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Burrell v. MGM Grand Casino Detroit

United States District Court, E.D. Michigan, Southern Division

January 3, 2017

MARCIA BURRELL et al., Plaintiffs,



         Plaintiffs, former cashiers at a sundry shop in the MGM Grand Casino Detroit, who were discharged and prosecuted for embezzlement but were not convicted, brought this federal civil rights suit under 42 U.S.C. § 1983 and § 1985 as well as related state law claims against the moving defendant, MGM Grand Casino Detroit (“MGM”), and five other defendants, all of whom have been dismissed by prior order of the court. Now before the court is MGM's motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons discussed below, the motion to dismiss for lack of subject matter jurisdiction was improvidently filed, and the court must limit its analysis here to the question of whether or not the Complaint should be dismissed for failure to state a claim under Rule 12(b)(6). For the reasons set forth below, plaintiffs have failed to state a federal claim against MGM; thus, the court shall dismiss those claims and shall decline to exercise supplemental jurisdiction over the state law claims.

         I. Factual Background

         Because the court is addressing a Rule 12(b)(6) motion, the facts stated here are those alleged in the Complaint. Plaintiffs Marcia Burrell, Carmen Edwards, Janay Stephens, and Maria Perez were employed as cashiers in MGM's sundry shop, from September, 2007 until they were terminated on or about February 20, 2013 for alleged embezzlement. (Complaint, ¶¶ 14-15, 29). At the time that they were terminated, plaintiffs were earning close to $20 an hour. Id. at ¶15. According to the Complaint, when plaintiffs met with the union president after their discharge, their union president informed them that MGM was looking for an excuse to fire them, so that they could be replaced with workers at a lower payrate. Id. at ¶ 31. In fact, plaintiffs allege that they were replaced with workers earning only $13.50 an hour. Id. at ¶ 30. Although the Complaint alleges that plaintiffs are all “considered of a racial minority classification, ” the Complaint does not articulate their particular races, and it is unclear if all the plaintiffs are of the same race. Id. at ¶ 17. The Complaint also states that Perez is over 55 years of age; id.; however, there is no age discrimination claim, so the inclusion of that allegation is somewhat puzzling.

         Plaintiffs were told to report for “training” in late February, 2013. Although it is difficult to discern from the Complaint the exact date of the “training, ” it appears that it took place on February 21, 2013. Id. at ¶ 29. When plaintiffs reported to MGM for the “training, ” they met with defendants Marston and Hilanka. Id. at ¶ 28. It is unclear from the Complaint who Marston is, but it appears likely that she is an MGM employee. The Complaint alleges that Hilanka is a Michigan Gaming Control Board (“MGCB”) officer; id. at ¶ 28, however, the MGCB, in its motion to dismiss on the basis of sovereign immunity, denied that Hilanka is or ever was its employee. (Doc. 24, PgID 152). When plaintiffs reported for the “training, ” they were separated, detained, and informed that they were being investigated for wrongdoing. Id. at ¶ 26. They were required to have their photographs and fingerprints taken, and were asked to give statements without their labor representative present. Id. at ¶ 27.

         On February 23, 2013, MGM faxed paperwork to their union stating that they were being terminated as of February 20, 2013 for embezzlement. Id. at ¶ 29. On May 2, 2014, plaintiffs were charged with three counts of embezzlement and/or theft. Id. at ¶ 38. During their trial, plaintiffs allege that Marston, Hilanka, and another unnamed surveillance officer lied. Id. at ¶ 39. Plaintiffs were not convicted. Id. at ¶ 42.

         On February 16, 2016, plaintiffs filed this suit pleading nine counts as follows: (1) § 1983 claim against “defendants agencies and officers” for alleged Fourth and Fourteenth Amendment violations arising from alleged false arrest, false imprisonment, malicious prosecution, and unreasonable search and seizure; (2) § 1983 claim against “defendants agencies and officers” for alleged violations of their Fifth, Sixth, and Fourteenth Amendment rights to a fair trial; (3) § 1985 claim against “defendants agencies and officers;” (4) § 1983 Monell claim against MGCB; (5) false arrest, (6) breach of employment contract against MGM; (7) malicious prosecution; (8) abuse of process; and (9) concert of action. The Complaint misnumbers both the false arrest claim and the breach of contract claim as Count V. Plaintiffs sued the following entities and individuals: (1) MGM, (2) MGM Resorts International (“MGM Resorts”), (3) Daniel Hilanka, (4) Eve Marston, (5) unnamed MGM surveillance officer, and (6) MGCB. All but MGM have been dismissed by prior order of the court: MGM Resorts for lack of service of process and lack of personal jurisdiction, Hilanka and Marston for failure to prosecute, and MGCB for sovereign immunity.

         Now before the court is MGM's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that plaintiffs' claims are time-barred based on the shortened six-month limitations period allegedly agreed to in plaintiffs' employment contracts, and to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. In their motion to dismiss, MGM addresses the following claims, which it believed to be the only claims pled against it: (1) false arrest, (2) breach of contract, (3) malicious prosecution, (4) abuse of process, and (5) concert of action.

         In their response brief, however, plaintiffs asserted that they were pursuing their §§ 1983 and 1985 claims against MGM as well. That is certainly not clear from the Complaint which in its caption to those counts specifically asserts that those claims pertain to “defendants agencies and officers, ” while the breach of employment contract claim specifically names MGM as a defendant. Nevertheless, MGM addressed those claims in its Reply brief, arguing that plaintiffs should not be allowed to amend the Complaint to add those claims as it would be futile as MGM is not a state actor as required under § 1983, and plaintiffs failed to allege class-based invidious discrimination as required under § 1985. The court allowed plaintiffs to respond to those arguments in a sur-reply brief but plaintiffs have failed to do so, and the time period for doing so has expired.

         II. Analysis

         A. Statute of Limitations Waivers

         The court first considers whether it has subject matter jurisdiction over the instant case. Defendant has moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction on the grounds that plaintiffs' claims are time-barred based on the employment waivers they signed limiting the time period during which they could sue to six months, rather than the longer limitations period which would ordinarily apply to plaintiffs' state and federal claims. Rule 12(b)(1) does not apply, here, however, as the statute of limitations under §§ 1983 and 1985 and plaintiffs' state law claims do not act as a jurisdictional bar, but are an affirmative defense that may be waived. Fed.R.Civ.P. 8(c). The statute of limitations defense is generally a matter for summary judgment, but where the “allegations in the complaint affirmatively show that the claim is time-barred, ” dismissal under Rule 12(b)(6) may be appropriate. Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012).

         Here, defendants do not rely on the allegations of the Complaint to show that the Complaint is time-barred, but have attached statute of limitations waivers that plaintiffs signed as a condition of their employment.

         The waivers were not attached to the Complaint nor referenced therein; therefore, it would be inappropriate for the court to consider the waivers as part of a Rule 12(b)(6) motion to dismiss. Accordingly, defendant's motion to dismiss on the basis of the statute of limitations defense must be denied as premature, as it requires a factual analysis to ...

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