Opinion
No. 98-CV-67-H(M).
September 3, 1999
Donald Lee Kahl, Kajeer Yar, Heather Reser Case, Hall Estill Hardwick Gable, Golden Nelson, Heather Elizabeth Brown, Williams Companies Inc, Tony Michael Graham, Graham Freeman PLLC, for MULTIMEDIA GAMES, INC., a Texas corporation, plaintiff.
Laurence Lindsay Pinkerton, Judith Ann Finn, Pinkerton Finn, for NETWORK GAMING INTERNATIONAL, CORP., sued as: Network Gaming, International Corporation, a, British Columbia, Canada, corporation, consolidated plaintiff.
Laurence Lindsay Pinkerton, Judith Ann Finn, Pinkerton Finn, for NETWORK GAMING INTERNATIONAL, CORP., a Canadian corporation, defendant.
Donald Lee Kahl, Kajeer Yar, Heather Reser Case, Hall Estill Hardwick Gable, Golden Nelson, Heather Elizabeth Brown, Williams Companies Inc, Tony Michael Grahm, Graham Freeman PLLC, for GORDON T GRAVES consolidated defendant.
Donald Lee Kahl, Heather Reser Case, Heather Elizabeth Brown, for LARRY D MONTGOMERY consolidated defendant.
Laurence Lindsay Pinkerton, Judith Ann Finn, Pinkerton Finn, for NETWORK GAMING INTERNATIONAL, CORP., counter-claimant.
Donald Lee Kahl, Kajeer Yar, Hall Estill Hardwick Gable, Golden Nelson, Heath Elizabeth Brown, [COR LD NTC], Williams Companies Inc, Tony Michael Graham, Graham Freeman PLLC, for MULTIMEDIA GAMES, INC., counter-defendant.
ORDER
This matter comes before the Court on Plaintiff Multimedia Games, Inc.'s ("MGAM's") Motion for Partial Summary Judgment filed March 1, 1999 (Docket # 57). In its Motion, MGAM seeks summary judgment on its claims for breach of Licensing and Distribution Agreement 1 ("LDA1"), breach of warranty, and breach of covenant of good faith, and on Network Gaming International's ("NGI's") claims for misappropriation of trade secrets, breach of Licensing and Distribution Agreement 2 ("LDA2"), fraud, constructive fraud, and breach of fiduciary duty, and money damages for software support. In addition, MGAM seeks partial summary judgment on NGI's affirmative defenses of failure to state a claim, waiver, failure of consideration, and fraud. For the reasons expressed herein, the Court concludes that the motion should be granted in part and denied in part.
I
For purposes of the instant motion, the following facts are undisputed:
1. MGAM is a Texas corporation with its principal place of business in Tulsa, Oklahoma, and is in the business of designing, developing, marketing, and maintaining various computer-based gaming systems, including a system for the computer linking of high-speed computer bingo games at multiple remote locations (the "MegaBingo system").
2. NGI is a Canadian corporation with its principal place of business in Vancouver, British Columbia, and is engaged in the business of developing, marketing, and distributing computer-based software for the electronic play of bingo games.
3. MGAM's system for the computer linking of high-speed computer bingo games at multiple remote locations allows thousands of players to play the same bingo game at the same time at multiple locations across the United States. MGAM markets this product under the trade name "MegaMania." MGAM has been granted a Notice of Allowance for this name by the U.S. Patent and Trademark Office, and its final registration approval is pending.
4. Another type of electronic bingo game, "regular hall bingo" or "session bingo," allows multiple players in a single hall to electronically mark and track multiple electronic bingo cards at the same time. In 1995 and 1996, NGI represented to MGAM that NGI possessed software for electronic bingo and was in the process for developing such software for regular hall bingo. In 1996 and 1997, regular bingo had great market potential for sales to charity organizations across the United States and NGI had knowledge of this.
