JDC Management, LLC V. Reich (644 F. Supp. 2d 905, 2009)

United States District Court for the Western District of Michigan 2009-07-24

Judiciary and Judicial Procedure

Citations

Full opinion text

OPINION AND ORDER

Denying the Plaintiffs Application for a Preliminary Injunction; Granting the FRCP 12(b)(6) Motion to Dismiss the Complaint for Failure to State a Claim

Denying w/o Prejudice as Moot the FRCP 12(b)(1) Motion to Dismiss for Lack of Standing; Terminating and Closing the Case

PAUL L. MALONEY, Chief Judge.

INTRODUCTION

This civil-rights action arises out of the Michigan Lottery Commission (“Commission”)’s denial of temporary charitable-gaming event license applications. Invoking 42 U.S.C. § 1983, JDC Management, LLC (“JDC”) claims that the Commission violated its constitutional right to the equal protection of the laws by denying the application of anyone who indicated a plan to hire JDC or JDC’s premises for its event. Unlike most equal-protection plaintiffs, JDC does not claim to be a member of a readily-cognizable group, such as a racial or ethnic group. Instead, JDC necessarily relies on the “class of one” theory of equal protection recognized in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (p.c.) and refined in Engqwist v. Oregon Dep’t of Ag., 553 U.S. -, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (Roberts, C.J.).

The Commission has persuaded the court that there existed a manifestly rational basis for employing this policy of license denials to further a legitimate State interest: protecting the public and the integrity and reputation of charitable gaming in Michigan. Accord Durham v. Louisiana State Racing Comm’n, 458 So.2d 1292, 1295 (La.1984) (“Louisiana has a genuine and legitimate interest in regulating horse racing.”) (citing Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (White, J.) (N.Y. statute authorizing summary suspension of harness-racing trainers without a pre-suspension hearing did not violate the Equal Protection or Due Process Clauses)). Cf. Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 105 (1st Cir.2002) (affirming dismissal of class-of-one selective-enforcement claim) (“As for appellee’s allegedly irrational and arbitrary motivation, Wojcik contends that they made the decision to terminate him in order to protect the ‘public perception’ of the Lottery. [T]here is simply nothing irrational about acting on that basis. The ... Lottery depends on a widely held belief that the game is fairly and honestly administered. People will not play the game (and no lottery revenues will be raised) if everyone believes that ‘the fix is in.’ Thus, when Lottery Commission officials were notified that one of their offices appeared to be rife with scandal and corruption, the responsible officials rationally decided to take swift and visible action to restore the public’s confidence.”).

It is “ ‘constitutionally irrelevant whether this reasoning’ ” — protecting public confidence in the honesty and regularity of Michigan gaming — “in fact underlay the ... decision,’ ” Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir.2002) (quoting R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960))) (emphasis added), so long as a rational basis existed, in theory, for finding that the challenged decision was rationally related to some legitimate governmental interest. See, e.g., Thurmond v. Block, 640 F.Supp. 588, 594 (W.D.Tenn.1986) (Todd, J.) (“[I]t appears to this Court that plausible reasons for the nonprofit requirement of § 2012(1) exist. Because it is constitutionally irrelevant whether this reasoning in fact underlay that requirement, this Court’s inquiry need go no further.”) (internal citations & quote marks omitted).

The record conclusively shows a rational basis to believe that a policy of denying all applications listing JDC as operator/lessor for an event furthered the Commission’s legitimate interest in protecting the public, protecting charities, and preserving public confidence in the integrity of charitable gaming in Michigan. JDC is owned by Jennifer Allen, who was married to Mike Allen during the relevant time period (and is, so far as the record reflects, still married to him). The Commission viewed that relationship against the backdrop of Mike Allen’s recent history as an operator of charitable-gaming events in Michigan. An investigation of his former company, All-In Entertainment (“All-In”), had revealed evidence that Mike and his employees repeatedly (and sometimes knowingly or intentionally) violated Michigan’s Traxler-McCauleyLaw-Bowman Bingo Act (“the Bingo Act”), M.C.L. § 432.101 et seq., and attendant regulations, in 2006 and 2007. The Commission sent Mike “Notices of Intent to Commence Formal Proceedings” against All-In in October and November 2007, laying out in detail the evidence of the alleged violations, and All-In’s counsel met with Commission officials in December 2007. The meeting led to an agreement wherein the Commission refrained from adverse legal or administrative action, in exchange for All-In’s voluntary surrender of its Michigan charitable-gaming license. In January 2008, Mike signed the agreement, surrendering All-In’s license effective May 31, 2008.

In addition, the Commission considered Mike Allen’s own statements to Commission officials, shortly before the license denials. Significantly, he repeatedly asked the officials whether his wife or other relatives could take over operation of All-In or operate a successor company to do the same charitable-gaming work in Michigan. He indicated his desire to stay involved in the field himself, rather than leaving All-In’s costly gaming equipment unused.

Moreover, the timing of certain key events naturally heightened the Commission’s suspicion that Mike Allen was using JDC as a way of operating charitable-gaming events in Michigan despite his surrender of his license to operate such events through All-In. Just one month before All-In’s license surrender date, Jennifer incorporated JDC, on April 30, 2008. Over the next week, two charitable organizations applied for temporary gaming licenses and listed JDC / Deuces Wild as the intended location of the event. Sixteen days before the surrender, JDC leased the Grand Rapids establishment known as “Deuces Wild”, on May 14, 2008. If the licenses had been approved, JDC’s first gaming events were scheduled to take place just days after the termination of All-In’s license.

For the reasons that follow, the court will deny JDC’s application for a preliminary injunction and dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

First, the court holds that the “class of one” theory does not apply in this situation, where the Commission had to make a decision that was necessarily “subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.” Engquist v. Oregon Dep’t of Agriculture, 553 U.S. -, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), nominally held only that the class of one theory does not apply to decisions made by government in its role as employer. But its rationale strongly suggests that the class-of-one theory is also unavailable in other contexts where government officials must make subjective discretionary decisions, e.g., in its role as a sovereign and regulator.

