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Davidson v. Schneider

United States District Court, N.D. Illinois, Eastern Division

February 20, 2014



JOAN H. LEFKOW, District Judge.

Plaintiff Thomas Davidson filed suit against defendants Patricia Schneider, Conditioned Ocular Enhancement, Inc. ("COE"), Drive Performance Corp., and Drive Performance Wheeling, LLC (collectively, "defendants") for breach of a settlement agreement among Davidson, Schneider, and COE and tortious interference with prospective economic advantage.[1] Before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, summary judgment is granted in favor of defendants on all counts.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To determine whether any genuine fact issue exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed.R.Civ.P. 56(c). In doing so, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 378 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). When considering cross-motions for summary judgment, the court must be careful to draw reasonable inferences in the correct direction. See, e.g., Int'l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir. 2002). The court may not weigh conflicting evidence or make credibility determinations. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011).

The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party cannot rest on pleadings alone but must designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). If a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex, 477 U.S. at 323-24.


I. Prior Litigation and Settlement Agreement

Thomas Davidson is the owner of High Tech Vision Training, which provides ocular vision training to baseball and softball players. (Dkt. 110 at ¶ 1.) Patricia Schneider is the president of COE and Drive Performance Corp., and the sole manager of Drive Performance Wheeling, LLC (d/b/a iTrac Vision Training) (collectively, "the Schneider entities"). ( Id. at ¶¶ 6-7.)

Davidson and COE were previously engaged in litigation about the alleged infringement of a vision training patent and related matters in this district. See Conditioned Ocular Enhancement, Inc. v. Bonaventura, et al., No. 05 C 2153 (N.D. Ill., filed Apr. 12, 2005). On March 6, 2008, COE and Schneider, on the one hand, and Davidson, on the other hand, entered into a confidential settlement and release agreement to resolve the litigation ("the settlement agreement"). ( Id. at ¶ 11.) Under the settlement agreement, COE, the owner of U.S. Patent No. 6, 447, 408 for an ocular enhancement training system ("the 408 patent") granted Davidson a "non-exclusive and non-transferable royalty free license under the 408 patent without the right to sublicense for the life of the 408 patent." (Dkt. 98, Ex 4 ("Settlement Agt.") at ¶ 2.) As a condition of the settlement agreement, the parties agreed not to

directly or indirectly, individually or in concert with others, engage in any conduct or make any statement calculated or likely to have the effect of undermining, disparaging or otherwise reflecting poorly upon the other party or their good will, products, services, or business opportunities, or in any manner detrimental to the other party, their successors and assigns, and affiliated entities, their shareholders, officers, directors, or employees, past, present and future.

(Settlement Agt. at ¶ 8.)

II. The Maleski Conversations

Eric Maleski was an employee of one of the Schneider entities in October and November 2008.[3] (Dkt. 110 at ¶ 15.) On October 12, 2008, Michelle Thiry, the director of softball operations for Arizona State University (dkt. 98, Ex. 3 ("Thiry Dep.") at 9:18-25) and a former student of Davidson's, emailed Maleski to ask about a vision training system that she had seen at a professional baseball game. (Dkt. 110 at ¶ 14; Thiry Dep. at 75:11-25; see also Dkt. 93, Ex. 3 ("Thiry Decl."), Ex. 1.) In response, Maleski called Thiry on October 17, 2008 and they spoke for almost an hour. (Thiry Decl. at ¶ 5.) During the coversation, Maleski made negative comments about Davidson. (Thiry Dep. at 38:19-39:10; Thiry Decl. at ¶¶ 5-8.) These comments included: "[I]f Thomas Davidson is doing vision training, then he or his company is infringing on ITRAC's patent."; "Thomas Davidson [is] no longer supposed or allowed to legally be engaged in performing vision training of any kind."; and Thomas Davidson's drills "don't make sense" and "do not work for improving vision training." ( Id. ) Thiry testified that Maleski's comments did not make her think any less of Davidson, and she never told anybody else about the conversation with Maleski. (Thiry Dep. at 44:17-44:23.)

Sometime in November 2008, Michael Hill, a hitting instructor and certified trainer in Davidson's vision training method, [4] contacted Nick Sanchez, an employee of one of the Schneider entities. (Dkt. 98, Ex. 2 ("Hill Dep.") at 44:16-24); Dkt. 93, Ex. 5 ("Hill Decl.") at ¶ 6.) Sanchez referred him to Maleski to further discuss iTrac's vision training capabilities. ( Id. ) Later that month, Hill called Maleski and spoke to him for ten minutes. (Hill Dep. at 45:20-46:3.) Hill told Maleski that he was interested in vision training and asked about the difference between Davidson's program and the system Maleski used. ( Id. at 46:20-47:1.) During the conversation, Maleski made negative comments about Davidson, including these: Getting involved with Davidson's company "could potentially be a bad thing, ' which might cause litigation and there could be adverse legal ramifications by being a part of High Tech Vision Training's program."; "[I]f [Hill] did anything as far as vision training was concerned with Thomas Davidson and High Tech Vision Training, there was a very good chance that there would be a lawsuit."; and "[Maleski's] company was the only company allowed to perform vision training" because it owned a patent that "covered all of vision training, no matter how performed." (Hill Decl. at ¶ 8; see also Hill Dep. at ...

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