Free Motion for Attorney Fees - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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

PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES

Plaintiff Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his Motion for Award of Attorney's Fees pursuant to Fed.R.Civ.P. 54(d)(2)(A) and Local Rule 54.2. Pursuant to this Court's Order, any request by Plaintiff for an award of attorney's fees is due to this Court on or before March 16, 2007. All supporting documentation required by Local Rule 54.2(d) and (e) ­ fee agreement, itemized statements of fees and expenses, affidavits of counsel ­ are attached to the Affidavit of Anders V. Rosenquist, which has been filed contemporaneously with this motion. Plaintiff's Motion for Award of Attorney's Fees is supported by the following Memorandum of Points and Authorities.

Case 2:04-cv-00299-DGC

-1Document 622

Filed 03/16/2007

Page 1 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AWARD OF ATTORNEY'S FEES I. ELEGIBILITY. On February 12, 2007, the clerk entered the Judgment in this case as follows: "IT IS ORDERED AND ADJUDGED that pursuant to the Jury Verdict of February 8, 2006, judgment is entered in favor of plaintiff Meadowlark Lemon against defendants Harlem Globetrotters International Inc and GTFM, LLC in the sum of $783,900.00 for violation of the right of publicity. Judgment also entered in favor of defendant Mannie Jackson against plaintiff on the claim for violation of the right of publicity." As a result of the judgment entered in this matter in favor of Plaintiff, Plaintiff is entitled to an award of attorney's fees pursuant to established case law in the jurisdiction of Arizona. Therefore, Plaintiff requests this Court enter judgment in his favor for attorney fees incurred from November 11, 2003 through present, in the amount of $313,535.04 ($25,860.00 for Jason Leonard as detailed in the Affidavit of Jason R. Leonard being filed contemporaneously herewith; and $30,995.04 for non-taxable costs and $256,680.00 as detailed in Exhibit "1" to the Affidavit of Anders V. Rosenquist, also being filed contemporaneously herewith). Plaintiff also requests interest pursuant to 28 U.S.C. § 1961 from the date of judgment until paid in full. Plaintiff is entitled to an attorney's fees award pursuant to A.R.S. § 12-341.01(A) because Plaintiff's cause of action is one "arising out of contract" and pursuant to similar attorney's fees awards in other jurisdictions. II. ENTITLEMENT. A. Plaintiff Is Entitled To An Award Of Attorney's Fees Under Arizona Law Because This Cause Of Action Is One "Arising Out Of Contract." Attorney's fees awards in federal cases are governed by Rule 54 of the Federal Rules of
-2Document 622

Case 2:04-cv-00299-DGC

Filed 03/16/2007

Page 2 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Civil Procedure, which states: "(A) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial. (B) Unless otherwise provided by statute or order of the court, the motion must be filed no later than 14 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought..." Fed.R.Civ.P. 54(d)(2)(A) & (B). Therefore, pursuant to the Federal Rules of Civil Procedure, an award for attorney's fees is allowed in federal cases so long as the award is authorized by "statute, rule, or other grounds entitling the moving party to the award." The Restatement 3rd of Unfair Competition §49(f) states, "Most states do not provide for the award of attorney's fees in actions at common law." However, as the Restatement goes on to point out, some do. Although Arizona does not have a statute (like that in California ­ Cal.Civ.Code § 3344(a)), which specifically authorizes an award for attorney's fees in an action for infringement of the right of publicity, established Arizona case law and statutes do specifically allow for an award for attorney's fees in this case. A.R.S. § 12-341.01(A) states that "In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees." (emphasis added). The Supreme Court of Arizona has construed the phrase "arising out of a contract" very liberally to include tort actions, and has specifically rejected the argument that the phrase applied only to actions in which a breach of contract was alleged. See Marcus v. Fox, 150 Ariz. 333 (1986). In the past, Arizona courts began to broadly interpret what types of transactions are included within the clause "arising out of contract." Id. at 334, citing Pinetop Lakes Assoc. v.

