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finding that "[n]o business would agree to perform to its detriment" but determining that standard of commercial reasonableness was fact driven assessment precluding disposition at the summary judgment stage."
Summary of this case from E. Claiborne Robins Co. v. Teva Pharm. Indus. Ltd.Opinion
Civil No. 03-5441 (PAM/RLE).
January 14, 2005
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment and on Plaintiff's Motion to Exclude Defendants' Expert. For the reasons that follow, Defendants' Motion is granted in part and denied in part and Plaintiff's Motion is denied.
BACKGROUND
A. The Parties
This case arises out of a contract between Plaintiff LeMond Cycling, Inc. ("LCI") and Defendants PTI Holding, Inc. and Protective Technologies International, Inc. (collectively, "PTI"). Greg LeMond is a former professional cyclist, who won the Tour de France in 1986, 1989, and 1990. In 1989, Sports Illustrated named LeMond one of the forty most influential people in sports over the past forty years. LeMond is also a member of the Cycling Hall of Fame.
In 1995, LeMond founded LCI to handle his business relationships and licensing agreements in the cycling industry. LeMond receives significant income and royalties from these business arrangements. In particular, LeMond has a license agreement with Trek Bicycle Corporation ("Trek"), for Trek to manufacture and distribute high-end bicycle frames through Independent Bicycle Dealers ("IBD"). In 1995, sales amounted to $3 million, and for 2004, sales are expected to reach $17 million. (LeMond Aff. ¶¶ 4-6.)
PTI is a manufacturer and distributor of cycling accessories. In the 1990s, PTI had successful license arrangements with Mattel and Hasbro, selling cycling accessories under brand names like Barbie, Playskool and Tonka. PTI distributed these products to mass market retailers like Target, Wal-Mart, K-Mart and Toys R Us. In 2002, PTI entered into a license agreement with Schwinn. PTI has successfully sold the Schwinn line to Target, Wal-Mart, Toys R Us and other mass market retailers.
B. Terms of the Contract between PTI and LCI
In 1999, PTI sought to develop its own brand of cycling accessories under a new label. PTI special projects manager, David Haaf, approached LCI agent Warren Gibson about licensing the LeMond name to PTI. PTI and LCI entered into negotiations. PTI proposed "developing a long term licensing agreement for mass market bicycles, helmets and accessories . . . modeling the arrangement around Calvin Klein." (Brownell Aff. Ex. 2.) On June 22, 1999, PTI and LCI executed a "Deal Memo" to govern their relationship. (Id. Ex. 7.)
Under the terms of the Deal Memo, LCI permitted PTI to use the LeMond mark and name. (Id.) The duration of the Deal Memo was for ten years, and PTI retained the right to renew the Deal Memo for "two successive five year renewal periods." (Id. § 1.2.) LCI would receive $500,000, annually for the first ten years, and a six percent royalty on annual net sales that exceeded $8.33 million. (Id. § 4.1.)
The instant dispute focuses on PTI's contractual duties. The Deal Memo required that PTI "use its commercially reasonable efforts to develop, produce, market and distribute a good quality representative line for the Product Line, consistent with the image, reputation and accomplishments of LeMond, throughout the territory, to compete with major competitors in each item in the Product Line." (Id. § 9.1.) PTI further agreed to "market, advertise and promote the Product Line and the Mark in a manner consistent with the sales projections and annual marketing plan," and "coordinate, communicate and cooperate with LCI to keep it apprised of PTI's business and operations as they relate to the Product Line." (Id. §§ 9.2, 9.3.) PTI also specifically agreed to (1) provide "an outline of the product launch, an annual marketing and media plan, including proposed appearances, no later than two months prior to the commencement of each contract year;" (2) "maintain full and accurate books and records and provide to LCI . . . a full report of Net Sales;" and (3) "provide LCI, within thirty (30) days after each fiscal quarter of each contract year, a quarterly profit and loss statement." (Id. §§ 10.1-10.3.)
