Free Motion for Miscellaneous Relief - 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 26 vs. MEADOWLARK LEMON, a married man, Counter-defendant. PLAINTIFFS' JOINT MOTION TO ENFORCE SETTLEMENT CONFERENCE ORDER BY REQUIRING DEFENDANT GTFM'S INSURER TO APPEAR AT THE SETTLEMENT CONFERENCE, AND TO STRIKE GTFM DEFENDANT'S UNTIMELY DISCLOSURES Counter-claimant,

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Plaintiff Meadowlark Lemon, and Plaintiffs, Fred "Curly" Neal, Larry "Gator" Rivers, Dallas "Big D" Thornton, Robert "Showboat" Hall, Marques Haynes, and James "Twiggy" Sanders (collectively referred to as "Plaintiffs"), respectfully request that the Court issue an Order: (i) enforcing the Settlement Conference Order pursuant to 28 U.S.C. §473(b)(5) by requiring GTFM, LLC's (hereinafter "GTFM" or "FUBU Defendants") insurer to appear at the settlement conference;

6 (ii) excluding GTFM's Third Amended Initial Disclosure Statement dated July 13, 2006 from this 7 8 9 10 11 12 13 14 15 16 1. 17 settlement conference with Judge Anderson, GTFM served a Notice of Service of Third Amended Initial 18 19 20 21 22 23 24 25 26 a Commercial Insurance Policy from Travelers Property Casualty prepared by Alliance Worldwide, Inc., 27 28
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action pursuant to Fed. R. Civ. P. 26(e)(1) and 37(c) and preventing GTFM from taking a contradictory position after close of discovery as to insurance availability; (iii) allowing additional discovery as to insurance availability; (iv) issuing an order to show cause why an insurance representative should not appear at the settlement conference; and (v) issuing an order to show cause why GTFM should not be sanctioned, including for costs and attorneys' fees associated with the filing of this motion. INTRODUCTION On July 13, 2006, the very day before the initial conference call relative to the proposed

Disclosures (Doc. # 432, hereinafter "Third Amended Disclosures"). 2. In paragraph 4 of the GTFM Third Amended Disclosures, GTFM with a one word change,

completely contradicted its position as to the existence of insurance coverage, a position which GTFM has maintained since the inception of this litigation. GTFM's new disclosure states "GTFM is NOT insured for the damages, claims, or actions that are the subject of this litigation." (Exhibit A, GTFM Third Amended Disclosures). 3. On January 28, 2005, GTFM provided to the Plaintiffs two insurance policies as follows: 1)

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(Bates stamped GTFM, LLC #000380-#000557), and 2) a Commercial Excess Liability (Umbrella) Insurance Policy (hereinafter "Umbrella Policy") from Travelers Property Casualty, prepared by Alliance Worldwide, Inc. The Umbrella Policy is Bates stamped GTFM, LLC #000558-#000836 and stated on Bates page #000560 aggregate limits of liability of $5,000,000 for a policy period of May 29, 2002 to May 29, 2003. (Exhibit B, GTFM letter dated January 28, 2005, and Exhibit C, excerpts of Insurance Policies).

6 Both of the aforementioned policies list GTFM, LLC as an insured on the named insured endorsement. 7 8 9 10 11 12 13 14 15 16 the subject of this litigation. (Exhibit D, GTFM's Amended Initial Disclosures). 17 6. 18 19 20 21 22 23 24 25 26 an Umbrella Policy providing for $5,000,000 in insurance was available for Plaintiffs' alleged damages in 27 28
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4.

Plaintiffs also ask the Court to note that the insurance policies cover two former Defendants

which the FUBU Defendants successfully had dismissed from this action arguing that they had no role at all in the claims--i.e. FUBU The Collection, LLC and GTFM of Orlando, LLC. These supposedly innocent and inappropriate Defendants are specifically listed in the Umbrella Policy at Bates #000562, and FUBU The Collection LLC is listed in the Commercial Policy at Bates #000388. (Exhibit C, excerpts of Insurance Policies). 5. Then on September 16, 2005, GTFM served its Amended Initial Disclosures and expressly

represented to the Plaintiffs that there was insurance coverage for the damages, claims or actions that are

At the July 14, 2006 telephone conference with Judge Anderson, GTFM counsel stated to

Judge Anderson that this insurance was no longer available, notwithstanding the fact that such a disclosure was not made until over nine months after the close of the discovery deadline on September 30, 2005. GTFM's dilatory shift to a completely contradictory position nearly one year after the close of discovery, while knowing that Plaintiffs would be prevented from obtaining further discovery, is highly prejudicial to Plaintiffs. Moreover, GTFM gave no explanation as to why it failed to disclose such a material fact. GTFM's untimely disclosure was admittedly directed at the upcoming settlement conference. 7. Plaintiffs have relied upon GTFM's representation that a Commercial Insurance Policy and

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formulating its litigation strategy, including its consideration of various settlement overtures made in the case. Indeed, and most importantly, Plaintiffs agreed to GTFM's request to delay trial for a settlement conference in part because of their reliance on the representation that this insurance was available. After stipulating to the request for the settlement conference and on the very eve of the telephone conference with Judge Anderson, Plaintiffs were ambushed with GTFM's new contradictory position that the insurance

