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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, )
)
vs. ) MEMORANDUM IN SUPPORT OF
) MOTION TO DISMISS BY
STANCIL SHELLEY, a/k/a Ford Shelley, ) DEFENDANTS SUSAN M. BROWN AND
G. BEN THOMPSON, GAITHER ) THE LAW OFFICES OF SUSAN M.
THOMPSON, II, MELANIE THOMPSON, ) BROWN, P.C.
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 dismiss Plaintiff Howard K. Stern’s Amended
Complaint. The Brown Defendants hereby assert that the Amended Complaint should be dismissed
as to them for failure to state a claim upon which relief can be granted, Rule 12(b)(6) of the Federal
Rules of Civil Procedure, res judicata, and collateral estoppel.
FACTS
Defendant Ben Thompson was a social acquaintance of Deceased Plaintiff, Anna Nicole
Smith. Defendant Thompson met Smith in July of 2005. Smith developed a relationship with
Defendant Thompson and Defendant Thompson’s family, including Defendant Ford Shelley
(Thompson’s son-in-law), Gina Shelley (Thompson’s daughter), Riley Shelley (Thompson’s
granddaughter), Gaither Thompson (Thompson’s son), and Melanie Thompson (Thompson’s
daughter-in-law). For the following two years, Defendant Thompson and his family not only

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welcomed Smith as a member of their family but also allowed Smith and Plaintiff Howard Stern to
stay at several houses owned by Defendant Thompson in Myrtle Beach, South Carolina, the Florida
Keys, and the Bahamas for months at a time.
Defendant Thompson’s house in the Bahamas was known as “Horizons.” Deceased Smith
was residing at this house at the time of her death. Although Thompson paid for Horizons and
holds the deed to Horizons, Plaintiff contests the ownership of the house.
Smith passed away on February 8, 2007. According the Amended Complaint, immediately
following Smith’s death, Defendants Ford Shelley, Gina Shelley, and Gaither Thompson traveled to
Horizons and removed material from the house, namely two computers, a hard drive, some
paintings and drawings by Smith, tapes, and documents. The originals of all of these materials have
been turned over to the Plaintiff or to police. Plaintiff contends this material belonged to Smith and
was improperly removed and distributed by Defendants.
After all of this occurred, Defendant Susan Brown entered a representation agreement with
Defendant G. Ben Thompson in October of 2006 wherein she agreed to represent him and several
entities he owned with regards to his dispute with Smith regarding Horizons. Brown was asked to
act as a liaison between Thompson and his Bahamian attorneys.
Based on the Amended Complaint, Brown’s involvement with materials possibly removed
from Horizons and belonging to the Plaintiff Estate is extremely limited. Plaintiff’s claims against
Brown are based on two purported actions. First, Plaintiff alleges that Brown provided some
materials to Neil McCabe, an attorney representing Smith’s mother. Amended Complaint,
Paragraphs 92-127. All of these materials have been returned.
Plaintiff has also alleged that Brown failed to timely turn over two hard drives to Plaintiff in
the course of discovery in this case. Brown’s alleged failure to timely turn over those hard drives in
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compliance with a prior Consent Order is the subject of a motion for sanctions pending before the
Court.
LEGAL ARGUMENT
I. THE LEGAL STANDARD.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a
complaint if a party fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When reviewing the legal sufficiency of a complaint, the Court must construe the
factual allegations “in the light most favorable to plaintiff.” Schatz v. Rosenberg, 943 F.2d 485,
489 (4th Cir. 1991). However, the Court need not accept legal conclusions drawn by the pleader
from the facts alleged. Id.
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.” Ashcroft v. Iqbal,
___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). This mandate is set forth in Rule 8(a)(2) of the Federal Rules of Civil
Procedure, which requires that pleadings contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although the standard set
out in Rule 8(a)(2) does not require detailed factual allegations, “it does demand more than an
unadorned the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (2009)
(citing Twombly, 550 U.S. at 555); Papasain v. Allain, 478 U.S. 265, 286 (1986). Accordingly,
a complaint that only offers “labels and conclusions” or a “formulaic recitation of the elements
of a cause of action” is deficient. Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555,
557). Nor will a complaint that merely tenders “naked assertions devoid of further factual
enhancement” suffice. Iqbal, 129 S.Ct. at 1949. A complaint must have “enough facts to state a
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claim to relief that is plausible on its face.” Id, (quoting Twombly, 550 U.S. at 570).
Determining whether a plausible claim has been stated is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950.
A claim is plausible “when the plaintiff pleads factual content that allows the court to draw a
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.
