Free Response in Opposition to Motion - 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 25 26

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 RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., AND MANNIE L. JACKSON & CATHERINE JACKSON'S MOTION TO STRIKE AFFIDAVIT OF EDWIN JAMES MUTUM.

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

Case 2:04-cv-00299-DGC

Document 317

Filed 12/13/2005

Page 1 of 8

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

Plaintiff, Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his response to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., and Mannie L. Jackson & Catherine Jackson's (hereinafter "Defendants") Motion to Strike Affidavit of Edwin James Mutum for Failure to Disclose Pursuant to Fed.R.Civ.P. 37(c)(1). Plaintiff respectfully requests that Defendants' Motion to Strike be denied for the following reasons. I. DEFENDANTS' MOTION TO STRIKE IS IMPROPER. First, Defendants' Motion to Strike Affidavit of Edwin James Mutum is improper because the Affidavit of Edwin James Mutum is not a pleading. Defendants needed only to consult the Federal Rules of Civil Procedure to discover that Motions to Strike are only applicable to pleadings. Rule 12(f) of the Federal Rules of Civil Procedure sets forth when a Motion to Strike is proper. Rule 12(f) states: "Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (emphasis added). Furthermore, Rule 7(a) of the Federal Rules of Civil Procedure strictly defines a pleading as "a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served." Rule 7(a) explicitly excludes everything else from its definition of a pleading. Fed.R.Civ.P. 7(a); See Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995). Under the express language of the rule, only pleadings are subject to motions to strike. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983); Coronel v. Paul, 316 F.Supp.2d 868, 873 (D. Ariz. 2004) (noting that rule 12(f) has no applicability to papers that are not pleadings); Knight v. United States, 845 F.Supp. 1372, 1374 (D. Ariz. -2Document 317

Case 2:04-cv-00299-DGC

Filed 12/13/2005

Page 2 of 8

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

1993); Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997) (noting that Rule 12(f) has no applicability to motions made in pursuit of or in opposition to summary judgment). Defendants have cited no cases that have construed Rule 12(f) as allowing a district court to strike material not contained in the pleadings of the case. To the contrary, many courts have found that although Rule 12(f) provides for a motion to strike certain matters from pleadings, it does not make provision for testing the legal sufficiency of affidavits by a motion to strike. Virtle Wimberly v. Clark Controller Co., 364 F.2d 225, 227 (6th Cir. 1966). For the purposes of a motion to strike, a statement of facts and affidavits in support of a motion for summary judgment do not constitute pleadings. EEOC v. Admiral Maintenance Serv., L.P., 174 F.R.D. 643, 646 (N.D. Ill. 1997) (emphasis added). Therefore, it is inappropriate to use a motion to strike for the advancement of objections to an affidavit filed in support of or in opposition to a motion for summary judgment. Smith v. Southeastern Stages, Inc., 479 F.Supp. 593, 595 (N.D. Ga. 1977). The Affidavit of Edwin James Mutum, which was filed by Plaintiff as an exhibit to his Motion for Summary Judgment, is not a pleading and therefore is not subject to a motion to strike. Because the affidavit is not a pleading, Defendants' Motion to Strike is improper and should be denied. II. ANY ALLEGED FAILURE TO DISCLOSE IS HARMLESS. Even though Defendants' Motion to Strike is not proper, Plaintiff addresses the merits of Defendants argument. Defendants argue the Affidavit of Edwin James Mutum should be `stricken' pursuant to Rule (37)(c)(1) of the Federal Rules of Civil Procedure because Plaintiff failed to disclose the information in the Affidavit and failed to disclose Mr. Mutum as a witness. However, any failure to disclose Mr. Mutum's affidavit is harmless and therefore Defendants' Motion should be denied. Rule 37(c)(1) states that witnesses and evidence may be excluded only if a party who "without substantial

