Memorandum Opinion and Order
Oleg Kostovetsky alleges in this putative class action that Jere Thompson, Jr., Chris Chambless, Ambit Energy Holdings, LLC, Ambit Illinois, LLC, and several other Ambit entities (collectively, “Ambit”), along with 100 unnamed Ambit consultants, perpetrated a scheme to defraud him and thousands of other natural gas customers in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and state unjust enrichment law. Doc. 1. Kosto-vetsky alleges that Ambit and one of its consultants duped him into signing up for Ambit Illinois’s services by fraudulently promising savings on his gas bill, when in fact he ended up paying much higher prices to Ambit Illinois than he would have paid to his former provider.
Earlier in the litigation, the court denied Ambit’s motion to dismiss. Docs. 64-65 (reported at
Meanwhile, three other Ambit customers — Taurshia Simmons, Brian Whitney, and Navid Kalatizadeh, who will be called “the Simmons Plaintiffs” — moved to intervene for the limited purpose of opposing Argentieri’s intervention motion. Doc. 152. The Simmons Plaintiffs are the named plaintiffs in Simmons v. Ambit Energy Holdings, LLC, Index No. 503285/2015,
For the following reason's, Ambit’s summary judgment motion is granted, its motion to strike is denied, Argentieri’s motion to intervene is denied, and the Simmons Plaintiffs’ motion to intervene is denied as moot.
Background
The following facts are set forth as favorably to Kostovetsky as the record and Local Rule 56.1 permit. See Hanners v. Trent,
Certain Illinois natural gas consumers, including those served by Nicor Gas, have the option of contracting for gas service with an alternative gas supplier rather than their local utility. Doc. 134 at ¶ 1; see also Natural Gas Choice, Illinois Commerce Commission, https://www.icc.illinois. gov/ags/consumereducation.aspx (last visited Mar. 8, 2017). Ambit Illinois is one such alternative supplier. Doc. 103 at ¶ 1. Like other Ambit entities, Ambit Illinois relies on salespeople it calls “Independent Consultants” to find and enroll new customers. Id. at ¶¶2-3. In trainings for its consultants and on its website, Ambit Illinois emphasizes potential consumer savings and its “competitive” low rates. Doc. 134 at ¶¶ 3-12.
Kostovetsky was a Nicor customer until late June 2013, when an Ambit consultant persuaded him to switch to Ambit Illinois. Id., at ¶¶ 28-30, As Kostovetsky understood the sales pitch, the consultant promised that, “no matter what,” Ambit Illinois would charge him a lower rate than Nicor and he would save money by switching. Doc. 100-16 at 10-11; Doc. 134 at ¶ 30. (Defendants lodge a hearsay objection to Kostovetsky’s testimony about what the consultant told him. Doc. 132 at 5. The objection is overruled because the consultant’s statements while pitching Ambit Illinois’s services are admissible under Federal Rule of Evidence 801(d)(2)(C) and/or (D).) Specifically, Kostovetsky thought that, as an Ambit customer, he would be entitled to at least a one percent discount from Nicor’s rates. Doc. 103 at ¶ 18.
Upon agreeing to enroll with Ambit Illinois, Kostovetsky gave the consultant his Nicor bill,- which was the only information the consultant requested to sign him up. Doc. 100-16 at 13; Doc. 134 at ¶¶ 31-32. On June 28, 2013, someone other than Kostovetsky — presumably the consultant — used Ambit Illinois’s website to enroll him. Doc. 69-1 at 4 ¶ 15; Doc. 100-16 at 12; Doc. 103 at ¶ 4; Doc. 134 at ¶ 31, Shortly thereafter, someone other than Kostovetsky completed his enrollment on a
Signing up via Ambit Illinois’s website requires the customer’s name, address, telephone number, and account number with his incumbent utility. Doc. 69-1 at 2 ¶ 5; Doc. 103 at ¶ 5. New customers enrolling through the website must also check a box acknowledging and accepting. Ambit Illinois’s terms of service, to which they are given a hyperlink. Doc. 69-1 at 2 ¶ 6; Doc. 103 at ¶ 6. Whoever signed up Kosto-vetsky must have checked the box. Doc. 69-1 at 2 ¶ 6; Doc. 103 at ¶ 6. That person also provided Kostovetsky’s mailing address, which was accurate, and an e-mail address, “blooshi@aol.com,” which was inaccurate. Doc. 100-16 at 19-21; Doc. 110 at ¶¶ 7, 22; Doc. 134 at ¶ 34.
