Free 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 RESPONSE TO DEFENDANT GTFM, LLC'S MOTION TO STRIKE PLAINTIFF'S THIRD SUPPLEMENTAL DISCLOSURE STATEMENT 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.

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Plaintiff, Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, hereby submits his response to Defendant GTFM, LLC's (hereinafter "GTFM" or "Defendant") Motion to Strike Plaintiff's Third Supplemental Disclosure Statement. Plaintiff respectfully requests that Defendant's Motion to Strike be denied for the following reasons. I. DEFENDANT'S MOTION TO STRIKE IS IMPROPER. First, Defendant's Motion to Strike Plaintiff's Third Supplemental Disclosure Statement is improper because Plaintiff's Third Supplemental Disclosure Statement 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 crossclaim, 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 thirdparty 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). Rule 12(f) applies only to pleadings. 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); Pilgrim v. Trustees
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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). Plaintiff's Third Supplemental Disclosure Statement is not a pleading as defined in Rule 7(a) Fed.R.Civ.P., and therefore Rule 12(f) cannot apply. Furthermore, Plaintiff's disclosure statement was simply information disclosed to all defendants and was never even filed with the court. Therefore, Defendants are requesting that the Court strike a document that was never even filed with the Court. Because Plaintiff's supplemental disclosure is not a pleading,

Defendant's Motion to Strike is improper and should be denied. II. THE WITNESSES DISCLOSED IN PLAINTIFF'S THIRD SUPPLEMENTAL DISCLOSURE STATEMENT SHOULD NOT BE PRECLUDED. Defendants' request the witnesses listed by Plaintiff in his Third Supplemental Disclosure Statement be precluded because the disclosure was untimely. However, Rule 26(e) of the Federal Rules of Civil Procedure places an affirmative duty on a party who has made an initial disclosure pursuant to 26(a), to supplement that information "if the party learns that in some material respect the information disclosed is incomplete ... and if the additional ... information has not otherwise been made known to the other parties during the discovery process or in writing." (emphasis added). Supplementations need not be made as each new item of

information is learned but should be made at appropriate intervals, and with special promptness as the trial date approaches. Fed.R.Civ.Pro. 26(e). Furthermore, Rule 26(e) does not set forth a deadline by which supplemental disclosures must be made. See Fed.R.Civ.P. 26(e) (emphasis added); Advisory Committee
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See Advisory Committee Notes for 1993 Amendments to

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Notes for 1993 Amendments to Fed.R.Civ.Pro. 26(e).

Therefore, the Advisory Committee

Notes state that it may be useful for the scheduling order to specify the time or times when supplementations should be made. Id. Although the Court did not specify in the scheduling order the times when supplementations pursuant to Rule 26(f) should be made, the Court clearly has wide discretion in determining whether a disclosure is untimely. See MRO Communs., Inc. v. AT&T, 1999 U.S. App. LEXIS 32522 (9th Cir. 1999), unpublished (district court did not abuse its discretion by excluding evidence for a two-year delay in disclosing the evidence). A district court has very wide discretion in handling discovery. See Fed.R.Civ.P. 16(b); Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir. 1979). Even though Plaintiff's supplemental disclosure was submitted after the deadline for completion of fact discovery, the supplemental disclosure statement was not "untimely" as contemplated by the Federal Rules of Civil Procedure. First, Plaintiff's supplemental disclosure statement was disclosed merely one month after the deadline for completion of fact discovery. Second, Plaintiff disclosed several employees of Defendants as witnesses, all of whom have previously been deposed by defense counsel. Third, the possible character witnesses for

Plaintiff's expert were promptly disclosed by Plaintiff once Plaintiff discovered (through Defendant's filing of a Motion to Strike Plaintiffs' Expert Report) that Defendant's were intending to attack the credibility and character of Plaintiff's expert at trial. Because Plaintiff complied with his affirmative duty to submit a supplemental disclosure and that supplemental disclosure was not untimely, Plaintiff's witnesses should not be excluded.

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Furthermore, even if the Court (under its wide discretion) were to agree with Defendants that Plaintiff's Supplemental Disclosure Statement was untimely, Plaintiff's witnesses should not be precluded because the failure to disclose was harmless. Rule 37(c), Federal Rules of Civil Procedure, states that witnesses and evidence may be excluded at trial only if a party who "without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1)..., unless such failure is harmless..." Plaintiff's alleged untimely disclosure is

harmless because Plaintiff's supplemental disclosure statement was made merely one month after the deadline for fact discovery, and a trial date has not been set in this matter. Also, most of the witnesses listed are employees of the Defendants, who have either been previously disclosed by Plaintiff or have already been extensively deposed by defense counsel. Additionally, the few character witnesses disclosed by Plaintiff are merely rebuttal witnesses who will only be used if Defendants attack the character of Plaintiff's expert's character at trial. If, however, Defendants do not intend to attack the character of Plaintiff's expert as they assert in their Motion, then the issue is moot. Lastly, as stated a trial date has not yet been set, which gives Defendants ample time to speak with or interview the character witnesses for Plaintiff's expert. Therefore, Defendants are in no way prejudiced by Plaintiff's Third Supplemental Disclosure Statement and any alleged failure to timely disclose the witnesses therein is harmless. III. THE WITNESSES DISCLOSED IN PLAINITFF'S THIRD SUPPLEMENTAL DISCLOSURE STATEMENT ARE PROPER WITNESSES. Lastly, Defendants attempt to argue that pursuant to Rule 608(a), the character witnesses for Plaintiff's expert should be stricken as the Federal Rules of Evidence do not allow for such witnesses. Rule 608(a) of the Federal Rules of Evidence only precludes Plaintiff from calling
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the character witnesses during his case-in-chief. Therefore, Defendants argument is flawed as they incorrectly assume that Plaintiff will be calling the character witnesses during his case-inchief to bolster the credibility of Plaintiff's expert. However, pursuant to the Federal Rules of Evidence, Plaintiff may be calling the character witnesses to testify to Plaintiff's expert's character "only after the character of the witness for truthfulness has been attacked..." Fed.R.Evid. 608(a). Therefore, the character witnesses disclosed by Plaintiff are proper rebuttal witnesses. Unfortunately, Plaintiff will not be relying on Defendants many, self-serving,

statements that "there will be no attack on the character of Ms. Abalos." (Defendants Motion at 4, 6). Plaintiff instead chose to promptly disclose these possible character witnesses in the event that Defendants decide to attack Ms. Abalos' character at trial, as they did in their Motion to Strike Plaintiffs' Expert Report. Plaintiff will then be calling the witnesses in his rebuttal. IV. CONCLUSION For the foregoing reasons, Defendant's Motion to Strike should be denied, and Plaintiff's witnesses should be permitted to testify at trial. DATED this 8th 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 8th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANT GTFM, LLC'S MOTION TO STRIKE PLAINTIFF'S THIRD SUPPLEMENTAL DISCLOSURE STATEMENT 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
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Scottsdale, Arizona 85260 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 8th day of December 2005, at Phoenix, Arizona.

/s/Florence M. Bruemmer Florence M. Bruemmer

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