508 F. Supp. 2d 228 (S.D.N.Y. 2007)
In September 2006, plaintiff Rosalee Margolis Druyan purchased two tickets to a Rolling Stones concert scheduled for October 27, 2006, at the Borgata Hotel and Casino in Atlantic City through the Ticketmaster website for approximately $575.1
She declined an offered travel package but made hotel reservations for two nights at $347 per night and planned to travel to Atlantic City on the day of the concert.2 The defendants named in the action were Mick Jagger, Ticketmaster L.L.C., and Live Nation Worldwide, Inc., with the complaint brought on behalf of a putative class of 12,000 ticketholders.3
On October 27, 2006, the plaintiff checked her email at approximately 2:30 p.m. before departing and received no notice of any change to the concert schedule.4 At around 4 p.m. that day, after many ticketholders had already begun traveling or arrived in Atlantic City, defendants notified the public that Mick Jagger had a sore throat and the concert was rescheduled for November 17, 2006.5
Plaintiff alleges that defendants knew of the cancellation earlier, including that the Borgata knew by noon, and that they delayed notice to encourage spending on hotels, meals, and entertainment in Atlantic City due to slow business from inclement weather.6 Plaintiff further alleges that Jagger and the Rolling Stones had scheduled additional concerts at the Beacon Theatre in New York City on October 29 and 31, 2006, including a high-profile political fundraiser, and chose to rest rather than perform in Atlantic City.7
The Ticketmaster website Terms of Use, which plaintiff accessed when purchasing tickets, stated that events are occasionally cancelled or postponed and that Ticketmaster would not be liable for travel or other expenses.8 The physical tickets issued also provided that the date and time were subject to change and that management was not required to issue a refund if the event was cancelled or rescheduled.9
The action was commenced in the United States District Court for the Southern District of New York, with defendants moving to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.10 Plaintiff submitted a declaration with additional documents in opposition to the motion to dismiss, including an email alert from Ticketmaster dated October 24, 2007.11
Whether the plaintiff stated a claim for breach of contract against Mick Jagger, Live Nation, or Ticketmaster?12
Under New York law a plaintiff must allege the existence of a valid contract, performance by the plaintiff, breach by the defendant, and resulting damages to state a claim for breach of contract.13 When multiple defendants are named, the complaint must contain factual allegations showing a contractual relationship with each individual defendant rather than lumping them together.14
No. The established facts show that plaintiff Rosalee Margolis Druyan purchased two tickets through the Ticketmaster website in September 2006 for approximately $575. The named defendants were Mick Jagger, Ticketmaster L.L.C., and Live Nation Worldwide, Inc. Plaintiff alleges no facts indicating any direct contractual relationship with Mick Jagger or Live Nation Worldwide, Inc. With respect to Ticketmaster the Terms of Use and ticket language expressly permitted rescheduling without liability for consequential expenses.15 Plaintiff was offered but declined a refund or exchange for the November 17 date.16 These contractual provisions preclude any breach claim because the defendants performed exactly what the contract allowed.17
The plaintiff therefore failed to plead the essential element of a contractual duty owed by any defendant that was breached.18
The breach of contract count fails as to every defendant because no contractual obligation to provide earlier notice existed under the documents plaintiff relied upon when purchasing the tickets.19
Whether Ticketmaster's Terms of Use and the concert ticket constituted a binding contract that limited plaintiff's remedies?20
A website user who clicks through to purchase tickets after being presented with conspicuous Terms of Use is bound by those terms.21 Ticket language stating that dates are subject to change and that management need not issue refunds for cancelled or rescheduled events creates an enforceable limitation on remedies.22
Yes. When plaintiff purchased her tickets she accessed the Ticketmaster website and clicked the purchase button immediately below the statement agreeing to the Terms of Use.23 She received physical tickets containing the explicit warnings that the date and time were subject to change and that management was not required to issue a refund if the event was cancelled or rescheduled.24 These documents were integral to the transaction and given her five years of using the site the limitation clauses bound her and restricted recovery to a refund or exchange both of which were offered.25
