Bontkowski v. First Nat. Bank of Cicero, No. 92-1654

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY and FLAUM, Circuit Judges, and MIHM; CUDAHY
Citation998 F.2d 459
PartiesRICO Bus.Disp.Guide 8332 Edward BONTKOWSKI, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF CICERO, Defendant-Appellee.
Docket NumberNo. 92-1654
Decision Date17 August 1993

Page 459

998 F.2d 459
RICO Bus.Disp.Guide 8332
Edward BONTKOWSKI, Plaintiff-Appellant,
v.
FIRST NATIONAL BANK OF CICERO, Defendant-Appellee.
No. 92-1654.
United States Court of Appeals,
Seventh Circuit.
Argued Jan. 25, 1993.
Decided July 1, 1993.
Rehearing and Suggestion for Rehearing En Banc Denied Aug. 17, 1993.

Page 460

William J. Stevens (argued), Chicago, IL, for plaintiff-appellant.

Stephen C. Voris (argued), Burke, Warren & Mackay, Chicago, IL, for defendant-appellee.

Before CUDAHY and FLAUM, Circuit Judges, and MIHM, District Judge. *

CUDAHY, Circuit Judge.

The plaintiff, Edward Bontkowski, filed a one-count action under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., against First National Bank of Cicero, alleging a pattern of racketeering that ultimately forced Bontkowski's trucking company into bankruptcy. First National moved to dismiss the case, arguing that Bontkowski's claim was time-barred by the four-year statute of limitations for civil RICO claims. The district court granted the motion, finding the claim barred under the "last predicate act" rule of RICO accrual. Applying a different accrual rule dictated by this court's decision in McCool v. Strata Oil Co., 972 F.2d 1452 (7th Cir.1992), we affirm.

I.

This case has its roots in a conspiracy charge involving the plaintiff, Edward Bontkowski, and seven other men who allegedly conspired to defraud the defendant, First National Bank of Cicero. Ronald Berkovitz, through a bank officer named William Giova, brokered bank loans to individuals in return for a fee taken from the loan proceeds. Bontkowski was one of Berkovitz's customers, and Berkovitz arranged for Bontkowski to obtain quick financing for his trucking company. On or about February 25, 1982, Berkovitz sent Bontkowski to Giova, where Bontkowski obtained two loans, for $370,000 and $100,000, respectively. Bontkowski signed a note for the $370,000 loan and presented as collateral bearer bonds he had received from Berkovitz. The bonds, issued by the Industrial Development Corp. of Corpus Christi, were stolen. Although Bontkowski was aware that a portion of the loans was to be paid to Berkovitz, he apparently did not know that the bonds he used as collateral were stolen.

Berkovitz and Giova had engaged in a series of such loan transactions before bank officers discovered that the bonds were stolen. Federal agents seized the bonds and the bank demanded the $470,000 in loans it had made to Bontkowski, forcing Bontkowski's business into bankruptcy. In April 1984, Berkovitz, Giova, Bontkowski and five others were indicted in a twenty-five count indictment for their involvement in the loan scheme.

Bontkowski pleaded guilty to two counts of bank fraud, admitting that when he applied for the two loans he knew that Berkovitz would receive part of the proceeds. Bontkowski received four-year concurrent sentences on each count. On appeal, this court remanded Bontkowski's bank fraud conviction on the grounds that the government was required to prove that Bontkowski knew the bonds were stolen, Bontkowski v. United States, 850 F.2d 306, 314-15 (7th Cir.1988), and the district court ultimately vacated that conviction. 1

Nearly two years after his conviction was vacated, Bontkowski filed this civil RICO action against First National on November 11, 1991. Bontkowski alleges that First National committed its first act of racketeering-

Page 461

--wire fraud--through its vice president, Giova, on February 26, 1982, when Giova phoned Bontkowski to inform him that he should come to the bank to process a loan he had previously applied for. Bontkowski maintains that Giova knowingly and fraudulently informed him that First National had checked with the Securities Information Center and that the bonds were legitimate collateral. Bontkowski's complaint alleges further acts of racketeering on March 26 and April 6, 1982, when Giova knowingly accepted stolen securities as collateral for loans that Berkovitz arranged for David Bruun, who is not a party to this action.

First National moved to dismiss the action under Federal Rule of Civil Procedure 12(b)(6) as barred by the statute of limitations. The district court granted the motion, concluding that Bontkowski's RICO action is untimely under the last predicate act rule 2 and that equitable tolling principles cannot salvage the suit. Bontkowski appeals.

II.

When considering a defendant's motion to dismiss, we view the complaint's allegations in the light most favorable to the plaintiff. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). We take as true...

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108 practice notes
  • Woods v. Southwest Airlines Co., No. 06 C 2203.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • October 18, 2007
    ...to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations contained within a c......
  • Doe v. City of Chicago, No. 94 C 4122.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 16, 1994
    ...all well-pleaded facts as true, and must draw all inferences in favor of the non-moving party. See Bontkowski v. First National Bank, 998 F.2d 459, 461 (7th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, the court considers whethe......
  • Freedom Mortgage Corp. v. Burnham Mortgage Inc., No. 03 C6508.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 14, 2010
    ...FACTS The facts alleged in the complaint are taken as true for purposes of the instant motion. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993). This action was originally filed in the United States District Court for the District of New Jersey on February 13, 2003......
  • St. John's United Church v. City of Chicago, No. 03 C 3726.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 16, 2005
    ...complaint as true and views the allegations in the light most favorable to the plaintiff. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993). The Court should not dismiss a complaint "unless it appears beyond all doubt that the plaintiff can prove no set of facts ......
  • Request a trial to view additional results
108 cases
  • Woods v. Southwest Airlines Co., No. 06 C 2203.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • October 18, 2007
    ...to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations contained within a c......
  • Doe v. City of Chicago, No. 94 C 4122.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 16, 1994
    ...all well-pleaded facts as true, and must draw all inferences in favor of the non-moving party. See Bontkowski v. First National Bank, 998 F.2d 459, 461 (7th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). In ruling on a motion to dismiss, the court considers whethe......
  • Freedom Mortgage Corp. v. Burnham Mortgage Inc., No. 03 C6508.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 14, 2010
    ...FACTS The facts alleged in the complaint are taken as true for purposes of the instant motion. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993). This action was originally filed in the United States District Court for the District of New Jersey on February 13, 2003......
  • St. John's United Church v. City of Chicago, No. 03 C 3726.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • November 16, 2005
    ...complaint as true and views the allegations in the light most favorable to the plaintiff. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir.1993). The Court should not dismiss a complaint "unless it appears beyond all doubt that the plaintiff can prove no set of facts ......
  • Request a trial to view additional results

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