United States District Court, N.D. Illinois, Eastern Division
May 10, 2005.
LUCILLE TAGLIERE, Plaintiff,
HARRAH'S ILLINOIS CORPORATION d/b/a HARRAH'S CASINO JOLIET, DEFENDANT.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Currently before the Court is Defendant's Motion to Dismiss. Plaintiff, a
patron in Defendant's riverboat casino, sued Defendant under Federal
Admiralty and Maritime Laws, 28 U.S.C. § 1333(1) (West 2005), for injuries
suffered while in the casino. Defendant moves to dismiss for lack of
jurisdiction. The Court agrees and, for the reasons set forth below, grants
On August 19, 2001, Plaintiff, Lucille Tagliere, entered the
premises of Defendant Harrah's Illinois Corporation, d/b/a
Harrah's Casino Joliet (Harrah's Casino), a riverboat casino, to
gamble and otherwise patronize Harrah's Casino. While there, Ms.
Tagliere apparently sat upon a chair, fell to the floor, and
suffered "severe injuries of a personal and pecuniary nature."
Pl.'s Comp. at ¶¶ 11-12. Ms. Tagliere alleges that Harrah's
negligence was the direct and proximate cause of her injuries. Id. at ¶¶ 10-12.
At the time of Ms. Tagliere's accident, Harrah's Casino was a
permanently moored riverboat.*fn1 See Aff. Of Brent
Willits. On June 26, 1999, the Illinois legislature amended
existing laws to allow dockside gambling on moored vessels.
Harrah's riverboat has not been used to transport cargo or
passengers since that time. Aff. Of Brent Willits.
Ms. Tagliere filed suit in federal court on August 10, 2004.
The case was originally assigned to Judge David H. Coar.
Defendant filed a Motion to Dismiss for lack of subject matter
jurisdiction on October 26, 2004. On December 3, 2004, the
parties consented to proceed before a Magistrate Judge, and the
case was reassigned to this Court.
Plaintiff asserts that this Court has jurisdiction over this
matter pursuant to the Federal Admiralty and Maritime Laws of the
United States, 28 U.S.C. § 1331(1) (West 2005). Defendant
disagrees, arguing that the Seventh Circuit has recently ruled
that federal courts do not have maritime jurisdiction over
permanently moored casinos, citing Howard v. Southern Illinois Riverboat Casino Cruises, Inc. 364 F.3d 854 (7th Cir.
Defendant overstates the Seventh Circuit's holding. In
Howard, the Seventh Circuit analyzed whether an employee
injured while working on a moored casino can sue his employer
under the Jones Act, 46 App U.S.C.A. § 688(a). Id. at 858. A
plaintiff satisfies the jurisdictional requirements of the Jones
Act if he can demonstrate that: 1) his duties contributed to the
function of the vessel; and 2) he has a "`substantial
employment-related connection to a vessel in navigation.'"
Id. at 856 (emphasis added) (quoting Chandris, Inc. v.
Latsis, 515 U.S. 347, 373 (1995). In focusing upon whether a
moored casino riverboat is a vessel in navigation, the court
looked to the casino's purpose and actual use. The court
concluded that "an indefinitely moored dockside casino with no
transportation function or purpose is not a vessel `in
navigation.'" Howard, 364 F.3d at 857.
Notably, the test for determining jurisdiction under the Jones
Act is different from the test for determining jurisdiction under
general admiralty and maritime law; unlike the dispute presented
in the Howard case, the present inquiry does not hinge upon the
existence of a "vessel in navigation."
Traditionally, in determining whether federal admiralty or
maritime jurisdiction exists, courts analyzed whether the tort occurred on navigable waters. Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co., 513 U.S. 527, 531 (1995). The United
States Supreme Court further refined the test, in Executive Jet
Aviation, Inc. V. City of Cleveland, 409 U.S. 249 (1972), by
requiring parties seeking federal maritime jurisdiction to also
establish that the underlying incident had some connection with
maritime activity. Id. at 534.
Three subsequent Supreme Court opinions further defined the
scope of the new "nexus test" announced in Executive Jet. In
Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 (1982), the
Court found that the collision of two pleasure boats had the
requisite nexus to maritime activity, because of the potentially
disruptive impact the collision may have had on maritime
commerce, coupled with the traditional admiralty court concern
over navigation. In Sisson v. Ruby, 497 U.S. 358, 362 (1990),
the Court restated the nexus test, requiring: 1) the potential
disruptive impact on maritime commerce; and 2) the activity
giving rise to the incident must bear a substantial relationship
to maritime commerce. The Sisson Court instructed that the
proper analysis must focus on the general features of the
incident involved, and must look at the potential, as opposed to
actual, disruption to commerce. Id. at 363.
Finally, in Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 539 (1995), the Supreme Court again noted that the first prong of the nexus test turned on "a description
of the incident at an intermediate level of possible generality."
The second prong of the nexus test hinged upon "whether a
tortfeasor's activity . . . is so closely related to activity
traditionally subject to admiralty law that the reasons for
applying the special admiralty rules would apply in the suit at
hand." Id. at 539-40.
