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SOUTH BEND, Ind. – The St. Joseph County Airport Authority is asking a court to throw out South Bend Chocolate Co.’s lawsuit with prejudice and hold a hearing on attorney fees, arguing the chocolatier has ignored a pending dispositive motion while continuing to air its grievances publicly.
The motion, filed Friday morning in St. Joseph Superior Court, asks Judge Jenny Pitts Manier to rule on the airport authority’s Motion for Judgment on the Pleadings, which has been pending since May 5. Per Indiana Trial Rule, South Bend Chocolate Co. and founder Mark Tarner had 20 days to respond. The airport’s attorneys argue that silence constitutes a waiver of opposition.
The filing comes about a week after Judge Manier denied South Bend Chocolate Co.’s request for a preliminary injunction, finding the company’s legal arguments lacked merit and that its lease termination on May 31 was lawful and foreseeable.
“Success on the merits of Plaintiffs Amended Complaint is not reasonably likely,” Judge Manier opined. “Remedies at law being adequate, Plaintiffs will suffer no irreparable harm if injunctive relief is not granted. The monetary consequences to the Airport if injunctive relief is granted outweigh the harms to Plaintiffs if it is not.”
According to the motion, the airport authority twice contacted South Bend Chocolate Co.’s attorney after the injunction ruling and offered to forgo attorney fees if the plaintiffs would voluntarily dismiss the case. The company declined both times as shown in email exchanges submitted as evidence.
Copies of recent local news articles were also included as exhibits to prove allegations that the company and Tarner made inaccurate and misleading public statements about the litigation, the airport authority, and the concession transition process.
“Rather than responding to the pending Motion for Judgment on the Pleadings in the proper judicial forum, Plaintiff, SBCC, and its representatives, including Tarner, elected to continue publicly litigating the matter through the media,” the filing states.
Inside INdiana Business reached out to Tarner for his reaction to the airport authority’s motion Friday but has not yet received a response.
The airport is now asking the court to dismiss all of South Bend Chocolate Co.’s claims with prejudice, enter judgment in the airport’s favor, and schedule a hearing on attorney fees and damages under Indiana Code § 34-52-1-1, which allows fee awards when claims are found to be frivolous, unreasonable, or groundless.
Attorney Michael Misch of Anderson, Agostino & Keller filed the motion on the airport’s behalf.
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