Professional Documents
Culture Documents
A- 14-703627- C
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_ _ _ _ _ _ _ _ __JCounty. Nn-.da
CoreNo. - - - - - - - - - - - - - - -
J. Party information
Plaintiflls) (oome/add,...;phooe):
(nameiaddrcssiphooe):
.-.omey (name/address/phone):
Negligence
Ounlav.fu1 Detatne:r
Title lo Property
0Judicial Foreclosure
0Auw
0PrerrUscs Liability
Domer Negligence
MatpMlcriee
0MedicallDenUII
Oothcr Landlord/TenaJll
---rrobate
QAcoounting
Construction Defect & Coatract
Constrottion Dcft
Ochapler40
Oocne:ral Adminisuation
Contr3et Case
Ospecial Administr.ukm
'
Otmem.imW Misconduct
--
0ProduC1 Uabilil)'
DEmplo)mlC'll Ton
0Jnsumnce Ton
QolherTon
I
Oothcr Malpractice
t'GlwJ
0 Summary Administration
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Torts
Otber Torts
Judicial Review/AppeaJ
Judiclal RC'\1ew
QForec1osurt" Mediotion Case
OsetA.side
0Trust/Cooservators!Up
Oother
Estate Value
Qlnsunmce Cmier
Qworker's Compensation
Ocommerc:iallnsuumeot
OcoUection of Accounts
OE.mptoyment Contract
[2Siothcr Conttac<
DOver $200,000
0Bc:tWeeo S I00,000 and $200,000
Appeal Otber
QAppeo.J &am LowerCow1
QOther Judicio.! Revlc:w/AppeaJ
Oundec S2.500
CivU Writ
ChiiWriC
Qwrit ofProhibitioo
0Foreig.n Judgment
Business Court filings shmlld be filed usmg the Business Court c1vil coferslleet.
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Electronically Filed
07/10/2014 07:26:22 AM
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DISTRICT COURT
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Case No:
Dept. No:
A- 14-703627- C
XXIII
vs.
JOHN KARAUS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
COMPLAINT
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Defendant.
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and through its attorneys of record of the law firm of DENNETT WINS PEAR, LLP, and
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follows:
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"Pregame LLC" or "Plaintiff") was a Limited liability Company duly organized and
operating pursuant to the laws of The State of Nevada with its principal place of
business in Clark County, Nevada.
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ROE COMPANIES 1 through 20, are unknown to Plaintiff who therefore sues said
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Defendants by such fictitious names. Plaintiff is infonned and believes and thereon
alleges that each of the Defendants designated herein as DOE is responsible in some
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manner for the events and happenings referred to and caused damages proximately to
Plaintiff as herein alleged, and Plaintiff will ask leave of the Court to amend the
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Complaint to insert the true names and capacities of DOES 1 through 20, ROE
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COMPANIES 1 through 20, and ROE CORPORATIONS 1 through 20, when the same
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4.
This Court has jurisdiction in this matter and venue is proper because this
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action relates to and arises out of conduct which occurred, in whole or in part, in the
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II.
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GENERAL ALLEGATIONS
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Plaintiff provides sports related content of interest to sports fans and sports bettors.
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Some of that content is provided free of charge to viewers of the website and other
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content, designated "premium" content, can only be accessed after paying a fee.
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Premium content subscription fees are a main source of revenue for Plaintiffs business.
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Plaintiff obtains the content from contracted content providers including Defendant John
Karalis.
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years, tei1Tlinating in June 2017. (Exhibit "A", Paragraph 9) The Agreement followed a
previous similar contract between the parties which was replaced by the Agreement.
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LLC entered into a Social Network Addendum ("the Addendum") with Defendant Karalis.
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Agreement ("the Agreement") with Defendant Karalis, and in or around 2009 Pregame
The Agreement and the Addendum are attached to hereto as Exhibits "A" and "B",
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The parties have operated under the current and previous contracts for a period of
several years without incident.
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license to "publish, display, refoi1Tlat and distribute" all sports related content generated
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by Defendant Karalis, (Exhibit "A", Paragraph 2) as well as the right to bundle such
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The Agreement provides that Karalis may not publicly disclose infoi1Tlation
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related to his relationship with Pregame LLC (Exhibit "A", Paragraph 13), that Karalis will
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not undertake any conflicting obligations (Exhibit "A", Paragraph 16), and that Karalis will
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pregame.com (Exhibit "A", Paragraph 18). The Agreement further restricts Kalaris' use
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account holder of any Social Site accounts, including Twitter handles, utilized by
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Defendant Karalis in connection with the production of content. Karalis was further
obligated to provide the current usemame and password for all such accounts to Plaintiff
and was prohibited from changing said passwords without Plaintiff's prior written
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The Addendum included a liquidated damages clause specifying damages for each and
every violation of the provisions outlined above. (Exhibit "B", Paragraph 4).
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"resign" from his contractual relationship with Pregame LLC. Upon information and
belief Karalis was induced to do so by an offer from a direct competitor to Pregame LLC.
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Pregame.com without prior written consent of the Plaintiff. (Exhibit "B", Paragraph 3).
consent. Karalis was also forbidden from referencing any third party competitor to
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Subsequently Karalis has engaged in conduct in direct violation of his obligations and
Pregame LLC's rights under the Agreement. Such violations have been ongoing and
continuous and have caused substantial damage to Pregame LLC.
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(Breach of Contract)
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though said paragraphs were fully set forth and incorporates the same herein by
reference.
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A valid and existing contract for was entered into between Plaintiff and
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Defendants on or about June 18, 2012 in the form of the Agreement and in or around
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That Pregame LLC fully performed each and every one of its obligations
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failing to provide content to Pregame LLC since on or about June 18, 2014 and instead
providing such content to a competitor of Pregame LLC.
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of Pregame LLC through such mediums without prior written consent of the Plaintiff.
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That it has been necessary for Plaintiff to retain the services of an attorney
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IV.
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seizing control of the user account for the Twitter handle "@VegasRunner," and
continuing to use the Nom de Gambling of 'Vegas Runner" and referencing competitors
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though said paragraphs were fully set forth and incorporates the same herein by
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reference.
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terminate, and otherwise failing to abide by the binding terms of, the Contracts despite
Plaintiff's full performance of its obligations thereunder.
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That it has been necessary for Plaintiff to retain the services of attorneys to
prosecute this action, and Defendants should be required to pay reasonable attorneys'
fees and costs of prosecuting same.
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though said paragraphs were fully set forth and incorporates the same herein by
reference.
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action to enforce or interpret any term of the Agreement is entitled to an award of all
reasonable legal costs and fees associated with such an action.
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compelled to file the instant case which is the type of "action" contemplated by
Paragraph 26 of the Agreement.
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For such other and further relief as the Court deems just and proper.
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EXHIBIT "A"
EXHIBIT "A"
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included in such discounted offerings over the cowoc of any calendar month
consent of the Content Provider.
without the
(20) days after this Agreement is terminated Content Provider will certify in
writing to Pregame that Content Provider has complied with these obligations.
16. No Conflicting Obligations. During the term of this Agreement and for a
period of two (2) years after tennination or expiration, except as may be
expressly pennitted on Exhibit A. Content Provider will not. directly or
indirectly, (i) be involved with a business which is in competition with
Pregame, or (ii) divert or attempt to divert any business that Pregame has
enjoyed. After the termination of this Agreement. Content Provider is
prohibited from contacting. attempting to contact, solicit any customer, buyer
or person or providing any content to whom Content Provider had contact
with while fulfilling its obligations under this Agreement.
17. Third Partv Placement. Unless otherwise stated on stated on Exhibit A, if
Pregame places Content with web sites or other distribution mechanisms
operated by one or more third parties (each a
Party Site"). Content
Provider agrees to waive Content Provider's relationship indefinitely with
such Third Party Site, so that Content Provider aJ,'l'ees to never contact, solicit.
accept employment, offer services under any assumed name with that Third
Party Site both during and after the expiration of this Agreement.
18. Non-Solicitation. Any attempt on the part of Content Provider to induce an
employee or customer to lel!Ve Pregame, or any effort by Content Provider to
interfere with any relationship with Pregame employees or other content
providers would be hannful and damaging to the Pregame. Therefore,
Content Provider ag=s tlwt Juring
t.:nu of this Agn....,ment and after
termination of this Agreement, Content Provider will not in any way directly
or indirectly:
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lx:cween
Provider and Pregame with respect to any Content or other
services. There are no other promises, representations. understandings or
inducements other than those specifically set forth in this Agreement.
28.1ndemnitv. Content Provider "ill indemnify. defend and hold harmless
Pregame from and against any claims or actions by any other party, arising
from or related 10 the provision of the Content by Content Pro\ider or
Pregame's use thereof and pay all liabilities, costs (including attorneys fees)
and expenses incurred by Pregame in connection therewith.
29. Headings. Headings are inserted for the convenience of the parties only and
are not to be considered when interpreting this Agreement
30. Interpretation. Words in the singular mean and include the plwal and vice
versa. Words in the =uline mean and include the feminine and vice versa.
The phrase
shall mean
without limitation.
31. Survival. The provisions ofSeccions 13, 14, I 5, 18, 19, 20, 21, 28 and
3 I shall survive the cxpir.uion or termination of this Agreement for any
reason.
32. Governing Law. This Agreement and the performance under this Agreement,
and all suits and special proceedings under this Agreement, be construed in
accordance with and governed by the laws of the State of Nevada, without
reference to its choice oflaw provisions. All actions and
pertaining to this Agreement will be filed and litigated exclusively in any state
court or federal court located in Clark County, Nevada. Pregame and Content
Provider expressly consent to the jurisdiction of these courts, agree lllat venue
is proper in these courts and company and you consent to service of process
made at your l""'t kno"'11 address in companies records.
33. Severability. In the event that any of the provisions of this Agreement are
held to be invalid or unenforceable in whole or in part all other provisions
will nevertheless continue to be valid and enforceable with the invalid or
\Dlenforceable parts severed from the remainder of this Agreement
34. Waiver. The waiver by either party of a breach. default, delay or omission of
any of the provisions of this Agreement by the other parry will not be
construed as a waiver of anr subsequent breach of the same or other
provisions.
35. Blogging Content In the event Content Provider proYides any content to blog
sites, bulletin boards or of.IJer couuuunicalioo fonuns busted by Pregame,
Content Provider agrees to be bound by and strictly comply with the Terms of
Use located at www.pregame.comlterrns-<>f-service
IN WITNESS WHEREOF, the panies have duly executed this Agreement as of the
dates set forth below intending that this Agreement be effective as of the Effective Date.
Date
Stateof
County of
NJ.W[{!
ClC.l\ [L-
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On this. the
day or
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me a nol;W;Y public. the
undersigned officer, personally appeared , . IVPj
U1111 (
known 1o me
(or satisfactorily proven) to be the person whose nambiSSubscribed to the within
instrument. and acknowledged thai he executed the same for the pwposes therein
contained.
J.hibit A
than 39%.
If Content packages are sold in which the promised delivery of the Content
extends beyond the calendar month of purchase, the accounting of net revenue
corresponds with the actual delivery of the Content (i.e. the percentage of the
Exhibit A
Content Services Agreement
content actually delivered in a given calendar month \\ill dictate the percentage of
package's net revenue allotted to that
F?r
a Content package
is purchased on April!, and the Content 1s promised to be dehvered through
May 31, then the percentage of revenue allotted to April will be 50%, with 50"/o
allotted to May.
Section 16: Notwithstanding the provisions of the first sentence of Section 16, Content
Provider may provide the Content to competitors of Pregame after the term of this
Agreement
Section 19: Pregame shall not mnke any further use of the Nom De Gambling upon
termination of this Agreement and, effective upon such termination, assigns to Content
Provider all right, title and interest in and to the Nom De Gambling.
Exhibit A
Content Services Agreement
EXHIBIT "8"
EXHIBIT "8"
AGREf.,\.1EST
Pregame" or other logo. Content Provider covenants and agrees to maintain the
accuracy of each statement in this Section for the duration of the Agreement.
4.
Liquidated Damages. IN THE EVENT CONTENT PROVIDER
UTILIZES THE ACCOUNT IN VIOLA.TION OF SECTION THEN CONTENT
PROVIDER AGREES THAT PREGAME WILL BE DAMAGED IN AN AMOUNT
WHICH IS NOT READILY ASCERTAINABLE, DUE TO THE SPECIAL NATURE
OF THE TRANSACTIONS CONTEMPLA.TED BY THIS AGREEMENT AND
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN.
FURTHER, CONTENT PROVIDER WISHES TO HAVE A LIMITATION PLA.CED
UPON ITS POTENTIAL LIABILITY TO PREGAME IN THE EVENT OF SUCH A
BREACH. THEREFORE, CONTENT PROVIDER AND PREGAME HEREBY
AGREE THAT CONTENT PROVIDER SHALL PAY THE SUM OF $50.00 PER
MARKETING MESSAGE TO ACCOUNT FOLLOWER (E.G., 1,000
FOLLOWERS- ONE MESSAGE- $50,000) IN VIOLA.TION OF SECTION .
PREGAME AND CONTENT PROVIDER HEREBY EXPRESSLY AGREE THAT
SUCH PAYMENT BY CONTENT PROVIDER IS REASONABLE AND IT
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PREGAME AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY.
CONTENT PROVIDER AND PREGAME ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Content Provider Initials: _,C:...,*-;;:..__ _
Pregame Initials:
f..,
5.
Content Control. Content Provider shall be responsible for all
content posted or otherwise transmitted through the Account. Content Provider
shall indemnify, defend and hold harmless Pregame from and against any and all
claims (including all liabilities, costs. expenses (such as attorney fees),
obligations and damages) in any way arising from or related to the Account.
6.
Effect of Termination. Content Provider's ability to access and use
of all Accounts pursuant to Section of this Addendum shall automatically
terminate upon termination or expiration of the Agreement. All other provisions
of this Addendum shall survive termination or expiration of the Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Social
Network Addendum as of the dates set forth below intending that this Addendum
be effective as of the Effective Date.
PREGAMELLC
By:
Name:
Trtle:
Date:
__
Name: (nOK5r,
C. E 0
Date:
lzt/09
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DISTRICT COURT
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Case No:
Dept. No:
vs.
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
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Defendant.
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$270.00
DATED
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JEFFRE J_. G
R, ESQ.
Nevada ar No 08078
3301 N.
alo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Electronically Filed
07/1612014 04:14:05 PM
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DISTRICT COURT
PREGAME LLC,
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Defendant.
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COMES NOW, Plaintiff, PREGAME LLC, by and through its counsel, DENNETI
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WINSPEAR, and hereby submits the following Motion pursuant to Article 6 of the Nevada
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This Motion is made and based upon the pleadings and papers on file herein, the Points
and Authorities cited, and oral argument of counsel, if any, at the time of hearing.
DATEDthis
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dayofJuly,2014.
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JEFFREY
Nevada Ba No. 0
8
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
NOTICE OF MOTION
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TO:
YOU, AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the undersigned counsel
will bring the above and foregoing PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION on for hearing before the above-entitled Court in
Dept.No.4onthe
DATED this
16 dayof SEPTEMBER
,2014atthehourof
or
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JEFFREY . ALL!
Nevada Ba
3301 N. B
o Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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I.
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SYNOPSIS
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related content of interest to sports fans and sports bettors. Some of that content is provided
free of charge to viewers of the website and other content, designated "premium" content, can
only be accessed through a paid subscription. Premium content subscription fees are a main
source of revenue for Plaintiff's business.
13), that Karalis will not undertake any conflicting obligations (Exhibit "1 ", Paragraph 16), and
that Karalis will not attempt to induce employees or customers of Plaintiff to leave Pregame LLC
or pregame.com (Exhibit "1", Paragraph 18). The Agreement further restricts Kalaris' use of the
Nom De Gambling "Vegas Runner."
Pursuant to the Addendum Plaintiff was entitled to be the registered account holder of
any Social Site accounts, including Twitter handles, utilized by Defendant Karalis in connection
with the production of content. Karalis was further obligated to provide the current usemame
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and password for all such accounts to Plaintiff and was prohibited from changing said passwords
without Plaintiffs prior written consent. Finally, Karalis was forbidden from referencing any third
party competitor to pregame.com without prior written consent of the Plaintiff.
(Exhibit ''2",
Paragraph 3). The Addendum included a liquidated damages clause specifying damages for
each and every violation of the provisions outlined above. (Exhibit "2", Paragraph 4).
Nevertheless, on or about June 18, 2014 Defendant Karalis attempted to "resign" from
his contractual relationship with Pregame LLC. Upon information and belief Karalis was induced
to do so by an offer from a direct competitor to Pregame LLC.
engaged in conduct in direct violation of his obligations and Pregame LLC's rights under the
Agreement. Such violations have been ongoing and continuous and have caused substantial
damage to Pregame LLC. The nature of the damage to Pregame LLC is irreparable Inasmuch
as the content which Karalis is obligated to provide to Pregame LLC for distribution is being
provided to a competitor. Once distributed to the public by the competitor such content cannot
be "undistributed" and the value of that content is lost to Pregame LLC forever. In addition, the
on-going disclosure of information related to Pregame LLC by Karalis further results in
irreparable harm as such information, confidential and otherwise, cannot be retrieved once made
public by Karalis.
Ill.
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LEGAL STANDARD
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Article 6, section 6 of the Nevada Constitution specifically grants the district courts power
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to issue writs of injunction. The basis for granting injunctive relief is equity. Sherman v. Clark, 4
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Nev. 138 {1868).
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Coronet Homes, Inc. v. My/an, 84 Nev. 435, 437, 442 P.2d 901, 902 (1968), and Thom v.
Sweeney, 12 Nev. 251 {1877).
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temporary restraining orders, (2) preliminary injunctions, and {3) permanent injunctions. NRCP
65 {2004 ). The purpose of a temporary restraining order is to prevent irreparable harm until the
parties can be heard on a motion for preliminary injunction. A preliminary injunction is designed
to continue to protect the applicant from irreparable injury and preserve or restore the status quo
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pending final judgment. Ottenheimber v. Real Estate Division, 91 Nev. 338, 342, 535 P.2d 1284,
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1285 (1975) and Memory Gardens of Las Vegas, Inc. v. Pet Ponderosa Memorial Gardens, Inc.,
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Although no precise burden of proof must be met by the party seeking injunctive relief,
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courts traditionally consider the following equitable criteria: (a) the threat of irreparable injury; (b)
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the plaintiffs likelihood of success on the merits; (c) the relative interests of the parties, or the
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balance of hardships on each party; and (d) the interests of the public. See, e.g. Miller v. Cal.
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plaintiffs likelihood of success on the merits are the facts most often cited. See e.g., Sobol v.
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Capital Mgmt. Consultants, Inc., 102 Nev. 444, 446, 726 P.2d 335, 337 (1986).
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ARGUMENT
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A.
"Injunctive relief is not available in the absence of actual or threatening injury, loss or
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damage." Berryman v. lntemationa/Brotherhood of E/ec. Workers, 82 Nev. 277, 280, 416 P.2d
387, 388 (1966).
Clearly the
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"A preliminary injunction is available upon a showing that the party seeking it enjoys a
reasonable probability of success on the merits" Sobol v. Capital Management Consultants, Inc.
102 Nev. 444, 726 P.2d 335 (1986) Here, Plaintiff will easily be able to establish the existence of
Restatement of Contracts 19-24; Lamoureux v. Burrillvi/le Racing Ass'n, 91 R.I. 94, 161 A.2d
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213, 215 (1960), that Kalaris' conduct constitutes a breach of that contract and that as a result of
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Contrarily, Kalaris has no defense to Plaintiffs claim of breach. Essentially Kalaris simply
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decided to unilaterally extricate himself from the relationship when something which he
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perceived to be a better deal came along. The contract provides no such mechanism for
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C.
"1", Paragraph 9)
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Karalis knew of his contractual obligation to provide exclusive content to Pregame LLC.
In fact, Karalis has been operating under that obligation for the past several years. Karalis' only
motivation for breaching the contract with Pregame LLC was an offer of more money from a
competitor. The ability to obtain Karalis' content for publication was the very essence of the
contract from Pregame LLC's point of view. That exclusive content was the sole benefrt of the
bargain between the parties to be received by Pregame LLC.
Further, it cannot be reasonably argued that Karalis was not aware that his unilateral
decision to tenninate the relationship prior to the end of the contract tenn was not contrary to a
vested interests of Pregame LLC.
generated by publication of his content he was directly aware of the substantial extent of the
hann Pregame LLC would suffer if he decided to simply stop providing the content to Pregame
LLC and start providing it instead to a competitor.
Because Karalis is the only party in this case engaged in inequitable conduct, it is not
appropriate for the court to consider whatever hardship may resuH to him by issue of a temporary
restraining order and/or preliminary injunction. The temporary restraining order followed by a
preliminary injunction should be granted.
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D.
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The public interest presented in this case is the need for public confidence when entering
into commercial contracts that mutually beneficial, longstanding contractual relationships may
not simply be abandoned by one party when a perceived "better deal" comes along. The ability
of a non-breaching party to quickly and efficiently enforce its rights under a contract must be
maintained. To allow the obvious, unjustified and continuous breach of a service contract, such
as the one in this case, while forcing the aggrieved party to pursue protracted litigation to enforce
its rights undennines the expectations of businesses and citizens who rely every day on those
promises to perfonn. The timely and economical remedy of a TRO/ preliminary injunction early
on is an essential element in maintaining the effectiveness and enforceability of commercial
28
8
contracts.
v.
CONCLUSION
4
5
6
7
For the above stated reasons this Court should grant the temporary restraining order
immediately and set a r:aring and grant a preliminary injunction on the same grounds.
DATED this
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JEFFREY
LLIH , SQ.
Nevada Ba o. 00607
3301 N. Bu lo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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EXHIBIT "1"
EXHIBIT "1"
IN CONSIDERA nON OF the mattm described ahove and of the mutUal benefits and
obligations set forth in this Agreement, the parties to this Agreement agree as follows:
I.
Content Description.
publish. display, reformat and distribute the Content via any means. Unless
staled otherwise on Exhil>it A (i) this license willl>e exciLLSive and
(ri) Pregame may sublicense its rights hereunder as a syndicator of the
ConteuL The pmtjes acknowledge and agree that some mutually agreed upon
portion of the Content (though no less than HI"A. of overall ConlCnt) v.ill be
provided to end users at no charge.
3. Bundling License, Pregame may
the content of other content providers.
"J'f...
-------------------included in such discoWlted offerings over !he cour.;e of any calendar month
without the express consent of the Content Provider.
6. Content Pro'-idcr Promotional Effort. Content Provider sball use its best
effons to (i} promote the sale of the Content through Pregame's website; and
(ii) promote other content pn"iden: publishing content on Pregame s
website.
7. Quantitv of ContenL Content Provider shall produce content commensurate
with at least 30 hours of elTon per month (as measured by a n:asooably
content provider} and the Content produced must be at least of the
quality of content produced by similarly siwated content pro\iders.
terminate this Agreement. during the thirty (30) day notice period required
(20) days after this Agn:ement is terminated Content Provider will certify in
writing to Pregame that Content Provider has complied with these obligations.
16. No Conf!jcting Oblications. During the term of this Agreement and for a
period of two (2) years after termination or expinllion. except as may be
expressly pennined on Exhibit A. Content Pro'ider will not. din:ctly or
of
':j'l-.
-- ......... _ , _____
________
bt:tween
Provid.:r and Pregame witb respect w any Conlelll or other
services. There arc DO other promises, represenllllions. understandings or
inducements other than those specinc:.ally set forth in this Agreement.
28. Indemnity. Content Provider ,.;II indemnify. defend and hold harmless
Pregame from and against any claims or actions by any other party, arising
from or relllkd 10 the proision of tbe Content by Content Proider or
Pregame's use thereof and pay all liabilities, COSIS (including attorneys fees)
and expenses incurred by Pregame in conoection therewith.
29. Headings. Headings are insel'll:d for the convenience of the parties only and
are not to be considered wben interpreting this Agreement.
30. lnteT!'!!!arion. Words in the singular mean and include the plwal and vice
versa. Wcmis in the masculine mean and include the feminine and vice versa.
The pluase
shall mean
without limitation."
31. Survival. The provisions of Sections 13, 14, IS, 1&, 19, 20, 21. 2& and
31 sbal1 SIJTvivc the expiration or tcnnination of this Agreement for any
reason.
32. Governing Law. This Agreement and !he performance under tbis Agn:ement,
and all suits and special proceedings under this Agreement, be construed in
ecx:ordaoce with and governed by the laws of the Stale of Nevada, without
refemu:e to its choice of law provisions. All actions and proceedings
pertaining 10 this Agreement will be filed and
in any stale
court or federal court located in Clad County, Nevada. Pregame and Comenl
Provider e>o:pressly consent to the
of these courts, agree that venue
is proper iD tbese couns and company and you consent 10 se,tice of process
mode 81 your last knoY;n address in companies records.
33. Severability. In the event that any of the provisions of this Agreement are
held to be invalid or unenfarc<:able in whole or in part. all other provisions
will nevertheless continue 10 be valid and enfo=able with the iDvalid or
\Dlcnfon:eable parts severed from the remainder of this Agreement.
34. Waiver. The waiver by either pany of a breach. default, delay or omission of
any of the provisions of this AGJCCIIIenl by the ather party ,.;u not be
coostrued as a waiver of any subsequent br.:ach of the same or other
proisioos.
35. Slogging ConienL In the event CDDtcnt Proider proides any content to blog
sites, bulletio botmls or other communi....Uoo fununs bustt:d by Pregame,
Cootenl Provider agrees to be bound by and strictly comply with the Terms of
Use lacaled at .....,.......rnegan.e.comlterms-of-scrvice
__,
IN WITNESS WHEREOF, the parties have duly executed lh1s Agreement as ofthe
dales set forth below inl.ellding that this Agreement be effective as of the Effec:live Datc.
Stale of
f\JJ lM[1
County of
(' \
(.t\' !L--
On Ibis. the
IV
day of
iJ.\. nJ, 20
dVPin
name
))ale occWl>.
Net Revenues from bWlfiled content shall be divided pro-rata among the
cootribUIDrs.
Compensation Calcul!!lion
1. {Net Revenues from Content) X (the Commission R.au:)
=Gross Commissions
If Content packajjes an: sold iD which the promised delivery of the Content
extends beyond the calendar month of purchase. the accounting of net revenue
corresponds with the actual delivery of the Content (i.e. the percentage oftbe
Exhibit A
C0111ent Servke> A5J"""m"''"'-DI
Exhibit A
EXHIBIT "2"
EXHIBIT "2"
A.
Whereas, Pregame and Content Provider have previouslY; entered
into a Content Services Agreement with an effective date of I 0 /8/:;up?
(the "Agreement") pursuant to which Content Provider provides to Pre!iame
certain content regarding upcoming and past sporting events and sports related
information (collectively, the "Content").
B.
Whereas, Content Provider desires to establish and maintain an
account on one or more social networking sites such as Twitter, Facebook and
MySpace (collectively, the "Social Sites") on which Content Provider will Promote
the Content.
C.
Whereas, the parties desire to establish certain understandings as
to Content Provider's use of Social Sites as set forth in this Agreement.
IN CONSIDERATION OF the matters described above and of the mutual
benefits and
set forth in this Addendum, the parties agree as follows:
1.
Defined Terms and Recitals. Capitalized terms not defined herein
shall have the meaning given to them in the Agreement. The above-referenced
Recitals are hereby incorporated in this Amendment by this reference. Except as
modified by this Amendment. the Agreement is hereby ratified and remains in tun
force and effect.
2.
Preaame Network. Pregame operates a website at
www.preaame.com (the 'Website") to which Content Provider provides the
Content As one of its features, the Website provides marketing and networking
functionality (the "Pregame Network").
3.
Promotion on the Precame Network. Content Provider may
promote its presence on Social Sites through the Pregame Network if and only if
all of the following are true: (i) Pregame is the registered account holder of the
applicable Social Site account (each an "Account"); (ii) Content Provider has
delivered the current user name and password for the Account to Pregame and
does not change these items without Pregame's prior written consent
(iii) Content provider shall not reference any third party (eg a competitor
Pregame.com) through the Account without prior written permission of Pregame;
and (iv) Pregame may modify the look and feel (but not the content) of the Social
Pages associated with the Account, including placement a "Sponsored by
Pregame" or other logo. Content Provider covenants and agrees to maintain the
accuracy of each statement in this Section for the duration of the Agreement.
4.
Uguidated Damages. IN THE EVENT CONTENT PROVIDER
UTILIZES THE ACCOUNT IN VIOLATION OF SECTION THEN CONTENT
PROVIDER AGREES THAT PREGAME WILL BE DAMAGED IN AN AMOUNT
WHICH IS NOT READILY ASCERTAINABLE. DUE TO THE SPECIAL NATURE
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN.
FURTHER, CONTENT PROVIDER WISHES TO HAVE A UMITATION PLACED
UPON ITS POTENTIAL LIABIUTY TO PREGAME IN THE EVENT OF SUCH A
BREACH. THEREFORE, CONTENT PROVIDER AND PREGAME HEREBY
AGREE THAT CONTENT PROVIDER SHALL PAY THE SUM OF $50.00 PER
MARKETING MESSAGE TO ACCOUNT FOLLOWER (E.G., 1,000
FOLLOWERS- ONE MESSAGE $50,000) IN VIOLATION OF SECTION.
PREGAME AND CONTENT PROVIDER HEREBY EXPRESSLY AGREE THAT
SUCH PAYMENT BY CONTENT PROVIDER IS REASONABLE AND IT
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PREGAME AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENAl.TY.
CONTENT PROVIDER AND PREGAME ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Content Provider Initials:
_.{."""----
Pregame Initials:
f3
5.
Content Control Content Provider shall be responsible for all
content posted or otherwise transmitted through the Account. Content Provider
shall indemnify, defend and hold harmless Pregame from and against any and all
claims (including all fiabilities. costs, expenses (such as attorney fees),
obligations and damages) in any way arising from or related to the Account
6.
Effect of Termination. Content Provider's ability to access and use
of all Accounts pursuant to Section of this Addendum shall automatically
terminate upon terminatlon or expiration of the Agreement All other provisions
of this Addendum shall survive termination or expiration of the Agreement
IN WITNESS WHEREOF, the parties have duly executed this Social
Network Addendum as of the dates set forth below intending that this Addendum
be effective as of the Effective Date.
PREGAMELLC
By:
Name:
Title:
By:#? ,
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.,
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DISTRICT COURT
PREGAME LLC,
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Plaintiff,
11
vs.
12
JOHN KARALIS,
case No:
Dept No:
13
Defendant
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2.
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3.
Affiant is over the age of 18 years and can testify to the matters herein of his own
20
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3.
Affiant provides this Affidavit in support of Pregame LLC's Motion for Temporary
Plaintiff
operates
website
residing
on
the
wortd
wide
web
at
24
"www.pregame.com" (hereinafter "pregame. com or 'the website'). Through the website Plaintiff
25
provides sports related content of interest to sports fans and sports bettors.
26
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I
I
I'
Some of that
designated
Premium content
'
i
'
5.
entered into a Social Nelwork Addendum ("the Addendum") with Defendant Karalis.
Restraining Order and Preliminary Injunction as Exhibtts A" and "8", respectively.
6.
parties which was replaced by the Agreement. The parties have operated under the current and
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12
7.
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Defendant Karalis, as well as the right to bundle such content with that of other providers. In
15
addition, the Agreement provides that Karalis may not publicly disclose information related to his
16
relationship with Pregame LLC, that Karalls will not undertake any conflicting obligations, and
17
that Karalis will not attempt to induce employees or customers of Plaintiff to leave Pregame LLC
18
or pregame. com. The Agreement further restricts Kalaris' use of the Nom De Gambling 'Vegas
19
Runner".
20
8.
21
holder of any Social Site accounts, including Twitter handles, utilized by Defendant Karalis in
1
' connection with the production of contenl Karalis was further obligated to provide the current
23
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, license to "publish, display, reformat and distribute" all sports related content generated by
14
m
>
By its express terms the Agreement was to continue for a period of 5 years,
terminating in June 2017. The Agreement followed a previous similar contract between the
10
13
The
Agreement and the Addendum are attached to Pregame LLC's Motion for Temporary
>-
On or about June 18, 2012 Pregame LLC entered into a Content Services
Agreement ("the Agreement") with Defendant Karalis, and in or around 2009 Pregame LLC
usemame and password for all such a=unts to Plaintiff and was prohibited from changing said
passwords without Plaintiffs prior written consent. Kanalis was also forbidden from referencing
any third party competitor to pregame. com on Social Sites without prior written consent of the
Pregame LLC. The Addendum includes a liquidated damages clause specifying damages for
each and every violation of the provisions outlined in this paragraph.
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9.
On or about June 18, 2014 Defendant Karalis attempted to "resign" from his
contractual relationship with Pregame LLC. Upon information and belief Karalis was induced to
do so by an offer from a direct competitor to Pregame LLC. Since that time Karalis has engaged
in conduct in direct violation of his obligations and Pregame LLC's rights under the Agreement.
Those violations have been ongoing and continuous and have caused substantial damage to
' Pregame LLC.
content which Karalis is obligated to provide to Pregame LLC for distribution is being provided to
a competitor.
"undistributed" and the value of that content is lost to Pregame LLC forever. in addition, the ongoing disclosure of information related to Pregame LLC by Karalis further results in irreparable
harm as such information, confidential and otherwise, cannot be retrieved once made public by
Karalis.
10.
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Electronically Filed
..
0810412014 11:05:25 AM
..,.....-
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DISTRICT COURT
PREGAME LLC,
10
Plaintiff,
11
vs.
12
JOHN KARALIS,
.J
>(
13
Defendant.
14
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>>(
COMES NOW, The Court, having reviewed Plaintiff's Ex-Parte Motion for Temporary
Restraining Order and, good cause appearing, hereby issues its Temporary Restraining Order
18
as follows:
Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law,
19
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
20
Ex-Parte Motion for Temporary Restraining Order is GRANTED as PREGAME LLC has
21
demonstrated a reasonable probability of success on the merits of its claim for breach of contract
22
and if Defendant Karalis conduct is allowed to continue, such conduct will cause irreparable
23
harm to PREGAME LLC for which mere compensatory damages is an inadequate remedy,
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is prohibited from providing content.. as that term is defined in the Content Services Agreement
between the parties, to any other entity including, but not limited to, www.PhillyGodfather.com or
"
,.
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any other competitor of PREGAME LLC, or otherwise engaging in conduct which competes with
the normal business of PREGAME LLC until further Order of the Court, or no later than
Restraining Order shall take effect immediately upon the filing of this Order, and its terms shall
1'ik
/ol;;z..y
20
21
Submitted by:
, LLP
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-t \ Ia 1'2l>
DATEDthis
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is prohibited from disclosing any confidential or non-public information related to Pregame LLC
19
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l!o 1 2.o 14 .
JEFFRE L. AL
Nevada B r
3301 N. Bu lo Dri , Suite 195
Las Vegas, evada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
'r .:.1/'fl
bj
liJ'
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ectronically Filed
Fil;., with
08126/2014 04:45:47 PM
89.!er.c!2!.
'
...
.. -
HEARING REQUIRED
DATE:
T3ME:
6
7
DISTRICT COURT
CLARKCOUNTY,NEVADA
DEPARTMENT 4
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10
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12
.J
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Plaintiff,
vs.
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
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0
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Defendant.
16
17
COMES NOW Plaintiff PREGAME LLC and petitions this court for its order to the
18
Defendant JOHN KARALIS to show cause why he should not be held in this Court's contempt for
19
his failure to abide by the Court's Temporary Restraining Order duly issued in this matter.
