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Colombo Candy & Tobacco Wholesale Co. v. Ameristar Casino Council Bluffs, Inc.

United States District Court, D. Nebraska

September 19, 2013

COLOMBO CANDY & TOBACCO WHOLESALE CO., d/b/a Colombo Distribution, Plaintiff,

For Colombo Candy & Tobacco Wholesale Co., doing business as, Colombo Distribution, Plaintiff: Jill R. Ackerman, Kenneth W. Hartman, LEAD ATTORNEYS, BAIRD, HOLM LAW FIRM, Omaha, NE.

For Union Insurance, Intervenor Plaintiff: Jeffrey A. Nix, LEAD ATTORNEY, PANSING, HOGAN LAW FIRM, Omaha, NE.

For Ameristar Casino Council Bluffs, Inc., Defendant: Matthew B. Reilly, Tiernan T. Siems, LEAD ATTORNEYS, ERICKSON, SEDERSTROM LAW FIRM - OMAHA, Omaha, NE.


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Laurie Smith Camp, Chief United States District Judge.

This matter is before the Court on the Defendant's Motion to Dismiss (Filing No. 13.) For the reasons discussed below, the Motion will be granted in part.


Colombo Candy & Tobacco Wholesale Co. (" Colombo" ) brought this action against Ameristar Casino Council Bluffs, Inc. (" Ameristar" ) in the District Court of Douglas County, Nebraska, alleging that Colombo's former employee " Jane Doe" gambled away over four million dollars in embezzled funds at Ameristar's casino in Council Bluffs, Iowa. Ameristar removed the action to this Court, invoking the Court's diversity jurisdiction, and requesting trial by jury in Omaha, Nebraska, " [i]n the event the Court deems jurisdiction and venue proper[.]" (Notice of Removal and Designation of Place for Trial, Filing No. 1

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at 4.) Union Insurance intervened, asserting that it is subrogated to the rights of Colombo, because Union Insurance paid $100,000.00 to, or on behalf of, Colombo, pursuant to a policy of insurance that provided " dishonest employee coverage." (Filing No. 29.)

Ameristar moved to dismiss Colombo's Second Amended Complaint (Filing No. 1 at 63-86, hereafter " the Complaint" ), asserting that this Court lacks personal jurisdiction over Ameristar; venue is improper in the District of Nebraska; and Colombo failed to state a plausible claim upon which relief can be granted. (Motion to Dismiss, Filing No. 13.) Ameristar later withdrew its motion as it related to the Court's lack of personal jurisdiction. (Filing Nos. 34, 36.)

For purposes of the pending motion, the Court accepts as true all well-pled facts in Colombo's Complaint, though the Court need not accept Colombo's conclusions of law. Below is a summary of the facts, as pled in the Complaint.

Colombo is a Nebraska corporation with its principal office in Omaha, Nebraska. Ameristar operates a casino in Council Bluffs, Iowa, and has its principal office in that city. Jane Doe (" Doe" ) worked for Colombo as its controller from July 2010 to July 2012, during which time she embezzled or stole and disposed of over four million dollars belonging to Colombo. Doe deposited the embezzled funds into her own accounts, against which she cashed checks, made cash withdrawals, effected check card transactions, and otherwise transferred money at Ameristar. Colombo contends that Ameristar had information that would lead a reasonable person to believe that Doe was using stolen or embezzled funds to support her gambling problem, and that Ameristar intentionally enticed and enabled her to gamble extraordinary amounts of money so as to enrich Ameristar and its staff members.

Colombo presents four theories of recovery. First, it asserts that Ameristar aided and abetted Doe's tortious conduct, i.e., the embezzlement, by inducing her to gamble, thereby encouraging her unlawful procurement of funds. Second, it asserts that Ameristar aided and abetted Doe's breach of fiduciary duty to Colombo in the same manner. Third, it asserts that Ameristar did not take the transferred property, i.e., the embezzled funds, in good faith, and therefore the transfers were fraudulent and avoidable under Nebraska's Uniform Fraudulent Transfer Act, Neb. Rev. Stat. § 36-701 et seq. Fourth, Colombo asserts that Ameristar was unjustly enriched at Colombo's expense and that the funds transferred to Ameristar through Doe should be held in a constructive trust for Colombo's benefit, or Colombo should receive restitution of such sums from Ameristar.


A complaint must contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). " [A]lthough a complaint need not include detailed factual allegations, 'a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " Instead, the complaint must set forth 'enough facts to state a claim to relief that is plausible on its face.'" Id. at 630 (citing Twombly, 550 U.S. at 570).

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" '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.'" Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). " 'Courts must accept . . . specific factual allegations as true but are not required to accept . . . legal conclusions.'" Outdoor Cent., Inc. v., Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010)). " A pleading that merely pleads 'labels and conclusions,' or a 'formulaic recitation' of the elements of a cause of action, or 'naked assertions' devoid of factual enhancement will not suffice." Hamilton v. Palm, 621 F.3d 816, 817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The complaint's factual allegations must be " sufficient 'to raise a right to relief above the speculative level.'" Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011) (quoting Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009)).

When ruling on a defendant's motion to dismiss for " failure to state a claim upon which relief can be granted" under Fed.R.Civ.P. 12(b)(6), a judge must rule " on the assumption that all the allegations in the complaint are true," and " a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The complaint, however, must still " include sufficient factual allegations to provide the grounds on which the claim rests." Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009).

" Two working principles underlie . . . 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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). " Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679 (citing Twombly, 550 U.S. at 556). " Determining whether a complaint states a plausible claim for relief will . . . ...

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