Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected] Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected] Attorneys for Defendants GTFM, LLC, FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) Plaintiff/Counterdefendant ) vs. ) ) HARLEM GLOBETROTTERS ) INTERNATIONAL, INC., et al., ) ) Defendants/Counterclaimants ) ____________________________________) MEADOWLARK LEMON, a married man,

Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

MOTION REGARDING THE ORAL ARGUMENT ON JUNE 2, 2006 Defendants GTFM, LLC ("GTFM"), FUBU The Collection, LLC ("FTC") and GTFM of

25 Orlando, LLC d/b/a FUBU Company Store ("GTFM of Orlando")(collectively referred to as the 26 27 28 "FUBU Defendants"), along with Defendants Harlem Globetrotters International Inc. ("HGI"), 1

Case 2:04-cv-00299-DGC

Document 402

Filed 05/10/2006

Page 1 of 5

1 2 3 4

Harlem Globetrotters International Foundation Inc., Mannie L. Jackson and Catherine Jackson (collectively referred to as the "HGI Defendants")(the FUBU Defendants and the HGI Defendants are collectively referred to as "Defendants") submit this motion regarding the oral argument on June 2, 2006. Defendants submitted this motion to plaintiffs Fred "Curly" Neal,

5 6 7 8 9 10 11 12 these motions before the Court, the Defendants respectfully request guidance as to the issues that 13 are most important to the Court during the oral arguments and a structure to the argument 14 15 16 17 18 19 20 Although there are numerous motions pending in this action, the Defendants believe that 21 a number of the motions should be decided on the papers. Specifically, the Defendants propose 22 23 24 25 26 27 28 2 that the following motions be decided solely on the papers: 1) FTC and GTFM of Orlando's Renewed Motion for Summary Judgment; 2) GTFM's Motion to Strike Plaintiffs' Third Supplemental Disclosure Statement; 3) The HGI Defendants' Motion for Summary Disposition; calendar. In an effort to clarify the schedule for the June 2 oral arguments, the Defendants have the following proposed schedule for the arguments, obviously subject to the Court's revision and approval: Motions to Be Decided Solely on the Papers Marques Haynes, Robert "Showboat" Hall, Larry "Gator" Rivers, Dallas "Big D" Thornton and James "Twiggy" Sanders (collectively, the "Neal Plaintiffs") and Meadowlark Lemon ("Lemon")(the Neal Plaintiffs and Lemon are collectively referred to as Plaintiffs") for their consent; however, they did not respond. On April 7, 2006, the Court entered an Order which set forth numerous motions, all of which are to be argued orally on June 2, 2006. While the Defendants look forward to arguing

Case 2:04-cv-00299-DGC

Document 402

Filed 05/10/2006

Page 2 of 5

1 2 3 4

4) The Neal Plaintiffs' First Motion to Dismiss FTC and GTFM of Orlando; 5) FTC's and GTFM of Orlando's Motion to Strike Portions of the Neal Plaintiffs' Reply to GTFM's Opposition to the Neal Plaintiffs' Motion for Summary Judgment; 6) The HGI Defendants' Motion to Strike the Affidavit of Edwin Mutum; and

5 6 7 8 9 10 11 12 The Defendants believe that portions of the following motions should be argued orally on 13 June 2: 14 15 16 17 18 19 20 In light of the overlapping issues in the five above-referenced motions, the Defendants 21 propose that the oral argument be divided by subject matter into four separate segments, with 22 23 24 25 26 27 28 3 each segment dealing with one of the following "major issues": 1) the contract issues; 2) the Lanham Act issues; 3) the state law issues; and 4) the issues relating to the Plaintiffs' damages claims. 1) GTFM's Motion for Summary Judgment; 2) The Neal Plaintiffs' Motion for Summary Judgment; 3) Lemon's Motion for Summary Judgment; 4) The HGI Defendants' Motion for Summary Judgment; and 5) GTFM's Motion to Strike Plaintiffs' Expert Report. 7) The HGI Defendants' Motion for Sanctions against Plaintiffs. Additionally, the Defendants propose that the FUBU Defendants' Partial Opposition to the Neal Plaintiffs' "Request" for Judicial Notice of Certain Facts Under Rule 201 of the Federal Rules of Evidence, which was not one of the motions listed on the Court's April 7, 2006 Order, be decided solely on the papers. Motions to Be Argued Orally on June 2

Case 2:04-cv-00299-DGC

Document 402

Filed 05/10/2006

Page 3 of 5

1 2 3 4

Moreover, the Defendants propose that the first hour be limited to argument on issues related to the claims and defenses concerning the player contracts (i.e. whether HGI owned the rights to the players' names, alleged jersey numbers and/or likenesses as a result of the player contracts and the bankruptcy issues which evolve therefrom).

5 6 7 8 9 10 11 12 defenses under the state law claims, including Plaintiffs' right of publicity claim, false light 13 invasion of privacy claim and defamation claim; and b) the issues relating to the Plaintiffs' 14 15 16 17 18 19 20 issue. Finally, the Defendants propose that no rebuttal time be allowed because cross-motions 21 have been submitted on the "major issues". 22 23 24 25 26 27 28 4 damage report, as well as Plaintiffs' unjust enrichment claim. Additionally, the Defendants propose that the time for each for each of the abovereferenced "major issues" be divided equally between Plaintiffs as a group and Defendants as a group. Each side can then allocate the time accordingly between themselves. The Defendants propose further that Plaintiffs argue first on all of the issues, with the exception of the damage The Defendants propose further that the second hour be limited to oral argument on issues related to the claims and defenses concerning the Plaintiffs' Lanham Act claims (i.e. whether the Plaintiffs are entitled to Lanham Act protection and if so, whether Defendants infringed upon Plaintiffs' rights, as well as whether the laches defense applies in this case). The Defendants propose further that the third hour be broken up into two parts with 30 minutes being allocated to both of the following issues: a) the issues relating to claims and

Case 2:04-cv-00299-DGC

Document 402

Filed 05/10/2006

Page 4 of 5

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

The Defendants respectfully request that the Court enter an Order providing guidance as to the issues that are most important to the Court during the oral arguments on June 2 and proposing a schedule for those arguments. Dated: May 10, 2006 New York, New York

________/irassacks/__________ IRA S. SACKS, ESQUIRE Dreier LLP 499 Park Avenue New York, New York 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 [email protected]

________/edwardgarvey/________ EDWARD GARVEY, ESQUIRE Garvey, McNeil & McGillivray, S.C. 634 W. Main Street, Ste. 101 Madison, Wisconsin 53703 Telephone: 608-256-1003 Facsimile: 608-256-0933 [email protected]

_______/joelherz/_____________ JOEL HERZ, ESQUIRE 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]

________/rayharris/_____________ RAY HARRIS, ESQUIRE The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, AZ 85260 Telephone: 602-916-5000 Facsimile: 602-916-5999 [email protected]

5

Case 2:04-cv-00299-DGC

Document 402

Filed 05/10/2006

Page 5 of 5