Stamatiou v. United States Gypsum Company, 73 C 3257.

• Decision Date: 16 June 1975
• Docket Number: No. 73 C 3257.,73 C 3257.
• Citation: 400 F. Supp. 431
• Parties: Dimitri STAMATIOU, Plaintiff, Counter defendant, v. UNITED STATES GYPSUM COMPANY, a corporation, et al., Defendants, Counter-plaintiffs.
• Court: U.S. District Court — Northern District of Illinois

400 F. Supp. 431

Dimitri STAMATIOU, Plaintiff, Counter defendant, v. UNITED STATES GYPSUM COMPANY, a corporation, et al., Defendants, Counter-plaintiffs.

No. 73 C 3257.

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

June 16, 1975.

COPYRIGHT MATERIAL OMITTED

George E. Faber, James R. Bellmann, Chicago, Ill., for plaintiff.

Edward S. Silber, Ward A. Meythaler, Price, Cushman, Keck, Mahin & Cate, Chicago, Ill., for defendants.

MEMORANDUM DECISION

MARSHALL, District Judge.

Pending before the court for decision are cross-motions for summary judgment and the plaintiff's motion to dismiss the defendants' counterclaim for failure to state a claim upon which relief can be granted. Previously, the defendants filed a motion to dismiss the plaintiff's four-count complaint, which was denied in a memorandum order dated November 1, 1974. That order set out the facts surrounding the plaintiff's complaint and, therefore, no further delineation is necessary.

The Defendants' Motion for Summary Judgment

When a party presents a motion for summary judgment the burden is upon him to establish that the facts which entitle him to judgment are not in dispute. 6 J. Moore, Federal Practice, ¶ 56.17 11, at 2509, 2510 (2d ed. 1974). Furthermore, the evidence must be viewed in the light most favorable to the party opposing the motion, and summary judgment should be granted only when the pleadings, depositions, affidavits, and admissions disclose that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See, e. g., Crest Auto Supplies, Inc. v. Ero Manufacturing Co., 360 F.2d 896, 899-900 (7th Cir. 1966); Mintz v. Mathers Fund, 463 F.2d 495 (7th Cir. 1972). With these principles in mind, the court is persuaded that no genuine issue of material fact exists under Count I and that the defendants are entitled to summary judgment.

In the prior memorandum order it was concluded that an act forbidden by a statute cannot be the foundation of a legal contract in Illinois. Longenecker v. Hardin, 130 Ill.App.2d 468, 474, 264 N.E.2d 878, 880-81 (1st Dist. 1970). The defendants' contention is that the alleged contract between United States Gypsum Company and Stamatiou is a clear violation of the Illinois theft statute. Ill.Rev.Stat., ch. 38, § 16-1 defines theft as follows:

A person commits theft when he knowingly:

* * * * * *

(c) Obtains by threat control over the property of the owner; . . . and

* * * * * *

(d)(1) Intends to deprive the owner permanently of the use or benefit of the property; . . .

The term "threat" is defined at Ill.Rev. Stat., ch. 38, § 15-5 (1973):

As used in this Part . . ., "threat" means a menace, however communicated, to:

* * * * * *

(j) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; . . .

The defendants contend that Stamatiou committed theft when he obtained control over money belonging to USG under a threat to withhold information relating to its legal claim to the engineering documents unless the money was paid.

No Illinois cases have been discovered by counsel or the court that discuss the applicable provisions of the Illinois theft statute. Indiana, however, has a similar theft statute, which was interpreted by one Indiana court in a manner highly supportive of the defendants' position.

In Blackwood v. State, 299 N.E.2d 622 (Ind.App.1973), the defendant-appellant was convicted of attempted control of property by theft. At trial the evidence disclosed that Blackwood learned of the location of a stolen coin collection and offered to inform the owner of its whereabouts if he would pay the defendant $5,000. The owner called the police who were subsequently able to arrest the defendant. The court concluded, viewing the evidence in the light most favorable to the state, that the conviction should be affirmed. The court reasoned that Blackwood attempted to obtain money from the collection's owner by threatening to withhold information as to its location unless the money demanded was paid. See Ind.Ann.Stat. 10-3040(18)(i), 10-3041(1) (Burns' 1973 Supp.).

