Free Response to Motion - 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 No. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC DEFENDANT HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON' S RESPONSE TO PLAINTIFF LEMON' S MOTION FOR SUMMARY JUDGMENT

12 MEADOWLARK LEMON, et al., 13 14 Plaintiffs, vs.

HARLEM GLOBETROTTERS 15 INTERNATIONAL, INC., et al.; 16 17 Defendants.

HARLEM GLOBETROTTERS 18 INTERNATIONAL, INC., an Arizona corporation, 19 Counterclaimant, vs. 20 21 MEADOWLARK LEMON, a married man, 22 Counterdefendant. 23 24 25 26
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Defendants Harlem Globetrotters International, Inc. ("HGI" or "the Globetrotters"), Harlem Globetrotters International Foundation ("HGIF" or "the Foundation"), and Mannie & Catherine Jackson (collectively, "the HGI Defendants") submit this memorandum in response to Plaintiff Meadowlark Lemon' motion for summary judgment (Lemon SJ s Mot., 10/28/05, Doc. 197). Mr. Lemon cites little law and few facts in an unpersuasive argument that judgment is owed him under the Lanham Act and common law. Plaintiff Lemon' motion for summary judgment should be denied and the HGI defendants granted s their costs and attorneys' fees pursuant to 15 U.S.C. § 1117(a). FACTS The HGI Defendants rely on their responses to Lemon' Statement of Facts s ("RLSOF") and Defendants' Statement of Facts ("DSOF") filed with the HGI Defendants' motion for summary judgment. (DSOF, 10/28/05, Doc 196.) The HGI Defendants have challenged several of Lemon' facts as lacking s foundation and as otherwise defective in their Response to Lemon' Statement of Facts s RLSOF. Several facts are supported only by unauthenticated documents (RLSOF at 2-3) or are unsupported by the record citation. These include Lemon' contentions that the s Globetrotters FUBU apparel ("the Apparel") attached hangtags bearing Plaintiff' name s (RLSOF ¶¶ 26, 27), that the clothing bearing Plaintiff Lemon' name was the highest s selling of all players (RLSOF 33), and that he never signed a contract with the Globetrotters permitting the team to use Plaintiff' information in perpetuity (RLSOF ¶ 4). s Plaintiff Lemon also habitually extrapolates from his Statement of Facts to make new, unsupported statements, such as the bald assertion that he is "a celebrity in his own right." (Lemon SJ Mot., Doc 197, at 4.) Plaintiff Lemon does not cite any facts at all for some assertions, such as his claim that he produces sports apparel. (Id. at 7, 11.) Such conclusory and self-serving statements cannot support Plaintiff Lemon' motion for s summary judgment. Fed. R. Civ. P. 56(c); Lujan v. Nat. Wildlife Fed' 497 U.S. 871, 888 n,
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(1990) ("The object of [FRCP 56] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); FTC v. Publ' Clearing House, g 104 F. 3d 1168, 1171 (9th Cir. 1997) (holding conclusory, self-serving statements in affidavits or briefs are insufficient to create a genuine issue of material fact). Plaintiff Lemon' facts must be taken with a large grain of salt and are insufficient to justify an s award of summary judgment. STANDARD OF REVIEW Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Plaintiff Lemon, as the moving party, bears the initial burden of informing the court of the basis for his motion and demonstrating an absence of issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Because Plaintiff Lemon has the burden of proof at trial on all the issues presented on summary judgment, his "showing must be sufficient for the court to hold that no reasonable trier of fact could find other than" for him. Carnegie Mellon Univ. v. Hoffman La Roche, Inc., 148 F. Supp. 2d 1004, 1009 (N.D.Cal. 2001). "Cross motions for summary judgment may be probative of the non-existence of a factual dispute," Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983), although the court must still independently determine whether genuine disputes of material facts are present, Fair Hous. Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The district court has no obligation to conduct a searching review of the record for evidence that establishes a genuine issue of fact. Id. at 1136-37.1
