2 8 4 5 6 1” 18 9 20 a 2 2B 25 26 a 28 Electronical Filed (0410872017 0348-13 PM DAVIDZ. CHESNOFF ESO. An Boren Nevada Bar No, 2292 ‘CLERK OF ME coURT RICHARD A, SCHONFELD, ESQ, Nevada Bar No. 6815, CCHESNOFF &SCHONFELD '520 South Fourth Steet Las Vegas, Nevada $9101 ‘Telephone: (702) 384-5563, Attorneys for Defendant SpeedVegas, LLC ROBERT F. SCHUMACHER, ESQ. ‘Nevada Bar No, 7504 GORDON & RES 300 South Fourth Street, Suite 1550 as Vegas, Nevada $9101 ‘Telephone: (702) $77-9300 Altomeys for Defendant SpeedVepas, LLC DISTRICT COURT. COUNTY OF CLARK, STATE OF NEVADA FRANCISCO DURBAN, an Individual, Plains, CASENO, a-17-752705-C SPEEDVEGAS, LLC, Nevada limited Hebi compari; WORLD CLASS DEPT. NO.XV ah unkown foreign ety SCOTT GRAGSON, and individual end OES 1X and Corporation ROE ENTITIES 1, clswve Defendants PEEDVEGAS* OPPOSITION Y MOTION ‘SPEEDVEGAS" OPPOSITION TO FRANCISCO DURRAN’S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION COUNTER-MOTION FOR ATTORNEY'S FEES AND COSTS COMES NOW, SPEEDVEGAS by and through his attorneys David 2. Chesnol, Esq, Richard A. Schonfeld, Esq. of the law offices of Chesnoff& Schonfeld and hereby submits its Opposition 1o Plant Francisco Durban's Emergency Motion for Temporary Restraining Order and Preliminary Injunetion,SpeedVegas further seeks an award of atorney’s fees for having to respond to the Plaintiff's Motion ‘This Opposition is made and based upon the papers and pleadings on file herein, the attached Memorandum of Points and Authorities the atached AfTidavits and Exhibits, any evidence presented, and any oral argument heard Respectfully submitted: (CHESNOFF & SCHONFELD me iD ‘OFF ESQ, Nevada Bar No, 2292 RICHARD A. SCHONFELD, ESQ. Nevada Bar No, 6815 520 South Fourth Street Tas Vegas, Nevada 89101 ‘Telephone: (702) 384-5563, Attorneys for Defendant SpeedVepas, LLC GORDON, ROBERT EF: SCHUMACHER, ESQ. Nevada Bar No, 7504 300 South Fourth Street, Suite 1550 Las Vegas, Nevada 89101 ‘Telephone: (702) 577-9300 “Attorneys for Defendant SpeedVegas, LLC‘TABLE OF CONTENTS 1 INTRODUCTION. ‘A. History of Speed Vegas B, The Instant Complaint and Motion - A Summary ofthe Issues I, STATEMENT OF ADDITIONAL FACTS Ul, LEGAL AUTHORITY . A. INIUNCTIVERELIEF IS NOT APPROPRIATE i. TRIE PLAINTIFF CANNOT SUCCEED ON THE MERITS FOR SEVERAL REASONS a, The Plaintiff has not been Terminated. b. The Plaintf’s Claim isnot Ripe. © The Workplace Environment isnot Unsafe i, THEPLAINTIFFCANNOTESTABLISHIRREPARABLE HARM. . , Additional Basis for Finding Unclean Hands. Page 2 2 B 3 14 Is 8 2 ii, THE BALANCE OF HARDSHIPS WEIGH HEAVILY IN FAVOR OF SPEEDVEGAS. i THE PUBLIC INTEREST IN THIS LITIGATION FAVORS THE COURT DENYING INJUNCTIVE RI \._ IRANYINIUNCTIVERELIEFIS GRANTED THEPLAINTIFFMUSTPOST AN APPROPRIATE BOND. B. PLAINTIFF'S, COUNSEL MAY HAVE A CONCURRENT CONFLICT. OF INTEREST THAT CANNOT BE WAIVED. 24 ©. PLAINTIFE FILED & COMPLAINT. WITH OSHA, AND TIE REQUESTED INJUNCTIVE RELIEF IS PREEMPTED BY OSHA JURISDICTION. D. PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES. : E, CONCLUSION COUNTER-MOTION FOR ATTORNEY'S FEES ... » 30VTS AND (TIES 1. INTRODUCTIO! A. History of SpecdVegas: ‘Speed Vegas is a road course facility that was built on 100 Acres of property located at 14200 8. Las Vegas, Boulevard. The facility includes the road course (“rack”), along with 222,000 square foot building that houses meeting space, retail shops, briefing rooms, a coffee shop, viewing terraces, and administrative offices. See Exhibit A (pictures ofthe Speed Vepas facility). The facility was designed and built to meet or exceed Federation Internationale de VAutomobile ("FIA") Level 2 standards and National Fire Protection Associaton ("NFPA") 610 guidelines. These ae the prevailing standards in the industry. ‘The SpeedVegas property was purchased as undeveloped land in November of 2013, Shortly afer purchasing the land, Aaron Fessler, the CEO of SpeedVegas began his earch for an expert track designer. Mr, Fessler was introduced to Rober Barnard in March of 2014, Mr Barnard is nationally recognized as a leader in the industry of track design and engineering. His design expertise was utilized on such courses as the world famous Daytona International Speedway, the Australian Formula One Grand Prix, the Adelaide Formula One track, and the Philip Island MotoGP, the latter two remain to this day icon tracks judged to be the benchmark in that industry Mr. Bamard’'s