UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

)
)
TERRANCE ALTON COX III and )
DIVERSITY MOTORSPORTS RACING, LLC, )
)
Plaintiffs, )
v. ) Case No. 3:16-cv-00843-FDW-DCK
)
NATIONAL ASSOCIATION FOR STOCK CAR )
RACING, INC., )
)
Defendant. )
)
)

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT NATIONAL

ASSOCIATION FOR STOCK CAR AUTO RACING, INC.

Defendant National Association for Stock Car Auto Racing, Inc. (“NASCAR”), pursuant to

Federal Rules of Civil Procedure 8 and 12, and other applicable law, files this Answer and

Affirmative Defenses to the Plaintiffs’ Amended Complaint.

NASCAR denies Plaintiffs’ allegations. Plaintiffs were not denied any rights because of their

race and NASCAR did not discriminate against them. NASCAR works hard to increase diversity in

stock-car racing, as demonstrated by the successes of its multi-pronged Drive for Diversity initiative

– an initiative that includes supporting a series of race teams through its partner Rev Racing, and a

crew member development program – and its Diversity Internship Programs, as well as its

participation in the Ross Initiative in Sports for Equality. As shown below, NASCAR generally

denies the allegations in the Amended Complaint and expressly asserts several affirmative defenses.

In response to the specifically numbered allegations in the Amended Complaint, NASCAR

states as follows:

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 1. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

2. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

3. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied. NASCAR admits, however,

that in public records filed with the North Carolina Secretary of State on January 12, 2017, Terrance

Cox applied for the reinstatement of Diversity Motorsports Racing, LLC, which had been

administratively dissolved on March 4, 2014. NASCAR admits that Mr. Cox signed the application

for reinstatement as “CEO” of Diversity Motorsports Racing, LLC.

4. Admitted.

5. Admitted. In further response, NASCAR states that, on February 22, Plaintiffs

voluntarily dismissed their claims against all the NASCAR teams, including Roush Fenway Racing,

LLC (“Roush”). Dkt. 42.

6. Admitted.

7. Admitted.

8. NASCAR admits that Plaintiffs seek a jury trial.

9. Admitted that NASCAR is a very successful sport.

10. Admitted that NASCAR sanctions approximately 1,500 races annually at over 100

tracks.

11. Denied.

12. Denied.

13. Admitted.

14. Denied.

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 15. Admitted.

16. Denied.

17. Denied.

18. Admitted.

19. Denied.

20. Denied.

21. In response to Paragraph 21, NASCAR states that NASCAR’s Website is a

document in writing that speaks for itself; accordingly, NASCAR denies any allegations contained in

Paragraph 21 of the Amended Complaint that are inconsistent with the explicit terms thereof.

22. In response to Paragraph 22 , NASCAR states that NASCAR’s Website is a

document in writing that speaks for itself; accordingly, NASCAR denies any allegations contained in

Paragraph 22 of the Amended Complaint that are inconsistent with the explicit terms thereof.

23. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

24. Denied.

25. Admitted.

26. Admitted.

27. In response to Paragraph 27, NASCAR states that its US Census records are public

records and those records speak for themselves. NASCAR denies the allegations in Paragraph 27 to

the extent that they are inconsistent with public records.

28. In response to Paragraph 28, NASCAR states that its US Census records are public

records and those records speak for themselves. NASCAR denies the allegations in Paragraph 28 to

the extent that they are inconsistent with public records.

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 29. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

30. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

31. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

32. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

33. Denied.

34. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

35. Denied.

36. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied. NASCAR has no ability to

know what Plaintiffs do or do not believe. Subject to that clarification, however, NASCAR denies

the substance of this allegation.

37. Denied.

38. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

39. NASCAR admits that, in 2009, Plaintiff Cox met with Marcus Jadotte, NASCAR’s

former NASCAR VP of Public Affairs & Multicultural Development, and Dawn Harris, NASCAR’s

Director of Multicultural Development to discuss Cox’s interest and involvement in stock car racing

and NASCAR’s Drive for Diversity program. NASCAR denies the remaining allegations set forth in

this paragraph.

