Aretakis v. Caesars Entertainment et al

Filing 47

OPINION AND ORDER re: 41 MOTION to Dismiss Plaintiff's Amended Complaint. filed by Caesars Entertainment Operating Company, Caesars Palace, Rio Secco Golf Club, Caesars Entertainment. Given the foregoing, the Amended Com plaint is DISMISSED WITH PREJUDICE as to Defendants Caesars Entertainment Corporation, incorrectly named as "Caesars Entertainment"; Caesars Entertainment Operating Company; Desert Palace, Inc., doing business as Caesars Palace; and Rio Development Company, incorrectly named as Rio Secco Golf Club. In addition, Plaintiff is ORDERED TO SHOW CAUSE, on or before Friday, March 9, 2018, why the Amended Complaint should not be dismissed without prejudice as to Defendants Butch Harmon, Millionaire Maker, and Nike Golf for failure to serve within the time frame specified by Federal Rule of Civil Procedure 4(m). (Signed by Judge Katherine Polk Failla on 2/23/2018) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------X
:
JOHN ARETAKIS,
:
:
:
Plaintiff,
:
v.
:
:
CAESARS ENTERTAINMENT, RIO SECCO :
GOLF CLUB, CAESARS ENTERTAINMENT :
OPERATING COMPANY, CAESARS PALACE, :
BUTCH HARMON, MILLIONAIRE MAKER, :
and NIKE GOLF,
:
:
Defendants. :
:
------------------------------------------------------ X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 23, 2018
______________

16 Civ. 8751 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
This dispute stems from a Las Vegas golf contest that allegedly offered
the opportunity to win a $1 million prize by making a hole-in-one (the
“Hole-in-One Contest” or the “Contest”). Plaintiff John Aretakis paid for
himself and three of his colleagues to compete in the Contest; as fate would
have it, one of his colleagues made a hole-in-one. As fate would also have it,
the rules of the Contest had fine print: a participant who made a hole-in-one
won only the right to return to Las Vegas to compete in a second hole-in-one
competition before winning the $1 million prize. Plaintiff balked and, after his
golf-adept colleague sought to assign any rights he had in the prize to Plaintiff,
Plaintiff filed the instant suit against a number of entities he alleged to be
complicit in a hole-in-one fraud.

The named defendants include Caesars Entertainment Corporation,
incorrectly named as “Caesars Entertainment”; Caesars Entertainment
Operating Company; Desert Palace, Inc., doing business as Caesars Palace
(collectively, the “Caesars Defendants”); and Rio Development Company,
incorrectly named as Rio Secco Golf Club (with the Caesars Defendants,
“Defendants”). The Amended Complaint also lists three defendants that
Plaintiff identified as appearing on promotional materials for the Hole-in-One
Contest: Butch Harmon, Millionaire Maker, and Nike Golf. Before the Court is
Defendants’ motion to dismiss the Amended Complaint. For the reasons that
follow, the Court grants the motion.
BACKGROUND 1
A.

Factual Background
1.

The Hole-in-One Contest

Despite Plaintiff’s sprawling, 370-paragraph Amended Complaint, the
facts he alleges are fairly straightforward: On January 31, 2016, while on a
business trip, Plaintiff and three acquaintances, including Adam Neary, played

1

The Court draws the facts in this section from the Amended Complaint (“Am. Compl.”
(Dkt. #38)), along with certain documents submitted by Defendants in connection with
the instant motion, as discussed more fully below. For convenience, the Court refers to
Defendants’ Memorandum of Law in Support of the Motion to Dismiss the Amended
Complaint as “Def. Br.” (Dkt. #44), and Plaintiff’s Memorandum of Law in Opposition to
the Motion to Dismiss as “Pl. Opp.” (Dkt. #45-1). The Court also refers to the
Declaration of William A. Lesser in Support of the Motion to Dismiss the Amended
Complaint (“Lesser Decl.” (Dkt. #42)), and its attached exhibits, namely, a purported
assignment agreement between Adam Neary and Plaintiff (“Neary Assignment” (Dkt.
#42-1)), an article entitled, “Million Dollar Hole In One at Las Vegas Golf Course Rio
Secco Going Big” (the “Article” (Dkt. #42-2)), and a printout of the rules applicable to
the Hole-in-One Contest (“Contest Rules” (Dkt. #42-3)). Finally, the Court refers to the
Affidavits of Plaintiff and Adam Neary in Opposition to the Motion to Dismiss,
respectively, as “Pl. Aff.” (Dkt. #45) and “Neary Aff.” (Dkt. #45-2).

2

a round of golf at the Rio Secco Golf Club in Las Vegas, Nevada. (Am. Compl.
¶¶ 5-6, 59). At the seventh hole, “a young woman working for Rio Secco”
informed the group that for a $20 fee, a golfer could enter the “million-dollar
hole-in-one challenge,” in which a golfer who hits a ball from the tee to the cup
in one swing “would get … a million-dollar prize.” (Id. at ¶¶ 60, 66). Plaintiff
also noticed an eight- to ten-foot sign near the seventh hole reading, “Welcome
to the Rio Secco [M]illion-[D]ollar [H]ole.” (Id. at ¶ 66). Thereafter, “Plaintiff
paid the $20 entry fee for all [four] golfers.” (Id. at ¶ 69; see also id. at ¶ 67
(alleging that Plaintiff “paid the young woman $80 … for each of the entire
foursome’s entry in the hole-in-one challenge”)).
After Plaintiff paid the entry fees but before Neary attempted to swing,
Neary offered to reimburse Plaintiff for the $20 entry fee or to give “Plaintiff a
half interest in the contest and the million-dollar hole-in-one prize.” (Am.
Compl. ¶ 69; see id. at ¶¶ 70-71). Plaintiff accepted Neary’s offer for “50% of
the million-dollar prize,” if Neary succeeded (Id. at ¶ 70). Sure enough, Neary
made a hole-in-one. (See id. at ¶¶ 61, 75, 107). Plaintiff further alleges that
after Neary made the shot but before he and Neary had verified that the ball
landed in the cup, “Neary again confirmed [Plaintiff’s] 50% interest” in the
million-dollar prize. (Id. at ¶ 82). The Rio Secco employee working at the
seventh hole then confirmed that the ball had landed in the cup. (Id. at ¶ 108).
The foursome’s celebration was short-lived; the Rio Secco employee told
Plaintiff that he and Neary “do not get the million dollars, you only win an
all-expense paid trip back to Las Vegas to compete in a competition at Rio

3

Secco to try to win the $1 million.” (Am. Compl. ¶ 109). A few holes later,
another Rio Secco employee working at a drink cart referred to the contest as
“kind of a bait and switch,” because it leads golfers “to think that a hole-in-one
gets [the golfer] the million dollars.” (Id. at ¶ 111). After the foursome
completed the golf round, Neary was presented with a four-to-five-foot
$1 million novelty check. (Id. at ¶ 112). The check bore apparent
endorsements from “Millionaire Maker,” “Butch Harmon,” “Petron Tequila,” and
“Nike Golf.” (Id.).
2.

The Fine Print

Plaintiff contends that after Neary made the shot, “the Defendants” —
presumably Rio Secco employees — directed Plaintiff and Neary to the rules
printed on Rio Secco’s website, which rules provide that a golfer who
participates in the Hole-in-One Contest and makes a hole-in-one at the seventh
hole would win “an all-expense paid return trip with a companion back to Las
Vegas in November 2016 to compete in a hole-in-one challenge with Butch
Harmon (Tiger Woods’ former golf swing coach), and other [participants] who
got a hole-in-one on the [seventh] hole in 2016.” (Am. Compl. ¶ 113).
In connection with this motion, the Court has reviewed printouts from
Rio Secco’s website of the rules applicable to the Hole-in-One Contest (the
“Contest Rules” or the “Rules”). 2 One section, entitled “Entry,” provides that
“[p]articipation in [the] Rio Secco $1,000,000 Hole Main Event [is] secured

2

Defendants submitted these printouts as an attachment to their motion to dismiss. The
Court will discuss more fully infra, its ability to consider the various materials
submitted by the parties in connection with the motion to dismiss.

4

through: a) witnessed hole-in-one at Rio Secco on hole #7 (witness must be
designated Rio Secco team employee, specifically assigned to witness hole #7
during predetermined schedule)”; or “b) random drawing conducted monthly
during promotion period by Rio Secco management.” (Contest Rules). A
separate provision, entitled “Rio Secco $1,000,000 Hole Prizes,” reads as
follows:
•

Each verified winner of the monthly drawing, and any
person with qualified hole-in-one during the promotion
period will receive the following prizes: three (3) night
stay (room and tax only) at a casino resort affiliate of
Rio Secco to be determined by Rio Secco, two rounds of
(18) holes of golf at Rio Secco and/or Cascata, tee gift,
round trip ground transportation from McCarran
International Airport to the casino resort, from the
casino resort to the golf courses, and from the casino
resort to the event site.

•

Rio Secco $1,000,000 Main Event will be comprised of
each player hitting (3) single golf shots with USGA
approved equipment from a distance of 175 yards on
hole #7 at Rio Secco, at a time determined by Rio Secco
event management, with a $1,000,000 prize awarded
for each hole-in-one on said shots.

•

Each $1,000,000 prize awarded in 20-year annuity —
$50,000 each year for 20 years.

(Id.).
Plaintiff contends that in addition to the prizes listed on the website, a
golfer who prevails in the Hole-in-One Contest would also receive a $500 credit
at the Rio Secco golf shop. (See Am. Compl. ¶ 113 (“[T]he hole-in-one
recipient[] would get a $500 Pro shop credit[] (that was in fact not on the
website)[.]”)). And, indeed, the Amended Complaint recites that on January 31,
2016, “Neary and the Plaintiff were given the $500 Pro shop credit,” which
5

Plaintiff believed to be a “bait and switch.” (Id. at ¶ 211). More specifically,
Plaintiff alleges that the $500 credit “appear[ed] to be a gratuitous ruse in a
series of conflicting and/or alternative prizes given by the Defendants in order
to placate a disgruntled golfer who gets a hole-in-one” that would allow
Defendants “to refuse or argue [that] a one million-dollar debt is not owed by
the Defendants.” (Id. at ¶ 114). Ruse or not, “Plaintiff and Neary … used [the
credit] at the end of the round[.]” (Id. at ¶ 92).
In March 2016, “Caesars and Rio Secco” called Neary to inform him that
the companies had rescheduled the second round of the Hole-in-One Contest
from November 2016 to June 2016. (Am. Comp. ¶ 140). Neary received
another call “in late March or early April 2016” informing him that “because
Caesars or Caesars Palace or the Caesars corporate entity” was entering
bankruptcy, the company “had to cancel or postpone the all-expense paid
return to Las Vegas” for the Hole-in-One Contest. (Id. at ¶ 141).
3.

Neary’s Attempted Assignment

Soon thereafter, on May 2, 2016, Neary executed a document purporting
to assign to Plaintiff “the entire claim and rights to the million dollars, the
million-dollar hole-in-one challenge, and the prizes associated therewith.” (Am.
Compl. ¶ 142). The document is entitled “Assignment of Rights,” and claims to
“assign [Plaintiff] all of [Neary’s] claims, judgments, complaints, actions, and
prizes and/or settlements” against “Caesars and Rio Secco (and all other
possible Defendants involved)” stemming from Neary’s participation in the
Hole-in-One Contest. (Neary Assignment 1-2). The Assignment further recites

6

that the day after the round of golf, Neary “agreed to assign all [his] rights,
including the right to collect any money from or file a legal action against Rio
Secco and Caesars to [Plaintiff],” and that Plaintiff “said he would go back to
the course to further investigate.” (Id. at 1). Neary explained his desire to
assign his rights to Plaintiff because he “did not want to be further upset and
distracted with such a drastic and misleading event, and colossal rip-off.” (Id.).
The document also provides that Neary made the assignment in exchange “for
One ($1.00) Dollar and other good and valuable consideration” (id. at 2);
Plaintiff clarifies in his submissions to the Court that “this is standard, legal
boilerplate that serves to support an assignment, and nothing else,” and, more
particularly, that it is “not evidence of the purchase of a legitimate debt for a
considerable sum of money” (Pl. Opp. 8).
Plaintiff alleges that because Neary had already agreed to give Plaintiff
half of his winnings before making the shot, this later assignment served the
dual purposes of memorializing that preexisting exchange and transferring to
Plaintiff the remainder of the right to those winnings. (See Am. Compl. ¶¶ 18691, 217). Plaintiff thus asserts that he is not prosecuting the instant suit “for,
or on behalf of [Neary], but because [Neary] has [two] young children, and [due
to] the stress of his career, and the anxiety, annoyance, frustration and upset
caused by these events, [he] decided to extricate himself from these events and
assign in totality to [Plaintiff] Neary’s interests in this debt.” (Id. at ¶ 218).

7

4.

Defense Counsel’s Alleged Contact with Neary

Finally, Plaintiff alleges that after filing this lawsuit but before amending
his complaint, on or about January 11 and 12, 2017, one of Defendants’
lawyers contacted Neary in an “attempt to settle the case by having [Neary]
change his testimony or breach the assignment.” (Am. Compl. ¶ 366; see id. at
¶ 345). Specifically, the offer was for Neary “to settle, resolve and[/]or end the
case if [he] accepted an all[-]expense paid trip to Las Vegas for [two] people, and
for [Neary] to hit [three] shots at the 7th green, and to possibly win $1 million []
with a [second] hole[-]in[-]one.” (Id. at ¶ 352). In Plaintiff’s estimation, the
attorney’s conduct amounted to tortious interference with his rights.
B.

