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Dolly's Cafe LLC v. Illinois Gaming Board,

United States District Court, N.D. Illinois, Eastern Division

December 6, 2019

DOLLY'S CAFE LLC, Plaintiff,
ILLINOIS GAMING BOARD, et al., Defendants.


          Virginia M. Kendall United States District Judge

         Plaintiff Dolly's Café, LLC, doing business as Lulu's Place, brings this suit pursuant to 42 U.S.C. § 1983. Plaintiff's three-count Amended Complaint alleges violations of the Due Process and Equal Protection clauses, along with a state law claim for Administrative Review under 735 ILCS 5/3-101. (Dkt. 17). Plaintiff operates a video gaming establishment and is challenging the decision of the Illinois Gaming Board to shut down all five gaming terminals at its location. Defendants filed the instant Motion to Dismiss for lack of subject-matter jurisdiction and failure to state a claim. For the reasons outlined below, Defendants' Motion is granted, and Plaintiff's Amended Complaint is dismissed.


         Plaintiff applied to the Illinois Gaming Board for a video gaming license on October 12, 2015. (Dkt. 17, pg. 5). After multiple visits by the Gaming Board to Plaintiff's premise, the Gaming Board approved Plaintiff's license application on November 16, 2017. (Id. at pg. 6). About one year later, Defendant Ron Jones, a Gaming Board investigator, visited Plaintiff's location. (Id.). Plaintiff and the establishment immediately next door to it share a common owner. (Id. at pg. 16). Jones informed Plaintiff that it was not allowed to own and operate adjacent establishments which both had gaming licenses. (Id.). Later that day, the Gaming Board shut down the video game terminals at Lulu's Place. (Id.). The same day, the Gaming Board provided Plaintiff with its reasoning for shutting down the gaming terminals. (Id.). The letter read, in part:

When two or more adjacent businesses appear to the Administrator to be a single business, or are operated by the same or commingled ownership, then the Administrator may limit those businesses to the maximum number of video gaming terminals. The maximum will be the number permitted under Illinois law for one business as the total number of video gaming terminals authorized for both or more such businesses, where the administrator determines that the limitation would further the intent of the Act and the integrity of video gaming in the State of Illinois.

(Id.). The letter from the Gaming Board also informed Plaintiff that, “pursuant to Board Rule 1800.615, [Plaintiff] may request a hearing of this determination.” (Dkt. 32, pg. 29). Further, the Gaming Board explained that any hearing challenging the decision would “be a de novo proceeding where [Plaintiff] will have the burden of proving by clear and convincing evidence [its] suitability to maintain 5 video gaming terminals at each establishment.” (Id.). Plaintiff does not allege it undertook any efforts to seek relief before the Illinois Gaming Board or in the state court system and instead attempts to redress these purported violations at the first instance in federal court. Plaintiff asserts it has sustained $152, 684.00 in lost business revenue. (Dkt. 17, pg. 14).

         Defendants first moved to dismiss Plaintiff's Original Complaint filed March 8, 2019. (Dkt. 12). The Court entered a briefing schedule on the motion and instead of responding, Plaintiff filed, without seeking leave, its Amended Complaint nearly a month after its response to the motion to dismiss was due. (Dkts. 15, 17). Regardless, the Court accepted the Amended Complaint and Defendants' first motion to dismiss was rendered moot. (Dkt. 21). Thereafter, Plaintiff filed a Motion to Seal and Supplement its Amended Complaint. (Dkt. 22). The motion sought to file a sealed Second Amended Complaint due to certain personally sensitive material contained within. (Id.). The proposed Second Amended Complaint was contained within the motion, not attached as a separate exhibit. (Id.). The Court granted the motion to file a sealed Second Amended Complaint (Dkt. 23), but Plaintiff never filed the proposed Second Amended Complaint on the docket. Because of this, Defendants moved to dismiss the Amended Complaint-which, as the docket currently stands, appears as the operative Complaint. Despite Plaintiff's failure and Defendants' excusable oversight, the confusion is of no import here. The Amended Complaint and Second Amended Complaint are identical, with the only difference being Plaintiff's intent to have the latter filed under seal. Therefore, any arguments in favor of, or opposed to, dismissal are applicable to either pleading and the outcome would be the same regardless.


         In reviewing a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, the court must assess whether the plaintiff carried its burden of establishing that jurisdiction is proper. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588-89 (7th Cir. 2014). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, … which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). To determine whether jurisdiction exists, the court turns to the complaint along with evidence outside of the pleadings. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). A court lacking subject-matter jurisdiction must dismiss the action without proceeding to the merits. Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (7th Cir. 2006).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A Rule 12(b)(6) motion is meant to challenge the legal sufficiency of the complaint. Christiansen v. Cnty. of Boone, Ill., 483 F.3d 454, 457 (7th Cir. 2007). The Court accepts all well-pleaded allegations as true and views them in a light most favorable to plaintiff. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012). Though, the Court need not accept as true statements of law or statements that are merely conclusory and unsupported factual allegations. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). Plaintiff's complaint must allege facts that establish its right to relief is more than speculative. Cochran v. Ill. State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).


         I. Proper defendants in § 1983 actions

         The Eleventh Amendment serves as a bar to certain federal court actions “against a state, state agencies, or state officials acting in their official capacities.” Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010). While exceptions do exist, suits under § 1983 are not one of those recognized exceptions. Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (“[A] state and its agencies are not suable ‘persons' within the meaning of section 1983.”).

         Initially, to the extent that Plaintiff seeks to name the Illinois Gaming Board in either of its Fourteenth Amendment claims, the Gaming Board, as a state agency, is dismissed as an improper party. Thomas, 697 F.3d at 613. Plaintiff's Amended Complaint is less than clear with regard to whether Defendants are sued in their individual or official capacities and whether Plaintiff seeks monetary or injunctive relief.[1] On its face, the Amended Complaint seeks to hold the individual Defendants liable on the Due Process and Equal Protection claims solely in their official capacity. (Dkt. 17, pg. 9). Yet, Plaintiff goes on to seek compensatory and punitive damages against each Defendant. (Id. at pg. 14). In an attempt to clarify its position, ...

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