Case 1:21-cv-01539-RLY-TAB Document 60 Filed 03/03/23 Page 1 of 18 PageID #: 1295

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

NOBLE ROMAN’S, INC., )

)
Plaintiff and Counterclaim Defendant, )
)
vs. )
)
AMI STORES MANAGEMENT, INC. )
AMI 57 LLC d/b/a AMI 70 FOOD MART, and )
AMI 63 LLC d/b/a AMI 63 FOOD MART, )
)
Defendants and Counterclaim Plaintiffs. )
) No. 1:21-cv-01539-RLY-TAB
_____________________________________________ )
)
AMI 59, LLC, )
)
Third-Party Plaintiff and )
Counterclaim Defendant, )
)
vs. )
)
NOBLE ROMAN’S, INC., )
)
Third-Party Defendant and )
Counterclaim Plaintiff. )

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

MOTION FOR PARTIAL SUMMARY JUDGMENT

Noble Roman’s, Inc. (“NRI”), by counsel, HOLLINGSWORTH ROBERTS MEANS

LLC, submits the following reply in support of its motion for partial summary judgment against

AMI Stores Management, Inc., AMI 57 LLC d/b/a AMI 70 Food Mart, and AMI 63 LLC d/b/a

AMI 63 Food Mart (the foregoing known herein as “AMI Stores”), and against AMI 59 LLC (with

all the AMI parties collectively known herein as “AMI”).

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A. NRI Objects to AMI’s Late-Filed Brief and Designation, both of which should be
disregarded as Untimely.

NRI filed its motion for summary judgment and designated materials on December 21,

2022. [Dkt. 47-50]. AMI filed a “notice” on January 6, 2023, seeking a 28-day extension to file

its response brief, with NRI’s agreement. [Dkt. 51]. This Court never ruled on the request

presumably because it was erroneously filed as a notice of automatic extension under Local Rule

6-1(a) and therefore would have not required the Court’s attention. The notice filing would later

be deemed “null and void.” [Dkt. 55]. In any event, on the day the first extension would have

expired, February 15, AMI filed a second request for extension seeking an additional two (2) days

to file its response. The Court granted the motion and extended AMI’s response filing deadline to

February 17. Id. “In doing so, the Court emphasized that failure to follow this Court’s local rules

may result in motions being denied in the future, among other consequences.” Id. (emphasis

added). Despite that warning, AMI again failed to follow the rules, this time by waiting an extra

day and then, without seeking further leave, filing its response brief the afternoon of Saturday

February 18.

AMI’s newest issue with minding the Court’s deadline was far from its first. In an August

2022 filing seeking to extend the discovery and dispositive motions deadlines (at that point, for a

third time), NRI detailed the task of contending with AMI’s slow compliance or noncompliance to

written discovery procedures, including not answering or responding to discovery requests that

had been pending for nearly three quarters of a year, and failing to supplement other incomplete

answers to discovery that was pending for even longer. [Dkt. 39]. NRI asked for deposition dates

on too many occasions to reasonably count. On NRI’s motion, the Court extended the discovery

deadline to October 4, 2022 and the dispositive motion deadline to November 4; the latter deadline

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was extended again to January 2, 2023 following logistical issues with taking Mr. Hamid’s

deposition. NRI filed its motion for summary judgment within the deadline.

While NRI filed motions to ensure compliance with the governing case management plan

in most instances necessitated by AMI’s tardiness, AMI seemingly operated on its own schedule.

Pursuant to the original case management plan [Dkt. 15], AMI’s preliminary witness and exhibit

lists were due on September 19, 2021. AMI never filed any, though it did file lists when the

deadline was revived and reset to March 7, 2002 by a later CMP amendment. [Dkt. 34]. AMI

never served a response to NRI’s timely made statement of special damages (due November 4,

2021). AMI never filed a statement of the claims or defenses that it intends to prove at trial (due

May 12, 2022). And AMI never filed final witness and exhibit lists (due on November 5, 2022).

