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.
Sample motion for new trial in united states bankruptcy courtLegalDocsPro
This sample motion for new trial in United States Bankruptcy Court is filed under the provisions of Federal Rule of Civil Procedure 59(a) and Federal Rule of Bankruptcy Procedure 9023 on several grounds including that (1) the verdict is against the weight of the evidence; (2) newly discovered evidence; (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct. The sample on which this preview is based is 16 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail. The author is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Answer, Counterclaims & Third Party Claims - Non-Compete & Tortious InterferencePollard PLLC
This is one of our cases in Volusia County, Florida. Our clients - all of the defendants in the case - were sued for breach of a non-compete agreement, breach of fiduciary duty and tortious interference.
We responded with counterclaims for a declaratory judgment holding the non-compete agreement(s) unenforceable, third party claims for breach of fiduciary duty and breach of contract and a demand for indemnification.
This is a good example of our level of work. We have extensive experience litigating non-compete and tortious interference cases on both sides. We prosecute and defend these types of cases.
In every case, we have a process: First, we master the facts. Many lawyer and law firms get involved in a case and immediately focus on law. In our view, that is the wrong approach. All cases are driven by facts. Any legal strategy must be tailored to the specific facts of a specific case.
We do not take anything for granted. We do not default to the same tired boilerplate pleadings. In every new case, we fashion a specific strategy for that case.
If you have a non-compete or tortious interference case, just give us a call at 9543-32-2380. That's what we're here for.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
Sample California motion to compel further responses to special interrogatoriesLegalDocsPro
This sample California motion to compel further responses to special interrogatories is made pursuant to Code of Civil Procedure Section 2030.300 and is used when a party has served special interrogatories but the responses received are evasive or incomplete, or the objections are without merit or are too general. The sample could easily be modified to apply to form interrogatories as well. The sample on which this preview is based is 30 pages and includes a memorandum of points and authorities with citations to case law and statutory authority, a separate statement as required by Rule of Court 3.1345, a sample declaration and a proof of service by mail.
Sample opposition to motion to dismiss under rule 12(b)(6)LegalDocsPro
This sample opposition to a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure was used in an adversary proceeding but can be modified and used in any civil litigation in a Bankruptcy or District Court in ANY state within te jurisdiction of the Ninth Circuit Court of Appeals. This is a preview of the sample document sold on scribd.com by LegalDocsPro. The sample is 10 pages long and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.
Motion to dismiss under rule 12(b)(5) for insufficient service of processLegalDocsPro
Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. Rule 12(b)(5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court.
Motion for Sanctions filed against Wal-Mart for failure to preserve videotape in discrimination and harassment lawsuit in federal court in Atlanta, Georgia
Sample opposition to motion to vacate in California with an attorney affidavi...LegalDocsPro
This sample opposition to California motion to vacate judgment with an attorney affidavit of fault is used to oppose a motion made under the mandatory attorney affidavit of fault provisions of Code of Civil Procedure section 473(b) on several grounds including that the motion is untimely, does not include the required attorney affidavit of fault, the attorney is covering up for the client and other grounds. The sample on which this preview is based is 12 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration.
Sample motion to dismiss adversary complaint under rule12(b)(6)LegalDocsPro
This sample motion to dismiss an adversary complaint for fraud is made under Rule 12(b)(6) on the grounds that the complaint does not state a claim for relief, in the alternative the motion also requests a more definite statement. The sample contains a memorandum of points and authorities with citations to case law and statutory authority. This is a preview of the sample motion sold by LegalDocsPro.
Sample motion for new trial in united states bankruptcy courtLegalDocsPro
This sample motion for new trial in United States Bankruptcy Court is filed under the provisions of Federal Rule of Civil Procedure 59(a) and Federal Rule of Bankruptcy Procedure 9023 on several grounds including that (1) the verdict is against the weight of the evidence; (2) newly discovered evidence; (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct. The sample on which this preview is based is 16 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail. The author is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Answer, Counterclaims & Third Party Claims - Non-Compete & Tortious InterferencePollard PLLC
This is one of our cases in Volusia County, Florida. Our clients - all of the defendants in the case - were sued for breach of a non-compete agreement, breach of fiduciary duty and tortious interference.
We responded with counterclaims for a declaratory judgment holding the non-compete agreement(s) unenforceable, third party claims for breach of fiduciary duty and breach of contract and a demand for indemnification.
This is a good example of our level of work. We have extensive experience litigating non-compete and tortious interference cases on both sides. We prosecute and defend these types of cases.
