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Emirat AG v. High Point Printing LLC
Citation: 248 F. Supp. 3d 911Docket: Case No. 12-C-0789
Court: District Court, E.D. Wisconsin; March 29, 2017; Federal District Court
Emirat AG, a German corporation focused on risk management and promotional activities, filed a lawsuit against WS Packaging Group, Inc. and High Point Printing LLC concerning alleged defects in the printing of combination game and telephone-use scratch-off cards. In the case, both parties submitted cross-motions for summary judgment, which is appropriate when there is no genuine dispute of material fact. The court emphasized the burden on the moving party to demonstrate entitlement to summary judgment and the necessity for the nonmoving party to present specific evidence to show a genuine issue for trial. The presence of a mere factual dispute is insufficient unless it pertains to a material fact that could alter the outcome under applicable law. Emirat's contract with Sabafon, a Yemeni telecommunications company, involved the printing of 25 million scratch-off phone cards designed to provide prepaid activation codes (PINs) for phones. Each card featured an opaque scratch-off coating over a promotional game, consisting of boxes that revealed prizes based on specific scratching rules. High Point Printing LLC, an Ohio-based company, has dissolved and has not participated in the proceedings, while WS Packaging, a Wisconsin corporation, manufactures various printed products, including the cards in question. On June 7, 2007, Emirat provided a quote to Sabafon for 25 million "high level EMI-RAT Security Cards," a marketing term without detailed security specifications. Sabafon accepted the quote, which outlined winning percentages for various prizes and included ten guaranteed grand prize winners. Emirat, not a printing company and with limited prior experience in card printing, agreed to arrange the printing and assumed responsibility for the prizes, including obtaining insurance. Emirat later contacted High Point regarding the printing, and on March 28, 2008, representatives from Emirat and High Point visited WS Packaging’s facility to assess its printing capabilities. Following assurances from WS Packaging about their ability to securely print the cards, Emirat accepted a quote from High Point on May 9, 2008, for the printing of the cards, which did not mention WS Packaging or card security specifications. A visit by Emirat and High Point representatives to WS Packaging occurred on May 20, 2008, to make graphic revisions. On May 23, 2008, High Point and WS Packaging entered into a Letter of Indemnification, stating that WS Packaging would only be responsible for printing accuracy and did not guarantee against tampering or counterfeiting. This agreement was essential for WS Packaging to price and execute the work requested by High Point. On June 6, 2008, Emirat’s Martin and High Point’s Szygenda visited WS Packaging’s Neenah plant to review revisions to graphics from an original proof. Following this visit, High Point subcontracted WS Packaging to print 25 million scratch-n-reveal cards, with a quotation provided on September 16, 2008, and a purchase order submitted on September 23, 2008, for delivery to Yemen. The cards were to be folded and individually sealed. On the same day, Martin approved proofs with minor changes. A subsequent visit on September 26, 2008, involved Martin and Szygenda observing the printing process, with Martin acting as the decision-maker for approvals. WS Packaging acknowledged that Emirat, as High Point’s customer, was responsible for project direction. During the visit, Martin signed agreements releasing WS Packaging from liability related to spoilage and product overages. Definitions of "candling" were provided by various WS Packaging employees, describing it as the ability to see game data through the scratch-off layer using light. WS Packaging completed an initial run of 12.5 million cards, delivered in October 2008. Post-delivery, Emirat reported complaints from Sabafon regarding the visibility of pin numbers through candling. WS Packaging requested the return of the initial batch due to this issue and agreed to reprint the cards at no charge, while Emirat communicated several configuration changes for the reprint. On February 11, 2009, WS Packaging issued a quote to High Point for reprinting cards with requested changes. On April 30, 2009, they entered into a Letter of Indemnification, covering game orders from April 2009 to May 2010, nearly identical to a previous agreement from May 2008. On May 21, 2009, WS Packaging’s Kevin Fitzgerald emphasized in an email that the game cards must not be visible under strong light. A new purchase order for 25 million scratch-n-reveal cards was placed by High Point on May 27, 2009, totaling over $700,000, reflecting changes requested by Emirat. Samples of the new cards were printed and sent to Emirat, which forwarded them to customer Sabafon for inspection. Emirat requested that WS Packaging send sample cards to Force Technology in Denmark for independent testing, selecting the testing methods, although neither contract mandated such testing. WS Packaging sought Emirat’s authorization to send 25 live game pieces for evaluation. Force Technology, initially unfamiliar with "candling," conducted several tests on the samples, concluding on June 2, 2009, that the symbols underneath the scratch layer could not be disclosed using the