C. PTI, LCI and the Product Line
After the Deal Memo was signed in June 1999, PTI proceeded to work on developing the Product Line. According to the Deal Memo, the Product Line included bicycle helmets, accessories, and components. (See Ex. 7 at Exs. 2-3.) Unlike LeMond's relationship with Trek, PTI's Product Line was developed for the mass market retailers, like Target and Wal-Mart. PTI submitted proposals to Target, Wal-Mart and Toys R Us. Both Wal-Mart and Toys R Us rejected the line. PTI's proposal to Target included converting Target's entire bicycle accessory area to LeMond products, but Target only agreed to place six feet of the Product Line in its stores. Target also expressly rejected PTI's proposal to install a video kiosk that featured LeMond. In September 2000, PTI launched the LeMond Product Line in Target stores. Although the Deal Memo required PTI to provide LCI with an outline of the product launch and marketing plans, PTI failed to do so.
The LeMond Product Line did not perform well in Target stores. Although LCI originally declared that it was "very pleased with the LeMond Bicycle Accessory line," and that it believed that PTI had "done an excellent job designing and packaging LeMond products," this contentment quickly vanished. (McGhee Aff. Ex. M.) LCI asserts that PTI failed to conduct any promotional activities or advertising surrounding the product launch into Target stores. LCI further contends PTI failed to put forth any effort, much less commercially reasonable efforts, to create a consumer demand for the LeMond Product Line.
PTI argues that it was Target, not PTI, who controlled all Target advertising for the LeMond Product Line. PTI submits that Target retained discretion over the in-store placement of products, endcap advertising, and the use of video kiosks. However, LCI contends that PTI failed to do any other promotional or advertising activities to increase consumer awareness or create consumer demand for the LeMond products. PTI does not dispute that it did not promote the LeMond Product Line outside of Target in any magazines, newspapers, radio, television, or billboards. Other than the initial promotional video for the kiosk that Target rejected, PTI did not promote the LeMond Product Line outside of Target.
By December 2000, Target proposed reducing the amount of in-store shelf space allotted to the LeMond Product Line. In September 2001, shelf space in Target for the LeMond Product Line was reduced by Target from six feet to four feet. LCI complains that PTI failed to keep it informed that the Product Line was struggling. In February 2002, Target informed PTI that it would discontinue the LeMond accessory line. (Brownell Aff. Ex. 12 at 60 (LeMond Dep.).) LCI contends that PTI did not inform it of the discontinuance until the summer of 2002. (See id.)
Before Target discontinued the line, PTI again presented the LeMond Product line to Wal-Mart and Toys R Us. (McGhee Aff. Ex. E at 67 (Schaeffer Dep.).) Both retailers rejected the line. (Id. at 68.) Since Target discontinued the line, PTI presented the line to "various selective buyers," including Fred Meijers, Canadian Tire, and JB Importers. (Id. at 100-01.) All of these retailers likewise rejected the line. (Id.) PTI contends that expansion into the worldwide market was also futile, because its research demonstrated that the international expansion of the LeMond line would not generate any income. (Id. at 100.) PTI was successful in selling the LeMond magnetic resistance bicycle trainer to retailers including Gart Sports, Costco, Dick's Sporting Goods and Toys R Us. (See McGhee Aff. Ex. R.)
D. PTI and Schwinn
In the fall of 2001, PTI explored a license arrangement with Schwinn to distribute bicycle accessories under the Schwinn brand name. In the spring of 2002, PTI launched a Schwinn product line at Target. PTI also sold the Schwinn line to Wal-Mart, Toys R Us, and other mass market retailers. PTI's current revenues from Schwinn sales are $30 million. (Brownell Aff. Ex. 6 at 66 (Schaeffer Dep.).) LCI contends that since 2003, PTI has completely abandoned all efforts to sell the LeMond Product Line, despite the fact that six years remain on the contract. In March 2003, PTI offered to buy-out the remainder of the Deal Memo for $1,125,000. (Id. Ex. 22.) LCI rejected this offer. Despite the poor performance of the LeMond Product Line, PTI has continued and continues to pay LCI the annual guarantee of $500,000, as required under the terms of the Deal Memo.