20
'7J>
DATED this
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By=:;-;f;t::;;A
GA
-1-;-;:IEo;::R;-,E;::;S:vQ".----
JEFFR Y
Nevada
3301 N. Bu
Las Vegas,
Telephone:
Facsimile:
No. 08078
alo Drive, Suite 195
Nevada 89129
(702) 839-1100
(702) 839-1113
1
2
NOTICE OF MOTION
TO:
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4
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6
7
8
DATED this ___ day of
gust, 2014.
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"
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JEFFREY
Nevada Bar
. 008078
3301 N. Buffa o Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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STATE OF NEVADA )
) ss:
COUNTY OF CLARK )
JEFFREY L. GALLIHER, being first duly swom according to law, deposes and says that:
1.
I am an attorney With the law firm of Dennett Winspear LLC, duly licensed to
practice law in the State of Nevada and counsel of record for the Plaintiff herein. My bar number
is 8078.
2.
That on or about August 1, 2014 this court issued a Temporary Restraining Order
3.
That on or about August 14, 2014 this court issued its order extending the
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4.
That after multiple attempts Defendant John Karalls was personally served with
That since being served with the Temporary Restraining Order Defendant Karalis
has continuously and repeatedly failed to comply with the restrictions contained therein.
Specifically, Karalis continues provide content to a direct competitor of Plaintiff PREGAME LLC
and also continues to utilize the Twitter handle "@VegasRunner" to direct internet traffic (i.e.
customers) away from Pregame.com and to a direct competitor's website in direct violation of the
prohibitions contained in the Temporary Restraining Order.
6.
That as a result of Karalis' ongoing failure to comply with this Court's order
Plaintiff PREGAME LLC continues to suffer irreparable harm which the order was specifically
intended to prevent
7.
That absent this Court's immediate and strict enforcement of its duly issued order
Plaintiff will continue to suffer irreparable harm at the hands of the Defendant.
8.
This request for an order shortening time is made in good faith and further based
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before me this
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August, 2014.
')0
day of
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of
J?;
rtf...
day
be heard.
DATED:
t1u13:wi 28 ,
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On
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Defendant John Karalis prohibiting him from engaging in certain conduct and on Augusl14, 2014
14
this court issued its order extending the effective date of said Temporary Restraining Order to
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z 0
z
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Nevertheless, since being served with the Temporary Restraining Order Defendant
19
Karalis has continuously and repeatedly failed to comply with the restrictions contained therein.
20
21
LLC and also continues to utilize the Twitter handle "@VegasRunner" to conduct business,
22
including, but not limited to, directing internet traffic (i.e. customers) away from Pregame.com
23
and to a direct competitor's website in direct violation of the prohibitions contained in the
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As a result of Karalis' ongoing failure to comply with this Court's order Plaintiff PREGAME
LLC continues to suffer irreparable harm which the order was specifically intended to prevent.
Absent this Court's immediate and strict enforcement of its duly issued order Plaintiff will
continue to suffer irreparable harm at the hands of the Defendant.
1
2
3
4
5
Plaintiff therefore requests that this court issue an Order to Show Cause why Defendant
should not be held in contempt for his blatant, willful and ongoing failure to comply with the
court's Temporary Restraining Order.
Respectfully submitted this
1_,'0
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7
8
9
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11
<
JEFFREY . ALLI
Nevada Bar o. 00
8
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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EXHIBIT "1"
>
<
Electronically Filed
08/04/2014 11:05:25 AM
..:-:
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7
DISTRICT COURT
PREGAME LLC,
10
J
(
Plaintiff,
11
vs.
12
JOHN KARALIS,
13
q
Defendant.
14
...
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"'zz
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16
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Ill
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COMES NOW, The Court. having reviewed Plaintiffs Ex-Parte MoHon for Temporary
Restraining Order and, good cause appearing, hereby issues its Temporal)' Restraining Order
as follows:
Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
Ex-Parte Motion for Temporary Restraining Order is GRANTED as PREGAME LLC has
demonstrated a reasonable probabinty of success on the merits of its claim for breach of contract
and if Defendant Karalls conduct Is allowed to continue, such conduct will cause irreparable
harm to PREGAME LLC for which mere compensatory damages Is an inadequate remedy,
pursuant to NRS 33.010.
IT IS FURllfER ORDERED, ADJUDGED AND DECREED that Defendant John Karalis
is prohibited from providing content, as that term Is defined in the Content Services Agreement
between the parties, to any other entity including, but not limited to, www.PhlllyGodfather.com or
_.,,
.-
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any other competitor of PREGAME LLC, or otherwise engaging In conduct which competes with
the nonnal business of PREGAME LLC until further Order of the Court, or no later than
is prohibited from utilizing the Twitter handle "@Vegas Runnel" and the Nom de Gambling
"Vegas Runner" until further Order of the Court.
14 .
is prohibited from disclosing any confidential or non-public infonnation related to Pregame LLC
until further Order of the Court,
+ \\Q 'li>L f.
or no later than
Restraining Order shall take elfed immediately upon the filing of this Order, and Hs terms shall
be enforced under further Order of this Court.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC
shall post a bond or other suitable security in the amount of ONE THOUSAND DOLLARS
($1,000.00) in ac:cordance with NRCP 65 (c) as seculity for such costs and damages as may be
Incurred
or suffened by any party who is found to have been wrongfully enjoined or restrained in
this action.
DATEDthls
/,).;,;._;-
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I!o 1 2o
or no later than
Submitted by:
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Eleelronically Filed
0811512014 01:40:16 PM
1
2
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DISTRICT COURT
PREGAME LLC,
10
Plaintiff,
11
vs.
12
"
JOHN KARALIS,
..
13
14
">
15
....<
D
Defendanl
ORDER EXTENDING TEMPORARY RESTRAINING ORDER
COMES NOW, The Court having conducted a status cheek in the above-referenced
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matter and, good cause appearing, hereby extends the Temporary Restraining Order issude by
the court on August 1, 2014 for a period of 15 days from the current date of expiration as
fonows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LlC's
Ex-Parte Motion for Temporary Restraining Order is EXTENDED until further Order of the Court
or no rater than
ZO llf.
between the parties, to any other entity including, but not fimlted to, WINW.PhlllyGodfalher.com or
any other competitor of PREGAME LLC, or olheJWise engaging in conduct which competes with
the nonnal business of PREGAME LLC until further Order of the Court or no later than
zq.ft1_ 2DIL\-.
'
1
2
3
4
5
6
7
8
9
10
11
J
....
....
...
12
13
14
">
15
16
bJ
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0
is prohibited from disclosing any confidential or non-public lnfonnallon related to Pregame LLC
until further Order of the COUrt, or no later than
au fOMil. zq ..ftt
jt+.&.
day of
at
18
Submitted by;
20
21
22
23
24
25
17
19
t1y
Nevada
3301 N.
lo Drive, SUite 195
Las Vegas. Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
AUomeys for Plaintiff Pregame LLC
26
27
28
0 >t...:>
OFFICIAL RECEIPT
...
District Court Clerk or the Court 200 Lewis Ave, 3rd Floor Las Vegas, NV 89101
Payor
Receipt
Pregame.com
No.
2014-92166-CCCLK
TfallllaCIIon Date
08N1!2014
I Dei@iiliOii
Amaun1 Paid
A-14-703627-C
PAYMENT TOTAL
Ctleck
Tendered
Tolal Telldered
Change
08/1112014
02:45PM
cashier
Slallan AIKO
OFFICIAL RECEIPT
Audit
34415997
_ ____:;1,!::ooo=.o=..JoI
. .
EXHIBIT "2"
Electronically Filed
ORIGINAL
...
1
2
3
4
5
08/19/2014 08:49:40 AM
6
7
DISTRICT COURT
9
10
Company
Plaintiff,
11
12
13
.
..
14
rv
vs.
JOHN KARAUS, an Individual DOES 1 lhrough
20; ROE COMPANIES 1 lluough 20; and ROE
CORPORATIONS 1 through 20, inclusive,
15
Defendant
16
17
18
19
20
21
SUMMONS- CIVIL
NoncE! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT
YOUR BEING HEARD UNLESS YOU RESPOND WITHIN 20- DAYS.
READ THE
INFORMA110N BELOW:
22
In lhe Complaint
23
1.
If you Intend to defend this lawsuit. Wilhin 20 days after this Summons is
24
served on you, exdustve of lhe day cf service, you mllllt do lhe following:
25
(a)
FDa with the Clellt of this Court. whose address is shown belOw, a
26
27
28
....
1
(b)
2
3
2.
against you for the reflef demanded In the Complaint. which could result In
3.
8
4.
15
16
have 45 days altar saMce of this Summons within which to file an Answer
or other responsive pleading to the Complaint.
13
14
17
18
11
12
If you Intend to seek the advice of an attorney In this matter, you should do
so promptly so that your response may be filed on time.
10
l
Unless you respond, your default will be entered upon appllc:ation of the
19
20
21
22
Submllted by;
DENNETT WINSPEAR, lLP
23
24
25
26
27
28
2
AfFIQAVIT OF SERVICE
STATBOFNEVADA
COUNTY OF CLARK
) ss
)
Estela Sandoval, being first duly swom, deposes and says: That Affiant is a
cidzen of the United States, over eighteen years
Nevada Private Investigator's License Number 873, and not a party to, nor interested in
the proceedings in which this affidavit is m11de. That Affiant received one (I) Ct1Pf of the
attached Temporary Restraining Order, Summons and Complaint entitled Pregame LLC
v. John Karalls, on the 1611> of August, 2014. On August 16,2014, the Affiant per$onally
served the above referenced documents upon Jolm Karalis at his place of residence
Estela Sandoval
'<
State
County of Clark
Subscnlled and sworn to before
Onthis
dayof2014,by
lnJvu.f:F---
EXHIBIT "3"
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Home
N"tification"s
...
Vegas Runner
@VegasRunner
Pro
.!., Me
Discover
TWEETS
PHOTOS/IJI005
FOLlOVIING
SDK
401
88
Tweets
I!:
BLACKSHEEP
Q ohillygodfather.com
(!I Jomed March 2009
Tweel
...
to Vegas Runner
3m
/tyl6VR #Damage
.!. Follow
<ifot.t.'l*
ft Vegas Runner
1m
#ReleaseYourlnnerNINJA RT
@ressurector740 I f*kin luv it.l know u
tweeted this crew was based in Asia B4 ..
On our Bruce Lee shit yo!
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I of I
...........
.......
...... n"'7c
8/20/2014 8:31AM
Electronically Filed
08/29/2014 08:37:51 AM
1
2
3
4
5
ORO
JEFFREY L. GALLIHER, ESQ.
Nevada Bar No. 008078
jgalliher@dennattwinspear.com
DENNETT WINSPEAR, LLP
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-11 00
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
6
7
DISTRICT COURT
PREGAME LLC,
10
"
<
Plaintiff,
11
vs.
12
JOHN KARALIS,
13
Defendant.
14
15
LIJ
z c
z
LIJ
0 <
16
YOU ARE HEREBY ORDERED to appear before the District Court, Dept. No. 4, on the
17
23 day of September, 2014, at the hour of 10:00 a.m. and to show cause, if any, why you should
16
tt- z"
19
20
21
Submitted by:
22
23
24
25
26
27
26
JEFFR
Nevada
3301 N.
lo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
'I
Electronically Filed
'I
1
09/11/2014 08:56:15 AM
'
,I AACC
1
il
I Attorney for
! gcneral@pandbbwyers.com
81
DISTRICT COURT
CLARK COUNTY, N.EVADA
-r-.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,
I PREGAME LLC, a Nevada Limited Liability 'CASE No.: A-14-703627-C
I
!Company,
Dt'JlL No.: XXUI
.
r.............................................-.
10
'11
12
13
14
\I
15
..
VS
16
1 through 20,
inclusive,
'
17
18
19
20
!i ...,
1
1
.. - - - -
Counterclaimant,
Vs.
1I I
! . .. Ji\M!T!
I. . ll.
: :. :, .. .-C a :NevtK!a ..
..1ab'l'
1 tty
22
Cnrnpa.ny. DOES
ROE ENT!T!ES l1Ot1,
21
23
ComJterdefend<mts
24
25
COivl.ES NOW, De.tendanl, JOHN KARALIS, by and through his attomey, DONN W
s !";,::;(,.
....l O.i" t,Je
' .aw
l
fi1rm, PR(JK<lP!l
'S' A;'
"'D BE AS
. 'LEY
<
!I"RCJ'K'()"'ll
, . , .J.,
.. .
. . . ;,,
: , an'l !"or ,,nswer
to
28 '
,I
l'
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Plaintiffs Complaint and Counterclaim against PlaintiU; admits, denies, answers, and alleges a>
J(>llows:
3
4
6
7
Comp<my duly organized pursuant to the laws of The State of N<>vada with it
10
11
2.
12
13
'14
3,
Answe.ring
15
16
17
utilization of Rule 1O(a) requires ... (2) pleading the basis t<x muning defendants by
18
other than their tnte identity, and c1 early speci(ying the connection between the
'19
intended defendants and the conduct, act.iv.ity, or omission upon which the cuuse of
20
21
22,1
allegations in said paragraph are imrulllcienlly p.!ed tmd provide no notice of the
23
parties or m:tiz,ns meant to be identified, nor does Plaintit'f provide the basis tor the
241
25
26
27
28
2.
4.
H.
GENERAL ALLEGATIONS
6
7
10
6.
'
Answering para&,'Taph 6 of Plaintiffs Complaint, Defendant admits in part and denie,
in parr. Defendant admits the alkgations '"ithin said paragraph with the exceptiml
10
being to the "in or around 2009" and denies this part. As to any remaining allegation ..
11
12
13
7.
14
15
S.
'16
17
18
right to bundk such conwnt with that of other providers. .As to any remainin .
19
20 1i
21
22
II
9.
II
23
25
27
Answering paragraph
J()
ll.
I,
i
I
fi
28 i' ''
24
26
HI.
FI.RST CLAIM FOR RELIEF
(Breach of Contract)
IV.
21.
6
7
22.
paragraph.
10
contained in
11
12
24,
paragraph,
13
14
15
16
17
26,
18
19
v.
20
21
{Attorneys f'et.'S and Costs)
22
23
27,
24
25
26
27
28
Answering paragraph 27 ofPlaintHl's Complaint, Defendant rept>ats and real leges its
answers tn Paragraphs l through 26,
28.
29.
30.
4
''ontained in said paragraph.
5
6
AFFIRMATIVE DEFENSES
8
9
10
I
II
11
i21
13
B.
Plaintiff has released and discharged Defendant !Tom all obligations which
.I
i4
15
C.
16
Plaintitrs ;1ctions an' bam.'d for inducement of Detendm1t \urder Duress :md Undui:
Influence.
17
iS
i9
D. The clBims nnd contentions of PlaintiiT as contained in the Complaint arc barred by
20
SLKh
performed thos
21
acts and/or omissions attributed to him ptmluant to, and in confonnance with
22
23
24
25
E.
26
P!aint.Ln's claims
{;;)1:
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28
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F.
,,,,
4
G. The Complaint and eacb cause of action thereof, is barred on the grounds tha
Defendant's materials
not 1
8
9
10
11
mllOUllt
of any smns of
Hl{>ney,
12
13
14
if any
15
'16
S]X'cillcally allege the items of special dumages claims, pursuant to Nevada Ruks o
11.
19
20 I
21 1
22
!i
231
24
251
26
I
J.
Defendant ulkgcs that. Plaintiti or other parties, persons, or en!lties, faikd to pe.rtbrrnl
'
anyl
K. Dekndant alleges :.hat prior to the tommencenwnt of this action, Defendant dalyj
i
pcrforrned, satislled and discharged all duties and obligations that it may have owei.rl
27
28
I
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to any and all parties involved, ariRi.ng ou1 of any and all agn''ements, repnosentatinns
unless and until pwvented from doing so and any duty owed by Defendant to Plaintir4
;
:1
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4
TWELfTH AFFIRMATIVE DKFENS!i:
5
L.
6
7
Def-endant alleges that Plaintiff tili!ed to meet conditions precedent to enf(,rcc any]
THIRTEENTH
TlVE DEFENSE
10
FOURTEENTH AFFIRM.ATJVE D:HJ;:NSE
1i
12
13
because Nevada Revised Statute, Chapter 42, as amended, deny this Defendant equal
14 IId
protection of the law un<.kr Anick Four, Section 'l\wmy of the Nevada Constil.ution
15
16
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;
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tack su.t!kient guidelines andfor the basic dements of fundamental fairness, under tlr
21
Due Process Clause of the Fourteenth /Unendmem to the Un.ited States Constitution
22
23
24
25
P,
26
Plainti!T has ll1ikd to plead any acts or omissions of Dctendam sufficknt to warran
considemtion of t'xemplary. ptmitive or special damages.
27
28
i t ,
;
' .'
.a
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complsined
hereby
o1
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license, payment, relea5e, ws jmlicata, statute of frauds, and other contrac.l ddens\d
!'
10
promist'll, l'hscnce \>f mutual assent, umtwll mistake and!or unilateral mistake vrhereir.
11
t\> perform
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13
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nonoccurrence of condition
15
16
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18
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20
may
21
applicable herein.
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23
24
l
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it
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27
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S.
Defendant alleges that Plaintiff has failed to mitigate their damages, if any.
AFFIRMATIVE DEFENSE
T.
lJ. The alleged covenant not to compete does not apply to independent contractorsJ
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8. II'
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12
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14
l
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X
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I!
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!\
241
filing of Defendant's Answer and thcrd(we, Defendant reserves the right to amend
Answer to <lllege additional .Affinnative Defenses if subst,quent
I
25'
26
I!/ I
2s
Pursuant to FRCP 11, all possible l!filrmative defenses may not have been allege
herein insoH1r as sufJicient facts were not uvai.labk atkr reasonable inquiry upon the
22
27
21
,;
20
23
<ill}
obligations.
'
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il
gl
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COVNTERCLAIM
1
2
COMES NOW, JOHN KAR,\US, Counterc!aimant, by and through his attorney, DONN
W. PROKOPlUS, ESQ. of the law firm, PROKOPJUS & BEASLEY, and as and .tor
4
Counterclaim. against Countenldend>mts PREGAME LLC, a Nevada Limited Liability
INTROJ)VCTION
10
to Countcrclnirmmt under the guise of n<mexlstent stock purchases. Said acts are williill. wanton
11
12
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recdved from th<' Counwrdefendant w\wn Cuunterdaimunt's wife was in critical condition
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28
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26
2.3
24
execute a void covenant not to compete under duress, in exchange for a desperation loan h<.
16
21
22
15
20
the Cmmterclaimant
1j
DONN
W.
1.
That at ltll rimes rdenmt hereto. Counterclaimarn. JOHN KARAUS, was and is,
of Nevada.
4
2.
Do.mes!ic Limited Liability Cumpany, which operates in Las Vegas, Chrrk County J
Nevada.
3.
10
names are discovered, Cour.lt<rclaimant will ask leave to ar.nend this Counterclnhr
11
12
I
I
of said Defemhmts.
13
14
referred.
15
4.
16
17
with PREOArvlE, LLC, occmrcd in and around Las Vegas, Clark County, Nevada-i
18
19
20
2'1
5.
That the Counterclaimant was a fonner independent contractor for PR.EOAivfE, LLC.
6.
Thm. during the course of his tenure with PREGA!v!E, the manager, Ril.,NDALLj
22
23
24
7.
25
27
yet he was never provided shares or anything to rc,prcsent his phamom ownership.
l
I
12
26
28
'
8.
2
3
9.
and its agents, employees, assigns, and mru.mgers, constitutes fraud, theJI by false
pretenses, misrc,presentatlon, conversion, lU1jnst enrichment, and mher torts yet to
nmned.
8
I 0.
!L
12
13
"14
Thm in 20 J2, the Counterdefendant was in desperate and in di.re si.raits, due to hi.
wife's catastrophic i.ll.m,ss, which required hospitalization.
12.
t3.
15
16
17
That the Counterdefenda.nt is liable to the Connterdaima.n.t f(lr actu<>i and punitiv<
Jo
11
That Counterclaimant never received any share of stock, dc$pite having portions o.l
his pay whhhdd fcJr this ostensible purpose, and said condm't of PREGAlvtE LLC.
14.
18
That PREGAME LLC was in a uniqtle and supnior bargaining positi.on, and uniiJiriyj
i'
and inequitably induced the Coumerc!aimam, and independc.nt contractor, to sign
'19
20
21
15.
thl!
22
23
Counterdcfi:mdant PREGAME.
24
25
26
27
28
16.
13
l'
That fb:r reasons indudi.ng fl1ilurc of consideration, duress, and justiJkation,
2
3
The Counterddendanl and others not yet named, in 20 13 and heyond, used the
8
9
20.
11
21.
12
That the Counlenldenda.n1 is Hable to the Cotmterclalma.nt 1:\.>r <Ktual und punitiv<
danwges in
22.
15
1'7
23.
24.
That the tm't of conversion h defined as a distinct act of dominion wrongthlly exc,rtec
'
over another's personal property .in denial of, or inconsistent \\ith his titk or
18
!
therein or in derogation, exclusion, or defiance of such title N rigJus.
19
20
$1
14
'!6
(lf
25.
21
22
the Counkrclaimant.
23
That the Counterdetendam PREGAM.E LLC, and other DOE defendants not ye
24
...Yl,
'
the Court
II
:,
3/
28.
29.
That
receiving party appreciules such benefit, and there is ac.ccptance and retention by th
rect'iving pany of such benefit under circmnstnnccs such that it would be incquitabk
6
fi.1r him 10 rdain the benefit \Vithout payment of the value thel\;nf.
7
30.
That the
PR.EG!\!v1E
retained, Sllid timds obtain..:d through the false representation of stock pun:huses.
10
11
12
JL
14
party that th<: reprcs<:ntation is false. an intention to .induce the other pmiy to act
15
16
17
in taking
'18
19
That PREGA'Iv1E LLC, acting through its manager RANDALL BUSACK. knowingiyj
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21
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22
34.
23
24
35.
25
26
of intl.!ntional 111Jsreprest!ntHtion.
l
i
27!
l
That Counter-defendant (lid not issue stock to Cmmterc!aimant, and knew at the tim<
of the misappropriation of Counterdairmmt's fhnds, that there would be no stock!
issued to Counterdaimant
28
15
36.
That C\mntc-rclaimant is entitled to actual and punitive damages from PREGAME and
other nOf ye\ named DOE and ROE defendants well in excess of $.!0,0{)0, ii.1r whic
:l!L
39_
That Nevada does .not !\'Cognize the validity of covenants not to compete xor
i
l
inde11e.ndent contractm'.
9
40.
10
37.
6
7
Thm a party has been ''\vrongflllly eTDoined," fbr porpows of provision of Federa
1'!
12
ultimately found tlutt enjoined party had at al.lti.mes right to do enjoined act
13
4l.
14
'15
16
17
18
19
20
21
!
!
41
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Tlwr in enacting
!;JJ<,!:l.....9.tL2Q.Q,
24
///
26
28
23
27
or con1pany
22
25
vocation .in comp.ctition vvith or bt,comiml. cmjJinved bv u com]Jetitor o.f t11e personJ
/f/
I
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2!
I
3!
sinxu!t<meously with the ndvance, which was .in reality payments of moni<'s already
due to the Countcrdaimant, \Vas a wrongful act, whid1 is Stlnldently coercive lc
5
to tile p<o'TVCtmtor's pressure.
7
44.
That lilr all of the above reasons, the covenant not to compdc is void an
uncnf(lrceab!e.
10
45.
11
'-16.
47.
12
i3
14
Umkr NRS 30.010 through 30.16\l, thb Court b<ts the jurisdiction and power
an
controvers)'
:: I
as to 1ht: ParlieR
17 1
t\trther, harm is likdy to occur in the future absent r.his Court's adjudication.
18
48.
That
20
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21
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22
24
25
26
au
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t:Olt)pete
27
to cornpett:'- b
28
17
As.sL>c.
11
'12
49,
Counterdaimant rqwats and re<llleges the prior paragraphs a<> ift\!!.ly set out therein.
50.
13
16
SL
17
plus
interest.
PRAYER
21
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25 !:!I"
28
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20
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19
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That this "appropriation rort" seeks to protect individ<m!'s personal interest .in privac;1
as measured in terms of mental anguish from appropriation,
'18
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<.t>
iUld
'15
24
unwanted
14
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10
22
v: Sk.:v Ranch
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20
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26
27
28
premises;
:\
BY:
.
PR\JR<1PlUS'&;tlEi\SVEY
"'
. . . . . . -.
JOHN KARALJS
i
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17
14
16
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and
II
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th1
Electronically Filed
09/16/201411:13:59AM
1
2
3
4
5
6
7
DISTRICT COURT
PREGAME LLC,
10
11
vs.
12
JOHN KARALIS,
>(
Plaintiff,
13
Defendant.
14
111&1
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15
16
17
PRELIMINARY INJUNCTION
COMES NOW, The Court, having reviewed Plaintiffs Motion for Preliminary Injunction
and, good cause appearing, hereby issues its Preliminary Injunction as follows:
18
19
FINDINGS OF FACT
1.
Plaintiff
operates
website
residing
on
the
world
wide
web
at
20
21
provides sports related content of interest to sports fans and sports bettors.
22
content is provided free of charge to viewers of the website and other content, designated
23
24
25
26
27
28
2.
Premium content
Plaintiff obtains the
On or about June 18, 2012 Pregame LLC entered into a Content Services
Agreement ("the Agreement") with Defendant Karalis, and in or around 2009 Pregame LLC
'
1
2
3
4
5
6
7
8
9
10
11
12
"
<(
>
1- w
1- z
l&J
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l&J "
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z
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
entered into a Social Network Addendum ("the Addendum") with Defendant Karalis.
3.
By its express terms the Agreement was to continue for a period of 5 years,
terminating in June 2017. (Exhibit "1", Paragraph 9) The Agreement followed a previous similar
contract between the parties which was replaced by the Agreement. The parties have operated
under the current and previous contracts for a period of several years without incident.
4.
license to "publish, display, reformat and distribute" all sports related content generated by
Defendant Karalis, as well as the right to bundle such content with that of other providers.
5.
The Agreement further provides that Karalis may not publicly disclose information
related to his relationship with Pregame LLC, that Karalis will not undertake any conflicting
obligations, and that Karalis will not attempt to induce employees or customers of Plaintiff to
leave Pregame LLC or pregame.com. The Agreement further restricts Karalis' use of the Nom
De Gambling "Vegas Runner."
6.
holder of any Social Site accounts, including Twitter handles, utilized by Defendant Karalis in
connection with the production of content. Karalis was further obligated to provide the current
usemame and password for all such accounts to Plaintiff and was prohibited from changing said
passwords without Plaintiffs prior written consent.
referencing any third party competitor to pregame.com without prior written consent of the
Plaintiff. The Addendum included a liquidated damages clause specifying damages for each and
every violation of the provisions outlined above.
7.
That on or about June 18, 2014 Defendant Karalis attempted to "resign" from his
B.
The nature of the damage to Pregame LLC is irreparable inasmuch as the content
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which Karalis is obligated to provide to Pregame LLC for distribution is being provided to a
competitor.
"undistributed" and the value of that content is lost to Pregame LLC forever.
10.
results in irreparable harm as such information, confidential and otherwise, cannot be retrieved
once made public by Karalis.
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CONCLUSIONS OF LAW
Article 6, section 6 of the Nevada Constitution specifically grants the district courts
power to issue writs of injunction. The basis for granting injunctive relief is equity. Sherman v.
Clark, 4 Nev. 138 (1868).
discretion. Coronet Homes, Inc. v. My/an, 84 Nev. 435, 437, 442 P.2d 901, 902 (1968), and
Thom v. Sweeney, 12 Nev. 251 (1877) .
2.
NRCP 65 (2004).
The
purpose of a temporary restraining order is to prevent irreparable harm until the parties can be
heard on a motion for preliminary injunction. A preliminary injunction is designed to continue to
protect the applicant from irreparable injury and preserve or restore the status quo pending final
judgment. Ottenheimber v. Real Estate Division, 91 Nev. 338, 342, 535 P.2d 1284, 1285 (1975)
and Memory Gardens of Las Vegas, Inc. v. Pet Ponderosa Memorial Gardens, Inc., 88 Nev. 1, 4
492, P.2d 123, 124 (1977).
3.
NRCP 65 and NRS 33.010 authorize the Court to grant injunctive relief when the
commission or continuance of an act produces great or irreparable injury to the plaintiff. NRS
33.010 provides:
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continuance of some act, during the litigation, would produce great or irreparable
injury to the plaintiff.
3. When it shall appear, during the litigation, that the defendant is doing or
threatens, or is about to do, or is procuring or suffering to be done, some act in
violation of the plaintiff's rights respecting the subject of the action, and tending
to render the judgment ineffectual.
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3
4
4.
relief, courts traditionally consider the following equitable criteria: (a} the threat of irreparable
injury; (b) the plaintiff's likelihood of success on the merits; (c) the relative interests of the parties,
or the balance of hardships on each party; and (d) the interests of the public. See, e.g. Miller v.
Cal. Pac. Medical Center., 19 F.3d 449, 456 (fil' Cir. 1994) citing U.S. v. Odessa Union
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Breach of Contract
5.
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Basic contract principles require the following in order to establish the existence of
13
an enforceable contract: Offer, acceptance, meeting of the minds and consideration. May v.
14
Anderson, 121 Nev. 668,672, 119 P.3d. 1254 (2005), citing Keddie v. Beneficia/Insurance, Inc.,
>
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Although no precise burden of proof must be met by the party seeking injunctive
Generally speaking, when a contract is clear on its face, it ''will be construed from
17
the written language and enforced as written." Cantore v. Coast Hotels & Casinos, Inc., 121
18
Nev. 771, 776 121 P.3d 599, 603 (2005). The court has no authority to alter the terms of an
19
unambiguous contract. !d., citing Renshaw v. Renshaw, 96 Nev. 541, 543,611 P.2d 1070, 1071
20
(1980).
ld
6.
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7.
A breacih of contract occurs where a party does not perform a duty arising under
22
the agreement, and such failure is material. See Calloway v. City of Reno, 116 Nev. 250, 256,
23
993 P.2d 1259, 1263 (2000) (reversed on other grounds), Olson v. Richard, 120 Nev. 240,89
24
P.3d 31 (2004}.
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Accordingly, based upon the foregoing Findings of Fact and Conclusions of law,
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reasonable probability of success on the merits of its claim for breach of contract and if
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Defendant Karalis conduct is allowed to continue, such conduct will cause irreparable harm to
PREGAME LLC for which mere compensatory damages is an inadequate remedy, pursuant to
NRS 33.010.
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w
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Ill a
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is prohibited from utilizing in any way the Twitter handle "@VegasRunner'' and the Nom de
Gambling "Vegas Runner'' or any derivative form thereof, until further Order of the Court.
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the court.
Ill
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account. All associated account information, including but not limited to, the current operational
password, shall be provided to counsel for Pregame LLC within 24 hours of service of this order
upon counsel for Defendant Karalis.
SO ORDERED this
(>
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day of
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Submitted by:
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JEFFREY .
LLI
Nevada Ba N . 00
8
3301 N. B
o Drive, Suite 195
Las Vegas, evade 89129
(702) 839-1100
Telephone:
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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ami@)
Electronically Filed
09119/2014 11:43:28 AM
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...
DISTRICT COURT
CLARK COUNTY, NEVADA
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PREGAME LLC,
Plaintiff,
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DATE OF HEARING:
TIME OF HEARING:
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vs.
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JOHN KARALIS,
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Defendant.
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. . . . , _ _,_ _ _..J....__ _ _ _ _ _ _ _ __
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1.
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2.
3.
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4.
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For such other and further relief as the Cou11 deems just and equitable.
This motion is made and based upon all the papers and pleadings on file herein and th
affidavit included herewith and is made in good faith and not to delay justice.
4
DATED this
\erA;,.-day of
!
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5;'//( , 2014.
i
rn"I<r
BY:
, ESQ.
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NOTICE OF MOTION
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TO:
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YOU, AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the undersigne
will bring the above and foregoing Motion on for hearing in the above-entitled Court on th
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30
dayof _ _
day, in Department IV
111'"'
, /,
)t[l(:_._ _ , 2014.
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BY:
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providing sports content and information to the general public, which tlses this infmmation fo1
.......... 6.
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engagcdi_ __ _
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entered into a "Social Network Addendum". Copies of these documents are attached hereto a.
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Pursuant to the Content Services Agreement JOHN provides certain sports related
infom1a!ion to PREGAME along with an exclusive license that allows PREGAME to "publish
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"information and belief' that JOHN did so because he received an offer fi'om one o
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PREGAME'S competitors.
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information and belief indicates that PREGAME has no evidence whatsoever to suppott th
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claim.
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PREGAME ever challenged the validity of JOHN's cancellation of the Content Service
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Agreement. Nevertheless, PREGAME commenced this action with the filing of a Complaint o
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PREGAME has not identified the competitor who supposedly made the offer. Nor ha
July 10, 2014, in which PREGAME alleged three causes of action, (I) breach of contract; (2
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breach of implied .=nant of good faith and fair dealing; and (3) attomey's fees. Nowhere h
PREGAME filed its, "Plaintiff's Motion For Temporary Restraining Order And Preliminar
Injunction".
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However, PREGAME's counsel apparently obtained an order shortening time which moved th
did not serve him with the motion or the iwdershortening time.
29, 2014 hearing JOHN had not even been served with PREGAME's Summons and Complaint
Consequently, JOHN was unaware that PREGAME had even commenced a lawsuit against him
10
II
Not surprisingly, JOHN did not appear at the July 29, 2014 hearing. The minutes from the Jul)
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29, 2014 hearing indicate that PREGAME's counsel Mr. Galliher told the Court that JOHN wa
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out of the jurisdiction and he was unable to effect proper service. Mr. Galliher offered no detail
14
as to what efforts he made to serve JOHN. Despite these procedural circumstances, which clear!
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did not give this Court personal jurisdiction over JOl-IN, a Temporary Restraining Order (TRO
was issued and signed by the Court on August l, 2014 and entered on August 4, 2014. The TR
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restricted all of JOHN's business activities until August 16,2014- effectively putting JOHN ou
19
of business. The minutes from the hearing also indicate that Mr. Galliher was ordered to re-fil
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and re-notice PREGAME'S motion. A review of the Court record indicates that Mr. Gallihe
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The Court set the matter for a s!Dtus check on August 12, 2014. For reasons that ar
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unclear, no hearing was actually held on August 12,2014. Nevet1heless, on August 14,2014 th
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Court signed an Order extending the Temporary Restraining Order to August 29, 2014. Thi
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August 16, 20 !4, after PREGAME obtain1:d the extension of the TRO, that JOHN was final!
served with the Summons, Complaint and the Temporary Restraining Order (see affidavit o
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Temporary Restraining Order was personally served on JOHN. The extension issued on Augus
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a hearing date: However, on AUj,'llst 28, 2014 the Court signectyetru1other order extending th
TRO and a setting a hearing date on PREGAME'S motion for a preliminary injunction.
ThL
second extension also did nothing more than reiterate the same prohibitions contained in th
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original TRO. This second extension extended the TRO to September 11, 2014 at which tim
there would also be a hearing on PREGAME'S motion for preliminary injunction.
JOHN retained his current attorney, Mr. Donn W. Prokopius, Esq. on or about Auj,'llSt 19
2014. Mr. Prokopius appeared at the August 28, 2014 hearing. Neither Mr. Galliher nor hi.
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client made an appearance. Substitute Judge Charles Thompson presided over the hearing. N
actual substantive proceedings occuned at the hearing. Instead, Judge Thompson informed Mr
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Prokopius that the TRO was extended to September 23, 2014 when there would be a hearing o
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2014 was in violation ofNRCP 65(b), which limits such extensions to no more than 15 days. B
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the time of the hearing Judge Thompson had already sij,'lled the second extension of the TRO
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informed that the second extension of the TRO contained a hearing date of September 11, 2014.
