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

FUBU THE COLLECTION, LLC'S AND GTFM OF ORLANDO, LLC d/b/a FUBU COMPANY STORE'S MEMORANDUM OF LAW IN PARTIAL OPPOSITION TO PLAINTIFFS' MOTION TO DISMISS WITHOUT PREJUDICE 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"), submit this Memorandum of Law in partial opposition to Plaintiffs' Motion to Dismiss the

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Case 2:04-cv-00299-DGC

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FUBU Defendants from the above-referenced actions without prejudice pursuant to Fed.R.Civ.P. Rule 41(a)(2) (the "Motion"). The FUBU Defendants are gratified that Plaintiffs have finally decided to dismiss their frivolous claims against them, but respectfully request that ­ after 18 months of discovery ­ the dismissal be with prejudice. However, if dismissal is granted without prejudice, the FUBU Defendants respectfully request that the plaintiffs be required to pay the FUBU Defendants' costs, disbursements and attorney's fees to date for these frivolous actions or that plaintiffs be enjoined from refiling these claims against the FUBU Defendants. These lawsuits were filed in February 2004. After 18 months of discovery, the FUBU Defendants welcome the dismissal; however, request that it be conditioned on the plaintiffs not being permitted to sue again ­ which is why a dismissal with prejudice is warranted. Plaintiffs' counsel has been aware for over one and one-half years that there is no legal or factual support for keeping these parties in the lawsuits. That is so because neither

14 15 16 17 18 19 20 21 The FUBU Defendants have expended substantial sums of money litigating these actions 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 2 Filed 10/18/2005 Page 2 of 13 over the last 18 months. They 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 FUBU The Collection, LLC nor GTFM of Orlando has or has ever had any contacts with Arizona. Moreover, FUBU The Collection, LLC is merely a member of GTFM, LLC and has not used plaintiffs' alleged intellectual property in any way. Both before and after the prior motion was made to dismiss these claims ­ which this Court denied without prejudice to renewal after discovery ­ plaintiffs' counsel have known that the claims are baseless and made without competent and reasonable inquiry.

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for depositions and have attended numerous court conferences both in person and telephonically. Plaintiffs should not be permitted to re-inflict that travesty on the FUBU Defendants. The actions against the FUBU Defendants should be dismissed with prejudice. If not, the plaintiffs should be required to pay the FUBU Defendants expenses to date for these frivolous actions or enjoined from refiling these claims against the FUBU Defendants. FACTUAL BACKGROUND These actions were originally filed in February 2004. (Sacks Decl. ¶3). Discovery closed on September 30, 2005. (Sacks Decl. Ex. A). 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. (Sacks Decl. ¶5). The FUBU Defendants have continued to assert that they are improper parties in this action. And the undisputed discovery record supports their

14 15 16 17 18 19 20 21 of the FUBU brand and the Chief Executive Officer of FUBU The Collection, LLC explained 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 3 Filed 10/18/2005 Page 3 of 13 under oath that FUBU The Collection, LLC is a limited liability company organized under the improper status as parties. The FUBU Defendants have maintained that they are not proper parties in these actions since February 2004. (Sacks Decl. ¶4). On or about July 12, 2004, FUBU The Collection, LLC and GTFM of Orlando filed a motion for summary judgment requesting that this Court dismiss them from the above-referenced actions for lack of personal jurisdiction ("Summary Judgment Motion"). (Sacks Decl. ¶6). In the Summary Judgment Motion, Daymond Aurum, Co-founder

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laws of the state of New York (Aurum July 2004 Decl. ¶¶ 1-2).1 Mr. Aurum further explained that 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). Mr. Aurum declared further that 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 plaintiffs. (Aurum July 2004 Decl. ¶¶ 3-4). Moreover, Mr. Aurum explained that GTFM of Orlando, although not dissolved, was the shell company operating the FUBU Company Store in Orlando, which has since been closed. (Aurum July 2004 Decl. ¶ 7). GTFM of Orlando conducted business exclusively in Orlando,

14 15 16 17 18 19 20 21 Collection, LLC or GTFM of Orlando. (Sacks Decl. ¶11). It was not until October 1 and 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 4 Filed 10/18/2005 Page 4 of 13
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's and GTFM of Orlando's Summary Judgment Motion. A copy of the Aurum July 2004 Declaration is attached to the Sacks Decl. as Exhibit B.
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Florida and does not have any contact with or do or transact any business in the State of Arizona. (Aurum Decl. ¶ 7). There is nothing in the discovery record which disputes any of Mr.

