Motion to Dismiss Awaiting Resistance in Dispute Over Proposed Film, The Shadow Over Innsmouth

E-FILED 2014 MAR 20 10:08 AM SAC - CLERK OF DISTRICT COURT











E-FILED 2014 APR 08 2:18 PM SAC - CLERK OF DISTRICT COURT

IN THE IOWA DISTRICT COURT FOR SAC COUNTY

BRYAN MOORE,

CASE NO. LACV 019503

Plaintiff,

MOTION TO DISMISS

v. SULTAN SAEED AL DARMAKI, DARK DUNES PRODUCTIONS a/k/a DARK DUNES CINEMA PRODUCTIONS, Defendants.

COME NOW the Defendants, Sultan Saeed al Darmaki and Dark Dunes Productions,

pursuant to Iowa R. Civ. P. 1.421, and hereby moves that the court dismiss this action in its

entirety. Pursuant to Iowa Rule of Civil Procedure 1.431(3), defendants have filed a Brief in

Support of their Motion to Dismiss and a Declaration by Sultan Saeed Al Darmaki, and by this

reference incorporate said documents herein.

WHEREFORE, defendants respectfully requests the Court grant their Motion to Dismiss

regarding all claims against them in this case and that the costs of this action be assessed against

Plaintiff.

Certificate of Service The undersigned certifies that the foregoing instrument was served upon the parties to this action by serving a copy upon each of the attorneys listed as receiving notice on April 24, 2014. /s/ Laura N. Martino Copy to: Jonathan C. Wilson Tara Z. Hall Davis, Brown, Koehn, Shorts & Roberts, P.C. 215 10th Street, Suite 1300 Des Moines, IA 50309

GREFE & SIDNEY, P.L.C. By: /s/ Guy R. Cook Guy R. Cook, AT0001623 By: /s/ Laura N. Martino Laura N. Martino, AT0005043 500 E. Court Ave., Ste. 200 Des Moines, IA 50309 Phone: 515/245-4300 Fax: 515/245-4452


[email protected] [email protected] ATTORNEYS FOR DEFENDANT DARK DUNES PRODUCTIONS

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BRYAN MOORE,


Plaintiff,

BRIEF IN SUPPORT OF MOTION TO

DISMISS

v. SULTAN SAEED AL DARMAKI, DARK DUNES PRODUCTIONS a/k/a DARK DUNES CINEMA PRODUCTIONS, Defendants.

COME NOW the defendants, Sultan Saeed Al Darmaki (hereinafter “Al Darmaki”) and

Dark Dunes Cinema Productions (hereinafter “Dark Dunes”), pursuant to Iowa Rules of Civil

Procedure 1.421(1)(b) and 1.431(3), and hereby submit their brief in support of their Motion to

Dismiss.

I. BACKGROUND

Plaintiff’s claims against defendants arise from a “Production Agreement” for the

production of a film entitled “The Shadow over Innsmouth”. (Petition ¶ 5, 10, 11, 16.)

However, as set forth in more detail herein, Defendant moves the Court to dismiss this action for

lack of personal jurisdiction over the Defendants as there are insufficient contacts between the

Defendants, Plaintiff’s claim and the state of Iowa to allow the court to exercise jurisdiction over

the Defendants. Further, as demonstrated below, the Petition is completely devoid of any

specific allegations against Al Darmaki personally and instead attempts to impute liability to Al

Darmaki based solely upon his status as a partner of Dark Dunes Cinema Productions. Except for


merely reciting the legal elements of alter ego liability, however, Plaintiff alleges nothing that

would warrant piercing the corporate veil between Dark Dunes and its member Al Darmaki.

