Johnnie Brown v. Argosy Gaming Company , L.p.

1 This successive appeal has been submitted to the original panel
pursuant to Operating Procedure 6(b). After reviewing the briefs
and the record, the panel is unanimously of the view that oral ar-
gument is unnecessary. Accordingly, the appeal has been submitted
on the briefs and the record alone. See Fed. R. App. P. 34(a).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2064
J OHNNIE B ROWN ,
Plaintiff-Appellant,
v.
A RGOSY G AMING C OMPANY , L.P.,
Defendant-Appellee,
____________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 02 C 209, Sarah Evans Barker, Judge.
____________
S UBMITTED A UGUST 9, 2004—D ECIDED S EPTEMBER 15, 2004 1
____________
Before P OSNER , K ANNE , and R OVNER , Circuit Judges.
R OVNER , Circuit Judge. According to Ms. Johnnie Brown,
the plaintiff-appellant, her husband has a problem with
gambling. The Browns live in Cincinnati, Ohio, which is
approximately twenty minutes from the defendant-appel-
lee’s casino, the Argosy Casino, in Lawrenceburg, Indiana.

-- 1 of 10 --

2 No. 04-2064
Brown alleges that for the last several years, her husband
has gambled at the casino six to seven days a week, losing
between $15,000 and $20,000 per year for the last four
years. As a consequence of these losses, Ms. Brown claims,
the Browns have been unable to make their mortgage pay-
ments or their insurance payments, their telephone and
water service has been disconnected, and they have been
threatened with termination of gas and electric service. At
times they have been unable to buy food.
Brown asked her husband to stop gambling or to do so
modestly but he has steadfastly refused. She sought the
assistance of Gamblers Anonymous but that organization
informed her that it could only act at the request of the
gambler and not a third party. Approximately two years
before the filing of this appeal, Brown asked a supervisor of
the Casino to help her to stop or abate her husband’s
gambling. Argosy refused, claiming that there was nothing
that they could do because Mr. Brown was “of age.”
Brown had a heart attack in 1999 and a mild stroke in
2001, both of which she attributes to the anxiety caused by
her husband’s gambling losses. Ms. Brown, however, does
not wish to divorce her husband.
Brown filed suit in the district court of the Southern
District of Indiana, claiming that Argosy was negligent in
its failure to exercise reasonable care after being notified
that her husband was a compulsive gambler and was con-
tinuing to gamble at the peril of his family. Brown initially
sought injunctive relief and damages. A few days after filing
the complaint, Brown filed a motion to certify to the Indiana
Supreme Court the state law question raised by her com-
plaint. In response, Argosy filed a motion to dismiss and in
opposition to the motion to certify. The District Court judge
granted the motion to dismiss and denied Brown’s motion
to certify and her motion for preliminary injunctive relief.
Brown appealed only the denial of the motion to certify the
following question to the Indiana Supreme Court:

-- 2 of 10 --

No. 04-2064 3
Whether a wife has a cause of action against a casino
where a husband is a compulsive gambler, where the
husband has incurred substantial gambling losses, which
occurred after the wife made a request to the casino to
bar her husband, and which resulted in serious emo-
tional and financial distress to the family.
We dismissed the appeal, noting the two procedural gaps
that denied us jurisdiction. First, the district court below
granted Argosy’s motion to dismiss without prejudice—a
non-final, non-appealable judgement. Brown v. Argosy
Gaming Co., 360 F.3d 703, 705 (7th Cir. 2004). Second, we
concluded that an order refusing to certify a question to a
state supreme court was not an independently appealable
order, and that the “litigant whose motion to certify has
been denied may appeal the denial of the motion along with
the remainder of the final order.” Id. at 706. We noted that
“[c]ertification is meaningless without a viable cause of
action in which to use the answer received from the state
supreme court.” Id. at 706, n.4.
Notwithstanding these statements, Brown is before us
again appealing only the denial of the motion to certify. On
remand, Brown successfully moved to transform her prior
dismissal into one with prejudice. (R. at 39, 42), but rather
than appealing both the grant of the motion to dismiss (now
a final, appealable order) and the denial of the motion to
certify, Brown again appeals only the latter and adds to it
a motion to this court to certify the question to the Indiana
Supreme Court pursuant to Rule 52 of the Circuit Rules of
the United States Court of Appeals for the Seventh Circuit
(Cir. R. 52).
We are as puzzled by this decision as we were the first
time we heard Brown’s appeal. For even if we were to cer-
tify the matter to the Indiana Supreme Court, and even if
the Indiana Supreme Court were to accept certification and
decide that a wife does have a cause of action against a
casino under these circumstances, what would Brown do
with that answer? She claims that “[a] favorable ruling will

