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. Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE ANY OF DEFENDANT'S EVIDENCE OF WHY CONSUMERS MAY HAVE PURCHASED THE HGI/FUBU APPAREL

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 their theory that consumers purchased the HGI/FUBU apparel because it said `Harlem Globetrotters' or `FUBU' and not because it portrayed Plaintiffs names or likenesses. I. FACTS. Defendants have alluded to the fact that they will presenting testimony that consumers purchased the HGI/FUBU apparel because it said `Harlem Globetrotters' or `FUBU' and not because it portrayed Plaintiffs' names or likenesses, and have proposed jury instruction (Defendant's Section IV), and verdict forms reflecting such. However, Defendants have never disclosed any documentary evidence throughout this litigation to support such a position.
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Defendants have never produced consumer surveys or other similar evidence. Furthermore, Defendants have never disclosed an expert witness during the course of this litigation that would have the specialized knowledge on consumer purchasing that such evidence would require. Also, any such evidence is irrelevant to any of the elements in a right of publicity claim. II. LAW. In order to establish a claim for violation of the right of publicity, a person must establish (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury. Pooley v. Nat'l Hole-in-One Ass'n, 89 F.Supp. 2d 1108, 1111-12 (D.Ariz. 2000); Roth v. Naturally Vitamin Supplements, Inc., 2006 U.S. Dist. LEXIS 20221 (D. Ariz. 2006). No where in the elements of a right of publicity claim does it require Plaintiffs to prove that consumers bought the HGI/FUBU apparel only because it portrayed Plaintiffs' names or likenesses. Plaintiffs simply have to show that Defendants used Plaintiffs' names and likenesses and that use was to Defendants' advantage. Furthermore, Defendants have never produced even one piece of evidence during discovery, such as consumer surveys, consumer affidavits, etc., to support taking such a position at trial. In fact, Defendants testimony is that Plaintiffs' names were used on hang tags for marketing. Therefore, any testimony by any of Defendants' witnesses regarding such evidence would be hearsay and pure speculation. 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 why consumers purchased the HGI/FUBU apparel would be expert testimony for which Defendants have never disclosed nor designated an expert.

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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 consumer purchasing habits. 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 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 why consumers purchased the HGI/FUBU apparel 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 why consumer purchased the apparel in question will not be based on the perception of that witness, but would instead be based on technical or other specialized knowledge. 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 why consumers may have purchased the HGI/FUBU apparel.

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RESPECTFULLY SUBMITTED this 15 day of November 2006.

By:

/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/ 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 OF DEFENDANTS' EVIDENCE OF WHY CONSUMERS MAY HAVE PURCHASED THE HGI/FUBU APPAREL 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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