United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2020 Decided February 16, 2021

No. 19-7108

JOHN N. XEREAS,

APPELLANT

v.

MARJORIE A. HEISS, ET AL.,

APPELLEES

Consolidated with 19-7111

Appeals from the United States District Court

for the District of Columbia

(No. 1:12-cv-00456)

Brent M. Ahalt argued the cause and filed the briefs for 

appellant.

William T. O’Neil argued the cause and filed the brief for 

appellees.

Before: TATEL, PILLARD and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.
2

WILKINS, Circuit Judge: Appellant John Xereas holds the 

RIOT ACT trademark, a well-known local comedy brand. In 

2010 he entered into a business agreement with Appellees

Geoffrey Dawson and Marjorie Heiss (“Defendants”) to open 

the Riot Act Comedy Club in downtown D.C. After the

relationship soured, Xereas brought suit to recover damages

from Defendants’ alleged breaches of fiduciary duty and of the 

operating agreement of the limited liability company the parties 

formed to start the club, as relevant here. Defendants 

counterclaimed, and after extensive discovery the parties 

proceeded to jury trial in 2018. 

Xereas challenges the District Court’s dismissal of his 

claim for breach of the Defendants’ fiduciary duties of loyalty 

and care on the pleadings, as well as a number of pretrial and 

trial errors. Defendants cross-appealed and challenge the 

District Court’s denial of their final motion for judgment as a 

matter of law and request for attorney’s fees. We reverse the 

District Court’s dismissal of Xereas’s breach of fiduciary duty 

claim. We affirm the District Court’s rulings in all other 

respects.

I.

A. 

Xereas conceived the name “RIOT ACT” during his multidecade career in the D.C.-area comedy scene. He registered 

RIOT ACT-related domain names in 2005 and did business as 

RIOT ACT Entertainment LLC through 2012, booking comics

and producing and promoting events at local venues including 

Lisner Auditorium, The Lincoln Theater, 9:30 Club, and DAR 

Constitution Hall. Xereas obtained a trademark for RIOT ACT 

in September 2012, with a first use date of September 2005.
3

After his successful first club closed, Xereas met and 

agreed to go into business with Defendants Geoffrey Dawson

and Marjorie Heiss. The parties hoped to leverage Xereas’s 

experience running a comedy club and Defendant Dawson’s 

capital and connections as a successful bar and restaurant 

owner. Defendant Heiss, the longstanding in-house counsel to 

Dawson’s management company, joined the partnership as the 

LLC’s attorney. The parties gave conflicting testimony at trial 

about their discussions regarding the use of the RIOT ACT

trademark: Xereas says he told Defendants from the start that 

he would retain ownership and rights to the trademark, but 

would license it to the LLC and only charge a fee once the 

business began to make money. Defendants testified that 

Xereas agreed to contribute the RIOT ACT trademark to the 

LLC and that he never informed them that he expected the 

business to pay him a licensing fee.

In any event, no licensing agreement for the RIOT ACT 

mark was executed. The parties eventually leased a large event 

space in downtown D.C. zoned for a theater and arts venue and 

began renovations. Defendant Heiss registered their company 

as Riot Act DC, LLC and the parties executed an operating 

agreement in May 2010 and the operative Amended Operating 

Agreement (“the operating agreement”) on November 1, 2010. 

Each party held a 33.33% stake in the LLC.

Xereas, Heiss, and Dawson were the sole MemberManagers of the LLC. The operating agreement gave the 

managing members “full and exclusive power and authority on 

behalf of the Company to manage, control, administer[,] and 

operate the business and affairs of the Company.” Amended 

Operating Agreement, Art. VI § 6.1(a); see also id. Art. V § 

5.10. In other words, all management decisions were 

controlled by a two-thirds vote of the Member-Managers. The 

operating agreement also provided that “[a]ny consideration to 
4

be paid as salaries by the Company to the Managing Members 

shall be determined by the Managing Members in their 

reasonable discretion.” Id. Art. VI § 6.4. The operating 

agreement also included a provision selecting the District of 

Columbia as the source of governing law. Id. Art. X § 10.9.

Xereas claims that the parties agreed to pay him $72,000 

per year for his work as General Manager, but later deferred 

payments until the business became profitable. Trial Tr. 

232:5–7. Defendant Dawson acknowledged that “[i]n a perfect 

world, he would have gotten his salary, which we had hoped 

would be $72,000 a year,” but Dawson also testified that 

Xereas’s salary was never guaranteed. Trial Tr. 616:24–

617:16. Other management salaries were being paid, however.

