United States District Court, E.D. Pennsylvania
AMY SILVIS, on behalf of herself and all others similarly situated, Plaintiff,
AMBIT ENERGY, L.P. et al., Defendants
For AMY SILVIS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff: JONATHAN SHUB, LEAD ATTORNEY, SEEGER WEISS LLP, PHILADELPHIA, PA; SCOTT A. GEORGE, SEEGER WEISS, ADELPHIA, PA; TROY M. FREDERICK, MARCUS & MACK PC, INDIANA, PA.
For AMBIT ENERGY, L.P., doing business as AMBIT TEXAS, LLC, AMBIT TEXAS, LLC, AMBIT NORTHEAST, LLC, AMBIT NORTHEAST, LLC, doing business as AMBIT ENERGY, AMBIT ENERGY, AMBIT ENERGY HOLDINGS, AMBIT ENERGY HOLDINGS, doing business as AMBIT NORTHEAST, LLC, AMBIT HOLDINGS, LLC, AMBIT HOLDINGS, LLC, doing business as AMBIT ENERGY HOLDINGS, LLC, AMBIT ENERGY HOLDINGS, LLC, doing business as AMBIT ENERGY, AMBIT ENERGY HOLDINGS, LLC, doing business as AMBIT, Defendants: JOANNA J. CLINE, LEAD ATTORNEY, CHRISTINA O. HUD, PEPPER HAMILTON LLP, PHILADELPHIA, PA; STEPHEN C. RASCH, LEAD ATTORNEY, PRO HAC VICE, THOMPSON & KNIGHT LLC, DALLAS, TX; MICHAEL W. STOCKHAM, PRO HAC VICE, THOMPSON & KNIGHT LLC, DALLAS, TX.
EDUARDO C. ROBRENO, J.
Plaintiff Amy Silvis brings this class action against her residential energy supplier, Defendant Ambit Energy, L.P., and a host of related entities, alleging breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. Defendants have moved to transfer venue. For the reasons that follow, the Court will deny the motion.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, a Pennsylvania resident, contracted with Defendant Ambit Northeast, LLC, a Delaware company with a Energy, L.P., Ambit Texas, LLC, Ambit Energy, Ambit Energy Holdings, LLC, Ambit Energy Holdings, and Ambit Holdings, LLC, as Defendants. Plaintiff asserts that all Defendants " were collectively engaged in the business of marketing, advertising principal place of business in Dallas, Texas, to supply her electricity. According to Plaintiff, Defendants' marketing campaign promised savings over other energy suppliers and competitive variable rates " keyed to market factors." Am. Compl. ¶ 17. In reliance on these representations, Plaintiff opted for a variable rate plan, under which she would pay a " teaser" rate for an initial one-month term, and then
pay a rate " dependent upon price fluctuations in the energy and capacity markets, plus all applicable taxes" thereafter. Residential Disclosure Statement, Id. Ex. C. Although there is some disagreement between the parties about which documents represent the agreement at issue here, both the Residential Disclosure Statement (the " Disclosure" ) and the Sales Agreement & Terms of Service (the " Terms of Service" ) became operative during the course of the parties' dealings. See Am. Compl. ¶ ¶ 27, 32. Included within the " Governing Law" section of the Terms of Service is the following language: " Venue for any lawsuit brought to enforce any term or condition contained herein shall be exclusively in the State of Texas." Terms of Service, id. Ex. B, at 3.
On February 17, 2013, at the beginning of the contract term, the " teaser" rate was $0.0699 per kilowatt hour (kWh). Id. Ex. C. Plaintiff alleges that, by April 15, 2014, the charge increased to $0.1369 per kWh, which was " almost twice the rate that Plaintiff's local energy provider, Penelec, would have charged . . . during the same time period." Am. Compl. ¶ 30. Plaintiff claims Defendants breached her contract, as well as those of all class members, by not providing the promised " competitive rate based on market factors." Id. ¶ 50.
On these allegations, Plaintiff brings the following claims: breach of contract, breach of the covenant of good faith and fair dealing, unjust enrichment, and declaratory relief. Plaintiff requests that the Court certify the class, designate Plaintiff as class representative, award each class member individual damages, impose a constructive trust on Defendants pending resolution of these claims, and issue declaratory and injunctive relief.
II. PROCEDURAL HISTORY
On August 27, 2014, Plaintiff commenced this action by filing a Complaint in federal court. ECF No. 1. On November 11, 2014, Defendants filed a Motion to Dismiss (ECF No. 9), and Plaintiff filed her Amended Complaint on November 24, 2014 (ECF No. 16). Defendants filed a Motion to Transfer Venue on January 21, 2015 (ECF No. 21), to which Plaintiff has responded (ECF No. 22). On January 27, 2015, Defendants filed a motion for leave to file a ...