The Court may, in its sound discretion, strike filings that fail to comply with the deadlines

set by applicable rules. Cleveland v. Porca Co., 38 F.3d 289, 298 (7th Cir. 1994). District courts

possess great authority to manage their caseload and have the right to expect that deadlines will be

honored. Dean v. Chicago Transit Auth., 118 F. Appx. 993, 996 (7th Cir. 2005). Indeed “we live

in a world of deadlines.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996). At the

very least, AMI should have requested leave in conjunction with its response brief that was filed

late, granted by but one day. Had it sought leave (which it did not), the Court would have looked

to whether AMI’s neglect was excusable. Fed. R. Civ. P. 6(b)(1)(B); see Keeton v. Morningstar,

Inc., 667 F.3d 877, 883 (7th Cir. 2012). Neglect is generally not excusable when a party should

have acted before the deadline. Flint v. City of Belvidere, 791 F.3d 764, 768 (7th Cir. 2015). While

there are factors courts weigh to determine whether to accept a late filing – granted, AMI’s

Saturday afternoon filing neither prejudiced NRI nor compromised the trial date in this case – the

most important of the factors is the reason for the delay. See Satkar Hospitality, Inc. v. Fox

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Television Holdings, 767 F.3d 701, 707 (7th Cir. 2014). “To establish excusable neglect, the

moving party must demonstrate genuine ambiguity or confusion about the scope or application of

the rules or some other good reason for missing the deadline….” Id. Here, there was no ambiguity

in the Court’s order setting AMI’s response filing deadline of February 17, or for that matter, in

the Court’s warning that consequences would result from AMI’s next failure to play by the rules.

[Dkt. 55].

When considering that AMI’s history cannot be deleted from the equation, NRI must

hereby object to the late filing pursuant to Local Rule 56-1(i). AMI’s response does not contain a

requisitely labeled statement of disputed facts section (see Local Rule 56-1(b)) either because AMI

did not mind the local rules or perhaps instead because AMI agreed to the entirety of NRI’s

designated facts but for a footnote. NRI’s facts should be deemed admitted as material and

uncontested. Further, AMI’s late-filed evidentiary designation and AMI’s arguments concerning

NRI’s designated evidence set forth within its unexcused, late-filed response brief, both should be

disregarded. See Local Rule 56-1(i) (“Any dispute over the admissibility or effect of evidence

must be raised through an objection within a party’s brief.”)

B. The Contracts were Breached

1. NRI provided AMI Stores with proper notice of their material breaches

The AMI Stores do not even attempt to refute that the franchise agreements were breached.

Indeed, AMI Stores accepted NRI’s statement of facts that listed a litany of AMI Stores’ breaches

across every franchise location. [Response Brief, Dkt. 56, p. 5]. Finding itself cornered, AMI

Stores seek an escape route by parsing the language of an April 23 default letter and arguing that

it somehow does not constitute notice.

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Section XVII of each franchise agreement provides the mechanism by which NRI can

terminate the agreement with subsection “(3)” discussing notice and an opportunity to cure prior

to termination for certain delineated breaches. [Ex. A, Hamid Dep., Ex. 2-7, § XVII]. On April

23, 2021, following NRI’s inspection of the AMI Stores locations earlier that month, NRI sent

AMI Stores a letter detailing the many breaches, providing in pertinent part as follows:

[Ex. D, Default letter].

Clinging to the decision in EraGen Biosciences, Inc. v. Nucleic Acids Licensing LLC, 540

F.3d 694 (7th Cir. 2008) but without any discussion of the case’s facts, AMI Stores claim they

were given insufficient information to effect a cure. In EraGen Biosciences, Inc., the noticing

party claimed that it provided EraGen sufficient notice to terminate the contract because it made a

passing citation to the allegedly breached contract section but only after a laundry list of other

provisions under which EraGen had allegedly failed to pay. EraGen Biosciences, Inc. v. Nucleic

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Acids Licensing LLC, 540 F.3d 694, 701 (7th Cir. 2008). The court held that “[i]t is asking far too

much for EraGen (or any other party) to read into that fleeting reference a claim that an

obligation—never before mentioned and even then not discussed at all—was being used as

grounds for termination.” Id.

Here, NRI did not provide AMI Stores merely a fleeting reference to a numerical section

in a contract. To the contrary, NRI identified each location, provided a description of the breach

(e.g., passing off non-Noble Roman’s products as Noble Roman’s, selling competing pizzas in

violation of non-competition agreements, missing ovens, cessation of operations, and failure to

sell required menu items), as well as the corresponding provision within the agreements breached.

