BCG Masonic Cleveland, LLC v. Live Nation Entm't, Inc.

570 F.Supp.3d 552

BCG MASONIC CLEVELAND, LLC f/k/a TempleLive Cleveland, LLC, Plaintiff,

v.LIVE NATION ENTERTAINMENT, INC. ; and Live Nation Worldwide, Inc., Defendants.

Case No. 1:21-cv-00710

United States District Court, N.D. Ohio.

Signed November 5, 2021

Darren J. Dowd, David M. Dvorin, Dustin S. Lewis, Lieberman Dvorin & Dowd, Pepper Pike, OH, John M. Scott, Conner & Winters, Fayetteville, AR, for Plaintiff.

Kelsey J. Mincheff, Thompson Hine, Dayton, OH, Mark R. Butscha, Thomas L. Feher, Thompson Hine, Cleveland, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

PAMELA A. BARKER, UNITED STATES DISTRICT JUDGE

Currently pending is Defendants Live Nation Entertainment, Inc.’s and Live Nation Worldwide, Inc.’s (collectively, "Live Nation") Motion to Dismiss Plaintiff's Complaint. (Doc. No. 6.) Plaintiff BCG Masonic Cleveland, LLC, f/k/a TempleLive Cleveland, LLC ("TempleLive") filed a Response to Defendants’ Motion to Dismiss on June 21, 2021, to which Live Nation replied on July 6, 2021. (Doc. Nos. 7, 9.) For the following reasons, Live Nation's Motion is GRANTED.

I. Background

TempleLive is an Arkansas limited liability company that operates a concert venue in Cleveland, Ohio. (Doc. No. 1, ¶ 1.) Live Nation produces live music concerts around the world. (Id. at ¶ 20.) Live Nation is engaged in virtually every aspect of concert production, from representing hundreds of music acts to promoting and advertising concerts, to owning, operating, and/or holding exclusive booking rights for 273 concert venues around the world. (Id. ) Further, due to its affiliation with non-party Ticketmaster, Live Nation also generates additional revenues through the event ticketing market.¹ (Id. at ¶ 18.)

In 2018, TempleLive acquired the Cleveland Masonic Temple, with the intention of renovating the building into a multi-use entertainment and event facility. (Id. at ¶ 13.) When TempleLive entered the Cleveland music scene in 2018, it required various services related to the operation of a mid-size music venue, including "facilities operation, booking promotion, ticketing, and other operational needs." (Id. at ¶ 37.) Thus, in 2018, TempleLive entered into certain agreements with Live Nation and Ticketmaster whereby "all TempleLive events were booked, promoted, ticketed, and conducted exclusively by" Live Nation and Ticketmaster. (Id. at ¶ 38.)

Between 2018 and the onset of the COVID-19 pandemic in early 2020, TempleLive hosted several musical and comedy acts at the Cleveland Masonic Temple, including Sturgill Simpson, Bastille, and the Pixies. (Id. at ¶ 14.) During its relationship with TempleLive, Live Nation booked a total of 41 events at TempleLive. (Id. at ¶ 15.) According to TempleLive, it "easily has the capability to hold 80 or more events per year." (Id. at ¶ 16.) "In reliance on past, current and future events, contracts, and contractual expectancies," TempleLive entered into contracts to begin developing a "world-class hotel facility" adjacent to its performance space. (Id. at ¶ 17.)

However, disputes arose between TempleLive and Live Nation in mid-2019. (Id. at ¶ 39.) Eventually, the parties entered into a Confidential Settlement Agreement ("CSA"), whereby each party released the other from any claims for additional compensation.² (Id. at ¶ 40.) Additionally, under the CSA, TempleLive "ceased using Live Nation for managing, booking, and promoting of events" but continued using Ticketmaster for event ticketing. (Id. at ¶¶ 43, 45.) After November 2019, TempleLive engaged third parties to handle many of the duties Live Nation previously handled, including contracting with a third-party booking agent who is responsible for booking and promoting TempleLive shows. (Id. at ¶¶ 47, 55.)

