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 whether any of the HGI/FUBU apparel is so called "knock-offs." I. FACTS. Defendants have alluded to the fact that they will presenting testimony that certain items of HGI/FUBU apparel were not manufactured under the HGI/FUBU licensing agreement, and instead were "knock-offs" manufactured by some other company. However, Defendants have never disclosed any documentary evidence throughout this litigation to support such a position. Defendants have never pointed out to Plaintiffs which specific items of clothing they believe are
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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 WHETHER CERTAIN ITEMS OF HGI/FUBU APPAREL ARE `KNOCKOFFS'

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knock-offs, nor have they previously disclosed any expert witness that would be testifying to such evidence. Defendants have NEVER disclosed an expert witness during the course of this litigation that would have the specialized knowledge regarding design, fabric, and manufacturing information that such evidence would require. Furthermore, any `knock-offs' that may have been produced are the direct result of Defendants manufacturing of the HGI/FUBU apparel, for had Defendants not manufactured the clothing in the first place there would have been no opportunity or market for the sale of `knock-offs.' Such `knock-offs' are only a testament to the worldwide popularity of the apparel. II. LAW. Defendants have never produced one piece of evidence during discovery regarding the production or sale of `knock-off' apparel. If Defendants in fact have such evidence, it has never been disclosed to Plaintiffs and therefore would greatly prejudice Plaintiffs by its introduction at trial, and would be a blatant violation of Fed.R.Civ.P. 26. Also, any testimony regarding whether a certain piece of clothing is `authentic' or a `knock-off' would be expert testimony for which Defendants have never disclosed nor designated an expert. Expert testimony is required if the subject matter requires "scientific, technical, or other specialized knowledge." Fed.R.Evid. 702. Any knowledge regarding why consumers may have purchased the HGI/FUBU apparel would require technical and specialized knowledge in the area of design, fabrics, and manufacturing. As a result, if Defendants are intending on calling one of their listed lay witnesses as an expert witness that would be testifying to such, Defendants are also in violation of Fed.R.Civ.P. 26(a)(2) regarding disclosure
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of expert witnesses. As stated, Defendants have never disclosed an expert witness or expert report in this regard. Discovery is now closed, and Plaintiffs have never been given an

opportunity to question any witness regarding such evidence. Furthermore, any testimony regarding whether a certain item is `authentic' or a `knockoff' is certainly NOT opinion testimony by a lay witness. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are "rationally based on the perception of the witness, and helpful to the clear understanding of the witness' testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge." Fed.R.Evid. 701. Any

testimony by Defendants' witnesses regarding whether a certain item of clothing is `authentic' or a `knock-off' will not be based on the perception of that witness, but would instead be based on technical or other specialized knowledge. Additionally, Defendants' could not name one single manufacture of HGI/FUBU apparel in deposition and should not be permitted to now opine as to the potential for illicit manufacturing. III. PROPOSED LANGUAGE OF ORDER. Pursuant to ¶ 7 of the Pretrial Order, Plaintiffs respectfully request that the Court enter an order that Defendants are excluded from presenting any evidence or testimony regarding whether a certain item of HGI/FUBU apparel is `authentic' or a `knock-off'.

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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 WHETHER CERTAIN ITEMS OF HGI/FUBU APPAREL ARE KNOCK-OFFS was sent by postageprepaid 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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