Colombo Candy & Tobacco Wholesale Co. v Ameristar Casino Council Bluffs, Inc.

Filing 36

ORDER that Ameristar's Motion for Leave to Withdraw its Motion to Dismiss for Lack of Personal Jurisdiction 34 is granted; Ameristar's challenge to personal jurisdiction is deemed withdrawn from Ameristar's Motion to Dismiss 13 ; Colombo's Unopposed Motion for Extension of Time to File Brief in Opposition to Defendant's Motion to Dismiss 35 is granted. Colombo shall have until August 2, 2013, to file a response. Ameristar shall have until August 12, 2013, to file a reply. Colombo's Motion for Leave to Conduct Jurisdictional Discovery, Stay Consideration of Motion to Dismiss, and Stay Order to Meet and Confer or in the alternative, for an Extension of Time to Respond to Defendant's Motion to Dismiss 20 is denied as moot. Ordered by Magistrate Judge Thomas D. Thalken. (ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

COLOMBO CANDY & TOBACCO
WHOLESALE CO.,
8:13CV148
Plaintiff,
vs.

ORDER

AMERISTAR CASINO COUNCIL
BLUFFS, INC.,
Defendant,
UNION INSURANCE,
Intervenor.
This matter is before the court on several motions related to the defendant’s
Motion to Dismiss (Filing No. 13) filed on June 17, 2013. The plaintiff filed a Motion for
Leave to Conduct Jurisdictional Discovery, Stay Consideration of Motion to Dismiss,
and Stay Order to Meet and Confer or in the alternative, for an Extension of Time to
Respond to Defendant’s Motion to Dismiss (Filing No. 20).

Subsequently, the

defendant filed Motion for Leave to Withdraw its Motion to Dismiss for Lack of Personal
Jurisdiction (Filing No. 34). The plaintiff filed a brief in response and Unopposed Motion
for Extension of Time to File Brief in Opposition to Defendant’s Motion to Dismiss (Filing
No. 35).

BACKGROUND
On April 17, 2013, the plaintiff, Colombo Candy & Tobacco Wholesale Co.
(Colombo), filed a second amended complaint against the defendant, Ameristar Casino
Council Bluffs, Inc. (Ameristar), in the District Court of Douglas County, Nebraska. See
Filing No. 1 - Complaint p. 63-86.1 Colombo generally alleges a Colombo employee
gambled at Ameristar with over $4,000,000 embezzled from Colombo. Id. Colombo
alleges four causes of action including: (1) aiding and abetting tortious conduct, (2)
aiding and abetting breach of fiduciary duty, (3) avoidance and recovery of fraudulent
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The court uses the automatically generated CM/ECF page identification numbers for reference.

transfers pursuant to the Uniform Fraudulent Transfer Act, and (4) unjust enrichment.
Id.
On May 9, 2013, Ameristar removed the action to this court. Id. - Notice of
Removal p. 1-6. Subsequently, on June 17, 2013, Ameristar filed a motion to dismiss
Colombo’s Second Amended Complaint on three grounds:

1) lack of personal

jurisdiction, 2) venue is improper, and 3) Colombo failed to state a plausible claim upon
which relief can be granted. See Filing No. 13. On June 28, 2013, Colombo filed the
Motion for Leave to Conduct Jurisdictional Discovery. See Filing No. 20. Colombo
seeks to stay consideration of Ameristar’s Motion to Dismiss for a 120-day period to
conduct jurisdictional discovery and a 21-day extension thereafter to file a brief in
opposition of the Motion to Dismiss. Id. Colombo also sought an extension of the
deadline to file the parties’ Fed. R. Civ. P. 26(f) planning report and to respond to
Ameristar’s Motion to Dismiss, which the court granted on July 3, 2013. Id.; Filing No.
25 - Order. The court held the remainder of Colombo’s Motion for Leave to Conduct
Jurisdictional Discovery in abeyance pending completion of briefing. See Filing No. 25 Order.
On July 17, 2013, Ameristar filed the Motion for Leave to Withdraw its Motion to
Dismiss for Lack of Personal Jurisdiction. See Filing No. 34. Ameristar seeks leave to
withdraw the limited portion of its Motion to Dismiss related to the argument under Fed.
R. Civ. P. 12(b)(2) that this court lacks personal jurisdiction over Ameristar.

Id.

Ameristar contends withdrawal of its challenge to personal jurisdiction renders
Colombo’s Motion for Leave to Conduct Jurisdictional Discovery moot. Id. Ameristar
states it consents to this court’s personal jurisdiction over Ameristar.

Id. at 1-2.

Ameristar maintains its challenge that Colombo’s Second Amended Complaint fails to
state a plausible claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
Id. Ameristar does not state whether it maintains its contention that venue is improper.
In response, on July 18, 2013, Colombo states it did not oppose Ameristar’s
Motion for Leave to Withdraw its Motion to Dismiss for Lack of Personal Jurisdiction.
See Filing No. 35. Additionally, Colombo seeks an extension of time to respond to
Ameristar’s Motion to Dismiss. Id.

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ANALYSIS
The court will allow Ameristar to withdraw its challenge to personal jurisdiction.
The withdrawal of Ameristar’s challenge to personal jurisdiction and consent to personal
jurisdiction renders Colombo’s Motion for Leave to Conduct Jurisdictional Discovery
moot. Although Ameristar did not state whether it maintains venue is improper, the
court presumes Ameristar maintains this challenge. Therefore, the court will consider
Ameristar’s Motion to Dismiss under the grounds that venue is improper and Colombo’s
Second Amended Complaint fails to state a plausible claim upon which relief can be
granted. The court will also allow Colombo additional time to respond to Ameristar’s
Motion to Dismiss. Accordingly,

IT IS ORDERED:
1.

Ameristar’s Motion for Leave to Withdraw its Motion to Dismiss for Lack of

Personal Jurisdiction (Filing No. 34) is granted.

Ameristar’s challenge to personal

jurisdiction is deemed withdrawn from Ameristar’s Motion to Dismiss (Filing No. 13).
2.

Colombo’s Unopposed Motion for Extension of Time to File Brief in

Opposition to Defendant’s Motion to Dismiss (Filing No. 35) is granted. Colombo shall
have until August 2, 2013, to file a response. Ameristar shall have until August 12,
2013, to file a reply.
3.

Colombo’s Motion for Leave to Conduct Jurisdictional Discovery, Stay

Consideration of Motion to Dismiss, and Stay Order to Meet and Confer or in the
alternative, for an Extension of Time to Respond to Defendant’s Motion to Dismiss
(Filing No. 20) is denied as moot.

Dated this 19th day of July, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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