MEMORANDUM AND ORDER
WEXLER, District Judge.
Plaintiff D.S. America (East), Inc. ("Screen East") brings this diversity action against defendant Chromagrafx Imaging Systems, Inc. ("Chromagrafx") alleging claims for breach of contract. In response to the complaint Chromagrafx asserts eight affirmative defenses and three counterclaims — breach of contract, fraud and antitrust violations. Presently before the Court is Screen East's motion to dismiss Chromagrafx's amended counterclaims pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and to strike the affirmative defenses pursuant to Rule 12(f) thereof.
Screen East alleges in the complaint that it entered into an agreement on or about October 23, 1992 with Chromagrafx, pursuant to
Chromagrafx asserts counterclaims for breach of contract, fraud, and violation of § 2(e) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(e). As for its breach of contract counterclaim, Chromagrafx alleges that it entered into an agreement in September 1991, and issued a purchase order, to purchase the Scanner from a corporation previously doing business as "Screen USA," a predecessor of Screen East or a corporation of which Screen East is a part, see Amended Counterclaim ¶ 26, for delivery no later than October 30, 1991. Id. ¶ 28; see id. ¶ 58.
By April 1992, Screen USA still had not delivered the Scanner to Chromagrafx. Sometime that month, according to Chromagrafx. Screen USA was restructured, with the result that Screen East is "either a part of or a successor in part to" Screen USA. Id. ¶ 26. In May 1992, Screen East "specifically assumed the obligation to fulfill the terms of Chromagrafx [sic] initial purchase order with Screen USA and promised to deliver the Scanner at Chromagrafx's `earliest convenience.'" Id. ¶ 43. In the summer of 1992, Screen East advised Chromagrafx that it would not provide the Scanner unless Chromagrafx became an "authorized reseller" (the "Authorized Dealer Agreement"). Id. ¶ 44. To become an authorized reseller, also referred to as a "value added reseller," Chromagrafx had to "purchase a [S]canner: train sales people; develop a marketing plan to both parties' approval, and market the [Scanner]." Id. ¶ 45. In return, Screen East agreed to "provide Chromagrafx with sales and marketing support; assist in closing
In the first counterclaim, Chromagrafx alleges breaches by Screen East based on delay in delivery of the Scanner; defects in the Scanner; and refusal to install appropriate upgrades on the Scanner. Id. ¶¶ 50-52. The Scanner is allegedly defective in that it "drops off line in the computer system sporadically." Id. ¶ 51. Chromagrafx also alleges breach of the Authorized Dealer Agreement in that, prior to delivery of the Scanner, Screen East failed to provide access to technical issues; while after delivery, Screen East failed to provide adequate technical assistance, never met to plan sales strategies, and never provided sales and marketing support, sales leads or sales assistance, as it "did to other resellers located in the area." Id. ¶ 49. As a result of the delay in delivery and the Scanners' defects, Chromagrafx "lost the market for the program and suffered great damage." Id. ¶ 53. As a result of the breach of the Authorized Dealer Agreement, Chromagrafx "lost the ability to make sales of the [S]canner." Id. ¶ 54.
In its fraud counterclaim, Chromagrafx further alleges that in or about September 1991 Daly "falsely and fraudulently represented to Chromagrafx that the Scanner would be delivered prior to October 30, 1991," resulting in Chromagrafx issuing the purchase order to Screen USA for the Scanner. Id. ¶ 58. At the same time, Daly also allegedly falsely represented to Chromagrafx that "Screen"
In its antitrust counterclaim, Chromagrafx alleges that "Screen"
Id. ¶ 74. As a result of "Screen's discrimination in furnishing to Chromagrafx the delivery of the [S]canner, Chromagrafx was injured in its business and property...." Id. ¶ 75. In addition, Chromagrafx alleges that "Screen East also improperly discriminated in the furnishing of services to Chromagrafx in that it complied with its agreements with competitor resellers of the Scanner and not to Chromagrafx, which impeded Chromagrafx's ability to compete in the interstate resale market for the Scanner." Id. ¶ 76.
