Baker's Bay at Great Guana, Llc v. Discovery Bakers Bay Investors, Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.October 5, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Baker’s Bay at Great Guana, LLC, Plaintiff, v. Discovery Baker’s Bay Investors, LLC and Discovery Land Company, LLC , Defendants. CIVIL ACTION NO. 1:16-cv-02960-ELR DEFENDANTS’ MOTION TO DISMISS Defendants Discovery Baker’s Bay Investors, LLC (“DBBI”) and Discovery Land Company, LLC (“Discovery Land”) move to dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Baker’s Bay at Great Guana, LLC’s (“BBGG”) alleges two claims in this action: one for breach of a Fee Sharing Agreement, and one for attorneys’ fees under O.C.G.A. § 13-6-11. BBGG’s claim for breach of contract should be dismissed because the Fee Sharing Agreement lacks consideration and is therefore unenforceable. Even if the breach of contract claim could somehow survive in the absence of any consideration, Discovery Land should be dismissed from this lawsuit because it is Case 1:16-cv-02960-ELR Document 10 Filed 10/05/16 Page 1 of 3 2 not a party to the Fee Sharing Agreement. Although BBGG tries to overcome this obstacle by invoking the equitable doctrine of “alter ego,” its allegations that DBBI is a mere instrumentality of Discovery Land are vague and conclusory and cannot survive scrutiny under Iqbal and Twombly. In addition, BBGG has not pled that DBBI—the actual party to the Fee Sharing Agreement—is insolvent and would be unable to satisfy any judgment against it. Such an allegation, however, is a prerequisite under Georgia law for using alter ego theory to hold a non-party to a contract liable for a breach of the contract. Because Plaintiff’s breach of contract claim fails, its derivative claim for attorneys’ fees under O.C.G.A. § 13-6-11 must also fail. For these reasons, Defendants respectfully request that the Complaint be dismissed with prejudice. Dated October 5, 2016. ARNALL GOLDEN GREGORY LLP By: /s/ Theresa Y. Kananen Theresa Y. Kananen, Ga Bar 478998 Edward A. Marshall, Ga Bar 471533 171 17th Street NW, Suite 2100 Atlanta, GA 30363-1031 Telephone: 404.873.7010 Facsimile: 404.873.7011 Attorneys for Defendants Discovery Baker’s Bay Investors, LLC and Discovery Land Company, LLC Case 1:16-cv-02960-ELR Document 10 Filed 10/05/16 Page 2 of 3 3 CERTIFICATE OF COMPLIANCE AND SERVICE The undersigned hereby certifies that on October 5, 2016, the foregoing MOTION TO DISMISS was prepared using 14-point Times New Roman font, and was filed electronically with the Clerk of Court, using the CM/ECF filing system, which will automatically deliver notice of the filing on the following counsel of record: Ben F. Easterlin Jessica E. Sabbath King & Spalding LLP 1180 Peachtree Street, NE Atlanta, GA 30309 beasterlin@kslaw.com jsabbath@kslaw.com Attorneys for Plaintiff /s/ Theresa Y. Kananen Theresa Y. Kananen Ga Bar No. 478998 Case 1:16-cv-02960-ELR Document 10 Filed 10/05/16 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Baker’s Bay at Great Guana, LLC, Plaintiff, v. Discovery Baker’s Bay Investors, LLC and Discovery Land Company, LLC , Defendants. CIVIL ACTION NO. 1:16-cv-02960-ELR DEFENDANTS’ MEMORADUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS I. INTRODUCTION Defendants Discovery Baker’s Bay Investors, LLC (“DBBI”) and Discovery Land Company, LLC (“Discovery Land”) move to dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Baker’s Bay at Great Guana, LLC’s (“BBGG”) alleges two claims in this action: one for breach of a Fee Sharing Agreement, and one for attorneys’ fees under O.C.G.A. § 13-6-11. BBGG’s claim for breach of contract should be dismissed because the Fee Sharing Agreement lacks consideration and is therefore unenforceable. The single obligation memorialized in the Fee Sharing Agreement is that of DBBI to pay to Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 1 of 17 2 BBGG a percentage of certain commissions from real estate sales. BBGG, however, offers nothing in return for those payments. Applicable law does not permit the judicial enforcement of agreements that purport to impose obligations on only one of two contracting parties. Furthermore, even