Beruflich Dokumente
Kultur Dokumente
COUNTY OF BERNALILLO
SECOND JUDICIAL DISTRICT
MASSTHETICS, LLC;
LEGION IRON, LLC; and
SIMON OTERO,
Plaintiffs,
v. D-1314-CV-2018-01280
GARRETT GONZALES,
Defendants.
support of his unremarkable position that: (1) Plaintiffs do not have standing to bring this lawsuit; and (2)
Plaintiffs “cannot” satisfy any element of the test to be applied when determining whether a preliminary
injunction is warranted in this case. See Response at 1. To be sure, he asserts the following false facts:
• Compare Response at 2 (“Mr. Otero failed to provide…any explanation as to how he is legally entitled to any of
the damages or relief he seeks in this lawsuit.”); with Verified Application at 5 (arguing Defendant’s conduct has
caused reputational harm and loss of goodwill to the Plaintiffs and “reputational harm takes place in the
consumer’s minds; cannot be discovered, quantified, or repaired.”); and id. (a “likelihood of damage to reputation
is by its nature irreparable. Trying to compensate after the fact for damage to business goodwill and reputation
cannot constitute just or full compensation.”).
• Compare Response at 2 (Mr. Otero “[did] not attach any contracts, agreements, or other documents that “might
purport to evince any legal rights owned by Mr. Otero with respect to the companies at issue.”); with Legion Iron
Articles of Organization (Exhibit A and B to Verified Application).
• Compare Response at 2 (Plaintiff made “no allegations that he was in any way, shape, or form involved in the
day-to-day operations of the companies...”); with Application ¶¶ 18-22, 53; and the Motion (filed after Defendant
barricaded himself inside the gym and prevented Plaintiff entry).
• Compare Response at 2 (Plaintiff “does even not [sic] endeavor to make any attempt whatsoever to explain[]how
the–inaccurate–allegations made [] might support any legal theory advanced…”); with Motion at 6-9 (the relaxed
standard regarding likelihood of success can be satisfied where questions going to the merits are so serious,
substantial, difficult, and doubtful to make the issue deserving of more deliberate investigation).
• Compare Response at 3 (“The only injury that Mr. Otero alleges he will suffer if he is not granted the extraordinary
equitable relief sought by his motion is money damages, and economic loss is not enough to justify an
injunction.”); id. at 3 (“the only harm alleged by the plaintiff is monetary damages.”); and id. at 4 (“The only
potential injury that Mr. Otero alleges he might suffer if an injunction is not granted is a loss of money.”); with
Motion at 5; and id. at 9 (“actual or threatened misappropriation may be enjoined.”)
• Compare Response at 6 (“Mr. Otero has not produced any contracts, legal documents, or even a scintilla of
evidence that he has any interest in Massthetics, LLC or Legion Iron, LLC.”); with Legion Iron Online Articles
of Organization (Exhibit A and B to Verified Application).
• Compare Response at 2 (“Plaintiffs “failed to provide [] any of the aforementioned evidence, because it does
not exist”); with Motion; Verified Application; Complaint.
I. PLAINTIFFS HAVE STANDING TO BRING THIS LAWSUIT.
Instead of addressing the facts, Defendant dedicated his time and resources to preparing a lesson
on standing. Simultaneously, Plaintiff was trying to save the business from being run into the ground by
Defendant through the course of conduct he has engaged in since October 12, 2018, as discussed in the
Motion, the Verified Application, the Complaint, and the First Amended Complaint, all incorporated
herein pursuant to Rule 1-010(C). Plaintiff also secured copies (and some originals that Defendant tried
to conceal) of the company documents maintained by the NM SOS, Nusenda, and Sandia Area. Plaintiffs
requested Defendant allow inspection of the documents, to no avail. Plaintiff has shown he has standing.
irreparable injury. On October 12, 2018, Defendant permanently deleted the @simonmassthetics
Instagram the Massthetics YouTube Channel. Plaintiffs permanently lost over 27,000 Instagram
followers/fans, and 50,000 YouTube subscribers due to Defendant's misconduct. Each lost follower and
subscriber represents the loss of an important customer relationship. All were developed over many years
through the Parties’ efforts. Plaintiffs reasonably expected these relationships would continue. On
November 20, 2018, Defendant published the image in Exhibit A. The response is telling. The publication
was before Defendant and Daniel Stell entered the gym and disabled the cameras. Exhibit B.
Plaintiffs cannot be sure of the precise value of the lost profits and future profits because Defendant
“froze” Plaintiff out of the business accounts. Motion at 5, ¶¶ 14-16. Plaintiffs had a reasonable
commercial expectation of earning profits through the relationships with each consumer. Injunctions are
granted to prevent irreparable injury when there is no adequate and complete remedy at law, including
where the injury is not “measurable by reasonably certain monetary damages.” Hines Corp. v. City of
Albuquerque, 1980-NMSC-107, ¶ 13, and irreparable harm may be based on factors like “difficulty in
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calculating damage and [the] existence of intangible harms [like] loss of goodwill or competitive market
position.” Dominion Video Satellite v. Echostar Satellite., 356 F.3d 1256 (10th Cir. 2004).
