Doug Grant VS Greate Bay Casino

DOUG GRANT, INC., et al., Plaintiffs, v. GREATE BAY CASINO
CORP., et al., Defendants.
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.
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.
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.
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
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.
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;
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
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
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
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
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.
(c) A casino licensee shall provide notice of the minimum and maximum
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
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.
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
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
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
(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
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
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
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
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
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.
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.
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

Last Update: 09/17/98