Scientology's Opposition to add new parties in McPherson case

Hillsborough County, Florida

Date: Mon, 25 Oct 1999 15:27:50 +0200 (CEST)
Message-ID: <>
From: Anonymous <>
Subject: Scieno Opposition to add new parties in McPherson case-1/2
Newsgroups: alt.religion.scientology

ESTATE OF LISA McPHERSON, by and through the Personal Representative, DELL


V.        CASE NO.: 97-01235
        DIVISION: "H"





Plaintiff has filed a motion for leave to amend and to add new parties which
is a direct breach of a contractual stipulation executed by plaintiff and her
counsel nearly two years ago. Pursuant to that agreement, to which plaintiff
amazingly does not even refer in her moving papers, plaintiff agreed not to
attempt to add to this litigation the very parties whom she now seeks leave
to add as defendants. (Exh. A, Stilo Aff., 2 and Exh. I  thereto) That
agreement is dispositive and controlling, and itself requires that the
plaintiff's motion be denied for the reasons stated in Point I of the
Argument section of this memorandum. The court need go no further in deciding
the instant motion.

There are, in addition, other important and significant jurisprudential
considerations which compel denial of the instant motion. The motion, and its
supporting papers, are the latest and most dramatic evidence that this case
is no longer, if it ever was, about providing some degree of reasonable
compensation to the family of Lisa McPherson for her alleged wrongful death.
Indeed, Ms. McPherson's mother died prior to the institution of the lawsuit,
and this case has been pursued nominally by Ms. McPherson's more distant
relatives who never maintained any meaningful relationship with her. The
wrongful death statute was not intended to provide "windfalls to [such]
distant relatives." Florida Law Review Commission, Recommendations and Report
on Florida Wrongful Death Statute at 8 (December 1969).

Nevertheless, this case has proceeded in the name of these distant relatives
on the pretense that they controlled the litigation and personally sought
compensation, windfall or not. That pretense can no longer be maintained.
Rather, control over the instant litigation has been seized by a small,
active and wealthy group of anti-Scientologists who are intent on using the
litigation as a club to inflict grievous damage upon the Scientology religion
and the churches and leaders associated with it. The group includes several
former Scientology officials - including Jesse Prince and Stacy Young - who
were removed from their positions by present church leadership precisely
because they engaged in acts that were either unlawful or contrary to
Scientology principles. (Exh. A in Support of Motion to Strike Affidavit of
Jesse Prince, Weiland Aff. 9, 10; Exh. B in Support of Motion to Strike
Affidavit of Jesse Prince,Rinder Aff., 11) Whether these former officials now
seek vengeance, tribute, or both, they have been funded to an extraordinary
degree - ie., hundreds of thousands of dollars - by Boston mega-millionaire
Robert Minton, who has poured even greater resources into this case, and has
promised to pour millions more. (Exh. B, Minton Posting, Dec. 1, 1998; Exh. T
in Support of Motion to Strike Prince Aff., Minton posting dated October
17,1998) And it is by dint of Mr. Minton's influence that plaintiff s
attorney, unburdened by any real client,/1 has focused his fire with
increasing intensity on maligning the religion and its leadership with
grossly irresponsible, false, and totally unsupportable charges of a violent
nature -including the latest outrageous allegation that not only the current
defendant, but the entire international church leadership, purposely murdered
Lisa McPherson.

The reasons for this massive, and massively funded, effort at character
assassination through the litigation process is a question to which we shall
turn momentarily. First, we summarize the clear legal and equitable grounds
why the plaintiff s motion should be denied, grounds which are addressed more
fully in the legal argument section of this memorandum:

1 . As already stated, the plaintiff stipulated and contracted in writing
with FSO that plaintiff would not seek to add precisely these parties to the
lawsuit. That stipulation, in essence a partial settlement delimiting the
scope of this case, although not previously filed with the Court, is fully
and properly judicially enforceable. Indeed, the court should not use its
process to further plaintiff s attempt to breach her stipulation and
contractual obligations.

/1 Plaintiff has acknowledged that she knows little or nothing about the
course or conduct of the litigation, but has left the matter entirely to the
discretion of her attorney, whose generous fees and expenses are paid by
Minton. (Exh. C., Liebreich Dep. Tr., pp. 169-171, 175-1,76, 210-211.)
Indeed, plaintiff apparently has little or no remaining financial interest in
the case; Minton has testified that he induced her to agree to donate any
potential recovery from this case to an antiScientology organization, which
Minton presumably would control. (Exh. D, Minton Dep. Tr., pp. 64-66) As
Minton further testified, he views his support of this lawsuit as an
investment upon which he expects a return. (M., Minton Dep. Tr., pp. 46-47)

2. Amendment to add new parties is grossly untimely, will add years to the
litigation of the case, and will greatly prejudice FSO because of the
significant increase in the costs and burdens of litigation.

3. Plaintiff's purported factual basis for adding new parties - the
declaration of Jesse Prince - demonstrates that plaintiff in fact has no bona
fide good faith factual basis for her proposed amendments. Prince was not
even a church member at the time of the events inquestion, and had been
removed from any position of responsibility for ecclesiastical reasons as
long ago as 1987. (Exh. A to Motion to Strike Prince Aff., Weiland Aff., 110;
Exh. B to Motion to Strike Prince Aff., Rinder Aff., 19) He has no evidence
to present to support his charges. His declaration consists of nothing more
than rank speculation of the worst kind, spurred on by his ideological motive
and the lucre of Minton. As a defrocked Scientology minister (Exh. A to
Motion to Strike Prince Aff , Weiland Aff., I 10; Exh. B to Motion to Strike
Prince Aff., Rinder Aff., 111), he certainly is in no position to give
"expert" testimony on anything concerning the Scientology religion, let alone
his "opinion" on what specific communications and actions others might have
taken eight years after he was removed from any position of ecclesiastical
responsibility precisely because he undertook actions that were contrary to
religious policy and scripture. Moreover, his speculation is utterly without
evidentiary or factual support. To permit amendment on the basis of Prince's
facially incompetent, speculative, inadmissible and demonstrably false
declaration would further no legitimate litigation interest, would permit
plaintiffs attorneys and financiers to use the litigation for an improper and
abusive purpose, would impose massive new litigation costs and delays, and
ultimately would be futile.

4. Amendment additionally would be futile because the proposed complaint
against the new parties clearly would be barred by the two-year statute of
limitations applicable to wrongful death actions. Plaintiff alleges that the
proposed new parties received reports of Ms. McPherson's purportedly
deteriorating condition and issued orders to let her die. These are
allegations of wrongful death, pure and simple. They are barred by the
statute of limitations, and any proposed amendment to add new parties cannot
relate back to the original filing of the complaint Thus, amendment at this
late date would be futile.

These powerful and dispositive grounds in fact demonstrate that the purpose
of plaintiff s effort to add parties - in direct contravention of plaintiff s
prior written stipulation - cannot be based upon any reasonable belief on the
part of counsel that plaintiff ultimately can obtain a judgment against the
new parties. Rather, as we already have suggested, plaintiff s
I apparent goal is to burden the religion's international leadership with
intrusive and ultimately irrelevant depositions, discovery and motion
practice, and, more importantly, to use the litigation to defame the Church
and its leadership with the most highly inflammatory charges, guaranteed to
garner lead headlines and a prominent place on the evening news.

The attempt to lynch the reputation of the religion and its leadership arises
from the fact that, to the apparent horror of Mr. Minton and his group of
anti-Scientology associates, the religion of Scientology generally and Church
of Scientology FSO in particular have achieved growing success in putting to
rest past public fears and misconceptions about Scientology. Thus, for
example, Scientology churches are now recognized as legitimate tax exempt
churches not only by the Internal Revenue Service but by state and local
jurisdictions, including Florida. (Exhs. E-H; Exh. P, Florida Department of
Revenue Certificate of Exemption) The United States State and Justice
Departments have acted to protect the religious free exercise rights of
Scientologists in foreign countries, including Germany and Sweden. (Exhs.
I-J, photographs of Congressional hearing on Religious Intolerance in Europe
Today; Exh. Q, 1997 State Department Report re: Germany, pp. 5-6; Exh. R,
Excerpt from 1999 US Trade Representative Report re: Sweden) National and
even local media have begun to treat Scientology and Scientology leaders with
growing respect and acceptance. (Exhs. M and L) And, nationally and locally,
government and civic leaders have met with officials of several churches of
Scientology on a friendly and cooperative basis to help plan future actions
and developments, recognizing that the church is now a permanent fixture of
society and part of the community, with a positive and productive role to
play. (Exh. L, local media; Exh. 0, Story Aff. at 118-20)

That a central public role in these developments has been played by David
Miscavige, the Chairman of The Religious Technology Center, can be no secret.
The press has prominently presented favorable interviews of Mr. Miscavige,
and has reported his role in positive meetings with national and local
government and civic officials. (Exhs. K and L) He has achieved a reputation
for honesty and credibility that directly contradicts the dark and negative
picture of Scientology that anti-Scientology ideologues such as Minton seek
to portray. Hence it has become necessary for such ideologues to attempt to
destroy the credibility and reputation of the religion by attacking Mr.
Miscavige in the vilest of terms. Mr. Minton and his paid witness, Mr.
Prince, have been moving forces behind this effort.