Accordingly, as set forth in greater detail below, the Petition must be dismissed for the

following three independent reasons:

1. The Complaint must be dismissed pursuant to Rule 1.421(1)(b) because the Court

lacks jurisdiction over Dark Dunes Productions. Dark Dunes Productions is a limited liability

company organized and existing under the laws of United Arab Emirates, with its principal place

of business in Abu Dhabi, United Arab Emirates, and does not, and did not during the relevant

time period, engage in business in Iowa or have any other connection or contact with Iowa

sufficient to establish personal jurisdiction over it;

2. The Complaint must be dismissed pursuant to Rule 1.421(1)(b) because the Court

lacks jurisdiction over Al Darmaki. Al Darmaki is an individual who is a resident of Abu Dhabi,

United Arab Emirates. During the relevant time period, he did not conduct business in Iowa or

have any other connection or contact with Iowa sufficient to establish personal jurisdiction over

him; and

3. Plaintiff fails to allege facts sufficient to pierce the corporate veil between Dark

Dunes and Al Darmaki, and therefore Dark Dunes contacts with Iowa cannot be imputed to Al

Darmaki. Al Darmaki’s status as a partner of Dark Dunes is simply not enough.

II. STATEMENT OF FACTS ALLEGED

Plaintiff concedes that Dark Dunes Productions is a foreign corporation with its corporate

offices in Abu Dhabi, United Arab Emirates. (Petition ¶ 3.) Plaintiff further concedes that

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defendant Al Darmaki is a resident of Abu Dhabi, United Arab Emirates. (Petition ¶ 2). During

the relevant time period, Al Darmaki was a manager and partner of Dark Dunes Productions.

(Declaration of Al Darmaki ¶ 1; Attached as Exhibit 1). In August of 2013, Al Darmaki met

Plaintiff in Providence, Rhode Island for the first time. (Declaration ¶ 7). Al Darmaki had

previously funded a Kickstarter project that Moore was involved in, and they decided to meet in

Rhode Island to discuss a new project that Moore was proposing to make. (Declaration ¶ 8).

During this meeting, Al Darmaki and Moore agreed to make a film entitled “Shadow Over

Innsmouth” (hereinafter the “Film”) (Declaration ¶ 9). The parties executed three contracts as

follows1:

1. A contract for the preparation of an outline, first draft and breakdown motion picture script (Exhibit A to Moore’s Petition; hereinafter “Script Agreement”);

2. A contract for the directing and production of the film (Exhibit B to Moore’s Petition; hereinafter the “Production Agreement”); and

3. A non-disclosure agreement.

(Declaration ¶ 10).

Pursuant to the Script Agreement, dated September 10, 2013, upon Moore’s

commencement of preparation of the script for the Film, Dark Dunes agreed to pay Moore

$10,000, which payment was made. (Declaration ¶ 13). The contract further required Moore to

deliver the outline and script to Dark Dunes no later than October 15, 2013 “in manner and form

satisfactory to Dark Dunes Productions.” (Exhibit A to Moore’s Petition).

1 A fourth contract, that was never written or executed, was contemplated for the funding

to shoot the Film.

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The Production Agreement, dated September 30, 2013 provided that Moore was to render

services including film direction, production (including pre-production, shooting, and post-

production), marketing and development and execution of distribution strategy. (Exhibit B to

Moore’s Petition). In exchange Dark Dunes would make eight (8) quarterly payments as the

activities progressed. Each payment was in the amount of $18,750. Work on the production

agreement was to be started September 30, 2013 “in a manner and form satisfactory to Dark

Dunes Productions.” (Exhibit B to Moore’s Petition). The contract further provided that “in the

instance of Moore’s “intentional, knowing, or deliberate failure to perform properly, wilful

negligence or dereliction of duty”, Dark Dunes Productions reserved the right to terminate the

terms of the contract. Two quarterly payments were made pursuant to the contract. (Declaration

¶ 13).

During the week of October 7, 2013, just prior to the due date for Moore to produce the

outline and script, Dark Dunes producers Mallory O’Meara and Frank Woodward, visited Moore

in Iowa to discuss the script. (Declaration ¶ 14). No production activities took place on the trip.

(Declaration ¶ 14). On October 15, 2013, Moore failed to deliver an outline and script to Dark

Dunes Productions in a manner and form that was satisfactory to Dark Dunes Productions.

(Declaration ¶ 15). The script was not in the appropriate format for a script (the industry

standard is to prepare scripts using “Final Draft” but Moore delivered the scrip in “Microsoft

Word” format). (Declaration ¶ 16). In addition, the script was short, had grammatical mistakes

throughout and otherwise failed to meet the expectations of Dark Dunes. (Declaration ¶ 17).

