Petition for Writ of Certiorari — Mattes v. Ballys Las Vegas (No. 07-125)

FILED

No. 07-125 JUL3i1 ow

IN THE OFFICE OF THE CLERK

Supreme Court of the Hnited States

STEVEN MATTES, PETITIONER

Vv.

BALLYS LAS VEGAS; PARIS HOTEL

& CASINO; PARK PLACE, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MARINA TRAMONTOZZI

Counsel of Record

KEVIN MIRCH

Mirch & Mirch

320 Flint Street

Reno, NV 89501

(775) 324-7444

Attorneys for Petitioner

CURRY & TAYLOR @ WASH O.C. @ (202) 393-4141 © USSCINFO.cCaM

QUESTIONS PRESENTED

Did the Ninth Circuit Court of Appeals deny

Petitioner’s Constitutional right to petition for redress

by affirming the trial court’s dismissal of the

conversion claim for lack of jurisdiction, thereby

leaving Petitioner with no forum to seek relief?

The Ninth Circuit’s Memorandum is inconsistent and

conflicts with established law by stating that the Nevada

Gaming Control Board has exclusive jurisdiction over

conduct of a casino that allegedly converted over

$8,000,000.000 from a patron. Because the Nevada

Gaming Control Board’s jurisdiction is specifically

excluded by Nevada statute, the Ninth Circuit decision

gives Nevada Casinos carte blanche to effectively steal

high rollers cash, knowing that there is no forum for the

patron to seek legal recourse.

Did the Ninth Circuit err in ignoring and excusing the

Respondents’ destruction of evidence?

Did the Ninth Circuit err in affirming the trial court’s

vacating of a multi-million dollar jury verdict in favor of

Petitioner?

ii

TABLE OF CONTENTS

Page

ce avs cesdeunseuiendslieouncainnial i

i ccenespuisirtusaiou dating iti

EE EE ODED SP Se l

aes sandoumivenegunisadiiesauabubsuine l

RELEVANT PROVISIONS INVOLVED...............0c.eccccccecccoccecceessonseeecees l

a. elu tecbuauianinusieasesinusectonsh I

REASONS FOR GRANTING THE PETITION .............ccccescescecceseeeeceeseeees 4

ee sscsinvenerveneansensuressnecvensnass 29

APPENDIX

a sduaetaveniibiaimmoenen la

i iauuctsbevesvbeusenicunmelsaceuees 13a

TABLE OF AUTHORITIES

Page

CASES

AIR-SEA FORWARDERS, INC. Vv. AIR ASIA Co., LTD.,

880 F.2D

POT I Fak icecnciccdiicnwine ale ei es 15

AKIONA V. UNITED STATES, 938 F.2D 158 (9"" Cir.

DUPED siobscsinssenanieiniessissinscedisianbtiess sashes bipntin putaslielighedadb iaatidoetadinioaiabaciiii 7

AMERICAN STORES Co. V. BYRD, 229 MD. 5 (MD.

SNEED se sisesessincessssasd ecuaaubedabcnsiciee eit paetieaabaidbicdaainanebiinmesamdbeiconnilin 21

ANHEUSER-BUSCH, INC. Vv. NATURAL BEVERAGE

DISTRIBS, 69 F.3D 337 (9 CIR. 1995) .o..cccceccesseeeseseeeeeeeeees 7

BRANDA V. SANFORD, 97 NEV. 643 (1981)..............ccceseeeeeeeee 22

BYRD V. BLUE RIDGE RURAL ELECTRIC COOPERATIVE,

i, Ae ee ee NN ia isieaichicehinsiniensaekainicedibeehulciinits 15

FENNER V. DEPENDABLE TRUCKING COMPANY, INC.,

FE a es ainsi eccctcccteaers 15

GRAND CASINO V. BILOXI V. HALLMARK, 823 So.2D

ee Pe iicsenca Se aa anemicn 7

GULFSTREAM PARK RACING ASS'N V. TAMPA BAY

DOWNS 399 F.3D 1276 ...............2.0000- SEERA NON POSe a ee TeeR DE Te 6

HALL V. HEAVEY, 195 N.J. SUPER. 590 (M/K/ SI[ER/

Oe ee Me BE Rit cicacissiacmeticceeaeuinnllataniaitnnedigeiehganis 21

HILTON HOTELS V. BUTCH LEWIS PRODUCTIONS, INC.,

Ue PU PE asta ocean aed koe 19

LANDES CONSTRUCTION CO., INC., 833 F.2D 1365 (9"™"

i tee Pi icdichitiinsinsh\ceatsceskdpaeibacimemnsatanlaaenniniaedibaiotetes 14,15

MAINS V. K-MART Corp., 297 S.C. 142 (S.C. Cr. App.

IE icici cece scindcdt cil ined as ls speed acinasicesinismediabiceans 21

MALONE V. UNITED STATES POSTAL SERVICE, 833

ky | ag Ty, We RRR Pe a ee een x

MISSISSIPPI GAMING COMMISSION V. FREEMAN, 747

a RN BPP ai ictibsscrngcictnnsnccesiipnsiaddiehorsninviniecesl 8

MORUAN V. WOESSNER, 997 F.2D 1244 (9™ Cir.

| REE OLN ESN AAT SWAT LA Me Oe ODOT E OOO 27

NEVADA HIGHWAY PATROL ASS'N V. STATE OF

PR iia ae scan ceennlnininioniienicbes 6

OLTZ V. ST. PETER'S COMMUNITY HOSPITAL, 861 F.2D

oT gg =. SRS a Er ERC oO 15

PERRY V. JORDAN, 111 NEV. 943 (1995) ..........cccceeceeeeeseeeeees 19

POSADAS V. CITY OF RENO, 109 NEV. 448 (1993) ....00...00.... 22

RoY V. VOLKSWAGEN OF AMERICA, INC. 896 F.2D

Ea ts Fa ci idiikcns satinkenicicessiateisnlonies 10, 13, 24

SAFEWAY STORES V. ROGERS, 186 ARK. 826 (ARK.

5. REI ae ers mate Ee eee Rane ae ek cele aE 21

SENGEL V. IGT, 116 NEV. 565 (2000)..............ccccseeseceneeseceeee 28

SOUTHWEST DRUG STORES V. GARNER, 195 So. 2D

pt Et: INRERERD ar ancst eae Mri OSCE NOMEN hoe apn 21

TUMBARELLA V. KROGER CO. 85 MICH. AppP. 482

Vv

Es PN CPOE sails crvsitoniianindiasudesduceshaicniibamebudinieieiisetias 21

UNITED STATES OF AMERICA V. ASHER, 59 F.3D 622

NUIT IN bcs cizied'ccucbnadepdaaovlec scalepsicdebishicatceebecesed coe daar@iahecbutsieba dos 23

UNITED STATES V. 4.0 ACRES OF LAND, 175 F.3b 1133

© sg, SARC RAR USNC PRMD Rape HOD TSF eVn Oe 15, 24, 26, 27

UNITED STATES V. HENLEY, 238 F.3p 1111 (9™ Cir.

IE Piicitiesccsbukatdsenisiscbcilbicaliisese rccas cel ee sera Nae 27

UNITED STATES V. SHAFFER, 35 F.3D 110 (3D Cir.

| MORETTI AN SS DOE eR IIE Tea SHPO OEM hea NT 22

WET 'N WILD NEVADA, INC., 113 NEV. 967 ...............2eeeeeeeeee 4

RULES

ee 14

ns le Ws LID scsivsivaiisviss tuo csitapnohioredeiblascacusaonea mex een 27

I eeiisd ip ctiecesaiiasos stolen dccustoerdiiatanidasteisiane inhaaanan oes 26

l

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Ninth Circuit affirming the decision of the District Court

filed March 1, 2007, and is set forth in the Appendix, Exhibit

la.

The Opinion of the United States District Court, filed

January 4, 2005, is set forth in Appendix, Exhibit 13a.

Neither Opinion is reported.

JURISDICTION

A timely petition for rehearing was filed and denied on

May 2, 2007. Jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

RELEVANT PROVISIONS INVOLVED(see appendix)

STATEMENT

This action involves a dispute between the Petitioner,

Steven Mattes, and the Respondents, Park Place, Incorporated,

Paris Hotel and Casino, Incorporated, and Bally's Las Vegas.

The incident occurred in September, 1999, when Mr. Mattes

was invited by a casino host to attend the opening of the Paris

Casino in Las Vegas. Mr. Mattes was known as a casino patron

who would wager very large amounts of money. Mr. Mattes’

had substantial winnings at Bally’s during the summer of 1999.

During the summer of 1999, Mr. Mattes won $1,363.000

_ and later $1,468,000 at Bally's. Mr. Tom Bonanne was a

marketing executive for Park Place, Inc., which owned Paris

and Bally's Casinos under their subsidiary name, ParBall, Inc.

As part of a scheme to increase profits, Mr. Bonanne befriended

Mr. Mattes and other “high rollers” in order to convert millions

of dollars placed under Respondents’ direction and control.

2

Shortly before September 4, 1999, Mr. Bonanne

solicited Mr. Mattes’ gaming business for the grand opening of

the Paris Casino. As an inducement to gamble at the Paris,

Mr. Mattes was promised an unrestricted revolving

$2,000,000.00 line of credit; unrestricted “comps” for Mr.

Mattes and his family; and private jet transportation from Los

Angeles to Las Vegas. As part of the Paris trip, Mr.

Bonanne prepared an agreement (i.e., “TTO” - This Trip Only

Agreement) which provided Mr. Mattes with a $2,000,000.00

line of credit.. Mr. Mattes has executed “TTO”’s on many other

occasions. On each of those previous incidents, Mr. Mattes

understood that his line of credit was revolving. Moreover, Mr.

Mattes had used “call bets” instead of “rim play” to record loans

made during the course of play. Mr. Mattes would not have

attended the Paris grand opening had he known that his

$2,000,000.00 line of credit was not revolving.

Mr. Mattes started play on September 4, 1999. At the

behest of Mr. Bonanne, Mr. Mattes deposited a $1,363,000.00

Bally’s check at the Paris Casino cage. This check represented

winnings from a trip to Bally’s on or about August 17, 1999..

