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D'LAST CORP. v. UGENT

September 19, 1994

D'LAST CORPORATION, Plaintiff,
v.
AVERY A. UGENT; THE BRADLEY ADAM CORPORATION; AMERICAN INTERNATIONAL IMMIGRATION AGENCY, INC.; PAN AMERICAN PHOTOGRAPHIC SUPPLY CORPORATION; AVALUG-CONCORDIA CORPORATION; AIIP, INC.; 1 and US PASSPORT PHOTO SERVICE, INC., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 D'Last Corporation ("D'Last") has filed a seven-count Complaint against a number of defendants, asserting claims grounded in the Racketeer Influenced and Corrupt Organizations Act ("RICO") (Count I), the Sherman Act (Count II), the Illinois Consumer Fraud and Deceptive Practices Act (Count III), tortious interference with contracts and prospective contracts (Count IV), trade slander and libel (Count V), piercing the corporate veil (Count VI) and conspiracy (Count VII). As to all but the first two counts D'Last invokes the supplemental jurisdiction concept of 28 U.S.C. § 1367(a).

 All of the corporate defendants have moved for dismissal pursuant to Fed. R. Civ. P. ("Rule") 9(b), 12(b)(1) and 12(b)(6), and the fully-briefed motions have been transferred from the calendar of this Court's colleague Honorable James Alesia to this Court for disposition. For the reasons stated in this memorandum opinion and order, the motions to dismiss are granted and this action is dismissed. *fn2"

 D'Last's Allegations

 Familiar Rule 12(b)(6) principles require the district court to accept as true all of plaintiff's well-pleaded factual allegations, drawing all reasonable inferences in plaintiff's favor ( Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992)). No motion to dismiss should be granted unless the court concludes that no relief could be granted under any set of facts that could be proved consistent with those well-pleaded allegations ( Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)).

 D'Last's grievances stem from a group of assertedly anticompetitive activities intended to harm its business of supplying photograph and fingerprint services used primarily for immigration purposes. D'Last and defendants The Bradley Adam Corporation ("Bradley Adam"), American International Immigration Agency, Inc. d/b/a Private Immigration Agency ("American International") and Pan American Photographic Supply Corporation ("Pan American") operate studios engaged in that business in Chicago. Defendants Avalug-Concordia Corporation ("Avalug") and AIPP, Inc. ("AIPP") operate similar businesses in Houston, Texas, and defendant US Passport Photo Service, Inc. ("US Passport") carries on a like business in Miami, Florida. Defendant Avery Ugent ("Ugent"), a Florida resident, is president and sole or controlling shareholder of each of the corporate defendants (all Florida corporations).

 D'Last alleges that from August 1991 through November 1992 employees of Ugent *fn3" and of Bradley Adam undertook a campaign under Ugent's direction for the purpose of either forcing D'Last out of business or compelling D'Last to sell its business to Ugent at a minimal price (Complaint P21). Among the acts ascribed to those employees were stationing "large and threatening" individuals in front of D'Last's studio to prevent and dissuade customers from entering; stealing a canopy and sign from D'Last's entrance; committing batteries on D'Last's employees and on one of its customers; threatening to commit additional batteries; making a series of false or disparaging statements to potential D'Last customers; filing false criminal complaints against D'Last's employees; harassing D'Last's employees; staging fights with D'Last's employees in front of its entrance; paying D'Last's employees to stay home or "slack off" at work; soliciting "intelligence" from D'Last's employees by cash offers; physically turning away D'Last's customers; paying INS workers to direct immigrants to Bradley Adam or American International and to steal fingerprint forms; suborning perjury in a state court action brought to restrain the obstruction of D'Last's customers and employees; obstructing D'Last's entrance; and trespassing on D'Last's premises. D'Last also asserts on information and belief that the same employees repeatedly attempted to solicit hit men to kill D'Last's president and perhaps others of its employees.

 D'Last ties the other defendants into the complained-of activity by alleging in general terms that each of them participated to some degree in the charged acts. Ugent is said to have directed the acts by telephone and by traveling from his home in Florida to Chicago (Complaint P22). Bradley Adam allegedly paid the unnamed individuals who actually performed the acts (Complaint P23). American International assertedly participated in the management of those same employees and "knowingly accepted the benefit" of those acts (Complaint P24). Pan American purportedly "conspired" with Bradley Adam, American International and Ugent to refer customers to Bradley Adam (Complaint P25). Avalug, AIPP and US Passport--though none is located or does business in Chicago--allegedly paid part of the salary of Eugene Dickerson ("Dickerson"), Ugent's national manager who was transferred to Chicago to manage the activities of Bradley Adam and to carry out the pattern of oppressive activity (Complaint PP20, 26).

 D'Last's RICO claim also alleges other activity on defendants' part in order to satisfy the "racketeering activity" component of that claim (see 18 U.S.C. §§ 1961(1) and (5) *fn4" ). Any discussion of those added allegations will be deferred to the section of this opinion dealing with the RICO claim.

 D'Last's Claims

 As already indicated, D'Last advances a veritable host of legal theories. Because this opinion finds both federally-based claims insufficient, it also dismisses all of the state-law claims on a nonsubstantive basis under the teaching of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). What follows therefore focuses primarily (though not exclusively) on the RICO and Sherman Act claims.

 I. RICO

 D'Last seeks to bring Section 1962(c) into play to establish its RICO cause of action. As with every such RICO claim, D'Last must sufficiently allege defendants' "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity" ( Vicom, Inc. v. Harbridge Merchant Serv., 20 F.3d 771, 778 (7th Cir. 1994), quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985)). Movants (who it will be remembered are all the corporate defendants--all of the defendants save Ugent himself *fn5" ) contend that D'Last's RICO claim fails (1) because D'Last has named precisely the same entities as the defendant RICO "persons" and as the RICO ...


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