lacv019503 - contract dispute for movie script dismissed.pdf

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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mailto:[email protected]



BRYAN MOORE,


Plaintiff,

BRIEF IN SUPPORT OF MOTION TO

DISMISS


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


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


#2461195


BRYAN MOORE,

Plaintiff,

vs.




Defendants.

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PLAINTIFF’S MOTION TO

AMEND PETITION


for his Motion to Amend Petition states as follows:

1. Plaintiff filed its Petition against Defendant Sultan Saeed Al Darmaki, Dark

Dunes Productions a/k/a Dark Dunes Cinema Productions on or about March 20, 2014.

2. On April 24, 2014 Defendant, Sultan Saeed Al Darmaki (hereinafter “Al

Darmaki”), Dark Dunes Productions a/k/a Dark Dunes Cinema Productions filed a Motion to

Dismiss Plaintiff’s Petition based on lack of personal jurisdiction and failure to state a claim with

respect to the claim against Defendant Al Darmaki individually under a piercing the corporate

veil and alter ego doctrine. Plaintiff is filing a resistance to the motion contemporaneously

herewith.

3. Trial of this matter has not been scheduled.

4. Plaintiff’s Petition sets forth in paragraph 32 a factual allegation that “no separate

entity status was ever asserted or demonstrated [and] all dealings were conducted solely with

Defendant Al Darmaki and/or his designated agent in the United States, Mallory O’Meara.” This

factual allegation supports Moore’s assertion that Dark Dunes is a mere instrumentality and alter


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ego of Defendant Al Darmaki and establishes a prima facie claim. Plaintiff is also filing

contemporaneously herewith a Motion to Amend his Petition to highlight additional facts

relevant to the piercing the corporate veil and alter ego claim.

6. Under Iowa Rule of Civil Procedure 1.402(4) leave to amend “shall be freely

given when justice so requires.”

7. This motion should be granted in the interest of justice and judicial economy.

A proposed First Amended Petition is attached hereto as Exhibit “A.”

WHEREFORE, Plaintiff moves the Court for an Order allowing him to amend his

Petition in the form attached and for any and all other relief the Court deems just, equitable and

appropriate under the circumstances.







Telephone: (515) 288-2500

Facsimile: (515) 243-0654


[email protected]


Original Filed.


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COPY TO:

Guy R. Cook

Laura N. Martino




Phone: 515/245-4300

Fax: 515/245-4452


DUNES PRODUCTIONS

PROOF OF SERVICE



their respective addresses disclosed on the pleadings on May15, 2014 by:

US Mail FAX

Hand Delivered Overnight Courier Federal Express Other: E-File



#2457817


BRYAN MOORE,

Plaintiff,

vs.




Defendants.

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PLAINTIFF’S MEMORANDUM

OF AUTHORITIES IN

SUPPORT OF HIS RESISTANCE


TO DISMISS

COMES NOW the Plaintiff, Bryan Moore (“Moore” or “Plaintiff”), by and through his

attorneys, and for his Memorandum of Authorities in Support of his Resistance to Defendants’

Motion to Dismiss states as follows:

I. INTRODUCTION

Moore was hired by Defendant Al Darmaki and alter ego Dark Dunes to write a script for

a film entitled “Shadow Over Innsmouth” (hereinafter “The Film”). Moore was also hired by

Defendants to produce the Film. Moore disputes numerous allegations contained in Defendants’

Motion to Dismiss and supporting pleadings with respect to the Script, the purported termination

and the Film. Moore’s Resistance to the Motion to Dismiss, however, will focus on the narrow

issue before the Court which is whether Defendants have sufficient minimum contacts with the

state of Iowa to permit an assertion of jurisdiction over them and whether Moore has stated a

claim upon which relief may be granted.

As set forth in the Affidavits of Bryan Moore and Professor David Grant Walker, filed

contemporaneously herewith and incorporated herein by this reference, 90 percent of the Film

was to be shot in Iowa. Iowa resources were to be utilized for the Film including public and


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private Iowa locations, Iowa actors and community members, Iowa contractors, and Buena Vista

University resources. It was desirable to shoot the Film in Iowa because it was most cost-

effective to do so and it was Defendant Sultan Saeed Al Darmaki’s (hereinafter “Al Darmaki”)

desire to keep costs down. As set forth herein, Dark Dunes Productions a/k/a Dark Dunes Films

a/k/a Dark Dunes Cinema Productions (hereinafter “Dark Dunes”) and Defendant Al Darmaki

have sufficient contacts with the state of Iowa and with Sac County to subject them to the

jurisdiction of this Court. Furthermore, Defendants’ Motion to Dismiss Plaintiff’s claim of

piercing the corporate veil must also be denied.

II. BACKGROUND FACTS

On or about September 10, 2013, for valuable consideration, Plaintiff and Defendant Al

Darmaki’s alter ego Dark Dunes entered into a contract whereby Plaintiff was hired to outline

and draft a script of the Film and provide this no later than October 15, 2013 (hereinafter “the

Script Agreement”). See Ex. A. The Script Agreement provided that Plaintiff was to be paid

$10,000 for all rights to the outline and script upon commencement of the work. See Ex. A ¶ 2.

The sum of $10,000 was remitted to Plaintiff upon commencement of the work. Moore Aff. ¶ 4.

Thereafter, on September 30, 2013, for valuable consideration, Plaintiff and Defendant Al

Darmaki’s alter ego Dark Dunes entered into a second agreement for film production of the Film

which included “directing the film, co-producing the film from pre-production to shooting, post-

production, and working with fellow producers in the marketing, distribution strategy, inclusive

of duties and appearances at any and all film markets and film festivals” (hereinafter “the

Production Agreement”). See Ex. B.


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Subsequently, the parties moved forward with coordination and planning for the Film. As

set forth herein, in connection with the production of the Film, Defendants Dark Dunes and

Defendant Al Darmaki had significant contacts with the State of Iowa. Moore Aff. ¶ 1.

Approximately 90 percent of the Film was to be filmed in Iowa because it was most cost-

effective to do so. Moore Aff. ¶ 22. Iowa rates and production prices are extremely affordable

compared to rates in other areas of the country and certain Iowa property owners even agreed to

allow their properties to be used free of charge, which Defendant Al Darmaki was pleased to

learn. Moore Aff. ¶ 19. Defendant Al Darmaki expressed the fact that he wanted to pay “Iowa

prices” for the Film. Moore Aff. ¶ 20.

In October of 2013, Mallory O’Meara, an agent of Al Darmaki and alter ego Dark Dunes,

and Frank Woodward who was also hired by Defendants, traveled to Iowa and spent 7 days in

Iowa. Moore Aff. ¶ 21. During this trip the following work was conducted:

At least a dozen location scout videos were shot in Iowa at the following

locations: The historic Park Hotel in Sac City, the American Legion, 5th Street

Bridge in Sac City, countryside in Sac City, Wall Lake, and Lakeview, and the

Marsh Refinery in Sac City.1

Numerous location scout photographs were shot for potential Film

locations;

Met with local building and business owners to secure verbal permission

to shoot at their respective locations;

Met with local business owners about securing office and production

space;

Met with Liz Gilman of the Iowa Film Commission “Produce Iowa” to become

acquainted with her and learn about the supportive resources that might be

available from/through her office for utilization of local Iowa cast and crew for

the Film;

Conducted several script read-throughs;

1 Mr. Moore has retained copies of the scout videos and these can be provided to the Court upon request.


4

Proceeded with production duties with the explicit intent of

shooting the film in Iowa;

Prepared a Film budget;

Commenced possible script re-writes based on the anticipated budget;

Communicated every one to two days with Defendant Al Darmaki via telephone

and email to inform him of our progress to be ready to commence shooting for

the Film in May or June 2014 in and around Sac City, Iowa for approximately 3

weeks.

Moore Aff. ¶ 21.

In October of 2013 Al Darmaki authorized and provided funds for the purchase of a 1919

Ford Model T car for use in the Film. Moore Aff. ¶ 23; Ex. H. Because the Film was to be shot

in Iowa, the vehicle was delivered to Sac City, Iowa and arrived during the time Mallory

O’Meara and Frank Woodward were in Iowa. Moore Aff. ¶ 23. Agents of Defendants spent one

full week in Iowa and all of these tasks were completed in Iowa because it was understood that

90 percent of the Film was to be shot in Iowa. Moore Aff. ¶ 19, 21.

