The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Van Leer Malaysia SDN. BHD.'s ("Van Leer") and Defendant Greif, Inc.'s ("Greif") motions to dismiss. For the reasons stated below, we grant the motions to dismiss.
Plaintiff Acme-Hardesty Co. ("Acme") alleges that, in 2004, employees of Tom's of Maine ("Tom's") heated a drum of capric acid in a drum heater that Tom's purchased from Ohm Temp International, Inc. ("Ohm"). Tom's allegedly purchased the barrels of capric acid from Acme, which is a distributor of the product. The capric acid allegedly began leaking during the heating process and flowed onto the exposed heating element of the drum heater, causing a fire. The fire allegedly caused damage to Tom's Kennenbunk, Maine manufacturing facility. In February 2007, Tom's allegedly sued Acme and Ohm in Maine state court ("Maine Action"). Acme then removed the Maine Action to federal court in April 2007. Acme also filed a third-party complaint against various entities for contribution and indemnity. The district court in the Maine Action then dismissed defendants in the third party complaint including Van Leer and Greif for lack of personal jurisdiction.
Acme subsequently initiated the instant action for contribution, indemnity and other relief. Acme alleges that the capric acid at issue was manufactured and packaged by Defendant Akzo Nobel NV ("Akzo") at its manufacturing facility in Malaysia. Akzo allegedly sold and shipped the capric acid to Acme in December 2002 and the product was stored in Pennsylvania. Acme then allegedly sold the product to Tom's and shipped the product to Tom's in December 2003. Acme contends that Van Leer designed, manufactured and sold the barrel to Akzo that contained the capric acid. In regard to Greif, Acme contends that Greif owns Van Leer.
Acme includes in its complaint negligence claims (Counts I-II), breach of implied warranty of merchantability claims (Counts II-VI), breach of implied warranty of fitness for a particular purposes claims (Counts V-VI), strict liability claims (Counts VII-VIII), breach of contract claims (Count IX), breach of express warranty claims (Count X), claims based on the vouching-in-doctrine (Count XI), and breach of implied indemnity claims (Count XII). In the instant action, on October 7, 2008, we granted Acme leave to conduct limited discovery relating to personal jurisdiction issues. Subsequently, on January 28, 2009, Acme voluntarily dismissed Defendant Akzo, Defendant Akzo Nobel Industries SDN. BHD., and Defendant Akzo Nobel Chemicals International BV, which were the Defendants associated with the sale of the capric acid to Acme. The remaining Defendants Van Leer and Greif are connected to the barrel that contained the capric acid. Van Leer and Greif each move to dismiss the claims brought against them.
In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."
E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later")
Federal Rule of Civil Procedure 12(b)(2) directs a court to dismiss a claim for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Although a plaintiff need not anticipate in its complaint a personal jurisdiction challenge, "once the defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating the existence of jurisdiction." Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 781-82 (7th Cir. 2003); Kinslow v. Pullara, 538 F.3d 687, 690 (7th Cir. 2008)(stating that "[t]he plaintiff bears the burden of proving that the jurisdictional requirements are met, but if no facts are in dispute, as is the case here, then the party asserting jurisdiction need only establish a prima facie case of personal jurisdiction to satisfy that burden"); Central States, Southeast and Southwest Areas Pension Fund v. Phencorp Reinsurance Co., Inc., 440 F.3d 870, 875 (7th Cir. 2006)(indicating that the plaintiff bears the burden of establishing personal jurisdiction). If the district court holds an evidentiary hearing to address the personal jurisdiction issue, the "plaintiff must establish jurisdiction by a preponderance of the evidence." Purdue Research Foundation, 338 F.3d at 781-82. If the district court rules solely based on written materials submitted by the parties, "the plaintiff 'need only make out a prima facie case of personal jurisdiction.'" Id. (quoting in part Hyatt Intern. Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002)). In determining whether a plaintiff has made a prima facie showing, "the plaintiff 'is entitled to the resolution in its favor of all disputes concerning relevant facts presented in the record.'" Id. (quoting Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir. 1983)). In assessing whether a plaintiff has made a prima facie showing the court can consider materials presented to the court by the parties such as affidavits. Id.
I. Subject Matter Jurisdiction
We initially note that Acme has failed to meet its burden as the plaintiff to show that this court has subject matter jurisdiction in this case. A "federal judge's first duty in every case" is to "independently . . . inquir[e] whether the court has" subject matter jurisdiction. Belleville Catering Co. v. Champaign Market Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). Acme contends in its complaint that this court has diversity subject matter jurisdiction in this case. (Compl. Par. 49). A federal court has diversity subject matter jurisdiction "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and" the action "is between . . . citizens of different States" or between "citizens of a State and citizens or subjects of a foreign state. . . ." 28 U.S.C. § 1332(a). For diversity purposes, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business. . . ." 28 U.S.C. § 1332(c)(1). In the instant action, Acme alleges in the complaint that Defendants are all foreign corporations operating in foreign countries, although Acme indicates that Greif's principal place of business is in Delaware, Ohio. (Compl. Par. 27-45). Acme, however, has not provided sufficient facts concerning its citizenship and thus has failed to meet its burden as a plaintiff to show that this court has subject matter jurisdiction. Acme indicates only that its principal place of business is in Pennsylvania. (Compl. Par. 1). Acme does not indicate its state of incorporation or even whether it is a domestic corporation. The facts indicate only that it operates as a distributor in the United States. (Compl. Par. 71). We cannot presume facts not included in the complaint regarding subject matter jurisdiction which is the threshold issue for this case proceeding in this court. Therefore, since Acme has failed to show that this court has subject matter jurisdiction, we dismiss the instant action for lack of jurisdiction. In addition, as is explained below, even if Acme could remedy the defects in its jurisdictional allegations and show that this court has subject matter jurisdiction, Van Leer and Greif have shown that the remaining claims should be dismissed.
II. Van Leer's Motion to Dismiss
Van Leer argues that the claims brought against it should be dismissed since it is not subject to personal jurisdiction in Illinois and since it has not been properly served. We need not address the service issue since, as is explained below, Acme has not shown that Van Leer is subject to personal jurisdiction in Illinois. In a case in federal court premised solely on diversity subject matter jurisdiction, the court "has personal jurisdiction only where a court of the state in which it sits would have such jurisdiction." Citadel Group Ltd. v. Washington Regional Medical Center, 536 F.3d 757, 760 (7th Cir. 2008). To determine whether a defendant is subject to personal jurisdiction in Illinois, a court must consider the limitations imposed by "the Illinois long-arm statute, the Illinois constitution, and the federal constitution." Id. A defendant is subject to general jurisdiction "where the defendant's contacts with the forum state are 'continuous and systematic.'" Id. n. 3 (quoting Helicopteros ...