IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA
GENERAL CIVIL DIVISION
ESTATE OF LISA MCPHERSON, by and through the Personal Representative, DELL
Plaintiff, Case No.: 00-5682-CI-11
VS. Division 11
CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS JOHNSON, ALAIN KARTUZINSKI
and DAVID HOUGHTON, D.D.S.,
AND RELATED COUNTERCLAIM.
CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION'S
CONSOLIDATED MEMORANDUM IN OPPOSITION TO
PLAINTIFF'S MOTION FOR SANCTIONS OF DEFAULT JUDGMENT
ON LIABILITY ON THE FIFTH AMENDED COMPLAINT AND
FINAL DEFAULT JUDGMENT ON THE COUNTERCLAIM, AND
IN SUPPORT OF CROSS-MOTION FOR AN EVIDENTIARY
HEARING, FOR ISSUANCE OF AN ORDER TO SHOW CAUSE FOR
CONTEMPT AGAINST PLAINTIFF'S COUNSEL, FOR AN AWARD OF
COSTS AND COUNSEL FEES AGAINST PLAINTIFF'S COUNSEL,
FOR AN ORDER CONFIRMING THAT THE COUNTERCLAIM IS
NOW "UNABATED" FOR ALL PURPOSES, AND FOR AN
ORDER TO "UNSEVER" THE COUNTERCLAIM FOR TRIAL
On February 3, 2003, plaintiff's
counsel, Kennan Dandar (''Dandar'') filed
Plaintiff's Motion for Sanctions of Default Judgment on Liability on the Fifth
Amended Complaint and Final Default Judgment on the Counterclaim (the
seeking a default judgment against Church of Scientology Flag Service Organization
("Flag") on plaintiff's wrongful death claim and a default judgment
against Flag and in favor of plaintiff on Flag's counterclaim. For the reasons
set forth herein, Flag submits:
1) The Default Motion is dismissible on its face for several reasons so that
Flag ought not be obliged to file any evidentiary matter in opposition; and
instead, an order to show cause for contempt directed against Dandar, plus an
award of costs and counsel fees incurred on this motion by Flag, ought issue,
and Dandar be referred to the Florida Bar;
2) To the extent this Court views the Default Motion as properly before it
on the merits, Flag notes: that the motion contains nothing but a series of
unsworn allegations; that it is not supported by any affidavit; that it seeks
to relitigate the precise same baseless accusations upon the exact same "evidence,"
as this Court rejected in its January 13 Order; that Flag therefore ought not
be obliged to present evidence in support of its "defense" of unsworn,
meritless accusations, particularly ones made by Dandar; and that if this Court
were of a mind to address the merits of the Default Motion, Flag requests an
evidentiary hearing at which Dandar, as the moving party, would first present
his "evidence" to support his accusations and Flag would then, if
necessary, present its evidence in defense;
3) Given that this Court has now effectively "unabated" the counterclaim,
Flag seeks an Order confirming that the counterclaim has been "unabated"
for all purposes;
4) Given the circumstances now existing, Flag seeks an Order to "unsever"
counterclaim and to provide that the counterclaim be tried along with plaintiff's
claims in one trial, before one jury.
In his August 19, 2002 written Closing
Argument on Flag's Omnibus Motion, Dandar devoted thirty (30) pages to
his request that Flag and its counsel be sanctioned for bringing that
motion, the sanction to include an award of costs and counsel fees (see
Closing Argument, at pp. 73-107). That request was denied by this Court
in its January 13, 2003 Order, which stated, clearly and unmistakably
(at p. 67):
ORDERED AND ADJUDGED that Plaintiff's suggestion in her closing argument that
sanctions should be awarded to her is denied.
Despite this ruling, on February 3 Dandar filed the Default Motion, again
seeking sanctions for the Omnibus Motion, on essentially the same "facts"
and accusations as he presented both at the Omnibus hearing and in his
Closing Argument.1 In fact, as is readily apparent from the Default Motion,
Dandar there presents the very same accusations of "threats"
and "extortion" of Minton, principally by Flag's attorneys,
as he advanced in the Omnibus hearing.
Further, virtually every "fact" Dandar puts forth in his Default
Motion was presented and argued by him in the Omnibus Motion. In short,
the Default Motion is nothing but an instant replay of the exact same
motion he had made
1 Indeed, eight pages of the present Default Motion appear
to be copied almost verbatim from Dandar's Closing Argument. Compare pp.