Xereas testified that Defendants paid another employee

$65,000 per year to manage the club, and Defendant Dawson 

testified that the LLC paid a $100,000 management fee to one

of his companies. Trial Tr. 235:13–17; 692:16–25. In the end, 

Xereas received $26,000 in the year and a half between May 

2010, when the LLC was officially formed, and his exit in 

2012.

The Riot Act club opened its doors in August 2011. Not 

long after, the relationship between the parties deteriorated. 

The Defendants voted to fire Xereas’s brother and friend in 

January 2012, and a verbal conflict ensued after which Xereas 

left the premises. Xereas testified that he continued to work for 

the LLC despite Defendants’ vote two days later to remove him

from his day-to-day managerial responsibilities. Defendants 

cut off Xereas’s access to his Riot Act-domain email and 

changed the locks at the club several days later. Defendants 

ultimately voted to remove Xereas as a managing member in 

March 2012, under the operating agreement’s provision for 

removal of a manager for failure to devote time and effort to 

the business necessary to maintain its interests. Amended 
5

Operating Agreement, Art. VI § 6.3. Xereas maintained his 

stake in the LLC, and currently owns a twenty-six percent 

share. After cutting ties with Xereas and executing a quit-claim 

deed to disavow any interest in the RIOT ACT trademark, 

Defendants re-registered as Penn Social, LLC but were unable 

to change the RIOT ACT mark on their liquor and occupancy 

licenses throughout the pendency of this litigation.

B.

Xereas filed the initial Complaint in this action in March 

2012, bringing Lanham Act and related claims under District 

of Columbia law. The District Court exercised jurisdiction 

over Xereas’s trademark infringement and other Lanham Act 

claims pursuant to 15 U.S.C. § 1121 and supplemental 

jurisdiction over the related District of Columbia law claims 

pursuant to 28 U.S.C. § 1367(a). 

Xereas’s Second Amended Complaint (“SAC”) alleged 

twenty-six claims stemming from the parties’ less-thanamicable breakup. Relevant for our purposes, the SAC 

included: a claim for breach of fiduciary duty, Lanham Act and 

common law trademark infringement claims; and interrelated 

contract claims based on the implied covenant of good faith and 

fair dealing, D.C. law, and the operating agreement. The 

Defendants cross-claimed based on the same conduct alleged 

in Xereas’s Complaint, including, as relevant here, a 

conversion claim for a computer purchased by the LLC and 

retained by Xereas.

The case was referred to Magistrate Judge Deborah A. 

Robinson during discovery and referred to her for all purposes 

by the parties’ consent in September 2017. The District Court 

decided the parties’ cross motions for summary judgment and 

allowed Xereas’s above-named claims, except for his claim for 
6

breach of fiduciary duty, and all of Defendants’ cross-claims to 

proceed. The District Court converted Defendants’ motion into 

a Motion to Dismiss for the purpose of deciding Xereas’s 

breach of fiduciary duty claim, and dismissed it under Federal 

Rule of Civil Procedure 12(b)(6).

Magistrate Judge Robinson presided over a seven-day jury 

trial from November 5 to 14, 2018. At trial, the District Court 

conducted voir dire of Xereas’s sole expert witness, allowed 

the expert to testify to unsupported business expenses and a 

company valuation, and ruled his trademark damages 

testimony inadmissible. After the close of Xereas’s evidence, 

Defendants moved for judgment as a matter of law, claiming 

that Xereas presented no evidence proving the damages

element of his breach of contract and trademark infringement

claims. The District Court granted the motion with respect to 

one trademark claim and denied the motion as to the breach of 

contract claims because it held the evidence could allow the 

jury to find that Xereas was not paid the agreed-upon salary. 

Defendants moved again for judgment as a matter of law at the 

close of trial, and the District Court granted the motion as to 

the remaining Lanham Act claims. Only Xereas’s claim for 

breach of the operating agreement went to the jury.

The jury found for Xereas and awarded him $106,000 in 

damages. The jury also found for Defendants on their 

conversion claim and awarded the return of the computer. 

Following trial, Defendants re-moved for judgment as a matter 

of law, to alter or amend Xereas’s damages to the amount 

claimed in his final pretrial statement, and for attorney’s fees 

under the Lanham Act, 15 U.S.C. § 1051 et seq. After 

amending Xereas’s damage award to $45,000 to conform with 

the damages he identified in his pretrial statement as arising 

from the breach of the operating agreement claim, the District 

Court entered judgment for both parties pursuant to the jury 
7

verdict. Defendants’ cross-appeal challenges the District 

Court’s denial of their motion for judgment as a matter of law

on Xereas’s successful breach of contract claim and of their

request for attorney’s fees. The parties timely appealed, and 

we have jurisdiction under 28 U.S.C. § 1291.

