OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




                 CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff,
                                       v.
                          Michael J. FLYNN, Defendant.
                             Civ. A. No. 83-2386-MA.
                          United States District Court,
                                D. Massachusetts.
                                 Jan. 16, 1984.
  Not-for-profit religious corporation brought libel action against attorney.
 The District Court, Mazzone, J., held that:  (1) statement asserting that an
 individual or small group of individuals belonging to not-for-profit
 corporation infiltrated county court house and stole attorney's filing fee did
 not libel corporation, and (2) corporation could not sue derivatively to
 vindicate its members' rights.
  Ordered accordingly.

 [1] LIBEL AND SLANDER
 Florida law applied to libel suit where publication of alleged libel occurred
 in Florida and that state was place of injury, place of much of the relevant
 conduct, and place where relationship between defendant and plaintiff was
 centered.

 [2] LIBEL AND SLANDER
 A corporation and not-for-profit corporation can sue for libel.

 [3] LIBEL AND SLANDER
 A corporation cannot prevail in libel action unless allegedly defamatory
 statement was published of and concerning the corporation.

 [4] LIBEL AND SLANDER
 Whether, for purposes of libel action brought by corporation, a corporation's
 standing in community was actually diminished is not relevant if publication at
 issue did not falsely charge corporation itself with some kind of impropriety.

 [5] LIBEL AND SLANDER
 Statements by attorney asserting that an individual or small group of
 individuals belonging to not-for-profit religious corporation infiltrated
 county court house and stole his filing fee did not libel not-for-profit
 corporation, as the statement was directed at an individual or a few
 individuals, not the corporation.

 [6] LIBEL AND SLANDER
 A not-for-profit corporation may sue to vindicate its members' rights;  but in
 order to do so in a libel action, those members must have rights which they
 could assert in an individual action.

 [7] LIBEL AND SLANDER
 Not-for-profit religious corporation could not sue derivatively, on behalf of
 members, for alleged libel by attorney, who asserted that an individual or
 small group of individuals belonging to corporation infiltrated county court
 house and stole his filing fee, as no individual members possessed rights they
 could assert in an individual action.
  *266 Roger Geller, Geller & Weinberg, Boston, Mass., Jonathan Lubell, Cohn,
 Glickstein, Lurie, Ostrin, Lubell & Lubell, New York City, for plaintiff.
  Elizabeth Butler Heath, Morrison, Mahoney & Miller, Boston, Mass., for
 defendant.
                              MEMORANDUM AND ORDER

  MAZZONE, District Judge.
  This is a libel action.  The plaintiff, the Church of Scientology of
 California ("CSC"), seeks damages from the defendant, Michael J. Flynn, for
 allegedly defamatory statements made by Flynn and subsequently *267
 published in a Florida newspaper.  The matter is before the Court on the
 defendant's motion to dismiss for failure to state a claim upon which relief
 can be granted.
  Flynn, a Boston attorney, made the statements in November, 1982, in a
 telephone interview with a reporter from the Clearwater (Florida) Times.  The
 statements concern Flynn's attempt to appeal a contempt order issued by a
 Florida court in litigation against the CSC.  The complaint alleges that the
 following portions of the story are defamatory:
   Michael Flynn, Clearwater's consultant on the Church of Scientology,
 contended Friday that Scientologists have infiltrated the Volusia County court
 system and stolen two checks that he sent to appeal a court decision here.
                                       * * *
   Speaking from his Boston office, lawyer Flynn said he mailed two checks, one
 for $50 and another for $10, to Volusia, and claimed that he even has the bank
 records to prove it.
   "Someone at that end infiltrated the courthouse and intercepted the mailed
 check," he said.  "Someone like a Scientologist."
   The filing fee is very important, Flynn said, because it assures him the
 right to appeal the contempt order.
   "It's ridiculous to think I wouldn't pay a $60 filing fee," the Boston lawyer
 continued, adding that he has several deposits at the First National Bank of
 Boston and plenty of money in them.
   "If you check into this in depth, you'll find that something's afoot in
 Volusia County," Flynn went on.  He has noted before the Durden and Scientology
 attorneys are "longtime friends."
  The complaint further alleges that the story conveys "the false and defamatory
 meaning that plaintiff, through its members, had improperly and corruptly
 become involved with the judicial system, had wrongfully interfered with the
 U.S. mails and had stolen from the U.S. mails and the Courthouse."
  Flynn urges that the action must be dismissed chiefly because the allegedly
 libelous statements are, as a matter of law, incapable of being understood as
 referring to the plaintiff. [FN1]

