknowledge that “the pleading
requirements of Rule 9(b) may be relaxed in certain circumstances—when,
for instance, the facts relating to the fraud are peculiarly within the
perpetrator’s knowledge.” 4 Fraudulent concealment, by its very nature, is
one such circumstance.
Plaintiffs have alleged, with as much particularity as the facts within
their knowledge permit, that Remington was aware of a defect and failed to
disclose it to consumers for years. Accepting the complaint allegations as true
and viewing them in the light most favorable to Plaintiffs, they have
sufficiently pleaded the “affirmative act” element of fraudulent concealment
to survive Rule 9(b) dismissal. 5
II.
Even though Plaintiffs sufficiently alleged that Remington engaged in
an affirmative act of concealment regarding the trigger defect, they also had
4
U.S. ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 330 (5th Cir. 2003) (internal
quotation marks and citation omitted); see also U.S. ex rel. Russell v. Epic Healthcare Mgmt.
Grp.,
193 F.3d 304, 308 (5th Cir. 1999), abrogated on other grounds by U.S. ex rel. Eisenstein
v. City of New York, New York,
556 U.S. 928 (2009).
5
The district court also indicated that Plaintiffs likely satisfied the affirmative act
prong of fraudulent concealment. Despite dismissing Plaintiffs’ claims on the due diligence
prong, the district court observed that “it is not facially obvious that the Plaintiffs failed to
adequately demonstrate that Defendants’ affirmative acts or conduct prevented discovery
of the claim.”
9
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to allege that they exercised due diligence to discover the facts supporting
their claim. The panel majority concludes that Plaintiffs failed to plead fraud
(i.e., an affirmative act of concealment) with specificity, but my colleagues
did not analyze whether the district court erred in concluding that Plaintiffs’
complaint reveals that they did not exercise due diligence. The district court
did err in that conclusion, however, because it failed to consider whether a
reasonable person similarly situated to Plaintiffs would have discovered the
claims they now advance.
The Mississippi Supreme Court has ruled that the test for due
diligence is “whether a reasonable person similarly situated would have
discovered potential claims.” 6 The district court addressed the “due
diligence” element as follows:
A rifle spontaneously firing and killing someone absent
manipulation by the user certainly would put a reasonable
person on notice to investigate further. Plaintiffs’ actions
following the incident suggest more of a willful ignorance than
a thought to investigate an abnormal event.
That court concluded that “Plaintiffs in this case may have not known the
precise reason that the subject rifle fired without being manipulated, but a
reasonable person knows that guns typically do not discharge on their own.”
Although Plaintiffs might not have known why the rifle fired, “they
unequivocally knew that the subject rifle should not have discharged.” 7
6
Whitaker, 32 So. 3d at 436 (quoting Andrus,
887 So. 2d at 180).
7
The district court’s opinion dismissing the case did not discuss or cite the
Mississippi Supreme Court’s opinion.
10
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The district court’s analysis fails to account for the “similarly
situated” facet of Mississippi’s test for due diligence. 8 The events that
followed Justin Stringer’s death complicate this analysis. The district court
reasoned that because anyone should know that rifles are not supposed to fire
on their own, Plaintiffs were not diligent when they failed to (1) investigate
their claims or (2) contact Remington, after Justin was killed.
A. Roger Stringer and Kimberly Hyder’s Diligence
In evaluating whether the victim’s parents, Roger Stringer and
Kimberly Hyder, 9 exercised due diligence, i.e., whether each acted as would
a “reasonable person similarly situated,” 10 the district court should have
considered that there had been a criminal trial about whether their son,
Zachary, pulled the trigger.
At that trial, the state introduced seemingly conclusive evidence that
the shooting was not accidental, i.e., that someone must have pulled the
rifle’s trigger. A forensic expert from the Mississippi Crime Lab conducted
tests on the rifle and its trigger. She testified that (1) the rifle never produced
any accidental discharge and was “in good working order,” and (2) the
trigger required a pull of more than five pounds to release. 11
8
Whitaker, 32 So. 3d at 436 (quoting Andrus,
887 So. 2d at 180). Notably,
Defendants do not mention the words “similarly situated” in their brief.
9
Roger was the main actor in discovering the rifles’ recall; the briefs do not discuss
Kimberly Hyder’s (Zachary’s mother) actions. This section therefore focuses primarily on
Roger’s actions, which can be attributed to Hyder based on the allegation that Roger’s
March 14, 2015 internet search “was the first time any of the Plaintiffs had learned of any
potential defects in the Remington 700 XMP rifle.”
10
Whitaker, 32 So. 3d at 436.
