Free Reply to Response to Motion - 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 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 TO DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S RESPONSE TO PLAINTIFF LEMON'S MOTION FOR SUMMARY JUDGMENT Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant. Plaintiff, Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, respectfully submits his Reply to Defendants Harlem Globetrotters International, Inc. (hereinafter "HGI"), Harlem Globetrotters International Foundation (hereinafter "the Foundation"), and Mannie L. & Catherine Jackson's (collectively as "Defendants") Response to Plaintiff Lemon's Motion for Summary Judgment. Based upon the undisputed facts in this case, Plaintiff is entitled to summary judgment on all claims

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enumerated in the Complaint. This Reply is submitted in further support of Plaintiff's Motion for Summary Judgment, Doc. 197, and Plaintiff's Statement of Facts filed with his Motion for Summary Judgment ("SOF"), Doc. 206. Plaintiff also submits simultaneously herewith his Reply to Defendants' Response to Plaintiff Lemon's Statement of Facts, and his Reply to Defendants' Additional Statement of Facts in Response to Plaintiffs' Motions for Summary Judgment, which are incorporated herein by reference. MEMORANDUM OF POINTS AND AUTHORITIES For the Court's convenience, rather than reiterate the facts that have already been so extensively set forth in the various motions for summary judgment and responses thereto, Plaintiff will rely on his Statement of Facts ("SOF") filed with his Motion for Summary Judgment, Doc. 206, as well as his Reply to Defendants' Response to Plaintiff's Statement of Facts and his Reply to Defendants' Additional Statement of Facts filed herewith. Plaintiff would also like to refer the Court to his

Statement of Contraverting Facts ("HGI SOCF"), Doc.283, submitted in Response to the HGI Defendants' Motion for Summary Judgment. Plaintiff would first like to reply to Defendants' assertions that several of Plaintiff's facts in Plaintiff's SOF are supported by unauthenticated documents or unsupported by the record citation. (Defendant's Response at 1). First, Defendants argue that Lemon's contention that the Globetrotters FUBU apparel attached hangtags bearing Plaintiff's name, is unsupported by the record citation. However, Plaintiff asserts that Plaintiff's record citation does support Plaintiff's contention that the hang tags were used as marketing tools, and that contention is supported by Mr. Blenden's bold statement that "we added it [the hangtag] as a piece of whatever, Harlem Globetrotters, you can call it history or information, so that the consumer knew a little bit more of the product and about the organization that was--merchandise on that product when they bought it." (SOF, Doc. 206, ¶ 27). Furthermore,

Plaintiff's contention is supported by the fact that the copies of the hangtags were obtained by Plaintiffs by simply purchasing an item of the FUBU Globetrotters apparel from a retail store. Second,

Defendants argue that Plaintiff's assertion that the clothing bearing Plaintiff Lemon's name was the highest selling of all players, is also not supported by the record. However, Defendants admit that Plaintiff's citation is to Mr. Jackson's deposition in which he states that the apparel bearing Plaintiff's name "sold very well" and was among the highest selling of the group. Furthermore, Defendants' Case 2:04-cv-00299-DGC -2Document 324 Filed 12/15/2005 Page 2 of 14

