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September 21, 2004.

CANADIAN PACIFIC RAILWAY COMPANY, a Canadian Corporation, Plaintiff,
WILLIAMS-HAYWARD PROTECTIVE COATINGS, INC., an Illinois Corporation, Defendant.

The opinion of the court was delivered by: AMY J. ST. EVE, District Judge


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 is ...

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