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Marvin Worst, Audio Visual Productions, Inc v. City of Chicago

August 2, 2011

MARVIN WORST, AUDIO VISUAL PRODUCTIONS, INC., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendants' partial motions to dismiss. For the reasons stated below, the motions are granted.

BACKGROUND

Between 1984 and October 2005, Plaintiff Marvin Worst (Worst) allegedly worked for audio-visual companies that evolved into a company known as PSAV Presentation Services (PSAV), one of the Defendants in this case. As a Director of Event Technology for PSAV, Worst allegedly serviced the audio-visual needs of hotels. One of the hotels allegedly serviced by PSAV was Chicago Hilton and Towers (Hilton). In 2005 Worst allegedly resigned from PSAV and opened Plaintiff Audio Visual Productions, Inc. (AVP). Worst contends that after opening AVP he kept in touch with his former co-workers at PSAV and once or twice a year AVP would loan equipment to PSAV and AVP would borrow equipment from PSAV.

In September 2008, Mark Corso (Corso), the PSAV Director of Operations at the Hilton, who reported to Jim Skita, Director of Event Technology, allegedly called Worst and asked to borrow five plasma T.V. stands from AVP (Stands). Worst claims that he agreed to loan the Stands to PSAV and asked Corso if PSAV could loan AVP two projection screens in return (Screens). After Corso allegedly received permission from Skita, Corso allegedly advised Worst that PSAV would loan AVP the Screens. Worst allegedly provided the Stands to PSAV and on September 10, 2008, Worst allegedly went to the Hilton and picked up the Screens. Worst claims that he used the Screens for a job AVP was scheduled to perform at the Westin River North Hotel (Westin).

PSAV official Tim Walsh (Walsh), who was assigned to the Westin allegedly reported to his superiors that Worst was using what appeared to be PSAV screens. Without contacting Skita or Corso, PSAV officials allegedly initiated an investigation. Worst contends that he took the Screens from the Westin to an AVP warehouse for temporary storage until he could return them to Corso at the Hilton during normal business hours. On September 17, 2008, Defendant Kenneth Chiocchi (Chiocchi), the PSAV Regional Vice-President for the Chicago area, allegedly interrogated Skita regarding the matter and Skita allegedly told Chiocchi that he agreed to loan the Screens to AVP. On September 23, 2008, an AVP driver allegedly returned the Screens to PSAV at the Hilton.

On October 3, 2008, a private investigator hired by PSAV reported to Defendant Detective Dennis McGarry (McGarry) and Defendant Detective John Allan (Allan), detectives for Defendant City of Chicago (City), that Worst had stolen the Screens from PSAV. Worst contends that on October 10, 2007, McGarry and Allan met with Chiocchi and the Detectives knew or should have known that the Screens had already been returned by Worst. On October 15, 2008, McGarry and Allan allegedly went to Worst's home and placed him in the backseat of their squad car. McGarry and Allan allegedly asked Worst to let them search the AVP warehouse for missing PSAV equipment and allegedly indicated that if Worst did not agree, they would get a warrant and break down the door to the warehouse. Worst claims that based on a fear of the well-being of his business reputation and the safety of the equipment in AVP's warehouse, and under duress, he agreed to accompany Allan and McGarry to the AVP warehouse. Worst contends that he gave permission to Allan and McGarry to enter the warehouse, but only under duress.

Eventually, as many as five PSAV employees allegedly arrived at the AVP warehouse where Chiocchi interrogated Worst relating to alleged thefts. Plaintiffs allege that PSAV employees removed equipment from AVP warehouse and loaded equipment into PSAV trucks. Chiocchi also allegedly called business clients of AVP and told them that they should come to the AVP warehouse to determine if their equipment had been stolen. Worst was then taken to the police station and detained. Worst was allegedly charged with theft of the Screens and, at a bench trial, the judge in that case allegedly entered a directed verdict of not-guilty.

Worst and AVP, as Plaintiffs, include in their complaint claims for illegal search and seizure based on 42 U.S.C. § 1983 (Section 1983) (Count I), Section 1983 false arrest claims (Count II), Section 1983 malicious prosecution claims (Count III), Section 1983 excessive force claims (Count IV), a Section 1983 Monell claim (Count V), Section 1983 failure to intervene claims (Count VI), state law malicious prosecution claims (Count VII), state law assault and battery claims (Count

VIII), state law intentional infliction of emotional distress (IIED) claims (Count IX), state law negligent infliction of emotional distress (NIED) claims (Count X), state law negligence claims (Count XI), state law tortious interference with prospective business advantage claims (Count XII), respondeat superior claims (Count XIII), and indemnification claims (Count XIV).

PSAV has filed a partial motion to dismiss Counts VIII through XI and Count XIII of the complaint. Chiocchi has filed a partial motion to dismiss Counts IX through XI, and Count XIII of the complaint. Allan and McGarry (collectively referred to as "Detectives") have filed a partial motion to dismiss Counts I-X and Counts XIII-XIV of the complaint.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that ...


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