      FN1. The defendant also argues that the statements are expressions of
     opinion and hence not actionable and asserts, in addition, that he was
     privileged to make the statements because they relate directly to a pending
     judicial proceeding.  My resolution of the defendant's first ground for
     dismissal makes it unnecessary to consider these arguments.

  [1] As a preliminary matter, it is necessary to make a choice-of-law.  I
 look to Massachusetts conflict rules to decide which state's law should govern
 this action.  Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61
 S.Ct. 1020, 85 L.Ed. 1477 (1941).  Whether I apply the doctrine of lex loci
 delecti, see Brogie v. Vogel, 348 Mass. 619, 621, 205 N.E.2d 234 (1965), or the
 interests analysis embodied in Restatement (Second) of Conflicts of Law s 1818
 (1971), see Pevoski v. Pevoski, 371 Mass. 358, 360, 358 N.E.2d 416 (1976),
 the result is the same:  Florida law applies.  The publication of the libel
 occurred in Florida;  thus, that state is the place where all the elements of
 the tort alleged were first present.  See Strogoff v. Motor Sales Co., 302
 Mass. 345, 347, 18 N.E.2d 1016 (1939).  Florida contacts also predominate, as
 that state is the place of injury, the place of much of the relevant conduct,
 and the place where the relationship between Flynn and the CSC, at least as far
 as this action is concerned, is centered.  See In Re Air Crash Disaster in
 Boston, Massachusetts on July 31, 1973, 399 F.Supp. 1106, 1111-1112
 (D.Mass.1975).  In any event, however, Florida law provides no precedent
 closely on point.  Therefore, in deciding whether Flynn's statements are
 reasonably capable of being understood as referring to the plaintiff, I look to
 general principles of libel law on the assumption that Florida's law is in
 accord.  Cf. Arcand v. Evening Call Publishing Co., 567 F.2d 1163, 1164 (1st
 Cir.1977) (Where Massachusetts law provided no clear answer to "group libel"
 *268 question, Court of Appeals "proceed[ed] on the assumption that
 Massachusetts law would be in accord with the current state of the authorities,
 i.e., would not occupy an eccentric minority position.").  The parties have
 done the same.
  [2] There is no doubt, under those general principles, that a corporation
 can sue for libel.  See, e.g., Diplomat Electric, Inc. v. Westinghouse
 Electric Supply Co., 378 F.2d 377 (5th Cir.1967) (Florida law).  That right
 extends to not-for-profit corporations like the CSC.  Finnish Temperance
 Society Sovittaja v. Finnish Socialist Publishing Co., 238 Mass. 345, 355, 130
 N.E. 845 (1921);  Restatement (Second) of Torts s 561(b) (1977).
  [3][4] But a corporation, like a private individual, cannot prevail in a
 libel action unless the allegedly defamatory statement was published "of and
 concerning" the corporation.  Gilbert Shoe Co. v. Rumpf Publishing Co., 112
 F.Supp. 228, 229 (D.Mass.1953);  Restatement (Second) of Torts ss 561, 564
 (1977).  Whether a corporation's standing in the community was actually
 diminished is not relevant if the publication at issue did not falsely charge
 the corporation itself with some kind of impropriety:  "One who is not himself
 libelled cannot recover even though he has been injured by the libel published
 concerning another."  Gilbert Shoe Co. v. Rumpf Publishing Co., 112 F.Supp.
 at 229 (officer or stockholder of a corporation who is not personally libelled
 has no right to recover for a libel published of the corporation).  Likewise,
 an allegation that a defendant made a statement, intending to reduce public
 respect for a person does not, in the absence of a libelous charge directed at
 that person, present a triable issue.  Corrigan v. Bobbs-Merril Co., 228
 N.Y. 58, 126 N.E. 260, 262 (1920) ("The question is not so much who was aimed
 at as who was hit.").
  With these general principles in mind, I turn to the central question
 presented by this motion:  whether the defendant's statements are reasonably
 capable of being understood as having been made "of and concerning" the
 plaintiff.  In particular, I must consider whether the defendant's accusation
 that "Scientologists" or " 'someone like a Scientologist' " stole his filing
 fee is capable of being viewed as a libel of the CSC.
  For the purposes of this inquiry, I assume, as the plaintiff asserts, that the
 plaintiff would be able to prove at trial that the CSC is the official branch
 of the Scientology movement most active in Clearwater, Florida.  Thus, I assume
 that a reference that is capable of being viewed as concerning any of the
 Scientology movement's not-for-profit religious organizations would, given the
 facts and circumstances of this case, refer to the CSC.
  [5] Nevertheless, I conclude that the statements here at issue cannot
 support a libel action brought by the CSC.  Flynn's statements assert that an
