Free Response in Opposition to Motion - District Court of Arizona - Arizona

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Telephone: 602 257-5200 Facsimile: 602 257-5299 Karl M. Tilleman 013435 P. Bruce Converse 005868 Jason Sanders 018600 Attorneys for Defendants Harlem Globetrotters International, Inc. and Mannie L. and Catherine Jackson DREIERLLP 499 Park Avenue New York, New York 10022 Telephone: 212 328-6100 Facsimile: 212 328-6101 Ira S. Sacks, admitted pro hac vice Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Meadowlark Lemon, et al., Plaintiffs, vs. Harlem Globetrotters International, Inc., et al. Defendants. Nos. CV-04-0299 PHX DGC and CV-04-1023 PHX DGC DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR AWARD OF ATFORNEY'S FEES Oral Argument Requested

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At the conclusion of the trial, the Court stated

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and plaintiffs counsel agreed

that "since this is a tort case," there is not "a basis for any attorney fees claim."

2/8/07 tr. Ex. 1 at 10:7-11 In fact, plaintiffs counsel recognized at the inception of this case that plaintiffs tort claim did not arise out of contract: plaintiffs counsel specifically agreed that he would bring a lawsuit on plaintiffs behalf "which arises out
of the use of Client's Rights of Publicity, without his permission or authorization, and

other violations of his statuto' and common law rights." Legal SeMces Agreement, Ex. Ito Mr. Rosenquist's Affidavit in Support of Request for Attorney's Fees, at 1 Arizona law is clear that attorneys' fees are not recoverable in tort cases. Arizona law is also clear that a tort claim like that asserted by plaintiff does not magically "arise out of contract" it as here, the defendant asserts contractual-based defenses to the plaintiffs tort claim. The fact that a contract between the parties may exist somewhere in their history does not mean that a tort action between the parties arises out of contract. There is no basis for an award of attorneys' fees in this case and plaintiffs inflated and unsupported fee request should be rejected. 1. PLAINTIFF IS NOT ENTITLED TO ATTORNEYS' FEES IN THIS ROUTINE TORT ACTION. A. Plaintiff's Right of Publicity Tort Claim Does Not "Arise Out of Contract."

Arizona law is clear that plaintiffs tort claim for breach of the right of publicity does not arise out of contract for purposes of an award of attorneys' fees simply

211 because the defendants argued that plaintiff consented to the use of his name through, 22 23 24 25 26 27 among other things, his player contracts.
See Benjamin v. Gear Roller Hockey

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Equipment, Inc., 198 Ariz. 462, 463-64, 11 P.3d 421, 422-23 App. 2000, abrogated on other grounds, Phelps v. Firebird Raceway, Inc., 210 Ariz. 403 2005; Fry `s Food Stores of Ariz. v. Mather & Assoc's, Inc., 183 Ariz. 89, 900 P.2d 1225 App. 1995; Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291 App. 1990. Indeed,

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even where a defendant is successfisl in asserting contract rights in defense of a tort

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5 claim, the claim does not arise out of contract for purposes of an award of fees under 2 A.R.S. § 12-341.01. Gear Roller Hockey, 198 Ariz. at 464, 11 P.3d at 423.
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In Gear Roller Hockey, a roller hockey player sued a roller rink for injuries he sustained while at the defendant's facility. 198 Ariz. at 463-64, 11 P.3d at 422-23. The roller rink successfully defended plaintiffs tort claim by asserting that the plaintiff had signed a written contract waiving any claim for injuries caused by the roller rink's negligence. Id. at 464. The Court of Appeals rejected the roller rink's claim that it was entitled to attorneys' fees because the dispute arose out of the contract between the parties. The Court held that "this is a negligence action, not a contract action. The thrust of Plaintiffs claim was in tort. Therefore, at 466. In Fry c Food Stores, the Court of Appeals likewise held that a property owner's claim against its contractors for the negligent installation of a canopy did not arise out of contract for purposes of A.R.S. §12-341.01A even though the installation of the canopy was governed by a construction contract between the parties. 183 Ariz. at 92, 900 P.2d at 1228. The Court ruled that, although the suit was "brought between

§ 12-341.01A does not apply."

Id.

contracting parties, it is a negligence suit to which the statute does not apply." Id. Similarly, in Snowbowl, an injured skier sued a ski resort for negligence. 166 Ariz. at 188, 800 P.2d at 1296. The Court of Appeals held that the skier's tort claim, like plaintiffs claim in this case, did not arise out of contract even though the ski resort

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defended the case by asserting that the skier had contractually released her negligence claim in a written contract between the parties. Id. The Court of Appeals thus rejected the skier's claim for attorneys' fees under A.R.S. "was not one arising out of a contract." Id.
Gear Roller Hockey, Fry s Food Stores, and Snowbowl are directly on point and

§ 12-341.01A because her claim

demonstrate that plaintiff's tort claim does not arise out of contract. The cases cited by