II. 

The District Court dismissed Xereas’s claim that 

Defendants owed and breached their fiduciary duties of loyalty 

and care. Mem. Op. 30–31, ECF No. 188 (Oct. 5, 2018). To 

state a claim for breach of fiduciary duty under District of 

Columbia law, a plaintiff must allege facts sufficient to 

establish: (1) the defendant owed plaintiff a fiduciary duty; (2) 

a breach of that duty; and (3) proximate cause and injury to be 

inferred from those facts. See Vicki Bagley Realty, Inc. v. 

Laufer, 482 A.2d 359, 363 (D.C. 1984) (duty and breach); 

Randolph v. ING Life Ins. & Annuity Co., 973 A.2d 702, 709 

(D.C. 2009) (proximate cause and injury). The District Court 

analyzed only the first prong and declined to reach the 

remaining elements after finding it “clear” that a “special 

confidential relationship transcending an ordinary business 

transaction” that would give rise to a fiduciary duty “did not 

take place” between the parties. Mem. Op. 31. Because this 

holding was error, we reverse and remand to the District Court 

for further proceedings.

Xereas also alleges that the District Court erred at trial 

when it improperly excluded evidence relevant to his contract 

claims that survived summary judgment; abused its discretion

by limiting, and ultimately striking, his expert’s testimony; and 

made numerous additional evidentiary rulings at trial that 

violated his substantial rights. Xereas has not shown that we 

should vacate the verdicts based upon any of these evidentiary 

rulings, particularly given the substantial deference we owe the 
8

trial court on such issues. See Sprint/United Mgmt. Co. v. 

Mendelsohn, 552 U.S. 379, 384 (2008). We consider both 

arguments in turn.

A.

We review “de novo the dismissal of a complaint for 

failure to state a claim, accepting [the] plaintiff’s factual 

allegations as true and drawing all reasonable inferences in 

[the] plaintiff’s favor.” Momenian v. Davidson, 878 F.3d 381, 

387 (D.C. Cir. 2017). District of Columbia law governs claims 

arising out of the parties’ operating agreement. D.C. CODE

§ 29-801.06 (2012); see also RESTATEMENT (SECOND) OF 

CONFLICT OF LAWS § 187 (AM. L. INST. 1971); J.A. 1771. 

Xereas grounds his claim for breach of the fiduciary duties of 

loyalty and care in “[section] 29-804.09 of the DC Code and 

DC Common Law.” Second Am. Compl. 93 (Count XXI), 

ECF No. 102 (Aug. 22, 2017). Under either theory, District of 

Columbia law provides that members of a member-managed 

LLC owe each other fiduciary duties of loyalty and care, and 

Xereas adequately alleged that Defendants entered into the Riot 

Act DC, LLC with him.

1

 

We first note that section 29-804.09 applies only to 

Defendants’ conduct beginning January 1, 2012: it was enacted 

in its current form under District of Columbia Official Code 

Title 29 Technical and Harmonizing Amendments Act of 2012, 

D.C. Law 19-210, effective March 5, 2013, but with an 

applicability date of January 1, 2012. See 59 D.C. Reg. 13280 

1 The operating agreement is somewhat unclear as to whether Riot 

Act DC, LLC is organized as a member-managed LLC or a managermanaged LLC, but Xereas urges and Defendants do not contest that 

the LLC is member-managed. See Appellant’s Br. 18 n.2; 

Appellees’ Reply 4, 5, 8 (consistently referring to the LLC’s 

“managing members”).
9

(Nov. 23, 2012); 60 D.C. Reg. 8436 (June 7, 2013); see also 

Office of the General Counsel, Council of the District of 

Columbia Legislative Drafting Manual 41–42 (2019)

(explaining that an applicability date is “different than [a 

provision’s] effective date” and may accelerate or delay 

implementation of new legislation). Because some of 

Defendants’ alleged conduct occurred before January 2012,

and Xereas failed to point us to any statute applicable before 

January 2012 specifying fiduciary duties between members of 

an LLC, we analyze his claim first under the District’s common 

law and second under the statute.