Aurum's sworn statements. (Sacks Decl. ¶ 8). In an order dated October 4, 2004, this Court denied the Summary Judgment Motion without prejudice. (Sacks Decl., Exhibit C). Thereafter, Mr. Sacks continued to explain to Plaintiffs' counsel that the proper party in these actions is GTFM, LLC and not FUBU The

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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. (Sacks Decl. ¶12). 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. Indeed, the only FUBU party to produce documents in these actions has been GTFM, LLC. 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. (Sacks Decl. ¶¶ 13-14; Sacks Decl., Exhibit D). Discovery confirmed that both FUBU The Collection, LLC and GTFM of Orlando were improper parties. For example, at the deposition of Bruce Weisfeld, the President of GTFM, LLC, he testified that the FUBU The Collection, LLC does not have anything to do with the

14 15 16 17 18 19 20 21 The Collection, LLC was merely a member of GTFM, LLC. (Blenden Tr. 8-9). He stated that 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 5 Filed 10/18/2005 Page 5 of 13
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Harlem Globetrotters apparel or merchandise. (Weisfeld Tr. 7-8).2 Mr. Weisfeld testified further that "GTFM Inc. is the holding company for the trademark FUBU" and that "GTFM LLC is the licensee of Harlem Globetrotters." (Weisfeld Tr. 9). Mr. Weisfeld testified further that GTFM, LLC is the only entity that would have anything operationally or financially [to] do with the Harlem Globetrotters. (Weisfeld Tr. 8-9). Furthermore, Lawrence Blenden, General Counsel for GTFM, LLC testified that FUBU

References to "[Witness] Tr. ___" refer to deposition transcript pages from the deposition of the particular witness, attached to the Sacks Decl. as Exhibits E-F.

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GTFM of Orlando "was the entity that owned and operated an outlet store for FUBU clothing" and the only member of GTFM of Orlando is GTFM, LLC. (Blenden Tr. 88-89). As has been repeatedly explained to plaintiffs' counsel, GTFM, Inc. owns all of the trademarks using the word FUBU, of which there are many. (Blenden Decl.¶ 5 and Ex. A). GTFM, Inc. and GTFM, LLC both use the phrase "FUBU The Collection" as a tradename. (Blenden Decl.¶ 6). 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). Plaintiffs make much of certain sales in the Philippines. Conduct in the Philippines does not confer personal jurisdiction in Arizona. 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. GTFM, LLC did not receive any royalties or royalty reports as

14 15 16 17 18 19 20 21 The Collection, LLC. (Blenden Decl.¶ 7; Blenden October 2005 Decl. ¶5). 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 6 Filed 10/18/2005 Page 6 of 13 As noted by Plaintiffs in their motion to dismiss ­ a fact which would have not been mentioned by the FUBU Defendants if Plaintiffs had not done so ­ on September 22, 2005, the FUBU Defendants served ­ but did not file ­ plaintiffs with a motion for sanctions, explaining as required by Rule 11 that the motion would be filed if Plaintiffs did not voluntarily dismiss the a result of such sales. (Blenden October 2005 Decl. ¶¶3-4). Moreover, this Court has already

ruled that all discovery on foreign sales is closed. (Sacks Decl. Ex. G). 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 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

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FUBU Defendants. (Sacks Decl. ¶19). Thereafter, on October 11, 2005, Mr. Townsend emailed a Joint Dismissal With Prejudice for GTFM of Orlando to all parties. (Sacks Decl. ¶20). 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. (Sacks Decl. ¶21). Mr. Sacks made it clear to Mr. Townsend that GTFM of Orlando would not agree to dismissal without prejudice. (Sacks Decl. ¶22). Shortly thereafter, Mr. Townsend filed this Motion. No mention was made of dismissing FUBU The Collection, LLC in that draft Joint Dismissal. (Sacks Decl. ¶23). The FUBU Defendants were completely unaware that Mr. Rosenquist or Mr. Townsend were willing to dismiss FUBU The Collection, LLC. (Sacks Decl. ¶24). 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

14 15 16 17 18 19 20 21 (Sacks Decl. ¶27). This litigation has been unnecessarily expensive and burdensome as a result 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 7 Filed 10/18/2005 Page 7 of 13 of the plaintiffs' vexatious actions. (Sacks Decl. ¶28). 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. (Sacks Decl. ¶29). To allow plaintiffs to dismiss these parties now and then re-file would be an abuse of the legal process. prejudice. (Sacks Decl. ¶26). 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.