From October to December of 2013 the following tasks were performed related to the

Film to be shot in Iowa:

Marie Ramstead of Sac City, Iowa was consulted about renting her large dining

room to feed our extras and actors on the big crowd days and potentially for

general craft service for the entire Film shoot if the cost would be inexpensive;

Marissa Crimmins an accountant and bookkeeper in Sac City, Iowa was consulted

about serving as an accountant and bookkeeper to manage production costs for the

Film;

Use of the historic Park Hotel in Sac City, Iowa was confirmed;

Use of the American Legion Hall, in Sac City, Iowa was confirmed;

Use of the Basement of Cede’s Bark Bistro located in Sac City, Iowa was

confirmed;


5

Use of the Sac County Courthouse located in Sac City, Iowa was confirmed;

Use of the Historic Train Station located on Main Street in Breda, Iowa was

confirmed;

Arrangements were made for use of the Fire Station located in Sac City, Iowa.

Moore Aff. ¶ 24.

In the course of production activities, utilization of the State of Iowa Law Library, the

Boone Scenic Railroad, as well as other incidental locations in and around Sac City, Lake View,

Wall Lake, Rockwell City, Newell and Storm Lake, Iowa were explored. Moore Aff. ¶ 25. All

of the foregoing activities were in furtherance of performing the contracts with Al Darmaki and

his alter ego Dark Dunes and all were conducted in the state of Iowa.

On December 19, 2013 a meeting was held with members of the film and theater

department of Buena Vista College including David Grant Walker, Assistant Professor of

Theater and Director of Technical Productions. Moore Aff. ¶ 27; Walker Aff. ¶ 5. Mallory

O’Meara and Frank Woodward as representatives of Al Darmaki and his alter ego Dark Dunes

attended via video conference call knowing that the other participants were in the state of Iowa.

Moore Aff. ¶ 27; Walker Aff. ¶ 5 The purpose of the meeting was to discuss obtaining

significant assistance from Buena Vista University in the form of student and faculty actors from

Buena Vista, coordination and organization of actors from the local community, and use of Iowa

students as secondary production assistants, access to Buena Vista facilities to hold casting

auditions, render daily film takes and to provide housing in the dorms during the course of the

shoot, access to props, and media assistance. Moore Aff. ¶ 27; Walker Aff. ¶¶ 3, 6. As set forth

in his Affidavit, after the meeting, Professor David Walker understood that the Film was to be

shot in Sac City, Newell, and Storm Lake, Iowa for approximately 3-4 weeks with approximately

a one week shoot at an undetermined East Coast location. Walker Aff. ¶ 7. Based on the total


6

pages of the script which Professor Walker had reviewed prior to the meeting, his understanding

was that approximately 90 percent of the Film was to be shot in Iowa. Id. Following this

meeting Moore submitted a cast and crew list to the department members to obtain price quotes

for the Iowa-based cast and crew needed for the Film. Moore Aff. ¶ 27.

In December of 2013 Moore was provided with the sum of $350.00. Moore Aff. ¶ 29.

He was directed by Defendant Al Darmaki and his agent Mallory O’Meara by phone and email

to set up an Iowa limited liability company called Arkham Cinema, LLC for production of the

Film and so that production expenses for the Film did not have to be routed through individual

bank accounts. Moore Aff. ¶ 29. Arkham Cinema, LLC was formed on or about December 16,

2013, using those funds. Moore Aff. ¶ 29; Ex. I. Moore was also advised by Defendant Al

Darmaki and Mallory O’Meara, his agent, that the intention was to set up a bank account in

Iowa. Moore Aff. ¶ 31; Ex. D. In December of 2013 Defendant Al Darmaki also advised “we

will be sending the fees plus initial capital to keep the minimum balance of the bank.” Id.

As demonstrated herein, Defendants intended for 90 percent of the film to be shot in Iowa

and were integrally involved in the decisions related to shooting the Film in Iowa. Defendants

sought to avail themselves of the cost-effective resources the State of Iowa had to offer as well as

the laws of the State of Iowa.

III. DARK DUNES, THE ALTER EGO OF DEFENDANT AL DARMAKI, HAS

SUFFICIENT MINIMUM CONTACTS WITH THE STATE OF IOWA TO

SUBJECT IT TO THE JURISDICTION OF THIS COURT

Iowa Rule of Civil Procedure 1.306 provides that “[e]very 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.


7

P. 1.306 (2014). In the past, Iowa courts have considered five factors when determining whether

minimum contacts have been made, with the first three factors carrying the most weight:

1) the quantity of the contacts;

2) the nature and quality of the contacts;

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

4) the interest of the forum state; and

5) the convenience of the parties.

Ross v. First Savings Bank of Arlington, 675 N.W.2d 812, 816 (Iowa 2004); Cascade Lumber

Co. v. Edward Rose Bldg. Co., 596 N.W.2d 90, 92 (Iowa 1999); Al-Jon, Inc. v. Garden St. Iron

& Metal, Inc., 301 N.W.2d 709, 711 (Iowa 1981). Thus, the courts focus on “the relationship

among the defendant, the forum, and the litigation.” Addison Ins. Co. v. Knight, Hoppe, Kurnik

& Knight, L.L.C., 734 N.W.2d 473, 477 (Iowa 2007) (quoting Rush v. Savchuk, 444 U.S. 320,

327 (1980)).

More recently, however, Iowa courts have adopted a more modern and more succinct

test, evaluating whether “the defendant has purposefully directed his activities at residents of the

forum and whether the litigation results from alleged injuries that arise out of or relate to those

activities.” Ostrem v. Prideco Secure Loan Fund, LP, 841 N.W.2d 882, 893 (Iowa 2014) (citing

Capital Promotions, L.L.C. v. Don King Productions, Inc., 756 N.W.2d 828, 834 (Iowa 2006))

(internal quotation marks omitted); see also Addison Ins. Co., 734 N.W.2d at 476–77 (“A

defendant’s conduct relative to the forum state must be such that the defendant should reasonably

anticipate being haled into court there.”); Ross, 675 N.W.2d at 815 (citing Hanson v. Denckla,

357 U.S. 235, 253 (1958)). Minimum contacts, therefore, require “a sufficient connection

between the defendant and the forum state so as to make it fair and reasonable to require the


8

defendant to come to the state and defend the action.” Ross, 675 N.W.2d at 815 (citations

omitted).

Thus where the defendant “deliberately” has engaged in significant

activities within a State, or has created “continuing obligations”

between himself and residents of the forum, he manifestly has

availed himself of the privilege of conducting business there, and

because his activities are shielded by “the benefits and protections”

of the forum's laws it is presumptively not unreasonable to require

him to submit to the burdens of litigation in that forum as well.

Addison Ins. Co., 734 N.W.2d at 479 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,

480 (1985)).

Furthermore, Iowa courts, specifically in contract cases, will evaluate whether the subject

of the contract substantially impacts the forum State, the forum State’s interest in protecting

citizens of the state, and will consider that the party initiating the contract is typically the

aggressor and receives not only a profit, but the benefit and protection of the forum State’s laws.

Cascade Lumber, 596 N.W.2d at 93; Al-Jon, Inc., 301 N.W.2d at 711. In the context of a

contract, the minimum contacts test also looks to the entire transaction between the parties. Ross,

675 N.W.2d at 816. Therefore, courts will consider prior negotiations of the parties,

contemplated future consequences, terms of the contract, and the course of dealings of the

parties. Id.; see also OmniLingua, Inc. v. Great Golf Resorts of World, Inc., 500 N.W.2d 721,

724 (Iowa Ct. App. 1993). Courts also consider whether the relationship involved frequent

contacts by telephone and mail correspondence. Cascade Lumber, 596 N.W.2d at 93; see also

Addison Ins. Co., 734 N.W.2d at 477–78.

As demonstrated above and in the affidavits of Bryan Moore and Professor David

Walker, Defendant Dark Dunes as the alter ego of Al Darmaki purposefully directed and

deliberately engaged in significant activities in the State of Iowa. This included a 7 day visit to


9

Iowa by its agents Mallory O’Meara and Frank Woodward to engage in production activities as

set forth supra at pages 3 -4 and in the Affidavit of Bryan Moore at ¶ 21. This also included

attending a meeting via video conference with faculty members of Buena Vista University in

Storm Lake Iowa to discuss specific filming activities and opportunities in the State of Iowa.

See Walker Aff. at ¶ 5. Dark Dunes as the alter ego of Al Darmaki also created continuing

obligations with Plaintiff by virtue of two contracts and the agreement to produce the Film with

Plaintiff. See Exs. A, B. This relationship would have continued until at least July of 2015. See

Ex. B. Subsequently, significant contacts and arrangements were made with Iowa residents to

assist with shooting and production of the Film in Iowa. Moore Aff. ¶¶ 21, 24.

