although the plaintiffs in that case did not establish their own due diligence in their complaint, they did allege that they did not discover the fraud until after the statute of limitations had expired, and that because of the scheme to cover it up could not have discovered it sooner. The court found that these allegations sufficed to plead equitable tolling under federal law, and that the claim could not be dismissed on statute of limitations grounds. Id.
Plaintiff in the present case alleges that defendants conspired to conduct the affairs of the City of Chicago Heights through a pattern of racketeering activity, and that as part of the conspiracy defendants misrepresented, concealed and hid the purposes of and acts committed to further the conspiracy. See Complaint P 19. Plaintiff's complaint also describes specific acts of defendants that indicate defendants were trying to hide their schemes. For example, when one alleged participant (Albert Tocco) was having difficulty taking $ 1,800 per month in cash out of his business to give to LoBue and Panici, he asked if LoBue would take a check. LoBue instead proposed that his exterminating company provide additional services to Tocco's company, although the services never were to be performed. Then, Tocco issued a check each month on the account of his company and payable to LoBue's company in the amount of $ 1,800. LoBue would deposit that check into his company's account and then issue a corresponding check for about $ 1,800 on his company's account and payable to LoBue, who would then cash it or deposit it, and give half to Panici. These payments were disguised on the books of LoBue's company as commissions. See Complaint PP 70-76.
The court finds that plaintiff sufficiently has pleaded that defendants fraudulently concealed their acts so that plaintiff, even through due diligence, would not have been able to discover its injuries before March 1992. Accordingly, plaintiff would be entitled to invoke both equitable estoppel and equitable tolling.
D. Lack of Subject Matter Jurisdiction
Defendant Panici suggests that this court may lack subject matter jurisdiction to proceed with the civil RICO complaint because a similar lawsuit involving the same parties is pending in the Circuit Court of Cook County. As support for this claim, defendant cites Cassity v. Pitts, 995 F.2d 1009, 1012 (10th Cir. 1993), a Tenth Circuit case in which that court affirmed the dismissal of a federal RICO action where a state court action involving identical subject matter was pending. Panici fails to mention that Cassity involved very specific trust and property law concepts wholly inapplicable to the case at bar. Furthermore, beyond citing a case, defendant fails to make any other arguments or showing as to why this court has no subject matter jurisdiction. Panici simply tacked one sentence (plus a footnote) to his supporting memorandum alleging lack of subject matter jurisdiction. His further briefing adds little more. This unsupported, bare assertion is insufficient to warrant dismissal of plaintiff's complaint. In short, Panici has provided no detail as to the allegations in the state court case, or why that case precludes this one. On the record before it, the court cannot dismiss based on that Illinois case.
For the reasons set forth above, the court denies the motions to dismiss the complaint pursuant to Rule 12(b)(6) filed by defendants LoBue, Panici and Gliottoni.
Date: JAN 07 1994
JAMES H. ALESIA
United States District Judge