Virginia College, LLC v. SSF Savannah Properties, LLC et al

Filing 26

ORDER granting in part and denying in part 2 Motion for TRO. This order binds all of the parties, the parties' officers, agents, servants, employees, and attorneys. Pursuant to Fed.R.Civ.P. 65(c), the Plaintiff must post bond with the Clerk o f the U.S. District Court in the amount of $200,000 by 2/6/15. At least ten percent of that amount must be presented to the Clerk in cash with the remainder satisfied by way of the letter of credit. Signed by Chief Judge Lisa G. Wood on 2/4/2015. (ca)

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VIRGINIA COLLEGE, LLC,
Plaintiff,
V

CV 415-010

.

SSF SAVANNAH PROPERTIES, LLC;
POLE POSITION RACEWAY, INC.;
SAVANNAH RACEWAY, LLC; and P2R
KARTING, INC.,
Defendants.
PRELIMINARY INJUNCTION

Someone thought it would be fine to install an indoor gokart racetrack on top of a college. Because there is a
substantial likelihood that the decision was not fine and,
indeed, tortious, the Court grants, in part, the College's
motion for a preliminary injunction.
Plaintiff Virginia College, LLC, operates a vocational
college on the ground floor of what used to be a department
store at the Savannah Mall. The Savannah Mall is owned by
Defendant SSF Savannah Properties. Four years after the College
moved into the space at the Mall, Defendant Pole Position
Raceway entered into a lease with SSF to occupy the space

directly above the College and operate a go-kart racetrack.' The
College claims that the incessant whirring, bumping, and
vibrations caused by the racetrack hamper its educational
mission and will cause irreparable harm to the College and its
students if the nuisance is not immediately abated. The College
has filed a complaint against Pole Position and the Mall, and
has asked this Court to issue a preliminary injunction enjoining
Pole Position from operating its racetrack at all times. Dkt.
no. 2. The Court GRANTS the College's motion in part and DENIES
it in part. A complete injunction would not be equitable, nor
necessary: Pole Position is enjoined from operating its
racetrack on weekdays (Monday through Friday) until the
conclusion of the May 11, 2015 trial. In the interim, Pole
Position may continue its normal operations on the weekends
(Saturday and Sunday). Additionally, Pole Position may continue
to operate the non-racetrack components of its operation, such
as the videogames, pool tables, and concession stands, seven
days a week.
This Order is not a decision on the merits. Instead, the
Court addresses only the precise question before it: whether the
College is entitled to the extraordinary remedy of a preliminary
injunction. This Court cannot issue an injunction unless
Plaintiff shows "that [it] is likely to suffer irreparable harm
1

Throughout this Order, 'Pole Position" will refer collectively to Defendants
Savannah Raceway, LLC, Pole Position, Inc., and P2R Karting, Inc.

2

in the absence of preliminary relief." Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). Because the College
has failed to show that Pole Position's continued weekend
operations will cause it irreparable harm, the Court denies its
motion to the extent that the College seeks to enjoin those
operations. However, after finding that continued operations
during the week will irreparably harm the College's educational
mission, the Court issues the injunction to that extent.
All Defendants have received notice and have participated
in the hearings prior to the issuance of this Order.
In ruling on Plaintiff's motion for a preliminary
injunction, the Court relies upon the following findings of fact
and conclusions of law.
FINDINGS OF FACT