Chromagrafx asserts the following eight affirmative defenses: (1) Screen East and Screen USA breached "its" contract with Chromagrafx; (2) the Scanner is defective and Screen East has not repaired it or installed appropriate upgrades; (3) Screen East breached its warranty of merchantability and its warranty of fitness for a particular purpose; (4) Screen East and Screen USA breached "their" duty of good faith and fair dealing; (5) Screen East and Screen USA have caused damages to Chromagrafx which far exceed the purchase price of the Scanner; (6) the cost of the trip by Chromagrafx's employee, Brian Hobbs, was supposed to be deducted from the purchase price of the Scanner; (7) Screen East is barred from bringing this action under the doctrines of estoppel and unclean hands; and (8) Screen East and Screen USA breached "its" Authorized Dealer Agreement with Chromagrafx.
Screen East moves to dismiss all of Chromagrafx's counterclaims for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6); to dismiss the fraud counterclaim for failure to plead fraud with particularity pursuant to Fed.R.Civ.P. 9(b); and to strike all of the affirmative defenses pursuant to Fed.R.Civ.P. 12(f).
A. Motion to Dismiss
It is well settled that a complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Maggette v. Dalsheim, 709 F.2d 800, 803 (2d Cir.1983). Moreover, on a motion to dismiss, all factual allegations of the complaint must be accepted as true and construed favorably to the plaintiff. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam); Stewart v. Jackson & Nash, 976 F.2d 86, 87 (2d Cir.1992). These principles apply equally to a defendant's pleading asserting counterclaims.
In opposition to Screen East's motion, Chromagrafx submits matter outside the pleading, namely an affidavit by Wyman attaching various correspondence between Chromagrafx and Screen East or Screen USA. Although, on a motion to dismiss, a district court has discretion to consider matter outside the pleading submitted by the parties if it converts the motion to dismiss into one for summary judgment, see Fed. R.Civ.P. 12(b), the Court will not consider the Wyman affidavit.
1. Breach of Contract Counterclaim
Screen East contends (1) that Chromagrafx fails to allege a sufficient basis for imposing liability on Screen East — the only named defendant in the Amended Counterclaim — for Screen USA's breach of the alleged agreement between Chromagrafx and Screen USA; (2) that, in any event, the Equipment Purchase Agreement acts as a novation of the alleged agreement between Chromagrafx and Screen USA, thereby precluding any claim against Screen East for Screen USA's alleged breach; and (3) that
In opposition to Screen East's motion to dismiss, Chromagrafx argues that Screen East misconstrues the breach of contract counterclaim. According to Chromagrafx, Screen East assumes that it cannot be liable to Chromagrafx because (1) it delivered the Scanner to Chromagrafx immediately after the parties executed the Equipment Purchase Agreement, and (2) there is no basis upon which to hold it liable for Screen USA's alleged delay in delivery. In this regard, Chromagrafx maintains that the Amended Counterclaim alleges distinct breaches of contract against Screen East for Screen East's — not Screen USA's — delay in delivery, Screen East's delivery of defective goods, and Screen East's failure to install appropriate upgrades. Regarding the alleged delay in delivery, Chromagrafx argues that the Amended Counterclaim sufficiently alleges that Screen East "undertook to deliver [the Scanner] to Chromagrafx much earlier than the actual delivery date." Defendant-Counterclaimant's Memorandum of Law, at 2. In this respect, the Amended Counterclaim alleges that in May 1992 Screen East "assumed the obligation to fulfill the terms of Chromagrafx [sic] initial purchase order with Screen USA and promised to deliver the Scanner at Chromagrafx's `earliest convenience.'" Amended Counterclaim ¶ 43. Nevertheless, Screen East did not actually deliver the Scanner until the end of October 1992, after refusing in the summer of 1992 to provide the Scanner unless Chromagrafx became an authorized reseller. Id. ¶¶ 44, 47. Regarding the alleged defect, Chromagrafx alleges that the Scanner is defective in that it "drops off line in the computer system sporadically." Id. ¶¶ 50-51. Regarding the upgrades, the complaint alleges, without further explanation, that Screen East "failed to install appropriate upgrades." Id. ¶ 52.
