United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. Hornsby, U.S. Magistrate Judge.
A. Rasco (“Plaintiff”) filed suit in state court
against Margaritaville Resort Casino and three of its
employees. He complained that he was mistreated while playing
poker at the casino and was evicted from the premises without
cause. Defendants removed the case based on an assertion of
federal question jurisdiction and promptly filed a motion to
dismiss for failure to state a claim on which relief may be
granted. Plaintiff responded by seeking to amend his
complaint to strip any federal law claims, in what appears to
be an effort to obtain remand. For the reasons that follow,
it is recommended that the court remand this case for lack of
subject matter jurisdiction. In the alternative, the court
should allow Plaintiff to dismiss the purported federal
claims and then decline to exercise supplemental jurisdiction
over the state law claims.
state court petition alleged that he is an African American
male who has reached the status of a high-level player at the
Margaritaville Casino. He was playing Mississippi Stud when
the dealer repeatedly turned over Plaintiff's cards,
after being requested not to, but did not turn over the cards
of any other players, particularly the white players.
Petition, ¶¶ 2-4. The dealer was removed from the
table and replaced. ¶ 6.
left the casino to attend a function for his granddaughter,
but he returned that afternoon for more Mississippi Stud. The
dealer again began “practicing a discriminatory
practice” against Plaintiff “by flipping over his
cards when requested not to while not flipping over anyone
else's cards.” ¶¶ 7-9. Plaintiff added
that he believes there may have been an improper relationship
between the pit boss and the dealer. ¶ 10.
began to lose a substantial amount of money, and he was then
approached and informed that the casino no longer needed his
business. ¶ 11. Plaintiff “feels that he has been
discriminated against solely due to his skin color and shows
that such activity is prohibited and should render the
defendant liable for its actions.” ¶ 12. Plaintiff
claims that he was “wrongfully evicted” and
caused to suffer “great embarrassment and shame”
that has caused nightmares. ¶ 13. He also complains that
he has been stripped of his “Islander” status and
the comps and benefits that flowed from that status. The loss
of status also caused him humiliation and public
embarrassment. ¶¶ 14-16. Plaintiff asserts that he
has been “deprived from (sic) due process of law and
had a taking without compensation” when he was removed
from the casino and had his player status taken. ¶ 17.
removed the case based solely on an assertion of federal
question jurisdiction pursuant to 28 U.S.C. § 1331.
Their notice of removal contends that Plaintiff's claims
arise under Title II of the Civil Rights Act of 1964, which
prohibits a place of public accommodation from discriminating
against a person on the grounds of race. Defendants contend
that the court may exercise supplemental jurisdiction over
any state law claims asserted in the petition. The notice
does not invoke diversity jurisdiction or any other basis for
promptly filed a motion to dismiss pursuant to Rule 12(b)(6)
and argued that any claim under the Civil Rights Act must be
dismissed because (1) Plaintiff seeks monetary damages that
are not available under the Act, (2) Plaintiff did not
provide pre-suit notice to a Louisiana anti-discrimination
agency, and (3) the claims do not contain sufficient factual
allegations under Twombly. Defendants acknowledged
that Louisiana law also prohibits places of public
accommodation from discriminating based on race. La. Con.
Art. 1, § 12, La. R.S. 49:146 and 51:2247. They argue
that any such state law claims should be dismissed for lack
of adequately specific allegations and because the Louisiana
Gaming Control Board has all authority to regulate gaming
activities and operations, which would deprive Louisiana
courts of subject matter jurisdiction over the claims.
has not filed any formal opposition to the motion to dismiss.
He first responded by filing a Motion to Dismiss (Doc. 16)
that asked the court to grant a voluntary dismissal without
prejudice under Fed. R. Civ. Pro. 41. The motion and
accompanying memorandum are each two sentences long. Neither
gives much explanation for what Plaintiff is attempting to
achieve, but Plaintiff does state that he does not intend to
refile his petition in this court.
inconsistent with the request for dismissal, Plaintiff filed
a few days later a Motion to Amend Complaint (Docs. 17 and
18) in which he states that he wishes to “remove the
grounds for dismissal and to properly frame his complaint in
response to the defendants' 12(b)(6) motion to
dismiss.” The proposed amended complaint would remove
all references to race or other forms of discrimination that
might support a federal claim, and the memorandum in support
states that Plaintiff wants to amend to set forth a claim for
torts and “not civil rights damages.” Plaintiff
notes that defendants removed the case based on an assertion
of federal question jurisdiction but then claimed that there
was not a properly alleged federal claim, which Plaintiff
says means the case should not have been removed in the first
place. It appears that Plaintiff is trying to achieve a
return to state court, whether by remand or dismissal and the
filing of a new suit.
initial question is whether the original petition asserted a
federal claim that would justify removal and provide this
court subject matter jurisdiction. A lack of subject matter
jurisdiction may be raised at any time, and the court must
examine the issue sua sponte if it appears
questionable. Giles v. NYLCare Health Plans, Inc.,
172 F.3d 332, 336 (5th Cir. 1999); Deaville v. Capital
One Bank, 425 F.Supp.2d 744, 756 (W.D. La. 2006). In a
removed case, “[i]f at any time before final ...