NOBLE ROMANS, INC. v. URBAN et al.

Filing 64

ORDER ON MOTION TO DISMISS - For the reasons stated herein, the Court GRANTS Union Valley's and Mr. Asefi's Motion to Dismiss 52 . The claims against Defendant Urban have not yet been resolved, therefore final judgment will issue in a separate judgement at the appropriate time. Signed by Judge Tanya Walton Pratt on 8/14/2015. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NOBLE ROMAN’S, INC.,
Plaintiff,
v.
UNION VALLEY TIGER MART,
ASIZ ASEFI, and JARROD URBAN,
Defendants.

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Case No. 1:14-cv-00919-TWP-TAB

ORDER ON MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed pursuant to Federal Rules of
Civil Procedure 12(b)(2), (3), and (6), by Defendants Asiz Asefi (“Mr. Asefi”) and Union Valley
Tiger Mart Inc. (“Union Valley”) (Filing No. 52). Following a dispute regarding the payment of
royalties under a franchise agreement, Plaintiff Noble Roman’s, Inc. (“Noble Roman’s”) filed an
Amended Complaint against Mr. Asefi, Union Valley and Jarrod Urban (“Mr. Urban”), alleging
(1) breach of contract, (2) violation of the Lanham Act, (3) deception under the Indiana Crime
Victims Relief Act, (4) replevin, (5) account, (6) unjust enrichment, and (7) injunctive relief.
(Filing No. 28.) On April 3, 2015, Mr. Asefi and Union Valley moved to dismiss the Amended
Complaint based on lack of personal jurisdiction, improper venue, and failure to state a claim.
Noble Roman’s has failed to respond to the Motion to Dismiss. For the reasons stated below the
Motion to Dismiss in GRANTED.
I.

FACTUAL BACKGROUND

Noble Roman’s is in the business of franchising the operation of Noble Roman’s pizza
franchises throughout the world. On or about November 22, 2002, Noble Roman’s and K. Jarrod
Urban entered into a Franchise Agreement (the “Agreement”), which provided, among other

things, terms for the operation of a Noble Roman’s franchise located at 5186 State Highway 276
W., Royse City, Texas 75189. Mr. Urban signed the Agreement on behalf of Union Valley, which
was a convenience store owned by J&J Pitt Stop Inc. (“J&J Pit Stop”). On June 2, 2005, J&J Pit
Stop and Mr. Urban sold all of its assets related to Union Valley, including the Agreement, to Mr.
Asefi. Thereafter, on November 3, 2005, Mr. Asefi established Union Valley as a domestic forprofit corporation authorized to conduct business in the state of Texas. On April 2, 2014, Noble
Roman’s was informed by Union Valley that it would no longer purchase ingredients from Noble
Roman’s, sell or market Noble Roman’s pizza at its location, or make any further royalty
payments. (Amended Complaint [Dkt. 28] ¶ 41.) Noble Roman’s filed the Amended Complaint
which alleges the Defendants have caused a breach of the Agreement, failed to pay royalties due,
and otherwise caused Noble Roman’s to suffer damages.
II.
A.

LEGAL STANDARDS

Rule 12(b)(2)
Federal Rule of Civil Procedure 12(b)(2) requires dismissal of a claim where personal

jurisdiction is lacking. After a defendant moves to dismiss under Rule 12(b)(2), “the plaintiff bears
the burden of demonstrating the existence of jurisdiction.” Purdue Research Found. v. Sanofi–
Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). Where the court determines personal
jurisdiction based only on reference to submissions of written materials, the plaintiff simply needs
to make a prima facie case of personal jurisdiction. GCIU–Employer Ret. Fund v. Goldfarb Corp.,
565 F.3d 1018, 1023 (7th Cir. 2009). In determining whether the plaintiff has met the prima facie
standard, the plaintiff is entitled to a favorable resolution of all disputed relevant facts. uBID, Inc.
v. GoDaddy Grp., Inc., 623 F.3d 421, 423-24 (7th Cir. 2010). If the defendant has submitted
evidence in opposition to the implementation of jurisdiction, however, “the plaintiff must go

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beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.”
Purdue, 338 F.3d at 782-83. The evidence submitted by the defendant may include affidavits
unless the affidavits merely contain conclusory assertions that the court lacks personal jurisdiction
over the defendant. Id. at 783 n.13 (citing Meier ex. rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d
1264, 1269 (11th Cir. 2002)). Thus, the court may go outside of the pleadings to decide a 12(b)(2)
motion.
B.

12(b)(3)
Pursuant to Federal Rules of Civil Procedure, the defense of “improper venue” may at the

option of the pleader be made by motion instead of a responsive pleading. Fed.R.Civ.P. 12(b)(3).
The plaintiff bears the burden of showing facts significant enough to establish that venue is proper.
MicroMetl Corp. v. TranzAct Technologies, Inc., 2008 WL 2356511, *3 (S.D. Ind. June 5, 2008).
C.

