Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 1 of 31

UNITED STATES DISTRICT COURT

SO UTHERN DISTRICT O F FLORIDA
Case No.15-61717-CV-W ILLIA MS

DO N KING PRODUCTIO NS,INC.,

Plaintiff,
VS.

SHANE MOSLEY,etaI.,
Defendants.
/

ORDER
THIS M ATTER is before the Coud on Plaintiff's em ergency m otion fortem porary

and prelim inary injunctive relief(DE 8). The Coud conducted a hearing inthis matteron
August19,2015 and August20,2015.

1. FACTS
A . The History ofthe Parties

After being introduced to Don King in 1999, 27 year-old Ricardo M ayorga

('
JMayorga'')signed a PromotionaiAgreementwith Don King Productions,lnc.(''DKP'')in
Decemberof2000. (See Mayorga v.Don King Productions,Inc.,Case No.09-22603
(S.D.Fla.2009)(hereinafter,Mayorga 1)atDE 1 !115).1 DKP and Mayorga continued
theirrelationship assetfodh invarious agreements forthe nexteightyears. (Mayorga I
atDE 1!118). On June 20,2008,Mayorga and DKP entered into anotherPromotional
1The Coud may take judicialnotice on its own offacts thatare ''notsubjectto reasonable
dispute'
'because they 'can be accurately and readily determ ined from sources whose accuracy

cannotreasonably be questioned.' Fed.R.Evid.201. Assuch,the Coud takesjudicialnotice

ofthe records ofthis coud.

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 2 of 31

AgreementforDKP to promote Mayorga in future boxing matches. (Mayorga latDE 1

% 19). Atthis juncture in his professionalIi
fe,Mayorga had enjoyed a successfuland
rem unerative careerw ith DKP and won m ultiple cham pionships.

O n Septem ber 1,2009,Mayorga filed sui

tagainst DKP seeking to setaside the
2008 Prom otionalAgreem entand questioning w hetherthatAgreem ent d'stillgoverned

the relationship between M r.Mayorga and DKP.''(Mayorga IatDE 1 !142). In thatsuit,

M ayorga contended thatalthough he had fully perform ed underthe 2008 Prom otional
Agreem ent,DKP had breached itby failing to offerM ayorga three bouts between June

20,2008 and June 20,2009. (Mayorga IatDE 1 111136-37). Mayorga al

so filed an
emergency motion for declaratory relief and an affidavit in support of that m otion.

(Mayorga Iat DE 2). Mayorga neverserved DKP and the complaintwas voluntarily
dism issed. One m onth Iater,on O ctober 1,2009,DKP and M ayorga entered into yet

another Promotional Agreement. (DE 1 11 12.

, Ex.

The 2009 Promotional

Agreem ent,w hich contains an affidavit bearing M ayorga's signature,was signed by

M ayorga and Dana Jam ison,the SeniorVice President ofBoxing O perations forDKP,

and notarized by Grace Johansson.(DE 1-1 at10).

Thereafter,on M ay 7,2010,DKP filed suit againstM ayorga in Broward County

CircuitCoud seeking to enjoin him from padicipating in a mixed martialarts (''MMA'')

fightthatDKP was notpromoting. (DE 1 11$ 18-19). The Broward coud granted DKP'S
requestfora preliminary injunction and barred Mayorga from padicipating in thatMMA
fight. (DE 1 !121.
,Plaintiff's Ex.5). The coud found that there was a substantial
Iikelihood ofsuccess on the m erits as demonstrated by the record and paragraph 16 of
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the PromotionalAgreement. (See Plaintiff's Ex.5).The courtalso ruled thatthere was

''threatened injury to petitioner (reputation,ability to controlfights for Mayorga and

othersl''and thatirreparable harm existed 'as stipulated by Mr.Mayorga in paragraph
14''ofthe Agreement. (Id.). As a result,the MMA fightdid notoccur. The injunction
and cancellation of the M MA fight were repoded in boxing publications and were

''generally knownthroughoutthe boxing industry.''(DE 1:122).

O n March 12, 2011, M ayorga padicipated in a DKp-prom oted professional
boxing m atch againstM iguelCotto. Following thatbout,and his Ioss to Cotto,M ayorga
announced his retirem entfrom professionalboxing and inform ed Don King and Dana

Jam ison ofhis retirement. (DE 11123.

,JamisonTestimony). But,in2012,Mayorga and
DKP signed an ''Addendum To Bout Agreem ent'' dem onstrating their intent that

M ayorga box a suitable opponenton October27 orNovem ber17,2012 in Venezuela.

(Defense Ex.2). The 2012 BoutAddendum,which was signed by Mayorga,reaffirms

the 2009 Prom otionalAgreem ent and states that the Agreem ent rem ains in fullforce

and effect.(Id.j.The 2012 boutnevermaterialized. Between 2011and 2014,Mayorga

padicipated in various M MA fights which were notprom oted underthe aegis ofDKP.

On July 10,2014,Mayorga metwith DKP atDKP'S officesin Florida. (DE 1!125.

,
Mayorga Testimony'
,Jamison Testimony). Thatday,Mayorga signed a Memorandum

ofUnderstanding ($'MOU'')and an Addendum to the 2009 PromotionalAgreementwith

DKP,which wasco-signed by Dana Jamison and notarized by Grace Johansson.(DE 1

111125-26). Following the execution ofthat agreement,Mayorga padicipated in two

professionalboxing m atches thatwere notprom oted by DKP - one on Septem ber27,

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 4 of 31

2014 in Oklahom a City and one on Decem ber 20,2014 in Nicaragua. DKP sent a

cease and desistletterto the prom oterofthe O klahom a Ci

ty fightbut did notseek to

enjoin thatfight. There is no evidence in the record thatDKP took any stepsto prevent
the Decem ber20,2014 fight.
O n July 11,2015,ESPN repoded that M ayorga and Shane Mosley - a former
boxing cham pion - would be padicipating in a m atch prom oted by M osley on August29,

2015,atThe Forum in lnglewood,California.(DE 8 at52-53). ln response,onJuly30,

2015, DKP sent a cease and desist Ietter to Mosley asserting that DKP has the
exclusive worldw ide rights to promote aII professional boxing m atches involving

Mayorga. (DE 1-4 at2-3). DKP contended thatMosley's actions and the August29,
2015 boutconstituted tortious interference with DKP'S contractwith Mayorga.(Id.). On
August3,2015,M osley,M osley Prom otions,and GoBox Prom otions responded to the
cease and desistIetter,asseding thatM ayorga's agreem entwith DKP expired on June

20,2013 and thatitwas neverrenewed.(DE 15-2 at4-5).The Ietter,although notsent

by M ayorga,claim ed that DKP had breached the Prom otionalAgreementby failing to

offerMayorga three bouts peryear and was therefore invalid. (Id.j The Ietteralso
pointed to the 2014 Oklahom a City and Nicaragua fights as evidence that Mayorga is

currently an independentprofessionalfighter. (/d.)

