12-4184-cv
Derbaremdiker v. Applebee's Int'l, Inc.


                          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
"SUMMARY 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 21st day of May, two thousand thirteen.

PRESENT:      DENNY CHIN,
              RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
              LAURA TAYLOR SWAIN,
                        District Judge.*

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ALEX DERBAREMDIKER,
                             Plaintiff-Appellant,

                      -v-                                    12-4184-cv

APPLEBEE'S INTERNATIONAL, INC.,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                  TODD C. BANK, Law Office of Todd
                                          C. Bank, Kew Gardens, New York.

FOR DEFENDANT-APPELLEE:                   MICHAEL KENDALL (Kevin M. Bolan
                                          and Karen Eisenstadt, on the
                                          brief), McDermott Will & Emery
                                          LLP, Boston, Massachusetts.

       *
          The Honorable Laura Taylor Swain, United States
District Judge for the Southern District of New York, sitting by
designation.
            Appeal from the United States District Court for the

Eastern District of New York (Matsumoto, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

            Plaintiff-appellant Alex Derbaremdiker appeals from

the district court's October 2, 2012 judgment, entered pursuant

to its September 26, 2012 memorandum and order dismissing the

class action complaint for failure to state a claim.     See Fed.

R. Civ. P. 12(b)(6).    In his complaint, Derbaremdiker alleges

that defendant-appellee Applebee's International, Inc.

("Applebee's") engaged in deceptive conduct in connection with

an online customer satisfaction survey and sweepstakes.     We

assume the parties' familiarity with the facts, procedural

history, and issues on appeal.

            We review a dismissal under Rule 12(b)(6) de novo,

accepting the complaint's allegations as true and drawing all

reasonable inferences in favor of the plaintiff.    See Rothstein

v. UBS AG, 708 F.3d 82, 90 (2d Cir. 2013).    After an independent

review of the record, we affirm for substantially the reasons

set forth by the district court in its thorough twenty-three-

page opinion.



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          On appeal, Derbaremdiker argues that the district

court improperly went beyond the four corners of the complaint

to consider the sweepstakes' official rules, which were located

on a website referenced in the receipt.     This argument is waived

because, in the proceedings below, Derbaremdiker expressly

agreed that the district court could properly consider these

rules.   Even if the argument were not waived, the complaint

refers to these rules and the district court properly deemed

them to be incorporated in the complaint.    See DiFolco v. MSNBC

Cable L.L.C., 622 F.3d 104, 112 (2d Cir. 2010).

          Notwithstanding Derbaremdiker's arguments to the

contrary, these rules do not contradict the statements on the

receipt, but rather clarify those statements to the extent they

were ambiguous regarding which prizes were available daily and

which companies participated in the sweepstakes.     Accordingly, a

reasonable person would not find the receipt "materially

misleading," Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940,

941 (2012), and "equity and good conscience" do not require that

Applebee's disgorge any "benefit" derived from Derbaremdiker's

response to the survey, Corsello v. Verizon N.Y., Inc., 18

N.Y.3d 777, 790 (2012).   Cf. Samuelson v. Union Carbide Corp.,

No. 85 Civ. 5373, 1986 WL 1442, at *2-3 (S.D.N.Y. Jan. 29, 1986)

(dismissing civil RICO and N.Y. Gen. Bus. L. § 349 claims
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alleging that contest terms on packaging were materially

misleading in part because "[t]he front of the . . . packages

referred to a description of the game and its rules with the

phrase '(SEE BACK)'" and those rules on the back removed any

ambiguity in the contest terms), aff'd, 792 F.2d 136 (2d Cir.

1986) (unpublished table decision).

         We have considered Derbaremdiker's remaining arguments

and find them to be without merit.    Accordingly, we AFFIRM the

judgment of the district court.

                             FOR THE COURT:
                             Catherine O'Hagan Wolfe, Clerk




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