United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
This matter is before the Court on a second motion  by Plaintiff/Counter-Defendant Kreg Therapeutics, Inc. ("Kreg") for summary judgment on its claim against Defendant/Counter-Plaintiff VitalGo, Inc. ("VitalGo"). For the reasons stated below, the Court reaffirms its earlier determination that Kreg has established three of the four elements of its claim, see  at 31, but denies the currently pending motion  because material issues of fact remain as to the damages to which Kreg may be entitled. This matter is set for status on April 15, 2014 at 9:00 a.m.
A. Procedural History
In December 2009, Kreg and VitalGo entered into an agreement pursuant to which Kreg was granted the exclusive right to distribute VitalGo's adjustable hospital bed, the Total Lift Bed, in certain regions of the country. In exchange for this exclusivity, Kreg agreed to commit to purchase minimum quantities of the bed. From the get-go, the parties have disputed whether Kreg upheld its end of the parties' agreement by properly committing to purchase the requisite quantity of beds. See  at 7 & nn. 3-4. Kreg maintains that it did, and, in compliance with Local Rule 56.1 and Federal Rule of Civil Procedure 56(c), provided the Court with evidence of that fact in connection with its original motion for summary judgment. VitalGo consistently has taken the opposite position. See, e.g.,  at 5;  at 2-3;  at 6-7. Unfortunately for VitalGo, however, its counsel neglected to properly file the materials required by Local Rule 56.1 at the first summary judgment stage. See  at 2-4. Although it was in no way obligated to do so, the Court twice attempted to contact VitalGo's counsel to alert him to the omission. See id. at 3-4. VitalGo nonetheless failed to rectify the error. The Court accordingly conducted its summary judgment analysis with the almost exclusive benefit of Kreg's properly submitted and filed facts and argument.
Perhaps not surprisingly on the lopsided record before it, the Court concluded that "as to the original territories [enumerated in the parties' contract], Kreg has established the first three elements of a claim for breach of contract under New York law: (1) the existence of a contract, (2) Kreg's own performance, and (3) VitalGo's breach."  at 31. Because Kreg failed to prove damages or demonstrate an entitlement to injunctive relief, however, the Court denied its motion for summary judgment. See id. at 33. In light of the changing conditions of the case, the Court left open for Kreg the opportunity to develop the record further and attempt to demonstrate an entitlement to damages. See id. at 31; see also Fed.R.Civ.P. 54(c).
At the time that the Court issued its ruling, it scheduled a status hearing for April 18, 2013. See  at 2. VitalGo's counsel failed to appear on that date. See . At the hearing, the Court had the following exchange with Kreg's counsel (one of whom traveled from Kansas City to attend the hearing):
Counsel: Well, your Honor, my thought is that the current opinion is really a 56(g). I mean, you found there was a contract, you found we performed, you found they breached but you didn't find damages.
What if we consider with a 56(g) ruling the only thing left is damages. We could file a motion for summary judgment as to damages. If they don't respond -
The Court: Yes.
Counsel: - you will rule however you rule.
The Court: We know that drill. Yes, [my law clerk] and I have had a few one-sided summary judgments too. It's hard to clap with one hand, but you can do it.
Counsel: You can do it.
The Court: So if that's the way you want to proceed and you think that's the most sensible, I'm ...