The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiffs JFK Health & Welfare Fund, Inc. ("JFK Health") and Raymond Ciccolilli ("Ciccolilli") bring this diversity action against defendants Analie Tours, Inc. ("Analie Tours") and Maite Granda ("Granda") alleging state common law claims of fraud, breach of contract, negligence, breach of fiduciary duty, as well as deceptive trade and travel practices in violation of the New York Truth In Travel Act, General Business Law ("N.Y. Gen. Bus. L.") §§ 158, 159, and 349. Defendants move to dismiss the complaint on the grounds that, inter alia, the Court lacks subject matter jurisdiction or, in the alternative, JFK Health lacks associational standing to sue on behalf of its members. For the reasons set forth below, defendants' motion to dismiss is granted.
The following facts are alleged in the complaint and accepted as true for purposes of this motion:
JFK Health is a New York State nonprofit corporation located at JFK airport in Queens, New York. At all pertinent times, Ciccolilli was its president. JFK Health organizes activities for its members, who are employees or retired employees of JFK Airport. Analie Tours is a general travel and tourist agency based in Miami, Florida. At all pertinent times, Granda was an officer and/or director of Analie Tours. Analie Tours specializes in organizing group vacations to South America. In April, 2005, having previously had a positive experience using defendants' services, plaintiffs hired defendants to organize a trip to Buenos Aires, Argentina, including nonstop group airfare and hotel accommodations, in exchange for $910 per each of 47 travelers. Defendants charged plaintiffs $43,680. Granda accepted money on behalf of Analie Tours and was responsible for all communications with plaintiffs. The 47 travelers included members of JFK Health and their guests.
On November 9, 2006, plaintiffs arrived at New York's JFK International Airport to learn that, contrary to defendants' representations, they lacked a group airline reservation on a non-stop flight. Instead, plaintiffs were separated from each other, some placed on flights making a pre-destination stop. Further, plaintiffs arrived in Buenos Aires without hotel accommodations, forcing Ciccollili to charge $10,830.15 to his credit card to obtain lodging. Rather than stay together, plaintiffs were forced to stay in various hotels.Ten members were without luggage for two days.
Plaintiffs seek damages in the amount of $78,010.16, comprised of the $43,680 paid to defendants, the $10,830.16 Ciccollili paid for hotel rooms, and $23,500 in civil penalties under N.Y. Gen. Bus. L. §§ 158, 159. Plaintiffs also seek punitive damages "in an amount to be determined."
On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). The court's function is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal quotation marks, citations, and alterations omitted). Indeed, a plaintiff must assert "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. This "plausibility standard" is a flexible one, "oblig[ing] a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007).
II. Subject Matter Jurisdiction
Because less than $75,000 is in controversy, this court lacks subject matter jurisdiction over the instant dispute. See 28 U.S.C. § 1332(a)(2) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . (2) citizens of a State and citizens or subjects of a foreign state"). The complaint asserts compensatory damages in the amount of $78,010.16 plus "punitive damages in an amount to be determined." Although courts "recognize a rebuttable presumption that the face of the complaint is a good faith representation of the actual amount in controversy," Scherer v. Equitable Life Assurance Soc'y of the U.S., 347 F.3d 394, 397 (2d Cir. 2003) (internal quotation omitted), here, plaintiff's complaint, on its face, reveals several problems.
First, it is clear from the complaint itself that plaintiffs cannot recover all of the $43,680 paid to defendants for airfare and hotel accommodations because defendants did partially perform: plaintiffs utilized defendants' flight arrangements notwithstanding that such arrangements failed to comport with the parties' agreement.
Second, plaintiffs cannot proceed under N.Y. Gen. Bus. L. § 158 because New York's Truth in Travel Act does not provide a private right of action. The Act explicitly provides that "[t]he district attorney of any county may bring an action in the name of the people of the state to restrain or prevent any violation of this article or any continuance of any such violation." N.Y. Gen. Bus. L. § 159(3). Plaintiffs do not argue that a private right should be implied, nor could they, as there is no indication of a legislative intent to create such a right. See Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 13 (1981) ("The key to the [implied right] inquiry [under Cort v. Ash, 422 U.S. 66 (1975)] is the intent of the Legislature."); Watson v. City of New York, 92 F.3d 31, 37 n. 8 (2d Cir. 1996) (Cort applies to determination of an ...