Free Amended Answer to Complaint - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Tel. 480-488-0102 Fax 480-488-2075 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MEADOWLARK LEMON, a married man, Plaintiff, vs.

No. CV '04 0299 PHX DGC

COUNTERDEFENDANT LEMON'S HARLEM GLOBETROTTERS INTERNATIONAL, SECOND FILED ANSWER TO INC., an Arizona corporation; HARLEM COUNTERCLAIM DUE TO GLOBETROTTERS INTERNATIONAL COUNTER-CLAIMANT'S IMPROPER FOUNDATION, INC., an Arizona corporation; AND MERITLESS APPLICATION FOR MANNIE L. JACKSON and CATHERINE ENTRY OF DEFAULT AGAINST JACKSON, husband and wife; FUBU THE COUNTERDEFENDANT LEMON 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.

19 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, 20 Counter-claimant, 21 vs. 22 MEADOWLARK LEMON, a married man, 23 Counterdefendant. 24 25 26 MEADOWLARK LEMON, a married man,

Case 2:04-cv-00299-DGC

Document 144

Filed 08/08/2005

Page 1 of 17

1 2 vs.

Third-party Plaintiff,

3 DAVID DERINGTON, an unmarried man; RYANN BAKER, an unmarried woman; MEADOWLARK 4 LEMON HARLEM ALLSTARS, INC., a Nevada corporation; WESTWOOD MARKETING, INC., a 5 Nevada corporation; 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -2Document 144 ANSWER Plaintiff/Counterdefendant Meadowlark Lemon (hereinafter "Plaintiff" or "Counterdefendant"), hereby responds to Counter-claimant's Application for Entry of Default Against Counterdefendant Lemon by stating that Counterdefendant has already answered the counterclaim filed by Counterclaimant. Counter-claimant originally stated its counterclaim in its Answer, Affirmative Defenses and Counterclaim. Counterdefendant then answered the counterclaim when he filed his Answer, Affirmative Defenses, and Third-Party Complaint on July 27, 2004. However, Counterdefendant then filed Third-party Defendants.

Plaintiff's Second Amended Complaint on October 1, 2004. In response to the Second Amended Complaint, Counter-claimant filed an Answer to Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim. However, in Counter-claimant's Answer to Plaintiff's Second Amended Complaint, Counter-claimant's affirmative defenses and counterclaim were word for word identical to the affirmative defenses and counterclaim that Counter-claimant filed in its Answer to the original complaint. There were not any amendments made to Counter-claimant's counterclaim filed in its second answer, nor did Counter-claimant ever request a leave to amend its counterclaim. Therefore,

Counterdefendant has already answered the counterclaim when he filed his Answer, Affirmative

Case 2:04-cv-00299-DGC

Filed 08/08/2005

Page 2 of 17

1 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

Defenses and Third-Party Complaint on July 27, 2004 and was not required to again answer the unmodified counterclaim that was re-filed by Counter-claimant on October 1, 2004. However,

Counterdefendant will again file his answer to the counterclaim in response to Counter-claimant's Application for Entry of Default. Therefore, Plaintiff Meadowlark Lemon by his attorneys, and for the second time, hereby files his Answer, Affirmative Defenses and Third-party Complaint, and states and alleges as follows: 1. In response to ¶ 1 of Defendants/Counterclaimants, Harlem Globetrotter Internation, Inc. and Harlem Globetrotter International Foundation, Inc.'s (hereinafter "HGI") counterclaim,

Counterdefendant denies the allegations regarding deliberate adoption and use of logos strikingly similar to HGI's; the remainder of this allegation states conclusions of law to which no answer is necessary. 2. In response to ¶ 2, this allegation states conclusions of law to which no answer is necessary. 3. In response to ¶ 3, Counterdefendant admits that he resides in the district; the remainder of this allegation contains conclusions of law to which no answer is necessary. 4. In response to ¶ 4, Counterdefendant admits the allegations. 5. In response to ¶ 5, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 6. In response to ¶ 6, Counterdefendant admits the allegations. 7. In response to ¶ 7, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 8. In response to ¶ 8, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 9. In response to ¶ 9, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies.

