CHURCH OF SCIENTOLOGY OF CALIFORNIA and Founding Church of Scientology of
Washington, D. C., Plaintiffs,
v.
James SIEGELMAN, Flo Conway, J. B. Lippincott Company and Morris Deutsch,
Defendants.
No. 79 Civ. 1166 (GLG).
United States District Court, S. D. New York.
Aug. 27, 1979.
Religious organization brought defamation suit against authors, publisher, and
a former member of the organization, and defendants counterclaimed for prima
facie tort, abuse of process, and conspiracy to deprive defendants of their
constitutional rights. The District Court, Goettel, J., held that: (1)
statements which were made by defendant authors and which were replete with
opinions and conclusions about methods and practices used by religious
organization and the effect such methods and practices had, recounts of what
authors had been told during the course of their investigation, and some
unflattering factual statements did not go beyond what one would expect to find
in a frank discussion of a controversial religious organization, which was a
public figure, and thus such statements could not be the basis for religious
organization's defamation action; (2) fact issue existed as to whether
defamatory statements of fact made by former member of religious organization
were made with actual malice, precluding summary judgment as to that defendant;
and (3) counterclaim sufficiently alleged cause of action against plaintiff
religious society for prima facie tort; however, defendants' counterclaim
failed to allege cause of action for abuse of process and conspiracy to deprive
defendants of their constitutional rights.
Order accordingly.
[1] CONSTITUTIONAL LAW
Testing in court the truth or falsity of religious beliefs is barred by the
First Amendment; courts must remain neutral in matters of religious doctrine
and practice, avoid involvement in affairs of any religious organization or
group, and resist the making of any type of ecclesiastical determination.
U.S.C.A.Const. Amend. 1.
[2] CONSTITUTIONAL LAW
Where alleged defamation relates to secular matters and where issues can be
resolved by neutral principles of law, the First Amendment does not bar a
defamation suit brought by a religious organization. U.S.C.A.Const. Amend.
1.
[3] CONSTITUTIONAL LAW
The First Amendment did not bar defamation suit brought by religious
organization, since the allegedly defamatory remarks did not, on their face,
relate to the validity of religious beliefs or practices, but dealt with the
allegedly debilitating physical and psychological effects certain actions by
the religious organization had upon its members. U.S.C.A.Const. Amend. 1.
[4] LIBEL AND SLANDER
Religious organization was not precluded from bringing defamation suit merely
because it was an association and not an individual.
[5] LIBEL AND SLANDER
Plaintiffs that were component parts of a large worldwide religious movement
which claimed to have over 5 million adherents, which had taken affirmative
steps to attract public attention, and which had actively sought new members
and financial contributions from the general public were "public figures,"
and were thus required to prove that defendants made statements knowing them to
be false, or with reckless disregard as to whether they were false or not, in
order to recover in their defamation suit.
See publication Words and Phrases for other judicial constructions and
definitions.
[6] FEDERAL CIVIL PROCEDURE
In defamation suit brought by religious organization against coauthors of a
book, publisher of the book, and a former member of the organization, fact
issue existed as to whether the allegedly defamatory remarks were made with
actual malice.
[7] LIBEL AND SLANDER
In defamation action, whether a particular statement itself could constitute a
fact or an opinion is a question of law to be determined by the court.
[8] LIBEL AND SLANDER
Statements which were made by defendant authors and which were replete with
opinions and conclusions about methods and practices used by religious
organization and the effect such methods and practices had, recounts of what
authors had been told during the course of their investigation, and some
unflattering factual statements did not go beyond what one would expect to find
in a frank discussion of a controversial religious organization, which was a
public figure, and thus such statements could not be the basis for religious
organization's defamation action.
[9] FEDERAL CIVIL PROCEDURE
In defamation action brought by religious organization, fact issue existed as
to whether defamatory statements of fact made by former member of religious
organization were made with actual malice, precluding summary judgment as to
that defendant.
[10] CONSPIRACY
Counterclaim filed by authors and publisher named defendants in defamation
action sufficiently alleged cause of action against plaintiff religious
organization for prima facie tort; however, defendants' counterclaim failed to
allege cause of action for abuse of process and conspiracy to deprive
defendants of their constitutional rights.
