DOUG GRANT VS GREATE BAY CASINO

The ultimate online blackjack and poker strategy site for card counters and advantage players!

CASINOS

CATALOG

FAQ

GAMES

INDEX

FORUMS

LINKS

SCHOOL

SEARCH

HOME

ARCHIVES

EOC21

RULES

AWARDS
HISTORY
JOIN/RENEW
MODERATORS
PRIVACY
TRANSLATE

Doug Grant VS Greate Bay Casino

DOUG GRANT, INC., et al., Plaintiffs, v. GREATE BAY CASINO

CORP., et al., Defendants.

CIVIL ACTION NO. 97-4291(JEI)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

1998 U.S. Dist. LEXIS 6479

May 1, 1998, Original Filed

DISPOSITION: All of the claims relating to the alleged violations of the

CCC regulations (First, Second, Third, Fifth, Sixth, Seventh, and

Thirteenth Counts) dismissed with prejudice. Remainder of the claims

(Eighth, Ninth, Tenth, Eleventh, and Lawyer Defendant claims) remanded to

state court. Permission to reinstate the Consumer Fraud Act count (Fourth

and Twelfth Counts) denied.

COUNSEL: HOWARD A. ALTSCHULER, ESQ., Haworth, New Jersey, for Plaintiffs.

Adam N. Saravay, Esq., John J. Barry, Esq., BARRY & MCMORAN, Newark, New

Jersey, for Trump Casino Defendants and Co-Counsel for All Other Casino

Defendants and Griffin Investigations.

John M. Donnelly, Esq., LEVINE, STALLER, SKLAR, CHAN, BRODSKY & DONNELLY,

P.A., Atlantic City, New Jersey, Co-Counsel for Casino Defendants (other

than Trump Casino Defendants) and Griffin Investigations.

Damien O. Del Duca, Esq., Patrick J. Madden, Esq., MADDEN, MADDEN & DEL

DUCA, Haddonfield, New Jersey, for F. Michael Daily, Ellen Barney Balint,

and Quinne, Dunne, Daily and Higgins, P.A., Defendants.

John T. Kelley, Esq., KELLEY, WARDELL & CRAIG, LLP, Haddonfield, New

Jersey, for Meranze & Katz, Defendant.

Michael L. Rosenberg, Esq., Bart Q. Hollander, Esq., STERNS & WEINROTH,

P.C., Trenton, New Jersey, for Caplan & Luber, Lloyd S. Markind, Richard L.

Caplan, Sharon Morgan and Michele Davis, Defendants.

JUDGES: JOSEPH E. IRENAS, U.S.D.J.

OPINIONBY: JOSEPH E. IRENAS

OPINION: OPINION

IRENAS, District Judge:

Plaintiffs, who are primarily card-counting blackjack players, bring

this action against thirty-eight casino defendants ("Casino Defendants"),

three investigation agencies, and several hundred "John Doe" defendants,

alleging a conspiracy in violation of state and federal RICO statutes, and

violations of the New Jersey Public Accommodations Act and the New Jersey

Consumer Fraud Act. In addition, they assert constitutional and civil

rights claims implicating the Equal Protection Clause, the Due Process

Clause, Article 1, paragraph 1 of the New Jersey Constitution, 42 U.S.C. §

1983 and other state and federal statutes, and various common law claims

for breach of contract, fraud, tortious interference with contract and

prospective economic advantage, and negligence. The complaint also asserts

an assortment of personal injury claims. including invasions of privacy,

misappropriation of name or likeness, libel, slander, and infliction of

emotional distress. Finally, plaintiffs assert claims against nine lawyer

and law firm defendants ("Lawyer Defendants") for legal malpractice, breach

of fiduciary duty, negligence, breach of contract, and negligent

supervision. n1 Jurisdiction over plaintiffs' federal statutory and

constitutional claims is premised upon 28 U.S.C. § 1331. Jurisdiction over

plaintiffs' remaining claims is based upon the Court's supplemental

jurisdiction pursuant to 28 U.S.C. § 1367.

n1 In addition to these broad and dramatic allegations, the complaint

also reels back and forth, bursting at the seams, in its requests for

damages and relief. In just one count, the complaint makes a prayer for:

compensatory and consequential damages; punitive damages; injunctive

remedies; treble damages; interest; costs of suit; attorneys' fees; the

dissolution or reorganization of the alleged casino enterprise; the

revocation of the charter of corporate defendants organized under the laws

of the State of New Jersey; the denial, suspension or revocation of the

license of any foreign corporation; the denial, suspension or revocation of

the license or permit granted to any casino by any department or agency of

the State of New Jersey; a cease and desist order which specifies the acts

and conduct which are to be discontinued, altered or implemented; the

restitution of all moneys or property unlawfully obtained or retained by

defendants . . ., including but not limited to the return of all bets

placed by the plaintiffs, as well as the winnings plaintiffs would have

realized for each bet had plaintiffs won the maximum pay-out available per

bet;" and an assessment of civil monetary penalties against defendants to

deter future violations, in an amount equal to three times the amount of

the gain. Compl. at 76. Each of the other sixteen counts asks for similarly

broad and sweeping monetary and injunctive relief, including prayers for a

return of all money the plaintiffs would have won had the blackjack game

not been rigged, in an amount to be determined at trial, but conservatively

estimated to be at least $347,532,800 for the last six years" and for

special damages for lost bets and income and expenses in an amount to be

determined at trial." Compl. at 83, 86.

Currently before the Court are motions by all of the defendants to

dismiss the plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(6). The

defendants are also in the process of filing a motion for Rule 11

sanctions, Fed. R. Civ. P. 11, against plaintiffs' attorney and the lead

plaintiff, Doug Grant von Reiman ("Doug Grant"), who claims to act as

attorney-in-fact for the plaintiffs. We will reserve all issues relating to

the Rule 11 sanctions for consideration at a later date. For the reasons

that follow, we will grant the defendants' motions to dismiss under Fed. R.

Civ. P. 12(b)(6) as to the First Count, Second Count, Third Count, Fifth

Count, Sixth Count, Seventh Count and Thirteenth Count. These counts are

all based on the plaintiffs' central allegation that the casinos'

implementation of Casino Control Commission ("CCC") regulations violates

various federal and state statutes, the common law, and the United States

and New Jersey Constitutions. After dismissing all these federal and

related claims based on the CCC regulations, we decline to retain subject

matter jurisdiction over the remaining state law claims alleged in the

Eighth, Ninth, Tenth and Eleventh Counts and the state law malpractice

claims against the Lawyer Defendants. Because these claims do not form part

of the same case or controversy as the CCC regulation claims and because,

in any case, we have discretion to decline to exercise supplemental

jurisdiction, we will remand them to state court. As plaintiffs have

withdrawn their claims under the Fourth and Eleventh Counts, we will also

dismiss these claims.

I. BACKGROUND

The individual plaintiffs in this matter are blackjack players who

frequent the Atlantic City casinos operated by the Casino Defendants. n2

Most of them have developed card-counting skills which enable them to

reduce or eliminate the normal odds in favor of the casinos. The corporate

plaintiffs are corporations associated with plaintiff Doug Grant, Inc., a

New Jersey corporation whose predecessor corporations were involved in

operating card-counting schools and mock casinos set up by plaintiff and

renowned card-counter Doug Grant. The complaint alleges that the schools

and mock casinos were forced to close down in 1992 as the result of the

Casino Defendants' alleged illegal countermeasures against card-counters

and because of bomb threats, break-ins, destruction of property, theft of

student lists, stalking and other intimidation tactics. Doug Grant, Inc.

also provided the training for several cooperative player groups, including

many plaintiffs, who pooled their financial resources and agreed to share

their blackjack winnings.

n2 The complaint alleges that only six of the sixty individual

plaintiffs are not skilled card-counters. Compl. at P 65.

A. The Play of Blackjack, Card-Counting and Shuffling-At-Will and Other

Countermeasures

The gravamen of plaintiffs' complaint is that the Casino Defendants

undertake certain "illegal" countermeasures to eliminate the advantage a

skilled card-counter may be able to gain over the casinos in the game of

blackjack. Blackjack is the one casino game in which a player's skill may

increase his chance of winning to the point of eliminating the winning odds

in favor of the "house." Card-counters use intellect and memory to identify

when, during the course of play, the odds of winning are better or worse. A

short discussion of Atlantic City blackjack and the practice of

card-counting is necessary to assist the reader in better understanding the

plaintiffs' allegations.

Blackjack must be played with decks containing fifty-two cards of four

suits (hearts, diamonds, clubs and spades) with each suit containing

thirteen cards (Ace, King, Queen, Jack, 10, 9, 8, 7, 6, 5, 4, 3, 2).

N.J.A.C. 19:46-1.17. Before blackjack games are commenced, the dealer

receives one or more, usually between six to eight, decks from the casino

supervisor and inspects them in the presence of the floorperson. Id.

19:46-1.18(a), (f); id. 19:47-2.4(a). After the cards are inspected, the

dealer takes them to his table and spreads them out in a fan, face upwards,

for visual inspection by the first player or players to arrive at the

table. Id. 19:47-2.4(b). After the first player or players is afforded an

opportunity to visually inspect the cards, the cards are turned face

downward on the table, mixed thoroughly, shuffled until "randomly

intermixed," and then placed into a stack. Id. 19:47-2.4(c); id.

