Calloway Cleaning & Restoration, Inc. v. Burer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CALLOWAY CLEANING &

RESTORATION, INC.,

Case No. 1:22-cv-12

Plaintiff,

Bowman, M.J.

v.

ROBERT T. BURER, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER1

I. Background

Plaintiff Calloway Cleaning & Restoration Inc. (“Calloway”) filed suit against

Defendants Robert Burer (“Burer”) and his company, 1 Call Away Restoration LLC (“1

Call Away”) in January 2022, alleging that Defendants are liable for deceptive trade

practices under Ohio law, trademark violations under the Lanham Act, tortious

interference with contractual and business relationships, conversion of Plaintiff’s property,

defamation, breach of a fiduciary duty, misappropriation of confidential, trade secret and

proprietary information, and civil conspiracy. Defendant Burer counterclaimed for unjust

enrichment and conversion. Prior to trial, the Court permitted defense counsel to

withdraw, entered a default against both Defendants, and dismissed Defendant Burer’s

counterclaim. (Docs. 48, 60). Thereafter, Calloway withdrew its jury demand, Burer

consented to the withdrawal of the jury demand, and a bench trial was conducted to

1The parties consented to proceeding before the undersigned magistrate judge under 28 U.S.C. § 636(c).

(Doc. 19).

determine damages. Calloway was represented by counsel; Defendant Burer appeared

pro se, while 1 Call Away did not appear.

II. Findings of Fact2

At trial, the Court heard sworn testimony from four witnesses: Michele Calloway,

Levona Robbins, Mike Bowman3, and Robert Burer. The Court also considered multiple

exhibits. As the finder of fact, the Court is the sole judge of the credibility of the witnesses.

Based in part on the personal animus between Ms. Calloway, Ms. Robbins and Mr. Burer,

and their questionable motivations, the Court found portions of the testimony of all three

to be less than fully credible. The Court now sets forth its findings of fact and conclusions

of law in accordance with Federal Rule of Civil Procedure 52(a).

A. The Parties’ Personal and Professional Relationships

James Calloway established the Calloway business in 2011. Calloway provides

services ranging from carpet cleaning to demolition, waste disposal and

reconstruction/restoration of residential and commercial buildings, personal property and

equipment. Calloway provides such services to clients whose property is damaged by

water, fire, mold, or other calamities. On May 29, 2012, Calloway registered its

trademarked name and logo: “CALLOWAY CLEANING & RESTORATION Help is just a

call-o-way.” (PX1).

Michele Calloway was married to Defendant Robert “Bobby” Burer in 2005, but

filed for divorce roughly eighteen months later. Following her divorce, Michele married

2For the sake of judicial economy, the Court has endeavored to limit its written Findings of Fact to those

most relevant to the claims asserted and damages arising therefrom. For that reason, the Court finds no

need to discuss many irrelevant and inflammatory statements made by Mr. Burer.

3To eliminate any question, Mike Bowman is not related to the Undersigned.

James Calloway. James died in 2019, leaving Ms. Calloway4 as sole owner and President

of Calloway. After James died, Burer began texting Ms. Calloway, sending positive and

reaffirming messages. Ms. Calloway then learned that Burer was now sober. The two

renewed their romantic relationship in 2020 and eventually began living together in Ms.

Calloway’s home. During the tenure of their second relationship, they freely mixed

business with pleasure. But their second union proved shorter than their first, dissolving

on or about August 27, 2021. This lawsuit represents the fallout.

When the pair reunited, Burer offered to help with Calloway; Ms. Calloway gladly

accepted. From September through December 2020, Burer worked at Calloway in an

unpaid capacity,5 while also working for at least one Burer family owned business, T.B.

Properties Management. He also spent time at sobriety meetings and sponsoring others

on his same path of sobriety. As Burer increased his Calloway workload, Ms. Calloway

agreed to put him on the payroll. In January 2021, Calloway hired Burer as General

Manager (“GM”) at a rate of $2,000 per week, with intermittent $1,000 “discretionary”

bonuses made by Ms. Calloway.

Ms. Calloway initially had great faith in Burer’s abilities and paid for Burer to obtain

restoration certifications. In turn, Burer was an active manager, firing employees with

performance and/or addiction issues and creating a new system whereby Calloway’s calls

were forwarded to his cell phone. But over the eight months during which Burer served

as GM, the personal and professional relationship between the couple soured. On several

occasions, Burer sought – and Ms. Calloway denied - an ownership interest in Calloway.

4The title “Ms.” is used to distinguish between the business entity (Calloway) that is the Plaintiff in this case,

and its individual owner, Michele Calloway.

5After his departure, Burer sought compensation for this period, disputing Calloway’s position that he

worked only in a “volunteer” capacity

Near the end of Burer’s tenure, Ms. Calloway’s mother, Levona Robbins, began

working at Calloway. In mid-August 2021, Ms. Calloway and Burer took a cruise together.

Robbins called her daughter to inquire what she should do with company checks.

Listening in, Burer responded angrily, sending Robbins a text that expressed his irritation

that Robbins had consulted her daughter rather than him as GM, and accusing Robbins

of interfering in their relationship. Burer’s text states that the incident “reminded me that

if I don’t have any ownership in this [business] immediately I’m not going to proceed…”

On August 27, 2021, Burer parted ways with Ms. Calloway and her company.

Because he was an at-will employee, Calloway could have fired him at any time.

Ms. Calloway maintains she did not fire him, despite testifying that Burer was a poor

manager who became verbally abusive. While some employees were fired by Burer, Ms.

Calloway testified that others left because they were unhappy with him. By the time Burer

left, just two employees remained.

For his part, Burer had signed no confidentiality, non-compete, or non-solicitation

agreement with Calloway. Free to set up a competing business upon his departure, he

immediately did so. Still, Calloway alleges that Burer violated the law in multiple ways.

Calloway now seeks damages based on misconduct alleged to have occurred over three

distinct time periods: (1) during the fall of 2020 when Burer and Ms. Calloway renewed

their relationship; (2) on August 27, 2021 when that relationship imploded and Burer

departed Calloway; and (3) after Burer’s departure when he formed 1 Call Away as a

competing business.

B. Burer’s Conduct During the Relationship

1. Bills from the Burer Garage

Two of Calloway’s damage claims6 relate to the Burer Garage, a business

operated by Burer’s father in which Burer has an undefined ownership interest. Burer

Garage began servicing Calloway vehicles in the fall of 2020 and continued those

services throughout the couple’s relationship. Calloway contends that Burer owes

damages for overcharges by Burer Garage during the relationship, and for failing to

reduce certain invoices by an agreed upon “offset.”

Calloway’s evidence was insufficient to prove the alleged overcharges. It was only

after Burer departed that Ms. Calloway came to believe that Burer Garage had

overcharged Calloway. She was unable to state an exact amount but in retrospective

analysis, questioned charges totaling $5,000. Ms. Calloway’s testimony on this issue was

highly speculative and not credible.

Ms. Calloway’s testimony about the offset was somewhat more credible. On

November 3, 2020, a property owned by T.B. Properties Management sustained

significant fire damage.7 Calloway performed remedial work and invoiced T.B. Properties

on December 12, 2020 for $12,180.34. The next day, Calloway paid $7,927.71 to Burer

Garage for previously performed maintenance work. Around that time, Burer and Ms.

Calloway verbally agreed that Burer would arrange for Calloway’s pending invoice to T.B.

Properties to be offset against future maintenance service by Burer Garage.

Other than the single payment made to Burer Garage in December 2020, Calloway

made no further payments for mechanic services prior to Burer’s August 2021 departure

6Calloway presented Exhibit PX33 as its itemized list of damages.

7At the time, the property was rented to a bar/restaurant identified as Mango’s Bar & Grille.

from Calloway. By that point, Calloway’s outstanding balance at Burer Garage had grown

to $17,478.04. Burer Garage refused to reduce its bill and would not release the vehicles

still in its possession without full payment. Calloway paid the bill in September 2021 -

without the requested offset. Despite relatively weak proof of the offset agreement8 and

ambiguities about the relationships between Burer and the two family businesses,9 Burer

did not contest the existence of the offset agreement. Proof of damages in the amount of

the unpaid restoration invoice was therefore unrebutted.

2. Retained Furniture and Gift Cards

Calloway’s list of damages includes sums for the conversion of equipment and gift

cards. At trial, Calloway also alleged that Burer wrongfully retained or converted Calloway

furniture.10 The latter claim arose from Burer’s October 2020 receipt of furniture

purchased by Calloway for use at an apartment in Cedar Rapids, Iowa, during a period

when he/Calloway were working there. After completion of the job, on an unspecified

date, Burer directed the furniture to be transported to a warehouse. Later, Ms. Calloway

verbally requested the return of the furniture, which was not returned. No details were

provided concerning how long the furniture was used, when Ms. Calloway requested its

return, or why Calloway believed that Burer maintained possession or control of it at the

warehouse.

8Neither the date of the parties’ agreement nor the date or dates that Ms. Calloway asked for the offset to

be applied were in evidence.

9The ownership interests held by Burer in each family business and relationship between Burer’s Garage

(which agreed to the offset) and T.B. Properties (the entity that owed money to Calloway) were not

explained in great detail.

10Many of the allegations of the complaint varied from the evidence presented at trial. For example, the

complaint alleges the conversion of $3,000.00 in gift cards. At trial, however, the evidence showed that

Calloway purchased only $1,500.00 in gift cards.