In every case, we have a process: First, we master the facts. Many lawyer and law firms get involved in a case and immediately focus on law. In our view, that is the wrong approach. All cases are driven by facts. Any legal strategy must be tailored to the specific facts of a specific case.
We do not take anything for granted. We do not default to the same tired boilerplate pleadings. In every new case, we fashion a specific strategy for that case.
If you have a non-compete or tortious interference case, just give us a call at 9543-32-2380. That's what we're here for.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
Sample California motion to compel further responses to special interrogatoriesLegalDocsPro
This sample California motion to compel further responses to special interrogatories is made pursuant to Code of Civil Procedure Section 2030.300 and is used when a party has served special interrogatories but the responses received are evasive or incomplete, or the objections are without merit or are too general. The sample could easily be modified to apply to form interrogatories as well. The sample on which this preview is based is 30 pages and includes a memorandum of points and authorities with citations to case law and statutory authority, a separate statement as required by Rule of Court 3.1345, a sample declaration and a proof of service by mail.
Sample opposition to motion to dismiss under rule 12(b)(6)LegalDocsPro
This sample opposition to a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure was used in an adversary proceeding but can be modified and used in any civil litigation in a Bankruptcy or District Court in ANY state within te jurisdiction of the Ninth Circuit Court of Appeals. This is a preview of the sample document sold on scribd.com by LegalDocsPro. The sample is 10 pages long and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.
Motion to dismiss under rule 12(b)(5) for insufficient service of processLegalDocsPro
Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. Rule 12(b)(5) allows a defendant to move for dismissal due to insufficient service of process in civil litigation in United States District Court.
Motion for Sanctions filed against Wal-Mart for failure to preserve videotape in discrimination and harassment lawsuit in federal court in Atlanta, Georgia
Sample opposition to motion to vacate in California with an attorney affidavi...LegalDocsPro
This sample opposition to California motion to vacate judgment with an attorney affidavit of fault is used to oppose a motion made under the mandatory attorney affidavit of fault provisions of Code of Civil Procedure section 473(b) on several grounds including that the motion is untimely, does not include the required attorney affidavit of fault, the attorney is covering up for the client and other grounds. The sample on which this preview is based is 12 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration.
Sample motion to dismiss adversary complaint under rule12(b)(6)LegalDocsPro
This sample motion to dismiss an adversary complaint for fraud is made under Rule 12(b)(6) on the grounds that the complaint does not state a claim for relief, in the alternative the motion also requests a more definite statement. The sample contains a memorandum of points and authorities with citations to case law and statutory authority. This is a preview of the sample motion sold by LegalDocsPro.
Defendant's Motion to dismiss for violation of speedy trial rightsRich Bergeron
I prepared a very crisp and professional motion to dismiss just to watch Judge James D. O'Neill shoot it down with junk logic and misrepresentation of the law. He continues to show his blind loyalty to the bumbling prosecutors on my case. I had more than one lawyer tell me this was an excellent motion and hit on all the right points. This is where an appeal would expose how biased the judge really is.
Arbitration decision where the arbitrator deemed that the USPS did not have the right to institute a blanket policy requiring employees to prove they had a medical appointment before the appointment.
Similar to Brown Opposition To Plaintiff Motion To Amend Complaint (20)
Essentials of Automations: Optimizing FME Workflows with ParametersSafe Software
Are you looking to streamline your workflows and boost your projects’ efficiency? Do you find yourself searching for ways to add flexibility and control over your FME workflows? If so, you’re in the right place.
Join us for an insightful dive into the world of FME parameters, a critical element in optimizing workflow efficiency. This webinar marks the beginning of our three-part “Essentials of Automation” series. This first webinar is designed to equip you with the knowledge and skills to utilize parameters effectively: enhancing the flexibility, maintainability, and user control of your FME projects.
Here’s what you’ll gain:
- Essentials of FME Parameters: Understand the pivotal role of parameters, including Reader/Writer, Transformer, User, and FME Flow categories. Discover how they are the key to unlocking automation and optimization within your workflows.
- Practical Applications in FME Form: Delve into key user parameter types including choice, connections, and file URLs. Allow users to control how a workflow runs, making your workflows more reusable. Learn to import values and deliver the best user experience for your workflows while enhancing accuracy.
- Optimization Strategies in FME Flow: Explore the creation and strategic deployment of parameters in FME Flow, including the use of deployment and geometry parameters, to maximize workflow efficiency.
