Nooney v. Stubhub, Inc., No. 27408.

CourtSupreme Court of South Dakota
Writing for the CourtZINTER, Justice.
Citation873 N.W.2d 497
Parties John K. NOONEY and Kimberly Nooney, Plaintiffs and Appellants, v. STUBHUB, INC., a Delaware Corporation, Defendant and Appellee.
Docket NumberNo. 27408.
Decision Date30 December 2015

873 N.W.2d 497

John K. NOONEY and Kimberly Nooney, Plaintiffs and Appellants,
v.
STUBHUB, INC., a Delaware Corporation, Defendant and Appellee.

No. 27408.

Supreme Court of South Dakota.

Considered on Briefs Nov. 30, 2015.
Decided Dec. 30, 2015.


873 N.W.2d 498

Robert J. Galbraith of Nooney & Solay, LLP, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.

Jeffery D. Collins, Dana Van Beek Palmer of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, South Dakota, Attorneys for defendant and appellee.

ZINTER, Justice.

¶ 1.] John and Kimberly Nooney sued StubHub Inc. after tickets they purchased from StubHub for a concert were not honored at the event. In granting StubHub's motion to dismiss for failure to state a claim, the circuit court considered a document that was not attached to the complaint. On appeal, Nooneys argue that the court erred in considering the document without converting the motion to dismiss to a motion for summary judgment. Nooneys also argue that the court erred in dismissing the complaint on the merits. We affirm the court's consideration of the document because it was referenced in the complaint, but we reverse the court's dismissal on the merits.

Facts and Procedural History

[¶ 2.] In June 2014, Nooneys purchased tickets from StubHub for a concert in Colorado. The day of the concert, they traveled to the concert venue and presented their tickets. The tickets were invalid, and Nooneys were denied access to the concert. On October 21, 2014, they commenced this action for breach of contract and fraudulent inducement.

[¶ 3.] Nooneys' complaint alleged StubHub made representations that the tickets would allow access to the concert. In the event that the tickets were invalid, Nooneys pleaded that the StubHub "Fan Protect Guarantee" represented that StubHub would provide comparable replacement tickets. Nooneys pleaded that after being denied access to the event, StubHub informed them that StubHub would not honor the Fan Protect Guarantee.

[¶ 4.] StubHub moved to dismiss under SDCL 15–6–12(b)(5), arguing that Nooneys' complaint failed to state a claim upon which relief could be granted. In support of the motion, StubHub submitted an affidavit of a StubHub employee. The affidavit included four exhibits: (1) screen shots of a StubHub registration page and a user agreement link, (2) a copy of a 2010 user

[873 N.W.2d 499

agreement that was in effect when John Nooney initially registered with StubHub, (3) a copy of a 2014 user agreement that was in effect when John Nooney purchased the tickets for the concert, and (4) a screen shot of the StubHub Fan Protect Guarantee.

¶ 5.] Nooneys responded with an affidavit and brief. After a hearing, the circuit court granted the motion. The court's memorandum decision reflects that the court relied solely on the complaint and the StubHub Fan Protect Guarantee.

[¶ 6.] Nooneys' appeal presents two questions. First, a procedural question—whether the court erred in considering the Fan Protect Guarantee without treating the motion to dismiss as a motion for summary judgment. Second, a substantive question—whether Nooneys' complaint failed to state a claim upon which relief could be granted.

Decision

[¶ 7.] A court may not consider documents "outside" the pleadings when ruling on a motion to dismiss for failure to state a claim. SDCL 15–6–12(b)(5). If "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Id.

[¶ 8.] In this case, the Fan Protect Guarantee was not "outside" of the pleadings. Nooneys effectively incorporated the Fan Protect Guarantee in their complaint...

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8 practice notes
  • Richardson v. Richardson, 27754
    • United States
    • Supreme Court of South Dakota
    • December 27, 2017
    ...by the notice of review.3 We review a dismissal for failure to state a claim de novo. Nooney v. StubHub, Inc. , 2015 S.D. 102, ¶ 9, 873 N.W.2d 497, 499.4 The grounds for divorce set forth in SDCL 25-4-2 are: adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperanc......
  • State v. Arguello, No. 27351.
    • United States
    • Supreme Court of South Dakota
    • December 30, 2015
    ...was not fundamental error meriting automatic reversal where the party failed to object and no prejudice or harm was shown).5 See also [873 N.W.2d 497State v. Lopes, 78 Conn.App. 264, 826 A.2d 1238, 1252–53 (2003) (holding that the defendant was not entitled to reversal without a showing of ......
  • Thom v. Barnett, 29546
    • United States
    • South Dakota Supreme Court
    • November 24, 2021
    ...requirements for ratification of an action by the real party in interest. See generally Nooney v. StubHub, Inc., 2015 S.D. 102, ¶ 8 n.1, 873 N.W.2d 497, 499 n.1 (explaining that it is appropriate to be guided by federal court decisions interpreting and applying similar federal rules of civi......
  • Abdulrazzak v. S.D. Bd. of Pardons & Paroles, #28685
    • United States
    • Supreme Court of South Dakota
    • March 4, 2020
    ...of federal courts can assist our efforts to interpret our corresponding rules. See Nooney v. StubHub, Inc. , 2015 S.D. 102, ¶ 8 n.1, 873 N.W.2d 497, 499 n.1 (observing that federal court interpretations of similar rules are not binding on this Court, but they may be useful for guidance).7 S......
  • Request a trial to view additional results
8 cases
  • Richardson v. Richardson, 27754
    • United States
    • Supreme Court of South Dakota
    • December 27, 2017
    ...by the notice of review.3 We review a dismissal for failure to state a claim de novo. Nooney v. StubHub, Inc. , 2015 S.D. 102, ¶ 9, 873 N.W.2d 497, 499.4 The grounds for divorce set forth in SDCL 25-4-2 are: adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperanc......
  • State v. Arguello, No. 27351.
    • United States
    • Supreme Court of South Dakota
    • December 30, 2015
    ...was not fundamental error meriting automatic reversal where the party failed to object and no prejudice or harm was shown).5 See also [873 N.W.2d 497State v. Lopes, 78 Conn.App. 264, 826 A.2d 1238, 1252–53 (2003) (holding that the defendant was not entitled to reversal without a showing of ......
  • Thom v. Barnett, 29546
    • United States
    • South Dakota Supreme Court
    • November 24, 2021
    ...requirements for ratification of an action by the real party in interest. See generally Nooney v. StubHub, Inc., 2015 S.D. 102, ¶ 8 n.1, 873 N.W.2d 497, 499 n.1 (explaining that it is appropriate to be guided by federal court decisions interpreting and applying similar federal rules of civi......
  • Abdulrazzak v. S.D. Bd. of Pardons & Paroles, #28685
    • United States
    • Supreme Court of South Dakota
    • March 4, 2020
    ...of federal courts can assist our efforts to interpret our corresponding rules. See Nooney v. StubHub, Inc. , 2015 S.D. 102, ¶ 8 n.1, 873 N.W.2d 497, 499 n.1 (observing that federal court interpretations of similar rules are not binding on this Court, but they may be useful for guidance).7 S......
  • Request a trial to view additional results

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