Opinion
Case No. 4:20-cv-00320-SMR-SBJ
2022-08-15
Mladen MILJAS, Plaintiff, v. GREG COHEN PROMOTIONS, LLC, and Greg Cohen, Defendants.
Michael A. Dee, Brian S. McCormac, Thomas D. Story, Brown Winick Graves Gross and Baskerville P.L.C., Des Moines, IA, for Plaintiff. Timothy N. Lillwitz, Blake Hanson, Bradshaw Fowler Proctor & Fairgrave, P.C., Des Moines, IA, David Alan Schrader, Pro Hac Vice, Paykin Krieg & Adams LLP, New York, NY, for Defendants.
Michael A. Dee, Brian S. McCormac, Thomas D. Story, Brown Winick Graves Gross and Baskerville P.L.C., Des Moines, IA, for Plaintiff. Timothy N. Lillwitz, Blake Hanson, Bradshaw Fowler Proctor & Fairgrave, P.C., Des Moines, IA, David Alan Schrader, Pro Hac Vice, Paykin Krieg & Adams LLP, New York, NY, for Defendants. ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT STEPHANIE M. ROSE, CHIEF JUDGE
This case arises out of a contractual dispute between Plaintiff Mladen Miljas and Defendants Greg Cohen Promotions, LLC ("GCP") and Greg Cohen, the proprietor of GCP. Miljas is a professional heavyweight boxer from Canada. GCP is a boxing promotional company formed under New Jersey state law and Cohen is a resident of New Jersey. This lawsuit was filed in the Southern District of Iowa pursuant to a venue-selection clause in the contract at issue. The dispute arises out of Miljas's allegation that GCP has failed to perform under the contract, specifically satisfying its obligation to arrange the minimum of boxing matches on behalf of Miljas. Miljas's position is that he validly terminated the contract and is no longer bound to exclusively fight in matches arranged by GCP. The Court previously granted a preliminary injunction requested by Miljas, which prohibited GCP and Cohen from undertaking certain actions which to Miljas from pursuing his boxing career during the pendency of this case. Currently before the Court is a partial Motion for Summary Judgment by Miljas, requesting summary judgment for liability on his breach of contract claim and a declaration that his agreement with GCP is no longer in effect.
I. BACKGROUND
The facts in this Section are drawn from Plaintiff's Statement of Material Facts in Support of Motion for Summary Judgment ("Pl. SMF"), the accompanying appendix, and other documents in the record. This is because Defendants' resistance fails to comply with the local rules, which require a party resisting a motion for summary judgment to file "[a] response to the statement of material facts in which the resisting party expressly admits, denies, or qualifies each of the moving party's numbered statements of fact, filed as an electronic attachment to the brief under the same docket entry." LR 56(b)(2). They are also required to file their own statement of additional material facts which they contend precludes the entry of summary judgment. LR 56(b)(3). Defendants have done neither. The local rules further note that "[t]he failure to respond to an individual statement of material fact, with appropriate appendix citations, may constitute an admission of that fact." LR 56(b). Where the facts are conspicuous, the Court draws on Defendants' Appendix in Connection with its Resistance for Partial Summary Judgment. [ECF No. 105-2]; see Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1032 (8th Cir. 2007) ("Local Rule [56] exists to prevent a district court from engaging in the proverbial search for a needle in the haystack." (citation omitted)). Furthermore, it is apparent that Defendants' brief has been substantially copied from previously filings in this case, which Plaintiff helpfully catalogues. See [ECF No. 106 at 2]. Thus, not only is much of Defendants' resistance duplicative and redundant, but it is also full of irrelevant assertions for the issues before the Court on this Motion.
A Factual Background
In June 2018, Miljas entered into an "Exclusive Boxing Promotional Agreement" ("Agreement") with GCP, providing the company with "the sole and exclusive worldwide right to secure all professional boxing bouts . . . and promote such bouts during the term." [ECF Nos. 42-1 ¶ 1]. The Agreement's effective date is June 11, 2018, with an initial term of three years and provisions for automatic extensions, none of which are relevant here. [ECF No. 42-1 ¶ 2]. The term could be extended under two other provisions that provide for an extension in the event Miljas was permanently or partially disabled or entered a period of temporary retirement. Id. ¶ 20. "Disability" is not explicitly defined in the Agreement, but it does provide that if Miljas was not "legally permitted to fight within the United States of America, the period of his ineligibility shall be deemed a disability and this Agreement shall be extended until his eligibility is re-established." Id. ¶ 30.
For its part, GCP is required by the Agreement to use reasonable efforts to promote or arrange a minimum of four bouts within each calendar year. Id. ¶ 3. The bouts arranged according to the Agreement, must be "commensurate with [Plaintiff's] level of ability, ranking, stature in the boxing industry and marketability." Id. The Agreement specifies that the dates and sites of arranged bouts are "in the sole and absolute discretion of [GCP] and against such opponents as mutually agreed upon by [Miljas and GCP]." Id. ¶ 5. It further provides that Miljas's approval of opponents "shall not be unreasonably withheld." Id.
