United States Court of Appeals

For the Eighth Circuit

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No. 14-3461

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Peter Kiewit Sons’, Inc.

lllllllllllllllllllll Plaintiff - Appellee

v.

WallStreetEquityGroup,Inc.;WallStreetGroupofCompanies,Inc.;ShepherdFriedman

lllllllllllllllllllll Defendants

Steven S. West

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: November 17, 2015

 Filed: January 6, 2016

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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

This appeal arises out of a trademark infringement suit filed by Peter Kiewit

Sons’, Inc., in which the district court first entered a default against the defendants

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as a sanction for discovery abuses, and then proceeded to enter default judgment

against defendant Steven West in the amount of $913,099.46. On appeal, West

argues that the district court abused its discretion in denying West’s multiple motions

to postpone the hearing on damages, and that it erred in calculating the damages

award. We have jurisdiction under 28 U.S.C. § 1291 and, finding no error in the

district court’s rulings, we affirm.

I. Background

West is a Florida businessman who, along with his business associate,

Shepherd Friedman, owned Wall Street Equity Group, Inc., and Wall Street Group

ofCompanies, Inc. Allfour were sued in September 2010 for trademark infringement

by Kiewit, a large construction and mining company based in Omaha, Nebraska.

Kiewit sued because it had learned that the defendants had been contacting

businesses and telling them Kiewit was interested in acquiring them, as long as they

submitted to a valuation by West. In reality, Kiewit had no connection with the

defendants. Their paths had crossed only once, in 2008, when Kiewit was in the

process of acquiring a company called Jett Industries. After Jett’s owner responded

to an advertisement by one of West’s companies, the company sent out a mass mail

with information about Jett to a number of companies, including Kiewit. Kiewit

expressed interest in buying Jett, but quickly realized that West’s company had no

expertise on acquisitions. As a result, Kiewit proceeded to work directly with Jett’s

The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska.

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owner over the next two to three months to complete the acquisition; West and his

company played no further role, apart from West’s showing up to collect his fee at the

closing of the deal.

A number of the solicitations sent out by the defendants offering to valuate

companies mentioned Kiewit by name. This formed the basis for Kiewit’s trademark

infringement suit under the Lanham Act and Nebraska state law, for “Kiewit” is a

service mark owned by Peter Kiewit Sons’, Inc. In response, the defendants claimed

that they had only used the “Kiewit” mark in solicitations on two occasions, and that

they had no additional documents that used the word “Kiewit.”

These statementsturned out to be false, and in the judgment of the district court

knowingly so. The defendants in fact possessed thousands of files containing the

term “Kiewit,” including letters to third parties very similar in content to the two

solicitations the defendants had previously acknowledged. The defendants did not

turn these files over in discovery. Instead, they engaged in a protracted campaign of

obstruction and spoliation – with West going so far as to throw one of his file servers

in a dumpster, claiming that its motherboard was “fried.” In response to these

discovery abuses, the magistrate judge in charge of discovery found that West “was

not a believable witness” and had exhibited a “pattern of dishonesty under oath,” and

that the defendants had “intentionally submitted false evidence and testimony in bad

faith, committed fraud on this court, and intentionally destroyed evidence with a

desire to suppress the truth in this case.” On her recommendation, the district court

entered a default against each of the defendants as a sanction. None of the foregoing

actions by the district court is contested on appeal.

The district court then scheduled a hearing for October 11, 2013, to further

develop the factual record and determine the amount of damages. In the weeks

leading up to this date, West, who by this time was no longer represented by counsel,

filed several motions to postpone the hearing.

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On September 5, 2013, West filed a motion asking to move the hearing to “any

Friday in November starting with the second Friday” (in other words, to delay the

hearing by at least four weeks) to accommodate a man named Frank Owen, whom

West referred to as his attorney. According to West, Owen would be unable to attend

a hearing on October 11 due to multiple medical operations, but he would be able to

“participate in a one day video conference trial” by November. West noted that his

own health as of October 11 would be uncertain due to unspecified medical ailments,

but emphasized that Owen would clearly not be able to participate. The following

day, the magistrate judge ordered Owen to make a formal appearance by September

13. Then, on September 11, West filed a pro se “Motion to Clarify the Previous

Filing,” explaining that he planned to represent himself because Owen was not “in a

position to commit himself to a continuing relationship in this matter based on the

economic challenges” West faced. He stated that Owen’s role would be limited to

“provid[ing] [him] with procedural advice and direction.”

