Free Response to Motion - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Tel. 480-488-0102 Fax 480-488-2075 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants.

Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

RESPONSE TO DEFENDANTS' MOTION TO STRIKE PLAINTIFF LEMON'S UNTIMELY BILL OF COSTS

Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby files his Response to Defendants' Motion to Strike his Bill of Costs. Plaintiff requests that Defendants' Motion to Strike be denied, and that Plaintiff be awarded his costs as set forth in his Bill of Costs, for the following reasons. Defendants' only reason for requesting that Plaintiff's Bill of Costs be stricken is their argument that the Bill of Costs was "untimely " pursuant to Local Rule of Civil Procedure 54.1(a). However, Plaintiff's Bill of Costs was not untimely because it was filed before March 16, 2007, which was the deadline set by this Court. Although Defendants state "Local Rule of Civil Procedure 54.1(a) requires a party to file its

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bill of costs `within ten (10) days after the entry of final judgment,'" Defendants quote affirmatively misrepresents the deadline set forth by Local Rule 54.1(a) to file a bill of costs. The correct deadline, as set forth in Local Rule 54.1(a) is as follows: "A party entitled to costs shall, within ten (10) days after the entry of final judgment, unless time is extended under Rule 6(b), Federal Rules of Civil Procedure, file with the Clerk of Court and serve upon all parties, a bill of costs..." (emphasis added). Furthermore, Fed.R.Civ.P. 6(b) states "When by these rules...an act is required or allowed to be done at or within a specified period of time, the court... may at any time in its discretion (1) ...order the period enlarged ...as extended by a previous order,..." Therefore, the Court is fully vested with the discretion to extend any deadline for filing set forth in the Rules, including the tenday deadline for filing a bill of costs. As Defendants are well aware, this Court ordered on February 8, 2007 that counsel are to file any post trial motions "not later than March 16, 2007." (See Minute Entry of 2/8/07, attached as Exhibit "A"). Plaintiff's Bill of Costs was filed and served on March 14, 2007, two days prior to the Court's deadline. Merely because Plaintiff's Bill of Costs is not entitled "motion" does not preclude it from the Court's extended deadline of March 16, 2007. A bill of costs is nothing more than a motion to the Clerk requesting that a party's costs be taxed against an opposing party. Any other conclusion would be extremely confusing and would render this Court's order ambiguous. Defendants' attempt to strictly interpret this Court's Order would leave counsel guessing as to which post-trial requests for relief are considered "motions" and which are not. Based upon the foregoing, Plaintiff's Bill of Costs was timely since it was filed on March 14, 2007, two days prior to the Court's deadline of March 16, 2007. As a result, Defendants'
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Motion to Strike should be denied, and the amounts as set forth in Plaintiff's Bill of Costs should be taxed against all Defendants. RESPECTFULLY SUBMITTED this 22nd day of March 2007.

ROSENQUIST & ASSOCIATES By: /s/ Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES Attorneys for Plaintiff Meadowlark Lemon

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. , 2007, a true and correct copy of the foregoing 2. I hereby certify that on March 22nd PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO STRIKE PLAINTIFF LEMON'S UNTIMELY BILL OF COSTS was delivered via first-class mail to the following parties: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. Jason Leonard The Goldwater Law Firm, P.C.
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15333 North Pima Road, #225 Scottsdale, Arizona 85260 Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Karl M. Tilleman P. Bruce Converse Jason Sanders Steptoe & Johnson LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 22nd day of March 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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