United States District Court, D. Nevada
SHELDON F. GOLDBERG, et al., Plaintiffs
JACK BARRECA, et al., Defendants.
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
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).
August 8, 2017, this court received defendants' pro
se response to plaintiffs' motion for a TRO. (ECFNo.
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).
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.
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.
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).
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,  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:
"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
"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";
"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.";
"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";
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 ...