The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Amtec International of NY Corp.'s (Amtec) motion to dismiss. For the reasons stated below, we deny the motion to dismiss.
Plaintiffs are wholesale distributors of beer products. Plaintiffs allege that from around April 2005 through late 2007, Plaintiffs purchased Zywiec Beer (Zywiec) from its United States importer, Advanced Brands & Importing Co., Inc., d/b/a Star Brands Imports (Star Brands). Plaintiffs state that they each sold Zywiec to alcoholic beverage retailers who were located in Plaintiffs' respective exclusive geographic territories in northern Illinois. Plaintiffs allege that two of Plaintiffs, along with two other beer distributors who are not parties to the instant action, "collectively paid Star Brands $528,000 for their exclusive rights to distribute" Zywiec. (Compl. Par. 2). Plaintiffs contend that pursuant to the Illinois Beer Industry Fair Dealing Act, 815 ILCS 720/1 et seq. (BIFDA), Star Brands could only terminate Plaintiffs' right to distribute Zywiec for good cause, after making good faith efforts to resolve any disagreements and after Plaintiffs failed to cure any alleged performance deficiencies.
Plaintiffs allege that in early 2008, Amtec became the new importer of Zywiec. According to Plaintiffs, Amtec refused to sell Zywiec to Plaintiffs and appointed European Beer Importers, Inc. (European), an affiliate of Amtec, to be the only Zywiec distributor in the territories that had formerly been exclusively serviced by Plaintiffs. Plaintiffs state that, as a consequence of Amtec's actions, on February 28, 2008, Plaintiffs and other beer distributors brought suit against Amtec and European (2008 Action), seeking, among other things, a temporary restraining order (TRO) preventing Amtec and European from importing and selling Zywiec within Plaintiffs' exclusive sales territories, and a declaratory judgment finding that Amtec violated BIFDA and requiring Amtec to continue to sell Zywiec to Plaintiffs for Plaintiffs' wholesale distribution in their respective territories.
Plaintiffs state that the 2008 Action was similarly "predicated on the provisions of BIFDA that prevent a brewer or successive brewer from canceling, failing to renew, or otherwise terminating a distribution agreement without first (a) giving the affected [d]istributors a complete statement of the reasons therefore, (b) making good faith efforts to resolve disagreements, and (c) giving the [d]istributors an opportunity to cure the stated reasons for termination." (Compl. Par. 6). Plaintiffs state that the trial court denied the motion for a TRO after finding that Amtec was not a "successor brewer" under BIFDA since there was no evidence to suggest that Amtec acquired its distribution rights from Star Brands through merger, purchase of corporate shares, purchase of assets, or another similar arrangement. Plaintiffs filed an interlocutory appeal, and the Illinois Appellate Court affirmed the trial court's denial of the TRO and remanded the case back to the trial court for further proceedings.
According to Plaintiffs, upon remand, Amtec filed a motion to dismiss the 2008 Action. Plaintiffs allege that, in response to Amtec's motion to dismiss, Plaintiffs and the other beer distributors who had filed the 2008 Action filed a motion for leave to take discovery related to Amtec's status as a successor brewer, or alternatively, to voluntarily dismiss the action. According to Plaintiffs, on August 26, 2008, the trial court granted the motion for voluntary dismissal. Plaintiffs allege that since that time, Plaintiffs "have learned from a credible source that, notwithstanding Amtec's representations to the contrary, Amtec did make a payment to Star Brands at or about the time Amtec acquired the rights to import and distribute Zywiec Beer to wholesalers in, inter alia, the State of Illinois." (Compl. Par. 10). Such payment may be relevant to determining whether Amtec is a "successor brewer" under BIFDA since a "successor brewer" is "any person who in any way obtains the distribution rights that a brewer, non-resident dealer, foreign importer, or master distributor once had to manufacture or distribute a brand or brands of beer whether by merger, purchase of corporate shares, purchase of assets, or any other arrangement, including but not limited to any arrangements transferring the ownership or control of the trademark, brand or name of the brand." 815 ILCS 720/1.1. On August 24, 2009, Plaintiffs filed the instant action against Amtec in the Circuit Court of Cook County, Illinois, based on the "newly-discovered and quite significant evidence." (Compl. Par. 10). Plaintiffs include in their complaint state law claims for violations of BIFDA. On October 1, 2009, Amtec removed the instant action to this court. Amtec has now moved to dismiss the BIFDA claims.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under Iqbal, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556); Hecker v. Deere & Co., 569 F.3d 708, 710-11 (7th Cir. 2009). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).
