Case 2:13-cv-02617-RDR-KGS Document 12-2 Filed 02/04/14 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MARTIN MEISSNER, ) ) Plaintiff, v. BF LABS INC., Defendant. ) ) ) ) ) ) ) Case No. 13-2617-RDR-KGS

BF LABS INC.S MOTION TO DISMISS Defendant BF Labs Inc. (BF Labs), pursuant to Fed. R. Civ. P. 12(b)(6), moves to dismiss Martin Meissners (Plaintiff) prayer for consequential damages in each of the five counts of his Complaint, as well as dismiss Count II (Fraud); Count III (Negligent Misrepresentation); Count IV (Kansas Consumer Protection Act Deceptive Acts); and Count V (Kansas Consumer Protection Act Unconscionable Acts) in their entirety for failure to state a claim on which relief can be granted. Plaintiffs claims outlined above are insufficient as a matter of law and should be dismissed. In support of this motion, and as more fully set forth in the accompanying Memorandum in Support, BF Labs states: 1. Plaintiff is not entitled to consequential damages as a matter of law because they

are too speculative. United States v. Griffith, Gornall & Carman, Inc., 210 F.2d 11 (10th Cir. 1954)(Damages which are based on conjecture or speculation are, of course, not recoverable). 2. Damage here cannot be proved with reasonable certainty. The amount of

consequential damages that Plaintiff seeks are based entirely on guesses and assumptions. The Kansas Court of Appeals recently defined speculative damages within the context of future

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lost profits as follows: [p]rospective or anticipated damages from the same acts or facts constituting the present cause of action, but which depend upon future developments which are contingent, conjectural, or improbable. Corefirst Bank & Trust v. JHawker Capital, LLC, 282 P.3d 618, 631-32 (Kan. App., June 15, 2012) (quoting Blacks Law Dictionary 392 (6th ed. 1990)). 3. Second, Plaintiffs failure to cover also precludes a recovery of consequential

damages. See, e.g. Kelley Metal Trading Co. v. Al-Jon/United, Inc., 877 F. Supp. 1478 (D. Kan. 1995) (lost profits were not recoverable because (1) buyer failed to establish that it attempted to mitigate its damages and (2) because such losses were speculative). 4. Next, Plaintiff fails to state a claim because his Complaint acknowledges that he

agreed to a multi-month time frame to ship the Bitcoin Miners. Compl. 32. 5. Plaintiffs fraud claim is barred by the economic-loss doctrine and should be

dismissed. Louisburg Building & Development Co. v. Albright, 45 Kan.App.2d 618, 655-56 (2011) (applying economic loss doctrine to a fraudulent inducement claim). 6. Plaintiffs negligent misrepresentation claim -- also duplicative of his breach of

contract claim -- is also barred by the economic-loss doctrine. Raab Sales, Inc. v. Domino Amjet, Inc., 530 F. Supp.2d 1192, 1198-99 (D. Kan. 2008) (applying economic loss rule to negligent misrepresentation claim, although based upon Illinois law). But looking past the economic-loss doctrine, under Kansas law, a person cannot negligently misrepresent a present intent to perform in the future. Near v. Crivello, 673 F. Supp.2d 1265, 1279 (D. Kan. 2009). 7. Both Plaintiffs Kansas Consumer Protection Act claims (Counts IV and V) fail The

because TradeMost Enterprises Ltd. (TradeMost) pre-ordered the Bitcoin Miners.

individual or sole proprietor must have suffered the injury in order to bring the claim. Kestrel

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Holdings I, L.L.C. v. Learjet Inc., 316 F. Supp. 2d 1071, 1076-77 (D. Kan. 2004). Here, Plaintiffs Complaint acknowledges that that TradeMost indisputably wire-transferred the payment for the pre-order to BF Labs for the Bitcoin Miners. Compl. 27. 8. BF Labs Memorandum in Support is being filed contemporaneously with this

Motion and is incorporated herein by this reference.

Respectfully submitted,

James M. Humphrey KS Fed. #70664 Michael S. Foster KS #24011 Polsinelli PC 900 W. 48th Place, Suite 900 Kansas City, Missouri 64112-1895 Telephone: (816) 753-1000 Facsimile: (816) 753-1536 jhumphrey@polsinelli.com mfoster@polsinelli.com Attorneys for Defendant BF Labs Inc.

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CERTIFICATE OF SERVICE I hereby certify that on ___________, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Robert F. Flynn The Flynn Law Firm, P.C. 1150 Grand Blvd., Suite 300 Kansas City, MO 64106-2303 Attorneys for Plaintiff

Attorney for Defendant