E. LCI's Claims
The Complaint alleges three counts: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; and (3) anticipatory breach. LCI seeks both monetary and equitable relief. (See Compl.) LCI claims that PTI has breached various terms of the Deal Memo. In particular, LCI claims that PTI failed to use commercially reasonable efforts under the Deal Memo, in that PTI: (1) failed to use commercially reasonable efforts to market and sell the Lemond Product Line; (2) failed to use commercially reasonable efforts to build the brand as required by the Deal Memo; and (3) breached other provisions of the Deal Memo. (Pl.'s Mem. in Opp'n at 2.) As a result of PTI's failures, LCI contends that it has suffered $5.6 million in royalty damages. LCI further asserts that PTI should be enjoined from "using any designs, concepts or materials for any products . . . not bearing the Greg LeMond or LeMond name or trademark." (Compl. ¶ 45.) PTI disputes that it breached the Deal Memo.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must view the evidence in a light most favorable to the non-moving party. The burden of demonstrating that there are no genuine issues of material fact rests on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party has carried its burden, the non-moving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
B. Breach of Contract
To prevail on a breach of contract claim, LCI must prove that PTI breached a material term of the contract, and that this breach proximately caused damages to LCI. See Parkhill v. Minn. Mut. Life Ins. Co., 174 F. Supp. 2d 951, 961 (D. Minn. 2000) (Doty, J.).
1. Materiality
PTI first contends that the Deal Memo only imposed two material obligations: (1) PTI owed LCI an annual guarantee of $500,000; and (2) it required PTI to use commercially reasonable efforts to "develop, produce, market, and distribute a good quality line for the Product Line." (Brownell Aff. Ex. 7 § 9.1.) PTI submits that the only dispute is whether PTI used commercially reasonable efforts with the LeMond Product Line. LCI disagrees, and contends that PTI's failure to provide LCI with sales projections, quarterly net sales reports, and profit and loss statements also amounted to a material breach of the contract. (Pl.'s Mem. in Opp'n at 22-27.)
Whether a breach is material is generally a question of fact.See Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 49 (Minn.Ct.App. 1998). A material breach is a "substantial breach of contract, usu[ally] excusing the aggrieved party from further performance and affording it the right to sue for damages." Black's Law Dictionary 183 (7th ed. 1999). The Minnesota Court of Appeals has noted that a material breach "goes to the root or essence of the contract," and is "so fundamental to the contract that the failure to perform that obligation defeats an essential purpose of the contract."Skogberg v. Huisman, File No. C7-02-2059, 2003 WL 22014576 at *2 (Minn.Ct.App. Aug. 19, 2003). "[E]ven when express conditions of the contract are violated, the breach is not necessarily material." Id. at *3.
LCI contends that PTI's alleged failure to provide LCI with annual marketing and media plans, sales projections and sales reports was material. LCI argues that this duty is an integral part of the Deal Memo, because these documents evidenced PTI's performance under the fundamental obligation of the Deal Memo — to market and sell LeMond products. LCI further submits that these documents serve a "critical purpose in licensing agreements," because they allow the licensor to monitor sales and corresponding royalty payments.
The Court disagrees with LCI. The Deal Memo licensed the LeMond Mark to PTI. PTI was required to develop, produce, market and distribute bicycle accessories under this Mark. PTI was also required to pay LCI $500,000 annually, as well as 6% of sales over $8.3 million. The fact that PTI failed to give reports or other documents to LeMond does not frustrate the essential purpose of the contract. The obligation to produce these documents was not the "primary purpose" of the Deal Memo. See Steller v. Thomas, 45 N.W.2d 537, 542 (Minn. 1951). Furthermore, there is no causal connection between PTI's failure to provide LCI with these reports and LCI's alleged lost profit damages. LCI's alleged damages are lost profits and/or royalties that LCI allegedly would have received if PTI's efforts had allegedly been commercially reasonable. Therefore, these terms of the Deal Memo, by themselves, are not material as a matter of law. See I-Sys. Inc. v. Softwares, Inc., File No. 02-1951, 2004 WL 742082 at * 5 (D. Minn. Mar. 29, 2004) (Tunheim, J.) (contract required defendant to use "commercially reasonable" efforts to develop software product, "meet reasonable deadlines," and provide a "log of all hours spent on the development;" court determined that failure to provide log of hours "without more" was not material breach of contract). Accordingly, PTI's Motion is granted on this point.