- Pro Tips for Success: Gain insights on parameterizing connections and leveraging new features like Conditional Visibility for clarity and simplicity.
We’ll wrap up with a glimpse into future webinars, followed by a Q&A session to address your specific questions surrounding this topic.
Don’t miss this opportunity to elevate your FME expertise and drive your projects to new heights of efficiency.
The Art of the Pitch: WordPress Relationships and SalesLaura Byrne
Clients don’t know what they don’t know. What web solutions are right for them? How does WordPress come into the picture? How do you make sure you understand scope and timeline? What do you do if sometime changes?
All these questions and more will be explored as we talk about matching clients’ needs with what your agency offers without pulling teeth or pulling your hair out. Practical tips, and strategies for successful relationship building that leads to closing the deal.
Builder.ai Founder Sachin Dev Duggal's Strategic Approach to Create an Innova...Ramesh Iyer
In today's fast-changing business world, Companies that adapt and embrace new ideas often need help to keep up with the competition. However, fostering a culture of innovation takes much work. It takes vision, leadership and willingness to take risks in the right proportion. Sachin Dev Duggal, co-founder of Builder.ai, has perfected the art of this balance, creating a company culture where creativity and growth are nurtured at each stage.
Dev Dives: Train smarter, not harder – active learning and UiPath LLMs for do...UiPathCommunity
💥 Speed, accuracy, and scaling – discover the superpowers of GenAI in action with UiPath Document Understanding and Communications Mining™:
See how to accelerate model training and optimize model performance with active learning
Learn about the latest enhancements to out-of-the-box document processing – with little to no training required
Get an exclusive demo of the new family of UiPath LLMs – GenAI models specialized for processing different types of documents and messages
This is a hands-on session specifically designed for automation developers and AI enthusiasts seeking to enhance their knowledge in leveraging the latest intelligent document processing capabilities offered by UiPath.
Speakers:
👨🏫 Andras Palfi, Senior Product Manager, UiPath
👩🏫 Lenka Dulovicova, Product Program Manager, UiPath
Epistemic Interaction - tuning interfaces to provide information for AI supportAlan Dix
Paper presented at SYNERGY workshop at AVI 2024, Genoa, Italy. 3rd June 2024
https://alandix.com/academic/papers/synergy2024-epistemic/
As machine learning integrates deeper into human-computer interactions, the concept of epistemic interaction emerges, aiming to refine these interactions to enhance system adaptability. This approach encourages minor, intentional adjustments in user behaviour to enrich the data available for system learning. This paper introduces epistemic interaction within the context of human-system communication, illustrating how deliberate interaction design can improve system understanding and adaptation. Through concrete examples, we demonstrate the potential of epistemic interaction to significantly advance human-computer interaction by leveraging intuitive human communication strategies to inform system design and functionality, offering a novel pathway for enriching user-system engagements.
Slack (or Teams) Automation for Bonterra Impact Management (fka Social Soluti...Jeffrey Haguewood
Sidekick Solutions uses Bonterra Impact Management (fka Social Solutions Apricot) and automation solutions to integrate data for business workflows.
We believe integration and automation are essential to user experience and the promise of efficient work through technology. Automation is the critical ingredient to realizing that full vision. We develop integration products and services for Bonterra Case Management software to support the deployment of automations for a variety of use cases.
This video focuses on the notifications, alerts, and approval requests using Slack for Bonterra Impact Management. The solutions covered in this webinar can also be deployed for Microsoft Teams.
Interested in deploying notification automations for Bonterra Impact Management? Contact us at sales@sidekicksolutionsllc.com to discuss next steps.
Smart TV Buyer Insights Survey 2024 by 91mobiles.pdf91mobiles
91mobiles recently conducted a Smart TV Buyer Insights Survey in which we asked over 3,000 respondents about the TV they own, aspects they look at on a new TV, and their TV buying preferences.
GraphRAG is All You need? LLM & Knowledge GraphGuy Korland
Guy Korland, CEO and Co-founder of FalkorDB, will review two articles on the integration of language models with knowledge graphs.
1. Unifying Large Language Models and Knowledge Graphs: A Roadmap.
https://arxiv.org/abs/2306.08302
2. Microsoft Research's GraphRAG paper and a review paper on various uses of knowledge graphs:
https://www.microsoft.com/en-us/research/blog/graphrag-unlocking-llm-discovery-on-narrative-private-data/
Accelerate your Kubernetes clusters with Varnish CachingThijs Feryn
A presentation about the usage and availability of Varnish on Kubernetes. This talk explores the capabilities of Varnish caching and shows how to use the Varnish Helm chart to deploy it to Kubernetes.
