Case 1:21-cv-00307-JPH-MG Document 72 Filed 01/06/22 Page 1 of 31 PageID #: 1042

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. )

PLAINTIFF AND THIRD-PARTY DEFENDANTS RESPONSE IN OPPOSITION TO

CROSS-MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF
SUMMARY JUDGMENT ON ABUSE OF PROCESS COUNTERCLAIM

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

Defendants Paul Mobley and Troy Branson, by counsel, HOLLINGSWORTH ROBERTS

MEANS LLC, respectfully submit their reply in support of summary judgment on the abuse of

process claims filed by Gateway Triangle Corp., 7405 Indy Corp., and Northlake Marketing, LLC

(Gateway Triangle Corp. is both individually and, collectively with its party affiliates, referred to
Case 1:21-cv-00307-JPH-MG Document 72 Filed 01/06/22 Page 2 of 31 PageID #: 1043

herein as Gate a ), and NRI further submits its response to the cross-motion for summary

judgment filed by Gateway, as follows.

TABLE OF CONTENTS

I. INTRODUCTION [3]

II. STATEMENT OF MATERIAL FACTS IN DISPUTE AS TO GATEWAY S [5]

CROSS-MOTION FOR SUMMARY JUDGMENT

A. Gateway Admits Selling its own Food from the [5]

Noble Roman s Co nter
B. Gateway Admits it Failed to De-Brand its Stores [8]
upon Expiration of the Term
C. The Franchise Agreement Precl ded Gate a s Cond ct [9]

III. STANDARD OF REVIEW [11]

IV. ARGUMENT [11]

A. Gate a Breached the Franchise Agreement hen it comingled L ke s [11]

Sand iches ith NRI s Prod cts in the Noble Roman s Co nter Displa

B. Gateway was not Entitled to a Default Notice and Cure Period and does [14]
not kno hen it stopped placing its Food in the Noble Roman s Displa
C. The Post-Termination Covenants do not Require Default Notice or Provide [16]
a Cure Period
D. Gate a s Use of NRI s Marks as Confusing [18]

V. THE NRI DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT [22]

ON ABUSE OF PROCESS COUNTERCLAIM

A. NRI s Actions ere S bstanti el and Proced rall Proper [23]

1. The legal claims filed in this lawsuit are procedurally [24]
and substantively proper.
2. The pre-suit negotiations in this case do not constitute [25]
improper process.
B. E en if NRI s Intent as at Iss e, there are no Disputed Facts in Evidence [28]

VI. CONCLUSION [29]

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I. INTRODUCTION

Gateway and NRI had a thirteen-year franchise relationship, which started with a single

Noble Roman s Pi a resta rant at one of Gate a s L ke con enience store locations and

expanded to at least fifteen Luke store locations over the years. During the final year of the term,

Gateway fortuitously telegraphed, b a of one of its emplo ees inq iries to NRI, an intent to

copy and supplant the Noble Roman s Pizza restaurant operation with Gate a s own pizza and

related offerings at its Luke convenience stores. NRI kept a more watchful eye on compliance

from that time forward. The parties disp te began ith Gate a s contract noncompliance and

brand infringement and this case arose from there.

Before this litigation and throughout it, including in its summary judgment briefing,

Gateway never denies noncompliance. Gateway asserts not even a single undisputed fact to

demonstrate compliance. Instead, Gateway tries to evade NRI s claims in three intertwined ways.

First, Gateway argues that it is saved by contract technicalities. Gateway says it never received

formal notice of some acts of noncompliance and that it either effectively cured other noncompliant

acts or tried really hard to cure the others. For instance, when the franchise agreement term expired

on at the end of 2019, Gateway just could not find a way to remove the Noble Roman s Pi a signs

from its storefronts until weeks after it began selling its own pizza and breadsticks from the same

spaces that for a decade had ho sed Noble Roman s brand prod cts. It was mid-winter, and the

signs are heavy after all, says Gateway, while failing to mention the indoor signs, consisting of

decals or otherwise lightweight materials. In any event, Gateway had known for months, indeed

years, the exact date its relationship with NRI was coming to an end. It just chose to act slowly.

Second, Gateway argues that the pizza guy surely could not have been that bothered or that

damaged by the t o minor iss es of noncompliance complained of by NRI in this case. Gateway

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is not the standard bearer for a franchisor s right to legally protect its business and its trademarks.

But that discussion is for another day whether NRI was damaged in this case and the extent of

its damages are not questions that can be resolved on summary judgment without designation by

Gateway of a single undisputed fact.

Third, Gateway takes the compliance issue and buries the lede with a counterclaim.

Gateway claims NRI committed an actionable abuse of process when two of its executive officers

made mention of the chestn t perils of litigation (the inc rrence of attorne s fees and the risk of

burdensome discovery) during a monthslong business negotiation with their counterparts at

Gateway concerning the very acts of noncompliance that ultimately gave rise to this suit. As to

the counterclaim, NRI and Gateway agree that the material facts comprised of a handful of email

messages, two letters, and a few voicemail messages are undisputed and have all been designated.

Gate a adds j st t o other disp ted facts, neither of which is a fact at all: (1) NRI s p rpose

in pursuing this lawsuit and (2) hether the la s it as other ise proper nder the

circ mstances. Gate a s theory is that NRI s real intent in negotiations was to coerce Gateway

to e tend the parties franchising relationship. This is an empty theory espoused to salvage an

otherwise bad claim; it is not a disputed fact. Contrary to Gate a s creative attempt at

clair o ance, NRI s tr e intent, both then and now, is evidenced by the filing of this lawsuit more

than ten months after expiration of the franchise term, when the Noble Roman s pizza and

breadsticks had long since been replaced by Luke s o n pizza and breadstick offerings, and

extension of the franchise term was both inconceivable and impossible. Following Gate a s

novel theory on the paramount factors of process abuse would soon find court dockets overflowing

with these claims as commercial parties that failed in pre-suit negotiations would use abuse of

process as a fee-shifting end run around the American Rule.

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II. STATEMENT OF MATERIAL FACTS IN DISPUTE AS TO GATEWAY S

CROSS-MOTION FOR SUMMARY JUDGMENT

A. Gateway Admits Selling its own Food from he Noble Roman s Co n er

1. During the term of the Franchise Agreement, Gateway started its own pizza concept

at a non-NRI franchised L ke s store, that it had planned to open as a Noble Roman s. [Dkt. 71-

1 at 5-6 (Branson Dep. at 11:5-12:2).]

