Case: 5:19-cv-00211-KKC Doc #: 30 Filed: 07/05/19 Page: 1 of 11 - Page ID#: 687

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
LEXINGTON DIVISION
Electronically filed

GARY AND MARY WEST, :

:
Plaintiffs, : Case No. 5:19–CV–00211
: Judge Karen K. Caldwell
v. :
:
KENTUCKY HORSE RACING :
COMMISSION, et al., :
:
Defendants. :
:

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

In an effort to claim legal rights to which they are not entitled, the Wests’ 32-page Response

contains a series of disjointed assertions that ignore controlling statutes, regulations, and case law,

but still fails to state a claim for which relief can be granted. As much as the Wests may want to

appeal Maximum Security’s disqualification after the Kentucky Derby, they must identify some

state law that provides that right or identify a due process interest that requires it. The Wests do

neither. They fail to state a claim upon which relief can be granted because, before such a claim

can be made, “[t]he law must provide a remedy for the injury. In this case, the law, and the Rules

of Racing, provide no such relief.” White v. Turfway Park Racing Ass’n, Inc., 718 F. Supp. 615,

621 (E.D. Ky. 1989), aff’d, 909 F.2d 941 (6th Cir. 1990). The Court should dismiss the Complaint

under Rule 12(b)(6).

I. The Wests fail to state a due process claim because they can identify no deprivation
of any property interest recognized by Kentucky law.

The Wests’ Response fails to identify any legitimate claim of entitlement to a property

interest based in contract or in Kentucky law—a threshold requirement to state a due process claim.

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Golden v. City of Columbus, 404 F.3d 950, 955 (6th Cir. 2005). Thus, the Wests’ due process claim

fails to state a claim upon which relief can be granted. Willie McCormick & Assocs., Inc. v. City

of Detroit, 61 F. App’x 953, 955 (6th Cir. 2003) (“Absent a protected property interest, a plaintiff

cannot assert a due process violation.”). The Wests do not even attempt to refute the case law that

says one cannot have a property interest in a discretionary decision—thereby waiving any

objection. See Purefide v. Thompson, No. 13–66–GFVT, 2014 WL 4661955, at *2 (E.D. Ky. Sept.

18, 2014) (collecting cases) (“When a plaintiff ‘fails to respond or to otherwise oppose a

defendant’s motion, then the district court may deem the plaintiff to have waived opposition to the

motion.’”). Instead, the Response—for the first time—invokes the Accardi doctrine1 and alleges

that the Commission failed to follow certain regulations. Specifically, they claim that the Stewards

failed to follow 810 KAR 1:016 § 12 and 810 KAR 1:016 § 17 when they disqualified Maximum

Security, and that the Commission has not followed 810 KAR 1:017 § 5, thereby implicating a

liberty interest. Resp. at 13 [DE 26-1 at 22]. This new claim fails for several reasons.

A. The Wests did not plead the deprivation of a liberty interest.

The Wests improperly raise an Accardi claim for the first time in their Response to the

Commission’s Motion to Dismiss. The Wests never pleaded the violation of a liberty interest based

on a failure to follow regulations. In fact, their due process claim is expressly and singularly based

on an alleged property interest. Compl. ¶¶ 120, 121, 126. The Complaint mentions the word

“liberty” only once, and does so in Count VI. See Compl. ¶ 157 (making the feeble assertion that

the word “clear” in 810 KAR 1:016 § 12 is unconstitutionally vague). A single, stray use of the

word “liberty” in the more than 160-paragraph Complaint fails even liberal notice pleading

standards because it falls far short of providing even a label, conclusion, or formulaic recitation—

1
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

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and does not adequately state the grounds for the Wests’ alleged entitlement to the relief they seek.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (“[A] plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

a formulaic recitation of a cause of action’s elements will not do.”). Importantly, the Wests never

pleaded that the Commission failed to follow two of the regulations they now invoke—810 KAR

1:016 § 17 and 810 KAR 1:017 § 5—and upon which they base this new claim. Instead, the

Complaint only relies on 810 KAR 1:016 § 12, which outlines the Stewards’ discretionary

authority to disqualify a horse for a foul.

