Free Statement - District Court of Arizona - Arizona

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Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 Attorneys for Defendants FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff/Counterdefendant vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants/Counterclaimants ) ) ) ) ) ) ) ) ) )
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Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

THE FUBU DEFENDANTS' STATEMENT OF SPECIFIC FACTS PURSUANT TO LOCAL RULE 1.10(l)(1) Pursuant to Local Rule 1.10(l)(1) of the United States District Court for the District of Arizona, Defendants FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store ("GTFM of Orlando") (collectively referred to as the "FUBU Defendants")

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submit this Statement of Specific Facts in support of their Renewed Motion for Summary Judgment. The following specific facts are not subject to legitimate dispute: 1. On October 12, 2005, plaintiffs moved to dismiss the FUBU Defendants without

prejudice pursuant to Fed.R.Civ.P. Rule 41(a)(2). (Sacks Decl. ¶ 3). 2. On October 18, 2005, the FUBU Defendants filed a partial opposition to the

7 8 9 10 11 12 13 14 dispositive motions is October 28, 2005 and Plaintiffs' Motion to Dismiss may not be decided by 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 187 2 Filed 10/24/2005 Page 2 of 7
References to "Sacks October 18 Decl." refer to the Declaration of Ira Sacks, dated October 18, 2005, which was filed in support of the FUBU Defendants' Partial Opposition Motion and is attached to the Sacks Decl. as Exhibit 4.
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Plaintiffs' Motion to Dismiss the FUBU Defendants Without Prejudice (the "Partial Opposition") asking (a) that the claims against them be dismissed with prejudice, or in the alternative, (b) that the claims be dismissed without prejudice and (i) plaintiffs be ordered to pay the FUBU Defendants costs, disbursements and attorney's fees to date, or (ii) plaintiffs be enjoined from re-filing these claims against the FUBU Defendants. (Sacks Decl. ¶ 3). 3. The FUBU Defendants are filing this motion because the last date for filing

that time. (Sacks Decl. ¶ 3). 4. Since the beginning of this litigation and throughout the discovery period, FUBU

The Collection, LLC and GTFM of Orlando have explained that this Court does not have personal jurisdiction over them. They are both improper parties in these actions, and the

undisputed discovery record supports their improper status as parties. (Sacks October 18 Decl. ¶¶ 4-6, 9, 11, 13-14).1

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5.

In April 2004, Ira Sacks, counsel for the FUBU Defendants, explained to

plaintiffs' counsel that FUBU The Collection, LLC is not a proper party in these actions because GTFM, LLC entered into a licensing agreement with Harlem Globetrotters International, Inc. ("HGI") on June 1, 2002, wherein HGI licensed to GTFM, LLC the right to use the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who hereafter play for the Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. (Sacks Decl. ¶ 6; Aurum July 2004 Decl. ¶ 5).2 6. On or about July 12, 2004, FUBU The Collection, LLC and GTFM of Orlando

filed their First Motion for Summary Judgment requesting that this Court dismiss them for lack of personal jurisdiction. (Sacks October 18 Decl. ¶ 6). 7. Daymond Aurum is the Co-Founder of the FUBU brand and the Chief Executive

Officer of FUBU The Collection, LLC. (Aurum July 2004 Decl. ¶ 1). 14 15 16 17 18 19 20 21 plaintiffs. (Aurum July 2004 Decl. ¶¶ 3-4). 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 187 3 Filed 10/24/2005 Page 3 of 7
References to "Aurum July 2004 Decl." refer to the Declaration of Daymond Aurum, dated July 2004, which was originally filed with FUBU The Collection, LLC and GTFM of Orlando's First Motion for Summary Judgment. A copy of the Aurum July 2004 Declaration is attached to the Sacks Decl. as Exhibit 3.
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8.

FUBU The Collection, LLC is a limited liability company organized under the

laws of the state of New York. (Aurum July 2004 Decl. ¶ 2). 9. FUBU The Collection, LLC does not manufacture, advertise, or sell FUBU

branded products, does not manufacture, sell or advertise the allegedly infringing products, and has never licensed, developed, created, produced, manufactured, promoted, sold, distributed, and/or exploited any products which might infringe upon the names and likenesses of any of the

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10.

FUBU The Collection, LLC is merely a shareholder of GTFM, Inc. and member

of GTFM, LLC, and does not otherwise do business in Arizona or elsewhere. It has no presence in Arizona. (Aurum July 2004 Decl. ¶ 3). 11. FUBU The Collection, LLC has never licensed, developed, created, produced,

manufactured, promoted, sold, distributed and/or exploited any products that might infringe upon the names and likenesses of any of the plaintiffs. (Aurum July 2004 Decl. ¶ 4). 12. GTFM of Orlando, LLC was the shell company operating the FUBU Company

Store in Orlando, which has since been closed. (Aurum July 2004 Decl. ¶ 7). 13. GTFM of Orlando conducted business exclusively in Orlando, Florida and does

not have any contact with or do or transact any business in the State of Arizona. (Aurum Decl. ¶ 7). 14. There is nothing in the discovery record which disputes any of Mr. Aurum's