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HGI notes Plaintiff Lemon' attempt to join the Neal Plaintiffs' motion for summary judgment. (Lemon Jndr. Mot., s Doc 209.) The Neal Plaintiffs' motion contains a more detailed analysis than Lemon offers on why the Plaintiffs' player contracts are invalid, under a range of tortured and unavailing legal theories. (Neal SJ Mot., Doc 75.) Lemon' joinder motion is obviously an attempt to bootstrap onto these arguments, thereby reducing his work and s avoiding the page limit for motions set forth in LRCiv 7.2(e). Yet neither he nor the Neal Plaintiffs set forth specific
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ARGUMENT I. PLAINTIFF HAS NOT STATED A CLAIM AGAINST THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC. OR MANNIE & CATHERINE JACKSON. Plaintiff Lemon' Complaint names the Harlem Globetrotters International s Foundation, Inc. ("the Foundation" or "HGIF") and Mannie & Catherine Jackson as Defendants, in addition to Harlem Globetrotters International, Inc. ("HGI"). (Lemon Compl., Doc. 76.) Plaintiff Lemon appears to move for summary judgment only against HGI (Lemon SJ Mot., Doc. 197, at 2-3) and does not explain why HGIF and the Jacksons may be liable in this case. To the extent Plaintiff Lemon intended to move for summary judgment against HGIF and the Jacksons, his motion should be denied against them and the HGI Defendants' motion for summary judgment granted. (HGI SJ Mem., 10/28/05, Doc 195, at 2-3.) As Plaintiff Lemon acknowledges, HGI was the only HGI Defendant which was a party to the licensing agreement at issue in this case. (RLSOF ¶¶ 15, 16.) As such, HGI is the only proper HGI Defendant. (HGI SJ Mem., Doc 195, at 2-3.) Plaintiff Lemon seems to realize this: at the outset of his brief, he distinguishes HGI, which he refers to as "HGI" throughout the brief, from "Defendants," which refers collectively to HGI and the other party defendants. (Lemon SJ Mot., Doc 197, at 1-2.) He then argues liability only against HGI and GTFM, LLC in every section of his brief, and even begins each section with the subtitle, "HGI Is Liable to Plaintiff . . . ." (Id. at 6, 9, 12, 14, 15.) Plaintiffs Lemon' brief s never explains how or why HGIF or the Jacksons may be liable under any of his claims related to the Apparel, and does not establish a factual basis for their liability in his statement of facts. Only Plaintiff' defamation claim, which frivolously asserts that s

facts as to why Plaintiff Lemon' contracts might be invalid, such that the Neal Plaintiffs' motion does not assist s Plaintiff Lemon in meeting his summary judgment burdens.
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Mannie Jackson made defamatory statements against Lemon,2 implicates any actor besides HGI. (Id. at 15-16.) Yet even this section is titled, "HGI Is Liable To Plaintiff for Defamation." (Id. at 15.) Plaintiff Lemon has not stated a claim against HGIF or the Jacksons, and his motion for summary judgment must be denied. II. PLAINTIFF LEMON' LANHAM ACT CLAIM LACKS MERIT. S Plaintiff Lemon attempts to make his Lanham Act claim against the HGI Defendants in less than three pages and with only four cases. (Lemon SJ Mot., Doc 197, at 5-7.) In doing so, Plaintiff misstates the law and relies almost exclusively on unsupported statements of fact. Plaintiff Lemon has not shown he is entitled to judgment on his Lanham Act claim as a matter of law, and his motion for summary judgment must be denied. A. Plaintiff Lemon Misstates the Applicable Law.

Plaintiff Lemon claims the HGI Defendants are liable under the trademark infringement prong of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), but acknowledges only one of the elements of that claim: likelihood of confusion. (Lemon SJ Mot., Doc. 197, at 5.) One crucial but conveniently set-aside showing that Plaintiff Lemon must make is that he has a protectable mark, or that his claimed "marks" possess secondary meaning. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1291 (9th Cir. 1992) (stating "[s]econdary meaning is the consumer' association of the mark with a particular source or s sponsor"); Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1359 (9th Cir. 1985) (stating a finding of no secondary meaning normally forecloses a finding of likelihood of confusion).3 Plaintiff Lemon also fails to acknowledge that a person' likeness normally s
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See Section VII, infra, and the HGI Defendants'memorandum in support of motion for sanctions (Sanctions Mem., 11/3/05, Doc. 216). 3 A more complete analysis of secondary meaning is contained in the HGI Defendants'motion for summary judgment. (HGI SJ Mem., Doc. 195, at 3-6.)
