Nocula, Mitch v. UGS Corporation

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-3386 & 06-3447

MITCH NOCULA, an individual, and

TOOLING SYSTEMS INTERNATIONAL

CORPORATION, an Illinois Corporation,

Plaintiffs-Appellants,

v.

UGS CORPORATION, a Delaware Corporation,

and UGS SP. Z O.O., a corporate body in the

Republic of Poland,

Defendants-Appellees.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 5275—Robert W. Gettleman, Judge.

____________

ARGUED MARCH 26, 2007—DECIDED MARCH 24, 2008

____________

Before ROVNER and SYKES, Circuit Judges.Œ

Œ

This appeal was initially heard by Circuit Judges Rovner,

Williams, and Sykes. While the case was under advisement,

Judge Ann Claire Williams withdrew from participation and

took no part in the opinion.

2 Nos. 06-3386 & 06-3447

SYKES, Circuit Judge. Mitch Nocula is the sole share-

holder of two corporations: Tooling Systems International

Corp. (“TSI”), an Illinois company that takes orders

for the manufacture of tools and dies, and P.Z. Alucon Sp.

z o.o. (“Alucon”), a Polish corporation that is one of TSI’s

primary subcontractors for the manufacture of the tools

and dies. Nocula and TSI claim that UGS Corporation

(“UGS”), a Texas-based Delaware corporation that sells

computer-aided design software, and UGS Sp. z o.o. (“UGS

Poland”),1 a Polish sublicensee of UGS’s software, inten-

tionally disrupted Alucon’s business by lodging a crim-

inal complaint against it in Poland for theft of intellectual

property. In connection with the ensuing prosecution,

Polish police seized Alucon’s computers. Although the

prosecution ended in a verdict for Alucon, the computers

disappeared and Alucon’s engineering data was lost.

Nocula and TSI claim UGS and UGS Poland maliciously

instituted the Polish criminal prosecution and used it as

leverage to force the transfer of a license to use UGS’s

software from a third-party licensee, Electrode Machining

Services (“Electrode”), to Alucon. These actions form the

basis of various tort and contract claims asserted in

this lawsuit filed. UGS and UGS Poland moved to dismiss,

arguing the claims were barred by the act-of-state doctrine,

which generally prohibits federal courts from entertaining

claims that would question the validity of the acts of a

foreign sovereign under that sovereign’s laws. The district

court granted this motion. Nocula, proceeding pro se, filed

a timely notice of appeal on his own behalf. After the 30-

1

“Sp. z o.o.” (Spolka Z Ograniczona Odpowiedzialnoscia)

designates a Polish limited company.

Nos. 06-3386 & 06-3447 3

day appeal clock expired, counsel was retained and filed a

“corrected” notice of appeal for Nocula and TSI.

Jurisdictional defects prevent us from addressing most

of the claims in this case. The first notice of appeal—signed

and filed by “Mitch Nocula, Pro Se”—was ineffective to

provide notice of TSI’s appeal; the second notice, naming

both Nocula and TSI, was untimely. Accordingly, TSI’s

appeal must be dismissed for lack of appellate jurisdic-

tion. Nocula’s notice of appeal was timely, but most of

the claims he asserts belong to his corporation, Alucon,

which is not a party. To the extent Nocula is attempting as

a shareholder to sue in tort or contract for injuries to

Alucon, his claims are barred by the rule against share-

holder standing.

One claim arguably belonging to Nocula personally

pertains to the “wrongful” loss of the computers and

engineering data. We say arguably because the amended

complaint sometimes describes this as the property of

Alucon and at other times asserts the computers and

data belonged to Nocula personally. Either way, the dis-

trict court properly invoked the act-of-state doctrine

because the adjudication of this claim would require

American courts to question the legality of the seizure

and loss of this property during the course of the Polish

criminal prosecution. Another claim asserted by Nocula

personally is for “harassment,” which is not cognizable

under Illinois law.

