Order Granting Addition Of Susan Brown As Defendant

1,858 views

Published on

Published in: Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
1,858
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
8
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Order Granting Addition Of Susan Brown As Defendant

  1. 1. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION HOWARD K. STERN, as Executor of the ) Civil Action No.: 4:08-cv-2753-TLW-TER Estate of Vickie Lynn Marshall, a/k/a ) Vickie Lynn Smith, a/k/a Vickie Lynn ) Hogan, a/k/a Anna Nicole Smith, ) ) Plaintiffs, ) ) ORDER -vs- ) ) ) STANCIL SHELLEY, a/k/a Ford Shelley, ) G. BEN THOMPSON, and John or Jane ) Does 1-12, whose true names are unknown, ) ) Defendants. ) ___________________________________ ) I. INTRODUCTION This action arises out of the removal of property belonging to the Estate of Vickie Lynn Marshall a/k/a Vickie Lynn Smith a/k/a Vickie Lynn Hogan a/k/a Anna Nicole Smith (hereinafter, the Estate) from a home located in the Bahamas known as Horizons (hereinafter, Horizons), about which Ms. Smith and Defendants were involved in a contentious dispute regarding ownership at the time of Ms. Smith’s death. Plaintiff asserts causes of action for conversion, wrongful taking of estate property in violation of California Probate Code § 850, et seq., statutory and common law commercial appropriation of right of publicity in violation of California Civil Code § 3344.1, unjust enrichment/restitution, unfair competition in violation of California Business & Professional Code § 17200, et seq., violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5) and civil conspiracy. Presently before the Court is Plaintiff’s Motion for Leave to Amend (Document # 78) his
  2. 2. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 2 of 7 Complaint. Plaintiff moves pursuant to Federal Rules of Civil Procedure 15(a)(2), 15(d), and 20(a)(2) to amend his Complaint to join Gaither Bengene Thompson, II (Gaither), Melanie Thompson (Melanie), Gina Thompson Shelley (Gina) (collectively, the “Doe Defendants”), and Susan M. Brown (Brown) and The Law Offices of Susan M. Brown, P.C. (the Law Firm) as party defendants and to amend and supplement his Complaint with facts learned during the discovery process. All pretrial matters have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) & (B) and Local Rule 73.02(B)(2)(e), DSC. II. RELEVANT FACTS A. Doe Defendants In addition to the Defendants named in the Complaint, Plaintiff also names “Doe Defendants”– unknown persons who “acted in concert with [Defendant Stancil “Ford” Shelley, (hereinafter, Ford)] concerning property belonging to the Estate.” Complaint ¶ 5. Plaintiff provides in the original Complaint that he will seek to name these defendants once their identities are ascertained through discovery. Plaintiff represents in his Motion that Gaither Bengene Thompson, II (Gaither) and Melanie Thompson (Melanie) have conceded through counsel that they are two of the Doe Defendants. Further, Gaither and Gina testified that they were personally involved in the removal of Estate property from Horizons. Gaither Dep. 86-94; Gina Dep. 81-83. Gaither also testified that Melanie entered Horizons on the day after Ms. Smith’s death and later took an Estate computer from Ford’s home to her own home for a few days. Gaither Dep. 88, 106. B. Susan Brown and the Law Offices of Susan M. Brown, P.C. Brown entered into an agreement with G. Ben Thompson (hereinafter, Thompson) in October 2006 wherein she agreed to represent him and several entities he owned with regards to his dispute -2-
  3. 3. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 3 of 7 with Smith regarding Horizons. Brown Aff. ¶ 2. At the same time, Brown verbally agreed to represent other members of Thompson’s family on this matter. Id. Following the removal of Estate property from Horizons, Ford gave to Brown some of the Estate property, including copies of Estate computer hard drives. Brown later gave the hard drives to The O’Quinn Law Firm, which had engaged a computer forensics expert to conduct reviews of the hard drives. Brown Dep. 22-25, 167- 69. Brown also copied Estate property and maintained these copies on her and her firm’s computer. Id. at 30-37. C. Additional Facts As a result of discovery, Plaintiff seeks to add additional factual allegations that he argues provide him with additional grounds for relief. Specifically, Plaintiff seeks to allege that Ford distributed Estate property to more third-parties than originally learned, including Geraldo Rivera with Fox News, the O’Quinn Law Firm, former television journalist Rita Cosby, and the California Department of Justice. Ford Dep. I at 140-141, 91-93; Ford Dep. II at 29; Brown Dep. at 163-64, 199-201. Additionally, Plaintiff seeks to allege post-Complaint facts which he asserts warrant supplementing the Complaint. Specifically, Plaintiff seeks to allege that Brown maintained copies of Estate property on her own computer without disclosing the fact to Plaintiff or the Court. Brown Dep. at 30-37. III. DISCUSSION As stated above, Plaintiff moves pursuant to Federal Rules of Civil Procedure 15(a)(2), 15(d), and 20(a)(2) to amend his Complaint to join Gaither Bengene Thompson, II (Gaither), Melanie Thompson (Melanie), Gina Thompson Shelley (Gina) (collectively, the “Doe Defendants”), and -3-
  4. 4. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 4 of 7 Susan M. Brown (Brown) and The Law Offices of Susan M. Brown, P.C. (the Law Firm) as party defendants and to amend and supplement his Complaint with facts learned during the discovery process. Counsel for Ford has consented to the filing of the proposed Amended Complaint. See Email from MacDonald to Lantta dated October 28, 2009. Thompson has not filed a Response in opposition the motion. The only opposition comes from proposed new Defendants Brown and the Law Firm.1 Brown argues that allowing the amendments would be prejudicial to her and would be futile as to the claims against her. Brown does not appear to oppose the addition of Gaither, Melanie and Gina as Defendants in this action or to the addition of factual allegations regarding Ford’s distribution of Estate property to other third-parties. Rule 15(a) provides that leave to amend a complaint should be “freely given when justice so requires.” “The law is well-settled ‘that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.’” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.1999)(citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) and quoting Johnson v. Oroweat Foods Co., 785 F.2d 503,509-10 (4th Cir.1986)). Addition of Gaither, Melanie, and Gina is appropriate under Rule 15(a) and Rule 20(a)(2) and is unopposed. Further, addition of the factual allegations regarding Ford’s distribution of Estate property is appropriate under Rule 15(a) and is unopposed. Therefore, Plaintiff’s motion is granted as to these proposed amendments. The only proposed amendments at issue are the addition of Brown as a Defendant and the 1 For ease of reference, any further use of “Brown” within this Order will refer to both Susan Brown and the Law Firm, unless otherwise noted. -4-
  5. 5. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 5 of 7 factual allegations against her. Brown first argues that adding her to the case would be prejudicial. She argues that numerous depositions have already been taken and the expert disclosure and discovery deadlines have passed. She argues that she would be prejudiced due to the fact that she has not had the opportunity to participate in discovery as a party. However, in his Response, Plaintiff asserts that he is not opposed to amending the deadlines in this case to allow Brown to conduct discovery. Further, Plaintiff argues that Brown, as counsel for Thompson, fully participated in the discovery that has occurred in this case thus far. Because Plaintiff is not seeking to add any new legal theories, any additional discovery that is needed should be fairly limited. All of the proposed new Defendants, including Brown, have already been deposed regarding their involvement in the facts underlying this case. The need for additional discovery and an amended scheduling order is not sufficiently prejudicial to outweigh the mandate that leave to amend a complaint be “freely given.” See N.C. ex rel. Long v. Alexander & Alexander Servs., Inc., 711 F.Supp. 257, 259-60 (E.D.N.C.1989) (noting that the fact that parties will have to conduct additional discovery “does not suffice as a showing of prejudice”). Thus, the undersigned finds that allowing the amendment would not be prejudicial. Brown also argues that Plaintiff’s motion should be denied because the addition of any claims against her would be futile. For a motion to amend to be denied for futility, the amendment must be “clearly insufficient or frivolous on its face.” Oroweat Foods Co., 785 F.2d at 510-511; see also Rambus, Inc. v. Infineon Technologies, AG, 304 F.Supp.2d 812, 819 (E.D.Va.2004) (“Courts generally favor the ‘resolution of cases on their merits’ ... [t]hus the substantive merits of a proposed claim [or defense] are typically best left for later resolution, e.g., motions to dismiss or for summary judgment, ..., or for resolution at trial.”) (quoting Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 -5-
  6. 6. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 6 of 7 (4th Cir.1980)); see also Robinson v. GEO Licensing Co., L.L.C., 173 F.Supp.2d 419, 423 (D.Md.2001). Brown argues that, as former counsel in this case, she is immune from the claims Plaintiff seeks to allege. Generally, an attorney is immune from liability to third persons arising from the performance of his or her professional activities as an attorney on behalf of and with the knowledge of his or her client. See Hunt v. Mortgage Electronic Registration, 522 F. Supp.2d 749, 758 (D.S.C. 2007). However, both Thompson and Ford testify that they did not authorize her to distribute Estate property to the O’Quinn Law Firm. Shelley Dep. I at 164; Thompson Dep. at 152. Thus, a question of fact exists as to whether Brown is immune from the claims Plaintiff seeks to assert against her. Brown also addresses each cause of action and argues that Plaintiff cannot maintain a claim against her under any of his theories of recovery. Brown argues that Plaintiff incorrectly assumes that California law will apply in this action. Brown argues generally that South Carolina law applies under the doctrine of lex loci delicti because the alleged injuries occurred in South Carolina. Plaintiff does not dispute that the lex loci delicti doctrine, that is, the law of the state in which the injury occurred, is applicable to these claims. Instead, Plaintiff argues that for the statutory claims asserted by Plaintiff for misappropriation of publicity rights, unfair competition, and wrongful taking of Estate property, the injury occurred in Plaintiff’s domicile, which Plaintiff alleges is California. Proposed Amended Complaint ¶¶ 12, 28. Nevertheless, Plaintiff’s common law claims are properly pleaded under either California law or South Carolina law. As for the California statutory claims, while neither party thoroughly addresses the choice of law issue, for a motion to amend to be denied for futility, the proposed amendment must be “clearly insufficient or frivolous -6-
  7. 7. 4:08-cv-02753-TLW -TER Date Filed 07/01/10 Entry Number 120 Page 7 of 7 on its face.” Oroweat Foods Co., 785 F.2d at 510-511. Based upon the record presented, the undersigned cannot conclude the Plaintiff’s proposed amendments are clearly insufficient or frivolous.2 Accordingly, allowing Plaintiff to amend his Complaint would not be futile. IV. CONCLUSION In sum, Brown has failed to show that allowing Plaintiff to amend his Complaint to add her would be prejudicial or futile. Further, none of the parties object to allowing Plaintiff to add the Doe Defendants or the new factual allegations. Thus, Plaintiff’s Motion for Leave to Amend (Document # 78) is GRANTED. The Clerk of Court is directed to file the Amended Complaint, which is attached as an exhibit to Plaintiff’s Motion. Plaintiff must serve the Amended Complaint within 15 days of the date of this Order. Defendants must respond in accordance with the Federal Rules of Civil Procedure. IT IS SO ORDERED. s/Thomas E. Rogers, III Thomas E. Rogers, III United States Magistrate Judge July 1, 2010 Florence, South Carolina 2 It is further noted that Plaintiff does not seek to amend his Complaint to add claims under California law. Those claims are already pending. -7-

×