Ticketmaster's Terms of Use and the concert ticket formed a binding contract that limited plaintiff's remedies to a refund or exchange and barred claims for travel, hotel, or entertainment expenses.26
Whether the fraud claim against Ticketmaster was duplicative of the breach of contract claim?27
A fraud claim that rests on the same facts as a breach of contract claim is duplicative and must be dismissed unless the plaintiff identifies a legal duty separate from the contract, a misrepresentation collateral to the contract, or special damages unrecoverable in contract.28
Yes. The fraud allegations against Ticketmaster arise from the same conduct alleged in the contract claim.29 That conduct was continued advertising of the October 27 concert and delayed notice of rescheduling.30 The established facts demonstrate that Ticketmaster owed no extracontractual duty.31 The alleged misrepresentations were not collateral to the Terms of Use and ticket.32 The only damages sought were precisely the consequential expenses the contract expressly excluded.33 No exception applies.34
The fraud claim against Ticketmaster is duplicative of the contract claim and cannot proceed independently.35
Whether the plaintiff adequately pleaded justifiable reliance for her fraud claim against the remaining defendants?36
No. Plaintiff received tickets and viewed the Ticketmaster site containing explicit warnings that the concert date and time were subject to change and that Ticketmaster would not be liable for travel or other expenses.39 The established facts show she checked her email at 2:30 p.m. on October 27 and departed without notice.40 The contractual language made any expectation of earlier notice unreasonable.41 Reliance on the remaining defendants' silence was therefore not justifiable as a matter of law.42
Plaintiff failed to plead justifiable reliance, defeating the fraud claim against Mick Jagger and Live Nation.43
Whether the fraud allegations satisfied the particularity requirements of Federal Rule of Civil Procedure 9(b)?44
No. The complaint alleges on information and belief that defendants knew of the cancellation before 4 p.m. and delayed notice to spur Atlantic City spending.47 Yet it provides no factual basis for those beliefs beyond the existence of Jagger's sore throat and later Beacon Theatre dates.48 The established facts show plaintiff lumps all defendants together without specifying what each did.49 Plaintiff fails to allege any representation by the Borgata or Live Nation.50
Plaintiff offers only speculation about profit motives.51 These deficiencies violate Rule 9(b).52
The fraud allegations lack the particularity demanded by Rule 9(b) and must be dismissed.53
Whether the plaintiff stated a claim for prima facie tort?54
No. Plaintiff concedes the gravamen of her complaint is fraud.57 The court has rejected that claim for lack of extracontractual duty, justifiable reliance, and particularity.58 The established facts show the expenses incurred were ordinary travel and lodging costs that plaintiff expected to incur.59 The contract expressly excluded those costs.60 No special damages caused by an otherwise lawful act without justification are pleaded.61
The prima facie tort claim fails because it merely repackages the already-dismissed fraud and contract allegations without satisfying the required elements.62
Whether any defendant owed the plaintiff a duty supporting a negligence claim?63
No. Ticketmaster's only relationship with plaintiff arose from the ticket purchase governed by the Terms of Use that disclaimed liability for expenses.66 The established facts contain no allegation that plaintiff conducted business with Mick Jagger or Live Nation.67 No common-law duty to provide earlier notice of a performer's illness is recognized.68 The remaining defendants made no representations on which any duty could be based.69
No defendant owed plaintiff a duty that would support a negligence claim.70
Whether the plaintiff stated a claim for violation of truth in advertising statutes?71
No. The Ticketmaster Terms of Use and ticket language expressly stated that dates and times were subject to change and that Ticketmaster would not be liable for resulting expenses.74 The established facts show all announcements originated from Ticketmaster.75 Plaintiff has pleaded no facts imputing those statements to the other defendants.76 A reasonable consumer could not have been misled into believing the concert was guaranteed to occur as scheduled.77
The truth in advertising claim fails because the contractual disclosures rendered any alleged deception implausible.78