United States District Court, W.D. Michigan, Southern Division
Paul L. Maloney, Judge
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
brought this action against the Michigan Attorney General,
pursuant to 42 U.S.C. § 1983, claiming that
Michigan's statutory prohibition on private gambling
violates his rights under the First, Tenth and Fourteenth
Amendments. He seeks declaratory judgment that the
potential enforcement of those laws is unconstitutional.
Plaintiff also seeks injunctive relief, as well as nominal
matter is before the Court on defendant's motion to
dismiss. (ECF No. 14, 15). Plaintiff filed a response (ECF
No. 17) and defendant replied (ECF No. 21). For the reasons
stated herein, I recommend that the motion to dismiss be
complaint consists largely of bare legal conclusions.
Nevertheless, the following allegations can be gleaned from
is a citizen of the state of Michigan who currently resides
in South Bend, Indiana. He primarily challenges three of
Michigan's statutory provisions. (See Compl. ¶¶
44-46, ECF No. 1, PageID.7). The first prohibits private
games of chance, making such conduct a misdemeanor punishable
by up to one year incarceration and a maximum fine of $1,
000. Mich. Comp. Laws § 750.301. The second prohibits
the advertisement and public dissemination of information
relating to betting, also a misdemeanor punishable by up to
one year incarceration and a maximum fine of $1, 000. Mich.
Comp. Laws § 750.305. The third prohibits the promotion
of a lottery and the dispossession of property by means of a
lottery, making such conduct a two-year misdemeanor. Mich.
Comp. Laws § 750.372.
claims an interest in developing and offering “
‘equitable' games of chance, ” which would
compete with Michigan's lottery. (Compl. ¶¶ 1,
22, ECF No. 1, PageID.1, 4). He defines equitable gambling as
“risking money or other property for gain, contingent
in whole or in part upon probabilities from which the
operator derives no fees or income.” (Id. at
¶ 24, PageID.4). Plaintiff contends that his gambling
system would save Michigan resident's approximately two
billion dollars annually as compared to Michigan's
“loss-based” system, which directs a portion of
funds collected to the game's operators. (Id. at
¶¶ 2, 5, PageID.1-2).
claims that Michigan's lottery scheme violates the
state's sovereignty; that the state's prohibition on
equitable games of chance violates his due process and equal
protection rights; and that the state's gambling statutes
violate his First Amendment rights to speech and association.
Defendant moves to dismiss plaintiff's claims under
Federal Rule of Civil Procedure 12(b)(1) on the grounds that
plaintiff lacks standing due to his failure to allege an
injury-in-fact. In the alternative, defendant seeks dismissal
under Rule 12(b)(6) on the basis that plaintiff's
allegations fail to state a claim on which relief can be
in its constitutional dimension is a threshold issue
necessary to establish a case or controversy under Article
III. Warth v. Seldin, 422 U.S. 490, 498 (1975). As
the party invoking federal jurisdiction, plaintiff must
demonstrate that he has standing to prosecute his claims.
See, e.g., Loren v. Blue Cross & Blue Shield of
Michigan, 505 F.3d 598, 607 (6th Cir. 2007). To
establish standing, plaintiff must demonstrate that he has
suffered a concrete, particularized, and legally cognizable
injury-in-fact. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992).
12(b)(6) motion to dismiss tests the legal sufficiency of a
complaint by evaluating the assertions therein in a light
most favorable to plaintiff to determine whether the
complaint states a valid claim for relief. See, e.g., In
re NM Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir.
2000). Pursuant to Rule 12(b)(6), a claim must be dismissed
for failure to state a claim on which relief may be granted
unless the “[f]actual allegations [are] enough to raise
a right for relief above the speculative level on the
assumption that all of the complaint's allegations are
true.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007). As the Supreme Court more recently
held, 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
face.' ” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009). This plausibility standard “is not akin
to a ‘probability requirement,' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” If the complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.' ” Id. As the Court further
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice . . . Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions. Second,
only a complaint that states a plausible claim for relief
survives a motion to dismiss . . . Determining whether a
complaint states a plausible claim for relief will, as the
Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. But where the well pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it
has not “show[n]” - “that the pleader is
entitled to relief.”
Id. at 678-79 (internal citations omitted).
resolving a Rule 12(b)(6) motion to dismiss, the Court may
consider the complaint and any exhibits attached thereto,
public records, items appearing in the record of the case,
and exhibits attached to the defendant's motion to
dismiss provided such are referenced in the complaint and
central to the claims therein. See Bassett v. National
Collegiate Athletic Assoc.,528 F.3d 426, 430 (6th Cir.
2008); see also Stringfield v. Graham, 212 Fed.Appx.
530, 535 (6th Cir. 2007) (documents ...