On August, 13,2015,DKP filed the instant action against Defendants Shane
M osley, Ricardo M ayorga, Sugar Shane Mosley Prom otions, Inc., and GoBox

Promotions Inc.,asseding three claims: (1) Todious Interference with Contractual

Relationship againstMosley,Mosley Promotions and GoBox Promotions'
,(2)Breach of
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ContractagainstMayorga'
,and (3)Injunctive Reliefagainsta1IDefendants. The next
day,DKP filed anemergencymotion seeking a preliminary injunction.(DE 8).
B.Term s ofthe 2009 Prom otionalAgreem entand the 2014 Docum ents
The O ctober1,2009 Prom otionalAgreem entprovides,in pertinentpart:
Fighter hereby grants Prom oterthe sole and exclusive right
to secure and arrange aII professional boxing bouts. . .
requiring Fighter's services as a professionalboxerand to
secure,arrange and prom ote aIIsuch Bouts.

(DE 1-1 at 2, Section 1. Promotion). According to the terms of the Promotional

Agreem ent,M ayorga shallnot padicipate ''in any bouts otherthan Bouts prom oted or
co-promoted by Prom oter or for w hich Prom oter has granted Fighter prior written

permission.'' (DE 1-1 at4,Section XI.Exclusivity). Mayorga also prom ised that he
would notrenderhis services as a professionalboxerto any person orentity otherthan

DKP. (/(f).
The 2009 Agreement was to run 'for an initial term of three (3) years,'
com mencing on October 1, 2009 and l
dexcluding any tim e that Fighter is unable to

compete due to injuryorothercause.''(DE 1-1at2,Section II,Term).Atthe conclusion

ofthe three-year term ,DKP had two separate one-yearrenewaloptions,w hich would

automatically take effect unless DKP decided otherwise. (Id.) The renewalterms

excluded ''anytimethatFighteris unable to compete due to injuryorothercause.''(/d.).

At DKP'S 'sole election, this Agreem ent m ay be suspended during the period of
Fighter's tem porary retirem ent, if any, but shall becom e fully operative if and w hen

Fighter resumes his professional boxing career.'' (DE 1-1 at 4, Section VII.
Disability/Retirement). Therefore,ifthe 2009 PromotionalAgreementremained in effect
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Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 6 of 31

uninterrupted following its execution,itappears thatitwould have expired on O ctober1,

2014.

Underthe 2009 Agreement,DKP agreed to offerM ayorga the rightto participate

in atIeastthree bouts each year. (DE 1-1 at1-2,Section 111.Bouts). The boutoffers
could be com m unicated to M ayorga in any m anner,including verbally,telephonically,or

by courier. (Id.). Regardless of whether the bouts actually occurred, DKP was
considered to have com plied with its obligations under the Agreement so Iong as it

made three bona 5de boutoffersto Mayorga.(Id.).

The 2009 Agreem ent also granted DKP the right to, inter alia, aII site and

sponsorship fees made in connection with any such bout. (DE 1-1 at3,Section V.

W orldwide Rights to Bout). Finally,the Agreementcontains a provision stating that

M ayorga recognized that his services as a professionalboxer were 'special,unique,
extraordinary,irreplaceable and ofpeculiarvalue,''and thata breach ofthe Agreement

would cause DKP to suffer ''irreparable dam age, which could not be reasonably or

adequately compensated by an action atIaw.'' (DE 1-1 at5,Section XIV.Equitable

Relieg.
On July 10,2014,M ayorga signed,in English and Spanish,the M OU and an

Addendum to the 2009 PromotionalAgreement.(DE 1-2,1-3). The 2014 documents

were also signed by Dana Jam ison and notarized by Grace Johansson. In the M O U,
M ayorga acknowledged that he retired from boxing following his m atch w ith M iguel
Cotto on March 12,2011 and that he was ''now m aking a com eback to professional

boxing aftera briefattemptatM MA.'(DE 1-2).In b0th documents,Mayorga reaffirmed

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the 2009 PromotionalAgreem entwith DKP,agreeing thatit rem ained in fullforce and
effect and releasing DKP from aIIclaim s based on any eventoccurring, in whole orin

part, prior to July 10, 2014. (DE 1-2, 1-3). The Addendum also provides that

''Iplursuantto Paragraph Vllofthe DKP PromotionalAgreement,Fighteragreesthatthe

term of the Prom otionalAgreem ent is extended by the tim e of Fighter's tem porary

retirementonMarch 12,2011and isfully operative.''(DE 1-3).

C. Dana Jam ison's testim ony
Dana Jam ison testi
fied thatshe has been em ployed by DKP for29 years. Her
responsibilities include negotiating contracts with boxers,setting up training forboxers,
and arranging bouts and bout agreem ents for boxers prom oted by DKP. Her duties
also include tracking DKP boxers and theirfights,both nationaland international. M s.
Jam ison explained thatwhile a promotionalagreem entis a broad agreem entbetween a
boxer and DKP establishing that DKP is that boxer's exclusive promoter, a bout
agreem ent is directed to a specific fight, identifying the actual purse, date, site,
opponent,weightrequired,and num berofrounds forthatfight.
Ms.Jam ison has known M ayorga forfifteen years. M s.Jam ison,who is fluentin
Spanish,com m unicates with M ayorga in Spanish because he does notspeak English.

M s.Jam ison recalled that since 2000, Mayorga has signed m ultiple agreem ents w ith
DKP, each of which contain substantially sim ilar term s and each of which was

translated and witnessed by her. O n October1,2009,Ms.Jam ison translated the 2009

Prom otionalAgreementforM ayorga,which they both signed.

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 8 of 31

M s.Jam ison acknow ledged thatfrom 2011 through 2014 - following Mayorga's
retirementafterthe 2011 M iguelCotto fight- M ayorga continued to padicipate in M MA
fights. She also stated that,to the bestofherknowledge,an M MA fightis considered a
bout under the Prom otional Agreement. lt was her understanding that the 2010

injunction was issued,in pad,on the basisthatthe PromotionalAgreementcoversboth

M MA fights and boxing m atches. W ith the exception ofthe 2010 M MA fight,there was
no evidence presented that DKP soughtto prevent M ayorga from padicipating in any
otherM MA fights. M s.Jam ison testi
fied thatafter his announced retirem ent,M ayorga

and DKP signed a Bout Addendum on October 16, 2012, reaffirm ing the 2009
Prom otionalAgreem ent. Since 2009,the only fightthatDKP has prom oted forMayorga
was the M iguelCotto fi
ghtin 2011.
Thereafter, in July of 2014, M ayorga contacted DKP in order to discuss his
career. M s.Jam ison m etwith M ayorga in DKP'S offices on July 10,2014,atwhich tim e
M ayorga advised herthathe wished to com e outofretirem ent. Accordingly,thatsame
day,she and M ayorga signed the 2014 MO U and the Addendum to the Prom otional
Agreem ent- both ofwhich were provided to M ayorga in Spanish and in English.
Following the July 10,2014 m eeting,DKP setup a training regimen forM ayorga
but M ayorga failed to comply with the training schedule. According to M s.Jam ison,
M ayorga told herthathe was notready to fi
ghtand thathe would inform herwhen that
tim e cam e. He neverdid. Ms.Jam ison explained thatthroughouthis career,M ayorga

has been very erratic in his training, has padicipated in m atches without being
adequately prepared,and has often m issed training sessions. She stated that even
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when training, Mayorga has been known to drink and sm oke cigarettes and that he
does not''take his craftand his professionalcareerseriously atalltim es '' ln addition to
.

