This document is a reply in support of a motion to amend a complaint to add Susan M. Brown as a defendant. It argues that Brown is not immune from liability for her conduct related to estate property, which included distributing property without authorization and engaging in criminal acts. It also argues that any delay in adding Brown as a defendant was due to her own attempts to delay, including refusing a deposition without a court order. The reply seeks to add Brown as a defendant for claims related to the conduct already at issue in the case.
Reply In Support Of Motion For Contempt For SbJRachelle
This document is a reply brief in support of a motion for contempt and sanctions against Susan M. Brown. It argues that Brown is in contempt of a court order requiring her to return any estate property in her possession. The brief asserts that Brown has provided shifting explanations to avoid contempt and misrepresents facts, including acknowledging in her deposition that she knew the order's requirements and possessed estate property. The brief contends Brown's conduct satisfies the elements for a finding of civil contempt.
Motion for Leave To Amend And Add Known Jane DoesJRachelle
This document is a motion filed by Howard K. Stern as executor of the estate of Vickie Lynn Marshall (Anna Nicole Smith) in a civil action. It requests leave from the court to amend and supplement the original complaint, join additional defendants, and amend the case caption. The motion states that discovery has revealed new information supporting the original claims and identifying previously unknown defendants. It also describes events that have occurred since the original complaint that could be added. The executor seeks to add claims involving additional conversions of estate property and to join new parties involved in the unauthorized transfers.
Memo In Support Of Motion To Amend And Add DefendantsJRachelle
This document is a brief in support of a motion for leave to amend and supplement a complaint and join additional defendants. It summarizes that the plaintiff has discovered new information through discovery that warrants adding new claims, defendants, and factual details to the original complaint. Specifically, it seeks to add Gaither Thompson, Melanie Thompson, and Gina Shelley as defendants as accomplices in removing property from the estate, and to add Susan Brown and her law firm for unlawfully distributing estate property to third parties. The brief argues the amendment is timely and will not prejudice the defendants.
Stern Response to motion to dismiss 8-20-10JRachelle
This document is the Executor's response in opposition to a motion to dismiss filed by Susan M. Brown and The Law Offices of Susan M. Brown. The Executor argues that the motion to dismiss should be denied for three reasons: 1) Brown is raising the same arguments that the court already rejected in granting leave to amend the complaint, 2) the Executor has properly stated claims for both statutory and common law misappropriation of publicity rights, and 3) even if the motion to dismiss is granted, there are six other valid causes of action against Brown that would remain in the case.
This document is a memorandum in support of a motion to dismiss claims against defendants Susan Brown and The Law Offices of Susan Brown. It argues that (1) claims based on California procedural law cannot be brought in South Carolina court, (2) the relevant California statute only applies to acts occurring in California, and (3) the principle of res judicata bars re-litigating issues already decided in a prior motion for sanctions. The memorandum provides background on the representation of defendant Ben Thompson by Susan Brown and the limited allegations against Brown in the amended complaint.
Defendant Roberts filed a motion to dismiss Plaintiff Linda Smith's negligence complaint for failure to state a claim or for a more definite statement. Roberts argues that Smith failed to properly plead the necessary elements of negligence - that Roberts owed a legal duty, breached that duty, and that the breach caused Smith's injury and damages. Specifically, Smith did not allege that Roberts owed her a legal duty. Roberts requests that the court dismiss Smith's claim or require her to provide a more definite statement that properly pleads negligence.
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
Brown Memo In Opposition To Contempt MotionJRachelle
This document is a memorandum filed by attorney Susan Brown in opposition to a motion seeking to hold her in contempt of court. It summarizes the following key points:
1) Defendant Thompson owned a property in the Bahamas called "Horizons" and had a right to possession after Anna Nicole Smith's death.
2) After Smith's death, Defendant Shelley and others entered Horizons to secure it upon being told by Bahamian attorneys and courts to do so immediately.
3) Brown's involvement was limited and she claims to never have publicly disclosed or transferred any materials belonging to Smith's estate in violation of the court order.
Reply In Support Of Motion For Contempt For SbJRachelle
This document is a reply brief in support of a motion for contempt and sanctions against Susan M. Brown. It argues that Brown is in contempt of a court order requiring her to return any estate property in her possession. The brief asserts that Brown has provided shifting explanations to avoid contempt and misrepresents facts, including acknowledging in her deposition that she knew the order's requirements and possessed estate property. The brief contends Brown's conduct satisfies the elements for a finding of civil contempt.
Motion for Leave To Amend And Add Known Jane DoesJRachelle
This document is a motion filed by Howard K. Stern as executor of the estate of Vickie Lynn Marshall (Anna Nicole Smith) in a civil action. It requests leave from the court to amend and supplement the original complaint, join additional defendants, and amend the case caption. The motion states that discovery has revealed new information supporting the original claims and identifying previously unknown defendants. It also describes events that have occurred since the original complaint that could be added. The executor seeks to add claims involving additional conversions of estate property and to join new parties involved in the unauthorized transfers.
Memo In Support Of Motion To Amend And Add DefendantsJRachelle
This document is a brief in support of a motion for leave to amend and supplement a complaint and join additional defendants. It summarizes that the plaintiff has discovered new information through discovery that warrants adding new claims, defendants, and factual details to the original complaint. Specifically, it seeks to add Gaither Thompson, Melanie Thompson, and Gina Shelley as defendants as accomplices in removing property from the estate, and to add Susan Brown and her law firm for unlawfully distributing estate property to third parties. The brief argues the amendment is timely and will not prejudice the defendants.
Stern Response to motion to dismiss 8-20-10JRachelle
This document is the Executor's response in opposition to a motion to dismiss filed by Susan M. Brown and The Law Offices of Susan M. Brown. The Executor argues that the motion to dismiss should be denied for three reasons: 1) Brown is raising the same arguments that the court already rejected in granting leave to amend the complaint, 2) the Executor has properly stated claims for both statutory and common law misappropriation of publicity rights, and 3) even if the motion to dismiss is granted, there are six other valid causes of action against Brown that would remain in the case.
This document is a memorandum in support of a motion to dismiss claims against defendants Susan Brown and The Law Offices of Susan Brown. It argues that (1) claims based on California procedural law cannot be brought in South Carolina court, (2) the relevant California statute only applies to acts occurring in California, and (3) the principle of res judicata bars re-litigating issues already decided in a prior motion for sanctions. The memorandum provides background on the representation of defendant Ben Thompson by Susan Brown and the limited allegations against Brown in the amended complaint.
Defendant Roberts filed a motion to dismiss Plaintiff Linda Smith's negligence complaint for failure to state a claim or for a more definite statement. Roberts argues that Smith failed to properly plead the necessary elements of negligence - that Roberts owed a legal duty, breached that duty, and that the breach caused Smith's injury and damages. Specifically, Smith did not allege that Roberts owed her a legal duty. Roberts requests that the court dismiss Smith's claim or require her to provide a more definite statement that properly pleads negligence.
Motion To Dismiss Raanan Katz Copyright Lawsuitrkcenters
Miami Heat minority owner Raanan Katz does not appreciate the photo of himself circulating on the internet, so he is suing Google and a Miami blogger for refusing to take it down.
And Raanan Katz, RK Centers Owner, apparently has enough money to sue anybody else who posts the photo.
Brown Memo In Opposition To Contempt MotionJRachelle
This document is a memorandum filed by attorney Susan Brown in opposition to a motion seeking to hold her in contempt of court. It summarizes the following key points:
1) Defendant Thompson owned a property in the Bahamas called "Horizons" and had a right to possession after Anna Nicole Smith's death.
