16-4270
Doyle v. Mastercard International Incorporated

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
6th day of July, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         PIERRE N. LEVAL,
         REENA RAGGI,
              Circuit Judges,

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ROBERT DOYLE, individually and on behalf
of all others similarly situated,
         Plaintiff-Appellant,

             -v.-                                                  16-4270

MASTERCARD INTERNATIONAL INCORPORATED,
         Defendant-Appellee.

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FOR APPELLANT:                                 TODD C. BANK, Todd C. Bank,
                                               Attorney at Law, P.C., Kew
                                               Gardens, NY.



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FOR APPELLEE:                     CHRISTOPHER KARAGHEUZOFF
                                  (Jonathan Montcalm, on the
                                  brief), Dorsey & Whitney LLP,
                                  New York, NY.

     Appeal from a judgment of the United States District Court
for the Southern District of New York (Swain, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

     Robert Doyle appeals from a judgment of the United States
District Court for the Southern District of New York (Swain,
J.) dismissing his putative class action claims for breach of
contract, breach of the implied covenant of good faith and fair
dealing, and violation of the District of Columbia Consumer
Protection Procedures Act (“DCCPPA”), D.C. Code §§
28-3901-3913. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     Doyle’s amended complaint alleges that, from 2011 to 2015,
Mastercard International Incorporated (“Mastercard”)
advertised nationwide that it would donate one cent to a
charitable program called “Stand Up To Cancer” for each
Mastercard credit or debit card transaction of at least $10 in
a United States restaurant. (In 2011, there was no minimum.)
In 2012, 2014, and 2015, Mastercard added that it would make
a two-cent donation for certain contactless transactions.
Each year, the advertisements disclosed that the promotion
would start on a certain date and run until the earlier of: (1)
a specified end date; or (2) whenever Mastercard reached its
$4 million maximum donation.

     Doyle is a New Jersey resident who used his Mastercard
credit or debit card at restaurants in Florida and New Jersey
between 2011 and 2015. He alleges that by engaging in
qualifying transactions in response to Mastercard’s
advertisements, he (and others like him) formed a contract with
Mastercard, and that Mastercard breached by continuing to
advertise the “Stand Up To Cancer” promotion after it became
apparent that the $4 million maximum donation would be, or had

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been, met. He further alleges breach of the implied covenant
of good faith and fair dealing, and violation of the DCCPPA.

     The district court dismissed the complaint, ruling that
Doyle failed to state a claim for either breach of contract or
breach of the implied covenant of good faith and fair dealing,
and lacked standing to pursue either an individual or class
action under the DCCPA.

     We review de novo the grant of a motion to dismiss for
failure to state a claim, accepting all factual allegations as
true and drawing all reasonable inferences in favor of the
plaintiff. Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy
Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “The same
standards apply to dismissals for lack of standing pursuant to
Rule 12(b)(1) when, as here, the district court based its
decision solely on the allegations of the complaint and the
undisputed facts evidenced in the record.” Id. at 566-67.

     1. Doyle’s complaint acknowledges that “[t]he terms of
MasterCard’s advertisements [] were clear, definite, and
explicit.” App’x at 8. Specifically, for each qualifying
transaction, Mastercard agreed to make a donation to “Stand Up
To Cancer” until a scheduled end date arrived or the $4 million
maximum donation was reached. Doyle does not allege that
Mastercard violated these terms. Therefore, regardless of
when the advertisements appeared or how certain Mastercard was
that the maximum donation would be met, there was no breach of
contract under New York law (which the parties agree applies).
See Kraus v. Visa Int’l Serv. Ass’n, 304 A.D.2d 408, 408 (1st
Dep’t 2003) (affirming dismissal of breach of contract claims
because “plaintiff failed to allege the breach of any particular
contractual provision”).

     2. Doyle claims that Mastercard breached the implied
covenant of good faith and fair dealing. However, “New York
law . . . does not recognize a separate cause of action for breach
of the implied covenant of good faith and fair dealing when a
breach of contract claim, based upon the same facts, is also
pled.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d
73, 81 (2d Cir. 2002); see also ICD Holdings S.A. v. Frankel,
976 F. Supp. 234, 243-44 (S.D.N.Y. 1997) (“A claim for breach
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of the implied covenant will be dismissed as redundant where
the conduct allegedly violating the implied covenant is also
the predicate for breach of covenant of an express provision
of the underlying contract.” (internal quotation marks
omitted)). Doyle’s claim for breach of the implied covenant
was properly dismissed as duplicative of the claim for breach
of contract.

     3. Doyle argues that it was error to dismiss his putative
class claim under the DCCPPA prior to class certification. He
is mistaken. Because he does not claim to have personally
suffered an injury under that statute, he lacks standing to sue.
See Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must
allege and show that they personally have been injured, not that
injury has been suffered by other, unidentified members of the
class to which they belong and which they purport to
represent.”); see also Lewis v. Casey, 518 U.S. 343, 357 (1996)
(noting that Article III standing requirements are “no less true
with respect to class actions than with respect to other
suits”); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40
n.20 (1976) (“That a suit may be a class action, however, adds
nothing to the question of standing[.]”).

     Standing is generally a prerequisite to class
certification. Although there is a limited exception for cases
in which class certification is “logically antecedent” to the
determination of standing, see Ortiz v. Fibreboard Corp., 527
U.S. 815, 831 (1999), that exception does not apply here because
“resolution of class certification [would not] obviate[] the
need to decide issues of Article III standing,” Mahon v. Ticor
Title Ins. Co., 683 F.3d 59, 65 (2d Cir. 2012). Regardless of
whether a class is certified for purposes of a DCCPPA claim,
Doyle would lack standing to sue on its behalf because he alleges
no injury under that (or any other consumer protection) statute.
His alleged injury is based on an entirely separate -- and
meritless -- breach-of-contract theory. See Allee v. Medrano,
416 U.S. 802, 828-29 (1974) (Burger, C.J., concurring in the
result in part and dissenting in part) (“[I]t bears repeating
that a person cannot predicate standing on injury which he does
not share.”); Okla. Police Pension & Ret. Sys. v. U.S. Bank Nat’l
Ass’n, 986 F. Supp. 2d 412, 419 n.3 (S.D.N.Y. 2013) (explaining

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that logical antecedence “is inapplicable to [a] case involving
a challenge to the sole named plaintiff’s standing to bring a
claim under a separate cause of action which it itself does not
have standing to bring”).

     Accordingly, we hereby AFFIRM the judgment of the district
court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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