Miljas fought in a total of four bouts arranged by GCP under the Agreement. The first bout took place on September 8, 2018, when he fought 42-year-old Travis Fulton, whom Miljas defeated in a first round knockout. [ECF No. 100-3 ¶ 33] (Pl. SMF); [ECF No. 105-1 ¶ 17] (Cohen Decl.). On January 18, 2019, GCP arranged a bout between Miljas and Wayman Carter which Miljas also won by knockout. [ECF No. 100-3 ¶ 37]; [ECF No. 105-1 ¶ 21]. A third bout occurred 45 days after the Carter fight, on March 2, 2019; this time Miljas fought and defeated Matthew Greer. [ECF No. 100-3 ¶ 38]; [ECF No. 105-1 ¶ 22]. The last boxing match in which Miljas has fought to date was against Aaron Chavers on August 9, 2019, which was another victory for Miljas. [ECF No. 100-3 ¶ 40]; [ECF No. 105-1 ¶ 23].
After the Chavers bout, Miljas encountered a potential issue with his immigration status and he returned to Canada in late September or early October 2019. [ECF No. 100-3 ¶ 14]. In late December, Miljas received approval for a work visa. Id. During this time period, GCP did not assert any rights to extend the term of the Agreement pursuant to the "disability clause" of section 30. See [ECF No. 42-1 ¶ 30] (providing "[i]f the Boxer should not be legally permitted to fight within the United States of America, the period of his ineligibility shall be deemed a disability and this Agreement shall be extended until his eligibility is re-established."). The Court heard testimony at the injunction evidentiary hearing that—rather than assert a right to extend the Agreement—GCP arranged a bout in Miljas's Canadian hometown for October 19, 2019. [ECF No. 100-3 ¶ 46]; [ECF No. 105-1 ¶ 28].
The bout in Miljas's hometown was set against Ruann Visser. The Visser bout was conveyed to Miljas during a phone conference with Cohen, Miljas's then-trainer Eddie Mustafa Muhammad, and his then-manager Steven Heid. [ECF No. 100-3 ¶ 43]. The parties dispute whether the total purse was disclosed to Miljas. Cohen testified at the injunction hearing that Miljas was told he would get his "contractual minimum" for an eight-round fight, whereas Heid testified that money was not discussed. Id. ¶¶ 46-47. The proposal was not provided in writing. Id. ¶ 49. Miljas did not accept the proposal, maintaining he was not provided enough time to train for an opponent such as Visser, who according to Miljas would have been his toughest opponent yet. Id. ¶¶ 50-53. He asserts it would typically require a minimum of six weeks and optimally twelve weeks to prepare for such a bout. Id. ¶¶ 53-54. GCP claims to have proposed the Visser bout again in January 2020, but the facts are unclear whether this was conveyed to Miljas by Heid or GCP and Miljas denies receiving the proposed bout. Id. ¶ 62.
On March 11, 2020, Miljas emailed Cohen to relay his unhappiness with the number of bouts arranged by GCP. Id. ¶ 72. GCP did not respond to the email. Id. ¶ 73. Miljas sent a breach of contract notice to GCP on May 21, 2020, citing GCP's failure to perform its obligations under the Agreement, which triggered a 30-day period for GCP to cure its breach. Id. ¶ 74. The stated justification for the breach notice was GCP's failure to schedule the minimum number of bouts and its failure to find suitable opponents, both of which are required by Section 3 of the Agreement. Id. ¶¶ 76-78. GCP's response to the breach notice was a letter from its counsel sent on June 19, 2020, outlining why the company was not in breach of the Agreement. Id.¶ 81. GCP claimed it was in compliance with its obligations under the Agreement but, at the same time, asserted its performance was excused due to the coronavirus pandemic. Id.
On June 21, 2020, two days after receiving GCP's response, Miljas sent a notice of termination, citing GCP's failure to perform its obligations under Section 3 of the Agreement and Miljas's right to terminate under Section 17. Id. ¶ 84.
B. Procedural Background
On October 15, 2020, Miljas filed suit against GCP and Greg Cohen alleging claims for breach of contract, tortious interference with existing and prospective contracts, defamation, fraudulent inducement, fraud, and violation of the Ali Act. [ECF No. 7]. He also sought a declaratory judgment that the Agreement has been validly terminated. Id. Defendants filed a motion to dismiss on December 10, 2020, seeking to dismiss all claims against Cohen individually and the claims against GCP for tortious interference, defamation, fraud, and fraudulent inducement. [ECF No. 8].
