Free Reply to Response to Motion - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 [email protected] (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' Inc., l, Harlem Globetrotters International Foundation, Inc., and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC DEFENDANTS'REPLY IN SUPPORT OF THEIR MOTION TO STRIKE AND PRECLUDE PLAINTIFFS'UNTIMELY DISCLOSURES

13 MEADOWLARK LEMON, et al., 14 15

Plaintiffs, vs.

HARLEM GLOBETROTTERS 16 INTERNATIONAL, INC., et al.;
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Defendants.

18 HARLEM GLOBETROTTERS

INTERNATIONAL, INC., an Arizona 19 corporation,
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Counterclaimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant.

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Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Mannie L. and Catherine Jackson (collectively referred to as the "HGI Defendants"), along with Defendants GTFM, LLC, FUBU the Collection, LLC, and GTFM of Orlando, LLC d/b/a FUBU Company Store (collectively referred to as the "FUBU Defendants") (the HGI Defendants and the FUBU Defendants are collectively referred to as "Defendants") submit this reply to the Neal Plaintiffs' Response to Defendants' Motion to Strike and Preclude Plaintiffs' Untimely Disclosures. (Doc. # 412.) On May 12, 2006, the Defendants jointly filed a motion to strike and preclude the Neal
1 Plaintiffs' affidavits and supplemental disclosure statement ("Defendants' joint motion").

(Doc. # 405.) As stated in the Defendants' joint motion, Plaintiffs' affidavits and supplemental disclosures from May 4 and May 9, 2006 (see Docket Nos. 392-401) were untimely. The discovery cutoff in this case was September 30, 2005, and Plaintiffs' last date to file summary judgment materials was December 16, 2005, such that Plaintiffs' new filings were in violation of the Court' scheduling Orders (Doc. # 78, 143, 173) and LRCiv 56.1. On May 15, 2006, s plaintiffs made four more untimely disclosures. (Doc. # 406-409.) The Defendants

supplemented their motion to strike to apply to these new untimely disclosures. (Doc. # 410). In Defendants' joint motion and its supplement, Defendants requested that the Court strike the newly filed materials, exclude witnesses and documents identified in Plaintiffs' untimely disclosure, and sanction the plaintiffs for their egregious conduct. The Neal Plaintiffs filed a response to both of the Defendants' filings on May 19, 2006. (Doc. # 412.) Plaintiffs claimed their new filings comply with all applicable rules and this Court' orders and should not be stricken; additionally, Plaintiffs claimed their supplemental s disclosures were proper and should not be excluded. Plaintiffs are wrong, and their untimely filings should be stricken, their untimely disclosures excluded, and Plaintiffs should be sanctioned for their conduct.
The Neal plaintiffs include plaintiffs Neal, Rivers, Thornton, Haynes, Hall, and Sanders. Case 2:04-cv-00299-DGC Document 414
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ARGUMENT I. THE COURT SHOULD STRIKE THE UNTIMELY MAY 9 AND 15 TOWNSEND DECLARATIONS. The Untimely Declarations Violate the Court' Orders and Local Rules. s The Townsend declarations and all materials filed therewith (Doc. # 392-401, 406-09) should be stricken. The Neal Plaintiffs acknowledge the summary judgment deadlines set forth

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in this Court' October 7, 2005, Order and LRCiv 56.1. However, Plaintiffs claim the untimely s
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materials do not violate the Court' orders and local rules regarding filings of dispositive s
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motions, because the materials "are not dispositive motions, and instead are just supplements
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and additional support for the various summary judgment motions filed prior to the dispositive motions deadline." (Plaintiffs' Resp., Doc. # 412, at 4.) Plaintiffs' argument is absurd. Clearly, the local rules anticipate that a party will file all of its supporting materials with its summary judgment memoranda, including affidavits. E.g., LRCiv 56.1(a) (stating that parties shall file statements of fact with their summary judgment memoranda, and "[a]s to each fact, the statement shall refer to a specific portion of the record where the fact may be found (i.e., affidavit, deposition, etc.)"). Plaintiffs had ample opportunity to file these materials between five and six months ago, when summary judgment materials were due under the October 7, 2005, Order. Plaintiffs cite cases from other jurisdictions to support their position, but it is clear that in the Ninth Circuit Court of Appeals, local rules govern the deadlines for submission of summary judgment materials. "F.R.C.P. 56(c) does not unconditionally require a district court to accept affidavits up to the date set for hearing on the motion for summary judgment. Rather, the rule allows district courts to adopt procedures pursuant to which the nonmoving party may oppose a motion prior to a hearing." Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1994). LRCiv. 56.1, in tandem with this Court' October 7, 2006, Order, does exactly s that, providing a deadline for dispositive motions, responses, and replies that passed five to six