1. Plaintiff Virginia College ("the College"), an Alabamabased for-profit school, leased approximately 51,781 square feet
of space in the Savannah Mall for use aT its Savannah Campus on
July 15, 2010. The Lease was for 15 years. Dkt. no. 1-2 ("VC
Lease").
2. The College leases the bottom floor of what used to be a
department store at the Mall. The escalators and other equipment
which connected the upper and lower floors of the department
store were removed and the floor sealed off prior to the College
leasing the space for its campus.
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3. Section 3(g) of the College's Lease states:
[SSF] shall have the exclusive right to remodel,
expand, contract or otherwise alter or change any
portion . . . of [Savannah Mall] other than the
Premises [leased to the College] . . . provided that
such activities shall not materially interfere with
[the College's] use. 4. Section 11 of the VC Lease states:
[SSF] agrees that if Tenant shall perform all of the
covenants and agreements herein to be required to be
performed by Tenant, Tenant shall, subject to the
terms of this Lease, at all times during the Term have
peaceful and quiet possession of the Premises and the
rights, easements and appurtenances thereto leased to
Tenant hereunder. [SSF] represents to and covenants
with Tenant that: . . . (e) [SSF] shall not enter into
any covenants, easements or other agreements after the
date of this Lease that prohibit or restrict Tenant's
Permitted use or otherwise change the terms of this
Lease without Tenant's prior written consent, which
may be withheld in Tenant's reasonable discretion.
5. At its Savannah Campus, the College offers 14 vocational
programs to approximately 550 students, including massage
therapy, medical billing and coding, cosmetology, business
administration, pharmacy technician, and surgical technology.
Most of the College's students are "non-traditional" students.
Hr'g Tr. 18. Many of the students work other jobs while pursuing
their degrees or certificates, some are working parents, and
approximately 20 percent are veterans of the armed services. Id.
at 18, 31-32. It is not uncommon for some of the former
servicemen and women to have been diagnosed with Post Traumatic
Stress Disorder, or PTSD. Id. at 30, 32. The College also

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employs 56 workers full-time and about 20 adjunct instructors
part-time. Id. at 18.
6. The College's programs are designed to meet
accreditation and licensing standards for the vocational degrees
and certificates it offers. For example, the massage students
must complete a certain number of hours of hands-on massage
training on paying members of the public. Id. at 54-55.
Likewise, the cosmetology students must practice their
techniques on members of the public. Id. at 20. These customers
pay the College for the services the students provide them, and
they also fill out evaluation forms on the students' performance
so that instructors may evaluate their skills and progress. Id.
at 55.
7. Sometime in 2013, after the College was well-established
in its space at the Savannah Mall, SSF entered into a lease
agreement with Defendant Pole Position Raceway ("Pole Position")
for the space directly above the College's campus. Defendants
entered into the Pole Position Lease with the intention and
understanding that Pole Position would renovate the space and
use it as an indoor go-kart racetrack.
B. On November 14, 2013, counsel for the College sent a
letter to SSF declaring that the College would not consent to
the Pole Position Lease without assurances from SSF that Pole

Position's premises would be adequately soundproofed to prevent
any disturbances to the College's campus. Dkt. no. 1-3.
9. On December 4, 2013, counsel for SSF responded to the
College, stating that "[d]ue consideration was given to Pole
Position's particular type of use and operation and to Virginia
College's permitted use of its Premises before the Landlord made
it determination to enter into the Pole Position lease without
seeking your client's approval." Dkt. no. 1-4.
10. The College never consented to SSF's lease with Pole
Position.
11. Before opening its track for business, Pole Position
hired an acoustic consultant to conduct a sound study of its
operations in July, 2014. The consultant tested the noise
generated by the operation of the go-karts at several locations
within the College. The study found that the normal, ambient
sound level in the college was 30 decibels. When Pole Position
simulated operations for purposes of the test, the sound levels
rose into the 40s and were "even over 50 [decibels] on
occasion . . ." Dkt. no. 17-2 ("Ehnert Aff."), p. 7. The report
did not state, and the parties have since been unable to say,
what specific decibel level the noise reached when it peaked in
the 50s. Id.
12. Savannah City Code Section 9-2034 limits sound levels,
as measured from the receiving premises, to 65 decibels for

