The opinion of the court was delivered by: Judge J. Phil Gilbert
This matter comes before the Court on defendant Hitachi Construction Truck Manufacturing, Ltd.'s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 34). Plaintiff Donald Sims has responded to the motion (Doc. 36), and the defendant has replied to that response (Doc. 37).
I. Standard for Dismissal
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A case can be dismissed because a complaint pleads facts establishing that the defendant is entitled to prevail. Bennett v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998); Soo Line R.R. Co. v. St. Louis S.W. Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997); see Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009) (dismissal appropriate when party pleads facts establishing defense to his claim), cert. denied, 130 S.Ct. 1141 (2010). The defendant asserts that Sims has pled facts establishing that his cause of action is barred by the statute of limitations.
The Second Amended Complaint alleges that Sims was injured in a July 21, 2007, incident involving a truck designed, manufactured and distributed by Hitachi Construction Truck Manufacturing, Ltd. or its predecessor Euclid-Hitachi. While Sims was driving the truck for his job at the Black Beauty Coal Company, a fuel line in the truck ruptured and sprayed fuel on the engine. As a result, the truck caught fire, forcing Sims to jump from the truck. The jump caused Sims to be seriously injured.
On July 17, 2009, only days before Illinois' two-year statute of limitations for personal injury expired, see 735 ILCS 5/13-202, Sims filed a lawsuit in the Circuit Court of the Second Judicial Circuit, Gallatin County, Illinois. Sims alleged causes of action for negligence and strict products liability against three defendants, including one named in the caption and in the introductory paragraph as:
Euclid-Hitachi, a dissolved Delaware Corporation, n/k/a Hitachi Construction Truck Manufacturing, d/b/a Hitachi Construction Machinery Corporation, a Texas Corporation.
Compl. at 1 (Doc. 2-1) (emphasis added). Later in the Complaint, Sims explained:
3. Defendant was a Delaware Corporation known as Euclid-Hitachi, until dissolving and changing its name to Hitachi Construction Truck Manufacturing Ltd., effective January 1, 2004.
4. Hitachi Construction Truck Manufacturing Ltd., is part of Hitachi Construction Machinery, Co. Ltd., a Texas Corporation with its principal place of business at 1000 Deere Hitachi Road, Kernersville, NC 27285.
Compl. ¶¶ 3-4 (Doc. 2-1) (emphasis added). Sims was not able to serve the ...