Procedural History
Plaintiff filed his initial complaint in this action in the Supreme Court of

New York, New York County, on or about October 6, 2016, seeking $1,000,000
in damages. (Dkt. #1). On November 10, 2016, Defendants removed the action
to federal court on the basis of diversity jurisdiction. (Id.). On December 8,
2016, Plaintiff moved to remand the case to state court (Dkt. #13), but after
Defendants opposed the motion (Dkt. #21), Plaintiff withdrew the remand
motion (Dkt. #25).
On December 16, 2016, Defendants requested a conference in
anticipation of filing a motion to dismiss the complaint. (Dkt. #17). The Court
held such conference on February 1, 2017, during which the Court granted
leave for Plaintiff to amend his complaint and scheduled briefing for a motion

8

to dismiss after Plaintiff amended his complaint. (See Dkt. #33). Accordingly,
Plaintiff filed his Amended Complaint on March 15, 2017. (Dkt. #38).
The Amended Complaint includes six claims:
$

$

A claim for negligence based on Defendants “improperly
training and supervising their employees[,] giving
inaccurate information to the public and to the Plaintiff,
and carelessly marketing the [Hole-in-One Contest].”
(Id. at ¶ 279).

$

A claim for breach of contract, on the theory that
Defendants entered into a contract with Neary under
which Neary was entitled to $1 million for making a
hole-in-one, which contract Neary then assigned to
Plaintiff. (See id. at ¶¶ 287-311).

$

A
claim
for
“intentional
and
material
misrepresentations to the Plaintiff and [Neary]
regarding the [Hole-in-One Contest],” consisting of
Defendants stating “that a hole-in-one got the Plaintiff
and [Neary] a one million-dollar prize.”
(Id. at
¶¶ 314-15).

$

3

A claim for fraud based on a “Rio Secco employee
advis[ing] the Plaintiff, [Neary,] and their group that
entering the [Hole-in-One Contest] and paying the $20
entry fee would get the golfer the one million-dollar prize
should they get a hole-in-one.” (Am. Compl. ¶ 244).

A claim for injunctive relief “against the Defendants …
to stop [them] from presently soliciting and taking the
$20 fee from patrons” for the Hole-in-One Contest; to
compel unspecified “Co-Defendants [to] remove their
names and sponsorship of this fraudulent activity while
this case is pending”; 3 “to compel the Defendants to
change [their] marketing and advertising to the public”;

The Court assumes the “Co-Defendants” to which Plaintiff is referring are Butch
Harmon, Millionaire Maker, and Nike Golf. Defendants’ motion asserts that Butch
Harmon and Nike Golf have retained counsel but have not yet received proper service
(see Def. Br. 7 n.5), and Defendants’ Notice of Removal further provides that “Millionaire
Maker is not a person, business entity or organization” (Dkt. #1 at ¶ 11). Plaintiff does
not dispute these deficiencies in service or pleading. Accordingly, under Federal Rule of
Civil Procedure 4(m), the matter is subject to dismissal without prejudice as to those
Defendants.

9

and to “stop the Defendants, or their agents[,] from
making or discussing offers of settlement or things of
substantial value to [Neary], and/or any other
witnesses.” (Id. at ¶¶ 323-24, 328, 333). 4
$

Finally, a claim for tortious interference with the
putative contractual relationship between Neary and
Plaintiff, arising from the January 2017 interaction
between Neary and Defendants’ counsel. (See id. at
¶¶ 344-70).

Defendants filed the instant motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) on April 7, 2017 (Dkt. #41-44); Plaintiff opposed the
motion on May 8, 2017 (Dkt. #45); and Defendants filed their reply on May 22,
2017 (Dkt. #46).
DISCUSSION
A.

Motions to Dismiss Under Rule 12(b)(6)
1.

Legal Standard

When considering a motion to dismiss under Rule 12(b)(6), a court
should “draw all reasonable inferences in [the plaintiff’s] favor, assume all
well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan
v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). Thus, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

4

Plaintiff has not applied for temporary or preliminary injunctive relief.

10

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to ‘nudge [a plaintiff’s] claims across the line from
conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover,
“the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
2.

Plaintiff’s Pro Se Status

Although Plaintiff is proceeding pro se, he was once a practicing lawyer.
(See, e.g., Pl. Opp. 5). He therefore is not entitled to the solicitude that courts
often afford pro se litigants. See Colliton v. Bunt, 709 F. App’x 82, 83 (2d Cir.
2018) (summary order) (observing that where a plaintiff “is a former lawyer, he
[or she] is not entitled to any special solicitude as a pro se litigant” (citing
Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (“[T]he degree of
solicitude may be lessened where the particular pro se litigant is experienced in
litigation and familiar with the procedural setting presented.”))); accord United
States v. Pierce, 649 F. App’x 117, 118 n.1 (2d Cir. 2016) (summary order)

11

(denying special solicitude to pro se litigant who was disbarred attorney), cert.
denied sub nom. Abakporo v. United States, 137 S. Ct. 841 (2017).
3.

The Court’s Consideration of Documents External to the
Complaint

“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010). “Even where a document is not incorporated
by reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the
complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)). “To be integral to a complaint, the plaintiff must have
[i] ‘actual notice’ of the extraneous information and [ii] ‘relied upon th[e]
documents in framing the complaint.’” DeLuca v. AccessIT Grp., Inc., 695 F.
Supp. 2d 54, 60 (S.D.N.Y. 2010) (last alteration in original) (quoting Chambers,
282 F.3d at 153).
“Merely mentioning a document in the complaint will not satisfy this
standard,” and the exception often applies where “the incorporated material is
a contract or other legal document containing obligations upon which the
plaintiff’s complaint stands or falls, but which for some reason — usually
because the document, read in its entirety, would undermine the legitimacy of
the plaintiff’s claim — was not attached to the complaint.” Goel v. Bunge, Ltd.,
12

820 F.3d 554, 559 (2d Cir. 2016) (quoting Global Network Commc’ns, Inc. v.
City of New York, 458 F.3d 150, 157 (2d Cir. 2006)). Moreover, “even if a
document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity[, relevance,] or accuracy of the
document.” DiFolco, 622 F.3d at 111 (quoting Faulkner v. Beer, 463 F.3d 130,
134 (2d Cir. 2006)).
The parties have submitted a number of documents along with their
briefing on the motion to dismiss. Defendants have submitted with the
Declaration of William A. Lesser the following attachments: (i) a copy of the
purported assignment between Plaintiff and Neary; (ii) a copy of an article to
which the Amended Complaint ostensibly refers; and (iii) a copy of the rules for
the Hole-in-One Contest as presented on Rio Secco’s website. (See Lesser Decl.
¶¶ 2-4). For his part, Plaintiff has submitted, in conjunction with his
opposition brief, a 29-page, 127-paragraph affidavit from himself and a
separate 16-page, 79-paragraph affidavit from Neary. (See Pl. Aff.; Neary Aff.).
With respect to the documents submitted by Defendants, the Court may
properly consider the Contest Rules and the Neary Assignment, but not the
Article. In an effort to persuade the Court not to consider these documents,
Plaintiff argues that “Defendants submit [two] exhibits[] dated [four] years prior
to the” events at issue, but does not explicitly state the precise documents to
which he is referring. (Pl. Opp. 19). The purported assignment is dated May 2,
2016 (Neary Assignment 3), thus post-dating the events in question, and the
Court therefore presumes that Plaintiff is referring to the Article and the

