Independent Trust Corp. v. Stewart Information Services Corp.

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2108
INDEPENDENT T RUST C ORPORATION,
an Illinois corporation now in receivership,
Plaintiff-Appellant,
v.
S TEWART INFORMATION S ERVICES C ORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-04430—John W. Darrah, Judge.
A RGUED S EPTEMBER 27, 2011—D ECIDED JANUARY 6, 2012
Before F LAUM, K ANNE, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. This appeal arises from a
series of business dealings that ended in 1995. We
conclude that the district court properly dismissed the
complaint as barred by the statute of limitations. The
Illinois doctrine of adverse domination does not apply
to the claims against the defendants here and therefore
did not toll the statute of limitations.
2 No. 11-2108
In the 1980s and 1990s, Intercounty Title Insurance Co.
of Illinois was in the business of issuing title insurance
policies and providing real estate closing services. From
1984 through 1995, it served as the exclusive Chicago-
area agent for defendants Stewart Information Services
Corporation, Stewart Title Guaranty Company, and
Stewart Title Company (collectively, “Stewart”).
Intercounty eventually grew to become Stewart’s
largest independent agent. As part of its business,
Intercounty created and managed an escrow account.
Stewart contractually agreed to insure the escrow
funds that Intercounty managed as Stewart’s agent.
But Intercounty was not profitable. The company was
run and controlled by Laurence Capriotti and Jack
Hargrove, who decided to invest the real estate escrow
funds with which Intercounty was entrusted in various
investment schemes. While waiting for the payoff on their
“investments” — we use the term loosely — Capriotti and
Hargrove used incoming escrow funds to pay off old
escrow obligations. In other words, they ran the
Intercounty escrow account as a Ponzi scheme.
Their investments failed. By the end of 1989, there was
a $26 million shortfall in the Intercounty escrow ac-
count. When Stewart learned of the shortfall, it pres-
sured Intercounty to bring the account into balance.
Stewart also allowed Intercounty to fire its auditors.
Capriotti and Hargrove were also directors of the
plaintiff in this case, Independent Trust Corporation
(known here as “InTrust”). InTrust was the trustee for
nearly 20,000 trust accounts, primarily individual retire-
No. 11-2108 3
ment accounts, collectively valued at over $1 billion. To
fill the hole in the Intercounty escrow account, Capriotti
and Hargrove began looting InTrust. They transferred
tens of millions of dollars in InTrust account holder
funds to Intercounty, which used the transferred funds
to pay amounts owed from its escrow account. Some of
this money went to pay Stewart policyholders, and
some of it went to pay Stewart directly.
Stewart therefore was a direct and indirect beneficiary
of the Intercounty/InTrust arrangement. If Intercounty
had not been able to make its escrow payments, Stewart,
as the insurer of the escrow funds, would have had to
cover the losses. But between December 1990 and the
end of 1995, when Intercounty terminated its relation-
ship with Stewart, $40.9 million of InTrust account
holder funds had been transferred to the Intercounty
escrow account to cover Stewart’s insureds. As much as
$27 million of InTrust account-holder funds were trans-
ferred directly to Stewart or to third parties for
Stewart’s benefit.
The Illinois Commissioner of the Office of Banks and
Real Estate (“OBRE”) began investigating InTrust’s rela-
tionship with Intercounty in 1994, but it was not until
February 2000 that the OBRE learned that the funds
InTrust had transferred to Intercounty were missing. A
few months after that, on April 14, 2000, the OBRE took
control of InTrust and placed it in receivership.
PricewaterhouseCoopers LLP was appointed receiver,
and on behalf of InTrust, pursued civil suits against
Capriotti, Hargrove, Intercounty, and ITI Enterprises, Inc.
4 No. 11-2108
(another Capriotti and Hargrove company). The Receiver
obtained judgments against these defendants in the
amount of $68 million. The judgment against Hargrove
was overturned on appeal, but the Receiver settled its
claims against Hargrove for $50 million.1
This background brings us to this case, and this ap-
peal. On July 15, 2010, the Receiver filed a five-count
complaint against Stewart on behalf of InTrust. Its claims
included money had and received (Count I), unjust enrich-
ment (Count II), vicarious liability for Intercounty’s
tortious conduct (Count III), aiding and abetting breach
of fiduciary duty (Count IV), and conspiracy (Count V).
Stewart moved to dismiss for failure to state a claim
under Rule 12(b)(6), arguing that the Receiver’s claims
were barred by the applicable statute of limitations.
The Receiver relied on the doctrine of adverse domina-
tion to argue that the statute of limitations was tolled at
all times before April 2000. Under Illinois law, this
doctrine is defined as “an equitable doctrine that tolls
the statute of limitations for claims by a corporation
against its officers and directors while the corporation
is controlled by those wrongdoing officers or directors.”
Lease Resolution Corp. v. Larney, 719 N.E.2d 165, 170 (Ill.
