United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, U.S. District Judge.
cause is before the Court on Plaintiff David Mizer
Enterprises, Inc.'s Motion for Summary Judgment (d/e 57).
Because genuine issues of material fact remain, the Motion is
is a corporation that provides technology services across the
United States. David Mizer (Mizer) is the president of
Plaintiff. Plaintiff created a business model and supporting
technology for providing services to automobile dealers,
which included a system to manage inventory and facilitate
web-based automobile shopping.
is a telecommunications company that operates television
stations throughout the country. Defendant wanted to use
Plaintiff's product with its current and prospective
automotive dealership advertising customers.
about August 27, 2008, the parties entered into a written
Licensing Agreement with a term from January 1, 2008 through
December 31, 2010. The Agreement did not specify an automatic
extension beyond the stated termination date. The Agreement
provided that either party could terminate the Agreement
without cause upon 60 days written notice and immediately for
any breach of the Agreement. In addition, Defendant could
have terminated its obligations under the Agreement by simply
not deploying Plaintiff's software to any of
Defendant's stations. Defendant never provided a notice
of termination to Plaintiff during the term of the Agreement.
The Agreement terminated on December 31, 2010.
Agreement allowed Defendant to host propriety and copyrighted
pages (code) owned by Plaintiff on Defendant's
servers. Defendant had the ability to add and remove the
software from its television stations' websites.
Plaintiff's software allowed Defendant's television
websites to carry a webpage that visitors to the website
could use to search for new and used cars in their local
was not responsible for the end revenue or profit Defendant
received from the advertising relationships Defendant entered
into with the automobile dealerships. Instead, Plaintiff
provided the infrastructure for managing the data related to
the automobile web sales and hosted the content of such data.
Plaintiff was also responsible for troubleshooting any
problems that arose.
the Agreement, Defendant could use Plaintiff's
proprietary software and business model for three years in
exchange for certain fees as outlined in Appendix A of the
Agreement. Plaintiff charged a monthly base fee per
dealership. If Plaintiff provided the data source-which the
Agreement defined as the means by which information about
specific automobiles is gathered and provided to
Plaintiff-Plaintiff charged a one-time set up fee and an
additional charge per month per dealership. A cap of $1, 000
per month per market area applied to pre-owned vehicles.
Appendix A provided that Defendant would pay Plaintiff each
month the amount due pursuant to the fee schedule. The
Agreement did not indicate whether Plaintiff would submit
invoices or whether Defendant would calculate on its own the
amounts due. In April 2008, approximately four months after
Defendant began using Plaintiff's program, Ambrose
Rivera, Plaintiff's contact person with Defendant at that
time, emailed Plaintiff asking for the total amount Defendant
owed to date for Plaintiff's work. In response to that
request, Plaintiff set up an aggregated markets link, which
allowed Defendant to review the participating dealerships for
each of Defendant's station websites. By doing so,
Defendant had the ability to track the program billing. While
it appears that Defendant paid Plaintiff in accordance with
Rivera's request, Defendant failed to pay Plaintiff for
the use of Plaintiff's propriety software and business
model during the remaining term of the Agreement.
See April 5, 2013 email (Mizer telling Rivera's
replacement, Todd Hartsell, that Mizer believed Defendant
paid the invoices submitted per Rivera's request;
Hartsell no longer works for Defendant).
December 2012, Plaintiff contacted Defendant to discuss
Defendant's nonpayment. Plaintiff submitted a spreadsheet
with market and billing information for the entire term of
the Agreement. Defendant denies that Plaintiff is entitled to
payment under the Agreement because of Plaintiff's poor
performance and because the late submission of invoices
deprived Defendant of the information needed to verify
Plaintiff's claims. Defendant did not, however, raise the
affirmative defense of waiver in its Answer.
Agreement also prohibited Defendant from using, making
available, selling, disclosing, or otherwise communicating to
any third party Plaintiff's confidential information,
either during or after the Defendant's relationship with
Plaintiff, without prior written approval of Plaintiff's
president. In addition, the Agreement required Defendant to
immediately deliver to Plaintiff all copies of all materials
and writings belonging to Plaintiff when the relationship
ended. Plaintiff asserts that Defendant violated this
provision because Defendant continued to use Plaintiff's
product after the contract term expired, specifically from
January 1, 2011 until early February 2013. Plaintiff also
asserts that Defendant's station's websites generated
126 leads after the Agreement expired. Defendant
disputes this, asserting that Defendant disabled the program
but that it was possible that cached pages of the inactive web
pages might be accessible under certain circumstances.
also brings claims relating to the development of a potential
website named Auto Buy Cell. The idea behind Auto Buy Cell
was to allow customers to use their cellphone to scan a code
on an automobile dealer's vehicle and pull up information
about that vehicle. The parties agree that Helen Agnew, who
worked for Defendant at that time, was in charge of
developing Auto Buy Cell. The parties dispute whether Agnew
acted for her own benefit or in her capacity as an employee
involvement with Auto Buy Cell began in early 2011. Agnew
testified that she involved Plaintiff not to develop software
but to find a way of getting dealer inventory to the Auto Buy
2012, Plaintiff disconnected from the Auto Buy Cell project.
At this time, the project had only advanced to the point that
it was a test site for developmental purposes. Plaintiff
claims that, despite disconnecting from Auto Buy Cell,
Defendant copied Plaintiff's actual software code without
Plaintiff's authorization. Agnew claims that the webpage
and software that appeared on the Auto Buy Cell website was
judgment is proper if the movant shows that no genuine
dispute exists as to any material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The movant bears the initial responsibility of informing the
court of the basis for the motion and identifying the
evidence the movant believes demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
ruling on a motion for summary judgment, the court must
consider the facts in the light most favorable to the
nonmoving party, drawing all reasonable inferences in the
nonmoving party's favor. Blasius v. Angel Auto.,
Inc., 839 F.3d 639, 644 (7th Cir. 2016). No genuine
issue of material fact exists if a reasonable jury could not
find in favor of ...