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Kehrer Brothers Construction, Inc. v. Custom Body Co.

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


April 18, 2006

KEHRER BROTHERS CONSTRUCTION, INC., PLAINTIFF,
v.
CUSTOM BODY COMPANY, INC., CUSTOM TRUCK & EQUIPMENT, LLC, CUSTOM BODY, LLC, CUSTOM TRUCK SALES, LLC, AND TEREX CORPORATION, D/B/A TEREX CRANES, D/B/A TEREX CRANES, INC., DEFENDANTS.

The opinion of the court was delivered by: Herndon, District Judge:

MEMORANDUM & ORDER

The Court now considers two pending motions filed by Plaintiff and defendant Terex Corporation, d/b/a Terex Cranes, d/b/a Terex Cranes, Inc. ("Terex") in this case. Terex has filed its Motion for Judgment on the Pleadings/Summary Judgment pursuant to FEDERAL RULES OF CIVIL PROCEDURE 12 (c) and 56(c) (Doc. 33). Terex argues that Count IV (Negligence) and Count V (Strict Liability) of Plaintiff's First Amended Complaint (Doc. 22), should be dismissed against Terex with prejudice, as Plaintiff claims only economic damages and under the Moorman doctrine, economic loss (such as the repair costs and loss of use damages Plaintiff seeks) cannot be recoverable under tort theories of negligence and/or strict liability. Moorman Manufacturing Co. v. Nat'l Tank Co., 91 Ill.2d 69, 435 N.E.2d 443, 61 Ill. Dec. 746 (1982).

Plaintiff has filed a partial Motion to Dismiss without prejudice (Doc. 39) Count IV (Negligence) and Count V (Strict Liability) of its First Amended Complaint (Doc. 22), as it pertains only to Terex.*fn1 Plaintiff's Motion to Dismiss actually appears to serve as its Response to Terex's Motion, but Plaintiff fails to specifically indicate this, Further, although not specifically stated, Plaintiff's Motion is made pursuant to FEDERAL RULE OF CIVIL PROCEDURE 41. However, because Terex has already filed an answer and summary judgment motion, under Rule 41(a) Plaintiff cannot simply dismiss as claim as of right.*fn2 Plaintiff must either obtain a stipulation entered into by all parties in the action, pursuant to Rule 41(a)(1)(ii) or request a dismissal by order of the Court pursuant to Rule 41(a)(2). Therefore, the Court cannot merely acknowledge Plaintiff's "Notice" of Dismissal (Motion to Dismiss), as it was not stipulated or consented to by any of the other parties to the suit. Yet, similarly, Terex did not oppose Plaintiff's "Notice" of Dismissal.

The Court observes that granting either party's Motion will still leave Terex in the suit, as Count III of Plaintiff's Amended Complaint alleges Breach of Warranty against Terex. Strangely, neither Plaintiff nor Terex chose to respond to the other's respective motion. It is now left to the Court's discretion to determine which motion, if any, should be granted. Because granting either results in the same Counts being dismissed -- the only difference being whether the dismissal is with or without prejudice -- the Court finds it more appropriate to grant Plaintiff's motion, as the substantive issues regarding dismissal were not adequately briefed by both parties.Accordingly, the Court GRANTS Plaintiff's Motion to Dismiss (Doc. 39). Counts IV and V of Plaintiff's First Amended Complaint (Doc. 22), against defendant Terex only, are hereby DISMISSED WITHOUT PREJUDICE.As such, the Court finds defendant Terex's Motion for Judgment on the Pleadings/Summary Judgment (Doc. 33) to be MOOT.

IT IS SO ORDERED.

David RHerndon United States District Judge


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