Free Reply - District Court of Arizona - Arizona

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Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Neal Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff, vs. Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC

HARLEM GLOBETROTTERS 11 INTERNATIONAL, INC., et al.; 12 13 Defendants. FRED "CURLY" NEAL, et al. Plaintiffs,

14 vs.

15 HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; 16 Defendants. HARLEM GLOBETROTTERS 18 INTERNATIONAL, INC., an Arizona corporation, 17 19 20 21 22 23 24 25 COMES NOW THE PLAINTIFFS, Meadowlark Lemon, Fred "Curly" Neal, Larry "Gator" Rivers, 26 Dallas "Big D" Thornton, Robert "Showboat" Hall, Marques Haynes, and James "Twiggy" Sanders vs. MEADOWLARK LEMON, a married man, Counter-defendant. PLAINTIFFS' REPLY TO DEFENDANT GTFM, LLC'S RESPONSE TO PLAINTIFFS' JOINT MOTION TO ENFORCE SETTLEMENT CONFERENCE ORDER BY REQUIRING DEFENDANT GTFM'S INSURER TO APPEAR AT THE SETTLEMENT CONFERENCE Counter-claimant,

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(collectively referred to as "Plaintiffs"), through the undersigned counsel, and submit the following Reply to Defendant GTFM, LLC's (hereinafter "GTFM" or "FUBU Defendants") Response to Plaintiffs' Joint Motion to Enforce Settlement Conference Order by Requiring Defendant GTFM's Insurer to Appear at the Settlement Conference ("Response")(Doc. #442), and would state as follows: 1. GTFM's Third Amended Initial Disclosures (Doc. #432, hereinafter "Third Amended

6 Disclosures") gave Plaintiffs NO explanation whatsoever as to why, after a lengthy period of litigation, 7 8 9 10 11 12 13 14 15 16 3. 17 of the Settlement Conference. Plaintiffs should not be attacked by GTFM for making reasonable efforts for 18 19 20 21 22 23 24 25 26 27 28
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GTFM suddenly no longer had insurance. GTFM's counsel has now filed a Declaration (Doc. #442, hereinafter the "Sack's Declaration" or "Response") that for the first time has offered an inadequate explanation--they released their insurer who had apparently accepted Plaintiffs' claim and defended GTFM by paying the fees and costs of attorney Sacks, et al. 2. GTFM concedes in the Sacks Declaration that their insurer is released "except in the event

of a default by HGI." (Response ¶ 3). This alone makes it clear that GTFM should have to comply with the Order Setting Settlement Conference as their insurer is still involved in this case, notwithstanding the purported release. GTFM should bear any brunt of its failure to disclose the release of its insurer until the eve

this information. 4. Plaintiffs ask the Court to note that it is this Court's Order, not Plaintiffs' whim that requires

Defendants' insurance representatives to be present. Plaintiffs will not presume to interpret the Order except to assert that it appeared fairly clear that insurers of record are required to appear. If this is not the Court's meaning, then Plaintiffs concede the point and will proceed to the Settlement Conference without delay if Judge Anderson is satisfied that the proper representatives are present to achieve the purpose of the conference.

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5.

Plaintiffs believed the Court's Order as far as the presence of the insurer was clear and

supported by case law involving non-party insurers at settlement conferences: "Because these nonparty insurers have a real stake in the litigation, however, the district courts may rely on their power to order named parties to produce individuals with full settlement authority at pretrial conferences, see supra p. 1407, to coerce cooperation from nonparty insurers." and "For example, a district court could coerce the assistance of a nonparty insurer in charge of the litigation by ordering its insured, a named party, to produce an individual at the pretrial conference fully authorized to discuss settlement and informing this party, in advance, that the court will strike his pleadings as a sanction for noncompliance with its order." In re Novak, 832 F.2d 1397, 1408 (11th Cir. 1991). 6. Plaintiffs' Motion (Doc. #447) was filed in good faith. GTFM's insurer should not be

relieved from the requirement to appear at the Settlement Conference (as Plaintiffs understand the Order) for the sole reason that GTFM voluntarily released them, especially considering that the insurer is still GTFM's indemnitor if HGI defaults. 7. GTFM complains that Plaintiffs' Motion and request for discovery "on the eve of the