Defendant also sought to avail itself of the laws of the State of Iowa by directing that a

limited liability company be formed for production of the Film. Moore Aff. ¶ 29. The litigation

specifically arises out of Defendant’s conduct in the State relating to production of the Film.

Accordingly, it is not unreasonable to find this Court has jurisdiction over Defendant Dark

Dunes as the alter ego of Al Darmaki.

The five factor test previously utilized by Iowa courts and cited by Defendant also

supports a finding that this Court has jurisdiction over Defendant Dark Dunes as the alter ego of

Al Darmaki. The significant quantity of the contacts and the quality of the contacts are set forth

in the affidavits of Bryan Moore and Professor David Walker. Mallory O’Meara and Frank

Woodward traveled and spent 7 days conducting extensive production work on the Film in Iowa

at that time. See Supra at pages 3-4. Contrary to Defendants’ assertion, it cannot be said the

nature and quality of these contacts constituted a “limited occasion.” See Defendants’ Brief at p.

7. Payments were also remitted to Moore in Iowa and it was contemplated the relationship


10

between Moore and Defendant would have continued until at least July of 2015. See Moore Aff.

¶¶ 15, 18 ; Exs. B, E-G.

Notably, Iowa courts have ruled the number of personal visits to the forum state is not

significant. In Addison Ins. Co., the Iowa Supreme Court recognized that “[i]n this modern era,

business is typically conducted by telephone, facsimile, mail, and electronic mail.” 734 N.W.2d

at 477–78; see also Cascade Lumber, 596 N.W.2d at 93; Hager v. Doubletree, 440 N.W.2d 603,

607 (Iowa 1989) (stating “it is an inescapable fact of modern commercial life that a substantial

amount of business is transacted solely by mail and wire communications across state lines, thus

obviating the need for physical presence within a State in which business is conducted.” (quoting

Burger King, 471 U.S. at 476)); OmniLingua, Inc., 500 N.W.2d at 724.

The court in Cascade Lumber held that personal jurisdiction could be obtained over

Defendants because the initial contact between the parties had developed into much more and

involved multiple telephone conversations and frequent mail correspondence. Cascade Lumber,

596 N.W.2d at 92–93. There had been four months consisting of the parties making

arrangements over the phone for construction. Id. at 93. In Addison Ins. Co., the appellate court

also affirmed the district court’s holding that it had personal jurisdiction over defendants, finding

that although the defendant had made a relatively small number of personal visits to Iowa, the

defendant’s “contacts with Iowa were high quality communications which assisted Addison in

making critical decisions.” Id. at 478. Addison Ins. Co., 734 N.W.2d at 477-78. The court found

the contacts were not “random”, “fortuitous”, or “attenuated.” Id. at 478–79 (citing Burger King,

471 U.S. at 480 (“Jurisdiction is proper . . . where the contacts proximately result from actions by

the defendant himself that create a ‘substantial connection’ with the forum State.”)).


11

Similarly, in the instant case, there was a 7 day in-person visit during which time

significant activities related to the Film were undertaken. Moore Aff. ¶ 21. Subsequently, a

meeting was attended with representatives of Buena Vista University via video conference. See

Moore Aff. ¶ 27; Walker Aff ¶ 5. There were also telephone calls and emails regarding

production and shooting the Film in Iowa up to several times every day. Moore Aff. ¶ 32, 34.

Because the relationship between Moore and the Defendants involved production of a Film to be

shot in Iowa, the quality and nature of the relationship between the parties was anything but

“random,” “fortuitous,” or “attenuated.” See id. Defendants here engaged in high quality

communications with Moore which assisted in the production of the Film. See id. All of the

contacts between Defendants and Defendants’ agents and Moore were also specifically related to

the cause of action before the Court, namely, preparation for, production and shooting of the

Film and Defendants’ failure to fulfill their obligations to Moore.

The State of Iowa also has a significant interest in this case. As set forth in the Affidavits

of Bryan Moore and Professor David Walker, in furtherance of the Production Agreement for the

Film, Iowa residents were consulted and agreements were sought for use of Iowa locations for

the Film. Moore Aff. ¶ 21, 24, 27; Walker Aff. ¶¶ 3-8. Buena Vista University faculty members

were also consulted and were to provide resources for the Film. Id. Defendants also directed

Moore to form a limited liability company in the State of Iowa for the production of the Film.

Moore Aff. ¶ 29. Arkham Cinema, LLC was formed on or about December 16, 2013, and

constitutes further evidence of Defendants’ seeking to avail themselves of the law of the State of

Iowa. Ex. I.

Finally, the convenience of the parties also militates in favor of a finding that this Court

has jurisdiction because the parties have also developed significant connections to the State of


12

Iowa as set forth in the Affidavit of Bryan Moore. Additional witnesses are present in the State

of Iowa including local residents who agreed to permit use of their property for the Film and

faculty members of Buena Vista University who met with Plaintiff and Defendants’ agents. See

Moore Aff. ¶ 24. The original script that is the subject of this litigation is also located in Iowa.

Neither Defendant Al Darmaki nor Plaintiff reside in Los Angeles. Accordingly, Los Angeles

would not be a convenient venue for the parties.

Based on the foregoing, it is fair and reasonable to require Defendant Dark Dunes to

come to Iowa and defend this action as sufficient minimum contacts with the State of Iowa have

been established.

IV. DEFENDANT AL DARMAKI HAS SUFFICIENT MINIMUM CONTACTS

WITH THE STATE OF IOWA TO SUBJECT IT TO THE JURISDICTION OF

THIS COURT

Defendant Al Darmaki individually also has sufficient minimum contacts with Iowa to

confer jurisdiction on this Court. Because Defendant Dark Dunes is the alter ego of Defendant

Al Darmaki, any conduct alleged to have been undertaken on behalf of Dark Dunes, including by

and through his agents, must be imputed to Defendant Al Darmaki. Accordingly, Moore

incorporates by reference, as if fully set forth herein, the facts, arguments and authority set forth

in Sections III and V.

As recognized by the Iowa Supreme Court in Addison Ins. Co., “[i]n this modern era,

business is typically conducted by telephone, facsimile, mail, and electronic mail.” 734 N.W.2d

at 477–78; see also Cascade Lumber, 596 N.W.2d at 93; Hager v. Doubletree, 440 N.W.2d 603,

607 (Iowa 1989) (stating “it is an inescapable fact of modern commercial life that a substantial

amount of business is transacted solely by mail and wire communications across state lines, thus

obviating the need for physical presence within a State in which business is conducted.” (quoting


13

Burger King, 471 U.S. at 476)). Accordingly, while Defendant Al Darmaki never personally

came to Iowa, he engaged in significant and substantive email and telephone communication

with Moore, an Iowa resident located in Iowa, regarding the Film. Moore Aff. ¶ 32, 33. As set

forth in the Affidavit of Bryan Moore, Defendant Al Darmaki had personal input into the Script,

budget for the Film and paying “Iowa prices” for the film, selecting Iowa as the location of the

Film, the forming of the Iowa limited liability company, the purchase of the Model T car,

whether to use the Screen Actors Guild, specific actors, and specific special effects among other

items. Moore Aff. ¶ 33. Defendant Al Darmaki purposefully directed his activities related to the

Film at Moore who is a resident of Iowa and this litigation arises out of these activities related to

the Film. Defendant Al Darmaki also sought to avail himself of the laws of the State of Iowa by

directing Moore to form an Iowa limited liability company in Iowa for production of the Film.

Moore Aff. ¶ 29. For the reasons set forth above in Section III, no other forum is more

convenient for the parties.

Based on the foregoing, it is fair and reasonable to require Defendant Al Darmaki to

come to Iowa and defend this action as sufficient minimum contacts with the State of Iowa have

been established.

V. PLAINTIFF’S PETITION ASSERTS A PRIMA FACIA CLAIM FOR PIERCING

THE CORPORATE VEIL AND ALTERNATIVELY, PLAINTIFF HAS SOUGHT

TO AMEND ITS PETITION REGARDING THE PIERCING THE CORPORATE

VEIL CLAIM

Iowa courts have disregarded alleged corporate entities to hold individuals personally

liable for certain obligations. Benson v. Richardson, 537 N.W.2d 748, 761 (Iowa 1995)

(piercing the corporate veil and finding personal liability); Boyd v. Boyd & Boyd, Inc., 386

N.W.2d 540, 544 (Iowa Ct. App. 1986) (disregarding the corporate entity on principles of

equity); Team Central, Inc. v. Teamco, Inc., 271 N.W.2d 914, 923 (Iowa 1978) (finding that the


14

corporation was a mere sham); Briggs Transp. Co. v. Starr Sales Co., 262 N.W.2d 805, 809

(Iowa 1978) (finding that the trial court was justified in piercing the corporate veil to find

officers personally liable). Plaintiff’s Petition sets forth in paragraph 32 an allegation that “no

separate entity status was ever asserted or demonstrated [and] all dealings were conducted solely

with Defendant Al Darmaki and/or his designated agent in the United States, Mallory O’Meara.”