[Ex. D, Default letter]. This was far from a mere fleeting reference, or as AMI Stores seem to

argue, no notice at all. Instead, the letter consisted of two full paragraphs of information to give

AMI Stores an opportunity to cure. No magic words are required to provide sufficient notice under

Indiana law, and certainly none were required by Section XVII or any other provision of the

governing contracts. Moreover, because NRI’s April 23 notice was sufficient, NRI properly

terminated the AMI Stores’ franchise agreements for breaches uncovered during the subsequent

August 2022 inspections pursuant to Section XVII(3)(o) of each agreement for repeated events of

material default. [Ex. A, Hamid Dep., Ex. 2-7, § XVII(3)(o)].

Next, AMI Stores try to pull a newfound red herring across our path by asserting the April

2021 breaches were not material, trying to cue up a question of fact (even without designating a

single material fact on the issue). No such questions exist. Pursuant to Section XVII(1), AMI

Stores agreed that “each of Franchisee’s obligations described in this Agreement is a material

and essential obligation of Franchisee; that nonperformance of such obligations will

adversely and substantially affect the Franchisor and the System; and that the exercise by

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Franchisor of the rights and remedies set forth herein is appropriate and reasonable.” [Ex. A,

Hamid Dep., Ex. 2-7, § XVII(1), emphasis added]. A narrative often advanced by AMI Stores is

that their failings were insignificant, a claim AMI Stores are simply unqualified to make and that

they simply cannot make after contractually agreeing that the very obligations they breached were

material and essential in nature. In any event, because any breach gives rise to a claim, NRI is

entitled to seek damages from AMI Stores’ even for an immaterial breach. See generally Frazier

v. Mellowitz, 804 N.E.2d 796, 807 (Ind. Ct. App. 2004).

2. AMI Stores were not entitled to a notice and cure period

NRI filed claims of breach of contract and trademark infringement while continuing its

business relationship with AMI Stores. 1 Unfortunately, the relationship deteriorated from there,

fueled by AMI Stores’ uncontroverted repeated breaches culminating with NRI’s termination of

the agreements. The breaches were material under the language of the governing contracts, the

notice given was more than sufficient, and the termination of the agreements was proper pursuant

to their terms. But all of that is totally irrelevant to NRI’s request here for an entry of summary

judgment that AMI Stores breached the franchise agreements. NRI has not moved for a

determination that it properly terminated the agreements (NRI maintains it did) because the

termination came later.

“A contractual obligation to provide notice and an opportunity to cure a default prior to

terminating a contract does not necessarily affect the aggrieved party’s right to sue for breach.”

Wisconsin Alumni Research Foundation v. Xenan Pharmaceuticals, Inc., 591 F.3d 876, 888 (7th

1
AMI Stores argue NRI abandoned its claims that AMI Stores used NRI branded products to make and sell pizzas at
a non-franchised store location and that the AMI Stores underreported sales. NRI designates evidence and provides
argument regarding breach of contract with respect to misuse of the NRI branded products. [NRI’s Brief, Dkt. 48, pp.
8 and 13.] NRI specifically sets forth in its motion and brief that it has not moved for summary judgment on its breach
of contract claims for underreporting sales and its trademark infringement claims against AMI 59 for misuse of the
branded products, as well as for damages. Unfortunately for AMI Stores, NRI has not abandoned these claims but
has saved them for trial.

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Cir. 2010); See also Norwood Promotional Products, LLC v. KustomKoozies, LLC, 835 F.Supp.2d

685, 696 (S.D. Ind. 2011). The Norwood Court explained that although a notice provision may

give the breaching party an opportunity to cure, “unless specifically set forth in the contract it does

not guaranty immunity from suit while the cure is being attended to.” Norwood Promotional

Products, LLC, 835 F.Supp.2d at 699.

The notice and cure periods provided for in the NRI franchise agreements pertain to

termination of the agreements. [Ex. A, Hamid Dep., Ex. 2-7, § XVII]. Section XVII gave NRI

the option to terminate following its notice letter, but NRI was also free to forgo termination,

initiate suit for breach, and wait and see if the relationship could be saved before ultimately

terminating the contracts following serial breaches by the AMI Stores. Section XIX(M) affirms

this election of remedies providing that “all rights and remedies of the parties to this Agreement

shall be cumulative and not alternative, in addition to and not exclusive of any other rights or

remedies… at law or in equity in case of any breach.” [Ex. A, Hamid Dep., Ex. 2-7, § XIX]. Unlike

prior to exercising a termination option, neither Section XVII nor any other section of the

agreements specifically provide that NRI must give AMI Stores notice and an opportunity to cure

prior to suing for a breach. Norwood Promotional Products, LLC, 835 F.Supp.2d at 699.

