September 23, 2020

Litigators in the Lone Star State are the first to admit: justice often doesn’t come swiftly in Texas courts.  And parties to lawsuits can attest that when a case drags on through the court system – even where there are strong defenses – it will be a costly endeavor for the client.  RLF bucked this trend for its handgun manufacturer client when it was successful in having two unrelated product liability litigations dismissed as a result of aggressive early motion practice.  In one case, RLF was successful in convincing a Texas judge that the case had no merit and in the other one, RLF convinced the plaintiff to voluntarily dismiss the case on the eve of oral argument of the motion to dismiss  — along with the threat of potential attorney’s fees and costs being awarded to the manufacturer.  And what makes these dismissals unique is that they were achieved at the motion to dismiss (aka Texas Rule 91a) stage of the cases – shortly after the cases were initially filed. 
Texas lawyers know the drill – don’t waste your time filing a motion to dismiss – it will almost certainly be denied and could cost your client not only the attorney’s fees and costs incurred to prepare and argue the motion, but perhaps even paying the plaintiff’s fees and costs to oppose the motion if it is denied.  The Texas courts have discretion (and often use it) to sanction the losing party by making them pay the attorney’s fees and costs of the winning party.  As such, defendants are most often unwilling to take that aggressive approach and face the risks associated with filing a motion to dismiss.  That generally means defendants in a lawsuit get caught up in protracted discovery over a significant amount of time before they can present their defenses which inevitably leads to increased costs for the manufacturer or a compromised settlement.
In these two cases, RLF (on behalf of the manufacturer) took the aggressive approach and filed Texas Rule 91a motions to dismiss and the risk payed off.  The first case originally alleged product defect concerning, among other things, the lack of a magazine disconnect (hardly a defect for anyone who uses a handgun for self-defense purposes) which led to the shooting of the plaintiff in the head while three adults were handling the loaded pistol in an automobile.  The second one concerned a murder / suicide with the manufacturer’s pistol and alleged claims of negligent sale of the pistol.  RLF presented both courts with extensive briefing premised on the Protection of Lawful Commerce in Arms Act – which, barring any exception, provides immunity to FFLs when their products are criminally misused.  After exhaustive briefing of the legal issues, including fighting off numerous challenges that the claims fell within various exceptions to the statute – both cases were dismissed and the manufacturer received some swift justice in the Texas courtroom.    
If you have any questions concerning these cases or any firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.