Gordon Ramsay - My Ex-Business Partner Is A Convicted Felon, Blasts Lawsuit Over Vegas Restaurant

Case 2:17-cv-00091-JAD-PAL Document 17 Filed 01/31/17 Page 1 of 27
1 ALLEN J. WILT, ESQ. (SBN 4798)

JOHN D. TENNERT III, ESQ. (SBN 11728)
2 FENNEMORE CRAIG, P.C.
300 East Second Street, Suite 1510
3 Reno, NV 89501
Telephone: (775) 788-2200
4 Facsimile: (775) 786-1177
e-mail: awilt@fclaw.com
5 jtennert@fclaw.com
6 Attorneys for Defendant Gordon Ramsay

7 UNITED STATES DISTRICT COURT
8 DISTRICT OF NEVADA
9 ROWEN SEIBEL, an individual and citizen of CASE NO: 2:17-cv-0091-JAD-PAL
10 New York, derivatively as Nominal Plaintiff on
behalf of Real Party in Interest GR BURGR LLC,
11 a Delaware limited liability company; DEFENDANT GORDON RAMSAYS
OPPOSITION TO MOTION FOR
Tel: (775) 788-2200 Fax: (775) 786-1177
12 Plaintiff, PRELIMINARY INJUNCTION

300 East Second Street - Suite 1510
FENNEMORE CRAIG, P.C.
13 vs.
Reno, Nevada 89501
14 PHWLV, LLV et al.

/
15
16 MEMORANDUM OF POINTS AND AUTHORITIES
17 Defendant Gordon Ramsay (Ramsay) respectfully submits his opposition to the motion
18 for preliminary injunction (the Motion) filed by Plaintiff Rowen Seibel (Seibel), appearing
19 derivatively on behalf of GR BURGR LLC (GRB) (ECF No. 3).
20 INTRODUCTION
21 This case represents an attempt by a convicted felon to avoid the necessary effects of his
22 conviction and to circumvent the ongoing dissolution proceedings of GRB in Delaware Chancery
23 Court. Several months after PHWLV, LLC (Planet Hollywood) deemed Seibel, and by
24 extension GRB, Unsuitable Persons and terminated the restaurant agreement between Planet
25 Hollywood and GRB, Seibel comes to this Court seeking extraordinary equitable relief. But he
26 comes too late. Seibel seeks to either: (1) force Planet Hollywood to reinstate an terminated
27 contract with GRB, a deadlocked entity now in dissolution proceedings; or, (2) in the alternative,
28 accelerate the wind-up of the BURGR Gordon Ramsay restaurant. (See Mot. at 1-2.) Seibel then
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1 adds on to his request for injunctive relief a request that the Court also prohibit Planet Hollywood
2 from opening any similar restaurant in the restaurant premises. Seibels first two requests fail to
3 satisfy the stringent standards for extraordinary equitable relief, and his third is supported by no
4 evidentiary or legal basis whatsoever.
5 Termination of the GRB Agreement was occasioned by Seibels own criminal acts and his
6 resulting felony conviction and felony sentence. Any harm that may have befallen GRB is
7 attributable to Seibels acts and omissions alone. In turn, those acts have damaged both his
8 innocent business associate Gordon Ramsay, and the party invested in running BURGR Gordon
9 Ramsay, Planet Hollywood. In essence, Seibel asks this Court to excuse him from the fallout from
10 his felony conviction and his designation as an "Unsuitable Person" for purposes of associating
11 with a Nevada gaming licensee. This Court should not, and cannot.
Tel: (775) 788-2200 Fax: (775) 786-1177
12 The relief requested in the Motion is directed at Planet Hollywoodnot Ramsay.

13 However, the injunction requested would also have a substantial effect on Ramsay, who operates
Reno, Nevada 89501
14 several restaurants at properties owned by Caesars Entertainment Corporation, or its affiliates
15 (collectively, Caesars). Ramsay cannot continue to do business with a convicted felon like
16 Seibel without impairing his own ability to pursue business relationships with Caesars and
17 similarly regulated parties. Seibels request for extraordinary equitable relief should be denied for
18 each of the following reasons.

19 First, as a threshold matter, this Court lacks subject matter jurisdiction to enter any relief in
20 this case, because there is no diversity of citizenship. The presence of the limited liability
21 company GRB as a nominal defendant destroys diversity. A partnership or a limited liability
22 company, is a citizen of every state of which its owners/members are citizens. Johnson v.
23 Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Thus, GRB is a citizen of
24 every state and nation of which its members Seibel and GR US Licensing LP (GRUS) are
25 citizens. Plaintiff Seibel is a citizen of New York. (See ECF No. 1-1 at 2, 5.) GRUS is a limited
26 partnership consisting of Kavalake Ltd., Ramsay, and GR US General Partner LLC. (Ex. 1, Kerr
27 Decl. at 1, 5.) Defendant Ramsay is a citizen of the United Kingdom. (Compl. 2; Ex. 1 at 1,
28 4.) Kavalake Ltd. is a United Kingdom limited company owned by Ramsay and his wife. (Ex. 1 at
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1 4 .) Accordingly, GRB is a citizen of New York (through Seibel) and the United Kingdom
2 (through GRUS via Ramsay and Kavalake). Regardless of whether GRB is aligned as a plaintiff
3 or as a defendant, there can never be complete diversity between plaintiffs and defendants so as to
4 satisfy 28 U.S.C. 1332.
5 Second, even if this Court had jurisdiction, Seibels request to enjoin termination of the
6 GRB Agreement is moot because the GRB Agreement has already been terminated. Further,
7 GRB is deadlocked and is soon to be dissolved. A dissolved entity cannot perform the obligations
8 under the GRB Agreement. Moreover, GRB is not the exclusive licensee of the mark BURGR
9 Gordon Ramsay. The license agreement between GRUS and GRB (the GRUS License
10 Agreement) was terminated on September 22, 2016the day after the GRB Agreement was
11 terminated by Planet Hollywood. (See Ex. 2, Decl. of Gaut and Ex. 1 thereto; see also Mot. at 5.)
Tel: (775) 788-2200 Fax: (775) 786-1177
12 Even if the Court could reinstate the GRB Agreementand it shouldnttermination of the
13 GRUS License Agreement also makes performance under the GRB Agreement and continued
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14 operation by GRB of BURGR Gordon Ramsay impossible.
15 Third, Seibel cannot establish that GRB will suffer immediate, irreparable injury if the
16 preliminary injunction is denied. The only injury detailed in the Motion is lost license fees
17 allegedly incurred prior to, and post-termination. These fees are plainly compensable in monetary
18 damages, and therefore, not irreparable. Moreover, Seibels extensive delay in filing suit weighs
19 heavily against any finding of immediate, irreparable harm.
20 Fourth, the balance of harms tips sharply in favor of denying the requested injunction. To
21 start, Planet Hollywood, and by extension Caesars, would face significant harm were the Motion to
22 be granted, since an injunction would reinstate a relationship with a convicted felon in violation of
23 Nevada law and Caesars compliance program and thereby jeopardize its gaming license. So, too,
24 would the requested injunction jeopardize Ramsays ability to continue or pursue business
25 associations with Nevada gaming and alcoholic licensees or their affiliates. In comparison, GRB
26 is deadlocked and will likely be dissolved by a Delaware court regardless of whether or not this
27 Court enters an injunction. Seibels alternative request that the Court enjoin Planet Hollywood
28 from operating a similar themed burger restaurant at the premises has no legal basis and should be
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1 summarily denied.
2 Fifth, Seibel has no likelihood of success on the merits of the derivative claims purportedly
3 brought on behalf of GRB as they relate to wrongful termination of the GRB Agreement.
4 Moreover, dissolution of GRB is imminent. Post-dissolution, a court-appointed receiver will then
5 have standing to pursue claims of GRB, if any.
6 Finally, granting a preliminary injunction to the benefit of a convicted felon so that he may
7 continue to profit from his relationship with an unwilling Nevada gaming licensee is not in the
8 public interest.
9 For all of these reasons, and each of them, the Court should deny Seibels Motion.
10 FACTUAL BACKGROUND
11 Ramsays opposition is best understood in the context of: (1) the creation of GRB and its
relationship with Planet Hollywood; (2) the relevant gaming commission regulations and their
Tel: (775) 788-2200 Fax: (775) 786-1177
12
13 impact on the GRB Agreement; (3) the deteriorating relationship between Ramsay and Seibel and
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14 the resulting deadlock at GRB; (4) Seibels felony conviction and termination of the GRB
15 Agreement and GRUS Licensing Agreement; and (5) GRBs Delaware dissolution proceedings.
16 I. THE CREATION OF GRB AND ITS RELATIONSHIP WITH PLANET

