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McDonald Apiary, LLC v. Starrh Bees, Inc.

United States District Court, D. Nebraska

April 3, 2017

MCDONALD APIARY, LLC, a Nebraska Limited Liability Company, Plaintiff,
STARRH BEES, INC., a California Corporation, et al., Defendants.


          John M. Gerrard United States District Judge

         This matter is before the Court on the parties' post-trial briefing on claims submitted to the Court, McDonald Apiary's motion for judgment as a matter of law or for new trial (filing 280), and Starrh Bees' motion for judgment as a matter of law (filing 278).


         The pretrial order (filing 191) identified several controverted and unresolved issues, some of which were to be tried to the Court. Filing 191 at 3-13. The Court's order on post-trial briefing (filing 275) directed the parties to assert any claims they still intended to pursue in their post-trial briefs, and advised that any claims not asserted would be waived. Filing 275 at 1. The only claim that has been asserted post-trial is McDonald's claim against Starrh and the other defendants (collectively, Starrh) under the Nebraska Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. § 87-301 et seq. (UDTPA). See filing 284. Accordingly, the other claims tried to the Court, including Starrh's claims for accounting and replevin, will be dismissed. The Court's findings of fact and conclusions of law with respect to McDonald's UDTPA claim follow.

         The UDTPA sets forth a lengthy list enumerating the "deceptive trade practices" actionable under the UDTPA. See § 87-302(a). McDonald's post-trial brief is not particularly helpful at identifying precisely which statutory practices are at issue, generally asserting that Starrh's "conduct violates UDTPA, Nebraska Revised Statutes §§ 87-301 to 87-306, specifically including various deceptive trade practices set forth in section 87-302(a)." Filing 284 at 17. But McDonald's pretrial proposed findings of fact and conclusions of law (filing 210) focus on three particular provisions. Filing 210 at 19-20. Specifically,

[a] person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she . . . [u]ses any scheme or device to defraud by means of: (i) Obtaining money or property by knowingly false or fraudulent pretenses, representations, or promises; or (ii) Selling, distributing, supplying, furnishing, or procuring any property for the purpose of furthering such scheme[.]

§ 87-302(a)(16). It is also a "deceptive trade practice" if a party "[c]auses likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another, " § 87-302(a)(3), or "[d]isparages the goods, services, or business of another by false or misleading representation of fact, " § 87-302(a)(9). In the absence of other direction, the Court will focus its attention on those provisions.

         McDonald contends that Starrh engaged in deceptive trade practices in six ways: (1) concealing its intent to compete with McDonald, (2) falsely representing that it was associated with McDonald, (3) placing hives without permission from landowners, (4) permitting Susan Mulligan to represent herself as Starrh's attorney, (5) placing its hives near McDonald's, and (6) spoliation of evidence. Filing 284 at 17-24. The Court finds no merit to any of those claims.

         Concealing Intent to Compete

         McDonald argues that Starrh engaged in a deceptive trade practice by allegedly concealing its intent to compete with McDonald during its business relationship with McDonald. Filing 284 at 18. The Court finds no merit to this claim for two reasons. First, as discussed by the Court in dismissing McDonald's fraud claim, the Court finds insufficient evidence to prove that Starrh misrepresented any intent to compete with McDonald. And in the absence of misrepresentation, the Court finds the evidence insufficient to show a "scheme or device to defraud" within the meaning of § 87-302(a)(16), or any other deceptive trade practice enumerated in § 87-302(a).

         But even if there was evidence of some sort of deceptive practice, it would still not warrant relief. The UDTPA provides only for equitable relief. See State ex rel. Stenberg v. Consumer's Choice Foods, Inc., 755 N.W.2d 583, 587 (Neb. 2008). Specifically, injunctive relief can be sought by a "person likely to be damaged by a deceptive trade practice of another[, ]" and the Court may order additional equitable relief if necessary "to protect the public from further violations[.]" § 87-303. But here, even if Starrh concealed or misrepresented an intent to compete, there is no evidence that any such practice is ongoing. Simply put, whatever Starrh did is done: there is no evidence that McDonald is likely to be further damaged, nor any evidence that the public requires protection.

         Impersonating McDonald Apiary

         McDonald's claim that Starrh misrepresented itself as being associated with McDonald is premised on the testimony of John Haller, who testified that Starrh placed hives on his property despite him telling Starrh's representatives that they could do so as long as they were "part of Susan McDonald's deal[.]" But the Court finds the evidence on this claim to be insufficient to prove Starrh engaged in a deceptive trade practice.

         Haller testified that his conversation with Jonathan Gonzalez and his companions lasted only 60 to 90 seconds. And Haller admitted that his conversation primarily took place with Jeff Hugen, not Gonzalez, so there is no clear basis to impute anything Hugen heard to the defendants. But more fundamentally, there is very little other evidence of any intent to deceive. The evidence is that Gonzalez was in a truck with a "Starrh Bees" logo on the side, and that the hives that were placed were clearly marked as Starrh's as well. Simply put, if Starrh was trying to pass itself off as McDonald, it wasn't trying very hard. The Court finds the evidence to be more consistent with a simple misunderstanding than a deceptive trade practice.

         And furthermore, as discussed above, there is no evidence to support an award of prospective injunctive relief. One instance, even if it had been proved, would be insufficient to establish a course of conduct threatening damage to McDonald or the public at large.

         Placing Hives Without Permission

         McDonald's claim that Starrh placed hives without landowner permission is premised on Gary Binger's testimony. But Binger only testified that he saw some beehives on his property: he could not say that they were Starrh's. Nor does any other evidence establish that they were Starrh's. So, there is clearly not enough evidence to prove that Starrh was responsible for those hives-or, even if they were Starrh hives, that the placement was anything other than inadvertent or accidental. There is even less evidence that the single set of misplaced hives presents an ongoing threat of injury warranting injunctive ...

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