In addition to the value of the furniture, Calloway seeks $1,500.00 as

reimbursement for $50 gift cards purchased from a local restaurant by Ms. Calloway and

Burer on December 22, 2020.11 Inconsistently, Ms. Calloway testified that Burer took

possession of the gift cards the night they were purchased, but later stated that he

removed them from a drawer when he left Calloway. She explained that Calloway

purchased the gift cards to distribute as customer thank you gifts. But there was no

evidence that she or Burer made any attempt to do so at any point during the following

eight months. In any event, Ms. Calloway verbally requested the return of the gift cards

on an unspecified date, but they were not returned.

While underwhelming in its level of detail, Ms. Calloway’s testimony about the

furniture and gift cards was uncontested. Considering the record as a whole, the Court

finds the testimony to be sufficient to establish, by a preponderance of the evidence, that

Calloway suffered losses totaling $4,036.15 for the value of the furniture and $1,500.00

in gift cards.

C. Burer’s Conduct on August 27, 2021

Calloway’s additional claim for the conversion of equipment arises from Burer’s

actions on August 27, 2021, the date when his relationship with Ms. Calloway and her

company ended. When Burer left, he took with him a 16-passenger van that Ms. Calloway

asserted was filled with equipment. Although she later recovered the van, Calloway

accuses Burer of retaining the equipment for use in his new business. But Calloway

11Although Ms. Calloway testified that the gift cards were valued at $1593.79, the receipt that she

referenced reflects the purchase of two meals and wine in addition to the gift cards. (See PX 4).

presented no evidence that Burer did in fact use Calloway’s equipment.12 And Ms.

Calloway never filed a police report against Burer or an insurance claim.13

The evidence about what equipment was taken was wildly inconsistent.14 Soon

after Burer’s departure, Calloway took inventory, an exercise that Ms. Calloway testified

that Calloway performed “routinely” based on a history of prior loss. Calloway’s partially

handwritten notes reflect a large amount of “missing” inventory including 62 air movers

and 5 dehumidifiers.15 But Calloway offered no evidence about the date it had last taken

inventory prior to Burer’s departure. And Ms. Calloway stated that she was not accusing

Burer of taking all of the missing inventory. In fact, the only specific equipment that she

personally accused Burer of taking at trial was one dehumidifier, a camera and a moister

meter.

Robbins offered testimony about two dehumidifiers, insofar as Burer left unfinished

work and two dehumidifiers at the jobsite of a Mr. Shriver on August 27, 2021. When

Burer did not return, Shriver left messages. But by the time that Calloway discovered

those messages, Shriver had hired another company to finish the job and Burer had

retrieved the dehumidifiers.

Consistent with her testimony about the gift cards and furniture, Ms. Calloway

testified that she requested the return of any equipment taken by Burer on an unspecified

date but that no equipment was returned. Despite the loss, Calloway did not purchase

“replacement” equipment until nearly two years later. On July 27, 2023, Calloway spent

12There was no evidence that the equipment bore the “Calloway” logo or other identifying marks.

13By contrast, Ms. Calloway admitted she filed two insurance claims for other missing equipment.

14The complaint alleges equipment loss totaling $54,899, (Doc. 1 at ¶75), but at trial, Calloway claimed

equipment losses totaling only $10,254.74. (See PX33).

15Another page of the same exhibit states that 15 dehumidifiers were missing. (See PX8, at 14).

$10,254.74 to purchase two new dehumidifiers, a hydrosensor, an air mover, a camera,

a camera accessory identified as “FLIR C5 w/MSX & WIFI,” and what the Court infers to

be a moisture meter identified as “MMS3, Accessories & Thermoform.”

The Court finds from a preponderance of the evidence that Burer absconded with

two dehumidifiers from the Shriver job, one camera and a thermal imaging attachment,

plus a moisture meter. By contrast, the Court finds insufficient proof (i.e., less than a

preponderance) that Burer took a hydrosensor or air mover(s). The total replacement cost

of the converted equipment equals $8,892.85 ($3,249.95 (dehumidifier 1) + $2,999.95

(dehumidifier 2) + $499.00 + $799.00 (camera and accessory) + $1,344.96 (moisture

meter)). (PX8, last page). Calloway’s exhibit also shows it paid .078 sales tax. Adding in

sales tax yields a total cost of $9,586.49 for replacement equipment.

D. Burer’s Post-Calloway Conduct

1. Unemployment Benefits Paid by Calloway

According to Ms. Calloway, Burer voluntarily quit on August 27, 2021 after she

refused to give him an ownership interest. Ms. Calloway testified that “Bobby wanted

back” but she believed his offer to be conditional on the grant or sale of an ownership

interest. In contrast, Burer testified he was fired and not permitted to return.

An employee who voluntarily quits is ineligible for unemployment benefits.

Nevertheless, Burer applied for and received state unemployment benefits beginning on

August 30, 2021 based on “lack of work/layoff.” Calloway appealed Burer’s claim,

asserting that Burer had failed to return to work without explanation. The Ohio Department

of Job and Family Services denied Calloway’s appeal and affirmed the benefits award.

Calloway seeks damages in the amount of $11,454.00 for unemployment benefits. But

the Court credits Burer’s testimony and the Ohio agency’s determination over Ms.

Calloway’s testimony on this issue.16

2. Deceptive Practices/Lanham Act Violations

As stated, Burer was not bound by confidentiality, non-compete or non-solicitation

agreements. He was free to set up a competing business and contact Calloway’s

customers. But Calloway rightly objects to the way in which Burer began to compete. Start

with the name of Burer’s new business: “1 Call Away Restoration, LLC.” Calloway objects

that the name of Burer’s business is too close to Calloway’s word and design trademark:

“CALLOWAY CLEANING & RESTORATION HELP IS JUST A CALL-O-WAY.” (See PX1,

emphasis added).

Burer registered “1 Call Away Restoration, LLC” with the State of Ohio on

September 30, 2021. Although 1 Call Away had no employees other than Burer, he paid

a contractor/friend to set up 1 Call Away’s website, using images featuring Calloway

employees working on Calloway jobs.17 Burer also took advantage of the fact that

Calloway’s emergency number was still routed to his cell phone as it had been during his

tenure as GM. It took nearly three weeks, until September 14, 2021, for Calloway to

realize this and reroute the calls back to its office.

Calloway’s automated system recorded the misdirected phone calls, providing

date and time stamps as well as caller ID information.18 Robbins listened to the recordings

16This litigation is not the proper forum to appeal the decision of ODJFS.

17Burer testified (incredibly) that he is unable to use a computer and can barely use a cell phone. The Court

previously discredited Burer’s feeble explanations for his failure to turn over discoverable business and tax

records in Orders granting sanctions to Calloway. (See Docs. 41, 46-48, 59-60).

18Burer disputed the accuracy of the time stamps, citing his own forensic investigation. According to Burer,

after the first day of trial, he and his father recharged his old cell phone and transferred its data to recover

the messages. Burer testified that based on his analysis, the recordings were generated when he was still

employed by Calloway. The Court denied Calloway’s motion to strike Burer’s testimony, choosing instead

to consider its credibility. The Court finds the testimony to be incredible for the purpose for which it was

and followed up by contacting the callers. In recordings placed in evidence, Burer made

false statements to prospective customers. Burer also misrepresented himself without

clarifying that he was not the Calloway business. When a caller on September 1 asked

“Is this Calloway Cleaning?” Burer responded affirmatively. When a caller on September

8 inquired if he was speaking to “Mr. Calloway,” Burer also responded affirmatively.19 On

September 13, 2021, a caller asked to speak to “Michele,” a reference to Ms. Calloway.

Burer told the caller that he was “handling all that business now,” was “in charge now”

and was “an owner,” intentionally misleading the caller to believe that he was running

Calloway.

During the calls, Burer would ask for the customer’s name and number or ask them

to call him back on his cell phone, apparently for the purpose of bidding out the new

business for himself. (See PX36, Sept. 1, 2020 recording of Burer stating he was giving

the caller his personal cell phone “so you don’t have to go back through the office”). But

on other occasions Burer intentionally made statements that were false about Calloway,

either out of spite or because his own business (1 Call Away) lacked the manpower or

equipment to perform the requested work.20 For instance, to a caller on September 9

offered. However, the evidence adds to the Court’s prior conclusions concerning Burer’s deception and

concealment of relevant evidence during discovery in this case. (See PX29, Deposition testimony at 68,

testifying that the data was not recoverable and that he did not produce the “destroyed” phone because he

“turned it in” to the phone company when he got a new phone).

19Only a portion of the September 8 call was played in Court, but the full recording was admitted into

evidence. The full recording reveals that the caller was not a current prospective customer but a confused

window salesman trying to recall why he had a Calloway business card. By the end of the call, Burer and

the caller ascertained that: (1) Burer was not in the market for windows and the salesman/caller was not

seeking restoration work; and (2) the business card had been left at a prior restoration job performed for

the caller.

20Ms. Calloway testified that, unlike Burer’s one-man outfit, Calloway was fully capable of taking on all new

work. Despite suggesting that Calloway had no work crew left by the time Burer departed, she testified that

many employees quickly returned. The Court found her testimony to be only partially credible given the lack

of specificity on how many employees returned or when. Still, Burer did not rebut the testimony that

Calloway either retained or quickly regained the necessary manpower and equipment.

seeking carpet cleaning and deodorizing, he stated the company was “getting away from

carpets” and referred the caller to a Calloway competitor. To a caller on September 13

who was asking why she hadn’t yet heard back from Calloway about a mold sample, he

first told the caller that Calloway probably hadn’t gotten back to her because “they don’t

know what they’re doing,” stating that the referenced workers “are no longer working

here,” before again referring the customer to a competitor. Burer also made statements

that Calloway’s workers were “terrible employees” and “really inexperienced.”