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Moreover, Mr. Galliher had failed to rc-file and re-notice PREGAME'S original motion for
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temporary restraining order and preliminary injunction and no proper notice of the September 11
2014 hearing was ever provided to Mr. Prokopius as required by E.D.C.R. 2.20. 1 A hearing di
occur on September !1, 2014. Mr. Prokopius was unaware of the hearing and made n
entered on September 16, 2014. Mr. Prokopius discovered what had occurred when he wa
-----6 .
on Se]Jt(l.l!_l_\)er
. -n: ARGUMENT
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I.
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(a) No motion once heard and disposed of may be renewed in the same cause, nor ma
the same matters therein embraced be reheard, unless by leave of the Court granted upon motiot
therefor, after notice of such motion to the adverse patties.
(b) A party seeking reconsideration of a ruling of the Court, other than an order whic
may be addressed by motion pursuant to NRCP SO(b), 52(b), 59 or 60, must file a motion of sue
relief within I 0 days after service of written notice of the order or judgment unless the time i
shortened or enlarged by order. A motion for rehearing or reconsideration must be served
noticed, filed and heard as is any other motion. A motion for rehearing does not toll the 30 da
period tor tiling a notice of appeal from a final order or judgment.
is granted, the Court may make a final disposition of th
(c) If a motion for
cause without re-argument or may restore it to the calendar for re-argument or resubmission o
may make such other orders as are deemed appropriate under the circumstances of the particulru
case. (Amended 12-5-86, eff. 2-3-87)
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The case of Masonry and Tile Contractors v. Jolley, Urga & Wirth, 113 Nev. 737, 941
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P.2d 487 (I 997) sets forth the standard to be applied by the district Court in assessing a reques
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to reconsider. In Masonry and Tile the Nevada Supreme Court held that a district Court ma)
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Rule 2.20. Motions; contents; responses and replies; calentlaring tt fully briefed matter.
(a) All motions must contain n notice of motion setting 1he same for hearing on a day when the judge to whoJ
!he case is ftSsigned is hearing civil motions and not less than 21 days from the date the motion is served and filed.
party filing a motion must also serve and tile with it a memorandum of points and authorities in support ef eac
ground thereof. The absence of such memorandum may be construed as an admission that the motion is no
meritorious, as cause fi>r its denial or as a- waiver of all grounds not so supported.
Following the hearing of September 11, 2014 U1e Preliminary Injunction was sent vi
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email to Mr. Prokopius on September 16, 2014 at 4:53 p.m. JOHN's motion to rehear/reconside
5.
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Due process requires that a pmty be given notice and an opportunity to be heard.
v. 11te Eighth Judicial Districl, 206 P.3d 975 (2009 Nev); Ogawa v. Ogawa, 221 P.3d 699 (200
Nev). (See also Abell v. Second Judicial Disr. Court, 58 Nev. 89, 71 P.2d 111 (1937) holdin
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that proper notice of an application to modify a decree of divorce as to the custody of a minm
child should be given to the adverse party, whether required by statute or not).
JOHN was never personally served with PREGAME'S Summons and Complaint prior t
the initial hearing in this case tl1at occurred on July 29, 2014. Despite this Court's clear lack of
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personal jurisdiction over JOHN, a temporary restraining order was issued. JOHN was neve
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given notice of fue hearing and an opportunity to be heard. Consequently, his fundamental righ
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jurisdiction to grant PREGAME the relief sought in its motion. Simpson v. Odonnell, 98 Nev.
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follows:
"Before adjudicating the incidences of the parties' marriage, however, the district Court i
required to obtain in personam jurisdiction over both Mr. and Mrs. Simpson. Vanderbil
v. Vanderbilt, 354 U.S. 416 (1957); Estin, supra; Farnham v. Farnham, 80 Nev. 180,391
P.2d 26 (1964); Summers v. Summers, 69 Nev. 83, 241 P.2d 1097 (1952). The distric
Comi did not have personal jurisdiction over Mrs. Simpson since she is a domiciliary o
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Georgia and she did not appear in the divorce proceeding below. Thus, it could no
adjudicate Mrs. Simpson's rights to child custody, child support, and alimony. (ld, 9
Nev. at 5 I 6, 654 P .2d at 1020, emphasis added).
Obviously, if JOHN had been given proper notice of the hearing he would have filed at
Answer to PREGAME'S complaint and an opposition to PREGAME's motion and would hav
app_carc_c!_at_th<;_J_u].)'_29,
the Court explaining tharneaid not violate the terms of the agreement betweetnhe parties. Such
infonnation would certainly be substantially different evidence. If the Court had been aware o
JOliN
jnforn1ation t
these circumstances JOHN believes PREGAME would never have been granted a TRO or
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temporary injunction. In addition, JOHN would have pointed out the failure of PREGAME'
12
counsel to comply with the requirements of NRCP 65(b) and (d) (discussed below). JOHN i
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therefore requesting that the Court rehear/reconsider and vacate the temporary injunction issue
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The tempomry injunction entered on September 16, 2014. Prior to its issuance an initia
TRO was issued on July 29, 2014 and remained in effect until August 14, 2014. TI1e TRO wa
then extended to August 29, 2014 and then extended again to September 11, 2014.
September 11, 2014 hearing the TRO was replaced with a temporary injunction. JOIIN ha.
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At th
brought his-met-ienwithin the 6 month time period provided in NRBP 60(b).fer-eaeh and ever
one of these orders. The case of J.eslie vs. Leslie, 941 P.2 451 (Nev. 1997), provides that whe
the Court assesses a Rule 60(b) motion, the Court must analyze the request in light of th
10
following factors: whether the movant (1) promptly applied to remove the judgment; (2) lackc
l1
intent to delay the proceedings; (3) demonstrated good faith; (4) lacked knowledge of procedura
12
requirements; and (5) tendered a meritorious defense.
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eliminated the requirement U1a! a movant tender a meritorious defense. Epstein v. 15psleilt, 113
Nev. 1401, 950 P.2d 771 (1997).
llere, JOHN filed his motion within a matter of days of the entry of the tempora
injunction and a matter of weeks since the issuance of the initial TRO on July 29, 2014 and it
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subsequent extensions. Neither JOHN nor his lawyer was ever given proper notice of any ofth
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proceedings. In fact, he acted promptly to rectify this situation when he discovered what ha
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occurred. JOHN is acting in good faith because he clearly has legitimate issues to be raised tha
23
have never been fairly addressed. At the very least, he has the right to present his evidence an
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make his arguments to the Court before the Court issues an order that effectively puts JOHN ou
of business and prevents him from eaming a livelihood.
JOHN is not sophisticated in legal matters. Up to now he has not been represented b
counsel. He has no legal training and although he would undoubtedly have known enough t
seek legal counsel there was little that he could not do when he was never given notice of any o
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3
these hearings.
mistake an excusable neglect as contemplated by NRCI'60(b) and thereby justify setting asid
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the temporary restraining order, the subsequent extensions and the temporary injunction.
... ...IQHN
7 temporary injunction as well because none of these orders comport with"NRCI' 65.
8
The initial Temporary Restraining Order was issued and then extended unde
circumstances where no proper notice or an opportunity to be heard was ever given to JOHN.
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Indeed, when the initial TRO was issued on July 29, 2014 JOHN had not even been served wit
12
the Complaint.
13
jurisdiction over JOHN. It is hard to imagine that a TRO would be issued that restricts a JOHN'.
14
ThtlS, as previously discussed, this Court had not yet acquired persona
fundamental right to earn a living when the Comt had not even acquired personal jurisdictio
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only be issued under certain limited circumstances specified in the rule. Specifically, NRC
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65(b) govems the issuance of an ex parte a temporary restraining order. It reads as follows:
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HJ
notice, the motion for a preliminary injunction shall be set down for hearing at the earlics
possible time and takes precedence of all matters except older matters of the same character; an
2 when the motion comes on for hearing the party who obtained the temporary restraining orde
3 shall proceed with the application for a preliminary injunction and, if the party does not do so
the Comt shall dissolve the temporary restraining order. On 2 days' notice to the party wh
4 obtained the temporary restraining order without notice or on such shorter notice to that party a
the Court may prescribe, the adverse party may appear and move its dissolution or modificatio
5 and in that event the Court shall proceed to hear and detem1ine such motion as expeditiously a
.. --6.- the
require, .....
1
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There arc:;-twcnequirements that .must be met for the Court to issue all ex parte temporar
restraining order. The Court can only do so when
shown by affidavit or by the verified complaint that immediate and ineparab!c injury, Joss, o
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damage will result to the applicant before the adverse pmty or that patty's attomey can be hear
12
in opposition, and (2) the applicant's attorney certifies to the Court in writing the efforts, if any
13
which have been made to give the notice and the reasons supporting the claim that notice shoul
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not be required.
Neither of these two requirements was satisfied before the Couti issued the initial TR
on July 29, 2014, or, the two subsequent extensions. PREGAME's motion for a TRO w
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accompanied by a supporting affidavit by someone calling himself "RJ Bell". "RJ Bell" is a
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alias- a fact admitted in paragraph 2 of RJ Bell's affidavit in which he states that he uses th
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name RJ Bell "professionally"- whatever that is supposed to mean. RJ Bell's true identity i
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otherwise unknown and therefore it is unknown whether the person purporting to be RJ Bell wh
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straw man. Moreover, in paragraph 9 of his affidavit "RJ Bell" alleges that after JOH
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terminated the Contract Services Agreement he (JOHN) " ... has engaged in conduct in direc
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violation of his obligations and PREGAME, LLC'S rights under the agreement.
Thes
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violations have been ongoiltg and contirumus and if caused substantial damage to PREGAME ...
LLC".
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RJ Bell's allegations are not actual evidence. They are nothing more than concluso1
statements that are insufficient to support a request for a temporary restraining order or
preliminary injunction. Nowhere in his affidavit does RJ Bell describe actual specific instance
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of conduct that JOHN is alleged to have engaged in that would constitute a violation of th
PREGAME's complaint is similarly devoid of any specific factual allegations. Without specifi
facts PREGAME cannot show that it has suffered immediate and irreparable injury, Joss,
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damage will resull to it before JOHN can be heard in opposition to PREGAME'S ex part
12
request for a TRO. In addition, PREGAME's lawyer failed to certify to the Court in writing th
13
efforts, if any, he made to give JOHN prior notice or the reasons why notice should not b
14
required. In fact, circumstances clearly indicate that PREGAME and its lawyer were actual!
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playing games with the TRO process by deliberately withholding notice from JOHN that
lawsuit had been commenced until after an ex parte TRO had been issued. PREGAME and it
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lawyer certainly knew where JOHN lived. Yet, they made no effort to immediately serve JOH
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with the Summons and Complaint. At the July 29, 2014 hearing PREGAME'S lawyer, Mr.
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Golliher told the Court that JOHN out to the jurisdiction. After the TRO had been issued on Jul)
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29, 2014 PREGAME still made no effort to serve the JOHN. It was only when the TRO w
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extended on August 14, 2014 that PREGAME'S lawyer needed only two days to personally
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serve JOHN at his home with the Summons, the Complaint and the TRO.
25
Complaint was filed on July 7, 2014. It is inconceivable that PREGAME'S lawyer could no
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PREGAME'
The TRO that was issued on July 29, 2014 is similarly defective. NRCP 65(d) sets fort
NRCO (d) Fonn and scope of injunction or restraining order. Every order granting aJ
injunction and every restraining order shall set forth the reasons for its issuance; shall be specifi
in tenus; shall describe in reasonable detail, and not by reference to the complaint or othe
5 document, the act or acts sought to be restrained; and is binding only upon the parties to th
------6- . _a<;ti()n, their oflicer_s,
_and atl_o!11eys,
active concert or participation with them who-r-eeeive actual-notice of the order by personal
7 setvice or otherwise.
4
The TRO that was issued on August 1, 2014 the two subsequent extensions and th
temporary injunction arc all deficient because they failed to describe in reasonable detail th
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order or preliminary injunction issued hy a trial Court is void, not merely voidable, unless th
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Court issuing the same sets forth in the order the reasons for its issuance, is specific in its tenn.
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and describes in reasonable detail, not by reference to the complaint or other documents, the ac
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(1968 Nev). None of these four separate documents contain any specific facts that justify th
issuance of the TRO or a temporary injunction.
For these reasons, JOHN is respectfully requesting that the tempormy injunction be sc
aside and that the Court set the matter for an evidentiary hearing.
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2. ATTORNEY'S FEES
NRS 18.010 provides as follows:
2.
In addition to the cases where an allowance is authorized by specific statute, th
Com1 may make an allowance of attorney's fees to a prevailing party:
When he has not recovered more than $20,000.00; or
(a)
(b)
Without regard to the recovery sought, when the Court finds that the claim
counterclaim, cross-claim or third party complaint or defense of the opposing party was brough
without reasonable ground or to harass the prevailing party.
under a statute or rule and that in exercising its discretion, the district Cout1 must evaluate th
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factors set forth in Brunze/l v. Golden Gate National Bank, 85 Nev. 345, 455 P .2d 31 (1969)
including the qualities of the advocate, the character and difficulty of the work performed, th
work actually performed by the attorney, and the result obtained. In this case, JOHN'S counsc
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7 ctiVtJtce actions. The legal represelltll1ion in this caseinvolvcd the collection and analysis ofth
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JOHN'S
JOHN is therefor
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WHEREFORE, JOHN is requesting that he have the relief sought the foregoing motion.
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DATED this
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W'' day of
(ef(
' 2014.
S, ESQ.
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-.-___-___-__-__ -
6- .. STATE OF NEVADA- -7
COUNTY OF CLARK
------)-----------=--=-)
)
ss.
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2.
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motion, including the points and autholities and any exhibits attached hereto and th
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same are true and correct to the best of my knowledge and belie[
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3.
For these reasons, I am requesting that the Court grant me the relief sought in m
motion.
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My
JOOlSOUSA.
NOTARY PUi:1UQ
STAnO OF Nl:."VAD.\
I:><Pi'e<ll to.-11
No;0010o!.1\3-1
EXHIBIT "1"
-----
EXHIBIT "1"
.......
.. . ----
RediJlls
A. Whereas, Content Provider provides certai.D CODietll regarding upcoming and past
SJ>(lrUng events and sports relmed information (collectively,
lN CONSIDERATION OF lhe mutters d=ibed above and of the mutual benefits and
obligatiODS set forth iD this Agreement, the parties to this Agreement agree as foUows:
-::Jf..
----------------
included in such discotmted offerings over lhe row-se of any calendar moolb
wilhoUI the express consent of the Content Provider.
(20)
after this Agreement is tennina!Od Content Provider will certify in
writing to Pregame that Conll:nl Provider has complied with lhese obligations.
16. No Conflicting ObEirunions. During lhe tem1 of this Agreement and for a
period of two (2) years after tennination or eKpilation, eKcept as may be
expressly pennined on exhibit A. Content Provider will noL. dirtttl)' or
indirec:tly, (i) be involed with a business wbicb is in competition wilb
.... -- ---. ----Cflioyed. Nlcr-.heti:imlnl!liolfoflhis Agreement, Content Provider is - - - ------. prohibited from coutactinG- anempting to contaCt, solicit ;my customer, buyer
or person or providing any content to whom Content Provider bad <:ontact
with wbile fulfilling its obligations under this Agreemenl
17. Thjrd Partv Placement. Unless otherwise Sl81ed on slaled on F.-"lnPit A, if
Pregame places Conlent wilh web shes or other disuibution mecbauisms
operated by one or more third panies (each a Third Party Siten), Conle!ll
Provider agrees to waive Content Provider's relationship indefinitely wi!h
such Thin! Party Site, so that Content Provider agrees to never contac1, solicit.
accept employment, offer services under any Wllllled name with tha1 Thin!
Party Site bmh during and after lhc expiration of this Agrec:mcnt.
18. NonSolicitation. Any ancmpt on the part of Content P1mider to induce BD
employee or custOIIler to leuve Pregame, or any effon by Carueol Provider to
interfere ,.;th any relationship with Pregame employees or olber content
provid= would be: harmful and damaging to the Pregame. Therefore,
Conteutl'rovider agn:.::s !lwt during lb.: t.:nu of this Agn:.:m""t and lifter
tenninalion of Ibis Agreement, Content Provider will not in illlY way directly
or
addition 10 any other damages or awurd, all n:asonable legal costs and fees
associated with the action.
27. Ent.ire AgmlmooL Ibis Agreement repn:scn!S the entire understanding and
agreement between Content Provider ano Pregame as IO the subjed matter
hereof. This Agreement supersedes any other agreements and understandings
between Content Providt:r and Pregame with rt:SJ>'Cl to any Conlelll or other
services. There are no other promises, represenlaticns, undetStalldings or
inducements other lbac those specifically sel forth in this AgreemenL
I
1
.....
29. Headings. Headings are inserted for the comveniena: oflhe paniesonly and
are not to be coosidered when interpreting this
30. Interpretation. Won!s in the singular mean and include the plural and vice
versa. Words in the masculine mean and include !be feminioe aod vice versa.
The phrase
shall mean "including without limilBtion.31. Survival. The provisions ofSecli(ltlS 13, 14, 15, 18, 19, 20, 21, 28 and
32. Governing Law. This Agreement md the performance Wider this Agreement,
and all suiiS and special proceedings Wldt:r this Agreement, be COIISirued in
with and governed by the laws of the State ofNevlltia, without
reference 10 iiS choice oflaw provisions. All actions and proceedings
pertaining to this Agreement "iU be filed and litigated exclusively in any suue
court or fedOTal court localed in Clark County, Nevada. Pregame and Content
Provider expressly oon.o;ent to the juri:;diction of these cowts, agree that venue
is proper in these courts and company and you consent 10 servioo of process
made Bl your last knoY.1> address in companies records.
33. SeveraJ!ilit.. In the event that any of the provisions of this Agreement are
held to be invalid or um:nforccable in whole or ill part. all other provisions
will oevertheless continue to be valid and enforceable with the invalid or
unenforceable pans severed from the remainder of this Agreement.
34. Waiver. The waiver by either pany ofa breach. defBUit, delay or omi$Slon of
any of the provisions of this ASJ=Deol by the other pany \\iU no\ be
coostrued as a waiver of any subsequent breach of the same or other
pro\isiollS.
35. Bloscing ContenL In tbe event ConiCIIt Pro\ider pro\ides any content to blog
sites, bulletin boards ur other colll!Duni..Woo fonuns hosted by
Content Provider agrees to be bound by and strictly comply wilh the Terms of
Use located a1 W\\W.Pfl'lli'IDe.c:mn/tenns-ofservice
------------------------------------I
...... _
------------ .....
.......
IN WITNESS
A@reemenlas of tile....
dates set forth below intending thilllhiSA.jlJeemenrbe effectiVe as oflhe Effective Date.
6-l!HZ
State of
t'\IJ .Wrf,Ci
Cow11yof
(ll(.t\' IL-
I CZ2
n.L,
day of
zo
me a n:!! public. the
officer, petSOnally appeared
k(4 111
knC>WD to me
(or satisfactorily proven) to be the person whose name is subscribed to 1he within
instrumeot. and acknowledged tbal he c:xeculed lhe same for the purposes therein
<Ontained.
On this. the
d0'fin
E:o.bibit A
"Baseline Yd!( means the c;Wt:ndar year in whiclllbe l.ilfectivc L>Hte occurs.
'"Cost of
-Gross Revepu.es" means sums acrually rcccived from the resale of all fee
based content to end usen; (wbo:tlu:r through Prcgwne or a Thin! Pany Site).
'i:"rrowth
means the result of dividing the Ne1 Revenues for lhe prior
calendar year by lhe Net Revenues for the Baseline Year. for avoidanc:>.: of
calt::Ddar year.
"Commissi011 Rate" means 33%.
Net Revenues from bundled content shall be divided pro-rata among the
contributors.
Compensation CalpdH'ion
1. (Net RC\'CnliOS from Content} X (the Commission
Gross Commissions
gn:ater
If Conu:ot packaf,'t:S an: sold in which the premised delivery of the O:lntent
elCiends beyond the calendar m<>nth of pwchase. the ac:oollllling of net revenue
with the acrual deUvcry of the Content (i.e. the percentage oftbe
Exhibit A--COI1lont Scmces
Section 16: No1Withstanding the provisions of the firs1 sentence of Section 16, Content
Provider may provide the Content to competiton; of Pregame after me term of this
Agreement
Section I 9: Pregame shall not make any further use of tbe Nom De Gambling upon
termination of lhis Agreement and. effective upon sucb termination, assigns 10 Content
Provider all right, title and interest in and to the Nom De Gambling.
EXHIBIT "2"
"
--- .. .
. . . ..
EXHIBIT "2"
..
----
--------
1, 2009 (the Effective Date") and Is made by and between Pregame, LLC a
Nevada 6mited liability company ("Pregame") and the undersigned service
provider ("Content Provide().
A.
Whereas, Pregame and Content Provider
into a Conlent Services Agreement with an effective date of I 0 / R /:Jcq7
(the "Agreement") pursuant to which Conlent Provider provides to Pregame
certain content regarding upcoming and past sporting events and sports related
information (collectively, the "Content1.
B.
Whereas, Content Provider desires to establish and maintain an
account on one or more social networking siles such as Twitter. Facebook and
MySpace (collectively, the "Social Sites") on which Content Provider will Promote
the Content.
C.
Whereas, the parties desire to establish certain understandings as
to Content Provider's use of Social Sites as set forth in this Agreement.
IN CONSIDERATION OF the matters described above and of the mutual
benefits and obragations set forth in this Addendum, the parties agree as follows:
1.
Defined Tenns and Recitals. Capitalized terms not defined herein
shall have the meaning given to them in the Agreement. The above-referenced
Recitals are hereby incorporated In this Amendment by this reference. Except as
modified by this Amendmenl the Agreement is hereby ratified and remains in full
force and effect.
2.
Pregame Netwol1<. Pregame operates a website at
www.eregame.com (the "Website"} to which Content Provider provides the
Content As one of its features, the
provides marl<eting and networl<ing
functionality (the "Pregame Networ1<").
3.
promotion on the Pregame Networls. Content Provider may
promote its presence on Social Sites through the Pregame Network if and only if
all of the following are true: (1) Pregame is the registered account holder of the
appficable Social She account (each an "Ac<;ount"); (ii) Content Provider has
derrvered the current user name and password for the Account to Pregame and
does not change these Hems without Pregame's prior written consent
(iii) Content provider shall not reference any third party (eg a competitor
petmission of Pregame;
Pregame.com) through the Account without prior
and (lv) Pregame may modify the look and feel (but not the content) of the Social
Pages associated with the Accounl including placement a "Sponsored by
SaVK'f...-.
Pregame or other logo. Content Provider covenants and agrees to maintain the
accuracy of each slatementln this Section for the duration of the Agreement.
4.
Liquidated Damages. IN THE EVENT CONTENT PROVIDER
lJTlUZES 1t1E ACCOUNT IN VIOLATION OF SECTION THEN CONTENT
PROVIDER AGREES THAT PREGAME WILL BE DAMAGED IN AN AMOUNT
WHICH IS NOT REAOIL Y ASCERTAINABLE, DUE TO THE SPECIAL NATURE
1 - - - - OF THE TRANSACTIONSCONTEMP..t.A:r.so.BY-:r.HIS AGREEMENT-AND ....
.. WOULD BE EXTREMELY DIFFICULT ANDlMPRACTICABLETOASCERTAIN.
FURTHER, CONTENTPR'OVIDER WISHES TO HAVE A LIMITATION PLACED.
UPON ITS POTENTIAL LIABILITY TO PREGAME IN THE EVENT OF SUCH A
BREACH. THEREFORE, CONTENT PROVIDER AND PREGAME HEREBY
AGREE THAT CONTENT PROVIDER SHAll PAY THE SUM OF $50.00 PER
MARKETING MESSAGE TO ACCOUNT FOLLOWER (E.G., 1,000
FOLLOWERS- ONE MESSAGE- $50,000) IN VIOLATION OF SECTION.
PREGAME AND CONTENT PROVIDER HEREBY EXPRESSLY AGREE THAT
SUCH PAYMENT BY CONTENT PROVIDER IS REASONABLE AND IT
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PREGAME AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY.
CONTENT PROVIDER AND PREGAME ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Content Provider Initials: _.c...,___
Pregame Initials:
5.
Content Control. Content Provider shall be responsible for all
content posted or otherwise transmitted through the Account. Content Provider
shaD indemnify, defend and hold harmless Pregame from and against any and all
dalms Oncluding all Habilltles, rosts. expenses (such as attorney fees),
obfigatiolls and damages) in any way arising from or related to the Account
6.
Effect of Termination. Content Provider's ability to access and use
of all Accounts pursuant to Section of this Addendum shall automatically
terminate upon tenmlnatlon or expiration of the Agreement All other provisions
of this Addendum shall survive termination or expiration of the Agreement
IN WITNESS WHEReOF, the parties have duly executed this Social
Network Addendum as of the dates set forth below intending that this Addendum
be effective as of the Effective Date.
o.-.....
PREGAMELLC
By:
Name:
r.ue:
Date:
Name: (...,..,..;,.
::>
Koasa
""(
Electronically Filed
09/19/2014 11:23:00 AM
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..........
DISTRICT COURT
CLARK COUNTY, NEVADA
------------- - - - , - - - - - - - - - - - - - ...
CASE NO.: A-14-703627-C
DEPT. NO.: IV
PREGAME LLC,
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Plaintiff,
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vs.
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JOHN KARALIS,
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--
Defendant.
L - - - - - - - - - - - - - ........
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2.
3.
For such other and further relief as the Court deems just and equitable.
3.
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For such other and further relief as the Court deems just and equitable.
This opposition and counter motion is made and based upon all the papers and pleading
on file herein and the affidavit included herewith and is made in good faith and not to dela
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justice.
__6_
-----
PROKOPIUS &-BEA:SLEY
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providing sports content and infonnation to the general public, which uses this infom1ation fo
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PREGAME and JOHN has had a business relationship for several years. They entered into at
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alleged contract called a "Content Services Agreement" effective June 18, 2012. TI1e parties also
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entered into a "Social Network Addendum". Pursuant to the Content Services Agreement JOH
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provides certain sp011s related infonnation to PREGAME along with an exclusive license tha
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allows PREGAME to "publish, display, refonnat and distribute" the information JOHN provides.
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belief' .that JOHN did so because he received an offer from one. of PREGAME'S competitors.
The fact that PREGAME would make such an allegation on information and belief indicates tha
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PREGAME has no evidence whatsoever to support the claim. PREOAME has nnt i<lentifie<i th
competitor who supposedly made the offer. Nor has PREGAME ever challenged the validity o
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causes of action, (l) breach o1coiitl'act; (2) breach of implied covenant of good faith arid fai
dealing; and (3) attorney's fees. Nowhere in the Complaint did PREGAME request injunctiv
relief. Six days later on July 16, 2014, PREGAME filed its, "Plaintiff's Motion .!'or Temporar
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Restraining Order And Preliminary Injunction". The motion was originally scheduled to b
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heard on September 16, 2014. However, PREGAME's counsel apparently obtained an Ordet
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Shortening Time which moved the hearing date to July 29, 2014.
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heating because PREGAME's counsel did not serve him with the Motion nor the Orde1
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Shortening Time. In fact, at tl1e time of the July 29, 2014, hearing JOHN had not even beet
served with PREGAME's Summons and Complaint. Consequently, JOHN was unaware tim
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PREGAME had even commenced a lawsuit against him. JOHN did not appear at the July 29
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2014, hearing. n1e minutes from the July 29, 2014 hearing indicate that PREGAME's counse
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Mr. Galliher told the Court that JOHN was out of the jurisdiction and he was unable to effec
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proper service.
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Despite these procedural circumstances, which clearly did not give this Comt persona
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jurisdiction over JOHN, a Temporary Restraining Order (TRO) was issued and signed by th
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Court on AU!,'llSt !, 20!4, and entered on August4, 2014. The TRO restricted all of JOHN'.
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business activities until August 16, 2014- effectively putting JOHN out of business.
Th
minutes !\om the hearing also indicate that Mr. Galliher was ordered to re-{ile and re-notic
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PREGAME'S Motion. A review oftbe Comt record indicates that Mr. Galliher never did so.
The Court set the matter for a status check on August 12, 2014. For reasons that ar
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unclear, no hearing was actually held on August 12,2014. Nevertheless, on August 14,2014 th
7 notuntil August 16, 2014, after PREGAME obtained the extension of the TRO, tha.t JOHN w
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finally served with the Summons, Complaint and the Temporary Restraining Order (see affidavi
of personal service on file with the Court).
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was personally served on JOHN. The extension issued on August 14, 2014 was never personal!
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served on JOHN nor was the subsequent second extension or the temporary protective order tha
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II. ARGUMENT
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NRS 22.010 Acts or omissions constituting contempts. The following acts or omission.
shall be deemed contcrnpts:
3.
Disobedience or resistance to any lawful writ, order, rule or process issued by th
court or judge at chambers.
NRS 22.030 Summary punishment of contempt committed in immediate view an
presence of court; affidavit or statement to be filed when contempt committed outside immediat
view and presence of court; disqualification of judge.
I. If a contempt is committed in the immediate view and presence of the court or judg
at chambers, the contempt may be punished summarily. If the court or judge summarily punishe
a person for a contempt pursuant to this subsection, the court or judge shall enter an order that:
(a) Recites the facts constituting the contempt in the immediate view and presence ofth
court or judge;
(b) Finds the person guilty of the contempt; and
(c) Prescribes the punishment for the contempt.
2. If a contempt is not committed in the immediate view and presence of the cour
or judge at chambers, an affidavit must be presented to the court or judge of the fact
constituting the contempt, or a statement of the facts by the masters or arbitrators.
3. Except as otherwise provided in this subsection, if a contempt is not committed in th
view and presence of the court, the judge ottlle court in whose contempt the person i
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alleged to be shall not preside at the trial of the contempt over the objection of the person. Th
provisions ofthis subsection do not apply in:
(a) Any case where a final judgment or decree of the court is drawn in question and sue
judgment or decree was entered in such court by a predecessor judge thereof I 0 years or mor
preceding the bringing of contempt proceedings for the violation of the judgment or decree.
(b) Any proceeding described in subsection I of NRS 3.223, whether or not a famil
court has been established in the judicial district.
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lawful writ, order, rule or process issued by tbe court. Any order meant td"'oi:-lne subject of
contempt proceeding must be clear, unambiguous, and set fotth tbe details of compliance i
clear, specific tetms, so the patties will know what duties or obligations are imposed.
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Cunningham v. District Court, 102 Nev. 551, 729 P .2d 1328 (1986). The moving party carrie
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the burden of demonstrating the other party had tbe ability to comply with the order, and th
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violation of the order was willful. Rodriguez v. District Court, 120 Nev. 789, 102 P.3d 41
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(2004). The inability of a contemnor to obey the order (without fault on their part) is a complet
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defense and sufficient to purge them of the contempt charged. Mccormick v. Sixth Judicia
District Court, 67 Nev. 318, 326; 218 P.2d 939 (1950). However, where the contemnors hav
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voluntarily or contumaciously brought on themselves the disability to obey the order or Decree,
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such u defense is not available; and the burden of proving inability to comply is upon th
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contemnor. !d.
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Regarding PREGAME's request for an Order to Show Cause, it has tailed to provide a
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affidavit containing specific factual allegations in support of what it alleges are the violations o
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the Temporary Restraining Order. NRS 22.030(2) requires an affidavit selling forth the fact
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constituting the contempt. The Nevada Supreme Court has slated that a request for an order t
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show cause must be supported by an affidavit setting forth the specific factual allegations whic
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Wright, 106 Nev. 407, 794 P.2d 713 (1990). In other words without an affidavit the court has n
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jurisdiction to address the issue. PREGAME has not included an affidavit in support of it.
petition.
The absence of an affidavit is renders the petition fMally defective. Therefore, thi
CoUit lacks jurisdiction to hear PREGAME'S petition for an order to show cause and it must b
---------
-------T
PREGAME contends that after JOHN-wasserved with the initial TRO he Violated it b
specific facts in support of its claim i.e., the identity of the competitor, or, when and how thes
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violations supposedly occuJTed i.e. date, time, means of transmission. Without this infonnatio
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there is no independent way of determining if JOHN did in fact to violate the TRO. Even i
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JOHN provided content to a competitor after he was served with the TRO, JOHN did not do s
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willfully because the only TRO that has ever been personally served on JOHN was the initia
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TRO issued at the July 29, 2014, heming. However, that Order by its own tenns expired o
August 14, 2014. PREGAME by its own admission did not personally serve JOHN with th
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original TRO until August 16,2014. Thus, when JOHN read the TRO he legitimately believed i
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had expired and he was no longer subject to its tenns. It is true that on August 14, 2014, th
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TRO was extended for 15 days to August 29, 2014, but the extension was never served o
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JOHN. Therefore, JOHN was unaware the TRO was still in effect after August 14, 2014
PREGAME however has no one but itself (or its lawyer) to blmne for this circumstance.
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The same argument applies to PREGAME'S claim that JOHN continues to use th
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Twitter handle "@Vegas runner" to direct customers away from PREGAME. Again PREGAM
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provides no specific evidence to prove or document that JOHN continues to usc the twitte
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handle.
It seems to JOHN that such information would be readily available yet neithe1
PREGAME nor its lawyer has produced any such evidence at the time of filing their Order t
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Show Cause. JOHN respectfully submits he has never deliberately or willfully violated the TR
that was served on him on August 16, 2014. As far as JOHN could determine based upon th
documents that were served on him the initial TRO expired on August 14, 2014. JOHN wa
b ...
found in contempt for violating orders of which he was unaware. PREGJ\.ME has failed to offet
any evidence to the contrary. JOHN is therefore requesting that PREGAME'S petition for at
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2. ATTORNEY'S FEES
NRS 18.010 provides as follows;
2.
In addition to the cases where an allowance is authorized by specific statute, th
Court may make an allowance of attorney's fees to a prevailing party:
(a)
When he has not recovered more than $20,000.00; or
(b)
Without regard to the recovery sought, when the Court finds that the claim
counterclaim, cross-claim or third party complaint or defense of the opposing party was brough
without reasonable ground or to harass the prevailing party.
In the case of Miller v. Wilfong, I I 9 P.3d 727 (2005) the Nevada Supreme Court hel
that it is within the trial Court's discretion to determine the reasonable mnount of attorney fcc.
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under a statute or mle and that in exercising its discretion, the district Court must evaluate th
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factors set forth in Brunze/l v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969).
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including the qualities of the advocate, the character and difficulty of the work performed, th
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is an experienced attomcy who has litigated numerous divorce, custody, paternity and post
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divorce actions. The legal representation in this case involved the collection and analysis of th
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JOHN'S
counsel expects to obtain a good result based on the facts of the case. JOHN has incurre
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attomey's fees in responding to what is a questionable motion at best.
::;.
JOHN is therefor
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WHEREFORE, JOHN is requesting that he have the relief sought the foregoin
opposition and counter motion.
<t_,!T(
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2014.
........ --------------------..r_}l._{)KOPIUS
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BY:
..
1.1fl(
.,--
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)
)
)
STATE OF NEVADA
COUNTY OF CLARK
1.
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2.
ss.
opposition and counter motion, including the points and authorities and any exhibit
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attached hereto and the same are true and correct to the best of my knowledge an
belief.
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For these reasons, I am requesting that the Court grant me the relief sought in 111
3.
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(5-
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<:::::<,
17 . ? ...
,{
....: ) : : ,,___ _
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Wotary Public, in and for sii'id
19 County and State
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JOt:ll 50U!if1
NOTNWf'UBUC
llTATC: OF N\0\'AC;IA
M)l
IQ..20.t5
fu:ot>.!a.;!13-1
CERTIFICATE OF MAILING
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day of September 2014, I duly deposited for mailing, first class mail, postage prepaid thereon, it
the United States Mail at Las Vegas, Nevada, a true and correct copy of the DE:FENDANT\'
COUNTER MOTION FOR HIS ATTORNEY'S FEES AND COSTS at the address lisle
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PREGAME, LLC.
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An employee of
PROKOPIUS & BEASLEY
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Hl
Eleclronically Filed
09/2212014 03:58:26 PM
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-J,./J...u-.
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DISTRICT COURT
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Defendant.
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PLAINTIFF'S RESPONSE TO
DEFENDANTS RESPONSE TO ORDER
TO SHOW CAUSE STYLED AS
DEFENDANrs OPPOSITION TO
PETITION FOR AN ORDER TO SHOW
CAUSE WHY DEFENDANT SHOULD NOT
BE HELD IN CONTEMPT
11-----------------'
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COMES NOW Plaintiff PREGAME LLC and submits the following Response to
Defendant's Response to Order to Show Cause Styled as Defendant's Opposition to Pelition for
an Order to Show Cause why Defendant John Karalis should not be held in this Court's
contempt for his failure to abide by the Court's Temporary Restraining Order duly issued in this
matter.
DATED
11 ? _
of September, 2014.
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JEFFR
Nevada
r N . 0 8078
3301 N. Buffalo
ve, Suite 195
Las Vegas, Nevada 89129
(702) 839-1100
Telephone:
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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Defendant Karalis makes essentially two arguments as to why he should not be held in
contempt for his wholesale failure to comply with the duly issued orders of this court: The first is
a procedural complaint that the Plaintiff's Petition for
he had no notice of the Temporary Restraining Order. Neither argument has merit and Karalis
should be held in contempt for his clear violations of the court's orders which continue even
today.
Relevant Facts occurring since the filing of Plaintiffs Petition
On August 26, 2014 Plaintiff filed the instant Petition for an Order to Show Cause.
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On August 27, 2014 Attomey Donn Prokopius, Esq. entered his appearance on behalf of
Defendant John Karalis. (Exhibit "1 ")
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Ill "
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Ill "
0 .
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Based upon the appearance of defense counsel the court set the hearing on Plaintiffs
Motion for PreUminary Injunction for September 11, 2014 and directed Plaintiff's counsel to
include that information in the Extension of TRO issued by the court
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support in the form of an affidavit alleging the violations of Karalis. Second, Karalis claims that
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an
On August 29, 2014 after receiving Mr. Prokopius' Notice of Appearance by mail counsel
for the Plaintiff served Mr. Prokopius with the following documents by electronic and regular mail
including a cover letter:
1)
2)
3)
4)
5)
Order Extending Temporary Restraining Order issued August 28, 2014, including the
7)
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(Exhibit "2")
2
3
Plaintiff's counsel requested and received a "read receipt" confirming that the e-mail and
the attachments were received by Mr. Prokopius's office. (Exhibit "3")
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5
Counsel for Plaintiff further confirmed that defense counsel was enrolled to receive
electronic filings in this case. (Exhibit "4')
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7
8
On September 4, 2014 Plaintiff's counsel sent another letter to Mr. Prokopius providing
screenshots of the @VegasRunner twitter page showing that Karalis was continuing to violate
the TRO. (Exhibit "5")
9
10
On September 11, 2014 the court held a hearing on Plaintiff's Motion for Preliminary
Injunction and Defendant and his counsel failed to appear. (Exhibit "6")
11
4
12
At that time the court inquired as to whether the Defendant had notice of the hearing and
accepted Plaintiff's offer of proof with regard to the following:
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included the order to appear for hearing on Preliminary Injunction on September 11, 2014 were
served on defense counsel by U.S. Mail and by electronic mail for which a read receipt was
requested and received; (Exhibits "2&3'')
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b.
issued on August 29, 2014, two days after Mr. Prokopius entered his appearance, the same was
served upon Mr. Prokopius's partner, Jeremy Beasley, Esq. by the court's electronic service
system. (Exhibit '7")
ARGUMENT
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Since the Order Extending Temporary Restraining Order issued August 28, 2014,
(including the order to appear for hearing on Preliminary Injunction on September 11, 2014) was
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A copy of the motion for preliminary injunction and the extended TRO which
Karalis' first "defense" is that Plaintiff "failed to provide an affidavit containing specific
factual allegations in support of what it alleges are the violations of the Temporary Restraining
Order."
However, Plaintiff's counsel provided an affidavit which was included with the Petition for
Order to Show Cause which stated, in pertinent part, as follows:
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Specifically,
exactly like the one we now see from Defendant, Plaintiffs counsel sent another letter to Mr.
Prokopius on September 4, 2014 which included screen shots of the @VegasRunner Twitter
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page which clearly stated "[m]y only purpose ln sending this letter is to suspend any notion that
you are not aware of Mr. Karalis' ongoing and flagrant disregard of the duly issued orders of the
court." (Exhibit "5").
In cannot be reasonably disputed that on August 29 Karalis' counsel wes also served
with ALL THREE TRO's, the original and both extensions. In the accompanying letter Plaintiff's
counsel stated that "[d]espite being personally served with the court's Temporery Restraining
Order on August 16th, 2014 Mr. Karalls has continued to engage in conduct which is in direct
violation of that Order. The court has set a hearing for September 23, 2014 to allow Mr. Karalis
to show cause why he should not be held in contempt for his continued and blatant violations of
the TRO." (See, Exhibit "2")
Consequently the claim that Defendant was unaware of the TRO is preposterous. He
was personally served with the extended TRO which was the current version on August 16th,
and not the original which expired on August 14 as he now claims; His counsel was served with
copies on August 29 by Plaintiffs counsel; and, finally the court's own electronic system served
defense counsel that day as well.
Incredibly, even service of the Preliminary Injunction failed to dissuade Mr. Karalis from
continuing to ignore the court's orders this case. On Tuesday, September 16, 2014, after the
Preliminary Injunction was signed by the court and filed, Plaintiffs counsel sent the Preliminary
Injunction along with a letter to Mr. Prokopius demanding that the Twitter account information
and password be turned over within 24 hours as ordered. (Exhibit "9") After more than 24 hours
had passed without response Plaintiff sent ANOTHER letter (Exhibit "1 0") Finally, on September
18, 2014 an email was sent by defense counsel which stated simply:
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It should be noted that this was the first communication of any kind received from
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defense counsel since the Notice of Appearance on August 29, 2014, despite the fact that they
had been retained "on or about August 19, 2014" (See Defendant's Motion to ReHear/Reconsider of Preliminary Injunction, Page 5 at Line 13-14, filed on 9/19114). In more than
30 days, in a case where a TRO had been issued and Plaintiff's counsel had sent no less than
five letters to defense counsel there had been zero communications from defense counsel.
When there finally was some communication, it came in the form of a 4 sentence e-mail with
absolutely no relevant content. Even the "opposition" addressed herein was filed on the Friday
afternoon before a Tuesday morning hearing and was filed THREE WEEKS after defense
counsel was served with the Order to Show Cause.
This has been a common tactic of the Defendant throughout this dispute: Simply ignore
the situation and conduct his business as usual. He ignored a cease and desist letter sent by
Pregame's counsel by certified mail on June 30, 2014 (even though it was sent to his current
address AND his former address where he was ultimately personally served). (Exhibit "12") He
has ignored the court's Temporary Restraining Order and Preliminary Injunction and continues to
until this day. (Exhibit "16")
As a further example, instead of turning over the Twitter account information as required
by the Preliminary Injunction Karalis DELETED the Twitter account for @VegasRunner on
September 19th, but not before siphoning off ns 34,000 plus followers to a new account called
@greek_7777. (Exhibit "14")
Only after yet another letter from Plaintiff's counsel did the
defendant finally provided the password for the Twitter account "@greek_7777" last Friday
afternoon. (Exhibit "15")
However,
at
the
same
time
Karalis
created
a third
Twitter account
called
"@greek_gambler." According to that account Karalis was appearing on Fox Sports Radio as
recently as Monday, September 22, 2014 at 8:23 am. and "breaking down #NFL #MNF and
more". (Exhibit "13")
and the Preliminary Injunction against "providing content, as that term is defined in the Content
Services Agreement between the parties, to any other entity."
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5
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In the "opposition" defendant also makes several statements that are not directly related
to either of the two arguments. For example, Defendant discusses the procedural history of the
case, of which the court is well aware. Karalis apparently contends that Plaintiff was obligated to
"re-file and re-notice" the Motion for Preliminary Injunction. However, The court minutes for July
29, 2014 state, in pertinent part "if necessary, the Temporary Restraining Order is to be
extended prior to its expiration, and the Plaintiff is to re-file the Motion for Preliminary Injunction
to provide the Defendant with adequate time to respond." In essence, counsel was advised that
in the event the TRO expired before a hearing on the Preliminary Injunction was set, it would be
necessary to re-file and re-notice the motion. Since the TRO was duly extended through
September 11, 2014 it was not an Issue.
However, once defense counsel made his appearance on August 27, the court sua
sponte set the Motion for Preliminary Injunction for hearing on September 11. Since that order
was issued on August 29th, defense counsel was served with the same via the court's electronic
service system. (Exhibit '7") Nevertheless, Plaintiffs counsel served the same order by e-mail
and regular mail upon Mr. Prokopius on the very same day, along with a copy of the motion for
TRO/Preliminary Injunction. (Exhibit "2") The notion that 3 copies of the notice, including one
directly from the court, is still not sufficient to make Defendant aware is troublesome.
Likewise, the claim that Pregame has never "challenged the validity of John's cancellation
of the Content Services Agreement" is belied by the fact that Pregame sent a Cease and Desist
letter on just12 days after Karalis' breach (Exhibit "12") and then sued him for the breach only 10
days later. It's hard to imagine a stronger challenge than the filing of a lawsuit.
ATIORNEY'S FEES
Defendant's request for attorney's fees is nothing short of madness. Defendant has done
absolutely NOTHING in this case except for ignore it. Meanwhile, Plaintiff has been forced to
expend thousands of dollars in attorney's fees and costs in an effort to enforce it's clear
contractual rights, including preparation and attendance at a Preliminary Injunction hearing at
which Defendant failed to appear. Defendant's failure to respond to both the Plaintiff and the
28
7
3
4
5
6
7
Court in any meaningful way is the only reason this case is where it is.
Under the contract Plaintiff is entitled to recover his attorney's fees for enforcing the
contract. Defendant's clear pattern of Ignorance and obfuscation in this case warrants an award
of reasonable attorney's fees to PLAINTIFF for the unnecessary and ongoing work created by
Defendant's documented and willful failure to comply with his responsibilities in this case.
Accordingly, Plaintiff requests an award of $3,000.00 as and for its reasonable attorney's fees in
dealing with Defendant's intransigence. (Exhibit "16")
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CONCLUSION
The conduct of Mr. Karafis both before and after retaining counsel has been consistent:
He has completely ignored the rights of the Plaintiff, he has ignored the prohibitions placed upon
him by the court in the form of a Temporary Restraining Order and subsequent Preliminary
Injunction, he has ignored orders setting hearings, he has ignored demands from Plaintiffs
counsel that he comply with the court's orders, even to this day he continues to ignore the
authority of this court and engage in conduct which is directly contrary to its orders.
Defendant Karalis should be harshly sanctioned for his unrepentant and frivolous conduct
during the early pendency of this action.
Further, he should be ordered to pay attorney's fees and costs in the amount of
$3,000.00 to Plaintiff for the necessity of bringing the Order to Show Cause and related issues.
Respectfully submitted this
I]..'L.-
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By
JEFlFF"FRteEVLL.:"G;aAmiiEiiF.,ElsS<af.- - Nevada B r o. 00 78
3301 N. Bu lo
e, Suite 195
Las Vegas, Nevada 89129
(702) 839-1100
Telephone:
Facsimile:
(702) 839-1113
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28
CERTIACATE OF SERVICE
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4
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Pursuant to NRCP 5(b) and EDCR 7.26, I certify that on this date, I served the foregoing
on PLAINTIFF'S RESPONSE TO DEFENDANTS RESPONSE TO ORDER TO SHOW CAUSE
STYLED AS DEFENDANT'S OPPOSmON TO PETITION FOR AN ORDER TO SHOW CAUSE
WHY DEFENDANT SHOULD NOT BE HELD IN CONTEMPT
all parties to this action by:
Facsimile
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Electronic Service
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DATED this
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EXHIBIT "1"
EXHIBIT "1"
Electronically Filed
OS/271201411:11:48AM
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NOT
DISTRICT COURT
CLARK COUNTY, NEVADA
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10
PREGAME LLC,
11
(""'
Plaintiff,
12
vs.
13
JOHN KARAUS,
14
Defendant
IS
NOTICE OF APPEARANCE
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NOTICE IS HEREBY GIVEN, that DONN W. PROKOPIUS, ESQ., of the law finn of
PROKOPIUS & BEASLEY, enters his appearance on behalf of the Defendant, JOHN
KARALTS, in the above-entitled action.
DATED
of August, 2014.
PROKOPWS & BEASLEY
BY:
W. PROKOP
ESQ.
MY R. BEASLEY, ESQ.
931 South Third Street
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CERTIFICATE OF MAILING
2
5
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United States Mail at Las Vegas, Nevada, a true and correct copy of the above and foregoin
NOTICE OF APPEARANCE in the above-entitled matter, addressed to the following at the'
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r"
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EXHIBIT "2"
EXHIBIT "2"
ATTORNEYS
JEFFREY L.
Eso ..
iaalliher@dennenrnnspear.com
U.S
NV 9'?129
JLG:ta
. www.DcNNITTWINCI"'CAJZ.co""
TCL.: 702.839.1 1 DO
:i.
7C:Z.e3'1.1 113
Electronically Filed
08/04/2014 11:05:25 AM
1
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DISTRICT COURT
PREGAME LLC,
10
l
Plaintiff,
11
vs.
12
JOHN KARALIS,
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DEfendant.
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as follows:
Accordingly, based upon the foregoing Rndings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
Ex-Parte Motion for Temporary Restraining Order is GRANTED as PREGAME LLC has
demonstrated a reasonable probability of success on the merits of its claim for breach of contract
and if Defendant Karafis co!lduct is allowed to continue, such conduct will cause irreparable
harm to PREGAME LLC for which mere compensatory damages is an inadequate remedy,
pursuant to NRS 33.010.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant John Karalis
is prohibited from providing content, as that term is defined in the Content Services Agreement
between the parties, to any other entity including, but not limited to, www.PhillyGodfather.com or
_.,
. ..,
("'
1'
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3
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..
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any other competitor of PREGAME LLC, or otherwise engaging in conduct which competes with
the normal business of PREGAME LLC until further Order of the Court, or no later than
is prohibited from utilizing the Twitter handle "@VegasRunnet' and the Nom de Gambling
'Vegas Runner" until further Order of the Court. or no later than
is prohibited from tfJSclosing any confidential or non-pubfic information related to Pregame LLC
until further Order of the Court, or no later than
\I&! 1'l.J)It.\-.
Restraining Order shall take effect immediately upon the filing of this Order, and Its terms shall
be enforced under further Order of this Court
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC
shall post a bond or other suitable security In the amount of ONE THOUSAND DOLLARS
($1,000.00) in accordance with NRCP 65 (c) as security for such costs and damages as may be
incurred or suffered by any party who is found to have been wrongfully enjoined or restrained in
this action.
DATED this
/.,I.; ,;l._F
day of
21
Submitted by:
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llo 12ol4 .
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.t
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2
Electronically Filed
0811512014 01:40:16 PM
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3
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DISTRICT COURT
PREGAME LLC,
10
<
Plaintiff,
11
vs.
12
JOHN KARAUS,
13
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1- "
1- %
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Defendant
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15
COMES NOW, The Court, having conducted a status check in the above-referenced
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2B
matter and, good cause appearing, hereby extends the Temporary Restraining Order issude by
the court on August 1, 2014 for a period of 15 days from the current dale of expiration as
follows:
IT IS HEREBY OROEREO, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
Ex-Parte Motion for Temporary Restraining Order is EXTENDED until further Order of the Court.
or no later than
auqu
2A zo ttt.
any other competitor of PREGAME LLC, or otherwise engaging in conduct which competes with
the normal business of PREGAME LLC untO further Order of the Court, or no later than
2.9-f&1. UJ rlf-.
,.,
1
2
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7
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J
12
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.,
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>
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...
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is prohibited from disclosing any confidential or non-public information related to Pregame LLC
H-fk
day of
at
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25
U pf.. .
19
22
Nevada
3301 N.
lo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
FecsirTUle:
(702) 839-1113
Altomeys for Plaintiff Pregame LLC
26
27
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o":-t...::>
OFFICIAL RECEIPT
,Or.
District Court Clerk of the Court200 Lewis Ave, 3rd Floor las Vegas, NV 89101
Rec:elpt No.
2014-92166-CCCLK
TI&I!S8Ction D;de
08/1112014
Amcwn! Paid
PAYMENT TOTAL
Check (Rel#a934) Tendered
T<>lsl Tendered
Change
08111lZ014
02:4S PM
Cashier
StelionAIKO
OFFICIAL RECEIPT
Audit
34415997
L l_ _
1.000.00
1,000.00
0.00
2
3
4
5
Electronically Filed
08/19/2014 08:49:40 AM
ORIGINAL
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7
DISTRICT COURT
10
Dept. No:
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<
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m
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rv
YB.
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<
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Defendant
SUMMONS -CIVIL
NOTICE! YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT
YOUR BBNG HEARD UNLESS YOU RESPOND WITHIN 20- DAYS.
READ THE
INFORMATION BELOW:
TO THE DEFENDANT: JOHN KARAUS
A Civil Complaint has been IDed by Thfrd..party Plaintiffs against you for the relief set fol1h
22
In the Complaint
23
1.
If you Intend to defend this lawsull, within 20 days after this Summons is
24
served on you, EllCclusive of the clay of service, you must do the fallowing:
25
(a)
Fila with Jha Clerit of this Court. whose address Is shown below, a
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("'
....
1
(b)
against you for the relief demanded in the Complaint, which could resuH In
4.
have 45 days after service of this Summons within which to file an Alrswar
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z
a
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If you Intend to seek the advice of an attorney In this matter, you should do
10
Unless you respond, your default will be entered upon application of the
5
7
Serve a copy of yow response upon the attomey whose name and
16
Clarl< CountY RegiOnal
200 Lewis Avenila
;: . .
Las Vegas, Nevada 89155: . .
. .
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Submitted by:
DENNETf WINSPEAR, LLP
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Z7
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AFFIDAYIT Of SERYICE
STA1EOFNEVADA
)
)ss
COUNTY OF CLARK
Estela Sandoval, being first duly sworn, deposes and says: That Affiant is a
citizen oflhe United States, over eighteen years of age, employed by Elite Investigations,
Nevada Private Investigator's License Number 873, and not a party to, nor inte=ted in
lhe proeeedings in which this affidavit is made. That Affiant received one (I) copy of the
attached Temporary Restraining Order, Swnmons and Complaint entitled Pregame LLC
v. John Karalls, on lhe 16"' of August, 2014. On August 16, 2014, lhe Affiant personally
served lhe above referenced docwnents upon John Kara!is at his place of residence
localedat 8055 Sapphire Cove Avenue, Las Vegas, Nevada 89117.
State of Nevada
County of Clark
Subscn'bed and sworn to before
On this
day
2014, by
jknJvd j - - -
Electronically Filed
08/27/2014 11:11:46 AM
'
I
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3
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NOT
PROKOPIUS & BEASLEY
DONN W. PROKOPIUS, ESQ.
Nevada Bar No: 6460
JEREMY R. BEASLEY, ESQ.
Nevada BarNo.: 12176
931 South Third Street
Las Vegas, Nevada 891 OJ
(702) 474-0500 I Fax (702) 9518022
general@pandblawyers.com
Attorney for Defendant, JOHN KARALIS
DISTRICT COURT
CLARK COUNTY, NEVADA
9
I0
PREGAME LLC,
II
Plaintiff,
12
vs.
13
JOHN KARALIS,
14
Defendant
IS
NOTICE OF APPEARANCE
16
17
18
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20
21
NOTICE IS HEREBY GNEN, that DONN W. PROKOPIUS, ESQ., of the law firm of
PROKOPIUS & BEASLEY, enters his appearance on behalf of the Defendant, JOHN
KARALIS, in the above-entitled action.
DATED
of August, 2014.
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23
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25
26
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BY:
W. PROKOP
ESQ.
MY R. BEASLEY, ESQ.
931 Solllh Third Street
Las Vegas, Nevada 89101
(702) 474-0500 I Fax (702) 951-8022
general@pandblawyern.com
Allomey for Defendant
CERTIFJCATE OF MAILING
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United States Mail at Las Vegas, Nevada, a true and correct copy of the above and foregoin
NOTICE OF APPEARANCE in the above-entitled matter, addressed to the following
last known address
Jeffrey L. Galliher, Esq.
DENNETT WINSPEAR, LLP
3301 N. Buffalo Drive, Suite 195
Las Vegas, NV 89129
A/lorney for Plain/iff.
PREGAMELLC
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Electronically Filed
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f!F'
1
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j.!z.f..-- -
jgaUiher@dennettwinspear.com
DENNETT WINSPEAR, LLP
6
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DISTRICT COURT
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Case No:
Oepl No:
A 14-703627- C
XXIII
vs.
JOHN KARAUS, an lnarvidual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
COMPLAINT
15
Oefendanl
16
17
16
and through its attorneys of record of the law firm of DENNETT WINS PEAR, LLP, and
19
20
follows:
21
I.
22
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24
25
"Pregame LLC" or "Plaintiff") was a Limited Liability Company duly organized and
26
operating pursuant to the laws of The State of Nevada with its principal place of
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2.
3
4
3.
7
8
Defendants by such fictitious names. Plaintiff Is informed and believes and thereon
alleges that each of the Defendants designated herein as DOE is responsible in some
9
10
bl
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11
Plaintiff as herein alleged, and Plaintiff will ask leave of the Court to amend the
12
Complaint to insert the true names and capacities of DOES 1 through 20, ROE
13
COMPANIES 1 through 20, and ROE CORPORATIONS 1 through 20, wheri the same
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4.
This Court has jurisdiction in this matter and venue is proper because this
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action relates
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GENERAL ALLEGATIONS
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5.
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Plaintiff provides sports related content of interest to sports fans and sports bettors.
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Some of that content is provided free of charge to viewers of the website and other
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content. designated 'premium content. can only be accessed after paying a fee.
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Premium content subscription fees are a main source of revenue for Plaintiffs business.
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Plaintiff obtains the content from contracted content providers including Defendant John
Karalls.
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6.
On or about June 18, 2012 Pregame LLC entered into a Content Services
Agreement ("the Agreement") with Defendant Karalls, and in or around 2009 Pregame
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LLC entered into a Social Network Addendum ("the Addendum") with Defendant Karalis.
The Agreement and the Addendum are attached to hereto as Exhibits A and
respectively.
By its express tenns the Agreement was to continue for a period of 5
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s.
years, tennlnatlng In June 2017. (Exhibit "A", Paragraph 9) The Agreement followed a
previous similar contract between the parties which was replaced by the Agreement.
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The parties have operated under the current and previous contracts for a period of
>
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license to "publish, display, reformat and distribute" all sports related content generated
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by Defendant Karalis, (Exhibit "A , Paragraph 2) as well as the right to bundle such
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9.
The Agreement provides that Karalis may not publicly disclose Information
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related to his relationship with Pregame LLC (Exhlbil"A", Paragraph 13), that Kara6s will
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not undertake any conlllctlng obligations (Exhibit "A", Paragraph 16), and that Karalls will
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pregame.com (Exhibit "A", Paragraph 18). The Agreement further restricts Kalaris' use
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10.
account holder of any Social Site accounts, including Twitter handles, utilized by
Defendant Karalis in connection with the production of content Karalls was further
obligated to provide the current usemame and password for all such accounts to Plaintiff
and was prohibited from changing said passwords without Plaintiff's prior written
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consent Karalis was also forbidden from referencing any third party competitor to
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The Addendum included a liquidated damages clause specifying damages for each and
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11.
"resign" from his contractual relationship with Pregame LLC. Upon information and
belief Karalls was induced to do so by an offer from a direct competitor to Pregame LLC.
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Pregame.com without prior written consent of the Plaintiff. (Exhibit "8", Paragraph 3).
15
Subsequently Karalis has engaged in conduct in direct violation of his obligations and
Pregame LLC's rights under the Agreement Such violations have been ongoing and
continuous and have caused substantial damage to Pregame LLC.
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Ill.
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(Breach of Contract)
12.
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though said paragraphs were fully set forth and incorporates the same herein by
reference.
13.
A valid and existing contract for was entered into between Plaintiff and
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Defendants on or about June 18, 2012 in the form of the Agreement and In or around
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14.
That Pregame LLC fully periormed each and every one of its obligations
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15.
faDing to provide content to Pregame LLC since on or about June 18, 2014 and Instead
providing such content to a competitor of Pregame LLC.
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16.
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continuing to use the Nom de Gambfrng of "Vegas Runner" and referencing competitors
of Pregame LLC through such mediums without prior written consent of the Pfaintiff.
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That It has been necessary for Plaintiff to retain the services of an attorney
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seizing control of the user account for the Twitter handle "@VegasRunner," and
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IV.
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though said paragraphs were fully set forth and incorporates the same herein by
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reference.
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22.
23.
24.
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to the Plaintiff.
terminate, and otherwise falling to abide by the binding tenms of, the Contracts despite
Plainllfl's fuU performance of its obligations thereunder.
25.
2
3
26.
That it has been necessary for Plaintiff to retain the services of attorneys to
prosecute this action, and Defendants should be required to pay reasonable attorneys'
4
fees and costs of prosecuting same.
v.
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9
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27.
!hough said paragraphs were fully set forth and Incorporates the same herein by
reference.
28.
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Pursuant
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reasonable legal
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29.
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compelled to file the instant case which is the type of "action" contemplated by
Paragraph 26 of the Agreement.
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30.
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1.
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2.
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Ill
Ill
Ill
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3.
4.
5.
For such other and further relief as the Court deems just and proper.
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DATED this
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JEFFR
Nevada
3301 N.
lo
ve, SUite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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EXHIBIT "A"
EXHIBIT "A"
C. \\'bereas. Pregame desires to n:ceivc such Content on the terms and comlitions set
fonh in this Agreement.
IN CONSIDERA nON OF the matters described above and of the mumal benefits and
obligations set forth in this Agn:ement, the parties to !his Agn:ement agree as follows:
i("'
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included in such di:;counted offerings over the COimle of any calendar IIIODth
Coment Services
(20) days after this Agreement is terminated Content Provider will certifY in
writing to Pregame lhat Content Provider has complied with these obligations.
16. No Conflicting Obligations. During the term of this
and for a
period of two (2) ye;m; after termination or expiration. except as may be
expressly pennined on Exhibit A. Content Pro\ider will not, directly or
indirectly, (i) be involved with a business which is in competition with
Pregame. or (ii) divert or anempt to divert liD)' business that Pregame bas
enjoyed. After the termination of this Agreement, Content Provider is
prohibited from contacting.. attempting to contact, solicit any CUSIODler, buyer
or person or providing any oontent to whom Content Provider had contact
with while fulfilling its obligations under this Agreement.
.------
....
20. Trademarlcs. CoOient Provider shall not utilize the Dlllllc Pregame or any of
P1egame's tmdernarks without the prior written consent of Pregame.
21. Rights in ConJent Content Provider agrees that any item of iotellecrual or
anistic property (including Content) generated or provided by Content
Provider in connection with the perl'onnance of this Agreement is a -work for
hire" under all applicable laws aod the sole propeny of Pregame.
22. Assignmeqt Content Provider will not voluntarily or by ope!>llion oflaw
assign or otherwise tranSfer its obligations under this Agreement withoUI the
prior written consent of Pregame. Any anemptcd
in violation of
this provision sba1l be null aod void. This Agreement will enure to tbe benefit
of aod be binding on the panies and their respective penni !ted successors and
penoined assigns.
23. Nllllln' of Rcla!jnnship. It is expressly agreed that Content Provider is acting
as an independent contractor and not as an employee or agent in pro'iding the
Content Content Pro,ider and Pregame acknowledge that this Agreement
not creale a partnership or joint venture between them (unleslo expressly
staled in any other prior agreement) and is exclusively a cont.ract for senice.
24. Modificaiion. Any amendment or modification of this Agreement or
--. --------------:
reason.
32. GoYeming Law. This Agreement ood the performance under this Agreement,
and all suits and special proceedings under this Agreement, be construed in
accordance with and governed by the laws of the Stale of Nevada, without
reference to its choice of law pro\isions. All actions and proceedings
pertaining 10 this Agreement \\ill be filed and litigated exclusively in any Stale
court or federal coun locmcd in Clark County, Nevada. Pregame and ConteRI
Pro\ider expressly ronsent to the jurisdiction of these courts, agree that venue
is proper in these COwtS and company and you consent 10 service of process
made at your last kno\lill address in companies records.
33. Severabilit..-. In the event that any of the provisions of this Agreement are
held 10 be invalid or unenforceable in whole or in parL all other provisions
will nevenbeless continue 10 be valid and enforceable with the invalid or
unenforceable pans severed from the remainder of this Agreement.
34. Waiver. The waiver by either party of a breach. default, delay or omission of
any of the provisions of this Agreement by the other party ";u not be
construed as a waiver of BD)' subsequent breach of tbe same or other
provisions.
35. BIO!!!!ing Con!e!lt In the event Content Provider pro\ides any conrent to blog
sileS, bulletin boan1s ur otba communiCII!ion forums bost.:d by fu:game,
Conten! Pro\ider agrees to be botmd by and strictly comply with the Terms of
Use loca!ed at www.pregame.comltenns-of-service
-------------
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Stale of
County of
Nd lilifCl
this. the
me a not? public. lhe
undersigoedofficer,personallyappeared
U{l11 ( L
,knowntome
(or sa:tisfaclonly proven) to be lhe person ose namb is subsaibed 10 the within
instrumem. and acknowledged thai be execuu:d lhe same for the purposes thereiJJ
contained.
an
E:Lbibit A
k!3ase\int:
-Gross Revenues" means sums actually received from the resale of all fee
based content 10 end users {whether through Pregame or a Third Party Si!e).
"{'nowth
means the result of dividing the Ner Revenues for the prior
calo:ndar year by the Net Revenues for the Baseline Year. For avoidance of
doubt. the Growth R.ale can not be less than zero.
means costs RaSOnably neeessa1y in order 10 sell and
"Necessary
distrib111e conlent, including credit can! processing fees, refunds, crediiS.
charges by offilia!e parmers, the Coo!ent"s proportiODale share of credit card
"charge-backs" as a pen:ent of IOta! content sales, the Content's proportionale
share of costs incurred in connection with Pregame's loyalty program and any
other costs reasonably necessary 10 the ability to sell and distribute the
Content.
"Net Revenues" means Gross Re1enues minus Necessary Expenses during a
calendar year.
EXHIBIT "B"
EXHIBIT "B"
A.
Whereas, Pregame and Content Provider have previouslljentered
into a Content Services Agreement with an effective date of I 0 /B /';).q!?
(the "Agreeroent1 pursuant to which Content Provider provides to Pregame
certain content regarding upcoming and past sporting events and sports related
information (collectively, the "Content;.
B.
Whereas, Content Provider desires to establish and maintain an
account on one or more social networking sites such as Twitter, Facebook and
MySpace (collectively, the "Social Sjtes") on which Content Provider will Promote
the Content
C.
Whereas, the parties desire to estabfish certain understandings as
to Content Provider's use of Social Sites as set forth in this Agreement
IN CONSIDERATION OF the matters described above and of the mutual
benefits and obrtgations set forth In this Addendum, the parties agree as follows:
1.
Pregame" or other logo. Content Provider covenants and agrees to maintain the
accuracy of each statement in this Section for the duration of the Agreement.
4.
.,(-..,*"---
Pregame Initials:
5.
Content Control. Content Provider shall be responsible for all
content posted or otherwise transmitted through the Account Content Provider
shaU indemnify, defend and hold harmless Pregame from and against any and all
claims {including all liabilities, costs. expenses (such as attorney fees).
obligations and damages) in any way arising from or related to the Account
6.
Effect of Termination. Content Provider's abiUty to access and use
of all Accounts pursuant to Section of this Addendum shall automatically
terminate upon termination or expiration of the Agreement All othar provisions
of this Addendum shall survive termination or expiration of the Agreement
IN WITNESS WHEREOF, the parties have duly executed this Social
Network Addendum as of the dates set forth below intending that this Addendum
be effective as of the Effective Date.
PREGAMELLC
.&-.
Name:
Tille:
Date:
6!14 '
:.:>
Name: (qg;.A,
C E c.)
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jgalllher@dennettwinspear.com
DENNETT WIN SPEAR, LLP
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-11 00
FacsimHe:
(702) 839-1113
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DISTRICT COURT
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Company
Case No:
Plalntiff,
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Dept. No:
vs.
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
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Defendant.
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Pursuant to NRS Chapter 19, as amended by Senate BiU 106, ffling fees are submitted
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DATED
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DENNETT /SPEAR, LLP
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JEFFRE
, ESQ.
078
3301 N.
lo Drive, Suite 195
Les Vegas, Nevada 89129
Telephone:
(702) 839-11 00
Facsimile:
(702) 839-1113
Nevada
Electronically Filed
'
0711612014 04:14:05 PM
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j,.IJ...._
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DISTRICT COURT
PR.EGAME LLC,
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Plaintiff,
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JOHN KARALIS,
rv
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Defendant.
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COMES NOW, Plaintiff, PREGAME LLC, by and through its counsel, DENNETT
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WINSPEAR, and hereby submits the following Motion pursuant to Article 6 of the Nevada
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This Motion is made and based upon the pleadings and papers on file herein. the Points
and Authorities cited, and oral argument of counsel, if any, at the time of hearing.
DATED this
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Nevada Ba No.
NOTICE OF MOTION
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TO:
YOU, AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the undersigned counsel
will bring the above and foregoing PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING
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ORDER AND PRELIMINARY INJUNCTION on for hearing before the above-entitled Court in
8 : 30 t:m., or
DeplNo.4onthe
16 dayof SEPTEMBER
2014atthehourof
DATED this
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NevadaB
3301 N. B
o Drtve, SUite 195
Las Vegas, Nevada 89129
(702) 839-11 00
Telephone:
Facsimile:
(702) 839-1113
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I.
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SYNOPSIS
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at
Temporary Restraining Order and Preliminary Injunction, Plaintiffs seek to prevent Defendant
John Karalis from the continuous and ongoing distribution of exclusive content belonging to
Plaintilf Pregame LLC as weU as the continuous and ongoing use of the Twitter handle
@VegasRunner which is the exclusive property of Pregame LLC.
II.
FACTUAL BACKGROUND
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Wide
web at "www.pregame.corn
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content of interest to sports fans and sports bettors. Some of that content Is provided
free of charge to viewers of the website and other content, designated "premium" content, can
only be accessed through a paid subscription. Premium content subscription fees are a main
source of revenue for Plaintiffs business.
