equitable remedy by piercing the corporate veil surrounding Cape, which is not a party to this action, by allowing this action against its dissolved subsidiary, NAAC. Specifically, Lake argues that NAAC's dissolution should be disregarded and its remaining assets recognized as assets of Cape for the purposes of satisfying the claims of plaintiffs and co-defendants. Lake requests that NAAC be retained as a party, recognizing it as the alter ego of Cape, and treating the NAAC liquidating trust as the property of Cape for the purpose of satisfying judgments. Granting NAAC's motion to dismiss, it argues, will "exalt form over substance, result in serious injustice to all other parties in these actions, and sanction the possible fraud committed by Cape." Accordingly, Lake requests that NAAC's motion be denied and it be permitted to pursue its theory against NAAC and Cape.
I am unpersuaded, however, that Illinois law would permit NAAC, a dissolved corporation without capacity to be sued, to stand in the place of its putatively culpable parent, who has not been named as a party. A corporation exists only under the laws of the state of its incorporation. Accordingly, the right to sue a corporation is limited by legislative mandate. The mandate set out in section 94 is clear: once the two-year period following dissolution of the corporation has ended, the corporation cannot sue or be sued. Blankenship v. Demmler Mfg. Co., 89 Ill. App.3d 569, 411 N.E.2d 1153, 1156, 44 Ill. Dec. 787 (1980). Illinois courts have taken the position that they have neither the power nor the desire to nullify the plain and wholesome provisions of section 94. O'Neill v. Continental Illinois Co., supra, at 136.
In Edwards v. Chicago & Northwestern Ry. Co., 79 Ill. App.2d 48, 223 N.E.2d 163 (1967), the court was presented with a situation similar to this case. The plaintiffs in Edwards sued both a dissolved subsidiary and its parent corporation for injuries they allegedly sustained by the acts of the subsidiary. Plaintiffs' amended complaint alleged that the subsidiary was the alter ego of the parent and requested that the court pierce the corporate veil to enable them to recover for their damages. The court held that because the complaint stated a claim against the parent corporation, the trial court improperly dismissed the complaint against it. The court affirmed, however, the trial court's dismissal of the complaint against the subsidiary because it had been dissolved more than two years prior to the commencement of the action. Likewise, if Cape were a party to this action, plaintiffs and Lake would be permitted to pursue their theory that NAAC was the alter ego of Cape. Cape is not a party to this action, however, and Lake has not demonstrated that it would be permissible under Illinois law to require that NAAC remain a party to this action in the place of Cape under the circumstances of this case.
Accordingly, NAAC's motion for reconsideration will be granted. An appropriate order follows.
NOW, September 21, 1983, upon consideration of the motion of North American Asbestos Corporation for reconsideration of my order of March 2, 1983 denying North American Asbestos Corporation's motion to dismiss for lack of capacity with leave to renew at trial, memoranda submitted by the parties, and for the reasons stated in the accompanying memorandum, IT IS ORDERED that
1. My order of March 2, 1983, entered March 3, 1983, is VACATED.
2. The motion to dismiss for lack of capacity is GRANTED.
3. All claims against North American Asbestos Corporation are DISMISSED.
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