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Case 1:21-cv-00307-JPH-MG Document 37 Filed 04/30/21 Page 1 of 22 PageID #: 364

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, )
)
Third Party Plaintiffs, )
)
v. )
)
PAUL MOBLEY and TROY BRANSON, )
)
Third Party Defendants. )

DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND


COUNTERCLAIM TO NOBLE ROMAN’S, INC.’S
FIRST AMENDED COMPLAINT

1. Noble Roman’s is an Indiana corporation with its principal place of

business located in Indianapolis, Marion County, Indiana.

ANSWER: Defendants admit the material allegations of Paragraph 1.

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2. Defendants, Gateway Triangle Corp. (“Gateway”) and 7405 Indy Corp.

(“7405”) are corporations existing under the laws of the State of Indiana, each with

the same principal office address of 3592 North Hobert Road, Hobart, Lake County,

Indiana 46342.

ANSWER: Defendants admit the material allegations of Paragraph 2.

3. Defendant, Northlake Marketing, LLC, is a limited liability company

organized and existing under the laws of the State of Indiana with a principal office

address of 3592 North Hobart Road, Hobart, Lake County, Indiana 46342.

ANSWER: Defendants admit the material allegations of Paragraph 3.

4. Gateway, 7405, and Northlake shall be collectively referred to herein

as the “Gateway Defendants”.

ANSWER: Defendants admit that Gateway, 7405, and Northlake are referred

to in the complaint as “Gateway Defendants.”

5. Each of the Gateway Defendants either itself owns, or is directly

affiliated with the owner of, convenience stores operating throughout the State of

Indiana under the tradenames LUKE’S OIL and/or LUKE’S.

ANSWER: Defendants deny the material allegations of Paragraph 5.

Operative Background Common to all Claims

6. Noble Roman’s repeats and incorporates by this reference the

allegations of paragraphs 1 through 5 of this pleading as if fully set forth herein.

ANSWER: Defendants incorporate their responses to the preceding

paragraphs.

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7. Noble Roman’s has developed and owns a unique and distinctive

system relating to the establishments and operation of restaurants generally selling

pizza, breadsticks, sandwiches, and other related food items, identified by trade

names, service marks, trademarks, logos, and indicia of origin, including without

limitation, the brand names “Noble Roman’s”, “Noble Roman’s Pizza”, “Noble

Roman’s Pizza Express” and “Tuscano’s Subs” (herein, the “Marks”).

ANSWER: Defendants are without knowledge of the material allegations

of Paragraph 7 and therefore deny the same.

8. Further, distinguishing characteristics of the Noble Roman’s

restaurant system include, without limitation, menu board and counter displays and

other images, special recipes and menu items, advertising and promotional

programs, media strategies, and trade dress (collectively with the Marks, known

herein as the “Intellectual Property”).

ANSWER: Defendants are without knowledge of the material allegations

of Paragraph 8 and therefore deny the same.

9. Noble Roman’s is the exclusive holder of licensing and franchising

rights relating to its Intellectual Property.

ANSWER: Defendants are without knowledge of the material allegations

of Paragraph 9 and therefore deny the same.

10. Noble Roman’s has expended significant amounts of money and

resources on its Intellectual Property, including without limitation, costs incurred to

research, develop and market its products, services and brands, and as a result of

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those efforts, Noble Roman’s’ Intellectual Property is highly valuable.

ANSWER: Defendants are without knowledge of the material allegations

of Paragraph 10 and therefore deny the same.

11. Noble Roman’s franchises the operation of its restaurant concepts that

feature pizza, breadsticks and sandwiches, including by entering into agreements

providing the license to use Noble Roman’s’ Intellectual Property.

ANSWER: Defendants are without knowledge of the material allegations

of Paragraph 11 and therefore deny the same.

12. Each of the Gateway Defendants either itself owns, or is directly

affiliated with the owner of, approximately thirty (30) convenience stores operating

throughout the State of Indiana under the tradename LUKE’S OIL a.k.a. LUKE’S.

ANSWER: Defendants admit that Gateway operates fewer than thirty

convenience stores operating throughout the State of Indiana under the

tradename LUKE’s a.k.a. LUKE. Defendants deny that the remaining

Defendants operate any convenience stores and deny any additional allegations of

Paragraph 12.

