STATE OF NEW MEXICO

COUNTY OF BERNALILLO
SECOND JUDICIAL DISTRICT

MASSTHETICS, LLC;
LEGION IRON, LLC; and
SIMON OTERO,
Plaintiffs,
v. D-1314-CV-2018-01280

GARRETT GONZALES,
Defendants.

REPLY IN SUPPORT OF EMERGENCY MOTION FOR INJUNCTIVE RELIEF

Defendant achieved the impossible in his Response. He failed to offer a single truthful fact in

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.

II. PLAINTIFFS SATISFIED THE TEST FOR EMERGENCY INJUNCTIVE RELIEF.

A. Defendant has not Rebutted Plaintiffs’ Showing of Irreparable Harm.
Defendant’s conclusory assertions do not rebut Plaintiffs’ showing of past and threatened

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.

B. Irreparable Harm and Injunctive Relief Under the UTA.

Plaintiffs also argued that under the New Mexico Uniform Trade Secrets Act (“UTA”), “actual or

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

appropriate remedy to prevent the harm occasioned by misappropriation of confidential information,

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.”).

D. The Public Interest is Served by Entering an Injunction.

Defendant’s argument is contradicted by the evidence; and instead of trying to formulate an

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.

E. Plaintiffs Have Shown a Likelihood of Success on the Merits.

Defendant attached Exhibit A to his Response, hoping it would be his saving grace. But even

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.

“Whether a contract is ambiguous is a question of law.” Danzer v. Prof Insurors, Inc.,

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).

III. THE REMAINING INCORRECT AGRUMENTS OF DEFENDANT.

“The purpose of a preliminary injunction ‘is merely to preserve the relative positions of the parties

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,

GARCIA LEGAL, LLC

By: /s/ Jonathan A. Garcia

Jonathan A. Garcia
P.O. Box 94898
Albuquerque, NM 87199
Tel: (505) 297-1222
Fax: (505) 3181721
jonathan@jgarcialegal.com

I HEREBY CERTIFY that on the 21st of November

2018, a copy of the foregoing pleading was filed and
served upon all service contacts on the Court’s e-
filing system.

/s/ Jonathan A. Garcia

Jonathan A. Garcia

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Exhibit A
Exhibit B