Lest the Court think that these comments are themselves mere hyperbole or
speculation, we have submitted documentation showing that both Prince and,
even more so, Minton, have made a point of attacking Mr. Miscavige, even to
the extent of publicly stating their goal is to single him out for attack and
opprobrium. Thus, when Prince made his videotaped obscene threats to Mr.
Miscavige nearly one year ago, which the Court already has observed, he
openly threatened that Mr. Miscavige would be his target. (Exh. S, Videotape
Transcript Excerpt, November 30, 1998.) This motion and the proposed fifth
amended complaint are apparently what Prince had in mind when he stated,
"Tell David I'm coming . . ." Minton's public comments are even more
explicit. He has stated "I'm going to be in $cientologys' [sic] face from now
on...," and referred to himself as "Scientology public enemy number one."
(Exh. T, Minton Posting, March 12, 1996; Exh. U, Minton Posting, July 22,
1999.) He has paid others to travel from outside the State to Clearwater to
engage in anti-Scientology picketing at FSO's facilities. (Exh. V, Extract
from Internet Relay Chat session) He has called for hanging Mr. Miscavige in
effigy, eliciting responses from others to forget the effigy and do it for
real. (Exh. W, Postings by Minton, "barb" and Garry Scarff.) He has posted
Mr. Miscavige's picture on the Internet, superimposed on a target and called
for putting Mr. Miscavige's "head on a pike." (Exh. X, Minton Posting.)
Minton paid hundreds of thousands of dollars to support the litigation claims
of another former Scientologist, Larry Wollersheim, that Mr. Miscavige
murdered L. Ron Hubbard and his mother-in-law. After Wollersheim made these
outrageous charges, Minton gloated, "I thought that Mr. Wollersheim could use
the money to nail the cults [sic] ass to the floor. Guess, what? I was
right!" (Exh. Y, Minton Posting, November 13, 1997.) (The courts gave these
allegations the back-of-the-hand they deserved.) Minton even telephoned Mr.
Miscavige's mother, and posted her telephone number on the Internet so that
others could harass her, stating, nobody is "off limits" from this point
forward, "[n]ot his mother, his father, his wife, him 1/4." (Exh. Z, Minton
Posting, July 21, 1999.)

The point of this discussion, of course, is not that the Court should do
anything about these public actions by Prince and Minton, or that the Court
should take sides in this one sided dispute./2 Rather, the point is that the
court should not permit its processes to be abused in a bad faith and
unsupportable effort by plaintiff's counsel and his financial angel to

/2 The dispute is "one-sided" in that Mr. Miscavige has not joined in the

collateral goals and purposes. For this motion to amend is, indeed, nothing
less than an unmitigated abuse of process. Plaintiff s counsel knows that he
has no evidence to support his outrageous allegations of murder against the
defendant and the proposed new defendants. He knows that Prince's wild and
incompetent speculations can never be admitted in a court of law. He knows
that the Florida State Attorney, which investigated Ms. McPherson's death for
two years and brought lesser criminal charges against FSO, made no allegation
of intentional homicide or intent to "let Ms. McPherson die" against any
party, let alone against the churches and individuals who had nothing to do
with the, unfortunate events of 1995, but whom plaintiff nevertheless seeks
to drag into this case.

Nevertheless, plaintiff s attorney brought his motion, informed the press of
the charges, and even brought Mr. Prince to the last court hearing, leading
to the circus like media coverage of that hearing, in which the lead story on
the local television newscasts was that Mr. Miscavige had been accused of
causing Ms. McPherson's death. (Exh. AA, Channel 8 News clip, September 13,
1999.) That is what Mr. Minton and his paid co-conspirators, including
plaintiffs counsel, hope to achieve by this motion and, if it were to be
granted, by the subsequent litigation of this case. That is why, in addition
to the dispositive legal grounds to which we now return, this motion should
be denied.



