Illinois citizens. They also either knew, or should reasonably
have expected, that their interference with the investigation
in Dixon would keep the cars in Illinois commerce even longer
and cause even more harm to Lightner. Accordingly, in personam
jurisdiction presently exists in this case as to St. Louis
F.B.I. Agent Jones and Assistant U.S. Attorney White.
As to Attorney General Smith, this court feels that his
involvement has not been sufficiently shown. It is conceivable
that a local Assistant U.S. Attorney may be involved in an
undercover F.B.I. investigation.*fn3 The Attorney General of
the United States, however, is unlikely to be personally
involved in such a scheme. The Supreme Court cautions against
allowing "insubstantial lawsuits" against high public
officials such as Attorney General Smith to proceed to trial.
Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 2911, 57
L.Ed.2d 895 (1978). The lower courts are to be alert to the
possibilities of "artful pleading." Id. Lightner's bald
allegations against Smith of "knowledge" and "participation"
amount to such a situation and the complaint against Smith is
therefore dismissed. Should discovery reveal his actual
personal involvement, the complaint may be amended to add him
as a defendant.
The federal defendants assert that regardless of whether
this court has jurisdiction over this case, venue is improper
and the matter should either be dismissed or transferred to
the Eastern District of Missouri.
A. Proper Venue
The venue provisions of 28 U.S.C. § 1391(b) apply to actions
for money damages brought against federal officials in their
individual capacities.*fn4 Stafford v. Briggs, 444 U.S. 527,
544-45, 100 S.Ct. 774, 784-85, 63 L.Ed.2d 1 (1980). Section
1391(b) provides that venue is proper "in the judicial district
where all defendants reside, or in which the claim arose."
Lightner makes no argument that the federal defendants reside
in Illinois. Indeed, the two remaining federal defendants,
Jones and White, both reside in the Eastern District of
Missouri and venue would therefore be proper there. The
conflict thus is whether this "claim arose" at Lightner's
dealership in the Northern District of Illinois, or in the
Eastern District of Missouri where the defendants acted.
Lightner's assertion that the claim arose in this district
finds support in Stafford, supra, 444 U.S. 527, 100 S.Ct. 774,
63 L.Ed.2d 1. Driver v. Helms, 577 F.2d 147 (1st Cir. 1978) was
one of the two cases consolidated for review in Stafford. In
Driver, various plaintiffs had brought suit against William
Colby, then Director of the CIA, and certain other federal
officials. The plaintiffs charged that their mail had been
tampered with in violation of the Constitution. All of the
alleged tampering took place in New York City. In determining
proper venue under § 1391(b), the Supreme Court stated:
As to petitioner Colby, the proper venue would
have been the Eastern District of New York
where the alleged claim arose, or perhaps the
Eastern District of Virginia, where some acts may
have occurred at the headquarters of the CIA."
Stafford, supra, 444 U.S. at 544 n. 11, 100 S.Ct. at 785 n. 11
(emphasis added). Colby was not alleged to have personally
tampered with the mail in New York, he was merely charged with
having directed these allegedly unconstitutional activities
from CIA headquarters in Virginia. Thus, the Supreme Court
viewed where the "claim arose" as meaning the place where the
allegedly unconstitutional activities physically
occurred and only possibly as the place from which these
activities were orchestrated.
In the instant case, like Director Colby in Driver, the
federal defendants are charged with having orchestrated a
scheme from a location different from where the physical
constitutional violation — the taking of Lightner's property
in violation of due process and its associated business harms
— is alleged to have occurred. Based on the Supreme Court's
interpretation, Lightner's "claim arose" in the Northern
District of Illinois, the District in which he was physically
deprived of property, and perhaps in the Eastern District of
Missouri where some of the federal defendants' acts occurred.
Under § 1391(b), then, venue is proper in this district. See
also Patmore v. Carlson, 392 F. Supp. 737 (E.D.Ill. 1975) (cause
of action for monetary relief "arose" against prison director,
who controlled prison procedures from outside federal judicial
district in which prison was located, in the prison district
where the unconstitutional deprivations had physically taken
The federal defendants' reliance on Leroy v. Great Western
United Corp., 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464
(1979), is misplaced. The Court in Leroy merely refused to
equate "the district in which the claim arose" with the
district where the impact was felt. Here, the Northern District
of Illinois is the locus for more than just where Lightner felt
the impact of the federal defendants' acts. This is the
district where the vehicles were allegedly seized in violation
of due process; it is the district where the physical
constitutional violation took place. Venue is therefore proper
B. Transfer of Venue
The federal defendants also urge that even if venue is
proper before this court, 28 U.S.C. § 1404(a) mandates transfer
to the Eastern District of Missouri. Section 1404(a) provides
that for the "convenience of parties and witnesses" and "in the
interest of justice" a district court may transfer a civil
action to another district where it might have been brought.