Case 2:04-cv-00299-DGC

-3Document 144

Filed 08/08/2005

Page 3 of 17

1 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

10. In response to ¶10, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 11. In response to ¶ 11, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 12. In response to ¶ 12, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 13. In response to ¶ 13, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 14. In response to ¶ 14, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 15. In response to ¶ 15, Counterdefendant admits the allegations. 16. In response to ¶ 16, Counterdefendant denies the allegations. 17. In response to ¶ 17, Counterdefendant denies the allegations. 18. In response to ¶ 18, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 19. In response to ¶ 19, Counterdefendant denies the allegations. 20. In response to ¶ 20, Counterdefendant incorporates his answers to Paragraphs 1 through 19. 21. In response to ¶ 21, Counterdefendant denies the allegations. 22. In response to ¶ 22, Counterdefendant denies the allegations. 23. In response to ¶ 23, Counterdefendant denies the allegations. 24. In response to ¶ 24, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 25. In response to ¶ 25, Counterdefendant denies the allegations.

Case 2:04-cv-00299-DGC

-4Document 144

Filed 08/08/2005

Page 4 of 17

1 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

26. In response to ¶ 26, Counterdefendant denies the allegations. 27. In response to ¶ 27, Counderdefendant denies the allegations. 28. In response to ¶ 28, Counterdefendant denies the allegations. 29. In response to ¶ 29, Counterdefendant incorporates his answers to Paragraphs 1 through 28. 30. In response to ¶ 30, Counterdefendant denies the allegations. 31. In response to ¶ 31, Counterdefendant denies the allegations. 32. In response to ¶ 32, Counterdefendant denies the allegations. 33. In response to ¶ 33, Counterdefendant denies the allegations. 34. In response to ¶ 34, Counterdefendant incorporates his answers to Paragraphs 1 through 33. 35. In response to ¶ 35, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 36. In response to ¶ 36, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 37. In response to ¶ 37, Counterdefendant is without knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 38. In response to ¶ 38, Counterdefendant denies the allegations. 39. In response to ¶ 39, Counterdefendant denies the allegations. 40. In response to ¶ 40, Counterdefendant denies the allegations. 41. In response to ¶ 41, Counterdefendant denies the allegations. 42. In response to ¶ 42, Counterdefendant denies the allegations. AFFIRMATIVE DEFENSES A. As and for an affirmative defense, Counterdefendant alleges that Claims I-III fail to state a claim upon which relief may be granted and should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

Case 2:04-cv-00299-DGC

-5Document 144

Filed 08/08/2005

Page 5 of 17

1 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

B. Laches C. Estoppel D. Equitable Estoppel E. Lack of Subject Matter Jurisdiction F. Improper Venue G. Waiver H. Fraud I. Failure to join a party under Ariz. R. Civ. Pro., Rule 19.

THIRD-PARTY COMPLAINT 1. Plaintiff Meadowlark Lemon (hereinafter "Plaintiff") is an individual and resident of Maricopa County, Arizona. 2. Defendant David Derington (hereinafter collectively with other party Defendants called "Defendants" or individually "Derington") is a resident of California and has committed actions in Arizona such that Derington is purposely availing himself of the jurisdiction of this Court. 3. Defendant Ryann Baker (hereinafter collectively with other party Defendants called "Defendants" or individually "Baker") is a resident of California and has committed actions in Arizona such that Baker is purposely availing herself of the jurisdiction of this Court. 4. Upon information and belief, Defendant David Derington is the Director of Meadowlark Lemon Allstars, Inc. and Westwood Marketing, which are Nevada corporations conducting business in Arizona such that Derington is purposefully availing himself of the privilege of conducting business activities within Arizona. 5. Upon information and belief, Defendant Baker is the Director of Meadowlark Lemon Allstars, Inc. and Westwood Marketing, which are Nevada corporations conducting business in