In November 1997, before the strategy was developed to use this case to
pursue broader collateral purposes, plaintiff entered into a binding
contractual agreement (the "Agreement") with the Church of Scientology FSO in
which plaintiff stipulated that she would not seek to include as defendants
in this lawsuit any of the churches and individuals whom she now seeks to add
through her proposed amendment. The stipulation may fairly be characterized
as a partial settlement agreement in which the parties agreed to delimit the
scope of this litigation. Plaintiff undertook to limit the parties to this
litigation. In return, FSO agreed to preserve certain of its assets until the
conclusion of this case. This Agreement was signed by both Dell Liebreich, as
personal representative of Lisa McPherson's estate, and by plaintiffs
counsel, Ken Dandar. (A copy of the Agreement is attached as Exhibit I to the
Affidavit of Glen Stilo, annexed hereto as Exhibit A.) The Church has honored
its obligations under the Agreement. (Exh. A, Stilo Aff., 13.)

In relevant part the Agreement provides:

2. Liebreich shall not amend her complaint to
add, nor otherwise seek to include, as party
defendants in the state court action, any of the
following separate, independent corporations: ...
Religious Technology Center, Church of
Scientology International ... and any officer,
director, agent or employee of the above-referenced

In direct contravention of this proviso of the Agreement, plaintiff is now
"seek[ing] to include" as party defendants the Religious Technology Center
("RTC'), Church of Scientology International ("CSI"), David Miscavige and
Marty Rathbun, both of whom are directors and employees of RTC, and Ray
Mithoff who is an employee of CSI. This Court should summarily deny the
requested amendment to add these parties as defendants and enforce the
parties' stipulation./3

/3 A stipulation concerning the proceedings in a pending cause is an
obligation unlike ordinary contracts between parties not in court, since no
consideration is necessary to its validity, no mutuality is required." Esch
v. Forster, 123 Fla. 905, 912, 168 So.229, 231 (Fla. 1936)(citations
omitted). In any event, there was more than sufficient consideration in that
FSO agreed to maintain 9

"It is well settled in this state that '[a] stipulation properly entered into
and relating to a matter upon which it is appropriate to stipulate is binding
upon the parties and upon the Court." Johnson v. Johnson, 663 So.2d 663,
664-665 (Fla. 2d DCA 1995) (citing Gunn Plumbing, Inc. v. Dania Bank, 252
So.2d 1, 4 (Fla. 1971)). "These principles are in recognition of the value
which stipulations bring to the legal system in terms of simplifying issues,
limiting or shortening litigation, saving costs to the parties, and
preserving judicial economy and resources." Id. (citing Dunscombe v. Smith,
139 Fla. 497, 190 So. 796 (Fla. 1939). In Dunscombe, the Florida Supreme
Court commented on the purpose that such stipulations serve in the litigation

This Court is committed to the rule that it not only approves but
favors stipulations and agreements on the part of litigants and
counsel designed to simplify, shorten or settle litigation and save
costs to the parties, and the time of the Court, and when such
stipulations or agreements are entered into between parties 
litigant or their counsel, the same should be enforced by the court unless
good cause is shown to the contrary.

        Dunscombe v. Smith, 139 Fla. 497, 504, 190 So. 796, 799 (Fla. 1939)
(holding that the plaintiff was precluded from prosecuting an amended
complaint against additional defendants by a stipulation reached with the
original defendant).
        It does not matter that the Agreement here did not wholly settle the
case, or that It was not submitted to the court. This case is still pending
before this Court, therefore, this agreement is fully enforceable by this

Even when not incorporated in a court order, a 
stipulation in writing subscribed by the parties and 
their counsel, which is designed to obviate or delimit
litigation, can and should be enforced by the judge
before whom the case is pending. 

and not alienate its assets.

Naughtin v. Jones, 680 So.2d 573, 575 (Fla. 1stDCA 1996).

"Accordingly, to foster the legal policy of encouraging stipulations to
minimize litigation and expedite resolutions of disputes the law provides
that '[s]uch stipulations should be enforced if entered into with good faith
and not obtained by fraud, misrepresentation, or mistake, and not against
public policy."' Johnson, 663 So.2d at 665 (citing Cunningham v. Standard
Guar. Ins. Co., 630 So.2d 179, 182 (Fla. 1994)); see also EGYB, Inc. v. First
Union Nat 7 Bank, 630 So.2d 1216, 1217 (Fla. 5' DCA 1994) ("[u]nless grounds
for recission. or withdrawal are shown, the trial court is bound to strictly
enforce the agreement between the parties."); Spitzer v. Bartlett Bros., 437
So.2d 758, 760 (Fla. I" DCA 1983) (stipulations "are normally binding on the
deputy, and a finding by the deputy that is at variance with a stipulation
will ordinarily be overturned." (Citations omitted)).