12(b)(6)
To defeat a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, at 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v lqbal, 556 U.S. 662,
678, at 663 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
III. DISCUSSION
As part of its factual allegations, the Amended Complaint incorporates the franchise
agreement between Noble Roman’s and Union Valley and a demand letter from Noble Roman’s
to Mr. Asefi. (Filing No. 28-1 and Filing No. 28-2).
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A. Dismissal pursuant to Rule 12(b)(2)
To begin, the Court will address Noble Roman’s allegation that it has personal jurisdiction
under Fed. R. Civ. P. 4(k)(1)(A) because the parties have agreed “in writing that any action
concerning a dispute between them relating to the agreement, which is the subject of this action,
shall be submitted to a court in Indianapolis, Indiana.” (Amended Complaint [Dkt. 28] ¶ 8, 9).
Fed. R. Civ. P. 4(k)(1)(A) provides that serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located. In order for Fed. R. Civ. P. 4 to establish
personal jurisdiction, the Court must be one of “general jurisdiction” which requires “continuous
and systematic contacts with the forum,” See Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408 (1984). The Court finds that Noble Roman’s has not pled sufficient facts to establish
general jurisdiction over Mr. Asefi and Union Valley. Mr. Asefi is a resident of the state of Texas
and Union Valley is a Texas corporation. The Amended Complaint does not allege that either Mr.
Asefi or Union Valley conducted any business in Indiana or that Mr. Asefi has ever physically
been to Indiana. Rather, the information before the Court is that Union Valley only operates in
the state of Texas and only serves customers within the state of Texas.
Noble Roman’s attempt to establish jurisdiction through the forum selection clause in the
Franchise Agreement also fails to establish specific jurisdiction.

Although the Franchise

Agreement states that the agreement was executed and all transactions are deemed to have occurred
in Indianapolis (Amended Complaint [Dkt. 28] ¶9), neither Mr. Asefi nor Union Valley were a
party to the Franchise Agreement.

(See Amended Complaint [Dkt. 28] Ex. I pg. 1, 30.)

Accordingly, the Court finds that Noble Roman’s has failed to allege sufficient facts to establish

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personal jurisdiction over Mr. Asefi and Union Valley and the Motion to Dismiss must be
GRANTED.
B. Dismissal Pursuant to Rule 12(b)(3) and Rule 12(b)(6)
Even if this Court were to find that there are sufficient minimum contacts to establish
personal jurisdiction, the Motion to Dismiss would still be granted as Noble Roman’s has failed to
meet its burden of showing facts significant enough to establish that venue is proper under Rule
12(b)(3) or that it has pled enough facts to state a claim to relief that is plausible on its face under
Rule 12(b)(6). As stated earlier, Noble Roman’s failed to respond to the Defendants’ Motion to
Dismiss its claims for (1) breach of contract, (2) violation of the Lanham Act, (3) deception under
the Indiana Crime Victims Relief Act, (4) replevin, (5) account, (6) unjust enrichment, and (7)
injunctive relief. Because of its failure to respond to Defendants’ arguments, Noble Roman’s has
conceded the points and arguments in Defendants’ brief. See Bonte v. U.S. Bank, N.A., 624 F.3d
461, 466 (7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver,” and “silence
leaves us to conclude” a concession.); Myers v. Thoman, 2010 U.S. Dist. LEXIS 107502, at *11
(S.D. Ind. Oct. 6, 2010) (“The Seventh Circuit has clearly held that a party who fails to respond to
points made . . . concedes those points.”); Cintora v. Downey, 2010 U.S. Dist. LEXIS 19763, at
*12 (C.D. Ill. Mar. 4, 2010) (“The general rule in the Seventh Circuit is that a party’s failure to
respond to an opposing party’s argument implies concession.”); Sequel Capital, LLC v. Pearson,
2010 U.S. Dist. LEXIS 109087, at *22 (N.D. Ill. Oct. 12, 2010) (same); Thomas v. Am. Family
Mut. Ins. Co., 2008 U.S. Dist. LEXIS 92440, at *13–14 (N.D. Ind. Nov. 13, 2008) (same). The
factual allegations and the claims asserted in the Amended Complaint alone are insufficient to
establish that venue is proper under Rule 12(b)(3) or to state a claim for relief that is plausible on
its face under Rule 12(b)(6).
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IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Union Valley’s and Mr. Asefi’s Motion
to Dismiss (Filing No. 52). The claims against Defendant Urban have not yet been resolved,
therefore final judgment will issue in a separate judgement at the appropriate time.
SO ORDERED.
Date: 8/14/2015

DISTRIBUTION:
Damon Mathias
MATHIAS CIVIL JUSTICE PLLC
[e-mail]
Gabriel A. Hawkins
COHEN & MALAD LLP
[e-mail]
Stephen L. Fink
BARNES & THORNBURG – Fort Wayne
[e-mail]
Jason P. Wischmeyer
FARMERS INSURANCE EXCHANGE AND
AFFILIATED COMPANIES
[e-mail]

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