Opinion
EV-01-75-C-T/H
April 5, 2003.
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
David Williams, by his own admission, is a gambling addict. His compulsive desire for the thrill of chance and his fantasy hope of a disproportionate reward resulted in his loss of every penny he saved from his former career as an auditor for the Indiana Department of Revenue, the accumulation of a staggering amount of debt and untold personal problems.
This case documents Williams' long and embarrassing spiral downward through the circles of Hell that an addiction leads. Whether this case is viewed as a claim for just compensation, as the Plaintiff contends, or an effort to hit the jackpot in litigation that he couldn't achieve on the river boat casino, as the Defendants contend, through this lawsuit and a plethora of federal and state law theories, Williams seeks a determination that the gambling industry owed him a duty to protect him from himself. Despite his counsel's creative efforts, and regardless of Williams' sympathetic plight, neither federal nor Indiana law provides him any refuge or reward.
This case is before the court on the Defendants' motion for summary judgment, motion to strike, and objection to the Plaintiff's subpoena for inspection of the Defendants' surveillance room premises. The Plaintiff, David N. Williams, filed a complaint against Aztar Indiana Gaming Corporation and Aztar Indiana Gaming Company, LLC (collectively "Aztar") alleging a variety of federal and state claims all based on its failure to evict him from its riverboat gaming facility even though it knew he was a compulsive gambler.
Having reviewed the arguments and submissions of the parties, the court rules as follows.
As the issues in this case are adequately presented by the briefs and factual submissions of counsel, the Plaintiff's Request for Oral Argument is DENIED.
I. Background Facts
The facts summarized in this section are undisputed unless otherwise noted. The court observes that it has omitted much of the Plaintiff's proffered evidence with respect to Aztar's internal procedures, as that information is not material to the issues raised in this case.
At all times relevant to this lawsuit, Aztar maintained a "self-ejection" program pursuant to state regulations whereby a person may request that his or her name be placed on an eviction list. Although the Plaintiff was aware of the availability of this procedure, he did not seek to avail himself of it. (SMF at 8.)
It does appear that the Plaintiff's status was marked "self-ejected" in Aztar's computer system as a result of his eventual expulsion from the casino (Lavore Dep. at 64, 69), however, the Plaintiff admits that the he never personally requested that Aztar bar him from the casino. (Additional Material Fact ("AMF") at 45.)
In March 1998, Ms. Tempel wrote a letter to Aztar regarding the Plaintiff's apparently compulsive gambling and suicidal ideations. (SMF at 910.) Upon receipt of that letter, members of Aztar's Responsible Gaming Committee approached the Plaintiff in the casino in regards to his gambling practices. Later that night, the Plaintiff checked into Mulberry Center, a local mental health facility, where he was subsequently committed by court order on the basis of a suicide letter he had written presented by Ms. Tempel to the facility. On March 27, 1998, Aztar sent the Plaintiff a Cease Admissions letter stating that "we must insist that prior to gaming with us, at any time in the future, you must present us with medical/psychological information which demonstrates that your patronage of our facility poses no threat to your safety and/or well-being." (SMF at 13.) At that point the Plaintiff had lost approximately $160,000 in the casino. (SMF at 19; Williams Dep. at 90.)
The Plaintiff, receiving outpatient treatment, successfully avoided the Aztar Casino for almost a full year. Then, in February 1999, he relapsed in the midst of a group counseling session being conducted to help him (and others) in dealing with their addictions. "I remember sitting there, and right in the middle of the meeting, I — I got what I believe was a — pretty much a — just an uncontrollable urge to gamble[.]" (Williams Dep. at 59.) The Plaintiff at first returned to Aztar without his "Fun Card," a card which identifies the holder and tracks that person's betting history on the machines in the casino's computer system. (Keenan Dep. at 33; AMF at 44.) Although the Plaintiff did not otherwise identify himself, submit a request for reinstatement, or present medical proof as to his fitness to gamble, he gained admittance to Aztar without incident. After four or five visits, he started using his Fun Card once again. As a result, in mid-1999 he began to receive a series of promotional mailings from Aztar. Despite his ban from the casino, at no time was he approached by Aztar personnel until August 2000, at which point he was informed by a security guard that he was once again barred from the premises. (SMF at 18.)
The Plaintiff concedes that his return to the casino was not induced by any action on the part of Aztar. (AMF at 46.)
