New Suffolk Downs Corp. v. Rockingham Venture, Inc.

• Decision Date: 02 April 1987
• Docket Number: Civ. No. 87-59-D.
• Citation: 656 F. Supp. 1190
• Parties: NEW SUFFOLK DOWNS CORP. v. ROCKINGHAM VENTURE, INC.
• Court: U.S. District Court — District of New Hampshire

656 F. Supp. 1190

NEW SUFFOLK DOWNS CORP. v. ROCKINGHAM VENTURE, INC.

Civ. No. 87-59-D.

United States District Court, D. New Hampshire.

April 2, 1987.

Hill, Wynne, Troop & Meisinger by Louis M. Meisinger, C. Dennis Loomis, Los Angeles, Cal., Lynch, Brewer, Hoffman & Sands by Alan R. Hoffman, Ann Hoffman, Boston, Mass., Sheehan, Phinney, Bass & Green, P.A. by Douglas G. Verge, Manchester, N.H., for New Suffolk Downs Corp.

Devine, Millimet, Stahl & Branch by Richard C. Nelson, Daniel J. Callaghan, Manchester, N.H., for Rockingham Venture, Inc.

OPINION AND ORDER

DEVINE, Chief Judge.

Horse racing, the closely regulated "sport of kings",¹ is the source of this litigation. Impetus thereto is said to arise from the federal statute known as the "Interstate Horseracing Act of 1978" ("Act"), 15 U.S.C. §§ 3002-3007. The plaintiff's motion for partial summary judgment is before the Court.² The relief sought is by way of injunction and declaratory judgment.

Plaintiff New Suffolk Downs Corporation ("Suffolk") operates a thoroughbred horse racing track in Massachusetts. Defendant Rockingham Venture, Inc. ("Rockingham"), operates a horse racing track in New Hampshire. The New Hampshire track is geographically located approximately thirty miles from the Massachusetts track.

This action was initially filed in the United States District Court for the Central District of California, from whence it has been transferred. Originally named as a defendant, in addition to Rockingham, was Oak Tree Racing Association, Inc. ("Oak Tree"), a California corporation which conducts horse races at Santa Anita Park in that state. Another initially named defendant was Breeders' Cup Limited ("Breeders"), which had entered into a contract with Oak Tree to run certain races at Santa Anita Park. A preliminary injunction issued by the California federal court was stayed on expedited appeal by the Ninth Circuit; subsequently, Oak Tree and Breeders were dismissed from the litigation, and the amended complaint names only Rockingham as a party defendant.

The original action sought to prevent Oak Tree and Breeders from allowing Rockingham the opportunity to simulcast and permit off-track betting on the so-called "Breeders' Cup" races from Santa Anita Park on November 1, 1986. Suffolk claimed that its consent to Rockingham to permit such activity was a condition precedent under the Act to the permission afforded Rockingham by Oak Tree and Breeders to simulcast and permit off-track betting on such races. As those races have been held, it would appear on its face that this lawsuit is moot, but I find that the litigation presents issues which are not moot, as they are "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Otherwise stated, "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975); cited and quoted in Anderson v. Cryovac, Inc., 805 F.2d 1, 4 (1st Cir.1986), and Pallazola v. Rucker, 797 F.2d 1116, 1129 (1st Cir.1986).

Rockingham has in the past, and indicates that it will in the future, run off-track betting on races conducted at tracks which are not located in New Hampshire. Suffolk contends that the Act prevents Rockingham from doing so unless it gets prior consent from Suffolk and that if such consent is withheld Rockingham may not conduct such off-track betting operations. More importantly, Suffolk here contends that the Act gives to it an implied private right of action to enforce its mandates. Before examining these contentions, the Court believes it wise to detail the primary interest of the individual states in the regulation of gambling with respect to horse racing.

Before discussing the issues, we wish to point out that we have stated on a prior occasion that participation in horse racing is "a privilege such as the State may grant or withhold at pleasure.

Horse racing is a `private enterprise which, of its nature, is not only privileged, but which presents a social problem properly coming under the exercise and jurisdiction of the police power of the State and which requires strict regulation and supervision.'" North Hampton etc. Assn. v. Commission, 94 N.H. 156, 159, 48 A.2d 472, 475 (1946). The Commission's regulatory powers, therefore, are to be distinguished from those of other regulatory agencies because horse racing is "an activity which the State may prohibit altogether, not one which it may merely regulate." Ratti v. Hinsdale Raceway, 109 N.H. 270, 272, 249 A.2d 859, 861 (1969).

Kelly v. New Hampshire Pari-Mutuel Comm'n, 127 N.H. 298, 300-01, 499 A.2d 995, 997 (1985).

Indeed, Congress expressed its awareness of the primary interest of the individual states in regulation of betting on horse races in the following findings set forth in its preamble to the Act:

(1) the States should have the primary responsibility for determining what forms of gambling may legally take place within their borders;

....

but (3) in the limited area of interstate off-track wagering on horseraces, there is a need for Federal action to ensure States will continue to cooperate with one another in the acceptance of legal interstate wagers.

15 U.S.C. § 3001(a).

In simplified overview, the Act seeks to bolster such cooperation by prohibiting off-track betting unless consent is obtained from the racetrack at which the race to be bet upon is held ("host racing association"³); the racing commission with jurisdiction over that track ("host racing commission"⁴); and the racing commission with jurisdiction over the location at which the off-track betting is to take place ("off-track racing commission"⁵). 15 U.S.C. § 3004(a). In addition, the off-track betting office⁶ "shall obtain the approval of ... (A) all currently operating tracks within 60 miles of such off-track betting office; and (B) if there are no currently operating tracks within 60 miles then the closest currently operating track in an adjoining state." 15 U.S.C. § 3004(b)(1)(A), (B).

Excepted from such approval are off-track betting offices which are located in states "with at least 250 days of on-track parimutuel horseracing a year which may accept interstate off-track wagers for a total of 60 racing days and 25 special events a year" without procuring such approval. 15 U.S.C. § 3004(b)(2).

The Act vests its enforcement by medium of civil actions brought by the host state,⁷ host racing association, or horsemen's group.⁸ 15 U.S.C. § 3006(a). Concurrent jurisdiction over such civil actions is had in both federal and state courts. 15 U.S.C. § 3007. If damages are sought, they are to be computed based on formulas derived from the betting systems in use at either the host racing system or the off-track betting office. 15 U.S.C. § 3005.

Although it is neither a host state, a host racing association, or a horsemen's group as hereinabove defined in the Act, Suffolk contends that it is entitled to assert an implied private right of action to enforce the provisions of the Act. Its argument is based on the general principles set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), which in relevant terms sets forth the test as follows:

"In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' ..., that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law." ... (emphasis in original) (citations omitted).

Latinos Unidos de Chelsea v. Secretary of Housing, 799 F.2d 774, 792 (1st Cir.1986).

However, in considering a claim that Congress intended to create a private right of action in a federal statute which omits from its terms the party asserting such right of action, the key to the inquiry is the intent of the legislature. Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622-23, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliffe Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Universities Research Ass'n v. Coutu, 450 U.S. 754, 770, 101 S.Ct. 1451, 1461, 67 L.Ed.2d 662 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). Statutes which create entirely new rights are obviously not enacted in the context in which implied private remedies have already been recognized by the courts. Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 541, 104 S.Ct. 831, 841, 78 L.Ed.2d 645 (1984). The Court looks first to the statutory language, with particular emphasis on the provisions made therein for enforcement and relief, and then reviews the legislative history and other traditional aids of statutory interpretation in seeking to determine congressional intent. Middlesex County Sewerage...