In response, the magistrate judge issued an order denying the motion to move

the hearing. The order stated that if Owen’s role in providing legal advice was to be

significant enough to require rescheduling the hearing, he would need to enter an

appearance for West; otherwise, the hearing would proceed withoutregard to Owen’s

availability. The order also clarified that the hearing would not be a “one day video

trial,” but would require the parties to be present in the courtroom. Finally, the order

permitted West to re-file his motion if he could provide evidentiary support from a

licensed medical provider indicating that West would be unable to attend the hearing

in Omaha on October 11.

On September 24, West filed a second motion seeking to postpone the hearing

to an unspecified date. Attached to the motion were three letters: one from I. Jay

Asher, a psychotherapist, who opined that West had been “running in emergency

mode for eleven years” and that “[a] stressful one-day trial could be life-threatening”

to West; one fromDr. William A. Abelove, who stated that he had been treating West

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for essential hypertension for over a decade and that “[p]articipation in a high

pressure court proceeding could place himat increased risk for a major cardiovascular

event”; and one from a psychiatrist named Dr. Richard W. Levin, who stated that

West was suffering from severe depression, that despite treatment his progress in the

past two weeks had been minimal, and that a court appearance “would be very

deleterious to him and his mental status.”

The next day, the magistrate judge denied his second motion, noting that each

of the medical issues identified in the letters was long standing, and that there was

little point in postponing the hearing when there was no indication that the conditions

would improve in the future. She also pointed out that apart from the hypertension

noted by Dr. Abelove, the medical opinions expressed in the letters were largely

based on self-reporting by West, and that his credibility was suspect. West moved

for reconsideration of the order a few days later, which was also denied.

On October 8, West moved for the magistrate judge to recuse herself, claiming

that she was biased against him based on her rulings against him. The same motion

also contained a request to delay the hearing, with a letter from his acupuncturist,

Odin Gutierrez, attached. Gutierrez – who did not identify as a medical doctor – 

expressed the opinion that there “may be a high chance of Mr. West suffering a severe

adverse medical event which could be a catastrophic cardiovascular event” if he were

to participate in a one-day hearing, but he believed that West’s health would

“improve again, allowing a reasonable amount of time.” The same day, the

magistrate judge denied the motion, finding thatshe did not harbor bias against West. 

She also denied his request to move the hearing, finding that his acupuncturist’s

opinion was “not a sufficiently certain and reliable opinion from a qualified medical

provider” to warrant reversing her prior decisions.

Finally, during an October 9, 2013, conference call, West orally moved a fourth

time to defer the hearing. This time, the district court issued a written order denying

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the motion, suggesting that West was effectively asking the court to postpone the

hearing indefinitely, and expressing concern that West was attempting to do so in

order to delay the outcome of the case. The hearing proceeded on October 11 as

scheduled, without an appearance by West or anyone acting on his behalf.

Based on testimony at the hearing from two Kiewit employees and Friedman,

as well as the allegations in the complaint, the district court found that Kiewit had

stated a claim under the Lanham Act and Nebraska state law, and that West (but not

Friedman) should be held personally liable for all the defendants’ damages, without

regard to the nominally separate legal existence of the Wall Street entities.

Recognizing that there waslittle evidence to suggest that Kiewit had actually suffered

harm, the court found it appropriate to award damages based on the profits generated

by the defendants from their use of the Kiewit mark. And recognizing that the

defendants had intentionally destroyed evidence that would permit an accurate

calculation of their ill-gotten gains, the court increased the damages award beyond

that which could be proved by direct evidence.

Thus, the $124,910 that was known to have been paid to the defendants based

on solicitations containing the Kiewit mark was increased to $174,874 to account for

four other businesses also known to have paid the defendants based on solicitations

containing the Kiewit mark. Because the amount these four businesses paid the

defendants was unknown, the court assumed that each business paid the defendants

the average amount paid by the businesses whose payments were known. And then,

based on a suggestion from Kiewit that the district court found “reasonable almost to

a fault,” this amount was in turn tripled to $524,622 to account for payments from

unknown businesses that could not be proved due to defendants’ spoliation of

evidence. Finally, the district court awarded an additional $388,477.46 in attorney’s

fees and costs, and entered a permanent injunction against the defendants.