I. Background

Nocula is the sole owner of TSI, a corporation in the

business of soliciting orders for custom-manufactured

machine tools and dies. TSI farms out a substantial num-

ber of these orders to subcontractors, including Alucon,

4 Nos. 06-3386 & 06-3447

a Polish company also owned by Nocula. In the early 1990s,

Nocula wanted to use computers to streamline the other-

wise complicated and time-consuming process of making

tools and dies from prototypes. Nocula teamed up with

Charles Hahs Jr. and began to explore the use of computer-

aided design (“CAD”) applications in the tool-and-die

industry. Hahs was the owner of Electrode, a Florida

corporation, which held a license to use certain CAD

software made by UGS. Using UGS’s CAD software, Hahs

and Nocula began implementing a “virtual shop”

at Alucon, Nocula’s Polish company, that allowed tools

and dies to be more economically and quickly manu-

factured.

UGS Poland, a wholly owned subsidiary of UGS respon-

sible for sublicensing UGS’s CAD software and en-

forcing its intellectual property rights in Poland, filed

a criminal complaint in Poland against Alucon and

Hahs for illegally using UGS software. This accusation

prompted the commencement of a criminal prosecution.

Polish police seized all of Alucon’s computers, effectively

shutting down its operations. The president of Alucon

was arrested, as was Hahs. These disruptions caused

Alucon to default on purchase orders from TSI, which in

turn defaulted on a number of its contracts with its own

customers.

Nocula sought to resolve this situation with dispatch.

He asked UGS what could be done to get the charges

against Alucon dropped and the seized computers re-

turned. Nocula negotiated an agreement with UGS that it

would “do everything possible to terminate the criminal

proceedings against Alucon” in exchange for the transfer

of Electrode’s UGS software license to Alucon. The license

was duly transferred. As a result, Alucon was required to

Nos. 06-3386 & 06-3447 5

purchase UGS CAD software and updates from UGS

Poland.

Nocula contends UGS reneged on the deal by con-

tinuing to demand prosecution of Alucon and its person-

nel, or at least by not making any effort to see that those

charges were dropped. Moreover, he claims UGS Poland

billed Alucon for software maintenance it did not perform

and updates it did not provide. When Alucon refused

to pay, UGS Poland sought and won a civil judgment

from a Polish court against Alucon and seized its bank

accounts. In the meantime, the Polish criminal prosecution

ended with a verdict favorable to Alucon. Unfortunately,

according to Polish authorities, Alucon’s seized com-

puters and accompanying engineering data “mysteriously

disappeared.” As a result, Alucon ceased doing business.

Based on these events, Nocula and TSI filed a diversity

suit in federal court in Illinois. Nocula’s claims include

malicious prosecution, fraudulent inducement, breach of

contract, tortious interference, a claim for the wrongful

loss of his property, and harassment. TSI’s claims are

for various forms of tortious interference.

UGS and UGS Poland moved to dismiss based on the act-

of-state doctrine, and the district court granted the mo-

tion. The court held that “any claim based on UGS Poland’s

filing, prosecuting, receiving and executing on the

civil judgment in Poland is barred by the act of state

doctrine” because any claim stemming from that action

“would require this court to reverse the Polish court’s

decision.” As for any claims touching upon the Polish

criminal prosecution, the court concluded that the injuries

are “all alleged to stem from the Polish police seizure” of

Alucon’s computers, and therefore any attempt to re-

cover would require a showing that the seizure was

6 Nos. 06-3386 & 06-3447

improper and thus would run afoul of the act-of-state

doctrine.

II. Analysis

A. Appellate Jurisdiction Over TSI’s Appeal

We questioned appellate jurisdiction by order issued

before briefing commenced in this case; our appellate

analysis always begins with the jurisdictional inquiry

regardless of whether it is raised by one of the parties. See

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541

(1986); Balt. Orioles, Inc. v. Major League Baseball Players

Ass’n, 805 F.2d 663, 666 (7th Cir. 1986); Christianson v. Colt

Indus. Operating Corp., 798 F.2d 1051, 1055 (7th Cir. 1986).