3. Diverted Business in September and October 2021

Calloway seeks compensation for “diverted business opportunities” during

September and October 2021, a damage figure that Calloway calculates at $15,344.40.

But Calloway presented little evidence that the handful of calls between September 1 and

September 13, or any other work performed by Burer or 1 Call Away in September or

October 2021, resulted in diverted work or a loss of earnings for Calloway.21 For example,

Ms. Calloway testified that most of Calloway’s business was repeat business. But there

was no evidence that any existing Calloway customers were likely to have been confused

or misled by Burer that 1 Call Away was Calloway. The sole evidence of confusion that

Calloway presented was the handful of recordings between Burer and prospective new

customers who dialed Calloway’s “emergency” number and were routed to Burer’s cell.

Calloway’s evidence suggested that its concerns were less about trademark

violations than what Ms. Calloway perceived as unfair “poaching” of Calloway’s

customers. (See also Doc. 1, ¶40, alleging that Defendants contacted Calloway’s “three

21Although Defendants failed to provide adequate business records, Calloway failed to provide other

evidence that the callers ultimately hired 1 Call Away to perform the work. Nor did Calloway present

evidence of a decline in its earnings or profits during September and October 2021.

largest customers (whose combined business is worth $500,000 annually…), disparaged

Calloway to each of those customers, and solicited the customers’ business….”)). But the

only evidence presented at trial that concerned repeat business was that pertaining to a

customer identified as BMS Cat. And that evidence did not reveal any deceptive practice,

trademark violation, or other wrongdoing by Burer.

BMS Cat is a larger restoration company that employs subcontractors like

Calloway to perform discrete projects. Mike Bowman of BMS Cat testified that BMS Cat

had worked with Calloway for several years when it entered into a new subcontract with

Calloway to remediate flood damage at an Embassy Suites hotel in Northern Kentucky.

Because the old ballroom carpet in that hotel needed to be torn out and permanent carpet

would not be delivered for months, BMS Cat separated the contract into phases. At the

time (June 2021), Burer was BMS Cat’s primary contact for Calloway. Bowman testified

he was impressed by Burer and with the work that he and his crew performed. Calloway

completed that initial phase of work when it installed temporary carpet shortly before

Burer’s departure.22

In September 2021, Burer informed Bowman that he had left Calloway, but would

like to work on the final phase of the Embassy Suites project. Bowman, who explained

that he had very little prior interaction with Ms. Calloway, readily agreed to hire Burer’s

new company. Bowman based his decision solely on his familiarity with and favorable

impression of Burer rather than any dislike of Calloway.23 He asked Burer for paperwork

22Ms. Calloway’s testimony that Calloway had a contract for the final phase of work, involving the installation

of permanent carpet, was not credible. In addition to contrary testimony by Bowman, the invoice that

Calloway offered was dated August 17, 2021 for “carpet, freight, and underlay per Bobby [Burer]” -

corresponding with the installation of temporary carpet during the first phase.

23Bowman testified that the quality of the work that Burer performed was exemplary. Although Calloway

failed to present any evidence of existing customer confusion, or of diminishment of the value of its

documenting his new business name and tax identification number, which Burer provided

on September 30, 2021. Burer identified the new business as “BB Investment Properties

doing business as 1 Call Away Restoration,” but Bowman fully understood it to be an

entirely separate entity from Calloway. In short, Burer’s solicitation of new business from

BMS Cat reflects no wrongdoing by Burer.

Returning to the issue of the diverted calls, Robbins did testify to a loss that flowed

from one call by a prospective customer identified as Sean Fox. Calloway did not submit

a recording of the Fox call but submitted email correspondence that purported to

document a call on September 12, 2021. In the email, Calloway states that Burer provided

“false information” that Calloway was no longer performing water restoration and referred

Fox to Brock Restoration.24 But at the time that Robbins first contacted Fox as part of her

follow-up from the period of diverted calls, Fox complained about the quality of the work

that had been performed. Assuming (erroneously) that Burer may have performed the

work and sullied Calloway’s reputation in doing so, Robbins instructed a crew to re-do the

Fox job, for which it billed Fox $3,278.34. Soon thereafter, the truth came out that Fox

had never hired Burer but instead had hired Brock Restoration, whose bill Fox had already

paid. Calloway later refunded Fox the $3,278,34, never receiving compensation for the

remedial work it inadvertently performed on Brock Restoration’s behalf.

Calloway also offered testimony about diverted calls from the unhappy Mr. Shriver,

whose Calloway jobsite Burer left incomplete on August 27, 2021. Calloway recovered

trademark through substandard work performed by Burer under the 1 Call Away name, Bowman’s

testimony on this point arguably undermines any claim of dilution or tarnishment under the Lanham Act.

24The Court recognizes that this email provides but one example of a significant amount of hearsay admitted

throughout the trial without objection.

nothing from Mr. Shriver, who had to pay another company to complete the work after

Burer’s departure.

The Court finds the evidence of the Fox and Shriver jobs to be persuasive evidence

of “diverted business opportunities” in September and October of 2021, but insufficient to

justify $15,344.40 in claimed damages. (See PX33). Only the Fox job relates to a defined

loss of $3,278.34 for work performed on behalf of Fox/Brock Restoration. Because there

was no evidence that any other diverted call resulted in work to Burer or a loss to

Calloway,25 the remaining sum of $12,066.06 is presumed to represent the unbilled

invoice for the Shriver job.

An invoice is not profit; Calloway would have had to pay for labor and materials

had it performed the Shriver job. Although Calloway presented no direct evidence of its

profit margin,26 Bowman of BMS Cat testified that a “standard” industry markup was 20%.

The Court therefore finds that Calloway suffered a loss of $2,413.21 for the Shriver job,

or 20% of the presumed $12,066.06 Shriver invoice. Adding the Shriver job loss of

$2,413.21 to the Fox job loss of $3,278.34 yields a total of $5,691.55 in “diverted business

opportunities” damages.

4. The Unpaid Wage Claim

25Calloway’s failure to prove monetary gain by Burer or loss to itself from other diverted calls does not mean

that Calloway recovers nothing for those calls. As discussed below, because Burer defamed Calloway on

two calls, Calloway is entitled to recover damages for that defamation, along with punitive damages and

attorney fees.

26Calloway presented no evidence at all concerning its own financial statements or tax records, leaving the

Court to speculate whether its profits went up, down, or stayed the same after Burer’s departure.

After Burer left, he sought to recover unpaid wages. Burer testified that from

December 2020 through his departure in August 2021, he consistently worked 120-130

hours per week for Calloway, for which he should have been paid overtime. Burer also

maintained that he was owed $3,000.00 per week, meaning that the weeks in which he

was paid only $2,000.00 represented a shortfall. But Ms. Calloway testified that Burer

routinely worked only 40 hours, with rare exceptions, and that she paid $1,000.00

bonuses in addition to his $2,000.00 weekly wage solely in her discretion.

Burer retained counsel to pursue his wage claims. On November 4, 2021, his

attorney emailed a letter demanding $39,000 in unpaid wages.27 On November 23, 2021,

new counsel sent a second letter that similarly sought $39,000 in past due wages.28 At

some point Burer filed a Department of Labor (“DOL”) claim. Ms. Calloway complains that

Burer contacted former employees29 seeking to fraudulently enlarge the DOL

investigation.30

In this case, Calloway seeks reimbursement of $3,850 in attorney fees that it spent

defending the wage claim. But the Court finds no basis for such an award. It was evident

at trial that Burer believed that he was entitled to past wages – as did two separate

attorneys retained to pursue the claim. Because the Court does not find the wage claim

to be wholly meritless or frivolous, Calloway is not entitled to recover its defense costs.

27Calloway pointed out that the November 4 letter from Burer’s attorney corresponds with the date of

Facebook Messenger exchanges between Burer and Ms. Calloway. However, the Court does not view the

Messenger texts to be related to the wage claim.

28The second letter bases Burer’s wage claim on unreimbursed travel/food expenses for September 2020

work in Florida, for hours that Burer worked in 2020 prior to being placed on the payroll, and for “wage

issues” between January and August 2021.

29Given Ms. Calloway’s testimony about the employees’ strong dislike of Burer and the fact that he fired

many of them, the Court assumes the employees may have been less than receptive to Burer’s outreach.

30According to Ms. Calloway, Burer deliberately withheld the employees’ last checks as GM and later tried

to enlarge the DOL claim based on the missing checks he had withheld. However, Ms. Calloway testified

that she quickly discovered his misconduct and re-issued the checks, leaving the employees full paid.

5. November 2021 Messenger Texts and Disparaging Facebook Post

On November 4, 2021 at 10:44 a.m., Ms. Calloway contacted Burer via Facebook

Messenger, texting him: “[S]top calling my jobs and just stay in your lane!!” She accuses

Burer of “name calling and badmouthing” and of stealing a “moisture meter and cameras.”

The same text accuses Burer of getting “jobs by taking my leads I paid for and calling my

jobs and contacts.” Presumably in response,31 Burer wrote “Don’t get in a pissing match

with a SKUNK,” but also wrote “[w]e need to stop this kind of bs--- I want to buy your

company now Paul is gone I’ll buy you [out] today.” Burer also suggests that his offer is

“a wonderful opportunity for you.” The next text reads: “The sooner you get out of the

kitchen the sooner the heat [lets] up.”