tested techniques. This conclusion was communicated to WS Packaging on June 3, 2009, alongside Emirat's approval of the card layout and the receipt of Force Technology's confirmation. On June 4, 2009, Force Technology issued a report affirming the security of the scratch card game, with further testing conducted on June 11 and reported on June 25, confirming that the symbols remained secure. After Emirat approved the proofs, WS Packaging began production for the second run of cards, with internal instructions dated July 24, 2009, reinforcing the no-candling requirement and noting the prior third-party testing in Denmark. WS Packaging implemented a testing protocol for game cards that required checking two cards for candling every half hour during production, using a high-intensity light. For the Emirat job, specifications mandated "zero" candling, meaning no visibility of printed elements behind the scratch-off layer. WS Packaging utilized Scorpion flashlights to conduct candling tests, which involved examining game cards on the production line and in a quality lab. Approximately 10 million cards were printed and shipped by the end of July 2009. Emirat's representative, Sarah Spannagel, observed the testing process and noted that WS Packaging personnel slightly bent the cards over a flashlight, although she could not confirm specific actions or the definition of "bend." In contrast, WS Packaging employee Greg Braun stated that their standard practice for testing scratch-off cards does not involve bending the cards. Documentation of testing protocols for candling is standard for WS Packaging, and they maintain that no candling should be visible under high-intensity light according to agreed procedures. Throughout 2009, Emirat became more directly involved with WS Packaging, while High Point's involvement diminished. Communications between WS Packaging and Emirat included discussions on printing specifications and payment arrangements, with confirmations regarding prize spreading and payment timelines exchanged via email. WS Packaging confirmed that by the first re-run, it was in communication with Emirat and High Point, with Martin from Emirat designated as the decision-maker at Szygenda's request. High Point ceased operations in late 2009. After a shipment of cards in July 2009, Sabafon reported issues with the cards' numerical order and quantity, and some cards were missing from a serial number database provided by WS Packaging. Martin of Emirat expressed these concerns in an email to WS Packaging on July 26, 2009. Subsequently, WS Packaging, High Point, and Emirat negotiated a Settlement Agreement executed on October 23, 2009, to resolve disputes related to the card sequencing without admitting liability. Under this agreement, WS Packaging agreed to issue a credit towards invoices for future shipments of scratch-off cards. Simultaneously, an Escrow Agreement was executed with JP Morgan Chase as the escrow agent to secure funds for WS Packaging. Representatives from Emirat inspected the next shipment of approximately 7.6 million cards at WS Packaging’s facility on the same day, which were then sent to Dubai. The 2009 cards had an expiration date of December 31, 2010. Force Technology tested the cards and reported that their security was intact. Upon arrival in Dubai in November 2009, Emirat representatives observed a Sabafon representative successfully scratch off matching symbols on the cards. However, during their own tests, they discovered the ability to see phone-card PINs when using a flashlight and noted that bending the cards caused cracks in the scratch layer, although these were not visible to the naked eye. On November 17, 2009, Emirat informed Force Technology of concerns regarding the security of the cards and requested further testing of additional samples. Emirat’s Spannagel created a video demonstrating a new testing method for game cards and shared it with Force Technology. The video illustrated bending a game card around a flashlight. On November 18, 2009, Emirat’s Martin communicated to WS Packaging that the second batch of cards failed security checks. WS Packaging’s Mark Kraftzenk examined retained cards and identified some PIN numbers without removing the scratch-off material, but was unable to reveal any game symbols. On November 24, 2009, Spannagel requested an official report from Force Technology indicating that the cards were not secure, as the client had rejected them. Force Technology conducted additional testing, including the new "torch light" test, which they had not previously used. This test involved bending the scratch card around a pencil and using focused light in a dark environment to see if PINs could be read through the scratch layer. On December 3, 2009, Force Technology issued a report confirming that fifteen sample cards passed all previous tests (daylight, fluorescent, UV light, thermal imaging, x-ray, and laser light) without revealing PINs or prize symbols. However, the report noted that the torch-light test did allow for the disclosure of figures without damaging the scratch layer. The test revealed that bending the cards resulted in cracking the scratch layer, making some numbers visible when illuminated from behind. Furthermore, it was observed that the quality of the scratch layer varied among cards, with certain series being easier to see through due to existing pinholes in the scratch layer. Documentation of the visibility of numbers on scratch-off cards is