[10] PROCESS
Counterclaim filed by authors and publisher named defendants in defamation
action sufficiently alleged cause of action against plaintiff religious
organization for prima facie tort; however, defendants' counterclaim failed to
allege cause of action for abuse of process and conspiracy to deprive
defendants of their constitutional rights.
[10] TORTS
Counterclaim filed by authors and publisher named defendants in defamation
action sufficiently alleged cause of action against plaintiff religious
organization for prima facie tort; however, defendants' counterclaim failed to
allege cause of action for abuse of process and conspiracy to deprive
defendants of their constitutional rights.
*951 Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, for
plaintiffs by Jonathan W. Lubell and Audrey J. Isaacs, New York City, of
counsel.
Clark, Wulf, Levine & Peratis, New York City, for defendants Siegelman and
Conway by Melvin L. Wulf, New York City, of counsel.
Lester, Schwab, Katz & Dwyer, New York City, for defendant Lippincott by
Patrick A. Lyons, New York City, of counsel.
Rosner & Rosner, New York City, for defendant Deutsch by Jonathan Rosner, New
York City, of counsel.
OPINION
GOETTEL, District Judge:
In this latest libel action brought by the plaintiffs, two branches of the
litigious Church of Scientology,[FN1] motions have been made by the various
defendants to dismiss the complaint for failure to state a claim upon which
relief may be granted, Fed.R.Civ.P. 12(b)(6), for judgment on the
pleadings, Fed.R.Civ.P. 12(c), and for summary judgment, Fed.R.Civ.P. 56.
The plaintiffs have cross-moved to dismiss the counterclaims raised against
them.
FN1. A lexis scan provided this Court of reported decisions in the United
States courts in which the Church of Scientology was a party revealed the
existence of thirty such cases. See Exhibit C, Motion of Defendant Deutsch
to Dismiss Complaint, for Judgment on the Pleadings, or for Summary
Judgment Dismissing the Complaint.
The defendants Siegelman and Conway are the co-authors of the book Snapping:
America's Epidemic of Sudden Personality Change, which was published by
defendant J. B. Lippincott Company in 1978. In this book the authors attempt to
explore what they describe as the "phenomenon . . . (of) sudden and drastic
alterations of personality," investigating in the process the effects on
personality of the techniques used by many of the current religious "cults" and
mass-marketed self help therapies. Included among the many groups studied and
commented upon was the *952 Church of Scientology.[FN2] The plaintiffs now
contend that included among the passages in the book relating to the Church of
Scientology were a number of highly defamatory comments.
FN2. Although the text of Snapping covers two-hundred and fifteen pages,
only seven and one-half of these deal specifically with the Church of
Scientology.
Following publication of Snapping, and as a result of the interest generated
by it, and the topic generally, the defendant Siegelman, along with the
defendant Deutsch, a former member of the Church of Scientology, appeared as
guests on the syndicated television program "The David Susskind Show." The
plaintiffs allege that during the course of the program both of these
defendants, in response to certain questions posed, made defamatory comments
about the Church.[FN3] The plaintiffs additionally assert that further
defamatory remarks were made by Siegelman and Conway in an interview which was
published in People magazine.
FN3. Although Mr. Susskind took part in the discussion, neither he, nor
any of the television entities, were named as defendants in this action.
The plaintiffs in the instant action, the Church of Scientology of California,
which is registered in California as a non-profit, religious corporation, and
the Founding Church of Scientology of Washington, D.C., which is registered in
Washington, D.C. as a non-profit, religious corporation, are part of the
worldwide Scientology religion of which the plaintiffs assert there are more
than five million members, over three million of them in the United States.
Numerous local churches of Scientology are located throughout the United States
and in various foreign countries.[FN4] The plaintiffs assert that their
individual churches have been seriously injured by the defendants' alleged
defamatory statements, and that as a result their ability to function as a non-
profit organization has been seriously impaired. The plaintiffs now seek
damages against all of the defendants.
FN4. Apparently all of these local churches are separately incorporated in
a state in which they conduct their activities.
The defendants have alleged a number of grounds upon which the complaint
should be dismissed. They first assert, characterizing this action as one
concerning statements of religious practice and beliefs, and citing to a long
line of Supreme Court cases, that this suit is barred by the free exercise and
establishment clauses of the First Amendment.[FN5]
FN5. The First Amendment states that, "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; . . ." U.S.Const. Amend. 1.