I. Plaintiffs' New Allegation and Prior Judicial Admissions
Amtec argues that the instant action should be dismissed pursuant to Rule 12(b)(6) because Plaintiffs' allegation relating to Amtec's payment to Star Brands "at or about the time Amtec acquired the rights to import and distribute Zywiec" (Compl. Par. 10) is not only vague, but also "impermissibly contradict[s]" judicial admissions that Plaintiffs made in the Verified Complaint and Second Amended Verified Complaint that Plaintiffs filed in the 2008 Action. (Mot. Par. 7). According to Amtec, both verified pleadings stated that Amtec had acquired its rights to import and distribute Zywiec directly from the manufacturer. Amtec argues that Plaintiffs' prior allegations that Amtec acquired its rights to import and distribute Zywiec directly from the manufacture constitute judicial admissions "that cannot be contradicted in a later pleading unless they are formally withdrawn based on a finding of mistake or inadvertence." (Mot. Par. 8). In general, "judicial admissions are formal concessions in the pleadings that are binding upon the party making them," and thus judicial admissions "have the effect of withdrawing a fact from contention." Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995). However, a judicial admission from a pleading filed in one lawsuit does not constitute a judicial admission in a separate action, and is therefore "not binding or conclusive" with respect to the separate action. Enquip, Inc. V. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir. 1981). Instead, a judicial admission made in one action is "admissible and cognizable as an admission in another [action]," but only as evidence. Id.; see also Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th Cir. 1996)(stating that "a statement made in one lawsuit cannot be a judicial admission in another" and that "[i]t can be evidence in the other lawsuit, but no more")(emphasis in original).
Plaintiffs voluntarily dismissed the 2008 Action pursuant to 735 ILCS 5/2-1009, and filed the instant action pursuant to 735 ILCS 5/13-217. Under Illinois law, a voluntary dismissal of an action "terminates an action in its entirety." Curtis v. Lofty, 914 N.E.2d 248, 259 (Ill App. Ct. 2009). If a plaintiff subsequently recommences an action following a voluntary dismissal, the "original and refiled actions are completely distinct actions." Dubina v. Mesirow Realty Development, Inc., 687 N.E.2d 871, 875 (Ill. 1997); see also Hudson v. City of Chicago, 889 N.E.2d 210, 214 (Ill. 2008)(stating that "[o]nce the voluntary dismissal was entered, [the first action] was terminated in its entirety," and the filing of a subsequent action by plaintiff "was not a continuation of [the first action], but [was] rather an entirely new action")(emphasis in original); Wilson v. Brant, 869 N.E. 2d 818, 823 (Ill. App. Ct. 2007)(rejecting the contention that refiling of a case after voluntary dismissal is a "re-commencement" of the prior action and stating that "a complaint brought pursuant to [735 ILCS 5/13-217] is a new action"). Thus, Plaintiffs' judicial admissions in the 2008 Action are not binding and conclusive for the purposes of this action.
Amtec relies on Yarc v. American Hospital Supply Corporation, 307 N.E.2d 749 (Ill. App. Ct. 1974) to support its argument that Plaintiffs' statements from the 2008 Action constitute judicial admissions with respect to the instant action. (Mot. Par. 34). However, Yarc addressed statements contained in a plaintiff's initial verified complaint that continued to bind the plaintiff after the plaintiff filed an amended complaint in the same action. 307 N.E.2d at 752-53. Yarc did not address the effect of refiling an action following a voluntary dismissal. Amtec also cites Illinois Supreme Court Rule 216(e) (Rule 216(e)), and Illinois Supreme Court Rule 219(e)(Rule 219(e)) in support of its argument that Plaintiffs' statements from the 2008 Action remain judicial admissions in the context of the instant action. (Reply Par. 8-11). Rule 216(e) provides that a judicial admission made within a request to admit remains in effect even after a case has been voluntarily dismissed and refiled pursuant to 735 ILCS 5/13-217. Ill. Sup. Ct. Rule 216(e). However, Rule 216(e) states that it is applicable only to an "admission made by a party pursuant to [a] request" to admit. Id. The statements at issue in the instant action were made in the Verified Complaint and Second Amended Verified Complaint Plaintiffs filed in the 2008 Action, not in a response Plaintiffs made to a request to admit. Thus, Rule 216(e) has no bearing on whether Plaintiffs' statements constitute judicial ...