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cannot be trademarked, ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915, 922 (6th Cir. 2003), or that he does not have ownership in the player number he wore as a Globetrotter (DSOF ¶ 12, Doc 196).4 Thus, Plaintiff Lemon' only possible Lanham Act argument rests s on an allegedly infringing use of his name, if his name is a protectable mark. Plaintiff Lemon has also misstated the likelihood of confusion test, attributing five factors to the test when case law-- including White v. Samsung, which Plaintiff cites-- shows that there are eight. White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1400 (9th Cir. 1992), pet. for reh' en banc denied, 989 F.2d 1512 (9th Cir. 1993), cert. denied, 508 g U.S. 951 (1993). The proper test, derived from the seminal Sleekcraft case, examines: 1) strength of the mark; 2) proximity or relatedness of the goods; 3) similarity of the marks; 4) evidence of actual confusion; 5) marketing channels used; 6) likely degree of purchaser care; 7) defendant' intent in selecting the mark; and 8) likelihood of expansion of the s product line. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979). Plaintiff Lemon' analysis of the likelihood of confusion test is sparse,5 and the cases he s does cite are unhelpful to him. Parks v. LaFace Records is a Sixth Circuit case where the parties stipulated that the plaintiff, Rosa Parks, possessed international fame, and did not even apply the eight-factor likelihood of confusion test. 329 F.3d 437, 447, 449 (6th Cir. 2003) (assessing hip-hop group' song, "Rosa Parks," using First Amendment analysis). s Golden Door and New West are not false endorsement cases, and again, apply the incorrect likelihood of confusion analysis. Golden Door, Inc. v. Anver Odisho, 646 F.2d 347 (9th Cir. 1980); New West Corp. v. NYM of Cal., Inc., 595 F.2d 1194 (9th Cir. 1979).6 Plaintiff Lemon also fails to acknowledge that not all uses of a person' name are s actionable: "Mere possibility that a consumer may be misled by Appellees' use of the
The HGI Defendants address this issue further in their summary judgment memorandum. (Id. at 5.) See id. at 6-10. 6 These cases also pre-date the Lanham Act amendments of 1988. J. McCarthy Trademarks and Unfair Competition § 27:6 (4th ed. 2004) (hereinafter "McCarthy").
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[plaintiff' name] is not enough to establish a cause of action for unfair competition." s Newton v. Thompson, 22 F.3d 1455, 1461-62 (9th Cir. 1994) (rejecting singer Wood Newton' Lanham Act claim against television producers who included a character with s his name in television program). B. Plaintiff Lemon' Lanham Act Claim is Factually and Legally Deficient. s

No Secondary Meaning. Plaintiff Lemon has not introduced evidence sufficient to prove a Lanham Act claim. A factual showing of secondary meaning is entirely absent, whether applicable to Lemon' name, likeness, or number. Instead, Plaintiff summarily s claims that he "is a celebrity and has used his name to promote his ministries and charities and his own basketball team," but includes no facts in his statement of facts or brief to support these statements. (Lemon SJ Mot. at 6, Doc 197.) These conclusory, self-serving, and unsupported statements are of no consequence on summary judgment, and Plaintiff has not met his burden to show that he possesses a trademark at all. Further, Plaintiff lacks a legal basis for claiming secondary meaning for reasons the HGI Defendants have previously stated. (HGI SJ Mem., Doc 195, at 3-6.) No Likelihood of Confusion. As for the likelihood of confusion test, Plaintiff Lemon presents another factually and legally inadequate analysis. He begins with a litany of unsubstantiated statements that are so far off-base that Lemon does not even cite his statement of facts: that "most" of the Apparel, or tags attached thereto, bore Plaintiff' s name; that Plaintiff produces sports apparel, including basketball apparel; and that Plaintiff Lemon produces and distributes sports and basketball products bearing his name. (Lemon SJ Mot. at 6-7, Doc 197.) In actuality, only a small percentage of the Globetrotters' Apparel included Plaintiff' name (DSOF ¶ 79, Doc 196); it is unclear how much, if any, s of the Apparel, included the tags with Plaintiff' name (RLSOF ¶ 26) and Plaintiff has s admitted he does not produce his own line of clothing (DSOF ¶¶ 115, 147, Doc 196).