2) After Smith's death, Defendant Shelley and others entered Horizons to secure it upon being told by Bahamian attorneys and courts to do so immediately.
3) Brown's involvement was limited and she claims to never have publicly disclosed or transferred any materials belonging to Smith's estate in violation of the court order.
This case involves a lawsuit brought by Benjamin Zipagang and his common-law spouse Myrna Belza against Benjamin's son Darryl Zipagang. Benjamin and Myrna allege that while Benjamin was temporarily living with Darryl, Darryl misappropriated Benjamin's money from a joint bank account that was opened. They claim this resulted in their mortgages falling into arrears and their home eventually being sold in a power of sale proceeding. At the close of the plaintiffs' case, Darryl's counsel brought a motion for a non-suit, arguing the plaintiffs had failed to establish a prima facie case. The judge must now determine if the plaintiffs provided enough evidence to establish a case for Dar
Section 7 of the Evidence Act 1950 deals with facts that are the occasion, cause, or effect of facts in issue or relevant facts. It provides that such facts can be considered relevant. The document discusses the scope and application of Section 7 through examples and case law. It analyzes Section 7 under five grounds - as being the occasion of relevant facts, showing the cause, being the effect, providing opportunity, and constituting the state of things. Case law from both Malaysia and other common law countries is used to illustrate how Section 7 has been applied in practice.
The document discusses the principles of similar fact evidence in Malaysian law. It begins by explaining similar fact evidence and its exceptions under sections 11(b), 14 and 15 of the Evidence Act 1950. It then summarizes several important court cases that shaped the application of similar fact evidence, including Makin v AG for New South Wales, which established the general rule that previous misconduct cannot be used to prove guilt, and the Boardman case, which reformulated the Makin rule. The document analyzes how Malaysian courts have applied the Makin approach to determine whether similar fact evidence is relevant and if its probative value outweighs unfair prejudice.
Relevancy of evidence under section 14, 15, 16 of Evidence Act 1950 (2017-2018)Intan Muhammad
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Motion for Reconsideration att. Doc.109-1 06-24-2016 (Affidavits of Officers ...Alvin Sutherlin, Jr
This document contains affidavits from several police officers involved in executing a search warrant at 505 Jefferson Street in Danville, Virginia on September 25, 2013. The officers state that they were issued body cameras but are unsure if the cameras were activated or working properly during the search. They also say they have not reviewed any footage from that date. Some officers wrote reports about the search but others did not have any involvement beyond being present.
Relevancy of evidence under Section 7 of Evidence Act 1950Intan Muhammad
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Alistair Jones Motion for Summary JudgmentAlistair Jones
Fred Northrop filed a motion for summary judgment against Acme Insurance in a lawsuit alleging sexual discrimination by Northrop's supervisor Helen Redmond. Northrop claims that Redmond offered him a promotion in exchange for sexual favors, and then denied him the promotion and spread false rumors about him after he refused. Northrop argues that as Redmond's actions were in her official capacity as his supervisor for Acme, Acme is liable for sexual discrimination. Northrop is seeking damages, back pay, reinstatement to the denied position, and attorney's fees if found to have experienced discrimination as a motivating factor in being denied the promotion.
Rolfe Jandreski filed an answer to Sandra Jandreski's complaint for absolute divorce and a counterclaim for absolute divorce. In his answer, Rolfe denies the grounds for divorce alleged in Sandra's complaint. In his counterclaim, Rolfe alleges that Sandra was guilty of cruel and inhuman treatment, rendering cohabitation unsafe. Rolfe also claims the parties have irreconcilable differences and that he is the fit person to have custody of their two minor children. Rolfe prays that he be awarded an absolute divorce, a fair property distribution, custody of the children, and child support from Sandra.
This document discusses the author's legal issues related to possession of a stun gun in Pennsylvania. It provides background on the author's 1994 plea agreement for a misdemeanor domestic violence charge and subsequent charges in 2012 for public drunkenness, disorderly conduct, and possession of a stun gun. The author argues that under Pennsylvania and federal law, their 1994 plea prevents them from legally possessing a firearm or stun gun for life. They were charged in 2012 with possession of a stun gun, despite a police officer previously telling them possession was legal, and they believe the police targeted them to ensure they were charged and unable to possess weapons in the future.
This document is a petition form for an alien fiancé(e) visa (I-129F), which collects information about a US citizen petitioner and their alien fiancé(e) to determine eligibility for a K-1 nonimmigrant visa. The petitioner must certify that they intend to marry their alien fiancé(e) within 90 days of their arrival in the US, and that they understand any criminal convictions they disclose could impact the adjudication of the petition.
FindLaw | Holocaust Museum Shooting Suspect's Murder ChargesLegalDocs
This criminal complaint charges James Wenneker Von Brunn with two counts related to a shooting at the United States Holocaust Memorial Museum on June 10, 2009. According to the affidavit, Von Brunn drove to the museum armed with a rifle and shot and killed a security guard when he entered. He was then shot by other security guards and taken into custody. The complaint charges Von Brunn with first degree murder and killing in the course of possessing a firearm in a federal facility based on evidence that he planned and carried out the shooting.
State v. Jernigan- Order Denying Motion for New TrialBrett Adams
This order denies the defendant's motion for a new trial following his conviction of kidnapping, hijacking a motor vehicle, armed robbery, aggravated assault, and other charges. The court finds that the evidence presented at trial, including the victim's testimony that the defendant brandished a gun and forced her to withdraw money from an ATM before raping her, was sufficient to support the jury's verdicts. The court finds no grounds to overturn the verdicts or grant a new trial.
Sample Bail Bond Related Criminal Law MotionsSamuel Partida
A list of common motions filed in a criminal case related to the bail bond are provided. Six sample motions are provided that a prosecutor may typically file. Seven sample motions are provided that a defense attorney may typically file over the span of a typical criminal case.
The document is a 10-page memorandum in support of a motion to suppress evidence from a DUI arrest. It summarizes that the defendant was pulled over allegedly for a faulty tail light but the tail light was functioning properly. The officer questioned the defendant about drinking without cause for suspicion of impairment. The officer arrested the defendant based on "magic words" of impairment without evidence of erratic driving. The memorandum argues the officer lacked probable cause for the traffic stop and arrest, and all evidence obtained should be suppressed as the arrest violated the defendant's constitutional rights.
08/10/12 - MOTION TO STRIKE RESPONSE TO: Motion To Strike Motion To DismissVogelDenise
This document is a motion to strike filed by plaintiff Vogel Denise Newsome in the case of Newsome v. Page Kruger & Holland P.A. et al. in the U.S. District Court for the Southern District of Mississippi. The motion seeks to strike responses filed by defendants in opposition to previous motions by Newsome. Newsome argues the defendants do not dispute her right to a jury trial under Rule 38 of the Federal Rules of Civil Procedure and the 7th Amendment. Newsome also argues Judge Tom S. Lee must recuse himself due to a conflict of interest. Newsome cites statutes requiring recusal when a judge's impartiality may reasonably be questioned.
This document summarizes key aspects of federal criminal defense from a CLE presented by John Teakell. It covers differences between federal and state cases, the roles of federal agencies and the U.S. Attorney's Office, common charges like conspiracy and schemes, investigation techniques, the indictment and grand jury process, plea agreements, cooperation, sentencing calculations under the U.S. Sentencing Guidelines, trials, appeals, and other miscellaneous topics.
