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)




               Nancy McLEAN and John McLean, Her Son, Plaintiffs,
                                       v.
          The CHURCH OF SCIENTOLOGY OF CALIFORNIA, et al., Defendants.
                              No. 81-174 Civ. T-K.
          United States District Court, M. D. Florida, Tampa Division.
                                 March 16, 1982.
  Nonresidents moved to quash or dismiss the effect of constructive service upon
 them in diversity action for malicious prosecution, abuse of prosecution, and
 invasion of privacy.  The District Court, Krentzman, Chief Judge, held that
 plaintiffs had met burden of alleging and sufficiently establishing material
 facts to support constructive service of process under Florida long-arm
 statute, and defendants had failed to present clear and convincing proof that
 service was invalid.
  Ordered accordingly.

 [1] FEDERAL COURTS
 A plaintiff must state sufficient facts in complaint to support reasonable
 inference that defendant can be subjected to jurisdiction within the state.

 [2] FEDERAL CIVIL PROCEDURE
 If allegations of jurisdictional facts are challenged with affidavits or other
 evidence, plaintiff must then establish by opposing affidavit, testimony or
 documents, those material facts supporting allegations which would
 justify service of process under long-arm statutes.  West's F.S.A. s 48.181.

 [3] FEDERAL CIVIL PROCEDURE
 A defendant must show invalidity of service of process by clear and convincing
 proof before being entitled to order granting motion to quash.

 [4] CONSTITUTIONAL LAW
 In order for state to subject nonresident to its jurisdiction, nonresident must
 have certain minimum contacts with it such that maintenance of suit does not
 offend traditional notions of fair play and substantial justice.
 U.S.C.A.Const.Amend. 14.

 [4] FEDERAL COURTS
 In order for state to subject nonresident to its jurisdiction, nonresident must
 have certain minimum contacts with it such that maintenance of suit does not
 offend traditional notions of fair play and substantial justice.
 U.S.C.A.Const.Amend. 14.

 [5] FEDERAL CIVIL PROCEDURE
 Plaintiffs who, in diversity action against church and others for malicious
 prosecution, abuse of prosecution, and invasion of privacy, alleged that church
 was agent of nonresidents rather than that nonresidents were merely nonresident
 officers of resident corporate church, and who submitted affidavits and
 documents refuting nonresidents' official status in church, were not required
 to establish personal involvement by nonresidents as officers to support
 service of process upon nonresidents under Florida long-arm statute.  West's
 F.S.A. s 48.181.

 [6] FEDERAL COURTS
 Evidence was sufficient to indicate "concealment" within meaning of Florida
 statute providing that acceptance of privilege of engaging in business in State
 by person who is resident of state and who subsequently becomes nonresident or
 conceals his whereabouts constitutes appointment of Secretary of State as agent
 for service of process, in view of significant evidence that nonresidents were
 once residents, certified mailings to various known addresses of nonresidents,
 organized effort on part of persons within church alleged to be nonresidents'
 agent to hide whereabouts of key personnel and key documents, and church's
 employment of nonresidents' attorney to assert nonresidents' right to privacy
 and seclusion.  West's F.S.A. s 48.181.
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [7] FEDERAL COURTS
 Inquiry as to whether nonresident has accepted privilege to engage in business
 in state to support service of process under state's long-arm statute concerns
 nature, not extent, of a defendant's activities in state.  West's F.S.A. s
 48.181.

 [8] FEDERAL COURTS
 Continuous and systematic activities provide reasonable basis for assertion of
 jurisdiction under Florida long-arm statute.  West's F.S.A. s 48.181.

 [9] FEDERAL COURTS
 Commercial transaction for pecuniary benefit is not necessarily required for
 assertion of jurisdiction under Florida long-arm statute.  West's F.S.A. s
 48.181.

 [10] FEDERAL COURTS
 In diversity action for malicious prosecution, abuse of prosecution, and
 invasion of privacy against church and others, plaintiffs had met burden of
 alleging and sufficiently establishing material facts to support constructive
 service of process upon nonresidents under Florida long-arm statute, and
 nonresidents had failed to present clear and convincing proof that service was
 invalid, where file was replete with support for allegations that resident
 corporate church and nonresidents were closely connected, file supported
 allegations that nonresidents were concealing themselves, exhibits and
 deposition indicated substantial business in state, including purchasing of
 property, underlying suit by church against plaintiffs was in state and sought
 pecuniary award of $300,000, and it concerned statements plaintiffs made in
 state about church's operations in state.  West's F.S.A. s 48.181.
  *546 Walt Logan, St. Petersburg, Fla., and Tony Cunningham, Tampa, Fla.,
 for plaintiffs.
  *547 Bennie Lazzara, Jr., P.A., Tampa, Fla., for P. Lisa.
  Howard J. Stechel, A. Thomas Hunt, Taylor & Roth, Los Angeles, Cal., Gary S.
 Brooks, Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, Fla.,
 Lawrence E. Fuentes, Fuentes & Kreischer, P.A., Tampa, Fla., for Church of
 Scientology.
  Michael L. Kinney, Tampa, Fla., for M. Wolfe.
  Alan Goldfarb, Miami, Fla., for L. Ron and Mary Sue Hubbard.
  Carl E. Kohlweck, Grey & Kohlweck, Santa Monica, Cal., for P. Lisa.
  Barrett S. Litt, Los Angeles, Cal., for Mary Sue Hubbard.
                                      ORDER