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Plaintiff has previously sold a red, white, and blue basketball (Id. ¶ 117),7 but given that no basketballs were produced under the License Agreement (Id. ¶¶ 67, 78), Plaintiff Lemon cannot claim that his products and the Apparel are "identical." Plaintiff Lemon' legal analysis is equally unpersuasive. Lemon again makes s conclusory and insufficient statements to support the first likelihood of confusion factor, "strength of the mark," saying only that the Harlem Globetrotters are well-known around the world and that he is the most recognized player. (Lemon SJ Mot., Doc 197, at 7.) The second factor, relatedness of the goods, is undercut by the showing made above, i.e. that HGI and Plaintiff Lemon do not produce related goods. Even if they did produce similar goods bearing similar marks, however, a finding of likelihood of confusion would not follow from the Apparel. In this case, because the Globetrotters have used Plaintiff' name s for promotion and commercial purposes for so long, DSOF ¶¶ 24-31, 33-37, it has lost any significance separately identifying Plaintiff as the source of a Globetrotters product. Cairns v. Franklin Mint Co., 107 F. Supp. 2d 1212, 1217 (C.D.Cal. 2000) (hereinafter "Cairns I"), aff' 292 F.3d 1139, 1149-50, 1155 n.14 (9th Cir. 2002) (hereinafter "Cairns d II") (finding no likelihood of confusion from defendant' Princess Diana product where s similar unauthorized products were regularly sold in commerce). In other words, the proper consumer inference is that the Globetrotters, not Plaintiff, endorsed the Apparel. Id. Mr. Lemon moves on to intent of Defendants in producing the Apparel, and cites facts showing that Defendants did actually profit for the conclusion that their intent was commercial profit. Yet this is not the correct analysis: the question, as Plaintiff Lemon acknowledges (Lemon SJ Mot., Doc 197, at 5), is whether Defendants intended to profit "by confusing consumers." Newton, 22 F.3d at 1463 (emphasis in original). Plaintiff cannot make this showing; even if Defendants intended to profit from the Apparel, they did
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HGI has challenged this basketball as infringing on its HAND AND BALL logo, although it is HGI' understanding s that the basketball is no longer being sold.
