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Deichmann v. Waveware USA

March 20, 2007

CAROL J. DEICHMANN, AND TERRY L. DEICHMANN, PLAINTIFFS,
v.
WAVEWARE USA, WAVEWARE, LTD., AND QVC, INC., DEFENDANTS.



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

MEMORANDUM and ORDER

A. Introduction

Now before the Court are fully briefed motions to dismiss and for summary judgment in this personal injury case arising out of Carol Deichmann's use of a product called "Cozy Toze." These microwave-heatable slippers were manufactured by Waveware Limited, distributed by Waveware USA, and sold by QVC, Inc. Defendant QVC moves (Doc. 52) to dismiss Counts XI, XII, XIII, XIV and XV of Plaintiffs' amended complaint, based on an Illinois statute (735 ILCS 5/2-621). Defendants Waveware Limited and QVC seek summary judgment "on all Counts" against them (Doc. 54, p. 2). Analysis begins with the legal standards governing these motions.

B. Applicable Legal Standards

Defendants' dismissal motion cites Federal Rule of Civil Procedure 12(b), without citing a specific subsection of that Rule (Doc. 52, p. 1).*fn1 The supporting materials, however, suggest that dismissal is sought for failure to state a claim, under Rule 12(b)(6).

In assessing a Rule 12(b)(6) motion, the Court must take as true all factual allegations and construe in plaintiff's favor all reasonable inferences. Massey v. Merrill Lynch & Co., Inc., 464 F.3d 642, 656 (7th Cir. 2006); Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). A complaint should be dismissed only "if there is no set of facts, even hypothesized, that could entitle a plaintiff to relief." Massey, 464 F.3d at 656. As the United States Court of Appeals for the Seventh Circuit explained recently:

"We construe 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." Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).... Dismissal is proper "only if it 'appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id.

McCready v. EBay, Inc., 453 F.3d 882, 887 (7th Cir. 2006).

Indeed, the law of this Circuit recognizes that, generally, "a party need not plead much to survive a motion to dismiss" -- not specific facts, not legal theories, and not anything in anticipation of a possible defense. Massey at 650, citing Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901-02 (7th Cir. 2004). The gist of this Court's inquiry is "whether the complaint gives the defendant fair notice of what the suit is about and the grounds on which it rests." Mosely v. Board of Educ. of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)(complaints need only present a claim for relief).

A different standard governs motions for summary judgment filed under Federal Rule of Civil Procedure 56. Summary judgment should be granted when "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Bevolo v. Carter, 447 F.3d 979, 982 (7th Cir. 2006), quoting Fed. R. Civ. P. 56(c), and citingEzell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005), and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In assessing whether summary judgment is warranted, the Court must construe all evidence, plus the inferences reasonably drawn from the evidence, in the light most favorable to the non-moving party. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007), citing Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005). These standards are borne in mind as the Court reviews the two pending motions.

C. Analysis of Dismissal Motion (Doc. 52)

QVC urges dismissal of Counts XI, XII, XIII, XIV and XV of Plaintiff's amended complaint (Doc. 17) under 735 ILCS 5/2-621 (West 2000). That section of the Illinois Code of Civil Procedure "governs all product liability actions and provides the methods by which a nonmanufacturing defendant may be dismissed." Carollo v. Al Warren Oil Co., Inc., 820 N.E.2d 994, 1006 (Ill. App. 2004).

Specifically, § 2-621 provides:

(a) 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 product allegedly causing injury, death or damage....

(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers 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....*fn2 Clearly, ยง 621's mechanism for dismissal of non-manufacturing defendants only works for product liability claims. In the case at bar, QVC (the non-manufacturing Defendant) requests dismissal of Counts XI, XII, XIII, XIV and XV. Only Count XII is a true strict liability claim. Count XI is a negligence ...


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