Case 1:15-cv-00853-KK-LF Document 1-3 Filed 09/24/15 Page 1 of

FILED IN MY OFFICE
DISTRICT
COURT CLERK
22
9/14/2015 2:13:35 PM
STEPHEN T. PACHECO
Avalita Kaltenbach

STATE OF NEW MEXICO

FIRST JUDICIAL DISTRICT
COUNTY OF SANTA FE
JOSEPH WILSON,
Plaintiff,
v.

No. D-101-CV-2015-01994

PAUL HINKS, RICHARD WESTBURY,

SYMBION POWER, HART INTERNATIONAL,
and its successor, CHELSEA HOLDINGS,
Defendants.
SYMBION POWER LLC,
Counterclaimant,
v.
JOSEPH WILSON,
Counterclaim-Defendant.
ANSWER AND COUNTERCLAIM OF DEFENDANT SYMBION POWER LLC
Defendant and Counterclaimant Symbion Power LLC, by its attorneys, Montgomery &
Andrews, for its answer to the Complaint of Plaintiff and Counter-Defendant Joseph Wilson
(Plaintiff or Wilson) and for its counterclaims alleges as follows, upon knowledge with
respect to itself and its own acts, and upon information and belief with respect to all other
matters:
1.

States that it is without sufficient information either to admit or deny the

allegations in paragraph 1 of the Complaint and therefore denies them on that basis.
2.

Denies the allegations in paragraph 2 of the Complaint, except admits that Paul

Hinks is a citizen of the United Kingdom and a resident of New York, New York.

Exhibit B

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3.

Denies the allegations in paragraph 3 of the Complaint, except admits that

Richard Westbury is a citizen of the United Kingdom and a resident of Cyprus.

4.

Denies the allegations in paragraph 4 of the Complaint, except admits that

Symbion Power LLC is organized under the laws of Delaware and has its principal place of
business in Washington, D.C., United States of America.
5.

Denies the allegations in paragraphs 5, 6 and 7 of the Complaint.

6.

Answering paragraph 8 of the Complaint, restates its answers to the allegations of

paragraphs 1 through 7 of the Complaint as if fully set forth herein.

7.

States that it is without sufficient information either to admit or deny the

allegations in paragraphs 9, 10, 11, 12, 13 and 14 of the Complaint and therefore denies them on
that basis.
8.

Denies the allegations in paragraph 15 of the Complaint, except admits that Paul

Hinks is the founder of Symbion Power LLC and serves as its Chief Executive Officer.
9.

Denies the allegations in paragraph 16 of the Complaint, except admits that

Richard Westbury serves as the Chairman of Symbion Power Holdings LLC, a limited liability
corporation organized under the laws of Delaware which has its principal place of business in
Washington, D.C., United States of America.
10.

Denies the allegations in paragraph 17 of the Complaint, except admits that

Symbion Power LLC is organized under the laws of Delaware, has its principal place of business
in Washington, D.C., United States of America, and that it is an American company engaged in
the construction and operation of electric infrastructure in difficult areas of the world, as well as
other business activities.

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11.

States that it is without sufficient information either to admit or deny the

allegations in paragraph 18 of the Complaint and therefore denies them on that basis.
12.

Denies the allegations in paragraph 19 of the Complaint, except admits that

sometime in or about early 2009, Wilson and Paul Hinks met in Washington, D.C., and Wilson
later expressed interest in becoming employed as a consultant by Symbion Power LLC.
13.

Denies the allegations in paragraph 20 of the Complaint, except admits that at

various times during 2009, Wilson discussed with Paul Hinks and others the business activities
and corporate structure of Symbion Power LLC.
14.

Denies the allegations in paragraph 21 of the Complaint, except admits that at

various times from 2009 to date, Paul Hinks and Richard Westbury acted as agents and
representatives of Symbion Power LLC in regards to their dealings with Wilson.
15.

Denies the allegations in paragraph 22 of the Complaint, except admits that at

various times Paul Hinks and Richard Westbury had discussions with Wilson concerning the
business and operations of Symbion Power LLC.
16.

Denies the allegations in paragraph 23 of the Complaint.

17.