Construed in a light most favorable to Chromagrafx, the Amended Counterclaim adequately states a claim against Screen East for breach based on delay in delivery and defect in the Scanner. However, the conclusory allegation that Screen East "failed to install appropriate upgrades," id. ¶ 52, does not sufficiently allege a breach on this basis, particularly since there are no allegations as to the existence, nature or extent of any obligation by Screen East to "install upgrades" or whether that promise was oral or written. Chromagrafx is granted permission to amend its counterclaim with respect to the allegation in paragraph 52 within 30 days from the date of this order.
To the extent Chromagrafx attempts to hold Screen East liable for any breach by Screen USA, particularly for delay in delivery, this Court agrees with Screen East's contention that paragraphs 26 and 43 of the Amended Counterclaim are not a sufficient basis for holding Screen East liable for Screen USA's delay. Chromagrafx's claim that Screen East "specifically assumed the obligation to fulfill the terms of Chromagrafx initial purchase order with Screen USA," Amended Counterclaim ¶ 43, does not support a finding that Screen East assumed Screen USA's liability to Chromagrafx under the purchase order. Similarly, Chromagrafx's conclusory allegation that Screen East is "either a part of or a successor in part to" Screen USA as a result of a restructuring does not, of itself, provide a sufficient basis for finding Screen East liable for Screen USA's alleged breach. See, e.g., See-transport Wiking Trader Schiffarhtsgesellschaft MBH & Co. v. Navimpex Centrala Navala, 989 F.2d 572, 580 (2d Cir.1993); Lumbard v. Maglia, Inc., 621 F.Supp. 1529, 1534-35 (S.D.N.Y.1985); see generally William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations ¶ 7122, at 231 (Stephen M. Flanagan et al. eds., perm. ed. 1990). Because it appears conceivable, at least at this stage of the action, that there may be a basis for Chromagrafx to hold Screen East liable for Screen USA's alleged breach, Chromagrafx is granted the right to amend its counterclaim within 30 days of this order to allege such a basis.
As for Screen East's defense that the parties agreed to a limitation on damages resulting from delay in delivery, a disclaimer clause, in small print on the back of the Equipment Purchase Agreement, provides in relevant part:
Chromagrafx argues that this clause is unenforceable because it was not "conspicuous," without citing authority, and because of "Screen's" purported "bad faith." Defendant-Counterclaimant's Memorandum of Law, at 2, 13.
Under New York Uniform Commercial Code, parties to a contract may agree to exclude or limit consequential damages upon breach provided such limitation is not "unconscionable." See N.Y.U.C.C. § 2-719(3). Although, as Screen East contends, § 2-719(3) does not require that the clause be "conspicuous," in determining unconscionability a court considers many factors, one of which is "whether terms were hidden in fine print." See, e.g., American Tel. & Tel. Co. v. New York City Human Resources Admin., 833 F.Supp. 962, 988-89 (S.D.N.Y. 1993); American Dredging Co. v. Plaza Petroleum Inc., 799 F.Supp. 1335, 1339 (E.D.N.Y.1992); Fleischmann Distilling Corp. v. Distillers Co., 395 F.Supp. 221, 232 (S.D.N.Y.1975). The factors considered in determining "procedural unconscionability" include, inter alia, "`the size and commercial setting of the transaction, whether deceptive or high-pressured tactics were employed, the use of fine print in the contract, the experience and education of the party claiming unconscionability, and whether there was a disparity in bargaining power.'" American Tel., 833 F.Supp. at 988 (quoting Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 537 N.Y.S.2d 787, 791, 534 N.E.2d 824, 828 (1988)); Fleischmann, 395 F.Supp. at 232. In determining "substantive unconscionability," the "`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.'" American Tel., 833 F.Supp. at 988-89 (quoting Gillman, 537 N.Y.S.2d at 792, 534 N.E.2d at 829); see also American Dredging, 799 F.Supp. at 1339 ("In general, unconscionability requires a showing of the absence of meaningful choice on the part of one of the parties together with contract terms that are unreasonably favorable to the other party."). Moreover, § 2-302(2) provides that the parties "shall be afforded a reasonable opportunity to present evidence" where it is claimed or appears to the court the clause may be unconscionable. N.Y.U.C.C. § 2-302(2); see County Asphalt, Inc. v. Lewis Welding & Eng'g Corp., 444 F.2d 372, 379 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971); Fleischmann, 395 F.Supp. at 232; New York v. Wolowitz, 468 N.Y.S.2d 131, 145-46 (2d Dep't 1983). Although unconscionability is rarely found in a contract between merchants,
