A federal appeals court partially reinstated a suit against the Borgata Hotel Casino & Spa in Atlantic City by a banned patron who the casino claims was misusing slot machine payout vouchers—and who is representing himself.

While the U.S. Court of Appeals for the Third Circuit ruled that plaintiff Nat Vaughn's defamation claim and claims against Borgata owner, MGM Resorts International, were correctly dismissed, his public accommodation claims against Borgata were reinstated and remanded.

Vaughn, a resident of New York City, had been a regular at the slot machines at Borgata for more than a decade, until A.C.'s most profitable casino—which grossed nearly $88 million last month alone, according to the New Jersey Division of Gaming Enforcement—decided to ban him from its premises in October 2016.

In a state court filing, Borgata said it had taken issue with Vaughn's use of its slot machines to "consolidate casino payment gaming vouchers for conversion to U.S. currency," the Third Circuit said in its decision.

The casino claims Vaughn's payout methods triggered Borgata's obligations to report suspicious activity under the Bank Secrecy Act of 1970.

"Putting aside the perhaps-inadvertent disclosure that Vaughn's conduct may have resulted in the creation of a 'Suspicious Activity Report' under the Bank Secrecy Act, the real problem for Borgata on appeal is that virtually none of that factual exposition can be found in Vaughn's amended complaint or in the exhibits thereto or in any judicially noticeable source," said the court in its per curiam opinion Wednesday.

"More to the point: If Borgata were interested in presenting a narrative counter to that laid out in Vaughn's pleading, it should have filed a motion for summary judgment and followed the District Court's specific procedures for doing so," the panel added.

"In sum, we are reviewing a dismissal under Rule 12(b)(6); that dismissal was premature as to the New Jersey-law public accommodation claim in light of Vaughn's allegations; and, based on that isolated error by the District Court, we will vacate its judgment in part," it said.

Circuit Judges Michael Chagares, Stephanos Bibas and Morton Greenberg were on the panel.

Jeremy Klausner, a solo practitioner in West Orange, represented the defendants. Klausner could not be reached for comment.

Vaughn, who is pro se in the case, said the ruling made his day.

"It's been a very difficult time," said Vaughn, a 75-year-old retiree, in a phone call from his New York apartment on Wednesday. "Absolutely, this was my intention, and why I filed the appeal in the Third Circuit to have it remanded back to the district court with Judge Noel Hillman. The Borgata excluded me because their thoughts are I am involved in illegal gambling activities or money laundering, and that is not true. Their lawyers are misinformed. I am an experienced slot machine player. I have been playing slot machine devices for over 30 years."

According to the decision, in October 2016, Vaughn received a letter from Borgata stating that, "effective immediately," it "no longer desires to accept your business as a customer at our property."

The letter prompted Vaughn to file suit in New York state court. At that time, a lawyer for Borgata allegedly told Vaughn over the phone "that his client [the casino] 'did not like the way the plaintiff play[ed] their slot machine devices [sic],'" according to the decision. Borgata's lawyer then elaborated in a court filing: "The reason plaintiff was excluded is because he was observed using slot machines to convert cash and payment vouchers into larger payment vouchers without actually playing the slot machines."

The New York state court action ultimately was dismissed for lack of personal jurisdiction, the panel noted.

He then filed suit in New Jersey federal court.

Vaughn has contended that it is not illegal to use slot machines in the way he used them, and that Borgata presumed that he had not played at least one slot machine while handling the vouchers.

Vaughn claimed that the Borgata lawyer's state court filing suggested criminality on Vaughn's part, which he said was defamatory. He also challenged his banning. He sought readmittance, money damages and restoration of certain casino privileges.

Borgata and MGM moved under Rule 12(b)(6) to dismiss Vaughn's amended complaint for failure to state a claim.

U.S. District Judge Noel Hillman granted the motion to dismiss, holding that MGM wasn't a proper party to the suit, and that a defamation claim failed under both New Jersey and New York law because Vaughn "admits that the alleged defamatory statement is not false," the appeals panel quoted him as ruling. Hillman also said the Borgata lawyer's statement about the reason for Vaughn's banning "is not actionable because it is protected by the litigation privilege." He also agreed that casinos have a common-law right to exclude patrons who "disrupt regular and essential operations."

On appeal, the Third Circuit panel agreed with much of Hillman's holding. He "properly concluded both that MGM is not a proper party to this action and that Vaughn failed to state a viable defamation claim," the Third Circuit judges wrote. "We thus affirm the district court's judgment to that extent.

"But only to that extent," the court said, "as the district court should have permitted the case to proceed on Vaughn's apparent claim that Borgata breached its duty of public accommodation under New Jersey law."

The court said, under New Jersey law, when casinos or other property owners open their premises to the general public, they have no right to exclude people "unreasonably," citing the New Jersey Supreme Court's 1982 decision in Uston v. Resorts International Hotel. 

"The word 'unreasonably' in Uston is key," the panel said. "Property owners may legitimately exclude patrons for eminently reasonable reasons."

The judges said Vaughn "did not invoke this aspect of New Jersey law by its proper name," but Borgata, MGM and the court "appear to have understood him to be advancing a public accommodation claim," the panel said, and it was "fair to do so given the allegations in the amended complaint and the requirement that pro se pleadings are to be liberally and favorably construed for the benefit of [the] pleader."

The court said there was no disputing that New Jersey law applied to Vaughn's claim and that a plaintiff may recover damages for a breach of the duty of public accommodation.

The judges also noted that the decision to exclude a patron as "reasonable" must be determined a case-by-case basis.

"Vaughn adequately pleaded a claim that Borgata breached its duty of public accommodation when it banned Vaughn from the premises," the panel said.

"The thrust of Vaughn's allegations is that when he played the slot machines at Borgata's casino, he also used the machines to consolidate Borgata-issued payment vouchers with other vouchers and/or cash," wrote the court. "A tenable reading of the amended complaint is that Vaughn employed his self-described slot machine 'method' over the course of many years in order to create larger payment vouchers—not to enrich himself in any way, but to use or redeem those vouchers with greater efficiency. That such conduct should be deemed uncontroversial is plausible.

"There is no factual allegation or pleading exhibit (or law, for that matter) indicating that such conduct is illegal or contrary to Borgata policy, or that Borgata ever warned Vaughn that his actions could lead to permanent expulsion," said the judges.

"It is also plausible that, despite the seemingly uncontroversial nature of Vaughn's conduct, Borgata excluded him because, as alleged, it simply 'did not like the way' he played," the court said.

"Accepting as true Vaughn's allegations to that effect, a factfinder could conclude that Borgata's actions here were arbitrary and unreasonable and, as such, a plausible basis for liability under New Jersey law," the panel added.

The court noted that it wasn't ruling on the merits of the public accommodation claim, and "our opinion does not preclude Borgata from raising any affirmative defenses that may be available to it."