Case 2:04-cv-00299-DGC

-3Document 622

Filed 03/16/2007

Page 3 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Hatch, 135 Ariz. 196 (App. 1983)(action to enforce restrictive covenant arises out of contract within § 12-341.01); Shirley v. Hartford Acc. & Indem. Co., 125 Ariz. 70 (App. 1979)(§ 12-341.01 permits an award of attorney's fees where defendant can prove absence of contractual relationship); Nationwide Mutual Ins. Co. v. Granillo, 117 Ariz. 389 (App. 1977)(prevailing defendants in action filed by insurer for declaratory judgment that its policy did not provide coverage were entitled to attorney's fees under § 12-341.01). As the cases in this area evolved, the Arizona Courts found that in cases involving both contract and tort theories the plaintiff usually alleged a combination of tort and contract claims, or merely a tort claim which has as its basis the breach of a contract. Marcus, 150 Ariz. at 335. Regardless of the form of the pleadings, the courts would look to the nature of the action and the surrounding circumstances to determine whether the claim is one "arising out of contract." Id. Then, in the case of Sparks v. Republic National Life Insurance Co., 132 Ariz. 529 (1982), the Arizona Supreme Court stated that attorney's fees may be awarded upon facts which show a breach of contract, the breach of which may also constitute a tort. The fact that the two legal theories are intertwined does not preclude recovery of attorney's fees under § 12-341.01(A) "as long as the cause of action in tort could not exist but for the breach of the contract." Sparks, 131 Ariz. at 543 (emphasis added). Applying those principles, the Arizona Supreme Court found in Sparks that the tort of bad faith could not have been committed absent the existence of an insurance contract and a breach thereof, thus warranting attorney's fees under § 12-341.01. Id. at 544. Also, in the case of Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131 (1982), the Arizona Supreme Court stated, "In determining the nature of an action, a court is guided but not

Case 2:04-cv-00299-DGC

-4Document 622

Filed 03/16/2007

Page 4 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

bound by the form of the pleadings; the circumstances surrounding the case also may be considered." (emphasis added). More recently, in ASH v. Mesa Unified School Dist., 138 Ariz. 190 (App. 1983), the Arizona Court of Appeals concluded "as used in A.R.S. § 12-341.01, the words `arising out of a contract' describe an action in which a contract was a factor causing the dispute." (emphasis added). In ASH, the plaintiff filed suit to set aside a contract awarded by defendant Mesa Schools to defendant All American and to compel defendant Mesa Schools to award the contract to plaintiff. ASH, 138 Ariz. at 192. Although no contract existed between the plaintiff and defendant in that case, the Arizona Court of Appeals concluded, "Clearly, this suit was initiated because of a contract." Id. (emphasis added). As a result of that conclusion, the Arizona Court of Appeals found an award of attorney's fees pursuant to A.R.S. § 12-341.01 appropriate. Id. Finally, in the case of Marcus v. Fox, 150 Ariz. 333 (1986), the Arizona Supreme Court stated that although attorney's fees are not appropriate based on the mere existence of a contract somewhere in the transaction, attorney's fees were appropriate in that case because "it was that contract which prompted this suit and also served as the basis for his claim." Marcus, 150 Ariz. at 335-336. Following the reasoning of the Arizona Supreme Court in Sparks and the Arizona Court of Appeals in ASH, in the instant case the tort of infringement of the right of publicity could not have been committed absent the existence of the player contracts which delineated licensing rights, and a breach thereof. Clearly, Plaintiff Meadowlark Lemon's lawsuit against HGI and GTFM was initiated because of a contract, specifically his past player contracts. Plaintiff's past player contracts prompted this suit and also served as the basis for Plaintiff's claims against HGI and