Miljas filed a motion for a preliminary injunction on December 22, 2020. [ECF No. 11]. In it, he requested the Court enjoin Defendants from contacting Miljas without the presence of his counsel; contacting third parties about Miljas's contractual status with GCP; or making defamatory statements about him. [ECF No. 11]. The Court heard oral argument and held an evidentiary hearing on the motion. At the hearing, the Court heard live testimony from Miljas, Cohen, and Heid. [ECF Nos. 26; 33]. On April 30, 2021, the Court granted the motion for preliminary injunction, enjoining Defendants from contacting Miljas, or contacting third parties with an intent to interfere with existing or potential business relationships with Miljas. [ECF No. 39].
On May 25, 2021, Defendants filed an answer to the amended complaint, counterclaims, and a third-party claim. [ECF No. 44]. In its counterclaims, GCP sought a declaratory judgment and specific performance by Miljas pursuant to the Agreement. Id. at 16-19. GCP also alleged Miljas breached his obligations under the Agreement and sought monetary damages. GCP also brought a third-party claim against a "John Doe" and "ABC Corp.," alleging that an unknown third-party was violating GCP's exclusive right to promote Miljas. Id. at 21-22. The third-party complaint alleged, "it is unknown who such persons are that have been retained, or that will be retained" by Miljas but they "will be named and substituted when their identity becomes known." Id. at 22-23.
Shortly after GCP filed the third-party complaint, Miljas filed a motion to strike. [ECF No. 50]. He objected that the third-party complaint violated the Court's injunction, among other claims. [ECF No. 50-1]. Miljas asked the Court to hold Defendants in contempt for violating the injunction. The Court dismissed the third-party complaint, reasoning that it was an improper third-party complaint and agreeing with Miljas that it violated the injunction. [ECF No. 59 at 3-6]. The Court declined to impose additional sanctions, holding that a contempt finding would be excessive. Id. The Court agreed with Miljas that "the serious legal and procedural deficiencies underlying the [third-party] claim lends credence to Plaintiff's theory that the filing was simply intended to intimidate interested third parties from promoting Plaintiff's career." Id. at 7. The order made clear that "the Court will not tolerate similar violations of the injunction in the future." Id.
After discovery, Miljas filed this partial Motion for Summary Judgment. [ECF No. 100]. Miljas asserts that no genuine dispute of material fact exists as to liability under Count I of his Amended Complaint for breach of contract, as well as Count II for a declaratory judgment. He further claims that he is entitled to summary judgment on both counterclaims for declaratory relief and specific performance, and breach of contract. Miljas argues that the Agreement provides that GCP must pay his attorney's fees and expenses related to this litigation. He does, however, ask the Court to leave the issue of damages for trial. Id.
II. ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper 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); Paulino v. Chartis Claims, Inc., 774 F.3d 1161, 1163 (8th Cir. 2014). "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
To preclude the entry of summary judgment, a party must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The evidence is viewed "in the light most favorable to the nonmoving party," which includes drawing all reasonable inferences in that party's favor. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015) (quoting Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 541 (8th Cir. 2014)). At the summary judgment stage, the Court's function is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. "[U]nsupported self-serving allegations" are not sufficient on summary judgment absent "probative evidence that would permit a finding in [plaintiff's] favor, without resort to 'speculation, conjecture, or fantasy.' " Reed v. City of St. Charles, 561 F.3d 788, 790-91 (8th Cir. 2009) (internal citations omitted). The proper inquiry on summary judgment is "whether the evidence present a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, Inc., 477 U.S. at 251-52, 106 S.Ct. 2505.
B. Breach of Contract
The first claim on which Miljas moves for summary judgment is Count I for breach of contract. He argues that GCP breached its obligations under Section 3 of the Agreement to arrange a minimum of four bouts per year. Miljas's claim for breach of contract turns on whether GCP failed to perform this particular obligation. Miljas asserts that because GCP has only arranged a total of four bouts throughout the entirety of the Agreement, GCP breached its obligations. If GCP did breach their obligations to arrange a minimum number of bouts, then Miljas was contractually authorized to terminate the Agreement and he would be entitled to summary judgment in his favor on GCP's counterclaim for breach of contract.
Defendants respond that GCP is not in breach of the Agreement because it arranged a sufficient number of bouts to meet its contractual obligation. It claims that Miljas is responsible for the paucity of bouts since signing with GCP because he improperly declined to engage in offered bouts. [ECF No. 105-1 at 11]. They also advance the argument that GCP's performance should be excused for varying reasons. [ECF No. 105].
1. Breach of Contract Standard
A claim for breach of contract requires a party to establish: (1) existence of a contract; (2) the terms and conditions of the contract; (3) the performance of its obligations under the contract; (4) the defendant's breach of the contract; and (5) the breach caused damages. Iowa Mortg. Ctr. L.L.C. v. Baccam, 841 N.W.2d 107, 110-111 (Iowa 2013) (citation omitted). For purposes of this Motion, only the second, third, and fourth elements are at issue. Neither party disputes the existence of a contract; and Miljas requests that damages be reserved for the fact-finder at trial should he prevail on the issue of liability.
