Full opinion text
ORDER HULL, District Judge. This action is before the Court on (1) Plaintiffs Motion for Partial Summary Judgment [143-1], (2) Defendant’s Motion for Summary Judgment [144-1], (3) Plaintiffs Motion for Leave to File a Supplemental Brief [172-1], (4) Defendant’s Motion to Strike Affidavit [186-1], (5) Defendant’s Motion for Expenses [186-2], (6) Defendant’s Motion for Attorney Fees [186-3], and (7) Plaintiffs Motion to Require MCI to Show Cause Why It Should Not Be Held in Contempt [194-1]. I. FACTUAL BACKGROUND Defendant MCI Telecommunications Corporation (“MCI”) is a long distance telecommunications carrier. Defendant MCI provides long distance telecommunications services to individual and corporate users. Plaintiff International Telecommunications Exchange Corporation (“Intex/Delaware”) is a reseller of long distance telephone services. Plaintiff Intex-Delaware enters into bulk purchase agreements with major long distance telecommunications carriers, such as MCI, to acquire access to those carriers’ long distance telephone networks. Plaintiff In-tex/Delaware receives a discount on the long distance time that Plaintiff purchases due to the large volume it acquires. Plaintiff In-tex/Delaware resells the long distance time, at a higher rate, to small and medium sized businesses. This action concerns an agreement between Defendant MCI and Plaintiff Intex/Delaware involving the sale of long distance time. Plaintiff Intex/Delaware is one of three companies originally owned by Douglas and Deborah Wilcox (the ‘Wilcoxes”). On September 9, 1989, the Wilcoxes registered the first of the three corporations that composed the Intex corporations. That first corporation was known as National Access Telecommunications Corporation (“NATC”) in California. In June, 1990, NATC changed its name to International Telecommunications Exchange Corporation, but remained a California corporation (“Intex/California”). On September 28, 1990, the Wilcoxes formed the two other corporations in the Intex trio, Intex Services, Inc. and Intex Communications Group, Inc. Intex Services was created to service large national accounts with which Intex/California would establish a relationship. Intex Communications Group was intended to become the parent of Intex Services and Intex/California. In March, 1991, Intex Communications Group, Inc., a Delaware corporation, changed its name to International Telecommunications Exchange Corporation, but remained a Delaware corporation. There were now two corporations created by the Wilcoxes that were named International Telecommunications Exchange Corporation. The first International Telecommunications Exchange Corporation was a California corporation, i.e. Intex/California. The second International Telecommunications Exchange Corporation was a Delaware corporation, i.e. Intex/Dela-ware. The Plaintiff in this case is the second of the two companies named International Telecommunications Exchange Corporation, and is referred to in this Order as Intex/De-laware. On or about November 16,1990, Intex/Cal-ifornia entered into a Special Customer Agreement (the “SCA”) with Defendant MCI. Pursuant to the SCA, Defendant MCI was to provide certain long distance telecommunications services to Intex/California. In-tex/California would then re-sell these same long distance services to its customers at a higher rate. Under the terms of the SCA, Intex/California was to provide an agreement whereby a third party would guarantee payment for a portion of the services Intex/Cali-fornia received from Defendant MCI. To fund the initial cost of Intex/California, the Wilcoxes borrowed large amounts of money. Among the individuals who loaned money to Intex/California were Chin-Shin Chen and Samuel Chen (the “Chens”). Despite the Wilcoxes’ efforts, Intex/Cali-fornia was unable to obtain a guarantee from Chrysler First Financial Corporation (“CFFC”), as required in the SCA. By the beginning of 1991, the Wilcoxes were in danger of default under the terms of the Wil-coxes’ loan agreement with the Chens. On January 7, 1991, the Wilcoxes and the Chens entered into a forbearance agreement, whereby the Chens agreed to forbear foreclosure upon Intex/California until February 15, 1991 in exchange for certain valuable consideration. The Wilcoxes and the Chens agreed that the Chens could foreclose upon Intex/California if the Wilcoxes failed to perform under the January 7, 1991 forbearance agreement. On February 8,1991, the Chens’ counsel informed the Wilcoxes that the Chens intended to enforce their rights under the forbearance agreement and foreclose upon Intex/California. In early February 1991, John Paul DeJoria was approached by the Wilcoxes and agreed to invest in Intex/Delaware. DeJoria’s initial investment consisted of a $350,000 loan and two $500,000 letters of credit. The two letters of credit were used to satisfy the SCA’s requirement that Intex provide a guarantee agreement. Up to this point, the parties agree as to the above recited facts. The parties dispute, however, the events beginning in early February, 1991. One of the principal factual disputes between the parties is whether Plaintiff Intex/Delaware has standing to sue Defendant MCI for breach of the SCA, when both parties agree that the original signatories to the SCA were Defendant MCI and Intex/California, not Intex/De-laware. It is undisputed that Defendant MCI continued to provide telecommunications services pursuant to the SCA until June, 1992. Plaintiff Intex/Delaware claims that the SCA was assigned by Intex/California to Intex/De-laware and that Plaintiff Intex/Delaware continued to perform Intex/California’s obligations under the SCA. However, Defendant MCI disputes whether an assignment occurred and whether Intex/Delaware or In-tex/California was performing under the SCA. Plaintiff Intex/Delaware also claims that Defendant MCI was aware of Plaintiffs performance of the SCA. Plaintiff alleges that, despite Plaintiff Intex/Delaware’s performance of the SCA, Defendant MCI decided that the SCA was undesirable and began a campaign to rid itself of Intex/Delaware and the SCA. According to Plaintiff Intex/Dela-ware, Defendant MCI’s attempts to break the SCA resulted in Defendant MCI’s unilateral breach of the SCA, and certain harm to Plaintiff Intex/Delaware. Plaintiff Intex/De-laware seeks, among other things, recovery for damages incurred as a result of Defendant MCI’s purported failure to render services that Defendant MCI allegedly was obligated to provide under the SCA, and recovery for MCI’s allegedly improper termination of the SCA. Defendant MCI paints a different picture of the events surrounding the SCA. As stated above, both parties agree that Defendant MCI and Intex/California entered into the SCA. Defendant MCI contends, however, that the SCA was never assigned or otherwise validly transferred from Intex/California to Plaintiff Intex/Delaware, and that In-tex/Delaware began performing the SCA as an imposter of Intex/California. Defendant MCI also alleges that Plaintiff Intex/Dela-ware misrepresented to Defendant MCI that Plaintiff was the original signatory to the SCA. Defendant MCI also claims that even if Plaintiff Intex/Delaware has standing to enforce the SCA, the only enforceable obligations that Defendant MCI