The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on four motions. The first is a motion by Defendants Thomas Judy, Jacqueline Judy, Ralph Craig, Richard Unger, and Vision Assessment Corporation (collectively referred to herein as "Vision") for summary judgment on the copyright infringement claims asserted by Plaintiff Stereo Optical Co., Inc. ("Stereo"). The second and third are cross-motions for summary judgment on Stereo's remaining counts for various state law claims. The fourth and last motion to be considered at this time is a motion by Vision to strike certain theories and documents advanced by Stereo. For the reasons set forth below, the motion for summary judgment on the copyright infringement claims is granted, the cross motions for summary judgment on the state law claims are denied, and the motion to strike is denied.
Stereo is a manufacturer of stereopsis vision tests, including the Stereo Butterfly Test ("Butterfly"), the Stereo Fly Test ("Fly"), the Stereo Randot Test ("Randot"), and the Stereo Random Dot E Test ("Dot E"). Stereo claims copyright protection of the four aforementioned vision tests. Fly, Randot, and Dot E have been manufactured and sold by Stereo since at least 1980; Butterfly has been manufactured and distributed by Stereo since at least 1982. Prior to 1988, none of these four tests displayed a copyright notice; since 1988, all copies distributed or sold by Stereo have displayed a copyright notice. Stereo has proffered no evidence that it has made any efforts to add a copyright notice to copies of these tests distributed prior to 1988.
Defendant Thomas Judy worked for Stereo from November 1989 until April 6, 2007, first as General Manager and then as Chief Operating Officer. Defendant Jacqueline Judy was an employee in Stereo's sales department from August 2004 to April 16, 2007. Defendant Ralph Craig worked in Stereo's sales department from December 1995 until April 24, 2007. Defendant Richard Unger was employed in Stereo's photography department from May 1980 until May 2, 2007. In late May or early June 2007, Thomas Judy and Ralph Craig formed Vision Assessment Corporation.
Since it was formed, Vision has sold products to customers of Stereo including Good-Lite Company, Ophthalmic Instruments, School Health Corporation, Arncon Labs, Wilson Ophthalmic, Pioneer International, Opthal-Mix Network, Lombart Instruments, and Belrose Refracting Equipment. According to Stereo, the vision tests manufactured and sold by Vision are reproductions or derivatives of Stereo's four tests.
Stereo's complaint asserted various state law causes of action based on alleged misconduct by the four individual defendants before, during, and after they left their employment at Stereo. Some were dismissed in September 2008; the remaining claims include violations of trade secrets, breach of contract, conversion, intentional interference with contractual relations, civil conspiracy, breach of fiduciary duty, and constructive trust.
After a long and contentious discovery period, Vision now moves for summary judgment in its favor on the entirety of the complaint, and Stereo cross moves for summary judgment on the asserted state law claims. Vision also moves to strike what it terms "new theories of liability" and "undisclosed or otherwise improper evidence."
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); rather, "[a] genuine issue exists when the evidence is such that a reasonable jury could find for the non-movant." Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). When reviewing the record we must draw all reasonable inferences in favor of the non-movant; however, "we are not required to draw every conceivable inference from the record--only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
When parties file cross motions for summary judgment, each motion must be assessed independently, and denial of one does not necessitate the grant of the other.
M. Snower & Co. v. United States, 140 F.2d 367, 369 (7th Cir. 1944). Rather, each motion evidences only that the movant believes it is entitled to judgment as a matter of law on the issues within its motion and that trial is the appropriate course of action if the court disagrees with that assessment. Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 230 (7th Cir. 1996).
With these principles in mind, we turn to the ...