The opinion of the court was delivered by: LEVIN
MEMORANDUM OPINION AND ORDER
Plaintiff has brought this action against Defendant for breach of contract and breach of implied warranty. Pending is Defendant's motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the breach of implied warranty claim. For the reasons set forth below, this motion is granted.
Plaintiff NIM Plastics Corporation ("NIM") is in the business of extruding polycarbonate resin into sheets and film which it then markets and sells to its customers. (Cmplt. P 1.) Mold-Tech, a division of the Defendant corporation, is in the business of applying textured and chemically "etched" finishes on rolls to be used by customers to produce or manufacture sheets of film. (Id. PP 4,9.)
In or about 1992, NIM had one of its existing rolls refinished with a textured matte finish (hereinafter referred to as the "Roll"). (Cmplt. P 9.) In or about May of 1997, NIM and Mold-Tech entered into an oral contract. Under the agreement, Mold-Tech agreed (a) to "refinish" NIM's existing Roll with a matte finish replicating the matte finish then on the Roll, (b) to chemically "etch" the matte finish onto the existing Roll, and (c) to complete the work on the Roll and return it to NIM in approximately three weeks. (Id.. P 10.) Mold-Tech had the Roll sandblasted and resurfaced and then returned it to NIM on or about June 9, 1997. (Id. P 13.) The surface applied to the Roll did not replicate the matte finish which was on the Roll when the Roll was received by Mold-Tech. (Id. P 14.)
NIM rejected the resurfaced Roll as non-conforming and seasonably notified Mold-Tech of its rejection of the Roll. (Cmplt. P 15.) NIM returned the Roll to Mold-Tech twice for the purpose of Mold-Tech repairing and appropriately equating the finish on the Roll. (Id. PP 17,18.) Mold-Tech and its agent, Keystone Rolls, Inc., however, were unable to repair the Roll so that it complied with Mold-Tech's agreement with NIM. (Id.)
Since Mold-Tech failed to repair or replace the Roll so that it complied with the contract, NIM shipped the Roll to New Castle, a competitor of Mold-Tech, which resurfaced the Roll with a matte finish replicating the original matte finish on NIM's Roll. (Cmplt. PP 19,22.)
On November 3, 1997, NIM filed a two-count complaint against Standex. NIM sues Standex for breach of contract (Count I) and breach of implied warranty (Count II). Standex now moves to dismiss the breach of implied warranty count for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
STANDARDS FOR MOTION TO DISMISS
On a motion to dismiss, the court takes all of the well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff. See, e.g., Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d 397, 401 (7th Cir. 1996). A complaint will not be dismissed on a motion to dismiss unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him or her to relief. Id.
As stated, in Count II of Plaintiff's Complaint, NIM makes a claim for breach of implied warranty as to merchantability and fitness for a particular purpose. (See Cmplt. P 29.) The parties concur that Plaintiff's implied warranty claim here is a creation of the Uniform Commercial Code (the "U.C.C.").
(Def. Mem. at 1-2; Pl. Resp. at 2-3.) See also American Labelmark Co. v. Akiyama Corp. of Am., 1993 U.S. Dist. LEXIS 15683, No. 93 C 3208, 1993 WL 460838, at *1-2 (N.D. Ill. Nov. 5, 1993). The parties further agree that the U.C.C. applies only to "transactions in goods." 810 ILCS 5/2-102.
The issue here, then, is discrete: whether NIM states a cause of action that Mold-Tech provided NIM with a "good" within the meaning of the U.C.C. (See Pl. Resp. at 2-3; Def. Reply at 1-2.)
The Illinois U.C.C. defines goods as "all things . . . which are movable at the time of identification to the contract for sale[.]" 810 ILCS 5/2-105(1). "The definition of goods is based on the concept of moveability[.] It is not intended to deal with things which are not fairly identifiable as moveables before the contract is performed." 810 ILCS 5/2-105 cmt. 1.
Additionally, the ...