Affidavit and Curiculum Vitae are attached hereto as Exhibit B More specifically, Mr. Bamard acted as the Engineering Project Manager forthe inaugural Australian Formula One Grand Prix, where he led the team responsible for planning, design, “There are several different eategories of automobile races. Formula racing i the best known, variety of single-seater racing, and are similar to the Indy racing vehicles, Kart racing is a another format of single-seater racing and uses a small less expensive vehicle. Usually, kart racing is performed at the entry level of a professional driver's career. NASCAR uses stock cars which resemble production eas but are purpose-built racing vehicles, MotoGP i a type of motoreyele racing.‘manufacture, installation and operation of al the facilities. Thereafter, Mr. Bamard’s company was responsible forthe redesign and reconstruction of the Philip Island Circuit. Subsequently, Mr. ‘Barnard designed and built the Easter Creek cteit in Sydney, Australia, Tn 2004 he was heavily engaged inthe redesign and rebuild ofthe world farnous Daytona International Specdvay. In2012, ‘Mr. Barnard completed the construction ofa CIK Standard kat tack in Mooresville, Noth Carolina. That track has becn recognized for its design and engineering. In 2015, Me. Bamard completed the new kart track a the Monticello Motor Club in New York, private upseale country club for car enthusiasts. Mr. Bamard was retained by Speed Vegas to design the track, define safety and operation protocol, and deliver an Emergency Action Plan (“EAP”). SpeedVegas and Mr, Barnad started track design in November of 2014. The first layout forthe track was delivered on November 20, 2014, and over the next 9 months SpeedVegas and Robert Barnard performed studies and fine tuning ofthe plans. ‘The design of the tack was completed in August of 2015 and Speed Vegas broke ground in September of 2015, The groundbreaking was attended by County Commissioner Steve Sisolak, the ‘general public, and atleast 100 local casino executives as Speed Vegas is tourist oriented and would to recommend to their clients. prove to be a great recreational activity for the casino exec Attached hereto as Exhibit C are pictures from the groundbreaking, Constrction lasted frm September of 2015 until September of 2016. During the construction of Speed Vegas approsimately $00,000 cubic yards of dit were removed. The total cost ofthe SpeedVeyas project was $30,000,000, Sinee the opening of Speed Vegas it his provided services and unique diving experiences to approximately 30,000 guests and it curently employs 85 people ‘Guests of Speed Vegas have included professional racecar drivers such as Michael Waltrip ‘of NASCAR, Andy Pilgrim of NASCAR, Noah Gragson of NASCAR, BJ. Baldwin a seven timeu 2 13 14 15 16 7 18 19 20 a 2 2 24 2s 26 7 28 off road racing national champion, and JJ. Yeley of NASCAR who drove the track just few weeks ago. Non-tace car celebrities have also enjoyed the Speed Vegas facilites. Atached hereto as Exhibit Dis an article ftom the Las Vegas Review Journal reflecting the same. In addition to the foregoing, in August of 2016, Rolls Royee ulilized the tack as test facility for the hunch of a new model. Attached hereto as Exhibit E are the photographs of that event, Both Forbes and Men's Journal wrote articles about the vehicle debut andthe experience at SpeedVegas". Infact, SpeedVegas is written up in this month's issue of Automobile Magazine See Exhibit F. Plant, an at-will employee of SpesdVeeas, seeks to shut dow a $30,000,000 business that employs 85 people instead of pursuing financial remedy inthe event that he ean ever establish that he was in fact wrongly terminated. As desribed below, there has been no detemination of ‘hat caused the fatal accident. Its absurd to suggest it isa design failure when there is evidence 19 suggest thatthe driver suffered a medical condition that may have caused the fatal ersh, This sa classic example of the misuse of th Ws ‘While the Plait? will attempy to cloud the issue by suggesting tis isan issue of “public safety” iis not, Plaintiff does not have standing to seek an injunetion for “public safety". That is OSHA's job, and after multiple visits to the Speed Vegas track’, OSHA has not issued an order of abatement or injunction, which is an administrative tool available to OSHA ifit believes that an unsafe condition exists. See, NRS 618.545. The reality is that the tack, the facilities, and the safety protocols exceed industry standards. “aps fees combitevnarhawing/01607/30ack:-bage-wraiholl-royee-bullds-abadasperforman cecarF36bS6S4Sce tips mensjouma om /earlaice/-et-rive-in-he-350000-2017-olleayce-bach-tadgo-ntS8606 NOSHA has been given full cooperation by SpeedVegas. 