5, 6, 11-18 of the Default Motion with pp. 73-78, 84, 85, 87, 93-95, 97
of Dandar's Closing Argument.
earlier. Moreover, Dandar, as is his wont, presents his Default Motion as if
these very accusations had not already been ruled upon by this Court in the
Omnibus Motion, as if he, Dandar, unhappy with a judicial determination, has
the right to ignore it, to eschew filing for a writ, and start all over again.
Flag thinks not. Dandar's filing of the redundant - and expressly prohibited
-Default Motion demonstrates that the $100,000 sanction imposed upon him by
the Texas federal court for filing redundant motions was insufficient to dissuade
him from again engaging in that exact same misconduct. Similarly, the prior
instances in which Dandar was cited for misconduct by the Florida Bar, including
being remitted to "Ethics School," were obviously insufficient to
compel him to comport his conduct to the professional obligations of a Florida
attorney and to refrain from filing redundant, baseless motions, not to mention
ignoring Court Orders.
Respecting the appropriate remedy for this Court to impose upon Dandar for his
redundant motion, Flag is constrained to note that this Court has bent over
backwards to protect Dandar, a member of the Florida Bar, even to the point
of imposing regressive, rather than progressive, discipline upon him. For example,
despite that Chief Judge
2 In its January 13 Order (at pp. 35-36), this Court ruled
that Dandar's principal witness on his wrong-headed allegations, Prince,
was not credible, that Ms. Yingling's refutation of Dandar's accusations
was "quite credible," and that neither Ms. Yingling nor anyone
in her presence (which includes Mr. Rosen) had engaged in any blackmail
or extortion. Brazenly, these very same rejected accusations of misconduct,
principally by Yingling and Rosen, are reprised in the Default Motion.
Kovachevich had held Dandar to have violated Rule 11, Fed. R. Civ. P. (the federal
equivalent of Fla. Stat. §57.105), by filing a pleading in bad faith with
no good faith basis to believe the facts he pleaded, despite that the federal
court then imposed substantial monetary sanctions upon Dandar for that misconduct,
despite that the United States Court of Appeals for the Eleventh Circuit then
unanimously affirmed (see Baker v. Alderman, 158 F.3d 516 (11th Cir. 1998)),
and despite that violation of Rule 11 (or §57.105) is itself a violation
of the Florida Code of Professional Conduct,3 when Dandar committed the exact
same misconduct here in clear violation of § 57.105 and Florida Rule of
Judicial Administration 2.060(c) alleging that Mr. Miscavige made a specific
decision and ordered that Lisa McPherson be left to die,4 this Court found that
Dandar had no basis in fact for that allegation,5 but nevertheless, instead
of imposing progressive discipline upon Dandar, excused his conduct 6 and let
him off the hook with the admonishment not to do it again,
3 See, Affidavit of Kevin Tynan, Exhibit 1, p. 2 hereto.
See also The Florida Bar v. Richardson, 591 So.2d 908 (Fla. Oct. 31, 1991)
(attorney suspended for 60 days for violating Rule 11).
4 A pleading about which the Court observed, "It's
clear as a bell, you might as well have said murder." (June 5, 2002
hearing, at p. 569.)
5 In the Court's words, "Are there any facts-proof-that
Mr. Miscavige decided to let Lisa McPherson die? The answer in a word
is 'NO."' (January 13, 2003 Order, at p. 6.)
6 The Court's failure to impose any meaningful discipline
on Dandar on the basis that despite having no evidence to support his
murder allegation, he did not engage in misconduct, cannot be reconciled
with its findings that "it must have been obvious [to Dandar] that
Prince had no facts upon which to base his opinion ...." (Order,
at pp. 8-9.) Nor can the absence of meaningful discipline be justified
by Dandar's attempt to
and the "hope [that] he has learned his lesson and does a better job in
the future." Dandar has now done it again. His Default Motion not only
pleads accusations of misconduct by Flag's attorneys which this Court has previously
rejected and for which Dandar therefore has, by definition, no good faith basis,
but he has also engaged in the same improper and unethical conduct of redundant
motion practice for which he had been sanctioned $100,000 by the Texas court.7
Progressive discipline for this offense too is now in order. Indeed, this Court
is obliged to itself report Dandar's unethical conduct in filing his Default
Motion to the Florida Bar. See Code of Judicial Conduct, Canon 3(D)(2).
