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Thomsen v. Famous Dave's of America, Inc.: US Distrct Court : CONTRACT | COPYRIGHT | FRANCHISE - copyright infringement, contract claims regarding restaurant designs fail

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Allen R. Thomsen, Civil No. 07-1989 (DWF/RLE)
d/b/a AJ Sign Company,
Plaintiff,
v. MEMORANDUM
OPINION AND ORDER
Famous Daves of America, Inc.,
a Minnesota corporation; Signworks
d/b/a Kurt W. Buggs Signworks; and
Vomela Specialty Company, a
Minnesota corporation,
Defendants.
Aaron W. Davis, Esq., Brian L. Stender, Esq., Eric H. Chadwick, Esq., and Casey A.
Kniser, Esq., Patterson Thuente Skaar & Christensen, PA, counsel for Plaintiff.
David T. Schultz, Esq., JoLynn M. Markison, Esq., Emily M. Rome, Esq., and Keiko L.
Sugisaka, Esq., Maslon Edelman Borman & Brand, LLP, counsel for Famous Daves of
America, Inc. and Signworks d/b/a Kurt W. Buggs Signworks.
David T. Schultz, Esq., JoLynn M. Markison, Esq., Emily M. Rome, Esq., Keiko L.
Sugisaka, Esq., Maslon Edelman Borman & Brand, LLP; and Craig S. Krummen, Esq.,
Winthrop & Weinstine, PA, counsel for Vomela Specialty Company.
INTRODUCTION
This matter is currently before the Court on a Motion for Summary Judgment
brought by Famous Daves of America, Inc. (Famous Daves), Signworks d/b/a
Kurt W. Buggs Signworks, and Vomela Specialty Company (collectively referred to as
Defendants). For the reasons stated below, the Court grants Defendants motion.
2
BACKGROUND
Famous Daves is a chain of American barbeque restaurants. Dave Anderson is
one of the founders of Famous Daves. In 1995, Anderson contacted Allen Thomsen to
discuss signs and dcor to be used in the first Famous Daves restaurant in the Linden
Hills neighborhood of Minneapolis, Minnesota.1 This restaurant was a flagship
restaurant for what would become a national chain of restaurants. Anderson met with
Thomsen in June 1995, at which time Anderson presented a four-page document
containing his ideas for the restaurant. The concept provided in part for [a] traditional
roadside BBQ Shack with an interior that [f]eatures the look [and] feel of a typical
roadside BBQ shack that could be found throughout middle America with collectible
Americana antiques [and] memorabilia on the walls. (Decl. of David T. Schultz in
Supp. of Defs. Mot. for Summ. J. (Schultz Decl.) 6, Ex. D (Dep. of Dave Thomsen
(Thomsen Dep.)) at 51, Ex. 7.)
After the initial meeting, Thomsen prepared conceptual drawings for the Linden
Hills restaurant. Thomsen indicated on the drawings that they were his property and not
for reproduction. (Decl. of Alan R. Thomsen (Thomsen Decl.), 2, Ex. A.) After the
drawings were approved by Anderson, Thomsen designed dcor and signage for the
1 Anderson had observed Thomsens design work at East Side Marios, a restaurant
in Minnetonka, Minnesota.
3
shack theme of the Linden Hills restaurant.2 After working on the Linden Hills
restaurant, Anderson asked Thomsen to work on a restaurant in Woodbury, Minnesota, and
specifically to recreate the shack theme. Thomsens conceptual drawings for the
Roseville restaurant included signs used in the Linden Hills restaurant as well as new
designs. By October 2001, Famous Daves opened at least thirty-six restaurants, both
company-owned and franchise-operated. Thomsen painted the signs for roughly twenty
of these restaurants, including the Blues Club format of the Calhoun Square,
Minneapolis location; the Lodge format of the Minnetonka, Minnesota restaurant; and
the first franchise-operated restaurant in Burnsville, Minnesota.
At some point during the expansion, Famous Daves asked Thomsen to create
twenty to thirty-five sign packages for inventory. On November 18, 1997, Thomsen sent
a letter to Mark Payne, a representative of Famous Daves:
At the request of Famous Daves of America, AJ Signs will produce and
have in inventory 20-35 of each of the signs that are part of the FAMOUS
DAVES PERSONALIZED SIGN PACKAGE. These signs are used for
decor pieces in the Famous Daves BBQ restaurants.
