Federal Judge Dismisses Lawsuit Against Ambit Energy as Unsupported August 15, 2012 Email This Story Copyright 2010-12 Energy Choice Matters
A federal judge has dismissed a suit filed against Ambit Energy, and several of its principals, finding that claims made by BH Seven, LLC (and in an earlier version of the complaint, by BH Seven, LLC's president, Nicole Gubin) are unsupported and fatally deficient of facts.
The original complaint, reported by Matters last year, made various allegations with respect to multi-level marketing that, if ruled upon, would have had market-wide implications. However, after the court identified "numerous pleading infirmities" in the original complaint, several amended complaints were filed, and the specific causes of action relating to multi-level marketing, and allegations of fraud and other violations as a result of such business structure, were withdrawn in the amended complaints filed by complainants.
As such, the most recent amended complaint, which was dismissed by a judge for the U.S. District Court for the Eastern District, related only to prosaic compensation and contract issues.
With regard to such issues, the court found that the plaintiff failed to plead sufficient facts establishing the formation of a contract between BH Seven and Ambit. "The complaint suffers from several infirmities in this regard. First, plaintiff fails to plausibly state how BH Seven entered into an agreement with either Ambit or the individual defendants ... According to plaintiff's two prior complaints as well as its articles of incorporation, however, Gubin did not form BH Seven until October 18, 2010, more than three years after the date of the alleged agreement," the court found.
The court further found that BH Seven failed to specify its own performance under the alleged oral agreement, citing precedent that in order to state a claim of breach of contract, the complaint must allege: (i) the formation of a contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform; and (iv) damages.
The court, however, stopped short of dismissing the complaint with prejudice. "[T]he court, in its discretion, permits plaintiff one final opportunity to present a complaint that establishes subject matter and personal jurisdiction, and that alleges specific facts and circumstances, which if believed by the court, entitle plaintiff to relief on its substantive causes of action. When constructing this final pleading, plaintiff is advised to carefully consider the viability of some of its claims and against whom those claims are asserted," the court said.
However, recognizing the prejudice that defendants may suffer as a result of responding to yet another complaint, "the court will condition plaintiff's filing of a fourth and final complaint upon payment, for which plaintiff and plaintiffs counsel are jointly and severally liable, of reasonable attorney's fees and costs incurred by defendants in moving to dismiss the Second Amended Complaint."
If the plaintiff does not file a third amended complaint within thirty days, the complaint will be automatically dismissed with prejudice in its entirety.
The case is Case 1:11-cv-02483-ARR-RER, BH Seven LLC v. Ambit Energy LP et al., no. 11-2483.