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Rasco v. Bossier Casino Venture Inc.

United States District Court, W.D. Louisiana, Shreveport Division

February 14, 2018

CHARLES A RASCO
v.
BOSSIER CASINO VENTURE INC, ET AL

          FOOTE, JUDGE.

          REPORT AND RECOMMENDATION

          Mark L. Hornsby, U.S. Magistrate Judge.

         Introduction

         Charles 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.

         Procedural History

         Plaintiff's 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.

         Plaintiff 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.

         Plaintiff 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.

         Defendants 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 removal.

         Defendants 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.

         Plaintiff 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.

         Somewhat 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.

         Subject Matter Jurisdiction

         The 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 ...


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