District of New Jersey

English

bepress Legal Repository

MUCCIARIELLO v. VIATOR

Santa Clara University School of Law

RAJ GADHOK, ESQ. (RG 4505)  MANDELBAUM SALSBURG, P.C. 3 Becker Farm Road, Suite 105 Roseland, New Jersey 07068 Tel: 973-736-4600  Fax: 973-325-7467 Email: rgadhok@lawfirm.ms Attorneys for Plaintiff, Kari Mucciariello  IN THE UNITED STATES DISTRICT COURT  DISTRICT OF NEW JERSEY   KARI MUCCIARIELLO,     Plaintiff,   v.  VIATOR, INC., TRIPADVISOR LLC, JOHN DOES 1-10 and ABC COMPANY 1-10    Defendants.   Civil Action No.    COMPLAINT AND  JURY DEMAND   Plaintiff, Kari Mucciariello, by way of Complaint against Defendants, says: PARTIES  1. Plaintiff, Kari Mucciariello, is a citizen of the State of New Jersey residing at 65 Sassafras Court, North Brunswick, New Jersey 08902. 2. Defendant, Viator, Inc. is a corporation with a principal place of business located at 360 3rd Street, #400, San Francisco, California 94107. 3. Defendant, Tripadvisor LLC, a corporation with a principal place of business of 141 Needham Street, Newton, Massachusetts 02464. 4. Defendant Tripadvisor LLC, acquired Viator, Inc., in 2014.  The website, “viator.com” indicates that Viator is “A TripAdvisor® Company.”  Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 1 of 8 PageID: 1    1363539 JURISDICTION AND VENUE 5. The Court has original jurisdiction over this action under 28 U.S.C. 1332 in that the amount of the controversy exceeds seventy-five thousand dollars ($75,000.00), exclusive of interest and costs, and Plaintiff is a citizen of a state which is different from the states where the defendants are incorporated and maintain their principal places of business. 6. Venue is proper in this district because Plaintiff completed her booking while she was in New Jersey and/or all of the defendants are subject to personal jurisdiction in this District. BACKGROUND 7. At all relevant times, Defendants operated a travel and tour service. 8. Defendants sell “tours and activities through the award-winning Viator.com website.” 9. The website describes Viator as “passionate travelers” who “research and book the world’s best travel experiences.” 10. Viator advertises that it has “curated the largest and most diverse selection of worldwide tours and activities . . . all provided by local tour operators we’ve pre-screened for quality, value and service.”    11. On April 24, 2017, Plaintiff booked a tour known as an “ATV Seashore Combo: Adventure to Mezcalitos plus Optional Snorkeling at Playa Uvas” (the “ATV Tour”) through the website “viator.com.” 12. The website is owned and operated by the defendants. 13. The ATV Tour itself was run by non-party “Playa Uvas,” which is located in Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 2 of 8 PageID: 2    1363539 Mexico. 14. The website indicated that the ATV Tour would be conducted in a small group, with personal attention from Playa Uvas guides, and that it would take place on a scenic beach. 15. The Viator tour information section indicated that, “Our Product Managers select only the most experienced and reliable operators in each destination, removing the guesswork for you, and ensuring your peace of mind.” 16. Thereafter, Defendants booked the ATV Tour on behalf of Plaintiff who relied upon the representations of Defendants. 17. On or about May 3, 2017, Plaintiff participated in the ATV Tour. 18. The ATV Tour was conducted with a large group, not a small group as promised. 19. There was no personal attention or instruction from the Playa Uvas guides as promised. 20. The tour guides were very much in a rush to complete the tour and took off far ahead of the group which included Plaintiff – a participant with little to no prior experience -- in an attempt to “speed up” the tour participants. 21. Rather than riding through a scenic and level beach, the guides took Plaintiff over dangerous, treacherous and uneven terrain. 22. As a result of the aforementioned tour conditions, Plaintiff was violently thrown from the ATV when it tipped over on uneven terrain. 23. As a result of Plaintiff’s fall, she has sustained a serious and permanent injuries to her wrist which includes loss of function, as well as severe and continuing pain and suffering.  Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 3 of 8 PageID: 3    1363539 FIRST COUNT (Breach of Fiduciary Duty)  24. Plaintiff repeats the allegations as though fully set forth herein. 25. Defendants owed a fiduciary duty to Plaintiff to select safe and reliable tour operators which they recommended to Plaintiff. 26. Defendants owed Plaintiff a duty to possess reasonable knowledge of the types of carriers, lines and accommodations that they selected for Plaintiff as a novice, and all significant attendant matters. 27. Defendants failed to exercise the requisite skill in selecting the ATV Tour and accommodations that they booked for Plaintiff. 