Free Motion in Limine - District Court of Arizona - Arizona

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Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiffs, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Defendants GTFM, LLC ("GTFM"), Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson submit this joint motion pursuant to Fed. R. Evid. 402 and 403, and the inherent powers of the Court, for an order precluding the Plaintiffs from offering at trial evidence relating to shoes.1 Plaintiffs' exhibit list contains irrelevant evidence relating to the sale of shoes under the FUBU/HGI License Agreement. The shoes that were manufactured and sold under the FUBU/HGI License Agreement did not contain any of the player's names, DEFENDANTS' IN LIMINE MOTION TO EXCLUDE EVIDENCE RELATING TO SHOES Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC

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This motion is made without prejudice to Defendants' other in limine motions, Trial Brief, Motion to Strike or Opposition to Plaintiffs' Motion for Pre-Admission.

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likenesses or numbers. Indeed, both Bruce Weisfeld and Larry Blenden testified to this during their depositions. See Blenden Transcript, pgs. 87-88 and 168, attached hereto as Exhibit A; Weisfeld Transcript, pgs. 44-45, attached hereto as Exhibit B. Moreover, Mr.

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Weisfeld testified that hangtags are typically not attached to shoes and that he did not believe that they were in the case of the shoes sold under the FUBU/HGI License Agreement. See Weisfeld Tr., pg. 45. Nonetheless, Plaintiffs have included evidence relating to shoes. Indeed, Plaintiffs

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have even included in their exhibits a pair of FUBU shoes, which do not contain any Harlem Globetrotters indicia. Additionally, in the revised Merchandise schedule

prepared by Plaintiffs' investigator, Oliver Phipps, he includes these FUBU shoes as one of the infringing items. See e.g., Plaintiffs' Exhibit Nos. 171-172, 200, 325. This cannot be allowed. Despite its irrelevance, Plaintiffs have also listed the sublicense agreement between GTFM its shoe licensee, Anthony L., LLC, as well as the amendment thereto. See Plaintiffs' Exhibit Nos. 396-397, 523-524. Plaintiffs have also included evidence relating to GTFM's sales of shoes under the FUBU/HGI License Agreement in some of their exhibits. See e.g., Plaintiffs' Exhibit Nos. 186, 363 and 545. This evidence is clearly irrelevant to this case because there is absolutely no evidence that any of the shoes contained Plaintiffs' names, numbers and/or likenesses. Indeed, the evidence is to the contrary. Moreover, Mr. Phipps has not even included sales of shoes in his various

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damage analyses, the most recent of which Defendants received on October 31, 2006 and

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November 1, 2006. Thus, the introduction of evidence relating to shoes is patently irrelevant. As a result, evidence concerning shoes is irrelevant, would mislead the jury and be

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unduly prejudicial to Defendants and cannot be permitted into evidence. PROPOSED LANGUAGE FOR ORDER Pursuant to ¶ 7 of the Pretrial Order, Defendants respectfully request that the Court enter an order stating that Plaintiffs are precluded at trial from offering any evidence

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relating to shoes. RESPECTFULLY SUBMITTED this 15th day of November, 2006. By: s/ Ira S. Sacks_________________ By: s/ Edward R. Garvey____________ Ira S. Sacks, admitted pro hac vice Edward R. Garvey, admitted pro hac vice Safia A. Anand, admitted pro hac vice Christa Westerberg, admitted pro hac vice DREIER LLP GARVEY McNEIL & 499 Park Avenue McGILLIVRAY, S.C. New York, NY 10022 634 W. Main St. #101 Telephone: 212-328-6100 Madison, WI 53703 Facsimile: 212-328-6101 Telephone: 608-256-1003 [email protected] Facsimile: 608-256-0933 [email protected] Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 [email protected] Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Mannie L. & Catherine Jackson

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CERTIFICATE OF SERVICE

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I hereby certify that on November 15, 2006, a true and correct copy of

Defendants' In Limine Motion to Exclude Evidence Relating to Shoes 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] Edward R Garvey [email protected], [email protected], [email protected] Robert Williams Goldwater III [email protected] Ray Kendall Harris [email protected], [email protected] Joel Louis Herz [email protected], [email protected] Alec R Hillbo [email protected], [email protected] Brandon Scott Peters [email protected], [email protected], [email protected] Anders V Rosenquist , Jr [email protected] Ira S Sacks [email protected] Clay M Townsend [email protected], [email protected]; [email protected] Christa O Westerberg [email protected] 2. I hereby certify that on November 15, 2006, a true and correct copy of the attached

document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan & Morgan PA 20 N. Orange Ave. Suite 1600 Orlando, FL 32802 s/ Leslie Grant___________

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