Williams v. Aztar Indiana Gaming Corp.

• Decision Date: 05 December 2003
• Docket Number: No. 03-1822.,03-1822.
• Citation: 351 F.3d 294
• Parties: David M. WILLIAMS, Plaintiff-Appellant, v. AZTAR INDIANA GAMING CORPORATION f/d/b/a Casino Aztar, and Aztar Indiana Gaming Company, LLC d/b/a Casino Aztar, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

351 F.3d 294

David M. WILLIAMS, Plaintiff-Appellant, v. AZTAR INDIANA GAMING CORPORATION f/d/b/a Casino Aztar, and Aztar Indiana Gaming Company, LLC d/b/a Casino Aztar, Defendants-Appellees.

No. 03-1822.

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2003.

Decided December 5, 2003.

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Terry Noffsinger (argued), Noffsinger & Barnett, Evansville, IN, for Plaintiff-Appellant.

Patrick A. Shoulders (argued), Ziemer, Stayman, Weitzel & Shoulders, Evansville, IN, for Defendants-Appellees.

Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

David M. Williams is a compulsive gambler who gambled away his life savings at Casino Aztar. He sued defendants in federal court, alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute and other state law claims. The district court granted summary judgment to defendants on all of his claims and Williams appeals one aspect of the ruling. Because we find his RICO claim to be frivolous and alleged solely to invoke the jurisdiction of the federal courts, we vacate the district court's judgment and dismiss his lawsuit for want of subject-matter jurisdiction.

I. BACKGROUND

David Williams is a college graduate and former auditor with the Indiana Department of Revenue. In 1996, he began gambling at Casino Aztar, a riverboat casino on the Ohio River in Evansville, Indiana. When his gambling habits appeared excessive, Darlene Tempel, his girlfriend and former roommate, contacted various entities on his behalf, including the Governor's office, state and local police officials, and a mental health facility. In April or May 1997, Tempel also called Aztar's Human Relations Department to express her concerns but was informed that Aztar could not act on the request of an unrelated third party.¹ Aztar suggested that Tempel encourage Williams's parents to intervene, but Williams apparently dissuaded her from contacting them.

In March 1998, as Williams's gambling spun further out of control, Tempel again contacted Aztar and informed the casino that Williams had compulsively gambled himself into financial debt and depression and that he was contemplating suicide. In response to her pleadings, two members of Aztar's Responsible Gaming Committee approached Williams in the casino to discuss his gambling habits. Later that night, Williams checked into a local mental health facility, where he was subsequently committed by court order in light of suicide letters he had written. Later that month, Aztar sent Williams a "Cease Admissions" letter stating:

[W]e must insist that prior to gaming with us, at any time in the future, you must present us with medical/psychological information which demonstrates that your patronage of our facility poses no threat to your safety and/or well-being.... As we are sure you understand, Casino Aztar must reserve the right to cease doing business with any customer when to do so is in the best interest of not only Casino Aztar, but the customer as well.

Between Tempel's first communication to Aztar and the casino's mailing of the "Cease Admissions" letter, Williams gambled away approximately $160,000.

Although he received outpatient treatment for his gambling addiction and was able to avoid gambling for nearly a year, Williams ultimately gave in to his addiction and returned to gamble at Aztar in early 1999. When he initially returned to the casino, Williams failed to bring his "Fun Card," an Aztar-provided card that identifies the holder and tracks that person's betting history on the machines and in the casino's computer system. Nevertheless, without identifying himself, submitting a request for reinstatement, or presenting Aztar with medical documentation as requested in the "Cease Admissions" letter, Williams was admitted to the casino without confrontation or impediment and permitted to gamble.² After four or five visits, Williams started using his "Fun Card" again, and as a result began receiving a variety of promotional mailings from Aztar. It was not until August 2000 that Williams was informed by an Aztar security guard that he was again barred from the premises. By this time, Williams had gambled away an additional $15,000 to $20,000.