if the breach of contract claim could somehow survive in the absence of any consideration, Discovery Land should be dismissed from this lawsuit because it is not a party to the Fee Sharing Agreement. Although BBGG tries to overcome this obstacle by invoking the equitable doctrine of “alter ego,” BBGG has failed to adequately plead the essential elements supporting an alter ego theory of liability. Its allegations that DBBI is a mere instrumentality of Discovery Land are vague and conclusory and cannot survive scrutiny under Iqbal and Twombly. In addition, BBGG has not pled that DBBI—the actual party to the Fee Sharing Agreement—is insolvent and would be unable to satisfy any judgment against it. Such an allegation, however, is a prerequisite under Georgia law for using alter ego theory to hold a non-party to a contract liable for a breach of the contract. Because BBGG cannot state a claim for breach of contract, its derivate claim for attorneys’ fees also fails. For these reasons, and as further explained below, the Complaint should be dismissed with prejudice. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 2 of 17 3 II. FACTUAL BACKGROUND A. The Fee Sharing Agreement This lawsuit arises out of a dispute over BBGG’s purported entitlement to commissions resulting from the re-sale of lots in a resort development on Great Guana Cay in Abacos, The Bahamas. (Doc. 1, Compl. ¶¶ 1-3.) On November 26, 2004, DBBI, BBGG, and Baker’s Bay Investors, LLC (a non-party to this action) formed Baker’s Bay Associates, LLC, an entity which owns, develops, operates, and markets the property in the Baker’s Bay resort through various subsidiaries. (Compl. ¶¶ 6, 34.) Concurrently with the formation of Baker’s Bay Associates, LLC, BBGG and DBBI entered into a one and a half page Fee Sharing Agreement, which provides in pertinent part as follows: THIS FEE SHARING AGREEMENT (herein called the “Agreement”), made and entered into as of November 26, 200, by and among DISCOVERY BAKERS BAY INVESTORS, LLC, a Delaware, Ltd. Liability Company (“DLC”) and BAKER’S BAY AT GREAT GUANA, LLC, a Georgia limited liability company (“BMH”);1 … WHEREAS, Baker’s Bay Associates, LLC (“Development Venture”) an affiliate of DLC [DBBI] and BMH [BBGG], owns that certain tract or parcel of land consisting of approximately 451 acres located on Great Guana Cay, Abacos, The Bahamas… 1 The abbreviations used in the Fee Sharing Agreement to refer to the parties do not correspond the parties’ actual initials. To avoid confusion, the party names as abbreviated in this lawsuit have been inserted in brackets in the portions of the Fee Sharing Agreement excerpted below. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 3 of 17 4 WHEREAS Development Venture intends to develop the Property with residential lots, a marina, golf club and related amenities; WHEREAS DLC [DBBI] will operate a real estate sales company located in The Abacos engaged in the resale of lots or residences and possibly providing other fee services, and in such capacity DLC [DBBI] shall earn certain fees and commissions; and WHEREAS, the parties hereto desire to provide for BMH [BBGG] to share in a portion of the compensation paid to DLC [DBBI]; NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. Incorporation of Recitals. The recitals set forth above, including defined terms, are incorporated in and made a part of this agreement. 2. Shared Commissions and Fees. DLC [DBBI] hereby agrees and acknowledges that DLC [DBBI] shall pay to BMH [BBGG] twenty percent (20%) of all gross commissions and fees earned by the real estate sales company located in The Abacos, subject to a cap of Three Million and No/100 Dollars ($3,000,000). At such time as BMH [BBGG] has received from DLC [DBBI] commissions and fees totaling in the aggregate Three Million and No/100 Dollars ($3,000,000.00), this Agreement shall terminate and shall be of no further force or effect. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 4 of 17 5 (Doc. 1-1, Exh. A to the Compl., Preamble and §§ 1-2.)2 These provisions comprise the entire substantive portion of the Fee Sharing Agreement, with the last half page reciting boilerplate terms. Specifically, the remainder of the contract states that unenforceable provisions shall be severable; that there are no third-party beneficiaries; that the Agreement shall not create a partnership or joint venture between the parties; that amendments must be in a writing signed by both parties; that the Agreement may be executed in counterparts; that the Agreement may not be assigned absent the written consent of BBGG; that the Agreement shall be binding on the parties’ successors; and that the Agreement need not be recorded. (Id. §§ 3-9.) The Fee Sharing Agreement imposes no duties or obligations whatsoever on BBGG. Reduced to its essence, it is nothing more than an ostensible commitment by DBBI to turn over to BBGG 20% of certain real estate sales commissions, with BBGG providing nothing in return. (Id.) B. Discovery Land Company Discovery Land is a privately held real estate development company. (Compl. ¶ 2.) However, it is neither a party to the Fee Sharing Agreement, nor a 2 Because attachments to the Complaint are part of the pleadings, the Court may consider the Fee Sharing Agreement without converting this Motion to Dismiss into a motion for summary judgment. Fed. R. Civ. P. 10; Solis-Ramirez v. United States Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985). Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 5 of 17 6 member of Baker’s Bay Associates, LLC. (Compl. ¶¶ 7, 10, 34, and Ex. A to Compl.) In fact, its inclusion in this lawsuit appears to be based entirely on the allegation that certain principals of Discovery Land transacted business related to the Baker’s Bay development on behalf of DBBI. (See Compl. ¶¶ 29-31, 37-38.) Extrapolating broadly, BBGG alleges based solely on information and belief that: (1) Discovery Land formed DBBI as a shell entity to transact its affairs related to Baker’s Bay in order to avoid contractual liability; (2) DBBI has no assets or employees of its own and is controlled entirely by Discovery Land; and (3) there is a complete unity of assets, management, and ownership between Discovery Land and DBBI. (Compl. ¶¶ 3-4, 42-43.)3 From these allegations, which are unaccompanied by concrete facts, BBGG concludes that, even though Discovery Land is not a party to the Fee Sharing Agreement, it should nevertheless be liable for DBBI’s purported breach because DBBI is a “mere alter ego or business conduit of Discovery Land.” (Compl. ¶ 63.) BBGG does not allege that DBBI is insolvent or otherwise incapable of satisfying its purported obligation under the Fee Sharing Agreement. To the contrary, BBGG alleges that DBBI “has operated a real estate sales company at 3 Although Defendants deny the accuracy of these (and other) allegations in the Complaint, the applicable standard of review requires that they be accepted as true for purposes of this Motion to Dismiss. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 6 of 17 7 Baker’s Bay, and has continued to resell numerous lots and residences at the development. From those resales, the real estate sales company has earned, and continues to earn, fees and commissions.” (Compl. ¶ 48 (emphasis supplied).) Against this factual backdrop, Defendants move for the dismissal of the Complaint. III. LEGAL ARGUMENT A. Standard of Review When considering a motion to dismiss under Rule 12(b)(6), the well-pleaded facts of the Complaint must be accepted as true, and the reasonable inferences therefrom must be construed in the light most favorable to the Plaintiff. FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011). However, mere labels or conclusions do not satisfy the pleading standard of Rule 8(a), nor do “naked assertions” devoid of “further factual enhancement.” See Phigenix, Inc. v. Genentech, Inc., 1:14-CV-287-MHC, 2015 WL 10910488, at *1 (N.D. Ga. Mar. 3, 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) and Ashcroft v. Iqbal, 556. U.S. 662, 678 (2009)). Rather, to survive dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Twombly, 550 U.S. at 570. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 7 of 17 8 B. The Fee Sharing Agreement is Unenforceable Because it Lacks Consideration BBGG’s sole substantive claim in this action is for breach of the Fee Sharing Agreement. Section 2 of the Fee Sharing Agreement requires DBBI to pay BBGG 20% of “gross commissions and fees earned by the real estate sales company located in The Abacos” operated by DBBI. (Doc. 1-1, Ex. A to Compl. at Preamble and Section 2.) On the other side of the transaction, BBGG commits to nothing— not a performance, not a reciprocal promise, and not a forbearance. (Id.) “It is fundamental contract law that consideration is essential to a contract which the law will enforce.” Newport Timber Corp. v. Floyd, 247 Ga. 535, 540 (1981); O.C.G.A. § 13-3-40 (“A consideration is essential to a contract which the law will enforce. An executory contract without such consideration is called a nudum pactum or a naked promise.”) Moreover, “the consideration must be stated in the contract or at least be ascertainable from the contract.” Robles v. Humana Hosp. Cartersville, 785 F. Supp. 989, 1001 (N.D. Ga. 1992) (citing Summerlin v. Beacon Inv. Co., Inc., 120 Ga. App. 296, 298 (1969)). Here, the Fee Sharing Agreement makes no mention whatsoever of any consideration moving from BBGG to DBBI in exchange for DBBI’s purported obligation to tender 20% of commission payments to BBGG. The entirety of that short agreement is simply that DBBI will pay BBGG. Of course, a promise to pay Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 8 of 17 9 money, like any other promise, is unenforceable when it is unsupported by consideration. Gill v. B&R Int’l, Inc., 234 Ga. App. 528, 531 (1998) (refusing to enforce a promise to pay severance that lacked consideration); Adams v. JPMorgan Chase Bank, Civil Action No. 1:10-CV-04226-RWS, 2011 WL 2532925, at *3 (N.D. Ga. June 24, 2011) (granting motion to dismiss claim for breach of contract based on lack of consideration). Because DBBI’s payment obligation is a mere gratuity which the law will not enforce, the claim for breach of contract should be dismissed with prejudice. C. BBGG Has Failed to State a Claim Against Discovery Land Company Even if the claim for breach of contract could survive dismissal (and it cannot), Discovery Land should be dismissed from this lawsuit in any event because it is not a party to the Fee Sharing Agreement, (Doc. 1-1, Ex. A to Compl.), and BBGG has failed to plead any basis for Discovery Land to be liable for DBBI’s purported contractual obligations. Generally, “a breach of contract claim may only be maintained against a party to the contract.” Perry v. Unum Life Ins. Co. of Am., 353 F. Supp. 2d 1237, 1239 (N.D. Ga. 2005). Nevertheless, BBGG seeks to hold Discovery Land liable for DBBI’s (unenforceable) promise to pay BBGG certain real estate commissions under the equitable doctrine of alter ego, alleging that DBBI was a mere business Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 9 of 17 10 conduit for Discovery Land. (Compl. ¶¶ 13, 63.) Georgia courts will only apply the doctrine of alter ego to disregard the corporate form when (1) one of the entities at issue is a mere instrumentality of the other; and (2) observing the corporate form would work an injustice because no adequate remedy exists at law. Ralls Corp. v Huerfano River Wind, LLC, 27 F. Supp. 3d 1303, 1328 (N.D. Ga. 2014) (citing Baillie Lumber Co. v. Thompson, 279 Ga. 288, 290 (2005)); Amason v. Whitehead, 186 Ga. App. 320, 321 (1988) (Georgia law only allows the corporate form to be disregarded “to remedy injustices which arise where a party has over extended [its] privilege in the use of the corporate entity in order to defeat justice, perpetuate fraud, or to evade contractual or tort responsibility”). The Complaint in this case fails to meet either element of the alter ego doctrine. With regard to the first element, BBGG to allege sufficient facts under Iqbal and Twombly to establish that DBBI is a mere instrumentality of Discovery Land. As to the second element, BBGG has failed to plead that DBBI is insolvent or otherwise incapable of satisfying a money judgment against it, should BBGG prevail. Such an allegation is a prerequisite to invoking alter ego theory in a breach of contract case. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 10 of 17 11 1. BBGG’s allegations that DBBI is an alter ego of Discovery Land do not meet the pleading standard of Iqbal and Twombly. The only specific fact that BBGG pleads to support its claim that DBBI is an alter ego of Discovery Land is that principals of Discovery Land conducted business on behalf of DBBI. (Compl. ¶¶ 29-31, 37-38.) The rest of its recitals are conclusory, speculative, and unsupported by any allegations of concrete fact. In particular, BBGG claims solely “on information and belief” that: (1) Discovery Land formed DBBI as a shell entity to avoid contractual liability (id. ¶¶ 3, 42); (2) DBBI has no assets or employees of its own and is controlled entirely by Discovery Land (id. ¶¶ 4, 42); and (3) there is a complete unity of assets, management, and ownership between Discovery Land and DBBI. (Compl. ¶¶ 4, 43.) However, BBGG does not set forth any foundational facts to support these sweeping conclusions. BBGG has failed to meet its burden under Iqbal and Twombly with regard to the first prong of the alter ego theory that DBBI was a mere instrumentality of Discovery Land. The only fact that BBGG alleges in support of that claim is that principals of Discovery Land conducted business on behalf of DBBI. But even taking all reasonable inferences in BBGG’s favor, there is nothing inherently suspect or unlawful about one or more individuals serving as principals of different business entities. BBGG nevertheless leaps to the conclusions that DBBI is simply Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 11 of 17 12 a shell without any employees or assets of its own, and (contradictorily) that there is a complete unity of interests, assets, and management between Discovery Land and DBBI. However, BBGG does not plead any facts to support these conflicting speculations.4 BBGG’s alter ego theory is founded on the type of “naked assertions” and “mere conclusory allegations” that the United States Supreme Court has deemed insufficient to survive a motion to dismiss. Twombly, 550 U.S. at 557; Iqbal, 556 U.S. at 678; see also Websters Chalk Paint Powder, LLC v. Annie Sloan Interiors, Ltd., 1:13-cv-2040-WSD, 2014 WL 4093669, at *6 (N.D. Ga. Aug. 18, 2014) (rejecting alter ego allegations as facially insufficient at the motion to dismiss stage). Without the alter ego doctrine, there is no basis to hold Discovery Land liable under the Fee Sharing Agreement, to which it is undisputedly not a party. Thus, Discovery Land should be dismissed from this case with prejudice. 2. BBGG fails to plead that DBBI would be incapable of satisfying a judgment against it arising out of the Fee Sharing Agreement. Even if BBGG had sufficiently pled that DBBI is a mere instrumentality of Discovery Land, Discovery Land should still be dismissed because BBGG failed to plead the second requirement to invoke the alter ego theory: that pursuing only 4 That failure is not surprising, because those allegations are incorrect. However, for purposes of this Motion to Dismiss, the allegations in the Complaint must be accepted as true. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 12 of 17 13 DBBI would deprive BBGG of an adequate remedy at law, because DBBI is incapable of satisfying a judgment against it. The Georgia Supreme Court has limited the application of the equitable theory of alter ego to only those situations in which no adequate remedy exists at law. Baillie Lumber Co. v. Thompson, 279 Ga. 288, 290 (2005). This means that the entity that would be legally obligated for any judgment obtained through a lawsuit—here, DBBI—would have to be insolvent or otherwise incapable of satisfying the judgment. Johnson v. Lipton, 254 Ga. 326, 327 (1985). Following established Georgia law, this Court (and other District Courts in Georgia) have repeatedly rejected plaintiffs’ attempts to rope non-parties to a contract into claims for breach of contract based on an alter ego theory when the plaintiff fails to plead that the actual party to the contract is insolvent or otherwise incapable of satisfying a judgment. See, e.g., Perry v. Unum Life Ins. Co. of Am., 353 F. Supp. 2d 1237, 1240-41 (N.D. Ga. 2005) (granting motion to dismiss claim for breach of