On June 28, Ambit Illinois sent a welcome email, including a hyperlink to its terms of service, to the inaccurate email address. Doc. 69-1 at 2 ¶ 7; Id. at 8; Doc. 110 at ¶ 7. On June 30, Ambit Illinois sent a welcome letter to the accurate mailing address associated with Kostovetsky’s account, enclosing a three-page document setting forth the terms of service. Doc. 69-1 at 3 ¶ 8; id. at 10-13; Doc. 103 at ¶ 8. Ambit has adduced evidence that Ambit Illinois mailed the June 30 letter containing the terms of service to Kostovetsky’s mailing address and that the letter was not returned undelivered. Doc. 103 at ¶¶ 20-23. Although Kostovetsky has acknowledged that the address Ambit Illinois has on file for him is accurate, Doc. 69-2 at 2-3 ¶¶ 6-8; id. at 6; Doc. 69-3 at 2 ¶ 6; id. at 6; Doc. 100-16 at 21; Doc. 103 at ¶ 22, he testified at his deposition that he could not recall whether he received the June 30 letter, Doc. 100-16 at 21-22.
The parties disagree whether, on this record, there is a genuine factual dispute whether Kostovetsky received the June 30 letter. There is not. “[EJvidence of proper mailing raises a rebuttable presumption of delivery.” Laouini v. CLM Freight Lines, Inc.,
Q. Did you receive this letter [with the terms of service] in the mail from Ambit?
A. I 'don’t remember. -
Q, You just don’t recall one way or the other?
A, I don’t remember receiving this letter.
Q. I want .to make sure I understand your testimony, Mr. Kostovetsky, and I’ll let you know that Ambit’s records reflect that the letter was mailed to you.
So my question is are you denying under oath that you received the letter?
A. I have no recollection of this letter.
Q. You have no recollection one way or the other? ‘
A. One way or the other.
Doc. 100-16 at 21-22.
Unlike an outright denial, Kostovetsky’s lack of recollection cannot rebut the presumption that he received the letter, and so there is no genuine factual dispute. See Boomer v. AT&T Corp.,
Ambit Illinois began supplying gas to Kostovetsky on July 19, 2013. Doc. 103 at ¶9. Initially, he was enrolled in Ambit Illinois’s “Guaranteed Savings Plan.” Id. at ¶ 11. Ambit Illinois’s terms of service provided that they were “the entire Agreement between Ambit Energy and Customer,” that “any previous agreements or oral statements are null and void,” and that the customer “did not rely on any oral representations” that contradict the terms of service. Id. at ¶ 13. Regarding the Guaranteed Savings Plan, the terms of service explained:
The price for all energy sold under this Agreement for the first two billing cycles shall be set based upon a five percent (5%) discount to the incumbent utility’s published supply rate .... Thereafter, your supply rate will be set at a competitive variable market rate that will result in an annual savings of at least one percent (1%) ... to what the incumbent utility’s published supply rates for the same 12-month period that you received power from Ambit Energy under this Agreement would have provided.
Id. at ¶ 12. They added:
At the end of each 12 month period, you must renew your Guaranteed Savings Plan to continue to receive the 1% annual savings guarantee. You may renew online by logging onto your account management site at www.ambitenergy. com, calling customer care at (877) 282-6248, or by faxing your request to renew your plan to (214) 969-5928. ... If Ambit Energy does not receive a request to renew your plan, your service will continue on the Illinois Select Variable Natural Gas plan.
Id. at ¶ 19 (emphases added). Ambit Illinois' imposed this renewal requirement on the Guaranteed Savings Plan sometime in 2012, before Kostovetsky enrolled. Doc. 134 at ¶ 16.
