United States District Court, S.D. Illinois
HERNDON, District Judge
the Court are defendants' three motions to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6): (1) Altec Industries,
Inc.'s motion to dismiss strict liability Count VI (Doc.
11); (2) Altec, Inc.'s motion to dismiss negligence Count
III, and strict liability Count V (Doc. 12); and, (3) J.J.
Kane Associates, Inc. d/b/a J.J. Kane Auctioneers' motion
to dismiss strict liability Count IV (Doc. 14). Plaintiff
opposes the motions (Docs. 21-23). Based on the following,
the Court DENIES defendants' motions to dismiss, and
addresses each below.
October 2016, after lengthy state-court proceedings,
plaintiff Eric Duclos (“plaintiff”) filed a
six-count civil complaint against defendants Altec
Industries, Inc. (“Altec Indus.”), Altec Inc.
(“Altec Inc.”), and J.J. Kane Associates, Inc.,
d/b/a J.J. Kane Auctioneers (“J.J. Kane”),
which was removed to this Court from the Circuit Court of
Williamson County, Illinois, pursuant to 28 U.S.C. §
1332 (Doc. 1).
alleged that on or about November 20, 2008, J.J. Kane sold an
articulating overcenter aerial device (“aerial
device”) to-plaintiff's employer-Big D Electric,
Inc.; and, on October 9, 2012 was electrocuted, severely
burned, and lost his right arm operating the aerial device in
question, while working on an electrical construction
project. Plaintiff asserted claims for negligent/careless
design and manufacturing; negligent/careless marketing and
sale; negligent acts or omissions; and strict liability.
(Doc. 1-1) For relief, he requested damages in an amount
greater than $75, 000.00, plus costs (Id.).
Defendants now move to dismiss four of plaintiffs' counts
pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 11, 12, 14).
RULE 12(b)(6) STANDARD FOR DISMISSAL
12(b)(6) permits a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted.
Hallinan v. Fraternal Order of Police Chicago Lodge No.
7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court
explained in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007), that Rule 12(6)(b) dismissal is
warranted if the complaint fails to set forth “enough
facts to state a claim to relief that is plausible on its
face.” Notice pleading remains all that is required in
a complaint, even though federal pleading standards were
overhauled by Twombly and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). “A plaintiff still
must provide only ‘enough detail to give the defendant
fair notice of what the claim is and the grounds upon which
it rests and, through his allegations, show that it is
plausible, rather than merely speculative, that he is
entitled to relief.' ” Tamayo v.
Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
Seventh Circuit offers further instruction on what a civil
action must allege to endure 12(b)(6) dismissal. In Pugh
v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008), the
Court reiterated the standard: “surviving a Rule
12(b)(6) motion requires more than labels and
conclusions”; the complaint's allegations must
“raise a right to relief above the speculative
level.” A plaintiff's claim “must be
plausible on its face, ” that is, “the complaint
must establish a non-negligible probability that the claim is
valid.” Smith v. Medical Benefit
Administrators Group, Inc., 639 F.3d 277, 281
(7th Cir. 2011). With this in mind, the Court turns to
defendant's motions to dismiss.
Altec, Inc.'s Motion to Dismiss Negligence Count III
Inc. argues that as of March 10, 2014, it is no longer a
party to the instant claim. Specifically, it asserts that
plaintiff initially filed a state claim concerning this
matter in 2013, asserting, inter alia, causes of action for
negligence and strict liability. See Complaint,
Duclos v. S. Ill. Power Coop., et al., No. 13L157 (Ill. Cir.
Ct. Nov. 5, 2013). The initial-claim's strict liability
count was dismissed, and plaintiff filed two additional
amended complaints, but declined to name Altec, Inc. As a
result, Altec, Inc. argues that under Cox v. Kisro,
2011 WL 10500941, *3 ( Ill. App. 5 Dist. Feb. 25, 2011), it
is no longer a party to this case.
Inc. correctly states that Cox is merely
instructive; however, the Court must reiterate, Cox
may be instructive, but it is also unpublished, and therefore
exhibits a non-binding precedential effect. Nonetheless, the
Court will consider reasoning under Cox.
Cox is distinguishable from the instant matter
Cox, the plaintiff's original complaint named a
particular defendant who was not named nor referenced in a
later amended complaint. See Cox, at *3
(additionally plaintiff acknowledged in a response to
defendants' motion to dismiss that “named
defendants at this time are proper”). The court took
notice that defendant in question was no longer a party to
the case because “[a]n amended complaint that does not
refer to or adopt the original complaint supercedes the
original.” Id. (citing Foxcraft Townhome
Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150,
154, 449 N.E.2d 125, 126 (1983) (“[w]here an amendment
is complete in itself and does not refer to or adopt the
prior pleading, the earlier pleading ceases to be a part of
the record for most purposes, being in effect abandoned and
withdrawn”). The court explained its reasoning was
based on significant policy considerations, in particular,
the “expect[ancy] that a cause will proceed to ...