Block v. Dakota Nation Gaming Commission et al

Filing 9

OPINION AND ORDER granting 5 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by Dakota Nation Gaming Commission, Dakota Sioux Casino and Hotel. Signed by U.S. District Judge Charles B. Kornmann on 5/3/17. (SKK)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

MAY 03 2017

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1:16-CV-01054-CBK

DAWN BLOCK,
Plaintiff,

ORDER AND OPINION

vs.
DAKOTA NATION GAMING COMMISSION
and DAKOTA SIOUX CASINO AND HOTEL,
Defendants.

Plaintiff Dawn Block filed a complaint with this Court on December 1, 2016,
claiming: (1) breach of confidentiality; (2) Privacy Act of 1974; and (3) defamation. The
defendants have moved to dismiss all counts pursuant to Rules 12(b)(l) and 12(b)(6) of
the Federal Rules of Civil Procedure. The Court is fully advised on the matter.

FACTUAL BACKGROUND
On or about May 23, 2014, Block was made aware that her gaming records were
allegedly released by Dakota Sioux Casino and Hotel ("Dakota Sioux") "to members of a
division of the Dakota Sioux Tribal Nation for purposes of defamation." Compl.

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The records account for her winnings and losses at Dakota Sioux over the span of
approximately three years. Block also claims the gaming records reveal her social
security number. Block asserts that Dakota Sioux did not notify or seek her consent in
releasing the gaming records. Block alleges she was damaged as a result of Dakota Sioux
divulging such records because the information was used to apply and obtain credit in her
name. Block believes that Dakota Sioux released the gaming records for the purpose of
damaging her reputation and character.

STANDARD OF REVIEW

The defendants have moved to dismiss the plaintiffs complaint pursuant to Fed.
R. Civ. P. 12(b)(l) and 12(b)(6). "A motion to dismiss pursuant to Rule 12(b)(l)
challenges the Court's subject matter jurisdiction and requires the Court to examine
whether it has authority to decide the claims." Montgomery v. Compass Airlines, LLC,
98 F.Supp.3d 1012, 1017 (D. Minn. 2015) (quoting Damon v. Groteboer, 937 F.Supp.2d
1048, 1063 (D. Minn. 2013)). "In deciding a motion under Rule 12(b)(l) the Court must
first distinguish between a 'facial attack' and a 'factual attack.' " Id. (quoting Menchaca
v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). "In a facial challenge to
jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true
and the motion is successful if the plaintiff fails to allege an element necessary for subject
matter jurisdiction." Id. (quoting Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993)). In
a factual challenge, the Court may look beyond the complaint's jurisdictional allegations
and receive competent evidence such as affidavits, deposition testimony, and the like in
order to determine the factual dispute. Titus, 4 F.3d at 593. The Court has not received
affidavits, evidence, or deposition testimony in this case. Therefore, the Court will
analyze this motion as a facial challenge to subject matter jurisdiction and will look to the
face of the complaint and draw all reasonable inferences in favor of the plaintiff.
"In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in
the complaint to be true and construes all reasonable inferences most favorably to the
complainant." U.S. ex rel. Raynor v. Nat'\ Rural Utilities Co-op. Fin., Corp., 690 F.3d
951, 955 (8th Cir. 2012). "To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its

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face.'" Mountain Home Flight Serv., Inc. v. Baxter Cty., Ark., 758 F.3d 1038, 1042 (8th
Cir. 2014) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. (quoting Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice." U.S. ex rel. Raynor,
690 F.3d at 955. "[A]lthough a complaint need not contain 'detailed factual allegations,'
it must contain facts with enough specificity 'to raise a right to relief above the
speculative level.' " Id. (quoting Twombly, 550 U.S. at 555).
ANALYSIS
I.

Unopposed Motion to Dismiss

The defendants filed a motion to dismiss on February 2, 2017. The plaintiff has
yet to file a brief in opposition. Local Rule 7. l(B) states: "On or before 21 calendar days
after service of a motion or brief, unless otherwise specifically ordered by the court, all
opposing parties must serve and file a responsive brief containing opposing legal
arguments and authorities in support thereof." D.S.D. Civ. LR 7.l(B) (emphasis added).
Accordingly, the deadline to file a brief in opposition to the motion to dismiss was on
February 23, 2017.
The circuits are split on whether a court may grant a motion to dismiss solely on
the basis that the plaintiff did not file a response opposing the motion. Fed. R. Civ. P. 12,
Rules and Commentary (See ITI Holdings, Inc. v. Odom, 468 F.3d 17, 19 (1st Cir.
2006)). However, after a review of the relevant case law, the Eighth Circuit has not
adopted this viewpoint. Therefore, the Court will not grant the motion to dismiss solely

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on the basis that the plaintiff did not file a response in opposition, but rather, will apply
the appropriate standard of review.

II.

Failure to Plead the Basis for Subject Matter Jurisdiction
The next issue is whether the plaintiff has given proper notice to the defendants in

stating the grounds for subject matter jurisdiction. The complaint states: "This Court has
jurisdiction pursuant to the pursuant [sic] to [sic] the [sic] Privacy Act of 1974, 5 U.S.C.

