Free Motion in Limine - District Court of Arizona - Arizona

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Morgan & Morgan, P.A. 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Clay M. Townsend, Fl. #023414 Brandon S. Peters, Fl. #022641 Keith R. Mitnik, Fl. #436127 Attorneys for Neal Plaintiffs Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Motion in Limine to exclude Defendants' from introducing any evidence regarding what the costs or expenses were to manufacture the HGI/FUBU apparel. I. FACTS. Up to this point, Defendants have failed to produce any evidence regarding what their costs or expenses were to manufacture the HGI/FUBU apparel. It wasn't until the exhibit exchange with Defendants that Defendants, for the first time, produced Exhibit 1044, which is a thirteen (13) page chart entitled "Inventory: Cost Sheet". It is not Bates stamped and is obviously a business record which should have been included in Defendants' responses to
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Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE OF DEFENDANTS' COSTS OR EXPENSES

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Plaintiffs' very first request for production. This sheet breaks down, by style number, the cost and expenses required to manufacture each style. The ONLY bit of information that Plaintiffs were able to wrangle from Defendants regarding their costs and expenses was during Plaintiffs deposition of Bruce Weisfeld. Although Weisfeld was unable to testify to the exact cost and expense numbers regarding the manufacturing of the HGI/FUBU apparel, he was able to produce a sheet of paper, that he drew up that same morning, stating that costs and expenses are "generally" about fifty percent (50%) to manufacture a clothing line. However, that information given by Weisfeld was not supported by any evidence of costs or expenses specific to this litigation and was pure speculation. II. LAW. The Plaintiffs may recover the proportion of the Defendants' net profits that are attributable to the unauthorized use of Plaintiffs names and identities. Restatement (Third) of Unfair Competition §49. Plaintiffs bear the burden of establishing the Defendants' sales. Id. Once Plaintiffs establish the Defendants' sales, Defendants have the burden of establishing any portion of the sales that are attributable to factors other than the appropriation of the Plaintiffs' identities and any expenses properly deducted in determining net profits. Id. Therefore,

Defendants have had the burden, throughout this entire litigation, to produce evidence of their costs and expenses. However, Defendants completely failed to do so, opting instead to spring this information on Plaintiffs in an attempt to surprise Plaintiffs with new information on the eve of trial and deprive Plaintiffs of their opportunity to test the validity of the information or question any witnesses regarding this information.

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The Pretrial Order states that "[t]he Court will not allow the parties to offer any exhibit, witness, or other evidence that was not disclosed in accordance with the provisions of this Order and the Federal Rules of Civil Procedure...except to prevent manifest injustice." See Pretrial Order ¶4. Moreover, pursuant to Rule 37(c)(1) of the Federal Rules of Civil

Procedure, a party that fails to disclose information required by Rule 26 without substantial justification is not permitted to use that information as evidence at trial unless such failure to disclose is harmless. Fed.R.Civ.P.Rule 37(c)(1). Even if Defendants proposed, to use this improperly withheld document summary as under F.R.E. 1006. They have failed to establish any foundation and there are no underlying admitted or admissible documents submitted. Here, Defendants did not disclose any evidence regarding their costs and expenses, and especially did not do so in accordance with Federal Rules of Civil Procedure. Now Defendants belatedly seek to introduce evidence of costs and expenses through testimony at trial and Exhibit 1044 in order to reduce their profits that may be disgorged. Allowing this evidence to be offered at trial would work a manifest injustice against Plaintiffs. As a result, any such evidence should be precluded at trial. III. PROPOSED LANGUAGE OF ORDER. Pursuant to ¶ 7 of the Pretrial Order, Plaintiffs respectfully request that the Court enter an order that Defendants are: (i) excluded from having any witness testify regarding HGI or GTFM's costs and expenses in manufacturing the HGI/FUBU apparel; and (ii) excluding Exhibit 1044.

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RESPECTFULLY SUBMITTED this 15 day of November 2006.

By:

s/s Clay M. Townsend CLAY M. TOWNSEND, ESQUIRE KEITH MITNIK, ESQUIRE Morgan & Morgan, PA Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

By: s/s Anders Rosenquest, Jr. Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES Attorneys for Plaintiff Meadowlark Lemon

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on November 15, 2006, a true and correct copy of the foregoing PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE OF DEFENDANTS' COSTS OR EXPENSES was sent by postage-prepaid first-class mail, addressed to: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225
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Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 15 day of November 2006, at Phoenix, Arizona.

s/s Florence M. Bruemmer Florence M. Bruemmer

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