The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on a Motion to Dismiss by Defendant, American Equipment & Fabricating Corporation. (Doc. 25).*fn1 Plaintiff, Kevin J. Williams, has responded in opposition to the Motion to Dismiss. (Doc. 27). For the reasons stated below, the Motion to Dismiss is denied.
Plaintiff's Fourth Amended Complaint states that he was injured while he was employed by T. Steele Construction, Inc., and working in Maywood, Illinois, on October 10, 2007. Plaintiff alleges his injury was caused by a large rock, which was thrown off of a Soilmec R-312/200 Hydraulic Drilling Rig ("Drill"). This Drill was sold by Defendant to his employer, and, according to Plaintiff, was, on the date of the accident, in the same condition as when it was purchased from Defendant. Plaintiff asserts two counts against Defendant. In the first count, based on strict liability, Plaintiff asserts that the Drill was unreasonably dangerous in that it had no guard or other safety devices to limit the distance the cuttings could be thrown when spun off, there were no adequate warnings which accurately described the danger posed by the Drill, and there were no adequate warnings to make known to Plaintiff that the Drill was entering spinoff mode so Plaintiff could take necessary precautions. In the second count, based in negligence, Plaintiff asserts that Defendant negligently sold and distributed the Drill, failed to give adequate warnings, failed to furnish adequate safety devices, and failed to furnish adequate warning devices.
Defendant moved to dismiss the Fourth Amended Complaint, alleging that, as it is the distributor, rather than the manufacturer, of the Drill, and that it is therefore entitled to dismissal under Illinois' "seller's exception" to products liability actions. 735 ILCS 5/2-621.*fn2 As required by the statute, Defendant included an affidavit certifying that the manufacturer of the Drill is Soilmec, S.p.A., which is located in Italy. (Doc. 25, Ex. A).
Illinois law recognizes a "seller's exception" to products liability actions that are based on strict liability. 735 ILCS 5/2-621. Prior to 1995, § 2-621 applied only to actions in strict liability; plaintiffs who proceeded against a non-manufacturer defendant under a negligence theory were not subject to dismissal under § 2-261. Link by Link v. Venture Stores, Inc., 677 N.E.2d 486, 989 (Ill. App. 1997). In 1995, Public Act 89-7 amended § 2-261, to provide that the section applied to "any theory or doctrine." In Best v. Taylor Machine Works, though, the Illinois Supreme Court found Public Act 89-7 unconstitutional in its entirety. 689 N.E.2d 1057 (1997). Therefore, the version of § 2-621 that was in effect prior to the 1995 amendment is currently applicable. Murphy v. Mancari's Chrysler Plymouth, Inc., 887 N.E.2d 569, 572 fn. 2 (Ill. App. 2008).
The pre-amendment version of § 2-621 provides that a non-manufacturing defendant to a products liability suit based on strict liability is to file an affidavit certifying the correct identity of the manufacturer of the product in question when the defendant answers or responds to the complaint. 735 ILCS 5/2-621(a). After this certification, and after the plaintiff has filed a complaint against the manufacturer and the manufacturer has been required to respond, the court is required to dismiss the strict liability claim against the non-manufacturer. 735 ILCS 5/2-621(b). Dismissal is not appropriate if the non-manufacturer "exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product[;] had actual knowledge of the defect in the product[; or] created the defect in the product." 735 ILCS 5/2-621(b) & (c). If the plaintiff is unable to proceed against the manufacturer, it may move under certain circumstances to vacate the dismissal and reinstate the non-manufacturer defendant. 735 ILCS 5/2-621(b).
I. Count I: Strict Liability
Defendant argues that § 2-621 entitles it to dismissal of the strict liability count, as it has correctly identified the manufacturer of the Drill. Defendant asserts that it has not "exercised any significant control over the design or manufacture of the product, or provided instructions or warning to the manufacture[r] relative to the alleged defect in the product," that it "had no actual knowledge of the alleged defect," and that it "did not create the alleged defect." (Doc. 26 at 3). Plaintiff asserts that Defendant had to know that the Drill was not equipped with a guard or warnings that would have prevented Plaintiff's injury, as it was obvious, and that the "actual knowledge of the defect" exception to § 2-621 applies. (Doc. 27 at 3-4).