Williams sued Aztar's former and current operators, claiming a civil violation of the federal RICO statute, codified at 18 U.S.C. § 1961 et seq., resulting from an alleged pattern of racketeering activity in the form of mail fraud. He also brought various state law claims including state racketeering activity, tortious breaches of duty, premises liability, intentional infliction of emotional distress, breach of constructive or implied contract, fraudulent misrepresentation, and breach of contract, and sought punitive damages. The district court dismissed Williams's initial RICO claim without prejudice, finding that it failed to allege sufficient facts to substantiate the predicate act of mail fraud. After Williams filed a Second and then Third Amended Complaint, which reasserted RICO claims, defendants answered and moved for summary judgment on all claims. The district court again dismissed Williams's RICO claim, finding that he failed to allege acts that give rise to mail fraud, but exercised supplemental jurisdiction over his remaining state law claims and granted defendants summary judgment on all remaining counts.

Williams appeals the grant of summary judgment on his tortious breach of the duty of care claim, asking this court to either ignore our earlier decision in Merrill v. Trump Indiana, Inc., 320 F.3d 729 (7th Cir.2003), in which we held that Indiana law does not impose a duty of care on casino operators to protect gambling addicts from their own addictive and injurious behavior, or to certify the question to the Indiana Supreme Court notwithstanding our explicit rejection of a similar request in Merrill. Williams does not appeal the dismissal of the RICO claim that was his sole basis for invoking federal jurisdiction.

II. ANALYSIS

David Williams is a resident of Indiana and defendants have at all times been organized and existing under the laws of Indiana with their principal places of business in Indiana. Because the parties are not of diverse citizenship, see 28 U.S.C. § 1332, Williams must allege a claim under the Constitution or federal statutes to invoke the jurisdiction of the federal courts. Id. § 1331; Oak Park Trust & Sav. Bank v. Therkildsen, 209 F.3d 648, 651 (7th Cir.2000). "It is standard learning that federal question jurisdiction arises only when the complaint standing alone `establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Minor v. Prudential Secs., Inc., 94 F.3d 1103, 1105 (7th Cir.1996) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)) (other citations omitted).

To invoke federal question jurisdiction, Williams alleged a violation of the federal RICO statute by virtue of mail fraud under 18 U.S.C. § 1341. See 18 U.S.C. § 1961(1)(B).³ The viability of Williams's RICO claim turns on whether he has established a pattern of racketeering activity, which is an essential element of a claim under the RICO statute. Vicom, Inc. v. Harbridge Merchant Serv., Inc., 20 F.3d 771, 778-79 (7th Cir.1994). The RICO statute does not define the pattern requirement, but provides that a pattern requires at least two acts of racketeering activity within a ten-year period, 18 U.S.C. § 1961(5), and "racketeering activity" is defined to include any act indictable under specified provisions of the United States Code, including mail fraud under 18 U.S.C. § 1341. See id. § 1961(1)(B); McDonald v. Schencker, 18 F.3d 491, 494 (7th Cir.1994). The Supreme Court has indicated that, "in addition to at least two predicate acts, a RICO plaintiff must show `that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.'" Corley v. Rosewood Care Ctr., Inc. of Peoria, 142 F.3d 1041 (7th Cir.1998) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 237, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)) (emphasis in original). Therefore, a RICO plaintiff like Williams alleging racketeering activity in the form of mail fraud must show "continuity plus relationship with respect to the alleged predicate[]" acts of mail fraud. Id. (citing H.J. Inc., 492 U.S. at 239, 109 S.Ct. 2893; Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275).

Even if we assume that the mailings on which Williams bases his RICO claim meet the relationship and continuity prongs required of predicate acts,⁴ Williams must still explain how these mailings constitute the predicate act of mail fraud, and thus "racketeering activity." See Emery v. Am. Gen. Fin. Inc., 71 F.3d 1343 (7th Cir.1995); Spitz, 976 F.2d at 1022. The elements of mail fraud under 18 U.S.C. § 1341 are: "(1) the defendant's participation in a scheme to defraud; (2) defendant's commission of the act with intent to defraud; and (3) use of the mails in furtherance of the fraudulent scheme." United States v. Walker, 9 F.3d 1245, 1249 (7th Cir.1993); see also McDonald, 18 F.3d at 494. A necessary element of a scheme to defraud is the making of a false statement or material misrepresentation, or the concealment of a material fact, see Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), United States v. Tadros, 310 F.3d 999, 1006 (7th Cir.2002), and it is here that Williams's complaint fails.

Williams alleges that the language in Aztar's communications to him — i.e., both the "Cease Admissions" letter and the promotional mailings — were intentional misrepresentations designed to defraud Williams of his money or property. The "Cease Admissions" letter, however, in no way constitutes a...