The opinion of the court was delivered by: Reagan, District Judge
Plaintiff Donna Wetherell sued Defendant ClimateMaster, Inc. on September 6, 2007 in the Circuit Court of Johnson County, Illinois seeking certification for a class action. ClimateMaster later removed the case to this Court on October 3, 2007, invoking the Court's subject-matter jurisdiction over diverse class actions, see 28 U.S.C. § 1332 (2006). Donna's husband Robin*fn1 joined as a plaintiff and alternate class representative about a year later on September 24, 2008. After various parts of their suit had been dismissed (see Docs. 50, 54, 55, 57), what remains is that the Wetherells accuse ClimateMaster of selling heat pumps to consumers that contained parts that ClimateMaster knew were defective. They argue that the conduct violated § 2 of the Consumer Fraud and Deceptive Business Practices Act (CFDBPA), 815 Ill. Comp. Stat. 505/2 (2008), and caused unjust enrichment.
Now ClimateMaster moves for summary judgment, arguing that, as the Wetherells knew that their alleged injury was wrongfully caused in 2002, their suit is time barred on all remaining claims.
ClimateMaster provided the depositions of the Wetherells in support. The Wetherells of course oppose the motion but without avail. Filing a suit in September 2007 for an injury that arose in March 2002 is too late under Illinois law, and the Wetherells are unable to raise a genuine issue of fact contesting the 2002 date or to provide a legal reason that the date should be extended. The Court will accordingly grant ClimateMaster's motion.
The Summary Judgment Inquiry
Courts should grant summary judgment to the moving party when "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). The party that moves for summary judgment "bears the initial responsibility of informing a court of the basis for its motion," meaning that it must identify the materials listed in Rule 56(c) that "demonstrate the absence of a genuine issue of material fact." Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may do so by "pointing out... that there is an absence of evidence to support the non-moving party's case." Id. (quoting Celotex Corp., 477 U.S. at 325).
Once the moving party satisfies its burden, "the non-moving party must do more than raise a metaphysical doubt as to the material facts" if it wants to defeat summary judgment. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-moving party cannot rest on the pleadings but must respond, with affidavits or other materials under Rule 56(c), setting forth specific facts that show a genuine issue for trial. Fed. R. Civ. P. 56(e); Oest v. Ill. Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001) (quoting Fed. R. Civ. P. 56(e)). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-moving party must also be careful as to what Rule 56(c) materials it proffers to the Court, as "conclusory allegations and selfserving affidavits, if not supported by the record, will not preclude summary judgment." Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1999) (citing Darnell v. Target Stores, 16 F.3d 174, 176--77 (7th Cir. 1994)). The non-moving party does have one benefit, though, in that the Court must construe the Rule 56(c) materials in the non-moving party's favor, including all reasonable inferences from those materials. Keri, 458 F.3d at 628.
Construing the materials in the Wetherells' favor, the Court assumes the following facts for purposes of deciding summary judgment:
The Wetherells purchased a geothermal heating and cooling unit from ClimateMaster on June 15, 1999. Soon after purchasing the unit, Fowler Heating and Cooling (not a party to this suit) installed the unit. (Dep. of Donna Wetherell 118; Dep. of Steven Fowler 73--74.) Beginning two years after the purchase of the unit, the Wetherells began experiencing problems and requested service from Fowler. First, the refrigerant was low, so Fowler added three pounds of refrigerant on December 18, 2001. (Doc. 95 Ex. E.)
The Wetherells still had problems with their unit, and on March 15, 2002, Fowler came out again and discovered a leak in the air coil unit of the ClimateMaster geothermal device and replaced the air coil unit with another. (Doc. 95 Ex. F.) On or before that time, both Dr. and Mrs. Wetherell knew that something was wrong with their unit. Mrs. Wetherell testified that she knew on March 15 that the reason for the problems was the failed air coil. (Dep. of Donna Wetherell 133--34.) She also suspected that ClimateMaster was responsible for the unit's failure. (Id. at 134.) Dr. Wetherell also knew on March 15 of the unit failure (Dep. of Robin Wetherell 95--96), but in deposition admitted that he undertook no investigation of the cause of the failure afterwards (id. at 116). There is conflicting testimony as to whether Dr. Wetherell knew at the time of the March 15 coil failure that ClimateMaster was responsible for the failure (Compare id. at 95--96 ("Q. And you knew at least that you could take legal action against someone, right? A. That's correct."), with id. at 97--98 ("A. I didn't know that. Q. Didn't know what? A. That I could sue them. Q. Fowler, right? A. Anybody.")).
The unit continued to have problems. On February 17, 2005, technicians were called out to add one pound of refrigerant. (Dep. of Donna Wetherell 149--50.) Technicians came out again on September 30, found a refrigerant leak in the replacement air coil, so they added two more pounds of refrigerant and ordered a new air coil. (Dep. of Steven Fowler 131.) The new air coil was installed on December 7, but that air coil also had a leak. (Dep. of Donna Wetherell 155--57.)
At this point, the Wetherells were fed up with the ClimateMaster unit. Mrs. Wetherell believed by December 7 that the air coils were eroding. (Id. at 174.) Dr. Wetherell discussed with the Fowler organization "why the unit broke again" and "what needed to be done to fix it and what it would take to fix it." (Dep. of Robin Wetherell 100.) Eventually, the Wetherells replaced the ClimateMaster unit entirely with one purchased from a different manufacturer on December 27, 2005. (Doc. 101 Ex. 4.) They brought their suit almost two years later on September 6, 2007.
It turns out that, with the exception of conflicting evidence on the very last air coil ordered (see Doc. 95 Ex. I (indicating that the last replacement coil was coated)), the air coils were not coated with enamel (see Dep. of Steven Fowler 110--12, 140--42 (indicating that all replacement coils were uncoated)). ClimateMaster knew that its air coils tended to leak in the Illinois market. (See Doc. 101 Exs. 6, 7, 8.) Its employees had on several occasions recommended coating the air coils with enamel, which is referred to as "e-coating," to remedy the problem. (See Doc. 101 Ex. 9, 11.) An e-mail from Douglas Wall, a ClimateMaster employee, indicates that enamel coated coils tended to resist corrosion better than uncoated ones. (Doc. 101 Ex. 11.) ClimateMaster never disclosed the fact that they knew its air coils tended to leak to any Illinois consumers, nor did it issue a standard communication to those consumers or dealers about the problems with the air coils. (Dep. of Andrew Taussig 143--44.) It ...