REVISED May 3, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11216

EDWARD BURDETT, 

 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 

 

* District Judge of the Western District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2017

Lyle W. Cayce

Clerk
No. 16-11216

2

judgment in favor of Remington Arms Company, LLC and Sporting Goods 

Properties, Inc. For the reasons explained below, we AFFIRM.

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 timebarred 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 

 

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.

2 At some point, Remington Arms Company, Inc., changed its name to Sporting Goods 

Properties, Inc.
No. 16-11216

3

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. 

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 
No. 16-11216

4

date he purchased the rifle in 1998, the court granted Remington and SGPI’s 

motion for summary judgment. Burdett appealed.

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) 
No. 16-11216

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(“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.”). 

There, the Texas court stated that the borrowing statute provisions3 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 

 

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).
No. 16-11216

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Texas resident need only satisfy the first two. TEX. CIV. PRAC. & REM. CODE §

71.031(a)(1)–(3).

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.