This factual allegation supports Moore’s assertion that Dark Dunes is a mere instrumentality and

alter ego of Defendant Al Darmaki and establishes a prima facie claim.

Iowa is a notice pleading state, and as such, nearly every case will survive a motion to

dismiss for failure to state a claim upon which relief may be granted. U.S. Bank v. Barbour, 770

N.W.2d 350, 353 (Iowa 2009); Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004);

Rieff v. Evans, 630 N.W.2d 278, 292 (Iowa 2001); Smith v. Smith, 513 N.W.2d 728, 730 (Iowa

1994); American Nat'l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986); Kleman v. Charles

City Police Dept., 373 N.W.2d 90, 93–94 (Iowa 1985); Cunha v. City of Algona, 334 N.W.2d

591, 596 (Iowa 1983); Schmidt v. Wilkinson, 340 N.W.2d 282, 283 (Iowa 1983); Citizens for

Washington Square v. City of Davenport, 277 N.W.2d 882, 883 (Iowa 1979); Nelson v. Case,

786 N.W.2d 268, *2 (Iowa Ct. App. 2010) (unpublished table opinion). The allegations

contained in Plaintiff’s Petition satisfy Iowa’s notice pleading requirements. Plaintiff is also

filing contemporaneously herewith a Motion to Amend his Petition to highlight additional facts

relevant to the piercing the corporate veil claim and which are set forth herein.

As set forth in the Affidavit of Bryan Moore and Plaintiff’s Proposed First Amended

Petition, the “corporate entity” Dark Dunes is alleged to be, is a mere sham and mere shell and

the alter ego of Defendant Al Darmaki because of intermingling of funds, failure to keep funding

sources and uses separate, inconsistency in references to Dark Dunes, undercapitalization and


15

insolvency, funds paid to Plaintiff that originated from several sources, and the failure to observe

corporate formalities.

Defendant Al Darmaki utilized multiple company names that differ from his alleged

incorporated entity, which constitutes a failure to follow corporate formalities. By way of

example, the two contracts entered into with Moore and attached to the Petition identify Dark

Dunes Productions not Dark Dunes Cinema Productions, the entity now claimed by Defendant

Al Darmaki. See Exs. A, B. The official Facebook page also references Dark Dunes Productions

and not Dark Dunes Cinema Productions. Moore Aff. ¶ 9. The purported notice of termination

dated March 2, 2014 is on letterhead referencing Dark Dunes Productions. Id.; Pet. Ex. C. The

Twitter page maintained by Sultan Saeed Al Darmaki states he is the owner of “Dark Dunes

Films” not Dark Dunes Cinema Productions. See Ex. C.

Despite utilizing different entity names, Defendant Al Darmaki now asserts he is the

manager and partner of Dark Dunes Cinema Productions, a limited liability company organized

under the laws of the United Arab Emirates. No formal records have been produced by

Defendants from the United Arab Emirates establishing that Dark Dunes Cinema Productions is

organized under the laws of that country, when the company was organized, or to establish

corporate formalities have been followed.

During the time Moore worked with Defendant Al Darmaki, he saw no evidence of Dark

Dunes being a formally or legally created limited liability company. Moore Aff. ¶ 12. The

source of email communication with Defendant Al Darmaki regarding the Film was his personal

email account at [email protected]. Ex. D. There was no reference to Dark Dunes

Cinema Productions or a corporate entity. Ex. D.


16

Defendant Al Darmaki also engaged in intermingling of funds and failed to keep separate

finances. Throughout the time Moore worked with Defendant Al Darmaki and his agent Mallory

O’Meara, Mallory O’Meara would reference needing to get money from Defendant Al Darmaki

without reference to Dark Dunes. Moore Aff. ¶ 15. Moore would also approach Defendant Al

Darmaki directly about obtaining funds for various aspects of the Film. Id.

On August 5, 2013 Moore received a wire payment in the amount of $3,985.00. This

represented funds for a bronze bust of HP Lovecraft that was to be a gift for Guillermo del Toro.

According to the attached bank records to bank records, the Originator Name is listed as “Saeed

Sultan Al Darmaki.” Ex. E. These funds were remitted by Defendant Al Darmaki individually

and not from Defendant Dark Dunes.

Between September 2013 and December of 2013 Moore received several wire payments.

The Originator of the Wires was Mallory O’Meara, agent of Defendant Al Darmaki. The

payments were for the following:

Date Payment Amount Description

9/17/13 $10,000 Script writing fee

10/8/13 $4,000 Producing/directing fee

10/11/13 $2,000 Model T purchase


11/7/13 $1,257 Location scout reimbursement

12/17/13 $1,200 Location scout reimbursement

12/23/13 $550 Attorney fees and limited liability

company filing fees, and gas for

LA location scout

Moore Aff. ¶ 17; Ex. F.


17

In January of 2014 Moore received two wire payments. The Originator of these wires

was Dark Dunes Cinema Productions. The payments were for the following:

Date Payment Amount Description



Moore Aff. ¶ 18; See Ex. G. The payment by at least three separate individuals and entities is

also evidence of Defendant Al Darmaki’s failure to follow corporate formalities and

intermingling of funds and failure to keep separate finances.

Based on the foregoing, this Court should deny Defendants’ Motion to Dismiss the claim

asserted against Defendant Al Darmaki by virtue of piercing the corporate veil and alter ego

doctrine.

IV. CONCLUSION

Based on the foregoing, and as set forth in the Affidavits of Bryan Moore and Professor

David Grant Walker, Plaintiff Bryan Moore respectfully requests the Defendants’ Motion to

Dismiss be denied in its entirety, that Plaintiff’s Motion for Leave to Amend his Petition be

granted, and prays for such other relief the Court deems just and equitable under the

circumstances.


18







Telephone: (515) 288-2500

Facsimile: (515) 243-0654


[email protected]


ORIGINAL FILED.

COPY TO:

Guy R. Cook

Laura N. Martino




Phone: 515/245-4300

Fax: 515/245-4452


DUNES PRODUCTIONS

PROOF OF SERVICE




US Mail FAX




#2457800


BRYAN MOORE,

Plaintiff,

vs.




Defendants.

)

)

)

)

)

)

)

)

)

)

)


PLAINTIFF’S RESISTANCE TO

DEFENDANTS’ MOTION TO

DISMISS

(ORAL ARGUMENT

REQUESTED)


for his Resistance to Defendants’ Motion to Dismiss states as follows:

1. On March 20, 2014 Plaintiff filed the above-captioned Petition.

2. On April 25, 2014 Defendants, by and through counsel, filed a Motion to Dismiss

Plaintiff’s Petition.

3. As set forth more fully in the supporting Memorandum of Authorities and

Affidavits of Bryan Moore and Professor David Grant Walker, Defendants’ Motion to Dismiss

should be denied in its entirety.

WHEREFORE, the Plaintiff respectfully requests the Defendants’ Motion to Dismiss be

denied and prays for such other relief the Court deems just and equitable under the

circumstances.


2







Telephone: (515) 288-2500

Facsimile: (515) 243-0654


[email protected]


ORIGINAL FILED.

COPY TO:

Guy R. Cook

Laura N. Martino




Phone: 515/245-4300

Fax: 515/245-4452


DUNES PRODUCTIONS

PROOF OF SERVICE




US Mail FAX




Notice ID: 2RCV31


BRYAN SCOTT MOORE ,

Plaintiff,

vs.

SULTAN SAEED AL DARMAKIDARK DUNES CINEMA PRODUCTIONS,

Defendant.

Case No. 02811 LACV019503

ORDER SETTING HEARING

The Defendants have filed a Motion to Dimss and the Plaintiff has filed a Motion to

Amend. A hearing will now be scheduled.

IT IS, THEREFORE, THE ORDER OF THE COURT as follows:

1. A Hearing is scheduled on 06/02/2014 at 11:00 AM at the Sac Co. Courthouse,

100 NW State St., Sac City, Iowa.

If you need assistance to participate in court due to a disability, call the disability coordinator at

641-421-0990. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942).

Disablity coordinators cannot provide legal advice.

