Commercial Litigation and Arbitration

May a Court Grant a 12(b)(6) Motion to Dismiss Solely on the Ground That the Plaintiff Failed to Respond to the Motion? (Circuit Split)

Block v. Dakota Nation Gaming Comm'n & Dakota Sioux Casino & Hotel, 2017 U.S. Dist. LEXIS 67325 (D. S.D. May 3, 2017):

Plaintiff Dawn Block filed a complaint with this Court on December 1, 2016, claiming: (1) breach of confidentiality; (2) Privacy Act of 1974; and (3) defamation. The defendants have moved to dismiss all counts pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Court is fully advised on the matter.


On or about May 23, 2014, Block was made aware that her gaming records were allegedly released by Dakota Sioux Casino and Hotel ("Dakota Sioux") "to members of a division of the Dakota Sioux Tribal Nation for purposes of defamation." Compl. ¶ 11. The records account for her winnings and losses at Dakota Sioux over the span of approximately three years. Block also claims the gaming records reveal her social security number. Block asserts that Dakota Sioux did not notify or seek her consent in releasing the gaming records. Block alleges [*2]  she was damaged as a result of Dakota Sioux divulging such records because the information was used to apply and obtain credit in her name. Block believes that Dakota Sioux released the gaming records for the purpose of damaging her reputation and character.


The defendants have moved to dismiss the plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). "A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims." Montgomery v. Compass Airlines, LLC, 98 F.Supp.3d 1012, 1017 (D. Minn. 2015) (quoting Damon v. Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013)). "In deciding a motion under Rule 12(b)(1) the Court must first distinguish between a 'facial attack' and a 'factual attack.'" Id. (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id. (quoting Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993)). In a factual challenge, the Court may look beyond the complaint's jurisdictional allegations and receive competent evidence such as affidavits, deposition testimony, and the like in order to determine the factual dispute. Titus, 4 F.3d at 593. The Court has not received affidavits, evidence, or deposition [*3]  testimony in this case. Therefore, the Court will analyze this motion as a facial challenge to subject matter jurisdiction and will look to the face of the complaint and draw all reasonable inferences in favor of the plaintiff.

"In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant." U.S. ex rel. Ravnor v, Nat'l Rural Utilities Co-op, Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012). "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.'" Mountain Home Flight Serv., Inc. v. Baxter Ctv., Ark., 758 F.3d 1038, 1042 (8th Cir. 2014) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." U.S. ex rel. Raynor, 690 F.3d at 955. "[A]lthough a complaint need not contain 'detailed factual allegations,' it must contain facts with enough specificity 'to raise a right to relief above the speculative level.'" Id. (quoting Twombly, 550 U.S. at 555).


I. Unopposed Motion to Dismiss

The defendants filed a motion to dismiss on February 2, 2017. The plaintiff has [*4]  yet to file a brief in opposition. Local Rule 7.1(B) states: "On or before 21 calendar days after service of a motion or brief, unless otherwise specifically ordered by the court, all opposing parties must serve and file a responsive brief containing opposing legal arguments and authorities in support thereof," D.S.D. Civ. LR 7.1(B) (emphasis added). Accordingly, the deadline to file a brief in opposition to the motion to dismiss was on February 23, 2017.

The circuits are split on whether a court may grant a motion to dismiss solely on the basis that the plaintiff did not file a response opposing the motion. Fed. R. Civ. P. 12, Rules and Commentary (See ITI Holdings, Inc. v. Odom, 468 F.3d 17, 19 (1st Cir. 2006)). However, after a review of the relevant case law, the Eighth Circuit has not adopted this viewpoint. Therefore, the Court will not grant the motion to dismiss solely on the basis that the plaintiff did not file a response in opposition, but rather, will apply the appropriate standard of review.

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