Case 1:21-cv-00307-JPH-MG Document 60 Filed 09/14/21 Page 1 of 15 PageID #: 592

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NOBLE ROMAN’S, INC., )

)
Plaintiff/Counterclaim Defendant, )
)
v. )
)
GATEWAY TRIANGLE CORP., )
7405 INDY CORP., and )
NORTHLAKE MARKETING, LLC, )
)
Defendants/Counterclaim Plaintiffs. )
)
__________________________ ) No. 1:21-cv-307-JPH-TAB
)
GATEWAY TRIANGLE CORP., )
7405 INDY CORP., )
NORTHLAKE MARKETING, LLC, and )
)
)
Third Party Plaintiffs, )
)
v. )
)
PAUL MOBLEY and TROY BRANSON, )
)
Third Party Defendants. )

BRIEF IN SUPPORT OF NOBLE ROMAN’S, INC.,

PAUL MOBLEY, AND TROY BRANSON’S MOTION FOR
SUMMARY JUDGMENT ON ABUSE OF PROCESS CLAIM

Plaintiff/Counterclaim Defendant, Noble Roman’s, Inc. (“NRI”) and Third Party

Defendants Paul Mobley and Troy Branson (NRI, Paul Mobley, and Troy Branson hereinafter

referred to collectively as “NRI Defendants”), by counsel, HOLLINGSWORTH ROBERTS

MEANS LLC, pursuant to Rule 56 of the Federal Rules of Civil Procedure, respectfully submit

this brief in support of their motion for summary judgment on the abuse of process claim filed by

Defendants/Counterclaim Plaintiffs/Third Party Plaintiffs, Gateway Triangle Corp. (“Gateway”),

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7405 Indy Corp (“7405”), and Northlake Marketing LLC (“Northlake”) (Gateway, 7405, and

Northlake, hereinafter referred to collectively as “the Gateway Parties”). The NRI Defendants will

separately file their supporting evidentiary designation.

TABLE OF CONTENTS

I. INTRODUCTION [3]

II. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE [3]

III. STANDARD OF REVIEW [7]

IV. ARGUMENT [7]

A. Pre-Lawsuit Negotiations

B. The Lawsuit Filed by NRI

V. CONCLUSION [14]

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I. INTRODUCTION

NRI is an Indiana-based for-profit corporation, with Indiana roots dating back more than

fifty years, in the business of scratch-made pizza and related food offerings made available for sale

primarily at its stand-alone restaurants, inside convenience stores, in hospitals, and at

entertainment facilities, and as “take and bake” pizzas from grocery stores. Many of its restaurants

are operated through franchise agreements with private owners. In such cases, the franchisees are

granted a contractual license to market and sell NRI pizza and other food in exchange for

commitments regarding the operation of the restaurants.

This case arises from NRI’s allegations that the Gateway Parties, which own and operate a

chain of convenience stores branded as “LUKE’S”, breached the terms of the operative franchise

agreement governing fourteen (14) store locations and otherwise violated the Lanham Act

including by selling non-NRI products in branded warmer racks and failing to de-brand from

affiliation with NRI upon the natural expiration of the franchise agreement. In their best attempt

to play defense with offense, the Gateway Parties sued NRI’s Executive Chairman Paul Mobley

and its Executive Vice President, Troy Branson for abuse of process, and filed the claim in counter

against NRI as well, based on a handful of communications occurring between the parties prior to

filing the lawsuit.

II. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

On or about June 30, 2013, NRI and Gateway entered into a Master Franchise Agreement

with the addition of three amendments on June 22, 2016, December 21, 2016, and October 18,

2017 (collectively referred to herein as the “Franchise Agreement”). [Dkt. 59-1 at 2 (Ex. A,

Affidavit of Paul Mobley (“Mobley Aff.”)).] Pursuant to the agreement, Gateway was authorized

to sell “Noble Roman’s” branded food items and further agreed to, in pertinent part, sell or offer

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all menu items for sale in the manner prescribed by NRI, and to sell only the items expressly

permitted by NRI. [Dkt. 59-2 at 15 (Ex. A, Mobley Aff., Tab 1, § VIII(E)(1), (2)).] Gateway also

agreed to use “Noble Roman’s” trademarks in connection with their food items. [Dkt. 59-2 at 18

