Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

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 Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC DEFENDANT GTFM, LLC'S IN LIMINE MOTION TO EXCLUDE PUNITIVE DAMAGES CLAIMS

9

Plaintiffs,
10

vs.
11 12 13 14 15 16 17 18 19

HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Defendant GTFM, LLC ("GTFM") submits 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 Specifically, Plaintiffs have not disclosed a single act by GTFM that would allow any reference to punitive damages. To be entitled to punitive damages, Plaintiffs have

20 21 22 23 24

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-PHXDGC (D.Ariz. 09/13/2006). In determining whether GTFM acted with the requisite evil

25 26
1

27 28

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.

1

Case 2:04-cv-00299-DGC

Document 505

Filed 11/15/2006

Page 1 of 5

1 2 3

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

4 5 6 7 8

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.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

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 GTFM acted with an "evil mind." On the contrary, GTFM's president, Bruce Weisfeld, has stated that GTFM did not enter into the License Agreement blindly. Indeed, GTFM was aware that HGI had been using and

25 26 27 28

licensing the rights to the names and likenesses of players and former players for decades and was not aware of any complaints regarding such uses. Furthermore, when deciding
2

Case 2:04-cv-00299-DGC

Document 505

Filed 11/15/2006

Page 2 of 5

1 2 3

whether to enter into the License Agreement, GTFM relied on the representations and indemnification provisions of the License Agreement, and the fact that no player had ever sued the Globetrotters for misuse of their names and/or likenesses. If GTFM had been

4 5 6 7 8

aware of any complaints by former players regarding HGI's use of their names and/or likenesses, GTFM would not have entered into the License Agreement or would have done an alternative line of clothing, which was free of infringement claims. See

Declaration of Bruce Weisfeld in Support of GTFM's Motion for Summary Judgment, at
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

¶¶ 8-10. Indeed, Plaintiffs have merely alleged that GTFM did not conduct proper due diligence of whether HGI had the rights it alleged; that is negligence, not reckless disregard or intentional misconduct. Thus, Plaintiffs asserted in their summary judgment papers that "when entering into the contract with HGI, GTFM did not [properly] do due diligence with regard to verifying whether HGI had the authority to license Plaintiff's name and likeness to GTFM". Lemon's Motion for Summary Judgment ("Lemon MSJ"), at pg. 8; see also SOF in support of Lemon MSJ ¶¶ 44-58; Neal Plaintiffs' Motion for Summary Judgment ("Neal Ps' MSJ"), at pg. 4; SOF in support of Neal Ps' MSJ ¶¶ 1119. 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 GTFM has committed any acts that would

25 26 27 28 3

warrant punitive damages. Plaintiffs should not be allowed to offer any evidence relating

Case 2:04-cv-00299-DGC

Document 505

Filed 11/15/2006

Page 3 of 5

1 2 3

to punitive damages or to make any statements to the jury requesting that they be awarded punitive damages from GTFM. PROPOSED LANGUAGE FOR ORDER

4 5 6 7 8

Pursuant to ¶ 7 of the Pretrial Order, GTFM respectfully requests that the Court enter an order stating that (1) Plaintiffs are precluded at trial from offering any evidence that punitive damages are warranted from GTFM; and (2) Plaintiffs are precluded from requesting that the jury award Plaintiffs punitive damages from GTFM.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

RESPECTFULLY SUBMITTED this 15th day of November, 2006.

By: s/ Joel L. Herz_____________________ Ira S. Sacks, admitted pro hac vice Safia A. Anand, admitted pro hac vice DREIER LLP 499 Park Avenue New York, New York 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 [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

Case 2:04-cv-00299-DGC

Document 505

Filed 11/15/2006

Page 4 of 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

CERTIFICATE OF SERVICE

1.

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

GTFM, LLC's Motion in Limine to Prelude Punitive Damages 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___________

5

Case 2:04-cv-00299-DGC

Document 505

Filed 11/15/2006

Page 5 of 5