3u 2 8 “ 1s 6 ” Is 9 20 21 2 2 24 2s 26 2 28 must also be Kept in mind thatthe issue isnot whether racing ears isa dangerous activity. NASCAR, Indycar, and Kart racing have accidents and fatalities. Attached hereto as Exhibit Gisa ‘chatt identifying the 96 driver fatalities that have occurred in Indyear. ‘The list includes fatality at hibit Hi alist of NASCAR the Las Vegas Motor Speed Way in 2011. Attached hereto a fatalities that have occurred, Included in that Exhibit is alist of driver fatalities caused by a medical condition. ‘This is significant asthe eause of the rash in the instant case has not yet been determined, and evidence outlined below would suggest the possibility that a medical episode is ‘what led to the crash Speed Vegas, ater having 30,000 guests diving approximately 100,000 laps, had no ‘customer injuries prior othe incident in question, The instant cas arises from a crash involving a fatality; however, as described herein, thor is evidence to suggest tha the crash may have been the result of medical episode, It should also be noted that SpecdVegas’ competitor, Exotics Racing, provided an Affidavit in support ofthe Motion for Temporary Restraining Order, an filed to {inform the Cour of the multiple accidents at ther faiity that este in broken legs, broken arms, broken hands, and other injuries. See Exhibit I, Affidavit of Aaron Fessler. [Exoties Racing and Roman Thievin also filed to inform the Court of their litigation history with SpeedVegas, ‘The fact that Plaintiff has secured an Affidavit from a direct competitor of ‘SpeedVVegas and asks this Honorable Court (0 utlize that Affidavit as reliable “expen estimony is troubling without disclosing thet history ‘The question presented for the Court is not whether race car driving is dangerous. Rather, in the event that Plaintiff ean first establish that he was actully discharged and meets the other ‘elements of injunctive relief, which he does not, the question then will be whether the track design ‘at Speed Vegas fils to meet industry standards for design safety. ‘The testimony below, provided by three internationally recognized experts, is based upon reliable methodology and industry standards. “These experts unequivocally state that there are no inherently unsafe aspects of the Speed Vegas ust standards track and it meets or exceed‘The Instant Complaint and Motion - A Summary of the Issues: ‘The Plaintiff has filed a Complaint alleging a single cause of action for which he also socks injunetive relief, The single eause of action is for alleged wrongful termination for “refusing to ‘work in an unsafe workplace”, What the Plaintf? deliberately fails to inform the Courts that he ‘was never discharged, but instead he was given several continuing employment options: 1. Continue to work, provided that he passed certain safety protocols; 2. Work in the Speed Vegas onsite office's 3. Wait sixty days while modifications are made to the track’. Attached hereto as Exhibit Js letter from Francisco Durban to SpesdVegas (which was carbon copied to his counsel Mr, Marks, so he was clessly epresented atthe time) demonstrating that Plaintiff was given options and was not terminated under any analysis, The letter was writen ‘on Match 24,2017, and Plant elected option number three, to wail sixty days, Accordingly Plant's alleged claim isnot viable and could not conesivaby be ripe until May 24,2017, as he clearly has not been terminated, ‘Moreover, SpeedVegas is willing to waive the non-compete provision associated with Plaintiff's employment at Speed Vegas if Plaintiff should choose o lave his employment. See Exhibit, Declaration of Aaron Fessler, CEO of Speed Vegas. “It should be noted that while Plant did not include itn the letter, he was also advised he could work in Pit Lane, assist in the shop, assist with track maintenance, and work in guest hospitality "As evidenced in his Opposition, the tack is not dangerous and meets or exceeds the standards inthe industry. Accordingly, the modifications proposed are not an admission of any danger, and fall within subsequent remedial