JY

FILED
13th JUDICIAL DISTRICT COURT
Valencia County
STATE OF NEW MEXICO 11/26/2018 2:53 PM
COUNTY OF VALENCIA PHILLIP ROMERO
THIRTEENTH JUDICIAL DISTRICT CLERK OF THE COURT

MASSTHETICS, LLC; a New Mexico

Limited Liability Company;
LEGION IRON, LLC, a New Mexico
Limited Liability Company; and
SIMON OTERO,

Plaintiffs,
v. D-1314-CV-2018-01280

GARRETT GONZALES,

Defendants.

PLAINTUIFFS’ REPLY IN SUPPORT OF EMERGENCY MOTION FOR CIVIL CONTEMPT

Plaintiffs, through counsel, Reply in further Support of their Emergency Motion as follows:

I. DEFENDANT FAILED TO REBUT PLAINTIFFS’ SHOWING THAT DEFENDANT VIOLATED THE TRO.

Defendant does not deny that:

• He was “served with the TRO on October 25, 2018 at approximately 1:15
a.m. at 901 Hazeldine, Ave. ABQ, NM 87106” as alleged, with supporting
documentation, in Plaintiffs’ Motion. See Mot. at 3.

• The TRO was “specific, clear, and effective with the full force of the law,” as
stated in the TRO, and as alleged by Plaintiffs with the specific citation to the
TRO in the Motion. See the TRO; and the Mot. at 1, ¶ 2.

• After being served with the TRO, Defendant still denied Plaintiffs “access to
the gym, [and] access to the [companies’] financial records.” See Mot. at 3.

• He published content under @legionirongym Instagram on October 27, 2018,

as alleged in the Motion, which referenced the Verified Application.

• He withheld business documents; business email addresses; [and] passwords,

as alleged in the Motion, which referenced the Verified Application.

• He did not vacate the premises immediately after being served with the TRO,
and withheld passwords for the gym, the point of sales system, and the
surveillance cameras as alleged in the Motion and Verified Application.

Instead of refuting any of the facts, Defendant’s counsel argued, very simply:

“[h]ere, Mr. Otero has failed to provide any factual basis for the Court to find Mr. Gonzales in
contempt of court.” See Resp. at 3. Defense counsel then took the opportunity to offer an

unprompted and unprofessional personal attack of the Plaintiffs and their counsel, even going so

far as to describe the emergency filings in this case as evidence of a “haphazard litigation strategy,”

as if the emergent matters brought to the Court’s attention in the Motion, Verified Application for

TRO, Emergency Motion for Injunctive Relief, and First Amended Complaint are a part of a game.

Although he took the time to state his irrelevant opinions, counsel ignored Plaintiffs’

arguments and showing that Defendant had knowledge of the TRO, the ability to comply with it,

and that he violated it. See Mot. at 4 (citing Tue Thi Tran v. Bennett, 2018-NMSC-009, ¶ 35

(elements necessary for a finding of civil contempt). Regardless of his strategy, counsel should

know gym member safety and the operations of the gym are anything but a game. Counsel knows,

in fact he agrees, “arguments of counsel are not evidence. See Resp. at 4-5. As counsel would say,

“[Defendant’s] failure to provide any evidence [to refute Plaintiffs’] Motion is dispositive.” Id.

The Court should grant the Motion and it should compel Defendant to explain why he

should not be held in civil contempt and why sanctions should not issue against him.

II. DEFENDANT’SVIOLATIONSOFTHETROARERELEVANT,PROBATIVE,ANDSHOULDBECONSIDERED.

Plaintiffs moved for a preliminary injunction on an emergency basis on October 25, 2018

to prevent harm to their hard-earned reputation arising from Defendant’s unauthorized and

injurious use of Massthetics, LLC, Legion Iron, LLC, and Mr. Otero’s protected property rights,

in a manner that irreparably harmed and continues to harm the Plaintiffs, and demonstrably

confuses consumers. As of that date, Defendant already caused irreparable damage to the Plaintiffs

and actual confusion and frustration to consumers. Plaintiffs learned of these instances shortly after

they occurred (with a slight time lag due to the time required for consumers to publish comments

about their negative experiences with Legion Iron and Defendant, and for Plaintiffs to find them).

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 Since the October 23, 2018 filing, Defendant’s conduct has been incessant, continuous,

and irreparably damaging to the Plaintiffs’ rights. Defendant’s Response would have the Court

ignore all of the events which have occurred since the entry of the TRO on October 24, 2018.

See Resp. at 6 (citing to Beller ex rel. Beller v. United States, 221 F.R.D. 689, 695 (D.N.M. 2003)).

However, Defendant ignores the Tenth Circuit’s advice that a trial court is not barred from

considering new evidence or arguments, and the opposing party may “seek leave of the court to

file a surreply.” Pippin v. Burlington Res. Oil and Gas Co., 440 F.3d 1186, 1191-92 (10th Cir.

2006) (affirming trial court's reliance on new evidence submitted as exhibits to reply brief when

non-moving party never sought leave to file a surreply). The Tenth Circuit's focus is an equitable

consideration to determine whether the non-moving party will be prejudiced. Thus, while courts

disfavor new arguments and evidence in a reply, Defendant can show no prejudice here by the

Court being made aware of the acts he committed. See Pimentel & Sons Guitar Makers, Inc.v.

Pimentel, 229 F.R.D. 208, 210-11 (D.N.M. 2005) (denying motion to strike new evidence

submitted in a reply in support of a preliminary injunction and allowing defendant to file a surreply

instead). The facts below are relevant, material, and probative, and should be considered.