19:47-2.5(a). After the shuffle is completed, the dealer asks the player

seated at a certain position at the table, as defined by the regulations,

id. 19:47-2.5(e), to cut the deck. Id. 19:47-2.5(b). The player cuts the

deck by placing a plastic cutting card in the stack at least ten cards from

either end. Id. 19:47-2.5(c). Once the cutting card has been inserted by

the player, the dealer takes all the cards in front of the cutting card and

places them at the back of the stack. Id. 19:47-2.5(d). The dealer then

takes the entire stack of cards that was just shuffled and cut and aligns

it along the side of the dealing shoe which has a mark on the side that

enables the dealer to insert the cutting card so that it is in a position

"at least approximately" one-quarter of the way from the back of the stack.

Id. 19:47-2.5(d); see id. 19:46-1.19(d)(4). The stack of cards is then

inserted into the dealing shoe for commencement of play. Id. 19:47-2.5(d).

The cards behind the cutting card will not be used during the game. n3 Id.

19:47-2.5(h). The dealer then deals the cards to the players in a series of

blackjack hands until the dealer reaches the cutting card. Once the cutting

card is reached, the dealer repeats the shuffling process and cutting

procedures described above. Id.

n3 Plaintiffs allege that most blackjack players refuse to play if the

dealer places the cutting card more than seventy-ninety cards from the back

of the stack. The closer the cutting card is to the rear of the stack, the

greater the card-counter's ability to determine whether the shoe is rich in

player-favorable cards. Placing the cutting card closer to the front of the

stack disadvantages the card counter, but also reduces casino profitability

since more time-consuming shuffles will be needed. See infra at 7.

In the game of blackjack, where the object of play is to reach as close to

a total card value of "21" without exceeding that value, certain cards are

more favorable to the player and certain cards are more favorable to the

dealer. The player-favorable cards are the Ace, King, Queen, Jack and Ten.

The dealer-favorable cards are the 6, 5, 4, 3, and 2. The 7, 8, and 9 are

neutral. At any given point during the play of a shoe, the shoe might

contain more player-favorable cards or it might contain more

dealer-favorable cards. When there are more player-favorable cards, the

players' chances of winning are increased. When there are more

dealer-favorable cards, the dealer's chances of winning are increased.

Whether and when a shoe will turn out to be player-or dealer-favorable is

purely random.

Card-counters attempt to "count cards" so as to determine whether and

when a shoe is player-favorable. They then vary their bets, betting high

when the shoe is player-favorable and low when the shoe is

dealer-favorable. Bets are placed before each individual round of blackjack

and are generally based on the approved minimums and maximums for the

table. According to the plaintiffs, successful card-counting contains

several basic elements. These include: the assignment of a point value to

each card, maintaining a running total of those points during play, betting

strategies, playing strategies, money management, a sufficient bankroll,

and "the intangible ability to consistently apply these interrelated

strategies under fast-paced casino conditions." Compl. at P 133.1.

In order to have the most success, card-counters need to be able to

view, through the rounds of play, as many of the cards in the shoe as

possible. The greater number of cards they are able to view, the easier it

is for them to determine whether the remaining cards in the shoe are

player-favorable or dealer-favorable. For this reason, card-counters prefer

that the dealer places the cutting card toward the end of the shoe, leaving

the fewest number of cards behind the cutting-card and increasing the

overall number of cards in play. Card-counters also prefer to have the

entire shoe of cards played. If the dealer decides to reshuffle prior to

reaching the cutting card, then the card-counters' opportunity to bet high

on a shoe with a remainder of mostly player-favorable cards is eliminated.

The casinos, on the other hand, prefer to decrease the card-counters'

opportunity to bet high on a player-favorable shoe. Therefore, it is in

their interest to decrease the card-counters' chances of determining

whether a shoe is player-favorable by playing with fewer cards in the shoe

(placing the cutting card as far away from the back of the stack as

permitted by the regulations). It is also in the casinos' interest to

reshuffle prior to reaching the cutting card when the remaining cards in a

shoe are player-favorable. However, neither of these practices come

completely free of cost to the casino: the more often the dealer must

undertake the meticulous shuffling process, the shorter the actual time of

play and the smaller the profits.

Plaintiffs allege that the casinos maintain their own card-counting

teams and/or video and computer surveillance equipment to identify

card-counters and inform the dealers of their participation in a blackjack

game so that the dealers can take certain countermeasures against them.

Plaintiffs challenge these practices as violations of the "cheating games"

statute which provides that it shall be unlawful "knowingly to deal,

conduct, carry on, operate or expose for play any game or games played

with cards . . . which have in any manner been marked or tampered with, or

placed in a condition, or operated in a manner, the result of which tends

to deceive the public or tends to alter the normal random selection of

characteristics or the normal chance of the game which could determine or

alter the result of the game." N.J.S.A. 5:12-115. First, they claim that

the identifying process is fundamentally flawed because it tends to

unfairly misidentify non-card-counters as card-counters. They claim casinos

define card-counters as (1) any patron who increases a bet during a

player-favorable count, or (2) any patron who knows or is related to

someone who has increased a bet during a player-favorable count. According

to plaintiffs, once identified, that player is "branded for life" and never

able to play a "fair" game of blackjack without being subjected to

countermeasures. The casinos allegedly share information about suspected

card-counters through defendant Griffin Investigations and other similar

agencies. These agencies allegedly keep dossiers containing the pictures of

suspected card-counters which casino employees then use to spot

card-counters for purposes of knowing when to implement countermeasures.

Second, plaintiffs claim that the casinos utilize what they term the

"cheating-at-will" preferential shuffle and which, as codified by the

regulations, is generally known as the "shuffle-at-will." The

shuffle-at-will occurs when the dealer is instructed to reshuffle prior to

the cut-card marker because the casino card-counting team has determined

that the shoe is player-favorable and card-counters are suspected to be

playing at a given table. Plaintiffs allege that the shuffle-at-will

provides an extra 2% advantage to the casino, nearly double the casinos'

normal chance of winning, providing the casinos with a windfall of millions

of dollars. They also claim that the shuffle-at-will can be abused and used

to the disadvantage of non-card-counters because dealers and pit bosses can

use it to increase their revenues even when there is no suspected

card-counter playing at a table. Plaintiffs recount specific instances in

which individual plaintiffs allegedly were subjected to shuffling-at-will

by specific defendants throughout the past ten years. On some, but not all,

of these occasions, the individual defendant would report the

shuffle-at-will to the CCC and/or Department of Gaming Enforcement ("DGE")

official required to be on-site at every casino. According to plaintiffs,

no casino has ever responded to such complaints by admitting to counting

cards and shuffling during a player-favorable count.

Third, plaintiffs, allegedly because they have been identified as

card-counters, complain about being limited to one wager, being refused a

deal, having bets pushed back, being forced to bet below the original

posted limit, and having "shills" n4 occupy all seats at tables at which

they wished to play. They allege that they were treated in this manner

while other non-card-counting players were not. Fourth, plaintiffs claim

that the Casino Defendants denied them "comps" n5 after identifying them as

card-counters. Finally, plaintiffs allege that they have been threatened,

assaulted and stalked because of their suspected card-counter status. They

allege that they have been threatened in person while at the casinos by

both known and unknown casino employees and that they have been threatened

and sent pornographic materials over the Internet by unnamed John Does

allegedly connected to the casinos.

n4 "Shills" are persons used by the casinos to induce potential patrons

to enter a casino or entice potential patrons to play any game. Use of

"shills" is specifically prohibited by the Casino Control Act (the "Act").

N.J.S.A. 5:12-100(1). Plaintiffs misuse the term "shills." In fact, what

they complain about is the use of "anti-shills," persons trying not to

induce players to play a game but instead persons trying to prevent players

from playing a game.

n5 "Comps" are complimentary services such as free goods, drinks, meals,

parking, lodging. transportation, and entertainment expenses which casinos

are authorized, but not required, to provide patrons pursuant to N.J.S.A.

5:12-102(m).

B. The Casino Control Act and CCC Regulations

The Casino Control Act, N.J.S.A. 5:12-1 et seq. (the "Act"), gives the

CCC comprehensive authority to define and regulate the rules and conduct of

play for blackjack and other authorized casino games. See Uston v. Resorts

Int'l Hotel, Inc., 89 N.J. 163, 169, 445 A.2d 370 (1982) (citing N.J.S.A.

5:12-70f and 100e); see also Campione v. Adamar of N.J., 302 N.J. Super.

99, 113-14, 694 A.2d 1045 (App. Div. 1997), cert. granted, 152 N.J. 9, 702

A.2d 348 (1997). n6 It also grants the CCC "exclusive jurisdiction" over

the interpretation and enforcement of regulations governing "all matters

delegated to it or within the scope of its powers under the provisions of

[the Act]." N.J.S.A 5:12-133(b); see id. 5:12-69 to 70. Among the matters

that the Act delegates to the CCC are the promulgation of regulations

regarding the rules of casino games, including blackjack, id. 5:12-69,

70(f), gambling related advertising, id. 5:12-70(o), and the enforcement of

gaming regulations, including the investigation, adjudication, and

punishment of regulatory violations, id. 5:12-63(b), (f), (g); 5:12-64;

5:12-129.

n6 Uston and Campione are the seminal cases addressing the battle

between the Atlantic City casinos and blackjack card-counters. The New

Jersey Supreme Court in Uston determined that the casinos could not exclude

card-counters from their premises, as the CCC had not authorized exclusion

of card-counters. Uston, 89 N.J. at 166, 445 A.2d 370. The Court also held

that the Act gives the CCC exclusive and plenary authority "to set the

rules of licensed casino games, which includes the methods for playing

those games." Id. at 166.