2

Turning to the common law, “[a] fiduciary relationship is 

founded upon trust or confidence reposed by one person in the 

integrity and fidelity of another.” Bolton v. Crowley, Hoge & 

Fein, P.C., 110 A.3d 575, 584 (D.C. 2015) (quoting Gov’t of 

Rwanda v. Rwanda Working Grp., 227 F. Supp. 2d 45, 64 

(D.D.C. 2002), aff’d in part, remanded in part sub nom. Gov’t 

of Rwanda v. Johnson, 409 F.3d 368 (D.C. Cir. 2005)). 

Whether a fiduciary relationship exists is “a fact-intensive 

question, involving a searching inquiry into the nature of the 

relationship, the promises made, the type of services or advice 

given and the legitimate expectations of the parties.” Firestone 

v. Firestone, 76 F.3d 1205, 1211 (D.C. Cir. 1996) (quoting 

Church of Scientology Int’l v. Eli Lilly & Co., 848 F. Supp. 

1018, 1028 (D.D.C. 1994)). District of Columbia courts have 

“addressed the fiduciary duty of loyalty in the corporate and 

partnership context[s],” but not in the specific context of a 

limited liability company. Bolton, 110 A.3d at 581. However, 

Calomiris v. Calomiris, 3 A.3d 1186 (D.C. 2010), suggests that 

2 The common law duties that were allegedly breached overlap with 

the statutory duties that apply to Defendants’ actions after January 

2012, so the distinction does not affect the outcome of our analysis. 
10

an action for breach of fiduciary duty may lie between 

members of an LLC based on their status as members alone. 

In Calomiris, one member of a family-held LLC brought 

claims against the LLC and his siblings for breach of contract 

and breach of fiduciary duty when the LLC refused to 

reimburse him for attorney’s fees sought in connection with an 

earlier action on behalf of the LLC. Id. at 1188–89. The 

operating agreement contained an indemnification clause that 

the claimant argued entitled him to prevail on his breach of 

fiduciary duty claim should the LLC continue to violate the 

indemnification provision by refusing to reimburse him for the 

earlier action. Id. at 1194. Without evaluating the merits of his 

claim, the court ruled that the claimant had pled sufficient facts 

to entitle him to an award of fees under the clause. Id. at 1194–

95. In analyzing the sufficiency of his complaint, the court

noted, “[Claimant] sets forth his two causes of action and 

paragraphs which demonstrate how he satisfies the elements of 

those causes.” Id. at 1195. The court thus allowed the 

claimant’s breach of fiduciary duty claim to continue where it 

alleged an action arising out of the LLC’s operating agreement, 

as Xereas does here. 

While the Calomiris court allowed a well-pleaded claim 

for breach of fiduciary duty by one member of an LLC against 

another to survive a motion to dismiss, we acknowledge that it 

did not directly consider the question whether members of an 

LLC owe each other fiduciary duties by virtue of membership 

alone. Id. Fortunately, Maryland courts have considered a 

closely analogous question and held that “managing members 

of an LLC owe common law fiduciary duties to the LLC and 

to the other members based on principles of agency.” Plank v. 

Cherneski, 231 A.3d 436, 450 (Md. 2020). We look to 

Maryland’s common law because Maryland is “the source of 

the District’s common law and an especially persuasive 
11

authority when the District’s common law is silent.” Napoleon 

v. Heard, 455 A.2d 901, 903 (D.C. 1983); see also Interstate 

Fire & Cas. Co. v. Washington Hosp. Ctr. Corp., 758 F.3d 378, 

383 (D.C. Cir. 2014). The Plank court relied on the Maryland 

Court of Special Appeals’ decision in George Wasserman & 

Janice Wasserman Goldsten Family LLC v. Kay, 14 A.3d 1193, 

1210–11 (Md. Ct. Spec. App. 2011), abrogated on other 

grounds by Plank, 231 A.3d, which held that “fiduciary duties 

are not born of statutory language—the underlying fiduciary 

duties pre-exist the statutes” and “[t]he same holds true in the 

LLC context.” Thus, since at least 2011, “especially persuasive 

authority” supports our reading of Calomiris to suggest that 

Xereas, Dawson, and Heiss, at once members and managers of 

the LLC, owed each other, as well as the LLC and any other 

members, fiduciary duties of loyalty and care. Napoleon, 455 

A.2d at 903.

In his Complaint, Xereas alleged that he entered into the 

original operating agreement with Defendants on May 6, 2010 

and further alleged that “Defendants Dawson and Heiss, by 

virtue of being managers of the LLC at the time most of the 

events that give rise to this Second Amended Complaint 

occurred, were in a fiduciary relationship with Plaintiff who 

was also a manager of the LLC.” Second Am. Compl. ¶¶ 46, 

177. We find these allegations sufficient under Rule 12(b)(6) 

to establish the existence of a fiduciary relationship under D.C. 

common law.