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not intend to profit from consumer confusion regarding Plaintiff' name because they s possessed, or believed they possessed, the rights to use Plaintiff' names and likenesses. s (DSOF ¶¶ 4, 69, Doc. 196.) Plaintiff next claims that "actual confusion"-- the fourth Sleekcraft factor-- "is certain" because "the public is very aware that celebrities, especially sports celebrities, make profits from endorsing products such as clothing, etc." (Lemon SJ Mot. at 7, Doc 197.) This claim is again factually unsupported, and does not approximate the consumer surveys, expert opinions, and retailer testimony that usually support an actual confusion analysis. E.g., Kournikova v. Gen. Media Communications, Inc., 278 F. Supp. 2d 1111, 1121-26 (C.D.Cal. 2003). It is also legally dubious: Cairns I found celebrity endorsements usually occur in commercial advertising for an unrelated product, such as the use of singer Tom Waits' distinctive voice in a Doritos commercial. 107 F. Supp. 2d at 1215. The likelihood of consumer confusion is less when a name is used on a product, rather than in commercial advertising for it. Id. Mr. Lemon skips the remaining Sleekcraft factors (marketing channels used, likely degree of purchaser care, likelihood of expansion of the product line), none of which support him. (HGI SJ Mem., Doc 195, at 9-10.) No Damages. Finally, Plaintiff Lemon has not shown that he was injured by the Apparel or would be entitled to damages even if he prevailed on his Lanham Act claim. (HGI SJ Mem., Doc. 195, at 16-19.) Affirmative Defenses Preclude Summary Judgment. The HGI Defendants reassert their affirmative defenses of estoppel/license and laches as set forth in their motion for summary judgment, based on the player contracts Plaintiff signed and his long silence in filing suit. (Id. at 10-16.) Plaintiff Lemon claims that HGI did not have the right to use or sublicense Plaintiff' name and likeness (Lemon SJ Mot., Doc 197, at 6), yet he admits he s signed player contracts, including his last player contract in 1975 (RLSOF ¶¶ 4, 5; DSOF ¶
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18, Doc 196). It is undisputed that these contracts included provisions that gave the HGI Defendants the right to use and sublicense Plaintiff' name and likeness in perpetuity. s (RLSOF ¶¶ 4, 5; DSOF ¶ 18.) The contracts, and Plaintiff' failure to monitor the s Globetrotters' use of their name and likenesses, estop any Lanham Act claim Plaintiffs could possibly make. (HGI SJ Mem., Doc. 195, at 10-14.) Yet even if these provisions were somehow inapplicable-- a legal, not factual, determination-- Plaintiff Lemon' claims s are defeated by laches, given his admitted knowledge that the Globetrotters were using his name and likeness for decades and his failure to object or file a lawsuit. (DSOF ¶¶ 38, 43, 49, 56; HGI SJ Mem., Doc 195, at 14-16.) Plaintiff Lemon has not made an adequate factual and legal showing to support his Lanham Act claim, and his motion for summary judgment must be denied. III. PLAINTIFF' RIGHT OF PUBLICITY CLAIM LACKS MERIT. S As with the Lanham Act claim, Plaintiff Lemon' common law right of publicity s claim is also legally and factually unsupported and should be dismissed. First, as discussed in the HGI Defendants' motion for summary judgment, it is not even clear that Arizona recognizes a right of publicity. (HGI SJ Mem., Doc 195, at 19-20.) The single case addressing right of publicity acknowledges the Arizona legislature' and s courts' silence on the issue but cites California common law on a motion to dismiss. Pooley v. Nat' Hole-in-One Ass' 89 F. Supp. 2d 1108, 1111 (D.Ariz. 2000). Arizona l n., state courts may not have done the same. Second, Plaintiff granted the Globetrotters the right to use his name and likeness through his player contracts. The terms of Plaintiffs' contracts clearly included Plaintiff' s publicity rights, DSOF ¶ 18, and publicity rights can certainly be licensed, Miller v. Glenn Miller Productions, 318 F. Supp. 2d 923, 934-35 (C.D.Cal. 2004). Plaintiff is thus now estopped from claiming he did not contract these rights away. Id. at 945. Plaintiff' s publicity claim is also barred by laches, as the HGI Defendants explained in their own