The Wests’ new claims cannot be raised in response to the Commission’s motion to

dismiss. See Stevens v. Allstate Corp., No. 12–60–DLB, 2013 WL 243641, at *6 (E.D. Ky. Jan.

21, 2013) (“A non-moving party plaintiff may not raise a new legal claim for the first time in

response to the opposing party’s motion to dismiss.” (quoting Berryman v. Sampson, No. 110–

CV–12169, 2011 WL 6450775, at *7 (E.D. Mich. Sept. 8, 2011))); Richter v. Seterus, Inc., No.

15–CV–12874, 2016 WL 8200520, at *2 (E.D. Mich. May 16, 2016) (“A response to a motion to

dismiss is the improper forum for asserting a new claim.”); cf. Tucker v. Union of Needletrades,

Indus. & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005) (“A non-moving party plaintiff

may not raise a new legal claim for the first time in response to the opposing party’s summary

judgment motion.” (quoting 10A Charles Alan Wright, et al., Federal Practice and Procedure

§ 2723 (3d ed. Supp. 2005))). Thus, this Court should ignore these new claims.

B. The Wests fail to state a claim even under Accardi.

Not only did the Wests fail to plead the deprivation of a liberty interest in their Complaint,

but the assertions in the Response also fail to support any claim under Accardi. In Accardi, the due

process violation arose because the agency failed to exercise the discretion granted to it by

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regulation. 347 U.S. at 268. Accardi was a habeas corpus action in which the petitioner alleged

that the Attorney General dictated a Board of Immigration Appeals decision, despite controlling

regulations requiring the board to exercise its own judgment when considering appeals. Accardi

reversed that administrative determination precisely because the agency failed to exercise its own

discretion. Id. The Wests apparently fail to perceive the irony in relying on Accardi when they

have demanded that the Commission determine fouls despite the fact that such authority is vested

solely in the Stewards under 810 KAR 1:016 § 12 and no appeal to the Commission is allowed

under 810 KAR 1:017 § 4. See Compl. ¶ 136. In this way, the Wests fail to state a claim under

Accardi. They also seem to abandon any claim that the Commission unlawfully assigned this

authority to the Stewards. Purefide, 2014 WL 4661955, at *2.

C. The Wests fail to state any due process claim against the Commission based
on 810 KAR 1:016 § 12, 810 KAR 1:016 § 17, and 810 KAR 1:017 § 5.

While the Response reiterates the Wests’ disagreement with the Stewards’ decision to

disqualify Maximum Security, the Complaint still fails to state a claim against the Commission

under 810 KAR 1:016 § 12, 810 KAR 1:016 § 17, or 810 KAR 1:017 § 5.

First, as explained in the Motion to Dismiss [DE 19-1 at 9], 810 KAR 1:016 § 12 provides

that disqualification determinations are firmly committed to the Stewards’ discretion. See 810

KAR 1:016 § 12 (“If in the opinion of the stewards a foul alters the finish of a race, an offending

horse may be disqualified by the stewards.”) (emphasis added); see also 810 KAR 1:016 § 13. The

Wests cannot claim a property interest in such a discretionary determination. Richardson v. Twp.

of Brady, 218 F.3d 508, 517 (6th Cir. 2000). The Wests fail to respond to this point, see Resp. at

19 [DE 26-1 at 28], and therefore waive any objection to it. Purefide, 2014 WL 4661955, at *2.

Moreover, the Wests’ claim that the Stewards did not comply with 810 KAR 1:016 § 12 is

built on a false premise: that the Stewards were required to make several express, written factual

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findings before they could disqualify Maximum Security. Nothing in the Commission’s

regulations requires this contrived practice. Indeed, the Commission is not aware of any

jurisdiction requiring such action by its stewards. The Wests’ attempt to rely on Wilson v.

