Kaufman v. Sirius XM Radio, Inc., 474 F. App'x 5

Kaufman (Nevada) and LaLuna (New York) sued Sirius XM for deceptive acts under New York GBL § 349 and lack of diversity.
District court dismissed GBL § 349 claims for non-New York plaintiffs and lack of subject matter jurisdiction after 12(b)(6) review.
Goshen v. Mutual Life Ins. Co. of N.Y. held deception must occur in New York for § 349 liability.
Plaintiffs alleged the transaction occurred in New York and that NY-based management handled the fee, but those facts were deemed insufficient.
Court analyzed whether the alleged New York invoicing and retention of an $2.00 fee could constitute a qualifying intrastate transaction.
The court affirmed the dismissal and held no diversity jurisdiction existed; district court’s denial of leave to amend to reinstate unjust enrichment claim was not an abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether non-New York plaintiffs state a GBL § 349 claim	Kaufman contends Goshen allows NY-situs deception claims for NY-based schemes.	Sirius argues no intrastate transaction occurred in New York for non-NY plaintiffs.	GBL § 349 claim dismissed; no viable intrastate transaction by non-NY plaintiffs.
Whether district court abused its discretion denying leave to amend regarding unjust enrichment	Plaintiffs could preserve a claim via unjust enrichment to restore diversity.	Court may deny leave to amend if no compelling reason shown.	No abuse; leave to amend denied.

Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314 (N.Y. 2002) (deception must occur in New York for § 349 liability)
Scott v. Bell Atl. Corp., 282 A.D.2d 180 (N.Y. App. Div. 2001) (non-New York plaintiffs failed to allege deception occurred in New York)
Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660 (2d Cir. 1996) (unjust enrichment pleading may be alternative to breach)
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007) (district court may deny leave to amend; discretion)