businesses and 55 decibels for "noise-sensitive areas" Savannah
City Code § 9-2034. "Noise-sensitive areas" are places where
"noise-sensitive activities" are conducted, and such activities
include the operation of schools. § 9-2032(15), (16).
13. No one disputes that Virginia College is a school.
14. Virginia College's mission statement states:
The goal of Virginia College lies in its
responsibility to its students, the technical and
business communities, and the general citizenry. The
college provides educational opportunities through
curricula in business, business-related,
administrative, management, technical and professional
programs that are designed to prepare the student for
direct entry into the job market.
"Mission Statement," Dkt. no. 23-1, p. 3.
15. Pole Position had a "soft opening" to the public on
December 17, 2014.
16. Since the soft opening, students and faculty at the
College have complained of significant disruptions to the
learning environment on the campus caused by "continuous
squealing, pounding, whirring, and rattling sounds as well as
loud music and the sound of Pole Position's employees shouting
instructions to Pole Position patrons." Dkt. no. 18, ¶ 28.
17. At a hearing for the instant motion, the College's
President, faculty, and students provided the following
unrebutted testimony as to the effects of these disruptions:

1:1

18. Dr. Kristan Ryan, President of the College, narrated a
video recording that portrayed the types of sounds and
vibrations emanating from the racetrack in various classrooms
and spaces throughout the campus. In the video, loud bumps and
other sounds can be heard throughout the campus. The video also
shows how drop-down projectors, along with the images they
project, shake and vibrate when go-karts pass on the racetrack
above them. Dr. Ryan said that sounds and vibrations such as
those shown in the video were typical, and that the shaking
continues in approximately 25 minute increments, with small
breaks in between. Hr'g Tr. 23-28.
19. Dr. Ryan has received several complaints about the
distractions from students, as well as from members of the
public who come to the College's clinical training centers.
There is no "safe zone," and the entire campus is affected by
the noise. Some students have personally told Dr. Ryan that they
may not be able to continue at the College because of the noise
going on above them. Id. at 28-30.
20. Dr. Ryan testified that the College cannot change its
class schedules to accommodate Pole Position's operations
because many students work during the day, and their schedules
cannot be changed mid-semester. If the College were to cancel
classes, the accreditation boards that oversee the College would
require that the College find other schools to take its students
F;]

and would also require that the College refund moneys received
from the federal government and from students. Such
circumstances would be particularly burdensome to some students
who receive Pell Grants, because there is a lifetime maximum to
the amount of funds an individual can receive under the Pell
Grant program. Id. at 32-36.
21. Dr. Ryan testified that it would be impractical for the
College to move to another space. Significant alterations were
made to the leased space to create a simulated pharmacy lab,
salon clinic, massage studio, and other settings. Some of the
College's programs rely on computer labs and specialized
equipment that cannot be moved without considerable expense. Id.
at 38.
22. The college operates from 7:30 a.m. to 10:30 p.m.,
Monday through Friday, and 9:00 a.m. to 3:00 p.m. on Saturdays.
There are no classes on Saturdays, but on that day the salon
clinic is open for the cosmetology students to make up for any
clinic time they may have missed during the week. The school is
closed on Sundays. Id. at 38-39, 45.
23. Mr. Nathan Nordstrom, Program Director for therapeutic
massage at the College, testified to the effects of the
racetrack on his particular program. Since Pole Position opened
to the public, Mr. Nordstrom has had a hard time keeping his