13

Contest Rules. Although the Article is indeed dated February 19, 2012, the
text of the Contest Rules does not provide a date. What is more, the print
information on the bottom of the Contest Rules shows a printing date of April
7, 2017. Although the Article may, in fact, be the same article referenced in
the Amended Complaint, given the discrepancy between its date and the date of
the events in question, Plaintiff has raised a genuine dispute as to the Article’s
relevance. Plaintiff’s analogous argument regarding the Contest Rules is
unpersuasive, however, given their apparent printing date, and Plaintiff raises
no objection to the authenticity or relevance of the Neary Assignment. The
Court shall therefore consider those two documents. See DiFolco, 622 F.3d at
111.
The Court may not, however, consider the affidavits Plaintiff has
submitted. They were neither attached to the Amended Complaint nor
referenced therein. And because Plaintiff included them in opposition to
Defendants’ motion, the affidavits are far from integral to the pleadings —
indeed, Defendants had no notice of them until after moving to dismiss. See
DeLuca, 695 F. Supp. 2d at 60.
B.

Plaintiff’s Breach of Contract Claim Fails
Plaintiff’s breach of contract claim is predicated on his allegations that

(i) Plaintiff and Neary entered into a contract with the Caesars Defendants that
entitled them to $1 million dollars if either of them made a hole-in-one;
(ii) before Neary shot for the hole-in-one, Plaintiff accepted Neary’s offer of half
of the prize if Neary made the shot, and thereby created an oral contract with

14

Neary; and (iii) after Neary made the shot, he assigned to Plaintiff the
remainder of his interest in the prize in a written agreement. As detailed in the
remainder of this section, the claim fails on multiple grounds.
1.

Neary’s Pre-Shot Offer Lacked Consideration

The first deficiency in the putative contract between Neary and Plaintiff is
that Neary’s oral pre-shot offer lacked consideration. 5 “A valid contract under
New York law requires the familiar elements of offer, acceptance, consideration,
mutual assent, and an intent to be bound.” Stone v. Sutton View Capital, LLC,
No. 17 Civ. 1574 (VEC), 2017 WL 6311692, at *4 n.7 (S.D.N.Y. Dec. 8, 2017)
(citing Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004)).
Consideration requires more than a simple cash exchange: it requires “either a
benefit to the promisor or a detriment to the promisee.” Weiner v. McGraw-Hill,
Inc., 57 N.Y.2d 458, 464 (1982); see Genger v. Genger, 663 F. App’x 44, 49 (2d

5

A federal court sitting in diversity applies the choice-of-law rules of the state in which it
sits. See In re Gawker Media LLC, 571 B.R. 612, 626 (Bankr. S.D.N.Y. 2017) (quoting
Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 151 (2d Cir. 2013)). Because
both parties’ briefing relies on New York law and neither party disputes its applicability,
the Court shall apply New York law. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163,
175 (2d Cir. 2000) (“Since no party has challenged the choice of New York [] law, all are
deemed to have consented to its application.”).
In addition, as Defendants note, the laws of New York and Nevada (a potentially
alternative forum) are not in conflict on the issues relevant to this motion. (See, e.g.,
Def. Br. 15). A federal court applying New York’s choice-of-law rules may apply New
York law where it is not “fundamentally dissimilar” from that of the alternative forum.
Seven-Up Bottling Co. (Bangkok) v. PepsiCo, Inc., 686 F. Supp. 1015, 1022 (S.D.N.Y.
1988); accord Nwanza v. Time, Inc., 125 F. App’x 346, 348 n.1 (2d Cir. 2005) (summary
order) (applying New York law where it presented “no substantive difference” with
Pennsylvania law); Secured Capital De Mexico, S. De R.L. De C.V. v. Midland Credit Corp.,
No. 02 Civ. 2434 (AGS), 2003 WL 68042, at *3 (S.D.N.Y. Jan. 7, 2003) (“If there is no
material difference between the relevant laws of the particular jurisdictions, the Court
need not engage in a choice of law analysis and can apply New York law.” (citations
omitted)). Accordingly, the Court notes below how Nevada law aligns with New York law
and further supports the Court’s conclusions.

15

Cir. 2016) (summary order) (quoting Hollander v. Lipman, 885 N.Y.S.2d 354 (2d
Dep’t 2009)). “The promise and the consideration must purport to be the
motive each for the other, in whole or at least in part. It is not enough that the
promise induces the detriment or that the detriment induces the promise if the
other half is wanting.” Allegheny Coll. v. Nat’l Chautauqua Cty. Bank of
Jamestown, 246 N.Y. 369, 373 (1927) (quoting Wis. & Mich. Ry. Co. v. Powers,
191 U.S. 379, 386 (1903)).
Plaintiff argues that Neary’s pre-shot offer of half of his winnings was in
exchange for the $20 entry fee to the Hole-in-One Contest that Plaintiff had
paid for each member of their party. (See Pl. Br. 7-8 (“The exchange of the first
one[-]half interest in the prize is and was a logical arm’s-length transaction and
since [Neary] did not pay back the $20 entry fee, the parties confirmed and
reconfirmed their oral agreement both immediately before, and immediately
after the shot.”)). Significantly, however, this argument conflates Plaintiff’s
payment of the entry fees with Neary’s oral offer. The Amended Complaint
states that Plaintiff paid for “each of the entire foursome’s” entry fee so that
each could “attempt to get a hole-in-one”; after that payment, but “before
[Neary] hit the shot, [he] indicated … that he would either pay [Plaintiff] the $20
back, or instead would give the plaintiff a half interest in the contest and the
million-dollar hole-in-one prize.” (Am. Compl. ¶¶ 67, 69). In other words,
when Neary made his offer, Plaintiff had already paid Neary’s $20 entry fee;
Neary’s offer thus was supported not by valid consideration, but rather by
invalid “past consideration.” Umscheid v. Simnacher, 482 N.Y.S.2d 295, 297

16

(2d Dep’t 1984) (“The general rule is that past consideration is not
consideration[.] A promise supported by past consideration is unenforceable
because the detriment did not induce the promise.” (quoting Citibank, Nat’l
Ass’n v. London, 526 F. Supp. 793, 803 (S.D. Tex. 1981) (construing New York
law))). 6
To be sure, New York law recognizes past consideration as valid
consideration in certain circumstances — as, for example, a “promise in writing
and signed by the promisor … if the consideration is expressed in the writing
and is proved to have been given or performed and would be a valid
consideration but for the time when it was given or performed.” Umscheid, 482
N.Y.S.2d at 297 (quoting and discussing N.Y. Gen. Oblig. Law § 5-1105). This
exception to the general rule, however, requires that the writing “contain an
unequivocal promise to pay a sum certain, at a date certain, and must express
consideration for the promise.” Id. Plaintiff and Neary mention the purported
oral contract in the May 2016 Assignment of Rights, but that document states
that the assignment it attempts to accomplish is “in addition to” the previous
exchange. (Neary Assignment 1). Moreover, the document does not list the
$20 entry fee as the valid consideration underlying the assignment. The

6

Nevada contract law would command the same outcome. See Clark Cty. v. Bonanza No.
1, 96 Nev. 643, 650 (1980) (“A benefit conferred or detriment incurred in the past is not
adequate consideration for a present bargain.” (citing Smith v. Recrion Corp., 91 Nev.
666, 669 (1975) (“Past consideration is the legal equivalent to no consideration.”))); see
also Jones v. SunTrust Mortg., Inc., 128 Nev. 188, 191 (2012) (“Consideration is the
exchange of a promise or performance, bargained for by the parties.” (citing Pink v.
Busch, 100 Nev. 684, 688 (1984))).