Moreover, "[I]n order to obtain relief against stipulations, the regular
course is not to ignore or attempt to evade it, [as plaintiff has done] but
to make a seasonable and affirmative application by formal motion to the
court, on notice and supported by affidavit for its withdrawal or
revocation." Dunscombe 139 Fla. at 504, 190 So. at 799. Even when an
appropriate application is made, only where the contract is invalid for
reasons such as illegality, fraud, duress, undue influence or mistake will
such an agreement not be enforced. Lotspeich Co. v. Neogard Corp., 416 So.2d
1163, 1164-65 (Fla.3d DCA 1982). Plaintiff does not and cannot in good faith
allege any such facts. Accordingly, the Court should enforce the Agreement by
denying the motion to amend, at least to the extent that it seeks to add new

Scientology's Opposition to add new parties in McPherson case. Part II

[Hillsborough County, Florida]

Date: Mon, 25 Oct 1999 15:21:00 +0200 (CEST)
Message-ID: <>
From: Anonymous <>
Subject: Scieno Opposition to add new parties in McPherson case-2/2
Newsgroups: alt.religion.scientology

On or about February 19, 1997, plaintiff served her initial complaint in this
action, alleging a single cause for wrongful death against a single
defendant, the Church of Scientology Flag Service Organization (the
"Church'). The Church timely answered the complaint./4 Over the ensuing two
and one-half years, this Court has allowed plaintiff to amend her complaint
on five separate occasions, ultimately adding three individual defendants and
six further causes of action./5

Most recently, at a hearing on July 22, 1999 upon the Church's motion to
dismiss the Fourth Amended Complaint, this Court again permitted plaintiff to
replead certain causes. However, at the hearing, plaintiff's counsel
represented that he was contemplating, "Slim[ming] this [complaint] down
drastically," and the Court warned that "[i]f you slim it down later, you may
be faced with attorneys' fees." (Exh. CC, -1/22/99 at 59.)/6 Moreover,
plaintiff s counsel agreed to strike from his complaint the only paragraph
that made mention of David Miscavige,

/4 The representations to this Court by plaintiffs counsel that "no
responsive pleading has been filed to any of these complaints" is therefore
false. (Compare excerpts from plaintiff s motion to amend and transcript of
the September 13, 1999 hearing with Answer to Complaint; annexed hereto as
Exh. BB.)

/5 Ruling on the Church's various motions to dismiss, this Court has
sustained the dismissal without leave to replead one cause of action, but has
otherwise repeatedly permitted plaintiff to replead defective causes of

/6 In response, Mr. Dandar stated: "So I may slim [the complaint] down
sooner," and this Court
responded: "Well, that's what I suggested." [Id.]

the ecclesiastical leader of Scientology. (Id. at 88_90.)/7

Instead of "slimming down' 'his complaint as promised to this Court, and
eliminating reference to Mr. Miscavige as agreed, plaintiff s counsel now
seeks to file a fifth amended complaint that would add Mr. Miscavige, two
other individuals and two corporations as new defendants, and which makes
reckless and speculative charges that would vastly expand this litigation,
and delay its resolution for years.

Plaintiff has been given ample latitude in amending her complaint. The
liberality of the courts toward amendments rightfully is more restricted the
more often the process of amendment is repeated. This is especially so where
late amendments seek to add new parties or new theories of liability,
necessitating new and complex areas of discovery and new and difficult legal
questions. In such circumstances, the prejudice to existing defendants in
having to relitigate the case basically from square one is sufficient unto
itself to deny amendment.