28. As a result of their failure to exercise the requisite skill, Defendants selected an ATV Tour that was unsafe and inappropriate for Plaintiff. 29. Defendants breached their duties of care to Plaintiff by failing to use reasonable care in selecting a safe tour operator. 30. As a direct and proximate result of Defendants’ breach of its duties of care to Plaintiff, she participated in an unsafe ATV Tour wherein she sustained severe and permanent personal injuries. WHEREFORE, Plaintiff Kari Mucciariello demands Judgment against Defendants for compensatory damages, incidental damages, consequential damages, pain and suffering, punitive and/or treble damages, costs of suit, attorneys’ fees, pre- and post-judgment interest, and such other and further relief as the Court deems fair and just.   Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 4 of 8 PageID: 4    1363539 SECOND COUNT        (Negligence) 31. Plaintiff repeats the allegations as though fully set forth herein. 32. The injuries sustained by Plaintiff were reasonably foreseeable at the time Defendants selected the ATV Tour for Plaintiff. 33. Defendants owed a duty of care in the selection of tour operators, as well as their representations regarding the vetting of tour operators. 34. Defendants breached their duty of care by failing to appropriately and reasonably vet the ATV Tour operator in question. 35. As a direct and proximate result of Defendants’ breach of its duties of care to Plaintiff, she participated in an unsafe and inappropriate ATV Tour wherein she sustained severe and permanent personal injuries. WHEREFORE, Plaintiff Kari Mucciariello demands Judgment against Defendants for compensatory damages, incidental damages, consequential damages, pain and suffering, punitive and/or treble damages, costs of suit, attorneys’ fees, pre- and post-judgment interest, and such other and further relief as the Court deems fair and just. THIRD COUNT (Consumer Fraud Act, N.J.S.A. 56:8-1, et seq.) 36. Plaintiff repeats the allegations as though fully set forth herein. 37. Defendants intended that consumers like Plaintiff rely on the omissions and misrepresentations set forth herein in order to sell its services. 38. The sales acts, advertisements and practices alleged by Defendants in connection with services actually provided constituted an unconscionable commercial practice in violation Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 5 of 8 PageID: 5    1363539 of the New Jersey Consumer Fraud Act insofar as the statements were false or had the capacity to mislead the average consumer. 39. As a result of the violation of the New Jersey Consumer Fraud Act, Plaintiff was caused to suffer an ascertainable loss. 40. As a result of the violation of the New Jersey Consumer Fraud Act, Plaintiff was caused to sustain significant monetary damages, personal injuries, attorneys’ fees, as well as other damages. WHEREFORE, Plaintiff Kari Mucciariello demands Judgment against Defendants for compensatory damages, incidental damages, consequential damages, pain and suffering, punitive and/or treble damages, costs of suit, attorneys’ fees, pre- and post-judgment interest, and such other and further relief as the Court deems fair and just. DEMAND FOR TRIAL BY JURY   Plaintiff hereby demands a trial by jury of all issues so triable as a matter of right. MANDELBAUM SALSBURG Attorneys for Plaintiff, Kari Mucciariello  /s/ Raj Gadhok ________________________________       RAJ GADHOK, ESQ. (RG 4505)        MANDELBAUM SALSBURG, P.C.       3 Becker Farm Road, Suite 105       Roseland, New Jersey 07068       Tel: 973-736-4600        Fax: 973-325-7467       Email: rgadhok@lawfirm.ms  DATED:  September 28, 2018     Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 6 of 8 PageID: 6    1363539 CERTIFICATION PURSUANT TO L. CIV. R. 11.2 In accordance with Local Civil Rule 11.2, I hereby certify that the within matter is not the subject of any pending or contemplated court, arbitration or administrative proceeding, and that there are no other parties who should be joined in this action at this time.  MANDELBAUM SALSBURG Attorneys for Plaintiff, Kari Mucciariello  /s/ Raj Gadhok ________________________________       RAJ GADHOK, ESQ. (RG 4505)        MANDELBAUM SALSBURG, P.C.       3 Becker Farm Road, Suite 105       Roseland, New Jersey 07068       Tel: 973-736-4600        Fax: 973-325-7467       Email: rgadhok@lawfirm.ms  DATED:  September 28, 2018           Case 3:18-cv-14444   Document 1   Filed 09/28/18   Page 7 of 8 PageID: 7JS 44   (Rev. 06/17)                                     CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law,  except asprovided by local rules of court.  This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet.   (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)I. (a) PLAINTIFFS DEFENDANTS(b)   County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.               (c)   Attorneys (Firm Name, Address, and Telephone Number)  Attorneys (If Known)II.  BASIS OF JURISDICTION (Place an “X” in One Box Only) III.  CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only)                                                     and One Box for Defendant)  1   U.S. Government  3  Federal Question                                                    PTF    DEF                                                       PTF    DEFPlaintiff (U.S. Government Not a Party) Citizen of This State  1   1 Incorporated or Principal Place  4  4    of Business In This State 2   U.S. Government  4  Diversity Citizen of Another State  2   2 Incorporated and Principal Place  5  5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another StateCitizen or Subject of a  3   3 Foreign Nation  6  6    Foreign CountryIV.  NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance      PERSONAL INJURY       PERSONAL INJURY  625 Drug Related Seizure  422 Appeal 28 USC 158  375 False Claims Act 120 Marine  310 Airplane  365 Personal Injury  -   of Property 21 USC 881  423 Withdrawal  376 Qui Tam (31 USC  130 Miller Act  315 Airplane Product   Product Liability  690 Other   28 USC 157   3729(a)) 140 Negotiable Instrument   Liability  367 Health Care/  400 State Reapportionment 150 Recovery of Overpayment  320 Assault, Libel &  Pharmaceutical PROPERTY RIGHTS  410 Antitrust & Enforcement of Judgment   Slander  Personal Injury  820 Copyrights  430 Banks and Banking 151 Medicare Act  330 Federal Employers’  Product Liability  830 Patent  450 Commerce 152 Recovery of Defaulted   Liability  368 Asbestos Personal  835 Patent - Abbreviated  460 Deportation Student Loans  340 Marine   Injury Product        New Drug Application  470 Racketeer Influenced and (Excludes Veterans)  345 Marine Product   Liability  840 Trademark  Corrupt Organizations 153 Recovery of Overpayment   Liability   PERSONAL PROPERTY LABOR SOCIAL SECURITY  480 Consumer Credit of Veteran’s Benefits  350 Motor Vehicle  370 Other Fraud  710 Fair Labor Standards  861 HIA (1395ff)  490 Cable/Sat TV 160 Stockholders’ Suits  355 Motor Vehicle  371 Truth in Lending   Act  862 Black Lung (923)  850 Securities/Commodities/ 190 Other Contract  Product Liability  380 Other Personal  720 Labor/Management  863 DIWC/DIWW (405(g))   Exchange 195 Contract Product Liability  360 Other Personal  Property Damage   Relations  864 SSID Title XVI  890 Other Statutory Actions 196 Franchise  Injury  385 Property Damage  740 Railway Labor Act  865 RSI (405(g))  891 Agricultural Acts 362 Personal Injury -  Product Liability  751 Family and Medical  893 Environmental Matters Medical Malpractice   Leave Act  895 Freedom of Information REAL PROPERTY    CIVIL RIGHTS   PRISONER PETITIONS  790 Other Labor Litigation FEDERAL TAX SUITS   Act 210 Land Condemnation  440 Other Civil Rights Habeas Corpus:  791 Employee Retirement  870 Taxes (U.S. Plaintiff  896 Arbitration 220 Foreclosure  441 Voting  463 Alien Detainee  Income Security Act   or Defendant)  899 Administrative Procedure 230 Rent Lease & Ejectment  442 Employment  510 Motions to Vacate  871 IRS—Third Party  Act/Review or Appeal of 240 Torts to Land  443 Housing/  Sentence   26 USC 7609  Agency Decision 245 Tort Product Liability  Accommodations  530 General  950 Constitutionality of 290 All Other Real Property  445 Amer. w/Disabilities -  535 Death Penalty IMMIGRATION  State Statutes Employment Other:  462 Naturalization Application 446 Amer. w/Disabilities -  540 Mandamus & Other  465 Other Immigration Other  550 Civil Rights        Actions 448 Education  555 Prison Condition 560 Civil Detainee - Conditions of  ConfinementV.  ORIGIN (Place an “X” in One Box Only) 1 OriginalProceeding 2 Removed fromState Court  3 Remanded fromAppellate Court 4 Reinstated orReopened  5 Transferred fromAnother District(specify)  6 MultidistrictLitigation -Transfer 8  Multidistrict    Litigation -            Direct FileVI.  CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:VII.  REQUESTED IN         COMPLAINT: CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND:  Yes NoVIII.  RELATED CASE(S)          IF ANY (See instructions): JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORDFOR OFFICE USE ONLYRECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGEKARI MUCCIARIELLOMIDDLESEXRaj Gadhok, Esq., Mandelbaum Salsburg, P.C.3 Becker Farm Road, Suite 105, Roseland, NJ 07068Phone No. (973) 736-4600VIATOR, INC., TRIPADVISOR LLC, JOHNDOES 1-10, and ABC COMPANY 1-1028 U.S.C 1332Plaintiff injured on motor vehicle while on a tour booked by Defendants.09/28/2018 /s/ Raj GadhokCase 3:18-cv-14444   Document 1   Filed 09/28/18   Page 8 of 8 PageID: 8

https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2819&amp;context=historical

MUCCIARIELLO v. VIATOR

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Santa Clara University School of Law