17

document therefore does not save Plaintiff’s alleged oral contract from failing
for lack of consideration. 7

7

Although not fatal to Defendants’ motion, the Court rejects Defendants’ ratification
argument. Defendants characterize the Amended Complaint as “alleg[ing] that
Defendants offered, and [Neary] accepted, an oral agreement under which he would win
$1,000,000 for a $20 entry fee and a hole-in-one,” but that “Defendants changed those
terms after [Neary] hit his hole-in-one” and instead offered “a $500 golf shop credit and
an opportunity to attend the Main Event.” (Def. Br. 12-13). Defendants thus contend
that Neary ratified his contract with Defendants under those modified terms. (See id. at
11-15). “‘Ratification’ results when a party to a voidable contract accepts benefits
flowing from the contract, or remains silent, or acquiesces in [the] contract for any
considerable length of time after he has opportunity to annul or void the contract.”
Prudential Ins. Co. of Am. v. BMC Indus., Inc., 630 F. Supp. 1298, 1300 (S.D.N.Y. 1986)
(citation omitted)).
Defendants’ argument disregards the allegation that Neary never received a second trip
to Rio Secco, its associated amenities, or the concomitant opportunity to shoot a second
hole-in-one to win $1 million. (See Am. Compl. ¶¶ 140-41). To hold that a party ratifies
a contract by accepting only a small portion of the contract’s benefits would paint
ratification doctrine with too broad a brush. Indeed, many of the cases on which
Defendants rely support the notion that to be effective, ratification requires a party to
accept, if not all, at least a substantial portion of the benefits of the purported contract.
See, e.g., H & H Acquisition Corp. v. Fin. Intranet Holdings, 669 F. Supp. 2d 351, 360-61
(S.D.N.Y. 2009) (holding plaintiff ratified settlement agreement where defendant “fully
complied with his obligations under the settlement agreement” (emphasis added));
Beutel v. Beutel, 55 N.Y.2d 957, 958 (1982) (holding plaintiff ratified agreement where
plaintiff was competent for “two years during which the contract was effective and fully
performed” (emphasis added)); Palumbo v. Norstar Bank Upstate N.Y., 622 N.Y.S.2d 263,
263-64 (1st Dep’t 1995) (holding plaintiffs ratified agreement where the agreement was
“effective for years before the action was commenced [and] fully performed,” and
“plaintiffs accepted its benefits” (emphasis added)); McLean v. Balkoski, 509 N.Y.S.2d
34, 36 (1st Dep’t 1986) (holding plaintiff ratified marital separation agreement where
she “accepted support payments from defendant for over six years without raising any
objections and received 80% of the proceeds of the sale of their cooperative apartment
pursuant to the terms of the agreement”).
Defendants rely in large part on Nirvana International, Inc. v. ADT Security Services, Inc.,
881 F. Supp. 2d 556 (S.D.N.Y. 2012), aff’d, 525 F. App’x 12 (2d Cir. 2013) (summary
order). There, the plaintiff jewelry store was burglarized and the alarm system installed
by the defendant security company failed to activate; the plaintiff then sought damages
from the security company for approximately $2.4 million in losses. Id. at 557-60. In
response, the security company pointed to a provision in the contract between the
parties limiting its liability to $1,000; the plaintiff claimed, however, that the store’s
owner did not sign the page of the contract containing the liability limitation and that
the company’s version of the contract reflecting such signature was a forgery. Id. at
559-60. Taking the plaintiff’s allegations as true and assuming that the signature was
forged, the court nevertheless held that the plaintiff had ratified the contract and all of
its terms by “accept[ing] the benefits of Defendant’s performance by allowing Defendant
to install the alarm system.” Id. at 561. Here, in sharp contrast, Neary only obtained a
relatively insignificant portion of the benefits flowing from the purportedly modified
contract, i.e., the $500 shop credit but not the return trip to Las Vegas. Moreover, even
if the Court accepted Defendants’ ratification argument, Defendants would not have

18

2.

Neary’s Post-Shot Assignment Was Champertous and Is Thus
Void

Having determined that the alleged oral contract between Neary and
Plaintiff fails for lack of consideration, the Court next considers the validity vel
non of Neary’s May 2016 assignment to Plaintiff. Defendants contend that the
purported assignment contravenes the prohibition on champerty, i.e.,
purchasing a claim for the purpose of bringing suit. The Court agrees.
The “medieval” doctrine of champerty developed to battle the ills
associated with the commodification of litigation. Tr. for the Certificate Holders
of Merrill Lynch Mortg. Inv’rs, Inc. v. Love Funding Corp., 13 N.Y.3d 190, 198
(2009). “Champerty, as a term of art, grew out of the practice where someone
bought an interest in a claim under litigation, agreeing to bear the expenses
but also to share the benefits if the suit succeeded.” Taylor-Burns v. AR Res.,
Inc., 268 F. Supp. 3d 592, 597 (S.D.N.Y. 2017) (quoting Justinian Capital SPC
ex rel. Blue Heron Segregated Portfolio v. WestLB AG, 952 N.Y.S.2d 725, 731
(N.Y. Sup. Ct. 2012)), appeal withdrawn, No. 17-2472, 2017 WL 5495506 (2d
Cir. Nov. 6, 2017). Champerty statutes are designed to “prevent[] the ‘strife,
discord and harassment’ that would be likely to ensue” from trading in claims
for the purpose of bringing suit. Love Funding Corp., 13 N.Y.3d at 199 (quoting
Fairchild Hiller Corp. v. McDonnell Douglas Corp., 28 N.Y.2d 325, 329 (1971)).
New York has codified the prohibition on champerty in Judiciary Law
§ 489(1), which “restricts individuals and companies from purchasing or taking

fully performed under the terms of the ratified agreement, and thus could still be liable
under its terms.

