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Cueto v. Grogan

September 1, 2009


The opinion of the court was delivered by: Herndon, Chief Judge


I. Introduction and Background

Now before the Court are Defendants' separate motions to dismiss (Docs. 19, 24 and 27). All three Defendants move to dismiss Cueto's cause of action arguing, inter alia, that his claim is barred by the statute of limitations and that he is collaterally estopped by his criminal conviction from bringing his claim. Cueto opposes the motions (Docs. 30, 31, 32, & 33). Defendants all filed replies (Docs. 34, 37 & 38). Based on the pleadings, the applicable law and the following, the Court GRANTS the motions.

On November 14, 2008, Amiel Cueto, pro se, filed suit against James Grogan, Robert Haida, and Bonds Robinson pursuant to 18 U.S.C. § 1962, et seq., the Racketeer Influenced and Corrupt Organizations Act ("RICO") (Doc. 1). In essence, Cueto alleges that from 1986 until 2004, Defendants, through various acts, conspired to frame him and that this conspiracy resulted in his federal criminal conviction and the loss of his ability to earn a living practicing law. As to Haida, the St. Clair County, Illinois State's Attorney, Cueto alleges that Haida failed to prosecute Thomas Venezia for murder and provided false testimony in Cueto's criminal trial. As to Robinson, an agent of the Illinois Liquor Control Commission, Cueto alleges that Robinson extorted money from Illinois liquor licensees. As to Grogan, a lawyer for the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois ("ARDC"), Cueto alleges that Grogan conspired with then Assistant United States Attorney Miriam Miquelon and others to frame him. Cueto seeks treble damages in the amount of $90,000,000.00; reasonable attorney's fee of 1/3 the damages and other costs of the suit.

In 1997, Cueto was convicted in the Southern District of Illinois of one count of conspiracy to defraud the United States and three counts of obstruction of justice. United States v. Cueto, No. 96-CR-30070-DRH (S.D. Ill. September 19, 1997)(Limbaugh, J.). The Seventh Circuit Court of Appeals upheld his conviction and sentence in 1998, United States v. Cueto, 151 F.3d 620 (7th Cir. 1998), and the United States Supreme Court subsequently denied certiorari, United States v. Cueto, 526 U.S. 1016 (1999).

Thereafter, Cueto filed a habeas corpus petition pursuant to 28 U.S.C. § 2255 on November 11, 1999. Cueto v. United States, 99--CV-0831-SNL (Doc. 1). District Judge Stephen Limbaugh denied Cueto's petition on August 18, 2000.

Id. at Doc. 34. On March 15, 2001, the Seventh Circuit denied Cueto's request for certificate of appealability. Id. at Doc. 42. On July 19, 2002, Cueto filed another petition for habeas corpus pursuant to 28 U.S.C. § 2241. Cueto v. Stepp, 02-0777-JDT (Doc. 1). On December 15, 2005, Judge Tinder dismissed the § 2241 petition for want of jurisdiction as a successive petition barred by § 2255. Id. at Docs. 114 & 115.

In 1997, an ARDC Administrator initiated proceedings to have Cueto disbarred. In re Cueto, Comm. No. 97-SH-100 (Ill. A.R.D.C. March 28, 2003). On August 19, 1998, the Supreme Court of Illinois suspended Cueto from the practice of law pending further order. On August 31, 2001, the ARDC Review Board rejected a first set of findings issued by the ARDC Hearing Board and remanded for further proceedings, Comm. No. 97-SH-100 (Ill. A.R. D.C. Aug. 31, 2001), a decision left undisturbed by the Illinois Supreme Court, M.R. 17763, Comm. No. 97-SH-100 (Ill. Jan. 30, 2002). On July 19, 2004, the ARDC Review Board adopted the ARDC Hearing Board's second set of findings and recommended Cueto's disbarrment. Comm. No. 97-SH-100 (Ill. A.R.D.C. July 19, 2004). On November 17, 2004, the Illinois Supreme Court adopted the ARDC Review Board's recommendation and disbarred Cueto. M.R. 19679, Comm. No. 97-SH-100 (Ill. Nov. 17, 2004).

II. Motion to Dismiss

Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. To state such a claim, the complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Motions to dismiss are intended only to test the legal sufficiency of the plaintiff's complaint, not to address the claims on their merits; summary judgment motions are the proper vehicles to consider legal arguments and evidence.

In 2007, the Supreme Court determined that Conley's famous "no set of facts" phrase "has earned its retirement." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). According to the Supreme Court, the threshold pleading requirement of Federal Rule of Civil Procedure 8 requires a complaint allege "enough facts to state a claim to relief that is plausible on its face" in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted. Id. at 570 (clarifying that a "heightened fact pleading of specifics" is not required)(emphasis added). In other words, the Supreme Court explained it was "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do . . . ." Id. at 555 (alteration in original)(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). The plaintiff must plead factual allegations which show the right to relief exists beyond mere speculation by "rais[ing] a reasonable expectation that discovery will reveal evidence" to substantiate the plaintiff's claims. Id. at 556 ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable and 'that a recovery is very remote and unlikely.'")(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)(emphasis added)).

Further, when deciding a motion to dismiss, a court may consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment. Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998); Gen Elec.Capital Corp v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997). Judicial notice of historical documents, documents contained in the public record, and reports of administrative bodies is proper. Menominee, 161 F.3d at 456.

III. Analysis

Statute of ...

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