AMI Stores cannot merely fabricate an obligation that exists neither at law nor in the

contracts that NRI sued upon. NRI had no obligation to provide AMI Stores with notice and an

opportunity to cure prior to filing its lawsuit for breach of contract.

3. AMI Stores performance was not impossible

AMI Stores’ response brief contains yet another newly concocted defense – for the first

time, AMI Stores says it was impossible for them to perform the contracts. [Counterclaim/ Compl.

Joinder Plaintiff, Dkt. 8.] Impossibility is an affirmative defense to performance of an executory

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contract. Wagler v. West Boggs Sewer District, Inc., 980 N.E.2d 363, 378 (Ind. Ct. App. 2012).

Rule 8(c) of the Federal Rules of Civil Procedure states: “In response to a pleading, a party must

affirmatively state any avoidance or affirmative defense….” Fed. R. Civ. P. 8(c). AMI Stores

waived the affirmative defense of impossibility when they failed to preserve the defense by

pleading it. See Burton v. Ghosh, 961 F.3d 960, 965 (7th Cir. 2020). The advancement of this late

affirmative defense prejudices NRI because it deprives it of the opportunity to prepare to meet the

defense through discovery. See Reed v. Columbia St. Mary’s Hospital, 915 F.3d 473, 482 (7th

Cir. 2019) (plaintiff was prejudiced by an untimely affirmative defense first raised at summary

judgment as timing deprived her of notice and the opportunity to prepare to meet the defense

through discovery). As such, this eleventh hour defense first raised in a summary judgment

response brief should be deemed waived.

Even if AMI Stores did not waive the defense, it is inapplicable. To prevail on the defense

of impossibility, AMI Stores must demonstrate that performance is “not merely difficult or

relatively impossible, but absolutely impossible, owing to the act of God, the act of law, or the loss

or destruction of the subject-matter of the contract.” Wagler, 980 N.E.2d at 378 (quoting Ross

Clinic, Inc. v. Tabion, 419 N.E.2d 219, 223 (Ind. Ct. App. 1981)) (quoting Krause v. Bd. of

Trustees of Sch. Town of Crothersville, 70 N.E. 264, 265 (Ind. 1904)). AMI Stores’ affirmative

defense of impossibility fails because AMI Stores argue difficulty of performance, but not absolute

impossibility as required by Indiana law. [Response Brief, Dkt., pp. 12-13.] See Wagler, 980

N.E.2d at 378.

C. NRI’s Marks were Actionably Infringed Upon due to AMI Stores’ Confusing Use

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 AMI Stores’ use of

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the mark is likely to cause consumer confusion. Serenity Springs v. LaPorte Cnty. Convention and

Visitors Bureau, 986 N.E.2d 314, 321 (Ind. Ct. App. 2013). AMI Stores do not dispute that NRI

has a protectable interest in its marks. 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

degree and care likely to be exercised by consumers; (5) the strength of plaintiff’s mark; (6) any

actual confusion; 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).

AMI Stores do not address AutoZone factors 1, 3, 5, and 6 in their response brief. With

respect to AutoZone factor 2, similarity of product, AMI Stores argue that NRI’s Lanham Act

claims fail because the food items sold by AMI Stores from the NRI counter were not the exact

items sold by NRI. Trademark law prohibits use of NRI’s mark not only on products that are in

direct competition with those of NRI, but also on products that are considered “closely related” to

NRI’s products. See Sands, Taylor & Wood, Co. v. Quaker Oats Co., 978 F.2d 947, 958 (7th Cir.

1992). A “closely related” product is one that “would reasonably be thought by the buying public

to come from the same source, or thought to be affiliated with, connected with, or sponsored by,

the trademark owner.” Sands, Taylor & Wood, Co., 978 F.2d at 958 (internal citations omitted);

See also James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 274-77 (Sign of the

Beefeater restaurants creates likelihood of confusion with Beefeater gin) (7th Cir. 1976); Scarves

by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1174 (2d Cir. 1976) (use of mark Vera on

cosmetics and perfume infringed the mark Vera on designer apparel and household linens).