This presentation was delivered at K8SUG Singapore. See https://feryn.eu/presentations/accelerate-your-kubernetes-clusters-with-varnish-caching-k8sug-singapore-28-2024 for more details.
Connector Corner: Automate dynamic content and events by pushing a buttonDianaGray10
Here is something new! In our next Connector Corner webinar, we will demonstrate how you can use a single workflow to:
Create a campaign using Mailchimp with merge tags/fields
Send an interactive Slack channel message (using buttons)
Have the message received by managers and peers along with a test email for review
But there’s more:
In a second workflow supporting the same use case, you’ll see:
Your campaign sent to target colleagues for approval
If the “Approve” button is clicked, a Jira/Zendesk ticket is created for the marketing design team
But—if the “Reject” button is pushed, colleagues will be alerted via Slack message
Join us to learn more about this new, human-in-the-loop capability, brought to you by Integration Service connectors.
And...
Speakers:
Akshay Agnihotri, Product Manager
Charlie Greenberg, Host
Encryption in Microsoft 365 - ExpertsLive Netherlands 2024Albert Hoitingh
In this session I delve into the encryption technology used in Microsoft 365 and Microsoft Purview. Including the concepts of Customer Key and Double Key Encryption.
From Siloed Products to Connected Ecosystem: Building a Sustainable and Scala...
Brown Opposition To Plaintiff Motion To Amend Complaint
1. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
HOWARD K. STERN, as Executor of the ) C.A. No. 4:08-CV-2753-TLW
Estate of Vickie Lynn Marshall, a/k/a Vickie )
Lynn Smith, a/k/a Vickie Lynn Hogan, a/k/a )
Anna Nicole Smith, )
)
Plaintiff, )
) NON-PARTIES SUSAN M. BROWN AND
vs. ) LAW OFFICES OF SUSAN M. BROWN’S
) MEMORANDUM IN OPPOSITION TO
STANCIL SHELLEY, a/k/a Ford Shelley, ) PLAINTIFF’S MOTION TO AMEND
G. BEN THOMPSON, and John or Jane )
Doe 1-12 whose true names are unknown, )
)
Defendants. )
)
This matter is before the Court on the motion of Plaintiff Howard K. Stern to amend his
complaint to join additional Defendants Gaither Bengene Thompson, II, Melanie Thompson, Gina
Thompson Shelley, Susan M. Brown, and The Law Offices of Susan M. Brown, P.C. Susan M.
Brown and The Law Offices of Susan M. Brown, P.C. (hereinafter collectively referred to as
“Brown”) hereby opposes the motion to amend as it relates to Brown.
FACTS
The underlying facts in this case are set out in Brown’s Memorandum in Opposition to
Plaintiff Stern’s Motion for Sanctions and are hereby adopted in full.
LEGAL ARGUMENT
A motion to amend a complaint may be denied when the amendment would be prejudicial to
the opposing party, where there has been bad faith on the part of the moving party, or when the
amendment would be futile. Matrix Capital Management Fund, LP v. BearingPoint, Inc., 576 F.3d
172, 193 (4th Cir. 2009); Alonso v. McAllister Towing of Charleston, Inc., 595 F.Supp.2d 645, 648
2. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 2 of 12
(D.S.C. 2009).
I. BROWN IS PREJUDICED BY THE TIMING OF THE AMENDMENT
Whether an amendment is prejudicial will often be determined by the nature of the
amendment and its timing. Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006). A common
example of a prejudicial amendment is one that “raises a new legal theory that would require the
gathering and analysis of facts not already considered by the [defendant, and] is offered shortly
before or during trial.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.1986). An
amendment is not prejudicial, by contrast, if it merely adds an additional theory of recovery to the
facts already pled and is offered before any discovery has occurred. Davis v. Piper Aircraft Corp.,
615 F.2d 606, 613 (4th Cir.1980) (“Because defendant was from the outset made fully aware of the
events giving rise to the action, an allowance of the amendment could not in any way prejudice the
preparation of the defendant's case.”).
This matter has been pending since August of 2008. Since that time, the Scheduling Order
has been amended five times. Deadlines for naming experts have long since passed. Discovery is
currently due to be over January 29, 2010. Numerous depositions have been taken, including
depositions of the current Defendants and most of the proposed new Defendants. These depositions
were taken without any knowledge that Brown would become a potential Defendant until counsel
for Plaintiff suggested as much during Brown’s deposition. In other words, the majority of
Plaintiff’s discovery has already taken place without Brown as a party, and the matter as it currently
stands is essentially ready for trial. Clearly, Brown would be prejudiced by her late addition, both
due to the fact that she has not had an opportunity to participate in discovery as a party and also
because of the little time that is left for discovery.