-- 3 of 10 --

4 No. 04-2064
simply permit this case to continue in the District Court.”
Appellant’s brief at 9. The district court, however, denied
Brown’s motion for a preliminary injunction and granted
Argosy’s motion to dismiss without prejudice, and Brown
failed to appeal either order. There simply is no more “case”
to which Brown could apply the ruling from the Indiana
Supreme Court. The situation would be different if Brown
were claiming that, had the district court received the
appropriate answer from the Indiana Supreme Court, it
would not have erred in granting the motion to dismiss.
Brown, however, clearly and deliberately chose to appeal
only the denial of the motion to certify the question to the
state supreme court.
To that appeal, Brown has added a separate motion to
this court to certify the question of state law to the Indiana
Supreme Court pursuant to our Circuit Rule 52(a) which
reads:
When the rules of the highest court of a state provide
for certification to that court by a federal court of ques-
tions arising under the laws of that state which will
control the outcome of a case pending in the federal
court, this court, sua sponte or on motion of a party, may
certify such a question to the state court in accordance
with the rules of that court, and may stay the case in
this court to await the state court’s decision of the ques-
tion certified. The certification will be made after the
briefs are filed in this court. A motion for certification
shall be included in the moving party’s brief.
Cir. R. 52. Most significantly, the rule allows us to certify
only those questions “which will control the outcome of a
case pending in the federal court.” Id. In interpreting the
rule, we have considered many factors warranting certifica-
tion but have stated that “[t]he most important consider-
ation guiding the exercise of this discretion is whether the
reviewing court finds itself genuinely uncertain about a
question of state law that is vital to a correct disposition of
the case.” State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d

-- 4 of 10 --

No. 04-2064 5
2 Furthermore, Indiana Rules of Appellate procedure allow a fed-
eral courts to “certify a question of Indiana law to the Supreme
Court when it appears to the federal court that a proceeding
presents an issue of state law that is determinative of the case
and on which there is no clear controlling Indiana precedent.” Ind.
R. of App. P. R. 64(A) (emphasis ours). It is worth emphasizing that
principles of federalism bar us from compelling the Indiana
Supreme Court to do anything. It has full discretion to dictate
which questions from the federal courts it will answer. And so we
may certify questions all day and night, but if the question does
not meet the requirements of the Indiana Supreme Court—that
the question presents an issue that is determinative of the case—
the requests will rightfully fall on deaf ears.
666, 671 (7th Cir. 2001) . As we explained above, however,
there are no pending questions before a federal court to which
the answer from the Indiana Supreme Court can be applied.
We see no reason to impose upon the Indiana Supreme
Court to answer a question that will not aid either party in
any ongoing federal litigation. 2
We could end our discussion of certification here. Without
an underlying case in which to apply the answer from the
state supreme court, certification can never be warranted.
We will consider the remaining factors, nevertheless, if only
to make it absolutely clear that this case is not an appropri-
ate one for certification. Those other factors include whether
the case concerns a matter of vital public concern, the issue
will likely recur in other cases, resolution of the question to
be certified is outcome determinative of the case, and
whether the state supreme court has yet to have an oppor-
tunity to illuminate a clear path on the issue. Allstate Ins.
Co. v. Menards, Inc., 285 F.3d 630, 638-39 (7th Cir. 2002);
Pate, 275 F.3d at 672; In re Badger Lines, Inc., 140 F.3d
691, 698 (7th Cir. 1998). We have, at times, also considered
whether the supreme court of the state would consider the
issue one of importance to the growth of the state’s jurispru-
dence, whether resolution will benefit other future litigants,
or whether intermediate courts of the state are in disagree-