5 plaintiff are inapposite because none of them hold that the assertion of contract rights in
defense of a tort claim somehow transforms the tort claim into a contract case. Plaintiff
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erroneously claims that ASH, Inc. v. Mesa Unified School District, 138 Ariz. 190, 673

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P.2d 934 App. 1983 establishes that a contract need only be a "factor" in a dispute for a tort claim to arise out of contract. Mot. at 5 ASH does not stand for such a broad proposition. In fact, the Arizona Court of Appeals subsequently limited its ruling in
ASH by explaining that "the contract in ASH was not merely a factor', but the factor

giving rise to the litigation." Lewin v. Miller Wagner& Co., 151 Ariz. 29, 37, 725 P.2d 736, 744 App. 1986. The Lewin Court thus refused to "construe the `factor test'

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adopted in ASH to mean that simply because a contract is peripherally involved in a cause of action, A.R.S.

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12-341.01 is always applicable." Id. See also Marcus v.

Stone, 150 Ariz. 333, 335, 723 P.2d 682, 684 1986 confirming that "attorneys' fees

are not appropriate based on the mere existence of a contract somewhere in the transaction". The Arizona Supreme Court subsequently approved the rationale of the Lewin case, holding that where a contract "does no more than place the parties in a relationship in which the law then imposes certain duties recognized by public policy, the gravamen of the subsequent action for breach is tort, not contract." Barmat v. John & Jane Doe Partners, 155 Ariz. 519, 523, 747 P.2d 1218, 1222 1987. The Arizona Supreme Court recognized that "courts in other states have reached similar conclusions in situations where the contract is the mere inducement creating the state of things [the relationship] that furnishes the occasion for the tort." Id. citations omitted.

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The Arizona Supreme Court has thus made clear that the ASH factor test,"

22 1! construed by plaintiff to require only that a contract be "a factor" in order for fees to be 23 24 25 26 27 28 recoverable, is not the law in Arizona. Accordingly, the fact that plaintiff and HGI had a contractual relationship does not mean that the contract gave risc to plaintiffs tort

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claim. See Hanley v. Pearson, 204 Ariz. 147, 151, 61 P.3d 29, 33 App. 2003 if a contract fbrms a "factual predicate" for the action but is not its "essential basis," the action does not arise out of contract; Gibbons v. Chavez, 160 Ariz. 73, 770 P.2d 377 App. 1989 action against landlord for injuries caused by tenant's pit bulls did not
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arise out of contract even though duty allegedly breached arose from landlord's right to

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inspect under lease. Plaintiff cites two other cases that do not apply. In Marcus v. Stone, the court held that an action for fraudulent inducement to enter a contract could not have been brought without the existence of a contract. Marcus, 150 Ariz. at 335, 723 P.2d at 684. Similarly, in Sparks v. Republic Nat? Life Ins. Co., 132 Ariz. 529, 544, 647 P.2d 1127, 1142 1982 the court held that a claim for insurance bad faith "cannot be committed absent the existence of an insurance contract and a breach thereof." Thus, in Marcus and Sparks, "but for" the existence of the contract the tort could not have occurred. Accordingly, it is well-established that "the existence of a contract that merely puts the parties in tortious striking range of each other does not convert ensuing torts into contract claims. Rather, a tort claim will `arise out of contract' only when the tort could not exist `but for' the breach or avoidance of contract." Ramsey Air Meds, LLC
v. Cutter Aviation, Inc., 198 Ariz. 10, 15-16, 6 P.3d 315, 320-21 App. 2000.

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In this case, plaintiff's tort claim for breach of his right of publicity does not arise out of any contract or depend on whether or not a contract existed between him and any of the defendants. See Pooley v. Nail Hole-in-One Ass `n, 89 F. Supp. 2d 1108, 1111-12 D. Ariz. 2000 discussing tort and stating the elements of the tort of breach of the right of publicity, Plaintiff can presumably bring such a tort claim

against anyone who allegedly invades his publicity rights even if they are complete strangers
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such as GTFM. Put another way, plaintiff could not be deprived of his

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right to sue for breach of the right of publicity, as he could for the tort of bad faith or fraudulent inducement, if no contract existed between the parties. See Ring v. State
Farm, 147 Ariz. 32, 35-36, 708 P.2d 457, 460-61 App. 1985 a third-party claimant, a

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stranger to the contract, cannot sue the insurer for tortious breach of the duty of good

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faith. The other cases cited by plaintiff are equally inapposite because they are breach of contract cases, not tort cases. See Pinetop Lakeside Ass `n v. Hatch, 135 Ariz. 196,
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il 198, 659 P.2d 1341, 1343 App. 1983 "an action to enforce a restrictive covenant is, 2 3 4 in essence, an action to enforce the mutual contract obligations assumed by the various

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grantees in the subdivision"; Shirley v Hartford Acc. & Indem. Co., 125 Ariz. 70, 71, 607 P.2d 389, 390 App. 1979 action by an employee to enforce an employment contract; Nationwide Mut. Ins. Co.
Granillo, 117 Ariz. 389, 391-92, 573 P.2d 80,

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82-83 App. 1977 declaratory judgment action to determine whether vehicle was

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covered under an insurance policy; Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131, 132-33, 639 P.2d 321, 322-23 1982 breach of implied bailment contract. B. California's Fee Statute is Completely Irrelevant to Plaintiff's Claim for Fees.

