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Davis v. Dunham's Athleisure Corp.

United States District Court, E.D. Missouri, Southeastern Division

April 11, 2017

JAMES DAVIS, Plaintiff,
v.
DUNHAM'S ATHLEISURE CORPORATION, et al . Defendants.

          CORRECTED MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff bought a used rifle from Dunham's Athleisure Corporation d/b/a Dunham's Sports (“Dunham's”) on November 14, 2015. The firearm had been sold to Dunham's by firearms distributor Century International Arms, Inc. (“Century”). Plaintiff claims defendants Dunham's and Century are liable for injuries he received when plaintiff used the firearm. Defendant Dunham's has moved to dismiss (#3).

         I. Factual Background

         According to the complaint, plaintiff bought a Mosin-Nagant Model 91/30 Rifle from Dunham's in Poplar Bluff, Missouri. The next day, plaintiff was using the rifle when he depressed the trigger and it exploded in close proximity to his head and severely injured his face. Plaintiff filed this lawsuit bringing six counts against the two defendants --- defendant Dunham's (the store where he purchased the rifle) and defendant Century (the firearms distributor that sold the used rifle to Dunham's). Dunham's has moved to dismiss the three counts against it, which are as follows:

• Count I for Negligence, alleging that Dunham's was negligent in its development, packaging, and/or sale of the rifle;
• Count II for Strict Liability, alleging that the rifle Dunham's sold was unreasonably dangerous and defective when put to reasonable use; and
• Count III for Breach of Warranty, based on express or implied warranty that the rifle was reasonably fit for the purpose and use for which it was intended. Plaintiff alleges that Dunham's made an express warranty that “no injury can occur if the barrel is pointed in a safe direction.”

         Dunham's has moved to dismiss those claims against it under Federal Rule of Civil Procedure Rule 12(b)(6).

         II. Legal Standard

         The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim must be facially plausible, meaning that the ‘factual content. . . allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must “accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)). However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” will not pass muster. Iqbal, 556 U.S. at 678.

         III. Discussion

         Defendant Dunham's contends this Court should dismiss the claims against it under § 537.762 RSMo, which provides that

1. A defendant whose liability is based solely on his status as a seller in the stream of commerce may be dismissed from a products liability claim as provided in this section.
2. This section shall apply to any products liability claim in which another defendant, including the manufacturer, is properly before the court and from whom total recovery ...

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