HOLLYWOOD
17
18 GRB is a Delaware LLC, formed in December 2012 by celebrity chef Gordon Ramsay,
19 through GRUS Licensing, LP (GRUS) and Seibel. (See ECF No. 4-3 at 2.) GRB is governed
20 by the Limited Liability Company Agreement of GR BURGR, LLC (the GRB Operating
21 Agreement). (See id. at Recitals at 2-3.) GRUS and Seibel each own a 50% member interest in
22 GRB. (Id. at 8, 7.2.) GRUS is a Delaware limited partnership consisting of Kavalake Ltd.,
23 Ramsay, and GR US General Partner LLC. (Ex. 1, Kerr Decl. at 1, 5.) Kavalake Ltd., is a
24 United Kingdom limited company owned by Ramsay and his wife. (Id. at 1, 4 & Exs. 1, 2
25 thereto.) GR US General Partner LLC is a Delaware limited liability company whose sole
26 member is Kavalake Ltd. (Id. at 1, 5; see also, Ex. 3, Certificate of Formation of GR US
27 General Partner LLC.)
28 ///
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1 GRB was formed to develop, or license the rights to develop, first-class, burger-themed
2 restaurants utilizing Mr. Ramsays name and celebrity cachet. (See ECF No. 4-3 at 2-3 & 4-5, 4.)
3 To this end, as contemplated by the GRB Operating Agreement, contemporaneous with the
4 execution of the GRB Operating Agreement, GRUS and GRB executed an agreement (the
5 License Agreement), through which GRUS granted GRB an exclusive license to use and/or
6 sublicense the BURGR Gordon Ramsay trademark in the operation of its businessspecifically
7 to use the mark in connection with the development and operation of restaurants solely under the
8 name BURGR Gordon Ramsay. (See ECF No. 4-4, License Agreement at 2-3, 1.1.)
9 In connection with the formation of GRB and execution of the License Agreement, GRB
10 entered into a Development, Operation and License Agreement (the GRB Agreement) with
11 Ramsay and PHW Manager, LLC on behalf of PHW las Vegas, LLC DBA Planet Hollywood.
Tel: (775) 788-2200 Fax: (775) 786-1177
12 (See ECF No. 4-1.) Under the GRB Agreement, GRB agreed to sublicense the name BURGR
13 Gordon Ramsay and license certain recipes, menus and other trade property to Planet Hollywood
Reno, Nevada 89501
14 for use in a burger-themed restaurant named BURGR Gordon Ramsay in the Planet Hollywood
15 Resort & Casino in Las Vegas, Nevada. (See ECF no. 4-1 at 6 (Recitals) & 22-24 (Article 6).) In
16 exchange for this sub-license, Planet Hollywood agreed to pay GRB a fee based on a percentage of
17 gross restaurant and merchandise sales. (See id. at 26 ( 8.1).)
18 Since its inception, GRBs only business, and it sole income generating asset, has been
19 through the GRB Agreement and the operation of the BURGR Gordon Ramsay restaurant in the
20 Planet Hollywood casino. (See ECF No. 4-19 at 9-10 ( 24-25).)
21 II. THE RELEVANT NEVADA GAMING COMMISSION REGULATIONS AND

THEIR IMPACT ON THE GRB AGREEMENT
22
23 As a public gaming company, Planet Hollywood is a highly regulated business, subject to
24 and existing because of privileged licenses, including those issued by the Nevada Gaming
25 Commission (the Commission). (See ECF No. 4-1 at 30-31 ( 11.2).) As a condition of licensing
26 and registration by the Commission, Planet Hollywood is required to have a compliance review and
27 reporting system (a Compliance Program). (Id.; see also NEV. GAMING COMMN REG.
28 5.045(1).) Among the subjects that a Compliance Program must monitor and routinely report
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1 to the Commission are [a]ssociations with persons . . . who may be deemed to be unsuitable
2 to be associated with a licensee or registrant. NEV. GAMING COMMN REG. 5.045(6)(a).
3 Failure to take action to eliminate an unsuitable association and make timely reports of the
4 action to the Commission can result in fines or the suspension, limitation, or revocation of
5 licenses and registrations. See NEV. REV. STAT. 463.225, .310 & .360.
6 Given this regulatory framework, the GRB Agreement was expressly conditioned on
7 Planet Hollywood being satisfied that GRB, its members and managers and their respective
8 affiliates are not at any time Unsuitable Persons. (See ECF No. 4-1 at 11 ( 2.2).) An
9 Unsuitable Person, as defined in the GRB Agreement, is a person whose affiliation with
10 [Planet Hollywood] or its [a]ffiliates could be anticipated to result in a disciplinary action
11 relating to, or the loss of, inability to reinstate or failure to obtain gaming and alcohol
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12 licenses held by Planet Hollywood. (Id.) The GRB Agreement granted Planet Hollywood the
13 sole and exclusive judgment to determine whether any person associated with GRB, its
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14 members and managers, or its affiliates is an Unsuitable Person. (Id. at 30-31 ( 11.2).) Upon
15 such a determination of unsuitability of any person associated with GRB, Planet Hollywood
16 had the right to terminate the GRB Agreement upon written notice and a subsequent failure by
17 GRB to cease its relationship with such person to Planet Hollywoods satisfaction. (Id.) The
18 GRB Agreement provides Planet Hollywood with complete discretion as to such a

19 termination, providing that [a]ny termination by [Planet Hollywood] pursuant to this Section
20 11.2 shall not be subject to dispute by Gordon Ramsay or GRB. (Id.)
21 In the event of an early termination of the GRB Agreement, to avoid an immediate
22 closing of the BURGR Gordon Ramsay restaurant, Planet Hollywood is entitled to operate
23 the Restaurant and use the License for one hundred twenty (120) days from such termination
24 to orderly and properly wind-up operations of the Restaurant. (Id. at 13-14 ( 4.3.2(a)).)
25 III. THE DETERIORATING RELATIONSHIP BETWEEN RAMSAY AND SEIBEL

AND THE RESULTING DEADLOCK AT GRB
26
27 The BURGR Gordon Ramsay restaurant has been a success despite the increasingly
28 dysfunctional and acrimonious relationship between Ramsay and Seibel. Ramsay and Seibel have
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1 been engaged in contentious litigation since 2014 in the Supreme Court of the State of New York
2 relating to a separate restaurant joint venture in Los Angeles called Fat Cow (the New York
3 Action). (See Ex. 4, Dudderar Decl. and Seibels verified counterclaims filed in the Delaware
4 Proceedings attached thereto at 33-34, 37-42.) That litigation involves mutual allegations by
5 Seibel and Ramsay of breaches of contract and fiduciary duty, as well as a claim by Ramsay that
6 Seibel committed fraud. (See id.)
7 In response to a petition to dissolve GRB in Delaware, Seibel filed a one hundred and three
8 paragraph counterclaim alleging an outlandish conspiracy theory pursuant to which Ramsay and
9 Caesars conspired to render Seibel unsuitable for purposes of the relevant agreements and
10 asserting breach of contract and fiduciary duty claims against GRUS purportedly on behalf of
11 GRB. (See id.) Seibel asserts essentially the same claims and allegations against Ramsay and
Tel: (775) 788-2200 Fax: (775) 786-1177
12 Caesars in this lawsuit.