App. 1999). The doctrine also applies to claims against
other parties who are co-conspirators of the wrong-
1
Capriotti and Hargrove were also indicted on federal crim-
inal charges. Capriotti pled guilty in June 2005, admitting that
he and Hargrove had participated in a scheme to defraud
InTrust. Hargrove went to trial and was convicted on ten
counts of the indictment, which included allegations that he
had participated in a scheme to defraud InTrust.
No. 11-2108 5
doing directors. See id. at 172. The district court granted
Stewart’s motion and dismissed the Receiver’s claims
on the statute of limitations defense. The Receiver
moved to alter or amend the judgment under Rule 59(e),
and the district court denied its motion.
The Receiver appeals. On the merits, it argues first
that the district court erred by holding that the adverse
domination doctrine does not apply to non-conspirators
of wrongdoing directors, and second that even if the
district court’s holding is correct, the complaint suf-
ficiently alleges that Stewart was a co-conspirator in
Capriotti’s and Hargrove’s looting of InTrust. The
Receiver also argues that, in ruling on Stewart’s
motion to dismiss, the district court improperly took
judicial notice of adjudicative facts and erred by
granting the motion to dismiss with prejudice without
first permitting the Receiver to file an amended com-
plaint. We affirm.2
I. Standard of Review
We review de novo a district court’s order granting a
Rule 12(b)(6) motion to dismiss based on the statute of
2
Because we affirm the district court on the statute of limita-
tions, we need not discuss Stewart’s arguments on the merits
of the Receiver’s claims. Stewart Br. 43-49. We also do not
address Stewart’s argument in a footnote that the Receiver’s
allegations fail to establish for purposes of the Illinois
adverse domination doctrine that a majority of InTrust’s
board members were wrongdoers.
6 No. 11-2108
limitations. See Middleton v. City of Chicago, 578 F.3d 655,
657 (7th Cir. 2009). In doing so, we take “all well-pleaded
allegations of the complaint as true and view[ ] them in
the light most favorable to the plaintiff.” Santiago v.
Walls, 599 F.3d 749, 756 (7th Cir. 2010). To satisfy the
notice-pleading standard of the Federal Rules of Civil
Procedure, a complaint must provide a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In other words,
the plaintiff’s complaint must be sufficient to provide
the defendant with “fair notice” of the plaintiff’s claim
and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007),
quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).
The Supreme Court also instructs us to examine
whether the allegations in the complaint state a “plausi-
ble” claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 1949 (2009). To survive a motion to dismiss,
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face’. . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the de-
fendant is liable for the misconduct alleged.” Id., quoting
Twombly, 550 U.S. at 570. The complaint “must actually
suggest that the plaintiff has a right to relief, by
providing allegations that raise a right to relief above
the speculative level.” Windy City Metal Fabricators &
Supply, Inc. v. CIT Technology Financing Services, 536 F.3d
663, 668 (7th Cir. 2008) (emphasis in original), quoting
Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008).
No. 11-2108 7
But a plaintiff’s claim need not be probable, only
plausible: “a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts
is improbable, and that a recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal quotation
omitted). To meet this plausibility standard, the com-
plaint must supply “enough fact to raise a reasonable
expectation that discovery will reveal evidence” sup-
porting the plaintiff’s allegations. Id.
Here, the district court dismissed the Receiver’s claims
upon finding that the applicable statute of limitations
had run. A statute of limitations provides an affirma-
tive defense, and a plaintiff is not required to plead facts
in the complaint to anticipate and defeat affirmative
defenses. But when a plaintiff’s complaint nonetheless
sets out all of the elements of an affirmative defense,
dismissal under Rule 12(b)(6) is appropriate. See Brooks
v. Ross, 578 F.3d 574, 579 (7th Cir. 2009). When reviewing
a Rule 12(b)(6) dismissal of state law claims based on a
statute of limitations, we apply state law regarding the
statute of limitations and “any rules that are an integral
part of the statute of limitations, such as tolling and
equitable estoppel.” Parish v. City of Elkhart, 614 F.3d
677, 679 (7th Cir. 2010).
II. Adverse Domination Doctrine under Illinois Law
The parties do not contest the district court’s finding
that the acts giving rise to the Receiver’s claims occurred
no later than August 1996. Under Illinois law, a five-
year statute of limitations governs the Receiver’s claims.
8 No. 11-2108
735 ILCS 5/13-205. Thus, the statute of limitations on
the Receiver’s claims ran, at the latest, in August 2001.
The parties signed a tolling agreement on October 12,
2001. The question is whether the tolling agreement
came too late to save the Receiver’s claims.
