ORDER ON MOTIONS FOR SUMMARY JUDGMENT

LEONARD T. STRAND, Chief District Judge.

I. INTRODUCTION

Presently before me are cross motions for summary judgment. Doc. Nos. 53 and 54. The motions are fully submitted and I find that no oral argument is necessary.

II. HISTORY

Plaintiff Rembrandt Enterprises, Inc. (Rembrandt), a large scale producer of eggs, filed this action on December 9, 2015. Doc. No. 1. Rembrandt primarily requests declaratory relief regarding its purchase contract with defendant Dahmes Stainless, Inc. (Dahmes). Rembrandt also requests restitution and an accounting of Dahmes' expenses. Id., at 4.

Dahmes, a manufacturer of industrial products, filed its answer on April 1, 2016. Doc. No. 14. Dahmes also filed a counterclaim against Rembrandt, alleging two counts of breach of contract.1 Doc. No. 14 at 12-15. Dahmes also filed a motion to strike a portion of the complaint, arguing that it contained a description of an offer to compromise. Doc. No. 16. The Honorable C.J. Williams, Chief United States Magistrate Judge, found it appropriate to seal the relevant documents rather than striking them. Doc. No. 29. Dahmes then filed a supplemental answer. Doc. No. 31. The parties also stipulated to a protective order. Doc. No. 17.

The parties filed cross motions for summary judgment on March 3, 2017. Doc. Nos. 53 and 54. Rembrandt filed a resistance to Dahmes' motion for summary judgment on April 7, 2017. Doc. No. 69. On that same date, Dahmes filed a resistance to Rembrandt's motion for summary judgment. Doc. No. 70. Each party then filed reply materials. Doc. Nos. 71, 72, 73.

Throughout the pendency of the case, the parties have engaged in numerous discovery disputes (See Doc. Nos. 40, 49) and several disputes regarding the sealed information (See Doc. No. 66).

III. FINDINGS OF FACT

As noted above, Rembrandt is a large scale producer of eggs and egg products, with several different facilities in Iowa and Minnesota. In approximately 2014, Rembrandt sought to expand its business and provide egg products to cereal producer Kellogg.2 The exact details regarding Rembrandt's and Kellogg's relationship are disputed. In short, Rembrandt alleges it had assurances that it could become Kellogg's sole egg product supplier because Kellogg's relationship with its past supplier had soured. Dahmes posits that Rembrandt was merely hoping that if it substantially increased its output capacity it could secure a larger share of Kellogg's business. Regardless, it is undisputed that Rembrandt took steps to comply with Kellogg's corporate requirements and to become a more significant supplier for Kellogg. Rembrandt began the undertakings necessary to build a new egg processing plant near an existing facility in Thompson, Iowa. Rembrandt's plan for the new site was for a large scale facility, with a construction budget of over $100 million dollars.

As part of the new and expanded Thompson facility, Rembrandt entered into an agreement (Doc. No. 53-3 at 18) with Dahmes for an industrial egg dryer.3 Rembrandt and Dahmes signed the purchase agreement on November 20, 2014. The purchase price was $8.5 million dollars, subject to adjustment for change orders. Following subsequent change orders, the actual price turned out to be $8.99 million. A down payment of $2.5 million was due at signing and additional progress payments were scheduled throughout the contract term.

Per its terms, the agreement is governed by Minnesota law. It required Dahmes to install the dryer with an initial completion date of December 1, 2015, and a final operation-ready completion date of January 1, 2016. Rembrandt contends those dates were included in the agreement to allow it to begin its proposed relationship with Kellogg. Dahmes states that it was largely unaware of why Rembrandt was building a new facility or how it was financing the project.

The agreement contained financial penalties for missed deadlines. The agreement also contained several confidentiality requirements that have been previously discussed in the course of this case. Because of the scale of the project, Dahmes was required to coordinate installation with the Rembrandt's general contractor. Rembrandt broke ground on its Thompson facility in the fall of 2014. The parties dispute whether the specific location of the dryer's installation was necessarily included in the agreement (i.e., was the agreement to provide a dryer for the Thompson facility or was the agreement to provide a dryer that Rembrandt merely intended to have installed at the Thompson facility).

Highly Pathogenic Avian Influenza (Avian Flu) is an aggressive illness fatal to domestic poultry. In the spring of 2015, an epidemic of Avian Flu hit the Midwestern United States. The outbreak was notorious and engendered a large amount of media coverage and government intervention. While six Rembrandt facilities were affected by the Avian Flu, the Thompson facility was not. Ultimately, Rembrandt was forced to eliminate over a million birds, which cut its production capacity by over 50%.