has are listed in the SCA and Defendant MCI did not breach any of its obligations under the SCA. Defendant MCI also alleges that Plaintiff Intex/De-laware owes Defendant MCI over two million dollars for various telecommunication services provided by Defendant to Plaintiff. Plaintiff Intex/Delaware brings this action claiming that Defendant MCI is liable to Plaintiff for MCI’s breach of various contractual obligations under the SCA. In Counts One and Two of its Amended Complaint, Plaintiff alleges that Defendant MCI violated the Communications Act of 1934, specifically 47 U.S.C. § 201(b) and 47 U.S.C. § 202(a). In orders dated October 15,1993, and May 9, 1994, Judge Robert H. Hall, United States District Judge for the Northern District of Georgia, ceded jurisdiction over Counts One and Two to the Federal Communications Commission (the “FCC”). In Count Three of its Complaint, Plaintiff alleges that Defendant MCI overbilled Plaintiff in violation of 47 U.S.C. § 203(c). Counts Four through Seven of Plaintiffs Complaint allege claims under state law. In Count Four, Plaintiff Intex/Delaware alleges that Defendant MCI breached the SCA. In Count Five, Plaintiff alleges that Defendant MCI breached its duty of implied duty and good faith. In Count Six, Plaintiff alleges that Defendant tortiously interfered with Plaintiffs contractual and business relations. In Count Seven, Plaintiff seeks attorney fees because “MCI has acted in bad faith, has been stubbornly litigious, and has caused IN-TEX unnecessary trouble and expense.” Second Amended Complaint, ¶ 60 [121-1], Defendant MCI filed a five count Counterclaim. In Count One of its Counterclaim, Defendant MCI alleges that Plaintiff In-tex/Delaware fraudulently misrepresented itself as Intex/California. In Count Two, Defendant MCI alleges, as an alternative count to Count One, that if Plaintiff Intex/Delaware is the same legal entity as Intex/California, then Plaintiff owes Defendant for services rendered pursuant to the SCA. Included in Count Two are Defendant MCI’s prayer for underutilization penalties that Defendant MCI claims Plaintiff owes pursuant to the SCA. In Count Three, Defendant MCI alleges, regardless of whether Intex/Delaware and Intex/California are the same entity, that Plaintiff Intex/Delaware owes Defendant money for services provided pursuant to the SCA. In Count Four, Defendant MCI alleges that John Paul DeJoria, the owner of Intex/Delaware, fraudulently induced Defendant MCI not to draw upon the one million dollar letter of credit. Defendant MCI alleges that due to DeJoria’s false representations, Defendant MCI suffered monetary harm “in an amount not less than $100,000.” Defendant MCI’s Second Amended Counterclaim, ¶ 47 [122-2]. In Count Five, Defendant MCI also seeks recovery for attorney fees for Plaintiffs alleged “bad faith” and “bad and litigious” behavior. Defendant MCI moves for summary judgment on all counts in Plaintiffs Complaint. Defendant MCI also moves for summary judgment on Counts Two and Three of its Counterclaim where MCI alleges that Plaintiff owes Defendant MCI for services performed. Plaintiff Intex/Delaware moves for partial summary judgment on the following claims in Defendant MCI’s Counterclaim: (1) the fraud claim in Count One, (2) the underu-tilization penalty claim in Count Two, and (3) the fraud claim in Count Four. II. PLAINTIFF INTEX/DELAWARE’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF Plaintiff IntexDelaware complains that Defendant MCI raises new grounds for summary judgment in Defendant’s Reply to Plaintiffs Response to Defendant’s Motion for Summary Judgment. After review of Defendant’s Reply, the Court agrees that Defendant raises new grounds for summary judgment in parts of its Reply Brief. In other portions, however, Defendant merely replies to defenses raised by Plaintiff. Normally, a party may not raise new grounds for granting its motion in a reply. Where a party does raise new grounds in its reply, the Court may either strike the new grounds or permit the non-moving party additional time to respond to the new argument. Here, the Court finds that the latter course is appropriate. Therefore, the Court GRANTS Plaintiffs Motion for Leave to File a Supplemental Brief. The Court will consider Plaintiffs Supplemental Brief. The Court recognizes that Defendant requests the opportunity to respond to Plaintiffs Supplemental Brief. The Court will consider Plaintiffs Supplemental Brief because it, in part, is Plaintiffs first opportunity to respond to issues first raised in Defendant’s Reply. The Court declines to begin again a briefing schedule that should have ceased upon the filing of Defendant MCI’s Reply Brief in Support of its Motion for Summary Judgment. Defendant’s own conduct in raising new grounds for summary judgment in Defendant’s Reply necessitates Plaintiffs Supplemental Brief on those grounds, but not further briefing. The Court finds that all issues raised in all Motions have been briefed adequately by all parties. Therefore, the Court DENIES Defendant MCI’s request to reply to Plaintiffs Supplemental Brief. III. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(e) defines the standard for summary judgment as follows: courts should grant summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The general rule of summary judgment in the Eleventh Circuit states that the moving party must show the court that no genuine issue of material fact should be decided at trial. Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-09 (11th Cir.1991). Unless the movant for summary judgment meets its burden under Federal Rule of Civil Procedure 56, the obligation of the opposing party does not arise even if no opposing evidentiary material is presented by the party opposing the motion. Clark, 929 F.2d at 607-08. While all evidence and factual inferences are to be viewed in a light most favorable to the nonmoving party, Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.1987); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is “merely colorable” or is “not significantly probative.” Id. at 250, 106 S.Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party’s case. Id. at 248, 106 S.Ct. at 2510. Where neither party can prove either the affirmative or the negative of an essential element of a claim, the movant meets its burden on summary judgment by showing that the opposing party will not be able to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). In Celotex, the Supreme Court interpreted Federal Rule of Civil Procedure 56(c) to require the moving party to demonstrate that the nonmoving party lacks evidence to support an essential element of its claim. Thus, the movant’s burden is “discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. IV. DEFENDANT MCI’s MOTION FOR SUMMARY JUDGMENT ON COUNTS FOUR AND FIVE OF PLAINTIFF INTEX/DELAWARE’S COMPLAINT As detailed above, Defendant MCI moves for summary judgment on all counts of Plaintiff Intex/Delaware’s Complaint, and for summary judgment on Count Two of Defendant MCI’s Counterclaim. The Court first addresses Defendant MCI’s Motion for Summary Judgment regarding Plaintiff Intex/De-laware’s claims for breach of contract as alleged in Counts Four and Five of Plaintiffs Complaint. In Count Four of its Complaint, Plaintiff alleges