11
State Court Record on Appeal at 248-250, Stringer v. State, 2013-KA-00586-SCT
(Miss. July 18, 2013). This court may take judicial notice of the Mississippi state court
record of Zachary Stringer’s criminal case. See Biliouris as next friend of Biliouris v. Patman,
11
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In addition to that expert testimony, Roger Stringer testified against
Zachary. He stated that the rifle “had a ‘hard trigger’” that took considerable
force to fire. 12 Roger also stated that (1) he had taught Zachary about gun
safety and (2) Zachary was one of the safest people he knew with a firearm. 13
This testimony about gun safety was presumably offered to undermine
Zachary’s insistence that the rifle fired without its trigger being pulled.
These facts indicate that, during the trial and for some time afterward,
Roger did not believe Zachary’s account that the rifle’s trigger had not been
pulled. The overwhelming evidence presented at trial (including the forensic
expert’s testimony and Remington’s peerless reputation of manufacturing
safe guns with safe trigger mechanisms) and the jury’s verdict, served to
confirm Roger’s belief that his older son had in fact pulled the trigger. A
person “similarly situated” to Roger—who had participated in a jury trial
that resulted in a manslaughter conviction and who had seen a plethora of
evidence that the defendant must have pulled the gun’s trigger—might
reasonably have not been on the lookout for information about defective
Remington triggers.
Moreover, the instant complaint alleges that, after Roger learned of
the recall, he hired an investigator to review the record in Zachary’s criminal
trial and to determine if any possible connection existed between a deficiency
751 F. App’x 603, 604 (5th Cir. 2019) (per curiam) (“Taking judicial notice of directly
relevant public records is proper on review of a Rule 12(b)(6) motion. ‘A court may take
judicial notice of the record in prior related proceedings.’”) (quoting In re Missionary
Baptist Found., Inc.,
712 F.2d 206, 211 (5th Cir. 1983)); Wildman v. Medtronic, Inc.,
874 F.3d
862, 866 (5th Cir. 2017) (concluding that the district court, in ruling on a motion to dismiss
under Rule 12(b)(6), could take judicial notice of matters of public record).
12
State Court Record on Appeal at 341, Stringer v. State, 2013-KA-00586-SCT
(Miss. July 18, 2013).
13
Id. at 347.
12
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in a Model 700 rifle fitted with the XMP trigger mechanism and Justin’s
death. This shows that, soon after Roger learned of facts that would excite
inquiry, he took appropriate investigatory actions.
Viewing the facts in the light most favorable to Plaintiffs, as a court
must do at the Rule 12(b)(6) stage, Roger has alleged enough facts to satisfy
the diligent-inquiry requirement to survive a Rule 12(b)(6) motion to dismiss.
B. Zachary Stringer’s Diligence
The district court improperly conflated Zachary Stringer’s claims
with those of his parents when it summarily concluded that none of the
Plaintiffs exercised due diligence. The diligence inquiry must consider
separately whether Zachary acted as a reasonable person “similarly
situated.” As that inquiry pertains to Zachary, “similarly situated” means an
incarcerated minor whose parents, an expert witness, and a jury all believed
that he pulled the rifle’s trigger.
Several facts set out in the complaint support the proposition that
Zachary, an incarcerated minor with parental antipathy, was legally diligent
in filing this case. First, soon after he was released from jail, he filed a postconviction motion with the Mississippi Supreme Court. This shows that,
after he learned of Remington’s recall and the possible connection to his
conviction, he investigated and took action.
Second, depending on how Remington’s April 2014 notice was
distributed to the public—an issue on which the current record is silent 14—
Zachary, an incarcerated minor, would not likely have had immediate access
to that notice, if he had any access at all. While Zachary was incarcerated, he
14
But see Oral Argument Tr. at 11:14–12:05, available at
http://www.ca5.uscourts.gov/OralArgRecordings/18/18-60590_8-7-2019.MP3
(indicating that the recall notice was distributed only via a post on Remington’s website).
13
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could not possibly have seen notices posted on billboards, displayed in
sporting goods stores, or sent via direct mail to gun owners (of which he was
not one). He also would likely have had limited access to news media,
including hunting magazines.
Third, during the limitations period, Zachary likely had limited access
to information in general. The record is also silent as to whether Zachary was
able to access the Internet while he was serving his sentence.
