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Case 1:21-cv-00307-JPH-TAB Document 17 Filed 03/08/21 Page 1 of 13 PageID #: 233




Plaintiff and Counterclaim

CASE NO. 1:21-CV-00307-JPH-TAB


I NDY C ORP ., 850 I NDY C ORP .,

Defendants and Counterclaim




Counterclaim Defendants.



Defendants, Gateway Triangle Corp., 7405 Indy Corp., 850 Indy Corp,

Northlake Marketing, LLC and Thomas M. Collins II, by counsel, move to dismiss

Plaintiff’s Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure and state:


This case arises out of a franchise relationship between Plaintiff Noble

Roman’s, Inc. and Defendant Gateway Triangle Corp. that terminated (after several

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extensions of the contract term) at the end of 2019. (Complaint, ¶15). After

unsuccessfully attempting to obtain a further extension of the franchise

relationship, Noble Roman’s initiated this lawsuit by filing a complaint in state

court. The defendants removed the case to federal court.

Plaintiff’s complaint alleges five claims against the five Defendants,

including: Count I for conversion and treble damages based on the Indiana’s Crime

Victim’s Relief Act; Count II for theft and treble damages based on the Indiana’s

Crime Victim’s Relief Act; Count III for breach of the franchise agreement; Count IV

for trademark infringement; and Count V for unjust enrichment.

Although there are seventy-six paragraphs covering ten pages, the complaint

makes no factual allegations of any specific wrongful conduct. Rather, the

complaint consists of myriad and repetitive conclusory statements of alleged

wrongdoing. Since it does not state plausible and specific factual allegations

supporting its legal theories, it should be dismissed for failure to state a claim.


Noble Roman’s claims should be dismissed for failure to state a claim.

Federal Rules of Civil Procedure 8 and 12 address the sufficiency of

pleadings. Taha v. International Brotherhood of Teamsters, Local 781, 947 F.3d

464, 469 (7th Cir. 2020). Under Rule 8(a)(2), a complaint “must contain ... a short

and plain statement of the claim showing that the pleader is entitled to relief, ” and

a complaint that does not meet this standard may be dismissed under Rule 12(b)(6)

for “failure to state a claim upon which relief can be granted.” Id.

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While Rule 8(a)(2) states what a pleading must show, the Supreme Court has

clarified what the Rule requires in both Twombly and Iqbal. Id. As the Supreme

Court explained in Twombly, a claim meets the requirement of Rule 8(a)(2) and

avoids dismissal if it alleges facts that show the claim is “plausible on its face.” Id.,

citing Bell Atl. Corp v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007). And “[a] claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id., citing Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

As the Supreme Court explained, “a complaint must include facts showing a

plausible—not merely ‘conceivable’—entitlement to relief.” Id., citing Iqbal, 556

U.S. at 683, 129 S.Ct. 1937. In order to state a claim to relief that is plausible on its

face, “[a]t minimum, a plaintiff is required to support its complaint with some

specific facts.” Obiefuna v. Hypertec, Inc., 451 F.Supp.3d 928, 940 (S.D. Ind. 2020),

citing Bishop v. Air Line Pilots Ass’n, Int’l, 900 F.3d 388, 397 (7th Cir. 2018). Id.,

citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007). The complaint must provide “fair notice of what the claim is,”

and the factual allegations must be enough to “raise a right to relief above the

speculative level.” Kirk v. City of Kokomo, 772, F.Supp. 2d 983, 988 (S. D. Ind.

2011), citing Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).

A complaint must contain “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation” and “‘naked assertions’ devoid of ‘further factual

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enhancement’” are not sufficient. And when a court considers a Rule 12(b)(6)

challenge, it “may reject sheer speculation, bald assertions, and unsupported

conclusory statements.” Taha 947 F.3d at 469, citing Iqbal 556 U.S. at 678. Here,

the complaint fails to give any specific facts and does not give the Defendants fair

notice of what Noble Roman’s claims are. Instead, it makes bald assertions and

unsupported conclusory statements. That is not enough.

1. Count I fails to sufficiently state a claim of criminal conversion.

In Count I, Noble Roman’s generally alleges that the Defendants committed

the criminal offense of conversion and seeks treble damages and attorney’s fees

under Indiana’s Crime Victim’s Relief Act. If a person suffers a pecuniary loss as

the result of a violation of Indiana Code article 35-43 (such as conversion or theft),

that person may bring a civil action for damages in an amount not to exceed three

times his actual damages, plus costs and attorney fees. Mizen v. State ex rel.