5. In 1995, MGAM and AIQ, NGI's predecessor, began negotiations regarding the creation of licensing arrangements for the distribution of regular hall bingo and other game software and related equipment. In furtherance of these negotiation, on or about December 29, 1995, the parties entered into two letter agreements, one licensing MGAM to distribute AIQ software in the United States Native American market and the state of Texas, and another licensing AIQ to distribute Multimedia bingo and game software in Canada and China.
6. Both agreements were negotiated by Henry Jung, a chartered accountant representing NGI. NGI was also represented by counsel in the negotiation process, and counsel suggested numerous revisions during such process.
7. On or about May 10, 1996, NGI and MGAM entered into a written License and Distribution Agreement ("LDA1"). LDA1 granted to MGAM the right and license to distribute certain hardware equipment, the "MB-1000 unit," and the NGI software on any American Indian reservation within the United States and at any location within the State of Texas. Pursuant to the express terms of LDA1, it was to "replace . . . any and all former agreements, negotiations or understandings, written or oral, relating to the subject matter hereof."
8. Paragraph 1 of LDA1 provides in part:
[NGI] agrees to make available to MGAM all designs . . . programming and source codes, operations manuals, and all other technology . . . pertaining to the MB-1000 and [NGI] software. [NGI] agrees that MGAM shall have the right to sub-license third parties for the use of the Software; provided that such third parties shall not be provided with any source codes for such software[.]
9. LDA1 expressly defines the term "MB-1000" as "the MB-1000 Electronic Player Station System." LDA1 also expressly defines "the [NGI]-developed software utilized to run the MB-1000" as "the [NGI] software."
10. The "Marketing Commitment" of Paragraph 4 of LDA1 expressly relates only to purchase or revenue sharing orders for MB-1000 units. There is not such requirement within LDA1 that MGAM place orders for the NGI Software.
11. Though MGAM and NGI participated in conference calls several times a week, no formal Distribution Committee was ever formed or requested to be formed.
12. NGI agreed to make available to MGAM "all designs, drawings, diagrams, programming and source code, operations manuals, and all other technology . . . pertaining to the MB-1000 and [NGI] software."
13. Under LDA1, MGAM agreed to use commercially reasonable efforts to obtain minimum order levels of 5,000 of the MB-1000 units in each of two subsequent twelve month periods, subject to market conditions and the availability of units. Each MB-1000 unit sold by NGI during these periods was also to be applied to said marketing target.
14. LDA1 contemplated that NGI would make available an electronic bingo game referred to by the parties as "regular hall bingo" or "session bingo."
15. LDA1 further contemplated that MGAM would have available to it a regular hall or session bingo product to market in addition to MegaMania to assist in the placement of the MB-1000 units. NGI's general manager Henry Jung was aware of the importance of session bingo, because "hall bingo" would allow MGAM to distribute a large number of units into the field which would provide support to run MegaMania.
16. LDA1 provided that "Nothing herein shall be construed as to create any partnership, joint venture, agency, fiduciary or employment relationship between the parties . . .".
17. LDA1 does not contain any provision which requires MGAM to pay for software development or support.
18. To further their relationship, MGAM provided NGI with the specifications for the MegaMania software and system so that NGI could develop a derivative game to be run on NGI's remote bingo host units or their platform of choice.
19. In April 1997, MGAM was notified by the National Indian Gaming Commission ("NIGC") that changes to the software were required in order to comply with federal regulations. Specification for the changes were provided to NGI by May 8, 1997.
20. On or about June 11, 1996, MGAM and NGI entered into a second written Licensing and Distribution Agreement ("LDA2"), which granted NGI a license to market and distribute a variety of MGAM's class II bingo games, including MegaMania, in Canada and the Republic of China.
21. LDA2 provided that NGI shall "enter into sublicense arrangements of the MegaBingo system with a minimum of 240 gaming halls (the "Halls") during each of the two subsequent twelve (12) month periods . . . (the "Marketing Commitment")." The parties further agreed that "any sublicense arrangements arising from MGAM's marketing efforts in the Territories during the term of the Agreement shall be applied to reduce the Marketing Commitment." Finally, the parties agreed that they "shall jointly and separately develop and execute strategies and plans to market and distribute the MegaBingo system."