2. Concerned with compliance, NRI visited the non-NRI franchised store with the

L ke s pi a concept and fo nd:

they were using the same warmers that we use, putting their TV monitors for
their menu boards right above those warmers like our updated concept, our updated
look looked like, the very same ovens that we utilize. They had used photography
for their menu board that was our photos of our product. They had some same
wording, descriptive wording, on their menu board, such as, we call one of our
pizzas The Works; and they also copied that. Even the patterns in which they placed
their pepperoni on their individual pizzas was copied from ours. Their Works
ingrediants were copied from ours. As I mentioned earlier, in our opinion, those
are some serious damages.
[Dkt. 71-1 at 6 (Branson Dep. at 12:3-19).]

3. At franchised locations, Gateway also now admits to selling its own sandwiches

from racks at the Noble Roman s co nter for a period of appro imatel si months, hile the

Franchise Agreement was in effect. [Dkt. 67-2 at 3.]

4. The food offerings sold from the Noble Roman s co nter displa s ithin L ke s

stores included pizza, breadsticks, and breakfast sandwiches. [Dkt. 71-2 at 16-17 (Collins Dep.

71:25-72:24) and Dkt. 67-14 at 4.] Specifically, Gateway sold its own cheeseburgers, meatloaf,

p lled pork, chicken, grilled chicken, and spic chicken sand iches from the Noble Roman s

counter. [Dkt. 67-2 at 3.] The Noble Roman s brand offerings similarl incl ded sand iches of

the breakfast variety and hamburgers. [Dkt. 71-2 at 16-17 (Collins Dep. 71:25-72:24); Dkt. 67-14

at 4; and Dkt. 71-3 at 23 (Mobley Dep. at 67:10-16).]

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5. Gateway purchased warmer racks pursuant to the Franchise Agreement. [Dkt. 71-

2 at 5 (Collins Dep. at 51:14-17).] Specifically, NRI spec d NEMCO warmer equipment for all of

its Noble Roman s Pizza operations within the L ke s stores. [Dkt. 71-1 at 13 (Branson Dep. at

33:12-13).]

6. The warming racks are surrounded by distinctive Noble Roman s signage to

comprise the overall Noble Roman s co nter. Digital menu boards displayed on flat screen

televisions above the racks show Noble Roman s logos, trademarks, and photos of Noble Roman s

product offerings. [Dkt. 71-2 at 6-8 (Collins Dep. at 52:9-54:6).] The food photographs were

staged and taken by NRI for its use in marketing. [Dkt. 71-1 at 18-19 (Branson Dep. at 38:22-

39:16).] Noble Roman s co nter signs, sometimes in the form of a decal, are mounted below the

racks. [Dkt. 71-2 at 6-7 (Collins Dep. at 52:9-53:12).]

7. Exhibit 35 to Terr Faraba gh s deposition contains a photo showing a Noble

Roman s counter display within a L ke s convenience store, where Gateway had placed its own

sandwiches in the rack for sale alongside NRI s prod cts. [Dkt. 71-4 at 5-9 (Farabaugh Dep. at

21:22-25:5; Exhibit 35 at 76-77).]

8. The Franchise Agreement prohibited Gateway from placing its own sandwiches in

racks at the Noble Roman s counter. See Sections VII(C)(2) [Dkt. 67-5 at 8]; VIII(A) [Dkt. 67-5

at 9]; VIII(D) [Dkt. 67-5 at 9]; VIII(E)(1) [Dkt. 67-5 at 10]; VIII(E)(2) [Dkt. 67-5 at 10]; IX(C)(1)

[Dkt. 67-5 at 13]; and X(C)(1)(a) [Dkt. 67-5 at 15-16].

9. Gateway blindly and unilaterally concludes that it preempted customer confusion

by wrapping its food in different colored paper and, incomprehensibl , beca se the L ke s food

was placed on lower racks. On the contrary, Mobley testified that customer confusion was likely:

We were damaged beca se the re selling non-Noble Roman s appro ed prod cts,
nder the name Noble Roman s. There as no distinction, in the c stomer s mind,

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with anything, regardless of the packaging, beca se it as in the Noble Roman s

section of the convenience store, where they had a license agreement or a franchise
agreement to sell Noble Roman s.

[Dkt. 71-3 at 24 (Mobley Dep. at 68:3-10).]

10. Mobley wrote to Gateway on July 15, 2019 to advise Gateway of the sandwich

placement violation and an unauthorized use of NRI s food photography. [Dkt. 67-9 at 1-2.]

11. More than a month then passed. Gate a s attorne , Pa l Velligan, responded on

August 26, writing as follows:

[Dkt. 67-13 at 1.]

12. As to placing the L ke sand iches in the Noble Roman s co nter displa , Velligan

neither references a contractual cure period nor argues that the practice was permissible under the

Franchise Agreement (as Gateway argues now). Instead, he contended that NRI s Tro Branson

appro ed the practice. [Id.] Branson strongly denies this. [Dkt. 71-1 at 26 (Branson Dep. at

57:9-21).] Mobley also denies this. [Dkt. 71-3 at 17 (Mobley Dep. at 61:6-23).] His citation to

Sec. XVII(3)(n) is confusing nothing in that provision allows a cure by way of consent given to

mis se NRI s trademarks, as Velligan appears to allege.

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13. Mobley wrote back to Velligan on August 29 disputing that Noble Roman s ga e

permission to Gateway to comingle the sandwiches. [Dkt. 67-12 at 1.]

14. So Velligan changed his tune. In his next letter, dated September 4, Velligan drops

reference to Branson s acq iescence, and instead relies pon t o provisions of the Termination

section of the Franchise Agreement, one allows the franchisee 30 days to cure a failure to comply

with standards and specifications, and the other allows 5 days to cure any unauthorized use of

marks or impairment of NRI s goodwill. [Dkt. 67-18.] Velligan never states when the cure

occurred, or within which time period it occurred. [Id.]

B. Gateway Admits it Failed to De-Brand its Stores upon Expiration of the Term

15. After expiration of the franchise agreement term, Gate a left Noble Roman s

signs affixed to fifteen (15) of its Luke convenience store locations for a period of at least two

weeks. [Dkt. 67-14 at 3.] Gateway implies in its brief that it was too tough to take them down

because it was mid-winter (and a third-party was needed to assist). [Dkt. 71-2 at 16 (Collins Dep.

71:8-20) and Dkt. 68 at 3.] Gateway fails to explain why the signs could not have been covered.

[Id.]

16. As to the interior signs including those surrounding the racks at the Noble Roman s

counter, Collins testified at a deposition that these signs were removed by January 8, 2020. [Dkt.

71-2 at 15-16 (Collins Dep. 70:25-71:7).]

17. Photographs show interior signs still up at three Luke convenience store locations

as of January 11, 2020. [Dkt. 71-4 at 16-22 (Farabaugh Dep. 69:11-75:18; Exhibit 19A at 29, 33,

37, 38).]