On April 14, 2000, the OBRE took control of InTrust
and placed it in receivership. Prior to April 14, 2000,
Capriotti and Hargrove controlled InTrust, and the Re-
ceiver argues that the statute of limitations was tolled
until that date by the doctrine of adverse domination,
which “tolls the statute of limitations for claims by a
corporation against its officers and directors while the
corporation is controlled by those wrongdoing officers
or directors.” Larney, 719 N.E.2d at 170. The doctrine is
an extension of the Illinois discovery rule, which tolls the
statute of limitations until a plaintiff knows or should
know that he has been injured and that his injury was
wrongful. Because a plaintiff-corporation can learn that
it has been injured only through the knowledge
of its agents, if the agents’ interests are adverse to the
corporation, the agents’ knowledge is not imputed to the
corporation. “The rationale behind this doctrine is
‘that control of the board by wrongdoers precludes the
possibility for filing suit since these individuals cannot
be expected to sue themselves or initiate action contrary
to their own interests.’ ” Larney, 719 N.E.2d at 170,
quoting Federal Deposit Insurance Corp. v. Greenwood, 739
F. Supp. 450, 453 (C.D. Ill. 1989). The key to this case
is that, in Illinois, the doctrine applies to causes of action
against the wrongdoing directors, but also to causes
of action against co-conspirators of the wrongdoers. Id.
No. 11-2108 9
at 172. Here, the district court found that the adverse
domination doctrine, as articulated in Larney, would not
operate to save the Receiver’s claims against Stewart
because the doctrine tolls a corporation’s claims only
against wrongdoing directors and co-conspirators, and
because Stewart fits in neither category.
In seeking to overturn the dismissal, the Receiver first
argues that a finding of conspiracy is not necessary to
toll claims against Stewart under the adverse domina-
tion doctrine as articulated in Larney. Alternatively, if
the doctrine will preserve claims only against directors
and their co-conspirators, the Receiver argues that
Stewart was a co-conspirator in Hargrove’s and
Capriotti’s wrongdoing and that the adverse domina-
tion doctrine applies. We disagree with the Receiver on
both points and affirm the district court.
The Receiver first faults the district court for beginning
and ending its analysis with Larney, a decision by the
Appellate Court of Illinois, without making an attempt “to
predict how the Illinois Supreme Court would rule
on the scope of the adverse domination doctrine.” By
analyzing and applying the Appellate Court’s reasoning
in Larney, the district court did exactly what it should
have. Where a state’s supreme court “has not yet passed
on an issue, we examine decisions of the lower state
courts to help formulate an answer.” Kaplan v. Shure
Brothers, Inc., 153 F.3d 413, 420 (7th Cir. 1998). The Larney
court was the first and is so far the only Illinois appel-
late court to discuss the adverse domination doctrine,
and its holding has not been undermined by intervening
10 No. 11-2108
Illinois precedent. The district court was correct to give
it persuasive weight.
On the merits, the Receiver argues that a formal claim
for civil conspiracy is not a prerequisite for adverse
domination under Illinois law and that the district court
misread Larney. The Receiver contends that its broader
reading of Larney is appropriate and that the Illinois
Supreme Court “would likely find that adverse domina-
tion tolls the statute of limitations for corporate claims
against third parties if pursuit of such claims would
bring to light the directors’ misconduct, regardless of
whether plaintiff includes a claim for civil conspiracy
against the third parties and regardless of whether a
conspiracy existed to commit the wrongdoing.” We
agree with the district court that, without a sufficient
showing that Stewart was a co-conspirator in Capriotti’s
and Hargrove’s looting of InTrust account funds, the
Illinois adverse domination doctrine as defined in
Larney will not save the Receiver’s claims against Stewart.
The Receiver focuses first on the fact that, in spite of
its language that the adverse domination doctrine
“applies to toll the statute of limitations for a cause of
action by a corporation against a nonboard-member co-
conspirator of the wrongdoing board members,” the
Larney court permitted the plaintiffs’ claims to go
forward even though they had not brought a formal
conspiracy claim against the defendants. The Receiver
quotes, in full, the “relevant portion” of Larney. The
added emphasis is ours:
No. 11-2108 11
We believe that the fact that two of the defendants in
this case were not members of the Board does not
automatically render the adverse domination doc-
trine inapplicable. Both [defendants] Larney and
Midland were alleged co-conspirators of [wrongdoing
board members] Lopinski and Lipinski. Just as a
board comprised of a majority of wrongdoers could not be
expected to file suit against itself, such a board could not be
expected to file suit against a nonboard-member co-con-
spirator because such action would necessarily bring to
light its own wrongdoing and would be adverse to
its own interests. The rationale behind the adverse
domination doctrine applies equally to causes of action
against co-conspirators. We find that the adverse domi-
nation doctrine applies to toll the statute of limita-
tions for a cause of action by a corporation against a
nonboard-member co-conspirator of the wrongdoing
board members.