The causes of the Avian Flu outbreak are disputed. Rembrandt asserts that it took appropriate precautionary measures to avoid the outbreak and spread of an Avian Flu type illness. Dahmes contends that Rembrandt increased its risk by having an "in-line" production model in which eggs are hatched, raised, and processed in the same location. Dahmes posits that if these operations were kept separate, the impact of an Avian Flu outbreak could have been limited.

As a result of its lost capacity, Rembrandt declared a force majeure to its buyers and began distributing eggs and egg products on a pro rata basis. Rembrandt also limited access to its Thompson facility to reduce the risk of an Avian Flu infection. Egg prices went up and Rembrandt lost its opportunity to supply eggs to Kellogg at the quantities that Rembrandt had hoped.4 Rembrandt contends it lost other business and profits as a result of the Avian Flu outbreak and the market repercussions the outbreak caused. Dahmes contends that Rembrandt's problems were partly self-inflicted, such as being unable to provide cage-free eggs requested by one of its biggest customers, General Mills. Dahmes argues that Rembrandt had already missed opportunities with Kellogg prior to the Avian Flu outbreak and that Rembrandt had failed to achieve its objectives with Kellogg as early as late 2014. Finally, Dahmes contends that Rembrandt was largely compensated for the damages from the Avian Flu outbreak by insurance and government payments.

In May 2015, Rembrandt told its contractors, including Dahmes, of a temporary halt on the new Thompson facility. The parties agree that on October 22, 2015, Rembrandt informed Dahmes that the expansion was not happening. Dahmes told Rembrandt that this constituted a breach of contract. In January 2016, Rembrandt's board voted to formally scuttle the construction project and write off the costs occurred. Rembrandt's exact financial situation at the time, along with the reason the board decided to scuttle the project, are disputed by the parties.

Prior to the alleged breach, Rembrandt had paid Dahmes $4.31 million, although it appears that $546,000 was subsequently returned to Rembrandt per the parties' agreement. Dahmes presented Rembrandt with a one page accounting summary of its alleged damages, which purported to itemize claims for lost profits of $2.4 million, $329,000 in alleged costs incurred for suspending work in process, and actual expenses allegedly incurred of $992,000.

Other relevant facts are discussed below.

IV. SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A material fact is one that "`might affect the outcome of the suit under the governing law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, "the substantive law will identify which facts are material." Id. Facts that are "critical" under the substantive law are material, while facts that are "irrelevant or unnecessary" are not. Id.

An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when "`a reasonable jury could return a verdict for the nonmoving party' on the question." Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, or evidence that is "merely colorable" or "not significantly probative," Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.

As such, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" so as to "require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 248-49. The party moving for entry of summary judgment bears "the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, "because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses." Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, "the court's function is to determine whether a dispute about a material fact is genuine." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

On cross motions for summary judgment, the "court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard." 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998). When the parties seek summary judgment on some of the same issues, I may consider all the parties' arguments as to each issue, keeping in mind the separate inferences that are to be drawn from each motion. See Wright v. Keokuk Cnty. Health Ctr., 399 F.Supp.2d 938, 946 (S.D. Iowa 2005).

V. ANALYSIS

In its motion for summary judgment, Rembrandt makes three arguments. First, that it is entitled to summary judgment on its declaratory judgment claim based on the doctrine of frustration of purpose. Second, Rembrandt is entitled to summary judgment on Dahmes' breach of contract counterclaim. Finally, Rembrandt argues that it is entitled to summary judgment on Dahmes' counterclaim for lost profits.

Dahmes requests that the court "enter an Order in Dahmes' favor granting Dahmes' Motion for Summary Judgment and dismissing Rembrandt's Complaint. . ." Doc. No. 54 at 2. Dahmes then goes onto request a trial on the issue of its damages. Accordingly, then, it seems Dahmes is requesting summary judgment on Rembrandt's declaratory judgment claim and in favor of its breach of contract counterclaim.

A. Breach of Contract

At the outset, the parties agree that they entered into a contract and that Rembrandt breached that contract. Their dispute is whether the breach is excusable. As noted above, when considering cross motions for summary judgment, I must consider the issues individually to preserve the proper deference to the non-moving party. In this instance, the parties raise wholly separate rationales in support of their respective motions. Accordingly, I will consider the motions separately.

