                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 29 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RICHARD BARBER and BARBARA                       No. 13-35336
BARBER,
                                                 D.C. No. 2:12-cv-00043-DLC
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

REMINGTON ARMS COMPANY, INC.;
et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Montana
               Dana L. Christensen, Chief District Judge, Presiding

                        Argued and Submitted May 4, 2015
                               Seattle, Washington

Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Richard and Barbara Barber appeal from the district court’s dismissal of

their defamation claim against Remington. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court’s judgment.

      On October 23, 2000, the Barbers’ son was killed when a Remington Model

700 rifle accidentally discharged. In 2002, the Barbers and Remington entered into

a settlement agreement in which the Barbers received a payment in exchange for

releasing Remington “from any and all past, present, or future claims . . . whether

based on a tort, contract, or other theory of recovery, which the Plaintiffs now

have, or which may hereafter accrue or otherwise be acquired, on account of, or

may in any way grow out of the Accident . . . .” In 2010, the Barbers appeared in a

CNBC documentary concerning the theory that the 2000 accident was the result of

a design defect. Remington responded with a statement that the Model 700 is safe

when used properly, that the Barber rifle was rusted and had been modified, and

“in testing by experts for both Remington and the Barber family, the Barber rifle

would fire only by pulling the trigger while the safety was in the fire position.”

The Barbers brought this suit, alleging, among other things, that they were

defamed by Remington’s statements.

      We agree with the district court that the 2002 release of claims barred the

Barbers’ defamation claim. Remington’s allegedly defamatory statements are

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substantively identical to statements it made in response to the Barbers’ appearance

in a 2001 CBS Evening News report before the Barbers filed their first lawsuit

against Remington. That the Barbers attempt to continue the litigation of released

claims is shown by their statement that they seek a judicial determination of “who

is telling the truth, and who is not” about Remington’s product. Because the

statements at issue do not differ from statements Remington made prior to the 2002

release of claims, we need not consider whether, under Montana law, a

post-accident settlement agreement may release a party from liability for distinct,

subsequent tortious conduct.

      AFFIRMED.




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