2. Section 3 Requirements
Miljas argues that GCP failed to perform its obligations under Section 3 of the Agreement to arrange a sufficient number of bouts. That section provides, in relevant part:
Promoter will use reasonable efforts to promote or arrange the staging of, and Boxer shall engage in a reasonable number of bouts, commensurate with Boxer's level of ability, ranking, stature in the boxing industry and marketability. Notwithstanding the foregoing, Promoter agrees to promote or arrange for the staging of a minimum of four (4) bouts in each calendar year of this Agreement.[ECF No. 42-1 ¶ 3]. Between June 11, 2018, when Miljas and GCP signed the Agreement, and June 21, 2020, when Miljas provided his notice of termination, GCP arranged a total of four bouts on behalf of Miljas. Defendants do not offer any argument that GCP actually satisfied the numerical requirement. Whether considered on a rolling year (June 2018 to June 2019) or calendar year, Miljas did not engage in four bouts within one year.
Although already discussed earlier, the sequence of bouts under the Agreement was:
• September 8, 2018: Travis Fulton
• January 18, 2019: Wayman Carter
• March 2, 2019: Matthew Greer
• August 9, 2019: Aaron Chavers
In response to the claim GCP did not satisfy its Section 3 obligations, Defendants provide a potpourri of arguments. First, they point to language in the Agreement they claim qualifies its duty to arrange a minimum level of bouts. Second, Defendants contend that Miljas himself was responsible for not satisfying the numerical requirement through unavailability and unreasonable withholding of approval of opponents. Third, Defendants claim that the pause in boxing events during the early months of the COVID-19 pandemic should excuse their performance.
a. "Calendar Year"
The first issue is the definition of a "calendar year" under the Agreement. This issue is relevant because the parties do not agree what constitutes a "calendar year." Miljas's position is the "calendar year" contained in the Agreement refers to a "rolling year," beginning at the date of signing, June 11, 2018, and continuing for 365 days. [ECF No. 100-2 at 15-16]. In support of his argument, Miljas relies on communications he had with GCP after signing the Agreement and his assertion that using the traditional definition of "calendar year" would yield absurd results.
Miljas points to an email he sent to Greg Cohen on March 11, 2020, expressing his unhappiness "with the amount of fights I've been having [,] as in both years of our contract I have not received the contractual number of fights I was supposed to in each calendar year." [ECF No. 100-3 ¶ 72]. He says this evinces his understanding that the Agreement operated on a rolling year.
His other contention is that, if the Agreement did not contemplate a "rolling" year, then GCP would have had no obligation to arrange bouts for the first six months of the Agreement. The Agreement was signed in June 2018. According to Miljas, such an interpretation would result in GCP having an exclusive right to promote Miljas between June 11, 2018 and December 31, 2018, without any burden to perform.
Defendants do little to address Miljas's argument regarding the proper interpretation of "calendar year." The provide a single conclusory sentence asserting "Miljas's contention that this Court should use a strict calendar year measure for when fights were to occur should be rejected." [ECF No. 105 at 29]. No further argument is presented by Defendants on the issue.
The Iowa Supreme Court relies on rules of contract interpretation from the Restatement (Second) of Contracts. Homeland Energy Sols., LLC v. Retterath, 938 N.W.2d 664, 687 (Iowa 2020) (citation omitted). Contract interpretation is the process of "determining the meaning of the words used by the parties in a contract." Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 436 (Iowa 2008). "The cardinal rule of contract interpretation is to determine what the intent of the parties was at the time they entered into the contract." Id. That being said, "the words of an integrated agreement remain the most important evidence of intention." Alta Vista Props., LLC v. Mauer Vision Ctr., PC, 855 N.W.2d 722, 727 (Iowa 2014) (citation omitted). A contract is to be interpreted as a whole so it is assumed that no part of it is superfluous; "an interpretation which give a reasonable, lawful, and effective meaning to all terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect." Fashion Fabrics of Iowa, Inc. v. Retail Invs. Corp., 266 N.W.2d 22, 26 (Iowa 1978) (citing Restatement (Second) of Contracts § 229).
The contractual definition of a "calendar year" has been considered by courts previously. The overwhelming majority conclude that "calendar year" refers to the period of time beginning January 1 through December 31. See Sawyer v. Steinman, 148 Iowa 610, 126 N.W. 1123, 1124 (1910) (holding the word "year' is presumptively equivalent to 'year of our Lord' . . . commencing January 1st and ending December 31."); Tibbles v. Tchrs. Ret. Sys. of Ga., 297 Ga. 557, 775 S.E.2d 527, 531 (2015); Hawksley v. New Hampshire Interscholastic Athletic Ass'n, Inc.,111 N.H. 386, 285 A.2d 797, 798 (1971) (observing that "[a]ccording to common usage, a 'calendar year' is a 'readily understandable term,' describing a year which commences on January 1 and ends on December 31, as indicated both by decision and the dictionary." (internal citations omitted)); Jensen v. Johnson Cnty. Youth Baseball League, 838 F. Supp 1437, 1441 (D. Kan. 1993) ("The literal meaning of the term 'calendar year' is the period of twelve months between January 1 and December 31."). The language referring to "calendar year" is unambiguous and the Court must adhere to it. See Draper v. Wellmark, Inc., 478 F. Supp. 2d 1101, 1108 (N.D. Iowa 2007) (finding "[t]he court is constrained by the unambiguous language in the [contract].").