For those events that took place in 2012 and therefore also

covered by the statute, Xereas correctly argues that section 29-

804.09 provides that members of a member-managed LLC owe 

each other duties of loyalty and care, duties typical of a 

fiduciary relationship. See D.C. Code §§ 29-804.09(a)–(c); 

RESTATEMENT (THIRD) OF AGENCY § 8.01 (AM. L. INST. 2006); 

see also Quincy Park Condo. Unit Owners’ Ass’n v. D.C. Bd. 
12

of Zoning Adjustment, 4 A.3d 1283, 1290 (D.C. 2010)

(referring to “the duties of loyalty and care imposed by law on 

a fiduciary”). Defendants urge that the “mere existence of a 

contract generally does not give rise to a fiduciary duty,” and

they collect cases standing for the proposition that only a 

relationship founded on trust and confidence that “transcends a 

normal business transaction” gives rise to a fiduciary 

relationship. Appellees’ Br. 9–10 (internal quotation marks 

omitted). They argue that Xereas “presumed the special 

relationship” and pleaded only actions “entirely within the 

scope of the operating agreement.” Id. at 10 (internal quotation 

marks omitted). Thus, resting on the twin premises that 

fiduciary relationships only arise when parties extend their 

relationship beyond the limits of their contractual obligations

and that the operating agreement is a typical commercial 

relationship, Defendants argue no fiduciary relationship was

established. See id. 

But Defendants’ authority aims to distinguish fiduciary 

relationships from arms-length contracts, not from business 

partnerships that give rise to duties owed by members or 

managers of a limited liability company, and does not alter our 

conclusion that the District of Columbia affords special status 

to the relationship between members of an LLC. See, e.g.,

Firestone, 76 F.3d at 1207 (written agreement providing 

payment guarantees for past-due, court-ordered child support 

and spousal support); Attias v. CareFirst, Inc., 365 F. Supp. 3d 

1, 6 (D.D.C. 2019) (health insurance policies); Ying Qing Lu v. 

Lezell, 919 F. Supp. 2d 1, 6 (D.D.C. 2013) (investor’s escrow 

deposit); Council on Am.-Islamic Relations Action Network, 

Inc. v. Gaubatz, 793 F. Supp. 2d 311, 341–42 (D.D.C. 2011) 

(confidentiality and non-disclosure agreement signed by an 

intern as a condition of employment); Command Consulting

Grp., LLC v. Neuraliq, Inc., 623 F. Supp. 2d 49, 50 (D.D.C. 

2009) (consulting services agreement); Paul v. Judicial Watch, 
13

Inc., 543 F. Supp. 2d 1, 4 (D.D.C. 2008) (legal representation 

agreement). And while it is true that District of Columbia 

courts “have traditionally looked for . . . a special confidential 

relationship that transcends an ordinary business transaction 

and requires each party to act with the interests of the other in 

mind,” Ying Qing Lu, 919 F. Supp. 2d at 6 (internal quotation 

marks omitted), they have also suggested that membership in 

an LLC constitutes one such special relationship, Calomiris, 3 

A.3d at 1195.

In sum, section 29-804.09 imposes duties characteristic of 

a special fiduciary relationship and requires members of an 

LLC to act with the interests of the LLC and other members in 

mind. See D.C. Code § 29-804.09(a) (“A member of a 

member-managed limited liability company owes to the 

company and, subject to § 29-808.01(b), the other members the 

duties of loyalty and care stated in subsections (b) and (c) of 

this section.” (emphases added)); §§ 29-804.09(b)–(c) 

(requiring a member to “[a]ccount to the company,” to 

“[r]efrain from dealing with the company . . . [with] an interest 

adverse to the company,” and to “[r]efrain from . . . grossly 

negligent or reckless conduct, [and] willful or intentional 

misconduct”). And while we acknowledge that subsection (a) 

was amended in 2012 to remove the word “fiduciary” before

“duties of loyalty and care,” compare 58 D.C. Reg. 2065 (Mar. 