19

an assignment of notes or other securities ‘with the intent and for the purpose
of bringing an action or proceeding thereon.’” Justinian Capital SPC v. WestLB
AG, 28 N.Y.3d 160, 166 (2016) (quoting § 489(1)). The New York Court of
Appeals has clarified that the prohibition applies where “the primary purpose”
of a transaction is “to enable [the purchaser] to bring a suit, and the intent to
bring a suit must not be merely incidental and contingent.” Id. at 166-67
(quoting Moses v. McDivitt, 88 N.Y. 62, 65 (1882)). This analysis distinguishes
“between acquiring a thing in action in order to obtain costs and acquiring it in
order to protect an independent right of the assignee, with only the former
being champertous.” Universal Inv. Advisory SA v. Bakrie Telecom PTE, Ltd., 62
N.Y.S.3d 1, 8-9 (1st Dep’t. 2017) (internal quotation marks and citation
omitted) (quoting Love Funding Corp., 13 N.Y.3d at 199). 8 Thus, an assignment
of rights is not champertous “if its purpose is to collect damages, by means of a
lawsuit, for losses on a debt instrument in which it holds a preexisting
proprietary interest.” Love Funding Corp., 13 N.Y.3d at 195 (emphasis added). 9

8

Champerty is not limited to circumstances where a party, and more specifically a
lawyer, purchases a claim in order to secure “costs.” Justinian Capital SPC v. WestLB
AG, 28 N.Y.3d 160, 167 n.3 (2016). The language in cases referring to efforts to secure
costs “hark[ens] back to earlier cases, from before 1907, when ‘the prohibition of
champerty was limited in scope and largely directed toward preventing attorneys from
filing suit merely as a vehicle for obtaining costs, which, at the time, included attorneys’
fees.’” Id. (quoting Bluebird Partners v. First Fid. Bank, 94 N.Y.2d 726, 734 (2000)). The
New York Court of Appeals has made clear that the champerty law applies with equal
force to entities that would not obtain such fees by bringing suit. Id.

9

Nevada also prohibits champerty and cabins the prohibition in a similar fashion,
though on common law rather than statutory grounds. See Schwartz v. Eliades, 113
Nev. 586, 589-90 (1997) (“To maintain the suit of another is now, and always has been,
held to be unlawful, unless the person maintaining has some interest in the subject of
the suit.” (quoting Lum v. Stinnett, 87 Nev. 402, 408 (1971))); Vosburg Equip. v.
Zupancic, 103 Nev. 266, 268 (1987) (“In 1890 this court held that even in the absence of
statute it was, under the common law of England, unlawful to ‘maintain the suit of

20

Within this framework, Neary’s attempted assignment to Plaintiff
constitutes champerty and is thus void. See Semi-Tech Litig., LLC v. Bankers
Tr. Co., 272 F. Supp. 2d 319, 331 (S.D.N.Y. 2003) (“[A]n assignment made in
violation of [the champerty] statute is void and may not be sued upon.”
(collecting cases)). Neary’s purpose — to allow Plaintiff to prosecute this case
to obtain a money judgment — is clear from the face of the document by which
he attempted to assign his rights to Plaintiff: “If [Plaintiff] sends Rio Secco any
correspondence or legal or other type of document or document requests, Rio
Secco may treat him as if he were me. That is the purpose of this assignment[.]”
(Neary Assignment 1 (emphasis added)). That same document provides that
Plaintiff also agreed to “go back to the course to further investigate” and that
Neary sought to transfer his rights because he “did not want to be further
upset and distracted with such a drastic and misleading event.” (Id.). These
portions of the purported assignment make plain that the purpose of the
assignment was to allow Plaintiff to prepare and file a lawsuit seeking to obtain
the funds to which Plaintiff claims Neary is entitled.
The allegations in the Amended Complaint further support the
conclusion that Neary only attempted to assign his rights to Plaintiff so that
Plaintiff, rather than Neary, could file suit. Indeed, Plaintiff acknowledges that
he pursued this litigation “because [Neary] has [two] young children, and [due
to] the stress of his career, and the anxiety, annoyance, frustration and upset

another’ unless the person maintaining the suit ‘has some interest in the subject of the
suit.’” (quoting Gruber v. Baker, 20 Nev. 453, 469 (1890))).

21

caused by these events, [he] decided to extricate himself from these events and
assign in totality to [Plaintiff] Neary’s interests in this debt.” (Am. Compl.
¶ 218). This desire to avoid “anxiety, annoyance, [and] frustration” —
predictable responses to litigation — confirms that the design of the
assignment was to allow Plaintiff to bring this action in place of Neary. Cf.
Justinian Capital SPC, 28 N.Y.3d at 167 (holding assignment of notes was
champertous where its “impetus … was [the assignee’s] desire to sue
[defendant] for causing the notes’ decline in value and not be named as the
plaintiff in the lawsuit”).
Given the Court’s conclusion that Plaintiff’s alleged oral contract with
Neary is void for lack of consideration, Plaintiff cannot stake a preexisting
interest in any claim that Neary may have had against Defendants in an effort
to validate the assignment. See Love Funding Corp., 13 N.Y.3d at 195. Thus,
Neary’s purported assignment to Plaintiff is void for violating the prohibition on
champerty. See Semi-Tech Litig., LLC, 272 F. Supp. 2d at 331. More
fundamentally, Plaintiff cannot allege a valid contractual relationship with
Defendants on which to premise a breach of contract claim.
C.

Plaintiff’s Tort Claims Fail
As discussed above, Plaintiff alleges the following claims sounding in

tort: (i) fraud, “occur[ring] on January 31, 2016 when the Rio Secco employee
advised the Plaintiff, [Neary,] and their group that entering the [Hole-in-One
Contest] and paying the $20 entry fee would get the golfer the one
million-dollar prize should they get a hole in one” (Am. Compl. ¶ 244);

22

(ii) negligence, “consist[ing] of improperly training and supervising [Rio Secco]
employees and giving inaccurate information to the public and to the Plaintiff,
and carelessly marketing the million-dollar challenge” (id. at ¶ 279); and
(iii) “intentional and material misrepresentations” consisting of the statement
“that a hole-in-one got the Plaintiff and [Neary] a one million-dollar prize” (id. at
¶¶ 314-15). Tellingly, Plaintiff does not seek damages for any injury to his
person or property, but rather compensatory damages for “the one
million-dollar prize” and, for the fraud claim, punitive damages. (Id. at 45).
Indeed, Plaintiff expressly disclaims any liability Defendants may have for the
$20 entry fee Plaintiff paid. (See id. at ¶ 74 (“The Plaintiff [] is not suing for the
return of his $20[.]”). Plaintiff’s tort claims fail because they are duplicative of
his contract claim, and, further, because the negligence claim is barred under
the economic loss doctrine.
1.