These signs are produced by AJ Signs solely at the request of Famous
Daves. If for a reason or no reason Famous Daves would find a new sign
vendor, change their theme or simply not need this inventory, Famous
Daves of America is responsible for the purchase of all of the inventory
that AJ Signs has stocked as part of this package. The responsibility would
be for the retail prices established as of this date.
(Thomsen Dep. Ex. 9.)
2 Anderson hired Thomsen to paint signs for the Linden Hills restaurant without a
written contract.
4
In 2001, Thomsen was working on a restaurant in the Wisconsin Dells. At that
time, a Famous Daves employee who was designing a restaurant in Champaign, Illinois,
told Thomsen that he intended to incorporate dcor ideas from the Wisconsin Dells
restaurant into the design of the Champaign, Illinois restaurant. (Thomsen Dep. at 6-7.)
Soon thereafter, Thomsen claimed copyright ownership of signs he had painted for
Famous Daves, including all copyrights at issue in the present suit. Thomsen objected to
the replication of designs and signage that he worked on, registered copyrights for signs
he had painted for Famous Daves, and retained an attorney. Thomsens attorney then
sent Famous Daves a cease-and-desist letter.
Anderson and Thomsen eventually settled the 2001 dispute and entered into a
settlement agreement dated October 4, 2001 (the Settlement Agreement). The
Settlement Agreement was negotiated and entered into without the participation of
attorneys. The Settlement Agreement provides in significant part:3
[Paragraph 2]
[Famous Daves] will sit down with Ken Miller and other architectural
design firms and explain the nature of this agreement so there are no
misunderstanding [sic] going forward regarding the nature of [Thomsens]
concerns regarding the proprietary nature of his work when it comes to
original concept designs and that they are not to be copied or duplicated.
3 The paragraphs in the Settlement Agreement are unnumbered in the original. The
Court uses sequential numerical paragraph numbers 1 through 16 in brackets for ease of
reference.
5
[Paragraph 3]
[Famous Daves] will use best efforts to explain to all existing franchise
owners and future franchise owners the proprietary nature of [Thomsens]
design work and that they are not to be copied or duplicated.
[Paragraph 4]
[Famous Daves] will guarantee that there are no present attempts to
duplicate [Thomsens] designs and further agrees that they will use best
efforts to assess and make changes now if there are. ([Famous Daves]
feels this is not the case)
[Paragraph 5]
When [Famous Daves] uses pictures of [Thomsens] work in company
publications, [Famous Daves] will clearly mark them as [Thomsens] work
and understands that [Famous Daves] has [Thomsens] permission to do
so.
[Paragraph 6]
[Famous Daves] agrees to respect [Thomsens] creative architectural/dcor
designs for Sioux Falls, Burnsville, Crosslake, and Wisconsin Dells. The
company further agrees to identify these particular restaurants as signature
restaurant designs created by [Thomsens] company and will use best
efforts to advise all future franchise operators and their architects of the
proprietary and copyright nature of these architectural/dcor concepts as
solely provided by [Thomsen].
This includes all future stores that [Thomsen] designs, develops, or decors.
[Paragraph 7]
As long as [Famous Daves] and [Thomsen] are in good standing, [Famous
Daves] will provide good recommendation to all future franchise operators
. . . .
[Paragraph 8]
6
[Famous Daves] will explain that [Thomsen] does more then [sic] just
paint signs. [Famous Daves] will explain to all future operators the nature
of [Thomsens] design/dcor services that he provides a turn-key
service . . . .
[Paragraph 9]
In return, [Thomsen] is releasing all copyright, proprietary design and sign
work to [Famous Daves] in all other restaurants that he has worked on with
the exception of Sioux Falls, Burnsville, Crosslake, and Wisconsin Dells.
This does not preclude [Thomsen] from producing or manufacturing these
signs for Famous Daves.
. . . .
[Paragraph 11]
[Famous Daves] understands that [Thomsen] was squeezed out of design
fees of two recently completed restaurants. Both parties recognize that
Famous Daves cannot be held liable for 3rd party transactions between Ken
Miller or other 3rd party architects and [Thomsen]; but in the spirit of
getting this settled, [Famous Daves] will make a one-time payment of
,000 to cover [Thomsens] fees.
. . .
[Paragraph 14]
In the spirit of settlement [Famous Daves] also agrees to reimburse
[Thomsen] for his attorneys fees regarding this matter estimated between
,000 and ,000.
. . .
[Paragraph 16]
In return . . . [Thomsen] agrees that the company will be forgiven and that
we are starting over with a clean slate and that [Thomsen] will not sue the
company for any past infringements or disagreements. . . .