 individual or, perhaps, a small group of individuals, infiltrated the Volusia
 County courthouse and stole his filing fee.  The statement was directed at an
 individual or a few individuals, not a not-for-profit corporation.  Had the
 defendant said, for example, that it was the practice of the CSC to train its
 members to infiltrate the courthouse, or reward them for doing so, a different
 question would be presented.  But he did not.  His statement was directed at
 the actions of one or a few individual Scientologists, not at the governing
 body of the Church of Scientology most active in the Clearwater area.  Accusing
 members of any religious organization of criminal activity is hardly likely to
 reflect well on the religion's official organs, but the fact that the CSC's
 reputation in the community may have been diminished by virtue of Flynn's
 charges against an anonymous individual or individuals does not vest in CSC a
 right to sue for libel.  That conclusion follows naturally from the established
 principle, noted above, that one who is injured by the libel of another has no
 right of action.  Gilbert Shoe Co. v. Rumpf Publishing Co., 112 F.Supp. at
 229.
  The case law supports the view that this action should be dismissed.  In
 Mullins v. *269 Brando, 13 Cal.App.3d 409, 423, 91 Cal.Rptr. 796, 805
 (1970), cert. denied sub nom. Brando v. Coffman, 403 U.S. 923, 91 S.Ct.
 2231, 29 L.Ed.2d 701 (1971), the actor Marlon Brando alleged that members of
 the Oakland Police Department, motivated by racial animus, shot and killed an
 unarmed member of the Black Panthers who was in the process of surrendering
 peacefully.  The president of the Oakland Police Officers Association sued
 Brando for libel on behalf of his organization.  The court treated the
 president's suit as one brought directly by the association, but held that the
 organization had no right of action.  The court said:
   We recognize, of course, that an unincorporated association, such as the
 OPOA, can be defamed.  The only trouble with OPOA's ability to state a cause of
 action is simply that there is absolutely nothing in any innuendo or inducement
 pleaded which by any stretch of the imagination can be construed as defamatory
 of the organization.
  Id.
  In Michigan United Conservation Clubs v. CBS News, 485 F.Supp. 893
 (W.D.Mich.1980), the named plaintiff and several individual hunters alleged
 that a television broadcast about hunters, part of which had been filmed in
 Michigan, defamed them.  The court ruled that even if it were to assume that
 the broadcast had defamed some individual hunters, "... the indirect injury
 which [the organizational plaintiff] claim[s] to have suffered as a result of
 this would not be compensable."  Id. at 900.
  In addition, in Mikilonski v. Burt Reynolds Production Co., 10 Mass.App.
 895, 409 N.E.2d 1324 (1980) (rescript) the court held that the Polish-American
 Guardian Society had no right to sue the defendant on account of allegedly
 defamatory statements about Poles he made in a motion picture, because the
 society was not "the object of the alleged defamations."  Id.  Like the
 Oakland Police association, the Michigan hunters group, and the Polish-American
 society, CSC fails to state a cause of action:  Flynn's statements refer to
 individual Scientologists, not to the organization they belong to.  See also
 Novick v. Hearst Corporation, 278 F.Supp. 277, 281 (D.Md.1968);  Cohn v.
 National Broadcasting Co., Inc., 414 N.Y.S.2d 906, 909, 67 A.D.2d 140 (1979),
 aff'd, 430 N.Y.S.2d 265, 50 N.Y.2d 885, 408 N.E.2d 672 (1980), cert.
 denied, 449 U.S. 1022, 101 S.Ct. 590, 66 L.Ed.2d 484.
  The cases the plaintiff relies on do not alter this conclusion.  In Neiman-
 Marcus Co. v. Lait, 107 F.Supp. 96 (S.D.N.Y.1952), the court permitted the
 corporate plaintiff to sue for defamatory statements published about its
 employees.  Id. at 101.  The statements at issue there, however, suggested
 that the corporation had intentionally recruited persons of alleged immoral
 character, and the court noted that "... it cannot be said as a matter of law
 that a corporation cannot be damaged in a business way by a publication that it
 employs seriously undesirable personnel."  Id.
  In DiGiorgio Fruit Corp. v. American Federation of Labor, 30 Cal.Rptr. 350,
 355, 215 Cal.App.2d 560 (Dist.Ct.App.1963), the court permitted a corporation
 to sue, but the facts indicate clearly that the publication in question
 referred to the plaintiff, as a corporation (if not by precise name), and
 criticized it as such.  Finally, in Sullivan v. Affiliated Publications, 8
 Med.L.Rptr. 1654 (Mass.Super.Ct.1982), another case in which a corporate libel
 plaintiff was allowed to proceed, the article referred frequently to the names
 by which the corporate plaintiff is popularly known. [FN2]