breach of contract, based on Defendant’s purported failure to provide certain services necessary for the performance of the SCA, and for Defendant’s alleged improper termination of the SCA. In Count Five of its Complaint, Plaintiff alleges breach of an implied covenant of good faith and fair dealing, based upon Defendant’s alleged breach of its contractual duties discussed in Count Four. Defendant moves for summary judgment on both of these counts on numerous grounds. A. Choice of Law Under the SCA The SCA provides that the substantive law of New York applies to the SCA, as follows: [tjhis Agreement, including all matters relating to the validity, construction, performance and enforcement thereof, shall be governed by the laws of the State of New York without giving reference to its principles of conflicts of laws. SCA, ¶ 18. “Absent a contrary public policy, [Georgia courts] will normally enforce a contractual choice of law clause.” Carr v. Kupfer, 250 Ga. 106, 107, 296 S.E.2d 560 (1982); Kinnick v. Textron Financial Corp., 205 Ga.App. 429, 429, 422 S.E.2d 303 (1992). The Court finds that application of the parties’ contractual choice of law is not contrary to Georgia’s public policy. Therefore, the substantive law of New York applies to certain issues in this ease. State choice of law provisions do not bar the applicability of federal law to certain provisions in the SCA. The SCA incorporates MCI Tariff FCC No. 1 (the “MCI Tariff’ or the “Tariff’) and expressly provides that Intex understands that in conducting its business under the SCA, MCI is subject to the Federal Communications Act of 1934, as amended, applied and interpreted by the FCC. The Eleventh Circuit recognizes that contracts involving federally regulated entities that contain state choice of law provisions do not bar the applicability of federal law to the parties’ relationship. As was stated in Atkinson v. General Elec. Credit Corp., 866 F.2d 396 (11th Cir.), cert. denied, 493 U.S. 815, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989), providing that a contract is to be governed by “state law does not signify the inapplicability of federal law, for a fundamental principle in our system of complex national polity mandates that the Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution.” Id. at 398 (quoting Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 157, 102 S.Ct. 3014, 3024, 73 L.Ed.2d 664 (1982)). Federal law applies to the applicable MCI Tariff, except where the SCA contradicts the Tariff. New York law governs the general contract terms in the SCA, except for the Tariff and the specific SCA contract terms that contradict the Tariff. B. Capacity to Sue Defendant MCI’s first ground for summary judgment on Plaintiff Intex/Delaware’s contract claims is that Plaintiff does not have standing to enforce the SCA. Defendant contends that Plaintiff is not a party to the SCA, and, thus, lacks the capacity to sue to enforce the SCA. Defendant argues that Intex/California was the only signatory to the SCA and Intex/California never assigned or otherwise validly transferred the SCA to Plaintiff Intex/Delaware. Plaintiff Intex/De-laware responds that it does have standing to enforce the SCA. To support its position, Plaintiff contends that Intex/California assigned the SCA to Plaintiff Intex/Delaware. Plaintiff also argues that under the facts in this action either a novation occurred, or Defendant MCI ratified the change in parties or has waived any objection to the performance of the SCA by Plaintiff Intex/Dela-ware. 1. Assignment of the SCA There is no evidence that there was a written assignment of the SCA from In-tex/California to Intex/Delaware. Plaintiff contends, however, that an oral assignment occurred. Plaintiffs first hurdle is a non-assignment clause in the SCA. The SCA contains a clause that limits a party’s ability to assign the SCA. Specifically, the SCA non-assignment clause states that assignments of the SCA are not permitted unless Defendant MCI is provided notice, as follows: [t]his Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns; provided, however, that Customer may not assign or otherwise transfer this Agreement or any of its interest herein without the prior and express written consent thereto by MCI. Notwithstanding the foregoing, Customer may assign this Agreement to its wholly-owned subsidiary upon notice to MCI provided the assignee’s financial strength is equal to or greater than that of Customer, and further provided that Customer shall remain responsible for full performance of this Agreement. Neither the whole nor any part of the interest of Customer in this appointment shall be transferred or assigned by operation of law. SCA, at ¶ 17. Plaintiff contends that while the non-assignment clause restricts In-tex/California’s right to assign the SCA, an assignment to another entity is not void under the particular phraseology of this non-assignment clause. Under New York law, a non-assignability clause is treated as a personal covenant that does not invalidate an otherwise proper transfer, unless the clause states specifically that any assignment shall be void, as follows: “[a] basic rule of construction of nonassign-ability clauses is that in the absence of language explicitly barring assignment of a contract right so as to provide that any assignment of it shall be void, a clause prohibiting assignment will be interpreted as a personal covenant not to assign. Thus, a breach of covenant not to assign creates a right in the contract-obligee to recover against the obligor-assignor any damage suffered by reason of the assignment, but it does not affect the transfer of contract rights to the assignee. Belge v. Aetna Cas. & Sur. Co., 39 A.D.2d 295, 334 N.Y.S.2d 185, 187 (1972) (citations omitted); see also Citibank, N.A. v. Tele/Resources, Inc., 12A F.2d 266, 268 (2d Cir.1983); Goldring v. Sletco Realty, Inc., 129 Misc.2d 756, 494 N.Y.S.2d 56, 58 (1985); University Mews Assocs. v. Jeanmarie, 122 Misc.2d 434, 471 N.Y.S.2d 457, 461 (1983). The Court agrees with Plaintiffs position. Under New York law, the non-assignment clause of the SCA removed Intex/California’s right to assign the SCA, but did not eliminate the power to assign the SCA. See, e.g., Belge v. Aetna Cas. & Sur. Co., 39 A.D.2d 295, 334 N.Y.S.2d 185, 187-88 (1972); University Mews Assocs. v. Jeanmarie, 122 Misc.2d 434, 471 N.Y.S.2d 457 (1983). Therefore, the assignment, if in fact it occurred, is valid despite the non-assignment clause contained in the SCA. The Court now addresses whether Intex/California validly assigned the SCA to Plaintiff Intex/Dela-ware. Under New York law, only a party to the contract may enforce the terms of the contract. Empire Volkswagen, Inc. v. World-Wide Volkswagen Corp., 627 F.Supp. 1202, 1212 (S.D.N.Y.1986), aff'd, 814 F.2d 90 (2d Cir.1987); Crown Wisteria, Inc. v. F.G.F. Enterprises Corp., 168 A.D.2d 238, 562 N.Y.S.2d 616, 618 (1990). Plaintiff Intex/Delaware claims that Intex/California orally assigned the SCA to Plaintiff. In New York, “[t]he use of the word ‘assign’ is not essential to effect a valid assignment.” Banque Arabe et Int’l D’Investissement v. Bulk Oil (USA), Inc., 726 F.Supp. 1411, 1417 (S.D.N.Y.1989) (quoting In re Boissevain’s Estate, 40 Misc.2d 237, 243 N.Y.S.2d 36, 43 (1963)). Instead, ‘“any act or words are sufficient which show an intention of transferring the chose in action to the assignee, when the assignor is divested of all control and right to cause of action and the assignee is entitled to control it and receive its fruits.’ ” Id. (quoting Advance Trading Corp. v. Nydegger & Co. Inc., 127 N.Y.S.2d 800, 801 (N.Y.Sup.Ct.1953)). In this case, Defendant MCI offers the affidavit of Douglas Wilcox, the major shareholder and officer of Intex/California, who states that the SCA was never transferred, as follows: During the time in which I was an officer and shareholder in INTEX, the California corporation, to my [sic], that corporation never assigned its SCA with MCI to Intex Communications Group, Inc., or to any other corporation or entity. I never advised anyone at MCI that Intex Communications Group, Inc., the Delaware corporation, was a party to the SCA or that it executed the SCA. I also never made any similar statements to Stephen Fingal or Dennis Menke. Douglas Wilcox affidavit of May 27, 1994, attached to Defendant MCI’s Motion for Summary Judgment. In response to Wilcox’s May 27, 1994 affidavit, Plaintiff Intex/Delaware offers another affidavit of Wilcox’s. The Wilcox affidavit submitted by Plaintiff is dated May 7, 1994. In his May 7, 1994 affidavit, Wilcox does not state that he signed a document assigning the SCA to Intex/Delaware. Wilcox does state, however, that it was his intention to “place” the SCA in Intex/Delaware, as follows: Soon after Mr. DeJoria became involved in the transaction, Mr. Menke, who was now a stockholder, director, and member of the executive committee, along with Stephen Fingal, the corporate attorney for INTEX of California, met with me and told me of the fact that Mr. DeJoria wished to operate through a Subchapter S corporation so that he would be able to use the tax advantages of some of the losses that INTEX was incurring. Mr. Menke told me that INTEX of California had six (6) classes of stock, which he said legally disqualified it from converting to a Subchapter S corporation, and that INTEX Communications Group, the Delaware corporation, had a single class of shares and could easily elect Subchapter S status. Therefore, Mr. Menke and Mr. Fingal advised me that I should inform MCI that the SCA actually had been executed by the Delaware corporation rather than by INTEX of California. I did not do so, although I advised Ray McBride to tell MCI, through Ben Ditta, that we had the full intention to put the SCA in INTEX Communications Group. The placement of the MCI SCA into the Delaware corporation was not intended to defraud creditors of either corporation, nor was it intended to injure or defraud MCI in any way. When I instructed Mr. McBride to tell MCI that INTEX of California wanted to put the SCA into the Delaware corporation, and that the Executive Committee had decided to do so, he indicated that he would do so. May 7, 1994 affidavit of Wilcox, at ¶ 9, 10, exhibit D of Plaintiffs Statement of Material Facts. Examining the two Wilcox affidavits, it is unclear whether an assignment occurred or did not occur. Wilcox expressly states that he intended to assign the SCA to In-tex/Delaware, but never actually followed through with the assignment. Wilcox also states that the Executive Committee decided to transfer the SCA into Intex/Delaware, and Wilcox refers to the “placement” of the SCA, thereby suggesting in the past tense that the transfer occurred. Plaintiff Intex/Delaware does not rest its assignment argument on Wilcox’s affidavit alone. Plaintiff contends that other evidence in the record demonstrates that the SCA was assigned to Intex/Delaware. Specifically, Plaintiff contends that Scott McBride, senior vice-president for marketing and sales for Intex/California and Intex/Delaware, stated that the Wilcoxes were going to use In-tex/Delaware to perform the SCA, as follows: [t]he Wilcoxes told me that their intentions were to use the International Telecommunications Group or Intex Communications Group Corporation which was formed in September of ’90, they were going to change the name to International Telecommunications Exchange Corporation and use it as the vehicle for carrying out the SCA and their ongoing business endeavors. McBride Deposition II, at 26-7. Additionally, Plaintiff cites the deposition testimony of John Allen, the Chief Financial Officer of both Intex/California and Intex/Delaware, where Allen states that the decision was made that Intex/Delaware would perform the SCA, as follows: Q: The decision was made that the MCI contract would be performed by the Delaware corporation; correct? A: Yes. Q: And that was based upon a decision that Mr. Wilcox made; correct? A: Well, based upon, at least, his input. Again, as I’ve said earlier, he did not make that kind of decision solely on his own. See John Allen Deposition, at 79. Additionally, it is undisputed from the record, as currently presented, that Intex/Delaware began performing the SCA. In short, genuine issues of material fact remain to be tried regarding whether In-tex/California assigned the SCA to Plaintiff Intex/Delaware. After careful consideration of the record, and taking all evidence and factual inferences in the light most favorable to the non-moving party, the Court finds that, on the record to date, Defendant MCI has not carried its burden to show as a matter of law that no assignment occurred and that Plaintiff Intex/Delaware lacks capacity to enforce the SCA. 2. Ratification and Waiver In opposing Defendant MCI’s Motion for Summary Judgment, Plaintiff Intex/Delaware also contends that it has capacity to enforce the SCA by virtue of ratification of the SCA by Defendant, or by Defendant’s waiver of any objection to Plaintiff Intex/Delaware’s performance of the SCA. Waiver requires “(1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge thereof; and (3) an intention to relinquish such right, privilege, advantage, or benefit.” Highland Ins. Co. v. Trinidad & Tobago (BWIA Int’l Airways), 739 F.2d 536, 537 (11th Cir.1984) (citations omitted). Waiver may be express or implied. 200 East 87th Street Assoc. v. MTS, Inc., 793 F.Supp. 1237 (S.D.N.Y.), aff'd, 978 F.2d 706 (2d Cir.1992). The intent to waive a right, however, “ ‘must be clearly established and cannot be inferred from doubtful or equivocal acts or language, and the burden of proof is on the person claiming the waiver of the right.’” Id. (quoting East 56th Plaza, Inc. v. Abrams, 91 A.D.2d 1129, 458 N.Y.S.2d 953, 955 (1983). Under New York law, ratification occurs where a party to a contract acts in a manner to affirm whatever change has occurred in the contract that would otherwise permit the party to void the contract, as follows: [w]hen a party with full knowledge, or with sufficient notice of his rights and of all the material facts, freely does what amounts to a recognition or adoption of a contract or transaction as existing, or acts in a manner inconsistent with its repudiation, and so as to affect or interfere with the relations and situation of the parties, he acquiesces in and assents to it and is equitably estopped from impeaching it, although it was originally void or voidable. Corning Glass Works v. Southern New England Telephone Co., 674 F.Supp. 999, 1013 (W.D.N.Y.1987) (quoting Rothschild v. Title Guarantee and Trust Co., 204 N.Y. 458, 97 N.E. 879 (1912)). Several issues of material fact exist in the record regarding whether Defendant MCI either ratified the SCA with Intex/Delaware as the performing party or waived any objection to Intex/Delaware’s performance of the SCA. For example, a March, 1991 document, entitled “Indemnity and Interim Facilitating Agreement,” identifies Intex/Dela-ware as one of the entities that would perform the SCA. Defendant’s alleged knowledge of that fact is supported by that same Indemnity and Interim Facilitating Agreement because Defendant’s finance director, McCumber, who did most of the due diligence work on the SCA, has handwritten notes on that agreement. There is also testimony from Plaintiffs Menke that he and MCI’s McCumber discussed the fact that Intex/Delaware would perform the SCA. Whether MCI had knowledge that the SCA was being performed by Intex/Delaware, and, thus, should be bound by continuing to act under the SCA with Intex/Delaware, remains a disputed factual issue. C. Count Four: Plaintiffs Breach of Contract Claims Against Defendant As a result of the above finding, the Court will assume, arguendo, that Plaintiff In-tex/Delaware has standing to enforce the SCA and proceed to determine whether Defendant MCI’s Motion for Summary Judgment should be granted on Plaintiffs claims in Count Four that Defendant breached its contractual obligations. Specifically, Plaintiff contends (1) that Defendant MCI failed to perform certain services that Defendant was to provide to Plaintiff, and (2) that Defendant improperly terminated the SCA. As its first ground for breach of contract, Plaintiff alleges that Defendant promised to perform and failed to perform the following services: (1) MCI failed to take the steps necessary to ensure that Intex/Delaware customers were actually on-line after receipt from Intex/Delaware of information necessary to connect the customer, (2) MCI failed to provide Intex/Delaware with timely reports of ANIs that had been rejected by the LEC, (3) MCI failed to provide Intex/Delaware with LEC confirmation of PIC changes, (4) MCI failed to provide Intex/Delaware with other information necessary for In-tex/Delaware to validate and reconcile its account base, (5) MCI unreasonably delayed submitting billing tapes to Intex/Delaware which caused delays in billing and other damages to Intex/Delaware, and (6) MCI failed to notify Intex/Delaware of the existence of the “Q” accounts on a timely basis and upon notification, failed to provide appropriate billing records on a timely basis. Plaintiffs Second Amended Complaint, at ¶46. Plaintiff contends that by failing to perform the above services, Defendant is ha-ble for breach of contract. Defendant seeks summary judgment on Plaintiffs claims, contending (1) that Defendant is not contractually obligated to provide these services because the SCA, and the Tariff incorporated therein, are the entire agreement between the parties and the SCA and the Tariff do not reference or require Defendant to perform any of the above services, and (2) that since neither the SCA nor the Tariff requires Defendant to provide any of the above services, Plaintiffs claims are barred by the Filed Tariff Doctrine. The Special Customer Agreement, referred to as the “SCA,” is in the form of a letter agreement. The SCA expressly incorporates the MCI Tariff and expressly provides that MCI will provide services to Plaintiff pursuant to the SCA and the tariffs governing such services, as follows: November 16, 1990 International Telecommunications Exchange Corporation Suite 600, Republic Center Chattanooga, Tennessee 37450 Attention: Mr. Doug Wilcox Chairman of the Board Subject: Agreement for Telecommunications Services Reference: MCI Tariff FCC No. 1, As Filed and Effective Dear Mr. Wilcox: This letter constitutes an agreement for telecommunications service between MCI Communications Corporation (“MCI”) and International Telecommunications Exchange Corporation (“Customer”). MCI will provide to Customer, and Customer will receive from MCI, interstate serviee(s), intrastate service(s), and international services pursuant to this Agreement and MCI’s tariffs governing such services. This agreement incorporates by reference the terms of MCI Tariff No. 1 (“Tariff’) on file with the Federal Communications Commission, which Tariff may be modified from time to time by MCI in accordance with law and thereby affect the service(s) furnished Customer, except that the following terms and conditions shall supplement or, to the extent inconsistent, supersede Tariff terms and conditions and shall remain in effect throughout the service term. November 16, 1990 Special Customer Agreement (Emphasis supplied). As to item one above in Plaintiffs list of breaches, Plaintiffs allegation that Defendant failed to “provision service” for “6,270 ANIs” is arguably encompassed under number one of Plaintiffs list of services that Defendant allegedly failed to provide. As described in Plaintiffs Supplemental Brief, “MCI’s fundamental breach of the SCA was its failure to provide the telecommunications services it agreed to supply to Intex, which would then be passed on to Intex’s customers.... Intex is seeking to recover damages for 6,270 ANIs [Automatic Number Identifiers] for which MCI failed to provision service.” Plaintiff Supplemental Brief, at 5-6. The Court finds that there are genuine issues of material fact as to whether MCI failed to take steps at times necessary to connect customer service in this regard. This service is provided for in the SCA and the Tariff incorporated therein. Therefore, the Court DENIES Defendant MCI’s Motion for Summary Judgment on Plaintiffs breach of contract claim described in item one above. As to Plaintiffs breach of contract claims described in items two through six above, both parties appear to agree, or if not the Court finds, that these services are not covered by the written terms of the SCA or the Tariff. Plaintiff appears to allege (1) that these services are terms of a separate oral contract between Plaintiff and Defendant, or (2) that these services are a valid oral modification of the SCA, or (3) that these services are admissible parol evidence to define ambiguous terms in the SCA. Each argument is without merit. First, the SCA contains two merger clauses. “A subsequent written agreement lucidly manifest[ing] the parties’ intent that the written agreement supersede” any oral agreement, and that it “constitute^] the entire agreement between the parties,” will preclude inquiry into any prior or contemporaneous agreements between the parties. Doherty v. New York Tel. Co., 202 A.D.2d 627, 609 N.Y.S.2d 306, 307 (1994). Defendant contends that the SCA was the complete agreement between Defendant MCI and Plaintiff. The first merger clause in the SCA provides that the parties to the SCA understand that the SCA, along with the appropriate MCI tariffs, is the complete agreement between the parties, as follows: [t]his agreement together with the appropriate MCI tariffs is the complete agreement of the parties and supersedes all other prior agreements and representations concerning its subject matter. SCA, ¶ 11. The next paragraph in the SCA provides that the SCA is