1. Frustration of Purpose

a. Rembrandt's Argument

Rembrandt's motion for summary judgment is rooted in the doctrine of frustration of purpose. As set out in Rembrandt's brief:

Doc. No. 53-1 at 14.

Rembrandt states that the principal purpose of the agreement with Dahmes was to "supply equipment for the egg processing facility under construction at Rembrandt's location in Thompson, Iowa." Id. Rembrandt then makes its argument regarding each frustration of purpose element. Regarding the purpose of the contract, Rembrandt argues:

Id. at 14-16.

Regarding frustration, Rembrandt argues that its purpose was thwarted by the Avian Flu outbreak:

Id. at 16-17.

Regarding the second element, Rembrandt argues that "a party is not at fault for the frustration of a contract's principal purpose if it did not cause the frustrating event. See Formanek, 459 N.W.2d at 177." Id. at 18. Rembrandt states that the Avian Flu outbreak frustrated its ability to build the Thompson facility and that the outbreak was outside its control.

Regarding the third element, Rembrandt argues:

Id. at 18.

b. Dahmes' Response

Dahmes argues that summary judgment is not appropriate because of a multitude of disputed facts, including:

Doc. No. 70 at 15.

Dahmes also argues that Rembrandt's frustration of purpose argument fails because the parties did not have a shared purpose in the agreement.

Id. at 4-5.

Next, Dahmes argues that the cases Rembrandt cited in support of its frustration of purpose argument are factually distinct. Regarding Formanek, 459 N.W.2d at 177, Dahmes points out that it involved a post-trial appeal, not a motion for summary judgment. Dahmes argues that because of the procedural posture of that case and the distinct facts, which involved a governmental property assessment, the Formanek holding is not applicable here. Moreover, Dahmes argues that in Formanek, the parties agreed on a shared purpose for the breached contract.

Similarly, Dahmes argues that Orix Pub. Fin., LLC v. Lake Cty., Minn., Civil No. 11-3261, 2013 WL 6328865, at *12 (D. Minn. Dec. 5, 2013), referenced above, is another government-related property dispute that is distinct from this case because both parties in that case understood the purpose of the agreement. Regarding Pieper, also referenced above, Dahmes argues:

Doc. No. 70 at 7.

Finally, Dahmes makes factual arguments about the actual purpose of the contract and contends that even if that purpose was frustrated, Rembrandt was not faultless.

c. Analysis

As noted above, the parties agree on Minnesota's three-element test for the frustration of purpose doctrine: (1) the party's principal purpose in making the contract is frustrated; (2) without that party's fault; and (3) by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made. The parties agree about virtually nothing else.

Perhaps the most important dispute concerns the purpose of the agreement. In Formanek, the Minnesota Court of Appeals stated:

Formanek, 459 N.W.2d at 176. Both parties seize on portions of this quote to make their arguments. Rembrandt is correct that the party claiming discharge (Rembrandt) is the holder of the purpose that must be frustrated. Put another way, Dahmes cannot claim discharge of the contract based on frustration of purpose if the only purpose that was frustrated was Rembrandt's.

However, even though Rembrandt's is the relevant purpose, Dahmes is correct that Rembrandt fails to consider the next portion of the Formanek quotation, wherein the court explained that the purpose claimed by party seeking discharge (Rembrandt) must be so basic and obvious that both parties understand it. Thus, the proper reading of Formanek is that only the party whose purpose was frustrated may claim frustration of purpose, but the purpose allegedly frustrated must be so basic that both parties to the agreement understood it.

Dahmes argues the agreement was a simple purchase agreement and the purposes were no more complex that Dahmes wanted to sell a dryer, and Rembrandt wanted to buy it. Dahmes points to the second paragraph of the agreement, which states:

Doc. No. 53-3 at 18. Rembrandt, by contrast, argues that the purpose of the agreement was much more specific in that the dryer was to be purchased for installation at a new facility in Thompson, Iowa. Rembrandt argues that both of those facts (the dryer was for a new facility and the facility would be located in Thompson) constitute the fundamental purpose of the agreement.

Neither parties' position is clearly wrong. Rembrandt is correct that the agreement states that the dryer was to be installed at the new Thompson facility, such that the Thompson installation could understood to be fundamental to the agreement. Dahmes is correct that Rembrandt is a large egg producer with numerous facilities and that the express terms of the contract do not make it clear that Rembrandt's purpose would be frustrated if the anticipated new Thompson facility was not built. The language of the agreement does not, by itself, resolve these competing positions.

