Schuster v. Harbor

• Decision Date: 09 July 2020
• Docket Number: Civil Action No. 19-cv-11679-ADB
• Citation: 471 F.Supp.3d 411
• Parties: A. Richard SCHUSTER, on behalf of all others similarly situated, Plaintiff, v. Encore Boston HARBOR, Wynn MA, LLC and Wynn Resorts, Ltd., Defendants.
• Court: U.S. District Court — District of Massachusetts

471 F.Supp.3d 411

A. Richard SCHUSTER, on behalf of all others similarly situated, Plaintiff,

v.Encore Boston HARBOR, Wynn MA, LLC and Wynn Resorts, Ltd., Defendants.

Civil Action No. 19-cv-11679-ADB

United States District Court, D. Massachusetts.

Signed July 9, 2020

Joshua N. Garick, Law Offices of Joshua N. Garick, P.C., Reading, MA, for Plaintiff.

Joshua P. Dunn, Wayne F. Dennison, Brown Rudnick LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON MOTION TO DISMISS

BURROUGHS, D.J.

Plaintiff A. Richard Schuster ("Plaintiff") filed this putative class action challenging practices at the Encore Boston Harbor casino ("Encore"). [ECF No. 13 ("Am. Compl.") ]. Plaintiff brings a host of state-law claims, including breach of contract (Count I), unjust enrichment (Count II), promissory estoppel (Count III), conversion/theft (Count IV), and unfair and deceptive business practices under Massachusetts General Laws Chapter 93A (Count V). [Id. ¶¶ 62–97]. In particular, Plaintiff challenges Encore's practices around Blackjack payouts and slot machine winnings at the casino's redemption machines. [Id. ¶¶ 2, 4]. Currently pending before the Court is Wynn MA, LLC and Wynn Resorts, Ltd.’s (collectively, "Wynn") motion to dismiss. [ECF No. 16].¹ For the reasons set forth below, Wynn's motion to dismiss, [ECF No. 16], is GRANTED in part and DENIED in part.

I. BACKGROUND

A. Factual Background

For purposes of this motion, the relevant facts are drawn from Plaintiff's amended complaint, [Am. Compl.], and viewed in the light most favorable to Plaintiff. Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).

On July 11, 2019, Plaintiff visited Encore, a casino located in Everett, Massachusetts. [Am. Compl. ¶¶ 7, 43].² While visiting the casino, Plaintiff played several table games, including Blackjack. [Id. ¶ 44]. At the Blackjack table, the dealer used eight decks of cards, dealt the cards face up, and players were not allowed to touch the cards. [Id. ¶¶ 45, 47]. The Blackjack tables did not have a display notifying players that "even money insurance" wagers were void. [Id. ¶ 46]. Further, the Blackjack tables paid out at 6:5 when a player was dealt "a blackjack," which Plaintiff knows because he was dealt several "blackjacks" during play and received a 6:5 payout for each. [Id. ¶ 49]. Plaintiff alleges that the 6:5 payout and other aspects of the play at the Blackjack tables at Encore do not comply with the Massachusetts Gaming Commission's ("MGC") approved Blackjack rules. [Id. ¶¶ 20–29]. Specifically, Plaintiff claims that according to the MGC's rules, a 6:5 payout on a blackjack is allowed only when the 6:5 variation of the game is offered, and that Encore does not offer this variation. [Id. ¶¶ 22–29]. In addition, Plaintiff alleges that the MGC's rules require that the layout on Encore Blackjack tables that offer a 6:5 payout state that "even money insurance" wagers are void. [Id. ¶ 46].

Plaintiff also played slot machines during his visit to Encore. [Am. Compl. ¶ 50]. When he cashed out after playing, the slot machines issued tickets for the amount of his winnings. [Id. ¶¶ 33, 51]. Plaintiff attempted to cash these tickets at redemption machines located throughout the casino, but the machines only paid winnings in whole dollar amounts and then issued redemption tickets for the remaining coins that were due to Plaintiff. [Id. ¶¶ 34–36, 52]. The machines did not indicate how or where Plaintiff could redeem the new tickets for these coins. [Id. ¶¶ 36–37]. Plaintiff either used these new tickets by returning to the slot machines or discarded them when he left Encore, which Plaintiff alleges added to his overall losses. [Id. ¶ 53]. Plaintiff claims that many of these tickets for coins are never cashed by casino customers, and that Encore's practice of issuing these tickets for coins is unfair and deceptive because it entices customers to return to slot machines to continue playing rather than giving them the money they are owed. [Id. ¶¶ 38, 40].

