Free Reply - 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

MEADOWLARK LEMON, a married man, Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE COLLECTION, LLC, a New York limited liability company doing business in Arizona; GTFM, LLC, a New York limited liability company doing business in Arizona; Defendants.

PLAINTIFF MEADOWLARK LEMON'S REPLY/OBJECTION TO DECLARATION OF IRA S. SACKS IN OPPOSITION TO MEADOWLARK LEMON'S MOTION FOR SUMMARY JUDGMENT

HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant.

Case 2:04-cv-00299-DGC

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In response to Plaintiff's Motion for Summary Judgment, Ira S. Sacks, defense counsel for Defendants GTFM, LLC and FUBU the Collection, LLC, submitted a declaration in which Mr. Sacks set forth several statements which he purported to be `facts' to which Defendants cited as support for their objections to Plaintiff's Statement of Facts and Further Statement of Facts. However, defense counsel's continued use of declarations as a vehicle to make legal argument, state his opinions, and make side remarks about Plaintiff and his views of the evidence in this case is improper. For example, defense counsel states "Lemon also relies on the rank hearsay of his Second Amended Complaint" (¶ 11); "alleged infringement of Lemon's image and/or likeness is not at issue in this case and that portion of his claims should be dismissed" (¶ 6); "Lemon has not submitted any evidence to demonstrate that the Alleged Infringing Goods placed him in a false light that would be highly offensive to a reasonable person" (¶ 13). Defense counsel is not the trier of fact in this case, and his legal conclusions regarding what he believes the evidence may show in this case are only proper for his Memorandums of Law, and are completely improper in declarations to which Defendants cite as `fact.' It is clear that defense counsel is attempting to use his Declarations as if they were affidavits by which he could support his claims for summary judgment. However, no where in Rule 56 of the Federal Rules of Civil Procedure does it state that attorney declarations are proper evidence in support of a motion for, or in opposition to, summary judgment. Disposition of a case is not furthered by counsel being a personal vehicle by which "undisputed" facts are put before the court; it is an unnatural, if not virtually impossible, task for counsel in his own case to drop his garments of advocacy and take on the somber garb of an objective fact-stater. Inglett & Co. v. Everglades Fertilizer Co., 255 F.2d 342, 349 (5th Cir. 1958). An attorney's affidavit made on information and belief does not meet the requirements of Rule 56(e), Fed.R.Civ.P. Automatic Radio Mfg. Co. v. Hazletine Research, Inc., 339 U.S. 827, (1950), rev'd in part on other grounds, Lear, Inc. v. -2Document 331

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Adkins, 395 U.S 653 (1969). Furthermore, an affidavit by counsel for one of the parties, in opposition to a motion for summary judgment, reciting what he proposed to prove at trial does not meet the requirements of the rule. United States v. Newbury Mfg. Co., 1 F.R.D. 718 (D.C. Mass. 1941). If the affidavit states only conclusions, and not such facts as would be admissible in evidence, then it would be too conclusory to be cognizable. United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). Defense counsel's declarations serve only as personal vehicles by which defense counsel puts his legal suppositions before this Court. Furthermore, defense counsel's statements would not be

admissible in evidence at trial since he cannot be called to testify. Inadmissible evidence may not be considered by the court in deciding motions for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993). Therefore, Plaintiff objects to defense counsel's declaration and respectfully requests this court ignore the statements contained therein when ruling upon Plaintiff's Motion for Summary Judgment.

DATED this

15th day of December 2005. ROSENQUIST & ASSOCIATES

By:

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

Case 2:04-cv-00299-DGC

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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. 2. I hereby certify that on December 15th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S REPLY/OBJECTION TO DECLARATION OF IRA S. SACKS IN OPPOSITION TO MEADOWLARK LEMON'S MOTION FOR SUMMARY JUDGMENT 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 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders -4Document 331

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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 Case 2:04-cv-00299-DGC -5Document 331 Filed 12/15/2005 Page 5 of 5 /s/Florence M. Bruemmer Florence M. Bruemmer 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.