13 Seibel thus admits, as he must, that the parties relationship is severely damaged and has
Reno, Nevada 89501
14 undermined their ability to work together in GRB. (See id at 34, 43.) As such, beginning in late
15 2013, the managers have rarely met or discussed business issues with each other. (See id. 35-36,
16 46-47; ECF No. 4-19 at 10, 26 (the Managers of GRB do not meet and do not speak).)
17 Because the GRB Operating Agreement requires the unanimous agreement of the two managers
18 for all decisions other than those related to the License Agreement, this has resulted in a complete
19 stalemate as to all decisions on behalf of GRB, with no means of breaking the deadlock. (See ECF
20 No. 4-19 at 10, 26.)
21 IV. SEIBELS CRIMINAL ACTIVITIES LEAD TO THE TERMINATION OF THE

GRB AGREEMENT
22
23 On April 11, 2016, Seibel sent a letter to GRUS requesting that GRUS consent to a transfer
24 of his membership interests in GRB to The Seibel Family 2016 Trust, resign as manager, and
25 appoint a new manager in his place. (See ECF No. 4-14 at 1.) Seibel provided no reason for the
26 requests, and did not inform GRUS of the then pending criminal proceedings in the Southern
27 District of New York. (See id.) In response, GRUS stated that it was unable to consent to the
28 membership assignment taking place immediately, but noted that it would be willing to consider
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1 the assignment and requested that Seibel provide a detailed list of information. (See ECF No. 4-15
2 at 2-3.) Seibel never responded.
3 Within days of the Seibels request for consent to transfer of his membership interests, on
4 April 18, 2016, Seibel pled guilty to a one-count felony criminal information charging him with
5 impeding the administration of the Internal Revenue Code (26 U.S.C. 7212) by using undeclared
6 Swiss bank accounts and a Panamanian shell company to hide more than $1 million in taxable
7 income. (See Ex. 4 at 66-76 (Hrg Tr. S.D.N.Y., Aug. 19, 2016); Compl. 10.) On August 19,
8 2016, Judge William H. Pauley, III of the United States District Court for the Southern District of
9 New York sentenced Seibel to one month of imprisonment, six months of home detention, and
10 300 hours of community service, and ordered restitution. (See Ex. 4 at 73 (Hrg Tr. 22:8-21).)
11 Judge Pauley described Seibels actions as a serious crime against the United States and found
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12 that the fact is that [Seibel] knew very well what [he was] doing was wrong. (Id. at 66 (15:15)
13 and 72-73 (21:25-22:1).) Judge Pauley further stated, [w]hatever the motivation for getting
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14 involved in this scheme and, more importantly, for continuing in the scheme for as long as he did .
15 . . the fact is that it continued for many years, and he made a whole series of corrupt and misguided
16 decisions to perpetuate it. (Id. at 72 (21:10-15).) In pleading with the Court for a minimal
17 sentence, Seibels counsel pleaded: Hes branded a felon and will be branded a felon for his entire
18 life. (Id. at 56 (5:1-2).)

19 This event struck at the heart of GRBs ability to continue the business operations that it
20 was formed to pursue. On September 2, 2016, GRUSs counsel sent a letter to Seibels counsel
21 expressing outrage that Seibel had failed to disclose the IRS investigation and subsequent
22 conviction and prison sentence and that GRUS had only heard about Seibels criminal acts through
23 public news sources. (See Ex. 2 at 6-8, Ltr. from K Gaut to B. Ziegler (Sept. 2, 2016).) Next,
24 Caesars counsel sent notice to GRB, Seibels attorney, and Ramsay on September 2, 2016, stating
25 that, in Caesars judgment, which judgment is deemed to be contractually conclusive, the
26 conviction rendered Seibel an Unsuitable Person under the GRB Agreement. (See ECF No. 4-
27 16 at 1-2.) Caesars counsel demanded that GRB cease any relationship with Seibel within ten
28 days, warning that if GRB failed to terminate the relationship to Caesars satisfaction, Caesars
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1 would be required to terminate the GRB Agreement pursuant to Section 4.2.5 thereof. (See id.)
2 On September 6, 2016, GRUS requested that Seibel terminate his relationship with GRB and that
3 he sign all necessary documents confirming such termination. (Ex. 2 at 9-11, Ltr. from K Gaut to
4 B. Ziegler (Sept. 6, 2016).)
5 In response to Caesars September 2, 2016 notice, Seibel proposed to disassociate himself
6 from GRB by transferring his interest in GRB to a family trust. (Ex. 2 at 12-14, Ltr. from B.
7 Ziegler to K. Gaut (Sept. 8, 2016).) By letter dated September 12, 2016, Caesars rejected this
8 proposal because, in Caesars judgment, the proposed assignees would have direct and/or indirect
9 relationships with Seibel thereby rendering them Unsuitable Persons under the GRB Agreement.
10 (See ECF No. 4-20 at 2-4.) GRUS thereupon reiterated its demand that Seibel completely
11 disassociate from GRB. (ECF No. 4-17 at 2-4.) Seibel demurred. On September 21, 2016,
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12 Caesars terminated the GRB Agreement pursuant to Sections 4.2.5 and 11.2 thereof. (ECF No. 4-
13 11 at 2-3.)
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14 On September 22, 2016, GRUS sent notice to GRB that it was terminating the GRUS
15 License Agreement because the termination of the GRB Agreement defeated the purpose of the
16 GRUS License Agreement, and because Seibel had failed to disclose and/or made
17 misrepresentations concerning his criminal activities. (Ex. 2 at 4-5, Ltr. from K Gaut to GRB & B.
18 Ziegler (Sept. 22, 2016).) The termination was effective as of or before the date that Caesars
19 terminated the Caesars Agreement. (See id.)
20 On September 27, 2016, GRUS provided notice to Seibel and GRB that it terminated
21 and/or rescinded the GRB Operating Agreement, effective as of or before the termination of the
22 GRB Agreement on September 21, 2016. (Ex. 2 at 4-5, Ltr. from K Gaut to R. Seibel & B. Ziegler
23 (Sept. 27, 2016).) On October 4, 2016, counsel for GRUS provided written notice to Caesars
24 counsel that it had terminated the GRUS Licensing Agreement and GRB Operating Agreement.
25 (Ex. 2 at 18-19, Ltr. from D. Reaser to M. Clayton (Oct. 4, 2016).)
26 V. THE DELAWARE DISSOLUTION PROCEEDINGS

27 On October 13, 2016, GRUS commenced a proceeding for judicial dissolution
28 (Dissolution Proceedings) of GRB on the ground of shareholder deadlock pursuant to 6 Del. C.
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1 18-802 and the terms of the GRB Operating Agreement. (See ECF No. 4-19.) On November 23,
2 2016, Seibel filed a verified answer to the dissolution petition and verified counterclaims against
3 GRUS, asserting various derivative claims purportedly on behalf of GRB. (See Ex. 4 at 5-50.)
4 GRUS filed a motion for judgment on the pleadings on December 13, 2016 seeking judgment as a
5 matter of law with respect to the Dissolution Petition (the MJOP), (see Ex 4 at 78-80), and
6 moved to dismiss or, in the alternative, to sever or stay the Counterclaims, (id. at 82-83). In
7 connection with these motions, GRUS requested the entry of a scheduling order requiring the
8 parties to brief and the Court to decide GRUSs threshold MJOP, leaving the Counterclaims for
9 subsequent resolution, if necessary. (See Ex. 4 at 86-93.)
10 During a telephonic scheduling conference on January 3, 2017, the Court determined that it
11 would consider and rule upon the MJOP before any other activity in the litigation and that
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12 discovery would be stayed pending resolution of that motion. (Ex 4 at 109-110 (Tr. of Telephonic
13 Scheduling Conference, 15:23-16:2 (Jan. 3, 2017)).) In making that determination, the Court
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14 explained that resolving the MJOP at the outset had a lot of upside in terms of judicial efficiency
15 and would provide the parties with guidance moving forward with claims or counterclaims. (Id. at
16 15:18-22.)
17 Following the Delaware Courts ruling, the parties stipulated to, and that Court entered, a
18 briefing schedule for the MJOP. (See Ex. 4 at 114-117.) Pursuant to that schedule, briefing on the
19 MJOP will be completed February 13, 2017. (Id.) Despite the Delaware Courts ruling that the
20 proper course of action in the Delaware Proceedings is for the Delaware Court to resolve the
21 MJOP before any further action involving derivative claims should move forward, on January 11,
22 2017, Seibel filed this action asserting exclusively derivative claims purportedly on behalf of
23 GRB. At Seibels request, this Court scheduled a preliminary injunction hearing for February 13,
24 2017the same date that briefing on the MJOP will be completed.
25 PRELIMINARY INJUNCTION STANDARDS

26 A preliminary injunction is an extraordinary and drastic remedy, one that should not be
27 granted unless the movant, by a clear showing, carries the burden of persuasion. Hakkasan LV,
28 LLC v. Miller, No. 2:15-CV-290-JAD-PAL, 2015 WL 751094, at *1 (D. Nev. Feb. 23, 2015)
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1 (emphasis in original) (quotation omitted). Thus, [i]njunctive relief is never granted as of right.
2 Id. To obtain preliminary injunctive relief, the plaintiff bears the burden to demonstrate each of
3 the following four factors: (1) a likelihood of success on the merits, (2) irreparable injury absent
4 preliminary injunction, (3) that the balance of hardships tips in their favor, and (4) that injunctive
5 relief in in the publics interest. Id. (citing Winter v. Natural Resources Defense Council, 555 U.S.
6 7, 20 (2008)). All four factors must be satisfied, failure to satisfy any one of them requires denial
7 of preliminary injunction. Id. at *3.
8 Where, as here, the plaintiff seeks a mandatory rather than a prohibitory injunction, the
9 preliminary relief is subject to heightened scrutiny and should not be issued unless the facts and
10 law clearly favor the moving party. HPEV, Inc. v. Spirit Bear Ltd., No. 2:13-CV-01548-JAD,
11 2014 WL 3845126, at *3 (D. Nev. Aug. 5, 2014) (quotation omitted). Seibel asks this Court to
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12 compel Caesars to reinstate a terminated contractual relationship with GRB, a soon-to-be

13 dissolved entity, which no longer even has the right to sublicense the BURGER Gordon Ramsay
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14 trademarks. Such extraordinary relief, if even possible, would dramatically alter the status quo and
15 is particularly disfavored. E.g., Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1173
16 (9th Cir. 2015) (quotation omitted).
17 Seibel cannot establish a single factor, let alone clear the high bar of obtaining the
18 mandatory injunctive relief he seeks on behalf of GRB.

