The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Praxair
Distribution, Inc.'s ("PDI") motion to dismiss. For the reasons
stated below, we deny the motion to dismiss in its entirety.
Plaintiff Industrial Steel Service Center, Inc. ("ISSC") is
engaged in the business of fabricating and supplying steel
materials. ISSC alleges that in November of 1999, representatives
of ISSC met with representatives of PDI and discussed the purchase of a burn table by ISSC from PDI. According to ISSC, on
December 16, 1999, PDI, then known as Gas Tech, sent a proposal
to ISSC for the purchase of the table. ISSC alleges that its
representatives visited the offices of MG Systems & Welding, Inc.
("MG") to review the project and that representatives of MG and
PDI indicated that the table would meet the requirements
specified by ISSC. Specifically, ISSC claims that it asked during
the visit whether a dual-drive machine was necessary to meet
ISSC's needs and representatives from MG and PDI indicated that a
single-drive machine would suffice.
ISSC alleges that on January 23, 2000, PDI sent a proposal to
ISSC indicating that the purchase price for the table would be
$88,891.00 and that on January 26, 2000, ISSC executed a purchase
order and tendered PDI a check in the amount of $31,112.00
pursuant to the terms of the proposal as a down payment for the
table. According to ISSC, on March 31, 2000, it tendered a check
to PDI in the amount of approximately $48,000 and that in March
and April of 2000, the table was delivered to ISSC. ISSC claims
that it then assembled and installed the table with instruction
from MG and PDI. ISSC claims that on June 19, 2000, it tendered a
final payment to PDI for the table in the amount of $8,889.00.
ISSC claims that on June 23, 2000, PDI sent ISSC a proposal for
a second burning table, indicating that the purchase price would
be $62,535.00. ISSC contends that it accepted the proposal and
that on June 27, 2000, it executed a purchase order and tendered
PDI a check in the amount of $22,832.00, and on August 22, 2000, ISSC sent PDI another check in the amount of
$35,879.00. According to ISSC, the second burning table was
delivered to ISSC. ISSC claims that on October 31, 2000, ISSC
tendered a check to PDI in the amount of $6,535 as final payment
for the second burning table.
ISSC claims that beginning in July of 2000, the torch lifters
on the first table purchased from PSI began malfunctioning and
that MG and PDI attempted to fix the table. ISSC alleges that the
other table also began to malfunction and that new problems arose
on both of the tables purchased from PDI. ISSC claims that MG and
PDI made repeated visits to ISSC to try and fix the tables.
According to ISSC, due to the malfunctioning tables, ISSC began
finding defects in its products and was forced to hand cut and
grind poorly cut steel plates. ISSC also claims that it had to
replace other steel plates and materials that it had already
produced. ISSC claims that MG sent a representative to review the
machinery in June of 2001 and that in January 2002, MG indicated
that it could not fix the tables.
ISSC filed the instant action in state court and the case was
removed to federal court. The complaint includes a breach of
implied warranty of merchantability claim against PDI (Count I),
a breach of implied warranty, fitness for a particular purpose
claim against PDI (Count II), a breach of implied warranty of
merchantability claim against MG (Count III), and a breach of
implied warranty, fitness for a particular purpose claim against
MG (Count II). LEGAL STANDARD
In ruling on a motion to dismiss, the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Thompson v. Illinois Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins
v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations of a complaint should not be dismissed for a failure
to state a claim "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." Conley v. Gibson, 355 U.S. 41,
45-46 (1957). Nonetheless, in order to withstand a motion to
dismiss, a complaint must allege the "operative facts" upon which
each claim is based. Kyle v. Morton High School, 144 F.3d 448,
454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168
(7th Cir. 1992). The plaintiff need not allege all of the facts
involved in the claim and can plead conclusions. Higgs v.
