Mallette v. Illinois State Lottery

Filing 7

OPINION: Plaintiff's Complaint against the Illinois State Lottery (d/e 1 ) is DISMISSED WITHOUT PREJUDICE. Plaintiff is given 30 days from the date of this Order to file an amended complaint. The Clerk is directed to mail a copy of this Order to the address on file for Plaintiff. SEE Written Order. Entered by Judge Sue E. Myerscough on 8/22/2017. (ME, ilcd)

E-FILED

Friday, 25 August, 2017 01:09:29 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KEVIN P. MALLETTE,

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Plaintiff,
v.
ILLINOIS STATE LOTTERY,
Defendant.

No. 17-3127-SEM-TSH

OPINION

SUE E. MYERSCOUGH, U.S. District Judge.
Before the Court is Defendant’s Motion to Dismiss the
Complaint (d/e 2). 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, Defendant filed a Motion to Dismiss
(d/e 2) and an accompanying Memorandum of Law (d/e 3).
Defendant moves to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6), arguing that Plaintiff’s claim fails to state a
claim upon which relief may be granted. Defendant 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

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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,
asserting that the Illinois Lottery is a corporation, not a state
agency, and accordingly is not entitled to Eleventh Amendment
immunity (d/e 6).
Defendant’s Motion is GRANTED, and Plaintiff’s Complaint is
DISMISSED WITHOUT PREJUDICE for lack of subject matter
jurisdiction. Plaintiff is given 30 days from the date of this Order to
file an amended complaint.
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 Complaint and the
exhibit attached thereto.
On September 9, 2016, Plaintiff purchased a ticket for the
Illinois Lottery’s $5,000 a Week for Life instant game. That ticket
revealed a set of numbers, none of which matched the listed

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“winning” numbers, and a sack-shaped symbol atop the phrase
“WINALL.” Such a sack symbol entitles a ticketholder to “win all 15
prizes,” according to the key on the ticket’s front. Added up, the
fifteen prizes on Plaintiff’s ticket totaled $100.
Plaintiff asserts that the ticket was a scam, as the ticket did
not reveal the $5,000 a Week for Life prize, even though there were
fifteen “[m]oney bag symbols” on his ticket. He seeks $3,914,000 in
compensatory damages for his alleged actual winnings and an
additional $9,000,000 in punitive damages for fraud.
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).
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 not
provided such a statement. However, pro se complaints are

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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”).
Applying this leniency to Plaintiff’s Complaint, the Court
discerns a potential claim against Defendant for mail fraud under
18 U.S.C. § 1341. However, the Complaint 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).
However, Plaintiff has neither alleged nor indicated any use of the
mails. As such, the 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.

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See 20 ILCS 5/5-15 (2011). Plaintiff’s Complaint consequently
must be dismissed for lack of subject matter jurisdiction.
Moreover, Defendant correctly argues that Plaintiff’s claim is
barred by the Eleventh Amendment, which has long been
interpreted to prohibit suits by citizens against their state
government. U.S. Const. amend. XI; Meadows v. Indiana, 854 F.2d
1068, 1069 (7th Cir. 1988) (citing Hans v. Louisiana, 134 U.S. 1
(1890). See also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 6566, 74 (1996) (holding that Congress may not abrogate a State’s
immunity when it acts under its original Article I authority to
regulate commerce). “If properly raised, the amendment bars
actions in federal court against a state, state agencies, or state
officials acting in their official capacities.” Ind. Prot. & Advocacy
Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 370 (7th
Cir. 2010). In accordance with Illinois state law, the Illinois Lottery
is properly considered a state department and is thus entitled to
Eleventh Amendment immunity. See Rasche v. Lane, 150 F. Supp.
3d 934, 939 (N.D. Ill. 2015) (citing 20 ILCS 5/5-15 (2011) (“The
Departments of State government are created as follows: . . . The
Department of the Lottery. . . . ”)).

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There are exceptions to state immunity. Congress may
abrogate the Eleventh Amendment immunity of a State by statute
in limited circumstances, and a State itself may waive its immunity
“only where stated by the most express language or by such
overwhelming implication from the text as will leave no room for any
other reasonable construction.” Port Auth. Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 304-5 (1990).
Neither exception applies here. As previously discussed, the
Complaint implicates no federal law as the basis for its claim, let
alone a federal law in which Congress has unequivocally abrogated
the state’s immunity. See Nunez v. Ind. Dept. of Child Servs., 817
F.3d 1042, 1044 (7th Cir. 2016). Nor has Illinois waived its
immunity. Plaintiff’s lottery ticket does not contain a waiver of
immunity, nor does the Illinois Lottery Law, the statute establishing
the Lottery. See d/e 1; 20 ILCS 1605 et seq. Additionally, the state
does not waive its immunity merely by contracting with a private
party, such as by selling a lottery ticket. See Nunez, 817 F.3d at
1045. Plaintiff’s suit is accordingly barred by the Eleventh
Amendment.

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As to Defendant’s remaining arguments, the Court cannot and
need not address them absent subject matter jurisdiction.
The Court also notes that in Plaintiff’s Response to
Defendant’s Motion to Dismiss, Plaintiff seems to assert an
additional claim—that Defendant perpetrated a fraud by designing a
ticket that gave Plaintiff “no chance to win the grand prize” (d/e 6).
Plaintiff argues that he was entitled to some chance of winning the
grand prize, yet Defendant gave him no chance to win. But
additional claims may not be asserted in a response to a motion to
dismiss. Although a plaintiff “may assert additional facts in a
motion to defeat dismissal, he or she cannot amend his or her
complaint to state new claims in such a motion.” Smith v. Dart,
803 F.3d 304, 311 (7th Cir. 2015) (citing Am. Inter-Fid. Exch. v.
Am. Re-Ins. Co., 17 F.3d 1018, 1021-22 (7th Cir. 1994). Plaintiff
has therefore not properly asserted a fraud claim based on “no
chance to win.”
III. CONCLUSION
For the reasons stated herein, Plaintiff’s Complaint against the
Illinois State Lottery (d/e 1) is DISMISSED WITHOUT PREJUDICE.
Plaintiff is given 30 days from the date of this Order to file an

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amended complaint. The Clerk is directed to mail a copy of this
Order to the address on file for Plaintiff.

ENTER: August 22, 2017

/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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