7
(Davis Decl. 24, Ex. W at 6-9, 11, 14, 16.) After entering into the Settlement
Agreement, Thomsen participated in the design of several new restaurants, some of which
Thomsen designated as signature stores under the Settlement Agreement.
Thomsen brought the current action on April 20, 2007, alleging copyright
infringement, inducement to infringe, vicarious infringement, and conspiracy to infringe
with respect to works that Thomsen created between 1995 and 2000. Thomsen also
alleges that Famous Daves breached the terms of the Settlement Agreement and seeks a
declaration that the Settlement Agreement is ineffective.
DISCUSSION
I. Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The Court
must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed to secure the just, speedy and inexpensive determination of every action.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at
8
747. The nonmoving party must demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th
Cir. 1995). A party opposing a properly supported motion for summary judgment may
not rest upon mere allegations or denials but must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986).
A. Copyright Infringement
Thomsen asserts numerous copyright infringement claims involving twenty
separate copyrights. Defendants move for summary judgment on Thomsens copyright
infringement claims, asserting that they are barred by the terms of the Settlement
Agreement. Defendants assert that the Settlement Agreement unambiguously transferred
ownership of each of the copyrights at issue in this action to Famous Daves and that
Thomsen therefore cannot sue for infringement. In particular, Defendants assert that
Thomsen assigned all copyrights for works that were created as of October 4, 2001, for
Famous Daves restaurants in locations other than Sioux Falls, Burnsville, Crosslake, and
Wisconsin Dells. Defendants further assert that all of the copyrights at issue in this action
are for works created prior to October 4, 2001, and for restaurants in locations other than
Sioux Falls, Burnsville, Crosslake, and Wisconsin Dells. Defendants claim that by
releasing all copyright, proprietary design and sign work in the disputed copyrights to
Famous Daves, Thomsen transferred any purported ownership in those copyrights to
9
Famous Daves.4
Thomsen asserts that the Settlement Agreement did not unambiguously assign
Thomsens copyrights to Famous Daves, that Thomsen is the sole author of the
copyrighted works, and that Famous Daves does not have an implied license to use
Thomsens copyrights. In particular, Thomsen asserts that the Settlement Agreement
does not transfer ownership of any copyrights to Famous Daves. Instead, Thomsen
maintains that the Settlement Agreement only released Famous Daves from infringement
claims that could have been asserted in 2001 or before. Thomsen points out that the terms
assignment or transfer are not used in the Settlement Agreement. Thomsen also
claims that there was no payment for the alleged transfer of copyrights and that
Defendants proposed interpretation of the Settlement Agreement would not make
economic sense and should be rejected. In addition, Thomsen asserts that the Settlement
Agreement is ineffective because Famous Daves failed to meet conditions precedent or
because Famous Daves breached the agreement.
The parties agree that Minnesota law governs the interpretation and enforcement
of the Settlement Agreement. Under Minnesota law, the construction and effect to be
4 In the alternative, Defendants assert that Thomsens copyright infringement claims
are barred by the doctrine of implied nonexclusive license, waiver, and abandonment; and
that Defendants are entitled to summary judgment on all claims of infringement for signs
containing Wilbur the Pig because it is a derivative work or jointly authored. Because the
Court concludes that the copyrights at issue in this action were transferred to Famous
Daves via the Settlement Agreement, the Court does not reach Famous Daves
alternative arguments.
10
given language in a contract are questions of law for the Court unless the contract is
ambiguous. Brookfield Trade Center, Inc. v. County of Ramsey, 584 N.W.2d 390, 394
(Minn. 1998); Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 916-17 (Minn. 1990).
Absent ambiguity, contract terms are to be given their plain and ordinary meaning.
Brookfield, 584 N.W.2d at 394; Knudsen v. Transp. Leasing/Contract, Inc., 672 N.W.2d
221, 223 (Minn. Ct. App. 2003). Contract provisions must be interpreted in the context of
the entire contract. Brookfield, 584 N.W.2d at 394. Further, to transfer ownership of a
copyright, there must be a writing signed by the owner. 17 U.S.C. 204(a). The writing
need not contain any particular words or phrases; rather the inquiry is to give effect to the
intent of the parties, which must demonstrate a transfer of the copyright. See Radio
Television Espanola S.A. v. New World Entmt, Ltd., 183 F.3d 922, 926 (9th Cir. 1999);
see also Melville B. Nimmer & David Nimmer, NIMMER ON COPYRIGHT, 10.03[A][2]
at 10-43.5
The Settlement Agreement sets out certain promises made by both Famous Daves
and Thomsen. In particular, in Paragraph 6 of the Settlement Agreement, Famous Daves
agreed to the following:
[Famous Daves] agrees to respect [Thomsens] creative architectural/dcor
designs for Sioux Falls, Burnsville, Crosslake, and Wisconsin Dells. The
company further agrees to identify these particular restaurants as signature
restaurant designs created by [Thomsens] company and will use best
5 The writing doesnt have to be the Magna Charta; a one-line pro forma statement
will do. Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990).
