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Case 1:21-cv-00550-RLY-MJD Document 28 Filed 04/28/21 Page 1 of 8 PageID #: 203

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

W.A.T.C.H. TV COMPANY, d/b/a )


WATCH COMMUNICATIONS, )
)
Plaintiff, ) Case No.: 1:21-cv-550-RLY-MJD
)
vs. )
)
GREG JARMAN, ROGER CRIBLEZ, )
TOM KOLB, B. TODD MOSBY, )
and GRIT TECHNOLOGIES LLC )
)
Defendants. )

GRIT TECHNOLOGIES LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION


TO DISMISS COUNTS I AND VII-VIII OF THE COMPLAINT WITH PREJUDICE

Plaintiff W.A.T.C.H. TV Company (“Watch”) asserted five claims against Defendant Grit

Technologies LLC (“Grit,” and together with Greg Jarman, Roger Criblez, Tom Kolb and B. Todd

Mosby, “Defendants”). Three of these – (1) false designation of origin and unfair competition

under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count I); (2) civil conspiracy (Count

VII); and (3) unfair competition in violation of common law (Count VIII) – fail to state a claim.

LEGAL STANDARD

Grit moves to dismiss three of the claims asserted against it pursuant to Rule 12(b)(6) for

failure to state a claim upon which relief may be granted. To survive a Rule 12(b)(6) motion to

dismiss, a claim must contain sufficient factual matter “to state a claim to relief that is plausible

on its face” (Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), which occurs when enough

facts are pled that the court can “draw the reasonable inference that the defendant is liable for the

misconduct alleged” (Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Put differently, “[t]he fact that

the allegations undergirding a claim could be true is no longer enough to save a complaint from

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being dismissed; the complaint must establish a nonnegligible probability that the claim is valid

….” In re Text Messaging Antitrust Litig., 630 F.3d 622, 629 (7th Cir. 2010).

While the Court must “tak[e] all well-pleaded allegations of the complaint as true and

view[] them in the light most favorable to the plaintiff” (Santiago v. Walls, 599 F.3d 749, 756 (7th

Cir. 2010)), it is “not obliged to accept as true legal conclusions or unsupported conclusions of

fact” (Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002)). And a plaintiff “pleads himself

out of court when it would be necessary to contradict the complaint in order to prevail on the

merits.” Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008).

ARGUMENT

I. Count I: Lanham Act

Section 43(a) the Lanham Act, 15 U.S.C. § 1125(a)(1) provides, in relevant part:

Any person who, on or in connection with any goods or services … uses in


commerce any word, term, name, symbol, or device, or any combination thereof,
or any false designation of origin, false or misleading description of fact, or false
or misleading representation of fact, which (A) is likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship, or approval of his or
her goods, services, or commercial activities by another person … shall be liable in
a civil action by any person who believes that he or she is or is likely to be damaged
by such act.

The Seventh Circuit has held that stating a claim under this prong requires a plaintiff to show (1)

the defendant made a material false statement of fact in a commercial advertisement; (2) the

statement actually deceived or has a tendency to deceive a substantial segment of its audience; and

(3) the plaintiff has been or is likely to be injured as a result. Board of Forensic Document

Examiners, Inc. v. Am. Bar Assoc., 922 F.3d 827, 833 (7th Cir. 2019). Count I relies upon the

Complaint’s preceding allegations of fact to claim that Defendants – as a group and without

distinguishing who supposedly did what – violated Section 43(a) primarily through “Defendants’

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use of ‘Watch Communications’ or any confusingly similar name in connection with broadband

Internet services and related services.” (Cmplt. ¶¶ 66-67.)

But the Complaint does not allege that any Defendant utilized the “Watch

Communications” mark or any similar mark. Indeed, Watch alleges that an unnamed partner

“reached out to Jarman believing that Jarman was still employed by Watch,” and “came to realize

that Jarman was no longer a representative of Watch” when “he was then asked to sign a document

with a GRiT logo.” (Id. ¶ 57 (emphasis added).) This does not allege that Jarman (or anyone else)

used Watch’s mark, but instead describes a Watch partner who sought out Jarman based on the

partner’s own preexisting belief of affiliation and realized his mistake when Jarman appropriately

utilized GRIT’s mark and not Watch’s. (Id.) Likewise, Watch alleges that “Jarman was holding

himself out as a GRiT principal to Hometown Cable” and “acting as a GRiT principal, had planned

additional meetings with Hometown in the future.” (Id. ¶ 47 (emphasis added).) Thus, Count I

fails to state a claim against any Defendant based on a supposed use of Watch’s mark, and should

be dismissed on this basis.

II. Count VII: Civil Conspiracy

Watch next claims that all five Defendants – Grit and its four employees – engaged in a

civil conspiracy against Watch “to [1] start a competing business and [2] misappropriate Watch

proprietary materials for use in providing services to Watch customers and to directly compete

against Watch to provide those services.” (Cmpl. ¶ 118.) This claim fails as to Grit for myriad

reasons.

