Free Response in Opposition to Motion - 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 ) ) ) ) ) ) ) ) ) ) )

Case No. CV 04-0299 PHX-DGC Consolidated With Case No. CV 04-1023-PHX-DGC

DECLARATION OF IRA S. SACKS IN PARTIAL OPPOSITION TO PLAINTIFFS'

MOTION TO DISMISS WITHOUT PREJUDICE
IRA S. SACKS declares as follows under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. I am a partner in the firm of Dreier LLP, attorneys for defendants

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FUBU The Collection, LLC and GTFM of Orlando, L.L.C. d/b/a FUBU Company Store ("GTFM of Orlando") (collectively the "FUBU Defendants"). I submit this declaration in Partial Opposition to Plaintiffs' Motion to Dismiss Without Prejudice. 2. Other than as expressly set forth herein, the matters set forth herein are

based on my personal knowledge. 3. 4. These actions were originally filed in February 2004. The FUBU Defendants have maintained that they are not proper parties in

these actions since February 2004; however, until now, they have chosen to ignore the evidence. 5. Over the last 18 months, FUBU The Collection, LLC and GTFM of

Orlando have explained on numerous occasions that this Court does not have personal jurisdiction over them and that FUBU The Collection, LLC is merely a member of GTFM, LLC. 6. On or about July 12, 2004, FUBU The Collection, LLC and GTFM of

14 15 16 17 18 19 20 21 of Daymond Aurum, dated July 2004, submitted in support of FUBU The Collection, LLC's and 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177-2 2 Filed 10/18/2005 Page 2 of 5 GTFM of Orlando's Summary Judgment Motion. There is nothing in the discovery record which disputes any of Mr. Aurum's sworn statements. Orlando filed a motion for summary judgment requesting that this Court dismiss them from the above-referenced actions for lack of personal jurisdiction (the "Summary Judgment Motion"). 7. Attached hereto as Exhibit A is a true and correct copy of an Order, filed

April 8, 2005, extending the deadline for the completion of fact discovery until September 30, 2005. 8. Attached hereto as Exhibit B is a true and correct copy of the Declaration

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9.

Indeed, the FUBU Defendants have explained in detail repeatedly under

oath, and FUBU's counsel have explained in detail, that the claims against these parties are not well grounded in fact or warranted by existing law. 10. Attached hereto as Exhibit C is a true and correct copy of Judge David

Campbell's Order denying FUBU The Collection, LLC's and GTFM of Orlando's Summary Judgment Motion without prejudice, dated October 4, 2004. 11. After FUBU The Collection, LLC's and GTFM of Orlando's Summary

Judgment Motion was denied without prejudice, I continued to explain that the proper party in these actions is GTFM, LLC and not FUBU The Collection, LLC or GTFM of Orlando. 12. It was not until October 1 and October 19, 2004 that Lemon and the

Florida Plaintiffs finally amended their Complaints to add GTFM, LLC, the proper party, as a defendant in these actions.

14 15 16 17 18 19 20 21 Collection, LLC's and GTFM of Orlando's Amended Initial Disclosures pursuant to Rule 26 of 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177-2 3 Filed 10/18/2005 Page 3 of 5 the Federal Rules of Civil Procedure, dated September 16, 2005. 16. Attached hereto as Exhibit E are true and correct copies of pages from the GTFM, LLC. 15. Attached hereto as Exhibit D is a true and correct copy of FUBU The 13. As discovery continued in these actions, FUBU The Collection, LLC and

GTFM of Orlando continued to maintain that there was no personal jurisdiction over them; and FUBU The Collection, LLC continued to maintain that it was otherwise an improper party. 14. The only FUBU party to produce documents in these actions has been

deposition transcript of Bruce Weisfeld, dated August 3, 2005.

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17.

Attached hereto as Exhibit F are true and correct copies of pages from the

deposition transcript of Lawrence Blenden, dated August 2, 2005. 18. Attached hereto as Exhibit G is a true and correct copy of an Order, dated

October 7, 2005, stating that no additional production of documents will be required by the FUBU Defendants related to foreign sales. 19. On September 22, 2005, the FUBU Defendants served a Motion for

Sanctions on the Plaintiffs, along with a cover letter and accompanying Memorandum of Law. 20. On October 11, 2005, Mr. Townsend, counsel for the Florida Plaintiffs,

emailed a Joint Dismissal With Prejudice for GTFM of Orlando to all parties. 21. After the FUBU Defendants and HGI made revisions to the document and

agreed to stipulate to the dismissal of GTFM of Orlando, Mr. Townsend emailed a revised Stipulation, which called for Dismissal of GTFM of Orlando Without Prejudice.

14 15 16 17 18 19 20 21 Collection, LLC. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177-2 4 Filed 10/18/2005 Page 4 of 5 25. Indeed, Mr. Rosenquist, counsel for Lemon, told the FUBU Defendants 22. I made it clear to Mr. Townsend that GTFM of Orlando would not agree

to dismissal without prejudice. 23. No mention was made of dismissing FUBU The Collection, LLC in

that draft Joint Dismissal. 24. The FUBU Defendants were completely unaware that Mr. Rosenquist,

counsel for Meadowlark Lemon, or Mr. Townsend were willing to dismiss FUBU The

that plaintiffs would not dismiss FUBU The Collection, LLC.

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26.

Neither the FUBU Defendants nor HGI have stipulated to the dismissal of

FUBU The Collection, LLC; however, such dismissal is welcome subject to such dismissal being made with prejudice. 27. The FUBU Defendants have been litigating this case for 18 months now.

In that time, the FUBU Defendants have filed one Motion for Summary Judgment, have served plaintiffs with a Motion for Sanctions, have prepared a Second Motion for Summary Judgment ­ which plaintiffs are aware will be filed soon ­ have traveled across the country numerous times for depositions and have attended numerous court conferences both in person and telephonically. 28. This litigation has been unnecessarily expensive and burdensome as a

result of the plaintiffs' vexatious actions. The FUBU Defendants have expended substantial sums of money defending these frivolous actions. Plaintiffs have been aware that their claims are frivolous for over one and one-half years.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177-2 5 Filed 10/18/2005 Page 5 of 5 ____/s/ Ira S. Sacks___________ Ira S. Sacks Dated: New York, New York October 18, 2005 29. Currently, the FUBU Defendants are insured for a portion of the costs of

these actions; however, if these actions were to be relitigated, they may not be insured again. 30. A dismissal without prejudice will be detrimental to the FUBU Defendants

because they have been forced to exert significant time and effort over the last 18 months, even though plaintiffs have been aware that their claims are frivolous for over one and one half years. I declare under penalty of perjury that the foregoing is true and correct.