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Yah Kai World Wide Enterprises, Inc. v. Napper

United States District Court, District of Columbia

February 21, 2018

YAH KAI WORLD WIDE ENTERPRISES, INC., et al., Plaintiffs,
v.
GEOFFREY NAPPER, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DAMAGES

          KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE.

         At the conclusion of a three-day bench trial held in July of 2015, this Court determined that Defendant Geoffrey Napper is liable for trademark infringement, unfair competition, and conversion in connection with Napper's appropriation and control of the food-service business in Capitol Heights, Maryland that is presently named “Everlasting Life Restaurant & Lounge.” See Yah Kai World Wide Enters., Inc. v. Napper, 195 F.Supp.3d 287, 326-27 (D.D.C. 2016) [hereinafter Yah Kai I]. Because the liability and damages questions in this case were bifurcated for trial, the Court then proceeded to hold an additional one-day bench trial to evaluate the monetary damages and other remedies available to Plaintiffs Prince Immanuel Ben Yehuda and Yah Kai World Wide Enterprises, Inc. Following the damages trial, the parties submitted proposed findings of fact and conclusions of law that addressed the facts that had been established relating to damages and the remedies to which Plaintiffs were entitled as a result of Napper's violations. (See Pls.' Proposed Conclusions of Law on Damages (“Pls.' Dam. COL”), ECF No. 111; Def.'s Proposed Conclusions of Law on Damages (“Def.'s Dam. COL”), ECF No. 112; Pls.' Corrected Proposed Findings of Fact on Damages, ECF No. 113-1 (“3d Dam. FOF Tbl.”).) This Court's own findings of fact and conclusions of law appear below.

         In short, after reviewing the evidence presented at both trials, the parties' submissions, and the legal theories that the parties contend apply to the established facts of this case, this Court finds that Plaintiffs have demonstrated that they are entitled to monetary damages for Napper's violation of the Lanham Act, 15 U.S.C. §§ 1051-1129, in the form of (1) the profits that Napper's infringing conduct generated, (2) actual damages, and (3) attorney fees and costs-all of which overlap with the damages Napper owes for unfair competition under Maryland common law. Plaintiffs are also entitled to compensatory damages related to Napper's tortious conversion of both their tangible assets and certain intangible rights, along with prejudgment interest related to the conversion damages, but Plaintiffs have not sustained their burden with respect to any claims for injunctive relief, nor have they shown that an award of punitive damages under Maryland common law is appropriate here.

         Accordingly, JUDGMENT WILL BE ENTERED IN PLAINTIFFS' FAVOR against Napper for monetary damages in the amount of $2, 598, 849 (consisting of: $1, 856, 144 for Napper's profits and $545, 407 for Plaintiffs' actual damages for trademark infringement/unfair competition, plus $142, 864 in compensatory damages for conversion and $54, 434 in prejudgment interest on those conversion damages). In addition, Plaintiffs will recover a yet-to-be determined amount of attorney fees and costs arising from the litigation of Plaintiffs' trademark infringement claims. A separate order consistent with the Court's findings and conclusions will follow.

         I. BACKGROUND

         A. The Court's Liability Findings

         This Court's Findings of Fact and Conclusions of Law regarding Napper's liability for certain breaches of the Lanham Act and Maryland common law are laid out in a lengthy Memorandum Opinion that the Court issued on July 3, 2016. (See Findings of Fact & Conclusions of Law, ECF No. 69.) The background facts are recited at length in that opinion, and need not be reproduced here.

         It suffices to recall now that Plaintiffs are members of the African Hebrew Israelite Community (“the Community”), which follows a strict vegan diet, see Yah Kai I, 195 F.Supp.3d at 292, and that the Community founded and maintained a foodservice business called the “Everlasting Life Health Complex” (“the Complex”) through the service and monetary contributions of its members, including Plaintiffs, see Id. at 298-99. Napper-a former member of the Community-played a key role in starting the Complex and served as its first manager, but Community leaders eventually replaced Napper with Yah Kai World Wide Enterprises, Inc., an incorporated entity that the Community created. See Id. at 301-03. In response to the Community's decision to remove him from the manager's post, Napper utilized his legal status as the Community's agent on the Complex's lease to evict members of the Community and Yah Kai and to assert total control over the business. See Id. at 303-05. Plaintiffs filed the instant legal action because Napper appropriated their business for himself, and has continued to operate essentially the same food-service establishment using the trademarked name “Everlasting Life” in the same location as that business operated prior to the takeover. See Id. at 305. Plaintiffs claimed that Napper's operation of what he now calls the “Everlasting Life Restaurant & Lounge” (“the Restaurant”) infringed upon Prince Immanuel and Yah Kai's trademark rights in violation of the Lanham Act, and constituted unfair competition under both the Lanham Act and Maryland's common law. See Id. at 293-94, 305. Plaintiffs also asserted that Napper's theft of the Complex, and the goods and records contained therein, constituted conversion of Yah Kai's tangible and intangible property in violation of Maryland's common law. See Id. at 293-94.

