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Merima Gvozden v. Mill Run Tours

March 28, 2010

MERIMA GVOZDEN, PLAINTIFF,
v.
MILL RUN TOURS, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on motions to dismiss the claims of Plaintiff Merima Gvozden filed by Defendants Mill Run Tours, Inc., Jimmy Daher, and Pierre Azzi (collectively "Mill Run Defendants") and by Defendants Village of Lincolnwood and Officer Schenita Stewart ("collectively "Lincolnwood Defendants").*fn1 In her complaint, Plaintiff brings claims for false arrest/false imprisonment (Count I), malicious prosecution (Count II), intentional infliction of emotional distress (Count III), conspiracy (Count IV), and "violation of 42 U.S.C. § 1983" (Count V). For the following reasons, the Court grants in part and denies in part Defendants' motions to dismiss [18 & 23]. With respect to the Mill Run Defendants' motion [18], the Court dismisses without prejudice Counts IV and V. With respect to the Lincolnwood Defendants' motion [23], the Court dismisses without prejudice Counts I and IV. Plaintiff's state-law false arrest, malicious prosecution, and intentional infliction of emotional distress claims remain pending as to the Mill Run Defendants,*fn2 and her malicious prosecution, intentional infliction of emotional distress, and 42 U.S.C. § 1983 false arrest claims remain pending as to the Lincolnwood Defendants.

I. Background

Defendant Mill Run Tours, Inc. ("Mill Run") is a ticket facilitator/air travel wholesaler that obtains airline tickets at bulk rate prices directly from airlines and resells those tickets to travel agencies for a profit. Plaintiff Merima Gvozden worked for Defendant Mill Run Tours, Inc. ("Mill Run") as a ticket agent from 1997 until June 2006, when she went to work for one of Mill Run's competitors. Plaintiff Nagi Tabet worked for Mill Run from approximately 1988 to June 2006, when he too went to work for a competitor. Defendant Jimmy Daher was the manager of the Chicago office of Mill Run. Defendant Pierre Azzi was a supervisor and agent for Mill Run, based out of the New York office.

According to the complaint, on or about June 18, 2008 and prior to that date, Defendant Daher spoke to Lincolnwood Police Detective (and Defendant) Schenita Stewart and alleged that Plaintiffs had fraudulently and criminally converted money that belonged to Mill Run. Daher alleged that Plaintiffs (both Gvozden and Tabet), while employed by Mill Run, diverted Mill Run business to separate companies and affected the profits of Mill Run. According to the complaint, Defendant Azzi caused and authorized Daher to accuse Plaintiffs of criminal acts. Specifically, Plaintiffs were accused of devising a scheme to transmit, by electronic communication, a signal to Mill Run containing "orders for airline tickets from Chicago M&M, knowing that Chicago M&M was not a travel agency." Based on Daher's statements, on June 18, 2008, Defendant Stewart signed a criminal complaint against Plaintiffs, and Plaintiffs were arrested.

Based upon Daher's statements, Detective Stewart investigated Plaintiffs' participation in the alleged criminal activity. During that investigation, Defendant Stewart interviewed Plaintiff Gvozden and reported that Gvozden "admitted" that she had fraudulently diverted sales from Mill Run in retaliation for denying her a raise. According to Plaintiff Gvozden's complaint, she never made that "admission." Plaintiff alleges that the Lincolnwood Defendants failed to properly investigate the allegations, and that, if they had, they would have determined that the claims made by Mill Run and its agents were false. According to the complaint, the failure to investigate was done in furtherance of a conspiracy to deprive Plaintiffs of their rights.

At the Grand Jury proceeding, Stewart testified regarding the allegations made to her by Daher as well as her interview with Plaintiff Gvozden. As a result of Stewart's testimony, Plaintiffs were indicted. Plaintiffs also allege that they were taken into custody and placed in jail cells, but neither complaint alleges the duration of their custody. At the conclusion of a criminal trial in May 2010 in the Circuit Court of Cook County, Plaintiffs were acquitted of all charges. Shortly thereafter, on June 10, 2010, Plaintiff Gvozden filed a five-count complaint in the Circuit Court of Cook County, alleging a variety of state and federal claims. Specifically, Gvozden alleges false arrest/false imprisonment (Count I), malicious prosecution (Count II), intentional infliction of emotional distress (Count III), conspiracy (Count IV), and "violation of 42 U.S.C. § 1983" (Count V).

On July 23, 2010, the Lincolnwood Defendants removed the case to federal court. Defendants also removed Plaintiff Nagi Tabet's case from the Circuit Court of Cook County. The cases were assigned to different judges, and on August 20, 2010, the Lincolnwood Defendants moved to have Plaintiff Tabet's case reassigned from Chief Judge Holderman to this Court on the basis of relatedness. The Court granted the motion on September 7, 2010. On August 20, 2010, both sets of Defendants filed motions to dismiss Plaintiff Gvozden's claims.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

The essential allegations in Counts I through V are that the Mill Run Defendants made statements to the police or in legal proceedings which resulted in the criminal prosecution of Plaintiffs, and that the Lincolnwood Defendants failed to investigate these allegations, resulting in the illegal arrest, prosecution, and continuing prosecution of Plaintiffs. Plaintiffs have alleged one federal claim-a § 1983 claim for false arrest/false imprisonment-and the remaining claims for false arrest, malicious prosecution, intentional infliction of emotional distress, and conspiracy arise under state law.

A.Plaintiffs' claims against the Mill Run Defendants

1. 42 U.S.C. § 1983

When a plaintiff brings a § 1983 claim against a defendant who is not a government official or employee, the plaintiff must show that the private person or entity acted under the color of state law. The requirement "sets the line of demarcation between those matters that are properly federal and those matters that must be left to the remedies of state tort law." See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Jackson v. Metro. Edison Co., 419 U.S. 345, 349-51 (1974). Both the Supreme Court and lower federal courts have acknowledged the difficulty of determining whether a private entity has acted under the color of state law. At its most basic level, the state action doctrine requires that a court find such a "close nexus between the State and the challenged action" that the challenged action "may be fairly treated as that of the State itself." Jackson, 419 U.S. at 351, 95 S.Ct. 449 (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176 (1972)).

In Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the Supreme Court wrote that "[t]he ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights 'fairly attributable to the State?'" Id. at 838 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). In most cases, the state actor is an officer or employee of state government, and it is easy to conclude that the person's actions are fairly attributable to the state. However, the Court has long recognized that, on some occasions, the acts of a private party are fairly attributable to the state because the party has acted in concert with state actors. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970) (observing that "a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act"); see also Case v. Milewski, 327 F.3d 564, 566 (7th Cir. 2003) (stating that "defendants may be found to act under color of state law when the defendants have conspired or acted in concert with state officials to deprive a person of his civil rights"). In Blum v. Yaretsky, 457 U.S. 991 (1982), the Supreme Court held that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Id. at 1004. The Supreme Court has set forth several tests for courts to employ in evaluating the "range of circumstances" that might constitute state action. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295 (2001); see also Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 823 (7th Cir. 2009) (noting that the four tests to determine whether a private party is a state actor are (1) the symbiotic relationship test (satisfied when private and public actors carry out a public function); (2) the state command and encouragement test (satisfied when the state requires the actions of the private actor); (3) the joint ...


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