Brick v. Ticketmaster, LLC

2020 IL App (1st) 191171-U

HARTE BRICK, Petitioner-Appellant, v. TICKETMASTER, LLC, a Virginia Corporation, Respondent-Appellee.

No. 1-19-1171

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

June 24, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County

2018-L-012589

Honorable Patricia O'Brien Sheahan, Judge Presiding

JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Ellis and Justice Cobbs concurred in the judgment.

ORDER

¶ 1 Held: Trial court did not err by dismissing petition for pre-suit discovery where petitioner pled that the respondent-in-discovery was potentially liable for the alleged injury.

¶ 2 Harte Brick, who purchased concert tickets for more than their face value from a ticket reseller using Ticketmaster's website, petitioned pursuant to Illinois Supreme Court Rule 224 (eff. May 30, 2008) for pre-suit discovery of all members of Ticketmaster's Resale Partner Program who were also using Ticketmaster's web-based inventory management and point-of-sale system, TradeDesk, to buy and resell event tickets. Brick alleged Ticketmaster was secretly facilitating the mass purchase and overpriced resale of tickets by these professional ticket scalpers, in order to increase the number of transactions and thus increase Ticketmaster's earnings. The trial court granted Ticketmaster's motion to dismiss Brick's petition as an impermissible use of Illinois' pre-suit discovery rule, given that she was already aware of a potential defendant, namely Ticketmaster. See 735 ILCS 5/2-619(a)(9) (West 2018)). On appeal, Brick contends the dismissal was contrary to the purpose of Rule 224 because she sought the resellers' identities in order to bring class action claims of consumer fraud and unjust enrichment, but if she first sues only Ticketmaster, her action will be dismissed due to a class action waiver and mandatory arbitration language in Ticketmaster's ticket sales contract. Ticketmaster responds that the dismissal should be affirmed because pre-suit discovery is available only when the petitioner does not know the identity of any party potentially liable for the alleged injury, and that it is irrelevant that Brick wants to sue others or that Ticketmaster might compel arbitration.

¶ 3 We have jurisdiction over Brick's appeal pursuant to Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017) from a final judgment of the circuit court.

¶ 4 Supreme Court Rule 224 provides potential plaintiffs with a means to compel discovery in order to identify persons or entities "who may be responsible in damages" (eff. May 30, 2008). A Rule 224 petition creates an independent action for discovery and is not a complaint at law as it does not allege actionable conduct or seek damages. Gonzales v. Pro Ambulance Service, 219 Ill. App. 3d 284, 287, 579 N.E.2d 1184, 1186 (1991). The petition must be brought in the name of the petitioner and name as respondents the persons or entities from whom discovery is sought, state a reason why the discovery is necessary and the nature of the discovery sought, and ask for an order authorizing the petitioner to obtain the discovery. Guava LLC v. Comcast Cable Communications, LLC, 2014 IL App (5th) 130091, ¶ 61, 10 N.E.3d 974; Ill. S. Ct. R. 224(a)(1)(ii) (eff. May 30,2008).

¶ 5 In her petition for discovery from Ticketmaster, Brick alleged that Ticketmaster is " 'the world's largest ticket supplier' " and " 'has a near monopoly on major event seating in North America.' " Brick alleged she bought tickets through Ticketmaster's website from a third-party reseller for a summer 2018 concert at Chicago's Soldier Field. She did not specify the price, but alleged she "paid more than face value" for the tickets. She cited newspaper articles indicating that undercover reporters posing as professional ticket resellers in the summer of 2018 had been "welcomed" to a Ticketmaster marketing event and been assured that Ticketmaster " 'turns a blind eye to scalpers who use ticket-buying bots and fake identities to snatch up tickets and then resell them on the site for inflated prices.' " Brick alleged that she and others had been damaged by ticket resellers and Ticketmaster because Ticketmaster "permitted and actively encouraged" scalpers to purchase large numbers of tickets and resell them at inflated prices. She alleged that Ticketmaster "supported" and "facilitated the sale of tickets to the secondary market" through a combination of its Resale Partner Program and the use of TradeDesk, Ticketmaster does not publicize TradeDesk's existence, TradeDesk is a secret inventory-management and point-of-sale system that was " 'built expressly for ticket resellers,' " and TradeDesk enables " 'scalpers to seamlessly sync their Ticketmaster accounts (where they buy their tickets) with their online resale [of the verified tickets]." Consequently, " 'TradeDesk users [are] moving up to several million tickets per year.' " Brick sought discovery of the names and addresses of all members of Ticketmaster's Resale Partner Program that were using TradeDesk, so that she could name them in "a class action lawsuit, sounding in unfair and deceptive acts or practices and for unjust enrichment."