19 ARGUMENT
20 I. THIS COURT LACKS JURISDICTION TO ENTER INJUNCTIVE RELIEF
21 As a threshold matter, this Court lacks subject matter jurisdiction to enter any relief
22 because complete diversity between the parties does not exist. Diversity jurisdiction under
23 1332 requires complete diversity of citizenship, each of the plaintiffs must be a citizen of a
24 different state than each of the defendants. Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1095 (9th
25 Cir. 2004). It is a well-established principle that in derivative actions, the corporation is an
26 indispensable party whose citizenship is taken into consideration when assessing diversity
27 jurisdiction. E.g., Gamrex, Inc. v. Schultz, No. CIV. 10-00380 JMS, 2010 WL 3943910, at *6 (D.
28 Haw. Sept. 9, 2010).
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1 As a Delaware limited liability company, GRB is a citizen of every state and nation of
2 which its membersSeibel and GRUSare citizens. See Johnson v. Columbia Props.
3 Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (a partnership or a limited liability company, is
4 a citizen of every state of which its owners/members are citizens.) Seibel is a New York citizen.
5 (See ECF No. 1-1 at 2, 5.) GRUS is a Delaware limited partnership, whose partners consist of
6 Kavalake Ltd., a United Kingdom limited company, Ramsay, a United Kingdom citizen, and GR
7 US General Partner LLC, a Delaware limited liability company. (Ex. 1 at 1, 5) Therefore, GRB
8 is a citizen of both New York and the United Kingdom.
9 In his Complaint, Seibel has aligned GRB as a nominal defendant, however, a nominal
10 defendant in a derivative suit is not necessarily considered a defendant for purposes of diversity
11 jurisdiction. In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008). To
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12 avoid artful pleading, the nominal defendant will be placed with the party whose interests best
13 align with those of the nominal defendant. Id. This process of assigning the nominal defendant to
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14 the side of the plaintiff or defendant is sometimes referred to as a collision of interests. Id. To
15 determine the collision of interests, courts must look beyond the pleadings to the actual
16 interests of the parties, and they are not required to adhere to mere mechanical rules. Id.
17 Because a derivative lawsuit brought by a shareholder is not his own but the corporations, the
18 corporation is the real party in interest and usually properly aligned as a plaintiff. Id. (internal
19 quotation omitted). There is an exception, however, when a corporations officers or directors are
20 antagonistic to the interests of the shareholder plaintiff(s). Id. (citation omitted). That
21 exception does not apply here.
22 Here, GRBs claims are asserted directly against Defendants Planet Hollywood and
23 Defendant Ramsay, in his individual capacity as a party to the GRB Agreement. As a result, GRB
24 must be a plaintiff. GRBs interests align neither with Planet Hollywood nor, at least for purposes
25 of Seibels allegations, Ramsay. If GRB is aligned as a plaintiff, diversity jurisdiction is destroyed
26 because both GRB, as plaintiff, and Ramsay, as defendant, are citizens of the United Kingdom.
27 Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 711 (9th Cir. 1992) (Diversity jurisdiction
28 does not encompass foreign plaintiffs suing foreign defendants.). Even if GRB remained a
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1 defendantand it should notdiversity is still destroyed because both Seibel, as plaintiff, and
2 GRB, as defendant, are citizens of New York.
3 II. SEIBELS REQUEST TO ENJOIN TERMINATION IS MOOT BECAUSE

CAESARS HAS ALREADY TERMINATED THE GRB AGREEMENT
4
5 Seibels request for mandatory injunction should be denied as moot because the requested
6 relief is no longer available. Specifically, Seibel seeks to enjoin Caesars from terminating the GRB
7 Agreement that has already been terminated. It is axiomatic that the Court cannot enjoin an event
8 that has already occurred. Indeed, injunctive relief is available to prevent threatened injury and is
9 not a remedy designed to right completed wrong. E.g., Madrid v. Perot Sys. Corp., 130 Cal. App.
10 4th 440, 46465, 30 Cal. Rptr. 3d 210, 228 (2005). If there is no longer a possibility that [a
11 litigant] can obtain relief for his claim, that claim is moot and must be dismissed for lack of
jurisdiction. Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir.1999). For example,
Tel: (775) 788-2200 Fax: (775) 786-1177
12
13 the Ninth Circuit has held that a students claims for injunctive and declaratory relief from forced
Reno, Nevada 89501
14 participation in graduation ceremony prayers were moot after the graduation ceremony occurred.
15 Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc). When injunctive
16 relief is moot, only claims for monetary damages, if any, may survive. See id. (citing Ceniceros v.
17 Board of Trustees of the San Diego Unified Sch. Dist., 106 F.3d 878, 879 n.1 (9th Cir.1997); c.f.
18 also Sami v. Wells Fargo Bank, No. C 12-00108 DMR, 2012 WL 967051, at *9 (N.D. Cal. Mar.
19 21, 2012) (dismissing as moot motion to enjoin property foreclosure, where the property already
20 had been sold).
21 Seibel inaccurately suggests that injunctive relief is appropriate because, if issued, the
22 current status quo would remain unchanged through trial. (Mot. at 9.) Not so. The GRB
23 Agreement was terminated over three months before Seibel filed this lawsuit. Shortly after the
24 Agreement was terminated, GRUS terminated its licensing agreement with GRB. Thus, GRB no
25 longer has any right to sublicense the BURGER Gordon Ramsay trademark to Caesarsunder
26 the terminated GRB Agreement or otherwise. Seibel obliquely claims that he is contesting that
27 termination, but GRUS is not a party to this action and Seibel has not asserted any claims to
28 contest termination of the License Agreement. (See Mot. at 5 n.19.) This Court has no
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1 jurisdiction over GRUS to reinstate the GRUS License Agreementnor is there any basis to do
2 so. Put simply, GRB has no right whatsoever to the BURGR Gordon Ramsay mark. Without
3 the intellectual property provided by GRUS to GRB, the requested mandatory injunctive relief is
4 impossible. Moreover, Caesars is believed to be in the process of winding up the GR BURGR
5 Restaurant with an expected closing date of March 31, 2017.
6 The status quo is that the GRB Agreement has been terminated, the license between GRUS
7 and GRB necessary for GRB to perform under the GRB Agreement has been terminated, GRB is
8 deadlocked and soon to be dissolved by a Delaware Court, and a rebranding of the GR BURGR
9 Restaurant is imminent. Because the GRB Agreement was terminated three months before Seibel
10 initiated this lawsuit, and non-parties have taken action in reliance on that termination, Seibels
11 request for mandatory injunctive relief is moot and should be denied. GRBs remedy, if any, for
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12 Caesars alleged breach of contract for wrongful termination or continued use of GRBs property
13 beyond the 120-day post-termination period is monetary damages. Injunctive relief is unavailable.
Reno, Nevada 89501
14 III. SEIBEL HAS NOT DEMONSTRATED IRREPARABLE INJURY