(Ex. A, Mobley Aff., Tab 1, § IX(C)(1)).] Gateway agreed upon termination to cease the use of

any and all “Noble Roman’s” trademarks, return all property owed to NRI, and cease presenting

themselves as an affiliate of NRI. [Dkt. 59-2 at 29-30 (Ex. A, Mobley Aff., Tab 1, § XVIII(A),

(B), (E)).] The term of the Franchise Agreement ended upon its natural expiration on December

31, 2019. [Dkt. 59-2 at 1 (Ex. A, Mobley Aff., Tab 1, Amendment # 3).] The fourteen (14)

LUKE’S store locations governed by the Franchise Agreement at its expiration were listed on a

certain Schedule 1A, as follows:

[Dkt. 59-2 at 5 (Ex. A, Mobley Aff., Tab 1).]

NRI discovered that, during the term of the Franchise Agreement, Gateway placed

meatloaf, cheeseburgers, pulled pork, chicken, grilled chicken, and spicy chicken sandwiches (all
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non-NRI products) in an NRI branded warmer rack at the LUKE’S stores listed on Schedule 1A

as locations numbers 1, 2, 4, 8 and 14. [Dkt. 59-5 at 2-3 (Ex. B, Defendants’ Answers to Plaintiff’s

First Set of Interrogatories, Answer No. 2).]

On October 14, 2020, NRI filed a complaint in Indiana state court claiming theft and

conversion, breach of franchise agreement, trademark infringement, and unjust enrichment. See

generally, [Dkt. 1-2 at 7-17 (Compl.).] In response, the Gateway Parties removed the case to this

Court and on March 8 concurrently answered NRI’s claims, asserted affirmative defenses to them,

and moved to dismiss them. [Dkt. 15 at 1-27 (Defendants’ Counterclaim) and Dkt. 17 at 1-13

(Defendants’ Motion to Dismiss).] The Gateway Parties also initiated counterclaims against NRI,

and third-party claims (erroneously styled as “counterclaims”) against Troy Branson and Paul

Mobley for abuse of process. [Dkt. 15 at 22-27 (Defendants’ Counterclaim).] Following

appearance by the undersigned attorneys and their law firm, NRI amended its complaint on April

2 to drop the civil theft and conversion claims thereby narrowing the issues to the Gateway Parties’

contract breach and trademark infringement. [Dkt. 30 at 1-12 (Amended Compl.).] NRI also

dropped Gateway principal Thomas M. Collins III and a Gateway-affiliated special purpose entity,

as named defendants in the lawsuit. (Id.) In response to the amended pleading, the Gateway

Parties essentially restated their answer pleading and maintained the abuse of process claims

against NRI and its principals. [Dkt. 37 at 1-22 (Amended Counterclaim).]

The Gateway Parties allege that NRI’s claims are objectively unreasonable (only to later

admit in discovery facts which prove the operative claims) and were not filed to obtain a judgment

but instead for the ulterior motives of causing the Gateway Parties to incur costs and to scare other

franchisees into compliance to avoid similar litigation. [Dkt. 37 at 20-21 (Amended Counterclaim,

¶¶ 25-27).] They allege comments made by Mr. Mobley and Mr. Branson during settlement

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negotiations, referring to costly litigation, payment of legal fees, and a long period of discovery,

amounted to threats to engage in abusive litigation practices. [Dkt. 37 at 18-20 (Amended

Counterclaim, ¶¶ 11, 12, and 20).]

