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Ducloss v. Altec Industries, Inc.

United States District Court, S.D. Illinois

February 27, 2017

ERIC DUCLOS, Plaintiff,


          HERNDON, District Judge

         Before 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.

         I. BACKGROUND

         In 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”), [1] which was removed to this Court from the Circuit Court of Williamson County, Illinois, pursuant to 28 U.S.C. § 1332 (Doc. 1).

         Plaintiff alleged that on or about November 20, 2008, J.J. Kane sold an articulating overcenter aerial device[2] (“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) 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) (citation omitted).

         The 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.

         II. ANALYSIS

         A. Altec, Inc.'s Motion to Dismiss Negligence Count III

         Altec 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.

         Altec 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.

         i. Cox is distinguishable from the instant matter

         In 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 ...

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