Case 2:25-cv-00575-APG-BNW Document 45 Filed 04/09/25 Page 4 of 17
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II. Likelihood of Success on the Merits A. Jurisdiction
Kalshi alleges in the complaint that this court has jurisdiction under 28 U.S.C. § 1331 because the action arises under the Supremacy Clause. Kalshi asserts the federal question is whether Nevada’s gambling laws are preempted by the CEA as applied to Kalshi. ECF No. 1 at 4. The defendants have thus far not disputed jurisdiction in this court. A “plaintiff may bring suit under the Supremacy Clause to enjoin implementation of a state law allegedly preempted by federal statute, regardless of whether the federal statute at issue confers an express ‘right’ or cause of action on the plaintiff.” Indep. Living Ctr. of S. Cal., Inc. v. Shewry , 543 F.3d 1047, 1048-49 (9th Cir. 2008) (gathering cases); see also Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 96 n.14 (1983) (“A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.”). Consequently, I have federal question subject matter jurisdiction. B. Eleventh Amendment, Service, and Related Issues Kalshi asserts that the Eleventh Amendment does not bar suits for prospective declaratory or injunctive relief against state officers in their official capacities. ECF No. 1 at 4. In their response, the defendants did not raise an Eleventh Amendment defense and instead requested that I issue injunctive relief in their favor. In footnotes in their brief, the defendants assert that the Board and Commission were improperly named under NRS § 41.031(2), which states that when a subdivision of the state is sued, the action must be brought in the name of the State of Nevada on relation of the sued department or commission. At the injunction hearing, the
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