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April 23, 2003


The opinion of the court was delivered by: John W. Darrah, United States District Court Judge.


Plaintiff, Oblix, Inc. ("Oblix"), filed a complaint seeking enforcement of an arbitration agreement between it and Defendant, Felicia Ferguson Winiecki ("Winiecki"). Winiecki filed a counterclaims against Oblix. Oblix now moves for summary judgment and to dismiss pursuant to Federal Rule of Civil Procedure 56.

For the reasons that follow, Oblix's Motion for Summary Judgment and to Dismiss is denied.


Summary judgment is appropriate when there remains no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex Corp. V. Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving party on a motion for summary judgment is responsible for demonstrating to the court why there is no genuine issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to demonstrate through specific evidence that there remains a genuine issue of material fact and show that a rational jury could return a verdict in the non-moving party's favor. Celotex, 477 U.s. at 322-27; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgment, a court must view all inferences to be drawn from the facts in the light most favorable to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475 U.S. at 586. If the evidence is merely colorable or is not significantly probative or is no more than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.


The undisputed facts taken from the parties' Local Rule 56.1(a) & (b) statements of material facts (referred to herein as "Pl.'s 56.1" and "Def.'s 56.1") and exhibits are as follows.

Oblix is a corporation organized and existing under the laws of Delaware and is a citizen of California with its principal place of business in Cupertino, California. (Def.'s 56.161. ¶ 1.) Winiecki is a resident and citizen of Illinois. (Id. ¶ 2.)

On or about September 12, 2000, Oblix hired Winiecki to be its Regional Sales Representative for the Central Region. (Id. ¶ 3.) On or about September 12, 2000, Winiecki received and signed Oblix's Employment, Confidential Information and Invention Assignment Agreement ("the Agreement"). (Id. ¶ 4.) Winiecki was told that she needed to sign the Agreement in order to commence her employment with Oblix. (Pl.'s 56.1 ¶ 25.) Only Winiecki signed the Agreement. (Id. ¶ 26.) Under the Agreement, Winiecki agreed that:

any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be resolved exclusively by binding arbitration to be held in Santa Clara, California, in accordance with the rules then in effect of the American Arbitration Association ["the AAA"]. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. [Oblix and Winiecki] shall each pay one-half of the costs and expenses of such arbitration, and each . . . shall separately pay . . . counsel fees and expenses.
(Def.'s 56.1 Ex. B § 10A.) The Agreement also provided that:
any dispute or controversy arising out of or relating to Section 1 of this Agreement or the amount of salary compensation, severance or other similar amount owing to me, shall be resolved through the arbitration procedure set forth in this Section 10B. The arbitrator shall be selected in accordance with the rules for arbitrator selection then in effect of [the AAA]. The arbitrator thereby selected shall, after consultation with [Oblix and Winiecki], set forth a timetable for the arbitration, along with a schedule of the pleadings and evidence to be submitted at each stage of the arbitration. After such pleadings and evidence have been submitted, and the arbitrator has reviewed them to his or her satisfaction, the arbitrator shall request [Oblix and Winiecki] to each submit to the arbitrator and exchange with each other [their] last offers. The arbitrator shall be limited to awarding only one or the other of the two offers submitted, provided, however, that if [Winiecki is] terminated for good cause, in no event shall the amount of the award be greater than the accrued but unpaid salary owing to [her] at the time of the termination of [her) employment relationship with [Oblix] plus a maximum of one additional month of salary for each full year of employment service up to an absolute maximum of three months of salary.
(Id. § 10B.) Section 10C of the Agreement provides that:
[Winiecki] agree[s] that it would be impossible or inadequate to measure and calculate [Oblix's] damages from any breach of the covenants set forth in Sections 2, 3, and 5 herein. Accordingly, . . . if [Winiecki] breach[esl [Sections 2, 3, or 5 of the Agreement], [Oblix) will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this Agreement. . . . no bond or other security shall be required in obtaining such equitable relief and [Winiecki] hereby consent(s) to the issuance of such injunction and to the ordering of specific performance.
(Id. § 10C.) The Agreement also provides that it "will be governed by the laws of the State of California" and that Winiecki "expressly consent[s] to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against [her) by [Oblix] arising from or relating to this Agreement." (Id. § 11A.)

Under section 2 of the Agreement, entitled "Confidential Information", Winiecki agreed not to disclose confidential or proprietary information of Oblix or third parties to anyone and not to disclose her former or concurrent employer's proprietary information to Oblix. (Def.'s 56.1 Ex. B ยง 2.) Under section 3 of the Agreement, Winiecki agreed, in pertinent part, to (1) grant Oblix a "nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell" any Oblix product that incorporated any invention by Winiecki and (2) assign to ...

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