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 Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

MEADOWLARK LEMON, a married man, Plaintiff, vs.

HARLEM GLOBETROTTERS INTERNATIONAL, PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS' INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL MOTION FOR SANCTIONS UNDER FOUNDATION, INC., an Arizona corporation; FED. R. CIV. P. 11 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.

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

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Plaintiff, Meadowlark Lemon, through undersigned counsel, respectfully submits his Response to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, Inc., and Mannie L. Jackson & Catherine Jackson's (hereinafter collectively as "Defendants") Notice of Motion & Motion for Sanctions Under Fed. R. Civ. P. 11. Plaintiff respectfully requests that the Defendants' Motion be denied for the following reasons. First, Plaintiff would like to bring to the Court's attention that Defendants' Motion for Sanctions is dated September 23, 2005, when in fact the Motion for Sanctions was filed on November 3, 2005. It is apparent that Defendants are attempting to mislead the Court. I. DEFENDANTS' ARGUMENT THAT "PLAINTIFF LEMON'S DEFAMATION CLAIM PATENTLY LACKS A BASIS IN LAW OR FACT" IS IMPROPER FOR A RULE 11 MOTION. Rule 11 is specifically designed to sanction counsel for the filing of papers that are frivolous, lacking in factual support, or "presented for any improper purpose, such as to harass." See Crawford-El v. Britton, 523 U.S. 574, 600 (1998). The purpose of the rule is to deter attorneys from abusing the judicial process. See Willy v. Coastal Corp., 503 U.S. 131, 138 (1992). Rule 11 Motions "should not be employed as a discovery device or to test the legal sufficiency or efficacy of allegations in the pleadings; other motions are available for those purposes." Advisory Committee Notes to Fed. R. Civ. Pro. 11, 1993 Amendments, subdivisions (b) and (c) (emphasis added). Nor should Rule 11 motions be prepared to emphasize the merits of a party's position, to intimidate an adversary into withdrawing contentions that are fairly debatable, or to increase the costs of litigation. Id. (emphasis added). The certification required by Rule 11 is that there is (or likely will be) evidentiary support for the allegation, not that the party will prevail with respect to its contention regarding the fact. Id. (emphasis added). Defendants' position regarding Plaintiff's defamation claim is not proper for a Rule 11 Motion.

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Defendants' argue that Plaintiff should be sanctioned because his "defamation claim patently lacks a basis in law or fact." However, Defendants made this exact same claim in their Motion for Summary Judgment. In their Motion for Summary Judgment, Defendants' argue that Plaintiff's

defamation claim be dismissed because it lacks evidentiary support and that Plaintiff has not been defamed as a matter of law. Defendants claim has been raised in their Motion for Summary Judgment and it is bad faith for them to also assert it in a Motion for Sanctions under Rule 11. In their Rule 11 Motion, Defendants are simply arguing for dismissal of Plaintiff's defamation claim and are clearly attempting to test the legal sufficiency of Plaintiff's claim. Defendants' are using their Rule 11 Motion in an attempt to get summary dismissal of the defamation claim from the Court. That is not the proper use of a Rule 11 Motion. Second, because Defendants' have also raised this argument in their Motion for Summary Judgment, Plaintiff will be responding to this argument on the merits in his response to that motion. Defendants' argument is not proper for a Rule 11 Motion and therefore, Plaintiff will not respond to Defendants' argument here. Lastly, Defendants should be sanctioned for their improper filing of this Rule 11 Motion. The filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. Advisory Committee Notes to Fed. R. Civ. Pro. 11, 1993 Amendments, subdivisions (b) and (c). Service of a cross motion under Rule 11 is not needed since the court may award to the person who prevails on a motion under Rule 11--whether the movant or the target of the motion--reasonable expenses, including attorney's fees, incurred in presenting or opposing the motion. Id. Because

Defendants' Rule 11 Motion is improper, Plaintiff should be awarded his attorney's fees incurred in opposing the motion.

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II.

