Buisier v. The R.I. Div. of Lotteries

• Decision Date: 10 January 2023
• Docket Number: C. A. PC-2021-07468
• Parties: NASSER BUISIER, Plaintiff, v. THE R.I. DIVISION OF LOTTERIES, Mark A. Furcolo, in his Capacity as Administrator, UTGR, INC., a/k/a TWIN RIVER CASINO, d/b/a BALLY'S TWIN RIVER LINCOLN CASINO RESORT, and TWIN RIVER MANAGEMENT GROUP, INC. Defendants.
• Court: Rhode Island Superior Court

1

NASSER BUISIER, Plaintiff, v. THE R.I. DIVISION OF LOTTERIES, Mark A. Furcolo, in his Capacity as Administrator, UTGR, INC., a/k/a TWIN RIVER CASINO, d/b/a BALLY'S TWIN RIVER LINCOLN CASINO RESORT, and TWIN RIVER MANAGEMENT GROUP, INC. Defendants.

C. A. No. PC-2021-07468

Superior Court of Rhode Island, Providence

January 10, 2023

For Plaintiff: Mylene L. Cathcart, Esq.

For Defendant: Kyle Zambarano, Esq. Brendan F. Ryan, Esq.

DECISION

STERN J.

Before this Court is Defendants'^[1]-The State Lottery Division of the State of Rhode Island Department of Revenue ("R.I Lottery"), UTGR, Inc., a/k/a Twin River Casino, d/b/a Bally's Twin River Lincoln Casino Resort ("TR Lincoln"), and Twin River Management Group, Inc. ("TR Management") -Motion to Dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. Plaintiff Nasser Buisier ("Plaintiff") filed a timely objection. Jurisdiction is pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure.

I.

Facts and Travel^[2]

On or about August 2, 2020, Plaintiff purchased sports betting lottery tickets from Defendants. (Pl.'s Am. Compl. ¶ 10.) Relying on online "House Rules" ("the Online Rules") posted on TR Lincoln's website, Plaintiff took photographs of the purchased tickets because the Online Rules indicated that photographic evidence of purchased tickets would be honored. Id. ¶ 12. Two of the tickets Plaintiff purchased that day won. Id. ¶ 14. Plaintiff asserts he had-and still has-photographic evidence that he did in fact purchase the two winning tickets. Id. ¶ 16. Plaintiff alleges he made multiple attempts to collect on the winning tickets within the given one-year timeframe permitted to claim sports betting winnings. Id. ¶ 25; see also Defs.' Reply Mem. Ex. A (House Rules) § 1.B.d. At the time Plaintiff placed his wagers on August 2, 2020, he believed the outdated Online Rules were in effect, which contradicted the updated May 2019 version of the House Rules (the May 2019 House Rules) governing the collection of winnings. (Pl.'s Am. Compl. ¶¶ 12-13.) Defendants refused to honor the photographic evidence of the winning tickets. Id. ¶¶ 25-31.

Based on Defendants' refusal to accept the photographs as evidence of his purchased tickets, Plaintiff filed his original Complaint on December 13, 2021, asserting seven claims^[3]against the R.I. Lottery, Mark A. Furcolo, UTGR, Inc., Twin River Management Group, Inc. and American Wagering, Inc. See generally Pl.'s Compl. ("Complaint"). Following the filing of Plaintiff's Complaint, Defendants filed an answer and jointly filed a Motion for Judgment on the Pleadings against all of Plaintiff's claims. See Docket (PC-2021-07468).

On May 2, 2022, this Court issued its decision on Defendant's Rule 12(c) Motion for Judgment on the Pleadings against all of Plaintiff's counts in his original Complaint. Decision (Stern, J.) 16 (May 2, 2022) ("Decision"). In that Decision, this Court dismissed Plaintiff's original Complaint because it was beyond a reasonable doubt that Plaintiff would not be entitled to relief under the set of facts alleged. (Decision 16.) This Court determined that the May 2019 House Rules superseded the outdated Online Rules before Plaintiff placed his August 2, 2020 bets. Id. at 6-8. Relying on that determination, this Court held that Plaintiff could not redeem his winnings with only photographs of the tickets. Id. at 8-9. Among other things, this Court agreed with Defendants' argument to apply the May 2019 House Rules regarding redeeming ticket winnings: "[n]o winning wager will be paid without the customer copy of the wagering ticket. No reproductions or photos of wagering tickets will be accepted. Management is not responsible for lost, stolen, altered or unreadable tickets." Id. at 5 (quoting Defs.' Mem. of Law in Supp. of J. on the Pleadings, 8).

Following that Decision, Plaintiff filed an Amended Complaint on June 21, 2022, asserting a total of twenty-three new causes of action. See generally Pl.'s Am. Compl. Now, Defendants bring this instant joint Motion to Dismiss the First Amended Complaint for Failure to State a Claim pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. Plaintiff filed a timely objection. See Docket (PC-2021-07468). Oral arguments were heard on October 24, 2022. Id. This Decision follows.