Together, Executive Jet, Foremost, Sisson, and Grubart,
developed a two part test for determining maritime jurisdiction,
now referred to as the Locality and Nexus Tests. However, the
Locality and Nexus tests do not even come into play, if the
permanently moored casino riverboat is not a "vessel" under
I. Harrah's Casino is a Vessel
Although Defendant asks that the Court look to the Casino's
activities in relation to its arguments concerning nexus ie,
that the casino is more like a dockside marina or restaurant than
a vessel the argument raises the issue of whether Harrah's
Casino is a vessel under maritime law. Under maritime law, "a
craft is a `vessel' if its purpose is to some reasonable degree
`the tranportation of passengers, cargo, or equipment from
place to place across navigable waters.'" Great Lakes Dredge &
Dock Co. v. City of Chicago, 3 F.3d 225, 229 (7th Cir.
1993). The United States Supreme Court found that a "warfboat," which
was used as an office, warehouse, and warf, was not a vessel,
because it was "not practically capable of being used as a means
of transportation." Evansville & Bowling Green Packet Co. v.
Chero Cola Bottling Co., 271 U.S. 19, 22 (1926) (noting that the
boat had permanent utility connections to land and, because it
did not navigate, it was not exposed to the perils of
navigation). The Court noted that the warfboat "performed no
function that might not have been performed as well by an
appropriate structure on land." Id. More recently, the Fifth
Circuit ruled that an indefinitely moored floating dockside
casino was not a "vessel" under either the Jones Act or general
maritime law. Pavone v. Mississippi Riverboat Amusement Corp.,
52 F.3d 560, (5th Cir. 1995).
However, the Seventh Circuit ruled in Howard that an
indefinitely moored casino is, in fact a vessel. 364 F.3d at 856.
The court noted that the riverboat was connected to land-based
utilities, and that it had not left the dockside since the 1999
change in legislation, except in connection with propulsion tests
required by the Coast Guard. Id. Nevertheless, the court ruled
that the casino was a vessel, stating: "to be precise, it is
clear the Players II is a vessel." Id. The court did not
explain whether its decision hinged upon the periodic Coast Guard
testing, or simply the casino's potential for cruising. Pursuant to this precedent, this Court concludes that the Harrah's Casino
riverboat is a vessel.
II. The Incident Does Not Satisfy the Nexus Test
Having determined that Harrah's Casino is a vessel, the Court
must now determine whether it satisfies both the locality and
nexus tests for jurisdiction.
1. The Locality Test
The locality test "reflects the traditional requirement that a
tort occur on navigable waters." Weaver v. Hollywood
Casino-Aurora, Inc., 255 F.3d 379, 382 (7th Cir. 2001).
Although the test for determining whether a tort occurred on
navigable waters can be challenging, see Svendsen v. Hollywood
Casino-Aurora, Inc., No. 01 C 8408, 2002 WL 1424565 (N.D. Ill.
July 1, 2002), the present case is straightforward.
Plaintiff's Complaint alleges that the injury took place on the
Illinois River, near 151 N. Jefferson Street, in Joliet,
Illinois. Pl.'s Comp. At ¶ 6. See generally, Rexford Rand Corp.
v. Ancel, 58 F.3d 1215, 1218 (7th Cir. 1995) (A court may
accept good faith allegations of jurisdictional facts that are
not challenged.) There is no evidence before the Court that the
relevant portion of the Illinois River is not navigable, and
Defendant essentially concedes that the incident if it occurred
at all took place on navigable waters. See generally,
Svendsen, 2002 WL 1424565, at *1 ("where the parties have submitted evidentiary material relevant to a motion to dismiss
for lack of subject matter jurisdiction, such evidence may be
considered when reviewing the motion.") Therefore, the Court
readily concludes that Plaintiff has satisfied her burden under
the locality test.
2. The Nexus Test
The United States Supreme Court has stated that, although its
precedent does "not say that every tort involving a vessel on
navigable waters falls within the scope of admiralty jurisdiction
no matter what, they do show that ordinarily that will be so."
Grubart, 513 U.S. at 543. However, this Court is of the opinion
that the present case is the exception to the rule. Neither the
Supreme Court nor the Seventh Circuit has determined whether a
personal injury aboard a permanently moored casino invokes
maritime jurisdiction. Those courts that have been confronted
with that precise question have found that jurisdiction does not
exist. While this is a close case, the Court is persuaded that
the injury presented here does not have the requisite maritime
To satisfy the first prong of the nexus test, the incident must
have a potentially disruptive impact on maritime commerce.
Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 386
(7th Cir. 2001) (noting that the incident need not actually
disrupt maritime commerce). For example, in Sisson v. Ruby,
497 U.S. 358 (1990),*fn3 the Supreme Court concluded that a fire aboard a
recreation boat docked at a marina satisfied the first prong of
the nexus test, because the fire had the potential to spread to
commercial vessels engaged in maritime commerce. Conversely, the
Ninth Circuit concluded that there was no potential disruption to
maritime commerce where houseboat occupants were injured by
carbon monoxide fumes, because there was no potential harm to
other vessels. See, e.g., H2O Houseboat Vacations, Inc. v.