Both parties agree that I can consider extrinsic evidence to determine the purpose of the contract. Pieper, 390 F.3d at 1066. Rembrandt makes extensive arguments about how its business required increased production during a specific time frame at the new Thompson facility so it could make sales to Kellogg. Dahmes contends that Rembrandt considered installing dryers at other locations to increase production, and that the new Thompson facility was merely incidental to Rembrandt's actual goal of buying an additional dryer to increase production. None of the evidence offered by the parties is uncontroverted such that I can determine the purpose of the contract without weighing the evidence and making factual findings. Viewing the evidence in light of the non-moving party (Dahmes), I could find that the installation of the dryer at the new Thompson facility was not a primary purpose of the contract. Because there is a genuine factual dispute about the purpose of the agreement, this issue is not ripe for summary ruling.

More importantly, even if I could determine the purpose of the agreement in a summary fashion, the remaining factors clearly present contested factual issues. Whether the purpose of the contract was frustrated is in dispute. Dahmes correctly points out that the facts of this case are significantly different from those at issue in the cases Rembrandt has cited. In the factually most analogous case, Pieper, the contract in dispute was for the purchase of hogs. The agreement in that case articulated what would cause a frustration of purpose. The defendant agreed to buy piglets from Pieper, to be raised by a third party, and then marketed and sold per the terms of an existing agreement to another company (Farmland). The contract stated, "LOLFF will purchase such pigs from [Pieper] only while its Customers have the ability to market such pigs utilizing the Farmland America's Best Pork Marketing Agreement No. 8073 dated November 14, 2000 and originally assigned to Pieper, Inc." Pieper, 390 F.3d at 1064. When the third party could not sell hogs utilizing Farmland's agreement, the court was able to determine the express purpose of the contract, as described in the contract itself, and find that the purpose had been frustrated. Id. at 1066.

Similarly, in Orix the agreement at issue stated that its purpose was to provide a municipality with funding to help secure a federal grant. Orix, 2013 WL 6328865, at *13. When it became clear that the municipality could not get the grant, the explicit purpose was frustrated. Id. Finally, Formanek dealt with a complex agreement between a city and certain landowners, and a special assessment agreement for the city to develop the landowners' property. Ultimately, the U.S. Army Corps of Engineers exercised discretionary authority over the property and halted development. Based on the contract language and the undisputed intervention by the Corps of Engineers, the court was able to conclude that the contract's fundamental purpose had been frustrated. Formanek, 459 N.W.2d at 174-75.

Nothing about this case is as clear cut. Rembrandt fails to point to the specific moment that the contract's purpose was frustrated. Was it when the outbreak of Avian Flu occurred? Was it later, when Rembrandt's board decided not to go forward with the Thompson plant? Was it when Kellogg decided to reduce its dependence on egg products? Was it when Rembrandt's financing collapsed? The cases Rembrandt relies on involved situations in which the alleged frustration was clearly defined and easily attributable to outside forces. Here, by contrast, there is no way to resolve the "frustration" issues without making detailed factual findings.

The second element (whether the party claiming frustration of purpose is faultless) presents similar uncertainties. Viewing the evidence most favorably to Dahmes, there are questions regarding whether Rembrandt's own actions contributed to the collapse of the agreement. Specifically, Dahmes alleges that Rembrandt engaged in an intentionally risky expansion gambit and damaged its prospects for expanding its sales to Kellogg through bad business decisions prior to the Avian Flu outbreak. All these allegations are supported by at least some evidence, such as Rembrandt's admissions about the risky nature of its expansion and Kellogg's statements that it had made no guarantees that it would increase its business with Rembrandt.

Finally, the third element is that "the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made." Like the purpose of the contract, the occurrence must also be understood by both parties to the contract. See Formanek, 459 N.W.2d at 177 ("Here, both parties testified that they would not have entered the agreement if they had known the Corps might require further permits. The non-occurrence of the Corps taking discretionary authority of the Project was a basic assumption on which the contract was made."). Rembrandt argues that successful completion of the Thompson expansion was the event assumed by both parties. However, this is a factual assertion that must be proved. I cannot find, based on either the terms of the agreement or the undisputed facts, that Dahmes had any specific expectation regarding the Thompson facility when it entered into the agreement.

For all those reasons, Rembrandt's motion for summary judgment on its request for declaratory relief will be denied.