This court is not convinced that transfer is appropriate in
The federal defendants argue that Chicago, Rock Island, and
Pacific R.R. v. Igoe, 220 F.2d 299 (7th Cir.) (en banc), cert.
denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955),
mandates a transfer of venue. Igoe listed factors to be
considered by a district court when faced with a transfer
request under Section 1404(a). The factors to be considered
are: the convenience of witnesses of both parties; the ease of
access to sources of proof; the availability of compulsory
process to compel the attendance of unwilling witnesses; the
smaller amount of expense required for willing witnesses; the
availability of a view of the premises; and, the state of the
court calendar both in the District where the case is pending,
and in the District to which it is sought to have the case
transferred. Igoe, supra, 220 F.2d at 303. Simply stated, the
federal defendants' position is that these factors weigh in
their favor and require transfer.
First, this court is not convinced that the balance of
witnesses favors trial in Missouri. It appears that some
events occurred in Missouri and some occurred in Illinois.
There may be witnesses from Missouri, but there will also be
numerous witnesses from Illinois. Indeed, Lightner's witnesses
with respect to damages could conceivably all be in Illinois.
There is, therefore, no clear advantage concerning witness
convenience, access to proof, compulsory process, or saved
travel expense in either location. There seems to be no reason
for a "view of the premises" here. Finally, as to scheduling,
the calendar of this court is not so congested as to preclude
an orderly progression of this case.
The plaintiff's choice of forum, if proper, should rarely be
disturbed. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct.
252, 265, 70 L.Ed.2d 419 (1981). Since there is no clear
advantage to a trial in either location and venue is proper in
the Northern District of Illinois, Western Division, this court
will defer to Lightner's choice of forum.
In a suit against government officials such as the present
federal defendants, the issue of official immunity must be
addressed. Where the federal official enjoys absolute
immunity, this will act as a bar against suit. In situations
where the federal official enjoys only a qualified immunity,
certain elements of good faith must be shown for the immunity
to bar suit.
In the instant case, the federal defendants claim absolute
immunity from suit with respect to the malicious interference
with business and invasion of privacy claims set forth in
Counts V and VI, respectively. As to the due process and
racketeering violations alleged in Counts III, IV and VII,
these defendants assert only that their activities were all
undertaken in good faith as part of a "bona fide" F.B.I.
undercover investigation. This impliedly raises the defense of
qualified immunity. A proper disposition of the federal
defendants' instant motion to dismiss all counts must therefore
be based on whether immunity bars this action.
A. Qualified Immunity
Prior to the Supreme Court's decision in Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the exact
scope of a federal officials immunity from suit was unclear.
The Court in Butz established a qualified immunity for
government officials performing discretionary functions. Id. at
504, 98 S.Ct. at 2909. Such an immunity was thought necessary
to assure that the actions of these government officials would
not be overly checked by the potentially disabling threat of
suit. Absolute immunity from suit was considered undesirable
since in situations of abuse of office, an action for money
damages against the official often times offers the only avenue
for vindication of constitutional guarantees. Id. at 506,
98 S.Ct. at 2910. Qualified immunity, then, strikes a middle
ground in protecting a conscientious official while subjecting
those who mistreat their position to damages.
In Harlow v. Fitzgerald, ___ U.S. ___, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982), the Court provided additional guidance as
to the scope of the Butz qualified immunity. Government
officials performing discretionary functions are shielded from
civil liability as long as "their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known." Id. ___ U.S. at ___, 102
S.Ct. at 2738, 73 L.Ed.2d at 410 (emphasis added). The proper
standard for reviewing the officials' actions is an "objective"
By defining the limits of qualified immunity
essentially in objective terms, we provide no
license to lawless conduct. The public interest
in deterrence of unlawful conduct and in
compensation of victims remains protected by a
test that focuses on the objective legal
reasonableness of an official's acts. Where an
official could be expected to know that certain
conduct would violate statutory or constitutional
rights he should be made to hesitate; and a person
who suffers injury caused by such conduct may have
a cause of action.
Id. ___ U.S. at ___, 102 S.Ct. at 2739, 73 L.Ed.2d at 411
(emphasis added). Thus, a district court presented with an
alleged statutory or constitutional violation by a federal
official must review the facts and determine whether the
officials actions were undertaken in good faith with a
reasonable belief in their constitutional validity. Accord,
Brubaker v. King, 505 F.2d 534 (7th Cir. 1974).
