BIOMEDICAL DISPOSAL, INC., Plaintiff-Appellant, v. MEDIQ/PRN LIFE SUPPORT SERVICES, INC., Defendant-Appellee, 202 F. App'x 347

PER CURIAM: BioMedical Disposal, Inc. (“BioMedical”) sued MEDIQ/PRN Life Support Services, Inc. (“MEDIQ”) for breach of contract, alleging that MEDIQ failed to perform its contractual duties as defined by a letter agreement between the parties, dated July 24, 2001 (“the Agreement”). BioMedical produced Sharpx, a needle destruction system for use in health care facilities. Pursuant to the Agreement, MEDIQ became BioMedical’s exclusive rental distribution agent for Sharpx in the United States.

The complaint contained five counts: Count I alleged MEDIQ’s breach of the duty to pay BioMedical minimum amounts owed pursuant to the Agreement; Count II alleged MEDIQ’s breach of the duty to use its best efforts to promote BioMedical’s product; Count III alleged MEDIQ’s breach of the duty to pay BioMedical for “Starter Repair Kits”; Count IV alleged MEDIQ’s breach of its duty to allow BioMedical inspection of MEDIQ’s financial records pursuant to the Agreement; and Count V alleged MEDIQ’s bad faith in the litigation. Count III was settled by the parties. The district court granted

summary judgment for MEDIQ on Counts I, II and IV. BioMedical appeals the judgment as to Counts I and II only. BioMedical also contends that the district court erred in denying its untimely motion for leave to file a motion for partial

summary judgment and a supplemental response to ME-DIQ’s

summary judgment motion. Having reviewed the record and the briefs on appeal, we find no reversible error in the district court’s grant of

summary judgment on Counts I and II. As to Count I, we agree with the district court that the plain language of the Agreement does not impose a duty upon MEDIQ to pay BioMedical a minimum monthly amount. Regarding Count II,

summary judgment was properly granted because BioMedical did not present evidence of its damages resulting from MEDIQ’s alleged breach of the duty to use its best efforts to promote Sharpx. Georgia law does not allow BioMedical to recover lost profit damages because BioMedical was a new company; its lost profit damages are speculative. And, we will not reverse the grant of

summary judgment on this count based on BioMedical’s arguments on appeal that it is entitled to nominal damages or damages for Sharpx units unreturned by MEDIQ because these arguments were not presented to the district court at the

summary judgment stage. See R.5-109 at 22-24. Finally, we find no abuse of discretion in the district court’s denial of BioMedical’s motion to file an untimely

summary judgment motion and a supplemental response to MEDIQ’s motion. AFFIRMED. . The record does not demonstrate that

summary judgment was granted to MEDIQ on Count V. However, it is clear that the district court considered the entire action resolved by the Consent Order settling Count III and the court’s order of

summary judgment. See Final Judgment, R.6-144 at 1. Moreover, BioMedical does not argue that Count V remains unresolved. Therefore, we consider the district court's Final Judgment to be just that — the district court's resolution of the entire case.