§ 552 a (b) [sic]." Compl. ii 5. Rule 8(a)(l) explains that a complaint must contain "a
short and plain statement of the grounds for the court's jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support." Fed. R. Civ.
P. 8(a)(l). "In a general federal question case, [the] best practice is to cite both 28 U.S.C.

§ 1331 and the particular federal law giving rise to the claim." Fed. R. Civ. P. 8, Rules
and Commentary. "However, neither is essential if the allegations in the complaint, as
[a] whole, show that a federal question is presented." Id. The complaint refers to 5
U.S.C. § 552a(b) of the Privacy Act of 1974, a federal cause of action. Therefore, the
Court has subject matter jurisdiction over this matter.

III.

Breach of Confidentiality
Next, the issue is whether the plaintiffs breach of confidentiality claim fulfills the

requirements of Fed. R. Civ. P. 8(a)(2). "Federal Rule of Civil Procedure 8(a)(2) requires
only 'a short and plain statement of the claims showing that the pleader is entitled to
relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds
upon which it rests.' " Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs

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obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Id. The complaint states: "Dakota Sioux has an obligation under Federal Law and
Gaming Laws to maintain records in confidence and release information only to the
Internal Revenue Service for the purposes of taxing winnings." Compl.

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13. The

plaintiff fails to cite to the legal authority that she is relying upon in claiming a breach of
confidentiality. It is ambiguous as to which particular federal or gaming law the
defendants allegedly violated. Moreover, Count 1 and Count 2 of the plaintiffs
complaint may be duplicative, as both counts refer to the improper handling of the
plaintiffs gaming records. In any case, the purpose of Rule 8(a)(2) is to provide notice.
It is unreasonable to expect the defendants and the Court to correctly guess which

particular federal or gaming law the plaintiff is relying upon. The plaintiff has failed to
give proper notice to the defendants in this regard. Therefore, the Court finds the
defendants are entitled to an order to dismiss Count 1 of the complaint.

IV.

The Privacy Act of 197 4

The next issue is whether Count 2 of the complaint fails to state a claim to relief
that is plausible on its face. The complaint cites to 5 U.S.C. § 552a(b) of the Privacy Act
of 1974, which states:
[N]o agency shall disclose any record which is contained in
a system of records by any means of communication to any
person or to another agency, except pursuant to a written
request by, or with the prior written consent of the
individual to whom the record pertains.
Compl. ~ 19. "Agency" is defined as "each authority of the Government of the United
States, whether or not it is within or subject to review by another agency ... " 5 U.S.C. §

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551 (1 ). The complaint fails to plead or support an inference that either defendant is an
agency of the United States. By the plaintiffs own admission, "Defendant Dakota
Nation Gaming Enterprises (DAKOTA NATION [sic] is owners [sic] of Dakota Sioux
Casino and Hotel ... " Compl. ~ 3. The plaintiff inexplicably refers to Dakota Nation
Gaming Enterprises as the Dakota Nation Gaming Commission. Dakota Nation Gaming
Enterprises is a business entity. Compl.

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3. Because the Privacy Act of 1974 regulates

agencies of the United States, the plaintiff must show in her complaint that her claim
involves an agency of the United States. The complaint does not indicate that any agency
of the United States misused or divulged the plaintiffs records. Therefore, after
accepting the factual allegation pled as true, the plaintiff has failed to state a cause for
relief that is plausible on its face.

V.

Defamation
Finally, the issue is whether the plaintiffs defamation claim is properly before the

Court when considering the dismissal of Counts 1 and 2. "It is well established that a
court has a special obligation to consider whether it has subject matter jurisdiction in
every case." Hart v. United States, 630 F.3d 1085, 1089 (8th Cir. 2011). "This
obligation includes the concomitant responsibility 'to consider sua sponte the court's
subject matter jurisdiction where the court believes that jurisdiction may be lacking.' "
Id. (quoting Clark v. Baka, 593 F.3d 712, 714 (8th Cir. 2010)). Defamation is a state law
cause of action. A federal district court may adjudicate a state law cause of action if the
facts derive from a common nucleus of operative fact. See 28 U.S.C. § 1367(a).
Although the plaintiff failed to assert supplemental jurisdiction pursuant to 28 U.S.C. §
1367(a), the Court will nonetheless address the issue. The Court may decline to exercise

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its supplemental jurisdiction if: "(3) the Court dismissed all claims over which it had
original jurisdiction." Barondes v. Wolfe, 184 F.Supp.3d 741, 744 (W.D. Mo. 2016)
(quoting 28 U.S.C. § 1367(c)). "If one of these statutory factors is present, the Court
must weigh the interests of judicial economy, convenience, fairness, and comity to
determine whether to exercise jurisdiction." Id. "In the usual case, these factors will
point toward declining to exercise jurisdiction over the remaining state-law claims." Id.
Based on the factors referenced above, the Court declines to exercise supplemental
jurisdiction over the plaintiffs defamation claim. Therefore, the defendants are entitled
to an order to dismiss in this matter. The dismissal should be without prejudice. No
costs should be taxed.
ORDER

Now, therefore,
IT IS ORDERED:
1. Defendants' motion, Doc. 5, to dismiss is granted without prejudice.
DATED

thi~~ofMay, 2017.
BY THE COURT:

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CHARLES B. KORNMANN

United States District Judge

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