Moore was told that the material was not satisfactory, was provided specific revisions to be

incorporated into the script, and was allowed until December 15, 2013 to complete the script.

(Declaration ¶ 18). On December 15, 2013, Moore delivered substantially the same quality of

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work as he had on October 15, 2013. (Declaration ¶ 19). Dark Dunes producer, Mallory,

conveyed that the script was not satisfactory to Dark Dunes Productions. (Declaration ¶ 19).

During the week of January 2, 2014, Al Darmaki, Mallory, Woodward and Moore met in

Los Angeles, CA. During this meeting, Moore was advised that he had to create a satisfactory

script within three weeks or the contract would be terminated as there is not film to produce if an

adequate script is not created. (Declaration ¶ 20). Moore ultimately delivered a similar, lacking

draft and Dark Dunes Productions exercised its right to terminate the contract. (Declaration ¶

21).

Communication between Sultan, Mallory and Moore occurred generally over the

telephone or by e-mail. (Declaration ¶ 15, 18, 19, 21). No production activities actually

occurred in Iowa. (Declaration ¶ 25). No staff was hired to create the film in Iowa. (Declaration

¶ 25). No locations were secured for filing and no sets were built in Iowa. (Declaration ¶ 25).

No shooting, editing, or marketing of the film ever occurred in Iowa. (Declaration ¶ 25). Further,

Al Darmaki has never visited the state of Iowa. (Declaration ¶ 23).

III. ARGUMENT

A. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION OVER DARK DUNES PRODUCTIONS

The Complaint must be dismissed as against Dark Dunes productions pursuant to Rule

1.421(1)(b) because Plaintiff has not pled any facts that would establish a basis for this Court to

assert personal jurisdiction over Dark Dunes Productions, and Dark Dunes Productions has

affirmatively established that it has no jurisdictional contacts with Iowa.

Iowa Rule of Civil Procedure 1.306 provides in pertinent part as follows:

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Every corporation, individual, personal representative, partnership or association that shall have the necessary minimum contact with the state of Iowa shall be subject to the jurisdiction of the courts of this state.

Iowa R. Civ. P. 1.306. Rule 1.306 expands Iowa's jurisdictional reach to the widest due process

parameters allowed by the United States Constitution. Hammond v. Fla. Asset Fin. Corp., 695

N.W.2d 1, 5 (Iowa 2005).

For Iowa to assert personal jurisdiction over Dark Dunes, Dark Dunes must have had

“certain minimum contacts with [Iowa] such that maintenance of the suit [in Iowa] does not

offend traditional notions of fair play and substantial justice.” Twaddle v. Twaddle, 582 N.W.2d

518, 520 (Iowa App. 1998) (citing International Shoe Co. v Washington, 326 U.S. 310, 316 66

S.Ct. 154, 158, 90 L.Ed.2d 95, 102 (1945)); see also Ross v. First Savings Bank of Arlington,

675 N.W.2d 812, 815 (Iowa 2004); Hodges v. Hodges, 572 N.W.2d 549, 551 (Iowa 1997).

In order to determine whether a court possesses personal jurisdiction over a nonresident

defendant, Iowa courts consider the following five factors:

(1) the quantity of the contacts the party has with Iowa;

(2) the nature and quality of those contacts;

(3) the source and connection of the cause of action with the contacts;

(4) the interest of the forum state; and

(5) the convenience of the parties.

Ross, 675 N.W.2d at 816; Al-Jon, Inc. v. Garden Street Iron & Metal, Inc., 301 N.W.2d 709, 711

(Iowa 1981); Twaddle, 582 N.W.2d at 520. The first three factors are the most important. Id.

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“The ‘constitutional touchstone’ in determining jurisdiction is whether defendant has

purposefully established minimal contacts in the form state, and defendant’s conduct and

connection is such defendant should have reasonably anticipated being haled into court in a

forum state. [citations omitted] Unilateral activity on behalf of one who claims a relationship

with a nonresident defendant does not satisfy the requirement of contact with the form state. It is

essential there must be some act by which the defendant purposefully avails itself of the privilege

of conducting activities in the forum state, thereby invoking the benefits and protections of its

laws.” OnmiLingua, Inc. v. Great Golf Resorts of World, Inc., 500 N.W.2d 721 (Iowa 1993).

