United States District Court, District of Columbia
JOHN N. XEREAS, Plaintiff/Counterclaim Defendant,
MARJORIE A. HEISS, et al, Defendants/Counterclaim Plaintiffs.
MEMORANDUM OPINION AND ORDER
DEBORAH A. ROBINSON UNITED STATES MAGISTRATE JUDGE.
Post Trial Motion to Alter or Amend the Jury's Judgment
(“Defendants' Motion to Alter or Amend”) (ECF
No. 234) and Defendants' Post-Trial Motion for Judgment
as a Matter of Law (“Defendants' Motion for
Judgment as a Matter of Law”) (ECF No. 235) are pending
for determination. After careful consideration of the
parties' submissions, and for the reasons that follow,
the court will grant Defendants' Motion to Alter or Amend
and deny Defendants' Motion for Judgment as a Matter of
nearly five years of litigation, including extensive
discovery, the Plaintiff, in August 2017, filed his Second
Amended Complaint. See Plaintiff's Second
Amended Complaint (ECF No. 102). After extensive briefing,
the court entered an order granting summary judgment as to
fifteen counts in the Second Amended Complaint, dismissed
four counts in the Second Amended Complaint, and denied
summary judgment as to the remaining claims of trademark
infringement (Counts I through III), breach of contract and
the duty of good faith and fair dealing (Counts V, VII, and
VIII), unjust enrichment (Count XVIII), and cybersquatting
(Count XIX). See Order (ECF No. 187).
commenced on November 5, 2018. After the close of
Plaintiff's evidence, the Defendants moved for judgment
as a matter of law on the basis that there was no evidence
presented support the Plaintiff's claim for damages for
breach of contract or for trademark infringement.
See Transcript of Jury Trial, Day 7 (ECF No. 233) at
1016-17. In opposition, the Plaintiff argued that damages
were his lost salary following his removal as a Managing
Member of Riot Act LLC, and losses stemming from
Defendants' conversion of the Riot Act trademark. See
id. at 1019. The court granted the Motion for Judgment
as a Matter of Law as to the conversion of the Riot Act
trademark. See id. at 1022-23. However, the court
denied the motion as to the breach of contract claims because
“the jury could find at a minimum that Mr. Xereas was
not paid a salary and that constitutes a damage or one item
of damages for the alleged breach.” See Id. at
1023:14-18. Thus, that issue was submitted to the jury.
deliberations, the jury returned a verdict on the issues
submitted. See Verdict Form (ECF No. 225). The jury
awarded Plaintiff “$106, 000 plus legal fees” for
recovery for the breach of contract claim and found in favor
of the Defendants on their counterclaim for Conversion,
awarding the Defendants “return computer.”
filed three motions: the two motions discussed herein, as
well as the Motion for Attorney's Fees (ECF No. 236).
Plaintiff filed the Motion to Amend the Pleadings to Conform
to Evidence Presented at Trial (ECF No. 237).
Motion for Judgment as a Matter of Law
in their Motion for Judgment as a Matter of Law, argue that
the Plaintiff did not present any evidence supporting the
contention that he is entitled to damages stemming from the
breach of contract claims. See Defendants'
Motion for Judgment as a Matter of Law at 3-6. Defendants
contend that none of the alleged breach of contract claims
have any causal connection to the damages Plaintiff claims as
“unpaid salary.” Id. at 5. Defendants
also point out that the court held that the failure to pay a
salary was not a breach of contract. See id.
(quoting Memorandum Opinion at 15). Additionally, the
Defendants argue that there is no contractual basis for
ensuring that the Plaintiff receive the $45, 000 salary
because there is not guaranteed payment for the full salary
permitted by the Operating Agreement. See id. at 6.
opposition, Plaintiff submits that Defendants effectively
admit that the jury correctly determined that the defendants
had breached the Amended Operating Agreement. Plaintiff's
Opposition to Defendants' Post-Trial Motion for Judgment
as a Matter of Law (ECF No. 242) at 1-2. Plaintiff further
submits that there was sufficient evidence-including witness
testimony- for the jury to conclude that the Defendants
unfairly removed Plaintiff as a Managing Member and holding
member meetings without proper notice in violation of the
Operating Agreement. Id. at 6-10. Plaintiff contends
this constitutes sufficient evidence of promises Defendants
made to Plaintiff that he would receive a salary and was
wrongly denied that salary. Id. at 9. Plaintiff
further argues that the jury could have reasonably disagreed
whether breach of contract occurred, whether damages were
required, and what damage amount would be appropriate.
See id. at 13- 18 (discussing multiple pieces of
evidence and arguments made at trial to suggest that
reasonable minds could disagree whether a breach of contract
occurred). Plaintiff argues that the jury could have
considered any contract breach and the appropriate damages,
and that the jury's award of damages was not limited to
the “list of itemized damages in [Plaintiff's]
Final Pretrial Statement.” See id. at 21.
Finally, Plaintiff argues that Defendants are precluded from
making a “causation” argument because it was not
raised in the Plaintiff's Rule 50(a) motion following the
close of evidence. Id. at 23.
reply, Defendants reassert the arguments made in their
Motion. See Defendants' Reply In Support of
Defendants' Post-Trial Motion for Judgment as a Matter of
Law (ECF No. 245) at 3-5. Specifically, Defendants argue that
Plaintiff's allegations of (1) failure to give timely
notice of a Managing Member meeting, (2) failure to provide
meeting agendas, and (3) Plaintiff's ultimate removal as
a Managing Member, was not the cause of any salary to be
withheld. Id. Defendants further argue that a loan
Defendant Dawson gave to the LLC or the indemnification
provision of the Operating Agreement cannot be the basis for
Plaintiff's alleged damages. Id. at 5-6.
Finally, Defendants argue that they filed a renewed motion
under Rule 50(a) as to the lack of damages arising from the
alleged breaches of contract, and thus preserved this
argument for the present motion. Id. at 7-8. Thus,
the Defendants argue that the motion should be granted
because the Plaintiff has failed to offer evidence of damages
causally related to the alleged breach of contract.
Motion to Alter or Amend
submit that the jury award of $106, 000 has no basis in the
evidence presented at trial. Defendants also submit that the
jury award of attorney's fees has neither a statutory or
contractual basis, nor did Plaintiff request or argue for
attorney's fees at trial. See Defendants'
Motion to Alter or Amend at 1. Defendants first argue that
the court should alter or amend the jury award of $106, 000
to avoid clear error or prevent manifest injustice.
Id. at 2-4. Defendants contend that, at the most,
Plaintiff should be limited to the amount of damages he
specified in his in the pretrial statement, $45, 000.
Id. at 3. Second, Defendants argue that the
jury's award ...