[1] It is well established that "testing in court the truth or falsity of
religious beliefs is barred by the First Amendment." Founding Church of
Scientology v. United States, 133 U.S.App.D.C. 229, 243, 409 F.2d 1146, 1156
(D.C.Cir.1969). See United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88
L.Ed. 1148 (1944). Courts must remain neutral in matters of religious doctrine
and practice, Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d
228 (1968), avoid involvement in the affairs of any religious organization or
group, Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714
(1977), Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed.
711 (1947), and resist the making of any type of ecclesiastical determination,
Presbyterian Church in the United States v. Hull Memorial Presbyterian
Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969), See Serbian
Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49
L.Ed.2d 151 (1975). As has been noted, the First Amendment rests "upon the
premise that both religion and government can best work to achieve their lofty
aims if each is left free from the other within its respective sphere."
McCollum v. Board of Education, 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92
L.Ed. 649 (1948).
[2] The defendants assert that this doctrine of non-entanglement with
religion bars the bringing of a libel action by a religious denomination, such
as the Church *953 of Scientology,[FN6] when the alleged libel relates to
the validity of religious beliefs and practices. The Court agrees that where
validity of religious beliefs are at issue involvement by the judiciary would
be inappropriate. See Cimijotti v. Paulsen, 230 F.Supp. 39 (N.D.Iowa, 1964).
It does not follow from this, however, that simply because a religious
organization is a party to an action that that action should be immediately
categorized as a theological dispute. Where the alleged defamation relates to
secular matters, and where the issues can be resolved by neutral principals of
law, no First Amendment bar exists. As was noted by the Supreme Court in a
somewhat different context, "(c)ivil courts do not inhibit free exercise of
religion merely by opening their doors to disputes involving church property."
Presbyterian Church in the United States v. Hull Memorial Presbyterian
Church, 393 U.S. at 449, 89 S.Ct. at 606.
FN6. In Founding Church of Scientology v. United States, 133
U.S.App.D.C. 299, 409 F.2d 1146 (D.C.Cir.1969), the court held, in view
of the plaintiff's having made out a Prima facie case that Scientology was
a religion, and of the defendant's decision not to contest such a
characterization, that for the purposes of that action the Church of
Scientology was to be treated as a religion entitled to the protection of
the free exercise clause. None of the defendants in the instant action
have, as of this time, challenged the plaintiffs' description of themselves
as religious institutions.
[3] In the instant action the alleged defamatory remarks do not, on their
face, relate to the validity of religious beliefs or practices. Rather, these
statements deal with the alleged debilitating physical and psychological effect
certain actions by the Church of Scientology have upon its members. While the
Court will be vigilant to avoid any entanglement with theological questions
should they arise, at this time no such questions are presented. Accordingly,
the Court finds that the free exercise and establishment clauses to the First
Amendment are no bar to this action.
[4] Having determined that this action is not precluded by the free exercise
and establishment clauses, the Court must next turn to more traditional
defamation concerns and determine whether the plaintiff churches constitute
public figures within the doctrine of New York Times Co. v. Sullivan, 376
U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).[FN7]
FN7. The defendants have also asserted that, since the plaintiffs are
religious associations and not individuals, their rights to compensation
for damages is non-existent, and that therefore the action should be
dismissed. The Court, however, finds no merit to this claim for, while it
is true that the great majority of defamation cases have been brought by
individuals to protect their reputation, See, e. g., Herbert v. Lando,
441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Time, Inc. v.
Firestone, 424 U.S. 448, 95 S.Ct. 1557, 43 L.Ed.2d 773 (1976),
corporations have also been allowed to maintain such actions. See, e. g.,
Friends of Animals, Inc. v. Associated Fur Manufacturers, 46 N.Y.2d
1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979); Cole Fischer Rogow, Inc.
v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556 (1st Dep't. 1968). In
Cole Fischer Rogow, Inc., supra at 427, 288 N.Y.S.2d at 562, it was held
that for a corporation to recover in defamation it was necessary that:
"the language used must tend directly to injure plaintiff in its business,
profession or trade, and must 'impute to the plaintiff some quality which
would be detrimental, or the absence of some quality which is essential to
the successful carrying on of his office, profession or trade.' "
Thus, if the plaintiffs, after having established the liability of any or
all of the defendants, can meet the Cole Fischer test and show direct
injury, they would then be entitled to compensation for damages.