students' attention. His students' grades, including those of
top performers, have also slipped. Id. at 54, 60.
24. The massage clinic tries to maintain a peaceful and
relaxing ambiance for its customers. Since Pole Position opened
to the public, Mr. Nordstrom has tried to drown out the sound of
the squealing tires by playing relaxing music. However, he has
been unable to ameliorate the noise. Id. at 54-60.
25. Per Georgia's licensing requirements for massage
therapists, Mr. Nordstrom's students must complete a certain
number of clinical hours working with the public. To evaluate
the students, the clinic collects written evaluations of the
students' performance from paying massage customers. Some of the
recent evaluations include complaints about the noise coming
from overhead during the massages. One customer in particular,
on the day before the Court conducted its hearing, complained in
an evaluation: "Noise above totally distracting," and rated her
experience as a 1 out of 10. This customer also noted that her
least favorite part of the massage was her "inability to focus
and relax due to noise and ceiling shaking." Id.
26. Ms. Stephanie Collison teaches medical assistance and
related classes at the College. Ms. Collison uses projected
visual aids, such as PowerPoint presentations, during her
lectures. The vibrations caused by the go-kart races, though,
shake the projector she uses such that students cannot read what
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is on the screen. She now spends a considerable amount of time
preparing print-outs of her presentations for each student
because she cannot rely on the projector. Id. at 67-70.
27. Henry Walker is a student at the College studying
medical assistance. Mr. Walker formerly served in the United
States Army and is a combat veteran of the Gulf War. He has
since been diagnosed with PTSD. The noise and vibrations coming
from the racetrack make it hard for Mr. Walker to concentrate on
his studies. Mr. Walker is President of the Veteran's Club on
campus. The club has approximately 115 members, many of whom
have also been diagnosed with PTSD and find it hard to
concentrate through the noise associated with the racetrack. Id.
at 72-76.
28. Adam Clark is a student at the College studying medical
office administration. He served in the Navy for almost 12 years
on aircraft carriers. He has been diagnosed with PTSD, and the
distinct noises caused by the racetrack are reminiscent of the
sounds he heard during his service on aircraft carriers. These
noises have affected his ability to concentrate during class and
when studying on campus. Id. at 78-84.
29. In addition to these students with PTSD, the College
has submitted declarations from several students who attest that
they have no disabilities or other impairments that make them
unusually sensitive to sounds and vibrations. Some of the
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following students' statements are typical of the sentiments
expressed by this group:
• The noise is "incredibly distracting" and the distraction
is affecting the students' grades. Decl. of Jana Butler,
Dkt. no. 23-2, p. 2.
• "For most of the school day, the ceiling is shaking and
makes everyone feel very uncomfortable that the ceiling
will fall or a go-kart will fall straight through the
ceiling. This problem needs to be addressed because it is
affecting my learning experience at Virginia College."
Decl. of Nachelle Lee, Id. at 4.
• The distraction "takes a serious toll on our learning when
we cannot concentrate due to the noise and vibrations."
Decl. of Tina Phothisene, Id. at 6.
• Pole Position's operations are causing noise that is "very
irritating. . . Pole Position's operations are preventing
me from getting my full experience at Virginia College."
Decl. of Monique Brown, Id. at 16.
• "Pole Position's constant noise interrupts the
communications process and is outright disruptive. Their
consistent noise pollution is interfering with the
commitment I made to my education. I have struggled to

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learn because of Pole Position's activities." Deci. of
Cauwna Bowman, Id. at 20.
30. While Pole Position has been open to the public since
December 17, 2014, its "grand opening" has not yet occurred. No
one disputes that volume will only increase after the publicized
opening. Id. at 92, 109.
31. In addition to conducting a hearing on the preliminary
injunction, the Court conducted a site visit to the Mall on
January 30, 2015, accompanied by all parties and their counsel.
The Court personally observed both the racetrack in operation
and the sounds and vibrations at the College's campus. Id. at
106.
CONCLUSIONS OF LAW

1. "A preliminary injunction is an extraordinary remedy
never awarded as of right. In each case, courts must balance the
competing claims of injury and must consider the effect on each
party of the granting or withholding of the requested relief."
Winter, 555 U.S. at 22.
2. A plaintiff seeking a preliminary injunction must make
four showings: "that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest." Id. at
20.
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3. The Plaintiff must clearly meet the burden of persuasion
on these four issues. Four Seasons Hotels and Resorts, B.V. v.
Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir. 2003);
accord Winter, 555 U.S. at 22.
4. When a court issues an injunction, the court's order
must "state its terms specifically" and must "describe in
reasonable detail—and not by referring to the complaint or other
document—the act or acts restrained or required." Fed. R. Civ.
P. 65(d) (1); accord Schmidt v. Lessard, 414 U.S. 473, 475-77
(1974); Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d
1188, 1203 (11th Cir. 2001)
I. Likelihood of Success on the Merits