Plaintiff apparently would have this Court judicially enact a statute, like that enacted by the California legislature, providing for an award of attorneys' fees in right

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5 of publicity cases. Mot. at 7-8 Arizona's attorneys' fee statute, however, is a direct expression of Arizona legislative and public policy and provides only for the recovery of attorneys' fees in cases arising out of contract. A.R.S.

§ 12-341.01.

In fact, the

Arizona Supreme Court has recognized that the "Legislature clearly did not intend that every tort case would be eligible for an award of fees whenever the parties had some sort of contractual relationship." Barmat, 155 Ariz. at 524, 747 P.2d at 1223. Accordingly, plaintiffs request that this Court act as a quasi- or super-legislature and countermand that policy by adopting a statute like that adopted in California should be

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I rejected.1 Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 79, 927 P.2d 340, 211 5; 345 App. 1996 "this court cannot sit as a super-legislature to determine the wisdom, 22 1, the necessity, or the inconvenience of a legislative enactment. 23 24. 25 26
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Plaintiffs citation to 333 West Thomas Medical Building Enterprises v. Soetantyo, 976 F. Supp. 1298, 1300 n. I D. Ariz. 1995 is inapposite because the court in that case looked to California's interpretation of redemption and mortgage statutes that had been borrowed from California, and that were actually enacted in Arizona by the Arizona legislature. The California statute that plaintiff seeks to apply here has never been adopted in Arizona.
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There is simply no reason for this Court to depart from Arizona's well-

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established law that attorneys' fees are not available in common law tort actions. Defendants therefore request that the Court summarily reject plaintiffs request for attorneys' fees and non-taxable costs. 2. PLAINTIFF'S INFLATED AND IMPROPER FEE REQUEST SHOULD BE REJECTED. Even if this Court were somehow to determine that plaintiffs tort claim for

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breach of his right of publicity arose out of contract, he still would not be entitled to the attorneys' fees he has requested. Fee awards under A.R.S.

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12-341.01A are

permissive and the trial court has broad discretion to determine whether attorneys' fees should be awarded. Solar-West, Inc. v. Falk, 141 Ariz. 414, 421, 687 P.2d 939, 946 App. 1984. Because an award of fees in a case falling within the statute is

discretionary, there is no presumption that a verdict winner is entitled to recover attorneys' fees. Layne v. Transamerica Fin. Servs., Inc., 146 Ariz. 559, 563, 707 P.2d 963, 967 App. 1985. The court should consider a variety of factors in reviewing a fee application, including the merits of the defense presented by the unsuccessful party, whether litigation could have been avoided or settled, and whether the requesting party prevailed with respect to all of the relief sought. Uyleman v. D.S. Rentco, 194 Ariz. 300, 305, 981 P.2d 1081, 1086 App. 1999. Here, plaintiff failed on nearly all of his claims. He failed on every claim he asserted against Mr. and Mrs. Jackson. He also failed on five of the six claims he

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brought against HGI and GTFM, including his demand for punitive damages. Plaintiffs fee request makes no concession for any of the unsuccessful claims he

5 asserted in this case, including the fact that he did not prevail on any claims against the 245 I Jacksons. 255 In addition, most of the costs of this litigation could have been avoided had 26 plaintiff reasonably participated in good faith in the Court-ordered settlement 271; conferences. During the first Court-ordered settlement conference in January 2005, 281
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plaintiff rejected Defendants' settlement offer and refused to make any counter-offer.
See Joint Report on Settlement Talks Conducted on January 21, 2005 Lx. 2 at 2 In

fact, plaintiff never made a settlement demand until after the Court's ruling on the parties' summary judgment motions. Then, after the Court granted Defendants summary judgment on the vast majority of plaintiffs claims and significantly limited plaintiffs available compensatory damages, plaintiff made an outrageous settlement demand of $35 million. See Settlement Demand from Anders Rosenquist Ex. 3 at 2 Plaintiff never made a more reasonable demand before the second Court-ordered Settlement Conference in September 2006. Instead, plaintiff took the unreasonable position that the Court's summary judgment ruling really did not limit his available compensatory damages to the figures reflected in the "HOl letter" and "Sales Chart."
See Plaintiffs Settlement Conference Memorandum Lx. 4 at 4-5

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According to

plaintiff, that interpretation ofthe Court's ruling would be "absurd." Id. at 5 Plaintiff was just as unreasonable at the September 2006 settlement conference. During the settlement conference, plaintiff refused to make a reduced settlement demand. Nor did plaintiff ever make a more reasonable settlement demand during the third Court-ordered settlement conference held in December 2006. Plaintiffs

unreasonable settlement demands and refusal to negotiate in good faith gave Defendants no choice but to try this case. Plaintiff should not be further rewarded with a fee award. A. Mr. Leonard's Affidavit Does Not Comply With L. R. Civ. P. 54.2.