On September 7, 1999, Mr. Mattes was informed that he had

used his $2,000,000 line of credit and the $1,363,000.00 “up

front” money deposit. Mr. Mattes complained that “rim credit”

calculations were incorrect. Rim betting is illegal in most

jurisdictions because the player does not have chips. Instead,

the host simply calculates win and loss.

Not wanting io disrupt his “best friend’s ” grand

opening, Mr. Mattes calmly asked that his video tapes be

reviewed for accuracy. Thereafter, Mr. Mattes asked for

additional credit. Mr. Bonanne suggested that Mr. Mattes

allow Bally’s to stop payment on another Bally’s check dated

June 20, 1999 in the amount of $1,468,000.00. Mr. Mattes

agreed subject to being allowed to continue playing with the

$1,468,000.00 added to his line of credit. Mr. Bonanne agreed

to these terms before approaching Mr. Goldberg, the Chairman

of the Board of Park Place, Inc. After discussing the terms with

3

Mr. Golc. »«., Mr. Bonanne caused Mr. Mattes’s Bally’s check’s

to be stopped. After stopping payment, Mr. Mattes was not

allowed to continue playing at the Paris Casino, but instead,

excluded from the casino, video tapes were destroyed, markers

forged, and accounting records altered.

In order to justify the exclusion of Mr. Mattes from the

Paris Casino, Mr. Bonanne told a number of Mr. Mattes’ family

and friends that he was excluded because of kiting checks. The

trial court ruled that statements made to family members are not

derogatory. The trial court’s outrageous conduct protected the

Nevada gaming industry from charges of industry-wide theft.

Not only was Mr. Mattes deceived, when Mr. Bonanne

stopped payment on the Bally's check, Mr. Bonanne

misrepresented to Bank of America that the check was lost.

Eventually, Mr. Mattes’ alleged financial problems (1.e. check

kiting) were published to various other casino properties and

his competitors in his other businesses. As a result, Mr. Mattes

was unable to procure any gaming credit a1.d severely maligned

in his other businesses.

Prior to the Paris trip, Mr. Bonanne had successfully

conspired to use his “best friend” status to convert substantial

amounts of money from Mr. Mattes. On January 18, 2000,

Mr. Bonanne ordered Mr. Mattes’ file be destroyed.

Afterward, the file the was either maintained or re-

manufactured for litigation or business purposes as it was

available at the time of trial to show that Mr. Mattes did not

pay his gaming obligations in a timely fashion. This statement

was false as Mr. Mattes has paid millions of dollars to various

Las Vegas Casinos over the years.

Substantial evidence of misconduct even after Mr.

Mattes had stopped patronizing the Park Place properties was

introduced at trial. Records were generated showing the

contrary (i.e. Park Place claims on December 6, 1999, Mr.

Mattes attended or otherwise participated in a NASCAR

promotion, on December 2, 1999, Mr. Mattes signed up for a

black jack tournament set for 2/27). Mr. Mattes was not in Las

4

Vegas on either date. The significance of these events is that

the Respondents were generating computer events which

coincided with amounts allegedly owed by Mr. Mattes to Park

Place or related entities. Trial exhibits showed that Mr.

Bonanne, while an employee of ParBal, manipulated at will the

computer records of the Hilton. This comports with errors

found throughout the exhibits, numerous markers, and created

a triable issue of fact which precluded summary judgment in

this case, as well as established markers as credit instruments

which are not within the exclusive jurisdiction of the Nevada

Gaming Control Board. See discussion below. Therefore, the

District Court and Appellate Court's orders to the contrary were

in error.

When Mr. Mattes complained about the “rim credit”

calculations, he was assured by Mr. Bonanne that Paris’ video

tapes would be maintained and reviewed for propriety. Despite

these assurances, the tapes and original markers were destroyed.

This creates a presumption in favor of Mr. Mattes and which

precludes summary judgment on its face. See Reingold v. Wet

‘n Wild Nevada, Inc., 113 Nev. 967, 970, 944, P.2d 800, 802

(1997).

REASONS FOR GRANTING THE PETITION

A. The Ninth Circuit Court Made a Fatal Jurisdictional

Error that Deprived Petitioner of Any Remedy to Address

a Conceded Bona Fide Claim.

If the original judgment on jury verdict were affirmed,

the State of Nevada's gaming industry would be substantially

impaired. The lower courts submitted to washing their hands of

the issue, by denying Petitioner of any jurisdiction for his

conversion claim. Here, it is not disputed that Petitioner had a

legitimate claim for conversion, supported by substantial

evidence sufficient to raise the triable issue of fact that

Petitioner won “$3,262,000 which was intentionally offset by

5

forged, fraudulent, unsigned markers ... used to justify false

accounting records.” (trial court’s order holding that there was

evidence that would “preclude summary judgment”).

Nevertheless, the trial court threw this claim out of federal

district court based on a blatant misapplication of Nevada

gaming law that grants the Nevada Gaming Control Board

exclusive jurisdiction to hear claims between casinos and

patrons based on disputed gaming debts “not evidenced by a

credit instrument.” Nev. Rev. Stat. § 463.361 (emph. added.)

The Memorandum accepted the argument made by Respondents

at oral argument that markers do not constitute a “credit

instrument” and that Petitioner could and must seek exclusive

recourse through the Nevada Board. This is legally incorrect

deprives Petitioner now of any opportunity to redress a

legitimate $3.6 million claim.

A “credit instrument” is specifically defined by Nevada

Statute to mean any “writing which evidences a gaming debt

owed to [a casino] .. and includes any instrument taken in

consolidation, redemption or payment of a previous credit

instrument.” NRS 463.01467 (emph. added). Clearly, a marker

is a “credit instrument” and, indeed, probably the most prevalent

credit instrument utilized in the gaming industry. Importantly,

the same Nevada statutory scheme specifically identifies

markers as credit instruments. NRS 6.040 unambiguously

identifies the accounting records to be maintained by a casino to

include: ... all markers, IOUS, return checks, hold checks, or

other similar credit instruments. NRS 6.040 (emph. added.)

During oral argument before the Ninth Circuit Respondent's

counsel intentionally misstated the law as to whether a marker

is a credit instrument in order to protect the gaming industry.

Here, it is undisputed that Petitioner's claims involved

overcharges by the casino for alleged gaming debts that were

fully secured and evidenced by markers -- both signed and

unsigned -- as well as checks payable to Petitioner and

deposited by Petitioner. As such, Nevada law makes clear that

Petitioner's claims are outside the exclusive jurisdiction of the

6

Nevada Board and were properly brought in federal district

court.

The error and unfairness of Respondents’ position, and

the importance of this matter for purposes of correcting it

through this writ is further demonstrated by the fact that suits

over gambling debts involving markers by casinos against

patrons are brought regularly and are currently pending before

the federal district courts. In those cases, the casinos

themselves take the correct position that markers are credit

instruments, and thereby out of the jurisdiction of the Board and

within the subject matter jurisdiction of the federal district

courts. That the casinos make the exact opposite position here

because it suits their immediate needs not only underscores the

error of the Memorandum, but also underscores the need to

correct it to allow for uniform application of the law.

Alternatively, if there is any doubt, the issue of the

Board's jurisdiction should be certified and submitted to the

Nevada Supreme Court for the correct interpretation of State

law, prior to depriving Petitioner of federal jurisdiction. See

Nevada Highway Patrol Ass'n v. State of Nevada 784 F.2d 1503

(9th Cir. 1992) (petition for rehearing prompted certification of

questions about Nevada law to Supreme Court of Nevada) and

Gulfstream Park Racing Ass'n v. Tampa Bay Downs 399 F.3d

1276 (1 1th Cir. 2005) (certifying questions regarding Florida's

gambling regulatory scheme to Florida Supreme Court).

B. The Jurisdiction of Federal Courts to Decided

Disputes Involving Amounts Owed Is a Question That Must

Be Addressed to Assure Uniformity of Decisions and

Involves a Matter of Extraordinary Importance.

The Memorandum’s erroneous ruling on federal court

jurisdiction to hear Petitioner’s claims is a matter of

extraordinary importance because tt would deprive similar

litigants of any forum to redress legitimate disputes. It is also

important because similar cases are routinely brought and are

7

currently pending in district courts within the Circuit. A

correct ruling is critical to ensure a uniform application of law,

and to avoid inconsistent rulings in one of the most fundamental

threshold issues that the districts courts must address, i.e., the

scope of their own jurisdiction.

os This Case Presents the Timely and Extraordinarily

Important issue of a Corporation’s Duty to Preserve

Evidence When it Knew Or Should Have Known of a

Pending Dispute.

For several reasons, the Memorandum, which allows

Respondents to benefit from its admitted failure to preserve

material evidence that would have conclusively resolved

Petitioner’s fraud claim and shifted the burden of proof on the

other claims, presents an important, timely issue that merits this

Court’s review. First, a corporation’s failure to preserve

relevant evidence, when it knows or should know it is relevant

to foreseeable litigation, violates fundamental notions of due

process and impugns the integrity of the judicial process. See,

e.g., Grand Casino v. Biloxi v. Hallmark, 823 So.2d 1185, 1191

(Miss. 2002) (casino’s failure to preserve videotape and

computer evidence relevant to dispute regarding whether patron

had won progressive jackpot prejudiced patron’s due process

rights, and thus patron was entitled to entire amount of the

jackpot.) |

Second, if the Court fails in this case to apply its

existing prohibitions on the destruction of evidence (see, e.g.,

Anheuser-Busch, Inc. v. Natural Beverage Distribs, 69 F.3d

337, 353 (9th Cir. 1995) (affirming dismissal of counterclaim of

spoiliator); Halco Eng 2 Co v. Costle, 843 F.2d 376, 380 (9th

Cir. 1988) (discovery sanctions restore accuracy of the trial,

compensate victims of evidence destruction, and deter against

evidence destruction); Akiona v. United States, 938 F.2d 158

(9ih Cir. 1991) Gury permitted to draw adverse inference from

spoiliation against party responsible for that behavior),

8

corporations in general, and casinos in particular, will be less

inclined to retain records for trial.

The result, a trial without primary sources of evidence,

works an unjustifiable hardship on parties secking to prove facts

and on judges and juries seeking to find facts. See Malone v.