Case 2:04-cv-00299-DGC

-6Document 144

Filed 08/08/2005

Page 6 of 17

1 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

Arizona such that Baker is purposefully availing herself of the privilege of conducting business activities within Arizona. 6. Upon information and belief, Defendant Meadowlark Lemon Harlem Allstars, Inc. (hereinafter collectively with other party Defendants called "Defendants" or individually "Harlem Allstars") is a Nevada corporation conducting business in Arizona such that it is purposefully availing himself of the privilege of conducting business activities within Arizona. 7. Defendant Westwood communications (hereinafter collectively with other party Defendants called "Defendants" or individually "Westwood") is a Nevada corporation conducting business in Arizona such that it is purposefully availing himself of the privilege of conducting business activities within Arizona. 8. This action arises under the Lanham Trademark Act of 1946, 15 U.S.C. § 1051, et seq. (the "Lanham Act"), and the common law of the State of Arizona. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332 and 1338, 15 U.S.C. § 1121, and the law of supplemental jurisdiction. 9. The venue of this action is properly laid in the District of Arizona pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1392(a). 10. The amount in controversy exceeds, exclusive of interest and costs, the sum of $75,000.00. GENERAL ALLEGATIONS 11. Plaintiff, at one time, beginning in and around the 1970's, was employed in various capacities, including playing basketball, coaching and doing public relations for various and different companies owning the "Harlem Globetrotters", and is well known for his work in basketball, film, television, advertising, print media and charitable causes.

Case 2:04-cv-00299-DGC

-7Document 144

Filed 08/08/2005

Page 7 of 17

1 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

12. Plaintiff has no agreements with Defendants, nor any other person, party or entity, allowing license or use of his identity, attributes of identity, name, images, likenesses on merchandise or goods or products on the internet or otherwise. 13. Upon information and belief, Defendants have licensed, developed, created, produced, manufactured, marketed, promoted, sold, distributed and exploited products, goods and other merchandise on the internet or otherwise without Plaintiff's authorization or consent. 14. Upon information and belief, the use and exploitation of these goods, products, and merchandise, and the related promotion, public relations and marketing campaign used Plaintiff's name, image, likeness, goodwill and notoriety on the internet or otherwise, were and are willful, reckless, and outrageous. 15. Upon information and belief, Defendants have exploited Plaintiff's name, images, likenesses, goodwill and notoriety without permission 16. Upon information and belief, Defendants have continued and in the future will use Plaintiff's name, image, jersey number, likenesses, goodwill and notoriety for their own commercial benefit in the conduct of their business without Plaintiff's consent or authority. 17. The misuse of Plaintiff's name, image, likeness, goodwill and notoriety has and continues to cause Plaintiff to suffer mental anguish. 18. The misuse of Plaintiff's name, image, likeness, goodwill and notoriety casts Plaintiff in a false light. 19. The use by Defendants of Plaintiff's name, likeness, notoriety and goodwill is not symbolic or metaphoric, nor does it contain substantive information or creative content but is for trade, advertising, commercial exploitation to engender sales and for exploitation for consideration.

Case 2:04-cv-00299-DGC

-8Document 144

Filed 08/08/2005

Page 8 of 17

1 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

20. Plaintiff first became aware of Defendant's actions in or about the end of 2003. These actions include, but are not limited to, selling basketballs purporting to be signed by Plaintiff with a logo similar to trademarks purported to be owned by the Harlem Globetrotters International, Inc., collecting money for Plaintiff's charitable foundation, operating a website, forming corporations utilizing Plaintiff's name, purporting to add Plaintiff as a director to these corporations, and registering other domain names utilizing Plaintiff's name. 21. On December 23, 2003, Plaintiff's counsel sent a letter to Defendants requesting any and all documentation which they are relying on that gives Defendants or any other entity authorization to use Plaintiff's name, image, likeness, number, notoriety, and goodwill.

COUNT I FEDERAL UNFAIR COMPETITION/ FALSE DESIGNATION OF ORIGIN AND MISAPPROPRIATION (ALL DEFENDANTS) 22. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 21 of his Complaint as if fully set forth herein. 23. This claim arises under Section 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a). 24. In or about 2003, Defendants commenced the manufacture, promotion, use and distribution of a merchandise through a website bearing and in connection with Plaintiff's name, jersey number, image and likeness, which products have been marketed, offered for sale and sold in interstate commerce in the United States. 25. In or about 2003, Defendants published a website, utilizing Plaintiff's name, and used said website to sell merchandise bearing Plaintiff's name without permission.