Blackwood is closely analogous to the present case. And although the court was reviewing the evidence in the light most favorable to the state, the analysis of the statute is logical and persuasive. Stamatiou obtained control over $25,000 in cash and and a certified check in the same amount in exchange for information concerning the location of engineering documents to which USG had a legal claim. The crux of the controversy, however, is whether Stamatiou communicated a threat to withhold the information unless the defendants paid the demanded sum of $100,000. After reviewing the transcripts of the various telephone communications and the plaintiff's deposition, there can be no dispute that Stamatiou had no intention of providing USG with any information or aid in the recovery of the drawings unless he was paid. See, e. g., phone transcripts at 2-3, 16-17, 45 (November 2, 3, 1973); F.B.I. phone transcripts at 6, 7 (November 5, 1973).¹ Furthermore, it is undisputed that during the entire period of negotiations Stamatiou refused to identify himself or meet with USG representatives unless the money was paid.

The plaintiff has offered no evidence by affidavit or otherwise to contradict the above version of the facts. Instead, he suggests three reasons why summary judgment is inappropriate. The first argues that he never had control over the documents belonging to USG and, therefore, there could be no violation of the theft statute. What this argument misconceives is that the theft occurred by obtaining control over the money and not the drawings.

The plaintiff next argues that his conduct did not violate the theft statute because contracts to sell information are not invalid in Illinois. In support of this proposition the plaintiff relies heavily on Rieman v. Morrison, 264 Ill. 279, 106 N.E. 215 (1914). Although the facts of Rieman are unclear, it appears that Rieman was hired to recover lost property. But even if the case is factually apposite, it was decided long before the present Illinois theft statute was enacted. And it is against this statute that the contract must be evaluated. See Rieman v. Morrison, 264 Ill. at 286, 106 N.E. at 216.

The plaintiff finally argues that there was no theft because USG has never established that the drawings were its property. Throughout the course of this case, however, the parties have asserted that the documents did belong to USG and that they had been converted by Universal Gypsum. Even assuming that, for some reason not in the record, USG did not have perfect title to the drawings, both Stamatiou and the defendants reasonably believed USG had a legal claim to them. This belief alone would be sufficient to invite the sanctions of the theft statute. The purpose of the statute is not to determine the validity of claims, but to prohibit individuals from threatening to withhold information or testimony unless property is given in exchange for information or testimony.

In summary, the plaintiff obtained control over property of USG, money and a certified check, by threatening to withhold information and testimony concerning the legal claim of USG to the engineering documents that were in the possession of Universal Gypsum. Furthermore, the plaintiff intended to permanently deprive USG of the money and check. Therefore, as a matter of law, since the foundation of the alleged contract was an agreement in violation of the Illinois theft statute, the contract is unenforceable. The defendants' motion for summary judgment on Count I of the complaint is granted.

Count III of the complaint, which seeks damages for alleged malicious interference with plaintiff's contract, is similarly bottomed on the agreement alleged in Count I. Since the agreement is unenforceable, there could be no malicious interference with rights created by it. Accordingly, defendants are entitled to summary judgment on Count III of the complaint.

The defendants have also moved for summary judgment on Count II of the complaint, which alleges that the defendants recorded a number of telephone calls between Stamatiou and themselves in violation of Ill.Rev.Stat., ch. 38, § 14-2 (1973), and two federal eavesdropping statutes. 18 U.S.C. § 2511; 47 U. S.C. § 605 (1970). The plaintiff seeks actual and punitive damages for the alleged recordings. Ill.Rev.Stat., ch. 38, § 14-6 (1973); 18 U.S.C. § 2520 (1970).

Reviewing the materials submitted, it is immediately apparent that there are no issues of fact regarding the recording of the conversations. The affidavit of Thaddeus Snell reveals that the plaintiff had telephone conversations with USG representatives on five different dates. The first call which was on October 30, 1973, was not recorded. After that call, however, Mr. Snell called the F.B.I. and informed agent Treviranus of the anonymous call and its contents. The next day, October 31, Treviranus called Snell, telling him that a possible violation of the Hobbs Act had occurred, but that more information revealing exactly what was said was needed. In response to the request for more precise information USG officials decided to record further conversations with the anonymous caller. Thereafter, recordings of phone conversations were made on November 2, 3 and 5. There is no evidence suggesting that the F.B.I. specially requested that the calls be recorded.

The situation changed, however, on November 5, when F.B.I. special agent Kusserow informed USG that he had been placed in charge of the investigation. Kusserow went to the offices of USG and proceeded to record two calls from the plaintiff on the same date. These conversations, as well as those recorded by USG, were transcribed and submitted as evidence on the pending motions.

Review of the federal statutes and cases decided pursuant to them reveal that defendants are entitled to...