BRENT D. PERCIVAL, ESQ. Nevada Bar #3656 ROBERT L. BOLICK, LTD. 6060 West Elton, Suite A Las Vegas, Nevada 89107 (702) 870-6060 Attorney for Plaintiffs DISTRICT COURT CLARK COUNTY, NEVADA STAN VAUGHAN, an individual; ) and NEVADA STATE CHESS ) ASSOCIATION, INC., a Nevada ) Corporation, ) ) Plaintiffs, ) vs. ) ) UNITED STATES OF AMERICA ) CHESS FEDERATION, an ) Illinois Corporation; ALLEN ) MAGRUDER, an individual, ) ) ___________ Defendants. ) Case No. A369674 UNITED STATES OF AMERICA ) Dept. No. XVI CHESS FEDERATION, an ) Docket No. W Illinois Corporation; ALLEN ) MAGRUDER, an individual, ) ) Counterclaimant, ) vs. ) ) STAN VAUGHAN, an individual; ) and NEVADA STATE CHESS ) ASSOCIATION, a Nevada ) Corporation, ) ) Counterdefendants. )PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
(1) Publishing, disseminating, or in any way distributing by print or by spoken word any allegations or representations that Plaintiff Stan Vaughan's status as a USCF certified Tournament Director has been in any way suspended, repealed, revoked, rescinded, recalled, annulled, canceled, or invalidated.
(2) Refusing, declining, rejecting, or disallowing recognition of tournament results for chess tournaments held and conducted by Plaintiffs Nevada State Chess Association, Inc. and Stan Vaughan during the time period spanning February, 1996 to December, 1997, and all future events.
(3) Publishing, disseminating, or in any way representing, in print or by word of mouth, that Defendant Allen Magruder is in any way associated with, affiliated with, or formerly known as Nevada State Chess Association, Inc., f/k/a Nevada State Chess Association, other than to make the legitimate representation that Defendant Magruder is the former President of the unincorporated association known as Nevada State Chess Association.
(4) Refusing, declining, rejecting, turning down, or in any other way disallowing the advertisement of chess tournaments held or sponsored by Plaintiffs NSCA, Inc. and Stan Vaughan in Chess Life, pending decision by this court on the merits of this litigation.
This Motion is made and Based upon the entirety of the pleadings and papers presently on file herein, upon the affidavit of Plaintiff Stan Vaughan, attached hereto, upon the points and authorities attached to this motion, and upon such other evidence and oral argument as the court might request or desire at the time of any hearing to be held hereupon.
Respectfully Submitted this _____ day of December, 1997.
ROBERT L. BOLICK, LTD.
Brent D. Percival, Esq.
Nevada State Bar No. 003656
6060 West Elton, Suite A
Las Vegas, Nevada 89107
STATEMENT OF PERTINENT FACT
AFFIDAVIT OF PLAINTIFF STAN VAUGHAN
COMES NOW AFFIANT, Stan Vaughan, and, being first duly sworn and under oath, deposes and states as follows:
1. Your affiant is an adult resident of the County of Clark, State of Nevada, named as Plaintiff in the above-captioned matter.
2. Your affiant is of sound mind and of legal age, and has personal knowledge of the facts and circumstances set forth herein as the basis for suit. Your affiant would be fully competent to testify to the facts and circumstances set forth in this affidavit in a court of law, should he be called upon to do so.
3. Your affiant is one of the founding members of that corporation and body currently known as Nevada State Chess Association, Inc. Nevada State Chess Association, Inc. was formerly known as Nevada State Chess Association, an unincorporated association which has served as the local state affiliate to The United States Chess Association.
4. In approximately the middle to latter part of 1988, Allen Magruder, Ken Horne, Ed Kelly and I got together one evening at the West Charleston Library to form an association to promote the game of chess as a sport, hobby, and form of entertainment in the State of Nevada.