Case 2:04-cv-00299-DGC

-9Document 144

Filed 08/08/2005

Page 9 of 17

1 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

26. In or about 2003, Defendants formed corporations utilizing Plaintiff's name, purporting to add Plaintiff, through use of his name, to these corporations, and registering other domain names utilizing Plaintiff's name. 27. As a result of such unauthorized activities, both the trade and the public at large have come to identify Defendants products, goods, merchandise, websites and corporations with Plaintiff. Plaintiff has not approved or authorized the Defendants' activities. 28. Without the authority or approval of Plaintiff, Defendants have embarked upon an unlawful course of conduct intended to mislead and deceive the public, deprive Plaintiff of the rights and benefits of his name, image, likeness, goodwill and notoriety and accrue the same to themselves. In addition to the unlawful acts complained of elsewhere herein, Defendants have among other things, used Plaintiff's name, image, likeness, goodwill and notoriety so as to cause the public to erroneously believe that, or to falsely imply that, their products, goods, merchandise, websites and corporations are associated with or sponsored and endorsed by Plaintiff, when in fact they are not. 29. Defendants illegal actions have caused Plaintiff to be sued by Harlem Globetrotters International, Inc. (hereinafter "HGI") because HGI believes Plaintiff is responsible for the sale of basketballs with Harlem Globetrotters International, Inc.'s hand and ball trademark purported to be owned and utilized by Harlem Globetrotters International, Inc. 30. Defendants, by misappropriating and unlawfully using Plaintiff's name, image, likeness, goodwill and notoriety have confused and are likely to confuse the public, and such conduct constitutes unfair competition and a false designation of origin and a false description or representation, and is calculated and intended to deceive and is likely to deceive consumers into believing that Defendants products, goods and merchandise originate from or have the approval or authorization of Plaintiff.

Case 2:04-cv-00299-DGC

-10Document 144 Filed 08/08/2005

Page 10 of 17

1 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

31. Upon information and belief, Defendants have undertaken a concerted scheme, plan and course of conduct, alone or with others as yet unascertained, to trade upon Plaintiff's reputation and goodwill by means of misappropriating and infringing Plaintiff's name, image and likeness. Plaintiff is informed and believes, and on that basis alleges, that Defendants have committed the acts alleged herein intentionally, fraudulently, maliciously, willfully, wantonly and oppressively. 32. Defendants' false and unlawful representations have resulted in actual confusion among the general public, individuals and businesses as to the source, endorsement, sponsorship or affiliation of their products, and such acts will continue to create a likelihood of confusion by the general public and ultimate purchaser as to both the source and sponsorship of the Defendants and their products. 33. Defendants' acts as alleged herein are calculated and intended to deceive and are likely to deceive the general public and consumers into believing that they are purchasing genuine, authorized products of Plaintiff, when in fact they are not. Defendants' products do not originate from or have the approval or authorization of Plaintiff. 34. Plaintiff is informed and believes, and on that basis alleges, that the continued promotion, marketing and sale of Defendants' products and other unauthorized, misleading use of the Plaintiff's name, image and likeness will damage and dilute the goodwill and reputation of Plaintiff. 35. Unless Defendants are permanently enjoined from such activity, the public and trade will come to associate the Plaintiff's name only with Defendants. It is impossible to quantify the immense damage this has done and will continue to do to Plaintiff's reputation.

COUNT II COMMON LAW INVASION OF THE RIGHT OF PUBLICITY -11Document 144 Filed 08/08/2005

Case 2:04-cv-00299-DGC

Page 11 of 17

1 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

(ALL DEFENDANTS) 36. Plaintiff realleges paragraphs 1 through 35 as fully set forth herein. 37. Plaintiff has the right to control the commercial use of his identity, personality, name, likeness, goodwill and notoriety. 38. The Defendants used Plaintiff's identity, attributes of identity, name, image and likeness to their commercial advantage, without Plaintiff's consent or authority, and this use has resulted and will continue to result, in Plaintiff being injured. 39. As a direct and proximate result of Defendants' conduct set forth herein, Plaintiff has sustained and will continue to sustain damages. COUNT III UNJUST ENRICHMENT (ALL DEFENDANTS) 40. Plaintiff incorporates the allegations of Paragraph 1 through 39 above. 41. Defendants have been unjustly enriched and have benefited at the expense of Plaintiff and, therefore, as an additional remedy, Plaintiff is entitled, in quantum meruit, to the amount by which Defendants has been unjustly enriched. COUNT IV FALSE LIGHT--INVASION OF PRIVACY (ALL DEFENDANTS) 42. Plaintiff hereby incorporates by reference paragraphs 1 through 41 as though fully set forth herein. 43. Defendants' actions have resulted in publicity which places Plaintiff in a false light in the public eye.