The NRI brand offerings have included many offerings “closely related” to the offerings

AMI Stores sold from the NRI counter including hamburgers, sub sandwiches, chicken wings, and

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dessert items. [Ex. B, Mobley Aff. ⁋ 8]. While AMI Stores’ food offerings may have varied versus

those being sold by NRI, the risk of confusion remains given AMI Stores’ use of NRI’s marks, the

similarity of the product offerings, and the scope of NRI’s menu. Contrary to AMI Stores’

assertion, the lack of an NRI label on each individual food offering, does not save AMI Stores

from infringement. While not having an NRI sticker, the offending products were “wrapped” in

the NRI display surrounded by NRI’s marks. [Ex. A, Hamid Dep. 45:16- 48:8, 63:25- 65:16, 81:16-

83:7, 92:9- 94:9, 98:19- 100:21, 101:24- 102:7, Ex. 11-13, 1 23-24, 38-39, 47-49, and 51-53;

Exhibit B, Mobley Aff. ⁋⁋ 6, 13].

In the likelihood of confusion analysis, no single factor is dispositive and courts may assign

varying weights to each of the factors depending on the facts of the case. CAE, Inc. v. Clean Air

Engineering, Inc., 267 F.3d 660, 678 (7th Cir. 2001). AutoZone factor 4, degree of care of

consumers, under the facts of this case in the setting of a convenience store likely carries a lesser

weight of importance in the analysis and might very well be a wash for both parties. However,

this does not change that confusion is likely through the equitable balance of the remaining factors.

Even if AMI Stores did not intend to “palm off” their products (AutoZone factor 7), “a finding of

fraudulent intent or bad faith is not essential to prove infringement where likelihood of confusion

already exists.” Sands, Taylor & Wood, Co., 978 F.2d at 961 (internal citations omitted). The

designated evidence and balance of the AutoZone factors supports a finding that AMI Stores’ use

of NRI’s marks to sell similar food items was likely to cause confusion.

D. A Supplier’s 3% Service Fee Constitutes neither a Fraudulent nor Illegal act.

AMI Stores designate no evidence whatsoever of NRI receiving a 3% fee on AMI Stores’

purchases. Because this a fact upon which AMI Stores’ entire argument is built, the inquiry should

go no further and summary judgment for NRI on the claims is warranted. But even if there was a

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material dispute to be made of NRI receiving renumeration from its suppliers, AMI Stores’

argument would fail from the start because it admitted that NRI disclosed, in plain language, that

NRI may receive credits or rebates from suppliers based on purchases made by franchisees. [Ex.

A, Hamid Dep., Ex. 2-7, § XIX(Q) and Ex. 8, NRIAMI001342, 1343, and 1491]. NRI even

disclosed to AMI Stores that commissions and allowances constituted nearly 13% of NRI’s prior

year revenue. [Ex. A, Hamid Dep., Ex. 2-7, § XIX(Q) and Ex. 8, NRIAMI001342-1343]. AMI

Stores’ principal admitted that he received the document. [Ex. A, Hamid Dep., Ex. 8,

NRIAMI001491].

To avoid summary judgment, AMI Stores supplant designated facts with a restyling of

their claim, spinning a hypothetical wherein it would be acceptable for NRI to keep a portion of a

supplier’s gross profits on product sales to a particular franchisee (like the AMI Stores) but not

okay for NRI to share in the same supplier’s fee revenues charged through to the same franchisee.

That NRI may receive incentive benefits from its suppliers should have at the very least fallen

within the realm of AMI Stores’ contemplations made before entering into the franchise

agreements six times over. AMI Stores use an illogical play on semantics – saying the fee was

something other than a “credit or rebate” – to breathe life back into both their common law

fraudulent inducement claim and the sister claim made under Florida’s Deceptive and Unfair Trade

Practices Act, Section 501.201, et seq. (“FDUTPA”). But the hot air serves to benefit neither.

AMI Stores performed no discovery, and thus have no facts to designate, as to a supplier’s service

fee that it now is apparently of such concern that the topic covers ten pages of the response brief.

All those pages of innuendo, argument, and fervor are not evidence. Scherer v. Rockwell Int’l

Corp., 975 F.2d 356, 361 (7th Cir. 1992).

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AMI Stores imply that they were force-fed the fee in some sort of sleight of hand play by

NRI. Not only was the fee disclosed in plain view, but AMI Stores had a contractual right to

choose a different supplier. Specifically, the Florida Disclosure Document sets forth only that a

franchisee must make certain purchases from approved distributors, but not from one specific

distributor. [Ex. A, Hamid Dep., Ex. 8, § 8, NRIAMI001342-1343]. Franchisees like AMI Stores

thus maintain the right to request approval to purchase products from a new or different supplier.

