United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION TO DISMISS
William T. Lawrence, Judge
cause is before the Court on the Motion to Dismiss filed by
the Defendant, Indianapolis Colts, Inc. ("the
Colts"). Dkt. No. 8. The motion is fully briefed, and
the Court, being duly advised, GRANTS the
motion for the reasons set forth below.
Defendant moves to dismiss the Plaintiffs Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6), arguing that the
Complaint fails to state a claim for which relief can be
granted. In reviewing a Rule 12(b)(6) motion, the Court
"must accept all well pled facts as true and draw all
permissible inferences in favor of the plaintiff."
Agnew v. National Collegiate Athletic Ass 'n,
683 F.3d 328, 334 (7th Cir. 2012). For a claim to survive a
motion to dismiss for failure to state a claim, it must
provide the defendant with "fair notice of what the . .
. claim is and the grounds upon which it rests."
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)
(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007))
(omission in original). A complaint must "contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face."
Agnew, 638 F.3d at 334 (citations omitted). A
complaint's factual allegations are plausible if they
"raise the right to relief above the speculative
level." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556(2007).
Plaintiff, Yehuda Frager, has brought a claim for tortious
conversion against the Defendant, Indianapolis Colts, Inc.,
alleging that the Defendant's refusal to renew the
Plaintiffs season tickets for the 2016 season constitutes
conversion of property that rightfully belongs to him. For
the purposes of this motion, the Court accepts the following
facts as true.
recent years, the Plaintiff has purchased and renewed a total
of 94 season tickets from the Colts. In 2015, he renewed his
94 season tickets and paid the invoice. The standard invoice,
submitted by the Plaintiff as an Exhibit to his Complaint,
provides that "[e]ach ticket purchased grants a
revocable license to entry into Lucas Oil Stadium and a
spectator seat for a particular game." Dkt. No. 2 at 1.
invoice further states: "The COLTS reserve the rights to
allocate tickets and seat locations and to reject any order,
transfer, or renewal." Id. It also provides
that season ticket holders may transfer ownership of their
season tickets from "October 1st to December 31st."
Id. Under the Colts' STR Marketplace Program,
season ticket holders are permitted to transfer their season
tickets to other people but must pay a thirty-percent fee to
the Defendant in order to do so. The Defendant rejected the
Plaintiffs request that his tickets be renewed for the 2016
state a valid claim for conversion, and thus survive a motion
to dismiss, [a plaintiff] must allege facts showing that it
has 'an immediate, unqualified right to possession
resting on a superior claim of title' and establish the
'appropriation of personal property by another for that
party's own use and benefit in exclusion and defiance of
the owner's rights.'" Estate of Verdak v.
Butler Univ., 856 N.E.2d 126, 136 (Ind.Ct.App. 2006)
(quoting Shourekv. Stirling, 621 N.E.2d 1107, 1109
Colts argue that the Plaintiff fails to state a claim upon
which relief can be granted because he cannot claim an
ownership or possessory interest in the 2016 season tickets.
The Colts argue that the invoice that the Plaintiff attached
to his Complaint shows that the Plaintiff had no ownership
interest in season tickets for the 2016 season. Specifically,
the Colts point to the language of the invoice that states
that each ticket is a "revocable license" and that
"[t]he COLTS reserve the right ... to reject any
order, transfer, or renewal." Dkt. No. 2.
Plaintiff responds by citing two cases in which bankruptcy
courts found that a season ticket holder had an enforceable
right to renew season tickets such that the tickets were
considered property of a bankruptcy estate. However, the two
cases cited by the Plaintiff in support of his claim are
easily distinguishable. In In re Id. Craig Service
Corporation, 138 B.R. 490 (Bankr. W. D. Pa. 1992), each
season ticket holder automatically received an annual offer
to purchase season tickets and received the tickets after
paying. The season ticket holder was allowed to transfer his
holder status. Notably, while individual tickets contained
language signifying that it was a revocable license, the same
limiting language was not present in the handbook for season
ticket holders. The court found an "expectancy
interest" based on the practices of the Pittsburgh
Steelers. Id. at 495. Likewise, in In re
Piatt, 292 B.R. 12 (Bankr. D. Mass. 2003), the team
automatically sent renewal letters to the previous season
ticket holders, who needed only to sign the invoice and pay
the amount owed. The team also regularly allowed transfers.
The court found that these practices "create[d] a
property right in the season ticket holder."
Id. at 17.
contrast, the multitude of cases cited by the Defendant have
found that a season ticket holder does not have a right to
renew. Dkt. No. 9 at 7-8 (citing In re Harrell, 73
F.3d 218, 219 (9th Cir. 1996) (applying Arizona law)
("[A] mere expectation of renewal of an interest in
property is not a property right."); In re
Livingston, 28 F.Supp.2d 623, 625-26 (D. Colo. 1998)
(holding that the Denver Broncos had no duty to extend to the
defendant any right to renew his tickets); In re
Liebman, 208 B.R. 38, 39 (Bankr. N.D. 111. 1997)
(holding that a season ticket holder does not have a property
interest in the right to renew); Yarde Metals v. New
England Patriots Ltd. P'ship, 834N.E.2d 1233, 1236
(Mass. App. Ct. 2005) ("The purchase of a ticket to a
sports or entertainment event typically creates nothing more
than a revocable license."); Wichita State Univ.
Intercollegiate Athletic Ass 'n, Inc. v. Marrs, 28
P.3d 401, 403 (Kan.Ct.App. 2001) (holding that an option to
renew does not prevent the owner of the facility from
revoking that option to renew for future seasons);
Soderholm v. Chicago Nat'lLeague Ball Club,
Inc., 587 N.E.2d 517, 520-21 (111. Ct. App. 1992)
(holding that a season ticket "consists of a series of
revocable licenses" and the holder does not have a
contractual right to an annual option to repurchase those
tickets); Bickett v. Buffalo Bills, Inc., 472
N.Y.S.2d 245, 247 (N.Y. Sup. Ct. 1983) ("[A] ticket to
an entertainment performance or activity does not create a
right in rem."); Kully v. Goldman, 305 N.W.2d
800, 803 (Neb. 1981) (holding defendant had no contractual
right to purchase future season tickets); Tauber v.
Jacobson, 293 A.2d 861, 865-67 (D.C. Ct. App. 1972)
(defendant's course of conduct in buying football season
tickets and selling them did not create any property
case, the clear and unambiguous language of the invoice makes
clear that the Colts have retained the right to reject any
renewal. While a season ticket holder may be permitted to
transfer any rights he may have, those rights are created by
the contract. The Colts simply are not contractually
obligated to renew a season ticket holder's account each
year. The back of the invoice expressly curtails renewal
rights. The intent of the Colts is clear from this language.
As such, the Plaintiff did not have an ...