Opinion
99 Civ. 0465 (RCC)
November 1, 2001
Opinion and Order
Plaintiff Mill-Bern Associates, Inc. ("Plaintiff" or "Mill-Bern") brings this suit against Defendant International Business Machines Corporation ("Defendant" or "IBM") claiming breach of contract, breach of the duties of good faith and fair dealing and violation of the Massachusetts Unfair Trade Practices Act. Defendant now moves for summary judgment. Simultaneously, Mill-Bern moves for partial summary judgment with respect to commissions it claims it is owed. For the reasons set forth below, Defendant's motion for summary judgment is granted and Plaintiff's motion for partial summary judgment is denied.
I. Background
This action arises over a series of agreements between the parties under which Mill-Bern acted as IBM's exclusive sales agent for microelectronics products in New England.
A. The 1993 Agreement
On January 8, 1993, the parties entered a three-year contract ("1993 Agreement") which dictated that Mill-Bern would receive five percent commissions on IBM products that it sold and shipped within its territory. 1993 Agreement, Messing Aff. Ex. A. Mill-Bern claims that its relationship with Digital Equipment Corporation ("Digital"), a major purchaser of microelectronic components with facilities in Ontario, Scotland, Singapore and Taiwan, made it attractive as a sales representative to IBM. Plaintiff's Rule 56.1 Statement in Opposition ¶ 1. In exchange for Mill-Bern's agreement to not represent competing manufacturers, IBM agreed to pay Mill-Bern a monthly amount equal to the average monthly commissions Mill-Bern had earned from the other manufacturers in the past three years. Id. § 15(d). The parties agreed that any disputes between them would be resolved in a non-jury trial by a New York court applying New York law. Id. § 14. The 1993 Agreement also included a provision barring either party from bringing a legal action more than one year after the cause of action arose. Id. § 2(f).
Except obviously for the Massachusetts Unfair Trade Practices Act claim, the parties agree that New York law will govern this action. See IBM's Memorandum in Support of Summary Judgment at 11; Mill-Bern's Memorandum in Opposition to Summary Judgment at 3.
Apparently, counsel for Mill-Bern objected to the one-year provision during negotiations of the 1993 Agreement. Nov. 23, 1992 Byrnes Letter to IBM, Messing Aff. Ex. K. However, the final agreement, signed by both parties, did include it. 1993 Agreement, Messing Aff. Ex. A § 2(f).
Additionally, the 1993 Agreement provided for split commissions, so that Mill-Bern and a sales representative from a different territory could share commissions if they both contributed to procuring a particular sale. Id. at Attachment C. IBM would only pay the split commission if the second sales representative promptly claimed it. Sept. 22, 2000 Bechtol Dep., Messing Aff. Ex. AA at 149-50. Further, IBM would not honor split commission requests submitted outside the one-year period. Id. at 185-86. IBM claims Mill-Bern's conduct demonstrates that it understood that it had to request the split commissions. For example, in May 1994 Mill-Bern requested such commissions for products IBM sent to Digital's Scotland facility. May 13, 1994 Mill-Bern Letter to IBM, Messing Aff. Ex. BB. Mill-Bern disagrees. First, Mill-Bern claims that it was not required to submit requests for split commissions. Plaintiff's Rule 56.1 Statement in Opposition ¶¶ 51-65. Second, the May 13 letter, according to Mill-Bern, was not a request for split commissions, rather a demand for payments long past due. Plaintiff's Rule 56.1 Statement in Opposition ¶ 56.
During the course of the 1993 Agreement, IBM discovered that the five percent commission it agreed to pay Mill-Bern was well above the market rate. Each of IBM's other sales representatives agreed to amend their agreements to replace the flat rate with a sliding scale, in which the commission rate would decrease as the representative's sales volume increased. Sept. 27, 2000 Gleason Dep., Messing Aff. Ex. P at 47-48, 103-04. IBM was unable to renegotiate its 1993 Agreement with Mill-Bern, however, and claims that it paid Mill-Bern the full amount of commissions owed under the contract. Id. at 115; see also Complaint ¶ 10 ("The dispute between the parties regarding commissions owed under the 1993 Agreement was resolved by IBM paying Mill-Bern approximately $1.7 million . . . .").