11, 2011), with 59 D.C. Reg. 13244, section 29-804.09(i)(5) 

instructs that in a manager-managed LLC, “[a] member shall 

not have any fiduciary duty to the company or to any other 

member solely by reason of being a member.” We therefore 

interpret the deletion of “fiduciary” as part of an effort to omit 

extraneous text, since a reading in which section 29-804.09(a) 

does not impose fiduciary duties upon members in a membermanaged LLC renders subsection (i)(5)surplusage. That is, we 

doubt that the drafters would specify that members in a 

manager-managed LLC do not owe each other fiduciary duties 
14

unless members owe each other such duties in another context. 

See Nielsen v. Preap, — U.S. —, 139 S. Ct. 954, 969 (2019) 

(explaining that “every word and every provision is to be given 

effect [and that n]one should needlessly be given an 

interpretation that causes it to duplicate another provision or to 

have no consequence.” (alteration in original and citations 

omitted)).

In light of the above, the District Court improperly found 

it “clear” that a “special confidential relationship transcending 

an ordinary business transaction did not take place” between 

the parties. See Mem. Op. 31. The District Court failed to 

consider relevant District of Columbia and Maryland law, the 

statute’s clear imposition of duties of loyalty and care typical 

of a fiduciary, or the nature of the parties’ relationship—as 

partners and co-managers in a business venture, not merely

arms-length parties to a standard commercial transaction. 

Xereas’s claim for breach of fiduciary duty should have, at a 

minimum, survived the pleading stage.

We hold that Xereas adequately alleged that he, Dawson, 

and Heiss were members of a member-managed LLC, Second 

Am. Compl. ¶ 362, and that under D.C. law that suffices to 

plead the existence of a fiduciary duty. For the reasons above, 

we reverse and remand this claim for further proceedings.

B. 

Xereas has not, however, shown that we should reverse 

any of the District Court’s evidentiary rulings, particularly 

given the broad deference we owe the trial court on such issues. 

See Sprint/United, 552 U.S. at 384. “[W]e review a trial court’s 

evidentiary rulings for abuse of discretion and even if we find 

error, we will not reverse an otherwise valid judgment unless 

appellant demonstrates that such error affected [his] substantial 
15

rights.” Bowie v. Maddox, 642 F.3d 1122, 1134 (D.C. Cir. 

2011) (alterations in original) (internal quotation marks 

omitted). For an error to affect a party’s substantial rights, it 

“must have been prejudicial: It must have affected the outcome 

of the district court proceedings.” Muldrow ex rel. Estate of 

Muldrow v. Re–Direct, Inc., 493 F.3d 160, 168 (D.C. Cir. 

2007) (quoting United States v. Olano, 507 U.S. 725, 734 

(1993)). As the party claiming error, Xereas bears the burden 

of demonstrating harmfulness. Shinseki v. Sanders, 556 U.S. 

396, 409 (2009).

Xereas failed to carry his burden. To the extent his expert 

testimony was relevant to claims properly dismissed for other 

reasons, we find no prejudicial error. Nor do we find error 

where the District Court excluded Xereas’s expert testimony 

regarding trademark damages because it did not comply with 

our decision in Foxtrap, Inc. v. Foxtrap, Inc., 671 F.2d 636 

(D.C. Cir. 1982), to the extent that Xereas’s challenge can even 

be understood to extend to that ruling. And conclusory 

statements that the trial court’s remaining alleged errors 

“substantially prejudiced” Xereas do not demonstrate that each, 

or any, error altered the outcome of trial. See, e.g., Appellant’s 

Br. 24, 27; Appellant’s Reply and Response to Cross Appeal 

10, 18, 22. We decline to decide each evidentiary issue in turn.

Instead, the trial court on remand should examine anew the 

previous rulings through the lens of the single remaining 

breach of fiduciary duty claim. Conscious that the District 

Court—faced with a different claim on remand—could 

determine that the new claim warrants different rulings, we 

decline to elevate its prior rulings to law of the case because 

evidentiary rulings are inherently situational. See 

Sprint/United, 552 U.S. at 387–88 (citing the Advisory 

Committee’s note on Federal Rule of Evidence 401, 28 U.S.C. 

App. at 864, that “[r]elevancy is not an inherent characteristic 

of any item of evidence but exists only as a relation between an 
16

item of evidence and a matter properly provable in the case”); 

2 WEINSTEIN’S FEDERAL EVIDENCE § 401.04 (2020) (same). 

We remand a claim that has never been tried to the jury; in other 

words, the situation has changed, and so may the District 

Court’s evidentiary rulings at any retrial.

We make one final note to guide the trial court on remand. 

It is well settled that a party “cannot recover the same damages 

twice, even though the recovery is based on two different 

theories.” Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 

232, 241 (D.C. Cir. 2018) (Wilkins, J., concurring) (quoting 

Medina v. District of Columbia, 643 F.3d 323, 326 (D.C. Cir. 