Larney, 719 N.E.2d at 172 (emphasis added). Larney did not
hold that a formal conspiracy claim is necessary for the
adverse domination doctrine to apply.3 But, clearly, the
3
Neither did the district court. The Receiver quotes the relevant
portion of Larney, and then states, incorrectly, that “[t]he
district court interpreted this language to mean that properly
stating a claim for civil conspiracy was a prerequisite for
adverse domination tolling with respect to claims against non
board members . . . . The district court concluded that it was
the formal inclusion of a conspiracy count that mattered.” The
district court did no such thing. It stated instead, “Thought
(continued...)
12 No. 11-2108
Larney court found that even without a formal claim, the
plaintiffs had sufficiently alleged that the Larney defen-
dants were co-conspirators of the controlling, wrongdoing
board members. See id. A formal claim of conspiracy is
not necessary. But in articulating the doctrine in Illinois,
the Larney court made clear that a plaintiff’s allegations
must establish that the defendant was complicit in the
wrongdoing of the directors for the adverse domina-
tion doctrine to toll the statute of limitations.4
3
(...continued)
[sic] [the Receiver] applies the label of coconspirator to Stewart,
[the Receiver’s] brief contains no reference to specific allegations
in the Complaint in support of that Conclusion. The cited
paragraphs of the Complaint contain no allegations of conspiracy
between InTrust’s board and Stewart to support this conclu-
sion.” Independent Trust Corp. v. Stewart Information Services
Corp., 2011 WL 529390, at *5 (N.D. Ill. Feb. 7, 2011) (emphasis
added).
4
And not just any directors, but the directors of the corporate
plaintiff. This case is muddied because Hargrove and Capriotti
each wore two hats based on their roles with both Intercounty
and InTrust. At Intercounty and as Intercounty officers,
Hargrove and Capriotti misused escrow funds. At InTrust
and as InTrust directors, they pilfered account funds. The Re-
ceiver, representing InTrust, is attempting to bring claims
against Stewart. For the adverse domination doctrine to
apply to preserve InTrust’s claims, the Receiver’s allegations
must demonstrate that Stewart conspired with Hargrove
and Capriotti in their role as InTrust directors, so the Receiver
must show that Stewart conspired in the scheme to siphon
money out of InTrust accounts.
No. 11-2108 13
The Receiver argues that Larney used the word con-
spirator “loosely,” and that instead of looking at the
identity of the defendant, courts applying Illinois law
should examine the nature of the proposed cause of
action. If the cause of action necessarily would have
exposed the underlying wrongdoing of the controlling
officers or directors, the Receiver argues, the rationale
of the adverse domination doctrine as expressed by the
Larney court should extend to that cause of action.
Receiver Br. 21 (“The Illinois Appellate Court allowed the
plaintiffs to proceed against third-parties without a
conspiracy count because their cause of action im-
plicated the directors and, thus, was something the direc-
tors would never have permitted to be filed while they
controlled the company.”). We appreciate the Receiver’s
reasoning and acknowledge that it suggests a plausible
extension of the adverse domination doctrine. But we
are not persuaded that we should extend Illinois law
beyond the clear bounds of Larney, in which the court
stated explicitly: “We find that the adverse domination
doctrine applies to toll the statute of limitations for a
cause of action by a corporation against a nonboard-
member co-conspirator of the wrongdoing board mem-
bers.” Id. at 172 (emphasis added). The Receiver’s inter-
pretation would require a significant extension of the
adverse domination doctrine under Illinois state law,
with consequences that we cannot foresee clearly. Unless
and until the Illinois courts address this question, we
rely on the boundaries of the doctrine as stated in
Larney, and we refrain from extending the doctrine of
adverse domination beyond wrongdoing directors and
their co-conspirators.
14 No. 11-2108
Finally, the Receiver argues that Illinois cases applying
the discovery rule and adverse domination cases from
other jurisdictions support its contention that the Illinois
Supreme Court would extend the adverse domination
doctrine to preserve the Receiver’s claims against Stew-
art. The Illinois discovery rule operates to preserve
a claim until the plaintiff knows or reasonably should
know that he or she has been wrongfully injured. See
Larney, 719 N.E.2d at 170, citing Hermitage Corp. v. Con-
tractors Adjustment Co., 651 N.E.2d 1132, 1135 (Ill. 1995);
Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 633 N.E.2d 627,
630-31 (Ill. 1994). And as the Receiver points out, the
Illinois discovery rule “has been applied across a broad
spectrum of litigation to alleviate what has been viewed
as harsh results resulting from the literal application of
the statute.” Receiver Br. 23, quoting Knox College v.
Celotex Corp., 430 N.E.2d 976, 979 (Ill. 1981). But the
Larney court had the discovery rule and its supporting
policy at its fingertips. It clearly considered the Illinois
discovery rule and its implications for corporate plain-
tiffs. It recognized that the adverse domination doctrine
was a logical extension of the discovery rule and related
agency principles, Larney, 719 N.E.2d at 170, but, once
again, it drew the boundary at wrongdoing directors of
the plaintiff corporation and their co-conspirators, and
no further. Id. at 172. We are not persuaded we
should predict the extension of the doctrine beyond the
boundary set thus far by the Appellate Court of Illinois.