the whole agreement between the parties and that any modification must be in writing, as follows: [t]his Agreement constitutes the entire agreement of the parties with respect to its subject matter, and no prior or contemporaneous understanding or representation, whether written or oral, shall be binding except to the extent expressly set forth herein. This agreement may be amended only in writing signed by both parties. SCA, ¶ 12. To avoid the merger clauses in the SCA, Plaintiff focuses upon the phrase in paragraphs eleven and twelve of the SCA that limits the merger clauses to “this subject matter.” Plaintiff argues that the “this subject matter” of the SCA is volume discounts, and not the separate obligations that MCI undertook by virtue of the carrier-reseller relationship the parties entered into, and thus, the services that MCI failed to provide were not part of the subject matter of the SCA. The Court disagrees. Plaintiffs interpretation of the scope of the subject matter encompassed by SCA, as limited to only volume discounts, is an overly restrictive reading of the SCA. All of the services that Plaintiff alleges that MCI failed to provide relate to the arrangement between Plaintiff and Defendant whereby Defendant MCI would sell telephone time to Plaintiff for resale to Plaintiffs customers. The Court finds that the services that MCI allegedly promised to render to Plaintiff are within the scope of the subject matter as contemplated by the parties in the SCA, and thus, Plaintiff is bound by the merger clauses within the SCA. If Plaintiff required special considerations that were necessary for Plaintiffs compliance with the SCA, then the parties should have specifically provided for them in the SCA. Plaintiffs second theory is that these services are part of an oral modification of the SCA. The SCA, however, contains a clause that prohibits modifications, as follows: “[t]his Agreement may be amended only in writing signed by both parties.” SCA, at ¶ 12. The Court finds that there is no evidence of a written agreement to modify signed by both parties, as required by the SCA. Plaintiffs third theory is that, in addition to Defendant’s failure to provide telecommunications services to Plaintiff, Defendant failed to provide other services that involve the confirmation of the orders that Plaintiff placed with Defendant pursuant to the SCA. Plaintiff relies upon the language in the SCA regarding Defendant’s agreement to provide “interstate service(s), intrastate service(s), and international service(s) pursuant to this Agreement and MCI’s tariffs governing such services,” as the source of Defendant’s contractual obligation. Plaintiffs quotation to the SCA, however, is not complete. The SCA states that Defendant MCI will provide service to Plaintiff Intex/Delaware pursuant to the MCI Tariff, except where one of the paragraphs enumerated in the SCA supplements or contradicts the Tariff, in which case the SCA controls, as follows: MCI will provide to Customer, and Customer will receive from MCI, interstate serviee(s), intrastate service(s), and international services pursuant to this Agreement and MCI’s tariffs governing such services. This agreement incorporates by reference the terms of MCI Tariff No. 1 (“Tariff’) on file with the Federal Communications Commission, which Tariff may be modified from time to time by MCI in accordance with law and thereby affect the service(s) furnished Customer, except that the following terms and conditions shall supplement or, to the extent inconsistent, supersede Tariff terms and conditions and shall remain in effect throughout the service term. November 16, 1990 SCA. The SCA specifically incorporates the MCI Tariff and provides that these services are to be provided pursuant to the Tariff. Only where the “following terms and conditions” either supplement the Tariff or are inconsistent with the Tariff does the SCA control. Plaintiff does not attempt to argue, nor does examination of the SCA reveal, that any of the paragraphs following the above paragraph in the SCA obligate Defendant to provide any of the services enumerated by Plaintiff. Plaintiff has not directed the Court to any provision of the MCI Tariff that obligates Defendant MCI to provide any of the services that Plaintiff has enumerated above. To have a contractual obligation, there must first be a source for that contractual obligation. Here, Plaintiff has not shown the source of Defendant’s alleged contractual obligation to provide Plaintiff with any of the above services. Plaintiff also offers parol evidence that when Defendant and Plaintiff entered into the SCA, Defendant knew that Plaintiff was a reseller of telecommunications services, and that in order for the SCA to operate as contemplated by each party, Defendant would have to provide certain confirmation services. Plaintiff argues that by failing to provide the various services listed as breaches two through six above, Defendant MCI failed to provide “service(s)” as contemplated by the SCA, and, thus, is in breach of the SCA. Under New York law, parol evidence is not admissible where “a contract is clear on its face and is sufficient alone to divine the intent of the parties.” Namad v. Salomon, Inc., 74 N.Y.2d 751, 545 N.Y.S.2d 79, 80, 543 N.E.2d 722, 723 (1989). “[W]hen the obligations are not clearly stated — when they are ambiguous — the parol evidence rule does not prevent the introduction of extrinsic evidence to aid in the interpretation of the contract.” Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 27 (2d Cir.1988). Whether the provisions of a contract are ambiguous is a question of law. Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 27 (2d Cir.1988); Bruni v. County of Otsego, 192 A.D.2d 939, 596 N.Y.S.2d 888, 941 (1993). “A word or phrase is ambiguous when it is capable of more than a single meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Garza, 861 F.2d at 27 (citations omitted). Here, the Court finds that the phrase “MCI will provide to Customer, and Customer will receive from MCI, interstate serviced), intrastate service(s), and international service(s) pursuant to this Agreement and MCI’s tariffs governing such services,” is not ambiguous. In addition, the SCA then incorporates by reference the entire Tariff which is in the record and describes the scope of said services in great detail and the applicable rates thereto. The SCA is not ambiguous, but specifically provides that the services are pursuant to Tariff, unless modified below. Thus, parol evidence is not admissible to vary or expand the terms of the SCA and the Tariff. 1. The Filed Tariff Doctrine The Court’s above conclusions under New York law are consistent with the result reached by applying the Filed Tariff Doctrine under federal law. Defendant MCI is obligated to provide Plaintiff Intex/Delaware only with those services that are part of the MCI Tariff, or are among the “following terms” that are listed in the SCA. All other claims are barred by the Filed Tariff Doctrine. Under the Communications Act of 1934, all telecommunications carriers are required to file with the FCC a schedule of their charges for various telecommunications services. 