Summary
listing factors to consider when making a certification to the Indiana Supreme Court determination
Summary of this case from Valley Forge Renaissance, LP v. Greystone Servicing Corp., Inc.Opinion
NA 02-CV-0209-SEB/WGH
January 10, 2003
Plaintiff Johnnie Brown has filed suit against Defendant Argosy Gaming Company, L.P. ("Argosy"), seeking both injunctive relief and damages, based on Argosy's allegedly negligent failure to bar Ms. Brown's husband from its gaming facilities, despite his routine and substantial monetary losses, thereby causing financial, physical, and emotional harm to Ms. Brown. In the absence of directly applicable Indiana case law, Ms. Brown moved for this Court to certify to the Indiana Supreme Court a question of state law regarding whether Indiana recognizes the duty on which her cause of action is based and for a preliminary injunction mandating that Argosy bar her husband from its facilities. Argosy opposed these motions and responded with its own motion to dismiss the Complaint. For the reasons explained in detail below, we DENY Ms. Brown's Motion to Certify the Question of State Law to the Indiana Supreme Court, we DENY her Motion for Preliminary Injunction, and we GRANT without prejudice Argosy's Motion to Dismiss.
Ms. Brown's Motion to Certify Question of State Law to Indiana Supreme Court
Ms. Brown moves to certify to the Indiana Supreme Court a question regarding the alleged duty that provides the legal basis for her cause of action. Indiana Rule of Appellate Procedure 64 provides that a district court sitting in Indiana may certify a question of Indiana law to the Indiana Supreme Court "when it appears to the federal court that a proceeding presents an issue of state law that is determinative of the case and on which there is no clear controlling Indiana precedent."
Cautioning that certification must be approached "with circumspection," the Seventh Circuit in State Farm Mutual Automobile Insurance Co. v. Pate, 275 F.3d 666 (7th Cir. 2001), set out a number of factors lower courts should use to determine whether to refer a question to the state's highest court:
First, we said that the federal court ought to weigh the degree of uncertainty that exists on the state law issue. We noted that, in the past, our cases have directed that a court also consider whether the issue presents a matter of public concern, whether the issue is likely to recur, whether the issue is outcome determinative, and whether the state supreme court has had an opportunity to address the issue in other cases. We must also consider whether the supreme court of the state would consider the issue an important one in the growth of the state's jurisprudence and whether resolution of the issue definitively will benefit future litigants or will almost exclusively affect the citizens of the state. Notably, we also said that, in determining whether an intrusion on the time of our colleagues on the state court is justifiable, we shall be more inclined to certify the question when the intermediate courts of the state are in disagreement on the issue or the issue is one of first impression for the court of last resort. On the other hand, we have said that fact specific issues, as well as issues upon which there is no serious doubt or that are not dispositive of the case, are not candidates for certification.
Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 638-39 (7th Cir. 2002), citing Pate, 275 F.3d at 672-73.
Plaintiff filed a negligence action against Argosy, essentially claiming that Argosy breached a duty of care (presumably either to Ms. Brown or to her husband) by failing to exclude Ms. Brown's husband from its gaming facilities and thereby causing emotional and financial harm to Ms. Brown. Ms. Brown requests that this court certify to the Indiana Supreme Court the following question of state law:
Whether a wife has a cause of action against the casino where the husband is a compulsive gambler, where the husband has incurred substantial gambling losses which occurred after the wife made a request of the casino to bar her husband and which has resulted in serious emotional and financial distress to the family.
Pl.'s Motion to Certify Question of State Law, at unnumbered 1. Ms. Brown contends that this question has not yet been answered by Indiana courts, and is therefore ripe for certification.