However, whether or not PTI used "commercially reasonable efforts to develop, produce, market and distribute a good quality representative line for the Product Line, consistent with the image, reputation and accomplishments of LeMond, throughout the territory, to compete with the major competitors in each item in the Product Line" is a material term of the contract, as it is the "primary purpose" of the contract itself. (See Brownell Aff. Ex. 7 § 9.1.) Thus, the issue is whether PTI breached this duty.
As noted above, the Court rejects LCI's argument that other purported terms of the contract are material by themselves. However, this finding does not prevent LCI from presenting evidence of these alleged breaches to support its claim that PTI failed to use commercially reasonable efforts as required by § 9.1 of the Deal Memo.
2. Breach
The Deal Memo fails to define "commercially reasonable." PTI argues that "commercially reasonable" does not equate with "best efforts," and therefore "the Deal Memo did not ask much of PTI." (Defs.' Mem. in Supp. of Summ. J. at 19.) Rather, PTI submits that the Court should construe commercially reasonable as "incurring a financial detriment to the extent, or spending only what would be, reasonable in relation to the benefit obtained by the other party." (Id. at 18 (citing Douglas B. Levene, Acquisitions of Corporate Business Units, n. 18 (Practising Law Institute 1996)).) On the other hand, LCI is convinced that "commercially reasonable" requires an examination of customary practices within the licensing industry.
LCI relies on a recent case by Judge Kyle, which determined that "reasonable commercial standards of fair dealing" only requires evidence of industry practices. Auto-Chlor Sys. of Minn. v. JohnsonDiversey, 328 F. Supp. 2d 980, 1007 (D. Minn. 2004) (Kyle, J.). In Auto-Chlor, the contract involved the sale of goods and thus incorporated the Uniform Commercial Code ("UCC"), as applied under Tennessee law. Under the UCC, a court cannot find that a merchant observed reasonable commercial standards of fair dealing in the trade without evidence of industry practices. Unlike Auto-Chlor, this case does not involve the sale of goods between PTI and LCI, and arguably the UCC is not implicated. Even so, LCI's broad argument that only industry standards are relevant to the commercial reasonableness determination is unpersuasive. Although an objective component is instructive as to whether or not PTI acted with commercial reasonableness, there must be a subjective evaluation as well. No business would agree to perform to its detriment, and therefore whether or not PTI performed with commercial reasonableness also depends on the financial resources, business expertise, and practices of PTI.
Moreover, the fact that the Deal Memo is silent as to what is commercially reasonable precludes summary judgment in this case. There is simply not enough evidence before the Court to indicate what the parties intended at the time the Deal Memo was executed. Thus, what "commercially reasonable" means, and whether PTI's efforts conformed with this definition, remain material questions of fact.
3. Damages
Alternatively, PTI argues that LCI's damages are too speculative. LCI's alleged damages are $5.695 million in lost profits. Lost profits depend on the circumstances of each case.Cardinal Consulting Co. v. Circo Resorts, Inc., 297 N.W.2d 260, 267 (Minn. 1980). Lost profits are recoverable only if the loss is a natural and probable consequence of the breach and the amount of loss is ascertainable to a reasonable degree of certainty. Actual certainty is not required, but damages for lost profits must be supported by a reasonable factual basis. Id. Damages that are remote, speculative, or conjectural are not recoverable as a matter of law. Busch v. Busch Constr. Co., 262 N.W.2d 377, 399 (Minn. 1977).
LCI submits documents, deposition testimony, and expert reports to support its claim for lost profits. The burden is on LCI to demonstrate that, but for PTI's purported failures, the LeMond Product Line would have been more successful, generating greater revenues and thus resulting in greater royalties to LCI. Although the Court notes that this endeavor may prove difficult for LCI, particularly since the LeMond Product Line itself was new, the fact that LCI's alleged damages are not actually certain does not warrant summary judgment in PTI's favor. PTI further argues that LCI is unable to demonstrate that the alleged damages were caused by PTI's failures. The Court disagrees and concludes that this issue must remain for trial.