[Id.] Of course, AMI Stores would know this because their principal read and understood all of

the franchise documents.

[Ex. A, Hamid Dep., Ex. 2-7, § XX(B)].

Furthermore, NRI did not bait AMI Stores with a royalty deal and switch to a royalty plus

percent over product deal, as AMI Stores seems apt to argue. The service fee charged by the NRI

supplier, of which 1.5% was received by NRI and 1.5% by NRI’s lead supplier pursuant to

agreements between NRI and its suppliers for work done by both NRI and the lead supplier to

maintain franchise distribution that allows NRI to use its buying power to secure advantageous

price points for franchisees like AMI Stores. [Ex. G, Supplemental Affidavit of Paul Mobley ¶ 3].

Even if AMI Stores chose the percent over product deal, this service fee could still have been

charged. [Id. at 4]. While Florida law does not have a similar statutory provision, the

comprehensive regulatory scheme of the Indiana Franchise Deceptive Practices Act specifically

allows a franchisor to receive compensation for work performed in this manner. See I.C. § 23-2-

2.7(1)(4). This was an operational advantage to AMI Stores, not a nefarious money grab by NRI

as AMI Stores allege.

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1. There was no fraudulent inducement as to the 3% supplier fee.

The law governing AMI Stores’ common law fraud claims requires a showing of reliance

and injury. See Barnes v. Burger King Corp., 932 F. Supp. 1420, 1425 (S.D. Fla. 1996); Great

Lakes Anesthesia, P.C. v. O’Bryan, 99 N.E.3d 260, 274, n. 6 (Ind. Ct. App. 2018). A plaintiff also

must show that the defendant misrepresented a material fact to induce the plaintiff to enter into a

contract. Barnes v. Burger King Corp., 932 F. Supp. 1420, 1425 (S.D. Fla. 1996). In the instant

case, AMI Stores do not even allege a misrepresentation let alone designate evidence of one made

by NRI. Instead, AMI Stores conceded the material fact that they received and understood the

documents that disclosed NRI receives fees from suppliers. Furthermore, the contracts AMI Stores

executed contain a merger clause whereby they agreed not to make after-contracting disputes about

their contrived pre-contractual understandings or assurances they received. [Ex. A, Hamid Dep.,

Ex. 2-7, § XIX(B)].

2. A 3% supplier fee does not constitute a deceptive practice under Florida law.

Citing to neither the statute nor any interpretive case law amongst the single paragraph

devoted to the issue, AMI Stores prescribe their own test for whether an act constitutes an FDUTPA

violation, writing that “if the 3% charge was fraudulent or improper such would constitute a

violation of the FDUTPA as being deceptive or unfair.” [Response Brief, Dkt. 56, p. 18]. The fee

charged by an NRI supplier was not fraudulent because there was no misrepresentation made by

NRI; on the contrary, the fee was disclosed to AMI Stores. AMI Stores’ made-up test

notwithstanding, the law of their home state finds that a merged contract writing negates any

FDUTPA claim premised on an alleged contradictory pre-contract misrepresentation. See TRG

Night Hawk Ltd. v. Registry Development Corp., 17 So.3d 782, 784 (Fla. 2d DCA 2009). In fact,

such claims for relief are barred as a matter of Florida law. Id.

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E. AMI does not have an actionable FDUTPA claim based on an expired settlement
proposal made by a NRI employee concerning AMI 59.

AMI’s argument for the claim that a pre-suit negotiation with NRI gives rise to a deceptive

business practice follows a familiar pattern – no evidence or law, just semantics games played with

AMI’s tailor-made rulebook. In this chapter, AMI argues that it would have been okay for NRI to

convey during negotiations that it intended to file a lawsuit if AMI Stores failed to pay monetary

renumeration for knocking-off (intentionally, carelessly, by utter coincidence, or otherwise) NRI’s

pizza operation at a non-franchised convenience store. But according to AMI Stores, when NRI

proposed to resolve the dispute through expansion of the parties’ relationship to include the non-

franchised location owed by AMI 59 where it was embarking upon a pizza-selling operation, the

proposal arose to “mafia, Narco Trafficante tactics.” [Response Brief, Dkt. 56, p. 19]. NRI’s pizza

may certainly be addictive to its loyal customer base. But NRI’s means of ‘trafficking’ pizza to its

customers is far less racy than AMI gives it credit for. NRI merely proposed to settle a burgeoning

dispute by expanding its franchise network to include a store (AMI 59) where AMI was firing up

a pizza operation. This is no more extortive than it is dramatic, is not unfair, and is not an unethical

or oppressive practice. It was an idea. AMI was not coerced to accept it and, indeed, declined it.