B. The 1996 Agreement
In April 1996, after the 1993 Agreement had expired, the parties entered another agreement, made retroactive to January 1996 and expiring on January 7, 1997 ("1996 Agreement"). 1996 Agreement, Messing Aff. Ex. B. Mill-Bern claims it agreed to the terms of the 1996 Agreement under pressure, since IBM had forced it to terminate its relationships with competing manufacturers. Plaintiff's Rule 56.1 Statement in Opposition at ¶¶ 21, 25, 35. While many of the terms of the 1996 Agreement were identical to the 1993 Agreement, the distinctions are noteworthy. First, the 1996 Agreement contained a sliding-scale commission provision. 1996 Agreement, Messing Aff. Ex. B § 7(a). Second, IBM could adjust the commission rates prospectively on 30 days notice to Mill-Bern. Id. § 7(d). Third, upon the 1996 Agreement's expiration, unless the parties entered a succeeding contract, IBM would have no obligation to pay Mill-Bern commission for orders placed but not shipped before the expiration date. Id. § 11(a). Fourth, either party could terminate the 1996 Agreement for cause. 1996 Agreement, Messing Aff. Ex. B at §§ 11(b) (c). Mill-Bern, however, had to give IBM 30 days notice before such termination to give IBM the opportunity to cure the alleged breach. Id. §§ 11(c) (a). If Mill-Bern terminated for cause, or either party terminated without cause, IBM would have to pay commissions on all orders it accepted prior to the termination notice and shipped within 90 days of the notice. Id. § 11(d) (concerning scenario in which Mill-Bern terminates for cause) and § 11(f) (concerning situation in which either party terminates without cause). Finally, IBM assumed discretion in determining whether to pay split commissions to Mill-Bern, that is, those commissions would not be guaranteed by the 1996 Agreement. Id. at Attachment C.
C. The 1997 Agreement
In January 1997, the parties executed a third agreement to cover 1997 ("1997 Agreement"). 1997 Agreement, Messing Aff. Ex. C. The 1997 Agreement was essentially identical to the 1996 Agreement. Two issues in this lawsuit stem from the 1997 Agreement. First, on October 9, 1997, Mill-Bern sought split commissions on shipments IBM had made to Digital's Singapore and Taiwan facilities as far back as December 1993. Oct. 9, 1997 Mill-Bern Letter to IBM, Messing Aff. Ex. DD. IBM agreed to pay commissions on shipments that took place on or after October 9, 1996, within the specified one-year time limit. Sept. 22, 2000 Bechtol Dep. Messing Aff. Ex. AA at 185-87; Dec. 18, 1997 IBM Letter to Mill-Bern, Messing Aff. Ex. EE. However, IBM did continue to pay Mill-Bern split commissions on products shipped to Digital's Singapore and Taiwan locations throughout the 1997 Agreement. Sept. 22, 2000 Bechtol Dep., Messing Aff. Ex. AA at 194.
IBM asserts it continually provided Mill-Bern with reports of shipments to Digital facilities and that Mill-Bern could have learned of those shipments prior to 1997. Messing Aff. Ex. F at Attachments 5-24. Mill-Bern disagrees. It submits that "only IBM had all the information needed to" calculate the split commissions. Plaintiff's Rule 56.1 Statement at ¶¶ 43, 46.
Second, in the summer of 1997 IBM began expressing discontent with Mill-Bern's representation. Aug. 13, 1997 IBM e-mail to Mill-Bern, Messing Aff Ex. HH. On December 18, 1997, the same day that it sent Mill-Bern a check in response to the October 9, 1997 demand for split commissions, IBM notified Mill-Bern that it would allow the 1997 Agreement to expire on January 7, 1998. IBM Letter to Mill-Bern, Messing Aff. Ex. II. In turn, on December 19, 1997, Miller attempted to terminate the 1997 Agreement for cause since IBM did not pay Mill-Bern all the split commissions it was allegedly owed. Miller Letter to IBM, Messing Aff. Ex. JJ. IBM contends the termination could not be effective on December 19 because Mill-Bern was required to give IBM 30 days notice to cure the alleged breaches. 1997 Agreement, Messing Aff. Ex. C at § 11(c). With this understanding, IBM paid Mill-Bern commissions only on orders that were shipped and invoiced on or before the expiration date of January 7, 1998.