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motion for summary judgment. (HGI SJ Mem., Doc 195, at 14-16, 20.) Third, Plaintiff cannot satisfy the elements of a right of publicity claim. Assuming California' common law applies, Plaintiff must show: 1) the defendant' use of plaintiff' s s s identity; 2) the appropriation of plaintiff' name or likeness to the defendant' advantage, s s commercially or otherwise; 3) lack of consent; and 4) resulting injury. Pooley, 89 F. Supp. 2d at 1111. The starkest reasons for denying Plaintiff' right of publicity claim are s threefold. First, he has not shown consumers purchased the Apparel because his information was on it, and therefore that the use of his information benefited the HGI Defendants in any way. (DSOF ¶¶ 96, 155, Doc 196.) Second, Plaintiff Lemon cannot show lack of consent, given the player contracts he voluntarily signed and his long silence in objecting to the Globetrotters' use of his name. Newton, 22 F.3d at 1461 (finding consent via written communication and failure to object). As discussed above, Plaintiff explicitly consented to the promotional and commercial use and sublicensing of his name in perpetuity through his player contracts. (Id. ¶ 18.) Plaintiff Lemon claims his 1975 contract does not cover the Apparel, since the contract states that Lemon' name and s likeness can only be used to the extent they are put to the same use as they were put prior to the contract' termination. (Lemon SJ Mot., Doc 197, at 9-10.) However, this argument s falsely assumes that HGI did not use Lemon' name in a similar manner while he was a s player. (DSOF ¶¶ 7, 18, Doc 196.) It is undisputed that the Globetrotters used Plaintiff Lemon' name for a variety of promotional and commercial purposes, including programs, s posters, clothing iron-ons, product endorsements, television programs, cartoons, and cartoon spin-off products such as lunch boxes and comic books. (DSOF ¶¶ 24-31.) The Globetrotters' 1975 program alone demonstrates the use of Plaintiff Lemon' name in s cartoons, television programs, posters, and on the uniform Plaintiff wore as a player, not to mention in the program itself. (DASOF ¶ 1.) Thus, the Apparel is well within the uses to which Plaintiff' name was put while he was a player. Plaintiff Lemon' failure to object s s
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to the Globetrotters' use of his name and likeness for three decades also constitutes consent for right of publicity purposes. Newton, 22 F.3d at 1461. Plaintiff Lemon has not satisfied the third right of publicity element. Finally, Plaintiff Lemon cannot show injury, the fourth element of a right of publicity claim. His only alleged injury is that he was not compensated "for the use of his name and likeness although, had he consented to the use of his name by entering into his own contract with GTFM, Plaintiff would have been entitled to be compensated." (Lemon SJ Mot. at 10.) Again, Plaintiff' claims completely lack a factual basis; nothing in the s record suggests GTFM ever would have entered into an agreement with Plaintiff Lemon alone, or if it did, whether and how much Lemon would have been compensated. (DASOF ¶ 2.)8 Further, claiming Defendants' profits is not an "injury," but a measure of damages. Solano v. Playgirl, Inc., 292 F.2d 1078, 1090 (9th Cir. 2002) (stating defining measure of damage on right of publicity claim is fair market value of the use of his alleged trademark). Plaintiff seems to recognize this when he states, "HGI kept all profits that Plaintiff would have been entitled to." (Lemon SJ Mot. at 10.) Yet this fact does not show injury, and Plaintiff has not demonstrated any other injury to satisfy the right of publicity elements. (DSOF ¶ 103, Doc 196.) Moreover, Plaintiff has never established the fair market value of, or a reasonable royalty for, the use of his name and likeness. (DSOF ¶ 97, Doc 196; GTFM Statement of Specific Facts ("SSF"), 10/24/05, ¶ 96, Doc 181.)9 Instead, Plaintiff Lemon has purported only to show HGI' profits. (DSOF ¶¶ 96-99, Doc 196.) Plaintiff s has thus neither shown injury, nor a proper damage claim for a right of publicity.
