United States District Court, D. Colorado
ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
CHRISTINE M. ARGUELLO United States District Judge.
The matter before the Court is a Motion for Partial Summary Judgment filed by Plaintiff Professional Bull Riders, LLC (“PBR”) against Defendant Perfect Blend International, Inc. (“Perfect Blend”). (Doc. # 34.)
PBR is the organizer and promoter of top-level professional bull riding events and Perfect Blend, presumably, is a supplier of a non-dairy creamer. (Doc. # 34-2 at 1.) On September 6, 2014, the parties executed a Sponsorship Agreement, the term of which was from the signing date until the conclusion of the 2014 PBR World Finals, which ended on October 26, 2014. (Doc. # 34 at 2-3.) Pursuant to the Sponsorship Agreement, Plaintiff granted Perfect Blend a license to use Plaintiff’s name, certain of its logos, and trademarks and service marks for advertising and marketing Perfect Blend and Perfect Blend’s products at PBR events leading up to and during the World Finals. (Id.) Additionally, Plaintiff agreed to identify Perfect Blend as the Official Non Dairy Creamer of the PBR and provide live-event exposure for Perfect Blend. (Id. at 3-4.) In return for the sponsorship rights, Perfect Blend agreed to pay Plaintiff a fee totaling $250, 000, which was to be paid in two installments, one on September 15, 2014, and the other on October 10, 2014. (Id. at 4.)
The Sponsorship Agreement is the only written agreement between the parties (Id. at 6) and contains the following integration clause:
All negotiations relative to the matters contemplated by this Agreement are merged herein and there are no other understandings or agreements relating to the matters set forth in this Agreement, except those expressly stated in this Agreement. This instrument sets forth the entire agreement of the Parties. No provision of this Agreement will be altered, amended, revoked or waived except by an instrument in writing signed by the Parties.
(Doc. # 32-2 at 9.)
After Perfect Blend failed to pay the first installment of the sponsorship fee, Plaintiff-in an effort to mitigate its damages prior to the PBR World Finals-did not create certain signage, which saved Plaintiff approximately $600 in costs. (Doc. # 34 at 7.) Perfect Blend also failed to pay the second installment of the sponsorship fee. (Id.) Because Perfect Blend did not pay the required fee under the contract, Plaintiff did not affirmatively provide Perfect Blend live exposure during the PBR World Finals. (Id.) Plaintiff, however, continued to recognize Perfect Blend as the Official Non Dairy Creamer of the PBR and honored its license to Perfect Blend to use the PBR Trademarks. (Id.) On November 13, 2014, Plaintiff provided written notice of default to Perfect Blend based on its failure to pay the sponsorship fee. (Id.) To date, Perfect Blend has not paid the sponsorship fee. (Id.)
On December 31, 2014, Plaintiff filed suit against Perfect Blend alleging, among other claims, breach of the Sponsorship Agreement. (Doc. # 1.) Plaintiff filed the instant action in this Court because the Sponsorship Agreement contained the following forum selection clause: “The Parties agree that all suits, actions, claims, and causes of action relating to the construction, validity, performance, and enforcement of this Agreement shall be commenced in Pueblo County, Colorado, or in Denver, Colorado if in Federal Court.” (Doc. # 34-2 at 10.) On July 14, 2015, Plaintiff moved for partial summary judgment with respect to its breach of contract claim. (Doc. # 34.) On August 4, 2015, Perfect Blend responded (Doc. # 36), to which Plaintiff replied on August 21, 2015 (Doc. # 37).
II. STANDARD OF REVIEW
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party’s claim; rather, the movant need simply point out to the Court a lack of evidence for the other party on an essential element of that party’s claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met its initial burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671. “To ...