The Receiver also cites adverse domination cases from
other jurisdictions and asks us to extend the rationales
expressed in those cases to Illinois. But where an Illinois
No. 11-2108 15
appellate court has spoken clearly on the issue, we have
no reason to look beyond Illinois for guidance. Here,
Illinois law seems sufficiently clear. Accordingly, we
affirm the district court concerning the boundaries of
the Illinois adverse domination doctrine. The doctrine
can help the Receiver here only if it can show (or for
now at least allege) that Stewart conspired with InTrust’s
directors to steal from InTrust account holders.
III. Conspiracy
The Receiver contends that it has satisfied the require-
ments of the adverse domination doctrine by alleging
that Stewart conspired with Capriotti and Hargrove to
take InTrust funds for the benefit of Intercounty. In
Illinois, a civil conspiracy is defined as “ ‘a combination
of two or more persons for the purpose of accomplishing
by concerted action either an unlawful purpose or a
lawful purpose by unlawful means.’ ” McClure v. Owens
Corning Fiberglas Corp., 720 N.E.2d 242, 258 (Ill. 1999),
quoting Buckner v. Atlantic Plant Maintenance, Inc., 694
N.E.2d 565, 571 (Ill. 1998). A plaintiff must allege facts
establishing both (1) an agreement to accomplish such
a goal and (2) a tortious act committed in furtherance
of that agreement. McClure, 720 N.E.2d at 258. Thus, for
the Illinois adverse domination doctrine to apply, the
allegations in the Receiver’s complaint, read in its
favor, must suggest plausibly that Stewart “knowingly
and voluntarily participate[d] in a common scheme to
commit an unlawful act or a lawful act in an unlawful
manner.” Adcock v. Brakegate, Ltd., 645 N.E.2d 888, 894 (Ill.
16 No. 11-2108
1994).5 Stated differently, “[t]here is no such thing as
accidental, inadvertent or negligent participation in a
conspiracy.” Id. Stewart must have “under[stood] the
general objectives of the conspiratorial scheme, ac-
cept[ed] them, and agree[d], either explicitly or
implicitly to do its part to further those objectives.” Id.
The district court found that the Receiver’s allegations
do not amount to a conspiracy between Stewart and
the InTrust directors under Illinois law, and we agree.
The Receiver argues that its complaint incorporates
factual allegations supporting all the elements of con-
spiracy under Illinois law. Like the district court, we
narrow our focus to only one of those elements: an agree-
ment between Stewart and InTrust to misappropriate
InTrust funds. The Receiver’s complaint consists of
90 pages and 214 paragraphs and is flush with detail
regarding Hargrove’s and Capriotti’s various misdeeds.
But it fails to link Stewart to the InTrust fraud
by plausibly suggesting that Stewart participated in
that fraud as a co-conspirator. Simply stated, the
Receiver’s allegations do not plausibly support the in-
ference that Stewart agreed, either explicitly or im-
plicitly, that Hargrove and Capriotti should raid the
funds of InTrust account holders.
We begin by taking a careful look at the Receiver’s
allegations concerning what Stewart did, what it did not
5
Again, not just any “unlawful act,” but Hargrove’s and
Capriotti’s scheme, as InTrust’s directors, to raid the funds
of InTrust account holders.
No. 11-2108 17
do, what it knew, and what it did not know regarding
Intercounty and InTrust. The Receiver’s complaint
alleges that in November 1984, Stewart appointed
Intercounty as its exclusive Chicagoland agent. The
underwriting agreement gave Stewart the right to
audit Intercounty’s escrow accounts and other finan-
cial statements and to terminate the agreement if
Intercounty did not manage its escrow funds appropri-
ately. Compl. ¶¶ 30-31. Until February 1991, Stewart
owned stock in Intercounty, which gave it the right to
receive monthly financial statements and annual
audited financial statements from Intercounty. Compl.
¶ 26. The Receiver alleges that the financial state-
ments that Stewart received and reviewed showed that
Hargrove and Capriotti were using the Intercounty escrow
account improperly to fund various schemes, including
a mortgage defeasance program and junk bonds. Compl.
¶¶ 42-43. Stewart became aware of these schemes. It
directed Intercounty not to enter into any more
defeasance transactions and to sell its junk bonds. But
Stewart did not force Intercounty to limit its exposure
and did not terminate its agreement with Intercounty.
Compl. ¶¶ 50-54.
When Intercounty’s escrow “investments” failed,
leaving a multi-million dollar shortfall in the escrow
account, Intercounty disclosed the shortfall to Stewart
via Intercounty’s audited and reviewed financial state-
ments. Compl. ¶¶ 80-83, 87. InTrust alleges that Stewart
knew that there was no way Intercounty’s business opera-
tions could cover the shortfall, and it also knew that it was
liable for the shortfall as the title insurer. Compl. ¶¶ 88-93,
18 No. 11-2108
96-97. Again, instead of terminating the agreement,
Stewart allowed Intercounty to continue running the
escrow account “on the float” and left it to Capriotti and
Hargrove to find a solution for the shortfall. Compl. ¶ 98.
