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ROGER WHITMORE'S AUTOMOTIVE SERV. v. LAKE COUNTY

March 31, 2004.

ROGER WHITMORE'S, AUTOMOTIVE SERVICES, INC., and ROGER WHITMORE, Plaintiffs,
v.
LAKE COUNTY, ILLINOIS, GARY DEL RE, GARY STRYKER, THOMAS CRICHTON, ALAN JACK DIAMOND, MAX JOHNSON, AUTO CENTER OF BEACH PARK, INC., WALLY HERMAN, W1LDWOOD SERVICE, INC., KEVIN DEPERTE, KEVIN'S TOWING, INC., EDWARD KOHLMEYER, and A-TIRE, INC., Defendants



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' motions for summary judgment. For the reasons stated below, we grant all Defendants' motions for summary judgment in their entirety. Page 2

BACKGROUND

  This case has been pending before Judge Gottschall for several years and recently was reassigned to this court. Plaintiffs operate a towing business in Illinois. According to Plaintiffs, when the Lake County Sheriffs Office ("Sheriffs Office") needs a vehicle to be towed it follows one of two alternatives. If the operator of the vehicle requests a specific towing company then the Sheriffs office will call the requested company. Otherwise the Sheriffs office calls the towing company that is assigned by the County to cover the area where the vehicle is located. Plaintiffs allege that beginning in 1997 the Sheriffs Office began a scheme to raise money for the Sheriffs campaign for the 1998 Republican primary. According to Plaintiffs the incumbent Sheriff mailed out donation requests and made requests by phone. In addition officers allegedly visited businesses to solicit donations. According to Plaintiffs the Sheriffs Office made sure that only the towing companies that made contributions to the incumbent Sheriffs campaign received contracts from Lake County ("County") for a towing area. Plaintiffs contend that they did not contribute in 1997 to the incumbent Sheriffs campaign and instead supported his opponent. Defendant Gary Del Re was the incumbent Sheriff and Defendant Gary Stryker was the UnderSheriff. Plaintiffs claim that their towing contract area was reduced when the towing territory boundaries were reconfigured in 1998, fourteen months after they failed to contribute to the incumbent Sheriffs fund and supported the Sheriffs opponent. Plaintiffs' second amended version of Counts I through IV are brought Page 3 pursuant to 18 U.S.C. § 1962, Plaintiffs' second amended version of Count V is a common law conspiracy claim. On April 27, 2001 Judge Gottschall, the prior judge in this case dismissed all claims against Lake County and on February 19, 2004 we dismissed al claims against Edward Kohlmeyer. The remaining Defendants have filed summary judgment motions.

  LEGAL STANDARD

  Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed, R, Civ, P, 56(c), In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R. Civ, P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Page 4 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

 1. Statutes at Issue

  Plaintiffs have included a barrage of claims in their amended complaint and their second amended version of Count I through V. We shall address identify and discuss the claims below and then will address them more specifically as they pertain to the remaining counts.

  A. RICO Claims

  Plaintiffs have brought various RICO claims against Defendants pursuant to 18 U.S.C.A. § 1962 which states the following: 1962. Prohibited activities

  (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through Page 5 collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer,
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section,
18 U.S.C.A. § 1962. As will be explained below there is insufficient evidence for a reasonable trier of fact to find that any of the Defendants violated 18 U.S.C.A. § 1962.

  B. Hobbs Act Claims

  Plaintiffs allege that the Hobbs Act, 18 U.S.C. § 1951 was violated by various Page 6 defendants. A plaintiff is required to show the existence of a quid pro quo for a Hobbs claim. See McCormick v. U.S., 500 U.S. 257, 273-74 (1991)(stating that the court "disagree['s] with the Court of Appeals' holding in this case that aquid pro quo is not necessary for conviction under the Hobbs Act."); U.S. v, Allen, 10 F.3d 405, 411 (7th Cir. 1993)(stating that an express promise is required and that "[v]ague expectations of some future benefit should not be sufficient to make a payment a bribe."). It is not a violation of the Hobbs Act to give contributions to the campaign of a candidate. Id (stating that "[t]o hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation."), There is no evidence that any Defendants in this case made contributions to Del Re's ...


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