Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC 8 MEADOWLARK LEMON, a married man, 9 10 vs. PLAINTIFFS FRED "CURLY" NEAL, LARRY 11 HARLEM GLOBETROTTERS INTERNATIONAL, "GATOR" RIVERS, DALLAS "BIG D" INC., an Arizona corporation; HARLEM THORNTON, ROBERT "SHOWBOAT" 12 GLOBETROTTERS INTERNATIONAL HALL, MARQUES HAYNES, AND JAMES FOUNDATION, INC., an Arizona corporation; "TWIGGY" SANDERS' RESPONSE TO 13 MANNIE L. JACKSON and CATHERINE DEFENDANTS FUBU THE COLLECTION, JACKSON, husband and wife; FUBU THE LLC'S AND GTFM OF ORLANDO, LLC 14 COLLECTION, LLC, a New York limited liability d/b/a FUBU COMPANY STORE'S company doing business in Arizona; GTFM, LLC, a RENEWED MOTION FOR SUMMARY 15 New York limited liability company doing business in JUDGMENT Arizona; 16 Defendants. 17 18 FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, 19 ROBERT "SHOWBOAT" HALL, MARQUES HAYNES and JAMES "TWIGGY" SANDERS, 20 Plaintiffs, vs. 21 22 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM 23 GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; 24 MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE 25 COLLECTION, LLC, a New York limited liability 26 company, GTFM of Orlando, LLC; and GTFM, LLC, a New York limited liability company doing business in Arizona, Defendants. Plaintiff, Morgan & Morgan, P. A.th 20 N. Orange Avenue, 16 Floor Orlando, FL 32801 Clay M. Townsend, Esquire Bar No.: 023414 Brandon S. Peters, Esquire Bar No.: 022641 Keith R. Mitnik, Esquire Bar No.: 436127 Attorneys for Plaintiffs

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1 HARLEM GLOBETROTTERS INTERNATIONAL, 2 INC., an Arizona corporation, 3 vs. 4 MEADOWLARK LEMON, a married man, 5 Counterdefendant. 6 7 8 9 10 11 12 13 14 dismiss GTFM of Orlando, LLC and FUBU the Collection, LLC Without Prejudice in accordance with 15 Fed.R.Civ.P 41(a)(1). 16 17 18 19 20 21 22 23 24 notwithstanding Plaintiffs' effort to dismiss these Defendants, material facts which dispute the issue of lack 25 of personal jurisdiction over Defendants. 26 27 28 Plaintiffs then moved this Court to dismiss these parties without prejudice (Doc. #174) but FUBU opposed the Motion (Doc. #177) and submitted evidence. GTFM of Orlando, LLC and FUBU the Collection, LLC have stipulated to the dismissal but insist on Dismissal with Prejudice. Plaintiffs rely on their Statement of Facts filed in Response to the FUBU Defendants' Motion for Summary Judgment. I. FUBU Defendant's Renewed Motion for Summary Judgment should be denied because there are, Pursuant to Fed.R.Civ.P. 56, Plaintiffs, FRED "CURLY" NEAL, LARRY "GATOR" RIVERS, DALLAS "BIG D" THORNTON, ROBERT "SHOWBOAT" HALL, MARQUES HAYNES, and JAMES "TWIGGY" SANDERS (collectively the "Plaintiffs") submit this Memorandum of Law in Response to FUBU Defendants' Renewed Motion for Summary Judgment for lack of personal jurisdiction and to dismiss the claims against FUBU The Collection and GFTM of Orlando, LLC and state: Notwithstanding the evidence herein, Plaintiffs presented a proposed stipulation to all counsel to Counterclaimant,

