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, this Court's June 27, 2006 Order (the "June 27 Order"), Fed. R. Civ. P. 45 and the inherent powers of the Court, for an order precluding Plaintiffs from calling Sandra Abalos and Norman Weisfeld as witnesses at trial.1 In its June 27 Order, this Court found that the Abalos report and the testimony of Ms. Abalos is irrelevant and may not be presented at trial. See June 27 Order, at pg. 23. Nonetheless, despite this clear order, Plaintiffs have listed Sandra Abalos as an alleged DEFENDANTS' IN LIMINE MOTION TO PRECLUDE PLAINTIFFS FROM CALLING SANDRA ABALOS AND NORMAN WEISFELD AS WITNESSES AT TRIAL 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, including but not limited to GTFM's In Limine Motion to Exclude Any Allegations of Discovery Abuses by GTFM.

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fact witness in their initial draft pre-trial order, explaining that Ms. Abalos "is a CPA and will testify to promise of production by GTFM. She may be called at trial. She is a fact witness." Proposed Final Pre-trial Order ("PFPO") ¶ E. Once again Plaintiffs are

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attempting to circumvent this Court's prior rulings and call Ms. Abalos as a fact witness in an effort to discredit GTFM in the eyes of the jury by using her to substantiate alleged discovery abuses. GTFM has always complied with its discovery obligations under the Federal Rules

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and has not committed any discovery abuses or violations. See Sacks October 17, 2006 Decl. (Dkt # 465-466) ¶¶ 3-15. Throughout this action, Plaintiffs have alleged various discovery abuses and violations by GTFM, all of which supposedly thwarted their expert in preparation of a damages report and frustrated Plaintiffs' ability to completely calculate all of the "infringing sales" at issue and individual Plaintiffs' damages. All of those allegations are untrue and have never been adjudicated by this Court. These alleged discovery abuses or misconduct are not relevant to any remaining issue or claim in the case. Thus, Ms. Abalos' testimony on such matters should be precluded. Fed. R. Evid. 401-403.2 Second, Plaintiffs list Norman Weisfeld as a witness because he is allegedly a party representative. According to Plaintiffs: "Mr. Weisfeld is a fact witness and a party representative. He will be called at trial. He shall testify to all aspects of this, including information provided in his deposition and information regarding the marketing,

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On October 17, 2006, GTFM filed an in limine motion regarding GTFM's alleged discovery abuses (Dkt # 464-466), to which Plaintiffs have not yet responded.

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promotion and advertising of the Harlem Globetrotter apparel line." See PFPO ¶ E. Norman Weisfeld never was deposed in this action; his brother, Bruce Weisfeld, was. Both are executives at GTFM. Both are listed as trial witnesses by Plaintiffs. Norman

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Weisfeld is not the GTFM party representative for trial; Larry Blenden is. GTFM will have at least two executives who will testify at trial: Daymond Aurum and Larry Blenden. Bruce Weisfeld also may testify at trial; Norman Weisfeld will not. Plaintiffs have the depositions of Messrs. Aurum, Blenden and Bruce Weisfeld; they

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never took the deposition of Norman Weisfeld, because there was no apparent need to do so. This Court lacks the power to require Norman Weisfeld to appear at trial under Fed. R. Civ. P. 45. He lives and works far beyond the subpoena power of the Court because he lives and works in New York State, outside of the 100-mile bulge subpoena power of federal courts. Jamsport Entertainment, LLC v. Paradama Productions, Inc.,
2005 WL 14917, at *1-2 (N.D. Ill. Jan. 3, 2005); Johnson v. Land O' Lakes, Inc., 181 F.R.D.

388, 397 (N.D. Iowa 1998). As the Court explained in Jamsport, a subpoena may only "be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the ... trial ... or at any place within the state where a state statute or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place of the ... trial ...." (citing Rule 45(b)(2)). That limitation is not changed by Rule 45(c)(3)(A). Rather, as the court

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explained, "[n]othing in the history of the adoption of Rule 45(c)(3)(A) suggests that it was intended to alter the longstanding geographic limitations on the reach of a district
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court's subpoena power. ... Rule 45(c)(3)(A) does not confer authority for service of a subpoena; it confers authority to quash or modify a subpoena. It provides an exception to Rule 45(b)(2), not an addition to that Rule." Jamsport, 2005 WL 14917, at *1. Norman

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Weisfeld cannot be forced to fly 2,460 miles to Phoenix for a trial that he knows nothing about, and for which he has not been deposed.3 In sum, the testimony of Ms. Abalos would mislead the jury and be unduly prejudicial to Defendants. Forcing Mr. Weisfeld to fly to Arizona to testify in this case

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would be unduly burdensome to Mr. Weisfeld. Moreover, the testimony of both Ms. Abalos and Mr. Weisfeld would be a waste of this Court's time.4 Plaintiffs should be precluded from calling Ms. Abalos and Mr. Weisfeld as witnesses at trial. 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 from calling Sandra Abalos and Norman Weisfeld as witnesses at trial, and that Plaintiffs are precluded from issuing trial subpoenas for service beyond the State of Arizona or 100 miles from the courthouse in Phoenix, whichever is farther. 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 &

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The same is true for Bruce Weisfeld if GTFM decides not to call him as a trial witness.

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Plaintiffs anticipate that it will take them 60 hours to put on their case and that they will need 4 hours for rebuttal. Precluding Plaintiffs from calling Norman Weisfeld and Sandra Abalos, both unnecessary witnesses, will shorten the time they need to try their case.

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499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected]

McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Telephone: 608-256-1003 Facsimile: 608-256-0933 [email protected] 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

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

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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 Preclude Plaintiffs From Calling Sandra Abalos and Norman Weisfeld As Witnesses At Trial 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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