Opinion
No. 2:01-cv-113
September 26, 2002
OPINION
Plaintiff Elizabeth Miller claims that she won the primary progressive jackpot on a nickel Wheel of Fortune video slot machine at the Kewadin Shores Casino in St. Ignace, Michigan. Plaintiff claims that defendant Sodak Gaming, Incorporated (Sodak), owes her the jackpot amount plus interest. Sodak monitors the progressive system from a central computer location. At the time of this incident, Sodak's monitoring facility was located in Rapid City, South Dakota. Sodak does not own or operate the individual slot machines nor is Sodak responsible for paying jackpots.
Sodak has relocated to Reno, Nevada.
Plaintiff had been gambling at the casino, losing approximately $2,300, for two and one half days straight before she alleges she won the progressive jackpot. During the early morning hours of January 4, 2001, plaintiff was playing the Wheel of Fortune video slot machine. At approximately 6:30 am, plaintiff pushed the spin button on the Wheel of Fortune machine. Plaintiff describes what happened next as outward signs that she won the progressive jackpot on her spin. After pushing the spin button the wheels did not spin, plaintiff heard "earth-shattering loud music," the reels did not move, the dollar amount stopped progressing and flashed once, a red light on the top of the machine blinked, small lights on the accompanying machines were blinking, and she was congratulated by casino employees and patrons. Plaintiff's dep. at 36, 42-44, 52, 57-58, 61. Plaintiff stated that a casino technician told her to move. He then opened the door to the machine and stopped the music. The technician told her that the machine had malfunctioned, and plaintiff did not win. Plaintiff refused to believe that she did not win. She stayed by the machine until she was escorted out of the casino by security. Plaintiff summed up the reasons why she feels she won the progressive jackpot:
Q. The machine only is limited to the fact that the red light on top of the machine came on?
A. Yes.
Q. The fact that the machine blared music?
A. Yes.
Q. And the fact that the progressive amount on the progressive meter froze?
A. Yes, and the fact that the lights on every machine on the carousel were also going, except for their tower lights. Only mine was going.
Q. So, as it pertains —
A. The whole thing lit up, the whole six rigmaroles. Every light on it that could go did.
Q. So that covers everything with respect to what you saw, heard or observed on the machine that you were playing on or the machines adjacent to yours that led you to conclude that you won a primary progressive jackpot?
A. Yes. That doesn't include what comments were made to me by employees.
Plaintiff claims that she was congratulated by two employees, and that every person working in the casino and the few patrons in the casino all gathered around her.
Plaintiff's dep. at 94-95.
Prior to the alleged progressive jackpot win, plaintiff had won a $50.00 jackpot on the Wheel of Fortune machine at approximately 6:00 am. After pushing the spin button the music blared, the lights came on, and the machine froze. Plaintiff alleges that the casino technician opened and reset the machine with his card. Twenty minutes later plaintiff alleges that the same thing happened again, but this time she won free bonus spins. However, the casino refused to acknowledge her win. Again, the plaintiff alleges that the casino technician opened and reset the machine. Plaintiff never received the free spins that she had allegedly won.
Both the Sault Tribal Gaming Commission and the National Indian Gaming Commission (NIGC) conducted investigations of plaintiff's claim that she won the progressive jackpot. Both commissions concluded that plaintiff did not win the progressive jackpot. The Sault Tribal Gaming Commission sent plaintiff a letter dated May 30, 2001. The letter stated in part:
This investigation consisted of interviewing Casino employees.. the National Indian Gaming Commission Field Investigator. Surveillance tapes were reviewed and the motherboard was sent to Gaming Laboratories, Inc. for forensic review. The machine in question did not go into the jackpot mode, which would have triggered the monitoring systems in South Dakota and on site. The Progressive meters continued increasing in dollars and did not reset to $100,000, as it should have if a jackpot had been hit. Based upon these facts we have determined that there was no winning jackpot combination on slot machine 311984 (a five-reel, nickel wide areas progressive I.G.T. "Wheel of Fortune" Video Slot Machine).