13. On or about June 30, 2013, Noble Roman’s and Gateway entered into a

certain Noble Roman’s, Inc. Master Franchise Agreement (Noble Roman’s Pizza)

dated June 30, 2013, as later amended on June 22, 2016, twice amended again on

December 21, 2016, and finally amended on October 18, 2017 (collectively, herein,

the “Franchise Agreement”, hereto attached as Exhibit “1”) pursuant to which

Gateway was originally licensed and authorized to sell Noble Roman’s branded food

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products using Noble Roman’s Intellectual Property at eighteen (18) LUKE’S

locations in Lake, Porter and Tippecanoe Counties.

ANSWER: Defendants state that the documents speak for themselves.

14. Ultimately, pursuant to the June 22, 2012 amendment, the total

number of Noble Roman’s restaurant locations franchised to Gateway were pared

from eighteen (18) to fourteen (14) and included the following:

The locations described above and listed as Schedule 1A to the Franchise Agreement

shall be referred to collectively as the “Franchise Locations” or singularly as a

“Franchise Location”, designated by Loc #).

ANSWER: Defendants state that the documents speak for themselves.

15. Gateway owns and operates each of the Franchise Locations.

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ANSWER: Defendants admit that Gateway owns and operates a business at

each of the franchise locations but deny that it owns the physical locations.

16. 7405 holds or previously held the Indiana alcoholic beverage licenses for

Franchise Locations “5” (DL4531375) and “6” (DL4518233). Therefore, upon

information and belief, 7405 has an operational, leasehold, landownership, or other

business interest in Franchise Locations “5” and “6”, and/or in the real property or

improvements containing said Franchise Locations.

ANSWER: Defendants admit that 7405 held or holds Alcoholic Beverage

Permit Nos. DL4531375 and DL4518233 but denies the remaining material

allegations of paragraph 16.

17. Northlake holds the Indiana alcoholic beverage license for Franchise

Location “1” (DL4530906). Therefore, upon information and belief, Northlake has an

operational, leasehold, landownership, or other business interest in Franchise

Location “1”, and/or in the real property or improvements containing said Franchise

Location “1”.

ANSWER: Defendants admit that Northlake held or holds Alcoholic

Beverage Permit No. DL4530906 but denies the remaining material allegations of

paragraph 17.

Count I: Breach of the Franchise Agreement by Gateway

18. Noble Roman’s repeats and incorporates by this reference the

allegations of paragraphs 1 through 17 of this pleading as if fully set forth herein.

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ANSWER: Defendants incorporate their responses to the preceding

paragraphs.

19. Pursuant to the Franchise Agreement, 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 Pizza (Ex. 1, p. 8, sec. VII(C)(2)),

(b) maintain uniformity among all of the units of Noble Roman’s

Pizza and comply with the Noble Roman’s restaurant standards and

specifications relating to the operation and appearance of the restaurant (p.

9, sec. VIII(A)),

(c) not alter, attempt to improve, or change the design of

equipment, signs, interior or exterior décor items unless expressly provided

for in the procedural manual or upon expressed approval from Noble Roman’s

(p. 9, sec. VIII(B)),

(d) comply with Noble Roman’s standards and specifications

relating to the purchase of all food and beverage items (p. 9, sec. VIII(C)),

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

manner and style prescribed by Noble Roman’s (p. 10, sec. VIII(E)(1)),

(f) sell and offer for sale only menu items, products, and services

that were expressly approved for sale in writing by Noble Roman’s (p. 10, sec.

VIII(E)(2)), ensure that all advertising and promotional material, signs,

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decorations, paper goods, and other items designated by Noble Roman’s, bear

the Marks in the form, color, location, and manner prescribed by Noble

Roman’s (p. 11, sec. VIII(G)),

(g) use Noble Roman’s’ Marks only in connection with the operation

of the Noble Roman’s Pizza restaurant and only with the express written

consent of Noble Roman’s (p. 13, sec IX(C)(1)),

(h) operate and advertise the franchised business only under the

name “Noble Roman’s Pizza” (p. 13, sec. IX(C)(1)),

(i) 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 injurious or prejudicial to the goodwill associated

with the Noble Roman’s Marks or its franchise restaurant system (p. 18, sec.

