United States District Court, W.D. Wisconsin
A.M.Z., a minor, N.A.Z., a minor, and E.K.Z., a minor, by their guardian BETH ANN PATTERSON, Plaintiffs,
REMINGTON ARMS COMPANY, LLC, and SPORTING GOODS PROPERTIES, INC., Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
action, plaintiffs A.M.Z, N.A.Z., and E.K.Z., all minors, by
their guardian Beth Ann Patterson, allege that defendants
Remington Arms Company, LLC (“RAC”) and Sporting
Goods Properties, Inc. (“SGPI”) are liable for
the wrongful death of their father, who died of a gunshot
wound after his Remington rifle allegedly misfired.
Specifically, plaintiffs claim that RAC, as the apparent
manufacturer of this model or similar Remington model rifles
since 1993, and SGPI as the manufacturer before 1993, should
be held strictly liable for its defective design and
inadequate instructions or warnings. Plaintiffs also claim
the defendants were negligent in the design and manufacture
of the gun, as well as their failure to warn. Defendants move
to dismiss the strict liability claims only on the grounds
that the allegedly defective rifle here was manufactured in
1975, making both claims barred by Wisconsin's
fifteen-year statute of repose, Wis.Stat. § 895.047(5).
(Dkt. #9.) Because the merits of the defendants' statute
of limitations defense cannot be determined on the
allegations in plaintiffs' complaint alone,
defendants' motion to dismiss will be denied.
resolving a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the court accepts as true all well-pled factual
allegations in the complaint, Adams v. City of
Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014), and
views them in the light most favorable to the non-movant,
Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010)
(citing Zimmerman v. Tribble, 226 F.3d 568, 571 (7th
Cir. 2000)). For purposes of the present motion, the court
accepts as true the following allegations of fact from the
Amended Complaint. (Dkt. #8.)
are minor children and residents of Sauk County, Wisconsin,
who are bringing suit through their guardian and mother, Beth
Ann Patterson. Plaintiffs are the children of Robert Zick,
who was killed after a Remington Model 700, .30-06 caliber
bolt action rifle allegedly misfired. They seek recovery for
wrongful death on four counts. Counts I and II are for strict
liability for detective design and strict liability for
inadequate instructions or warnings, respectively. Counts III
and IV are for negligent design and manufacture and negligent
failure to warn, respectively.
Remington Arms Company, LLC, is a Delaware company with its
principal place of business in North Carolina. RAC's
members are also citizens of North Carolina and Delaware.
Defendant Sporting Goods Properties, Inc., is a Delaware
corporation with its principal place of business in Delaware.
Given that the parties are completely diverse and the amount
in controversy exceeds $75, 000, this court has subject
matter jurisdiction over this action pursuant to 28 U.S.C.
SGPI are in the business of designing, manufacturing,
assembling, distributing and selling firearms, including the
Remington Model 700, .30-06 caliber bolt action rifle at
issue here. Central to defendants' pending motion to
dismiss, plaintiffs allege that the gun was manufactured in
motion to dismiss under Rule 12(b)(6) is designed to test the
complaint's legal sufficiency. See Fed. R. Civ.
P. 12(b)(6). Dismissal is only warranted if no recourse could
be granted under any set of facts consistent with the
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). The motion to dismiss phase of the
proceedings “is not an opportunity for the court to
find facts or weigh evidence.” My Health, Inc. v.
Gen. Elec. Co., No. 15-CV-80-JDP, 2015 WL 9474293, at *2
(W.D. Wis. Dec. 28, 2015).
their motion, defendants argue that plaintiffs' strict
liability claims are barred on the face of the pleadings by
Wisconsin's fifteen-year statute of repose which provides
in pertinent part:
A defendant is not liable to a claimant for damages if the
product alleged to have caused the damage was manufactured 15
years or more before the claim accrues, unless the
manufacturer makes a specific representation that the product
will last for a period beyond 15 years.
Wis. Stat. § 895.047(5).
response, plaintiffs rely on an exception to the statute,
applicable where “the manufacturer makes a specific
representation that the product will last for a period beyond
15 years.” Id. In support of this position,
plaintiffs attach various advertisements and other materials,
purportedly containing specific representations indicating
the longevity of defendants' products exceeds fifteen
years. In considering a motion to dismiss under Rule 12, the
court, however, cannot rely on materials that are presented
outside of the pleadings. Fed.R.Civ.P. 12(d); Tierney v.
Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (holding that a
court may not consider materials outside of the pleadings in
the context of Rule 12(b)). There is an exception, of course,
where a document is referenced in, and central to, the
complaint, Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687, 690 (7th Cir. 2012), but representations about
the life of the gun at issue here are neither referenced in,
nor central to, plaintiffs' claims.
their reply to the motion, defendants would fault plaintiffs
for failing to amend their complaint to “contain
factual allegations to support qualifying for this limited
exception and thereby make their strict liability claims
timely.” (Defs.' Reply (dkt. #20) 2.) However, a
plaintiff need not anticipate an affirmative defense in her
pleading. Independent Trust Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 935 (7th Cir. 2012). Under Rule
8(c)(1), the statute of limitations is an affirmative
defense. Fed.R.Civ.P. 8(c)(1). As such, dismissing a
complaint on statute of limitation grounds pursuant to Rule
12(b)(6) would be “irregular” at best. United
States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir.