Mallette v. Illinois State Lottery
Filing
16
OPINION entered by Judge Sue E. Myerscough on 1/24/2018. Defendant Illinois State Lottery's Motion to Dismiss Amended Complaint, d/e 9 is GRANTED. The Plaintiff's Amended Complaint against the Illinois State Lottery, Governor Bruce Rauner and Northstar Lottery Group is DISMISSED WITHOUT PREJUDICE. This case is CLOSED. (SEE WRITTEN OPINION) (MAS, ilcd)
E-FILED
Thursday, 25 January, 2018 10:00:03 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KEVIN P. MALLETTE,
)
)
Plaintiff,
)
)
v.
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)
ILLINOIS STATE LOTTERY,
)
GOVERNOR BRUCE RAUNER, and )
NORTHSTAR LOTTERY GROUP, )
)
Defendants.
)
No. 17-3127-SEM-TSH
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Before the Court is Defendant Illinois State Lottery’s Motion to
Dismiss Amended Complaint (d/e 9). Plaintiff Kevin Mallette filed
the Complaint in this case (d/e 1) on May 11, 2017, against
Defendant Illinois State Lottery, alleging that he had been
fraudulently deprived of his lottery winnings. In response, the
Illinois State Lottery filed a Motion to Dismiss (d/e 2) and an
accompanying Memorandum of Law (d/e 3). The Court granted
Defendant’s Motion and dismissed Plaintiff’s Complaint without
prejudice for lack of subject matter jurisdiction.
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Plaintiff filed the Amended Complaint (d/e 8) on September
25, 2017, which also included Governor Bruce Rauner and
Northstar Lottery Group as Defendants.1 Defendant Illinois State
Lottery has again filed a Motion to Dismiss under Federal Rule of
Civil Procedure 12(b)(6) (d/e 9) and an accompanying Memorandum
of Law (d/e 10), arguing that Plaintiff’s claim fails to state a claim
upon which relief may be granted. Defendant Illinois State Lottery
further alleges that Plaintiff has not met the heightened standard of
pleading for a fraud case set forth in Federal Rule of Civil Procedure
9(b), that this Court lacks jurisdiction to hear Plaintiff’s claim, and
that Plaintiff’s Complaint is barred by the Eleventh Amendment to
the Constitution of the United States. Plaintiff disagrees with
Defendant’s arguments in his Response to the Motion to Dismiss,
again asserting that the Illinois Lottery is a corporation, not a state
agency, and accordingly is not entitled to Eleventh Amendment
1 The
Court notes that the additional Defendants have not responded, however
it is not clear if these additional Defendants have been properly served.
Plaintiff included a certificate of service indicating that all parties had been
served via “hand delivery.” See Amend. Comp. at 3 (d/e 8). Plaintiff is required
to comply with the requirements of Federal Rule of Civil Procedure 4 in order to
effect service on these additional Defendants. However, whether the Defendants
have been properly served will not have a bearing on the outcome of this
motion.
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immunity (d/e 15). Additionally, Plaintiff argues that Defendant’s
Motion to Dismiss is untimely pursuant to Federal Rule of Civil
Procedure 15.
Defendant Illinois State Lottery’s Motion is GRANTED, and
Plaintiff’s Amended Complaint is DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction as to all
Defendants. Plaintiff is not granted leave to amend.
I. BACKGROUND
The facts as stated in the complaint must be accepted by the
Court as true when ruling on a motion to dismiss. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The following
information is taken from the allegations in the Amended
Complaint.
On September 9, 2016, Plaintiff purchased a ticket for the
Illinois Lottery’s $5,000 a Week for Life instant game. That ticket
revealed that Plaintiff had the necessary symbol to win the “15
prizes as stated on the ticket.” “When Plaintiff attempted to cash in
the ticket, he was informed that the ticket value was $100.00.”
Plaintiff asserts that the value of his ticket was actually
$3,914,000.00 and that Defendants knew or should have known
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that this was the value of his ticket. By not paying Plaintiff the
value of the ticket and “enforcing actual wins” the Defendants have
“participated in fraud and willful deception to the unsuspecting
Public.”
II. JURISDICTION
This Court has jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States,” 28 U.S.C.
§ 1331, as well as over “all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States.”
28 U.S.C. § 1332(a).
Plaintiff has correctly noted that Defendants did not timely
respond to Plaintiff’s Amended Complaint pursuant to Federal Rule
of Civil Procedure 15. However, under Federal Rule of Civil
Procedure 12(h)(1), “[i]f the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(1). See also Arbaugh v. Y&H Corp.,
546 U.S. 500, 506, 126 S. Ct. 1235, 1240, 163 L. Ed. 2d 1097
(2006) (“The objection that a federal court lacks subjectmatter jurisdiction, may be raised by a party, or by a court on its
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own initiative, at any stage in the litigation, even after trial and the
entry of judgment.”).