X(C)(1)(A)),

(j) indemnify and hold harmless Noble Roman’s from and against

all losses and expenses incurred in connection with any action, suit,

proceeding, claim, demand, investigation or inquiry which arises out of or is

based upon a violation or breach by Gateway of any warranty,

representation, agreement, or obligation contained in the Franchise

Agreement (p. 20, sec. XV(A)(2)),

(k) upon termination, immediately cease operating Noble Roman’s

Pizza and to not thereafter represent to the public or hold itself out as a

present or former franchiser (p. 24, sec. XVIII(A)),

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(l) upon termination, cease use of all signs, advertising materials,

paper goods, displays, stationary, trade dress, distinctive forms and any other

articles which may or may not display the Noble Roman’s Marks but which

are proprietary to Noble Roman’s (p. 24, sec. XVIII(B)),

(m) upon termination, in the operation of another business, cease

using any reproduction, copy or imitation of the Noble Roman’s Marks that

would be likely to cause confusion, mistake, or deception, or that would be

likely to dilute Noble Roman’s’ rights, and to cease utilizing any designation

of origin or description or representation that falsely suggests or represents

an association with Noble Roman’s (p. 25, sec. XVIII(E)), and to

(n) upon termination, immediately furnish Noble Roman’s with an

itemized list of, and return, all trade dress items, signs, advertising and sales

promotion materials, displays, stationary and other articles bearing the

Marks or any of Noble Roman’s distinctive markings, designs, labels, or other

marks thereon.

ANSWER: Defendants state that the documents speak for themselves.

20. Further, by executing the Franchise Agreement, Gateway expressly

assented to and warranted that

(a) aside from the express grants of the Franchise Agreement, it was

granted no right, title or interest in Noble Roman’s’ Marks or Intellectual

Property,

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(b) it may not use Noble Roman’s service marks, trademarks, trade

names, trade dress, logos, copyrights or proprietary materials, except in

accordance with the terms of the Franchise Agreement for the operation of

Noble Roman’s Pizza and only at or from a Franchised Location or in

approved advertising relating to the Noble Roman’s Pizza,

(c) the unauthorized use of Noble Roman’s Marks constitutes an

infringement of Noble Roman’s’ rights in the Marks and constitutes a

material default of the Franchise Agreement, certain portions of Noble

Roman’s Pizza décor and design constitute unique and protectable images to

the consumer identifiable with Noble Roman’s, which are part of the goodwill

associated with Noble Roman’s system of franchising restaurants, and that

Gateway was not granted and had no ownership or other interest in Noble

Roman’s’ Pizza décor and design elements,

(d) each of its obligations as described in the Franchise Agreement is

a material and essential obligation, the nonperformance of which would

adversely and substantially affect Noble Roman’s and its restaurant

franchise system,

(e) operating a Noble Roman’s Pizza restaurant at an unapproved

location constitutes a material default of the Franchise Agreement,

(f) misusing or making any unauthorized use of Noble Roman’s

Marks or otherwise materially impairing the goodwill may constitute a

material default of the Franchise Agreement, and that

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(g) offering any pizza and/or breadstick product for sale at a location

other than the Franchise Locations constitutes a material default of the

Franchise Agreement.

ANSWER: Defendants state that the documents speak for themselves.

21. The Franchise Agreement was a valid and enforceable contract

between Noble Roman’s and Gateway.

ANSWER: The allegations of Paragraph 21 call for a legal conclusion to

which no response is required. Defendants further state that the document

speaks for itself. Defendants admit that the Franchise Agreement was a valid and

enforceable contract between Noble Roman’s and Gateway and further state that the

contract has terminated. Defendants deny any remaining allegations of Paragraph 21

and specifically deny that they are liable for any alleged breach of the agreement.

22. Gateway breached one or more of the foregoing material terms and

obligations of the Franchise Agreement including, without limitation, by

(a) at one or more of the Franchise Locations, including without limitation,

Franchise Location “1”, selling competing food products including without

limitation, by selling LUKE’S branded sandwiches from equipment bearing Noble

Roman’s Marks, distinctive markings, and/or other Intellectual Property, creating

confusion in the marketplace of customers, and by failing and otherwise refusing to

timely cure said default and

(b) after termination of the Franchise Agreement, failing and refusing to

cease to use and return to Noble Roman’s all trade dress items including signs,

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displays, advertising and sales promotion materials, including without limitation,

Noble Roman’s signage at Franchise Locations “4”, “5”, “6”, and “14”.

ANSWER: Defendants deny the material allegations of Paragraph 22.

23. As a result of Gateway’s breaches, Noble Roman’s has been damaged in

an amount to be determined at trial under governing law.

ANSWER: Defendants deny the material allegations of Paragraph 23.