In New York Times it was held that a public official could not recover in
defamation absent proof that the defendant made the statement knowing it to be
false, or with reckless disregard as to whether it was false or not. This
standard of proof has been extended so as to apply to public figures as well as
public officials. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct.
1975, 18 L.Ed.2d 1094 (1967). Thereafter, the Supreme Court, in Gertz v.
Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789
(1974), attempted to define the ways in which a person could become a public
figure:
"For the most part those who attain this status have assumed roles of
especial *954 prominence in the affairs of society. Some occupy positions of
such persuasive power and influence that they are deemed public figures for all
purposes. More commonly, those classed as public figures have thrust themselves
to the forefront of particular public controversies in order to influence the
resolution of the issues involved."
[5] Applying this standard to the facts of the instant action the Court
finds the plaintiffs, the Church of Scientology of California, and the
Founding Church of Scientology of Washington, D.C., to be public figures. The
plaintiffs are component parts of a large world-wide religious movement which
claims to have over five million adherents. Unlike the plaintiff in Time,
Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976),[FN8] the
instant plaintiffs have taken affirmative steps to attract public attention,
and actively seek new members and financial contributions from the general
public.[FN9] See James v. Gannett, 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353
N.E.2d 834 (1976). As was found in regards to another religious institution
(the Gospel Spreading Church) this Court believes the Church of Scientology to
be "(a)n established church with substantial congregations . . . (which) seeks
to play 'an influential role in ordering society.' " Gospel Spreading Church
v. Johnson Publishing Co., 147 U.S.App.D.C. 207, 208, 454 F.2d 1050, 1051
(D.C.Cir.1971). The Church of Scientology has thrust itself onto the public
scene, and accordingly should be held to the stringent New York Times burden of
proof in attempting to make out its case for defamation. See Church of
Scientology of California v. Cazares, 455 F.Supp. 420 (M.D.Fla.1978); Church
of Scientology of California v. Dell Publishing Co., Inc., 362 F.Supp. 767
(N.D.Cal.1973).[FN10] See also Friends of Animals, Inc. v. Associated Fur
Manufacturers, Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 (1979).
FN8. In Firestone it was held that a prominent socialite involved in a
heavily publicized (with extensive media coverage) divorce action was not a
public figure since such publicity had been involuntarily obtained as a
result of the plaintiff being "compelled to go to court by the State in
order to obtain legal release from the bonds of matrimony." Id. at 454,
96 S.Ct. at 965.
FN9. The plaintiffs, in order to attract both contributors and new
adherents to their religion, utilize street-side solicitations, distribute
large amounts of printed matter, and send unrequested literature through
the mails.
FN10. In Dell Publishing Co. the court, although not directly
addressing the public figure issue, applied the New York Times actual
malice standard in determining the motion before it.
[6] Holding the plaintiffs to the New York Times burden of proof, however,
does not resolve the issue before the Court. The defendants Deutsch and
Lippincott [FN11] (defendants Siegelman and Conway have not joined in this
motion) assert that the plaintiffs cannot satisfy the requirement of proving
actual malice, and that therefore summary judgment should be granted. They
further state that such summary disposition is particularly appropriate, and in
fact may be "the 'rule' and not the exception," Guitar v. Westinghouse
Electric Corp., 396 F.Supp. 1042, 1053 (S.D.N.Y.1975), in defamation actions,
and is necessary so as to prevent the litigation from having any potentially
chilling effect on the exercise of free speech. See Bon Air Hotel v. Time,
Inc., 426 F.2d 858, 864 (5th Cir. 1970); Oliver v. Village Voice, Inc., 417
F.Supp. 235 (S.D.N.Y.1976).
FN11. The plaintiffs assert that as a result of defects in the defendant
Lippincott's moving papers, such papers should not be treated as ones for
summary judgment (but simply as additions to the papers moving to dismiss
the complaint.) In view of the Court's disposition of this motion, however,
there is no need to reach this question.
