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 of criminal acts committed by Plaintiffs or any acts of domestic violence that may have occurred involving Plaintiffs. Such items are completely irrelevant to this litigation and the issue of whether Defendants' violated Plaintiffs' right of publicity. I. FACTS. At several of Plaintiffs' depositions, Defendants questioned each Plaintiff about a minor criminal violation or domestic violence incident in which that specific Plaintiff or may have been involved. During the depositions, Plaintiffs objected to this line of questioning as Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE ANY EVIDENCE OF CRIMINAL ACTS OR ACTS OF DOMESTIC VIOLENCE

completely irrelevant. Not one Plaintiff has ever been convicted of a felony, and any minor
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convictions occurred several years ago. Furthermore, these incidents would not be probative of Plaintiffs' credibility should Plaintiffs testify at trial. II. LAW. "Relevant Evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. It is clear that bringing up misdemeanor convictions or alleged domestic violence incidents that happened decades ago will not have any tendency to make the fact that Defendants' improperly used Plaintiffs' names to their advantage any more or less probable. Even if Defendants were to argue that such evidence is relevant, such evidence would clearly be excluded under Fed.R.Evid. 403 as prejudicial, confusing the issues, and misleading the jury. Under Rule 403, although relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury..." It is clear that Defendants would only ask such irrelevant questions in an effort to tarnish the image and character of Plaintiffs in the eyes of the jury. Such questioning is not even relevant for impeachment purposes, as the incidents happened long ago and are not felonies. Such incidents in no way bear on the credibility of Plaintiffs, nor their character for truthfulness. Questions regarding misdemeanor convictions or alleged domestic violence incidents would only serve the purpose of drawing the jury's attention away from the real issues in the case, and would mislead the jury regarding the issues in this case. The unfair prejudice that would result from Defendants attempting to inquire into such incidents would substantially outweigh any possible probative value that such questions may illicit. Furthermore, for the purpose of attacking the credibility of a witness, evidence of a conviction for a crime is only admissible if the crime was punishable by death or imprisonment
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in excess of one year. Fed.R.Evid. 609. None of the Plaintiffs in this litigation fall into that category, as none have been convicted of a felony. Although Rule 609 states "evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment," again, none of the alleged minor infractions involved "dishonesty" or "false statement." Also, it cannot even be argued that an alleged incident of domestic violence, in which a Plaintiff was the victim, could be considered relevant, probative of credibility, or probative of honesty and truthfulness. As a result, Plaintiffs request that Defendants be excluded from inquiring of any Plaintiff, or introducing any evidence, regarding criminal acts or acts of domestic violence. III. PROPOSED LANGUAGE OF ORDER. Pursuant to ¶ 7 of the Pretrial Order, Plaintiffs respectfully request that the Court enter an order that Defendants are excluding from (i) asking any questions of any Plaintiff regarding criminal convictions or alleged domestic violence; and (ii) introduce any evidence regarding Plaintiffs' criminal convictions or alleged domestic violence incidents.

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

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By: s/s Anders Rosenquist, 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 CRIMINAL ACTS OR DOMESTIC VIOLENCE 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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