Sister courts around the country are increasingly taking this view, as in Crippen v. Town of Hempstead, 2009 WL 803117 (E.D.N.Y. Mar. 25, 2009), which declared without qualification,

In addition to the two elements set forth [in Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) ], the Supreme Court recently set forth another requirement for plaintiffs bringing class of one claims. [Specifically ... such plaintiffs must show that the differential treatment received resulted from non-discretionary state action.

Crippen, 2009 WL 803117 at *4 (emphasis added). See also Seymour’s Boatyard, Inc. v. Town of Huntington, 2009 WL 1514610 (E.D.N.Y. June 1, 2009) (extending Engquist to bar use of the class-of-one theory to challenge town’s revocation of license to operate a moor and launch from a town beach); Tarantino v. City of Hornell, 615 F.Supp.2d 102, 117 and n. 11 (W.D.N.Y.2009) (extending Engquist to bar class-of-one challenge to town code provisions governing rental property, due to the degree of discretion involved); Upthegrove v. Holm, 2009 WL 1296969, *1 (W.D.Wis. May 7, 2009) (Crabb, J.) (holding that Engquist’s rationale precludes application of class-of-one theory in context of prison employee’s decision regarding whether inmate could wear jacket at a particular time); Bissessur v. Indiana Univ. Bd. of Trustees, 2008 WL 4274451, *9 (S.D.Ind. Sept. 10, 2008) (extending Engquist to bar use of the class-of-one theory to challenge school’s decision to expel student); Siao-Pao v. Connolly, 564 F.Supp.2d 232, 245 (S.D.N.Y.2008) (extending Engquist to bar class-of-one challenge to parole board’s decision to deny parole, because of the necessarily subjective and individualized nature of such decisions); Harmon v. St. Louis Cty., 2009 WL 880024 (E.D.Mo. Mar. 30, 2009) (dismissing claim that county violated equal protection by treating plaintiff worse than others who had been in automobile accidents with a county police officer, stating broadly, “a ‘class of one’ theory of equal protection is inapplicable in a context that involves discretionary decisionmaking.”).,

On this view, JDC’s class-of-one equal protection claim is barred as a matter of law, without reference to the facts of record with regard to allegedly similarly-situated entities. See Balakrishnan v. Kusel, 2009 WL 1291755, *5 (E.D.N.Y. May 8, 2009) (rejecting medical doctor’s equal-protection challenge to non-renewal of his license (“CQ”) to serve as a laboratory director; “DOH employees make CQ decisions on a case-by-case basis after evaluating a director’s education, experience, and other relevant information, including the results of any DOH investigations into potential regulatory violations. There are no fixed rules defining when these considerations, singly or collectively, require the issuance or denial of a CQ, and therefore their assessment and balancing is inherently discretionary. Because any disparate treatment regarding the withholding of plaintiffs CQ is thus the product of discretionary state action, his ‘class of one’ claim fails as a matter of law.”) (emphasis added). Our Circuit has not yet issued a published decision extending Engquist’s limitation on the class-of-one doctrine beyond the government-employment context, but logic — and Engquist’s reasoning itself — lead the court to conclude that its limitation applies in other contexts as well, including the instant case.

Second, even if the class-of-one theory were theoretically available, JDC fails to state a claim under the theory on this record. Whatever the court might have done when confronted with these facts, the Commission clearly had a rational basis for denying applications whenever necessary to prevent JDC (and therefore Mike Allen) from operating or renting premises for a charitable-gaming event.

On the first part of the rational-basis test, JDC does not deny that the State of Michigan has a legitimate interest in protecting the public and charities and preserving the integrity and reputation of gaming, especially charitable gaming. On the second part of the rational-basis test, the Commission convincingly shows that the facts recited above gave it reason to believe that (1) Mike Allen could not be trusted to obey gaming regulations, and (2) Mike and Jennifer Allen could not be trusted not to have Mike participate in, and profit from, events nominally run by JDC, giving him the opportunity to violate gaming regulations again (and defeating the purpose of inducing him to surrender All-In’s license). In other words, denial of the JDC-eustomer charities’ event applications was reasonably tailored to achieving the State’s legitimate regulatory interests. Finally, JDC fails to identify anyone who has received an event license, or been allowed to lease premises for an event or operate an event, who is similarly situated to JDC. As confirmed by the parties’ post-hearing filings, the individual whom JDC proffers is not similarly situated to JDC under the traditional test, let alone under the stricter version of the test that may apply to class-of-one claims.

BACKGROUND

The parties agree that Jennifer Allen is married to Mike Allen, the co-owner of All-In, and that she worked as receptionist for All-In. See Comp. ¶ 13; Corrected Affidavit of Jennifer Allen dated June 15, 2008 and filed Sept. 5, 2008 (“Allen Aff.”) ¶ 12. Jennifer Allen has not challenged the Commissioner’s statement that she “signed Group Event Contracts on behalf of All-In Entertainment ... handled paperwork including filing, keeping track of event date records, player sign-in sheets, answering phones, sending out contracts.” See Defs.’ Opp., Ex. 4 — Affidavit of Deputy Commissioner Michael Petersen dated June 20, 2008 (“Petersen Aff.”) ¶ 23. The Commissioner submits copies of seven Group Event Contracts, dated January through March 2008, which bear the signature and printed name “Jennifer Allen” on behalf of All-In. See Defs.’ Opp., Ex. 5 at l.

This belies JDC’s suggestion, at oral argument, that Jennifer Allen had signed “one or two” contracts of All-In. Yet JDC has not challenged the authenticity or accuracy of the documentary evidence that Jennifer in fact signed at least seven contracts for All-In in the first three months of 2008 (leading up to her formation of JDC on April 30). Accordingly, the court accepts the documentary evidence and finds that Jennifer Allen signed at least seven contracts on behalf of All-In. In turn, it was not unreasonable for the Commission to infer from this that Jennifer played a larger role, and exercised greater authority at All-In, than a receptionist, secretary, or clerk typically would.

All-In obtained a Michigan license as a gaming equipment supplier in May 2005. See Commissioner’s Opp., Ex. 4 — Affidavit of Deputy Commissioner of the Michigan Lottery, Michael Petersen, dated June 20, 2008 (“Petersen Aff.”) ¶ 17. For the period from October 1, 2006 through September 30, 2007, All-In earned about $776,000 from the sale and rental of Millionaire Party equipment and nothing from the sale and rental of bingo equipment. See Defs.’ Opp., Ex. 12 (Supplier Annual Report apparently signed by Mike Allen and dated 10-15-07).

