Opinion
Case No. 2:01CV00389PGC
May 12, 2003
Blake S. Atkin, Counsel for Plaintiff, ATKIN HAWKINS, P.C., Salt Lake City, Utah.
Paul D. Veasy (3964), Kristine E. Johnson (7190), PARSONS BEHLE LATIMER, Attorneys for Defendant, Salt Lake City, Utah.
ORDER GRANTING IN PART AND DENYING IN PART PCS SALES' MOTION FOR SUMMARY JUDGMENT ON DAMAGES
Defendant PCS Sales (USA), Inc.'s Motion for Summary Judgment on Damages came before the Court on February 25, 2003. Present for the plaintiff were Blake Atkin and Lonn Litchfield of Atkin Hawkins. Present for the defendant was Paul D. Veasy and Kristine B. Johnson of Parsons Behle Latimer. Based upon the record evidence before the Court, including the oral argument of the parties and the briefing on this motion, the Court made the following findings:
(1) Spoliation. The plaintiff has not met the requisite elements of the adverse spoliation inference. Based upon the evidence before the Court, defendant disposed of certain categories of documents pursuant to routine record-keeping practices, and did not do so in bad faith.
(2) Prill deliveries. Plaintiff shall be permitted to move forward with its claim for damages in the amount of $1,169,513.40 associated with deliveries of allegedly defective prills from 1995 to 1998.
(3) Reallocation of contracts at the LTV mine. Plaintiff has failed to create a disputed issue of material fact with respect to the requisite elements of its claim for lost profits in the amounts of $189,126 and $1,025,620 associated with the "reallocation" of its contracts with Cleveland Cliffs for the LTV mine in 1997 and 1998, and January 1, 1999 through February 10, 1999. Specifically, the undisputed evidence before the Court demonstrates that any reduced percentage of orders from Cleveland Cliffs received by plaintiff was attributable to reasons unrelated to defendant, as testified to by Thomas Smolich; thus, plaintiffs claim that it would have received its full contract percentage absent alleged conduct of PCS Sales is unduly speculative. Plaintiff will, however, be permitted to pursue its claim for damages in the form of "reallocation" for the LTV mine for the period beginning February 10, 1999 and ending March 1, 1999.
(4) Lost profits based upon the new 1999 Cleveland Cliffs contract. Plaintiff has failed to create a disputed issue of material fact with respect to the requisite elements of its claim for damages in the form of future lost profits in the amount of $10,450,000 associated with the Cleveland Cliffs' new 1999 contract. The undisputed evidence before the Court demonstrates that plaintiff failed to obtain the contract for reasons unrelated to defendant; among other things, Cleveland Cliffs believed that plaintiff did not have the capacity to fill its needs. In light of this Thus, plaintiffs claim for damages is unduly speculative, and lacking in reasonable certainty.
(5) Ammonium nitrate solution deliveries. Plaintiff shall be permitted to move forward with its claim for damages in the amount of $8,315.52 associated with allegedly defective deliveries of hot ammonium nitrate solution from November 1998 to January 1999.
(6) Destroyed emulsion. Plaintiff shall be permitted to move forward with its claim for damages in the amount of $64,000 associated with allegedly destroyed emulsion.
(7) Clean-up costs. Plaintiff shall be permitted to move forward with its claims for clean-up costs in the amounts of $427.00, $50,000, and $650,000.
(8) Lost profits based upon Minnesota operations. Plaintiff has failed to create a disputed issue of material fact with respect to the requisite elements of its claim for damages in the form of future lost profits associated with plaintiffs Minnesota operations, and such claim is unduly speculative.
(9) Goodwill. Plaintiff has failed to create a disputed issue of material fact regarding its claim for damages in the amount of $70,000 associated with the alleged loss of goodwill, and such claim is unduly speculative.
(10) Punitive damages. Plaintiff has failed to create a disputed issue of material fact regarding its claim for punitive damages, and such claim is unduly speculative.
Based upon the foregoing findings, and other good cause appearing, it is hereby ORDERED pursuant to Rule 52(a):
1. Defendant's motion is granted in part and denied in part. Specifically, defendant's motion is granted with respect to spoliation, and damages for reallocation of contracts at the LTV mine for the years 1997, 1998, and January 1, 1999 to February 10, 1999, lost profits based upon the new 1999 Cleveland Cliffs contract, lost profits based upon Minnesota operations, goodwill and punitive damages.
2. The parties shall bear their own fees and costs in conjunction with this motion.