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months ago in this case. Simply because this Court scheduled a hearing on the motions does not give Plaintiffs license to flood the record with hundreds of pages of new documents and introduce five new witnesses.2 Moreover, the Neal Plaintiffs overstate the cases they cite, which do not support their admittedly untimely filings. In Strang v. U.S. Arms Control & Disarmament Agency, the district court accepted affidavits the defendant filed with a reply brief, which the plaintiff did not oppose. 864 F.2d 859, 861 (D.C. Cir. 1989). Had the Neal Plaintiffs filed their materials with their summary judgment reply, the Defendants would have received them in December. The materials accepted by the court in Laningham v. United States Navy were treated as a renewed motion for summary judgment, while here all summary judgment motions are still pending. 813 F.2d 1236, 1239 (D.C. 1987). Additionally, the documents filed in Laningham were in specific response to documents filed by the opposition, while Plaintiffs' untimely documents relate to no specific subject or recent filing, and instead indiscriminately flood the record with new material. Plaintiffs' final case, Time Oil Co. v. Cigna Prop. & Casualty Ins. Co., did not even address Fed. R. Civ. P. 56, but accepted late-filed affidavits upon a finding of no prejudice. 743 F. Supp. 1400, 1406 (W.D. Wash. 1990). Here, the Defendants have shown prejudice: Defendants have not had an opportunity to depose the new witnesses or depose previously-deposed witnesses about the new documents, much less conduct other discovery related to Plaintiffs' filings. The Neal Plaintiffs argue that the Court may accept its untimely materials in its discretion. However, the cases Plaintiffs rely on support the opposite conclusion. In Western Chance #2, Inc. v. KFC Corp., the court of appeals affirmed the district court' decision to s refuse affidavits filed long after the date prescribed by District of Arizona local rules. 957 F.2d 1538, 1544 (9th Cir. 1992) ("The district court has discretion to refuse the filing of untimely
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Plaintiffs'May 9, 2006, filing introduced the affidavits of three new witnesses (Rose Neal, Robert Meloni, and LL Cool J) and their May 15, 2006, filing introduced the affidavits of two new witnesses (Philip S. Anderson and Phillip Crandall). Case 2:04-cv-00299-DGC Document 414
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affidavits.") (emphasis added); see also Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 29 (1st Cir. 1980) (rejecting affidavit submitted with motion for reconsideration because it was not supported by personal knowledge); De Long Corp. v. Raymond Int' Inc., 622 F.2d 1135, 1139l, 40 (3d Cir. 1980) (rejecting untimely summary judgment affidavits); Sames v. Gable, 100 F.R.D. 749, 751 (E.D.Pa. 1983) (rejecting untimely summary judgment affidavits); Hooks v. Hooks, 771 F.2d 935, 946 (6th Cir. 1985) (accepting opposing untimely affidavit where movant' affidavits were untimely, on motion made, and where counsel offered a "plausible s explanation for [the affidavit' untimeliness"). s] Furthermore, Fed. R. Civ. P. 6(b) permits courts to accept materials after the expiration of their due date "upon motion made . . . where the failure to act was the result of excusable neglect." The Neal Plaintiffs have neither moved the Court to accept their untimely

submissions, nor shown that failure to file these materials previously was the result of excusable neglect. Maynard v. CNA Group Life Assurance Co., 2006 U.S. Dist. LEXIS 1043, *5-*9 (Jan. 10, 2006) (striking numerous untimely documents submitted by plaintiff in opposition to defendants' motion for summary judgment). Plaintiffs' failure to move the Court on this issue is reminiscent of their failure to come to the Court when it was apparent they could not timely submit a full and complete expert report. (Order at 2, 8/3/05, Doc. # 143.) Plaintiffs' untimely filings should be stricken. The Untimely Declarations Violate Fed. R. Civ. P. 56(e). The Neal Plaintiffs also incorrectly argue that their untimely declarations are supported by personal knowledge and thus comply with Fed. R. Civ. P. 56(e). Plaintiffs' argument that the newly-submitted declarations and affidavits do not introduce new facts, but simply attach documents that "relate back" to their previously filed statements of fact, is meaningless. The

declarations and affidavits, including their attachments, are clearly offered as facts opposing the Defendants' summary judgment motions and supporting Plaintiffs' motion, and thus must comply with Fed. R. Civ. P. 56(e).