Aztar, on the basis of the Plaintiff's deposition testimony, asserts that the Plaintiff's use of the Fun Card triggered the promotional mailings. (SMF at 15; Williams Dep. at 68.) The Plaintiff counters that the mailings were not "generated automatically," as an Aztar employee would have had to alter the Plaintiff's status in the computer system from inactive to active. Based on the testimony of Aztar employees, it does seem that a "stop code" was placed on the Plaintiff's account to prevent further mailing. (Lavore Dep. at 23, 150-51.) Although there is no direct evidence on the matter, it is a fair inference, which the court accepts for the purposes of this motion, that an Aztar employee would have had to remove the stop code manually from the Plaintiff's account in order to restart the promotional mailings.
The Plaintiff estimates that he lost somewhere between $15,000 and $20,000 subsequent to his return to Aztar and prior to his second ban from the casino. (Williams Dep. at 90).
II. Summary Judgment
The court must grant summary judgment if there is "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The standard for summary judgment is the same as that of a directed verdict, that is, summary judgment is warranted where no rational jury or other trier of fact could render a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Colosi v. Electri-Flex Co., 965 F.2d 500, 504 (7th Cir. 1992). A "metaphysical doubt" regarding the existence of a material fact will not defeat a motion for summary judgment, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 474 U.S. 574, 587 (1986). Moreover, the moving party need not positively disprove the nonmovant's case, but may prevail by "pointing out to the district court" a lack of supporting evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court will view the facts and draw all reasonable inferences in favor of the non-movant, here the Plaintiff. Smith v. Ball State Univ., 295 F.3d 763, 767 (7th Cir. 2002).
III. Discussion A. RICO claim
The Plaintiff has alleged a claim under the RICO statute, 18 U.S.C. § 1961-1968, designed as a criminal statute, see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498 (1985), but which contains a provision allowing for civil suit, 18 U.S.C. § 1964(c). That statute requires, among other things, the plaintiff establish as an essential element of the offense a "pattern of racketeering activity." 18 U.S.C. § 1962(a)-(d); see also Corley v. Rosewood Care Center, Inc., 142 F.3d 1041, 1048 (7th Cir. 1998). The RICO statute defines a "pattern" as at least two acts of racketeering activity within a ten-year period. 18 U.S.C. § 1961(5). However, the concept of a pattern has been expanded on by the Supreme Court in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237 (1989). Under the test set forth in H.J. Inc., acts alleged to form a pattern must be "related" and the plaintiff must show "that the predicates themselves amount to, or that they otherwise constitute a threat of, continuing racketeering activity." Id. at 240. In "closed period" cases, such as here, where there has been no showing of a threat of future criminal activity, the plaintiff must offer proof of "a series of related predicates extending over a substantial period of time[.]" Id. at 242. Conversely, "[p]redicate acts extending over a few weeks or months do no not satisfy this requirement." Id. While the predicate acts in this suit — the series of mailings alleged to be part of a scheme to defraud the Plaintiff — are sufficiently related, they do not possess the requisite continuity to constitute a pattern. The three mailings in question all occurred between September 3, 1999 and July 18, 2000 — a ten month period. That is hardly the kind of long-term criminal conduct with which Congress was concerned when it passed the statute. Id. at 242; see also Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 780 (7th Cir. 1994) (racketeering predicates spanning nine month period not satisfy closed-ended continuity requirement); Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1024 (7th Cir. 1992) (same).
But even had the predicate acts exhibited the requisite continuity, the Plaintiff's RICO claim would still fail for lack of evidence of "racketeering activity" sufficient to create a triable issue of fact. "Racketeering activity" is defined under the statute to include any act indictable under the federal and state provisions listed in section 1961(1), including 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 1955 (prohibition of illegal gambling businesses). See also Emery v. Am. Gen. Fin., Inc., 71 F.3d 1343 (7th Cir. 1995).