Exhibit 22, defendant's brief, docket #50. The National Indian Gaming Commission similarly concluded:
To summarize, the patron claims to have won a primary jackpot in the amount of $1,571,862.00. Employee eyewitness accounts do not support the claim that the patron had the necessary winning combination on the slot machine that would have entitled her to the progressive jackpot. In addition, NIGC review indicates the machine was not locked up in a jackpot mode, the tower lights were not illuminated, the progressive meters did not stop incrementing, and the jackpot amount did not reset to $100,000. Neither the progressive slot system data from the monitoring site in South Dakota nor the casino's on-site slot monitoring system received a signal that the primary jackpot was won by the patron.
Exhibit 23, defendant's brief, docket #50.
Plaintiff has asserted claims for breach of contract, breach of implied contract, promissory estoppel and unjust enrichment. Defendant filed a motion to dismiss and for summary judgment. To resolve the issues presented, the undersigned believes that it is necessary to review the affidavits and materials filed by the parties. Therefore, defendant's motion to dismiss will be treated as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present "specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed.R.Civ.P. 56(e)). While the evidence must be viewed in the light most favorable to the nonmoving party, a mere scintilla of evidence in support of the nonmovant's position will be insufficient.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 251-52 (1986). Ultimately, the court must determine whether there is sufficient "evidence on which the jury could reasonably find for the plaintiff."Id. at 252. See also Leahy v. Trans Jones. Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore. Owen. Thomas Co. v. Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).
Defendant asserts that the complaint should be dismissed because plaintiff cannot establish that the video display showed a required winning combination of five Wheel of Fortune symbols on the ninth line, plaintiff cannot establish that the game actually played, as opposed to malfunctioned, when she alleges that she won the jackpot, and plaintiff's alleged win was never verified as required by the Wheel of Fortune video slot machine rules.
A federal court sitting in a diversity action applies the substantive law of the state in which it sits. Klaxon Co.. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 469 (1941); Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 566 (6th Cir. 2001). Michigan applies principles of contract law to games of chance. Coleman v. Michigan, 77 Mich. App. 349, 258 N.W.2d 84 (1977); Workman v. Publishers Clearing House, 118 F.3d 457, 459 (1996). In Coleman, the Michigan Court of Appeals held that a lottery contestant that was mistakenly named as a prize winner was not entitled to the prize. The court concluded that the contestants were bound by the announced rules of the game for determining prize winners. Similarly, inWorkman the Sixth Circuit held that under Michigan law a sweepstakes contestant was bound by the rules of the game even where the plaintiff was not aware of the entire rules, when the plaintiff reasonably should have known the rules of the game.
In order to win the progressive jackpot, five Wheel of Fortune symbols must appear on the ninth line of the video display and a maximum bet must have been made. Plaintiff claims that when she pushed the spin button, the video reels never moved and that the video display was the same display that ended with her previous spin. Plaintiff cannot say for sure what was displayed, however, it is undisputed that plaintiff did not have five Wheel of Fortune symbols displayed on the ninth line. Every witness on this issue has testified that a winning combination of five Wheel of Fortune symbols was not present on the ninth line. Even plaintiff concedes that the video reel never spun. This alone is fatal to plaintiff's case. Plaintiff argues various theories of breach of contract claims and asserts that defendant should be held to only the stated rules of the game as indicated on the machine. Plaintiff, however, completely ignores the most prominent rule of the game, displayed on the front of the machine, indicating that a progressive jackpot is won when five Wheel of Fortune symbols appear on the ninth line. Plaintiff attempts to explain that the five Wheel of Fortune symbols do not need to be present to win the progressive jackpot. Plaintiff apparently wants to believe this, despite the clear indication otherwise on the machine, because someone told her that the five Wheel of Fortune symbols were not needed to hit the progressive jackpot. There is no evidence to support plaintiff's claim that a winning combination of five Wheel of Fortune symbols present on the ninth line is not necessary to win the progressive jackpot. In fact all the evidence is contrary to this contention. Defendant has submitted as an exhibit a photograph of an actual Wheel of Fortune machine after the progressive jackpot had been won with the winning combination displayed. In that photograph five Wheel of Fortune symbols are displayed on the ninth line of the video display, as indicated by the prominent marking on the exterior of the machine which sets forth what is required to win the progressive jackpot. Accordingly, because plaintiff never had a winning combination of five Wheel of Fortune symbols on the ninth line, it is clear that defendant is entitled to summary judgment on this simple fact alone.