B. Dahmes' Motion for Summary Judgment

Dahmes requests summary judgment on its claims for breach of contract counterclaim. In support of its motion Dahmes notes that the contract was breached and Rembrandt's various grounds for excusing the breach.

1. Commercial Impracticability

In its complaint, Rembrandt alleges that its breach is excused based on the doctrine of commercial impracticability as set out in the Uniform Commercial Code. Doc. No. 1. Dahmes makes several arguments that commercial impracticability does not apply to the present case. In response, Rembrandt states:

Doc. No. 69 at 4 n.2. Accordingly, I need not consider this issue.

2. Force Majeure

a. Dahmes' Argument

Dahmes argues that force majeure supersedes any other claims Rembrandt may raise to excuse the breach:

Doc. No. 54-8 at 15. Dahmes then states:

Id. at 16-17. Dahmes then goes on to argue that Rembrandt has waived any force majeure claim. Rembrandt does not dispute this point. Doc. No. 69 at 14-15. Rather, Rembrandt argues that the force majeure clause has nothing to do with the present dispute.

b. Rembrandt's Argument

Rembrandt states:

Doc. No. 69 at 12. Rembrandt then argues that Dahmes has confused the meaning of force majeure:

Id. at 12-14.

Finally, Rembrandt argues that by its terms, the force majeure clause does not apply to Rembrandt's breach:

Id. at 15.

The force majeure clause states:

Doc. No. 53-3 at 28. Regarding "the Work," the agreement states:

Id. at 18. Based on this language, Rembrandt argues:

Doc. No. 69 at 16-17.

c. Analysis

Dahmes asserts two arguments in favor of its motion for summary judgment: (1) the agreement's force majeure clause applies to Rembrandt's breach of the agreement; and (2) the force majeure clause supersedes any common law remedies such as frustration of purpose. Neither argument is well-grounded in facts or law.

With regard to Dahmes' argument that the force majeure clause must control, the express language of that clause demonstrates that it does not apply to the events at issue here. As noted above, the clause addresses a "failure or delay in performance of the Work caused by war, riots, insurrections, proclamations, floods, fires, explosions, acts of any governmental body, terrorism, or other similar events beyond the reasonable control and without the fault of such party." Doc. No. 53-3 at 28. The phrase "the Work" is defined to mean Dahmes' efforts in building, delivering and installing the dryer. Id. at 18. Thus, the clause applies to a failure or delay in the performance of Dahmes' obligations under the contract.

No such failure or delay occurred here. Dahmes' work progressed as planned until Rembrandt directed Dahmes to discontinue work because Rembrandt decided to scuttle its Thompson construction project. This was not a force majeure event, as defined in the contract. Nor does any language in the force majeure clause suggest that it was written to apply if one party to the contract makes a unilateral decision to terminate performance of the contract for market-based reasons. Accordingly, Dahmes' claim that the force majeure clause applies to this situation fails.

Dahmes has also failed to make a compelling argument that the force majeure clause restricts Rembrandt's ability to rely on the doctrine of frustration of purpose. At the outset, it is worth noting that Dahmes failed to cite any case holding that a force majeure clause precludes a frustration of purpose claim. Instead, Dahmes cites a number of cases that vaguely discuss force majeure in the context of other possible breach of contract remedies. For example, in its reply brief (Doc. No. 71) Dahmes cites First Data Res., Inc. v. Int'l Gateway Exch., LLC, No. 8:03CV137, 2004 WL 2187566, at *9 (D. Neb. Sept. 28, 2004), a case that discusses both force majeure and frustration of purpose. In general, two companies had a plan to distribute prepaid credit cards with Western Union serving as a third party vendor at which card purchasers could "load" their cards with money. The contract had a broad force majeure clause:

First Data, 2004 WL 2187566, at *3. Western Union failed to perform its function as a third party agent, causing the agreement to fall apart. The court found:

Id. at *8. In no way does the First Data court's analysis support Dahmes' argument. Rather, the case seemingly supports the proposition that a force majeure clause and a common law remedy can be complementary.

Another case cited by Dahmes, Perlman v. Pioneer Ltd. P'ship, 918 F.2d 1244, 1248 (5th Cir. 1990), involved a voided lease with a narrow force majeure clause. The Fifth Circuit held that the district could erred by applying the common law force majeure doctrine rather than the force majeure clause set forth in the contract. Id. The facts of Perlman are not analogous to those present here because, as discussed above, no party to this case is actually claiming a force majeure situation. In Commonwealth Edison Co. v. Allied-Gen. Nuclear Servs., 731 F.Supp. 850, 856 (N.D. Ill. 1990), another case cited by Dahmes, the court pointed that a boilerplate force majeure clause should be interpreted in light of the common law doctrine while a specifically-negotiated force majeure clause should be interpreted using contract principals.