Hernandez, 103 F.3d 914 (9th Cir. 1996).
In applying this test, courts must assess the general features
or character of the activity giving rise to the incident.
Grubart, Inc., 513 U.S. at 538. Selecting the appropriate
description for the incident is critical; "we might get a
different result simply by characterizing the `activity' in
question at a different level of generality." Id. at 541-42.
The Seventh Circuit's discussion of competing definitions in
Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379 (7th
Cir. 2001) is instructive. The Weaver defendant described the underlying tort as "`an injury to a slot machine attendant on a
floating casino that cannot move beyond a confined area of
water,'" while the plaintiff offered a more general description
of the tort: "`an injury occurring during rescue efforts on a
vessel on navigable waters.'" 255 F.3d at 385. The court
concluded that the defendant's definition of the incident was too
narrow, and instead found that the "more appropriate description
would be an injury on board a vessel on navigable waters." Id.
at 386 (finding the requisite nexus to maritime activity.)
Similarly, defining the present incident as a gaming patron's
fall from a bar stool, while aboard a permanently moored,
floating casino wins the day for Defendant. But Weaver makes
clear that such a definition is impermissibly narrow and
specific. Instead, the Court finds that the appropriate
definition is a personal injury on board a moored vessel on
navigable waters. The Court finds that the fact that the vessel
was permanently moored is a critical aspect of this incident and
should be included in the general description.
Having defined the incident, the next step is to determine the
potential for the disruption of maritime commerce. The Weaver
court readily found the requisite nexus, because the casino "was
a commercial boat engaged in the transport of passengers for
profit . . . and without a doubt an injury to one of its crew
disrupts its participation in maritime commerce." 255 F.3d at 386. Conversely, Harrah's Casino is not engaged in
the transport of passengers. The injury of a passenger aboard a
moored vessel certainly does not present the potential risk to
maritime commerce that the injury to a crew member aboard a
navigating vessel does.
The Court acknowledges that Harrah's Casino's status as a
moored vessel is not dispositive; as discussed above, the Supreme
Court in Sisson found that the fire aboard a boat docked in a
marina had the potential to disrupt maritime commerce, because
the fire could have "spread to nearby commercial vessels or
ma[d]e the marina inaccessible to such vessles." 497 U.S. at 362.
Unlike a fire, it is difficult to see how Plaintiff's injury
could have disrupted either Harrah's business, or the maritime
commerce of nearby commercial vessels.
The Court concludes that an injury to a patron aboard a vessel
that is permanently moored does not potentially disrupt maritime
commerce. See Arch v. Treasure Chest Casino, LLC., 306 S.
Supp.2d 640, 646 (E.D. La. 2004) (finding that a crew member's
injury aboard a permanently moored casino did not have the
requisite nexus for maritime jurisdiction.)
Even if the Court were to conclude that Plaintiff had satisfied
the first prong of the nexus test, Plaintiff cannot satisfy the
second prong of the nexus test, because the activity giving rise
to the incident did not arise out of traditional maritime activity. In Grubart, the Supreme Court stated that
courts should look to the "activity giving rise to the incident"
to see if it bore a "substantial relationship" to traditional
maritime activity. 513 U.S. at 541. The Court summarized its
prior decisions, and noted that the navigation of vessels on
navigable waters clearly satisfies the test, Id. at 540 (citing
Foremost, 457 U.S. at 675); that storing a boat at a marina on
navigable waters is close enough, Id. (citing Sisson,
497 U.S. at 367); but that flying an airplane over the water or
swimming is too attenuated to satisfy the test. Id. (citing
Executive Jet, 409 U.S. at 270-71 and 255-56.)
In the instant case, running a casino is not a traditional
maritime activity. While the Seventh Circuit found the requisite
connection in Weaver, which also involved a riverboat casino,
the court's decision hinged upon the fact that the casino was
navigating and transporting passengers, noting that "even
noncommercial vessels when navigating in navigable waters have
a substantial relationship to traditional maritime activities."
255 F.3d at 386 (citing Foremost Ins. Co. v. Richardson,
457 U.S. 668 (1982)).
Conversely, in the instant case, Harrah's Casino was not
navigating at the time the incident occurred. Rather, the
riverboat was moored at the dock, and had been for over two
years. A riverboat that is not transporting cargo or passengers is not like the riverboat in Weaver could be said to be
engaged in the transport of passengers for profit. The
riverboat's only purpose is gaming, and Plaintiff has failed to
identify any caselaw connecting gaming or gambling to traditional
maritime activity. See, e.g. Davis v. Players Lake Charles
Riverboat Inc., 74 F. Supp.2d 675, 676 (W.D. La. 1999) ("gaming
is not substantially related to a traditional maritime
activity.") Therefore, the Court finds that Plaintiff cannot
satisfy the nexus test for maritime jurisdiction.
Having determined that Plaintiff cannot satisfy the nexus test,
the Court agrees that federal admiralty or maritime jurisdiction
does not exist. Therefore, the Defendant's Motion to Dismiss for
lack of jurisdiction is granted.