There is no justification here for a liberal application of the rule in the
face of the dispositive legal impediments the plaintiff would encounter here
to her effort to add new defendants. In Noble v. Martin Memorial Hosp. Assn,
Inc., 710 Soared 567 (Fla. 4th DCA 1997), the trial court denied the
plaintiffs motion to amend his third amended complaint to add injunctive
relief in a case that had been pending almost five years. The ruling was
upheld, and the appellate court noted that "There comes a point in litigation
where each party is entitled to some finality. The rule of liberality
'gradually diminishes as the case progresses to trial."' Id. at 568 (citing
Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977)). In Gladstone v. Smith,
24 F.L.W. D866 (Fla. 4th DCA Mar. 31, 1999), the appellate court upheld
dismissal of even a pro se complaint, citing Kohn v. City of Miami, 611 So.2d
538, 539 (Fla. 3rd DCA 1992) for the rule

/7 In response to the Court's inquiry as to what he "needed" from this
paragraph in the complaint, plaintiffs counsel stated: "I can strike it. I
can strike it. That's fine." [Id.]

that "as an action progresses, the privilege of amendment progressively
decreases to the point that the trial judge does not abuse his discretion in
dismissing with prejudice." Gladstone at D866. The court, again relying on
Kohn, noted that "[w]hile there is no magical number of amendments which are
allowed, we have previously observed that with amendments beyond the third
attempt, dismissal with prejudice is generally not an abuse of discretion."
Id. The Kohn court observed that "There is simply a point in litigation when
defendants are entitled to be relieved from the time, effort, energy, and
expense of defending themselves against seemingly vexatious claims." Kohn at
539 (citing Feigen v. Hospital Staffing Servs., Inc., 569 So.2d 941 (Fla. 4th
DCA 1990)). In Kohn the plaintiff had been given four opportunities to state
a claim, in Feigen, seven.

That point has been reached in this case. The plaintiff is not only
attempting for the sixth time to state claims, but now seeks to bring new
parties into the case as defendants, even though the incident that is at the
center of the claim took place almost four years ago and the case itself has
been pending for over two years, and is currently set for trial on a
five-week trial docket for next June (although the pleadings have not settled
and are not "at issue" on all counts or against all defendants). See also,
Schraw v. Est. ofHester, 693 So.2d 721 (Fla. 5th DCA 1997) (Upholding denial
of a motion to amend complaint after dismissal where attempt would be
futile); and Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3rd DCA 1981)
(upholding the trial court's refusal to allow amendment of the plaintiff s
fifth amended complaint, noting that in addition to the desirability of
allowing amendments to pleadings so that cases may be concluded on their
merits ... [citation omitted], 'there is an equally compelling obligation on
the court to see to it that the end of all litigation be finally reached. .
citing Tuerner v. Trade- Inc., 252 So.2d 383 (Fla. 4th DCA 1971), where the
court adopted a baseball analogy, where "three strikes are out"). The
plaintiff has been swinging away now through the original complaint and four
subsequent amended complaints. The time is at hand when she should be
prevented from further vexatious efforts to harass entities and persons she
and her attorney have previously agreed not to add as defendants.

Even more importantly, the prejudice to FSO of permitting the addition of new
parties and new theories of liability, based upon the mere speculation of an
incompetent witness, would be immense. The events that give rise to this
claim took place nearly four years ago. What the Plaintiff now proposes is
nothing less than an entirely new case, with an attempt to name new parties,
state new legal claims, and develop new evidence resulting in increased
discovery and new legal issues. For example, complex legal issues would be
raised, on the very face of the complaint, concerning the existence and
meaning of church religious policies and scriptures, and of the court's power
(or lack of same) under the First Amendment to conduct a judicial inquiry
into the meaning of such scripture. Plaintiff even appears to suggest that
the court should determine whether and to what extent church officials
departed from doctrine, an inquiry barred by the First Amendment.
Presbyterian Church in the United States v. Mary Elizabeth Hull Memorial
Presbyterian Church, 393 U.S. 440 (1969). The court would also be called upon
to decide to what extent, if any, to permit inquiry into and make
determinations based upon questions of ecclesiastical hierarchy and
communications. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S.
696, 713(1976).

In addition to these new and difficult legal issues, the factual scope of the
case would increase exponentially. Discovery by the parties in this suit has
been underway for some time and is still taking place. As the court is well
aware, discovery has been complex and often contentious with many discovery
issues having been addressed by the court. Witnesses already deposed would
have to be redeposed. New witnesses, many of them out-of-state, likely would
be subpoenaed for deposition. Significant resources of the Defendants would
be expended on truly irrelevant discovery - precisely the expense FSO sought
to avoid with the Agreement. Plaintiff clearly contemplates a wholesale
inquest into the entire Scientology religion, itself raising serious
questions of unconstitutional entanglement by the court into religious

Finally, it is highly likely that if plaintiff is permitted to amend to add
new parties, the new parties and
perhaps the existing defendant would bring counterclaims based upon the
outrageous abuse of process manifested by the proposed fifth amended
complaint. Those counterclaims themselves could bring in yet additional
parties, such as Minton, Prince, and others. It cannot be supposed that the
proposed new parties could ignore the invented lies and speculation that
underlie the pending motion, and the collateral purposes that plaintiff s
attorney seeks to pursue.         