18. While e terior and interior Noble Roman s signs remained in place and o ertl

visible to customers, Gate a la nched the sale of L ke s brand food prod cts of the same type

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and identified under the same SKU, as the Noble Roman s products that Gateway sold days earlier

as an NRI franchisee [Dkt. 71-2 at 16-18 (Collins Dep. 71:25-73:12).] These products included

pizza, breadsticks, breakfast burritos, breakfast sandwiches, biscuits and gravy, and nacho cheese

sauce. [Id.]

C. The Franchise Agreement Precluded Ga e a s Cond c

19. The Franchise Agreement provides that, Franchisor, as the res lt of the

expenditure of time, skill, effort and money, has developed and owns a unique and distinctive

system relating to the establishment and operation of pizza restaurants featuring pizza, breadsticks

and other related food items . [Dkt. 67-5 at 1.] The Franchise Agreement defines the

con enience store resta rant operation s stem to incl de distinctive interior menu and counter

displays. [Dkt. 67-5 at 1.]

20. Pursuant to the Franchise Agreement and subject to its terms and conditions, NRI

granted Gateway a right, license, and privilege to use its trademarks (therein defined) and the

restaurant operation system in operation of a Noble Roman s Pi a in conj nction ith and as part

of its facilities. [Dkt. 67-5 at 2.]

21. Gateway agreed to, amongst other things,

(a) faithfully, honestly, and diligently perform all obligations of the Franchise

Agreement and continually exert best efforts to promote and enhance the business of Noble

Roman s Pi a [Dkt. 67-5 at 8, sec. VII(C)(2),]

(b) maintain niformit among all of the nits of Noble Roman s Pi a and

compl ith the Noble Roman s resta rant standards and specifications relating to the

operation and appearance of the restaurant [Dkt. 67-5 at 9, sec. VIII(A),]

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(c) compl ith Noble Roman s standards and specifications relating to the

purchase of all food and beverage items [Dkt. 67-5 at 9, sec. VIII(D),]

(d) sell or offer for sale all menu items, products, and services in the manner

and style prescribed by Noble Roman s [Dkt. 67-5 at 10, sec. VIII(E)(1),]

(e) sell and offer for sale only menu items, products, and services that were

e pressl appro ed for sale in riting b Noble Roman s [Dkt. 67-5 at 10, sec. VIII(E)(2),]

(f) se Noble Roman s Marks onl in connection with the operation of the

Noble Roman s Pi a resta rant and onl ith the e press ritten consent of Noble

Roman s [Dkt. 67-5 at 13, sec. IX(C)(1),] and

(g) refrain from diverting or attempting to divert any business or customer of

Noble Roman s Pizza to any competitor and refrain from doing or performing any other

act inj rio s or prej dicial to the good ill associated ith the Noble Roman s Marks or its

franchise restaurant system [Dkt. 67-5 at 15-16, sec. X(C)(1)(a).]

22. The Franchise Agreement further provided that Gateway shall be deemed in

material default and NRI may, at its option, terminate the agreement if Gateway misuses or makes

an na thori ed se of NRI s marks or other ise materiall impairs the good ill; pro ided that

Gateway shall be entitled to notice of such event of default and shall have five days to cure. [Dkt.

67-5 at 23, sec. XVII(3)(n).]

23. The breaches associated ith Gate a s fail re to de-brand, however, are breaches

of the post-termination covenants which provide no notice or cure period. [Dkt. 67-5 at 24-26,

sec. XVIII.]

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III. STANDARD OF REVIEW

S mmar j dgment is onl appropriate if there is no iss e as to an material fact.

Militello v. Cent. States, Southeast & Southwest Areas Pension Fund, 360 F.3d 681, 685 (7th Cir.

2004). To prove that no genuine issue as to any material fact exits, the moving party must point

to evidence in the pleadings and other record materials, s ch as depositions, ans ers to

interrogatories, admission, and affida its. Balderston v. Fairbanks Morse Engine Div. of Coltec

Indus., 328 F.3d 309, 320 (7th Cir. 2003) (citing Fed. R. Ci . P. 56(c)). Co rts do not e al ate

the weight of the evidence, judge the credibility of witnesses or determine the ultimate truth of the

matter[.] Jewett v. Anders, 521 F.3d 818, 821 (7th Cir. 2008). The Co rt m st make all

inferences of fact in favor of the non-mo ing part . Wis. Educ. Ass n Council v. Walker, 705

F.3d 640, 645 (7th Cir. 2013).

IV. ARGUMENT

A. Gateway Breached the Franchise Agreement when it comingled L ke s

Sandwiches with NRI s Products in he Noble Roman s Counter Display

Gateway first contended that NRI approved the selling of competing food offerings from

the Noble Roman s co nter displa s at L ke s con enience stores. [Dkt. 67-13 at 1.] In fact, this

imagined consent serves as the basis of Gate a attorne Pa l Velligan s August 26 letter which

comprised part of the pre-suit negotiations that Gateway now uses to support its abuse of process

counterclaim. [Id.] Just as Velligan then had no reliable proof of NRI s consent, Gateway has

none now. So, Gateway pivoted.

Gateway now contends that, because its sandwiches ere clearl marked (in Gate a s

mind) with Luke labels and because the Franchise Agreement does not contemplate and

specificall precl de the act of placing L ke s brand sand iches in the Noble Roman s displa ,

there was no violation. [Dkt. 68 at 18.] This position is as absurd as it is erroneous.

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Gateway purchased the warmers pursuant to the Franchise Agreement. [Dkt. 71-2 at 5

(Collins Dep. at 51:14-17).] Digital menu boards on flat screen televisions displayed Noble

Roman s prod cts abo e the armers at some stores. [Dkt. 71-2 at 6-8 (Collins Dep. at 52:9-

54:6).] At other stores, Noble Roman s co nter signs appeared below the warmers. [Dkt. 71-2 at

6-7 (Collins Dep. 52:9-53:12).] Below is the Noble Roman s counter display within a L ke s

convenience store, where Gateway had placed its own sandwiches with the Noble Roman s

branded products:

[Dkt. 71-4 at 5-9 (Farabaugh Dep. at 21:22-25:5; Exhibit 35 at 76-77).]

