United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendant's Motion
for Summary Judgment or, In the Alternative, Partial Summary
Judgment [#78] (the “Motion”). Defendant
filed a Response [#93] in opposition to the Motion [#78], and
Plaintiff filed a Reply [#97]. The Court has reviewed the
Motion, Response, Reply, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#78] is
GRANTED in part and DENIED in
Summary of the Case
Zykronix, Inc. (“Plaintiff”) is a Colorado
corporation doing business in Colorado and Taiwan. Joint
Amendment to Section 4 of the Scheduling Order [#46].
Defendant Conexant Systems, Inc. (“Defendant”) is
a Delaware corporation doing business in California whose
registered agent is in Colorado. Id. Defendant was
authorized to do business in Colorado until June 30, 2015.
Id. In early 2012, Plaintiff entered into an
agreement with a third-party named Home Automation, Inc.
(“HAI”), pursuant to which Plaintiff agreed to
design and manufacture for HAI a home automation product
later called the OmniTouch 7. Motion [#78] ¶ 1.
HAI was later acquired by Leviton Manufacturing, Co. Ltd.
(“Leviton”). Id. ¶ 3. Plaintiff met
with Defendant in March 2012 because it needed an audio chip
for the OmniTouch 7, and the parties executed a
Non-Disclosure Agreement. Id. ¶ 2. On March 26,
2013, Plaintiff sent Defendant a Purchase Order (the
“Purchase Order”) via email for 10, 400 chips,
after which Defendant delivered the chips to Plaintiff.
Id. Plaintiff thereafter installed the chips in 10,
000 OmniTouch 7 devices and delivered them to Leviton for
sale on the retail market. Id. ¶ 6. Eventually,
a “loud buzzing noise” was discovered in some of
the devices. Id. ¶ 9; Response
[#93] at 10. Plaintiff alleges that Leviton began returning
devices that emitted the noise in approximately January 2015,
and that the noise was determined to originate from the
chips. Response [#93] at 5-6.
is seeking damages from Defendant for alleged past and future
costs incurred due to the allegedly defective chips.
Compl. [#2] at 3. Plaintiff asserts two claims
against Defendant: Claim One is for breach of contract, and
Claim Two is for breach of warranty. Id. at 3-4.
Defendant moves for entry of summary judgment on the breach
of contract claim because it contends that there is no
enforceable “contract” between the parties.
Motion [#78] at 10-12. Defendant moves for entry of
summary judgment on the breach of warranty claim on the
grounds that a warranty of fitness for a particular purpose
does not apply because the chips were purchased for their
ordinary purpose. Id. at 12-13. Defendant further
argues that Plaintiff cannot establish that its damages were
caused by Defendant, and that Plaintiff has been released
from its obligations to provide repairs to its product via a
settlement agreement in a separate matter. Id. at
Defendant's Objections to Evidence
asks the Court to disregard all of the 26 exhibits attached
by Plaintiff to its Response [#93]. Defendant first argues
that the Affidavit of David Ghaemi [#93-1] (the “Ghaemi
Affidavit”) submitted by Plaintiff should be stricken
because it contains unsupported conclusions, hearsay,
statements not founded on personal knowledge, and
self-serving assertions that are not corroborated by
evidence. Reply [#97] at 1-2. Defendant further
argues that Exhibits 2 through 26 “have not been
authenticated, they lack foundation, and they are
hearsay.” Id. at 2.
respect to the Ghaemi Affidavit [#93-1], Fed.R.Civ.P.
56(c)(4) requires that an affidavit be made on personal
knowledge, show that the affiant is competent, and include
facts that would be admissible at trial. Defendant does not
provide any explanation of why it believes that the
Affidavit, which was provided by Plaintiff's Chief
Executive Officer (“CEO”), does not comply with
these requirements. On the Court's review of the
Affidavit, it is apparent that Mr. Ghaemi is competent to
testify to the facts, the facts appear to be admissible, and
it is plausible that Mr. Ghaemi has personal knowledge of the
facts stated, given that he is Plaintiff's CEO. See
Ghaemi Affid. [#93-1]. Accordingly, the Court overrules
Defendant's objections to the Affidavit.
also raises specific objections to the March 26, 2013
Purchase Order [#73-7]. First, Defendant argues in the Reply
that the Purchase Order should not be considered by the Court
because it has not been properly authenticated.
