The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Defendant Lu Kang Tools Industrial Co., Ltd. (incorrectly identified in plaintiff's second amended complaint as Lukang Hand Tools Industries) has moved to dismiss the claims of plaintiff Patrick Cummins on the grounds that the claims are time-barred. For the reasons stated below, the Court grants Lu Kang's motion.
This personal injury suit arises out of injuries Cummins sustained while using an allegedly defective hammer manufactured by Lu Kang and distributed by defendant Home Depot, USA, Inc.
On January 10, 2006, Cummins purchased a Husky hammer from Home Depot at the Brickyard Mall in Chicago, Illinois. The hammer was labeled "Hickory," with U.S. Pat. Nos. D474667 and D475598.
On April 6, 2006, Cummins was working at a construction site, using the Husky hammer to pound out a wooden door frame. He says he used the product in the manner for which it was intended. He was injured when a small piece of the hammer's head became lodged in his eye. Cummins sustained severe and permanent injuries.
Cummins filed suit against Home Depot in the Circuit Court of Cook County on December 3, 2007. Home Depot then identified Lucky Brand Industrial Company, Ltd. as the manufacturer of the hammer. Cummins filed an amended complaint on April 3, 2008, adding Lucky Brand Industrial Company, Ltd., as a defendant. The case was removed to this Court on April 17, 2008 based on diversity of citizenship.
On October 1, 2008, Home Depot filed a third-party complaint Lu Kang, alleging that it had manufactured the hammer. On April 6, 2009, Cummins filed a second amended complaint adding Lu Kang as a defendant. In the second amended complaint, Cummins asserts claims of strict product liability and negligence against both Home Depot and Lu Kang.
A few days after Cummins filed his second amended complaint, Home Depot voluntarily dismissed its third party claim against Lu Kang, which then took over the defense of Cummins' suit. Lu Kang then moved to dismiss Cummins' claims against the company for failure to state a claim upon which relief may be granted. It argues that Cummins' claims are time-barred under the two-year statute of limitations that applies to personal injury suits in Illinois.
To survive a motion to dismiss, a plaintiff must make enough factual allegations to raise a right to relief above a "speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007). The court must view the allegations in the light most favorable to the plaintiff and accept as true all well-pled facts in the complaint. Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
The statute of limitations is an affirmative defense, and a plaintiff is not required to anticipate or negate an affirmative defense in his complaint. Limestone Development Corp. v. Vill. of Lemont, 520 F.3d 797, 802 (7th Cir. 2008); Tregenza v. Great Am. Comm'c'n Co., 12 F.3d 717, 719 (7th Cir. 1993). That said, a complaint may be dismissed for failure to state a claim if the allegations in the complaint show that the claim is barred by the applicable statute of limitations, Limestone Development Corp., 520 F.3d at 802, i.e., the date the claim accrued is incontestable, the limitations period has run, and no tolling rule possibly could apply. See Tregenza, 12 F.3d at 719.
Illinois imposes a two-year statute of limitations upon actions to recover for personal injuries. 735 ILCS 5/13-202. On its face, the complaint reveals that Cummins brought his claims against Lu Kang three years after his injury occurred. For the reasons discussed below, none of the tolling rules suggested by Cummins (the discovery rule, the "seller's exception," or an equitable exception) applies. In addition, Cummins has not contested any of the relevant dates identified in Lu Kang's motion to dismiss, and ...