AMI 59’s dramatic storyboarding aside, NRI made a proposal to settle a dispute that was an

alternative to demanding cash, which is something courts in this circuit generally would favor and

encourage. See generally Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 616 F.2d 1006,

1013 (7th Cir. 1980) (citations omitted) (“the law generally favors and encourages settlements.”).

Amongst inuendo of extortion, visions of mafia bosses, tales of dirty photos stashed

under the mattress, and four-plus pages spent on a cut-and-paste of a 2015 Florida case about the

FDUTPA, AMI ultimately concedes the very basis of NRI’s summary judgment – that AMI has no

actual money damages related to NRI’s settlement proposal and therefore cannot bring such a

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claim including consequential damages. AMI 59 therefore clings to its FDUTPA claim only for

the right to seek declaratory and injunctive relief. In other words, AMI 59 is apparently litigating

this case, once you delete the prayer for consequential damages that AMI 59 now says was a

typographical error in its pleading, seeking this Court to declare improper NRI’s proposal to settle

a dispute through expansion of the franchise relationship to AMI 59, and to enjoin NRI from

making any such a proposal down the road. Declaratory relief would not be warranted, as the

settlement proposal was not a nefarious or illegal act. Injunctive relief is not properly requested

and would be moot in any event given the parties’ relationship has terminated. NRI has no designs

of ever again proposing that AMI 59 sell Noble Roman’s Pizza at the Tallahassee store.

F. Conclusion

AMI Stores have designated no evidence which would create a material fact question and

have admitted that they breached the franchise agreements. Changing the focus to notice does not

matter to the disposition of the breach claim. NRI designated evidence of the contractual notice

given to AMI Stores for the series of breaches, but notice was not even required by law for the

breach claims at issue. As to the trademark infringement claims, the designated evidence,

uncontroverted by anything other than empty argument by AMI Stores, and the factor analysis

support a finding that AMI Stores’ use of NRI’s marks to sell similar food items, was likely to

cause confusion.

As to AMI’s defensive claims, NRI did not violate the FDUTPA and did not commit fraud

by way of a fee charged by its supplier or through the settlement negotiations it participated in

with AMI concerning AMI 59. There is no evidence of the fee to support AMI’s argument and, in

any event, supplier incentives were disclosed in advance in clear writing and the franchise

agreements contained a merger clause. NRI also did not “extort” AMI Stores or in any way violate

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the FDUTPA when, during negotiations, it proposed expansion of the franchise relationship as an

alternative to demanding a monetary settlement payment in response to one of the first known

instances of AMI’s contract breach. AMI admits there are no damages, so a claim under the

FDUTPA is not viable on its face.

The only claims which should survive summary judgment and become ripe for trial are (1)

the breach claims relating to AMI Stores’ underreporting of sales, (2) the trademark infringement

claims against AMI 59 for making knock-off pizzas with NRI’s ingredients at a non-franchise

location, and (3) NRI’s damages for all claims.

Respectfully submitted,

HOLLINGSWORTH ROBERTS MEANS LLC

/s/ Jeffrey D. Roberts

Jaime L. Meyer
Atty No. 23686-29
Jeffrey D. Roberts
Atty No. 23723-53
Ashley R. Roncevic
Atty. No. 30333-18
12801 E. New Market St.
Carmel, IN 46032
Office: (317) 569-2200
Facsimile: (317) 569-2210
jmeyer@hrmlaw.com
jroberts@hrmlaw.com
aroncevic@hrmlaw.com
Attorneys for Noble Roman’s, Inc.

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CERTIFICATE OF SERVICE

This is to certify that on March 3, 2023, the foregoing paper was filed electronically with

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

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

filing through the ECF system.

Don Pinaud, Esq.

All Florida Justice, LLC
Law Office of Don Pinaud
4530 St. John Ave., Ste. 15-202
Jacksonville, FL 32210
don@allfloridajustice.com

/s/ Jeffrey D. Roberts

Jeffrey D. Roberts

HOLLINGSWORTH ROBERTS MEANS LLC

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

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