HILLMAN, District Judge.
Presently before the Court are the motions of defendants for summary judgment on plaintiffs' claims concerning their detention and questioning at the Borgata Hotel, Casino & Spa. For the reasons expressed below, defendants' motions will be granted.
On January 25, 2009, plaintiffs Lisa Houck and Joseph Ronan, along with Houck's parents, were on the casino floor at the Borgata playing the slot machines. A Borgata security guard, defendant Thomas Gable, approached Houck and escorted her to a small cubicle. Gable asked Houck for identification, and Houck showed Gable her state-issued New Jersey driver's license which displayed her legal name. The day before, Houck was in possession of an identification card in the name of "Pam Michaels" which contained Houck's picture, height, and eye color, which she used to obtain a Borgata player's card in the name of "Pam Michaels." She had used the "Pam Michaels" Borgata player's card in a slot machine sometime between January 24th and the 25th.
At a different slot machine in another part of the casino, a security guard approached Ronan and escorted him to a private room. When asked for his identification, Ronan provided an ID with his name on it. Just like Houck, the day before Ronan had used an ID with the name "Seth Michaels" to obtain a Borgata player's card in the name of "Seth Michaels," and he placed it in a slot machine at some point between January 24th and the 25th.
During their detention, which remained separate from one another, defendant Arthur Ferrari of the New Jersey state police asked plaintiffs for identification and for their social security numbers. Plaintiffs were told that they needed to provide their social security numbers to properly identify them because they had used fake IDs. Houck provided her passport to Ferrari, but she refused to provide her social security number. She also asked repeatedly to speak to a lawyer. Ferrari told Houck that if she did not give him her social security number, she could be placed under arrest. Houck eventually provided her social security number. In a different room, Ferrari asked for Ronan's social security number, which he provided. Ronan also requested an attorney. The Borgata obtained plaintiffs' signatures on eviction paperwork, and Gable escorted them out of the Borgata.
Defendants have moved for summary judgment on all of these claims. Defendants contend that the reason for plaintiffs' questioning and eviction from the Borgata was plaintiffs' use of false names on player's cards, their suspected participation in a "hole card" team at the blackjack table, and their suspected "structuring" when they previously sought to cash out winnings.
On a prior visit to the Borgata approximately one week earlier on January 17, 2009, Houck and Ronan went to two different cashiers and attempted to cash out $16,000 in winnings. However, the transactions could not be completed because Ronan did not show his ID.
When plaintiffs came back to the Borgata the following week, defendants contend that they were escorted to private areas to identify themselves due to the suspicious attempt to cash out a large amount of chips without identification, and their use of player's cards in false names. They were also questioned about their play at blackjack tables, including participation in "hole carding," which is where the blackjack dealer fails to fully protect the view of his face down card, and a blackjack player uses that knowledge to his advantage in playing the game. Although Houck denies any involvement in hole carding, Ronan admits that he passed signals and instructions to her while playing blackjack.
The Borgata is required to inform the New Jersey State Police regarding alleged suspicious activity, and that is how defendant Ferrari became involved in January 25, 2009 questioning of plaintiffs. Ferrari contends that he asked for plaintiffs' social security numbers because it was a routine practice used to identify casino patrons suspected of using false identification. After plaintiffs were evicted from the premises
When defendants removed plaintiffs' complaint to this Court, the complaint contained both federal and state claims. As a result, this Court had jurisdiction over plaintiffs' federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367. Even though defendants are entitled to summary judgment on plaintiffs' sole remaining federal claim, the Court will continue exercising its supplemental jurisdiction to resolve the remaining state law claims. See Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1284-85 (3d Cir.1993) (stating that as the statute makes clear, the decision to exercise supplemental jurisdiction over remaining state law claims pursuant to 28 U.S.C. § 1367 is committed to the discretion of the district court); see also The Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. No. 112-63, 125 Stat. 758 (2011), amended 28 U.S.C. § 1441(c) (requiring that a district court remand unrelated state law matters that were removed along with federal claims, but where plaintiffs' state law claims form part of the same case or controversy as their remaining federal claim, remand of the state claims would not be required).