A pleading that states a claim for relief must contain a “short
and plain statement of the grounds for the court’s jurisdiction”
pursuant to Federal Rule of Civil Procedure 8(a)(1). Plaintiff has
still not provided such a statement. However, pro se complaints are
construed liberally by the Court and held to a “less stringent
standard than formal pleadings drafted by lawyers.” Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015); see also Curtis v.
Bembenek, 48 F.3d 281, 283 (7th Cir. 1995) (noting that “in
reviewing a pro se complaint, we must employ standards less
stringent than if the complaint had been drafted by counsel”).
Plaintiff’s Amended Complaint states it is being brought
pursuant to the Uniform Commercial Code and the Uniform Sales
Act. However, these are state laws, to the extent a state chooses to
enact all or part of them, and not federal laws. Plaintiff’s confusion
may have arisen from the fact that many states have passed similar
laws, such that the “uniform” goal of these model laws has been to
some extent achieved. However, the fact that states may have
uniform laws does not transform them into federal laws.
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In dismissing Plaintiff’s original Complaint, this Court
attempted to discern a potential claim that would give the
jurisdiction under 28 U.S.C. § 1331. See Opinion at 4 (d/e 7). The
Court was only able to discern a potential claim against Defendant
for mail fraud under 18 U.S.C. § 1341. However, the Amended
Complaint still contains no allegations regarding any use of the
mails by Defendant in furtherance of an alleged fraudulent scheme.
See Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 657 (7th
Cir. 2015) (citations omitted). As such, the Amended Complaint
does not assert a federal law claim under § 1341 or another cause
of action. The Court therefore does not have subject-matter
jurisdiction over Plaintiff’s claim under 28 U.S.C. § 1331.
Nor is jurisdiction established in diversity under 28 U.S.C.
§ 1332(a): Plaintiff is a resident of Illinois suing the Illinois Lottery,
a state department operating under the executive branch of Illinois.
See 20 ILCS 5/5-15 (2011). Additionally, even if the additional
Defendants, Governor Bruce Rauner and Northstar Lottery Group,
are not residents of Illinois—which the Court highly doubts—
diversity jurisdiction would still not be established because of a lack
of complete diversity. See Exxon Mobil Corp. v. Allapattah Servs.,
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Inc., 545 U.S. 546, 553 (2005) (“[W]e have consistently interpreted
§ 1332 as requiring complete diversity: In a case with multiple
plaintiffs and multiple defendants, the presence in the action of a
single plaintiff from the same State as a single defendant deprives
the district court of original diversity jurisdiction over the entire
action.”). Plaintiff’s Amended Complaint consequently must be
dismissed for lack of subject matter jurisdiction as to all
Defendants.
Moreover, Plaintiff still has not overcome the fact that
Plaintiff’s claims against the Illinois State Lottery are barred by the
Eleventh Amendment, as discussed in the Court’s previous order
dismissing this case. See Order at 5 (d/e 7). Plaintiff’s citation to
Burrus v. State Lottery Comm’n of Ind., 546 F.3d 417 (7th Cir.
2008), is inapposite. In Burrus, the Seventh Circuit held that the
State Lottery Commission of Indiana could not assert an Eleventh
Amendment immunity defense. See Id. at 417-18. As the Northern
District of Illinois explained in Rasche v. Lane, 150 F. Supp. 3d
934, 939 (N.D. Ill. 2015), “[i]n Burrus, the defendant was not a
department of the state of [ ] Indiana; it was a “commission” whose
relationship to the state was not readily apparent. [ ] Thus, the
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Seventh Circuit was required to conduct a detailed analysis to
determine whether the lottery commission could be deemed an “arm
of the state” for Eleventh Amendment purposes, considering such
factors as its legal structure and its financial relationship to the
state.” Id. at 939 (internal citations omitted). By contrast, the
Illinois State Lottery is a state department, see 20 ILCS 5/5-15
(2011), and prior binding precedent holds that state departments
are covered under the Eleventh Amendment. See Rasche, 150 F.
Supp. 3d at 939-40. See also, Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course, that in
the absence of consent a suit in which the State or one of its
agencies or departments is named as the defendant is proscribed by
the Eleventh Amendment”).
Plaintiff has already had one opportunity to amend his
complaint and state a claim upon which this Court would have
subject-matter jurisdiction and was not able to do so. The Court
finds that giving Plaintiff another opportunity to amend his
complaint would be futile, therefore Plaintiff is not granted leave to
amend. See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328,
347 (7th Cir. 2012) (“We have stated that a district court is not
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required to grant [leave to amend] when a plaintiff has had multiple
opportunities to state a claim upon which relief may be granted.”)
(citing Emery v. Am. Gen. Finance, Inc., 134 F.3d 1321, 1322–23
(7th Cir.1998)).
III. CONCLUSION
For the reasons stated herein, Plaintiff’s Amended Complaint
against the Illinois State Lottery, Governor Bruce Rauner, and
Northstar Lottery Group (d/e 9) is DISMISSED WITHOUT
PREJUDICE. The Clerk is directed to mail a copy of this Order to
the address on file for Plaintiff. This case is CLOSED.
ENTER: January 24, 2018
/s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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