2011)), cert. denied, 139 S. Ct. 1201 (2019). Xereas’s claim 

for breach of the operating agreement went to the jury, which 

found for him and awarded $106,000 in damages, later reduced

by the District Court. As described above, the parties’ 

agreement to enter into business and execution of the operating 

agreement gave rise to their fiduciary relationship, and the 

operating agreement helped define the contours of those

fiduciary duties. See, e.g., Amended Operating Agreement, 

Art. VIII. Xereas alleged lost earnings and lost proceeds to the 

LLC under both the breach of contract claim and his claim for 

breach of fiduciary duty. Second Am. Compl. ¶¶ 285, 373. To 

the extent the jury has already compensated him for 

Defendants’ breach of the operating agreement, Xereas would

not be entitled to a windfall of double damages from any

second trial if a new jury, unaware of the prior award, assigns 

damages to cure the lost earnings he has already received. See 

Hill, 897 F.3d at 241. We leave it to the District Court on 

remand to ensure Xereas is not compensated twice for the same 

injury. See Medina, 643 F.3d at 326.
17

III.

Turning to Defendants’ cross-appeal, we affirm the 

District Court’s decision to deny Defendants judgment as a 

matter of law on Xereas’s breach of contract claim. We also 

affirm the denial of Defendants’ fee petition for the reasons 

below.

A.

“[W]e do not lightly disturb a jury verdict.” Radtke v. 

Lifecare Mgmt. Partners, 795 F.3d 159, 163 (D.C. Cir. 2015)

(alteration omitted). We review the District Court’s denial of 

a motion for judgment as a matter of law de novo. Id. 

“Judgment as a matter of law is appropriate only if the evidence 

and all reasonable inferences that can be drawn therefrom are 

so one-sided that reasonable men and women could not have 

reached a verdict in plaintiff’s favor.” Muldrow, 493 F.3d at

165 (internal quotation marks and citation omitted). We cannot 

substitute our view for that of the jury, nor do we assess the 

credibility or weight of the evidence. See Radtke, 795 F.3d at 

163.

Defendants argue that Xereas introduced insufficient 

evidence at trial to support his breach of contract claim because 

he failed to present evidence of damages caused by 

Defendants’ breach of the operating agreement. Appellees’ Br. 

25. Under District of Columbia law, breach of contract 

requires a showing of: “(1) a valid contract between the parties; 

(2) an obligation or duty arising out of the contract; (3) a breach 

of that duty; and (4) damages caused by [the] breach.” 

Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 

2009). Defendants strenuously urge that any salary paid or 

promised to Xereas was “discretionary” under the operating 

agreement. Appellees’ Br. 27; see also Amended Operating 
18

Agreement, Art. VI § 6.4. Under their theory, none of 

Defendants’ breaching behavior, including removing Xereas as 

a managing member, could have caused him to lose a salary he 

was never entitled to. Appellees’ Br. 27.

Xereas counters that he introduced evidence that 

Defendants agreed to pay him a salary of $72,000. Appellant’s 

Reply and Response to Cross Appeal 25, 27. He argues that

testimony describing the LLC’s payment of similar salaries to 

a second general manager, as well as management consulting 

fees, allowed the jury to infer that he would have been 

compensated at a similar rate to that of general managers had 

he not been removed. Id. at 26–27. He further notes that he 

presented evidence that Defendants improperly removed him 

as a managing member in violation of the operating agreement, 

and that in light of the conflicting testimony presented at trial, 

“it was properly left to the jury to determine the weight of the 

evidence presented and the credibility of the witnesses.” Id. at 

25–26. 

Xereas is correct: the evidence introduced at trial was not 

“so one-sided that reasonable men and women could not have 

reached a verdict in [his] favor.” Muldrow, 493 F.3d at 165. 

Xereas testified that Defendants agreed to pay him a salary, and 

Defendant Dawson acknowledged that “[i]n a perfect world, he 

would have gotten his salary, which we had hoped would be 

$72,000 a year.” See Trial Tr. 232:5–7; 616:24–617:9. But 

Defendant Dawson also testified that this salary was never 

guaranteed. Trial Tr. 617:10–16. Given the conflicting 

testimony, it is not our role to substitute our view for the jury’s 

careful weighing of the witnesses’ credibility and of the 

evidence. See Radtke, 795 F.3d at 163. 

