Wash. Inv. v. nTherm, LLC


Court: United States District Court, Northern District of West Virginia

Date published: Mar 31, 2023


In their complaint, the plaintiffs, Washington Investment, LLC (“Washington Investment”) and CMC Company, LLC (“CMC”), allege that they entered an agreement with West Penn, wherein it would  connect and supply electric services to their apartment complex. Id. at ¶ 8. Contrary to its internal memorandum, West Penn required the Plaintiffs to purchase nonessential service equipment. Id. at ¶¶ 14- 17. Further, without permission, West Penn transferred the Plaintiffs’ account to nTherm, who raised the cost of the electric services. Id. at ¶¶ 9-12. The Plaintiffs allege that they have been overcharged for labor, materials, and costs associated with their electric services and that the Defendants’ actions delayed their ability to rent the apartment complex. Id. at ¶¶ 24-27. Based on these facts, the Plaintiffs commenced this action against the Defendants in the Circuit Court of Monongalia County, West Virginia on June 9, 2022, [ECF No. 11]. They assert three causes of action: (1) breach of contract, (2) violation of internal practices and breach of duty, and (3) negligence. Id.

After timely removing the case to this Court based on diversity of citizenship, West Penn filed a motion for a more definite statement, contending that the Plaintiffs’ claims are so vague that it cannot formulate a response [ECF No. 4]. It first points out that the Plaintiffs complaint fails to identify the agreement at issue [ECF No. 5 at 3-4]. If the agreement is a  written contract, West Penn cannot respond without additional identifying information. Id. If the agreement is alternatively a utility tariff, West Penn contends that the Court lacks jurisdiction over this case because such disputes must be resolved by a state public service commission. Id. Second, West Penn asserts that the Plaintiffs have failed to indicate where the services underlying the complaint were to be performed. Id. at 45. This is essential to its defense because West Penn only provides electric services within the state of Pennsylvania, but the Plaintiffs are West Virginia entities. Id. Further, without a service address, West Penn does not know whether the Plaintiffs’ claims arose in Pennsylvania or West Virginia, and which state law applies in this case. Id. For these reasons, West Penn requests that the Court require the Plaintiffs to “provide a more definite statement regarding the alleged agreement, to include, at the very least, a description of the date of the alleged agreement, whether it was reduced to writing, and the service address(es) to which it allegedly related.” Id. at 4.

Shortly thereafter, nTherm filed its motion to dismiss the Plaintiffs’ breach of contract and negligence claims or for a more definite statement [ECF No. 9]. It asserts that the Plaintiffs’ breach of contract claim fails because the complaint does not contain any factual allegations to establish that an agreement  between the Plaintiffs and nTherm existed or that nTherm’s breached such agreement [ECF No. 10 at 4]. It similarly contends that the Plaintiffs’ negligence claim fails because there are no facts in the complaint demonstrating that nTherm owed the Plaintiffs a duty. Id. at 4. Alternatively, nTherm seeks a more definite statement for the same grounds raised by West Penn.



For the reasons stated, the Court:

(1) GRANTS West Penn’s motion for a more definite statement [ECF No. 4]; 

(2) GRANTS-IN-PART nTherm’s motion to the extent it seeks a more definite statement [ECF No. 9];

(3) DENIES-IN-PART nTherm’s motion to the extent it seeks to dismiss the complaint [ECF No. 9]; and

(4) DIRECTS the Plaintiffs to re-file their complaint, more clearly pleading and defining their claims, within fourteen (14) days of the entry of this Order.

It is so ORDERED.

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