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 40. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

41. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

42. Denied.

43. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

44. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

45. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

46. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

47. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

48. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

49. Denied.

50. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

51. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

52. Denied.

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 53. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

54. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

55. Denied.

56. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

57. Admitted, but denied as to any allegations regarding Diversity Motorsports’ race car.

58. NASCAR admits there was a press conference during the Subway Firecracker 250.

NASCAR denies the remaining allegations set forth in this paragraph.

59. Denied.

60. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

61. Denied.

62. Denied.

63. Denied.

64. Denied.

65. Denied.

66. NASCAR admits that it has not attempted to find sponsors for the Racing 4

Education program. NASCAR denies, however, that it had any legal or contractual obligation to do

so.

67. Denied.

68. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

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 69. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

70. Denied.

71. Denied.

72. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

73. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

74. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

75. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

76. Denied.

77. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

78. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

79. Denied.

80. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

81. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

82. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

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 83. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied. NASCAR has no ability to

know what Plaintiffs do or do not believe. Subject to that clarification, however, NASCAR denies

the substance of this allegation.

84. NASCAR admits that it created the Drive for Diversity program in 2004 to develop

and train minority and female drivers both on and off the racetrack. NASCAR denies the remaining

allegations set forth in this paragraph.

85. Denied.

86. Denied.

87. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

88. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied. NASCAR has no ability to

know what Plaintiffs do or do not believe. Subject to that clarification, however, NASCAR denies

the substance of this allegation.

89. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

90. Denied.

91. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

92. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

93. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

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 94. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

95. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

96. Denied.

97. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

98. Denied.

99. Denied.

100. Denied.

101. Denied.

102. Denied.

103. NASCAR admits that, in or around May 2015, Cox communicated with some

representatives of NASCAR.

104. NASCAR denies the allegations in this paragraph as stated. In further response,

NASCAR states that, on May 19, 2015, a paralegal in NASCAR’s legal department sent Mr. Michael

Griffin and Plaintiff Cox a letter declining their solicitation regarding the Reach1Teach1 program.

The express reason that NASCAR declined Mr. Griffin and Cox’s solicitation was because

NASCAR was already focused on other similar initiatives, including its Acceleration Nation

program, a national learning and entertainment platform for kids. In further response, NASCAR

states that the letter explained that, in an effort to protect Mr. Griffin and Cox’s original ideas and

avoid the possibility of future misunderstandings regarding the origination of certain creative works,

it is NASCAR’s policy to destroy all of the unsolicited electronic correspondence that Mr. Griffin

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and Cox had submitted to NASCAR regarding the Reach1Teach1 program. NASCAR denies that

the letter directed Cox and Mr. Griffin to cease all future communications with NASCAR.

105. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

106. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

107. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

108. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

109. Denied.

110. Denied.

111. Denied.

112. Denied.

113. Denied.

114. NASCAR denies the allegations in this paragraph as stated. In further response,

NASCAR states that, in and around June 2015, Cox forwarded multiple unsolicited emails, letters,

and other communications to various NASCAR personnel regarding the Reach1Teach1 program.

On June 29, 2015, NASCAR’s corporate counsel sent Cox a letter stating that, while it greatly

appreciated Cox’s continued interest and efforts to increase diversity in racing, NASCAR was

already deeply invested in its own diversity initiatives to grow interest in motorsports amongst

minority groups and through youth education. The letter explained that, because NASCAR had

already settled on a business plan governing these initiatives, NASCAR was not interested in

pursuing any partnership or affiliation with Diversity Motorsports or the Reach1Teach1 program.

10

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The letter also asked Cox to refrain from sending any future correspondence to NASCAR through

any means other than forwarding it directly to its corporate counsel’s attention.

115. Admitted.

116. Denied.

117. In response to paragraph 117, NASCAR admits that all of the entities who are part

of the RISE initiative, including NASCAR, do not support discrimination in sports or elsewhere.

NASCAR denies the remaining allegations set forth in this paragraph.

118. In response to Paragraph 118, NASCAR states that the article cited therein is a

document in writing that speaks for itself; accordingly, NASCAR denies any allegations contained in

Paragraph 118 of the Amended Complaint that are inconsistent with the explicit terms thereof.