This Court has, most admirably, proclaimed that it is "a proud member
of the Florida Bar" (January 13 Order, p. 17), but as such, it ought rile
at the conduct of another member of that Bar, Dandar, who, if anything, could
serve as the Bar's poster boy for bad behavior in that only that portion of
his unenviable professional record presently known to Flag includes:
establish, post haec, some facts to support his pleading by calling witnesses
other than Prince because it is clear under Florida law (identical to
federal law) that competent evidence of the material facts must be known
to counsel before making an allegation in a pleading; he may not plead
an allegation in the hope that some facts may emerge later to support
it. See, e.g., Davis v. Bill Williams Air Conditioning and Heating, Inc.,
765 So.2d 114, 115 (Fla. 1st DCA 2000); Sykes v. St. Andrews School, 625
So.2d 1317, 1318 (Fla. 4th DCA 1993).
7 An attorney who engages in "unreasonable"
and "vexatious" litigation practices, as the Texas court found
Dandar to have done, violates the Florida Code. See Exhibit 1.
1) a determination by the Bar that Dandar's conduct "was not consistent
with the high standards of our profession." (Exhibit 2 hereto);
2) a second determination by the Bar respecting Dandar's conduct that
included remitting him to "Ethics School" and imposing a $750
charge on him (Exhibit 3 hereto); the aforementioned determination by Chief
Judge, Kovachevich, affirmed by the Eleventh Circuit, of Dandar's violation
of Rule 11, Fed. R. Civ. P.;
4) the aforementioned Orders of the Texas federal court imposing
almost $100,000 in sanctions under 28 U.S.C. § 1927 for
"unreasonable" and "vexatious" litigation tactics (Exhibits
5) the January 10, 2003 Order of Judge Baird
finding Dandar to be
lacking in credibility and referring him to the Bar for unethical
In short, this Court aside (or rather, alone), two members of the Florida Bar
Grievance Committee, a total of five federal judges, plus another judge of this
Court - in all, eight "judges" - have all found Dandar to be ethically
wanting. He does not warrant the protection of any "proud member of the
Inexplicably, despite the foregoing, instead of denying the Default Motion
hand and imposing sanctions upon Dandar for its filing, on February 18, this
Court orally invited Flag to respond to the Default Motion. But the bad faith
pleading and disregard of this Court's prior rulings are not the only fatal
infirmities in Dandar's Default Motion; it seeks the relief of a default judgment
respecting Flag's counterclaim. And although Minton is a party to that counterclaim,
Dandar's own service certification attached to his Default Motion shows that
he did not even bother to serve a copy of his motion on Minton. It is of course,
black letter law, that all parties to a proceeding are entitled to receive all
papers filed in that proceeding, regardless of whether a particular motion seeks
relief against all parties or only some parties. 8 This Dandar did not do. Yet,
here again, despite this obvious and fatal flaw in the Default Motion, this
Court has not summarily denied it. 9 But there is more.
By Order dated September 19, 2002, this Court abated all proceedings on the
counterclaim (over Flag's initial objections that were reluctantly withdrawn
only when the Court conditioned a necessary trial continuance upon Flag's withdrawal
of said objections),10 and provided specifically that "no ... motion practice
... relating to the
8 Moreover as a co-defendant on Flag's counterclaim, Minton
certainly has a substantial interest in whether his co-defendant (the
plaintiff) is dismissed from the counterclaim, leaving him alone to defend
9 Indeed, it is inexplicable that this Court invited
Flag to respond but did not even advise Minton's counsel of this motion,
let alone invite him to respond.
10 As shown in the transcript of the August 20, 2002
hearing, the Court first took up the matter of defendants' motion for
the continuance of trial and stated there was no
counterclaim issue shall be filed ... without prior leave of Court ...."
Ironically, it is this very Order, this very specific directive, that this Court
relied upon in its January 27, 2003 Order denying Minton's motion to disqualify
this Court, i.e., that Minton had not first sought leave of court to file that
recusal motion, as required by the September 19, 2002 Order. Yet, again, inexplicably,
when Dandar blatantly and contumaciously violated the September 19 Order by
filing his Default Motion seeking "Default Judgment on the Counterclaim"
(emphasis added), without first seeking, let alone obtaining, leave to do so,
this Court's only response was to invite Flag to file an opposition.11 Instead,
an Order to Show Cause should issue directing Dandar to show why his filing
of the Default Motion is not an act of contempt of the September 19 Order.
By not summarily denying Dandar's Default Motion in the face of the September
19th Order despite this Court's earlier, rigorous enforcement of it against
Minton, this Court has effectively set aside the abatement of the counterclaim.
And since that abatement has been set aside to allow Dandar to file his Default
Motion, it follows that
reasonable way that the scheduled September trial date could go forward.
