Putt-Putt, LLC v. 416 Constant Friendship, LLC et al
Filing
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MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 10/1/2013. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
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v.
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Civil Action No. 8:12-cv-03018-AW
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416 CONSTANT FRIENDSHIP, LLC et al., *
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Defendant.
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MEMORANDUM OPINION
PUTT-PUTT, LLC,
Plaintiff,
Pending before the Court is Defendant David Vedadi’s Motion for Summary Judgment.
Doc. No. 42. The Court has reviewed the motion papers and exhibits and concludes that no
hearing is necessary. See Loc. R. 105.6 (D. Md. 2011). For the reasons that follow, Defendant’s
Motion will be DENIED.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the parties’ motion papers and exhibits, with all
reasonable inferences drawn in favor of the nonmoving party. The factual background from the
Court’s April 5, 2013 Memorandum Opinion, Doc. No. 31, is also incorporated by reference.
On February 8, 2002, the Mottley Group, LLC (“Mottley Group”), a now-forfeited
Maryland limited liability company owned in partnership by James Mottley and Thomas
Mottley, entered into a franchise agreement with Plaintiff Putt-Putt, LLC (“Putt-Putt”) to operate
an authorized Putt-Putt Fun Center at the facility located at 416 Constant Friendship Boulevard
in Abingdon, Maryland (“the Abingdon fun center”). Doc. No. 43-2, Callahan Aff. ¶¶ 2-4. The
Mottley Group operated its authorized Putt-Putt franchise until the second half of 2010, when it
ceased reporting royalties to Putt-Putt. Id. ¶ 5. On or about December 22, 2010, Thomas
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Mottley signed a settlement agreement and general release with Putt-Putt that released him from
claims arising out of the February 2002 franchise agreement, required payment of a termination
fee to Putt-Putt, and provided that he would act as Putt-Putt’s representative for the possible
purchasing or leasing of the Abingdon fun center. Id. ¶ 6.
In November 2010, P.D.A. LLC (“PDA”) purchased the promissory note for the
Abingdon fun center from Wells Fargo Bank, N.A. Doc. No. 43-7; Doc. No. 42-3, Vedadi Aff.
¶¶ 3-4. Defendant David Vedadi is the Managing Member of PDA, which was created in 2002
and maintains its principal office at 19110 Montgomery Village Avenue in Gaithersburg,
Maryland. Id. ¶ 2; Doc. No. 19-2 at 8, 19. PDA’s intention upon purchasing the note was to turn
the property for resale or to lease it. Doc. No. 42-3 ¶ 3. Following the purchase of the note,
PDA initiated foreclosure proceedings on the property in the Circuit Court for Harford County,
Maryland. Id. ¶ 4. On April 5, 2011, Paul Case Aiken II (“Aiken”), as court-appointed trustee in
the foreclosure proceedings, offered for sale at public auction the Abingdon fun center, which he
sold to himself as trustee for PDA for $1,000,000. Doc. Nos. 43-7, 43-8, and 43-9. Aiken has
also been representing Vedadi in the instant proceedings.
Around the time of the foreclosure proceedings, Vedadi directed Aiken to form
Defendant 416 Constant Friendship, LLC (“416 CF”). Doc. No. 42-3 ¶ 7. The new limited
liability company was formed on May 10, 2011, and shared the same principal office as PDA.
Doc. No. 43-11. Vedadi avers that he sought to transfer ownership of the Abingdon fun center
from PDA to a new entity after the foreclosure proceedings concluded, and that 416 CF was
created with this purpose in mind. Doc. No. 42-3 ¶ 6.
At some point in 2011, Vedadi and representatives of Putt-Putt entered into discussions
regarding the future of the Abingdon fun center. On or about March 20, 2011, David Cassels, a
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minority shareholder of Putt-Putt and President of a marketing company of which Putt-Putt is a
client, met with Vedadi and Thomas Mottley at the Abingdon fun center. Doc. No. 43-28,
Cassels Aff. ¶¶ 2-3. According to Cassels, Vedadi represented that he intended to purchase the
Abingdon fun center. Id. ¶ 3. The parties discussed Vedadi’s plans for the property and updates
Vedadi would be required to make to reopen it as an authorized Putt-Putt Fun Center. Id. ¶¶ 4-5.
At the time of the March 20 meeting, the Abingdon fun center was still branded as a Putt-Putt
Fun Center. Id. ¶ 6.
