The opinion of the court was delivered by: Hillman, District Judge
Plaintiff, Adamar of New Jersey, Inc., trading as The Tropicana Casino & Resort ("Adamar" or "Tropicana"), has brought suit against Defendant, Mark Luber, for breach of contract in the amount of $220,000. Adamar now moves for summary judgment against Luber. In turn, Luber cross-moves for summary judgment against Adamar.
For the reasons expressed below, Adamar's Motion for Summary Judgment is granted in part and denied in part. Further, Luber's Cross-motion for Summary Judgment is denied.
This Court exercises subject matter jurisdiction over the underlying claim pursuant to 28 U.S.C. § 1332. There is complete diversity between the parties in the underlying action. Plaintiff, Adamar, is incorporated in the State of New Jersey with its principal place of business in Atlantic City, New Jersey. Defendant, Mark Luber, is a citizen of the Commonwealth of Pennsylvania. The amount in controversy exceeds $75,000.
On or around November 13, 2008, Mark Luber was a patron at the Tropicano Casino & Resort in Atlantic City, New Jersey.
Given his purported wealth and gambling history, Luber was recognized as a high-end customer who wagers large sums of money. At Luber's request, Adamar provided pre-approved credit and an additional temporary extension of credit to him in the aggregate amount of $220,000 so that he could gamble at the casino.*fn1 In exchange, Luber executed three counter checks, or casino markers, to Adamar during the course of the night. Each check stated on its face:
I represent that I have received cash for the above amount and that said amount is on deposit in said bank or trust company in my name. It is free from claims and is subject to this check. (Plaintiff's Appendix ("Pl. App."), Exh. A, at 4). Luber executed the first check, and originally accessed his credit, for $100,000 around 8:46 p.m. He signed the second check for another $100,000 at approximately 9:04 p.m. Lastly, Luber attained additional credit worth $20,000 when he signed the third and final check around 11:30 p.m.
From approximately 9:00 p.m. to 2:00 a.m., Luber played at his own mini-baccarat table at the Tropicana. Michelle Mazzagatti served as his primary dealer. At her deposition, Mazzagatti testified that Luber appeared intoxicated during his time at the table, though she did not identify any particular signs or symptoms of inebriation that he may have exhibited. She also stated that Luber was continuously served alcoholic beverages.
For his part, Luber testified at his deposition that he could remember little, if anything, from the night in question. However, he acknowledged that he had utilized his credit line at the Tropicana and had outstanding debt with the casino. Luber also stated that when he frequents casinos, he often imbibes alcohol excessively, which impairs his judgment.
Sometime after Luber played at the casino, Adamar attempted to draw on the counter checks he had executed, but Luber's bank refused to honor them due to insufficient funds. Unable to redeem the checks, Adamar sought repayment of the $220,000 credit directly from Luber. Luber, however, refused to repay the debt, arguing that casino employees continued to serve him alcoholic beverages even though he was already visibly intoxicated. Because he was inebriated, Luber believes he was legally incapable of entering into a valid contract with Adamar and that his agreement to repay them $220,000 is null and void.
On or around May 19, 2009, Adamar brought suit against Luber for breach of contract in the Superior Court of New Jersey. Luber removed the suit to this Court on the grounds of diversity jurisdiction. Further, he filed a third-party complaint against unknown casino entities and employees, alleging that those parties served him alcohol, or permitted the service of alcohol to him, at the casino when he was visibly intoxicated and, despite his conspicuous intoxication, allowed him to continue to gamble large ...