The purpose of our meeting was to form an association which could qualify as the Official State Affiliate to the United States Chess Federation. ("USCF"). At the time, Nevada had no organization recognized by the USCF as a local state affiliate.
The absence of a local state affiliate within the State of Nevada meant that chess players did not have an officially-recognized State Champion at either the adult or scholastic levels. Nor did they have a tournament clearing house to avoid local tournament organizers scheduling conflicting events at the same time. No legitimately-elected representative to the USCF was in place to represent Nevada Chess Players' interests at the annual meeting, and no Regional Vice President represented the interests of Nevada USCF members at the administrative level.
7. At this original meeting of the founding members, it was agreed that Allen Magruder would act as President pro tempore of the newborn organization known as Nevada State Chess Association. The remaining members of the founding body temporarily assumed the roles of officers, pending a regularly-held election by vote of the membership.
8. We then set out to effect our original purpose of organizing a local affiliate, which would be able to hold USCF sanctioned events here in Nevada.
9. Because I was the only member of the original group who had had experience with other USCF affiliated chess groups outside this state, I was chosen to draft by-laws for operation of the organization, which would then be submitted for approval by the officers of the local organization and by the United States Chess Federation. The other members approved my draft of the NSCA By-Laws in early 1989. The By-Laws were approved by the USCF, and Nevada State Chess Association was born in approximately August of 1989.
10. In early 1989, an election was held, to elect officers to Nevada State Chess Association by mail-in ballot. Ballots were distributed to all of the local members of the United States' Chess Association, who were automatically members of NSCA by virtue of the organization's By-Laws. There were six ballots returned to the election chairman, who at the time was Fred Mersky.
11. In addition to the six mail-in ballots, some 20 ballots were collected by Allen Magruder, at a local chess tournament. These ballots were collected in a fashion which was not appropriate under the NSCA By-laws, and were invalid for that reason. By the mail-in ballot return, I was elected to the Board of Directors of NSCA. When Mr. Magruder's ballots were thrown into the mix, however, I was not elected to office, and John Brown was elected to the Board of Directors in my stead.
12. After this initial election held in 1989, no further elections were held during the years 1990, 1991, 1992, 1993, 1994, or 1995. On a yearly basis, I made requests upon Allen Magruder and/or Dan Olim that elections should be held, and reported those requests to the USCF headquarters. Every year, my requests that elections be held, as required by the terms of the NSCA by-laws were ignored, and went for naught.
13. Finally, in 1995, a number of the other NSCA members and I decided that the time had come for elections to be held in accordance with the By-Laws of the local organization. In order to obtain assistance, we contacted the Nevada State Attorney General's office to ascertain what we needed to do to force an election. We were informed that the first step, which we would need to take, would be to incorporate, and that the members of the corporation would then be able to force an election under Nevada Law.
14. In order to incorporate, the members seeking to force an election distributed a petition to every member of the NSCA in the state of Nevada, on the subject of whether or not the general membership felt that it would be desirable to incorporate. The members received more than 441 responses to this petition, nearly all of which a vote to incorporate and hold elections for all ten (10) officers.
15. The Nevada State Chess Association, Inc. was officially incorporated with the Nevada Secretary of State, Corporations Division, on or about June 12, 1996. A copy of the Certificate of Incorporation is attached to this motion, as Exhibit "A".
16. Only shortly after Nevada State Chess Association, Inc. was incorporated, United States Chess Federation began to refuse to recognize its claim to be the official state affiliate to USCF. Rather, USCF has recognized Nevada Chess, Inc., after October 1996, a new corporation formed by Allen Magruder and his associates, as the official state affiliate. In so doing, USCF essentially disenfranchised over 700 members of its Nevada membership, because they refused to allow children and non-dues paying members to vote. In fact, there were only around 60 or so such dues paying members involved with former President pro-tempore Allen Magruder and his new organization out of a possible 750 + USCF members in the State at the time.