Mill-Bern now seeks commissions from the 1997 Agreement on orders accepted prior to December 19, 1997 — the date of Mill-Bern's termination notice — and shipped by IBM within 90 days thereafter, as well as commissions from shipments to Digital's overseas facilities throughout the course of the 1993 and 1996 Agreements. IBM moves for summary judgment and Mill-Bern moves for partial summary judgment on the issue of the 1997 Agreement commissions.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate where the parties' submissions demonstrate "that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) ("In our view, the 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."). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating a summary judgment motion, the court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. The party seeking summary judgment bears the initial burden of showing that no genuine issue of fact exists. Celotex, 477 U.S. at 323. Once such a showing is made, the opposing party must present "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). However, the non-moving "may not rely on conclusory allegations or unsubstantiated speculation" to defeat the motion. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
B. Statute of Limitations
Mill-Bern filed this action on March 26, 1998. Accordingly, IBM argues that any claim arising before March 26, 1997 is barred by the contractual one-year statute of limitations. See 1993 Agreement, Messing Aff. Ex. A § 2(f) ("Neither party will bring any legal action against the other more than one year after the cause of action arose."); 1996 Agreement, Messing Aff. Ex. B. § 2(e) (same); 1997 Agreement, Messing Aff. Ex. C § 2(e) (same).
Mill-Bern argues that IBM should be estopped from pleading the one-year period and that the six year statute of limitations that normally controls contractual disputes in New York should apply to this cases See N.Y. C.P.L.R. § 213(2). Alternatively, Mill-Bern urges the Court to consider Mill-Bern's May 13, 1994 letter regarding split commissions as "legal action" for purposes of the one-year period. See May 13, 1994 Mill-Bern Letter to IBM, Messing Aff. Ex. BB.
"Under New York law . . ., parties to a contract are permitted to designate a limitations period shorter than the statutory period for filing actions based upon a contractual obligation." Int'l Fidelity Ins. Co. v. County of Rockland, 98 F. Supp.2d 400, 409 (S.D.N.Y. 2000); N Y C.P.L.R. § 201 ("An action . . . must be commenced within the time specified in this article unless . . . a shorter time is prescribed by written agreement."), but see Bologna v. NMU Pension Trust, 654 F. Supp. 637, 639 (S.D.N.Y. 1987) (cautioning that agreements limiting the time in which an action may be brought must be construed against the party invoking the shorter period). The New York Court of Appeals has upheld shortened time limitations as long as they are "reasonable." John J. Kassner Co., Inc. v. City of New York, 389 N.E.2d 99, 103 (1979); Par Fait Originals v. A.D.T. Sec. Sys., Northeast, Inc., 586 N.Y.S.2d 2, 2 (App.Div. 1992) (finding agreed upon one-year limitation period in which to bring contract claim is reasonable).
The provisions in the Agreements regarding the one-year statute of limitations are clear. Moreover, counsel assisted Mill-Bern during negotiations and specifically discussed this term. Nov. 23, 1992 Byrnes Letter to IBM, Messing Aff. Ex. K; Sept. 12, 2000 Miller Dep., Messing Aff. Ex. E at 22 (admitting he was represented by counsel during negotiations for agreements). Further, Mill-Bern signed all three agreements with IBM knowing this one-year provision would govern. While Mill-Bern may not have had precise information about the split commissions it was owed, it did receive shipping records of orders sent to Digital facilities. See Sept. 19, 2000 Ainsworth Dep., Messing Aff. Ex. I at 31-35 (Q: "So at that time [January 1995] you knew that IBM was shipping product to [Digital] in Taiwan in 1994; is that correct?" A. "Yes."); see also Messing Aff. Ex. F at Attachments 5-24 (shipping records demonstrating when products were shipped to international Digital facilities); Messing Aff. Ex. H at ¶¶ 62-91 (Mill-Bern admitting it received shipping records from 1994-1997, but arguing the records did not reflect the amount of commissions it was owed). Mill-Bern might not have known the exact amount of commissions due, but it could and should have known that it was owed some commissions within the one-year time limit. Accordingly, the Court finds the one-year provision is reasonable.
