United States District Court, S.D. Illinois
August 5, 2005.
DAISY MAE HALL, GUARDIAN OF THE PERSON, JIMMY HALL, Plaintiff,
CARLISLE COMPANIES, INC. d/b/a CARLISLE TIRE & WHEEL COMPANY and WAL-MART COMPANY, INC., Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
On February 3, 2005, Daisy Mae Hall, Guardian of the Person,
Jimmy Hall, initiated this action in the Circuit Court of the
Second Judicial Circuit, Gallatin County, Illinois, against
Carlisle Companies, Inc. d/b/a Carlisle Tire & Wheel Company
("Carlisle") and Wal-Mart Stores, Inc. ("Wal-Mart") (incorrectly
named in the Complaint as Wal-Mart Company, Inc.). (Doc. 2.)
Plaintiff alleges that Jimmy Hall sustained personal injuries to
his head, neck, shoulders and limbs as a result of a three
wheeler accident allegedly caused by a defective tire designed
and manufactured by Carlisle. (Doc. 2.) Count I of the Complaint
is a product liability claim against Carlisle and Count II is a
product liability claim against Wal-Mart. (Doc. 2.)
On May 12, 2005, Defendants removed the action based on the
Court's diversity jurisdiction, 28 U.S.C. § 1332. (Doc. 1.) On
June 13, 2005, Wal-Mart filed a motion to dismiss pursuant to
735 ILCS 5/2-621 arguing that Plaintiff's claim against it
should be dismissed because Wal-Mart is not the manufacturer of
the allegedly defective product and Plaintiff has already brought
suit against the tire manufacturer, Carlisle. (Doc. 11.) Wal-Mart also tells the Court it "will file an affidavit attesting to the
correct name of the manufacturer of the allegedly defective
product." (Doc. 11.) Plaintiff opposes Wal-Mart's motion because
"as of this date, the Defendant, Wal-Mart Company, Inc. has not
filed an Affidavit certifying that Defendant, Carlisle Companies,
Inc., d/b/a Carlisle Tire & Wheel Company is the correct
manufacturer of the alleged defective product." (Doc. 12.)
Section 2-621 provides in part:
In any product liability action based on any theory
or doctrine commenced or maintained against a
defendant or defendants other than the manufacturer,
that party shall upon answering or otherwise pleading
file an affidavit certifying the correct identity of
the manufacturer of the product allegedly causing
injury, death or damage. . . . Once the plaintiff has
filed a complaint against the manufacturer or
manufacturers, and the manufacturer or manufacturers
have or are required to have answered or otherwise
pleaded, the court shall order the dismissal of a
product liability action based on any theory or
doctrine against the certifying defendant or
defendants, provided the certifying defendant or
defendants are not within the categories set forth in
subsection (c) of this Section.
735 ILCS 5/2-621(a), (c). Here, although Wal-Mart has not filed
an affidavit as promised, Plaintiff has already obtained service
on the tire manufacturer, Carlisle, and Carlisle has answered.
Accordingly, the Court GRANTS the Motion of Defendant
Wal-Mart Stores, Inc. To Dismiss Plaintiff's Complaint (Doc. 11)
and DISMISSES Defendant Wal-Mart Stores, Inc. (incorrectly
named in the Complaint as Wal-Mart Company, Inc.) from the case.
IT IS SO ORDERED.
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