1 of 2


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

DUNESType: ORDER SETTING HEARING

So Ordered

Electronically signed on 2014-05-16 14:10:59

2 of 2



BRYAN MOORE,


Plaintiff,

DEFENDANT’S REPLY TO PLAITNIFF’S RESITSANCE TO MOTION TO DISMISS


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 in reply to plaintiff’s resistance to their Motion to

Dismiss state:

1. In an effort to avoid dismissal of his claim, plaintiff attempts to raise additional

facts to support asserting jurisdiction over defendants. However, plaintiff’s efforts fall short as

the facts asserted relate only to the activities that the plaintiff himself undertook, and do not

support a finding that defendants have purposefully established minimal contacts in Iowa, and

defendants’ conduct and connection is such defendants should have reasonably anticipated being

haled into court in Iowa.

2. When a court considers “whether an assertion of personal jurisdiction passes

constitutional muster in the specific jurisdiction context, ‘the critical focus is on the relationship

among the defendant, the forum and the litigation.’ Meyers v. Kallestead, 476 N.W.2d 65, 67

(Iowa 1991). Due process is concerned with ‘the defendant's connection with the litigation in the

1


forum state, not the defendant's connection with residents in that state.’ In re Marriage of Crew,

549 N.W.2d 527, 530 (Iowa 1996). ‘The unilateral activity of those who claim some relationship

with a nonresident defendant cannot satisfy the requirement of contact with the forum State.’

Hanson v. Denckla, 357 U.S. 235, 253 (1958). These principles reflect, and are derived from, the

constitutional requirement for the defendants to purposefully avail themselves of the privilege of

conducting activities in the forum state.” Shams v. Hassan, 829 N.W.2d 848, 855 (Iowa 2013).

3. A “contract” is “ordinarily but an intermediate step serving to tie up prior

business negotiations with future consequences which themselves are the real object of the

business transaction. [citation omitted]. It is these factors—prior negotiations and contemplated

future consequences, along with the terms of the contract and the parties' actual course of

dealing—that must be evaluated in determining whether the defendant purposefully established

minimum contacts within the forum.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479

(1985).

4. Nothing in the parties’ production contract identifies Iowa as the place where the

contract is to be carried out. (Exhibit B to Plaintiff’s Petition). Instead, the only activities in the

state were conducted by plaintiff himself. Plaintiff took scout videos and photographs, yet no

contracts were entered, no money was exchanged and no locations were secured. (Affidavit of

Mallory O’Meara ¶ 6). It is undisputed that plaintiff also met with local business owners and

persons at the Iowa Film Commission although again no money was exchanged nor agreements

made. (Affidavit of Mallory O’Meara ¶ 7). It is also undisputed that plaintiff prepared re-writes

of the script and plaintiff established a limited liability company in the state of Iowa. (Affidavit

of Mallory O’Meara ¶ 8). However, neither defendant is a named member of the limited liability

company, nor did either defendant sign the document as the limited liability company’s

2


organizer. (Affidavit of Mallory O’Meara ¶ 8; Articles of Organization attached to Plaintiff’s

Resistance). These contacts that plaintiff alleges are relevant for purposes of establishing

personal jurisdiction were made by the plaintiff, not by defendants. Unilateral activity of the

plaintiff cannot satisfy the requirement of contact with the forum State for the defendants.

Hanson v. Denckla, 357 U.S. 235, 253 (1958). Further, the video conference with members of

the film and theater department at Buena Vista College concluded with a determination that the

group was not suitable for purposes of the film and would not be able to be utilized. (Affidavit of

Mallory O’Meara ¶ 11).

5. In the present case Defendant, Dark Dunes’ contacts with the state were limited to

(1) one in person visit by Mallory O’Meara and Frank Woodward; (2) one video conference with

Buena Vista College personnel; (3) e-mail and telephone correspondence between Mallory

O’Meara and plaintiff; and (4) e-mail and telephone correspondence between Al Darmaki and

plaintiff.

6. The plaintiff’s petition alleges breach of a production agreement. The activities

contemplated by the contract included directing the film, co-producing the film from pre-

production to shooting, post-production, participation in marketing distribution strategy and

appearances at film markets and film festivals. Pre-production activities generally include

making preparations for the shoot including but not limited to preparation of a storyboard with

the help of illustrators and concept artists, hiring of cast and film crew, selection of filming

locations, and building of sets. (Affidavit of Mallory O’Meara ¶ 12). These activities did not in

fact occur on this project. (Affidavit of Mallory O’Meara ¶ 13). No storyboard was prepared, no

cast or crew were hired, no contracts were signed nor money exchanged for filming locations and

no sets were built. (Affidavit of Mallory O’Meara ¶ 13). (Affidavit of Al Darmaki ¶ 25).

3


7. Cascade Lumber and Addison Ins.Co., cited in plaintiff’s resistance, are

distinguishable from the facts of the present case. In Cascade Lumber Co. the agreement was

performed in Iowa as trusses were in fact built here in the state. Cascade Lumber Co. v. Edward

Rose Bldg. Co., 596 N.W.2d 90, 93 (Iowa 1999). However, in the present case no activities as

contemplated by the parties’ production agreement, were in fact accomplished and no final

decision was in fact made to proceed with production in the state of Iowa. (Affidavit of Mallory

O’Meara ¶ 5,14). In Addison the court determined that it had jurisdiction over defendant as

“Knight voluntarily entered into a long-term relationship with Addison, which required

substantial, ongoing connections with the company's headquarters in Cedar Rapids.” Addison

Ins. Co. v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d 473, 478 (Iowa 2007). That

relationship involved a contract for services that lasted for ten years and “involved frequent

contacts by telephone and mailed correspondence, together with substantial oversight by the

[plaintiff's] home office in Iowa.” Id. at 478. In the present case the parties had only recently

entered into the production agreement, the script was never completed for the production

contract to begin and the activities that had occurred were done solely by plaintiff and with

minimal oversight by defendants. (Affidavit of Mallory O’Meara ¶ 13, 14).

8. Plaintiff has failed to establish facts sufficient to satisfy the requirement of contact

with the form state and its claims against Dark Dunes should be dismissed.

9. In addition, plaintiff has sought to amend his petition to assert additional factual

allegations to support his veil piercing claim. “Disregarding the entity's corporate form under

either the alter ego doctrine or the remedy of piercing the corporate veil is an extraordinary

measure that should be reserved for exceptional circumstances, see In re Ballstaedt, 606 N.W.2d

345, 349 (Iowa 2000); Grand Lodge of Iowa of the Indep. Order of Odd Fellows v. Osceola

4


Lodge No. 18, 178 N.W.2d 362, 368 (Iowa 1970), and the party seeking to do so bears the

burden of proof, see C. Mac. Chambers Co. v. Iowa Tae Kwon Do Acad., Inc., 412 N.W.2d 593,

598 (Iowa 1987) (en banc); HOK Sport, Inc. v. FC Des Moines, L.C., 495 F.3d 927, 935 (8th

Cir. 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)

(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.”)

10. Plaintiff’s amended petition still fails to set forth facts sufficient to support a

piercing the corporate veil theory. Plaintiff’s conclusory allegations in no way create a basis to

disregard the corporate separation between Dark Dunes and Al Darmaki.

11. As set forth in defendant’s motion shareholders are 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). Dark Dunes

Productions, the party named in the production agreement, is a limited liability company formed

under the laws of the United Arab Emirates. (See Exhibit A – Dark Dunes Organizational

documents). 12. Plaintiff focuses on Al Darmaki’s use of a shorted corporate name in

various places as evidence of failure to follow corporate formalities. The Revised Uniform

5


Limited Liability Company Act provides that “the failure of a limited liability company to

observe any particular formalities relating to the exercise of its powers or management of its

activities is not a ground for imposing liability on the members or managers for the debts,

obligations, or other liabilities of the company.” Iowa Code § 489.304. Ross v. Playle, 505

N.W.2d 515, 517 (Iowa App.1993) (corporation's failure to follow corporate formalities in

executing purchase orders did not warrant piercing corporate veil); Tannahill v. Aunspach, 538

N.W.2d 871, 874 (Iowa Ct. App. 1995)(Failure to follow corporate formalities in the ordinary

course of business does not necessarily justify piercing the corporate veil.) Ignorance of

corporate details does not itself demonstrate a lack of corporate formalities. Cass v. Sands, 2006

WL 229033 (Iowa Ct. App. 2006). Instead, as seen in the attached Exhibit A, it is clear that

corporate formalities were followed in the formation of the limited liability company under the

laws of the United Arab Emirates and that the party to the contract was the business entity and

not Al Darmaki personally. (Exhibit A; Exhibit B to Plaintiff’s Petition).

