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

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

E-FILED 2014 APR 08 2:18 PM SAC - CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT FOR SAC COUNTY

BRYAN MOORE,

CASE NO. LACV 019503
Plaintiff,

MOTION TO DISMISS
v.

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

Defendants.

COME NOW the Defendants, Sultan Saeed al Darmaki and Dark Dunes Productions,
pursuant to Iowa R. Civ. P. 1.421, and hereby moves that the court dismiss this action in its
entirety. Pursuant to Iowa Rule of Civil Procedure 1.431(3), defendants have filed a Brief in
Support of their Motion to Dismiss and a Declaration by Sultan Saeed Al Darmaki, and by this
reference incorporate said documents herein.
WHEREFORE, defendants respectfully requests the Court grant their Motion to Dismiss
regarding all claims against them in this case and that the costs of this action be assessed against
Plaintiff.
Certificate of Service
The undersigned certifies that the foregoing instrument was
served upon the parties to this action by serving a copy
upon each of the attorneys listed as receiving notice on
April 24, 2014.

/s/ Laura N. Martino

Copy to:

J onathan C. Wilson
Tara Z. Hall
Davis, Brown, Koehn, Shorts & Roberts, P.C.
215 10
th
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
Phone: 515/245-4300
Fax: 515/245-4452

gcook@grefesidney.com
lmartino@grefesidney.com

ATTORNEYS FOR DEFENDANT DARK
DUNES PRODUCTIONS
2


BRYAN MOORE,

Plaintiff,

BRIEF IN SUPPORT OF MOTION TO
DISMISS
v.

DUNES CINEMA PRODUCTIONS,

Defendants.

COME NOW the defendants, Sultan Saeed Al Darmaki (hereinafter Al Darmaki) and
Dark Dunes Cinema Productions (hereinafter Dark Dunes), pursuant to Iowa Rules of Civil
Procedure 1.421(1)(b) and 1.431(3), and hereby submit their brief in support of their Motion to
Dismiss.
I. BACKGROUND
Plaintiffs 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, Plaintiffs 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 Darmakis 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
2

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
follows
1
:
1. A contract for the preparation of an outline, first draft and breakdown motion
picture script (Exhibit A to Moores Petition; hereinafter Script Agreement);
2. A contract for the directing and production of the film (Exhibit B to Moores
Petition; hereinafter the Production Agreement); and
3. A non-disclosure agreement.

(Declaration 10).

Pursuant to the Script Agreement, dated September 10, 2013, upon Moores
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 Moores Petition).
1
A fourth contract, that was never written or executed, was contemplated for the funding
to shoot the Film.

3

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
Moores 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 Moores Petition). The contract further provided that in the
instance of Moores 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 OMeara 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
4

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 J anuary 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
J URISDICTION 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:
5

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-J on, 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.
6

The constitutional touchstone in determining jurisdiction is whether defendant has
purposefully established minimal contacts in the form state, and defendants 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
7

consequently, did his work in the state, that is simply not enough to assert jurisdiction over Dark
Dunes.
2. Quality of Contacts
A plaintiffs contract with a nonresident party alone does not automatically establish
sufficient minimum contacts in plaintiffs forum state. OmniLingua, Inc., 500 N.W. 2d at 724.
Where jurisdiction is alleged on the basis of a contract, Iowa Courts 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).

8

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 plaintiffs petition should be dismissed
for lack of personal jurisdiction.
B. THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF PERSONAL
J URISDICTION OVER SULTAN SAEED AL DARMAKI
The court likewise lacks sufficient minimum contacts with Al Darmaki to confer personal
jurisdiction. Al Darmakis 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
9

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)
10

(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, Plaintiffs
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
Plaintiffs 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


By: /s/ Guy R. Cook
Guy R. Cook, AT0001623

By: /s/ Laura N. Martino
Laura N. Martino, AT0005043

11


Copy to:

J onathan C. Wilson
Tara Z. Hall
Davis, Brown, Koehn, Shorts & Roberts, P.C.
215 10
th
Street, Suite 1300
Phone: 515/245-4300
Fax: 515/245-4452
gcook@grefesidney.com
lmartino@grefesidney.com

DUNES PRODUCTIONS
12

#2458199

BRYAN MOORE,

Plaintiff,

vs.

DUNES CINEMA PRODUCTIONS

Defendants.

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PLAINTIFFS 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 counsels 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
2

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: JonathanWilson@davisbrownlaw.com
TaraHall@davisbrownlaw.com

ATTORNEYS FOR THE PLAINTIFF

Original Filed.

COPY TO:

Guy R. Cook
Laura N. Martino
Phone: 515/245-4300
Fax: 515/245-4452

DUNES PRODUCTIONS
PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was served upon
all parties to the above cause to each of the attorneys of record herein at
their respective addresses disclosed on the pleadings on May 5, 2014 by:
US Mail FAX
Hand Delivered Overnight Courier
Federal Express Other: E-File

Signature: /s/ Tara Z. Hall

E-FILED 2014 MAY 05 2:20 PM SAC - CLERK OF DISTRICT COURT
2RCV01

BRYAN SCOTT MOORE ,
PLAINTIFF(S),
vs.
SULTAN SAEED AL DARMAKI
DARK 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
1 of 2
E-FILED 2014 MAY 06 9:37 AM SAC - CLERK OF DISTRICT COURT
State of Iowa Courts
Case Number Case Title
LACV019503 BRYAN MOORE V. SULTAN SAEED AL DARMAKI, DARK
DUNES
Type: OTHER ORDER
So Ordered
Electronically signed on 2014-05-06 09:37:33
2 of 2
E-FILED 2014 MAY 06 9:37 AM SAC - CLERK OF DISTRICT COURT

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

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

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

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