Thus, the question becomes whether equitable estoppel will aid Plaintiff. "[E]stoppel will apply if the defendants engage in fraud, misrepresentation, deception, or intentional concealment to induce a plaintiff to refrain from filing a timely action." Bove v. New York City, 213 F.3d 625, **2 (2d Cir. 2000) (table) (citing Farkas v. Farkas, 168 F.3d 638, 642 (2d Cir. 1999)). Here, Mill-Bern argues that it was entitled to receive commissions on all sales to Digital — no matter where the products were shipped — because Digital was headquartered in Mill-Bern's territory. Plaintiff's Rule 56.1 Statement in Opposition ¶ 41. Further, according to Mill-Bern, there was no need for a formal request for split commissions, because it was always understood between the parties — even after the 1996 Agreement gave IBM discretion in paying split commissions — that Mill-Bern would receive them for sales to Digital. Id. ¶ 66. Mill-Bern claims it had to rely on IBM to keep track of the split commissions it was owed because the commissions were calculated from customer invoices generated by IBM and it trusted IBM to calculate them appropriately. Id. ¶ 44. This argument strains credulity. Mill-Bern would like the Court to believe that after demanding split commission payments in May 1994, and receiving shipping records indicating IBM was shipping products to Digital's overseas locations, it had no opportunity or desire to confirm or question whether it was paid appropriate split commissions again until October 1997.
The only argument Mill-Bern makes that could support its estoppel theory is that IBM refused to provide it with copies of customer invoices. Plaintiff's Rule 56.1 Statement in Opposition ¶ 44 (citing September 19, 2000 Judi Ainsworth Deposition in which deponent, former employee of Plaintiff, states she requested customer invoices from several IBM employees but never received them directly). The portion of the transcript provided to the Court does not specify when the Mill-Bern employee requested these invoices or how many requests she made. Since Mill-Bern apparently spent three years willingly relying on IBM to calculate and pay its split commissions, one "refusal" by IBM to supply customer invoices, when it routinely supplied shipping records does not amount to "fraud, misrepresentation, deception, or intentional concealment." Bove, 213 F.3d at 625. Accordingly, Plaintiff's estoppel theory must fail. Further, the Court is not convinced by Plaintiff's unsupported argument that Mill-Bern's May 1994 letter was a legal action. Thus, to the extent Plaintiff's breach of contract, breach of implied covenant of good faith and fair dealing and violation of Massachusetts Unfair Trade Practices Act claims arise before March 26, 1997, they are time-barred and dismissed.
C. Commissions from 1997 Agreement
Mill-Bern also seeks commissions from the 1997 Agreement on orders it placed prior to its December 19, 1997 termination notice and that IBM shipped within 90 days. This claim is not barred by the statute of limitations. IBM argues summary judgment should be granted in its favor because Mill-Bern's notice of termination on December 19, 1997 was not effective since it did not give IBM the required 30 days to cure the alleged breach. See 1997 Agreement, Messing Aff. Ex. C § 11(c) (requiring that Mill-Bern give IBM 30 days notice before terminating for cause). IBM also contends that Mill-Bern did not have cause to terminate the 1997 Agreement. Mill-Bern argues IBM's failure to pay split commissions from the 1993 and 1996 Agreements and to include interest in its December 18, 1997 payment was a breach. Alternatively, Mill-Bern argues it did not need a reason to terminate the Agreement since it could have terminated without cause. While this is true, the Court notes that the Agreement still required 30 days notice prior to termination. 1997 Agreement, Messing Aff. Ex. C § 11(a).
The 1997 Agreement is also the subject of Mill-Bern's motion for partial summary judgment. Mill-Bern urges the Court to adjudge IBM liable for Mill-Bern orders that it accepted prior to December 19, 1997 and shipped within 90 days. Alternatively, Mill-Bern asks the Court to deny IBM's motion for summary judgment on the grounds that the expiration provision on which IBM relies, § 11(a), is unconscionable.
