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' 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 Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC

Defendants GTFM, LLC ("GTFM"), Harlem Globetrotters International, Inc. ("HGI") and Mannie L. and Catherine Jackson submit this motion pursuant to Fed. R. Evid. 402 and 403, the Court's August 18, 2005, October 7, 2005 and June 2, 2006 Orders and the inherent powers of the Court, for an order precluding the Plaintiffs from offering at trial evidence relating to the Philippines, Thailand, FUBU The Collection, LLC ("FTC, LLC") and GTFM of Orlando, LLC d/b/a FUBU Company Store ("GTFM of Orlando").1

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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, including but not limited to GTFM's In Limine Motion to Exclude Any Allegations of Discovery Abuses by GTFM.

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Plaintiffs' exhibit list is fraught with irrelevant exhibits relating to alleged sales of FUBU/HGI Apparel in the Philippines and Thailand by entities other than Defendants, with no evidence that Defendants received any benefit as a result.2 Throughout this litigation, Plaintiffs have made much of their alleged finding at the close of discovery that FUBU/HGI Apparel was being sold in Manila, Philippines and Thailand. GTFM has explained numerous times that those sales were not disclosed because they were not made by GTFM (or FTC, LLC or GTFM of Orlando) and did not result in revenue to

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GTFM (or FTC, LLC or GTFM of Orlando). Indeed, GTFM did not even know of those sales until Plaintiffs disclosed them on or about September 19, 2005. GTFM did not receive any royalties or royalty reports as a result of such sales. See Blenden October 17, 2005 Decl. ¶¶ 3-4 (Dkt #177) ("Blenden Oct. Decl."), attached hereto as Exhibit B. Indeed, GTFM does not even know if those sales were legal. Moreover, this Court has repeatedly ruled that GTFM did not commit any discovery violations in connection with those sales, and had no discovery obligations therewith. For example, this Court ordered on October 7, 2005 that "[f]or the reasons set forth in the Court's Order dated August 18, 2005, no additional production of documents will be required by the FUBU Defendants related to foreign sales." See October 7, 2005 Order, ¶ 5 (Dkt #173); see also August 18, 2005 Order (Dkt #148). For all of those reasons, any evidence relating to alleged sales in the Philippines and Thailand is irrelevant and should be excluded.

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Attached hereto as Exhibit A is a list of Plaintiffs' exhibits that refer to irrelevant evidence relating to the Philippines, Thailand, FTC, LLC and/or GTFM of Orlando.

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Additionally, Plaintiffs' exhibit list is fraught with irrelevant exhibits relating to FTC, LLC and GTFM of Orlando,3 two parties that were dismissed from this action for lack of personal jurisdiction. See June 2, 2006 Order (Dkt #423). Plaintiffs mistakenly

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believe that because the name "FUBU The Collection" allegedly is used in the Philippines on stores, bags, receipts and signs, FTC, LLC must be involved. However, as GTFM has explained numerous times, FTC, LLC is not involved. FTC, LLC does not use "FUBU The Collection" as a tradename and products with such labels are marketed

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by GTFM (and its sublicensees), and not FTC, LLC. See Blenden September 21, 2005 Decl. ¶ 7, attached hereto as Exhibit C; Blenden Oct. Decl. ¶ 5. And, as explained above, GTFM did not disclose these sales because it did not receive any royalties or royalty reports as a result of such sales. This Court has already ordered that neither FTC, LLC nor GTFM of Orlando is subject to personal jurisdiction in Arizona and that GTFM did not commit any discovery violations in connection with foreign sales. Thus, information relating to FTC, LLC, GTFM of Orlando, the Philippines and Thailand (including information regarding any styles purchased and/or offered for sale in the Philippines and/or Thailand) is clearly irrelevant. Any such information would

mislead the jury and be unduly prejudicial to GTFM; thus it cannot be permitted into evidence.

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See Exhibit A attached hereto.

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PROPOSED LANGUAGE FOR ORDER Pursuant to ¶ 7 of the Pretrial Order, GTFM respectfully requests that the Court enter an order stating that Plaintiffs are precluded at trial from offering any evidence

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relating to FTC, LLC, GTFM of Orlando, and sales of FUBU/HGI Apparel in the Philippines and/or Thailand, including, but not limited to evidence relating to any styles that were purchased and/or offered for sale in those countries. 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

GTFM, LLC's 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] 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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