We note finally that Xereas’s testimony that Defendants 

improperly removed him as a managing member suffices to 
19

draw a causal link between the claimed damages and his 

removal. The operating agreement provides that “[n]o 

Member, as such, other than the Managing Members shall . . .

[b]e paid any salary by the Company.” Art. V § 5.10(c). If the 

jury evaluated the conflicting evidence and credited Xereas’s 

testimony that he was to be compensated for performance of

his management duties, his improper removal as a managing 

member eliminated his chance to recoup the salary owed. For 

the reasons above, we affirm the District Court’s denial of 

Defendants’ renewed motion for judgment as a matter of law.

B.

We also affirm the District Court’s denial of Defendants’

fee petition. Although Defendants are prevailing parties with 

respect to their Lanham Act claims, the District Court also 

based its denial on its view that this case is not “exceptional” 

as required to justify fees. See 15 U.S.C. § 1117(a) (“The court 

in exceptional cases may award reasonable attorney fees to the 

prevailing party.”). We review the denial of Defendants’ PostTrial Motion for Attorney’s Fees for abuse of discretion. 

United States ex rel. Burke v. Record Press, Inc., 816 F.3d 878, 

882 (D.C. Cir. 2016). Defendants have not convinced us that 

the trial court abused its “substantial discretion” in denying 

Defendants’ fee petition. Swedish Hosp. Corp. v. Shalala, 1 

F.3d 1261, 1271 (D.C. Cir. 1993).

A party need not win judgment on every claim to be a 

“prevailing party.” Fox v. Vice, 563 U.S. 826, 834 (2011). 

Because Defendants were granted judgment on the merits of all 

three of Xereas’s Lanham Act claims, they were prevailing 

parties. See Buckhannon Bd. & Care Home, Inc. v. W. Va. 

Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001) 

(“[E]nforceable judgments on the merits . . . create the 

‘material alteration of the legal relationship of the parties’ 
20

necessary to permit an award of attorney’s fees.” (quoting Tex.

State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 

792–93 (1989))). The District Court was incorrect when it 

stated, without explanation, that “Defendants have failed to 

demonstrate . . . that they are ‘prevailing’ parties.” See Mem.

Order 2, ECF No. 252 (Aug. 9, 2019).

However, no prejudice lies where the District Court did 

not abuse its wide discretion in determining that this case is not 

exceptional. Id. Analyzing an identical fee-shifting statute in 

the Patent Act, 35 U.S.C. § 285, the Supreme Court has stressed 

the discretion owed to district courts. See Highmark Inc. v. 

Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014). The

Lanham Act’s fee-shifting provision, like the Patent Act’s, 

“emphasizes the fact that the determination is for the district 

court.” Id. at 564 (citation omitted). Thus, we do not overturn 

it lightly. 

Defendants contend that this case stands out based on the 

trial testimony, which they argue irrefutably showed that 

Xereas’s claimed oral license to the LLC to use his RIOT ACT

trademark was “a fiction.” Appellees’ Br. 31. In their view,

the evidence showed that Xereas lied about granting an oral 

license to Defendants, referred to the LLC’s ownership of the 

intellectual property, and applied for the mark only after 

granting the LLC the right to use it (and thus filed false 

statements with the Patent and Trademark Office). Id. at 31–

32. Xereas responds that Defendants failed to establish that the 

District Court abused its discretion where his trademark 

infringement claims failed only because he did not introduce 

evidence of damages traceable to their infringing behavior, not 

because the evidence refuted his testimony that Defendants 

infringed his mark. Appellant’s Reply and Response to Cross 

Appeal 32. 
21

The District Court found that Defendants failed to show 

that the case was brought for the purpose of harassing them, or 

that Xereas’s conduct was willful or in bad faith. Mem. Order 

2. The Supreme Court has interpreted the Patent Act’s 

identical fee-shifting statute broadly: “[A]n ‘exceptional’ case 

is simply 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 v. ICON Health & Fitness, Inc., 572 U.S. 545, 

554 (2014). Here the District Court exercised its substantial 

discretion to find that this case was neither litigated 

unreasonably nor brought to harass. Because district courts 

“may determine whether a case is ‘exceptional’ in the case-bycase exercise of their discretion, considering the totality of the 

circumstances,” we decline to overturn the District Court’s 

ruling here. See id. 

IV.

For the foregoing reasons, we reverse the District Court’s 

dismissal of Xereas’s breach of fiduciary claim and remand for 

proceedings consistent with this opinion. We affirm the 

District Court’s rulings on both issues raised in Appellees’

cross-appeal. 

So ordered.