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Goldberg v. Barreca

United States District Court, D. Nevada

August 24, 2017

SHELDON F. GOLDBERG, et al., Plaintiffs
v.
JACK BARRECA, et al., Defendants.

          ORDER

         Presently before the court is an "emergency" motion for reconsideration of this court's orders denying plaintiffs' motions for a temporary restraining order (TRO) and preliminary injunction. (ECFNo. 10). The motion is denied.

         I. Facts

         The present emergency motion is the most recent installment in a series of purported emergencies in a case about margaritas. (ECF Nos. 10). On August 4, 2017, plaintiffs filed a complaint against defendants in this court alleging nineteen causes of action. (ECFNo. 1). On August 7, 2017, plaintiffs filed an emergency motion for a TRO and for the appointment of a receiver or trustee. (ECF No. 4). On the same day-in an identical document-plaintiffs moved for a preliminary injunction. (ECF No. 5).

         On August 8, 2017, this court received defendants' pro se response to plaintiffs' motion for a TRO. (ECFNo. 6).[1]

         In their motions, plaintiffs recited a detailed history of a business relationship between plaintiffs and defendants. In a nutshell, plaintiffs alleged that they invested over $220, 000 in a joint business venture with defendants for the purpose of manufacturing and selling a margarita product with plans of creating a company for this purpose going forward. (ECF Nos. 4, 5).

         Plaintiffs allege that the defendants encouraged the plaintiffs to continue investing in the venture with assurances that the plaintiffs were considered partners and would reap a share in the profits from the sale of the product. However, plaintiffs claim that when the time to bottle the product drew near, defendants changed their position and indicated an intent to treat plaintiffs' investments as a simple loan and not share the profits. A distillery in Florida was ready to bottle the margarita product as early as August 7, 2017, and plaintiffs claimed that if this court allowed the Florida distillery to release the bottled product to the defendants thereafter, the defendants would then sell the product and "take the money and run-perhaps even skip town ([defendant] Jack has no family in Las Vegas)." (ECF No. 4 at 2, 15-16). Plaintiffs alleged that their investment is "tied up" in the margarita product and if this court "does not intervene, all will be lost, " and ". . . the only major asset of the Partnership (the margarita product) would be gone." Id. at 15. Plaintiffs further asserted that the defendants intend to "traffic liquor" in violation of Nevada liquor law. (ECF No. 4 at 16). Finally, plaintiffs argue that allowing the defendants to receive the margarita product after bottling would mean that third parties "would likely get access to the margarita product and related intellectual property and trade secrets rightfully owned by the Partnership" of which the plaintiffs purport to be a part. Id. at 15.

         Accordingly, in the motions for a TRO and preliminary injunction, the plaintiffs requested that this court enter a twelve-paragraph order detailing the required and proscribed conduct of the defendants going forward in relation to this margarita product venture, including among other things, that the defendants "shall not in any manner sell, grant, transfer ... or otherwise encumber . . . any product or other property attributable with any interest to . . . any or all of the Defendants, any or all of the Plaintiffs, the Partnership Agreement, and/or a partnership between [the parties] currently located at Florida Distillers' facilities"; that "Defendants shall allow product to be bottled by Caribbean Distillers . . . ('Florida Distillers') . . . but any and all [of this product] . . . must remain and be stored at the Florida Distillers' facilities pending further order of the Court"; that defendants deposit into a trust account or with the court any proceeds from the sale of the margarita product; and that defendants shall somehow "allow" plaintiffs to enter the premises and facilities of the Florida Distillers-a non-party to this action. (ECF No. 4 at 13-14). Further, plaintiffs requested that this court appoint one of the plaintiffs, Sheldon Goldberg himself, as either a receiver or trustee of the business venture. Id. at 24-26.

