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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
HOWARD K. STERN, as Executor of the ) Civil Action No.: 4:08-cv-2753-TLW-TER
Estate of Vickie Lynn Marshall, a/k/a )
Vickie Lynn Smith, a/k/a Vickie Lynn )
Hogan, a/k/a Anna Nicole Smith, )
)
Plaintiffs, )
) ORDER
-vs- )
)
)
STANCIL SHELLEY, a/k/a Ford Shelley, )
G. BEN THOMPSON, and John or Jane )
Does 1-12, whose true names are unknown, )
)
Defendants. )
___________________________________ )
I. INTRODUCTION
This action arises out of the removal of property belonging to the Estate of Vickie Lynn
Marshall a/k/a Vickie Lynn Smith a/k/a Vickie Lynn Hogan a/k/a Anna Nicole Smith (hereinafter,
the Estate) from a home located in the Bahamas known as Horizons (hereinafter, Horizons), about
which Ms. Smith and Defendants were involved in a contentious dispute regarding ownership at the
time of Ms. Smith’s death. Plaintiff asserts causes of action for conversion, wrongful taking of
estate property in violation of California Probate Code § 850, et seq., statutory and common law
commercial appropriation of right of publicity in violation of California Civil Code § 3344.1, unjust
enrichment/restitution, unfair competition in violation of California Business & Professional Code
§ 17200, et seq., violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5) and civil
conspiracy.
Presently before the Court is Plaintiff’s Motion for Leave to Amend (Document # 78) his

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Complaint. Plaintiff moves pursuant to Federal Rules of Civil Procedure 15(a)(2), 15(d), and
20(a)(2) to amend his Complaint to join Gaither Bengene Thompson, II (Gaither), Melanie
Thompson (Melanie), Gina Thompson Shelley (Gina) (collectively, the “Doe Defendants”), and
Susan M. Brown (Brown) and The Law Offices of Susan M. Brown, P.C. (the Law Firm) as party
defendants and to amend and supplement his Complaint with facts learned during the discovery
process. All pretrial matters have been referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) & (B) and Local Rule 73.02(B)(2)(e), DSC.
II. RELEVANT FACTS
A. Doe Defendants
In addition to the Defendants named in the Complaint, Plaintiff also names “Doe
Defendants”– unknown persons who “acted in concert with [Defendant Stancil “Ford” Shelley,
(hereinafter, Ford)] concerning property belonging to the Estate.” Complaint ¶ 5. Plaintiff provides
in the original Complaint that he will seek to name these defendants once their identities are
ascertained through discovery. Plaintiff represents in his Motion that Gaither Bengene Thompson,
II (Gaither) and Melanie Thompson (Melanie) have conceded through counsel that they are two of
the Doe Defendants. Further, Gaither and Gina testified that they were personally involved in the
removal of Estate property from Horizons. Gaither Dep. 86-94; Gina Dep. 81-83. Gaither also
testified that Melanie entered Horizons on the day after Ms. Smith’s death and later took an Estate
computer from Ford’s home to her own home for a few days. Gaither Dep. 88, 106.
B. Susan Brown and the Law Offices of Susan M. Brown, P.C.
Brown entered into an agreement with G. Ben Thompson (hereinafter, Thompson) in October
2006 wherein she agreed to represent him and several entities he owned with regards to his dispute
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with Smith regarding Horizons. Brown Aff. ¶ 2. At the same time, Brown verbally agreed to
represent other members of Thompson’s family on this matter. Id. Following the removal of Estate
property from Horizons, Ford gave to Brown some of the Estate property, including copies of Estate
computer hard drives. Brown later gave the hard drives to The O’Quinn Law Firm, which had
engaged a computer forensics expert to conduct reviews of the hard drives. Brown Dep. 22-25, 167-
69. Brown also copied Estate property and maintained these copies on her and her firm’s computer.
Id. at 30-37.
C. Additional Facts
As a result of discovery, Plaintiff seeks to add additional factual allegations that he argues
provide him with additional grounds for relief. Specifically, Plaintiff seeks to allege that Ford
distributed Estate property to more third-parties than originally learned, including Geraldo Rivera
with Fox News, the O’Quinn Law Firm, former television journalist Rita Cosby, and the California
Department of Justice. Ford Dep. I at 140-141, 91-93; Ford Dep. II at 29; Brown Dep. at 163-64,
199-201.
Additionally, Plaintiff seeks to allege post-Complaint facts which he asserts warrant
supplementing the Complaint. Specifically, Plaintiff seeks to allege that Brown maintained copies
of Estate property on her own computer without disclosing the fact to Plaintiff or the Court. Brown
Dep. at 30-37.
III. DISCUSSION
As stated above, Plaintiff moves pursuant to Federal Rules of Civil Procedure 15(a)(2), 15(d),
and 20(a)(2) to amend his Complaint to join Gaither Bengene Thompson, II (Gaither), Melanie
Thompson (Melanie), Gina Thompson Shelley (Gina) (collectively, the “Doe Defendants”), and
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Susan M. Brown (Brown) and The Law Offices of Susan M. Brown, P.C. (the Law Firm) as party
defendants and to amend and supplement his Complaint with facts learned during the discovery
process. Counsel for Ford has consented to the filing of the proposed Amended Complaint. See
Email from MacDonald to Lantta dated October 28, 2009. Thompson has not filed a Response in
opposition the motion. The only opposition comes from proposed new Defendants Brown and the
Law Firm.1 Brown argues that allowing the amendments would be prejudicial to her and would be
futile as to the claims against her. Brown does not appear to oppose the addition of Gaither, Melanie
and Gina as Defendants in this action or to the addition of factual allegations regarding Ford’s
distribution of Estate property to other third-parties.
