Free Motion in Limine - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 [email protected] (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 (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, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Defendants GTFM, LLC, 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 Plaintiffs from offering at trial evidence related to alleged unconscionability of their player contracts.1 Plaintiffs contended on summary judgment that contracts they entered into as Harlem Globetrotters players ("player contracts") are unconscionable. The Court denied Plaintiffs' motion on this issue because Plaintiffs "fail to cite any facts demonstrating either procedural or substantive unconscionability." SJ Order, 6/27/06, at 16 (Doc. #
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Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC DEFENDANTS IN LIMINE MOTION TO EXCLUDE EVIDENCE RELATED TO ALLEGED UNCONSCIONABILITY OF PLAINTIFFS' PLAYER CONTRACTS

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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/1856608.1/43458.007

Case 2:04-cv-00299-DGC

Document 503

Filed 11/15/2006

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425). Plaintiffs should be precluded from presenting such evidence at trial because it is irrelevant and prejudicial to Defendants. Unconscionability is typically a defense to specific performance of a contract. Restatement (2d) of Contracts § 208, cmt. G. Here, Defendants are not seeking specific performance of Plaintiffs' player contracts, but rather claim the contracts as a defense to Plaintiffs' remaining right of publicity claim. Plaintiffs attempt to claim

unconscionability as a defense to the contracts, rendering it so tangential an issue as to be irrelevant and a waste of time. The issue will also confuse the jury, which would have to wade through the law of four different states to determine whether the contracts were unconscionable. SJ Order at 15 n.9, 16 (Doc. # 425). Evidence concerning unconscionability is also unfairly prejudicial to Defendants. Plaintiffs signed the player contracts a minimum of fifteen years ago (Sanders) and as much as thirty-two years ago (Hall). HGI SOF ¶¶ 17, 22 (Doc. # 196). Plaintiffs have never at or since that time challenged their player contracts, and the publicity provisions in particular. Id. ¶¶ 56, 58. If the contracts were so unconscionable, Plaintiffs would have objected before now, decades after the contracts were signed. Plaintiffs' delay in filing suit is highly prejudicial to HGI because former Globetrotters managers are deceased or unavailable to testify regarding the setting, purpose, and effect of the contracts, and relevant documents have been lost. Id. ¶¶ 61-62. Plaintiffs should be precluded from presenting evidence concerning unconscionability at trial. Jarrow

Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir. 2002); State ex rel. Dept. of Health Services v. Cochise County, 166 Ariz. 75, 81, 800 P.2d 578, 584 (1990). Evidence concerning unconscionability is additionally prejudicial because Plaintiffs will attempt to introduce evidence that HGI' predecessors treated them poorly s or gave them no choice in signing the contracts. Jurors may unjustifiably attribute these actions to HGI as a successor-in-interest.

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PHX/RHARRIS/1856608.1/43458.007

Case 2:04-cv-00299-DGC

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Finally, Plaintiffs are highly unlikely to succeed on an unconscionability claim. As this Court noted, Plaintiffs failed to present one shred of evidence on summary judgment that their contracts were unconscionable under applicable law. SJ Order at 16 (Doc. # 425). It will be much the same at trial. Taking into account the fact that Plaintiffs signed the player contracts year after year, HGI SOF ¶¶ 15-22 (Doc. # 196), and were unionized, HGI SOF ¶ 5 (Doc. # 267), Plaintiffs can hardly show procedural and substantive unconscionability. As a result, evidence concerning alleged unconscionability of the player contracts is irrelevant, would mislead the jury, and would be 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 evidence related to alleged unconscionability of Plaintiffs' player contracts. 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
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PHX/RHARRIS/1856608.1/43458.007

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

Case 2:04-cv-00299-DGC

Document 503

Filed 11/15/2006

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Facsimile: 520-529-8077 [email protected] Attorneys for Defendant GTFM, LLC

[email protected] Attorneys for Defendants Harlem Globetrotters Int' Inc. and Mannie l, L. & Catherine Jackson

CERTIFICATE OF SERVICE 1. I hereby certify that on November 15, 2006, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the s CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A Anand [email protected] [email protected]\ [email protected]

Florence M Bruemmer Joel Louis Herz

Robert Williams Goldwater III

[email protected], [email protected]

Brandon Scott Peters [email protected], [email protected], [email protected] Anders V Rosenquist , Jr Ira S Sacks [email protected] [email protected]

Clay M Townsend [email protected], [email protected]; [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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PHX/RHARRIS/1856608.1/43458.007

Case 2:04-cv-00299-DGC

Document 503

Filed 11/15/2006

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