Social Network Addendum ('1he Addendumj with Defendant Karalis. The Agreement and the
Addendum are attached to Pregame LLC's Motion for Temporary Restraining Order and
PreUminary Injunction as Exhibits "1" and "2", respectively. By its express terms the Agreement
was to continue for a period of 5 years, terminating in June 2017. (Exhibit "1", Paragraph 9) The
Agreement followed a previous similar contract between the parties whlch
Agreement. The parties have operated under the current and previous contracts for a period of
several years without incident
Pursuant to the Agreement Defendant Karalis granted Plaintiff an exclusive 6cense to
"publish, display, reformat and distribute" all sports related content generated by Defendant
Karalls, (Exhibit "1", Paragraph 2) es well as the right to bundle such content with that of other
providers. (ExhibH "1 ", Paragraph 3). In addition, the Agreement provides that Karalis may not
pubficly disclose information related to his relationship with Pregame LLC (Exhibit "1", Paragraph
13), that Karalls will not undertake any conflicting obligations (Exhibit "1", Paragraph 16), and
that Karalis will not attempt to induce employees or customers of Plaintiff to leave Pregame LLC
or pregame.com (Exhibit "1", Paragraph 18). The Agreement further restricts Kalatis' use of the
Nom De Gambling 'Vegas Runner."
Pursuant to the Addendum Plaintiff was entitled to be the registered account holder of
any Social Site accounts, including Twitter handles, utilized by Defendant Karalis in connection
with the production of content. Karalis was further obligated to provide the current usemame
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without Plaintiffs prior written consent. Finally, Karalis was forbidden from referencing any third
party competitor to pregame.com without prior written consent of the Plaintiff.
(Exhibit "2",
Paragraph 3). The Addendum included a liquidated damages clause specifying damages for
each and every violation of the provisions outlined above. (Exhibit "2", Paragraph 4).
Nevertheless, on or about June 18, 2014 Defendant Karal'ls attempted to "resign" from
his conlractual relationship with Pregame LLC. Upon infonnation and belief Karalis
to do so by an offer from a direct competitor to Pregame UC.
was induced
engaged in conduct in direct violation of his obligations and Pregame LLC's rights under the
Agreement. Such violations have been ongoing and continuous and have caused substantial
damage to Pregame UC. The nature of the damage to Pregame LLC Is Irreparable Inasmuch
as the content which Karalis Is obligated to provide to Pregame LLC for distribution is being
provided to a competitor. Onca distributed to the public by the competitor such content cannot
be "undistributed" and the value of that content Is lost to Pregame LLC forever. In addition, the
OlliJoing disclosure of information related to Pregame LlC by Karafis further results in
irreparable harm as such Information, confidential and otherwise, cannot be retrieved once made
public by Kara6s .
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Ill.
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LEGALSTANDARD
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Article 6, I>BC!ion 6 of the Nevada Constitution specifically grants the district courts power
to issue writs of injunction. The basis for granting injunctive refref Is equity. Sherman v. Clark, 4
Nev. 138 (1 868).
Coronet Homes, Inc. v. Mylan, B4 Nev. 435, 437, 442 P.2d 901, 902 (1968), and Thorn v.
Sweeney, 12 Nev. 251 (1877).
temporary restraining orders, (2) preliminary injunctions, and (3) pennanent injunctions. NRCP
65 (2004). The purpose of a temporary restraining order is to prevent irreparable harm until the
parties can be heard on a motion for preliminary injunction. A preliminary injunction is designed
3
4
to continue to protect the applicant from irreparable injury and preserve or restore the status quo
pending final judgment. Otlenheimber v. Real estate Division, 91 Nev. 338, 342, 535 P.2d 1284,
1285 (1975) and
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NRCP 65 and NRS 33.010 autholize the Court to grant injunctive relief when the
commission or continuance of an
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33.010 provides:
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Memory Gardens of Las Vegas, Inc. v. Pet Ponderosa Memorial Gardens, Inc.,
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Although no precise burden of proof must be met by the party seeking injunctive
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courts lracfrtionaDy consider the following equitable criteria: (a) the threat of irreparable injury; (b)
17
the plaintlft's Hkellhood of success on the merits; (c) the relative interests of the parties,
18
balance of hardships on each party; and (d) the interests of the public. See, e.g. Miller v. Cal.
19
Pac. Medical
20
Co-op,
21
plaintiff's likelihood of success on the merits are the facts most often cited. See
22
Capital Mgmt Consultants, Inc., 102 Nev. 444, 446, 726 P.2d 335, 337 (1986).
27
e.g., Sobol v.
IV.
ARGUMENT
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Center., 19 F. 3d 449, 456 (9"' Cir. 1994) citing U.S. v. Odessa Union Warehouse
833 F.2d 172, 174 (9"' Cir. 1987). However, the threat of irreparable injury and the
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or the
A.
"Injunctive refief is not available in the absence of actual or threatening injury, loss or
28
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damage." Berryman v. International Brotherhood of Elec. Worken;, 82 Nev. 277, 280, 416 P.2d
387, 388 (1966).
the toumament are unique, one-time events that can never be duplicated. Upon Information and
belief Defendant Karalis is providing content related to the World Cup on an ongoing basis to a
competitor of Pregame LLC in violation of Pregame LLC's clear and exclusive conlractual right to
such content That same content includes information that, upon reasonable refJanee, Pregame
LLC anticipated receiving from Karalis (as is its contractual right) and distributing
to its
customers. Every bit of content that Karalis provides to a service other than Pregame LLC is lost
to Pregame LLC forever.
The Agreement specilicaUy restricts Karalis from divulging any non-public information
pertaining to Pregame LLC, including information disclosed to Karalis or leamed by him as a
result of his relationship to Pregame LLC through the Agreement Upon information and befief
Karalis has in fact disclosed Confidential Information, as defined by the Agreement, since his
attempt to unilaterally avoid the Agreement In addition, the on-going disclosure of information
related to Pregame LLC by Karalls further results in irreparable harm as such information,
confidential and otherwise, cannot be retrieved once made pubflc by Keralis.
Clearty the
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6
B.
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A preliminary injunction is available upon a showing that the party seeking it enjoys a
reasonable probability of success on the merits" SObol v. Capital Management Consultan/s, Inc.
102 Nev. 444, 726 P.2d 335 (1986) Here, Plaintiff will easily be able to estabfish the existence of
Restatement of Contracts 19-24; LemoureiiX v. Bum7fvii1e Racing Ass'n, 91 R.I. 94, 161 A.2d
10
213, 215 (1960), that Kalaris' conduct consll!u!es a breach of that contract and that as a result of
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decided to unDateraDy extricate himself from the relationship when something which he
14
perceived to be a better deal came along. The contracl provides no such mechanism for
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a.
lal
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C.
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between parties. Rhodes Mining Co. v. Belleville Placer Mining Co., 32 Nev. 230, 108 P. 561,
562 (191 0). The courts do not always apply this factor however, when determining whether an
injunction should issue. "The equitable principle of relative hardship is available only to innocent
parties who proceed without knowiedge or warning that they are acting contrary to others' vested
property rights.' Gladstone v. Gregory, 95 Nev. 474, 480, 596 P.2d 491 (1979). If both parties
engaged in inequitable conduct or if both parties acted equitable then, end only then, would the
cowt be required to go through the step of balancing hardships prior to issuing a temporary
restraining order or preliminary injunction. ld.
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Karalis knew of his contractual obligation to provide exclusive content to Pregame LLC.
In fact, Karalls has been operating under that obligation for the past several years. Karalls' only
motivation for breaching the contract with Pregame LLC was an offer of more money from a
competitor. The ability to obtain Karalis' content for publication
was
Because Karalis
was
generated by publication of his content he was directly aware of the substantial extent of the
harm Pregame LLC would suffer If he decided to simply stop providing the content to Pregame
LLC and start providing H instead to
a competitor.
Because Karalis Is the only party in this case engaged in inequitable conduct, it is not
appropriate for the court to consider whatever hardship may resuH to him by issue of a temporary
restraining order and/or preliminary injunction. The temporary restraining order foDowed by a
preliminary injunction should be granted.
17
D.
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The public Interest presented in this case is the need for public confidence when entering
into commercial contracts that mutually beneficial, longstanding contractual relationships may
not simply be abandoned by one party when a perceived "better deal" comes along. The ability
of a non-breaching party to quickly and efficiently enforce Hs rights under a contract must be
maintained. To allow the obvious, unjustified and continuous breach of a service contract, such
as the one in this case, while forcing the aggrieved party to pursue protracted litigation to enforce
its rights undermines the expectations of businesses and citizens who rely every day on those
promises to perfonn. The timely and economical remedy of a TRO/ preliminary injunction early
on is an essential element in maintaining the effectiveness and enforceability of commercial
28
8
contracts.
v.
CONCLUSION
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immediately and set a r:aring and grant a preliminary injunction on the same grounds.
DATED this
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EXHIBIT "1"
EXHIBIT "1"
C. Wben:as. Pn:game desires 10 receive such CoD!Cill on the lenDS and conditioos set
fonb in this Agieanent.
IN CONSIDERATION OF the man.crs described above lllld of the muroal bc:oefits ami
obligations se1 forth io this AglecalC'Ill, the parties 10 this Agn:erucl1l agree as follows:
I. Comer!! !\ee:riptjon. CoDieal Pro-idee hereby IJili'CCS 10 provide Pn:gm11e the
Contcnl (inc:lndiug infoml8lion on spans beniPg, injwie:s, oews, and fl1IIDC
pmclictions). The
!!pplics 1o all !he mqjor spans ofiDI=st in
die United SlaleS (e.g., American Fontball both College and Professional.
Major League a-ball. Baskerball bolh College and Professional, European
Football). Ill addition 10 spans of secondiUy iD1=st such as
racing.
boxiJI&. Mixed Martial Ans, I!Oif. teonis. BDd Olhers. The Omtmu may consist
of tcx1. audio, visual or &DY c:ombinatioa of1he foregoing IIDd may be
providl:d to Pregame in any mii!UIIIJy agreed fo.rmal v.obelher 11111gible or
inlaagible.
2.
publish, display. reformatlllld distribllle the Coment via 1111)' means. Unless
stilled Olherwise on Exhihi1 A (i) this license wtll he exclusive and
(u) Pregame may subliceasc its rights hen::uDder as a S)'Ddica1ar of the
Comeut. The parties acknawlcdge and B!1Jee !bal some lll\ltlllllly agreed upou
portioo of the ConlcDl (lbouG}l no less than 1O"A. of overall Ccn!cnt) will be
providl:d 10 end users a1 no charge.
3.
Bund!inl! Ucense.. Plqame may buodl" 11. Coolen! Provider's CooJem with
the conte111 of cnber c:on1en1 providers.
4.
J"f..
---------------incJndecf in such discoumed offerings over the c:ow-se of iiDY calclldar IDODih
without the expleSS consent of !he Coment Provider.
S.
6. Coalenl Pnnider Pr9moliooal Effort. COIIIeDt Provider shall use its best
eJfmu to (i) promote the sale or the Coolentlbrougb Pregame's website: aud
(ii) promote oW:r content pro'ider$ publishing content on Plegame's
wc:bs;se.
Pt gante com
'"Confiden!ial
(20) days after Ibis Agrcemi:DI is tenninaled COIIICDI Provider will certify in
writing 1o Paesame thai Conli:Jlt Provider bas complied with lhcse obligations.
16. No Cqnfljrtipg Qbfirtions. During the lenD of Ibis Agn:c:ment aud for a
period two (2) )'elliS after tmninatiou or expiration. exccpl as
be
eoqnessiy permilled on E.P,ibit A. Con1e111 Pro\ider will not. dUectly or
or
may
b.
or
":1"1--
26. At!omevs Fees. In the event tbat legal acdon is brougld to enforce or in1erpret
any tc:nD of this At:Jeement. the pnn'ailin& pany ,..;n be entitled to =ow:r, in
additicm to aay other damages or awml, all reasonable legal COSIS and fees
8SSO' iacd with the aetion.
27. fprin; Alm!!;mi:IJl. This AgleemCIIIIepn:sems the Clllire
and
BDd undCI'S1atldings
--------------------,
reason.
32. Goyeming Law. This Agn:emenllllld the performanc:e Wlder this Agieemenl,
lllld all suits and special proceediogs under this Agreemenl, be conslrued in
acconlauce witb and govemcd by lhe laws oflhe Stale of Nevada, wilhoul
reference 10 its choice of law provisions. AIIIIC!ions IIDd proceedings
pertaining 10 this Atpeement wiU be liii>IIIIDd Utigaled aclusively in any Sl8lc
court or 1ecleral court IOCIIIed in Clark Couoty, Nevada. Pregame and CODlCDl
Provider
enscnt to the jwUdiclion of these cowu, agn:e that venue
i5 proper in these eouns and company and you CIOII5CI1I 10 senice or process
made Bl your last known address in companies records.
33. Scwnbilitv. In the eveut that any of"the provisiOIIS of !his Agleement are
beld 10 be in\'alid or UIICIIforceablc in wbolc or in pan. all other provisions
wiU oevenbeless COI1IiDue 10 be valid and e:ufon:eab\e with the iovalld or
lllll:l1fosceable pariS sevm:d from lhe remainder or Ibis Aglec:mlliJL
34.
or
prD\oisiOllS.
35. B!wping CoD'S" lrl the C\'I:JII CoiiiCDI Prcnidcr pro\ides auy COIItCIIIIO blog
sites. bldleliu boards or olher commwtiallicm furvms bU51t:d by Plepwe,
CoutCDI Providct- 88JCCS lo be bouod by and slriclly ccunply with 1hz: Terms or
Use loc:aled m - ....
----------- --"'''
IN WITNESS WHEREOF, the panits have duly cxec:uted lh1s Agnlemeut as of die
dales set fllf1b below ioleDding lhallhis Agieewenl be cffeclive as of the Effective Dale.
:
'
Ii
i
""l
!
!i.J.bibil A
-oms:s
"Qmwth Rme"' means !he result of dividing the Net Rc:vcnues for the prior
caleztdar year by lhc Net Revecues for me Baseline YClll". For avoidance of
dollhl. the Growth Rale can not be less than zero.
"Nt:CCSS81 v
means costs JQSOIIIIbly
ill order 10 sell aDd
distribtae eonlCIII, iaclwiing aedh c:anl processing fees. refimds, =di!S,
charges by nffi!iate pmmers, !he Contenrs proporti011a1e s1me of credit card
"charge-bacl:s" as a percenl of total eolllenl sales, the Comenl's popo.tionme
sluue of costs
in eonneaion with Plegame's loyalty program and any
Olher casts reasoaably necessary 10 lhe abillty 10 sell and disln'bule lhe
Con!CIIl
NCI Revenues fiom bUDdled eonleot shall be divided pro-ra1a among !be
coauibiiiOIS.
by
lhanJ!I%.
II Content prhgcs an: sold iD wbicb lite promised delivery of !he Content
mends beyond lhe calendar month of purcbese. me IICCOIJDiiog of 11C1
eom:spoods with the IICtual delivery of !he Con!eot (i.e. the pe:n::eu111ge of the
conteut acmally delivered in a give:a calendar J'DOIIIh will dielllle the pen::entage of
pacbge's net revenue allotled 10 thallllOlllb). For example, if a Collleill package
EXHIBIT "2"
EXHIBIT "2"
B.
Whereas, Content PJOVider desires to establish and mainlain an
account on one or more social netwoddng sites such as Twlller, Facebook anti
MySpace (collective!Y. the "Sociaa Sites") on which Content Provider wiD Promote
the Content.
Whereas, the parties desire to establish certain understandings as
C.
to Content Provider's use of Social Sites as set folth in this Agreemenl
2.
Pregame Netwolk. Pregame operates a website at
www.preoame.com (the "Websste") to which Content Provider provides the
Content. As one of its features, the Website provides mafketing and networlcing
funcllonaDty (tha "Pregame Networit").
3.
Prpmo!ioo on !be P!eqame Network. Content Provider may
promote its presence on Social Sites llvtJugh lhe Pregame Network if and only If
all of the following are true: (i) Pregame is the registered account holder of the
applicable Social Site account (each an "Account"); (ii) Content Provider has
delivered the current user name and password for the Aa:ount to Pregame and
does not change these Items without Pregame's prior written COl ISent
(Ill) Content piOIIider shall not reference any third party (eg a competitor
Pregame.com) ttvough the Account without prior wriUen pennlsslon of Pregame;
and (lv) Pregan 1e may modify the look and feel (but not the content) of the Social
Pages associated with the Aa:ount. Including placement a "Sponsored by
Sociol N......nt
CO!Io,t.m
Pregame" or other logo. Content Provider covenants and agrees to malnlaln the
accuracy of each statement in this Section for the duration of the Agreement.
4.
Uquidated Damages. IN THE EVENT CONTENT PROVIDER
UTILIZES THE ACCOUNT IN VIOLATION OF SECTION THEN CONTENT
PROVIDER AGREES TI-IAT PREGAME WILL BE DAMAGED IN AN AMOUNT
WHICH IS NOT READILY ASCERTAINABLE. DUE TO> THE SPECIAL NATURE
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN.
FURTHER. CONTENT PROVIDER WISHES TO HAVE A UMITATION PLACED
UPON ITS POTENTIAL UABIUTY TO PREGAME IN THE EVENT OF SUCH A
BREACH. THEREFORE. CONTENT PROVIDER AND PREGAME HEREBY
AGREE THAT CONTENT PROVIDER SHALL PAY THE SUM OF $50.00 PER
MARKETING MESSAGE TO ACCOUNT FOLLOWER (E.G.. 1,000
FOUOWERS- ONE MESSAGE- S50,000) IN VIOLATION OF SECTION
PREGAME AND CONTENT PROVIDER HEREBY EXPRESSLY AGREE THAT
SUCH PAYMENT BY CONTENT PROVIDER IS REASONABLE AND IT
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PREGAME AND
SHAU NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENAL'TY.
CONTENT PROVIDER AND PREGAME ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INITIALS IMMEDIATEl.Y BELOW AGREE TO BE BOUND BY ITS
TERMS.
Pregame Initials:
5.
Content Con!rpl Content Provider shaD be responsible for all
content posted or otherwise transmitted through the Account Content Provider
shaU indemnify, defend and hold harmless Pregame from and against any and au
claims (Including aD llabililies, costs, expenses (such as attorney fees),
obligations and damages) in any way arising from or related to the AocounL
6.
Effect of Termination. Content Provider's abiDty to access and use
of aD Accounts pursuant to Section of this Addendum 6hafl autornalically
terminate upon termination or expiration of the Agreement AD other provisions
shaD survive termination or expiration of the Agreement
of this Addendum
Social.-- Adclcncllial
PREGAMELLC
By.
By.
Name: Q,_..Jc.<-L
Tille:
Date:
,&..,c, ....
&fi2!-'=:::=::::.=>_
Name:
(q<!Mj..
I; 0
Date: Jzl{09
I
""'FS'b "\.
zoca
1
2
3
DISTRICT COURT
PREGAME UC,
10
<
Plaintiff,
11
vs.
12
JOHN KARALIS,
case No:
Dept. No:
13
Defendant
14
m
>
1- ..
1-
Ill
c
z
z
Ill
15
16
17
>
<
18
2.
19
3.
20
21
22
Z3
own 1
3.
'
Affiant provides this Affidavit in support of Pregame UC's Motion for Temporary 1
4.
Plaintiff
operates
website
residing
on
the
wide
world
web
at
24
25
provides sports related content of Interest to sports fans and sports bettors.
Some of that
content is proYided free of charge to \liewers of the website and other content, designated
27
28
Premium oontenl
..
1
2
3
5
6
7
a
9
10
11
12
..r
13
e
ff-
>
w
%
14
15
w
D
z ..
16
18
<
17
19
20
21
Z2
23
24
25
26
27
5.
On or about June 18, 2012 Pregame LLC entered into a Content Services
Agreement ("the Agreemenr) wilh Defendant Karalis, and in or around 2009 Pregame LLC
entered into a Social
Agreement and the Addendum are attached to Pregame LLC's Motion for Temporary
Restraining Order and Preliminary Injunction as Exhibits "A" and "B", respectively.
6.
By its express tenns the Agreement was to continue for a paned of 5 years,
terminating in June 2017. The Agreement followed a previous similar contract between the
parties which was replaced by the Agreemenl The parties have operated under the current and
previous contracts for a peliod of several years without incidenl
7.
license to "publish, display, reformat and disbibute" all sports related content generated by
Defendant KaraftS, as weD as the right to bundle such content with that of other pro\'iders. In
addition, the Agneement provides that Karafis may not publicly disclose information related lo his
relationship with Pregame LLC. that Karalis wiH not undertake any conflicting obf19etions, and
that Karalis Will not attempt to induce employees or customers of Plaintiff to leave Pregame LLC
or pregame.com. The Agreement further resbids Kalaris' use of the Nom De GamblirJ9 "Vegas
Runner".
8.
holder of any Social Site accounts, including Twitter handles, ubT!ZBd by Defendant Karalis in
connection with the production of content Karafis was further obfJ9Sted to provide the current /
usemame and password for all such accounts
changing said
passwords without Plaintiff's prior written consenl Karafis was also forbidden from referencing
any third party competitor to pregame .com on Social Sites without pnor written consent of the
Pregame LLC. The Addendum includes a liquidated damages clause specifying damages for
28
,...
1
2
4
5
6
7
B
9
10
11
J
.
<
12
13
15
16
....
0
On or about June 18, 2014 Defendant Karalis attempted to resign from his
17
18
ln oonduct ln direcl violation of his obligations and Pregame LLC's rights under the Agreement
Those violations have been ongoing and continuous and have caused substantial damage to
Pregame LLC.
ccntent which Karafts is obrtgated to provide to Pregame LLC lor disbibution is being provided to
a oompetitor.
in addition, the
on
going
harm as such information, ccnfidential and otherwise, cannot be rebieved once made pub&c by
Kara&s.
10.
14
.,
c
9.
SUBSCRIBED
SWORN to
before me this '60
day of
June, 2014 .
19
20
21
22
23
24
25
26
27
28
'
EXHIBIT "3"
EXHIBIT "3"
Jeff Galliher
\
From:
\ _o:
Subject:
Attachments:
Mr. Prokopius:
Attached please find my correspondence of yesterday's date along with other documents related to this case.
Regards,
AT
LAW
ThiS message and any alfactm'lents are intondod only for the u&e of lhe individu('ll or cn!rty lo whtch they arc: addrossod If the reader of lhis message or llfl
attadlment is not tho intended rcclpJenl or tho t?mploycc or agcnl responsible for C1C!Jivmmo lf)c mossago or allachrncnllo thC!' mJended rec1pient you are horeb:;
notified thai any dissemination. dislnbutiOll or copylll[J of lhts mes511ge or any
15 r.trrcfly prohtbtlcd. !I you hAVQ roccived lhtS communicalion tn error,
may be privrlegcd, is mtendod only for
please notiiy us tmmecliatoly by replying lo the sender. The infonnntmn mmsmtlfad m thts mcss<Jge <1nd any
the personal and confidential uso of the lntondad recirucnts. and 1s covered hy !he F.:cr:lronic Cornululllcations Pnv<lcy 1\ct, 18 U.S.C. 25102521.
Jeff Galliher
r;rom:.
0
!!RI:
Subject:
Your message
To: Alex Gomez
Subject Pregame LLC v. Karalis
Sent Friday, August 29, 2014 1:54:32 PM (UTC-08:00) PacifiC nme (US & Canada)
was read on Friday, August 29, 2014 2:42:32 PM (UTC-08:00) Pacific nme (US & Canada).
EXHIBIT "4"
EXHIBIT "4"
Page l oil
I'll
Regiomil3ustice Genter
iT?:
..:d
.: ' -
..
las Veuas Ju,.;tke Court
------'
E-Service List for Case
Contacts
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0)11tact No-.
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to Case
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ContKt EtMR
Uml!rdolaOder.IWIM\."HpeW.IXI!'II Denned
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afib'9S6dei4EttgiS{:I!Mr.Qlm
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msrnv#wm!blilwm COlO
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https://wiznet. wiznet.com/clarknv/ServiceContactFrameSubmit.do?caseid=412ll73
9/22/2014
EXHIBIT "5"
(j.N!>\
\_
EXHIBIT "5"
Jeff Galliher
Jeff Galliher Ugalliher@dennettwinspear.com]
Thursday, September 04, 2014 4:39PM
'generai@PandBLawyers.com'
Pregame v. Karalls
14-09-04 Prokoplus.pdf
o:
Subject:
Attachments:
Mr. Prokopius:
AT
LAW
This
and any 31l:lchmonls am intendod only for ttm
of the 1r.rl1v1dua! 01 entity to wtlich they are atJdrcsscd. If the reader of tilts message or an
attachmenl is not 1he intended recipient or tho omployoe or agent 1esponsilliC for dehvering lhe messnge or atlachment to the lntended rcclpleill you
hereby
nolifted that any disseminahon, dlstribulion or cepyin9 of ltlis m!ssage or <Hly nttachmenlls strictly prohibiloel. If you have rcceiveclllus communica1ion in error.
please notify us immediately by replying to tne sender. The inlormatlon ttansmitted 1n this message and any a!tachments may be
is intended only for
tho personal and confidential use or the intended recipients, and is covered by lhe Electronic Communications Privacy Act 18 U.S.C 25102521
Jeff Galliher
(!"
,; .rom:
l>ubject:
Your message
To: Alex Gomez
Subject: Pregame v. Karalis
Sent: Thursday, September 04,2014 4:39:18 PM (UTC-oa:OO) Pacific Time (US & Canada)
was read on Thursday, September 04, 2014 4:50:21 PM (UTC-08:00) Pacific Time (US & Canada).
ATTORNEYS
AT
LAW
Jqalliher@dennettwmspeet.egm
September4, 2014
JLG:ta
3301
ht1ps1ftwiuer.comiVcga,;Runncr?original_rcfcrer=hnp://""\'W,lhcphiL.
Q,
Vegas Runner
@VegasRunner
Pro Sports BeHor in INegas..Festured ort
Tweets
eJ
by Vapas. RUMOf
. . David Pa)'nc Purdum @DavidPurdum 26rn
+.
/Oy26VR #Damage
t.'l
Vtih'lo summary
ptUn)ll10dlalher.com
...
t.'l- 5
...
lEI
-.. ""'"@ph.l!Jyyodfplhor
"""""'
J.i\
PhlllyGodfathor
40m
CFB Spons Betting Preview: AriZona @ UTSA thephiltygodfather.com
tart1des--weba ..
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t."1.
-k
Vtaw convets.ali0.-'1
!of!
9/4/20143:11 PM
i)-Home
#Fake to $Omcthing...
#Discover
NoOficaOons
https:!ltwiner.comNe1:a.sRunner?orig.inul_refcrcr=http://www.thcphiL.
.!, Me
Q
Search Twitter
+. Reply
Retweet
Favorite
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+. Reply
Retweet
Vegas Runner
Favorite More
.2.
Follow
@VegasRunner
Favorite
More
FAVORfTES
2
2:09 PM- 1 Sep 2014
Iii
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91412014 J:IO PM
EXHIBIT "6"
EXHIBIT "6"
Page I of I
Skip to Main Contentt.oaool Mv Acc:ount Searc:h Menu New D!Slrid C1\'iVCrimmal SearCh Ref1ne
Search Close
Location
REGISTER OF ACTIONS
Cs No. A-14-703627-C
Pregame LLC, Plalntlff{s) va. John Karatls, Defendant(e)
Case
other Contract
PARTY lNFOR.\fATIOS
Counter
Karalls, John
L&ad Attorneys
Donn w Prokoptu:s
RelfJined
702-4 74-0SOO(W)
Pregame LLC
Jeffruy L. Galllhor
Claimant
Counter
Retained
702-24:>5282(W)
Def&ndant
DeFendant
Karalls, John
Donn
w Prokoplus
Retainftd
702-474-0SOO(W)
PlalntJfJ
Pregame LLC
Jeffrey L. Galliher
Retained
702-243-5282(W)
EVENTS & 01\DtRS OF TH COURT
0911112014 Motion for Preliminary Injunction (10:00 AM) (Judicial Officer Kosach, Steven)
Plelntitra Motion for PreHminary Injunction
Minutes
0911112014 10:00 AM
Also present Randall Busack, Representative for Plsintifl
Pregame lLC; Estela Sandoval, Privale Investigator PJ the
CouJts request. Mr. Galliher detailed the steps \aken to pro-.ide
proper service in this case as fOllows: As to the- serving of the
Sui'T\ll10N. and Complaint and lhe Temporary Restraining Order,
Mr Karalis was served by Esteta 'Narren, e Private Investigator,
on Augu$t 16, 2014, with proof of the serw:e documentea in a
video taken by Ms. Warren and 1n a signed affidavit
Addltionafly, Mr. ProkoPius made an appearance in this ca.5e,
and was SUbsequanUy emailed a copy of ltle Summons and
Complaint the Temporary Restraining Order, and lhe Motion for
Preliminary Injunction, wttn Mr. Galliher receMng a
mwiPt
for hls email from PandBL.awyets.com. Mr. Galfiher also noted
he sent a ctlpy oi the Summons and COmpfsinL tne TRO,
and lh& Motion for Prefiminary Injunction to Mr. Prckopius via
United States Mail. Mr. Ga!riher presented his email aiDng wilh
the read receip1 to the Court documents mai1Ced as. en exhibit
{see wol'kStleet). COURT accePted Mr. Gamhers
rvpresentaffcns regarding service and incfa1ed lha1 Mr. Ganiher
proceed Wilh lhe inslanl Motion. Mr. Gelliher 8J9U8(I in
support of the Motion, stating that Mr. Karalis was provkling his
t.ervices to a competing company while his o:mtrad wilh
Ptegame LLC was still In effect. Furthermore, Mr. Kantlis
changed lhe pssswon:lto Pregame LLC's Twitter handle, end
continued to have sole and exdusive control over jt, despite it
being the elCC!uslve lntellecl.ual property of Pregame LLC. As
part of the
Injunction, Mr. Gaffiher requested Mr.
Karalis be ordered to
Pregame LLC wilh the password
to Pregame LLC's Twitter account COURT ORDERED Motion
GRANTED; Oefendanl John Karalis IS hereby ORDERED to
provide the password for Pregame LLCs Twitter account to
Pregsme Ll.C. Mr. Gallihe-r to prepare the Order.
Parties Present
EXHIBIT "7"
EXHIBIT "7"
Page I of I
Served
Yes
Yes
Yes
Yes
oatelJ!me OJ!!!ned
2014-09.()3 11:55:53.0
2014-0629 13:57:49.0 [detallsJ
[ Not Oll!lned l
ISst!lls]
[ Not Oll!lned l
[de!;!lls]
EJ
hrtps://wiznet. wiznet.com/clarknv/NotificationServedSubmit.do?username=dennettwinspe...
9/22120 14
EXHIBIT "8"
EXHIBIT "8"
1
2
3
4
5
6
7
DISTRICT COURT
PREGAME LLC,
10
"
Plaintiff,
11
vs.
12
JOHN KARAUS,
Case No:
Dept. No:
13
Defendant.
14
m
>
w
15
bl a:
16
11- z
z
1&1
17
20
2.
3.
4.
27
26
That on August 16, 2014 I served defendant John Karalls wHh a Summons,
Complaint and Order Extending Temporary Restraining Order in the fonn attached hereto.
5.
25
26
Affiant Is over the age of 18 years and can testify to the matters herein of her own
23
24
That on or about August 15, 2014 ElHe Investigations was retained by counsel for
the Plaintiff in this action to effectuate service upon the Defendant after a preVious service
21
22
license
number673.
16
19
That if called upon to testify under oath I could and would testify to the foregoing
Iff
Iff
6.
2
3
Este!a Sandoval
Nevada Private Investigator #873
d.v J. 4W- - - - - - - - - - C
8
9
10
11
<
>
<
>
1- w
i 1- z
w
z 0
z >
w>
<
<
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Electronically Filed
08/1512014 01:40:16 PM
2
3
4
5
6
7
DISTRICT COURT
PREGAME LLC,
10
Plaintiff,
11
vs.
<
12
JOHN KARALIS,
..
13
Defendant.
14
>
... w
... z
Ill
Ill ..
<
15
16
17
18
19
20
COMES NOW, The Court, having conducted a status Check In the above-rafarancad
matter and, good cause appearing, hereby extends the TemporefY Restraining Order lssude by
the court on August 1, 2014 for a period of 15 days from the cunrant date of explraUon
as
follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED thai Plaintiff PREGAME LLC's
Ex-Parte MoUon for Temporary Restraining Order is EXTENDED unbl further Order of the Court.
:
23
24
25
26
ornolaterlhan
Ququst
ZOitf.
Is prohibited from providing content, as that term is defined in the Content Services Agreement
between the parties, to any other enllty including, but not limited to, www.PhillyGodfathar.com or
any other compe6tor of PREGAME LLC, or otherwise engaging in conduct whiCh competes with
the nonnal business of PREGAME LLC until further Order of the Court, or no later than
21
28
f!.wrut.,.t. 2B
2() IL\- .
1
2
3
4
7
8
9
10
11
12
<
13
14
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15
Ill ..
16
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Restraining Order shall take effect immediately upon the filing of this Order, and its terms shaft
be enforced under further Order of this Court.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the security posted by
Plaintiff PREGAME LLC in the amount of ONE THOUSAND DOLLARS ($1,000.00) In
accordance with NRCP 65 (c) as security for such costs and damages as may be incurred or
suffered by any party who is found to have been wrongfully enjoined or restrained In this action
shall remain posted with the court.
DATED this
14..(-k
day of
at_..:;._..-::;.._
Submitted by;
21
24
25
lt\ 2.0/cf-.
20
23
U pf.. .
Is prohlblled from disclosing any confidential or non-public information related to Pregame LLC
18
22
17
19
{ly
"".-=e""sa"'".---Nevada
3301 N.
alo Drive, Suite 195
Las Vegas, Navada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
26
27
28
,.or.
OFFICIAL RECEIPT
District Court Clerk of the Court 200 Lewis Ave, 3rd Floor Las Vegas, NV 89101
R8cefpt No.
\ ;game.com
2014-92168-CCCI.K
Tmnsael!on Dale
08/1112014
I De8Cd#U
Amount P81d
SUBTOTAL
PAYMENT TOTAL
Cheek (Reftl8934) Tendered
TOial Tendered
Change
0811112014
02:46PM
Cashier
Stat!an AIKO
OFFICIAl RECEIPT
Audit
34416997
. _ I_ _
EXHIBIT "9"
EXHIBIT "9"
Jeff Galliher
f .:rom:
Sent:
To:
Subject:
Attachments:
Mr. Prokopius:
Please see my attached correspondence and a file-stamped copy of the court's Preliminary Injunction entered by Judge
Earley today,
Regards,
l \/1/INSPEAR
AT'T"DRNE:YS
AT
L.AW
Th1s message and any atlachmenls are- intended only for the usc or lho indiYtdual or r.m!lly fo which tney ore nddresscd. If the reader of this message or an
attachment is T\01 the intended reciptem or the employee or agont responsible for do!lv011ng the message or anachment to the intended recipient you ara hereby
notified that any dissemination, distribution or copying of this message or any attachmelil is striclly prohibited. If you have received. this OJmmunicalion in error.
please notify U5 immediately by replying to the sender. The information transmitted in this message arKJ any atlachments may be privilegetl. is intended only for
the persona! and connctentfal use of !he intended recipients, and is covered by ttle Electronic Comrnunicauons Privacy AC1. 16 U.S.C. 2510252"1
ATTORNEYS
AT
LAW
RII:PL.'I'
Tel!
JLG:ta
Jeff Galliher
e,;.! rrom:
'
Attachments:
Importance:
High
Sent:
To:
Subject:
AT
'-AW
Ttus message nnd any atlachmenls are uitertded only for the use of the lndivit.ltJal or enlrty to which !hoy nrc addressed. If the reader of this mossage or an
aflachment Is not tho Intended rec:iplanl or U1a employeo or ilgenf responsible for delivering lhe mossogo or attachment to the Ultendcd tecipienl you are hereby
notined thai any dlssomioation. distnbution or copying of lhls message or any attachrnont is strictly prohibited. If you ha'w'o roc:elved !his communication in error,
plaa&e noti1y '-lS lmmodiate!y by roplyfng lo the sendor. The infonnation tronsmincd in this message and any atlachmcn!s moy be privilegeD, is ifllenoed only for
the personal and confidential use of the Intended redplenls. and is covered by the Electronic: Communications Pri'w'acy Ad., 18 U.S.C. 25102521.