Campione, which is currently before the New Jersey Supreme Court,

addressed many of the same issues raised in this complaint. Specifically,

it dealt with the issue of which countermeasures, short of exclusion, the

casinos could utilize to neutralize the threat posed by card-counters. In

Campione, the plaintiff, Mr. Campione, a skilled card-counter, alleged that

he was treated in a discriminatory manner by the casinos in their

implementation of certain CCC regulations. He claimed that Tropworld, the

casino in which he most frequently played blackjack, engaged in practices

of shuffling-at-will, lowering the maximum betting limit and restricting

him to playing only one hand. He maintained that Tropworld would allow

other players at the same table to bet above the maximum limit, to play

more than one hand, and to play against the dealer one-on-one, while

prohibiting him from doing the same. More specifically, Campione alleged

that on one occasion, he was playing and card-counting at a Tropworld table

with a minimum bet of $25 and a maximum bet of $1000, when he placed a $350

bet in the betting circle. Immediately, the casino floor supervisor, who

was also a member of the casino's card-counting team, instructed the dealer

to change the betting-limit sign. Campione was told that he could bet only

$100, while the other player at the table was told he could bet up to

$1000. The dealer began dealing and pushed Campione's money out of the

betting circle. Campione pushed his money back into the circle. Play began

and Campione received a ten or an eleven and sought to "double down" his

bet by betting an additional $350. He next received a nine or a ten,

winning the hand. The casino payed him only $200, $100 for each of his two

bets, instead of the $700 to which Campione believed he was entitled. A

confrontation between Campione and the floor supervisor and the CCC and DGE

representatives ensued, but Campione never received further money. See

generally, Campione v. Adamar of N.J., 274 N.J. Super. 63, 643 A.2d 42

ERR

The trial court in Campione granted summary judgment to Tropworld as to

its right to shuffle-at-will, but allowed Campione's cause of action for

discrimination to proceed to trial. Campione, 274 N.J. Super. at 83, 643

A.2d 42. The jury awarded Campione $1,519,873.43. Campione, 302 N.J. Super.

at 102, 694 A.2d 1045. The appellate court reversed the verdict, holding

that the claim never should have been heard in court since the CCC has

exclusive jurisdiction over claims regarding casino implementation of CCC

regulations and therefore no private right of action existed. Campione, 302

N.J. Super. at 110-18. 694 A.2d 1045. The appellate court also determined

that the actions taken by Tropworld were specifically permitted by the CCC

regulations. Id. at 103. Finally, it found that the CCC authorized the

disparate treatment of card-counters. Id. at 110.

The Supreme Court granted certification on October 7, 1997. Campione,

152 N.J. 9, 702 A.2d 348 (1997). Briefs were submitted on behalf of the

parties and by the CCC and DGE. Oral argument, including comments by the

CCC and DGE supporting the practices authorized by the CCC regulations and

used against Campione, was held on March 16, 1998. No opinion has yet been

issued.

The regulations governing blackjack are exhaustive and set forth in

great detail the rules for the conduct of the game. See N.J.A.C. 19:47-2.1

et seq. As recognized by the New Jersey Supreme Court, "it is no

exaggeration to state that the Commission's regulation of blackjack is more

extensive than the entire administrative regulation of many industries."

Uston, 89 N.J. at 169, 445 A.2d 370. The CCC is very aware of the

card-counter controversy. As both plaintiffs and defendants have

recognized, the CCC has carefully considered and addressed in both proposed

and adopted blackjack regulations the effect card-counters can have on the

game and the ways in which casinos should be permitted to respond to

professional card-counters. See, e.g., 14 N.J.R. 467-70 (May 17, 1982); 14

N.J.R. 559-69 (June 7, 1982); 14 N.J.R. 841 (Aug. 2, 1982); 23 N.J.R.

1784(b) (June 3, 1991); 23 N.J.R. 2613(a) (Sept. 3, 1991); 23 N.J.R. 3350

(Nov. 4, 1991); 23 N.J.R. 3354 (Nov. 4, 1991); 25 N.J.R. 3953(a) (Sept. 7,

1993); 25 N.J.R. 5521(a) (Dec. 6, 1993). The CCC regulations authorize the

casinos to use certain countermeasures to prevent professional

card-counters from overcoming the statistical advantage that is necessary

to ensure the casinos' financial viability.

The adoption of many of the CCC regulations authorizing countermeasures

occurred in response to the New Jersey Supreme Court's ruling in Uston v.

Resorts Int'l Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (1982). At issue in

Uston was whether or not casinos had the authority to exclude card-counters

from their premises. The Court determined that casinos were not authorized

to exclude card-counters. It reasoned that the Act gave the CCC exclusive

and plenary authority to set the rules and methods of play of casino games

and that the CCC had not authorized exclusion as a countermeasure. Id. at

166. The Court suggested that, if the CCC wanted to approve measures to

neutralize the card-counter threat, regulations to that effect, short of

violating possible constitutional and statutory limits by fully excluding

card-counters altogether, could be adopted. Id. at 372, 375-76. In fact,

prior to Uston, the CCC had already codified a practice originally not

intended as a card-counter countermeasure but eventually used by the

casinos for that purpose. This regulation provided that: "[a] casino

licensee may permit a player to wager on more than one box at a Blackjack

table." N.J.A.C. 19:47-2.14. n7 The CCC had been allowing the use of this

practice against card-counters through its approval of casinos' internal

Section 99 controls. See N.J.S.A. 5:12-99. n8 The rule specifically offered

casinos' discretion to allow players (usually non-card-counters) to bet on

more than one box, and presumably, in light of the discretionary language,

allowed them not to permit card-counters to bet on more than one box. n9

- n7 This 1978 regulation also provided that the CCC could prohibit a

casino from allowing patrons to wager on more than one box at a blackjack

table. The CCC felt it needed this authority, because in 1978 there was

only one casino in Atlantic City, and it wanted to ensure that, when the

blackjack tables were crowded, as many players as possible were given the

opportunity to play. This language was deleted in 1991. See 23 N.J.R.

1784(a) (June 3, 1991); 23 N.J.R. 2869(b) (Sept. 16, 1991).

The Appellate Division in Campione seems to have been under the

impression that N.J.A.C. 19:47-2.14, authorizing the casinos to permit a

player to wager on more than one box, was also adopted as part of the

card-counter countermeasures adopted in 1982 subsequent to the Uston

decision. See Campione, 302 N.J. Super. at 103, 694 A.2d 1045. However,

N.J.A.C. 19:47-2.14 was adopted well before Uston, and was originally not

intended as a countermeasure despite the fact that eventually it was used

by the casinos for that purpose.

n8 Section 99 controls are a broad set of internal practices which casinos

use to implement the CCC regulations in all areas of casino operation. As

part of their Section 99 controls, casinos are required to provide the CCC

with all of the practices they utilize to combat card-counters. If the CCC

determines that any of these practices violate the regulations, it will not

approve the offending casino's Section 99 controls.

n9 The CCC's attorneys have taken the position that because the

regulation affords the casinos discretion to permit a player to wager on

more than one box, they likewise have discretion not to permit a player to

wager on more than one box. See Unofficial Transcript of Oral Argument in

Campione, 152 N.J. 9, 702 A.2d 348, (March 16, 1998), Exh. 6 to Pl. Rule 11

Br.. Although the CCC has never officially ruled on the issue and claims

that the regulation was not originally aimed at card-counters, it is aware

of how the regulation is used and it has left the regulation in place. See

id. Similarly, the CCC approves the casinos' internal Section 99 controls

which permit casinos to allow one player to wager on more than one box but

to prohibit another player from so doing. See id. at 15; CCC Br. to New

Jersey Supreme Court in Campione, Exh. H to Casino Defendants Reply Br. at

After Uston, the CCC held a series of hearings on the issue of

card-counters and decided to enact regulations authorizing certain measures

casinos could use to neutralize the potential negative effect card-counters

could have on their financial viability. See Campione, 302 N.J. Super. at

103, 694 A.2d 1045. The new regulations, which the New Jersey Supreme Court

urged the CCC to adopt in lieu of allowing the casinos to exclude

card-counters, balanced the statutory goals of casino viability and fair

odds to all players, N.J.S.A. 5:12-100e, and were intended to ensure both

the fairness and integrity of casino gambling and "the right of the casinos

to have the rules drawn so as to allow some reasonable profit." Uston, 89

N.J. at 175, 445 A.2d 370; see, e.g., 14 N.J.R. 560-61 (June 7, 1982); 23

N.J.R. 1784 (June 3, 1991).

Several of these countermeasures involved the manner in which casinos

could shuffle the blackjack cards. The first approved shuffling method was

known as the "Bart Carter Shuffle," a "shuffling procedure in which

approximately one deck of cards is shuffled after being dealt, segregated

into separate stacks and each stack is inserted into premarked locations

within the remaining decks contained in the dealing shoe." N.J.A.C.

19:47-2.1; see N.J.R. 559(b) (June 7, 1982); 14 N.J.R. 841(b) (Aug. 2,

1982). Another approved shuffling countermeasure, known as the

"shuffle-at-will," was approved by the CCC to allow the casinos to shuffle

after any round of play. The CCC amended the existing shuffle regulation by

adding language regarding the casinos' ability to shuffle "after any round

of play:"

(a) Immediately prior to commencement of play, after any round of play as

may be determined by the casino licensee and after each shoe of cards is

dealt, the dealer shall shuffle the cards so that they are randomly

intermixed. . .

(h) A reshuffle of the cards in the shoe shall take place after the

cutting card is reached in the shoe . . . except that:

1. The casino licensee may determine after each round of play that the

cards should be reshuffled;

2. When the "Bart Carter Shuffle" is utilized a reshuffle shall take

place after the cards in the discard rack exceed approximately one deck in

number.

N.J.A.C. 19:47-2.5 (emphasis added); see 14 N.J.R. 559(b) (June 7, 1982),

14 N.J.R. 841(b) (Aug. 2, 1982).

Finally, the use of a device known as the continuous shuffling shoe was

approved:

In lieu of the dealing and shuffling requirements set forth in N.J.A.C.