Section 11(a) states in part: "Upon expiration of this Agreement, except as expressly set forth herein, all obligations of either party under the Agreement shall immediately cease, including any obligation of IBM to pay [Mill-Bern] Commission for orders which have been accepted by IBM as of the date of expiration of this Agreement." Id. at § 11(a). Thus, under IBM's reasoning, Mill-Bern's attempt at termination for cause was ineffective because it did not provide IBM with 30 days notice to cure the breach. IBM argues the 1997 Agreement expired on January 7, 1998 and IBM's obligations to Mill-Bern were extinguished. Mill-Bern claims this provision was extremely unusual and grossly unfair. Plaintiff's Rule 56.1 Statement in Opposition at ¶¶ 29-32. Moreover, Mill-Bern claims the uniform practice in the industry was that the principal would pay the sales representative for orders accepted and shipped within a certain amount of time after the contract ended. Id. at ¶ 33. Despite these protestations, the Court notes Mill-Bern signed the 1996 and 1997 Agreements, with the benefit of counsel, knowing the contracts contained this expiration provision.
The Court is to interpret the 1997 Agreement "so as to give effect to the intention of the parties as expressed in the unequivocal language they have employed." Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir. 2000) (citing Breed v. Ins. Co. of N. Am., 385 N.E.2d 1280, 1282 (1978)). The Court may not rewrite the contract. Id. (citing Fiore v. Fiore, 389 N.E.2d 138, 139 (1979)). Further, "[c]onstruing an unambiguous contract provision is a function of the court, rather than a jury, and matters extrinsic to the agreement may not be considered when the intent of the parties can fairly be gleaned from the face of the instrument."Id. (citing Teitelbaum Holdings, Ltd. v. Gold, 396 N.E.2d 1029, 1032 (1979)). However, if an ambiguity in the contractual language persists even after the court has examined extrinsic evidence, the court may, as a last resort, construe the contract against the drafter in accordance with the rule of contra proferentem. Gilbert v. Related Mgmt. Co., No. 95 Civ. 9610 (JFK), 1998 WL 99801, at *4 (S.D.N.Y. Mar. 4, 1998).
The 1997 Agreement is unambiguous and provides clear alternatives. If the parties allowed it to expire, IBM's obligations to Mill-Bern, including the obligation to pay commissions "for orders which have been accepted by IBM as of the date of expiration," immediately cease. 1997 Agreement, Messing Aff. Ex. C. § 11(a). Alternatively, "[i]n the event of termination . . . IBM shall pay applicable Commissions on all orders accepted by IBM prior to the date of the termination notice and shipped within ninety (90) days of such notice." 1997 Agreement, Messing Aff. Ex. C §§ 11(d) (regarding situation in which Mill-Bern terminates for cause) and (f) (containing same provision and regarding the situation in which either party terminates without cause). Mill-Bern had to give IBM 30 days notice before it could terminate for breach. Id. § 11(c). Termination by either party without cause would also become effective on 30 days notice. Id. § 11(a). Thus, the contract demonstrates that the parties intended that termination without cause by either party or termination with cause by Mill-Bern would require IBM to pay applicable commissions on orders placed before the date of the termination notice. Similarly, the 1997 Agreement is clear, IBM's obligations would be extinguished in the event of expiration. Mill-Bern argues that IBM's conduct — in not responding to Mill-Bern's October 9, 1997 demand for split commissions until well within the 30 day window — prevented Mill-Bern from timely terminating the Agreement. Yet, Mill-Bern was free to terminate the contract at any time before the 30 day notice period. Accordingly, because the language of the contract is clear in its requirement of 30 days notice for termination, the Court finds that the 1997 Agreement, as well as IBM's obligations, expired on January 7, 1998.