22. Under the terms of LDA2, NGI and MGAM jointly participated in a marketing presentation in British Columbia, and, pursuant to the terms of LDA2 requiring MGAM to "contribute the services of personnel capable of rendering the services that best reflect each party's particular expertise," MGAM provided the services of Cliff Barker in British Columbia.
23. Pursuant to LDA2, MGAM also separately marketed MegaMania to the Saskatchewan provincial government. MGAM received no business from the Saskatchewan provincial government.
24. NGI admits that MGAM did not disclose any confidential information to any third party that was not authorized by NGI.
All other facts relating to the legal relationship between MGAM and NGI and their claims and counterclaims are contested.
II
Summary judgment is appropriate where "there is no genuine issue as to any material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), and "the moving party is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c). InCelotex, the Supreme Court stated:
[t]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.477 U.S. at 322.
A party opposing a properly supported motion for summary judgment must offer evidence, in admissible form, of specific facts, Fed.R.Civ.P. 56(e), sufficient to raise a "genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) ("The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment"). "Factual disputes that are irrelevant or unnecessary will not be counted."Id. at 248.
Summary judgment is only appropriate if "there is [not] sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."Id. at 250. The Supreme Court stated:
[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.Id. at 252. Thus, to defeat a summary judgment motion, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);Anderson, 477 U.S. at 250 ("[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (citations omitted)).
In essence, the inquiry for the Court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 250. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).
III
MGAM has moved for summary judgment on its claims for breach of LDA1, breach of warranty, and breach of covenant of good faith, and on NGI's claims for misappropriation of trade secrets, breach of LDA2, fraud, constructive fraud, and breach of fiduciary duty, and money damages for software support. In addition, MGAM seeks partial summary judgment on NGI's affirmative defenses of failure to state a claim, waiver, failure of consideration, and fraud. The Court will address each of these matters in turn.
A. MGAM's First, Second, and Fifth Claims for Relief
MGAM's claims for breach of Licensing and Distribution Agreement 1, breach of warranty, and breach of covenant of good faith may all be construed as allegations that NGI materially breached the provisions of LDA1. See Plaintiff's Brief in Support of Motion for Partial Summary Judgment at 14. Specifically, MGAM claims that NGI failed to provide a session/electronic bingo product, failed to provide the source code to MGAM, and failed to make the changes required by the NIGC by the July 15, 1997 deadline. After a careful review of the record, the Court concludes that questions of fact remain as to whether a session/electronic bingo product was required under LDA1, whether NGI's refusal to provide the source code to MGAM was a material breach of LDA1, and whether NGI's failure to make the changes required by the NIGC by July 15, 1997 was a material breach of LDA1 or was excused by the terms of the Memorandum of Understanding between NIGC and Multimedia. Accordingly, the Court concludes that summary judgment is improper as to MGAM's First, Second, and Fifth Claims for Relief, and is therefore denied as to those claims.
B. NGI's Counterclaim for Misappropriation of Trade Secrets
MGAM requests summary judgment on NGI's counterclaim for misappropriation of trade secrets. To establish a claim for misappropriation of trade secrets under Oklahoma law, NGI must prove: (1) the existence of a trade secret; (2) misappropriation of that trade secret by MGAM; and (3) MGAM's use of the trade secret to NGI's detriment. See Okla. Stat. Ann. tit. 78, § 86 (West 1991); Micro Consulting, Inc. v. Zubeldia, 813 F. Supp. 1514 (W.D. Okla. 1990), aff'd, 959 F.2d 245 (10th Cir. 1992).