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themselves state that their dispute with Plaintiff's assertion "is immaterial." Third, Plaintiff's contention that he has never signed a contract with the Globetrotters permitting them to use his name and likeness in perpetuity is directly supported by Plaintiff's affidavit, which is based on his personal knowledge and plain reading of his contract. (SOF, Doc. 206, ¶ 4). Although Defendant's assert that Plaintiff's statement is a conclusion of law, Plaintiff's statement is based on his reading the contract, which plainly sets forth the parameters under which Defendants were permitted to use Plaintiff's name and likeness, and requires no knowledge of legal principles. Lastly, it is appalling that Defendants dispute Plaintiff's celebrity status when Defendants themselves chose to use Plaintiff's name and likeness on the apparel, instead of using Mannie Jackson's name or any other out of the hundreds of former Globetrotter players. That is not a coincidence, and Defendants contentions that Plaintiff is not a celebrity defies the logic regarding why Defendants chose to use Plaintiff's name over any other former player. Defendants are well aware that they chose just a handful of names out of hundreds because of the celebrity status enjoyed by those few former players. Plaintiff has been inducted into the Basketball Hall of Fame, and has provided ample evidence to support his contention that he has obtained celebrity status including evidence that Defendants themselves have admitted to Plaintiff's celebrity status. (SOF, Doc. 206, ¶ 6972). Plaintiff's SOF, along with Plaintiff's Statement of Contraverting Facts submitted with Plaintiff's Response to the HGI Defendants' Motion for Summary Judgment, set forth ample admissible evidence which prove that Plaintiff is entitled to summary judgment. I. PLAINTIFF HAS STATED A CLAIM AGAINST THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC. AND MANNIE & CATHERINE JACKSON. Plaintiff has established the Harlem Globetrotters International Foundation, Inc. and Mannie and Catherine Jackson's liability in his Response to the HGI Defendants' Motion for Summary Judgment, Doc. 282. For the sake of brevity and the Court's convenience, Plaintiff will refer the Court to that Response at pages 2-5 and to Plaintiff's Statement of Contraverting Facts ("HGI SOCF"), Doc. 283, filed therewith. However, Plaintiff would like to set forth for the Court several important points regarding why the Harlem Globetrotters International Foundation, Inc. and Mannie and Catherine Jackson are proper parties and are liable to Plaintiff in this lawsuit. A. Mannie Jackson. Case 2:04-cv-00299-DGC -3Document 324 Filed 12/15/2005 Page 3 of 14

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When an `employee' receives a benefit from the infringement such as royalties based on the revenues or profits from the infringing goods, instead of just receiving a salary, that `employee' is severally liable for any profits earned in connection with the infringing activity. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir. 1989) (employee would be held severally liable if he received profits he himself earned in connection with the copyright infringement). Mannie Jackson profited individually from the licensing agreement: he was the sole shareholder of HGI prior to the recent sale and he made a profit of approximately $70 million from the sale of the Globetrotters (HGI SOCF, Doc. 283, ¶105, 188). Therefore, he is severally liable for any profits he earned in connection with the infringing activity. Furthermore, GTFM relied on Jackson's personal representations when deciding to enter into the licensing agreement and to not perform any due diligence as to HGI's authority to license Plaintiff's name and likeness. (HGI SOCF, Doc. 283, ¶ 183) and Jackson himself made the decision to place merchandise revenue in the Foundation (HGI SOCF, Doc. 283, ¶ 187). Plaintiff's Complaint alleges that Mannie Jackson is directly liable and Plaintiff seeks to disgorge any royalties or revenues received by Mr. Jackson as a result of the trademark infringement. Mannie Jackson did MUCH MORE than just `exercise that control which stock ownership gives to the stockholders.' Therefore, Mannie Jackson is a proper party to this litigation and is liable to Plaintiff for damages. Lastly, Mannie Jackson is a proper party as Plaintiff's defamation claim goes directly to the actions and defamatory remarks made by Mr. Jackson personally. B. Catherine Jackson. Catherine Jackson is also a proper party to this litigation and is liable to Plaintiff for damages. Community property is liable for the intentional and negligent torts of either spouse occurring while that spouse is acting for a community purpose or on behalf of the community. See McFadden v. Watson, 51 Ariz. 110, 74 P.2d 1181 (1938) (when a husband in his business made a false charge against an employee, the community was responsible for the defamation); See DePinto v. Provident Sec. Life Ins. Co., 374 F.2d 50 (9th Cir. 1967) (community was liable for husband's negligence as corporate director). A.R.S. §25-215 (D) provides that in an action on a debt obligation incurred for the benefit of the community the spouses shall be sued jointly. This provision has been broadly construed to cover tort liability. Villescas v. Arizona Copper Co., 20 Ariz 268, 129 P. 963 (1919).

