The opinion of the court was delivered by: DAVID HAMILTON, District Judge
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiff John Blubaugh has sued defendant American Contract Bridge
League (ACBL) on a variety of theories arising from the ACBL's decision
to suspend him from playing in ACBL-sanctioned tournaments for a period
of 18 months. Blubaugh has made his living in recent years as a
professional bridge player. After a question was raised about the manner
in which Blubaugh shuffled and dealt cards in tournaments, the ACBL's
Ethical Oversight Committee held a hearing with witnesses, exhibits,
cross-examination and counsel. The committee issued a written decision
finding that Blubaugh had violated bridge rules. The committee suspended
him from sanctioned bridge play
for four months. Blubaugh appealed to the ACBL's Appeals and Charges
Committee, which upheld the findings but enhanced the punishment to an
eighteen month suspension.
Blubaugh filed this action on March 15, 2001, and moved for a temporary
restraining order to prevent the suspension from taking effect. After a
hearing on March 16, 2001, the court orally denied such relief. Blubaugh
then filed two amended complaints and a motion for preliminary injunction
seeking to have the suspension lifted. After a hearing on Blubaugh's
motion for a preliminary injunction, the court denied the motion.
Blubaugh v. American Contract Bridge League, 2001 WL 699656 (S.D. Ind.
June 20, 2001).
Blubaugh's third amended complaint contains no fewer than 19 counts
that can be grouped as follows.*fn1 Breach of Contract Counts I, IX, X,
XI, XII, XIII, XIV, XV, and XVI allege that the ACBL breached a contract
with Blubaugh by failing to honor its own internal rules and
regulations, specifically the Code of Disciplinary Regulations and
Guidelines for Disciplinary Proceedings. Tortious Interference: Count II
alleges that the ACBL, by suspending Blubaugh, tortiously deprived him of
his livelihood. Indiana does not recognize a cause of action for
"tortious deprivation of livelihood," so the court construes this count
tortious interference with a business relationship, which can be
actionable under Indiana law. Count III sets forth a claim of tortious
interference with contract based on the same conduct complained of in
Count II. Defamation: Counts IV and XX allege defamation, and Count V
alleges a conspiracy to defame. Blubaugh claims that various statements
regarding the disciplinary proceedings made by the ACBL or those
associated with it were defamatory.
Miscellaneous Claims: Count VI alleges that the ACBL was grossly
negligent in its handling of a surveillance videotape that was used as
evidence in the disciplinary proceedings against Blubaugh. The videotape
contained a recording of Blubaugh shuffling and dealing cards at a
national tournament. Count VII alleges a violation of the Americans with
Disabilities Act, but Blubaugh has abandoned that claim in response to
the ACBL's motion for summary judgment. Count VIII alleges a violation of
the federal Sherman Antitrust Act. Count XVII alleges a violation of the
Racketeering and Corrupt Organizations Act (RICO). Finally, Count XVIII
advances an abuse of process claim.
The court has jurisdiction based on diversity of citizenship and the
amount in controversy. Although the complaint contains three counts
arising under federal law, they are so weak as to provide only meager
support for federal jurisdiction. See, e.g., Williams v. Aztar
Indiana Gaming Corp., 351 F.3d 294,
299 (7th Cir. 2003) (finding that federal RICO claim was so frivolous as
not to support supplemental jurisdiction overstate law claims where
citizenship was not diverse).
Summary Judgment Standard
The ACBL has moved for summary judgment on each count. Blubaugh has
also moved for summary judgment on liability on his claims for breach of
contract and abuse of process. The purpose of summary judgment is to
"pierce the pleadings and to assess the proof in order to see whether
there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate
when there are no genuine issues of material fact, so that the moving
party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c).
The moving party must show there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the nonmoving
party fails to establish the existence of an element essential to his
case, one on which he would bear the burden of proof at trial, summary
judgment must be granted to the moving party." Ortiz v. John O. Butler
Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
In light of Blubaugh's briefs, which focus on myriad trivial details
and irrelevant history, it is worth emphasizing that a factual issue is
material only if resolving the factual issue might change the suit's
outcome under the governing law. Irrelevant or unnecessary facts do not
deter summary judgment, even when in dispute. Clifton v. Schafer,
969 F.2d 278, 281 (7th Cir. 1992). A factual issue
is genuine only if there is sufficient evidence for a reasonable jury to
return a verdict in favor of the non-moving party on the evidence
presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). In
considering defendants' motion, the court must consider the evidence in
the light reasonably most favorable to the opposing party, giving him the
benefit of the most favorable reasonable inferences from the evidence.
See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at
323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir.
For the reasons explained below, the court grants defendant's motion
for summary judgment in all respects. Though all of Blubaugh's claims
have specific flaws that are discussed below, the central defect running
throughout the Complaint lies in Blubaugh's erroneous and expansive view
of the court's role in overseeing the internal affairs of a voluntary
membership organization like the ACBL. At the core of this case, Blubaugh
contends the suspension imposed on him is simply unjust. He asserts his
suspension resulted both from violations of the ACBL's rules and
procedures and from personal malice on the part of some ACBL leaders with
whom he has had some bitter conflicts over the years.