This document summarizes a presentation given at a Federal Criminal Defense Law Review CLE on December 8, 2011 in Dallas, TX. It discusses key differences between federal and state criminal cases, including that federal cases tend to be more complex, involve larger dollar amounts, and cover a wider variety of charges like public corruption, immigration, and large drug trafficking. It also outlines the roles of federal agencies in investigations, common charges like conspiracy and fraud schemes, and an overview of the federal criminal process from investigations and indictments to pleas, cooperation, sentencing guidelines, and trials.
This document is the transcript from an initial appearance hearing in federal court for Matthew Wade Beasley, who is charged with assaulting a federal officer. At the hearing, the judge advised Beasley of his rights and the charge against him. A detention hearing was also held, where the government argued Beasley should be detained as a flight risk and danger, citing the alleged assault and Beasley's statements during a standoff with police. Beasley's attorney argued for release, saying his actions were a one-time result of extreme emotional crisis and remorse, and that he posed no danger while in his home during the standoff. The judge took the arguments under advisement.
SMLLC v Geraldine Redmond US BK CT Transcript - Case No. NDO3-12487 - 4-20-05jamesmaredmond
The court denied a motion to amend a complaint objecting to the discharge of debt in a bankruptcy case. The original complaint alleged the debtor failed to disclose assets like a corral and horses in bankruptcy filings. The proposed amendment alleged rental property fraud. The court found the proposed amendment did not relate back to the original complaint under Rule 15(c), as the facts alleged were different. A two-day trial was scheduled for May 31st and June 1st to resolve the original complaint.
Order Granting Addition Of Susan Brown As DefendantJRachelle
This order grants the plaintiff's motion to amend his complaint to add new parties and factual allegations learned during discovery. The plaintiff seeks to add three individuals ("Doe defendants") identified during depositions as being involved in removing property from the estate. The plaintiff also seeks to add an attorney and her law firm who received estate property from one of the defendants. The only opposition comes from the attorney and law firm, but the court finds that allowing the amendments would not be prejudicial or futile. Therefore, the plaintiff's motion to amend is granted.
Brown Opposition To Plaintiff Motion To Amend ComplaintJRachelle
This document is a memorandum filed by Susan M. Brown and the Law Offices of Susan M. Brown in opposition to Howard K. Stern's motion to amend his complaint to join them as additional defendants. The memorandum argues that the motion to amend should be denied on the grounds of prejudice and futility. It asserts that Brown would be prejudiced by the late addition as a defendant since discovery is largely complete. It also argues that the attempts to apply California law are futile since South Carolina law applies, and that the complaint fails to properly plead causes of action under South Carolina law against Brown.
Memo Of Support For Contempt And SanctionsJRachelle
This document provides the background and statement of facts regarding a motion for contempt and sanctions against G. Ben Thompson and Susan M. Brown. It details that Brown consented to a preliminary injunction regarding estate property but failed to disclose that she had already provided estate property hard drives to a third party. It was later discovered that Brown still possessed additional estate property files and documents in violation of the court order. The motion seeks to hold Brown and Thompson in contempt of court and impose sanctions for Brown's failure to fully comply with the court's order regarding returning all estate property.
This case involves a lawsuit brought by Benjamin Zipagang and his common-law spouse Myrna Belza against Benjamin's son Darryl Zipagang. Benjamin and Myrna allege that while Benjamin was temporarily living with Darryl, Darryl misappropriated Benjamin's money from a joint bank account that was opened. They claim this resulted in their mortgages falling into arrears and their home eventually being sold in a power of sale proceeding. At the close of the plaintiffs' case, Darryl's counsel brought a motion for a non-suit, arguing the plaintiffs had failed to establish a prima facie case. The judge must now determine if the plaintiffs provided enough evidence to establish a case for Dar
Section 7 of the Evidence Act 1950 deals with facts that are the occasion, cause, or effect of facts in issue or relevant facts. It provides that such facts can be considered relevant. The document discusses the scope and application of Section 7 through examples and case law. It analyzes Section 7 under five grounds - as being the occasion of relevant facts, showing the cause, being the effect, providing opportunity, and constituting the state of things. Case law from both Malaysia and other common law countries is used to illustrate how Section 7 has been applied in practice.
The document discusses the principles of similar fact evidence in Malaysian law. It begins by explaining similar fact evidence and its exceptions under sections 11(b), 14 and 15 of the Evidence Act 1950. It then summarizes several important court cases that shaped the application of similar fact evidence, including Makin v AG for New South Wales, which established the general rule that previous misconduct cannot be used to prove guilt, and the Boardman case, which reformulated the Makin rule. The document analyzes how Malaysian courts have applied the Makin approach to determine whether similar fact evidence is relevant and if its probative value outweighs unfair prejudice.
Relevancy of evidence under section 14, 15, 16 of Evidence Act 1950 (2017-2018)Intan Muhammad
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Motion for Reconsideration att. Doc.109-1 06-24-2016 (Affidavits of Officers ...Alvin Sutherlin, Jr
This document contains affidavits from several police officers involved in executing a search warrant at 505 Jefferson Street in Danville, Virginia on September 25, 2013. The officers state that they were issued body cameras but are unsure if the cameras were activated or working properly during the search. They also say they have not reviewed any footage from that date. Some officers wrote reports about the search but others did not have any involvement beyond being present.
Relevancy of evidence under Section 7 of Evidence Act 1950Intan Muhammad
P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!
Alistair Jones Motion for Summary JudgmentAlistair Jones
Fred Northrop filed a motion for summary judgment against Acme Insurance in a lawsuit alleging sexual discrimination by Northrop's supervisor Helen Redmond. Northrop claims that Redmond offered him a promotion in exchange for sexual favors, and then denied him the promotion and spread false rumors about him after he refused. Northrop argues that as Redmond's actions were in her official capacity as his supervisor for Acme, Acme is liable for sexual discrimination. Northrop is seeking damages, back pay, reinstatement to the denied position, and attorney's fees if found to have experienced discrimination as a motivating factor in being denied the promotion.
Rolfe Jandreski filed an answer to Sandra Jandreski's complaint for absolute divorce and a counterclaim for absolute divorce. In his answer, Rolfe denies the grounds for divorce alleged in Sandra's complaint. In his counterclaim, Rolfe alleges that Sandra was guilty of cruel and inhuman treatment, rendering cohabitation unsafe. Rolfe also claims the parties have irreconcilable differences and that he is the fit person to have custody of their two minor children. Rolfe prays that he be awarded an absolute divorce, a fair property distribution, custody of the children, and child support from Sandra.
This document discusses the author's legal issues related to possession of a stun gun in Pennsylvania. It provides background on the author's 1994 plea agreement for a misdemeanor domestic violence charge and subsequent charges in 2012 for public drunkenness, disorderly conduct, and possession of a stun gun. The author argues that under Pennsylvania and federal law, their 1994 plea prevents them from legally possessing a firearm or stun gun for life. They were charged in 2012 with possession of a stun gun, despite a police officer previously telling them possession was legal, and they believe the police targeted them to ensure they were charged and unable to possess weapons in the future.
This document is a petition form for an alien fiancé(e) visa (I-129F), which collects information about a US citizen petitioner and their alien fiancé(e) to determine eligibility for a K-1 nonimmigrant visa. The petitioner must certify that they intend to marry their alien fiancé(e) within 90 days of their arrival in the US, and that they understand any criminal convictions they disclose could impact the adjudication of the petition.