being erratic in his training,M s.Jam ison offered unrebutted testim ony that M ayorga
was exceedingly difficultto contact,thathe would often refuse to return phone calls,and
that he does not have a perm anent m ailing address, Iandline, or e-mailaddress at
which he reliably can be reached. In addition, M ayorga m aintains m ultiple cellular

telephones and frequently changes cellularnum bers. M s.Jam ison could notsay with
specificity how m any bouts DKP offered Mayorga afterJuly 2014,butshe explained that
she was unable to presentany offers to Mayorga because he took no calls and was,for
alIpracticalpurposes,unreachable forthe pastyear.
Although Ms. Jam ison testified that she was responsible for tracking boxers

signed to DKP,she did notknow:(1)ifMayorga had padicipated in any fightsfollowing

the July 2014 MOU and Addendum'
,(2)thathe had padicipated in the Oklahoma City
match'
,(3)thathe had padicipated in the December2014 boxing match in Nicaragua'
,
and (4)the outcome ofeitherofthe two 2014 fights,although the results were available
and repoded on industry databases. She also could notrecallifDKP had senta cease

and desist Ietter,through its attorneys, to the promoter of the O klahom a City fight,
although she had been copied on thatIetter.
In July of 2015,M s.Jam ison Iearned ofthe August 29,2015 m atch scheduled
between M ayorga and M osley. She attem pted to contactM ayorga regarding the event
num erous times by telephone butwas unable to reach him . M s.Jam ison asseded that

DKP has a strong business interest in ensuring not only that its boxers adhere to the
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term s of their contracts but also that other prom oters can rely on DKP to deliver its
boxers pursuantto those contracts. She stated thatitwas 'com m on know ledge'
'in the
industry that DKP is Mayorga's exclusive prom oter. Consequently,she believed the
goodw illand reputation of DKP would be harm ed by the August 29,2015 fight. She

opined thatif M ayorga were to violate his contract,otherfighters m ightalso disregard

theirobligations to DKP.
She also expressed DKP'S serious reservations about M ayorga's physical
fitness. Ms.Jam ison testified that DKP has no know ledge of his training schedule,his

weight,orhis mentalcondition. She stated concern thatMayorga could be injured or

perform poorly atthe August29,2015 fightwhich,in heropinion,could resultin harm to

M ayorga and im pairDKP'S abili

ty to prom ote him in future events. Finally,Ms.Jam ison

testified that,to herknowledge,there were no opponents (otherthan Mosley)currently

interested in fighting M ayorga.
D. Shane M osley's Testim ony
M osley testified thatthe contractforthe August29,2015 fightwas signed on July

8,2015 and provides a $500,000 purse forMosley and a $250,000 purse forMayorga.
In addition to the boutbetween Mosley and M ayorga,the eventwillalso feature several

undercard fights. The Forum ,where the fight is to be held,has a capacity of 16,000
people. W hile M osley testified thathe expects the fightto sellout,he estim ated thatas
ofthe hearing,only 2,000 to 3,000 tickets had been sold. M osley conceded thathe has
been placing free tickets on park benches in orderto drum up publicity forthe event.

Mosely stated that the fight willbe available worldwide on pay-per-view and that he
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expects 1.2-1.4 m illion viewers. Although he is the eventprom oter,M osley said he has
no idea how m any,ifany,pay-per-view packages have been sold to date.2

According to M osley,the August 29,2015 fight cam e about as the result of a

''Twitter battle''between him self and Mayorga. Mosley stated that M ayorga's adviser,
Ivaylo Gotzev,reached outto him to arrange the fight.3 Mosley testified thathe had no
knowledge that a contract between DKP and M ayorga was still in effect when he

arranged the August29,2015 bout,although he knew thatDKP and M ayorga had had a
relationship in the past4
.

E. Ricardo M ayorga's Testim ony

M ayorga first began working with DKP in 1999. Over tim e, he entered into
m ultiple contracts with DKP,believing that DKP w ould be able to Iead him to a world
title. During his professional relationship with DKP, M ayorga did, in fact,win three
cham pionships. M ayorga confirm ed thatwhen he visited DKP'S offices,a IawyerorMs.
Jam ison would orally translate contracts for him into Spanish because he cannotread
or write English or Spanish. Although he understood M s.Jam ison's translations, he
suggested he did notbelieve she was translating truthfully.

2 Itshould be noted thaton August29, 2015,a cham pionship boutis scheduled to take place at
the Staples Center in Los Angeles,Cali
fornia - Iess than 10 m iles aw ay. The cham pionship
fightis noton pay-per-view and willbe broadcaston television worldwide.
3 M osley testified thatthe contractsigned by M ayorga forthe August29, 2015 boutwas only in
English. No m ention was m ade ofa Spanish translation and the contractwas notoffered into
evidence.
4 M osley testified that M ayorga told him thatM ayorga had no agreem ent binding him to DKP .
The Courtinquired whetherthere was a conflictin M ayorga and Mosley sharing the sam e legal
counseland w as assured thatthe issue had been addressed and no conflictexists.
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M ayorga testified that in 2009, he filed suit against DKP in order to recover
m oney DKP allegedly owed him as a result of a bout against Oscar De La Hoya.s
Mayorga told the Court that the signature and initials on the affidavit subm itted in
suppod ofthe Iawsuit- in which he attested thathe had signed a 2008 agreementwith
DKP - were not his. Mayorga also claimed that the ''M ayorga'
' signatures on the
October1 2009 Prom otionalAgreem entand the 2012 BoutAddendum were nothis.6
He m aintained that he did notrecallsigning a contractwith DKP in 2009 or2012 and
stated thathis contractwith DKP had ''expired'
'by 2014 S'due to the noncom pliance on

(DKP's)part.' Atanotherpointin his testimony,however,he admitted thatfrom 1999

through the 2011 Cotto fight,he had signed m ultiple contractsw ith DKP.
M ayorga adm itted that at the press conference following the Cotto fight, he

stated,''Iam going to retire. Ithink Ineed to Iook fora job. Isaid atthe stad ofthis
prom otion that I would retire from boxing if I Iost. And I think it's tim e to retire.''
Although he acknow ledged m aking this statem ent,M ayorga denied thathe everretired,
contending that the statem ent w as m eant to ''intim idate'
' his opponents. M ayorga
fudher stated that he never told anyone at DKP that he was retiring. Following his

publicized,butperhaps notactual,retirem ent,Mayorga padicipated in fourM MA fights

and two boxing m atches.
M ayorga firsttesti
fied thatotherthan the 2012 fightin Venezuela,DKP had not
offered him any bouts since 2009. He lateradm itted thatDKP did secure a fightforhim
5 The 2009 Iaw sui
t m akes no m ention ofthe Oscar De La Hoya fight. M ayorga also accused
DKP offailing to adequately com pensate him forthe 2Q11 boutwith M iguelCotto.