         On August 9, 2017, this court entered an order denying plaintiffs' motion for a TRO. (ECF No. 7). On August 10, 2017, this court entered a nearly identical order denying plaintiffs' motion for a preliminary injunction. (ECF No. 8). In each order, this court explained that "whatever merit plaintiffs may have in their ability to demonstrate a likelihood of success on the merits" of their claims, this "does not, without more, warrant this court's intervention" because the other three elements required for this court's extraordinary injunctive relief in the form of a TRO or preliminary injunction were not satisfied. (ECF Nos. 7 at 6; 8 at 6) (emphasis added). Of particular note, this court explained that the harm plaintiffs alleged is not "irreparable" because, if plaintiffs' claims are truly merited, this court may enter a money judgment in their favor at the conclusion of this case designed to make the plaintiffs whole. (ECF Nos. 7 at 4-5; 8 at 4-5). The court also explained that the balance of hardships and public interest weighed heavily in favor of the defense. (ECF Nos. 7 at 5-6; 8 at 5-6). Finally, the court noted that several of plaintiffs' allegations-for example, the allegation that Jack Barreca might "skip town"-were speculative and hypothetical and therefore inadequate for injunctive relief. (See, e.g., ECF Nos. 7 at 4-5; 8 at 4); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th Cir. 2011).

         On August 14, 2017 (four days after the court's last order and one week after the plaintiffs filed the original motions for injunctive relief), plaintiffs returned to this court with an "emergency" motion for reconsideration of both the order denying the requested TRO and the order denying the preliminary injunction. (ECF No. 10). To this new motion, plaintiffs now attach about 230 pages of exhibits, and in roughly 140 pages of which plaintiffs claim to set forth "new facts, evidence, and issues" they did not present to the court when they filed their original motions only a week prior. (&eECFNo. 10-2). In a 32-page, single-spaced declaration, [2] plaintiff Sheldon Goldberg walks through plaintiffs' newly-attached evidence. Id. at 2-33. In summary, he explains:

The newly acquired documents explain why [defendant Giacomo "Jack" Barreca] breached his agreement with Plaintiffs and had no intention of ever[] honoring it from the beginning. The following previously unavailable evidence is proof that Defendant Jack Barreca is a fraud and had fraudulent intentions from the beginning. Plaintiffs entered into their agreement with Jack on good faith but the evidence will now document that Jack entered it to defraud Plaintiffs.

(Id. at 2). Accordingly, in the instant motion, plaintiffs argue that "there are new facts, evidence, and issues" that warrant reconsideration. (ECFNo. 10 at 2). In summary, plaintiffs argue that the "new" evidence shows as follows:

         a) A "recently discovered" letter shows that defendant Barreca fraudulently promised the same margarita product to two different investors (including plaintiffs and another individual) who did not know of each other's involvement, to be delivered at the same time and place at the same event, and fulfilling both promises would have been impossible; therefore, Barreca "cut out" plaintiffs of the deal;

         b) A "recently discovered" contract shows that Barreca does not have his own special liquor license, and the margarita product "may and likely will" be shipped under the "bottler's" license;

         c) In a "recent" conversation with the bottler, plaintiffs learned that Barreca "did not have a facility or license to produce the margarita product and that the bottler could be used to that end";

         d) "In an email recently receive[d] from the bottler, Plaintiffs learned of a new type of irreparable harm and injury being caused by Defendants-the loss of Plaintiffs' rights, as partners, to equal access, control, and rights to the margarita product and the margarita venture. They also learned that as a licensed Nevada supplier who sent an invoice for the margarita product to Nevada, which invoice Plaintiffs paid in full, the bottler was ready, willing, and able to abide by any TRO the court may issue.";

         e) "A recently received declaration of [a] third-party witness shows how Jack defrauded Plaintiffs in that he held out Sheldon as a partner, but refused to take action he promised Sheldon would take";

         f) Plaintiffs make a new argument regarding why an arbitration clause is not enforceable; and g) In light of all the recently obtained information and evidence, "[p]laintiffs have substantially ...


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