The parties filed memoranda in response to our juris-

dictional order and reiterated their jurisdictional argu-

ments in their merits briefs.

UGS2 contends we lack jurisdiction over TSI’s claims.

No doubt we possess jurisdiction over appeals from

final orders in diversity suits, see 28 U.S.C. §§ 1291, 1332,

but our focus here is on the particular requirements of

Rules 3 and 4 of the Federal Rules of Appellate Procedure

concerning the time for filing a notice of appeal and what

it must contain. The district court entered its decision

and order granting UGS’s motion to dismiss on August 4,

2006, and three days later, on August 7, 2006, entered a

minute order terminating the case. Nocula filed his pro se

notice of appeal on September 5, 2006, within the 30-day

2

For simplicity’s sake, we will refer to UGS and UGS Poland as

“UGS.”

Nos. 06-3386 & 06-3447 7

time limit prescribed by Rule 4(a)(1)(A).3 This notice listed

Nocula and TSI in the caption but did not specifically

mention TSI in the body of the notice. The notice also

misidentified the order appealed from and the appellate

court to which the appeal was taken. The body of the

notice read:

NOTICE IS HEREBY GIVEN that MITCH NOCULA,

et al, Petitioner above-named, hereby appeals to the

United States Court of Appeals for the Eighth Circuit from

a final order of the Honorable Robert W. Gettleman,

Judge of the Northern District Court of Illinois, Eastern

Division, denying his petition for writ of habeas corpus,

declaratory and injunctive relief, entered in this action

on the 4th day of August 2006. (Emphasis added.)

The notice was signed “Mitch Nocula, Pro Se.”

On September 12, 2006, counsel for Nocula and TSI filed

what was denominated a “Corrected Notice of Appeal.”

This notice remedied several errors contained in the

September 5 notice. The second notice was directed to the

correct circuit—the Seventh instead of the originally named

Eighth—and the language suggesting that claims for

habeas, declaratory, and injunctive relief were being

appealed was removed (those types of relief had never

been sought). Additionally, whereas Nocula had signed

the original notice for himself “pro se,” the September 12

notice was signed by an attorney “for Mitch Nocula and

Tooling Systems Int’l Corp.”

3

Rule 4(a)(1)(A) of the Federal rules of Appellate Procedure states:

“In a civil case, . . . the notice of appeal . . . must be filed with the

district clerk within 30 days after the judgment or order ap-

pealed from is entered.”

8 Nos. 06-3386 & 06-3447

Regardless of the corrections it contained, the second

notice was untimely. Absent a motion to extend under

Rule 4(a)(5)—which was not filed in this appeal—amend-

ments to a notice must be made within the time set forth

by Rule 4(a)(1). See Harrison v. Dean Witter Reynolds, Inc.,

974 F.2d 873, 886 (7th Cir. 1992); United States ex rel. Leonard

v. O’Leary, 788 F.2d 1238, 1239 (7th Cir. 1986). The Septem-

ber 12 notice was filed outside the 30-day appeal period,

whether the clock started on August 4, when the district

court entered its order dismissing the case, or on August 7,

when the court entered its minute order terminating

the case; we have previously recognized the latter type

of order as a sufficient separate judgment for purposes of

Rule 58 of the Federal Rules of Civil Procedure. See Props.

Unlimited, Inc. Realtors v. Cendant Mobility Servs., 384

F.3d 917, 920 (7th Cir. 2004) (holding a similar minute

order entered on the docket to be a final judgment for

purposes of Rule 58 of the Federal Rules of Civil Procedure

and the 30-day appeal time limit of Rule 4(a)). The

timely filing of a notice of appeal is not merely a proce-

dural hoop for parties to jump through; it is a jurisdictional

requirement. See Bowles v. Russell, 127 S. Ct. 2360, 2363

(2007); Leonard, 788 F.2d at 1239. Thus, our examination

is limited to the September 5 notice.