United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

(finding prejudice when spoliation impairs the victim's ability to

go to trial or threatens to interfere with rightful decision of

case); see also Mississippi Gaming Comm h v. Freeman, 747

So.2d 231, 247 (Miss. 1999) (upholding negative inference

against spoiliating casino, stating “...patrons are at the mercy of

[the] gaming system and the law, and the judicial system is their

only current safeguard.”)

That result is particularly dangerous here, where a

casino has taken money from a patron and then destroyed

crucial evidence that would have proved the money was taken

improperly. As currently written, the Court’s opinion holds

that, even in the face of evidence that a corporation had notice

of imminent litigation (i.e., an oral request to preserve records,

promises to preserve all surveillance tapes and accounting

records surrounding the dispute, and a letter to the casino

referencing potential claims, an internal document that states

“Tape is saved,”), the corporation has no obligation to preserve

those records -- because the patron did not write a letter

specifically identifying the tape, and demanding that it be saved.

Such a holding merits a writ of certiorari for another

reason. If the Court adopts the standard articulated in the

Memorandum, the Court misses an opportunity to address the

destruction of evidence in the casino-patron context.

Finally, a writ of certiorari presents the opportunity for

the Court to clarify the law on destruction of evidence

inconsistent with a corporation’s internal record retention

policy.

D. Material Points of Fact and Law Were Overlooked

in the Memorandum.

Petition for panel review is warranted for another

important reason. The Memor: idum overlooks material facts

which, if considered, would necessitate a different outcome.

Most telling is the Memorandum’s acceptance of the

trial court’s determination that damages awarded by the jury

were “speculative” and that “the damage award appears to have

been prospective earnings from gambling.” (Mem. p.7) This

was central to the Court’s affirmance and was the central basis

for the trial court's granting of the new trial because, according

to the trial court, “it is simply impossible to determine the

evidentiary basis for the jury’s damages awards.”

Such finding is an abuse of discretion because it

misstates the case and completely ignores the evidence

(undisputed in many crucial instances, but overlooked in the

Memorandum) showing that the damages sought and awarded

by the jury were tied -- not to “prospective gambling earnings” -

- but instead tied to specific dollar amounts shown at trial to

have been misappropriated by the casino. Two clear examples

overlooked by the Memorandum are as follows.

First, the jury awarded damages of $2,558,000 on the

breach of contract cause of action. This is exactly the same

amount of the so-called gambling “losses” that Respondents

admittedly charged Petitioner based on markers that he

undisputedly never signed. It is undisputed that casinos

overcharged Petitioner for unsigned markers totaling $2.558

million. Markers are no different from checks or other

negotiable instruments and are not valid if not signed.

Certainly, overcharging a patron supports breach of contract. A

fundamental term of any gambling agreement is that, in

exchange for betting, the casino will pay off winnings and not

charge for losses that were never incurred. The jury was correct

10

in awarding that amount back as part of the breach of contract

damages.

Second, the jury awarded damages in the amount of

$1,468,000 on the conversion cause of action. This amount

coincides exactly to the $1.448 million check that Petitioner

delivered to, and was canceled by, Respondents on the express

condition and promise that he be allowed to continue playing.

This promise was undisputed -- as was the fact that the

Respondent's casinos breached it. There simply was and is no

evidence to the contrary. Petitioner was entitled to -- and the

jury awarded him -- restoration of that amount that was

wrongfully taken from him on false pretenses.

Certainly, these damage awards were not “speculative,”

nor were they tied in any way whatsoever to “prospective

gambling earnings.” The Ninth Circuit ignored that the trial

court abused its discretion by finding, in the face of such

evidence, that “it is simply impossible to determine the

evidentiary basis for the jury’s damages awards.” See Roy v.

Volkswagen of America, Inc. 896 F.2d 1174, 1176 (9th cir.

1990) (“if the jury's verdict is not clearly against the weight of

the evidence, the trial court abuses its discretion in ordering a

new trial”).

The Memorandum also overlooks material facts in

critical areas where it expressly -- but incorrectly -- finds that

the record lacks substantial evidence on key elements.

These statements overlook the following direct

evidence: Petitioner risked substantial sums of money in

Also the breach of contract and fraud in the inducement claims, the

“verdict was against the clear weight of the evidence because there was no

substantial evidence that Paris agreed that the credit line could not be

revoked, had a specific duration, or would be handled in a particular

manner” and further that Petitioner “did not introduce any evidence the

credit line was revolving in the manner he suggested." (Sec Mem., pp. 2, 5,

emph. added. )

|

exchange for a written TTO agreement. A TTO isa term of art

in the gaming industry, and is used to attract high rollers. The

written TTO states the specific duration (three days), as well as

the initial credit line ($2 million). There is no provision giving

the casino the right to revoke it. That the credit line was

“revolving” was proven by, among other things, Respondents’

own evidence showing how the casinos actually calculated

Petitioner's balance (constituting proof of Petitioner's actual

course of dealing during the same trip, whereby the casinos

consistently credited gains to the ongoing balance -- i.e., they

treated it as a revolving credit line). The Memorandum simply

overlooks this evidence by erroneously concluding that the

terms “were not supported by the language of the agreement or

any other competent evidence” (Mem., p. 3.), when in fact the

evidence was clear and direct.

As to the fraud claim, the Memorandum states, that the

evidence “fails to demonstrate either the existence of a specific

agreement that was violated or a misrepresentation.” (Mem. p.

4, emph added.)

Here, the Memorandum overlooks the direct evidence

that Petitioner tendered the $1,468,000 check to the casino on

the express promise that he be allowed to remain playing at the

Paris.” In addition to Petitioner's testimony, this was judicially

admitted by Respondents in response to requests for

admissions. (“Defendants admit that at a point in time during

his September 1999 trip to Paris, plaintiff asked that Bally's

stop payment on a $1,468,000 check payable to plaintiff and

that he be allowed to gamble with the proceeds”).) Despite this

understanding, it is undisputed that Respondents took the check,

stopped payment, and immediately escorted Petitioner out of the

According to the Memorandum, "“petitioners’ claim that the casino’s

markers were forged and its accounting records falsified was, according to

the court, based on “speculation” and “not supported with any foundation.”

(Mem. p. 5.)

12

casino.

The Memorandum also overlooks that it was undisputed

at trial and in opposition to summary judgment that

Respondents charged Petitioner at least $2.558 million based on

unsigned markers. The fact that they were unsigned is prima

facie, if not conclusive, evidence that the amounts charged were

not owed. Further, Respondents’ evidence to support their

claims was based solely on certain accounting records which

were, at best, inconsistent on their face and in many instances

prove Petitioner's claim -- based not only on Petitioner’s

testimony, but on the testimony of Respondent’s own witnesses.

Certainly, Respondents’ inconsistent and damaging records do

not rise to evidence “clearly against the weight” of Petitioner’s

evidence included proof that he was charged for markers he

never executed.

According to the Memorandum, Petitioner’s claim that

the casinos wrongfully destroyed video-taped evidence was not

supported by the evidence because Petitioner’s letter sent to

Appellee Paris did not specifically “mention destruction of

evidence or request that any evidence be preserved.” (Mem. p.

5, emph. added.)

Here, ,the Memorandum overlooks the following

evidence. While still at the Paris, Petitioner specifically

informed Appellee’s agent, Mr. Bonanne, that he wanted to

review all records that had occurred on the trip. Both Petitioner

and Bonannc testified that Petitioner gestured to the video

cameras, while he was being escorted out, clearly indicating that

he was being mistreated while there. In the subject letter which

was read to Bonanne immediately after the incident, Petitioner

specifically complained that, during the trip, Paris “made unjust,

self-serving decisions” . . . “crossed the line of fair gaming and

the implied covenant of good dealing” . . . that the Paris

management was “admit[tting] damages” . . . and that there

were “material issucs of fact” deserving “scrutiny.” Bonanne

responded to this letter by falsely assuring Petitioner that all

records would be preserved and reviewed.

13

Such evidence is more than sufficient to establish that

Respondents were on notice of a dispute, were requested to

preserve records and promised to do so. It is undisputed that

they failed to do so. The Memorandum errs by overlooking this

evidence and vindicating Respondents simply because the

subject letter does not make specific reference to the videotape.

This puts an undue burden on Petitioner, not supported by the

law. See, Unigard Sec Ins. v. Lakewood Eng g & Mfg, 928 F.2d

363, 366-367 (short blurb on case) .

Further, the Memorandum completely negates Trial

Exhibit 40, which unambiguously refers to the fact Petitioner

was charged for unsigned markers and that: “TOM BONNANE.

MIKE ALLGEIER AND, SURVEILLANCE ARE AWARE.

THE TAPE IS SAVED.”

This evidence makes it clear that Mr. Bonnane and Mr.

Allegeier were aware of a dispute over the unsigned markers,

ihat the tapes would be evidence to resolve the dispute, and that

the tape was saved for that very purpose. Yet the Memorandum

completely dismisses and ignores this evidence because it is a

“Hilton document” and not evidence that Paris Casino destroyed

the tapes. (Memorandum, p. 5.) What the Memorandum

ignores is that, it is undisputed that Paris Casino destroyed the

tapes, and that Bonnane -- who is specifically referenced in the

letter -- had acted as Paris Casino’s agent throughout (he is the

one who arranged the TTO) and, that he and Mr. Allegeier had

acted then, and on a regular bases, as dual agents for both

Respondents and Paris Casino, and that the two casinos acted

together. But regardless, to negate this evidence on the

grounds that it is written on a Hilton form, completely ignores

that the document direct evidence showing Bonanne's

awareness of the dispute, the relevance of the tape, and the need

to save it.

Properly considering the above evidence overlooked in

the Memorandum, cited above on each of these issues, it is clear

that trial court abused its discretion in upsetting the jury verdict.

See, Roy v. Volkswagen, supra, 896 F.2d at 1178-1179

14

(granting of new trial was an abuse of discretion where there

was conflicting evidence where [as here] there was no

indication that the verdict was the result of sympathy).

Furthermore, and at an absolute minimum, these overlooked

items (as well as the other evidence discussed below), are more

than sufficient to create triable issues of material fact on each of

Petitioner's causes of action. A writ to the Ninth Circuit Court

of Appeals is warranted.

1. The District Court erred in granting Respondents’

Motion for a New Trial and vacating the Judgment on Jury

Verdict

a. The _ Post-Trial Order of the District Court

In April, 2003, the District Court granted Respondents’

Motion for a new trial.”

