STATE OF NEW MEXICO

COUNTY OF VALENCIA
THIRTEENTH JUDICIAL DISTRICT

MASSTHETICS, LLC, a New Mexico

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

Plaintiffs,
D-1314-CV-2018-1280
v.

GARRETT GONZALES,

Defendant.

GARRETT GONZALES’ RESPONSE IN OPPOSITION OF MASSTHETICS’ AND

LEGION IRON’S VERIFIED EMERGENCY MOTION FOR INJUNCTIVE RELIEF
AGAINST GARRETT GONZALES

Garrett Gonzales, by and through his undersigned counsel, respectfully requests that the

Court deny Massthetics, LLC and Legion Iron, LLC’s (hereinafter, where appropriate, collectively

“Simon Otero” or “Mr. Otero”) Verified Emergency Motion for Injunctive Relief Against Garrett

Gonzales (“Motion”). As explained herein, Mr. Otero’s Motion should be denied because

Mr. Otero lacks standing to pursue the relief requested in his Motion and in this lawsuit, and

because Mr. Otero cannot satisfy any of the four elements necessary for the extraordinary relief he

seeks.

FACTUAL BACKGROUND

Mr. Otero filed his initial application for a temporary restraining order and motion for

injunctive relief on October 19, 2018, in a case styled Legion Iron, LLC, et al., v. Garrett Gonzales,

No. D-202-CV-201807613 (Second Jud. Dist. Ct.). The allegations upon which the application

and motion were based are almost identical to the allegations made in this case. Notwithstanding

the identity of the two cases and, without notifying this Court that a related action was pending, or
that Second Judicial District Court Judge Shannon Bacon had already entered an order that placed

specific burdens on Mr. Otero in his pursuit of injunctive relief, Mr. Otero filed the instant

application for a temporary restraining order on October 23, 2018. Mr. Otero’s decision to go

forum shopping and failure to disclose critical information to the Court are reflective of his

haphazard litigation strategy.

To illustrate, Mr. Otero failed to provide the Court with any explanation as to how he is

legally entitled to any of the damages or relief he seeks in this lawsuit. He 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. Mr. Otero does not provide the Court with any

receipts, bank statements, or any evidence at all that he has made any monetary contributions to

the companies at issue. Mr. Otero does not allege that he secured any investors for the enterprise

– because he did not. And Mr. Otero does not even make the basic allegation that he was in any

way, shape, or form involved in the day-to-day operations of the companies at issue. Indeed, in his

papers, Mr. Otero does even not endeavor to make any attempt whatsoever to explain to the Court

how the – inaccurate – allegations made in his papers might support any legal theory advanced by

Mr. Otero. Mr. Otero failed to provide the Court with any of the aforementioned evidence, because

it does not exist. Mr. Otero concedes that “[t]he purpose of a temporary restraining order is to

maintain the status quo until the Court can adjudicate the merits.” See Motion at p. 3.

Notwithstanding this recognition, the temporary relief obtained by Mr. Otero and the permanent

relief that he seeks completely disregard the status quo.

For instance, Mr. Gonzales attaches as Exhibit A hereto the First Amendment and

Addendum to the Limited Liability Company Operating Agreement of Legion Iron, LLC (the

“Amendment”). Perhaps most importantly, the Amendment reflects that Mr. Otero consented to

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being removed from Legion Iron, LLC’s Operating Agreement during a July 6, 2018 meeting.

Accordingly, a 50% interest in Legion Iron, LLC is owned by Mr. Gonzales, and a 50% interest is

owned by Steven Peralta. See id. Furthermore, Mr. Gonzales and Mr. Peralta made capital

investments in the company. Mr. Gonzales secured all of the investments to date that have been

made in the company. Mr. Gonzales coordinated the construction and build up of the Legion Iron,

LLC facility. And, Mr. Gonzales has been in charge of the day-to-day operations of the gym.

Against this backdrop, justice demands that Mr. Otero’s request for injunctive relief be denied.