On October 8, 2007, the Michigan Bureau of State Lottery (“the Commission”) sent a Notice of Intent to Commence Formal Proceedings to Mike Allen and Shannon McDonough at All-In (“the first notice”). The Commission’s letter alleged that All-In had violated the Bingo Act, Mich. Comp. Laws § 432.101 et seq., and attendant administrative rules and regulations, in the following ways:

—failing to remove gaming equipment from rental facilities in Grand Rapids, Muskegon, and Lansing, within two business days after the licensed gaming events, in violation of Mich. Admin. R. 432.21805(3), see Defendants’ Brief in Opposition to Application for a Preliminary Injunction (“Commission’s Opp.”), Ex. 2 at 1;

—having All-In employees participate in and recover winnings in a licensed gaming event on August 18, 2007, in violation of Charitable Gaming Directives 4.03.04 and 4.04.02, see Commission’s Opp., Ex. 2 at 1-2;

—having Mike Allen, an owner of All-In, participate in the leasing of a location called Great Lakes Downs (“GLD”) for Millionaire Parties, as evinced by documents dated or conduct occurring between January 20, 2007 and September 18, 2007, in violation of R. 432.21811(2), see Commission’s Opp., Ex. 2 at 2-3;

—violating Mich. Comp. Laws § 432.110 and Charitable Gaming Directive No. 4.04.02 and Mich. Admin. R. 432.21811(1), the last of which prohibits “[a] licensed supplier or any owner, shareholder of the privately held corporation, partner, officer, person residing in the same household as a licensed supplier, or agent of a licensed supplier” from being “involved with the management of a licensed gaming event”, in the following ways:

having Mike Allen or other All-In employees or agents participate in the management of a Millionaire Party for which All-In provided the gaming equipment, e.g., providing All-In funds as start-up cash for several events in September and November 2006, see Commission’s Opp., Ex. 2 at 4 ¶¶ A & B; directing the completion, maintenance, and revision of financial records from a Western Michigan Tourist Association event on November 29 — Dec. 2, 2006, id. at 4-5 ¶ C;

employing as an agent and paying compensation to an officer of two charitable organizations which applied for Millionaire Party events with All-In as equipment supplier, id. at 5 ¶ D; directing a charitable organization to alter its financial record-keeping, i.e., “not to make a separate deposit” of certain funds “because the state would ask questions that she wouldn’t want to answer”, id. at 5-6 ¶ E;

Mike Allen and apparent All-In employee/agent Dave Durda telling two Michigan Association for the Deaf and Hard of Hearing employees, in February 2007, that their organization had to provide trophies for its Millionaire Party using All-In equipment, and that it could not have the trophies donated but rather should buy trophies through Durda (All-In), see id. at 6 ¶ F;

Mike Allen and Dave Durda pressuring the same two ladies to add three days to their organization’s one-day license, and then ending all contact with the organization when it proved unwilling or unable to do so, see id.;

Dave Durda telling the Lansing Jaycees that “part of his [All-In’s] charges include trophies. These trophies have to be a certain look and style.” and making the Lansing Jaycees representative feel that the group had no choice as to whether the trophies were purchased for their millionaire party, see id. at 6-7 ¶ G; having All-In agents “Adam” and Greg Osterhouse handling game chips and cash during an August 2-4, 2007 Caledonia H.S. Millionaire Party, see id. at 7 HH;

having All-In agents “Will” and Jon Parker selling game chips on the floor at an August 18, 2007 millionaire party held by the Eaton Rapids Athletic Boosters, see id. at 7 ¶ I;

—advertising millionaire parties for which All-In was the equipment supplier, in violation of Mich. Comp. Laws 432.110(5) and Mich. Admin. R. 432.21811(3), see id. at 7-8 ¶ A-D.

The sixth and final count of alleged misconduct in the Commission’s October 8, 2007 letter was entitled “Honesty and integrity of the licensee,” which Mich. Admin. R. 432.21802 requires the Commissioner to consider when reviewing a supplier license application or renewal application. See Commission’s Opp., Ex. 2 at 8. Specifically, the Commission charged that All-In violated Mich. Comp. Laws § 432.110a(d), which provides, “A qualified organization shall not receive more than $15,000.00 in exchange for imitation money or chips in 1 day of a millionaire party.” Id.

The Commission stated that it had secured affidavits from the Lansing Jaycees July 12-15, 2007 millionaire party coordinator that when he asked All-In agent Greg Osterhouse what to do when the group reached the $15,000 daily limit, Osterhouse responded, “That’s up to you, you can shut down or you can sell those.” Id. at 8-9 ¶A. When the Lansing Jaycees representative later told All-In agent Jon Parker that they had reached the $15,000 daily limit, Parker allegedly responded, “You can make a mistake and sell these by accident.” and “If you sold them by accident!,] logging the sales would be a mistake.” Id. at 9 ¶A. The Commission’s letter charged that at an August 27, 2007 Millionaire Party, All-In agent Greg Osterhouse advised the charitable group (Caledonia H.S.) to keep selling chips beyond the Mich. Comp. Laws § 432.110a(d) $15,000 daily limit but not record the sales. Id. at 9 ¶ B.

The Commissioner’s October 8, 2007 letter to All-In concluded,

Since the bureau considers the violations set forth above to be serious, formal administrative action against your license is anticipated. The [Michigan APA] provides for an informal opportunity for your organization to demonstrate compliance. Should you fail to contact our office by October 22, 2007, you will be considered to have waived your right to a compliance meeting and we will commence with formal proceedings.

To schedule a compliance meeting at our office ..., call....

Commissioner’s Opp., Ex. 2 at 9 (emphasis in original).

On November 21, 2007, the Commission sent another letter to Mike Allen and Shannon McDonough at All-In, again entitled Notice of Intent to Commence Formal Proceedings (“the second Notice”). This letter charged that All-In had again violated Mich. Comp. Laws § 432.110a(d) by encouraging and directing charitable groups to exceed the $15,000 daily limit at licensed millionaire parties on September 20-23, 2007 (Saint John’s Area Skating Association) and July 21, 2007 (Northview Athletic Booster Club). See Commissioner’s Opp., Ex. 2 at 10-11 ¶¶ A & B.