Commissioner of Social Security, 378 F.3d 541 (6th Cir. 2004), fails because in Wilson, the Court

applied Accardi to conclude that the Commissioner of Social Security had violated a procedural

requirement—stated in regulation—that an administrative law judge make certain express

findings concerning medical proof. Id. at 549. But here, the Wests manufacture procedures not

found in the regulation and then assert those procedures have been violated. Unlike in Wilson,

there is no regulatory procedural requirement that the Stewards make express or written findings.

In Kentucky, as in every racing jurisdiction, fouls and disqualifications are determined in a

summary fashion in the minutes immediately after the race; 2 those determinations are then

announced to the public and later recorded in the daily report. Summary determination of fouls is

the universal rule in sports.3 Nothing in the Commission’s regulations requires anything different.

No regulation requires the Stewards to make express or written findings of fact or to issue a written

ruling, nor do the Stewards have to make all the micro-findings proposed by the Wests. Instead,

the Stewards only have to determine that a foul occurred and that—in their opinion—it altered the

2
With regard to § 12, the Wests complain repeatedly about their expectations and their understandings. But as
experienced thoroughbred owners who agreed to the rules of racing, they should have expected the Stewards to resolve
foul claims exactly as they did—in a summary fashion. And they should have expected to be bound by the Stewards’
determination and unable to appeal, even if they disagree with the outcome. Regardless, the Wests’ mere unilateral
“expectations” and “understandings” raised in the context of this litigation are insufficient to state any protected
property interest. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.”).
3
That the sport of horse racing is regulated by the state does not change the nature of foul calls compared to
other sports. Indeed, the effect of what the Wests propose is staggering. Consider, for example, that high school sports
are regulated by the Kentucky High School Athletic Association, which manages interscholastic sports on behalf of
the Kentucky Board of Education. KRS 156.070(2); 702 KAR 7:065. If foul calls are subject to due process challenges
like the Wests’ have brought, then every blow of the whistle at a high school sporting event—baseball, basketball,
football, soccer, softball, track, swimming, tennis—is a single filing away from an administrative hearing or—as
here—a federal lawsuit.

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finish of the race. They did so here. See Compl. ¶ 92 (stating Maximum Security “drifted out and

impacted the progress” of another horse, “in turn, interfering” with other horses, all of which were

“affected … by the interference”); Steward’s Report [DE 16-4 at 24] (stating Maximum Security

“veered out into the path” of another horse, which in turn “impeded” another horse and caused

other horses to “check sharply” and “mak[e] contact” with other horses).4 Based on those

discretionary determinations, the Stewards appropriately disqualified Maximum Security.

The Wests also imply that a “leading horse” is unable to commit a foul because he “is

entitled to any part of the track.” Resp. at 25 [DE 26-1 at 34]. They are wrong as a matter of law.

Such an assertion ignores the next sentence of the regulation: “If a leading horse or any other horse

in a race swerves or is ridden to either side so as to interfere with, intimidate, or impede any other

horse or jockey, or to cause the same result, this action shall be deemed a foul.” 810 KAR 1:016 §

12 (emphasis added). Contrary to the Wests’ strained reading of 810 KAR 1:016 § 12, the

regulation provides that a “leading horse” may commit a foul and be disqualified—as happened

here. The Stewards disqualified Maximum Security for interference. Compl. ¶¶ 13, 92. In the

Stewards’ opinion, the foul altered the finish. Otherwise, the Stewards would have expressed their

opinion that it did not—by not disqualifying the horse. To the extent any “findings” are required,

they are properly implicit in the Stewards’ disqualification determination. JPMorgan Chase Bank,

N.A. v. Bluegrass Powerboats, 424 S.W.3d 902, 910 (Ky. 2014) (holding that “implicit finding”

in part made trial court’s order not clearly erroneous). Rather than “post-hoc rationalization,” this

is fact. See Compl. ¶ 92.

Next, although the Wests complain that the Stewards failed to follow 810 KAR 1:016 § 17,

4
Even if the separate findings must be made, the Stewards’ statement and report cover the necessary ground.
The Wests would require the Stewards to recite “magic words,” but surely such pedantry is unnecessary in the context
of making a foul call in a sporting event.

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that claim is also unavailing because it is premised on the Stewards having failed to follow § 12

of the same regulation. Section 17 provides that the Stewards determine the official order of finish

when they—not the Wests—“are satisfied that the order of finish is correct and that the race has

been properly run in accordance with the rules and administrative regulations of the commission.”

As explained above, the Stewards complied with § 12. Thus, they necessarily complied with § 17.

They made this determination by disqualifying Maximum Security and setting the official order

of finish, and thereby followed the Commission’s rules and regulations. Such a discretionary

determination also creates no legitimate claim of entitlement to any property interest. Richardson,

218 F.3d at 517.

Finally, the Wests’ Response, like their Complaint, again merely assumes the existence of

a non-existent right, and still points to no legal basis for such a right. The Wests misread 810 KAR

1:017 § 5 to claim a property interest based on their post-race posturing. That claim is unsupported

by the text of that section and the entirety of the regulation. Under Kentucky law, to which the

Wests must look to find the basis for any alleged property interest, the Wests cannot, in the first

instance, demonstrate a property interest in the purse; that interest is “at best, a privilege, not a

property interest.” March v. Ky. Horse Racing Comm’n, 2013-CA-000900-MR, 2015 WL

3429763, at *3 (Ky. App. May 29, 2015). But the Wests assert that under 810 KAR 1:017 § 5, a

disappointed owner of a disqualified horse may manufacture a property interest by appealing a

disqualification determination even though such appeal is explicitly prohibited by the regulations.

See Resp. at 9 [DE 26-1 at 18] (arguing the “result was ‘placed in dispute’ by Plaintiffs through

the Appeal it [sic] filed on May 6”). The Wests’ argument is unsupported and also futile. March

holds that crossing the finish line creates no property interest. March, 2015 WL 3429763, at *3

(“As discussed, March was not required to forfeit Ethical Lawyer’s purse, he simply did not win

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it to begin with.”). The Wests may want to dismiss March, but they have no legal basis to do so.

March is the best case for this Court to predict whether Kentucky courts would recognize a

property interest in this context, and therefore it is still binding. See Reeves v. City of Georgetown,

539 F. App’x 662, 663 (6th Cir. 2013); see also Mem. in Supp. of Mot. to Dismiss at 10 [DE 19-

1]. If crossing the finish line first is insufficient to create a property interest, the Wests’ post-race

procedural maneuver is also insufficient to create a property interest or state a claim.

Moreover, 810 KAR 1:017 § 5 applies only when the result of a race is placed in dispute

after the race is declared official and is implicated only by a timely lodged objection under 810

KAR 1:017 § 2(1) and 810 KAR 1:017 § 3 (listing times for lodging objections and complaints).

The Wests did not lodge an objection consistent with 810 KAR 1:017 § 3(1)(b), nor did they lodge

an objection that may be brought after the race is declared official (e.g., under 810 KAR 1:017

§ 3(1)(c) or (d)). Instead, they “appealed” a disqualification determination. See Compl. ¶¶ 20, 21,

104, 105, 124, 135; see also Notice of Appeal [DE 1-1 at 8]. But as set forth in the Commission’s

Motion, such an appeal is not allowed under 810 KAR 1:017 § 4. Thus, the Wests have not “placed

in dispute” the results of the Derby—at least not in a way recognized or allowed by controlling

Kentucky law. For that reason, 810 KAR 1:017 § 5 is inapplicable here, and therefore the Wests

fail to state a claim under that regulation.

