                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

Husain v. Casino Contr Comm
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3636




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 07-3636
                                   ___________

                                SYED M. HUSAIN,
                                        Appellant

                                         v.

CASINO CONTROL COMMISSION; C. G. ALLEN, Commission Inspector; LINDA M.
 KASSEKERT, an individual; MICHAEL A. FEDORKO, an individual; WILLIAM T.
SOMMELING, an individual; MICHAEL C. EPPS, an individual; RALPH G. FRULIO,
individual; ESQ. SETH H. BRILIANT, an individual; DIANNA W. FAUNTLEROY, an
 individual; SALVATORE ESPOSITO, Pit Manager, Showboat Casino; TOM SCOTT,
                     Director of Surveillance, Showboat Casino
                           ________________________

                    Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 06-cv-04923 )
                   District Judge: Honorable Renee Marie Bumb
                              _______________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 7, 2008

             Before: RENDELL, JORDAN and GARTH, Circuit Judges

                             (Filed February 20, 2008)
                                    ___________

                            OPINION OF THE COURT
                                 ___________

PER CURIAM

     Syed M. Husain appeals pro se from an order of the United States District Court
for the District of New Jersey denying his motion for default judgment and granting

Defendants’ respective motions to dismiss. We will affirm the judgment of the District

Court.

                                              I.

         This case arises out of an alleged incident on August 14, 2006, at the Showboat

Casino (“Casino”). According to Husain, he was playing blackjack at a $25 table when a

representative of the Casino accused him of cheating. Denying that he ever cheated,

Husain complained to Reginald Allen, an inspector at the Casino Control Commission

(“Commission”) booth, who then filed an incident report. Dissatisfied with the report and

his alleged inability to obtain further information from the Commission, Husain

commenced a pro se action in the District Court. He identified the Commission itself, the

individual Commissioners, Allen, and Commission attorneys as “Second Party

Defendants” (collectively “Commission Defendants”). He further named two Casino

employees as “Third Party Defendants” (collectively “Casino Defendants”). In his

amended complaint, Husain claimed that the Commission Defendants violated his federal

due process and equal protection rights. The District Court also construed his pleading as

containing state-law claims, such as for intentional and negligent infliction of emotional

distress, against the Commission Defendants and, possibly, the Casino Defendants.

         In an order entered on February 6, 2007, the Magistrate Judge granted Husain’s

motion to file the amended complaint. Husain then moved for a default judgment against



                                              2
the Commission Defendants on March 6, 2007. Having earlier sought the dismissal of

Husain’s initial complaint, the Commission Defendants moved to dismiss his amended

complaint, initially on March 2, 2007, and again on March 12, 2007. The Casino

Defendants likewise filed a motion to dismiss. In an order entered on August 15, 2007,

the District Court denied Husain’s motion for default judgment and granted the motions

to dismiss. It dismissed with prejudice Husain’s federal claims against the Commission

Defendants under Federal Rule of Civil Procedure 12(b)(6). The District Court further

dismissed without prejudice his state-law claims against both sets of Defendants pursuant

to 28 U.S.C. § 1367(c)(3). Husain timely appealed, and he has filed a motion to strike the

Commission Defendants’ appellate brief.

                                            II.

      Husain argues that the District Court erred in denying his motion for default

judgment against the Commission Defendants, claiming that they failed to respond to his

amended complaint within the twenty-day period in which to do so.1 Nevertheless, as the

District Court noted, entry of default by the Clerk under Federal Rule of Civil Procedure

55(a) constitutes a general prerequisite for a subsequent default judgment under Rule

55(b). See, e.g., 10A Charles Alan Wright et al., Federal Practice and Procedure § 2682



  1
     The Court has appellate jurisdiction over this matter under 28 U.S.C. § 1291. We
review the denial of a motion for default judgment for abuse of discretion. See, e.g.,
Jorden v. Nat’l Guard Bureau, 877 F.2d 245, 250-51 (3d Cir. 1989). We exercise plenary
review over a district court’s decision to grant a motion to dismiss under Rule 12(b)(6).
See, e.g., Green v. America Online, 318 F.3d 465, 470 (3d Cir. 2003).

                                            3
(2007) (“Prior to obtaining a default judgment under either Rule 55(b)(1) or Rule

55(b)(2), there must be an entry of default as provided by Rule 55(a).” (footnote

omitted)). Contrary to Husain’s characterizations, the Clerk did not enter either a default

or a default judgment when it docketed his motion for default judgment on March 6,

2007, or set the return date for his motion on the following day. A review of the District

Court docket confirms that no default was ever entered against the Commission

Defendants, and the District Court accordingly was correct to deny Husain’s motion for

default judgment.

