The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Angelia M. Whitehead ("Whitehead") sues Gateway Chevrolet,
Oldsmobile, Inc. ("Gateway"), Craig Andrea ("Andrea"), Lee Dryzbek
("Dryzbek"), and Thomas Okimoto ("Okimoto") (collectively "defendants")
for violations of the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1962(c) [Count I], and common Jaw fraud [Count
II]. Thereafter, this court ordered Whitehead to file a RICO case
statement. In the interim, defendants moved to dismiss Whitehead's
complaint for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1). In response, Whitehead filed a combined response to
defendants' motion to dismiss and her RICO case statement. Defendants'
motion, construed as a Fed.R.Civ.P. 12(b)(6) motion to dismiss, was
granted, and Whitehead was given leave to file an amended complaint in
order to incorporate the allegations from her RICO case statement.
Defendants now move to strike and dismiss Whitehead's amended complaint
pursuant to Fed.R.Civ.P. 12(f) and 12(b)(6). Specifically, defendants
claim that ¶¶ 64, 68-93, 96-133 and 137 of the amended complaint (as
well as portions of the RICO case statement) should be
stricken because Whitehead has included Gateway's confidential
information in those paragraphs, violating an agreed protective order
entered by Judge Bucklo in Isaiah Beene v. Gateway Chevrolet,
Oldsmobile, Inc., Case No. 02 C 830, Minute Order 7/11/2003, Doc.
No. 26 (hereinafter, "Beene protective order"). Defendants
further claim that Whitehead's amended complaint is fatally defective in
the absence of the protected allegations. Finally, defendants request
sanctions against Whitehead's attorney Christopher V. Langone
("Langone") pursuant to Fed.R.Civ.P. 37(b) for his violation
of the Beene protective order.
Underlying Whitehead's RICO claim is her purchase of a 1996 Mercury
Mystique from an unidentified Gateway employee on August 14, 1999. Compl.
¶ 16. Whitehead signed a retail installment sales contract to finance
the car. Id. ¶ 16. According to Whitehead, the Gateway
employee obtained financing for her contract by misrepresenting to Triad
Financial that she made a $1000 down payment ("phantom down payment").
Id. ¶¶ 17, 63. In addition, Whitehead maintains that the
Gateway employee falsely represented that the annual percentage rate
("APR") of interest would be 12.95%. Id. ¶¶ 16, 21-22, 63.
Whitehead then signed a second retail installment sales contract many
days later that set the APR at 20.50% after she was informed that the
12.95% rate was unavailable. Id. ¶¶ 21, 24. Whitehead
maintains that an unnamed Gateway employee falsely back-dated the second
contract. Id. ¶ 25. This second contract "on
information and belief" was then allegedly mailed and/or faxed to
an unnamed finance company. Id. ¶ 26. Whitehead alleges that
her name was forged on a title document by an unidentified Gateway title
clerk. Id. ¶ 63.
The predicate racketeering acts are not restricted to Whitehead. The
amended complaint alleges purported predicate acts of mail fraud, wire
fraud, financial institution fraud, and title forgery aimed at other
Gateway consumers in a scheme to defraud them. The propriety of the
overwhelming majority of those allegations is the subject of defendants'
motion to strike. Whitehead contends that Gateway uses phantom down
payments and title forgery in order to induce third party finance
companies to finance retail installment contracts on behalf of consumers
that they would otherwise reject, thereby binding consumers to
economically disadvantageous contracts. In addition to those allegations
that are the subject of defendants' motion to strike, Whitehead points to
five other retail installment contract disputes involving Gateway, namely
those of: (1) Donna Beene; (2) Isaiah Beene; (3) Jason Knight and Tiffany
Peake; (4) Rose Tully; and (5) Pearlie Smith.
In January 2000, Donna Beene purchased a vehicle at Gateway from Scott
Falcone, one of its finance managers. Id. ¶ 52. Beene, like
Whitehead, entered into a retail installment sales financing contract
that misrepresented she made a $1000 down payment. Id. ¶¶
52-53. In fact, Beene made no down payment. Id. ¶ 53.
Instead, Gateway knowingly accepted a bad check from Beene in the amount
of $1000. Id. ¶ 53.
Gateway then purportedly mailed the contract to Triad Financial
Corporation, a third party finance company, on January 31, 2000.
Id. ¶ 53. At the same time, a Gateway title clerk, Barb
Flores, forged Beene's name on a title document. Id. ¶ 55.
According to Whitehead, Triad later learned about the phantom down
payment, and required Gateway to re-purchase the
contract. Id. ¶ 56. Gateway then attempted to sell the
contract to another finance company using "fraudulent means."
Id. ¶¶ 57-58. Unable to do so, Gateway through
defendant Okimoto and at the behest of defendant Andrea-sent Beene a
letter that stated "to avoid arrest you are instructed to return the
vehicle immediately." Id. ¶ 58. Beene did not return the
vehicle on advice of counsel. Id. ¶ 52.
Gateway repossessed the car. Id. ¶ 58. In order to sell
the car to another customer, Gateway title clerk Stacy Scalise forged
Beene's name on a title on October 14, 2000, and "used the mails to
register the forged title. . . . and sell the contract" to an unnamed
finance company. Id. ¶ 59.
Within "several days" of Donna Beene's purchase, Isaiah Beene
her father bought a car from Gateway. Id. ¶ 54. Like
his daughter, Isaiah Beene signed a retail installment contract that
misrepresented he made a $1000 down payment. Id. ¶ 54. In
order to do so, Gateway used the personal check received from Donna
Beene. Id. ¶ 54. Isaiah Beene's retail installment contract
was purchased by Auto One, a finance company. ...