Case 2:04-cv-00299-DGC

-12Document 144 Filed 08/08/2005

Page 12 of 17

1 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

44. Defendants' treatment and publication of Plaintiff is highly offensive to a reasonable person and Defendants' actions were extreme and outrageous. 45. As a direct and proximate result of Defendants' conduct set forth herein, Plaintiff has sustained damages. COUNT V DEFAMATION (ALL DEFENDANTS) 46. Plaintiff hereby incorporates by reference paragraphs 1 through 45 as though fully set forth herein. 47. Defendants have published statements to third-parties concerning Plaintiff which are known to be false, have and will continue to cause irreparable harm for which there is no adequate remedy at law. 48. These communications were defamatory; and the persons receiving the communications understood them to be defamatory and to apply to Plaintiff. 49. As such, Plaintiff is harmed by these communications PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against Defendants, and each of them, jointly and severally, as follows: A. Permanently enjoining and restraining Defendants, their respective officers, agents, servants, employees and attorneys, and predecessors and successors, by whatever name, and all those in active concert or participation with them from manufacturing, distributing, advertising, promoting, holding out for sale and/or selling any products, websites, corporations or services bearing or in connection with Plaintiffs name or likeness, or otherwise using same;

Case 2:04-cv-00299-DGC

-13Document 144 Filed 08/08/2005

Page 13 of 17

1 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

B. Directing such other relief as the Court may deem appropriate to prevent the trade and public from deriving any erroneous impression that any products, websites or services manufactured, distributed, offered for sale, sold or otherwise circulated or promoted by Defendants are authorized by Plaintiff. C. Directing that an accounting of and judgment be rendered against each Defendant for: (1) All profits received by any of the Defendants and all damages sustained by Plaintiff on account of Defendants' unfair competition; and furthermore, that such profits and damages as found herein be trebled, as provided by 15 U.S.C. § 1117; (2) All profits received by any of the Defendants and all damages sustained by Plaintiff on account of Defendants' tortuous interference with Plaintiff's contractual and advantageous business relationships. D. E. Awarding Plaintiff punitive damages of not less than $1,000,000. Awarding Plaintiff its costs in this action, including reasonable attorneys' and investigative fees. F. Directing that the Court retains jurisdiction of this action for the purpose of enabling Plaintiff to apply to the Court at any time for such further orders and directions as may be necessary or appropriate for the interpretation or execution of any order entered in this action, for the modification of any such order, for the enforcement or compliance therewith, and for the punishment of any violations thereof. G. Awarding to Plaintiff such other and further relief as the Court may deem just and proper.

Case 2:04-cv-00299-DGC

-14Document 144 Filed 08/08/2005

Page 14 of 17

1 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 -15Document 144 Filed 08/08/2005 DATED this 8th day of August, 2005. /s/Florence M. Bruemmer ANDERS ROSENQUIST, JR., #002724 FLORENCE M. BRUEMMER, #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff/Counterdefendant

Case 2:04-cv-00299-DGC

Page 15 of 17

1 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

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 August 8 , 2005, a true and correct copy of the foregoing COUNTERDEFENDANT LEMON'S SECOND FILED ANSWER TO COUNTERCLAIM DUE TO COUNTER-CLAIMANT'S APPLICATION FOR ENTRY OF DEFAULT AGAINST COUNTERDEFENDANT LEMON 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

Case 2:04-cv-00299-DGC

-16Document 144 Filed 08/08/2005

Page 16 of 17

1 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 -17Document 144 Filed 08/08/2005 /s/Florence M. Bruemmer Florence M. Bruemmer 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 8 day of August 2005, at Phoenix, Arizona.

Case 2:04-cv-00299-DGC

Page 17 of 17