Reply [#97] at 2, 5. To the extent that Defendant
argues that the Purchase Order must have been authenticated
by affidavit, there is no such absolute requirement. See
Law Co., Inc. v. Mohawk Const. & Supply Co., 577
F.3d 1164, 1171 (10th Cir. 2009) (stating that “no
authenticating affidavit is required” and explaining
that “exhibits might be sufficiently authenticated
taking into consideration the ‘[a]ppearance, contents,
substance, internal patterns, or other distinctive
characteristics, taken in conjunction with
circumstances'”). Additionally, Defendant does not
argue that the Purchase Order is anything other than what
Plaintiff asserts it is. Moreover, Defendant in fact submits a
copy of the Purchase Order with the Motion, see
[#79-17], and cites to it in the Undisputed Facts section of
the Motion in support of the following facts: “. . . on
approximately March 26, 2013, [Plaintiff] issued a purchase
order for the purchase of 10, 400 of [Defendant's]
CX-20709-21Z audio CODEC chips . . . for the price of $2.89
per Chip.” Motion [#78] at 3. Furthermore,
Defendant provides part of the transcript from the deposition
of Mr. Streicher, who testified that he was the preparer of a
March 26, 2013 Purchase Order and that the document “is
a Revision 3, as you can see on page 2, and is not the
original purchase order which was sent to [Defendant] in
March of 2013.” Streicher Depo. [#79-16] at 4.
Although relevant parts of the deposition testimony are cut
short, the Purchase Order matches Mr. Streicher's
description of the document that he was examining. Thus, it
appears that the Purchase Order was properly authenticated,
and it is likely that the exhibit is admissible at trial.
See Alfonso v. SSC Pueblo Belmont Operating Co.,
LLC, No. 11-cv-01186-PAB-KLM, 2012 WL 2863128, at *1-2
(D. Colo. July 11, 2012) (explaining the changes caused to
Rule 56 by amendments in 2010, and rejecting a party's
authentication argument where a sufficient method had been
proposed by which an exhibit might be admitted at trial);
see also Shipman v. Carrasco, No. 15-CV-167-BRB-KBM,
2016 WL 10100732, at *2 (D.N.M. July 19, 2016)
(“Significantly, the objection contemplated by [the
2010 amendment to rule 56(c)(2)] is not that the material
‘has not' been submitted in admissible form, but
that it ‘cannot' be.”). For these reasons,
the Court overrules Defendant's evidentiary objections to
the Purchase Order and will consider it in connection with
this Motion [#78].
respect to the other 24 exhibits, Defendant essentially makes
a blanket statement that they have not been properly
authenticated, lack foundation, and are hearsay.
Reply [#97] at 2. Defendant provides no further
explanation of what specific objections apply to each
exhibit, which consist of varied documents including: the
agreement between Plaintiff & HAI, Plaintiff's
Warranty and Repair Program Standard Terms and Conditions,
emails, internet printouts, deposition excerpts, reports on
Defendant's letterhead, interrogatory responses, and
more. See Reply [#97] at 2. As discussed above, with
respect to authentication, “[t]here is no requirement
that the evidence be actually admitted or authenticated for
the Court to consider it on a motion for summary judgment, as
long as it would be admissible if duly authenticated.”
Digital Advert. Displays, Inc. v. Newforth Partners,
LLC, No. 12-CV-00682-WJM-MEH, 2014 WL 1292931, at *3 (D.
Colo. Mar. 31, 2014). Similarly, with respect to
Defendant's foundation and hearsay objections,
Fed.R.Civ.P. 56(c)(2) provides that parties may object that
cited material “cannot be presented in a form that
would be admissible in evidence.” Defendant has not
objected that the material cannot be presented in an
admissible form, and the Court sees no reason why the
documents would not be admissible at trial. Thus,
Defendant's vague objections to Plaintiff's Exhibits
2-6 and 8-26 are overruled.