It is beyond any reasonable dispute that the warmers were an integral part of the Noble

Roman s Pi a counter display comprising the restaurant operation system and marks that

Gateway acknowledged were distinctive to NRI. [Dkt. 67-5 at 1.] Gateway contractually agreed,

amongst other promises, to use the system of operation (1) only in connection with the operation

of the Noble Roman s Pi a resta rant and onl ith the e press ritten consent of NRI [Dkt. 67-

5 at 13, sec. IX(C)(1)], (2) only for the sale of menu items, products, and services that were

expressly approved for sale in writing by NRI [Dkt. 67-5 at 10, sec. VIII(E)(2)], and (3) faithfully,

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honestly, and diligently in the enhancement of the Noble Roman s Pi a business [Dkt. 67-5 at 8,

sec. VII(C)(2)]. Gateway further agreed to refrain from diverting or attempting to divert any

b siness or c stomer of Noble Roman s Pi a to an competitor and refrain from doing or

performing any other act injurious or prejudicial to the goodwill associated with the NRI marks or

its franchise restaurant system. [Dkt. 67-5 at 15-16, sec. X(C)(1)(a).] Wrapping competing

sand iches in different paper and selling them from the Noble Roman s co nter falls oef ll

short of Gate a s foregoing obligations and indeed constit tes a breach of them.

After abandoning the argument that NRI consented, and vulnerable to mounting a defense

based on paper sandwich wrapping, Gateway next contends that NRI never identified in discovery

an specific pro ision of the Franchise Agreement breached by the placement and sale of

competing food prod cts from the Noble Roman s displa . Gate a could have asked NRI to

supplement its discovery if any of its answers created confusion as to what NRI contends that

Gateway did wrong. Gateway never did so because it never actually misunderstood the basis of

NRI s contract claims. NRI and Gateway have been arguing about this since 2019.

Not onl did Gate a clearl nderstand NRI s contract claims, Gate a admitted that it

failed to comply. In the September 4, 2019 letter, Gate a s Velligan wrote to NRI s Mobley

with respect to sand ich placement iolations ad ising that the contended iolations raised in

your letter have been corrected pursuant to Sec. XVII(3)(e) and XVII(3)(n) of the Master Franchise

Agreement. [Dkt. 67-18.] To reference cure timeframes, Velligan must have known that what

as happening in Gate a s stores constit tes the misuse or misapplication of NRI s marks and

material impairment of the goodwill associated with them. [Dkt. 67-5 at 22-23.]

The Franchise Agreement indeed does not specifically contemplate L ke s labeled

sand iches from being sold from the Noble Roman s Pi a co nter displa . Incidentally, the

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agreement also does not specifically prohibit Gateway from affixing a marquee above the pizza

and breadstick co nter proclaiming B L ke s Food Instead of Noble Roman s Food! Wo ld

Gateway contend that to be a compliant act? Hyperbole aside, both acts would violate the core

principle of the franchise partnership a franchisor, in good faith, entrusts use and protection of

its marks and operational know-how to the franchisee for the benefit of a successful business

enterprise serving as a common goal. Here, Gateway violated that trust by failing to comply with

both the letter and intent of the Franchise Agreement.

B. Gateway was not Entitled to a Default Notice and Cure Period and does not
know when it stopped placing its Food in he Noble Roman s Displa

On the one hand, Gateway argues from both sides of its mouth that nothing in the contract

precl ded the selling of competing food prod cts from Noble Roman s Pi a displa co nters

while also arguing NRI failed to identify in discovery which provisions of the contract were

breached. On the other hand, Gateway purports a mastery of the contract by arguing that it stopped

selling its own sand iches from the Noble Roman s Pi a displa s d ring a contractual cure

period window, so it is entitled to summary judgment.

However, there is no s ch contract al c re period applicable to Gate a s breaches of the

Franchise Agreement. Gateway argues it was entitled to five-da s notice and an opport nit to

cure under section XVII(3)(n) of the Franchise Agreement. Section XVII(3) is the mechanism by

which NRI could have called for termination of the Franchise Agreement based on a material

default. [Dkt. 67-5 at 21-24.] [A] declaration of defa lt is a condition precedent not to s ing for

a breach of contract but to being authorized to terminate the contract immediately without liability

to the other part . See Allan Block Corp. v. Cnty. Materials Corp., 512 F.3d 912, 919 (7th Cir.

2008) (citing Mor-Cor Packaging Products, Inc. v. Innovative Packaging Corp., 328 F.3d 331,

333 (7th Cir. 2003)). By way of illustration, pursuant to section XVII(3)(n), if NRI had wanted to

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terminate the agreement beca se of Gate a s breaches, NRI would have had to give Gateway

five-da s notice and an opport nit to c re prior to termination. NRI did not terminate the

contract, but instead sued for breach of contract which requires neither notice nor a cure period.

Therefore, Gate a s claim that it c red ithin fi e-days is of no consequence.

Assuming arguendo that a notice and cure period applied to Gate a s breaches of the

Franchise Agreement, with one broad stroke Gateway declares the undisputed evidence is that

hen Noble Roman s pro ided notice to Gate a of the alleged contract iolation, Gate a

ceased placing the sandwiches in the warmers within fi e da s. [Dkt. 68 at 19.] Gateway is not

the arbiter of what is disputed, and what is not. Mobley discussed the sandwich placement

violation in a letter to Gateway dated July 15, 2019. [Dkt. 67-9 at 1-2.] Velligan responded to

Mobley, but not until August 26. [Dkt. 67-13 at 1.] In his response, Velligan represented that

Gateway ceased the unauthorized use of NRI s photos within five days but curiously made no

mention of when Gateway ceased placing its food in the Noble Roman s Pi a co nter displa s.

[Id.] Instead, he asserted that NRI consented to what Gateway was doing. [Id.] It is easily

inferable that Gateway actually did not stop placing its food within the Noble Roman s displa on

July 15, or even in July at all. At that time, Gateway did not even view the act it had admittedly

sold its o n food from the Noble Roman s co nter since Jan ar 2019 as a breach of the

Franchise Agreement. [Dkt. 67-2 at 3.]

This inference is reinforced by what happened next. Mobley wrote back to Velligan on

August 29, disputing that NRI ever permitted Gateway to comingle the sandwiches. [Dkt. 67-12

at 1.] Velligan responded on September 4 that it is m understanding that the contended

iolations raised in o r letter ha e been corrected p rs ant to Sec. XVII(3)(e) and XVII(3)(n).

[Dkt. 67-18 at 1.] Again, Velligan is silent as to hen Gate a accomplished the p rported c re .

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The timing of the letter also begs the question why send letters in August and September if the

sand iches ere remo ed from the Noble Roman s counter displays in July? If the sandwiches

were not removed by July 20 NRI contends they were not then Gateway did not cure the

violations pursuant to the contract provisions relied upon by Velligan in 2019, and by Gateway

now. [Dkt. 67-18 at 1 and Dkt. 68 at 19.] See Sec. XVII(3)(e) and XVII(3)(n) of the Franchise

Agreement. Fifty-one da s passed from Moble s letter on J l 15, to Velligan s iolations ha e

been corrected letter on September 4.