         After a bench trial regarding Napper's liability, this Court found that Napper was liable for his actions in forcibly evicting Plaintiffs from the premises, seizing their equipment and goods, and re-opening the business at the same location with the same moniker. See Id. at 305-07. To be specific, this Court held that Napper had committed trademark infringement under Section 32 of the Lanham Act and the tort of unfair competition under both Section 43(a) of the Lanham Act and Maryland common law, and the Court also found that Napper had converted tangible and intangible property owned by Yah Kai in violation of Maryland common law. See Id. at 308-26.[1]

         B. The Present Proceedings

         After this Court issued its liability findings, the parties proceeded to engage in additional discovery related to the question of damages, with the initial intention of presenting the damages issues to a jury. (See Scheduling Order, ECF No. 73.) However, Plaintiffs subsequently opted to litigate damages in the context of a second bench trial. (See Notice, ECF No. 85.) That trial began on February 13, 2017, and concluded later that same day. During the trial, Plaintiffs offered the testimony of three witnesses: Prince Immanuel, Napper, and Darrel Edwards (see Feb. 13, 2017 Trial Tr. (“Damages Trial Tr.”) at 23:20-155:22); Edwards had served as Yah Kai's accountant and is currently the accountant for Napper and Fair and Balanced, LLC, which is the umbrella corporation that Napper formed to manage his restaurant businesses, see Yah Kai I, 195 F.Supp.3d at 295-96. Napper elected not to call any witnesses or to provide any independent evidence regarding damages, and the parties proceeded immediately to closing arguments at the conclusion of Plaintiffs' case-in-chief. (See Id. at 159:1-169:6.) The parties also agreed to keep the record open after trial so that Edwards could supply documents that detailed the Restaurant's expenses and gross sales for the years 2011 through 2016. (See Id. at 147:2-149:16; 153:3-154:23.) For the most part, these documents were filed with the Court on February 22, 2017. (See Def.'s Doc. Produc. Reqs. Pursuant to Feb. 13, 2017 Ct. Order, ECF No. 105.)

         The parties then engaged in the detailed process that this Court requires for submitting proposed findings of fact in the wake of a bench trial. (See Order Regarding Proposed Findings of Fact and Conclusions of Law, ECF No. 103, at 1-2 (requiring the proposed findings to be offered in different iterations and in table format); see also Pls.' Proposed Findings of Fact Regarding Damages, ECF No. 107-1 (“1st Dam. FOF Tbl.”); Def.'s Proposed Findings of Fact on Damages, 109-1 (“2nd Dam. FOF Tbl.”); 3d Dam. FOF Tbl.)[2] After the proposed findings of fact table was compiled and submitted, the parties filed proposed conclusions of law. (See Pls.' Dam. COL; Def.'s Dam. COL.)

         II. LEGAL STANDARD

         “In an action tried on the facts without a jury . . . the court must find the facts specially and state its conclusions of law separately.” Fed.R.Civ.P. 52(a)(1). “In setting forth the findings of fact, the court need not address every factual contention and argumentative detail raised by the parties, [n]or discuss all evidence presented at trial.” Moore v. Hartman, 102 F.Supp.3d 35, 65 (D.D.C. 2015) (internal quotation marks and citations omitted). Instead, “‘the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters'” in a manner that is “sufficient to allow the appellate court to conduct a meaningful review.” Wise v. United States, 145 F.Supp.3d 53, 57 (D.D.C. 2015) (quoting Fed.R.Civ.P. 52(a) advisory committee's note to 1946 amendment); see also Lyles v. United States, 759 F.2d 941, 943 (D.C. Cir. 1985) (“One of [Rule 52(a)'s] chief purposes is to aid the appellate court by affording it a clear understanding of the ground or basis of the decision of the trial court.” (internal quotation marks and citation omitted)).