11
efforts to advise all future franchise operators and their architects of the
proprietary and copyright nature of these architectural/dcor concepts as
solely provided by [Thomsen].
This includes all future stores that [Thomsen] designs, develops, or decors.
(Davis Decl. 24, Ex. W at 6.) The language of Paragraph 6 indicates that Famous
Daves agreed to recognize that Thomsen held rights in two categories of designsthose
that were created for four signature restaurants6 and those arising from future design
work (design work occurring after the date of the Settlement Agreement). The language
of Paragraph 6 also plainly demonstrates that these two categories of designs constituted
Thomsens proprietary work.
Famous Daves made additional promises that relate to the recognition of
Thomsens work.7 For example, Famous Daves promised to explain the proprietary
nature of Thomsens work to architectural design firms and existing and future franchise
workers and to clearly mark pictures of Thomsens works when used in company
publications. (Davis Decl. 24, Ex. W at 2, 3, 5.) In addition, Famous Daves
guaranteed that there were no present attempts to duplicate Thomsens designs. (Id. 4.)
Reading the Settlement Agreement as a whole, these promises necessarily relate to the
designs and works that Famous Daves agreed to respect in Paragraph 6, namely
6 The signature restaurants are those located in Sioux Falls, Burnsville, Crosslake,
and Wisconsin Dells. (Davis Decl. 24, Ex. W at 6.)
7 Thomsen asserts that the promises made by Famous Daves in the Settlement
Agreement are conditions precedent. (Third Am. Compl. 802). The Court finds no
merit in this assertion.
12
signature restaurant designs and future designs, and not to Thomsens work generally.8
In addition, based on the language of the Settlement Agreement, which provides that
Famous Daves will respect Thomsens architectural/dcor designs for the signature
restaurants, the Court concludes that signature restaurant designs constitute designs
that were newly created for one of the four signature restaurants and does not include
existing designs that were originally created for a non-signature restaurant and later used
in a signature restaurant.
In return for the promises made by Famous Daves, Thomsen agreed to release
all copyright, proprietary design and sign work to [Famous Daves] in all other
restaurants that he has worked on with the exception of Sioux Falls, Burnsville,
Crosslake, and Wisconsin Dells. (Davis Decl. 24, Ex. W at 9.) The language of this
provision plainly provides that Thomsen transferred certain rights. The use of the word
release explicitly demonstrates that Thomsen gave up legal rights to certain works and
designs. The word release is defined as:
1. . . . the act of giving up a right or claim to the person against whom it
could have been enforced . . . 2. The relinquishment of concession of a
8 As explained below with respect to Paragraph 9 of the Settlement Agreement,
Thomsen transferred certain copyrights to Famous Daves. It would be nonsensical to
view Famous Daves obligations under Paragraphs 2, 3, 4, or 5 as applying to Thomsens
work generally because this would then include copyrights that Famous Daves owns.
Instead, the promises made in these paragraphs pertain to Thomsens proprietary work
and designs as recognized in Paragraph 6 of the Settlement Agreement.
13
right, title, or claim . . . 5. The act of conveying an estate or right to another,
or of legally disposing of it . . . 6. A deed or document effecting a
conveyance.
BLACKS LAW DICTIONARY 1292 (7th ed. 2004). In addition, that Thomsen gave up
rights to certain copyrighted works is further evidenced by the final sentence of Paragraph
9, which states: This does not preclude [Thomsen] from producing or manufacturing
these signs for Famous Daves. This sentence demonstrates that Thomsen gave up his
rights to certain works because it implies that Thomsen would need Famous Daves
permission to produce these signs going forward. This sentence has meaning only if
Thomsen assigned his rights; if Thomsen had retained ownership, he would not need
Famous Daves permission to produce the signs and this clause would be meaningless.