FindLaw | Holocaust Museum Shooting Suspect's Murder ChargesLegalDocs
This criminal complaint charges James Wenneker Von Brunn with two counts related to a shooting at the United States Holocaust Memorial Museum on June 10, 2009. According to the affidavit, Von Brunn drove to the museum armed with a rifle and shot and killed a security guard when he entered. He was then shot by other security guards and taken into custody. The complaint charges Von Brunn with first degree murder and killing in the course of possessing a firearm in a federal facility based on evidence that he planned and carried out the shooting.
State v. Jernigan- Order Denying Motion for New TrialBrett Adams
This order denies the defendant's motion for a new trial following his conviction of kidnapping, hijacking a motor vehicle, armed robbery, aggravated assault, and other charges. The court finds that the evidence presented at trial, including the victim's testimony that the defendant brandished a gun and forced her to withdraw money from an ATM before raping her, was sufficient to support the jury's verdicts. The court finds no grounds to overturn the verdicts or grant a new trial.
Sample Bail Bond Related Criminal Law MotionsSamuel Partida
A list of common motions filed in a criminal case related to the bail bond are provided. Six sample motions are provided that a prosecutor may typically file. Seven sample motions are provided that a defense attorney may typically file over the span of a typical criminal case.
The document is a 10-page memorandum in support of a motion to suppress evidence from a DUI arrest. It summarizes that the defendant was pulled over allegedly for a faulty tail light but the tail light was functioning properly. The officer questioned the defendant about drinking without cause for suspicion of impairment. The officer arrested the defendant based on "magic words" of impairment without evidence of erratic driving. The memorandum argues the officer lacked probable cause for the traffic stop and arrest, and all evidence obtained should be suppressed as the arrest violated the defendant's constitutional rights.
08/10/12 - MOTION TO STRIKE RESPONSE TO: Motion To Strike Motion To DismissVogelDenise
This document is a motion to strike filed by plaintiff Vogel Denise Newsome in the case of Newsome v. Page Kruger & Holland P.A. et al. in the U.S. District Court for the Southern District of Mississippi. The motion seeks to strike responses filed by defendants in opposition to previous motions by Newsome. Newsome argues the defendants do not dispute her right to a jury trial under Rule 38 of the Federal Rules of Civil Procedure and the 7th Amendment. Newsome also argues Judge Tom S. Lee must recuse himself due to a conflict of interest. Newsome cites statutes requiring recusal when a judge's impartiality may reasonably be questioned.
This document summarizes key aspects of federal criminal defense from a CLE presented by John Teakell. It covers differences between federal and state cases, the roles of federal agencies and the U.S. Attorney's Office, common charges like conspiracy and schemes, investigation techniques, the indictment and grand jury process, plea agreements, cooperation, sentencing calculations under the U.S. Sentencing Guidelines, trials, appeals, and other miscellaneous topics.
This document summarizes a presentation given at a Federal Criminal Defense Law Review CLE on December 8, 2011 in Dallas, TX. It discusses key differences between federal and state criminal cases, including that federal cases tend to be more complex, involve larger dollar amounts, and cover a wider variety of charges like public corruption, immigration, and large drug trafficking. It also outlines the roles of federal agencies in investigations, common charges like conspiracy and fraud schemes, and an overview of the federal criminal process from investigations and indictments to pleas, cooperation, sentencing guidelines, and trials.
This document is the transcript from an initial appearance hearing in federal court for Matthew Wade Beasley, who is charged with assaulting a federal officer. At the hearing, the judge advised Beasley of his rights and the charge against him. A detention hearing was also held, where the government argued Beasley should be detained as a flight risk and danger, citing the alleged assault and Beasley's statements during a standoff with police. Beasley's attorney argued for release, saying his actions were a one-time result of extreme emotional crisis and remorse, and that he posed no danger while in his home during the standoff. The judge took the arguments under advisement.
SMLLC v Geraldine Redmond US BK CT Transcript - Case No. NDO3-12487 - 4-20-05jamesmaredmond
The court denied a motion to amend a complaint objecting to the discharge of debt in a bankruptcy case. The original complaint alleged the debtor failed to disclose assets like a corral and horses in bankruptcy filings. The proposed amendment alleged rental property fraud. The court found the proposed amendment did not relate back to the original complaint under Rule 15(c), as the facts alleged were different. A two-day trial was scheduled for May 31st and June 1st to resolve the original complaint.
Order Granting Addition Of Susan Brown As DefendantJRachelle
This order grants the plaintiff's motion to amend his complaint to add new parties and factual allegations learned during discovery. The plaintiff seeks to add three individuals ("Doe defendants") identified during depositions as being involved in removing property from the estate. The plaintiff also seeks to add an attorney and her law firm who received estate property from one of the defendants. The only opposition comes from the attorney and law firm, but the court finds that allowing the amendments would not be prejudicial or futile. Therefore, the plaintiff's motion to amend is granted.
Brown Opposition To Plaintiff Motion To Amend ComplaintJRachelle
This document is a memorandum filed by Susan M. Brown and the Law Offices of Susan M. Brown in opposition to Howard K. Stern's motion to amend his complaint to join them as additional defendants. The memorandum argues that the motion to amend should be denied on the grounds of prejudice and futility. It asserts that Brown would be prejudiced by the late addition as a defendant since discovery is largely complete. It also argues that the attempts to apply California law are futile since South Carolina law applies, and that the complaint fails to properly plead causes of action under South Carolina law against Brown.
Memo Of Support For Contempt And SanctionsJRachelle
This document provides the background and statement of facts regarding a motion for contempt and sanctions against G. Ben Thompson and Susan M. Brown. It details that Brown consented to a preliminary injunction regarding estate property but failed to disclose that she had already provided estate property hard drives to a third party. It was later discovered that Brown still possessed additional estate property files and documents in violation of the court order. The motion seeks to hold Brown and Thompson in contempt of court and impose sanctions for Brown's failure to fully comply with the court's order regarding returning all estate property.
SC Opinion and Order - motion for comtemptJRachelle
The court granted in part and denied in part the plaintiff's motion for contempt and sanctions. The court found Susan Brown, the attorney, in contempt for violating a consent order requiring her to turn over all copies of estate property. However, the court did not find Ben Thompson, Brown's former client, in contempt as there was no clear evidence he violated the order. As a sanction, the court ordered Brown to pay the plaintiff's reasonable attorney's fees and costs for bringing the contempt motion, but no other punitive sanctions. The court also ordered Brown and Thompson to turn over any remaining estate property.
Scott Joye Motion For Joinder To Brown Response to Motion for SanctionsJRachelle
This document is a motion filed in a civil case in the United States District Court for South Carolina. The motion requests that the defendant G. Ben Thompson be allowed to join the response filed by another defendant, Susan M. Brown, to a motion for sanctions filed by the plaintiff. The motion states that the allegations in the plaintiff's motion for sanctions are the same against both defendants. The attorney for G. Ben Thompson asks to adopt the answer filed by Susan M. Brown in response to the motion for sanctions.
This document provides a status report regarding a motion for contempt and sanctions filed by Howard K. Stern as executor of Vickie Lynn Marshall's estate against several defendants, including Susan M. Brown and G. Ben Thompson. It summarizes the procedural history of the motion, noting that it has been fully briefed but not yet heard by the court. The parties state they are ready to proceed with a hearing once the court resets it.