Finally, PTI submits that the Court must dismiss any claim that LCI has for damages arising out of the renewal periods under the Deal Memo. The term of the Deal Memo was for ten years, but it also included two five year renewal options. The right of renewal remained with PTI, and depended on the financial performance of the LeMond Product Line. (Brownell Aff. Ex. 7 § 1.2.) PTI contends that because LCI cannot prove both that the LeMond Product Line would have been profitable but for PTI's performance and that PTI would have chosen to renew the contract, any royalty claims based on the renewal periods must be dismissed. Although the Court notes the extreme difficultly that LCI may encounter in proving these damages, this difficulty does not warrant dismissal of any royalty claims relating to this period. Indeed, LCI bears the burden to prove, with reasonable certainty, these prospective damages were a direct consequence of PTI's purported breach and that these profits were "reasonably certain to accrue if the contract had not been breached." Force Bros. v. Gottwald, 183 N.W. 356, 357-58 (Minn. 1921). LCI has submitted sufficient evidence of damages to survive PTI's Motion, and therefore the issue of damages remains for trial.
In sum, LCI demonstrates that a genuine issue of fact remains as to the definition of "commercially reasonable," whether PTI failed to use "its commercially reasonable efforts to develop, produce, market and distribute a good quality representative line for the Product Line, consistent with the image, reputation and accomplishments of LeMond, throughout the territory, to compete with the major competitors in each item in the Product Line," and as to the amount of damages owed to LCI as a result. These issues remain for trial.
C. Anticipatory Breach
LCI also brings a claim for anticipatory breach of contract. Under the doctrine of anticipatory breach, "one party's refusal to perform a contract before the time for performance gives the injured party the right to treat the entire contract as broken and sue immediately for damages." Sheet Metal Workers Local No. 76 Credit Union v. Hufnagle, 295 N.W.2d 259, 262 (Minn. 1980). The Complaint seeks "a declaration that the Deal Memo is terminated because . . . Defendants have failed to use commercially reasonable efforts to develop, produce, market and distribute a good quality representative line for the Product line." (McGhee Aff. Ex. A ¶ 42.) Because a genuine issue of material fact exists on this very issue, PTI's Motion on this claim must also be denied.
D. Implied Duty of Good Faith and Fair Dealing
The Complaint also alleges that PTI breached its implied covenant of good faith and fair dealing with LCI. PTI contends that "Minnesota law does not recognize a cause of action for breach of implied covenant of good faith and fair dealing separate from the underlying breach of contract claim."Medtronic, Inc. v. ConvaCare, Inc. 17 F.3d 252, 256 (8th Cir. 1994) (citing Minnesota law). However, PTI misinterprets this holding. Rather, Minnesota law does not recognize a cause of action for breach of the implied covenant of good faith and fair dealing without an underlying breach of contract claim. See id.; see also Semanko v. Minn. Mut. Life Ins. Co., 168 F. Supp. 2d 997, 1002 (D. Minn. 2000) (Doty, J.). Because LCI brings both a breach of implied covenant of good faith and fair dealing and a breach of contract claim, and because LCI's breach of contract claim survives summary judgment, PTI's argument on this point is denied.
"Under Minnesota law, every contract includes an implied covenant of good faith and fair dealing requiring that one party not `unjustifiably hinder' the other party's performance of the contract." In re Hennepin Cty. 1986 Recycling Bond Litig., 540 N.W.2d 494, 502 (Minn. 1995) (citations omitted). Good faith requires a party to act honestly, whether negligently or not.See Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 125 (Minn.Ct.App. 1998). Bad faith exists when a party's refusal to fulfill its obligations is based on an ulterior motive. See id. A claim for breach of the implied covenant of good faith and fair dealing must not exceed the scope of the contract. Thus, LCI's claim pertains to whether PTI exercised bad faith in failing to use commercially reasonable efforts in its performance of the Deal Memo.