Rule 15(a) provides that leave to amend a complaint should be “freely given when justice so
requires.” “The law is well-settled ‘that leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.’” Edwards v. City of Goldsboro, 178 F.3d 231, 242
(4th Cir.1999)(citing Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) and quoting
Johnson v. Oroweat Foods Co., 785 F.2d 503,509-10 (4th Cir.1986)).
Addition of Gaither, Melanie, and Gina is appropriate under Rule 15(a) and Rule 20(a)(2)
and is unopposed. Further, addition of the factual allegations regarding Ford’s distribution of Estate
property is appropriate under Rule 15(a) and is unopposed. Therefore, Plaintiff’s motion is granted
as to these proposed amendments.
The only proposed amendments at issue are the addition of Brown as a Defendant and the
1
For ease of reference, any further use of “Brown” within this Order will refer to both
Susan Brown and the Law Firm, unless otherwise noted.
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factual allegations against her. Brown first argues that adding her to the case would be prejudicial.
She argues that numerous depositions have already been taken and the expert disclosure and
discovery deadlines have passed. She argues that she would be prejudiced due to the fact that she
has not had the opportunity to participate in discovery as a party. However, in his Response,
Plaintiff asserts that he is not opposed to amending the deadlines in this case to allow Brown to
conduct discovery. Further, Plaintiff argues that Brown, as counsel for Thompson, fully participated
in the discovery that has occurred in this case thus far. Because Plaintiff is not seeking to add any
new legal theories, any additional discovery that is needed should be fairly limited. All of the
proposed new Defendants, including Brown, have already been deposed regarding their involvement
in the facts underlying this case. The need for additional discovery and an amended scheduling order
is not sufficiently prejudicial to outweigh the mandate that leave to amend a complaint be “freely
given.” See N.C. ex rel. Long v. Alexander & Alexander Servs., Inc., 711 F.Supp. 257, 259-60
(E.D.N.C.1989) (noting that the fact that parties will have to conduct additional discovery “does not
suffice as a showing of prejudice”). Thus, the undersigned finds that allowing the amendment would
not be prejudicial.
Brown also argues that Plaintiff’s motion should be denied because the addition of any claims
against her would be futile. For a motion to amend to be denied for futility, the amendment must
be “clearly insufficient or frivolous on its face.” Oroweat Foods Co., 785 F.2d at 510-511; see also
Rambus, Inc. v. Infineon Technologies, AG, 304 F.Supp.2d 812, 819 (E.D.Va.2004) (“Courts
generally favor the ‘resolution of cases on their merits’ ... [t]hus the substantive merits of a proposed
claim [or defense] are typically best left for later resolution, e.g., motions to dismiss or for summary
judgment, ..., or for resolution at trial.”) (quoting Davis v. Piper Aircraft Corp., 615 F.2d 606, 613
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(4th Cir.1980)); see also Robinson v. GEO Licensing Co., L.L.C., 173 F.Supp.2d 419, 423
(D.Md.2001).
Brown argues that, as former counsel in this case, she is immune from the claims Plaintiff
seeks to allege. 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). However, both Thompson and Ford testify that they did not authorize her to distribute Estate
property to the O’Quinn Law Firm. Shelley Dep. I at 164; Thompson Dep. at 152. Thus, a question
of fact exists as to whether Brown is immune from the claims Plaintiff seeks to assert against her.
Brown also addresses each cause of action and argues that Plaintiff cannot maintain a claim
against her under any of his theories of recovery. Brown argues that Plaintiff incorrectly assumes
that California law will apply in this action. Brown argues generally that South Carolina law applies
under the doctrine of lex loci delicti because the alleged injuries occurred in South Carolina.
Plaintiff does not dispute that the lex loci delicti doctrine, that is, the law of the state in which the
injury occurred, is applicable to these claims. Instead, Plaintiff argues that for the statutory claims
asserted by Plaintiff for misappropriation of publicity rights, unfair competition, and wrongful
taking of Estate property, the injury occurred in Plaintiff’s domicile, which Plaintiff alleges is
California. Proposed Amended Complaint ¶¶ 12, 28. Nevertheless, Plaintiff’s common law claims
are properly pleaded under either California law or South Carolina law. As for the California
statutory claims, while neither party thoroughly addresses the choice of law issue, for a motion to
amend to be denied for futility, the proposed amendment must be “clearly insufficient or frivolous
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on its face.” Oroweat Foods Co., 785 F.2d at 510-511. Based upon the record presented, the
undersigned cannot conclude the Plaintiff’s proposed amendments are clearly insufficient or
frivolous.2 Accordingly, allowing Plaintiff to amend his Complaint would not be futile.
IV. CONCLUSION
In sum, Brown has failed to show that allowing Plaintiff to amend his Complaint to add her
would be prejudicial or futile. Further, none of the parties object to allowing Plaintiff to add the Doe
Defendants or the new factual allegations. Thus, Plaintiff’s Motion for Leave to Amend (Document
# 78) is GRANTED. The Clerk of Court is directed to file the Amended Complaint, which is
attached as an exhibit to Plaintiff’s Motion. Plaintiff must serve the Amended Complaint within 15
days of the date of this Order. Defendants must respond in accordance with the Federal Rules of
Civil Procedure.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
July 1, 2010
Florence, South Carolina
2
It is further noted that Plaintiff does not seek to amend his Complaint to add claims under
California law. Those claims are already pending.
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