October 24, 2018. Hours after being served, Defendant directed gym member C. Miller to

go into the Legion Iron office where he verbally assaulted C. Miller and told him to “get the fuck

out of my gym.” After speaking with Defendant, Daniel Stell was overheard declaring Daniel

was going to pay C. Miller’s “truck a visit.” That night C. Miller’s rear-view mirrors on his Tundra

were demolished. See Exhibit A (APD Report). Defendant also published a video through the

@legionirongym Instagram, in violation of the TRO that night. Exhibit B.

October 26, 2018. Two days after being served, Defendant vacated the premises. He

refused to provide the information necessary to ensure the building could be secured. Mot at 3.

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 October 27, 2018. Defendant published an advertisement through the @legionirongym

Instagram, in violation of the TRO. See Exhibit C.

October 28, 2018. At night someone entered the gym, traversed a ladder, entered the

office, and removed a Toshiba laptop. The laptop is the property of UNM. It is registered with the

UNM Engineering program. Defendant is a graduate of the UNM Engineering program. The laptop

runs a Windows operating system, which is required to access and/or modify the padlock and

passwords for the entrance. See First Amended Complaint (the “FAM”).

October 29, 2018. Defendant directed Sean Killoran to deliver a piece of paper with the

password for the gym’s point of sales application as “SIMONISAPUSSY1”. See Exhibit D.

November 9, 2018. In between 2:15 a.m. and 3:00 a.m., someone entered the gym,

removed a 20-foot banner, and spray painted “worthless” on the gym wall. See FAM. The person

sawed off an electronic key padlock to the office door. See Exhibit E. The person also removed

locks from the side entrance. See FAM. Items missing include an iPad, a Dell Laptop, a wireless

internet modem, the Legion Iron banner, and a speaker from the sound system in the gym. See id.

November 12, 2018. Daniel’s significant other, Phoebe, entered the gym in the middle of

the night, and was apparently directed by Defendant to search get “his” speaker. See Exhibit F.

November 16, 2018. Defendant entered the gym at 4:36 a.m., went straight to the hall

closet where the security system is maintained, went to another room, grabbed a knife, walked

back to the hallway door, proceeded to pry open the door, and disabled the security system.

See Exhibit G. He then went to the office and disabled the surveillance cameras. See Exhibit H.

November 20, 2018. Defendant published the “Employee of the Month” and

corresponding narrative on Instagram under the @legionirongym Instagram. See Exhibit A to

Reply in Support of Emergency Motion, filed Nov. 21, 2018, incorporated herein under Rule 10.

4
 Later that day, Defendant and Daniel Stell entered the gym and disabled the surveillance

cameras. See Exhibit B to Reply in Support of Emergency Motion, filed Nov. 21, 2018.

November 25, 2018. Defendant published the “@LegionIronApparel” Instagram page,

with a link to apparel at masstheticsapparel.com. See Exhibit I.

November 26, 2018. Defendant, at bout 1:00 a.m., along with Daniel Stell, Sean Killoran,

and Christian Tafoya entered the gym, and removed the cameras. At 1:27 a.m., Plaintiff received

the following text message from Sean: “TOLD YOU FAG BOY”; “WE BACK AND ITS GARRETTS GYM”; “You

invest NOTHING in this place you own NOTHING step BACK you gigantic FAGGOT.” See Exhibit J. At 2:29 a.m.,

Sean wrote Plaintiff Otero again:

How disgraceful of you to ban my roommate, myself, phoebe, and cisco and others just
out of ASSOCIATING with Garret. You’re spineless, you have no work ethic. Your
vegan protein brand will never get off the ground because you have no money, unless
Weenie is bankrolling your ass. Im really sad for you. Life must be miserable being a
30+ nobody who had the chance to make it BIG and all you had to do was SHOW UP.
See you never. You’re welcome back anytime since your name is on the lease ONLY.
By we took all the chairs away so theres [sic] not much for you to do. See Exhibit K.

Plaintiff then received the following message, written by Defendant, from Christian:

He’s been working for me since day one you stupid fucking cocksucker. Everyone
has. You’re finished. See Exhibit L.

These events were apparently at the same time as the event depicted in Exhibit M.

III. RULE1-011NMRASANCTIONS.

Plaintiffs’ counsel committed no violations of Rule 1-011(A), which provides that the

signature of an attorney on a pleading affirms "the knowledge, information, and belief that there

is good ground" to support filing.” The “good ground” provision is a subjective standard and

violations depend on whether the attorney knew that a pleading should not have been brought.

Rivera v. Brazos Lodge Corp., 1991-NMSC-030, ¶ 18. Sanctions only appropriate “when a

pleading is unsupported by existing law rather than unsupported by facts.” Id. There was a

5
subjective, good faith basis for the Motion. The record speaks for itself on Defendant’s sanctions

request, and cross-motions are prohibited. See Rule 1-007.1(E).

Before the November 9, 2018 TRO hearing, Defendant violted it in the ways explained

herein. His abusive, threatening, intimidating, and indecent behavior continues today. In

circumstances like this, “[w]here 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, [] the injury is irreparable at law and relief by injunction is therefore appropriate.”

See Winrock Enterprises, Inc. v. House of Fabrics of New Mexico, Inc.,1978-NMSC-038, ¶ 6.

WHEREFORE, Plaintiffs request that the Court issue an order to show cause as to why

Defendant should not be held in contempt of court, issue an order as requested herein, and for such

other relief as is just and proper.

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) 318-1721
jonathan@jgarcialegal.com

I HEREBY CERTIFY that on the 26th 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
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Exhibit C

https://www.instagram.com/p/Bpc6Hv2AEGs/ Page 1 of 1
Exhibit D
Exhibit E
Exhibit E
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Exhibit M