First, it is well established that “there is no independent cause of action for civil conspiracy

in Indiana. Rather, conspiracy may be a vehicle for recovery of damages from additional

defendants if the plaintiff can establish that the defendants acted in concert with another party in

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the commission of an independent tort.” Snyder v. Smith, 7 F. Supp. 3d 842, 876 (S.D. Ind. 2014)

(citation omitted, emphasis added); see also Newland Resources, LLC v. Branham Corp., 918

N.E.2d 763, 776 (Ind. Ct. App. 2009) (holding “civil conspiracy is not an independent cause of

action”; affirming dismissal of conspiracy claim). Where the alleged conspiracy merely reiterates

acts encompassed by other claims, the “conspiracy claim would clearly be duplicative,” and should

be dismissed. Snyder, 7 F. Supp. 3d at 877 (dismissing conspiracy claim that “adequately alleges

concerted action only against two defendants [] whose joint misconduct is already encompassed

by [another] claim”); see also Powell v. City of Berwyn, 68 F.Supp.3d 929, 950 (N.D. Ill. 2014

(where a conspiracy claim “does not allege any additional defendants or facts” beyond the claims

for the underlying misconduct, it is duplicative); Mission Measurement Corp. v. Blackbaud, Inc.,

287 F.Supp.3d 691, 725-26 (N.D. Ill. 2017) (similar, gathering cases).

This is precisely the case here. Watch’s alleged conspiracy does not pertain to “additional”

defendants, but merely reiterates the same conduct underlying its other counts against the exact

same parties. Thus, even assuming arguendo that Watch has sufficiently asserted some concerted

action, Count VII is entirely duplicative, and should be dismissed on that basis alone as to all five

Defendants. Snyder, 7 F. Supp. 3d at 876.

Second, as set forth herein, Watch has failed to state a claim for any underlying tort or

breach of contract. This too requires dismissal of the conspiracy claim because there can be no

liability for conspiracy without such underlying misconduct. See Snyder, 7 F. Supp. 3d at 877-78;

Meridian Fin. Advisors, Ltd. v. Pence, 763 F. Supp. 2d 1046, 1066 (S.D. Ind. 2011) (“civil

conspiracy cannot form the basis for a separate count of liability.”).

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Third, Watch claims that Grit conspired “to start a competing business.” (Cmpl. ¶ 118.)

This is plainly nonsensical; Grit is the supposedly competing business and could not have

participated in any conspiracy to “start” itself. Any such claim should be dismissed with prejudice.

Fourth, Grit cannot conspire with its own agents and employees as a matter of black-letter

law. As the Seventh Circuit noted approvingly, “Many cases hold that a corporation cannot be

liable for a conspiracy with one of its own employees. The reasoning is that a corporation can only

act and speak through an agent, and the effect of charging a conspiracy between the two is to

charge a conspiracy by a single party.” Pearson v. Youngstown Sheet & Tube Co., 332 F.2d 439,

442 (7th Cir. 1964) (citation omitted, emphasis added).1 The Southern District of Indiana granted

a motion to dismiss on similar grounds in Elder Care Providers of Ind., Inc. v. Home Instead, Inc.,

2015 WL 13632962, *4 (S.D. Ind. Dec. 10, 2015), holding that the intracorporate conspiracy

doctrine establishes that a “corporation cannot conspire with an agent when that agent is acting

within the scope of his authority” and thus the plaintiff failed to state a claim that the defendant

company conspired with its own officers. See also Tilbury v. City of Fort Wayne, 471 N.E.2d

1183, 1186 (Ind. Ct. App 1984) (affirming judgment on the pleadings because individual

defendants were all City employees and the City could not “scheme, contract or combine with

itself”).

Here, Watch has pled itself out of court by alleging that (a) all four individual Defendants

are Grit officers and/or employees (Cmpl. ¶¶ 7, 15, 35, 41, 47) and (b) they conspired with Grit to

“directly compete against Watch[.]” (Id. ¶ 118.) This fails to state a claim as a matter of law

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A litany of cases apply the intracorporate conspiracy doctrine to limited liability companies and note that the same
reasoning applies. See Ebonite Int’l, Inc. v. Hickland, 2018 WL 2107779, *3-4 (W.D. Ky. May 7, 2018)
(intracorporate conspiracy doctrine applied to claim alleging an LLC conspired with its member; dismissing for failure
to state a claim); Green v. Skyline Highland Holdings LLC, 2017 WL 10607256, *3 (E.D. Ar. Dec. 13, 2017) (same);
Bryant v. QuiBids LLC, 2012 WL 394154, *5 (N.D. Ill. Feb. 3, 2012) (same).

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because a principal cannot conspire with its agents and employees, and Count VII should be

dismissed with prejudice for this reason as well. Pearson, 332 F.2d at 442; Elder Care, 2015 WL

13632962, *4.