In a July 15, 2019 letter, Mr. Mobley refers to a settlement offer previously made by his

colleague Mr. Branson, notes Gateway’s rejection of the offer, and makes a new offer. [Dkt. 59-

3 at 2 (Ex. A, Mobley Aff., Tab 2).] He closes the letter by stating “If the settlement offer expires,

Noble Roman’s will pursue all legal remedies available to it, which includes any legal fees for

pursuing its rights and protecting its franchise.” [Dkt. 59-3 at 2 (Ex. A, Mobley Aff., Tab 2).] On

August 29, Mr. Mobley writes:

Whether you have corrected “both the photo and product violations” does not wipe
away the damage that had already been done. As to whether or not Luke Brand’s
(sic) is still in non-compliance will have to be determined. If we are forced to file
a lawsuit we will have a significantly long period of discovery as we will subpoena
all accounting records, sales records, purchase records and any other financial
information to determine our ultimate damages. In addition, we will conduct
interrogatories of everyone in your organization with knowledge of its activities in
order to determine all the facts.

Our offer to extend the agreement and come into compliance immediately was
clearly labeled as an attempt to settle. We now have given you more than ample
time to propose any settlement that you desire to propose but you have just
continually delayed with one excuse after another. As Mr. Branson has
communicated to you, the settlement offer we made is just an attempt to settle. If
you prefer to settle by compensating us for the damages you need to make that
offer, however, it is only fair to warn you that is going to be an expensive way to
settle our claim.

[Dkt. 59-4 at 1-2 (Ex. A, Mobley Aff., Tab 3).] Mr. Branson spoke with Mr. Collins and, according

to the Gateway Parties, made statements such as “start running up the bill,” “it’s going to be

costly,” and “very clear in that you’ll pay our legal fees.” [Dkt. 37 at 18 (Amended Counterclaim

¶12).] Despite this emphasis on NRI’s discussion of fees during negotiations, the Gateway Parties

acknowledge in their own counterclaim that attorneys’ fees may be awardable as part of the claims

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filed by NRI – under Section 1117(a) of the Lanham Act (“[t]he court in exceptional cases may

award reasonable attorney fees to the prevailing party” and under the terms of the Franchise

Agreement in instances of breach. [Dkt. 37 at 18 (Amended Counterclaim, ¶¶ 13-15).]

III. STANDARD OF REVIEW

Summary judgment is essentially an inquiry as to whether the evidence presents a

significant disagreement to require submission to a jury or whether the evidence is so one-sided

that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-

252 (1986). Upon filing of a proper motion, the court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to summary

judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party must cite to particular parts

of the materials in the record to support the assertion that a fact cannot be genuinely disputed. Fed.

R. Civ. P. 56(c)(1)(a). “A genuine issue as to any material facts exists ‘if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.’” Daugherty v. Page, 906 F.3d

606, 609-10 (7th Cir. 2018) (quoting Anderson, 477 U.S. at 248). The court views the facts in a

light most favorable to the non-moving party and all reasonable inferences are drawn in the non-

movant’s favor. Barbera v. Pearson Ed., Inc., 906 F.3d 621, 628 (7th Cir. 2018). “Irrelevant or

unnecessary facts do not preclude summary judgment even when they are in dispute.” Anderson,

477 U.S. at 248. The non-moving party must come forward with specific facts showing that there

is a genuine issue for trial. Id.

IV. LAW AND ARGUMENT

In order to prevail upon a claim of abuse of process, the Gateway Parties must prove the

NRI Defendants (1) acted with an ulterior purpose and (2) undertook a willful act in the use of

process not proper in the regular conduct of the proceeding. Reichhart v. City of New Haven, 674

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N.E.2d 27, 30 (Ind. Ct. App. 1996). Neither element can be established but the focus of this motion

is on the latter of the two which contains two parts – a showing of process and the willful act – and

we accordingly refer to herein as the “willful act of improper process” element.

“The starting point for analysis of an abuse of process claim is to determine whether the

[counter-]defendant employed an improper process, not the [counter-]defendant’s motivation in

employing that process.” Panwar v. Access Therapies, Inc., No. 1:12-cv-00619-TWP-TAB, 2013

WL 320673 at *2 (S.D. Ind. 2013) (citing Reichhart, 674 N.E.2d at 31). “Process” is defined as

“action undertaken by a litigant in pursuing a legal claim.” Konecranes, Inc. v. Davis, No. 1:12-

cv-01700-JMS-MJD, 2013 WL 5701046 *5 (S.D. Ind. October 18, 2013) (quoting Reichhart,

674 N.E.2d at 32). It requires the use of “the judicial machinery.” Id.

A. Pre-Lawsuit Negotiations

The NRI Defendants would concede that the filing of a complaint would be considered

process, and this is one of the components of the Gateway Parties’ abuse of process claim. [Dkt.

