Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Morgan & Morgan, P.A. 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Clay M. Townsend, Fl. #023414 Brandon S. Peters, Fl. #022641 Keith R. Mitnik, Fl. #436127 Attorneys for Neal Plaintiffs Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 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 PLAINTIFFS' RESPONSE TO DEFENDANTS' IN LIMINE MOTION TO PRECLUDE PLAINTIFFS FROM CALLING SANDRA ABALOS AND NORMAN WEISFELD AS WITNESSES AT TRIAL

Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Response to Defendants In Limine Motion to preclude Plaintiffs from calling Sandra Abalos and Norman Weisfeld as witnesses at trial. Defendants argue for the exclusion of Sandra Abalos as a witness at trial because this Court precluded her as an expert witness in its summary judgment ruling. Defendants also argue for the exclusion of both Norman Weisfeld and Bruce Weisfeld as witnesses at trial because they are not party representatives and this Court lacks the power to require them to appear at trial under Fed.R.Civ.P. 45. First, this Court only excluded Abalos' testimony as an expert. Thus, she is no longer allowed to testify regarding her damages calculations or items contained in her expert report.
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However, this Court did not exclude Abalos from testifying to other relevant evidence as a fact witness. As Defendants correctly point out, Abalos has been identified by Plaintiffs as a fact witness to testify regarding a meeting held in New York, with which Ms. Abalos was involved, and in which GTFM specifically promised to produce further documents regarding sales of the HGI/FUBU apparel. Defendants have continually asserted that they did not commit any discovery violations, and have briefed their position regarding this issue in a separate Motion in Limine. As a result, Plaintiffs have also extensively briefed this Court regarding Defendants' discovery abuses in response to that Motion in Limine. Ultimately, this Court's prior ruling does not preclude Plaintiffs from calling Sandra Abalos as a lay fact witness, to testify to facts relevant to this litigation but completely unrelated to any damages calculation or her excluded expert report. Second, Norman Weisfeld may also be called by Plaintiffs as a witness in this litigation because his testimony will be highly relevant. Although Defendants argue that Norman

Weisfeld knows nothing about the facts and issues that are the subject of this litigation, evidence shows otherwise. At the deposition of Bruce Weisfeld he testified that Norman Weisfeld is a "principle" of GTFM, LLC and also testified that Norman Weisfeld directly participated in negotiating the HGI/FUBU licensing deal. (See Bruce Weisfeld's Depo at p. 63). As a result, Plaintiffs' may call Norman Weisfeld to testify at trial. It is important to point out that

Plaintiffs, in the Proposed Final Pretrial Order, have only stated that they may call Norman Weisfeld to testify. As a result, Defendants' Motion in Limine to preclude Plaintiffs from calling him is premature. At this point, Plaintiffs are not even sure they will need, or even want, to call Norman Weisfeld. Plaintiffs would request this Court defer its ruling regarding whether it is appropriate to call Norman Weisfeld as a witness for trial until Plaintiffs actually decide
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they need his testimony. Plaintiffs only had the duty to give notice to Defendants within the Proposed Final Pretrial Order that Plaintiffs may call Norman as a witness, and that is all Plaintiffs have done. However, it may not even become an issue. A decision regarding whether the Plaintiffs or the Court have the authority to order Norman Weisfeld to appear and testify at trial should only be made when it actually becomes an issue. Third, hidden away in a footnote referencing their argument as to why Norman Weisfeld cannot be compelled to appear and testify at trial, Defendants state, "the same is true for Bruce Weisfeld if GTFM decides not to call him as a trial witness." However, this argument is completely contrary to the Stipulation just recently entered into between Plaintiffs and Defendants on November 17, 2006. (Doc. #517). In response to Plaintiffs' Motion to Compel the attendance of Lawrence Blenden, Daymond Aurum, and Bruce Weisfeld (which was filed by Plaintiffs on 11/15/06) Defendants' counsel contacted Plaintiffs' counsel and requested that Plaintiffs withdraw their Motion to Compel in exchange for GTFM's agreement that they would produce Mr. Blenden, Mr. Aurum, and Mr. Bruce Weisfeld as witnesses at trial. Plaintiffs agreed to such a stipulation, and as a result, withdrew their Motion to Compel Attendance of Witnesses at Trial. Therefore, based upon Defendants' Stipulation, Defendants are now obligated to produce Bruce Weisfeld as a witness at trial. Wherefore, Plaintiffs' have a right to call Sandra Abalos as a fact witness at trial, and request the Court defer the decision regarding Norman Weisfeld being called as a witness until it actually becomes an issue.

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RESPECTFULLY SUBMITTED this 22nd By:

day of November 2006.

/s/ Clay M. Townsend CLAY M. TOWNSEND, ESQUIRE KEITH MITNIK, ESQUIRE Morgan & Morgan, PA Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

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. 2. I hereby certify that on November 22nd , 2006, a true and correct copy of the foregoing PLAINTIFFS' RESPONSE TO DEFENDANTS IN LIMINE MOTION TO PRECLUDE PLAINTIFFS FROM CALLING SANDRA ABALOS AND NORMAN WEISFELD AS WITNESSES AT TRIAL was sent by postage-prepaid first-class mail, addressed to: 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. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225
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Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders 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

by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 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 November 2006, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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