In addition, the release provision in Paragraph 9 plainly applies to all copyrights
for design and sign work created by Thomsen prior to the date of the settlement for any
restaurant that is not a signature restaurant (hereinafter collectively referred to as
Existing, Non-Signature Works). In Paragraph 9, Thomsen explicitly released
copyrighted works created by Thomsen for all Famous Daves restaurants except the
signature restaurants.9
There is no dispute that all of the copyrights at issue in this action were created
prior to the date of the Settlement Agreement. In addition, Defendants submit that each
9 This release is in harmony with other provisions of the Settlement Agreement. For
example, Paragraph 6 provides that Thomsen will retain ownership of signature
restaurant designs, precisely the category of designs not included in the release.
14
of the disputed copyrights is a design or sign work that Thomsen created for restaurants
other than the signature restaurants. Thomsen has not asserted or put forth evidence
that any of the disputed copyrights were newly created for a signature restaurant.
Therefore, each of the copyrights at issue in this action constitutes an Existing,
Non-Signature Work. As such, ownership of all of the copyrights at issue here was
transferred to Famous Daves pursuant to Paragraph 9 of the Settlement Agreement.10
Thomsen asserts that the Settlement Agreement does not transfer ownership of
copyrights but instead speaks in terms of releasing past infringement claims and
specifically contemplates lawsuits for infringements that might take place after the
agreement was signed.11 (Pl.s Mem. of Law in Oppn to Defs. Mot. for Summ. J. at
20.) Thomsen claims that Paragraphs 3, 4, 5, and 16 of the Settlement Agreement show
10 Defendants assert that all of the copyrights at issue were used prior to the creation
of the signature restaurants, and therefore that they could not be signature restaurant
designs. Defendants, however, have not pointed the Court to record evidence to fully
support this assertion. Even so, the lack of record evidence on this point is not material
because Thomsen has failed to put forth evidence that the disputed copyrights were newly
created for signature restaurants.
11 Thomsen relies on several categories of extrinsic evidence, such as prior drafts of
the Settlement Agreement and Thomsens deposition testimony as to the meaning of the
Settlement Agreement. Because the Court concludes that the Settlement Agreement is
unambiguous on its face, the Court does not consider this evidence. See Knudsen, 672
N.W.2d at 223. In addition, Thomsen suggests that the Settlement Agreement is
ambiguous because it was not drafted by attorneys and is very informal. The Court
rejects this suggestion.
15
that he retained ownership over the disputed copyrights. The Court disagrees. First,
Paragraph 16 constitutes a release of past infringement claims. Thomsens proposed
construction of Paragraph 9 (as a release of past infringement claims) would render
Paragraph 16 superfluous. Second, on its face, Paragraph 9 is not limited to the release of
past infringement claims. The clause does not mention lawsuits or infringement
claims but instead explicitly releases all copyright, proprietary design and sign work.
For the reasons discussed above, it is apparent that Paragraph 9 applies to all Existing,
Non-Signature Works. Finally, the remaining provisions cited by Thomsen do not
contradict the Courts interpretation of Paragraph 9 because they pertain to Thomsens
signature restaurant designs and any future copyrightable works by Thomsen.12
Thomsen also asserts that he was not paid specifically for the transfer of the
disputed copyrights and therefore it is impossible to conclude that an assignment was
intended as a matter or law. Thomsen maintains that if an assignment had been intended,
there would have been some payment. The Settlement Agreement provided that Thomsen
would receive ,000 for being squeezed out of design fees for two restaurants and
,000 to ,000 for attorney fees. The fact that the Settlement Agreement did not
expressly allocate an amount of money for the transfer of copyrights does not negate the
fact that Thomsen received valuable consideration. First, the record demonstrates that the
12 For example, because Thomsen did not assign his rights to the signature
restaurant designs or future copyrights, Paragraphs 3 provides that Famous Daves will
(Footnote Continued On Next Page)
16
attorney fees payment included costs associated with filing the copyright registrations.
Second, there is additional consideration in the Settlement Agreement; for example, that
Thomsen would own copyrights in signature restaurant designs.
For the reasons stated above, the Court concludes that Thomsens copyright
infringement claims fail as a matter of law. Accordingly, the Court grants Defendants
motion as to these claims.
