Giampietro v. Viator, Inc.

140 F.Supp.3d 366

Megan M. Giampietro and Samuel Giampietro

v.Viator, Inc. and Tripadvisor LLC

CIVIL ACTION NO. 15-3920

United States District Court, E.D. Pennsylvania.

Signed September 29, 2015

Filed September 30, 2015

Anthony J. Giosa, Giosa & Hetznecker PC, Philadelphia, PA, for Plaintiff.

Christine E. Weller, Alva Mather, Griesing Law LLC, Philadelphia, PA, for Defendant.

MEMORANDUM

DALZELL, District Judge

I. Introduction

We consider here defendants' motion to dismiss plaintiffs Megan and Samuel Giampietro's complaint. The Giampietros are suing defendants Viator, Inc. and TripAdvisor LLC in connection with a scooter accident that happened while they were on vacation in Italy. The Giampietros oppose defendants' motion. We have jurisdiction pursuant to 28 U.S.C. § 1332.

II. Standard of Review

A defendant moving to dismiss under Fed. R. Civ. P. 12(b)(6) bears the burden of proving that the plaintiff has failed to state a claim for relief. See Fed. R. Civ. P. 12(b)(6) ; see also , e.g. , Hedges v. United States , 404 F.3d 744, 750 (3d Cir.2005). To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter, accepted as true, to state a facially plausible claim to relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

As the Supreme Court stresses, "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 ... do not suffice." Id. Courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

In the wake of Twombly and Iqbal , our Court of Appeals laid out a two-part test to apply when considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) :

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'

Fowler v. UPMC Shadyside , 578 F.3d 203, 210–11 (3d Cir.2009) (internal citations omitted). In deciding a motion to dismiss, we may consider "the allegations contained in the complaint, exhibits attached to the complaint and matters of public record," and any "undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefits Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir.1993).

We recite the facts as they appear in the complaint.

III. Factual Background

Megan and Samuel Giampietro, who are married, live in Cheltenham, Pennsylvania. Compl. at ¶ 1. Viator, Inc. and TripAdvisor LLC "are corporations engaged in the business of providing travel related services and tours through their websites which also include reviews of travel related destinations and tours." Id. at ¶ 5. The Giampietros allege that the defendants' "business model is an internet based travel services company whose services are sold to customers wherein the point of sale is at the customer's location," and that the defendants "provided side tours in various locations throughout the world, including the placement of its customers with tour operators." Id. at ¶¶ 9-10.

The Giampietros booked a vacation to Italy through Viator. Id. at ¶ 15. At Viator's "suggestion/recommendation," they also booked the "Chianti Small Group Vespa Tour." Id. at ¶ 16. Viator's advertisement for this tour stated that it would have no more than ten people, involve travel on quiet and scenic roads, and begin with a thirty minute orientation session on how to safely ride a Vespa. Id. at ¶¶ 20-21.

On June 30, 2013, while on their vacation, the Giampietros began their Vespa tour in Florence, Italy. Id. at ¶¶ 15-17. Florencetown Vespa ran the tour. Id. at ¶ 31. The tour was not as advertised—there were in fact about twenty people, travel was mainly on busy roads with heavy two-way traffic and no shoulders, and the orientation lasted only ten minutes. Id. at ¶¶ 22-24. While on the tour, Megan's Vespa stalled twice, but the tour conductor told her that her Vespa "would be okay" and that she should continue to use it. Id. at ¶ 17. When Megan's Vespa stalled a third time, she fell and sustained serious injuries, including third degree burns, a loss of consciousness, injuries to her lips and eyes, and a concussion. Id. at ¶¶ 18, 26, 28.

On August 8, 2014, about one year after Megan's accident, TripAdvisor purchased Viator. Id. at ¶ 4. The Giampietros allege that this purchase subjects TripAdvisor to "successor liability." Id.