  KRENTZMAN, Chief Judge.
  This cause came on for hearing on January 7, 1982 upon the motion of
 defendants L. Ron Hubbard and Mary Sue Hubbard to quash or dismiss the effect
 of constructive service upon them.  The Court has considered the pleadings, the
 matters in the file, memoranda and argument of the respective counsel, the
 relevant Florida statute and relevant caselaw, and upon the findings
 hereinafter made, is of the opinion that the motion to quash should be denied
 and that plaintiffs have obtained effective service of process upon said
 defendants.
  This is a diversity suit for malicious prosecution, abuse of prosecution, and
 invasion of privacy.  The law of Florida is applicable.  The other defendants,
 including the Church, for purposes of this motion, have been served.  On
 September 8, 1981 plaintiffs filed an affidavit of compliance with Florida
 Statute 48.181, which in relevant part is as follows:
   48.181 Service on nonresident engaging in business in state
   (1) The acceptance by any person or persons individually, or associated
 together as a copartnership or any other form or type of association, who are
 residents of any other state or country, and all foreign corporations, and any
 person who is a resident of the state and who subsequently becomes a
 nonresident of the state or conceals his whereabouts, of the privilege extended
 by law to nonresidents and others to operate, conduct, engage in, or to carry
 on a business or business venture in the state, or to have an office agency in
 the state, constitutes an appointment by the persons and foreign corporations
 of the secretary of state of the state as their agent on whom all process in
 any action or proceeding against them, or any of them, arising out of any
 transaction or operation connected with or incidental to the business or
 business venture may be served.  The acceptance of the privilege is
 signification of the agreement of the persons and foreign corporations that the
 process against them which is so served is of the same validity as if served
 personally on the persons or foreign corporations.
  [1][2][3] A plaintiff must state sufficient facts in the complaint to
 support a reasonable inference that the defendant can be subjected to
 jurisdiction within the state.  Wright & Miller, s 1068 p. 250. If the
 allegations of jurisdictional facts are challenged with affidavits or other
 evidence, the plaintiff must then establish by opposing affidavit, testimony or
 documents, those material facts supporting the allegations which would justify
 service of process under the long-arm statutes.  McNutt v. General Motors
 Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); International
 Graphics, Inc. v. MTA-Travel Ways, Inc., 71 F.R.D. 598 (S.D.Fla.1976);
 Underwood v. University of Kentucky, 390 So.2d 433 (Fla. 3 DCA 1980).  A
 defendant must show invalidity of service by clear and convincing proof before
 being entitled to an order granting a motion to quash.  Travelers Insurance
 Co. v. Davis, 371 So.2d 702 (Fla. 3 DCA 1979).
  Plaintiffs allege, in summary, that the Hubbards controlled the Guardian's
 Office of the Church of Scientology of California, and that it took the alleged
 actions against plaintiffs in Florida for the purpose of realizing *548 a
 pecuniary benefit.  They allege the Hubbards were residents of Florida in late
 1975 and early 1976, during which time the actions complained of arose, and
 that the Hubbards have become non-residents and are concealing their
 whereabouts.  It is clear that such allegations support a reasonable inference
 of jurisdiction over the Hubbards.
  Defendants, however, challenge these allegations with an unsworn statement
 indicating the Hubbards' independence of the Church of Scientology of Florida,
 an affidavit stating their similar independence of the Church of Scientology of
 Boston, two affidavits which tie the Hubbards to Florida as of early 1976 and
 confirm their leaving Florida thereafter, and an affidavit by the President of
 the Church of Scientology of California disclaiming any connection by Ron
 Hubbard with the Church other than as Founder and Author since 1966.  No
 personal affidavits of the Hubbards were submitted.
  The plaintiffs respond with exhibits and deposition excerpts supporting
 jurisdiction.  The issue for the Court is whether plaintiffs' evidence
 sufficiently establishes those material facts supporting jurisdictional
 allegations in order to overcome defendants' counter evidence and to justify
 service of process under Florida's constructive service statute.
  Construction of the Florida long-arm statutes
  [4] The constitutional standard set by the U.S. Supreme Court for
 enforcement of state long-arm statutes is that in order for a state to subject
 a non-resident to its jurisdiction, the nonresident must have certain "minimum
 contacts with it such that the maintenance of the suit does not offend
 traditional notions of fair play and substantial justice."  International
 Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 158, 90 L.Ed. 95
 (1945).  Above this threshold due process standard, states vary in the extent
 to which they allow long-arm jurisdiction to extend.  The Fifth Circuit has
 noted varying trends in Florida courts' construction of the statutes. While it
 applied a liberal interpretation of the state's statute in Rebozo v.
 Washington Post Co., 515 F.2d 1208 (5th Cir. 1975), on other occasions it has
 held that the statute should be strictly construed.  See, e.g., Spencer Boat
 Co., Inc. v. Liutermoza, 498 F.2d 332 (5th Cir. 1974); Costin v. Olen, 449
 F.2d 129 (5th Cir. 1971).  Even if the statute is strictly construed, the Court
 finds that plaintiffs' evidence supporting allegations of jurisdiction herein
 outweighs defendants' counter evidence and justifies constructive service in
 Florida pursuant to Fla.Stat. 48.181.
  Persons associated together
  The first issue is whether plaintiffs' allegations that the Hubbards are "any
 person or persons individually, or associated together as a copartnership or
 any other form or type of association" are sufficiently supported.
 Significantly, plaintiffs allege that the Church was agent of the Hubbards,
 rather than that the Hubbards were merely non-resident officers of the resident
 corporate Church.  Defendants submit affidavits and documents refuting the
 Hubbards' official status subsequent to 1966.
  [5] Thus plaintiffs are not required to establish personal involvement by
 the Hubbards as officers.  See Wright & Miller, Sec. 1068; Escude Cruz v.
 Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir. 1980).
  The file is replete, however, with support for the allegation that the Church
 and the Hubbards are closely connected, including the following:
  Plaintiff's allegations that the Hubbards controlled the Guardian's Office of
 the Church is corroborated by the findings in (U.S. v. Heldt ) United States
 v. Hubbard, et al, 668 F.2d 1238 (C.A.D.C.1981).  (Exhibit B to plaintiff's
 opposition to defendant Lisa's motion for protective order filed October 15,
 1981.  The indictment there covers the same general time span as this case.)
 The Court of Appeals found the Hubbards to be the first and second highest
 officials in the Scientology organization.  Id. at 1243.
  *549 Defendant Lisa was with the Guardian's Office for the Church in
 Florida for thirteen years.  His deposition, taken October 20, 1981 and
 submitted as an exhibit, reveals that Mary Sue Hubbard supervised the
 Guardian's Office as Commodore Staff Guardian (CSG) and, as such, was sent
 reports as late as 1981 (pp. 17-20).  Numerous documents attached to the
 deposition show a copy sent to CSG.
  L. Ron Hubbard received mail addressed to him through the Church's office in
 Florida, according to the Church's Standing Order No. 1, in effect until
 January 21, 1981.  He still receives gifts via the Church according to revised
 Standing Order No. 1 of the Church, and messages from him are printed regularly
 in Church publications.
  The fact that the Church has paid for the representation of the Hubbards'
 attorney is corroborative of an association between Hubbards and the Church.
 (See e.g., Goldfarb deposition, p. 19).
  There is significant evidence that the Hubbards were once residents and are
 now non-residents.  Defendants themselves submitted affidavits by Vickie Mead
 and Kenneth Urquhart stating that Mary Sue and L. Ron Hubbard were in Florida
 between December, 1975, and June and February, 1976, respectively.  Both
 affidavits state they have not been in Florida since.  The numerous efforts to
 serve the Hubbards at the best address known to plaintiffs indicate that the
 Hubbards are no longer residents of this state.
  Further, the file as a whole supports the allegations that the Hubbards are
 concealing themselves.  The file is full of certified mailings to various known
 addresses of the Hubbards, including that given by the Church representative
 returned as non-deliverable.  The same is true of attempts at service of the
 Hubbards in 80-501 Civ T-K (hereinafter referred to as the "Burden" case) which
 is another case pending before this court with similar defendants, and counsel
 on both sides.
  The Court of Appeals opinion confirms such projects as "red box", an organized
 effort on the part of persons within the Church to hide the whereabouts of key
 personnel and key documents.  Exhibit 3 to Lisa's deposition is "Operation
 Bulldozer Leak", the stated purpose of which is to spread the rumor that L. Ron
 Hubbard has no control of the Church and no legal liability for it.  To the
 extent that the Church is shown to be Hubbard's agents, these are efforts of
 concealment attributable to him.
  Relative to the deposition in this case of Hubbards' attorney, plaintiffs in
 the Burden case filed a motion to compel on October 27, 1981.  In the Church's
 response to that motion, the Church represented that one of the major
 objectives of the employment of Hubbards' attorney is to "assert his