15 Nor can Seibel establish any likelihood of immediate, irreparable harm. An essential
16 prerequisite to the granting of a preliminary injunction is a showing of irreparable injury to the
17 moving party in its absence. Dollar Rent a Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d
18 1371, 1375 (9th Cir. 1985). Irreparable harm is traditionally defined as harm for which there is
19 no adequate legal remedy, such as an award of damages. Dryden v. Nevada, No. 2:16-CV-01227-
20 JAD-GWF, 2016 WL 3660130, at *2 (D. Nev. July 7, 2016) (quoting Arizona Dream Act Coal. v.
21 Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014)). This Court has stated that a plaintiff cannot
22 simply state or argue that they will suffer irreparable harm, they must proffer evidence sufficient to
23 establish a likelihood of irreparable harm. Id (citation omitted).
24 Seibels claim of irreparable harm fails for at least three reasons. First, the only injury that
25 Seibel alleges GRB has sustained is financial and therefore compensable in monetary damages.
26 Second, Seibels substantial delay in moving for injunction reliefseveral months after the GRB
27 Agreement was terminatedweighs heavily against finding immediate, irreparable harm. Third,
28 Seibels arguments for irreparable harm lack merit.
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1 A. Seibel Alleges Only Financial Injury For Lost Revenue, Which Cannot
Constitute Irreparable Harm
2
3 Should this case proceed to trial in some court, GRB has an adequate remedy at law. The
4 only harm alleged is financial injury in the form of license fees unpaid to GRB and/or paid to
5 Ramsay and/or his entities. It is well-established that this type of injury is compensable in
6 monetary damages, and thus, not irreparable. E.g., Los Angeles Memorial Coliseum Comm'n v.
7 National Football League, 634 F.2d 1197, 1202 (9th Cir.1980) (noting that monetary injury due to
8 lost revenues is not normally considered irreparable); Rimlinger v. Shenyang 245 Factory, No.
9 2:13-CV-2051-JAD-NJK, 2014 WL 2527147, at *6 (D. Nev. June 4, 2014) (A plaintiff is not
10 entitled to an injunction if money damages would fairly compensate him for any wrong he may
11 have suffered.) Where, as here, adequate compensatory relief will be available in the course of
litigation, [m]ere financial injury will not constitute irreparable harm. People of State of Cal. ex
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12
13 rel. Van De Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1316 (9th Cir. 1985).
Reno, Nevada 89501
14 Seibel alleges claims against Defendants for breach of contract, breach of the implied
15 covenant of good faith and fair dealing, unjust enrichment, and civil conspiracy. For each of these
16 claims, Seibel requests damages exceeding $75,000.00 for post-termination revenue allegedly
17 owed to GRB. (See Compl. 77, 84, 91, 114.) It is fatally contradictory to argue that the only
18 adequate remedy for GRBs claims is to enjoin Caesars from terminating the GRB Agreement
19 when Seibel expressly requests money damages for those same claims.
20 Seibel specifically alleges that GRB licensed the GRB Marks and the General GR
21 Materials to Planet Hollywood to use in the connection with the BURGR Restaurant in exchange
22 for the payment of a license fee (the License Fee). (Mot. at 4 (emphasis added).) The specific
23 amount of the License Fee payable to GRB, should Seibel prevail on his claims, is easily
24 ascertainable based on the percentages of gross sales as set forth in Seibels Complaint. (See
25 Compl. 20-21.) Additionally, Seibel seeks to recover those monies that Seibel contends were
26 paid directly to Ramsay beginning in 2016. (ECF No. 1-1, Seibel Decl. at 5-6, 23-26.) For
27 support, Seibel includes a declaration that identifies all payments to the penny that GRB
28 received under the GRB Agreement. (See id.) In sum, Seibel seeks past revenue that he claims
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1 GRB is owed and future revenue that he alleges GRB has lost following his criminal conviction
2 and subsequent termination of the GRB Agreement. For Seibels contract-based claims, money
3 damages are available. Injunctive relief is not.
4 1. Declaratory and Injunctive Relief Claims Merely Restate Seibels

Claims for Money Damages
5
6 Seibel also asserts two claims for declaratory judgment and one claim for injunctive
7 relief that are wholly duplicative of his underlying claims for breach of contract, breach of the
8 covenant of good faith and fair dealing, unjust enrichment, and civil conspiracy. Declaratory
9 relief, like injunctive relief, is a remedy, not an underlying substantive claim and are therefore,
10 not proper causes of action. Int'l Game Tech., Inc. v. Fed. Ins. Co., No. 3:13-CV-00026-RCJ,
11 2014 WL 580876, at *6 (D. Nev. Feb. 13, 2014) (dismissing, with prejudice, declaratory and
injunctive relief claims that repeat the allegations supporting the underlying substantive claims).
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12
13 As plead, Seibels declaratory relief claims merely repeat the allegations of the underlying
Reno, Nevada 89501
14 breach of contract claims and, thus, rise and fall with those claims. (See generally Compl.); See
15 SVI, Inc. v. Supreme Corp., No. 216CV01098-JAD-NJK, 2016 WL 7190548, at *6 (D. Nev. Dec.
16 12, 2016). Likewise, GRBs claim for injunctive relief is a remedy for an alleged breach of Article
17 6 of the GRB Agreement, (see Compl. 97), and not an independent cause of action. See In re
18 Wal-Mart Wage & Hour Employment Practices Litig., 490 F. Supp. 2d 1091, 1130 (D. Nev. 2007)
19 (injunctive relief standing alone is not an independent cause of action). GRBs duplicative
20 claims for declaratory judgment and injunctive relief are merely repetitive of GRBs claims for
21 money damages for alleged wrongful termination of contract, and cannot serve as a basis for the
22 preliminary relief sought here.
23 B. Seibels Delay in Seeking a Preliminary Injunction Weighs Heavily Against a

Finding of Immediate, Irreparable Harm.
24
25 The Ninth Circuit has long recognized that delay before seeking a preliminary injunction
26 implies a lack of urgency and irreparable harm. Oakland Tribune, Inc. v. Chronicle Pubg Co.,
27 762 F.2d 1374, 1377 (9th Cir. 1985) (citing Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d
28 1211, 1213 (9th Cir. 1984) ([a] preliminary injunction is sought upon the theory that there is an
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1 urgent need for speedy action to protect the plaintiffs rights. By sleeping on its rights a plaintiff
2 demonstrates the lack of need for speedy action.) The Ninth Circuit has noted that unreasonable
3 delay can defeat irreparable injury and the length of time need not be great. Garcia v. Google,
4 Inc., 786 F.3d 733, 746 (9th Cir. 2015) (quotation omitted). Accordingly, district courts routinely
5 deny injunctive relief where the plaintiff has delayed filing suit or seeking preliminary relief. See
6 e.g., JL Beverage Co., LLC v. Beam, Inc., 899 F. Supp. 2d 991, 1011 (D. Nev. 2012) (delay in
7 filing preliminary injunction motion of several months weighed against granting relief); Valeo
8 Intellectual Prop., Inc. v. Data Depth Corp., 368 F. Supp. 2d 1121, 1128 (W.D. Wash. 2005)
9 (three-month delay in seeking injunctive relief is inconsistent with [plaintiffs] insistence that it
10 faces irreparable harm).
11 Where, as here, injunctive relief is sought in response to related proceedings, the delayed
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12 request further suggests that the preliminary injunction is more a litigation strategy than a device
13 to protect against harms not redressable by standard means. Russell Rd. Food & Beverage, LLC
Reno, Nevada 89501
14 v. Spencer, No. 2:12-CV-01514-LRH, 2013 WL 321666, at *5 (D. Nev. Jan. 28, 2013) (request for
15 injunction in response to declaratory action coupled with five month delay negated claim of
16 irreparable harm).
17 Here, Seibel waited over four months after he received notice that his felony conviction
18 rendered him, and by extension GRB, an Unsuitable Person under the GRB Agreement to file
19 the Complaint. (See ECF No. 4-16, Ltr from M. Clayton to GRB, B. Ziegler, GRB, and M.
20 Thomas (Sept. 2, 2016); ECF No. 4-20, Ltr. from B. Ziegler to M. Clayton (Sept. 16, 2016)
21 (Seibels attorney acknowledging receipt of Caesars Sept. 2 notice).) On September 2, 2016,
22 Caesars warned GRB, Seibel, and Ramsay that if GRB failed to terminate the relationship with
23 Seibel, Caesars would be required to terminate the GRB Agreement pursuant to Section 4.2.5.
24 (See ECF No. 4-16.) Yet, Seibel took no action. By letter dated September 12, 2016, Caesars
25 rejected Seibels proposal to disassociate himself from GRB by transferring his interest in GRB to
26 a family trust [and in no uncertain terms restated its intention to terminate the GRB Agreement].
27 (See ECF No. 4-20, Ltr. from B. Ziegler to M. Clayton (Sept. 16, 2012).) Still, Seibel took no
28 action. On September 21, 2016, Caesars terminated the GRB Agreement pursuant to Sections
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1 4.2.5 and 11.2. (See ECF No. 4-11.) Again, Seibel failed to act.
2 On October 13, 2016, GRUS initiated the Dissolution Proceedings. On November 23,
3 2016, Seibel filed an answer and verified counterclaims against GRUS, asserting various
4 derivative claims, based on the same factual allegations that Seibel parrots here. In was not until
5 the Delaware Court stayed litigation on Seibels counterclaims on January 3, 2017 and set a
6 briefing schedule on GRUSs dispositive motion to dissolve GRB that Seibel took action in this
7 forum. On January 11, 2017, Seibel filed this lawsuit and Motion. Seibel requested a hearing on
8 the Motion for February 13, 2017the same date that briefing on the GRBs dissolution will be
9 submitted to the Delaware Court. In a letter to the Delaware Court attempting to explain that
10 Seibels Nevada filings were not a transparent attempt to circumvent the Delaware Courts stay of
11 litigation, Seibels counsel stated that: Undersigned counsel is personally aware that the action
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12 in Nevada was in the works in November 2016, at the latest. (See Ex. 4 at 120, Letter from P.
13 Brown, attorney for Seibel, to Vice Chancellor J. Slights III, DE Court of Chancery (January 19,
Reno, Nevada 89501
14 2017).) Yet, Seibel continued to sit on his hands until this late date to bring this Motion. This
15 deliberate delay clearly implies a lack of urgency and irreparable harm. Oakland Tribune, 762
16 F.2d at 1377.
17 C. Seibels Arguments of Irreparable Harm Lack Merit.