David Callahan, CEO and President of Putt-Putt, avers that he had at least five separate
telephone conversations with Vedadi in the spring and early summer of 2011. Doc. No. 43-2 ¶ 8.
According to Callahan, Vedadi claimed to own the business at the Abingdon fun center. Id.
Callahan avers that he spoke with Vedadi on May 13, 2011 about the need to debrand the
Abingdon fun center before he opened it for business, unless he was approved as a Putt-Putt
franchisee. Id. ¶ 9. Later that day, Callahan e-mailed Vedadi to confirm the substance of their
telephone conversation. Id. ¶ 10; Doc. No. 43-4. Ten days later, on May 23, 2011, Callahan had
another telephone conversation with Vedadi and reiterated that debranding of the facility was
necessary unless Vedadi became an authorized franchisee. Doc. No. 43-2 ¶ 11. The same day,
Putt-Putt’s office manager sent Vedadi an e-mail with an attachment explaining Putt-Putt’s
debranding requirements. Doc. No. 43-5.
Three days later, on May 26, 2011, a new Maryland limited liability company named
Solomon Entertainment, LLC (“Solomon Entertainment”) was formed with James Mottley listed
as the resident agent and the Abingdon fun center (416 Constant Friendship Boulevard) listed as
the company’s principal office. Doc. Nos. 43-13, 43-14. According to its articles of
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organization, Solomon Entertainment was established with the purpose of “Entertainment
Facility.” Doc. No. 43-14.
On June 9, 2011, Callahan sent formal notice to the Mottley Group, James Mottley, and
Thomas Mottley that Putt-Putt was terminating its franchise agreement for the Abingdon fun
center. Doc. No. 43-2 ¶ 13; Doc. No. 42-3 ¶ 10. Callahan also provided a copy of Putt-Putt’s
debranding requirements with the notice of termination. Doc. No. 43-2 ¶ 13. On or about July
11, 2011, Callahan had a telephone conversation with Vedadi and James Mottley, who told
Callahan that he was managing the Abingdon fun center for Vedadi. Id. ¶ 14. During the call,
Callahan again advised Vedadi and Mottley that debranding was required and that they could not
operate the facility as a Putt-Putt Fun Center. Id. ¶ 15. Subsequent to that conversation,
Callahan attempted to further communicate with Vedadi regarding the need to debrand the
Abingdon fun center, but his phone calls were not returned. Id. ¶ 16.
For his part, Vedadi avers that Putt-Putt contacted him in the summer of 2011 to inquire
whether he would be willing to sell or lease the property. Doc. No. 42-3 ¶ 8. Vedadi confirms
that he had several communications with Putt-Putt representatives, including Callahan, but that
Vedadi abandoned these discussions. Id. Vedadi also confirms that Putt-Putt sent him its
debranding requirements. Id. ¶ 9. However, Vedadi avers that at all times while he
communicated with Putt-Putt, he was not operating a business, nor has he ever operated a
business, at the location of the Abingdon fun center. Id. ¶ 11.
After Vedadi abandoned discussions with Putt-Putt, on October 11, 2011, Aiken formed a
Maryland corporation called All American Fun Center, Inc. (“All American”) with the stated
purpose of operating an arcade. Doc. Nos. 43-15, 43-16. Records from the Harford County
Health Department and the Division of Labor and Industry Inspection indicate that All American
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and Solomon Entertainment were licensed to operate at the location of the Abingdon fun center
from 2011 through 2013. Doc. No. 42-3 ¶ 12; Doc. No. 42-6; Doc. No. 42-7.
On December 8, 2011, PDA, by and through its attorney Aiken, filed a motion in the state
foreclosure proceedings for judgment awarding possession of the property. Doc. No. 19-2 at 1314. PDA’s motion represented that it was the foreclosure purchaser and equitable owner of the
property, that Mottley Group and other potential claimants had vacated and abandoned the
Abingdon fun center, and that PDA was exposed to irreparable harm by not having the ability to
preserve and protect the property. Id. The following day, the Circuit Court for Harford County
granted PDA’s motion and awarded possession of the Abingdon fun center to PDA. Id. at 17.
