Boston Fish Market, Inc. et al v. EMS-USA Insulated Doors, Inc., et al.

Filing 67

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 6/3/2013.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BOSTON FISH MARKET, INC., and LOUI
CONSTRUCTION CO., INC.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
EMS-USA INSULATED DOORS, INC., EMS
)
ISOLIERTUREN GMBH, D&D TOTAL
)
CONSTRUCTION, and MYERS MANAGEMENT, LLC, )
)
Defendants.
)

12 C 6751
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Boston Fish Market, Inc. (“BFM”) and Loui Construction Co., Inc. (“LCC”) allege in this
suit that EMS-USA Insulated Doors, Inc. (“EMS-USA”), EMS Isolierturen Gmbh (“EMSGermany”), D&D Total Construction (“D&D”), and Myers Management, LLC (“Myers”) are
responsible for damages arising from the improper installation of industrial insulated doors at a
BFM-leased facility in Des Plaines, Illinois. Doc. 1. The complaint asserts claims for breach of
contract (Count I) and breach of warranty (Count II) against EMS-USA, EMS-Germany, and
Myers, and a negligence claim (Count III) against all four defendants. Now before the court are
five motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6).
Two of the motions seek dismissal of Count III, the negligence claim. Docs. 20, 39.
Plaintiffs do not oppose the motions, and in fact have moved to voluntarily dismiss Count III.
Doc. 64. Because Defendants have not answered or moved for summary judgment as to Count
III, the court will construe Plaintiffs’ motion to voluntarily dismiss that count as a notice of

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voluntary dismissal under Rule 41(a)(1)(A)(i). Accordingly, Count III is dismissed without
prejudice and Defendants’ motions to dismiss Count III are denied as moot.
Two other motions seek dismissal of LCC’s claims. Docs. 22, 38. After granting
Plaintiffs numerous extensions of time to respond to the motions in light of the parties’
settlement discussions, Docs. 35, 45, 51, 57, the court entered a scheduling order setting April
30, 2013 as the deadline for LCC to respond to the motions to dismiss and May 21, 2013 as the
deadline for Defendants to reply, Doc. 57. LCC never responded to the motions, which is fatal to
its claims.
“If [a court is] given plausible reasons for dismissing a complaint, [the court is] not going
to do the plaintiff’s research and try to discover whether there might be something to say against
the defendant’s reasoning.” Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th
Cir. 1999). Under such circumstances, then, a plaintiff’s failure to respond to a defendant’s
motion to dismiss provides grounds for granting the motion. See Alioto v. Town of Lisbon, 651
F.3d 715, 719 (7th Cir. 2011) (“As to the defendants’ motion to dismiss the complaint, Alioto
waived his right to contest the dismissal by failing to oppose the motions.”); Lekas v. Briley, 405
F.3d 602, 614 (7th Cir. 2005) (“[w]hile Lekas alleged in his complaint that his segregation was in
retaliation for his filing of grievances, he did not present legal arguments or cite relevant
authority to substantiate that claim in responding to defendants’ motion to dismiss”); Kirksey,
168 F.3d at 1041 (“In effect the plaintiff was defaulted for refusing to respond to the motion to
dismiss. And rightly so.”).
Defendants have set forth plausible grounds to dismiss LCC as a plaintiff as to the
contract and warranty claims; the negligence claim, having been dismissed, need not be
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considered. Defendants plausibly contend that LCC acted only as BFM’s disclosed agent, was
not a party to the contract at issue, and therefore lacks the privity to bring suit on its own behalf.
See Szajna v. General Motors Corp., 503 N.E.2d 760, 764-65 (Ill. 1986) (lack of privity
precludes warranty claim); Law Offices of Colleen M. McLaughlin v. First Star Fin. Corp., 963
N.E.2d 968, 975 (Ill. App. 2011) (“only a party to a contract, or one in privity with a party, may
sue on a contract”); IWOI, LLC v. Monaco Coach Corp., 581 F. Supp. 2d 994, 1000-01 (N.D. Ill.
2008). Accordingly, LCC’s claims are dismissed with prejudice.
The fifth motion, filed by EMS-Germany and Myers, seeks dismissal of the contract and
warranty claims against them. Doc. 21. BFM responded to that motion, but only as to EMSGermany and not as to Myers. Doc. 58. Myers plausibly argues that the contract and warranty
claims against it should be dismissed because it lacked privity with BFM. See Szajna, 503
N.E.2d at 764-65; Law Offices of Colleen M. McLaughlin, 963 N.E.2d at 975; IWOI, LLC, 581 F.
Supp. 2d at 1000-01. Accordingly, BFM’s contract and warranty claims against Myers are
dismissed with prejudice.
BFM does oppose dismissal of contact and warranty claims as to EMS-Germany. In
evaluating EMS-Germany’s motion to dismiss those claims, the court assumes the truth of the
complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d
630, 632 (7th Cir. 2012). The court must also consider “documents attached to the complaint,
documents that are critical to the complaint and referred to in it, and information that is subject to
proper judicial notice,” along with additional facts set forth in BFM’s brief opposing dismissal,
so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d
743, 745 n.1 (7th Cir. 2012).