19:47-2.5 and 2.6, a casino licensee may utilize a dealing shoe or other

device designed to automatically reshuffle the cards provided that such

shoe or device and the procedures for dealing and shuffling the cards

through the use of this device are approved by the Commission or its

authorized designee.

N.J.A.C. 19:47-2.20; see 14 N.J.R. 559(b) (June 7, 1982), 14 N.J.R. 841(b)

(Aug. 2, 1982).

The shuffling regulations, particularly the most commonly used

shuffle-at-will, enabled the casinos to lessen the card-counters' ability

to determine whether cards remaining in the shoe were player-favorable. As

already noted, when the cards are reshuffled continuously or prior to

reaching the cutting-card, card-counters lose their potential advantage

over the casinos because they can no longer begin betting high wagers only

when they know their chances of receiving player-favorable cards have been

increased. Though effective against card-counters, the use of these

shuffling regulations increases shuffling time and thereby causes the

casinos to lose revenue.

The CCC also authorized one non-shuffling countermeasure after the Uston

decision -- an increase in the number of decks casinos were allowed to use

in blackjack play. N.J.A.C. 19:47-2.2. This helped the casinos combat

card-counters by increasing the number of cards card-counters would have to

be able to track in order to determine whether a shoe was player-favorable.

After these initial countermeasures were authorized, the CCC in 1991

approved another regulation which provided that:

a casino licensee may at any time change the permissible minimum or

maximum wager at a table game, without notifying the Commission of such

change, upon posting a sign at the gaming table advising patrons of the new

permissible minimum or maximum wager and announcing the change to patrons

who are at the table.

N.J.A.C. 19:47-8.3(c); see 23 N.J.R. 1784(b) (June 3, 1991); 23 N.J.R.

2613(a) (Sept. 3, 1991); 23 N.J.R. 3350(a) (Nov. 4, 1991); 23 N.J.R.

3354(c) (Nov. 4, 1991). This gave the casinos the ability to automatically

lower the betting limit whenever it identified a card-counter playing at

one of its tables so that the card-counter would not be able to bet high

when the shoe became player-favorable. Then, in 1993, one further addition

was made:

(b) A casino licensee may offer:

1. Different maximum wagers at one gaming table for each permissible

wager in an authorized game; and

2. Different maximum wagers at different gaming tables for each

permissible wager in an authorized game.

wagers in effect at each gaming table, and any changes thereto, in

accordance with N.J.A.C. 19:47-8.3.

(d) Any wager accepted by a dealer which is in excess of the established

maximum permitted wager at that gaming table shall be paid or lost in its

entirety in accordance with the rules of the game, notwithstanding that the

wage exceeded the current table maximum.

N.J.A.C. 19:47-8.2(b)-(d); see 25 N.J.R. 3953(a) (Sept. 7, 1993); 25

N.J.R. 5521(a) (Dec. 6, 1993). This regulation clarified that the casinos

could specifically limit the wagers of only those patrons identified as

card-counters, while permitting non-card-counters to continue betting at

higher limits.

The New Jersey courts have recognized the legality of the CCC-authorized

countermeasures. In particular, they have recognized that the practice of

"shuffling at will," the central concern of plaintiffs' 157 page complaint,

is authorized by the CCC regulations, N.J.A.C. 19:47-2.5, and affects all

patrons, even those not counting cards, at a blackjack table. See Campione,

274 N.J. Super. 63, 79-80, 643 A.2d 42 (Law Div. 1993), rev'd, 302 N.J.

Super. 99, 694 A.2d 1045 (App. Div. 1997), cert. granted, 152 N.J. 9, 702

A.2d 348. Further, the Appellate Division in Campione, 302 N.J. Super. at

110, 694 A.2d 1045, found that the CCC "authorizes the disparate treatment

of card-counters." It noted that the countermeasures allowing betting

limits and permitting casinos to vary the number of boxes which particular

players can wager on have all been approved by the CCC. Id. at 103. Most

important, the Appellate Division ruled that "there is no private cause of

action against a casino for its alleged violation of [CCC] regulations

governing the manner in which games are played." Id. at 118. Even prior to

the Campione ruling, this Court had suggested in a footnote that no cause

of action exists against casinos for alleged violations of the Act or CCC

regulations. Tose v. Greate Bay Hotel and Casino Inc., 819 F. Supp. 1312,

1316-17 n.8 (D.N.J. 1993), aff'd, 34 F.3d 1227 (3d Cir. 1994). The Third

Circuit has subsequently agreed with our view, holding in Hakimoglu v.

Trump Taj Mahal Associates, 70 F.3d 291, 293-94 (3d Cir. 1995), what we

suggested in Tose: that where the Act and CCC regulations do not expressly

authorize imposing liability on a casino for conduct clearly within the

ambit of the detailed casino regulations, no private cause of action

exists.

B. CCC Complaint Mechanism

The CCC's regulatory enforcement powers include the authority to receive

complaints about violations of CCC regulations, to investigate such

complaints, and to hold hearings. N.J.S.A. 5:12-63(b), (f), (g); id.

5:12-66. The CCC also has the power to penalize casinos for regulatory

violations by issuing reprimands, imposing monetary civil penalties, and

even revoking licenses. Id. 5:12-64 to 129. The CCC can also require a

casino to make restitution to a complainant. Id. 5:12-129(6). If, at the

end of this enforcement process, a complainant is not satisfied, the

complainant may appeal the CCC's determination to the Appellate Division.

Id. 52:14B-12.

C. Lawyer Defendants

The Lawyer Defendants gave plaintiffs varying degrees of advice with

respect to the claims alleged in this complaint and possible other claims

related to the same set of facts. Plaintiffs now allege malpractice claims,

essentially stemming from the loss of potential claims due to various

statutes of limitations. They also assert claims against the Quinne, Dunne,

Dailey & Higgins defendants for failure to assist plaintiffs in receiving a

portion of the judgment in the test case of Campione, n10 with which

plaintiffs allege they were associated.

n10 As noted earlier, see supra note 6, the verdict in Campione was

reversed by the Appellate Division, 302 N.J. Super. 99, 694 A.2d 1045, and

is currently pending before the Supreme Court.

D. Procedural History

Plaintiffs initiated this action by filing a 74-page single-spaced

complaint in the Superior Court of New Jersey, Middlesex County, on July

18, 1997. On August 6, 1997, plaintiffs filed a petition with the CCC

setting forth the identical claims. By letter dated August 20, 1997, the

CCC responded that no action would be taken on plaintiffs' petition pending

the New Jersey Supreme Court's consideration of the Petition for

Certification in Campione. See Campione, 302 N.J. Super 99, 694 A.2d 1045,

cert. granted, 152 N.J. 9, 702 A.2d 348. On August 28, 1997, defendants

removed the case to this Court.

Prior to the initial scheduling conference, counsel for the Casino

Defendants met with plaintiffs' counsel in an effort to narrow the issues

raised in the complaint. That effort was formalized as part of the

Management Order issued by Magistrate Judge Joel B. Rosen on November 6,

1997. As directed by that order, the defendants provided plaintiffs with a

letter, dated November 6, 1997, describing their position as to why the

complaint should be withdrawn ("Rule 11 Letter"). In response, plaintiffs

filed a 157-page one-and-a-half spaced amended complaint [hereinafter

"complaint"], which omitted the antitrust, Fair Credit Reporting Act, and

Consumer Fraud Act n11 claims contained in the original complaint but added

several constitutional and civil rights claims as well as allegations

regarding the transmission of threatening and pornographic messages over

the Internet.

n11 In their reply brief, plaintiffs, without leave of court, reassert

their Consumer Fraud Act claim.

II. DISCUSSION

A. Standard of Review

Fed. R. Civ. P. 12(b)(6) provides that a court may dismiss a complaint

"for failure to state a claim upon which relief can be granted." In

considering a Rule 12(b)(6) motion, the court will accept the allegations

of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed.

2d 90, 94 S. Ct. 1683 (1974). Dismissal of claims under Fed. R. Civ. P.

12(b)(6) should be granted only if "it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would

entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d

80, 78 S. Ct. 99 (1957). Although the court must assume as true all facts

alleged, "it is not . . . proper to assume that the [plaintiff] can prove

any facts that it has not alleged." Associated General Contractors of

Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526,

74 L. Ed. 2d 723, 103 S. Ct. 897 (1983). Finally, when "confronted with [a

12(b)(6)] motion, the court must review the allegations of fact contained

in the complaint; for this purpose the court does not consider conclusory

recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836

F.2d 173, 179 (3d Cir. 1988) (emphasis added).

B. Fed. R. Civ. P. 8(a)

Fed. R. Civ. P. 8(a) provides that "[a] pleading which sets forth a

claim for relief . . . shall contain . . . a short and plain statement of

the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.

8(a). All the Rule requires is a short and plain statement of the claim

that will give the defendants fair notice of what the plaintiff's claim is

and the grounds upon which it rests. Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, 507 U.S. 163, 168, 122 L. Ed. 2d 517,

113 S. Ct. 1160 (1993).

Tipping the scales at nearly 157 pages, the complaint hardly comports

with principles of brevity. As this Court has previously noted, "the length

of the Complaint might not be deserving of criticism were all of it

necessary." See Simmerman v. Corino, 804 F. Supp. 644, 648 (D.N.J. 1992),

aff'd, 16 F.3d 405 (3d Cir. 1993). In addition to being overly long, the

complaint is inconsistent and confusing, causing this Court to expend much

valuable time in an effort to discern its meaning. While the allegations

regarding the so-called "cheating-at-will" preferential shuffle are very

specific and repetitive, the legal basis for this claim "seems to float

free from its moorings and drift into a swirl of dramatic" and largely

irrelevant contentions of perceived violations of the CCC regulations. Id.

