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Inc. v. Hattenhauer Distributing Co.

United States District Court, S.D. Indiana, Indianapolis Division

February 27, 2017

NOBLE ROMAN'S, INC., Plaintiff,


          Hon. William T. Lawrence, Judge

         This cause is before the Court on the Defendant's motion for summary judgment (Dkt. No. 160). The motion is fully briefed, and the Court, being duly advised, GRANTS IN PART the motion for the reasons and to the extent set forth below.


         Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.”). The non-moving party bears the burden of specifically identifying the relevant evidence of record, and “the court is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).


         The facts relevant to the issues decided by the Court herein, viewed in the light most favorable to the Plaintiff, as the non-moving party, are as follow.

         Defendant Hattenhauer Distributing Company (“Hattenhauer”) owns and operates 21 gas stations and associated convenience stores. Relevant to this case are two of the stores, one located in Goldendale, Washington, and the other in Biggs Junction, Oregon. In April 2005, Hattenhauer signed a five-year agreement with the Plaintiff, Noble Roman's, Inc., (“Noble Roman's”) to operate a pizza franchise at its Oregon Location. This agreement was renewed in March 2011. In August 2006, Hattenhauer signed ten-year agreements with Noble Roman's to operate both a pizza franchise and a sub sandwich franchise at its Washington Location.

         Pursuant to its agreements with Noble Roman's, Hattenhauer was required to use ingredients approved by Noble Roman's in its franchises. This included Noble Roman's proprietary pizza cheese, which is a blend of mozzarella and Muenster cheese and dry oregano.

         In 2010, Noble Roman's changed its approved distributer for Hattenhauer's locations to McDonald Wholesale Company (“McDonald”). Between August 2010 and approximately August 2014, Hattenhauer purchased Golden California brand mozzarella cheese from McDonald rather than Noble Roman's proprietary cheese for its Oregon location, although it continued to purchase Noble Roman's proprietary cheese from McDonald for its Washington location. McDonald sent Noble Roman's monthly reports of the sales it made to Noble Roman's franchisees; the reports indicate that Hattenhauer's Oregon location was purchasing Golden California cheese and was not purchasing Noble Roman's proprietary cheese.


         Noble Roman's alleges that Hattenhauer's use of unapproved pizza cheese on the pizzas it sold at its Oregon location violated the Lanham Act “because it deceived customers into paying full price for a product Hattenhauer represented was a Noble Roman's pizza, but in fact was not.” Dkt. No. 177 at 21. Because “‘one of the most valuable and important protections afforded by the Lanham Act is the right to control the quality of the goods manufactured and sold under the holder's trademark, '” Hattenhauer's use of the wrong cheese injured Noble Roman's, it argues, because “[w]hen Hattenhauer used a different cheese, Noble Roman's lost its ability to control the products sold under its trademark.” Id. at 24 (quoting Desmond v. Chicago Boxed Beef Distrib., 921 F.Supp.2d 872, 881 (N.D. Ill. 2013)).

         Hattenhauer argues that Noble Roman's Lanham Act claim is barred by the doctrine of laches. Noble Roman's failed to respond to that argument in its response to the instant motion, and Hattenhauer argues that failure should be treated as a concession entitling it to a ruling in its favor. That is not consistent with Seventh Circuit precedent, however. Regardless of a non-moving party's failure to respond,

[a]s the moving party, the defendants still “ha[d] the burden to show that [they were] entitled to judgment under established principles.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (internal quotation marks omitted); accord Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir.2012). A moving party who fails to discharge this burden is not entitled to summary judgment, even if the nonmovant entirely fails to respond.

Gerhartz v. Richert, 779 F.3d 682, 685-86 (7th Cir. 2015). Thus, even though Noble Roman's wholly failed to address Hattenhauer's laches argument, the Court still must “‘ascertain that judgment [is] proper as a matter of governing law.'” Id. at 686 (quoting Johnson v. Gudmundsson,35 F.3d 1104, 1112 (7th Cir. 1994)). That said, “[i]t is not this court's responsibility to research and construct the parties' arguments, ” Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011), and “[i]t is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such ...

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