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Polk v. Del Gatto Inc.

Offer of Judgment Needed to Accompany Payment Offer to Moot Contract Breach Action

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OPINION & ORDER Plaintiff Christopher Polk (“Polk”) brings this putative class action against Del Gatto, Inc. (“Del Gatto”), an online jewelry reseller, alleging that Del Gatto failed to pay him and other jewelry sellers for months after the payment date specified in the parties’ contract. Polk brings claims for (1) breach of contract; (2) deceptive and unfair trade practices in violation of New York General Business Law (“GBL”) §349; and (3) common law unjust enrichment. Pending now is Del Gatto’s motion to dismiss, on several grounds, Polk’s Complaint (“Compl.”) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). First, Del Gatto argues that its offers of payment to Polk mooted this case and eliminated this Court’s subject-matter jurisdiction. Second, Del Gatto argues that the Complaint does not state a breach of contract claim because its website’s Terms of Use disclaimed liability for delayed payments, because Polk lacks standing under and otherwise fails to plead a viable claim under GBL §349, and because Polk’s unjust enrichment claim is redundant.1 For the following reasons, the Court denies the motion to dismiss based on lack of subject-matter jurisdiction and as against Polk’s breach of contract claim, but grants it as to Polk’s GBL and unjust enrichment claims. I. Background A. Factual Background2 Del Gatto, a Delaware corporation with its principal place of business in New York City, owns a “consumer-to-consumer jewelry marketplace,” “I Do Now I Don’t” (IDNID), through which individuals can buy and sell jewelry, including engagement rings. Compl.

2, 14, 15, 19. Del Gatto itself acts as a clearinghouse, verifying the quality and authenticity of the goods sold through its platform and taking a cut of the proceeds of each sale. Id.

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