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EMS-Germany argues that the complaint fails to state contract or warranty claims against
it because “[a]ll of Plaintiffs’ claims arise out of a contract between [them] and Defendant EMSUSA.” Doc. 21 at 1. EMS-Germany is correct that the complaint alleges a contract only
between BFM and EMS-USA, not between BFM and EMS-Germany. Doc. 1 at ¶¶ 13, 50; Doc.
1-1. In fact, the complaint’s primary reference to EMS-Germany is that “EMS-Germany
manufactured its doors in Germany and shipped them to EMS-USA for installation in the United
States.” Id. at ¶ 12. BFM contends, however, that even without privity of contract, EMSGermany’s status as EMS-USA’s “parent corporation” means it “can be held directly liable if
actively involved in the affairs of its subsidiary.” Doc. 58 at 1.
Neither the contract nor the parties address choice of law. Because the alleged breaches
of contract and warranty occurred in Illinois, and because Illinois is the forum State, the court
will apply Illinois law. See Kochert v. Adagen Med. Int’l, Inc., 491 F.3d 674, 677 (7th Cir. 2007)
(“Where the parties have not identified a conflict in state law, we will generally apply the law of
the forum state.”); McFarland v. Gen. Am. Life Ins. Co., 149 F.3d 583, 586 (7th Cir. 1998) (“The
operative rule is that when neither party raises a conflict of law issue in a diversity case, the
federal court simply applies the law of the state in which the federal court sits.”) (internal
quotation marks omitted); Gould v. Artisoft, Inc., 1 F.3d 544, 549 n.7 (7th Cir. 1993) (same). The
question whether EMS-Germany can be held liable in contract and warranty is governed by the
direct participant liability doctrine. As the Supreme Court of Illinois has explained:
[D]irect participant liability is a valid theory of recovery under Illinois law.
Where there is evidence sufficient to prove that a parent company mandated
an overall business and budgetary strategy and carried that strategy out by
its own specific direction or authorization, surpassing the control exercised
as a normal incident of ownership in disregard for the interests of the
subsidiary, that parent company could face liability. The key elements to
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the application of direct participant liability, then, are a parent’s specific
direction or authorization of the manner in which an activity is undertaken
and foreseeability. If a parent company specifically directs an activity,
where injury is foreseeable, that parent could be held liable. Similarly, if a
parent company mandates an overall course of action and then authorizes
the manner in which specific activities contributing to that course of action
are undertaken, it can be liable for foreseeable injuries. We again stress,
though, that allegations of mere budgetary mismanagement alone do not
give rise to the application of direct participant liability.
Forsythe v. Clark USA, Inc., 864 N.E.2d 227, 237 (Ill. 2007); see also Grady v. Ocwen Loan
Servicing, LLC, 2012 WL 929928, at *2 (N.D. Ill. Mar. 19, 2012). BFM’s invocation of the
direct participant liability doctrine against EMS-Germany fails for two separate reasons.
First, Illinois courts have applied the doctrine only in the tort context, not as to contract or
warranty claims. See Forsythe, 864 N.E.2d at 237-38 (adopting direct participant liability in a
tort case); Nelson v. Aurora Equipment Co., 909 N.E.2d 931, 935 (Ill. App. 2009) (“in Forsythe,
our supreme court recognized the theory of direct-participant liability to impose a duty on a
parent company for the negligent acts of its subsidiary”) (emphasis added); see also Phillips v.
WellPoint Inc., 2012 WL 6111405, at *10 (S.D. Ill. Dec. 10, 2012) (“The Phillips plaintiffs fail
to point to any Illinois authority applying the direct participant liability to a breach of contract
claim, and the Court is unable to find any such authority that would change its reasoning as set
forth in Cima.”), citing Cima v. WellPoint Health Networks, Inc., 556 F. Supp. 2d 901, 906 (S.D.
Ill. 2008) (finding “no merit in the plaintiffs’ theory of direct participant liability for breach of
contract,” and observing that “there is no authority from any Illinois state court employing the
direct participant doctrine to make a corporation that is not a signatory to a contract a de facto
party to the contract”). BFM does not cite any Illinois authority recognizing direct participant
liability for contract or warranty claims, and it gives no basis to conclude that Illinois law would