(August 20, 2002 hearing, at pp. 27-29.) Then, the matter of the abatement
of the counterclaim arose and the Court asked counsel their position on
it. (Id., pp. 39-41.) When Flag's counsel did not accede to this Court's
stated desire to abate, this Court's response was: "[I]f I'm going
to be inundated, I might as well be sitting here trying this case ...."
(Id., p. 42.) Faced with this threat that trial would go forward immediately,
Flag's counsel was obliged to withdraw its objections. (Id., p. 43.)
11 Flag is unaware of any motion by Dandar for leave
to file his Default Motion or, of any Order of this Court granting such
leave. Surely, neither could have occurred ex parte, without Flag's knowledge.
this Court should now issue an Order confirming that the September 19 Order
need not be followed any longer and setting it aside for all purposes. After
all, it hardly seems fair or appropriate that all of the parties hereto and
their respective counsel are required to comply with the September 19 Order
except for Dandar.
Further, as the record shows, the reason the Court issued the September 19
abatement Order was its desire that discovery and motions respecting the counterclaim
not impede final preparations for trial of the wrongful death claim. That circumstance
no longer exists. Except for perhaps a handful of short depositions, all discovery
on the wrongful death claim has been completed so that during the next at least
four and half months (if not longer) until trial of that case, discovery and
motion practice respecting the counterclaim can proceed and complete without
any interference with the wrongful death
Similarly, this Court should also formally set aside its February 1, 2002 Order
granting Dandar's motion to sever the counterclaim, again, over Flag's objections.
First, to the extent the severance was granted so that proceedings in the counterclaim
12 In view of the Second DCA's February
19, 2003 Order deferring Minton's motion to disqualify while the counterclaim
remains abated, this Court will surely appreciate that were it to continue
the abatement (and the severance) now, particularly in view of the facts
set forth herein, it would, even unintentionally, create a compelling
appearance that it has done so solely in order to continue to avoid facing
Minton's motion on the merits. And given the black letter principle that
no judge has any right or interest to remain on any given case, the appearance
created by continuing the abatement (and severance) will be most problematic.
impede the wrongful death trial, that circumstance no longer exists.
Second, if Dandar himself, the proponent of the severance motion, has now seen
fit to seek relief from this Court on the counterclaim and to thereby abandon
the supposed protection of the severance order, he can hardly be heard to complain
or to assert any need for a continuance of the severance.
Third, as this Court has itself ruled (January 17, 2002 hearing transcript,
at pp. 37-38), some of the very evidence pertinent to the counterclaim will
also be pertinent and admissible in the wrongful death trial.13
In these circumstances, to continue the counterclaim as severed and to thus
require that much of the same evidence be presented twice - and to two separate
juries to boot - is intolerable. Under Florida law, to afford the parties complete
relief in one trial, to avoid expense and inconvenience and to avoid inconsistent
verdicts, separate trials of claims and counterclaims are disfavored. Travelers
Express, Inc. v. Acosta, 397 So.2d 733, 737 (Fla. 3rd DCA 1981); Yost v. American
National Bank, 570 So.2d 350, 352-53 (Fla. lst DCA 1990)("[w]here the evidence
to be submitted on plaintiff's cause of action
is the same as, or is interrelated with, the evidence on the counterclaim, it
is appropriate to try the claims together."), citing, American National
Bank of Jacksonville v. Norris,
13 Just by way of one single example out of many, when
Dandar calls his paid apostate witness, Prince, as a witness in the wrongful
death trial, the counterclaim issues of Prince's purchased testimony,
Minton's funding, etc., are clearly going to be used for impeachment.
368 So.2d 897 (Fla. 1st DCA), cent. denied, 378 So.2d 342 (Fla. 1979); Plantation
Village Limited Partnership of Sanibel v. Aycock, 617 So.2d 729, 732 (Fla. 2nd
DCA 1993)(reversing severance precluding trier of fact from considering facts
inextricably interwoven with issues presented in affirmative defense and counterclaim);
Maris Distributing Co. v. Anheuser-Busch, Inc., 710 So.2d 1022, 1024 (holding
it was improper to sever counterclaim and affirmative defenses where facts underlying
claims are interwoven, noting single trial lessens delay and expense and that
severance is appropriate only in furtherance of justice).
Fourth, recognizing the overlap of evidence, and the fact that the law disfavors
separate trials, particularly where, as here, there will be an overlap of evidence
and witnesses, this Court has itself postulated that it ought undo the severance
Order and reconsolidate the wrongful death claim and the counterclaim for trial.
(See, May 13, 2002, transcript, at pp. 714-715.)
