Free Memorandum - District Court of Arizona - Arizona

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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 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

MEMORANDUM IN SUPPORT OF MOTION TO STRIKE PORTIONS OF THE NEAL PLAINTIFFS' REPLY TO GTFM, LLC'S OPPOSITION TO THE NEAL PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Case 2:04-cv-00299-DGC

Document 321

Filed 12/14/2005

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MEMORANDUM IN SUPPORT OF MOTION TO STRIKE PORTIONS OF THE NEAL PLAINTIFFS' REPLY TO GTFM, LLC'S OPPOSITION TO THE NEAL PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Defendants FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store ("GTFM of Orlando")(collectively referred to as the "FUBU Defendants") submit this memorandum in support of their motion to strike portions of plaintiffs Fred "Curly" Neal ("Neal"), Marques Haynes ("Haynes"), Robert "Showboat" Hall ("Hall"), Larry "Gator" Rivers ("Rivers"), Dallas "Big D" Thornton ("Thornton") and James "Twiggy" Sanders' ("Sanders") (collectively, the "Neal Plaintiffs") reply to GTFM LLC's Opposition to their Motion for Summary Judgment ("Reply"). On October 28, 2005, the Neal Plaintiffs filed a motion for summary judgment against GTFM, LLC (the "Motion"). GTFM, LLC properly opposed the Motion. Separately, FUBU The Collection, LLC and GTFM of Orlando renewed their motion for

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summary judgment on October 24, 2005. Plaintiffs opposed that motion and also had previously moved this Court to voluntarily dismiss FUBU The Collection, LLC and GTFM of Orlando, without prejudice. FUBU The Collection, LLC and GTFM of Orlando submitted their reply in support of their renewed motion for summary judgment on December 8, 2005. Thus, that motion was fully submitted. Thereafter, on December 13, 2005, the Neal Plaintiffs filed their Reply in support of their Although that pleading is entitled

"Plaintiffs Neal, Rivers, Thornton, Hall, Haynes and Sanders' Reply to Defendant GTFM LLC's Response to Motion for Summary Judgment," it is improperly directed toward all of the FUBU Defendants, including FUBU The Collection, LLC and GTFM of Orlando. Specifically, Point I of the Reply is entitled "Summary Judgment As To All Parties" and argues that the Neal Plaintiffs' Motion should be granted against all of the FUBU Defendants.

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To the extent the Neal Plaintiffs' Reply relates to FUBU The Collection, LLC and GTFM of Orlando, it is an improper surreply in opposition to the renewed motion of FUBU The Collection, LLC and GTFM of Orlando for summary judgment and all portions relating to GTFM of Orlando and FUBU The Collection, LLC should be stricken. If the Neal Plaintiffs wanted to move for summary judgment against FUBU The Collection, LLC and GTFM of Orlando, they should have done so in their original moving papers, not in their reply papers. The last date for filing dispositive motions was October 28, 2005 and the Neal Plaintiffs cannot decide almost two months later ­ on December 13, 2005 ­ that they want to add additional parties to their summary judgment motion. CONCLUSION For all of the foregoing reasons the FUBU Defendants respectfully submit that this Court strike all portions of the Neal Plaintiffs' Reply which relate to GTFM of Orlando and/or FUBU

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the Collection, LLC. Dated: December 14, 2005 New York, New York ____/s/ Ira S. Sacks___________ 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] (Pro Hac Vice) Joel L. Herz, Esq. State Bar Number 015105 La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, Arizona 85718-3206 Telephone: 520-529-8080 Facsimile: 520-529-8077 [email protected]

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Attorneys for Defendants FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store

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Case 2:04-cv-00299-DGC

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