GEORGIA ORDER Denying Quash Subpoena Of S. BrownJRachelle
This document provides background information on a legal dispute over property belonging to the estate of Anna Nicole Smith. It summarizes that Smith's executor is seeking documents and testimony from Susan Brown, who represented individuals accused of removing property from Smith's home after her death. Brown moved to quash the subpoena, while the executor seeks to compel compliance. The court will rule on these motions.
Brown reply memo support motion to dismissJRachelle
This document is the Brown Defendants' reply memorandum in support of their motion to dismiss portions of Howard Stern's amended complaint. It argues that the motion to dismiss is not precluded by the court's prior ruling allowing the amended complaint. It also argues that California procedural law, including its probate code and publicity rights statute, does not apply in this South Carolina district court case. Finally, it asserts that the publicity rights statute is not applicable to the Brown Defendants' alleged actions of providing materials to another law firm.
09/03/14 - LACK OF JURISDICTION - RESPONSE TO 08/12/14 JUDGE RUSSELL MFSOE ENTRYVogelDenise
This document discusses a court case between Anna Louise Inn (Plaintiff) and Denise Newsome (Defendant). It asserts that the court lacks jurisdiction due to incomplete service of process. It reiterates criminal complaints against the Plaintiff, court, and others for their role in legal wrongdoings. These include threats made against the Defendant, filing a frivolous eviction action, fraud upon the court, and other crimes. The document maintains the Defendant properly contested the eviction lawsuit and notified the involved parties about their criminal acts, providing her the right to pursue criminal and civil complaints against them.
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Reply In Support Of Motion To Amend And Add Brown Law Firm
1. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
HOWARD K. STERN, as Executor of the )
Estate of Vickie Lynn Marshall, )
a/k/a Vickie Lynn Smith, ) Civil Action No. 4:08-cv-2753-TLW
a/k/a Vickie Lynn Hogan, )
a/k/a Anna Nicole Smith, )
)
Plaintiff, )
)
vs. )
)
STANCIL SHELLEY, )
a/k/a Ford Shelley, )
G. BEN THOMPSON, )
and John or Jane Doe 1-12 whose true names )
are unknown, )
)
Defendants. )
/
REPLY IN SUPPORT OF
THE EXECUTOR’S MOTION FOR LEAVE TO AMEND AND SUPPLEMENT
COMPLAINT; AND FOR JOINDER OF ADDITIONAL DEFENDANTS
AS IT CONCERNS SUSAN M. BROWN1
Susan M. Brown – an officer of the court – has committed numerous wrongful acts
concerning Estate property; yet, in her response brief she attempts to avoid appearing before this
Court to be held to account for those actions. Neither the law nor the facts, however, support her
attempt to avoid becoming a defendant in the above-captioned action where she will have to
answer for her wrongful conduct.
1
The Executor has consented to an extension of time for Ben Thompson to file a response to the
Executor’s Motion for Leave to Amend and Supplement Complaint; and for Joinder of
Additional Defendants.
1
2. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 2 of 17
I. SUSAN BROWN IS NOT IMMUNE FROM LIABILITY FOR HER CONDUCT.
Brown2 is correct that, 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). Brown, however, ignores the fact that both Ford Shelley and
Ben Thompson, her purported clients, testified that they did not authorize her to distribute Estate
property to The O’Quinn Firm:
Q. And did you ever authorize Susan Brown to give any of those items or copies of
them to anyone other than what she turned over to my law firm?
A. I have never authorized her to turn over even that to you; okay?
[Shelley Dep. (Vol. 1), at 164.]3
Q. Did you authorize Ms. Brown to provide Anna Nicole Smith’s hard drives or
copies of her hard drives to Neil McCabe?
A. No.
(B. Thompson Dep., at 152.)4 Accordingly, Brown was not acting within the scope of her
representation of Shelley or Thompson when she distributed Estate property to The O’Quinn
Firm, and the Executor is entitled to assert claims against her for that unauthorized conduct.
Moreover, an attorney is not protected from liability for taking illegal actions. Brown’s
participation in various criminal acts as it concerns the property exposes her to liability. See Bast
v. Cohen, Dunn, & Sinclair, P.C., 59 F.3d 492, 495 (4th Cir. 1995) (liability may exist for a
lawyer who knowingly engages in illegal conduct with a client to the detriment of a third party).
2
For the sake of consistency with Brown’s response brief, “Brown” shall refer to Susan M.
Brown and The Law Offices of Susan M. Brown, P.C.
3
A true and correct copy of relevant portions of Volume 1 of the Deposition of Stancil Ford
Shelley, Jr., taken June 2, 2009, is attached hereto as Exhibit A.
4
A true and correct copy of the relevant portions of the Deposition of G. Ben Thompson, taken
June 5, 2009, is attached hereto as Exhibit B.
2
3. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 3 of 17
Presumably the reasoning for this is the same as that underlying the crime-fraud exception to the
attorney-client privilege: public policy prohibits a criminal or fraudulent act from falling within
the scope of an attorney’s representation of a client. Contrary to Brown’s contentions, her
conduct is not akin to a lawyer simply filing pleadings in the zealous pursuit of a lawful claim for
a client (Resp. Br., at 10); Brown has engaged in criminal acts regarding Estate property. A
federal court has already determined that Brown’s conduct with respect to the Estate property in
its entirety – not just Brown’s distribution of the property to The O’Quinn Firm – implicates the
crime-fraud exception to the attorney-client privilege. (See Ex. I to the Amended Compl.) Brown
cannot seriously contend that an attorney who engages in criminal or tortious conduct at the
direction of or in concert with a client is immune from liability to the aggrieved party.
Accordingly, Brown is not immune from liability to the Executor for her conduct with respect to
the Estate property.
II. ANY DELAY IN FILING IS ATTRIBUTABLE TO BROWN’S CONDUCT.
Brown contends that adding her as a defendant to this lawsuit now would prejudice her.
(Resp. Br., at 2-5.) The sole basis upon which Brown contends that she will suffer prejudice is
that the Executor delayed in seeking to add her as a defendant. (See id., at 2-3.) The Executor,
however, could not seek to add Brown until he had a good faith basis upon which to contend that
Brown (i) was acting outside the scope of her representation of Shelley and Thompson; and
(ii) had engaged in criminal or fraudulent acts concerning the Estate property. The Executor
succeeded in obtaining this evidence through the depositions of Ford Shelley, Ben Thompson,
Gina Shelley, Gaither Thompson, II, and Melanie Thompson. These depositions were taken
between June 2, 2009 and June 5, 2009, and Brown was present for the second day of Ford
Shelley’s deposition and all of Ben Thompson’s, Gina Shelley’s, Gaither Thompson, II’s, and
3
4. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 4 of 17
Melanie Thompson’s depositions. It was first made clear to Brown during these depositions that
she may be added as a defendant in this action. Accordingly, the depositions of Ben Thompson
and Melanie Thompson were left open because “a potential conflict” had arisen regarding
Brown’s representation of Ben Thompson, Gaither Thompson, and Melanie Thompson – namely
that Brown was potentially going to become a defendant in this action. (See B. Thompson Dep.,
at 157.) The Executor’s intent to potentially add Brown as a defendant was again confirmed in
the Joint Request for Status Conference, submitted to this Court on July 6, 2009. [DE 58.]