Of course, there was no reason for the late date of this effort to add Brown as a party.
2
3. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 3 of 12
Plaintiff’s counsel has been aware of Brown’s actions that form the basis for the Amended
Complaint for nearly a year. In his Amended Complaint, Plaintiff candidly admits that Brown
informed Plaintiff that Brown had the two subject hard drives on November 12, 2007. Proposed
Amended Complaint, Paragraph 174. This was confirmed in a letter from Plaintiff’s counsel on
November 29, 2007. 11/29/07 Wade Letter, Exhibit No. 1. Thus, Plaintiff was aware that Brown
had possession of the subject hard drives for nearly two years before attempting to add Brown to
this lawsuit.
Plaintiff has also claimed that Brown wrongfully retained documents taken from Horizons.
Amended Complaint, Paragraph 201. In fact, Ms. Brown disclosed to Plaintiff’s counsel in
September of 2008 all the documents she and Defendant Shelley had when Defendant Shelley was
subpoenaed in other litigation. 9/18/08 Wade Letter, Exhibit No. 2. Plaintiff’s counsel identified
the documents she felt might have originated from Horizons at that time. Again, there is no
explanation as to why Plaintiff waited a year to try to add Brown as a Defendant.
Similarly, when Brown provided Plaintiff with the hard drives on January 21, 2009 pursuant
to this Court’s order, the hard drives had stickers on them that indicated that BKD, LLP, had
examined the hard drives. Picture of Hard Drives, Exhibit No. 3. On February 13, 2009, Plaintiff
subpoenaed BKD regarding its examination of the hard drives. BKD Subpoena, Exhibit No. 4.
Thus, since discovering that the hard drives had been provided to BKD, Plaintiff waited ten months
before moving to amend his complaint.
In summary, Plaintiff waited nearly a year after discovering all relevant facts upon which his
claims against Brown are based before filing this effort to add Brown to the lawsuit. No
explanation for this delay has been proffered.
Of course, delay alone does not amount to prejudice. What does amount to prejudice is the
3
4. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 4 of 12
fact that the majority of discovery, including all depositions and the deposition of Brown herself,
was conducted without Brown being a party. Thus, Brown did not have a chance to participate in
the discovery or to question the witnesses. Likewise, Brown is severely prejudiced by the
outstanding Fifth Amended Scheduling Order. Under the Order, the time for naming experts has
passed, and discovery is scheduled to end January 29, 2010. This will leave little or no time for
Brown to conduct what will surely be contentious discovery. 1
Moreover, the issues for discovery are broad. With regards to liability, Brown will need to
conduct discovery into the origin and status of the photographs and videos in question. As of now,
it would appear that the overwhelming majority of this material either did not belong to the Estate or
was not removed from Horizons. Similarly, Brown will need to conduct extensive discovery into
the completely baseless allegations that the material at one point held by Brown and allegedly
belonging to the Estate was distributed to media outlets and the public in general. As it currently
stands, there is not one bit of evidence contradicting the statements of both Brown and Neil
McCabe, the one person that Brown sent the hard drives to, that they did not provide the material to
any media outlets or otherwise disclose it to the public.
With regards to damages, Brown will need to conduct discovery into the Plaintiff Estate’s
handling of the pictures and videos in question to determine their true value. Plaintiff has
apparently named an expert on the value of this material and any testimony he provides will have to
be examined. Of course, none of this discovery can take place until counsel for Brown is provided
with a copy of the material that Brown allegedly held and transferred. It would literally be
impossible to defend this matter without access to the material that forms the basis of all of
1
At this point, Brown does not even have possession of the materials she is accused of distributing. If Brown is
added as a party, the first order of business will have to be an amendment to the Preliminary Injunction allowing
Brown and her counsel to maintain and review a copy of the material she is accused of wrongfully procuring and
distributing.
4
5. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 5 of 12
Plaintiff’s claim, both from a liability and from a damages standpoint. Based on the unreasonable
demands of Plaintiff’s counsel to date, it does not appear that Plaintiff is willing to conduct this
litigation on a level playing field where Brown can see the material she is accused of unlawfully
retaining and disbursing.