The Giampietros also allege that Viator and, by dint of successor liability, TripAdvisor, are liable for Megan's injuries, and Samuel's concomitant loss of consortium, because they failed to use reasonable care in selecting local tour providers; failed to warn the Giampietros of the unsafe conditions and dangers of the Vespa tour; failed to select a competent tour provider; negligently misrepresented the tour; failed to provide proper control and supervision of the tour; negligently selected Florencetown Vespa as the tour provider; failed to investigate the operations and conduct of the tour provider; and continued to place customers with Florencetown Vespa operators even after learning of problems with its scooters and that the tours were conducted on heavily trafficked roads. Id. at ¶ 31.

IV. Discussion

In their motion to dismiss, TripAdvisor and Viator contend that TripAdvisor is not a proper party, that neither TripAdvisor nor Viator owed Megan Giampietro a direct duty of care, that Florencetown Vespa was neither defendant's agent, that Samuel Giampietro has no loss of consortium claim, and that the Giampietros have failed to join two indispensable parties. We consider these contentions in turn.

A. Whether TripAdvisor Is A Proper Party

TripAdvisor argues that it had no association with Viator until it acquired its co-defendant on August 8, 2014—more than a year after Megan Giampietro's June 30, 2013 accident. Mot. at 5. As a result, TripAdvisor contends that it could only be sued under a theory of successor liability based on its purchase of Viator, but that none of the specific circumstances that would impose such liability are alleged in the complaint. Id. at 6-7. The Giampietros respond that without any discovery, they cannot adequately respond to TripAdvisor's claim that it should be dismissed because in some circumstances, the purchaser of a corporation may be liable under a theory of successor liability. Pl. Resp. at 6.

Under Pennsylvania law, a purchaser of a corporation is not responsible for the debts and liabilities of the company it buys simply because of the acquisition. Continental Ins. Co. v. Schneider, Inc. , 582 Pa. 591, 873 A.2d 1286, 1291 (2005). This general rule of non-liability can be overcome by demonstrating that (1) the purchaser expressly or implicitly agreed to assume liability, (2) the transaction amounted to a consolidation or merger, (3) the purchasing corporation was merely a continuation of the selling corporation, (4) the transaction was fraudulently entered into in order to escape liability, or (5) the transfer was made without adequate consideration and no provisions were made for the creditors of the selling corporation. Id.

In their complaint, the Giampietros allege that TripAdvisor is liable to them under a theory of successor liability because it purchased Viator's interests. Compl. at ¶ 3. While the Giampietros do not make any more specific factual allegations as to the legal mechanics of TripAdvisor's acquisition of Viator, that is not fatal to their claim against TripAdvisor at this procedural juncture. The factual allegation of TripAdvisor's purchase of Viator states a facially plausible claim to relief against TripAdvisor and we will therefore deny TripAdvisor's motion to dismiss based upon it being an improper party.

B. Whether Defendants Owed Megan Giampietro A Direct Duty Of Care

TripAdvisor and Viator argue that they are not travel agents and therefore owed no duty of care to Megan Giampietro. Mot. at 8. Defendants claim that they "are websites that aggregate user recommendations and serve as an online information resource and ticket agent for travelers ... to research, plan and execute their own itineraries." Id. The Giampietros argue that Viator advertises itself as a travel agency, Viator referred to the Vespa tour the Giampietros booked as "their product," and both defendants "hold themselves out as the world's leading resource for researching, finding and booking the best travel experiences worldwide." Pl. Resp. at 7.

Pennsylvania law imposes some duty of care on travel agents, which may include selecting appropriate travel providers and conducting reasonable investigations of the travel providers they book. Lyall v. Airtran Airlines, Inc. , 109 F.Supp.2d 365, 370 (E.D.Pa.2000) (discussing cases). But TripAdvisor and Viator protest that Megan Giampietro "cannot show that either Defendant took any affirmative action to directly assist in making their travel arrangements thereby assuming Plaintiffs' care." Mot. at 8-9.

In their complaint, the Giampietros aver that TripAdvisor and Viator "are corporations engaged in the business of providing travel related services and tours through their websites which also include reviews of travel related destinations and tours." Compl. at ¶ 5. The complaint characterizes defendants as owning and operating "a travel and...