6 M ayorga denies signing the 2012 BoutAddendum despi

te adm itting thatDKP had offered him
the boutreferenced in thatAddendum .
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against M ichaelW alker in February of 2010 at the Am erican Airlines Arena in Miam i
and thatDKP arranged the 2011 M iguelCotto bout. Although M ayorga denied signing
the 2009 Agreem ent with DKP and aIIsubsequent agreem ents, he stated that from
2009 through 2014 he continued to reach outto DKP to secure bouts forhim .
Despite his claim that DKP had cheated him and that he had no business
relationship whatsoever with DKP,M ayorga testified thaton July 10,2014,he visited
DKP'S offices so that his new w ife could meet Don King and take a picture with him .

M ayorga stated thatduring thatvisit he did notdiscuss anything,including his career,

with DKP personnel. He fudhertestified thatwith the exception ofa $200 receiptfora
taxifrom the airpod to DKP'S offices,he did notsign the M O U,the 2014 Addendum ,a

promissory note executed in his favorfor$441,896.83,ora check for$2,000.00 (aIIof

which were dated July 10,2014)while atDKP'Soffices on July 10,2014.W hen shown
a July 10,2014 taxireceiptfor$200 indicating Ricardo Mayorga as the passengerand
DKP'S offices as the destination,M ayorga denied thatthe ''M ayorga''signature on the

receiptwas his.7 Interestingly, during his July 10,2014 visitto Florida,M ayorga stayed
with Ivaylo G otzev - w ho would Iaterprom ote his Oklahom a City fight and the August
29,2015 boutagainstMosley.

M ayorga testified that he has been in discussion with Julio Cesar Chavez
regarding a subsequent bout if M ayorga beats M osley. M ayorga believes that ifthat

fightoccurs,he may earn morethan $1million.

7Throughoutthe hearing, the only docum entthatMayorga adm i
tted bore his true si
gnature was
his recently issued passportwhich was introduced into evidence by his attorney. The contents
of the passport indicate that M ayorga is in the United States on a tourist visa,w hich he said
would not perm i
thim to padicipate in any boxing m atches for com pensation. Mayorga assured
the Courtthatappropriate visas were being procured forthe August29,2015 fight.

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F. G race Johansson's Testim ony

M s.Johansson testified that she has been Iicensed by the state of Florida as
notary for m ore than a decade. M s.Johansson testified that she observed Mayorga,
who is personally known to her,sign the 2009 Prom otionalAgreem ent,the 2014 MO U,
and the 2014 Addendum . After M s. Jam ison explained each of the docum ents to

M ayorga in Spanish,M s.Johansson notarized them . The padies do not dispute that
M s.Johansson was a Iicensed notary atthe tim e those documents were signed orthat
the docum ents bearhernotary stam p.8
II. LEGAL STANDARD

A. Choice ofLaw

The PromotionalAgreementprovides that''ltlhis Agreementshallbe governed,

construed and enforced in accordance with the substantive Iaw ofcontracts ofthe State
of New York and without regard to New York choice ofIaw principles orconflicts ofIaw

principles.'' (DE 1-1 at7).W hen a coud S'exercises jurisdiction based on diversity of
citizenship,28 U.S.C.j 1332,a federalcoud mustapply the choice oflaw rules ofthe
forum state to determ ine w hich substantive Iaw governs the action.''U.S.Fid.& Guar.

Co.?.Liberty Surplus Ins. Corp.t550 F.3d 1031, 1033 (11th Cir.2008). 'Itis well
settled thatabsenta public policy prohibition,Florida courts w illenforce a choice-of-law

provision in a contract'unless the Iaw ofthe chosen forum contravenes strong public

policy.''' Perez v.Fedex Ground Package Sys.,Inc.,587 F.App'x 603,606 (11th Cir.
BAlthough Defendants contend there are som e technicalirregularities w ith the notarization, the
Courtdoes notfind the argum entavailing. Such alleged defects in no way im pactthe validity of
the docum ents or the contracts which M ayorga signed. Nonetheless, even discounting her
status as a duly Iicensed notary,M s.Johansson testified credibly thatshe personally observed
Mayorga sign the various docum ents atDKP'S offices.
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2014)(quoting Maxcess,Inc.v.Lucent Techs.,Inc.,433 F.3d 1337,1341 (11th Cir.

2005)).
The contract here contains

choice-of-law provision designating that

interpretation and enforcem entofthe Prom otionalAgreem entis to be governed by New

York Iaw. Neither party argues - and there is no indication in the record - thatthe
choice-of-law provision in the PromotionalAgreem entconflicts with the public policy of

the state ofFlorida. Consequently,atIeastatthe preliminary injunction stage,the Coud

willapply the substantive Iaw of the state of New York to Plainti
ffs breach ofcontract
claim . As forthe todious interference claim ,the Padies argued,and the Coud agrees,

thatatthis stage ofthe proceeding,Florida law should apply.

B.Preliminary lnjunction
Under Rule 65,the Court may entera preliminary injunction on notice to the
adverse party.9 Fed.R .Civ P.65. Atthe preliminary injunction stage,the Coud ''may
.

rel
y on affidavi
ts and hearsay m aterials w hich would not be adm issible evidence fora

permanentinjunction,ifthe evidence is appropriate given the characterand objectives

ofthe injuncti
ve proceeding.' LeviStrauss & Co.v.Sunrise Int'
lTrading Inc.,51 F.3d
982,985(11th Cir.1995)(internalcitationsomitted).

9 Defendants protest that they had insufficient notice of the hearing. (See DE 15). Thi
s
argument is without m erit. At the hearing, Defendants conceded they were aw are of the
com plaint and the em ergency m otion as early as August 14, 2015. Additionally, Defendants
were aware ofthe Iikelihood ofIegalaction atIeastas early as July 30,2015,w hen Plainti
ffsent
the cease and desist Ietter. Defendants had, at a m inim um , 6 days to prepare for the
em ergency hearing,which is sufficient notice. See LeviStrauss & Co. v.Sunrise Int'
lTrading

Inc.,51F.3d 982,985 (11th Cir.1995)(notingthatcounselhad l

'atleastaweekendto prepare
theiroppositionto the preliminaryinjunction'
'and finding thatthe districtcoud did notabuse its
discretionindeterminingthatcounselhadsufficienttimetopreparea defense).
15

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 16 of 31

However,a prelim inary injunction is Slan extraordinary and drastic remedy''that

should only be granted ifthe moving party has clearly established fourelements: (1)a

substantialIikelihood of success on the merits'

,(2) irreparable injury willbe suffered
unlessthe injunction issues'
,(3)the threatened injury to the movantoutweighswhatever

damage the proposed injunction may cause the opposing pady;and (4)ifissued,the
injunction would notbe adverse to the public interest. McDonald's Corp.?.Robertson,
147 F.3d 1301,1306 (11th Cir.1998).
,Siegelv.Lepore,234 F.3d 1163,1176 (11th Cir.
2000). Ofthe fourfactors,the firstand second are recognized as the mostimpodant.
See S/ege/,234 F.3d at 1176-77 (describing irreparable harm as the llsine qua non of

injunctive reliefnl;Oce N.Am.,Inc.v.Capulo,416 F.Supp.2d 1321,1325 (S.D.Fla.

