Free Response to Motion - 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. NEAL PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE AND PRECLUDE PLAINTIFFS' UNTIMELY DISCLOSURES AND DEFENDANTS' SUPPLEMENTAL MOTION TO STRIKE AND PRECLUDE PLAINTIFFS' ADDITIONAL UNTIMELY DISCLOSURES 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 Plaintiffs, Fred "Curly" Neal, Larry "Gator" Rivers, Dallas "Big D" Thornton, Robert "Showboat" 26 Hall, Marques Haynes, and James "Twiggy" Sanders (collectively referred to as "Plaintiffs"), hereby respond to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation,
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Counter-claimant, vs. MEADOWLARK LEMON, a married man, Counter-defendant. NEAL PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE AND PRECLUDE PLAINTIFFS' UNTIMELY DISCLOSURES AND DEFENDANTS' SUPPLEMENTAL MOTION TO STRIKE AND PRECLUDE PLAINTIFFS' ADDITIONAL UNTIMELY DISCLOSURES

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Inc., Mannie L. Jackson and Catherine Jackson's (collectively referred to as the "HGI Defendants") and Defendants GTFM, LLC, FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store's (collectively referred to as the "FUBU Defendants" )(the HGI Defendants and the FUBU Defendants are collectively referred to as "Defendants") Motions to Strike and Preclude Plaintiffs' Untimely Disclosures (Doc. # 405 & Doc. # 410)(hereinafter "Motions to Strike"). Plaintiffs respectfully request that

6 both Defendants' Motion to Strike and Preclude Plaintiffs' Untimely Disclosures and Defendants' 7 8 9 10 11 12 13 14 15 16 that were filed by Harlem Globetrotters, Inc.), and the HGI Defendants stated in their Statement of Facts 17 (Doc. #196, ¶ 62): 18 19 20 21 22 23 24 25 26 5. 27 procedurally proper. 28
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Supplemental Motion to Strike and Preclude Plaintiffs' Additional Untimely Disclosures, be denied for the following reasons. 1. The exclusion of relevant, highly probative evidence could result in prejudice and injustice to

Plaintiffs, and it is Defendants' failure to disclose that has prevented Plaintiffs from deposing unknown witnesses; 2. It is the Defendants who have failed to disclose this evidence and they should be estopped

from complaining or acting surprised (i.e. Mannie Jackson testified that he was unaware of any Collective Bargaining Agreements and produced none, yet Plaintiffs obtained certified copies in Arkansas court files

"Due to the passage of time and changes in ownership, the Globetrotters no longer possess copies of some licensing agreements and related documents contemporaneous with Plaintiffs' time as Globetrotters players. For example, the Globetrotters cannot locate their agreement with CBS relating to the mid-1970s television program `The Harlem Globetrotters Popcorn Machine,' which included several Plaintiffs. (Jackson Aff. ¶15.)" 3. Plaintiffs have not intentionally withheld any evidence and were diligent during the discovery

period (why would Plaintiffs withhold favorable evidence?); 4. Plaintiffs' affidavits and exhibits offer no new legal theories or assertions and there is no

prejudice to Defendants who have ample opportunity to provide opposing affidavits; Plaintiffs filing of affidavits and exhibits prior to the summary judgment hearing is

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6.

Plaintiffs have complied with their duty to supplement disclosures. (Defendants have made

no supplemental disclosures). I. THE COURT SHOULD NOT STRIKE THE MAY 9th AND MAY 15th TOWNSEND DECLARATIONS. Plaintiffs submitted a Declaration by Clay Townsend, and various affidavits and documents therewith, on May 9, 2006. Plaintiffs also submitted a Declaration by Clay Townsend, and various affidavits and documents therewith, on May 12, 2006. In both Declarations, counsel stated that the Declarations were being submitted in further support of Plaintiffs' Motion for Summary Judgment, Plaintiffs' Response in Opposition to HGI's Motion for Summary Judgment, Plaintiffs' Response in Opposition to FUBU's Motion for Summary Judgment, and Plaintiffs' Response in Opposition to FUBU's Renewed Motion for