         III. FINDINGS OF FACT PERTAINING TO THE MONETARY DAMAGES OWED TO PLAINTIFFS AND OTHER REQUESTED REMEDIES

         This Court's findings of fact with respect to Plaintiffs' request for damages and injunctive relief are based on the testimony and exhibits that the parties submitted during the second bench trial, the Court's observation of the witnesses' demeanor, the Court's conclusions regarding the witnesses' credibility, the parties' stipulations, and the record as a whole, which includes the evidence offered in the liability bench trial.

         A. Overview Of The Evidence Presented During The Damages Trial

         As explained above, Plaintiffs called Prince Immanuel, Napper, and Edwards to the stand during the bench trial on damages, and Defendant Napper opted not to put on any case-in-chief. Prince Immanuel was the first to testify. (See Damages Trial Tr. at 24:1-34:6 (Prince Immanuel).) Among other things, his testimony addressed his ownership of the Everlasting Life trademark, the recent expiration of his trademark registration, and the agreements he had with other individuals regarding their use of that trademark. In addition, Prince Immanuel testified about Napper's use of the Everlasting Life trademark to promote the Restaurant after Napper evicted Yah Kai from the Complex, including Napper's use of the trademark with respect to internet advertising. For the most part, Prince Immanuel appeared to testify candidly, although he avoided providing direct answers to questions regarding the current registration status of the Everlasting Life trademark. (See, e.g., Id. at 30:5-11 (“Q. Have you been made aware [] by either your counsel or any other sources that you are no longer the holder of that trademark? A. That's rumored. Q. Rumored? A. We heard that, but again, as I've said, we're following up on that to clarify the situation.”).)

         Next, Plaintiffs called Napper as an adverse witness. (See Id. at 34:14-130:21 (Napper).) While testifying, Napper spoke extensively about his management of the Restaurant and its current parent corporation, Fair and Balanced LLC. Napper's testimony also touched upon the contents of Napper's personal tax returns; the contents of Fair and Balanced's tax returns; Napper's purported ownership of the equipment and inventory present within the Complex on November 15, 2011; the gross sales for the various restaurants Fair and Balanced LLC manages and the amount of those sales that are attributable to the Restaurant; Napper's accountant's handling of Fair and Balanced LLC's profit and loss statements; the number of Everlasting Life employees; Napper's and the Community's relationships to the Restaurant; Napper's use of the Everlasting Life moniker to promote the Restaurant; and Napper's eviction of Yah Kai on November 15, 2011. (See id.) Napper was frequently unable to respond to questions regarding the Restaurant's finances from 2011 to 2016 (see, e.g., id. at 63:4-7), and his testimony regarding the equipment and assets he converted on November 15, 2011 was imprecise and, at times, evasive (see, e.g., 113:25-114:4 (“Q. And within the next several days you then took that business and everything that was in it and you reopened it in your own name; right? By that I mean you opened it as your restaurant? A. As Everlasting Life.”)). Furthermore, throughout his testimony, Napper adamantly-and apparently sincerely-contended that he was the rightful owner of the Everlasting Life business. (See, e.g., id. at 99:9-17 (“Your honor, again with all due respect to you and the decision you made . . . Everlasting Life has been my business . . . and your decision didn't change my heart.”).)

         At the conclusion of Napper's testimony, Plaintiffs called Everlasting Life's perennial accountant, Darryl Edwards. (See Id. at 132:7-155:22 (Edwards).) Edwards testified about how he had prepared tax returns for Napper and for Fair and Balanced LLC, and also how the profit and loss statements for each of Napper's various restaurants are generated. (See id.) Throughout his testimony, Edwards appeared reluctant to answer questions regarding the Restaurant's profits and expenses, and he admitted that he had not yet complied with Plaintiffs' subpoena demanding individualized profit and loss statements for the Restaurant. (See Id. at 142:5-143:10.) Given Edwards's incomplete testimony, the parties and the Court agreed to leave the record open so that Edwards could provide these missing documents for the Court's review after trial. (See Id. at 148:23-149:13; 154:21-23.)

