1964(c). Green’s injuries fall into three categories. First, Green claims that he suffered “trauma,
humiliation, emotional distress, and familial discord” from defendants’ activities. Next, Green
alleges non-specific personal injuries resulting from defendants’ credit extension policies and
bullying collection efforts. Finally, it appears Green seeks reimbursement for various illegal
gambling losses. None of these injuries constitute “injury to business or property.”

Regarding the first category of alleged injury, the Seventh Circuit has stated that “injury
to business or property” does not include personal injuries such as embarrassment, humiliation,
and emotional distress even if those personal injuries resulted in a pecuniary loss. Schiffels, 978
F.2d at 353; see also Berg v. First State Ins. Co., 915 F.2d 460, 464 (9" Cir, 1990). Regarding
Green’s second category of injury, a private plaintiff cannot recover under RICO for injuries
resulting from extortion or intimidation, including the economic aspects of such personal injuries.
Rylewicz v. Beaton Services, Ltd. 888 F.2d 1175, 1179 (7"" Cir. 1989). Lastly, losses associated
with the final category of alleged injury - Green's gambling debts - are similarly unrecoverable.
Courts consistently hold that private plaintiffs alleging injuries resulting from their own gambling
cannot establish “injury to business or property” under RICO. See Chaset v. Fleer/Skybox
International, LP, 300 F.3d 1083, 1087 (9°* Cir. 2002); Price v. Pinnacle Brand, Inc., 138 F.3d 602,
607 (5 Cir. 1998); Major League Baseball Props., Inc. v. Price, 105 F.Supp.2d 46 (E.D.N.Y 2000).
The reasoning of these courts makes good sense. When Green decided to gamble, he paid for
(and received) the opportunity to win. When that chance did not pay off, it did not mean that

he suffered a RICO property loss however.’ Green’s disappointment at not winning his bets does

‘Green appears to mistakenly equate property interest (i.e. the consideration tendered
during a gambling act) with property injury (i.e. lost opportunity to win as would be the case, for
example, with a “rigged” or fraudulent gambling mechanism).

4


demonstrate RICO standing, Green fails to state a cause of action under RICO.
STANDARD OF REVIEW

‘When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all
the well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in
favor of the plaintiff. Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7 Cir.
2002). If when viewed in the light most favorable to the plaintiff, the complaint fails to state a
claim upon which relief can be granted, the court must dismiss the case. See Fed.R.Civ.P.
12(b) (6); Gomez v. Ilinois State Board of Educ., 811 F.2d 1030, 1039 (7 Cir. 1987).

ANALYSIS

The Court must first determine whether Green has pled sufficient facts to establish RICO
standing. It is well established that a plaintiff must meet two basic requirements to bring a civil
suit under RICO. First, the alleged injury must be to the plaintiff's business or property, and not
personal in nature. Schiffels v. Kemper Financial Services Inc., 978 F.2d 344, 353 (7" Cir. 1992),
abrogated by Beck v. Prupis, 529 U.S. 494 (2000) (narrowing scope of a civil cause of action under
RICO but leaving intact Schiffels determination regarding compensable injuries under RICO);
Rylewicz v. Beaton Services, Ltd., 888 F.2d 1175, 1180 (7 Cir. 1989). Second, the defendant’s
alleged acts in violation of RICO must have proximately caused the plaintiff's injury. Holmes v.
Securities Investment Protection Corp., 503 U.S. 258 (1992). Defendants argue that Green’s
alleged injuries are not compensable under RICO because they are not to his “business or
property.” Defendants also argue that Green cannot allege proximate causation because Green's
gambling, not defendants’ alleged RICO violations, caused his injuries.

a. Injury to “business or property”

Only injuries to “business or property” are compensable under RICO. 18 U.S.C. §

3


Not constitute an “injury to property” sufficient to confer RICO standing. Chaset, 300 F.3d at at
1087; Price, 138 F.3d at 607. Thus, as Green has failed to allege a compensable injury, his RICO
claims cannot proceed.

b. Proximate causation

Even if Green’s gambling losses could be classified as injuries to “business or property,” his
losses are nonetheless unrecoverable because Green cannot demonstrate that these injuries were
proximately caused by the defendants’ alleged RICO violations. A plaintiff can only recover for
those damages directly caused by a defendant’s RICO violations. Holmes, 503 U.S. at 259. At
least two circuits have found that a plaintiff cannot establish proximate cause where the plaintiff
voluntarily and knowingly engages in the very RICO activities from which it later claims injury.
See In Re Mastercard, 313 F.3d 257 (5 Cir. 2002) (no proximate causation for group of internet
gamblers against credit card company that provided them credit to gamble online); see also Doug
Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3" Cir. 2000) (voluntary participation in
illegal but non-fraudulent gambling not compensable as plaintiff “can avoid any injury simply by
walking away.”).