A notice of appeal must (1) “specify the party or parties

taking the appeal by naming each one in the caption or

body of the notice”; (2) designate the judgment from

which the appeal originates; and (3) “name the court to

which the appeal is taken.” FED. R. APP. P. 3(c)(1). The

purpose of Rule 3 “is to ensure that the filing provides

sufficient notice to other parties and courts.” Nichols v.

United States, 75 F.3d 1137, 1140 (7th Cir. 1996) (quoting

Smith v. Barry, 502 U.S. 244, 248 (1992)). We have said

Nos. 06-3386 & 06-3447 9

that “punctilious, literal, and exact compliance” with Rule

3(c)’s requirements is required. Allen Archery, Inc. v.

Precision Shooting Equip., Inc., 857 F.2d 1176, 1177 (7th Cir.

1988); see also Torres v. Oakland Scavenger Co., 487 U.S. 312

(1988). Notice will be deemed insufficient where the

notice of appeal, read as a whole, is ambiguous. See Hart-

ford Cas. Ins. Co. v. Borg-Warner Corp., 913 F.2d 419, 423 (7th

Cir. 1990).

The September 5 notice did not mention TSI as an

appealing party, either in the body of the notice or as an

appealing party under Nocula’s signature—recall that

Nocula signed the notice above the typed designation

“Mitch Nocula, Pro Se.” TSI was listed in the caption of

the notice, and the body of the notice refers to “Mitch

Nocula, et al.” But immediately following this is a refer-

ence to “Petitioner”—singular—and the notice states

that this “petitioner” appeals from “a final order . . .

denying his petition for writ of habeas corpus, declaratory

and injunctive relief.” The use of the singular “Petitioner”

and “his,” together with the signature line that read

“Mitch Nocula, Pro Se,” without any reference to TSI,

gave proper notice only that Nocula was appealing.4 As to

TSI, however, the notice was ambiguous. Corporations

cannot appear pro se, see Scandia Down Corp. v. Euroquilt,

Inc., 772 F.2d 1423, 1427 (7th Cir. 1985); Strong Delivery

Ministry Ass’n v. Bd. of Appeals of Cook County, 543 F.2d 32,

4

References to the wrong circuit court and nonexistent claims

were obvious errors that could not have led to confusion or

ambiguity in the notice. See United States v. Musa, 946 F.2d 1297,

1301 (7th Cir. 1991) (notice of appeal’s misidentification of

court being appealed to did not deprive the appellee of notice);

accord McLemore v. Landry, 898 F.2d 996, 999 (5th Cir. 1990).

10 Nos. 06-3386 & 06-3447

33-34 (7th Cir. 1976), and one pro se litigant cannot repre-

sent another, see 28 U.S.C. § 1654. Nocula did not sign the

notice in any representative capacity on behalf of TSI. The

caption lists TSI as “an Illinois Corporation” and Nocula

as “an individual”; the latter designation does not pro-

vide any indication Nocula was asserting claims in a

representative capacity on behalf of TSI.

Nocula and TSI cite a Ninth Circuit case, Bigelow v. Brady

(In re Bigelow), 179 F.3d 1164, 1165 (9th Cir. 1999), for the

proposition that an officer of a corporation can sign a notice

of appeal for the corporation provided a lawyer subse-

quently makes a formal appearance. In Bigelow, however,

the corporate officer signed the notice of appeal on behalf of

the corporation. Bigelow has since been distinguished by

D-Beam Ltd. Partnership v. Roller Derby Skates, Inc., 366 F.3d

972, 974 (9th Cir. 2004), which addressed whether a notice

sufficiently indicated both a corporate president’s and the

corporation’s intent to appeal. In D-Beam, the Ninth Circuit

held that because the corporate president did not sign the

notice “on behalf of” the corporation and the notice only

referred to a singular “plaintiff,” it failed to provide

sufficient notice of the corporation’s appeal, as distinct

from the president’s. Id.

We are not bound by either Bigelow or D-Beam, but

we think this case is closer to D-Beam than Bigelow. Nocula

and TSI asserted separate and distinct claims in this case,

and the body of the notice of appeal used the singular

“Petitioner” to refer to the appealing party. As in D-Beam,

Nocula signed the notice for himself, not “for” or “on

behalf of” TSI. Accordingly, because the September 5

notice of appeal was ambiguous as to TSI, we lack juris-

diction to hear TSI’s appeal.