18 In his Motion, Seibel half-heartedly argues that GRB will suffer irreparable harm absent
19 injunctive relief for three reasons. First, Seibel points to a clause in the terminated GRB
20 Agreement that money damages would be inadequate to remedy a breach of Article 6 of that
21 agreement. (Mot. at 19-20.) Next, Seibel argues that GRB would dissolve absent a mandatory
22 injunction. (Id. at 20-22.) Finally, Seibel contends that GRB would lose control over the use of
23 the General GR Materials and GRB Marks. (Id. at 23). But, as noted above, GRB does not own
24 the principal mark that is the name and identity of the restaurantBURGR Gordon Ramsay, nor
25 does it today have any right to sublicense that mark to Planet Hollywood. None of these
26 arguments demonstrates that GRB will suffer immediate, irreparable harm.
27 ///
28 ///
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1 1. Contractual Concession of Irreparable Harm is Not Controlling

2 Seibel contends that Section 14.10.2 of the GRB Agreement entities GRB to the
3 presumption of equitable relief he seeks. Not so. District courts in the Ninth Circuit provide
4 little weight, if any, to contractual clauses that pre-declare that any breach will result in
5 irreparable harm. See e.g., La Jolla Cove Invrs, Inc. v. GoConnect Ltd., No. 11CV1907 JLS
6 JMA, 2012 WL 1580995, at *4 (S.D. Cal. May 4, 2012) ([t]his Court agrees with other district
7 courts in this circuit and gives little weight to the clause in the [funding agreement] that pre-
8 declares that any breach of the Agreement will result in irreparable harm.); Riverside Publ'g Co.
9 v. Mercer Publ'g LLC, No. C 111249, 2011 WL 3420421, at *8 (W.D.Wash. Aug. 4, 2011)
10 (citing cases in other circuits declining to presume irreparable harm based on a contract clause).
11 Following the U.S. Supreme Courts decision in Winter v. Natural Resources Defense
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12 Council, which emphasized the need for a plaintiff to demonstrate a likelihood of irreparable
13 injurynot just a possibilityin order to obtain preliminary relief, district courts have noted that
Reno, Nevada 89501
14 contractual provisions may not serve as an admission of irreparable harm. See La Jolla Cove
15 Inv'rs, Inc., 2012 WL 1580995, at *4 n.2 (By extension of the reasoning in Winter, the Court
16 finds the view in [pre-Winter cases] that a contractual provision could serve as an admission of
17 irreparable harm unsound.) Thus, section 14.10.2 would not relieve Seibel from demonstrating
18 actual irreparable harm. See Riverside Publ'g Co , 2011 WL 3420421, at *8; see also Smith,
19 Bucklin & Assocs., Inc. v. Sonntag, 83 F.3d 476, 481 (D.C.Cir.1996) (finding that contractual
20 concession of irreparable harm is an insufficient prop).
21 2. GRB is Deadlocked and Will Dissolve if Injunction is Issued
22 Seibel next argues that GRUS seeks to dissolve GRB [] based solely on Planet
23 Hollywood[s] purported termination the GRB Agreement to imply that injunctive relief would
24 protect GRB from the threat of being dissolved. (Mot. at 20-22.) But Seibel mischaracterizes the
25 Dissolution Proceedings and omits the fact that the managers of GRB are deadlocked and the GRB
26 Operating Agreement provides no means of resolving the impasse. The requested injunction
27 would neither resolve the deadlock nor halt dissolution. In its Delaware Petition for Dissolution,
28 GRUS alleged:
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1 All decisions of the Company must be made by a majority vote of the Managers of
GRB, and Seibel, as one of the Companys two Managers, has refused all requests
2
to cooperate in terminating his association with GRB. As such, the Managers are
3 deadlocked as to the future of the Company. Moreover, the Managers of GRB do
not meet and do not speak due to Seibels criminal activities and his designation as
4
an Unsuitable Person. There is no mechanism in the [GRB Operating Agreement]
5 to resolve this deadlock.
6 (See ECF No. 4-19 at 10 26.)
7 Under Delaware law, the existence of such a deadlock, even where the business of the
8 company could otherwise reasonably continue, has been held sufficient grounds for judicial
9 dissolution of 50/50 LLCs such as GRB where there is no means of resolving the deadlock under
10 the LLCs operating agreement. See Vila v. BVWebTies LLC, 2010 WL 3866098, at *6-7 (Del.
11 Ch.) (noting that an unbreakable deadlock among 50/50 managers provides an indisputable basis
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12 for dissolution under the Act); Phillips v. Hove, 2011 WL 4404034, at *26-27 (Del. Ch.)
13 (ordering dissolution where two co-equal managers were deadlocked with no effective
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14 mechanism to break the deadlock, and noting that the fact that the LLC continued to operate
15 marginally was irrelevant to determining the existence of deadlock).
16 Even before Seibels felonious actions came to light, the Delaware pleadings make clear
17 that the working relationship between GRBs owners and appointed managers had broken down
18 and reached an impasse requiring judicial dissolution. (See generally ECF No. 4-19 (Dissolution
19 Petition).) While Seibel attempts to deny or downplay the existence of an insuperable deadlock, he
20 at the same time bases his argument for demand futility on the fact that a deadlock exists and the
21 managers are not speaking. (See ECF No. 1-1, Seibel Decl. 11-15.) Seibel and Ramsay have
22 been engaged in contentious litigation in the context of their business relationship since 2014, in
23 the Supreme Court of the State of New York related to their other restaurant joint venture in Los
24 Angeles, Fat Cow. (See Ex. 4, Seibels verified Delaware counterclaims at 33-34, 37-42.)
25 Seibel concedes that the parties acrimonious relationship concerning the Fat Cow restaurant
26 litigation bled over into Seibels and Ramsays other ventures, including the one at issue here.
27 (See id. at 34, 43.) Dissolution of GRB is imminent, regardless of whether or not the requested
28 injunction is issued.
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1 IV. THE BALANCE OF HARDSHIPS DISFAVORS AN INJUNCTION

2 An injunction should not be granted if its impact on the enjoined party would be more
3 severe than the injury the moving party would suffer if it is not granted. Litton Sys. Inc. v.
4 Sundstrand Corp., 750 F.2d 952, 959 (Fed. Cir. 1984). The harm that would visit both Planet
5 Hollywood and Ramsay should the requested injunctive relief issue is substantially greater than
6 any possible harm to GRB if the Motion is denied. Under the Commissions regulations, Nevada
7 gaming and alcohol beverage licensees can face serious penalties for doing business with
8 unsuitable persons. See NRS 463.225, .310 & .360. So too does Gordon Ramsay risk serious
9 damage to his brand and ability to contract with regulated entities should he be deemed to be
10 unsuitable himself through continued business dealings with Mr. Seibel.
11 Seibel offers no evidence to suggest that the balance of hardships favors injunction. Seibel
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12 argues, wrongly, that if an injunction is issued Planet Hollywood would not suffer any harm
13 because the current status quo would remain unchanged. (Mot. at 22.) The status quo would
Reno, Nevada 89501
14 change drastically. If Planet Hollywood were forced to reinstate a relationship with a convicted
15 felon, Planet Hollywood, and by extension Caesars, may be placed in jeopardy of Nevada law and
16 put at risk its valuable gaming license. Likewise, Ramsay, through entities owned and operated by
17 him, including GRUS, have or may pursue business associations with Nevada gaming and
18 alcoholic licensees or their affiliates. If the Court were to reinstate the GRB Agreement and
19 compel Ramsay into a continuing business association with Seibel, this relationship may be a
20 source of concern to other licensees and registrants besides Caesars because Ramsay would remain
21 in an indirect relationship with a convicted felon. The Court should not enjoin Ramsays
22 necessary efforts to disassociate from Seibel and thereby jeopardize Ramsays other business
23 dealings with regulated entities.
24 Seibel also overlooks the termination of the License Agreement, through which GRUS
25 licensed certain trademarks to GRB, including the name of the BURGR Gordon Ramsay
26 restaurant. Without the intellectual property provided by Ramsay, through GRUS, to GRB, GRB
27 cannot perform that agreement, and the GRB Agreement fails.
28
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1 V. GRB IS NOT LIKELY TO SUCCEED ON THE MERITS OF THE CLAIMS UPON

