                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-3103
                                      _____________

                                  JAMES T. GENGO,
                Individually and on behalf of all others similarly situated,

                                         Appellant

                                             v.

                        JETS STADIUM DEVELOPMENT LLC;
                               NEW YORK JETS LLC

                                      ____________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                          (District Court No. 2:18-cv-08012)
                        District Judge: Hon. Stanley R. Chesler

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                    April 2, 2019

           Before: CHAGARES, HARDIMAN, and SILER, JR,* Circuit Judges

                             (Opinion filed: August 29, 2019)

                                      ____________

                                        OPINION+
                                      ____________

       *
       The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Court of
Appeals for the Sixth Circuit, sitting by designation.
       +
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SILER, Circuit Judge.

       James T. Gengo appeals the district court’s order granting a motion to dismiss

filed by Jets Stadium Development LLC and New York Jets LLC. The order dismissed

the remaining two counts of Gengo’s class action complaint. We will AFFIRM the

order of the district court.

                                             I.

       We write for the parties and relate only the necessary facts. At issue in this case is

a personal seat license (“PSL”) agreement between Gengo and defendants. The

agreement both allows and obligates Gengo to buy season tickets to football games

played by the New York Jets in MetLife Stadium. Gengo paid a fee for the agreement

because, at the time, it was the only way to purchase season tickets in Section 245a of the

Stadium. Defendants now sell season tickets in the Section to purchasers who have not

entered into a seat licensing agreement (i.e., have not paid the fee). Gengo argues this

decision by defendants has rendered his agreement “valueless,” and constitutes a breach

of the covenant of good faith and fair dealing implied in the agreement and is a violation

of the New Jersey Consumer Fraud Act. The district court found that the complaint filed

by Gengo did not state a plausible ground for relief under either theory and dismissed the

action. See Gengo v. Jets Stadium Dev., LLC, 2018 WL 4144686 (D.N.J. Aug. 30, 2018).

                                             II.

       This court reviews de novo a district court’s grant of a motion to dismiss for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Foglia v. Renal

Ventures Management, LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014).

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                                             III.

       Gengo’s claim under the implied covenant of good faith and fair dealing fails

because he has received the fruits of his contract. See Brunswick Hills Racquet Club, Inc.

v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387, 396 (N.J. 2005) (Gengo “must provide

evidence sufficient to support a conclusion that the party alleged to have acted in bad

faith has engaged in some conduct that denied the benefit of the bargain originally

intended by the parties”) (quoting 23 Williston on Contracts § 63:22 (4th ed. 1993 &

Nov. 2018 update)). By signing the agreement, Gengo represented that he “acquir[ed]

this PSL solely for the right to purchase tickets to Jets Home Games played in the

Stadium.” The agreement “relate[d] to certain seats in the Stadium,” and gave Gengo

“the right and the obligation to purchase admission tickets for the Seats . . . .” Nothing in

the complaint suggests that Gengo has lost the exclusive right to purchase season tickets

for these seats, much less that it was defendants’ actions that denied him that right. That

defendants might now sell adjacent seats to members of the general public does not

implicate Gengo’s rights and certainly does not strip him of the benefit for which he

bargained.

       In his briefing, Gengo references the “now valueless PSLs” as “unsellable”

because defendants are currently giving away for free what cost him $8,000. This

argument is problematic for two reasons. First, it is simply incorrect: there is no

allegation that the seats for which Gengo contracted are available to the general public.

Second, this argument at most smacks of a bad deal, not bad faith. As part of the

contract, Gengo represented that he was not acquiring the license as an investment and

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had no expectation of profit; he was acquiring it without a view to resell or distribute it;

and he acknowledged that defendants did “not represent[] and [did] not guarantee that

there is or ever will be a market for the resale of this PSL.” Instead, Gengo agreed that

he was acquiring the license “solely for the right to purchase tickets” for his selected

seats.

         Gengo’s claim under the New Jersey Consumer Fraud Act fails for similar

reasons. He needed to plead an unlawful practice and, regardless of the type of unlawful

practice alleged, “capacity to mislead is the prime ingredient[.]” Cox v. Sears Roebuck &

Co., 647 A.2d 454, 462 (N.J. 1994). Gengo specifically disclaims that a

misrepresentation or omission regarding exclusivity or ticket policies forms the basis of

his NJFCA claim. But simply changing the terms on which defendants sell other seats in

the stadium is not misleading: the plain language of the agreement stated that Gengo

entered it solely for the right to purchase season tickets for his selected seats and that the

agreement was limited to this purpose. The agreement, therefore, belies that a licensee

could have been misled into thinking it dictated how defendants could sell all other seats

in his section. See Fenwick v. Kay Am. Jeep, Inc., 371 A.2d 13, 16 (N.J. 1977) (“The

capacity to mislead is the prime ingredient of deception or an unconscionable commercial

practice”).

         Further, Gengo has not shown ascertainable loss as required by the NJCFA. It is

true that ascertainable loss “includes more than a monetary loss and may occur when a

consumer receives less than what was promised.” Elias v. Ungar’s Food Products, Inc.,

252 F.R.D. 233, 249 (D.N.J. 2008) (internal quotations and citations omitted). But here,

                                               4
Gengo has made no allegation that he is not receiving what his agreement explicitly states

is its sole benefit: the ability to buy season tickets for his seats. By the plain language of

the agreement, he has received, and continues to receive, what was promised.

       We will AFFIRM.




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