JOHN BROOKINGS, JR. and RICHARD SPENCE, Plaintiffs,
VERNON KIRK, Director of the Delaware Lottery, et. al., Defendants. VICTOR RODRIGUEZ, Plaintiff,
VERNON KIRK, Director of the Delaware Lotter, et. al., Defendants.
Submitted: April 4, 2018 and May 9, 2018
Defendants' Motion for Summary Judgment GRANTED
Defendants' Motion in Limine MOOT
Plaintiffs' Motion in Limine MOOT
William L. O'Day, Jr., Esq., Woloshin, Lynch &
Associates, P.A., Attorney for Plaintiffs.
M. Donoghue, DAG, Department of Justice, Attorney for
Honorable Andrea L. Rocanelli, Judge.
consolidated action, Plaintiffs John Brookings, Jr., Richard
Spence, and Victor Rodriguez ("Plaintiffs") assert
that they collectively own seven Keno Lottery tickets that
are each worth $1, 000, 000.00. Plaintiffs filed suit against
Vernon Kirk, as Director of the Delaware Lottery, the
Delaware Lottery, and the State of Delaware (collectively,
"Defendants"), alleging that Defendants refused to
honor these alleged million-dollar Keno tickets. In response,
Defendants argue that the Plaintiffs' Keno tickets are
invalid because an anomaly occurred with the Keno Computer on
December 17, 2015 that caused the same twenty numbers to win
for five consecutive Keno drawings, which took place at 11:24
a.m., 11:28 a.m., 11:32 a.m., 11:36 a.m., and 11:40 a.m.
now move for summary judgment, arguing that Plaintiffs have
no legally enforceable claims because the Plaintiffs'
Keno tickets resulted from illegal lottery games.
Specifically, Defendants argue that the Anomalous Drawings
did not have the legally required element of chance, which
renders them invalid. Defendants also argue that Plaintiffs
cannot recover under a contractual theory. In addition, the
parties have each filed a motion in limine seeking
to exclude certain evidence at trial. For the reasons that
follow, the Court grants Defendant's motion for summary
State of Delaware created the Delaware Lottery pursuant to
its constitutional authority to offer certain forms of
legalized gambling to the public.The Delaware Lottery offers
the game Keno, which the State asserts is a bingo-style
lottery game. To play Keno, a player chooses up to ten
numbers from 1 to 80, places a wager, chooses how many
consecutive games to play, and decides whether to use a Keno
bonus, which can multiply the amount won in each game.
According to the State, a computer ("Keno
Computer") then chooses twenty winning numbers every
four minutes. The maximum amount a player can win during a
game of Keno is $1, 000, 000.00 if the player correctly picks
ten numbers out of the winning twenty, and if the player
chooses to play with a Keno bonus.
winning numbers for each Keno drawing are displayed on Keno
computer monitors located in licensed lottery retailer
locations. These computer monitors also display so-called
"hot numbers," which Defendants assert are numbers
that are currently being more frequently selected than
others. The Delaware Lottery uses the "hot numbers"
as a marketing tool to encourage individuals to play Keno
using those numbers.
December 17, 2015, at 11:20 a.m., the Delaware Lottery held a
Keno drawing with the following winning numbers: 17, 22, 35,
59, 30, 08, 02, 26, 31, 43, 65, 73, 24, 07, 64, 11, 09, 66,
71, 56. The next five drawings were the Anomalous Drawings,
in which the same twenty numbers repeated every time.
According to the State, after the 11:40 a.m. Anomalous
Drawing, trouble-shooting was initiated and the Keno Computer
was restarted. Functionality resumed after the restart, and
the Keno Computer began generating random numbers again with
the next draw at approximately 11:46 a.m.
Rodriquez was at Pockets Discount Liquors around the time of
the Anomalous Drawings. According to Plaintiff Rodriguez, he
played an initial game of Keno by randomly selecting his own
numbers, but did not win. However, Plaintiff Rodriguez claims
that another patron in the store then suggested that