Scientology FLAG's Consolidated Memorandum in Opposition to Plaintiff's Motion for Sanctions

28 February 2003


ESTATE OF LISA MCPHERSON, by and through the Personal Representative, DELL LIEBREICH,

Plaintiff, Case No.: 00-5682-CI-11
UNC: 522000CA005682XXCICI
VS. Division 11





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 "Default Motion"),


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" the


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. 2
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 4 &
hereto); and

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 Florida Bar."

Inexplicably, despite the foregoing, instead of denying the Default Motion out of


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 it.

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
trial. 12

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 would not
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 trial.17

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
Default Motion;

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 be
one unitary trial of both plaintiff's claims and Flag's counterclaims.

DATED: February 28, 2003

Respectfully submitted,

Samuel D. Rosen
75 East 55th Street
12th Floor
New York, NY 10022-3205
Telephone: XXX

Eric M. Lieberman


To Life and Death of Lisa McPherson