Romary Associates Inc v. Kibbi LLC et al

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 44 Report and Recommendations. The 33 Motion for Judgment on the Pleadings by Defendant Kibbi LLC is GRANTED IN PART and DENIED IN PART. The Court DISMISSES WITH PREJUDICE Count II of Plaintiff Romary Associates Inc's Complaint. The rest of Plaintiff's claims remain pending as pled. Signed by Judge Jon E DeGuilio on 7/12/11. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROMARY ASSOCIATES INC.,

)
)
Plaintiff,
)
)
v.
)
)
KIBBI LLC,
)
d/b/a Renegade Custom Coaches and Trailers, )
et al.,
)
)
Defendant.
)

Case No. 1:10-CV-376 JD

ORDER
On October 27, 2010, Plaintiff, Romary Associates Inc (“Romary”), filed a five-claim
complaint against several Defendants. See DE 1. On March 23, 2011, Defendant, Kibbi LLC,
filed a motion for judgment on the pleadings. See DE 33. Therein, Kibbi LLC argues that three
of the Romary’s five claims are unsustainable as pled. See DE 34. Specifically, Kibbi LLC
asserts that Romary’s second cause of action, unfair competition under the Lanham Act, is not
legally actionable, contending that Romary’s assertions of “trade dress” and “inherently
distinctive product design” can not be applied in protection of product concepts and ideas.
Additionally, Kibbi LLC argues that Romary’s third claim, breach of contract, is not actionable
under Indiana law, primarily because the parties’ “covenant not to compete” agreement is not
reasonable. Finally, Kibbi LLC contends that Romary’s fifth claim, misappropriation of trade
secrets, is not plausibly plead because the trade secrets identified in the complaint are either too
broad to provide adequate notice or are otherwise disclosed in Kibbi LLC’s patent and are,
therefore, not secret.
On April 20, 2011, Plaintiff, Romary Associates Inc (“Romary”) filed a response in

opposition, conceding that its second claim should be dismissed without prejudice but
challenging Kibbi LLC’s other arguments. See DE 38. On May 2, 2010, Kibbi LLC filed a
reply. See DE 39.
On June 7, 2011, the undersigned referred the motion to Magistrate Judge Cosbey for a
Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil
Procedure 72(b), and Northern District of Indiana Local Rule 72.1(c). See DE 43. On June 17,
2011, Magistrate Judge Cosbey issued his Report and Recommendation. See DE 44. Therein,
Magistrate Judge Cosbey recommends that the motion for judgment on the pleadings be granted
in part and denied in part. See DE 44.
Specifically, Magistrate Judge Cosbey recommends that Romary’s claim for unfair
competition be dismissed with prejudice based on Romary’s concession that the claim be
dismissed and Romary’s lack of substantive argument that dismissal be made without prejudice.
See DE 44 at 4-6. However, Magistrate Judge Cosbey recommends denying entering judgment
on Romary’s breach of contract claim, concluding that the claim would remain pending in
relation to the confidentiality provision of the parties’ non-disclosure agreement, regardless of
the viability and reasonableness of the agreement’s covenant not to compete provision. See DE
44 at 6-7. In addition, Magistrate Judge Cosbey recommends denying entering judgment on
Romary’s claim for misappropriation of trade secrets, concluding that Romary’s claim is pled
with sufficient particularity to provide Kibbi LLC with notice of the allegedly misappropriated
intellectual property. See DE 44 at 7-9.
As of this date, no party has filed an objection to the Report and Recommendation. See
Fed. R. Civ. P. 72(b)(2) (affording the parties fourteen days to file objections).

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The Court’s review of a Magistrate Judge’s Report and Recommendation is governed by
28 U.S.C. § 636(b)(1), which provides in part:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
Under Fed. R. Civ. P. 72(b), however, the Court must only make a de novo determination
of those portions of the Magistrates Judge’s Report and Recommendation to which specific
written objection have been made. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999). Fed. R. Civ. P. 72(b) (setting forth procedures for objecting to a Magistrate Judge’s
Report and Recommendation and the District Court’s standard of review for resolving
objections). If no objection or only a partial objection is made, the Court reviews those
unobjected portions for clear error. Id. In addition, failure to file objections with the district
court also “waives the right to appeal all issues addressed in the recommendation, both factual
and legal.”. Id. Under the clear error standard, the Court can only overturn a Magistrate Judge’s
ruling if the Court is left with “the definite and firm conviction that a mistake has been made.”
Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
Both 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) permit the parties to file objections
to a Report and Recommendation within fourteen days of being served with a copy of the same.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). More than 14 days have passed since the
entry of Magistrate Judge Cosbey’s Report and Recommendation, and no party has filed an
objection. Consequently, because the time period for objections has passed, the Court considers
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there to be no objection to Magistrate Judge Cosbey’s Report and Recommendation.
Having reviewed the Report and Recommendation and finding no clear error therein, the
Court ADOPTS the Report and Recommendation in its entirety, [DE 44], and incorporates all of
Magistrate Judge Cosbey’s findings and recommendations into this order. Accordingly, the
Court now GRANTS IN PART and DENIES IN PART Kibbi LLC’s motion for judgment on
the pleadings. [DE 33]. Specifically, the Court DISMISSES WITH PREJUDICE Count II of
Romary’s complaint. However, the rest of Romary’s claims remain pending as pled.
SO ORDERED.
ENTERED: July 12, 2011

/s/ JON D. DEGUILIO
Judge
United States District Court

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