Kostovetsky’s switch from Nicor to Ambit generated the promised savings, at least initially. During his first thirteen months as an Ambit customer, while en
When updating the terms of service in June 2014, Ambit added the following sentence regarding the Guaranteed Savings Plan: “A renewal notice will be sent to you prior to your Guaranteed Savings Plan expiration.” Doc. 69-1 at 16. On June 20, 2014, Ambit sent Kostovetsky a letter by first class mail notifying him of the need to renew the Guaranteed Savings Plan and attaching the updated terms of service. Id. at 3-4 ¶¶ 9, 17; id. at 15-18; Doc. 103 at ¶ 20. Kostovetsky cannot recall whether or not he received that letter. Doc. 100-16 at 25-26; Doc. 103 at ¶ 20. For the reasons given above as to the original terms of service mailed on June 30, 2013, Kostovet-sky’s testimony on this point fails to create a genuine factual dispute, and the court therefore concludes that he received the June 20, 2014 letter as well. See Boomer,
When Kostovetsky failed to renew his Guaranteed Savings Plan, Ambit Illinois switched him to the Select Variable Natural Gas Plan, effective sometime in August 2014. Doc. 69-1 at 15 (identifying August 4 as the expiration date of his enrollment in the Guaranteed Savings Plan); Doc. 134 at ¶¶ 44-45 (identifying August 18 as the end of the last billing period for which Kosto-vetsky experienced savings)..The terms of service governing the Select Variable Natural Gas Plan read, in their entirety: “By choosing the Illinois Select Variable Natural Gas Plan, you will receive a competitive month-to-month variable rate plan.” Doc. 69-1 at 11. That provision remained unchanged in the June 2014 update. Id. at 16. Ambit trained its consultants to tell customers who inquired about rollover that the Select Variable Natural Gas Plan was a “competitive, variable, month-to-month plan” and that customers “can, at any time, go back to the 1% Savings guarantee” by re-enrolling in the Guaranteed Savings Plan. Doc. 104-10 at 2; Doc. 134 at ¶ 22.
At the time Kostovetsky rolled over to the Select Variable Natural Gas Plan, Ambit Illinois was charging customers much higher rates on the Select Variable Natural Gas Plan than on the Guaranteed Savings Plan, which continued to track Nicor’s rates. Doc. 134 at ¶¶ 39, 41, 43. Specifically, during the last billing period before Kostovetsky rolled off the Guaranteed Savings Plan, Ambit Illinois charged him $0.67 per therm, while Nicor would have charged him $0.68 per therm. Id. at ¶ 44. But during the first full billing period after Kostovetsky rolled onto the Seleet Variable Natural Gas Plan, Ambit Illinois charged him $1.01 per therm, while Nicor would have charged him $0.68 per therm. Id. at ¶ 45.
On January 26, 2015, upset with his skyrocketing , energy bill, Kostovetsky called to cancel his service with Ambit Illinois. Doc. 103 at ¶ 26. That phone call was the first time that Kostovetsky complained to Ambit Illinois about its rates. Id. at ¶ 25. During the phone call, Kosto-vetsky confirmed that the mailing address Ambit Illinois had on file for him was correct. Doc 69-2 at 2-3 ¶¶ 6-8; id. at 6.