Denies the allegations in paragraph 24 of the Complaint, except admits that at

various times Paul Hinks and Richard Westbury had discussions with Wilson concerning the
business and operations of Symbion Power LLC.
18.

Denies the allegations in paragraph 25 of the Complaint, except admits that,

although Wilson never held any management position with Symbion Power LLC nor exercised
any specific management authority or powers, he was anxious to be given a title and for that
reason it was agreed at various times to publicly identify Wilson as a member of the Symbion
Power Advisory Board, as a Director of Symbion Power, and as the Chairman of Symbion

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Power Africa, although such positions did not formally exist and carried no specific duties or
functions. Wilson never attended any of the board meetings of Symbion Power LLC, was never
appointed to its management committee, and an Advisory Board was ultimately never
established.
19.

Denies the allegations in paragraphs 26, 27 and 28 of the Complaint, except

admits that Wilson as part of his duties to Symbion Power LLC agreed to assist it in obtaining
business in Africa and as needed in management matters.
20.

Denies the allegations in paragraphs 29 and 30 of the Complaint, except admits

that in Santa Fe, New Mexico in or about June 2009, Paul Hinks orally agreed on behalf of
Symbion Power LLC to employ Wilson as a consultant to assist Symbion in obtaining business
in Africa and as needed in management matters on certain terms that included compensation and
the payment of approved business expenses.
21.

Denies the allegations in paragraphs 31 and 32 of the Complaint, except admits

that in or about June 2009, Wilson began to perform certain services in accordance with his
agreement with Symbion Power LLC, for which Symbion Power LLC began paying Wilson
compensation and business expenses in accordance with that agreement.
22.

Denies the allegations in paragraph 33 of the Complaint, except admits that Paul

Hinks sent Wilson an e-mail dated April 10, 2012, and refers to that e-mail for a full and
complete statement of its contents.
23.

Denies the allegations in paragraphs 34, 35 36, 37, 38, 39 and 40 of the

Complaint.
24.

Answering paragraph 41 of the Complaint, restates its answers to the allegations

of paragraphs 1 through 40 of the Complaint as if fully set forth herein.

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25.

Denies the allegations in paragraphs 42, 43, 44 and 45 of the Complaint.

26.

Answering paragraph 46 of the Complaint, restates its answers to the allegations

of paragraphs 1 through 45 of the Complaint as if fully set forth herein.

27.

Denies the allegations in paragraph 47 of the Complaint.

28.

Denies the allegations in paragraph 48 of the Complaint, except admits that in

Santa Fe, New Mexico in or about June 2009, Paul Hinks orally agreed on behalf of Symbion
Power LLC to employ Wilson as a consultant to assist Symbion in obtaining business in Africa
and as needed in management matters on certain terms that included compensation and the
payment of approved business expenses.
29.

Denies the allegations in paragraphs 49, 50, 51 and 52 of the Complaint.

30.

Answering paragraph 53 of the Complaint, restates its answers to the allegations

of paragraphs 1 through 52 of the Complaint as if fully set forth herein.

31.

Denies the allegations in paragraphs 54, 55, 56 and 57 of the Complaint.

ADDITIONAL FACTS

1.

Defendant and Counterclaimant Symbion Power LLC is a Delaware limited

liability company with its principal place of business in Washington, D.C. Symbion Power LLC
has one member, Symbion Power Holdings LLC, which is a Delaware limited liability company
with its principal place of business in Washington, D.C. The Chief Executive Officer of
Symbion Power LLC is Paul Hinks (Hinks), a resident of New York City and a citizen of the
United Kingdom.
2.

Symbion Power LLC is a company engaged in the construction and operation of

electric infrastructure in difficult areas of the world. Paul Hinks founded Symbion Power LLC
in 2005 specifically to undertake electrical reconstruction work in Iraq and Afghanistan under
contracts with or funded by the U.S. government. In Iraq, from 2006 to 2009, Symbion Power
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LLC performed with distinction as a direct, fixed-price contractor on nine Prime Contracts for
the U.S. Department of Defense, successfully building electric infrastructure systems in the most
conflict-ridden parts of Iraq. Symbion Power LLCs nine projects included building a 300km
400kV transmission line project from Baiji to Haditha and onwards through the Al Anbar desert
to Al Qaim near the Syrian border during the very difficult period of 2006-07, when most of the
work took place. For its work, Symbion has received praise from its military clients, including
the U.S. Marine Corps Commander in Al Anbar. In an April 2008 report, the Special Inspector
General for Iraq Reconstruction ranked Symbion Power LLC as one of the top ten U.S.
government contractors in Iraq.
3.