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.2004) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001).
The crux of plaintiffs' complaint regarding the January 25, 2009 incident at the Borgata is that they were aggressively removed from the casino floor, detained and interrogated separately, and intimidated into revealing their social security numbers, all when they did nothing wrong. Plaintiffs vehemently reject the notion that using alternative names is illegal, or that hole carding is a crime, and that defendants' treatment of them constitutes false imprisonment, assault, invasion of privacy, false light invasion of privacy, conversion and unjust enrichment,
False imprisonment is "the constraint of the person without legal justification." The tort of false imprisonment has two elements: (1) "an arrest or detention of the person against his or her will" and (2) "lack of proper legal authority or legal justification." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 969 A.2d 1097, 1117 (2009) (citation and quotations omitted).
Defendants argue that their legal justification for detaining plaintiffs was pursuant to N.J.S.A. 5:12-121, which provides:
N.J.S.A. 5:12-121.
Plaintiffs argue that this statute does not afford immunity to the Borgata and Gable on their false imprisonment claims because in order for the immunity provision to apply, plaintiffs must have been suspected of violating sections 113 through
N.J.S.A. 5:12-115(a). And, Section 116 concerns the unlawful possession of device, equipment or other material illegally manufactured, distributed, sold or serviced. N.J.S.A. 5:12-116.
Plaintiffs argue that these provisions do not apply to them because hole carding does not fall under any of these sections.
Accepting as true that it is not considered unfair or bad etiquette to use a competitor's inadvertently exposed cards to one's advantage in a card game between private players, this same rationale cannot be imputed to a highly regulated casino blackjack game where state statutes prohibit such gamesmanship. Although hole carding could fall into several of the categories listed, it can certainly constitute a "scheme" in Section 113 and an alteration of "the normal random selection of characteristics or the normal chance of the game" in Section 115. Moreover, as pointed out by defendants, the game of blackjack depends entirely upon the concealment of the hole card. See, e.g., N.J.A.C. 19:47-2.6 ("[A] casino licensee may permit a blackjack dealer to deal his or her hole
Thus, the Court cannot credit plaintiffs' argument to the inapplicability of the immunity provision of N.J.S.A. 5:12-121. Because it is applicable, it must be determined whether defendants had probable cause to detain plaintiffs. Defendants argue that in addition to Borgata's suspicion that plaintiffs were hole carding, the chip cashing incident and plaintiffs' using the players cards in false names also provided the basis for defendants' questioning of plaintiffs. The Court finds that this is sufficient probable cause to afford the Borgata defendants immunity under N.J.S.A. 5:12-121.
To explain the finding that defendants had probable cause to detain and question plaintiffs, a New Jersey appellate court decision is on point. In Pantalone v. Bally's Park Place Casino Hotel, 228 N.J.Super. 121, 549 A.2d 55, 57-58 (1988), the appellate division stated,
Pantalone, 549 A.2d at 57-58 (internal citations omitted).
Here, plaintiffs were captured on closed circuit video attempting to cash in a large amount of chips, which Ronan admits was at least $8,000. When asked for ID, however, he declined, retrieved his chips, and left the casino. In addition to this, it appeared that Houck and Ronan were attempting to "structure" the cashing-in of the chips so that ID would not be required, a potential violation of federal criminal law. When plaintiffs returned to the Borgata a week later, they used false IDs to obtain player's cards with false names, and used these cards in the slot machines. Moreover, they were both suspected of being a part of a hole card team, and although Houck denied involvement in hole carding, Ronan admitted to providing Houck instructions and signaling to her.
These factors support the "well-grounded suspicion" to detain and question plaintiffs as to their identities and conduct within the casino. Even though the Court accepts plaintiffs' claims that they felt violated and harassed by being removed from the playing floor, questioned in separate rooms, and ultimately evicted from the casino, the Borgata had the requisite probable cause to do so. Because the Borgata defendants constrained plaintiffs with legal justification, plaintiffs' false imprisonment claim fails as a matter of law.