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In addition, the fees requested by plaintiff are inflated and unsupported. Initially, Mr. Leonard's fec affidavit does not comply with L. R. Civ. P. 54.2. Mr. Leonard did not provide a copy of a written fee agreement or set forth "a full recitation of any oral fee agreement" as required by L. R. Civ. P. 54.2d2. Nor is it clear

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whether any of the fees claimed by Mr. Leonard have been charged to plaintiff, or ever will he. Indeed, plaintiffs Fee Agreement with Mr. Roscnquist provides that plaintiff

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will not be charged for the cost of any "associated counsel" retained by Mr. Rosenquist.
See Legal Services Agreement, Ex. 1 to Mr. Rosenquist's Affidavit, at

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Moreover, L. R. Civ. P. 54.2e requires the party requesting attorneys' fees to provide a task-based itemized statement of the legal services rendered, which must include 1 the date on which the service was performed, 2 the time devoted to each individual unrelated task performed on such day, 3 a description of the service provided, and 4 the identity of the attorney, paralegal, or other person performing such service. Mr. Leonard's fee request falls far short of complying with this Rule.

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Mr. Leonard's request simply lists the total number of hours he claims that he worked each day with almost no description of any of the tasks he allegedly performed. Nor

5; does he identify the time devoted to any "individual unrelated task" performed on each 12 13 14 15 16 17 18 19 20 0 21 22 23
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day. I

Mr. Leonard claims a total of 94.3 hours $18,860 from January 26 through

February 4 without describing a single task performed on any of those days, let alone idcntif'ing the specific time devoted to each individual task performed. Mr. Leonard's vague, general time entries do not provide any information to assist the court in assessing and evaluating the reasonableness of the work performed and the time expended. Accordingly, the fees requested by Mr. Leonard must be reduced to no more

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j than $7,000.2
B. Mr. Rosenguist's Affidavit Does Not Comply With L. R. Civ. P. 54,2. 1. Mr. Rosenguist's Aggregate Time Entries Must Be Rejected. Like Mr. Leonard's fee affidavit, Mr. Rosenquist's fee affidavit fails to comply with L. R. Civ. P. 54.2. The vast majority of Mr. Rosenquist's time entries do not provide "the time devoted to each individual unrelated task performed" each day as

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Mr. Leonard also fails to provide any description of the 10 hours of work claimed for January 25. Presumably, those hours reflect the time that Mr. Leonard spent in trial that day. Mr. Leonard's description of the 5 hours that he claims for February 5 and the 7 hours that he claims for February 6 are also inadequate under the Rule. Presumably, those hours were spent preparing for and appearing at trial. Although Defendants cannot tell from Mr. Leonard's fee application exactly what work was performed on those days, they will not specifically contest those hours claimed by Mr. Leonard.
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required by L. R. Civ. P. 54.2e1. examples:

The following time entries are hut a few

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9/22/04

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Review court minute entry; Work on amended complaint; Several TCW clerk regarding missing certificates of service they were in her file and she didn't know Revisions to ntc of depos, prepare subpoena for Theodore Nikolis, review emails about 1 dozen Work on letter; prepare fax to Anders; Discuss travel Finalize Discovery answers; Review many c-mails; case; Draft e-mail re; conference with the court re; Default; c-mail Cynthia re; status Revise Clay; ROP TCW Sandy; Many c-mails; Revise Report Many TCW E-mails to finalize Expert Reports Get out expert Report took forever Work on Notice of Deposition; Discovery, Go through files for Order ti Finished revising Response to Motion/Read Dcpo's of Weisfeld and Blenden/Called Clay re: Abalos Dcpo and Exhibits for insert to our response/ Read Abalos Depo and pulled citations for Response to Motion to Strike Work on delivery; numerous c-mails; telephone call with court, counsel, staff Meet with Anders

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120.00

6/21/05 7/6/05 8/7/05

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400.00 200.00 360.00

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400.00 700.00 600.00 1230.00

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1600.00

Defendants object to each aggregate time entry submitted by Mr. Rosenquist. Pursuant to L. R. Civ. P. 54.2f, those time entries are identified in Exhibit 5. Mr. Roscnquist's "block-billing" does not provide sufficient information as to the amount

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of time spent on particular tasks and prevents Defendants and the Court from assessing

24 1 and evaluating the reasonableness of the work performed and the time expended. 25 2. Mr. Rosenguist's Vague Time Entries Must Be Rejected. 26 27 285
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L. R. Civ. P. 54.2e2 requires a party seeking an award of fees to "adequately describe the services rendered so that the reasonableness of the charge can be

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evaluated." The Rule sets forth specific explanatory examples of how the requesting party must describe the services rendered. For example, a request for time spent in conferences must identify all participants and the reason for the conference. L. R. Civ. P. 54.2e2A. 2/10/04 1/21/05 1/21/05 7/7/05 7/21/05 8/16/05 8/16/05 9/28/05 9/28/05 9/30/05 9/30/05 11/17/05 1/12/06 1/12/06 10/24/06 10/31/06 11/14/06 2/5/07 3/15/07 Thus, the following time entries by Mr. Rosenquist are unacceptable: 200.00 240.00 240.00 300.00 200.00 200.00 200.00 500.00 200.00 300.00 280.00 400.00 260.00 260.00 800.00 700.00 700.00 600.00 900.00 7480.00

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Conference call with Florida 1 Conference call 1.2 fmb Conference call 1.2 fmb meeting regarding case 1.5 fmb meeting regarding depos 1 Meadowlark Conference Call 1 fmb conference call 1 case; Conference call Work on 2.5 fmb Conference call 1 Telephone conferences 1.5 fmb conference calls 1.4 Conference 2 Conference call 1.3 fmb conference call 1.3 fmb downtown meeting 4 Meeting downtown 3.5 Continue work on pretrial documents: conference call 3.5 meeting regarding trial 3 Conferences with attorneys in office... 4.5

Similarly, a request for legal research "must identi' the specific legal issue researched and, if appropriate, should identify the pleading or document the preparation of which occasioned the conduct of the research." L. R. Civ. P. 54.2e2B. The

Rule specifically provides that time entries simply stating "research" or "legal research" are inadequate and should be rejected. Id. Thus, time entries such as these submitted by Mr. Rosenquist are not acceptable: 2/5/04 3/9/04 4/20/04 11/30/04 11/14/06 11/21/06 Revise complaint; Research per Clay Townsend Begin research rules Research Review decisions sa Research rc: Motion in Limine sa Research re: Response to Motion in limine 2 1.2
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400.00 240.00 50.00 40.00 620.00 160.00 1510.00

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Mr. Rosenquist's affidavit includes many additional time entries that do not adequately describe the services rendered. The following vague time entries are but a few examples: 8/11/04 6/21/05 7/27/05 7/28/05 7/21/05 8/22/05 9/16/05 9/28/05 10/18/05 10/28/05 11/10/05 11/30/05 11/30/05 5/31/06 10/17/06 10/17/06 10/18/06 10/18/06 10/19/06 10/27/06 10/27/06 10/31/06 11/1/06 11/3/06 11/22/06 Continue revisions Notice to taking videotaped depos, INTs More scheduling issues Meadowlark Tons of emails regarding depos, etc. continue work on depositions Review Document's and Draft E-mails Ntc Catherine Dcpo Discuss various issues Went through filed with Florence to pull documents Review MSJ; Revision and Assembly Review Document's Finalize Response Motion ti Finalize Response Motion Florence and Tanya working on documents kp Preparation for trial ti Preparation for trial ii Preparation for trial kp Preparation for trial ti Preparation for trial kp Revise and add additional information kp Revise Proposed Final and emailed kp Continue DRAFT Proposed kp Revise Proposed Final kp Continue revisions on Final Dig thru files for disclosure 1.4 1.5 .4 .5 1
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6.4 5.1 3 2.1 2.1 2.3 3.7 1.7 2.2

280.00 300.00 80.00 100.00 200.00 100.00 240.00 200.00 120.00 2000.00 400.00 1200.00 3000.00 2380.00 520.00 780.00 960.00 510.00 450.00 210.00 210.00 230.00 370.00 170.00 440.00

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These and many other similar entries are too vague and do not adequately describe the services rendered in a manner in which the Court can determine whether the time billed was reasonable and necessary. For example, billing 26 hours in a single day 11/30/05 to "Finalize Response Motion" does not come close to satisfying plaintiffs burden under L. R. Civ. P. 54.2. Nor does billing 2.2 hours to "dig thru files" 11/22/06. Accordingly, Defendants object to each and every vague time entry submitted by Mr. Rosenquist that does not adequately describe the services rendered. Pursuant to L. R. Civ. P. 54.2f, those time entries are identified in Exhibit 6.

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Mr. Rosenguist's Fees For Services Unrelated to Defendants Must Be Rejected.

Plaintiff also requests fees for time that his counsel spent pursuing claims against other parties unrelated to Defendants. Specifically, plaintiff brought claims against several other third-party defendants, including David Derington, Ryann Baker, Westwood Marketing, and the Harlem Alistars alleging that these defendants had placed certain images on his websitc without his authorization. Plaintiff eventually voluntarily dismissed those claims that had nothing to do with Defendants. Plaintiffs counsel also apparently spent time researching how he could avoid a statute of limitations problem and bring claims against other defendants. Plaintiffs request for fees for his counsel's time spent pursuing other defendants should be rejected: 8/4/04 8/10/04 8/11/04 8/11/04 8/24/0 4 8/27/04 10/26/04 11/4/04 12/7/04 12/12/06 Revise all summons for 3rd party complaint .3 Draft amended complaint; Revise motion for 1.3 leave to amend complaint and order Further revisions to 2nd am. complaint and motion .2 Review changes to motion to amend complaint .5 and amended Complaint Letter to Derington regarding extension .1 Revise motion to amend, memo and revised complaint .3 Revise affidavit and do letters to Baker and Derrington .5 Drafted notice of dismissal of Westwood, Allstars .3 Corp. Derington and Baker Draft supp. disclosure of affidavit of David Derington .3 Conducted legal research per Clay's request re: 6.3 statute of limitations and feasibility of filing suit against Jordache, Samsung, The Collection, GTFM of Orlando 6.8 Began research for Clay re: tolling of sol in NY Continued Legal research per Clay's request 6.9 rc: tolling of sol on NY right of publicity claim 4.9 Began research for Clay re: whether statute of limitations can be avoided if original case was filed within statute of limitations but then was transferred and dismissed for personal jurisdiction ti Continued legal research for Clay rc: whether 3.3 avoided if original case statute of limitations can be was filed within statute of limitations but then was transferred and dismissed for personal jurisdiction
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60.00 195.00 40.00 100.00 20.00 60.00 100.00 60.00 60.00 1260.00

1020.00 1035.00 735.00

495.00

5240.00
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Incredibly, plaintiff has also asked the Court to award him the fees billed by his attorney 1 for time spent responding to an Order to Show Cause why sanctions should not be imposed on plaintiffs counsel for his failure to comply with the Court's electronic filing requirements, and 2 for time spent searching his files for documents to send to a reporter from the Arizona Republic. Plaintiff is obviously not entitled to those fees: 8/30/05 Drafted response to Order to Show Cause why 1 sanctions should not be imposed regarding electronic filing Revised Plaintiffs response to OSC .2 Finalize OSC; Electronic Filing .3 Searched files at office for complaint, Clay's 2 complaint and all defendants answers; faxed all complaints and answers to Doug Haller with Arizona Republic 200.00 40.00 60.00 630.00

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9/2/05 9/6/05 12/21/06

930.00 4. Plaintiffs Request for Fees Related to Ms. Abalos Should Be Denied.

Plaintiff has requested thousands of dollars in fees related to his counsel's work with Ms. Abalos, plaintiffs expert witness who prepared an irrelevant report that the court struck. Specifically, the Court ruled that "because the Abalos report and

testimony contains no individualized damages calculation, it is irrelevant and may not be presented at trial." Order, Dkt. # 425 at 23 Accordingly, Mr. Rosenquist's entries for time spent working with Ms. Abalos on her improper and irrelevant report should be rejected:3 1/11/05 2/8/05 2/10/05 2/15/05 2/23/05 3/15/05 Work on pulling documents for Abalos and Clay Meadowlark TCW Sandy Abalos re: documents needed; pull needed documents from file Call Abalos about needed documents; assign Terry to sift through file. Emails back and forth regarding expert Work on expert witness issue Work on deposition, scheduling and obtaining 1 .1 .3
.5

200.00 20.00 60.00 100.00 200.00 400.00

23
24

25 26
27

1 2

28

For the same reason, plaintiff is not entitled to the $15,427.90 in non-taxable costs he has requested for Ms. Abalos' fees.
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6/22/05 7/7/05 7/21/05 8/18/05 8/19/05 8/19/05

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50;
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6 7 8 9 10 11; 12 13 14

8/25/05 9/14/05 9/14/05 9/21/05 10/31/05 11/1/05 11/7/05 11/8/05 11/11/05

is
16; j7; 18 19 20

expert reports Finalize mailings; lengthy email to Sandy Abalos; email to court reporters Mr. Nikolis Meet with Sandy Accountant Meeting Revise Clay; ROP TCW Sandy; Many c-mails; Revise Report Pulled and Printed Richard case and c-mailed to Clay and Sandy Many TCW E-mails to finalize Expert Reports Get out expert Report took forever Draft notice of service of expert report Sandy depo and Judge conference; Revise dcpo notices, send c-mails, contact Joel Herz fmb Abalos depo by FUBU Review Summary Judgment Doe's; e-mail re: Expert Began Draft Response to GTFM's Motion to Strike Expert Report ti Finished Drafting Response to GTFM's Motion To Strike Expert Report Continue working on motion to Strike response Revise Response to Motion to Strike Plaintiffs Expert Report/Read partial transcript of depo of Sandy Abalos ti Continue Revisions to Motion to Strike Plaintiffs Expert Report...
. . .

I 2 1.5 2 .4 3.5 .3 12.5 9 1 1.5 1.4
.5

200.00 400.00 300.00 400.00 80.00 700.00 60.00 2500.00 1800.00 200.00 225.00 210.00 100.00 1100.00 1125.00 10380.00

7.4

7.5

5.

Plaintiff's Request for Duplicative Fees Should Be Denied.

Plaintiff has also improperly requested fees for duplicative time expended by multiple attorneys performing the same or similar task. For example, plaintiff requests $3,800 in fees for two lawyers to spend 19 hours defending his deposition: Depositions fmb Depositions 10 9 2000.00 1800.00

5 21 5;
22 23 24 25 26 27 28

5 4/12/05
554/12/05

Plaintiff likewise requests $4,700 in fees for two lawyers to spend 23.5 hours to 0 take the deposition of Mr. Jackson and to attend the deposition of Mr. Syracuse during which neither one asked a single question:

;J

5/9/'05 555/9/OS

Deposition fmb depositions
Document 637 14 Filed 04/03/2007

12.5 11

2500.00 2200.00

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Plaintiff also requests $11,200 in fees for two lawyers to spend 56 hours to prepare for and attend the depositions of the GTFM witnesses: 8/1/05 8/1/05 8/2/05 8/2/OS 8/3/05 8/3/05 Deposition preparation fmb deposition preparation Depositions fmb depositions fmb depositions Depositions S 7 11 11 11 11 1000.00 1400.00 2200.00 2200.00 2200.00 2200.00

5
5

5 6 7 8 9

Plaintiff also requests $2,400 in fees for two lawyers to spend a total of 12 hours to attend the deposition of Governor Vaughn: 9/15/OS Gov Vaughn Depo; Revise sent out depo notes fmb Governor Vaughn deposition 6 6 1200.00 1200.00

10 5_9/15/05 Plaintiff also requests $1,400 in fees for two lawyers to spend 7 hours to attend II the deposition of Mrs. Jackson: 12 fmb C. Jackson's Depo TCW Clay and Anders 3.5 700.00 13 9/20/05 3.5 9/20/05 C. Jackson deposition; TCW Clay and Florence 700.00 14 Plaintiff also unreasonably requests $8,685 in fees to have three lawyers spend

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is
16 17 18 19 20 21 22 23 24 25 26 27 28

48.4 hours to prepare for and attend oral argument on the parties' summary judgment motions. It then apparently took another 2.5 hours to read the Court's ruling: 6/1/06 6/1/06 6/2 /06 Met with Florence, Anders, Clay, and Keith rc discuss issues for oral argument Prepare for oral argument II Pulled Exhibits from PACER for Response to Motion to Strike Expert Report; Reviewed Documents for oral argument; Travel to Hearing; attended District Court Hearing re: various summary judgment motions fmb Work on case with Clay Oral Argument day-continue prep fmb oral argument and prep Review motion for summary judgment ruling 10.7 8 9.2 1605.00 1600.00 1380.00

6/1/06 6/2/06 6/2/06 6/27/06

5.5 9 6 2.5

1100.00 1800.00 1200.00 500.00

Plaintiff also unreasonably requests $1,600 to have 2 attorneys spend 8 hours
preparing for the September 2006 settlement conference.

Plaintiff requests an

additiona] $2,165 to have 3 attorneys spend 12.1 hours attending the settlement conference during which plaintiff demanded $35 million:
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9/26/06 9/27/06 9/27/06 9/28/06 9/28/06 9/28/06

Meet with Anders to prep for Set Conference Prep for Set Conference at hotel fmb prep for settlement conference Set Conference fmb settlement conference and travel ti Attend Settlement Conference; Travel

1 3 4 3 4 5.1

200.00 600.00 800.00 600.00 800.00 765.00

Plaintiff also unreasonably requests $4,230 to have 3 attorneys print cases, and 6 7 8 9 10 11 12 t3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2/26/0 7 2/26/0 7 2/18/07 2/20/07 2/21/07 12/6/06 12/6/06 prepare for and attend the Pretrial Conference: 12/5/06 12/6/06 10.4 ti Pulled all pretrial does and motions in Limine for hearing tomorrow from file... ti Pick up Defendants exhibits; Met with Anders, 5.8 Florence, and Clay at hotel; Attended Pretrial Conference; Travel to District Court fmb travel to meeting and hearing and attend the same 5 4 Prepare for Hearing; Hearing; Travel to Sanctuary; from Defendants; Travel to Court; Review responses Meet at Hotel; Hearing; Review Court's lengthy Orders 6. 1560.00 870.00 1000.00 800.00

Plaintiffs Request for Fees For His Motion Should be Denied.