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II. Defendants have submitted to the jurisdiction of the courts of this state, consented to and/or failed to object to the transfer of the present action to Arizona and therefore are estopped from complaining. FUBU filed a Motion for Summary Judgment on these same or similar issues that was denied on October 4, 2004. I. THE FUBU DEFENDANTS SHOULD NOT BE GRANTED SUMMARY JUDGMENT BECAUSE THEY HAVE WAIVED ANY OBJECTION TO PERSONAL JURISDICTION AND SUBMITTED THEMSELVES TO THE JURISDICTION OF THIS COURT The FUBU Defendants' failure to raise the affirmative defense of lack of personal jurisdiction within the courts of Florida, or to file a Motion to Dismiss for lack of personal jurisdiction, in response to Defendant Harlem Globetrotters International, Inc.'s ("HGI") Motion to Dismiss for Improper Venue, or Alternatively to Transfer Venue, was in clear violation of the Middle District of Florida Local Rule 3.01(b). This failure constitutes a waiver of the affirmative defense and both FUBU the Collection, LLC and GTFM of Orlando, LLC should be estopped from bringing this untimely objection. FUBU Defendants failed to file a Motion to Dismiss in the Florida action and answered the Complaints yet strangely enough, their grounds for the present motion (i.e. that FUBU The Collection is a "mere shareholder", etc.) appear to be the same or similar issues that should have prompted their response in Florida. They did nothing until now.

17 Counsel for the Defendants knew or should have known that HGI's Motion to Transfer to Arizona 18 19 20 21 22 23 24 25 26 Circuit granting a §1404(a) motion to transfer has been declared interlocutory in nature and not appealable 27 prior to final judgment. See In re Kemble, 776 F.2d 802, 806 (9th Cir. 1985); Kasey v. Molybdenum Corp. of America, 28 would result in the transfer of each and every Defendant to the courts of Arizona (the very point of the motion was personal jurisdiction). The district judge in the Middle District of Florida granted the motion to transfer pursuant to Federal Rule of Civil Procedure §1404(a), and ordered that the entire "Florida case" be transferred to this Court on May 12, 2004. The FUBU Defendants certainly had notice concerning the

impending Motion to Transfer. These Defendants self-admittedly took "no position" on the Motion to Transfer. It is a well-known fundamental of transfer pursuant to §1404 that any party transferred must

be subject to the jurisdiction of the foreign jurisdiction. See Fed. R. Civ. P. §1404(a). Furthermore, an order in this

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408 F.2d 16 (9th Cir. 1969). This Motion, couched in terms of summary judgment is not grounded in any legal precedent whatsoever and is simply an attempt to skirt traditional and established legal rules regarding both transfer and personal jurisdiction in general. The Middle District of Florida judge transferred this case to this Court for matters of convenience only after determining that each of the Defendants would have been subject to suit in Arizona had the case

6 been originally raised in this jurisdiction. 7 8 9 10 11 12 13 14 15 16 repeatedly state that FUBU the Collection has never "licensed, developed, manufactured, promoted, sold, 17 distributed and/or exploited the allegedly infringing products." FUBU goes so far as to state that "FUBU 18 19 20 21 22 23 24 25 26 (1) The dispute over whether FUBU the Collection, LLC is the alter ego of GTFM, LLC. 27 28 The Collection" has "never" licensed or developed the infringing products. FUBU's corporate structure and operations reveal there are disputed issues of material fact (also supported by the former content of FUBU's and HGI's own websites). "Fubu.com" and "Harlemglobtrotters.com" revealed that "FUBU the Collection" did indeed market, promote, and distribute the infringing products. The aforementioned websites stated clearly that "FUBU the Collection would become the official outfitter for the Harlem Globetrotters." Other material questions of fact include: jurisdiction which involves minimum contacts and reasonableness. The Florida Court reasoned that, given the relative positions of ALL the parties, (including Defendants FUBU), Arizona was the appropriate jurisdiction. II. THE FUBU DEFENDANTS SHOULD NOT BE GRANTED SUMMARY JUDGMENT BECAUSE THERE ARE DISPUTED MATERIAL FACTS WHICH PROVIDE A BASIS FOR PERSONAL JURISDICTION OVER THE DEFENDANTS The Supreme Court has stated, that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). There are material facts in dispute. Defendants in their Renewed Motion for Summary Judgment Ironically, FUBU Defendants recite the test for personal