The accompanying declaration of Al Darmaki, a Dark Dunes Productions manager,

affirmatively establishes the absence of sufficient contacts of Dark Dunes Productions with

Iowa.

1. Quantity of Contacts

Dark Dunes is, and at all times relevant to this litigation was, a limited liability company

organized and existing under the laws of United Arab Emirates, is headquartered in Abu Dhabi,

United Arab Emirates, and maintains its principal place of business there. (Declaration. ¶ 3.)

Dark Dunes does not, and did not during the relevant time period, maintain any office or

employee in the State of Iowa, did not have a registered agent in the State, and did not maintain

any bank accounts in the state. (Declaration ¶ 2-4). Communications with Moore generally

occurred in locations other than Iowa (Rhode Island and California) or were by e-mail or phone.

(Declaration ¶ 7, 15, 18, 19, 20, 21). Dark Dunes producers Mallory and Woodward visited the

State on only one limited occasion. (Declaration ¶ 14.) Although plaintiff lives in the state, and

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consequently, did his work in the state, that is simply not enough to assert jurisdiction over Dark

Dunes.

2. Quality of Contacts

A plaintiff’s contract with a nonresident party alone does not automatically establish

sufficient minimum contacts in plaintiff’s forum state. OmniLingua, Inc., 500 N.W. 2d at 724.

Where jurisdiction is alleged on the basis of a contract, Iowa Court’s analyze prior negotiations,

contemplated future consequences, terms of the contract and the parties’ actual course of dealing.

Id. The contract contemplated the production of a film. However, nothing about the movie

required performance in Iowa and because the project never got past the script writing stage no

production occurred in Iowa. (Declaration ¶ 20). Specifically, no employees were hired, no

locations secured, and no sets were built. (Declaration ¶ 25). The negotiations leading to the

contract took place outside the state of Iowa, and all but one meeting regarding the project also

occurred outside of the state of Iowa, by email or phone. (Declaration ¶ 7, 15, 18, 19, 20, 21).

Outside of the fact that Moore lives in Iowa, and as a consequence, did his work here in the state,

Dark Dunes had no further connections with the state of Iowa.

3. Source And Connection Of The Contacts

This case arises out of the Production Agreement for a project that Moore sought

financing for from Dark Dunes Productions. Moore went to meet Al Darmaki outside of the

state of Iowa to discuss the initial project, and for later meetings regarding the film. (Declaration

¶ 9, 20). The only meeting related to the project that occurred in Iowa was only as a result of the

fact that Moore resided in the state. (Declaration ¶ 14).

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4. Interest of the Forum

Iowa does not have a strong interest in protecting citizens of this state as a result of the

parties’ agreement. This was a private contractual agreement that has no bearing on the citizens

of the state.

5. Convenience of the Parties

Iowa is an inconvenient forum for defendants. Witnesses for defendants reside in Los

Angeles, CA or in the United Arab Emirates. The parties’ agreements and other documents

related to the film are maintained in Los Angeles, CA and the United Arab Emirates.

Weighing the factors above it is clear that plaintiff cannot establish that defendants have

sufficient minimum contacts with Iowa. In the absence of such a showing, Iowa court may not

exercise jurisdiction over a non-resident defendant and plaintiff’s petition should be dismissed

for lack of personal jurisdiction.

B. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION OVER SULTAN SAEED AL DARMAKI

The court likewise lacks sufficient minimum contacts with Al Darmaki to confer personal

jurisdiction. Al Darmaki’s contacts with the state are even more limited than those of Dark

Dunes. Al Darmaki is not a party to the Production Contract. (Declaration ¶ 12). He has never

visited the state of Iowa and he does not have any business in the state of Iowa. (Declaration ¶

23). Apparently understanding that Al Darmaki has no contacts with Iowa, Plaintiff attempts to

impute to Al Darmaki the forum contacts of Dark Dunes by alleging that Al Darmaki is the “alter

ego” of Dark Dunes. (Petition. ¶¶ 25-33.) Except for merely reciting the legal elements of alter

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ego liability, however, Plaintiff alleges nothing that would warrant piercing the corporate veil

between Dark Dunes and its partner Al Darmaki.