The Second Notice stated that the Commissioner considered this conduct to violate Mich. Comp. Laws § 432.21804(1) (licensed supplier agrees to obey the Bingo Act and accompanying rules and regulations) and warranted formal administrative action to revoke All-In’s charitable-gaming equipment supplier license. See id. at 11. The letter offered an informal compliance meeting if All-In requested one no later than December 5, 2007. Id. at 11-12.

On December 11, 2007, All-In’s legal counsel attended a compliance meeting with the Commission. See Petersen Aff. ¶ 19. By letter dated December 21, 2007, the Commission sent All-In a letter stating, in pertinent part,

Proposed administrative sanctions to resolve the violations specified in the Notice of Intent to Commence Formal Proceedings are contained in the enclosed agreement.

Please sign the appropriate section of the agreement and return it to this office no later than January k, 2008.

In the event that you do not respond within the time provided, this matter will be set for a formal hearing on the issues set forth in the Notice of Intent ... before an administrative law judge.

Commissioner’s Opp., Ex. 2 at 13. On January 4, 2008, Mike Allen as “co-owner” of All-In signed an agreement that stated, “To resolve the matter regarding the Notice of Intent to Commence Formal Proceedings dated November 21, 2007 and October 8, 2007, All-In Entertainment agrees, by way of signature, to: Voluntarily surrender supplier license W27300 effective May 30, 2008.” Commissioner’s Opp., Ex. 3; see also Petersen Aff. ¶¶ 20-21. On about January 31, 2008, the Commission received a letter confirming that All-In had agreed to voluntarily surrender its supplier license. Petersen Aff. ¶ 22.

On April 30, 2008 — about one month before the date on which All-In promised to surrender its gaming-equipment supplier license — Jennifer Allen formed JDC Management, LLC (“JDC”), a single-member Michigan limited-liability company. See Commissioner’s Opp., Ex. 1 (printout dated Sept. 8, 2008 from website of the Michigan Dep’t of Labor & Economic Growth, Bureau of Commercial Services, Corporation Division, http://www/ dleg.state.mi.us/bes_corp); see also Comp. ¶ 2.

JDC rents property located at 4148 Lake Michigan Drive in Grand Rapids, Michigan, a property commonly known as “Deuces Wild”, under a sub-lease executed on May 14, 2008. See JDC’s Brief in Support of Motion for Preliminary Injunction (“PI”) at 1 (citing Ex. 1); Comp. ¶ 9; Allen Aff. ¶¶ 1-2; Petersen Aff. ¶ 15. JDC’s stated business purpose is to “donate gaming equipment to certain charitable organizations for the purpose of conducting fund raisers”, which it calls “a relatively common practice in the industry.” Allen Aff. ¶¶ 4-5; see also Comp. ¶¶ 10-11.

The parties agree that on May 1 and 6, 2008, respectively, two charitable organizations' — the Grand Rapids Jaycees “(the Jaycees”) and the Rockford Band Parents (“the Parents”) — applied for so-called “Millionaire Party Licenses” (a temporary charitable-gaming license) from the Commission pursuant to the Bingo Act. See Commissioner’s Opp., Ex. 7 (Grand Jaycees application dated May 1, 2008) and Ex 8 (Band Parents application dated May 6, 2008). The Bingo Act provides that

(1) Each applicant for a license to conduct a bingo, millionaire party, raffle, charity game, or numeral game shall submit to the bureau a written application on a form prescribed by the commissioner.

(2) The application shall include all of the following:

(a) The name and address of the applicant organization.

(b) The name and address of each officer of the applicant organization.

(c) The location at which the applicant will conduct the event.

(d) The day or dates of the event.

(e) The member or members of the applicant organization who will be responsible for the conduct of the event.

(f) Sufficient facts relating to the applicant’s incorporation or organization to enable the commissioner to determine whether the applicant is a qualified organization.

(g) A sworn statement attesting to the nonprofit status of the applicant organization, signed by the principal officer of that organization.

(h) Other information the commissioner considers necessary.

Mich. Comp. Laws § 432.104. The Commissioner does not deny that the Jaycees and the Parents were “qualified organizations” as defined by the Bingo Act, see Mich. Comp. Laws § 432.103(6), and the court so finds.

As required by Mich. Comp. Laws § 432.104(2)(c), the Jaycees and Parents’ applications listed Deuces Wild, 4148 Lake Michigan Drive, Grand Rapids, Michigan as the location of the proposed April 29, 2008 and May 2008 fundraising events, and listed JDC as the lessor of the location. The Commission denied their applications. See Allen Aff. ¶ 8 and Petersen Aff. ¶¶ 11-14. By substantively identical letters dated May 27, 2008, the Commission explained to the applicants:

The Act at MCL 432.113 provides that the Commissioner shall promulgate rules to implement this Act, including rules for locations of proposed gaming events. One such rule provides, in relevant part, as follows:

Rule 109(3): “If the bureau determines that a lessor of a location to be used for the conduct of a special bingo, millionaire party ... is not in compliance with the requirements of this act, these rules, terms of probation, directives of the bureau, public policy of the State of Michigan, or any other local, state, or federal law or regulation, then the Commissioner may refuse to issue a license to a qualified organization applying to conduct the licensed gaming event at that lessor’s facility.”

Because of the past history of compliance issues involving the lessor and licensed millionaire parties conducted at the location listed on the application [Deuces Wild], the Bureau within its authority under the Act and rules has determined that it is not in the best interest of public policy to issue Millionaire Party licenses to organization who [sic] propose to conduct their event with this lessor or at this location.

Enclosed is a refund check for $200. Judicial review of this decision is provided for....

Commissioner’s Opp., Ex. 10 and Ex. 11.

While the two organizations’ applications were pending, Jennifer Allen contacted the Commission and an unidentified person allegedly told her that “the applications more than likely would be denied because of [her] prior job as the receptionist at All-In and because she was the wife of All-In’s owner.” Allen Aff. ¶ 13-14. Jennifer Allen met with the Commissioner’s representatives on May 23, 2008, and she alleges that at the meeting, “Defendants advised me not to bother entering into any more lease agreements to provide a location for Millionaire Parties as no one who was ever associated with All-In would ever get any approval from the Bureau.” Allen Aff. ¶ 16.