Mail fraud, one of the predicate offenses alleged here, in turn requires proof of a scheme to defraud and use of the mails in furtherance of that scheme. McDonald v. Schenker, 18 F.3d 491, 494 (7th Cir. 1994). A scheme to defraud involves as a necessary element the making of material misrepresentations, Neder v. United States, 527 U.S. 1, 25 (1999), and that is where the Plaintiff's RICO claim founders. The Plaintiff points to four excerpts from Aztar's promotional mailings as instances of such misrepresentations, all intended to lure the Plaintiff back to the slot machines. In one, an Aztar newsletter exclaimed that "Players Win!," whereas the Plaintiff managed to wring from a company representative the concession that some players also lose. (Lavore Dep. at 134.) In another, Aztar addressed the Plaintiff as "our most loyal guest," even though that was not literally true. (Lavore Dep. at 139.) The third mailing exhorted the Plaintiff to "check out the Hot Slots 100 posted in the Fun Center to find out where the big payouts are" — whereas past payouts on any machine are no indication of future rewards — and the fourth informed the Plaintiff that the arrival of new machines would give him even more chances to win — when in fact the number of machines does not improve a person's odds of winning. It is doubtful whether the last statement is even false — it says "more," not "greater" or "better" — but in all cases the alleged misrepresentations, even if false, are plainly non-material sales puffery. See Assocs. in Adolescent Psychiatry, S.C. v. Home Life Ins. Co., 941 F.2d 561, 570 (7th Cir. 1991) ("Fraud occurs only when a person of ordinary prudence and comprehension would rely on the misrepresentations. . . . Statements that a certain investment will earn the 'highest' return are puffery."); cf. United States v. Coffman, 94 F.3d 330, 335 (7th Cir. 1996), cert. denied, 520 U.S. 1165 (1997) ("The cases carve a safe harbor for the type of misrepresentation that, being so commonplace as to be 'normal,' is not likely to fool anyone.") (finding that defendant purporting to sell several million dollars worth of stock could not avail himself of the safe harbor based solely on the implausibility of his deception). As run-of-the-mill sales puffery which would not be taken literally by a person of ordinary prudence and comprehension — there is no indication the Plaintiff himself did — the representations contained in Aztar's promotional mailings do not give rise to mail fraud.
Although judging from his gambling record, he could not be far behind.
Dicta in Matter of EDC, Inc, 930 F.2d 1275, 1279 (7th Cir. 1991) suggest that the Seventh Circuit considers reasonable reliance to be a necessary element of a civil RICO claim predicated on mail fraud, however, that is not the view taken by the majority of circuits to have expressly considered the issue. See Sys. Mgmt., Inc v. Loiselle, 303 F.3d 100, 104 n. 3 (1st Cir. 2002) (collecting cases) (following majority view that reliance not required to establish RICO civil liability). As the court finds that the promotional mailings did not contain material misrepresentations, it has no occasion to address the question of reliance or proximate cause.
The Plaintiff fares no better with the illegal gambling offense. Indiana Code section 4-33-9-15 clearly allows for the extension of credit by the owner of riverboat gaming facilities, and to the extent of any conflict with Indiana Code section 34-16-1-1 (declaring void any contract granting credit for the purposes of gambling), it supersedes that provision with respect to riverboat gaming facilities as a later, more specific statute. See Ross v. State, 729 N.E.2d 113, 116 (Ind. 2000) (as between general and more specific statutes treating same subject matter, more specific statute applies); State ex rel. Town of Lowell v. Meredith, 215 N.E.2d 183, 184 (Ind. 1966) (later expression of legislature controls). Since the Plaintiff has not managed to create an issue of material fact as to any of the predicate offenses relied upon in his RICO claim, that claim fails as a matter of law.
The court also notes that contrary to the Plaintiff's assertions, Indiana Code section 34-16-1-1 is not a criminal provision, and thus any violation of it would not constitute a predicate offense under RICO.
B. Maritime Claim
In his Brief in Opposition to Defendants' Motion For Summary Judgment, the Plaintiff added a maritime tort claim which was not contained in his Third Amended Complaint. Aztar has moved to strike that claim as untimely. It is true that "[a] plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment." Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). See also Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002) (refusing to consider Title VII retaliation claim first raised in opposition to summary judgment brief) (citing Shanahan, 82 F.3d at 781). However, if the Plaintiff was not required to plead the maritime tort theory in the first instance, its absence from the complaint cannot act as a bar to raising it at a later stage — unless of course its assertion at that point would violate a case management order. Under the federal notice pleading regime, it appears the Plaintiff was under no obligation to plead his maritime tort theory. See, e.g., Shah v. Inter-continental Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002) ("The plaintiff is not required to plead facts or legal theories or cases or statutes, but merely to describe his claim simply and briefly."); Beanstalk Group, Inc. v. AM Gen. Corp., 283 F.3d 856, 863 (7th Cir. 2002) (same); Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (same). While Federal Rule of Civil Procedure 8(a)(1) mandates that a complaint contain "a short and plain statement of the grounds upon which the court's jurisdiction depends," the Seventh Circuit has determined that "it is not essential that a complainant set forth the statutory basis for the court's jurisdiction in order for the court to assume jurisdiction, if the facts alleged provide a basis for the assumption of jurisdiction." Jensen v. State Bd. of Tax Comm'rs of State of Ind., 763 F.2d 272, 278 (7th Cir. 1985) (citing Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir. 1978)).