24. Noble Roman’s is entitled to indemnity from and against all losses and

expenses incurred in connection with the foregoing claims which arise solely out of

Gateway’s breach of its obligations under the Franchise Agreement.

ANSWER: Defendants deny the material allegations of Paragraph 24.

Count II: Trademark Infringement by Gateway Defendants

25. Noble Roman’s repeats and incorporates by this reference the

allegations of paragraphs 1 through 24 of this pleading as if fully set forth herein.

ANSWER: Defendants incorporate their responses to the preceding

paragraphs.

26. Noble Roman’s registered the Noble Roman’s® wordmark on the

Principal Register of the United States Patent and Trademark Office in 1974 under

Registration No. 987,069, THE BETTER PIZZA PEOPLE® wordmark in 1955 under

Registration No. 1,920,428, and the design mark

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on the Principal Register of the United States Patent and Trademark Office in 1992

under Registration No. 1682308 (herein, collectively the “Registered Marks and

Names”). The registrations of the Marks are valid and incontestable and enjoy the

statutory presumptions of validity and ownership.

ANSWER: Defendants are without knowledge as to the truth of the

allegations of Paragraph 26 and therefore deny the same.

27. Noble Roman’s has used the Registered Marks and Names in

commerce continuously since 1972 in connection with marketing, identifying, and

promoting pizza franchises.

ANSWER: Defendants are without knowledge as to the truth of the

allegations of Paragraph 27 and therefore deny the same.

28. Gateway and 7405, the latter having been assigned, transferred or

delegated from Gateway an interest or other rights in the real property or

improvements containing the Franchised Locations “4”, “5”, “6”, and “14”, used the

Registered Marks and Names in commerce in connection with the marketing and

sale of competing food products, including without limitation, by displaying Noble

Roman’s signage at Franchise Locations “4”, “5”, “6”, and “14”, after expiration of

the Franchise Agreement.

ANSWER: Defendants deny the material allegations of Paragraph 28.

29. Gateway and/or Northlake Marketing, the latter having been

assigned, transferred or delegated from Gateway an interest or other rights in the

real property or improvements containing the Franchised Location “1”, used the

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Registered Marks and Names in commerce in connection with the marketing and

sale of competing food products, including without limitation, by selling LUKE’S

branded sandwiches from equipment wrapped with and depicting Noble Roman’s

Registered Marks and Names at Franchise Location “1”.

ANSWER: Defendants deny the material allegations of Paragraph 29.

30. The Gateway Defendants’ foregoing use of the Registered Marks and

Names was without the authorization or consent of Noble Roman’s.

ANSWER: Defendants deny the material allegations of Paragraph 30.

31. The Gateway 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.

ANSWER: Defendants deny the material allegations of Paragraph 31.

32. Noble Roman’s has been damaged by the Gateway Defendants’ willful

infringement and false designation of origin in an amount to be determined under

governing law.

ANSWER: Defendants deny the material allegations of Paragraph 32.

33. Noble Roman’s is entitled to recover any and all damages, including

those available under and set forth in the Lanham Act and Indiana’s Trademark

Act, I.C. 24-2-1, et seq.

ANSWER: Defendants deny the material allegations of Paragraph 33.

AFFIRMATIVE DEFENSES

1. Plaintiff’s claims fail to state a claim upon which relief can be granted.

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2. Plaintiff’s trademark claims are barred due to Plaintiff’s acquiescence or

estoppel.

3. Plaintiff’s claims are barred, in whole or in part, by the equitable

doctrine of unclean hands.

4. Plaintiff may not recover any damage which it has unreasonably failed to

mitigate or avoid.

5. Defendants continue to investigate the facts related to Plaintiff’s

complaint and reserve the right to add additional affirmative defenses.

WHEREFORE, Defendants request judgment in their favor on Plaintiff’s

complaint, and for all other relief, legal or equitable, to which they are entitled.

COUNTERCLAIM

THE PARTIES

1. Counterclaim Plaintiffs, Gateway Triangle Corp. and 7405 Indy Corp.,

are corporations incorporated and existing under the laws of the State of Indiana

with a principal office address of 3592 North Hobart Road, Hobart, Lake County,

Indiana 46342.

2. Counterclaim Plaintiff Northlake Marketing LLC is a limited liability

company organized and existing under the laws of the State of Indiana with a

principal office address of 3592 North Hobart Road, Hobart, County of Lake, Indiana

46342.