5. Plaintiff has brought claims for breach of contract and
nuisance. Dkt. no. 18, pp. 11-14.
6. In order to demonstrate that it is likely to prevail on
the merits, Plaintiff must show a substantial likelihood of
success on the merits. Cable Holdinqs of Battlefield, Inc. v.
Cooke, 764 F.2d 1466, 1474 (11th Cir. 1985) (emphasis added)
7. Georgia law defines "nuisance" as
anything that causes hurt, inconvenience, or damage to
another and the fact that the act done may otherwise
be lawful shall not keep it from being a nuisance. The
inconvenience complained of shall not be fanciful, or
such as would affect only one of fastidious taste, but
it shall be such as would affect an ordinary,
reasonable man.

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Ga. Code Ann. § 41-1-1. Whether a noise emanating from a lawful
business is a nuisance "depends upon the nature of the
locality . . . on the degree of intensity and disagreeableness
of the sounds, on their times and frequency, and in all
cases . . . on their effect, not upon peculiar and unusual
individuals, but upon the ordinary, normal, reasonable persons
of the locality." Warren Co. v. Dickson, 195 S.E. 568, 570 (Ga.
1938). Mere violation of a city ordinance does not create a
private nuisance. Jillson v. Barton, 229 S.E.2d 476, 478 (Ga.
Ct. App. 1975)
8. To prove a nuisance, therefore, the College must show
that Pole Position's operation of a go-kart racetrack on the
floor directly above its campus creates noise and vibrations
with such frequency and intensity that a reasonable, ordinary
person would be inconvenienced or hurt.
9. To this end, the College's evidence of its numerous
students with PTSD and other conditions that make them specially
sensitive to the noises and vibrations coming from the racetrack
must be disregarded. Such persons are decidedly not "ordinary"
persons for purposes of determining whether conduct constitutes
a nuisance.
10. Nevertheless, the College has proven a substantial
likelihood that it will be able to show that Pole Position is
creating a nuisance because of the racetrack's effect on normal
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and ordinary individuals who work, study, or receive services at
the College.
11. Mr. Nordstrom testified that his students are uniformly
distracted by the noise and vibrations coming from the racetrack
above. He also testified that members of the public who come to
the College to receive massages and give feedback to students
have complained about the noise, saying that the noise has
degraded their massage experiences.
12. Additionally, Ms. Collison testified that her classes
are frequently disrupted by vibrations that shake the projector
she uses during class. Where she could previously rely on the
projector alone for her presentations, she now has to take time
away from class to print copies for students to follow along
with her presentations because the projected presentations are
no longer effective teaching tools.
13. The Court witnessed firsthand the nature of the noise
coming from the racetrack above the campus during its site visit
on January 30, 2015. Such noise and vibrations similar to what
the Court witnessed on January 30 are substantially likely to
constitute a nuisance.
14. Because the College has shown that these ordinary
individuals, their students, and their customers have been hurt,
inconvenienced, and damaged by the operation of the racetrack,
the College has shown a substantial likelihood that it will
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prove at trial that the operation of the racetrack constitutes a
nuisance.
15. The acoustic evaluation secured by Pole Position does
little to rebut the College's evidence and proves that, in fact,
even before the racetrack's full opening, noise levels spiked
into troubling levels. The evaluation was conducted under
simulated conditions in July of 2014, months before Pole
Position's soft opening to the public in December. Also, the
vague conclusions in the report (e.g., that the noise levels
reached "into the 50s") render it incapable of showing that Pole
Position's operations do not breach the Savannah Municipal
Code's limit of 55 decibels for "noise-sensitive" areas, to the
extent that the Code can be used as a benchmark. Finally, Pole
Position suggested at the January 30, 2015 hearing that this
volume would likely increase after Pole Position's grand
opening.
16. Thus, the Court concludes that the College has a
strong—although not impregnable—nuisance claim under Georgia law
as to Pole Position's racetrack operations.
17. Because the College has demonstrated that it has a
substantial likelihood of success on its nuisance claim, the
Court does not assess the viability of the College's breach of
contract claim at this time.

