-4-
applies, Moerman bars Count II. Therefore, defendant’s motion to

dismiss Count II of the complaint is granted.!

DATE: June 25, 2003

wn AS.

John A ady, United States Disfri Judge

In the last sentence of the Response, plaintiff requests “leave to re-
plead Count II to state a claim for rescission under Illinois law predicated on
Heidelberg’s breach of its contractual warranties to Chicago Printing.” If
plaintiff does indeed wish to amend the complaint, it should file an appropriate
motion.



-3-

Rather than relying on the “law of the case,” we have
considered the merits of plaintiff’s argument. We believe that
many of the cases relied upon by plaintiff (in the Response at 10-
12) are distinguishable because they involved claims for breach of
contract (which plaintiff does not allege here), and/or they
involved tort claims other than negligent misrepresentation. More
importantly, a closer review of the cases reveals that the real
question is whether the tort claim at issue requires interpretation
of the contract (put another way, whether it arises independently
from the contract), rather than the more vague question of whether
the tort claim is “related” or “connected” to the contractual
relationship. See Boatwright v. Delott, 642 N.E.2d 875, 877 (Ill.
App. Ct. 1994) (“[{Florum selection clauses apply to tort claims
which require interpretation of the contract.”); Mellon Bank, N.A.
w.Miglin, No. 92 C 4059, 1995 WL 230492, at *7 (N.D. Ill. Jan. 10,
1995).

As stated in our earlier opinion, plaintiff’s negligent
misrepresentation claim (as well as its claim for fraudulent
inducement) stems from events that occurred prior to the execution
of the contract. The tort claims do not require us to interpret
the contract and therefore do not arise out of the contract.
Accordingly, the Georgia choice-of-law provision in the contract
does not apply; rather, Illinois law applies, as set forth in our

earlier opinion. Plaintiff does not contest that if Illinois law



Mirae Order Form (06/97)

United States District Court, Northern District of Illinois

Sitting Judge if Other
va Magutrue Judge John F. Grady than Aasived Sedge
CASE NUMBER 01 C 3251 DATE June 25 , 2003
CASE Chicago Printing Co. v. Heidelberg USA, Inc.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state brief
nature of the motion being presented.)

MOTION:
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due.
(3) o Answer brief to motion due___. Reply to answer brief due__.
(4) oO Ruling/Hearing on ____ssetfor_____—at
(5) o Status hearing{held/continued to] [set for/re-set for]on___—_s set for at
(6) a Pretrial conferencefheld/continued to] [set for/re-set for])on__——ssetfor_— at.
qQ) a Trial[set for/re-set for]on__—at_—
(8) a {Bench/Jury trial] [Hearing] held/continued to__at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QO FRCP4(m) OGeneral Rule2i O FRCP41(a)(1) © FRCP41(a)(2).
(10) | (Other docket entry] Defendant’s motion to dismiss Count II of t

complaint [47-1] is granted. ENTER MEMORANDUM OPINION AND ORDER.

dai x (For further detail see order (on reverse side of/attached to) the original minute order.)
No notices required, advised in open court: q Document
No notices required. ‘ umber of notices % Near:
X_ | Notices mailed by judge’s staff.
2.
Notified counsel by telephone. #809 Jo1s1siq Si IN; cy
Docketing to mail notices. ae 919 -
Mait AO 450 form. LEH Rd 92 Nar eu fobs ‘
Copy to
Or 03-03 114 date mailed notice
courtroom
KAM deputy’s KAM
intciale Date/time received in
central Clerk's Office railing deputy initials



01-3251.012 June 25, 2003

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

CHICAGO PRINTING COMPANY, JUN 27 2003

an Illinois corporation,
Plaintiff,
No. 01 C 3251

Vv.

HEIDELBERG USA, INC.,
a Delaware corporation,

Defendant.

INT: IRD:

The court has under advisement the motion of the defendant to
dismiss Count II of the first amended complaint. The ground of the
motion is that Count II is governed by the rule announced in
Moorman Manufacturing Co. v. National Tank Co., 435 N.E.2d 443
(Ill. 1982), that there can be no recovery for purely economic loss
based on negligent misrepresentation unless the defendant “is in
the business of supplying information for the guidance of others in
their business transactions.” Id, at 452. Plaintiff responds that
the point has been waived by the defendant’s failure to raise it
earlier. We reject this argument because it would be inappropriate
to allow recovery on a theory that is specifically rejected by
Illinois law, if Illinois law governs the case. We will therefore

consider defendant’s motion on its merits.


-2+

Moorman would clearly bar Count II if Illinois law applies,
and plaintiff does not argue otherwise. Instead, plaintiff
contends that Georgia law applies, by virtue of the choice-of-law
provision in the contract. Georgia permits recovery for negligent
misrepresentation, whether or not the defendant is in the business
of supplying information to others, provided the defendant has “a
pecuniary interest” in the transaction concerning which he supplies
the information. Robert & . Asso v. Rhodes-Haver P’ ship,
300 S.E.2d 503, 504 (Ga. 1977).

In our opinion of September 17, 2001, ruling on a motion to
dismiss the fraud claim in Count I, we held that Illinois law
applies because the contractual choice-of-law provision does not
govern pre-contractual fraudulent misrepresentations. We looked to
the conflicts law of Illinois and held that Illinois substantive
law applies because Illinois had the most significant contacts to
the transaction.

Plaintiff argues that we should reconsider that ruling in
light of cases holding that, under Illinois law, a choice-of-law
provision governs where claims arising out of pre-contractual
matters are “closely related to” or “intimately connected with” the
parties’ contractual relationship. Defendant does not attempt to
distinguish the cases cited by plaintiff, but argues that we should

adhere to our earlier ruling as “the law of the case.”