Case Information

*1 Before B AUER K ANNE Circuit Judges F EINERMAN , District Judge ^[*]

F EINERMAN District Judge

Wine and Canvas Develop ‐ ment, LLC, Anthony Scott, Tamara McCracken, and Donald McCracken sued Christopher Muylle, Theodore Weisser, YN Canvas CA, LLC, Art Uncorked LLC, and Weisser Manage ‐ ment Group LLC, bringing federal trademark and state law claims. Muylle brought several counterclaims, including one abuse process under Indiana law. Weisser defaulted, and appears Weisser and Muylle were only mem ‐ bers defendant LLCs, so practically speaking case ultimately amounted against Muylle. Pretrial motions disposed much case, and jury found Muylle and false des ignation origin and counterclaim. appeal, and we affirm.

I. Background

Wine & Canvas a business specializes hosting events colloquially known “painting nights.” These social evenings where patrons, following a teacher’s instruc tions, create a painting while enjoying wine and other adult beverages. Wine & Canvas operated locations Indianapo lis, Bloomington, and Oklahoma City.

In Muylle befriended Scott, who already ac quainted Weisser. They discussed franchise arrange ment and Weisser move Indiana San Francisco open Wine & Canvas operation there. Weisser signed license agreement half entity, YN Canvas CA, LLC.

On August Weisser launched Wine Canvas location San Francisco. Tamara McCrack en Scott present launch, McCracken taught first class day. McCracken also worked Muylle and Weisser to approve paintings they would use their events. Plaintiffs lent additional support by giving company email addresses to Muylle and Weisser and by ad ‐ vertising San Francisco operation Wine & Canvas website.

Disagreements soon arose over how San Francisco operation would structured and what degree owner ship Plaintiffs hold. These disagreements continued without resolution. Finally, November 18, 2011, and Weisser gave notice they were terminating li cense agreement. At point, changed name business to “Art Uncorked” and ceased using Wine Canvas name other marks.

On November 28, 2011, filed complaint In diana state alleging trademark Lanham Act, U.S.C. § et seq ., and other claims. De fendants timely removed suit to federal court, and answered filed several counterclaims. His initial counterclaims invoked California franchise law, he later added federal cancellation Indiana law counterclaims.

From beginning, proceedings slow moving, principally due to conduct their attor neys. failed serve written discovery responses initial due date, March 20, They then failed meet extended deadline May leading file motion compel, was granted. After Plain tiffs failed respond by early June, im posed sanctions ordered them serve responses June deadline later extended June Plaintiffs served woefully incomplete responses on June at 11:55 p.m., and “final” responses at 4:10 a.m. the next day. Muylle asserted the “final” responses only late, but also incomplete because they did itemize Plain tiffs’ damages, and he moved for further sanctions. Citing the responses’ tardiness and also incompleteness, the magistrate judge recommended sanctions amount of $2,156, costs of filing sanctions motion, and court adopted recommendation. By end of case, had been sanctioned three times. Sum marizing conduct, court observed had “flooded Court filings … and … filed numer ous claims court has found without merit.” WL *15 (S.D. Ind. Aug. 15,

Meanwhile, court dismissed California franchise law counterclaims, both sides then moved summary judgment. The granted summary judgment Muylle’s trademark cancellation counterclaim, his abuse of counterclaim survived. The granted summary judgment most Plaintiffs’ claims, including trademark dilution, sale counterfeit items, unfair competition, bad faith, tortious conduct, process, breach contract, fraud, com pensation Indiana Crime Victims Act. also granted partial summary Plain tiffs’ trademark infringement claim, finding any use through November impliedly con sented Muylle’s using marks.

Only three proceeded trial: claims false designation origin (for any use after November 2011), *5 5 counterclaim. jury returned verdict for all counts, rejecting Plaintiffs’ and awarding $ 270,000 his counterclaim. After Plain ‐ tiffs filed their appeal, district court granted Muylle’s motion for fees Lanham Act, awarding $ 175,882.68.

II. Discussion challenge fourteen rulings by court.

Many those challenges are wholly unsupported devel ‐ oped argument citing record and supporting authority, are thus forfeited. See Long Gang Lin v. Holder F.3d (7th Cir. 2010); Ajayi Aramark Business Serv’s, (noting that an appellant must “identify legal issue, raise argument sec tion her brief, support her argument with pertinent authority”). Other issues, though properly presented, plainly meritless need addressed. Only fol lowing issues warrant discussion.