11 Summary Judgment. 12 13 14 15 16 17 18 19 20 21 time and opportunity to respond to the Declarations and evidence submitted therewith, as contemplated by 22 Rule 56, Federal Rules of Civil Procedure. Plaintiffs acknowledged Defendants' right to respond to the 23 24 25 26 27 28
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Defendants incorrectly asserted in their Motions to Strike that Plaintiffs gave no explanation as to why the Declarations and attachments were not previously produced. In fact, Plaintiffs stated in the May 9th Declaration "The affidavit of Plaintiffs assert that, despite their good faith efforts to produce all documents earlier, documents were recently discovered in various storage areas by relatives of Plaintiffs." Defendants also ignore that it was their obligation to have disclosed certain of these Harlem Globetrotter documents in the first place. The Declarations are neither in violation of this Court's orders, nor in violation of the local rules of the District of Arizona. Furthermore, the late submissions are not prejudicial to Defendants as they had

Declarations by stating "The Defendants have an opportunity to respond." (May 9th Declaration at p.6, ¶ 11). However, Defendants chose not to respond and instead decided to file the improper Motions to Strike. Furthermore, the Declarations do not set forth any new statements of fact. Instead the Declarations only submit additional affidavits and documents in support of the various statements of fact and

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responsive statements of fact, in addition to the documentary evidence previously submitted in support of those facts. No new argument and no new facts are submitted in the Declarations. The Declarations simply refer the court and parties to the previous statements of fact submitted with the various summary judgment motions. A. The Townsend Declarations Are Not In Violation Of Court Orders.

6 The Defendants argue that the Declarations somehow violate this Court's orders. Defendants then 7 8 9 10 11 12 13 14 15 16 to Rule 26(f), ARCP, should be made. Therefore, Plaintiffs' submission of supplemental disclosure is also 17 governed by the Federal Rules of Civil Procedure. As a result, Defendants' reliance on the fact that the 18 19 20 21 22 23 24 25 26 Based upon that rule, Defendants claim that Plaintiffs' Declarations are over five months late. However, 27 Local Rule 56.1 only governs the deadlines for submissions of responsive memorandum and reply 28
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cite to this Court's order of October 7, 2005, which extended the deadline for dispositive motions to October 28, 2005. However, Defendants' fail to realize that the Court's order setting a deadline for

dispositive motions has nothing to do with Plaintiffs' submission of additional declarations and disclosures. Plaintiffs' Declarations of May 9th and May 15th are not dispositive motions, and instead are just supplements and additional support for the various summary judgment motions filed prior to the dispositive motions deadline. The Court did not set a deadline for any such supplements, and therefore Plaintiffs' submission of these supplements is governed by the Federal Rules of Civil Procedure. Furthermore, the Court did not specify in the scheduling order the times when supplemental disclosure statements pursuant

Declarations and Supplemental Disclosure are somehow in violation of this Court's orders is misplaced. B. The Townsend Declarations Are Not In Violation Of The Local Rules. Defendants next rely on Local Rule 56.1 to argue that the Declarations are `untimely'. Rule 56.1(b), Local Rules of Civil Procedure, states: "...the opposing party shall, unless otherwise ordered by the Court, have thirty (30) days after service within which to serve and file a responsive memorandum in opposition; the moving party, unless otherwise ordered by the Court, shall have fifteen (15) days after service of the responsive memorandum to file a reply memorandum." (emphasis added).

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memorandum. Plaintiffs have fully complied with the requirements of Local Rule 56.1, as they previously submitted their Motions for Summary Judgment, Responses, and Replies, and Statement of Facts in support of each, within the deadlines set forth by Local Rule 56.1. However, what Defendants fail to see is that Local Rule 56.1 does not set forth any deadline for the submission of supplementary documents (such as supplemental documentary evidence, depositions, affidavits, declarations, etc.) in support of such motions