C. The Post-Termination Covenants do not Require Default Notice or Provide a

Cure Period

Gate a failed to remo e the Noble Roman s Pi a marks and to other ise de-brand the

L ke s con enience stores of their affiliation ith NRI pon e piration of the Franchise

Agreement. Gateway admits this but argues it did not se the e terior signs in an meaningf l

a . [Dkt. 68 at 19-20.] The ambiguity of this purported deflection notwithstanding, Gateway

altogether fails to mention its use of NRI s interior signs. The duration of the violation is also in

q estion. Gate a s Tom Collins testified that the interior signs were removed by January 8,

2020. [Dkt. 71-2 at 15-16 (Collins Dep. 70:25-71:7).] But photographs show interior signs still

in use at three L ke s store locations as of January 11, 2020. [Dkt.71-4 at 16-22 (Farabaugh Dep.

69:11-75:18; Exhibit 19A at 29, 33, 37, 38).]

In any event, it is immaterial whether Gate a s misuse was meaningf l beca se neither

the Franchise Agreement nor the Lanham Act prescribes such a standard, or even requires

materiality for a breach to be violative. See Serenity Springs v. LaPorte Cnty. Convention and

Visitors Bureau, 986 N.E.2d 314, 321 (Ind. Ct. App. 2013) (in order to prevail on a trademark

infringement case, a plaintiff must prove (1) a protectable ownership interest in the mark, and (2)

the use of the mark is likely to cause consumer confusion). Instead, Gate a s an meaningful

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se submission is one in a series made during this case intended to scoff at the value NRI places

on its restaurant and operations system, be it the counter arrangement, signage, photos, packaging,

or food product offerings.

Perhaps Gateway al es the meaningf lness of NRI s restaurant system more than it would

like to admit. NRI discovered that Gateway intended to copy the Noble Roman s convenience

store pizza operation. [Dkt. 71-1 at 5-6 (Branson Dep. at 11:5-12:19).] Gateway used NRI s food

photography and processes at a non-franchised location while selling its own pizza concept. [Dkt.

71-1 at 5-6 (Branson Dep. at 11:5-12:2).] At this location, Gateway used the same warmers and

ovens as NRI with monitors serving as menu boards displaying NRI s food photography directly

above the warmers, mimicking NRI s restaurant concept. [Dkt. 71-1 at 6 (Branson Dep. at 12:3-

19).]

Then, after the franchise term e pired, Noble Roman s Pi a signs remained affixed to the

exteriors of fifteen (15) L ke s con enience stores that formerl contained NRI franchises, for at

least two weeks while interior counter signs also remained in place at some of these locations.

[Dkt. 71-2 at 15-16 (Collins Dep. at 70:25-71:7) and Dkt. 67-14 at 3.] All the while, Gateway

launched its own brand of food offerings of the very same type, even identified b L ke s under

the same SKU, as the Noble Roman s prod cts it sold days earlier as an NRI franchisee. [Dkt. 71-

2 at 16-18 (Collins Dep. 71:25-73:12).]

Beyond the fig of an unsupported meaningful se exception, Gateway argues it was

entitled to five-da s notice and an opport nit to c re nder section XVII(3)(n) of the Franchise

Agreement for its post-termination failure to de-brand. As discussed above, section XVII(3) is the

mechanism by which NRI during the term of the Franchise Agreement, could have called for

termination based on a material default. [Dkt. 67-5 at 21-24.] The breaches associated with

17
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Gate a s fail re to de-brand, however, are breaches of the post-termination covenants. [Dkt. 67-

5 at 24-26, sec. XVIII.]

Termination is a condition precedent to the post-termination covenants of Sec. XVIII,

which governs the de-branding issue at hand. See Allan Block Corp., 512 F.3d at 918. Pursuant

to the plain language of Sec. XVIII, the post-termination covenants do not come ali e until the

agreement actually terminates. [Dkt. 67-5 at 24-26.] See Allan Block Corp., 512 F.3d at 918.

Accordingly, these post-termination co enants are not s bject to the proced ral and remedial

provisions of the original contract. Allan Block Corp., 512 F.3d at 918 ( if a part iolates a post-

termination co enant not to compete, the co enantee doesn t ant, and can t be pres med in the

absence of language in the covenant itself to agree to, the co enanter s ha ing a grace period in

hich to attempt to c re his iolation. ). Thus, Gate a s pleas for a five-day notice and cure

period to de-brand must fail.

D. Ga e a s Use of NRI s Marks was Confusing

The Lanham Act provides the holder of a mark with a cause of action against infringers.

15 U.S.C.A. §1125(a); Serenity Springs, 986 N.E.2d at 320. To prevail on a trademark

infringement claim brought under the Lanham Act, NRI must prove (1) that it has a protectable

ownership interest in the mark, and (2) that Gateway s use of the mark is likely to cause consumer

confusion.1 Id at 321. Gateway does not dispute that NRI has a protectable ownership interest in

the marks at issue.

Turing to the second element, the Seventh Circuit uses seven factors to determine whether

consumers are likely to be confused: (1) similarity between the marks in appearance and

suggestion; (2) the similarity of the products; (3) the area and manner of concurrent use; (4) the

1
There are no notice and cure periods contemplated by the Lanham Act in other words, the contractual notice and
c re periods of the Franchise Agreement are inapplicable to NRI s Lanham Act claims.

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degree and care likel to be e ercised b cons mers; (5) the strength of plaintiff s mark; (6) an

act al conf sion; and (7) the intent of the defendant to palm off his product of that of another.

AutoZone, Inc. v. Strick, 543 F.3d 923, 929 (7th Cir. 2008). While no single factor is dispositive,

s all the similarit of the marks, the defendant s intent, and act al conf sion are partic larl

important. Id. Whether cons mers are likel to be conf sed abo t the origin of a defendant s

products or services is ultimately a question of fact, that question may be resolved on summary

j dgment onl if the e idence is so one-sided that there can be no doubt about how the question

sho ld be ans ered. AutoZone, Inc., 543 F.3d at 929 (quoting Packman v. Chicago Tribune Co.,

267 F.3d 628, 643 (7th Cir. 2001)) (quoting Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d

169, 171 (7th Cir. 1996))).

