McAllister v. Freixenet, Sonoma Inc.
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 5/15/2018: Freixenet USA's motion to dismiss 36 is denied in part, granted in part. Count III is dismissed without prejudice, but the other counts are not dismissed. Fre ixenet USA shall file an answer to the complaint by June 5, 2018, the parties shall confer on a proposed discovery schedule, and file a joint initial status report by June 5, 2018. A status hearing is set for June 13, 2018 at 9:30 a.m. [For further detail see attached order.] Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NATASHA MCALLISTER,
Plaintiff,
No. 17 CV 557
v.
FREIXENET USA, INC., FREIXENET, S.A.,
and UNKNOWN RETAIL STORE,
Judge Manish S. Shah
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Natasha McAllister was injured when a bottle of champagne
exploded and glass made contact with her eye. After initially naming another
entity, McAllister has amended her complaint to add defendants Freixenet USA,
Inc., and Freixenet, S.A. Freixenet USA moves to dismiss McAllister’s claims
against it for the failure to state a claim. For the reasons stated below, the motion is
denied in part, granted in part.
I.
Legal Standards
A complaint must contain factual allegations that plausibly suggest a right to
relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). I must accept as true all of the
facts alleged in the complaint and draw reasonable inferences from those facts in
plaintiffs’ favor, but I am not required to accept as true the complaint’s legal
conclusions. Id. at 678–79. In considering a motion to dismiss, I am limited to
reviewing the complaint, “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.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019–
20 (7th Cir. 2013) (citation omitted).
II.
Facts
On February 9, 2015, plaintiff Natasha McAllister received a gift—a bottle of
champagne. [29] ¶ 4.1 Whoever purchased it bought it at an unknown local grocery
store. [29] ¶ 4. The bottle was marketed, sold, and/or distributed by defendants
Freixenet USA and Freixenet, S.A. [29] ¶¶ 10, 34. When McAllister tried to open
the champagne, the bottle exploded. [29] ¶ 5. Some of the glass made contact with
McAllister’s eye, causing severe injuries that required hospitalization and surgery.
[29] ¶¶ 5–7.
McAllister initially brought suit against Freixenet Sonoma Caves, Inc., and
the unknown retail store. [1]. Freixenet Sonoma Caves moved to dismiss the
complaint and noted that McAllister had sued the wrong entity—she should have
sued the parties listed on the label of the bottle, producer Freixenet, S.A., and
importer Freixenet USA. [15] at 3. The motion was granted in part on other
grounds, and McAllister was granted leave to amend her complaint. See [23]; [28].
McAllister’s amended complaint removed Freixenet Sonoma Caves as a defendant
and added in its stead Freixenet USA and Freixenet, S.A. [29].2
Bracketed numbers refer to docket numbers on the district court docket. Page numbers
are taken from the CM/ECF header at the top of filings.
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2
Freixenet, S.A. has yet to be served or appear in this case.
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III.
Analysis
A.
Relation Back
Freixenet USA argues that McAllister’s claims against it are untimely. Its
reasoning is that McAllister’s claims began to accrue on February 9, 2015, when she
alleges the champagne bottle exploded, [29] ¶ 5, and the statute of limitations for
her claims is two years. See 735 ILCS 5/13-202. But since Freixenet USA was not
added as a defendant to McAllister’s complaint until the amendment on August 29,
2017, [29], Freixenet USA argues that McAllister’s claims are too late. So the
question is whether McAllister’s amended complaint relates back to the date of her
original complaint.
Freixenet USA’s main argument is that McAllister should have properly
identified the proper parties long ago—their names were written right on the
allegedly defective bottle. But relation back depends on “what the prospective
defendant knew or should have known during the Rule 4(m) period, not what the
plaintiff knew or should have known at the time of filing her original complaint.”
Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 548 (2010) (emphasis in original).3
The only two inquiries relevant to determining whether an amended complaint
relates back to the date of the original are (1) “whether the defendant who is sought
Cases generally assume that state law governs relation back, although the Seventh
Circuit has not expressly decided the issue. See Springman v. AIG Mktg., Inc., 523 F.3d
685, 687–88 (7th Cir. 2008). Anyway, “Illinois’s relation-back rule is identical to the federal
rule.” Id.; compare Fed. R. Civ. P. 15(c)(1)(C), with 735 ILCS 5/2-616(d). Illinois courts rely
on Krupski to analyze the Illinois relation-back statute. See Owens v. VHS Acquisition
Subsidiary No. 3, Inc., 78 N.E.3d 470, 479 (Ill. App. Ct. 2017) (“Given the similarity
between the federal rule and section 2-616(d), most Illinois courts analyzing section 2616(d) have relied on this case in interpreting the state statute.”).
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to be added by the amendment knew or should have known that the plaintiff, had it
not been for a mistake, would have sued him instead or in addition to suing the
named defendant” and (2) whether “the delay in the plaintiff’s discovering his
mistake impaired the new defendant’s ability to defend himself.” Joseph v. Elan
Motorsports Techs. Racing Corp., 638 F.3d 555, 559–60 (7th Cir. 2011).
Freixenet USA should have known that McAllister meant to sue it. The
registered agent who was served for Freixenet Sonoma Caves is the same person
who later was served (at the same address) for Freixenet USA, [42-1],4 and once
Freixenet USA was added to the suit, it retained the same counsel that had been
representing Freixenet Sonoma Caves. See Krupski, 560 U.S. at 544–45 (noting that
the added defendant was represented by the same counsel as the original
defendant). The fact that the confused parties are “related corporate entities with
very similar names” serves to “heighten the expectation that [Freixenet USA]
should suspect a mistake has been made when [Freixenet Sonoma Caves] is named
in a complaint that actually describes [Freixenet USA’s] activities.” Id. at 556. See
also Joseph, 638 F.3d at 560. McAllister’s original complaint described Freixenet
Sonoma Caves as an entity that “designed, licensed, tested, manufactured,
marketed, distributed, sold and/or introduced into interstate commerce, either
directly or indirectly through third parties or related entities, the champagne bottle
in question.” [1] ¶ 4. Freixenet USA should have known by that description that
McAllister attached copies of the summons to her response brief. [42-1]. They appear to be
accurate (and correspond to the summons dates listed on the docket), and Freixenet USA
has not contested their accuracy. I take judicial notice of them. See Parungao v. Cmty.
Health Sys., Inc., 858 F.3d 452, 457 (7th Cir. 2017).
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McAllister meant to sue it, the distributor of the champagne bottle. See Krupski,
560 U.S. at 554–55.
Freixenet USA points to the fact that “[m]aking a deliberate choice to sue one
party over another while understanding the factual and legal differences between
the two parties may be the antithesis of making a mistake” and therefore does not
allow for relation back. Id. at 549.5 But there is nothing in the record to suggest that
initially naming Freixenet Sonoma Caves was a deliberate litigation tactic. To the
contrary, after Freixenet Sonoma Caves argued in its motion to dismiss that it was
not the proper entity to sue, [15], McAllister asked to amend her complaint if she
sued the wrong party. [21] at 3. This approach does not suggest that McAllister
must have known that Freixenet USA was the right party to sue because of the
bottle’s label, and that the decision to sue Freixenet Sonoma Caves was therefore a
deliberate choice. “[T]hat [McAllister] may have known the contents of the [bottle’s
label] does not foreclose the possibility that she nonetheless misunderstood crucial
facts regarding the two companies’ identities” Krupski, 560 U.S. at 555. Absent
evidence to the contrary, Freixenet USA should have known it was a mistake. Nor
has Freixenet USA made any argument or showing of prejudice. See Joseph, 638
Freixenet USA outlines the distinction between a misnomer—“in which the plaintiff has
the wrong name of the right party”—and a mistake, arguing that only misnomers can relate
back. [37] at 5. An Illinois statute, 735 ILCS 5/2-401(b), does allow misnomers (not
mistakes) to be corrected at any time, but that statute does not prohibit relation back from
applying to mistakes. To the contrary, the relation-back rule applies to mistakes as well as
misnomers. See Krupski, 560 U.S. 538 (applying Rule 15(c)(1)(C) to a mistake, not a
misnomer); Ham v. Sterling Emergency Servs. of the Midwest, Inc., 575 F.App’x 610, 616 n.5
(6th Cir. 2014) (“[Rule 15(c)(1)(C)] applies to more than merely correcting misnomers . . .