Symbion Power LLCs current operations have focused on less-developed parts of

the world in need of electric infrastructure, particularly Africa, where Paul Hinks began his
career in the power construction business in the early 1980s. In 2010, Symbion Power LLC-led
joint ventures were awarded nearly $100 million in contracts funded by the U.S. Millennium
Challenge Corporation to build transmission and distribution lines in Tanzania. At the request of
the Tanzanian government, Symbion Power LLC has significantly increased Tanzanias power
generation resources by commissioning three power stations and developing a 400MW gas fired
power plant and a 650km transmission line in the southern region of Tanzania in a Public Private
Partnership with the state owned utility TANESCO. Symbion Power LLC is expanding its
business in other parts of Africa, and currently has power development projects underway in
Rwanda, Kenya, Nigeria, Uganda, Madagascar and other countries.
4.

In or about early 2009, former Ambassador Joseph Wilson and Paul Hinks met in

Washington, D.C., and later Wilson expressed interest in becoming employed as a consultant by
Symbion Power LLC. In telephone conversations with Hinks in Washington and elsewhere,

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Wilson told Hinks that because of his experience in government as a U.S. diplomat, he could
help Symbion Power LLC obtain business, particularly in Africa. Hinks liked Wilson and felt
that he could add value to the company, despite the expense of his services. Also, Hinks greatly
admired the important role Joe Wilson and his wife, Valerie Plame, played in bringing to light
the truth about the issue of weapons of mass destruction in Iraq.
5.

Thereafter, in or about June 2009, Wilson invited Hinks to visit him at his home

in Santa Fe, New Mexico, a State Hinks had never visited before or since. At this meeting with
Wilson in Santa Fe, Hinks orally agreed on behalf of Symbion Power LLC to employ Wilson as
a consultant to assist Symbion in obtaining business in Africa and if called upon in management
matters on the following terms: (i) compensation of $20,000 per month; (ii) payment of
expenses for travel on company business per prior agreement and travel in J Class (business);
and (iii) potential payment of a success fee in an amount that would be discussed on a case by
case basis if Wilson brought Symbion Power LLC a business opportunity it had not otherwise
known about and the company succeeded with that particular deal. The agreement was never put
into a writing that was signed by the parties, and never had a term. Accordingly, Symbion Power
LLCs oral agreement to employ Wilson was at will, and could be terminated by either party at
any time.
6.

Although Wilson never held any management position with Symbion Power

LLC, nor exercised any specific management authority or powers, Wilson was anxious to be
given an important title. In subsequent discussions with Wilson, it was agreed at various times to
publicly identify Wilson as a member of the Symbion Power Advisory Board, as a Director
of Symbion Power LLC, and as the Chairman of Symbion Power Africa, although such
positions did not formally exist and carried no specific duties, powers or functions. Wilson was

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never appointed to the management committee of Symbion Power LLC and he never attended
any board meetings. The titles were informal and conferred at his request to provide him with
status in Washington, D.C. and in Africa. Wilson never worked full time for Symbion and was
engaged with other business activities, including oil deals, some of which he pursued after
meeting contacts through his work for Symbion Power LLC. He also undertook paid speaking
events outside his employment with Symbion Power LLC.
7.

Symbion employed Wilson from in or about July 2009 to on or about December

1, 2014. During this period Symbion paid Wilson a total of $1,454,512.31 in compensation and
expenses. All Symbion Power LLCs payments were made to JC Wilson International Ventures
of Santa Fe, New Mexico, in accordance with invoices Wilson sent, or to Wilson directly.
8.

