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Ernest Smalis, Anastasios Corporation v. United States of America

July 8, 2011

ERNEST SMALIS, ANASTASIOS CORPORATION,
PLAINTIFFS,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM ORDER RE: DEFENDANT'S MOTION TO DISMISS (Doc. No. 12)

I.Introduction

Presently before this Court is Defendant, United States of America‟s Motion to Dismiss the Amended Complaint filed by Plaintiffs Ernest Smalis and Anastasios Corporation.*fn1 Doc. No. 12. The Court has reviewed Plaintiffs‟ Amended Complaint (Doc. No. 1), Defendant‟s Motion to Dismiss (Doc. No. 12) and Brief in Support Thereof (Doc. No. 13), and Plaintiffs‟ Brief in Opposition to Defendant‟s Motion to Dismiss (Doc. No. 17).

For the reasons that follow, Defendant‟s Motion to Dismiss will be granted.

II.Factual Background

The relevant facts of the case, as set forth in Plaintiffs‟ Amended Complaint (Doc. No. 9), which are accepted as true solely for the purpose of adjudicating this Motion to Dismiss, are as follows:

Individual Plaintiff, Ernest Smalis ("Smalis"), is president, secretary and sole stockholder of corporate Plaintiff, Anastasios Corporation. Amended Complaint, Doc. No. 9, ¶ 1.

Anastasios Corp. is the title owner of a backhoe (case 580-M). Id. at ¶ 2. Smalis entered into an agreement to cooperate with the Federal Bureau of Investigation ("FBI") in the Western District of Pennsylvania and around Cleveland, Ohio in a public corruption investigation of the rehabilitation of the George Graff and Detroit Seifere Bridges in Ohio. Id. at ¶ 3. Smalis cooperated with the FBI from 1997 through 2001 when all individuals under investigation pled guilty (including time spent incarcerated). Id. at ¶ 4.

As part of his cooperation, Smalis used two of his personal vehicles, a Mercedes Benz and a Pathfinder. Doc. No. 9, ¶ 5. The FBI placed a surveillance camera in the Mercedes Benz, which damaged the console and would cost $2,717.80 to repair. Id. at ¶ 5, Doc. No. 9-1, 10.

Smalis‟s cooperation also included the exchange of one Case 580-M Backhoe to a corruption suspect, Victor Stivinson ("Stivinson"), at the direction of FBI officials. Doc. No. 9, ¶ 6. FBI agents informed Smalis that the backhoe would be returned when Stivinson was convicted. Stivinson pled guilty in 2000 or 2001. Id. at ¶ 10. The backhoe has not been returned to Smalis or Anastasios Corporation. Id. at ¶ 10, 12, 13.

Smalis requests that this Court direct the United States Government and FBI pay him for the following expenses:

1. Cost of backhoe: $21,200.00

2. Loss to rental of backhoe for ten years ($1,890 per ...


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