The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Counter-Defendant Williams-Hayward filed a counterclaim against
Involuntary Plaintiff National Steel Car, Limited ("NSC")
alleging claims of contribution and indemnity. NSC has moved to
dismiss these claims for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, NSC's motion to dismiss is granted.
1. Rule 12(b)(6) Standards
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency
of a complaint, not the merits of a claim. See Triad Assocs.,
Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir.
1989). When evaluating a motion to dismiss, the Court views the
complaint "in the light most favorable to the plaintiff, taking
as true all well-pleaded factual allegations and making all
possible inferences from those allegations in his or her favor."
Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003).
Dismissal is appropriate only where it appears beyond doubt that
under no set of facts would the plaintiff's allegations entitle him to
relief. Hishon v. King & Spalding, 467 U.S. 69, 73,
104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
Much of the relevant background of this case has been described
by the Court in its prior opinion addressing Williams-Hayward's
motion to dismiss. See Canadian Pacific Ry. Co. v.
Williams-Hayward Protective Coatings, Inc., 2003 WL 1907943
(N.D. Ill. Apr. 17, 2003). In sum, Plaintiff Canadian Pacific
Railway Company ("CP Rail") is a Canadian corporation with its
principal place of business in Alberta, Canada. Defendant
Williams-Hayward is an Illinois corporation engaged in the
business of manufacturing paint. Involuntary Plaintiff NSC is a
Canadian rail car manufacturer who contracted with CP Rail to
provide railway cars for the transportation of paper.
During the manufacture of the railway cars for CP Rail,
problems arose concerning the quality of the paint provided by
Williams-Hayward and applied by NSC. Eventually, CP Rail stopped
accepting cars that had been treated with Williams-Hayward's
paint. CP Rail thereafter sued Williams-Hayward on the following
claims: breach of warranty, breach of implied warranty of
fitness, breach of implied warranty of merchantability,
fraud,*fn1 unjust enrichment and promissory estoppel. Upon
order of the court, CP Rail filed an amended complaint, naming
NSC as an "involuntary plaintiff" under Rule 19. (R. 27-1, Am.
Compl. at ¶ 2.) Williams-Hayward then filed counterclaims against
both CP Rail and NSC. (R. 42-1, Countercl. at p. 14-17; R. 95-1,
Supplement to Countercl. at 1-7.)
NSC moved to dismiss counts two and four of Williams-Hayward's
counterclaims. (R. 99-1, Counter-Def.'s Mot. To Dismiss at 1.)
Williams-Hayward subsequently moved to voluntary dismiss counts
four, five, six and seven of its counterclaims. (R. 112-1, Def's
Mot. To Dismiss.) The Court granted this motion and denied NSC's motion
to dismiss count four as moot. (R. 113-1, Min. Order.) NSC's
motion to dismiss count two of Williams-Hayward's counterclaims
remains for disposition.
In count two of its counterclaims, Williams-Hayward alleges
that in the event it is found liable to Plaintiff CP Rail, it is
entitled to contribution and indemnity from NSC for the amount of
the judgment against it. (R. 42-1, Countercl. at ¶ 18.) NSC moves
to dismiss count two for Williams-Hayward's failure to state any
claim upon which relief can be granted.
I. Claim For Contribution
Illinois law recognizes two actions for contribution, one
statutory and the other derived from common law. NSC moves to
dismiss the claim for contribution on the grounds that
Williams-Hayward is only potentially subject to liability in
contract and, therefore, has no right to contribution under the
Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/2 ("the
Contribution Act"). NSC further argues that Williams-Hayward has
no cause of action for equitable contribution because
Williams-Hayward has not alleged that it and NSC were acting as
insurers in this case. Although Williams-Hayward did not specify
in its pleadings which of these actions it is alleging, in its
response to NSC's motion to dismiss, Williams-Hayward asserts it