Defendants file motion to dismiss Gowen suit

Clonie Gowen

The defendants in the Clonie Gowen lawsuit against Full Tilt Poker have filed a 12-page motion to dismiss her lawsuit.

Perhaps playing on her given name, Cycalona, the motion begins with the assertion that Gowen has filed a "typhoon" of litigation against 18 separate parties which is alternately indiscriminate, overreaching and random.

While acknowledging that Gowen might have a claim for breach of oral contract against Full Tilt and its related companies, the motion asserts that the shotgun approach of filing a variety of different claims against 13 individual defendants and the failure to allege sufficient facts to support her claims requires dismissal of many of the claims and an order requiring rewording of others.

The main focus of the motion appears to be an attempt to dismiss the "celebrity" poker professionals named as codefendants, including Howard Lederer, Chris "Jesus" Ferguson, Phil Ivey and 10 others.

These defendants assert that the only reason they were named was because of their fame, and not because Gowen could state a valid claim against any of them. They maintain that it was litigation strategy as well as a thirst for publicity that led Gowen to include them in her complaint against Full Tilt and that they should be dismissed from the complaint.

In addition to dismissing the individually named poker pros, the defendants' motion seeks to have certain causes of action of her complaint either dismissed in their entirety or redrafted to include additional facts to support her claims.

As to Gowen's first cause of action for breach of contract, defendants seek to have the complaint amended to assert whether the contact in question was oral or written and to more fully detail the terms of the alleged agreement.

In addition, defendants are moving to have this cause of action dismissed with prejudice (without any opportunity to amend) as against the 13 individuals, based on their argument that none of them was a party to the alleged contract.

Chris Ferguson
Motion claims naming Ferguson and other celebrity players was just a tactic by Gowen, not a legitimate claim against them.

The defendants are further seeking to have the second cause of action, for breach of fiduciary duty, dismissed against the 13 individuals under various legal theories. First, they claim that the individual members had no fiduciary duty to Gowen, despite her allegation that they, as majority shareholders, had such a duty to her as a minority member.

Second, they claim that they were named solely for tactical reasons and that there was no fiduciary relationship between the Full Tilt pros and Gowen.

Finally, they claim that she failed to assert this claim with enough specificity.

As to the third cause of action for breach of the covenant of good faith and fair dealing, defendants seek dismissal for the same reason as alleged for the breach of contract claim. They claim that since the individual defendants are not parties to the alleged contract between Gowen and Full Tilt, they cannot be liable under any legal theory premised on there being a contract.

In addition, they assert a novel theory: that because Gowen's alleged contract damages are so large (some $40 million), they are more than adequate to compensate her and there is no additional egregious behavior alleged by the defendants which would allow her to seek additional damages arising out of this dispute.

The defendants seek to dismiss the fourth cause of action for unjust enrichment, which is basically premised on the theory that Gowen performed a service and the defendants benefited from it, but failed to compensate her.

First, defendants complain that Gowen has pleaded this claim "indiscriminately" against "all defendants." They further argue that she cannot continue this claim where there is an express, written contract, despite the fact that neither they nor Gowen asserts the existence of a written contract. And they argue that this claim is nothing more than a restating of the breach of contract claim, and that it cannot be brought against the individual defendants.

The final cause of action, for fraud, is alleged by the defendants to be "particularly ambiguous." It appears based on the complaint that there were two meeting between Gowen and representatives of Full Tilt in which certain terms were agreed to - basically, that she would represent the online poker site and they would give her 1% interest in the Full Tilt companies.  Gowen's fraud claim is based on the theory that the Full Tilt defendants had no intention of fulfilling their part of this agreement. So, rather than being a simple breach of contract claim, she asserts that their conduct was intentionally misleading and entitles her to additional, punitive damages.

The defendants maintain, however, that under Federal Rules of Civil Procedure Rule 9(b), Gowen failed to allege her fraud cause of action with particularity by failing to state exactly what statements were made by each of the defendants that were knowingly false when made.

In this motion, the individual poker pro defendants are claiming that, accepting everything Gowen alleges is true, she still does not have a cause of action against them under any theory. Accordingly, the motion seeks to dismiss the complaint as against all of them.

In addition, the remaining defendants are seeking either dismissal of the complaint or an order requiring her to restate with specificity the grounds of her lawsuit against the remaining defendants. Gowen's attorneys have 30 days to submit their opposition to this motion (or file an amended complaint, if they so choose, addressing some of the issues raised in the motion).

It is likely that Gowen will have to amend her complaint to assert additional facts, and the contract-related claims may be dismissed against some of the individual poker pros. But it is highly unlikely that this motion will result in her case being dismissed fully. On the contrary, it is just getting started.

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