During the entire period of Wilsons employment with Symbion, he failed to

deliver any new business for Symbion Power LLC in Africa or any other part of the world.
Aside from Wilsons failure to produce new business for Symbion Power LLC, from the very
beginning, there were problems and disputes with Wilson over his excessive and often petty
expense claims, his failure to comply with company policy on travel and expenses, his treatment
of company employees, and his comportment in the office and with third parties on company
business. For example,
(i)

Wilson frequently refused to follow the companys policy to manage and control

travel expenses by booking air travel and hotel accommodations by going through the
companys staff who were charged with making plane and hotel bookings. Instead,
Wilson would frequently book his own air travel with airlines he chose primarily to
maximize his frequent traveler benefit and qualify for free upgrades to First Class, and he
booked reservations in his favored Washington, D.C. hotels, ultimately costing the

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company tens of thousands of dollars in excessive travel expenses. Wilson often

screamed at and abused in other ways the companys staff charged with making air and
hotel bookings when they tried to intervene in his travel plans to save the company
money.
(ii)

During times Wilson was in Washington, D.C. and using his office in the

companys headquarters, he at times yelled at Symbions Washington office staff when

he was displeased, and on occasion acted inappropriately in other ways. On one
occasion, Wilson joined three young female Symbion Power LLC staffers for lunch in a
conference room, where he shocked them by single-handedly consuming an entire bottle
of wine. It is not the practice of Symbions staff in Washington to consume alcohol at
lunchtimes.
(iii)

Wilson also acted inappropriately in dealings and meetings with third parties on

matters of Symbion business. He would regularly make remarks to third parties that Paul
Hinks worked for him, causing a number of people to refer to Wilson as the boss of
Symbion Power LLCs founder and CEO. Paul Hinks was forced to admonish Wilson
for this because it undermined the companys organizational structure and conveyed
authority that Wilson did not have. At times, Wilson would claim credit for services he
did not render for Symbion Power LLC. This included an appearance by then Secretary
of State Hillary Clinton to tour a Symbion Power Plant in Dar es Salaam, Tanzania with
Paul Hinks and speak at the event on the afternoon of June 13, 2011, following her visit
to the U.S. Embassy in Tanzania to commemorate the 10th anniversary of its bombing by
elements of al-Qaeda. Although Wilson was not present during this visit, he often
inaccurately boasted that the Secretary of State decided to visit Symbion because of her

Case 1:15-cv-00853-KK-LF Document 1-3 Filed 09/24/15 Page 10 of 22

friendship with him. In fact the visit was arranged by the U.S. Embassy in Tanzania and
the Millennium Challenge Corporation, of which the Secretary of State is Chair. The
Millennium Challenge Corporation had earlier called Paul Hinks to request whether they
could propose the visit to the Secretary of State because there was a gap in her schedule
during the visit to commemorate the Embassy bombing. Wilson played no role in asking
her to visit the power plant.
(iv)

On occasion, Wilsons efforts to cultivate powerful figures in Washington for his

own benefit have caused embarrassment to Symbion and its managers. On November 10,
2009, Wilson sent an e-mail to Sid Blumenthal, a close associate of then Secretary of
State Hillary Clinton, asking him to deliver an e-mail message to the Secretary of State.
In his message, Wilson inaccurately informed Secretary Clinton that in addition to being
a director of Symbion Power, he may soon assume more direct responsibility for all of
Africa as Symbion expands there from its current operations. . . . Hinks did not learn
about the message until after it was sent. When this message was recently released by the
State Department with other e-mails of Mrs. Clintons, it led to utterly inaccurate
speculation in a certain sector of the press that Wilsons relationship with Secretary of
State Clinton had something to do with the U.S. Millennium Challenge Corporation
awarding Symbion Power LLC contracts to build transmission and distribution lines in
Tanzania, which in fact were won by Symbion Power LLC after an aggressively
competitive bidding process. Wilson played no part in the bids for these projects and
Secretary Clinton was never involved in the procurement process. Wilson regularly
boasted to Symbion staff, including Paul Hinks, that Secretary Clinton had wanted to
speak in front of Joe Wilsons Power Plant. However the visit was in no way linked to

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Wilson. Yet when media reports of former-Secretary Clintons emails later suggested
there was a connection, Wilson did not deny it, thereby allowing the falsehood to be left
unaddressed and to further his self-aggrandizing agenda.
9.