In summary, Plaintiff’s effort to bring Brown into this lawsuit in the eleventh hour, after
discovery has been nearly completed, after experts have been named and expert deadlines passed,
after all major depositions have been taken, is far too late, especially in light of the fact that Plaintiff
has been aware of the underlying facts for nearly a year and longer. Brown would therefore ask the
Court to deny Plaintiff’s motion to add her as a Defendant on the grounds of prejudice.
II. PLAINTIFF’S EFFORT TO ADD BROWN AS A DEFENDANT IS FUTILE.
A motion to amend can be denied on the grounds of futility if the amendment is “clearly
insufficient or frivolous on its face.” Oroweat Foods Co., 785 F.2d at 510-511. Courts can examine
the potential futility of an amendment and deny it on the grounds that it is not a legally cognizable
claim. See, e.g., Curry v. South Carolina, 518 F.Supp.2d 661, 668-69 (D.S.C. 2007).
A. PLAINTIFF CANNOT RELY UPON CALIFORNIA SUBSTANTIVE OR
PROCEDURAL STATUTES BECAUSE THE ALLEGED CLAIMS AROSE
IN SOUTH CAROLINA.
Plaintiff has apparently assumed that California law will apply to the actions of Brown.
Amended Complaint, Paragraph 28. In fact, South Carolina law applies under the principal of lex
loci delicti in that the alleged acts were committed here in South Carolina.
Because this matter is in federal court on diversity grounds, the choice of law rules of the
forum state, South Carolina, apply. Klaxon v. Stentor, 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85
L.Ed. 1477 (1941). “Under traditional South Carolina choice of law principles, the substantive law
governing a tort action is determined by the lex loci delicti, the law of the state in which the injury
5
6. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 6 of 12
occurred.” Boone v. Boone, 345 S.C. 8, 546 S.E.2d 191, 193 (2001); Federal Ins. Co. v. Smith, 63
Fed.Appx. 630, 632 (4th Cir. 2003) (apply lex loci delicti to conversion claims). The fact that the
Plaintiff estate is located in California does not mean that California law should apply to property
allegedly converted in South Carolina. Clarke v. Clarke, 178 U.S. 186, 20 S.Ct. 873 (1900).
Plaintiff has not pled causes of action under South Carolina law. Plaintiff’s Second, Third,
and Fifth causes of action are based on California statutes. Under South Carolina’s choice of law
principals, California law simply is not applicable to an alleged conversion that occurred in South
Carolina. Indeed, Plaintiff’s Second Cause of Action is based on California Probate Code § 850, et
seq., which simply sets up a procedure for making a specific performance type claim in the
California Probate Court. In re Bailey's Estate 42 Cal.App.2d 509, 109 P.2d 356, 357 (1941).
Because the statute creates a procedural rule, as opposed to a substantive right, it is clearly
inappropriate to rely upon the statute in a South Carolina Court. McDaniel v. McDaniel, 243
S.C. 286, 289, 133 S.E.2d 809, 811 (1963) (“Procedural matters are to be determined in
accordance with the law of South Carolina, the lex fori.”).
Similarly, California Civil Code § 3344.1 is a procedural remedy that cannot be imported
into the South Carolina court system. In fact, the statute by its very language limits its rights to
those that occur solely in California:
(n) This section shall apply to the adjudication of liability and the
imposition of any damages or other remedies in cases in which the liability,
damages, and other remedies arise from acts occurring directly in this state.
California Civil Code § 3344.1(n).
B. PLAINTIFF HAS NOT PROPERLY PLED ANY CAUSE OF ACTION
AGAINST BROWN.
Plaintiff’s First Cause of Action is for conversion, but Plaintiff has apparently pled a
California version of the tort. Plaintiff has alleged that Brown “assumed and exercised dominion
6
7. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 7 of 12
and control over the following Estate items in a manner inconsistent with the Estate’s ownership or
right of control of same.” Amended Complaint, Paragraphs 200, 201, and 202. Under South
Carolina law, to recover in an action for conversion the Plaintiff must prove: (1) an interest by the
Plaintiff in the thing converted; (2) the defendants converted the property to their own use; and
(3) the use was without the plaintiffs' permission. Crane v. Citicorp. Nat'l Servs., Inc., 313 S.C.
70, 437 S.E.2d 50 (1993); Oxford Finance Companies v. Burgess, 303 S.C. 534, 402 S.E.2d 480
(1991). Since Plaintiff has not pled that Brown converted the property to her own use, the
allegations are inadequate and futile under South Carolina law.