As was stated to the Court in the Joint Request for Status Conference, out of an
abundance of caution, the Executor wanted to depose Brown prior to seeking leave to add her as
a defendant. When the Executor served a subpoena for Brown’s deposition, however, Brown
moved to quash it. When Brown’s motion to quash was denied, the Executor promptly deposed
her on October 5, 2009. Satisfied that there was a sufficient basis to add Brown and her law firm
as defendants to this action, the Executor promptly sought leave of court to add Brown and her
law firm as defendants on October 28, 2009. [DE 78.] Any delay in seeking leave to add Brown
as a defendant is purely a product of her own delay by refusing to sit for a deposition without an
order compelling her to do so. Indeed, in its Order dated October 2, 2009, this Court recognized
Brown’s pattern of delay. [DE 72.]
Although the Executor is not opposed to a modification of the Scheduling Order to
provide Brown an additional, albeit limited, time for discovery once she becomes a defendant in
this action, it is unclear why she needs it. The Executor has not raised any new legal theories.
See Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986). Brown, as counsel-of-
record for Ben Thompson, engaged in written discovery and depositions regarding the legal
theories advanced by the Executor in this action. Surely Brown is not arguing that she would
4
5. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 5 of 17
have done a better job of protecting her own interests throughout discovery than she did in
protecting her clients’ interests as their attorney. As attorney for Ben Thompson, Brown has had
ample opportunity to conduct discovery into “the origin and the status of the photographs and
videos in question” (see Resp. Br., at 4), the same of which were already part of the basis for the
Executor’s allegations against Ford Shelley and Ben Thompson in this action. Moreover, Brown,
as attorney for Ben Thompson, has had sufficient opportunity to conduct discovery related to the
damages suffered by the Estate. (See Resp. Br., at 4.)
Brown was an attorney in this action since its inception and has had opportunity to
conduct discovery into the merits of the Executor’s claims on behalf of her clients. Brown has
been aware that she would likely be added as a defendant since the first week of June 2009. In
the Amended Complaint, the Executor seeks to add no new theories of recovery. Under these
circumstances, Brown will suffer no prejudice in being added as a defendant in this action.
III. THE CALIFORNIA STATUTORY CLAIMS APPLY TO BROWN’S CONDUCT.5
Brown claims that the Amended Complaint against her is futile insofar as it includes
claims under California Civil Code § 3344.1, California Business and Professions Code § 17200,
et seq., and California Probate Code § 850, et seq.6 Although, ideally, Brown would be hailed to
California to defend against these claims, potential lack of personal jurisdiction resulted in filing
the claims in South Carolina. Given that the injury contemplated under these statutes, however,
5
While a full discussion of conflict of laws analysis is beyond the scope of this Reply Brief,
which Local Rules limit to fifteen pages – indeed, Brown devotes only two pages to its
discussion in her brief – the Executor is willing to more fully brief the issue upon the Court’s
request. What complicates, and what in many way requires a finding that California substantive
law applies, is that the allegations in the Amended Complaint concern unlawful acts committed
by the Defendants against the Estate in multiple jurisdictions, including California, South
Carolina, Florida, Texas, Georgia, and Missouri. Under an appropriate conflict of laws analysis,
California law will emerge as the law that should be applied to all claims.
6
It is curious that Brown now raises for herself defenses she failed to raise for her client.
5
6. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 6 of 17
occurred to the Estate in California, the Executor was entitled to bring these California statutory
claims against Brown in South Carolina where she is subject to personal jurisdiction.
A. California Civil Code § 3344.1.
California’s commercial misappropriation statute, California Civil Code § 3344.1, creates
a postmortem right of publicity. See KNB Enters. v. Matthews, 92 Cal. Rptr.2d 713, 715 n.2
(Cal. App. 2d 2000). Although South Carolina courts apparently have not analyzed choice of law
considerations in the context of “right of publicity,” South Carolina has recognized the right as a
property right. Gignilliat v. Gignilliat, Savitz, & Bettis, LLP, No. 26735, 2009 WL 3246789, at
*4-5 (S.C. Oct. 12, 2009).7 Under the concept of property rights, when a defendant
misappropriates a plaintiff’s right of publicity, the injury occurs in the domicile of the plaintiff.
See, e.g., Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1445, n.5 (11th Cir. 1998)
(“Because Allison resides in Alabama, treatment of right of publicity claims as property actions
likely would result in application of Alabama substantive law.”). Indeed, the majority rule for
courts that have considered whether a postmortem right of publicity even exists is to look to the
state of domicile at the time of death. See, e.g., Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278,
281 (2d Cir. 1981). This principle makes sense because the right of publicity, like one’s
reputation, is an intangible interest, and, under defamation law which considers injury to
reputation, the injury occurs in the plaintiff’s domicile. See Wells v. Liddy, 186 F.3d 505, 521-
23 (1999); see also Gignilliat, 2009 WL 3246789, at *7-8 (distinguishing between conversion
claims for personal chattel and commercial misappropriation claims for intangible rights of
7
A true and correct copy of the opinion is attached hereto as Exhibit C.
6
7. 4:08-cv-02753-TLW -TER Date Filed 12/07/09 Entry Number 95 Page 7 of 17
publicity). Because the harm to Ms. Smith’s property right of publicity occurred in California,
the California commercial misappropriation statute applies to Brown’s conduct.8
B. California Business and Professions Code § 17200, et seq.
Under the doctrine of lex loci delicti, California law applies to the Executor’s unfair
competition claim where, as here, the plaintiff’s domicile, principal activities, and greatest harm
suffered under the alleged cause of action occurred in the same state. See Neuralstem, Inc. v.
StemCells, Inc., No. AW-08-CV-1173, 2009 WL 2412126, at *3 (D. Md. Aug. 4, 2009) (holding
that California law applied under lex loci delicti and, therefore, considering plaintiff’s Cal. Bus.
& Prof. § 17200 claim).9 This is particularly true where, as here, the plaintiff has not conducted
business in the state where the action is pending or had any contacts with the state where the
action is pending other than filing suit in that state. See id. The Executor has properly alleged
that the Estate’s domicile is California and the greatest harm to the Estate through Brown’s
actions occurred in California. (See Am. Compl., ¶¶ 12, 28.) If Brown wants to contest that the
Estate did not suffer the harm alleged in California, then that is an evidentiary issue with respect
to which she has provided no support and which is inappropriate at this stage in the proceeding.
Accordingly, the California unfair competition statute applies to Brown’s conduct.
C. California Probate Code § 850 et seq.
As discussed above, California substantive law applies to the Executor’s claims under the
doctrine of lex loci delicti because, among other reasons, the Estate’s domicile, its principal
activities, and state in which it suffered the greatest harm as a result of Brown’s conduct is the
State of California. Count Two of the Amended Complaint is a claim for equitable relief codified
8
Brown appears to cite Cal. Civ. Code § 3344.1(n) to suggest that it is a choice of law provision
in itself. (Resp. Br., at 6.) California courts have consistently rejected the assertion proffered by
Brown. Cairns v. Franklin Mint Co., 292 F.3d 1139, 1147-48 (9th Cir. 2002).
9
A true and correct copy of the opinion is attached hereto as Exhibit D.
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in the California Probate Code. See Cal. Prob. Code § 850. Accordingly, the statute is not merely
a procedural vehicle but provides the right to certain relief, namely an order compelling a person
to surrender wrongfully withheld estate property.
Even if Section 850 of the California Probate Code is merely a procedural vehicle
through which an aggrieved estate may recover its property, the statute provides a substantive
right to double damages upon a finding by the court that a person “has in bad faith wrongfully
taken, concealed, or disposed of property belonging to the estate of a decedent. . . .” Cal. Prob.