13. Further, plaintiff’s allegation that he received wire transfers originating from

various individuals is not evidence that the company was not adequately capitalized, it is

evidence that making wire transfers internationally is complicated. The pertinent question in

considering the adequacy of capitalization is whether the corporation's capital is sufficient for the

corporation to carry on its business. Id. Until termination of the parties’ agreement, plaintiff was

paid by Dark Dunes in full and on time. There is no evidence to support a finding that Dark

Dunes was not adequately capitalized.

14. The only activities in Iowa related to the film were the result of the fact that

Moore was a resident of the state and was writing the script at his residence. Moore was fully

paid under the script agreement. Instead his claims arise out of a production agreement. As set

6


forth above, the activities that a producer/director would normally take as part of a production

agreement had not yet occurred and any activities that had occurred were performed by Moore

himself. Defendants’ contacts with the state were so limited that it would not be fair or

reasonable to require the defendants to come to the state and defend the action.

WHEREFORE, defendants respectfully request that the Court grant their Motion to

Dismiss for Lack of Personal Jurisdiction 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 May 30, 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

7




#2468818


BRYAN MOORE,

Plaintiff,

vs.




Defendants.

)

)

)

)

)

)

)

)

)

)

)

)


PLAINTIFF’S

(1) MOTION TO STRIKE

DEFENDANTS’ REPLY TO

PLAINTIFF’S RESISTANCE TO

DEFENDANTS’ MOTION TO

DISMISS AND AFFIDAVIT OF

MALLORY O’MEARA

(2) REQUEST TO FILE

SURREPLY TO DEFENDANTS’

REPLY

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

for his Motion to Strike Defendants’ Reply to Plaintiff’s Resistance to Defendants’ Motion to

Dismiss and Affidavit of Mallory O’Meara and Motion to File Surreply states as follows:

1. On April 25, 2014 Defendants, by and through counsel, filed a Motion to Dismiss

Plaintiff’s Petition.

2. Pursuant to an obtained extension of time, Plaintiff filed his resistance to

Defendants’ Motion to Dismiss on May 15, 2014.

3. Pursuant to Iowa Rules of Civil Procedure 1.431(5) and 1.443(2), Defendants’

Reply to Plaintiff’s Motion to Dismiss was due within 10 days of the filing of Plaintiff’s

Resistance or on or before May 25, 2014. Due to the weekend and the holiday, Defendants’

resistance was to be filed by May 27, 2014.

4. Defendants did not timely file a Reply to Plaintiffs’ Resistance and accordingly, it

should be stricken. Plaintiff did not receive the Reply until after the close of business on Friday,

E-FILED 2014 JUN 02 8:51 AM SAC - CLERK OF DISTRICT COURT

2

May 30, 2014 for a hearing scheduled at 11:00 on Monday, June 2, 2014 and two hours from

Des Moines where Plaintiff’s and Defendants’ counsel are located.

5. Plaintiff would be prejudiced by the late filing of Defendants’ Reply and Affidavit

of Mallory O’Meara and accordingly, it should be stricken.

6. In the event Defendants’ Reply is not stricken, Plaintiff requests the opportunity

to file a surreply to respond to Defendants’ new allegation that no preproduction activities had

been performed on the Film as Plaintiff has additional facts that are relevant to rebut this

assertion.

WHEREFORE, the Plaintiff respectfully requests the Defendants’ Motion to Dismiss be

denied, that the Reply and Affidavit of Mallory O’Meara be stricken, and that if such Reply is

not stricken, that Plaintiff be permitted to file a surreply to address the matters set forth above,

and prays for such other relief the Court deems just and equitable under the circumstances.







Telephone: (515) 288-2500

Facsimile: (515) 243-0654


[email protected]


ORIGINAL FILED.


3

COPY TO:

Guy R. Cook

Laura N. Martino




Phone: 515/245-4300

Fax: 515/245-4452


DUNES PRODUCTIONS

PROOF OF SERVICE



their respective addresses disclosed on the pleadings on June 2, 2014 by:

US Mail FAX





Notice Id: 2CA004IN THE IOWA DISTRICT COURT FOR SAC COUNTY

BRYAN SCOTT MOORE , Plaintiff / Petitioner, vs. SULTAN SAEED AL DARMAKIDARK DUNES CINEMA PRODUCTIONS,

Defendant / Respondent.

Notice of Trial Setting Conference Case No: 02811 LACV019503

A scheduling conference will be held on 06/19/14 at 09:00 AM with Kellie Orres, as District CourtDesignee, pursuant to I.R.C.P 1.602. This conference shall be conducted by telephone conference call initiated by plaintiff's counsel. Kellie Orres may be contacted via telephone at: (515) 574-3752. 1. PARTICIPATION: All attorneys appearing in the case shall participate in this conference. A partywho is not represented by counsel shall contact the Court Administrator's office (at the above phonenumber) prior to the date and time of the conference call. 2. TRIAL SCHEDULING: A firm trial date shall be established in accordance with the SupremeCourt's time standards as provided by Chapter 23, Iowa Court Rules. NO CONTINUANCES SHALLBE GRANTED EXCEPT BY COURT ORDER, UPON GOOD CAUSE SHOWN. 3. SANCTIONS: If a party or attorney fails to participate in the scheduling conference or issubstantially unprepared to participate in the conference, the Court may impose appropriatesanctions, including reasonable expenses and attorney fees. (I.R.C.P 1.602(5)). /s/ Kellie Orres --------------------------------------- Designee of the Court Clerk to provide copies ornotice of document to attorneys


of record and parties appearingpro se.


#2470803


BRYAN MOORE,

Plaintiff,

vs.




Defendants.

)

)

)

)

)

)

)

)

)

)

)

)


PLAINTIFF’S SUR-REPLY IN

SUPPORT OF HIS RESISTANCE


TO DISMISS

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

for his Sur-Reply in Support of his Resistance to Defendants’ Motion to Dismiss states as

follows:

1. In their Reply, Defendants’ allege the only activities in the state of Iowa were

conducted by Plaintiff himself. Reply at p. 2. As set forth in the Affidavit of Bryan Moore filed

in support of his Resistance to Defendants’ Motion to Dismiss that is simply not the case. There

was a seven day visit to the state of Iowa filled with preproduction activities conducted by

Defendant Al Darmaki’s agents, attendance at a video conference that originated in Iowa and

countless emails and telephone communications with Defendant Al Darmaki and his agents. See

Affidavit of Bryan Moore.

2. Defendants also allege that “no contracts were entered, no money was exchanged

and no locations were secured” and for the first time in their Reply even go so far as to assert that

no activities contemplated by the parties’ production agreement were in fact accomplished.

Reply at p. 2, 4; Declaration of Mallory O’Meara. However, as set forth in the original Bryan

Moore Affidavit as well as the Supplemental Affidavit of Bryan Moore, that is simply not the


2

case. A copy of Moore’s Supplemental Affidavit is attached hereto as Exhibit 1 and

incorporated herein by this reference.

3. In support of the Motion to Dismiss, Defendants have provided what Defendants

purport to be organizational documents from the United Arab Emirates. However, Defendants

have provided no translation or authentication of these documents, nor any legal authority to

support an assertion that Dark Dunes was a properly formed legal entity. Based on the

foregoing, the Court should disregard the corporate documents designated as Exhibit A to

Defendants’ Reply.

WHEREFORE, as set forth in Plaintiff’s Resistance to the Motion to Dismiss, this Sur-

Reply and the Affdavits of Bryan Moore and Professor David Grant Walker, Plaintiff Bryan

Moore respectfully requests the Defendants’ Motion to Dismiss be denied in its entirety, and

prays for such other relief the Court deems just and equitable under the circumstances.







Telephone: (515) 288-2500

Facsimile: (515) 243-0654


[email protected]


ORIGINAL FILED.


3

COPY TO:

Guy R. Cook

Laura N. Martino




Phone: 515/245-4300

Fax: 515/245-4452


DUNES PRODUCTIONS

PROOF OF SERVICE



their respective addresses disclosed on the pleadings on June 9, 2014 by:

US Mail FAX





Notice Id: 2CA010 IOWA DISTRICT COURT FOR SAC COUNTY

BRYAN SCOTT MOORE Plaintiff(s), vs. SULTAN SAEED AL DARMAKIDARK DUNES CINEMA PRODUCTIONS

Defendant(s).