Zoeller, 72 N.E.3d 458, 470 (Ind. Ct. App. 2017), citing I.C. § 34-24-3-1). A victim

claiming relief under the act must prove by a preponderance of the evidence all

elements of the alleged crime, including the requisite criminal intent. Palmer

Dodge, Inc. v. Long, 791 N.E.2d 788, 791 (Ind. Ct. App. 2003). This “mens rea

requirement [ ] differentiates criminal conversion from the more innocent breach of

contract or failure to pay a debt situation that the criminal conversion statute was

not intended to cover.” Sam & Mac, Inc. v. Treat, 783 N.E.2d 760, 766 (Ind. Ct.

App. 2003). When a claim is based on alleged criminal conversion, a plaintiff must

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prove that the person “knowingly or intentionally exert[ed] unauthorized control

over property of another person.” Id., citing I.C. § 35–43–4–3.

Noble Roman’s complaint does not provide any specific facts of the alleged

conversion such as: who specifically exerted the unauthorized control; over what

property; how did they do it; when did they do it; and where did they do it. The

complaint alleges that Defendants advertised and sold “unauthorized products

and/or services” using Noble Roman’s intellectual property but fails to identify the

specific products or services in question or when or where they were advertised and

sold. The complaint defines Noble Roman’s “Intellectual Property” to include

“products, services, names, logos, images, media, goodwill, trademarks and trade

dress” but fails to identify which of these many items of IP was actually the subject

of conversion. Nor does the complaint even attempt to distinguish among the five

Defendants as to their individual responsibility for this alleged criminal conduct.

The complaint wholly fails to give the Defendants fair notice of what the claim of

conversion is.

2. Count II fails to sufficiently state a claim of theft.

In Count II, Noble Roman’s alleges that the Defendants committed theft,

again seeking treble damages and attorney’s fees under the Crime Victim’s Relief

Act. In order to recover on this claim, the plaintiff must establish the elements of

theft. A person commits theft if he “knowingly or intentionally exerts unauthorized

control over property of another person, with intent to deprive the other person of

any part of its value or use.” IC § 35-43-4-2. Thus, theft is like conversion but with

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the added element of “intent to deprive.” But like the conversion claim, the theft

claim fails because the complaint does not allege any specific facts of the elements of

theft, including what specifically was stolen, when it was stolen, where was it

stolen, how was it stolen, and perhaps most significantly, who among the five

Defendants committed this crime, intentionally depriving Noble Roman’s of its


3. Count III fails to sufficiently state a claim for breach of the

Franchise Agreement.

a. The four defendants who are not parties to the Franchise

Agreement could not have breached it.

While the Complaint does not specify to which defendant or defendants this

Count is directed, the only defendant that is a party to the Franchise Agreement is

Defendant Gateway. (See Exhibit to Plaintiff’s Complaint and Complaint, ¶ 54).

Therefore, this Count states no claim as to the other defendants because they were

not parties to any agreement with Noble Roman’s that they could have breached.

Thus, the breach of contract claim fails to state a claim against the defendants 7405

Indy Corp., 850 Indy Corp., Northlake Marketing, LLC and Thomas M. Collins II.

b. The complaint fails to sufficiently state a claim of breach by


As to Gateway, the complaint generally alleged that it breached the

Franchise Agreement “in connection with the sale of unauthorized products and/or

services,” but it does not provide any specifics as to when, how, or where it

supposedly sold unauthorized products or services or what unauthorized products or

services it supposedly sold. (Complaint, ¶ 55). It also alleged that after termination

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of the agreement, Gateway “continued to utilize Noble Roman’s Intellectual

Property in violation of the Franchise Agreement” (¶ 57), but it does not specify

what Intellectual Property or when, how, or where it supposedly used this property

in violation of the agreement.

4. Count IV fails to sufficiently state a claim of trademark


a. The trademark claim fails to allege any specific facts that would
show trademark infringement.