Less than a week later, on November 10, 2021, Burer published the following post

on his Facebook (“FB”) account:

1 Call Away Restoration, I’m getting an influx of DISSATISFIED calloway

cleaning and restoration customers and others, I am finishing their jobs as

a courtesy, if you are experiencing this same thing please call me I will finish

your jobs for you, PLEASE call me at 513-520-9924

(PX 15).32

The Court finds no credible evidence that the November 10 FB post was true when

published. Instead, Burer appears to have published the post out of spite based on Ms.

Calloway’s request that he stop contacting Calloway’s customers. Burer testified that he

received 4-5 calls over a two-day period after the post, but was equivocal on whether he

performed any work as a result.

31The exhibit filed of record appears incomplete insofar as it contains date and time stamps for only some

of the messages. (See PX 13).

32No evidence was presented concerning whether Burer’s FB account was public or private, how many FB

“friends” Burer has, or the extent to which the post itself was otherwise disseminated or visible.

6. Burer’s Alleged Profits After Departing Calloway

Calloway asserts that after his departure, Burer’s wrongful conduct earned him

profits totaling $298,085.00. But the Court finds insufficient evidence to show any such

“profits.” When Calloway’s counsel sent Burer a “cease-and-desist” letter concerning his

company name and infringing imagery in January 2022,33 Burer promptly changed his

business name to “Emergency Response Restoration LLC” (“Emergency Response”). He

registered the new entity with the State of Ohio on January 19, 2022 and opened a new

bank account in its name on January 25, 2022. At the same time, he took down the 1 Call

Away website and quit accepting new business under the name of 1 Call Away.

Apart from its failure to prove any likely or actual damages from the use of the 1

Call Away name or Calloway’s imagery on 1 Call Away’s website, Calloway’s evidence of

“profits” suffers from a significant timing problem. Calloway calculates the alleged “profits”

based on an analysis of cash debits and withdrawals made payable to Burer from the

accounts of 1 Call Away and Emergency Response over a thirteen month period

beginning on February 1, 2022 (just after Burer took down the offending website and

established Emergency Response) and ending on March 31, 2023. (See PX32).34 In other

words, Calloway seeks Defendants’ “profits” for a 13-month time period that entirely post-

dates Burer’s wrongful acts as found by the Court.

Based on the evidence presented, the Court finds no damages sustained by

Calloway, or ill-gained profits by Defendants, based on any conduct after January 31,

33The precise date of the cease-and-desist letter is not in evidence, but there were several allusions to

January 2022, corresponding with the time frame in which this lawsuit was filed.

34PX32 reflects a summary of debits from the accounts of both 1 Call Away and Emergency Response

Restoration, LLC. The exhibit was not authenticated by any accountant or similar professional. However,

the underlying banking records were authenticated and Defendant Burer voiced no objection.

2022. The earliest misdirected call entered into evidence was September 1, 2021. Burer

set up 1 Call Away and its website in mid to late September 2021, and established 1 Call

Away’s bank account on October 5, 2021. And Burer published his disparaging Facebook

post about Calloway on November 10, 2021. By January 31, 2022, shortly after receiving

a “cease-and-desist” letter from Calloway’s counsel, Burer had discontinued soliciting

new business under the name of 1 Call Away and had rebranded his business as

Emergency Response. There was no credible evidence that Burer persisted in either

Lanham Act violations or other wrongful conduct after January 2022.

Calloway did present limited evidence that the name “1 Call Away” remained in

nominal use after January 31, 2022, on the bank account established on October 5, 2021

under the name of “BB Investment Properties, LLC DBA 1 Call Away Restoration.” But

Calloway offered no evidence that the deposits placed into the account after January 31,

2022, or debits drawn from that account after January 31, 2022, were related to Lanham

Act violations or to any other claim in this case.35 The only relevant evidence that Calloway

offered was that some deposits represented payments by BMS Cat to BB Investment

Properties and/or 1 Call Away.36 But as explained, neither Defendants’ initial work for

35Under 15 U.S. C. §1117(a), a plaintiff can recover profits solely by proving defendant's sales, leaving the

defendant to rebut the presumption that sales equal profits. Here, Calloway chose to attempt to prove profits

based not on 1 Call Away’s sales, but on “debits” that post-dated any Lanham Act violations. Although

Calloway was certainly hampered by Defendants’ failure to produce discoverable business records,

Calloway still had access to 1 Call Away’s banking records beginning on October 5, 2021 (the date Burer

established the account) through January 31, 2022. Yet Calloway elected not to provide any analysis of 1

Call Away’s records for that critical time period.

36Calloway offered into evidence a check register from BMS Cat that reflects multiple payments to “BB

Investment Properties LLC DBA 1 Callaway [sic] Restoration,” including a $45,000 payment made to BB

Investment Properties on January 13, 2022 that corresponds with the installation of permanent carpet at

the Embassy Suites (of which no more than 20% reflected profit per the testimony of Mr. Bowman). Invoices

sent to BMS Cat between January 31, 2022 and March 2023 similarly reflect Burer’s continued use of the

“1 Call Away” entity name for BMS Cat. As detailed above, BMS Cat made the conscious decision to

proceed with Mr. Burer’s new company and there was no name confusion. At some point in 2023, BMS Cat

severed its relationship with Burer due to issues unrelated to this case. BMS Cat has since sought to

reestablish its relationship with Calloway.

BMS Cat, nor Burer’s continued use of 1 Call Away for bills sent to BMS Cat, reflect any

harm to Calloway caused by Burer.

In addition to the mismatched timing between Calloway’s claim for “profits” and the

period of Defendants’ wrongdoing, Calloway’s calculation relies in part on bank records

from Emergency Response. But Calloway did not allege that Emergency Response

infringed upon its trademark, and failed to offer any evidentiary basis for holding that non-

party to this lawsuit liable on the claims asserted.

Calloway also failed to prove by a preponderance of the evidence that all debits

made payable to Burer from 1 Call Away’s account should be characterized as “profits.”

Burer testified that he often paid subcontractors who performed work for him in cash,

providing some evidence that the debits might not represent “profits.” But even if Calloway

had proved that the debits occurred during the relevant time period and limited its analysis

to 1 Call Away’s account, and even if this Court were to accept Calloway’s speculative

hypothesis that all debits reflect “profits,” a legal analysis of the equities still would not

favor Calloway’s accounting, as discussed below.

III. Conclusions of Law: Proof of Damages by Claim

Despite the entry of default, a final default judgment cannot be entered in the

absence of proof of damages. “Once a default is entered against a defendant, that party

is deemed to have admitted all of the well pleaded allegations in the complaint, except

those relating to damages.” Microsoft Corp. v. McGee, 490 F. Supp. 2d 874, 878 (S.D.

Ohio 2007) (citing Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995)).37 In

37Only “well pleaded” factual allegations from the complaint are admitted. At times, and notwithstanding the

entry of default, Plaintiff’s presentation of evidence seemed to focus as much on the elements of the claim

asserted as on damages. That is somewhat understandable to the extent that some damages necessarily

depended on overlapping proof of the underlying claim. When the proof at trial contradicted the factual

addition to its duty to prove damages, Calloway may not obtain a duplicate recovery even

if the same damages are recoverable under multiple theories. It is also worth noting that

Calloway did not assert all claims for damages against both Defendants.38 (See PX33

(breaking down damages sought against Burer versus damages sought against both

Defendants)).

A. Deceptive Trade Practices Under Ohio Law

Calloway seeks relief for Burer and 1 Call Away’s deceptive trade practices under

Ohio R.C. § 4165.01 et seq. (See Doc. 1, Counts 1 & 2). Burer and 1 Call Away engaged

in deceptive trade practices when Burer answered misdirected telephone calls through

September 13, 2021, referred some potential customers to competitors, deliberately

chose a business name that evoked Calloway’s trademark, and knowingly used

Calloway’s imagery on 1 Call Away’s website. See O.R.C. §§4165.02(A)(1)-(3) and (10).39

However, Calloway failed to prove any monetary damages relating to this claim apart from

diverted business opportunities from the Fox and Shriver jobs in September and October

2021, totaling $5,691.55.

Calloway submitted no documentary evidence or testimony that it suffered a loss

of good will or reputational damage. Although Calloway rightfully complained about

allegations of the complaint (for example, concerning the value of equipment taken or the amount of gift

cards), the Court accepted the proof of damages offered at trial.

38In the Memorandum Opinion and Order granting in part Plaintiff’s motion for additional sanctions against

Defendant Burer, the Court previously stated that “[w]ith the additional entry of default against Defendant

Burer concerning his underlying liability, the only issue remaining is damages. Once that issue has been

resolved, the Court will enter a final default judgment against both Defendants, who remain jointly and

severally liable on all claims asserted.” (Doc. 59 at 8, PageID 781 (emphasis added)). In hindsight, the

Court regrets its ambiguous phrasing. Even in its initial complaint, Plaintiff did not assert joint and several

liability for all claims against both Defendants. At trial, Plaintiff clearly asserted joint liability only as to two

of its damage claims. (See PX33, asserting joint liability only for lost profits and diverted business

opportunities).

39Calloway’s complaint alleges that Burer misappropriated Calloway’s customer lists and other confidential

and proprietary information, as well as trade secrets. However, Calloway presented no evidence of damage

from the alleged use of any such customer lists or similar proprietary information.