In EAD Control Sys., LLC v. Besser Co. USA, 2012 WL 2357572, at *3 (N.D. Iowa 2012), another case cited by Dahmes, this court applied Iowa case law that bars an unjust enrichment claim when the parties have an express contract. Again, that case fails to support Dahmes argument that under Minnesota law, an inapplicable force majeure clause precludes a frustration of purpose of claim.

However, one case cited by both parties, Pieper, is on point, as it applied Minnesota law to a contract dispute with both a force majeure clause and a claim for frustration of purpose. In Pieper, the contract had a force majeure clause similar to this case:

Pieper, Inc. v. Land O'Lakes Farmland Feed, LLC, C02-90083-RP, Doc. No. 1 (S.D. Iowa 2000). The district court entered summary judgment in favor of the buyer on its affirmative defense of frustration of purpose (Id. at Doc. No. 77) and the Eighth Circuit affirmed. Pieper, 390 F.3d at 1066. The court made no mention of any alleged conflict or inconsistency between the force majeure clause and the frustration of purpose doctrine. This situation is similar. While the contract contains a force majeure clause, no authority suggests that the existence of such a clause precludes the doctrine of frustration of purpose. As such, Rembrandt is not barred from attempting to prove frustration of purpose at trial. Dahmes' motion for summary judgment on this issue will be denied.

C. Other Issues

1. Dahmes' Motion Regarding Accounting

In its complaint, Rembrandt's third count seeks an accounting of Dahmes' expenses to determine what portion of Rembrandt's payments Dahmes is entitled to keep. Doc. No. 1 at 4. In its brief, Dahmes argues that it is entitled to summary judgment on Rembrandt's accounting claim because it has provided an accounting. Doc. No. 54-8 at 33. Rembrandt admits that Dahmes provided a damage estimate but alleges that the estimate is not accurate and includes unrecoverable expenses such as attorney's fees. Doc. No. 69 at 16-17. As this is a factual dispute, summary judgment is not appropriate and the matter will be determined at trial. Dahmes' motion for summary judgment on the accounting claim will be denied.

2. Rembrandt's Motion Regarding Lost Profits

Dahmes makes a claim for lost profits. Rembrandt moves for summary judgment on the lost profits claim, arguing that lost profits are speculative and that speculative damages are prohibited by Minnesota law. See Tech. Corp. v. Cisco Sys. Inc., 395 F.3d 921, 928 (8th Cir. 2005). Specifically, Rembrandt states:

Doc. No. 53-1 at 19. Dahmes responds:

Doc. No. 70 at 20-21.

Although I am inclined to agree with Rembrandt that Dahmes' claim for lost profits is inherently speculative — and thus barred by Minnesota law — I will find it appropriate to deny the request for summary judgment on this issue and reserve ruling until I have had the opportunity to hear the evidence at trial.

3. Rembrandt's Motion Regarding the Confidentiality Claim

Finally, as noted above, Dahmes asserts a counterclaim alleging that Rembrandt breached the parties' agreement by attaching exhibits A and D to the complaint in this case. See Doc. No. 14 at 13-14, referencing Doc. No. 1. Dahmes contends that the agreement contained provisions to keep financial information confidential and that Rembrandt breached that agreement by including the exhibits with the complaint. Id.

Rembrandt moves to summarily dismiss that claim, arguing that the exhibits attached to the complaint were not covered by the confidentiality provisions of the agreement and, even if they were, Dahmes cannot prove any damages. Dahmes has not resisted Rembrandt's motion on this issue. See Doc. No. 70. Accordingly, for the reasons set forth by Rembrandt, Rembrandt's motion for summary judgment regarding Dahmes' confidentiality/breach of contract counterclaim will be granted.

VI. CONCLUSION

For the reasons set forth herein:

1. Rembrandt's motion for summary judgment (Doc. No. 53) is granted in part and denied in part. The motion is granted with regard to Dahmes' breach of contract/confidentiality counterclaim and is denied in all other respects.

2. Dahmes motion for summary judgment (Doc. No. 54) is denied in all respects.

3. This case will proceed to trial as scheduled beginning September 18, 2017.

IT IS SO ORDERED.