         In addition to the live testimony presented during the damages trial, the parties stipulated to the admission of several documents, including: (1) all exhibits admitted at the liability trial; (2) personal tax returns for Napper, from 2012-2015 (see Pls.' Damages Trial Ex. 1, ECF No. 114); (3) tax returns for Fair and Balanced LLC, from 2011-15 (see Pls.' Damages Trial Ex. 2, ECF No. 114-1); (4) a 2015 notice regarding Prince Immanuel's Trademark Registration for Everlasting Life (see Pls.' Damages Trial Ex. 4, ECF No. 114-2); (5) advertisements Napper generated for the Everlasting Life Restaurant and Lounge (see Pls.' Damages Trial Ex. 5, ECF No. 114-3); and (6) one of Napper's Facebook posts about the bench trial in this case (see Pls.' Damages Trial Ex. 8, ECF No. 114-4).[3] The parties also moved into the record various other summary reports and evaluations pertaining to the financial status of the Restaurant and Napper's other businesses, including: (1) a written report authored by Jerome S. Paige & Associates, LLC that purports to analyze Fair and Balanced LLC's sales and costs (see Pls.' Damages Trial Ex. 11, ECF No. 114-5); (2) a spreadsheet titled “Everlasting Life Restaurant & Lounge Expenses by Vendor Detail” that allegedly demonstrates the Restaurant's costs and expenses from 2011-15 (Def.'s Damages Trial Ex. 1, ECF No. 105-1); (3) a summary of the Restaurant's gross sales and claimed profits (Def.'s Damages Trial Ex. 2, ECF No. 105-2); and (4) a list of itemized costs and expenses for the Restaurant in 2014 and 2015 (Def.'s Damages Trial Exs. 3 & 4, ECF Nos. 105-3 & 105-4). On the whole, these documents seek to generally address and illuminate the financial situations of Napper, Fair and Balanced LLC, and Everlasting Life between the years of 2011 and 2015. They are also relevant to this Court's conclusions regarding the status of the Everlasting Life trademark, Napper's state of mind regarding his use of that trademark, and the value of Yah Kai's equipment and inventory inside the Complex on the night of November 15, 2011.

         B. Noted Record Deficiencies And How This Court Has Addressed Them

         This Court's findings of fact, as well as its ultimate determinations regarding the damages owed to Plaintiffs, come with a caveat: the parties in this matter have not presented the kinds of detailed business documentation that one would expect to see in a case such as this one, and this dearth of information has stymied the Court's evaluation of the monetary damages owed to Plaintiffs. For example, due to Napper's bookkeeping and business practices, this Court has had great difficulty determining the costs and expenses that the Restaurant incurred from 2011 to 2015-and, thus, the extent of the Restaurant's profits for that same time period. The difficulty has primarily arisen because, in addition to Everlasting Life, Napper opened two other restaurants (named “Evolve” and “Vegaritos”) in this same timeframe (see Damages Trial Tr. at 55:19-56:19 (Napper)), and he has managed all three foodservice establishments through a single corporate entity-Fair and Balanced, LLC (see 3d Liability FOF Tbl. at 96, 103 (A, B)). And rather than accounting for these businesses separately, Napper and his accountant appear to have commingled the proceeds and expenses from all of these restaurants in Fair and Balanced LLC's records of expenses and tax returns. (See, e.g., Everlasting Life Restaurant & Lounge Expenses by Vendor Detail (“Itemized Expenses”) (attached hereto as Appendix A), Def.'s Damages Trial Ex. 1, ECF No. 105-1, at 177, 182 or A8-A9 (showing itemized rental payments for Napper's other restaurants Evolve and Vegaritos); see also Fair and Balanced's Tax Returns FY 2011-15; Damages Trial Tr. at 55:5-58:8.) Thus, despite the fact that the defense has submitted certain financial statements as evidence pertinent to the calculation of damages, there is considerable uncertainty regarding the profits that Napper actually derived from Everlasting Life during the relevant timeframe.[4]

         The additional fact that Napper has occasionally compensated himself (and his family members) directly-using business proceeds either to repay “loans” owed to his family or to pay himself and family members directly as “contractors”-further compounds the Court's uncertainty about the trustworthiness of the financial records that have been presented. (See, e.g., Itemized Expenses at 64-65, 82, 85, 94 or Appendix A at A1-A5 (identifying expenses related to Napper or his family members with labels such as “[l]oan, ” “[r]eimbursement, ” and “[c]ontractor”); see also Damages Trial Tr. at 43:4-44:23.)[5] Napper also appears at times to have conflated the revenue stream of his businesses with his own personal income; in fact, during the trial, Napper repeatedly maintained that goods or services that he purchased with proceeds earned by the business were his in a manner that suggested that he had purchased them personally. (See, e.g., July 14, 2015 Trial Tr. at 80:15-81:20 (Napper); Damages Trial Tr. at 167:3- 18 (Def.'s Counsel).)