As discussed in the Court’s April 5 Memorandum Opinion, following the award of
possession of the Abingdon fun center to PDA, the business at 416 Constant Friendship
Boulevard, without authorization from Plaintiff, began operating and promoting itself as a PuttPutt Fun Center. See Doc. No. 31 at 2-3. For example, the business publicly labeled itself as a
“Putt Putt Fun Center” in various advertisements, promotional materials, and at its www.puttputtfuncenter.com website. Doc. No. 12-6 at 2-8; Doc. No. 12-7 at 2, 6; Doc. No. 43-22. The
business featured signage using Putt-Putt’s federally trademarked terms and designs, including a
cartoon miniature golf ball character named “Buster,” and the website featured several
trademarked images including a ribbon and flag design. Doc. No. 1-5 at 2-8; Doc. No. 1-9 at 17;
Doc. No. 12-7 at 2. In June 2012, a Groupon advertisement for the unauthorized facility
promoted the fact that “new owners gained control” of the property in 2011. Doc. No. 43-23.
In March 2012, Vedadi directed Aiken to prepare and file an application for trademark
protection with the United States Patent and Trademark Office (“PTO”) for the “Putt-Putt Fun
Center” trademark. Doc. No. 42-3 ¶ 14; Doc. No. 19-2 at 21. The application listed 416 CF as
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the owner of the mark and 416 Constant Friendship Boulevard as the owner’s address. Id. The
applicant’s e-mail address was listed as casper@casper-mgm.com, an address affiliated with
another Vedadi enterprise, Casper Management, Inc. Id.; Doc. No. 43-24. As part of the
application, Aiken signed a declaration under penalty of perjury verifying the contents of the
application, including its representation that 416 CF had been using the mark in commerce since
at least January 21, 2012. Doc. No. 19-2 at 21-25. Aiken also submitted a photograph of the
Putt-Putt Fun Center design logo on what appeared to be a staff member’s uniform as evidence
of 416 CF’s use of the mark. Id. at 27.
On June 18, 2012, the Examining Attorney of the PTO issued a non-final Office Action
refusing to register 416 CF’s mark due to likelihood of confusion with Putt-Putt’s registered
trademarks. Doc. No. 1-9. On December 17, 2012, 416 CF filed a response to the PTO’s Office
Action, argued against the Examining Attorney’s conclusions, and urged the PTO to reconsider
its application. Doc. No. 30-2. The Examining Attorney issued another non-final Office Action
on January 7, 2013. Doc. No. 30-3. When 416 CF failed to respond within six months, the PTO
issued a Notice of Abandonment of 416 CF’s application on August 5, 2013. Doc. No. 43-25.
Aiken avers that he identified January 21, 2012 as the first date of the mark’s use in
commerce because it was approximately thirty days after the Circuit Court for Harford County
granted possession of the property to PDA in the foreclosure proceedings. Doc. No. 42-4, Aiken
Aff. ¶ 6. Aiken further maintains that “[t]his date was not provided to [him] by Mr. Vedadi,
PDA, LLC or 416 CF,” and that he “only used information that [he] was aware of through [his]
involvement in the Foreclosure Action.” Id.
Vedadi avers that the reason for submitting the application to the PTO was to find out
whether he would be able to use the Putt-Putt mark when soliciting any potential tenants. Doc.
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No. 42-3 ¶ 13. Vedadi also directed Aiken to reach out to Putt-Putt representatives in 2012 to
discuss the possibility of having a franchise at the location, but he eventually decided to abandon
these discussions. Id. ¶ 15. Vedadi asserts that as a result of the rejection of the trademark
application and for “other reasons,” neither he nor 416 CF “assumed control of or operated at the
Location.” Id. ¶ 16. Vedadi stopped all attempts to set up any business under 416 CF, and the
entity was forfeited and “never operated as more than a possibility.” Id. Finally, Vedadi avers
that he never took title to the property located at 416 Constant Friendship Boulevard, he has no
ownership or interest in any entity operating at the location, he never participated in the
operations at the location, and he never induced, encouraged, instructed or otherwise participated
in any usage of the Putt-Putt mark. Id. ¶¶ 17-20.
On October 11, 2012, Putt-Putt filed suit against 416 CF and Vedadi, alleging counts of
trademark infringement (Count I) and unfair competition (Count II) under the Lanham Act,
unfair competition under Maryland common law (Count III), and violations of the Maryland
Consumer Protection Act (MCPA) (Count IV). Doc. No. 1. On April 5, 2013, the Court
granted-in-part Putt-Putt’s Motion for Summary Judgment and found Defendant 416 CF liable
for Counts I, II, and III, while Count IV was dismissed. Doc. Nos. 31-32. The Court held, inter
alia, that there was no genuine issue of material fact that 416 CF had used Putt-Putt’s mark
without authorization. Doc. No. 31 at 7-8. Trial is pending with respect to Plaintiff’s claims for
damages against 416 CF. In his pending Motion, Defendant Vedadi argues that he is entitled to
summary judgment on Putt-Putt’s claims against him because he did not use or otherwise
participate in the use of Putt-Putt’s mark. The Motion has been fully briefed and is ripe for the
Court’s consideration.
