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Wittstadts Motion to Dismiss

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Motion to dismiss a lawsuit brought by Dustin Johnson.
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    IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DUSTIN JOHNSON, ) ) Plaintiff, ) ) v. ) CIVIL ACTION FILE ) NO. 1:14-CV-03457-SCJ MORRIS SCHNEIDER ) WITTSTADT, LLC f/k/a MORRIS ) HARDWICK SCHNEIDER, LLC; ) MSLAW, INC. f/k/a MHSLAW, INC.; )  NATHAN HARDWICK IV, ESQ.; ) MARK WITTSTADT, ESQ.; ) GERARD WM. WITTSTADT JR., ESQ., ) ) Defendants. ) ) THE WITTSTADT DEFEND ANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Like many others, Dustin Johnson misplaced trust in Nat Hardwick, his close friend. But that doesn’t forgive the knowingly false conclusions Johnson throws at Morris Schneider Wittstadt, LLC, MSWLaw, Inc. (improperly named MSLaw, Inc.), Mark Wittstadt and Gerard Wm. (“Rod”)  Wittstadt, Jr. (collectively the “Wittstadt   Defendants”) in this lawsuit. Because they lack any factual support and are contrary to controlling law, the Court should dismiss with prejudice Johnson’s “shotgun” claims leveled at the Wittstadt Defendants. Case 1:14-cv-03457-SCJ Document 9-1 Filed 11/03/14 Page 1 of 27   2 I. FACTUAL BACKGROUND 1   S tripped of rhetoric and speculation, Johnson’s allegations  boil down to this: Hardwick told Johnson that if he entered into a promissory note and guaranty with the Wittstadt Defendants, Johnson would earn $1 million on a $3 million loan. (R.8, ¶¶ 34  –  39.) 2  Absent any communication with the Wittstadt Defendants, and without ever executing, or even seeing, a written note or guaranty purporting to obligate any of the Wittstadt Defendants, Johnson wired $3 million to an account identified by Hardwick. (R.8, ¶¶ 34  –  41, 57  –  61.) Johnson learned that Hardwick was accused of embezzling $30 million from the Wittstadt Defendants, but Hardwick denied wrongdoing. 3  (R.8, ¶¶ 62  –  66.) Johnson never alerted the Wittstadt Defendants to the supposed loan until his lawyer sent an October 14, 1  On this motion, the Court should accept the truth of  facts  alleged in the Complaint but should not accept conclusory allegations, opinions, and legal conclusions. See United Techs. Corp. v. Mazer  ,   556 F.3d 1260, 1269 (11th Cir. 2009);  South Fla. Water Mgmt. Dist. v. Montalvo , 84 F.3d 402, 408 n.10 (11th Cir. 1996). After excising speculation, unsupported conclusions, and innuendo, not much remains, and the Wittstadt Defendants do not admit that any of it is true. 2  Hardwick made assorted other representations regarding other investors and the status of alleged loan documents; none were made by the Wittstadt Defendants. (R.8, ¶¶ 40  –  44.) 3  Likewise, when confronted by the Wittstadts, Hardwick denied wrongdoing and said he would put money back into the firm to replace funds he had received “in error.”  Hardwick maintained, in writing and orally, that the funds were his money  —  from his personal accounts or personally borrowed by him. Case 1:14-cv-03457-SCJ Document 9-1 Filed 11/03/14 Page 2 of 27   3 2014 letter demanding $4 million. (R.8, ¶¶ 70, 72.) Shortly thereafter, Johnson filed this suit. Most of the remaining pleaded facts add flavor, but little else. Morris Schneider Wittstadt (“MSW”) is a real estate law firm. ( R.8, ¶ 3.) MSWLaw, Inc. is “the parent company” of MSW . (  Id. , ¶¶ 2, 38.) Lawyers Mark and Rod Wittstadt own and manage MSW. (  Id. , ¶¶ 21, 26.) Before being accused of embezzlement, Hardwick was a member of MSW’s and MS W Law’s predecessor  s. (  Id. , ¶¶ 16, 31.) Johnson is, or was, a professional golfer. 4  (  Id  ., p. 2.) Johnson and Hardwick were very, very close. “Hardwick played a  particularly unique and significant role of trust and confidence, serving as one of Mr. Johnson’s primary advisors on all matters relating to his career as a  professional golfer, as well as an officer in Mr  . Johnson’s professional corporation. ”  (  Id  .) Johnson says he relied “to his detriment” on Hardwick’s misrepresentations. (  Id. , ¶¶ 47, 48, 49, 57, 66, 67.) Everything else asserted by Johnson consists either of patently false and irrelevant “facts , ” or completely unsupported, inactionable, conclusory statements. 4  Apparently his status is in doubt, as Johnson has taken an indefinite leave of absence from the PGA Tour amid allegations of substance abuse. Hank Gola,  Report: Golf star Dustin Johnson hit with six-month ban from PGA Tour after testing positive for cocaine , N.Y.   D AILY  N EWS  (August 2, 2014).   Case 1:14-cv-03457-SCJ Document 9-1 Filed 11/03/14 Page 3 of 27   4 Examples of the former are false statements regarding the Wittstadt Defendants’ response to Johnson ’ s pre-suit $4 million demand. 5  (  Id. , ¶¶ 76  –  78.) Examples of the latter are much too numerous and pervasive to recount here. In sum, while long on hyperbole and inflammatory accusation, the Complaint is bereft of any facts showing the Wittstadt Defendants to  be any more than victims of Hardwick’s alleged misconduct. II. ARGUMENT AND CITATION OF AUTHORITY While Dustin Johnson’s complaint against the Wittstadt Defendants may b e a tribute to creative fiction, it is a travesty to legal pleading. Purposely abusing the Federal Court system to falsely accuse good, ethical lawyers of crimes and lies should be severely punished, but today is not the day for that. Instead, the Wittstadt Defendants show the Court that shotgun pleading to paint a patently false picture is not condoned. Throwing libelous accusations against the wall to see if they stick does not meet any acceptable pleading standard. And, spitting out terms like “racketeering” and “wire fraud” with no legal or factual foundation cannot save a meritless suit. 5  One must surmise that such falsehoods were included to attempt to purposely malign the Wittstadt Defendants and discourage them from defending this suit. Case 1:14-cv-03457-SCJ Document 9-1 Filed 11/03/14 Page 4 of 27
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