A. Sanctions Order Tardy Discovery Responses contend court erred sanction ing them $ 2,156 connection with June discov ery responses, which tardy failed provide damages itemization. They argue sanctions award fatally inconsistent later ruling de nied additional sanctions failing provide same itemization; denied those sanctions ground produced financial records necessary itemize damages. In Plain tiffs’ view, when agreed fail ure produce records prevented them preparing an *6 6 15 2088 itemization, it undermined basis earlier sanctions award.

We review trial court’s imposition discovery sanc tions abuse discretion. See Scott v. Chuhak Tecson, P.C. , 725 F.3d 772, 778 (7th Cir. 2013); Maynard v. Nygren , 332 F.3d 467 (7th Cir. “Under this standard, we up hold any exercise district court’s discretion could be considered reasonable, even if we might have resolved question differently.” Maynard , 332 F.3d at “A party meets its burden this standard only when clear no reasonable person agree trial court’s assessment what sanctions are appropriate.” Scott , 725 F.3d (internal quotation marks alteration omitted). did its discretion. As magistrate judge explained, sanctions were warranted be cause discovery responses late, albeit by one day. Sanctions missing deadline one day certainly are mandatory, neither are they prohibited given wide latitude courts have such matters. See Flint v. City Belvidere , F.3d (7th Cir. 2015) (“[C]ase management depends enforceable deadlines … In man aging caseloads, courts entitled to—indeed must—enforce deadlines.”) (internal quotation marks omitted); Raymond v. Ameritech Corp. F.3d (7th Cir. 2006) (“Rule 6(b) … clearly gives courts both authori ty establish deadlines discretion enforce them.”); Shine Owens Ill., (“[J]udges must be able enforce deadlines.”) (internal quo tation omitted). Of course, sanctions must be reasona ble, heavy sanction such dismissal an outsized monetary award might unwarranted response minor *7 7 15 2088 tardiness. See FM Indus. v. Citicorp Credit Servs., Inc. (holding unreasonable an $815 mil ‐ lion sanctions request for missing a discovery deadline one day). But the sanctions here reasonable, consisting solely the costs Muylle incurred related to the sanctions motion. Thus, even though later held Plain tiffs’ failure to itemize damages to reasonable, untimeliness June discovery responses provided a legitimate, independent ground sanctions. This par ticularly so given Plaintiffs’ dilatory conduct prior to sanctions order; they had already missed multiple discovery deadlines, causing file motion to compel, had been sanctioned once before. Against this back drop, it was not unreasonable con clude that even single day’s tardiness required some sanc tion deter future misbehavior.

B. Implied Consent Use Wine & Canvas Marks In moving summary Plaintiffs’ trade mark claim, contended Au gust through November had granted him implied consent use marks. Citing Bobak Sausage Co. A J Seven Bridges, F. Supp. 2d (N.D. Ill. 2011), responded show implied consent, had demonstrate that: “(1) senior user actively represented not assert right or claim; (2) delay between active representation assertion right excusable; (3) delay caused defendant undue prejudice.” Id at 512–13. disagreed, reasoning Seventh Circuit adopted second third requirements. WL *8. And finding conduct—such ‐ aiding Muylle in establishing operating the Wine & Canvas location in San Francisco—constituted an active rep resentation that would assert claim, the district court held that Muylle had established implied consent thus granted summary judgment all fringement based his use the marks Au gust to November Ibid

Two years after the district ruled, Hyson USA, Hyson 2U, Ltd. 2016), we adopted the three part test had proposed to the this case. court’s understand able failure to anticipate Hyson is no moment, however, Muylle was entitled to summary judgment implied con sent even correct standard.

As noted, it clear around time August launch San Francisco parties disagreed over new location’s ownership structure. At point, would have been perfectly reasonable re quire cease using Wine Canvas marks until disputes resolved. Instead, allowed continue using months. That delay inexcusable, satisfying second part three part test. As third, undue prejudice, given moved across country start San Francisco opera tion stayed there operate it, failure promptly assert rights prejudiced him. Accordingly, summary have been appropriate implied consent issue even applied Hyson framework.

C. Testimony Regarding Settlement Negotiations challenge court’s admission of testi ‐ mony concerning a statement Scott made to dur ‐ ing parties’ September settlement discussions re ‐ garding claims. Specifically, Scott said his goal was to “close [Muylle’s] door[] or [Scott’s] ass ‐ hole attorney close [it] [him].” argue testimony regarding statement inadmissible Federal Rule of Evidence

“This reviews a court’s interpretation Federal Rules Evidence de novo court’s de cision admit evidence discretion.” United States Turner Rule provides pertinent part:

(a) Prohibited Uses. Evidence following admissible—on behalf any party—either prove or disprove validity or amount a disputed claim or impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering—or accept ing, promising accept, or offering accept—a valuable consideration compromising or tempting compromise claim; (2) conduct or a statement made during compro mise negotiations about claim—except when offered criminal case when negotia tions related public office ex ercise its regulatory, investigative, enforce ment authority.