Plaintiff’s Tort Claims Are Duplicative of His Contract Claim

“Under New York law, a breach of contract will not give rise to a tort
claim unless a legal duty independent of the contract itself has been violated.”
Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d
42, 58 (2d Cir. 2012). “Such a ‘legal duty must spring from circumstances
extraneous to, and not constituting elements of, the contract, although it may
be connected with and dependent on the contract.’” Id. (quoting ClarkFitzpatrick v. Long Island R.R. Co., 70 N.Y.2d 382, 389 (1987)). In consequence,
where a plaintiff pleads a tort claim in addition to a contract claim and the tort
claim seeks the same benefit sought under the contract claim, the tort claim

23

becomes duplicative of the contract claim and may not stand. See id. (citing
N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316 (1995) (“[W]here a party is
merely seeking to enforce its bargain, a tort claim will not lie.” (internal
citations omitted))).
Plaintiff’s fraud and intentional misrepresentation claims are duplicative
of his contract claim. As an initial matter, the Court shall consider these
claims as a single cause of action, for under New York law, fraud and
intentional misrepresentation are identical, and these claims are thus
duplicative. See Assoun v. Assoun, No. 14 Civ. 1368 (PAC), 2015 WL 110106,
at *5 (S.D.N.Y. Jan. 7, 2015) (“[Plaintiff] alleges a claim for intentional
misrepresentation, which, under New York law, is identical to a claim for
fraud.” (collecting cases)); Nwagboli v. Teamwork Transp. Corp., No. 08 Civ.
4562 (JGK)(KNF), 2009 WL 4797777, at *6 (S.D.N.Y. Dec. 7, 2009) (same).
Where, as here, a fraud claim is based on the “allegation that a party has
made a contractual promise with no intention of performing it,” it may be
“sufficient to support an action for fraud, even where that statement relates to
an agreement between the parties.” VTech Holdings Ltd. v. Lucent Techs., Inc.,
172 F. Supp. 2d 435, 440 (S.D.N.Y. 2001) (quoting Graubard Mollen Dannett &
Horowitz v. Moskovitz, 86 N.Y.2d 112, 122 (1995)). For such a claim to
proceed, it must either “(i) demonstrate a legal duty separate from the duty to
perform under the contract; … (ii) demonstrate a fraudulent misrepresentation
collateral or extraneous to the contract; or (iii) seek special damages that are
caused by the misrepresentation and unrecoverable as contract damages.”

24

Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d
Cir. 1996).
Distilled to its essence, Plaintiff’s fraud claim contends that, having been
assigned Neary’s right to collect on the hole-in-one, Plaintiff is entitled to the
million-dollar prize because Defendants misrepresented the terms of the
Contest as requiring only one successful hole-in-one to win. But given
Plaintiff’s pursuit of the prize money, as opposed to the money he paid to enter
the Contest, his theory of fraud implicitly relies on (i) the alleged promise of $1
million for a successful hole-in-one and (ii) Defendants’ failure to pay such
prize. Plaintiff’s fraud claim is therefore substantively identical to his contract
claim and, indeed, seeks exactly the same damages. See, e.g., TN Metro
Holdings I, LLC v. Commonwealth Ins. Co., 51 F. Supp. 3d 405, 410-12
(S.D.N.Y. 2014) (dismissing fraud claim as duplicative where it sought same
relief as contract claim); Page v. Muze, Inc., 705 N.Y.S.2d 383, 384 (2d Dep’t
2000) (dismissing fraud claims that “allege[d], in essence, that the defendants
promised to give the plaintiff an equity interest in the company and reneged on
that promise”).
A fraud claim alleging that a plaintiff entered a contract in reliance on
misrepresentations may be distinct from a cause of action claiming breach of
the underlying contract — for example, where the fraud claim alleges that a
defendant breached a duty distinct from its contractual duties. See Alpha
Capital Anstalt v. Oxysure Sys., Inc., 252 F. Supp. 3d 332, 340 (S.D.N.Y. 2017).
To that end, Plaintiff here alleges that “false information” “entic[ed him] to enter

25

into the fraudulent contest.” (Am. Compl. ¶ 255). But Plaintiff expressly
disclaims the damages that he would have suffered in reliance on such a
misstatement, namely, the $20 entry fee. Cf. VTech Holdings Ltd., 172 F.
Supp. 2d at 440 (holding fraud claim was distinct from contract claim where it
alleged representations induced plaintiff to enter contract and expenditures
made in reliance on representations). In other words, the $1 million prize
Plaintiff now seeks belies any notion that Plaintiff’s fraud claim is based on
extracontractual duties.
Plaintiff’s negligence claim fares no better. The Amended Complaint does
not identify a specific duty owed to Plaintiff, but merely alleges that
“Defendants owed a duty to the Plaintiff and [Neary] and breached this duty by
giving insufficient and/or inaccurate information to the Plaintiff.” (Am.
Comp. ¶ 280). The Court thus assumes that the duty on which Plaintiff bases
his negligence claim would require Defendants to train employees to
communicate accurately the terms of the Hole-in-One Contest to patrons. But
even assuming Defendants had such a duty, it would be inextricably tied to the
terms of the alleged contract between Defendants and Neary. See Fixed Income
Shares: Series M v. Citibank N.A., 130 F. Supp. 3d 842, 857 (S.D.N.Y. 2015)
(dismissing negligence claim as duplicative of contract claim where “alleged
deficiencies [were] essentially the same ones that g[a]ve rise to” the contract
claim); Clarendon Nat’l Ins. Co. v. Health Plan Administrators, No. 08 Civ. 6279
(GBD), 2009 WL 3053736, at *4 (S.D.N.Y. Sept. 24, 2009) (“If a plaintiff alleges
acts or omissions that are based solely on provisions of a contract, their

26

negligence claim must fail as duplicative.” (citing Metro. W. Asset Mgmt., LLC v.
Magnus Funding, Ltd., No. 03 Civ. 5539 (NRB), 2004 WL 1444868, at *26
(S.D.N.Y. June 25, 2004)). Indeed, Plaintiff would be hard-pressed to identify a
duty requiring Defendants to communicate accurately (or to train their
employees to so communicate) the terms of the Contest without relying on
those same terms. Cf. Waverly Properties, LLC v. KMG Waverly, LLC, 824 F.
Supp. 2d 547, 565 (S.D.N.Y. 2011) (upholding negligence claim as
non-duplicative where it alleged independent legal duty to comply with
municipal construction codes). And the similitude of these claims is
underscored, yet again, by Plaintiff’s pursuit of the $1 million prize rather than
any other damages resulting from Defendants’ alleged negligence. See
Clarendon Nat’l Ins. Co., 2009 WL 3053736, at *4 (dismissing negligence claim
as duplicative that sought “the same amount of damages” as contract claim). 10
2.

The Economic Loss Doctrine Bars Plaintiff’s Negligence Claim

Plaintiff’s negligence claim also fails under New York’s economic loss
doctrine. 11 That doctrine provides that “where plaintiffs allege primarily
10

The outcome would be no different under Nevada law, which prohibits the assignment
of both fraud and negligence claims. Achrem v. Expressway Plaza Ltd. P’ship, 112 Nev.
737, 739-40 (1996) (discussing prohibition on assignments of tort claims as opposed to
proceeds thereof); Prosky v. Clark, 32 Nev. 441 (1910) (“Rights of action based on
fraud … are … not assignable, but are personal to the one defrauded.”).

11

Courts in this District have held that New York’s economic loss doctrine does not apply
to intentional torts such as fraud. See Weisblum v. Prophase Labs, Inc., 88 F. Supp. 3d
283, 297 (S.D.N.Y. 2015). And Nevada courts apply the economic loss doctrine in a
similar fashion. See Davis v. Beling, 128 Nev. 301, 320 (2012) (providing that economic
loss doctrine bars “recovery of purely monetary losses in certain products liability and
unintentional tort actions” but does not bar such recovery where “the defendant
intentionally breaches a duty that is imposed independently of the obligations arising
from contract”); Terracon Consultants W., Inc. v. Mandalay Resort Grp., 125 Nev. 66, 73
(2009) (“[T]he [economic loss] doctrine bars unintentional tort actions when the plaintiff
seeks to recover ‘purely economic losses.’”).