II. The Matthews balancing test is irrelevant because the Wests are unable to identify
any protected property interest requiring its application.

In the end, the Wests can identify no protected property interest. Thus, no process is due

and no hearing was required before—or after—the disqualification determination. See Ferencz v.

Hairston, 119 F.3d 1244, 1247 (6th Cir. 1997) (citing Roth, 408 U.S. at 570–71)). For that reason,

the Matthews balancing test is inapplicable. Regardless, the Wests fail to identify any private

interest affected and consequently there is no risk of an erroneous deprivation. Furthermore, prior

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to disqualifying Maximum Security, the Stewards “had a lengthy review of the race” and

interviewed jockeys—including Maximum Security’s jockey, Luis Saez. Compl. ¶ 88, 92. The

Wests fail to explain how granting them a hearing would mitigate the risk of erroneous deprivation

or provide any information not available from the informal fact-gathering the Stewards conducted

here.5 Id. Consequently, the Wests fail to articulate why the significant administrative burden and

cost of a formal hearing is warranted. The Wests’ due process claim and Count II of the Complaint

therefore should be dismissed.

III. The Wests’ Complaint fails to state a claim against the Commission under KRS
Chapter 13B.

The Wests’ Response wastes seven pages cobbling together a tenuous legal theory that

5
The Wests erroneously cite regulations in 18 racing jurisdictions and incorrectly assert that a majority of
thoroughbred racing jurisdictions allow disqualification appeals. Resp. at 23 [DE 26-1 at 32]. To cast the
Commission’s rule as “bizarre,” they also misrepresent the state of racing law across the country. First, the Wests’ are
flat wrong about three of these jurisdictions. New York allows appeals but only as to a “question other than a question
of fact.” 9 NYCRR 4039.5. Whether a foul occurred and whether it affected the order of finish are questions of fact.
And both Texas and Colorado expressly bar appeals of foul and disqualification determinations, just as Kentucky
does. See Tex. Occ. Code Ann. § 2023.109(b) (“A decision of the stewards or judges on a disqualification for a foul
in a race or on a finding of fact regarding the running of a race is final and may not be appealed.”); 1 Colo. Code Regs.
§ 208-1:6.401 (“A decision by the stewards regarding a disqualification or placement of a horse during the running of
the race is final and may not be appealed to the Commission.”).
Second, Kentucky’s rule is far from being an outlier or “bizarre,” and instead falls well within the
mainstream. See ARCI Model Rule ARCI-003-010(I)(6) (“A decision by the stewards/judges regarding a
disqualification during the running of the race is final and may not be appealed to the Commission.”); Cal. Code Regs.
tit. 4, § 1761(a) (allowing appeal “except a decision concerning the disqualification of a horse due to a foul or a riding
or driving infraction”); Idaho Admin. Code R. 11.04.04.160 (“decision by the Stewards regarding a disqualification
for interference during the running of the race is final and may not be appealed to the Racing Commission.”); 71 Ind.
Admin. Code 10-2-9(f) (a disqualification decision “that does not result in a ruling is final and may not be appealed”);
Iowa Admin. Code R. 491-10.4(4)a(6)(99D) (disqualification decision “may not be appealed”); Kan. Stat. Ann. § 74-
8804(j) (commission may review stewards’ decision “other than a decision regarding disqualifications for interference
during the running of a race”); Nev. Admin. Code § 30.911 (“Issues decided by the board of stewards which affect
the outcome of a race shall be final and no right of appeal shall exist.”); N.H. Code Admin. R. Lot 8009.03 (adopting
ARCI Model Rules); N.D. Admin. Code 69.5-01-03-10.c. (disqualification “determinations are final and may not be
appealed”); Okla. Stat. Ann. tit. 3A, § 204.2 (commission may review stewards’ decisions “except decisions regarding
disqualifications for interference during the running of a race”); Or. Admin. R. 462-130-0050(1) (appeal allowed
“other than as to the extent of disqualification for a foul in a race”); S.D. Admin. R 20:04:01:15 (allowing appeal of
decision “other than a hearing on a disqualification in the official order of finish of a race”); Utah Admin. Code R.
R52-7 (allowing appeal “except decisions regarding disqualifications for interference during the running of a race”);
Wash. Admin. Code 260-56-010(4) (stewards’ disqualification “decision is final and cannot be challenged under WAC
260-08-675”); Wyo. Admin. Code 038.0001.3 § 2(a)(vi) (disqualification decision “is final and may not be appealed
to the commission”).