Nos. 06-3386 & 06-3447 11

B. Nocula’s Appeal

The district court granted UGS’s motion to dismiss the

case under the act-of-state doctrine. We review the grant of

a motion to dismiss de novo. Christensen v. County of Boone,

Ill., 483 F.3d 454, 458 (7th Cir. 2007). Before we take up the

act-of-state doctrine, however, there is a threshold ques-

tion regarding Nocula’s standing. Nocula asserted claims

for malicious prosecution, fraudulent inducement, breach

of contract, and tortious interference, all stemming

from UGS’s actions against Alucon in Poland. More

specifically, Nocula claims UGS: (1) maliciously filed a

criminal complaint against Alucon in Poland, resulting

in the seizure and loss of Alucon’s computers by the Polish

government and the demise of Alucon; (2) fraudulently

induced the transfer of Electrode’s UGS software license

to Alucon, precipitating the civil dispute between UGS

and Alucon in Poland; (3) breached its oral agreement

to facilitate the termination of the Polish criminal pros-

ecution against Alucon; and (4) by all of the foregoing

actions, tortiously interfered with Alucon’s contracts

and prospective economic benefits. Notably, these

claims all describe injuries to Alucon, not Nocula.

It is well established that a shareholder generally

cannot sue to enforce the rights of the corporation. Franchise

Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336

(1990); Warth v. Seldin, 422 U.S. 490, 499 (1975); Flynn v.

Merrick, 881 F.2d 446, 449 (7th Cir. 1989); Twohy v. First

Nat’l Bank of Chi., 758 F.2d 1185, 1194 (7th Cir. 1985). This

is a prudential limitation on standing, a strand of the

standing doctrine that prohibits litigants from suing to

enforce the rights of third parties. Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 17-18 (2004); MainStreet Org. of

12 Nos. 06-3386 & 06-3447

Realtors v. Calumet City, Ill., 505 F.3d 742, 746 (7th Cir. 2007).

Although closely related to the requirements of constitu-

tional standing, we have held that the absence of pruden-

tial standing “is not jurisdictional in the sense that Article

III standing is,” but nevertheless may be raised by the court

on its own, even though the parties have not noticed it.

MainStreet Realtors, 505 F.3d at 747. That is the case here.

When we raised the issue at oral argument, UGS’s counsel

(not surprisingly) agreed that Nocula lacked standing as a

shareholder to bring these claims, which assert injuries to

Alucon; Nocula’s counsel did not take the opportunity to

respond during rebuttal.

There are exceptions to the rule against shareholder

standing for cases in which corporate management has

refused to pursue the action for reasons unrelated to good-

faith business judgment, or when the shareholder has

suffered a direct, personal injury not derivative of the

corporation’s, or a special contractual duty exists. See

Franchise Tax Bd. of Cal., 493 U.S. at 336-37; Twohy, 758

F.2d at 1194; see also Goldberg v. Michael, 766 N.E.2d 246,

251 (Ill. App. Ct. 2002); Sterling Radio Stations, Inc. v.

Weinstine, 765 N.E.2d 56, 60 (Ill. App. Ct. 2002); Small v.

Sussman, 713 N.E.2d 1216, 1219 (Ill. App. Ct. 1999). None

of these exceptions applies here. Although the amended

complaint refers to an agreement (fraudulently induced

and/or breached) between UGS and Nocula, the detailed

factual allegations make it clear that Nocula merely

negotiated the agreement on behalf of Alucon. No perfor-

mance by Nocula was promised or expected. The con-

tractual rights and obligations flowed between UGS and

Alucon, or perhaps between UGS, Alucon, and Electrode.

As described in the amended complaint, the agreement

called for Electrode’s UGS software license to be trans-

Nos. 06-3386 & 06-3447 13

ferred to Alucon and, in exchange, UGS would bring

about the termination of the Polish criminal prosecution.5

Accordingly, the claimed tort and contract injuries were

to Alucon’s interests; as sole shareholder, Nocula lacks

standing to sue for redress of the corporation’s injuries.