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THE DISMISSAL SHOULD BE WITH PREJUDICE PURSUANT TO FED.R.CIV.P. RULE 41(A)(2)
"Rule 41(a)(2) provides that, except where all parties agree to a stipulation of dismissal, `an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.'" Zagano v. Fordham University, 900 F.2d 12, 14 (2d Cir. 1990). "Voluntary dismissal without prejudice is thus not a matter of right." Id. When determining whether or not to grant a motion to dismiss without prejudice Courts look to the following factors: (1) the plaintiff's diligence in bringing the motion; (2) any "undue vexatiousness" on plaintiff's part; (3) the extent to which the suit has progressed, including defendant's effort and expense in preparation for trial; (4) the duplicative expense of relitigation; and (5) the adequacy of plaintiff's explanation for the need to dismiss. Id. (affirming denial of the Rule 41(a)(2) motion because the motion was made after the action had been pending for over four years and defendants would be prejudiced because of the resources they had spent in preparing for trial; Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir. 1969)(dismissal without prejudice properly denied where the case had been pending for one and one-half years, considerable discovery had been undertaken at substantial cost to the defendant and defendant

18 19 20 21 22 23 24 25 Chemical Co., 343 F.3d 325, 330 (5th Cir. 2003)(citation omitted)(where plaintiff filed his 26 27 28 Case 2:04-cv-00299-DGC Document 177 motion to dismiss nine months after filing suit, after both sides had filed responsive pleadings in 8 Filed 10/18/2005 Page 8 of 13 had already briefed its motion for summary judgment); Burnette v. Godshall, 828 F.Supp. 1439, 1443-44 (N.D. Cal 1993)(dismissing a RICO claim with prejudice where defendants should not have incurred significant expense in responding to a frivolous claim). Indeed, in a case cited by plaintiffs in their Motion, the Court stated "[w]hen a plaintiff fails to seek dismissal until a late stage of trial, after the defendant has exerted significant time and effort, then a court may, in its discretion, refuse to grant a voluntary dismissal." U.S. v. Dow

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addition to motions to compel, motions for expedited hearing, motions to dismiss, motions for oral arguments, and a motion for rehearing, where the parties had attended several conferences for purposes of scheduling discovery, it was not abuse of discretion for the district court to deny the motion to dismiss without prejudice under Rule 41(a)(2)). The claims against the FUBU Defendants should be dismissed with prejudice. Here, declarations, testimony and counsel for the FUBU Defendants have repeatedly made plain to plaintiffs' counsel the relationship between the various FUBU-related entities; however, until now, plaintiffs' counsel have chosen to ignore the discovery record and sworn declarations. A review of the relevant factors illustrates that justice would only be served if the FUBU Defendants were dismissed with prejudice. First, the plaintiffs were not diligent in bringing this Motion. Plaintiffs have known for 18 months that the FUBU Defendants were not properly in these lawsuits; however, until now,

14 15 16 17 18 19 20 21 that "GTFM Inc. is the holding company for the trademark FUBU" and that "GTFM LLC is the 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 9 Filed 10/18/2005 Page 9 of 13 licensee of Harlem Globetrotters" (Weisfeld Tr. 9), plaintiffs' counsel maintains in their Motion that "FUBU The Collection is referred to as a business, not a mere trade name and that it is a registered name in the Philippines, where the Securities and Exchange Commission lists six (6) retail outlets in the country." (Plaintiffs' Motion ¶¶ 3(e)-(f)). This is false. they have chosen to ignore the evidence. (Sacks Decl. ¶4). Throughout the discovery process, plaintiffs were aware that the FUBU Defendants did not have a presence in Arizona and were improper parties. For example, in August 2005, Mr. Weisfeld, the President of GTFM, LLC, testified that the FUBU The Collection, LLC does not have anything to do with the Harlem Globetrotters apparel or merchandise. (Weisfeld Tr. 7-8). Moreover, even though Mr. Weisfeld testified

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Furthermore, despite the fact that Mr. Weisfeld testified that GTFM, LLC is the only entity that would have anything operationally or financially [to] do with the Harlem Globetrotters, (Weisfeld Tr. 8-9), plaintiffs state in their Motion that "FUBU The Collection, LLC ... has functions other than as a mere member of GTFM, LLC." (Plaintiffs' Motion ¶ 3(c)). Again, to the extent relevant to this case, this is false. Daymond Aurum, Co-founder of the FUBU Brand and CEO of FUBU The Collection, LLC has submitted several declarations in these actions swearing that FUBU The Collection, LLC is a limited liability company organized under the laws of the state of New York. Mr.

Aurum explained under oath that 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). Mr. Aurum also noted that FUBU The Collection, LLC does not manufacture, advertise, or sell FUBU branded products, does not

14 15 16 17 18 19 20 21 ¶7). GTFM of Orlando conducted business exclusively in Orlando, Florida and does not have 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 10 Filed 10/18/2005 Page 10 of 13 any contact with or do or transact any business in the State of Arizona. It is clear that plaintiffs were not diligent in bringing this Motion. Second, plaintiffs' actions have been unduly vexatious over the last 18 months. Although plaintiffs' counsel may not have believed FUBU's counsel's explanations that FUBU (Aurum Decl. ¶ 7). 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 plaintiffs. (Aurum July 2004 Decl. ¶¶ 1-4). Moreover, Mr. Aurum explained that GTFM of Orlando was the shell company operating the FUBU Company Store in Orlando, which has since been closed. (Aurum July 2004 Decl.

