Throckmorton v. BP America, No. 5:2011cv00159 - Document 40 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: Pla's Complaint is DISMISSED w prejudice and this matter is STRICKEN from the docket. Pla's 35 Motion for Default Judgment and 34 Motion for Entry of Default are Dismissed as MOOT. Signed by Judge Karen K. Caldwell on 4/13/2012.(SCD)cc: COR,Pro Se Pla (via US Mail)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON CIVIL ACTION NO. 5:11-cv-00159-KKC JERRY THROCKMORTON v. PLAINTIFF MEMORANDUM OPINION AND ORDER BP AMERICA DEFENDANT *** *** *** *** This matter is before the Court on BP America s motion to dismiss. [DE 33]. Pro se Plaintiff, Jerry Throckmorton, alleges that BP breached a contract to pay him $3 million for the right to use his design to stop oil flowing from the Macondo well in the Gulf of Mexico. Throckmorton alleges actual damages of $50,003,000,000 the $3 million contract price plus $50 billion, the fair market value of the well-cap. [DE 36 at 3]. Throckmorton seeks an additional $50 billion in punitive damages. [DE 36 at 3]. To survive a motion to dismiss, a plaintiff must plead claims that are plausible on their face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v Twombly, 550 U.S. 554 (2007). Iqbal and Twombly s plausibly requirement applies to allegations of the existence of a contract. Breach of contract cases may be dismissed if the claim lacks a plausible basis to support the allegation that a valid contract existed and was breached. E.g. Flex Homes, Inc. v. Ritz-Craft Corp. of Michigan, 721 F. Supp. 2d 663, 670-671 (N.D. Ohio 2010). Plaintiff fails to allege a plausible contract offer or acceptance. Plaintiff does not plausibly set forth the reasonably certain and definite terms of a contract. Moreover, Plaintiff s allegation that BP accepted his contract offer is implausible. Finally, Plaintiff does not plead a sufficient basis for punitive damages or fraud. Under Kentucky law, punitive damages are not awarded for breach of contract. KRS ยง 411-184(2), (4). If Plaintiff s punitive damages claim is based on a fraud theory, Plaintiff has failed to satisfy the requirements of Rule 9(b). See CNH America LLC v. UAW, 645 F.3d 785, 795 (6th Cir. 2011). Accordingly, Plaintiff s Complaint is DISMISSED with prejudice and this matter is STRICKEN from the docket. Plaintiff s Motion for Default Judgment [DE 35] and Motion for Entry of Default [DE 34] are Dismissed as MOOT. So ORDERED. Dated this 13th day of April, 2012.

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