Modern Gaming, Inc. v. Sockeye Software, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-01583-PAB-STV
MODERN GAMING, INC.,
Plaintiff,
v.
SOCKEYE SOFTWARE, LLC, and
EMPIRE TECHNOLOGICAL GROUP, LTC.,
Defendants.
ORDER
This matter comes before the Court on Sockeye Software’s Motion to Dismiss
Modern’s Conspiracy Claim [Docket No. 143] and Sockeye Software Inc.’s Amended
Motion for Summary Judgment on Modern Gaming Inc.’s Breach of Contract and
Conspiracy Claims [Docket No. 180]. 1 Plaintiff Modern Gaming, Inc. (“Modern”) filed
responses to the motion to dismiss, Docket No. 174, and to the motion for summary
judgment. Docket No. 210. Sockeye filed a reply on the motion for summary judgment.
Docket No. 233. 2 The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
1 On May 1, 2025, Sockeye filed a notice stating that it was filing an amended
motion for summary judgment “with the consent of the opposing parties” because
Sockeye had “inadvertently filed a prior version of the motion and apologizes for the
error.” Docket No. 181 at 1. Modern’s response appears to treat Docket No. 180 as the
operative motion for summary judgment. The Court will therefore deny as moot
Sockeye’s initial motion for summary judgment at Docket No. 157.
2 The certificate of conferral for the motion to dismiss states that “Empire takes
does not oppose this motion.” Docket No. 143 at 1. It is not clear to the Court whether
Sockeye meant to say that defendant Empire Technological Group Ltd. (“Empire”)
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I. UNDISPUTED FACTS
A. The Parties and the Relevant Agreements
Modern is a Louisiana corporation that manufactures and distributes electronic
gaming hardware and devices. Docket No. 180 at 2, ¶ 1. Sockeye is a Colorado limited
liability company that develops and licenses software in the field of electronic gaming.
Id., ¶ 2. Sockeye owns 16 bingo-mathematical patents (the “patents”) and uses the
patents to create video casino games that meet Class II regulatory requirements, but
with outcome probabilities similar to a Class III game; this creates a tax advantage for
some casinos. Id. On June 13, 2019, Sockeye suggested that the parties enter into a
distribution agreement which would have granted Modern a license to use Sockeye’s
games. Id. at 3, ¶ 4. Jason deGrandmaison, Modern’s representative, rejected
Sockeye’s proposed distribution agreement and instead indicated that Modern wanted
to enter into “a platform license agreement.” Id.3 On December 1, 2019, Sockeye and
Modern executed a License Agreement. Id., ¶ 5. 4 The License Agreement granted
“takes no position” on the motion or that Empire “does not oppose this motion.” In any
event, the Court notes that Empire did not file any briefing regarding this motion. The
certificate of conferral for the motion for summary judgment states that “counsel for
Sockeye conferred with counsels [sic] for the other parties. Modern opposes this
motion.” Docket No. 180 at 1. Although this certificate does not actually state Empire’s
position on the motion, the Court notes that Empire did not file any briefing regarding
this motion.
3 Modern disputes this fact, stating that “Modern did not ‘insist’ on a ‘platform
license agreement.’ Modern did not use the version of the License Agreement Sockeye
proposed because it required Sockeye to be licensed, and the parties were concerned
Sockeye would be unable to obtain licensure.” Docket No. 210 at 3, ¶ 4. The Court
finds the question of whether Modern “insisted” on another agreement or just asked for
one to be a matter of semantics that is not material.
4 Modern denies this fact in part, stating that “Sockeye and Modern executed the
License Agreement on December 3, 2019.” Docket No. 210 at 3, ¶ 5. While it is difficult
to read the handwritten dates on the agreement, the distinction between December 1
and December 3 is immaterial for purposes of this order. The Court deems this fact to
be admitted.