In the instant case the Plaintiff has alleged facts in his Third Amended Complaint which could form the basis of a maritime tort claim — allegedly tortious conduct on a riverboat casino. As far as the potential for unfair surprise on the part of Aztar, the Court in Shah noted that a defendant "unsure of what statute, state or federal, or common law principle the conduct alleged in the complaint might violate" could "smoke out the plaintiff's theory of the case by serving a contention interrogatory on him." Shah, 314 F.3d at 282. Here the case management plan did in fact require each party to file final contentions, which in the case of the Plaintiff included a maritime claim. (See Pl.'s Contentions ¶ 37.) For these reasons, the Defendants' Motion to Strike the federal maritime claim will be DENIED.
Quite apart from any deficiency in the pleading, the court must still consider whether it may assume jurisdiction over the Plaintiff's maritime claim. See Hay v. Ind. State Bd. of Tax Comm'rs, 312 F.3d 876, 879 (7th Cir. 2002) (federal courts have responsibility to police subject matter jurisdiction). Federal courts may hear maritime cases under 28 U.S.C. § 1331(1) (general maritime jurisdiction). Although traditionally the sole test for maritime or admiralty jurisdiction was whether the tort occurred on navigable waters — known as the locality test, see The Daniel Ball, 77 U.S. 557 (1870) — that test has been supplemented over time by a combination of statute and case law. See Grubart v. Great Lakes Dredge Dock Co., 513 U.S. 527, 532-34 (1995). Under the current version of the test for admiralty jurisdiction, a party invoking such jurisdiction must satisfy "conditions of location and of connection with maritime activity." Id. at 534; see also Weaver, 255 F.3d at 382.
As noted by Weaver v. Hollywood Casino-Aurora, 255 F.3d 379, 381 n. 2 (7th Cir. 2001) (citing Grant Gilmore and Charles L. Black, Jr., The Law of Admiralty § 1-1 (2d ed., 1975)), in modern legal usage there is essentially no difference between the terms "admiralty" and "maritime," and the two are employed interchangeably in this Entry.
A court may accept good-faith allegations of jurisdictional facts unless challenged by opposing evidence, see Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 (7th Cir. 1995), and in this case the Plaintiff has introduced sufficient facts to indicate that the locality part of the test for maritime jurisdiction is met. The Aztar Casino is located on the Ohio river, a major commercial waterway, and at the time of the Plaintiff's gambling activities the riverboat was required to leave the dock during gaming operations except under a few narrow conditions relating to weather and maintenance. See Hoosier Envtl. Council, Inc. v. U.S. Army Corps of Eng'rs, 105 F. Supp.2d 953, 962-63 (S.D.Ind. 2000). As there is no evidence in the record that the riverboat casino was located in an enclosed section of the river, see Svendsen v. Hollywood Casino-Aurora, Inc., No. 01C8408, 2002 WL 1424565, at *3 (N.D.Ill. July 1, 2002) (riverboat casino failed locality test because not run in navigable part of river), the court finds that the injury occurred on navigable waters, and the locality requirement is satisfied.
The Supreme Court has described the connection test as follows:
A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to tradition maritime activity.
Grubart, 513 U.S. at 534 (citing Sisson v. Ruby, 497 U.S. 358 (1990)) (internal quotation marks omitted). The first task is to describe the incident at an "intermediate level of generality." See, e.g., Grubart, 497 U.S. at 539 (describing damage done by a barge crane to an underwater freight tunnel as "damage by a vessel in navigable waters to an underwater structure"); Sisson, 497 U.S. at 363 (characterizing a fire caused by a defective washer/dryer on a pleasure boat docked at a marina as a "fire on a vessel docked at a marina on navigable waters"); Weaver, 255 F.3d at 386 (describing injury to a riverboat casino employee from a fallen chest of drawers as "injury on board a vessel on navigable waters"); Bay Casino, LLC. v. M/V Royal Empress, 199 F.R.D. 464, 466 (E.D.N.Y. 1999) (characterizing incident wherein minor became inebriated during gambling cruise and subsequently caused car accident as "alcohol-related injury to a third party by a passenger on the gambling cruise.") Clearly, there is some play involved in selecting the proper level of generality at which to describe the incident. See Delta Country Ventures, Inc. v. Magana, 986 F.2d 1260, 1264 (9th Cir. 1993) (Kozinski, J., dissenting) (disagreeing with majority's description of houseboat guest injuring himself by diving as "aquatic recreation off a pleasure boat" as too specific, but admitting that "disputes about the appropriate level of generality always carry with them a certain degree of arbitrariness.") And the problems of characterization are multiplied in this suit because of the unusual nature of the tort alleged — failure to evict a compulsive gambler — where the claimed injuries did not result from a single incident or accident.