ARGUMENTS & AUTHORITIES

I. Mr. Otero lacks standing to pursue to the relief sought in this Motion and in this
lawsuit.

In New Mexico, “[o]ur current standing doctrine generally requires litigants to allege three

elements: (1) they are directly injured as a result of the action they seek to challenge; (2)

there is a causal relationship between the injury and the challenged conduct; and (3)

the injury is likely to be redressed by a favorable decision. These requirements are known in short

form as injury in fact, causation, and redressability, and are derived from federal standing

jurisprudence. ACLU of New Mexico v. City of Albuquerque, 2008-NMSC-045, ¶ 1, 144 N.M.

471.” In the case at bar, Mr. Otero cannot satisfy this standard because he cannot show that he will

be directly injured as a result of the action that he seeks to challenge. Mr. Otero was removed from

Legion Iron, LLC’s Operating Agreement in July of 2018. Mr. Otero is no longer a member of

Legion Iron, LLC. See the Amendment, attached as Exhibit A. Mr. Otero did not make any capital

contributions to Legion Iron, LLC. See id. And, Mr. Otero does not have any interest in the capital

value of Legion Iron, LLC. Because Mr. Otero lacks standing to bring the extant lawsuit, Mr.

Otero’s Motion should be denied.

II. Mr. Otero cannot meet the factors necessary for injunctive relief.

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 It is incontrovertible that Mr. Otero must satisfy four elements before this Court may

exercise its discretion to grant the extraordinary relief sought by Mr. Otero’s Motion. In particular,

Mr. Otero must prove 1) that he will suffer irreparable injury unless an injunction is granted; 2)

the threatened injury outweighs any damage the injunction might cause the Mr. Gonzales; 3) the

issuance of the injunction will not be adverse to the public interest; and 4) there is a substantial

likelihood that Mr. Otero will prevail on the merits. See LaBalbo v. Hymes, 1993-NMCA-010, ¶

11, 115 N.M. 314. Where a plaintiff fails to establish even just one of these required elements, the

trial court should deny the plaintiff’s request for an injunction. Id. Because Mr. Otero cannot satisfy

any of the four requirements for injunctive relief, the Court should issue an order denying Mr.

Otero’s Motion.

a. Each of the factors weighs in favor of denying Plaintiff’s Motion.

This lawsuit involves a business dispute, wherein all of the relief sought can be monetized.

It is well settled that “the mere payment of money is not considered irreparable [harm]….” Philip

Morris USA Inc. v. Scott, 561 U.S. 1301, 1304 (2010). Consequently, Mr. Otero’s Motion must be

denied because 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. See, e.g., Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758

F.2d 669, 674 (D. C. Cir. 1985) (“It is ... well settled that economic loss does not, in and of itself,

constitute irreparable harm.”).

For over 100 years, New Mexico courts have consistently held that injunctive relief is

inappropriate where, as is the case here, the only harm alleged by the plaintiff is monetary

damages. For example, in Crawford v. Longuemare, our Supreme Court held that it was a

“contradiction of terms” for the plaintiff to allege that his injuries were “irreparable” and then “in

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the same pleading estimate[] them in money.” 1919-NMSC-002, ¶ 3, 25 N.M. 267, 181 P. 283.

More recently, in Orion Tech. Res., LLC v. Los Alamos Nat. Sec., LLC, our Court of Appeals

affirmed the trial court’s denial of a motion for injunctive relief because “[m]oney damages [were]

available to [the plaintiff] in [that] case, and [the plaintiff] ha[d] not alleged any facts or made any

argument to persuade [the court] that money damages would not compensate it for the alleged

injury [t]here.” 2012-NMCA-097, ¶ 33, 287 P.3d 967.

Based on the well settled rule of law in New Mexico, Mr. Otero’s Motion should be denied.

Mr. Otero cannot simultaneously argue that he will suffer irreparable injury and fail to describe

any element of damages that cannot be compensated monetarily, as he has done in this case.

Because Mr. Otero has not alleged any facts that could persuade this Court that money damages

would not compensate Mr. Otero for his alleged losses, Mr. Otero’s Motion should be denied.

Second, the threat of injury to Mr. Otero, if any, is greatly outweighed by the damage the

injunction might cause Mr. Gonzales. The only potential injury that Mr. Otero alleges he might

suffer if an injunction is not granted is a loss of money. As explained above, the potential loss of

money is insufficient for the Court to grant the equitable sought by Mr. Otero. By contrast, Mr.