Further, defendant has submitted two expert reports that explain why plaintiff did not win the progressive jackpot. Both of these reports are not refuted by plaintiff. Robert Sertell, a 46- year veteran of the gaming industry, states that no primary progressive jackpot occurred at the time and date claimed by plaintiff. There exist a number of reasons why Mr. Sertell makes this conclusion. He explained that all the wide area progressive slot machines were linked to the Sodak monitoring site in South Dakota. Sodak monitors the functions of all machines twenty four hours a day every day of the year. The monitoring system records every event, even a breakdown. After review of the Sodak monitoring data during the relevant time period, there existed no indication of a primary progressive jackpot win. The data indicated that the jackpot rose even after plaintiff claims to have won the jackpot. Similarly, the Kewadin Shores Casino's independent monitoring system did not record a primary progressive jackpot win. All the slot machines in the casino are connected to an in-house slot data system which operates independently from the Sodak system. Three surveillance tapes were reviewed by Mr. Sertell. One of the tapes was of poor quality and not useful. Another tape was of poor quality, but showed "that the bright graphic that is customarily displayed prominently on the screen advising of a progressive jackpot wasnot present." The other tape was of good quality and showed plaintiff over a four hour period, conversing with casino personnel. The progressive meter on the machine continued to advance in the normal fashion. Mr. Sertell explains that this is evidence that a primary progressive jackpot did not occur. The candle light on top of the machine was not illuminated in the manner which would indicate a primary progressive jackpot. The graphic message " JACKPOT" was not present on the video monitor and the other Wheel of Fortune machines did not reset to $100,000 as they would have if the primary progressive jackpot occurred.
Mr. Sertell explains that a play of the game consists of a kickoff, spin and index. Kickoff is the time when all the slot machine's reels actually begin to move. Spin refers to the time that the reels are in motion and index is when the reels stop. According to plaintiff, the reels never began moving so no play of the game could have actually occurred. Without an actual play of the game, plaintiff could not have won the primary progressive jackpot.
Defendant's expert and employee, Jon D. Johnson, agrees with Mr. Sertell's assessment. Mr. Johnson has 12 years of experience in electronic communications and gaming machines. Mr. Johnson reviewed the video-tape evidence and determined that the machine was not in a jackpot or hand pay condition based on the visual indications: the red and white tower light or candle on top of the machine was not flashing in a manner indicating that the jackpot was won, the progressive meter was not locked up, accompanying machines did not reset to $100,000, but continued to increase in value, buttons on the panel toward the front of the machine were illuminated indicating that the machine was ready for the next bet, cash out or additional money in the Bill Validator or coin slot, and the screen did not say " JACKPOT Hand Pay Pending Please Call Attendant." Mr. Johnson indicates that the plaintiff reported that she did not have a winning combination displayed on the machine.
Further, Mr. Johnson stated that the monitoring systems in South Dakota maintained by Sodak and the Casino's own system did not recognize a jackpot win. The casino technician performed a last game recall which did not reflect a winning jackpot. Further, plaintiffs claim that behind the scenes casino staff could change the outcome of the game is not a true statement. The game is controlled only by the Random Number generator inside the EPROM. Only qualified Sodak or IGT technicians may access the logic board and EPROM. Any tampering with the EPROM would render the machine inoperable. Based upon his review of the evidence, Mr. Johnson concluded that plaintiff did not win the primary progressive jackpot.