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Modern a “nontransferable, exclusive copyright license to install GDS onto Gaming
Units utilizing the PDS” as well as “a nontransferable, exclusive copyright license to
copy GDS for inclusion in [Modern’s] Gaming Applications.” Id.
Under the License Agreement, the acronym “PDS” is defined as “the software
developed by [Sockeye] that is utilized in developing Gaming Device Software. This
includes features and functionality described in the attached Addendum A, but does not
include the game specific features and functionality that may change from Gaming
Application to Gaming Application.” Id., ¶ 6 (emphasis omitted). 5 “Gaming Device
Software” or “GDS” means the “software program that is developed using the [PDS] and
is compatible with and interoperates with the PDS and that is approved for commercial
release by a gaming laboratory and is required for proper operation of a Gaming
Application.” Id., ¶ 7. 6 “Gaming Application” means “any application that can be used in
the commercial or charitable Gaming Industry . . . includ[ing] but not limited to . . . Video
Poker Machine.” Id. at 4, ¶ 8. 7 “Game Software” or “GS” refers to the math, graphics,
5 Modern denies this fact in part, stating that “[o]ther provisions inform the
meaning of PDS. (See id. §§ 1.5, 1.6, 1.18, 2.3, 6.2, 8.2, 10.1, 12.1, 13.2.).” Docket
No. 210 at 3, ¶ 6. The Court’s practice standards require that “[a]ny denial shall be
accompanied by a brief factual explanation of the reason(s) for the denial and a specific
reference to material in the record supporting the denial.” See Practice Standards (Civil
cases), Chief Judge Philip A. Brimmer, § III.F.3.b.iv. The Court finds that Modern has
failed to provide sufficient factual explanation of how other provisions of the contract
inform the meaning of PDS. Moreover, from a review of the contract provisions that
Modern cites, the Court is unable to discern how they inform the definition of PDS
provided by the contract. The Court deems this fact to be admitted.
6 Modern denies this fact in part, stating that “[o]ther provisions inform the
meaning of Gaming Device Software (“GDS”). (See id. §§ 1.4, 1.7, 1.12, 1.18, 2.3, 2.4,
2.5, 2.6, 6.2, 12.1, 13.2.).” Docket No. 210 at 3, ¶ 7. For the same reasons discussed
in footnote 5, the Court deems this fact to be admitted.
7 Modern denies this fact in part, stating that “[o]ther provisions inform the
meaning of Gaming Application. (See id. §§ 1.4, 1.5, 1.7, 1.11, 1.13, 1.15, 6.2.).”
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sound and game rules incorporated in a Gaming Application. Id., ¶ 9. 8 “Game Unit”
means “any electronic or mechanical Gaming Application that utilizes the GDS and is
sold or distributed by the Licensee.” Game Units may be either Leased or Sold. Id.,
¶ 10. 9
Once Modern installed the GDS into a game unit, and either leased or sold it, the
License Agreement required Modern to pay Sockeye an IP license fee of $9.00 per day
per game unit per location. Id., ¶ 12. The License Agreement does not reference Big
Bear Poker. Id., ¶ 13.
In December 2, 2021, Sockeye began negotiations with defendant Empire. Id. at
5, ¶ 17. 10 On February 8, 2022, Sockeye and Empire executed a distributorship and
licensing agreement (the “Empire agreement”). Id., ¶ 18. 11
Docket No. 210 at 3, ¶ 8. For the same reasons discussed in footnote 5, the Court
deems this fact to be admitted.
8 Modern denies this fact in part, stating that “[o]ther provisions inform the
meaning of Game Software (“GS”). (See id. §§ 1.18, 1.28, 7.5, 10.1, 12.1, 12.5, 13.2).”
Docket No. 210 at 3, ¶ 9. For the same reasons discussed in footnote 5, the Court
deems this fact to be admitted.