17. This action has been taken in spite of the fact that bona-fide members of the USCF, who were also members of the pre-incorporation Nevada State Chess Association, voted overwhelmingly to incorporate that association in an election process which fully complied with USCF approved By-Laws and Nevada State Laws governing recognized corporate entities.
18. Since the date of NSCA, Inc.'s incorporation, USCF has refused to recognize and rank results of NSCA-held tournaments, and has repeatedly advertised in Chess Life that NSCA, Inc. is not entitled to claim the status of official state affiliate to the USCF.
19. Further, since the date of our incorporation, USCF has failed and refused to grant a chess tournament clearinghouse, to prevent scheduling conflicts in tournaments which we hold with those held by other USCF members or groups. This is causing confusion among those persons who would like to play in our tournaments, and is damaging our standing and credibility in the local chess community.
20. It is the wish and desire of the Board of Directors of the Nevada State Chess Association that this court grant a preliminary injunction, enjoining USCF from further participating in those acts previously set forth herein, pending a final decision on the merits of the entirety of this action.
Stan Vaughan, Secretary
Subscribed and Sworn this ___ day
LEGAL ANALYSIS AND ARGUMENT
Nevada Revised Statute Section 33.010 sets forth those cases in which a preliminary injunction may be issued under Nevada law. The statute States, in pertinent part, as follows:
33.010. Cases in which injunction may be granted.
1. When it shall appear by the complaint that the Plaintiff is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission of or continuance of the act complained of, either for a limited time or perpetually.
2. When it shall appear from the complaint or from an affidavit that the commission or 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 to, 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.
(Nevada Revised Statutes Section 33.010) (Emphasis Supplied).
The question of whether or not an action is one properly subject to issuance of an injunction is one addressed to the sound discretion of the court. Rhodes Mining Company vs. Belleville Placer Mining Co., 32 Nev. 230, 106 Pac. 561, (1910), cited in Berryman v. International Brotherhood of Electrical Workers 82 Nev. 277, at 280, 416 P.2d. 387 (1966). The Court's exercise of discretion will not be disturbed on appeal, in the absence of clear error. Dixon v. Thatcher, 103 Nev. 414, 742 P.2d 1029, at 1031 (1987).
In order to justify the issuance of a permanent injunction, a Plaintiff seeking such relief must demonstrate the existence of three factors. Those factors are: (1) A real probability that great or irreparable harm will occur in the absence of injunction; (2) That the Plaintiff has a reasonable likelihood of success upon the merits of the action; and (3) That legal remedies will be inadequate to make reparation for the harm which will be suffered in the absence of injunction. Pickett v. Comanche Construction, Inc. 108 Nev. 422, at 426, 836 P2d 42, 45, (1992).
The burden of establishing the above factors, is not enormously burdensome. A Plaintiff need not establish that he is clearly entitled to the relief sought in order to obtain a preliminary injunction. Berryman v. Int'l. B'hd. of Electrical Workers, 82 Nev. 277, at 280, 416 P2d 387 (1966). Rather, it is sufficient that a party seeking issuance of an injunction make a prima facie showing of the three factors necessary to justify the requested injunctive relief. Id.
In the present case, the complaint and the affidavit of Plaintiff Stan Vaughan each present sufficient grounds for the court to issue a preliminary injunction granting them the relief requested. Initially, it should be noted that to allow Defendants to continue with their present course of action will result in severe or irreparable harm to Plaintiff. It has long been held that an act which destroys a property right in a Plaintiff, or which divests a Plaintiff of rights in property, is an act resulting in "great or irreparable injury", for which legal damages are inadequate. Thomas v. Blaisdell, 25 Nev. 223, 58 P. 903 (1899). This is so, even where the property is of a type and nature such that it can be replaced. Id.