AutoZone factors 1, 2, and 3 are each satisfied here because Gateway used NRI s actual

marks by selling off-brand food commingled ith the Noble Roman s offerings, on Noble

Roman s arming racks, ithin Noble Roman s co nter displa s, nder and abo e Noble

Roman s signage, for a period of approximately six months [Dkt. 67-2 at 3 and Dkt. 71-2 at 6-8

(Collins Dep. 52:9-54:6).] Specifically, Gateway sold cheeseburgers, meatloaf, pulled pork,

chicken, grilled chicken, and spicy chicken sandwiches. [Dkt. 67-2 at 3.] The Noble Roman s

brand offerings similarly included sandwiches of the breakfast variety and hamburgers. [Dkt. 71-

2 at 16-17 (Collins Dep. 71:25-72:24); Dkt. 67-14 at 4; and Dkt. 71-3 at 23 (Mobley Dep. at 67:10-

16).] Further, Gateway kept p Noble Roman s signs both inside and o tside of its L ke s

convenience stores after expiration of the Franchise Agreement term while launching the sale of

the same product varieties it had sold as a NRI franchisee, including, pizza, breadsticks, breakfast

burritos, breakfast sandwiches, biscuits and gravy, and nacho cheese sauce. [Dkt. 71-2 at 15-17

(Collins Dep. 70:25-71:7 and 71:25-72:24) and Dkt. 67-14 at 4.]

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The Lanham Act protects the o ner s abilit to enter a prod cts market in hich it does

not no trade b t into hich it might reasonabl be e pected to e pand in the f t re. CAE, Inc.

v. Clean Air Engineering, Inc., 267 F.3d 660, 681 (7th Cir. 2001). The Lanham Act does so by

rejecting closel related prod cts that o ld reasonabl be tho ght b the b ing p blic to come

from the same so rce or be affiliated ith . . . the trademark o ner. Id. at 679 (quoting Sands,

Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 958 (7th Cir. 1992)). NRI offers a diverse

menu of Noble Roman s prod cts running the gamut from breadsticks and pizza to biscuits and

gravy, breakfast burritos, breakfast sandwiches and hamburgers. [Dkt. 71-2 at 16-17 (Collins Dep.

at 71:25-72:24); Dkt. 67-14 at 4; and Dkt. 71-3 at 23 (Mobley Dep. at 67:10-16).] While

Gateway s sand iches ma have varied slightly versus those being sold by NRI, the risk of

confusion remains given the breadth and scope of NRI s product offerings sold from the same

display area.

AutoZone factors 4 and 5 are also met. Any customers visiting a Noble Roman s branded

co nter ithin a L ke s con enience store is inherentl exercising care to purchase authentic NRI

products. The strength of the NRI s marks is established through its registration and consistent

use for over forty years. [Dkt. 71-5 at 2 (Mobley Aff.).]

With respect to factor 6, Gateway argues there is no evidence of actual confusion. [Dkt.

68 at 22.] But evidence of actual confusion is not required. Even where there is no such evidence,

the Seventh Circuit has held that to eigh onl slightl in fa or of a finding that no likelihood

of confusion existed. CAE, Inc., 267 F.3d at 685-686. It is up to Gateway as the alleged infringer

to prove that no likelihood could ever arise. Id. (emphasis added). This is a burden that Gateway

has not (and cannot) meet. Further, Seventh Circuit courts have found that where a holdover

franchisee, like Gateway, ses the franchisor s marks, the likelihood of conf sion is ine itable.

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Dunkin Donuts Franchised Restaurants LLC v. Elkhatib, No. 09C1912, 2009 WL 2192753, at *5

(N.D. Ill. July 17, 2009) (quoting Dunkin Donuts, Inc. v. N. Queens Bakery, Inc., 216 F.Supp.2d

31, 44 (E.D.N.Y. 2001)).

Gateway spends most of its brief arguing under AutoZone factor 7 that it could not have

intended to palm off its products as Noble Roman s beca se the ere rapped ith different

labels. Regardless of the labeling on the food tucked into a rack within a counter display

embla oned ith Noble Roman s logos and motifs, it is the counter display itself the area

drawing a customer to visit, view, and select products for purchase that matters most. [See Dkt.

71-4 at 5-9 (Farabaugh Dep. at 21:22-25:5; Exhibit 35 at 76-77).] Gateway could have placed its

prod cts an here in the L ke s stores that it o ns and controls. Perhaps a L ke s sand ich

display could have been constructed. But instead, the food was commingled within the Noble

Roman s displa co nter. In fact, this evidence may be viewed by a fact-finder as Gateway s

deliberate effort to cause confusion. Gateway designates its owner Tom Collins s self-serving

testimony that a customer would not be confused beca se of the L ke s labeling. If this evidence

is definitive (it is not), then so too is Mobley s testimon that:

We ere damaged beca se the re selling non-Noble Roman s appro ed prod cts,
nder the name Noble Roman s. There as no distinction, in the c stomer s mind,
with anything, regardless of the packaging, beca se it as in the Noble Roman s
section of the convenience store, where they had a license agreement or a franchise
agreement to sell Noble Roman s.

[Dkt. 71-3 at 24 (Mobley Dep. at 68:3-10).]

The foregoing application of AutoZone factors 1 through 7 demonstrates a reasonable

inference, if not the only inference, that customers were likely to be confused b Gate a s acts

of selling products similar to those of Noble Roman s, from Noble Roman s displays, and of

selling prod cts the same as those of Noble Roman s from stores adorned with Noble Roman s

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signs after expiration of the Franchise Agreement term. In any case, resolution of this operative

question is not so one-sided that it is resolvable on summary judgment as Gateway contends.

V. THE NRI DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT ON

ABUSE OF PROCESS COUNTERCLAIM

Gateway rattles the floodgates by proposing a vast extension of abuse of process law

wrought not from legal precedent but by way of a ictor lap. Gate a s brief ne er stra s far

from the Muyelle v. Wine & Canvas case, tr mpeting its present co nsel s ictor in an ab se of

process claim tried to a jury against an attorney who formerly represented NRI (including for a

short time in the instant case) and who has since become subject to attorney discipline. But as

Gateway itself acknowledges, other than the trial attorneys from Wine & Canvas finding

themselves pitted here again for a brief time, the comparison of the two cases is inapposite. And

despite devoting three full paragraphs of its introduction to Wine & Canvas a case that is, for

reasons never established, described by Gateway as partic larl rele ant and sef l precedent

and referencing the case throughout its brief, Gateway never describes the facts, its procedural

history, the evidence which supported a j r s finding of process ab se, or the basis of the appellate

court decision (which is also cited by Gateway).

When it comes down to substance, Gateway actually anchors its abuse of process claim on

two prerequisite findings. First, Gateway asks the Court to determine that Gate a s

noncompliance with the Franchise Agreement s terms was actually just no big deal to NRI; that

NRI feigned much ado of nothing and was not really that damaged. In other words, Gateway

contends, without any support, that NRI knew it had no real legal claim for recovery and therefore

postured in bad faith during negotiations. These are not facts; the are Gate a s theories.

