     Case: 16-11216        Document: 00513958595          Page: 1     Date Filed: 04/19/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                        No. 16-11216                                 FILED
                                                                                April 19, 2017
                                                                               Lyle W. Cayce
EDWARD BURDETT,                                                                     Clerk

                                                    Plaintiff - Appellant,

v.

REMINGTON ARMS COMPANY, L.L.C.; SPORTING GOODS
PROPERTIES, INCORPORATED,

                                                    Defendants - Appellees.


                     Appeal from the United States District Court
                          for the Northern District of Texas




Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge. *
JUNELL, District Judge:
      Edward Burdett was injured while hunting in Texas when his rifle
suddenly discharged, firing a bullet through his foot. He sued, alleging five
products liability claims and one claim under the Texas Deceptive Trade
Practices-Consumer Protection Act. The district court entered a summary
judgment in favor of Remington Arms Company, LLC and Sporting Goods
Properties, Inc. For the reasons explained below, we AFFIRM.




      *   District Judge of the Western District of Texas, sitting by designation.
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                                       No. 16-11216
                                              I.
       During a hunting trip, Burdett was sitting in a friend’s pickup truck
when his Remington Model 700 rifle suddenly discharged, sending a bullet
through his left foot. The rifle was designed, manufactured, and assembled by
Remington Arms Company, LLC (Remington) 1 and Sporting Goods Properties,
Inc. (SGPI) 2 in Ilion, New York, where Burdett argues the conduct causing the
injury occurred. Burdett purchased the rifle in approximately 1998 from a
reseller in Georgia. Burdett is a resident of both Texas and Georgia.
       Burdett filed suit on December 22, 2015, in the Dallas division of the
Northern District of Texas. He alleged five products liability claims, one of
which fell under a Georgia statute, and one claim under the Texas Deceptive
Trade Practices-Consumer Protection Act. Remington and SGPI filed a motion
for summary judgment. Therein, they argued Burdett’s claims were time-
barred by the Texas statute of repose, which provides that “a claimant must
commence a products liability action against a manufacturer or seller of a
product before the end of 15 years after the date of the sale of the product by
the defendant.” TEX. CIV. PRAC. & REM. CODE § 16.012(b). The statute of
repose begins running when the product is first sold by the manufacturer. The
parties have been unable to provide the date the rifle was first sold, but Burdett
acknowledges that he purchased the rifle no later than 1998.


       1 For purposes of diversity jurisdiction, “the citizenship of a LLC is determined by the
citizenship of all of its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079–80
(5th Cir. 2008). In the district court, the allegations of citizenship did not provide the
citizenship of Remington’s members. In response to an inquiry by this court, the parties
provided a joint letter establishing that, based on the citizenship of each of Remington’s
members, Remington is a citizen of Delaware and North Carolina. Pursuant to 28 U.S.C. §
1653, we elect to treat this letter, agreed upon by all parties and further confirmed at oral
argument, as an amendment to the pleadings of citizenship. We conclude, therefore, that
jurisdiction is proper in the federal courts.
       2At some point, Remington Arms Company, LLC changed its name to Sporting Goods
Properties, Inc.
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                                 No. 16-11216
      Burdett countered that New York, rather than Texas, law applies and
thus his claims were not time barred. Unlike Texas, New York does not have
a statute of repose. See Fargas v. Cincinnati Mach., LLC, 986 F. Supp. 2d 420,
423 (S.D.N.Y. 2013). Burdett took issue with § 71.031 of the Texas Civil
Practice and Remedies Code, arguing that it does not apply to actions filed in
federal court and is not a choice of law provision. Section 71.031 provides:
      (a) An action for damages for the death or personal injury of a
      citizen of this state, of the United States, or of a foreign country
      may be enforced in the courts of this state, although the wrongful
      act, neglect, or default causing the death or injury takes place in a
      foreign state or country, if:

            (1) a law of the foreign state or country or of this state gives
            a right to maintain an action for damages for the death or
            injury;

            (2) the action is begun in this state within the time provided
            by the laws of this state for beginning the action;

            (3) for a resident of a foreign state or country, the action is
            begun in this state within the time provided by the laws of
            the foreign state or country in which the wrongful act,
            neglect, or default took place; and

            (4) in the case of a citizen of a foreign country, the country
            has equal treaty rights with the United States on behalf of
            its citizens.

TEX. CIV. PRAC. & REM. CODE § 71.031(a)(1)–(4). The district court disagreed
with Burdett and held that § 71.031 is a codified choice of law provision
warranting application of Texas law and Texas’s 15-year statute of repose. The
court computed the 15-year deadline by using the date of rifle’s sale in 1998.
Given that Burdett commenced the instant suit more than 15 years from the
date he purchased the rifle in 1998, the court granted Remington and SGPI’s
motion for summary judgment. Burdett appealed.