JDC brings this 42 U.S.C. § 1983 action against Michigan Lottery Commissioner Scott Bowen, Deputy Michigan Lottery Commissioner Tom Reich, and Deputy Michigan Lottery Commissioner Michael Petersen of the Division of Charitable Gaming (collectively “the Commission”), alleging selective enforcement of Michigan state lottery statutes and regulations in violation of JDC’s Fourteenth Amendment liberty interest and its Fourteenth Amendment right to procedural due process.

JDC seeks a preliminary injunction (“PI”) which requires the Commission to re-evaluate JDC’s Millionaire Party License applications for the Jaycees and Band Parents events; enjoins the Commission from “discriminating against JD for Mrs. Allen’s previous affiliation with All-In Entertainment or her marriage to its owner”; and enjoins the Commission from selectively enforcing state lottery regulations. The Commission filed a brief in opposition to the PI and moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), for failure to state a claim on which relief can be granted. JDC did not file a reply in support of its PI application, and the time to do so has expired.

LEGAL STANDARD: PRELIMINARY INJUNCTIVE RELIEF

“The level of proof required for the Plaintiff to obtain a preliminary injunction or TRO ‘is much more stringent than the proof required to survive a summary judgment motion.’ ” Luckett v. U.S. Bank Nat’l Ass’n, 2009 WL 22858, *2 (E.D.Mich. Jan. 5, 2009) (quoting Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000)).

To obtain preliminary injunctive relief, JDC must show that it is being threatened with a legally cognizable irreparable injury for which there is no adequate legal remedy (such as monetary damages). Audi AG v. D'Amato, 469 F.3d 534, 550 (6th Cir.2006) (citing eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (Thomas, J.)). When deciding whether to issue a PI, this court considers (1) whether JDC has shown a substantial likelihood that it will prevail on the merits, (2) whether there is a threat of irreparable harm to JDC if the injunction does not issue, (3) whether issuance of the injunction would substantially harm others, and (4) whether issuance of the injunction would serve the public interest. Essroc Cement Corp. v. CPRIN, Inc., 593 F.Supp.2d 962, 971 (W.D.Mich.2008) (Maloney, C.J.) (citing Hilliard v. Clark, 2007 WL 2589956, *3 (W.D.Mich. Aug. 31, 2007) (Maloney, J.) (citing Warshak v. US, 490 F.3d 455, 465 (6th Cir.2007))).

The failure to show any likelihood of success on the merits — let alone a strong or substantial likelihood of success — is enough, by itself, to warrant denial of preliminary injunctive relief. See Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir.2006) (“a finding of no likelihood of success ‘is usually fatal’ ”) (quoting Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.2000)); see also Essroc Cement Corp. v. CPRIN, Inc., 593 F.Supp.2d 962, 967 n. 1 (W.D.Mich.2008) (Maloney, C.J.) (“Our Circuit has not yet expressly called the likelihood of success on the merits [a] sine qua non of preliminary injunctive relief. It has held, however, that it [i]s not error to dispense with analysis of the other three factors where the movants ma[k]e a weak showing on the merits.”) (citing Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.2000) and Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003)).

DISCUSSION

The court holds today that JDC’s equal-protection, substantive due process, and procedural due process claims lack merit, so the court must find that it has not shown a likelihood of success on the merits for purposes of preliminary injunctive relief. JDC’s central contention is that the Commission “violated the Fourteenth Amendment’s Equal Protection Clause when they selectively enforced the law by denying Millionaire Party Licenses to only those qualified organizations that had contracted with JDC to use its location.” PI at 4-5.

The United States Supreme Court has “recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (citing Allegheny Pittsburgh Coal Co. v. Comm’n of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989) and Sioux City Bridge Co. v. Dakota Cty., 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923)). As our Circuit recently explained,

the Equal Protection Clause “prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.” TriHealth, Inc. v. Bd. of Comm’rs, Hamilton County, Ohio, 430 F.3d 783, 788 (6th Cir.2005). Membership in a protected class triggers heightened review, which is frequently determinative of success on the merits[,] but it should not be mistaken for a prerequisite to stating a claim in the first place.

Franks v. Rubitschun, 312 Fed.Appx. 764, 765 (6th Cir.2009) (Merritt, Moore, Cole) (emphasis added) (remanding to the U.S. District Court for the Western District of Michigan).

In Engquist v. Oregon Dep’t of Agriculture, 553 U.S. -, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008), however, the Supreme Court held that the class of one theory does not apply to decisions made by government in its role as employer. But Engquist’s rationale strongly suggests that the class-of-one theory is also unavailable in other contexts where government officials must make inherently-subjective discretionary decisions, e.g., in its role as a sovereign and regulator. Writing for a 6-3 majority, Justice Chief Justice John Roberts reasoned that Olech and the cases on which it relied did not provide a basis for universal or even broad application of the class-of-one theory outside the particular context of those cases. Chief Justice Roberts explained as follows:

Recognition of the class-of-one theory of equal protection in Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle. That case involved the government’s regulation of property. Similarly, the cases upon which the Court in Olech relied concerned property assessment and taxation schemes. See Allegheny Pittsburgh, supra [U.S.]; Sioux City Bridge, supra [U.S.]. We expect such legislative or regulatory classifications to apply “without respect to persons,” to borrow a phrase from the judicial oath. See 28 U.S.C. § 453. * * * What seems to have been significant in Olech and the cases on which it relied was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed.

There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations.... Rather, the complaint alleged that the Board consistently required only a 15-foot easement, but subjected Olech to a 33-foot easement. This differential treatment raised a concern of arbitrary classification, and we therefore required that the State provide a rational basis for it.

In Allegheny Pittsburgh, cited by the Olech court, the applicable standard was market value, but the county departed from that standard.... Again, there was no suggestion that the “dramatic differences in valuation” for similar property parcels were based on subjective considerations of the sort on which appraisers often rely.... Sioux City Bridge, also cited in Olech, was the same sort of case, recognizing an equal protection claim when one taxpayer’s property was assessed at 100 percent of its value, while all other property was assessed at 55 percent, without regard to articulated differences in the properties.

