Cartolano v. Tyrrell

• Decision Date: 21 October 1976
• Docket Number: No. 75C4274.,75C4274.
• Citation: 421 F. Supp. 526
• Parties: Anthony T. CARTOLANO, Plaintiff, v. Arthur TYRRELL, Individually and as Sheriff of McHenry County, Illinois, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

421 F. Supp. 526

Anthony T. CARTOLANO, Plaintiff, v. Arthur TYRRELL, Individually and as Sheriff of McHenry County, Illinois, et al., Defendants.

No. 75C4274.

United States District Court, N. D. Illinois, E. D.

October 21, 1976.

COPYRIGHT MATERIAL OMITTED

Simon Stickgold, Woodstock, Ill., Harry Shriman, Chicago, Ill., for plaintiff.

James R. Schirott, Judge & Schirott, Ltd., Park Ridge, Ill., for defendant Tyrrell.

Samuel K. Skinner, U. S. Atty., J. E. Gubbins, Asst. U. S. Atty., Chicago, Ill., for defendants Higgins and Pierce.

William J. Scott, Atty. Gen., William L. Perlman, Asst. Atty. Gen., Chicago, Ill., for defendant Siragusa.

MEMORANDUM OPINION

MAROVITZ, District Judge.

Motions to Dismiss

I. Introduction

In this three-count action, plaintiff Anthony T. Cartolano charges the four named defendants and others with conspiracy to violate and actual violation of his constitutional rights through a systematic pattern of harassment, which allegedly included the abuse of process, unconstitutional search and seizure, malicious prosecution and defamation. According to plaintiff, the purpose and ultimate result of defendants' conduct was to drive him out of his fireworks design and manufacture business. For the alleged wrongs, plaintiff seeks compensatory and punitive relief under 42 U.S.C. §§ 1983 and 1985, and invokes the jurisdiction of this Court pursuant to 28 U.S.C. §§ 1331 and 1343. Pending before the Court are defendants' motions to dismiss pursuant to Rule 12(b) F.R.Civ.P. For the reasons set forth below we dismiss the federal defendants from this action, order defendant Tyrrell to answer or otherwise plead within twenty days and grant plaintiff twenty days to effect proper service on defendant Siragusa.

II. Factual Background

From the Second Amended Complaint it appears that plaintiff had been engaged in the business of fireworks manufacture and display since 1950, during which time he had developed "a good reputation for diligence, competence and integrity, among his many customers in the industry." Complaint ¶ 4. Plaintiff's fireworks plant had been located in Orland Township, Illinois from 1957 to March 6, 1972, on which date an explosion of unknown origin completely destroyed the plant, despite plaintiff's careful adherence to all applicable safety regulations. Thereafter, plaintiff attempted to reestablish his fireworks business in McHenry County, Illinois at a location which had previously been used as a United States Army munitions depot. In connection with his efforts, on March 13, 1973, plaintiff applied for a federal license to operate his business at his new proposed location. On June 9, 1973, while plaintiff's application was still pending, an explosion occurred at another fireworks plant in McHenry County, which resulted, according to plaintiff, in "enormous pressure . . on all agencies involved in the regulation of the fireworks business, to use extremest sic measures to divert the expected great tide of adverse public criticism." Complaint ¶ 8.

As a direct result of said alleged pressures, plaintiff alleges that: Complaint ¶ 9.

defendants, individually and in their respective official capacities, willfully and with malicious intent acting under color of office and under the laws of the State of Illinois, conspired and agreed, without reasonable cause, to deprive that group of persons engaged in the fireworks business, in the general area where plaintiff's business has been conducted, including Cook and McHenry Counties and surrounding counties, of equal protection of the laws and of the equal privileges and immunities thereunder, in violation of the Constitution and laws of the United States. In furtherance of said conspiracy, defendants agreed to harass those engaged in the industry in said area, by the harshest, most unreasonable and petty demands under the statutes and rules relating to said business; intending, by this means, or by any other means to administer a "final solution" to the industry, by causing those engaged therein to abandon their lawful occupations, and driving the fireworks business out of existence. In further pursuit of the conspiracy, and because plaintiff was a substantial member of the industry in said area, and as an object lesson to others in the industry, defendants conspired and agreed to employ any available device or method, no matter how unlawful, well-knowing that plaintiff had committed no violation of any law or regulation justifying such attacks, to accomplish the following objectives: (a) To concentrate upon plaintiff, by reason of his substantial position in the industry, as a target of continuous persecution and harassment; (b) to use every available device and means to deny plaintiff or his company the required licenses to conduct his business legally, and to procure the revocation of any licenses or permits which might be issued; (c) to confiscate and destroy the materials, supplies and inventory accumulated in his business; (d) to use any devious device to entice plaintiff to commit some criminal offense or offenses, which would then be prosecuted with utmost and unreasonable severity; (e) to destroy plaintiff's good name and reputation by the issuance of false and defamatory reports concerning plaintiff; (f) to persist without ceasing in the prosecution of the foregoing plan until plaintiff would, as a result of the exhaustion of his physical and emotional resources, be forced to abandon the fireworks industry; (g) to move as fast as possible, in furtherance of the conspiracy, to prevent plaintiff from conducting the large number of fireworks displays which defendants knew had been contracted and planned for July 4, 1973; and (h) to keep each other informed as to the actions to be taken by them respectively pursuant to the conspiracy, and to exchange all relevant data pertinent thereto.