2006)(stating that'the firstelement,the Iikelihood ofsuccesson the merits,isgenerall
y
considered the mostimportant.'').
111.ANALYSIS
A. SubstantialLikelihood ofSuccess on the M erits

''Controlling precedentisclearthatinjunctive reliefmay notbe granted unlessthe

plaintiff establishes the substantial Iikelihood of success criterion.'' Schiavo ex rel.

Schindlerv.Schiavo,403 F.3d 1223,1226 (11th Cir.2005). IfPlaintiff's claims are

'questionable''the Iikelihood ofsuccess criterion willnotbe satisfied. Grupo M exicano

de Desarrollo S,A.7.Alliance Bond Fund,Inc.,527 U.S.308,340 (1999).

Plaintiffseeks an injunction barring Mayorga from padicipating in the August29,
2015 fightpursuantto the term s ofthe 2009 Prom otionalAgreementand subsequent
contracts. Although alIthese docum ents bear a llM ayorga'
'signature, Mayorga has
16

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 17 of 31

denied signing each and every one,including: (1)the affidavitsubmitted in supportof

his 2009 IawsuitagainstDKP'
,(2)the 2009 PromotionalAgreement'
,(3)the 2012 Bout

Addendum;(4)the July 10,2104 MOU;(5)the July 10,2014 Addendum'

,(6)the July
10,2014 taxireceipt'
,(7)the July 10,2014 $2,000 check;and (8)the July 10,2014
prom issory note. The Courtfinds thatMayorga's testim ony regarding the contracts and
his dealings with DKP Iacks credibility.
Mayorga would have the Coud believe that al
though he filed a lawsui
t against

DKP in 2009 and sought an emergency order, the affidavit of Ricardo Mayorga
subm itted in supportofthatIawsuitand bearing a 'M ayorga''signature,was notsigned
by him . He fudhercontends thatdespite the factthatM s.Jam ison and M s.Johansson
testified thatthey personally saw him sign the 2009 Prom otionalAgreem entas wellas
subsequentagreem ents,and despi
te the factthatMs.Johansson testified she notarized
each one, the ''Mayorga'' signatures on those docum ents are also not genuine.
Although M ayorga firsttestified thathe could notrecallsigning any contracts with DKP
after 2008,he Iater adm itted he had signed m ultiple contracts w ith DKP from 1999
through 2011.
W ith respectto the 2012 BoutAddendum ,Ms.Jam ison and M s.Johansson both
testified thatthey personally observed Mayorga sign the agreem ent,which was then

notarized by M s.Johansson. Even though M ayorga adm itted he and DKP discussed
the 2012 bout,he denied thatthe 'dM ayorga''signature on the Addendum was his.
M ayorga would also have the Courtbelieve thaton July 1O,2014,he - a m an of
m odestfinancialresources - flew from Nicaragua to Florida and im m ediately traveled to

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 18 of 31

DKP'S office forthe sole purpose of having his new wife take a picture with M r.King.
M ayorga testified thatDKP had arranged fora taxito take him from the airportto DKP'S
office upon his arrivalin Florida. W hile M ayorga adam antly denied thathe engaged in

any discussion regarding his careerduring the July 10,2014 meeting,Plaintiffproffered

a MOU,Addendum ,a checkfor$2,000,and a promissory note,aIIdated July 10,2014,

witnessed by Ms. Jam ison, notarized by M s. Johansson, and bearing a ''M ayorga'
'
signature. Mayorga denied signing every one ofthose docum ents. The only docum ent

he adm itted to signing on July 10,2014 was a receiptforcab fare. Yetwhen presented
w ith a July 10, 2014 taxi receipt for passenger Ricardo M ayorga from the Fod

Lauderdale airpod to DKP'Soffices for$200.00,Mayorga denied thatitwas,in fact,his

signature on the docum ent.

Based upon the documents and evidence proffered by Plaintift and in Iightof
M ayorga's testim ony,the Courtbelieves thatDKP has produced sufficientevidence at
this point to show that the 2009 Prom otional Agreem ent was a validly executed
contract. Nevedheless,on this record, Plaintiff has failed to establish a substantial

Iikelihood ofsuccess on the meri

ts because questions remain regarding: (1)whether

the PromotionalAgreement is stillin effect;and (2)whetherenforcementofcertain

provisions has been waived by DKP. Although Defendants will have the ultim ate
burden ofproving theirdefenses to preventenforcem entofthe contract,''atthis stage of
the proceedings Plaintiff has the burden of establishing a substantial Iikelihood of
success on the m erits by showing itcan overcom e these defenses.' Oce N.Am .,Inc.v.

Caputo,416 F.Supp.2d 1321,1325 (S.D.Fla.2006).

18

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 19 of 31

On this record, it is unclear whether or not the contract has expired. The
Prom otionalAgreem entwas signed on October 1,2009 and was in effectuntilat Ieast
M arch of2011. Although Mayorga m ay have retired from professionalboxing in 2011,
he continued to participate professionally in M MA fights,which m ay qualify as bouts
under the Prom otionalAgreement. Ms.Jam ison conceded that,to the best of her
knowledge,the Prom otionalAgreem entcovered M MA fights and thatthatbeliefform ed,

at Ieast in pad, the basis for the 2010 injunction. In addition, in the 2012 Bout
Addendum ,Mayorga reaffirm ed thatthe 2009 Prom otionalAgreem entwas in fullforce
and effect. There was no indication in the record that the 2012 reaffirmation was
tem porally Iim ited or that the agreem ent was tolled when the 2012 fight failed to
m aterialize.

ln othercases enjoining professionalathletes,there was no question regarding

the duration of the contract and whether the contract,absent some other affirm ative

defense,was stillin effect. See Arias e. Solis,754 F.Supp.290 (E.D.N.Y.1991)

(granting injunctionwhen boxersigned two-yearcontractonApril2,1990 and prom oter

soughtinjunction to preventboxerfrom fighting in boutwi
thoutpromoter's approvalon
January 8,1991)'
,Lewis v.Rahm an,147 F.Supp.2d.225,238 (S.D.N.Y.2001)(t'In
m ost of the cases in which negative covenants have been specifically enforced,the

defendant owed a continuing obligation to the plaintifffor a specific term .'')'

,Nassau
Sporls v.Peters,352 F. Supp.870,878 (E.D.N.Y. 1972) (granting injunction when
hockey playersigned contractfor1971-1972 with one yearrenewaloption and suitwas

filed in 1972).
19

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 20 of 31

Additionally,the record is equi

vocalas to w hether DKP offered M ayorga three
bouts peryearas required by the Prom otionalAgreem entand w hetherDKP has waived
or is otherwise estopped from enforcing the Prom otionalAgreem ent.lo As such, the
Coud finds that based on the evidence presented, DKP has failed to establish a
substantiallikelihood ofsuccess on the m eri
ts.