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3. Counterclaim Defendant Noble Roman’s, Inc. is an Indiana corporation

with its principal place of business located in Indianapolis, Marion County,

Indiana.

4. Counterclaim Defendant Paul Mobley is the Executive Chairman of

Noble Roman’s, Inc. and resides in Indianapolis, Indiana.

5. Counterclaim Defendant Troy Branson is the Executive Vice President of

Noble Roman’s, Inc. and resides in Indianapolis, Indiana.

JURISDICTION

1. This counterclaim arises under the laws of the State of Indiana. The

jurisdiction of this Court is proper through the Court’s supplemental jurisdiction

under 28 U.S.C. §1367.

2. This Court has personal jurisdiction over Plaintiff Noble Roman’s, Inc.

by, inter alia, Plaintiff’s filing of its Complaint. The Court has personal jurisdiction

over Counterclaim Defendants Paul Mobley and Troy Branson because they reside in

Indiana.

3. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1)

because Counterclaim Defendants Paul Mobley and Troy Branson reside in this

district and Counterclaim Defendant Noble Roman’s has its principal place of

business in this district.

FACTS

4. In June 2013, Gateway entered into a Master Franchise Agreement with

Noble Roman’s, pursuant to which Gateway was licensed and authorized to sell

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“Noble Roman’s” branded food products using Noble Roman’s Intellectual

Property at certain convenience stores owned and operated by Gateway.

5. The Agreement was amended twice, and the term was extended through

December 31, 2019.

6. On July 8, 2019, Troy Branson contacted Tom Collins regarding alleged

“critical issues.”

7. On July 9, 2019, Branson advised Collins of “some very serious issues to

discuss and I am reaching out to you so that we can avert a time and monetary

consuming situation.” (Emphasis added).

8. On July 15, 2019, Paul Mobley sent a letter with a cover email to Collins

advising him of purported “major violations of your Franchise Agreement and the

Federal Lanham Act, among other things.” In the letter, Mobley identified two issues.

9. First, Mobley accused Defendants of displaying on a television a few

Noble Roman’s photographs at a convenience store location that did not have a Noble

Roman’s franchise. The photographs did not contain Noble Roman’s name or

trademark.

10. Second, Mobley complained that at Noble Roman’s franchised locations,

Defendants had placed sandwiches that had not been approved by Noble Roman’s in a

warmer with Noble Roman’s warmer wrap. The sandwiches at issue were marked

with Defendants’ brand name, “Luke.”

11. In his July 15, 2019 letter, Mobley offered to settle these issues if

Defendants would agree to extend the Master Franchise Agreement by four years,

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from the then-existing termination date of December 31, 2019 to December 31, 2023.

Mobley also threatened that if the settlement offer was not accepted “Noble Roman’s

will pursue all legal remedies available to it, which includes any legal fees for

pursuing its rights and protecting its franchise.” (Emphasis added).

12. On August 21, 2019, Branson told Collins that he needed to know

whether Gateway was going to accept Noble Roman’s offer, agreeing to a four-year

extension of the term of the Franchise Agreement, or “if we need to pursue this legally”

and “start running up the bill.” Branson further advised 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.” (Emphasis added).

13. Under the circumstances, however, Defendants would not be responsible

for paying Noble Roman’s legal fees under either the Franchise Agreement or the

Lanham Act.

14. Section 1117(a) of the Lanham Act provides that “[t]he court in

exceptional cases may award reasonable attorney fees to the prevailing party.” 15

U.S.C. § 1117(a). District courts may determine whether a case is “exceptional” in the

case-by-case exercise of their discretion, considering the totality of the circumstances.

15. The Franchise Agreement provides that the franchisee shall pay the

franchisor’s attorney fees in certain circumstances, such as when the franchisor incurs

fees as a “a result of any default by Franchisee,” but there was no default here.

16. Section XVII(3)(n) of the Franchise Agreement provides: “If Franchisee

misuses or makes any unauthorized use of the Marks or otherwise materially impairs

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the goodwill associated therewith or Franchisor’s rights therein; provided that,

notwithstanding the above, Franchisee shall be entitled to notice of such event of

default and shall have five days to cure such default.” (Emphasis added).

17. As confirmed in a letter dated August 26, 2019 from Gateway’s in-house

counsel to Mobley, Gateway ceased use of the alleged Noble Roman’s photos within 5

days of the July 15 notice.