On the other hand, the allegations that defendants violated plaintiffs'

constitutional rights, statutory civil rights, and various common law tort

principles are vague, ambiguous and clearly insufficient to provide proper

notice to allow defendants to adequately respond to the complaint and

prepare for trial. There is a strong argument that portions of the

complaint fail to comply with the strictures of Fed. R. Civ. P. 8(a) and

might afford this Court a sufficient basis for dismissal. n12 However, a

dismissal without prejudice under Fed. R. Civ. P. 8(a) would only lead to a

new filing and needlessly increase the amount of time and money already

expended. Thus, the Court will plunge into the complaint's "Serbonian Bog"

n13 and deal with the pending Fed. R. Civ. P. 12(b)(6) motions on the

merits.

n12 The heart of plaintiffs' case is whether the Act authorizes the CCC

to adopt the four or five countermeasures used by the casinos to frustrate

card-counters, particularly the countermeasures which treat card-counters

differently from other blackjack players. These could have been placed at

issue in a clearly drafted complaint of no more than ten to fifteen pages.

n13 John Milton, Paradise Lost, Bk. II, lines 591-94; see also Eugene M.

Haring, Drug Abuse and Accidental Death Benefits: Hard Drugs and Hard

Cases, 8 FORUM 45 n. 17 (1972).

Plaintiffs' wide-ranging and often diverse claims in the complaint

naturally fall into two categories: those based on alleged violations of

the CCC regulations and those based on unrelated and separable state common

law claims such as personal injury, invasion of privacy, defamation, and

attorney malpractice. Our original jurisdiction over this matter is based

entirely upon federal questions raised in some of those claims based on

alleged violations of the CCC regulations. The CCC regulation claims are in

the First, Second, Third, Fifth, Sixth, Seventh Counts and in a claim not

included in the complaint which plaintiffs now seek leave to add. The

remaining claims, although claimed to be within our supplemental

jurisdiction pursuant to 28 U.S.C. § 1367(a), are separable from the CCC

regulation claims if they do not arise from a common nucleus of operative

fact and thus fail to form part of the same case or controversy for

purposes of supplemental jurisdiction. 28 U.S.C. § 1367(a); see United Mine

Workers v. Gibbs, 383 U.S. 715, 725-26, 16 L. Ed. 2d 218, 86 S. Ct. 1130

1966

405 (3d Cir. 1993). Under 28 U.S.C. § 1367(c)(3), we also have discretion

to decline jurisdiction over any and all pendent state law claims once all

federal claims have been dismissed. See Ehrich v. B.A.T. Indus. P.L.C., 964

F. Supp. 164 (D.N.J. 1997) (once federal RICO claim was dismissed, district

court declined supplemental jurisdiction over state common law fraud, civil

conspiracy, negligence and negligent misrepresentation claims); Ifert v.

Miller, 138 B.R. 159 (E.D. Pa. 1992) (once federal RICO claim was

dismissed, district court declined supplemental jurisdiction over state

common law contract, fraud, and tortious interference claims), aff'd 981

F.2d 1247 (3d Cir. 1993); Freund v. Florio, 795 F. Supp. 702 (D.N.J. 1992)

(once Fourteenth Amendment challenges were dismissed, district court would

not retain supplemental jurisdiction over pendent claims under New Jersey

Constitution). Because our ability to adjudicate plaintiffs' complaint

hinges on the survival of the CCC regulation claims, we must first address

the merits of these claims. We will then consider whether we should decline

to exercise supplemental jurisdiction over the marginally-related state law

claims contained in the Eighth, Ninth, Tenth and Eleventh Counts and the

malpractice claims against the Lawyer Defendants.

C. RICO Claims

Plaintiffs' First Count alleges claims for racketeering under federal

RICO, 18 U.S.C. § 1964(c), New Jersey RICO, N.J.S.A. 2C:41-4(c), and the

Act RICO. N.J.S.A. 5:12-127(c). As defendants point out, the predicate acts

of alleged racketeering on which plaintiffs' RICO claims are based consist

almost exclusively of the use of countermeasures or alleged violations of

other CCC regulations. In order to make out a RICO claim, plaintiffs first

must show predicate criminal acts undertaken by the defendants which are

prohibited by the RICO statute at issue. See, e.g., 18 U.S.C. § 1961, 1962.

Plaintiffs claim the Casino Defendants committed the following predicate

acts: shuffling-at-will when the count was player-favorable, using computer

and video technology to assist in counting cards and identifying

card-counters, denying comps to plaintiffs, using shills, limiting

plaintiffs to one hand of blackjack at a time, and lowering betting limits.

Based on the premise that these uses of authorized countermeasures and

other alleged regulatory violations are criminal acts, plaintiffs'

complaint alleges that the casinos' operation of blackjack violates

criminal statutes regarding unlawful debt collection, transmission of

gambling information, operation of illegal gambling business, and

interstate commerce for an unlawful activity.

The primary purported predicate act is the shuffling of cards when the

count is favorable to the player, an act which several courts, including

this Court, have held is legal. See Hyland v. Griffin Investigation, Civ.

A. No. 95-223 (1996), Exh. A to Casino Defendants Br. The complaint alleges

that use of the "shuffling-at-will" countermeasure constitutes a predicate

act of racketeering because it violates the criminal casino "cheating"

statute, N.J.S.A. 5:12-115. The trial court in Campione rejected this

precise claim. Campione, 274 N.J. Super. at 80, 643 A.2d 42 ("labeling of

the shuffling at will as 'cheating' is specious"). We agreed with the trial

court's Campione holding in our opinion in Hyland. See Hyland, Civ. A. No.

95-223, at 19-20. Moreover, the language of the regulation itself makes

clear that the casino may shuffle at the conclusion of any round of play,

at its discretion:

(a) Immediately prior to commencement of play, after any round of play as

may be determined by the casino licensee and after each shoe of cards is

dealt, the dealer shall shuffle the cards so that they are randomly

intermixed.

(h) A reshuffle of the cards in the shoe shall take place after the

cutting card is reached in the shoe as provided in N.J.A.C. 19:47-2.6(1)

except that: 1. The casino licensee may determine after each round of play

that the cards shall be reshuffled.

N.J.A.C. 19:47-2.5(a), (h) (emphasis added).

Plaintiffs attempt at length to skew the logical interpretation of this

statute and the relevant regulatory history leading to its passage in order

to convince us that the CCC has authorized only a "random shuffle-at-will."

n14 As the Casino Defendants point out, plaintiff' suggestion of the

"random shuffle-at-will" is an oxymoron, one which the CCC never intended

to impose on the casinos.

- n14 Not only have plaintiffs devoted a large portion of their brief in

opposition to the Fed. R. Civ. P. 12(b)(6) motions to attempt to negate the

plain language of the shuffle-at-will regulations by parsing regulatory and

legislative history, but recently they have requested in their brief in

response to the defendants' Rule 11 motions that this Court consider three

new events they claim support their proposition that the CCC never

authorized the shuffle-at-will. They now claim that comments made by the

CCC and DGE during the course of various recent legal proceedings support

their position. They rely on (1) CCC and DGE comments made during oral

argument before the New Jersey Supreme Court in Campione, Unofficial

Transcript of Oral Argument in Campione, 152 N.J. 9, 702 A.2d 348, (March

16, 1998), Exh. 6 to Pl. Rule 11 Br., (2) comments made by the CCC in a

motion to dismiss an appeal taken by one of the plaintiffs to the New

Jersey Appellate Division appealing a CCC letter stating that a casino had

not violated any regulation by shuffling-at-will, In re: Patron Complaint

P98-0222 (Karen Dwyer), Exh. 8 to Pl. Rule 11 Br., and (3) a letter written

by a CCC legal analyst which states that shuffling-at-will is permitted by

the CCC regulations but that the CCC has no regulations addressing the

so-called "preferential shuffle." Letter from CCC Legal Analyst Kenneth

Doss to Martin Rose re: Patron Complaint P98-0299 (March 27, 1998), Exh. 9

to Pl. Rule 11 Br., While we are unable to determine from the documents

submitted by the plaintiffs whether or not comments made by outside counsel

and an in-house legal analyst reflect official positions held by the CCC or

DGE (in fact the CCC legal analyst's letter explicitly states that

opinions set forth herein are those of the Commission staff and are not

binding upon the Commission"), we are not at all persuaded by plaintiffs'

view of the import of these various isolated comments. We feel that, if

anything, the comments support our view of the shuffle-at-will regulations.

The regulatory history makes clear that the CCC is fully aware and approves

of the practice of shuffling-at-will when there is a player-favorable count

as a countermeasure against card-counters. When the CCC published the

proposal to allow the casinos to shuffle-at-will, it noted that the casinos

might shuffle when the count is favorable and that this practice might

affect the odds of the game:

The economic impact of this proposed amendment would vary depending on

when in fact the cards were shuffled. For example, if the cards were always

shuffled after the first round of play regardless of the point count, then

the casino advantage against the basic strategy player and average player

would probably remain the same with the advantage enjoyed by the

card-counter being decreased. If the cards, however, were only shuffled in

positive point count situations and not in negative point count situations,

the casino advantage against all types of players would increase.