Finally, Zachary was a minor during the entire limitations period. He
was fifteen years old when he was arrested in 2011. He remained incarcerated
throughout the limitations period, until his release in October 2016 at age
twenty. Mississippi law, through its “minor savings clause,” goes so far as to
toll any applicable statutes of limitations until a minor turns twenty-one. 15
Under that provision, Zachary’s claim—filed within three years after he
turned twenty-one—was timely. This argument was not properly before the
panel on appeal, however, because Plaintiffs’ counsel raised it for the first
time at oral argument before this court. 16
Viewing the complaint allegations in the light most favorable to
Zachary, he has alleged enough facts to satisfy the diligent-inquiry
requirement at the Rule 12(b)(6) stage. 17
15
Miss. Code § 15-1-59 tolls the running of a statute of limitations until a minor
claimant turns twenty-one. The Mississippi Supreme Court has held that the minor savings
statute applies in wrongful-death actions. Pioneer Cmty. Hosp. of Newton v. Roberts, 214 So.
3d 259, 263–65 (Miss. 2017).
16
See Roebuck v. Dothan Sec., Inc., 515 F. App’x 275, 278 (5th Cir. 2013).
17
See Robinson, 763 So. 2d at 889 (“There was enough conflicting evidence before
the circuit court regarding the due diligence issue to deny the motion for summary
judgment.”).
14
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C. Matters of Public Record
On appeal, Defendants rely on Spann v. Diaz, 987 So. 2d 443, 449
(Miss. 2008), and Carder v. BASF Corp.,
919 So. 2d 258, 261 (Miss. Ct. App.
2005), for the proposition that there can be no fraudulent concealment when
the facts supporting a cause of action are matters of public record. Although
that proposition weighs against a conclusion that Plaintiffs were diligent,
given that Remington issued a public recall of the subject rifles in 2014, those
cases (1) do not state that a matter of public record always defeats a fraudulent
concealment claim and (2) are distinguishable from the facts here.
In Spann, the Mississippi Supreme Court held that a plaintiff who
brought a legal-malpractice action against her former lawyer could not
establish the elements of fraudulent concealment. 18 The Spann court
explained that the plaintiff was on notice of her legal-malpractice claim, or
should have been, when the Mississippi Supreme Court issued an opinion
that denied her underlying claim and specifically described her lawyer’s
mistakes. 19 The Spann court concluded that the plaintiff’s claim was timebarred because its earlier “opinion and denial of a motion for rehearing are
public record and [the plaintiff] had all the information necessary to pursue her
claim without being directly told that [her lawyer] was negligent.” 20
Unlike this case, Spann was decided on summary judgment. And
unlike the plaintiff in Spann—who was also the plaintiff in the case for which
the Mississippi Supreme Court issued the opinion that started the running of
that plaintiff’s statute of limitations—Plaintiffs here were never notified of
Remington’s April 2014 recall in a similar manner as a party to a lawsuit
18
Spann, 987 So. 2d at 448–50.
19
Id. at 449.
20
Id. at 450 (emphasis added).
15
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would be notified of a court opinion. Moreover, the Spann court qualified its
“matter of public record” holding by adding that the plaintiff there in fact
“had all the information necessary to pursue her claim” when the earlier
opinion was issued. 21
In Carder, the Court of Appeals of Mississippi held that the plaintiffs,
who asserted a claim based on an alleged price-fixing scheme, could not
satisfy the elements of fraudulent concealment because a news article
describing the defendant’s conduct was published in The Wall Street Journal
many years earlier. 22 The court stated that “[w]hen the information is placed
in the public domain, the doctrine of fraudulent concealment ceases to be
applicable.” 23
After that pronouncement, however, the court limited its reasoning to
the facts of the case: “This opinion is not intended to suggest that
information published in a newspaper located anywhere automatically is
sufficient to commence the running of the statute of limitation on a latent
injury, but is limited solely to the facts of this case.” 24
That express limitation, as well as the fact that the Mississippi
Supreme Court has never cited Carder—a decision from an intermediate
appellate court—severely limits Carder’s persuasive value in our Erie
analysis. Moreover, Carder concerned the “latent injury” discovery rule,
which is not at issue here. And, unlike price-fixing allegations in Carder, the
21
Id.
22
Carder, 919 So. 2d at 260, 262.
23
Id. at 262.
24
Id.
16
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instant recall notice was not published in a newspaper, and the record is silent
as to how that notice was distributed to the public.
In sum, Remington’s April 2014 recall notice is not dispositive of the
diligence inquiry.
III.
The majority opinion ignores the complaint’s allegations that
Remington was aware of a defect in the X-Mark Pro trigger yet concealed it
from consumers. The majority opinion also fails to apply the more relaxed
requirement to plead fraud under Rule 9(b) applicable when the facts
regarding fraud are within the knowledge of the perpetrator.
The district court’s judgment should be reversed. Plaintiffs
adequately pleaded that (1) Remington committed an affirmative act of
concealment (i.e., fraud), and (2) they exercised due diligence, as would a
reasonable person similarly situated, to discover their claims.
For the foregoing reasons, I respectfully dissent.
17