Mill-Bern argues that § 11(a) is unconscionable. It claims it was coerced into signing the 1996 and 1997 Agreements after IBM forced it to cease its representation of competing manufacturers. Further, according to Mill-Bern, the provision immediately extinguishing rights when a contract expires is extremely unusual and "unreasonably favorable to" IBM. Sablosky v. Edward S. Gordon Co., Inc., 535 N.E.2d 643, 647 (1989). IBM argues Mill-Bern knowingly and willingly signed the Agreement and that it cannot claim that § 11(a) is unconscionable after reaping other rewards of the Agreement. IBM states that between the commencement of the 1996 Agreement and this litigation it paid Mill-Bern close to $3 million in commissions.
"The doctrine of unconscionability seeks to prevent sophisticated parties with 'grossly unequal bargaining power' from taking advantage of less sophisticated parties." U.S. v. Martinez, 151 F.3d 68, 74 (2d Cir. 1998) (internal citations omitted); see also Universal Leasing Servs., Inc. v. Flushing Hae Kwan Restaurant, 565 N.Y.S.2d 199, 200 (App.Div. 1991) (stating the purpose of the unconscionability doctrine is to prevent unfair surprise and oppression). "A contract or clause is unconscionable when there is an 'absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.'" Desiderio v. National Ass'n of Securities Dealers, Inc., 191 F.3d 198, 207 (2d Cir. 1999) (quoting 8 Samuel Williston, A Treatise on the Law of Contracts, § 18:9, at 54 (Richard A. Lord ed., 4th ed. 1998)). The Court notes that determining whether a contract clause is unconscionable is a question of law for the court.McNally Wellman Co. v. New York State Elec. Gas Corp., 63 F.3d 1188, 1198 (2d Cir. 1995).
A party urging a finding of unconscionability must demonstrate "the contract was both procedurally and substantively unconscionable when made." Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10 (1988). The Court must look at the contract formation process and the alleged lack of meaningful choice to determine whether the expiration provision is procedurally unenforceable. Id. at 10-11. The Court can consider the size and commercial setting of the transaction, whether deceptive or high-pressure tactics were employed, Mill-Bern's commercial experience, and any disparity in bargaining power. Id. at 11.
Here, Plaintiff insists that the expiration provision is procedurally unenforceable because, except for some details regarding the Digital account, it could not negotiate the terms of the 1996 and 1997 Agreements and Mill-Bern had no choice but to agree because IBM had forced it to terminate its relationships with other manufacturers. The Court is not convinced. Mill-Bern provides no evidence that it tried to negotiate the expiration term and failed, IBM did not camouflage the provision, Mill-Bern is an experienced commercial enterprise and had the benefit of counsel throughout the negotiation process, and, in fact, did negotiate at least one non-Digital related term. See Dec. 30, 1996 Mill-Bern Letter to IBM and January 17, 1997 Letter IBM Letter to Mill-Bern, Messing Aff. Exs. VW (demonstrating Mill-Bern did affect a change in Attachment A of the Agreement). Further, Mill-Bern signed two consecutive Agreements containing the clear expiration term. See Doctor's Associates, Inc. v. Distajo, 107 F.3d 126, 135 (2d Cir. 1997) (finding no unconscionability because disputed provision was "in plain terms" in the contract). Mill-Bern did not protest until it experienced its clear consequences. Accordingly, the Court finds no procedural unconscionability here.
As stated above, generally, a finding of unconscionability requires both procedural and substantive unconscionability. Gillman, 73 N.Y.2d at 10. Only in exceptional cases will courts deem a contract unenforceable solely on the ground of substantive unconscionability. Id. at 12. The substantive question "entails an analysis of the substance of the bargain to determine whether the terms were unreasonably favorable to the party against whom unconscionability is urged." Id. Plaintiff focuses on the uniqueness of the term in support of its contention that it is grossly unfair. See, e.g., Plaintiff's Memorandum in Opposition at 5-7. The Court finds that the alleged uniqueness of the term will not place it in the exceptional category of contracts that are unconscionable based on their substance alone. Accordingly, as Plaintiff has failed to convince the Court that the expiration term is procedurally and substantively unconscionable, Mill-Bern cannot succeed in its argument with respect to the 1997 Agreement. Summary judgment is granted to Defendant.
III. Conclusion
For the reasons explained above, Defendant IBM's motion for summary judgment is granted in its entirety. Plaintiff Mill-Bern's motion for partial summary judgment is denied.
So ordered.