West timely filed an appeal.

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II. Discussion

West’s first challenge is to the district court’s refusal to postpone the hearing. 

We review the district court’s denial of a deferment for abuse of discretion, Farmers

Co-op Co. v. Senske & Son Transfer Co., 572 F.3d 492, 499 (8th Cir. 2009), and

conclude that no such abuse occurred here. The district court was justified in

declining to move the hearing based on West’s claimedmedical problems when it was

given no credible evidence that the problems could be resolved within any concrete

time frame, nor any reason why such a time frame could not be determined. See

Johnson v. Potter, 364 F. App’x 159, 163 (5th Cir. 2010) (“[The plaintiff] sought a

continuance solely on the basis of a letter from her doctor, and the letter gave no

indication when, if ever, [she] would be available for trial. If the district court had

not denied the motion, it might have waited indefinitely for [her] to be ready for

trial.”).

West counters that he requested only a four-week deferral, during which time

his doctors would be able to restore him to health. But none of the letters he attached

to his motionssuggested that his health could be improved in four weeks. Indeed, his

initial September 5 motion indicatesthat he asked for four additional weeks based on

the unavailability of Owen, the attorney whose aid he hoped to enlist. And one of the

letters he provided – the one submitted by Dr. Levin – stated with respect to West’s

treatment that “[p]rogress in the past two weeks has been minimal,” casting further

doubt on any claim that West’s medical issues were temporary in nature and could be

accommodated by a postponement of reasonable length.

To this must be added the fact that both the district court and the magistrate

judge were clearly skeptical of West’s credibility based on their experience with him

during the discovery process. They were entitled to rely on this experience in

evaluating the motives behind West’s motions to delay the hearing, the veracity of

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West’s claimed ailments, and even the letters from medical professionals, to the

extent they were based on West’s own self-reporting. See Watson v. Miears, 772

F.2d 433, 437 (8th Cir. 1985). In light of these considerations, we cannot conclude

that the district court or the magistrate judge abused their discretion in declining to

delay the hearing.

West also argues that the district court erred by not deducting overhead and

operating costs from its calculation of defendants’ profits. The initial problem with

this argument is that, as West admits, he never raised it before the district court. 

“Ordinarily, we do not consider an argument raised for the first time on appeal. We

consider a newly raised argument only if it is purely legal and requires no additional

factual development, or if a manifest injustice would otherwise result.” Orr v.

Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir. 2002) (citations omitted).

West argues that the first of these two exceptions is satisfied here, because it

can be gleaned from Friedman’s testimony at the hearing that some of the payments

the defendants received went towards operating costs and overhead:

Q. Were the monies that the company raised by selling these valuations

used to pay the staff?

A. They were used to pay the staff. Generally speaking, they were used

to pay the, quote, overhead.

. . .

Q. And these different fees that were raised by the company were to

operate the office so to speak?

A. Correct.

But this testimony alone does not allow us to deduct the correct amount of operating

costs and overhead from the total damages awarded by the district court. Friedman’s

testimony suggests that – as one might expect – some of the money acquired through

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the use of the Kiewit mark may have been used for operating costs and overhead, but

we have no idea how much of it was. Since proving the amount of these costs was

West’s burden, Tonka Corp. v. Tonk-A-Phone, Inc., 805 F.2d 793, 794 (8th Cir.

1986) (per curiam), and he cannot do so without further factual development, we

cannot address for the first time on appeal his argument that the district court

improperly failed to deduct operating costs and overhead.

West also seizes upon a stray comment by the district court that “[i]t is the

Court’s determination that under the circumstances of this case, the defendants’

liability was not reasonably capable of ascertainment, and the Court’s award is

sufficient to make Kiewit whole.” West argues that the reference to “mak[ing] Kiewit

whole” shows that the district court improperly viewed its disgorgement remedy as

compensatory. We think a reading of thatstatement in context putsthat claim to rest:

the previously-described methodology used by the district court for calculating the

damages award was admirably transparent, and does not reveal any improper

compensatory purpose.

Accordingly, the judgment of the district court is affirmed.

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