Goza v. Multi-Purpose Civic Center Facilities Board For Pulaski County, Arkansas et al
ORDER adopting 33 Report and Recommendations; denying 10 Motion to Dismiss; denying 12 Motion to Dismiss. Signed by Honorable Susan O. Hickey on August 27, 2013. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
KRISTIN BUNN GOZA, Individually
and on behalf of a Class of Similarly
CIVIL NO. 6:12-cv-6125
MULTI-PURPOSE CIVIC CENTER
FACILITIES BOARD FOR PULASKI
COUNTY, ARKANSAS, d/b/a VERIZON
ARENA, LIVE NATION ENTERTAINMENT, INC.,
and TICKETMASTER, L.L.C.
Before the Court is the Report and Recommendation filed July 25, 2013, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
(ECF No. 33). Judge Bryant recommends that Defendants’ motions to dismiss (ECF No. 10 &
12) be denied. After reviewing the record de novo, the Court adopts Judge Bryant’s Report and
Recommendation as its own.
This case involves alleged violations of the Arkansas Deceptive Trade Practices Act
(“ADTPA”) arising from a contract between Defendant Multi-Purpose Civic Center Facilities
Board for Pulaski County, Arkansas, d/b/a Verizon Arena (“Verizon Arena”) and Defendant
Plaintiff Kristin Bunn Goza filed a class action
complaint against Defendants contending that Defendants entered into an agreement to charge
certain fees in addition to the “face value” of the tickets sold by Ticketmaster for events held at
Verizon Arena. (ECF No. 3). Plaintiff alleges that these fees violate Arkansas’s anti-scalping
statute, Ark. Code Ann. § 5-63-201, and thus, constitute violations of the ADTPA, Ark. Code
Ann. § 4-88-101 et seq. Plaintiff also pursues claims for unjust enrichment and conspiracy.
(ECF No. 3).
Defendants filed separate Motions to Dismiss. (ECF No. 10 & 12). After Judge Bryant
filed his Report and Recommendation, Defendants filed separate objections to the Report and
Recommendation. (ECF No. 34 & 35).
Ticketmaster objects that Judge Bryant did not consider two documents supplied by
Ticketmaster: (1) a copy of the contract between Verizon Arena and Ticketmaster; and (2) a
copy of a Pulaski County Ordinance. Specifically, Ticketmaster argues that the documents
should be considered in its motion to dismiss because Plaintiff referenced the documents in her
complaint. Judge Bryant declined to consider the documents as “matters outside the pleadings.”
(ECF No. 33)
Judge Bryant properly declined to consider the documents. A motion to dismiss will
“succeed or fail based upon the allegations contained in the face of the complaint.” Gibb v.
Scott, 958 F.2d 814, 816 (8th Cir. 1992). Generally, on a motion dismiss, “matters outside the
pleadings” may not be considered. Id. “Matters outside the pleadings include ‘any written or
oral evidence in support of or opposition to the pleading that provides some substantiation for
and does not merely reiterate what is said in the pleadings.’” Id. (quoting Wright & Miller,
Federal Practice and Procedure § 1366) (3d ed. 2013) (footnotes omitted) (reversing a district
court’s order of dismissal because the district court improperly relied upon information in the
contract supplied by the defendant despite the fact that the plaintiff referenced the existence of
the contract in his complaint). In this case, the documents Ticketmaster relies on in its motion to
dismiss substantiate its defenses against Plaintiff and do not merely reiterate what Plaintiff
alleged in her pleadings. Thus, Judge Bryant properly refused to consider the documents.
Verizon Arena makes two objections. It first objects to Judge Bryant’s report because it
did not determine whether the claims against Verizon Arena are barred in whole or in part by
sovereign immunity. The Arkansas General Assembly has declared that all counties and any of
their boards, commissions, agencies, authorities, or other governing bodies “shall be immune
from liability and from suit for damages except to the extent that they may be covered by
liability insurance.” Ark. Code Ann. § 21-9-301. In other words, unless a governing body or
agency has liability insurance, it cannot be sued.
Verizon Arena argues that it has immunity as a governing body pursuant to the Pulaski
County Ordinance and further attempts to prove its immunity by supplying an affidavit from its
general manager reporting that it does not have liability insurance to cover the claims. (ECF No.
12-1). This argument requires the court to consider the ordinance and affidavit. Again, “matters
outside the pleadings” generally may not be considered on a motion to dismiss. Gibb, 958 F.2d
at 816. Here, the Court finds that Judge Bryant did not error in declining to consider the
ordinance and the affidavit. 1
Verizon Arena also objects to the report because it did not address whether the ADTPA
applies to governmental entities such as Verizon Arena. Specifically, Verizon Arena argues that
the ADTPA does not apply to Verizon Arena because it is not a “person” capable of violating the
statute. (ECF No. 35). The statute defines a person as “an individual, organization, group,
association, partnership, corporation, or any combination of them.” Ark. Code Ann. § 4-88-102.
Verizon Arena’s objection requests that the Court order limited discovery to be conducted on the issue
of sovereign immunity. The Court declines to do so at this time. The parties are free to renew this
request in a separately filed motion.
Verizon Arena concludes that because the statute does not include a governmental entity in its
definition of a “person,” the ADPTA does not apply to it. To prove its status as a governmental
entity, Verizon Arena relies on the Pulaski County Ordinance. Again, this argument requires the
court to consider the ordinance. As stated above, Judge Bryant properly declined to consider the
ordinance as “matters outside the pleadings.”
The Court therefore overrules Defendants’ objections and adopts Judge Bryant’s Report
and Recommendation in full. (ECF No. 33). For the reasons stated herein, as well as those
contained in the Report and Recommendation, Defendants’ Motions to Dismiss (ECF No. 10 &
12) are DENIED.
IT IS SO ORDERED, this 27 day of August, 2013.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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