B.Irreparable Injury
A pady requesting a prelim inary injunction mustshow a substantialthreat of
irreparable injury ifthe injunctionwere notgranted. S/ege/,234 F.3d at1176-77.'t(T)he
asseded irreparable injury 'must be neither remote nor speculative,but actualand
imminent.'' Id. d
'An injury is 'irreparable'only ifitcannotbe undone through monetary
rem edies.'' Ne.Fla.ChapterofAss'
n ofGen.Contractors ofAm .v.City ofJacksonville,

FIa.,896 F.2d 1283,1285 (11th Cir. 1990). 'Mere injuries,however substantial,in

term s ofm oney,time and energy necessarily expended in the absence ofa stay,are

notenough.' Sampson ?.Murray,415 U.S.61,88 (1974).

Plaintiffhas failed to m eet its burden ofestablishing actual,im m inentharm that
could not be rem edied through a m onetary award. New York, follow ing English

common Iaw, recognizes the availabili

ty of injunctive relief when the non-compete
covenantis found to be reasonable and the employee's services are unique. TicorTitle

Ins.v.Cohen,173 F.3d 63,70 (2d Cir.1999). This is because when an employee has
truly special,unique,or extraordinary services and those services Stare available to a
10As discussed at Iength, questions rem ain aboutw hether DKP offered M ayorga the bouts or
whether it was unable to do so gi
ven his refusal to com m unicate with DKP. Likew ise, as
discussed,in Iight of M ayorga's padicipation in the two 2014 boxing m atches and M M A from
2O11 through 2014,it is uncedain w hether DKP m ay be estopped,or have otherwise w aived,
enforcem entofthe 2009 Prom otionalAgreem ent.
20

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 21 of 31

com petitor,the em ployerobviously suffers irreparable harm ,'' /d. Accordingly,when an

em ployee refuses to renderservices to an em ployerin violation ofan existing contract,
and the services are unique orextraordinary,an i
njunction m ay issue to preventthe

em ployee from furnishing those services to another person for the duration of the
contract. See id.'
,Solis,754 F.Supp.at293-94.
Such unique services have been found to existin various professions where the
services are dependenton an em ployee's specialtalents,as in the case of'm usicians,
professionalathletes,actors,and the Iike.'' Ticor, 173 F.3d at 70. ''In those kinds of

cases injunctive relief has been available to preventthe breach of an employment

contractwhere the individualperform er has such ability and reputation that his orher
place m ay not easily be filled.'' Id. However, ''as to the specific perform ance of

personalservices contracts involving athletes,before granting an injunction,itmustbe

shown 'thatthe player is an athlete ofexceptionaltalent.''' Solis,754 F.Supp.at294.
And in determ ining the value ofthe services,the focus should be on the em ployee's
relationship to the em ployer's business.Ticor,173 F.3d at71.
W hile Mayorga proclaim ed thathe w as stilla boxerofexceptionaltalentand that
he would undoubtedly beat Mosley, this characterization and this outcom e are
debatable. In Solis,the coud noted thatPlaintiffoffered into evidence two ranking Iists
indicating thatthe boxerwas ranked #7 and #10 by two differentboxing associations.
See Solis,754 F.Supp.at294. Here,the undisputed evidence is thatM ayorga is not
ranked,thathe is notatthe peak ofhis physicalcapabilities,and thatwhether he will
padicipate in any future bouts is purely speculative. As Ms.Jam ison testified,butfor
21

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 22 of 31

the Twitter-inspired August 29,2015 fight against M osley,she w as not aw are of any
other opponents interested in fighting M ayorga. There w as also an absence of
evidence thatM ayorga's relationship to DKP'S business is ofpadicularim podance to its

podolio,aIIofwhichweighs againstafinding ofirreparable injury.

The Second Circuit has suggested that a contractualprovision stating that the

breach ofa non-compete clause would cause an employer irreparable injury S'might
arguably be viewed as an admission by (defendant)thatplainti
ffwillsufferirreparable
harm ''in the eventofa breach. Ticor,173 F.3d at69. W hile such a provision ''m ight'
be viewed as evidence ofan adm ission,in Solis,the courtnoted thatitwas notrequired
to accept as true a provision stating that the em ployee's services are unique or
exceptionalorthatirreparable harm willnecessarily ensue. See Solis,754 F.Supp.at
294. Although the 2009 Agreem entcontains such Ianguage,the Courtis notbound by
it,padicularly in light of the factthatwhile the provision may have been applicable in

2009,six years Iaterthe record is silentas to w hetherM ayorga has rem ained an athlete
of''exceptional''talent.

DKP contends thatitwillsuffer irreparable injury ifan injunction is not issued

because ''other fighters under contract with DKP m ay believe that they can sim ply

abandontheircontracts and immediately and openly compete againstDKP.'' (DE 23 at

2) (emphasis added). W hile the record contains instances of Mayorga's seem ing
disregard for his contractualobligations, DKP'S assedion of irreparable harm - with

regard to M ayorga as opposed to any otherfighter- is m erely conclusory. Mayorga

has already padicipated in atleasttwo professionalboxing m atches in possible violation
22

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 23 of 31

of his contractwith DKP and DKP offered no evidence that M ayorga's flouting of his
contractual obligations has, in fact, Ied other boxers to ftlllt)hrl irl khir itbitl6plrl()rlltitl
footsteps. Fudher,M s.Jam ison testified thatitwas wellknown in the boxing industry
that DKP represents M ayorga but did not offer any evidence that his unauthorized

padicipation in M M A fighting from 2011 to 2014 or the two 2014 boxing m atches,
harm ed DKP'S reputation or that the August 29,2015 event,in padicular,would be
m ore Iikely to harm its reputation.

In affirming an injunction preventing an employee from violating a non-compete

clause, the Second Circuit in Ticor found that the irreparable harm was clearjy
evidenced because the yearbefore the claim atissue,another em ployee had leftand
taken 75% ofhis clients with him . Ticor,173 F.3d at72. Plaintiffoffered no com parable
evidence and there is no basis on the record forthe Courtto conclude that Mayorga's
prior padicipation in M MA and the 2014 fights resulted in the irreparable harm

suggested by Plainti
ff. See SfarBoxing,Inc.v.Farver,No.02 CIV.8446 (GEL),2002
W L 31867729,at*3 (S.D.N.Y.Dec.20,2002)(finding thatthe harm a promoterm ight
sustain as a resultofembarrassmentorinjuryto reputation iffighterwas notenjoined
from fighting foranotherprom oterwas notirreparable,padicularly in Iightofthe factthat
itwas already know n in boxing circles thatfighterhad Ieftprom oterand thus ''whatever

embarrassmentcould arise from (fighter's)breach hasalreadyoccurred'').