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Existing law supports a reasonable legal basis for Ms. Jackson being a party in this lawsuit if, for no other reason than her status as the spouse of Mannie Jackson, the sole owner and alter ego of the Defendant corporations, and because of the community property laws of the State of Arizona. Also, investigation and discovery by Plaintiff revealed that even if Ms. Jackson may not have participated directly in Mr. Jackson's actions (which include entering the HGI/GTFM licensing agreement and exploiting Plaintiff's name and likeness without authority) she has received under Arizona law benefits that Mr. Jackson derived from the commercial exploitation of Plaintiff's rights of publicity. The recent events involving Mr. Jackson's paying himself a personal dividend of over $9 million, and the sale of 80% of HGI's assets for $70 million, combined with the changes in ownership and governance of Defendants' corporations further support the reasonableness of and evidentiary support for Plaintiff's refusal to dismiss Ms. Jackson. (HGI SOCF ¶, Doc. 283, 105, 188). C. The Foundation. Mannie Jackson, and his long time employees, Lenihan and Syracuse, control the Foundation. (HGI SOCF, Doc. 283, ¶ 189). None of the Defendants seem to kwon what the Foundation's purpose is, including longtime alumni director, Governor Vaughn, or Coach Lou Dunbar: "I'm not quite sure exactly what it does," --or who it has helped: "none that I know of." (HGI SOCF, Doc. 283, ¶ 190). However, Ms. Jackson's charity, Arizona Foundation for Women, was paid $4,500.00 from the Foundation in 2002 and 2003 according to Foundation cash disbursement report filed with the State of Arizona. (HGI SOCF, Doc. 283, ¶ 192). The Foundation clearly was the recipient of revenues directly attributable to the sale of HGI/GTFM clothes bearing Plaintiff's name and likeness. (HGI SOCF, Doc. 283, ¶ 193). Yet, none of the Plaintiffs, including Mr. Lemon, has any idea what the Foundation does with the money it makes off of their names and likenesses. (HGI SOCF, Doc. 283, ¶ 194). Public records reveal a list of numerous (presumably happy) recipients of the Foundation's generosity (earned from Plaintiffs' names) yet not one payment to any needy former player. (HGI SOCF, Doc. 283, ¶ 195). Mannie Jackson could not name a single former Globetrotter player helped by the Foundation. (HGI SOCF, Doc. 283, ¶ 196). The Foundation has controlled millions of dollars at the sole discretion of Mannie Jackson. (HGI SOCF, Doc. 283, ¶ 197). Pursuant to the above facts, it is clear that the Foundation is a proper party to this

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litigation because a portion of the royalties earned from the infringing activity were directly paid to the Foundation. II. PLAINTIFF'S LANHAM ACT CLAIM DOES NOT LACK MERIT.. A. Plaintiff Has Established the Element of `Secondary Meaning' and Therefore Plaintiff's Name and Number is a Protectable Mark. Secondary meaning is the consumer's association of the mark with a particular source or sponsor. E. & J. Gallo Winery v. Gallo Cattle Company, 967 F.2d 1280, 1291 (9th Cir. 1992)). It is clear that Defendants use of Plaintiff's name and player number would cause the consumer to associate the clothing with Plaintiff as the source and/or sponsor. (HGI SOCF, Doc. 283, ¶ 113, 127-129, 131, 138, 141-145). Plaintiff is the only person named Meadowlark Lemon that has ever played for the Globetrotters and therefore there is no other "Lemon" that consumers could possibly associate the `mark' with as the source or sponsor. Plaintiff was inducted into the Basketball Hall of Fame and his player number was retired so no other Globetrotter player will wear number thirty-six. (HGI SOCF, Doc. 283, ¶ 137, 157). Plaintiff is the only Globetrotter player to have worn number thirty-six and since that number has been retired it will forever be associated with Plaintiff. (HGI SOCF, Doc. 283, ¶ 77-79, 139-140, 157). Plaintiff is a well-known celebrity, has used his name to promote his ministries and charities and his own basketball team, and currently licenses his name for other endorsement deals. (HGI SOCF, Doc. 283, ¶ 137, 141-145, 147). Because consumers associate Plaintiff's name and player number (the `mark') with Plaintiff as the source/sponsor, Plaintiff has proven the element of secondary meaning. E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1291 (9th Cir. 1992). Furthermore, every Defendant that gave a deposition in this case gave testimony that Plaintiff is a celebrity because he is the most popular Globetrotters player. (SOF, Doc. 283, ¶ 69-72). Are

