Bressner, Kermit J. v. Ambroziak, Shrilee ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2768
KERMIT J. BRESSNER,
Plaintiff-Appellant,
v.
SHIRLEE AMBROZIAK, DENNIS AMBROZIAK,
AMZO ZIP MAILING SERVICES, INC., an
Illinois corporation, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2537—Joan Humphrey Lefkow, Judge.
____________
ARGUED JANUARY 13, 2004—DECIDED AUGUST 13, 2004
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Over twenty years ago, Kermit J.
Bressner sold his business to Dennis Ambroziak for cash and
a note for $342,000 for the balance due. Under Ambroziak’s
ownership the business failed, and Ambroziak never paid
Bressner any money on the note. When Ambroziak filed for
bankruptcy, the debt was not discharged. All of Bressner’s
attempts to collect have failed. Ambroziak claims he has no
2 No. 03-2768
assets and has had no income for many years, but
Ambroziak’s wife owns a successful business that Bressner
claims Ambroziak manages and from which he derives many
benefits. Bressner sued Ambroziak, his wife, and the busi-
ness in federal court. He now appeals from a series of decisions
of the district court dismissing his claim against the defen-
dants for violation of the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”), as
well as claims under Illinois law for civil conspiracy and
violation of the Illinois Uniform Fraudulent Transfer Act,
740 ILCS 160/1 et seq. (“UFTA”). The district court also
rejected Bressner’s request that a constructive trust be
imposed upon the assets of two of the defendants, Shirlee
and Dennis Ambroziak. Finally, Bressner also appeals the
decision of the district court to deny his motion to file a
third amended complaint. We affirm.
I.
The facts of this case are drawn from Bressner’s second
amended complaint. Bressner primarily appeals from the
district court’s dismissal of the complaint for failure to state
claim upon which relief may be granted. Fed. R. Civ. P.
12(b)(6). Accordingly, we accept as true all well-pleaded
facts alleged in the complaint and draw all reasonable
inferences in Bressner’s favor. Dixon v. Page, 291 F.3d 485,
486, (7th Cir. 2002).
In March, 1981, Bressner sold his business, Jay’s TV, to
Dennis Ambroziak for cash and a $342,000 note secured
largely by the existing inventory of Jay’s TV. No payments
have ever been made on this note. Presumably, Bressner did
not record a security interest in the inventory, and the assets
of Jay’s TV were seized to satisfy a third party’s loan to
Dennis.
No. 03-2768 3
On June 30, 1982, Dennis and his wife, Shirlee, filed a joint
Chapter 7 petition in bankruptcy. Through an adversary
proceeding against Dennis (but not Shirlee), Bressner
obtained, in 1985, a judgment of nondischargeability on the
1981 note. Bressner estimates that, with interest, Dennis’s
debt to him is now approximately $1.2 million.
Sometime after the Ambroziaks’ discharge from bankruptcy
(other than Dennis’s debt to Bressner), Shirlee started her
own business, Amzo Zip Mailing Services, Inc. (“Amzo”).
Amzo is an Illinois corporation and Shirlee is its sole share-
holder. Bressner alleges that Amzo is the successor to a
business started by Dennis but unrelated to Jay’s TV. Accord-
ing to Bressner, until starting Amzo, Shirlee had no experi-
ence in the management or operation of a business. Amzo was
initially run out of the basement of the Ambroziaks’ 3.5 acre
home in Woodstock, Illinois (the “Bull Valley Property”).
After the couple’s bankruptcy, Shirlee purchased the Bull
Valley property in her own name for $470,000 and made
substantial improvements to the property after that. The
1
property remains solely in her own name.
Amzo has been a successful business. The company now
employs approximately 30 people. Since 1996, Amzo has
operated out of the Bull Valley property as well as a 46,300
square foot commercial building in Chicago (the “Chicago
Property”). The Chicago Property is held in trust with
Harris Palatine, N.A. as trustee and Shirlee as the sole
beneficiary.
The Ambroziaks’ financial affairs and the management of
Amzo, according to Bressner, are structured to prevent
1
The property was held in trust, with Shirlee as the sole bene-
ficiary, for a period of time, but title has apparently been con-
veyed back to Shirlee.
