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ATL Photography (Sherrouse) v. Ian Marshall Realty: Doc 7-1 - Defendant Memo of Law in Support of Motion to Dismiss

ATL Photography (Sherrouse) v. Ian Marshall Realty: Doc 7-1 - Defendant Memo of Law in Support of Motion to Dismiss

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ATL Photography (Jennifer Sherrouse) v. Ian Marshall Realty: Doc 7-1 - Defendant Memo of Law in Support of Motion to Dismiss
ATL Photography (Jennifer Sherrouse) v. Ian Marshall Realty: Doc 7-1 - Defendant Memo of Law in Support of Motion to Dismiss

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Categories:Business/Law
Published by: ExtortionLetterInfo.com on Oct 15, 2013
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05/14/2014

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIAATLANTA DIVISION
ATLANTA PHOTOGRAPHY, LLC ::Plaintiff, ::v. : Civil Action No.:: 1:13-cv-02330-ATIAN MARSHALL REALTY, INC., :IAN MARSHALL, and ALBERT JONES, ::
JURY TRIAL DEMANDED
Defendants. ::
DEFENDANT IAN MARSHALL’S MEMORANDUM OF LAW INSUPPORT OF HIS MOTION TO DISMISSCOUNTS 1 AND 2 OF PLAINTIFF’S COMPLAINTI.
 
INTRODUCTION.
In its Complaint, Plaintiff fails to allege anything more than threadbare legalconclusions in its attempt to hold a shareholder liable for the alleged acts of acorporation’s independent contractor. The Complaint is entirely devoid of anyfactual allegations suggesting that Defendant IMR’s corporate veil should be pierced, and that Defendant IMR’s liability be imputed to Defendant Marshall.Tellingly, in the 17 pages of the Complaint’s factual background, Plaintiff makes asingle, passing reference to Ian Marshall. As no factual or legal basis is presentedagainst Defendant Marshall, the First and Second Causes of Action must bedismissed as to Defendant Marshall.
Case 1:13-cv-02330-AT Document 7-1 Filed 08/28/13 Page 1 of 11
 
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II.
 
STATEMENT OF FACTS.
Although Defendant Marshall does not admit the allegations of theComplaint or agree with Plaintiff’s characterization of the facts, the followingallegations are gleaned from Plaintiff’s Complaint and may be taken as true for  purposes of this Motion under the Supreme Court's decisions in Ashcroft v. Iqbal,556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic Corp. v.Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007).
A. Parties.
Jennifer Sherrouse is licensed as a real estate agent in the State of Georgia.(Doc. 1 at ¶ 8). Jennifer Sherrouse takes photographs of various condominiums,waits for other real estate agents to use the photographs, and then directly or indirectly sues such real estate agents for a profit. See generally, Doc. 1. IanMarshall Realty, Inc. (“Defendant IMR”) is a corporation incorporated and“existing under the laws of the State of Georgia.” (Id. at ¶ 2). Albert Jones(“Defendant Jones”) is a licensed real estate agent who was engaged by DefendantIMR as an independent contractor. Id. at ¶ 4. Defendant Marshall, however, wasmerely the owner and sole shareholder of Defendant IMR. Id. ¶ at 3.
B. Photographs.
Jennifer Sherrouse took various photographs of real estate and publishedthem on her website. Id. at ¶¶ 8 – 10. Jennifer Sherrouse later discovered that her 
Case 1:13-cv-02330-AT Document 7-1 Filed 08/28/13 Page 2 of 11
 
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 photographs had been published by Defendant Jones on “[his] website athttp://buyandsellatl.com.” Id. at ¶ 13 (pg. 5 – 8). In particular, each of thewebpages attached as pages 6, 7 and 8 to Plaintiff’s Complaint indicates that “Buy& Sell ATL was developed by Albert Jones, in affiliation with Ian MarshallRealty.” Id. No mention is made of or to Defendant Marshall in his personalcapacity. Id. The webpages further show that these photographs were uploaded to aWord Press blog. Id. at ¶ 18. Jennifer Sherrouse then sold the copyrighted photographs to Plaintiff, who in turned sued Defendant Jones, Defendant IMR andDefendant Marshall. Id. at ¶ 23.
III.
 
LEGAL STANDARD.A. Motion to Dismiss.
Rule 12(b)(6) provides that a court shall dismiss a complaint for “failure tostate a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Tosurvive a motion to dismiss, a complaint must contain sufficient factual matter,accepted as true, to ‘state a claim to relief that is plausible on its face.’ “Ashcroft v.Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550U.S. 544, 570 (2007)); Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir.2010). Dismissal of a complaint is appropriate where it is clear that a plaintiff cannot state facts that “raise a right of relief above the speculative level on theassumption that all of the complaint’s allegations are true.” Twombly, 550 U.S. at
Case 1:13-cv-02330-AT Document 7-1 Filed 08/28/13 Page 3 of 11

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