119. In response to Paragraph 119, NASCAR states that the article cited therein is a

document in writing that speaks for itself; accordingly, NASCAR denies any allegations contained in

Paragraph 119 of the Amended Complaint that are inconsistent with the explicit terms thereof.

120. Denied.

121. Denied.

122. Denied.

123. NASCAR lacks information sufficient to admit or deny the contents of the

allegations set forth in this paragraph, which therefore stand denied.

124. NASCAR incorporates by reference its responses to Paragraphs 1-23 of the

Amended Complaint as if fully set forth herein.

125. Denied.

126. Denied.

127. Denied.

128. Denied.

11

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 129. Denied.

130. Denied.

131. NASCAR denies that Cox is entitled to any relief for the claims asserted in the

Amended Complaint and, specifically, NASCAR denies that Cox is entitled to the relief requested in

its prayer for relief.

132. NASCAR incorporates by reference its responses to Paragraphs 1-131 of the

Amended Complaint as if fully set forth herein.

133. Denied.

134. Denied.

135. Denied.

136. Denied.

137. NASCAR denies that Diversity Motorsports is entitled to any relief for the claims

asserted in the Amended Complaint and, specifically, NASCAR denies that Diversity Motorsports is

entitled to the relief requested in its prayers for relief.

138. NASCAR incorporates by reference its responses to Paragraphs 1-137 of the

Amended Complaint as if fully set forth herein.

139. Denied.

140. Denied.

141. Denied.

142. Denied.

143. Denied.

144. Denied.

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 145. NASCAR denies that Cox and Diversity Motorsports are entitled to any relief for the

claims asserted in the Amended Complaint and, specifically, NASCAR denies that Cox and Diversity

Motorsports are entitled to the relief requested in their prayer for relief.

146. NASCAR denies that Cox and Diversity Motorsports are entitled to any relief for the

claims asserted in the Amended Complaint and, specifically, NASCAR denies that Cox and Diversity

Motorsports are entitled to the relief requested in their prayers for relief.

Wherefore, except as expressly admitted herein, NASCAR denies each and every allegation

contained in the Amended Complaint and denies that Plaintiffs are entitled to any of the relief

requested in their prayer for relief. Having fully answered and defended, NASCAR prays that the

claims be dismissed in full and that all costs be cast upon Plaintiffs.

NASCAR demands a trial by jury on all issues so triable.

FIRST DEFENSE

The Amended Complaint is barred, in whole or in part, based on the Plaintiffs’ failure to

state a claim upon which relief can be granted and/or failure to state a claim with sufficient factual

allegations.

SECOND DEFENSE

The Amended Complaint is barred because Plaintiffs were not subjected to intentional race

discrimination.

THIRD DEFENSE

Upon information and belief, Plaintiffs’ claims are barred, in whole or in part, by the

doctrines of estoppel, waiver, and/or unclean hands.

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 FOURTH DEFENSE

Upon information and belief, Plaintiffs’ claims are barred, in whole or in part, by Plaintiffs’

failure to take reasonable steps to mitigate their claimed damages, the existence of such damages

being hereby denied.

FIFTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, by the doctrines of contributory negligence,

in pari delicto and/or injury by fellow servant.

SIXTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because NASCAR did not act with malice or

reckless indifference to Plaintiffs’ protected rights and made reasonable, good faith efforts to

comply with applicable law.

SEVENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because NASCAR acted in good faith and

lawfully with respect to Plaintiffs, and any actions taken by NASCAR were taken for legitimate,

nondiscriminatory, and nonretaliatory reasons that would have been taken in the absence of any

protected status of Plaintiffs.

EIGHTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, by Plaintiffs’ failure to plead or allege

conditions and facts precedent to their claims.

NINTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, by the applicable statutes of limitations.

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 TENTH DEFENSE

Plaintiffs’ claims for discrimination in contractual relations are barred, in whole or in part,

because the allegedly discriminatory conduct did not concern the making, performance,

modification, or termination of contracts, or the enjoyment of all benefits, privileges, terms, and

conditions of a contractual relationship.