MGAM asserts in its motion that NGI cannot establish the existence of a trade secret with respect to its software executables, which consist of versions of the game to be played on the MGAM network and operating manuals relating to those games. Under Oklahoma law, a trade secret consists of
Information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
A. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
B. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Okla. Stat. Ann. tit. 78, § 86(4) (West 1991). By its nature, a trade secret must have a substantial element of secrecy. See Black, Sivalls Bryson, Inc. v. Keystone, 584 F.2d 946, 951 (10th Cir. 1978). MGAM argues that NGI has failed to present admissible evidence which would support a finding by a reasonable jury that the software executables at issue were trade secrets. The Court agrees. The Court cannot, as NGI does, rely on the identified portions of the affidavit of Henry Jung to rebut MGAM's record evidence. This testimony is replete with hearsay and conclusory, self-serving statements which are inadmissible.See Fed.R.Civ.P. 56(e); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995); Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995). Moreover, the provisions of LDA1 requiring MGAM to protect trade secrets do not specifically refer to the software executables at issue. See LDA1, at ¶ 9. Thus, NGI has failed to respond to MGAM's record evidence with admissible evidence of its own upon which a reasonable jury could find that the software executables are trade secrets under Oklahoma law, and MGAM is entitled to summary judgment on this claim.
C. NGI's Counterclaim for Breach of LDA2
MGAM requests summary judgment on NGI's counterclaim for MGAM's alleged breach of LDA2. Specifically, NGI asserts that MGAM failed to support an NGI presentation of bingo games in British Columbia and that MGAM independently pursued a business opportunity in Saskatchewan. NGI responds that LDA2 indicates that MGAM has developed technology allowing the bingo games to be played, see LDA2 at 1 (first "Whereas" clause), that MGAM failed to satisfy said obligation, and that section 1 of LDA2 makes NGI's right exclusive in Canada unless MGAM joins NGI.
With respect to NGI's claim that MGAM failed to support NGI's presentation of bingo games in British Columbia, this Court must, as a threshold matter, determine whether the prefatory language contained in the "whereas" clause gives rise to a contractual obligation on the part of MGAM. See LDA2, ¶ 16(a) (choice of law provision which states that LDA2 is to be construed according to the laws of the province of British Columbia). Based upon a review of the applicable authorities, the Court concludes that it does not. After having the opportunity to submit applicable British Columbia law in both the initial and supplemental briefing cycles, neither MGAM nor NGI has identified controlling British Columbia authority on this specific issue. The Court notes, however, that the authorities cited by both imply that only the express warranties contained in a contract bind the contracting parties. See, e.g., Magnetic Marketing v. Three Print Corp., 4 B.L.R.2d 8, 36 (B.S.B.C. 1991); In re Arbitration Act and Yarrows Ltd., 1949 W.W.R. 424 (B.S.B.C.). This is entirely consistent with the construction given to such prefatory language under Olkahoma law. See Ferrell Construction Co. v. Russell Creek Coal Co., 645 P.2d 1005, 1009 (Okla. 1982) (holding that recital clauses in a contract do not constitute a contractual commitment). Thus, the Court concludes that the "whereas" clause of LDA2 does not constitute a contractual commitment because as a matter of law the language contained in a "whereas" clause cannot support a claim for breach of contract. Accordingly, MGAM is entitled to summary judgment on this claim
With respect to NGI's claim that MGAM independently pursued a business opportunity in Saskatchewan, the Court must, as a threshold matter, determine whether LDA2 proscribed MGAM from pursuing such opportunities independently. MGAM argues that LDA2 expressly authorizes independent marketing on MGAM's part. See LDA2 at ¶ 4(b) (providing that MGAM and NGI "shall jointly and separately develop and execute strategies and plans to market and distribute the MegaBingo system."). NGI responds that LDA2 makes NGI's rights exclusive in Canada, notwithstanding the provisions cited by MGAM regarding the joint and separate development of marketing plans.
Based upon a review of the record, the Court concludes that the provision of LDA2 granting exclusive rights to NGI in Canada must be construed in a manner consistent with the provisions in LDA2 which provide that any sublicense arrangements arising from MGAM's marketing efforts during the term of the Agreement shall be applied to reduce the Marketing Commitment and that MGAM and NGI could " jointly and separately develop and execute strategies and plans to market and distribute the MegaBingo system." See LDA2 at ¶ 4(b) (emphasis added). Thus, the Court rejects NGI's proposed construction of the exclusivity provision of LDA2, since such a construction would eliminate the provision of LDA2 allowing MGAM separately to develop and execute marketing and distribution plans. Because LDA2 expressly provides that MGAM may independently market in Canada, NGI cannot establish that MGAM's presentation in Saskatchewan constituted a breach of any contractual provision contained in LDA2. Accordingly, MGAM is entitled to summary judgment on this claim.