B. Breach of Contract
Thomsen asserts a claim for declaratory judgment alleging that the Settlement
Agreement is ineffective and a claim for breach of contract alleging that Famous Daves
breached several provisions of the Settlement Agreement. Specifically, Thomsen alleges
that Famous Daves has not explained to all existing franchise-operated restaurants and
future franchise owners the proprietary nature of [Thomsens] design work; has used
pictures of [Thomsens] work in company publications and not market them as
[Thomsens] work; has not advised franchise-operated restaurants or their architects of
the proprietary and copyright nature of [Thomsens] architectural/dcor concepts; did
not provide a good recommendation of [Thomsen] to any future franchise operators;
has not provided [Thomsen] the opportunity for additional sign work; has not kept
[Thomsen] informed on a timely basis of the companys development process; and has
(Footnote Continued From Previous Page)
explain to franchise owners that signature restaurant designs and any future copyrights
are not to be duplicated.
17
continued to use proprietary design and sign work of [Thomsen] . . . without
authorization, permission, or license of [Thomsen]. (Third Am. Compl. 795-801.)
Thomsen seeks damages, injunctive relief prohibiting enforcement of the Settlement
Agreement, rescission of the Agreement,13 and/or termination of the Agreement.
Defendants have moved for summary judgment on all of Thomsens breach of contract
claims. In his opposition, Thomsen only addresses the alleged violations of Paragraphs 3
and 5. The Court therefore discusses only those Paragraphs.
Paragraph 3 of the Settlement Agreement requires Famous Daves to use its best
efforts to explain to all existing . . . and future franchise owners the proprietary nature of
[Thomsens] design work and that they are not to be copied or duplicated. (Davis Decl.
24, Ex. W. at 3.) Thomsen asserts that there is no evidence that any existing and
future franchises were instructed in accordance with Paragraph 3, that Famous Daves
design manual and other documents contain Thomsens works without an instruction that
the works are not to be copied, and that Famous Daves requires that signage be
duplicated in franchise stores. (Pl.s Mem. of Law in Oppn to Defs. Mot. for Summ. J.
at 12.) In support, Thomsen relies primarily on the statements of Mark Bartholomay, a
Famous Daves representative, made during a Rule 30(b)(6) deposition:
Q: What did you do to explain to all existing franchise owners and
13 Famous Daves moved for summary judgment, in part, on the grounds that
rescission is not an available remedy in this case. Thomsen did not respond to this
argument. The Court therefore concludes that Thomsen has conceded that rescission is
not available.
18
future franchise owners the proprietary nature of Als design work?
A. I can honestly answer that nothing. It wasnt required. They
couldnt design their own restaurants. We designed them for them, so there
was -- I couldnt figure out why that paragraph was there, because it was
totally irrelevant. They designed their own restaurant, we would have
thrown them out of the system.
(Davis Decl. 25, Ex. X (Dep. of Mark Bartholomay) at 33.) This evidence, however, is
insufficient to avoid summary judgment. Bartholomays deposition testimony makes
clear that Famous Daves franchise owners did not have the authority to design their own
restaurants and that such design decisions were controlled by Famous Daves corporate
division. (Id. at 35-36.) In addition, there is no evidence that Famous Daves ever
allowed its franchisees or any architectural firms to copy any signature restaurant
designs. Thus, Thomsen has failed to submit evidence that would establish the existence
of a material breach of Paragraph 3 or damages for the alleged breach.
Paragraph 5 of the Settlement Agreement requires Famous Daves to clearly mark
pictures of Thomsens work when those pictures are used in company publications.
Thomsen asserts that pictures of Thomsens copyrighted works have appeared in Famous
Daves publications without being clearly marked as Thomsens. In light of the Courts
conclusions with respect to Thomsens copyright claims, the Court notes that Thomsen
has not pointed to record evidence that any of the pictures that appeared in company
publications are of signature restaurant designs or designs created after the date of the
Settlement Agreement. Therefore, there is no evidence that Famous Daves breached
Paragraph 5. In addition, Thomsen has not submitted any evidence of damages with
19
respect to any alleged breach of Paragraph 5.
For the reasons stated above, the Court concludes that Thomsens breach of
contract and declaratory judgment claims fail as a matter of law. Accordingly, the Court
grants Defendants motion as to these claims.
Based on the files, records, and proceedings herein, and for the reasons set forth
above, IT IS HEREBY ORDERED that:
1. Defendants Motion for Summary Judgment (Doc. No. 70) is GRANTED.
2. Thomsens Third Amended Complaint (Doc. No. 44) is DISMISSED
WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 17, 2009 s/Donovan W. Frank
DONOVAN W. FRANK
Judge of United States District Court
 

 
 
 

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Police Responded but Did
        Not File a Police Report


 

 

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Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.