The second prerequisite finding Gateway requests to be made centers on NRI and its

principals purpose in pre-suit negotiations with Gateway. For this part, Gateway supports its

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argument with (1) hollow speculation that NRI sought to extend its business relationship with

Gate a , and (2) Gate a s co nsel s s ccess stories from the Wine & Canvas case that follo ed

the same basic script beca se of an attorne in common. As with the first prong, perhaps even

less so, these are not facts.

On the contrary, the only material facts are constituted by the communications between the

parties which have been designated by NRI, and indeed also by Gateway. That designated

evidence cannot support a claim of abuse of process under Indiana law, and certainly not without

wildly expanding the scope of the tort to irresponsible proportions.

A. NRI s Actions were Substantively and Procedurally Proper

At the onset of their response brief Gateway agrees that, in order to prevail upon a claim

of abuse of process, it must prove the following elements: (1) an ulterior purpose; and (2) a willful

act in the use of process not proper in the regular conduct of the proceeding. Reichhart v. City of

New Haven, 674 N.E.2d 27, 30 (Ind. Ct. App. 1996). However, as its argument progresses,

Gateway conflates the two elements into a single element of ulterior purpose. By doing so,

Gateway skips a step.

Before this Court may proceed to an examination of NRI s motivation, Gateway must first

provide evidence (of which they have none) that NRI emplo ed improper process . See

Reichhart, 674 N.E.2d at 31 (citing Comfax Corp. v. North American Van Lines, Inc., 638 N.E.2d

476 (Ind. Ct. App. 1994)). With respect to this element, a defendant s intent is irrele ant here

his acts are procedurally and substantively proper under the circumstances. Comfax Corp., 638

N.E.2d at 485 (citing Groen v. Elkins, 551 N.E.2d 876, 879 (Ind. Ct. App. 1990)). Gateway

intimates through a host of conclusory statements, unsupported by a single fact, that NRI s use of

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process was not substantially proper.2 Indiana courts have found a use of process substantially

improper where there is direct evidence that a party employed improper process.

1. The legal claims filed in this lawsuit are procedurally and substantively
proper.

Gateway first argues, without any legal citation, that NRI s ol ntar dismissal of theft and

conversion claims at the outset of this lawsuit are foundational support of substantively improper

process employed by NRI. [Dkt. 68 at 27-28.]. This conclusion is contrary to governing law set

forth in the decisions of Estate of Mayer v. Lax, Inc., 998 N.E.2d 238 (Ind. Ct. App. 2013) and

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

18, 2013).

In Estate of Mayer, the underlying claims of one defendant were adjudicated by the trial

court without appeal or argument. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 257 (Ind. Ct.

App. 2013). The Estate of Mayer Court found the defendant s claims not substantively proper

because they were so legally deficient and allegedly lacking in any factual basis. Id. at 258

(emphasis added). In the instant case, there was no adjudication made on NRI s (voluntarily)

dismissed theft and conversion claims.

While the dismissed claims were never litigated, it is worth noting that Indiana s theft

statute, I.C. §35-43-4-2, very well may have supported them under Indiana law property can

include trademarks and/or markings or s mbols of identification that ma be enc mbered .

See An-Hung Yao v. State, 975 N.E.2d 1273, 1281-82 (2012). When the instant case was filed,

NRI had facts on hand to arguably support theft and conversion claims, including Gateway s

2
Gateway s failure to offer any opposition to NRI s argument that its use of process was procedurally proper operates
as a waiver. Cincinnati Ins. Co. v. Eastern Atlantic Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001) (failure to oppose an
argument permits an inference of acq iescence and acq iescence operates as a ai er ).

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admission of the na thori ed se of NRI s photograph and placement of food in the Noble

Roman s co nter displa s. [Dkt. 67-13.] NRI opted to focus its claims elsewhere.

E en if NRI s theft and con ersion claims were dismissed by an adjudication of the Court,

there still would not have been an actionable abuse of process. In Konecranes, after the court

granted the defendant s motion to dismiss two of the plaintiff s four claims, the plaintiff filed an

amended complaint containing the two surviving claims. Konecranes, Inc. v. Davis, No. 1:12-cv-

01700-JMS-MJD, 2013 WL 5701046 at *6 (S.D. Ind. October 18, 2013). The defendants then

answered and filed counterclaims for abuse of process. Konecranes, 2013 WL 5701046 at *6.

The Court found that a portion of the plaintiff s claims remained and proceeded, distinguishing

the facts of Lindsay v. Jenkins (relied upon Gateway), where there was direct evidence that the

lawsuit lacked merit and was instead brought specifically to impose costs upon the defendant. Id.

at *6 (Cf. Lindsay v. Jenkins, 574 N.E.2d 324, 326 (Ind. Ct. App. 1991)). The Konecranes Court

held that because the claims proceeded through the legal process as intended, with the defendants

filing an answer and counterclaims of their own, the plaintiff s filing of the initial complaint

including two later-dismissed claims did not constitute an abuse of process. Konecranes, 2013

WL 5701046 at *6.

NRI s filing of the complaint 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 claims ere ol ntaril dismissed, not fo nd to be meritless b this

Court.

2. The pre-suit negotiations in this case do not constitute improper process.

Because the procedural and substantive posture of the litigation does not support an abuse

of process claim, Gateway pivots to use the letters and voicemails from NRI s Paul Mobley and

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Troy Branson as direct evidence of improper process. In doing so, Gateway erroneously applies

Lindsay and by name-drops, yet again, the Wine & Canvas case. In Lindsay, process was abused

when one party admitted filing a lawsuit despite knowing his opponent was legally immune,

because defending the suit would be more costly than it was to file the complaint. Lindsay, 574

N.E.2d at 326. This confession provided the direct evidence because a frivolous suit was

knowingly filed solely for the purpose of forcing an opponent to incur litigation expenses. See

Comfax Corp., 638 N.E.2d at 485. Likewise, in Wine & Canvas, the process abuser admitted the

goal of litigation was to put the opponent out of business. Specifically, during settlement

discussions regarding trademark infringement claims, one of the Wine & Canvass representatives

said that his goal as to close [M lle s] door or [his] asshole attorne o ld close [it] for [him].

Wine & Canvass v. Muylle, 868 F.3d 534, 540 (7th Cir. 2017). Again, this was direct evidence.

