Level One Technologies, Inc. v. Penske Truck Leasing Co., L.P. et al

Filing 288

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Penskes motion for summary judgment, 185 , is DENIED. Signed by District Judge Rodney W. Sippel on 9/25/18. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEVEL ONE TECHNOLOGIES,
INC.,
Plaintiff,

)
)
)
)
v.
)
)
PENSKE TRUCK LEASING CO.,
)
L.P., and PENSKE LOGISTICS LLC, )
)
Defendants.
)

Case No. 4:14 CV 1305 RWS

MEMORANDUM AND ORDER
Defendant Penske moves for summary judgment on Level One’s remaining
breach of contract (Count I) claim [No. 185]. Penske argues that Level One cannot
establish damages and its case must be dismissed. I denied Penske’s motions to
exclude Level One’s expert testimony. [No. 273]. Because Level One has some
evidence to prove damages, which creates a dispute of material fact, I will deny
Penske’s motion for summary judgment.
BACKGROUND
Technology services company Level One brought this suit against Defendant
Penske Truck Leasing Co (“Penske”) alleging that it stole Level One’s online
payment source code, developed a competing payment system, and stopped using
Level One’s payment system in breach of contract. Level One has voluntarily
dismissed its Trade Secrets Claim, and I have granted summary judgment on all of

Level One’s other claims except for its breach of contract claim. Penske now
moves for summary judgment on that breach of contract claim.
LEGAL STANDARD
I can only grant summary judgment if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates (1) that there is no genuine issue
as to any material fact and (2) that the moving party is entitled to judgment as a
matter of law. Lynn v. Deaconess Med. Ctr., 160 F.3d 484, 486 (8th Cir. 1998)
(citing Fed. R. Civ. P. 56(c)). In this evaluation, I view all facts and factual
inferences in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party
seeking summary judgment bears the burden of establishing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
ANALYSIS
Penske argues that it is entitled to judgment as a matter of law because (1)
Level One cannot establish damages without Dr. Rosenberg’s and Taylor’s
testimony; (2) saved development costs cannot support the damages element of a
breach of contract claim; and (3) Level One’s lost profit damages are too
speculative. The first argument is moot, because I denied Penske’s motion to
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exclude Dr. Rosenberg’s and Taylor’s testimony. [No. 273]. The second argument
is also moot, because I have dismissed Level One’s unjust enrichment claim. [No.
268]. Level One concedes that it only offered saved development costs for the
purpose of unjust enrichment. [ECF No. 209 at 5]. I will reject this third argument
for the reasons explained below.
Under Missouri law, plaintiffs seeking lost profits at trial “must
produce evidence that provides an adequate basis for estimating lost profits
with reasonable certainty.” Polytech, Inc. v. Affiliated FM Ins. Co., 21 F.3d
271, 276 (8th Cir. 1994). Penske argues that Level One cannot fulfill this
requirement, because Level One has no history of profits. (ECF No. 187 at
10) (citing Midwest Coal, LLC ex rel. Stanton v. Cabanas, 378 S.W.3d 367,
370 (Mo. Ct. App. 2012). In reply, Level One argues that lost profits arising
from breach of contract can be proven without a history of company-wide
profits if a plaintiff (1) clearly establishes the fact of damages and (2) the
amount of damages is readily ascertainable. Midwest Coal, 378 S.W.3d at
371.
I find that Level One provides enough evidence to estimate lost profits
with reasonable certainty. See Polytech, Inc., 21 F.3d at 276. To the extent

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that a history of profits is necessary,1 I also find that Penske meets the
requirements of the Midwest Coal exception. Level One clearly establishes
the fact of damages by quantifying the number of transactions that Penske
processed through POPS and the per-transaction profit. Second, the amount
of damages is readily ascertainable because Level One’s revenue per
transaction was known ($1.55) and its costs per transaction can be estimated
with reasonable certainty. As a result, Level One’s damages are not so
speculative that they provide no basis for recovery.
Accordingly,
IT IS HEREBY ORDERED that Penske’s motion for summary judgment,
[No. 185], is DENIED.

______________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 25th day of September, 2018.

1

The primary case Defendant cites for this rule involves the complete interruption or sale of a
business opportunity. See Midwest Coal, LLC ex rel. Stanton v. Cabanas, 378 S.W.3d 368-370,
371 (alleging that plaintiff missed out on business opportunity for a coal slurry because of a
fraudulent misrepresentation).
4