6 for summary judgment, responsive memorandum or reply memorandum. 7 8 9 10 11 12 13 14 15 16 on other grounds); Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C. Cir. 1987). In Strang, the 17 Plaintiff objected to two affidavits submitted by Defendants on the day of the hearing on Defendant's 18 19 20 21 22 23 24 25 26 Cir. 1987). In Laningham, Plaintiff argued that Defendants did not properly raise the issue of intent and 27 willfulness because it was "raised . . . in a supplemental memorandum filed out of time." Id. The Laningham 28
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As Defendants' Motions to Strike fail to point out, the law and rules regarding the filing of supplemental evidence, documents, affidavits, etc., in support of or opposition to a motion for summary judgment is well settled. There is nothing in the rules that prohibits the filing of supplemental

memorandum, affidavits, or documents in support of a motion for summary judgment. In fact, the case law supports the filing of supplemental affidavits and evidence. Affidavits in support of summary judgment may be served as late as the day of the hearing if they merely support an existing motion and do not constitute a new motion for summary judgment on additional issues or grounds. Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859 (D.C. Cir. 1989)(reversed

motion for summary judgment. Id. The Strang Court held that Plaintiff's objection was insubstantial, as the affidavits merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds. Id. Therefore, the rule in Strang that emerges is: affidavits are considered timely, even when served the day of the hearing, where they merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds. The Court in Laningham even allowed the filing of a supplemental memorandum, which raised new grounds for summary judgment, prior to the hearing. Laningham v. United States Navy, 813 F.2d 1236 (D.C.

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Court found that Plaintiff's argument lacked merit as Plaintiff did not cite any authority in Rule 56, Fed. R. Civ. P., or in the case law that prohibited the filing of a supplemental memorandum in support of a motion for summary judgment. Id. In the case of Time Oil Co. v. Cigna Prop. & Cas. Ins. Co., 743 F. Supp. 1400, 1406 (D. Wash. 1990), plaintiff filed a declaration in support of summary judgment, and defendants moved to strike the declaration

6 as untimely. 7 8 9 10 11 12 13 14 15 16 Raymond International, Inc., 622 F.2d 1135, 1139-40 (3d Cir. 1980) (reversed on other grounds); Sames v. Gable, 17 100 F.R.D. 749, 751 (E.D. Pa. 1983); Hooks v. Hooks, 771 F.2d 935, 946 (6th Cir. 1985). 18 19 20 21 22 23 24 25 26 comply with the requirements of Rule 56(e) that the information contained in an affidavit must be 27 admissible at trial." 28
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The Court in Time Oil denied defendants' motion to strike, having concluded that the Id, citing Strang v. U.S. Arms Control &

defendants were not prejudiced by the untimely declaration.

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (affidavits timely filed when served the day of the hearing where they "merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds"). Furthermore, the district court has discretion to accept late-filed affidavits in support of summary judgment. Western Chance #2, Inc. v. KFC Corp., 957 F.2d 1538, 1544 (9th Cir. 1992). Therefore, it is completely within the discretion of this Court whether to consider affidavits submitted in an untimely fashion. See Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 29-30 (1st Cir. 1980); DeLong Corp. v.

Lastly, Rule 56(e), FRCP, itself allows for the supplementing of affidavits. Specifically, Rule 56(e) states, "...The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Therefore, based upon the foregoing, the Declarations, and all documents and affidavits attached thereto, are proper and should be considered by this Court when ruling upon the various summary judgment motions. C. The Declarations Do Comply With Rule 56(e). Defendants' also attempt to have the Declarations stricken by this Court because they "fail to

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Rule 56(e), FRCP, states: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." The Declarations simply set forth a list of affidavits and other documents that are attached to the Declaration, and relate back the additional evidentiary support to the previously filed statements of facts. The Declarations do not contain any statements of fact themselves in support of Plaintiffs' motions for summary judgment. The Declaration is just a vehicle to inform the Court and parties what documents are attached, and exactly which paragraphs in Plaintiffs' Statements of Facts those additional affidavits and documents are submitted in support of. Any and all of the statements made in the Declarations of counsel