Screen East contends that Chromagrafx fails to state a claim for breach of the Authorized Dealer Agreement because the pleading fails to separately state such a claim. Although the Amended Counterclaim is far from a model of clarity, and does not state this claim separately, Chromagrafx sufficiently alleges that Screen East failed to comply with its obligations under the Authorized Dealer Agreement. The facts alleged are sufficient to state a claim for breach of the Authorized Dealer Agreement, under the liberal pleading requirements of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a) (requiring "a short plain statement of the claim showing that the pleader is entitled to relief").
Screen East further argues that Chromagrafx fails to state a counterclaim for breach of warranty, despite Chromagrafx's allegation that the Scanner is defective, see Amended Counterclaim ¶¶ 50-51, because (1) Chromagrafx first purported to assert breach of warranty as an affirmative defense in the Amended Answer without obtaining leave to amend the original answer, and (2) the Amended Counterclaim fails to separately plead a counterclaim for breach of warranty. As Screen East contends, Chromagrafx does not plead breach of warranty as a separate counterclaim. However, Chromagrafx does allege that the Scanner is defective and, in its third affirmative defense, that Screen East breached its warranty of merchantability and its warranty of fitness for a particular purpose. See Amended Answer ¶ 18. Because this affirmative defense could have been pleaded as a counterclaim in the Amended Counterclaim — which Chromagrafx was permitted to file without leave
2. Fraud Counterclaim
As to the fraud counterclaim, Screen East argues that this counterclaim fails as a matter of law because it states nothing more than the alleged breach of contract, and, alternatively, because Chromagrafx fails to allege a sufficient basis for imposing liability on Screen East for Screen USA's acts or omissions. Screen East also contends that Chromagrafx fails to plead the alleged fraud with particularity, as required by Fed. R.Civ.P. 9(b). In opposition, Chromagrafx contends that it alleges, with the requisite particularity, a separable and cognizable claim for fraudulent inducement, and that Screen East may be held liable for Screen USA's alleged misrepresentations.
Under New York law,
Chromagrafx maintains, however, that a fraud counterclaim is sufficient if — as it contends is the case here — it is supported by "specific facts tending to show that at the time the defendant made the asserted representations and promises, it never intended to honor its stated intentions." Defendant-Counterclaimant's Memorandum of Law, at 15; see Amended Counterclaim ¶ 60. Although a promise made with a "preconceived and undisclosed intention of not performing it" can give rise to a fraudulent inducement claim, Deerfield Communications, 510 N.Y.S.2d at 89, 502 N.E.2d at 1004; Stewart v. Jackson & Nash, 976 F.2d 86, 88-89 (2d Cir.1992), the promise must be collateral or extraneous to the terms of the agreement, not merely a promise to perform under the express terms of the contract even if made with no intention to abide by the stated intention. See McKernin, 574 N.Y.S.2d at 59; Spellman, 489 N.Y.S.2d at 307-08; Comtomark, 497 N.Y.S.2d at 372; see also North Triphammer Development Corp. v. Ithaca Assocs., 704 F.Supp. 422, 427 (S.D.N.Y.1989); Sivel v. Readers Digest, Inc., 677 F.Supp. 183, 187 (S.D.N.Y.1988). But see also Smehlik v. Athletes & Artists, Inc., 861 F.Supp. 1162, 1172 (W.D.N.Y.1994) (upholding fraud claim based on an "allegation that the defendant made a promise to perform under the express terms of the contract while intending not to abide by its terms," upon determining that there is a split in authority in New York on this issue). This Court declines to follow contrary authority.