II. Standard of Review

A motion to dismiss under Rule 12(b)(6) "has a narrow and specific purpose." Mokwenyei v. Rhode Island Hospital, 198 A.3d 17, 21 (R.I. 2018). Its function is to test the sufficiency of the complaint. Pontarelli v. Rhode Island Department of Elementary and Secondary Education, 176 A.3d 472, 476 (R.I. 2018). When considering a Rule 12(b)(6) motion to dismiss, the Court "need not look further than the complaint in conducting our review." Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008) (citing Rhode Island Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)). A motion to dismiss will be granted only "if it 'appears beyond a reasonable doubt that a plaintiff would not be entitled to relief under any conceivable set of facts.'" Laurence v. Sollitto, 788 A.2d 455, 456 (R.I. 2002) (quoting Rhode Island Affiliate, ACLU, 557 A.2d at 1232). The trial justice must take all allegations in the complaint as true and "resolve any doubts in a plaintiff's favor." Pontarelli, 176 A.3d at 476.

In the alternative, if the Court decides to consider matters outside of the pleadings, then the motion will be treated as one for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. Multi-State Restoration, Inc. v. DWS Properties, LLC, 61 A.3d 414, 417 (R.I. 2013). As such, if the Court were to consider matters outside of the pleadings, then the Court will convert the motion to one for summary judgment and grant said motion if there is no genuine issue of material fact and "the moving party is entitled to judgment as a matter of law." Id. During a summary judgment proceeding-if the Court were to decide to treat this matter as such-the Court does not pass judgment on the weight or credibility of the evidence. See DeMaio v. Ciccone, 59 A.3d 125, 129-30 (R.I. 2013). The hearing justice must consider affidavits and pleadings in the light most favorable to the opposing party. O'Connor v. McKanna, 116 R.I. 627, 634, 359 A.2d 350, 354 (1976).

Following oral arguments on October 24, 2022, this Court requested that the parties address the issue of whether Defendants consented to its consideration of certain factual representations made by Plaintiff in his opposition memorandum but not set forth in Plaintiff's First Amended Complaint. See Pl.'s Am. Compl.; see also Pl.'s Mem. in Obj. to Defs.' Mot. to Dismiss. In Defendants' post-hearing filing on October 26, 2022, Defendants specifically consented to the Court considering Plaintiff's Exhibit B, which is a photograph of a blue plastic bag that Plaintiff alleges contains his actual, physical sports wagering tickets. (Defs.' Post-Hr'g Mem. in Supp. of Mot. to Dismiss, 1-2; see also Pl.'s Obj. to Defs.' Mot. to Dismiss (Pl.'s Obj. Mem.) (Ex. B)). As such, this Court will treat the following motion as a motion to dismiss and analyze the issues under that standard of review.

III

Analysis^[4]

Plaintiff's First Amended Complaint asserts a total of twenty-three claims for relief. (Pl.'s Am. Compl.) This Decision will analyze each count for the sake of clarity and completeness. This Court begins with Plaintiff's Count X: Breach of Contract. At the outset, this Court reiterates that, with the parties' consent, it will be considering Plaintiff's Exhibit B-the blue plastic bag-and will apply the standard of review applicable in deciding a Motion to Dismiss. However this Court does note that Plaintiff failed to timely submit the blue plastic bag to Defendants for review of the winning tickets as required by the May 2019 House Rules. See May 2019 House Rules § 1.B.d. ("Expiration of any winning ticket will be one year from the date of the conclusion of the last event on the wager.")

A

Count X: Breach of Contract

Defendants argue that Plaintiff's breach of contract claim is "predicated on a legally flawed theory that the R.I Lottery somehow breached and/or otherwise violated its own agency Rules and Regulations." (Defs.' Mem. in Supp. of Mot. to Dismiss (Defs.' Mem.) 12.) Defendants also argue that this Court already ruled that the "contractual requirement stating '[n]o winning wager will be paid without the customer copy of the wagering ticket' has the force of law[.]'" Id. at 13 (quoting Decision at 5).

Plaintiff counters Defendants' position, first by arguing that Plaintiff can now produce the tickets, and thus, Defendants' argument is now moot. (Pl.'s. Mem. in Obj. to Defs.' Mot. (Pl.'s Obj. Mem.) 10.) Plaintiff avers that the May 2019 House Rules call only for the production of the original tickets, and nowhere in the May 2019 House Rules "does it state the tickets produced need to be legible, readable, whole, complete, or otherwise." Id. As evidence, Plaintiff offers Exhibit B, which is a photograph of a blue plastic bag that Plaintiff alleges contains the sports wagering tickets, albeit "unreadable, illegible, incomplete, or otherwise defective." Id. at 11. Plaintiff also argues that this Court must "consider Defendants' duties and obligations under the Rhode Island Lottery Rules and Regulations, as these too, carry the force of law." Id. at 11 n.1.

This Court previously dismissed Count III of Plaintiff's Complaint for breach of contract. (Decision 8-9.) This Court determined that Plaintiff failed to point to any cognizable facts that could support a breach of contract claim because it could not produce its winning tickets. Id. Now Plaintiff argues he does...