Jones v. The Majestic Star Casino II, LLC

Filing 23

MEMORANDUM OPINION on 22 Order on Motion to Dismiss. Signed by District Judge Michael P. Mills on 11/30/2018. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHEN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
MICHAEL JONES

PLAINTIFF

v.

NO: 3:18CV32-M

THE MAJESTIC STAR CASINO II, LLC

DEFENDANT

MEMORANDUM OPINION
This cause comes before the Court on Defendant’s Motion to Dismiss the Complaint
Pursuant to Fed. R. Civ. P. 12(b)(1), (2) and (3). The Court, having reviewed the motion, the
parties’ submissions, the complaint, and applicable authority, is now prepared to rule.
Factual and Procedural Background
On February 11, 2015, Plaintiff, Michael Jones, rented a hotel room at the Majestic Star
Casino located in Gary, Indiana (1 Buffington Harbor Dr., Gary, IN 46406). Upon stepping into
the bathtub to shower, Plaintiff slipped on a bathmat causing him to fall and suffer injuries to his
head from having struck the toilet and bathroom floor.
On March 31, 2017, Plaintiff initiated an action against Defendant, Majestic Star Casino
II, LLC, in the Circuit Court of Cook County, Illinois. Defendant moved to dismiss the case on
two grounds: (1) that the date stated on Plaintiff’s complaint (April 2, 2017) as the date of incident
was incorrect and a date after the filing of the complaint; and (2) that the two-year statute of
limitations had expired forty-eight days prior to Plaintiff’s filing of his complaint.
Plaintiff then filed a “Motion to Voluntary Non-suit”. The Circuit Court of Cook County,
Illinois granted Plaintiff’s motion and granted him leave to re-file “within one year upon payment
of Defendant’s costs.”

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As of February 8, 2018, this action finds itself in the Northern District of Mississippi.
Defendant now moves to dismiss for lack of subject-matter jurisdiction, lack of personal
jurisdiction, and improper venue. Because the Court finds that dismissal is proper pursuant to Rule
12(b)(1) it will not discuss a Rule 12(b)(2) or (3) dismissal.
Standard of Review
“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court
should consider the Rule 12(b)(1) jurisdictional attack” prior to any other attack. Ramming v. U.S.,
281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.
1977)). A Rule 12(b)(1) motion “allows a party to challenge the subject matter jurisdiction of the
district court to hear a case.” Id. If the court determines that it “lacks the statutory or constitutional
power to adjudicate the case” then the court may properly dismiss the claim. Home Builders Assn’n
v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). The court may base its
consideration on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or
(3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
Id (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
In dealing with a Rule 12(b)(1) motion, the court must first determine whether the motion
is a facial or factual attack. A “facial attack” is one premised solely on the complaint and requires
the court “merely to look to the sufficiency of the allegations in the complaint because they are
presumed to be true.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In contrast, a
“factual attack” challenges the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Whether the attack is facial

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or factual, the party asserting jurisdiction “constantly bears the burden of proof that jurisdiction
does in fact exist.” Ramming, 281 F.3d at 161.
Discussion
In his complaint, Plaintiff alleges subject matter jurisdiction based on diversity of
citizenship. Diversity jurisdiction exists when the amount in controversy exceeds $75,000 and the
controversy is between citizens of different states. 28 U.S.C. § 1332(a). “‘When jurisdiction
depends on citizenship, citizenship should be distinctly and affirmatively alleged’”. Stafford v.
Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991) (quoting McGovern v. Am. Airlines, Inc., 511
f.2d 653, 654 (5th Cir. 1975)). The citizenship of a limited liability company (LLC) “is determined
by the citizenship of all of its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080
(5th Cir. 2008).
In the present case, the Court finds that Defendant’s motion is a facial attack as Defendant
relies solely on Plaintiff’s complaint to support its Rule 12(b)(1) motion. Having reviewed the
complaint, the Court opines that Plaintiff failed to distinctly and affirmatively allege the citizenship
of any of Majestic Star’s members. In his complaint, Plaintiff merely states that Majestic Star
operates casinos in Illinois and Mississippi; maintains an agent for service of process in Jackson,
Mississippi; conducts business in the Northern District of Mississippi; and does business in Tunica
County, Mississippi as Fitz Tunica Casino and Hotel. At most, Plaintiff alleged that Majestic Star
conducted business in Mississippi, but at no point in his complaint did Plaintiff ever identify or
mention the citizenship of any members that compose the LLC that is Majestic Star. Plaintiff failed
to distinctly and affirmatively allege the citizenship of the members of the LLC; his complaint fails
to show that this Court has diversity jurisdiction over this cause of action.

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This Court notes that “‘failure to allege facts establishing jurisdiction need not prove fatal
to a complaint.’” Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5th Cir. 2000) (quoting Canedy v.
Liberty Mutual Ins. Co., 126 F.3d 100, 103 (2d. Cir. 1997)). Pursuant to 28 U.S.C. § 1653,
“[d]efective allegations of jurisdiction may be amended, upon terms, in trial or appellate courts.”
28 U.S.C. § 1653. This statute “is to be broadly construed to avoid dismissals of actions on purely
‘technical’ or ‘formal’ grounds.” Whitmire, 212 F.3d at 887 (citing Miller v. Stanmore, 636 F.2d
986, 990 (5th Cir. 1981)). However, where the record does not indicate that diversity in all
probability exists, the Court may deny an opportunity to amend. See McGovern v. Am. Airlines,
Inc., 511 F.2d 653, 654 (5th Cir. 1975).
Here, the record fails to indicate that the Court can exercise diversity jurisdiction over this
case. In his response to Defendant’s motion to dismiss, Plaintiff attaches five exhibits, the majority
of which are documents obtained through the Indiana and Mississippi Secretary of State websites.
Relying on these documents, Plaintiff builds his diversity argument by merely focusing on the fact
that Majestic Star is an LLC that conducts business in Mississippi, maintains a registered agent in
Jackson, MS, and is somehow connected to another LLC incorporated in Mississippi. Plaintiff, in
this Court’s opinion, was required to focus on the citizenship of any and all members of the named
defendant, The Majestic Star Casino II, LLC. From Plaintiff’s exhibits, Defendant’s briefs, and
the undisputed affidavit of Jon Bennet (CFO of The Majestic Star Casino II, LLC) provided by
Defendant, this Court understands The Majestic Star Casino, LLC and The Majestic Star Casino
II, LLC to be separate entities. As separate entities, and per the affidavit provided by Defendant,
“Majestic Star II’s sole member is Majestic Star Casino, LLC, which is an Indiana limited liability
company.” Thus, having reviewed the record, there is no indication that diversity in all probability
exists. Therefore, Plaintiff will not be allowed an opportunity to amend his complaint.

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Conclusion
Therefore, this Court GRANTS Defendant’s Motion to Dismiss [18] pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure. A separate order shall issue this day.
SO ORDERED, this the 30th day of November, 2018.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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