DEFENDANTS' ARGUMENT THAT "PLAINTIFFS' HAVE IMPROPERLY NAMED THE HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION AND MANNIE AND CATHERINE JACKSON" IS ALSO IMPROPER FOR A RULE 11 MOTION. For the same reasons as stated above, Defendants' position that Plaintiff has improperly named

the Harlem Globetrotters International Foundation and Mannie and Catherine Jackson as defendants is improper for a Motion for Sanctions. Again, Defendants' are improperly using a Rule 11 Motion to argue for dismissal of Harlem Globetrotters International Foundation and Mannie and Catherine Jackson as parties to this lawsuit. Defendants' argument should be properly brought before the court in a motion to dismiss or motion for summary judgment, not through their Motion for Sanctions. Because Defendants' have also raised this argument in their Motion for Summary Judgment Plaintiff will be responding to this argument on the merits in his response to that motion. Defendants' argument is not proper for a Rule 11 Motion and therefore, Plaintiff will not respond to Defendants' argument here. Again, Plaintiff should be awarded his attorney's fees incurred in opposing this motion because Defendants improper filing of this Rule 11 Motion requires that they be sanctioned. III. PLAINTIFF VOLUNTARILY DISMISSED HIS THIRD-PARTY COMPLAINT. Lastly, Defendants' contend that Plaintiff's Answer to HGI's Counterclaim improperly includes a third-party complaint. However, Plaintiff voluntarily dismissed his Third Party Complaint and David Derrington, Ryann Baker, Meadowlark Lemon Harlem Allstars, Inc., and Westwood Marketing, Inc. are no longer parties to this lawsuit. Plaintiff is unsure why Defendants are still asserting in their Motion for Sanctions that Plaintiff has made an improper third-party complaint, and frankly Plaintiff is confused about what assertions Defendants' are making in their argument. First, Defendants were required to contact the Court before the filing of any motions regarding this matter ­ i.e., Plaintiff's answer to Defendants' counterclaim and dismissal of the third-party complaint. After Defendants' filed their Motion for Default on their Counterclaim against Plaintiff, -4Document 233

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Plaintiff contacted the Court and a telephonic conference was held between the Court, Plaintiffs' counsel, and Defendants' counsel. At that telephonic conference the Court instructed Defendants that if they were inclined to file anything regarding the Plaintiff's Answer to the Counterclaim and Third Party Complaint, Defendants were to first contact the Court. However, Defendants did not contact the Court for a conference on this issue prior to the filing of their Rule 11 Motion. Second, even if Plaintiff had not already answered Defendants' counterclaim, that would not be sanctionable and therefore would not be a proper issue for a Rule 11 Motion. The appropriate remedy would be default, not Rule 11 sanctions. Lastly, Plaintiff has properly answered Defendants' counterclaim. The timeline is as follows: Defendants originally stated their counterclaim in their Answer, Affirmative Defenses and Counterclaim. Plaintiff then answered the counterclaim when he filed his Answer, Affirmative

Defenses, and Third-Party Complaint on July 27, 2004. However, Plaintiff then filed Plaintiff's Second Amended Complaint on October 1, 2004. In response to the Second Amended Complaint, Defendants filed an Answer to Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim. However, in Defendants' Answer to Plaintiff's Second Amended Complaint, Defendants' affirmative defenses and counterclaim were word for word identical to the affirmative defenses and counterclaim that Defendants filed in their Answer to the original complaint. There were no amendments made to Defendants' counterclaim filed in its second answer, nor did Defendants ever request leave to amend their counterclaim. Therefore, Plaintiff already answered the counterclaim when he filed his Answer, Affirmative Defenses and Third-Party Complaint on July 27, 2004 and was not required to again answer the unmodified counterclaim that was re-filed by Defendant on October 1, 2004. However, at the insistence of Defendants and in response to their improper Application for Default, Plaintiff simply refiled his answer on August 8, 2005. -5Document 233

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There is no issue with respect to the third-party complaint, which was voluntarily dismissed by Plaintiff long ago. As demonstrated Plaintiff has only filed one answer to Defendants' Counterclaim, and only re-submitted that answer after Defendants erroneously asserted that Plaintiff was in default in an effort to demonstrate to Defendants that Plaintiff had already answered the counterclaim. That resubmittal, which was done only at the insistence of Defendants, did not act to reinstate the third-party complaint, nor did it reinstate the Derrington Defendants as parties to this lawsuit. IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests this Court deny Defendants' Motion for Sanctions. Furthermore, Defendants should be sanctioned themselves for their improper filing of this Rule 11 Motion because the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. As a sanction, Plaintiff respectfully requests that he be awarded his

attorney's fees and costs incurred in opposing Defendants' Motion. DATED this 18th day of November 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 November 18th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS' MOTION FOR SANCTIONS UNDER FED. R. CIV. P. 11 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 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders

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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 18th day of November 2005, at Phoenix, Arizona.

/s/Florence M. Bruemmer Florence M. Bruemmer

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