Plaintiffs claim that they were assaulted by Gable and the other Borgata security personnel involved in the January 25, 2009 incident. Even though neither plaintiff was touched more than a hand on their shoulder, plaintiffs contend that during their interrogation they feared they would be struck by defendants.
A person is subject to liability for the common law tort of assault if: "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 969 A.2d 1097, 1117 (2009) (citation omitted) (also explaining that the companion tort of battery rests upon a nonconsensual touching).
The Court accepts as true plaintiffs' contention that they felt fearful of the circumstances surrounding their removal from the casino floor and questioning in private rooms, and that Houck specifically felt intimated by the male security personnel. There is no evidence in the record, however, from which a reasonable jury could find that the Borgata defendants acted to cause harmful physical contact to plaintiffs or acted in such a way as to threaten such harm imminently. Plaintiffs' allegations, without the support of specific facts and affirmative evidence, cause plaintiffs' claim for assault to fail.
Plaintiffs have asserted two invasion of privacy claims regarding the forced revelation of their social security numbers. As explained in plaintiffs' opposition briefs, there are four categories of invasion of privacy claims:
Swan v. Boardwalk Regency Corp., 407 N.J.Super. 108, 969 A.2d 1145, 1152 (2009) (citing W. Page Keeton, et al, Prosser and Keeton on the Law of Torts § 117 (5th ed.1984)). Plaintiffs' briefs also clarify that the two types of invasion of privacy violations plaintiffs claim were perpetrated by defendants in extorting their social security numbers are intrusion and appropriation.
The record shows that the Borgata staff did not demand plaintiffs' social security numbers. Instead it was New Jersey State Trooper Ferrari who requested their social security numbers so that their identities could be confirmed and a state police investigation could be pursued. There is no evidence in the record that Gable or any other Borgata employee asked for their social security numbers or recorded those numbers for future use. Accordingly, plaintiffs' invasion of privacy claim fails.
Plaintiff Houck claims that when she was removed from the casino floor, she was forced to leave an $800 money ticket voucher in the slot machine. Because she was evicted from the Borgata without it being returned to her, the Borgata is liable for conversion and unjust enrichment.
Houck states that when she was escorted to leave her slot machine, she asked her mother to watch the two slot machines she was playing. Her mother testified that one machine would not cash out, and the other provided a voucher, but she cannot remember the value of the voucher, and she cannot remember how much money was left on the machine that would not cash out. She also testified that she did not seek any assistance from a Borgata employee to help with the slot machine that would not cash out.
It is plaintiff's burden to prove her claims, and she has not provided any evidence, such a transactional report from the slot machine or testimony from a Borgata employee, to establish that (1) she was actually playing with a voucher worth $800, (2) the voucher was validly hers, and (3) the Borgata retained all of it. See Bondi v. Citigroup, Inc., 423 N.J.Super. 377, 32 A.3d 1158, 1190 (2011) (explaining that the common law tort of conversion is the wrongful exercise of dominion and control over property owned by another in a manner inconsistent with the owner's rights, and two essential elements are that the money converted by a tortfeasor must have belonged to the injured party, and that the funds must be identifiable).
Plaintiffs claim that the Borgata defendants' actions constitute consumer fraud under New Jersey's Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. To prevail on a CFA claim, a plaintiff must establish three elements: "1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Zaman v. Felton, 219 N.J. 199, 98 A.3d 503, 516 (2014). The NJCFA defines an "unlawful practice" to include: "any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, . . . whether or not any person has in fact been misled, deceived or damaged thereby." N.J.S.A. 56:8-2.
Plaintiffs contend that their false imprisonment, assault, and conversion claims constitute the "unlawful conduct" element of their NJCFA claim. Because those predicate "unlawful" acts fail as a matter of law, so does plaintiffs' NJCFA claim.