Analyzed under these principles, Chromagrafx's allegations of misrepresentations as to delivery date and technical assistance, see Amended Counterclaim ¶¶ 58, 59, state nothing more than breaches of promises of future performance that constitute the express terms of the contract, not promises collateral or extraneous to the contract. An alleged failure to perform these acts is a breach of contract; as such, the fraud counterclaim would be merely duplicative of the breach of contract counterclaim. Accordingly, Chromagrafx's fraud counterclaim is dismissed with prejudice.
3. Antitrust Counterclaim
Chromagrafx claims that Screen East violated § 2(e) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(e), which provides
15 U.S.C. § 13(e). In short, § 2(e) prohibits a seller from providing services or facilities in connection with the resale of the seller's product unless such services or facilities are made available on proportionally equal terms to all customers who compete for such product. Section 2(e) "`appl[ies] only to services or facilities connected with the resale of the product by the purchaser,'" Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 546 (9th Cir.1983) (quoting Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1317 (9th Cir.1979) (emphasis added)), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 712 (1984), as opposed to the original sale from the seller to the purchaser. See Alan's of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1424 (11th Cir.1990); Foremost, 703 F.2d at 546; L & L Oil Co. v. Murphy Oil Corp., 674 F.2d 1113, 1118-19 (5th Cir.1982); Morris Electronics of Syracuse, Inc. v. Mattel, Inc., 595 F.Supp. 56, 64 (N.D.N.Y.1984); O'Connell v. Citrus Bowl, Inc., 99 F.R.D. 117, 121 (E.D.N.Y. 1983). Thus, "§ 2(e) is violated neither by discriminatory deliveries of products, nor by discriminatory allocation of products." Morris, 595 F.Supp. at 65; see L & L Oil, 674 F.2d at 1118-19; David R. McGeorge Car Co. v. Leyland Motor Sales, Inc., 504 F.2d 52, 55 (4th Cir.1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975).
A review of the Amended Counterclaim demonstrates that Chromagrafx primarily alleges discriminatory delivery and discriminatory allocation of the Scanner. Indeed, paragraph 75 alleges that Chromagrafx was injured in its business by "Screen's discrimination in furnishing to Chromagrafx delivery of the [S]canner." Amended Counterclaim ¶ 75. Paragraphs 72 and 74 are of similar import. To the extent this counterclaim alleges discriminatory delivery or discriminatory allocation of the Scanner, it fails as a matter of law, and must be dismissed. See Morris, 595 F.Supp. at 65. Chromagrafx's use of the phrase "furnishing" in paragraph 75 does not remedy this defect.
Chromagrafx does include, however, an allegation that "Screen East ... discriminated in the furnishing of services to Chromagrafx in that it complied with its agreements with competitor resellers of the Scanner and not to Chromagrafx, which impeded Chromagrafx's ability to compete in the interstate resale market for the Scanner." Id. ¶ 76 (emphasis added). Nevertheless, this conclusory and vague allegation is not sufficient to state a claim for violation of § 2(e). There is no allegation of any resale of the Scanner by any alleged competitor reseller. See Foremost, 703 F.2d at 546; Morris, 595 F.Supp. at 65. In addition, there are no allegations as to what, if any, "services or facilities" were furnished the "competitor resellers" "upon terms not accorded to all purchasers on proportionally equal terms." Compare Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1144 (5th Cir.1992) (complaint failed to plead § 2(e) claim), with Hartley & Parker, Inc. v. Florida Beverage Corp., 307 F.2d 916, 922 (5th Cir.1962) (complaint adequately pleaded § 2(e) claim). It is not even clear whether Kodak, to which the Scanners were allegedly allocated and delivered, is one of the "competitor resellers" allegedly furnished "services" not furnished Chromagrafx. Accordingly, this counterclaim is dismissed without prejudice to Chromagrafx's right to amend within 30 days of the date of this order as to the alleged discriminatory furnishing of services identified in paragraph 76.
