RENEE MARIE BUMB, District Judge.
This matter comes before the Court upon the defendants' motions to dismiss plaintiff's Amended Complaint for failure to state a claim upon which relief may be granted, for insufficient service of process, and for failure to plead a short and plain statement of the claims showing entitlement to relief. The Defendants are Bally's Park Place, Atlantic City Showboat, Harrah's Entertainment, Inc., Colony Capital, LLC, Sun International Hotels Limited, Trump Plaza Associates, LLC, Trump Taj Mahal Associates, LLC, Resorts International Hotel, Inc., Bob Benz, and Elizabeth D'Andrea, (the "Defendants"), all casinos, casino owners, and/or casino employees. Plaintiff Arelia Margarita Taveras ("Plaintiff") patronized Defendant-casinos during a 14-month period in 2004 and 2005.
Plaintiff alleges the Defendants facilitated Plaintiff's gambling addiction and induced her to gamble away money belonging to her and others, causing her loss of money, emotional injury, and damage to reputation. Plaintiff, who is a former attorney, also alleges the Defendants' conduct caused her disbarment. Specifically, Plaintiff alleges, Defendants breached their common-law duty of care to her, breached contractual obligations owed to her, conspired against her in violation of federal racketeering laws, and failed to report her casino transactions as required by federal law.
Defendants now move: (a) pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Amended Complaint for failure to state a legally cognizable claim; (b) pursuant to Rules 12(b)(2), 12(b)(4), and 12(b)(5), to dismiss the Amended Complaint for defective service of process; and (c) pursuant to Rule 8(a), to dismiss the Amended Complaint for failure to plead a "short and plain statement of the claim showing that the pleader is entitled to relief." For the reasons set forth below, the Court grants Defendants' motions to dismiss for failure to state a claim and for defective service, and thus denies the Rule 8(a) motion as moot.
Plaintiff Arelia Margarita Taveras, formerly an attorney in New York, gambled recreationally at various casinos between 2000 and 2004.
On numerous occasions, Plaintiff's behavior during that period consisted of "consecutive days of gambling, without eating or sleeping . . . ." (Amd. Comp. §§ 112, 147, 150.) Plaintiff alleges that certain casino employees "refused to permit [her] family members from taking her home," (Amd. Comp. § 114.), and continued to allow her to gamble in spite of clear indications that she was a compulsive gambler, confirmed by information about her condition provided to casino employees by her brother. (Amd. Comp. §§ 152-53.) At the height of her addiction, Plaintiff was gambling five days per week and losing an average of $5,000 per hour. (Amd. Comp. § 73.) In a weekend of continuous gambling, Plaintiff lost $150,000. (Amd. Comp. § 76.)
During this period, Plaintiff alleges, she received numerous "enticements" from Defendant-casinos, including casino event promotions, gambling tournament invitations, promotions for free televisions, as well as free limousine rides, hotel rooms, food, entertainment, and gift coupons. (Amd Comp. §§ 137, 157, 159, 168-69.)
Plaintiff was hospitalized twice for "serious mental and physical ailments," (Amd. Comp. § 79.), and ultimately underwent in-patient treatment for her gambling addiction at a facility in Minnesota for nine months. (Amd. Comp. §§ 80, 81.) She filed this action against Defendant casinos, casino owners, and casino employees, on September 20, 2007 for relief in the amount of $20,000,000.
On February 29, 2008, in response to Defendant MGM Hotel, LLC's motion to dismiss for inadequate service of process, this Court allowed Plaintiff an extra 45 days to properly serve Defendant MGM Hotel, LLC, denying without prejudice said Defendant's motion to dismiss. The same day, in response to Defendants' motion to dismiss for failure to plead a "short and plain statement of the claim showing that the pleader is entitled to relief" as required by Federal Rule of Civil Procedure 8(a), this Court dismissed Plaintiff's Complaint without prejudice as to all Defendants except Resorts International Hotel, Bob Benz, and MGM Grand Hotel and Casino, allowing Plaintiff to file an amended complaint in compliance with Rule 8(a) within 45 days. Plaintiff so filed on April 14, 2008.
Defendants Bally's Park Place, Inc., Atlantic City Showboat, and Harrah's Entertainment, Inc. have moved to dismiss the Amended Complaint for defective service of process. [Docket No. 40.]