Trial Scheduling Order

Case No : 02811 LACV019503 Date Petition Filed : 03/20/14 Case Type : Civil Trial Type : Jury Expected Length of Trial : 3 Days The amount in controversy exceeds $10,000 : Yes Nature of Case : Contract

APPEARANCES:Plaintiff(s)/Petitioner(s) : Tara HallDefendant(s)/Respondent(s) : Laura Martino IT IS SO ORDERED: TRIAL : Trial of this case is set for trial on 03/24/15 at 09:00 AM in the District Court in the courthouseof the above-named county. PRE-TRIAL CONFERENCE (Check one)

A pre-trial conference shall be held on The conference may be held telephonically with priorapproval of the court.

A pre-trial conference shall be held upon request. NEW PARTIES. No new parties may be added later than 180 days before trial or . TRANSCRIPTS AND RECORDS. All required agency records and prior criminal transcipts shall befiled within 30 days of the date of this order or by . PLEADINGS. Pleadings shall be closed 60 days before trial or .

E-FILED 2014 JUN 18 1:18 PM SAC - CLERK OF DISTRICT COURT

DISCOVERY. All written discovery shall be served no later than 90 days before trial. All depositionsshall be completed no later than 60 days before trial. Or, all discovery shall be completed by . EXPERT WITNESS.a. A party who intends to call an expert witness, including rebuttal expert witnesses, shall certfiy tothe court and all other parties the expert's name, subject matter of expertise and qualifications, withinthe following time period, unless the Iowa Code requires an earlier designation (See, e.g. Iowa Code668.11): (1) Plaintiff: 210 days before trial or . (2) Defendant/Third Party Plaintiff: 150 days before trial or . (3) Third-Party Defendant/Others/Rebuttal: 90 days before trial or . b. This section does not apply to court appointed experts. (The pleadings, discovery, and expert witness deadlines may be amended, without further leave of court, byfiling a Stipulated Amendment to Scheduling Order with the clerk listing the dates agreed upon and signed by allcounsel and self-represented litigants. Such an Amendment shall not serve as a basis for a continuance of thetrial date or affect the date for pre-trial submissions.) PRE-TRIAL SUBMISSIONS. At least seven (7) days before trial, counsel for the parties and self-represented litigants shall: a. File a witness and exhibit list with the clerk, serve a copy on opposing counsel and self-represented litigants and exchange exhibits. Rules governing exhibits and exhibit lists: (1) Plaintiff shall use numbers and Defendant shall use letters. Pre-trial exhibit lists shall identifyeach exhibit by letter or number and description. Exhibits shall be marked by counsel before trial. (2) Immediately before commencement of trial, the court shall be provided with a bench copy,and the reporter with a second copy, of the final exhibit list, for use in recording the admission ofevidence. (3) In non-jury cases, immediately before commencement of trial, the court shall be provided witha bench copy of all exhibits identified on the exhibit lists. (4) Within 5 days after the filing of an exhibit list, counsel and self-represented litigants shall filewith the clerk, and serve on each party, any identification, authentication, and foundation objections tothe exhibits listed; otherwise such objections shall be deem WAIVED for trial purposes. b. File with the clerk, and deliver to the Trial Judge, Motions in Limine, with supporting legalauthority. c. File with the clerk, and deliver to the Trial Judge, all proposed jury instructions in a form to bepresented to the jury, including a statement of the case, the stock jury instruction numbers and verdictforms. (The court shall be provided the instructions in written form and by either E-mail attachment;USB Thumb drive download; or on a CD-ROM with MS Word compatible format.) d. Deliver to the Trial Judge and opposing counsel/self-represented litigants a concise trial briefaddressing factual, legal and evidentiary issues, with a citation to legal authorities.


MOTIONS. All motions, including motions for summary judgment and except motions in limine, shallbe filed with the clerk of court's office at least 60 days before trial, with copies to the assigned judge. SETTLEMENT CONFERENCE. (Check one)

A settlement conference shall be held on . All parties with authority to settle must be present. A settlement conference may be held upon request.

SETTLEMENTS. The parties shall have the responsibility of immediately notifying the courtadministrator of settlement. LATE SETTLEMENT FEES. Late settlement fees under Iowa Rule of Civil Procedure 1.909 areapplicable. CONTINUANCES. Continuances are discouraged and shall only be granted for good cause. Motions to continue are governed by Iowa Rule of Civil Procedure 1.910. In the event the trial date iscontinued, all time deadlines in this order and stipulated amendments shall remain in effect relative tothe new trial date unless the court approves new deadlines. NOTICE. A failure to comply with any of the provisions of this order or an amendment to scheduling ordermay result in sanctions being imposed by the court pursuant to Iowa Rule of Civil Procedure 1.602(5) includinglimitation and exclusion of evidence and witnesses and payment of costs or attorney fees. The original ofthis order shall be filed at the time the trial date is obtained. The court shall resolve disputes regarding oralagreements on scheduling by reference to this scheduling order or any written amendments to this order. Dated : 06/18/14 /s/ Kellie Orres ________________________________ Judge of the District Court/Court Designee Original filed with the Clerk of CourtCopies to: counsel of record/self-represented litigants/assigned judge.


1

Iowa District Court for Sac County

Bryan Moore, :

Plaintiff, :

: LACV 019503

Vs. :

: Order

Sultan Saeed Al Darmaki, :

Dark Dunes Productions, :

a/k/a Dark Dunes Cinema Productions, :

Defendants. :

On June 2, 2014, a hearing was held in regard to the defendants’ motion to dismiss the

plaintiff’s petition for lack of jurisdiction. The plaintiff was represented by Ms. Tara Hall. The

defendants were represented by Ms. Laura Martino.

Facts

The plaintiff is a resident of Sac County, Iowa. The defendant Sultan Saeed Al Darmaki

(Al Damarki) is a resident of Abu Dhabi, United Arab Emirates. The defendant Dark Dunes

Productions (Dark Dunes) is a limited liability company organized under the laws of the United

Arab Emirates, with its principal place of business in Abu Dhabi, United Arab Emirates. Al

Darmaki states that he is a manager and partner of Dark Dunes.


2

Plaintiff alleges that on or about September 10, 2013, he entered into a contract (script

agreement) with Dark Dunes wherein, for valuable consideration, plaintiff would outline and

draft a script for a motion picture entitled “The Shadow Over Innsmouth” (Film). Drafting of the

contract and work on that script took place in Iowa. On September 30, 2013, plaintiff and Dark

Dunes entered into a second contract (production agreement), again prepared in Iowa, wherein,

for valuable consideration, plaintiff would direct and co-produce the film and assist with

marketing. Plaintiff alleges that the vast majority of the film production was to take place in

Iowa. He further alleges that he and other employees of Dark Dunes spent several days

“conducting extensive production work on the film in Iowa.” He met with the Director of

Theatre at Buena Vista University and employees of Dark Dunes appeared by video

teleconference to discuss significant contributions by that department to the production of the

film in Iowa. Plaintiff further alleges that Dark Dunes is merely the alter ego of Al Darmaki. He

states that he received payment for some of his work directly from Al Darmaki as opposed to

Dark Dunes. He further alleges that Al Darmaki has used various names for the corporation.

The petition alleges that defendants unilaterally terminated the production agreement without

good cause and that plaintiff has suffered damages as a result. Plaintiff argues that Dark Dunes

is a sham corporation and that Al Darmaki should be held personally liable as well as the

corporation.

Defendants argue that there has been insufficient contact with Iowa to afford jurisdiction

in Iowa for this litigation.

Conclusion


3

The law in regard to motions to dismiss for lack of personal jurisdiction is well settled

and need not be overly addressed here. “A motion to dismiss admits the well-pleaded facts in the

petition, but not the conclusions.” Ostrem v. Prideco Secure Loan Fund, LP, 841 N.W.2d 882,

891 (Iowa 2014). “The touchstone of the due-process analysis remains whether the defendant

has sufficient minimum contacts with [the forum state] such that maintenance of the suit does not

offend traditional notions of fair play and substantial justice.” Id. at 891. The courts now follow

a two criteria test to determine whether a nonresident has sufficient minimum contacts with

Iowa. Those criteria include: (1) whether defendant has purposefully directed his activities at

residents of the forum, and (2) whether the litigation results from alleged injuries that arise out of

or relate to those activities. Id. at 893.

Here, preparation in Iowa of the contract in dispute does not, standing alone, convince

this court that Iowa is the proper forum for this litigation. Other allegations, however, supported

by affidavits, that work on the production progressed in Iowa, that defendant supported

production in Iowa due to lower costs, and that it was anticipated that up to 90% of the film’s

ultimate production would occur in Iowa, are sufficient to reach the conclusion that minimum

contacts with Iowa existed and that fair play warrants a finding that Iowa is an appropriate

forum. This court further finds the motion to dismiss Al Damarki from this litigation to be

premature given this ruling on jurisdiction. Determining whether the plaintiff can pierce the

corporate veil must be an issue left to another day.

