American Dairy Queen Corporation v. McMurray et al

Filing 1

COMPLAINT For Preliminary and Permanent Injunctive Relief against Esther McMurray and John McMurray. Filing fee $350, receipt number 0866-2814670. Service due by 1/3/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet Civil Cover Sheet)(Ruskamp, Todd) Modified on 8/30/2011 to correct party information (Jones, Robin).

EXHIBIT C

AMERICAN DAIRY QUEEN CORPORATION

7505 Metro Boulevard
PO Box 390286
Minneapolis, MN 55439-0286
Telephone: [phone]

August 22, 2011
Hand-Delivered by Jim Weida
John & Esther McMurray
2635 Independence Blvd.
Kansas City, MO 64124-2433
Re:

Store #13699
2635 Independence Blvd., Kansas City, Missouri
NOTICE OF DEFAULT
NOTICE OF TRADEMARK INFRINGEMENT

Dear Mr. and Mrs. McMurray:
On August 9, 2011, Jim Weida and Terry Turner, as representatives of American Dairy
Queen Corporation (“ADQ”), conducted an evaluation of the conditions at your “Dairy
Queen” store at 2635 Independence Boulevard. As you know, they identified multiple
violations of health, food safety, sanitation, and facility standards established by ADQ
that apply to stores in the “Dairy Queen” franchise system. After reviewing the results
with you, they left a copy of those results for you. I have attached another copy of those
results, as well as a copy of the evaluation forms (which show the required standard for
each item) to this letter.
While all of the violations noted at your store were serious, we were alarmed to see that
many of the violations relate to food safety and cleanliness. To be frank, the current
conditions at your store are untenable and unacceptable. The appearance and condition
of your “Dairy Queen” store causes irreparable harm to the goodwill associated with
ADQ’s valuable trademarks and present a health and safety hazard to consumers.
You are hereby notified that the number and nature of the violations at your store
constitute a default of your April 7, 1952, Franchise Agreement with ADQ
(“Agreement”) as well as trademark infringement in violation of federal law. Due to the
egregious nature of the violations affecting food safety and cleanliness, ADQ hereby
demands that you close the store and cease operations immediately, and that you do not
reopen until your store obtains passing scores on both the Cleanliness Pride Check
(“CPC”) and the Food Safety Pride Check (“FSPC”) evaluations. This means you
must have 5 or fewer “red” violations on the CPC evaluation, and no critical violations
on the FSPC evaluation. Again, the evaluation standards and forms, and your recent
results, are attached to this letter.
We regret that the condition of your store has deteriorated to such an extent that it cannot
continue to operate under the “Dairy Queen” marks until you have cured the defaults.
Jim Weida will work with you to determine whether you have cured the violations by
passing the follow up cleanliness and food safety evaluations, and you should work

Mr. & Mrs. McMurrary
August 22, 2011
Page Two

directly with him regarding questions related to ADQ’s standards and scheduling of
follow up evaluations. You will not be permitted to reopen the store until you have
received confirmation in writing from ADQ that you may do so.
We are also concerned with your failure to pass the Facility Pride Check (“FPC”)
evaluation, and are troubled by many of the deficiencies noted in that report. At this
time, however, we want you to focus on fixing the cleanliness and food safety
deficiencies so that you can reopen your location. Once you have done so, we will then
work with you to determine requirements and timelines for addressing these facility
issues. To be clear, you are not required to pass a follow up FPC evaluation before
reopening the store for business.
ADQ is ready and willing to provide you with all appropriate guidance and information
that you need to remedy this unfortunate situation. But understand that ADQ requires
that you immediately cease operation of the store. If you fail to do so, we reserve all
legal rights and remedies available to us with respect to this matter, including
termination of the Agreement.
Should you have any questions about this Notice or the steps you need to take to reopen
the store, please feel free to contact me at the number below, or Jim Weida at 913-5795572.
Sincerely,
AMERICAN DAIRY QUEEN CORPORATION

Shelly H. O’Callaghan
Vice President & Assistant General Counsel
952/830-0308
Fax: [phone]
Email: [e-mail]
SHO/mjr/bill/defimmedclose13699-811.ltr
Attachments

Cc:

Jim Weida
Terry Turner
Todd Kiester
Mark Batesel

GP:3028786 v1

Lon Brew
Dan Kropp
Julie Chatleain
Russ Grundhauser

Jim Carlson
Jason Selby
Joanne Johnson