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CITY OF CHICAGO HTS. v. LOBUE

January 7, 1994

THE CITY OF CHICAGO HEIGHTS, ILLINOIS, Plaintiff,
v.
NICK LOBUE, et al., Defendants.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Before the court are the motions of defendants Nick LoBue, Charles Panici, and John Gliottoni, Jr., *fn1" to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. LoBue has two motions to dismiss pending -- one based on lack of standing and one based on statute of limitations. Panici and Gliottoni have only moved to dismiss on the basis of statute of limitations. For the reasons set forth below, the court denies defendants' motions.

 I. BACKGROUND

 Plaintiff's complaint, filed November 10, 1992, alleges that from about May 1975 until May 1991, elected officials of the City of Chicago Heights and other individuals and businesses arranged and participated in numerous schemes involving bribery, extortion and kickbacks. The bribery, extortion and kickbacks were made in connection with various contracts between the city and certain businesses to sell water treatment chemicals to the city, haul garbage, operate a landfill, construct improvements to the water distribution system, perform plumbing services, provide a health maintenance organization plan to city employees, and deliver cable television services. Several of the schemes diverted city funds to city officials and other participants.

 Plaintiff originally named as defendants 14 persons who allegedly participated in the bribery, extortion and kickback schemes. Among those 14 are Nick LoBue, Charles Panici, and John Gliottoni, Jr., the defendants who bring these motions to dismiss. During times relevant, Panici was the Mayor of Chicago Heights. LoBue was Commissioner of Accounts and Finances for the city, while Gliottoni was the Commissioner of Public Health and Safety. In addition, LoBue owned and ran a business also named as a defendant.

 The various alleged schemes occurred over different periods from 1975 to 1991. According to plaintiff's complaint, the last act in which defendant Gliottoni was alleged to be directly involved ended in 1984, and the last act in which defendants LoBue and Panici were alleged to be directly involved ended in 1991. Plaintiff alleges in its complaint that it discovered its injuries caused by defendants' acts on approximately March 25, 1992.

 II. DISCUSSION

 Defendant LoBue contends that Chicago Heights's complaint should be dismissed on two grounds: that plaintiff lacks standing, and that the alleged actions took place outside the four-year statute of limitations for RICO actions. Defendant Gliottoni adopts in entirety LoBue's motion to dismiss based on the statute of limitations. Defendant Panici adopts LoBue's motion based on the statute of limitations and, almost as an aside, raises a third ground for dismissal: that the court lacks subject matter jurisdiction to proceed with the RICO complaint because a similar lawsuit involving the same parties is pending in the Circuit Court of Cook County, Chancery Division. The court rejects defendants' arguments and denies all the motions to dismiss.

 A. Standard for Motion to Dismiss

 A Rule 12(b)(6) motion to dismiss for failure to state a claim may be granted if it is beyond doubt that the plaintiff is unable to prove any set of facts that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). The court must take all well-pleaded facts and allegations as true, and must view them in the light most favorable to the plaintiff. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). Plaintiff is entitled to all reasonable inferences that can be drawn from the complaint. Id. Defendants have not overcome this heavy burden.

 B. Standing

 Defendants argue that RICO does not allow municipalities to bring civil actions for treble damages, since only "persons" or "private parties" may bring such actions. This argument ignores the relevant holdings of the Seventh Circuit and this district.

 RICO authorizes "any person" to bring a civil action for treble damages under the statute. 18 U.S.C. § 1964(c). Section 1961(3) defines "person" as including "any individual or entity capable of holding a legal or beneficial interest in property." 18 U.S.C. § 1961(3). Common sense dictates that a municipal corporation may hold legal or beneficial interest in property, and thus may be a "person" under this ...


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