Although statements made in settlement negotiations are inadmissible prove liability on underlying claim, may admissible other purposes, including “to show defendant’s … intent.” Bankcard Am., Inc. v. Universal Bancard Sys. ,

That is precisely what did here. Scott’s statement, made in context of settlement negotiations concerning Plaintiff’s claims against , not offered disprove liability on those claims rather show improp er intent ulterior motive filing lawsuit purpose of proving of process counterclaim. See Watson Auto Advisors, N.E.2d (Ind. App. (“Abuse process has two elements: (1) ulterior purpose or motives; (2) willful act use not proper regular conduct proceeding.”) (in ternal quotation omitted). Under these circumstances, testimony not inadmissible.

This conclusion follows from text Rule Para graph (a) uses term “a disputed claim,” not “disputed claims” or “any claims.” Subparagraphs (1) (2) para graph (a) likewise speak “the” claim. Rule’s use singular term “claim” suggests settlement discussions concerning specific are excluded from evidence prove liability claim, not others. That is, when settlement discussion concerns Claim A, statements discussion later offered prove disprove liability Claim B, Rule 408(a) does make those state ments inadmissible. We do expect such circumstances arise very often, settlement discussions usually encom pass multiple all once. Here, however, there no possibility settlement discussion, occurred September 2012, addressed Muylle’s of claim, was not filed until months later.

D. Summary Judgment on Unfair Competition Claim

Plaintiffs challenge district court’s grant of summary judgment on their state law unfair competition claim. Muylle’s summary judgment motion argued Plaintiffs had presented no evidence showing likelihood of confusion between those belonging Plaintiffs. The held failed ad dress argument section of their opposition brief addressing state law unfair competition claim and, citing Palmer Marion County 2003), considered claim abandoned. WL at *13.

That holding error, as Plaintiffs’ argument their state law unfair competition claim incorporated ref erence their discussion likelihood confusion section brief addressing Lanham Act trademark infringement claim. Indeed, analyzed whether adduced sufficient evidence likeli hood confusion denying summary judgment trademark infringement claim period follow ing November Id *9–11. Thus, should have granted summary unfair competition claim.

Still, entitled reversal. Lanham Act trademark period following November went jury jury found Muylle. This matters because analysis fringement essentially same analysis Indiana un *12 12 15 2088 fair competition claims where, as here, the state law claim rests on trademark infringement. See Fortres Grand Corp. v. Warner Bros. Entm’t, Inc. , 763 F.3d 696, 700 n.4 (7th Cir. 2014) (“[A]ll relevant authority we have found analyzes Indiana unfair competition claims based on trademarks same Lanham Act trademark claims, so we analyze all together.”). Thus, if unfair competition claim had been tried, jury would have rejected along federal claim. See Am. Cas. Co. of Reading, Pa. v. B. Cianciolo, , 987 F.2d 1302, 1306 (7th Cir. 1993) (“Appellate courts should be slow impute juries a dis regard duties, implies that we should do what we can save verdict against specter inconsisten cy.”) (internal quotation citation omitted). It fol lows that there no point reversing grant summary unfair competition re manding trial.

E. Lanham Act Attorney Fee Award awarded attorney fees Lanham Act. WL 5513461 (S.D. Ind. Sept. 2015). seek reversal award ground award entered after filed notice appeal. As general rule, once a notice appeal filed, jurisdiction lies appeals court. See Griggs v. Provident Consumer Discount Co. , U.S. (1982); United States v. Ali F.3d (7th Cir. There are several exceptions this rule, however, we have unequivocally held those exceptions include mo tions attorney fees. See Terket v. Lund (holding may award fees while merits case appeal); see also Kusay United States (applying Terket to a non fee issue that an “aspect[] case involved appeal”). district court’s order denying motion to re consider attorney fee order cited Terket Kusay support its exercise jurisdiction over motion. WL at *3 (S.D. Ind. Oct. On appeal, cite Kusay proposition filing notice appeal divests trial court jurisdiction, they inexpli cably fail acknowledge Kusay describes exception rule invoked court. Nor do at tempt distinguish Kusay Terket or argue wrongly decided. This follows an unfortunate pattern this litigation; noted, “filed many motions reconsider numerous orders simply reargue unaccepted arguments.” WL *2. While party may argue good faith inapplicability, modification, reversal existing authority, it nonetheless has duty acknowledge grapple such authority. Pretending authority does exist hopes will overlook is never appropriate course.

III. Conclusion

For foregoing reasons, court’s AFFIRMED.

[*] Of Northern District Illinois, sitting designation.