Nonetheless, the court believes that the Plaintiff's proposed generalization — "potentially negligent activities affecting passengers aboard the vessel" — is too broad. In the court's view, any characterization of the negligence responsible for the Plaintiff's injuries must include a reference to gambling operations in order to remain at the "intermediate" level of generality. See Grubart, 513 U.S. at 534 ("To speak of the incident [the fire on a docked pleasure boat in Sisson] as 'fire' would have been too general to differentiate cases.") Likewise here, to describe the harm to the Plaintiff as the consequence of "potentially negligent activities affecting passengers" would fail to distinguish it from any other type of injury to a passenger. Furthermore, the Plaintiff's reliance on Young v. Players Lake Charles, LLC, 47 F. Supp.2d 832 (S.D.Tex. 1999), is misplaced, as Young attempted to characterize the situation where a passenger on board a short-term riverboat casino cruise was served excessive amounts of alcohol and later caused a car accident. The Young Court envisioned a wide variety of accidents that could possibly result from the provision of alcohol under these circumstances, see id. at 835, and accordingly adopted a broad generalization of the incident. Injuries that might arise solely from legalized gaming, if any, are simply not in the same class as alcohol-related negligence. Instead, the court is of the opinion that the general features of the type of incident involved here are appropriately described as injuries stemming from a passenger's gambling activities on a vessel on navigable waters. As such, they cannot be said to have a potentially disruptive impact on maritime commerce. This case is thus quite different from a physical injury to a crew-member or employee on a riverboat casino, see Weaver, 255 F.3d at 386, and the court cannot conceive how the type of negligence alleged here could have any negative impact on ships engaged in commerce.
Neither can it be maintained that the general character of the activities giving rise to the incident — Aztar's gambling operations — bears a substantial relation to traditional maritime activity. See Davis v. Players Lake Charles Riverboat, Inc., 74 F. Supp.2d 675, 676 (W.D.La. 1999) ("In this case, the activity which gave rise to the plaintiff's injury, [riverboat casino] gaming, is not substantially related to a traditional maritime activity.") Once again, Weaver is distinguishable because there the potential tort concerned not the activity of gambling per se but the handling of heavy on-board equipment used in the defendant's gambling operations, see Weaver, 255 F.3d at 381; the fact that it was a gambling ship was incidental to the nature of the injury; a similar incident could have occurred on any commercial ship with heavy equipment engaged "in the transport of passengers for profit," id. at 386. That is not so here. The activity of gambling is essentially related to the Plaintiff's claimed injuries, and it does not bear a substantial relationship to traditional maritime activity. As in Greenwell v. Aztar Indiana Gaming Corp., 268 F.3d 486, 492 (7th Cir. 2001), cert. denied, 122 S.Ct. 1290 (2002), the dispute in this case lacks sufficient "maritime flavor to warrant trundling out a body of law designed to regulate maritime accidents." As the nexus test is not satisfied, this court lacks jurisdiction over the Plaintiff's maritime claim.
The Plaintiff's motion for leave to amend its complaint in order to add the maritime claim is therefore DENIED as moot, as further factual specification of the claim would not alter the legal principles on which the denial of jurisdiction is based.