Indiana courts, however, exercise only very limited judicial oversight
of voluntary membership organizations like the ACBL. Blubaugh has not
that his case fits the limited exceptions for fraud, other illegality, or
abuse of civil or property rights having their origin elsewhere. See
Indiana High School Athletic Ass'n v. Reyes, 694 N.E.2d 249, 256 (Ind.
1997). Nor has he shown any material violation of the ACBL's elaborate
rules and procedures. Although Blubaugh contends he is the victim of a
prolonged and concerted effort to harm him unjustly, he simply has not
come forward with evidence that would allow a reasonable jury to find
that such an effort was made.
The Seventh Circuit has often said that summary judgment is the "put up
or shut up" moment in a lawsuit, when a party must show what evidence he
has that would convince a trier of fact to accept his version of events.
Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir.
2003). On this record, it would be a "gratuitous cruelty" to the parties
and their witnesses, not to mention the jurors, to go through the ordeal
of a trial that could have only one outcome. Mason v. Continental
Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Keeping in mind the standard on a motion for summary judgment, the
following facts are undisputed or reflect the evidence in the light
reasonably most favorable to Blubaugh, as the party opposing the
principal motion for summary
judgment. The ACBL serves as the sanctioning body for competitive
and duplicate bridge in North America. Blubaugh has made his living since
1990 or 1991 as a professional bridge player. Bridge is a team game, and
some devoted amateurs are willing and able to pay excellent bridge
players like Blubaugh to play as their partners in bridge tournaments
that do not offer monetary prizes. Blubaugh has also established a modest
business in which he brokers such arrangements between such paying
clients and other professional players in return for a fee. Most if not
all of these tournaments are sanctioned by the ACBL.
In 2000, Blubaugh's primary client was a Mr. Villman, who paid Blubaugh
$2,250 per tournament pursuant to an oral agreement. Blubaugh was
negotiating a similar arrangement for 2001 with Gerald Mindell while the
disciplinary process was going forward. These negotiations were abandoned
when Blubaugh was suspended.
Blubaugh is a member of the ACBL and has been active in its national
leadership, including past membership on its national board of governors
and its Appeals and Charges Committee, which was the same body that
increased his suspension from four to eighteen months. Over the years, he
has been an outspoken critic of others in leadership positions with the
ACBL and the World
Bridge Federation. For example, he has criticized what he views as
excessive travel expenses for ACBL directors and their spouses. He also
was critical of the appointment in 1999 of Michael Aliotta to the
position of national recorder.
At a regional ACBL bridge tournament in Indianapolis during the summer
of 2000, the ACBL received information from James Chiszar that he
believed he had observed Blubaugh deliberately placing an ace or other
"honor card" at the bottom of a deck, shuffling the deck in such a way
as to keep the ace at the bottom of the deck throughout the shuffles,
and then putting the ace in the hand given to his partner. Chiszar, who
was an ACBL tournament director, reported his observations to several
other directors attending the Indianapolis tournament. They all agreed
to observe Blubaugh the next day. The next day, Chiszar and directors
Johnson, Van Cleve and Flader observed Blubaugh. Of the four, three
believed they observed Blubaugh manipulate the shuffle so as to place an
ace on the bottom of the deck where it would be dealt to his partner.
If one member of a bridge team knows that his partner holds a specific
card, that knowledge can provide their team with a modest but unfair
advantage in the competition.
Following the Indianapolis tournament, the ACBL arranged for video
surveillance of Blubaugh as he shuffled and dealt at the national
tournament in Anaheim, California in August 2000. Based on the videotape
and the directors' observations, the ACBL's chief tournament director
Gary Blaiss, national recorder Richard Colker, and league counsel Jeffrey
Polisner agreed that the evidence was sufficient to institute charges
against Blubaugh for cheating.
Blubaugh was formally charged on August 12, 2000, with manipulating
honor cards to the bottom of the deck and knowing into which hands he
dealt them at the Indianapolis Regional tournament on July 29-30, 2000,
and the Anaheim NABC tournament on August 10-11, 2000. The charge
specified violations of Sections 2.1, 2.2 and 2.11 of the ACBL's Code of
Disciplinary Regulations and the ACBL's Laws 6 and 16. Blubaugh was
notified of a hearing scheduled for August 16, 2000, before the ACBL's
Ethical Oversight Committee. The notice informed him of his rights under
ACBL rules to have "counsel" (who was not required to be an attorney), to
present evidence, to confront witnesses, and to challenge any committee
member for cause. He was also informed that any appellate bodies that
might review a decision by the Ethical Oversight Committee had the power,
among others, to increase any discipline imposed.