Engquist, 553 U.S. at -, 128 S.Ct. at 2153-54 (other internal citations omitted). The Engquist Court did not disturb the holdings or the rationales of Olech and its predecessors, because it agreed that a class-of-one claim is generally available to one who alleges that a government discriminated against him by irrationally departing from a clear, objective standard. See also Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Ed., 542 F.3d 529, 539 (6th Cir.2008) (Martin, Richard Allen Griffin, 8th Cir. J. John R. Gibson) (unlike a decision made by a government in its role as employer which allegedly discriminates against the plaintiffs class of one, “Decisions discriminating against identifiable classes of citizens, such as racially discriminatory firings, are more easily judged against a clear standard that enables governmental employer and courts alike to distinguish the permissible from the impermissible.”) (citing Engquist, 553 U.S. at ——, 128 S.Ct. at 2153) (emphasis added).

Technically, the Court’s holding was only that decisions made by the government in its role as employer do not fit Olech’s justification for the class-of-one theory. In explaining its rationale, however, the Engquist Court used language which can be read to preclude the class-of-one theory whenever a government official must make an inherently discretionary decision that involves subjective individual-specific determinations. In fact, it is difficult to read Engquist otherwise. Chief Justice Roberts’ majority opinion stated a broad rule which necessarily sweeps beyond the government-public context:

There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that “people should be treated alike, under like circumstances and conditions,” is not violated when one person is treated differently than others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise. Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. * * * Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns.

But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision [to complain] that it was subjective and individualized.

Engquist, 553 U.S. at -, 128 S.Ct. at 2154. The breadth of Engquist’s language militates against the notion that the class-of-one theory is available so long as the plaintiff is not a government employee. Note how the Court described the common thread uniting the government-employee and speeding-ticket situations: both involved plaintiffs misusing the Equal Protection Clause to complain that “a subjective, individualized decision ... was subjective and individualized.” Engquist, 553 U.S. at -, 128 S.Ct. at 2154. That is a categorical rejection of class-of-one challenges to subjective, individualized discretionary government decisions, not a rejection peculiar to the government-employment or traffic-enforcement contexts. Right after that, the Court wrote,

This principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.

Engquist, 553 U.S. at -, 128 S.Ct. at 2154 (emphasis added). The Court chose its language carefully. By saying that the principle (the inapplicability of the class-of-one theory) applies “most clearly” in the employment context, the Court strongly implied that it also applies in other contexts.

Therefore, the most natural reading of Engquist is this: (1) if the plaintiff is a government employee challenging a decision made by a government in its role as employer, the class-of-one theory is automatically not available, and (2) if the plaintiff instead challenges a decision made by government in some other role (such as sovereign, enforcer of criminal or traffic laws, or regulator), the trial court must determine whether the circumstances fit Engquist’s rationale. To comport with Engquist’s rationale, the class-of-one theory will not be available if the challenged decision was necessarily subjective and based on an assessment of the plaintiffs personal characteristics (other than per se suspect classifications like race and sex).

Both judges on our court and sister courts around the country are starting to take this view. Judge Robert Holmes Bell of our court captured the broad import of Engquist: “the Supreme recently has recognized that rational basis scrutiny is not properly applied to employment decisions and other discretionary decisionmaking.” Green v. Livingston, 2009 WL 1788419, *4 (W.D.Mich. June 19, 2009) (going on to quote Engquist, 553 U.S. at -, 128 S.Ct. at 2154, and holding that class-of-one theory was not available to challenge parole board’s decision whether to grant parole); accord Adams v. Meloy, 287 Fed.Appx. 531, 534 (7th Cir.2008) (also holding that class-of-one theory is not available to challenge parole board’s decision whether to grant parole; “the parole board’s inherent discretion necessitates that some prisoners will receive more favorable treatment than others.”).

The Seventh Circuit shares this view that Engquist’s rule is not confined to the government-employment context. Judge Tinder, joined by Judges Posner and Cudahy, characterized Engquist as holding that “class-of-one equal protection theory is a ‘poor fit’ where the challenged governmental action is the product of a broadly discretionary decision-making process.” US v. Moore, 543 F.3d 891, 900 (7th Cir.2008) (where person claimed that his equal-protection rights were violated because his plea to federal drug charges subjected him to a statutory mandatory minimum sentence which was not imposed on similarly-situated coconspirators who were tried in state court, the class-of-one theory was unavailable, and the coconspirators were not similarly situated anyway).

In Crippen v. Town of Hempstead, 2009 WL 803117, *4 (E.D.N.Y. Mar. 25, 2009), the district court stated broadly, “In addition to the two elements set forth [in Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)], the Supreme Court recently set forth another requirement for plaintiffs bringing class of one claims. ([Specifically ... such plaintiffs must show that the differential treatment received resulted from non-discretionary state action.”) (emphasis added). In other words, whether or not the alleged discrimination occurred in the context of government employment, “[allowing class of one Equal Protection challenges in situations where officials exercise discretionary decisionmaking would have the effect of undermining the discretion granted to state officials.” Kahlily v. Francis, 2008 WL 5244596, *4 (N.D.Ill. Dec. 16, 2008) (holding that class-of-one theory was not available to citizen challenging police officer’s discretionary decision to pull him over despite the absence of any traffic infraction and to refuse to let him turn off his taxi and secure his personal property before taking him to jail). See also Flowers v. City of Minneapolis, 558 F.3d 794, 799-800 (8th Cir.2009) (“In light of Engquist, therefore, we conclude that while a police officer’s investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim.”), reh’g & reh’g en banc denied (8th Cir. Apr. 27, 2009).

The court also finds support in Robertson v. City of Grand Rapids, 2008 WL 4822218, *9-10 (W.D.Mich. Nov. 4, 2008), where Magistrate Judge Scoville of our court held that the class-of-one theory was not cognizable in the situation at bar. The plaintiff in Robertson claimed that city police officers and a towing company had targeted him for tickets and related harassment because of personal animus. Magistrate Judge Scoville properly stated the broad principle that should be drawn from Engquist: “[I]n Engquist * * * [t]he Supreme Court held that the ‘class-of-one’ theory was not appropriate for areas involving discretionary determinations.... ” Id. at *9. The Magistrate Judge quoted language from Engquist making clear that the Supreme Court did not purport to limit this principle to the facts of that case (a government employee’s challenge to a decision made by the government qua employer) or to the facts of the example the Court used (a police officer deciding to issue a speeding ticket to one driver, rather than others, on a busy highway where people often drive above the speed limit). The Magistrate identified the key language:

“There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be ‘treated alike under like circumstances and conditions’ is not violated when one person is treated differently than others, because treating like individuals differently is an accepted consequence of the discretion granted.”