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II.
STANDARD OF REVIEW
Summary judgment is only appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). The Court must “draw all justifiable
inferences in favor of the nonmoving party, including questions of credibility and of the weight
to be accorded to particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520
(1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
To defeat a motion for summary judgment, the nonmoving party must come forward with
affidavits or other similar evidence to show that a genuine issue of material fact exists. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact
presents a genuine issue “if, after reviewing the record as a whole . . . a reasonable jury could
return a verdict for [the non-moving party].” Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 959 (4th Cir. 1996) (citing Anderson, 477 U.S. at 248). Although the Court should believe
the evidence of the nonmoving party and draw all justifiable inferences in his favor, a
nonmoving party cannot create a genuine dispute of material fact “through mere speculation or
the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
Furthermore, a nonmoving party cannot defeat summary judgment with merely a scintilla of
evidence. See American Arms Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009).
III.
ANALYSIS
Plaintiff’s remaining claims against Defendant Vedadi are for trademark infringement
under the Lanham Act, unfair competition under the Lanham Act, and unfair competition under
Maryland law. Section 32(1) of the Lanham Act creates liability for the unconsented “use in
commerce [of] any reproduction, counterfeit, copy, or colorable imitation of a registered
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mark[.]” 15 U.S.C. § 1114(1) (2006). To establish a claim of trademark infringement, a plaintiff
must prove that it (1) owns a valid and protectable mark and (2) that the defendant’s use of that
mark creates a likelihood of confusion. See, e.g., George & Co. LLC v. Imagination Entm’t Ltd.,
575 F.3d 383, 393 (4th Cir. 2009); CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 267
(4th Cir. 2006); Lyons P’ship v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir. 2001). The
likelihood of confusion test also applies to determining liability for unfair competition under
section 43(a) of the Lanham Act, see, e.g., People for the Ethical Treatment of Animals v.
Doughney, 263 F.3d 359, 364 (4th Cir. 2001), and for unfair competition under Maryland state
law, see, e.g., Mid South Bldg. Supply of Md., Inc. v. Guardian Door & Window, Inc., 847 A.2d
463, 471-72 (Md. Ct. Spec. App. 2004). To establish Defendant’s personal liability on its
claims, Plaintiff must demonstrate that Vedadi personally participated in, or was the driving
force behind, the infringing activity. See, e.g., Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145,
149 (4th Cir. 1987); Planet Techs., Inc. v. Planit Tech. Grp., LLC, 735 F. Supp. 2d 397, 402, 405
(D. Md. 2010); Stafford Urgent Care, Inc. v. Garrisonville Urgent Care, P.C., 224 F. Supp. 2d
1062, 1065-66 (E.D. Va. 2002); see also Brittingham v. Jenkins, 914 F.2d 447, 458 (4th Cir.
1990) (“As the principal architect of the underlying infringement, equity requires that [the
appellant] be held jointly and severally liable for the judgment.”).
Vedadi argues that he is entitled to summary judgment on Plaintiff’s claims because he
did not use Plaintiff’s mark in connection with Defendants’ business. See Doc. No. 42-1 at 8.
Vedadi principally relies on statements from his affidavit in which he avers that neither he nor
416 CF ever took title to or possession of the property or operated a business at 416 Constant
Friendship Boulevard, and that neither he nor 416 CF ever participated in the business operations
at the location or induced, encouraged, instructed, or otherwise participated in the use of Putt-
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Putt’s mark. Doc. No. 42-3 ¶ ¶ 11, 16-20. Vedadi emphasizes that the sole factual support for
finding that 416 CF operated at the location and used Putt-Putt’s mark is the trademark
application filed by Aiken, but that Aiken had no personal knowledge as to whether 416 CF was
operating at the location or using Plaintiff’s mark and that the basis for his representations in the
application was what he had learned in the state court foreclosure action. Doc. No. 42-4 ¶ 6.