Wilson has breached his duties to Symbion in more costly ways. In or about

June, 2009, shortly after his arrival at Symbion, Wilson introduced to Paul Hinks an individual
named Robert Cabelly, whom Wilson described as an old friend from his days in government
service. Wilson represented that Cabelly was an expert on Africa who had worked with
distinction for many years on African affairs in senior positions for the Department of State and
the National Security Council, and that he was at the time a partner at a prestigious Washington
consulting firm. Wilson told Hinks he wanted Symbion to employ Cabelly, who could get
Symbion business in Angola. Hinks was convinced by what Wilson told him, and in reliance on
Wilsons representations about Cabelly agreed in June 2009 to retain Cabellys services at
$15,000 a month to obtain work for Symbion Power LLC in Angola and elsewhere. What
Wilson then knew but willfully failed to tell Hinks was that his friend Cabelly had been indicted
under seal by the U.S. Justice Department for violating U.S. economic sanctions against Sudan,
using multiple passports and an offshore bank account to hide his activities, and other crimes.
Wilson also did not tell Hinks that he knew the Justice Department had seized Cabellys passport
and that Cabelly would be unable to travel to Angola or anywhere else. Because of Wilsons
duplicity, Cabelly was hired and on the payroll before Hinks learned these facts, which was after
Cabellys Federal indictment was unsealed on October 27, 2009. Cabelly never obtained any
work for Symbion Power LLC, and the money it paid him in reliance on Wilsons fraudulent
misrepresentations and omissions was wasted.

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10.

Although Wilson never produced or originated any new business for Symbion

Power LLC during the years it employed him, and he never invested or offered to invest money
in Symbion, he frequently made demands to be given equity in Symbion, referring to nonexistent oral commitments by Hinks and another Symbion executive. Over the years, these
demands to be given equity in Symbion became more frequent and increased from an equity
interest of 5% to 10% and finally to 20% of the power generation business as Symbion Power
LLC became more successful in Africa. Following one such demand by Wilson, Hinks sent him
an e-mail dated June 7, 2012, telling him that any discussion of beneficial shareholding in
Symbion had to await the resolution of an arbitration Symbion Power LLC was then involved
with and would have to involve numerous people, some of whom are no longer with Hart and
all of whom hold the shares in Symbion through 3rd companies. Wilson was not happy with
this response, and he replied with an e-mail to Hinks dated June 8, 2012 that demanded he be
given a 20% equity stake in Symbion Power Africa and a 10% equity position in the Power
Generation business, which he said was simply to protect my family should something happen
to me and to clarify for all parties my status with Symbion. Wilson gave Symbion until
Monday, June 11 to comply, and if it failed to do so, he told Hinks he planned to quit and to
inform my many Africa contacts and friends that I am no longer associated with Symbion in a
manner he threatened would be acrimonious. Hinks responded with an e-mail dated June 11,
2012 that attempted to placate Wilson by reminding him that we have maintained paying your
retainer despite the fact that you have done no work for us for a while now.
11.

Symbion Power LLC continued to pay Wilson his monthly fee despite the fact

that he was refusing to perform any services. By in or about April 2013, Wilson had in word and
deed effectively renounced any duty to perform further services for Symbion Power LLC. On

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April 24, 2013, Wilson met Hinks in the Mayflower Hotel in Washington. During this meeting,
Wilson made it clear that he refused to perform any further consulting services for Symbion as
required by the agreement, but that he still expected to be paid and repeated the non-existent
promises to grant him equity of 10% in Symbion Power Africa and 20% in the power
generation business. During the meeting, Wilson told Hinks, You do not want to get into a
fight with me, and that I can destroy Symbion.
12.

At the time Wilson uttered his threat to destroy Symbion Power LLC, Hinks

feared that Wilson would carry out his frequent threats to use his contacts and influence in
Washington and elsewhere to defame Symbion Power LLC in an attempt to destroy its prospects
of successfully completing negotiations on certain business opportunities and projects that were
then at critical stages. Fearing Wilsons threats, Hinks caused Symbion Power LLC to defer
acting on its right to terminate Wilsons monthly payments of $20,000 per month, and to
continue making them until December 1, 2014, when the company ceased further payments.
13.

