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Nagi Tabet v. Mill Run Tours

March 28, 2010


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


This matter is before the Court on motions to dismiss the claims of Plaintiff Nagi Tabet 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 For the following reasons, the Court grants in part the Mill Run Defendants' motion to dismiss [18], grants in part the Lincolnwood Defendants' motions to dismiss [16], and dismisses Plaintiff Tabet's § 1983 false arrest/false imprisonment claim against all Defendants (Count V). The dismissals are without prejudice at this time. Plaintiff is given 28 days to replead if he believes that he can cure the deficiencies identified below. Should Plaintiff chose not to replead or be unable to cure the deficiencies, the remainder of Plaintiff's claims-all state law claims-will be remanded to the Circuit Court of Cook County.

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 Nagi Tabet worked for Mill Run from approximately 1988 to June 2006, when he went to work for a competitor. Plaintiff Merima Gvozden, who has filed a separate lawsuit, worked for Defendant Mill Run Tours, Inc. ("Mill Run") as a ticket agent from 1997 until June 2006, when she too went to work for one of Mill Run's competitors. 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 its New York office.

According to the complaint, sometime prior to June 18, 2008, Defendant Daher contacted Lincolnwood Police Detective (and Defendant) Schenita Stewart and alleged that Plaintiff Tabet had fraudulently and criminally converted money that belonged to Mill Run. Daher claimed that Plaintiff, while employed by Mill Run, diverted Mill Run business to separate companies and affected the profits of Mill Run. The complaint further states that Defendant Azzi caused and authorized Daher to accuse Plaintiff of criminal acts. Based on the statements and reports of the Mill Run Defendants, Tabet was arrested for theft and wire fraud on or about June 18, 2008. Plaintiff alleges that the Lincolnwood Defendants failed to properly investigate the allegations, and, 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 Plaintiff of his rights.

Plaintiff also alleges that he was taken into custody and placed in a jail cell, but the complaint does not set forth the length of time that he remained in custody. At the conclusion of a criminal trial in May 2010 in the Circuit Court of Cook County, Plaintiff Tabet was acquitted of all charges. Shortly thereafter, on June 11, 2010, Plaintiff Tabet filed a seven-count complaint in the Circuit Court of Cook County, alleging a variety of state and federal claims. Specifically, Tabet alleges false arrest/false imprisonment (Count I), malicious prosecution (Count II), intentional infliction of emotional distress (Count III), conspiracy (Count IV), 42 U.S.C. § 1983 claim for false arrest (Count V), breach of contract (Count VI), and conversion/theft (Count VII).

On July 23, 2010, the Lincolnwood Defendants removed the case to this Court. Defendants also removed Plaintiff Merima Gvozden's case. The cases were assigned to different judges, and on August 20, 2010, the Lincolnwood Defendants asked the Court to reassign Plaintiff Tabet's case from Chief Judge Holderman to this Court on the basis of relatedness. The Court granted the motion on September 7, 2010, and thus the Court has before it the motions to dismiss filed by both sets of Defendants.

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 Run Mill Defendants made statements to the police or in legal proceedings that resulted in the criminal prosecution of Plaintiff Tabet, and that the Lincolnwood Defendants failed to investigate those allegations, resulting in the illegal arrest, prosecution, and continuing prosecution of Plaintiff Tabet.*fn2

Plaintiff has alleged one federal claim-a § 1983 claim for false arrest/false imprisonment-and the remaining claims arise under state law.

A. Plaintiff Tabet's 42 U.S.C. § 1983 Claim Against the Run Mill Defendants

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 the lower federal courts have acknowledged the difficulty in 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 ...

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