Case 2:04-cv-00299-DGC

-3Document 317

Filed 12/13/2005

Page 3 of 8

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

justification fails to disclose information required by Rule 26(a) or 26(e)(1)..., unless such failure is harmless..." (emphasis added). First, Defendants already possessed the information contained in Mr. Mutum's affidavit. (See Affidavit, attached as Exhibit "A"). Mr. Mutum begins by stating that he was the road manager for the Harlem Globetrotters from late 1977 through 1979, and as road manager he appeared at all games played in the United States and Europe and was present at all training camps. (Exhibit "A" ¶ 3-4). Defendants know who has worked for them in the past, and therefore would already have this information. Mr. Mutum further states that "At no time between October 15, 1975 through October 14, 1980 did I see or become aware of any clothing, especially sports ware, being sold with the individual player names on them." (Exhibit "A" at ¶ 5). Mr. Mutum then states that "T-Shirts, with the name Harlem Globetrotters on them, were the only clothing I saw sold, and this was at the games. The TShirts never had a player's name on them." (Exhibit "B" at ¶ 6). Defendants also had that information, i.e., that Defendants have never before licensed Plaintiff's name and likeness for use on clothing. The Defendants certainly have prior knowledge regarding what they have and have not done. Mr. Mutum's statements in his affidavit was only used by Plaintiff to verify what Defendants have asserted throughout this litigation ­ that they have never before licensed Plaintiff's name and likeness for a clothing line. Therefore, Defendants motion to strike Mr. Mutum's Affidavit is absurd, unless through such a Motion Defendants are disputing the statements in Mr. Mutum's Affidavit, thereby implying that they have entered into other licensing agreements to use Plaintiff's name and likeness on clothing. However, that would be directly contrary to statements made by the Defendants themselves in the past. For example, at Mannie Jackson's deposition, he testified as follows: Q: Were--are clothing sold--since you have been running HGI, is clothing sold at the games?

Case 2:04-cv-00299-DGC

-4Document 317

Filed 12/13/2005

Page 4 of 8

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

A: Q: A: Q: A: Q: A: Q: A:

Yes. Is it Fubu clothing or is it clothing that is non Fubu? Non Fubu. Okay. An what kind of clothing is it? T-shirts, jackets. Okay. Are any former players' names on the clothing and jackets sold at the games? You mean the plaintiffs? Yes. Any of the plaintiffs? No.

(See Deposition of Mannie Jackson, attached as Exhibit "B" p. 249). Mr. Jackson goes on to state that he is not aware of any other items, other than the FUBU clothing line, that used the plaintiffs' names and likenesses. (Exhibit "B" p. 249-250) (emphasis added). Mr. Jackson also stated that the company who owned the merchandising business prior to Mr. Jackson, Nice Man, did not use plaintiffs' names and likenesses. (Exhibit "B" p. 257-259). Therefore, it is obvious from Mr. Jackson's testimony that Defendants already knew they had never licensed Plaintiff's name and likeness for clothing prior to the FUBU clothing line. Unless Defendants are now disputing the truthfulness of the testimony of Mr. Jackson and the statements in Mr. Mutum's affidavit, their objection to Plaintiff's use of Mr. Mutum's statements is illogical. Second, Plaintiff's use of Mr. Mutum's Affidavit is harmless because a trial date has not been set in this matter and Defendants still have ample time to speak with Mr. Mutum before trial. However, such questioning would be unnecessary because, as explained, Defendants already possess (and have always possessed) the information contained in Mr. Mutum's Affidavit, and the information is actually supported by the testimony of Defendants themselves. Therefore, Defendants are in no way prejudiced -5Document 317

Case 2:04-cv-00299-DGC

Filed 12/13/2005

Page 5 of 8

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

by Plaintiff's use of Mr. Mutum's Affidavit in support of Plaintiff's Motion for Summary Judgment, and any alleged failure to timely disclose the affidavit or Mr. Mutum is harmless. III. CONCLUSION For the foregoing reasons, Defendants' Motion to Strike should be denied, and the Affidavit of Edwin James Mutum should be considered by the Court when ruling upon Plaintiff's Motion for Summary Judgment. DATED this 13th 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

-6Document 317

Filed 12/13/2005

Page 6 of 8

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

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 13th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., AND MANNIE L. JACKSON & CATHERINE JACKSON'S MOTION TO STRIKE AFFIDAVIT OF EDWIN JAMES MUTUM 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 -7Document 317

Filed 12/13/2005

Page 7 of 8

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

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 13th day of December 2005, at Phoenix, Arizona.

/s/Florence M. Bruemmer Florence M. Bruemmer

-8Document 317

Filed 12/13/2005

Page 8 of 8