Otero’s request that Mr. Gonzales be banned from the physical premises of the companies and

prohibited from participating in Massthetics, LLC and Legion Iron, LLC’s essential functions

poses a significant threat to Mr. Gonzales. Unlike Mr. Otero, Mr. Gonzales has made significant

monetary and non-monetary contributions to both companies. 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. Moreover, unlike Mr. Otero, Mr. Gonzales has rights

bestowed to him by Legion Iron, LLC’s Operating Agreement and has an ownership interest in the

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company. Accordingly, Mr. Gonzales stands to suffer a much greater harm than Mr. Otero if

injunctive relief is granted in this case.

With respect to the third element, the interests of the public will be best served if

Mr. Otero’s Motion for injunctive relief is denied. To begin, Mr. Otero’s forum shopping in this

case should not be rewarded. The Court’s resources are scarce, and the public has a strong interest

in ensuring that those resources are put to good use. Filing two simultaneous lawsuits that are

almost identical factually and in their legal theories serves no legitimate purpose. Instead, this

practice delays justice for other litigants, interferes with the Court’s ability to reach a final decision

in this case, and indicates that Mr. Otero believes that this case can be won by choosing the correct

forum instead of on the merits. Moreover, the public interest cannot be served by allowing Mr.

Otero to takeover a company in which he has no legal interest. Mr. Otero does not have any interest

in Legion Iron, LLC and was removed as a member in July of 2018. 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. Public interest cannot be served by taking Mr. Gonzales’

property and giving it to Mr. Otero without any basis in law.

Fourth, as the movant and party seeking injunctive relief, Mr. Otero bears the burden of

proving that he will prevail on the merits. Mr. Otero, however, did not make any attempt to meet

his burden on this element. Mr. Otero did not reference any facts or legal arguments to support his

position that this element is satisfied. “[A]rguments of counsel are not evidence.” Muse v. Muse,

2009-NMCA-003, ¶ 51, 145 N.M. 451. Where “a litigant cites no authority for a proposition, [the

court] may assume no such authority exists.” Scorza v. Hankins, No. 29,729, 2009 WL 6593961,

at *1 (N.M. Ct. App. Nov. 23, 2009) (citing In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100

N.M. 764. Because Mr. Otero did not present any factual basis or legal authorities to support his

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argument that all four elements necessary for injunctive relief are satisfied, Mr. Otero’s Motion

should be denied.

Moreover, courts have consistently cautioned against granting injunctive relief where it

“would alter the status quo, such as the TRO [and injunctive relief] requested in this case….”

Jones v. Wells Fargo Bank, NA, No. CV 10-505 MV/LFG, 2010 WL 11622984, at *2 (D.N.M.

May 27, 2010). This is particularly true where the relief sought does not merely preserve the status

quo and effectively affords the plaintiff the merits relief sought in the lawsuit. See, e.g., Boyer v.

Karagacin, 178 Mont. 26, 34, 582 P.2d 1173, 1178 (1978), overruled on other grounds

by Shammel v. Canyon Res. Corp., 2003 MT 372, 319 Mont. 132, 82 P.3d 912. This is precisely

the case here. Mr. Otero’s requested relief has temporarily disturbed the status quo and, if

extended, would further distort Massthetics, LLC and Legion Iron, LLC’s normal operations. The

relief requested by Mr. Otero should only be afforded after a decision on the merits and not at this

stage of the proceedings.

III. Conclusion.

WHEREFORE, because Mr. Otero cannot establish any of the four elements necessary for

the equitable relief requested in his Motion, the Court should deny Mr. Otero’s Motion.

Respectfully submitted,

FREEDMAN BOYD HOLLANDER

GOLDBER URIAS & WARD PA

By: /s/ Frank T. Davis

H. Jesse Jacobus
Frank T. Davis
20 First Plaza, Ste. 700
Albuquerque, NM 87102
(505) 842-9960
(505) 842-0761 facsimile
hjj@fbdlaw.com
ftd@fbdlaw.com

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 Attorneys for Defendant

I HEREBY CERTIFY that on the 13th of November

2018, a copy of the foregoing pleading was sent
via email to all counsel of record.

/s/ Frank T. Davis

Frank T. Davis