For these reasons, the court should not permit the plaintiff to amend to add
the new parties.


Leave to amend should be denied where amendment would be futile. The rule is
applied in many contexts, and is upheld repeatedly when the amendment offers
nothing to advance the cause, as would be the case here. For example, in
Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982), the appellate court
reversed a judgment establishing a mechanic's lien because the trial court
had allowed a contractor to amend his complaint when his noncompliance with
the statutory notice provision in the time allowed by law rendered the
amendment futile. See, also, Mardan Kitchen Cabinets, Inc. v. Bruns, 312
So.2d 769 (Fla. 3rd DCA 1975), affirming the trial court's refusal to grant
leave to amend when it was clear the notice requirement had not been met.

Here, amendment to add the proposed new parties ultimately would be futile
for two significant reasons.

First, as already shown, plaintiff has no legitimate good faith basis to make
his claims against the proposed new defendants. Plaintiff's reliance on the
raw speculation of the bought and paid for Jesse Prince is the very
definition of futility. Prince hardly can qualify as an expert on a religion
when he was removed from any position of responsibility in that religion over
twelve years ago (and eight years before the events at issue in this case)
precisely because he misapplied and attempted to alter church doctrine and
scripture. Clearly, Prince's understanding of what acts are proper within the
Scientology religion and the Church's understanding have been at odds for
many years prior to the events of this case./8 Equally dispositive, Prince's
"expert" opinion consists of nothing more than his musings about
communications and decisions that he conjectures would have been made by
others. While Prince's "evidence" certainly is of the type and quality used
to convict witches in Salem, Massachusetts in 1692 (see A. Miller, The
Crucible (1952)), under no conceivable circumstances could Prince's
incompetent speculations provide a basis for a modem judicial determination
that the proposed new defendants had anything to do with the events of this
case, let alone that they ordered Ms. McPherson's murder./9 See, Campbell v.
Salman, 384 So.2d 1331, 1333 (Fla. 3rd DCA 1980) (Affidavit based on
information and belief rather than personal knowledge was not admissible into
evidence and should not have been considered by trial court); CSX
Transportation Inc. v. Pasco County, 660 So.2d 757 (Fla. 2d DCA 1995)
(Affidavits which merely cited general familiarity, but provided no basis for
ultimate conclusions and were not based on personal knowledge, were not
considered by the court on issues pending before the court for summary
judgment). See FSO's Motion to Strike Declaration of Jesse Prince, and
Memorandum in Support thereof.

/8 Indeed, the First Amendment prohibits the Court from accepting Prince's
description of the Scientology religion and rejecting the Church's: "It is
for religious bodies themselves, rather than the courts ... to define, by
their teachings and activities, what their religion is." Holy Spirit Ass'n v.
Tax Comm., 450 N.Y.S.2d 292, 298 (1982).

/9 In addition to all the other reasons Prince's declaration cannot be
credited, Prince's rank speculation that church officials would have chosen
to permit McPherson to die because of fear of a purported public relations
"flap" is absurd on its face. As events have shown, and as would have been
readily foreseeable, the death itself, whatever its cause, has created the
most one-sided negative publicity imaginable.

Plaintiff has no other evidence to support his outrageous claims. Especially
when considered in light of the other grounds upon which the proposed
amendment should be denied, including the delay, the prejudice to FSO, and
the stipulation of partial settlement, the futility of the amendment demands
that the motion be denied.

The second reason amendment would be futile is that the claims against the
new parties are clearly barred by the two year statute of limitations
applicable to wrongful death actions. Fl. Stat. § 95.11 (4)(d). The entire
basis for the claims plaintiff wishes to assert against the new parties is
that, according to Prince, the new parties ordered the current defendant,
FSO, to "let" Ms. McPherson die. This claim, outrageous as it is, sounds
exclusively in wrongful death, and thus is barred by the statute.

