United States District Court, W.D. Missouri, Central Division
Nanette K. Laughrey, United States District Judge.
before the Court is Plaintiff 1520 Swift, LC's Motion for
Summary Judgment, Doc. 37. Swift brings this motion asserting
that it is entitled to judgment as a matter of law as to its
breach of contract claim against BMMTech, as well as for
BMMTech's remaining counterclaims against Swift. For the
reasons set forth below, Plaintiff's motion for summary
judgment is granted.
1520 Swift, LC filed suit against defendant BMMTech Canada
Corporation for breach of contract, unjust enrichment, and
declaratory judgment. Doc. 1 (Complaint). Defendant BMMTech
filed its Answer to Plaintiff's Complaint, along with
five counterclaims against Swift. Swift filed a motion to
dismiss counts I, II, III, and part of count IV of
BMMTech's counterclaims, Doc. 23, which was granted. Doc.
36. As of the filing of this order, BMMTech has not responded
to Plaintiff's Request for Admission, Interrogatories, or
Request for Production of Documents, and has not responded to
Plaintiff's Motion for Summary Judgment.
March 7, 2018, Swift and BMMTech entered into a Master
License and Service Agreement (“MLSA”) contract,
in which Swift agreed to provide services to maintain a
bitcoin mining facility for BMMTech in exchange for payment
by BMMTech. Doc. 22 (Defendant's Answer to Complaint), at
¶ 10. The MLSA required BMMTech to pay monthly charges
to Swift, and included provisions for late fees for overdue
amounts not paid by BMMTech. Doc. 38-1, at ¶¶5, 6,
13. The MLSA also provided that a party may terminate the
agreement if the other party materially breached the
agreement and failed to cure that breach within thirty days
of written notice by the other party. Id., at ¶
7. Once terminated, the BMMTech was liable for “all
third party charges incurred by [Swift] arising from such
termination, ” as well as “all unpaid Fees up to
the date of termination.” Id., at ¶ 8.
Additionally, in the event of BMMTech's default or
breach, the MLSA stated:
[Swift] shall have the right, at its option to . . . require
that [BMMTech] pay to [Swift], as additional damages . . .
(i) an amount equal to the total of any and all discounts
given to [BMMTech] in connection with this Agreement, and
(ii) an amount equal to one-hundred percent (100%) of the
outstanding Service Fees, License Fees and all other amounts
payable hereunder including any late fees and a Termination
Fee that shall be equal to 65% of the outstanding Service
Fees, License Fees and all other amounts payable hereunder
that [BMMTech] would have had to pay for the remaining
applicable Term of this Agreement.
Id., at 9. Under these circumstances, BMMTech would
also be liable for “all costs of collection including,
without limitation, attorneys' fees and costs.”
Id., at ¶ 10. Further, the MLSA stated that
BMMTech would be liable to reimburse Swift for all reasonable
attorneys' fees incurred by [Swift] in connection with
enforcing its rights under this Agreement regardless if any
action is commenced.” Id., at ¶ 11.
term of March 2018 to May 2019, BMMTech made six payments,
and has not made any payments since September 2018.
Id., at ¶¶ 14-15. On or about November 16,
2018 Swift notified BMMTech of its outstanding fees and the
remedies listed in the MLSA. Id., at ¶¶
16. Accordingly, on or about October 17, 2018, the MLSA and
related service order were terminated. Id., at
¶ 30. Swift now asserts that BMMTech owes Swift over
$18, 324, 616, 27 in various outstanding fees as per the
MLSA, in addition to additional amounts including
attorneys' fees. Id., at ¶ 23.
the MLSA provided that BMMTech had to remove its equipment
from the facility within 120 days of termination, otherwise
ownership of the equipment would transfer to Swift.
Id., at ¶ 12. As more than 120 days have passed
since the MLSA was terminated, Swift asserts that it is now
the rightful owner of this abandoned equipment, and that it
may liquidate or dispose of the equipment, and use any money
recovered in this way as credit towards BMMTech's
outstanding amount due to Swift. Id., at
judgment is warranted where “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). The Court must determine whether
“there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). The Court must “view the facts and draw
reasonable inferences in the light most favorable to the
party opposing the summary judgment motion.” Scott
v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 1774
(2007) (quotation marks and citation omitted). Where a
party's fails to contest facts asserted by the movant, a
court may “consider the fact undisputed for purposes of
the motion” and grant summary judgment if “the
motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to
it.” Fed.R.Civ.P. 56(e)(2), (e)(3).
Plaintiff's Breach of Contract Claim
Missouri law, a claim for breach of contract action includes
the following elements: “(1) the existence and terms of
a contract; (2) that plaintiff performed or tendered
performance pursuant to the contract; (3) breach of the
contract by the defendant; and (4) damages suffered by the
plaintiff.” Williams v. Medalist Golf, Inc.,
910 F.3d 1041, 1045 (8th Cir. 2018) (quoting Keveney v.
Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010)).
has not responded to Plaintiff's requests for admission
nor Plaintiff's motion for summary judgment. Any requests
for admission that are not answered or objected to are deemed
admitted. Fed.R.Civ.P. 36(a)(3). As admitted, Swift's
unanswered requests satisfy each element of its breach of
contract claim. See Doc. 38-1 (Plaintiff's
Request for Admissions ...