Miljas urges that he understood the provision referring to a "calendar year" as a rolling year, citing his email to Cohen. When interpreting a contract provision, it is the intent of the parties that controls. Kibbee v. State Farm Fire and Cas. Co., 525 N.W.2d 866, 868 (Iowa 1994) (citation omitted). The intent of the parties is determined by the contract language unless it is ambiguous. Id. (citation omitted).
Ambiguity exists when, after application of principles of contract interpretation, a genuine uncertainty remains as to which one of two or more meanings is the proper one. A mere disagreement between the parties as to the meaning of policy language does not establish an ambiguity. Only when the policy language is susceptible to two reasonable interpretations do we find an ambiguity.Id. (internal citations and emphasis omitted). Here, Miljas argues that the entire context of the Agreement lends itself to the interpretation of a rolling year. Otherwise, he claims that if the "calendar year" referenced in the Agreement did not begin until January 1, then GCP would not have been obligated to promote him for the first six months of the Agreement. [ECF No. 100-2 at 15-16]. It is not obvious from where Miljas gets such a limitation. There is no clause allowing for a pro-rated number of minimum bouts. It would be equally absurd that a contract signed in June would not require performance from one of the parties until the next calendar year begins. Additionally, Section 3 requires that GCP use "reasonable efforts" to arrange a "reasonable number of bouts." Surely, a failure to arrange any bouts during the first six months of the Agreement would run afoul of the obligation. In short, the language in Section 3 regarding a "calendar year" is unambiguous.
However, only four bouts occurred throughout the two-year timespan between Miljas's signing the Agreement and his notice of breach. The four bouts did not occur within a "year" regardless of the definition of "year." Thus, to prevail on summary judgment, Miljas must establish that he did not unreasonably withhold his approval of any opponents or be otherwise contractually responsible for GCP's failure to perform.
b. "Reasonable Efforts"
Defendants initially attack the four-bout minimum described in Section 3 as not mandatory but aspirational. They insist that GCP's requirements under Section 3 are subject to the caveat that it "will use reasonable efforts to promote or arrange the staging of . . . a reasonable number of bouts commensurate with Boxer's level of ability, ranking, stature in the boxing industry and marketability." [ECF No. 105 at 19]. Under their interpretation, the only requirement of GCP is to use reasonable efforts to arrange a reasonable number of bouts. However, Defendants fail to address the very next sentence in Section 3, which forecloses their theory, "[n]otwithstanding the foregoing, Promoter agrees to promote or arrange for the staging of a minimum of four (4) bouts in each calendar year of this Agreement." [ECF No. 42-1 ¶ 3]. The language in Section 3 expressly provides that four bouts are the minimum to be arranged by GCP. The language relied upon by Defendants appears to contemplate that GCP must use "reasonable efforts" to promote more than four bouts, rather than relying on the minimum identified in the Agreement.
c. Unavailability
Next, Defendants claim that any failure to satisfy the minimum number of bouts required by the Agreement is the fault of Miljas, not GCP. Defendants offer a couple of examples of his unavailability which they claim obstructed GCP's performance.
i. March 2019 to August 2019 Delay
Defendants assert that the delay between the third and fourth bout, March 2, 2019 (Matthew Greer) and August 9, 2019 (Aaron Chavers), was caused by Miljas and his manager Heid. During this five-month period, Miljas relocated from Canada to Las Vegas. Defendants claim that Miljas also requested GCP not schedule any fights between April and August 2019 to allow him to work with his new trainer, Muhammad. [ECF No. 105-1 ¶ 23] (Cohen Decl.). Muhammad submitted a declaration stating that he had agreed with Miljas in April 2019 that he should not fight until the beginning of August, allowing him to return from Japan and train with Miljas for a few weeks. [ECF No. 105-2 at 25] (Muhammad Decl.). Heid provided an affidavit to the same effect, stating that he asked GCP to delay any bouts until August 2019. [ECF No. 105-2 at 30] (Heid Decl.). In support of his motion for a preliminary injunction, Miljas submitted a declaration emphatically denying that he requested any pause in bouts and testified similarly at the evidentiary hearing. [ECF Nos. 28-1 ¶ 3; 34]. He says he was "very clear" with GCP that he wanted to "stay busy" and was "eager" for bout opportunities. [ECF No. 28-1 ¶ 3]. There does not appear to be any contemporaneous documentation whether Miljas requested GCP pause bouts during the timeframe. The Court is stuck with irreconcilable fact testimony.