Continuing to give the Receiver the benefit of all its
allegations, Stewart knew by this point that Intercounty
was willing to misuse escrow funds, it knew that Capriotti
and Hargrove had purchased InTrust, and “it also knew
that the only untapped escrow account controlled by
Intercounty was the one containing the funds of
InTrust’s clients.” Compl. ¶¶ 111-12, 134-36, 138. Even
though it had this knowledge, Stewart waived
Intercounty’s contractual obligation to submit to an
annual audit. Compl. ¶ 102. It also “pressured” and
“demanded” that Intercounty find a source of funds to
fill the escrow gap. Compl. ¶¶ 4, 105, 108, 110. By the
end of 1996, Capriotti and Hargrove had caused InTrust
to deposit over $45 million of InTrust account funds
into the Intercounty escrow account. Compl. ¶¶ 114, 116.
Without Stewart’s financial oversight, Intercounty was
able to “steal tens of millions of dollars from InTrust
and pay much of the InTrust money to or for the benefit
of Stewart.” Compl. ¶ 102.
Fundamentally, the Receiver’s argument is that the
pressure Stewart exerted on Intercounty to fill the
escrow gap, combined with its failure to prevent the
fraud by either demanding an audit or terminating its
underwriting agreement, amounts to Stewart’s implicit
agreement that Hargrove and Capriotti, in their role
as InTrust directors, should fraudulently siphon money
No. 11-2108 19
from InTrust accounts to fill the Intercounty escrow
shortage. We do not agree that these ingredients amount
to a Stewart-InTrust conspiracy. The Receiver has
simply failed to allege an agreement. Urging Intercounty
to resolve its escrow shortage, no matter how
strenuously, was not an implicit or explicit agreement
that Intercounty should resolve its escrow shortage by
embezzling funds from InTrust. See, e.g., Bosak v.
McDonough, 549 N.E.2d 643, 646 (Ill. App. 1989) (attorney
who advised realtor to cover shortage in his escrow
account, but did not agree to perpetrate fraud against
investor, could not be held liable for civil conspiracy).
And the Receiver points to no authority supporting its
assertion that Stewart’s failure to do more to prevent
the fraud makes it a co-conspirator in the fraud. To the
contrary, our precedent holds that, in the absence of
any evidence of an explicit or implicit agreement, a de-
fendant’s failure to prevent harm to a plaintiff does
not amount to a conspiracy. See Tierney v. Vahle, 304
F.3d 734, 739-40 (7th Cir. 2002).
Finally, relying on Hartford Accident and Indemnity Co.
v. Sullivan, 846 F.2d 377 (7th Cir. 1988), the Receiver
argues that because Stewart directly and indirectly bene-
fitted from the fraud, it should be held liable as a co-
conspirator. But Sullivan is easily distinguishable. In
Sullivan, we reversed a trial court’s finding that a
lawyer could not be held liable as a co-conspirator in a
scheme to defraud a bank of millions of dollars when
the lawyer had acted as a direct participant in only one
loan underlying the larger scheme. We relied in part on
the fact that the lawyer had benefitted from the larger
20 No. 11-2108
scheme. We recognized that as the larger scheme grew,
the conspirators’ demands for the lawyer’s legal work
increased, and proceeds from other fraudulent loans
were used to pay the interest due on the loan in which
he was a participant. Sullivan, 846 F.2d at 384. But the
evidence at trial also established that the lawyer was a
knowing participant in the fraud. He had assisted in
launching the scheme and knew that it was continuing.
The only issue was whether the lawyer could be held
liable for the entire scope of the fraud, or only the
smaller fraudulent transaction in which he participated.
Id. at 385 (“We hold that under Illinois law one who
participates actively in launching a conspiracy with
limited aims, who knows that the aims have been ex-
ceeded, and who knowingly obtains direct monetary
benefits from the expanded conspiracy, is a participant
in that conspiracy as well as in the narrower one from
which it grew.”). Here, although Stewart may have been
a beneficiary of Hargrove’s and Capriotti’s misdeeds,
the allegations in the complaint do not plausibly suggest
that Stewart launched the Intercounty escrow shortage
or that it knew of or was complicit in the underlying
fraud against InTrust.