ATTORNEYS
AT
LAW
jgalliher@dennelhv;nspear.com
September 17,2014
(!"
JLG:ta
EXHIBIT "11"
EXHIBIT "11"
Jeff Galliher
From:
Sent:
To:
Subject:
I am in receipt of your letter. I have not even had the chance to meet with my client to get that information. He will be
in the morning. I will correspond at that time.
Sincerely,
Donn W. Prokopius, Esq.
From: Jeff Galliher [rnai!to:jga!liher@dennettwinsoear.com]
AT
LAW
This message 3nd any at1achn1cnts are intended only for the use of tho indiYtdual or en!rty to v;Mich IIley ilfO aclllrossod. II tho reader of this message or an
attachment is nol the Intended recipient or tM employee or ilgent rcsponstble lor dt:!ltwnng Uw mossagc or atlac:hmcnllo !he intended rcc1pimt you .-.rc hereby
notified that any dlssomiJlat!on. distribution or r.opyulg of this messago or
att<'lchmer.t 1s strrdly
U you h;lva rccc!VIXI lh1S
111 error,
please notity us Immediately by replying to the sender. The infonnatlon twnsnHIIed in tillS message and any attac/nnenls may Oo pmileged, is intended only for
the per5onal an(J conficlential U$e of the lntendeCJ recipients. ond Is covered by the E/oclfonlc Communications Privacy Act. 16 U.S.C. 2510-2521
EXHIBIT "12"
EXHIBIT "12"
...
.. - - .
._,
.:
,_'
john Karalis
BOSS Sapphire Cove Avenue
Las Vegas, Nevada 89117
NIXIE
8!11172030-lN
RETURN TO SENDER
UNCLAIMED
UNABLE TO P'ORWARD
RETURN TO SENDER
08/14/14
'"'"::'...
... _.....
fJ
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:
I'
A Slgnaturo
X
B. AeC91ved by( Prlntod Name}
lc.
DAgont
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Dnlo of DD!IV(lry
3. Service Typo
Mall
0 Aegistemd
0 lnsun!d Mafi
0 Express Mnil
4, RBStrletedDell"""f?(ExtmFse)
2. Artfcte Number
(Tr:ansler from ssMce ta
0 y03
.'.,-.
-,
111111111
1111111111m
TO:
John Karalis
4575 Dean
Drive
Unit 3208
Las Vegas, Nevada 09103
8!11032043-l.N
UTURN TO SEN'IJER
INSUFFICIENT ADDRESS
UNABLE TO FORWARD
RETURN TO SENDER
OS/01/1'1
.Jc::l-}1\l
KA R fll-.1 S
3 ;)..0 'f?
illS V.1,1[.<;"
0Agent
0 Addressee
6.
by (Printed Name}
D. Is dofivory
diKcrent from ttem 1? 0 Yes
U YES, enter dolivery
below:
0 No
!Vv' Efll() 3
3. Setvtco TYPo
la:'c.rtmed Mnll
0 EJ<press Mal
0 Registered
0 Insured Mall
oc.o.o.
2. Article Number
(TI'Bnster from S8f11/co label}
C. Date of Delivery
ue.
1-/5'15 DEIW
{LN 1/
A. Signature
0 Yes
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EXHIBIT "13"
EXHIBIT "13"
GianniTheGreek
@Greek_Gambler
bttps://rwiner.com:
TWEETS
FOLLOWING
FOLLOWERS
100
602
.!l. Fellow
Tweets
More v
GiannrTh-sGmek @Greek_Gamblor 4m
...
Who to follow
Rcfre:;h V1ew all
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II
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)(
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Follow
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Followed b ...
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#TrwJLY
f:;J PrtltnOled by Wttmot 91'0$ Pict\Jn;n
Goodell
Rachel Nichols
l of I
9/1912014 1:22 PM
https:/ltwiner.coml
i)-Home
Notiftcalions
#Discover
.!.. Me
greek_gambler
Everything
f4r.
gre'e
Top/ All
People
Photos
Videos
Expand
News
nmelines
Advanced Search
All people
+.Reply
GlanniTheGreek @Greek_Gambler 3h
LISTEN LIVE NOW on @FoxSportsRadio Nation
I'm breaking down #NFL #MNF and more from #1
@North2North @AndyFurmanFSR
Expand
+.Reply
Everywhere
Expand
Near you
Trends
0.
RSS'-!itS TOr
+. Reply
Change
#TheBestOIMe
Expand
+. Reply
Wilson
Fales
#iHeartRadio
YALL
The Maze Runner
+. Reply
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Southampton
Peyton
.2. Follow
I of I
Expand
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!!;! Promoted
X
Paul George@ @Yg_Trece
Followed by Nick Ragsdale a ...
.!. Follow
+. Reply
912212014 8:49AM
EXHIBIT "14"
EXHIBIT "14"
https://twitter.comlsearch?q=greek_7777 &src=typd
f"" .....
9Home
Vegas Runner
@G...,k.,.7777
0.
S'<l.:m:h Twitter
Diocover
T\'\IEETS
PHOTOSMDEOS
FOLLOWING
50.7K
413
100
Tweets
faJ
FAVOR
33.9K
10
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.._.
.!. Follow
*' ...
...,_
t.'l
&
VIeW deb!Hs
I of I
nnt
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9/22/2014 I :55 PM
EXHIBIT "15"
EXHIBIT "15"
ATTORNEYS
AT
LAW
com
as ...:. -.
\.AS
JLG:ta
... U.PI::-"R.CQ...
TCI..: 71:12..939,1100
r ... x: 702.839,1 1 13
Jeff Galliher
rFrom:
Sent:
To:
Cc:
Subject:
> I have spoken with Mr. Karalis and he is currently attempting to re establish (if possible)
the account and will provide all passwords to me and I will forward the same to you by this
afternoon.
>
EXHIBIT "16"
EXHIBIT "16"
1
2
3
DISTRICT COURT
CLARKCOUNTY,NEVADA
8
9
PREGAME LLC,
Plaintiff,
10
11
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1- z
Ill
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0
0
12
vs.
JOHN KARALIS,
13
Defendant.
14
15
16
17
Case No:
Dept. No:
1.
Affiant is an attorney duly licensed in the State of Nevada and employed by the
2.
Affiant is an AV/Preeminent rated attorney in the area of Litigation and has been
18
practicing for more than 12 years, including as lead counsel in several complex commercial
19
litigation cases.
20
3.
21
22
Affiant Is over the age of 18 years and can testify to the matters herein of his own
4.
That as a direct result of Defendant John Karalis' failure to comply with court
23
orders in this case it has been necessary for me to expend in excess of ten hours of my time,
24
25
26
27
28
5.
That the fees incurred by Plaintiff Pregame as a result of Karalis' failure to comply
with the responsibilities of a litigant are reasonable and necessary under the circumstances.
6.
That if called upon to do so I can and will testify to the same under oath in any
1
2
That I hereby swear and attest that the foregoing is true under the penaHy of
8.
3
4
5
6
7
8
9
10
11
<
12
13
<
14
tt-
Ill
>
15
16
z
z a
17
18
Ill
<
19
20
21
22
23
24
25
26
27
28
1
2
3
4
5
Electronically Filed
10106/2014 01:38:50 PM
6
DISTRICT COURT
7
CLARK COUNTY, NEVADA
8
9
10
11
12
.J
13
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>
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11- z
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0
14
vs.
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
Defendant.
15
16
17
18
19
20
COMES NOW, Plaintiff PREGAME LLC and submits the following Opposition to
Defendants Motion for various relief filed on September 19, 2014. This opposition is based upon
the points and authorities contained herein, the pleadings and papers on file in this case and
such argument as may be entertained by the Court at the time of hearing.
21
22
23
24
25
26
27
28
I'
JEFFREY t GALLI R, ESQ.
Nevada Ba No. 008078
3301 N. Bu alo Drive, Suite 195
Las Vegas, Nevada 89129
Attorneys for Plaintiff Pregame LLC
1
2
3
4
5
6
7
8
9
10
11
3
12
.J
13
14
m
>
15
1- w
1- z
z
z
16
17
18
19
20
21
22
23
24
25
26
27
Relevant Facts
Defendant Karalis admits that he entered into a contractual relationship with Plaintiff
Pregame LLC.
Page 3, lines 8-12) He further acknowledges the he granted Pregame an "exclusive license that
allows PREGAME to 'publish, display, reformat and distribute' the information JOHN provides."
contractual relationship on or about June 18, 2014." (!Q,, at Page 3,1ines 17-18).
According to his motion, Mr. Karalis retained counsel "on or about August 19, 2014" (!Q,,
Page 5 at Line 13-14, filed on 9/19/14).
On August 27th, 2014 Donn Prokopius, Esq. entered his appearance on behalf of
defendant John Karalis. (Exhibit "1 ")
On August 29th, 2014 the court issued its Order Extending Temporary Restraining Order
and Setting Hearing on Motion for Preliminary Injunction. (Exhibit "2")
On August 29, 2014, after receiving Mr. Prokopius' Notice of Appearance by mail,
counsel for the Plaintiff served Mr. Prokopius with the following documents by electronic and
28
1
2
3
4
5
6
7
8
9
10
11
3:
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"
'
"
11- z
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12
13
14
15
2)
3)
4)
5)
Order Extending Temporary Restraining Order issued August 28, 2014, including the
7)
16
17
18
19
20
21
22
23
24
25
26
27
28
1
2
3
4
5
6
7
8
9
10
11
(
12
13
14
m
1- w
1- z
ld
z c
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ld
0
15
16
17
18
District Court, 116 Nev. 650, 6 P.3d 982 (2000), ("Thus, to avoid waiver of a lack of jurisdiction
over the person, insufficiency of process, or insufficiency of service of process, the defendant
should raise its defense either in an answer or pre-answer motion")
Finally, Mr. Karalis consented to the jurisdiction of this court pursuant to an express
proVision of the Content Services Agreement on file in this case.
Specifically, paragraph 32
proVides, in pertinent part that "[a]ll actions and proceedings pertaining to this Agreement will be
filed and litigated exclusively in any state of federal court located on Clark County, Nevada.
Pregame and Content Provider (Karalis) expressly consent to the jurisdiction of these
courts .. ."
Personal jurisdiction over Mr. Karalis has been established through 1) the court's findings
after an eVidentiary hearing; 2) by the waiver inherent in the filing of an answer to the complaint
which fails to raise the affirmative defenses of lack of personal jurisdiction and insufficiency of
serVice, and: 3) by express consent pursuant to the clear language of a contract at issue.
19
20
21
22
23
24
25
26
27
28
1
copy of the Motion for Preliminary Injunction and the order setting hearing on the same for
2
3
Further, NRCP 5(b)(2)(D) provides, in pertinent part, that notice may be provided by
4
"[d]elivering a copy by electronic means if the attorney or the party served has consented to
5
service by electronic means. Service by electronic means is complete on transmission". By
registering with the court's a-filing service defense counsel consented to be served through that
7
system. Mr. Prokopius' office was electronically served with the Order Extending Temporary
8
9
Restraining Order and Selling Hearing on Motion for Preliminary Injunction by the courfs own EService system. (Exhibit "5")
10
11
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"
"
%
Accordingly, it cannot reasonably be disputed that no fewer than two separate notices of
the September 11, 2014 hearing were provided to defense counsel.
12
13
The Requests for TRO and Preliminary Injunction were supported by the affidavit of the
Managing Member of Plaintiff Pregame, LLC
14
Defendant's motion claims that the motion for TRO and Preliminary Injunction was not
15
adequately supported by an affidavit. Specifically, Karalis' motion includes the bizarre statement
16
that:
17
18
19
20
21
22
23
24
25
26
27
28
1
In fact, Plaintiff's motion was supported by the affidavit of "Randall J. Busack" and not
2
"RJ Bell" as inexplicably stated by Defendant. (Exhibit "7" ) The affidavit clearly identified Mr.
3
Busack as the Managing Member of Pregame LLC, Plaintiff herein. The affidavit further
4
explained the business that plaintiff is engaged in, the existence of a contractual relationship
5
between the Plaintiff and Defendant Karalis, the material terms of that contractual relationship,
6
Mr. Karalls' specific act of breaching the contract, that the Plaintiff suffers substantial and
7
irreparable damage as a result of the breach and the nature of that irreparable damage.
8
Defendant's feigned ignorance as to the identity of the affiant and his relationship to this case is
9
10
11
(
"
12
13
14
w
>
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1- z
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Ill .
0
tt
15
16
17
18
19
indicative of the games he continues to play all while openly defying the authority of this court.
Defendant's reliance on Webster v. Steinberg for the notion that an injunctive order which
does not include detailed factual findings is void is misplaced. In 1990 the Nevada Supreme
Court loosened the strict requirements of Webster in favor of a policy that provides that, as long
as the reasons for the imposition of an injunctive order are otherwise readily apparent elsewhere
in the record, then nullification is not appropriate. Las Veoas Novelty, inc. v. Fernandez, 106
Nev. 113,118, 787 P.2d 772, 775 (1990). Here, the court has been provided with the underlying
facts on multiple occasions including an evidentiary hearing on September 11, 2014. Also, the
first draft order submitted by Plaintiff's counsel for the original TRO included findings of fact and
conclusions of law that, while the court was made aware of them, were ultimately eschewed by
the court in favor of a more succinct order.
20
21
22
The court heard and accepted Plaintiff's offer of proof at the hearing on September 11,
2014
At the hearing on Preliminary Injunction on September 11, 2014- at which defendant
23
failed to appear despite Indisputable proof that his counsel of record had been twice provided
24
25
26
27
with notice - Plaintiff made an offer of proof to the court regarding each of the essential elements
of Plaintiff's request for a Preliminary Injunction and such offer was accepted by Judge Kosach
before he issued the Preliminary Injunction. (Exhibit "8") Plaintiff expended considerable time
and expense to appear at that hearing, including incurring fees to have a private Investigator
28
1
2
3
4
5
appear as a witness. Contrarily, Defendant has offered no plausible reason why he failed to
appear. The indisputable evidence is that his counsel was provided with multiple notices of the
hearing. in addition, the hearing date was noted on the court docket which is available on-line.
Once again, the defendant's conduct is consistent with his desire to ignore this situation and just
hope that it goes away.
6
7
8
Defendant's, conduct both prior to and subsequent to the issue of the preliminary
injunction. proves the need for the Injunction
Based upon the factual admissions made in the instant motion that a contractual
9
10
11
:r
12
...
13
14
>
11- z
I&J
z
z
15
16
17
18
...
...
19
20
21
22
23
24
25
26
27
relationship existed between the parties and that the defendant "terminated the parties'
contractual relationship on or about June 18, 2014" defendant's claim that he would have
defeated the motion for TRO is baseless. In fact, despite the imposition of the injunctive orders
in this case Defendant Karalis' still engaged in conduct which has already irreparably harmed
Pregame LLC.
Only after yet another letter from Plaintiffs counsel (Exhibit "1 0") did the
defendant finally provided the password for the Twitter account "@greek_7777" later that day.
(Exhibit "11")
However,
at the
"@greek_gambler."
same lime
Karalis
created
third
continues to distribute content in violation of the Preliminary Injunction including a tweet that he
was appearing on Fox Sports Radio on Monday, September 22, 2014 at 8:23 am. and "breaking
down #NFL #MNF and more" and multiple other examples. (Exhibit "12")
That conduct is in
direct violation of the prohibition contained in the TRO and the Preliminary Injunction against
"providing content, as that term is defined in the Content Services Agreement between the
parties, to any other entity." Indeed, despite the imposition of this court's Preliminary Injunction,
28
2
3
4
In support of his argument that the circumstances in this case "unquestionably constitute
5
surprise, mistake an( sic) excusable neglect as contemplated by NRCP 60{b)" Defendant claims
6
in the instant motion, filed on September 19th, that "[u]p to now he has not been represented by
7
counsel." However, that assertion is directly contradicted by the statement in the same pleading
8
that he actually retained counsel a month earlier, "on or about August 19, 2014."
9
Defendant's Motion to Re-Hear/Reconsider of Preliminary Injunction at, Page 5 at Line 13-14).
10
Clearly, the defendant is seeking to mislead the court with respect to how long he has enjoyed
11
"
>
1- w
1- z
Iii
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z
Iii
D
15
Specifically, for a period of more than 30 days, in a case where a TRO had been issued and
16
17
Plaintiffs counsel had sent no fewer than five letters to defense counsel there had been
communications from defense counsel. When some communication was finally forthcoming, it
18
came in the form of a 4 sentence e-mail with absolutely no substantive content. (Exhibit "14")
19
Meanwhile. Karalis continued to violate the express provisions of his contract, the TRO and
20
21
22
23
24
25
26
27
case was established in the court's system, including the filing of a peremptory challenge by
28
1
2
3
4
5
6
7
8
9
10
11
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"
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11.1
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z
11.1
"
"
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Pregame, Pregame's counsel originally arranged to have Karalis served by First Legal
Investigations. However it was ultimately determined that Karalis was on a vacation to the
Bahamas. (Exhibit "16") Once it was confirmed that he had returned to the jurisdiction First
Legal made 8 unsuccessful attempts to serve him at two different addresses between August 6th
and August 1Oth. (Exhibit "17") Based upon the futility of those efforts Pregame's counsel was
forced to hire a licensed private investigation firm to "stake out" both locations. Finally, on
August 16th Mr. Karalis was located outside his ex-wife's home and personally served. (Exhibit
"18")
This has been a common tactic of the Defendant throughout this dispute: Simply ignore
the situation and conduct his business as usual. He ignored a cease and desist letter which was
served pursuant to the terms of the written agreement of the parties (Exhibit"") via certified mail
on June 30, 2014 (even though it was sent to his current address AND his former address where
he was ultimately personally served). His counsel has ignored communications from Plaintifrs
counsel. Karalis has ignored the court's Temporary Restraining Order and Preliminary Injunction
and continues to until this day. (Exhibits "12" and "13")
Attorney's Fees
Defendant's request for attorney's fees is nothing short of madness. Defendant has done
absolutely NOTHING in this case except for ignore it and then, after finally realizing that Plaintiff
intends to enforce his contractual obligations, he files the instant motion asking for "do-overs.
Meanwhile, Plaintiff has been forced to expend thousands of dollars In attorney's fees and costs
in an effort to enforce ifs clear contractual rights, including preparation and attendance at a
Preliminary Injunction hearing at which Defendant failed to appear.
Defendant's failure to
respond to both the Plaintiff and the Court in any meaningful way is the only reason this case is
where it is and is the reason why Plaintiff has had to expend many more resources than should
have been necessary.
Under the contract Plaintiff is entitled to recover his attorney's fees for enforcing the
contract. Defendant's clear pattern of delay, defiance and obfuscation in this case warrants an
28
1
2
3
4
award of reasonable attorney's fees to PLAINTIFF for the unnecessary and ongoing work
created by Defendant's documented and willful failure to comply with his responsibilities in this
case. Accordingly, Plaintiff requests an award of its reasonable attorney's fees in dealing with
Defendant's intransigence. (Exhibit "19")
CONCLUSION
7
B
9
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12
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14
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D
15
16
17
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19
20
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22
23
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25
26
27
The conduct of Mr. Karalis both before and after retaining counsel has been consistent:
He has completely ignored the rights of the Plaintiff, he has ignored the prohibitions placed upon
him by the court in the form of a Temporary Restraining Order and subsequent Preliminary
Injunction, he has ignored orders setting hearings, he has ignored demands from Plaintiffs
counsel that he comply with the court's orders, even to this day he continues to ignore the
authority of this court and engage in conduct which is directly contrary to Its orders.
Taken as a whole the available information in this case thus far suggests that Mr. Karalis
has simply not taken this situation seriously. Beginning with his stated belief that he can simply
unilaterally "terminate" a written contract at will, his counsel's disregard for papers served upon
him, his willful contempt of court orders and continuing right through the ongoing conduct in
direct contradiction to not only his contractual obligations to the Plaintiff, but also to the duly
issued orders of this court, indicates that Mr. Karalis believes he can do whatever he feels like
doing, regardless of his legal obligations. Nothing in his motion rises to the level of "excusable"
neglect. If it is a "surprise" it is only because he has failed to pay attention. His only "mistake"
has been to underestimate Plaintiffs willingness to hold him to his obligations.
Ill
Ill
Ill
Ill
Ill
Ill
Ill
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Defendant Karalis should not be rewarded for this conduct by allowing him "do-overs".
Likewise, Plaintiff, who has diligently pursued this case should not be punished by forcing lito do
again what it has already done. The motion should be denied.
Respectfully submitted this 6th day of October, 2014.
5
6
7
JEFFREY . GAL
Nevada Ba
. 008078
3301 N. Buff o Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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CERTIFICATE OF SERVICE
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Pursuant to NRCP 5(b) and EDCR 7.26, I certify that on this dale, I served the foregoing
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Facsimile
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Electronic Service
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DATED this
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EXHIBIT "1"
EXHIBIT "1"
000001
Electronically Filed
08/27/2014 11:11:48 AM
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NOT
PROKOPIUS & BEASLEY
DONN W. PROKOPIUS, ESQ.
Nevada Bor No: 6460
JEREMY R. BEASLEY, ESQ.
Nevada BarNo.: 12176
931 South Third Street
Las Vegas, Nevada 89101
(702) 474-0500 I Fax (702) 951-8022
general@pandblawyers.com
Attorney for Defendant, JOHN KARALIS
DISTRICT COURT
PREGAME LLC,
1I
("'
I0
Plaintiff,
12
vs.
13
JOHN KARAUS,
14
...
Defendant.
15
NOTICE OF APPEARANCE
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NOTICE IS HEREBY GIVEN, that DONN W. PROKOPIUS, ESQ., of the law finn of
PROKOPIUS & BEASLEY, enters his appearance on behalf of the Defendant, JOHN
KARALIS, in the above-entitled action.
DATED
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27
("'
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+
002
CERTIFICATE OF MAILING
2
3
4
day of August, 2014, I duly deposited for mailing, first class mail, postage prepaid thereon, in th
United States Mail at Las Vegas, Nevada, a true and correct copy of the above and foregoin
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!l
PREGAME LLC
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(""
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03
EXHIBIT "2"
EXHIBIT "2"
000004
Electronically Filed
08129/2014 08:36:45 AM
1
2
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4
...
ORO
JEFFREY L GALLIHER, ESQ.
Nevada Bar No. 008078
jgalliher@dennettwfnspear.com
DENNETT WINSPEAR, LLP
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
FacsimDe:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
OF THE COURT
DISTRICT COURT
PREGAME LLC,
10
J
Plaintiff,
11
YS,
12
JOHN KARAUS,
13
..
Defendant.
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MOTION FOR PRELIMINARY INJUNCTION
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2B
COMES NOW, The Court. having conducted a status check In the above-referenced
matter and, good cause appearing, hereby extends the Temporary Restraining Ortler Issued by
on
lA+ tort+,
as
follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
Ex-Parte Motion for Temporary Restraining Ortler is EXTENDED unbl further Ortler of the Court.
or no later than
is prohibited from providing content, as that term is defined in the Content Services Agreement
between the parties, to any other entity including, but not limited to, www.PhlnyGodfather.com or
any other competitor of PREGAME LLC. or otherwise engaging In conduct which competes 1Mth
the normal business of PREGAME LLC until further Ortler of the Court, or no later than
000005
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a
"
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t/; 2/)lf.
wUI be held on
at
1/);{)0
am.
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Navada
o. 0080
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
FacslmUe:
(702) 839-1113
Altomeys for Plaintiff Pregame LLC
000006
EXHIBIT "3"
EXHIBIT "3"
000007
ATTORNEYS
AT
]NCl.UO!NG
lQaHiher@dennettwmspear com
Dear Mr Prokopius :
It is my pleasure to represent Pregame LLC in the above-referenced matter.
am in receipt of your Notice of Appearance on behalf of Mr. Karalis.
Attached please find copies of the following documents related to this case:
Pregame LLC's complaint for breach of contract;
Pregame LLC's motion for temporary restraining order and
preliminary injunction:
Temporary Restraining Order dated August 1, 2014 and
subsequent orders extending the same;
Affidavit of Service of Estela Sandoval;
Pregame LLC's Petition for an Order to Show Cause;
Order to Show Cause.
Despite being personally served with the court's Temporary Restraining Order on
August 16th, 2014 Mr. Karalis has continued to engage in conduct which is in direct
violation of that Order. The court has set a hearing for September 23, 2014 to allow Mr.
Karalis to show cause why he should not be held in contempt for his continued and
blatant violations of the TRO.
TEL: ?0.2.829. 1 l OD
3301
F'A.X: 70:<:.839.11 l 3
000008
Jeffr"eJL. Ga
JLG:!a
LAS \/GAS, NV 99 l 29
000009
Elec:tronically Filed
08/04/2014 11:05:25 AM
..
<
2
3
4
5
6
7
DISTRICT COURT
PREGAME LLC,
10
Plaintiff,
11
vs.
<
12
JOHN KARAUS,
,_
13
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>
11- "z
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11.1
Defendant.
14
as follows:
Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law,
19
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
20
21
Ex-Parte Motion for Temporary Restraining Order is GRANTED as PREGAME LLC has
demonstrated a reasonable probability of success on the merits of its claim for breach of contract
22
23
and lf Defendant Karalis conduct is allowed to continue, such conduct will cause irreparable
harm to PREGAME LLC for which mere compensatory damages is an inadequate remedy,
24
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is prohibited from providing content, as that term is defined in the Content Services Agreement
between the parties, to any other entity including, but not limited to, www.PhillyGodfather.com or
28
000010
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tt-
Ill
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tt
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any other competitor of PREGAME LLC. or otherwise engaging in conduct which competes with
the normal business of PREGAME LLC until further Order of the Court. or no later than
.t
l(p r UJt+ .
($1 ,000.00) in accordance with NRCP 65 (c) as security for such costs and damages as may be
incurred or suffered by any party who is found to have been wrongfully enjoined or restrained in
this action.
DATED this
19
1<$
!J;
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Submitted by:
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JEFFRE
Nevada B r
3301 N. B
Las Vegas,
Telephone:
Facsimile:
(702) 839-1113
2
000011
Electronically Filed
0811512014 01:40:16 PM
'
1
2
3
4
5
DISTRICT COURT
PREGAME LLC,
10
<
11
vs.
12
JOHN KARALIS,
-'
<
>
1- w
1- z
Defendant.
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15
COMES NOW, The Court. having conducted a status check in the above-referenced
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w
Plaintiff,
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matter and, good cause appearing, hereby extends the Temporary Restraining Order issude by
the court on August 1, 2014 for a period of 15 days from the current date of expiration as
follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff PREGAME LLC's
Ex-Parte Motion for Temporary Restraining Order is EXTENDED unlit further Order of the Court,
ornolaterthan
201tf.
2JI-il1, 2b I'+.
000012
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-'
<
11-
'
"z
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tlu
ZA -t 2..1!>14-.
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Ill
is prohibited from utilizing the Twitter handle "@Ve9asRunner" and the Nom de Gambling
15
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Ill
14--*'
day of
at
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Submitted by:.
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2
000013
OFFICIAL RECEIPT
.vor. .
District Court Clerk of the Court 200 Lewis Ave, 3rd Floor Las Vegas, NV 89101
Receipt No.
2014-92166-CCCLK
Transaction Date
08/11/2014
I Oeser\pllon
Amount Paid
A-14-703627 -C
PAYMENTTOTALLI______
1,000.00
1,000.00
0.00
08/1112014
02:45PM
cashier
Slalion AIKO
Audit
34415997
OFFICIAL RECEIPT
000014
Electronically Filed
08/19/2014 08:49:40 AM
ORIGINAL
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DISTRICT COURT
9
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Plaintiff,
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J
<
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>
"<
YS.
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Defendant
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SUMMONS- CIVIL
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NOTICEI YOU HAVE BEEN SUED. THE COURT MAY DECIDE AGAINST YOU WITHOUT
YOUR BEING HEARD UNLESS YOU RESPOND WITHIN 20- DAYS.
READ THE
INFORMATION BELOW:
TO THE DEFENDANT: JOHN KARAUS
A Civil Complaint has been filed by Third-party Plaintiffs against you for the relief set forth
22
In the Complaint:
23
1.
If you intend to defend this lawsuit, within 20 days after this Summons is
24
served on you, exclusive of the day of service, you must do the foRowing:
25
(a)
FPe with the Clerk of this Court, whose address is shown below, a
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000015
'
(b)
2.
3.
4.
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have 45 days after service of this Summons within which to file an Answer
12
>
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If you Intend to seek the advice of an attorney in this matter, you should do
so promptly so that your response may be filed on time.
>
Unless you respond, your default wit! be entered upon application of the
Plaintiffs and failure to so respond wiU result In a judgment of default
Serve a copy of your response upon the attorney whose name and
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Z2
SUbmitted by.
DENNETT WINSPEAR, LlP
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2B
27
By
NevadaBa
3301 N. 8
lo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702} 8391113
AUomey.s fur Plaintiff Pregame LLC
28
000016
AFFIDAVIT OF SERVICE
STATE OF NEVADA
COUNTY OF CLARK
)
) ss
)
Estela Sandoval, being first duly sworn, deposes and says: That Affiant is a
citizen of the United States, over eighteen years of age, employed by Elite Investigations,
Nevada Private Investigator's License Number 873, and not a party to, nor interested in
the proceedings in which this affidavit is made, That Affiant received one (I) copy of the
attached Temporary Restraining Order, Summons and Complaint entitled Pregame LLC
v. John Kara/is, on the 16th of August, 2014. On August 16, 2014, the Affiant personally
served the above referenced documents upon John Karalis at his place of residence
located at 8055 Sapphire Cove Avenue, Las Vegas, Nevada 89117.
Estela Sandoval
'<
State of Nevada
County of Clark
Subscribed and s"!om to before
On
j'knJvpj :'---
000017
Electronically Filed
08/27/2014 11:11:48 AM
1
2
3
4
6
7
PREGAME LLC,
11
Plaintiff,
12
vs.
13
JOHN KARALIS,
14
DISTRICT COURT
CLARK COUNTY, NEVADA
9
I0
... .....
NOT
PROKOPIUS & BEASLEY
DOl\.'N W. PROKOPIUS, ESQ.
Nevada Bar No: 6460
JEREMY R. BEASLEY, ESQ.
Nevada BarNo.: 12176
931 South Third Street
Las Vegas, Nevada 89101
(702) 474-0500 I Fax (702) 951-8022
general@pandblawyers.com
Attorney for Defendant, JOHN KARALIS
Defendant.
15
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NOTICE OF APPEARANCE
NOTICE IS HEREBY GIVEN, that DONN W. PROKOPIUS, ESQ., of the law firm of
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PROKOPIUS & BEASLEY, enters his appearance on behalf of the Defendant, JOHN
KARALIS, in the above-entitled action.
DATED this:lY"'day of August, 2014.
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BY:
W. PROKOP
ESQ.
MY R. BEASLEY, ESQ.
931 South Third Street
Las Vegas, Nevada 89101
(702) 474-0500 I Fax (702) 951-8022
general@pandblawyers.com
Attorney for Defendant
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+
00 01B
CERTIFICATE OF MAILING
2
day of August, 2014, I duly deposited for mailing, first class mail, postage prepaid thereon, in th
United States Mail at Las Vegas, Nevada, a true and correct copy of the above and foregoin
9
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II
PREGAMELLC
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00
19
A- 14-703627- C
I. Party Jnformatioo
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000020
Electronically Filed
07/10/2014 07:26:22AM
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DISTRICT COURT
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Case No:
Dept. No:
A-14- 703627- C
XXIII
vs.
JOHN KARAUS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
COMPLAINT
Defendant.
COMES NOW Plaintiff, PREGAME LLC, a Nevada Limited Liability Company, by
18
and through its attorneys of record of the law firm of DENNETT WINSPEAR, LLP, and
19
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follows:
21
l.
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1.
"Pregame LLC" or "Plaintiff") was a Limited Liability Company duly organized and
26
operating pursuant to the laws of The State of Nevada with its principal place of
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000021
1
2
2.
3.
ROE COMPANIES 1 through 20, are unknown to Plaintiff who therefore sues said
7
8
Defendants by such fictitious names. Plaintiff is informed and believes and thereon
alleges that each of the Defendants designated herein as DOE is responsible in some
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3
<
>-
<
>
manner for the events and happenings referred to and caused damages proximately to
11
Plaintiff as herein alleged, and Plaintiff will ask leave of the Court to amend the
12
Complaint to insert the true names and capacities of DOES 1 through 20, ROE
13
COMPANIES 1 through 20, and ROE CORPORATIONS 1 through 20, when the same
14
....
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15
17
action relates to and arises out of conduct which occurred, in whole or in part, in the
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4.
19
This Court has jurisdiction in this matter and venue is proper because this
II.
20
GENERAL ALLEGATIONS
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5.
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Plaintiff provides sports related content of interest to sports fans and sports bettors.
25
Some of that content is provided free of charge to viewers of the website and other
26
content, designated "premium" content, can only be accessed after paying a fee.
27
Premium content subscription fees are a main source of revenue for Plaintiff's business.
28
2
000022
Plaintiff obtains the content from contracted content providers including Defendant John
Karalis.
6.
On or about June 18, 2012 Pregame LLC entered into a Content Services
4
5
6
The Agreement and the Addendum are attached to hereto as Exhibits "A" and "8",
respectively.
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LLC entered into a Social Network Addendum ("the Addendum") with Defendant Karalis.
Agreement ("the Agreement") with Defendant Karalis, and in or around 2009 Pregame
14
15
7.
years, tenninating in June 2017. (Exhibit "A", Paragraph 9) The Agreement followed a
previous similar contract between the parties which was replaced by the Agreement.
The parties have operated under the cunrent and previous contracts for a period of
several years without incident.
8.
16
license to "publish, display, refonnat and distribute" all sports related content generated
17
by Defendant Karalis, (Exhibit "A', Paragraph 2) as well as the right to bundle such
18
...
19
The Agreement provides that Karalis may not publicly disclose infonnation
20
21
22
related to his relationship with Pregame LLC (Exhibit "A", Paragraph 13), that Karalis will
not undertake any conflicting obligations (Exhibit "A", Paragraph 16), and that Karalis will
23
24
pregame.com (Exhibit "A", Paragraph 18). The Agreement further restricts Kalaris' use
25
26
27
10.
to be the registered
account holder of any Social Site accounts, including Twitter handles, utilized by
28
3
000023
Defendant Karalis in connection with the production of content. Karalis was further
obligated to provide the current usemame and password for all such accounts to Plaintiff
and was prohibited from changing said passwords without Plaintiff's prior written
5
6
The Addendum included a liquidated damages clause specifying damages for each and
every violation of the provisions outlined above. (Exhibit "B", Paragraph 4).
10
11
>
11- z"
Pregame.com without prior written consent of the Plaintiff. (Exhibit "B", Paragraph 3).
.
.
consent. Karalis was also forbidden from referencing any third party competitor to
11.
resign" from his contractual relationship with Pregame LLC. Upon information and
belief Karalis was induced to do so by an offer from a direct competitor to Pregame LLC.
12
13
14
15
Subsequently Karalis has engaged in conduct in direct violation of his obligations and
Pregame LLC's rights under the Agreement. Such violations have been ongoing and
continuous and have caused substantial damage to Pregame LLC.
w
z
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16
Ill.
