Opinion
DOCKET NO. A-0702-12T2
07-16-2014
EDWARD J. MIERZWA, Plaintiff-Appellant, v. WAL-MART, INC. and TICKETMASTER, LLC Defendants-Respondents.
Edward J. Mierzwa, appellant pro se. Fox Rothschild, L.L.P., attorneys for respondent Wal-Mart Stores, Inc. (N. Ari Weisbrot, on the brief). Morgan Melhuish Abrutyn, attorneys for respondent Ticketmaster, L.L.C. (Leonard C. Leicht, of counsel; Joshua Heines, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-10011-12.
Edward J. Mierzwa, appellant pro se.
Fox Rothschild, L.L.P., attorneys for respondent Wal-Mart Stores, Inc. (N. Ari Weisbrot, on the brief).
Morgan Melhuish Abrutyn, attorneys for respondent Ticketmaster, L.L.C. (Leonard C. Leicht, of counsel; Joshua Heines, on the brief). PER CURIAM
Plaintiff Edward J. Mierzwa appeals from the Law Division Special Civil Part orders dismissing his complaint against defendant Ticketmaster, L.L.C. on July 13, 2012; dismissing his complaint against defendant Wal-Mart Stores, Inc. on August 3, 2012; and denying his motion to vacate said dismissals and compel discovery on September 28, 2012. We affirm.
Plaintiff incorrectly captioned Wal-Mart and subsequently moved to amend the caption, which Wal-Mart opposed on the basis that the case should be dismissed without further litigation.
According to plaintiff's complaint, he went to a North Brunswick Wal-Mart on February 25, 2012, to utilize its Ticketmaster self-service ticketing kiosk to purchase Beach Boys tickets advertised to go on sale to the general public at 10:00 a.m. that morning. Plaintiff attempted at exactly 10:00 a.m. to purchase "reserved seats" for $153 per ticket, but "the opportunity was squandered" when a Wal-Mart associate was not immediately available to complete the transaction. Plaintiff was then able to complete a purchase of "outer perimeter" tickets for $91.50 at 10:04 a.m. He alleged that, as a direct result of defendants' actions and inactions, he "was unable to obtain the choicest reserved seats," which constituted violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20.
Ticketmaster swiftly moved to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted pursuant to Rule 4:6-2(e), which plaintiff opposed. On July 13, 2012, the trial judge granted Ticketmaster's motion, calling plaintiff's complaint "the most frivolous complaint I have ever seen."
Meanwhile, Wal-Mart also moved to dismiss plaintiff's complaint under Rule 4:6-2(e), which plaintiff similarly opposed. On August 3, 2012, the trial judge granted Wal-Mart's motion calling the complaint "patently frivolous." The judge determined that "this complaint does not state a claim," as "[t]here was no contract to provide him with specific seats, it was to provide him with an ability to enter his order and then give him the best seats available at the time his order was entered[.]"
Plaintiff subsequently sought to vacate the orders of dismissal and compel discovery, which both defendants opposed. On September 28, 2012, in denying plaintiff's motion, the judge again found that plaintiff's statement of facts did not state a cause of action, but was entirely "frivolous." This appeal followed.
On appeal, plaintiff argues that the trial judge erred in dismissing his complaint because he properly alleged violations of the CFA. Plaintiff also contends that the trial court engaged in unconscionable practices. We disagree, and we find plaintiff's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief discussion.
Taking all plaintiff's facts as true, granting him all reasonable inferences, and searching the complaint for a cause of action, as we are required to do in a motion to dismiss, Cornett v. Johnson & Johnson, 414 N.J. Super. 365, 384-85 (App. Div. 2010), aff'd as modified, 211 N.J. 362 (2012); Union Ink Co. v. AT&T Corp., 352 N.J. Super. 617, 644 (App. Div.), certif. denied, 174 N.J. 547 (2002), we find in the complaint no claim upon which relief can be granted. In order to establish a claim under the CFA, the party alleging fraud must prove three elements: "1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009). Plaintiff's complaint is patently deficient of facts establishing any of the three elements.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION