Brown reply memo support motion to dismiss

4:08-cv-02753-JMC -TER Date Filed 08/30/10 Entry Number 144 Page 1 of 9

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-JMC-TER
Estate of Vickie Lynn Marshall, a/k/a Vickie )
Lynn Smith, a/k/a Vickie Lynn Hogan, a/k/a )
Anna Nicole Smith, )
)
Plaintiff, )
)
vs. ) BROWN DEFENDANTS’ REPLY
) MEMORANDUM IN SUPPORT OF
STANCIL SHELLEY, a/k/a Ford Shelley, ) MOTION TO DISMISS
G. BEN THOMPSON, GAITHER )
THOMPSON, II, MELANIE THOMPSON, )
GINA THOMPSON SHELLEY, SUSAN )
M. BROWN, and THE LAW OFFICES OF )
SUSAN M. BROWN, P.C., )
)
Defendants. )
)

This matter is before the Court on the motion of Defendants Susan M. Brown and The Law

Office of Susan M. Brown (“Brown Defendants”) to partially dismiss Plaintiff Howard K. Stern’s

Amended Complaint. This Reply Memorandum is offered in response to Plaintiff’s Memorandum

in Opposition to Motion to Dismiss and for Sanctions.

Plaintiff has once again shown his true colors in responding to a perfectly reasonable and

measured motion to dismiss by asking for sanctions against yet another attorney that dares to

question any act Plaintiff has taken. Plaintiff accuses the Brown Defendants and their counsel of

acting in a frivolous manner. Such accusations would be surprising if not for the legal contortions

Plaintiff has already incorporated into the lawsuit, such as:

1) suing Defendants for cooperating with The O’Quinn Law Firm, which was engaged

in suits against Plaintiff Howard Stern personally, as opposed to the Estate, the party Plaintiff Stern

is supposed to be representing in this matter, Amended Complaint, Paragraphs 97-100;


2) suing Defendants for cooperating with California authorities now prosecuting

Plaintiff Howard K. Stern for conspiring to unlawfully provide excessive drugs to Deceased

Plaintiff Anna Nicole Smith, Amended Complaint, Paragraphs 141-48;

3) suing the Brown Defendants for commercially misappropriating Decedent Anna

Nicole Smith’s publicity rights by 1) mailing hard drives to The O’Quinn Law Firm but only after

entering a Confidentiality Agreement that they will not be used, Amended Complaint, Paragraph

119, and 2) failing to produce hard drives to the Plaintiff in alleged violation of a prior discovery

order, Amended Complaint, Paragraphs 168-89;

4) suing the Brown Defendants under California Civil Code § 3344.1 even though it is

explicitly limited to actions that took place in California;

5) trying to import California’s Probate Code into a civil matter pending in the South

Carolina U.S. District Court; and

6) seeking in this suit the same damages for the same conduct that is already the subject

of a currently pending motion for sanctions, i.e. seeking two bites of the apple.

The Brown Defendants would urge the Court to address the substance of the motion and not

the frivolous attacks that are becoming Plaintiff’s bread and butter in this case and the numerous

other civil and criminal cases in which Plaintiff is embroiled.

I. THE MOTION TO DISMISS IS NOT PRECLUDED BY THE COURT’S PRIOR
RULING ON THE MOTION TO AMEND.

Plaintiff first argues that the Brown Defendants cannot raise any issues previously raised in

their opposition to Plaintiff’s Motion to Amend Complaint. Plaintiff’s argument ignores the fact

that the Court’s Order Granting the Motion to Amend did not rely on a motion to dismiss standard

and left open the door for a subsequent motion to dismiss.

In its Order, the Court cited and quoted Rambus, Inc. v. Infineon Technologies, AG, 304

2


F.Supp.2d 812, 819 (E.D.Va. 2004):

Courts generally favor the “resolution of cases on their merits.” Davis v. Piper
Aircraft Corp., 615 F.2d 606, 613 (4th Cir.1980). Thus, the substantive merits of
a proposed claim are typically best left for later resolution, e.g., under motions
to dismiss or for summary judgment under Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P.
56, respectively, or for resolution at trial. Id.

(emphasis added). See also Cherochak v. Unum Life Ins. Co. of America, 586 F.Supp.2d 522, 526

(D.S.C. 2008) (same); Massie v. Board of Trustees, Haywood Community College, 357 F.Supp.2d

878884 (W.D.N.C. 2005) (same). Thus, this Court, like many before it, has recognized that a

motion to amend can be granted, and the Court can then entertain a motion to dismiss.

Plaintiff has not cited any case finding that the granting of a motion to amend somehow

precludes a motion to dismiss. Given the paucity of support, Plaintiff’s contention that Defendant’s

motion to dismiss is somehow precluded and sanctionable is all bluster and no substance.

Moreover, the Court made clear that its ruling allowing the Amended Complaint was based

on the lenient standard cited in Johnson v. Oroweat Foods Co., 785 F.2d 503, 510-11 (4th Cir.