Nor would amendment, if permitted, "relate back" to the original filing of
the complaint. Pursuant to Florida law, generally, the addition of a new
party to an action will not relate back to the original complaint. See
Johnson v. Taylor Rental Center, Inc., 458 So.2d 845, 846 (Fla. 2nd DCA 1984)
("[flhe rule which permits the relation back of amended pleadings" to correct
misnomers "does not apply where an entirely new party is added"); Troso v.
Florida Ins. Guar. Ass'n, 538 So.2d 103 (Fla. 4th DCA 1989); Lindsey v. H.H.
Raulerson Jr. Mem 7 Hosp., 505 So.2d 577 (Fla. 4th DCA 1987) (amended
complaint in medical malpractice action which did not merely correct misnomer
or misdescription of party but instead added another physician as a totally
separate party did not relate back to date of initial complaint); Louis v.
South BrowardHosp. Dist., 353 So.2d 562 (Fla. 4th DCA 1977) (relation back is
inapplicable where effect is to bring in new parties); Frankowitz v. Propst,
489 So.2d 51 (Fla. 4th DCA 1986)(because physician did not share "identity of
interest" with his colleagues and professional association, amended
complaint, which added him as a party defendant in medical malpractice
action, did not relate back to original complaint); Michelin Reifenwerke,
A.G. v. Roose, 462 So.2d 54 (Fla. 4th DCA 1984) (company sued sufficiently
independent of company sought to be added so as to preclude relation back);
Garrido v. Markus, Winter and Spitale Law Firm, 358 So.2d 577 (Fla. 3d DCA
1978) (relation back applies only where there has been a misnomer);

In this case there was no misnomer,/10 rather the Plaintiff is attempting to
add totally separate parties. Here, these potential defendants were
identified and intentionally not named in the initial complaint by any
description. The relation back rule, therefore, should not be applied in this

The statute of limitations defense is apparent from the motion the plaintiff
has filed and from her  Amended complaint. Consequent , the court is
warranted in denying her motion now, since the claim is time-barred and
futile for that reason alone. In Scott v. Hertz Corp., 722 Sold 231 (Fla. 2nd
DCA 1998) the trial court denied a motion for leave to amend to state a claim
for negligent entrustment for having rented a car to a driver under 25. The
appellate court affirmed the ruling, holding that the court did not abuse its
discretion because the amendment did not state a cause of action, and would
thus have been futile. The same rule would apply to an attempt to add parties
against whom a claim would be time-barred. In Johnson v. Taylor Rental
Center, Inc., 458 So.2d 845 (Fla. 2nd DCA 1984), the plaintiffs in a
negligence action attempted to add a franchisee of the' defendant franchi sor
as a party defendant, after the statute of limitations had run. The lower
court dismissed, finding that the amendment

/10 The court's statements in Garrido are, equally applicable here: "Black's
Law Dictionary, as: revised fourth edition defines "misnomer" ""mistake in
name; giving an incorrect name to person in accusation, indictment, pleading;
deed or 
other instrument." We are convinced that no "mistake" occurred, or rather,
the only mistake occurring was that ofjudgment.  To permit, a substitution at
this point would be tantamount to introducing "new parties" into the lawsuit
and, as has been cited above, such is not the nature of the "relation back"
doctrine." Garrido, 358 So.2d at 582-583.

came too late and was not just an effort to correct a misnomer, but to add an
entirely new party, thus did not relate back and was time-barred. Similarly,
see, e.g., Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th
DCA 1978); Garrido v. Markus, Winter & Spitale Law Firm, 3 58 So.2d 577 (Fla.
3rd DCA 1978); and West Volusia Hospital Authority v. Jones, 668 So.2d 635
(Fla. 5th DCA 1996) (all finding that amendments to complaints to add or
substitute parties that are filed under the statute of limitation has run on
a cause of action are barred).


Wherefore, the Defendants respectfully request that the Plaintiff's Motion to
Amend to Add Additional Parties be denied.

		Respectfully submitted,
Of Counsel:
Rabinowitz, Boudin, Standard,	Florida Bat o. 0486401
Krinsky & Lieberman, P.C.       LEE FUGATE
740 Broadway,

5th Floor	                Florida Bar No. 0 170928
New York, NY 10003	        Zuckerman, Spaeder, Taylor & Evans, LLP
Ph: (212) 254-1111	        401 E. Jackson Street, Suite 2525
Fx: (212) 674-4614	        Tampa, FL 33602
		                Ph: (813) 22 1 -1010
		                Fx: (813) 223-7961

740 Broadway, 5th Floor
New York, NY 10003
Ph: (212) 982-9870
Fx: (212) 674-4614

Counsel for Defendant Church ofScientology
Flag Service Organization


Life and Death of Lisa McPherson