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                                    No. 16-11216
                                         II.
         A district court’s decision on choice of law questions and motions for
summary judgment is reviewed de novo. Railroad Mgmt. Co. v. CFS Louisiana
Midstream Co., 428 F.3d 214, 221–22 (5th Cir. 2005). A federal court sitting
in diversity jurisdiction must apply the choice of law rules of the forum state
when a conflict of law exists. Ingalls Shipbuilding v. Federal Ins. Co., 410 F.3d
214, 230 (5th Cir. 2005). The parties do not dispute that Texas choice of law
rules apply in this case.
                                         III.
         The issue on appeal is whether the district court properly applied Texas’s
choice of law rules, which is dependent upon whether § 71.031(a) of the Texas
Civil Practice and Remedies Code is a choice of law provision and whether the
statute applies in federal court. An analysis of this court’s prior decision in
Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506 (5th Cir. 2007) resolves this
issue.
         Hyde involved a products liability action that was removed to federal
court based on diversity jurisdiction. In determining what state’s laws applied,
we stated that “[w]hile as a general proposition, Texas applies the ‘most
significant relationship’ test in sections 6 and 145 of the Restatement (Second)
of Conflict of Laws in determining what law applies in tort cases, the Texas
Legislature has enacted legislation to govern choice of law in some respects.
Section 71.03 of the Texas Civil Practice and Remedies Code is such a
codification.” Id. at 511.
         In so holding, the Hyde court considered the Supreme Court of Texas’s
characterization of § 71.031 in Owens Corning v. Carter, 997 S.W.2d 560 (Tex.
1999). Cf. Barfield v. Madison Cty., 212 F.3d 269, 271–72 (5th Cir. 2000)
(“When adjudicating claims for which state law provides the rules of decision,
we are bound to apply the law as interpreted by the state’s highest court.”).
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                                       No. 16-11216
There, the Texas court stated that the borrowing statute provisions 3 of § 71.031
are “essentially a codified choice-of-law rule governing the timeliness of
actions.” Owens Corning, 997 S.W.2d at 573. Accordingly, both this court and
the Supreme Court of Texas have concluded that § 71.031 is a codified choice
of law provision. Absent en banc reconsideration of this issue, we are bound
by our precedent in Hyde. See United States v. Stone, 306 F.3d 241, 243 (5th
Cir. 2002).
       Burdett next asserts that § 71.031 does not apply in federal court. He
argues the plain language of the statute makes clear it was only meant to apply
to state courts. In Hyde, we applied § 71.031 to a proceeding in federal court
and held that “under Texas law, a resident plaintiff . . . must establish under
subsection (a)(2) that his action was instituted in Texas ‘within the time
provided by the laws of [Texas] for beginning the action,’ and that includes
Texas statutes of repose.” 511 F.3d at 511–13. Because, we are bound by our
previous decision, Burdett’s assertions are unavailing.
                                              IV.
       Having established that § 71.031 is a choice of law provision that applies
in both state and federal courts, we turn now to the district court’s application
of the statute to Burdett’s case. An analysis of § 71.031 demonstrates the
result is the same regardless of whether Burdett is considered a resident of
Texas or Georgia. If the plaintiff is a resident of a foreign state, he may bring
suit in Texas if he satisfies the first three requirements under § 71.031(a); a
Texas resident need only satisfy the first two. TEX. CIV. PRAC. & REM. CODE §
71.031(a)(1)–(3).


       3  Section 71.031(a)(3) is known as the borrowing statute. “[S]ection 71.031(a)(3)
‘borrows’ another state’s statute of limitations such that a foreign plaintiff whose cause of
action for personal injury or wrongful death arose in a foreign state with a shorter limitations
period than Texas’s must file within the limitations period prescribed by that state’s law.”
Owens Corning v. Carter, 997 S.W.2d 560, 566 (Tex. 1999).
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                                  No. 16-11216
      If Burdett was considered a resident of Georgia, the only difference
would be that both Texas and New York law would apply. As New York does
not have a statute of repose, the only dispute between the parties is whether
the action was timely filed pursuant to §71.031(a)(2), a requirement that must
be satisfied regardless of whether Burdett is considered a resident of Texas or
Georgia.
      Texas’s statute of repose provides that a products liability action must
be initiated “before the end of 15 years after the date of the sale of the product
by the defendant.” TEX. CIV. PRAC. & REM. CODE § 16.012(b). The statute of
repose begins running when the product is first sold by the manufacturer.
      As previously mentioned, the parties are unaware of the date Remington
first sold the rifle. However, given that Burdett purchased it from a retailer in
Georgia in approximately 1998, the date of the rifle’s first sale was
undoubtedly prior to 1998. Even assuming the rifle was first purchased in
1998, Burdett had until 2013 to initiate his products liability suit. Yet, Burdett
did not commence this action until 2015, which was more than fifteen years
from the date of the sale of the rifle. Accordingly, Burdett’s claims were time
barred, and by his own admission, there is no genuine issue of material fact.
Thus, we affirm the district court’s entry of summary judgment.
      AFFIRMED.




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