11 are based upon counsel's personal knowledge. Furthermore, all affidavits attached to the Declaration are 12 13 14 15 16 17 18 19 20 21 other documents that are attached to the Declaration, and relate back the additional evidentiary support to 22 the previously filed statements of facts. In no way can the Declarations be construed as legal argument or 23 24 25 26 27 28
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also based upon personal knowledge. Therefore, the Declarations and affidavits attached thereto comply with Rule 56(e). Defendants attempt to argue that Plaintiffs are relying on the Declarations of Plaintiffs' attorney to oppose summary judgment. However, had Defendants simply read the Declarations and the documents attached thereto, it would have been clear to them that Plaintiffs are not relying on the Declarations, but rather the affidavits and documents attached thereto, to support Plaintiffs' summary judgment and oppose Defendants' summary judgment. Absolutely nothing in the Declarations can be construed as facts being relied upon to oppose summary judgment. Instead, the Declarations simply set forth a list of affidavits and

facts upon which Plaintiffs rely in their summary judgment motions. All of the affidavits attached to the Declarations are from witnesses, are based on personal knowledge, and contain evidence that is clearly admissible for summary judgment purposes and at trial.

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Defendants' reliance on Coca-Cola Co. v. Overland, 692 F.2d 1250 (9th Cir. 1982) to support their position that Plaintiffs' affidavits are inadmissible at trial is misplaced. The affidavits in Overland were totally speculative testimony (employee affidavits as to what customers were thinking) that presented no issues of material fact. Here, affidavits have been utilized primarily to introduce reliable documents, including, for example, certified copies of court documents, and authentication of the signature of the

6 attorney of Harlem Globetrotters, Inc. (Philip Anderson, Esq.) in 1985 documents. The court, or a jury, 7 8 9 10 11 12 13 14 15 16 conjunction therewith should be considered by the Court when ruling upon the various motions for 17 summary judgment in this case. 18 19 20 21 22 23 24 25 26 27 28
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may itself weigh this evidence, but should be able to at least consider it. Surely, Defendants would not seek to conceal from the fact finder relevant and reliable evidence. Although Defendants make the statement that the Declarations are not based on personal knowledge, Defendants fail to support that statement with any examples from the Declarations, nor give any support for the statement. Defendants simply set forth the self-serving conclusion without any mention as to which statements fail on the basis of personal knowledge. It is clearly a desperate last-ditch attempt by the Defendants to have Plaintiffs' properly filed Declarations, and attached evidence, excluded from consideration by this Court. Plaintiffs' Declarations are clearly proper and the documents submitted in

D. Plaintiffs' Cases Are Not Inapposite. In the Declarations, Plaintiffs' stated, "11. Fed.R.Civ.P. 56(c) permits the filing of affidavits and exhibits in opposition to a motion for summary judgment ten (10) days before the summary judgment hearing. Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995)(reversing summary judgment where evidence in opposition to a motion for summary judgment was served fourteen (14) days before the hearing); and Provenz v. Miller, 95 F.3d 1376 (9th Cir. 1996)(holding that he district court erred in not considering plaintiff's supplemental declaration and that an opportunity to respond should be afforded to opposing party). The Defendants have an opportunity to respond."

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It is clear that Plaintiffs cited those cases for the general proposition that additional declarations and affidavits may be submitted and supplemented sometime after the filing of the motions for summary judgment, but before the date set for the hearing on the motions. First, Defendants' attempt to discredit Plaintiffs' reliance on Marshall by stating that the schedule set forth in the local rules supersedes any argument Plaintiffs may have under Federal Rule 56(c) regarding the

6 submission of supplemental declarations and affidavits. Defendants' further their argument by citing to 7 8 9 10 11 12 13 14 15 16 judgment is well settled, and allows for the filing of supplemental declarations, affidavits, and other evidence. 17 See Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C. Cir. 1987); Strang v. U.S. Arms Control & 18 19 20 21 22 23 24 25 26 Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Time Oil Co. v. Cigna Prop. & Cas. Ins. 27 28
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various local rules set forth by the Court in Marshall (Local Rule 7.9 and Local Rule 7.6). However, those local rules are not applicable in this case, as they are the local rules of the Central District of California. Defendants' also argue that Marshall held that the local rules regarding the timing of filing affidavits in opposition to a summary judgment motion supercede the federal rules. However, as Plaintiffs extensively set forth in Section I.B., supra, there are not any Local Rules of Civil Procedure for the District of Arizona that govern the timing of filing of supplemental declarations, affidavits, and other evidence in support of or opposition to a motion for summary judgment. Instead, it is clear that the law and rules regarding the filing of supplemental evidence, documents, affidavits, etc., in support of or opposition to a motion for summary