9 Modern denies this fact in part, stating that “[o]ther provisions inform the
meaning of Game Unit. See License Agreement §§ 1.8, 1.9, 1.12, 1.16, 1.18, 1.28, 2.5,
2.8, 2.9, 3, 5.3(c), 6.2, 8.2, 10.1, 13.2, Ex. 4).” Docket No. 210 at 3, ¶ 10. For the same
reasons discussed in footnote 5, the Court deems this fact to be admitted
10 Modern denies this fact, stating that “Sockeye and [Empire] began negotiations
before December 2, 2021.” Docket No. 210 at 4, ¶ 19. Modern cites evidence that
Sockeye and Empire had discussions about a potential business relationship earlier.
Id.; see also Docket Nos. 210-7, 210-8. The Court finds that whether those earlier
discussions also constituted “negotiations” to be a matter of semantics and that, in any
event, exactly when the Sockeye-Empire discussions began is immaterial for the
purposes of this order. The Court deems this fact to be admitted.
11 Modern denies this fact in part, stating that “Empire executed the Empire
Agreement on February 9, 2022.” Docket No. 210 at 4, ¶ 18. According to the
agreement, a Sockeye executive signed the agreement on February 8, 2022, and an
Empire executive signed it on February 9, 2022. See Docket No. 180-8 at 22. In any
event, the Court finds that the distinction between the two dates is immaterial. The
Court deems this fact to be admitted.
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Sockeye terminated the License Agreement with Modern on March 14, 2022,
stating that it wished to “evolve [its] partnership with a new company.” Docket No. 210
at 8, ¶ 20. 12
B. Sockeye and Modern’s Conduct During the Time their Contract was
in Effect
After signing the License Agreement with Modern, Sockeye sent Modern Class II
Big Bear Poker software to test, to demonstrate to casinos, and for installing in gaming
cabinets. Id. at 7, ¶ 6. 13 Modern then gave Sockeye feedback on the software, and
Sockeye implemented those changes. Id. In 2020, Modern developed marketing
materials for Big Bear Poker both for its own use and Sockeye’s use. Id., ¶ 7. 14 On
May 6, 2021, BMM Test Labs approved Big Bear Poker’s software on Modern’s dual
screen cabinet. Id., ¶ 11. 15 In early 2022, Modern installed Big Bear Poker units at the
12 Sockeye disputes this fact in part, stating that, “[o]n or about February 22,
2022, Sockeye notified Modern of the Empire License and said that it would continue to
work with Empire on Modern’s behalf. Modern became upset, telling Sockeye that it
wanted to be bought out of the Agreement. Sockeye agreed to this. . . . Sockeye
formally sent the notice of termination on March 14, 2022.” Docket No. 233 at 4-5, ¶ 20.
The Court finds this to be nonresponsive to Modern’s asserted fact regarding what
Sockeye said to Modern on March 14, 2022 when Sockeye terminated the agreement.
The Court deems this fact to be admitted.
13 Sockeye disputes this fact in part, stating that, “[d]espite the PDS being
tendered ‘as is,’ Modern ‘require[d]’ Sockeye conform the PDS to a dual-screened
cabinet. . . . Modern’s citations do not all concern Big Bear Poker.” Docket No. 233 at
3, ¶ 6. The Court finds this to be nonresponsive to Modern’s asserted fact. The Court
deems this fact to be admitted.
14 Sockeye disputes this fact in part, stating that “Modern cites to ‘a very rough
draft of the flyer graphic.’ (‘[A]ll Sockeye info should be replaced with Modern.’). None
of this changes the scope of the Agreement itself.” Docket No. 233 at 3, ¶ 7 (internal
citations omitted). The Court deems this to be nonresponsive to Modern’s asserted
fact. Sockeye’s response also includes legal argument regarding the implications of the
fact. The Court deems this fact to be admitted.
15 Sockeye states that this fact is “[a]dmitted in part. The May 6 approval referred
to an updated version.” Docket No. 233 at 4, ¶ 11. It is not clear to the Court what
distinction Sockeye is attempting to draw. The Court deems this fact to be admitted.