Code § 859. South Carolina recognizes issues of damages awards as substantive law not
procedural law. Lister v. NationsBank of Delaware, N.A., 329 S.C. 133, 153, 494 S.E.2d 449,
460 (Ct. App. 1997) (“Under traditional South Carolina choice of law principles and the
Restatement’s modern choice of law test, this Court comes to the ineluctable conclusion that the
issue of punitive damages must be decided under South Carolina substantive law.”).
Accordingly, the Estate is entitled to pursue double damages against Brown pursuant to
California Probate Code § 859 for her wrongful taking of Estate property.
IV. THE REMAINING CLAIMS AGAINST BROWN HAVE BEEN PROPERLY
PLED UNDER EITHER CALIFORNIA OR SOUTH CAROLINA LAW.
The application of California or South Carolina substantive law has no bearing on the
remaining claims against Brown because the Executor has properly pleaded facts that satisfy the
elements of the claims in either jurisdiction.
A. Count One: Conversion.
Count One against Brown is a claim for conversion. Under California law, a cause of
action for conversion requires allegations of a plaintiff’s ownership or right to possession of
property; a defendant’s wrongful act toward or disposition of the property, interfering with the
plaintiff’s possession; and damage to the plaintiff. McKell v. Washington Mut., Inc., 49 Cal.
8
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Rptr.3d 227, 255 (Cal. App. 4th 2006). Under South Carolina law, “[c]onversion is the
unauthorized assumption and exercise of the right of ownership over goods or personal chattels
belonging to another, to the alteration of the condition or the exclusion of the owner’s right.”
Crane v. Citicorp. Nat’l Servs., Inc., 313 S.C. 70, 73, 437 S.E.2d 50, 52 (1993) (other portions of
holding superseded by statute as stated in Singleton v. Stokes Motors, Inc., 358 S.C. 369, 595
S.E.2d 461 (2004)). “Conversion may arise by some illegal use or misuse, or by illegal detention
of another’s personal property.” Regions Bank. v. Schmauch, 354 S.C. 648, 667, 582 S.E.2d 432,
442 (Ct. App. 2003). Conversion is a wrongful act which emanates by either a wrongful taking
or wrongful detention. Id.
The Executor has properly pleaded a claim for conversion against Brown under either
California or South Carolina law. The Executor has pleaded that the Estate owns the property
converted by Brown (see, e.g., Am. Compl., ¶¶ 200-02); without authorization Brown exercised
dominion and control over the property, which are acts constituting the exercise of the right of
ownership of the property (id., at ¶¶ 200-02, 208); and the Estate suffered damages (id., at
¶¶ 210-11.) The cases cited by Brown make no reference whatsoever to a requirement that a
plaintiff plead that the defendant converting property has “converted the property to her own
use.” (Resp. Br., at 7.) Accordingly, the Executor has properly pleaded a conversion claim
against Brown.
B. Count Two: Wrongful Taking of Estate Property (Cal. Prob. Code
§ 850 et seq.)
As discussed above, the California Probate Code provides a means through which a
California Estate, like the Estate of Anna Nicole Smith, may recover property wrongfully taken
from the Estate. In the event that the person wrongfully taking estate property had in bad faith
wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent,
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double damages are recoverable. Cal. Prob. Code § 859. The Executor has properly stated a
claim against Brown. (See Am. Compl., ¶¶ 216-23.) Indeed, Brown only challenges this claim on
the basis that it is a California procedural vehicle that cannot be pleaded in South Carolina.
Accordingly, the Executor’s claim for wrongful taking of estate property has been properly
pleaded.
C. Count Three: Statutory and Common Law Commercial Appropriation of
Right of Publicity (Cal. Civ. Code § 3344.1).
Under California law, the right of publicity survives the death of a celebrity. Thus, any
person who uses, without authorization, a deceased celebrity’s “name, voice, signature,
photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for the
purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or
services” shall be liable for damages. Cal. Civ. Code § 3344.1 (emphasis added). Therefore,
there are three scenarios in which this statute may be violated:
(1) a person uses a deceased celebrity’s name, voice, signature, photograph, or
likeness, in any manner, on or in products, merchandise, or goods;
(2) a person uses a deceased celebrity’s name, voice, signature, photograph, or
likeness, in any manner, for the purposes of advertising or selling; or
(3) a person uses a deceased celebrity’s name, voice, signature, photograph, or
likeness, in any manner, for soliciting purchases of, products, merchandise, goods, or services.
See Cal. Civ. Code § 3344.1. Accordingly, contrary to Brown’s contentions, the Executor was
not required to plead that Brown used Ms. Smith’s “likeness for the purpose of advertising or
selling goods or services.” (Resp. Br., at 7.)
The Executor has properly pleaded that Brown used Ms. Smith’s name, voice,
photograph, and likeness contained in certain of the estate property without consent – all
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appropriate elements of the cause of action. (Am. Compl., ¶ 229.) Moreover, the Executor
pleaded that Brown’s conduct constitutes “use” within the meaning of the statute. (Id., at ¶ 230.)
Nevertheless, the Executor has actually gone beyond what is required of him to state a claim and
additionally pleaded that Brown used Ms. Brown’s name, voice, photograph, and likeness for the
purpose of selling or soliciting services insofar as she displayed and transferred the same to The
O’Quinn Law Firm. [Id., at ¶ 121 (“Brown transferred the two (2) hard drives to The O’Quinn
Law Firm in an attempt to gain the benefit of The O’Quinn Law Firm’s representation of
Ford . . . ”).] Thus, Brown solicited The O’Quinn Law Firm’s services through her unlawful use
of Ms. Smith’s name, voice, photograph, and likeness.
If the Court determines that this California statute does not apply, the Executor still has
stated a claim for common law misappropriation of right to publicity under South Carolina law.
See Gignilliat, 2009 WL 3246789 at *4-5. Therefore, the Executor has properly pleaded a
commercial appropriation claim against Brown.
D. Count Four: Unjust Enrichment/Restitution.
Under California law, unjust enrichment and restitution are synonymous. See McBride v.
Boughton, 20 Cal. Rptr.3d 115, 121 (Cal. App. 1st 2004). Therefore, a claim for unjust
enrichment exists when a defendant receives and unjustly retains the benefit at the expense of
another. Peterson v. Cellco P’ship, 80 Cal. Rptr.3d 316, 323 (Cal. App. 4th 2008). Under South
Carolina law, a party “may be unjustly enriched when it has and retains benefits or money which
in justice and equity belong to another.” Dema v. Tenet Physician Servs.-Hilton Head, Inc., 383
S.C. 115, 123, 678 S.E.2d 430, 434 (2009).
The Executor has properly pleaded a claim against Brown for unjust enrichment. Brown
claims that the Executor’s unjust enrichment claim would be futile because he has “failed to
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allege how Brown could possibly have been unjustly enriched by her brief retention of copies of
her own client’s hard drives.” (Resp. Br., at 7.) As an initial matter, the Executor was not
required to set forth in the Amended Complaint the measure of Brown’s unjust enrichment as
Brown apparently assumes he should have; the evidence at trial will demonstrate the amount of
her unjust enrichment. Nevertheless, the Amended Complaint is clear that Brown’s retention of
Estate property – not merely her ‘brief’ retention of hard drives which Brown contends were
Shelley’s but which no one disputes contained Estate property – prohibited the Executor from
entering certain business deals concerning Estate property. (See, e.g., Am. Compl., ¶ 232.)