1986), which states that an “amendment must be clearly insufficient or frivolous on its face” for a

denial of a motion to amend. Order Granting Motion to Amend, Pages 5, 6, 7. Put in the simplest

terms possible, this is not the same standard adopted by the Supreme Court for motions to dismiss.

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (To avoid dismissal under Rule

12(b)(6), a complaint must include “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.”).

Finally, the Court in the Order Granting the Motion to Amend frankly acknowledged that

the California statutory claims, which are the subject of the motion to dismiss, were not “thoroughly

addressed” and were already pending in the original Complaint. Order Granting Motion to Amend,

Pages 6, 7. Even Plaintiff had to acknowledge that the Order Granting Motion to Amend did not

3


address all of the Brown Defendants’ arguments. Plaintiff’s Brief, Pages 7-8. Again, this language

would strongly indicate that the Court is not averse to considering whether Plaintiff can rely on

California procedural law in a South Carolina District Court via a motion to dismiss. Instead of

devising new motions for sanctions, Plaintiff’s time would be better spent actually reading the

orders issued by the Court.

II. PLAINTIFF CONTINUES TO CONFUSE SUBSTANTIVE LAW WITH
PROCEDURAL LAW AND THE DIFFERENT CHOICE OF LAW PRINCIPLES
THAT APPLY TO SUBSTANTIVE VS. PROCEDURAL LAW.

Plaintiff’s memorandum also fails to acknowledge and address a very simple concept in

conflicts of law. Under South Carolina choice of law principles, much like any other jurisdiction,

the substantive law is determined by the law of the state in which the injury occurred (lex loci

delicti) and procedural matters are determined by the law of the forum (lex fori). Thornton v.

Cessna Aircraft Co., 886 F.2d 85, 87 (4th Cir. 1989). The motion to dismiss does not attempt to

address the issue of what substantive law applies to this case, as it is clear that some discovery

will be required to determine the lex loci delicti. 1 Accordingly, Plaintiff’s repeated arguments

concerning the appropriate substantive law, see Plaintiff’s Memorandum, Pages 4-5, are neither

relevant nor a part of this motion.

Instead, the Brown Defendants’ motion to dismiss is focused on the fact that Plaintiff is

relying on out-of-state procedural law, something that is clearly not allowed under any choice

of law rules. Thus, the only issue is whether California Civil Code § 3344.1 and California

Probate Code § 850 are procedural in nature and whether the Code’s provisions limiting the

reach of § 3344.1 will be ignored or followed.

Plaintiff devotes one sentence in one footnote to the issue of whether § 3344.1 and

1
The Brown Defendants are not conceding, as suggested in Plaintiff’s footnote 3, that California substantive law is
applicable to this case. Plaintiff’s suggestion that a party could implicitly concede something in a motion to dismiss
is both absurd and frivolous.

4


California Probate Code § 850 are procedural or not:

“Moreover, because both California Civil Code § 3344.1 and California Probate
Code § 850 provide rights to certain damages, South Carolina courts consider that
aspect of the statutes to be substantive law rather than procedural law. Lister v.
NationsBank of Delaware, N.A., 494 S.E.2d 449, 460 (S.C. Ct.App. 1997).” 2

Plaintiff’s Brief, Page 5 n. 3.

Plaintiff makes no attempt to explain this cryptic statement. The citation certainly sheds

no light on the statement. Although Lister does include a discussion on choice of law, the only

reference made to the dichotomy between substantive law and procedural rules fully supports the

Brown Defendants’ argument: the law of the place of injury governs with respect to the “right of

action,” and the law of the forum governs matters pertaining to remedy and procedure. Id. at

454-55.

Again, even the most cursory reading of the California statutes and the cases interpreting

them shows that the statutes are procedural or remedial laws, not substantive laws. Not to state the

obvious, but California Probate Code § 850, et seq. is part of California’s Probate Code. It 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) (“The proceeding therein

provided for is similar to and, in practical effect, is an action for specific performance.”). Plaintiff

has not cited any instance where one state’s trial court has relied on procedural rules from another

state’s probate code to fashion a cause of action because no such cases exist. Probate codes by their

nature are for the probate of estates in that state, not to create causes of action in a different state.

Similarly, California Civil Code § 3344.1 is plainly a damage statute that is part of the

“Relief” provisions of California’s Civil Code that are remedial in nature. California Civil Code §

3274. It does nothing but provide a remedy for a misappropriation of the right of publicity.

2
The page in Lister cited by Plaintiff is dedicated to punitive damages and has no apparent applicability to choice of
law.

5


Of the dozens of cases citing California Civil Code § 3344.1, Plaintiff located precisely one

case outside of California, Hofheinz v. AMC Productions, Inc., 2003 WL 25293919 (E.D.N.Y.

2003), and that case was dismissed on other grounds without the District Court ever addressing

whether it was appropriate to rely on a California procedural statute in a case pending in the New

York District Court.3

Finally, if there is any doubt as to the applicability of California Civil Code § 3344.1 to a

South Carolina action, it is utterly extinguished by its own provision limiting it to acts that occurred

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). Despite repeated opportunities, Plaintiff has not even

attempted to address this provision. All of Plaintiff’s allegations that give rise to the claims

against Brown took place in South Carolina and Georgia. None took place in California. Thus,

by the very terms of § 3344.1, it is not applicable to the Brown Defendants’ conduct.