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testing lab for the WinStar’s tribe, with technical support from Sockeye. Id. at 8, ¶ 14. 16
Sockeye told Empire that Modern was pursuing Big Bear Poker placements at Poarch
Creek. Id., ¶ 17.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
16 Sockeye disputes this fact in part, stating that “Modern sent the incorrect
version of Big Bear Poker.” Docket No. 233 at 4, ¶ 14. The Court finds this
nonresponsive to Modern’s asserted fact that Sockeye supported Modern in installing
BBP at the WinStar testing lab. The Court deems this fact to be admitted.
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nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
III. ANALYSIS
C. Motion for Summary Judgment
Sockeye moves for summary judgment on each of Modern’s three claims against
Sockeye: breach of contract, promissory estoppel, and civil conspiracy. Docket No. 180
at 2.
1. 	Breach of Contract
Modern alleges that Sockeye breached the License Agreement when it
terminated the agreement on March 14, 2022. Docket No. 118 at 17, ¶¶ 77-81.
Sockeye argues that it is entitled to summary judgment on this claim because Modern
cannot prove an essential element of the claim – damages. Docket No. 180 at 7.
Specifically, Sockeye asserts that the License Agreement did not provide Modern with
the right to distribute Big Bear Poker and that therefore Modern suffered no damages
when Sockeye provided the Big Bear Poker distribution rights to Empire. Id. at 7-8.
Resolution of this issue depends upon an interpretation of the License
Agreement. Contract interpretation is a question of law to be resolved by the court.
See, e.g., Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068,
1080 (10th Cir. 2001) (“In general, the interpretation of a contract is a question of law.”)
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(citing Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1313 (Colo. 1984)).
Colorado courts 17 apply traditional principles of contract interpretation. Cotter Corp. v.
Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 819 (Colo. 2004); Essex Ins. Co. v.
Vincent, 52 F.3d 894, 896 (10th Cir. 1995). Courts are to give effect to the intent of the
parties and to enforce the contract’s plain language unless it is ambiguous. Hoang v.
Assurance Co. of Am., 149 P.3d 798, 801 (Colo. 2007). A “court should interpret a
contract ‘in its entirety with the end in view of seeking to harmonize and to give effect to
all provisions so that none will be rendered meaningless.’” Copper Mountain, Inc. v.
Industrial Systems, Inc., 208 P.3d 692, 697 (Colo. 2009). If the language of the contract
is unambiguous, a court will enforce the plain meaning of the contract’s terms. Est. of
Christensen v. Vail Mountain View Residences Phase II, LLC, 2025 WL 869636, at *3
(Colo. App. Mar. 20, 2025).
Both parties offer reasons why they believe the language of the contract supports
their respective positions. Docket No. 180 at 7-10; Docket No. 210 at 9-14. However,
both parties also argue that, in the event that the Court finds there to be ambiguities in
the contract, extrinsic evidence also supports their views. Docket No. 180 at 10-11;
Docket No. 210 at 14-15.
Sockeye’s motion for summary judgment on Modern’s breach of contract claim
hinges on its argument that the License Agreement does not grant Modern a license to
distribute Big Bear Poker. Docket No. 180 at 7. The licensing section in the agreement
17 Modern and Sockeye do not dispute that Colorado law governs Modern’s
claims against Sockeye. Moreover, the License Agreement states that the agreement
and “performance hereunder” is governed by Colorado law. See Docket No. 210-4 at
17, § 13.10.
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states that “Licensor hereby grants to Licensee and its Authorized Users a license to
use the PDS as indicated in this Agreement and subject to the terms of this Agreement.”