37 at 20-21 (Amended Counterclaim, ¶¶ 24-30).] But the other component of the Gateway Parties’

claim is premised upon words that Mr. Mobley and Mr. Branson wrote and said during settlement

negotiations, concerning the potential costliness of litigation, incurrence of legal fees, and the

potential for a protracted discovery process. [Dkt. 37 at 17-20 (Amended Counterclaim ¶¶ 11, 12,

and 20).] While the definition of process can be expansive, the mere threat of litigation during

settlement negotiations is not a use of the courts, legal process, or “the judicial machinery.” The

Gateway Parties cannot demonstrate a basis for statements which references, or even amount to

threats of litigation constitute “process” as no judicial machinery has been used or abused here.

Therefore, this component of their claim warrants no further consideration on its merit to support

the abuse of process claim.

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Assuming arguendo that threats of future process constitute “process” (which they do not),

the second component of the willful act of improper process element – the “willful act” itself –

cannot be shown. For this component, the Gateway Parties cling to Mr. Mobley’s reference to

attorneys’ fees in pre-litigation correspondence, where he writes of NRI’s intent to “pursue all

legal remedies available to it, which includes any legal fees for pursuing its rights and protecting

its franchise”, and Mr. Branson’s alleged statements that “it’s going to be costly”, and that under

both the Franchise Agreement and the Lanham Act it’s “very clear in that you’ll pay our legal

fees.” [Dkt. 37 at 17-20 (Amended Counterclaim ¶¶ 11-20); Dkt. 59-3 at 2 (Ex. A, Mobley Aff.,

Tab 2).] Certainly, the Gateway Parties cannot with a straight face allege that the NRI Defendants

references to fees and the costliness of litigation constitute a willful act, when the Gateway Parties

themselves readily admit in the same pleading that attorneys’ fees may indeed be recoverable by

NRI in the lawsuit that was ultimately filed. [Dkt. 37 at 18 (Amended Counterclaim ¶¶ 13-15).]

If this is their position, it falls well short of what would meet the willful act of improper process

standard under the broadest of interpretations.

Perhaps the Gateway Parties meant to say that NRI Defendants’ fee and litigation references

were willful and improper process use because NRI’s claims lacked merit and therefore the fees

the NRI Defendants referred to would never be awarded as a remedy to NRI. We are now operating

well outside the bounds of the willful act of improper process standard. Nonetheless, the Gateway

Parties claim still fails. The NRI Defendants were confident in the merit of their claims when Mr.

Mobley and Mr. Branson sparred with Mr. Collins. And for good reason – the Gateway Parties

have admitted during discovery in this case that non-NRI products were placed in an NRI branded

warmer. [Dkt. 59-5 at 2-3 (Ex. B, Defendants’ Answers to Plaintiff’s First Set of Interrogatories,

Answer No. 2).] The Gateway Parties still wish to quarrel about damages, rebut that a fee recovery

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is warranted, or argue that Mr. Branson acquiesced to the improper use of NRI’s trademarks. But

these are defenses and affirmative defenses for the Gateway Parties to assert at trial, they are not

the foundation for an abuse of process claim under Indiana law. On the contrary, an arguably

viable claim cannot support grounds for abuse of process. See generally Reichhart, 674 N.E.2d at

33. That NRI’s claims including its fee remedies are viable is not debatable.

The NRI Defendants’ offer to extend the term of the Franchise Agreement in settlement of

NRI’s claims fairs no better as the basis for the Gateway Parties’ abuse claim. The offer is just

that, an offer of settlement made clear by Mr. Mobley in his request for a counteroffer of an

extended term or compensation by way of damages. [Dkt. 59-4 at 2 (Ex. A, Mobley Aff., Tab 3).]

Ultimately, settlement was not successful forcing NRI to file suit against the Gateway Parties to

recover damages—a proper use of process.