III. ACTIONS FOR MISAPPROPRIATION OF PUBLICITY RIGHTS ONLY APPLIES
TO THE USE OF DECEDENT’S IMAGE FOR ITS INTRINSIC ECONOMIC
VALUE.

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 allegedly undertaken by the Brown

Defendants because she was not attempting to exploit Smith’s likeness for her own benefit. The

California statute bars the use of “a deceased personality's . . . likeness . . . for purposes of . . .

soliciting purchases of . . . services . . .” California Civil Code § 3344.1(a)(1). As stated by the

3
The other cases cited in Plaintiff’s footnote 2 address the application of substantive law, not procedural law. Since
the California statute is procedural in nature, those cases provide no guidance. Further, Shaw Family Archives Ltd.
V. CMG Worldwide, Inc., 2008 WL 4127830 (S.D.N.Y. 2008), referenced Indiana law because the case was
originally filed in Indiana and subsequently transferred to New York. See Shaw Family Archives, Ltd. v. CMG
Worldwide, Inc., 434 F.Supp.2d 203 (S.D.N.Y. 2006).

6


California Supreme Court:

[T]he right of publicity is essentially an economic right. What the right of
publicity holder possesses is not a right of censorship, but a right to prevent others
from misappropriating the economic value generated by the celebrity's fame
through the merchandising of the ‘name, voice, signature, photograph, or likeness'
of the celebrity.

Winter v. DC Comics, 30 Cal.4th 881, 69 P.3d 473, 478, 134 Cal.Rptr.2d 634, 640 (2003).

Plaintiff alleges that the Brown Defendants sent videotapes to The O’Quinn Law Firm to

convince that firm to represent Co-Defendant Ford Shelley. Amended Complaint, Paragraph

121. Plaintiff complains that The O’Quinn Law Firm was in “adversarial” lawsuits against

Plaintiff Howard Stern without explaining how such suits concern Ms. Smith’s Estate, the real

party in interest in this matter. Amended Complaint, Paragraphs 97-100.

Such actions simply do not equate to using Smith’s likeness to solicit persons to purchase

Brown’s services, which is what the statute bars. The statute has no applicability to Brown

privately providing the subject materials to other law firms with the stated intent of keeping

those materials private. Nothing the in Amended Complaint alleges that Brown used Smith’s

likeness to solicit purchases of Brown’s services. Therefore, all claims for misappropriation of

publicity rights against the Brown Defendants should be dismissed.

IV. PLAINTIFF CANNOT BASE HIS CLAIMS ON ACTIONS THE BROWN
DEFENDANTS TOOK ALLEGEDLY IN VIOLATION OF DISCOVERY
ORDERS.

Finally, the Brown Defendants ask for dismissal of any claims based on actions Brown

took during discovery on collateral estoppel grounds and on the grounds that alleged Rule 11

violations are more appropriately dealt with under Rule 11 rather than civil complaints. Plaintiff

does not dispute the fact that he cannot prosecute both a Rule 11 violation and a civil complaint

based on the very same alleged discovery violations. Rather, Plaintiff simply attempts to

7


downplay the portions of the Amended Complaint based on the Brown Defendants’ production

in discovery of the subject videotapes, pictures, and other material. This does not change the fact

that Plaintiff’s Amended Complaint is based, in part, on the same allegations as Plaintiff’s

Motion for Sanctions.

With regards to the Brown Defendants, the Amended Complaint focuses on two acts: 1)

providing hard drives to The O’Quinn Law Firm, and 2) allegedly failing to turn over all

materials as previously ordered by the Georgia District Court. The Brown Defendants are

simply pointing out that this civil complaint should solely address the issues regarding The

O’Quinn Law Firm, not the issues related to discovery that are the subject of a separate motion.

Finally, Plaintiff has simply ignored the Brown Defendants’ last argument that a lawsuit

is not an appropriate vehicle to seek sanctions for the alleged violation of a Court order.

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. Nothing in the Rules of Procedure or federal law

creates 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 dismiss the Second and Third Causes of Action against these

Defendants in that said actions are based on inapplicable California procedural law. Plaintiff also

asks that the Third Cause of Action be dismissed because California Civil Code § 3344.1 does not

apply to acts outside of California and because Plaintiff has not alleged that the Brown Defendants

misappropriated Smith’s image for commercial purposes.

8


In addition, the Brown Defendants would ask that the Court dismiss all claims by Plaintiff

based the allegation that these Defendants violated any discovery orders issued by this Court or

other Courts.

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

August 30, 2010
Charleston, South Carolina

9

Brown reply memo support motion to dismiss

More Related Content

What's hot (20)

Viewers also liked (16)

Similar to Brown reply memo support motion to dismiss (20)

More from JRachelle (20)

Brown reply memo support motion to dismiss