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Houck v. Ferrari

United States District Court, D. New Jersey

October 22, 2014

ARTHUR J. FERRARI, PREVIOUSLY J. DOE #1, WHO IDENTIFIED HIMSELF AS " POLICE", J. DOE #2, et al. (both in their personal and official capacities if they are police officers), AND BRIEF OF THOMAS GABLE, PREVIOUSLY J. DOE #3, PLAINTIFF, HOUCK, TO J. DOES #4 TO #10, MARINA DISTRICTBORGATA AND GABLE'S DEVELOPMENT COMPANY, LLC, d/b/a MARINA MOTION FOR SUMMARY DISTRICT DEVELOPMENT COMPANY, LLC d/b/a JUDGMENT BORGATA HOTEL, CASINO & SPA, PREVIOUSLY ABC BUSINESS ENTITY #1, ABC BUSINESS ENTITIES #2 TO #10, THE STATE OF NEW JERSEY, (only with respect to responsibility for any sexual discrimination or harassment perpetrated by J. Does #1 & #2), MUNICIPALITY #1(if the officers are municipal police) AND COLONEL RICK FUENTES, SUPERINTENDENT OF THE NEW JSERSEY STATE POLICE (solely in his official capacity for declaratory relief if J. does #1 or #2 were State Police Officers), jointly, severally and in the alternative, Defendants

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THOMAS B. DUFFY, ABSECON, NJ, On behalf of plaintiffs.




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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.[1]

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Plaintiffs claim that defendants terrorized them and improperly extorted their social security numbers from them, and defendants did so by violating numerous federal and state laws. Plaintiffs' complaint contains the following claims: false imprisonment (Count I), assault (Count II), invasion of privacy (Count III), false light (Count IV), harassment and intimidation (Count V), conversion or unjust enrichment (Count VI), consumer fraud (Count VII), negligence (Count VIII), intentional infliction of emotional distress (Count IX), negligent infliction of emotional distress (Count X), sexual, marital status or affectional discrimination under the New Jersey Law Against Discrimination (Count XI), numerous claims pursuant to 42 U.S.C. § 1983, including violations of the First Amendment, Fourth Amendment, Eighth Amendment, Fourteenth Amendment, and Equal Protection Clause to the U.S. Constitution (Count XII), numerous claims pursuant to the New Jersey Civil Rights Act (" NJCRA" ) (Count XIII), violation of the New Jersey ID Privacy Act, N.J. Stat. Ann. 56:8-161 to -166 (Count XIV), violation of the Fair Credit Reporting Acts (Count XV), and injunctive relief via § 1983 (Count XVI).

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.[2] Ronan retrieved his chips and left the casino. The Borgata was alerted to plaintiffs at this time because it is a violation of federal and New Jersey state law to cash out more than $10,000 by one person without showing proof of identity, including a social security number. Moreover, the Borgata is required to monitor and report suspicious activity.

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

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by Borgata security personnel, the state police conducted a review of video security footage. Because the video was inconclusive, a criminal investigation of the plaintiffs was closed without any charges.


A. Subject matter jurisdiction

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).

B. Summary judgment standard

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).

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. 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, 43 V.I. 361 (3d Cir. 2001).

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C. Analysis

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,[3] consumer fraud, negligence, and emotional distress, [4] and, ...

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