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 IN LIMINE MOTION TO EXCLUDE EVIDENCE RELATING TO WHETHER PLAINTIFFS'PLAYER CONTRACTS ARE ASSETS OF HARLEM GLOBETROTTERS INTERNATIONAL, INC. Nos. CV-04-0299 PHX DGC and CV-041023 PHX DGC

Defendants GTFM, LLC, Harlem Globetrotters International, Inc. ("HGI") 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 the Plaintiffs from offering at trial evidence relating to whether their player contracts were purchased by HGI.1 One element of Plaintiffs' remaining right of publicity claim is whether Defendants lacked Plaintiffs' consent to use their names on the FUBU/HGI Apparel. SJ

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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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Order, 6/27/06, at 13 (Doc. # 425). Defendants contend Plaintiffs consented through contracts they signed as Harlem Globetrotters players; Plaintiffs contend HGI never purchased the contracts from HGI' predecessors. (Id. at 14-15.) This Court determined s that the relevant portions of the asset purchase agreement by which HGI purchased the Harlem Globetrotters team and associated assets were ambiguous, and cited Hudson-Port Ewen Assocs. v. Kuo, 165 A.D.2d 301, 303 (N.Y. App. Div. 1991) for the proposition that summary judgment is inappropriate where a contract is ambiguous and the intent of the parties depends on the credibility of or inferences to be drawn from extrinsic evidence. (Id. at 13.) Evidence relating to whether the contracts were purchased should be precluded from trial for two reasons. First, the only available extrinsic evidence unequivocally shows HGI purchased Plaintiffs' contracts, rendering the entire issue irrelevant. Plaintiffs deposed two agents of the selling corporation-- Ted Nikolis and Paul Horton-- who both testified it was their intent to transfer all of the Globetrotters assets to HGI. HGI SOF ¶¶ 11, 13, 17, 21-22 (Doc. # 267, citing Nikolis and Horton depositions). Their rationale for selling all of the assets was to maximize the purchase price and protect their employer from liability associated with retaining any assets. (Id. ¶ 15.) Similarly, purchaser Mannie Jackson testified it was his intent to buy all of the team' assets, s including the player contracts. (Id. ¶ 28 (citing Jackson affidavit).) There is absolutely no extrinsic evidence from any source-- whether from seller or buyer-- that the player contracts were not conveyed to HGI. In other words, no conflicting extrinsic evidence exists that would require a jury to determine credibility or draw inferences about whether the contracts were purchased, because all of the extrinsic evidence shows that HGI did in fact purchase Plaintiffs' contracts. Plaintiffs should be precluded from offering evidence at trial relating to HGI' purchase of the team and its assets on relevance grounds. s Second, to the extent Plaintiffs believe that HGI does not own the player contracts because HGI' predecessor did not purchase them out of bankruptcy in the early 1990s, s
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res judicata bars Plaintiffs from presenting evidence or argument on this issue at trial. Plaintiffs should have challenged this purchase through the bankruptcy proceedings or a motion under Fed. R. Civ. P. 60. FDIC v. Shearson-Am. Express, Inc., 996 F.2d 493, 498 (1st Cir. 1993) ("Orders, judgments and decrees of the bankruptcy court from which an appeal is not timely taken are final, even if erroneous."); Futuresource, LLC v. Reuters, Ltd., 312 F.3d 281, 286 (7th Cir. 2002). Plaintiffs did not do so. HGI SOF ¶ 18 (Doc. # 267.) The Order approving the Plan of Reorganization is therefore res judicata on the issue of whether all intangible assets of the Globetrotters passed to HGI' predecessor, s which sold them to HGI. Katchen v. Landy, 382 U.S. 323, 334 (1996) ("The normal rules of res judicata and collateral estoppel apply to the decisions of bankruptcy courts."); In re Clinton Street Food Corp., 254 B.R. 523, 530-31 (S.D.N.Y. 2000) ("a bankruptcy order approving a sale of assets is a final order for res judicata purposes" and "promotes the important public policy favoring the finality of orders transferring ownership of bankruptcy estate assets"). As a result, evidence concerning the purchase of the contracts is irrelevant and would mislead the jury and 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 any evidence relating to whether HGI purchased Plaintiffs' player contracts or whether its predecessors purchased the contracts out of bankruptcy. 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
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Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected]

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' Inc. and Mannie l, 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

CERTIFICATE OF SERVICE 1. I hereby certify that on November 15, 2006, a true and correct copy of Defendants' In Limine Motion to Exclude Evidence of Whether Plaintiffs' Contracts are Assets of Harlem Globetrotters International, Inc. was electronically transmitted to the Clerk' Office using the CM/ECF System for filing and transmittal of a Notice of s Electronic Filing to the following CM/ECF registrants: Safia A Anand [email protected] Florence M Bruemmer [email protected]\ Robert Williams Goldwater III [email protected] Joel Louis Herz [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] 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
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PHX/RHARRIS/1856589.1/43458.007

s/Melody Tolliver

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