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KRS Chapter 13B provides them the relief they seek. It does not. KRS Chapter 13B—by its express

terms—does not provide any right to appellate review. KRS 13B.020 (stating KRS Chapter 13B

“creates only procedural rights and shall not be construed to confer upon any person a right to

hearing not expressly provided by law.”). Therefore, KRS Chapter 13B expressly requires that

another Kentucky statute or regulation provide for an appeal before the procedures of that chapter

are implicated. March’s holding is clear: 810 KAR 1:017 § 4 is dispositive as to the right to appeal

a disqualification, and the Stewards’ disqualification determination is final and non-appealable.

March, 2015 WL 3429763, at *2. Controlling Kentucky regulations and case law provide no

appeal of a disqualification determination, and therefore KRS Chapter 13B cannot provide the

basis for the appeal the Wests’ seek. Although confronted with this controlling law, the Wests’

Response is devoid of reference to any law that provides for an appeal. That omission is fatal to

their alleged right to an appeal under KRS Chapter 13B, and it is therefore fatal to Counts I, III,

IV, and V of the Complaint.6

IV. The Wests’ § 1983 claims must be dismissed.

The Wests’ § 1983 claims fail as a matter of law because the Wests have identified no

protected property (or liberty) interest recognized by contract or Kentucky law, no due process

deprivation, and therefore no violation of a constitutional right. See Deters v. Ky. Bar Ass’n, 130

F. Supp. 3d 1038, 1053 (E.D. Ky. 2015), aff’d, 646 F. App’x 468 (6th Cir. 2016). The

Commission’s Motion to Dismiss also argued that the Wests make no plausible claims against the

Commission’s executive director or any of its Commissioners because the Complaint fails to allege

that these individuals actively deprived them of any rights. See, e.g., King v. Zamiara, 680 F.3d

686, 706 (6th Cir. 2012). The Wests’ Response fails to address this fatal defect and, therefore,

6
And, as explained in the Motion to Dismiss [DE 19-1 at 24-25], there was no “final order.”

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waives opposition to the Commission’s motion in this regard. Purefide, 2014 WL 4661955, at *2.

The Wests’ § 1983 claims fail as a matter of law and Count VII must be dismissed.

CONCLUSION

The Commission respectfully requests that this Court dismiss the Wests’ Complaint

because it fails to state a claim upon which relief can be granted.

Respectfully submitted,

/s/ Carmine G. Iaccarino

Carmine G. Iaccarino
Kentucky Public Protection Cabinet
656 Chamberlin Avenue, Suite B
Frankfort, Kentucky 40601
Office: (502) 564-7760
Carmine.Iaccarino@ky.gov

and

John L. Forgy
Shawn D. Chapman
Kentucky Horse Racing Commission
4063 Iron Works Parkway, Building B
Lexington, Kentucky 40511
Office: (859) 246-2040
John.Forgy@ky.gov
ShawnD.Chapman@ky.gov

Counsel for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on July 5, 2019 a copy of the foregoing was filed through the Court’s
CM/ECF system and was served on counsel for Plaintiffs Gary and Mary West via the Court’s
CM/ECF notification system.

/s/ Carmine G. Iaccarino

Counsel for Defendants

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