contract against non-party to the contract based on alter ego theory where plaintiff “does not allege that Unum Life [the party to the disputed contract] has insufficient assets to satisfy any claim that she might successfully maintain for breach…”); Adams v. Unum Life Ins. Co. of Am., 508 F. Supp. 2d 1302, 1315-16 (N.D. Ga. 2007)(granting summary judgment on breach of contract claim against Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 13 of 17 14 non-party to the contract based on alter ego theory, even where there was a showing of common principals, because plaintiff “has not shown that Defendant Unum Life [the party to the contract] is insolvent”); Anderson v. Am. Family Ins. Co., Civil Action No. 5:15-CV-475 (MTT), 2016 WL 3633349, at *6, *9 (M.D. Ga. June 29, 2016) (granting motion to dismiss breach of contract action against non-party to contract premised on alter ego liability where there was no allegation that the party to the disputed contract was insolvent); CHIS, LLC v. Liberty Mut. Holding Co., Inc., Civil Action No. 5:14-CV-277 (MTT), 2015 WL 4249358, at *3-*5 (M.D. Ga. June 13, 2015) (granting motion to dismiss breach of contract claim against non-party to the contract premised on alter ego when plaintiff failed to allege that the party to the contract was insolvent); Great Dane Ltd. P’ship v. Rockwood Serv. Corp., No. CV410-265, 2011 WL 2312533 (S.D. Ga. June 8, 2011) (denying motion to compel discovery, filed during pendency of motion to dismiss, on alter ego/veil piercing theory where plaintiff failed to plead the prerequisite of insolvency). BBGG does not allege that DBBI is insolvent or otherwise incapable of satisfying a judgment against it. In fact, it alleges that DBBI formed a real estate company in the Abacos that has been receiving commissions from the resale of property in the Baker’s Bay development. (Compl. ¶ 48.) It also alleges that DBBI Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 14 of 17 15 has a unity of assets with Discovery Land (id. ¶ 43), which (while incorrect) only supports the conclusion that DBBI could satisfy a judgment against it. The Complaint simply contains no substantive fact allegations to meet the requisite showing that proceeding only against DBBI would deprive BBGG of an adequate remedy at law. Discovery Land is not a party to the Fee Sharing Agreement, and BBGG has failed to plead the elements of the alter ego theory. Thus, there is no basis for Discovery Land to continue as a party to this breach of contract action. Discovery Land should be dismissed. D. The Claim Under O.C.G.A. 13-6-11 Must be Dismissed Because BBGG has failed to state a valid claim for relief, its claim for attorneys’ fees under O.C.G.A. § 13-6-11 must also be dismissed. See Benchmark Builders, Inc. v. Schultz, 289 Ga. 329, 330 (2011) (holding void an award of attorney’s fees in the absence of actual damages or other affirmative relief). IV. CONCLUSION For the foregoing reasons, Defendants respectfully move that the Complaint be dismissed with prejudice. Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 15 of 17 16 Dated October 5, 2016. ARNALL GOLDEN GREGORY LLP By: /s/ Theresa Y. Kananen Theresa Y. Kananen, Ga Bar 478998 Edward A. Marshall, Ga Bar 471533 171 17th Street NW, Suite 2100 Atlanta, GA 30363-1031 Telephone: 404.873.7010 Facsimile: 404.873.7011 Attorneys for Defendants Discovery Baker’s Bay Investors, LLC and Discovery Land Company, LLC Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 16 of 17 17 CERTIFICATE OF COMPLIANCE AND SERVICE The undersigned hereby certifies that on October 5, 2016, the foregoing MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS was prepared using 14-point Times New Roman font, and was filed electronically with the Clerk of Court, using the CM/ECF filing system, which will automatically deliver notice of the filing on the following counsel of record: Ben F. Easterlin Jessica E. Sabbath King & Spalding LLP 1180 Peachtree Street, NE Atlanta, GA 30309 beasterlin@kslaw.com jsabbath@kslaw.com Attorneys for Plaintiff /s/ Theresa Y. Kananen Theresa Y. Kananen Ga Bar No. 478998 Case 1:16-cv-02960-ELR Document 10-1 Filed 10/05/16 Page 17 of 17