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apply the doctrine outside the tort context. BFM does cite Dassault Falcon Jet Corp. v.
Oberflex, Inc., 909 F. Supp. 345 (M.D.N.C. 1995), for the proposition that “under the theory of
direct participant liability, an action can be maintained against a parent company for breach of
warranty.” Doc. 58 at 1. But Dassault Falcon applied Arkansas law, not Illinois law. 909 F.
Supp. at 351-54. Moreover, the court’s holding rested not on the direct participant liability
doctrine, but rather on an aspect of Arkansas law allowing warranty claims to be brought against
defendants not in privity with the plaintiff. Id. at 351, 354.
The question becomes, then, whether this court should take it upon itself to expand direct
participant liability beyond the contours heretofore recognized by the Illinois courts. The
Seventh Circuit has repeatedly cautioned that “[w]hen we are faced with two opposing and
equally plausible interpretations of state law, we generally choose the narrower interpretation
which restricts liability, rather than the more expansive interpretation which creates substantially
more liability.” Home Valu, Inc. v. Pep Boys–Manny, Moe & Jack of Del., Inc., 213 F.3d 960,
963 (7th Cir. 2000); accord, e.g., Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 636 (7th Cir.
2007); S. Ill. Riverboat Casino Cruises, Inc. v. Triangle Insulation & Sheet Metal Co., 302 F.3d
667, 676 (7th Cir. 2002); Insolia v. Philip Morris Inc., 216 F.3d 596, 607 (7th Cir. 2000);
Birchler v. Gehl Co., 88 F.3d 518, 521 (7th Cir. 1996); Todd v. Societe Bic, S.A., 21 F.3d 1402,
1412 (7th Cir. 1994) (en banc). Therefore, even if the question were close under Illinois law, the
court would resolve the question in EMS-Germany’s favor and hold that direct participant
liability does not apply to contract and warranty claims.
Even if Illinois law recognized direct participant liability for contract and warranty
claims, BFM’s claims against EMS-Germany still would falter. The doctrine holds a parent