47 U.S.C. § 203(a). MCI Tariff FCC No. 1 (the “MCI Tariff” or the “Tariff”) is a schedule of charges for certain telecommunications services filed by Defendant MCI with the FCC. The filed tariff is a matter of public knowledge, 47 U.S.C. § 203(a), and the customer is presumed to know the filed rate. MCI Telecommunications Corp. v. The Best Telephone Co., Inc., No. 93-1581, slip op. at 14, — F.Supp.-,- [1994 WL 842913] (S.D.Fla. April 26, 1994). The Filed Tariff Doctrine is an accepted rule of law in this circuit. See American Transport Lines, Inc. v. Wrves, 985 F.2d 1065 (11th Cir.1993); Taffet v. Southern Co., 967 F.2d 1483, 1487 (11th Cir.1992). The Filed Tariff Doctrine, as applied in this context, holds that where a telecommunications provider files a tariff with the FCC, then that provider cannot be liable for any representations contrary to the filed tariff. See Id. For example, since MCI has a filed tariff, MCI cannot be liable for telling a customer that it will receive a rate different than the filed rate. The Filed Tariff Doctrine promotes adherence to the statutory scheme developed under the Communications Act of 1934. MCI Telecommunications Corp. v. The Best Telephone Co., Inc., No. 93-1581, — F.Supp.-(S.D.Fla. April 26, 1994). The Supreme Court explains that “rate filing was Congress’s chosen means of preventing unreasonableness and discrimination in charges.... The duty to file rates with the Commission, and the obligation to charge only those rates, have always been considered essential to preventing price discrimination and stabilizing rates.” MCI Telecommunications v. American Tel. & Tel., — U.S. -, -, 114 S.Ct. 2223, 2231, 129 L.Ed.2d 182 (1994). Application of the Filed Tariff Doctrine promotes the Congressional statutory scheme for preventing price discrimination. This case is similar to the recent decision in MCI Telecommunications Corp. v. The Best Telephone Co., Inc., No. 93-1581, — F.Supp. - (S.D.Fla. April 26, 1994). In Best Telephone, the plaintiff, MCI, sued the defendant, Best Telephone, “to recover unpaid charges for telecommunications services provided by MCI under the terms and conditions of MCI Tariff FCC No. 1....” Best Telephone, slip op. at 1, at-. Best Telephone asserted the affirmative defenses of unclean hands, accord and satisfaction, waiver and estoppel and breach of the Tariff. The court in Best Telephone granted summary judgment to MCI and found that the Filed Tariff Doctrine barred the defendant’s affirmative defenses, as well as the defendant’s attempt to assert a counterclaim. Best Telephone, slip op. at 14-17, at-. In reaching its conclusion, the Best Telephone court stated that “[i]t is well established in this Circuit that the Filed Tariff Doctrine precludes defenses available to a defendant in a standard contract dispute.” Best Telephone, slip op. at 10-11, at-. This Court agrees. Here, Plaintiff Intex/Delaware owes Defendant MCI for telecommunication services that Defendant provided to Plaintiff. Plaintiff Intex/Delaware sued Defendant MCI first for Defendant’s alleged failure to provide certain services. Defendant MCI counterclaimed for charges allegedly due under the MCI Tariff. In Best Telephone, the plaintiff argued that it should not have to pay the tariff rates to MCI because MCI failed to do certain things. Likewise, the basis for Plaintiffs claim is that Defendant did not perform certain contractual services, and, thus, Defendant owes Plaintiff money damages that meet and surpass the amount that Plaintiff owes Defendant for the telecommunications services provided by Defendant under the MCI Tariff. Plaintiffs affirmative claims here are similar to the Defendant’s affirmative defenses in Best Telephone. Both the defendant in Best Telephone and Plaintiff Intex/Delaware claim that they should not have to pay for telecommunications services provided by MCI because MCI failed to provide something. In this action, that “something” is services that are not a part of either the MCI Tariff or the SCA. Absent an obligation in MCI’s Tariff, or in this case the SCA, any claims that Defendant MCI failed to provide services are barred by the Filed Tariff Doctrine. Here, Plaintiffs claims for additional services, not provided for in the SCA or the Tariff, are barred by the Filed Tariff Doctrine. In short, under the Filed Tariff Doctrine, it is the Tariff, not the representations of the carrier’s employees that control. Maislin Indus., U.S. v. Primary Steel, Inc., 497 U.S. 116, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990). Representations made or duties assumed outside the Tariff are not enforceable as a matter of federal law. See, e.g., MCI Telecommunications Corp. v. Best Telephone Co., Inc., No. 93-1581, — F.Supp. - (S.D.Fla. April 26, 1994); Marco Supply Co. v. AT & T Communications, Inc., 875 F.2d 434, 435-36 (4th Cir.1989). The Eleventh Circuit has held that the doctrine requires that the tariffed rates “must be charged and paid regardless of mistake, inadvertence or contrary intention of the parties.” American Transp. Lines, Inc. v. Wrves, 985 F.2d 1065, 1067 (11th Cir.1993) (quoting Gilbert Imported Hardwoods, Inc. v. 245 Packages of Guatambu Squares, More or Less, 508 F.2d 1116, 1121 (5th Cir.1975)) Under the Filed Tariff Doctrine, even claims for fraud or intentional misquotation of rates have been rejected. See, e.g., Consolidated Freightways Corp. v. Terry Tuck, Inc., 612 F.2d 465, 466 (9th Cir.) cert. denied, 447 U.S. 907, 100 S.Ct. 2990, 64 L.Ed.2d 856 (1980). Plaintiff contends that the Filed Tariff Doctrine applies to only a carrier’s oral promises and misrepresentations about rates and not about oral promises about additional services to be provided by the carrier. This narrow interpretation of the Filed Tariff Doctrine is illogical, especially under the facts of this case. Plaintiff does not allege that it agreed to pay additional fees or increased rates for the so called additional services Plaintiff contends MCI orally agreed to provide. Thus, what Plaintiff, in effect, is seeking is more services than provided for in the tariff, or the SCA, but at the tariff rate. Such a result would circumvent the purpose of the tariff to set a published fixed rate for published fixed services. Under Plaintiffs theory, Plaintiff could avoid the- Filed Tariff Doctrine, not by receiving a reduced rate, but by receiving more services for the same fixed rate. Additionally, to the extent that Plaintiff claims that these services allegedly to be provided by Defendant MCI are in addition to the SCA, Plaintiffs allegations fail for lack of consideration. The record is devoid of any showing that any of the services claimed by Plaintiff are supported by consideration. The only obligation undertaken by Plaintiff is to pay Defendant for services pursuant to the tariff rates. Even without the Filed Tariff Doctrine, there is no showing of any additional consideration to support any non-SCA agreement between Defendant MCI and Plaintiff Intex/Delaware. The Court GRANTS Defendant MCI partial summary judgment on Plaintiffs breach of contract claims itemized in numbers two through six above. In effect, Plaintiff may pursue breach of contract claims for MCI’s contractual obligations under the SCA and the MCI Tariff, but not for breach of any alleged oral promises outside the SCA and the MCI Tariff. 