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Time Oil Co. v. Cigna Prop. & Cas. Ins. Co., 743 F. Supp. 1400, 1406 (D. Wash. 1990); Western Chance #2, Inc. v. KFC Corp., 957 F.2d 1538, 1544 (9th Cir. 1992). There is nothing in the rules that prohibits the filing of supplemental memorandum, affidavits, or documents in support of a motion for summary judgment. Therefore, Plaintiffs' reliance on Marshall for the general proposition that additional declarations and affidavits may be submitted and supplemented sometime after the filing of the motions for summary judgment, but before the date set for the hearing on the motions, is clearly correct. See Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C. Cir. 1987); Strang v. U.S.

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Co., 743 F. Supp. 1400, 1406 (D. Wash. 1990); Western Chance #2, Inc. v. KFC Corp., 957 F.2d 1538, 1544 (9th Cir. 1992). Next, Defendants attempt to discredit Plaintiffs' reliance on Provenz by arguing: 1) the untimely affidavits submitted in Provenz were submitted in support of a reply (not the motion or opposition); and 2) were based on personal knowledge. As already explained by Plaintiffs, all affidavits submitted with the

6 Declarations are based on personal knowledge. Furthermore, any statements made by counsel in the 7 8 9 10 11 12 13 14 15 16 proposition that supplemental declarations, affidavits, and other evidence may be submitted after the filing 17 of motions for, and in opposition to, summary judgment. 18 19 20 21 22 23 24 25 26 generated by predecessors to HGI, but were not. 27 28
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Declarations are also based upon counsel's personal knowledge. Therefore, Plaintiffs' Declarations do not differ from Provenz in that respect. Also, it does not matter if the untimely affidavits submitted in Provenz were submitted in support of the reply instead of the motion for summary judgment, or in opposition to a motion for summary judgment. The bottom line and holding in Provenz is that new evidence (specifically a supplemental declaration) may be considered by the court, even if untimely disclosed. Plaintiffs nor

Defendants have found any rule or case which requires the absolute and unconditional exclusion of evidence not submitted with the motion for summary judgment, response, or reply. Therefore, Plaintiffs' reliance on Marshall and Provenz is proper, as both cases support Plaintiffs'

II.

PLAINTIFFS' SUPPLEMENTAL DISCLOSURE SHOULD NOT BE EXCLUDED. Plaintiffs submitted a Second Supplemental Disclosure as soon as they became aware that additional

documents existed that should be disclosed. This disclosure was not made for the purpose of avoiding summary judgment as Defendants state in their Motion. In fact, the supplemental disclosure is a totally separate filing, and was not made in connection with Plaintiffs' recently submitted Declarations. Plaintiffs made that clear by submitting separate Declarations with supporting documents. Many of the documents in the supplemental disclosure should have been hunted down and produced by Defendants as they were

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Defendants request that the Supplemental Disclosure Statement be stricken, and the evidence and witnesses be precluded, because the disclosure was untimely. However, Rule 26(e) of the Federal Rules of Civil Procedure places an affirmative duty on a party who has made an initial disclosure pursuant to 26(a), to supplement that information "if the party learns that in some material respect the information disclosed is incomplete ... and if the additional ... information has not otherwise been made known to the other parties