Plausibility requires less than probability but more than the sheer possibility that a defendant has
acted unlawfully. Id. Where a complaint only pleads facts consistent with a theory of liability,
the complaint falls short of plausibility and an entitlement to relief under Rule 8(a)(2). Id.
Additionally, “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but not ‘shown’ - that the pleader is
entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
I. PLAINTIFF CANNOT BRING CAUSES OF ACTION BASED ON CALIFORNIA
PROCEDURAL LAW IN SOUTH CAROLINA DISTRICT COURT.
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 South Carolina choice of law principles, the substantive law is
determined by the law of the state in which the injury occurred (lex loci delicti) and procedural
matters by the law of the forum (lex fori). Thornton v. Cessna Aircraft Co., 886 F.2d 85, 87 (4th
Cir. 1989).
At least two of Plaintiff’s causes of action are based on California procedural law that has
no application to an action pending in the U.S. District Court in South Carolina. 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). A review of the annotated statute
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demonstrates no reported opinions on the statute in any court other than the California State
Court, further supporting the fact that it is a procedural law with no application outside of
California. Since this matter is governed by the procedural rules of South Carolina and the
Federal Court, California Probate Code procedures have no applicability to this action. As such,
Plaintiff’s Second Cause of Action should be dismissed.
Similarly, Plaintiff’s Third Cause of Action for appropriation of a right of publicity is
based on California Civil Code § 3344.1, which is a damage statute that is part of the “Relief”
provisions of California’s Civil Code. The entire section of the Code in which the law is located
is deemed remedial in nature. California Civil Code § 3274. See also Downing v. Abercrombie
& Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) (“In addition to the common law cause of action,
California has provided a statutory remedy for commercial misappropriation under California
Civil Code § 3344. The remedies provided for under California Civil Code § 3344 complement
the common law cause of action; they do not replace or codify the common law.”). Further, a
review of the annotated statute reveals no courts outside of South Carolina interpreting or relying
upon the statute, further indicating that it is procedural with no force outside of California courts.
Since California Civil Code § 3344.1 is procedural in nature, it cannot be relied upon in this
action, and Plaintiff’s Third Cause of Action should be dismissed.
II. CALIFORNIA CIVIL CODE § 3344.1 DOES NOT APPLY TO ACTIONS ARISING
OUT ACTS THAT OCCURRED OUTSIDE OF CALIFORNIA.
A related problem with Plaintiff’s reliance on California Civil Code § 3344.1 is that the
statute’s scope is explicitly limited 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). This is not a choice of law provision, but rather a specific
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limitation on the reach of the Section 3344.1. Cairns v. Franklin Mint Co., 120 F.Supp.2d 880,
883 (C.D.Cal. 2000) (“The only reasonable interpretation of this provision from its plain
language is that it applies only to claims that arise out of acts occurring in California.”).
Plaintiff’s allegations regarding the Brown Defendants are limited to actions that
occurred in Georgia and South Carolina. As part of her representation of Defendant Shelley,
Brown has never been to California nor does the First Amended Complaint allege that any of
Brown’s acts occurred in California. As such, California Civil Code § 3344.1 is not applicable
to the actions of Brown, and Plaintiff’s Third Cause of Action against Brown should be
dismissed.
III. CALIFORNIA CIVIL CODE § 3344.1 ONLY APPLIES TO THE USE OF
DECEDENT’S IMAGE FOR THE PURPOSES OF SELLING PRODUCTS.
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. 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.
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III. THE PRINCIPALS OF RES JUDICATA AND COLLATERAL ESTOPPEL BAR
PLAINTIFF FROM SUING BROWN ON GROUNDS THAT HAVE ALREADY
BEEN ADJUDICATED BY ANOTHER COURT.
As noted, the accusations against Brown concerning her handling of two hard drives arise
out of a discovery dispute that is the subject of a pending motion for sanctions. Brown’s alleged
actions concerning the handling of the two hard drives is not an appropriate basis for a lawsuit
for two reasons.
First, Plaintiff has already chosen to pursue relief for these alleged actions by way of a
motion for sanctions pending before the Court. In other words, Plaintiff seeks two bites of the
apple – both a motion for sanctions and a legal claim – for 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 dismiss the Second and Third Causes of Action against these
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Defendants in that said actions are based on inapplicable California procedural law. In addition,
Defendants would ask that the Court dismiss all claims by Plaintiff based on these Defendants’
alleged violation of any discovery orders issued by this Court or other Courts because Plaintiff is
already pursuing relief for these actions in a motion for sanction, and because there is no civil cause
of action for violation of a discovery order.
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 5, 2010
Charleston, South Carolina
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