Fifth, it appears that the one salient reason this Court originally granted
severance was Dandar's claim - and this Court's concurrence -that Dandar would
be a witness in the trial of the counterclaim and therefore, absent severance,
he would be disqualified as counsel in the entire case.14 Apart from the fact
that this additional protectionism of Dandar was inappropriate because a court
may not use severance just to insulate an
14 See this Court's statement at p. 94 of the transcript
of the July 17, 2002
proceedings. See also, this Court's statements at p. 117 of the transcript
of the December 18, 2002 hearing.
attorney against disqualification, that is now a non-issue. In addition to
the fact that Mr. Lirot has appeared as counsel for the estate here and
has long ago confirmed that if Dandar is disqualified, he, Lirot, will
be ready for trial (July
9, 2002 transcript, p. 586), Flag and the other defendants have now
determined that they will not call Dandar as their witness in a unitary
trial of the counterclaim and the wrongful death claim, nor will they
seek his disqualification as counsel on that basis were he to take the
witness stand. Thus, all concerns respecting severance have now been alleviated."
Indeed, we note from Dandar's original severance motion dated January
9, 2002, that this issue, which has now been resolved, was the sole basis
put forth by Dandar for severance of the counterclaim and that this was
the sole factor in this Court's mind in recently weighing whether to revoke
the prior severance (May 13, 2002 transcript, at pp. 714-715; December
18, 2002 transcript, at p. 117).16
The Sixth reason for "unsevering" is the extreme prejudice this Court's
January 13 Order has imposed upon Flag in its defense of the wrongful death
claim. Specifically, that Order referred Minton for perjury prosecution to the
State Attorney, and, in addition,
15 With the defendants' disclaimer, Flag presumes that
this Court will not take the extraordinary, if not unprecedented, step
of itself disqualifying Dandar sua sponte.
16 This Court did, however, also ruminate that were the
matters reconsolidated for one unitary trial, Flag's trial counsel, Mr.
Rosen, might also need to be disqualified, apparently in the belief that
he is a witness on the counterclaim issues (p. 117 of December
18, 2002 hearing). While there was no motion to disqualify Mr. Rosen
at the time of this Court's observations and while none is pending now,
Flag notes that this Court's comments were plainly incorrect; Mr. Rosen
is not even a percipient witness, let alone a material witness, to any
of the facts or events asserted in the counterclaim.
threatened him with contempt if prosecution was declined. In consequence, it
would be foolish to ever hope that Minton, with these swords hanging over him,
would ever voluntarily return to Florida to testify as a mere witness for Flag
in its defense of the wrongful death claim - this Court has itself assured that
result, thus depriving Flag of an important defense witness. However, were the
counterclaim reunited with the wrongful death claim for trial, Minton would
not so easily have that option because as a party rather than a mere witness,
he would be exposed to serious repercussions for his absence, thus making it
more likely he would appear and, at the same time obviating a disruption of
In the face of this Court's own prior rulings and Dandar's contempt of the September
19 abatement Order, it is unconscionable for Dandar to be permitted to reiterate
his scurrilous accusations of misconduct by Flag's counsel, to do so via unsworn
statements, and to then impose upon Flag and its several counsel the obligation
to yet again refute same, by affidavit. Let Dandar present his accusations properly,
by evidence, at a hearing, and be subject to cross-examination before Flag and
its counsel are obliged to defend the indictment and again prove their innocence.
17 E.g., if the severed wrongful death claim proceeds
to trial while these swords still remain over Minton's head, and if he
therefore refuses Flag's request to voluntarily appear as a trial witness,
Flag would be obliged to move, at the appropriate time, for a mistrial.
WHEREFORE, Flag requests an Order which:
1) denies Dandar's Default Motion (or, in the alternative, schedules an
evidentiary hearing on its allegations);
2) imposes progressive disciplinary sanctions upon Dandar for its filing;
3) directs Dandar to Show Cause why he should not be held in contempt of the
September 19 abatement Order;
4) refers Dandar to the Florida Bar for his ethical misconduct in filing his
5) confirms the de facto circumstance that by not summarily denying the
Default Motion, this Court has itself vacated the September 19 abatement
Order, and which formally vacates said Order for all purposes; and
6) vacates the February 1, 2002 Severance Order and directs that there will
one unitary trial of both plaintiff's claims and Flag's counterclaims.
DATED: February 28, 2003
Samuel D. Rosen
75 East 55th Street
New York, NY 10022-3205
Eric M. Lieberman
STANDARD, KRINSKY &