-- 5 of 10 --

6 No. 04-2064
ment. Allstate Ins. Co., 285 F.3d at 639. On the flip side, a
case is not a good candidate for certification where the case
is fact-specific, where there is not much uncertainty regarding
the issue in dispute, and where resolution of the question
will not dispose of the case. Id.
Although we agree that gambling addiction and its at-
tendant costs to families and society are matters of public
concern, and we note that the question would be one of first
impression for the Indiana Supreme Court, this case is not
otherwise worthy of certification. As we have already dis-
cussed, it is not outcome determinative. Furthermore, interme-
diate courts of the state are not in disagreement, and there
is little uncertainty regarding the issue. While this case was
pending, the intermediate court of Indiana declared in
Stulajter v. Harrah’s Indiana Corp., 808 N.E.2d 746, 749 (Ind.
Ct. App. 2004), that Indiana’s gaming statutes and regu-
lations do not create a private cause of action to protect
compulsive gamblers from themselves. This court, applying
Indiana law, had earlier come to the same conclusion. Merrill
v. Trump Indiana, Inc., 320 F.3d 729, 732 (7th Cir. 2003).
Although neither of these cases addressed the slightly dif-
ferent question of whether a casino owes any duty to the
family member of a compulsive gambler, such an extrapola-
tion does not require much of a leap. Nor do we think
resolution of this minor variation will contribute much more
than Stulajter and Merrill have to the growth of Indiana’s
jurisprudence on this matter. “When the state Supreme
Court has not decided the issue, the rulings of the state
intermediate appellate courts must be accorded great weight,
unless there are persuasive indications that the state’s highest
court would decide the case differently.” Pate, 275 F.3d at
669.
Furthermore, appellants ask us to certify a fairly case-
specific question:
Whether a wife has a cause of action against the
casino where the husband is a compulsive gambler,
where the husband has incurred substantial gambling

-- 6 of 10 --

No. 04-2064 7
losses which occurred after the wife made a request to
the casino to bar her husband and which has resulted in
serious emotional and financial distress to the family.
It requires (1) an intact marital relationship and a wife
unwilling to divorce her husband and ask a family law court
to protect her share of the marital assets, (2) a compulsive
gambler (however that is defined), (3) a request by one
spouse that the casino bar the other spouse, (4) the gam-
bler’s objection to his exclusion from the casino, (5) subse-
quent substantial gambling losses after the request, and (6)
serious emotional and financial distress. We do not think
certification of such a specific question will benefit multitudes
of future litigants. See Hanlon v. Town of Milton, 186 F.3d
831, 835 (7th Cir. 1999) (“We also recognize that future
litigants have a real and substantial interest in knowing”
the answer to the question the appellant seeks to certify).
Finally, although not a primary factor, we are entitled to
take into account whether the request for certification to
the state court came from the party who chose federal juris-
diction in the first place. See Schmitt v. Am. Family Mut.
Ins. Co., 161 F.3d 1115, 1117 (7th Cir. 1998). As we have
noted, “it’s not a proper alternative to proceeding in the
first instance in state court to sue in federal court but ask
that the suit be stayed to permit certifying the interpretive
issue to the state court, thus asking that the suit be split
between two courts.” Doe v. City of Chicago, 360 F.3d 667,
672 (7th Cir. 2004). This reasoning seems particularly apt
where the plaintiff appeals only the certification question
and there are no other issues remaining in federal court. In
short, if the plaintiff had wanted to know only whether the
Indiana courts would support her cause of action, she had
the option of bringing her case there in the first instance.
For these same reasons, we also hold that the district
court did not err by refusing to certify the question to the
Indiana Supreme Court. The decision to grant or deny a
motion to certify a question of state law is discretionary
with the district court. United Farm Bureau Mut. Ins. Co.