It is well settled that shareholders and not individually liable for the acts of the

corporation. See Midwest Management Corp. v. Stephens, 291 N.W.2d 896, 902 (Iowa 1980)

(corporations are entities separate from their shareholders). A court may disregard a corporate

structure by piercing the corporate veil only under circumstances “where the corporation is a

mere shell, serving no legitimate business purpose, and used primarily as an intermediary to

perpetuate fraud or promote injustice.” C. Mac Chambers Co. v. Iowa Tae Kwon Do Academy,

Inc., 412 N.W.2d 593, 597 (Iowa 1987) (quoting Briggs Transp. Co. v. Starr Sales Co., 262

N.W.2d 805, 810 (Iowa 1978)). The burden is on the party seeking to pierce the corporate veil to

show the exceptional circumstances required. C. Mac Chambers, 412 N.W.2d at 598; In re

Marriage of Ballstaedt, 606 N.W.2d 345, 349 (Iowa 2000). The following factors would support

such a finding: (1) the corporation is undercapitalized; (2) without separate books; (3) its

finances are not kept separate; (4) the corporation is used to promote fraud or illegality; (5)

corporate formalities are not followed; or (6) the corporation is merely a sham. See, e.g., In re

Marriage of Ballstaedt, 606 N.W.2d 345, 349 (Iowa 2000).

Dismissal of claims against a shareholder for failure to state a claim is appropriate where,

as in this case, the plaintiff fails to make factual allegations sufficient to satisfy the elements of a

veil piercing claim. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.; see also Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.2008)

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(noting that a complaint “must include sufficient factual information to provide the ‘grounds' on

which the claim rests, and to raise a right to relief above a speculative level” (quoting Twombly,

550 U.S. at 555, 127 S.Ct. 1955)); Union Ins. Co. v. Hull & Co., Inc., 831 F. Supp. 2d 1060,

1064 (S.D. Iowa 2011)(“ Without any discernible allegations of any wrongdoing by Brown or

any underlying facts that would provide a basis for finding that Brown should be held liable

under the alter ego doctrine or by piercing the corporate veil, the Motion to Dismiss must be

granted.”)

Plaintiff has failed to allege any facts to support a veil piercing claim. Instead, Plaintiff’s

“mere instrumentality/alter ego” claim rests solely on a bare-bones recital of the elements of the

claim that are not supported by sufficient factual allegations (see Petition ¶¶ 25-33) and

Plaintiff’s conclusory allegations in no way create a basis to disregard the corporate separation

between Dark Dunes and Al Darmaki. Accordingly, the Petition should be dismissed pursuant to

Rule 1.421(1)(b).

IV. CONCLUSION

For all of the foregoing reasons, as well as those set forth in the accompanying

declaration, Dark Dunes Cinema Productions and Sultan Saeed Al Darmaki respectfully request

that their motion to dismiss the Petition be granted in its entirety.

Certificate of Service The undersigned certifies that the foregoing instrument was served upon the parties to this action by serving a copy upon each of the attorneys listed as receiving notice on April 25, 2014. /s/ Laura N. Martino

GREFE & SIDNEY, P.L.C. By: /s/ Guy R. Cook Guy R. Cook, AT0001623 By: /s/ Laura N. Martino Laura N. Martino, AT0005043

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Copy to: Jonathan C. Wilson Tara Z. Hall Davis, Brown, Koehn, Shorts & Roberts, P.C. 215 10th Street, Suite 1300 Des Moines, IA 50309

500 E. Court Ave., Ste. 200 Des Moines, IA 50309 Phone: 515/245-4300 Fax: 515/245-4452 [email protected] [email protected] ATTORNEYS FOR DEFENDANT DARK DUNES PRODUCTIONS

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#2458199


BRYAN MOORE,

Plaintiff,

vs.

SULTAN SAEED AL DARMAKI, DARK

DUNES PRODUCTIONS a/k/a DARK

DUNES CINEMA PRODUCTIONS

Defendants.

