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Monday, June 27, 2011

Professional Gambler's Suit Reinstated in the 9th Circuit

Clonie_Gowan_2008 In 2009, Cycalona (Clonie) Gowen brought suit in the United States District Court for the District of Nevada against Tiltware and related entities, alleging breach of contract among other things, and sought specific performance.  We reported on this suit previously in this horribly pun-filled post.  Gowen alleged breach of an oral contract made over the phone between herself and Tiltware CEO Raymond Bitar.  Gowen alleged that the contract would pay her 1% of Tiltware’s profits once it became profitable if she would agree to be a celebrity representative for the company and promote Full Tilt Poker, the company’s online poker website.  When Gowen did not receive any compensation for her promotion, she sued.The district court granted defendant Tiltware’s motion to dismiss. 

In a short, unpublished opinion, the 9th Circuit Court of Appeals affirmed in part and reversed in part, dismissing the related entities but reinstating Gowen's claims against Tiltware.  In granting Tiltware’s motion to dismiss the claim, the district court found that Gowen failed to state with specificity the terms of contract she was claiming was breached.  The district court ruled that the claim could not proceed because Gowen did not state her obligations or the terms of the contract in her complaint.  In addition she was not specific about the 1% share in Tiltware she was allegedly supposed to receive.  She did not state when it was calculated from and what other entities of Tiltware would be included in the calculation.

While the 9th Circuit affirmed parts of the District Courts ruling, the panel reversed the dismissal of the breach of contract claim against Tiltware.  The court ruled that there was sufficient information in the pleading to make a breach of contract claim.  The court rejected the Tiltware’s claim that this contract would be barred by the statute of frauds.  Even though this was an oral contract the terms did not preclude performance within one year and therefore the alleged contract would be enforceable.  

The 9th Circuit also reinstated the claims for promissory estoppel and unjust unenrichment, since Gowen alleged that she supported Full Tilt poker and did so relying on the promise of a 1% interest in the company.  The court held that, since Gowen alleged an enforceable contract, the district court erred in dismissing the claim as well as the claims for breach of implied duty of good faith and fair dealing and specific performance.

[JT & Jared Vasiliauskas]

 

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