Defendants’ failure to produce all relevant business records, Calloway had access to its

own profit and loss statements, tax records, and other business records that it could have

used to show any damages sustained immediately after Burer’s departure. Calloway also

presented no evidence of how often the 1 Call Away website was viewed by potential

customers (if at all), or whether Calloway maintained its own website.40 Regarding the

phone call leads through September 13, Calloway presented no evidence on: (1) the total

number of calls/prospective leads; (2) the average size of requested jobs or expected

profit margin; or (3) what percentage of calls for estimates (leads) translate to contracted

work. In the absence of any evidence to suggest any loss at all, much less evidence that

could quantify that loss, Calloway’s evidence of damages was entirely speculative

(beyond the misdirected Fox job and abandoned Shriver job). In sum, Calloway has

proved its entitlement only to $5,691.55 in compensatory damages on the Ohio deceptive

practices claim. Although Calloway also seeks punitive damages and attorney fees for

this claim, the Court finds neither award to be appropriate, for the same reasons that it

concludes those damages to be inappropriate under the Lanham Act.

B. Lanham Act Claims

Primarily based on the infringement of its trademark and misuse of its imagery,

Calloway seeks injunctive relief and damages under the Lanham Act. (See Counts 3 and

4). Under 15 U.S.C. §1117(a), a plaintiff who establishes a Lanham Act violation that is

likely to cause confusion, or that is likely to deceive “shall be entitled, subject to the

provisions of sections 1111 and 1114 of this title, and subject to the principles of equity,

to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the

40Calloway’s witnesses testified that the bulk of its advertising was through print media and televised

commercials.

costs of the action.” Id.; see also 15 U.S.C. § 1125(a). In addition to seeking relief for

violations of 15 U.S.C. § 1125(a), Calloway alleges that Burer’s infringement was “likely

to cause dilution by blurring or by tarnishment” of Calloway’s mark. (See Doc. 1 at ¶¶ 56,

63, citing 15 U.S.C. § 1125(c)(1)).

1. Recovery of Profits or other Damages

In Max Rack, Inc. v. Core Health & Fitness, LLC, 40 F.4th 454 (6th Cir. 2022), reh'g

denied, No. 20-3598, 2022 WL 3237492 (6th Cir. Aug. 10, 2022), the Sixth Circuit

discussed the type of profits or other damages that are recoverable under the Lanham

Act:

A trademark owner might seek to recover profits that it has lost because a

competitor used an infringing mark to poach sales to customers. See

Balance Dynamics, 204 F.3d at 690-91; 5 McCarthy, supra, § 30:79. If a

holdover licensee continues to use a mark, the trademark owner might also

seek the royalties that it would have earned on the licensee's illicit sales

under the licensing agreement. See La Quinta, 603 F.3d at 341 & n.10; 5

McCarthy, supra, § 30:86. Apart from these “lost profits,” a trademark owner

might further seek to recover for the “lost goodwill” that arose when

consumers bought the infringer's inferior product and soured on the owner's

brand as a result. Balance Dynamics, 204 F.3d at 690–91. Or a trademark

owner might seek to recover the “damage control costs” that it incurred to

reduce the harm from the infringer's conduct - say, by spending money on

advertisements clarifying that the owner has no affiliation with the infringer.

See id. at 691-92.

Id., 40 F.4th at 475.

Once again, Calloway presented no clear evidence of any actual injuries that it

suffered based on the Lanham Act violations beyond the $5691.55 in diverted business

opportunities already awarded based on proof of deceptive trade practices under Ohio

law. “[D]amages are not permitted which are remote and speculative in nature.” Broan

Mfg. Co., Inc. v. Associated Distributors, Inc., 923 F.2d 1232, 1235 (6th Cir. 1991)

(internal quotation marks and citation omitted). As explained, the evidence regarding

Defendants’ “profits” was generally unconvincing for multiple reasons, including the lack

of any wrongdoing by either Defendant during the period for which the alleged “profits”

were sought (February 2022 through March 2023).

In any event, an accounting of profits under the Lanham Act is an equitable award,

not an award of right. La Bamba Licensing, LLC v. La Bamba Authentic Mexican Cuisine,

Inc., 75 F.4th 607, 611 (6th Cir. 2023). “[A]s an initial matter, ‘a plaintiff likely must show

some connection between the identified ‘sales’ and the alleged infringement.’” House v.

Player’s Dugout, Inc., No. 22-5843, 2024 WL 495998, at *7 (6th Cir. Feb. 8, 2024) (quoting

Max Rack, 40 F.4th at 472). Here, Calloway’s failure to demonstrate actual confusion

between its mark and 1 Call Away’s name and brief use of Calloway imagery from 1

Calloway’s website serves as a further basis to deny lost profits.41 “Before awarding

‘marketplace’ damages like lost profits,… courts generally require a plaintiff to show that

an infringing mark has actually confused some consumers about the mark's affiliation with

the [plaintiff]… (not just that it is likely to do so).” Max Rack, Inc., 40 F.4th at 375

(emphasis original, additional citations omitted).

Despite Calloway’s inability to recover lost profits for Defendants’ trademark

violations, the Lanham Act does offer the possibility of statutory damages. See Microsoft

Corp. v. McGee, 490 F.Supp.2d at 882 (holding statutory damages are appropriate in

cases involving default where the information needed to prove actual damages is within

the infringers’ control and is not disclosed, collecting cases). Here, Burer failed to produce

some key records but not all of the information required to prove Calloway’s damages

was within Burer’s control. See infra, at 15 n.24 and at 20-21. Still, it is undisputed that

41For similar reasons, Calloway is not entitled to treble damages.

Burer attempted to unfairly jump-start his competing business by choosing a name

reminiscent of Calloway’s slogan, and by using Calloway’s imagery on his website.

Considering the evidence and equities presented, the Court finds an additional statutory

award of $10,000.00 to be appropriate compensation for the Lanham Act violations.

2. Punitive Damages

Calloway also seeks punitive damages for Burer’s deceptive practices and

Lanham Act violations. However, punitive damages are not available under either the

Lanham Act or the Ohio Deceptive Trade Practices Act. See La Quinta Corp. v. Heartland

Properties LLC, 603 F.3d at 342; Kremer v. Reddit, Inc., No. 2:21-CV-00038, 2022 WL

4241273, at *2 (M.D. Tenn. Sept. 14, 2022); Frisch's Restaurant, Inc. v. Elby's Big Boy of

Steubenville, Inc., 661 F.Supp. 971, 992 (S.D. Ohio 1987).

3. Attorney Fees Under Lanham Act

Finally, Calloway seeks its attorney fees as “costs.” The Lanham Act permits an

award of attorney fees, but only in “exceptional cases.” 15 U.S.C. § 1117(a). The award

of attorney fees under Ohio’s Deceptive Trade Practices Act is also discretionary. See

Ohio R.C. § 4165.03 (“An award of attorney’s fees may be assessed against a defendant

if the court finds that the defendant has willfully engaged in a trade practice listed in

division (A) of section 4165.02 of the Revised Code knowing it to be deceptive.”).

Notwithstanding Burer’s intentional and wrongful conduct in answering the diverted phone

calls and establishing 1 Call Away, the Court declines to award attorney fees.

The Supreme Court has defined an “exceptional” Lanham Act case as “one that

stands out from others with respect to the substantive strength of a party's litigating

position (considering both the governing law and the facts of the case) or the

unreasonable manner in which the case was litigated.” Octane Fitness, LLC, 134 S.Ct. at

1756, 572 U.S. at 554. In Max Rack, Inc., LLC, 40 F.4th at 478, the Sixth Circuit similarly

considered what might qualify as an “exceptional” case under the Lanham Act:

The plaintiff might have an unusually strong (or unusually weak) case on

the merits. Blatant trademark infringement might justify an award for the

plaintiff, whereas a frivolous infringement claim might justify one for the

defendant. Or the losing party might have litigated the case in an

unreasonable manner - for example, by requesting costly discovery to

coerce a settlement despite the weakness of its claims.

Id., 40 F.4th at 478 (internal citations omitted). “In the end, …the statute leaves it for the

district court to decide under the totality of the circumstances whether the case before it

has the ‘rare’ qualities that distinguish it from a typical case.” Id. (citing Octane Fitness,

LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749, 1756, 572 U.S. 545, 554 (2014).

Sixth Circuit case law emphasizes that there is no “bright-line rule” to guide a trial

court’s evaluation. See La Bamba Licensing, LLC, 75 F.4th at 614. A court must consider

not only a non-exhaustive list of factors, but that each factor may carry different weight

depending on the facts presented. Id., at 610-611 (holding that the trial court erred by

treating the number of factors in favor of fees versus the number of factors in opposition

to a fee award as “a math problem”). Considering the totality of the circumstances here,

the Court finds nothing “exceptional” sufficient to support an award of attorney fees.

No doubt Calloway will protest. After all, this Court has previously ruled that

Defendants’ conduct during the discovery process was reprehensible and in bad faith –

one factor that could support such an award. But the Court declines to punish the

Defendants twice for the same conduct. In prior orders, the Court already punished

Defendants by awarding attorney fees totaling $19,001 and entering a default against

both Defendants. (See Doc. 41 (awarding $10,216.00 in fees), and Doc. 59, p. 10 at

PageID 783 (awarding an additional $8,785 in fees)). The Court also dismissed Burer’s

counterclaims and entered adverse evidentiary rulings. Id. And the Court refused to

reopen discovery or move the trial date for prospective new counsel, causing Burer to

proceed pro se at trial - to his clear disadvantage.