Discussion
I. Ambit’s Motion to Strike and Summary Judgment Motion
Ambit has moved to strike several arguments in Kostovetsky’s summary judgment response, asserting that those arguments press new theories of liability not fairly encompassed by the complaint. Doc. 131. Ambit is right that- a plaintiff “may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.” Anderson v. Donahoe,
A plaintiff opposing summary judgment may not inject “new and drastic factual allegations,”- but instead must adhere to the complaint’s “fundamental factual allegation[s].” Whitaker v. Milwaukee Cnty.,
At the same time, a plaintiff has latitude to refine and develop his • legal and factual theories based on the record that emerges in discovery. See CMFG Life Ins. Co. v. RBS Sec., Inc.,
Kostovetsky’s summary judgment response falls on the permissible side of the line. According to Ambit, because the •complaint alleges that Kostovetsky’s bills doubled “[ajfter switching to Ambit,” Doc. 1 at ¶ 12, he is limited to arguing that the increase occurred “directly after” he enrolled with Ambit, as opposed to thirteen months later. Doc. 131 at 3 (emphasis added). But the complaint does not plead that the drastic rate increase occurred immediately after Kostovetsky switched to Ambit, and immediacy is not essential- to the RICO claim he presses here. See Chen v. Mayflower Transit, Inc.,
This is consistent with the design of the Federal Rules, which contemplate that additional facts and evidence will emerge in discovery to help plaintiffs flesh out them claims. See Fed. R. Civ. P. 26 advisory committee’s note to the 1946 amendment (“The. purpose of discovery is to allow a broad search for facts, the names of witnesses,' or any other matters which may aid a party in the preparation or presentation of his case.”). Recall that Kostovetsky is not aware of having received the notices that Ambit mailed- advising him of its rollover policy and the need to renew the Guaranteed Savings Plan, so it is understandable that, at the outset of this suit, he would have been unsure of the precise means by which his savings evaporated. It is therefore reasonable that the complaint does not mention the renewal requirement,
In the end, however, the denial of Ambit’s motion to strike is of no moment, for Kostovetsky’s claims, even as set forth in his summary judgment response, fail on the merits.
A. RICO Claims
Kostovetsky RICO claims arise under §§ 1962(c) and 1962(d). Section 1962(c) prohibits any individual or entity “employed by or associated with” an “enterprise” engaged in interstate commerce “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). To prove his § 1962(c) claim, Kostovetsky must adduce evidence showing that Ambit engaged in “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc.,
Both RICO claims require a showing that Ambit committed or agreed to engage in a pattern of “racketeering activity,” a term the RICO statute “de-fínete] in terms of a long list of crimes.” United States v. Benabe,
To establish mail or wire fraud, Kostovetsky must adduce evidence showing: “(1) the defendant’s participation in a scheme to defraud; (2) the defendant’s commission of the act with intent to defraud; and (3) use of the mails [or interstate wires] in furtherance of the fraudulent scheme.” Bible,
Ambit argues that no fraud occurred when Ambit Illinois rolled Kosto-vetsky from the Guaranteed Savings Plan to the Select Variable Natural Gas Plan, because his terms of service disclosed that he had to renew his Guaranteed Savings Plan in order to remain on that plan and that he would roll over to the Select Variable Natural Gas Plan if he did not renew. Doc. 68 at 10-12. Kostovetsky counters that he was not on notice of the terms of service, because he did not personally assent to them when he signed up through the consultant and because he never saw them thereafter. Doc. 101 at 32-33. As explained above, the undisputed evidence shows that Kostovetsky did have notice of the terms of service — he received two separate mailings containing them and/or alerting him to the renewal requirement. This means that he could easily have informed himself of the need to renew well in advance of his August 2014 rollover. See Hill v. Gateway 2000, Inc.,
The Seventh Circuit held that this alleged bait-and-switch was not an act of fraud on which Corley could predicate his RICO claim, giving three reasons. First, “Corley could hardly claim he was deceived or injured by a price increase in and of itself when that risk was explicitly disclosed in the contract.” Id. at 1006. Second, the provision empowering Corley to terminate the contract at any time independently doomed the claim: “If fraud was Rosewood’s aim, it went about the process in a very unlikely manner by giving residents an absolute out that would protect them from injury,” Id. at 1007. Third, Corley failed to show fraud as opposed to mere breach of contract: “The fact that Rosewood subsequently broke a promise is not evidence that it never intended to keep the promise when made. .,. Fraud requires much more than simply not following through op contractual or other promises. It Requires a showing of deception at the time the' promisé is made.” Id. at 1007. Because the room rate "promise "was not fraudulent and did "not injure' Corley, the Seventh Circuit held that" Corley failed to prove a predicate RICO act, thereby warranting summary judgment. Id. at 1008.
