Free Motion in Limine - District Court of Arizona - Arizona

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FENNEMORE CRAIG, P.C. Ray K. Harris (No. 007408) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 Telephone: (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meadowlark Lemon, et al., Plaintiffs, v. Harlem Globetrotters International, Inc., et al. Defendants. Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC HARLEM GLOBETROTTERS INTERNATIONAL, INC.'S, MANNIE JACKSON'S and CATHERINE JACKSON'S IN LIMINE MOTION TO EXCLUDE PUNITIVE DAMAGES CLAIMS

Defendants Harlem Globetrotters International, Inc. ("HGI"), Mannie Jackson ("Mr. Jackson") and Catherine Jackson ("Ms. Jackson") (collectively the "HGI Defendants") submit this motion in limine pursuant to Fed. R. Civ. P. 37, Fed. R. Evid. 402, and the inherent powers of the Court, for an order excluding Plaintiffs from raising any claim for punitive damages to the jury.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.

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PHX/RHARRIS/1856599.1/43458.007

Case 2:04-cv-00299-DGC

Document 508

Filed 11/15/2006

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Specifically, Plaintiffs have not disclosed a single act by the HGI Defendants that would allow any reference to punitive damages. To be entitled to punitive damages, Plaintiffs have the burden of proving by clear and convincing evidence that the wrongdoer acted with an "evil mind." Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); see also Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D. Ariz. 09/13/2006). In determining whether the HGI

Defendants acted with the requisite evil mind, courts look at the nature of the conduct, including the reprehensibility of the conduct and the severity of the harm likely to result, the harm that has occurred, the duration of the misconduct, the degree of awareness of the harm or risk of harm, and any concealment of it. Id. Additionally, punitive damages are unavailable unless the alleged wrongdoer is consciously aware of the wrongfulness or harmfulness of his conduct and yet continues to act in the same manner in deliberate contravention to the rights of the victim. Thompson, 171 Ariz. at 556, 832 P.2d at 209; Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986). Thus, the evidence needed to support an award of punitive damages must reflect something more than reckless disregard. Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985). The wrongdoer must intend to injure the plaintiff or deliberately interfere with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. Rawlings, 151 Ariz. at 161, 726 P.2d at 577. While the necessary "evil mind" may be inferred, it is still this "evil mind", in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct, that is required for punitive damages. Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986). There has been no evidence in this case that the HGI Defendants acted with an "evil mind."2 The worst that can be said is that the HGI Defendants were wrong on some

There has been absolutely no evidence that Ms. Jackson had any involvement in any of the allegations set forth in the complaints. Plaintiffs have admittedly only named her because she is married to Mr. Jackson, the CEO of HGI,

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extremely close and complex arguments that, as set forth by the Plaintiffs, invoke bankruptcy, contract interpretation, and other issues. Order, 6/27/06, 13-16 (Doc. # 425). The HGI Defendants have stated throughout this litigation that they believed they owned the rights to use Plaintiffs' names and likenesses in perpetuity, based in part on Mr. Jackson's experience as a former player. (Doc. # 196 ¶¶ 3-4.) When HGI and Mr. Jackson purchased the Harlem Globetrotters from bankruptcy, they thought that all of the player agreements and other assets were being transferred, even representing to investors that "licensing revenues accrue to the company, not the individual players." (Doc. #267 ¶ 28.) At worst, neither HGI nor Mr. Jackson acted with an "evil mind"; rather they were merely mistaken as to these complex issues of law and fact. What is more, this Court has observed that Plaintiffs presented no evidence of highly offensive conduct in this case. See Order, dated June, 27, 2006, at pg. 25. As a result, there is no evidence that the HGI Defendants have committed any acts that would warrant punitive damages. Plaintiffs should not be allowed to offer any evidence relating to punitive damages or to make any statements to the jury requesting that they be awarded punitive damages from the HGI Defendants. PROPOSED LANGUAGE FOR ORDER Pursuant to ¶ 7 of the Pretrial Order, the HGI Defendants respectfully request that the Court enter an order stating that (1) Plaintiffs are precluded at trial from offering any evidence that punitive damages are warranted from the HGI Defendants; and (2) Plaintiffs are precluded from requesting that the jury award Plaintiffs punitive damages from the HGI Defendants. ... ... ...

because Arizona is a community property state. Thus, Plaintiffs should be precluded from seeking punitive damages from Ms. Jackson.

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RESPECTFULLY SUBMITTED this 15th day of November, 2006. FENNEMORE CRAIG, P.C. By: s/ Edward R, Garvey________________ Edward R. Garvey Christa Westerberg GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 (602) 916-5000 Ray K. Harris 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 (602) 916-5000 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Mannie L. & Catherine Jackson CERTIFICATE OF SERVICE 1. I hereby certify that on November 15, 2006, a true and correct copy of

Harlem Globetrotters International, Inc.'s, Mannie Jackson's and Catherine Jackson's In Limine Motion to Exclude Punitive Damages Claims 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];
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[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/Melody Tolliver

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