Another factor the Court considers is the strength of Calloway’s trademark claims.

A comparison of the marks reveals enough similarity between “Calloway Cleaning &

Restoration, Help is just a call-o-way” and “1 Call Away” to suggest some possibility of

confusion. But Calloway’s trademark consists of solely of a “word mark” or design using

the following words: “CALLOWAY CLEANING & RESTORATION HELP IS JUST A CALL-

O-WAY.” As stated on the trademark registration:

Color is not claimed as a feature of the mark. The mark consists of the literal

element “CALLOWAY CLEANING & RESTORATION HELP IS JUST A

CALL-O-WAY,” with an inverted swoosh in between the wording “HELP IS

JUST A CALL-O-WAY,” AND “CALLOWAY CLEANING &

RESTORATION”.

(PX 1). On the visual depiction of the mark on Calloway’s trademark application, the words

“Help is just a call-o-way” appear in much smaller font size just above the “swoosh,” in

stark contrast to the much larger font and capitalized CALLOWAY company name.

Despite the similarity of the name “1 Call Away Restoration” to the tagline portion

of Calloway’s mark, Calloway’s trademark claim is not unusually strong. Calloway offered

testimony about Calloway’s consistent use of its design/word mark. The main evidence

of Burer’s infringement (besides the similarity of name) was an archival view of the

website of “1 Call Away Restoration” dated November 24, 2021. But on that website, the

font, text and design of “1 Call Away Restoration” is quite distinctive, with the word “ONE”

spelled out and a “1” placed inside the “O.” The lettering of “One [1] Call Away” is arranged

in a blue square with no “swoosh,” in a manner that is readily distinguishable from

Calloway’s trademark in multiple ways. (PX 17). Calloway offered no evidence that Burer

advertised 1 Call Away beyond the brief existence of a website and Burer’s single

Facebook post. Calloway’s witnesses testified that, in contrast, Calloway spends more

than $200,000 per year displaying its distinctive word mark in print media such as Reach

magazine, television commercials, and sponsorship of public events. The takeaway is

that Calloway operated as the giant Goliath in the advertising market. But unlike Goliath’s

biblical foe, 1 Call Away wielded no powerful slingshot. Instead, 1 Call Away was a blip

of an upstart that does not appear to have advertised its name to the public in any

meaningful way. Therefore, this factor does not favor an award of fees.

The main factor that favors an award of fees is Burer’s “willfulness” and/or intent

to deceive. In La Bamba, the court instructed that “willfulness” bears on the “intent to

deceive” factor and perhaps on the factor of the “public interest in making the misconduct

unprofitable.” Id., 75 F.4th at 611. In addition to continuing to answer diverted calls from

Calloway’s emergency line for nearly three weeks, Burer selected a business name

evocative of Calloway’s slogan. But “willfulness” in the context of a Lanham Act violation

also considers whether the infringement continued after the violator was put on notice of

the infringement. Here, Burer did not persist in the alleged infringing conduct after

receiving the cease-and-desist letter, but immediately took down the website and took

prompt affirmative steps to rename and rebrand his competing business in a manner that

did not infringe upon Calloway’s mark. Contrast Coach v. Goodfellow, 717 F.3d 498, 505-

06 (6th Cir. 2013) (defendant who did not challenge his liability exhibited “willful blindness”

when he allowed vendors at flea market to continue selling counterfeit products long after

receiving notice of the infringement); accord La Bamba, supra (restaurant owner elected

to wait more than a year and a half after receiving a cease-and-desist letter before

changing the infringing name).

The timing of Calloway’s cease-and-desist letter to Burer and 1 Call Away also

weighs slightly against the award of fees. Calloway became aware of Burer’s deceptive

practices and potential infringement within a couple of weeks of his departure. Though a

small business, Calloway was sophisticated and well-established, spending in excess of

$200,000.00 per year on advertising and marketing. Despite that sophistication, Calloway

did not present evidence that it routinely displayed its mark with the letter R enclosed with

a circle or any other obvious notice of registration. See 15 U.S.C. § 1111. In other words,

Burer does not appear to have had actual notice that Calloway had registered its

trademark prior to the cease-and-desist letter. See id. (“[I]n any suit for infringement under

this chapter by such a registrant failing to give such notice of registration, no profits and

no damages shall be recovered under the provisions of this chapter unless the defendant

had actual notice of the registration.”). During the period of infringement, Calloway quickly

marshaled legal counsel to defend against Burer’s claims for unpaid wages and to

challenge his claim for unemployment benefits. Yet Calloway waited months before it sent

the cease-and-desist letter that alerted Burer to its position that his new business name

and website infringed upon Calloway’s mark.42

The Sixth Circuit has rejected the notion that fees must be automatically awarded

solely on the basis of the intent to deceive or any other factor. See La Bamba Licensing,

42Ms. Calloway offered evidence of a FB Messenger text on November 4, 2021, a date by which time the

misdirected calls had been redirected back to Calloway. In context, the Court interprets that text as focusing

on Burer’s solicitation of Calloway’s prior customers, the only identified one of which was BMS Cat, as

opposed to any Lanham Act violations.

LLC, 75 F.4th at 614. Of course, there is a public interest in making Burer’s conduct and

brief period of “palming off” unprofitable. But on the record presented, there was little to

no evidence that Burer made any profit from his deceptive trade practices and Lanham

Act violations between August 27, 2021 and January 31, 2022.43 And many factors –

including but not limited to Ms. Calloway’s often inconsistent and vague testimony, the

differences between Calloway’s mark and the manner in which 1 Call Away displayed its

name, as well as the lack of evidence of any actual damage to Calloway – all weigh

against an award of fees under the Lanham Act.

C. Tortious Interference Claims Under Ohio Law

In Count 5, Calloway seeks compensatory and punitive damages based on Burer

and 1 Call Away’s tortious interference with Calloway’s contractual and/or business

relationships. The proof on this claim included: (1) the Fox and Shriver jobs; (2) false

statements made during the brief period of misdirected phone calls about Calloway’s

ability to perform certain work; and (3) the November Facebook post disparaging

Calloway’s work. For the reasons stated, Calloway failed to prove damages beyond the

lost opportunity damages for the Fox and Shriver jobs.

As for punitive damages on this claim, at least one Ohio court has held that it would

be improper to award punitive damages for tortious interference with a contract or

business relationship. Becker Equip., Inc. v. Flynn, 2004-Ohio-1190, ¶ 15, 2004 WL

486219, at *3 (Ohio App. 12 Dist. March 15, 2004) (holding that Ohio does not permit an

award of punitive damages or attorney fees for tortious interference with a contract or

43The nature of the misdirected phone calls (some of which Burer referred to competitors) suggested little

profit to Burer even assuming that Burer successfully bid on any jobs. There was no evidence that any

prospective customer to whom Burer provided a bid proceeded to hire 1 Call Away based on any confusion

by or similarity of 1 Call Away’s name to Calloway’s trademark.

business relationship); but see Von Stein v. Phenicie, 2014 -Ohio- 4872, ¶ 66, 2014 WL

5510473, at *16 (Ohio App. 3 Dist., 2014) (affirming award of punitive damages based on

malicious conduct that occurred during tortious interference, without discussion of the

propriety of such damages for those claims). Even if Ohio law could support a punitive

award for tortious interference, the Court exercises its discretion not to make such an

award here. See also, generally, Becker Equip., 2004-Ohio-1190, ¶12 (declining to award

punitive damages or attorney fees for alleged misappropriation of trade secrets where

plaintiff sustained little or no damage as a result of the alleged misconduct).

D. Conversion of Calloway Property

In Count 6, Calloway seeks compensatory damages for Burer’s alleged conversion

of “approximately $54,899 of cleaning and restoration equipment and $3,000 in gift

cards.” (Doc. 1, ¶75). Based on the Court’s Findings of Fact, Calloway is entitled to

recover compensatory damages on its conversion claim in the sum of $15,122.64,

representing the value of the gift cards ($1,500.00) and the Iowa furniture ($4,036.15),

and the replacement value of equipment taken on August 27, 2021 ($9,586.49). Although

Calloway also seeks punitive damages on this claim, the Court concludes that Calloway’s

evidence on its conversion claims falls short of the clear and convincing evidence of

malice and bad faith required to support such an award under Ohio law.

E. Defamation

In Count 7, Calloway seeks both compensatory and punitive damages, as well as

attorney fees, for defamation based in part on the November 10, 2021 Facebook post.44

44Plaintiff also more generally alleges in its complaint that Defendants defamed Calloway when they

“contacted Calloway’s largest customers and …disparaged Calloway to those customers.” (Doc. 1, ¶82).

However, no evidence was presented to support damages in connection with this vague allegation.

The FB post constitutes business defamation per se under Ohio law. Though not

specifically alleged in the complaint, Calloway also proved at trial that Burer verbally

slandered or defamed Calloway in statements to prospective customers during at least

two diverted telephone calls. Burer made the false statements with actual knowledge of

their falsity or with reckless disregard of their probable falsity – in short, the Court finds

“actual malice.”45 When defamation is per se and the defendant made the statement with

knowledge of its falsity, “[p]roof of the defamation itself establishe[s] the existence of

some damages.” Gosden v. Louis, 116 Ohio App.3d 195, 208, 687 N.E.2d 481, 489 (9th

Dist.1996) (additional citations omitted).