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(Breach of Contract)
12.
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though said paragraphs were fully set forth and incorporates the same herein by
reference.
13.
A valid and existing contract for was entered into between Plaintiff and
24
Defendants on or about June 18, 2012 in the form of the Agreement and in or around
25
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14.
That Pregame LLC fully performed each and every one of its obligations
4
000024
1
2
3
15.
failing to provide content to Pregame LLC since on or about June 18, 2014 and instead
providing such content to a competitor of Pregame LLC.
4
16.
5
6
7
continuing to use the Nom de Gambling of "Vegas Runner" and referencing competitors
of Pregame LLC through such mediums without prior written consent of the Plaintiff.
9
10
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12
..
13
...
...
seizing control of the user account for the Twitter handle "@VegasRunner, and
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19.
"
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0
(
That it has been necessary for Plaintiff to retain the services of an attorney
e
>
15
IV.
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21.
20
though said paragraphs were fully set forth and incorporates the same herein by
21
reference.
22
22.
23.
24.
23
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tenninate, and otherwise failing to abide by the binding tenns of, the Contracts despite
Plaintiffs full perfonnance of its obligations thereunder.
25.
5
000025
26.
That it has been necessary for Plaintiff to retain the services of attorneys to
prosecute this action, and Defendants should be required to pay reasonable attorneys'
4
fees and costs of prosecuting same.
5
v.
8
9
10
11
"
><
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27.
though said paragraphs were fully set forth and incorporates the same herein by
reference.
12
28.
13
14
15
action to enforce or interpret any temn of the Agreement is entitled to an award of all
reasonable legal costs and fees associated with such an action.
29.
16
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compelled to file the instant case which is the type of "action" contemplated by
Paragraph 26 of the Agreement.
19
30.
20
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23
1.
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2.
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26
Ill
f/1
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f/1
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6
000026
3.
4.
5.
For such other and further relief as the Court deems just and proper.
3
4
DATED this
ClJ
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8
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(
"
,_
<
>
1-
1- z
Ill
z c
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Ill ,_
0 <
12
JEFFR
Nevada
3301 N.
alo nve, Suite 195
Las Vegas, Nevada 89129
(702) 839-1100
Telephone:
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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7
000027
EXHIBIT "A"
EXHIBIT "A"
000028
Recitals
A Whereas, Content Provider provides certain content regarding upcoming and past
sponing events and sports related information (collectively, the "Comem").
-:::Ff....
---------------------------
included in such discounted offerings over the cow;e of any calendar month
without the express consent of the Content Provider.
6. Content Provider Promotional ElTon. Content Provider shall use its best
efforts lo (i) promote the sale of the Content through Pregame's website; and
(ii) promote other content provider.; publishing content on Pregame's
website.
7. Quantity of ContenL Content Provider shall produce content commensurate
with at least JO hOIII"S of effort per month (as measured by a reasonably
average con lent provider) and the Content produced must be at least of the
quality of content produced by similarly siiWiled content pro\'idcrs.
9. Term and Termination. Unless otherwise staled on staled on Exhibit A.. the
term of this Agreement shall commence on the Effective Date Wld continue
for a period of live (5) years (the
Tenn'"). Thereafter, this Agreement
shall automatically renew on an annual basis for consecutive one (I) year
terms (each a
Tenn"). Either party may terminate this Agreement
either prior to the conclusion of the Lnitial Tenn or during any Renewal Term
upon at least thirty (30) days notice with such termination effecti\'e on the
next renewal date. Either may terminate this Agreement for breach of a
material term of this Agreement upon at least thirty (JO) days prior wrinen
notice of termination provided the breach is not cured Mthin such notice
period. During Wly period that Content Provider is (i) in breach of this
Agreement; (ii) is acting in an unprofessional manner or (iii) acting in any
manner which. in Pregame's solo discretion, reflects advcr.;ely on Pregame,
then Pregame may. in its sole discretion. restrict or suspend display and/or
promotion of the Content.
10. Obligations During Notice Period. ln the event that Content Provider desires
to terminate this AgreemenL during the thirty (30) day notice period required
in Section 9, hoth panies must maintain dealing romJ'III"'ble to their dealings
prior to lernlinating this AgreemenL including Content Prm1dcr continuing to
pro>ide Content of comparable quantity and quality. After the expiration or
tcnnination of this Agreement for any reasort C<1ntent Provider shall not
indicate to any third party that Content Provider bas ever pro\-ided content to
Pregame. com.
000030
Coment
000031
(20) days after this Agreement is tenninated Content Provider will certify in
writing to Pregame that Content Provider has complied with these obligations.
16. No Conflicting Obligations. During the term of this Agreement and for a
period of two (2) years after tennination or expiration, except as may be
expressly permitted on Exhibit A.. Content Provider will not. directly or
indirectly, (i) be invohed with a business which is in competition with
Pregame. or (ii) divert or anempt to divert any business that Pregame has
enjoyed. After the termination of this Agreement. Content Provider is
prohibited from contacting, anempting to contact. solicit any customer, buyer
or person or providing any
to whom Content Provider had contact
with while fulfilling its obligations under this Agreement.
17. Third Partv Placement. Unless otherwise stated on stated on Exhibit A, if
Pregame places Content with web sites or other distribution mechanisms
operated by one or more third panies (each a
Party Site"). Content
Provider agrees to waive Content Provider's relationship indefinhely with
such Third Party Site, so that Content Provider agrees to never contact, solicit.
accept employment, offer services under any assumed name with that Third
Party Site both during and after the expiration of this Agreement.
18. Non-Solicitation. Any allempt on the part of Content Provider to induce an
employee or customer 10 leave Pregame, or any effort by Contem Provider 10
interfere with any relationship with Pregame employees or other content
providers would be harmful and dantllj;ing to the Pregame. Therefore,
Content Provider agn:c:s that during the: t<!llu of this
and after
termination of this Agreement, Content Provider will not in any way directly
or indirectly:
,------'
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________
-,
b.:rwec:n Coott:nt Providt:r Wid Pregame with respect to any Content or other
services. There are no other promises, representations. understandings or
inducements other than !hose specifically set forth in this Agreement.
28. lndemnitv. Content Provider ,.;]I indemnify. defend and hold harmless
Pregame from and against any claims or actions by any other party, arising
from or related 10 the provision of the Content by Content Provider or
Pregame's use thereof and pay all liabilities. costs (including anomeys fees)
and expenses incurred by Pregame in connection therewith.
29. Headin!!S. Headings are inserted for the convenience of the parties only and
an: not to be considered wben intClpreting this Agreemenl
30. lntemrel.a!:ion. Words in the singular mean and include the plwal and vice
versa Words in the masculine mean and include the feminine and vice versa.
The phrnse
shall mean
without limitation.31. Survival. The provisions of Sections 13, 14, 15, 18, 19, 20, 2 I. 28 and
31 shall survive the cxpirnrion or termination of this Agreement for any
reason.
32. Governing Law. This Agreement and the performance under this Agreement,
and all suits and special proceedings under this Agreement, be construed in
accordance with and governed by the laws of the State of Nevada, without
reference to its choice of law
All actions and proceedings
pertaining 10 this Agreement will be filed and litigated exclusively in any state
court or federal court located in Clarlr. County, Nevada Pregame and Content
Provider expressly consent to the juri.diction of these courts, agree tltat venue
is proper in these couns and company and you consem to senice of process
made ot your ,..,, known address in companies records.
33. Severobilitv. In the event that any of the provisions of this Agreement are
held to be invalid or unenforceable in whole or in parl all other provisions
will nevertheless continue to be valid and enforceable \\ith the invalid or
unenforceable pans severed from the remainder of this Agreemenl
34. Waiver. The waiver by either party of a breach. default, delay or omission of
any of the provisions of this Agreement by the other party will not be
consttued as a waiver of any subsequent broach of the same or other
35. Blogcing Content. In the event Content Pro1ider pro1ides any content to blog
sites, bulletin bollrds or other communicati<>n forums hosted by Pregame,
Content Provider agrees to be bound by and strictly comply with the Terms of
Use located at wv.-w.pregame.comltcnns-of-service
IN WITNESS WHEREOF, lhe panies have duly executed !his Agreement as of the
dates set forth below intending thai this Agreement be effective as of the Effective Date.
State of
NJ w(( C!
County of
(I \(.(\' IL.
0
{
day of 'J-\.IiJ,
me a notary public. the
undersigned officer, personally appeared I I (/
I'U ( L\ known 10 me
(or satisfactorily proven) 10 be the person whose nami:lSSubscribedto the "ithin
instrument. and acknowledged thai he execU!ed the same for the purposes therein
contained.
On this, the
nn Ui
l::1bibit A
contribUtor.;.
CompellSiltion Calcuhu.ion
I. (Net Revenues from Content) X (the Commission Rate)= Gross Commissions
2. (Gross Commissions) X (I.{:ost ofGro\Oth) =Net Commissions
Nut.c:: nte adjuslmc:nt made in Step 2 .sha.U not n:ducc Gruss
than 39'11.
by greater
000036
content acrually delivered in a given calendar month will dictale the percentage of
package's net revenue alloned to that mo?th).
example,
Content package
is purchased on April!, and the Content ts pro1msed to be delivered through
May 31, then the percentage of revenue alloned to April will be 50%, with 50"/o
alloned to May.
Section 16: Notwithstanding the provisions of the first sentence of Section 16, Content
Provider may pro\ide the Content to competitors of Pregame after the term of this
Agreement
Section 19: Pregame sball not make any further use of tbe Nom De Gambling upon
termination of this Agreement and, effective upon such termination, assigns 10 Content
Provider all right, title and interest in and 10 the Nom De Gambling.
000037
EXHIBIT "B"
EXHIBIT "8"
000038
A.
Whereas, Pregame and Content Provider have previously entered
into a Content Services Agreement with an effective date of 1 0 / B
(the "Agreement") pursuant to which Content Provider provides to Pregame
certain content regarding upcoming and past sporting events and sports related
information (collectively, the "Content").
l;Ja!J
B.
Whereas, Content Provider desires to establish and maintain an
account on one or more social networking sites such as Twnter, Facebook and
MySpace (collectively, the "Social Sites") on which Content Provider will Promote
the Content.
C.
Whereas, the parties desire to establish certain understandings as
to Content Provider's use of Social Sites as set forth in this Agreement.
IN CONSIDERATION OF the matters described above and of the mutual
benefits and obligations set forth in this Addendum, the parties agree as follows:
1.
Defined Terms and Recitals. Capitalized terms not defined herein
shall have the meaning given to them in the Agreement. The above-referenced
Recitals are hereby incorporated in this Amendment by this reference. Except as
modified by this Amendment, the Agreement is hereby ratified and remains in full
force and effect.
2.
Pregame Network. Pregame operates a website at
www_pregame.com (the "Website") to which Content Provider provides the
Content. As one of its features, the Website provides marketing and networking
functionality (the "Pregame Network").
3.
Promotion on the Pregame Network. Content Provider may
promote its presence on Social Sites through the Pregame Network if and only if
all of the following are true: (i) Pregame is the registered account holder of the
applicable Social sne account (each an "Account"); (ii) Content Provider has
delivered the current user name and password for the Account to Pregame and
does not change these items without Pregame's prior written consent;
0ii) Content provider shall not reference any third party (eg a competitor
Pregame.com) through the Account without prior written permission of Pregame;
and (iv) Pregame may modify the look and feel (but not the content) of the Social
Pages associated with the Account, including placement a "Sponsored by
Social
Co:-..1 t.:.!"l
Addendum
:\GA.EEME!'I. r
Pregame or other logo. Content Provider covenants and agrees to maintain the
accuracy of each statement in this Section for the duration of the Agreement.
4.
Uguidated Damages. IN THE EVENT CONTENT PROVIDER
UTILIZES THE ACCOUNT IN VIOLATION OF SECTION THEN CONTENT
PROVIDER AGREES THAT PREGAME WILL BE DAMAGED IN AN AMOUNT
WHICH IS NOT READILY ASCERTAINABLE, DUE TO THE SPECIAL NATURE
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN.
FURTHER, CONTENT PROVIDER WISHES TO HAVE A LIMITATION PLACED
UPON ITS POTENTIAL LIABILITY TO PREGAME IN THE EVENT OF SUCH A
BREACH. THEREFORE, CONTENT PROVIDER AND PREGAME HEREBY
AGREE THAT CONTENT PROVIDER SHALL PAY THE SUM OF $50.00 PER
MARKETING MESSAGE TO ACCOUNT FOLLOWER (E.G .. 1,000
FOLLOWERS- ONE MESSAGE $50,000) IN VIOLATION OF SECTION .
PREGAME AND CONTENT PROVIDER HEREBY EXPRESSLY AGREE THAT
SUCH PAYMENT BY CONTENT PROVIDER IS REASONABLE AND IT
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PREGAME AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY.
CONTENT PROVIDER AND PREGAME ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INfTIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Content Provider Initials:
__
Pregame Initials:
f..,
. 5.
Content Control. Content Provider shall be responsible for all
content posted or otherwise transmitted through the Account. Content Provider
shall indemnify, defend and hold harmless Pregame from and against any and all
claims (including all liabilities. costs. expenses (such as attorney fees),
obligations and damages) in any way arising from or related to the Account.
6.
Effect of Termination. Content Provider's ability to access and use
of all Accounts pursuant to Section of this Addendum shall automatically
terminate upon termination or expiration of the Agreement. All other provisions
of this Addendum shall survive termination or expiration of the Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Social
Network Addendum as of the dates set forth below intending that this Addendum
be effective as of the Effective Date.
PREGAME LLC
Name:
g,. . . J "-
LL
Trtle:
Date:
Date:
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DISTRICT COURT
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Case No:
Dept. No:
Plaintiff,
vs.
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Defendant.
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Pursuant to NRS Chapter 19, as amended by Senate BiU 106, liHng fees are submitted
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for parties appearing in the above entitled action as indicated below:
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$270.00
DATED lhis
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JEFFRE
Nevada
3301 N. uffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
000042
Electronically Filed
07/16/2014 04:14:05 PM
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DISTRICT COURT
PREGAME LLC,
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JOHN KARALIS,
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Plaintiff,
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Defendant.
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COMES NOW, Plaintiff, PREGAME LLC, by and through its counsel, DENNETT
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WINSPEAR, and hereby submits the following Motion pursuant to Article 6 of the Nevada
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This Motion is made and based upon the pleadings and papers on file herein, the Points
and Authorities cited, and oral argument of counsel, if any, at the lime of hearing.
DATED this
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By
Nevada Ba No. 0
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3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
(702) 839-1113
Facsimile:
Attorneys for Plaintiff Pregame LLC
000043
NOTICE OF MOTION
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TO:
YOU, AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the undersigned counsel
will bring the above and foregoing PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION on for hearing before the above-entitled Court in
DATED this
16 day of SEPTEMBER
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JEFFREY
Nevada Ba
3301 N. B
o Drive, Suite 195
Las Vegas, Nevada 69129
Telephone:
(702) 839-11 00
Facsimile:
(702) 839-1113
Attorneys for Plaintiff Pregame LLC
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I.
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SYNOPSIS
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related content of interest to sports fans and sports bettors. Some of that content is provided
free of charge to viewers of the website and other content. designated "premium" content. can
only be accessed through a paid subscription. Premium content subscription fees are a main
source of revenue for Plaintiffs business.
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and password for all such accounts to Plaintiff and was prohibited from changing said passwords
without Plaintiffs prior written consent. Finally, Karalis was forbidden from referencing any third
party competitor to pregame.com without prior written consent of the Plaintiff.
(Exhibit "2",
Paragraph 3). The Addendum included a liquidated damages clause specifying damages for
each and every violation of the provisions outlined above. (Exhibit "2", Paragraph 4).
Nevertheless, on or about June 18, 2014 Defendant Karalis attempted to "resign" from
his contractual relationship with Pregame LLC. Upon information and belief Karalis was induced
to do so by an offer from a direct competitor to Pregame LLC.
engaged in conduct in direct violation of his obligations and Pregame LLC's rights under the
Agreement. Such violations have been ongoing and continuous and have caused substantial
damage to Pregame LLC. The nature of the damage to Pregame LLC is irreparable inasmuch
as the content which Karalis is obligated to provide to Pregame LLC for distribution is being
provided to a competitor. Once distributed to the public by the competitor such content cannot
be "undistributed" and the value of that content is lost to Pregame LLC forever. In addition, the
oniJoing disclosure of information related to Pregame LLC by Karafis further results in
irreparable harm as such information, confidential and otherwise, cannot be retrieved once made
public by KarafJS.
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Ill.
LEGAL STANDARD
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Article 6, section 6 of the Nevada Constitution specifically grants the district courts power
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to issue writs of injunction. 'The basis for granting injunctive relief is equity. Sherman v. Clark, 4
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Coronet Homes, Inc.
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v.
My/an, 84 Nev. 435, 437, 442 P.2d 901, 902 (1968), and Thom
v.
temporary restraining orders, (2) preliminary injunctions, and (3) permanent injunctions. NRCP
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65 (2004). 'The purpose of a temporary restraining order is to prevent irreparable harm until the
parties can be heard on a motion for preliminary injunction. A preliminary injunction is designed
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to continue to protect the applicant from irreparable injury and preserve or restore the status quo
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pending final judgment. Ottenheimber v. Real Estate Division, 91 Nev. 338, 342. 535 P.2d 1284,
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1285 (1975) and Memory Gardens of Las Vegas, Inc. v. Pet Ponderosa Memorial Gardens, Inc.,
88 Nev. 1, 4 492, P.2d 123, 124 (1977).
NRCP 65 and NRS 33.01 0 authorize the Court to grant injunctive relief when the
commission or continuance of an act produces great or irreparable injury to the plaintiff. NRS
33.010 provides:
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Although no precise burden of proof must be met by the party seeking injunctive relief,
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courts traditionally consider the following equitable criteria: (a) the threat of irreparable injury; (b)
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balance of hardships on each party; and (d) the interests of the public. See, e.g. Miner
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Pac. Medical Center., 19 F. 3d 449, 456 (ff' Cir. 1994) citing U.S. v. Odessa Union Warehouse
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plaintiffs likelihood of success on the merits are the facts most often cited. See e.g., Sobol v.
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Capital Mgmt. Consultants, Inc., 102 Nev. 444, 446, 726 P.2d 335, 337 (1986).
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v. Cal.
ARGUMENT
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IV.
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on
A.
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damage." Berryman v. lntemational Brotherhood of Elec. Worl<er:s, 62 Nev. 277, 260, 416 P.2d
387, 366 (1966).
never be
recovered. For example, currently the FIFA World Cup is being played in Brazil. The
Wor1d Cup tournament itself happens only once every four years and the individual games within
the tournament are unique, one-time events that can never be duplicated. Upon information and
belief Defendant Karalis is providing content related to the Wor1d Cup on an ongoing basis to a
competitor of Pregame LLC in violation of Pregame LLC's clear and exclusive contractual right to
such content. That same content includes information that, upon reasonable reliance, Pregame
LLC anticipated receiving from Karalis (as is its contractual right) and distributing to its
customers. Every bit of content that Karalis provides to a service other than Pregame LLC is lost
to Pregame LLC forever.
The Agreement specifically restricts Karalis from divulging any non..public information
pertaining to Pregame LLC, including information disclosed to Karalis or learned by him as a
result of his relationship to Pregame LLC through the Agreement. Upon information and belief
Karalis has in fact disclosed Confidential Information, as defined by the Agreement, since his
attempt to unilaterally avoid the Agreement. In addition, the on-going disclosure of information
related to Pregame LLC by Karalis further results in irreparable harm as such information,
confidential and otherwise, cannot be retrieved once made public by Karalis.
Clearly the
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A preliminary injunction is available upon a showing that the party seeking it enjoys a
reasonable probability of success on the merits" Sobol v. Capital Management Consultants, Inc.
102 Nev. 444,726 P.2d 335 (1986) Here, Plaintiff will easily be able to estabtish the existence of
Restatement of Contracts 19-24; Lamoureux v. Bunillville Racing Ass'n, 91 R.I. 94, 161 A.2d
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213, 215 ( 1960), that Kalaris' conduct constitutes a breach of that contract and that as a
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Contrarily, Kalaris has no defense to Plaintiffs claim of breach. Essentially Kalaris simply
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decided to unilaterally extricate himself from the relationship when something which he
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perceived to be a better deal came along. The contract provides no such mechanism for
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Karalis knew of his contractual obligation to provide exc:lusive content to Pregame LLC.
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In fact, Karalis has been operating under that obligation for the past several years. Karalis' only
motivation for breaching the contract with Pregame LLC was an offer of more money from a
competitor.
The ability to obtain Karalis' content for publication was the very essence of the
contract from Pregame LLC's point of view. That exclusive content was the sole benefrt of the
bargain between the parties to be received by Pregame LLC.
Further, it cannot be reasonably argued that Karalis was not aware that his unilateral
decision to terminate the relationship prior to the and of the contract term was not contrary to a
vested interests of Pregame LLC.
generated by publication of his coment he was directly aware of the substantial extent of the
harm Pregame LLC would suffer if he decided to simply stop providing the content to Pregame
LLC and start providing it instead to a competitor.
Because Karalis is the only party in this case engaged in inequitable conduct, it is not
appropriate for the court to consider whatever hardship may resuH to him by issue of a temporary
restraining order and/or preliminary injunction. The temporary restraining order foHowed by a
preliminary injunction should be granted.
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The public interest presented in this case is the need for public confidence when entering
imo commercial contracts that mutually beneficial, longstanding comractual relationships may
not simply be abandoned by one party when a perceived "better deal' comes along. The ability
of a non-breaching party to quickly and efficiently enforce its rights under a contract must be
maintained. To allow the obvious, unjustified and continuous breach of a service contract, such
as the one in this case, while forcing the aggrieved party to pursue protracted litigation to enforce
its rights undermines the expectations of businesses and citizens who rely every day on those
promises to perform. The timely and economical remedy of a TROI preliminary injunction early
on is an essential element in maintaining the effectiveness and enforceability of commercial
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contracts.
v.
CONCLUSION
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For the above stated reasons this Court should grant the temporary restraining order
immediately and set a
DATED this
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000051
EXHIBIT "1"
EXHIBIT "1"
000052
I.
CONTENT SERV1CES AGREEMENT
This Content Services Agnx:naent (Ibis "Agreaneon is effective as of JWlC 18, 2012 (the
"Effective Date") and is made by and betweco Pregame, LLC a Nevada limited liabilirv
...O aod lbc Wltlcr.;igocd so:rvice provider ("'Coqteot Provider").
Recitals
IL Whereas, Comem Provider provides cenain cooleD! regarding upcouiliag and past
sponiDg evcots and spons rela!Od infomamioo (collectively, tbe "Conrem").
C. \\'bereas. Pn:game desires 1o receive such Contelll on the terms and conditions set
fonb in this Agreement.
IN CONSIDERA DON OF tbe mllllCtS dc:saibed above and of the marual beodits and
obligalioos SCI forth in thls Agreement, the parties 1o this Agxeaoeut agree as follows:
I.
000053
-----------------
included in such discow11ed offerings over the cow-se of any calendar IDOIIth
withoul the express consent of !be Content Provider.
5.
6. Content Prolider Promotional Effort. Content Provider shall use its best
eJTons 10 (i) promote the sale of the
through Pregame's website: aod
(ii) promote olhercontent pnnidm: publishing content on Pregame's
website.
000054
000055
(20) days after Ibis Agreemt:n! is terminated Content Provider will certify in
writing 10 Pregame Om! Content Provider has complied with these obligations.
16. No Conf!jcling ObligBiions. During the tc:rm of this Agreement and fora
period of IWo (2) years after termination or expiration. except as IIlii)' be
pennined on Exhibit A. Conll:a! Provider will not. directly or
indirectly, (i) be involved with a business wiUcb is in competition witb
Pregame. or (ii) divert or ancmpt to divc:n my business !hal Pregame bas
enjoyed. A.ftcr tbe terminalion of lhls Agn:cmcnl, Content Provider is
prohibited from contacting. atlempting to coqtact, solicit any customer, buyer
or person or providing any IX>Illenl to whom Contelll Provider had contact
with while fulfilling its obligations under Ibis Agreement
17. Third Part\ Pla=meuL Unless otherwise swed on staled on Exhibit A, if
with its
:fl-.
000056
I.
Gambling bas been previously utilized by Co111C111 Provider. then Conu:nt
Provider
assigns to Pregame any and all right, title ;md imeresl Content
Provider may have in or lo l'IICh Nam Oc Gambling. Tne Nom De Gambling
for !be Conl!:lll is a tnuJemark of I'Jegamc. Conll:nl Provider shall not ..Oiize
or anempt to register aoy name which is deceptively similar to the Nom De
Gambliog prmided by Pregame under the tams of this
This
Section 19 is subject to mocli!icaticm as provided in E.'lhibit A.
20. Trademarl<s. Contenl Provider shall DOl utilize Jhe name Pregame or any of
Pregame's trademarlcs wilbout the prior written CODSenl of Pregame.
21. Rights in Coole:nl. Conlcnl Provider agtecs lbat any ilcm of inJellcctual or
artistic propeny (includiog Content) gc:oera!ed or provided by Conu:nt
Provider in connection with !he performance of Ibis Agreement is e -won.: for
hire" Wider all applicable laws and the sole property ofPn:game.
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Altomevs Fees. In the e\'e!l! thai legal action is broughl1o enfon:e or imerpre1
any ICml oftbis AfPecmem, the pre>ailins pany "ill be ""titled 10 recover, in
addition 10 any othe:r damages or awanl, all reasonable legal COSIS and fees
assoc:iated with the action.
27. Entire Agn:ement. Thls Agreement n:pesems the enlin: undcrslanding and
bcrweeu Conlent l'rovidcr and Pregame as to !he subjecl maner
bercnf. This Agreement supenedes any othe:r agrecments and Wlderstandings
"llfl'CCD""'
000057
--. ------------,
becwt:cn Coolcllt Providt:r and Pregame with respect ID any Conlellt or other
scMcc:s. There are DO other promises, represenllltions. undemandings or
induc:emaJts other than those specifically set forth in Ibis Agreement.
28. lndemnitv. <.:ontent Provider "'ill indemnify. defend aod bold harmless
Pregame from aod against BDY claims or actions by any otha- pany, arising
from or related ID lbe provision of tbe COOICDI by ConleDI Pnl\'ider or
Pregame's use thereof and pay all liabilities. costs (including atlomeys fees)
and expenses incum:d by Pregame in COD!Iedion therewith.
29. Headines. Headings are iusencd for tbe convenience of lbe panics only and
are not to be considered wbCD interpreting this Agreement.
30. lnle!'p!'fflprion. Words in lbe singular mean and include the plur.d and vice
va1>a Words in the masculine mean and include tbe feminine aod vice versa.
The phrase
shall mean "including without limilation.-
31. Survival. The provisions ofSeaions 13, 14, IS, l 8, 19, 20, 21, 28 BDd
31 sball snrvivc the cxpirntion or to:rmination of this Agreement for any
reason.
32. Governing Law. This Agreement aod lbe performance Wider this Agreement,
and all suits aod special proceedings under this Agreement, be CODSirued in
ltCX:(m!ance with and governed by the laws oflbe Stale of Nevada, without
reference tt> its choice oflaw prtJ\'isioos. All actions and pnx:ec:ding5
pe:rlllining 10 this AgHoement wiU be filed and litigrued exclusively in any stale
court or fudenll coun located in Clarlr. Counl)o, Nevada. Pregame and Ccm1ent
Provider expressly canscntto the jurisdiction of these courts, agree 1!131 venue
is proper in these couns and company and )'011 consent 10 senice of process
made Bl your last knov.'ll addrc:ss in companies n:co<s..
33. SeverabilitY. In the event tbB1 any of the provisions of this Agreement are
held ID be innlid or UD<:rlforceable in whole or in pan. all otha- provisions
will nevo:nbeless continue ID be valid a11d c:nfmeeable with the invalid or
IUic:nfcneeabk: pans sevcml from the n:mainder of this Agreemcm.
34.
35. Bloggioe ContenL In the e\'cnt Content Provider pro\;des any COD!tDIID blog
sites, bulletin boanls or Olbcr COilliJlllllicaoo fUIUIIIS b<>Siod by Pregame,
Conl<:lll Provide:< agrees lo be bouod by aod suictly comply with lbe Terms of
Use localed m wv.w.pregame.com!u:nns-of-service
000058
Stale of
NJ l.arfCf
County of
(i l (.l\' !L-
/0
U,
day of \i-\. I
20 ft;b;,fore me a not? public.. the
under.iigoedofficer,personallyappe:ared
U{l'kl ( L
,known tome
(or satisfaclonly proveft) to be
person ..:hose
is subscribed to the wilhiD
instrument. and acknowledged tbal be execmed lhe same for the purposes lben:io
On this, tbe
,(Vfin
COJJtained.
000059
E>.bibil A
"Cost of
-Gross Revcpues- means sums actually n:ccived from the resale of all fee
based contentiO end = (whether through Pn:gamc or Third Pany Site).
calendar year by the Nc:t Revenues for the Baseline Year. For avoidance or
doubt. the Growth Rale can not be less than zero.
Nc:t Revenues from bundled conteot sball be divided pro-11118 emcmg the
contribUIOI>.
ofGroWih} = Nc:t
Cammissi<ms
Notc:: '11Je adj1151Jncnl mode in Step 2 ,;hall l1tJl n:dua: lituss CummissiUU!l b,- fll"''dd'
tlwl39%.
If Content pack"B"' an: sold mwhich the promised deli""'l' of lbe Content
extends beyond lbe ealendar monlb of purcbase. the aa:ounting of IIC! reveoue
corresponds wilh the ac:lual delivery of lhe Content (i.e. tho pcrcentage of the
000060
COIIICDI actually delivered iDa given calendar month "ill diciSie the pe:rcen!Dge of
package's net m>enue allottee! to tha1
example,
CoDlelll package
is pun:hased on April I, and !he Conlelll IS proDilsed 10 be delivered through
May 31. then the pe:rcenlllge of revenue alloued 10 April will be 50o/o, with 50%
all oiled 10 May.
Al!lcc:ment
Section 19: Pn:game shall oot make any further usc of the Nom De Gambling upoo
tcrmimllion of Ibis Agreement and. effective upon sucl! termination, assigns to Conlc:l!l
Provider all rit;bt. title and imerest iD and to !be Nom De Gambling.
000061
EXHIBIT "2"
EXHIBIT "2"
000062
I.
SOCIAL NETWORK ADDENDUM
A.
Whereas, Pregame and Contem Provider have previousJ.Iy entered
into a Content Services Agreement with an effective date of I 0 I B:;a:(l
(the "Agreemen!"J pursuant to which Content Provider provides to f>fegame
certain content regarding upcoming and past sporting events and sports related
information (collectively, the "Content").
B.
Whereas. Contenl Provider desires to establish and maintain an
account on one or more social nelworlting sites such as Twitter, Facebook and
MySpace (collectively. the "Social Sites") on which Content Provider will Promote
the Content.
C.
2.
Pregame Network.. Pregame operates a website at
www .pregame. com (the 'Website") to which Content Provider provides the
Content As ane of its features. the Website provides marketing and networking
functionality (the "Pregame Network").
3.
Promotion on the Pregame Netwofk. Content Provider may
pJ'OII'IOte its presence on Social Sites through lhe Pregame Network if and only if
all of the foDowing are true: (i) Pregame is the registered aa::ount holder of the
applicable Social Site account (each an "Account"); (ii) Content Provider has
delivered the current user name and password for the Account to Pregame and
does not change these items without Pregame's prior written consent;
(iii) Content provider shall not reference any third party (eg a competitor
Pregame.com) through the Account without prior written permission of Pregame;
and (iv) Pregame may modify the look and feel {but not the content) of the Social
Pages associated with the Account. including placement a "Sponsored by
Social N.....-crl. Addcudum
000063
Pregame or other logo. Content Provider covenants and agrees to maintiln the
accuracy of each statement in this Section for the duration of the Agreement
4.
LiQuidated Damaoes. IN THE EVENT CONTENT PROVIDER
UTILIZES THE ACCOUNT IN VIOLATION OF SECTION THEN CONTENT
PROVIDER AGREES THAT PREGAME WILL BE DAMAGED IN AN AMOUNT
WHICH IS NOT READILY ASCERTAINABLE. DUE TO THE SPECIAL NATURE
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN.
FURTHER, CONTENT PROVIDER WISHES TO HAVE A UMITATION PLACED
UPON ITS POTENTIAL LIABIUTY TO PREGAME IN THE EVENT OF SUCH A
BREACH. THEREFORE, CONTENT PROVIDER AND PREGAME HEREBY
AGREE THAT CONTENT PROVIDER SHALL PAY THE SUM OF $50.00 PER
MARKE11NG MESSAGE TO ACCOUNT FOLLOWER (E.G., 1,000
FOLLOWERS- ONE MESSAGE- SSO,OOO) IN VIOLATION OF SECTION .
PREGAME AND CONTENT PROVIDER HEREBY EXPRESSLY AGREE THAT
SUCH PAYMENT BY CONTENT PROVIDER IS REASONABLE AND IT
INTENDED TO CONSTITUTE UOUIDA TED DAMAGES TO PREGAME AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY.
CONTENT PROVIDER AND PREGAME ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY
THEIR INITlALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS
TERMS.
Pregame Initials:
5.
Contenl ControL Content Provider shall be responsible for all
content posted or otherwise transmitted through the A=unt Content Provider
shaD indemnify, deleJld and hold hannless Pregame from and against any and all
claims {including all liabilities, costs, expenses (such as attorney fees),
obligations and damages) in any way arising from or related to the Account
6.
Effec:l of Termination. Content Provide(s ability to access and use
of all Accounts pursuant to Section of this Addendum shaD automatically
Ct.lfo."Tl-J<.."T Sal\''Cl!S
000064
PREGAME U..C
By:
/Z-4;' .&?
Name:
Title:
Date:
Q. . . .
JX...,c, ....
By:
#!
Name:
('<IQNS.
Date:
Jz,f09
;:)
C E0
I
3
Social "'-""' Addon6um
000065
1
2
4
5
6
7
DISTRICT COURT
PREGAME LLC,
10
<
Plaintiff,
11
vs.
12
JOHN KARALIS,
Case No:
Depl No:
-'
<
,.
1- w
1- z
w
z
z
w
0 <
0
13
Defendant
14
15
16
17
1.
18
2.
19
3.
Affiant is over the age of 18 years and can testify to the matters herein of his own
20
21
22
23
!i
3.
Affiant provides this Affidavit in support of Pregame LLC's Motion for Temporary'
Plaintiff
operates
website
residing
on
the
world
wide
web
at
24
25
provides sports related content of interest to sports fans and sports bettors.
26
27
Some of that
designated
Premium content
28
000066
1
2
3
4
5
8
9
10
11
<
12
-'
'(
>
ff- z"
I!J
z
z .
D
I!J
'
<
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
On or about June
entened into a Social Network Addendum ("the Addendum") with Defendant Karalis.
The
Agreement and the Addendum are attached to Pregame LLC's Motion for Tempof"al)'
Restraining Order and Preliminary Injunction as Exhibits A and "B", respectively.
6.
By its express terms the Agreement was to continue for a period of 5 years,
terminating in June 2017. The Agreement followed a previous similar contract between the
parties which was neplaced by the Agreement The parties have operated under the current and
previous contracts for a period of several years without incident.
7.
license to "pub6sh, display, reformat and distribute" all sports related content generated by
Defendant Karalis, as weU as the right to bundle such content with that of other providers. In
addition, the Agreement provides that Karalis may not publicly disclose information related to his
relationship with Pregame LLC, that Karalis wiU not undertake any confiicting obligations, and
that Karalis will not attempt to induce employees or customers of Plaintiff to leave Pregame LLC
or pregame.com. The Agneement further restricts Kalaris' use of the Nom De Gambling "Vegas
Runner".