¶ 6 Ticketmaster filed a motion to dismiss in which it argued that Brick could not use Rule 224to conduct pre-suit discovery from Ticketmaster when she was already aware that Ticketmaster was a potential defendant. Ticketmaster related that the parties' attorneys had met to discuss the action, Ticketmaster's attorney asked whether Brick was considering suing Ticketmaster for the conduct described in her pre-suit petition, and Brick's attorney would not rule out this possibility and declined to stipulate that Ticketmaster was not a potential defendant. Ticketmaster argued Brick's petition should be dismissed because caselaw indicates "a Rule 224 petition is not an appropriate vehicle to discover the identities of additional responsible parties or additional facts bolstering a claim of liability."

¶ 7 After briefing and oral arguments, the trial court acknowledged that there could be many other potential defendants but that Brick indisputably already knew of Ticketmaster's connection to her alleged injury. The court ruled that Brick's action must be dismissed because "Ticketmaster's presence precludes a Rule 224 Petition."

¶ 8 On appeal from that ruling, the parties disagree on the applicable standard of review, because they disagree on what occurred in the trial court. They agree that generally the denial of a Rule 224 petition is reviewed for an abuse of discretion, but that when the trial court's exercise of discretion relies on a conclusion of law, then the ruling is reviewed de novo. Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 709, 929 N.E.2d 666, 672 (2010). Brick contends the de novo standard governs because the court denied (rather than dismissed) her petition, without considering whether Brick's purpose for the petition had been achieved, by ruling as a matter of law that her knowledge of at least one potential defendant meant she was not entitled to pre-suit discovery. According to Ticketmaster, we should employ the abuse of discretion standard of review because the trial court granted Ticketmaster's motion to dismiss Brick's petition, after determining thatregardless of Brick's desire to sue other entities, the purpose of a Rule 224 petition had already been achieved. Ticketmaster contends Low Cost Movers v. Craigslist, Inc., 2015 IL App (1st) 143955, 45 N.E.3d 357, is on point and indicates that the abuse of discretion standard governs our review of the dismissal.

¶ 9 Given that the trial court ruled on Ticketmaster's motion to dismiss Brick's petition, which argued that Brick's petition was facially defective, instead of granting or denying Brick's petition on its merits, we find that the de novo standard which governs review of section 2-615 proceedings is controlling. A motion to dismiss a complaint or petition pursuant to section 2-615 of the Code of Civil Procedure attacks the legal sufficiency of the allegations. Hampton v. Chicago Transit Authority, 2018 IL App (1st) 172074, ¶ 19, 138 N.E.3d 751. In contrast, a motion to dismiss pursuant to section 2-619 admits the legal sufficiency of the allegations, but raises an affirmative defense or another basis to defeat the claims alleged. Hampton, 2018 IL App (1st) 172074, ¶ 19, 138 N.E.3d 751; 735 ILCS 5/2-619(a)(9) (West 2018). Although Ticketmaster cited section 2-619 in its motion to dismiss, Ticketmaster's motion did not inform the trial court of an affirmative matter outside the petition, as section 2-619 motions do, such as a bankruptcy, or a doctrine such as res judicata or governmental immunity, which would preclude proceeding on an otherwise viable pleading. See 735 ILCS 5/2-619(a)(6) (West 2018) ("the claim set forth in the plaintiff's pleading has been released, satisfied of record, or discharged in bankruptcy"; 735 ILCS 5/2-619(a)(4) (West 2018) ("the cause of action is barred by a prior judgment"); Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 763 N.E.2d 756 (2002) (indicating governmental immunity is an affirmative matter that is properly raised in a section 2-619(a)(9) motion to dismiss, as that section permits involuntary dismissal where the claim asserted againstdefendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim).

¶ 10 We do not consider Low Cost Movers to be procedurally on point as Ticketmaster argues, because Ticketmaster's motion to dismiss called the court's attention to the insufficiency of Brick's allegations, while in Low Cost Movers, a trial judge sua sponte dismissed a Rule 224 petition at the conclusion of a status call, because the respondent-in-discovery had satisfied...