Taylor v. Lifetouch Nat. School Studios, Inc., 4:05-cv-0017 AS.

Decision Date06 June 2007
Docket NumberNo. 4:05-cv-0017 AS.,4:05-cv-0017 AS.
Citation490 F.Supp.2d 944
PartiesJohn S. TAYLOR, Plaintiff, v. LIFETOUCH NATIONAL SCHOOL STUDIOS, INC., Defendant.
CourtU.S. District Court — Northern District of Indiana

Hunter J. Reece, Judson Gregory Barce, Barce & Barce PC, Fowler, IN, for Plaintiff.

Stephen R. Pennell, Trenten D. Klingerman, Stuart & Branigin LLP, Lafayette, IN, for Defendant.


ALLEN SHARP, District Judge.

This matter is before the Court on three separate motions filed by Defendant Lifetouch National School Studios, Inc.: (1) motion summary judgment (Docket No. 14); (2) motion to strike (Docket No. 34); and (3) motion to strike (Docket No. 38). Oral arguments were heard on these motion in Lafayette, Indiana on January 20, 2006, and the issues have been fully briefed. For the reasons set forth below, the motions are GRANTED.

I. Introduction

The Plaintiff, John S. Taylor ("Taylor") has alleged that his former employer, Lifetouch National School Studios, Inc. ("Lifetouch"), breached a contractual duty to pay him for a period of thirteen (13) months beyond the termination of his employment at Lifetouch and that Lifetouch breached a contractual duty to provide him with employment benefits including health insurance and participation in the Employer Stock Ownership Plan ("ESOP"). Taylor seeks compensatory damages and costs.

II. Jurisdiction

The Court has original jurisdiction, pursuant to 28 U.S.C. § 1332, because this cause of action involves citizens of different states1 and because the amount in controversy exceeds $75,000.00.

III. Standard of Review

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bragg v. Navistar Int'l Trans. Corp., 164 F.3d 373 (7th Cir. 1998). After affording the parties adequate time for discovery, a court must grant summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting FED.R.CIV.P. 56); Larimer v. Dayton Hudson Corp., 137 F.3d 497 (7th Cir.1998), reh'g denied. A question of material fact is a question which will be outcome-determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party may discharge this initial burden by demonstrating that there is insufficient evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The moving party may also choose to support its motion for summary judgment with affidavits and other admissible material, thereby shifting the burden to the nonmoving party to demonstrate that an issue of material fact exists. See Kaszuk v. Bakery & Confectionery Union & Indus. Int'l Pension Fund, 791 F.2d 548, 558 (7th Cir.1986); Bowers v. De Vito, 686 F.2d 616, 617 (7th Cir.1982); Faulkner v. Baldwin Piano & Organ Co., 561 F.2d 677, 683 (7th Cir. 1977). The nonmoving party cannot rest on its pleadings, Weicherding v. Riegel, 160 F.3d 1139 (7th Cir.1998); Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir.1994); nor may that party rely upon conclusory allegations in affidavits. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995).

During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir.1996). However, the plaintiff must do more than raise a "metaphysical doubt" as to the material facts. Matsushita, 475 U.S. at 577, 106 S.Ct. at 1351. Rather, he must come forward with "specific facts" showing that there is a genuine issue for trial. Id. at 587, 106 S.Ct. 1348 (quoting FED.R.CIV.P. 56(e)).

IV. Facts

In 1999, Lifetouch purchased Olan Mills School Portraits ("Olan Mills"), a competitor engaged in the same business. (Taylor Aff. at ¶ 2; Weisse Aff. at ¶ 4). At the time of the purchase, Taylor worked for Olan Mills as a Territory Manager, and on February 1, 1999, as a part of the purchase, Lifetouch hired Taylor as a Territory Manager. (Taylor Aff. at ¶ 2; Weisse Aff. at ¶ 4). The terms and conditions of Taylor's employment at Lifetouch as a Territory Manager were memorialized in a "Territory Manager Employment Agreement."2 (Weisse Aff. at ¶ 5, Ex. 1).