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II. Likelihood of Irreparable Harm

18. Before the Court may issue a preliminary injunction,
the Plaintiff must show that irreparable harm is not merely
possible, but likely. Winter, 555 U.S. at 22 (rejecting
"possibility" standard as too lenient and writing, "[o]ur
frequently reiterated standard requires plaintiffs seeking
preliminary relief to demonstrate that irreparable injury is
likely in the absence of an injunction." (emphasis in
original)).
19. "An injury is 'irreparable' only if it cannot be undone
through monetary remedies." United States v. Jenkins, 714 F.
Supp. 2d 1213, 1221 (S.D. Ga. 2008) (citations omitted).
20. The loss of customers and goodwill has been recognized
as an irreparable injury because these intangible assets are
impossible to quantify, and thus do not lend themselves to
rernediation through money damages. See, e.g., Ferrero v. Assoc'd
Materials, 923 F.2d 1441, 1449 (11th Cir. 1991)
21. Through Dr. Ryan's detailed testimony about the
particular harms the school and its students will suffer if the
nuisance is not abated, the College has shown a substantial
likelihood of irreparable harm.
22. Dr. Ryan testified that the school cannot cancel
classes to work around the nuisance because such cancellations
could cost the school its accreditation. She also testified that
WO.

the nuisance is undermining the College's educational mission.
Students cannot concentrate. They are not learning. Their grades
are slipping. Both of these continuing threats—the loss of the
school's accreditation and its failure to fulfill its reason for
existence—are harms that cannot be undone through monetary
damages.
23. Dr. Ryan also testified that a vast majority of the
College's students receive financial aid, such as Pell Grants.
Because of the Pell Grant program's lifetime caps, students who
have already used aid from Pell Grants towards one semester's
tuition may not be able to re-apply for those funds at a later
date if the school either closes due to the nuisance or if the
students quit their studies due to the futility of trying to
learn beneath an operating go-kart track. Because many of these
students are "non-traditional," Dr. Ryan testified that it would
be unlikely for them to get their education back on track if it
is derailed by poor performance or debilitating distractions.
The long-term effects that Pole Position's alleged nuisance
could have on the students' educational careers, then, is
another harm that cannot be undone through money damages.
24. The various declarations of Virginia College students
who have no particular sensitivities to noise and sound show
that ordinary persons trying to study and learn at the College
are unable to concentrate and are frequently distracted by the
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nuisance above their heads. Many of these students feel that
their educational pursuits at the College are being compromised.
25. All of the evidence of the harm that Pole Position's
alleged nuisance causes is from teachers and students who teach
or take classes during the workweek. While there is evidence
that the school operates a salon on Saturdays, there was no
evidence presented suggesting that the operation of the
racetrack will create an irreparable harm to students at the
College who conduct their clinic hours in the salon on
Saturdays. Additionally, no evidence was presented at the
hearing as to whether the salon requires a peaceful, relaxing
ambiance, as is the case with the massage clinic, to be
effective. Furthermore, the College has conceded that it would
not be harmed by Pole Position's operations on Sundays. As such,
the College has failed to show a likelihood of irreparable harm
from Pole Position's operations on the weekends (Saturday and
Sunday).
26. In sum, the College has demonstrated that continued
operation of the go-kart racetrack would create a likelihood of
irreparable injury to both the College and its students, who are
the intended beneficiaries of the College's educational mission.
The school is unable to successfully complete its mission with
the squealing, whirring, and bumping overhead. The educational
opportunities are limited and lost by maintenance of a nuisance.
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Money damages would not call them back. Plaintiffs have failed
to demonstrate, however, that operation of the racetrack on the
weekends is likely to cause irreparable harm.
III. Balance of the Equities