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(2) The dispute over the level of corporate control, marketing and management by the "mere shareholder" FUBU the Collection, LLC. Of note is that FUBU the Collection's CEO is the same as GTFM, LLC's. (Ex. "31"). (3) HGI licensed Plaintiff's names to the FUBU Defendants pursuant to an agreement under

which FUBU Defendants sell and market clothing in Arizona as well as Florida and other states. (Ex. "6"). 6 (4) 7 8 9 10 11 12 13 14 15 16 garments from GTFM, L.L.C. (Ex. "26"). 17 b. 18 19 20 21 22 23 24 25 26 used by various entities, and a registered name in the Philippines, where the 27 Securities and Exchange Commission lists six (6) retail outlets in the country. In the 28 d. e. c. same New York address. (Ex. "1(G)" Blenden Tr. 88, 89). FUBU the Collection, L.L.C. is a party to an operating agreement with GTFM, L.L.C. and has functions other than as a mere member of GTFM, L.L.C. (Ex. "27" FUBU Operating Agreement). FUBU the Collection, LLC has performance GTFM of Orlando, L.L.C. is controlled by GTFM, L.L.C. and has offices at the that: a. GTFM of Orlando, L.L.C. bought and distributed FUBU/Harlem Globetrotter business exclusively in Orlando, Florida and does not have any contact with or transact any business in the state of Arizona" is a disputed fact. (5) FUBU Defendants did not oppose the transfer of this action to Arizona and consolidation FUBU Defendant's assertion that one company, GTFM of Orlando, LLC, "conducted

with the LEMON claims. FUBU Defendant's subsequent motion for summary judgment was denied by this Court on September 20, 2004. (6) Discovery subsequent to this Court's denial of FUBU's Summary Judgment motion revealed

obligations under the Agreement. (See Section 6.5, Id.) FUBU the Collection, L.L.C. owns 49% of GTFM, L.L.C.'s Class A Units. (Id). "FUBU the Collection" is an unregistered name or trade name in the United States

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Philippines, the trade name is used on bags, receipts, and signs (this information was not disclosed by the FUBU defendants, but recently discovered by the Plaintiffs). (Ex. "28" Sacks e-mail). "FUBU the Collection" is referred to as a business, not a mere trade name, in the former website of the FUBU defendants. (Ex. "29" FUBU website).

6 g. 7 8 9 10 11 12 13 14 15 16 one of the largest corporations in the world, Aurum via FUBU the Collection, LLC, Wiesfeld, Blenden and 17 Aurum), and never mentioned L.L. Cool J (James Todd Smith), famous hip-hop artist and partner in FUBU. 18 19 20 21 22 23 24 25 26 Globetrotter merchandise, though Aurum couldn't say how much--not even a "ballpark." (Ex. "1(E)" 51). 27 This express acknowledgement is persuasive that there are issues of material fact. 28 (Ex. "1(G)" Blenden Tr. 9; Ex. "1F" Weisfeld Tr. 63; Ex. "1(E)" Aurum Tr. 50-51). L.L. Cool J is suing FUBU in New York, including FUBU the Collection, LLC, the entity that attorney Sacks called an improper party in his threat of sanctions against Plaintiffs, for failure to pay him royalties and dividends and has asserted in pleadings that he is indeed a shareholder. (Ex. "17"). FUBU'S only motive for this outrageous misrepresentation would be to conceal a potentially damaging witness. Additionally, there is evidence that FUBU the Collection, LLC is the alter ego of GTFM, LLC. FUBU the Collection, LLC definitely received 40% of the proceeds from the sale of the allegedly infringing h. 7, Line 1 supra.). Daymond Aurum (CEO of FUU the Collection, LLC) still is the business of registering trademarks. (Ex. "30"). Additionally, FUBU has, usually under oath, misrepresented material facts and frustrated Plaintiffs' discovery. Plaintiffs recently learned that Weisfeld, Aurum and Blenden were deceitful in deposition. They failed to disclose an important stockholder in GTFM, LLC and GTFM, Inc. (the purported entity that "only" holds trademarks), as required under the rules. In sworn testimony, FUBU executives each listed the stockholder owners of GTFM, LLC (Samsung, FUBU has concealed the existence of another shareholder, i.e. "LL Cool J." (See p.