Docket No. 210-4 at 5, § 2.1. The Licensor is Sockeye, whereas the Licensee is
Modern. Id. at 2. That section also states that Modern may “redistribute GDS solely as
incorporated and used with the PDS to Gaming Venue Operators . . . for commercial
purposes.” Id. at 5, § 2.3(b). PDS is the “Platform Development Software” created by
Sockeye that is “utilized in developing Gaming Device Software.” Id. at 2, § 1.4. GDS,
“interoperates” with the PDS and together the GDS and PDS “is approved for
commercial release by a gaming laboratory.” Id. at 3, § 1.5. Although the Licensing
agreement contains definitions for “Game Unit,” “Gaming Application,” and “Game
Software,” id., §§ 1.7, 1.10, 1.11, each of these terms defines a game that consists of
GDS that is interoperable with PDS. Thus, the Court interprets the License Agreement
to grant a license to Modern to use Sockeye’s PDS and GDS for Sockeye’s games.
Sockeye, however, argues that, while the “Agreement granted Modern an
exclusive license only to use the PDS and, by extension, the GDS,” the games
themselves are not part of the PDS or the GDS. Docket No. 180 at 9 Sockeye instead
claims that “the Agreement explicitly excludes Gaming Applications from the definition
of PDS.” Id. However, Sockeye provides no textual support for its argument other than
referring to the definition of PDS, which states that PDS “does not include the game
specific features and functionality that may change from Gaming Application to Gaming
Application.” Docket No. 210-4 at 2-3, § 1.4. The fact that the definition of PDS
excludes the game specific features that vary from game to game says nothing about
GDS. Pursuant to the License Agreement, GDS varies game to game and it is that
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software, combined with the PDS, that is tested by a gaming laboratory for approval for
commercial release. Docket No. 180 at 3, ¶ 7. While Sockeye attempts to distinguish
between GDS and the term “Gaming Application,” which is defined as “any application
that can be used in the commercial . . . Gaming Industry to place a wager,” Docket No.
210-4 at 3, § 1.10, there is no such distinction in the License Agreement. A Gaming
Application is a combination of the PDS and a game-specific GDS. 18 The License
Agreement, as Sockeye concedes, grants Modern a license to use both PDS and
GDS. 19 Moreover, the compensation section of the License Agreement ties the license
fee to the number of Gaming Units placed by Modern in various locations, reinforcing
the fact that Modern’s license includes GDS. Id. at 4, 7, §§ 1.24, 3.
The fact that the License Agreement grants Modern a license to place gaming
units in casinos and other locations does not answer the question of whether the
License Agreement grants Modern a license to place Big Bear Poker in such locations.
In fact, the phrase “Big Bear Poker” does not appear anywhere in the License
18 Sockeye argues that the negotiations between Sockeye and Modern before
signing the License Agreement “lend support” to Sockeye’s interpretation of the License
Agreement not to include a license to use Gaming Applications. Docket No. 180 at 10.
However, because the Court finds no ambiguity in the terms that grant a license to
Modern, the Court will not consider this argument.
19 Sockeye suggests that Modern only paid $100 for its exclusive right to use the
PDS, which is inconsistent with an agreement to license Sockeye’s gaming applications.
Docket No. 180 at 1. However, the language that Sockeye relies on is simply a
standard consideration clause. On the first page of the License Agreement, the
agreement states that, “in consideration of the foregoing premises, the mutual
covenants of the parties contained herein, $100 paid in had by Licensee to Licensor,
and for other good and valuable consideration, . . . the parties agree as follows.”
Docket No. 210-4 at 2. The heart of the compensation provisions is that Modern agrees
to pay to Sockeye an “IP License Fee” of $9.00 per day per Gaming Unit per location on
a quarterly basis. Docket No. 210-4 at 4, 7, §§ 1.24, 3. Contrary to Sockeye’s
argument, the compensation provisions of the Agreement are consistent with Sockeye
having granted Modern a license to place Sockeye gaming units in casinos.
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Agreement. Docket No. 180 at 4, ¶ 13. To explain this silence in the License
Agreement, both sides cite extrinsic evidence.