Robertson, 2008 WL 4822218 at *9-10 (quoting Engquist, — U.S. at -, 128 S.Ct. at 2154) (emphasis added). As a matter of basic English grammar, the highlighted phrase “such cases” has one and only one clear antecedent: the “forms of state action”, referred to in the previous sentence, “which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized factors.” Notably, Engquist did not purport to limit “such cases” to “claims brought by government employees” or “claims challenging decisions by law-enforcement officials”, and Magistrate Judge Scoville perceptively recognized as much.

As the First Circuit aptly stated, “[t]he Olech class of one suit serves an important but relatively narrow function. It is not a vehicle for federalizing run-of-the-mill zoning, environmental, and licensing decisions.” Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007); see, e.g., Buell v. Hughes, 596 F.Supp.2d 380, 388-89 (D.Conn.2009) (dismissing teachers’ class-of-one Equal Protection claim under Rule 12(b)(6) and noting, “It is not the role of the Court to micromanage the administration of the school system.”). This view is sensible, and it bars JDC’s class-of-one equal protection claim as a matter of law, without reference to the facts alleged. (The only relevant fact — actually a mixed law/fact determination — is the undisputed fact that the Commission’s decision on a temporary charitable-gaming license involves the exercise of discretion). If the court were to permit class-of-one claims in situations like this one where the state agency’s decision unavoidably involves the exercise of discretion, it could open the floodgates for constitutionalizing “quotidian” disagreements with government “judgment calls.” As the Tenth Circuit wisely cautioned, presaging Engquist,

In the wake of Olech, lower courts have struggled to define the contours of class-of-one cases. All have recognized that, unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decisions made by state actors. It is always possible for persons aggrieved by government action to allege, and almost always possible to produce evidence, that they were treated differently than others, with regard to everything from zoning to licensing to speeding to tax evaluation. It would become the task of federal courts and juries, then, to inquire into the grounds for differential treatment and to decide whether those grounds were sufficiently reasonable to satisfy equal protection review. This would constitute the federal courts as general-purpose second-guessers of the reasonableness of broad areas of state and local decision-making: a role that is both ill suited to the federal courts and offensive to state and local autonomy in our federal system.

Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir.2004) (emphasis added), cited by Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1221 n. 3 (10th Cir.2008) (“this and other circuits ‘have proceeded cautiously in applying the theory, sensitive to Justice Breyer’s warning against turning even quotidian exercises of government discretion into constitutional causes’ ”) (quoting Jicarilla Apache Nation v. Rio Arriba Cty., 440 F.3d 1202, 1209 (10th Cir.2006)). In short, artificially confining Engquist’s limitation on the class-of-one doctrine to the public-employment context, as JDC prefers, “could transform the federal courts into general-purpose second-guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system.” Jicarilla, 440 F.3d at 1209 (citation omitted).

Our Circuit, however, has not yet issued a published decision expressly extending Engquist’s limitation on this doctrine beyond the government-employment context. Therefore, out of an abundance of caution, this court will analyze whether JDC could state a class-of-one claim on the facts it has alleged. It cannot.

“Rational basis review begins with a strong presumption of constitutionality,” and as plaintiff JDC bears the burden of demonstrating that the challenged action (the denial of the third parties’ Millionaire Party licenses) lacked a rational basis. See Brentwood Academy v. Tenn. Secondary Schools Athletic Ass’n, 2008 WL 2811307, *2 (M.D.Tenn. July 18, 2008) (Todd Campbell, J.) (citing Graham v. Mukasey, 519 F.3d 546, 551 (6th Cir.2008)). While generally obliged to accept non-movant JDC’s well-pled factual allegations as true, the court may also credit any factual allegations by the defendants which JDC concedes or fails to effectively dispute with competent evidence. Moreover,

while the court must presume the truth of all allegations in the complaint when evaluating a Rule 12(b)(6) motion to dismiss, allegations of animus do not overcome the presumption of rationality and the court evaluates those allegations [only] once a plaintiff has shown facts that show the irrationality of the government action in question. This standard reflects the fairly intuitive idea that a given action can have a rational basis and be a perfectly logical action for a government entity to take even if there are facts casting it as one taken out of animosity.

Kohlman v. Village of Midlothian, 2009 WL 1381339, *4 (N.D.Ill. May 15, 2009) (quoting Flying J, Inc. v. City of New Haven, 549 F.3d 538, 546 (7th Cir.2008)).

Even if the class-of-one theory is available to JDC, the rational-basis standard does not present a high hurdle for the Commission. Our Circuit cautions rational-basis plaintiffs that this standard is “highly deferential” and “courts hold [government action] unconstitutional under this standard of review only in rare or exceptional circumstances.” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir.2007) (Cole, Clay, Gilman). The Supreme Court recently observed that “almost all laws ... pass rational basis scrutiny.” DC v. Heller, — U.S. -, - n. 27, 128 S.Ct. 2783, 2818 n. 27, 171 L.Ed.2d 637 (2008) (J. Scalia for the Court, joined by C.J. Roberts and JJ. Kennedy, Thomas, and Alito). The government actor is entitled to a presumption of rationality, see Sisay v. Smith, 310 Fed.Appx. 832, 844 (6th Cir.2009) (Clay, Griffin, N.D.Fla.D.J.Stafford), and the court must sustain government action against a rational-basis challenge “in areas of social and economic policy ... if there is any reasonably conceivable state of facts that could provide a rational basis” for the decision. Swisher Int’l, Inc. v. Schafer, 550 F.3d 1046, 1060 (11th Cir.2008) (quoting FCC v. Beach Comms., Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)) (emphasis in original).

