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JACOBS v. PAYNTER

December 19, 1989

ANNETTE JACOBS, Individually and as sole stockowner in JAKES MARKETPLACE, INC., an Illinois Corporation, Plaintiffs,
v.
BRUCE PAYNTER, etc., et al., Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE:

 Annette Jacobs, individually and on behalf of Jakes Marketplace, Inc., brings this action pursuant to 42 U.S.C. ยง 1983 alleging violations of her rights under the Fourth, Sixth and Fourteenth Amendment to the Constitution, as well as several common law tort causes of action. The defendants include: Bruce Paynter, an Assistant States Attorney for Cook County, Illinois; police officer Robert Pistilli; police officer Jeffrey Kumorek; police officer Thomas J. O'Connor; police officer John Schnoor; police officer Richard Obermaier; unknown Chicago police officers; Superintendent of Police Leroy Martin; Cook County State's Attorney Cecil A. Partee; *fn1" and the City of Chicago. We consider in this opinion the motions to dismiss of each defendant, with the exception of Paynter. *fn2"

 Background

 For the purposes of the motions, we assume the truth of Jacobs' allegations. Zinser v. Rose, 868 F.2d 938, 939 (7th Cir. 1989). Jacobs is the sole shareholder of Jakes Marketplace, Inc. ("Jakes"). Jakes is in the business of dealing and appraising collectibles such as coins, stamps and baseball cards.

 Jacobs has been subjected to a long history of unfair treatment by the police. For a period of two years prior to February 1989, the police would "aggressively" enter Jakes about once every two months. While the police were inside the store, they would "freely move about with no concern for privately controlled areas." (Cmplt., para. 15).

 On February 18, 1989, Paynter entered Jakes accompanied by Pistilli, Kumorek, O'Connor, Schnoor and Obermaier, who are detectives in the Chicago Police Department. These individuals, who did not have a search warrant, demanded to see all recently purchased baseball cards. Paynter and the officers threatened to obtain a search warrant and "tear the place apart" if Jacobs did not cooperate.

 Paynter then proceeded to inspect Jakes' inventory of baseball cards. Paynter told the police officers that certain baseball cards actually belonged to him and had been stolen from his residence. The police seized these cards and other items without Jacobs' consent.

 Jacobs states that after "the latest incidents commencing on February 18, 1989, [she] complained to the Chicago Police Department about wrongful conduct and behavior by police officers." (Cmplt., para. 15). The complaint is silent as to what action, if any, was taken in response to Jacobs' protests.

 On February 24, 1989, police officer Kumorek obtained a warrant to search Jakes. The warrant authorized the police to seize any baseball cards known to have been stolen from Paynter's residence. The police seized various items, such as pocketwatches and Egyptian ingots, which were not specified in the search warrant.

 Jacobs also complains that during the execution of the warrant, the police forced six Jakes' employees to stand for two hours in a "small two person room." (Cmplt., para. 29). In addition, Jacobs alleges that the employees and a customer were "roughly handled"; these actions resulted in "undue hardship and physical and emotional strain."

 Jacobs alleges that the police searches on February 18 and February 24 constituted unlawful searches and seizures and violated her Sixth Amendment, equal protection and due process rights. In addition, Jacobs states that the police conduct constituted "arrest, theft intentional infliction of emotional distress, negligence and gross negligence under the laws of the State of Illinois." Martin and Partee are sued in their official capacity. Paynter and the police officers are sued individually, as well as in their official capacities.

 Discussion

 As a threshold matter, the defendants assert that Jacobs has improperly commingled her corporate and individual claims. Jacobs uses the singular "plaintiff" throughout the complaint and fails to identify which claims are asserted individually and which claims are asserted on behalf of the corporation. The defendants state that Jacobs is attempting to assert claims for injuries suffered by the corporation, as if she had suffered these injuries individually.

 A corporation and its shareholders are separate entities. Kush v. American States Ins. Co., 853 F.2d 1380, 1383 (7th Cir. 1988); Bevelheimer v. Gierach, 33 Ill. App. 3d 988, 339 N.E.2d 299, 303 (1st Dist. 1975). Thus, a shareholder cannot sue individually for injuries suffered by the corporation. Id. However, "the general rule that corporation and its shareholders are separate entities is subject to the qualification that the separate identity may be disregarded in exceptional situations where it otherwise would present an obstacle to the due protection or enforcement ...


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