In the case at bar, there is no direct evidence. The only similarity between Wine & Canvas

and the case at bar, is when the comments about litigation were made namely, during the course

of settlement discussions. Gateway colors Moble and Branson s comments by deeming them

threatening and couching them as ab si e litigation practices. Gateway is making a closing

argument, not designating disputed evidence. As to Branson, Gateway relies upon his reference

to critical or serio s iss es and his in itation to a ert a time and monetar cons ming

situation. B t Gate a s fa orite piece of e idence is an A g st 21, 2019 oicemail message,

d ring a portion of hich Branson (based on Gate a s transcription) states:

Pa l has offered o a er fair settlement and e need to kno if that s hat

o re going to accept or if e need to p rs e this legall and start r nning p the
bill. It s going to be costl and both the franchise agreement and Lanham Act are
er clear in that o ll pa o r legal fees, so please let me kno .

[Dkt. 67-11.]

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As to Moble , Gate a relies on (1) an email here Moble calls Gate a s violations

major , (2) a proposed settlement hereb there is no monetar compensation b t the franchise

term is extended by three years and later in negotiations, by four years, (3) a letter wherein Mobley

rites that NRI ill p rs e all legal remedies available to it, which includes any legal fees for

p rs ing its rights and protecting its franchise, and a later letter where Moble s describes a long

period of disco er to determine damages hat o ld incl de interrogatories of e er one in

your organization with knowledge of its activities in order to determine all the facts. That is, in

fact, it. [See Dkt. 68 at 10-12.] There is nothing else Gateway designates or ever could designate.

The statements designated by Gateway are a far cry from admitting a frivolous lawsuit would be

filed just to force the incurrence of defense costs (as in Lindsay) and from a statement that the goal

of a lawsuit was to put an opponent out of business (as in Wine & Canvas).

Speaking of Lindsay, Gate a s brief is desperatel riddled ith unilateral references to

Moble and Branson negotiating despite a lack of alid claims. [Dkt. 68 at 26]. The application

is both erroneous and irrelevant. In Lindsay, there was an evidentiary admission that the la s it s

frivolity was of no matter to the party that filed it. There is no such evidence here. On the contrary,

the reader of this brief is now 27 pages deep in NRI s con iction as to the merits of its claims.

NRI had the same belief in its claims pre-suit, and for good reason. When Mobley wrote his

August 29 letter (one of the principal pieces of evidence upon which Gateway relies), NRI already

had valid claims. By that date, Gateway had admitted to the una thori ed se of NRI s

photograph and to placing its food in the Noble Roman s Pi a displa s. [Dkt. 67-13.]

Turning to the attorney fees recovery references, Gateway admits that stating an intent to

pursue fees cannot support an abuse of process. See generally Reichhart, 674 N.E.2d at 33. So,

Gateway instead tries to also argue that the references to fees were threats of a knowingly invalid

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claim. To get there, Gateway argues that step 1 attorne s fees are onl a ailable nder the

Lanham Act in exceptional cases, and step 2 NRI should concede its case is not exceptional

and step 3 therefore NRI s discussion of fee recovery during the negotiations was knowingly

frivolous. [Dkt. 68 at 26.] This an absurd reach to connect the case at bar to the Lindsay case, and

also ignores that NRI s claim for fee reco er nder the Franchise Agreement lang age.

Because the undisputed facts in evidence definitively demonstrate proper process

employed by NRI, the inquiry goes no further, and s mmar j dgment is proper on Gate a s

abuse claims. See Reichhart, 674 N.E.2d at 31 (citing Comfax Corp. v. North American Van Lines,

Inc., 638 N.E.2d 476 (Ind. Ct. App. 1994)).

B. E en if NRI s In en as a Iss e, here are no Disputed Facts in Evidence

Lacking direct evidence (or any evidence, for that matter) of substantially improper

process, the inq ir ne er sho ld reach NRI s intent or p rpose. But even if it did, there is no

material evidence to dispute, only supposition by Gateway. Gateway blazes another new path of

Indiana process abuse law and paves it with a disingenuous argument that NRI s intent is e ident

because pre-s it negotiations did not foc s on an req est to compensate [NRI] for its o n

purported damages. [Dkt. 68 at 24.] Gateway ignores its own evidence. Mobley repeated that

the offer to extend the franchise term as for settlement p rposes and that if you prefer to settle

b compensating s for the damages o need to make that offer. [Dkt. 59-3 at 2 and Dkt. 59-4

at 1-2.] Whether through commercial or monetary means, Moble s statements are evidence of

an attempt to settle a dispute this is very much a legitimate purpose. See generally Metro. Hous.

Dev. Corp. v. Vill. of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir. 1980) ( The la generall

fa ors and enco rages settlements. ) (citations omitted).

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In its final and probably greatest reach of all, Gateway designates NRI s other lawsuits

against franchisees and sa s NRI hired an aggressi e attorne . Gateway neither explains the

lawsuit references nor discusses why they would ever be material fact to support an abuse of

process claim. Any inference Gateway intends to make with a wink and a nod is poor form.

Gateway presumably considers the other lawsuits as proof that NRI uses litigation for the ulterior

purpose of forcing franchises to extend their agreements. M ch to NRI s chagrin, it indeed has

been involved in many other lawsuits. But m ch to Gate a s chagrin here, none of NRI s

lawsuits, aside from a prior agreement by Gateway itself, has resulted in an extension of franchise

agreements or new agreements within the last 10 years. [Dkt. 67-15 at 2.] In any event, the

Franchise Agreement at issue expired on December 31, 2019. [Dkt. 59-2 at 1.] This case was

filed, seeking an award of damages not an extension of the franchise term, on October 14, 2020.

[Dkt. 1-2 at 11.]

Gate a s references to NRI hiring an aggressi e attorne are also leaps to an ab se of

process claim unsupported by either evidence or Indiana law. Mobley has explained that attorney

Adam Davis was retained to represent NRI, albeit for a relatively short duration of time and in

not er man la s its before NRI moved on to new counsel, partially because Davis was

aggressive but also beca se he had done done a good job representing his clients interests in

previous cases against NRI. [Dkt. 71-3 at 5, 9-10 (Mobley Dep. at 18:3-10 and 22:16-23:9).]

There is no e idence of NRI s intent or p rpose to be deri ed from its hiring of Da is.

VI. CONCLUSION

For the foregoing reasons, NRI respectf ll req ests this Co rt den Gate a s Cross-

Motion for Summary Judgment, as genuine issues of material facts exists as to all of NRI s pending

claims which preclude judgment being entered in favor of Gateway as a matter of law and grant

29
Case 1:21-cv-00307-JPH-MG Document 72 Filed 01/06/22 Page 30 of 31 PageID #: 1071

summary judgment in NRI s favor and against Gateway 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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Case 1:21-cv-00307-JPH-MG Document 72 Filed 01/06/22 Page 31 of 31 PageID #: 1072

CERTIFICATE OF SERVICE
This is to certify that on January 6, 2022, the foregoing paper was filed electronically with

the Clerk of the Court using the Co rt s Electronic Case Filing (ECF) S stem. 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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