4 No. 03-2768
Bressner from collecting on the outstanding debt. Appar-
ently, Dennis has no income or assets upon which Bressner
can collect. Bressner maintains, however, that the success of
Amzo is due to the work and efforts of Dennis. According to
Bressner, Dennis is the moving force behind the company and
the de facto manager of the company’s affairs. Although
Dennis does not receive a salary, he has access to a company
expense account and, of course, is married to, resides with,
and enjoys the financial support of Shirlee, whom Bressner
refers to as the nominal head of Amzo.
Since starting Amzo, Shirlee has applied for and received
loans and lines of credit from several banks. In these appli-
cations, Shirlee represented that she enjoyed a monthly
income of $12,500 and that she was the sole shareholder,
officer, and director of Amzo. She has not, in any of these
applications, revealed the extent of Dennis’s involvement in
the company or, as Bressner alleges, that Dennis is the mov-
ing force behind the operation and management of Amzo.
A. Procedural Background
In April 2002, Bressner filed his first complaint in this
lawsuit. In that complaint Bressner raised a RICO claim as
well as state law claims of civil conspiracy and fraudulent
transfer. Bressner also requested that a constructive trust be
imposed on the Ambroziaks’ joint assets. The district court
dismissed Bressner’s RICO claim, finding that the facts did
not establish the requisite predicate act of bank fraud.
Because Bressner had not pleaded diversity jurisdiction, the
district court also dismissed, with leave to amend,
Bressner’s complaint in its entirety. See 28 U.S.C. § 1367.
Bressner returned to the district court again with a
“Second Amended Complaint” in January 2003. In that com-
plaint, Bressner, asserting diversity jurisdiction, raised only
No. 03-2768 5
his state law claims. In response to the defendants’ Rule
12(b)(6) motion, the district court, in May 2003, dismissed
this complaint. In a ruling in June 2003, the court also de-
nied Bressner’s motion for leave to file a “Third Amended
Complaint.” This complaint would have added a request for
a declaratory judgment on the theory that Shirlee and Amzo
acted as alter egos of Dennis in his attempt to shield assets
from his creditors. This appeal followed.
II.
In this appeal, Bressner challenges the dismissal of his
RICO claim, his state law claims, and the denial of his re-
quest for the imposition of a constructive trust. Bressner also
appeals the denial of his motion for leave to file a third
amended complaint. We turn first to Bressner’s RICO claim.
A. The RICO Claim
At the heart of his first amended complaint and this ap-
peal is Bressner’s claim that the Ambroziaks, through Amzo,
have engaged in a pattern of racketeering with the ultimate
aim of concealing from Dennis’s creditors the true nature
Dennis’s role in, and the assets he has derived from, Amzo.
To establish a RICO claim, a plaintiff must show “ ‘(1) con-
duct (2) of an enterprise (3) through a pattern (4) of racke-
teering activity.’ ” Lachmund v. ADM Investor Servs., Inc., 191
F.3d 777, 783 (7th Cir. 1999) (quoting Vicom, Inc. v. Harbridge
Merchant Servs., Inc., 20 F.3d 771, 778 (7th Cir. 1994)). “A
pattern of racketeering activity consists, at a minimum, of
two predicate acts of racketeering committed within a ten-
year time period.” Goren v. New Vision Int’l, Inc., 156 F.3d
721, 728 (7th Cir. 1998).
6 No. 03-2768
Bressner alleged as the predicate acts bank fraud as
defined by 18 U.S.C. § 1344. Whether Bressner has properly
alleged claims of bank fraud by the Ambroziaks is central to
determining whether Bressner has a RICO claim and, as we
shall see, whether many of the rest of Bressner’s claims can
stand. Under federal law, bank fraud involves a scheme or
artifice:
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the cus-
tody or control of, a financial institution, by means of false
or fraudulent pretenses, representations, or promises.
18 U.S.C. § 1344. Thus, to commit bank fraud, the
Ambroziaks must have developed a scheme or artifice to
defraud a bank or to gain property from a bank through
false or fraudulent pretenses, representations, or promises.
Bressner goes to great lengths in his original complaint in
an attempt to show how Shirlee Ambroziak’s two bank
transactions amounted to bank fraud. If so, such fraud could
be labeled as two of the predicate acts necessary to establish
a pattern of racketeering activity. But, as the district court
succinctly noted, “[i]t is obvious that no bank or financial
institution has been defrauded by the Ambroziaks.” The court
went on to note that the loans were made to Amzo, “to
which Dennis is a legal stranger.” Amzo was not liable for
Dennis’s debts nor was Dennis liable for Amzo’s debts.