D. NGI's Counterclaim for Fraud
MGAM also seeks summary judgment on NGI's counterclaim for fraud. In its Fourth Counterclaim for Relief, NGI asserts that at the time MGAM made the representations regarding its marketing of NGI's software, MGAM intended to supplant the MB-1000 system with its own system. In some limited instances under Oklahoma law, fraud may be predicated upon a promise to do a thing in the future. To proceed on such a fraud claim, however, the plaintiff not only must demonstrate the standard elements of fraud, but also must demonstrate that the promisor intended not to preform the promise at the time that the promise is made. See Citation Company Realtors, Inc. v. Lyon, 610 P.2d 788, 790 (Okla. 1980). Moreover, mere allegations of fraud in an action based solely in contract are insufficient to state a cause of action based on fraud. See, e.g., Isler v. Texas Oil Gas Corp., 749 F.2d 22, 23 (10th Cir. 1984); Fox v. Overton, 534 P.2d 679, 681 (Okla. 1975).
To set forth a claim of common law fraud under Oklahoma law, Plaintiffs must establish that Defendant (1) made a false material representation (2) as a positive assertion which is either known to be false or is made recklessly without knowledge of the truth (3) with the intention that it be acted upon and (4) which is relied upon by a party to the party's detriment. See Brown v. Founders Bank and Trust Co., 890 P.2d 855, 862 (Okla. 1995).
MGAM asserts that NGI's counterclaim for fraud relates solely to MGAM's alleged breach of contract and thus falls within the ambit of Isler. NGI responds that it has adduced facts which establish a tortious act sufficiently independent of the breach of contract to push the counterclaim outside of Isler. See, e.g., Atchison Casting Corp. v. Dofasco, Inc., 889 F. Supp. 1445, 1462 (D. Kan. 1995); Smith v. MCI Comm. Corp., 755 F. Supp. 354, 355 (D. Kan. 1990).
Assuming for purposes of the instant motion that the facts relating to NGI's fraud claim are independent from and unrelated to NGI's breach of contract claim for purposes of Isler, the Court concludes that the admissible facts proffered by NGI do not establish that MGAM intended not to perform the promise at the time that the promise was made. In its papers, NGI relies heavily on the affidavit of Henry Jung to support its claim. Mr. Jung's statements relating to the alleged fraud claim, however, are based on hearsay and make broad and conclusory statements about MGAM's intent which are unsupported by any admissible evidence. As a result, this Court may not consider them. See Fed.R.Civ.P. 56(e); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995); Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995). Moreover, based upon a review of the documents underlying Mr. Jung's affidavits, the Court concludes that none of those documents, assuming their admissibility, could support a finding by a reasonable jury that MGAM intended not to perform under LDA1 at the time it agreed to do so. Accordingly, the Court concludes that NGI cannot establish the essential element of intent of its fraud claim, and that MGAM is thus entitled to summary judgment on this claim.