Although the amended complaint alleges these injuries

were inflicted on “Nocula and Alucon concurrently in

that UGS and UGS Poland knew that Nocula was the

owner of Alucon” and that “Nocula was using Alucon

in the Virtual Shop Project,” as to Nocula, this states a

shareholder injury only. Nocula’s injury as sole share-

holder, although indirect, may suffice to satisfy Article III

standing, but the prudential rule against shareholder

suits for injuries to the corporation precludes him from

bringing these claims because they belong to the corpora-

tion.

The district court thought Illinois law might permit

Nocula to bring the malicious prosecution claim in his

own name even though the Polish prosecution was di-

rected against the corporation only, citing Caspers v. Chicago

Real Estate Board, 206 N.E.2d 787, 789 (Ill. App. Ct. 1965).

We disagree. In Caspers, the Illinois Appellate Court

invoked the corporate veil-piercing “alter ego” concept

in a counterdoctrinal manner. Caspers did not use the

veil-piercing theory to disregard the corporate form in

order to hold a sole shareholder liable for the corporation’s

debts or obligations as the corporation’s alter ego because

5

Moreover, we note that in Illinois, as in other states, an

agreement of this sort is likely unenforceable because the

consideration—consisting of a promise to try to stop a criminal

prosecution—is against public policy. See Griner v. Griner,

340 N.E.2d 304, 305 (Ill. App. Ct. 1976).

14 Nos. 06-3386 & 06-3447

of commingling, undercapitalization, or failure to observe

corporate formalities, which is the usual application of

the theory. See Snyder v. Dunn, 638 N.E.2d 744, 748 (Ill.

App. Ct. 1994). Rather, the court in Caspers simply cited

the alter ego principle in a wholly summary fashion as

support for the proposition that the sole shareholder in

that case may sue for malicious prosecution of the corpora-

tion. Id. The court did not undertake any veil-piercing

analysis whatsoever or otherwise explain this novel use

of alter ego doctrine. In any event, Caspers has been se-

verely limited as precedent on this point by Loy v. Booth,

307 N.E.2d 414, 416 (Ill. App. Ct. 1974). Loy characterized

Caspers as follows: “Caspers . . . was a case of malicious

prosecution and the holding in that case was simply

that the plaintiff as the sole stockholder was the individual

actually injured rather than the corporation and theoreti-

cally could bring the action, although the case was

actually dismissed on other grounds.” Id. (citation omitted).

Accordingly, Caspers does not stand as precedent for a

general exception to the rule against shareholder standing

for malicious prosecution cases.6

To the extent Nocula asserts a personal claim for the lost

computers and accompanying engineering data, we

agree with the district court that it is barred by the act-of-

state doctrine. Nocula’s legal theory on this point is

unclear; as we have noted, the recognizable claims—for

6

We note that Illinois law disfavors actions for malicious

prosecution on policy grounds because of the strong public

interest in reporting possible crimes. See Allen v. Berger, 784

N.E.2d 367, 369-70 (Ill. App. Ct. 2002); Thomas v. Hileman,

775 N.E.2d 231, 234 (Ill. App. Ct. 2002); Rodgers v. Peoples Gas,

Light & Coke Co., 733 N.E.2d 835, 840 (Ill. App. Ct. 2000).

Nos. 06-3386 & 06-3447 15

malicious prosecution, fraudulent inducement, breach of

contract, and tortious interference—belong to Alucon,

and the rule against shareholder standing precludes

Nocula from asserting them. The amended complaint

alleges only that “UGS and UGS Poland wrongfully

seized valuable property belonging to Nocula, deprived

him of the use and value of it and are now unable to

return it or to cause it to be returned to him.” Actually,

the amended complaint is internally inconsistent on the

ownership of the computers, claiming both that the com-

puters were the property of Alucon and that they belonged

to Nocula personally. Whichever is true, any judicial

inquiry into the wrongful loss of the computers im-

plicates the act-of-state doctrine.