The Court granted a motion for a new trial following a

clean, successful trial which resulted in a jury verdict and

judgment in excess of $8,000,000 in favor of Mr. Mattes. Until

the order granting Defendant's Motion for a New Trial, the

’ In its Order the District Court stated:

The Court finds that the verdict is rife with errors and leaves the

Court with "the definite and firm conviction that a mistake has

been committed.” Landes Construction Co., Inc., 833 F.2d at

1371. It is internally inconsistent and generally unsupported by

credible evidence. Plaintiff proved no actionable defamation or

fraud, and it is simply impossible to determine the evidentiary basis

for the jury's damages awards. These crrors are only compounded

by the flawed verdict form which prompted the jury to prematurely

consider punitive damages without instruction from the Court or the

benefit of bifurcated proceedings and render an award of punitive

damages in a manner inconsistent with NRS 42.005. In light of the

pervasive nature of these and a host of other errors, and in the

interest of justice, the Jury Verdict and Judgment in a Civil Case

must be set aside in their entirety, and a new trial on all issues must

be ordered.

15

District Court had denied Defendants' Motion for Summary

Judgment and FRCP 50(b) motions. With all due respect to the

District Court, Petitioner believes that a number of legal errors

occurred which support reversal of the order granting the new

trial and reinstatement of the jury’s verdict.

b. Legal standard on motion for new trial

The trial court may grant a new trial if the verdict is

contrary to the clear weight of the evidence, or is based upon

evidence which is false, or to prevent, in the sound discretion of

the trial court, a miscarriage of justice." United States v. 4.0

Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999), quoting

Oltz v. St. Peter's Community Hospital, 861 F.2d 1440, 1452

(9th Cir. 1988)); Fenner v. Dependable Trucking Company,

Inc., 716 F.2d 598, 602 (9th Cir 1983). | The District Court

has the power to consider the evidence and credibility of

witnesses, when deciding whether to grant a new trial, but only

if the verdict appears to him to be against the weight of the

evidence. Byrd v. Blue Ridge Rural Electric Cooperative, Inc.,

356 U.S. 525, 540 (1958). Landes Construction Co., Inc., 833

F.2d 1365, 1371 (9th Cir. 1987); Air-Sea Forwarders, Inc. v.

Air Asia Co., Ltd., 880 F.2d 176, 190 (9 Cir. 1989); 11 C.

WRIGHT & A. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 2806, at 48-49 (1973)); accord, Fenner, 716

F.2d at 602. Essentially, the Court serves as a“13nth Juror”. A

motion for a new trial is rarely granted as there is a strong

public policy against overturning a jury’s verdict.

Additionally, where evidence has been destroyed by a party, the

motion should not be granted. In this case, the Ninth Circuit

ignored the fact that Respondents knowingly destroyed the

video tapes of Mr. Mattes’ play.

C. Substantial evidence confirms the jury's breach of

contract verdict.

Explanation of the 3 contracts.

Mr. Mattes’ breach of contract claims consisted of three

distinct contracts.:

1. inducement to gamble at Paris Casino

16

The first contract was one which invited Mr. Mattes to

gamble at the grand opening of the Paris Casino. In exchange

for agreeing to gamble at that facility, the Defendants agreed to

provide a safe, properly supervised, fairly run gaming property.

Moreover, Mr. Mattes was promised by his dearest friend and

gaming confidant (Mr. Bonanne) that he would be given a

$2,000,000 revolving line of credit. See above discussion

2. Agreement to stop payment on Bally's Check No.

8848.

The second contract was a conditional agreement to

stop payment on a $1,468,000 Bally's check in exchange for

being allowed to play against the “adjusted credit line”. That

contract was breached when Mr. Bonanne stopped payment on

Bally’s Check No. 8848, kept the funds, but would not allow

Mr. Mattes to continue playing. Instead, Mr. Mattes was

instructed to gamble elsewhere.

3. Settlement Agreement.

The third contract was a settlement agreement induced

by fraud. Specifically, Mr. Mattes was informed by Mr.

Bonanne that he owed $524,000 on three markers: Marker

#1724629 ($232,000); #1724681 ($242,000); and #1724372

($50,000). As is discussed above, the settlement agreement was

induced by fraud as the markers allegedly being paid off had

not been signed and admittedly were not enforceable.

Revolving Credit Agreement --Substantial evidence

supports Mr. Mattes’ understanding that his line of credit

was “revolving.”

Respondent's own accounting records are revolving.

The Circuit Court ruled that there was no evidence that

Mr. Mattes’ line of credit was revolving. This ts a factual error

as Respondents’ own records admitted at trial prove that the line

of credit was “revolving”. (i.e., Rim Sheets, Account Run Down

Affidavit of Dave Ellis. Specifically, the Rim Sheet and

Account Run Down form calculate the “amount available” for

play by increasing and decreasing the balance depending on

17

credit issued and payments made. Much like a credit card, the

line was exhausted only when the amount of credit issued net of

payments and other adjustments, equaled or exceeded the

agreed upon limit. In this case, the $2,000,000 limit was never

reached.

Furthermore, if the lines were not revolving then

additional markers should not have been issued after the first

two markers because Respondent’s credit obligation had been

fully satisfied. It is undisputed that as of 9-6-99, $2,000,000 of

markers had been issued. None the less, $5,558,000 of markers

were issued thereafter. If the lines were not revolving, then no

markers would have been issued after the first day of play

because the cumulative amount lent on that day was

$2,100,000.

The “Rim Sheets” are also significant as the amount

“Available” shown in the upper right hand corner of the card

changed on each day. Clearly, the “line of credit” was going up

and down, like a credit card (i.e., it was “revolving”).

Undisputedly, the issuance of markers did not cease once the

cumulative total of credit exceeded $2,000,000. Instead, the

amount due was adjusted to reflect payments and the issuance

of additional debt. In other words, the credit was “revolving”.

A_marker analysis also shows that the credit was

revolving.

An analysis of Respondents’ markers also proved that

the line of credit was revolving. With respect to that, the first

two markers allegedly issued to Mr. Mattes equaled $2,000,000

(9-5-99 - #1722101 - $1,000,000; 9-6-99 - 1724138 -

$1,000,000). If it is true that the Respondents were only

required to grant credit on a cumulative basis up to $2,000,000,

then no other markers should have been issued after 9-6-99 at

19:23. Obviously, the lines of credit were revolving as the

Respondents issued an additional $5,000,000 of markers. This

would not have occurred if line of credit was “non-revolving”

Likewise, the Respondents’ “Account Run Down”

analysis is prepared on a revolving basis. As with the Rim

18

Sheets, the Respondents’ “Account Run Down” sheet accounts

for markers on a revolving basis. Again, if the lines of credit

were not revolving, then no markers would have been issued

after 9/6/99 (i.e., when $2,000,000 of markers had been issued).

The Stop Payment on Bally’s Check No. 8848 - There

is substantial evidence that a “Stop Payment Contract”

existed on 9-7-99, and was conditioned upon Mr. Mattes

being allowed to play against the adjusted credit line.

There is evidence supporting the stop payment contract

(i.e., , stopping payment on Bally Check No. 8848, $1,468,000

in exchange for being allowed to play on the adjusted line of

credit). The testimony at trial was that Mr. Mattes agreed to

allow the stop payment on Bally’s check No. 8848 in exchange

for being allowed to continue play on the adjusted line of credit.

Respondents’ retort is that the stop payment occurred on 9-8-

99 as part of settling Mr. Mattes’ marker account. As with

Defendants’ “revolving argument”, its own accounting records

contradict this argument (i.e., the stop payment was ordered and

accounted for on 9-7-99, not 9-8-99 as part of leaving the

property)

As is discussed above, substantial evidence exists

proving that the stop payment occurred on 9-7-99, not when

Mr. Mattes was settling his account on 9-8-99.

Substantial evidence confirms the jury's Breach of the

Covenant of Good Faith and Fair Dealing verdict in this

case.

Treating the revolving credit line as the only breach of

the covenant of good faith and fair dealing ignores significant

evidence to the contrary. Specifically, the covenant of good

faith and fair dealing was breached by the fraudulent conduct of

the Defendants (e.g., forged signatures on markers; internal

documents show that Mr. Mattes actually won while

representing that he had lost millions of dollars; video tapes

were destroyed; settlement contracts were induced by fraud

19

which included inflating balances created by admittedly

improper markers; redemption vouchers were post dated in

order to create a defense to improperly stopping payment on

Bally’s check no. 8848; when Mr. Mattes complained he was

maligned (accused of kiting checks).These acts establish

contractual and tortuous breach of the covenant of good faith

and fair dealing. Each of these facts are substantiated by

documentary evidence and testimony at trial. See Hilton Hotels

v. Butch Lewis Productions, Inc., 107 Nev. 226, 808 P.2d 919,

922-923 (1991) and Perry v. Jordan, 111 Nev. 943, 950, 900

P.2d 335, 229 (1995). There was substantial evidence to

support this claim.

Substantial evidence of Fraud

Fraud in the inducement.

Petitioner signed the “Credit Limit Increase Report”

which provided him credit of $2,000,000 for the trip.

Defendants never intended to provide Petitioner $2,000,000 of

credit. As soon as they had recovered the Bally's checks, they

excluded him from the property. Trial evidence proved that

Petitioner never accessed the full amount of the credit.

Fraud in claiming that the line of credit was nonrevolving.

Petitioner testified during trial that his credit had always

been revolving. Other Paris accounting records show that

Petitioner’ lines of credit were being accounted for as if they

were revolving. (“Account Run Down”). When Petitioner

requested further play after payment on Bally's check No. 8848

was complete, he was told that his line was not revolving. This

was false as Defendants’ own accounting records report the line

on a revolving basis.

Marker Fraud.

A number of the markers are missing the appropriate

signatures, are forged, or the signatures are not discernable.

Petitioner testified that he did not receive the original markers

20

despite requesting the same on several occasions. Forging,

altering or otherwise faisifying markers is evidence of fraud.

Accounting Fraud.

A number of documents were altered in order to increase

the marker amounts allegedly due.

The Redemption Voucher # 914558 misstates the date,

amounts of markers and amounts received.