We find that the factors outlined by the Seventh Circuit in Pate, as well as principles of federalism and comity, counsel against certifying this question to the Indiana Supreme Court. Ms. Brown presents an extremely fact-sensitive question-one which no Indiana court has ever addressed. In other words, there presently exists no disagreement among Indiana courts on this issue. Although the answer to this question will certainly impact state residents by creating an as-yet unrecognized duty on the part of gaming establishments, the answer to this question would not necessarily apply to future litigants whose circumstances differ from those reflected in the question. Moreover, although the imposition of such a duty relates to an issue of public concern (one already addressed at length by Indiana regulations governing gaming enterprises and their operations), the Indiana legislature by its silence has declined to impose the very duty that Ms. Brown advocates in this case. While certification of the proposed question may impact future litigation, it would also represent a substantial departure from the present state law governing this area and would amount to an end-run around the legislative process. Guided by the Seventh Circuit's admonition in Pate, we decline to call upon the time and resources of the Indiana Supreme Court for this purpose. Accordingly, we DENY Ms. Brown's Motion to Certify the question to the Indiana Supreme Court. Ms. Brown's Motion for Preliminary Injuction Ms. Brown seeks a preliminary injunction, requiring Argosy to exclude her husband from its gambling establishments. A party seeking a preliminary injunction must show that: 1) it has a reasonable likelihood of success on the merits of the underlying claim; 2) no adequate remedy at law exists; and 3) it will suffer irreparable harm if the preliminary injunction is denied. Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). If a party can satisfy this threshold inquiry, then the court must evaluate whether the irreparable harm will outweigh the harm suffered by the opposing party if the preliminary injunction is granted and whether the preliminary injunction will harm the public interest. Id.
Plaintiff also contends that Picadilly, Inc. v. Colvin, 519 N.E.2d 1217 (Ind. 1988), an Indiana dram shop decision, supports the existence of Plaintiff's cause of action. However, the leap from dram shop liability to gaming establishment liability is too great to justify the imposition on the resources of the Indiana Supreme Court that certification would create.
In Merrill v. Trump Indiana, Inc., 2002 WL 1307304 (N.D.Ind. 2002), another Indiana district court discussed this legislative silence, particularly whether Indiana recognized a duty on the part of a casino to evict a compulsive gambler. The court noted that "the Indiana courts have never recognized a common law duty in a similar situation," and inferred from the regulatory silence that "the Indiana legislature did not wish to create such." Id. at *5. While the decision of the court in Merrill does not govern our analysis in this case, we find it instructive and agree with its ultimate conclusion.
We find that Ms. Brown has not demonstrated a reasonable likelihood of success on the merits of her claim. There is simply no basis in Indiana law to support Ms. Brown's purported cause of action. As discussed earlier, Indiana does not recognize a duty on the part of a gaming enterprise to evict a compulsive gambler, notwithstanding the financial or emotional harms that excessive gambling activities may inflict upon the gambler or his loved ones. In the absence of any legal authority for the existence of this duty, we cannot conclude that Ms. Brown has a reasonable likelihood of prevailing on her claim for its breach. Consequently, Ms. Brown's Motion for Preliminary Injunction is DENIED.
Argosy's Motion to Dismiss
A party moving for dismissal under Federal Rule of Civil Procedure 12(b)(6) must show that "the pleadings themselves fail to provide a basis for any claim for relief under any set of facts." Owner-Operator Independent Drivers Ass'n v. Mayflower Transit, Inc., 161 F. Supp.2d 948 (S.D. Ind. 2001), quoting Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986). Under this analysis, we examine only the sufficiency of the complaint, not the merits of the lawsuit. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998); Zoghlin v. Renaissance Worldwide, Inc., 1999 WL 1004624, at *3 (N.D.Ill. 1999). Dismissal is appropriate only if it appears to a certainty that the plaintiff cannot establish any set of facts that would entitle him to the relief sought. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). Here, Ms. Brown bases her claim for relief on a legal duty that, as we have now repeatedly stated, Indiana does not recognize. There is no set of facts which would entitle Ms. Brown to relief based on this theory. Therefore, Argosy's Motion to Dismiss is GRANTED without prejudice.
Conclusion
Plaintiff Johnnie Brown filed a negligence action against Defendant Argosy, seeking both injunctive relief and damages, based on Argosy's alleged breach of a duty to exclude Ms. Brown's husband, a compulsive gambler, from its gaming establishments and alleged ongoing harm financial, physical, and emotional harm caused to Ms. Brown. Plaintiff sought certification of a question of state law regarding the basis for her cause of action. Argosy responded with a Motion to Dismiss. For the reasons explained in detail above, we find that 1) the proposed state law question is inappropriate for certification to the Indiana Supreme Court; 2) Ms. Brown has not demonstrated a reasonable likelihood of success on the merits of her lawsuit, and therefore is not entitled to injunctive relief; and 3) because Indiana does not recognize a cause of action for the alleged breach of duty in this case, Ms. Brown has not stated a claim upon which relief may be granted. Accordingly, Ms. Brown's Motion to Certify the Question of State Law to the Indiana Supreme Court is DENIED, her Motion for Preliminary Injunction is also DENIED, and Argosy's Motion to Dismiss is GRANTED without prejudice.