If Rosewood’s conduct in Corley did not qualify as mail fraud or, by extension, racketeering, then neither does Ambit’s rolling Kostovetsky from the Guaranteed Savings Plan to the Select Variable Natural Gas Plan, Like Rosewood, Ambit explicitly reserved in its terms of service the right to do what it did — roll Kostovetsky onto a different plan if he did not renew his current one. See Corley,
It is likely that Ambit Illinois was counting on a material segment of its customer base automatically rolling onto the pricier Select Variable Natural Gas Plan due to inertia and inattentiveness. Compare Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 85-87 (2009) (noting that “if, for a given choice, there is a default option — an option that will obtain if the chooser does nothing — then we can expect a large number of people to end up with that option, whether or not it is good for them,” and that many businesses “have discovered the immense power of default options”), with Doc. 134 at ¶ 25 (quoting an Ambit financial model predicting that, “[c]onservatively, we expect 65% of the expiring customers to roll to the variable/select product”). That may be a distasteful way of doing business, but it was not fraudulent and thus not racketeering. See United States v. Weimert,
There remains one other avenue by which Kostovetsky might prove the fraud predicate of his RICO claims: his assertion that Ambit misled him by promising to charge a “competitive” rate on the Select Variable Natural Gas Plan, when in fact its prices later soared relative to both the Guaranteed Savings Plan’s rates and Nicor’s rates. Doc. 101 at 24-25. A reasonable jury might have found that Ambit broke this promise — at times it was charging Select Variable Natural Gas Plan customers more than double Nicor’s rate. Doc. 134 at ¶¶ 39, 45-46. And that broken promise might have been actionable as a breach of contract or under a state consumer protection statute.- See Silvis v. Ambit Energy L.P.,
When distinguishing run-of-the-mill broken promises and breached contracts from RICO fraud, the second element of mail and wire fi’aud is crucial: there must be evidence of intent to defraud. See Bankcard Am., Inc. v. Universal Bancard Sys., Inc.,
Kostovetsky has adduced no direct evidence of this fraudulent intent. But “specific intent to defraud may be established by circumstantial evidence and by inferences ... which demonstrate that the scheme was reasonably calculated to deceive persons of ordinary prudence and comprehension.” United States v. Paneras,
Chen v. Mayflower Transit, Inc., supra, illustrates the kind of circumstantial evidence that suffices to prove fraud. In Chen, a local moving company — acting on behalf of the defendant, a trucking firm that coordinated interstate moves through a network of local movers — promised Chen orally and in writing that the cost of moving her possessions to Chicago would be an amount “not to exceed $1,741.89.”
The court held that Chen had adduced evidence sufficient to “support an inference of intent to defraud.” Id. at 920. The evidence showed that although the defendant “kn[e]w that some shippers [were] confused by the use of the phrase ‘not to exceed’ ” and the written agreements misleadingly specified the cost of some services but omitted others, the defendant continued to charge more. Ibid. Moreover, Chen “did not simply fail to read the terms ... (and was therefore inattentive),” and “members of the enterprise made clear misrepresentations or lies about the effect of the agreement.” Id. at 921.
Unlike Chen, Kostovetsky has failed to addúce evidence from which a reasonable jury could infer that Ambit Illinois’s June 2013 promise of “competitive” rates on the Select Variable Natural Gas Plan was accompanied by a contemporaneous intent to defraud him. Although Chen has some features in common with this case — most notably the Ambit consultant’s arguably misleading oral representation that Kostovetsky would save money “no matter what” — two key distinguishing facts warrant a different result. First, the timing of Ambit Illinois’s promise and the rate increase do not synch up. In Chen, the promise was broken at the first and only opportunity. Here, Ambit Illinois’s June 2013 promise that Kostovetsky would receive “competitive” rates if he rolled over onto the Select Variable Natural Gas Plan was true at the time the promise was made. The Select Variable Natural Gas Plan’s rates were competitive at that time — they closely tracked the Guaranteed Savings Plan’s rates, and thus were comparable to Nicor’s rates, until the winter of 2013-14, at least six months after the June 2013 promise. Doc. 134 at ¶ 39. And even though the rates spiked that winter, Kos-tovetsky remained on the Guaranteed Savings Plan until August 2014, so he did not experience uncompetitive rates until over a year after receiving the promise.