As such,the Court finds that Plaintiff has failed to proffer sufficient evidence

showing thatany Iossin standing,reputationrllorprestige suffered ifthe injunction does

11 Defense incorrectly argued that in order to prove irreparabl
e harm , DKP m ust produce
evidence of Don King's personal reputation. In support of that argum ent, defense counsel
23

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 24 of 31

notissue cannotbe adequately com pensated by m oney dam ages See W olfv.Torres,
.

Case No.87-C14-1795, 1987 W L 10033, at *2, (S.D.N.Y.April21, 1987) (denying

injunction to preventothermanagers from discussing contracts with boxerwhile validity

ofcontractwas determ ined and finding thatprom oter''had an adequate rem edy atIaw

since money damages are available to him for any alleged Iost profits, injury to
standing,reputation,prestige and credit'').
DKP also contends thatitwillsufferirreparable harm if Mayorga is perm itted to

padicipate in the August29,2015fightbecause i

fhe performspoorly oris injured,DKP
will have difficulty prom oting him in the future. The Coud finds that DKP has not

adduced sufficientevidence to establish irreparable injury in this regard. DKP has no

sought to introduce self-selected, unauthenticated,hearsay news adicles published two years

ago from a variety ofonline sources regarding Don King's (as opposed to Plaintiff!DKP's)
purported reputation in the industry. Not only were those docum ents inadm isslble and

inappropriate forthe purposes ofthe preliminary injunction hearing,but defense counsel's

assedion regarding Don King's obligation to offer reputation evidence and any adverse
inference to be draw n from his failure to testi
fy has no basis in Iaw. Notably,defense counsel
failed to cite to a single case where the plaintiffwas required to com e forward with affirm ative

evidence ofi
tsreputationduring apreliminaryinjunctionhearing andthecasescited bydefense

counselare inapposite. See M arcone v. Penthouse Int'

l M agazine For M en, 754 F.2d 1072,

1078 (3d Cir.1985)(analyzing Pennsylvania defamation and IibelIaw and finding thateven if
plaintiffhad sullied reputation,the court''cannotsayas a matterofIaw that(plaintim was Iibel
proof...Evi
dence oftarnished reputation ...should be considered as a factorto m itigate the
Ievel of com pensatory dam ages'
' and finding that plaintiff w as not required to prove actual

economic Ioss to recover for reputationaldamagel; Martinelli 7.BridgeportRom an Catholic

Diocesan Corp.,196 F.3d 409,413 (2d Cir.1999) (analyzing Connecticut Iaw regarding a
teenagerwho had been sexually assaulted by a priest and noting that the jury would be
perm itted to draw an adverse inference from the Diocese's failure to call the priest as a

witnessl'
,Chevron Corp.v.Donziger,974 F.Supp.2d 362,700 (S.D.N.Y.2014)(in a RICO
bench trial,courtwould decline to draw adverse inference forfailure to callcedain witnessesl'
,
Adelson v.Hananel,652 F.3d 75,87 (1st Cir.2011)($'W e conclude thatthe districtcoud,as
factfinder,w as underno obligation to draw the adverse inference,forthe 'm issing witness'rul
e

permits, ratherthan compels,the factfinder to draw (the) inference padicularly where the
factfinder concludes thatthe pady who requested the inference failed to subpoena a witness

otherwise available to testify.n). Moreover,Ms.Jam ison testi

fied thatDKP has a reputation as
''one of the Ieading boxing prom oters of the w orld'
'and defense counselelected notto crossexam ine heron this issue.
24

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 25 of 31

knowledge of Mayorga's current physicalcondition and can only speculate as to how

likely itis thathe willbe critically injured in the August29,2015 bout. ln othercases

where a courtenjoined a fighter,expertevidence orotherpersuasive testimony had

been introduced thatthe fighterwas likelyto sustain padicularinjuries. See Solis,754
F.Supp.at295 (enjoining boxerin partbecause boxerhad suffered an arm injury and
previouslyfailed a neurologicalexam ination).
Additionall
y,Ms.Jam ison testified that,to herknow ledge,no boxers,otherthan

M osley,were interested in fighting Mayorga,and that since July 2014,DKP had not
successfu11y offered Mayorga any boutsalz As such, the Court fails to see how
M ayorga's potentially poor perform ance in the August29,2015 boutwould negatively

im pact DKP'S efforts to prom ote him in the future. Adm ittedly, the Ioss of the
opportunity to director influence Mayorga's career- underthe right circum stances -

mightjustifya finding ofirreparable harm.However,Mayorga's careeris nearing its end

and M s.Jam ison testified that,since at Ieast 2009,DKP had been unable to director
strongly influence M ayorga's decisions. M ayorga's refusalto com m unicate with DKP
and his persistence in fighting in M MA or forother prom oters fudher underm ines the

notion thatany Ioss in directing his careerwould be irreparable 13 See Faa ec 2002 W L
.

12 A 9ain, DKP'S alleged failure to offer bouts m ay be the result of M s. Jam ison's inability to
Iocate Mayorga and his refusalto com m unicate w ith DKP. Itis also possible thatM ayorga m ay
have waived any claim he has with respectto the three bout provision of the 2009 Agreem ent

(which he stated he did notsign)because he purpodedly told Ms.Jamison thathe was not
prepared to fightand would inform herwhen he w as ready.
13W ith respectto Plaintiff's todious interference claim , the Courtalso finds that,forthe reasons
outlined stppra,Plainti
ffhas failed to establish a substantialIikelihood of success on the m erits
or irreparable harm . In Florida, the elem ents of tortious interference w ith a contractual

relationship are:(1)theexistence ofacontract'

,(2)the defendant's knowledge ofthe contract'
,
(3)the defendant's intentionalprocurement of the contract's breach'
,(4) the absence ofany
25

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 26 of 31

31867729,at*4 (factualrecord regarding relationship between boxerand promoterdid

notsupportissuance ofinjunction because the boxer'verym uch chose hisown course'

'
and promoter''
was unable to directorstrongly influence (boxer's)decisions.'').
C. Balancing ofthe Hardships and Public Interest
Although the Courtdid notfind defendants'argum ents welltaken regarding these
factors,because Plaintiff has failed to m eet its burden to clearly establish irreparable
harm ora substantialIikelihood ofsuccess on the m erits,the Court need notaddress
these factors atIength. Nonetheless,the Courtreiterates its position atthe hearing: the
public interest is always served by the enforcem ent ofvalid contracts. And w hile the
defense argues that 11M r.M ayorga credibly explained the reasons why he chose the

course of action he did''(DE 22 at 3),the Courtcannotagree with this conclusion.

M oreover,the harm Mayorga claim s to have suffered as a resultofDKP 'notpromoting

him''(DE 22 at3)appears to be,atleastin pad,a productofhisown conduct.