Defendants Colony Capital, LLC f/k/a Colony Capital, Inc., and Sun International Hotels Limited have moved to dismiss the Amended Complaint for failure to plead a "short and plain statement of the claim showing that the pleader is entitled to relief" as required by Federal Rule of Civil Procedure 8(a). [Docket No. 43.]
All Defendants have filed motions to dismiss the Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Nos. 41, 42, 44, and 45.]
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied if the plaintiff's factual allegations are "enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true, (even if doubtful in fact)."
A district court must accept any and all reasonable inferences derived from those facts.
Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff has alleged "enough facts to state a claim for relief that is plausible on its face."
Plaintiff's Amended Complaint purports to plead twelve causes of action, however it raises essentially only three categories of claims: claims sounding in tort (Negligence (Count II), Intentional and Reckless Disregard for Plaintiff's Safety (Count III), Breach of Common Law Duty of Care (Count IV); Strict Liability (Count V), Respondeat Superior (Count VI), Negligent and Intentional Infliction of Emotional Distress (Counts XI and XII)); claims deriving from contract (Breach of the Implied Covenant of Good Faith and Fair Dealing (Count VII) and Unjust Enrichment (Count VIII)); and allegations of statutory and regulatory violations (The Federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (Count I); the Bank Secrecy Act, 31 U.S.C. §§ 5311-32 (Count IX); and, IRS regulations regarding the obligation to report cash transactions in excess of $10,000 (Count X)).
Most of the allegations in the Amended Complaint amount to variations of a simple negligence claim. Counts II, III, IV, V, VI, and XII all rely on Plaintiff's assertion that Defendants owed a common-law duty to her, which, she alleges, they breached.
For a complaint alleging negligence to survive a motion to dismiss, the Court must find as a matter of law that Defendants owed Plaintiff a duty.
Plaintiff offers a number of different accounts for why Defendants have a duty to identify and exclude compulsive gamblers from their casinos. She first asserts that Defendants owed her "a general duty to exercise reasonable care in the operation of its (sic) casino and gaming activities." (Amd. Comp. § 271.) She also claims that "Defendants were under a duty to use reasonable care under all attendant circumstances to make the premises safe for invitees . . . ."
Plaintiff does not point to any authority in support of this strained understanding of casinos' common-law duties. In fact, the great weight of authority supports Defendants' position that common-law tort principles do not require casinos to rescue compulsive gamblers from themselves.
The strongest argument against the existence of a casino's duty to restrain compulsive gamblers is the State's deliberate decision not to impose such a duty. "[S]tatutory and administrative controls over casino operations . . . are extraordinary[,] pervasive and intensive . . . . [State law regulates] virtually every facet of casino gambling and its potential impact upon the public. The regulatory scheme is both comprehensive and minutely elaborate."
Plaintiff asks this Court to adopt an extreme position, which departs radically from the New Jersey courts' formulation of the common-law duty of care. Plaintiff requests that the Court innovate a new doctrine akin to dram-shop liability in which casinos would have a duty to identify and exclude gamblers exhibiting compulsive tendencies. In
In addition to her simple negligence claims, Plaintiff asserts that Defendants are strictly liable for her injuries on a theory that gambling is an "abnormally dangerous activity." (Amd. Comp. § 321.) This argument has no merit. The New Jersey Supreme Court has applied the analysis set out in Restatement (Second) of Torts § 520 in determining whether an activity is so "abnormally dangerous" that it is worthy of strict liability.
2. Intentional Infliction of Emotional Distress
Plaintiff's only cause of action sounding in tort that does not require a common-law duty of care is her claim of intentional infliction of emotional distress. (Amd. Comp. Count XI, §§ 434-78.) She asserts that it was foreseeable to Defendants that she would become addicted to gambling and that Defendants "intentionally caused [her] severe emotional distress by continuing to entice her into gaming activities." (Amd. Comp. §§ 442-46). This claim, too, is without merit.
"[T]o establish a claim for intentional infliction of emotional distress, the plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe."
To establish "extreme and outrageous conduct," Plaintiff must show that the conduct was "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."