B. Motion to Strike
On a motion under Rule 12(f), the court may strike from any pleading any "insufficient" defense. Fed.R.Civ.P. 12(f). A motion to strike an affirmative defense is decided on the basis of the pleadings alone. National Union Fire Ins. Co. v. Alexander, 728 F.Supp. 192, 203 (S.D.N.Y.1989). Affirmative defenses are subject to the general rules of pleading; consequently, a party "shall state in short and plain terms the party's defenses." Fed.R.Civ.P. 8(b); Bobbitt v. Victorian House, Inc., 532 F.Supp. 734, 737 (N.D.Ill.1982). An affirmative defense must sufficiently apprise the opposing party of the nature of the defense, providing the opposing party with adequate notice of the relevant elements of the defense. See
Based on a review of Chromagrafx's pleading, this Court finds that the first and eighth affirmative defenses are legally deficient to the extent they are based on breach by Screen USA. Otherwise, these affirmative defenses are sufficiently pleaded in light of the allegations in the Amended Counterclaim.
The third affirmative defense, as discussed above, needs further clarification as to the nature and basis of the alleged breach of warranty.
The second and fifth affirmative defense is redundant of the first and third affirmative defenses.
The fourth affirmative defense is deficient to the extent it is based on alleged conduct of Screen USA, and is insufficient as against Screen East since there are no allegations in the pleading of "dishonest purpose" or other similar conduct of Screen East. See, e.g., Middle East Bank, New York Branch v. Harmony Sportswear, Inc., No. 93 Civ. 228, 1994 WL 74057, at *6 (S.D.N.Y. Mar. 10, 1994) (dismissing affirmative defense and counterclaim for breach of the implied covenant of good faith and fair dealing where there was no proof of "dishonest purpose or sinister intent" of plaintiff; citing Kalisch-Jarcho, Inc. v. New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 750 & n. 5, 448 N.E.2d 413 (1983)).
The sixth affirmative defense is technically deficient because it fails to provide sufficient notice of the basis for, or amount of, the claimed deduction from the purchase price for Chromagrafx's employee's trip.
As for the seventh affirmative defense, Chromagrafx alleges that Screen East is "barred from bringing an action under the doctrines of estoppel and unclean hands." Amended Answer ¶ 22 (emphasis added). Pleading the words "estoppel" and "unclean hands" without more, as Chromagrafx has done, is not a sufficient statement of these defenses. See Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 841 (S.D.N.Y.1988). Chromagrafx gives no indication to Screen East as to how either of these defenses bars any of Screen East's claims.
Accordingly, the first and eighth affirmative defenses, to the extent they are based on breach by Screen USA, are stricken without prejudice to Chromagrafx's right to amend within 30 days from the date of this order (provided Chromagrafx can allege a basis for holding Screen East liable for Screen USA's alleged breach); the second and fifth affirmative defense are stricken; and the third, fourth, sixth and seventh affirmative defenses are stricken without prejudice to Chromagrafx's right to amend within 30 days from the date of this order.
For the reasons above, plaintiff's motion to strike the affirmative defenses is granted in part and denied in part as follows: (1) the first and eighth affirmative defenses, to the extent they are based on breach by Screen USA, are stricken without prejudice to Chromagrafx's right to amend within 30 days from the date of this order (provided Chromagrafx can allege a basis for holding Screen East liable for Screen USA's alleged breach); the second and fifth affirmative defense are stricken; and the third, fourth, sixth and seventh affirmative defenses are stricken without prejudice to Chromagrafx's right to amend within 30 days from the date of this order. Plaintiffs motion to dismiss (1) is granted in part and denied in part as to the breach of contract counterclaim as set forth above; (2) granted as to the fraud counterclaim, which is dismissed with prejudice; and (3) granted as to the antitrust counterclaim, which is dismissed without prejudice to Chromagrafx's right to amend within 30 days of the date of this order as to the alleged