The act-of-state doctrine is a judicial rule that “generally

forbids an American court to question the act of a

foreign sovereign that is lawful under that sovereign’s

laws.” F. & H.R. Farman-Farmaian Consulting Eng’rs Firm

v. Harza Eng’g Co., 882 F.2d 281, 283 (7th Cir. 1989); First

Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 769

(1972) (“The act of state doctrine . . . is a judicially accepted

limitation on the normal adjudicative processes of the

courts, springing from the thoroughly sound principle

that on occasion individual litigants may have to forgo

decision on the merits of their claims because the involve-

ment of the courts in such a decision might frustrate the

conduct of the Nation’s foreign policy.”); Underhill v.

Hernandez, 168 U.S. 250 (1897); see also Sarei v. Rio Tinto,

PLC, 456 F.3d 1069, 1084-85 (9th Cir. 2006); Gross v. German

Found. Indus. Initiative, 456 F.3d 363, 391-92 (3d Cir. 2006).

Kin to the doctrine of sovereign immunity, the act-of-state

doctrine arises from the presumption of validity accorded

to the official public acts of a foreign country, see Underhill,

16 Nos. 06-3386 & 06-3447

168 U.S. at 252; Farman-Farmaian, 882 F.2d at 283, and

the concern that “application of customary principles of

law to judge the acts of a foreign sovereign might frustrate

the conduct of foreign relations by the political branches

of the government,” First Nat’l City Bank, 406 U.S. at 767-68.

The decision of a foreign sovereign to exercise its police

power through the enforcement of its criminal laws plainly

qualifies as an act of state. Accordingly, we have no

trouble concluding that the Polish prosecution of Alucon,

which included the seizure of the computers and their

subsequent loss, is an act of state for purposes of the

doctrine. The seizure of the property was obviously part

and parcel of the criminal prosecution. Notwithstanding

the amended complaint’s legal claim that “UGS and

UGS Poland wrongfully seized” Nocula’s property, the

more specific factual allegations make it clear, and

Nocula’s brief confirms, that the seizure was conducted by

Polish police in connection with the criminal prosecution.

The amended complaint further alleges that the “Polish

authorities” informed Nocula after the verdict that the

computers “mysteriously disappeared.” To the extent the

subsequent loss of the computers was wrongful (i.e.,

negligent), the loss is attributable to the Polish government,

not UGS. Accordingly, any personal claim by Nocula

seeking to hold UGS liable for the wrongful loss of the

computers would necessarily call for an inquiry into the

acts of a foreign sovereign and is barred by the act-of-state

doctrine.

Finally, Nocula alleges UGS “deliberately, tortiously and

maliciously harassed” him with threats of prosecution for

trespass and “other offenses.” There is no harassment tort

under Illinois law, though harassment may be a component

of a claim for intentional infliction of emotional distress. See

Nos. 06-3386 & 06-3447 17

Brackett v. Galesburg Clinic Ass’n, 689 N.E.2d 406, 409 (Ill.

App. Ct. 1997). Recognizing that complaints are not

required to state a legal theory of recovery, see Albiero v.

City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997); Bartholet

v. Reishauer A.G. (Zürich), 953 F.2d 1073, 1078 (7th Cir.

1992), we think it would stretch the bounds of notice

pleading beyond reasonable limits to interpret an allega-

tion of harassment as a claim for intentional infliction of

emotional distress.

For the foregoing reasons, TSI’s appeal is dismissed for

lack of appellate jurisdiction. Nocula’s malicious prosecu-

tion, fraudulent inducement, breach-of-contract, and

tortious interference claims are dismissed for lack

of standing pursuant to the rule against shareholder

standing. Nocula’s claim for the wrongful loss of his

property is barred by the act-of-state doctrine, and

his harassment claim fails to state a cognizable claim for

relief.

DISMISSED IN PART, AFFIRMED IN PART.

USCA-02-C-0072—3-24-08