The Rule’s text alone makes that clear.”).
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F.3d at 560 (“[C]arelessness is no longer a ground independent of prejudice for
refusing to allow relation back.).6
B.
Counts I and II: Negligence and Strict Liability
Freixenet USA also briefly argues that McAllister’s negligence and strict
liability claims are insufficiently pleaded. Freixenet USA does not point to any
particular elements that are insufficiently pleaded, but rather asserts that
McAllister “is attempting to quickly throw out the same generic and baseless ‘facts’
against the wall in hopes that something may stick” and therefore the complaint
lacks necessary detail. [37] at 8. A Rule 12(b)(6) motion is not a proper time for me
to determine whether the facts pleaded in McAllister’s complaint are baseless, and
McAllister “is not required to include ‘detailed factual allegations,’ just “sufficient
detail ‘to present a story that holds together.’” Alexander v. United States, 721 F.3d
418, 422 (7th Cir. 2013) (citation omitted).
“To state a cause of action for negligence under Illinois law, a plaintiff must
establish the existence of a duty, the defendant’s breach of that duty, and that the
breach proximately caused the plaintiff’s resulting injuries.” Roh v. Starbucks
Corp., 881 F.3d 969, 973 (7th Cir. 2018). To determine whether a duty exists, courts
consider “(1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3)
the magnitude of the burden of guarding against injury; and (4) the consequences of
placing that burden on the defendant.” Dunn v. Menard, Inc., 880 F.3d 899, 906 (7th
Freixenet USA also notes that when I dismissed McAllister’s earlier complaint, I
expressed a view that relation back would not apply to an amended complaint naming new
parties. With the benefit of full briefing on the issue, I changed my mind.
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Cir. 2018) (citation omitted). McAllister alleges that Freixenet USA was the
“distributor, seller and/or supplier” of a champagne bottle that unexpectedly
shattered, resulting in glass shrouds hitting her eye and severely injuring her. [29]
¶¶ 5–7, 10. She also alleges that Freixenet USA knew or should have known that
the bottle posed a serious risk of harm. [29] ¶ 14. At this point, particularly without
argument from Freixenet USA that a duty does not exist under such circumstances,
these allegations plausibly state a negligence claim.
“[T]o recover in a strict product liability action, a plaintiff must plead and
prove that the injury complained of resulted from a condition of the product, that
the condition was unreasonably dangerous, and that it existed at the time the
product left the manufacturer’s control.” Mikolajczyk v. Ford Motor Co., 231 Ill.2d
516, 525 (2008). A product may be unreasonably dangerous based on a physical
defect in the product, a design defect, or the manufacturer’s failure to warn of the
danger. Id. McAllister’s allegations include that the bottle was defective at the time
it was sold and that Freixenet USA did not warn her of the unreasonable danger.
[29] ¶¶ 20–21. This is sufficient to state a plausible strict liability claim.
C.
Count III: Implied Warranty
McAllister indicated in her response brief that she is voluntarily dismissing
her breach of implied warranty claim against Freixenet USA. [42] at 2. That claim
is dismissed without prejudice.
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IV.
Conclusion
Freixenet USA’s motion to dismiss [36] is denied in part, granted in part.
Count III is dismissed without prejudice, but the other counts are not dismissed.
Freixenet USA shall file an answer to the complaint by June 5, 2018, the parties
shall confer on a proposed discovery schedule, and file a joint initial status report by
June 5, 2018. A status hearing is set for June 13, 2018 at 9:30 a.m.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: May 15, 2018
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