Sockeye’s argument regarding a license for Big Bear Poker focuses on Modern’s
rejection of an initial contract proposed by Sockeye. Docket No. 180 at 10. However,
the emails discussing the June 13, 2019 contract proposed by Sockeye do not mention
Big Bear Poker, and this silence is similarly ambiguous. See Docket No. 180-4 at 2-5.
Sockeye also relies on the agreement between Sockeye and Empire. Id. at 10-
11. This agreement was signed on February 8, 2022. Id. at 5, ¶ 18. The Court finds
that the Empire agreement is not useful in interpreting the contract between Sockeye
and Modern. The Empire agreement involves different parties and was executed over
two years after the Sockeye-Modern License Agreement. More importantly, it was
executed at a time when both Sockeye and Empire had an incentive to distinguish their
agreement from the Sockeye-Modern License Agreement, perhaps with an awareness
of possible legal issues. As such, the Court finds it is of little value in identifying the
intent of Sockeye and Modern at the time they executed the License Agreement.
Regarding extrinsic evidence, Modern cites evidence that, after the License
Agreement was signed, Sockeye was aware of and actively supported Modern in
distributing Big Bear Poker to prospective clients. Docket No. 210 at 14. Modern
prepared marketing materials about Big Bear Poker for its own use and for Sockeye’s
use. Id. at 7, ¶ 7. Sockeye provided technical support for Modern in setting up Big Bear
Poker games for the testing lab at the Winstar casino. Id. at 8, ¶ 14. Sockeye informed
Empire that Modern was pursuing Big Bear Poker placements at Poarch Creek. Id.,
¶ 17.
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“A contract is ambiguous if it is ‘fairly susceptible’ to more than one
interpretation.” SolidFX, LLC v. Jeppesen Sanderson, Inc., 935 F. Supp. 2d 1069, 1086
(D. Colo. 2013) (applying Colorado law). Although the Court interprets the License
Agreement to include Sockeye’s PDS and GDS, the agreement is silent as to which
games Modern has a license to use. The Court cannot resolve the critical contract
interpretation issues raised by the parties based on the plain language of the License
Agreement’s terms, but instead will look to extrinsic evidence in interpreting the
contract. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Fed. Ins. Co., 213 F.
Supp. 3d 1333, 1340 (D. Colo. 2016), aff'd, 734 F. App'x 586 (10th Cir. 2018). In
undertaking this examination of extrinsic evidence, the Court keeps in mind the primary
goal of contract interpretation, which is “to determine and give effect to the intent of the
parties.” Ad Two, Inc. v. City & Cnty. of Denver ex rel. Manager of Aviation, 9 P.3d 373,
376 (Colo. 2000).
“[T]he subsequent conduct of parties frequently makes plain the intent with which
a previous act was performed.” Gunderson v. Weidner Holdings, LLC, 2023 WL
12058983, at *3 (Colo. App. June 8, 2023); see also CATV Servs., Inc. v. Arguss
Commc'ns, Inc., 194 F. App'x 547, 554 (10th Cir. 2006) (applying Colorado law and
noting that the course of performance could be relevant in interpreting a contract term).
Moreover, “Colorado law permits a written contract to be modified by the parties’
course of performance.” La Plata Open Space Conservancy v. Baker, 2025 WL
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274558, at *4 (Colo. App. Jan. 23, 2025) (citing Woods v. Monticello Dev. Co., 656 P.2d
1324, 1327 (Colo. App. 1982)). 20
The Court finds that the course of performance by Modern and Sockeye after the
execution of the License Agreement indicates that both parties believed that Modern
had the right to place Big Bear Poker in casinos. Thus, the Court will interpret the
License Agreement’s references to PDS and GDS to include a license for Modern to
use Big Bear Poker. In the alternative, even if the course of conduct does not resolve
the contract interpretation issue, the Court finds that the course of performance, which
involved collaborative efforts by Modern and Sockeye to place Big Bear Poker, was so
pervasive that, to a reasonable person, the actions spoke louder than the words of the
anti-waiver clause. Therefore, the provision in the contract which provides Modern with
a license to “install GDS onto Gaming Units utilizing the PDS,” Docket No. 180 at 3, ¶ 5,
includes a license for Big Bear Poker. The Court finds that Sockeye’s basis for seeking
summary judgment on the breach of contract claim – that Modern never had the right to
distribute Big Bear Poker – fails. The Court will therefore deny this portion of Sockeye’s
motion for summary judgment.