An abuse of process claim contains two distinct elements, and a party must first establish

that the defendant employed improper “process” before the court proceeds to an examination of

the defendant’s motivation. Reichhart, 674 N.E.2d 27, 31 (citing Comfax Corp. v. North American

Van Lines, Inc., 638 N.E.2d 476, 481-83 (Ind. Ct. App. 1994)). As set for above, the NRI

Defendants’ use of process was proper, the abuse claim fails, and the investigation into the NRI

Defendants’ motives stops there. In other words, “there is no liability where the defendant has

done nothing more than carry out the process to its authorized conclusion, even though with bad

intentions.” Reichhart, 674 N.E.2d 27, 31(quoting Groen v. Elkins, 551 N.E.2d 876, 878-79 (Ind.

Ct. App. 1990)).

B. The Lawsuit filed by NRI

NRI’s filing of the pleadings are a use of process, sure, but its use of process was both

substantively and procedurally proper thus there was no abuse. There was no ulterior motive to

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the lawsuit other than to collect damages based on the wrongdoing of the defendant Gateway

Parties. Only where a complaint is filed for a purpose other than resolving a dispute or seeking

damages is it substantively improper and does it give rise to an abuse of process claim. See Estate

of Mayer v. Lax, Inc., 998 N.E.2d 238, 257 (Ind. Ct. App. 2013) (“There must be evidence that an

attorney filed a claim for a purpose other than aiding his or her client in adjudicating his or her

claim.”). For instance, in Lindsay v. Jenkins, the abuse of process plaintiff had direct evidence

that a lawsuit was filed against a party known to be immune from the claims, but because forcing

the immune party to defend the claims was more expensive than merely filing it. 574 N.E.2d 324,

326 (Ind. Ct. App. 1991) (emphasis added). The Lindsay case and the one at bar could hardly be

more different.

Here, the NRI Defendants’ statements relied upon by the Gateway Parties do not amount

to evidence that this lawsuit was initiated for a reason other than resolving the dispute or seeking

damages. As discussed above, the references to fees were made because, indeed, the NRI

Defendants have valid attorneys’ fees—the Gateway Parties have themselves acknowledged this.

[Dkt. 37 at 18 (Amended Counterclaim ¶¶ 13-15).] Further, the NRI Defendants’ telegraphed their

intent to “pursue all legal remedies available” and conduct discovery to “get all the facts” – in

other words, to use proper process to be made whole for the Gateway Parties’ violations of the

Franchise Agreement and Lanham Act. And, the NRI Defendants made an opening offer to settle

through the extension of the term of the Franchise Agreement, a starting point for settlement

negotiations that failed, causing NRI to file the complaint seeking recovery of its damages. [Dkt.

59-4 at 2 (Ex. A, Mobley Aff., Tab 3).]

Lacking any direct evidence of the willful act of improper process elements and trying to

find some way to establish their claim, the Gateway Parties pivot and attack NRI’s complaint as

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invalid, unwarranted, and unreasonable. [Dkt. 37 at 20 (Amended Counterclaim, ¶¶ 21, 22, and

25).] While the validity of legal claims can be relevant to whether filing them constitutes an abuse

of process, Indiana precedent shows that the invalidity standard is triggered only when legal claims

are legally deficient and lacking in any factual basis. See generally Estate of Mayer, 998 N.E.2d

at 258.

Here, we have only the Gateway Parties’ conclusory allegation that NRI’s claims are

invalid and objectively unreasonable. The Gateway Parties will pick the low-hanging fruit of the

theft and conversion claims that were voluntarily dismissed (not adjudicated in any respect) by

NRI. Even these claims, while no longer being pursued by NRI were far from objectively

unreasonable when brought. The Indiana Supreme Court in An-Hung Yao v. State, 975 N.E.2d

1273 (2012), found that for purposes of a violation of Indiana’s theft statute, I.C. §35-43-4-2, that

the definition of property can include “trademarks and/or markings or symbols of identification”

that may be “encumbered”. An-Hung Yao v. State, 975 N.E.2d 1273, 1281-82 (2012).