measures which cannot bea factor for ‘consideration herein. NRS 48.095(1). ‘It should be noted that even afer filing the instant lawsuit Plaintiff attended an all staff safety meeting on March 21, 2017. Accordingly, Plaintiff cannot argue thatthe sixty day break starts from any date other than March 24, 2017, when he gave notice to SpeedVegas, 5‘Accordingly, the simplest analysis herein isto deny the Motion because Plaintiff has not ‘been terminated and therefore has no viable cause of action. Nevertheless, Speed Vegas will address Plaintif's other arguments, While Plaintf?'s Complaint does not allege a theory by which PlaitifT was teminated, the Motion eludes to a theory that PlaintifT was constructively terminated. Not only is that inconsistent ‘with Platts letter dated March 24, 2017, itis also contrary to well founded ease law that when offered reasonable altemative employment duties, there cannot be a claim for constructive ‘ermination (emphasis added). That case law i outlined below. As.a result of the foregoing, Plaintiff cannot demonstrate a likelihood of success on the merits in this ease’. Equally compelling, is the inability for PlainttT to establish irreparable harm. Even if Plaintiff was constructively ferminated, whieh he was not, how does shutting Speed Vegas down prevent his “treparable harm”? ‘Moreover, monetary damages would be easy to calculate ‘Speed Vegas has provided this Honorable Court with three expert Affidavits outlined below, including that of Mr, Barnard, Mr. Barnard atests in his AMidavit that the track exceeds industry standards for safety. By comparison Plaimff’s supposed “experts” reference mo industy standards in rendering their opinions. Speed\ega also had Aaron Weiss, the over of AMW Motorsports Consulting inspect the ‘wack aftr the incident in question. See Exhibit K Affidavit of Aaron Weiss. Aaron Weiss isa highly regarded expert in global motorsports landscape, Mr. Weis has over 20 year of professional experience and was 8 pioneer in the industry by seting standards and guidlines with respect othe racing commnity, As stated inthe Affidavit of Mr. Weiss, he performed an extensive review of the SpeedVegas facility and operations. After performing the review Mr. Weiss “Te should be noted that Plaintiff carbon copied his counsel Mr. Marks on that letter. Counsel should know thatthe Complaint and the instant Motion lack any merit whatsoever in light of| the options given to Plaintiff relative to his employment at SpeedVegas. 6concluded that “there is nothing inherently dangerous in either the design or operating procedures of| that there are no changes in the operational, fet SSpeedVegas.” Mr. Weiss futher o ‘maintenance, or track design that would have prevented tis incident. Me. Weis also reached the pinion tha he incident in question may have been the result ofthe river having a medical nisade. This opinion is supported by the Affidavit of Kyle Weech wherein he referenced a conversation with Mr. Ipckian (the driver Mr. Sherwood’ friend) afer he inedent in which he was informed that Mr. Sherwood had a medical condition that caused seizures. See Exhibit L. Mer. Weiss: the following prior to rendering his opinions: 1.) Requested and reviewed all emergency action plans as provided by SpeedVepas; 2.) Thoroughly reviewed of all Speed Vegas consumer facing material; and 3.) Viewed all available online videos of prior customer experieness. Mr. Weiss then traveled to Las Vegas and performed an extensive review of the SpeedVegas ‘cility and operations. His review ineluded: 1.) Attendance atthe SpeedVegas facility as a paying ‘customer concealing his identity as industry consultant; 2.) Informal conversations with staff and ‘other customers; 3. Attended a Speed Vegas driver briefing; 4.) Completed $ laps ina Porsche GT3 RS with a SpeedVegas instructor; 5.) Returned the following day and completed an extensive site inspection while facility was closed; 6.) Conducted interviews with various members of SpeedVegas staff; 7.) Reviewed data stream from the car involved inthe incident from ‘SpeedVegas’ tracking software; 8.) Reviewed written statements ffom scene; 9.) Reviewed photos from the scene; and 10.) Reviewed video from the scene. See Exhibit K. ‘SpoedVegus alo consulted with Ben Wilshire, the Managing Director of Driven Inernational, Mr. Wilshire's background includes graduating witha Fitst Class Honors Degree in “Motorsport