27. When a District Court grants a preliminary injunction,
it should weigh the equities carefully. Cursory analysis is
insufficient. Winter, 555 U.S. at 26.
28. Several equitable considerations weigh in the College's
favor. Virginia College's mission is to educate students so that
they may adequately learn new vocational skills. If Pole
Position's operations continue unabated, this mission will be
hampered, as evidenced by Mr. Nordstrom's testimony that many of
his students' grades have dropped since the races began in
December. Furthermore, the College's reputation in the community
as an effective vocational college could be damaged if the races
continue during the College's classes and clinics.
29. Some equitable factors, though, weigh in favor of Pole
Position. A preliminary injunction ordering Pole Position to
cease all operations would cause tremendous loss to Defendant.
During the soft opening, Pole Position's gross profits were
$53,857.66 in December 2014 and $106,098.46 in January 2015, as
of January 29. A complete injunction requiring Defendants to
cease all operations at all times until trial is overly broad,
unnecessary and not equitable.
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30. Pole Position's biggest revenue-generating days are
during the weekends. Conversely, most of the College's
operations occur during the week.
31. Upon weighing the above factors, the Court concludes
that the balance of the equities favors Pole Position insofar as
the Court considers the College's request for a complete
injunction. However, the balance of the equities would favor the
College upon consideration of a more tailored injunction that
only prohibits Pole Position from operating its track on
weekdays. Such an approach would allow Pole Position to continue
to operate on its biggest revenue days, and would allow the
College to enjoy its premises in peace and quiet on those days
when it needs it the most.
IV. Public Interest

32. The public has a strong interest in ensuring that
outside forces do not make educational centers unconducive to
learning.
33. True, Virginia College is a proprietary college. It
does not hold itself out as anything else. Nevertheless, it
serves a worthy mission in offering a way for veterans and
others already in the working world to better their career
options.

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34. The public has an interest in seeing vocational
colleges achieve their mission, as the College helps members of
the community climb the socioeconomic ladder.
35. Defendants argue, rightly so, that the public also has
an interest in being able to choose from a variety of
diversions. The Court has no difficulty in finding that the
public's interest in maintaining a nuisance-free facility for
workers to learn better job skills outweighs the public's
interest in riding go-karts indoors on demand, seven days a
week.
36. The Court concludes that the public interest in
granting a modified injunction favors the College.
CONCLUSION

The College has met Winter's four prerequisites for a
preliminary injunction as to Pole Position's racetrack
operations during the week (Monday through Friday), but not as
to those operations on the weekend (Saturday and Sunday)
Therefore, the Court GRANTS the College's motion for a
preliminary injunction in part and DENIES the motion in part.
Dkt. no. 2.
The Court hereby enjoins Pole Position Raceway from
conducting go-kart racing activities at all times during the
workweek (Monday through Friday). This injunction does not
prohibit Pole Position from conducting go-kart racing activities
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at any time during the weekends (Saturday and Sunday), and
neither does it prohibit Pole Position from engaging in its
ancillary attractions (such as arcade games, concessions, video
games, and pool tables) during the week. The injunction applies
to Pole Position Raceway's location on the second floor of the
Savannah Mall until the May 11, 2015 trial on the merits has
concluded.
This order binds all of the parties, the parties' officers,
agents, servants, employees, and attorneys.
Pursuant to Federal Rule of Civil Procedure 65(c), the
Plaintiff must post bond with the Clerk of the U.S. District
Court in the amount of $200,000 by February 6, 2015. At least
ten percent of that amount must be presented to the Clerk in
cash with the remainder satisfied by way of letter of credit.

SO ORDERED, this

Georgia at

4

A

L4ç

day of February, 2015 in Savannah,

ol clock.p. M •

'GODBEY WOOD, CHIEF JUDGE
I'ED STATES DISTRICT COURT
THERN DISTRICT OF GEORGIA

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