6 during the discovery process or in writing.". Supplementations need not be made as each new item of 7 8 9 10 11 12 13 14 15 16 untimely. See MRO Communs., Inc. v. AT&T, 1999 U.S. App. LEXIS 32522 (9th Cir. 1999), unpublished 17 (district court did not abuse its discretion by excluding evidence for a two-year delay in disclosing the 18 19 20 21 22 23 24 25 26 of the documents were recently discovered in various storage areas by relatives of Plaintiffs. 27 documents, for example a letter dated March 13, 2006 from Mannie Jackson and photographs of clothing, 28
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information is learned but should be made at appropriate intervals, and with special promptness as the trial date approaches. See Advisory Committee Notes for 1993 Amendments to Fed.R.Civ.Pro. 26(e). Furthermore, Rule 26(e) does not set forth a deadline by which supplemental disclosures must be made. See Fed.R.Civ.P. 26(e)(emphasis added); Advisory Committee Notes for 1993 Therefore, the Advisory Committee Notes state that it may be

Amendments to Fed.R.Civ.Pro. 26(e).

useful for the scheduling order to specify the time or times when supplementations should be made. Id. Although this Court did not specify in the scheduling order the times when supplementations pursuant to Rule 26(f) should be made, the Court clearly has wide discretion in determining whether a disclosure is

evidence). A district court has very wide discretion in handling discovery. See Fed.R.Civ.P. 16(b); Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir. 1979). Even though Plaintiffs' supplemental disclosure was submitted after the deadline for completion of fact discovery, the supplemental disclosure statement was not "untimely" as contemplated by the Federal Rules of Civil Procedure. First, Plaintiffs' supplemental disclosure statement was submitted immediately after the discovery of such documents. All of the evidence and witnesses were either just recently

discovered, or just recently came into existence. For example, as Plaintiffs stated in their Declarations, most Other

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just recently came into existence. Had Plaintiffs had this information and evidence prior to the discovery deadline, Plaintiffs would have not only timely disclosed it to Defendants, but would have surely wanted to use it in support of Plaintiffs' Motion for Summary Judgment, rather than risk that it may be precluded for untimeliness. Second, Plaintiffs have disclosed only two "new" witnesses (Rose Neal and James Todd Smith p/k/a LL Cool J, a FUBU principal), who's relevance to this action were just recently discovered.

6 Because Plaintiffs complied with their affirmative duty to submit a supplemental disclosure and that 7 8 9 10 11 12 13 14 15 16 this witness, as Smith was an undisclosed shareholder that Plaintiffs never got the chance to depose, and 17 who was never disclosed by FUBU in its initial Rule 7.1 disclosures of interested persons or in deposition 18 19 20 21 22 23 24 25 26 These statements conveniently ignore the duty of FUBU to make such disclosures of interested 27 parties and the fact that officers of FUBU, while under oath and after being specifically asked to disclose all 28
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supplemental disclosure was not untimely, and because all witnesses and documents were disclosed soon after their discovery, Plaintiffs' supplementary disclosure should not be excluded. As to "new witness" Rose Neal, her affidavit is more in the form of a records custodian as Plaintiff "Curly" Neal's business manager, and she made no statements as to substantive issues in this case. As Mrs. Neal notes in her affidavit, most of the documents she provided were generated by the Harlem Globetrotters organization, not by her or "Curly" Neal. The HGI Defendants did not produce these documents to Plaintiffs, and such failure to disclose has prejudiced Plaintiffs. As to Smith, the exclusion of the Smith affidavit would result in FUBU's successful concealment of

testimony of FUBU principals Weisfeld, Aurum and Blenden. Plaintiffs certainly would have desired to take Mr. Smith's deposition and would have taken it, had FUBU not concealed him. This issue was briefed in Plaintiffs' Response to FUBU's Renewed Motion for Summary Judgment (Doc. #253) at P. 6, lines 11-23. Counsel for FUBU (Ira Sacks) in his own declaration of December 8, 2005 (Doc. #305) stated that: "15. Plaintiffs never sought specific corporate records regarding membership in GTFM, LLC, or served interrogatories seeking such information," and "16. The identify of shareholders of GTFM, LLC is immaterial to this motion and this litigation."

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principals, failed to disclose Smith (deposition excerpts cited in Plaintiffs' Response to FUBU's Renewed Motion for Summary Judgment, Doc. # 253, lines 11-23, p. 6). FUBU asserted in their Reply to Plaintiff's Response that "Indeed GTFM, LLC did not even know of those sales until Plaintiff disclosed them," and almost comically, "GTFM, LLC is currently investigating whether those sales are illegal." (Doc. #304, P. 13, lines 20-24).