However, Defendants do not point to language in the Agreement that any such request would affect GCP's minimum bout obligation under Section 3. The Agreement already provides for specific situations that would abrogate GCP's minimum bout obligation. First, if Miljas was named the "mandatory challenger" for a world title. [ECF No. 42-1 ¶ 3]. Although it does not directly address the minimum bout requirement, Section 20 of the Agreement provides that "[i]n the event Boxer becomes permanently or partially disabled . . . Promoter shall have the right to either extend the Term . . . or to terminate this Agreement." [ECF No. 42-1 ¶ 20]. The same section also provides for a suspension of the Agreement during any temporary retirement by Miljas. Id. The provisions addressing adjustments of the minimum bout requirement undermines Defendants' claim that it should not be obligated to perform under a scenario not provided for in the Agreement. See Peak v. Adams, 799 N.W.2d 535, 548 (Iowa 2011) (holding that a contract expressly releasing one individual for liability implies that a different individual is not released by the contract); cf. Mauer Vision Cty., PC., 855 N.W.2d at 727 ("Courts imply contractual terms where the obligation 'arise[s] from the language used or [is] indispensable to give effect to the intent of the parties.' "). Additionally, Defendants fail to expand on their argument that Miljas's alleged request for a pause in bouts should excuse their performance. They point to no contract language to support their position. They simply claim it is his "fault."
Even under the summary judgment standard requiring resolution of all factual disputes in Defendants' favor—that Miljas did in fact request a pause in scheduling bouts during the period between March 2019 and August 2019—it cannot be said that, as a matter of law, the requested pause relieved GCP of its duties under Section 3. The Agreement provides that Miljas could not "unreasonably withhold" approval of opponents. GCP does not claim that any opponents were offered during this time period. Miljas could not unreasonably withhold his approval of non-existent opponents.
ii. Immigration Issues
In late September or early October 2019, Miljas returned to Canada due to concerns about his immigration status. Defendants allege that this period of time constituted a period of ineligibility pursuant to Section 30 of the Agreement. [ECF No. 42-1 ¶ 30] ("If the Boxer should not be legally permitted to fight within the United States of America, the period of his ineligibility shall be deemed a disability and this Agreement shall be extended until his eligibility is re-established."). Miljas argues that GCP never asserted "a right to 'deem' this temporary absence a disability until this litigation." [ECF No. 100-2 at 25]. Rather, GCP offered a bout in Canada during this time period. [ECF No. 100-3 ¶ 42]. The record demonstrates that GCP offered Miljas a bout during this period and in doing so, waived the ability to assert that Miljas's time in Canada was a period of ineligibility.
Miljas does not rely on any specific contractual language to support his theory that GCP was obligated to "deem" the period of time a disability. In fact, the provision at issue provides that "the period of his ineligibility shall be deemed a disability." [ECF No. 42-1 ¶ 30] (emphasis added). Ordinarily, "shall" is mandatory and not subject to further qualifications. See Willett v. Cerro Gordo Cnty. Zoning Bd. of Adjustment, 490 N.W.2d 556, 559 (Iowa 1992) (" 'Shall' in ordinary usage means 'must' and is inconsistent with the concept of discretion." (quoting Black's Law Dictionary at 1375)). Miljas also opines in a footnote that the language more likely refers to disciplinary suspensions by boxing sanctioning bodies or state athletic commissions, rather than immigration status.
He does offer that GCP waived its right to a period of disability because it attempted to schedule a bout in Canada. "The essential elements of a waiver are the existence of a right, knowledge, actual or constructive, and an intention to relinquish such right." Scheetz v. IMT Ins. Co. (Mut.), 324 N.W.2d 302, 304 (Iowa 1982). Waiver can be expressed or implied and no consideration is required. Folkers v. Britt, 457 N.W.2d 578, 582 (Iowa 1990) (citation omitted). "Generally, the issue of waiver is one for the jury; when the evidence is undisputed, however, the issue is one of law for the court." EMC Ins. Grp., Inc. v. Shepard, 960 N.W.2d 661, 672 (Iowa 2021) (quoting Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Federated Mut. Ins., 596 N.W.2d 546, 552 (Iowa 1999)).
Here, both parties agree that GCP attempted to arrange a bout in Canada during Miljas's period of putative disability due to immigration issues. Not only do Defendants not deny that GCP attempted to arrange a bout in Canada during this period, but one of their main arguments during this litigation is that it was unreasonable for Miljas to withhold his approval of the bout against Ruann Visser in Canada. Assuming that Miljas's return to Canada during the final three months of 2019 constituted a disability under the Agreement, GCP waived its right to deem it as such by arranging a bout against Visser.
d. Ruann Visser Bout
Defendants' next argument is that Miljas violated his obligations under the Agreement, thus excusing their lack of performance because he unreasonably withheld his approval of the Ruann Visser bout in Canada on October 19, 2019. Miljas contends that the proposed Visser bout was not a qualifying offer under Section 3 for a variety of reasons. First, he argues that the bout was not offered in writing, which he insists is required by the Agreement. Second, Miljas asserts he was not informed about the purse for the bout, which is undisputedly required by the Agreement. Third, he claims that Visser was an unsuitable opponent in light of the circumstances at the time and his rejection was not unreasonable.