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Plaintiff Lemon makes other unsupported factual claims in this section, such as that HGI "directly competed with" Lemon via the Apparel because he "produces his own products containing his name." (Lemon SJ Mot. at 10.) Yet as the previous section showed, Plaintiff Lemon does not produce any sports apparel. (E.g., DSOF ¶ 115, Doc 196.) Plaintiff Lemon' claims of competition, which are irrelevant to his right of publicity claim in any case, must be s disregarded. 9 Plaintiff Lemon did claim in his deposition that "LeBron James gets in the neighborhood of 90 to 100 million dollars for endorsing Nike. Michael Douglas' wife I think she got 30 million for her case. I should be somewhere in between." (DSOF ¶ 101, Doc 196.) Plaintiff Lemon' claim is unreasonable and unsupported on its face. s
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Plaintiff Lemon has not established a right of publicity claim, and his motion for summary judgment should be dismissed. IV. HGI HAS NOT BEEN UNJUSTLY ENRICHED. Plaintiff Lemon has likewise failed to establish a claim of unjust enrichment. First, and fundamentally, Plaintiff has not even set forth the elements for unjust enrichment: 1) an enrichment; 2) an impoverishment; 3) a connection between the enrichment and impoverishment; 4) absence of justification for the enrichment and impoverishment; and 5) absence of a remedy at law. Stapley v. Am. Bathtub Liners, Inc., 162 Ariz. 564, 568, 785 P.2d 84, 88 (Ct. App. 1984). As the HGI Defendants' motion for summary judgment showed, Plaintiff cannot meet these elements: he has not been impoverished, there was a justification for the use of his name on the Apparel, and Plaintiff has a remedy at law. (HGI SJ Mem., Doc 195, at 22-23 (citing DSOF ¶ 15, 66, 79, 103, Doc 196) .) Plaintiff thus does not even state an unjust enrichment claim. Instead, Plaintiff again focuses on the measure of damages for an unjust enrichment claim, in this case quantum meruit. (Lemon SJ Mot., Doc 107, at 11-12.) And he again makes totally unsubstantiated factual statements, this time supposedly establishing his standing as a celebrity and in the community, and HGI' unjust appropriation of this s standing. (Id. at 12-13.) These summary statements do not factually or legally support the elements of quantum meruit. Thus, not only does Plaintiff fail to assert a claim of unjust enrichment, but he also fails to show he is entitled to damages for that claim. Plaintiff Lemon' unjust enrichment claim is defective, and his motion for summary s judgment must be dismissed. V. PLAINTIFF' FALSE LIGHT INVASION OF PRIVACY CLAIM LACKS S MERIT. Plaintiff Lemon' false light invasion of privacy claim lacks merit, but at least s Plaintiff states the correct legal test: (1) the false light in which the other was placed would
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be highly offensive to a reasonable person, and (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Hart v. Seven Resorts, Inc., 190 Ariz. 272, 280, 947 P.2d 846, 854 (Ct. App. 1997). Plaintiff' analysis is again legally and factually defective. While acknowledging s the stiff legal standard presented by a false light invasion of privacy claim, Plaintiff Lemon isolates a portion of the Godbehere case to argue a that claim is made when the publication of true information creates a false implication about the individual. (Lemon SJ Mot., Doc 197, at 13-14, citing Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 338, 783 P.2d 781, 784 (1989).) Yet as Godbehere goes on to state, there must still be a false innuendo created by the highly offensive presentation of true facts. 162 Ariz. at 341, 783 P.2d at 787. In other words, not all false implications created by true facts are actionable. The present case does not approach a false light cause of action. Lemon' s complained-of "false implication" is that "he endorsed the clothing line on which his name and likeness were featured." (Lemon SJ Mot., Doc 197, at 14.) Even if true-- and Lemon has presented no evidence that consumers thought he endorsed the Apparel (DSOF ¶¶ 95, 96, 150-51, Doc 196)-- it is hard to fathom how this implication would be highly offensive to a reasonable person. In fact, Lemon himself said he thought the Apparel "looked pretty good," (id. ¶ 92) and to this day promotes his ties with the Globetrotters (e.g., id. ¶ 116). Plaintiff Lemon argues that HGI' act of "stealing" his identity is highly offensive, but the s proper question is whether the published information is highly offensive, not the means by which it was published. Plaintiff thus does not satisfy the first prong of a false light invasion of privacy claim. Plaintiff does not even address the second element-- reckless disregard-- a showing he would not be able to make, because HGI possessed (or believed it possessed) the right to sublicense Plaintiff' name for the Apparel. (DSOF ¶¶ 18, 66, 70, s Doc 196.)