inadequate; the human eye outperforms photography in revealing these numbers. Force Technology assessed the security of the "Match Win" scratch card game as inadequate. Emirat paid over $700,000 to High Point for the printing of these cards, but did not make any direct payments to WS Packaging, which received a smaller amount from High Point. Emirat has not received any refunds from High Point related to the game-card project. WS Packaging's expert, Jim Carides, noted that scratch-off materials typically have a shelf life of one year or less, and although he identified fragments of numbers on cards first seen in 2014, he deemed the card's security unbreached, despite the time-consuming process needed to detect a single digit. Emirat’s expert, James Blanco, successfully identified all numbers of a PIN using a bending technique with a torch light, which he refined over 13 to 14 hours. Another expert, Larry Stewart, similarly found that bending the cards with intense light was necessary for effective testing, concluding that the cards could be compromised with a common light source. Despite their findings, both experts agreed the cards did not constitute a security risk per World Lottery Association standards, which define a security risk as a card that can be compromised in under five minutes. This case is under federal jurisdiction due to diversity, with both parties agreeing that Wisconsin law applies. The court recognizes genuine disputes regarding the security standards for the cards and whether they were defective, noting the absence of defined security requirements in the relevant contracts. "Secure" is not clearly defined, raising questions about the standards for security in relation to the contracts between Emirat and WS Packaging. Emirat claims WS Packaging acknowledged a standard of "zero" candling, but internal quality expectations do not clarify security requirements. Ambiguities exist regarding what constitutes a secure card, including whether candling is assessed when cards are flat or manipulated. Testing performed by WS Packaging and Force Technology showed cards passed initial tests, but later manipulations allowed for candling, calling into question the security of the cards. Expert opinions suggest the cards meet World Lottery Association standards, but the testing conducted by Emirat's experts does not definitively establish that the delivered cards could be compromised under any standard. Due to these disputes, a jury may need to determine the security of the cards, leading to the denial of Emirat’s motion for summary judgment. Regarding breach of contract claims, Emirat alleges WS Packaging violated their Settlement Agreement by supplying defective cards. This Settlement Agreement, governed by Wisconsin law, requires the court to interpret the contract in line with the parties' intentions expressed in the contract language. The court aims to apply clear and unambiguous terms literally, interpreting them in their plain meaning while avoiding absurd outcomes and ensuring every word has significance. An integration clause in the Settlement Agreement confirms that the document represents the complete and final understanding between the parties. WS Packaging (WSPG) has agreed to sell, and High Point has agreed to purchase, 25 million scratch-n-reveal cards, which High Point will sell to Emirat. The Settlement Agreement acknowledges a dispute that arose between the parties, prompting them to settle to avoid litigation. It limits the agreement's scope to the specific dispute and additional matters defined in Sections 5 and 6. The "Disputed Items" include: 1. Unscanned cards that are in trays but not in the serial number database. 2. Cards that are not in sequential order in the trays. 3. Incorrect quantities of cards in trays. 4. Mismatches between the serial number database and the physical cards. 5. Missing serial numbers. Section 5 outlines the responsibilities regarding card numbering, stating that WSPG must not ship duplicate serial numbers. For the third shipment, WSPG will ship once it runs out of serial numbers. For the fourth shipment, Emirat must either provide missing serial numbers or additional serial numbers; failure to provide complete information will allow for a permitted shortfall. Emirat is responsible for ensuring no duplicates in the provided database and agrees to indemnify WSPG and High Point against claims from the Saba-Fon Entities arising from any shortfall. Section 6 establishes a revised shipping and payment schedule, indicating that the first shipment is with Emirat, the second is ready for shipment, and the third will ship within 21 days after Emirat deposits $284,370 into escrow, as per the accompanying Escrow Agreement. The fourth shipment of Cards will be ready for shipment from WSPG's facility 21 days after Emirat provides the missing or additional serial numbers and deposits $274,016 into the specified escrow account. The third and fourth shipments will only be released to Emirat after inspection and approval, confirming compliance with the specifications used for the first shipment. Any shortfall in shipments will adjust the amount due to WSPG accordingly. Emirat's payments into the escrow account will constitute full payment for the Cards, unless there are changes in quantity or specifications. The Settlement Agreement contains an integration clause, establishing it as the complete agreement, superseding any prior negotiations or agreements. Emirat asserts that