Still, the amount of damages remains difficult to ascertain based on the evidence

presented. There was little evidence that any potential Calloway customer saw the FB

post but for Burer’s own testimony that he received 4-5 calls about the post. Calloway

offered no evidence concerning any impact on its reputation, suggesting such impact was

nominal at most. Considering some level of “presumed” compensatory damages for

defamation per se under Ohio law, the Court awards $10,000 to compensate Calloway

for this claim.

In addition, and in contrast to other claims for which Calloway seeks punitive

damages, the Court finds sufficient proof to award punitive damages. Punitive damages

are always discretionary; they may be awarded under Ohio law for tort actions that involve

fraud, actual malice, or insult. See Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174,

45When the defamed party is a private figure in a matter of public concern, proof of defamation requires

only negligence, not actual malice in publication. See Gibson Bros., Inc. v. Oberlin College, 187 N.E.3d

629, 653, 2022 -Ohio- 1079, ¶ 85 (Ohio App. 9 Dist., 2022). On the record presented, the Court finds that

Defendant Burer published the FB post with actual malice.

1175 (1987). The purpose of punitive damages is not to compensate Calloway as Plaintiff,

but to punish Defendants and to deter them and others from committing similar acts in

the future. See Brandt v. Pompa, 220 N.E.3d 703, 716, 171 Ohio St.3d 693, 706 (Ohio

2022). In order to recover under Ohio law, Calloway generally must prove both that Burer

acted with “malice” and some level of compensatory damages. Ohio R.C. 2315.21(C).

Calloway also must establish its entitlement to punitive damages by clear and convincing

proof. R.C. § 2315.21(D)(4). Here, Calloway has produced clear and convincing evidence

of actual malice based on Burer’s conduct in committing the tort of defamation.46 But even

when a plaintiff is entitled to punitive damages, Ohio caps such awards at a maximum of

two times the amount of compensatory damages. See Ohio R. C. § 2315.21(D)(2)(a) and

(b) (capping punitive damages against an individual at the lesser of two times the amount

of compensatory damages or ten percent of the individual’s net worth when the tort was

committed). In light of the compensatory damage award of $10,000, the Court finds the

sum of $20,000 in punitive damages to represent just and fair punishment.47

Finally, the Court considers the issue of attorney fees for the defamation claim. In

Cruz v. English Nanny & Governess School, 207 N.E.3d 742, 749, 169 Ohio St.3d 716,

724 (2022), the Ohio Supreme Court confirmed that Ohio adheres to the “the ‘American

rule’ with respect to recovery of attorney fees: a prevailing party in a civil action may not

recover attorney fees as a part of the costs of litigation.” Only three exceptions apply: “(1)

when a statute creates a duty to pay attorney fees, (2) when the losing party acted in bad

46Calloway suggested that all of Burer’s tortious conduct was motivated by actual malice, or a spirit of

revenge against his former paramour and the business she owned, based on Ms. Calloway’s refusal to give

Burer an ownership interest. However, the Court does not find clear and convincing evidence of “actual

malice” for any claim other than defamation.

47In the absence of contrary evidence, the Court assumes that this sum is not more than 10% of Burer’s

total net worth.

faith, and (3) when the parties contracted to shift the fees.” Id. (citation omitted). Here,

Plaintiff seeks fees for defamation under the second exception. With respect to that

exception, Ohio common law has long permitted juries “to include reasonable attorney

fees as part of compensatory damages when the jury also awards exemplary or punitive

damages.” Cruz, 207 N.E.3d at 750, 169 Ohio St.3d at 724 (emphasis added).

The exception does not mean that the award of attorney fees is automatic in every

case in which punitive damages have been awarded. After all, the two types of damages

serve distinct purposes. See Neal-Pettit v. Lahman, 125 Ohio St.3d 327, 2010-Ohio-1829,

928 N.E.2d 421, ¶ 14. Punitive damages focus on punishing the tortfeasor rather than on

compensating the prevailing party, while attorney fees are intended primarily to

compensate the prevailing party in cases that justify shifting fees. Here, however, Burer’s

actual malice in committing the tort of defamation is sufficient here to support an award

of attorney fees as additional compensatory damages.

[M]alice is the gateway to punitive damages in a tort case. In turn, a punitive

damages award opens the door to attorney's fees.

Chapel v. Wheeler Growth Co., 2023-Ohio-3988, ¶ 18, ___ N.E.3d ___, 2023 WL

7269268, at *5 (Ohio App. 1 Dist., Nov. 3, 2023). Calloway proved by clear and convincing

evidence that Burer acted in bad faith and with actual malice when he made

misrepresentations about Calloway during at least two diverted telephone calls prior to

September 13, 2021, and further defamed Calloway in his November 10, 2021 Facebook

post.

The calculation of a “reasonable” compensatory attorney fee to reimburse

Calloway for prosecution of the defamation claim begins with a review of Calloway’s billing

records.

The most useful starting point for determining the amount of a reasonable

fee is the number of hours reasonably expended on the litigation multiplied

by a reasonable hourly rate. This calculation provides an objective basis on

which to make an initial estimate of the value of a lawyer's services.

Hensley v. Eckerhart, 103 S.Ct. 1933, 1939, 461 U.S. 424, 433 (1983). Like the federal

courts, Ohio uses the same formula, commonly referred to as the “lodestar,” as a starting

point for calculating a reasonable fee. See Phoenix Lighting Group, L.L.C. v. Genlyte

Thomas Group, L.L.C., 153 N.E.3d 30, 33, 160 Ohio St.3d 32, 33 (2020); Bittner v. Tri-

Cnty. Toyota, Inc., 569 N.E.2d 464, 466, 58 Ohio St.3d 143, 145 (1991).

On February 12, 2024, Calloway submitted 14 pages of detailed billing records in

connection with a separately-filed motion for attorney fees and expenses under Rule

54(d)(2), Fed. R. Civ. P. Those records reflect that six different attorneys billed at different

rates for their time in this case, including two Partners, a Managing Associate and three

Associates. The Court has examined the hourly billing rates of each attorney, and finds

those rates to fairly present the prevailing rates in the Greater Cincinnati area.

The fees billed between November 23, 2021 (prior to the filing of the January 7,

2022 complaint) and February 8, 2024 (Calloway’s post-trial motions) total $178,793.50.

However, that total includes all time spent on all claims, including the fees that this Court

previously awarded as sanctions for Defendants’ pretrial misconduct. Plaintiff’s complaint

enumerates roughly a dozen separate “Counts.” Even when duplicate causes of action

are eliminated, the complaint sets forth eight separate claims: 1) Deceptive trade

practices under Ohio law, (2) Trademark infringement under the Lanham Act, (3) Tortious

interference with contractual and business relationships under Ohio law, (4) Conversion,

(5) Defamation, (6) Breach of Fiduciary duty, (7) Misappropriation of confidential, trade

secret, & proprietary information, and (8) Civil Conspiracy. (See Doc. 65 at PageID 802

(summarizing causes of action)). In order to appropriately limit Calloway’s recovery of

fees to the single claim of defamation, the Court must ascertain the fees incurred for the

prosecution of that claim, without unjustly awarding fees for the other seven claims to the

extent those claims are separable.

To accomplish this, the Court considers the extent to which the defamation claim

shared a common core of facts with Calloway’s many other claims. The Court also

considers how similar or dissimilar the legal elements of a claim of defamation is from

Calloway’s other legal theories of recovery. And the Court considers the overall results

obtained, insofar as the compensatory damages on the defamation claim are just

$10,000.00, as compared to larger compensatory damages on other claims, including

$12,180.34 for breach of fiduciary duty, $15,122.64 for conversion of property, and

$15,691.55 for Deceptive Trade Practices and Lanham Act violations.48

Both factually and legally, the defamation claim was distinct. Defamation is a

relatively simple legal claim under Ohio law, and the evidence of such was easily

presented without the need for significant discovery. In comparison to many claims that

spanned a much broader time frame (from September 2020 through Calloway’s analysis

of “profits” through March 2023), the defamation claim spanned a narrow time frame. The

November 10, 2021 FB post was the primary defamatory statement alleged and was used

exclusively to support the defamation claim. At trial, Calloway proved that Burer also

defamed Calloway during at least two diverted telephone calls (September 9 and

48In fashioning the appropriate fee that reasonably compensates Calloway for “reasonable” fees expended

in pursuit of the defamation claim, this Court emphasizes that it makes no reduction based solely on

“proportionality.” Ohio courts generally do not consider “fee proportionality” unless a fee is so high that it

“shocks the conscience.” Chapel v. Wheeler Growth Co., 2023-Ohio-3988, ¶ 26, ___ N.E.3d___, 2023 WL

7269268, at *7 (Ohio App. 1 Dist., 2023) (quoting Bittner, 58 Ohio St. 3d at 146). And the Ohio legislature

has clearly stated that any award of attorney’s fees is not subject to the cap on punitive damages. Ohio

R.C. § 2315.21(D)(1)(c).

September 13, 2021) when he made statements disparaging Calloway’s ability to perform

the requested work while referring the callers to competitors. True, the diverted calls

provided support for other claims (particularly deceptive practices), but the defamatory

statements appeared to be limited to just two calls. Calloway required no discovery from

Burer concerning those calls since the recordings were produced from its internal phone

system. Similarly, Calloway obtained a copy of the single defamatory FB post (which was

not disputed) without Burer’s assistance in discovery.