ELEVENTH DEFENSE

Plaintiffs’ claims for racial discrimination are barred, in whole or in part, because such

allegations are implausible and inconsistent with other allegations in the Amended Complaint.

TWELFTH DEFENSE

Plaintiffs’ claims for discrimination in contractual relations are barred, in whole or in part,

because no similarly-situated persons outside Plaintiffs’ protected class received more benefits or

were treated better than Plaintiffs.

THIRTEENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because Plaintiff Cox is not a proper

plaintiff under 42 U.S.C. § 1981.

FOURTEENTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because Plaintiff Diversity Motorsports LLC

was administratively dissolved for a 3-year period between 2014 and 2017 and, under North Carolina

law, a dissolved corporation “may not carry any business except that appropriate to wind up and

liquidate its business and affairs.” N.C. Gen. Stat. § 55-14-05.

FIFTEENTH DEFENSE

Plaintiffs’ claims for tortious interference are barred, in whole or in part, because NASCAR

had legitimate business interests in the subject matters at issue, and NASCAR did not unjustifiably

interfere with a specific existing or expecting contractual relationship or do so with malice.

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 SIXTEENTH DEFENSE

NASCAR denies that any action(s) or inaction(s) taken towards any Plaintiff was motivated

by race. Any action or inaction that any Plaintiff alleges to be discriminatory was based upon factors

other than race.

SEVENTEENTH DEFENSE

The Amended Complaint, and each purported cause of action contained therein, fails to

allege facts sufficient to allow recovery of attorneys’ fees.

EIGHTEENTH DEFENSE

Plaintiffs’ claims for punitive damages are barred because a demand for punitive damages

must be “specifically stated, except for the amount, and the aggravating factor that supports the

award of punitive damages shall be averred with particularity.” N.C. R. Civ. Proc. 9(k).

NINETEENTH DEFENSE

Plaintiffs’ claims for punitive damages are barred because they cannot prove that NASCAR

acted with malice or with any other requisite intent to harm, and any imposition of punitive damages

would be unconstitutional under applicable state or federal law.

NASCAR reserves the right to raise other affirmative defenses that may subsequently

become or appear applicable to some or all of Plaintiffs’ causes of action.

Respectfully submitted on March 2, 2017.

/s/ Brian D. Boone

Brian D. Boone
N.C. Bar No. 38910
ALSTON & BIRD LLP
101 South Tryon Street, Suite 4000
Charlotte, North Carolina 28280
Phone: 704.444.1000
brian.boone@alston.com

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 John E. Stephenson, Jr.
(pro hac vice)
Christopher C. Marquardt
(pro hac vice)
ALSTON & BIRD LLP
1201 West Peachtree Street
Atlanta, GA 30309-3424
Phone: (404) 881-7000
john.stephenson@alston.com
chris.marquardt@alston.com

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 CERTIFICATE OF SERVICE

I certify that, on March 2, 2017, I electronically served this ANSWER AND

AFFIRMATIVE DEFENSES OF DEFENDANT NATIONAL ASSOCIATION FOR STOCK
CAR AUTO RACING, INC. via email and U.S. Mail on the following people:

Geraldine Sumter
N.C. Bar No. 11107
FERGUSON CHAMBERS & SUMTER, P.A.
309 East Morehead Street, Suite 110
Charlotte, North Carolina 28202
Telephone: (704) 375-8461
Facsimile: (980) 938-4867
Email: gsumter@fergusonsumter.com

Ronald I. Paltrowitz
LAW OFFICES OF RONALD I. PALTROWITZ
405 Lexington Avenue, 26th Floor
New York, NY 10174
Telephone: (917) 822-2881
Facsimile: (203) 730-2022
Email: rpal@paltrowitzlaw.com

Counsel for Plaintiffs

/s/ Brian D. Boone

Brian D. Boone
NC Bar No. 38910
ALSTON & BIRD LLP
101 South Tryon Street, Suite 4000
Charlotte, North Carolina 28280
Phone: 704.444.1000
brian.boone@alston.com

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