Noble Roman’s complaint alleges that Defendants’ acts constitute trademark

infringement, a violation of 15 U.S.C. §1114(1), as well as a false designation of

origin in violation of 15 U.S.C. § 1125. Trademark infringement under Section

1114 requires a plaintiff to show that the accused party used the mark in commerce

in certain prohibited ways. Klipsch Grp. Inc. v. Stern, No. 116CV01034MPBWTL,

2019 WL 2271517, at *4 (S.D. Ind. Mar. 12, 2019), citing 15 U.S.C.

§ 1114(1)(A). Similarly, Section 1125 claims require a showing that the defendant

has “use[d] in commerce any word, term, name, symbol, or device, or any

combination thereof....” in specified ways. Id., citing 15 U.S.C. § 1125(a). To prove

either claim, “’a plaintiff must establish that (1) its mark is protectable and (2) the

defendant's use of the mark is likely to cause confusion among consumers.’” Id.,

citing CAE, Inc. v. Clean Air Eng'g. Inc., 267 F.3d 660, 673-74 (7th Cir. 2001). See

Diamond Sawblades Manufacturers’ Coalition v. Diamond Tools Technology, LLC,

___F.Supp.3d___ 2020 WL 7028029 (S.D. Ind. 2020) (dismissing claim for false

designation, noting “The slim likelihood of consumer confusion confounds any false

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designation of origin claim under § 1125(a)(1)(A) of the Lanham Act.”)

Here, the complaint does not allege any specific facts regarding the alleged

trademark infringement or false designation of origin. Rather, it makes mere

conclusory allegations like the following:

Defendants traded unfairly upon Noble Roman’s well-established

goodwill and reputation by confusing the public as to the origins of its
products, including the sale of non-conforming items at Defendants’
Franchised Locations and non-Franchised Locations while holding
themselves out to the public as a vendor of Noble Roman’s products
and/or in connection with Noble Roman’s Marks.

(Complaint, ¶ 66) (emphasis added). The complaint does not identify what “non-

conforming products” of Defendants were supposedly used “while [Defendants were]

holding themselves out to the public as a vendor of Noble Roman’s products” or “in

connection with Noble Roman’s Marks.” Nor does it describe which of the

Defendants or which (or how many) of the locations supposedly used the allegedly

non-conforming items or when they did so. It certainly does not explain how

consumer confusion is likely.

In fact, in using the word “or” (in italics above), the complaint does not even

necessarily allege that Defendants actually used Noble Roman’s mark in commerce,

much less how they used it in a manner that would lead to consumer confusion. See

Specht v. Google, Inc., 660 F.Supp.2d 858, 863 (N.D. Ill 2009) (explaining that the

Lanham Act defines “use in commerce” as “use of a mark in the ordinary course of

trade” by “placing the mark on the goods.”) In fact, the allegations of the complaint

here could merely be that the Defendants sold some product that was not

authorized by Noble Roman’s in the Franchise Agreement.

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In contrast to the mere conclusory statements in the complaint in this case,

the following allegations in the Specht case sufficiently put the defendants on notice

and stated a claim of trademark infringement where:

Plaintiffs listed the trademark that Google allegedly infringed

(“ANDROID DATA”), noted the time frame (since November 2007),
indicated the similar mark (“ANDROID”), and described the type of
infringing activities. See Papa John’s Intern., Inc. v. Rezko, 446
F.Supp.2d 801, 807 (N.D.Ill.2006). 1 In addition to factual allegations
relating to Google’s promotional campaign for its Android products, the
FAC alleges that Google released to developers part of the source code
for its Android line, unveiled several versions of this product, and sold
related equipment.

Id. at 864 (emphasis added). The complaint here contains no such specifics,

and unlike the complaint in Specht, it does not give the Defendants fair

notice of its Lanham Act claim.

b. The claim fails to state a claim against Mr. Collins individually.

In addition, to the extent Noble Roman’s alleges a claim against Mr. Collins

individually, it fails to sufficiently state a claim because the complaint alleges no

specific facts that would show personal involvement by Mr. Collins in the alleged

infringement. The Seventh Circuit has held that absent some “special showing,”

individuals are “not ordinarily liable for the infringement of their corporation, even

where that infringement is committed under the officer’s general direction.”

Desmond v. Chicago Boxed Beef Distributors, Inc., 921 F.Supp.2d 872, 885 (N.D. Ill.

2013), citing Dangler v. Imperial Mach. Co., 11 F.2d 945, 947 (7th Cir.1926); Specht

1The Papa Johns case cited by the court in Specht was decided prior to Twombly
and Iqbal.
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v. Google, Inc., 660 F.Supp.2d 858, 864-65 (N.D. Ill 2009) (dismissing claims against

individual defendants, stating, “Plaintiffs’ conclusory statements that the

Individual Defendants are liable, standing alone, fall short of the “special showing”

and run afoul of their duty to adumbrate a claim with supporting facts.”). Here, the

complaint does not even allege that any alleged infringement was committed under

Mr. Collins’ direction. The complaint here falls short of making the required “special


c. The complaint fails to state a claim under Indiana law.