Counsel’s billing entries reflect a significant amount of research and writing

devoted to many unrelated issues and claims.49 There appears to have been little overlap

of the elements of the defamation claim with any other legal theory presented. “Where,

as here, the claims can be separated into a claim for which fees are recoverable and

[claims] for which no fees are recoverable, the trial court must award fees only for the

amount of time spent pursuing the claim for which fees may be awarded.” Bittner v. Tri-

Cnty. Toyota, Inc., 569 N.E.2d at 466-67, 58 Ohio St.3d at 145 (additional citation

omitted).

“In determining the appropriate attorney's fees award, Ohio courts, like federal

district courts, “are not required to act as ‘green-eyeshade accountants’ and ‘achieve

auditing perfection’ but instead must simply [ ] do ‘rough justice.’” Chapel v. Wheeler

Growth Co., 2023-Ohio-3988, ¶ 20, ___ N.E.3d ___, 2023 WL 7269268, at *5 (Ohio App.

1 Dist., 2023) (quoting Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d

686 (6th Cir. 2016) (additional citations omitted)). Considering the total fees of

$178,793.50, the Court will subtract the $19,001.00 in attorney fees previously awarded

49Very few billing entries reference “defamation,” the phone calls or the FB post.

to avoid a double-recovery. (See Docs. 41, 59).50 That leaves total attorney fees of

$159,792.50.

Above, the Court has considered factors that suggest a significant reduction in the

total fees billed is necessary and appropriate. But the Court also considers that no case

is litigated piecemeal or “claim-by-claim.” The fact that the defamation claim was relatively

distinct cannot eliminate the reality that there was some evidentiary overlap with other

claims. Nor does this Court ignore the unavoidable costs incurred in bringing any case to

trial, many of which costs bear little relationship to the number of claims presented.

Considering the record as a whole, therefore, the Court awards 35% of Calloway’s

litigation costs of $159,792.50, or $55,927.38, as a reasonable attorney fee to

compensate Calloway for its costs in pursuing the defamation claim.

F. Breach of Fiduciary Duty

In Count 8, Calloway seeks damages for breach of fiduciary duty, based on the

alleged overcharges by Burer’s Garage for the maintenance and repair of Calloway

vehicles during Burer’s employment. For the reasons previously discussed, the Court

awards nothing on the claim of $5,000 in overcharges but awards $12,180.34 based on

Burer’s failure to abide by his agreement to offset the Burer Garage bills by an outstanding

bill owed to Calloway by T.B. Properties.51

50For reasons that are not clear from the record, Calloway’s billing records identify the sanctions sum as

$18,933.00 rather than $19,001.00. In its motion for fees, Calloway also offers to subtract $3,850.00 in fees

incurred in defense of Burer’s DOL claim, insofar as Calloway sought the reimbursement of the same fees

as damages in its case-in-chief. Above, the Court denies recovery of the DOL defense fees on the merits.

By awarding only a portion of total fees incurred, the Court has adequately considered the relevant

defamation claim costs in the context of the totality of the litigation.

51No specific allegations concerning the offset appear in Calloway’s complaint, but Count 8 generally

alleges that Burer’s conduct caused Calloway “to spend more on vehicle repair than was necessary.”

G. Misappropriation of Trade Secrets

In Counts 9 and 10, Calloway seeks relief for misappropriation of trade secrets

under state and federal law. See O.R.C. §§ 1333.62 and 1333.63 (Ohio Uniform Trade

Secrets Act) and 18 U.S.C. § 1836(b)(3)(A) (federal Defend Trade Secrets Act). In its

complaint, Calloway specifically alleges that, during his employment as GM, Burer

obtained Calloway’s customer database, pricing structure and financial information used

to quote projects to customers and to target actual repeat and potential customers.

Calloway maintains that all of that data is confidential and proprietary information and

constitutes trade secrets. But Calloway presented no evidence about Burer’s use of the

said database, pricing structure, customer lists, or other financial information, or of

Calloway’s damages.52 Given that lack of evidence, in combination with the lack of a

confidentiality, non-compete, or non-solicitation agreement that prohibited Burer from

contacting former customers with whom he was familiar, Calloway is not entitled to

recover for these claims.

H. Civil Conspiracy

In Count 11 of its complaint, Calloway alleges that Burer and 1 Call Away acted

with malice in a civil conspiracy, through the redirection of phone calls through September

13, 2021, the conversion of stolen equipment, the use of Calloway’s design and

trademark, the misappropriation of Calloway’s imagery on 1 Call Away’s website, the

misappropriation of Calloway’s customer lists and trade secrets, and the disparagement

52The only relevant evidence appears to refute any premise that Burer used Calloway’s pricing structure to

underbid Calloway. The Court discredited Ms. Calloway’s testimony that Burer interfered with an existing

Calloway contract to perform the final phase of the Embassy Suites job for approximately $40,000. But

even if the Court had believed that testimony, 1 Call Away’s bid for that work was clearly higher, not lower.

BMS Cat ultimately paid $45,000 to 1 Call Away for the work.

of Calloway and its work. As previously discussed, Calloway’s proof of damages was very

limited. In addition, this claim is premised on the allegation that Burer conspired with his

own wholly-owned and operated business. At trial, Burer confirmed that he is the sole

employee of 1 Call Away. Under Ohio law, a corporation cannot conspire with its own

agents or employees. See Cheryl & Co. v. Krueger, 536 F. Supp. 3d 182, 214 (S.D. Ohio

2021) (discussing intra-corporate conspiracy doctrine). The Court therefore finds no

damages owed under this claim.

IV. Conclusions and Order

For the reasons discussed, Calloway is entitled to recover compensatory damages

against Defendant Burer alone on its breach of fiduciary duty claim and for conversion, in

the following sums: $12,180.34 (unpaid restoration bill); $1,500.00 (retained gift

certificates), $4,036.15 (retained Iowa furniture), and $9,586.49 (retained Calloway

dehumidifiers, camera equipment, and moisture meter).

Calloway is entitled to recover against both Defendants for the tort of defamation,

in the amount of $10,000.00 in compensatory damages, $20,000.00 in punitive damages,

and $55,927.38 in attorney fees.

In addition to the joint and several liability of both Defendants for defamation,

Calloway is entitled to recover the sum of $5,691.55 (representing wrongfully diverted

business opportunities) against both Defendants for their deceptive trade practices under

Ohio law. And Calloway is entitled to recover against both Defendants the sum of

$10,000.00 in statutory damages under the Lanham Act.

The Court declines to award prejudgment interest on any of the monetary

damages. Under Ohio law, “[t]he choice to award prejudgment interest on a tortious-

conduct claim is a matter of discretion for the trial court.” Desai v. Franklin, 895 N.E.2d

875, 887-88, 177 Ohio App.3d 679, 696, 2008-Ohio-3957, ¶ 31 (Ohio App. 9 Dist. 2008);

see also R.C. § 1343.03(C). Prejudgment interest under the Lanham Act is similarly within

the discretion of the trial court, and is normally reserved for “exceptional cases.” Wynn Oil

Co. v. American Way Service Corp., No. 94-1294, 1995 WL 431019, at *3 (6th Cir., July

20, 1995) (Table, internal quotation marks and citation omitted); see also Powerhouse

Marks LLC v. Chi Hsin Impex, Inc., 463 F. Supp.2d 733, 740 (E.D. Mich. 2006) (finding

prejudgment interest to be inappropriate in light of plaintiff’s delay in asserting its

trademark rights). By contrast, Calloway is entitled to post-judgment interest from the date

of entry of judgment, to accrue at the current state statutory rate for all damages awarded

under state law, see Ohio R.C. R.C. § 1343.03(B) and R.C. § 5703.47, and at the

corresponding federal statutory rate for separate damages under the Lanham Act. See

28 U.S.C. § 1961.

In addition to the monetary damages awarded, the Court will grant Calloway’s

request for permanent injunctive relief. The bank account in the name of “BB Investment

Properties, LLC DBA 1 Call Away Restoration” appears to be open and active. To ensure

that Burer does not resurrect the name or further infringe upon Calloway’s name and

mark, Burer will be required to alter the name listed on the BB Investment Properties bank

account in order to delete any reference to 1 Call Away. Burer and/or 1 Call Away also

will be permanently enjoined from using the name “1 Call Away” or Calloway’s imagery

for any future business.

Accordingly, IT IS ORDERED:

1. Defendant Burer is individually liable for a total of $27,302.98 in compensatory

damages on the breach of fiduciary duty claim and the conversion claim;

2. Defendant Burer and Defendant 1 Call Away are jointly and severally liable for

$10,000.00 in compensatory damages, $20,000.00 in punitive damages, and

$55,927.38 in attorney fees on the defamation claim.

3. In addition to fees awarded on the defamation claim, Defendants are jointly and

severally liable for $19,001.00 in attorney fees based on prior sanctions

awards;

4. Defendant Burer and Defendant 1 Call Away are jointly and severally liable for

an additional $5,691.55 in damages for their deceptive trade practices under

Ohio law;

5. Defendant Burer and Defendant 1 Call Away are jointly and severally liable for

$10,000.00 in damages under the Lanham Act;

6. Within thirty (30) days of the date of this Order, Defendants shall either close

or alter the name listed on the BB Investment Properties bank account in order

to delete any reference to 1 Call Away. Defendants are further enjoined from

using the name “1 Call Away” or Calloway’s imagery for any future business;

7. Calloway is entitled to post-judgment interest.

s/Stephanie K. Bowman ______

Stephanie K. Bowman

United States Magistrate Judge