Binns v. Caesars Entertainment Corporation et al

Filing 21

ORDER denying without prejudice [7 the Plaintiff, John Binns' Motion to Remand to the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. John Binns is given leave up to and including October 28, 2014, to file his S econd Amended Complaint. Failure to file an amended complaint that addresses the Court's concerns as delineated above shall result in John Binns' Amended Complaint being dismissed and the case closed without further notice. Signed by Judge Sheri Polster Chappell on 10/21/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN BINNS, an individual
Plaintiff,
v.

Case No: 2:14-cv-506-FtM-38DNF

CAESARS
ENTERTAINMENT
CORPORATION,
CAESARS
ENTERTAINMENT
OPERATING
COMPANY, CAESARS WORLD,
INC., HARRAH’S ATLANTIC CITY
PROPCO, LLC and HARRAH’S
ATLANTIC
CITY
OPERATING
COMPANY, LLC,
Defendants.
/
ORDER 1
This matter comes before the Court on the Plaintiff, John H. Binns’ Motion to
Remand to the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida
(Doc. #7) filed on September 17, 2014.

The Defendants filed their Response in

Opposition (Doc. #12) on October 1, 2014. The Motion is now fully briefed and ripe for
the Court’s review.
In his Motion, John Binns seeks to voluntarily dismiss his federal subject matter
claim found in Count 57 filed pursuant to 42 U.S.C. § 1983 and to remand the case to the

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State Court. John Binns filed Notice (Doc. #13) stating that he voluntarily withdraws,
under Fed. R. Civ. P. 41(a), Count 57 which involves federal subject matter jurisdiction
pursuant to 42 U.S.C. § 1983. John Binns argues that since the § 1983 claim has been
removed and only state law claims remain, the case should be remanded because the
Court has lost subject matter jurisdiction. The Defendants state that John Binns cannot
withdraw the §1983 claim arguing that Fed. R. Civ. P. 41(a) only allows the entire case to
be dismissed and not just part of the action.
“Generally, a plaintiff may ask the court to dismiss an action at any time.” Anago
Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1276 (11th Cir.2012). “[I]n most cases a
dismissal should be granted unless the defendant will suffer clear legal prejudice, other
than the mere prospect of a subsequent lawsuit, as a result.” McCants v. Ford Motor Co.,
Inc., 781 F.2d 855, 856–57 (11th Cir.1986). In the Eleventh Circuit, however, a plaintiff
can only seek to dismiss its entire action and cannot pick and choose which claims are
to be dismissed. IberiaBank v. Coconut 41, LLC, 984 F.Supp.2d 1283, 1295 (M.D. Fla.
2013) (citing Campbell v. Altec Indus., Inc., 605 F.3d 839, 841 (11th Cir.2010) (citing Klay
v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir.2004)).
John Binns’ Notice dismissing Count 57 pursuant to Fed. R. Civ. P. 41(a) is
inappropriate under Eleventh Circuit precedent. IberiaBank v. Coconut 41, LLC, 984
F.Supp.2d at 1295. Put simply, Rule 41 allows a plaintiff to dismiss all of his claims
against a particular defendant; its text does not permit plaintiffs to pick and choose,
dismissing only particular claims within an action. Id. “A plaintiff wishing to eliminate
particular claims or issues from the action should amend the complaint under Rule 15(a)
rather than dismiss under Rule 41(a).” J.C. Gibson Plastering Co., Inc. v. XL Specialty

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Ins. Co., 2007 WL 2128183, *1 (M.D. Fla. July 25, 2007). John Binns’ Motion to Remand
to State Court is denied because he cannot remove the single count from his Amended
Complaint. Thus, this Court at this time still maintains jurisdiction.
Having determined that the Court continues to maintain jurisdiction over the case,
the Court will now consider the Amended Complaint itself. After review of John Binns’
Amended Complaint the Court finds that the Amended Complaint fails to present a
sufficient factual basis to establish a § 1983 claim.
John Binns alleges the Defendants violated his constitutional rights and brings
charges against the Defendants pursuant to 42 U.S.C. § 1983. As is plain from the
statute, § 1983 only applies against those who act under the color of law. Desravines v.
Orange County Sheriff's Office, 2010 WL 5491235, *5 (M.D. Fla. December 15, 2010). In
order “[t]o establish a claim under 42 U.S.C. § 1983, [plaintiff] must prove (1) a violation
of a constitutional right, and (2) that the alleged violation was committed by a person
acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir.2005)
(emphasis added) (citing West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed.2d
40 (1988)). Defendants acting under color of state law are “clothed with the authority of
state law,” West, 487 U.S. at 49 (citations omitted), and their “deprivation of a federal right
[must] be fairly attributable to the State.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,
937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). While Binns states the Defendants’, all
private corporations and employees, were acting under color of state law he presents no
facts to support such a conclusion.
“Only in rare circumstances can a private party be viewed as a ‘[S]tate actor’ for
section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992). To find

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Defendants state actors, this Court must find either: “(1) the State has coerced or at least
significantly encouraged the action alleged to violate the Constitution (‘State compulsion
test’); (2) the private parties performed a public function that was traditionally the
exclusive prerogative of the State (‘public function test’); or (3) ‘the State had so far
insinuated itself into a position of interdependence with the [private parties] that it was a
joint participant in the enterprise.’ (‘nexus/joint action test’).” Rayburn ex rel. Rayburn v.
Hogue, 241 F.3d 1341, 1347 (11th Cir.2001) (quoting NBC, Inc. v. Commc'n Workers of
Am., 860 F.2d 1022, 1026–27 (11th Cir.1988)). None of those factors have been alleged
by John Binns in his Amended Complaint and he provides no factual basis to support
such a claim.
The Court concludes that John Binns’ § 1983 claims lack merit as pled. Moreover,
because the Plaintiff has added a Florida Defendant the case lacks diversity jurisdiction.
Thus, John Binns will be allowed leave to amend his Amended Complaint and either
remove the § 1983 claims altogether or establish that a state actor was involved. In
addition, a simple review of Plaintiffs’ Complaint makes it apparent that the Complaint is
a quintessential shotgun pleading. Plaintiff is advised to remedy this deficiency as well.
Accordingly, it is now
ORDERED:
(1)

The Plaintiff, John Binns' Motion to Remand to the Circuit Court of the Twentieth

Judicial Circuit in and for Lee County, Florida (Doc. #7) is DENIED without prejudice.
(2)

John Binns is given leave up to and including October 28, 2014, to file his Second

Amended Complaint. Failure to file an amended complaint that addresses the Court’s

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concerns as delineated above shall result in John Binns’ Amended Complaint being
dismissed and the case closed without further notice.
DONE and ORDERED in Fort Myers, Florida this 21st day of October, 2014.

Copies: All Parties of Record

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