If this were a premeditated scheme to charge Kostovetsky uncompetitive rates, one would expect some evidence that Ambit Illinois never intended to keep the competitive rate promise. The lag between Kostovetsky’s enrollment and the rate increase means that timing cannot supply a basis for drawing that inference. See Corley,
The second ground distinguishing this case from Chen is that Ambit Illinois’s terms of service never locked him into paying the higher rates. This is part and parcel with one of the reasons that Kosto-vetsky was not defrauded by the rollover policy. Ambit Illinois gave him the means to benefit from the Guaranteed Savings Plan had he simply been a more attentive customer — thus avoiding any harm from its failure to offer competitive rates to Select Variable Natural Gas Plan customers — because its terms of service empowered him both to remain on the Guaranteed Savings Plan before the rollover and to shift back afterward. See Corley,
This is, again, not to say that- Ambit’s approach to delivering upon its value proposition was admirable, or that Ambit did not breach its contract with Kostovet-sky or run afoul of state consumer protection law. See Richards,
In sum, Kostovetsky has failed to show that a reasonable jury could find that Ambit’s conduct was fraudulent under the mail fraud and wire fraud statutes. Having failed to prove any predicate act of racketeering, he cannot proceed with his RICO claims.
B. Unjust Enrichment Claim
Kostovetsky’s unjust enrichment claim fails along with his RICO claims. Citing Cleary v. Philip Morris, Inc.,
Even putting aside forfeiture, Ambit is correct that the unjust enrichment claim falls with the RICO claims. Disposi-tive on this point is Association Benefit Services, which holds that, under Illinois law, “when the plaintiffs particular theory of unjust enrichment is based on alleged fraudulent dealings and we reject the plaintiffs claims that those dealings, in
II. Argentieri’s and the Simmons Plaintiffs’ Motions to Intervene
Argentieri seeks permissive intervention under Civil Rule 24(b). A court may allow intervention under Rule 24(b) only if: (1) a claim or defense of the would-be intervenor has “a question of law or fact in common” with the main action; and (2) the intervention request is timely. Sokaogon Chippewa Cmty. v. Babbitt,
The court will assume that the common question requirement is met— notwithstanding Ambit’s arguments to the contrary, Doc. 144 at 6-7 — because the intervention motion’s timeliness is disposi-tive. “As soon as a prospective intervenor knows or has reason to know that his interests might be adversely affected by the outcome of the litigation he must move promptly to intervene.” Sokaogon Chippewa Cmty.,
The first factor — how long Argen-tieri knew or should have known of her interest in the case — cuts against intervention. This suit was filed in March 2015. Doc. 1. Argentieri alleges that she became aware “[i]n or about April 2015” that her local Ambit supplier was charging her much higher rates than her incumbent utility would have. Doc. 100-18 at ¶ 8; Doc. 105-1 at ¶ 17. Ambit moved for summary judgment against Kostovetsky on January 29, 2016, prior to any motion by him to certify a class. Doc. 67. By agreement, limited discovery followed, with a deadline of April 18, 2016, later extended to May 9, 2016. Docs. 78, 93.
Once discovery was complete, Argenti-eri — represented by Kostovetsky’s lawyers — moved to intervene on June 6, 2016, the same day Kostovetsky responded to Ambit’s summary judgment motion. Doc. 101; Doc. 105. Ambit argues that this was
As a general proposition, a year’s delay between a prospective inter-venor’s becoming aware that she is the victim of corporate misconduct and her attempt to intervene may be undue. See Southmark Corp. v. Cagan,
The rule set forth in those cases fits awkwardly with Argentieri’s situation, however, because she invokes it simultaneously with a disavowal of any argument that Kostovetsky “is an unfit class representative”; to the contrary, Argentieri insists Ambit’s summary judgment motion against Kostovetsky is meritless. Doc. 147 at 6. The gist of Argentieri’s justification
Nevertheless, under the circumstances of this case, Argentieri could have and should have acted sooner. Even if she is correct that she was entitled to await unfavorable developments in this litigation before stepping in,' she knew or should have known about the weaknesses of Kostovet-sky’s claim when Ambit filed its summary judgment motion in January 2016. Yet she chose to wait and see if several months of discovery would play out in Kostovetsky’s favor before putting forward her supposedly stronger claim. Although lasting only a few months, that delay was unwarranted — especially given that Argentieii and Kostovetsky have the same lawyers, who were on notice of the arguments that Ambit was making against Kostovetsky as soon as its summary judgment motion was filed, and who presumably became aware of the factual predicates of that motion even earlier. See Southmark Corp.,