At Blubaugh's request, the hearing before the Ethical Oversight
Committee was postponed to November 17, 2000, at a tournament in
Birmingham, Alabama. Blubaugh's counsel obtained the four-month delay by
explaining that he needed time to gather evidence relating to Blubaugh's
earlier injuries and their effects.
Blubaugh suffered an injury to his right hand approximately 20 years
ago. His right ring finger was amputated just above the last knuckle,
and that finger is stiff and virtually useless. He also suffered nerve
damage to his middle finger that reduces its function. Also, over the
last several years, also, Blubaugh's vision in his right eye has
deteriorated, especially his peripheral vision. Blubaugh contends that
his hand injuries cause his shuffling of cards to be clumsy and awkward
and not very effective in mixing the cards of the deck, but that his
restricted vision keeps him from actually seeing the face of any card
when he shuffles. Blubaugh vehemently denies that he knew the positions
of any cards in the shuffled decks or that he knowingly gave his partner
any particular cards.
Before the hearing, Blubaugh's counsel attempted to obtain the
equivalent of pretrial discovery from the ACBL, including the identities
of witnesses and the substance of any expert witness testimony. The ACBL
rules make such pre-hearing disclosures optional rather than mandatory.
The ACBL provided only a
copy of the surveillance videotape before the hearing, without
explanation or expert commentary.
A committee composed of members of the Ethical Oversight Committee
convened to hear evidence on November 17, 2000. Blubaugh did not try to
have any members removed for cause. Witnesses in the hearing were not
under oath, nor was a complete record of the hearing made. The Recorder
of the ACBL presented evidence against Blubaugh, including the videotape
as narrated and explained by Norman Beck, who was presented as an expert
in cards and their manipulation. The written reports of Beck, Chiszar and
others who had observed Blubaugh's conduct during the tournaments were
also introduced into evidence. Blubaugh's counsel cross-examined the
witnesses against him. Blubaugh's counsel did not ask those witnesses any
questions about Blubaugh's hand injury or its effects. After the ACBL
presented its evidence, the committee took a prolonged recess to play
bridge, then reconvened late that same night and heard evidence from
Blubaugh and witnesses he called. Both sides indicated they were through
presenting evidence. At 4:30 a.m. on November 18th, the committee
announced its ruling against Blubaugh and the sanction of a four month
Blubaugh appealed that decision to the ACBL's Appeals and Charges
Committee. The suspension was stayed pending that appeal. After the
Ethical Oversight Committee's decision but before the decision of the
Appeals and Charges Committee, "D" Magazine, a local Dallas/Fort Worth
magazine published an article profiling Norman Beck, the expert on card
manipulation who had testified against Blubaugh at the disciplinary
hearing. In the article, Beck was quoted at length discussing the
Blubaugh case, although neither he nor the article mentioned Blubaugh by
name. The article also contained a brief description of the surveillance
videotape, which Beck apparently had shown the author.
On Blubaugh's appeal, the ACBL's Appeals and Charges Committee decided
to sustain the finding of a violation and to increase the suspension to
eighteen months, to take effect in March 2001. In conjunction with the
decision, the ACBL published a notice of Blubaugh's suspension in its
news bulletin. Blubaugh filed this action on March 15, 2001. After this
court denied a temporary restraining order, the suspension took effect as
The parties have stipulated to the admission of a copy of surveillance
videotape showing Blubaugh shuffling and dealing several hands of bridge.
When it was presented to the ACBL's Ethical Oversight Committee, witness
Norman Beck provided a narration and explanation, as well as a written
report. At the request of plaintiff, the court has watched the
videotape. Without commentary, explanation, and questioning by those
expert in the game of bridge, however, the videotape was not
enlightening. The task of this court is not to try de novo the case
against Blubaugh before the ACBL's Ethical Oversight Committee.
Both the videotape and Blubaugh's testimony show that, before Blubaugh
shuffles a deck, he habitually holds the entire deck of cards face-up in
a fan-like arrangement that allows him to see all the cards, including
the cards that will be at the very bottom of the deck before it is
shuffled. Blubaugh testified that he views the cards this way to ensure
that all the cards are facing the same way. If a card is dealt face-up,
the dealer must reshuffle the deck and start over. (Blubaugh has not
explained why he could not make that same determination by holding the
cards face-down, without seeing which cards would be at the bottom of the
deck. Also, the court is left to wonder why bridge players do not "cut" a
shuffled deck before a deal to prevent precisely the sort of problems
that arose here.)
Lest there be any misunderstanding, for purposes of deciding the ACBL's
motion for summary judgment, the court assumes that Blubaugh did not
cheat in his shuffling and dealing, even though ACBL officials believed
that he did. Nonetheless, the evidence here would not allow any
reasonable jury to find that any ACBL officials who reviewed the evidence
in the case and made a decision at any stage the initial charging
decision, the initial hearing, or the appeal subjectively
believed that Blubaugh was innocent of cheating.
Other facts are noted below as needed, keeping in mind the standard
for a ...