Free Reply - District Court of Arizona - Arizona

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Ray K. Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 (602) 916-5414 Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY 634 W. Main Street, Suite 101 Madison, WI 53703 (608) 256-1003 Attorneys for Defendants Harlem Globetrotters Int' Inc., l, Harlem Globetrotters International Foundation, Inc., and Mannie L. & Catherine Jackson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiffs, No. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC

13 vs.

DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM HARLEM GLOBETROTTERS INTERNATIONAL, GLOBETROTTERS INTERNATIONAL 14 INC., et al.; FOUNDATION, AND MANNIE L. & CATHERINE JACKSON' REPLY TO S 15 PLAINTIFF LEMON' RESPONSE TO S Defendants. DEFENDANTS' MOTION FOR SANCTIONS 16 UNDER FED. R. CIV. P. 11 17 INTERNATIONAL, INC., an Arizona 18

HARLEM GLOBETROTTERS corporation,

19 vs.

Counterclaimant,

20 MEADOWLARK LEMON, a married man, 21 22 23 24 25 26 Case 2:04-cv-00299-DGC PHX/RHARRIS/1736777.1/43458.007 Document 269
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Counterdefendant.

Defendants Harlem Globetrotters International, Inc. ("HGI"), Mannie & Catherine Jackson, and the Harlem Globetrotters International Foundation, Inc. ("HGIF" or "the Foundation"), collectively, "HGI Defendants," submit this reply to Plaintiff Meadowlark

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Lemon' response to the HGI Defendants' motion for sanctions (Lemon Resp., Doc 233). For s the reasons stated below, Plaintiff Lemon has not submitted an adequate response to the HGI Defendants' motion, and sanctions should be awarded to Defendants regarding Plaintiff' s defamation claim, Plaintiff' naming of the Jacksons and the Foundation as defendants, and s Plaintiff' dismissed-but-not-dismissed third-party complaint. (HGI Sanctions Mem., Doc 216.) s As an initial matter, Plaintiff accuses the HGI Defendants of "attempting to mislead the Court" for filing their sanctions motion on November 3, 2005, when it is dated September 23, 2005. (Lemon Resp., Doc 233, at 2.) The HGI Defendants were observing the "safe harbor" provisions of Fed. R. Civ. P. 11(c)(1)(a), which requires a minimum twenty-one day waiting period between service of a Rule 11 motion and filing of that motion with the court. The HGI Defendants personally served Plaintiffs' counsel with their Rule 11 motion on September 23, 2005, and additionally served it on counsel of record by mail that same day. (Garvey Aff., 11/28/05, ¶ 3.) Plaintiff did not withdraw or correct the challenged conduct after service (id. ¶ 4), and the HGI Defendants subsequently filed the motion with the Court (HGI Mot. for Sanctions, Doc 215; HGI Sanctions Mem., Doc 216). Plaintiff' accusations are unfounded. s The HGI Defendants also note that Plaintiff' response to their sanctions motion was s untimely pursuant to LRCiv 7.2(c). I. ARGUMENT HGI DEFENDANTS' RULE 11 MOTION IS NOT A MOTION ON THE MERITS.

Plaintiff Lemon' primary defense to the HGI Defendants' motion is that their Rule 11 s motion is really a motion to dismiss Plaintiff' claims on the merits, which exceeds the scope of s Rule 11. Plaintiff misconstrues the purpose of summary judgment and Rule 11 motions. Motions for Rule 11 sanctions and motions for summary judgment are similar but far from identical. As Plaintiff' initial sanctions memorandum explained (HGI Sanctions Mem., s Doc 216, at 2-3, 6), Motions for Rule 11 sanctions may be awarded where a claim is unwarranted by existing law or lacks factual support, Fed. R. Civ. P. 11(b)(2), (3). A motion for
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summary judgment also evaluates a party' legal theories and the factual support for those s theories. Fed. R. Civ. P. 56(c). The similarities end there, however where Rule 56 focuses on the legal claims themselves. Rule 11 focuses on the conduct of the parties and their counsel. The rules also offer completely different remedies-- in the case of Rule 56, dismissal of some or all of a party' claim, and in the case of Rule 11, monetary sanctions, nonmonetary directives, or s an order to pay a penalty to the court. See Fed. R. Civ. P. 11(c). Motions for sanctions are often filed with or at the same time as motions for summary judgment. E.g., Hauser v. Farrell, 14 F.3d 1338 (9th Cir. 1994) (considering parties' motions for summary judgment and sanctions); Heary Bros. Lightning Protection Co., Inc. v. Lightning Protection Instit., 287 F.Supp.2d 1038 (D.Ariz. 2003) (same). The HGI Defendants' motion for sanctions is not a motion to dismiss Plaintiff' claims s on their merits. The HGI Defendants did file a motion for summary judgment on all of Plaintiff' claims. (HGI SJ Mot. & Mem., Docs. 194, 195). Yet the reasons for and remedies s sought by the motion for sanctions are different. As the HGI Defendants' summary judgment motion asserted, Plaintiff' defamation claim and naming of the Jacksons and the Foundation as s defendants completely lacked factual and legal support and warranted dismissal. (HGI SJ Mem., Doc 195.) The Rule 11 motion goes farther, establishing that these claims so lacked factual and legal support that sanctions are appropriate. (HGI Sanctions Mem., Doc 216, at 2-9.) Plaintiff Lemon did not respond to case law the HGI Defendants cited that demonstrated a factually and legally unsupported claim can lead to sanctions. (E.g., id. at 6.) The fact that the grounds for the summary judgment and sanctions motions overlap is thus immaterial. The HGI Defendants have properly asserted their Rule 11 claim. II. THE HGI DEFENDANTS' MOTION FOR SANCTIONS IS FURTHER SUPPORTED BY PLAINTIFF' MOTION FOR SUMMARY JUDGMENT. S