In September, 2002, Taylor met with Lifetouch Regional Sales Manager Tom Weisse ("Weisse") to discuss his performance. (Weisse Aff. at ¶ 6). Weisse indicated to Taylor that his performance as Territory Manager was poor and that his territory had experienced a decreased market share, increased territory losses, and declining territory sales. (Weisse Aff. at ¶ 6). Weisse and Taylor agreed to several specific targets to be achieved in order for Taylor to continue his employment as Territory Manager. (Weisse Aff. at ¶ 7). Taylor resigned his employment as Territory Manager effective January 1, 2003. (Weisse Aff. at ¶ 9).

During that same month, Taylor transitioned to a Sales Representative position, effective February 1, 2003. Taylor and Lifetouch memorialized the agreement to change Taylor's employment status from Territory Manager to Sales Representative in a Transition Agreement.3 In the Transition Agreement, Taylor acknowledged that he received "all compensation earned as Territory Manager, including but not limited to commissions" and that "the XL Territory that he managed is in a debt position in the amount of $68,000.00" (Transition Agreement at ¶ 2-3). The Transition Agreement also stated that after the effective date, Taylor's employment relationship with Lifetouch shall be governed by the terms of a Sales Representative Agreement. (Transition Agreement at ¶ 10).

The Sales Representative Employment Agreement delineated the terms and conditions of Taylor's employment at Lifetouch as a Sales Representative, and was effective January 17, 2003. The Sales Representative Employment Agreement provided, in relevant part:

1. Responsibility. As a Sales Representative, you will be responsible for selling Lifetouch products and services as directed by your territory manager. If directed by your territory manager, you may also be responsible for taking photographs. Products and services may include portraits, memory books, yearbooks and other portrait and related products and services to students, schools, organizations, leagues, clubs and other school and sports related organizations. You will also be responsible for performing administrative services in connection with your selling efforts. You will direct your sales efforts to the customers and potential customers assigned to you by your territory manager. The Company retains the right and authority in its sole discretion to change the customers and potential customers assigned to you and to add or remove products and services from your assigned responsibility. You are responsible for understanding and complying with all current Lifetouch policies, procedures, rules, regulations and guidelines. Lifetouch may modify or revoke policies, procedures, rules and regulations from time to time in its sole discretion. You agree to use the Lifetouch name ad reputation exclusively for the benefit of Lifetouch, in the manner directed by Lifetouch and to at all times conduct yourself and Lifetouch business in a lawful and respectable manner.

2. Duty of Loyalty. As an employee of Lifetouch, you are expected to perform your duties and conduct yourself in a lawful and respectable manner in the best interests of the Company. You will devote your full working time and attention exclusively to your responsibilities as a sales representative for Lifetouch products and services.4 You will not under any circumstances carry out any other photography or yearbook/memorybook-related business or any other business providing products or services to the Lifetouch customers you serve or that will interfere with your duty of loyalty to Lifetouch.

(Sales Representative Employment Agreement at ¶ 1-2). The parties agreed that Taylor's employment with Lifetouch was at-will and that either Lifetouch or Taylor could terminate employment "at any time for any reason, with or without cause and with or without notice." (Sales Representative Employment Agreement at ¶ 9). Finally, the parties agreed that only paragraphs 8, 10, 11, 12, 13, and 15 of the Sales Representative Employment Agreement would survive the termination of Taylor's employment by Lifetouch. Those paragraphs provide for protection of confidential, proprietary and trade secret information (¶ 8), the return of property (¶ 10), injunctive relief (¶ 11), accounting/return of profits (¶ 12), portrait release (¶ 13), and nondisparagement (¶ 15).

Taylor's employment with Lifetouch ended on December 27, 2003. (Larson Aff. at ¶ 6). Taylor did not provide any services for Lifetouch after December 27, 2003, and Taylor did not receive any pay from Lifetouch after December 27, 2003. (Larson Aff. at ¶ 6; Taylor Dep. at 120:15-28 and 111:19 through 112:11).

V. Motion to Strike (Docket No. 34)

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