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The declarations of Attorney Townsend are inadmissible under this standard. Plaintiffs miss the Defendants' argument that "Plaintiffs' counsel is simply not qualified to provide his opinion about how documents are allegedly relevant to summary judgment." (Defs.' Mot. to Strike, Doc. # 405, at 7.) Attorney Townsend' self-serving statements that the untimely s

materials are relevant and support the Neal Plaintiffs' summary judgment arguments would not be admissible at trial, violate Fed. R. Civ. P. 56(e), and invade the Court' province to make s these determinations. Additionally, to the extent Attorney Townsend' declarations include s facts and attach documents of which he lacks personal knowledge, they violate Fed. R. Civ. P. 56(e) and must be stricken. (E.g., May 9 Townsend Dec. and attachments, Doc. # 406); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002) (striking documents attached to attorney' s affidavit due to inadequate authentication or hearsay). The same is true of Plaintiffs' other affidavits. For example, it is inconceivable that Rose Neal has personal knowledge of Globetrotters- and union-related documents from the 1980s that do not mention her or indicate she received the documents at the time. (R. Neal Aff., Doc. # 393.) Similarly, the affidavit of Philip S. Anderson specifically states that he cannot swear the court documents referred to in his affidavit are correct, due to the passage of time and other issues. (Anderson Aff., Doc. # 407, ¶ 4.) Plaintiffs' new submissions fall prey to hearsay and other evidentiary objections, and should be stricken for this reason as well. (E.g., id.) The Neal Plaintiffs were required to submit all of their summary judgment materials months ago. On the eve of the hearing on the motions, Plaintiffs cannot create a vague new rule allowing them to file documents "sometime after the filing of the motions for summary judgment, but before the date set for the hearing on the motion." (Plaintiffs' Resp., Doc. # 412, at 9.) The Court should strike the recent Townsend Declarations and all documents filed therewith. ... ...

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II.

THE COURT SHOULD EXCLUDE PLAINTIFFS'UNTIMELY DISCLOSURES. In addition to moving to strike the Plaintiffs' untimely court filings, the Defendants have