Trial exhibit Redemption Voucher # 914492, dated

9/8/99 states that a payment was received in the amount of

$1,468,000. That represented the stop payment on Bally's

check no. 8848, dated 6-20-99 (TE 12) 8 ER 1262. However,

the origin of the payment is listed as only $468,000 and Marker

1724138 is shown as being -0-. The actual amount of that

marker was $1,000,000. As a result of these errors, Petitioner

was adversely affected in that Petitioner owed $232,000 and

Marker # 1724138 in the amount of $1,000,000 was still not

paid. The fraud was further escalated by alterations made to

Paris’ accounting records.

Finally, the Respondents knew that the Redemption

Voucher was incorrect as handwritten notations on the marker

state in cursive: “VA S/B 1,468,000. V/A = stop payment on

previous check issued #8848". Clearly, ParBall employees had

discovered the error but failed to correct the same. As a result

$1,000,000 was converted from Petitioner on this transaction

alone. Contrary to Respondents’ assertions Mr. Bonanne had

the unfettered power to order changes to the Paris computer

records (“9-8-99 $1,000,000 line taken out of computer per

Tom”).

Cc. Settlement/Discount Fraud.

Among the trial exhibits was a Settlement agreement

that was obtained by fraud. As is discussed above, the 3

markers being discounted had no value, but none the less, were

used to induce Petitioner to pay an additional $34,000.

D. Fraudulent accounting .

Evidence admitted at trial proves that Petitioner’ trip

was actually profitable, not a loss (1.e., $3,262,000 winnings).

21

See above discussion. The Redemption Vouchers were altered

to create marker liability sufficient to offset Petitioner?

winnings.

The Ninth Circuit erred in its analysis of Petitioner’ claim

for slander per se .

The Ninth Circuit erred in allowing the trial court’s

questioning parts of the jury’s verdict, instead of a_ verdict

under a “totality” approach. The ruling is also contrary to the

law on establishing a prima facia case of slander per se.

Slander per se does not require a specific statement

accusing Petitioner of kiting checks.

Comments made by the Court with respect to

Petitioner's slander per se verdict, appear to contradict the

current status of the law. Specifically, the Court held that

slanderous statements made to Petitioner's spouse and/or family

members were insufficient to establish a slander per se prima

facie case. Additionally, the Court held that implications that

Plaintiff was kiting checks is insufficient to satisfy a "slander

per se" claim for relief (i.e., it was necessary for someone to

directly accuse Petitioner of kiting and for him to be damaged

by the accusation and proof that he was denied credit as a result

of the accusation). The Court applied an incorrect standard.

Slander per se may be proven by implication.

There is no specific requirement that someone

specifically be accused of a crime and prove damages before a

slander per se claim is sufficient proven.’

We agree with the analysis of the district court. The imputation of

shoplifting, by words or by pantomime, if communicated to a third

party, is unquestionably slander per se. Sce Safeway Stores v.

Rogers, 186 Ark. 826, 56 S.W.2d 429 (Ark. 1933); American

Stores Co. v. Byrd, 229 Md. 5, 181 A.2d 333 (Md. 1962);

Tumbarella v. Kroger Co. 85 Mich. App. 482, 271 N.W.2d 284

(Mich. App. 1978); Southwest Drug Stores v. Garner, 195 So. 2d

837 (Miss. 1967); Hail v. Heavey, 195 N.J. Super. 590, 48! A.2d

294 (°. 7. Super. Ct. App. Div. 1984); Mains v. K-Mart Corp., 297

22

No specific accusations are required. In fact, slander per

se can be proven by pantomime. In this case, Petitioner was

maligned verbally and by "pantomime" (being escorted out of

the building after being told he could not play any longer at the

Paris Casino). The circumstantial evidence offered and

admitted at trial is significant in this case (i.c., line of credit

request turned down; Petitioner not allowed to play at the Paris

Casino any longer; Mattes family told Petitioner was kiting

checks; Petitioner denied credit anywhere in Las Vegas;

Petitioner told that he is being denied credit in Las Vegas

because of the problems he had at the Paris). Slander per se

does not require proof of damage. Damage is presumed in

slander per se cases. Further, pantomime or conduct that makes

a statement is sufficient to prove slander per se. Obviously,

Petitioner was accused either directly or indirectly of kiting

(e.g., Kiting was given as an excuse for banning him from the

Paris Hotel and Casino; Mrs. Mattes (wife) was told that

Petitioner was required to gamble elsewhere because of kiting;

Mrs. Mattes (mom) heard the term kiting be used as a reason for

Petitioner’ banishment). If the correct standard for slander per

se had been used by the trial court, Respondents’ motion for a

new trial would have been denied.

Kiting is a crime under the slander per se rules.

S.C. 142, 375 S.E.2d 311 (S.C. Ct. App. 1988); see also, G.H.

Genzel, Annotation, Defamation: Actionability of Accusation of

[***27] Imputation of Shoplifting, 29 A.L.R.3d 961 (1970 &

Supp. 1993). We conclude, as a matter of law, that the words and

conduct of K-Mart were capable of defamatory construction in that

the pantomime imputes criminal conduct to Washington. "The

truth or falsity of an allegedly defamatory statement is an issue of

fact properly left to the jury for resolution.” Posadas v. City of

Reno, 109 Nev. 448, 453, 851 P.2d 438, 442 (1993).

See Branda v. Sanford, 97 Nev. 643; 637 P.2d 1223; 1981 Nev. LEXIS 615.

23

Check kiting is a federal crime:°

This case is particularly significant. First, it confirms that it is

not necessary to specifically state "you are a check kiter". All

that is necessary for slander per se is the imputation that

Petitioner was kiting checks. In this case substantial imputation

of kiting exists. Second, it is not necessary to prove damages for

slander per se. Those damages are presumed.

Sufficient evidence was admitted at trial to overcome a

motion for a new trial on the claim for slander

Contrary to the Court’s observation, there was sufficient

evidence presented at trial to support the jury’s award on the

claim for slander. That evidence include the trial testimony of

Steve Mattes, Mrs. Greenberg, Michelle Mattes, and Mrs.

Mattes (Steve’s mother).

The undisputed testimony was that Petitioner’ reputation

was damaged and that he was unable to get credit as a result of

Defendants' comments that he was kiting checks. The value of

the lost credit is easy to calculate as Trial Exhibit | is a Hilton

"Table Lifetime Summary” which states that Petitioner has

available credit of $4,000,000. Obviously, the value of

Petitioner’ good name declined by $4,000,000 as a result of the

defamation. The $1,000,000 verdict was not overstated, but

instead, understated by $3,000,000.

The Guidelines stipulate that in fraud cases, "as in theft cases, loss

is the value of the money, property or services unlawfully taken. . .

.“"U.S.S.G. @ 2F 1.1 application note 7. The time to determine that

loss in a check-kiting scheme is the moment the loss is detected.

Accord, United States v. Shaffer, 35 F.3d 110, 114 (3d Cir. 1994)

(adopting Frydenlund analysis and noting that " check kiting

crimes, because of their particular nature, are crimes where the

district court must calculate the victim's actual loss as it exists at the

time the offense is detected. . . .")

See United States of America v. Asher, 59 F.3d 622; 1995 U.S. App. LEXIS

16050, at 625.

24

The Court erred in analyzing the damages in separate parts,

rather than using the “totality” $approach.

Introduction

The Appellate Court affirmed the ruling of the trial court

which failed to consider the jury’s verdict in its entirety, which

is the proper approach. This means that the Court focused on

parts of the verdict instead of the entire verdict. The result is a

finding that parts of the verdict are overstated without

considering whether the entire verdict is flawed. When

considered in its entirety, the verdict is reasonable. This error in

analyzing damages is discussed in 4.0 Acres of Land, 175

F.3d 1133 (9th Cir.1999), where the Court discussed what is

referred to as the "component" analysis of damages.6

In 4.0 Acres of Land, supra, The Court reversed the

order granting a new trial’

6 The "totality of the evidence” approach that looks beyond the

specific numbers used in the expert opinions is appropriate. See

1,162.65 Acres of Land, 498 F.2d at 1301. This approach reflects

the discretion accorded the jury in weighing the credibility of

witnesses and looking critically at experts' analyses. We cannot

conclude, as Norville urges, that each component of the jury's

award must be within the range of cach component of expert

testimony, and that evidence other than the appraisals has no role.

nll. Were we to adopt Norville’s suggested approach, we would

discredit the role of the jury and give unbounded discretion to the

district judge to override a jury's verdict. We conclude that, here,

the clear weight of the evidence justifies the jury's decision to find

Norville's appraisals suspect and to reject he appraisers’ assertions

of diminished value in the remaining property.

Id at 1142.

7 The district court erred in granting a new trial. Where the jury's

verdict is not against the clear weight of the evidence, a district

court abuses its discretion in ordering a new trial. See Roy, 896

F.2d at 1176. Such is the case here. We find no evidence of

impropriety in the jury proceedings or in the jury instructions. The

district court should not second-guess a jury verdict based on a

juror's statements to the press after a verdict is entered. All of the

evidence, including that which weakens appraisers’ expert opinions

25

In the present case, the jury’s verdict was not outside the

range of evidence presented, when the evidence is evaluated as

a whole. The trial court erred in that it improperly

compartmentalized the verdict (e.g., negligence and fraud)

without reviewing the damages in their entirety. That approach

had a significant impact as the negligence and fraud awards

were diminimus in comparison to the other damages awarded

in this case. Moreover, the larger damages were not flawed

(e.g., Breach of Contract and Breach of the Covenant of Good

Faith and Fair Dealing). The test that should be imposed is

based on the "totality" of the evidence. When considered in

their entirety, the damages are reasonable, and not against the

clear weight of the evidence.

When the evidence is viewed it is “totality”, the verdict was

reasonable and supported by the evidence presented at trial

The jury verdict was reasonable and supported by the

evidence introduced at trial. Petitioner lost millions of dollars

due to fraud in the accounting for his markers. If the “totality of

damages” approach had been used, the courts would realize that

the damages are actually understated as the evidence reflects

that Ms. Mattes actually won over three million dollars.

