United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge
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.
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).
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.
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).
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
Proper defendants in § 1983 actions
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.”).
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. 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