To the extent that Noble Roman’s alleges a violation under Indiana law in

Count IV, its claim fails because it has not alleged that its trademark is registered

as required under Indiana’s Trademark Act. The elements of a state claim are the

same as those of a federal one, with one significant difference. Id. Unlike the federal

statute, the Indiana law requires state registration of a trademark as “an explicit

prerequisite to recovering for its infringement.” Heckler & Koch, Inc. v. German

Sport Guns GmbH, No. 111CV01108SEBTAB, 2013 WL 12291720, at *12 (S.D. Ind.

Sept. 27, 2013), citing Ind. Code § 24-2-1-14(a). Noble Roman’s complaint does not

allege that its trademark is properly registered as required under Indiana law.

5. Count V fails to sufficiently state a claim of unjust enrichment.

a. The claim fails to make any specific allegations.

Noble Roman’s Count V attempts to state a claim for unjust enrichment, but

it fails for several reasons. In order to prove unjust enrichment, a plaintiff must

establish that “a measurable benefit has been conferred on the defendant under

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such circumstances that the defendant's retention of the benefit without payment

would be unjust.” Aaron MacGregor & Assocs., LLC v. Zhejiang Jinfei Kaida

Wheels Co., 328 F. Supp. 3d 906, 929 (N.D. Ind. 2018), citing Bayh v.

Sonnenburg, 573 N.E.2d 398, 408 (Ind. 1991). Noble Roman’s alleges that

Defendants are liable for unjust enrichment for “knowingly utilizing and benefiting

from Noble Roman’s Property Rights and Intellectual Property without

authorization and without paying for the same.” (Complaint, ¶75). As with the

other claims, however, this claim includes no factual allegations and does not

attempt to allege how Noble Roman’s conferred a benefit upon each of the various

defendants. The complaint fails to provide any specifics as to which defendants

supposedly retained some measurable benefit for which justice would require


b. The unjust enrichment claim against Gateway fails because the

contract governs.
To the extent that the claim is directed to Defendant Gateway, it fails

because the parties had a contract that governed their relationship, and “parties

cannot recover on the equitable theory of unjust enrichment, or quantum meruit,

when a contract controls the rights of the parties.” Aaron MacGregor & Assocs., 328

F. Supp. 3d at 929. The Franchise Agreement addresses the same subject raised in

the unjust enrichment claim—the defendant’s alleged use of Noble Roman’s

“Property Rights and Intellectual Property.” See id. In particular, the Franchise

Agreement addresses Noble Roman’s “unique and distinctive system relating to the

establishment and operation of pizza restaurants… (‘System’)” that identifies “by

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means of certain trade names, service marks, trademarks, logos, emblems and

indicia or origin, including but not limited to, the mark “Noble Roman’s.” (Ex. to

Complaint, p. 1). Thus, any claim for unjust enrichment against Gateway fails as a

matter of law because the Franchise Agreement governs the parties’ relationship.

Furthermore, while a plaintiff can plead breach of contract and unjust

enrichment in the alternative, to do so the plaintiff “must claim both that a contract

was breached and that a contract did not exist….” Id. Here, however, there is no

allegation that the contract between Noble Roman’s and Gateway did not exist or

was somehow invalid.


Noble Roman’s complaint makes conclusory allegations of multiple claims

against the various Defendants, but it does not give them fair notice of what the

claims are. The complaint lacks any factual details and fails to state any claim that

is plausible on the face of the complaint. For these reasons, Defendants respectfully

request that each of the Noble Roman’s five claims be dismissed for failure to state

a claim under Rule 12(b)(6).

Respectfully submitted,


/s/ Ronald J. Waicukauski

Ronald J. Waicukauski, Atty. No. 1089-53
Carol Nemeth Joven, Atty. No. 18091-53A
301 Massachusetts Avenue, 2nd Floor
Indianapolis, Indiana 46204
Telephone: (317) 633-8787
Facsimile: (317) 633-8797


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I certify that on the 8th day of March 2021, the foregoing was filed

electronically and served upon counsel of record via the Court’s ECF filing system.

/s/ Ronald J. Waicukauski