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MARCANGELO v. BOARDWALK REGENCY CORP.

March 30, 1994

MICHAEL MARCANGELO, Plaintiff
v.
BOARDWALK REGENCY CORPORATION, d/b/a CAESARS ATLANTIC CITY, a/k/a CAESARS BOARDWALK REGENCY HOTEL CASINO, Defendant/Third Party Plaintiff v. IGT, Third Party Defendant



The opinion of the court was delivered by: JOSEPH E. IRENAS

 IRENAS, District Judge:

 Plaintiff achieved a royal flush while playing a progressive slot machine located in the defendant's casino. However, because the order of the cards was the reverse of the "sequential royal flush" indicated on the machine's signage, the plaintiff received only $ 1046.31, the value of the secondary jackpot. This amount was substantially less than the primary "Pokermania" jackpot of $ 187,000. Plaintiff brought suit to recover the primary jackpot, alleging claims for breach of contract, fraud, and violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. Defendant now moves for summary judgment pursuant to Fed. R. Civ. P. 56.

 We find that a private cause of action in favor of casino patrons may not be implied from the Casino Control Act (the "Act"), N.J.S.A. 5:12-1 to -210, where the casino has complied fully with the applicable statutory and regulatory requirements. As to plaintiff's claims of a common-law cause of action for alleged inadequacies in machine signage, we find that such a cause of action, if it did exist, would be preempted by the express text of the Act. Finally, even if we were to recognize a common-law cause of action that was not preempted by the Act, plaintiff would be entitled only to (1) restitution of the amount by which the defendant was enriched ($ 1.25), or (2) the amount of damages necessary to make the plaintiff whole ($ 0.00). Summary judgment will therefore be granted in favor of the defendants.

 I. BACKGROUND

 A. The Pokermania Slot Machine System

 Pokermania is a "multi-casino progressive slot machine game." Defendant's Brief in Support at 3. Pokermania slot machines are located in eight Atlantic City casinos. The machines are owned by third-party defendant International Gaming Technology ("IGT") and leased to the Atlantic City Pokermania Trust, comprising representatives from participating casinos, charged with responsibility for all jackpots won in the multi-casino Pokermania game. Affidavit of Paul Tjoumakaris at P 2. *fn1"

 Each Pokermania machine had a slot into which a patron could place one to five quarters. After placing the coins into the slot, the patron would press the "Deal" button, which would cause a computer chip within the machine to generate and display images of playing cards. A chart on the screen of the machine listed the various winning combinations and the corresponding payoffs.

 The Pokermania system also provided for two progressive payoffs. A "sequential royal flush," defined on the face of the machine as the left to right sequence of 10, Jack, Queen, King, and Ace of a specified suit, would win the primary Pokermania progressive jackpot, known as the "Pokermania jackpot." Defendant's Brief in Support at 4. In addition, a "royal flush," defined as a combination of 10, Jack, Queen, King, and Ace, all of the same suit, in any order, would win a secondary jackpot known as "Mini-Mania." Id.

 B. Approval of Pokermania

 In 1992, participants in the Atlantic City Star Poker Trust decided to convert to the Pokermania multi-casino progressive jackpot system, which differed from Star Poker in the following ways: the top hand was designated as "an ordered sequential royal flush in a selected suit in this order: 10, Jack, Queen, King, Ace"; two progressive jackpots were adopted, known as "Pokermania" and "Mini-Mania"; the game now used a five-column paytable with no joker; the machine supported a "Rowe bill collector"; the denomination was "hardcoded" to a quarter; and the "cashout light" would turn on only after credits had been won. Letter from William G. Foster, IGT, to Richard H. Williamson, New Jersey Division of Gaming Enforcement ("DGE") of 8/28/92.