moved to exclude witnesses and documents Plaintiffs identified in a Supplemental Disclosure Statement served on the Defendants on May 4, 2006, more than seven months after the discovery cutoff. The Neal Plaintiffs claim this disclosure was timely, and that Fed. R. Civ. P. 26(e) does not provide a deadline for supplemental disclosures. Yet as the Advisory Committee Notes to Rule 26 (1993 Amendments) clearly state, "[s]upplementations . . . should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches" (emphasis added); see also Depew v. Shopko Stores, Inc., 2006 U.S. Dist. LEXIS 1918, *8-*9 (D.Idaho Jan. 6, 2006). In Depew, the court excluded two witnesses disclosed seven months after the discovery cutoff, stating "[b]ecause the disclosure came after the close of discovery, it would be harmful for that reason." Id. at *10. As in Depew, Plaintiffs' disclosures were made seven months after the September 30, 2005, close of discovery. (Order, 8/3/05, Doc. # 143.) Plaintiffs' May 4, 2006, disclosures are untimely and should be excluded per Fed. R. Civ. P. 37(c). The Neal Plaintiffs' failure to identify the documents and two new witnesses named in their disclosure-- Rose Neal and James Todd Smith, a/k/a LL Cool J3-- was not substantially justified and was not harmless. Fed. R. Civ. P. 37(c)(1). As explained in the Defendants' joint motion, the new documents were obviously filed in a last-ditch attempt to ward off summary judgment. This is not substantial justification or a harmless omission. Plaintiffs' claim that the information was disclosed "immediately after the discovery of its existence" and is therefore harmless, rings hollow. Some of the documents, including those attached to the May 3, 2006, affidavit of Oliver Phipps, were not generated until after the discovery and summary judgment deadlines in this case. (Doc. #400 (indicating Mr. Phipps generated photos and documents
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The Neal Plaintiffs'May 4, 2006, supplemental disclosures did not identify their other new witnesses: Robert Meloni, Philip S. Anderson, and Phillip Crandall. Case 2:04-cv-00299-DGC Document 414
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during investigations in December 2005 and from February-April 2006)). It is unclear why Plaintiffs were still generating documents for this case in violation of this Court' deadlines, but s in any case, the Plaintiffs cannot self-create "substantial justification" for their late disclosures. Plaintiffs' self-serving claims that other documents were recently discovered by relatives in the odd basement or storage space are also insufficient to show substantial justification or a harmless omission. Fed. R. Civ. P. 37(c). Plaintiffs erroneously claim their failure to previously disclose new witnesses and documents was harmless because a trial date has not been set for this case. Yet since discovery has long been closed, the Defendants cannot bring the full complement of discovery tools the Federal Rules of Civil Procedure provide to these new witnesses and documents. Depriving the Defendants of this ability is not "harmless"; rather, the Defendants are "put to the Hobson' s choice of either flying blind on cross-examination or asking for a delay to conduct discovery." Depew, 2006 U.S. Dist. LEXIS at *8. The Defendants find cold comfort in Plaintiffs' promise that Defendants may "interview" the new witnesses, particularly since it is unclear Plaintiffs could or would even produce the witnesses for an interview. The Neal Plaintiffs' Supplemental Disclosure is simply the last in a line of untimely-filed documents that, if allowed, will have no foreseeable end and will unnecessarily draw out this case. Plaintiffs' new disclosures should be excluded. III. PLAINTIFFS SHOULD BE SANCTIONED. The Neal Plaintiffs have made no compelling argument as to why the Court should not sanction them for their egregious failure to make a timely disclosure per Fed. R. Civ. P. 37(c)(1). Rather, Plaintiffs again attempt to argue that Defendants have not been prejudiced, to no avail. For example, Plaintiffs claim the Defendants have "ample opportunity" to respond to their untimely disclosure before the June 2, 2006, hearing in this case. Yet the Defendants clearly cannot conduct discovery with respect to information in the disclosure before June 2, nor do they desire to further extend the already extensive discovery period provided by the Court' s

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previous orders. Plaintiffs are also incorrect that the Defendants relied on Resolution Trust Corp. v. Hidden Ponds Phase IV Development Associates to support their claim for sanctions. The Defendants cited this case in support of their request to exclude Plaintiffs' untimely filing, not in support of their request for sanctions, and Plaintiffs' arguments based on this case should be disregarded. For the reasons stated in the Defendants' joint motion, Plaintiffs should be sanctioned for their egregiously late disclosure. CONCLUSION Based on the foregoing and the Defendants' joint motion, the Defendants respectfully request that the Court (i) strike the May 9 and 15 Townsend declarations, and all documents submitted therewith, and preclude them from being considered on the pending summary judgment motions; (ii) exclude the supplemental disclosure from this action; and (iii) sanction Plaintiffs for their egregious conduct and award the Defendants their costs and fees associated with the filing of this motion. RESPECTFULLY SUBMITTED this 24th day of May, 2006. By: s/ Edward R. Garvey____________ Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 [email protected] Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 [email protected] Attorneys for Defendants Harlem Globetrotters Int' Inc., Harlem Globetrotters Int' Foundation, l, l and Mannie L. & Catherine Jackson
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Ira S. Sacks Safia A. Anand DREIER LLP 499 Park Avenue New York, New York 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected] Joel Herz THE LAW OFFICES OF JOEL HERZ 3573 E. Sunrise Dr., Suite 215 Tucson, AZ 85718-3206 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Attorneys for Defendants GTFM, LLC, FUBU The Collection, LLC and GTFM of Orlando LLC d/b/a FUBU Company Store CERTIFICATE OF SERVICE 1. I hereby certify that on May 24, 2006, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Edward R. Garvey ­ [email protected] Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected] Joel Louis Herz ­ [email protected] Ira S. Sacks ­ [email protected] Anders Rosenquist, Jr. ­ [email protected] Clay Townsend ­ [email protected] Robert W. Goldwater, III ­ [email protected] 2. I hereby certify that on May 24, 2006, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan Colling & Gilbert PA
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20 N. Orange Ave. Suite 1600 Orlando, FL 32802 Brandon Scott Peters Goldwater Law Firm 15333 N Pima Rd Ste 225 Scottsdale, AZ 85260

s/Melody Tolliver

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