As a preliminary matter, the Court will address what appear to be requests by Vedadi that
it reconsider its previous determination as to 416 CF’s liability, or that Vedadi should not be
bound by the Court’s ruling with respect to 416 CF. As discussed above, the Court held in its
April 5, 2013 Memorandum Opinion that there was no genuine dispute of material fact that 416
CF had used Putt-Putt’s mark without authorization. Doc. No. 31 at 7-8. Vedadi’s request is
governed by Rule 54(b), which provides that “any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties
does not end the action . . . and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
Courts in this district generally have identified the following grounds for reconsideration of an
interlocutory order: “(1) there has been an intervening change in controlling law; (2) there is
additional evidence that was not previously available; or (3) the prior decision was based on
clear error or would work manifest injustice.” Coulibaly v. JP Morgan Chase Bank, N.A., No.
DKC 10-3517, 2013 WL 3507096, at *1 (D. Md. July 10, 2013) (quoting Akeva L.L.C. v. Adidas
Am., Inc., 385 F. Supp. 2d 559, 565-66 (M.D.N.C. 2005)).
Vedadi has failed to present an adequate basis for the Court to reconsider its previous
determination of 416 CF’s liability. Vedadi argues that “[a]t first blush, the trademark
application appears to put ‘use’ squarely on Defendants. However, the attached Affidavits reveal
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that the application was not based on the true state of facts regarding business operations at the
Location or use of the trademark.” Doc. No. 42-1 at 10. Vedadi fails to explain why he failed to
submit such evidence prior to the Court’s ruling on Putt-Putt’s Motion for Summary Judgment
on 416 CF’s liability. Defendants had ample opportunities to present sworn affidavits from
Vedadi and Aiken. Indeed, following a telephonic conference on February 15, 2013, the Court
granted Defendants leave to file supplemental briefing and evidence to support their contention
that there were genuine issues of material fact with respect to 416 CF’s liability. See Doc. No.
24.
Regardless, the affidavits attached to Vedadi’s Motion for Summary Judgment do not
suffice to alter the Court’s previous determination. Aiken avers that in filling out 416 CF’s
trademark application, he selected a date for 416 CF’s first use of the mark in commerce based
only upon information that he obtained in the state court foreclosure proceedings. Doc. No. 42-4
¶ 6. This averment makes little sense on its face, as the Court is unable to discern what
information, if any, Aiken could have gleaned from the foreclosure proceedings to fill out 416
CF’s trademark application. However, even if the Court accepted that Aiken may have erred
with respect to the date of first use, Aiken’s affidavit does not create a genuine issue of fact that
416 CF was using Putt-Putt’s registered mark. Indeed, the attachment to the trademark
application, a photograph of a the Putt-Putt Fun Center logo on what appears to be a staff
member’s uniform, is evidence of 416 CF’s use in commerce of Plaintiff’s mark. Doc. No. 19-2
at 27. Accordingly, Vedadi has presented no justification for the Court to reconsider the issue of
416 CF’s liability.
As for Vedadi’s liability, the Court concludes that despite the statements in his affidavit,
Doc. No. 42-3, there are genuine issues of material fact as to whether Vedadi personally
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participated in, or was the driving force behind, the use of Plaintiff’s mark in commerce.
Although Vedadi asserts that he never had any interest in or control over the business operating
at 416 Constant Friendship Boulevard, see id. ¶¶ 16, 18, the entity of which he was Managing
Member, PDA, was awarded possession of the property in December 2011, Doc. No. 19-2 at 1314, 17. Vedadi admits that he sought to create a new entity to which PDA could transfer the
property, and that he directed his attorney Aiken to establish 416 CF for that very purpose. Doc.
No. 42-3 ¶¶ 6-7. It is also undisputed that Vedadi engaged in a series of communications with
Putt-Putt representatives during 2011 and 2012, during which Putt-Putt informed Vedadi of the
need to debrand the facility and the parties discussed how Vedadi could obtain approval for a
franchise at the location. See, e.g., id. ¶¶ 8, 15, Ex. A; Doc. No. 43-2 ¶¶ 8-16; Doc. No. 43-28
¶¶ 2-6. Putt-Putt representatives aver that these communications included personal meetings
with Vedadi at the Abingdon location and telephone conversations with Vedadi while he was at
the location. Doc. No. 43-2 ¶¶ 14-15; Doc. No. 43-28 ¶¶ 3-5.
After discussions broke down, Vedadi admits that he directed Aiken to prepare and file a
trademark application on behalf of 416 CF for the “Putt-Putt Fun Center” in March 2012. Doc.