Moreover, as the district court noted, the Receiver’s
speculative and conclusory assertion of a Stewart-
InTrust conspiracy is belied by other allegations in the
Receiver’s complaint that Stewart was entirely ignorant
of InTrust’s wrongdoing. For instance, the Receiver
alleges: “Stewart didn’t know the details of how
Intercounty had stayed in business.” Compl. ¶ 141; see
also Compl. ¶ 144 (on March 14, 1995, after Intercounty
sent Stewart copies of checks deposited into the escrow
No. 11-2108 21
account, Stewart asked to confirm the source of the pay-
ments because “there is no way of knowing, for
instance, where Intercounty got the money to fund the
escrow account recently.”). How could Stewart “act in
concert” with Hargrove and Capriotti to steal InTrust
money, as the Receiver speculates, if Stewart did not
know the details of how Intercounty had stayed in
business or how it was replenishing the depleted escrow
account? The Receiver does not meaningfully answer
that question. Without plausible allegations that Stewart
had knowledge of Hargrove’s and Capriotti’s fraud
against the InTrust account holders and acted to help
them succeed, the Receiver has failed to allege a con-
spiracy that included Stewart.
Along these same lines, the Receiver also alleges that
in 1995, Stewart “pressured for an audit and a ‘restruc-
turing’ of its relationship with Intercounty, and . . .
told Capriotti that if Intercounty did not restore the
shortages in its escrow account, [it] would be obligated
to contact the Illinois Department of Financial Institu-
tions.” Compl. ¶ 142. Stewart sent its internal auditors to
Intercounty several times, “but Intercounty never would
give them enough information or time to finish their
work.” Finally, in December 1995, Intercounty terminated
its association with Stewart. Compl. ¶ 147. Stewart’s
only possible inroad to obtain knowledge of the means
by which Intercounty’s operation was being funded
(the InTrust fraud) was shut down by Intercounty. Not
only is it implausible that alleged co-conspirators
would behave and communicate in this manner, but
these allegations show that Intercounty was actively
22 No. 11-2108
trying to prevent Stewart from uncovering the truth
about the InTrust fraud. Without knowledge of the
scheme, Stewart could not have agreed to it.
In sum, none of the allegations cited by the Receiver
support an inference that Stewart knew of, let alone
agreed to, any unlawful activity involving misappro-
priation of InTrust funds. Without a knowing agree-
ment, there can be no conspiracy, and without a conspir-
acy, the Illinois adverse domination doctrine cannot
apply to a non-director. Because the adverse domination
doctrine does not apply, the Receiver’s claims are barred
by the applicable statute of limitations, and the Receiver
has pled itself out of court. See Atkins v. City of Chicago,
631 F.3d 823, 832 (7th Cir. 2011) (a plaintiff can plead
himself out of court by pleading facts that show he has
no legal claim); see also Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899, 901 (7th Cir. 2004) (“Only when the
plaintiff pleads itself out of court — that is, admits all the
ingredients of an impenetrable defense — may a com-
plaint that otherwise states a claim be dismissed under
Rule 12(b)(6).”). Accordingly, we affirm the district
court’s dismissal of the Receiver’s claims, all of which
are governed by a five-year statute of limitations.
IV. “Judicial Notice” and Opportunity to Amend
Finally, the Receiver contends that the district court erred
in two other respects, neither of which is persuasive. It
asserts that in ruling on Stewart’s motion to dismiss,
the district court erred by taking judicial notice of
adjudicative facts, particularly the Hargrove indict-
No. 11-2108 23
ment, the Capriotti plea agreement, and the court’s
opinion in Fidelity Nat’l Title Ins. Co. of New York v.
Intercounty Nat’l Title Ins. Co., 2008 WL 4348594 (N.D. Ill.
Mar. 26, 2008). Before addressing the Receiver’s argu-
ment, we must reframe it. We do so primarily by quoting
the passage on which the Receiver’s argument is based,
which largely speaks for itself.
After the district court ruled in favor of Stewart and
dismissed the Receiver’s claims, the Receiver moved to
alter or amend the judgment pursuant to Rule 59(e). The
district court denied the motion. On page five of the
district court’s eleven-page opinion denying the
Receiver’s motion to alter or amend, the district court
said in a footnote:
That InTrust has filed a Rule 59(e) motion that more
or less regurgitates its arguments from the motion
to dismiss briefing is not surprising. InTrust’s Com-
plaint is essentially its last gasp in a marathon of
civil litigation. A brief summary of the criminal and civil
litigation that relates to this case is as follows. In June
2005, Capriotti pled guilty to participating with
Hargrove in a scheme to defraud, among others,
InTrust, [Stewart], and Fidelity, and misusing Inter-
county escrow funds. Capriotti’s plea agree-
ment refers to multiple instances in which the
former InTrust and Intercounty principals delib-
erately manipulated records to conceal escrow defi-
ciencies from [Stewart]. In September 2005, a jury
convicted Hargrove on ten counts, including a
finding that Hargrove participated in a scheme to
24 No. 11-2108
defraud, among others, InTrust, [Stewart], and Fidel-
ity. Around the time InTrust and Intercounty collapsed
in 2000, Fidelity filed Fidelity Nat. Title Ins. Co. of New
York v. Intercounty Nat. Title Ins. Co., No. 00-cv-5658,
2008 WL 4348594, at *1 (N.D. Ill. Mar. 26, 2008) (Fidel-
ity), against Intercounty, Capriotti, Hargrove, INTIC
and numerous others, including [Stewart], making
similar allegations as InTrust makes in its Complaint
here. In 2008, Judge Norgle granted [Stewart’s] motion
for summary judgment on all remaining claims,
finding: “Intercounty and its executives did whatever
they could to keep Stewart in the dark regarding any
escrow account deficiencies at . . . Intercounty.” Id. at
*6. In 2005, the Receiver filed Independent Trust Corp. v.