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The Collection, LLC and GTFM of Orlando were improper parties when the lawsuits were first filed, they continued to advocate positions against these parties despite undisputed proof that these positions are false ­ until now. Plaintiffs bring this Motion now in a transparent attempt to avoid being sanctioned. The claims against FUBU The Collection, LLC and GTFM of Orlando are frivolous ­ they are baseless and made without competent and reasonable inquiry. 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. (Sacks Decl. ¶9). Moreover, Plaintiffs inaccurately state in their Motion that "GTFM of Orlando, LLC and FUBU The Collection, LLC have stipulated to the dismissal but insist on Dismissal With Prejudice." (Plaintiffs' Motion ¶6). The FUBU Defendants appreciate that the plaintiffs have

14 15 16 17 18 19 20 21 A dismissal without prejudice will be detrimental to the FUBU Defendants because they have 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 11 Filed 10/18/2005 Page 11 of 13 exerted significant time and effort. Indeed, plaintiffs have been aware that their claims are frivolous for over one and one-half years. (Sacks Decl. ¶¶28, 30). finally decided to dismiss FUBU The Collection, LLC. Until this Motion, plaintiffs never offered to dismiss FUBU The Collection, LLC. Indeed, Mr. Rosenquist, counsel for Lemon, told the FUBU Defendants that plaintiffs would not dismiss FUBU The Collection, LLC. (Sacks Decl. ¶25). Third, these lawsuits have been going on for 18 months, discovery has ended and the FUBU Defendants have expended substantial sums of money defending these frivolous actions.

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Furthermore, the expense of relitigation will be highly prejudicial. Currently, the FUBU Defendants are insured for a portion of the costs of these actions; however, if these suits were to be relitigated, the FUBU Defendants might not be insured again. (Sacks Decl. ¶29). Additionally, plaintiffs have not stated any need to dismiss these actions without prejudice except that "The FUBU Defendants moved this Court for Rule 11 Sanctions if GTFM of Orlando, LLC and FUBU The Collection, LLC was not dismissed from this suit." Apparently, the sole reason plaintiffs have chosen to move to dismiss the FUBU Defendants after 18 months is that they fear the FUBU Defendants will file their motion for sanctions. For the foregoing reasons, the actions against the FUBU Defendants should be dismissed with prejudice. However, if this Court concludes to dismiss the claims against the FUBU Defendants without prejudice, the FUBU Defendants request that plaintiffs be required to pay the

14 15 16 17 18 19 20 21 As stated above, the FUBU Defendants have been required to expend substantial amounts 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 177 12 Filed 10/18/2005 Page 12 of 13 of money in litigating these actions. To date, they have already filed one motion for summary judgment, have briefed a second motion for summary judgment, have been involved in numerous depositions across the country and have attended numerous Court conferences both in person and telephonically. (Sacks Decl. ¶27). Plaintiffs have been aware that these actions were frivolous substantial attorney's fees, disbursements and costs that they have incurred in litigating these actions, or that plaintiffs be enjoined from re-filing these claims against the FUBU Defendants. "Where an action is dismissed without prejudice, the court may impose costs and attorney's fees on the plaintiff." Atari Corp. v. 3Do Co., No. CV-94-20298, 1994 WL 665359, at *2 (N.D. Cal. 1994). "The purpose of awarding these fees is to compensate the defendant for the unnecessary expense that the litigation has caused." Id.

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since these actions were commenced. (Sack Decl. ¶28). Plaintiffs have never had any basis for asserting that the FUBU Defendants had a presence in Arizona. Thus, if the FUBU Defendants are not dismissed with prejudice, plaintiffs should be required to pay for their costs, disbursements and attorney's fees to date or plaintiffs should be enjoined from re-filing these claims against the FUBU Defendants. CONCLUSION For the foregoing reasons, the actions against the FUBU Defendants should be dismissed with prejudice; however, if these actions are dismissed without prejudice, the FUBU Defendants request that plaintiffs be required to pay their costs, disbursements and attorney's fees to date or plaintiffs be enjoined from re-filing these claims against the FUBU Defendants. Dated: October 18, 2005 ____/s/ Ira S. Sacks___________ IRA S. SACKS, ESQUIRE SAFIA A. ANAND, ESQUIRE Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 (Pro Hac Vice) JOEL L. HERZ, ESQUIRE 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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Case 2:04-cv-00299-DGC