Technology and Management, and over 1! years working in motorsport design, Mr. Wilshire founded Driven International, a company focused on providing design, sustainability and operational solutions to sports and leisure venues with a focus on motorsports. Driven International hhas worked on projects in the United States, the United Kingdom, North and South America,Russia, South East Asia, and China. Mr. Wilsite came othe track to perform an inspection and found no inherently unsafe aspects ofthe tack design. Me, Wilshire attended SpeedVepas disguised as a paid customer, had conversations with staf attended the dive bien, completed five lps on the track, retuned to inspect the tack when it was closed, and reviewed data stream from the Lamborghini, Mr, Wilshire then undertook an analysis ulizing the indus standard race track and datalogging computer simulation software. He then took the sped data derived from the simulations and applied principles adopted from the FIA guidelines for Motor Course Construction Safety, and reached the conelusion that there is nothing inherently dangerous with regeds to the location of barriers or runoff allowances at Speed Vegas, See Exhibit M, Significantly, the insurance company that provides ample insurance coverage to SpeedVegas inspected the rack after the incident in question and renewed the insurance policy. See Exhi renewal of insurance policy dated February 15, 2017. This is most telling Plaintiff references his complaint co OSHA. SpeedVegas has cooperated with OSHA during multiple visits after the i ident in question and has received no direction to close the tack. OSHA is vested with the duty to issue emergeney orders restraining activity iit is deemed by OSHA that a danger exists that could reasonably be expected to cause death or serious physical harm. See NRS 618.545, No such order as been entered in iscase. The fact that OSHA bas the authority to issue an order forthe relief that Plain is requesting herein is significant, considering that counsel Janieee Marshall has besn in contact with OSHA and no order as been issued. See Afidavit of J under investigation, Affant requested that OSHA close the Racetrack or issue an onder of *e M, Marshall page 4 of 2, paragraph 4 (‘OSHA advised ACiant thatthe Fatal Crash is still, abatement, requiring the Wall 10 be moved"). The incident in question occurred on February 12, 2017. Rather than taking “no” for an answer from the ageney responsible forthe safety of the public and workers, the Plaintiff chose to waste this Honorable Court’ time and resources with this action,2 B 14 1s 16 7 18 19 20 2 2 23 4 25 26 a 28 ‘The basis upon which the Motion for Injunetive Relief must be denied are: 1. Plaintfhas not been terminated and his claim is no ripe; 2. Plaintiff cannot establish irreparable harm and comes to this Court with unclean hands; 3. SpoedVegas isa safe work place environment; 4. ‘The balance of hardship weighs in favor of Speed Vepas and its 85 employees being able to ‘maintain their employment; 5, Public Interest, if one exits, favors the 8S other employees of Speed Vegas mainaining theit ‘employment; 6, _I'a Temporary Restraining Order or Preliminary Injunction is issued the Court should ‘require Plaintiff to post a significant bond commensurate withthe economic harm it will ‘cause SpeedVegas fo be closed for any period of time; 7. PlaintfP's counsel may have a conflict of interest that eannot be waived; 8. Plaintif filed a Complaint with OSHA and the requested injunctive relief is preempted by OSHA jurisdiction: 9, Plaintiff has filed to exhaust his administrative remedies; I, STATEMENT OF ADDITIONAL FACTS: “The SpeedVegas facility was well planned in design, operation, and safety. SpeedVegas provides its driving coaches with track instruction and safety instretion prior to their participation with customers, The coaches are required to pass a multi-day rigorous sereening test that evaluates their professional and racing history, situational avarenes, and track coaching competeney. (The ‘Training guideline can be provided tothe Cour for In Camera inspection as itis a proprictary business record). For the most pat, the coaches had prior careers as race car driversSpeed Vegas also ullizes a safety vehicle om its premises, manned with to trained responders in the event of an emergency. Contrary to Plaintiff's assertions, that the safety vehicle ‘as located within $00 feet