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Plaintiff' invasion of privacy claim lacks merit and his motion for summary should s be dismissed. VI. PLAINTIFF LEMON HAS NOT BEEN DEFAMED. Plaintiff Lemon' defamation claim, aside from lacking merit, is positively bizarre. s To start, most of the "facts" Plaintiff cites to "support" the claim are not backed up by any citation to the record in his statement of facts. (RLSOF ¶¶ 78-81, 89-90.) Second, Plaintiff asserts an entirely new defamation claim on summary judgment: that Mannie Jackson made defamatory statements to Ben Green, author of the recent book Spinning the Globe. Plaintiff did not plead this issue (Lemon Compl., Doc 76) and has never stated in discovery that his defamation claim related to anything other than the allegedly defamatory Arizona Republic article. (DSOF ¶¶ 126, 127, Doc 196; DASOF ¶ 3.) Plaintiff cannot allege a new defamation claim for the first time on summary judgment. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000). Even more fundamentally, Plaintiff Lemon does not identify the allegedly defamatory statements that Mannie Jackson supposedly made to Mr. Green. (Lemon SJ Mot., Doc 197, at 15.) And even if defamatory statements had been made, Mr. Lemon does not show or even allege that they were published. (Id.) A more meritless defamation claim can hardly be conceived. As to the Arizona Republic article, Lemon' brief asserts that Mr. Jackson' s s comments-- unactionable on their face (HGI SJ Mem., Doc 195, at 24-25)-- imply Plaintiff possesses a reputation for selfishness (Lemon SJ Mot., Doc 197, at 15-16). The brief then summarily asserts that Plaintiff' reputation and good standing in the community have been s sullied. (Id. at 16.) These claims are not just unsupported by fact, but are actually contradicted by Plaintiff' own testimony. In his deposition, Plaintiff stated he only took s offense to the article because it suggested he was competing against the Globetrotters when he was not. (DSOF ¶ 127, Doc 196.) He asserted no injury, but just made the circular argument that the implication that he was competing against the Globetrotters when he was
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not injured him because he is not competing against the Globetrotters. (Id.) In its strangest turn, Plaintiff Lemon' brief next alleges that Arizona is a community property state, and s that "Mannie Jackson' defamatory statements and conduct were made on behalf of the s community and befitted the community." (Lemon SJ Mot., Doc 197, at 15-16.) One presumes-- but cannot be sure-- that Plaintiff Lemon means Mannie Jackson' allegedly s defamatory comments were made on behalf of himself and his wife and somehow benefited them. This conclusory claim is too absurd to warrant response. Plaintiff' defamation claim should be dismissed and sanctions awarded to the HGI s Defendants for the reasons stated herein and in their motion for Rule 11 sanctions. (HGI Mot. for Sanctions, Doc 215; HGI Mem. in Supp. of Mot. for Sanctions, Doc 216.) VII. HGI' COUNTER-CLAIM AGAINST LEMON. S HGI has counter-claimed against Plaintiff Lemon for infringing on the Globetrotters' registered HAND AND BALL logo. (HGI Ans., Aff. Defenses, & Counterclaim, 10/25/05, Doc 83, at 20.) Plaintiff Lemon' infringing logo appeared on s red, white, and blue basketballs he offered for sale on his website earlier this year. (DSOF ¶¶ 117-118, Doc 196.) Now, however, it appears that Plaintiff Lemon has ceased the sale of the basketballs containing the infringing logo; all links on his website to basketball sales are "dead." (DASOF ¶ 4.) Given that HGI was primarily interested in injunctive relief on its counterclaims, HGI would consent to a dismissal of these claims on the merits without prejudice, since Plaintiff Lemon has ceased the infringing conduct. CONCLUSION For the reasons stated above, the HGI Defendants ask that the Court deny Plaintiff' s motion for summary judgment on his Lanham Act and common law claims, and grant Defendants' motion for summary judgment on these claims for the reasons specified in their memorandum supporting summary judgment. ...
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RESPECTFULLY SUBMITTED this 28th day of November, 2005. By: s/Edward R. Garvey _

Edward R. Garvey, admitted pro hac vice GARVEY McNEIL & McGILLIVRAY, S.C. 634 W. Main St. #101 Madison, WI 53703 Ray Harris, # 007408 FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendants Harlem Globetrotters Int' Inc., l, Harlem Globetrotters Int' l Foundation, and Mannie L. & Catherine Jackson 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 s System for 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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