The Court is similarly concerned over the damaging effect a frivolous suit
could have upon the exercise of First Amendment rights. The propriety of
granting summary judgment where actual malice has been alleged, however, has
been cast into great doubt by the Supreme Court's recent pronouncement in
Hutchinson v. Proximire, --- U.S. ----, 99 S.Ct. 2675, 61 L.Ed.2d 411
(1979). In its decision the Court noted *955 its doubt as to the validity of
the "so-called 'rule' that summary judgment is more appropriately granted in
defamation actions than in other types of suits, and stated that "(t)he proof
of 'actual malice' calls a defendant's state of mind into question, New York
Times v. Sullivan, 376 U.S. 264, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and does
not readily lend itself to summary disposition."
The plaintiffs have alleged that the defamatory remarks were made with actual
malice and that therefore the New York Times standard can be met. While the
supporting material submitted as to this point is far from convincing, the
plaintiffs have managed to place the defendants' state of mind into question,
and, in view of the Supreme Court's statement in Proximire, the Court does
not believe it appropriate to grant summary judgment at this time. This
determination is made, however, without prejudice to any future motion being
made after additional discovery has been conducted.[FN12]
FN12. In light of the Court's ultimate determination as to the action
against defendants Siegelman, Conway, and Lippincott, See infra, any such
subsequent motion would, of course, only apply as to defendant Deutsch.
[7] Finally, the defendants argue that even if the Court does not accept
their theoretical arguments as to the free establishment and exercise clauses,
or as to the lack of actual malice, it must still dismiss the complaint because
the alleged defamatory statements either are not libelous, or constitute
expression of opinion. In this regard it has been held that "(u)nder the First
Amendment there is no such thing as a false idea," Gertz v. Robert Welch,418
U.S. at 339, 94 S.Ct. at 3007, and thus an opinion, "(h)owever pernicious"
cannot be the basis for an action in defamation. See Buckley v. Littell, 539
F.2d 882, 889 (2d Cir. 1976). Whether a particular statement is held to
constitute a fact or an opinion is "a question of law," Rinaldi v. Holt,
Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 950, 366 N.E.2d
1299, 1306 (1977), to be determined by the Court. See Letter Carriers v.
Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974).
The plaintiffs have alleged in their complaint the utterance of twenty-three
defamatory statements by the various defendants: ten by Siegelman, Conway and
Lippincott arising from the publication of Snapping, and contained in count
ten; one by Siegelman, contained in count eighteen, and eight by Deutsch,
contained in count nineteen, arising from the Susskind interview; and four by
Siegelman and Conway arising from the People magazine interview, and contained
in count twenty-seven. After careful examination of these statements the Court
finds that many of them are clearly either non-libelous, or statements of
opinion, and thereby may not be the basis for an action in defamation.
[8] Turning first to the allegations against Siegelman, Conway and
Lippincott contained in count ten, the Court can find nothing in these
statements capable of rising to the level of a malicious false utterance
necessary for recovery in defamation. These statements are replete with
opinions and conclusions about the methods and practices used by the Church of
Scientology and the effect such methods and practices have,[FN13] recounts of
what the authors had been told during the course of their investigation,[FN14]
and some unflattering, though not *956 defamatory, factual statements.[FN15]
None of these statements go beyond what one would expect to find in a frank
discussion of a controversial religious movement, which is a public figure, and
thus none of these statements may be the basis for an action in defamation.
FN13. See, e. g., P 10(d) of the complaint:
"In our opinion, however, Scientology does not lead people beyond faith
to absolute certainty it leads them to levels of increasingly realistic
hallucination. The crude technology of auditing is a direct assult on human
feeling and on the individual's ability to distinguish between what he is
actually experiencing and what he is only imagining. The bizarre folklore
of Scientology is a tour de force of science fiction. . . . "
FN14. See, e. g., P 10(B) of the complaint:
"It may also be one of the most powerful religious cults in operation
today: The tales that have come out of Scientology are nearly impossible to
believe in relation to a religious movement that has accumulated great
credibility and respect around the world in less than twenty-five years. It
has also gathered an estimated 3.5 million followers. Nevertheless, the
reports we have seen and heard in the course of our research, both in the
media and in personal interviews with former Scientology higher-ups, are
replete with allegations of psychological devastation, economic
exploitation, and personal and legal harassment of former members and
journalists who speak out against the cult."