III. The Federal Defendants

In November 1974, the United States commenced a forfeiture action seeking the condemnation of certain fireworks which had been seized from plaintiff's company by federal agents. United States v. Miscellaneous Explosive Material, 74 C 3326 (N.D. Ill.1974). In that action, plaintiff herein, Anthony Cartolano, intervened as a party defendant and counterclaimed against the United States, seeking damages of $100,000 for alleged due process violations stemming from the government's confiscation of his fireworks. By Order dated June 27, 1975, and pursuant to a settlement agreement between the parties, both the forfeiture action by the United States and the counterclaim by Cartolano were dismissed with prejudice by the late Judge Lynch of this Court.

Based upon the June 27, 1975 Order, defendants Higgins and Pierce ("the federal defendants"), who serve respectively as Regional Director and Regional Attorney of the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, have moved to dismiss this action insofar as it relates to them, on the grounds that plaintiff's claims against them are barred under the principles of res judicata.

In support of their position, the federal defendants argue that the allegations contained in plaintiff's complaint regarding the conduct of the federal defendants is no more than a slightly more detailed recitation of the same basic due process allegations which were contained in the counterclaim in 74 C 3326, and since those basic allegations were dismissed with prejudice in the prior action, plaintiff should be barred from relitigating those claims. We agree.

The legal prerequisites to the application of the doctrine of res judicata are: (1) the existence of a final judgment rendered on the merits; (2) a subsequent action between the same parties or those in privity with them; and (3) the presence of the same claim or demand. See, e. g., Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069 (1927); Saylor v. Lindsley, 391 F.2d 965 (2nd Cir. 1968). Where all of these elements are present, the doctrine of res judicata operates to bind the parties "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195 (1876); Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948).

The law appears to be clear that a "dismissal with prejudice is `as conclusive of the rights of the parties as an adverse judgment after trial, being res judicata of all questions which might have been litigated in the suit.'" Phillips v. Shannon, 445 F.2d 460, 462 (7th Cir. 1971). See also, Smoot v. Fox, 340 F.2d 301, 305 (6th Cir. 1964); Glick v. Ballentine Produce, Inc., 397 F.2d 590, 593 (8th Cir. 1968). And, as noted by the Seventh Circuit, this rule applies with equal force to dismissals with prejudice which result from settlements or compromises between the parties. Kraly v. National Distillers & Chemical Corp., 502 F.2d 1366, 1368 (7th Cir. 1974). See also, Stuyvesant Insurance Co. v. Dean Construction Co., 254 F.Supp. 102 (S.D.N.Y.1966). Thus, we can fairly characterize the Order dismissing the counterclaim in 74 C 3326 as a final judgment on the merits.

As to the second requirement of the test, insofar as plaintiff's complaint relates to the federal defendants, it is clearly between the same parties or those in privity with the parties involved in 74 C 3326. Further, the fact that plaintiff herein entered the previous action as as intervenor does not excuse him from the binding effect of that final judgment, see, e. g., Boys Town, U.S.A., Inc. v. World Church, 349 F.2d 576, 578 (9th Cir. 1965); Hancock Financial Corp. v. Federal Savings & Loan Insurance Corp., 360 F.Supp. 1125, 1126 (D.Ariz.1973), aff'd., 492 F.2d 1325 (9th Cir. 1974), particularly since the Court's Order in the prior action specifically dismissed the intervenors' claims with...