Defendants claiming that even though every Defendant deposed in this action identified Plaintiff as the most popular player, those statement have no evidentiary value? Again, it is appalling that Defendants dispute Plaintiff's celebrity status when Defendants themselves chose to use Plaintiff's name and likeness on the apparel, instead of using Mannie Jackson's name or any other out of the hundreds of former Globetrotter players. That is not a coincidence, and Defendants contentions that Plaintiff is not a celebrity defies the logic regarding why Defendants chose to use Plaintiff's name over any other former

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player. Defendants are well aware that they chose just a handful of names out of hundreds because of the celebrity status enjoyed by those few former players. B. Plaintiff Has Demonstrated a Likelihood of Consumer Confusion. Defendants assert that Plaintiff misstated the likelihood of confusion test, stating that Plaintiff used a five-factor test when Defendants argue that there are actually eight factors. (Defendants' Response at 5). Defendants cite White v. Samsung, 971 F.2d 1395 (9th Cir. 1992), to support their proposition, and go on to state that New West, the case cited by Plaintiff, sets forth the incorrect likelihood of confusion test. However, White v. Samsung actually concludes the exact opposite to Defendants' argument, and states, "this circuit recognizes several different multi-factor tests for determining whether a likelihood of confusion exists." White, 971 F.2d at 1400 (emphasis added). The court goes on in White to support that proposition by citing to cases in which the courts have used a six-factor test and an eight-factor test, and yes, the court even cites New West (relied on by Plaintiff) as setting forth a proper test for likelihood of confusion. Id. None of those tests is correct to the exclusion of the others. Id. There is no indication that the cases applying five or six factors were intended to undermine other cases that enumerated eight factors, or vice versa. Ecplise Assoc., Ltd. v. Data General Corp., 894 F. 2d 1114, 1118 (9th Cir. 1990). "The Ninth Circuit enumerated likelihood of confusion tests as helpful guidelines to the district court." Id. "These tests were not meant to be requirements or hoops that a district court need jump through to make the determination." Id. The Ninth Circuit has never articulated specific factors that a district court must recite and apply, instead, they have identified a non-exclusive series of factors that are helpful in making the ultimate factual determination. Id. Defendants' assertion that Plaintiff misstated the likelihood of confusion test in his Motion for Summary Judgment is flat wrong, and Defendants needed only to read the rest of the court's decision in White v. Samsung to see that, rather than merely extrapolating those portions of the case that were favorable to them. Therefore, Plaintiff sets forth a valid test for the Court to determine likelihood of confusion in this case, and Plaintiff's argument and facts set forth in Plaintiff's Motion for Summary Judgment establish that Plaintiff has met this factor and is entitled to summary judgment on his Lanham Act claim. C. Plaintiff is Entitled to Damages.

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In their Response, Defendants' state that "Plaintiff has not shown he was injured by the Apparel or would be entitled to damages even if he prevailed on his Lanham Act claim." (Defendants' Response at 8). However, Defendant does not make any argument or cite any law, and instead refers the Court to their Motion for Summary Judgment at pages 16-19. Therefore, in the same interests of brevity, for his reply, Plaintiff will refer the Court to his Response to the HGI Defendants' Motion for Summary Judgment, Doc. 282, at pages 10-13. Plaintiff would further like to state that it is insulting that Defendants made millions of dollars from the use of all Plaintiffs names, and yet they continue to assert that Plaintiff has no damages. D. Affirmative Defenses Do Not Preclude Summary Judgment and Plaintiff's Lanham Act Claims Are Neither Barred by Estoppel/License Nor Laches. Defendants again rely on argument set forth in their Motion for Summary Judgment to advance their claim that the affirmative defenses of estoppel/license and laches preclude summary judgment in favor of Plaintiff. Therefore, for his reply, Plaintiff would again like to point the Court to his Response to the HGI Defendants Motion for Summary Judgment, Doc. 282, at pages 7-10. Additionally, Defendants continue to argue that simply because Plaintiff signed a player contract with Defendants, that gave them the right to use Plaintiff's name and likeness in perpetuity. This statement causes Plaintiff to wonder if Defendants have ever read Plaintiff's 1975 player contract. Defendants fail to point out to the Court that Plaintiff's 1975 Contract only gave the Harlem Globetrotters the right to use Plaintiff's name, likeness, and player number to the extent they are put to the same uses as they were put prior to the termination of the contract. (SOF, Doc. 206, ¶ 13). Although Defendants argue that they have used Plaintiff's name in the past for a variety of promotional purposes including programs, posters, iron-ons, television programs, etc., Defendants never include in that list that they used Plaintiff's name on clothing sold for commercial profit. (Defendants Response at p. 10). Therefore, under the plain terms of Plaintiff's old player contract, Defendants use of Plaintiff's name on the Globetrotter FUBU apparel is a clear violation of the terms of the contract because Defendants never before used Plaintiff's name in that manner. III. PLAINTIFF'S RIGHT OF PUBLICITY WAS VIOLATED. First, as Plaintiff stated in Section II.D, supra, Plaintiff's claims are not barred by estoppel/license or laches, and Plaintiff did not give Defendants the right to use his name and likeness in -8Document 324 Therefore, Defendants affirmative defenses fail and do not preclude summary judgment in Plaintiff's favor.