         In short, these unorthodox accounting practices and unexplained discrepancies undermine the accuracy of many of Defendant's financial documents, including such significant records as Fair and Balanced LLC's tax returns for 2011-15 (ECF No. 114-1); Napper's personal tax returns for 2012-15 (ECF No. 114); the list of Itemized Expenses that Edwards submitted to the Court after the damages trial (ECF No. 105-1); and portions of the Supplement Itemized Costs and Expenses for Everlasting Life in 2014 and 2015 (ECF Nos. 105-3 & 105-4). And because Plaintiffs' expert report relies on several of these documents to reach its conclusions (see Expert Report, ECF No. 114-5, at 1-2), that report is rendered suspect as well. The Court further notes that in addition to the significant substantive uncertainty regarding the financial information that Napper has provided, various procedural deficiencies pertaining to the format in which the information has been presented are also clearly manifest.[6]

         For present purposes, it is also important to note that Napper never submitted any documentation whatsoever regarding the Restaurant's sales, profits, or expenses for the 2016 or 2017 calendar years. Plaintiffs served a subpoena seeking the 2016 information prior to the commencement of the damages bench trial, but Napper and his accountant failed to produce this information prior to trial. During the damages trial, the Court directly ordered Napper and his accountant to provide this documentation. (See Damages Trial Tr. at 154:21-23 (Edwards).) And while Napper's accountant acknowledged that a printout of such information would “not [be] a problem” (id. at 153:5-15, 154:12-20), Defendant's tardy submission of other documents more than one week later did not contain this information; instead, defense counsel represented that “[t]he accountant has not reconciled the raw data” and thus “this information is not in the Defendant's possession at this time, ” (Def.'s Doc. Produc. Reqs. at 2).

         For its part, Yah Kai has presented no records that represent the actual value of the equipment, goods, and inventory that Napper seized when he evicted Plaintiffs on November 15, 2011. To be sure, Yah Kai is not entirely at fault for this deficiency, because its business records and any pre-seizure inventory of tangible assets remained within the Complex and within Napper's control following his seizure of the facility in November of 2011. (See Damages Trial Tr. at 32:6-8 (Prince Immanuel).) However, with a potential legal claim against Napper on the horizon, this Court sees no reason why Yah Kai failed to take steps to generate a roughly contemporaneous accounting of its assets (albeit from memory), which would have been a far superior form of evidence than the testimony that Plaintiffs presented at trial regarding the restaurant equipment and other tangible items that Yah Kai had purchased prior to the seizure. (See Id. at 31:15-32:8.)[7]

         In fairness, this Court also fully acknowledges that the parties' failure to gather and present the kinds of business records that are ordinarily required to generate a reasonably accurate damages calculation in a trademark infringement case stems in large part from their nontraditional beliefs regarding property ownership. See Yah Kai I, 195 F.Supp.3d at 298. That is, as this Court explained in Yah Kai I, the parties here were once all members of the African Hebrew Israelite Community, which emphasizes communal ownership and does not recognize individual property rights with respect to Community-related endeavors. (See 3d FOF Tbl. at 19 (A, B); see also July 15, 2015 Trial Tr. at 55:11-15, 106:3-13, 109:23-110:20 (Prince Immanuel).)[8]

         But the Community's culture is only a partial explanation for the record deficiencies that are apparent in this case; it is also clear that some of the problems are directly attributable to actions of Yah Kai and Napper in the context of the instant dispute. For example, Napper served Yah Kai with a notice to vacate the Complex twice before the eviction date-on July 20, 2011, and on October 15, 2011, see Yah Kai I, 195 F.Supp.3d at 304-which means that Yah Kai was fully aware of Napper's claims of ownership and had plenty of time to move, copy, or otherwise secure its business records. It did not do so. Similarly, Napper refused to return Yah Kai's business documents and other assets when he evicted Plaintiffs from the Complex, and has presumably misplaced those records, since neither party has presented them in this case. See Id. at 323. Furthermore, as noted above, neither party undertook a detailed accounting of the converted items after the eviction, despite being fully aware that they were engaged in a contentious legal dispute regarding ownership of the business. And perhaps most significantly, throughout this litigation, Napper has repeatedly failed to adhere to his discovery obligations, which has both delayed the proceedings and hampered Plaintiffs' ability to establish an accurate quantum of damages.[9]