14 N.J.R. 470 (May 17, 1982).

Furthermore, the regulatory history which plaintiffs painstakingly cite

as support for their position that the CCC did not authorize the

shuffle-at-will as a countermeasure does not prove what they would like it

to prove. Plaintiffs rely on comments made during hearings on the proposed

shuffle-at-will which explore possible disadvantages of the shuffle-at-will

without acknowledging that, these disadvantages notwithstanding, the CCC

decided that the shuffle-at- will was the best alternative to neutralize

the threat posed by card-counters. The recent brief filed as the official

CCC position before the New Jersey Supreme Court in the Campione case

further demonstrates the CCC's unequivocal acceptance of the

shuffle-at-will, as well as the other countermeasures plaintiffs allege

constitute predicate acts. In their brief, the CCC specifically states "the

practice of 'shuffling-at-will' is authorized by Commission regulations at

N.J.A.C. 19:47-2.5 and affects all patrons at a blackjack table." CCC Brief

at 5, Exh. H to Casino Def. Reply Br. The CCC brief continues:

The Commission accords to casino licensees the discretion to permit a

player to wager on more than one "box" or place at a table. N.J.A.C.

19:47-2.14. The Commission has also approved internal control submissions,

filed by casino licensees pursuant to N.J.S.A. 5:12-99, which give casino

licensees the discretion to permit a player to exceed the wager limit at a

table. No Commission regulation requires that these measures be applied on

a table-wide basis, nor has the Commission otherwise required such

application of these rules. These rules balance the statutory goals of

casino vitality and fair odds to all players, N.J.S.A. 5:12-100e, and must

consider both the fairness and integrity of casino gaming and the "right of

the casinos to have the rules drawn so as to allow some reasonable profit."

Id. at 5-6 (quoting Uston, 89 N.J. at 175, 445 A.2d 370). Plaintiffs

simply cannot claim as predicate acts those practices clearly authorized by

the CCC.

Plaintiffs' other alleged predicate acts are similarly insufficient to

support a RICO claim. The alleged violations of criminal statutes regarding

unlawful debt collection, 18 U.S.C. § 1962, transmission of gambling

information, 18 U.S.C. § 1084, interference with commerce by threats or

violence, 18 U.S.C. § 1951, interstate commerce for unlawful activity, 18

U.S.C. § 1952, and operating an illegal gambling business, 18 U.S.C. §

1955, all derive from the allegations regarding the use of authorized

countermeasures and other alleged violations of the CCC regulations. Any

debts allegedly "unlawfully collected" are those lost by plaintiffs during

blackjack games played in accordance with the CCC regulations. Any "illegal

gambling business" or "unlawful activity in interstate commerce" is simply

the play of blackjack as authorized by the CCC. Similarly, the casinos do

not engage "in unlawful activity" or "operating an illegal gambling

business" by not offering plaintiffs "comps," which are free gifts casinos

have absolutely no obligation to offer. These activities do not constitute

crimes and therefore are not predicate acts. Furthermore, plaintiffs,

although mentioning the use of "shills" in their complaint, n15 have not

made any allegations that the casinos violate the statutory prohibition of

the use of "shills," persons who induce potential patrons to enter a casino

or induce them to play any game. N.J.S.A. 2:15-100(1). Thus, plaintiffs'

"shills" allegation likewise fails to state a predicate act.

n15 As noted earlier, see supra note 4, plaintiffs' complaints about

"shills" are really complaints about the alleged use of "anti-shills."

The only alleged predicate acts that are not based on CCC regulations are

the allegations of assaults, threats, and stalking in person and via the

Internet. Plaintiffs allege that one plaintiff was knocked off his seat on

one occasion, that some plaintiffs were followed around casinos, and that

one plaintiff was grabbed by the arm while being escorted out of a casino.

However, these minor altercations do not constitute crimes and therefore

are not predicate acts. Nor do the plaintiffs' claims of receiving

anonymous pornographic, offensive and threatening messages over the

Internet from John Doe defendants constitute predicate acts as plaintiffs

put forth no basis for alleging that the messages were sent by anyone

associated with the Casino Defendants.

Plaintiffs have also not alleged a compensable injury to "business or

property" within the meaning of the RICO statutes. In order to state a

claim under RICO, a plaintiff must allege an injury to "business or

property" that is proximately caused by the RICO violation. 18 U.S.C. §

1964(c). Injury to "business or property" requires a "concrete financial

loss, and not mere 'injury to a valuable intangible property interest.'"

Steele v. Hosp. Corp. of America, 36 F.3d 69, 70 (9th Cir. 1994). A lost

opportunity to obtain a financial benefit is too speculative to constitute

an injury to business or property under RICO. Anderson v. Kutak, Rock and

Campbell, 51 F.3d 518, 522 (5th Cir. 1995). A plaintiff must allege

present, actual damages, not speculative claims of lost future

opportunities. Id. at 522-23; Steele, 36 F.3d at 70-71. In addition,

personal injuries are not compensable under RICO. Genty v. Resolution Trust

Corp., 937 F.2d 899, 918-19 (3d Cir. 1991).

The only injuries plaintiffs have identified in connection with their

RICO claims are (1) the closing of card-counting schools and mock casinos,

and (2) the loss of gambling income. The alleged closure of the

card-counting schools and mock casinos might have constituted compensable

injury for those plaintiffs involved in them if these alleged injuries had

occurred within the four-year statute of limitations applicable to civil

RICO claims. Klehr v. A.O. Smith Corp., 138 L. Ed. 2d 373, 117 S. Ct. 1984

(1997). However, as the schools were closed in 1992, the plaintiffs' RICO

claim based on this predicate act is time-barred. Plaintiffs' alleged loss

of tens of millions of dollars n16 in gambling income is far too

speculative to constitute compensable injury to business or property. The

loss of an opportunity to gamble under favorable conditions does not

constitute injury to business since plaintiffs are not, and do not so

allege in their complaint, in the "business" of gambling. It also does not

constitute injury to "property" since there is no property right in the

opportunity to gamble under any circumstances. let alone under favorable

conditions. In addition, any such loss is far too speculative to be

compensable, see Anderson, 51 F.3d at 522-23; Steele, 36 F.3d at 70-71,

especially since the complaint itself acknowledges that there are numerous

authorized countermeasures that the casinos can properly use to completely

eliminate any possible advantage a card-counter might be able to obtain.

Finally, most of the plaintiffs allegedly ceased card-counting prior to the

four-year statute of limitations. Thus, plaintiffs RICO claims fail because

they have not shown any predicate acts or any injury to "business" or

"property." Accordingly, we will dismiss them under Rule 12(b)(6) for

failure to state a claim upon which relief may be granted.

n16 In their RICO count, plaintiffs allege an injury to business or

property in their loss of tens of millions of dollars in lost gambling

income. Compl. at P 276. Later, plaintiffs make a claim for nearly two

hundred and fifty million dollars, claiming "an extremely conservative and

mathematically provable estimate of minimum losses... over the last six

years amounting to $248,000,000." Id. at P 283. Factoring in the alleged

value of lost comps, they claim the loss rises to $347,532,800. One

paragraph of plaintiffs' complaint alleges that during a cooperative effort

from June 1989 to May 1990, participating plaintiffs, betting an average of

$400 per hand, made average daily wagers of approximately $5,760,000 per

day. It then alleges that use of shuffling-at will by the casinos resulted

in lost income of $115,000 per day (based on two shifts of 30 players

playing four hours per shift, making an average of 60 wagers per hour at

$4000 per wager and 2% additional casino advantage over the normal chance

of the game as a result of the shuffle-at-will). If the casinos were not

entitled to use the shuffle-at-will, plaintiffs claim they would have won,

during this 11-month period of alleged daily playing by 30 players,

approximately $37,950,000. If only 30 card-counters could cause this much

loss, casinos would no longer be financially viable unless they ceased to

offer the game of blackjack, one of the most popular casino games, or

devised new countermeasures which would leave plaintiffs no better off than

they are now.

D. Common Law Claims

Similarly, plaintiffs' claims in their Second Count (contractual

claims), Third Count (fraud and misrepresentation claims), Fifth Count

(tortious interference claims) and Seventh Count (negligence claims) fail

to state claims upon which relief may be granted because the casinos are

legally entitled to subject card-counters to countermeasures such as

shuffling-at-will, keeping track of known card-counters, and advertising

the game of blackjack as a fair game of chance. Although plaintiffs attempt

to bolster their essential charge that the casinos cannot take

countermeasures to neutralize card-counters by expanding it into these

specious claims under the common law, the simple fact remains that the

casinos are explicitly authorized to undertake the practices plaintiffs

claim are illegal.

It is well-established that casino patrons cannot assert private causes

of action based on alleged violations of CCC regulations regarding the

rules of casino games. See Campione, 302 N.J. Super. at 110. 118; 694 A.2d

1045

A.2d 73 (App. Div. 1994). Even where, unlike here, a violation of the CCC

regulations takes place, courts refuse to find a private cause of action.

Miller v. Zoby, 250 N.J. Super. 568, 571-73, 595 A.2d 1104 (App. Div.),

cert. denied, 127 N.J. 553, 606 A.2d 366 (1991); cf. Hakimoglu, 70 F.3d at

293-94 (holding that casino is not liable under common law tort for serving

patron free drinks and allowing him to continue gambling while

intoxicated); Marcangelo v. Boardwalk Regency Corp., 847 F. Supp. 1222,

1229 (D.N.J. 1994) (holding that common law claims for breach of contract

and fraud based on conduct governed by CCC regulations are not viable, as

the "respective rights and obligations of the parties have been articulated

and developed by statutes and regulations, not by the common law," and thus

such claims would be preempted by the Act), aff'd, 47 F.3d 88 (3d Cir.

