The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff filed a ten-count amended complaint against defendants,
Invacare Corporation and National Seating & Mobility, Inc. (National
Seating). National Seating, relying on section 2-621 of the Illinois Code
of Civil Procedure, 735 ILCS 5/2-621 (West 2002), seeks dismissal of
Counts VI-VII, contending that it has certified that Invacare Corporation
was the manufacturer of the allegedly defective product and that
plaintiff has failed to allege any of the exceptions under section
2-621(c). While its motion to dismiss was directed at Count IX
(negligence) as well, defendant has conceded in its reply brief that
section 2-621 does not apply to negligence claims. This is a proper
concession as the former version of section 2-621, which applies due to
the amended version having been declared unconstitutional by the Illinois
Supreme Court (see Aron v. Brown & Williamson Tobacco Corp., 2003 WL
21305531, *2 (N.D. Ill. Feb. 10, 2003)), expressly limits section 2-621
to "any product liability action based in whole or in part on the
doctrine of strict liability." 735 ILCS 5/2-621(a).
In response to the motion to dismiss, plaintiff, relying on the
exception in section 2-621(c) that allows a strict liability claim
against a distributor or seller of an allegedly defective product if the
defendant "had actual knowledge of the defect in the product," contends
it has alleged such knowledge in its amended complaint and points to
record evidence outside the complaint that it asserts shows that National
Seating had actual knowledge of the defect. National Seating, in reply,
contends there are no allegations of actual knowledge and further
identifies other evidence that it claims demonstrates a lack of such
Although procedural in nature, section 2-621 has been applied as a
substantive provision in diversity cases such as this. See Indeck Power
Equipment Co. v. Jefferson Smurfit Corp., 881 F. Supp. 338, 341 (N.D.
Ill. 1995). A motion to dismiss based on section 2-621 has been treated
as one brought under Fed.R.Civ.P. 12(b). Indeck Power Equipment Co., 881
F. Supp. at 341. As such, it tests the sufficiency of the complaint
only. Indeck Power Equipment Co., 881 F. Supp. at 342.
Here, a liberal reading of the amended complaint fails to reveal any
claim that National Seating has actual knowledge of the alleged defect.
Thus, Counts VI-VIII that are based on strict products liability must be
dismissed. The dismissal of Counts VI-VIII is without prejudice to
plaintiff re-pleading and including the required allegations of actual
knowledge. Plaintiff is cautioned, however, to carefully consider whether
such an allegation is proper in light of the representations of evidence
regarding that issue included with plaintiff's memorandum in response to
the motion to dismiss.
For the foregoing reasons, National Seatings's motion to dismiss is
denied as to Count IX and granted as to Counts VI-VIII without prejudice
to plaintiff re-pleading and including the required allegations of actual
knowledge within 14 days of the date of this order.
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