14 15 16 17 18 19 20 21 17. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 187 4 Filed 10/24/2005 Page 4 of 7 Plaintiffs finally amended their Complaints to add GTFM, LLC, the proper party, as a defendant in these actions. (Sacks October 18 Decl. ¶ 12). 18. As discovery continued in these actions, FUBU The Collection, LLC and GTFM It was not until October 1 and October 19, 2004 that Lemon and the Florida sworn statements. (Sacks October 18 Decl. ¶ 8). 15. In an order dated October 4, 2004, the FUBU Defendants' First Motion for

Summary Judgment was denied without prejudice. (Sacks October 18 Decl., Exhibit C). 16. The FUBU Defendants continued to explain to plaintiffs that the proper party in

these actions is GTFM, LLC and not FUBU The Collection, LLC or GTFM of Orlando. (Sacks October 18 Decl. ¶ 11).

of Orlando continued to maintain that there was no personal jurisdiction over them and FUBU

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The Collection, LLC continued to maintain that it was otherwise an improper party in this action. (Sacks October 18 Decl. ¶ 13). 19. The only FUBU party to produce documents in this action has been GTFM, LLC.

(Sacks October 18 Decl. ¶ 14). 20. FUBU The Collection, LLC and GTFM of Orlando have submitted Amended

Initial Disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure stating that they have no documents in this action. (Sacks October 18 Decl., Exhibit D). 21. Discovery confirmed that both FUBU The Collection, LLC and GTFM of

Orlando were improper parties and Arizona had no personal jurisdiction over them. (Sacks Decl. ¶ 7). 22. 23. Bruce Weisfeld is the President of GTFM, LLC. (Weisfeld Tr. 7-8).3 FUBU The Collection, LLC does not have anything to do with the Harlem

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Globetrotters apparel or merchandise. (Weisfeld Tr. 7-8). 24. 25. 26. GTFM Inc. is the holding company for the trademark "FUBU". (Weisfeld Tr. 9). GTFM LLC is the licensee of Harlem Globetrotters. (Weisfeld Tr. 9). GTFM, LLC is the only entity that would have anything operationally or

financially to do with the Harlem Globetrotters. (Weisfeld Tr. 8-9). 27. GTFM, Inc. owns all of the trademarks using the word FUBU, of which there are

many. (Blenden Decl. ¶ 5 and Ex. A).4

References to "[Witness] Tr. ___" refer to deposition transcript pages from the deposition of the particular witness, attached to the October 18 Sacks Decl. as Exhibits E-F. References to Blenden Decl. refer to the Declaration of Lawrence Blenden, dated September 21, 2005, which was filed in support of the Partial Opposition Motion and is attached to the Sacks Decl. as Exhibit 5.

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28.

GTFM, Inc. and GTFM, LLC both use the phrase "FUBU The Collection" as a

tradename. (Blenden Decl. ¶ 6). 29. FUBU The Collection, LLC does not use "FUBU The Collection" as a tradename

and products with such labels are marketed by GTFM, LLC (and its sublicensees), and not FUBU The Collection, LLC. (Blenden Decl. ¶ 7). 30. The FUBU Defendants were unaware of any sales of alleged FUBU/HGI

merchandise in the Philippines until the plaintiffs brought it to their attention on or about September 19, 2005. (Blenden October 2005 Decl. ¶ 3).5 31. GTFM, LLC did not receive any royalties or royalty reports as a result of such

sales. (Blenden October 2005 Decl. ¶ 4). 32. Even if the name "FUBU The Collection" is used in the Philippines on stores,

bags, receipts and signs as plaintiffs claim, FUBU The Collection, LLC is not involved. As 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 187 6 Filed 10/24/2005 Page 6 of 7
References to Blenden October 2005 Decl. refer to the Declaration of Lawrence Blenden, dated October 17, 2005, which was filed in support of the Partial Opposition Motion and is attached to the Sacks Decl. as Exhibit 6.
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stated above, FUBU The Collection, LLC does not use "FUBU The Collection" as a tradename and products with such labels are marketed by GTFM, LLC (and its sublicensees), and not FUBU The Collection, LLC. (Blenden Decl.¶ 7; Blenden October 2005 Decl. ¶ 5).

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33.

The FUBU Defendants have made numerous efforts to explain the relationship

between all of the FUBU-related entities; however, plaintiffs' counsel has been unwilling to even attempt to understand the true structure of these entities, rather they have chosen to ignore the evidence that clearly shows that neither FUBU The Collection, LLC nor GTFM of Orlando are properly in these lawsuits. (Sacks October 18 Decl. ¶¶ 4-6, 9, 11, 13-14). DATED: October 24, 2005

____/s/ Ira S. Sacks___________ Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 (Pro Hac Vice) Joel L. Herz, Esq. State Bar Number 015105 La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, Arizona 85718-3206 Telephone: 520-529-8080 Facsimile: 520-529-8077 Attorneys for Defendants FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store

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