1995); Tose, 819 F. Supp. at 1316 n.8 (suggesting no common law tort

liability against casinos for serving patron alcoholic drinks and allowing

her to continue gambling while intoxicated). Thus, we will dismiss these

claims, like the RICO claims, pursuant to Rule 12(b)(6). n17

n17 We note that, even if plaintiffs did have a private cause of action

against the casinos for alleged regulatory violations, their claim for

tortious interference with prospective economic advantage would fail

because it does not allege a reasonable expectation of economic advantage.

See Woods Corp. Ass'n v. Signet Star Holdings, 910 F. Supp. 1019, 1031

(D.N.J. 1995). The CCC regulations governing blackjack are designed to

ensure a statistical advantage to the casinos, even against card-counters.

See Campione, 302 N.J. Super. at 110, 694 A.2d 1045; Hyland, at 20, Exh. A

to Casino Def. Br.. Plaintiffs' claim that, nonetheless, they have a

reasonable expectation of consistently winning great sums of money at

blackjack ignores the economic reality of the New Jersey casino system.

E. Constitutional and Civil Rights Claims

Plaintiffs' Sixth Count alleges violations of the Equal Protection

Clause, the Due Process Clause, Article 1, paragraph 1 of the New Jersey

Constitution, and 42 U.S.C. § 1983. n18 As defendants correctly point out,

this count fails to state a claim upon which relief can be granted for

several reasons. First, plaintiffs' allegations of state action are

insufficient. State regulation and the CCC's authorization of casino

activities does not transform the casinos into state actors. See Uston v.

Hilton Hotels Corp., 448 F. Supp. 116, 118 (D. Nev. 1978); State v.

Sanders, 185 N.J. Super. 258, 267, 448 A.2d 481 (App. Div. 1982). It is

well-established that "mere approval of or acquiescence in the initiatives

of a private party is not sufficient to justify holding the State

responsible for those initiatives under the terms of the Fourteenth

Amendment." Blum v. Yaretsky, 457 U.S. 991, 1004-05, 73 L. Ed. 2d 534, 102

S. Ct. 2777 (1982); see Jackson v. Metropolitan Edison Comp., 419 U.S. 345,

350-51, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974). Second, plaintiffs have not

suffered any equal protection clause violation since, under the rational

basis test applicable for a non-protected class such as card-counters

subject to CCC regulations, see Bally Mfg. Corp. v. New Jersey Casino

Control Comm'n, 85 N.J. 325, 335, 426 A.2d 1000 (casino regulations

examined under rational basis test), appeal dismissed, 454 U.S. 804, 70 L.

Ed. 2d 74, 102 S. Ct. 77 (1981), the countermeasures used by the casinos

and authorized by the CCC are rationally related to the legitimate state

interest in protecting the financial viability of the casino industry. See

N.J.S.A. 5:12-1(b)(12). Third, plaintiffs have no property interest in the

opportunity to gamble and thus have not had their substantive due process

rights violated. Therefore, we will dismiss plaintiffs' Sixth Count for

failure to state a claim upon which relief can be granted.

n18 The Sixth Count also alleges various state and federal statutory

claims against the John Does for sending offensive messages and alleged

threats over the Internet. These statutory claims are specious at best and

need not be addressed further.

F. Civil Conspiracy

Plaintiffs' Thirteenth Count n19 against the Casino Defendants claims

that all of the acts described in the complaint have been part of one

overarching conspiracy among the Casino Defendants. This overly broad claim

for civil conspiracy must fail. "The gravamen of an action in civil

conspiracy is not the conspiracy itself but the underlying wrong which,

absent the conspiracy, would give a right of action." Bd. of Educ. of

Asbury Park v. Hoek, 38 N.J. 213, 218, 183 A.2d 633 (1962); see Resolution

Trust Corp. v. Wilson, 851 F. Supp. 141, 147 (D.N.J. 1994). Because we have

dismissed all of the other claims of alleged wrongdoing and because the

only possible cooperation among the defendants took place through "sharing

of information as to who card-counters are [which] is not itself an illegal

conspiracy," Hyland, at 29, we will similarly dismiss their claim for civil

conspiracy.

n19 This Count is not numbered, but appears after the Twelfth Count

against the Casino Defendants.

G. Consumer Fraud Act Claim

Plaintiffs omitted in their amended complaint, a claim contained in

their original complaint, for violation of the New Jersey Consumer Fraud

Act. In their brief and in a letter to defendants, plaintiffs have asked

that they now be permitted leave to amend the complaint to re-include the

Consumer Fraud Act claim. Defendants have addressed the merits of any

Consumer Fraud Act claim in their motion to dismiss papers. We will treat

plaintiffs' request in their brief and defendants' apparent non-objection

as a stipulation for leave to amend the complaint. However, we must deny

leave for an amendment to re-include this claim because it is completely

without merit and it would be futile to amend the complaint to include a

meritless claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d

1410, 1434 (3d Cir. 1997) ("Among the grounds that could justify a denial

of leave to amend are undue delay, bad faith, dilatory motive, prejudice,

and futility") (emphasis added).

The New Jersey Supreme Court has recently held that the Consumer Fraud

Act will not apply to a heavily regulated industry when application of that

statute would create a "real possibility" of conflict between the

directives of the Consumer Fraud Act, as administered by the Division of

Consumer Affairs, and the directives of the regulatory schemes of other

administrative bodies. Lemelledo v. Beneficial Management Corp. of America,

150 N.J. 255, 268, 696 A.2d 546 (1997). The Act will not apply where "the

other source or sources of regulation deal specifically, concretely, and

pervasively with the particular activity, implying legislative intent not

to subject parities to multiple regulations that, as applied, will work at

cross- purposes." Id. at 270. Here, the Act evidences a clear legislative

intent to have the rules of casino gaming, and the advertising related

thereto, governed exclusively by the CCC. See N.J.S.A. 5:12-133(b); id.

5:12-70(o). To allow claims such as the plaintiffs' to proceed in federal

court under the Consumer Fraud Act would create conflicts with the CCC's

regulatory scheme. The regulation of the game of blackjack, including

shuffling-at-will and the advertisement of blackjack and its rules, is an

issue that is within the exclusive jurisdiction of the CCC and about which

the CCC has particularized expertise not possessed by courts and juries.

Furthermore, the goals of the Consumer Fraud Act and the Act are not

entirely consistent. The Consumer Fraud Act is concerned solely with the

protection of consumers. The Act, however, has dual purposes that must be

balanced -- the protection of gambling patrons and the protection of the

financial viability of the casino industry. Id. 5:12-1(b)(12). Finally,

even prior to Lemelledo, this Court suggested that the extensive CCC

regulation of the casinos precludes an action under the Consumer Fraud Act.

See Marcangelo, 847 F. Supp. at 1228. Thus, we find plaintiffs' claim under

the Consumer Fraud Act to be wholly without merit and we will not permit

leave to amend the complaint to re-include it.

The remainder of plaintiffs' claims are not based on alleged violations

of the CCC regulations and do not involve any federal claims. Because we

have dismissed all the claims over which we had original jurisdiction and

those state law claims implicating the same CCC regulations, we decline to

retain jurisdiction over the remaining claims. We briefly address each of

those claims below.

H. Public Accommodations Act

Plaintiffs have withdrawn their Fourth Count alleging a violation of

the New Jersey Public Accommodations Act, N.J.S.A. 10:1-2 et seq., and

therefore this claim will be dismissed.

I. Personal Injury Claims

Plaintiffs' Eighth and Ninth Counts assert personal injury claims on

behalf of one plaintiff, Bolick, against the Sands casino for an alleged

incident whereby Bolick was knocked out of his chair and then surrounded by

casino personnel. These claims, asserting specific incidents of alleged

mistreatment of one specific plaintiff by one specific casino, are clearly

separable from the essential card-counting countermeasure claims at the

heart of the rest of the complaint. We do not believe they form part of the

same "case or controversy" under Article III. See 28 U.S.C. § 1367(a);

Gibbs, 383 U.S. at 725-26. Even if they did, we would decline to exercise

supplemental jurisdiction because we have denied all claims over which the

Court has original jurisdiction. 28 U.S.C. § 1367(c)(3). Plaintiff Bolick's

Eighth and Ninth Counts will therefore be remanded to state court.

J. Privacy Claims

Plaintiffs' Tenth Count, brought on behalf of six non-card-counting

plaintiffs, asserts two privacy claims: n20 misappropriation of name or

likeness for purposes of commercial publicity, and publicity that places

plaintiffs in a false light before the public. In order to state a claim

for misappropriation of name and likeness, plaintiffs must allege that a

defendant has used his name or likeness "for the purpose of appropriating

to the defendant's benefit the commercial or other values associated with

the name or likeness . . . ." Bisbee v. John C. Conover Agency. Inc., 186

N.J. Super. 335, 342, 452 A.2d 689 (App. Div. 1982); see Tellado v.

Time-Life Books, Inc., 643 F. Supp. 904, 909 (D.N.J. 1986). Here,

defendants have not used plaintiffs' pictures for purposes of "taking

advantage of [their] reputation, prestige, or other value associated with

it," Bisbee, 186 N.J. Super. at 342, 452 A.2d 689, and therefore do not

appear to make out a misappropriation claim.

n20 Plaintiffs have withdrawn their claims for unreasonable intrusion

into private affairs and unreasonable publicity regarding private facts, so

we will dismiss these claims on that ground.

Plaintiffs' false light claim likewise does not appear to state a claim

upon which relief can be granted. Plaintiffs fail to establish that the

alleged use of their names and likenesses would be "highly offensive to a

reasonable person" and thereby have not stated a claim for false light.

Bisbee, 186 N.J. Super. at 342, 452 A.2d 689; Romaine v. Kallinger, 109

N.J. 282, 293, 537 A.2d 284 (1988); Tellado v. Time Life Books, Inc., 643

F. Supp. 904, 907 (1986). Being labeled a card-counter does not rise to the

level of being "highly offensive to a reasonable person."