2. 	Promissory Estoppel
Sockeye seeks summary judgment on Modern’s claim for promissory estoppel.
Docket No. 180 at 11-12. In response, Modern states that it “agrees to dismiss that
20 Even when a contract contains an anti-waiver provision, as the License
Agreement does, see Docket No. 210-4 at 16, §§ 13.4, 13.5, the course of performance
may modify the agreement. See La Plata Open Space Conservancy, 2025 WL 274558,
at *4 (citing Woods, 656 P.2d at 1327). However, for a course of conduct to modify the
contract, the conduct must be “so pervasive that in the eyes of a reasonable [person] it
‘spoke louder than [the] word’ . . . of the ‘anti-waiver’ clause, which in effect counseled
against reliance on conduct indulging default.” Id.
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claim if the Court finds the License Agreement grants Modern the right to place
Sockeye’s Class II Big Bear Poker software. But if the Court disagrees, summary
judgment is not warranted on this claim.” Docket No. 210 at 2. The Court has now
found that the License Agreement granted Modern the right to distribute Big Bear Poker.
In light of the Court’s finding and Modern’s statement, the Court will dismiss with
prejudice Modern’s promissory estoppel claim.
3. 	Civil Conspiracy
Sockeye seeks summary judgment on Modern’s claim for civil conspiracy.
Docket No. 180 at 13-15. Sockeye’s first argument is that civil conspiracy is a derivative
cause of action and that, because Modern “has not asserted any underlying tort claim,
much less provided any evidence of a viable a tort claim against Sockeye,” the civil
conspiracy claim must fail. Id. at 13.
To establish a civil conspiracy claim, Modern must show 1) an object to be
accomplished, 2) an agreement by two or more persons on a course of action to
accomplish that object, 3) in furtherance of that course of action, one or more unlawful
acts which were performed to accomplish a lawful or unlawful goal, or one or more
lawful acts which were performed to accomplish an unlawful goal, and (4) damages to
the plaintiff as a proximate result. Fifth Third Bank v. Morales, No. 16-cv-01302-CMA-
STV, 2017 WL 6492108, at *6 (D. Colo. Dec. 19, 2017) (citing Magin v. DVCO Fuel
Sys., Inc., 981 P.2d 673 (Colo. App. 1999)).
A civil conspiracy claim is “derivative in nature.” Girardi v. Kovacs, 2017 WL
11931560, at *13 (Colo. App. Apr. 13, 2017) (citation omitted). A civil conspiracy claim
must therefore be “substantiated by an independent cause of action – the wrongful acts
alleged must establish an independent cause of action in order to sustain a cause of
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action for civil conspiracy arising from those same acts.” Id. Colorado law does not,
however, require that a defendant charged with civil conspiracy commit the underlying
tortious act. See AMG Nat'l Corp. v. Wright, No. 20-cv-02857-PAB-KAS, 2024 WL
1299100, at *8 (D. Colo. Feb. 13, 2024), report and recommendation adopted, 2024 WL
1436292 (D. Colo. Mar. 4, 2024). Modern’s civil conspiracy claim is predicated on a
meeting of the minds between Sockeye and Empire to accomplish the unlawful goals of
interfering with Modern’s existing and prospective contractual relationships. See Docket
No. 118 at 18-19, ¶¶ 90-91. As the Court has now dismissed Modern’s claims against
Empire for tortious interference, see Docket No. 254 at 22, there remains no underlying
wrong to support Modern’s civil conspiracy claim. 21 Modern’s civil conspiracy claim
21 Modern’s response, in a footnote, argues that it has sufficient evidence to
support viable tort claims against Sockeye for “intentional interference with contractual
and prospective business relationships.” Docket No. 210 at 16 n.6. It is not clear
whether Sockeye’s motion meant to argue that Modern’s civil conspiracy claim failed
solely for the lack of a tort claim against Sockeye or if it failed for lack of tort claims
against either Sockeye or Empire. There are issues with both parties’ arguments.
