Free Joinder - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

6 MEADOWLARK LEMON, a married man, 7 8 vs. 9 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM 10 GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; 11 MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE 12 COLLECTION, LLC, a New York limited liability company doing business in Arizona; GTFM, LLC, a 13 New York limited liability company doing business in Arizona; 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 vs. MEADOWLARK LEMON, a married man, Counterdefendant. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant, Plaintiff,

PLAINTIFF MEADOWLARK LEMON'S REPLY TO DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S RESPONSE TO PLAINTIFF LEMON'S STATEMENT OF FACTS

Plaintiff Meadowlark Lemon (hereinafter "Mr. Lemon" or "Plaintiff"), hereby submits his Reply to Defendant Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, and Mannie L. & Catherine Jackson's (hereinafter collectively as "Defendants") Response to Plaintiff Lemon's Statement of Facts.

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Rather than reiterate the facts that have already been so extensively set forth in Plaintiff's Statement of Facts, Doc. 206, and Plaintiff's Contraverting Statement of Facts in Response to the HGI Defendants Motion for Summary Judgment, Doc. 283, for his reply Plaintiff will simply rely on the facts as set forth in those two documents. However, Plaintiff responds to Defendants general objections as follows. Unauthenticated Documents. Defendants claim that several of the Documents relied upon in Plaintiff's Statement of Facts are unauthenticated. First, Defendants object to Plaintiff's Exhibit "A," the HGI Merchandise Tags.

Plaintiffs' counsel obtained these merchandise tags by going into a retail store and purchasing an item of the Globetrotters FUBU apparel. Furthermore, Mr. Blenden, Mr. Jackson, and Mrs. Jackson identified the tags during their depositions as tags used on Globetrotters FUBU apparel. Second, Defendants object to Plaintiff's Exhibit "C," a letter to Mannie Jackson from Anders Rosenquist, dated December 23, 2003 and Plaintiff's Exhibit "H," a letter to Anders Rosenquist from Ed Garvey, dated September 30, 2003. Both letters were mailed and signed by counsel in this matter. One letter is signed by undersigned counsel and the other letter is signed by Defendants' counsel, Mr. Garvey himself. Therefore Plaintiff is confused about why Mr. Garvey is objecting to the authenticity of his own letter. The letters are communications between counsel in this case. Furthermore, undersigned counsel has had conversations with Defense counsel in this case regarding the letters, and Defense counsel has never before objected to the authenticity of the letters. However, Plaintiff has attached an affidavit by

undersigned counsel which thereby authenticates the letters in question. (See Affidavit of Anders Rosenquist, attached as Exhibit "A"). Third, Defendants object to Plaintiff's Exhibit "N," a List of Years Plaintiffs Played/Coached with the Globetrotters. However, Defendants themselves set forth those years within their own Statement of Facts in Support of the HGI Defendants Motion for Summary -2Document 345

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Judgment. Furthermore, at ¶ 1-2 of RLSOF, Defendants admit that Plaintiff played basketball and performed other tasks for the Harlem Globetrotters from 1955 to 1979, and that Plaintiff occasionally coached for the Globetrotters. Fourth, Defendants object to Plaintiff's Exhibit "P," an ESPN webpage article titled "Globetrotters: A Throwback Original." This article documented an interview with

Mannie Jackson who identified it as Exhibit 9 at his deposition and testified that the interview quotes were accurate. Fifth, Defendants object to Plaintiff's Exhibit "Q," FUBU sales 6/02-5/03 spreadsheets. These spreadsheets were produced to Plaintiffs in discovery. Sixth, Defendants object to Plaintiff's Exhibit "R," Globetrotter Merchandise/Apparel pictures. Again, those documents were produced to Plaintiffs in discovery. Seventh, Defendants object to Plaintiff's Exhibit "T," a newspaper article titled, "Globetrotters call foul on Meadowlark." However, pursuant to Rule 902, Federal Rules of Evidence, newspaper articles are self-authenticating and extrinsic evidence of authenticity as a condition precedent to admissibility is not required. Lastly, Defendants object to Plaintiff's Exhibit "U," the Globetrotters picture/symbol. This is the symbol that Defendants base their entire counterclaim on, which they allege that Plaintiff is infringing upon and therefore Plaintiff is confused as to why Defendants are questioning the authenticity of their own registered trademark. The Globetrotters

picture/symbol was discussed several times during depositions. Furthermore, Exhibit "U" is just a copy of the symbol, which Plaintiff cut from the letterhead of a letter sent from Defendants to Plaintiff, and then enlarged. Complaint and Answers Defendants also object to Plaintiff's Exhibits B, D, and E, which are Plaintiff's second amended complaint, the HGI Defendants' answer and GTFM's answer, respectively. Defendants state, "These documents are pleadings and not evidence sufficient to support a motion for summary judgment." However, Defendants fail to realize that the Court considers the pleadings, as well as other documents -3Document 345

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submitted with the Motion for Summary Judgment and contained in the record, when rendering its judgment. Specifically, Rule 56(c) states: "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c). Therefore, it is of no consequence whether Plaintiff attached the pleadings as exhibits to his motion for summary judgment, as the Court already takes the pleadings, and statements contained therein, under consideration when rendering a decision on a motion for summary judgment. Since the Court will already be considering the statements contained in Plaintiff's Second Amended Complaint, HGI's Answer, and GTFM's answer, it was proper for Plaintiff's to recite those statements in his Statement of Facts. Dispute as Unsupported by the Record Citation. Nearly every dispute of Plaintiff's Statement of Facts is because Defendants allege that Plaintiff's statements are unsupported by the record citation. Rather than responding to every objection made on that basis, Plaintiff will simply state that the record speaks for itself and will rely on the record citations made in his Statement of Facts. Furthermore, Plaintiff would like to point out to the Court that although Defendants dispute many of Plaintiff's statement of facts as `unsupported by the record citation', on several occasions Defendants follow up that statement by stating that the dispute is immaterial. For example, see RLSOF ¶ 11-12, 21, 29, 33, 37, 40-41, 46, 49, 59-60, 68, 84, etc.

RESPECTFULLY SUBMITTED this

15th

day of December 2005.

By:

/s/ Anders Rosenquist ROSENQUIST & ASSOCIATES Filed 12/16/2005 Page 4 of 7

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Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. , 2005, a true and correct copy of the foregoing 2. I hereby certify that on December 15th PLAINTIFF MEADOWLARK LEMON'S REPLY TO DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S RESPONSE TO PLAINTIFF LEMON'S STATEMENT OF FACTS was sent by postage-prepaid first-class mail, addressed to: Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants FUBU the Collection, LLC, GTFM of Orlando, LLC and GTFM, LLC Clay Townsend, Esq. Morgan, Colling & Gilbert, PA 20 N. Orange Avenue 16th Floor Orlando, FL 32802 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260 -6Document 345

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Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 15th day of December 2005, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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