ofthe erash at issue and responded to the scene within 17 seconds ofthe crash, See Exhibit 1. That safety vehicle was manned by two people, Leslie Williams, who was @ professional firefighter forthe City Pensacola from May of 1992 until August of 2015, was one of those people, See Exhibit. Mr. Williams states that he arrived on scene and immediately responded. They had approximately & fire extinguishers availabe for use in their attempt to extinguish the fire SpeedVepas has many documented policies. Policies exist for garage safety inspections and maintenance ire safety regulations and protocols and facility inspections. SpeedVegas has routinely scheduled inspections to insure compliance withthe guidelines that arin place, See Exhibit, Affidavit of Aaron Fessler. The manuals canbe provided tothe cour fori cmera Inspection as they are proprietary business documents SpeedVegas has state ofthe art exotic motor vehicles that are utilized on the tack. ‘The vehicle in the erash at issue was a 2015 Lamborghini Aventador that would have a current retail ‘value of approximately $400,000, See Exhibit P, Carfax printout, As evidenced in the Carfax ‘rintout the vehicle dd not havea salvage til, didnot have open recalls, and had no reported accidents or damage. The service record forthe vehicle also evidences that there were no inherent ‘mechanical problems with the vehicle. Is believed thatthe recall that Pain references was issued ater the incident in question, and SpeedVegas had not received noice ofthe rec at dhe time of the incident in question ‘The Plaintiff suggests that Speed Veyas removed expensive brakes from the veicle so that they could be replaced with less expensive brakes. That reason defies logic. Why would *SpeedVegas has not analyzed whether or not the recall has any relevance tothe i {question and therefore is reserving all sights in that regard, 1010 " 2 B “4 15 16 7 18 19 20 a 2 24 2s 26 2 2% ‘SpeedVegas remove expensive brakes that were already paid for simply to replace them with a less expensive product? The reality is thatthe stel brakes that were utilized by SpeedVegas on the hibit Q. Affidavit of Paul Crifas. Attached vehicle were a better product for track purposes. See hereto as Exhibit Ris report and an article authored by Mike Ow the company Girodise. ‘That company manufactures the steel brakes at issue. As stated in those documents the earbon ceramic products that come with the vehicle “run very hot and temperatures above 1400 degrees are commonplace when used on track... Te report further states ..the fatal flaw with carbon ceramic rotors is thatthe ..rotors literally start to disintegrate.” IL is not uncommon to “see piston ‘seal filure inside calipers. due to extreme heat.for people that are new to driving high performance vehicles in track conditions this can lead to very unsafe conditions." The report continues to explain the benefit of cast Iron brake products and states “There’s a reason 99% ofall ‘major racing series, including several that we provide rotors fo, you'll find ears running two piece ‘cast iron rotors.” The second article titled “Iron vs. Carbon Ceramic Brake Discs” father explains the benefits of the Iron brakes. Plaintif's suggestion that the brake pads were changed for an ‘economic advantage are unfounded and untrue. Its absurd that PlaitifT would complain in his motion that SpeedVegas has not undertaken ‘an investigation of the Lamborghini Aventadar to determine ifthe brakes caused the secdent. See Motion page 16 0f22 at lines 12 to 16, Plant's counsel sent a preservation letter on behalf of Gil Ben-Kely on February 17, 2017. Is this Plaintf?'s attempt to have Speed Vegas perform expert inspections on the Lamborghini so that it can be argued ina later case that evidence has boen spoiled? While SpeedVegas would like to perform expert examinations on the vehiele they ane {aking the cautious approach relative to preservation Defendant will address addtional facts below that make it clear that not only would it be inappropriate to issue injunctive relief, but also that Plaintiff's Complaint will not survive a Motion (0 Dismiss.IM, LEGAL AUTHORITY: A. INJUNCTIVE RELIEF IS NOT APPROPRIATE: ‘The Nevada Supreme Court has held that injunctive relief is available where: (1) the party seeking such relief enjoys a reasonable likelihood of success on the merits, and (2) the party's conduct tobe enjoined, if permitted