6 is unavailable. 7 8 9 10 11 12 13 14 15 16 In Equal Employment Opportunity Commission v. Lennar Homes of Arizona, Inc., 2006 WL 1734594 (D. 17 Ariz. 2006), this Court allowed additional discovery before trial. Given GTFM has provided no explanation 18 19 20 21 22 23 24 25 26 close of discovery almost one year ago), GTFM delayed filing its untimely Third Amended Disclosure just 27 28
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ARGUMENT I. THE COURT SHOULD ALLOW ADDITIONAL DISCOVERY 8. At a minimum, Plaintiffs should be permitted to conduct very brief discovery, including

depositions, of GTFM's insurance company representatives to determine whether or not the coverage originally disclosed and relied upon by Plaintiffs is indeed unavailable, and if not, determine why GTFM waited till the eve of the telephone conference to disclose this to Plaintiffs. For a case that has been pending for years and in which discovery and motion practice closed almost one year ago, the Third Amended Disclosures filed weeks before the settlement conference is not filed at an "appropriate" interval.

as to the insurance coverage issue at this stage of the case, Plaintiffs should be allowed to conduct additional discovery on the issue of insurance availability before the settlement conference. II. THE COURT SHOULD ENFORCE THE SETTLEMENT CONFERENCE ORDER BY REQUIRING THE DEFENDANTS' INSURER TO APPEAR AT THE SETTLEMENT CONFERENCE 9. This Court ordered in its Order Setting Settlement Conference dated July 14, 2006 at ¶ 1

that: "...a representative of that party's insurer with full and complete authority to discuss settlement of the case shall physically appear at the aforesaid date and time." Despite deadlines that passed (including the

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before the settlement conference in an attempt to circumvent having its insurer present at the conference. Accordingly, the Court should enforce the requirements of the Order Setting Settlement Conference by requiring GTFM's insurer to appear, as no explanation was given by them as to why all of a sudden no coverage exists on policies in which Defendant is a named insured. 10. The Court has the option to impose sanctions upon Defendant for failure to obey the Order

6 to have a representative of the party's insurer with full and complete authority to discuss settlement of the 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 file amended disclosures which attempt to contradict or withdraw evidence or positions taken in previous 22 discovery and disclosure, especially when such an effort is untimely or made after the close of discovery. 23 24 25 26 27 28
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case to physically appear at the hearing. Pitman v. Brinker Int'l., Inc., 216 F.R.D. 481 (D. Ariz. 2003); and Official Airline Guides, Inc. v. Goss, 6 F.3d 1385 (9th Cir. 1993). III. 11. THE COURT SHOULD STRIKE THE THIRD AMENDED DISCLOSURE The Court should exclude Defendant's July 13, 2006 untimely Third Amended Disclosure.

Fed. R. Civ. P. 26(e)(1) provides that: A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Here the Third Amended Disclosure must be excluded. The dramatic shift in position by GTFM is highly prejudicial to the Plaintiffs, appears to be directed solely for the purpose of an eleventh hour effort to frustrate the settlement conference in favor of Defendant, and is suspect given that such disclosure could have been made much earlier thereby allowing Plaintiffs to conduct discovery to investigate this matter. 12. The courts of the Ninth Circuit have found that sanctions are appropriate for parties who

Cambridge Elecs. Corp. v. MGA Elecs., Inc., 227 F.R.D. 313, 321 (D. Cal. 2004)(rule 26(e) requires continuing duty to seasonably correct disclosure at appropriate intervals if party learns a previous disclosure is incorrect, and sanctions for failure to disclose under Rule 26(e) in a timely fashion are automatic and mandatory); Stone v. River, 1992 U.S. App. LEXIS 2616 (9th Cir. 1992) (when a party obtains information

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upon the basis of which the party knows that the response was incorrect when made, the party is under a duty seasonably to amend a prior response or otherwise be subject to sanctions). IV. DEFENDANTS SHOULD SHOW CAUSE WHY THEY SHOULD NOT BE SANCTIONED Finally, Plaintiffs request that the Court impose sanctions in this matter if GTFM fails to comply with the Court's Order Setting Settlement Conference, and for untimely filing the Third Amended Disclosures, or issue an order to show cause as to why they should not be sanctioned. Fed. R. Civ. P. 37(c)(1) allows for the award of fees and costs incurred by the failure to make a timely disclosure. Also, this Court has imposed sanctions for violating a settlement conference order. See Pitman. CONCLUSION

11 WHEREFORE, Plaintiffs respectfully request this Court 1) enforce the Settlement Conference 12 13 14 15 16 17 18 19 20 21 ROSENQUIST & ASSOCIATES 22 23 24 25 26 27 28
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Order by requiring GTFM, LLC's insurer to appear at the settlement conference; 2) exclude GTFM's Third Amended Initial Disclosure Statement dated July 13, 2006 from this action pursuant to Fed. R. Civ. P. 26(e)(1) and 37(c) and prevent GTFM from taking a contradictory position after close of discovery as to insurance availability; 3) allow additional discovery as to insurance availability; 4) issue an order to show cause why an insurance representative should not appear at the settlement conference; and 5) issue an order to show cause why GTFM should not be sanctioned, including for costs and attorneys' fees associated with the filing of this motion. DATED this 8th day of September 2006.

By:

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

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MORGAN & MORGAN, P.A.

By:

____/S/ Clay M. Townsend___________ Clay Townsend Keith Mitnik Attorneys for Plaintiffs, Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

PLEASE TAKE FURTHER NOTICE that copies of the above-referenced documents have been served via facsimile and 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

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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 7 8 9 10 11 assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Vanessa Braeley, declares as follows: 1. 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

been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 2. I hereby certify that on September 1, 2006, a true and correct copy of Plaintiffs' Joint

Motion to Enforce Settlement Conference Order was sent by facsimile and 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. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 DATED: September 8, 2006. 18 19 20 21 22 23 24 25 26 27 28
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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.

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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