The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment. Although Defendant moved on several grounds, the only issue fully briefed by the parties and addressed in this memorandum relates to Defendant's argument that Plaintiff's claim is barred by the limitations provision of the Tennessee Consumer Protection Act. For the following reasons, Defendant's Motion is denied with respect to that issue.
Plaintiff brings a claim under the Tennessee Consumer Protection Act (the "TCPA") against Defendant Sears, Roebuck and Co. ("Sears") in connection with a dryer Plaintiff purchased in November 2001 at a Sears retail store. Plaintiff alleges that the dryer was labeled and marketed as "stainless steel" but the dryer drum was not 100% stainless steel and left rust stains on his clothing. Plaintiff brought a claim against Sears under the TCPA for unfair or deceptive acts or practices and Sears moved for summary judgment on July 6, 2007. As stated above, this memorandum addresses only Sears' argument that Plaintiff's TCPA claim is barred by that Act's limitations provision, specifically, its statute of repose.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Intern.-Indiana, Inc., 211 F.3d 392, 396 (7th Cir., 2000). In ruling on a summary judgment motion, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372 (2007). A genuine issue of material fact exists only if a reasonable finder of fact could return a decision for the nonmoving party based upon the record. See Insolia v. Phillip Morris Inc., 216 F.3d 596, 599 (7th Cir., 2000).
Plaintiff contends that Sears waived any defense based on the TCPA's limitations provision by not asserting in its Answer any affirmative defense that Plaintiff's claim is time-barred. Plaintiff is incorrect. Sears' Ninth Defense set forth in its Answer states, "Plaintiff's claims, and those of the putative class, may be barred in whole or in part by the statute of limitations." Thus, Sears did not waive the TCPA's limitations provision as an affirmative defense.
B. Applicable Statute of Limitations
Plaintiff contends that his TCPA claim is not subject to the limitations provision of the TCPA, but rather is subject to the statute of limitations set forth in the Illinois Consumer Fraud and Deceptive Business Practices Act, the Illinois statute most analogous to the TCPA. A federal court sitting in diversity applies the statute of limitations which would be applied by the state in which the federal court sits. See Thomas v. Guardsmark, Inc., 381 F.3d 701, 707 (7th Cir., 2004); Hollander v. Brown, No. 05-57, 2005 WL 1563125, at *2 (N.D.Ill., June 28, 2005). Although an Illinois court would apply Tennessee substantive law to Plaintiff's TCPA claim, Illinois treats the statute of limitations as a procedural matter for choice of law purposes and applies the Illinois statute of limitations to claims filed in Illinois. See Kalmich v. Bruno, 553 F.2d 549, 553 (7th Cir., 1977); Telular Corp. v. Mentor Graphics Corp., 282 F.Supp.2d 869, 870 (N.D.Ill., 2003). The Illinois borrowing statute represents an exception to this rule and compels an Illinois court to borrow the limitations period of the state in which the cause of action arose when none of the parties are Illinois residents and the foreign limitations period is shorter than that of Illinois. LeBlanc v. G.D. Searle & Co., 533 N.E.2d 41 (Ill.App.Ct., 1988). The Illinois borrowing statute, entitled "Foreign limitation" states:
When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws of thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State. 735 ILCS 5/13-210.
Here, Plaintiff is a Tennessee resident, the action arose in Tennessee where Plaintiff bought the dryer, and Plaintiff brings his claim pursuant to Tennessee law. Sears is a New York corporation and therefore a resident of New York for purposes of the borrowing statute. See Hollinger Intern., Inc. v. Hollinger Inc., No. 04-0698, 2005 WL 589000, at *26 (N.D.Ill., Mar. 11, 2005); Telular, 282 F.Supp.2d at 872, citing LeBlanc, 533 N.E.2d 41. The TCPA has a two-year statute of limitations and a five-year statute of repose. Tenn. Code § 47-18-110. The Illinois Consumer Fraud Act would impose a three-year statute of limitations and no statute of repose on Plaintiff's claim. 815 ILCS 505/10a(e). The TCPA thus has a shorter limitations period and, because neither party is an ...