  Proposals for the adoption of the Pokermania system were submitted by IGT, manufacturer of the system, to the New Jersey Division of Gaming Enforcement and to the Casino Control Commission for their approval. See N.J.S.A. 5:12-100(h) (requiring approval prior to use in the casino). The DGE submission detailed the differences from the Star Poker system and included printed listings of several of the computer files and copies of the signage. *fn2" The CCC submission contained such information as the number of progressive awards, the percentage payout, the rate of progression, the number and type of progressive control units. Both submissions included a copy of the "paytable," which listed winning combinations along with the maximum payouts for and the probability of each combination. Listed as the top winning combination was the "Royal Flush -- Ordered," which a footnote to the table defined as "10 J Q K A - In a particular suit."

 On September 10, 1992, the Division of Gaming Enforcement responded to IGT's request. DGE reported to the CCC that it "[did] not interpose an objection to the utilization of the [Pokermania] poker programs, character generator (CG1145) and color attribute prom (CAP(X)779)." Letter from Katherine A. Smith, DGE, to Hon. Steven P. Perskie, CCC of 9/10/92. However, the DGE did interpose an objection to the use of a bill changer in connection with the program, since that portion of the poker program had not fully satisfied the DGE's testing requirements. Id. On September 11, 1992, the CCC formally approved IGT's request to implement "the new poker programs, character generator, and color attribute prom." Letter from Barbara A. Mattie, CCC, to Raymond D. Pike, IGT of 9/11/92. *fn3"

 C. The Instant Complaint

 On November 13, 1992, plaintiff Michael Marcangelo was playing a Pokermania slot machine, designated as "Asset Number 31814," in the defendant's Atlantic City casino. Plaintiff deposited five quarters into the machine and pressed the "Deal" button. After plaintiff discarded three of the cards and received three replacements, a royal flush -- Ace, King, Queen, Jack, and 10 of hearts -- appeared on the screen. Complaint at P 4. The lights on the machine lit up and a slot machine attendant approached the plaintiff's machine. The attendant called for the manager, Mr. Brandt, who notified the plaintiff that he had won the "Mini-Mania" secondary jackpot.

 Plaintiff but filed an incident report with the casino, in which he contended that he had in fact won the primary progressive jackpot, then valued at $ 187,736.60. *fn4" Thereafter he filed a "Patron Complaint Report" with the CCC, wherein he repeated his contention that he had won the primary progressive jackpot and demanded "full payment." Patron Complaint Report of 11/23/92. A representative of CCC forwarded the complaint to Caesar's General Counsel, Robert E. Reilert, requesting an expanded narrative of the incident and suggesting informal resolution of the dispute. Reilert responded that the plaintiff's explanation was "as good as we can do," and that attempts at informal resolution would be fruitless, "as it looks like a lawsuit is coming." Note of Robert E. Reilert to Kenneth Doss, CCC of 11/25/92.

 On October 18, 1993, plaintiff filed suit in the United States District Court for the District of New Jersey. Jurisdiction was premised on the diversity of the parties. The complaint alleged theories of recovery under breach of contract, fraud, and the New Jersey Consumer Fraud Act. On December 16, 1993, defendant filed an answer to the complaint, interposing, inter alia, the affirmative defenses of accord and satisfaction, failure to state a claim on which relief could be granted, and failure to join indispensable parties. On January 26, 1994, defendant filed a third-party complaint against IGT, the manufacturer of the Pokermania system, for indemnity and contribution.

 On February 22, 1994, defendant filed the instant motion to dismiss, and in the alternative moved for summary judgment. Defendant maintains that the plaintiff's three theories of recovery "can all be distilled to one argument which is cast in several molds but retains its essence in each form: That the signage on the machine . . . is improper because it is 'ambiguous' or difficult to read or because of the 'glittering lights,' and, therefore, it did not give 'fair notice of the rules.'" Defendant's Reply Brief at 2. It argues that plaintiff's suit is preempted by the Casino Control Act, which gives the CCC authority to approve machine signage. In the alternative, defendant argues that summary judgment should be granted in its favor because the plaintiff has failed to adduce evidence of fraud or breach of contract. Plaintiff responds that (1) the Casino Control Act does not regulate private disputes between parties; (2) he may properly bring suit in federal court; and (3) genuine issues of material fact exist which preclude summary judgment.

 II. LEGAL ANALYSIS

 A. The Standard for Summary ...


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