Here, Green’s knowing and voluntary gambling interrupted the causal chain between
defendants’ alleged RICO violations and plaintiff's injuries. Defendants’ cannot be held
responsible for causing Green to loose his money. Nothing in Green’s complaint suggests that he
was anything but an independent actor who voluntarily chose to gamble away his lottery
winnings. Green cannot use RICO to avoid meeting obligations he voluntarily took on. See In re
Mastercard, 313 F.3d at 264. Also, Green does allege that defendants lied to him about his bets
or that he was swindled or defrauded out of money. Rather, all Green alleges is that he made a

conscious decision to borrow money from and place bets with the defendants. Green’s gambling

5


Minute Grder Fort ai
a
Wi United’ States District Court, Northern District of Illinois

Nae Magieelydee William J. Hibbler “than Assigned Judge
CASE NUMBER 02 C3514 DATE 8/20/03
CASE GREEN V. AZTAR CORPORATION, et al.
TITLE
[in the following box (a) indicate the party filing the motion, eg., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.]
Defendants’ Motion to Dismiss (Doc. #18)
DOCKET ENTRY:
(1) Qo Filed motion of [ use listing in “Motion” box above.]
2) Qo Brief in support of motion due
@) Q Answer brief to motion due___. Reply to answer brief due___.
(4) o Ruling/Hearingon____ssetfor_____ att
(5) oO Status hearing [held/continued to} [set for/re-set for]on___—setfor___—_at
(6) Qo Pretrial conference [held/continued to] [set for/re-set for]}on___——ssetfor_——sat_ Si
”) o Trial [set for/re-set for]on__at
(8) i) {Bench/Jury trial] [Hearing] held/continued toa
9) o This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

OOFRCP4(m) General Rule 21 OC FRCP41(@)(1) C FRCP41()(2).

(10)  @ [Otherdocket entry]. Defendants’ Motion to Dismiss (Doc. #18) is granted. Enter memorandum and
opinion. All other pending motions and dates are terminated as moot.

(11) a (For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.

No notices required. suber of nie

Notices mailed by judge's staff. AUG 22 2003
Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

SS

Copy to judge/magistrate judge.

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losses are nothing more than self-inflicted wounds. Accordingly, Green cannot establish chat
defendants proximately caused his injuries. As Green fails to meet RICO’s standing
requirements, his complaint must be dismissed.”
CONCLUSION

The Court finds that Green lacks standing to bring a RICO claim because Green’s injuries
are not compensable under RICO and Green has not demonstrated that defendants’ activities
proximately caused his injuries. Defendants’ motion to dismiss Green’s amended complaint is
therefore granted.

IT IS SO ORDERED.

PLo0 fox a HL

William J.
United States De ct Court

Because the Court concludes that Green has failed to allege RICO standing, the Court
need not offer any opinion regarding whether Green has sufficiently plead the elements of a
RICO claim.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
CHRISTOPHER GREEN, ) DOCKETED
Plaintiff, } AuG 2-2 2003
v. No.02 C3514
AZTAR CORPORATION, JONATHAN The Honorable William J. Hibbler
SWAIN and RONALDH. ANTOS, ——)
Defendants.

MEMORANDUM OPINION AND ORDER

In this RICO action, defendants Aztar Corporation and Jonathan Swain have filed a
motion to dismiss the plaintiffs complaint pursuant to Rule 12(b) (6) of the Federal Rule of Civil

Procedure. For the reasons below, the defendants’ motion is granted.

BACKGROUND
This matter arises out of debts incurred by plaintiff Christopher Green while gambling at
the Las Vegas-based Tropicana Casino. The Tropicana is owned by defendant Aztar Corporation
and managed by defendant Jonathan Swain. Green began gambling at the Tropicana after he
won $12 million in the Illinois Big Game Lottery in 1988. Green also used his lottery winnings to
place various bets, some illegal, through an alleged Chicago-based agent of the Tropicana,
defendant Ronald Antos.

As his winnings dwindled and his debts increased, Tropicana would extend Green lines of

Ot


credit with the understanding that Green would repay his debts with future earnings. One such
instance allegedly occurred in the spring of 1999. Green claims that he entered into a credit
extension agreement with Tropicana’s credit manager, Alex Montebello, wherein Green agreed
to repay money he owed Tropicana. Also that spring, Green claims that he met with Swain to
discuss repayment of an additional $400,000 he owed the casino. During the meeting, Green
contends that Swain promised to forgive his debts altogether if Green refused to cooperate with a
pending FBI investigation of Antos’ illegal gambling operations.

When Green did not comply with Swain’s request, Green alleges that Antos threatened
Green and his family with bodily harm. Green also alleges that defendants began filing civil
lawsuits against Green for passing Tropicana bad checks. Green further claims that defendants
persuaded the Las Vegas District Attorney to file criminal charges against Antos for drawing and
passing checks with intent to defraud. As a result, Green was arrested and briefly held in a
Chicago jail.

Green claims that defendants violated RICO by: 1) placing illegal bets on Green’s behalf;
2)routinely extending Green credit to place illegal bets; 3) accepting Green’s checks knowing he
had insufficient funds and then suing to enforce the checks; 4) offering to forgive Green’s debts if
he tefused to cooperate with an FBI investigation; 5) threatening Green and his family. Green
alleges that defendants’ RICO violations caused him to suffer trauma, humiliation, emotional
distress, familial discord, and monetary losses.

In response, defendants argue that Green lacks standing to bring a RICO action because
he has failed to allege a compensable RICO injury or establish causation between Green’s injuries

and defendants’ purported RICO violations. Defendants also argue that even if Green could