The district court properly dismissed Bressner’s RICO
claim. An essential element of bank fraud is “intent to de-
ceive a bank in order to obtain from it money or other prop-
erty.” United States v. Lane, 323 F.3d 568, 583 (7th Cir. 2003)
(emphasis added). Bressner claims that the Ambroziaks
conspired to deceive the lending banks by not disclosing
that it was Dennis, not Shirlee, who was the driving force
No. 03-2768 7
that made Amzo a successful business. By so bestowing
upon Shirlee all of the benefits of Dennis’s apparent bus-
iness talent, Dennis was purposely left with no income or
assets in his name that Bressner could attach to satisfy his
debt. But the bank fraud statute isn’t designed to protect
Bressner, it is designed to protect banks. Cf. United States v.
Davis, 989 F.2d 244, 246-47 (7th Cir. 1993) (“[T]he purpose of
[the bank fraud statute] is not to protect people who write
checks to con artists but to protect the federal government’s
interest as an insurer of financial institutions.”); see also
United States v. Jacobs, 117 F.3d 82, 92 (2d Cir. 1997) (“In
order for the bank fraud statute to apply, the fraud must be
against the bank.”). Regardless of what Dennis may have
done behind the scenes, as far as the banks were concerned,
Shirlee obtained the loans to Amzo on her own. As the
district court noted, to say the least “Dennis and Shirlee’s
conduct may not be admirable.” Keeping Dennis asset- and
income-free while Shirlee and Amzo prosper prevents Bressner
from collecting valid obligations. The scheme does not,
however, defraud the banks that do business with Shirlee
and Amzo. In short, the rather obvious scheme of keeping
Dennis asset-free while he benefits Shirlee, Amzo and
(indirectly) himself may violate some legal standard, but it
is not bank fraud.
B. The Civil Conspiracy Claim
Bressner’s second amended complaint alleged a claim of
civil conspiracy under Illinois law. Specifically, the com-
plaint alleged that the Ambroziaks conspired to conceal the
true nature of Dennis’s contribution to, equity in, and the
management of, Amzo and to conceal his true earnings and
income by having them falsely appear to be Shirlee’s earn-
ings and income. The Ambroziaks argue that, even assum-
ing Bressner may have properly alleged an agreement to
8 No. 03-2768
cause him injury, Bressner has not alleged an overt tortious
act or unlawful conduct in furtherance of the conspiracy as
required under Illinois law.
Under Illinois law, in order to allege a claim for civil con-
spiracy, a plaintiff must allege (1) an agreement; (2) by two
or more persons; (3) to perform an overt act or acts; (4) in
furtherance of the agreement/conspiracy; (5) to accomplish
an unlawful purpose or a lawful purpose by unlawful
means; (6 ) that causes injury to another. Nichols Motorcycle
Supply, Inc. v. Dunlop Tire Corp., No. 93-C-5578, 1994 WL
698486, at *3 (N.D. Ill. Dec. 12, 1994). The overt act or acts
must be tortious or unlawful acts. Adcock v. Brakegate, Ltd.,
645 N.E.2d 888, 894 (Ill. 1994). Bressner has not properly
alleged a state claim of civil conspiracy. The overt acts that
Bressner alleged in his second amended complaint were the
completion of the loan applications without reference to
Dennis’s role in Amzo. As discussed above, however, these
applications were not tortious or unlawful. Bressner has not,
therefore, alleged the necessary tortious or unlawful overt
act and his claim of civil conspiracy must fail.
C. Fraudulent Transfer
Bressner also alleges a fraudulent transfer by Dennis un-
der the UFTA. Section 5(a)(1) of UFTA states that:
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor, whether the creditor’s claim
arose before or after the transfer was made or the obli-
gation was incurred, if the debtor made the transfer or
incurred the obligation:
(1) with actual intent to hinder, delay, or defraud
any creditor of the debtor;
No. 03-2768 9
740 ILCS 160/5(a). A transfer is defined by UFTA as “every
mode, direct or indirect, absolute or conditional, voluntary
or involuntary, of disposing of or parting with an asset or an
interest in an asset, and includes payment of money, release,
lease, and creation of a lien or other encumbrance.” 740
ILCS 160/2(l). The UFTA defines an asset as “property of a
debtor. . . .” 740 ILCS 160/2(b). Further, property is defined
by the UFTA as “anything that may be the subject of
ownership.” 740 ILCS 160/2(j).