WSPG agreed to print 15 million additional Cards per a specific schedule and according to earlier specifications, but admits the disputed items do not form the basis of its claims. Instead, Emirat focuses on Sections 5 and 6, which it interprets as WSPG's promise to print and deliver the additional Cards correctly, while WSPG contends that the Settlement Agreement only addresses the Disputed Items and does not extend beyond those terms. The Agreement acknowledges prior contracts for the sale and purchase of scratch-off game cards, indicating that the first two shipments were produced under those contracts. The Court concludes that the Settlement Agreement modifies only relevant parts of the prior contracts concerning the Disputed Items, leaving the rest intact, and finds that Section 5 does not support Emirat's current case. WS Packaging is prohibited from shipping cards with duplicate serial numbers as outlined in section 5. This section details the allocation of serial numbers for shipments three and four, with Emirat responsible for providing serial numbers or allowing a shortfall for shipment four. Section 5 does not modify previous contracts regarding card production, aside from serial number usage and shipping timelines. Section 6 addresses shipment timing and payments, explicitly stating that shipments three and four will not be released until Emirat approves them based on compliance with previously established product specifications. While the product specifications related to card production are acknowledged as part of earlier contracts, section 6 does not incorporate or amend these specifications, lacking details on size, stock, ink color, and security features. The focus of section 6 is on Emirat's responsibilities rather than imposing new obligations on WS Packaging. Emirat's interpretation of section 6 as establishing a new contract contradicts the Settlement Agreement's limitation of scope, which pertains only to disputed items and additional matters. Consequently, the Settlement Agreement does not provide a contractual basis for Emirat's claims regarding card quality or condition, as WS Packaging made no commitments concerning product specifications or quality therein. Therefore, summary judgment should favor WS Packaging concerning the Settlement Agreement. In an alternative argument, Emirat claims that if the Settlement Agreement lacks provisions for card production, a unilateral contract or implied contract in fact exists. Citing the Wisconsin Supreme Court's definition of a unilateral contract, Emirat suggests that such a contract arises when only one party makes a promise, as illustrated in the case of Paulson v. Olson Implement Co. In Paulson, the court recognized a unilateral contract when a manufacturer's agent promised buyers that a grain drying bin would dry 5,000 bushels of corn within twenty-four hours, leading the buyers to believe they were dealing directly with the agent. The court determined that the contract became binding upon the buyers’ signing of a sales contract for the manufacturer’s bin, establishing privity for a breach of warranty claim. In contrast, Emirat claims that during a visit to WS Packaging, promises were made regarding the security of cards printed by WS Packaging compared to those produced by another company. Emirat argues these promises constituted unilateral commitments, with the consideration being a separate contract with High Point for printing. However, the case diverges from Paulson as the promises made by WS Packaging were vague and not specific guarantees, and there was no contractual reference to WS Packaging in the agreement between Emirat and High Point. High Point's decision to contract with WS Packaging occurred five months later, undermining any assertion that the High Point/Emirat contract provided consideration for WS Packaging’s alleged promise. Furthermore, Emirat’s continued work after an unsatisfactory shipment does not imply a unilateral contract based on a general assurance of security. Absent a written agreement, an implied contract may arise from conduct, requiring mutual intent and understanding, but no such mutual intention was evident here. Knowledge of a subcontractor's existence or mere contact between a subcontractor and owner does not create an implied contract. In this case, Emirat and WS Packaging's actions demonstrate a lack of mutual intent to contract. Emirat, a sophisticated international company, entered into a direct contract with High Point in May 2008, not with WS Packaging. During deposition, Emirat's representative confirmed that at their initial meeting, they had no contractual relationship with WS Packaging and were unaware of any terms or payments between High Point and WS Packaging. Furthermore, documents like the Letters of Indemnification and the September 2008 purchase order do not mention Emirat. Emirat's claim that a new contract formed between it and WS Packaging as High Point began to withdraw is unsupported by evidence, as High Point remained involved until late 2009. The Settlement Agreement explicitly outlines the intentions of WS Packaging and Emirat when they chose to contract. Consequently, there is no basis for a reasonable jury to determine that a contract existed between WS Packaging and Emirat in 2009. Regarding the third-party beneficiary claim, Emirat concedes it is not a party to the WS Packaging-High Point contract and lacks direct privity, except through the Settlement Agreement. To qualify as