       Setting aside the issue of entry of default, the District Court’s denial of default

judgment was nevertheless appropriate on other grounds. See, e.g., Hi Tech Trans, LLC

v. New Jersey, 382 F.3d 295, 297 n.3 (3d Cir. 2004) (stating that court of appeals may

affirm for any reason supported by record). In deciding whether to grant a default

judgment, a court may consider whether: (1) a denial would prejudice the plaintiff; (2) the

defendant appeared to have a litigable defense; and (3) the defendant’s delay was caused

by culpable conduct. See, e.g., Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir.

2000). Husain himself appeared to suffer little, if any, prejudice from the denial of his

motion, and there is no real indication that the Commission Defendants’ relatively short

delay in responding to his amended complaint was due to any misconduct. On the

contrary, the docket reveals that the Commission Defendants vigorously defended against

Husain’s claims throughout this litigation. For instance, they filed a motion to dismiss the



                                              4
amended complaint on March 2, 2007, less than a month after the entry of the Magistrate

Judge’s order granting leave to file an amended complaint and four days before Husain

even filed his default judgment motion. As we discuss below, Husain’s own claims

lacked merit, and the Commission Defendants therefore possessed, at the very least, a

strong defense to his claims. In the end, the District Court’s ultimate disposition of this

case was consistent with our well-established policy of “disfavoring default judgments

and encouraging decisions on the merits.” Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979,

981 (3d Cir. 1988) (citation omitted).

       It is unclear whether Husain actually challenges on appeal the District Court’s

dismissal with prejudice for failure to state a claim under Rule 12(b)(6). In any case, we

conclude that the District Court properly dismissed his federal due process and equal

protection claims against the Commission Defendants.

       The District Court dismissed Husain’s due process claims on the grounds that he

failed to establish that the Commission Defendants’ conduct implicated a federally

protected right. On appeal, Husain does not specify the liberty or property interests

allegedly at issue here, and he fails to address the District Court’s actual finding with

respect to the absence of a constitutionally protected interest. We've previously observed

that there is no constitutionally protected property interest in the opportunity to gamble

and that, therefore, efforts like those of the Commission Defendants in this case do not

violate due process rights. Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173,



                                              5
189-90 (3d Cir. 2000).

       Husain alleged that his equal protection rights were violated by a gaming

regulation requiring that casinos conduct recorded surveillance only of gaming tables with

posted minimum wagers of $100.00 or more as opposed to mandating such surveillance

of all blackjack tables regardless of the wager. See N.J. Admin. Code. § 19:45-1.10(d).

According to Husain, the Commission Defendants thereby created an unconstitutional

distinction within the same class of blackjack tables. However, as the District Court

pointed out, there is no fundamental constitutional right to gamble or to have one’s

gambling efforts under surveillance, and relative poverty or wealth alone do not constitute

“suspect classes” for purposes of the Equal Protection Clause. See, e.g., Abdul-Akbar v.

McKelvie, 239 F.3d 307, 317 (3d Cir. 2001) (en banc); Doug Grant, Inc., 232 F.3d at 189.

Finally, the District Court properly concluded that the surveillance regulation satisfied the

applicable “rational basis” standard.2 Cf. Doug Grant, Inc., 232 F.3d at 189 (applying

rational basis test and concluding that anti-card-counting measures adopted by casinos

and approved by Commission were rationally related to legitimate state interest in

protecting casino industry’s financial viability).

       Turning to the remaining substantive claims in this litigation, Husain does not

challenge on appeal the District Court’s dismissal without prejudice of his state-law



  2
   We further note that the regulations do require casinos to have the capability of
monitoring every gaming table. See N.J. Admin. Code § 19:45-1.10(b)1(i).


                                              6
causes of action against the Commission and the Casino Defendants. With respect to the

Casino Defendants, he admits that he only included them as parties in order “to obtain

relevant information.” (Appellant’s Reply Br. at 12.) Accordingly, the District Court

properly declined to exercise jurisdiction over supplemental state-law claims after it

dismissed all claims “over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

                                             III.

       For the foregoing reasons, we conclude that the District Court committed no

reversible error by denying Husain’s motion for default judgment and granting the

respective motions to dismiss of the Commission Defendants and the Casino Defendants.

Likewise, his pending motion to strike the appellate brief of the Commission Defendants

is DENIED.3




  3
     Husain asserts, inter alia, that the Commission Defendants’ appellate brief contains
numerous fraudulent statements and that the brief itself was untimely. Nevertheless, the
alleged instances of fraud amount, at best, to mere disagreements between the parties
regarding such matters as the purpose of the litigation, the underlying facts, the
procedural history in the District Court, and the procedural rules and case law.
Furthermore, the Commission Defendants requested and were granted an extension of
time to file their brief, and their brief was filed within the extended time period. Finally,
we note that we would have reached the same result in this appeal even without the
benefit of the Commission Defendants’ brief.

                                              7