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PLAINTIFF’S UNRESISTED

MOTION FOR EXTENSION OF

TIME TO FILE RESISTANCE

TO DEFENDANTS’ MOTION

TO DISMISS

COMES NOW the Plaintiff, Bryan Moore ("Plaintiff"), by and through his attorneys, and

for his Unresisted Motion for Extension of Time to File a Resistance to Defendants’ Motion to

Dismiss states as follows:

1. On March 20, 2014, Plaintiff filed its Petition in this matter.

2. On April 25, 2014, Defendants filed a Motion to Dismiss.

3. The current deadline for Plaintiff to file a Resistance, taking into account the

3-day mailing rule, pursuant to Iowa Rule of Civil Procedure 1.443(2), is Thursday, May 8,

2014.

4. Due to professional obligations and travels out of State, the undersigned counsel

respectfully request an extension of time to respond to Defendants’ Motion.

5. The undersigned counsel has consulted with Defendants’ counsel Laura Martino

who has indicated she does not object to counsel’s request for a seven (7) day extension of time.

6. This matter has not been set for trial and no hearing has yet been set on the

Motion to Dismiss.

E-FILED 2014 MAY 05 2:20 PM SAC - CLERK OF DISTRICT COURT

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7. Plaintiff respectfully requests an additional seven (7) days, up to and including

May 15, 2014, to file its Resistance to Defendants’ Motion to Dismiss.

WHEREFORE Plaintiff Bryan Moore respectfully prays the Court enter an Order

extending the time for Plaintiff to file a Resistance to Defendants’ Motion to Dismiss for an

additional seven (7) days, up to and including May 15, 2014 and for any such further relief the

court deems just and appropriate under the circumstances.

/s/ Jonathan C. Wilson

Jonathan C. Wilson, AT0008628

Tara Z. Hall, AT0003152

Davis, Brown, Koehn, Shors & Roberts, P.C.

215 10th Street, Suite 1300

Des Moines, Iowa 50309

Telephone: (515) 288-2500

Facsimile: (515) 243-0654

E-mail: [email protected]

[email protected]

ATTORNEYS FOR THE PLAINTIFF

Original Filed.

COPY TO:

Guy R. Cook

Laura N. Martino

GREFE & SIDNEY, P.L.C.

500 E. Court Ave., Ste. 200

Des Moines, IA 50309

Phone: 515/245-4300

Fax: 515/245-4452

ATTORNEYS FOR DEFENDANT DARK

DUNES PRODUCTIONS

PROOF OF SERVICE

The undersigned certifies that the foregoing instrument was served upon

all parties to the above cause to each of the attorneys of record herein at

their respective addresses disclosed on the pleadings on May 5, 2014 by:

US Mail FAX

Hand Delivered Overnight Courier

Federal Express Other: E-File

Signature: /s/ Tara Z. Hall

E-FILED 2014 MAY 05 2:20 PM SAC - CLERK OF DISTRICT COURT

2RCV01


BRYAN SCOTT MOORE ,

PLAINTIFF(S),

vs.

SULTAN SAEED AL DARMAKIDARK DUNES CINEMA PRODUCTIONS,

DEFENDANT(S).

Case No. 02811 LACV019503

O R D E R

Plaintiff's Motion for Extension of Time comes before the Court.

IT IS ORDERED that the aforesaid Motion is SUSTAINED.

Plaintiff shall have until the close of business on May 15, 2014, to file any Resistance

to the Motion to Dismiss.

CLERK TO FURNISH COPIES TO:

Counsel of Record

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E-FILED 2014 MAY 06 9:37 AM SAC - CLERK OF DISTRICT COURT

State of Iowa CourtsCase Number Case TitleLACV019503 BRYAN MOORE V. SULTAN SAEED AL DARMAKI, DARK

DUNESType: OTHER ORDER

So Ordered

Electronically signed on 2014-05-06 09:37:33

2 of 2

E-FILED 2014 MAY 06 9:37 AM SAC - CLERK OF DISTRICT COURT

Documents

Motion to Dismiss Awaiting Resistance in Dispute Over Proposed Film, The Shadow Over Innsmouth