                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                     FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-14333                     October 17, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                         ________________________                   CLERK

                     D.C. Docket No. 02-01927-CV-JEC-1

BIOMEDICAL DISPOSAL, INC.,

                                                        Plaintiff-Appellant,

                                     versus

MEDIQ/PRN LIFE SUPPORT SERVICES, INC.,

                                                        Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                              (October 17, 2006)

Before MARCUS, WILSON and COX, Circuit Judges.

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.1 BioMedical also contends that the district court erred in



        1
        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.

                                                    2
denying its untimely motion for leave to file a motion for partial summary

judgment and a supplemental response to MEDIQ’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.

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