to continue, will esutin ieparable harm for which compenselory damages are an inadequate remedy. See Sobel v. Capital Management Consultants Inc, 1O2Nev. 444, 446,726 P.2d P24 335, 337 (1986); Se also Dison v. Thatcher, 103 Nev. 414, 415, 742 P.2d 1029(1987). The Court may also consider two additional factors: (1) the relative interests ofthe parties~ how much damage the plaintiff will sufer if injunctive rele is denied versus the hardship tothe defendant if injunctive reliefs granted, and (2) the interes the publi may have inthe litigation, ifany. See Home Finance Cov. Baleom, 61 Nev. 301, 127 P.2d 389 (1942); Ellis. MeDaniel, 95 Nev. 455, $96 P.2d 222 (1979), Injunctive relief i an exclusively equitable remedy. Sherman v. Clark, 4 Nev, 138 (1868), NRCP. 65 recognizes three types of injunctive orders: (1) temporary restraining orders, (2) preliminary injunetions and (3) permanent injunctions. N.RS. 33.010 makes it clear that the factors outlined above are tobe analyzed a it relates to ‘the Plaintiff only and the claims that the Plaintiff raised inthe complain, Plaintiff does not have standing to assert claims and/or allegations of an unsafe environment forthe benefit of any third parties. OSHA has that responsibility and has not issued an injunction or order of abatement. “The purpose ofa temporary restraining order, which is ofa limited duration, isto check. imcparabe harm to preserve the status quo pending shearing onan application for preliminary injunetion under NRCP 65(a). Compare Zupancie» Sierra Vista Recreation, Ine, 97 Nev. 187, 625 P.24 1177 (1981); Granny Goose Foods, ne. v, Brovherhood of Teamsters and Au Truck Drivers, Local 70,415 US. 423, 94 S.C 1113 (1974) and Dow Chemical Company Blum, 469 F.Supp. 892 (E.D.Mi 1. 1979) finterpreting the parallel Federal Rule of Civil Procedure, 65(b)]).2 3 “4 Is 16 0 18 19 20 a 2 2 24 2s 26 n 28 As referenced above it defies logic to suggest that SpeedVegas needs tobe temporarily losed pending a Preliminary Injunction hearing inorder to “preserve the status quo”. What status «quo is Plait atempring to preserve? Plainti cannot in good faith suggest that monetary «damages would be an inadequate remedy necessitating a temporary restraining order before full hearing takes place on the requested preliminary injunction. 1. THE PLAINTIFF CANNOT SUCCEED ON THE MERITS FOR SEVERAL. REASONS: a. The Plaintiff has not been Terminate Plaintiff's own letterto Speed Vegas demonstrates that Plaintiff was not terminated, See Exhibit J. Plaintiff was given the option of continuing his employment asa.coaeh, working in the on-site office, or waiting for sixty days while modifications are made to the track. ‘The leter states that PlaitifT accepted the sixty day waiting period which would not expire until May 24, 2017, "Notwithstanding the above, Plaintiff argues that he was constructively discharged. ‘Underthe constructive discharge doctrine, an employee's reasonable evsion orsign because of unendurable working conditions is assimilated to formal discharge for remedial purposes, The ingiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's positon would have felt compelled to resign. Perm State Police» Suders 542 U.S, 129 (2004). Reassignment of job duties is insufficient to establish constructive discharge. The courts Fequite job conditions tobe worse than those whieh a reasonable person could tolerate, “an employee may not..be unreasonably sensitive toa change injob responsibilities". Serrano-Cruz v.DFIP.R,,Ie., 109 F.34 23, 26 (1* Cir, 1997), The Court in Brooks v. City of San Mateo, 229 F.3d 917, 930 (9 Cir. 2000) held: Constructive discharge occurs when the working conditions deteriorate asa result of| SneroZOZErnSes es INDEX OF EXHIBITS [Exhibit Description: Photographs of SpeedVeuas Robert Bamard Affidavit and Curriculum Vitae Pictures of Ground Breaking at SpeedVegas LVRJ Article Regarding Sports Celebrites at Speed Vegas Rolls Royoe Event Photographs; ‘Automobile Magazine Aicle (Chart of Indy Fatalities Chart of NASCAR Fatalities Aifidavit of Aaron Fessler Francisco Durban Letter to SpeedVegas Aifidavit of Aaron Weiss ‘Affidavit of Kyle Weech “Affidavit of Ben Wishiee Insurance Letter Regarding Renewed Coverage Affidavit of Leslie Williams Carfax Report ‘Affidavit of Paul Crifasi Girodise Report and Article ‘Various Coach Affidavits FIA printouts [NFPA Printout Exoties Website Photograph Alfidavit of John McMahon,