Carter, 286 F.3d 437, 439 (7th Cir. 2002); Kyle,
144 F.3d at 455. However, any conclusions pled must "provide the defendant
with at least minimal notice of the claim," Id., and the
plaintiff cannot satisfy federal pleading requirements merely "by
attaching bare legal conclusions to narrated facts which fail to
outline the bases of [his] claim." Perkins, 939 F.2d at 466-67. DISCUSSION
I. Implied Warranty of Merchantability Claim
PDI seeks a dismissal of the implied warranty of
merchantability claim against it because ISSC failed to allege
the ordinary purposes of the machines and failed to allege that
the tables were not merchantable at the time of sale. The implied
warranty is codified in 810 ILCS 5/2-314 which states in part as
§ 2-314. Implied Warranty; Merchantability; Usage of
Trade. (1) Unless excluded or modified (Section
2-316), a warranty that the goods shall be
merchantable is implied in a contract for their sale
if the seller is a merchant with respect to goods of
that kind. Under this Section the serving for value
of food or drink to be consumed either on the
premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the
contract description; and
(b) in the case of fungible goods, are of fair
average quality within the description; and
(c) are fit for the ordinary purposes for which such
goods are used; and
(d) run, within the variations permitted by the
agreement, of even kind, quality and quantity within
each unit and among all units involved; and
(e) are adequately contained, packaged, and labeled
as the agreement may require; and
(f) conform to the promises or affirmations of fact
made on the container or label if any.
(3) Unless excluded or modified (Section 2-316) other
implied warranties may arise from course of dealing
or usage of trade. . . .
810 ILCS 5/2-314. A. Ordinary Purpose of Tables
PDI argues that pursuant to 810 ILCS 5/2-314(2)(c), ISSC is
required to "allege the ordinary use for the goods" in questions.
(Mot. 4). Although, as indicated above, the statute requires a
plaintiff to show that the goods "are fit for the ordinary
purposes for which such goods are used," the requirement is not a
pleading requirement. The notice pleading standard applies in the
instant action rather than any state pleading standards. See M.
Block & Sons, Inc. v. International Business Machines Corp.,
2004 WL 1557631, at *3 (N.D. Ill. 2004) (applying notice pleading
standard to state law claims); Viero v. Bufano,
901 F.Supp. 1387, 1396 (N.D. Ill. 1995) (stating that "Illinois pleading
rules do not apply in this federal court although Illinois
substantive law provides the rules of decision. . . .");
Resolution Trust Corp. v. KPMG Peat Marwick, 844 F.Supp. 431,
433 (N.D. Ill. 1994) (stating that federal pleading standard
applies to state law claims).
Also, PDI argues that the ordinary use is a pleading
"requirement," (Reply 2), and thus argues that ISSC failed to
allege one of the elements for a claim under
810 ILCS 5/2-314(2)(c), however, under the notice pleading standard a
plaintiff is not required to plead elements. The Seventh Circuit
has made it clear that there "is no requirement in federal suits
of pleading the facts or the elements of a claim, with the
exceptions . . . listed in Rule 9. . . ." Walker v. Thompson,
288 F.3d 1005, 1007 (7th Cir. 2002). See also Head v.
Chicago School Reform Bd. of Trustees, 225 F.3d 794, 801
(7th Cir. 2000) (stating that the plaintiff was not required
under the notice pleading standard to plead with particularity facts to support
each element of his claim); Sanjuan v. American Bd. of
Psychiatry and Neurology, Inc, 40 F.3d 247, 251 (7th Cir.
1994) (stating that "[a]t this stage the plaintiff receives the
benefit of imagination, so long as the hypotheses are consistent
with the complaint" and that "[m]atching facts against legal
elements comes later."). PDI attempts to distort the notice
pleading standard by quoting Seventh Circuit case law out of its
proper context and by relying on decisions made in 1977 and 1988.
Also, regardless of the pleading requirements, ISSC has alleged
the ordinary use of the tables. ISSC alleged that the tables were
used to cut "straight, precise, accurate steel plates." (Compl.
Par. 38). PDI refers to ISSC allegations as "conclusory." (Reply
2). However, a plaintiff is not required to plead all the facts
for his claim. Higgs, 286 F.3d at 439; Kyle, 144 F.3d at 455.
PDI also argues that ISSC merely alleges that the tables were
ordinarily used to cut steel and ISSC does not deny that the
machines cut steel. This argument is mere semantics. ISSC alleges
that the tables were used to cut "straight, precise and accurate"
steel plates and ISSC alleges that the machines could not be put
to such a use. Perhaps the tables could have been used to make
rough, imprecise cuts in steel, but ISSC did not use them for
that purpose. ISSC cites to Industrial Hard Chrome Ltd. v.
Hetran, Inc, 64 F.Supp.2d 741, 748 (N.D. Ill. 1999). The case is
not controlling authority and in that case the plaintiff "failed