27

economic loss as an injury in a tort claim, ‘the usual means of redress is an
action for breach of contract; a tort action for economic loss will not lie.’” BNP
Paribas Mortg. Corp. v. Bank of Am., N.A., 949 F. Supp. 2d 486, 505-06
(S.D.N.Y. 2013) (quoting In re Adelphia Communications Corp., No. 02-41729,
2007 WL 2403553, at *9 (Bankr. S.D.N.Y. Aug. 17, 2007)). “Under this
principle, the defendant is not liable to a plaintiff for the latter’s economic loss
unless there exists ‘a special relationship that requires the defendant to protect
against the risk of harm to plaintiff.’” Travelers Cas. & Sur. Co. v. Dormitory
Auth.-State of N.Y., 734 F. Supp. 2d 368, 378 (S.D.N.Y. 2010) (quoting 532
Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 289
(2001)). “Professionals, common carriers and bailees, for example, may be
subject to tort liability for failure to exercise reasonable care, irrespective of
their contractual duties. In these instances, it is policy, not the parties’
contract, that gives rise to a duty of due care.” Sommer v. Fed. Signal Corp., 79
N.Y.2d 540, 551-52 (1992) (internal citations omitted).
Here, the application of the economic loss doctrine is clear: Plaintiff does
not seek damages for injuries to his person or property, but for an alleged
injury that is quintessentially economic. See Netzer v. Continuity Graphic
Assocs., Inc., 963 F. Supp. 1308, 1320 (S.D.N.Y. 1997) (“[Plaintiff]’s action
seeks recovery for economic loss, not for injury to his person or damage to his
property, and thus [Plaintiff] has no tort action relating to the performance of
the alleged contract.”). Plaintiff claims expectancy damages, i.e., the amount
Plaintiff expected to profit through Neary’s hole-in-one and attempted

28

assignment, which is a form of damages that falls squarely within the economic
loss doctrine. Travelers Cas. & Sur. Co., 734 F. Supp. 2d at 378 (“[T]o the
extent that a plaintiff claiming economic damages is seeking to recover the loss
of an expectancy interest created by contract in the first instance, the doctrine
channels the dispute into a breach-of-contract action[.]”).
Thus, the economic loss doctrine provides an additional basis to dismiss
Plaintiff’s negligence claim.
D.

Plaintiff’s Intentional Interference Claim Fails
Plaintiff’s final cause of action claims that Defendants’ attorney

“tortious[ly] interfer[ed]” with the alleged assignment between Neary and
Plaintiff by attempting to offer Neary “an all expense paid trip to Las Vegas for
[two] people, and for [Neary] to hit [three] shots at the [seventh] green, and to
possibly win $1 million [] with a [second] hole in one.” (Am. Compl. ¶¶ 352,
357-58). The Court need not belabor why this claim fails.
“Tortious interference with contract requires the existence of a valid
contract between the plaintiff and a third party, defendant’s knowledge of that
contract, defendant’s intentional procurement of the third-party’s breach of the
contract without justification, actual breach of the contract, and damages
resulting therefrom.” Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413,
424 (1996) (emphases added) (citing Israel v. Wood Dolson Co., 1 N.Y.2d 116,
120 (1956)). As discussed above, Neary’s purported assignment to Plaintiff is
void, thus thwarting Plaintiff’s tortious interference claim. In addition, Plaintiff

29

does not allege that Neary breached the alleged assignment. This claim is
therefore dismissed.
E.

Plaintiff Is Not Entitled to Injunctive Relief
Plaintiff seeks injunctive relief as an independent cause of action. (See

Am. Compl. ¶ 323 (“This cause of action is for injunctive relief against the
Defendants[.]”)). To begin, “injunctions are remedies, not causes of action.”
Messinger v. JPMorgan Chase Bank, N.A., No. 13 Civ. 2444 (AJN), 2014 WL
904528, at *2 (S.D.N.Y. Mar. 7, 2014) (quoting Chiste v. Hotels.com L.P., 756 F.
Supp. 2d 382, 406 (S.D.N.Y. 2010)). And whether Plaintiff is pursuing
preliminary or permanent injunctive relief (the pleadings are unclear), he is not
entitled to such remedy because all of his claims fail on the merits. See Amoco
Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545 n.12 (1987) (“The standard
for a preliminary injunction is essentially the same as for a permanent
injunction with the exception that the plaintiff must show a likelihood of
success on the merits rather than actual success.”).
F.

The Court Shall Not Grant Leave to Amend Sua Sponte
Plaintiff has not requested leave to amend his complaint a second time,

and the Court sees no compelling reason to grant such leave sua sponte.
“While leave to amend under the Federal Rules of Civil Procedure is ‘freely
granted,’ no court can be said to have erred in failing to grant a request that
was not made.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (internal
citation omitted). In addition, “[a] plaintiff need not be given leave to amend if
it fails to specify … how amendment would cure the pleading deficiencies in its

30

complaint.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.
2014).
Plaintiff has already had one attempt to amend his pleadings to state
valid claims. More importantly, given the foregoing reasoning, any further
amendment would be futile, thus providing a basis to deny a request for
amendment had Plaintiff so moved. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (affirming denial of motion to amend where complaint’s
deficiencies were “substantive” and thus repleading was futile); United States ex
rel. Tessler v. City of New York, No. 14 Civ. 6455 (JMF), 2016 WL 7335654, at
*5 (S.D.N.Y. Dec. 16, 2016) (refusing to grant leave to amend sua sponte where
amendment would be futile), aff’d, No. 17-178-cv, 2017 WL 4457141 (2d Cir.
Oct. 5, 2017). In any event, Plaintiff has not proposed a second amended
complaint or otherwise indicated that he possesses facts that could cure the
deficiencies identified above. See, e.g., Transeo S.A.R.L. v. Bessemer Venture
Partners VI L.P., 936 F. Supp. 2d 376, 415-16 (S.D.N.Y. 2013); Preira v.
Bancorp Bank, 885 F. Supp. 2d 672, 681 (S.D.N.Y. 2012). Accordingly, the
Court declines to grant Plaintiff leave to amend his complaint once more.
CONCLUSION
Given the foregoing, the Amended Complaint is DISMISSED WITH
PREJUDICE as to Defendants Caesars Entertainment Corporation, incorrectly
named as “Caesars Entertainment”; Caesars Entertainment Operating
Company; Desert Palace, Inc., doing business as Caesars Palace; and Rio
Development Company, incorrectly named as Rio Secco Golf Club. In addition,

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Plaintiff is ORDERED TO SHOW CAUSE, on or before Friday, March 9, 2018,
why the Amended Complaint should not be dismissed without prejudice as to
Defendants Butch Harmon, Millionaire Maker, and Nike Golf for failure to serve
within the time frame specified by Federal Rule of Civil Procedure 4(m).
SO ORDERED.
Dated:

February 23, 2018
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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