FN15. See, e. g., P 10(C) of the complaint:
"But for the casual customer choosing among a vast assortment of currently
available techniques for self-betterment, the Scientology procedure is
well-known, attractive, and inexpensive to begin. The auditing process
takes place in private sessions between subject and auditor, in which the
subject's emotional responses are registered on a device called an E-meter,
a kind of crude lie detector. The subject holds the terminals of the E-
meter in his hands, and the rise or fall of electrical conductivity in
response to the perspiration emitted from the palms is explained as a
measure of emotional response to the auditor's course of questioning. The
average response registers in the normal range on the meter, with abnormal
indicating an overreaction, "uptightness," or sign of trauma on the part of
the subject.
The goal of auditing is to bring all the individual's responses within the
range of normal on the E-meter. Using a technique that bears only
superficial resemblance to the popular method of biological regulation
known as biofeedback, the individual watches the E-meter and follows
precise instructions given by the auditor to learn how to reduce his
emotional response to the auditor's questions about past and painful
experiences. When the individual has mastered this ability, he becomes
eligible for admission to the elite club of Scientology clears."
Similarly, the alleged utterances in counts eighteen and twenty-seven cannot
survive judicial scrutiny. After examining the defamatory language attributed
to Siegelman in count eighteen the Court finds it to be a statement of opinion,
albeit a rather negative one, by the defendant about the plaintiff, and thus
not actionable. As to the alleged defamation contained in count twenty-seven
the Court once again finds the statements to be a mix of opinion and
unflattering, but non-defamatory, factual statements, none of which is
actionable.
[9] Turning finally to the alleged defamatory remarks made by defendant
Deutsch on the Susskind show, the Court finds that questions exist which
preclude disposition at this time. The statements attributed to Deutsch are,
unlike the ones attributed to the other defendants, defamatory statements of
fact. Deutsch asserts as a defense both that he believes the statements to be
true, and that, in any event, they were all made without actual malice. He also
asserts that the statements alleged were not addressed to these plaintiffs but
rather to Scientology in general, and thus that these plaintiffs were neither
defamed nor damaged. Finally, he claims that the utterances in the complaint
were so edited and placed out of context as to be thoroughly misleading. These
defenses, however, raise questions of fact which cannot be decided at this
time. See Proximire v. Hutchinson, --- U.S. ----, 99 S.Ct. 2675, 61 L.Ed.2d
411.
Accordingly, the motion to dismiss of defendants Siegelman and Conway, and the
motion to dismiss of defendant Lippincott, are hereby granted. The motion of
defendant Deutsch is, at this time, denied.[FN16]
FN16. Although the Court feels constrained, in view of the Proximire
footnote, to deny the motion of defendant Deutsch at this time, should it
be ultimately determined that this suit was brought without cause, or for
the purpose of harassment, the Court will not hesitate to order the
imposition of counsel fees upon the plaintiff. See Nemeroff v. Abelson,
469 F.Supp. 630 (S.D.N.Y.1979).
[10] Having thus disposed of the defendants' motions, the Court next turns
its attention to the plaintiffs' motion to dismiss the counterclaims for Prima
facie tort, abuse of process, and conspiracy to deprive the defendants of their
constitutional rights,[FN17] which have been alleged against them.
FN17. The defendant Deutsch had initially also alleged a counterclaim
based upon 42 U.S.C. s 1983. Upon the plaintiff's bringing of the
instant motion, however, the defendant chose, quite correctly in view of
the facts of this case, to consent to the dismissal of this claim.
*957 It has been held that in order to be liable for a Prima facie tort a
party must be found guilty of having inflicted intentional harm, resulting in
damages, without legal excuse or justification, by an act or series of acts
which would otherwise be lawful. Sommer v. Kaufman, 59 A.D.2d 843, 399
N.Y.S.2d 7 (1st Dept., 1977). In the instant action, the defendants allege that
the plaintiffs, acting with malice and without excuse or justification, brought
this lawsuit solely for the purpose of punishing the defendants for their
expression of adverse opinions about Scientology, and that as a result they
have suffered monetary damages. Proof of such intentional infliction and
resulting damage would establish a Prima facie tort, Rager v. McCloskey, 305
N.Y. 75, 111 N.E.2d 214 (1953), and would thereupon shift the burden to the
plaintiffs who would have to prove that such conduct was privileged. While the
facts before the Court at this stage of the litigation are sparse, it is
certainly not clear, contrary to the plaintiffs' claim, that the defendants
will not be able to meet their burden of proof. Accordingly, the motion to
dismiss this counterclaim is denied.