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Recently, in the case of JSP Footwear, Inc. and FUBU the Collection, LLC, 2004 WL 1491647 (Fed. Cir.) June 23, 2004, the court reversed an order denying plaintiff leave to amend his complaint to add GTFM, LLC as the "proper party" even though FUBU the Collection, LLC had not disclosed the GTFM, LLC relationship (the trial court had ruled that the deadline for amendment had passed). Additionally, plaintiff argued that the two companies were alter-egos of each other, and that this confusion and concealment

6 necessitated his late amendment. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By: ____/S/ Clay M. Townsend___________ CLAY M. TOWNSEND, ESQUIRE Florida Bar No.: 363375 KEITH MITNIK, ESQUIRE Florida Bar No.: 436127 BRANDON S. PETERS Florida Bar No.: 965685 Morgan & Morgan, PA 20 N. Orange Avenue, 16th Floor Orlando, FL 32802 Telephone (407) 420-1414 Facsimile (407) 425-8171 Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders Summary judgment for a lack of personal jurisdiction should not be granted by this Court because, while the Defendants claim that the lack of requisite minimum contacts is "beyond legitimate dispute", these claims are supported only by conclusory statements and not affirmative evidence. Accordingly, FUBU Defendants Motion should be denied. DATED THIS 23RD DAY OF NOVEMBER, 2005

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PLEASE TAKE FURTHER NOTICE that copies of the above-referenced documents have been served via first class mail upon the following attorneys: Joel L. Herz, Esquire LAW OFICES OF JOEL L. HERZ LaPolma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tuscon, AZ 85718-3206 Attorney for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM Of Orlando, LLC Edward R. Garvey, Esq. and Christa Westerberg, Esquire GARVEY AND STODDARD 634 W. Main St. #101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation and Mannie L. & Catherine Jackson Anders Rosenquist, Jr., Esquire Florence M. Bruemmer, Esquire ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Safia A. Anand, Esquire Ira S. Sacks, Esquire DREIER, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC Certificate of Service Vanessa Braeley, declares as follows: 1. I hereby certify that on NOVEMBER 23RD, 2005, a true and correct copy of the Plaintiffs' Response to Defendants FUBU the Collection, LLC's and GTFM of Orlando, LLC d/b/a FUBU Company Store's Renewed Motion for Summary Judgment was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Safia Anand ­ [email protected]

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Florence M. Bruemmer ­ [email protected], [email protected] Joel Herz ­ [email protected], [email protected] Ira Sacks ­ [email protected] 2. I am and was at all times mentioned herein a citizen of the United States and a resident of Orange County, Florida, over 18 years of age and not a party to the within action or proceeding. My business address is 20 N. Orange Avenue, 16th Floor, Orlando, FL 32801, and I am employed as a legal assistant by Morgan & Morgan, P.A., Clay Townsend is an attorney admitted to practice in Florida and has been admitted pro hac vice in the District Court of Arizona, and directed that service be made. 3. I hereby certify that on NOVEMBER 23rd, 2005, a true and correct copy of Plaintiffs' Response to Defendants' Renewed Motion for Summary Judgment, postage paid thereon, was sent via U.S. Mail to the following parties, at the addresses listed, to-wit: Joel L. Herz LAW OFFICES OF JOEL L. HERZ LaPolma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tuscon, AZ 85718-3206 Attorney for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM OF Orlando, LLC Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES 80 E. Columbus Phoenix, AZ 85012 Attorney for Plaintiff Lemon Edward R. Garvey Christa Westerberg GARVEY AND STODDARD 634 W. Main Street, Ste. 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Intl Inc. and Harlem Globetrotters Int'l Foundation Safia Anand, Esquire and Ira S. Sacks, Esquire DREIER LLP 499 Park Ave. New York, NY 10022 Attorneys for Defendants, GTFM, LLC, FUBU the Collection, LLC and GTFM of Orlando, LLC 3. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

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1 DATED THIS 23rd DAY OF NOVEMBER, 2005. 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 27 28 Signed: ____/S/Vanessa L. Braeley_________ Vanessa L. Braeley Legal Assistant to Clay Townsend MORGAN & MORGAN, P.A. 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Attorneys for the Plaintiffs Curly Neal, Larry Rivers, Dallas Thornton, Marques Haynes, Robert Hall and James Sanders

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