III. Count VIII: Unfair Competition in Violation of Common Law

Finally, Watch alleges that Defendants, as an undifferentiated group, have competed

unfairly with Watch under Indiana common law through “use in interstate commerce of Watch’s

trade secrets and proprietary information, as well as its [sic] false representations of an affiliation

with Watch as alleged herein[.]” This, too, fails for several reasons.

First, Count VIII is entirely duplicative and merely reiterates the same allegations

undergirding prior counts. Where a common law unfair competition claim “contains no new

allegations” and “fails to allege any wrongdoing not encompassed … elsewhere in the[]

complaint,” a court should “dismiss it as duplicative.” Heckler & Koch, Inc. v. German Sport

Guns GmbH, 2013 WL 12291720, *12 (S.D. Ind. Sept. 27, 2013) (dismissing unfair competition

claim as duplicative); see also Arbor Pharm., LLC v. ANI Pharm., Inc., 2018 WL 3677923, *5 (D.

Minn. Aug. 2, 2018) (“where an unfair competition claim is duplicative of another claim, the unfair

competition claim should be dismissed”; dismissing same); Zimmerman Grp., Inc. v. Fairmont

Foods of Minn., Inc., 882 F. Supp 892, 895 (D. Minn. 1994) (similar); Fraklin Elec. Pub., Inc. v.

Unisonic Prods. Corp., 763 F. Supp. 1, 5 (S.D.N.Y. 1991) (similar). Indeed, just weeks ago, the

Southern District of Indiana dismissed an unfair competition claim because it was entirely

duplicative in The Hartford Steam Boiler Inspection and Ins. Co. v. Campbell, 2021 WL 1225951,

*9 (Mar. 31, 2021) (gathering cases). So, too, here.

Second, the IUTSA provides that it “displaces all conflicting law of this state pertaining to

the misappropriation of trade secrets, except contract law and criminal law.” Ind. Code § 24-2-3-

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1(c). The Indiana Court of Appeals explicitly held that the IUTSA therefore preempts common

law causes of action based on misappropriating information, whether or not that information is

actually secret. HDNet LLC v. N. Am. Boxing Council, 972 N.E. 2d 920, 925-26 (Ind. Ct. App.

2012). The Southern District of Indiana dismissed an unfair competition claim on this basis in

Konecranes, Inc. v. Davis, 2013 WL 1566326, *4 (S.D. Ind. Apr. 12, 2013), holding:

Konecranes’ unfair competition claim is premised, at least in part, on [Defendants’]


alleged use of Konecranes’ confidential information to gain the business of
Konecranes’ former customers. The HDNet court concluded that the IUTSA
preempts common law claims based on misappropriation of trade secrets, and that
if the misappropriated information is not a trade secret, “the plaintiff has no legal
interest upon which to base his or her claim” anyway.

(Internal citations omitted, quoting HDNet, 972 N.E. 2d at 925); see also Hartford Steam, 2021

WL 1225951, *9-10 (similar; dismissing claim based on misappropriation of information as

preempted); Aegean, LLC v. Meridian Senior Living, LLC, 2019 WL 4142880, *5-6 (S.D. Ind.

Aug. 30, 2019) (similar). Watch’s unfair competition claim should therefore be dismissed with

prejudice because it is preempted by the IUTSA under Indiana law to the extent it is premised on

any alleged misappropriation of information.

Third, there is plainly no contractual basis for an unfair competition claim as to Grit, which

is a legal stranger to Watch. Thus, there can be no unfair competition claim based on a breach of

contract (which would be entirely duplicative in any event).

CONCLUSION

For all of the foregoing reasons, Grit respectfully asks this Court to dismiss Counts I, VII

and VIII against it in full and with prejudice, and to grant such further relief as may be appropriate.

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Respectfully submitted this 28th day of April, 2021,

/s/ Wendy D. Brewer


Wendy D. Brewer, #22669-49
FULTZ MADDOX DICKENS, PLC
333 N. Alabama Street, Suite 350
Indianapolis, IN 46204
Tel: 317.215.6220
E-mail: wbrewer@fmdlegal.com

Laura M. Brymer (#30989-10)


Fultz Maddox Dickens PLC
101 S. Fifth Street, Ste. 2700
Louisville, KY 40202
Telephone: 502.588.2000
E-mail: lbrymer@fmdlegal.com

and

Jeffrey L. Widman, Admission Pending


Laura Caplin, Admission Pending
Fox Rothschild LLP
321 N. Clark Street, Suite 1600
Chicago, IL 60654
Telephone: 312.980.3807
E-mail: jwidman@foxrothschild.com
lcaplin@foxrothschild.com
Attorneys for the Defendants

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Memorandum in Support of Motion to
Dismiss was filed electronically this 28th day of April, 2021. Notice of this filing will be sent to
all parties registered to receive such notice by operation of the Court’s electronic filing system.

/s/ Wendy D. Brewer


Wendy D. Brewer