Opinion
Case No. 00 C 2436
April 27, 2001
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant's Motions (1) to Dismiss Plaintiffs' Count II pursuant to FED.R.CIV.P.12(b)(6), (2) to Dismiss Plaintiffs' Count III pursuant to FED.R.CIV.P.37(d), and (3) to Dismiss Plaintiff Cori Maglione pursuant to FED.R.CIV.P.37(d). For the reasons stated herein, Defendant's Motions to Dismiss are DENIED.
FACTUAL BACKGROUND
Plaintiffs have filed a three-count Second Amended Complaint against Cottrel, alleging (I) negligence, (II) willful and wanton conduct, and (III) loss of consortium.
Plaintiffs' Count II alleges that Defendant Cottrell was guilty of one or more of the following willful and wanton acts of misconduct:
a) sold a car-hauler of which it had actual knowledge had insufficient foot and handholds to maintain a three point stance;
b) sold a car-hauler without necessary safety devices of which it actually knew had been developed by both competitors and customers;
c) committed other acts of willful and wanton misconduct relative to the aforementioned design and manufacture and sale of car-haulers.
Count II further alleges that as a "direct and proximate result of one or more of the foregoing acts . . . Plaintiff Mario Maglione was caused to fall from the upper deck of the car hauler" and "has been seriously and permanently injured." Furthermore, as of the date on which Defendant, Cottrell, Inc., originally sold the aforementioned car-hauler, Defendant, Cottrell, Inc., . . . has actual knowledge that:
many operators of car-haulers had fallen from the upper decks of car-haulers due to lack of safety devices such as hand rails; other manufacturers of car-haulers either have designed hand rails for the upper decks or were in the process of designing them; a worker could not properly maintain a three-point stance when placing cars on the upper decks of the cs-11 car-hauler; and many persons had recommended that hand rails be incorporated into the upper decks of the car-haulers.
Plaintiffs seek punitive damages for this allegedly willful and wanton conduct.
Plaintiffs' Count III alleges that as "a result of the aforesaid injuries to Mario Maglione, Plaintiff Cori Maglione was deprived of the service, society, affection, and consortium of Plaintiff Mario Maglione."
Plaintiff Cori Maglione was originally scheduled to be deposed on November 27, 2000. She failed to appear for the deposition. The deposition was rescheduled for December 4, 2000 by agreement of the parties. Although Mario Maglione appeared, Cori Maglione did not.
LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. In ruling on a motion to dismiss, a court must construe the complaint's allegations in the light most favorable to the plaintiff, and all well-pleaded facts and allegations in the plaintiffs complaint must be taken as true. Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).
DISCUSSION
Defendant has moved to dismiss Count 11 pursuant to FED.R.CIV.P.12 (b)(6) and Plaintiff Cori Maglione and Count III pursuant to FED.R.CIV.P.37(d).
FED.R.CIV.P.12(b)(6)Defendant has moved to dismiss Count II of Plaintiffs' complaint alleging willful and wanton conduct for its failure to comply with FED.R.CIV.P.9(g). 9(g) states that "[w]hen items of special damages are claimed, they shall be specifically stated." Defendant contends that Plaintiffs' punitive damages request in Count II constituted "special damages", which triggered the 9(g) pleading requirement. In support of its argument, Defendant cites a federal case from the Southern District of Florida, Teel v. United Technologies Pratt Whitney, 953 F. Supp. 1534 (S.D. FL 1997). However, Defendant fails to support this proposition with authority from this Circuit. The one Court in this District to consider whether 9(g) applied to claims for punitive damages concluded that it did not. Boykin v. Golden Rule Insurance Co., 1988 WL 107363 (N.D. Ill.)(Williams, 3.) (contention that 9(g) applies to claim for punitive damages "is without merit").
Furthermore, a review of Seventh Circuit case law reveals that punitive damages are distinct from special damages. In Neal v. Honeywell Inc., 191 F.3d 827, 830 (7th Cir. 1999), the Seventh Circuit explained the meaning of "special damages." It stated:
But what exactly are special damages? The phrase is an old one: " Special, as contradistinguished from general damage, is that which is the natural, but not the necessary, consequences of the act complained of." Whether a particular kind of injury gives rise to "special" damages thus depends on the tort committed. The usual consequences of a wrong are "general" damages, and unusual consequences are "special."
In short, special damages are a type of consequential or compensatory damages. Compensatory damages (and consequently special damages) are entirely distinct from punitive damages, which are intended solely to punish the defendant or stand as an example for similar wrongdoers. See Brown Williamson Tobacco Corp. v. Jacobson CBS, Inc., 827 F.2d 1119, 1137 (7th Cir. 1987)("The purpose of punitive damages, of course, is to punish the defendant for the improper conduct and to deter him from any future transgressions."). FED.R.CIV.P.9(g) does not govern Plaintiffs' claim for punitive damages since punitive damages are not special damages. Defendant's Motion to Dismiss Count II is DENIED.
FED.R.CIV.P.37(d)Defendant has moved to Dismiss Count 111 and Cori Maglione pursuant to FED.R.CIV.P.37(d) because Cori Maglione has twice failed to appear for a deposition. FED.R.CIV.P.37(d) states in relevant part:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just . . .
Defendant Cottrell further cites Newman v. Metropolitan Pier Exposition Authority, 962 F.2d 589 (7th Cir. 1992) and Halas v. Consumer Services Inc., 16 F.3d 161 (7th Cir. 1994), in support of its Motion.
In Halas, the Seventh Circuit affirmed a District Court's decision to dismiss a case after the plaintiff failed to attend a deposition and ignored a Court order. In Newman, the Seventh Circuit affirmed a District Court's dismissal of a case after a plaintiff failed to appear for a deposition four times. The Seventh Circuit stated:
A plaintiffs failure to comply with discovery orders is properly sanctioned by dismissal of the suit, a defendant's by entry of a default judgment. of course the circumstances of the failure must be considered, because the judge must be guided by the norm of proportionality that guides all judicial applications of sanctions. If the failure is inadvertent, isolated, no worse than careless, and not a cause of serious inconvenience either to the adverse party or to the judge or to any third parties, dismissal . . . would be an excessively severe sanction. But as soon as a pattern of noncompliance with the court's discovery orders emerges, the judge is entitled to act with swift action.
Dismissal of Cori Maglione and Count III would be premature at this time. Con Maglione has not yet disobeyed an explicit court order in failing to appear. However, should Con Maglione again fail to appear, this will not be the case. Con Maglione is hereby ordered to appear for a deposition to be concluded no later than May 14, 2001. Discovery is held open until May 14, 2001 for the limited purpose of taking Con Maglione's deposition.
CONCLUSION
For the reasons set forth above, Defendant's Motions to Dismiss Count II, Count III, and Con Maglione as a party are DENIED. Con Maglione is hereby ordered to appear for a deposition to be concluded no later than May 14, 2001. Discovery shall continue to May 14, 2001 for the limited purpose of taking Con Maglione's deposition.
IT IS SO ORDERED.