Bressner’s problem is that he has not identified assets Dennis
has transferred to Amzo. Bressner argues that Dennis
engaged (and continues to engage) in fraudulent transfers
whenever he performs services for Amzo without receiving
compensation. The property being transferred, Bressner
argues, is the reasonable value of the services he provides to
Amzo. As the Ambroziaks point out, however, Bressner
provides no legal support, and this court has found none,
for the conclusion that Illinois law (or any other jurisdiction)
regards the value of services provided as an asset subject to
transfer under the UFTA.
D. Imposition of a Constructive Trust
Bressner also argues that the district court erred when it
denied his request that a constructive trust be imposed on
Shirlee and Amzo’s assets. Illinois limits the imposition of
a constructive trust to situations where there have been
“specific [acts] of wrongdoing . . . such as fraud, breach of
fiduciary duty, duress, coercion or mistake.” Suttles v. Vogel,
533 N.E.2d 901, 905 (Ill. 1998). Bressner bases his request for
a constructive trust on the allegations of bank fraud dis-
cussed above. Because, however, we have found those
allegations deficient, we agree with the district court that
there is no basis upon which to support a constructive trust.
10 No. 03-2768
E. The Motion for Leave to Amend
Bressner’s final argument is that the district court erred
when it failed to grant his motion for leave to amend his
complaint a third time. Bressner sought to amend his com-
plaint to argue that Amzo was no more than Dennis’s corp-
orate alter ego. The motion was made after the district court
had dismissed Bressner’s second amended complaint with
prejudice and had entered an order terminating the case.
We review a district court’s denial of a motion for leave to
amend for an abuse of discretion. Federal Rule of Civil
Procedure 15(a) presumes that, in most cases, motions for
leave to amend be liberally granted. This court has recog-
nized, however, that this presumption is reversed in cases,
such as here, where a plaintiff seeks to amend a complaint
after judgment has been entered and a case has been dis-
missed. First Nat’l Bank v. Continental Ill. Nat’l Bank, 933 F.2d
466, 468 (7th Cir. 1991) (citing 6 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1489 (2d ed. 1990)); see also Doe v. Howe Military
School, 227 F.3d 981, 989 (7th Cir. 2000) (recognizing that
although motions for leave to amend are to be liberally
granted “ ‘justice may require something less in post-judg-
ment situations than in pre-judgment situations’ ”) (quoting
Twohy v. First Nat’l Bank, 758 F.2d 1185, 1196 (7th Cir. 1985)).
Leaving aside the fact that both parties neglected to dis-
cuss the standard of review for this issue, see Fed. R. App. P.
28(a)(9)(B) & 28(b)(5), Bressner did not offer the district
court, and does not offer this court, any reason he should be
permitted to amend his complaint after a judgment has
already been entered. Illinois Conf. of Teamsters and Employers
Welfare Fund v. Steve Gilbert Trucking, 71 F.3d 1361, 1368 (7th
Cir. 1995) (“A party seeking amendment at that stage of the
proceedings must provide the district court with a good
reason to grant its motion.”); Harris v. City of Auburn, 27
F.3d 1284, 1287 (7th Cir. 1994) (“At this juncture [after a
No. 03-2768 11
judgment has been entered], the party making a Rule 59(e)
motion so that it can amend its complaint had better pro-
vide the district court with a good reason to grant its
motion.”); First Nat’l Bank, 933 F.2d at 468 (“First National had
to have a good reason for so belated an amendment. It had
none.”). Without offering the district court, or this court, any
reason (never mind a good reason) an amendment should
have been permitted so late in the game, we cannot say the
district court abused its discretion. Cf. Doe, 227 F.3d at 990(“[P]leading is not like playing darts: a plaintiff can’t keep
throwing claims at the board until she gets one that hits the
mark.”).
III.
Dennis Ambroziak owes Kermit Bressner a significant
sum of money. The facts we have been presented (which we
must here accept as true) show that Dennis has manipulated
his way out of paying this debt for two decades. We, like the
district court, do not find his conduct admirable. The district
court did not err, however, in dismissing the Bressner’s
complaint. Further, the district court did not abuse its
discretion in denying a post-judgment motion to amend.
The district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-13-04