Plaintiffs assert a broad claim of negligence encompassing all of their allegations that the Borgata defendants acted negligently. To establish a prima facie case of negligence, a plaintiff must establish all of the following elements: (1) duty of care, (2) breach of that duty, (3) proximate cause, and (4) damages suffered by the plaintiff. Filipowicz v. Diletto, 350 N.J.Super. 552, 796 A.2d 296, 299 (2002) (citation omitted). The duty owed to a plaintiff is determined by the circumstance that brought him or her to the property, and an invitee, in the legal sense, is "one who is on the premises to confer some benefits upon the invitor other than purely social." Filipowicz, 796 A.2d at 299 (citations omitted).
Plaintiffs rely upon their claims supporting their false imprisonment, invasion of privacy, and other counts to support their contention that the Borgata defendants breached their duty of care to plaintiffs. These bases to prove that defendants breached the duty of care to plaintiffs fail for the same reasons as their other claims.
Plaintiffs contend that their experience at the Borgata caused them emotional distress. Plaintiffs' emotional distress claims fail.
"Whether it is alleged that the defendant acted intentionally, recklessly or negligently," the New Jersey Supreme Court "has said that recovery lies only if the plaintiff can prove the emotional distress produced by the defendant's tortious conduct was `severe,' or `genuine and substantial.'" Innes v. Marzano-Lesnevich, 435 N.J.Super. 198, 87 A.3d 775, 797 (2014) (citations omitted). To recover "emotional distress damages under the rubric of negligent or intentional infliction of emotional distress," a plaintiff is required to make a "heightened showing of physical or psychological sequelae." Innes, 87 A.3d at 799 (citations omitted).
In addition to plaintiffs' inability to prove their negligence or other claims, plaintiffs have not provided any proof regarding their severe emotional distress. Accordingly, defendants are entitled to summary judgment on plaintiffs' emotional distress claims.
Plaintiffs claim that their detention, interrogation, and extortion of their social security numbers by New Jersey
The Fourth Amendment of the United States Constitution prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. To establish an unlawful seizure under the Fourth Amendment, a plaintiff must show that the defendant's actions: (1) constituted a "seizure" within the meaning of the Fourth Amendment, and (2) that seizure was "unreasonable" in light of the surrounding circumstances. Brower v. County of Inyo, 489 U.S. 593, 595-600, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). A seizure occurs "when [a police officer], by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19-20 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The "show of authority" test "is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The Supreme Court has stated that the warrantless seizure of a person for a brief investigatory detention is reasonable absent a warrant, provided the officer had "a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citation omitted). "Reasonable suspicion is an objective standard requiring "particularized justification." " United States v. Crandell, 554 F.3d 79, 84 (3d Cir.2009).
In considering plaintiffs' false imprisonment claims against the Borgata defendants, the Court found that probable cause existed to remove plaintiffs from the casino floor and question them about their activities. With regard to Ferrari's involvement in their questioning, plaintiffs contend that he threatened them with arrest if they did not provide him with their social security numbers.
As a primary matter, just as probable cause existed for the Borgata defendants to detain and question plaintiffs, the same finding can be applied to Ferrari's detention of plaintiffs. This is especially true because "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. Illinois, 528 U.S. at 123, 120 S.Ct. 673.
With regard to Ferrari's demands for plaintiffs' social security numbers, Ferrari states that it is normal practice for state police to ask for a suspect's social security number when there is evidence of false identifications. Ferrari's request was not without legitimate purpose, as Ferrari had opened a state police investigation for "Cheating at Table Games and Financial Facilitation of Criminal Activity," pursuant to N.J.S.A. 5:12-113A and N.J.S.A. 2C:21-25b. The Court does not find it objectively unreasonable for a police officer to confirm a criminal suspect's identity where the suspect has admitted to using identification
For the reasons expressed above, defendants are entitled to summary judgment on all of plaintiffs' claims against them. An appropriate Order will be entered.