      FN2. I have also reviewed those cases which address the "of and
     concerning" question in the context of suits brought by the CSC or another
     official branch of the Scientology movement.  In California Church of
     Scientology v. Cazares, 638 F.2d 1272 (5th Cir.1981), the allegedly
     defamatory remarks were clearly addressed at the CSC itself.  In Church
     of Scientology v. Adams, 584 F.2d 893 (9th Cir.1978), the court, despite
     its suggestion "... there is serious doubt that the articles refer to the
     [CSC]," did not reach the "of and concerning" question on the merits.  And
     in Church of Scientology v. Siegelman, 481 F.Supp. 866 (S.D.N.Y.1979),
     the court did not quote the language which it concluded raised a factual
     question regarding whether the plaintiff official branches of the
     Scientology movement, including the CSC, has been defamed.  Again, then,
     these cases do not in my judgment alter the analysis above.

  *270 [6][7] Although the plaintiff appears not to raise the matter
 specifically, I have also considered the question whether the CSC may bring a
 libel action derivatively on behalf of its members.  It is settled that a not-
 for-profit organization may sometimes sue to vindicate its members' rights.
 See, e.g., Church of Scientology of California v. Cazares, 638 F.2d 1272,
 1279 (5th Cir.1981).  But in order to do so in a libel action, those members
 must have rights which they could assert in an individual action.  Id.;  see
 also Michigan United Conservation Clubs v. CBS News, 485 F.Supp. at 900.
 Here, no individual Scientologists possess such rights.  Arcand v. Evening
 Call Publishing Co., 567 F.2d at 1164-65.  Therefore, the CSC may not sue
 derivatively.
  Accordingly, because the defendant's statements are not capable of being
 understood as having been made "of and concerning" the plaintiff, the
 defendant's motion to dismiss for failure to state a claim is granted.
  SO ORDERED.

End of file...