C. State Law Claims
Although the Plaintiff's state law claims hinge on an argument for an expansion of liability which has not yet been considered by Indiana courts, these claims are not so novel or unprecedented as to deter the court from exercising supplemental jurisdiction under 18 U.S.C. § 1367. As the court has already invested substantial judicial resources in this case, and believes the outcome is clear, it does not see the use of sending the litigants to state court for further proceedings. See Grove v. Eli Lilly Co., 193 F.3d 496, 501 (7th Cir. 1999) (district court did not abuse discretion in retaining jurisdiction over supplemental state claims for reasons of judicial economy); Sullivan v. Conway, 157 F.3d 1092, 1095 (7th Cir. 1998) (federal-state comity not furthered by sending "doomed litigation. . . . back to the state court to be dismissed there.")The Plaintiff argues that gaming enterprises owe a duty of care to patrons identified as compulsive gamblers to prevent them from returning to the casino. Indiana law is silent on the matter. However, a recent Seventh Circuit opinion, Merrill v. Trump Indiana, Inc., No. 02-2523, 2003 WL 482374, at *1 (7th Cir. Feb. 26, 2003), addressed this precise subject and predicted that the Indiana Supreme Court would refrain from fashioning any such duty. As there has been no intervening case or statute in the short time since Merrill was decided that would modify the relevant state law, this court is bound by that decision. "If an issue has been addressed by the Circuit Court of Appeals and it has made a determination as to how the state's supreme court would decide an issue, that determination is binding on the district courts within that circuit, absent a subsequent change in state law." Taylor v. Canteen Corp., 789 F. Supp. 279, 282 (C.D.Ill. 1992), rev'd in part on other grounds, 69 F.3d 773 (7th Cir. 1995).
The Plaintiff does not pin his cause on a duty derived from state statutes or regulations concerning gambling in Indiana, and with good reason, as the plaintiff in Merrill had a better claim to such a duty — unlike Mr. Williams, he had availed himself of the casino's self-ejectment procedure and was let back in — and yet even then the Court held that the legislature did not intend to create a private cause of action against offending casinos. Merrill, 2003 WL 482374, at *3. Here, the Plaintiff cannot identify a statutory or regulatory infraction on the part of Aztar to justify such an implied right of action. Instead, he argues for the creation of a tort duty under the common law. That same argument was made and rejected in Merrill. As the Merrill Court noted, in Indiana, negligence liability depends on a duty of care extending to the plaintiff, id. at *2 (citing Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991)), the existence of which is a question of law, id. (citing Benton v. City of Oakland, 721 N.E.2d 224, 232 (Ind. 1999)). The Court reasoned that since Indiana did not make a tavern proprietor liable for injuries sustained by a patron who was served alcohol and later drove while intoxicated, it would confer no greater protection on gamblers. "Indiana law does not protect a drunk driver from the effects of his own conduct, and we assume the Indiana Supreme Court would take a similar approach with compulsive gamblers." Id. at *3. As mentioned above, that holding is controlling with respect to the same issue raised in this case.
It is thus likely that had the court exercised jurisdiction over the Plaintiff's maritime tort claim, it would have met with the same fate as his state tort claim, as both are predicated on the same facts, and in the absence of applicable maritime law a court may borrow state law. See Continental Cas. Co. v. Anderson Excavating Wrecking Co., 189 F.3d 512, 519 (7th Cir. 1999).
Nor can the Plaintiff escape this conclusion by arguing for a "gratuitous" duty of care undertaken by Aztar in the form of its Cease Admissions letter — essentially a promissory estoppel argument. See Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001). Such a claim requires, among other elements, "(1) a promise by the promissor; (2) made with the expectation that the promisee will rely thereon; (3) which induces reasonable reliance by the promisee." Id. at 52. Even if Aztar's communication to the Plaintiff could be construed as a "promise" to deny him entrance to the casino, Aztar could not have expected the Plaintiff to rely on its ban to frustrate his own self-initiated attempts to return to the slot machines; nor would such reliance by the Plaintiff have been reasonable as a matter of law. Aztar neither assumed by its actions nor otherwise owed to the Plaintiff a duty to protect him from his own compulsive behavior.
In addition to undermining the Plaintiff's claim for tortious breach of duty, the absence of a recognized duty under Indiana law to expel casino patrons identified as addicted gamblers is fatal to the Plaintiff's premises liability count, as that action also depends on the existence of a duty of care, see Ellis v. Luxbury Hotels, Inc., 716 N.E.2d 359, 360 (Ind. 1999).
The Plaintiff's remaining state law claims rest on similar notions of a casino's obligation to close its doors to compulsive gamblers, and can be resolved without extensive discussion.