Fidelity Nat. Title Ins. Co. of New York, 577 F. Supp. 2d
1023 (N.D. Ill. 2008), seeking $68 million based on
Fidelity’s relationship from 1995 through 2000 with
Intercounty, Capriotti, and Hargrove, making claims
that were similar to those made against Stewart in
the instant Complaint. On August 26, 2008, Judge
Pallmeyer granted summary judgment for Fidelity on
InTrust’s remaining claims. Id. at 1037-52.
Independent Trust Corp. v. Stewart Information Services
Corp., 2011 WL 1831586, at *3, n.1 (N.D. Ill. May 11, 2011)
(emphasis added and internal record citations omitted).
When the “adjudicative facts” are read in the proper
context, it is apparent that the Receiver’s argument is
specious. The district court was reciting the long proce-
dural history of this case. The Hargrove indictment, the
Capriotti plea agreement, and Fidelity v. Intercounty are
documents in the public domain that further that proce-
No. 11-2108 25
dural narrative. The district court took judicial notice of
the indisputable facts that those documents exist, they
say what they say, and they have had legal conse-
quences. The district court did not rely on the documents
as proof of disputed facts in any other sense.
Finally, the Receiver argues that the district court
abused its discretion by dismissing the initial complaint
with prejudice without allowing an opportunity to
amend. Rule 15 ordinarily requires that leave to amend
be granted at least once when there is a potentially
curable problem with the complaint or other pleading.
A plaintiff is entitled to amend the complaint once as a
matter of right if it acts quickly enough, see Fed. R. Civ.
P. 15(a), and even after that time has expired, a court
“should “freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2); see also Bausch v.
Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010), citing
Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499
F.3d 663, 666 (7th Cir. 2007). In applying Rule 15(a), the
uncertainty in pleading standards resulting from the
Supreme Court’s decisions in Iqbal and Twombly also
provides powerful reasons to give parties a reasonable
opportunity to cure defects identified by a district
court. Here, however, the Receiver did not request the
opportunity to amend until its motion to amend or
alter and, most important, did not offer any meaningful
indication of how it would plead differently. See Hecker v.
Deere & Co., 556 F.3d 575, 590-91 (7th Cir. 2009) (“Once
judgment has been entered, there is a presumption that
the case is finished, and the burden is on the party
who wants to upset that judgment to show the court
26 No. 11-2108
that there is good reason to set it aside.”), citing Vicom, Inc.
v. Harbridge Merchant Services, 20 F.3d 771, 785 (7th Cir.
1994) (faulting plaintiff for not attaching a proposed
complaint or specifically informing the court of how it
would cure deficiencies in the earlier complaint); Twohy
v. First National Bank, 758 F.2d 1185, 1189, 1197 (7th Cir.
1985) (same). Instead, the Receiver put it to the district
court to identify what it needed to plead to succeed,
telling that court: “[T]he Court should specifically
address the conspiracy allegations and explain why
they are deficient. And instead of dismissing the com-
plaint with prejudice, the Receiver should be given leave
to replead its conspiracy allegations to correct whatever
deficiencies the Court identifies.”
In support of its argument on appeal, the Receiver
contends only that when its complaint was dismissed,
it had filed only one complaint on behalf of InTrust. (It
does not try to assign us the task of re-pleading for it, as
it did the district court.) The Receiver offers no argu-
ment at all against futility, and it is well settled that a
district court may refuse leave to amend where amend-
ment would be futile. See Foster v. DeLuca, 545 F.3d 582,
584 (7th Cir. 2008), citing Airborne Beepers, 499 F.3d at 666.
Nothing the Receiver has brought forward so far, either
in its complaint allegations, its arguments in favor of its
motion to alter or amend, or its arguments on appeal,
sufficiently supports its theory that Stewart knowingly
and intentionally conspired with InTrust. Based on the
Receiver’s own allegations, Stewart did not know of
Hargrove’s and Capriotti’s InTrust malfeasance. Without
knowledge of Hargrove’s and Capriotti’s activities and
No. 11-2108 27
purpose, Stewart could not have conspired in their
fraud. In the absence of any suggestion of how the
Receiver might overcome these self-created hurdles if
it were to replead, the district court did not abuse its
discretion in denying the Receiver that opportunity.
A FFIRMED.
1-6-12