         All this means that the instant record provides an exceedingly thin factual foundation upon which to rest this Court's conclusions regarding the monetary damages owed to Plaintiffs. As a general matter, these record deficiencies have broad implications, because a plaintiff generally bears the initial burden of proof regarding damages, and that burden includes establishing the amount of damages owed or gross sales earned by a preponderance of the evidence. See Fishman Transducers, Inc. v. Paul, 684 F.3d 187, 192 (1st Cir. 2012) (“The ordinary rule in civil cases is proof by a preponderance of the evidence . . ., and the text of section 1117 does not prescribe a different burden of proof.”). However, it is also well established that, in trademark infringement and unfair business practice cases, the evidence a plaintiff proffers related to the sales arising from the infringing use should be construed liberally (i.e., not mechanically) to ensure that the victimized party receives an adequate recovery for the defendant's infringing conduct. Cf. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 262 (1916) (“[I]t is more consonant with reason and justice that the owner of the trademark should have the whole profit than that he should be deprived of any part of it by the fraudulent act of the defendant. It is the same principle which is applicable to a confusion of goods. If one wrongfully mixes his own goods with those of another, so that they cannot be distinguished and separated, he shall lose the whole, for the reason that the fault is his; and it is but just that he should suffer the loss rather than an innocent party, who in no degree contributed to the wrong.”).

         Moreover, and importantly, the Lanham Act grants the factfinder significant discretion to determine the appropriate remedy, see Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1111-12 (9th Cir. 2012), so long as the Court exercises that discretion based on the standards that the D.C. Circuit has laid out for making these kinds of awards, see Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636, 641-42 (D.C. Cir. 1982). Thus, even where the record fails to substantiate fully the parties' specific contentions regarding the extent of the defendant's profits and/or the scope of the infringing sales, the factfinder can undertake to estimate those figures, and to adjust them as needed, in order to arrive at a fair and just damages figure, given the facts presented and the goal of ensuring that justice is served. See Skydive Ariz., 673 F.3d at 1110 (requiring only that “the [factfinder's] award was supported by reasonable inferences and assessments, based on substantial evidence in the record”).

         C. The Particular Factual Bases For This Court's Damages Calculation

         With that said, this Court will now undertake to set forth its findings of fact pertaining to its calculation of the monetary damages that Napper owes to Prince Immanuel and Yah Kai as a result of the violations that the Court identified in its liability opinion. In the main, the Court's findings concern: (1) the tangible and intangible assets of Yah Kai that were inside the Complex on the date of the eviction and that were converted when Napper took over the business; (2) the estimated profits that the Restaurant has generated during Napper's infringing use of Prince Immanuel's trademark; and (3) the actual damages Plaintiffs suffered due to Napper's infringement and unfair competition. The Court also addresses certain facts that have not been established in the instant record, and that thus cannot be the basis for other requested remedies such as punitive damages or injunctive relief.

         1. Certain Furniture, Equipment, And Other Tangible And Intangible Assets Belonging To Yah Kai Were Present In The Complex When Napper Took Over That Business

         When Napper evicted Yah Kai from the Complex on the evening of November 15, 2011, he seized control of all of the furniture, equipment, records, and inventory that was present at the facility on that date, including the food inventory, the food-production equipment, restaurant supplies, administrative supplies and documents, and computers. (See July 15, 2015 Trial Tr. at 102:7-20, 103:4-24 (Prince Immanuel); Damages Trial Tr. at 114:5-11 (Napper).) Yah Kai and other members of the Community attempted to retrieve these items on the night that Napper evicted them in November of 2011, but Napper requested that the police eject them from the premises before Yah Kai's property could be accessed and removed. Yah Kai I, 195 F.Supp.3d at 305. (See also Damages Trial Tr. at 113:2-23 (Napper).) Napper then changed the Complex's locks the next day, preventing Yah Kai from recovering any of the property, equipment, inventory, or records housed within the Complex. (See July 14, 2015 Trial Tr. at 100:21-101:1.)