If Petitioner won $3,262,000 he would not have been

required to use the 2 Bally’s checks. The amounts of those

checks are $1,363,000 and $1,468,000 The total including the

converted checks total $6,093,000 before considering

defamation and punitive damages.

as to the value of the property or the likelihood that the remainder

will diminish in value must be considered. Severance damages need

not be awarded in every partial takings case. The jury award was

not outside the range of evidence presented and a new trial should

not have been granted.

Id at 1143, [emphasis added].

—

26

The jury awarded $1,000,000 in defamation damages

and $1,500,000 of punitive damages. The defamation damages

are reasonable as Petitioner was approved for credit in amounts

ranging from 2,000,000 to 4,000,000 over the years. As is

discussed below, after being accused of kiting, Petitioner could

not obtain credit in Las Vegas. Obviously, the rumors reduced

his credit value from $4,000,000 to -0-. When considered in

totality, the proper evidence supports damages of $10,093,000,

before punitive damages are even considered. Since just over

$8,000,000 in damages was awarded, including punitive

damages, the “totality” analysis would find that the awarded

damages were more than reasonable.

The District Court erred in inquiring from the jurors as to

how they calculated damages in the underlying case.

During the hearing on this matter the District Court

admitted that it had specifically discussed with jurors how they

reached their decision on the damages in this case: This was

improper.

In United States of America v. 4.0 Acres of Land, \75

F.3d 1133; 199 U.S. App.LEXIS 8457 (1999), the Ninth

Circuit addressed this issue and ruled.*

A juror's observations may not be used as grounds to grant a new

trial absent exceptional circumstances. Rule 606(b) of the Federal

Rules of Evidence prohibits a juror from testifying about the jury's

deliberations or how the jurors reached their conclusions unless

extraneous prejudicial information was improperly brought to the

jury's attention." Neither party alleges that extrancous prejudicial

information was brought to the jury's attention. Rule 606(b) also

prohibits any evidence of any statement by a juror "concerning a

matter about which the juror would be precluded from testifying"

from being used in an inquiry into a jury's verdict. There was no

official inquiry into the jury's verdict in this case. Apparently, the

juror's post verdict statements to the press distorted the lens through

which the district court viewed the verdict. The statements should

not have been considered. n10.

27

The Ninth Circuit erred in stating that the District

Court’s inquiry of the jurors was not improper. FRE 606(b)

prohibits discussions with jurors regarding their mental

processes (i.e., prior to a resolution of post trial motions).

In plain language Rule 606(b) clearly prohibits the use

of juror's statements or mental impressions that occurred during

deliberations to impeach a verdict. Fed. R. Evid. 406(b).’ See

United States v. Henley, 238 F.3d 1111, 1117-1118 (9tb Cir.

2001) (testimony about juror's mental processes in reaching

verdict barred by Rule 606(b)); United States v. 4.0 Acres of

Land,\75 F.3d 1133, 1140 (9th Cir. 1999) (same); Moruan v.

Woessner, 997 F.2d 1244, 11260-1262 (9th Cir. 1993) (same).

Similarly, Rule 606(b) prohibits inquiry into a juror's

statements or mental impressions during deliberations. When

the District Court specifically discussed with jurors how

damages were arrived at by the jury, it erred. The Ninth Circuit

should have reversed the trial court’s order granting a new

trial, thereby reinstating the jury's verdict.

The Appellate Court affirmed the dismissal of the

conversion claim based on its misinterpretation of the

Id. at 1140.

' (b) Inquiry into validity of verdict or indictment:

Upon an inquiry into the validity of a verdict or indictment, a juror

may not testify as to any matter or statement occurring during the

course of the jury's deliberations or to the effect of anything upon

that or any other juror’s mind or emotions as influencing the juror

to assent to or dissent from the verdict or indictment or concerning

the juror’s mental processes in connection therewith, except that a

juror may testify on the question whether extraneous prejudicial

information was improperly brought to the jury's attention or

whether any outside influence was improperly brought to bear

upon any juror. Nor may a juror's affidavit or evidence of any

statement by the juror concerning a matter about which the juror

would be precluded from testifying be received for these purposes.

28

Nevada Revised Statutes regarding the jurisdiction of the

Nevada Gaming Control Board.

The final decision of the District Court was to dismiss

the conversion claim for lack of subject matter jurisdiction.

Throughout this case, the Respondents had argued that

jurisdiction lay exclusively with the Nevada Gaming Control

Board. The District Court disagreed on numerous occasions. In

fact, the Defendants went so far as to seek certification of this

issue to the Nevada Supreme Court, which the District Court

also denied. The Ninth Circuit Court of Appeals affirmed,

incorrectly ruling that a marker 1s not a credit instrument, and

totally ignoring the checks that Respondents stopped payment

on and converted the funds.

The Nevada Gaming Control Board absolutely DOES NOT

have exclusive jurisdiction to resolve a disputed evidenced

by a credit instrument.

As discussed above, a large part of this case involves

the propriety of a number of “credit instruments” . The Nevada

Gaming Control Board has exclusive jurisdiction to resolve a

disputed claim, except when the same is evidenced by a credit

instrument.10

Obviously, the Nevada Supreme Court has recognized

the exception applying to credit instruments. Undisputedly, the

The Nevada Gaming Control Board has exclusive jurisdiction to

resolve a disputed claim, such as Sengel’s, by a patron of a gaming

license for payment of a gambling debt that is not evidenced by a

credit instrument. NRS 463.361 (2)(a).nl No other remedy [*569]

exists to enforce a [***5] gaming debt not evidenced by a credit

instrument. NRS 463.361 (1).

See Sengel v. IGT, 116 Nev. 565, at 568,569; 2 P.3d 258; 2000 Nev. LEXIS

77 (2000).

29

Mattes debt involves suspect credit instruments. Since this

issue has already been resolved by the Nevada Supreme Court

and is expressly provided for by statute, the trial and appellate

courts erred in ruling that the Nevada Gaming Control Board

had exclusive jurisdiction. This Court should interpret the plain

language of the statute, and issue a writ to the Ninth Circuit

because the markers in dispute in this proceeding clearly are

credit instruments that are specifically excluded by statute.

if the manner of the game is disputed, then Gaming Control

Board must be immediately notified.

Pursuant to N.R.S. 463.362, if there is a dispute as to the

manner in which a game is conducted, which triggers

jurisdiction of the Gaming Control Board, the licensee, in this

case, Park Place, is required to immediately notify the gaming

control board:""

There is absolutely no evidence that Respondents

complied with NRS 463.362.1(a) or NRS §463.362 (i.e.,

notifying gaming of the dispute). The failure to notify gaming

is evidence that Respondents have never believed that “the

manner in which the game [was] conducted” was at issue, and

that this is not a dispute within the jurisdiction of the Nevada

Gaming Control Board.

” NRS 463.362 Resolution of dispute as to winnings, losses or

manner in which the game is conducted.

1.Whenever a licensee and a patron have any dispute as to alleged

winnings, alleged losses or the manner in which a gaine is

conducted, the licensee and the patron are unable to resolve the

dispute to the satisfaction of the patron and the dispute involves:

$500, the licensee shall immediately notify the board.

(a) At least $500, the licensee shall immediately notify the

board;

3. Failure of the licensee to notify the board or inform the

patron as provided in subsection | is grounds for disciplinary action

pursuant to NRS 463.310 to 463.3145, inclusive.

30

CONCLUSION

THEREFORE, Petitioner respectfully requests of this

Court that it GRANT this Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit.

Marina Tramontozzi

Counsel of Record

Kevin Mirch

MIRCH & MIRCH

320 Flint Street

Reno, Nv 89501

(775) 324-7444

la

No. 05-15248

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN MATTES,

Plaintiff - Appellant,

v.

BALLYS LAS VEGAS; PARIS HOTEL & CASINO;

PARK PLACE INC.,

Defendants - Appellees.

January 11, 2007, Argued and Submitted, San

Francisco, California

March 1, 2007, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE 32.1

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

COUNSEL: For STEVEN MATTES, Plaintiff -

Appellant: Kevin J. Mirch, Esq., Marie Mirch, MIRCH

& MIRCH, Reno, NV.

For BALLYS LAS VEGAS, PARIS HOTEL &

CASINO, PARK PLACE INC., Defendants -

Appellees: Scott M Mahoney, Esq, Las Vegas, NV; J.

Randall Jones, Esq, Jennifer Popick, Esq., HARRISON

KEMP & JONES, CHTD., Las Vegas, NV; Mark S.

Karris, LAW OFFICES, Las Vegas, NV.

JUDGES: Before: TASHIMA and CALLAHAN,

Circuit Judges, and SCHIAVELLI ** , District Judge.

4

OPINION

MEMORANDUM *

Before: TASHIMA and CALLAHAN, Circuit Judges,

and SCHIAVELLI **, District Judge.

Steven Mattes, a high stakes blackjack player, appeals

the district court's order setting aside an $ 8 million

jury verdict in his favor and granting a new trial, and

its subsequent grant of summary judgment in favor of

Appellees Park Place Entertainment Corp. and Parball

Corp. d/b/a Paris-Las Vegas and Bally's-Las Vegas

(collectively, "Paris"), which were erroneously sued

under other names. Mattes argues that the jury verdict

was proper and should not have been set aside, and that

even if that ruling is upheld, the district court should

not subsequently have granted summary judgment to

Paris in lieu of a new trial. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm in all

respects.’

We conclude that the jury's verdict was contrary to the

clear weight of the evidence; therefore, the district

court did not abuse its discretion in granting a new

trial. United States v. 4.0 Acres of Land, 175 F.3d 1133,

1139 (9th Cir. 1999); Landes Constr. Co. v. Royal Bank

of Can., 833 F.2d 1365, 1371 (9th Cir. 1987).

The breach of contract verdict was against the clear

weight of the evidence because there was no

substantial evidence that Paris agreed that the credit

line could not be revoked, had a specific duration, or

would be handled in a particular manner, and hence no

meeting of the minds. See, e.g., Roth v. Scott, 112 Nev.

3a

1078, 921 P.2d 1262, 1265 (Nev. 1996) (outlining

requirement for breach of contract); Back Streets, Inc.

v. Campbell, 95 Nev. 651, 601 P.2d 54, 55 (Nev. 1979)

(same). Moreover, Mattes' subjective interpretation of

the terms of the credit agreement were not supported

by the language of the agreement or any other

competent evidence.