Additionally, Brown used the property to gain advantage for her and her clients. In doing so,
Brown unjustly retained a benefit at the expense of the Executor, which equity requires she
disgorge. Accordingly, the Executor’s unjust enrichment claim against Brown has been properly
pleaded.
E. Count Five: Unfair Competition (Cal. Bus. & Prof. Code § 17200 et seq.)
In her response brief, Brown does not contend that the Executor failed to properly plead
Count Five of the Amended Complaint.10 In the event, however, that the Court determines that
the California statute does not apply, then the Executor has still properly pleaded a claim for
unfair competition under South Carolina law. See Atlanta Gas Light Co. v. Roberts, 388 F. Supp.
1383 (D.S.C. 1974). Accordingly, the Executor has properly stated a claim against Brown for
unfair competition.
10
Brown’s response brief mentions that Count Five is based on a California statute and,
therefore, cannot apply in South Carolina, but Brown never elaborates with respect to Count
Five. Moreover, the Executor has previously addressed this issue above.
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F. Count Six: Violation of Computer Fraud and Abuse Act (18 U.S.C.
§ 1030(a)(5)).
Because Count Six of the Amended Complaint rests upon federal law, Brown’s
California-South Carolina distinction does not apply. A plaintiff states a valid claim under the
Computer Fraud and Abuse Act when the plaintiff alleges that:
(i) someone knowingly causes transmission of a program, information, code, or
command, and as a result of such conduct, intentionally causes damage without authorization, to
a protected computer; or
(ii) someone intentionally accesses a protected computer without authorization, and
as a result of such conduct, recklessly causes damage; or
(iii) someone intentionally accesses a protected without authorization, and as a result
of such conduct causes damage and loss, and causes losses of at least $5,000 in a one-year
period. 18 U.S.C. § 10130(a)(5).
The Executor’s Amended Complaint strictly pleads these elements against Brown. (Am. Compl.,
¶¶ 251-55.)
Brown attempts to argue evidence not in the record as to why Count Six is futile. (Resp.
Br., 8.) Even on a motion to dismiss, however, which is the standard that is to be applied to the
futility analysis, the Executor’s allegations must be accepted as true. See Ashcroft v. Iqbal, ---
U.S. ---, 129 S.Ct. 1937, 1949-50 (2009). The Executor has alleged that Ms. Smith’s computers
were protected computers, that Brown and Shelley transmitted certain commands on the
protected computers, that Brown and Shelley deleted certain information from the protected
computers, and that the Estate suffered the requisite damages as a result. (Am. Compl., ¶¶ 249-
55.) While Brown makes the factual contention that she merely ‘held’ the hard drives for her
client, she does not attempt to address how proprietary information from Ms. Smith’s hard drives
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made its way onto her personal and law firm computer. (See Resp. Br., at 8.) Accordingly, the
Executor has pleaded a proper claim against Brown for violation of the Computer Fraud and
Abuse Act.
G. Count Seven: Civil Conspiracy.
With respect to Count Seven, Brown summarily alleges that the Executor failed to set out
the elements of civil conspiracy without identifying what is missing or citing any authority.
Under California law, a civil conspiracy exists when the defendants (1) form and operate a
conspiracy; (2) that damages a plaintiff; (3) from a wrongful act done in furtherance of the
common design. Rusheen v. Cohen, 39 Cal. Rptr.3d 516, 526 (Cal. App. 4th 2006). Under South
Carolina law, the three elements of a civil conspiracy are (1) a combination of two or more
persons; (2) for the purpose of injuring the plaintiff; and (3) causing plaintiff special damage.
Hackworth v. Greywood at Hammett, LLC, 385 S.C. 110, 682 S.E.2d 871, 874 (2009).
Under either state’s law, the Executor has properly alleged a claim of civil conspiracy
against Brown. The Executor has alleged that the Defendants formed an agreement to convert
and wrongfully take Estate property (i.e., to injure the Estate), and thereby caused the Estate
damages, including the specifically alleged special damages of the loss of licensing
opportunities. (Am. Compl., ¶¶ 257-59.) Accordingly, the civil conspiracy claim against Brown
has been properly pleaded.
V. THE CLAIMS AGAINST BROWN ARE DISTINCT FROM BROWN’S
CONTEMPT.
A cursory comparison of the Amended Complaint and the Motion for Contempt and
Sanctions [DE 79] reveals that the two are separate and distinct. Brown’s contention that “most
of the allegations” against Brown in the Amended Complaint are based upon Brown’s violation
of the Consent Order Entering Preliminary Injunction is factually incorrect. (See Resp. Br., at
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10.) Indeed, a small portion of the conduct upon which the Executor seeks relief against Brown
occurred after entry of the Injunction. (See, e.g., Am. Compl., ¶¶ 201-02.)
Moreover, Brown ignores that there are different elements for a finding of civil contempt
and the causes of action alleged against Brown. Surely, one can commit tortious acts without
simultaneously violating a court order. The issues before the Court on the Motion for Contempt
and Sanctions are different from those before the Court in the Amended Complaint and,
therefore, collateral estoppel would not apply.
VI. CONCLUSION.
The Executor has satisfied the low threshold permitting him to amend and supplement his
Complaint to add Brown as a defendant. Therefore, as against Brown, the Executor respectfully
requests that his motion be granted and this Court enter an order:
(1) granting leave for the Executor to file his amended and supplemented complaint;
(2) joining Susan M. Brown and The Law Offices of Susan M. Brown, P.C. as party
defendants; and
(3) amending the caption of this action accordingly.
The Executor further requests that Brown be required to file a pleading in response, if
any, not more than ten days after service of the First Amended Complaint.
Respectfully submitted this 7th day of December, 2009.
/s/ L. Lin Wood
L. Lin Wood
(Georgia Bar No. 774588) (Pro hac vice)
Lin.Wood@BryanCave.com
Nicole Jennings Wade
(Georgia Bar No. 390922) (Pro hac vice)
Nicole.Wade@BryanCave.com
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Luke A. Lantta
(Georgia Bar No. 141407) (Pro hac vice)
Luke.Lantta@BryanCave.com
BRYAN CAVE LLP
One Atlantic Center
Fourteenth Floor
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
Telephone: (404) 572-6600
Facsimile: (404) 572-6999
/s/ Louis Nettles
Karl A. Folkens
(District Court ID No. 854)
Karl@folkenslaw.com
Louis Nettles
(District Court ID No. 2521)
Louis@folkenslaw.com
FOLKENS LAW FIRM, P.A.
3326 West Palmetto Street
Florence, South Carolina 29501
Telephone: (843) 665-0100
Facsimile: (843) 665-0500
Attorneys for the Executor
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CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2009, I electronically filed the foregoing document
with the Clerk of Court, which will automatically send notification of such filing to the following
attorneys of record:
R. Scott Joye Susan P. MacDonald
Joye, Nappier & Risher, LLC Nelson Mullins Riley & Scarborough LLP
3575 Highway 17 Business Beach First Center, 3rd Floor
Murrells Inlet, SC 29576 3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
Carl E. Pierce, II
Joseph C. Wilson, IV
Pierce, Herns, Sloan, & McLeod, LLC
P.O. Box 22437
Charleston, SC 29413
This 7th day of December, 2009.
/s/ Louis Nettles
Louis Nettles
(District Court ID No. 2521)
Louis@folkenslaw.com
6035502
17