United States District Court, E.D. Missouri, Southeastern Division
CORRECTED MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
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).
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
• 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
has moved to dismiss those claims against it under Federal
Rule of Civil Procedure Rule 12(b)(6).
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.
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 ...