The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, Alan C. Conrad and Electronic Production and
Monitoring, Inc., filed suit against Defendant, Vacuum Instrument
Corporation. Plaintiffs allege that Defendant failed to honor a
contract requiring Defendant to pay commissions on products sold
within Conrad's geographical sales area. Presently before the
Court is Defendant's Motion for Summary Judgment and Plaintiffs'
Cross-Motion for Summary Judgment. Plaintiffs have also filed a
Motion for Leave to Amend the Complaint, which seeks to make a
technical change to the Complaint and add a claim for an
Summary judgment is appropriate when no genuine issue of
material fact exists 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 a genuine issue of
material fact exists and to 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, for the purposes of this motion, 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.
Defendant makes and sells industrial leak-detection systems
that other manufacturers use to test for leaks in the
manufacturers' finished products. Def.'s 56.1 ¶ 4. Independent
sales representatives, such as Conrad, sell Defendant's systems to
industrial customers throughout the country. Def.'s 56.1 ¶ 5.
Pursuant to a Sales Representative Agreement, Defendant gave
Plaintiffs a designated geographical area to sell the
leak-detection systems. Def.'s 56.1 ¶¶ 8-9. The agreement
provided that Conrad would be credited with all sales emanating
from his territory and that Conrad would receive commissions for
sales based on a number of factors. Pl.'s 56.1 ¶ 3; Def.'s 56.1
¶¶ 12-14. Conrad was eligible to receive commissions for systems,
spare parts, and customer add-ons that Defendant bought from a
third-party. Def.'s 56.1 ¶ 13. The agreement also provided that
it could be terminated by either party with thirty-days' written
notice. Def.'s 56.1 ¶ 11.
In Count I, Conrad seeks to recover commissions for sales of
leak-detection systems sold by Defendant in Conrad's territory.
In the 1990s, Defendant made a number of sales to companies in
Conrad's territory; and Conrad did not receive full or any
commissions on these sales. Def.'s 56.1 ¶¶ 24, 25, 29-32, 36-39.
Although Conrad was aware of the sales and considered the failure
to pay commissions a breach of the Sales Representative
Agreement, Conrad continued working for Defendant and did not
terminate the sales agreement. Def.'s 56.1 ¶¶ 23, 25-27, 33-35,
In Count II, Conrad seeks to recover "shared commissions,"
which represent partial commissions Conrad agreed to accept, on
certain leak-detection systems sold by Defendant. Def.'s 56.1 ¶
40. In Count III, Conrad seeks commission for spare parts sold by
Defendant in Conrad's sales territory. Def.'s 56.1 ¶ 46.
On November 15, 2001, the Sales Representative Agreement
terminated. Def.'s 56.1 ¶ 21. ANALYSIS
Both Defendant and Plaintiffs move for summary judgment.
Defendant contends that Conrad waived his right to commissions
when he continued to perform under the Sales Representative
Agreement. Specifically, although Conrad was aware that Defendant
made sales in his territory and that he would not receive credit
or full commissions on those sales, Conrad still continued to
perform under the agreement. Defendant also argues that
Plaintiffs' evidence relating to the breach of contract is
speculative. Finally, Defendant seeks summary judgment on Count