United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This matter is presently before the court upon defendant's motion to dismiss. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
In his complaint, plaintiff alleges that he sought to purchase two Bitcoin Miners from the defendant in Spring 2013. He contends he ultimately failed to receive the Bitcoin Miners. He filed this complaint on December 2, 2013. He asserts five claims: (1) breach of contract; (2) fraud; (3) negligent misrepresentation; (4) deceptive acts under the Kansas Consumer Protection Act (KCPA); and (5) unconscionable acts under the KCPA. He seeks damages of $62, 632.19 and consequential damages of $5, 000, 000.
In its motion, the defendant raises a variety of arguments. BF Labs contends that (1) plaintiff is not entitled to consequential damages as a matter of law; (2) plaintiff fails to state a claim because he has acknowledged in his complaint that he agreed to a multi-month time-frame to ship the ordered devices; (3) plaintiff's fraud and negligent misrepresentation claims are barred by the economic loss doctrine; (4) plaintiff's negligent misrepresentation claim also fails to state a claim because it relates to promises of future action; and (5) plaintiff's claims under the KCPA fail because TradeMost pre-ordered the devices.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider , 493 F.3d 1174, 1177 (10th Cir. 2007). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003). In determining whether a claim is facially plausible, the court must draw on its judicial experience and common sense. Iqbal , 556 U.S. at 678. All well-pleaded facts in the complaint are assumed to be true and are viewed in the light most favorable to the plaintiff. See Zinermon v. Burch , 494 U.S. 113, 118 (1990); Swanson v. Bixler , 750 F.2d 810, 813 (10th Cir. 1984).
Some additional background of plaintiff's complaint is necessary to fully understand the claims and issues raised by the parties. The following allegations are contained in plaintiff's complaint: (1) plaintiff, through TradeMost, wire transferred $62, 598 to BF Labs for two Bitcoin Miners in late Spring 2013; (2) BF Labs manufactures specialized technology equipment for Bitcoin mining; (3) when plaintiff purchased these Bitcoin Miners, he understood and agreed that the products were to be shipped according to placement in the order queue and delivery might take two or more months; (4) BF Labs advised plaintiff that it was impossible to know when a device would ship from its facilities and even told him that he may have to wait until the machines were in stock to fill his order; (5) when plaintiff had not received his Bitcoin Miners by October 2013, he advised BF Labs that he would refuse any shipment; and (6) plaintiff claims that if he had received the Bitcoin Miners earlier, he would have "mined" approximately 5, 000 to 7, 500 Bitcoins.
The nature of Bitcoins is set forth in plaintiff's complaint as follows:
8. A Bitcoin is a unit of intangible currency that exists only on the internet, without direct ties to any single nations monetary system (though Bitcoins are regularly exchanged for sovereign currencies like the U.S. dollar and the British pound).
9. As of the time of this writing, one Bitcoin is worth approximately US$1, 000.
10. Bitcoins are earned, or "mined, " by solving a complex mathematical riddle, which requires a large amount ...