The jury verdict on the breach of covenant claim was

similarly contrary to the evidence. In order to recover

on a contractual breach of covenant theory in Nevada,

Mattes would have had to show that his reasonable or

justified expectations were denied. Perry v. Jordan,

111 Nev. 943, 900 P.2d 335, 338 (Nev. 1995); Hilton

Hotels Corp. v. Butch Lewis Prods., 107 Nev. 226, 808

P.2d 919, 923-24 (Nev. 1991). Even if the evidence

established that Mattes expected to be able to continue

gambling, this expectation would have been legally

insignificant because courts have regularly held that

gamblers do not have rights to continue gambling on

credit or other terms. See, e.g., Uston v. Airport

Casino, Inc., 564 F.2d 1216, 1217 (9th Cir. 1977) (stating

that relationship between casino owner and prospective

gambler did not implicate "[t he policies upon which the

innkeeper's special common law duties rested," and

hence exclusion of gambler from casino was acceptable);

Spilotro v. State, 99 Nev. 187, 661 P.2d 467, 471 (Nev.

1983) ("Appellant does not have a constitutional right of

access to businesses, such as casinos, that are generally

open to the public.").

Mattes' tortious bad faith theory fails as a matter of

law, moreover, because he had no "special relationship"

with the casino. Nevada courts have "limited bad faith

tort actions to those cases involving special

4a

relationships characterized by elements of public

interest, adhesion, and fiduciary responsibility." Great

Am. Ins. Co. v. General Builders, Inc., 113 Nev. 346,

934 P.2d 257, 263 (Nev. 1997) (citation omitted). Mattes

fails to point to any cases that have established a "rare

and exceptional case" of special duty between a casino

and a gambler, or that indicate that such a relationship

might have arisen here. Id.; Hilton Hotels Corp., 808

P.2d at 923 n.4; K Mart Corp. v. Ponsock, 103 Nev. 39,

732 P.2d 1364, 1370 (Nev. 1987). The fact that both the

casino and Mattes are sophisticated in the business,

moreover, counts against the implication of any special

duty. Great Am. Ins. Co., 934 P.2d at 263. Accordingly,

the breach of covenant verdict was properly set aside.

The verdict was against the clear weight of the

evidence on the fraud claim as well. Most importantly,

the documents that Mattes relies on to establish the

alleged fraud fail to demonstrate either the existence of

a specific agreement that was violated or a

misrepresentation. As to Mattes' claim that there was

fraud in destroying evidence and that Bonanne

misrepresented to him that tapes would be maintained

and reviewed and that any errors would be corrected,

moreover, the evidence does not support Mattes’

contentions. Mattes cites a letter he sent to Paris

complaining about his stay in September 1999, but

Mattes did not mention destruction of evidence or

request that any evidence be preserved in this letter.

Mattes’ other exhibits are likewise inapposite, as for

instance Trial Exhibit ("TE") 40, which is a Hilton

document indicating that a certain tape "is saved," and

not evidence that the Paris Casino destroyed tapes.’

Mattes' claim for fraudulent inducement fails because

5a

Mattes did not introduce any evidence that the credit

line was revolving in the manner he suggested.

Moreover, Mattes’ speculation about forged markers

and accounting records is not supported with any

foundation to indicate that documents were altered or

that there is any nefarious reason for discrepancies.

The conversion claim is both based upon internal casino

documents about which there is no evidence Mattes

was competent to testify, and is nonetheless against the

clear weight of the evidence because of the extensive

testimony that the casino responded properly to

Mattes' situation by applying the check against his

debt. Accordingly, the district court properly set aside

the jury's verdict for conversion, as well.

The defamation verdict in this case was also against the

clear weight of the evidence. “A statement is

defamatory when it would tend to lower the subject in

the estimation of the community, excite derogatory

opinions about the subject, and hold the subject up to

contempt." K-Mart Corp. v. Washington, 109 Nev. 1180,

866 P.2d 274, 282 (Nev. 1993) (citation omitted). As

Mattes notes, a statement is considered slanderous per

se if it imputes that a plaintiff has committed a crime,

and the plaintiff will not need to prove damages in such

a case; instead, they are presumed. /d. at 283; Branda v.

Sanford, 97 Nev. 643, 637 P.2d 1223, 1225-26 (Nev.

1981).

That the casino had its own concerns about check

kiting, however, did not impute that Mattes had

committed a crime. Moreover, especially given Mattes’

own denial that Bonanne accused him of check kiting

and his and Patty Richards' attribution of his

6a

difficulties in Las Vegas to the lawsuit rather than to

any accusation of check kiting, the district court

properly concluded that a verdict for defamation was

against the clear weight of the evidence. There is no

evidence that Paris communicated its situation with

Mattes to anyone outside his family, and even the

communication to Mattes' family is only tenuously

linked to an accusation of check kiting, which Mattes’

family members, in any event, did not believe. The

district court did not abuse its discretion in finding that

Mattes was not accused, or damaged from the fact of

imputation, of kiting checks. Any non-check-kiting

comments are inactionable either because they are too

vague or because Mattes did not demonstrate that they

were untrue.’

Furthermore, the district court did not erroneously

hold it necessary to ascertain the jury's exact basis for

damages on each claim, and instead properly concluded

that the damages awarded were speculative and

warranted setting aside the verdict. Snyder v. Freight,

Constr., Gen. Drivers, Warehousemen & Helpers, Local

No. 287, 175 F.3d 680, 689 (9th Cir. 1999). Notably, to

the extent that the basis for the damages award

appears to have been prospective earnings from

gambling that Mattes was allegedly denied, such a

theory has been regularly rejected by the courts, which

refuse to allow recovery of speculative damages. Frantz

v. Johnson, 116 Nev. 455, 999 P.2d 351, 360 (Nev. 2000);

Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789, 799

(Nev. 1944). Mattes’ conjectural testimony and briefing

based on internal casino documents is insufficient to

establish a basis for damages. Accordingly, it was not

an abuse of discretion for the district court to respect

established rules against speculative damages. For all

Ta

of these reasons, the district court's setting aside of the

jury's verdict was proper.‘

We further conclude that the district court did not err

in granting defendants’ motion for summary judgment

post-trial, a question we review de novo. Universal

Health Servs. v. Thompson, 363 F.3d 1013, 1019 (9th

Cir. 2004); Seattle-First Nat'l Bank v. Conaway, 98

F.3d 1195, 1196 (9th Cir. 1996). Notably, we do not need

to reach the merits of the summary judgment

arguments raised below, because Mattes simply refers

this court to his arguments there for why summary

judgment should not have been granted. Incorporation

of arguments by reference in this manner is prohibited.

9th Cir. R. 28-1(b); Fed. R. App. P. 28(a)(9)(A); Cmty.

Commerce Bank v. O'Brien, 312 F.3d 1135, 1136 (9th

Cir. 2002). However, even if we address the merits of

the motion for summary judgment, the grant was

proper given Mattes’ lack of personal knowledge of the

documents he interprets and his failure to demonstrate

elements of his claims. Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

"A trial court can only consider admissible evidence in

ruling on a motion for summary judgment," Orr v. Bank

of Am., 285 F.3d 764, 773 (9th Cir. 2002) (citations

omitted), and a party opposing summary judgment

"must set forth specific facts showing that there is a

genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis

added); see Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,

888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) ("The

object of [Fed. R. Civ. P. 56(e)} is not to replace

conclusory allegations of the complaint or answer with

conclusory allegations of an affidavit.") (citations

omitted); 7T.W. Elec. Serv., Inc. v. Pacific Elec.

8a

Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987)

("[I]f a rational trier of fact might resolve the issue in

favor of the nonmoving party, summary judgment must

be denied.") (citation omitted) (emphasis added).*

Mattes' breach of contract claim fails because there is

no evidence to establish that he was damaged, even

accepting that there was a genuine issue of material

fact about the existence of an agreement in this case.

Gamblers do not have established rights to continue

gambling at particular casinos. Moreover, with respect

to internal casino documents and policy, Mattes failed

to establish that he possessed the requisite personal

knowledge to testify on these topics, and summary

judgment was proper.

Mattes' claim for breach of covenant fails because there

was no evidence of an obligation on the part of Paris to

allow Mattes to continue gambling, or of any special

relationship between Mattes and the casino. Great Am.

Ins. Co., 934 P.2d at 263; Hilton Hotels Corp., 808 P.2d

at 923 n.4.

With respect to the fraud claim, moreover, Mattes fails

to provide any properly admissible evidence to support

his theories, because they are based on internal casino

documents about which he had no demonstrated

competence to testify, and the damages are purely

speculative.

In fact, the evidence presented with respect to damages

is too speculative for each claim, since it hinges either

on prospective gambling winnings or on Mattes's

interpretation of documents about which he has no

established expertise. This fact defeats Mattes’

9a

defamation claim, as well. Accordingly, summary

judgment was properly granted against Mattes on each

of these claims.

We further conclude that the district court properly

ruled upon the conversion claim because, in its ultimate

iteration, it involved gaming debts which were not

evidenced by a credit agreement and, thus, falls

squarely within the exclusive jurisdiction of the Nevada

Gaming Control Board ("Board"). According to Nev.

Rev. Stat. § 463.361(1), and unless otherwise provided,

"gaming debts that are not evidenced by a credit

instrument are void and unenforceable and do not give

rise to any administrative or civil cause of action." Nev.

Rev. Stat. § 463.361(1). Instead, such gambling debts

are within the exclusive jurisdiction of the Board.

Erickson v. Desert Palace, Inc., 942 F.2d 694 (9th Cir.

1991); Devon v. Unbelievable, Inc., 820 F. Supp. 528, 529

(D. Nev. 1993); Sengel v. IGT, 116 Nev. 565, 2 P.3d 258,

260 (Nev. 2000). As this court has previously observed:

We do not believe the Nevada legislature intended to

allow parties to avoid the administrative process simply

by alleging fraud in a patent attempt to force a casino to

turn over alleged winnings. Under NRS 463.361,

parties who assert they are owed a gaming debt, fraud

or no fraud, are confined to the administrative process

followed by state judicial review.Erickson, 942 F.2d at

697 (emphasis added). Mattes’ claim falls clearly within

this category, because he is attempting to recover a

gaming debt allegedly owed, which he argues he

legitimately won or would have won. See id. at 696

("Nevada characteristically categorizes suits to collect

unpaid gambling winnings as gaming debts.") (citation

omitted). The district court properly noted the

10a

evolution of Mattes' conversion theory during the

course of the proceedings, and the shift in Mattes'

theory appropriately convinced the district court that

the claim was within the Board's exclusive jurisdiction.