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perpetuity. Again, Defendants never state that they used Plaintiff's name on clothing during the term of Plaintiff's player contract, other than on the player jersey Plaintiff wore during games, and therefore Defendants admit that they have never before offered apparel for sale that has contained Plaintiff's name and likeness. (Defendants Response at 10). That admission makes it clear that the current use of Plaintiff's name on the Globetrotters FUBU apparel is a violation of Plaintiff's player contract. Defendants assertion that since they used Plaintiff's name on his player jersey they acquired the right to use his name on a commercial line of clothing is illogical. That would mean all players everywhere who wear a uniform displaying their name would lose his/her rights to the team that person is currently playing for forever, an absolutely unconscionable conclusion. Plaintiff has demonstrated that he satisfies all of the elements of a right of publicity claim and therefore is entitled to summary judgment. First, Defendants used Plaintiff's identity by emblazoning Plaintiff's name and likeness across clothing that was manufactured and sold by the company. (HGI SOCF, Doc. 283, ¶ 141). Also, Defendants clearly profited from the sale of clothing bearing Plaintiff's name and/or number. (HGI SOCF, Doc. 283, ¶ 150-155). As stated many times previously, Defendants did not have the right to use Plaintiff's name and likeness in the Globetrotters FUBU clothing line under Plaintiff's old contract. (HGI SOCF, Doc. 283, ¶ 168). Further, Defendants never contacted Plaintiff directly to get his consent to use his name and likeness on the clothing. However, Mannie Jackson continued to insist that he had the right to use all former players' names and likenesses in perpetuity, pursuant to some (nonexistent) `standard player contract.' (HGI SOCF, Doc. 283, ¶ 169). Additionally, Plaintiff has been injured by Defendants' use of his name and likeness. Defendants kept all profits that Plaintiff would have been entitled to. (HGI SOCF, Doc. 283, ¶ 147, 168, 171-172). Additionally, by entering into the licensing agreement, Defendants effectively took away Plaintiff's right to choose to endorse another product through his celebrity status, as Plaintiff is currently involved in licensing his name and likeness to endorse other products. (HGI SOCF, Doc. 283, ¶ 147). Plaintiff is still involved in the sports community through his ministries and charities, and produces his own products containing his name which Defendants directly competed with. (HGI SOCF, Doc. 283, ¶ 147148). IV. DEFENDANTS WERE UNJUSTLY ENRICHED. Defendants argue that Plaintiff failed to establish a claim of unjust enrichment, however, Defendants again fail to address Plaintiff's facts or make any legal argument, and instead cite one case -9Document 324