Count III of Lightner's complaint alleges a deprivation of
property in violation of the due process clause of the
Amendment.*fn6 Viewing the facts alleged in support of this
claim in a light most favorable to Lightner, this court is not
prepared to say as a matter of law that the federal defendants
had the requisite good faith reasonable belief in the
constitutionality of their scheme. The FBI scheme clearly led
to Lightner being deprived of property. As to whether a
reasonable person would have thought the deprivation would be
without due process, we recognize first that due process deals
with fairness. It seems that a reasonable person would have
known that it was unfair to cause stolen vehicles which would
have been intercepted by the Illinois police to remain in the
stream of commerce when the natural and probable consequence
of this act would be to hurt innocent people. This is a
situation contemplated by Harlow: these defendants should have
hesitated before engaging the scheme. ___ U.S. at ___, 102
S.Ct. at 2739, 73 L.Ed. at 411. Lightner, as a person who has
suffered injury caused by their conduct, may have a cause of
Should the facts bear out the federal defendants' assertion
that this was a "bona fide" investigation undertaken with a
reasonable belief in its constitutionality, this court will
gladly uphold the federal defendant's qualified immunity. For
now, though, the limited amount of information presented to
this court militates in favor of a conclusion that the federal
defendants should have known their actions might violate due
process rights and their motion to dismiss Count III must be
denied. See, e.g., Crowder v. Lash, 687 F.2d 996, 1007 (7th
Cir. 1982) (question of fact whether defendant officials should
reasonably have known that their conduct would violate clearly
established constitutional norms).
For these same reasons, the federal defendant's qualified
immunity defense will not presently serve as a bar to the
civil rights claim under § 1983 in Count IV or the RICO claim
of Count VII. Until the federal defendants show that they
should not reasonably have expected that their investigation
would violate these statutes, these Counts will not be
dismissed. At present, these defendants have not met their
burden of proof. See Harlow, supra, ___ U.S. at ___, 102 S.Ct.
at 2736, 73 L.Ed.2d at 408.
The federal defendants claim that § 1983 does not apply to
them is incorrect. In Hampton v. Hanrahan, 600 F.2d 600 (7th
Cir. 1979), the Seventh Circuit expressly recognized the
validity of suits under § 1983 against federal officials. Where
there is a conspiracy alleged with state officials as in Count
IV of Lightner's complaint, and those state officials play a
significant role in the conspiracy, "the state officials
provide the requisite state action to make the conspiracy
actionable under Section 1983." 600 F.2d at 632.
The federal defendants further object to the RICO claim
alleged in Count VII of the complaint on the grounds that they
did not possess the criminal scienter requisite to such a
claim. Once again this is a factual question and must be
resolved against the movant federal defendants for purposes of
the instant motion to dismiss. The federal defendants must
show that no set of facts could support Lightner's claim.
Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
B. Absolute Immunity
As discussed above, the Supreme Court in Butz allowed federal
executive officials only a qualified immunity from suits based
on constitutional claims. In reaching its decision, however,
the Butz Court did not remove from these officials their
traditional absolute immunity from suits based on state common
law torts. Butz merely refused to extend absolute immunity to
"an official who has not only committed a wrong under local law
but also violated those fundamental principles embodied in the
Constitution." Butz, supra, 438 U.S. at 496, 98 S.Ct. at 2905.
As the law currently stands, a government official enjoys
absolute immunity from claims involving state common law torts
so long as the acts complained of were performed with the
scope of the official's duties. This grant of absolute
immunity is not an absolute license to act with callous
disregard for the limitations of a particular office. The
immunity is only absolute for those officials who conform to
the plain limits of their statutory authority. Butz, supra, 438
U.S. at 496, 98 S.Ct. at 2905; see, also George v. Kay,
632 F.2d 1103 (4th Cir. 1980); Sami v. United States, 617 F.2d 755
(D.C. Cir. 1979). See generally Lynch, Butz v. Economou and
Federal Executive Officials' Immunity: Much Ado About Nothing?,
59 U.Det.J.Urb.L. 281 (1982).
Counts V and VI of the complaint allege malicious
interference with business and invasion of privacy
respectively. These are common law torts.*fn7
Since absolute immunity is an affirmative defense to be
raised by the federal defendants, the burden of proof is on
them to prove that they acted with the scope of their
authority. Harlow, supra, ___ U.S. at ___, 102 S.Ct. at 2736,
73 L.Ed.2d at 407. They have not yet met this burden. At such
time as this is shown, the state law claims of Counts V and VI
may appropriately be dismissed.
For the above stated reasons, the motion to dismiss is
granted with respect to defendant Smith. As to the remaining
federal defendants, jurisdiction and venue are proper in this
district. Their motion to dismiss is denied with respect to
all Counts. The federal defendants' motion for transfer of
venue to the Eastern District of Missouri is also denied.