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WORTHEM v. GILLETTE CO.

October 2, 1991

ESTELLE J. WORTHEM, Plaintiff,
v.
THE GILLETTE COMPANY, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is The Gillette Company's ("Gillette") motion to dismiss plaintiff's punitive damages count of her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court denies the motion.

 On August 16, 1989, plaintiff, an Illinois resident, bought a "Toni, Epic Waves, Adaptable Perm" which among other things contained a hair curling solution. This product is manufactured by Gillette, a Delaware corporation. After applying the solution to her hair, some of the solution dripped into her eyes. She immediately rinsed her eyes with cool water several times, in accord with package directions. Unfortunately, the rinsing failed and plaintiff suffered injury to her right eye. She sued Gillette alleging diversity conferred subject-matter jurisdiction on this court and that Illinois law applied. The complaint claimed causes of action based on strict products liability, negligence, and a third count captioned "COUNT FOR PUNITIVE DAMAGES." In that count plaintiff pleaded that Gillette was willful and wanton in its conduct. The final paragraph asked for punitive damages. It is with this count that Gillette takes issue.

 DISCUSSION

 On a motion to dismiss, all well-pleaded factual allegations are taken as true. Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991) (1991 U.S. App. LEXIS 21473); Harris Trust & Savings Bank v. E-II Holdings, Inc., 926 F.2d 636, 641 n. 17 (7th Cir. 1991). All reasonable inferences to be drawn from those allegations are also accepted as true. Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1558 (7th Cir. 1991). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Prince v. Rescorp. Realty, 940 F.2d 1104, 1106 (7th Cir. 1991); Kohl v. Murphy, 767 F. Supp. 895, 898 (N.D. Ill. 1991).

 Gillette's motion seeks dismissal on two bases. First, defendant claims that Section 2-604.1 of the Illinois Code of Civil Procedure mandates dismissal of this claim. Ill. Rev. Stat. ch. 110, para. 2-604.1 (1991). Second, Gillette maintains that plaintiff's allegations fail to state a cognizable claim for punitive damages and should therefore be dismissed. Plaintiff has chosen to stand on her pleadings.

 A. Construction of Ill. Rev. Stat. ch. 110, para. 2-604.1 (1991).

 When sitting in diversity, a federal court merely acts as an agent of the state in which it sits, applying the law of that state as a whole. United Rope Distributors, Inc. v. Seatriumph Marine Corp., 930 F.2d 532, 535 (7th Cir. 1991). Thus, state law controls all issues of substantive law, ( Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 637 (7th Cir. 1991)) and the Federal Rules of Civil Procedure control all issues of a procedural nature. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Therefore, this court is left to determine whether Ill. Rev. Stat. ch. 110, para. 2-604.1 (1991) is substantive or procedural. As the ensuing discussion reveals, this court concludes the section is procedural.

 The relevant text of 2-604.1 states:

 
 
Pleading of punitive damages. In all actions on account of bodily injury or physical damage to property, based on negligence, or product liability based on strict tort liability, where punitive damages are permitted no complaint shall be filed containing a prayer for relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. The court shall allow the motion to amend the complaint if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive ...

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