United States District Court, D. Colorado
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's corrected
partial motion for summary judgment. (ECF No. 1018.) The
motion has been fully briefed. (ECF Nos. 1020, 1024.) The
Court grants the motion for the reasons below.
judgment is appropriate only if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Gutteridge v.
Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018). Applying
this standard requires viewing the facts in the light most
favorable to the nonmoving party and resolving all factual
disputes and reasonable inferences in its favor. Cillo v.
City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir.
2013). However, “[t]he mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Scott v. Harris, 550 U.S. 372, 380
(2007). Whether there is a genuine dispute as to a material
fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or is so
one-sided that one party must prevail as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d
1132, 1136 (10th Cir. 2000). A fact is “material”
if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so
contradictory that if the matter went to trial, a reasonable
jury could return a verdict for either party.
Anderson, 477 U.S. at 248.
recitation of the relevant background suffices for present
purposes; a longer version of the history of this case can be
found in the Court's order on September 4, 2019
(“September 4 Order”) (ECF No. 1017).
February 12, 2016, Defendant ordered 55 ultraviolet
germicidal irradiation (“UVGI”) kits at a cost of
$1, 575 each from JKA Company (“JKA”). (ECF No.
1025 at ¶¶ 11, 64.) On February 18, Plaintiff
acquired JKA's assets, including Defendant's February
12 order. (Id. at ¶ 67.) On March 28, 2016,
Defendant informed Plaintiff that it was amending its order
to 49 kits instead of 55. (Id. at ¶ 11.)
Plaintiff completed the order in multiple shipments and sent
Defendant a final invoice for $52, 754.63, the cost of 33
UVGI kits and a shipping fee. (Id. at ¶¶
12, 13, 82.)
September 9, 2016, Defendant sent Plaintiff a partial payment
of just $13, 379.63, explaining that it had conducted an
audit of its past transactions with Plaintiff and JKA (going
back to 2012) and determined that it “had issued
payment of $39, 375 for components that [Defendant] could not
verify it had actually received.” (Id. at
¶ 78.) Defendant had previously asked Plaintiff
“for proof of shipment of the products on . . . three
invoices from JKA” in 2013 and 2014 which totaled $39,
375. (Id. at ¶ 84.) The parties disagree on
whether the documents Plaintiff ultimately provided to
Defendant in response resolve the alleged “billing
discrepancy.” (See Id. at ¶ 83.)
refused to accept the partial payment and later filed this
lawsuit. In the September 4 Order, the Court granted summary
judgment in favor of Defendant on all of Plaintiff's
claims except for its breach of contract claims and allowed
Plaintiff to file its corrected motion for summary judgment,
which sought summary judgment on the breach of contract
claims as well as other claims on which Defendant had been
granted summary judgment. Defendant filed a response
addressing only the claims for breach of contract (ECF No.
1020), and Plaintiff filed a reply (ECF No. 1024).
state a claim for breach of contract under Colorado law, a
plaintiff must show (1) the existence of a contract, (2)
performance by the plaintiff or some justification for
nonperformance, (3) failure to perform the contract by the
defendant, and (4) resulting damages to the plaintiff. W.
Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo.
1992) (en banc).
contends it is entitled to summary judgment on its breach of
contract claims because it is undisputed that the parties had
a contract for 49 UVGI kits, Plaintiff performed by
delivering the kits, and Defendant refused to perform by
paying in full the final invoice, resulting in damages to
Plaintiff. Defendant first argues that there is a genuine
issue of material fact precluding summary judgment because it
cannot verify that it received 25 UVGI kits that were
invoiced by JKA in 2013 and 2014. Defendant also argues that
the September 4 Order precludes granting summary judgment in
favor of Plaintiff because there the Court held that genuine
issues of material fact precluded granting summary judgment
in Defendant's favor on the breach of contract claims.
The Court rejects both these arguments and concludes that
Plaintiff is entitled to summary judgment.
Defendant has not adduced any evidence to support its
contention that it paid JKA for 25 UVGI kits (costing $39,
375) that it never received. According to Defendant,
“[t]he $39, 375 billing discrepancy that [it]
discovered related to invoices that [it] paid to JKA but for
which [Defendant] could not find proof of having received a
shipment or the related inventory listed on the
invoices.” (ECF No. 1025 at ¶ 79.) However, an
alleged factual dispute between the parties is
insufficient to defeat a properly supported motion for
summary judgment. See Scott, 550 U.S. at 380. The
question is “whether the evidence presents a
sufficient disagreement to require submission to a
jury.” Anderson, 477 U.S. at 251-52 (emphasis
added). Here, Defendant alleges merely that it lacks proof of
having received shipment with respect to three invoices that
it paid to JKA. But Defendant presents no evidence to support
its position that it paid for more UVGI kits than it
received, and the Court finds that its “lost
receipts” defense is insufficient to raise a genuine
issue as to whether Plaintiff is entitled to payment in full
on its final invoice.
from its lack-of-proof argument, Defendant relies on a
spreadsheet it created in 2016 that purports to document its
transactions with Plaintiff and JKA going back to 2012.
Defendant's continued reliance on the spreadsheet is
puzzling in light of the September 4 Order. There, the Court
considered the spreadsheet in connection with Defendant's
motion for summary judgment and concluded that “[b]y no
means does it establish the relevant transaction history as a
matter of fact, ” and that it “sheds absolutely
no light on whether Defendant's failure to perform by
paying the final invoice is justified.” (ECF No. 1017
at 6-7.) Defendant has not clarified matters in its response
to Plaintiff's motion for summary judgment and continues
to proffer reasons for nonpayment that are incoherent and
inconsistent with one another as well as the record. For
example, in an e-mail sent to Plaintiff on September 23,
2016, Defendant claimed a billing discrepancy of $33, 352.50
on the ground that it had ordered 543 UVGI kits but been
billed for 544. (ECF No. 1025 at ¶ 8.) This argument is
incoherent given the undisputed fact that UVGI kits cost $1,
575. Elsewhere in the record, Defendant has claimed that it
was billed for 564 UVGI kits but received only 544.
(Id. at ¶ 77.) This argument appears to be
inconsistent with the preceding one, and both are patently
inconsistent with the ...