Plaintiff has not presented any contradicting expert testimony, but argues that factual issues exist because creditable evidence does not support the expert's conclusions. Again, plaintiff focuses on the rules of the game. Plaintiff points out that no rule exists requiring the bulbs in the tower to blink or that the jackpot meter must freeze for the jackpot to be won. The fallacy in plaintiffs argument, of course, is that these events are only factors which lead to the expert opinion that plaintiff did not win the jackpot. Similarly, no rule apparently exists involving music playing or lights blinking in the manner plaintiff describes before a jackpot is won. However, as plaintiff fails to point out, there is a rule that five Wheel of Fortune symbols must be present on the ninth line to win the primary progressive jackpot. Plaintiff states in her responsive brief that we will never know if the machine displayed the winning jackpot because defendant did not test the machine until days later. That is an inaccurate statement because plaintiff claims that the reels never spun and concedes that five Wheel of Fortune symbols were not present on the ninth line. Further, plaintiff claims that no eyewitness actually saw her win the progressive jackpot. Plaintiff has, however, admitted that she did not hit the winning combination on the video display.
Plaintiff argues that the monitoring systems are inaccurate because there exists no record of her earlier $50.00 hand pay jackpot, or of the resetting of the machine after the $50.00 payout or after the alleged jackpot was won. Defendant explains that its monitoring system only makes references when the machine is entered and then reset. The slot technician at the casino does not have to open the machine to reset it. Edwin Sagataw testified that he reset the machine after the $50.00 hand-pay jackpot by inserting an employee card and turning a key. Further, according to defendant, only primary or secondary jackpots are recorded on defendant's monitoring system, not $50.00 hand pay jackpots. Finally, plaintiff claims that the time of the recorded events on the defendant's monitoring system and the casino's monitoring system are not identical. However, the systems are independent systems. Defendant has no control over the casino's monitoring system. Defendant indicates that no effort has been made to synchronize the clocks of the two monitoring systems. Plaintiff claims that defendant's monitoring system malfunctioned when the printer had a carriage fault between 6:38 a.m and 6:41 a.m. Plaintiff further contends that the casino failed to video tape all casino play as required by law. This claim is not relevant because defendant Sodak does not own or operate the casino. Despite plaintiff's attempts to discredit defendant's experts, plaintiff has no evidence which can refute defendant's evidence which clearly establishes that plaintiff did not win the primary progressive jackpot. Most importantly, plaintiff has conceded that she did not have the necessary winning combination of five Wheel of Fortune symbols as required by the rules of the game to win the primary progressive jackpot.
How a printer malfunction could possibly cause the monitoring system to fail is not explained by plaintiff. Plaintiff has not presented any evidence that the printer was essential to the way the monitoring system functioned.
Defendant argues that the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. § 2701, preempts plaintiff's state law claims. Defendant cites 25 U.S.C. § 2702, which states in part that the purpose of the IGRA is "to insure that gaming is conducted fairly and honestly by both the operator and players." The compact between the State of Michigan and the Sault Chippewa Tribe states "that patrons must look to the tribal government or to the federal government to resolve any issues or disputes with respect to the operations of the establishments." In this case, plaintiff is suing a private corporation, not the Sault Chippewa Tribe, under contract law. Even if this court were to accept defendant's argument, defendant concedes that plaintiff would still have the right to appeal the NIGC decision in this court. Accordingly, as defendant concedes, review would be under the arbitrary, capricious and abuse of discretion standard. Under the facts of this case, the outcome would be the same even if defendant is correct that plaintiff's contract claims are preempted.
Plaintiff has filed a motion to amend her complaint to add defendant's parent corporation IGT-North America as a defendant in this action. Leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). However, "a party must act with due diligence if it intends to take advantage of the Rule's liberality."United States v. Midwest Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995). The court may deny leave to amend a complaint where the amendment is brought in bad faith, will result in undue delay or prejudice to the opposing party, or is futile. Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert. denied, 116 S.Ct. 1354 (1996). Where discovery was closed, and the plaintiff requested to add new causes of action and new parties, without explanation for the delay in bringing the motion to amend the complaint, it was not an abuse of discretion to deny the plaintiffs motion to amend. Caldwell v. Moore, 968 F.2d 595, 599 (6th Cir. 1992). Plaintiff's motion is denied because it would be futile to allow her to amend her complaint based upon the facts of this case.
The court amended the case management order on July 15, 2002, to allow plaintiff to file a motion to amend her complaint to add an additional party.
Accordingly, defendant's motion for summary judgment will be granted and this case will be dismissed in its entirety. Plaintiff's motion to amend her complaint will be denied.