No. 42-3 ¶ 14. As discussed in substantial detail above and in the Court’s April 5, 2013 Opinion,
Aiken declared under penalty of perjury that 416 CF was using the mark in commerce and
attached an exhibit demonstrating its use. Doc. No. 19-2 at 21-27. The business operating at
416 Constant Friendship Boulevard vigorously promoted the facility throughout 2012. Doc. No.
1-5 at 2-8; Doc. No. 1-9 at 17; Doc. No. 12-6 at 2-8; Doc. No. 12-7 at 2. The business’s efforts
included one advertisement which promoted its new ownership. See, e.g., Doc. No. 43-23. As
late as December 17, 2012, following Plaintiff’s filing of this suit, 416 CF ratified the substance
of its trademark application when it contested the PTO’s Office Action. Doc. No. 30-2. In sum,
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a reasonable fact finder could conclude that Defendant Vedadi was the driving force behind the
infringement of Putt-Putt’s marks.
Vedadi maintains that other businesses, including All American and Solomon
Entertainment, were operating at the location from 2011-2013. Doc. No. 42-3 ¶ 12; Doc. No. 426; Doc. No. 42-7. First, this fact is not undisputed, particularly given the representations in 416
CF’s trademark application that it was operating the business and using the Putt-Putt mark in
commerce. Second, even accepting that these entities had a role in the operation of the Putt Putt
Fun Center, a reasonable fact finder could nevertheless conclude that Vedadi was still the
principal architect of the infringement. It was Vedadi’s attorney who incorporated All American
on October 11, 2011, soon after Vedadi abandoned discussions with Putt-Putt. Doc. Nos. 43-15,
43-16. With respect to Solomon Entertainment, although the company was originally linked to
James Mottley upon its formation on May 26, 2011, records from Mottley’s 2012 bankruptcy
case indicate that he no longer held an interest in the company at the time of the infringing
activity. See Doc. No. 43-21 at 35. The same records indicate that Mottley owed Vedadi more
than $3,000,000. Id. at 19. Furthermore, when PDA took possession of the Abingdon fun center
in December 2011, it represented to the Court that the other potential claimants had vacated and
abandoned the property. Based on this evidence, it could be inferred and a reasonable fact finder
could conclude that Vedadi actually assumed control of Solomon Entertainment in 2011 or 2012.
Therefore, Vedadi has not carried his burden under Rule 56 to show that there is no genuine
issue of material fact that he used or personally participated in the unauthorized use of PuttPutt’s marks. Vedadi’s Motion for Summary Judgment will therefore be denied.
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IV.
DEFENDANTS’ REQUEST FOR JURY TRIAL
Rule 38(b) of the Federal Rules of Civil Procedure provides that “[o]n any issue triable of
right by a jury, a party may demand a jury trial by . . . serving the other parties with a written
demand—which may be included in a pleading—no later than 14 days after the last pleading
directed to the issue is served . . . .” Fed. R. Civ. P. 38(b)(1). “The term ‘last pleading’ refers to
a pleading which contests the issue triable by a jury, such as an answer to a Complaint or a reply
to a counterclaim.” Fletcher v. Maryland, No. WMN-11-649, 2012 WL 689116, at *1 n.1 (D.
Md. Feb. 29, 2012) (citing Donovan v. Travelers Trash Co., 599 F. Supp. 43, 44 (E.D.N.C.
1984)). Rule 38(d) provides that a party waives a jury trial unless its demand is properly served
and filed. Fed. R. Civ. P. 38(d).
Defendants in this case first requested a jury trial in their July 12, 2013 status report.
Doc. No. 39 at 2. This status report was filed nearly five months after Vedadi filed his Answer
to Plaintiff’s Complaint, and nearly seven months after 416 CF filed its Answer. See Doc. Nos.
9, 25. Rule 39(b) provides that “[i]ssues on which a jury trial is not properly demanded are to be
tried by the court.” Fed. R. Civ. P. 39(b).1 Defendants’ jury demand was untimely and improper
pursuant to the Federal Rules of Civil Procedure, and will be stricken by the Court. Accordingly,
the remaining issues in this matter will be tried in a bench trial.
V.
CONCLUSION
For the foregoing reasons, Vedadi’s Motion for Summary Judgment will be DENIED,
and Defendants’ untimely request for a jury trial will be stricken. A separate Order will follow.
October 1, 2013
Date
/s/
Alexander Williams, Jr.
United States District Judge
1
Rule 39(b) further provides that courts “may, on motion, order a jury trial on any issue for which a jury trial might
have been demanded.” Fed. R. Civ. P. 39(b). No such motion has been filed by Defendants.
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