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

1 2 3 4 5 6 7 8 9 10

Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al. Plaintiffs, vs. PLAINTIFFS' JOINT RESPONSE TO DEFENDANTS' IN LIMINE MOTION TO TO EXCLUDE EVIDENCE RELATING TO THE PHILIPPINES, THAILAND, FUBU THE COLLECTION, LLC AND GTFM OF ORLANDO, LLC D/B/A FUBU COMPANY STORE Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 14 15 16 17 18 19 20 21 22 23 Defendants.

Plaintiffs, Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon (collectively referred to as "Plaintiffs"), hereby file this Response to Defendants' In Limine Motion to Exclude Evidence Relating to the Philippines, Thailand, FUBU the Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store ("Motion"), and state as follows: Defendants' Motion is calculated to exclude evidence related to 1) the Philippines sales, and 2) all evidence related to FUBU the Collection, LLC and GTFM of Orlando, d/b/a FUBU Company Store, but this evidence, whether sales were in the Philippines or Manhatten, is relevant to the Pooley' elements which Plaintiffs must prove (i.e. use and advantage), and b) credibility of FUBU witnesses. This Court specifically stated in the hearing of 9/30/05 "I think, Mr. Townsend, you've got the evidence with which to make your

24 25 26 credibility argument. You've got your investigator's discoveries...You are going to be able to use that to attack their credibility." (Ex. A, Pg. 39, Transcript 9/30/05).

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 1 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com Created by Neevia docuPrinter LT trial version

1 2 3 4 5 6

I.

THE PHILLIPINES SALES Plaintiffs admit that it has made much of the sale of the infringing garments in the Philippines for

several reasons. The first, FUBU's utter failure to disclose these sales given the numerous opportunities at deposition to disclose all foreign sales, is discovery abuse. Plaintiffs have cataloged the details of the deceptive representations made by FUBU from the inception of this litigation. The Plaintiffs were not dilatory in their discovery practices but rather relied upon the good faith representations of officers of this

7 8 9 10 11 12 13 14 15 16 17 The crux of Defendants' attack in their motion appears to be relevance. However, under F.R.E. 401 18 19 20 21 22 23 24 25 26 27 28
1 Defendants wishfully state "this Court has repeatedly ruled that GTFM did not commit any discovery violations" (Pg. 2 Motion) but the Court did not so rule, but only declined to extend the discovery deadline.

court that their FUBU clients were being forthright and that there were no sales other than a few in Japan.1 On the eve of the close of discovery, FUBU fessed up that there were sales in Europe. Plaintiffs had to find out on their own that these sales also were ongoing in the Philippines. The sales documented by Plaintiffs' investigators in the Philippines did not take place at flea markets or road side stands but at legitimate stores in malls entitled "FUBU The Collection." Additionally the garments were exactly of the type, style, and quality as those being sold in the United States. Plaintiffs diligently expended time and money to document this fact by dispatching its investigators not only to the Philippines but to Madison, Wisconsin to testify as to what was located. (¶22, Doc. #314, PSOF). The Defendants efforts to exclude this relevant evidence not only should be denied, the Motion itself is frivolous.

relevant evidence is evidence tending to make the existence of any fact that is of consequence to the determination of the action more probable or less probable. Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir. 1980). Plaintiffs' hard won Philippines evidence is relevant to several of the elements of Plaintiffs right of publicity claims. Plaintiffs must show that Defendants used their identities, and that Defendants derived some advantage, and that Plaintiffs were injured (i.e. that they were not compensated for the sale). Under F.R.E. 402.1 "all relevant evidence is admissible." Additionally, this evidence is relevant

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 2 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com

-2-

1 2 3 4 5 6

to the issue of the credibility of FUBU executives who consistently testified that there were no sales overseas except for those few in Japan. Defendants on Page 2 of their Motion state "this Court has repeatedly ruled that GTFM did not commit any discovery violations in connection with those sales." This Court made no such ruling but only ruled that Plaintiffs could not expand a requested discovery deadline to probe further into foreign sales. See October 7, 2005 order (Doc. #173). Whether or not there were any discovery violations, the garments

7 8 9 10 11 As to Plaintiffs' evidence related to GTFM of Orlando and FUBU The Collection, LLC, parties that 12 13 14 15 16 17 18 19 20 21 22 Orlando, LLC). Thus, this category of exhibits provides evidence that Defendant GTFM, LLC, utilizing 23 24 25 26 27 28 one of its agent's subsidiaries (GTFM of Orlando, LLC), to use Plaintiffs' identities and obtain a commercial advantage. Wherefore, Plaintiffs respectfully request the Court deny the Motion and permit all Plaintiffs' relevant evidence of Defendants' use and advantage. were dismissed from this action for lack of personal jurisdiction, Plaintiffs' exhibits related to these entities are relevant to the FUBU business enterprise that entered into the licensing agreement with HGI and exploited the Plaintiffs' identities. The fact that these two entities are no longer parties to the litigation is not a basis upon which to exclude Plaintiffs' evidence of these entities relationships to Defendant GTFM, LLC. For example, GTFM of Orlando, LLC is wholly owned by GTFM, LLC and their partner Samsung, and appears on FUBU business records for making sales of garments bearing Plaintiffs' identities. The issue is whether Defendants used Plaintiffs identities for their advantage. When FUBU business records reveal that GTFM of Orlando, LLC (again, wholly owned by GTFM, LLC) is actually a retailer making sales of infringing apparel, the relevance becomes strikingly clear (Ex. B, FUBU business record listing GTFM of purchased by Plaintiffs' investigator in the Philippines and documented further with photographs and deposition testimony are not only relevant but have an adequate foundation for admission into evidence. II. EVIDENCE RELATED TO FUBU THE COLLECTION, LLC AND GTFM OF ORLANDO, LLC D/B/A FUBU COMPANY STORE

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 3 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com

-3-

1 2 3 4 5 6 7 8 9 10 11

DATED this 22nd day of November, 2006. By: ____/S/ _______________________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders ROSENQUIST & ASSOCIATES

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC By: ____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced document have been served via first class mail on the following attorneys:

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 4 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com

-4-

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 27 28

Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on November 22, 2006, a true and correct copy of Plaintiffs' Response to Defendants' In Limine Motion to Exclude Evidence Relating to the Philippines, Thailand, FUBU the Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 5 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com

-5-

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 27 28

business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on November 22, 2006, a true and correct copy of Plaintiffs' Response to Defendants' In Limine Motion to Exclude Evidence Relating to the Philippines, Thailand, FUBU the Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 6 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com

-6-

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 27 28

3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: November 22, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

Created by Neevia docuPrinter LT trial version 11/22/2006 Page 7 of 7 Case 2:04-cv-00299-DGC Document 540 Filed http://www.neevia.com

-7-