The defendants' second counterclaim alleges "abuse of process" by the
plaintiffs. Abuse of process has been defined as the "misuse or perversion of
regularly issued legal process for a purpose not justified by the nature of the
process." Board of Education of Farmingdale v. Farmingdale Classroom
Teachers Assoc., 38 N.Y.2d 397, 400, 380 N.Y.S.2d 635, 639, 343 N.E.2d 278,
280 (1975). [FN18] The defendants allege that the plaintiffs so abused process
when they served each defendant with a summons and complaint for the sole
purpose of harassing, discouraging and intimidating them from further
criticizing Scientology. Upon close examination, however, the Court believes
that while such allegations may succeed in a suit for malicious prosecution
(brought after a successful termination of this litigation), they are
insufficient to sustain a cause of action for abuse of process. Hoppenstein
v. Zemek, 62 A.D.2d 979, 403 N.Y.S.2d 542 (2d Dep't. 1978) (the mere
institution of a civil action by summons and complaint is not legally
considered such process as is capable of being abused and thereby does not
afford a basis for a cause of action for abuse of process). The plaintiffs'
motion to dismiss the defendants' counterclaims for abuse of process is
granted.
FN18. In this regard it has been noted that even a pure spite motive is
insufficient to show abuse of process where process is used only to
accomplish the result for which it was created. See Prosser, Law of Torts,
s 121 (4th ed. 1971).
The defendants' final counterclaims allege that the plaintiffs, along with
other not-for-profit corporations and organizations affiliated with the Church
of Scientology, have engaged in a conspiracy to deprive a class of individuals,
of whom the defendants were a part, (described essentially as consisting of
critics of the Church of Scientology),[FN19] of their constitutionally-
protected rights in violation of 42 U.S.C. s 1985(3). The plaintiffs have
moved to dismiss, asserting that such class was not formed on the basis of any
invidious criteria, and thus that the defendants cannot satisfy the
prerequisites for maintaining a section 1985 action. Griffen v.
Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Jacobson v.
Organized Crime and Racketeering, etc., 544 F.2d 637 (2d Cir.), Cert. denied,
403 U.S. 955, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977). Although the Court
finds this to be a close issue, we conclude that this vague and amorphous
alleged class was not formed on the basis of any invidious criteria. See
Rodgers v. Tolson, 582 F.2d 315 (4th Cir. 1978) (critics of city
commissioners not a valid class); Harrison v. Brooks, 519 F.2d 1358 (1st
Cir. 1975) (residential property owners who own adjacent residential land
illegally crossed by industrial access driveways not a valid class); Kimble
v. D. J. McDuffy, Inc., 445 *958 F.Supp. 269 (E.D.La.1978) (oil industry
workers who had made any prior claim for personal injuries not a valid class).
[FN20] In addition, the defendants have not even made a minimal showing that
the two plaintiffs, as opposed to the world-wide Scientology movement in
general, have conspired with each other for the purpose of depriving the
putative class of their constitutional rights. Accordingly, the plaintiffs'
motion to dismiss the defendants' counterclaim based upon 42 U.S.C. s
1985(3) is hereby granted.
FN19. Defendant Deutsch characterized the class as consisting of members
and former members, and persons disseminating information about, the Church
of Scientology.
FN20. For cases which have found a valid class for s 1985 purposes,
See Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), Cert.
denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975); Westberry
v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975), Vacated as moot, 507
F.2d 215 (5th Cir. 1975); Selzer v. Berkowitz, 459 F.Supp. 347
(E.D.N.Y.1978); Bradley v. Clegg, 403 F.Supp. 830 (E.D.Wis.1975).
Conclusion
The action against defendants Siegelman, Conway and Lippincott is hereby
dismissed. The motion of defendant Deutsch is denied, without prejudice,
however, to a subsequent motion upon completion of additional discovery. The
plaintiffs' motion to dismiss all counterclaims is denied in part and granted
in part.
The Clerk will enter judgment dismissing the action against defendants,
Siegelman, Conway, and Lippincott.
SO ORDERED.