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Gillette v. Gaming Entertainment (Indiana)

United States District Court, S.D. Indiana, Indianapolis Division

September 14, 2016

GAMING ENTERTAINMENT (INDIANA) doing business as RISING STAR CASINO, et al., Defendants.


          SARAH EVANS BARKER JUDGE United States District Court

         This cause is before the Court on Defendants' Motions to Dismiss [Docket Nos. 52, 58], filed on May 9, 2015 and June 20, 2015, respectively. For the reasons detailed below, Defendants' motions are GRANTED and this cause is DISMISSED WITH PREJUDICE.


         Plaintiff Katheryn Gillette filed her original pro se Complaint in this action on July 25, 2015 against Defendants Gaming Entertainment d/b/a Rising Star Casino, Indiana Gaming, LLC, Belterra Resort Indiana, LLC d/b/a Belterra Casino Resort, Centaur, LLC d/b/a Hoosier Park Racing and Casino, Centaur Acquisition, LLC d/b/a Indiana Grand Casino, Rock Ohio Caesars Cincinnati, LLC d/b/a Horseshoe Casino Cincinnati, and RDI Caesars Riverboat Casino d/b/a Horseshoe Southern Indiana (collectively “the Casinos”). Dkt. 1. Gillette alleged that, after being prescribed a drug known as “Mirapex” for her Restless Leg Syndrome, she developed a crippling and compulsive gambling addiction, which lasted for several years, during which she borrowed from the Casinos to finance her addiction. When Gillette requested and received the loans from the Casinos, they required her to sign agreements allowing them to automatically draft funds from her bank account if she failed to repay the loans on time. Eventually Gillette defaulted on every loan she had obtained from the Casinos and collection attempts began.[1] Id. Plaintiff claimed in her July 2015 Complaint that, through their predatory lending and collection practices, the Casinos had violated Title XIV of the Dodd-Frank Act, Sections 1692f(1)-(2) and 1692p(b)(5) of the Federal Debt Collection Practices Act (“FDCPA”), Section 1693e of the Electronic Funds Transfer Act (“EFTA”), Section 1962(b) of the Racketeer Influenced Corrupt Organizations Act (“RICO”), and Section 2-302 of the Uniform Commercial Code (“UCC”). Id.

         On August 31, 2015, the Casinos filed a joint motion to dismiss [Docket No. 32], pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. 32. On October 27, 2015, we granted the Casinos' motion, dismissing Plaintiff's claims under the FDCPA and the UCC with prejudice and dismissing her claims under Title XIV of the Dodd-Frank Act, the EFTA, and RICO without prejudice. See Dkt. 40. We instructed Plaintiff that if she wished to proceed on her claims under the Dodd-Frank Act, the EFTA, or RICO, she must file an Amended Complaint that overcame the deficiencies described in our Order.[2]

         On April 25, 2016, Plaintiff filed her pro se Amended Complaint, in which she restated her claims under the EFTA and RICO, and added two claims for violations of Indiana's riverboat and racetrack gambling regulations. Dkt. 49. She also added as a Defendant Patrick Kilburn of the law firm Lloyd & McDaniel, PLC. Id. On May 9, 2016, the Casinos filed a joint motion to dismiss Plaintiff's Amended Complaint [Docket No. 52] and on June 20, 2016, Defendant Patrick Kilburn filed a separate motion to dismiss [Docket No. 58]. As explained below, both motions to dismiss are GRANTED.

         Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of claims for “failure to state a claim upon which relief may be granted.” In determining the sufficiency of a claim, the court considers all allegations in the complaint to be true and draws such reasonable inferences as required in the plaintiff's favor. Jacobs v. City of Chi., 215 F.3d 758, 765 (7th Cir. 2000).

         Rule 8 of the Federal Rules of Civil Procedure applies, with several enumerated exceptions, to all civil claims. Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(e)(1) states that “[e]ach averment of a pleading shall be simple, concise, and direct.” The primary purpose of these provisions is rooted in fair notice. In order to satisfy the core requirement of fairness to the defendant, a complaint “must be presented with intelligibility sufficient for a court or opposing party to understand whether a valid claim is alleged and if so what it is.” Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 775-76 (7th Cir. 1994) (citation omitted); see also Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir.1990) (stating that a complaint “must be presented with clarity sufficient to avoid requiring a district court or opposing party to forever sift through its pages in search” of whatever it is the plaintiff asserts). A complaint that is prolix or confusing makes it difficult for the defendant to file a responsive pleading and makes it equally difficult for the trial court to conduct orderly litigation. Vicom, 20 F.3d at 776; 2A James w. Moore, et al., Moore's Federal Practice § 8.13, at 8-58 (noting that Rule 8 compliance allows a defendant to answer the complaint, and that Rule 8 prevents problems with pretrial discovery, formulating pretrial orders, and applying res judicata).

         Because Gillette filed her complaint without the assistance of counsel, we construe its contents with greater liberality than normally afforded to plaintiffs. See Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001) (citing Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998)). Nonetheless, a complaint is subject to dismissal if it does not “contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Kolbe & Kolbe Health & Wealthfare Benefit Plan v. Med. College of Wis. Inc., 657 F.3d 496, 502 (7th Cir. 2011).


         Plaintiff's Amended Complaint contains allegations that: (1) Defendants Indiana Gaming, LLC, Gaming Entertainment Indiana, Belterra Resort Indiana, LLC, RDI Caesar's Riverboat Casino, LVGV, LLC, and Rock Ohio Caesars Cincinnati, LLC, violated section 1693e of the EFTA by loaning her money and/or extending to her lines of credit, and subsequently debiting or attempting to debit sums of money from her bank account; (2) Indiana Gaming, LLC, Belterra Resort Indiana, Gaming Entertainment Indiana, and RDI Caesar's Riverboat Casino violated Indiana Code § 4-33-9-15 by extending credit to her in the form of cash, rather than tokens, chips, or electronic cards; (3) Centaur, LLC and Centaur Acquisitions, LLC, violated Indiana Code § 4-35-7-9 by extending credit to her in the form of cash, rather than tokens or electronic cards; and (4) Belterra Resort Indiana, LLC and Patrick Kilburn, violated RICO through their attempts to collect gambling debts by filing state-court actions seeking treble damages and attorney fees. Dkt. 49. We address each of Plaintiff's allegations below.

         I. Count One: Electronic Funds Transfer Act

         Plaintiff has repeated her allegations that certain Defendants violated section 1693e of the EFTA. As explained in our prior Order, section 1693e requires that any “preauthorized electronic fund transfer” from a consumer's account be authorized by the consumer in writing and a copy of the transfer be provided to the consumer when made. 15 U.S.C. § 1693e(a). In the case of multiple, recurring preauthorized transfers from a consumer's account to the same person or financial institution, prior to each transfer, the financial institution or designated ...

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