-- 7 of 10 --

8 No. 04-2064
v. Metro. Human Relations Comm’n, 24 F.3d 1008, 1015, n.4
(7th Cir. 2001); see also Lehman Bros. v. Schein, 416 U.S.
386, 391, 94 S. Ct. 1741, 1744, 40 L. Ed. 2d 215 (1974).
Consequently, we review the decision to deny a motion to
certify for abuse of discretion, and we will not second-guess
the decision of a trial judge if it is within the range of op-
tions from which one would expect a reasonable trial judge
to select. Liu v. Price Waterhouse, L.L.P., 302 F.3d 749, 754
(7th Cir. 2002). As we have noted before, “even if there is no
clear guidance from a state court, and a case technically
meets the standards for certification, certification is neither
mandated nor always necessary.” Pate, 275 F.3d at 673. In
short, “we approach the decision to certify with circumspec-
tion.” Id. at 671. Consequently, Brown faces a steep uphill
climb; first to overcome the liberal abuse of discretion
standard and second to overcome our hesitancy to utilize
the certification process with its incumbent costs to the
litigants and the state court system.
The factors that the district court must consider when
deciding whether to certify a case to a state supreme court
are more or less the same as those that this court considers
when acting pursuant to Circuit Rule 52. See Patel v.
United Fire & Cas. Co., 80 F. Supp. 2d 948, 953-56 (N.D.
Ind. 2000) (stating that certification only appropriate where
issue likely to recur, where it will be dispositive of the case,
and has not been considered by the court); Carver v. Condie,
No. 94 C 2240, 2000 WL 204240, at *11-12 (N.D. Ill. Feb.
15, 2000) (using Seventh Circuit Rule 52 and interpreting
case law as a basis for determining whether certification is
appropriate); Travelers Cas. & Sur. Co. v. Elkins Constrs.,
Inc., No. IP97-1807-C-T/G, 2000 WL 748091, at *7 (S.D.
Ind. 2000) (certification only appropriate if there are no
clear controlling precedents from the state supreme court);
Banco Panamericano, Inc. v. Health Risk Mgmt., Inc., 78 F.
Supp. 2d 804, 805 (N.D. Ill. 1999) (certification appropriate
when federal court is faced with novel and unsettled ques-

-- 8 of 10 --

No. 04-2064 9
tions of state law); Koval v. Simon-Telelect, Inc., 979 F. Supp.
1222, 1230, n.6 (N.D. Ind. 1997) (noting that certification
should be limited to questions that are clearly defined and
outcome determinative); Pekin Ins. Co. v. Super, 912 F.
Supp. 409, 412 (S.D. Ind. 1995) (stating that certification is
not appropriate where the district court is confident that it
can accurately predict how the Indiana Supreme Court
would rule and where question is not one which arises
frequently). Of course the district court must also consider
Rule 64 of the Indiana Rules of Appellate Procedure which
allows a district court to certify a question to the Indiana
Supreme Court where the answer to the question will be
outcome determinative and there are no clear controlling
precedents in the decisions of the Indiana Supreme Court.
Travelers Cas. & Sur. Co., 2000 WL 748091, at *7 (citing a
prior version of Ind. R. of App. P. 64).
The district court considered the factors outlined in Allstate
and Pate, supra, and determined that they counseled against
certifying the question to the Indiana Supreme Court. (R. at
28, pp.3-4). Specifically, the district court found that Brown
presented a fact-intensive question and that the answer to
that question would not necessarily apply to future litigants
whose circumstances differ from those articulated in the
question. Furthermore, the district court noted that the
Indiana legislature by its silence has declined to impose the
very duty that Brown advocates in this case, and that her
analogy to dram shop liability was too attenuated to justify
the imposition on the resources of the Indiana Supreme
Court. (Id. at p.4).
For all of the reasons that we refuse to certify this matter
to the Indiana Supreme Court pursuant to our own Circuit
Rule 52, we hold that the district court judge did not abuse
her discretion in coming to the same conclusion.
For this reason we A FFIRM the district court’s denial of
the motion for certification and deny Brown’s motion for

-- 9 of 10 --

10 No. 04-2064
certification pursuant to Circuit Rule 52. Brown is to pay
costs of this (second) appeal.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-15-04

-- 10 of 10 --