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Binning v. Bally Gaming, Inc.

United States District Court, N.D. Mississippi, Oxford Division

December 16, 2016




         Presently before the court is a motion to dismiss for failure to state a claim filed by Defendants, Bally Gaming and Caesars Entertainment Corporation. Upon due consideration of the motion, response, and complaint, the court is ready to rule.

         Facts and Procedural Background

         The plaintiff, Randy Binning, is a professional gambler from Las Vegas, Nevada. In April of 2013, Binning allegedly learned from other casino patrons that keno machines at various Harrah's casinos were offering better payouts than was usual. With knowledge of this information, Binning traveled first to a Harrah's casino in Illinois and played their machines for a period of approximately eighteen days, winning a large sum of money. During that time, Binning allegedly discovered that the Harrah's casinos located in Tunica, Mississippi, had these same keno machines, and that they too were paying out unusually high amounts.

         Binning soon left Illinois and made his way down to Mississippi. While in Tunica, Binning played the machines for about four days and, again, won a significant amount of money. Casino personnel, however, discovered the unusually large payouts and disconnected the machines. Because he could no longer play, Binning departed Mississippi and returned to his home in Nevada.

         Sometime after disconnecting the machines, casino personnel reported to the Mississippi Gaming Commission (“MGC”) that better payouts had been discovered, and that the casino and Bally Gaming, Inc. (“Bally”), the manufacturer of the machines at issue, were conducting their own investigations regarding the unusual activity. MGC proceeded to conduct its own independent investigation into the unusual activity reported by the casino and, as a result of that investigation, MGC Agent Amesha Gross swore out an affidavit for Binning's arrest. Consequently, on June 27, 2013, a warrant was issued for Binning's arrest for the alleged violation of Section 75-76-301(g) of the Mississippi Code, charging him with manipulating the keno machines to affect the payouts.

         About a month after the arrest warrant was issued, Bally submitted its investigative report to MGC finding as follows:

During the review there was no evidence supporting that any of the software engineers involved in the coding of the [machines] had any knowledge of the coding error during the time the game [] was developed or tested. What was revealed during the review was [that] the issue developed through an inadvertent error. . . . Our review did not reveal any evidence that a [Bally] software engineer was in contact with any person of interest in the current investigation.

         Binning was eventually arrested pursuant to the aforementioned warrant on January 4, 2014. Almost a month later, on February 3, 2014, a grand jury in the Circuit Court of Tunica County, Mississippi, indicted Binning on the charges contained within the warrant. However, on June 30, 2015, the Tunica County Circuit Court dismissed the charges against Binning, finding it was unable to conclude that his actions “constitute[d] criminal acts under Mississippi law, ” and pointing to the dismissal of similar charges that had been filed against Binning in Illinois.

         Almost a year later, on June 27, 2016, Binning filed the instant suit. He asserts a state law claim for malicious prosecution against defendants MGC, Gross, Bally and Caesars Entertainment Corporation (“Caesars”).[1] Defendants Bally and Caesars filed this motion to dismiss for failure to state a claim upon which relief can be granted.

         Standard of Review

         A complaint must contain a “short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). For a plaintiff to survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss for failure to state a claim tests both the legal and factual sufficiency of a plaintiff's complaint. Id. at 679. Though motions to dismiss are “viewed with disfavor and [are] rarely granted, ” the burden rests on the plaintiff to prove her claim should go forward. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 497 (5th Cir. 2000).

         To meet her burden, a plaintiff cannot rest merely on “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, a plaintiff must demonstrate that facts pleaded allow the court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 556. In deciding whether a plaintiff has met her burden, the court “must accept as true all of the allegations contained in the complaint, ” except for those allegations which are mere legal conclusions. Ashcroft, at 678. Moreover, the court views all well-pleaded facts in the light most favorable to the plaintiff. Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 ...

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