The Court holds that such "outrageous," "extreme," "atrocious," and "utterly intolerable" conduct cannot be found in this case. New Jersey law sets a high bar for establishing extreme and outrageous conduct.
Each of Plaintiff's claims sounding in tort — Counts II, III, IV, V, VI, XI, and XII of the Amended Complaint — therefore fail to state a claim upon which relief may be granted.
B. Contract Claims
Plaintiff asserts two causes of action based in contract: breach of the implied covenant of good faith and fair dealing (Count VII) and unjust enrichment (Count VIII). Plaintiff asserts in her brief
In short, Plaintiff's causes of action for breach of the implied covenant of good faith and fair dealing and for unjust enrichment fail to state a cognizable claim. There is no "generalized duty to act in good faith toward others in social intercourse," Joseph M. Perillo,
Statutory / Regulatory Claims
Plaintiff alleges that Defendants "engaged in a pattern of racketeering activity" in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. (Amd. Comp. Count 1, §§ 230-267). She claims that Defendants used advertisements and solicitations, sent by mail to her home and business, to mislead her into thinking that gambling "would result in high returns and rewards." (Amd. Comp. §§ 236-37.)
To establish a RICO claim, one must plead predicate criminal acts that constitute a threat of continuing racketeering activity.
Plaintiff's Amended Complaint falls far short of this minimum standard. In fact, in the Amended Complaint's 37 paragraphs setting out its RICO claim, Plaintiff fails to identify with particularity (by quoting, for example) even a single falsehood or misleading statement sent through the mail by a particular Defendant. Plaintiff nonetheless argues that her RICO claim should be subject to the fact-finding inquiry of a trial. The requirement that plaintiffs plead the predicate fraudulent acts with particularity, however, exists to protect defendants from defending against spurious charges.
Failure to plead fraud with particularity in a RICO claim is a proper basis for dismissal of the claim.
Other Federal Regulatory Claims
Finally, causes of action IX and X in Plaintiff's Amended Complaint allege that Defendants failed to report certain gaming activities as required by 26 U.S.C. § 60501, 31 C.F.R. § 103 and the Bank Secrecy Act (31 U.S.C. §§ 5311-32). Plaintiff alleges that Defendants' failure to report her high-stakes gambling activity precluded state and federal authorities from interceding to curb her behavior. (Amd. Comp. §§ 410-12, 425-29.) Setting aside this Court's doubts as to whether Plaintiff has standing to bring such a claim,
Defective Service of Process
On February 29, 2008, this Court admonished Plaintiff for failure to properly serve Defendant MGM Grand Hotel, LLC with process; this Court exercised its discretion in not dismissing Plaintiff's claim for lack of proper service; and this Court ordered Plaintiff properly to effect service under pain of dismissal. [Docket Nos. 21-22.] At that time, mindful that Plaintiff was acting
The Court does not extend the same courtesy to Plaintiff today. Defendants Bally's Park Place, Inc., Atlantic City Showboat, and Harrah's Entertainment, Inc. have moved for dismissal of Plaintiff's claims against them for insufficient process and insufficient service of process pursuant to Federal Rule of Civil Procedure 12(b)(2), 12(b)(4), and 12(b)(5) [Docket No. 40]. Again in a conclusory fashion, Plaintiff asserts that she did effectuate proper service on all Defendants, but nonetheless requests an extension to properly serve any Defendants claiming deficient service of process. (Pl. Resp. Br. at 37.) In light of this Court's Opinion and Order of Feburary 29, 2008, the Court denies that "good cause" exists for granting Plaintiff's request.
"Where service upon a defendant was improper, a plaintiff's Complaint must be dismissed without prejudice for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). Proper service is a prerequisite to personal jurisdiction."
FAILURE TO PLEAD A SHORT AND PLAIN STATEMENT OF THE CLAIM
The Court need not reach the motion of Defendants Colony Capital, LLC f/k/a Colony Capital, Inc., and Sun International Hotels Limited to dismiss the Amended Complaint for failure to plead a short and plain statement of the claim showing entitlement to relief pursuant to Rule 8(a), since dismissal of all claims under Rule 12(b)(6) renders moot the motion for improper pleading.
For the aforementioned reasons, Defendants' motion to dismiss the Amended Complaint is granted. An appropriate Order will issue this date.