Order

It Is Ordered that defendant’s motion to dismiss for lack of personal jurisdiction is

denied.


4

Copies to: Counsel of Record


State of Iowa Courts

Type: OTHER ORDER

Case Number Case TitleLACV019503 BRYAN MOORE V. SULTAN SAEED AL DARMAKI, DARK

DUNES

So Ordered

Electronically signed on 2014-06-23 09:43:59 page 5 of 5



BRYAN MOORE,


Plaintiff,

DEFENDANTS’ ANSWER TO FIRST

AMENDED PETITION, AFFIRMATIVE DEFENSES AND JURY DEMAND


COME NOW Defendants, Dark Dunes Productions (hereinafter “Dark Dunes”) and

Sultan Saeed Al Darmaki (“Al Darmaki”), by and through the undersigned attorneys, and for

their Answer to Plaintiff’s Petition, state as follows:

1. Defendants admit the allegations of paragraph 1.

2. Defendants admit that Defendant Al Darmaki is a resident of Abu Dhabi, United

Arab Emirates. The remainder of the allegations in paragraph 2 are denied.

3. Defendants admit that Dark Dunes is a limited liability company formed under the

laws of Abu Dhabi, United Arab Emirates with its principal place of business located at the Al

Darmaki Building, Sheikh Rashed Road, P.O. Box 323, Abu Dhabi, United Arab Emirates.

Defendant denies the remaining allegations of paragraph 3.

4. This is a jurisdictional question for the court to address and to the extent an

answer is required paragraph 4 is denied.


6. Defendants deny the allegations of paragraph 6.


E-FILED 2014 JUL 21 1:41 PM SAC - CLERK OF DISTRICT COURT

8. Defendants state that the contract speaks for itself and deny any allegations

contained in paragraph 7 of the Petition inconsistent with the contract.

9. Defendants admit the allegations of paragraph 9

10. Defendants admit that on or about September 30, 2013, plaintiff and Dark Dunes

entered into a contract. Defendants further state that the contract attached as Exhibit B is

incomplete. It is further admitted that the language of the agreement is accurately set forth. Any

remaining allegations in paragraph 10 are denied.

11. Defendants admit that the language of paragraph 2 of the agreement is accurately

set forth.


set forth. The narrative which follows the actual language of paragraph 5 is denied.





17. The narrative which precedes the actual language of the termination notice is

denied. It is admitted that the language of the termination notice is accurately set forth.







2













35. Defendants deny the allegations of paragraph 35








WHEREFORE, Defendants pray that Plaintiff’s Petition be dismissed and costs assessed

to the Plaintiff.

3


AFFIRMATIVE DEFENSES

1. Lack of personal jurisdiction.

2. Failure to Fulfill Conditions Precedent. Plaintiff failed to fulfill conditions

precedent which are contained in the contract existing between the Plaintiff and Defendant.

Consequently, Plaintiff’s Petition should be dismissed.

JURY DEMAND

COME NOW Defendants, by and through the undersigned attorneys, and hereby demand

trial by jury of all issues triable.

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 July 21, 2014, by U. S. Mail. /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 DEFENDANTS

4





BRYAN MOORE,


Plaintiff,

DEFENDANTS’ ANSWER TO FIRST

AMENDED PETITION, AFFIRMATIVE DEFENSES AND JURY DEMAND


COME NOW Defendants, Dark Dunes Productions (hereinafter “Dark Dunes”) and

Sultan Saeed Al Darmaki (“Al Darmaki”), by and through the undersigned attorneys, and for

their Answer to Plaintiff’s Petition, state as follows:


2. Defendants admit that Defendant Al Darmaki is a resident of Abu Dhabi, United

Arab Emirates. The remainder of the allegations in paragraph 2 are denied.

3. Defendants admit that Dark Dunes is a limited liability company formed under the

laws of Abu Dhabi, United Arab Emirates with its principal place of business located at the Al

Darmaki Building, Sheikh Rashed Road, P.O. Box 323, Abu Dhabi, United Arab Emirates.

Defendant denies the remaining allegations of paragraph 3.

4. This is a jurisdictional question for the court to address and to the extent an

answer is required paragraph 4 is denied.





8. Defendants state that the contract speaks for itself and deny any allegations

contained in paragraph 7 of the Petition inconsistent with the contract.

9. Defendants admit the allegations of paragraph 9

10. Defendants admit that on or about September 30, 2013, plaintiff and Dark Dunes

entered into a contract. Defendants further state that the contract attached as Exhibit B is

incomplete. It is further admitted that the language of the agreement is accurately set forth. Any

remaining allegations in paragraph 10 are denied.


set forth.


set forth. The narrative which follows the actual language of paragraph 5 is denied.





17. The narrative which precedes the actual language of the termination notice is

denied. It is admitted that the language of the termination notice is accurately set forth.







2













35. Defendants deny the allegations of paragraph 35








WHEREFORE, Defendants pray that Plaintiff’s Petition be dismissed and costs assessed

to the Plaintiff.

3


AFFIRMATIVE DEFENSES

1. Lack of personal jurisdiction.

2. Failure to Fulfill Conditions Precedent. Plaintiff failed to fulfill conditions

precedent which are contained in the contract existing between the Plaintiff and Defendant.

Consequently, Plaintiff’s Petition should be dismissed.

JURY DEMAND

COME NOW Defendants, by and through the undersigned attorneys, and hereby demand

trial by jury of all issues triable.

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 July 21, 2014, by U. S. Mail. /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


4





BRYAN MOORE,


Plaintiff,

NOTICE OF SERVING DISCOVERY

REQUESTS

v.



DUNES CINEMA PRODUCTIONS,

Defendants.

COME NOW the defendants, Sultan Saeed Al Darmaki and Dark Dunes Cinema

Productions, and hereby provides notice of service of the following discovery documents:

1. Defendants’ First Set of Requests for Production to Plaintiff.

2. Defendants’ First Set of Interrogatories to 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

September 30, 2014, by U. S. Mail.

/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


E-FILED 2014 SEP 30 12:51 PM SAC - CLERK OF DISTRICT COURT



E-FILED 2014 OCT 29 9:10 AM SAC - CLERK OF DISTRICT COURT

IOWA DISTRICT COURT FOR SAC COUNTY

BRYAN MOORE, Plaintiff, vs. SULTAN SAEED AL DARMAKI, DARK DUNES PRODUCTIONS, a/k/a DARK DUNES CINEMA PRODUCTIONS, Defendants.

Case No. LACV019503

ORDER

Pursuant to an agreement reached by counsel representing the Plaintiff and the

Defendant, the Court amends the June 18, 2014 Trial Scheduling Order as follows:

1. All written discovery shall be served no later than December 29, 2014.

2. All discovery and pleadings shall close on January 28, 2015.

All other deadlines contained in the June 18, 2014 Trial Scheduling Order shall

remain in effect.

Clerk to furnish copies to: Counsel of Record Unrepresented Parties

E-FILED 2014 OCT 30 2:08 PM SAC - CLERK OF DISTRICT COURT

State of Iowa Courts

Type: OTHER ORDER

Case Number Case TitleLACV019503 BRYAN MOORE V. SULTAN SAEED AL DARMAKI, DARK

DUNES

So Ordered

Electronically signed on 2014-10-30 14:08:03 page 2 of 2

E-FILED 2014 OCT 30 2:08 PM SAC - CLERK OF DISTRICT COURT

#2538796


BRYAN MOORE,

Plaintiff,

vs.




Defendants.

)

)

)

)

)

)

)

)

)

)

)


DISMISSAL WITH

PREJUDICE

COMES NOW the Plaintiff, Bryan Moore, and hereby dismisses with prejudice all

claims asserted against the Defendant, Sultan Saeed Al Darmaki and Dark Dunes Productions

a/k/a Dark Dunes Cinema Productions, in the above-matter.

______/s/ Tara Z. Hall______________________






Telephone: (515) 288-2500

Facsimile: (515) 243-0654


[email protected]


COPY TO:

Guy R. Cook

Laura N. Martino




Phone: 515/245-4300

Fax: 515/245-4452

ATTORNEYS FOR DEFENDANTS

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 January 19, 2015 by:

US Mail FAX


Federal Express Other: EDMS


E-FILED 2015 JAN 19 9:38 AM SAC - CLERK OF DISTRICT COURT

lacv019503 - contract dispute for movie script dismissed.pdf

Documents