 (Hubbard's) right to privacy and seclusion".  Moreover, the Hubbards' attorney
 has refused to answer questions concerning the Hubbards' whereabouts or
 representatives' contacts with him, claiming such information was given to him
 in confidence, in spite of this Court's ruling elsewhere in this case and in
 the Burden case that such information is not protected by the attorney-client
 privilege.
  [6] These comprise corroborative and supportive evidence of the Hubbards'
 efforts and intent to conceal themselves.  Accordingly, the file herein
 presents a showing sufficient to indicate concealment under Florida law.
 Cortez v. N.Y. Capital Group, Inc., 401 So.2d 1163 (Fla. 3 DCA 1981).
  Carrying on a business venture in Florida
  The Court is of the opinion that the plaintiffs have adequately supported
 their allegation that the Hubbards, through their agent the Church, accepted
 "the privilege to operate, conduct, engage in or carry on a business or
 business venture in Florida, or to have an office or agency in the state."
  [7][8][9] The inquiry concerns the nature, not extent, of a defendant's
 activities in the state.  Florida courts have shown a willingness to liberally
 construe "business venture" under Fla.Stat. 48.181.  Continuous and
 systematic activities provide a reasonable basis for the assertion of
 jurisdiction.  Ford Motor Co. v. Atwood Vacuum Machine *550 Co., 392
 So.2d 1305 (Fla.1981).  A commercial transaction for pecuniary benefit is not
 necessarily required. Participating in the proceeds of an uncle's estate has
 been held to be a business venture, McCarthy v. Little River Bank & Trust
 Co., 224 So.2d 338 (Fla. 3 DCA 1969), as has contracting with an in-state
 hospital for services.  Maryland Casualty Co. v. Hartford et al, 264 So.2d
 842 (Fla. 1 DCA 1972).
  The file contains numerous documents and articles as to the extent of the
 activities of the Church of Scientology of California in Florida and the effect
 thereof.  The exhibits attached to the defendant Church's motion for change of
 venue, and the Lisa deposition and its exhibits indicate substantial business
 in the state, including the purchasing of property.  In addition, the
 underlying suit by the Church against the plaintiffs which gave rise to the
 instant complaint was in Florida and sought a pecuniary award of $300,000.
  Arises out of the business venture in Florida
  Finally, the plaintiffs have met the burden of adequately alleging and praying
 that this suit arises "out of (a) transaction or operation connected with or
 incidental to the business or business venture."  The underlying suit
 complained of was brought by defendants against plaintiffs in Florida.  It
 concerned statements plaintiffs made in Florida about the Church of Scientology
 of California's operations in Florida.
  [10] Upon consideration of the file as a whole, including but not limited to
 the particular evidence reviewed above, the Court is convinced that plaintiffs
 have met the burden of alleging and sufficiently establishing those material
 facts which support constructive service of process in Florida pursuant to
 Fla.Stat. 48.181.  The requirements of the statute having been met,
 plaintiffs' constructive service of L. Ron Hubbard and Mary Sue Hubbard through
 the Secretary of State of Florida has been accomplished.  Further, defendants
 have failed to present clear and convincing proof that the service is invalid.
 Accordingly, defendants' motion to quash is DENIED.
  At hearing, defendants moved for certification of the Court's order pursuant
 to 28 U.S.C. s 1292(b).  That motion was, and is, GRANTED.  The Court is of
 the opinion that this order involves a controlling question of law as to which
 there is substantial ground for difference of opinion, of which an immediate
 appeal would materially advance the case.
  Subsequent to the hearing, but prior to this order, the Hubbards each filed a
 motion to dismiss and for reconsideration on January 27, 1982, to which
 plaintiffs have responded.  The Hubbards have joined in each others motion, and
 ask the Court to reconsider its denial of the motions to quash at hearing,
 explained herein.  The argument by defendants is essentially that presented
 previously on the motion to quash.  The motions are DENIED for the reasons
 given herein.
  Defendants raise the new argument, however, that plaintiffs failed to allege
 diversity jurisdiction in that the citizenship of the Hubbards is not alleged.
 Plaintiffs allege that the Hubbards were once Florida residents, have become
 non-residents of Florida, and are concealing their whereabouts.
  The diversity statute provides for jurisdiction between "citizens of a State
 and foreign states or citizens or subjects thereof."  28 U.S.C. s
 1332(a)(2).  Plaintiffs are Canadian citizens.
  The Court hereby waives the Local Rule requirement of filing a complete,
 amended pleading, and grants leave to plaintiff to file an amendment to the
 amended complaint with jurisdictional allegation within 10 days of this
 order.  28 U.S.C. s 1653.

End of file...