B. Procedural Background

On July 15, 2019, Plaintiff filed an action in Middlesex County Superior Court alleging breach of contract, unjust enrichment, promissory estoppel, and conversion/theft based on gaming practices at the Encore casino, which is run by Wynn. [ECF No. 1-2 ("Complaint" or "Compl.") ]. That same day, Plaintiff served Wynn a formal demand letter pursuant to Massachusetts General Laws Chapter 93A and a draft of an amended complaint that added a Chapter 93A claim. [ECF No. 29-1]. On August 5, 2019, Wynn removed the case pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d). [ECF No. 1]. On August 28, 2019, Plaintiff amended the complaint by right and added his Chapter 93A claim. [Am. Compl.]. On September 11, 2019, Wynn filed the instant motion to dismiss. [ECF No. 16]. On October 21, 2019, Plaintiff opposed the motion, [ECF No. 26], and on November 1, 2019, Wynn replied to Plaintiff's opposition, [ECF No. 29].

II. LEGAL STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019). "[D]etailed factual allegations" are not required, but the complaint must set forth "more than labels and conclusions," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and must contain "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory," Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005) ). The alleged facts must be sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

"To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A determination of plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ " Id. at 44 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011) ). "The plausibility standard invites a two-step pavane." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Grajales, 682 F.3d at 45 ). First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012) ). Second, the Court "must determine whether the remaining factual content allows a ‘reasonable inference that the defendant is liable for the misconduct alleged.’ " Id. (quoting Morales-Cruz, 676 F.3d at 224 ).

III. DISCUSSION

Wynn argues that the MGC's Rules of Blackjack allow a payout at 6:5 odds on "a blackjack" without using the 6:5 variation, as long as the payout odds are displayed to casino customers. [ECF No. 17 at 4]. As to Plaintiff's slot machine allegations, Wynn states that the redemption ticket issued for the remaining change from slot machine winnings can be redeemed at any of the casino's cashier windows. [Id. at 12–13].

A. Consideration of Extrinsic Documents

As an initial matter, the parties disagree about what extrinsic documents the Court may consider in ruling on the motion to dismiss. Wynn asks that the court take judicial notice of (1) the MGC's Rules of Blackjack, [ECF No. 17-1 ("MGC Rules") ]; (2) the MGC Investigation and Enforcement Bureau's ("IEB") July 18, 2019 report regarding Plaintiff's complaint ("IEB Report"), [ECF No. 17-2]; and (3) the transcript of the MGC's July 18, 2019 public meeting ("Meeting Transcript") in which the MGC reviewed the IEB's preliminary findings as to Plaintiff's claims, [ECF No. 17-3]; see [ECF No. 17 at 2 n.2, 6 n.7]. Plaintiff concedes that the Court's may consider the MGC's Rules of Blackjack, [ECF No. 26 at 12], but opposes Wynn's requests regarding the IEB Report and the Meeting Transcript, [id. at 12–14].

When reviewing a motion to dismiss under Rule 12(b)(6), the Court "may consider ‘documents the authenticity of which are not disputed by the parties; ... documents central to plaintiffs’ claim; [and] documents sufficiently referred to in the complaint.’ " Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) ). "This is true even when the documents are incorporated into the movant's pleadings." Id. (citing Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998) ). A court, however, "will only take into consideration the existence and contents" of such documents and "will not assume the truth of the findings asserted therein ...." Barnstable Cty. v. 3M Co., No. 17-cv-40002, 2017 WL 6452245, at *5, 2017 U.S. Dist. LEXIS 207414, at *15 (D. Mass. Dec. 18, 2017). For example,

[w]hile a legislative report is a public record properly subject to judicial notice of its ‘existence and contents, this does not mean that the court must accept the findings in the report as indisputable truth; the findings are merely evidence of the facts asserted .... The credibility of such evidence will vary according to the thoroughness and impartiality with which the committee conducted its investigation, the fairness of its procedure, [and] the fullness of opportunity it afforded accused

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