Following Symbions termination of his monthly payment, Wilson continued

sending invoices to Symbion Power LLC without performing any services, and regularly made
threats in e-mails to Hinks of what he would do if his invoices were not paid. In a message dated
February 2, 2015, Wilson told Hinks, I would much prefer an amicable solution to an
acrimonious one. In a message dated April 8, 2015, Wilson said, I cannot imagine how you
think a fight with me is in your interests. On July 31, 2015, Wilson carried out his threats by
causing his attorney to send Hinks a draft of the Complaint that he has now filed, asserting in it
the defamatory and demonstrably false claims, among others, that Symbion is, on information
and belief, a group of corporations organized under the laws of Cyprus (Complaint, 4); that
The Defendants represented to Mr. Wilson on multiple occasions that Symbion and its affiliated

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entities were American companies, which they are not (Complaint, 23); and that Mr.
Wilson learned that many of the Statements made by the Defendants were false. . .[including] . . .
claims by the Defendants that Symbion was an American Company (Complaint, 36). There
can be no doubt that Wilson made these false claims in a final effort to coerce and intimidate
Symbion Power LLC to continue paying him $20,000 a month without performing any services
for it, and in the hope that Symbion Power LLC would also agree to grant him the equity interest
in the company he had been demanding.
14.

Annexed hereto as Exhibits A, B and C, respectively, are true and correct copies

of Certificates of Good Standing, each dated September 11, 2015, issued by the Delaware
Secretary of State evidencing that Symbion Power Holdings LLC and Symbion Power LLC are
Delaware limited liability corporations in good standing, and a Certificate evidencing that
Symbion Power LLC was organized in 2009 in Delaware as a successor to the original Symbion
Power LLC, which was a Nevada LLC formed in 2005, at the time Symbion was founded by
Paul Hinks. The foregoing documents establish beyond dispute that Symbion Power LLC is and
always has been an American Company, and that Wilsons claims that it is not are utterly
unfounded.
FIRST AFFIRMATIVE DEFENSE
1.

The Complaint, in whole or in part, fails to state a cause of action upon which

relief may be granted.

SECOND AFFIRMATIVE DEFENSE
2.

Plaintiff has substantially breached all agreements upon which Plaintiffs claims

are based.
THIRD AFFIRMATIVE DEFENSE
3.

Plaintiff is barred from bringing this action by the doctrine of waiver.

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FOURTH AFFIRMATIVE DEFENSE

4.

Plaintiff is barred from bringing this action by the doctrine of estoppel.

FIFTH AFFIRMATIVE DEFENSE

5.

Plaintiff is barred from bringing this action by the doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE

6.

Plaintiff is barred from bringing this action by the doctrine of laches.

SEVENTH AFFIRMATIVE DEFENSE

7.

Plaintiff is barred, in whole or in part, from bringing this action by the relevant

statutes of limitations.
EIGHTH AFFIRMATIVE DEFENSE
8.

Symbion Power LLC incorporates herein all allegations stated in its counterclaims

below.
NINTH AFFIRMATIVE DEFENSE
9.

Plaintiff is barred from bringing this action due to his renunciation of the contract

he had with Symbion Power LLC which effectively terminated it.

RESERVATION OF RIGHTS
10.

Symbion Power LLC reserves the right to plead any further affirmative defenses,

cross-claims, counterclaims and/or third-party claims as may be warranted by further

investigation and discovery.
COUNTERCLAIM AGAINST PLAINTIFF AND COUNTERCLAIM-DEFENDANT
JOSEPH WILSON
Symbion Power LLC hereby asserts the following counterclaim against Plaintiff and
Counterclaim against Defendant Joseph Wilson.

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FIRST CAUSE OF ACTION IN COUNTERCLAIM AGAINST PLAINTIFF AND

COUNTERCLAIM-DEFENDANT JOSEPH WILSON
(Breach of Contract)
11.

Symbion Power LLC incorporates by reference the allegations of paragraphs 1

through 14 of the Additional Facts set forth above as if fully set forth herein.
12.