6 FUBU has made no supplemental disclosures of the results of its so-called "investigation." Plaintiff 7 8 9 10 11 12 13 14 15 16 This certainly appears to be untrue given the Philippines FUBU trademark registration and other 17 evidence. 18 19 20 21 22 23 24 25 26 Motion to Strike Plaintiffs' Expert, Doc. #220 at pages 7-10). 27 28
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has offered a supplemental affidavit of its overseas investigator which demonstrates that GTFM, LLC's statement that "those sales were not disclosed because they were not made by GTFM, LLC" (Doc. #304, P. 13, line 19-20) is false given that GTFM, LLC had registered in the Philippines trademark office the name "FUBU" and that the "FUBU The Collection" retail outlet in Manila has the FUBU.com website on its business cards (Gallo Affidavit, Doc. 411). FUBU previously filed with this Court in its Statement of Facts (Doc. # 187) this: "30. The FUBU Defendants were unaware of any sales of alleged FUBU/HGI merchandise in the Philippines until the plaintiffs brought it to their attention on or about September 19, 2005. (Blenden October 2005 Decl. ¶ 3)."

As for timeliness of Plaintiffs' disclosures, the discovery deadline does not relieve the parties from their duties to supplement. Defendants assert that "there is no explanation why Mr. Phipps could not provide this information before the discovery cutoff." (Supplemental Motion, p.2, lines 21-23). The simple answer is that Phipps' disclosure is of ongoing infringing sales even up to the present. Plaintiff is obligated to supplement its previous disclosures and has done so. Additionally, the evidence of ongoing sales in the Phipps' affidavit simply supports Plaintiffs assertions that its damages expert was reasonably precise given Defendants' discovery behavior and given that sales were ongoing. (See Plaintiffs' Response to FUBU's

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Furthermore, even if the Court (under its wide discretion) were to agree with Defendants that Plaintiffs' Supplemental Disclosure Statement was untimely, Plaintiffs' witnesses and evidence should not be precluded because the failure to disclose was harmless. Rule 37(c), Federal Rules of Civil Procedure, states that witnesses and evidence may be excluded at trial only if a party who "without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1)..., unless such failure is harmless..."

6 Plaintiffs' alleged untimely disclosure is harmless because Plaintiffs' supplemental disclosure statement was 7 8 9 10 11 12 13 14 15 16 Plaintiffs' supplemental disclosure is not untimely, as it was disclosed immediately after its discovery, 17 and any alleged untimely disclosure is completely harmless. Therefore, Plaintiffs' supplemental disclosure 18 19 20 21 22 23 24 25 26 27 28
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made immediately after the discovery of the existence of the additional evidence and witnesses, and a trial

date has not yet been set in this matter. Also, Plaintiffs disclosed only two additional witnesses.
Therefore, Defendants have ample time to interview these witnesses prior to trial, and would not be prejudiced in any way. Plaintiffs' would not object to Defendants interviewing the two newly disclosed witnesses. Lastly, as stated a trial date has not yet been set, which also gives Defendants ample time to review the newly disclosed documents, which are minuscule in comparison to previous disclosure in this case. Therefore, Defendants are in no way prejudiced by Plaintiffs' Second Supplemental Disclosure Statement and any alleged failure to timely disclose the witnesses and evidence therein is harmless.

should not be excluded, and Plaintiffs' additional witnesses should be permitted to testify at trial. III. PLAINTIFFS' SHOULD NOT BE SANCTIONED. Defendants request that Plaintiffs be sanctioned by awarding Defendants' their fees and costs by the failure to make a timely disclosure. Plaintiffs' have already given extensive argument as to why Plaintiffs' conduct was not egregious. Plaintiffs' submission of the Declarations is clearly permitted under the rules and case law, and Plaintiffs did nothing improper. Furthermore, Defendants have had an opportunity to respond to the Declarations and evidence submitted therewith as the Declarations were submitted back on May 9th and May 15th, and the hearing is not scheduled until June 2nd. However, the Defendants have

