AK TOURNAMENT PLAY, INC. v. TOWN OF WALLKILL, 11-0731-cv (2nd Cir. 10-28-2011)

AK TOURNAMENT PLAY, INC., AL OTTO, Plaintiffs-Appellants, v. TOWN OF WALLKILL, EUGENE JACQUES, Individually and in His Capacity as Building Inspector for the Town of Wallkill, WALTER BARRETT, Individually and in His Capacity as Assistant Building Inspector for the Town of Wallkill, JOHN WARD, Individually and in His Capacity as Supervisor for the Town of Wallkill, Defendants-Appellees.

No. 11-0731-cv.United States Court of Appeals, Second Circuit.
October 28, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

PRESENT: RALPH K. WINTER, GERARD E. LYNCH, SUSAN L. CARNEY Circuit Judges.

FOR APPELLANTS: Jeffrey A. Hoerter, Law Offices of Thomas M. Gambino Associates, P.C., Poughkeepsie, NY.

FOR APPELLEES: Steven C. Stern, Sokoloff Stern LLP, Westbury, NY.

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Appeal from the United States District Court for the Southern District of New York (Preska, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-appellants AK Tournament Play, Inc., and Al Otto (“plaintiffs”) appeal from the district court’s dismissal of their complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See AK Tournament Play, Inc.v. Town of Wallkill, No. 09 Civ. 10579 (LAP), 2011 WL 197216 (S.D.N.Y. Jan. 19, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review a district court’s grant of a Rule 12(b)(6) motion to dismiss de novo. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). “In conducting this review, we draw all reasonable inferences in [p]laintiffs’ favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief. We are not, however, bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.”Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citations omitted).

On appeal, plaintiffs argue that the district court erred in refusing to afford their poker games some level of First Amendment protection. Plaintiffs’ games of “tournament style Texas Hold-Em Poker,” they contend, amount to “a form of protected expression” and protected assembly.

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At least on the record before us, we cannot agree. Even assuming arguendo that there might be some
circumstances under which a poker club’s activities could involve sufficiently expressive or political content to merit protection under the First Amendment, plaintiffs’ conclusory and vague complaint fails to set out facts from which a court could draw that conclusion here. Plaintiffs allege no more than that they engaged in social gambling. Such activities, even if not violative of state law, are subject to regulation without the heightened scrutiny applied to governmental action affecting First Amendment-protected speech or assembly. Accordingly, the district court was correct to dismiss plaintiffs’ complaint for failure to state a claim.

We have considered plaintiffs’ other arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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