Sockeye appears to argue that, if the civil conspiracy claim relied only on underlying
tortious conduct by Sockeye, then Modern would need to asset a freestanding tort claim
in its complaint against Sockeye. See Docket No. 180 at 13. This argument fails,
however, as a freestanding tort claim is not required to support a civil conspiracy claim.
See Mighty Argo Cable Car, LLC v. Trivecta Cap. Grp., Inc., No. 21-cv-01106-RMR-
NRN, 2022 WL 4115690, at *4 (D. Colo. Sept. 9, 2022), report and recommendation
adopted, 2022 WL 8166234 (D. Colo. Sept. 23, 2022) (“Though a civil conspiracy claim
requires underlying tortious conduct, Plaintiff need not specifically plead the underlying
tortious conduct as a separate cause of action. So long as the factual allegations would
support a tort claim, the civil conspiracy claim can proceed.”); White River Vill., LLP v.
Fid. & Deposit Co. of Maryland, No. 08-cv-00248-REB-MEH, 2013 WL 6168853, at *6
(D. Colo. Nov. 25, 2013); Cavitat Med. Techs., Inc. v. Aetna, Inc., No. 04-cv-01849-
MSK-OES, 2006 WL 218018, at *5-6 (D. Colo. Jan. 27, 2006). Modern, meanwhile,
argues that it has evidence of tortious interference with contract against Sockeye. See
Docket No. 210 at 16 n.6. Under Colorado law, however, one party to a contract cannot
maintain a claim against another party to the contract for tortious interference with that
contract. See MDM Grp. Assocs., Inc. v. CX Reinsurance Co. Ltd., 165 P.3d 882, 886
(Colo. App. 2007).
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therefore fails, and the Court will grant Sockeye’s motion for summary judgment on this
claim.
D. Motion to Dismiss
Sockeye filed a motion to dismiss Modern’s civil conspiracy claim. Docket No.
143. The motion to dismiss makes the same arguments as the motion for summary
judgment. Compare Docket No. 143 at 6-10 with Docket No. 180 at 13-15. As the
Court has addressed these arguments in its ruling on the motion for summary judgment,
the Court denies as moot the motion to dismiss.
IV. CONCLUSION
It is therefore
ORDERED that Sockeye Software Inc.’s Motion for Summary Judgment on
Modern Gaming Inc.’s Breach of Contract and Conspiracy Claims [Docket No. 157] is
DENIED as moot. It is further
ORDERED that Sockeye Software Inc.’s Amended Motion for Summary
Judgment on Modern Gaming Inc.’s Breach of Contract and Conspiracy Claims [Docket
No. 180] is GRANTED in part and DENIED in part. It is further
ORDERED that Modern’s second claim for relief, which asserts a promissory
estoppel claim against Sockeye, is DISMISSED with prejudice. It is further
ORDERED that Modern’s third claim for relief, insofar as it asserts a civil
conspiracy claim against Sockeye, is DISMISSED with prejudice. It is further
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ORDERED that Sockeye Software’s Motion to Dismiss Modern’s Conspiracy
Claim [Docket No. 143] is DENIED as moot.
DATED January 13, 2026.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
______________	_ ___________
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