L. R. Civ. P. 54.2c2 provides that, if "the moving party claims entitlement to fees for preparing the motion and memorandum for award of attorneys' fees," the party "must cite the applicable legal authority supporting such specific request." Plaintiff has included within his request the time spent by his attorneys preparing his Motion for Attorney's Fees, but he has not cited any legal authority in support of his request. Accordingly, pursuant to L. R. Civ. P. 54.2c2, he is not entitled to those fees: 2/13/07 2/14/07 2 Review costs and attorney fee statement Continued legal research re: attorney's fees, standard 4.1 for judgment notwithstanding the verdict, pulled rules on posting appeal bond and interest rate Began assembling invoices for attorneys fees; Finalize 4.5 invoices; Assemble expenses Drafted Affidavit in Support of Request for Attorney's 2.1 fees/Began drafting Application for Attorneys' Fees Continued Drafting Application for Attorney's Fees / 6.7 Legal research re: cases cited by Marcus v. Fox / Legal research re: cases that say Arizona looks to CA for guidance .6 Revise Jason's affidavit .5 Draft attorney fee affidavit Jason
Document 637 16 Filed 04/03/2007

400.00 820.00 900.00 315.00 1005.00

90.00 75.00
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3/2/07 3/5/07

Work on Motion; e-mail re Attorney Fees consultations 1 Draft e-mail to Karl .2

200.00 40.00 3845.00

3

5 5

It is apparent from plaintiffs fee application that plaintiffs counsel made no attempt to sift through and delete time entries that under no circumstances could be charged against Defendants. In addition, the vast majority of the entries are too vague

6 7 8

and/or block-billed and do not offer enough information to assess their reasonableness. The examples set forth above clearly call into question the validity of plaintiffs entire fee application. Given plaintiffs pervasive failure to comply with Local Rule 54, the Court should exercise its discretion and deny all of the fees requested by plaintiff. C. Plaintiff is Not Entitled to Non-Taxable Costs.

5 10 5
11: 12 13 14 15 16 17 18 19 20 21 22 23 24

Plaintiff is not entitled to recover any of his requested non-taxable costs. L. R. Civ. P. 54.2cl requires a party requesting "an award of attorneys' fees and related non-taxable expenses" to "cite the relevant legal authority governing the standard by which the court should detcrnine eligibility." Plaintiff claims that he is entitled to his attorneys' fees and non-taxable costs under A.R.S.

§

12-341.01A. Mot. at 2 The

Arizona Supreme Court has specifically held, however, that "non-taxable costs such as delivery and messenger service charges, copying expenses, teleeopier and fax charges, postage, and long distance telephone charges" are not recoverable as part of an award of attorneys' fees under

§

12-341.01. Ahwatukee Custom Estates Mgmt. Ass `n v. Bach, The Arizona Supreme Court reasoned that,

55
5

5

193 Ariz. 401, 973 P.2d 106 1999.

allowing "a party to recover non-taxable costs under the guise of attorneys' fees would undermine the legislative intent expressed in A.R.S.

§

12-332. By enacting that statute,

the legislature clearly defined which categories of litigation expenses a prevailing party can recover from the opposing party." Id. at 402, 973 P.2d at 107. Accordingly, plaintiff is not entitled to any of his non-taxable costs. Conclusion For the foregoing reasons, plaintiffs Motion for an Award of Attorney's Fees should be summarily denied.
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Case 2:04-cv-00299-DGC

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DATED this 3rd day of April 2007. STEPTOE & JOHNSON
LLP

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By: /s/ Karl M. Tilleman Karl M. Tilleman P. Bruce Converse Jason Sanders 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 ktillemansteptoe.com pbeonversecisteptoe.com jsanderssteptoe.com Attorneys for Defendants Harlem Globetrotters International, Inc., Mannie L. Jackson, and Catherine Jackson and DREIER LLP

12 13 14 15 16 17 18 19 20 21 225 23;*!;; 241 255

By:

/s/ Ira S. Sacks with permission Ira S. Sacks 499 Park Avenue New York, New York 10022 isacksidreierllp.com

Attorneys for Defendant GTFM, LLC

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Document 637 18 Filed 04/03/2007

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CERTIFICATE OF SERVICE 2 3

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I hereby certify that on the 3rd day of April 2007, a true and

5 4 5l.
5 6

correct copy of the foregoing Response was electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Safia A. Anand: [email protected] Florence M. Bruemmer: fiorencei3brucmmerlaw.com 71 Edward R. Garvey: gryey?i/gmmattorneyçoj, 8 Christa 0. Westerberg: westerbcrggmmattorneys.com 95ilmmattorne's.com Robert Williams Goldwater III: rggoldwaterlaw.com Ray Kendall Harris: rharrisfclaw.com io mtol]iver/ifc1aw.com 11 Joel Louis Herz: paralegalOioelherz.com 12 Alec R. HilIbo: [email protected] 13 jI dperkinsãfclaw.com Brandon Scott Peters: bpetersaforthepeople.com 14 bpetersgo1dwaterlaw.com [email protected] 15 Anders V. Rosenquist Jr: flyjcpxjçt 16 Ira S. Sacks: Clay M. Townsend: ctownsendcMorthepeople.com 17 Ic aJ for the eo Ic com 18 lcowanforthepeop1e.com Jason R. Leonard: jason.leonardijrlhelps.com 19 infoägoldwaterlaw.com stacie.schuckjrlhelps.com 20
,
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2155 22 2.35 245; 255 26

By:

/s/ Karl Tilleman Karl Tilleman

285
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Document 637 19 Filed 04/03/2007

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