The opinion of the court was delivered by: Roszkowski, District Judge.
John T. Lightner ("Lightner"), doing business as Lightner
Auto Sales, initiated the instant third-party complaint.*fn1
The complaint stems from an undercover F.B.I. investigation of
interstate theft of automobiles and trucks. Attorney General
William French Smith ("Smith"), Assistant U.S. Attorney Bruce
White ("White"), and St. Louis F.B.I. Agent Barry Jones
("Jones"), (together referred to as "federal defendants"),
have filed the instant motion for dismissal of the claims
against them. Counts III thru VII of plaintiff Lightner's
complaint deal with these federal defendants. Briefly, Count
III is for deprivation of property without due process of law
in violation of the Fourteenth Amendment; Count IV is for
violation of 42 U.S.C. § 1983; Count V is for malicious
interference with business; Count VI is for an invasion of
privacy; and, Count VII is for violation of the Organized Crime
Control Act of 1970, specifically the Racketeer Influenced and
Corrupt Organizations ("RICO") provisions of 18 U.S.C. § 1961
et seq. As an alternative to dismissal, the federal defendants
move for a transfer of venue to the United States District
Court for the Eastern District of Missouri.
For the reasons set forth below, the motion to dismiss is
granted with respect to Smith. As for the federal defendants,
their motion for dismissal is denied with respect to all
Counts. Additionally, their motion for a change of venue is
The facts as alleged in Lightner's complaint are as follows.
Agent Jones initiated a plan whereby David Locke ("Locke"), a
"part-time agent of and informant for the F.B.I." (not a party
to the instant motion), would purchase certain stolen
automobiles and trucks and, by resale, enter these vehicles
into the stream of commerce. To disguise the identity of
stolen vehicles, Locke, who had obtained certificates of title
and matching Vehicle Identification Number ("VIN") tags from
wrecked and scrapped vehicles, was to replace the stolen
vehicles' VIN tags with those of the wrecked and scrapped
vehicles of similar description. The certificates of title for
the wrecked and scrapped vehicles would thereby correspond to
the VIN tags on the stolen vehicles. Thus, purchasers of the
vehicles would be unaware that they were stolen. The plan was
allegedly approved by federal defendants Smith and White.
Locke, after retagging some vehicles, successfully launched
the plan by selling these vehicles to G.T.O. Auto Brokers,
Inc. ("G.T.O."), a Missouri corporation. G.T.O. then sold or
consigned the vehicles to Tremont Auto Auction, Inc.
("Tremont"), a Peoria, Illinois corporation, for the purpose
of selling them to the highest bidder at auction. Lightner
visited Tremont and purchased eight of these stolen vehicles.
He was given the certificates of title to the vehicles — which
of course matched the vehicles' VIN tags — and registered
these with the State of Illinois. Finding nothing amiss, the
State issued new Illinois certificates of title to Lightner.
On May 4, 1981, William Killian ("Killian"), a Dixon,
Illinois Police Officer, visited Lightner Auto Sales to
inspect a 1979 Trans Am which Lightner had purchased from
Tremont. After inspection, Killian informed Lightner that the
vehicle appeared to be stolen. In order that the State Police
could make a more thorough check, Killian told Lightner to
hold the Trans Am. The now suspicious Lightner requested that
Killian also run a check on the other vehicles purchased at
Within a few days, the Trans Am was returned to Lightner's
lot. Trooper Hutson telephoned to inform Lightner that the car
was not stolen. He also told Lightner that the other vehicles
which he had purchased from Tremont were "OK" and he was free
to sell them.
Unknown to Lightner, however, the vehicles in question had
actually checked out as stolen. While the vehicles were under
inspection, F.B.I. Agent Jones had allegedly telephoned
Officer Killian and Lieutenant William Ostergrant, also a
Dixon Police Officer. Ostergrant and Killian were told of the
ongoing F.B.I. undercover scheme. Based on a request by Agent
Jones, the officers ended their investigation of the cars in
question. Lightner was not told of this scheme; he merely
received the call from Trooper Hutson which cleared the
In addition to this incident at Lightner's lot, the
complaint alleges another Illinois incident in which certain
of these scheme vehicles were almost removed from commerce,
but instead resulted in Lightner once again unwittingly
dealing in stolen vehicles. Apparently, Byron Svendson,
another Illinois State Police Officer, had visited Tremont
Auto Auction in Peoria on June 10, 1981, and impounded two
cars as stolen. One of these cars was subsequently released
and sold to Lightner. While the complaint alleges no reason
for this release, documents filed with Lightner's brief in the
instant motion, if true, show that Trooper Svendson knew that
the car was stolen when he released it and that the release
was at the request of St. Louis FBI Agent Jones.
Approximately five months passed before Lightner discovered
the true nature of the vehicles he had sold. Trooper Hutson
presented Lightner with a list of VIN's belonging to vehicles
Lightner had sold — among which were the VIN's of the above
mentioned vehicles — and directed Lightner to call in these
vehicles. Lightner was told to provide loaner cars to the
purchasers and, if the vehicles proved to be stolen, purchase
the cars from the insurance companies who had paid claims on
them and then return them to the customers. When Lightner
refused to comply with Hutson's directive, Hutson allegedly
Hutson told Lightner that unless he cooperated, certain
undesirable "police tactics" would be employed: marked police
cars and uniformed officers would be used to seize the
vehicles from Lightner's customers and the cars would be
forcefully taken from the customers' residences or places of
business. Such a procedure is alleged to have taken place with
respect to two of the vehicles Lightner had sold.
It is based on these facts that Lightner brings this action.
While these "facts" are at present mere allegations, it is
hornbook law that the defendant admits the allegations of the
complaint for purposes of a motion to dismiss. City of
Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976). See also
Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979).
Before rendering any decision concerning a cause of action,
a federal court must have both subject matter and personal
jurisdiction over the claim and its parties. Lightner's
complaint against the federal defendants arises under the
Constitution and laws of the United States and as such is
properly within the subject matter jurisdiction of this court.
28 U.S.C. § 1331. The ...