IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIBCO SOFTWARE INC.,
Plaintiff,

C.A. No. N18C-07-066 CLS

Vv.

MEDIAMATH, INC.,

Defendant.

Date Submitted: November 18, 2019
Date Decided: January 6, 2020

Upon Plaintiff's Motion for Summary Judgment
Denied.

MEMORANDUM OPINION

Josiah R. Wolcott, Esquire, Connolly Gallagher LLP, Newark, Delaware, Attorney
for Plaintiff.

Matthew P. Ward, Esquire, Nicholas T. Verna, Esquire, Womble Bond Dickinson
LLP, Wilmington, Delaware, Usher Winslett, Esquire, Of Counsel (pro hac vice),
Winslett Studnicky McCormick & Bomser LLP, New York, New York, Attorneys

for Defendant.

SCOTT, J.
Before the Court is Plaintiff Tibco Software Inc.’s (“Plaintiff’) Motion for

Summary Judgment. For the following reasons, Plaintiff's motion is DENIED.
Background

In August 2014, Defendant Mediamath, Inc. (“Defendant”) and Intel Services
entered into a Master Service Agreement (“Agreement”), wherein Intel Services
agreed to provide certain information, technology, products, services, and support to
Defendant for an established fee. On the same date, Defendant and Intel Services
executed an Order Form for such services, which provides an end date of December
31, 2017.' In September 2015, Plaintiff acquired the assets of Mashery— including
the Agreement—from Intel Corporation.

Under the Agreement, Defendant was required to “pay all fees as specified on
the Order Form, but if not specified then within 30 days of receipt of an invoice.’
On January 9, 2018, Plaintiff sent an invoice to Defendant in the amount of
$321,187.46 (“Invoice”). Defendant did not pay the Invoice within 30 days of
Defendant’s receipt of the Invoice. At present, the Invoice remains unpaid.

Parties’ Assertions
Plaintiff filed a motion for summary judgment, arguing that there are no

genuine issues of material fact and that it is entitled to judgment as a matter of law.

 

'Pl.’s Am. Compl. Ex. A.
2 Pl.’s Am. Compl. Ex. A, § 3.
Plaintiff argues that the three elements of its breach of contract claim are proven by
undisputed facts. Additionally, Plaintiff requests this Court grant summary
Judgment on Defendant’s counterclaim because this Court previously held
unenforceable the liability limitation provision that Defendant relies on in its
counterclaim.

In its response, Defendant explains that this Court did not find the liability
limitation provision unenforceable; instead, this Court found the liability limitation
provision remained “an issue of material fact.” Based on the Court’s previous
finding, Defendant argues that there are genuine issues of material fact. Defendant
further argues that the Court still must decide whether to hold Plaintiff accountable
for its failure to invoice Defendant for over 30 months.

In its reply, Plaintiff urges the Court to grants its motion for summary
judgment because there are no genuine issues of material fact and Plaintiff is entitled
to judgment as a matter of law. Plaintiff argues that Defendant impermissibly used
parol evidence to show that the liability limitation provision was revised three times
during contract negotiations. Finally, Plaintiff argues that it breached no legal or
contractual obligation by failing to invoice Defendant every quarter.

Standard of Review
Under Superior Court Rule of Civil Procedure 56, summary judgment is

proper when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.7. Summary judgment will not be granted if
material facts are in dispute or if “it seems desirable to inquire more thoroughly into
the facts to clarify the application of the law to the circumstances.”* When
considering a motion for summary judgment, this Court considers all facts in a light
most favorable to the non-moving party.°
Discussion

On July 10, 2019, this Court denied Defendant’s Motion for Judgment on the
Pleadings and found “unreasonable” Defendant’s proffered interpretation of the
Agreement’s liability limitation provision based on the facts available to the Court
at that time.® The Court specifically concluded that:

Under the facts of this case, the proper interpretation of the

Agreement’s liability limitation provision remains an issue of material

fact.’
For the Court to grant a motion for summary judgment, there must be no genuine

issues of material fact.2 The Court has already explicitly found a genuine issue of

material fact in this case. Accordingly, summary judgment is improper.

 

3 Super. Ct. Civ. R. 56(c).
4 Infante v. Horizon Servs., Inc., 2019 WL 3992101, at *1 (Del. Super. Aug. 23,

2019); Triumph Mortg. Corp. v. Glasgow Citgo, Inc., 2018 WL 1935968, at *3
(Del. Super. Apr. 19, 2018).

> Infante, 2019 WL 3992101, at *1.

® Tibco Software Inc. v. Mediamath, Inc., 2019 WL 3034781 (Del. Super. July 10,
2019).

7 Id. at *3 (emphasis added).

8 Super. Ct. Civ. R. 56(c); Infante, 2019 WL 3992101, at *1.

4
Conclusion

For the forgoing reasons, Plaintiff's Motion for Summary Judgment is

DENIED.

IT IS SO ORDERED.

ck SHS

The Honorabfe Calvin L. Scott, Jr.