Indiana courts also look to a claim’s progression within the legal system to gauge whether

there was a willful act of improper process. In Konecranes, Inc. v. Davis, the defendant won a

motion to dismiss two of the plaintiff’s four claims, and the plaintiff filed an amended complaint.

Konecranes, Inc. v. Davis, No. 1:12-cv-01700-JMS-MJD, 2013 WL 5701046 *1 (S.D. Ind.

October 18, 2013). The amended pleading set forth the two new claims, so the defendants

answered and filed counterclaims including for abuse of process. Id. The Konecranes Court found

that unlike Lindsay, where there was direct evidence that the lawsuit lacked merit and was instead

brought specifically to impose costs upon the defendant, a portion of the plaintiff’s claims in

Konecranes remained and were proceeding. Id. at *6. The Konecranes Court held that because

the claims proceeded through the legal process as intended, with the defendants filing an answer

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and counterclaims of their own, the plaintiff’s filing of the complaint did not constitute an abuse

of process. Id.

In the instant case, NRI’s initial complaint was met with a motion to dismiss that was

rendered moot when an amended pleading was filed. The Konecranes Court noted that the

defendants did not move to dismiss two of the four claims, but instead answered the claims. Same

here. Once NRI amended its claims, they were answered and are now proceeding through

litigation. In its abuse of process analysis, the Konecranes Court gave no weight to the fact that

the court granted defendants’ motion to dismiss on two of the claims; certainly, no consideration

of NRI’s decision to voluntarily dismiss some of the claims challenged by the Gateway Parties in

their motion to dismiss would be warranted here. By filing an answer and not moving to dismiss

NRI’s new operative pleading, the Gateway Parties implicitly admit that NRI has alleged claims

upon which relief may be granted. NRI’s filing of the lawsuit was not an abuse of process because

it was used to institute a civil action that is proceeding as the process intended, making it both

substantively and procedurally proper.

NRI’s lawsuit has proceeded normally and the pre-lawsuit negotiations between the parties

are not direct evidence that the lawsuit lacked merit or was otherwise brought specifically to

impose costs upon the Gateway Parties or for purposes of intimidation. Therefore, the NRI

Defendants’ motive behind the litigation as alleged by the Gateway Parties, is irrelevant and

Plaintiffs’ abuse of process claim fails. Konecranes, Inc., 2013 WL 5701046 *5 (citing Comfax

Corp., 638 N.E.2d at 485).

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V. CONCLUSION

For the foregoing reasons, the NRI Defendants respectfully request that this Court grant

summary judgment in their favor and against the Gateway Parties on the abuse of process claim

pending in this matter.

Respectfully Submitted,

HOLLINGSWORTH ROBERTS MEANS LLC

/s/ Jaime L. Meyer

Jeffrey D. Roberts, Atty No. 23723-53
Jaime L. Meyer, Atty No. 23686-29
12801 E. New Market St.
Carmel, IN 46032
Office: (317) 569-2200
Facsimile: (317) 569-2210
jroberts@hrmlaw.com
jmeyer@hrmlaw.com
Attorneys for Noble Roman’s, Inc., Paul
Mobley, and Troy Branson

HOLLINGSWORTH ROBERTS MEANS, LLC

12801 E. New Market St.
Carmel, Indiana 46032
Tel: 317-569-2200
Fax: 317-569-2210

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CERTIFICATE OF SERVICE
This is to certify that on September 14, 2021, the foregoing paper was filed electronically

with the Clerk of the Court using the Court’s Electronic Case Filing (ECF) System. Notice of this

filing will be sent to all parties by operation of the ECF system. The following parties may access

this filing through the ECF system.

Ronald J. Waicukauski
Carol Nemeth Joven
WILLIAMS & PIATT, LLC
301 Massachusetts Avenue, Suite 300
Indianapolis, Indiana 46204
(317) 633-5270
ron@williamspiatt.com
carol@williamspiatt.com
/s/ Jaime L. Meyer
Jaime L. Meyer

HOLLINGSWORTH ROBERTS MEANS LLC

12801 E. New Market St.
Carmel, IN 46032
Tel: 317-569-2200
Fax: 317-569-2210

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