First, Miljas asserts that the proposed bout was not an offer under the Agreement because it was not made in writing and a gross purse was not discussed. Section 6 sets forth GCP's duties for disclosing relevant information regarding a bout qualifying as an offer under the Agreement:
For the purposes of Promoter's obligations under Section 3 of this Agreement, Promoter shall be deemed to have complied with its promotional obligations with respect to any bout if it shall have made an offer to Boxer to promote a bout setting forth (i) the name of a suitable opponent; and (ii) the gross purse to be paid to Boxer, and Boxer, exercising his reasonable discretion,
accepts the terms of Promoter's offer in writing.[ECF No. 42-1 ¶ 6].
Miljas contends that the Agreement requires that each bout arranged by GCP must be presented to him in writing. Defendants dispute this interpretation, pointing to the above-quoted language as providing that Miljas must accept or decline an offer in writing, not that the offer must be in writing. The Court agrees because Defendants' interpretation is consistent with longstanding interpretive canons. See, e.g., Lockhart v. United States, 577 U.S. 347, 351, 136 S.Ct. 958, 194 L.Ed.2d 48 (2016) (holding under the last-antecedent canon, "a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.").
Second, as to the evidence regarding whether a purse was discussed during the phone call, it is inconclusive what information was relayed to Miljas. He concedes that "[a]t most, Greg Cohen alleges that he told Mladen that 'he'd be getting his contractual minimum for an eight-rounder.' " [ECF No. 100-3 ¶ 45]. Miljas relies on discrepancies between the testimonies of Heid and Cohen, such as the fact that Cohen does not specifically recall where Miljas was located during the phone call (Las Vegas or Canada); and Heid's statement that "dollars and cents weren't really discussed" and he had no recollection whether a purse was discussed. Id. ¶¶ 46-48. These facts do not establish that, as a matter of law, no purse was offered to Miljas in violation of the terms of the Agreement.
Finally, Miljas's claim that his rejection of the opponent was not unreasonable is similarly improper to determine on summary judgment. Miljas points to facts that strongly support his claim that his rejection was not unreasonable because, for instance, that he would have had approximately 3 weeks to prepare for the fight, as opposed to an optimal 8 to 12 weeks. Id. ¶ 53. Also, he attests that Visser would have been the hardest opponent he had ever fought. Id. ¶ 52. While these facts are persuasive of Miljas's assertion, Defendants have also submitted evidence to support their claim that Visser was a suitable opponent at the time and Miljas's withholding of approval was not reasonable. This evidence includes an affidavit from a former professional boxer, Hasim Rahman, Miljas's one-time trainer Muhammad, and boxing expert Richard Glaser. [ECF No. 105-2 at 26-27, 36-37, 86-88].
Miljas also notes that Visser had been under scrutiny for his use of stanozolol, an anabolic androgenic steroid banned by anti-doping organizations. [ECF No. 100-3 ¶¶ 64-67]. Visser had been provisionally suspended on April 16, 2018, which had been reversed pending an appeal on September 27, 2018. Id. ¶ 66. An arbitrator subsequently determined that Visser had intentionally used performance-enhancing drugs and imposed a four-year suspension on February 19, 2020. Id. ¶ 67. This would certainly support Miljas's contention that he did not unreasonably reject the Visser bout. However, Miljas acknowledges that he was unaware of Visser's steroid use when the bout was proposed by GCP. Id. ¶ 68. It would be inappropriate to consider information in which Miljas was unaware when considering whether his rejection was unreasonable. Nevertheless, knowledge of Visser's steroid use would not be dispositive as to whether the rejection was unreasonable.
As the nonmoving party, Defendants are entitled to the benefit of all reasonable inference that can be drawn from the record. See Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 541 (8th Cir. 2014). Furthermore, "[c]redibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505. Thus, the Court cannot find as a matter of law that Miljas reasonably withheld his approval of the Visser bout. This is fact is dispositive because if a fact-finder determined that the approval was unreasonably withheld, the Visser offer would constitute a fourth bout in 2019.
C. Excused Performance
As a final argument, Defendants claim that GCP's performance should be excused because the onset of the COVID-19 pandemic in early 2020 made fulfilling its contractual obligations impossible. In support of this position, Defendants claim that no boxing events were held in New York/New Jersey between March 2020 and August 2021. Furthermore, they assert no boxing matches were held in all of Canada between March 2020 and December 2021. This argument is unconvincing for several reasons.
First, Defendants do not point to any geographical restriction in the contract and, in fact, none of the four bouts were held in the geographical area. Even if there were no bouts in Canada or greater New York City, there was nothing prohibiting GCP from arranging bouts in other portions of the United States.