LCI submits that PTI "abandoned" LCI and its obligations under the Deal Memo when it engaged in its relationship with Schwinn. "Good faith performance of a contract includes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party." White Stone Partners, L.P. v. Piper Jaffray Co., Inc., 978 F. Supp. 878, 881 (D. Minn. 1997) (Tunheim, J.). Indeed, LCI has submitted evidence that PTI narrowly focused on its Schwinn obligations, despite its continuing obligation to LCI under the Deal Memo. PTI argues that it did not abandon its obligation under the Deal Memo, but rather that there was no demand or market for the LeMond Product Line. Viewing the evidence in the light most favorable to LCI, as the Court must do, there is a dispute of fact as to whether PTI exercised good faith in its performance under the terms of the Deal Memo. Thus, PTI's Motion on this point is denied. E. Daubert Motion
LCI brings a motion to exclude PTI's expert, Timothy Nantell, under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. Federal Rule of Evidence 702 sets forth the requirements for expert witnesses: (1) the evidence must be based on scientific, technical or other specialized knowledge useful to the factfinder; (2) the witness must be qualified to assist the factfinder; and (3) the evidence must be reliable or trustworthy. LCI attacks both the qualifications and reliability of Nantell. Under Daubert, the Court should examine factors including: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subject to peer review and publication; (3) whether there is a known or potential rate of error and whether there are standards for controlling the error; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific community. 509 U.S. at 592-95.
1. Qualifications
LCI first attacks Nantell's qualifications. Nantell is a professor of finance, and an expert in the field of financial management and business valuation. LCI contends that this experience is irrelevant to the "licensing" issues involved in this case. LCI concedes that Nantell is a qualified "damages" expert, but because PTI offers him as a "liability" expert, Nantell's testimony must be excluded.
There is no doubt that Nantell has significant experience in business finance. He has been a full professor of finance since 1982 and has been published in numerous publications on various subjects over the years. Nantell has testified as an expert witness before, but as LCI points out, these instances have focused primarily on damages rather than liability. Nevertheless, the Court disagrees with LCI that this distinction renders Nantell completely unqualified to render an opinion in this case. Damages and liability are interrelated subjects and, although Nantell is more qualified as a damages expert, damages are determined based on liability. LCI's argument on this point is without merit.
2. Reliability
LCI alternatively argues that even if the Court finds Nantell qualified as an expert, his conclusions are nevertheless unreliable. The crux of LCI's claims focuses on whether PTI's performance under the terms of the Deal Memo was "commercially reasonable." However, the Deal Memo fails to define this term. LCI contends that the objective "commercial reasonableness" standard, as ratified in the UCC, is the only method that can be used to evaluate PTI's actions. PTI disagrees and contends that although Nantell evaluates PTI's effort under his own definition and according to his own experience, this distinction does not render Nantell's opinion unreliable. As PTI points out, Nantell offers an opinion based on "a comprehensive analysis regarding the overall financial and economic abilities of a business to comply with its contractual obligations while remaining financially viable."
The Deal Memo does not expressly incorporate the UCC, but LCI insists that § 9.1 nonetheless incorporates the objective commercial reasonableness standard: "PTI will use its commercially reasonable efforts to develop, produce, market and distribute a good quality line . . . to compete with the major competitors in each item in the Product Line." Although this reference to "major competitors" may parallel a comparison to industry standards, the Court disagrees with LCI's assertion that there is only one definition for "commercially reasonable," and therefore only one method of evaluation. Furthermore, because there is a genuine issue of fact as to the definition of "commercially reasonable" under the Deal Memo, it is inconsistent to exclude various interpretations and analyses by experts. Finally, LCI will have a full opportunity to cross-examine Nantell. Thus, the Court denies LCI's Daubert Motion, as LCI's arguments challenge the weight, not the admissibility, of the evidence.
CONCLUSION
LCI has demonstrated that a genuine issue of material fact remains for trial on its claim for breach of contract, anticipatory breach, and implied covenant of good faith and fair dealing. Finally, LCI's Motion to exclude PTI's expert is denied, as LCI's challenge goes to the weight, rather than the admissibility, of such evidence.
Accordingly, based on all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion to Exclude (Clerk Doc. No. 25) is DENIED;
2. Defendants' Motion for Summary Judgment (Clerk Doc. No. 18) is GRANTED in part and DENIED in part as set forth in this Order.