However, because these privacy claims do not arise from a "common

nucleus of operative fact" with the CCC regulation claims upon which our

federal jurisdiction is based, Gibbs, 383 U.S. at 725, see 28 U.S.C.

1367(a), and because we decline supplemental jurisdiction over them

pursuant to 28 U.S.C. § 1367(c)(3), we will remand these claims to state

court.

K. Slander and Libel Claims

Plaintiffs Eleventh Count alleges claims for libel, libel per se,

slander, slander per se and injurious falsehoods on behalf of six specific

non-card-counting plaintiffs and generally on behalf of all plaintiffs.

Defendant Griffin and John Doe casino employees are named as defendants.

In order to state a claim for libel or slander, a complaint must allege the

defamatory words, the person who uttered them, and when, where, and to whom

they were published. See Zoneraich v. Overlook Hospital, 212 N.J. Super.

83, 101, 514 A.2d 53 (App. Div.), cert. denied, 107 N.J. 32, 526 A.2d 126

1986

260 (Law Div. 1981). The statute of limitations for libel and slander is

one year. N.J.S.A. 2A:14-3. Thus, a complaint must allege the publication

of each defamatory statement within one year of the filing of the

complaint. The statute of limitations in defamation actions is to be

strictly construed. Miele v. Rosenblum, 254 N.J. Super. 8, 12, 603 A.2d 43

(App. Div. 1991). In Miele, the defendant was charged with publishing two

articles on specified dates and thereafter "continued to publish facts

about plaintiff which placed plaintiff in a false light." Id. at 10. In

granting the defendant's motion for summary judgment, the Miele court held

that "in the case of a complaint charging defamation, the plaintiff must

plead facts sufficient to identify the defamatory words, their utterer and

the fact of their publication. A vague conclusory allegation is not

enough." Id. Because the plaintiff in Miele failed to specify any facts

with regard to the alleged subsequent defamatory publications, the

Appellate Division held that the statute of limitations period relevant to

the two specifically pled instances of defamation was applicable to the

entire complaint.

Here, plaintiffs' complaint alleges that unspecified statements implying

plaintiffs were card-counters involved in cheating activity were made by

Griffin and hundreds of unidentified John Does "from on or about 1989 up

until the present." Compl. at P 413-28. However, the complaint fails to

identify any specific statement made by any specific defendants about any

specific plaintiff within the one year limitations period. We feel these

allegations are simply too vague to demonstrate defamation within the

statute of limitations. Furthermore, we find it likely that these

allegations are too vague to set forth claims of defamation. Under New

Jersey law, defamation is defined as: (1) a defamatory statement of fact;

(2) concerning the plaintiff; (3) which was false; (4) which was

communicated to a person or persons other than the plaintiff; (5) with

actual knowledge that the statement was false or with reckless disregard of

the statement's truth or falsity or with negligence in failing to ascertain

the truth or falsity; and (6) which caused damage. Feggans v. Billington,

291 N.J. Super. 382, 391, 677 A.2d 772 (App. Div. 1996); see Petrocco v.

Dover General Hosp., 273 N.J. Super. 501, 521, 642 A.2d 1016 (App. Div.),

cert. denied, 138 N.J. 264, 649 A.2d 1284 (1994); Kotlikoff v. Community

News, 89 N.J. 62, 67, 444 A.2d 1086 (1982). Without any specific

allegations as to what was allegedly said about any specific plaintiff and

by whom at what time, plaintiffs have failed to meet the requirements for

setting forth a cause of action of defamation. n21 However, theoretically,

there may exist a plaintiff who would be able to set forth more

specifically the details necessary to demonstrate that he or she has been

defamed within the one-year statute of limitations. Therefore, although

there is no basis for us to retain supplemental jurisdiction over this

unrelated state claim, 28 U.S.C. § 1367(a) or for us to not to decline

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3), we will

remand this claim to state court under the belief that there might exist a

plaintiff who deserves an opportunity to amend the claim to properly allege

cognizable defamation.

n21 Plaintiffs' failure to meet the statute of limitations and pleading

requirements for their defamation claim demonstrates precisely the problem

with a complaint that lumps sixty plaintiffs, over forty-one named

defendants. hundreds of John Doe defendants and incredibly diverse causes

of action together in one long and confusing document.

L. Intentional Infliction of Emotional Distress

Plaintiffs have withdrawn their Twelfth Count alleging intentional

infliction of emotional distress and therefore this claim will be

dismissed.

M. Claims Against Lawyer Defendants

Plaintiffs have alleged various claims against nine lawyer and law firm

defendants arising out of alleged malpractice and negligence associated

with advice and/or representation offered at different points in time by

the different law firms with respect to the claims alleged in the current

complaint. The Counts against these Lawyer Defendants include various state

law claims of legal malpractice, including breach of fiduciary duty,

negligence, breach of express, implied or oral contract, breach of the

covenant of good faith and fair dealing, misrepresentation and negligent

supervision. We find these claims, as stated, to be vague and confusing.

For example, it is difficult to determine which firms represented which

plaintiffs during which time period. It is also impossible to discern

whether any of the firms failed to advise plaintiffs as to the proper

statute of limitations as most of plaintiffs' underlying claims are murky

conglomerations of various statutory, tort and contract actions.

Furthermore, the viability of claims alleging incorrect legal advice with

respect to the plaintiffs' essential CCC regulation claims may ultimately

depend on the New Jersey Supreme Court's decision in Campione. Although we

could properly dismiss these claims on these grounds alone, we feel the

better course is to remand them to state court for further elucidation as

to the alleged malpractice, particularly in light of the soon expected

Campione decision. Because they arise from a completely different, though

perhaps tangentially-related, set of facts from the underlying CCC

regulation claims, see Gibbs, 383 U.S. at 725-26; 28 U.S.C. § 1367(a), and

because we have dismissed all federal claims, we will decline supplemental

jurisdiction over any of the state law claims against the Lawyer

Defendants, 28 U.S.C. § 1367(c)(3), and remand these claims to state court.

III. CONCLUSION

Plaintiffs' beef is with the countermeasures taken by casinos to

frustrate card-counting blackjack players. The only real issue in this case

is whether the Act authorizes the CCC to permit casinos to engage in this

type of activity or to treat card-counters differently from other blackjack

players. Plaintiffs' complaint is a verbose, confused, overreaching and

immature work product, and its allegations of cheating, RICO, consumer

fraud, constitutional violations, defamation and civil conspiracy confuse

rather than elucidate the essential nature of the dispute.

We hold that the clearly expressed intention of the New Jersey

Legislature to ensure the financial viability of the casino industry

provides ample justification for the CCC regulations and practices

permitting casinos, for example, to (1) "shuffle-at-will," (2) limit a

player to playing and wagering on one hand at a table, (3) selectively

limit the betting limit for a given player at a table, (4) count cards

themselves to determine when the cards in the shoe should be reshuffled and

(5) identify card counters and share this information with other casinos.

Even were we to conclude that the CCC has acted improperly or illegally

in adopting these regulations or permitting these practices, this court

would not be a proper forum in which to recover damages or seek equitable

relief. The Appellate Division of the New Jersey Superior Court has

recently held that the CCC has exclusive jurisdiction over claims that a

casino has violated the rules of play and has clearly stated that "there is

no private cause of action against a casino for its alleged violation of

[CCC] regulations governing the manner in which games are played."

Campione, 302 N.J. Super. at 118, 694 A.2d 1048. We had earlier agreed with

this position in a footnote appearing in Tose v. Greate Bay Hotel Casino,

819 F. Supp. 1312, 1316 n.8 (D.N.J 1993), aff'd, 34 F.3d 1227 (3d Cir.

1994). Our analysis was subsequently approved by the Third Circuit in

Hakimoglu v. Trump Taj Mahal Associates, 70 F.3d 291, 293-94 (3d Cir.

1995).

We further hold that when a casino conducts gaming activity either (1)

in accordance with regulations adopted by the CCC or (2) openly in a manner

not inconsistent with those regulations there can be no liability at common

law or under the Act to a patron for gambling losses or lost winning

opportunities, even if the New Jersey Supreme Court should ultimately

determine that the CCC acted improperly in adopting the regulations at

issue or in not stopping the casino from operating the game in the manner

challenged. The legislative judgment giving the CCC the right to regulate

the minutiae of gambling carries with it the right of the casinos to rely

on the CCC when it exercises that judgment. n22

n22 We express no opinion as to whether (i) the CCC can grant monetary

damages or awards to individual casino patrons or (ii) the Act or the

common law provides or implies a private right of action in the courts in

favor of a patron who suffers losses because a casino clandestinely

conducts gaming activity contrary to or inconsistent with the CCC

regulations, e.g., using "loaded" dice or fixing a roulette wheel.

For the foregoing reasons, we will dismiss with prejudice pursuant to Fed.

R. Civ. P. 12(b)(6) all of the claims relating to the alleged violations of

the CCC regulations. (First, Second, Third, Fifth, Sixth, Seventh, and

Thirteenth Counts). Because the Court declines to exercise supplemental

jurisdiction, the remainder of the claims shall be remanded to state court.

28 U.S.C. § 1367(a); 28 U.S.C. § 1367(c)(3). (Eighth, Ninth, Tenth,

Eleventh, and Lawyer Defendant claims). Plaintiffs have agreed to the

dismissal of the Fourth and Twelfth Counts, and we are denying permission

to reinstate the Consumer Fraud Act count. An appropriate order will be

issued accordingly.

Date: MAY 1, 1998

JOSEPH E. IRENAS, U.S.D.J.

Last Update: 09/17/98