It all started with a $100 offer to end the case.
And now a man suing Live Nation Entertainment for surcharges he claimed were illegal under the Baltimore City Code is asking for the case be sent back to Baltimore City Circuit Court, while the ticketing agency wants the case dismissed.
Plaintiff Andre Bourgeois’ called Live Nation Entertainment Inc.’s offer to pay him $100 a “paltry offer” and a “pick off,” which is when putative class action defendants offer complete relief to plaintiffs in order to moot their claim and get the case dismissed.
“Instead of attacking the merits of this case, Defendants’ new approach is to assert that federal jurisdiction is lacking, and that dismissal is therefore appropriate,” Bourgeois’ stated in an April 17 memorandum.
Live Nation, Lyric Productions LLC and Monumental Ticketing Limited Partnership argue Bourgeois’ remaining claim was rendered moot by the $100 offer, even though it was rejected. They asked that the case be dismissed since it now lacked subject matter jurisdiction, according to court filings.
Bourgeois then fired back in an April 17 filing, saying that since there is no longer any subject matter jurisdiction, as Live Nation claims, the case should be remanded to circuit court, where it originated.
“Where a case is removed from state court, and subject matter jurisdiction is lacking ‘at any time,’ remand is required,” Bourgeois’ opinion stated.
Bourgeois claims a $12 service fee he paid for a $52 ticket to a Jackson Browne concert at the Lyric in 2009 violated a 1949 city law that caps ticket fees at 50 cents. Bourgeois bought the ticket from Ticketmaster, which merged with Live Nation in 2010.
These most recent motions come on the heels of a decision by U.S. District Court Judge Ellen L. Hollander last month to limit the amount of damages Bourgeois can seek in the case. Bourgeois can no longer seek punitive damages after Hollander dismissed claims of fraud, misrepresentation and federal racketeering, but said he can seek damages for “money had and received,” which are funds that he already paid Ticketmaster.
The Court of Appeals held in January 2013 that the fee cap law was still in effect after Hollander asked for the top court’s advice on the law. The state’s top court also found that Ticketmaster did not need a license to sell tickets in Baltimore if it is authorized to sell by a licensed exhibitor, like the Lyric.
The Baltimore City Council eliminated the 50-cent cap on ticket fees last March.
One of Bourgeois’ attorneys, Benjamin Carney of Gordon, Wolf & Carney Chtd. in Towson, declined to comment.
The Lyric’s attorney, Lawrence J. Quinn of Tydings & Rosenberg LLP in Baltimore, Live Nation’s attorney, Robert J. Mathias of DLA Piper US LLP in Baltimore, and Monumental Ticketing’s attorney Patrick J. Carome of Wilmer Cutler Pickering Hale and Dorr LLP in Washington, D.C., did not respond to requests for comment.
Ticketmaster sells Lyric tickets on its website and keeps a portion of the service fee for itself and sends the rest of the fee, including the original price of the ticket, back to the Lyric.
Bourgeois originally filed his lawsuit in November 2011 in Baltimore City Circuit Court. It was removed to federal court in Baltimore in January 2012 at the request of Live Nation.