Motion for Summary Judgment
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment
should enter if the pleadings, the discovery and disclosure
materials on file, and any affidavits show “that there
is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” An
issue is genuine if the evidence is such that a reasonable
jury could resolve the issue in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of
the case under the governing substantive law. Id.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable jury could find in his favor. See
Anderson, 477 U.S. at 248; Simms v. Okla. ex rel.
Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go
beyond the allegations and denials of his pleadings and
provide admissible evidence, which the Court views in the
light most favorable to him. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.
1995) (citing Celotex, 477 U.S. at 324). Conclusory
statements based merely on conjecture, speculation, or
subjective belief are not competent summary judgment
evidence. Bones v. Honeywell Int'l, Inc., 366
F.3d 869, 875 (10th Cir. 2004). The nonmoving party's
evidence must be more than “mere reargument of [his]
case or a denial of an opponent's allegation” or it
will be disregarded. See 10B Charles Alan Wright, et al.,
Federal Practice and Procedure § 2738 at 356
(3d ed. 1998).
Choice of Law
Court has diversity jurisdiction in this matter pursuant to
28 U.S.C. § 1332. See Notice of Removal [#1];
Compl. [#2]; Scheduling Order [#41] at 2.
Based on the parties' briefing,  they appear to agree that
Colorado law controls this diversity action. Therefore, the
Court applies Colorado substantive law. See Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)
(applying choice of law rules of the forum state in diversity
case); TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d
1175, 1180-81 (10th Cir. 2007) (“The parties agree that
the applicable substantive law is that of Colorado . . . . We
therefore assume that this case is governed by Colorado
Breach of Contract
recover on a breach of contract claim, a party must prove (1)
the existence of a contract, (2) that the party performed its
duties under the contract, (3) that the other party failed to
perform its contractual obligations, and (4) damages
resulting from the breach. W. Distrib. Co. v.
Diodosio, 841 P.2d 1053, 1058 (Colo. 1992). Here,
Defendant argues that summary judgment should enter in its
favor because Plaintiff has not sufficiently shown the
existence of a contract on which a claim for breach of
contract could be based. Motion [#78] at 10-12.
Plaintiff argues that the March 26, 2013 Purchase Order for
the chips constituted an offer, and that the shipment of the
chips constituted an acceptance. Response [#93] at
Colorado Uniform Commercial Code (Colo. Rev. Stat. §
An order or other offer to buy goods for prompt or current
shipment shall be construed as inviting acceptance either by
a prompt promise to ship or by the prompt or current shipment
of conforming or nonconforming goods, but such a shipment of
nonconforming goods does not constitute an acceptance if the
seller seasonably notifies the buyer that the shipment is
offered only as an accommodation to the buyer.
argues that this statute should be entirely disregarded
because the Central District of California ruled that
“the parties have exchanged conflicting forms, ”
and that therefore Section 2207 of the California Commercial
Code applies. Reply [#97] at 5. However, the
California court made that ruling on considering whether the
parties had agreed to an arbitration clause, which is not
relevant to the issue currently before this Court. See
C.D. Cal. Order [#93-22] at 4-6. Furthermore, Section
2207 of the California Commercial Code is clearly not
relevant here, as that section pertains solely to the issue
of whether additional terms included in the
acceptance of a contract are controlling. Lastly, as
determined above, the Court applies Colorado substantive law
in this lawsuit. Thus, the Court finds that Colo. Rev. Stat.
§ 4-2-206 applies here, and that there is a genuine
issue of material fact regarding whether the Purchase Order
and Defendant's subsequent shipment of the goods
respectively constitute the requisite offer and acceptance to
constitute formation of a contract. See Colo. Rev.
Stat. § 4-2-206; see also LiquidMagnetix
Corp. v. Therma-Stor LLC, No. 13-cv-3151-WJM-KMT, 2014
WL 1389984, at *2 (D. Colo. April 9, 2014) (finding a
contract where purchase orders constituted offers and
shipment of the goods constituted acceptance). To the extent
that Defendant argues that Revision 3 of the Purchase Order
does not represent the terms ...