WHICH IT BASES IS REQUEST FOR INJUNCTIVE RELIEF
2
3 Because Seibels requested injunction is moot, he has not established irreparable harm, and
4 the balance of hardships does not favor injunction, injunctive relief is not viable and the Court
5 need not consider the likelihood of success factor. To the extent that it does, Seibel has failed to
6 make a showing that his claims and conspiracy theories warrant extraordinary relief. In his
7 Motion, Seibel addresses the likelihood of success on all of the claims that he asserted against
8 Planet Hollywood. But the breach of contract claims are the only claims that could conceivably
9 provide a basis for Seibels request that this Court enjoin termination of the GRB Agreement.
10 Based on the plain terms of that agreement, however, Seibel is not likely to succeed on his claims
11 for breach of contract for wrongful termination.
A. GRBs Imminent Dissolution May Impair Seibels Derivative Action

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12
13 As a threshold issue, none of the derivative claims asserted by Seibel is likely to succeed
Reno, Nevada 89501
14 on the merits because the dissolution of GRB is imminent. In the Delaware Dissolution
15 Proceedings, the Delaware Court has the power to appoint a liquidating trustee to wind up an
16 LLCs business. See Del. Code 18-803(a). Upon dissolution, the liquidating trustee winding up
17 the business has the power to prosecute and defend suits in the name of the company until the
18 filing of a certificate of cancellation. See Del. Code 18-803(b). Should the Delaware Court find
19 that dissolution of GRB is warranted, then the authority to pursue any and all claims belonging to
20 the GRB would be vested in a court-appointed receiver.
21 B. GRB Will Not Succeed on its Claims of Wrongful Termination
22 To state a claim for breach of contract against Planet Hollywood, Seibel must demonstrate
23 (1) the existence of a valid contract; (2) that GRB performed or was excused from performance;
24 (3) that Planet Hollywood breached; and (4) that GRB sustained damages. Seiler v. JPMorgan
25 Chase Bank, N.A., No. 2:10-CV-01405-KJD-RJJ, 2012 U.S. Dist. LEXIS 7094, at *17-18 (D. Nev.
26 Jan. 23, 2012) (citing Saini v. Int'l Game Tech., 434 F.Supp.2d 913, 919-20 (D. Nev. 2006)).
27 Seibels felony conviction placed GRB in breach of the suitability covenants clearly outlined in the
28 GRB Agreement. Thus, GRBs breach of contract claim fails. Saini, 434 F.Supp.2d at 923
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1 (Failure to perform one's obligations within the express terms of an agreement constitutes a literal
2 breach of contract.).
3 The GRB Agreement was expressly conditioned on Planet Hollywood being satisfied
4 that GRB, its members and managers (including Seibel), and their respective affiliates are not
5 at any time Unsuitable Persons. (ECF No. 4-1 at 11, 2.2.) An Unsuitable Person, as
6 defined in the GRB Agreement, is a person whose affiliation with [Planet Hollywood] or its
7 [a]ffiliates could be anticipated to result in a disciplinary action relating to, or the loss of,
8 inability to reinstate or failure to obtain gaming and alcohol licenses held by Planet
9 Hollywood. (Id. at 1.) The GRB Agreement granted Planet Hollywood the sole and
10 exclusive judgment to determine whether any person associated with GRB, its members and
11 managers, or its affiliates is an Unsuitable Person. (Id. at 30-31, 11.2.) Upon such a
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12 determination of unsuitability of any person associated with GRB, Planet Hollywood had the
13 right to terminate the GRB Agreement upon written notice and a subsequent failure by GRB
Reno, Nevada 89501
14 to cease its relationship with such person to Planet Hollywood satisfaction. (Id.) That is
15 exactly what Planet Hollywood did following Seibels conviction and refusal to disassociate
16 with GRB. There can be no breach by Planet Hollywood for taking action that was expressly
17 contemplated for in the GRB Agreement.
18 Also, Seibel cannot invoke the implied covenant where, as here, the parties have a written
19 contract expressly covering the terms allegedly breached. See, e.g., Allied Capital Corp. v. GC-
20 Sun Holdings, L.P., 910 A.2d 1020, 1032-33 (Del. Ch. 2006) (where a specific, negotiated
21 provision directly treats the subject of the alleged wrong and has been found to have not been
22 violated, a court will not find by implication a contractual obligation of a different kind that has
23 been breached)). Allowing Seibel to circumvent the covenants of suitability through the implied
24 covenant of good faith and fair dealing would violate the fundamental principle that contracts are
25 enforceable at law according to their terms. E.g., Price v. Wells Fargo Bank, 213 Cal.App.3d
26 465, 479-480 (Cal.App.1.Dist. 1989).
27 Seibels allegations that do not pertain to termination of the GRB Agreement have no
28 relevance to whether the Court should enjoin termination of the GRB Agreement, and should
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1 be disregarded. Because Seibel is not likely to prevail on his claims that Planet Hollywood
2 wrongfully terminated the GRB Agreement, injunctive relief is unavailable.
3 VI. INJUNCTION WOULD BE CONTRARY TO THE PUBLIC INTEREST

4 Granting injunctive relief in this cause would not be in the public interest. The public
5 interest inquiry primarily addresses impact on non-parties rather than parties. Sammartano v.
6 First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). Seibel contends that the public
7 interest weighs in favor of enforcing contractual obligations. (Mot. at 23.) It is Seibels acts,
8 however, that have caused GRB to breach its contractual obligations to Planet Hollywood. Planet
9 Hollywood exercised its contractual rights and declared Seibel an Unsuitable Person as that term
10 is defined in the GRB Agreement. The public interest will not be served if the Court were to
11 compel a regulated Nevada gaming entity to continue its business relationship with an entity that is
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12 owned and managed by a convicted felon. See Kraft v. Jacka, 872 F.2d 862, 873 (9th Cir. 1989)
13 (The state of Nevada has a significant interest in ensuring that only suitable individuals will have
Reno, Nevada 89501
14 control of gaming operations.). The requested injunction will also impact a non-party, GRUS, as
15 well as Ramsay himself.
16 To enjoin Planet Hollywood from determining Seibel, a felon convicted of tax fraud, an
17 unsuitable person and force an unsuitable contract on a Nevada gaming licensee as well as an
18 unwilling business partner, would set a damaging precedent that would chill private
19 determinations of suitability that are necessary to maintain the integrity of the Nevada gaming
20 industry.
21 CONCLUSION
22 GRB has not satisfied its burden of clearly showing its entitlement to injunctive relief. For
23 the foregoing reasons, Seibels Motion should be denied.
24 DATED this 31st day of January, 2017. FENNEMORE CRAIG, P.C.
25 /s/ John D. Tennert
26 ALLEN J. WILT, SBN 4798
JOHN D. TENNERT III, SBN 11728
27
Attorneys for Gordon Ramsay
28
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1 CERTIFICATE OF SERVICE
2 I certify that I am an employee of FENNEMORE CRAIG, P.C., and that on this date,
3 pursuant to FRCP 5(b), I am serving a true and correct copy of the attached DEFENDANT
4 GORDON RAMSAYS OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION on
5 the parties set forth below by:
6 _____ Placing an original or true copy thereof in a sealed envelope placed for
collection and mailing in the United States Mail, at Reno, Nevada, postage
7 prepaid, following ordinary business practices
8
______ Certified Mail, Return Receipt Requested
9
______ Via Facsimile (Fax)
10
______ Placing an original or true copy thereof in a sealed envelope and causing the
11
same to be personally Hand Delivered
Tel: (775) 788-2200 Fax: (775) 786-1177
12
______ Federal Express (or other overnight delivery)