         The record establishes the following regarding the equipment and inventory that was within the Complex when Napper executed his takeover. A few months prior to Napper's takeover of the Complex, its manager (Yah Kai's president, William Young) had provided information to Yah Kai's accountant about the value of the furniture and equipment that Yah Kai had purchased for the Complex. (See Dep. of William Young, Damages Trial Ex. 8 (“Young Dep.”), ECF No. 43-4, at 95:22-96:13.) As the president of Yah Kai and the one who made purchases on Yah Kai's behalf, Young would have had the personal knowledge necessary to provide a reasonable estimate of the value of such goods. (See Id. at 10:9-10; 17:16-19; 27:13-19.) In other words, Young was an individual “familiar with the condition” of the Complex's equipment and inventory, and thus was “competent to testify as to its value.” Checkpoint Foreign Car Serv., Inc. v. Sweeney, 242 A.2d 148, 149 (Md. 1968).

         During the deposition testimony that Young provided in 2014, in the context of this litigation, Young was asked to review a document dated June 27, 2011-titled “balance sheet”-that purportedly listed the value of the “furniture and equipment” within the Complex as $17, 864, based on the aforementioned figures that Young had provided to his accountant. (Young Dep. at 96:1, 96:4; see also Id. at 95:22-96:8.)[10]Because Young's deposition testimony is undisputed, and is the only available evidence of the value of any of Yah Kai's tangible assets at the time of conversion, this Court considers Young's testimony about a business record that reports the value of equipment and inventory to be reliable evidence regarding the minimum market value of Yah Kai's tangible assets within the facility at that time.

         Additionally, because Napper seized certain records that Yah Kai had been storing inside the Complex and used those documents to secure a substantial rebate from the Complex's utility provider (as fully described in the Court's prior memorandum opinion regarding liability, see Yah Kai I, 195 F.Supp.3d at 323-25), the Court finds that the value of the intangible property right that Napper converted when he secured the utility rebate for himself is the negotiated rebate amount-i.e., $125, 000. (See Id. at 325; see also July 15, 2015 Trial Tr. at 92:6-16; 93:15-94:6 (Allen).)

         2. During Napper's Infringing Use Of The Everlasting Life Trademark, The Restaurant Has Generated Significant Sales And Has Also Incurred Some Costs

         Napper reopened the Complex under the name “Everlasting Life Restaurant & Lounge” a few days after Plaintiff's eviction, and he has continued to operate that foodservice business ever since. (See Damages Trial Tr. 99:4-6; 113:25-114:24 (Napper).) As the owner of the Everlasting Life trademark, Prince Immanuel formally notified Napper of his ownership of the mark two days before the eviction, and thereby specifically alerted Napper to the prospect of the potential infringement that would arise due to his then-threatened takeover of the business. (See 3d Liability FOF Tbl. at 132 (A, B); Trademark Infringement Notice from Prince Immanuel, Pls.' Liability Trial Ex. 15, ECF No. 29-1.) Prince Immanuel's letter of November 13, 2011 specifically informed Napper that his use of the “Everlasting Life” trademark was unauthorized, and expressly revoked any license to use that mark that Napper may have believed he possessed. (See Trademark Infringement Notice from Prince Immanuel.) Moreover, Napper received and understood this notice, but ignored it. (See Damages Trial Tr. at 99:21-100:20 (Napper).)

         Thus, Napper's infringing use of Price Immanuel's trademark was entirely knowing; indeed, during the trial, Napper admitted that he had continued to operate the Restaurant in violation of the “Everlasting Life” trademark despite the notice, partly because of his antagonistic personal relationship with Prince Immanuel, who Napper believed “didn't look out for [his] best interest[s].” (Id. at 100:18; see also id. at 100:13-20.) And even after this Court issued its memorandum opinion finding Napper liable for infringing upon Prince Immanuel's trademark, Napper has persisted in his willful use of the Everlasting Life trademark in connection with his operation of the Restaurant, because he still maintains that he is the rightful owner of the Complex. (See Id. at 99:4-17.)

