United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
before the court is a motion to dismiss for failure to state
a claim filed by Defendants, Bally Gaming and Caesars
Entertainment Corporation. Upon due consideration of the
motion, response, and complaint, the court is ready to rule.
and Procedural Background
plaintiff, Randy Binning, is a professional gambler from Las
Vegas, Nevada. In April of 2013, Binning allegedly learned
from other casino patrons that keno machines at various
Harrah's casinos were offering better payouts than was
usual. With knowledge of this information, Binning traveled
first to a Harrah's casino in Illinois and played their
machines for a period of approximately eighteen days, winning
a large sum of money. During that time, Binning allegedly
discovered that the Harrah's casinos located in Tunica,
Mississippi, had these same keno machines, and that they too
were paying out unusually high amounts.
soon left Illinois and made his way down to Mississippi.
While in Tunica, Binning played the machines for about four
days and, again, won a significant amount of money. Casino
personnel, however, discovered the unusually large payouts
and disconnected the machines. Because he could no longer
play, Binning departed Mississippi and returned to his home
after disconnecting the machines, casino personnel reported
to the Mississippi Gaming Commission (“MGC”) that
better payouts had been discovered, and that the casino and
Bally Gaming, Inc. (“Bally”), the manufacturer of
the machines at issue, were conducting their own
investigations regarding the unusual activity. MGC proceeded
to conduct its own independent investigation into the unusual
activity reported by the casino and, as a result of that
investigation, MGC Agent Amesha Gross swore out an affidavit
for Binning's arrest. Consequently, on June 27, 2013, a
warrant was issued for Binning's arrest for the alleged
violation of Section 75-76-301(g) of the Mississippi Code,
charging him with manipulating the keno machines to affect
month after the arrest warrant was issued, Bally submitted
its investigative report to MGC finding as follows:
During the review there was no evidence supporting that any
of the software engineers involved in the coding of the
[machines] had any knowledge of the coding error during the
time the game  was developed or tested. What was revealed
during the review was [that] the issue developed through an
inadvertent error. . . . Our review did not reveal any
evidence that a [Bally] software engineer was in contact with
any person of interest in the current investigation.
was eventually arrested pursuant to the aforementioned
warrant on January 4, 2014. Almost a month later, on February
3, 2014, a grand jury in the Circuit Court of Tunica County,
Mississippi, indicted Binning on the charges contained within
the warrant. However, on June 30, 2015, the Tunica County
Circuit Court dismissed the charges against Binning, finding
it was unable to conclude that his actions
“constitute[d] criminal acts under Mississippi law,
” and pointing to the dismissal of similar charges that
had been filed against Binning in Illinois.
a year later, on June 27, 2016, Binning filed the instant
suit. He asserts a state law claim for malicious prosecution
against defendants MGC, Gross, Bally and Caesars
(“Caesars”). Defendants Bally and Caesars filed this
motion to dismiss for failure to state a claim upon which
relief can be granted.
complaint must contain a “short and plain statement . .
. showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). For a plaintiff to survive a Rule
12(b)(6) 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, 678 (2009). A
motion to dismiss for failure to state a claim tests both the
legal and factual sufficiency of a plaintiff's complaint.
Id. at 679. Though motions to dismiss are
“viewed with disfavor and [are] rarely granted, ”
the burden rests on the plaintiff to prove her claim should
go forward. Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 497 (5th Cir. 2000).
her burden, a plaintiff cannot rest merely on “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Instead, a
plaintiff must demonstrate that facts pleaded allow the court
“to draw a reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
556. In deciding whether a plaintiff has met her burden, the
court “must accept as true all of the allegations
contained in the complaint, ” except for those
allegations which are mere legal conclusions.
Ashcroft, at 678. Moreover, the court views all
well-pleaded facts in the light most favorable to the
plaintiff. Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 ...