13
Reno, Nevada 89501
X E-service effected by CM/ECF

14
15
addressed as follows:
16
17 Daniel R. McNutt
Matthew C. Wolf
18 CARBAJAL & MCNUTT, LLP
625 South Eighth Street
19 Las Vegas, NV 89101
Tel: (702) 384-1170
20
Fax: (702) 384-5529
21 Emails: drm@cmlawnv.com
mcw@cmlawnv.com
22
Attorneys for Plaintiff
23
Dated: January 31, 2017
24
/s/ Meg F. Byrd
25 An employee of FENNEMORE CRAIG, P.C.
26
27
28
Page25 of 25
12526934
1 TABLE OF EXHIBITS
TO
2 DEFENDANT GORDON RAMSAY'S OPPOSITION TO
MOTION FOR PRELIMINARY INJUNCTION
3
4
1. Declaration of David Kerr
5
Exhibit 1: Certificate of Incorporation of Kavalake Limited;
6 Exhibit 2: Kavalake Limited's Annual Return dated January 9, 2015.
7
2. Declaration of Kevin E. Gaut
8 Exhibit 1: Letter from K. Gaut to GR Burgr, LLC and B. Ziegler regarding
9 "License Agreement Between GR US Licensing, LP and GR
BURGR, LLC," dated September 22, 2016;
10 Exhibit 2: Letter from K. Gaut to B. Ziegler regarding "Rowen Seibel's Tax
Fraud Conviction," dated September 2, 2016;
11
Exhibit 3: Letter from K. Gaut to B. Ziegler regarding "Rowen Seibel's Tax
12 Fraud Conviction," dated September 6, 2016;
Exhibit 4: Letter from B. Ziegler to K. Gaut regarding "GR BURGR,
13 LLC," dated September 8, 2016;
14 Exhibit 5: Letter from K. Gaut to R. Seibel and B. Ziegler regarding "GR
Burgr, LLC," dated September 27, 2016;
15
Exhibit 6: Letter from D. Reaser to M. Clayton regarding "GR Burgr, LLC;
Development, Operating, and Licensing Agreement,
16
Determination of Unsuitability and Demand for Termination of
17 Association with Rowan Seibel.
18
3. Certified Copy of the Certificate of Formation of GR US General
Partner LLC on File With the Delaware Secretary of State
19 4. Declaration of Timothy R. Dudderar, Esq.
20 Exhibit 1: Answer to Verified Petition for Judicial Dissolution and
Declaratory Judgment and Verified Counterclaims of
21 Respondent in Delaware C.A. No. 12825 (VCS);
22 Exhibit 2: Criminal Hearing Transcript in New York Case No. 16 CR 279
(WHP);
23
Exhibit 3: Motion for Judgment on the Pleadings, Delaware C.A. No.
24 12825 (VCS);
25 Exhibit 4: Motion to Dismiss, Alter, Server, or Stay Counterclaims,
Delaware C.A. No. 12825 (VCS);
26
Exhibit 5: Request for Entry of Scheduling Order, Delaware C.A. No.
27 12825 (VCS);
28
1 Exhibit 6: Transcript of Telephonic Scheduling Conference held January 3,

2017 in Delaware C.A. No. 12825 (VCS);
2
Exhibit 7: Briefing Schedule on motion for Judgment on the Pleadings,
3 Delaware C.A.. No. 12825 (VCS);
4 Exhibit 8: Letter from P. Brown, attorney for Seibel, to Vice Chancellor J.

Slights III, Delaware Court of Chancery, dated January 19,
5 2017;
6 Exhibit 9: Petitioner's Opening Brief in Support of its Motion for Judgment

on the Pleadings, Delaware C.A. No. 12825 (VCS).
7
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Gordon Ramsay - My Ex-Business Partner Is A Convicted Felon, Blasts Lawsuit Over Vegas Restaurant

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Gordon Ramsay - My Ex-Business Partner Is A Convicted Felon, Blasts Lawsuit Over Vegas Restaurant

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Case 2:17-cv-00091-JAD-PAL Document 17 Filed 01/31/17 Page 1 of 27

1 ALLEN J. WILT, ESQ. (SBN 4798)

6 Attorneys for Defendant Gordon Ramsay

12 Plaintiff, PRELIMINARY INJUNCTION

14 PHWLV, LLV et al.

16 MEMORANDUM OF POINTS AND AUTHORITIES

19 derivatively on behalf of GR BURGR LLC (GRB) (ECF No. 3).

4 evidentiary or legal basis whatsoever.

12 The relief requested in the Motion is directed at Planet Hollywoodnot Ramsay.

14 several restaurants at properties owned by Caesars Entertainment Corporation, or its affiliates

18 each of the following reasons.

21 company GRB as a nominal defendant destroys diversity. A partnership or a limited liability

4 satisfy 28 U.S.C. 1332.

14 operation by GRB of BURGR Gordon Ramsay impossible.

4 Moreover, dissolution of GRB is imminent. Post-dissolution, a court-appointed receiver will then

5 have standing to pursue claims of GRB, if any.

16 I. THE CREATION OF GRB AND ITS RELATIONSHIP WITH PLANET

26 member is Kavalake Ltd. (Id. at 1, 5; see also, Ex. 3, Certificate of Formation of GR US

27 General Partner LLC.)

17 gross restaurant and merchandise sales. (See id. at 26 ( 8.1).)

20 Planet Hollywood casino. (See ECF No. 4-19 at 9-10 ( 24-25).)

21 II. THE RELEVANT NEVADA GAMING COMMISSION REGULATIONS AND

23 As a public gaming company, Planet Hollywood is a highly regulated business, subject to

2 to be associated with a licensee or registrant. NEV. GAMING COMMN REG. 5.045(6)(a).

10 [Planet Hollywood] or its [a]ffiliates could be anticipated to result in a disciplinary action

18 GRB Agreement provides Planet Hollywood with complete discretion as to such a

20 11.2 shall not be subject to dispute by Gordon Ramsay or GRB. (Id.)

21 In the event of an early termination of the GRB Agreement, to avoid an immediate

25 III. THE DETERIORATING RELATIONSHIP BETWEEN RAMSAY AND SEIBEL

6 Seibel committed fraud. (See id.)

12 Caesars in this lawsuit.

20 No. 4-19 at 10, 26.)

21 IV. SEIBELS CRIMINAL ACTIVITIES LEAD TO THE TERMINATION OF THE

2 at 2-3.) Seibel never responded.

18 life. (Id. at 56 (5:1-2).)

25 that, in Caesars judgment, which judgment is deemed to be contractually conclusive, the

4 B. Ziegler (Sept. 6, 2016).)

5 In response to Caesars September 2, 2016 notice, Seibel proposed to disassociate himself

25 (Ex. 2 at 18-19, Ltr. from D. Reaser to M. Clayton (Oct. 4, 2016).)

26 V. THE DELAWARE DISSOLUTION PROCEEDINGS

9 subsequent resolution, if necessary. (See Ex. 4 at 86-93.)

24 2017the same date that briefing on the MJOP will be completed.

25 PRELIMINARY INJUNCTION STANDARDS

7 of preliminary injunction. Id. at *3.

12 compel Caesars to reinstate a terminated contractual relationship with GRB, a soon-to-be

16 (9th Cir. 2015) (quotation omitted).

18 mandatory injunctive relief he seeks on behalf of GRB.

8 is a citizen of both New York and the United Kingdom.

21 exception does not apply here.

25 of Seibels allegations, Ramsay. If GRB is aligned as a plaintiff, diversity jurisdiction is destroyed

2 GRB, as defendant, are citizens of New York.

3 II. SEIBELS REQUEST TO ENJOIN TERMINATION IS MOOT BECAUSE

20 had been sold).

4 impossible. Moreover, Caesars is believed to be in the process of winding up the GR BURGR

5 Restaurant with an expected closing date of March 31, 2017.

14 III. SEIBEL HAS NOT DEMONSTRATED IRREPARABLE INJURY

9 2:13-CV-2051-JAD-NJK, 2014 WL 2527147, at *6 (D. Nev. June 4, 2014) (A plaintiff is not

3 damages are available. Injunctive relief is not.

4 1. Declaratory and Injunctive Relief Claims Merely Restate Seibels

22 preliminary relief sought here.

23 B. Seibels Delay in Seeking a Preliminary Injunction Weighs Heavily Against a

10 faces irreparable harm).

21 (Seibels attorney acknowledging receipt of Caesars Sept. 2 notice).) On September 2, 2016,