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In re Shigellosis Litigation6/18/2002
nowledge of the defect. Id. at subd. 3(a-c); Gorath v. Rockwell Int'l, Inc., 441 N.W.2d 128, 131-32 (Minn. App. 1989), review denied (Minn. July 27, 1989). The seller's-exception statute sets forth a specific procedure:
Subd. 2. Once the plaintiff has filed a complaint against a manufacturer and the manufacturer has or is required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant, provided the certifying defendant [did not exercise significant control over the manufacture of the product, did not provide warnings or instructions to the manufacturer, did not have actual knowledge of the defect or create the defect]. Due diligence shall be exercised by the certifying defendant in providing the plaintiff with the correct identity of the manufacturer and due diligence shall be exercised by the plaintiff in filing a lawsuit and obtaining jurisdiction over the manufacturer. Minn. Stat. § 544.41, subd. 2.
A motion to dismiss under the seller's exception is comparable to a rule 12(b) motion to dismiss for failure to state a cause of action. Indeck Power Equip. Co. v. Jefferson Smurfit Corp., 881 F. Supp. 338, 342 (N.D. Ill. 1995). The strict-liability claim can be reinstated against the seller at any time the injured party cannot maintain an action against the manufacturer because the manufacturer no longer exists, is insolvent, is not subject to jurisdiction, or cannot be sued. Minn. Stat. § 544.41, subd. 2.
Bix moved for dismissal of strict-liability claims against it based on subdivision 2 of the seller's-exception statute while certifying that Grupo Pas was the parsley manufacturer. In its motion papers, Bix claimed that the seller's-exception statute requires only that the manufacturer be identified, not joined. We disagree. The plain language of the seller's-exception statute requires that the identified manufacturer be served with process prior to dismissal of strict-liability claims against the passive seller. Id. at subd. 2. And it further requires that, before dismissal, the manufacturer must have responded or have the obligation to respond. Dismissal is not appropriate if the plaintiff's action cannot reach a manufacturer or the manufacturer is insolvent. Bastian v. Wausau Homes, Inc., 638 F. Supp. 1325, 1327 (N.D. Ill. 1986) (applying similar Illinois statute). The evident purpose of the seller's-exception statute is to ensure the manufacturer can be joined in the lawsuit before the passive sellers are dismissed from strict-liability claims.
None of the parties to the litigation joined or made any attempt to join the alleged manufacturer, Grupo Pas. In some circumstances, it may be within the court's discretion to dismiss before completion of these procedures; for instance, when a plaintiff fails to demonstrate due diligence in filing a complaint against the certified manufacturer. Minn. Stat. § 544.41, subd. 2. But the record does not indicate that this occurred. Horse & Hunt was not the plaintiff in the product-liability action, it was a defendant. Furthermore, the district court granted leave to Sunridge, not Horse & Hunt, to initiate a complaint against the manufacturer. In this case, it was error to dismiss the strict-liability claim against Bix through summary judgment when the alleged manufacturer certified by Bix was not served or joined in the litigation.
In granting summary judgment for Bix, the district court reasoned that dismissal was appropriate under the seller's-exception statute because one of the co-defendants, Horse & Hunt, alleged that Sunridge, who was already joined in the litigation, had exercised sufficient control over the pa
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