Settlement Conference" was a tactic to delay this case. (Response ¶ 3). GTFM's Response at ¶ 7 reveals, 17 however, that "since February 8, 2006, GTFM has been uninsured in connection with this action," yet 18 19 20 21 22 23 24 25 26 an HGI attorney and due to the Settlement Conference. 27 28
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GTFM did not make this known until over five months later when they filed their Notice of Service of Third Amended Disclosures dated July 13, 2006. GTFM's complaints as to timeliness are ironic and should be dismissed given GTFM's concealing this important change months after they knew about it, and the fact that GTFM had settled its lawsuit with HGI (HGI had sued GTFM for breach of contract, an accounting of unpaid royalties, and conversion). 8. It is simply fatuous for GTFM to suggest that Plaintiffs seek to "delay this case even

further" (Response ¶ 3), when it is Defendants who had asked for an extension due to personal reasons of

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9.

Plaintiffs agreed to such not knowing (because GTFM had not disclosed it) that GTFM's

millions in insurance were no longer on the table. 10. Plaintiffs' request for more information on the matter would cause no delay. Plaintiffs are

committed to not postponing the settlement conference. 11. Plaintiffs never conducted discovery as to insurance because it relied upon GTFM's

6 disclosures and discovery responses filed by their counsel in this case, a reliance that, while now revealed to 7 8 9 10 11 12 13 14 15 16 DATED this 15th day of September 2006. 17 18 19 20 21 22 23 24 25 26 27 28
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have been misplaced, should not prejudice Plaintiffs. 12. Plaintiffs apologize to the Court for not filing their Motion more promptly, but the Plaintiffs

were informed of GFTM's change the day before the telephone conference with Judge Anderson, leaving no time to research potentially complex issues, including the issues of whether a declaratory judgment action may be brought against GTFM's insurer, or what duties, if any, GTFM's insurer may have to Plaintiffs. CONCLUSION WHEREFORE, Plaintiffs respectfully request this Court enforce the Settlement Conference Order by applying whatever remedy it deems appropriate.

ROSENQUIST & ASSOCIATES

By:

____/S/ Anders Rosenquist___________ Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff Meadowlark Lemon

MORGAN & MORGAN, P.A.

By:

____/S/ Clay M. Townsend___________ Clay Townsend Keith Mitnik Attorneys for Plaintiffs, Fred Neal,

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Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders PLEASE TAKE FURTHER NOTICE that a copy of the above-referenced document has been served by first class mail on the following attorneys: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Ira S. Sacks, Esq. Safia A. Anand, Esq. DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Certificate of Service

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Vanessa Braeley, declares as follows: 1. I hereby certify that on September 15th, 2006, a true and correct copy of Plaintiffs' Reply to

Defendant GTFM, LLC's Response to Plaintiffs' Joint Motion to Enforce Settlement Conference Order was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Edward R. Garvey ­ [email protected] Robert Williams Goldwater, III ­ [email protected] Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected]

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Anders V. Rosenquist, Jr. - [email protected] Ira S. Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of

Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on September 15, 2006, a true and correct copy of Plaintiffs' Reply to

Defendant GTFM, LLC's Response to Plaintiffs' Joint Motion to Enforce Settlement Conference Order was sent by postage-prepaid first-class U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz, Esq. LAW OFFICES OF JOEL L. HERZ La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Ira S. Sacks, Esq. Safia Anand, Esq. DREIER LLP 499 Park Ave.

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New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Edward R. Garvey, Esq. Christa Westerberg, Esq. GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esq. Florence M. Bruemmer, Esq. ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Ray K. Harris, Esq. Fennemore Craig PC 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l. Inc., Harlem Globetrotters Int'l Foundation, and Mannie L. & Catherine Jackson 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct. DATED: September 15, 2006. Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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