a third-party beneficiary, the contract must have been intended to benefit Emirat directly. The law requires that the contracting parties must have intended to grant enforceable rights to the third party, and mere incidental benefits are insufficient. Courts have been hesitant to recognize third-party rights based solely on the awareness of a third party's involvement in the transaction. Courts typically rule that a third party is not a beneficiary of a sales agreement solely because the contracting parties are aware that the product will be resold to that third party or a related class. Even if the third party is explicitly named in the contract, they are regarded as a "known remote buyer" unless there is additional evidence demonstrating an intent to confer a benefit. WS Packaging argues that evidence of intent to benefit a third party must be evident in the contract itself, which they claim is absent in their agreement with High Point concerning Emirat. The court, however, disagrees, citing the Supreme Court of Wisconsin’s ruling in Hoida, which allows for the assertion of third-party status based on the attachment of a contract or sufficient facts demonstrating a direct benefit. Similarly, in Becker, the Wisconsin Court of Appeals recognized a plaintiff as a third-party beneficiary of an oral contract despite ambiguities in the contract's express terms, emphasizing the use of the totality of circumstances to assess intent. In contracts involving the sale of goods, which may comprise multiple documents and parties' conduct, it is reasonable to consider the intent derived from behavior rather than strict written terms. Evidence of prior negotiations is inadmissible in fully integrated agreements but may be permitted in partially integrated or non-integrated agreements. The court raises the question of whether Emirat qualifies as a third-party beneficiary of the May 2009 purchase order, noting Emirat's involvement in the ordering process and its specified responsibilities, despite the absence of explicit documentation. Furthermore, in Linden v. Cascade Stone Co., the Supreme Court of Wisconsin left unresolved the issue of whether an owner can sue a subcontractor in the event of a general contractor's insolvency. Emirat may not qualify as an intended beneficiary under the Restatement (Second) of Contracts § 302 because WS Packaging’s obligations under the production contract do not involve a payment obligation to Emirat or a gift to Emirat. Illustrations from the Restatement indicate that if the promisee acts merely as an intermediary, the third party is typically an incidental beneficiary. For example, if A contracts with C to build a structure and B contracts with A to supply materials, C is an incidental beneficiary of B's promise. Corbin on Contracts suggests that Emirat is unlikely to be deemed a third-party beneficiary, as case law generally supports the view that owners are not intended beneficiaries of contracts between general contractors and subcontractors. The Seventh Circuit in Corrugated Paper Products, Inc. echoed this perspective. However, the court does not need to determine Emirat’s status as a third-party beneficiary, as its rights would be limited to the contract terms. A third-party beneficiary's rights are confined to the contract that grants them those rights and are subject to any defenses the promisor can assert against the promisee. Here, Emirat's rights are constrained by the terms of the contract, which indicate that Emirat did not initiate legal action within the contractual statute of limitations. The contract between WS Packaging and High Point includes the Letters of Indemnification, quotes, and purchase orders, with High Point’s representative signing the Letters, which confirm WSPG's role and stipulate the parties' rights and obligations. The Letters specify that the provision of products is conditioned upon adherence to these terms, overriding any conflicting terms in purchase orders or other communications. Buyer’s acceptance of terms and conditions is mandatory, as indicated in the document. A critical provision emphasizes that any buyer-initiated action must commence within one year of product delivery or service completion, overriding any statutory limitation period. The first shipment of replacement game cards was received by Emirat in summer 2009, prior to the Settlement Agreement on October 28, 2009, while the second shipment was received in November 2009. Consequently, any claims regarding these shipments needed to be filed by November 2010. Emirat filed its case on August 2, 2012, which was beyond the stipulated timeframe. Emirat contends that the statute of limitations has not expired, arguing that since certain shipments (third and fourth) remain undelivered, the timeline should be extended. However, the limitations provision does not specify which event takes precedence—delivery or completion of services. Therefore, claims regarding already delivered products must be filed within one year of each delivery. Regarding unshipped cards, Emirat failed to make necessary deposits into an escrow account and did not approve the shipments, which were contingent on these actions. The Escrow Agreement stipulated termination upon either the distribution of funds or December 31, 2010, if no deposit was made. Since Emirat did not deposit the funds by the deadline, WS Packaging’s obligations were deemed complete by that date, requiring Emirat to file claims for the third and fourth