Notably, the class-of-one claimant “need not [directly] demonstrate that ‘the challenged government action was motivated by animus or ill will’ ” if he can negate “ ‘every conceivable basis which might support the government action.’ ” Loesel v. City of Frankenmuth, 2009 WL 1449049, *2 (E.D.Mich. May 22, 2009) (Ludington, J.) (quoting Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir.2005)) (other internal alterations and quotation marks omitted) (emphasis added). “By definition, a ‘conceivable’ basis does not even have to have been articulated by the decisionmaker at the time of the decision.” Loesel v. City of Frankenmuth, 2009 WL 817402, *15 (E.D.Mich. Mar. 27, 2009) (Ludington, J.) (citing Nordlinger v. Hahn, 505 U.S. 1, 9, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)); accord Unruh v. Moore, 326 Fed.Appx. 770, 772 (5th Cir.2009) (holding that prisoner failed to state a class-of-one equal-protection claim, noting, “the prison officials clearly had rational grounds for denying Unruh’s application [for a job in a minimum-security facility]. * * * The fact that these reasons were not communicated to Unruh when his application was rejected is irrelevant.”).

Generally, an equal-protection plaintiff must show that he was treated differently from at least one similarly situated individual, and “[t]o satisfy this threshold inquiry, it must allege that it and other individuals who were treated differently were similarly situated in all material respects.” Taylor Acquisitions, LLC v. City of Taylor, 313 Fed.Appx. 826, 836 (6th Cir.2009) (McKeague, Griffin, S.D. Ohio D.J. Weber) (citing TriHealth, Inc. v. Bd. of Comm’rs of Hamilton Cty., Ohio, 430 F.3d 783, 790 (6th Cir.2005)) (emphasis added).

Moreover, courts should enforce the similarly-situated requirement with particular strictness when the plaintiff invokes the class-of-one theory rather than the more settled cognizable-group theory. Accord Leib v. Hillsborough Cty. Pub. Trans. Comm’n, 558 F.3d 1301, 1307 (11th Cir.2009) (“[W]e have frequently noted that the ‘similarly situated’ requirement must be rigorously applied in the context of ‘class of one’ claims.”) (citations' omitted); Smith v. Defendant A, 2009 WL 1514590, *4 (S.D.N.Y. May 29, 2009) (“Class-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.”) (citing Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006)) (emphasis added). The court is not aware of any precedent precluding us from adopting the Seventh Circuit’s sensible requirement that “[t]o be considered similarly situated, the class of one challenger and his comparators must be prima facie identical in all relevant respects or directly comparable in all material respects ”, Labella Winnetka, Inc. v. Village of Winnetka, 2009 WL 721136, *3 (N.D.Ill. Mar. 18, 2009) (quoting US v. Moore, 543 F.3d 891, 896 (7th Cir.2008)) (emphasis added), and the First Circuit’s statement, when analyzing a elass-of-one claim, that “ ‘plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.’ ” Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.2007) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006)) (emphasis added).

This strict enforcement of the similarly-situated requirement is a vital way of minimizing “the risk that, unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors”, Jennings v. City of Stillwater, 383 F.3d 1199, 1211 (10th Cir.2004).

Whether individuals or entities are similarly situated is generally a question of fact for the jury; “however, where there is no genuine issue of fact that such a comparator exists, the court may decide this matter on summary judgment.” Smith v. Atlanta Indep. Sch. Dist., 633 F.Supp.2d 1364, 1382 (N.D.Ga.2009) (citing Eggleston v. Bieluch, 203 Fed.Appx. 257, 264 (11th Cir.2006) and Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273-74 (11th Cir.2008)); accord Osborne v. Fernandez, 2009 WL 884697, *40 (S.D.N.Y. Mar. 31, 2009) (“Whether the plaintiffs and her comparators are similarly situated is a question of fact. Like all questions of fact, should the plaintiff fail to establish a genuine issue of material fact on this element ..., a court may grant a defendant’s motion for summary judgment ....”) (citing, inter alia, Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 779 (2d Cir.2007)). WTiile a plaintiff need not demonstrate that he is identical to the person who allegedly received more favorable treatment, US v. Odeneal, 517 F.3d 406, 420 (6th Cir.2008), “the plaintiff and the [person] with whom the plaintiff seeks to compare himself or herself must be similar in all of the relevant respects.” Arendale v. City of Memphis, 519 F.3d 587, 604 (6th Cir.2008) (citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998)), reh’g & reh’g banc denied (July 31, 2008).

JDC cannot show that it is “similarly situated” to other Michigan charitable-gaming equipment suppliers in a key respect: JDC was formed, and is owned and operated, by the spouse of an individual who voluntarily surrendered his company’s supplier license (rather than try to rebut a long catalogue of dishonest and illegal conduct) and who told lottery officials that he hoped to remain in the field of Michigan charitable gaming, and it was formed just before the husband’s company was to surrender its license.

JDC identifies no charitable organizations that were granted gambling-fundraiser licenses in the face of the same or even arguably-similar associations and history. The Seventh Circuit has illustrated the legitimacy of a government agency considering license applicants’ respective histories, or the apparent traits or record they evinced which might bear on a legitimate State interest in light of past events. In Herro v. City of Milwaukee, 44 F.3d 550 (7th Cir.1995), a local government denied the plaintiffs tavern license application, but nine months later approved someone else’s application to license a tavern at that same location, and he asserted a class-of-one Equal Protection claim. See Herro, 44 F.3d at 550-51. Affirming the dismissal of the claim, the Seventh Circuit logically relied heavily on the undisputed fact that the successful applicant had procured work permits and provided renovation plans, while the plaintiff had not. See Herro, 44 F.3d at 552. That was a conceivable rational basis for the differential treatment, particularly because the officials were entitled to consider the area’s history of problems with crime and litter. Id. “[U]nder these circumstances,” the panel declared, “searching for an extremely responsible licensee would be a legitimate goal, and differentiating between two applicants based on the fact that one appeared more committed than the other to the longterm condition of the premises would be a rational means of achieving it.” Id.

Even after oral argument, JDC has not contested the Commission’s statement, MTD at 16-17, that none of the four other Michigan charitable-gaming locations mentioned by JDC — “Poker Zone” in Holland, “Spectrum Lanes” in Wyoming, “Lincoln Country Club” in Standale, and “Poker Palace” in Ann Arbor — had ever been found to be in violation regarding a charit