E. NGI's Counterclaim for Breach of Fiduciary Duty
MGAM also seeks summary judgment on NGI's counterclaim against MGAM for breach of fiduciary duty. MGAM argues that as a matter of law NGI cannot establish that MGAM owed NGI a fiduciary duty.See Quinlan v. Koch Oil Co., 25 F.3d 936, 942 (10th Cir. 1994). The Court agrees. A fiduciary duty arising out of a commercial contract will not be recognized where the facts and circumstances are indicative of an arms-length commercial contract. See Quinlan, 25 F.3d at 942; Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 731 (10th Cir. 1991). A careful review of the record in this matter clearly indicates that the relationship between MGAM and NGI was of a commercial, arms-length nature, and was not of a fiduciary nature. Indeed, the express terms of LDA1 and LDA2 fully incorporate the mutual understanding of the parties in this regard:
Nothing herein shall be construed as to create any partnership, joint venture, fiduciary or employment relationship between the parties[.]See LDA1, ¶ 16(g); LDA2, ¶ 16(g). Thus, NGI's reliance on the law of partnerships and joint ventures is unavailing. See Defendant's Response at 27-28. Further, though NGI seeks to void the operation of these provisions of LDA1 and LDA2 by referencing pre-agreement representations on the part of MGAM, the provisions of LDA1 and LDA2 clearly indicate the parties' intentions that LDA1 and LDA2 constitute the entire understanding of the parties' relationship:
This Agreement expresses the entire understanding of the parties hereto and replaces any and all former agreements, negotiations or understandings, written or oral, relating to the subject matter hereof.See LDA1, ¶ 16(b); LDA2, ¶ 16(b). In addition, the undisputed facts of the case clearly establish that LDA1 and LDA2 were negotiated on behalf of NGI by Henry Jung, a chartered accountant in Canada, and indicate that NGI was actively represented by legal counsel during the negotiating process. In short, the Court finds nothing in the record before it upon which a reasonable jury could find that a fiduciary relationship existed between MGAM and NGI. Accordingly, MGAM is entitled to summary judgment on NGI's counterclaim for breach of fiduciary duty.
F. NGI's Counterclaim for Constructive Fraud
MGAM requests summary judgment against NGI on NGI's counterclaim for constructive fraud. Under Oklahoma law, constructive fraud is:
Any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault . . . by misleading another to his prejudice . . .; or . . . any such act or omission as the law specifically declares to be fraudulent, without respect to actual fraud.
Okla. Stat. Ann. tit. 15, § 59 (1991). To prove constructive fraud, a party must establish both the existence and breach of a legal or equitable duty. See Schulte v. Apache Corp., 814 P.2d 469, 471 (Okla. 1991); Roberts v. Wells Fargo AG Credit Corp., 990 F.2d 1169, 1173 n. 4 (10th Cir. 1993). NGI relies solely on the existence of a fiduciary duty owed NGI by MGAM to support its claim of constructive fraud. See Response of Plaintiff to Defendant's Motion for Partial Summary Judgment at 35-36. For the reasons previously expressed in this Court's discussion of NGI's claim for breach of fiduciary duty, NGI has set forth no evidence from which a reasonable jury could conclude that MGAM owed NGI a fiduciary duty. Accordingly, MGAM is entitled to summary judgment on NGI's counterclaim for constructive fraud.
G. NGI's Counterclaim for Money Damages for Software Support
MGAM further seeks summary judgment on NGI's counterclaim for software support under the provisions of LDA1. MGAM asserts that LDA1 contains no provision which obliges MGAM to pay software support to NGI. However, NGI responds that MGAM has recognized its obligation to pay by making partial payment for the software support rendered. Based on the present record, the Court concludes that a genuine issue of material fact exists with respect to MGAM's obligation to pay software support. Accordingly, MGAM's motion for summary judgment as to this claim is denied.
H. NGI's Affirmative Defenses
Finally, MGAM seeks summary judgment on NGI's affirmative defenses of fraud, waiver, failure of consideration, and failure to state a claim. Based on a review of the record and the applicable authorities, see Fed.R.Civ.P. 56(a, b), the Court concludes NGI is entitled to offer evidence relating to its affirmative defenses at trial, if appropriate, and thus denies MGAM's motion for summary judgment on those defenses.
IV
In summary, for the reasons set forth above, MGAM's Motion for Partial Summary Judgment is granted as to Network Gaming International's counterclaims for misappropriation of trade secrets, breach of Licensing and Distribution Agreement 2, fraud, constructive fraud, and breach of fiduciary duty, and denied as to MGAM's claims for breach of Licensing and Distribution Agreement 1, breach of warranty, and breach of covenant of good faith, NGI's counterclaim for money damages for software support, and NGI's affirmative defenses of failure to state a claim, waiver, failure of consideration, and fraud.
IT IS SO ORDERED.