Liability for intentional infliction of emotional distress will lie where the defendant has "(1) engaged in extreme and outrageous conduct that (2) intentionally or recklessly (3) caused (4) severe emotional distress." Munsell v. Hambright, 776 N.E.2d 1272, 1280 (Ind.Ct.App. 2002) (citations omitted). "Conduct is extreme and outrageous only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind.Ct.App. 1996) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)); see also Branham v. Celadon Trucking Servs., 744 N.E.2d 514, 523 (Ind.Ct.App. 2001). The record does not reveal any conduct on the part of Aztar that would approximate that description. The most Aztar can be charged with is a lack of vigilance in policing its eviction list and ensuring promotional mailings are not sent to banned patrons. But even then, the Plaintiff has submitted no evidence from which to infer that Aztar's failure to uphold its ban was motivated by a malicious desire to cause him harm. The absence of extreme and outrageous conduct and an intent to inflict severe emotional distress critically undermines the Plaintiff's claim on this count.
The Plaintiff's fraud count is equally deficient. Fraud under Indiana law requires a plaintiff show "1) a material misrepresentation of past or existing fact, 2) made with knowledge or reckless disregard of its falsity, 3) which caused reliance to the detriment of the person relying on it." Biberstine v. New York Blower Co., 625 N.E.2d 1308, 1315 (Ind.Ct.App. 1994) (citation omitted). Once again, the Plaintiff relies on the purported promise contained in the Cease Admissions letter, to no avail, however, because Aztar's letter relaying the Plaintiff's ban from the casino was, at best, an expression of existing intent that it later failed to honor. As such, it cannot form the basis of a fraud claim. "The law in this jurisdiction is well-settled that actual fraud may not be based on representations regarding future conduct, or on broken promises, unfulfilled predictions or statements of existing intent which are not executed." Id. at 1315 (citations omitted).
The Indiana RICO statute is modeled after federal RICO, see Yoder Grain, Inc. v. Antalis, 722 N.E.2d 840, 845 (Ind.Ct.App. 2000), and also requires proof of "conduct of an enterprise through a pattern of racketeering activity," id. at 845. As with federal RICO, a Plaintiff must satisfy the continuity plus relationship requirement with respect to the predicate acts alleged. See Ind. Code § 35-45-6-1; Yoder Grain, 722 N.E.2d at 847. The Plaintiff's Indiana RICO claim rests on acts which occurred within a short time period and, therefore, it is doubtful whether he has met the closed-ended continuity requirement. Ultimately, however, the state RICO claim is doomed because the predicate acts alleged, purported violations of Indiana Code section 35-45-2-1 (intimidation) and 35-43-4-2 (theft) are wholly unsupported by competent evidence. As to the former, the court does not see how any statement in the Cease Admissions letter could be construed as a threat to the Plaintiff. (See Def.'s Ex. 4.) As to the latter, the Plaintiff advances the idea that Aztar committed theft by exerting unauthorized control over the money wagered by the Plaintiff under the sway of his gambling addiction. The Plaintiff cites no authority to support this idiosyncratic use of the Indiana theft statute, and the court is unaware of any case which even hints that the concept of theft would apply to these circumstances. That is not surprising, as a casino which opens its doors to compulsive gamblers can no more be considered a thief than a store which sells cigarettes to addicted smokers.
Finally, the Plaintiff contends that Aztar's Cease Admissions letter amounts to an express or implied contract between himself and Aztar in which Aztar promised to block his access to the casino. This claim stands in the face of basic contract principles. Even assuming Aztar's notice of the Plaintiff's banishment from the casino constituted a promise to the Plaintiff, he did not offer any consideration in exchange for that promise, and thus it is unenforceable. See, e.g., Puetz v. Cozmas, 147 N.E.2d 227, 231 (Ind. 1958) ("The consideration is an essential element to every contract."); Warner v. Estate of Allen, 776 N.E.2d 422, 428 (Ind.Ct.App. 2002) (same) (citation omitted); Burdsall v. City of Elwood, 454 N.E.2d 434, 436 (Ind.Ct.App. 1983) ("In order to have a legally binding contract, there must be bargained for exchange."). To the extent that the Plaintiff argues consideration was not necessary to impose liability on Aztar, he invokes the promissory estoppel claim disposed earlier.
IV. Conclusion
In conclusion, the Defendants' motion for summary judgment is GRANTED. The Defendants' Objection to Plaintiff's Subpoena for the Inspection of Surveillance Room Premises is OVERRULED as moot.
ALL OF WHICH IS ORDERED this 5th day of April 2003.