The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court is a Motion to Dismiss plaintiff's Amended Complaint
pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff, Gerald E. Hess, seeks relief
pursuant to Ill.Rev.Stat. 1985, ch. 110, ¶ 13-202, alleging that
defendant caused a malicious prosecution against plaintiff.
To sustain a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), the
court must take all well-pleaded allegations as true and construe the
complaint in the light most favorable to the plaintiff to determine
whether he is entitled to relief. Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). "The issue is not whether
plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support his claims." Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
Plaintiff owns and operates a gas station in Madison County, Illinois.
He previously had been an employee of Missouri Pacific. On. January 6,
1984, defendant, through its agents, seized numerous items from
plaintiff's gas station, alleging that the items were property of Missouri
Pacific. On January 18, 1984, plaintiff was charged in state court with
felony theft of these items. However, the prosecution was terminated when
the state court granted the prosecution's nolle prosequi motion on
September 9, 1985. Plaintiff then filed an action for malicious
prosecution on November 18, 1985. Defendant now alleges numerous grounds
on which this action should be dismissed.
Defendant argues that plaintiff has failed to provide a short and plain
statement of his claim which would entitle plaintiff to relief; and that
plaintiff's amended complaint alleges multiple claims including
defamation, conversion, and intentional infiction
of emotional distress. The principal thrust of plaintiff's complaint,
however, is a claim for malicious prosecution.
Under Fed.R.Civ.P. 8(a), plaintiff need only make a brief, plain
statement sufficient to notify defendant of the theory of his claim and
the grounds which support it. Conley, 355 U.S. at 47, 78 S.Ct. at 102.
Under Illinois law, a claim for malicious prosecution is shown by
stating: the termination of the original proceeding in favor of the
present plaintiff; damages proximately caused by an unsuccessful
proceeding; the absence of probable cause for such proceeding; and the
presence of malice. Freides v. Sani-Mode Mfg. Co., 33 Ill.2d 291, 295,
211 N.E.2d 286, 288 (1965), affirmed in McCrimmon v. Kane County,
606 F. Supp. 216, 223 (N.D.Ill. 1985).
In his amended complaint, plaintiff alleges that defendant filed a
false and malicious affidavit charging plaintiff with having feloniously
stolen numerous items. Plaintiff also alleges that by reason of that
affidavit he was brought before the state court where subsequently the
charges were terminated in favor of plaintiff. Plaintiff further alleges
that defendant was without probable cause to suspect plaintiff of any
criminal conduct, and that defendant's primary purpose was to injure
plaintiff. Plaintiff asserts that defendant has damaged plaintiff's good
name, reputation and business. Taking all allegations as true for
purposes of this motion, plaintiff has stated a claim for malicious
prosecution under Illinois law.
Defendant further argues that a nolle prosequi is rnot an acquittal,
and that plaintiff is not entitled to any issue preclusion. Although the
Court has not found any Illinois decision directly on point, it seems
clear that a prosecution which is terminated by nolle prosequi is a
termination in favor of plaintiff for purposes of a malicious prosecution
claim. 54 C.J.S. Malicious Prosecution § 59; see also White v.
Coleman, 277 F. Supp. 292, 297 (D.S.C. 1967).
Cases where a compromise between the prosecution and the accused leads
to the nolle prosequi must be distinguished. If a nolle prosequi is filed
because of a compromise, then a nolle prosequi does not qualify as a
termination in favor of plaintiff. Baxter v. U.S. Air, Inc., No.
85-C-1530, slip op. (N.D.Ill. 1985); Leyenberger v. Paul, 40 Ill. App. 516,
522-23 (1890). In the present case, there has been no evidence of a
compromise. Hence, termination of plaintiff's felony charge by nolle
prosequi must be viewed at this time as a termination in his favor.
Defendant also argues that it cannot be held liable for malicious
prosecution, because Illinois public policy favors the reporting of
crimes. However, public policy favors the reporting of crimes only if the
person who is reporting acts in good faith and with probable cause. Joiner
v. Benton Community Bank, 82 Ill.2d 40, 44 Ill.Dec. 260, 262,
411 N.E.2d 229, 231 (1980). Viewed in the light most favorable to the
plaintiff, the complaint states that defendant acted in bad faith and
without probable cause. Thus, public policy would not protect the
defendant from liability.
Defendant also contends that plaintiff's cause of action should be
dismissed, because the Illinois statute of limitations has run. See
Ill.Rev.Stat. 1985, ch. 110, ¶ 13-201 (one year statute of
limitations for defamation suits). As earlier stated, plaintiff is
seeking relief on a malicious prosecution claim, not a defamation claim.
Illinois law states that malicious prosecution claims must be commenced
within two years after the cause of action accrues. Ill.Rev.Stat.1985,
ch. 110, ¶ 13-202. Plaintiff's claim for malicious prosecution did
not accrue until the criminal proceedings ended on September 9, 1985.
Since plaintiffs claim was filed on November 19, 1985, it is timely
Defendant's next argument relies on the employer-employee relationship
that previously existed between plaintiff and Missouri Pacific. Defendant
states that in these relationships, claims such as defamation and
intentional infliction of emotional distress are considered "minor
disputes" under the Railway Labor Act, 45
U.S.C. § 153, et seq. See Beers v. Southern-Pacific Transportation
Co., 703 F.2d 425 (9th Cir. 1983); Majors v. U.S. Air, Inc.,
525 F. Supp. 853 (D.C.Mo.1981). Since the National Railroad Adjustment
Board has exclusive jurisdiction over Railway Labor Act eases, defendant