8.
holder of any Social Site accounts, including Twitter handles, utilized by Defem:lant Karalis in
connection with the production of content Karalis
passwords without Plaintiffs prior written consent Karafis was also forbidden from referencing
any third party competitor to pregame.com on Social Sites without prior written consent of the
Pregame LLC. The Addendum inc:ludes a liquidated damages clause specifying damages for
each and every violation of the provisions outlined in this paragraph.
28 ;
2
000067
1
2
3
4
5
6
7
8
9
10
11
<
'
<
>
If- w
f- z
z
z
w "
0 "<
0
12
13
9.
On or about June 18, 2014 Defendant Karalis attempted to "resign' from his
c:cmtractual relationship with Pregame LLC. Upon information and belief Karalis was induced to
do so by an offer from a direct competitor to Pregame LLC. Since that time Karalis has engaged
in conduct in direct violation of his obligations and Pregame LLC's rights under the Agreement
Those violations have been ongoing and continuous and have caused substantial damage to
Pregame LLC.
content which Karalis is obligated to provide to Pregame LLC for distribution is being provided to
a competitor.
undistributed" and the value of that content is lost to Pregame LLC forever. in addition, the or<going disclosure of information related to Pregame LLC by Karalis further results in irreparable
harm as such information, confidential and otherwise, cannot be retrieved once made public by
Karalls.
i
10.
14
15
16
17
18
19
Nor
YPIJeuc
20
21
22
23
24
25
26
27
28
3
000060
EXHIBIT "4"
EXHIBIT "4"
000069
Page I of I
ra
:;-:::
-:> -
... .,...,
to
tor1taa NbiM
Conmct EIMD
R""
Em.:JII
Oeb::BPou
Dennett. Wlnspeat, UP
--
"""'-
""'"
fl!me-Mr:!''f1C!l!'!f:!JWI!!S m
DenneltWJnspear
""""
ll!!'f!!lxjlwngh!fnyro W!!
000070
9/22/2014
t:.
Jeff Galliher
rrom:
_o:
Subject:
Attachments:
Mr. Prokopius:
Attached please find my correspondence of yesterday's date along with other documents related to this case.
Regards,
AT
LAW
Th1s message and any aUachmenls nra inlondcd only for lhc usc of the 1ndivit1ua1 or entity lo which they me odOressod lf Ule re(lder of this message or an
attachment Is not the intended recipient or lho omployae Of agent responsible for delivorinu U\o mossogo or nnnchment to the 1nlended rocrpient you are hereby
notified ttlat nny dlssamiMIIon. distribution or copy1ng ollhis message or My attar..hnu.mtrs strictly prohlbr!Qr:l. If yotJ hnvo mcel11ed this communication in error.
please notify us Jmmedialofy by repfyjng to the sender. Tile infonnntmn !mnsnuUcd m th1s message and any attachments nmy be priv1l<!gCd, is mtenclcd only for
the personal and confidential use of the intended redpienls. ilnd 1S covcr<XI bY the
Commun1cal!Ons Fnvacy /\ct, 18 U.S,C. 25102521.
000071
Jeff Galliher
Alex Gomez [Aiex@PANDBLAWYERS.COM]
Jeff Galliher
Friday, August 29, 2014 2:43PM
Read: Pregame LLC v. Karalis
Your message
To: Alex Gomez
Subject: Pregame LLC v. Karalis
Sent: Friday, August 29, 2014 1:54:32 PM (UTC-08:00) Pacific Time (US & Canada)
was read on Friday, August 29, 2014 2:42:32 PM (UTC-08:00) Pacific Time (US & Canada).
000072
EXHIBIT "5"
EXHIBIT "5"
000073
Page I of I
EJ
lff2'lf.'h.o 14
EXHIBIT "6"
EXHIBIT "6"
000075
Page 1 of2
REGISTER OF ACTIONS
CASE No. A14-703627C
P"'ll"""' LLC, PlalnUI!js) vs. John Karalls, Defendant(s)
PARTY INFORMATION
Counter
Karalls, John
L-
ttorneys
conn W Prokopluo
Retained
Claimant
702-474-0500{W)
Counter
Defendant
Prvgame LLC
Jelfnly L. Galliher
Retained
702243-5282{W)
Defendant
Karalls. John
Donn W Prokoplus
Rote/ned
702-474.0500{W)
Plaintiff
Pregame LLC
Jeffrey L. GanJher
R&tained
702243-5282(W)
EVENTS & ORDERS OF TilE COURT
000076
Page 2 of2
000077
EXHIBIT "7"
-:r:
EXHIBIT "7"
000078
..
1
2
3
4
5
6
7
DISTRICT COURT
PREGAMEUC,
10
Plaintiff,
11
vs.
12
JOHN KARALIS,
13
14
>
15
<
16
17
case No:
Depl
No:
DefendanL
Belr professionally.
18
2.
19
3.
Affiant is over the age of 1B years and can testify to the matters herein of his own
20
21
22
23
Affiant provides this Affidavit in support of Pregame UC's Motion for Temporary
Plaintiff
operates
website
residing
on
the
world
wide
web
at
24
25
provides sports related content of Interest to sports fans and sports bettors.
Some of that
content is provided free of charge to viewers of the website and other content, designated
27
Premium content
28
000079
,.
'
'
1
2
3
4
5
6
7
8
9
10
11
J
12
13
14
m
>
15
16
..
17
<
18
19
20
21
22
23
24
25
26
27
subscrlption fees are a main source of revenue for Plaintiffs business. Plaintiff obtains the
content from contracted content providers Including Defendant John KaraOs.
5.
On or about June 18, 2012 Pregame LLC entered into a Content Services
Agreement ("the Agreemenr) With Defendant Karans, and In or around 2009 Pregame LLC
entered Into a Social Network Addendum ("the Addendum") With Defendant Karalls.
The
Agreement and the Addendum are attached to Pregame UC's Motion for Temporary
Restraining Order and Prefuninary Injunction as Exhibits "A" end
6.
e, respectively.
tennlnatlng in June 2017. The Agreement followed a previous slmftar contract between the
parties which was replaced by the Agreement The parties have operated under the current and
previous contracts tor a period of several years without incident
7.
license to "publish, display, reformat and dlstnbute" all sports related content generated by
Defendant KarafJS, as weU as the right to bundle such content With that of other providers. In
addillon, the Agreement provides thai Karalis
relationship With Pregame LLC, that Karalls will not undertake any conflicting obligations, and
that Karalis Will not attempt
or pregame. com. The Agreement further restricts Kalarls' use of the Nom De Gambling 'Vegas
Runner".
6.
holder of any Social Site accounts, including Twitter handles, utiflzed by Defendant Karans in
connaction With the production of content Karalls was further obligated to provide the current
username and pa$SWOrd for all such accounts to PlalnHfl and was prohibited from changing safd
passwords Without Plaintiffs prior written consent Karalis was also forbidden from referencing
any third party competitor to pregame.com on Social Sites without prior written consent of the
Pregame UC. The Addendum includes a liquidated damages clause specifying damages for
each and every violation of the provisions outlined In this paragraph.
28
2
000080
..
2
3
4
5
6
7
8
9
10
11
...
12
13
9.
On or about June 18, 2014 Defendant Karalls attempted to "resign from his
contractual relationship with Pregame LLC. Upon information and belief Karalis was induced to
do so by an offer from a direct competitor to Pregame LLC. Since that time Karalis has engaged
In conduct in direct violation of his obligations and Pregame LLC's rights under the Agreement
Those violations have been ongoing and continuous and have caused substantial damage to
Pregame LLC. The nature of the damage to Pregame LLC is imaparable inasmuch as the
content which Karalis is obligated to provide to Pregame LLC for distribution is being provided to
a competitor.
"undistributed" and the value of that content Is lost to Pregame LLC forever. in addition, the
going disclosure of information related to Pregame LLC by Karalls further results in irreparable
harm as such information, confidential and otherwise, cannot be retrieved once made pubfic by
Karalls
1o.
14
.z
0
<
15
16
17
18
Oil-
SUBSCRIBED
SWORN to
before me this 00
day of
June, 2014.
19
NOTYPUBLIC
20
21
22
23
24
25
26
27
28
3
000061
EXHIBIT "8"
EXHIBIT "8"
000082
Page I of I
Skio to Main Content LOQOut Mv Account Search Menu New District CIVl!ICrimmal Search Refine
Search Close
REGISTER OF ACTIONS
CASE No. A-14-703627-C
Location: Department 4
FAATY
Countor
Claimant
Karalls, John
Lead Attomeys
Donn W Prokoplua
Retained
702-474.Q501l(W)
Countor
Pregame LLC
Defendant
J&ffrey L. Galliher
Retained
Defendant
702243-52B2{W)
Karalls, John
Donn W Prokopius
Retained
702-474.Q500(W)
PlalnUft'
Pregame LLC
Jaffrey L. Gallihor
Retained
702243-52B2{W)
Plaintiff's Motfon
0911112014 10:00 AM
Also PfQS8nt RandaD BIJ58c:k, Representative for Plaintiff
Pregsme UC; Es1ela Sandoval, Private Investigator AI the
Court's request. Mr. Gal6her detailed the steps ta)r.en to provide
proper service in this case as follows: A$ to the serving of !he
Summom; and Complaint and lhe TemporBfy Res1Jainillg Order,
Mr. Karalis was served by E5tela warren, a Private Investigator.
on Aug\lst 16, 2014, with proof of the service documanled in a
vldeo taken by Ms. warren and n a
affidavit
Additionally, Mr. Prokoplus rnacle an appearance in !his case.
and was subsequently emailed a ccpy of the Summons and
Complaint, the Temporary Restraining Order, and the Motion for
Preliminary Injunction, with Mr. Galliher receiving a read reteipt
for his email from
Mr.
afso noted
that he sent a ccpy of Ule Summons and Complaint. the TRO,
and the Motion l'or PretirrWmuy h'liunc:tion lC Mr. ProkopWs via
United Stittes Mall. Mr. Galliher presented his email along with
the read receipt to the Court documents marked as an e.xl'libit
(see wor1tSl'lecl). COURT accepted Mr. GaUihe(s
repraentations regarding service and indicated that Mr. GeJiiher
c:outd proceed with the instant Motion. Mr. Galliher argued in
support of the Motion, stating that Mr. Karalis was providing his
services to a competing t:QI'T1Pa"Y while h.is cantmd with
LLC was stiH fn effect. Furthennore, Mr. Karans
chaRged lhe password to Pregame LLC's. Twitter handle, end
continued co have sole and exdusiva c:ontrol over it. despite it
being the: Bxc:IU$ive inteltectvat property of Pregame LLC. As
part of the Preliminary Injunction, Mr. Galliher requested Mt
Karails be ordered CO provide Prega.rne LLC with the password
to Pregame LLC's Twitter ac:count COURT ORDERED Motion
GRANTED; Defendant John Karalis IS hereby ORDERED to
provide the password for Pregame LLC's Twitter account to
Pregame LLC. Mr. Galliher to prepare the Order
Parties Present
000083
EXHIBIT "9"
EXHIBIT "9"
000084
Jeff Galliher
1/fo* (
rom:
<..
Sent:
To:
Subject:
Attachments:
Mr. Prokopius:
Please see my attached correspondence and a file-stamped copy of the court's Preliminary Injunction entered by Judge
Earley today.
Regards,
AT
LAW
This massage and any attachments are intended only for the use of the individual or entity Ia which thoy are addressed. If the mador of this message or an
utlachment is not the intended recipient or lhe emp!oyca or agunt responsible for deh ... ering I he message or attachment to lilD intended rccipie!ll you are hereby
notified that any dissemination, distrtbulion or copying of this message or any attacJunent Is strictly prohibiletl. If you tlave received !his communication In en or.
please noUfy us lmmedialely by replying to the sender. The information transm1tled in this message and any atlachmenls may be privileged. fs intended only for
the pen;onal and confidential use of the intendeQ: recipiunls, and is covered by lhe Ele<:tJonic Communications Privacy Act. 16 U.S.C. 25102521
000085
"
ATTORNEYS
AT
LAW
Rr:PLY Ta:
her, Esq.
JLG:ta
Jeff Galliher
! ,..rom:
Subject:
Attachments:
Importance:
High
Sent:
To:
AT
LAW
000087
ATTORNEYS
AT
LAW
JEFFREY
l. GAWHER, Eso..
igaltiher@dennellivlnsAAar.com
JLG:ta
33tJl N, BUITAlO DAI'v, SUITE 195 CiiJ LAS VaJAB, NV S'E1129 tl WWW.OENNCT"lWINSPEAA,COM li!
r.c.x:
702:,939,11) J
000088
Jeff Galliher
From:
Sent:
To:
Subject:
Attachments:
My correspondence is attached.
LAW
This message and any attachments are intended only for lhe use of the individual or entity to which Uwy are addressed. If the reador of this message or an
anachmenl is not the intended recipient or the employee or agent responsible for delivering the message or altEJ.chment to lhe intendod recipient you are tmreby
or copying of this message or any attachment Is strictly prohibited, If you have received this communicalion In error,
nolffied that any dissemination,
please notify us immecnately by replying to the sender. The infonnation transmihed in this messOJgo and o.ny attachments may be privileged. is intended onfy for
the personal and confidential use of the intended racipienls., and is covered by the Electronic Communiciltions Privacy Act. 18 U.S.C. 25102521.
I am in receipt of your letter. I have not even had the chance to meet with my client to get that information. He will be
in the morning. I will correspond at that time.
Sincerely,
Donn W. Prokopius, Esq.
From: Jeff Galliher [mallto:lgalllher@dennettwlnsoear.coml
Sent: Wednesday, September 17, 2014 5:28PM
To: general; Donn Prokoplus
Subject: Pregame LLC v. Karalis
Importance: High
Please see my attached correspondence.
000090
\;\[IN SPEAR
A T T C R N E V S
This message aod any allachments aro intended ol'l/y ror rna use of the lndividual'or en!rty to vlhi<:h they am addressed. If the reader of !his message or an
aHachmenlls not the i!'ltended recipient or the employee or agent respoi'ISib!e for de!ivonng the rncssage or attachment to the mtendcd reCipien1 you are hereby
notified that any dissemsnation. distnbution or copying of lhi message or any attachment ts striclly prohtbitcd. If you have rQCeived this communication in error.
please notJfy us Immediately by replying to the sender. The information tlansmilled in lh!S messago ana any allachmenls may be privllegod, is intended only for
the personal and confidential use of the intended recipie!'lts . .ond ls covered by ttle Efeclronic Communications Privacy Act. 18 U.S.C. 2510-2!121
000091
ATTORNEYS
AT
LAW
I=ICPI..V TO:
JeFFREY
lgaffiher@denngltw!nseear.oym
September 19,2014
!::
11 13
JLG:ta
LAI:l VCGAt:l. NV 89 I 29
000093
EXHIBIT "11"
EXHIBIT "11"
000094
Jeff Galliher
From:
Sent:
To:
Cc:
Subject:
> I have spoken with Mr. Karalis and he is currently attempting to re establish (if possible)
the account and will provide all passwords to me and I will forward the same to you by this
afternoon.
)
000095
EXHIBIT "12"
EXHIBIT "12"
000096
hnps://tw iuer.com/Greek_Gambler
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000101
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10/312014 10:26 AM
EXHIBIT "13"
EXHIBIT "13"
000102
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justin @buckeyewaz Sep 30
@Greek_ Gambler love your info, keep up the good fight #freeVR
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000103
I of I
10/l/2014 10:28 AM
EXHIBIT "14"
EXHIBIT "14"
000104
Jeff Galliher
Donn Prokopius [Donn@PANOBLAWYERS.COMJ
Thursday, September 18, 2014 3:24PM
Jeff Galliher
RE: Pregame LLC v. Karalls
From:
Sent:
To:
Subject:
Dear Mr. Galliher:
I am in receipt of your letter. I have not even had the chance to meet with my client to get that information. He will be
in the morning. I will correspond at that time.
Sincerely,
Donn W. Prokopius, Esq.
To:
Importance:
High
r'
AT
LAW
This message and any altnchmcnts ore intended only for the uso of lhe individual or entrty to wh1ch they nro .1ddrosscd. If the render of lfl!s messnge or an
artadnnent is not tho !ntonded recipient or lhf) employee or agellf responsible for da!ivonng the moss11gu or n!lachmcnt to tho mtcm:led
you are hereby
notified that any dlssommalion. distribution or copymg of !hi$ message or any allacomcm 1s stricUy proM)tted. II yo\1 h<tvc recatVed this communication u1
please notify us immediately by replying to the sencter_ Tho infonnation transmllted Ullhts message nnd <lnY aUachments may be privileged, is intended only fo1
the personal and confidential use of the Intended red plants. and Is covered by the ElectrOnic Communications Pnvacy Act, 16 U.S.C. 25102521.
000105
EXHIBIT "15"
EXHIBIT "15"
000106
- - - - -.......................
----
TO:
john Karalis
0055 Sapphire Cove Avenue
Las Vegas, Nevada 89117
NIXIE
891172030-lN
OB/14/14
RETURN TO SENDER
ID!CLAIMED
UNABLE TO FOIUIARD
RETURN TO 8:S:Nl1ER
m.. u.l.l.llolol.lllllullolul.llulllulllulllulllolollolollloltll
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A Slgnaturv
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B. Received by ( Prlnt&d Name)
D. Is delivery address differtlfll from item 1?
0No
If YES, enter delivery addi'EISS below:
3. Service Type
Mall
0Regls1erod
0 Insured Mall
2. ArUele Numbor
(TfBIJsfer from S91'\1fce la
.:
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.\
Ill II 11111111111111111111111111111111111
TO:
john K<Jmlis
4575 Dean Martine Drive
Unit 3208
Las Vegas, Nevad<l 09103
ij.91032043lN
06/0l/H
RETURN TO SENDER
INSUFFICIENT ADDRESS
UNABLE TO FORWARD
RETURN TO SENDER
lllulf,f,f,lf,f,f,flflf,lf,fulollnllfnllfnlllulll,l,lf,l,lll,l,fl
AUG 0 4 2014
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'
EXHIBIT "16"
EXHIBIT "16"
000111
https://twitter.com/Greek_7777
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#xfactor
000112
I of I
1013/20142:11 PM
EXHIBIT "17"
EXHIBIT "17"
000113
Jeff Galliher
From:
Sent:
To:
Subject:
v. Karalis)
Dawn E. Valencia
Process Manager, Las Vegas
First Legal Investigations
dvalencia@flrstlegalinvestigations.com
vegprocess@firstlegalinvestigations.com
702-6714002, EXT 3731 (0)
702974-2223 (F)
www.FirstlegaiNetwork.com
First Legal Investigation Licenses CA PI: 24171 AZ PI: 1551710 NV PI-PS: 1452
CONFIDENTIALITY NOTICE: This message and any attachments are confidential to the sender and addressee of this email and may be privileged information. If you received this email in error, do not copy, forward, disclose or use any part
of the message.
000114
EXHIBIT "18"
EXHIBIT "18"
000115
1
2
3
4
5
8
7
DISTRICT COURT
PREGAME LLC,
10
vs.
12
JOHN KARALIS,
">
15
z ..
..
Defendant.
AFFIDAVIT OF ESTELA SANDOVAL
1.
16
17
20
2.
3.
4.
27
28
That on August 16, 2014 I served defendant John Karalls with a Summons,
Complaint and Order Extending Temporary Restraining Order in the form attached hereto.
5.
25
28
Affiant is over the age of 18 years and can testify to the matters herein of her own
23
24
That on or about August 15, 2014 Elite Investigations was retained by counsel for
the Plaintiff in this action to effectuate service upon the Defendant after a previous service
21
22
number873.
18
19
Case No:
Dept. No:
13
14
Ill a:
11
1- "'
1- z
Plaintiff,
That if called upon to testify under oath I could and would testify to the foregoing
Ill
Ill
000116
6.
Estela Sandoval
Nevada Private Investigator #873
5
6
..
J ,,J..!jef- - - - - - - - - - -
7
8
9
10
11
12
13
14
m
>
15
16
1- w
1- z
z Q
z "
0Ld ".
17
18
19
20
21
22
23
24
25
26
27
28
2
OOOi i 7
EXHIBIT "19"
EXHIBIT "19"
000118
1
2
3
4
5
DISTRICT COURT
PREGAME LLC,
Plaintiff,
10
11
..
12
... >"
... z
Ill
z
z .
Ul ..
0
15
vs.
JOHN KARALIS,
13
Defendant.
14
16
17
18
19
Case No:
Dept. No:
Affiant is an attorney duly licensed in the State of Nevada and employed by the
Affiant is over the age of 18 years and can testify to the matters herein of his own
That the following information is provided for the Court's consideration in support
20
of Plaintiffs request for an award of attorneys fees and the calculation of the same under
21
22
4.
That as a direct resuH of Defendant John Karalis' failure to comply with court
23
orders in this case it has been necessary for me to expend in excess of ten hours of my time,
24
25
5.
Affiant has been practicing law since 2003, including as lead counsel in several
26
complex commercial litigation cases and have served as a partner in three law firms. Affiant has
27
completed more than 15 jury and bench trials as first chair as well as dozens of arbitrations and
28
000119
1
2
3
4
5
mediations and as appellate counsel in Federal and State Court appeals. Affiant is rated as
"AV!Preeminent" by Martindale-Hubbell in the area of Litigation.
6.
including the filing and prosecution of a Temporary Restraining Order, a Preliminary Injunction
and a Motion for Contempt.
6
7
7.
B.
12
That if called upon to do so I can and will testify to the same under oath in any
10
11
8
9
The prosecution of this case has required substantial time and effort to date,
9.
That I hereby swear and attest that the foregoing is true under the penalty of
10.
perjury.
13
14
>
11-
z
15
Ill
16
17
18
z 0
Jeffrey L.
Nevada B
SUBSCRIBED and SWORN to
before me this 6th day of
October, 2014.
Ill
19
20
21
22
23
24
25
26
27
28
2
000120
Electronically Filed
10/07/2014 02:04:24 PM
2
3
" 4
5
6
7
DISTRICT COURT
9
10
11
<
12
.J
<
m
>
1- w
1- z
bJ
13
14
vs,
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
15
z c
z ..
16
17
Defendant.
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
18
Counterclaimant,
..
<
19
20
21
22
23
COMES NOW the Counter Defendant, PREGAME LLC, by and through their attorneys,
24
DENNETT WINSPEAR, LLP, and in Answer to the Counterclaim on file, admits, denies and
25
alleges as follows:
26
Ill
27
Ill
28
1
2
3
4
5
6
7
8
9
10
11
12
.J
>
11- "z
Ill
.
Ill .
0
z
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13
1.
does not have sufficient knowledge or information upon which to base a belief as to the truth of
the allegations contained therein and upon said ground denies each and every allegation
contained therein.
2.
does not have sufficient knowledge or information upon which to base a belief as to the truth of
the allegations contained therein and upon said ground denies each and every allegation
contained therein.
4.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
5.
allegations contained therein constitute conclusions of law and thus require no answer, however,
to the extent that they contain allegations of fact, answering Defendant denies each and every
allegation contained in said paragraphs.
7.
that it does not have sufficient knowledge or information upon which to base a belief as to the
truth of the allegations contained therein and upon said ground denies each end every allegation
contained therein.
B.
28
1
2
3
4
5
6
7
8
9
10
11
<
"
..
13
14
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15
that the allegations contained therein constitute conclusions of law and thus require no answer;
however, to the extent that they contain allegations of fact, answering Defendant denies each
and every allegation contained in said paragraphs.
11.
18
19
20
21
22
23
24
25
26
27
the allegations contained therein constitute conclusions of law and thus require no answer;
however, to the extent that they contain allegations of fact, answering Defendant denies each
and .every allegation contained in said paragraphs.
13.
does not have sufficient knowledge or information upon which to base a belief as to the truth of
the allegations contained therein and upon said ground denies each and every allegation
contained therein.
16
17
COUNT ONE-CONVERSION
14.
answers to Paragraphs 1 through 22 of The Counterclaim as if fully set forth at this point and
incorporates them herein by reference.
15.
allegations contained therein constitute conclusions of law and tihus require no answer; however,
to the extent that they contain allegations of fact, answering Defendant denies each and every
allegation contained in said paragraphs.
16.
that the allegations contained therein constitute conclusions of law and thus require no answer;
28
1
2
however, to. the extent that they contain allegations of fact, answering Defendant denies each
and every allegation contained in said paragraphs.
3
4
5
6
7
8
9
10
18.
answers to Paragraphs 1 through 27 of The Counterclaim as if fully set forth at this point and
incorporates them herein by reference.
19.
that the allegations contained therein constitute conclusions of law and thus require no answer;
however, to the extent that they contain allegations of fact, answering Defendant denies each
and every allegation contained in said paragraphs.
11
<
"
<
12
13
14
>
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1- z
bJ
z 0
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bJ
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15
16
17
18
19
20
21
22
23
24
25
26
27
20.
answers to Paragraphs 1 through 30 of The Counterclaim as if fully set forth at this point and
incorporates them herein by reference.
21.
allegations contained therein constitute conclusions of law and thus require no answer; however,
to the extent that they contain allegations of fact, answering Defendant denies each and every
allegation contained in said paragraphs.
22.
does not have sufficient knowledge or information upon which to base a belief as to the truth of
the allegations contained therein and upon said ground denies each and every allegation
contained therein.
24.
28
1
2
3
allegations contained therein constitute conclusions of law and thus require no answer; however,
to the extent that they contain allegations of fact, answering Defendant denies each and every
allegation contained in said paragraphs.
5
6
7
26.
answers to Paragraphs 1 through 36 of The Counterclaim as if fully set forth at this point and
incorporates them herein by reference.
8
9
10
11
12
.J
"
1-
1-
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27.
conclusions of law and thus require no answer; however, to the extent that they contain
allegations of fact, answering Defendant denies each and every allegation contained in said
paragraphs .
COUNT FIVE-INVASION OF PRIVACY
14
16
28.
1.11
19
20
answer; however, to the extent that they contain allegations of fact, answering Defendant denies
each and every allegation contained in said paragraphs.
AFFIRMATIVE DEFENSES
22
23
Counter-claimant has failed to state a claim upon which relief can be granted
24
25
27
states that the allegations contained therein constitute conclusions of law and thus require no
21
26
answers to Paragraphs 1 through 48 of The Counterclaim as if fully set forth at this point and
17
18
Answering Paragraph 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48 of The
13
15
Counter-defendant is not legally responsible for the acts and/or omissions of those
Counter Defendants named herein as fictitious and DOE or ROE Counter Defendants.
Ill
28
1
2
3
4
5
6
7
8
9
10
11
<
...
12
13
<
>
....
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Ill
z 0
z
Ill
<
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
it.
2
3
4
5
6
7
8
9
10
11
<
12
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2.
3.
For such other and further relief as this Honorable Court may deem just and
13
14
DATED this
15
16
DENNETIWIN
17
18
19
20
21
22
23
24
25
26
27
28
CERTIFICATE OF SERVICE
1
2
Pursuant to NRCP 5(b) and EDCR 7.26, I certify that on this date, I served the foregoing
Facsimile
6
7
Mail
)(
Electronic Service
8
9
10
11
3
12
<
13
>
1- w
1- z
Iii
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Iii
0
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Electronically Filed
10/13/2014 10:54:42 AM
'
ORO
JEFFREY L. GALLIHER, ESQ.
Nevada Bar No. 008078
2
jgalli11er@dennettwinspear.com
DENNETT WINSPEAR, LLP
' 3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-11 DO
(702) 839-1113
5 ! Fa<:simile:
6
COURT
CLARK COUNTY, NEVAD'\
PREGAME LLC,
10
Plaintiff.
11
3
<
vs.
12
>
<
11-
z
z
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u
13
._J'of.OJ
ORDER OF CONTEMPT
15
COMES NOW. the Court, having conducted a hearing on its Order to Show Cause l
16
17
<
14
7.
I
I
18
issued on August 29, 2014, Plaintiff appearing by counsel, Jeffrey L Galliher. Esq., and by its
i.
!:-
representative Randall Busack. and Defendant appearing through counsel, Donn Prokopius,
Esq., and in person, and finds as follows:
19
FINDINGS OF FACT
20
That on August 1, 2014 this Court issued a Temporary Restraining Order in this casr;
21
prohibiting Defendant from utilizing in any way the Twit!f!f handle "@VogasRunner" and the Nom
22
de Gambling "Vegas Runner" or any derivative form thereof.
23
I
'
i
That on August 14, 2014 this Court issued its order extending the Temporary Restraining
24
Order through August 29,2014.
25
That on August 16, 2014 Defendant was personally served v.1U1 the extended Temporary
26
Restraining Order.
27
That between August 16, 2014 and August 28, 2014 Defendant continued to utilize the
28
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1
3
4
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8
9
10
11
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13
14
15
16
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17
18
19
2G
21
22
23
24
25
26
27
was willfuL
I
I
CONCLUSIONS OF LAW
That Defendant's uliliZ<>tion of the Twitter handle "@VegasRunner" during said period
That the Defendant's utilization of the Twitter handle "@Vef)asRunner" during said period
Civil contempt "consists or a party's disobedience to a specific and ddinHe court order by
I
l
failure to take all reasonable steps within the party's power to comply." RenrJ Air Raclnq Ass'n v. \
McCord, 452 F.3d 1126, t1:lO (9th Cir. 2006).
v.
'
Lamb v. Lamb, 83 Nev. 425 (HlG?) ("The pmvr,of courts to punish forcomcmpL.is inherent.)
A district court may enforce an injunction by subsequent contempt proceedings. City
Council v. Reno Newspapers, 784 P.2d 974 (Nev. 1989) "Upon the answer and evidence taken,
the Court ... shall determine whether the person proceeded against is guilty or the contempt
charged: See NRS 22.100(1). If contempt is found, in addition to any appropriate penalties,
"the court may require the person to pay the party seeking to enforce the ... order, the
reasonable expenses. including, without limitation, attorney's fees incurred by the party as a
result of the contempt." NRS 22.1 00(3).
A party claiming civil contempt must demonstrate that (1) the alleged contemnor violated
a court order, (2) beycnd subslan!ial compliance,
interpretation of the order, (4) by dear and convincing evidence. United States v. Bright, 596
F.3d 683.694 (9th Cir. 2010) "The court has wide latitude in determining whether \here has been'
con\emp\llOUs defiance of an orderi' Gifford v. Heckler, 741 F.2d 263, 266 ({th Cir. 1984)
!T IS HEREBY ORDERED, ADJUDGED AND DECREED that DeffJndant John Karalis is
hereby held in civil contempt of this Court's duly issued Order in the form or the Temporary
Restraining Order as extended.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant John Karalis
28
shall pay a fine of $1.000.00 (oncHhousand dollars) with such fine to be stayed pending the
outcome of Defendant's Motion to Rehear/Reconsider or Set Aside the Preliminary Injunction
issued on September 11, 2014 currently set for hearing on October 30, 2014.
5
6
7
1 1 I '07 '} .b
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Submitted by:
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DENNETT
z
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20
I, '
By
;,
---......_ ......
JEFFREY L GAL):.IHER, ESQ.
Nevada Bai,
Q081J78
3301 N. Buffalo Drive, Suite 195
Las Vegas. Nevada 89129
(702) 838-1100
Telephone:
Facsimile:
(702) 838-1113
Attomeys for Plaintiff Pregame LLC
21
Approved as to form:
22
<
LLP
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l/
17
18
19
23
24
25
26
27
No.
\::-:', -...........
'
'.
... _
By
DONN W. PROKOPIUS, ESQ.
Nevada Bar No. 006460
' 931 S. Third Street
Las Vegas, NV 891 01
Fax No. 702-951-8022
........_, -----------
28
3
I
(
Electronically Filed
03/02/2015 09:41:01 AM
1
2
3
4
5
6
DISTRICT COURT
7
CLARK COUNTY, NEVADA
8
9
10
11
Plaintiff,
VS,
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14
15
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JUDGMENT
Defendant
JOHN KARALIS, an Individual, DOES 1 through
20; ROE COMPANIES 1 through 20; and ROE
CORPORATIONS 1 through 20, inclusive,
Counterclaimant,
18
19
w
...
.P
JUDGMENT
2J
24
submitted to the Court by Jeffrey L Galliher, Esq., of Dennett Winspear, LLP, counsel for Plaintiff
25
PREGAME LLC, no opposition having been filed by DEFENDANT John Karal\?,the Court' having
26
considered the pleadings and pursuant to EDCR 220, NRCP 698 and NRS 17,115, finds as
27
follows:
Wv{lo28
r;:;xw m zuc15
1
2
3
4
5
6
THE COURT HEREBY FINDS that on October 13, 2014 the Court's predecessor {Dept.
IV) entered its Order of Contempt against Defendant John Karalis in this case. After holding
Defendant Karalis in Contempt of Court the Court further awarded Plaintiff PREGAME LLC
attorneys fees in the amount of $6,000.00 and costs in the amount of $1,137.96 with payment of
the same stayed until after the Court's ruling on Defendant's Motion to Rehear/Reconsider or Set
Aside the Preliminary Injunction issued on September 11, 2014.
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THE COURT FURTHER FINDS that on December 10, 2014 an Order Denying Motion to
Rehear/Reconsider was filed. Pursuant to that Order Defendant Karalis was ordered to pay the
award of attorneys fees and costs to Plaintiff in the total amount of $7,137.96 and the $1,000.00
fine imposed by the court within thirty days from the date of Notice of Entry of that order. On
December 11, 2014 Notice of Entry of Order Denying Motion to Rehear/Reconsider was filed.
Accordingly, on January 12, 2015 the time for Defendant to remit the award of attorneys fees
and costs to Plaintiff and pay the fine to the Court had passed.
Ill
Ill
Ill
III
Ill
Ill
Ill
Ill
Ill
III
III
Ill
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Ill
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award of attorney's fees in the amount of $6,000.00 and award of costs in the amount of
$1,137.96 are reduced to Judgment and that Judgment is hereby entered against Defendant
John Karalis and in favor of Plaintiff PREGAME LLC in the total amount of $7,137.96, with post
judgment interest to accrue on the same at the statutory rate until such judgment is paid in full.
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Submitted by:
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.G
Nevada
No.
3301 N. B ala Drive, Suite 195
Las Vegas, Nevada 89129
(702) 839-1100
Telephone:
Facsimile:
(702) 839-1113
ATTORNEYS FOR PLAINTIFF
PREGAME LLC
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1
CERTIFICATE OF SERVICE
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Pursuant to NRCP 5(b) and EDCR 7.26, I certify that on this date, I served the foregoing
JUDGMENT on all parties to this action by:
Facsimile
)(
Electronic Service
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Electronically Filed
03/10/2015 03:52:45 PM
'
ORDR
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DISTRICT COURT
CLARK COUNTY, NEVADA
PREGAME, LLC,
Plaintiff,
v.
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JOHN KARALIS,
Defendant.
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_ _ _ __ __ _ _ __ _!
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TO:
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YOU ARE HEREBY ORDERED TO APPEAR before the District Court, Department 24, oJ
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the 14th day of April, 2015, at 9AM, at 330 South Third Street, lith Floor, Courtroom 116, Las Vegas
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NV, 89101, and to show cause, if any, why you should not be found in contempt of the Court fo
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failure to pay the ONE THOUSAND DOLLAR ($1 ,000.00) fine pursuant to the attached October 13
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DO
A703627
24
14
,.
CASE NO.
DEPTNO.
JOHN KARALIS
Failure to appear may result in a bench warrant being issued for your arrest and additional fine
being assessed.
DATED: MARCH 9, 2015