Case 2:04-cv-00299-DGC

-5Document 622

Filed 03/16/2007

Page 5 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

GTFM. Even prior to the filing of the lawsuit, the evidence presented at trial shows that the focus of all parties involved was on the provisions of Plaintiff's player contracts and the terms thereof. Plaintiffs' original letter to Defendant Mannie Jackson prior to the filing of the Complaint, was a request for anything that gave him the authority to use Plaintiff's name and likeness on the FUBU clothing line. Defendants did not provide Plaintiff with a copy of Plaintiff's player contracts prior to the filing of the Complaint in this matter. However, in a response letter from Defendant HGI's attorney, he referenced a "standard player contract" that was signed by every player which gave HGI the right to use each player's name and likeness in perpetuity. Although that assertion was later found to be untrue after Defendant HGI disclosed Plaintiff's actual player contracts, it is clear that from the outset the focus in this case was on Plaintiff's player contracts and the interpretation of the provisions contained therein. Furthermore, in Plaintiff's Complaint he specifically referenced the absence of any contracts granting Defendants the authority to use Plaintiffs name and likeness. In paragraph 14 of the Second Amended Complaint, Plaintiff alleged: "Plaintiff has no agreements with Defendants, nor any other person, party or entity, allowing license or use of his identity, attributes of identity, name, images, likenesses on merchandise or goods or products of Fubu and/or GTFM. Furthermore, Plaintiff's player contract and terms contained therein were specifically cited by Defendant HGI as a basis for summary judgment. As this Court is well aware, Plaintiff's player contract has been the central issue regarding the element of `consent' in Plaintiff's right of publicity claim. In fact, the jury instructions given in this case specifically referred the jury to Plaintiff's various contracts in making their determination regarding whether Plaintiff consented to

Case 2:04-cv-00299-DGC

-6Document 622

Filed 03/16/2007

Page 6 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendant's use of his name and likeness. The interpretation of the licensing provisions in Plaintiff's player contracts were a central tenet in this case and the outcome of Plaintiff's claim hinged on the interpretation of those contracts. When looking at the nature of the action and the surrounding circumstances it is clear that this lawsuit was initiated because of a contract, a contract was a factor in causing this dispute, and Plaintiff's tort claim could not have existed but for the breach of that contract. Based upon the foregoing, Plaintiff's cause of action is one that `arises out of contract' as that term has been defined by the Arizona Courts. Since Plaintiff is the prevailing party in this lawsuit, he is entitled to an award of his attorney's fees pursuant to A.R.S. § 12-341.01(A) and Fed.R.Civ.P. 54(d)(2)(A). B. Furthermore, Since California Allows For An Award Of Attorney's Fees In Right Of Publicity Cases, Arizona May Also Allow An Attorney's Fee Award In Such Cases. As previously stated, California has specifically passed a statute allowing for an award of attorney's fees in actions for infringement of the right of publicity. Cal.Civ.Code § 3344(a) states: "Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent...shall be liable for any damages sustained by the person or persons injured as a result thereof...The prevailing party in any action under this section shall also be entitled to attorney's fees and costs." Absent Arizona law, Arizona courts will sometimes look to California cases or law for guidance. See, e.g. 333 West Thomas Medical Bldg. Enters. v. Soetantyo, 976 F. Supp. 1298, 1301 (D. Ariz. 1995) (Arizona court looked to California cases for guidance because Arizona adopted many of its redemption and mortgage statutes from California). Furthermore, in the case of Pooley v. National
-7Document 622