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chosen not to do so, due to no fault of Plaintiffs. Although Defendants have had ample opportunity to respond, they have not. Also, in submitting the supplemental disclosure statement, Plaintiffs' simply complied with their duty of disclosure pursuant to Fed.R.Civ.P. 26. Plaintiffs would have disclosed the documents and

witnesses prior to the discovery deadline had Plaintiffs known of the existence of such documents and 6 relevance of such witnesses. 7 8 9 10 11 12 13 14 15 16 Therefore, Defendants' request for sanctions is completely unjustified. Furthermore, Defendants' reliance 17 on Resolution Trust Corp. v. Hidden Ponds Phase IV Dev. Assocs, 873 F.Supp. 799, 807 (E.D. N.Y. 1995), to 18 19 20 21 22 23 24 25 26 Unlike in Resolution Trust, here Plaintiffs have properly disclosed the documents they seek to use for 27 the purposes of summary judgment. Plaintiffs have not improperly withheld the documents, and submitted 28
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However, Plaintiffs are simply complying with their disclosure duties.

Defendants complain, "Because discovery has closed, Defendants have not had an opportunity to examine the witnesses about the `newly discovered' documents." However, since no trial has yet been set

Defendants have ample time to interview the two new witnesses, and review the new documents, in time to prepare for trial. This disclosure of a few new documents and two new witnesses will not prejudice Defendants in any way. Therefore, Plaintiffs have proven that any late disclosure is "harmless." As Defendants correctly state, one exception to the rule of exclusion is if the offending party's late disclosure was "harmless." Thus, imposing sanctions in this case is improper. All submissions by Plaintiffs have been proper and done pursuant to valid court rules and case law.

justify sanctions in this case, is completely improper.

In Resolution Trust, Defendants requested sanctions

for Plaintiffs' complete failure to disclose documents that Defendants believed Plaintiffs were required to disclose under their duties of disclosure. The Court in Resolution Trust then ruled that even if Defendants' allegation was correct, exclusion did not apply because Plaintiffs did not attempt to use the undisclosed documents in support of its motion for summary judgment. Therefore, Resolution Trust stands for the proposition that if a party purposefully and improperly withholds documents, that party cannot then use those documents in support of its motion for summary judgment.

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a supplemental disclosure statement as soon as the documents were discovered. Furthermore, Defendants have an opportunity to respond to those documents, but chose not to do so. Therefore, unlike in Resolution Trust, sanctions are not appropriate in this case. IV. CONCLUSION Based upon the foregoing, Plaintiffs respectfully request that the Court deny Defendants' Motion to

6 Strike and Preclude Plaintiffs' Untimely Disclosures and Defendants' Supplemental Motion to Strike and 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00299-DGC

Preclude Plaintiffs' Additional Untimely Disclosures. Plaintiffs further request that the Court: (i) allow the May 9th and May 12th Townsend Declarations, and materials submitted therewith, to be considered for the pending summary judgment motions; and (ii) permit the supplemental disclosure. DATED this 19th day of May 2006.

By:

____/S/ Clay M. Townsend___________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 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 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 -16Document 412
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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 Certificate of Service Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on May 19, 2006, a true and correct copy of Neal Plaintiffs' Response to Defendants' Motion to Strike and Preclude Plaintiffs' Untimely Disclosures and Defendants' Supplemental Motion to Strike and Preclude Plaintiffs' Additional Untimely Disclosures, 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]

25 26 27 28

Ray Kendall Harris ­ [email protected] Joel Louis Herz ­ [email protected], [email protected] Anders V. Rosenquist, Jr. - [email protected] -17Document 412

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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 May 19, 2006, a true and correct copy of Neal Plaintiffs' Response to Defendants' Motion to Strike and Preclude Plaintiffs' Untimely Disclosures and Defendants' Supplemental Motion to Strike and Preclude Plaintiffs' Additional Untimely Disclosures was sent by postage-prepaid firstclass 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 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 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is true and correct.

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DATED: May 19th, 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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