TempleLive alleges that, at some point after TempleLive and Live Nation executed the CSA (TempleLive does not allege precisely when), its Current Booking Agent approached a Live Nation employee regarding available artists to perform at TempleLive. (Id. at ¶ 57.) Allegedly, the Live Nation employee told the Current Booking Agent that he would need to speak with employees at Live Nation's headquarters in Beverly Hills, California. (Id. at ¶ 58.) Subsequently, the Live Nation employee reported back to TempleLive's Current Booking Agent "that Live Nation would not book events at TempleLive because TempleLive allegedly owes money to Live Nation." (Id. at ¶ 59.)

TempleLive further alleges that, "[s]ometime later," its Current Booking Agent approached a different Live Nation employee, again inquiring as to the availability of Live Nation-represented musicians to perform at TempleLive. (Id. at ¶¶ 60, 61.) This Live Nation employee also told the Current Booking Agent that he would have to confer with Live Nation's headquarters staff. (Id. at ¶ 62.) Subsequently, this Live Nation employee informed TempleLive's Current Booking Agent that Live Nation "would not book any acts with TempleLive because it ‘owed money to Live Nation.’ " (Id. )

TempleLive alleges that Live Nation's statements were knowingly false when Live Nation's employees made them to TempleLive's Current Booking Agent. (Id. at ¶ 63.) TempleLive asserts that it "would be an appropriate venue for a number of artists controlled by Live Nation" and, thus, TempleLive had "a legitimate business expectancy in booking artists for its venue." (Id. at ¶ 64.) TempleLive further alleges that it maintains a contractual relationship with its Current Booking Agent and that Live Nation was aware of that contractual relationship. (Id. at ¶ 65.)

Following the dissolution of TempleLive's and Live Nation's relationship in November 2019, TempleLive alleges that it was "left to compete against Live Nation (and others) for artists, tours, and events." (Id. at ¶ 44.) According to TempleLive, Live Nation "controlled other tours and artists that would have been suitable acts to perform at TempleLive." (Id. at ¶ 44.) TempleLive alleges that Live Nation has not booked any acts at TempleLive since November 2019. (Id. at ¶ 70.)

TempleLive filed its Complaint against Live Nation on March 31, 2021. (Id. ) TempleLive alleges two causes of action: (1) Count 1, tortious interference with business and contractual expectancies and relationships, and (2) Count 2, breach of contract. (Id. at ¶¶ 78-95.) Live Nation filed a Motion to Dismiss TempleLive's Complaint on May 20, 2021. (Doc. No. 6.) TempleLive filed a Response to the Motion to Dismiss on June 21, 2021, to which Live Nation replied on July 6, 2021. (Doc. Nos. 7, 9.) Thus, Live Nation's Motion is ripe for a decision.

II. Standard of Review

Live Nation moves to dismiss TempleLive's Complaint claim for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Under Fed. R. Civ. P. 12(b)(6), the Court accepts the plaintiff's factual allegations as true and construes the Complaint in the light most favorable to the plaintiff. See Gunasekera v. Irwin , 551 F.3d 461, 466 (6th Cir. 2009). In order to survive a motion to dismiss under this Rule, "a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’ " Tackett v. M & G Polymers, USA, LLC , 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief above the speculative level—"does not ‘require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.’ " Bassett v. National Collegiate Athletic Ass'n. , 528 F.3d 426, 430 (6th Cir. 2008) (quoting in part Twombly , 550 U.S. at 555-56, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Deciding whether a complaint states a claim for relief that is plausible is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937.

Consequently, examination of a complaint for a plausible claim for relief is undertaken in conjunction with the "well-established principle that ‘ Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ " Gunasekera , 551 F.3d at 466 (quoting in part Erickson v. Pardus , 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) ) (quoting Twombly, 127 S.Ct. at 1964 ). Nonetheless, while " Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

III. Analysis

A. Tortious Interference

In Count 1, TempleLive alleges a combined claim for tortious interference with its business and contractual expectancies and relationships. (Doc. No. 1, ¶¶ 78-85.) Live Nation moves to dismiss this count for failure to state a claim. (Doc. No. 6, PageID# 91.) The Court concludes that TempleLive fails to state a claim for either tortious interference with a contract or tortious interference with business relationships and, thus, grants Live Nation's Motion with respect to Count 1.

Ohio law recognizes claims for tortious interference with a contract as well as for tortious interference with a business relationship. Georgia-Pacific Consumer Products LP v. Four-U-Packaging, Inc. , 701 F.3d 1093, 1102 (6th Cir. 2012). To prove a claim of tortious interference ...