Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Inc. v. Allison

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

September 19, 2019

NOBLE ROMAN’S, INC., Plaintiff,
v.
RUSSELL ALLISON d/b/a ANDY ALLIGATOR’S FUN PARK, Defendant.

          ORDER ON DEFENDANT’S MOTION TO TRANSFER AND MOTION TO DISMISS

          TANYA WALTON PRATT, JUDGE.

         Before the Court is a Motion to Transfer pursuant to 28 U.S.C. § 1404(a), filed by Defendant Russell Allison (“Allison”) (Filing No. 9), as well as Allison’s Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) (Filing No. 11). This matter surrounds a dispute regarding the payment of royalties under a franchise agreement as well as other contractual disputes. Plaintiff Noble Roman’s, Inc. (“Noble Roman’s” or “Plaintiff”) filed this action alleging breach of contract, deception, and Lanham Act violations. Allison moved to dismiss the claims for breach of contract and deception and also moved to transfer the case to the Western District of Oklahoma. For the following reasons, the Court denies the Motion to Transfer and grants in part and denies in part the Motion to Dismiss.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required when reviewing a motion to dismiss, the Court accepts as true all factual allegations in the complaint and draws all inferences in favor of Noble Roman’s as the non-moving party. See Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).

         Noble Roman’s is an Indiana pizza company based in Indianapolis, Indiana that franchises its product-a distinctive system of offering Noble Roman’s pizza, breadsticks, and related food items-and offers these franchise opportunities through a franchise agreement. Noble Roman’s uses certain trade names, service marks, trademarks, logos, images, emblems, and indicia of origin that it designates for use in connection with its distinctive system (Filing No. 1-2 at 1, 4–5).

         Allison resides in, and operates a business called Andy Alligator’s Fun Park (“Andy Alligator’s”) in Norman, Oklahoma. Andy Alligator’s is a family entertainment center that provides games, miniature golf, miniature bowling, go-karts, bumper cars, a rock-climbing wall, laser tag, and other attractions. On October 17, 2006, Noble Roman’s and Allison entered into a franchise agreement, that allowed Allison to operate a franchised Noble Roman’s business at Andy Alligator’s. The franchise agreement provided a ten-year period for Allison to operate the Noble Roman’s business and offer Noble Roman’s food at that location. Allison operated the franchise from November 16, 2007 through November 16, 2017. Id. at 1–2, 12.

         Under terms of the franchise agreement, Allison was to provide Noble Roman’s a weekly report of his gross sales of all products and services related to Noble Roman’s. He was obligated to pay Noble Roman’s a continuing weekly royalty fee in the amount of seven percent of the gross sales, which was due and payable each week based on the gross sales for the preceding week. And, he was required to pay interest on any royalty fees not received by Noble Roman’s when the fees were due. The contract also gave Noble Roman’s the right to audit Allison’s books and records. Id. at 2–3.

         Under the franchise agreement, Noble Roman’s granted Allison the right to use its trade names, service marks, trademarks, and such in connection with the operation of the franchised business at the Andy Alligator’s location. Allison was allowed to use Noble Roman’s intellectual property only in connection with the operation of the franchised business and was prohibited from taking any action that would prejudice or interfere with the validity of Noble Roman’s rights. Allison was required to stop using the intellectual property upon termination or expiration of the franchise agreement. He was also required to stop using any confidential methods, procedures, techniques, and the distinctive forms, slogans, signs, symbols, and devices associated with Noble Roman’s system after the termination or expiration of the franchise agreement. Allison was not to communicate to others or use for his own benefit any information, knowledge, know-how, techniques, or materials used with the Noble Roman’s system after the termination or expiration of the franchise agreement. The franchise agreement required Allison to return to Noble Roman’s all materials, items, and images used in connection with the franchised business. Furthermore, the franchise agreement established a two-year “non-compete” period following the termination or expiration of the agreement. Id. at 3–5. The contract also contained a provision that states,

“WITH RESPECT TO ALL CLAIMS, CONTROVERSIES, DISPUTES OR ACTIONS, THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED UNDER INDIANA LAW.... FRANCHISOR AND FRANCHISEE AGREE THAT ANY DISPUTES ARISING OUT OF THIS AGREEMENT WILL BE SUMITTED (sic) TO A COURT IN INDIANAPOLIS, INDIANA.”

(Filing No. 1-2 at 38–39) (emphasis in original).

         In May 2015, Noble Roman’s performed an audit of the gross sales reported by Allison between September 2014 and April 2015. Based on this audit, it determined that Allison failed to pay certain royalty fees when they were due, and these unpaid fees amounted to at least $3,837.22 with respect to gross sales beginning in September 2014. Noble Roman’s also determined that Allison provided false and inaccurate weekly reports of gross sales beginning in September 2014 for the purpose of avoiding payment of royalty fees (Filing No. 1-2 at 3).

         After Allison stopped operating the franchised business in November 2017, he continued operating food service facilities at Andy Alligator’s and has been selling pizza, breadsticks, and related food items, and has been using Noble Roman’s intellectual property, confidential methods, procedures, techniques, distinctive forms, slogans, signs, images, and symbols in connection with his food service operations. Allison’s food service operations are of a character and concept similar to Noble Roman’s and are competing with or are prejudicial to Noble Roman’s goodwill and business. Furthermore, Allison failed to return to Noble Roman’s all materials and items related to the franchised business as required by the franchise agreement. Id. at 5–6.

         Noble Roman’s notified Allison of his defaults under the franchise agreement and violations of the Lanham Act, and demanded that Allison stop selling pizza and related food items at Andy Alligator’s, stop using Noble Roman’s intellectual property, return all Noble Roman’s materials and items, and pay damages for breach of the franchise agreement and violation of the Lanham Act. Allison did not comply with Noble Roman’s demands. Id. at 6.

         Noble Roman’s filed a Complaint against Allison on November 16, 2018, in Indiana state court, asserting claims for breach of contract, deception, and violation of the Lanham Act. Allison removed the action to federal court on December 19, 2018 (Filing No. 1). Shortly thereafter, Allison filed the instant Motion to Transfer pursuant to 28 U.S.C. § 1404(a) and Motion to Dismiss pursuant to Rule 12(b)(6).

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint that has failed to “state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski, 550 F.3d at 633. However, courts “are 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).

         The complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the United States Supreme Court explained that the complaint must allege facts that are “enough to raise a right to relief above the speculative level.” 550 U.S. 544, 555 (2007). Although “detailed factual allegations” are not required, mere “labels,” “conclusions,” or “formulaic recitation[s] of the elements of a cause of action” are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) (“it is not enough to give a threadbare recitation of the elements of a claim without factual support”). The allegations must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. Stated differently, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be facially plausible, the complaint must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.