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SKIERKEWIECZ v. GONZALEZ

April 21, 1989

CHRISTINE SKIERKEWIECZ, LEO D. STOLLER, CHESTNUT INDUSTRIES, and STEALTH INDUSTRIES, INC., Plaintiffs,
v.
JESUS J. GONZALEZ, ROBERT J. VRANDECIC, JOHN T. BROWN, DAVID C. HILLIARD, PATTISHALL, McAULIFFE & HOFSTETTER, CHARLES BALEY, MARK HINCHY, BALEY, HINCHY, DOWNES & ASSOCIATES, INC., and SLAZENGERS LIMITED, British company, Defendants


Charles P. Kocoras, United States District Judge.


The opinion of the court was delivered by: KOCORAS

CHARLES P. KOCORAS, UNITED STATES DISTRICT JUDGE

 This case comes before the Court on defendants John J. Brown's, David C. Hilliard's, Pattishall, McAuliffe, Newberry, Hilliard & Geraldson's, (hereinafter "Defendant Attorneys"), Charles Baley's, Mark Hinchy's, and Baley, Hinchy, Downes & Associates, Inc.'s, (hereinafter "Defendant Investigators"), Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Defendants contend that Counts I through IV of the Complaint must be dismissed for failure to state a claim against these defendants and that the remaining counts must be dismissed because they name only defendants previously dismissed by plaintiffs. For the following reasons, the defendants' motion is granted in part and denied in part.

 FACTS

 On April 28, 1988, Slazengers Limited, (hereinafter "Slazengers"), filed a Motion for Temporary Restraining Order, Order for Seizure and for Preliminary Injunction. Simultaneously, a civil action number 88 C 3722 was filed under seal against Leo D. Stoller and Chris Stoller d/b/a Sentra Sporting Goods Co., Chestnut Industries, and Stealth Industries, Inc. (hereinafter sometimes "Stoller Defendants") alleging trademark infringement and counterfeiting trademarks.

 On April 29, 1988, Defendant Attorneys appeared in chambers before Honorable James B. Parsons and presented their Motion for Ex Parte Seizure Order and affidavits in support. Judge Parsons entered the Ex Parte Temporary Restraining Order and Order for Seizure.

 On May 4, 1988, two United States Marshals executed the Court's April 29, 1988, Order for Seizure at the Stoller Defendants' office and warehouse in Chicago. Subsequently, the Stoller Defendants brought a motion to vacate the seizure order to obtain the return of their goods.

 On May 27, 1988, Judge Parsons addressed the defendants' motion to vacate and issued his Memorandum Opinion and Order in which he was highly critical of Defendant Attorneys. Judge Parsons detailed the numerous misrepresentations which had been made to him by the Defendant Attorneys at the Ex Parte hearing and made it clear that he would not have ordered the seizure in the absence of the false portrayal of the plaintiffs as counterfeiters. Nevertheless, Judge Parsons found it necessary to issue a preliminary injunction, enjoining the Stoller Defendants from selling tennis rackets marked with the word "Panther" or hang tags used as advertising pieces depicting a panther in any position.

 On August 19, 1988, the plaintiffs filed the Complaint which is the subject of the Defendants' Motion to Dismiss. In Count I of plaintiffs' Complaint, plaintiffs seek damages against Defendant Attorneys for wrongful seizure pursuant to 15 U.S.C. § 1116(d)(11). In Count II, plaintiffs attempt to state a claim for abuse of process. Finally, Counts III and IV allege that Defendant Attorneys and Defendant Investigators committed trespass to chattel and trespass to land, respectively, during the execution of the April 29, 1988, Order for Seizure.

 DISCUSSION

 In order to have a claim dismissed under Rule 12(b)(6), the moving party must meet a high standard. The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits of the case. Under the "simplified notice pleading" of the Federal Rules of Civil Procedure, the allegations of a complaint should be construed liberally and "the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); see also Lewis v. Local Union No. 199 of Laborers' Intern. Union of North America, AFL-CIO, 750 F.2d 1368 (7th Cir. 1984). Generally, "mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985).

 When considering a defendant's motion to dismiss the Court must view the complaint's allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Conley, 355 U.S. at 45, 78 S. Ct. at 102. All well-pleaded facts and allegations in the plaintiffs' complaint must be taken as true, Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986), and the plaintiff is entitled to all reasonable inferences that can be drawn therefrom. "Furthermore, a complaint is not required to allege all, or any, of the facts logically entailed by the claim. . . . [A] complaint does not fail to state a claim merely because it does not set forth a complete and convincing picture of the alleged wrongdoing." American Nurses Ass'n v. State of Illinois, 783 F.2d 716, 727 (7th Cir. 1986).

 The defendants first contend that plaintiffs' claim for wrongful seizure (Count I) against the Defendant Attorneys must be dismissed. The defendants argue that the plaintiffs are merely seeking recovery for representations made by the Defendant Attorneys in the course of representing their client's legitimate trademark interest in obtaining the Order of Seizure and that these representations are protected under Illinois law. Miller v. St. Charles Condominium Ass'n, 141 Ill. App. 3d 834, 491 N.E.2d 125, 96 Ill. Dec. 311 (1986). The defendants maintain that an attorney has a conditional privilege in advising and acting on behalf of his client which cannot be attacked absent a showing of malice, or the attorney's desire to harm which is separate and apart from the attorney's desire to protect his client. See Havoco of America, Ltd. v. Hollowbow, 702 F.2d 643 (7th Cir. 1983) (suit against attorneys for tortious interference with business opportunity).

 The plaintiffs argue, however, that defendants have ignored the fact that plaintiffs' claim for wrongful seizure is brought pursuant to the federal cause of action created by 15 U.S.C. § 1116(d)(11) and have wrongfully read into this statute a conditional privilege ...


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