The opinion of the court was delivered by: Harold A. Baker United States District Judge
Monday, 06 December, 2010 12:00:10 PM
Clerk, U.S. District Court, ILCD
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Eminent jurist Learned Hand once observed, "I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death." The quotation captures succinctly the tenor of this case, where the defendant, Pat White ("White"), has defended pro se the claims of the plaintiff, Airfloat, LLC ("Airfloat"), under the Lanham Act, 15 U.S.C. § 1051 et seq. White filed a counterclaim alleging that Airfloat violated the Lanham Act by, among other things, misleading a customer of White's and diverting the sale from White to Airfloat. White claims that this litigation has caused pain, suffering and stress which have exacerbated his cardiac condition, for which he was hospitalized during the pendency of this dispute. White alleges that despite having presented Airfloat with "certified mail containing verifiable medical certificates," Airfloat relentlessly sought to ruin his health and destroy his business.
The parties have filed cross-motions for summary judgment. For the following reasons, White's motion  is denied. Airfloat's motion  is granted, with some remedies to be determined after further briefing.
White is a citizen of the United Kingdom who has resided primarily in South Africa and England and, since early 2009, in the United States. White had a long-standing business relationship with Decatur, Illinois-based Airfloat Systems (the "predecessor"). Under an arrangement with the predecessor, White did business in the United Kingdom as Airfloat Systems UK ("Airfloat UK"). In 2005, JLS Acquisition Group, LLC ("JLS"), purchased substantially all the assets of the predecessor, including its accounts receivable. The name was changed to Airfloat. Like its predecessor, Airfloat is also located in Decatur, Illinois.
The predecessor's accounts receivable included some $17,000 owed by White. JLS's Jason Stoecker ("Stoecker") claims that he understood that White was no longer affiliated with the predecessor, who was ignoring White's "pie in the sky" ideas because White had disappeared and had not been paying his bills.
Stoecker and White communicated by email after the acquisition, with Stoecker hoping to collect the sum owed by White. In September 2005, Stoecker and White discussed the idea of White becoming either an outside sales representative or a distributor for Airfloat. The discussions were fruitless and soon ended. Things improved a bit by 2009. In the middle of 2009, White contacted Airfloat stating that he had a buyer "in Europe" for 152 Airfloat air bearings. White stated, "The customer is chasing and I am thinking 'buy American', in the light of our current truce it makes sense." Stoecker said that he would work up a quote. Stoecker also asked, "What country are these Air Bearings for? And is the qty really 152 items? Wow .. That's a big order." White replied that the customer was doing a job on a production line in Thailand. Stoecker learned that the customer was Myande, a Chinese company that had contacted Airfloat directly some months before it had contacted White. Airfloat then commenced this case against White pursuant to the Lanham Act.
When deposed, White asserted that by buying the predecessor's assets, Stoecker inherited an obligation to continue selling products to White, or to customers of White's, for which White would receive a commission. He contends that he spent much time and money building his business as Airfloat UK, and claims that Stoecker "wants to take over [Airfloat UK's] name in Europe and he wants to take over my hard work that I put in that he just cancelled out when he took over the company." White Dep. 158.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Any discrepancies in the factual record should be evaluated in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
"Summary judgment is the 'put up or shut up' moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2000). A party opposing summary judgment bears the burden to respond, not simply by resting on its own pleading but by "set[ting] out specific facts showing a genuine issue for trial." See Fed. R. Civ. P. 56(e). "A party [opposing] summary judgment is required to 'wheel out all its artillery to defeat it.'" Caisse Nationale de Credit Agricole v. CBI Industries, Inc.,90 F.3d 1264, 1270 (7th Cir. 1996) (quoting Employers Ins. of Wausau v. Bodi-Wachs Aviation Ins. Agency, Inc., 846 F. Supp 677, 685 (N.D. Ill. 1994)). "If [the non-movant] does not [meet his burden], summary judgment should, if appropriate, be entered against [the non-movant]." Fed. R. Civ. P. 56(e).
Where, as here, the parties have filed cross-motions, the court addresses each motion separately, viewing the evidence in the light most favorable to the non-movant. McKinney v. Cadleway Properties, Inc., 548 F.3d 496, 500 (7th Cir. 2008). If there is no genuine issue of material fact "and one or the other party is entitled to prevail as a matter of law, the court will render judgment." 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.).
As a pro se litigant, White is exempt from the provisions of Local Rule 7.1(D). See CDIL-LR 7.1(D)(6). However, on summary judgment, the Federal Rules of Civil Procedure require any party to present admissible evidence to support or oppose the motion. See Fed. R. Civ. P. 56; Berry v. Chicago Transit Authority, 618 F.3d 688, 690 (7th Cir. 2010). Argument alone, without citation to admissible evidence, is insufficient. See Scherer v. Rockwell Intern. Corp., 975 F.2d 356, 361 (7th Cir. 1992).
White has moved for summary judgment. The court must view his evidence in the light most favorable to the non-movant, Airfloat. McKinney, 548 F.3d at 500.
White claims that he is entitled to summary judgment because the Lanham Act does not apply to him. He argues that he is a citizen of the UK who does not do business in the United States and does not actively solicit business from the United States. White argues that the Lanham Act does not extend beyond the borders of this country, and it does not apply to non-citizens who are alleged to have infringed and whose conduct does not have a substantial effect on United States commerce. Therefore, he concludes that this court lacks jurisdiction.
In response, Airfloat cites the deposition testimony of White and Stoecker to show that White is married to a United States citizen and during the relevant time period was living in the United States. During that time, he maintained websites with the domain names www.airfloatsystems.com and www.airfloat.co.uk. Through these websites, Myande contacted White, hoping to purchase a large quantity of Airfloat's air bearings. Then White sought a quote from Airfloat for the desired product. Email printouts show that Stoecker sought additional information from White because the quantity desired was so large.
At his deposition, Stoecker identified Exhibit 25 as the document that White presented to Airfloat. The document appears to be an incomplete purchase order for 152 Airfloat air bearings. Stoecker testified, "It's the same document we received from the customer months earlier in our direct correspondence with them. And we then called the customer to confirm that it was not a purchase order. And [White] had no such purchase order or ...