Plaintiff’s Third Cause of Action under California Civil Code § 3344.1, even if it could
be brought in South Carolina, is not applicable to any actions undertaken by Brown. The statute
bars the use of “a deceased personality's name, voice, signature, photograph, or likeness, in any
manner, on or in products, merchandise, or goods, or for purposes of advertising or selling,
or soliciting purchases of, products, merchandise, goods, or services . . .” California Civil
Code § 3344.1(a)(1) (emphasis added). Later the statute repeats:
For purposes of this section, acts giving rise to liability shall be limited to
the use, on or in products, merchandise, goods, or services, or the advertising or
selling, or soliciting purchases of, products, merchandise, goods, or services
prohibited by this section.
California Civil Code § 3344.1(e). Plaintiff has neither alleged nor provided any evidence that
Brown used Smith’s likeness for the purpose of advertising or selling goods or services.
Plaintiff’s Fourth Cause of Action is for unjust enrichment. Under South Carolina law,
unjust enrichment is an equitable doctrine which permits the recovery of that amount the
defendant has been unjustly enriched at the expense of the plaintiff. Barrett v. Miller, 283 S.C.
262, 321 S.E.2d 198, 199 (Ct.App.1984). Since Plaintiff has failed to allege how Brown could
possibly have been unjustly enriched by her brief retention of copies of her own client’s hard
7
8. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 8 of 12
drives, this claim also fails.
Plaintiff’s Sixth Cause of Action is based on 18 U.S.C. § 1030(a)(5), which creates criminal
penalties for whosoever:
(A) knowingly causes the transmission of a program, information, code, or
command, and as a result of such conduct, intentionally causes damage without
authorization, to a protected computer;
(B) intentionally accesses a protected computer without authorization, and as
a result of such conduct, recklessly causes damage; or
(C) intentionally accesses a protected computer without authorization, and as
a result of such conduct, causes damage and loss.
18 U.S.C. § 1030(a)(5).
Again, at most, Brown accepted two hard drives from her own client, the hard drives were
not removed from Horizons, and Brown did nothing but hold the hard drives and forward them to
another attorney at her client’s request. Brown never “accessed” a “protected computer” without
authorization. Indeed, the purpose of these statutes is to criminalize “hacking” into computers, not
holding on to your own client’s hard drives for safekeeping. YourNetDating, Inc. v. Mitchell, 88
F.Supp.2d 870 (N.D.Ill. 2000). See also International Association of Machinists and Aerospace
Workers v. Werner-Masuda, 390 F.Supp.2d 479, 495-96 (D.Md. 2005) (similar computer
protection act directed toward “hacking”).
Finally, Plaintiff’s Seventh Cause of Action is for conspiracy. This claim is based on the
prior claims, in particular an alleged violation of the California Probate Code. Amended
Complaint, Paragraph 257. It does not set out the elements of civil conspiracy under South
Carolina law. As such, this claim, like all the others, is futile with regards to Brown.
Accordingly, the motion to amend to add Brown as a Defendant should be denied.
8
9. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 9 of 12
C. BROWN IS IMMUNE FROM CLAIMS BY PLAINTIFF BECAUSE BROWN
WAS ACTING AT ALL TIMES AS AN ATTORNEY FOR AN OPPOSING
PARTY.
All actions attributed to Brown in the Amended Complaint were undertaken in her roll as
attorney for Defendants Thompson and Shelley and at their bidding. All she did was hold some
material for Shelley and then provide that material to other attorneys who Shelley was
considering retaining for a possible suit against Plaintiff. All of these acts were undertaken at the
direction of her clients, Shelley and Thompson. In the context of Brown’s involvement with the
materials, she was simply providing evidence to a potential co-counsel. She took steps to insure
that the other attorney would keep the material in confidence, and there is no evidence that this
confidence was breached or that the material was provided to the public or to the media.
Plaintiff, an opposing party, seeks to hold Brown liable for following the instructions of
her own clients and providing evidence of a potential tort to another attorney for analysis. The
law does not allow for this.
Brown, as the attorney for an opposing party, is immune from liability to third persons
arising from her performance of her professional activities and owes Plaintiff no duty. South
Carolina has firmly declared that a party cannot sue an opposing party’s attorney if the attorney
acts within the scope of his representation. Garr v. North Myrtle Beach Realty Co., 287 S.C.
525, 339 S.E.2d 887 (Ct.App. 1986). An attorney is immune from liability to third persons
arising from performance of his professional activities as an attorney on behalf of and with
knowledge of his client. Id. at 889.