As set forth above, Wilson has failed and refused to properly perform services in

required by his contractual duties.

13.

By reason of Wilsons breaches, Symbion Power LLC has been damaged, and is

entitled to compensatory damages from in an amount to be determined at trial.

SECOND CAUSE OF ACTION IN COUNTERCLAIM AGAINST PLAINTIFF AND
COUNTERCLAIM-DEFENDANT JOSEPH WILSON
(Fraud)
14.

Symbion Power LLC incorporates by reference the allegations of paragraphs 1

through 14 of the Additional Facts Set forth above as if fully set forth herein.
15.

As set forth above, in or about June 2009, Wilson introduced Robert Cabelly to

Symbion Power LLC and intentionally induced it to enter into an agreement to employ Cabelly
by knowingly making fraudulent representations of material fact and fraudulent omissions of
material fact concerning Cabellys capacities and abilities to perform the services required by his
employment agreement with Symbion Power LLC, which fraudulent representations and
omissions Symbion Power LLC relied on and caused it to enter into an employment agreement
with Cabelly that he did not have the capacity or ability to perform.
16.

By reason of the foregoing, Symbion Power LLC has been damaged, and is

entitled to compensatory damages from Wilson in an amount to be determined at trial.

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THIRD CAUSE OF ACTION IN COUNTERCLAIM AGAINST PLAINTIFF AND

COUNTERCLAIM-DEFENDANT JOSEPH WILSON
(Economic Duress)
17.

Symbion Power LLC incorporates by reference the allegations of paragraph 1

through 14 of the Additional Facts set forth above as if fully set forth herein.
18.

Wilson made repeated threats to destroy Symbion Power LLC and to otherwise

damage it by communicating acrimonious false and defamatory statements to third parties if

Symbion Power LLC exercised its right to terminate Wilsons consulting agreement and
terminated payment of his fees, though Wilsons agreement with Symbion Power LLC was at
will and could be terminated at any time. The false and defamatory statements to third parties
Wilson threatened to make and did make included statements that Symbion Power LLC was not
an American Company, which Wilson knew or should have known was not true.
19.

The foregoing threats constituted economic duress, and caused Symbion Power

LLC to continue paying Wilson his monthly fees, though it had no obligation to do so.
20.

Wilson made the foregoing threats with the intention of wrongfully coercing

Symbion Power LLC to continue such payments to Wilson and to confer other benefits on
Wilson, though Symbion Power LLC had no obligation to do so.
21.

By reason of the foregoing, Symbion Power LLC has been damaged, and is

entitled to compensatory damages from Wilson in an amount to be determined at trial.

WHEREFORE, Defendant and Counterclaimant Symbion Power LLC demands
judgment dismissing Plaintiffs Complaint and awarding it relief on its Counterclaim as follows:
A.

For judgment on its first cause of action in counterclaim in an amount to be

determined at trial, plus interest and costs;

B.

For judgment on its second cause of action in counterclaim in an amount to be

determined at trial, plus interest and costs;
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C.

For judgment on its third cause of action in counterclaim in an amount to be

determined at trial, plus interest and costs;

D.

Interest, costs and expenses, including, but not limited to, attorneys fees and

disbursements incurred in connection with this action; and

E.

Such further relief as the Court deems just and proper.

Dated: September 14, 2015

Respectfully submitted,
MONTGOMERY & ANDREWS, P.A.
By:

/s/ Stephen S. Hamilton

Stephen S. Hamilton
Lucas P. Conley
Post Office Box 2307
Santa Fe, New Mexico 87504-2307
(505) 982-3873
Attorneys for Defendant and Counterclaimant
Symbion Power LLC

CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2015, a true and correct copy of the foregoing was
served via the Courts electronic system and via U.S. First Class Mail, postage prepaid, on the
following counsel of record:
Brian Egolf
Egolf + Ferlic + Day, LLC
128 Grant Avenue, Third Floor
Santa Fe, New Mexico 87501
[email protected]
Attorneys for Plaintiff

/s/ Stephen S. Hamilton

Stephen S. Hamilton
19884/4/3341089.1

18

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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