United States District Court, C.D. Illinois
MICHAEL W. CORAN, Plaintiff,
GINO DEVELOPMENT, INC., a California corporation, and MENARD INC., a Wisconsin corporation, Individually and d/b/a MENARDS, and HANGZHOU UNI-HOSEN ELECTROMECHANICAL TOOLS CO., LTD., Defendants.
ORDER AND OPINION
E. Shadid United States District Judge
before the Court is Defendant Gino and Defendant Menard's
Joint Motion (Doc. 27) to Dismiss. Plaintiff has filed a
Response (Doc. 28) and this matter is ripe for disposition.
For the reasons set forth below, Defendants' Joint Motion
(Doc. 27) is DENIED as to Plaintiff's strict liability
claims and negligence claims and GRANTED as to
Plaintiff's warranty claims. Plaintiff may file an
amended complaint curing the deficiencies identified in his
warranty claim against Menards within 14 days of this Order.
initially filed this action against Defendants Gino
Development, Inc. (“Gino”) and Menard, Inc.
(“Menards”) on February 13, 2019 in the Circuit
Court of McLean County, Illinois. Doc. 1-1; see also
Coran v. Gino Development, Inc., No. 2019-L-18 (McLean
Cnty. Cir. Ct. Feb. 3, 2019). On April 3, 2019, Defendants
removed the action to the United States District Court for
the Central District of Illinois under 28 U.S.C. § 1441
based on the diverse citizenship of the parties. Doc. 1; 28
U.S.C. § 1332. The original complaint asserted six
causes of action against Defendants. Count 1 alleged
negligence against Gino; Count 2 alleged strict liability
against Gino; Count 3 alleged a breach of implied UCC
warranty against Gino; Count 4 alleged negligence against
Menards; Count 5 alleged strict liability against Menards;
and Count 6 alleged a breach of implied UCC warranty against
Menards. See generally Doc. 1-1. Following removal
to this District Court, the named Defendants entered their
appearances, certified the manufacturer of the allegedly
defective product, and moved to dismiss Plaintiff's
complaint. See Doc. 12 (affidavit certifying
manufacturer); Docs. 13, 14 (Motions to Dismiss).
ruling on the Motions to Dismiss, the Court denied dismissal
of the strict liability claims against Menards and Gino under
the Illinois Distributor Statute because the manufacturer,
Hangzhou, had not yet been served. Doc. 21, at 9. The Court
also denied dismissal of the strict liability claims under
Rule 12(b)(6) after finding that Plaintiff sufficiently
alleged each element of strict liability claim. Id.
at 15-16. With respect to the negligence claims against Gino
and Menards, the Court held Plaintiff failed to allege an
essential element of a negligence claim- that Gino or Menards
knew or should have known of any alleged unsafe condition
relating to the hole saw. Thus, the Court granted
Defendants' Motion with respect to the negligence claims,
but granted Plaintiff leave to replead the negligence claims
if he had a good faith basis for doing so. Id. at
12-13. Finally, the Court granted Defendants' Motion to
Dismiss with respect to the warranty claims because Plaintiff
alleged in only a conclusory fashion that Defendants sold
goods that were not merchantable at the time of sale and
failed to allege he gave notice to Defendants. Id.
at 17-18. Plaintiff was also granted leave to amend with
respect to his warranty claims.
filed his Second Amended Complaint on August 19, 2019.
Defendant Hangzhou remains unserved, and the time for service
has yet to expire. See Fed. R. Civ. P.
12(a)(1)(A)(ii). Defendants Gino and Menards have filed a
Joint Motion (Doc. 27) to Dismiss, and Plaintiff has filed a
Response (Doc. 28). This Order follows.
motion to dismiss pursuant to Rule 12(b)(6) challenges
whether a complaint sufficiently states a claim upon which
relief may be granted. See Fed. R. Civ. P. 12(b)(6).
The Court accepts well-pleaded allegations in a complaint as
true and draws all permissible inferences in favor of the
plaintiff. See Bible v. United Student Aid Funds,
Inc., 799 F.3d 633, 639 (7th Cir. 2015). To survive a
motion to dismiss, the complaint must describe the claim in
sufficient detail to put defendants on notice as to the
nature of the claim and its bases, and it must plausibly
suggest that the plaintiff has a right to relief. Bell
Atlantic Corporation v. Twombly, 550 U.S. 544, 555
(2007). A complaint need not allege specific facts, but it
may not rest entirely on conclusory statements or empty
recitations of the elements of the cause of action. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555.
Motion to Dismiss by Defendants Gino and Menards
Gino and Menards raise three issues in the instant Motion to
Dismiss. Doc. 27. The Court will first address
Defendants' argument that Plaintiff's strict
liability claims should be dismissed because Defendants have
complied with the requirements of the Illinois
Distributor's statute, 735 ILCS 5/2-621; Id. at
The Illinois Distributor Statute
Second Amended Complaint includes claims of strict liability
against Hangzhou, the manufacturer of the hole saw, Gino, the
distributor, and Menards, the retailer. In Illinois, 735 ILCS
5/2-621 governs the liability of non-manufactures in strict
liability actions. In the Court's prior Order, it stated:
Gino and Menards are entitled to dismissal of the strict
liability claims against them once Hangzhou “ha[s] or
[is] required to have answered or otherwise pleaded.”
Id. And under Rule 12(a)(1)(A) of the Federal Rules
of Civil Procedure, Hangzhou's duty to answer or
otherwise plead to Plaintiff's Amended Complaint is
triggered by Plaintiff serving Hangzhou or by Hangzhou
waiving service. See Fed. R. Civ. P. 12(a)(1)(A)(i)
(defendant required to answer within 21 days after being
served with summons and complaint) and (ii) (foreign
defendant required to answer within 90 days after request for
waiver of service sent). Thus, until Hangzhou has been served
or waives service, dismissal of the strict liability claims
against Gino and Menards ...