The second timeliness factor— the. prejudice to the original parties — also cuts against, Argentieri. “[P]ermissive intervention is to be denied if it would unduly delay or prejudice the adjudication of the rights of the original parties.” Southmark Corp.,
That is precisely the situation here. Ar-gentieri argues that she should be allowed to intervene because this case remains “in its infancy,” with “little discovery ha[ving] occurred” thus far. Doc. 105 to 6. That characterization is inaccurate; Argentieri failed to seek intervention until Kostovet-sky’s suit was on life support — briefing had been ordered, and discovery completed, on what turned out to be a fatal summary judgment motion. Allowing Argenti-eri’s new claims at this late stage, alleging mistreatment by a different Ambit entity (Ambit New York, not Ambit Illinois) on different facts, would effectively reopen a dismissed case and necessitate burdensome additional discovery. See Kruse,
The third factor also disfavors intervention, as there is no prejudice to Ar-gentieri from denying her motion because she remains free to file her own suit or remain a putative class member in Simmons. See Cent. States, Se. & Sw. Areas Pension Fund,
In sum, applying the four timeliness factors, the court finds that Argentieri’s intervention motion was untimely and thus should be denied. Because the Simmons Plaintiffs moved to intervene only “for the limited purpose of opposing” Argentieri’s motion, Doc. 152, their intervention motion is denied as moot.
Before concluding, it bears mention that allowing Argentieri to intervene here, rather than to pursue her own suit or remain a putative class member in Simmons, would make no practical sense. Kos-tovetsky’s claims have been defeated, and he (together with Ambit Illinois) was this suit’s best, and perhaps only, connection to Illinois. Now that his claims have been •dismissed, Argentieri, a New York resident and customer of Ambit New York, should proceed, if at all, in New York. Cf. Kruse,
Conclusion
Ambit’s summary judgment motion is granted and its motion to strike is denied, Argentieri’s motion to intervene is denied, and the Simmons Plaintiffs’ motion to intervene is denied as moot. Judgment will be entered in favor of Ambit and against Kostovetsky.
Notes
On June 15, 2015, at the presentment of Ambit’s motion to dismiss, the court asked Kosto-Vétsky’s counsel why he did not bring a claim under the Illinois Consumer Fraud Act or, for the putative class members, under the consumer fraud statutes of other States like California or New Jersey. Counsel answered:
‘‘Frankly, your Honor, I think that sometimes with consumer fraud, there’s issues of reliance, individualized issues, so it definitely was with an eye to class cert. We are still reviewing their motion and deciding and I’m evaluating whether we want to amend to include such counts, so that’s something we’ll take into account.” Kostovetsky never sought to amend his complaint to add state statutory consumer fraud claims, and he did not defend against Ambit’s motion to dismiss or summary judgment motion by arguing that he was bringing such claims, so he has forfeited any such claim he might have had. See Nichols v. Mich. City Plant Planning Dep't, 755 F.3d 594 , 600 (7th Cir.2014) ("The non-moving party waives any arguments that were not raised in its response to the moving party's motion for summary judgment.”); G & S Holdings LLC v. Cont'l Cos. Co.,697 F.3d 534 , 538 (7th Cir. 2012) ("We have repeatedly held that a party waives an argument by failing to make it before the district court.”); Salas v. Wis. Dep’t of Con.,493 F.3d 913 , 924 (7th Cir. 2007) (“[A] party forfeits any argument it fails to raise in a brief opposing summary judgment.”). Kostovetsky’s strategy turned out to be unwise in hindsight, but it- also was questionable at its inception: even assuming it would be difficult or impossible to certify a state consumer fraud class, he could have attempted to pursue both a RICO class claim as well as individual contract and state consumer fraud claims. This is not to say the state law claims would have prevailed, see Cafferty, Clobes, Meriwether & Sprengel, LLP v. XO Comm’cns Servs., LLC,850 F.3d 840 (7th Cir. 2017), but Kostovetsky did not even try with respect to either the competitive rates promise or the rollover from the Guaranteed Savings Plan.