The thrust of Plaintiff's complaint herein is that Defendants Magruder and company, acting in concert and conjunction with upper-echelon officials of the USCF, have conspired to usurp their rightful position as the Nevada state affiliate to USCF. This action was undertaken in the face of good and properly-conducted electoral process under both Nevada law, and under the by-laws of the United States Chess Federation. For reasons not yet wholly clear, USCF and its local minions have acted together to replace NSCA, its duly-appointed local affiliate, with a second body, doing business under the name Nevada Chess, Inc. They have done so, however, without following their own procedural and electoral rules, and without any showing that its own policies and procedures have been observed.
Defendants, USCF and Magruder, et. al., are now engaged in a campaign designed to convince the Nevada Chess-playing public that Nevada Chess, Inc. is the duly-appointed entity entrusted with the proper conduct of chess tournaments within this jurisdiction. They are doing so by refusing to rate and score tournaments conducted by Plaintiffs, and by scheduling their own tournaments at times conflicting with tournaments being conducted by Plaintiffs. In so doing, USCF has already made great strides toward eroding the confidence of the chess-playing public in the validity of NSCA's existence, and the legitimacy of their claims to USCF accreditation. In short, USCF is stripping NSCA and its officers of their rights in intellectual property, without due process of law, and without adherence to their own procedural rules.
With respect to the second factor for consideration, it is clear that Plaintiffs have a reasonable probability of success upon the merits of their claims. During elections held pursuant to Nevada state law and the properly-enacted bylaws of NSCA, the then-recognized proper local affiliate of the USCF, Plaintiffs Stan Vaughan and other members of NSCA, Inc. were elected as officers of the local affiliate to USCF. Without any legitimate reason therefore, USCF has refused to recognize the elections as valid or binding, and has instead chosen to treat Plaintiffs as pariahs within their ranks. Defendants have, in fact, gone so far as to revoke Plaintiff Vaughan's USCF Tournament Director certification, without benefit of USCF's own established procedures, and without any hearing. Clearly, Plaintiffs have made a prima-facie showing of facts sufficient to establish a reasonable probability of success on the merits in this action.
Finally, legal remedies will be insufficient to afford complete relief for the harms which Plaintiffs have suffered and are suffering in this matter. In the years since NSCA's formation in 1989, Plaintiff Vaughan and the other members of the NSCA have invested enormous time and effort in their drive to promote the popularity of chess as a form of sport and entertainment among Nevada's youth. By their actions in refusing to recognize NSCA as the properly-anointed local affiliate organization, Defendants have effectively driven a wedge between these dedicated individuals and their youthful following. The smear campaign which USCF and its' local minions have engaged in against Plaintiffs threatens to erode the significant progress which Plaintiffs have made through their time and effort. No form of monetary compensation can ever undo the damage which Plaintiffs have suffered, and which they continue to suffer to this very day.
In accordance with the foregoing points and authorities, Plaintiffs, Stan Vaughan and Nevada State Chess Association, Inc. respectfully pray that this court enter its order granting them entry of a preliminary injunction as requested above, or, alternatively, grant them an expedited trial of this matter, consolidating the same with hearing upon this motion, as provided by N.R.C.P. 65 (a)(2).
Respectfully submitted this _____ day of December, 1997.
ROBERT L. BOLICK, LTD.
Brent D. Percival, Esq.
Nevada State Bar No. 003656
6060 W. Elton, Ste A.
Las Vegas, Nevada 89109
I believe that this suit is frivolous. Had I been elected President of the USCF in 1996 (I ran but was defeated overwhelmingly) I would simply have ignored this suit. The Clark County, Nevada District Court clearly has no jurisdiction to grant the relief requested.
However, the USCF has responded to this and other Stan Vaughan suits. Thus far, the USCF has spent more than $100,000 in legal fees in the Stan Vaughan matters, some of which was paid to Hanon W. Russell.
Although I feel that this suit lacks merit, I also feel that the dues paying members of the USCF are entitled to know how their dues money is being spent. I have posted this pleading for that reason.
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