Opinion
NO: 2:06-CV-413.
August 6, 2007
OPINION AND ORDER
This matter is before the Court on Defendants, R.I.H. Acquisitions Indiana, LLC d/b/a Resorts East Chicago and Diane Hensley's, Motion to Dismiss for Failure to State a Claim upon Which Relief Can be Granted Or Motion to Dismiss for Lack of Subject Matter Jurisdiction, or in the Alternative, Motion for More Definite Statement, filed on December 27, 2006 [DE 12]. For the reasons stated below, this motion [DE 12] is GRANTED, and the Clerk is ORDERED to DISMISS this case WITH PREJUDICE. Furthermore, Defendants' request for a hearing on the motion to dismiss [contained in DE 27 and 32] is DENIED and Defendants, R.I.H Acquisitions Indiana, LLC d/b/a Resorts East Chicago and Diane Hensley's, Memorandum of Law in Support of Motion to Dismiss [DE 30] is STRICKEN.
BACKGROUND
On December 12, 2006, Jesse Robinson ("Robinson") filed a complaint naming Resorts East Chicago Casino, Diane Hensky (the beverage server supervisor), Jane Doe (a beverage server), and John Doe #1 (a security officer), John Doe #2 (also a security officer), and Reggie Doe (the security officers' supervisor) as defendants. The complaint is brought pursuant to 42 U.S.C. section 1983, and alleges violations of Robinson's First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendment rights under the United States Constitution, allegedly resulting from an altercation with Jane Doe and subsequent events that involved Diane Hensley, John Doe #1, John Doe #2, and Reggie Doe. Robinson alleges that he was mistreated and discriminated against by Defendants.
This appears to be a misspelling referencing Diane Hensley.
In response to Robinson's complaint, Defendant filed the instant motion to dismiss. The motion alleges that the complaint should be dismissed both because it fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) and because this Court lacks subject matter jurisdiction. The motion also requests that, should this Court not dismiss the matter, that plaintiff be ordered to file a more definite statement.
On January 23, 2007, this Court took the instant motion under advisement, and ordered Robinson to file a response on or before February 5, 2007. Plaintiff was warned that failure to respond may result in the Court summarily ruling on this matter. In response, Robinson sought appointment of counsel, and this Court delayed ruling on the instant motion while the magistrate judge determined whether appointment of counsel was appropriate. On May 22, 2007, a hearing was held regarding Robinson's request for appointment of counsel. Robinson failed to appear, and the request was denied, for failure to prosecute the motion. In keeping with his failure to prosecute this matter, Robinson has failed to file a response to the instant motion to dismiss.
Additionally, Defendants May 1, 2007 filing sought a hearing on the instant motion to dismiss. And, on May 25, 2007, Defendant filed a document titled "Defendants, R.I.H. Acquisitions Indiana, LLC d/b/a Reports East Chicago and Diane Hensley's, Memorandum of Law in Support of Motion to Dismiss." The filing of this memorandum, five months after the initial motion, is not provided for in the Federal Rules of Civil Procedure, and Defendants did not seek leave of court to supplement its motion. Accordingly, the memorandum [DE 30] is STRICKEN and has not been considered by this Court in reaching its decision.
DISCUSSION
For the purpose of analyzing Defendants' Rule 12(b)(1) claim, the following standards apply. Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the "power to decide" and must be conferred upon a federal court. In re Chicago, Rock Island Pac. R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). When jurisdictional allegations are questioned, the plaintiff has the burden of proving that the jurisdiction requirements have been met. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). In reviewing a Rule 12(b)(1) motion to dismiss, the Court may look beyond the complaint and review any extraneous evidence submitted by the parties to determine whether subject matter jurisdiction exists. United Transp. Union v. Gateway Western R.R. Co., 78 F.3d 1208, 1210 (7th Cir. 1996).
To the extent Defendants' claims are under Rule 12(b)(6), the Court will apply the following guidelines. The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, not to decide the merits. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In determining the propriety of dismissal under Federal Rule of Civil Procedure 12(b)(6), the court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the light most favorable to the plaintiff. Johnson v. Rivera, 272 F.3d 519, 520 (7th Cir. 2001). A court may dismiss a complaint only if it appears beyond doubt the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Further, a court must "construe pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). A complaint need not plead law or be tied to one legal theory. LaPorte County Republican Cent. Comm. v. Board of Comm'rs of the County of LaPorte, 43 F.3d 1126, 1129 (7th Cir. 1994) (citing Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992)). A complaint may not be dismissed just because it omits factual allegations, but it may be dismissed when the plaintiff makes clear that he does not plan to prove an essential element of his case. Id.
Subject Matter Jurisdiction
Failure to State a Claim
28 U.S.C. §§ 13311343See Bell v. Hood327 U.S. 678776Jogi v. Voges480 F.3d 822826Id. 12DENIED.42 U.S.C. section 1983See West v. Atkins487 U.S. 4248 Case v. Milewski327 F.3d 564566
While there are exceptions by which private defendants may be considered to be acting under color of state law, this Court has considered those exceptions and finds none applicable here. See Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996).
CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss [DE 12] is GRANTED, and the Clerk is ORDERED to DISMISS this case WITH PREJUDICE; Defendants' request for a hearing on the motion to dismiss [contained in DE 27 and 32] is DENIED; and, Defendants, R.I.H Acquisitions Indiana, LLC d/b/a Resorts East Chicago and Diane Hensley's, Memorandum of Law in Support of Motion to Dismiss [DE 30] is STRICKEN.