Reply In Support Of Motion To Amend And Add Brown Law Firm

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


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


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


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


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


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


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.

7


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


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,

9


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;


likeness, in any manner, for the purposes of advertising or selling; 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

10


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

11


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.

12


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

13


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

14


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
Nicole.Wade@BryanCave.com

15


Luke A. Lantta
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
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

16


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
Louis@folkenslaw.com

6035502

17

Reply In Support Of Motion To Amend And Add Brown Law Firm

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