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Zelasko v. Comerio

July 23, 2009

SANDRA ZELASKO, PLAINTIFF,
v.
RODOLFO COMERIO AND HARBURG-FREUDENBERGER MASCHINENBAU GMBH, DEFENDANTS.
RODOLFO COMERIO, THIRD-PARTY PLAINTIFF,
v.
CONTINENTAL TIRE NORTH AMERICA, INC., THIRD-PARTY DEFENDANT.
HARBURG FREUDENBERGER MASCHINENBAU GMBH, THIRD-PARTY PLAINTIFF,
v.
CONTINENTAL TIRE NORTH AMERICA, INC., THIRD-PARTY DEFENDANT.



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

A. Introduction and Procedural Background &Thorn; ZELASKO'S COMPLAINT (AGAINST RODOLFO AND KRUPP/HF)

In April 2006, Sandra Zelasko was injured while working at her job in a tire production plant in Mt. Vernon, Illinois. Zelasko's employer was Continental Tire North America, Inc. ("Continental"). In May 2008, Zelasko filed suit in the Circuit Court of Jefferson County, Illinois against two Defendants: (1) Rodolfo Comerio Snc di Enrico e Carlo Comerio ("Rodolfo") and (2) Krupp Elastomertechnik ("Krupp"). Zelasko's complaint alleges as follows. Rodolfo (an Italian company that designs and manufactures equipment used in the rubber industry) sold a rubber "cushion calendar" machine to Continental Tire for use at the Mt. Vernon plant. Krupp manufactured and sold to Continental an emergency safety rope that was installed on the Rodolfo cushion calendar system sold to Continental for use at the Mt. Vernon facility.

While "tailing out the cushion calendar" on April 22, 2006 and cutting excess rubber off an anvil, Zelasko's left glove got caught. Her arm was pulled over the top of the anvil roller. Zelasko grabbed the right emergency safety rope manufactured by Krupp, but the cushion calendar system continued to pull her into the machine. Co-workers heard Zelasko's screams and used the conveyor line emergency stop to halt the machine. Zelasko suffered internal and external injuries and was disfigured and disabled. Zelasko's state court complaint contains products liability, negligence and breach of warranty claims against Rodolfo (based on defective condition of the cushion calendar and the lack of warnings regarding this condition, etc.) and Krupp (based on the defective condition of the emergency safety rope and lack of warnings, etc.).

Krupp removed the action to this United States District Court, which enjoys subject matter jurisdiction under the federal diversity statute, 28 U.S.C. § 1332. In the removal notice, Krupp advised that its proper legal name is Harburg-Freudenberger Maschinenbau GmBH (referred to from this point on as "HF"), that it is a Germany corporation located in Hamburg, Germany, and that it was formerly known as Krupp Elastomertechnik.*fn1

Rodolfo consented to the removal and demanded a jury trial. The Court set final pretrial conference and trial dates (see Docs. 12 and 37). An initial Scheduling and Discovery Order was entered in July 2008 (Doc. 32). Answers were filed, and additional defense counsel entered. &Thorn; RODOLFO & HF'S THIRD-PARTY COMPLAINTS (AGAINST CONTINENTAL)

In February 2009, Defendant Rodolfo filed a third-party complaint against Continental (Doc. 58). Defendant HF also filed a third-party complaint against Continental (Doc. 63). The third-party complaints allege that Continental breached its duty to exercise reasonable care for its employee (Zelasko)'s safety. The third-party complaints seek contribution from Continental, in the event Rodolfo or HF is found liable to Zelasko. Continental answered the third-party complaints in April and May 2009 (Docs. 79, 82). &Thorn; RODOLFO AND HF'S CROSSCLAIMS (AGAINST EACH OTHER)

Rodolfo filed a cross-claim against Defendant HF (Doc. 74) in April 2009. HF responded in kind (Doc. 75).

HF answered Rodolfo's cross-claim on May 8, 2009 (Doc. 83). Rodolfo answered Count I of HF's cross-claim (Doc. 90) and moved to dismiss Counts II and III of HF's cross-claim under Federal Rule of Civil Procedure 12(b)(6)(Doc. 88). The Court now rules on Rodolfo's dismissal motion, which was fully briefed as of May 16, 2009.

B. Applicable Legal Standards

HF's cross-claim against Rodolfo (part of Doc. 75) is based on claims for contribution (Count I), implied indemnity (Count II), and breach of warranty (Count III). Rodolfo answered Count I and seeks to dismiss Counts II and III under Rule 12(b)(6).

A 12(b)(6) motion challenges the sufficiency of the complaint (or cross-claim) to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, -- F.3d --, 2009 WL 1794329 (7th Cir. June 25, 2009). Dismissal is warranted under Rule 12(b)(6) if the complaint (or cross-claim) fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007).

In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 128 S.Ct. 357 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006).

In Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008), the Seventh Circuit emphasized that even though Bell Atlantic "retooled federal pleading standards" and "retired the oft-quoted Conley formulation," notice pleading is still all that is required.

"A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Id. Accord Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008)("surviving a Rule 12(b)(6) motion requires more than labels and ...


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