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that sets forth elements for unjust enrichment. Therefore, Plaintiff has nothing to reply to except to state that the law, facts and argument set forth by Plaintiff in his Motion for Summary Judgment, Doc. 197, demonstrate that Plaintiff is entitled to summary judgment on this claim. V. PLAINTIFF'S FALSE LIGHT INVASION OF PRIVACY CLAIM DOES NOT LACK MERIT. As Plaintiff correctly stated in his Motion for Summary Judgment, a false light cause of action can arise either when something untrue has been published about the individual or when the publication of true information creates a false implication about the individual. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 783 P.2d 781 (1989) (emphasis added). Although Defendants argue that not all false implications created by true facts are actionable, Plaintiff will rely on the facts and argument raised in his Motion for Summary Judgment as proof that this case is one in which the false implications created by Defendants are actionable, rather than waste the Court's time by reiterating his argument here. Further, Defendants state that Plaintiff has made no showing that Defendants acted with reckless disregard. However, as Plaintiff has extensively demonstrated in his Motion for Summary Judgment, this Reply, and in his Response to Defendants' Motion for Summary Judgment, it is clear on the face of Plaintiff's old player contract that Defendants did not have the authority to use Plaintiff's name and likeness as they did on the Globetrotters FUBU apparel. Had Defendants simply pulled out Plaintiff's player contract and read it before Mr. Jackson made his several false assertions to GTFM that he had the authority to use Plaintiff's name and likeness on the clothing line, this litigation could have been completely avoided. VII. Therefore, Plaintiff has demonstrated, on several different occasions, that Defendants acted with reckless disregard. PLAINTIFF LEMON HAS BEEN DEFAMED. During discovery Plaintiff has repeatedly disclosed documents and told Defendants which statements made by Defendants went directly to the defamation claim. (HGI SOCF, Doc. 283, ¶ 133, 173-174, 177). Additionally, Plaintiff has set forth sufficient evidentiary support to show that Plaintiff has been defamed as a matter of law and therefore, is entitled to summary judgment on this claim. Plaintiff is not attempting to raise any new claims on summary judgment, and has asserted his defamation claim throughout this litigation. Plaintiff has repeatedly disclosed documents to Defendants to support his defamation claim. All of the documents disclosed by Plaintiff are evidence -10Document 324 Filed 12/15/2005

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of the defamation claim, and Plaintiff need not assert a separate defamation claim for each statement made by Mr. Jackson. Not only has Plaintiff disclosed the Arizona Republic Article to Defendants on several occasion, Plaintiff has also repeatedly disclosed information about the book Spinning the Globe, and the defamatory statements made by Mr. Jackson in connection therewith. Both the newspaper article and book have been published, despite Defendants assertions that "Mr. Lemon does not show or even allege that they were published." Plaintiff has produced ample instances of Mr. Jacksons defamatory statements. For example, in Plaintiff's Response to the HGI Defendants' Motion for Summary Judgment, Plaintiff gave evidence that in the book "Spinning the Globe: The Rise, Fall, and Return to Greatness of the Harlem Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff, and told lies about the Plaintiffs and other Globetrotter players, and made false implications about Plaintiff. (HGI SOCF, Doc. 283, ¶ 173174). Also, in press interviews for the book, Mannie Jackson made defamatory statements about Plaintiff. (HGI SOCF, Doc. 283, ¶ 174). Furthermore, although Plaintiff argues that Mr. Jackson's defamatory statements benefited his community, Defendants fail to respond to Plaintiff's legal position and instead state that Plaintiff's "claim is too absurd to warrant response." However, if Defendants actually had found a case that supported their position or opposed Plaintiff's argument, I am sure they would have cited it and set forth proper legal argument. VIII. PLAINTIFF IS ENTITLED TO SUMMARY COUNTERCLAIM AGAINST PLAINTIFF. JUDGMENT ON HGI'S

Defendants stated that they would consent to a dismissal of their counterclaims against Plaintiff, on the merits and without prejudice. However, Defendants should have dropped this counterclaim long ago and should immediately file for dismissal rather than continuing to pursue the claim. However, since Defendants have failed to file for dismissal of their counterclaims against Plaintiff as of this date, Plaintiff must continue to assert that he is entitled to summary judgment on this claim as set forth in his Motion for Summary Judgment. IX. CONCLUSION Plaintiff has demonstrated that he will prevail on his claims as a matter of law and therefore he is entitled to summary judgment against Defendants.

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RESPECTFULLY SUBMITTED this 15th

day of December 2005.

ROSENQUIST & ASSOCIATES

By:

/s/Anders Rosenquist 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. 2. I hereby certify that on December 15th , 2005, a true and correct copy of the foregoing 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 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 -13Document 324 Filed 12/15/2005

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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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