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Blasa v. Nooter Construction Co.

August 18, 2006

JIM BLASA, PLAINTIFF,
v.
NOOTER CONSTRUCTION COMPANY, NOOTER CORPORATION, CONOCOPHILLIPS COMPANY, WASHINGTON GROUP INTERNATIONAL, INC., SAFEWAY SERVICES, INC., F/K/A SAFEWAY STEEL PRODUCTIONS, INC., DEFENDANTS.
WASHINGTON GROUP INTERNATIONAL, INC., THIRD PARTY PLAINTIFF
v.
KRAEMER GUNITE, INC. THIRD PARTY DEFENDANT



(Removed from Circuit Court of Madison County, IL -- No. 05-L-182).

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

MEMORANDUM AND ORDER

I. Introduction

Now before the Court is a motion to dismiss submitted by Defendant ConocoPhillips Company ("ConocoPhillips"). (Doc. 9.) Plaintiff Jim Blasa ("Plaintiff") responds in opposition. (Doc. 11.) Defendant, in turn, submitted a reply. (Doc. 12.)

For the reasons below, the Court denies ConocoPhillip's motion.

II. Background

Plaintiff alleges that he was injured while using a walkway fabricated from scaffolding for the purpose of exiting his job trailer. (Doc. 2, ¶ 3.) At the time, Plaintiff was working for Third-Party Defendant Kraemer Gunite at the "ConocoPhillips Co. site" in Madison County, Illinois. (Id.) Plaintiff's complaint does not state what type of work Plaintiff was engaged in at the work site nor the overall nature of the work being done. However, Plaintiff does allege that Defendants Nooter Construction Company and Nooter Corporation were "in the business of providing construction services." (Id., Count I ¶ 1, Count II ¶ 1.)

Originally, Plaintiff filed this case in the Circuit Court of Madison County. Plaintiff amended his original complaint on September 23, 2005 to add ConocoPhillips Company as a Defendant. (Doc. 9, ¶ 1). On January 30, 2006, Defendant ConocoPhillips, with the consent of the other Defendants, removed the case to this Court. (Doc. 1.) Plaintiff's five-count amended complaint currently asserts a negligence claim against each of the Defendants. (Doc. 2.)

III. Analysis

A. Motion to Dismiss Standard

When ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(6), a court must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in plaintiff's favor. Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). The court must then determine "whether relief is possible under any set of facts that could be established consistent with the allegations." Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992) (citingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A claim may be dismissed only if it is beyond doubt that under no set of facts would a plaintiff's allegations entitle her to relief. Travel All over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996). To survive a motion to dismiss, "[c]complaints need not plead facts and need not narrate events that correspond to each aspect of the applicable legal rule." Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir. 2006).

B. ConocoPhillips' Motion to Dismiss (Doc. 9)

In its motion to dismiss, ConocoPhillips asserts that Plaintiff's cause of action against ConocoPhillips is time-barred by 735 Ill. Comp. Stat. 5/13-202,Illinois' two-year statute of limitations for personal injury actions. (Doc. 9, ¶ 3.) Plaintiff's amended complaint alleges that Plaintiff's injuries occurred on March 12, 2003; however, Plaintiff did not add ConocoPhillips as a Defendant in this cause until September 23, 2005 -- two and one-half years after the cause of action accrued. (Doc. 9, ¶ 3). Therefore, ConocoPhillips argues that the action against it must be dismissed, with prejudice.

Plaintiff argues that 735 Ill. Comp. Stat. 5/13-214, the four-year building construction statute of limitations applies. Plaintiff asserts that the four-year statute of limitations applies because he has alleged that the Defendant "[c]onstructed or maintained the walkway, including the handrail for the stairway, in an unsafe condition." (Doc. 2, Count IV, ΒΆ 5(a).) Furthermore, Plaintiff requests leave to file an amended ...


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