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corporation liable for its subsidiary’s wrongdoing only “where the parent directly participated in
the subsidiary’s unlawful actions.” Esmark, Inc. v. NLRB, 887 F.2d 739, 755 (7th Cir. 1989); see
also Forsythe, 864 N.E.2d at 237-38 (“the mere fact of a parent-subsidiary relationship, without a
great deal more, does not give rise to liability”) (citing United States v. Bestfoods, 524 U.S. 51,
61 (1998)); Nathan v. Morgan Stanley Renewable Dev. Fund, LLC, 2012 WL 1886440, at *10
(N.D. Ill. May 22, 2012) (direct participant liability exists only where a parent corporation
engages in actions “surpassing the control exercised as a normal incident of ownership”) (internal
quotation marks omitted). As noted above, “[t]he key elements to the application of direct
participant liability … are a parent’s specific direction or authorization of the manner in which an
activity is undertaken and foreseeability.” Forsythe, 864 N.E.2d at 237. “Thus, if a parent
company specifically directs an activity where injury is foreseeable, that parent could be held
liable. Similarly, if a parent company mandates an overall course of action and then authorizes
the manner in which specific activities contributing to that course of action are undertaken, it can
be liable for foreseeable injuries.” Santora v. Starwood Hotel & Resorts Worldwide, Inc., 2007
WL 3037098, at *6 (N.D. Ill. Oct. 16, 2007); see also Forsythe, 864 N.E.2d at 237 (same). A
parent corporation may be held liable for its subsidiary’s acts only when “the alleged wrong can
be traced to the parent through the conduit of its own personnel and management.” United States
v. All Meat & Poultry Prods. Stored at Lagrou Cold Storage, 470 F. Supp. 2d 823, 833 (N.D. Ill.
2007) (internal quotation marks omitted).
The complaint makes no allegations regarding the corporate relationship between EMSGermany and EMS-USA or about the level of control, if any, that EMS-Germany exerted over
EMS-USA’s procedures for installing the doors used in the Des Plaines facility. BFM’s response

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brief, which the court must consider on a Rule 12(b)(6) motion, states that “[o]n information and
belief, EMS Germany was and is actively involved in the affairs of its subsidiary and partner,
EMS-USA.” Doc. 58 at 2. BFM’s brief also attaches a November 2011 news article quoting
EMS-USA’s president as referring to EMS-Germany as “our mother company.” Id. at 4. These
meager facts do not come close to meeting the standard imposed by Illinois law for direct
participant liability. See Nathan, 2012 WL 1886440, at *10 (dismissing a direct participant
liability claim where the complaint failed to allege sufficient indicia of control relating to the
relevant activity); Holmes v. United Airlines, Inc., 2012 WL 245136, at *7 (N.D. Ill. Jan. 25,
2012) (same); Sefton v. Totoya Motor Sales U.S.A., 2010 WL 1506709, at *4 (N.D. Ill. Apr. 14,
2010) (same); Santora, 2007 WL 3037098, at *6 (dismissing a direct participant liability claim
because the complaint “fails to allege how the operating standards [promulgated by the parent
company] contributed in any way to his injury”).
The contract and warranty claims against EMS-Germany accordingly are dismissed. The
dismissal is with prejudice. Because direct participant liability does not apply to contract and
warranty claims, the flaw in those claims cannot be cured by repleading. See Gen. Elec. Capital
Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997) (“Even though Rule 15(a)
provides that ‘leave shall be freely given when justice so requires,’ a district court may deny
leave to amend for … futility. The opportunity to amend a complaint is futile if the complaint, as
amended, would fail to state a claim upon which relief could be granted.”) (citation and some
internal quotation marks omitted). And even if direct participant liability conceivably could
apply to contract and warranty claims, BFM’s opposition brief does not request an opportunity to
replead those claims against EMS-Germany. See James Cape & Sons Co. v. PCC Constr. Co.,

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453 F.3d 396, 400-01 (7th Cir. 2006) (rejecting the plaintiff’s argument that the district court
erred in dismissing its complaint with prejudice, rather than without prejudice and with leave to
amend, where the plaintiff did not request leave to amend).
*

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For the foregoing reasons, Count III is voluntarily dismissed without prejudice, LCC’s
claims are dismissed with prejudice, and the claims against Myers and EMS-Germany in Counts
I and II are dismissed with prejudice. The only remaining claims are those brought in Counts I
and II against EMS-USA. If BFM wishes to replead Count III against any defendant, it must first
seek leave of court; the court does not anticipate that leave will be granted, but the possibility
cannot be foreclosed at this point.

June 3, 2013
United States District Judge

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