shipments by the end of 2011. Additionally, the Letters of Indemnification clarify that WS Packaging assumes responsibility only for the accuracy of the printing and seeding of the game, disavowing responsibility for game administration activities, including legality and tampering issues. Buyers are advised to test product samples under actual use conditions prior to ordering. WSPG will provide samples for testing, but the responsibility for determining product suitability lies entirely with the Buyer, who accepts all associated risks and liabilities. The Seller offers a limited warranty, asserting that products will meet agreed specifications and be free from material defects for six months post-delivery. The warranty excludes coverage for damages resulting from transit issues, negligence, misuse, alterations, and failure to follow instructions. Seller must ensure the correct production and seeding of game pieces, particularly when the Buyer is not present. The warranty supersedes all other warranties, both express and implied, and limits Seller's liability to direct damages, capped at $1,000,000. For defective products, the Seller’s obligation is to repair, replace, or credit the Buyer for the defective items upon timely notice. Seller disclaims liability for incidental or consequential damages, with total recovery for any breach of warranty also limited to $1,000,000. The warranty is exclusive, excluding all implied warranties of merchantability and fitness for a particular purpose, and any product descriptions do not constitute warranties. WS Packaging disclaimed all implied warranties of merchantability and fitness for a particular purpose, as well as liability for incidental or consequential damages, while providing limited warranties regarding the production of game cards. These warranties included adherence to High Point's specifications, assurance of no material defects for six months, correct production numbers, and compliance with established procedures. In the event of defects, remedies were limited to replacement or reimbursement, which also applied if Emirat were a third-party beneficiary, subject to the statute of limitations mentioned in the Letters of Indemnification. Emirat's claim of unjust enrichment fails because it lacked a direct contract with WS Packaging; it only had a contract with High Point. Wisconsin case law indicates that the existence of a contract between High Point and WS Packaging negates Emirat's unjust enrichment claim. For an unjust enrichment claim to succeed, four elements must be established: a benefit conferred on the defendant by the plaintiff, the defendant's appreciation of that benefit, acceptance or retention of the benefit by the defendant, and circumstances rendering it inequitable for the defendant to retain the benefit without payment. Emirat conferred no benefit directly to WS Packaging, as payments for production originated from High Point, not Emirat. Regarding promissory estoppel under Wisconsin law, a claimant must demonstrate that a promise was made by the defendant that was expected to induce action by the plaintiff, that such action occurred, and that injustice would occur if the promise were not enforced. The document outlines the legal principles surrounding promissory estoppel and its applicability in contract disputes. Promissory estoppel applies when a promise lacks consideration and would otherwise be unenforceable, but it is not applicable if an express contract governs the relationship. In this case, Emirat lacks a direct contract with WS Packaging, as two other contracts govern the involved parties, indicating no gap for promissory estoppel to address. A promise must be a clear manifestation of intent and not merely a prediction or opinion; vague statements about the ability to perform better than another vendor do not constitute actionable promises. Additionally, the court notes that Emirat's claims regarding the number of cards and security are insufficiently specific to qualify as promises. Even if they were considered promises, the court finds no injustice in denying promissory estoppel since Emirat had a contractual claim against High Point, which it could have pursued earlier. Regarding the negligence claim, the economic loss doctrine prevents recovery for purely economic damages arising from a product's inadequate performance, as these damages should be addressed under contract law rather than tort law. This doctrine maintains the separation between contract and tort, applicable when damages are limited to the product itself without personal injury or damage to other property. The relationship between the ultimate purchaser and subcontractor is governed by the contract between the purchaser and the general contractor. Allowing Emirat to pursue a tort claim against WS Packaging would enable Emirat to bypass the warranties and remedies established in the contract with High Point, thus violating the economic loss doctrine and blurring the lines between contract and tort law. Emirat, which contracted with High Point for game cards, is suing WS Packaging solely for economic losses. As a result, Emirat's claim must be dismissed. The court ordered the denial of Emirat's motion for partial summary judgment and granted WS Packaging's motion for summary judgment. Additionally, Emirat's potential damages are uncertain and include non-fixed amounts like lost profits, which would require jury determination, making prejudgment interest inappropriate.