James Gengo v. Jets Stadium Development, LLC ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3103
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JAMES T. GENGO,
Individually and on behalf of all others similarly situated,
Appellant
v.
JETS STADIUM DEVELOPMENT LLC;
NEW YORK JETS LLC
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On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2:18-cv-08012)
District Judge: Hon. Stanley R. Chesler
Submitted under Third Circuit L.A.R. 34.1(a)
April 2, 2019
Before: CHAGARES, HARDIMAN, and SILER, JR,* Circuit Judges
(Opinion filed: August 29, 2019)
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OPINION+
____________
*
The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Court of
Appeals for the Sixth Circuit, sitting by designation.
+
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SILER, Circuit Judge.
James T. Gengo appeals the district court’s order granting a motion to dismiss
filed by Jets Stadium Development LLC and New York Jets LLC. The order dismissed
the remaining two counts of Gengo’s class action complaint. We will AFFIRM the
order of the district court.
I.
We write for the parties and relate only the necessary facts. At issue in this case is
a personal seat license (“PSL”) agreement between Gengo and defendants. The
agreement both allows and obligates Gengo to buy season tickets to football games
played by the New York Jets in MetLife Stadium. Gengo paid a fee for the agreement
because, at the time, it was the only way to purchase season tickets in Section 245a of the
Stadium. Defendants now sell season tickets in the Section to purchasers who have not
entered into a seat licensing agreement (i.e., have not paid the fee). Gengo argues this
decision by defendants has rendered his agreement “valueless,” and constitutes a breach
of the covenant of good faith and fair dealing implied in the agreement and is a violation
of the New Jersey Consumer Fraud Act. The district court found that the complaint filed
by Gengo did not state a plausible ground for relief under either theory and dismissed the
action. See Gengo v. Jets Stadium Dev., LLC, 2018 WL 4144686 (D.N.J. Aug. 30, 2018).
II.
This court reviews de novo a district court’s grant of a motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Foglia v. Renal
Ventures Management, LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014).
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III.
Gengo’s claim under the implied covenant of good faith and fair dealing fails
because he has received the fruits of his contract. See Brunswick Hills Racquet Club, Inc.
v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387, 396 (N.J. 2005) (Gengo “must provide
evidence sufficient to support a conclusion that the party alleged to have acted in bad
faith has engaged in some conduct that denied the benefit of the bargain originally
intended by the parties”) (quoting 23 Williston on Contracts § 63:22 (4th ed. 1993 &
Nov. 2018 update)). By signing the agreement, Gengo represented that he “acquir[ed]
this PSL solely for the right to purchase tickets to Jets Home Games played in the
Stadium.” The agreement “relate[d] to certain seats in the Stadium,” and gave Gengo
“the right and the obligation to purchase admission tickets for the Seats . . . .” Nothing in
the complaint suggests that Gengo has lost the exclusive right to purchase season tickets
for these seats, much less that it was defendants’ actions that denied him that right. That
defendants might now sell adjacent seats to members of the general public does not
implicate Gengo’s rights and certainly does not strip him of the benefit for which he
bargained.
In his briefing, Gengo references the “now valueless PSLs” as “unsellable”
because defendants are currently giving away for free what cost him $8,000. This
argument is problematic for two reasons. First, it is simply incorrect: there is no
allegation that the seats for which Gengo contracted are available to the general public.
Second, this argument at most smacks of a bad deal, not bad faith. As part of the
contract, Gengo represented that he was not acquiring the license as an investment and
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had no expectation of profit; he was acquiring it without a view to resell or distribute it;
and he acknowledged that defendants did “not represent[] and [did] not guarantee that
there is or ever will be a market for the resale of this PSL.” Instead, Gengo agreed that
he was acquiring the license “solely for the right to purchase tickets” for his selected
seats.
Gengo’s claim under the New Jersey Consumer Fraud Act fails for similar
reasons. He needed to plead an unlawful practice and, regardless of the type of unlawful
practice alleged, “capacity to mislead is the prime ingredient[.]” Cox v. Sears Roebuck &
Co., 647 A.2d 454, 462 (N.J. 1994). Gengo specifically disclaims that a
misrepresentation or omission regarding exclusivity or ticket policies forms the basis of
his NJFCA claim. But simply changing the terms on which defendants sell other seats in
the stadium is not misleading: the plain language of the agreement stated that Gengo
entered it solely for the right to purchase season tickets for his selected seats and that the
agreement was limited to this purpose. The agreement, therefore, belies that a licensee
could have been misled into thinking it dictated how defendants could sell all other seats
in his section. See Fenwick v. Kay Am. Jeep, Inc., 371 A.2d 13, 16 (N.J. 1977) (“The
capacity to mislead is the prime ingredient of deception or an unconscionable commercial
practice”).
Further, Gengo has not shown ascertainable loss as required by the NJCFA. It is
true that ascertainable loss “includes more than a monetary loss and may occur when a
consumer receives less than what was promised.” Elias v. Ungar’s Food Products, Inc.,
252 F.R.D. 233, 249 (D.N.J. 2008) (internal quotations and citations omitted). But here,
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Gengo has made no allegation that he is not receiving what his agreement explicitly states
is its sole benefit: the ability to buy season tickets for his seats. By the plain language of
the agreement, he has received, and continues to receive, what was promised.
We will AFFIRM.
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