As stated above, two of the grounds for the HGI Defendants' sanctions motions were the absolute lack of legal and factual support for naming Mannie & Catherine Jackson and the

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Foundation as defendants, and for asserting a groundless defamation claim. Plaintiff' own s motion for summary judgment further demonstrates that Plaintiff' claims are baseless. s Plaintiff Lemon' motion for summary judgment does not allege a separate basis for s liability against Mannie & Catherine Jackson and the Foundation; instead, it focuses on HGI. In fact, it fails to consider individual liability against the Jacksons and the Foundation at all. (Lemon SJ Mot., Doc 197.) The fact that Plaintiff did not or cannot assert a separate basis for liability against these defendants in his own summary judgment motion supports the HGI Defendants' contention that Plaintiff lacked a basis for naming them in the first place, and that doing so was sanctionable conduct. Further, Plaintiff' motion was filed weeks after the HGI s Defendants' sanction motion was filed.1 Plaintiff was on notice that naming the Jacksons and the Foundation was asserted as grounds for both summary judgment and sanctions. Similarly, Plaintiff Lemon' allegations of defamation as described in his motion for s summary judgment are also frivolous. (Id. at 15-16.) Plaintiff Lemon asserts an entirely new basis for his defamation claim-- comments Mannie Jackson purportedly made to the author Ben Green-- that were not asserted in Plaintiff' complaint or any disclosure or discovery response.2 s (HGI Resp. to Lemon SJ Mot., 11/28/05, at 13-14.) Plaintiff' motion for summary judgment is further evidence that Plaintiff has frivolously s named the Foundation and the Jacksons and that he has frivolously asserted a defamation claim. III. PLAINTIFF CLAIMS TO HAVE DISMISSED HIS THIRD-PARTY COMPLAINT AT THE SAME TIME THAT HE RE-FILED IT.

Plaintiff' argument regarding the third-party complaint can be reduced to the following: s Plaintiff Lemon claims to have dismissed his third-party complaint against David Derrington et al., before his latest answer to HGI' counterclaim named them as Third-Party Defendants. s While Plaintiff voluntarily dismissed these defendants last year (Notice of Voluntary Dismissal,
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The sanction motion was filed more than a month after HGI Defendants put Plaintiff on notice of the Rule 11 motion. His claims based on the Arizona Republic article also lack legal and factual support to such an extent that sanctions are warranted. (Id.)

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Doc 89), he named them again in August 2005 (Pl' Ans. to Counterclaim, Doc 144). Plaintiff s now asserts he does not intend to raise claims related to these defendants (Westerberg Aff., Ex. A, Doc 216); thus, his newly-filed answer should have omitted these defendants and alleged defenses consistent with their omission. The HGI Defendants cannot understand why Plaintiff persists in naming Mr. Derrington et al as third-party Defendants. The HGI Defendants also take issue with Plaintiff' contention that they were required to s contact the Court before "fil[ing] anything" regarding Plaintiff' answer to the counterclaim. s (Lemon Resp., Doc 233, at 4-5.) At the August 16, 2005, telephone conference to which Plaintiffs refer, the Court only requested that HGI contact the Court prior to filing a motion for default judgment on the counterclaim. Prior to that time-- and contrary to Plaintiff' claim-- s HGI had only filed an application for entry of default judgment. (Doc 140.) HGI acknowledges the counterclaim may be moot since Plaintiff Lemon has apparently ceased the infringing conduct that was the basis of HGI' counterclaim. (HGI Resp. to Lemon s SJ Mot., 11/28/05, at 14.) Yet Plaintiff Lemon' conduct with respect to his counterclaim s exemplifies the careless legal work that has come to typify his filings in this case, and which is becoming increasingly tiresome to the HGI Defendants. CONCLUSION For the reasons stated above, the HGI Defendants respectfully request the Court to enter sanctions under Fed. R. Civ. P. 11 against Plaintiffs and award the HGI Defendants their reasonable costs and attorneys fees associated with Plaintiffs' violations. Dated this 28th day of November, 2005. By: s/ Edward R. Garvey _ Edward R. Garvey GARVEY McNEIL & McGILLIVRAY 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int' Inc. and Harlem l,
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Globetrotters Int' Foundation l Mannie L. & Catherine Jackson Ray Harris FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int' Inc. and Harlem l, Globetrotters Int' Foundation l Mannie L. & Catherine Jackson CERTIFICATE OF SERVICE 1. I hereby certify that on November 28, 2005, a true and correct copy of the attached document was electronically transmitted to the Clerk' Office using the CM/ECF System for s filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Edward R. Garvey ­ [email protected] Safia A. Anand ­ [email protected] Florence M. Bruemmer ­ [email protected], [email protected] Joel Louis Herz - [email protected], [email protected] Ira S. Sacks ­ [email protected] Anders Rosenquist, Jr. ­ [email protected] Clay Townsend ­ [email protected], [email protected] Robert W. Goldwater, III ­ [email protected] 2. I hereby certify that on November 28, 2005, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Keith R. Mitnik Morgan Colling & Gilbert PA 20 N. Orange Ave., Suite 1600 Orlando, FL 32802 s/ Melody Tolliver

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