18. Regarding the food warmer issue, Gateway’s counsel’s August 26 letter

explained that Branson was aware of this practice and, on behalf of Noble Roman’s, he

approved the selling of non-Noble Roman’s brand sandwiches in the counter warmer

due to space limitations at the stores, on the condition that the sandwiches were

clearly identified as Luke’s and did not use any of Noble Roman’s marks or packages.

These two conditions were satisfied at all franchised locations.

19. Thus, to the extent that these minor issues (i.e., photos lacking any

Noble Roman’s mark and warmers containing clearly marked Luke products) might

be regarded as contract violations, the first (the photos) was cured pursuant to Section

XVII(3)(n) of the Franchise Agreement within five days of notice and as to the second

(warmers), Noble Roman’s had consented and acquiesced as long as certain conditions

were met and they were.

20. Notwithstanding the lack of any valid claims against Defendants, Mobley

wrote a letter on August 29, 2019 in which he threatened to engage in abusive

litigation practices:

If we are forced to file a lawsuit we will have a significantly


long period of discovery as we will subpoena all accounting

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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 of the facts. [Emphasis added].

21. Noble Roman’s initial complaint in this case was facially deficient, as it

set forth no specific facts as to Defendants’ alleged wrongful conduct.

22. In its initial complaint, Noble Roman’s asserted multiple unwarranted

claims including claims for treble damages under the Indiana Crime Victims Relief

Act for allegedly committing the crimes of conversion (Count I) and theft (Count II).

These claims had no substantial basis in law or fact, and Defendants have not

asserted them in their amended complaint.

23. The Noble Roman’s counsel who prepared the initial complaint is

currently the subject of a disciplinary complaint for filing a similar trademark lawsuit

with multiple unwarranted claims, “not for the purpose of obtaining a judgment but

instead, increasing costs … by pleading facially deficient counts such as … violations

of the Indiana Crime Victims Act.” Verified Complaint for Disciplinary Action, In the

Matter of P. Adam Davis, Ind. S. Ct., Cause No. 21S-DI-00088 (Filed 2/26/2021).

CLAIM FOR ABUSE OF PROCESS

24. Counterclaim Plaintiffs repeat the allegations of paragraphs 1 - 23 of the

Counterclaim above as if fully set forth herein.

25. Noble Roman’s claims are objectively unreasonable under the

circumstances.

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26. The purpose of Noble Roman’s and its agents in prosecuting this action is

not to obtain a judgment on the merits but to cause the Defendants to incur costs.

27. Noble Roman’s uses abusive litigation practices in this and other cases to

induce the franchisee to extend its franchise agreements or, failing that, to make the

franchisee an example so that other franchisees will extend their franchise

agreements rather than face similar adverse consequences.

28. The prosecution of Noble Roman’s claims for these ulterior purposes is

not proper in the normal course of litigation and constitutes an abuse of process.

29. The persons responsible for causing this abuse of process are the

Plaintiff, Noble Roman’s, Inc., and the Counterclaim Defendants Paul Mobley and

Troy Branson.

30. Defendants have been damaged by incurring attorney fees and other

costs as a result of this abuse of process by Noble Roman’s, Mobley, and Branson.

PRAYER FOR RELIEF

WHEREFORE, Counterclaimants pray for judgment as follows:

Entering judgment in favor of Defendants dismissing Plaintiff’s complaint


with prejudice;

Entering judgment on the Counterclaim against Noble Roman’s, Branson,


and Mobley, including both compensatory and punitive damages;

Awarding Defendants their costs, including attorneys’ fees, incurred in


defending this action under 15 U.S.C. § 1117(a); and

Awarding Defendants such other relief as the Court deems just and
proper.

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JURY DEMAND

Defendants respectfully request a trial by jury.

Respectfully submitted,

PRICE WAICUKAUSKI JOVEN & CATLIN, LLC

/s/ Ronald J. Waicukauski


Ronald J. Waicukauski, Atty. No. 1089-53
Carol Nemeth Joven, Atty. No. 18091-53A
PRICE WAICUKAUSKI JOVEN & CATLIN, LLC
The Hammond Block Building
301 Massachusetts Avenue, 2nd Floor
Indianapolis, Indiana 46204
Telephone: (317) 633-8787
Facsimile: (317) 633-8797
rwaicukauski@price-law.com
cnemeth@price-law.com

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

I certify that on the 30th day of April 2021, the foregoing was filed electronically

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

/s/ Ronald J. Waicukauski

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