         Since Napper's November 2011 takeover of the business, the Restaurant has generated significant (albeit decreasing) gross sales. Between November of 2011 and December 2015, the business had a total “ordinary income” of $3, 555, 428, which is comprised of $136, 475 in November and December of 2011; $1, 019, 788 in 2012; $1, 084, 287 in 2013; $771, 341 in 2014; and $543, 537 in 2015. (See Everlasting Life Restaurant & Lounge Gross Profit, January 2011 through December 2015 (“Everlasting Life Gross Sales Summary”) (attached hereto as Appendix B), ECF No. 105-2, at 1 or B1.) Meanwhile, the business spent $1, 232, 518 on the goods needed for sales during this same timeframe-specifically, $51, 030 in November and December of 2011; $482, 464 in 2012; $449, 206 in 2013[11]; $197, 617 in 2014; and $52, 201 in 2015. (See id.) It appears that a total of $379, 234 was paid for rent (excluding late fees) to Kingdom Management, the Restaurant's landlord, between November 2011 and the end of 2015. (See Itemized Expenses at 95-96, 298-99 or Appendix A at A6-A7, A10- A11.)[12] The Court also finds that Napper has demonstrated $227, 210 in operating expenses relating to his infringing use of Prince Immanuel's trademark in 2014 (see Supplement Itemized Costs and Expenses for Everlasting Life 2014 (attached hereto in Appendix C), ECF No. 105-3, at 1 or C1), and $223, 434 in operating expenses relating to his infringing use of the trademark in 2015 (see Itemized Costs and Expenses for Everlasting Life 2015 (attached hereto in Appendix C), ECF No. 105-4, at 1 or C2).[13]

         3. Napper Genuinely (But Mistakenly) Believes That He Is, And Always Was, The Rightful Owner Of The Business And The Everlasting Life Trademark

         Napper's testimony during both the liability and damages trials had one consistent theme: his belief that the Everlasting Life brand and associated food-service business belongs to him. (See, e.g., July 14, 2015 Trial Tr. at 142:16-23 (“My testimony is that my business, which is the food business that I established in 1995 . . . The name [of that business] was Everlasting Life.”); Damages Trial Tr. at 99:14-17 (“And Everlasting Life had been my business. I established it, and I established it for the purposes that it serves now, and [the Court's] decision didn't change my heart.”).) Make no mistake, in the wake of this Court's decision in Yah Kai I, Napper knew that running the Everlasting Life Restaurant & Lounge violated Prince Immanuel's legal rights. (See Damages Trial Tr. at 100:11 (“I realized what was written on the paper[.]”).) But Napper was unwavering in his conviction that his pivotal role in conceiving of and managing the business from its inception conferred upon him the right of ownership, even if the financial equity belonged to someone else and the trademark was registered under someone else's name. (See Id. 100:11-13 (“So I realized what was written on the paper, but I knew what was right. And I knew that I was, I was the person who did all of this.”).) In other words, Napper has consistently expressed certainty that the business formerly known as “Everlasting Life Health Complex” and its accompanying trademark belongs to him (without regard to the financial stake of Plaintiffs and other Community members), apparently because of a conception of property ownership that differs sharply from the precepts that are recognized under federal and Maryland law. See Yah Kai I, 195 F.Supp.3d at 311 (explaining that, as the first user of the trademark, Prince Immanuel owned the Everlasting Life trademark and the right of businesses to use that trademark).

         Thus, Napper is mistaken. But this Court finds that his mistaken ownership convictions are earnestly and sincerely held, and therefore, Napper's related actions in recovering what he viewed as his own property are not properly characterized as malicious. See Black's Law Dictionary 1101 (10th ed. 2014) (defining “malicious” as meaning “[w]ithout just cause or excuse”).

         4. The Registration Status Of The Everlasting Life Trademark Is Presently Uncertain

         There is no dispute that Prince Immanuel (and, by license, Yah Kai) was the rightful holder of the registered “Everlasting Life” trademark at the time that Napper evicted Plaintiffs and took over the Complex. See Yah Kai I, 195 F.Supp.3d at 319. However, with the passage of time, the registration status of that trademark has become uncertain. The testimony at the damages trial indicated that Prince Immanuel may have allowed the Everlasting Life trademark's registration to lapse when it was up for renewal in 2016. (See Damages Trial Tr. at 29:17-30:15.) And additional evidence suggested that Napper spied an opportunity, and took steps to register the Everlasting Life trademark for himself. (See 3d Dam. FOF Tbl at 8 (B) (acknowledging that Napper had attempted to trademark the Everlasting Life mark with the United States Patent and Trademark Office (USPTO) in June or July 2016); Damages Trial Tr. at 11:20-12:16 (taking judicial notice that this application was still pending as of November 15, 2016).)

         To date, neither of the parties has provided the Court with any notice or other definitive evidence regarding the current status of the registered trademark, and therefore, this Court is not in a position to know whether Prince Immanuel continues to hold the trademark registration, or whether Napper has successfully registered that trademark with the USPTO. Given Napper's mistaken beliefs about legal ownership, as described above, the Court is not inclined to credit Napper's bald statements of present ownership, and without additional evidence, this Court cannot determine which party the USPTO ...


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