Second, Defendants assert that "[t]he entire boxing industry essentially shut down from early March 2020 through June 2020." However, do not point to any force majeure clause in the Agreement either. GCP provides no other legal basis to excuse its performance.
D. Expiration of Agreement
Miljas also moves for summary judgment on his claim for declaratory judgment. He asks the Court to hold that the Agreement has expired and he is no longer bound to any exclusivity to GCP. Defendants offer several reasons that the Agreement should be extended and not deemed to be expired. First, they claim that Miljas's return to Canada from September to December 2019 should extend the Agreement. [ECF No. 105 at 16]. Second, Defendants insist that Miljas refused to accept any bouts since September 2019, which should be considered a "voluntary retirement." Id. And finally, they reiterate their argument regarding the COVID-19 pandemic. Id. at 16-17.
The Declaratory Judgment Act provides, "[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). This type of remedy does not implicate past liability but instead "define[s] the legal rights and obligations of the parties" going forward. Justice Network v. Craighead Cnty., 931 F.3d 753, 764 (8th Cir. 2019) (citation omitted). District courts are afforded broad discretion over claims seeking declaratory relief. Alsager v. Dist. Ct. of Polk Cnty., 518 F.2d 1160, 1163 (8th Cir. 1975).
The initial term of the Agreement is three years, commencing from the date of execution. [ECF No. 42-1 at 1]. The Agreement was signed on June 11, 2018, making its natural expiration date June 11, 2021. See id. It provided for an automatic extension in the event that Miljas was ranked in the top ten, challenged for the world title, or became world champion of the WBA, WBC, IBF, or WBO. Id. at 2. Miljas has never been ranked in the top ten, challenged for the world title, or held the world championship for any of those four boxing organizations. [ECF No. 100-3 ¶ 10].
The other circumstances that provide for an extension of the Agreement is if Miljas had a disability or went into temporary retirement. [ECF No. 42-1 at 3]. As the Court analyzed earlier, if Miljas's hiatus during late 2019 did constitute a disability under the Agreement, as GCP waived its right by arranging the Visser bout in Canada. Thus, the remaining circumstance in which the Agreement could be extended, and not still in effect, is if Miljas had a period of retirement.
It should be noted that even if GCP did not waive its contractual right to deem Miljas's move to Canada as a disability, it would only amount to approximately three month extension to the Agreement, which would have expired in October 2020.
Defendants' position on the temporary retirement issue is that Miljas has voluntarily retired because he has not fought since he terminated the Agreement in June 2020. [ECF No. 105 at 30]. In Defendant's view, Miljas obtained a preliminary injunction from this Court which freed him to sign with any other promoter. However, Miljas has not accepted any bouts from other promoters, thus constituting a retirement according to Defendants.
This argument—that Miljas "retired" because he has not fought since terminating the Agreement—is spurious. This litigation was initiated in part because Miljas claims Defendants were interfering with his ability to seek a new promoter after he claims to have terminated the Agreement. Even after the Court imposed a preliminary injunction, GCP filed counterclaims which violated the injunction and were stricken from the docket. [ECF No. 59]. Whether Miljas validly terminated the Agreement, or breached it himself, cannot be determined as a matter of law because of the materials facts in dispute. However, the Agreement has long since expired and Miljas no longer owes exclusivity to GCP.
E. Attorney's Fees
Miljas also moved for an award of attorney's fees pursuant to Section 18 of the Agreement. That section provides:
Promoter agrees to indemnify and hold Boxer harmless from and against any and all liabilities losses, damages, costs, and expenses, including reasonable attorney's fees, that Boxer may sustain or incur as a result of (i) Promoter's breach of this Agreement; (ii) the inaccuracy of any warranties and representations made by Promoter in Section 16; (iii) any claim by any third party arising out of any breach or any alleged breach of any term of this Agreement by Promoter; (iv) or any other act or omission by Promoter.[ECF No. 42-1 at 7].
Miljas asks the Court to enter an order compelling GCP to bear his reasonable attorney's fees incurred in connection with this litigation if "granting one or more of those aspects of relief sought by this Motion." [ECF No. 100-2 at 26]. Because the Court is not granting summary judgment to Miljas on his breach of contract claim, it will defer any determination on the application of the attorney's fees provision until later. It is unclear if the provision applies to a declaratory judgment order absent any finding of breach of contract. The parties will be provided an opportunity to brief this issue if Miljas renews his request for attorney's fees at the appropriate time.
III. CONCLUSION
For the foregoing reasons, the partial Motion for Summary Judgment is GRANTED in part, and DENIED in part. [ECF No. 100]. The Court GRANTS summary judgment in favor of Plaintiff on: (1) Plaintiff's Count II for declaratory judgment; (2) Defendants' counterclaim Count I for declaratory judgment and specific performance. The Court DENIES summary judgment on the remaining claims.
IT IS SO ORDERED.