Even if an attorney lacks probable cause to act, he is not liable for doing so if he acts
primarily for the purpose of aiding his client in obtaining a proper adjudication of the client’s
claim. Id., citing Restatement (Second) of Torts, Section 674 comment d (1975).
9
10. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 10 of 12
The reasoning behind such a rule is strongly applicable to the current matter:
Attorneys must be free to act and advise their clients without constant fear of
harassment from lawsuits. Peck v. Chouteau, 91 Mo. 138, 2 S.W. 577 (1887).
An attorney has an ethical obligation zealously to pursue any lawful claim of his
client. Rule 32, Canon 7, Rules of Practice in the Supreme Court of South
Carolina. If he does not properly represent and support his client’s position, an
attorney is subject to a suit for malpractice. To hold that an attorney who files
pleadings in support of his client’s position has acted overzealously, and is
therefore liable to the other party in damages for malicious prosecution, would
create a conflict of interest with the attorney’s obligation to properly represent and
support his client. Junot v. Leek, 372 So.2d 707 (La.App. 1979); W.D.G., Inc. v.
Mutual Mfg. & Supply Co., [5 Ohio Op.3d 397 (1976)]. Such suits could
conceivably prohibit attorneys from pursuing and developing new causes of
action, and could hinder development of new legal theories. Central Florida
Machinery Co. v. Williams, 424 So.2d 201 (Fla.App. 1983).
Id. at 889-90.
Plaintiff’s claims against Brown are clearly barred by the Gaar opinion. The claims arise
out of actions taken by Brown during the performance of her professional duties in representing
her client. The South Carolina Supreme Court has made it clear that attorneys should not have to
worry about claims made by adversaries while engaged in the vigorous representation of their
clients. As such, the proposed Amended Complaint against Brown is futile and should not be
granted.
D. PLAINTIFF CANNOT BASE A LAWSUIT ON AN ALLEGED
VIOLATION OF A COURT ORDER FOR WHICH HE IS ALREADY
SEEKING SANCTIONS.
Most of Plaintiff’s allegations against Brown in the Amended Complaint are based on
Brown’s alleged violation of the Court’s Consent Order Entering Preliminary Injunction. This is
not an appropriate basis for a lawsuit for two reasons.
First, Plaintiff has already chosen to pursue relief for this alleged violation by way of a
motion for sanctions contemporaneously filed with the motion to amend the complaint. In other
words, Plaintiff seeks two bites of the apple – both a motion for sanctions and a legal claim – for
10
11. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 11 of 12
the same action. Assuming the motion for sanctions is denied, it will have a collateral estoppel
effect on the claims in the lawsuit. Collateral estoppel denies a plaintiff the right to re-litigate in
a second action issues which were adequately and necessarily litigated and determined in an
earlier proceeding. Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455, 459 (Ct. App. 1997).
Second, a lawsuit is not an appropriate vehicle to seek sanctions for the alleged violation
of a Court order. There is no cause of action for “civil contempt.” Sanctions for violations of
Rule 11 of the Federal Rules of Civil Procedure include “nonmonetary directives; an order to pay
a penalty into court; or . . . an order directing payment to the movant of part or all of the
reasonable attorney’s fees and other expenses directly resulting from the violation.” Rule
11(c)(4), FRCP. There is nothing in the Rules creating a cause of action for the alleged violation
of a Court order.
CONCLUSION
Based on the foregoing, Susan M. Brown and The Offices of Susan M. Brown, PC, would
hereby request that the Court deny Plaintiff’s Motion to Amend his Complaint to add Brown as a
Defendant. This proposed late addition is highly prejudicial to Brown and is a futile effort in any
case.
In the alternative, Brown would ask that, if she is added as a Defendant, that the Scheduling
Order be amended to provide Brown adequate time to conduct discovery and to prepare and name
any experts Brown deems necessary.
11
12. 4:08-cv-02753-TLW -TER Date Filed 11/24/09 Entry Number 87 Page 12 of 12
RESPECTFULLY SUBMITTED,
/S/ JOSEPH C. WILSON, IV
Carl E. Pierce, II (Fed. ID#3062)
Joseph C. Wilson, IV (Fed. ID#5886)
Pierce, Herns, Sloan, & McLeod, LLC
P.O. Box 22437
Charleston, SC 29413
(843) 722-7733
(843) 722-7732
joewilson@phsm.net
ATTORNEYS FOR SUSAN M. BROWN
AND THE LAW OFFICES OF SUSAN M.
BROWN, PC
November 24, 2009
Charleston, South Carolina
12