The one argument Defendant made supports Plaintiffs’ position. Defendant’s counsel claims,
“Mr. Gonzales communicates with patrons, handles all aspects of customer service, all of the paperwork
necessary for the companies to function, and has become so involved with both companies and their
customers that he is considered to be the face of both companies,” see Response at 5, so he must agree
that “[e]very day that [he] is allowed access to the business operations and social media accounts, people
are interacting with him, buying content, viewing it, or telling others about it, and the damage to the
Plaintiffs’ reputations increases in ever-widening circles. Motion at 5. This demonstrates the difficulty of
determining the extent to which the business losses are attributable to Defendant's misconduct or other factors.
threatened misappropriation may be enjoined.” § 57-3A-3(A). Plaintiffs have more than adequately
demonstrated irreparable harm, which continues to this day. See Exhibit A. An injunction is an
particularly where the contemplated harm will be ongoing. Winrock Enterprises, Inc. v. House of Fabrics of
New Mexico, Inc.,1978-NMSC-038, ¶ 6 (“Where the imminent harm or conduct is or will be of a continuous
nature, the constant recurrence of which renders a remedy at law inadequate, except by a multiplicity of
suits, then the injury is irreparable at law and relief by injunction is therefore appropriate”).
Moreover, in cases involving theft of trade secrets where, as here, someone “improperly acquired
trade secrets, plaintiffs need not demonstrate irreparable harm to obtain a preliminary injunction against
Defendant’s continued possession or use of trade secrets.” First Nat'l Bancorp Inc. v. Alley, 2014 WL 11609849,
at *9 (D.N.M. July 7, 2014) (applying UTA to grant a preliminary injunction against former employee).
C. Threat of Injury.
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Defendant claims that “Mr. Otero’s request…poses a significant threat to Mr. Gonzales, see
Response at 5, but if that were true, Defendant Gonzales would know that Massthetics does not have “day-
to-day” operations. Massthetics is (or was) the platform from which Legion Iron—the actual gym—was
launched. But according to Defendant, “Massthetics is dead…” Defendant also omits relevant facts in
order to drastically overstate the impact of an injunction. He fails to offer a single fact or argument
explaining what damage he might be caused by an injunction. Defendant faces no hardship in having to
pursue his livelihood honestly for the pendency of this litigation. Dish Network L.L.C. v. Ramirez, No. 15-CV-
04712-BLF, 2016 WL 3092184, at *7 (N.D. Cal. June 2, 2016) (balance of hardships tips in favor of plaintiff
seeking injunction when it “does no more than require compliance with federal and state…laws.”).
argument which is relevant, Defendant focused his efforts on his forum shopping argument, which has
already been addressed. Defendant ignored the argument that the “strong public policy in New Mexico
supporting the confidentiality of trade secrets should be enforced here. See Motion at 9-10.
assuming Plaintiff signed the document, which he denies, the document is ineffective by its own terms. It
provides: This Operating Agreement is effective when received by the Secretary of State, but submitted on the date specified below.
1984-NMSC-046, ¶ 6. If the contract is not “reasonably and fairly susceptible of different constructions”
then no ambiguity exists. S tock v. Grantham, 1998-NMCA, ¶ 15. “It is black letter law that, absent an
ambiguity, a court is bound to interpret and enforce a contract's clear language and cannot create a new
agreement for the parties.” Davis v. Farmers Ins. Co. of Arizona, 2006-NMCA-099, ¶ 8. “Interpretation of an
unambiguous contract is a question of law.” Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, ¶ 15.
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Plaintiffs have requested all documents received by the NM SOS from Legion Iron, and they
responded on November 13, 2018. See Exhibit H to Motion to Amend. The document identified as
Exhibit A to Defendant’s Response was not included. The language of this provision is clear,
unambiguous and only susceptible to one meaning. The purported addendum is void and ineffective.
Plaintiffs have shown all elements of their trade secrets misappropriation claim, including the
existence of trade secrets and misappropriation. C.f § 57-3A-2(D)(“a trade secret is information such
as…compilation, program, method, [or] technique that: derives independent economic value from not
being generally known to…others who can obtain economic value from it; and is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy”); and Motion at 9 and 4, ¶¶ 6-16.
Defendant ignored the fact that Plaintiffs’ workout programs easily meet this standard. Defendant
did not dispute that he engaged in actions amounting to misappropriation. Plaintiffs compilation of gym
members, consumer names, social media handles, email addresses, comment history, interactions with
other consumers through the @simonmassthetics, the Massthetics YouTube Channel, on the security and
the point of sales systems were up-to-date databases containing extensive information. These
compilations of information “[go] beyond general skills and knowledge, recollection of client preferences,
and information that one could easily obtain by consulting a phone directory.” Rapid Temps, Inc. v.
Lamon, 2008-NMCA-122, ¶ 23 (client database was protectable trade secret under UTA).
until a trial on the merits can be held.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258–59 (10th Cir. 2005).
The “status quo” can mean different things in different circumstances. See 11A Charles Alan Wright et
al., Federal Practice and Procedure (3d ed.). In cases like this where a defendant has already inflicted
damage, the status quo is the “last peaceable uncontested status existing between the parties before the
dispute developed.” Schrier, 427 F.3d at 1260. Thus, the reality between the parties at the last peaceable
situation was when Plaintiff possessed a 50% ownership interest in the companies had access to all
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accounts. As such, the request to enjoin or compel Defendant in the manner set forth in the Motion at 10,
¶¶ 1(A)-(I) does not disrupt the status quo. Moreover, Plaintiffs ask for more than an order restraining
Defendant. Plaintiffs seek punitive damages and attorney fees. Such damages may be significant. Thus,
with the large amount of additional damages alleged, the preliminary injunction is not “substantially all
the relief” to which Plaintiffs may be entitled. See SCFC ILC, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991).
Respectfully submitted,
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Exhibit A
Exhibit B