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Shrum v. Big Lots Stores, Inc.

United States District Court, C.D. Illinois, Urbana Division

December 8, 2014

MACKENZIE SHRUM, Plaintiff,
v.
BIG LOTS STORES, INC., LOHIA GROUP OF INDUSTRIES a/k/a LOHIA BUSINESS GROUP a/k/a LOHIA GROUP, DESIGNCO OVERSEAS PRIVATE LIMITED a/k/a DESIGNCO INDIA a/k/a DESIGNCO, and BUREAU VERITAS CONSUMER PRODUCTS SERVICES, INC., Defendants.

OPINION

COLIN S. BRUCE, District Judge.

This case is before the court for ruling on the Motion to Dismiss Plaintiff's Amended Complaint (#6) filed by defendant Bureau Veritas Consumer Products Services, Inc. (BVCPS). This court has carefully considered the arguments of and the documents provided by the parties. Following this careful and thorough review, Defendant's Motion to Dismiss Plaintiff's Amended Complaint (#6) is GRANTED.

FACTS

This is a products-liability case. Mackenzie Shrum (Plaintiff), a minor, filed a Complaint (#1) on May 6, 2014, [1] alleging that, on May 18, 2013, a Mosaic Glass Tabletop Torch (torch) that her father, Jarrod Shrum, bought along with citronella fuel from defendant Big Lots exploded when she tried to extinguish its flame by blowing on the wick, covering her with burning fuel and causing her to suffer third degree burns to forty percent of her body.

Plaintiff states that defendants Lohia Group of Industries and Designco Overseas Private Limited (together, Designco) designed, manufactured, labeled, supplied, and distributed the torch, while Big Lots purchased for resale, labeled, marketed, distributed, and sold the torch. Plaintiff only alleges that BVCPS tested the torch for safety and compliance prior to its labeling, marketing, importation, distribution, sale, and resale. Plaintiff is asserting the following causes of action against Designco, Big Lots, and BVCPS: (1) strict products liability, design defect; (2) strict products liability, manufacturing defect; (3) strict products liability, marketing defect; and (4) negligence. Plaintiff is also asserting a cause of action against Designco and Big Lots for breach of implied warranty.

Plaintiff is a resident and citizen of Illinois. Big Lots is an Ohio corporation that has its headquarters and principal place of business in Ohio. Lohia Group of Industries and Designco Overseas Private Limited are India corporations that have their principal place of business in India. BVCPS is a Massachusetts corporation that has its headquarters and principal place of business in New York. This court sits in diversity.

BVCPS has over 100 offices and laboratories around the world and a presence in every major sourcing and selling territory. It performs product inspection, product certification, and factory assessment services, but its main business is the laboratory testing of pre-production samples of consumer products to client-specified standards. BVCPS' primary laboratory is in New York, but it has a second laboratory in Massachusetts.

BVCPS filed a Motion to Dismiss (#6) pursuant to Federal Rule of Civil Procedure 12(b)(2), a Brief in Support (#7), and an Affidavit in Support (#9) on July 7, 2014. On September 10, 2014, Plaintiff filed a Response to Motion to Dismiss (#26) and Memorandum in Opposition to Motion to Dismiss (#27), with attached exhibits. On September 17, 2014, BVCPS filed a Motion for Leave to Reply to Plaintiff's Opposition to Motion to Dismiss (#28) and Brief in Support (#29), followed by a Reply in Further Support of Motion to Dismiss (#30) on September 29, 2014. Plaintiff then filed a Motion for Leave to File Surresponse (#31) on October 8, 2014, and a Surresponse to Motion to Dismiss (#33) on October 31, 2014. An evidentiary hearing has not been held. Instead, both parties have submitted affidavits supporting their positions.

BVCPS' Contacts with Illinois

BVCPS has numerous contacts with Illinois. In determining BVCPS' contacts, this court will accept as true BVCPS' uncontested assertions relating to those contacts and draw all inferences in Plaintiff's favor if BVCPS contests relevant facts. N. Grain Mktg., 743 F.3d at 491 (citations omitted); Cent. States, 440 F.3d at 878; Crawley, 2006 WL 2331143, at *1 (citations omitted).

BVCPS has the following contacts with Illinois:

1. BVCPS tests products manufactured in Illinois. The torch, however, was not manufactured in Illinois.

2. BVCPS maintains a registered agent in Illinois for the service of process.

3. BVCPS inspects products in Illinois. In 2013, BVCPS conducted 0.98% of all the inspections it performed in Illinois. During the first seven months of 2014, it conducted 0.39% of all of the inspections it performed in Illinois.

4. BVCPS performs factory assessments in Illinois. In 2013, BVCPS performed 1.41% of all the assessments it conducted in Illinois. During the first seven months of 2014, it performed 3.33% of all of the assessments it conducted in Illinois.

5. BVCPS filed Form BCA 13.15-an application to transact business in Illinois-with the Illinois Secretary of State, although it could have filed Form BCA 4.25, which specifically states that a foreign corporation is "not transacting business in the State of Illinois at this time."

6. BVCPS employs several Illinois residents. As of the first quarter of 2013, BVCPS had three Illinois employees who were collectively paid approximately $423, 000. The three employees were an account manager who left BVCPS for another job in July 2013, BVCPS' president and director who has been stationed overseas for more than five years, and an information systems technician who does not interact with BVCPS' clients. As of the first quarter of 2014, BVCPS had two employees in Illinois who were collectively paid approximately $343, 000. The decrease in employees and gross payroll expenses is the result of the account manager leaving for other employment.

7. In the process of pursuing new clients, BVCPS solicits business in Illinois. Illinois clients generated 5.2% of BVCPS' total revenue in 2013 and 4.1% of BVCPS' ...


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