Case 2:04-cv-00299-DGC

Filed 03/16/2007

Page 7 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Hole-In-One Ass'n, 89 F.Supp.2d 1108 (D. Ariz. 2000), the Arizona District Court specifically looked to California case law for guidance regarding the elements required to state a claim for violation of the right of publicity. The Pooley Court stated, "The Court applies the elements set forth in Eastwood and finds that the Plaintiff adequately stated a claim against the Defendant for violation of his right of publicity" (referring to the case of Eastwood v. Superior Court, 149 Cal. App. 3d 409, 198 Cal. Rptr. 342, 346 (Cal. App. 1983). Therefore, the Arizona Courts have previously looked to California law for guidance in cases involving a claim for invasion of the right of publicity. Due to the Arizona Court's willingness to adopt the elements for a claim of right of publicity as set forth in California case law, Arizona Courts would also be likely to follow California's law regarding the prevailing party's ability to recover attorney's fees in those cases. Pursuant to California's statute regarding the right of publicity (Cal.Civ.Code § 3344(a) ­ entitled "Unauthorized commercial use of name, voice, signature, photograph or likeness") the "prevailing party in any action under this section shall also be entitled to attorney's fees..." Therefore, under California law, Plaintiff would have to show nothing more than the fact that he was the "prevailing party" on his claim for violation of the right of publicity. Since it is likely Arizona would again look to California law in this area, Arizona would most likely adopt the same standard of "prevailing party." Pursuant to the jury verdict and judgment entered in this case in favor of Plaintiff and against Defendants HGI and GTFM, Plaintiff is the prevailing party and he would be entitled to recover his attorney's fees under that standard. III. REASONABLENESS OF REQUESTED AWARD.

Case 2:04-cv-00299-DGC

-8Document 622

Filed 03/16/2007

Page 8 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

The various factors bearing on the reasonableness of Plaintiff's requested attorney's fee award for fees incurred from November 11, 2003 through present, in the amount of $300,186.33, are fully set forth in the Affidavits of Anders V. Rosenquist and Jason R. Leonard in Support of Request for Attorney's Fees and the billing statements attached thereto, which have been filed contemporaneously with this motion. The reasonableness of the amount of Plaintiff's requested attorney's fees is further supported by the fact that a couple hundred hours of work (at the rate of $200.00 per hour) performed by Anders Rosenquist were not billed and are not included in this request. Mr. Rosenquist did not record a great deal of his time spent working on this case, including time spent reviewing documents, meeting with Plaintiff, preparing for hearings, drafting letters and other documents, preparing for trial, etc., since other attorney were also recording time for similar transactions. Therefore, the total requested attorney's fee amount is greatly reduced. IV. STATEMENT OF CONSULTATION. Pursuant to the requirements of Local Rule of Civil Procedure 54.2(d)(1), undersigned counsel certifies that, after personal consultation through email between Florence M. Bruemmer, Anders Rosenquist, and all Defendant's counsel on March 2nd and 6th, 2007, and good faith efforts to do so, the parties have been unable to satisfactorily resolve all disputed issues relating to attorney's fees. V. CONCLUSION. For the reasons set forth above, Plaintiff is entitled to an award of attorney's fees in this matter. Plaintiff therefore requests this Court enter judgment in his favor for attorney's fees

Case 2:04-cv-00299-DGC

-9Document 622

Filed 03/16/2007

Page 9 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

incurred from November 11, 2003 through present, in the amount of $313,535.04. Plaintiff also requests interest pursuant to 28 U.S.C. § 1961 from the date of judgment until paid in full. Plaintiff's request is supported by the Affidavit of Anders V. Rosenquist in Support of Request for Attorney's Fees, which sets forth Plaintiff's attorney's fees in detail in Exhibit "1" attached thereto, and the Affidavit of Jason R. Leonard in Support of Request for Attorney's Fees, both of which have been filed contemporaneously herewith. RESPECTFULLY SUBMITTED this 16th day of March 2007.

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

Case 2:04-cv-00299-DGC

-10Document 622 Filed 03/16/2007

Page 10 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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 16th PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES was delivered via firstclass 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. 15333 North Pima Road, #225
-11Document 622 Filed 03/16/2007

Case 2:04-cv-00299-DGC

Page 11 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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 16th day of March 2007 at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

Case 2:04-cv-00299-DGC

-12Document 622 Filed 03/16/2007

Page 12 of 12