The Court need not determine at this point whether the allegedly "obvious" fact of the lack of a guard or warnings constitutes "knowledge" of the Drill's alleged defect within the terms of § 2-621(c)(2).*fn3 Under the terms of the statute, the court must dismiss the non-manufacturing defendant "once the plaintiff has filed a complaint against the manufacturer," and after the manufacturer has answered or has been required to answer or otherwise plead. 735 ILCS 5/2-621. Therefore, filing a complaint against the manufacturer and requiring the manufacturer to respond is a prerequisite to dismissal under § 2-621. Here, Defendant has certified that Soilmec, S.p.A. is the manufacturer of the Rig. (Doc. 25, Ex. A).
Plaintiff has not filed a complaint against Soilmec, S.p.A., and it has not been required to respond.*fn4 Under the plain terms of the statute, dismissal of Defendant at this point in time is premature. Cherry v. Siemans Medical Systems, Inc., 565 N.E.2d 215, 218 (Ill. App. 1990) (dismissal of non-manufacturer prior to service on manufacturer premature). See also Cincinnati Ins. Co. v. Production Design Products, Inc., 06-cv-915, 2007 WL 1021975, *1 (S.D. Ill. 2007) ("statute requires a court to dismiss a non-manufacturing defendant once the manufacturer is properly before it"); Kellerman v. Crowe, 518 N.E.2d 116, 119 (Ill. 1987) ("statute provides a means by which certain defendants may avoid the costs of defending a product liability action once the manufacturer has been made a party"); Saieva v. Budget Rent-A-Car of Rockford, 591 N.E.2d 507, 524 (Ill. App. 1992) (trial court delayed ruling on motion to dismiss under § 2-621 until manufacturer had answered or been required to answer the complaint). As Defendant points out, Plaintiff has a duty of due diligence "in filing the action and obtaining jurisdiction over the manufacturer." 735 ILCS 5/2-261(b); Cherry, 565 N.E.2d at 218-19. The Court finds that, though Plaintiff has such a duty, the fact that Plaintiff has not yet sought to sue Soilmec, S.p.A. does not mandate dismissal at this time.
In Cherry, the Illinois Appellate Court for the First District found that, though the trial court's dismissal of a non-manufacturer defendant prior to service on the manufacturer was "premature," it need not be deemed error in that case, because (1) the plaintiff had failed to exercise due diligence and (2) the non-manufacturer defendant would ultimately have been entitled to dismissal. Cherry, 565 N.E.2d at 218-19. Here, Plaintiff's several Motions for Leave to File Amended Complaints show that Plaintiff has been making attempts to sue and serve the proper manufacturer throughout this litigation, unlike the plaintiff in Cherry. (Docs. 12, 16, 18, 20). In addition, in Cherry, the court found that the plaintiff's duty of due diligence, if breached, would justify a premature dismissal of the non-manufacturing defendant where the plaintiff's only claim against that defendant was that it was part of the distribution chain. Id. at 218-19. Plaintiff also claims that Defendant was negligent in its sale and distribution of the Drill. (Doc. 21 at 3). As will be discussed below, Defendant will have to remain in this suit and undergo the expenses of litigation whether or not the strict liability count is dismissed at this time.
Finally, it is not certain here that Defendant will ultimately be entitled to dismissal, as the Cherry defendant was,*fn5 so dismissal is inappropriate in this case at this time. Id. at 218. Plaintiff, in its Response to Defendant's Motion to Dismiss, alleges that Defendant had to know of the alleged defect in the Drill, as it was "obvious." (Doc. 27 at 3-4). Plaintiff argues that § 2-621(c)(2) applies to prevent dismissal. As discussed by the Illinois Appellate Court for the First District, § 2-621(c) "introduces elements usually at issue in negligence actions" by focusing on the conduct of the defendant, rather than merely the dangerousness of the product. Murphy, 887 N.E.2d at 575. At this point, before discovery as to Defendant's knowledge and conduct in relation to the alleged defect in the Drill has been conducted (which will also be at issue under the negligence count), it is premature to decide whether Defendant had knowledge of the Drill's alleged defect and thus whether § 2-621(c)(2)'s exception applies.*fn6 See ...