2. Defendant’s Alleged Unilateral Termination of the SCA Defendant MCI also seeks summary judgment on Plaintiffs claim that MCI improperly terminated the SCA. Defendant MCI suggests this allegation is contrary to Plaintiffs earlier pleadings, where Plaintiff stated that “INTEX and MCI reached an agreement to terminate the SCA in late January and early February 1992.” Plaintiffs First Complaint, at ¶ 25, 26. Defendant contends that Plaintiff should be estopped from pleading a different position regarding the termination of the SCA than was pleaded in Plaintiffs original Complaint. Judicial estoppel “‘is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.’ ” McKinnon v. Blue Cross and Blue Shield of Alabama, 935 F.2d 1187, 1192 (11th Cir.1991) (quoting American Nat. Bank v. Federal Deposit Ins. Corp., 710 F.2d 1528, 1536 (11th Cir.1983)). The Court finds that judicial estoppel as a matter of law is not warranted by the facts in this case, especially since Defendant MCI’s Answer originally denied Plaintiffs allegation of mutual termination. Plaintiff made an initial mistake in its notice pleading, and subsequently amended its Complaint. While not indicative of careful pleading, Plaintiffs misstep does not warrant application of judicial estoppel as a matter of law. Defendant MCI also argues that it could terminate the SCA at any time for Plaintiff Intex/Delaware’s failure to pay, and that as of June, 1992 Plaintiff failed to pay the balance due on Plaintiffs account. Plaintiff counters that in December, 1991 Defendant MCI informed Mr Dejoria, Intex/Delaware’s principal shareholder, that the SCA would be terminated. As of December, 1991, Plaintiff also had two letters of credit, each in the amount of $500,000 securing Plaintiffs accounts receivable with Defendant MCI. After being informed that the SCA would be terminated, Plaintiff states that it requested time to move its customers from the MCI network to another telecommunications net>work. The Court finds that jury issues exist regarding whether Defendant MCI improperly or correctly terminated the SCA. Therefore, the Court finds that on the current record summary judgment is not proper. D. Count Five: Plaintiff’s Claims for Breach of Implied Covenant of Good Faith and Fair Dealing Against Defendant In Count Five of its Complaint, Plaintiff alleges that Defendant breached the implied covenant of good faith and fair dealing. Defendant moves for summary judgment on Count Five. “[U]nder New York law, a duty of good faith and fair dealing is implicit in every contract, but breach of that duty is merely a breach of the underlying contract.” Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992); Geler v. National Westminster Bank USA, 770 F.Supp. 210, 215 (S.D.N.Y.1991). Defendants contend that since Plaintiff cannot show a breach in the underlying contract, Plaintiff cannot state a claim for breach of Defendant MCI’s duty of good faith and fair dealing. The Court, however, found above that triable issues remain as to whether Defendant MCI failed to perform certain services provided for in the terms of the SCA, which incorporated the Tariff. If Defendant breached the SCA or the Tariff, then Plaintiff would have the underlying breach of contract necessary to support its breach of implied covenant of good faith and fair dealing claim. Since the Court finds that genuine issues of material fact exist on the underlying contractual breach, Defendant MCI has not carried its burden to show it is entitled to summary judgment on Plaintiffs breach of implied warranty. Taking all evidence and factual inferences in the light most favorable to the non-moving party, the Court finds that, on the record to date, entry of summary judgment is not proper on Plaintiffs claim that Defendant MCI breached its duty of good faith and fair dealing. Therefore, the Court DENIES Defendant MCI’s Motion for Summary Judgment. V. DEFENDANT MCI’S MOTION FOR SUMMARY JUDGMENT ON COUNT SIX OF PLAINTIFF INTEX/DELA-WARE’S COMPLAINT In Count Six of its Complaint, Plaintiff Intex/Delaware alleges that Defendant MCI tortiously interfered with Plaintiffs contractual and business relations. Defendant moves for summary judgment on Count Six. In Georgia, a plaintiff claiming tortious interference with contractual or business relations must show that the defendant (1) acted improperly and without privilege, (2) acted purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused the plaintiff to suffer some financial injury. St. Mary’s Hosp. v. Radiology Professional Corp., 205 Ga.App. 121, 124, 421 S.E.2d 731 (1992). Summary judgment is appropriate where the defendant demonstrates the lack of any one of the elements. See Id. Here, Defendant contends that there is no evidence in the record that Defendant “induced a third party or parties not to enter into or to continue a business relationship” with Plaintiff. In response, Plaintiff offers the affidavit of Steven Talsness, an employee of Sun State Capital Management, Inc., one of Intex/Delaware’s former customers. In his affidavit, Talsness states that Talsness received a phone call from an individual who identified himself as a MCI employee. Talsness states that the MCI employee told Talsness “that INTEX was about to go out of business,” and that “if Sun State wished to maintain its 800 telephone number, it would be necessary for Sun State to switch its long-distance service over to a carrier other than INTEX.” Talsness states that, based upon the representations from the phone-caller, he switched his service to MCI. Defendant MCI objects to the Talsness affidavit as inadmissible hearsay. Plaintiff contends that the Court must consider inadmissible hearsay when offered by the non-movant to a motion for summary judgment. To support its position, Plaintiff quotes the recent Eleventh Circuit opinion in Church of Scientology v. City of Clearwater, 2 F.3d 1514, 1531 (11th Cir.1993), where the Eleventh Circuit wrote “[e]ven if [the newspaper articles] would have been inadmissible at trial (and we do not hold that they would have been), such materials were appropriately submitted by the non-moving party in opposition to the motion for summary judgment.” Scientology, 2 F.3d at 1530. From the Eleventh Circuit’s comment on the appropriateness of considering newspaper articles, Plaintiff leaps to its position that hearsay evidence is sufficient to oppose successfully an otherwise proper motion for summary judgment. Plaintiff’s position is not supported by the law of this circuit or any other circuit. In Scientology, the Eleventh Circuit was addressing the form that evidence had to take when presented by the non-movant in opposition to a motion for summary judgment. The Eleventh Circuit was not stating that inadmissible hearsay was admissible to defeat summary judgment, thereby causing a trial that would result in a Rule 50 judgment of law ruling based upon the lack of admissible evidence. While only implicit in the Scientology opinion, other circuits have expressly explained the distinction. The Seventh Circuit recently explained that evidence presented by a non-movant need not be in an admissible form, but the substance of the evidence must be admissible, as follows: “The evidence need not be in admissible form; affidavits are ordinarily not admissible evidence at trial. But it must