Finally,Defendants have vehem ently asseded that ''
the equities balance heavily
in favor ofallow ing the fightto proceed,the proceeds ofwhich willprovide an am ple
adequate remedy to com pensate DKP for any Iosses it m ay ultim ately be entitled to

recover in this case.' (DE 22 at 1). In other cases,such as W olf - which the
justification orprivilege'
,and (5)damages resulting from the breacha'Mattocks v.Black Entm't
Television LLC,43 F.Supp.3d 1311,1318 (S.D.Fla.2014). First,there hasbeennoevidence
offered that Mosley knew that M ayorga and DKP had an existing contract or business
relationship in 2015. Second,given M ayorga's padicipation in M M A and the tw o 2014 bouts,it
appears he was pre-disposed to breach the agreem ent. See Ingenuityf Inc. v. Linshell

Innovatl
'
ons Ltd.,Case No.6:11-CV-93-ORL28KRS,2014 W L 1230695,at*5 (M.D.Fla.Mar.
25,2014) (''Ifa partyalready intends to breach a contractregardless ofthe alleged interferer,
the plainti
ffwillbe unable to establish thatthe inte/erercaused the breachan). Finall
y,as the
Court has noted,questions rem ain whether in 2015,the 2009 Prom otionalAgreem ent is still
enforceable.

26

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 27 of 31

Defendants cited repeatedly - the coud found thatbecause defendants had agreed to
place future purse m oney into escrow ,the plaintiffwas protected financially and w ould

notsufferirreparable harm . See W olq 1987 W L 10033,at*2 (''Because his financial

interests are fully protected,W olf has notdem onstrated that he w illsuffer irreparable

harm ifhis application is denied.IDefendants)are willing to place the manager's share

ofany purse into escrow pending the resolution ofthis action and the proceeding before

the Com m ission.The defense asseds,and the Coud agrees,thatW olfhas an adequate
rem edy at Iaw since m oney damages are available to him forany alleged Iost profi
ts,

injuryto standing,reputation,prestige and credit.nl'

,Brettschneiderv.Bell,814 N.Y.S.Zd
559 (N.Y.Sup.Ct.2005)(refusing to enjoin boxerbutfinding that''equity requires sums
sufficientto pay Plaintiff's claim s be held in escrow pending the resolution ofthis action''
and ordering thatthe promoter's share ofthe proceeds from aIIfights participated in by

boxerbe deposited into the coud's registryl'

,see also W itherspoon ?.Rappaport,Case

No.97 CV 4052,1999 W L 1288944,at*1 (E.D.N.Y.Nov.3,1999)(enjoining promoter

from enforcing exclusivity agreementand perm itting boxerto fightbutnoting thatboxer

''has agreed to putin escrow the share ofallofhis future purses to which Epromoter)
would be entitledn).
During the hearing,the Coud inquired whether, in asserting that an adequate
rem edy at Iaw was available to Plaintiffthrough the proceeds of the August29,2015
fight,Defendants - like the defendantin W olf- were offering to putthe disputed funds
into escrow pending the resolution ofthe case. Defendants dem urred. Although the
Court has concluded that on this record,the extraordinary and drastic rem edy of a
27

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 28 of 31

preliminary injunction is not warranted, in Iight of Mayorga's uncertain status, his

testim ony,and the apparentdi
fficul
ties in reliably Iocating and contacting him ,i
trem ains
to be seen whetheran adequate rem edy atIaw w illbe illusory.
IV.CONCLUSION
For the foregoing reasons,the Court finds that Plaintiff has failed to carry its

burden and clearly establish thatitis entitled to a preliminary injunction. Accordingly,it

is hereby ORDERED AND ADJUDGED thatPlaintiff's motion forprelim inary injunction

(DE 8) is DENIED. By Septem ber 11, 2015,the Parties shallfile a joint pre-trial
conference reportand ajointproposed scheduling order,as required by S.D.Fla.Local
Rule 16.1(b). As partofthatfiling,the Padies shallcomplete and submitthe attached
form proposing deadlines forthe case 14
.

DO NE AND O RDERED in cham bers in M iam i,Florida,this

day ofAugust,

2015.

KATHL
UNITED

M .W ILLIAMS
ATES DISTRICT JUDG E

14Additionally, by August 27,2015,defense counselshallfile a m otion for adm ission pro hac

viceforKimberlina McKinney,Esq.,who hassigned multiple submissionstothisCourt(seeDE

15,17,22,24)and who was consulted extensively by Attorneys Vogtand Turkelduring the
hearing.

28

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 29 of 31

UNITED STATES DISTRICT CO URT

SO UTHERN DISTRICT OF FLORIDA
Case No.XX-XXXXX-CIV-W ILLIAM S
PARTY NAM E,

Plaintiffts),
VS.

PARTY NAM E,

Defendantts).
/
SCHEDULE JO INTLY PRO POSED BY THE PARTIES

THIS MAU ER issetfortrialforthe weekof(Month,Day,Year). The Parties

propose to adhere to the following schedule:

IMonth,Day,Year)

The Padies shall furnish Iists with names and

addresses offactw itnesses. The Padies are undera

continuing

obligation

to

supplem ent discovery

responseswith ten (10)days ofreceiptorothernotice

ofnew orrevised inform ation.

(Month,Day,Year)

The Padies shallfile motions to amend pleadings or

join Padies.

(Month,Day,Year)

The Plaintiff shalldisclose experts, expert witness

sum m aries and repods,as required by FederalRule

ofCivilProcedure 26(a)(2).
(Month,Day,Year)

The Defendantshalldisclose expeds,exped witness

sum m aries and repods,as required by FederalRule

ofCivilProcedure 26(a)(2).
29

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 30 of 31

IMonth,Day,Year)

The Padies shallexchange rebuttalexped witness

sum m aries and repods,as required by FederalRule

ofCivilProcedure 26(a)(2).
IMonth,Day,Year)

The Padies shallcomplete alI discovery, including

exped discovery.

(Month,Day,Year)

The Parties shall complete mediation and file a

m ediation repod with the Court.

IMonth,Day,Year)

The Padies shallfile alldispositive pre-trialmotions

and m em oranda ofIaw .

IMonth,Day,Year)

The Parties shallfile any motionstoexclude expert

testim ony based on FederalRule ofEvidence 702
and Daubert?.M erre//Dow Pharm aceuticals,Inc.,
509 U S.579 (1993).15
.

(Month,Day,Year)

The Padies shallfile a joint pre-trialstipulation,as

required by LocalRule 16.1(e)and finalproposed jury
instructions. Joint proposed jury instructions or
conclusions ofIaw (fornonjury trials)shalloutline:1)
the Iegal elements of Plaintiff's claims, including

damages'
,and 2)the Iegalelements ofthe defenses
thatare raised.

(Month,Day,Year)

The Padiesshallsubmittheirdepositiondesignations.

15This deadline m ustbe atIeast6 weeks priorto calendarcall.

30

Case 0:15-cv-61717-KMW Document 29 Entered on FLSD Docket 08/25/2015 Page 31 of 31

(Month,Day,Year)

The Padies shallfile witness and exhibitIists and aII

m otions in Iim ine.The w i
tness Iist shallinclude only
those w itnesses the Parties actually intend to callat

trial and shall include a brief synopsis of their

testimony. The exhibitIists shallidentify each witness
thatwillintroduce each exhibit.

By:

(Attorneyts)forPlaintifqsl)

31

(Attorneyts)forDefendanttsl)