Sprint Nextel Corporation v. Middle Man, Inc., The et al

Filing 157

MEMORANDUM AND ORDER granting in part and denying in part 153 plaintiff's Motion for Judgment. Defendants are granted to and including January 19, 2015 to respond to this order. Signed by Chief Judge J. Thomas Marten on 1/13/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SPRINT NEXTEL CORPORATION,
Plaintiff,
v.

Case No. 12-2159-JTM

THE MIDDLE MAN, INC., and
BRIAN K. VAZQUEZ,
Defendants.

MEMORANDUM AND ORDER
Before the court is plaintiff Sprint Nextel Corporation’s (“Sprint”) Motion for
Entry of Final Judgment on Count I and Voluntary Dismissal of Remaining Claims With
Prejudice (Dkt. 153). As discussed below, the order is granted in part and denied in
part.
I. Background
The court finds that the parties are well-acquainted with the facts of this case.
Therefore, a dissertation thereof is unnecessary. The relevant procedural history is as
follows. On March 14, 2012, Sprint filed a thirteen-count complaint against defendants
The Middle Man, Inc. and Brian K. Vazquez. (Dkt. 1). On December 9, 2014, the court
granted partial summary judgment in favor of Sprint on liability only for Count I:
Breach of Contract. (Dkt. 151). The court determined that a genuine dispute of material
fact existed as to Sprint’s claim for $2,864.29 in damages for the breach of contract. (Dkt.
151, at 8).

II. Analysis
A. Final Judgment on Count I
“Every judgment and amended judgment must be set out in a separate
document . . . .” FED. R. CIV. P. 58(a). Several enumerated exceptions to this general rule
are stated in Rule 58(a), none of which are relevant to this case. “A party may request
that judgment be set out in a separate document as required by Rule 58(a).” FED. R. CIV.
P. 58(d). “’Judgment’ as used in these rules includes a decree and any order from which
an appeal lies.” FED. R. CIV. P. 54(a). “[A] grant of partial summary judgment limited to
the issue of [defendant’s] liability . . . are by their terms interlocutory.” Liberty Mut. Ins.
Co. v. Wetzel, 424 U.S. 737, 744 (1976). Such grants are not judgments under the Rules
“where assessment of damages or awarding of other relief remains to be resolved . . . .”
Id.
Here, the court granted partial summary judgment in favor of Sprint on liability
only for breach of contract (Dkt. 151). Judgment on liability only is not a judgment for
purposes of Rule 58(a). Therefore, it is improper to enter a judgment pursuant to Rule
58 on liability only for breach of contract.
B. Voluntary Dismissal of Remaining Claims With Prejudice
[A]n action may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper. If a defendant has pleaded a
counterclaim before being served with the plaintiff’s motion to dismiss,
the action may be dismissed over the defendant’s objection only if the
counterclaim can remain pending for independent adjudication.
FED. R. CIV. P. 41(a)(2). Here, plaintiff moves to voluntarily dismiss all claims other than
Count I. Defendants have no counterclaims pending and make no objection to this
2

motion. Therefore, the motion to dismiss all claims other than Count I, breach of
contract, is granted.
C. Summary Judgment on Damages for Breach of Contract
After studying the developed record in this matter, the court advises the parties
that it is considering the entry of summary judgment in favor of Sprint for nominal
damages pursuant to Rule 56(f)(3). “After giving notice and a reasonable time to
respond, the court may: . . . (3) consider summary judgment on its own after identifying
for the parties material facts that may not be genuinely in dispute.” FED. R. CIV. P. 56(f).
Summary judgment is proper if “there is no genuine dispute as to any material fact”
and a party is “entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of material fact is genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party resisting summary judgment may not rely upon mere allegations or
denials contained in its pleadings or briefs. Id. at 256. Rather, such party must come
forward with specific facts showing the presence of a genuine issue of material fact for
trial and significant probative evidence supporting the allegation. Id. Summary
judgment may be granted if the opposing party’s evidence is merely colorable or is not
significantly probative. Id. at 249–50. The party opposing summary judgment must do
more than simply show there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “In the
language of the Rule, the nonmoving party must come forward with ‘specific facts
3

showing that there is a genuine issue for trial.’” Id. at 587 (quoting FED. R. CIV. P. 56(e))
(emphasis in Matsushita).
1. Nominal Damages for Breach of Contract Under Kansas Law
Under Kansas law, a plaintiff who establishes liability for breach of contract is
entitled to recover at least nominal damages. Freeto Constr. Co. v. American Hoist &
Derrick Co., 457 P.2d 1, 6 (Kan. 1969); see also RESTATEMENT (SECOND)

OF

CONTRACTS §

346(2); All West Pet Supply Co. v. Hill’s Pet Prods. Div., Colgate-Palmolive Co., 840 F. Supp.
1433, 1440-41 (D. Kan. 1993). The Restatement states the rule as follows: “If the breach
caused no loss or if the amount of the loss is not proved under the rules stated in this
Chapter, a small sum fixed without regard to the amount of loss will be awarded as
nominal damages.” RESTATEMENT (SECOND) OF CONTRACTS § 346(2).
Here, the court granted partial summary judgment on liability for breach of
contract (Dkt. 151). Sprint now argues only nominal damages, to which it is entitled
under Kansas law. The court finds no genuine dispute of material fact exists as to
nominal damages; there is therefore no issue for trial on breach of contract. The court
grants summary judgment in favor of Sprint for nominal damages.
Further, the court finds that the parties have extensively briefed – and are aware
of the relevant facts and issues related to – the issue of damages. Thus, a matter of days,
rather than weeks, is “a reasonable time to respond” pursuant to Rule 56(f).
Accordingly, defendants are granted to and including January 19, 2015, to respond to
this order and set forth any ground, legal or factual, in opposition to the entry of
summary judgment on breach of contract for nominal damages. Failure to provide a
4

timely response will result in the entry of summary judgment on behalf of Sprint
without additional prior notice to defendants.
IT IS ACCORDINGLY ORDERED this 13th day of January, 2015, that plaintiff’s
motion (Dkt. 153) is denied to the extent that plaintiff seeks entry of a final judgment on
Count I, and granted to the extent that all other claims, Counts II – XIII, are dismissed
with prejudice.
IT IS FURTHER ORDERED that the parties are notified that the court is
considering the entry of summary judgment in favor of plaintiff pursuant to Rule
56(f)(3). Accordingly, defendants are granted to and including January 19, 2015, to
respond to this order.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

5