For the reasons set forth herein, the orders of the

district court setting aside the jury verdict and

subsequently granting summary judgment in favor of

defendants are

AFFIRMED.

Footnotes

*This disposition is not appropriate for publication and

is not precedent except as provided by 9th Cir. R. 36-3.

**The Honorable George P. Schiavelli, United States

District Judge for the Central District of California,

sitting by designation.

1Because the parties are familiar with the facts and

procedural history, we do not recite them except to the

extent necessary to aid in understanding this

disposition.

2As to an alleged misrepresentation about Mattes'

credit, Mattes fails to point to specific evidence that he

indeed had fine credit and that this was impugned by

Paris. Although TE 4, a Hilton document, does indicate

that Mattes was approved to receive $ 1 million credit,

this fact does not establish that there was fraud in any

of Paris' concerns about Mattes ability to pay his debts.

To the contrary, there was trial testimony from casino

employees that the casinos’ evaluated credit

lla

independently, and also evidence that Mattes had had

difficulties in repaying casinos in the past.

3Mattes' slander by "pantomime" theory, based on

Mattes’ being escorted from the casino, is untenable.

The case of Washington, which Mattes cites, found

defamation by pantomime where the plaintiff was

approached on suspicion of shoplifting and then

"grabbed [], chased [], tackled [], handcuffed [], and then

led [] back into the store in front of a crowd of people."

866 P.2d at 283. The circumstances surrounding Mattes'

treatment, in contrast, would not impute that Mattes

was guilty of a crime.

4There is no indication in the record that the district

court used its post-trial conversation with jurors as a

basis for its subsequent rulings or to impeach the

verdict, thereby running afoul of the law or Federal

Rule of Evidence 606(b). Although "“[a] juror's

observations may not be used as grounds to grant a

new trial absent exceptional circumstances," 4.0 Acres

of Land, 175 F.3d at 1140, the comments at issue here

were not used as a basis for the district court's decision,

contrary to the situation, for instance, in 4.0 Acres of

Land. See id.

We need not reach the issue of bifurcation of the

punitive damages phase of trial or the merits of the

punitive damages award, because other defects in the

verdict, as the district court acknowledged,

necessitated setting aside the verdict. See, e.g.,

Consolidated Data Terminals v. Applied Digital Data

Sys., 708 F.2d 385, 388 (9th Cir. 1983) ("We likewise

vacate and remand the district court's award of

12a

punitive damages since they are dependent upon the

outcome of the retrial on the tort issues.").

5The district court noted, in deciding the motion for

summary judgment, that it had "the benefit of having

observed the universe of evidence at the November,

2002, trial of Plaintiff's claims," but there is no

indication -- contrary to Mattes' assertion -- that the

district court improperly assessed the evidence for

purposes of summary judgment by not viewing the

evidence in the light most favorable to Mattes, or that

the district court was motivated by any animosity

towards Mattes in its decision.

13a

Filed: 01/04/05

Case No.: CV-S-00- 1090-JCM (LRL)

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STEVEN MATTES,

Plaintiff,

VS.

PARIS PLACE, INC.; PARIS HOTEL AND

CASINO, INC.; BALLY'S LAS VEGAS; DOES I-X,

Defendants

ORDER GRANTING DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

This suit arises from an invitation to gamble at

the 1999 Grand Opening of the Paris Hotel & Casino

extended to Plaintiff, Steven Mattes ("Mattes"), a

highroller with a history of play at other Park Place

properties. Mattes claims that he accepted Paris'

invitation on the promise that he would be given a $2

_ million irrevocable revolving line of credit at Paris.

At some point during Mattes' trip, after Mattes

had drawn down the credit line and lost the entirety of

his front money, Paris decided not to continue to extend

Mattes any more credit and asked Mattes to move his

action to the Las Vegas Hilton. Mattes sued Park Place

Entertainment Corporation (incorrectly named as Park

Place, Inc. and hereinafter referred to as "PPE") and

Parball Corporation dba Bally's Las Vegas and Paris

Las Vegas (incorrectly named as Paris Hotel and

Casino, Inc. and Bally's Las Vegas and hereinafter

14a

referred to as "Paris"), asserting claims for Breach of

Contract, Breach of the Covenant of Good Faith and

Fair Dealing, Negligence, Fraudulent

Misrepresentation, Negligent Misrepresentation,

Fraudulent Inducement, Slander, and Conversion.

This Court presided over the November, 2002,

jury trial of these claims which resulted in a verdict in

Mattes' favor which was factually and_ legally

unsupported. On motion by the Defendants, this Court

set aside the verdict and ordered a new trial. (#141).

Discovery was not re-opened. On August 16, 2004,

Defendants filed a Motion for Summary Judgment (#

169) seeking summary adjudication of each of Plaintiffs

claims. Plaintiffs 61 page Opposition (#184) was

stricken by this Court on October 7, 2004, as a violation

of LR 7-4, and Plaintiff was granted leave to file a rule-

compliant opposition. (#190). Plaintiff's First Amended

Opposition filed on October 19, 2004, (#192) was, on its

face, a blatant violation of LR 10-1 and in effect LR 7-4,

and on December 3, 2004, this Court granted

Defendants' Motion to Strike the same. (# 199). Plaintiff

requested leave of court to try one last time to provide

a rule-compliant opposition, and on December 8, 2004,

this Court granted Plaintiffs request (#202) and

accepted his Second Amended Opposition. On

December 13, 2004, Defendants filed their Response to

Plaintiff's Second Amended Opposition to Motion for

Summary Judgment (#203).

On December 16, 2004, this Court held oral

argument on the Motion for Summary Judgment.

Plaintiff, Steven Mattes, appeared at the hearing

together with his counsel Kevin Mirch, Esq., and Marie

Mirch, Esq., and on behalf of Defendants, J. Randall

15a

Jones, Esq., and Jennifer C. Popick, Esq., appeared

along with Mark Clayton, Esq. This Court having: 1)

reviewed the Motion, Second Amended Opposition and

Response thereto; 2) the benefit of having observed the

universe of evidence at the November, 2002, trial of

Plaintiffs claims; and 3) scoured the record for any

genuine issue of material fact in support of Plaintiffs

claims, finds that Plaintiff's claims for Breach of

Contract, Breach of the Covenant of Good Faith and

Fair Dealing, Negligence, Fraudulent

Misrepresentation, Negligent Misrepresentation,

Fraudulent Inducement and Slander are unsupported

by the evidence. Simply, there exist no genuine issues

of fact to support Mattes' recovery upon any of these

theories, and summary judgment is dictated on each of

these claims as a matter of law. FRCP 56; Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The only claim which may present issues of fact

which potentially preclude summary judgment is

Plaintiffs conversion cause of action. As Plaintiff's

Second Amended Opposition explains, this claim is

based on Mattes' theory that "Mattes won $3,262,000

which was intentionally offset by forged, fraudulent,

unsigned markers ... used to justify false accounting

records." (Second Amended Opposition at p. 30). Mattes

further contends that "Defendants' own records prove

that the same were altered in order to offset the

amount earned by Mr. Mattes." Id. However, such

allegations put this claim squarely within the exclusive

jurisdiction of the Nevada Gaming Control Board and

divest this Court of jurisdiction pursuant to NRS

Chapter 463. See NEV. REV. STAT. §463.362;

Erickson v. Desert Palace, Inc., 942 F.2d 694 (9th Cir.

1991). Mattes’ claim is plainly one regarding a disputed

16a

gaming debt not evidenced by a credit instrument.

Erickson, 942 F.2d at 695 (citing Harrah's Club v.

_State Gaming Control .Bd., 104 Nev. 762, 766 P.2d 900

(1988); and State Gaming Control Bd. v. Breen, 99

Nev. 320, 323, 661 P.2d 1309, 1311 (1983)). "Under NRS

463.361, parties who assert they are owed a gaming

debt, fraud or no fraud, are confined to the

administrative process followed by state judicial

review.” Id. at 697. Thus, even if there were sufficient

genuine issues of material fact to preclude summary

judgment on the merits of Plaintiff's conversion claim,

it must nevertheless be dismissed for lack of subject

matter jurisdiction pursuant to NRS 463.361 et seq. as

jurisdiction over this claim is vested exclusively in the

Nevada Gaming Control Board.

Accordingly, Defendant's Motion for Summary

Judgment is hereby GRANTED. IT IS FURTHER

ORDERED that this case is DISMISSED, all other

pending motions are DENIED as moot, and the

JURY TRIAL and all further hearings are hereby

VACATED.

JUDGMENT SHALL BE ENTERED

ACCORDINGLY.

17a

Filed: 5/2/07

No. 05-15248

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN MATTES,

Plaintiff - Appellant,

v.

BALLYS LAS VEGAS; PARIS HOTEL & CASINO;

PARK PLACE INC.,

Defendants - Appellees.

ORDER

JUDGES: Before: TASHIMA and CALLAHAN,

Circuit Judges, and SCHIAVELLI ** , District Judge.

The panel has voted to deny the petition for

rehearing. Judge Callahan votes to deny the petition for

rehearing en banc, and Judges Tashima and Schiavelli

so recommend. The full court has been advised of the

petition for rehearing en banc and no judge has

requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition

for rehearing en banc are denied.

Footnote

**The Honorable George P. Schiavelli, United States

District Judge for the Central District of California,

sitting by designation.

18a

Nevada Revised Statute §463.361

463.361. Enforceability and resolution of gaming

debts.

1. Except as otherwise provided in NRS

463.361 to 463.366, inclusive, and 463.780,

gaming debts that are not evidenced by a

credit instrument are void and

unenforceable and do not give rise to any

administrative or civil cause of action.

2. A claim by a patron of a licensee for

payment of a gaming debt that is not

evidenced by a credit instrument may be

resolved in accordance with NRS 463.362

to 463.366, inclusive:

(a) By the board; or

(b) If the claim is for less than $500, by a

hearing examiner designated by the board.