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PAINEWEBBER, INC. v. RAS

July 19, 1991

PAINEWEBBER, INCORPORATED, Plaintiff,
v.
FLORIAN B. RAS, JOSEPH MARREN, THOMAS THERMOS, LOUIS THERMOS, and ROBERT "MICKEY" MULLEN, Defendants


George W. Lindberg, United States District Judge.


The opinion of the court was delivered by: LINDBERG

GEORGE W. LINDBERG, UNITED STATE DISTRICT JUDGE

 Plaintiff, PaineWebber Incorporated, has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff seeks summary judgment based on collateral estoppel. For the following reasons, plaintiff's motion is granted in part, and denied in part.

 Plaintiff's complaint against defendants Florian Ras, Thomas Thermos and Robert "Mickey" Mullen alleges that each defendant has been convicted of criminal charges arising from participation in a criminal conspiracy: (a) to steal securities owned by the estates of various decedents; (b) to cause those securities to be sold through securities brokerage firms by means of fraudulent representations; and (c) to obtain cash in an amount equal to the value of the stolen stock by forging the signatures of the decedents on brokerage firm checks, made payable to the decedents, that represented the proceeds of the sale of the stolen stock. See United States v. Ras, 713 F.2d 311 (7th Cir. 1983). Plaintiff alleges that the criminal conspiracy deprived the Estate of John Krasa of the value of its stock. The Estate brought an action against plaintiff in the Circuit Court of Cook County, Illinois, which was settled for $ 60,000. Plaintiff argues that defendants are the direct and proximate cause of the Matter of Krasa settlement and, therefore, plaintiff is entitled to recover from each defendant, jointly and severally, the amount of $ 60,000.

 Plaintiff's motion for summary judgment alleges that, by virtue of their criminal convictions, Ras, Thermos and Mullen are collaterally estopped from asserting that they were not participants in a criminal and fraudulent scheme to defraud plaintiff into selling the stolen Krasa stock through plaintiff's facilities. Instituto Nacional de Comercializacion Agricola v. Continental Illinois National Bank and Trust Company, 858 F.2d 1264, (7th Cir. 1988). In its motion, plaintiff requests summary judgment in its favor in the amount of $ 60,000 and that defendants be held jointly and severally liable for the judgment.

 A motion for summary judgment should be granted:

 
If the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 FRCP 56(c). Plaintiff, as movant, bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Moreover, in ruling on this motion, the court will draw all reasonable inferences from the facts in the light most favorable to defendants. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir. 1984). To determine whether a motion for summary judgment should be granted, "the court may only consider evidence and statements that would be admissable at trial and that have probative force." Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 365 (7th Cir. 1987). See also FRCP 56(e).

 A motion for summary judgment may be utilized to invoke the doctrine of collateral estoppel. Crutsinger v. Hess, 408 F. Supp. 548, 555 (D. Kan. 1976). To determine the effect collateral estoppel has in this action, Illinois choice of law rules govern. Instituto Nacional de Comercializacion Agricola v. Continental Illinois National Bank and Trust Company, 858 F.2d 1264, 1271 (7th Cir. 1988). Under Illinois law, "the collateral estoppel or res judicata effect of a judgment is determined by the law of the jurisdiction where the judgment was rendered." Id., at 1271. Nathan v. Tenna Corp., 560 F.2d 761, 763 (7th Cir. 1977). Defendants in this case were convicted of criminal charges in the United States District Court for the Northern District of Illinois. United States v. Ras, 713 F.2d 311 (7th Cir. 1983). Accordingly, federal law determines the collateral estoppel effect criminal convictions may have upon the civil action at bar.

 The Seventh Circuit defines the requirements necessary for the application of collateral estoppel:

 
In general, collateral estoppel precludes relitigation of issues in a subsequent proceeding when: (1) the party against whom the doctrine is asserted was a party to the earlier proceeding; (2) the issue was actually litigated and decided on the merits; (3) the resolution of the particular issue was necessary to the result; and (4) the issues are identical.

 Appley v. West, 832 F.2d 1021, 1025 (7th Cir. 1987) quoting Gilldorn Savings Association v. Commerce Savings Association, 804 F.2d 390, 392-393 (7th Cir. 1986). The court should also consider whether the issue was fairly litigated in the previous action. "The policy underlying the doctrine is that 'one fair opportunity to litigate an issue is enough.'" Gilldorn Savings Association v. Commerce Savings Association, 804 F.2d 390, 392-393 (7th Cir. 1986), quoting Bowen v. United States, 570 F.2d 1311, 1322 (7th Cir. 1978).

 The Seventh Circuit has held that "the party asserting estoppel has the burden of establishing which issues were actually determined in his favor in the prior action." Appley v. West, 832 F.2d 1021, 1025 (7th Cir. 1987). Further:

 
If a court does not make specific findings, the party must introduce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Necessary inferences from the judgment, pleadings and evidence will be given preclusive effect. If there is doubt, however, collateral estoppel will not be applied. If the decision could have been rationally grounded upon an issue other than that which the defendant ...

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