garcia v. scientology: plaintiff's bench memo

8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo

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UNITED STATE DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMP A DIVISION

LUIS

A

GARCIA SAZ and Wife,

MARIA DEL ROCIO BURGOS

GARDIA,

Plaintiffs,

vs.

CHRUCH OF SCIENTOLOGY

RELIGIOUS TRUST, et al ,

Defendants.

CASE NO: 8:13-CV-220-T27 TBM

PLAINTIFFS BENCH MEMORANDUM

Plaintiffs, LUIS

A

GARCIA SAZ and MARIA DEL ROCIO BURGOS GARCIA, by

and through their undersigned attorneys, respectfully file this Bench Memorandum in Opposition

to

Defendants Motion

to

Compel Arbitration.

I

PRELIMINARY STATEMENT

The evidence shows that there are

no

procedures for conducting arbitration and that the

rules o the Committee o Evidence cannot apply

to

arbitration. This arbitration is , therefore,

procedurally unconscionable.

An arbitration by a declared person, such as the Garcias, before a panel

o

three

Scientologists in good standing cannot possibly be fair because o the policies o the Church o

Scientology, which make such procedures inherently unfair. The arbitration procedure is ,

therefore, substantively unconscionable.

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 1 of 13 PageID 3223


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Contrary to Defendants' belief, this Court - not the Church - must decide the initial

question o arbitrability. See Riley Manufacturing Co . Inc v. Anchor Glass Container Corp

157 F.3d 775, 779 1Oth Cir. 1998). Indeed, Defendants' motion to compel arbitration cannot be

won by prohibiting the Court from exercising its inherent power to decide its own jurisdiction.

II LEGAL MEMORANDUM

On October 17,

20

13, this Court ordered the Defendants

to

provide proof that there were

existing written procedures governing Scientology arbitration. [DE 89] On October 24, 2013,

Defendants filed a response that The Church o Scientology International Justice Chief (IJC)

has ruled that the procedures and rules governing the Committee

o

Evidence apply in arbitration

proceedings. [emphasis added] [DE 91]

That statement was simply untrue.

On September 24, 2014, this Court entered an Order requiring Defendants to provide

evidence that the Chief Justice had ruled that the Committee o Evidence rules applied

to

arbitration. [DE 131]

Defendants filed a sworn declaration o Mike Ellis which did not tell the Court how or

when he had ruled a year earlier that the rules o the Committee

o

Evidence applied to

arbitration. Instead, Ellis indicated that he had recently received a request for arbitration. [DE

132] That is not the same point.

t

is undisputed that there has never been a single arbitration in the history

o

the Church.

t

is also undisputed that this was the first request for arbitration that had ever been made. [Ellis

39: 19]

Plaintiffs requested every document that surrounded the recent request for arbitration and

were provided with a redacted letter o September 30, 2014, written six days after this Court's



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Order requiring that the Defendants provide evidence of the alleged ruling by the International

Justice Chief a year earlier.

In the deposition

of

Mike Ellis, the International Justice Chief who filed the Declaration

insisted he could not remember any

of

the facts surrounding the recent request for arbitration

other than the fact that the person requesting arbitration was a Scientologist. (Ellis 55 :20, 58:9,

60:9, 61:5) When presented with an unredacted copy of the September 30, 2014letter written to

Mr. Jonathan Ramsay, who is not a Scientologist, Ellis recanted his testimony to avoid

prosecution for perjury. (Ellis 69:2)

The true facts are that Mr. Ramsay has never been a Scientologist and was requesting the

return

of 17

,000.00 that his father had paid to take Scientology courses which were never taken

because his father died prior to being able to

take those courses. (Ellis 75:20) Defendants failed

to provide the documents that showed they had denied Mr. Ramsay s claim in May 2013 , and

that they never contacted him until three days after this Court s September Order. At that time,

he received an unsolicited request for his physical address

so

that the IJC could send the letter in

question. (Ellis 92:17

In his deposition, Mr. Ellis claimed that the prior ruling referred to in Defendants

response related to a casual conversation he had had with a person who asked him out of

curiosity what rules applied to arbitration and he responded that the rules of the Committee of

Evidence applied. (Ellis 46:8) There is no record of any kind concerning that conversation and

the Defendants have failed to call the only witness who could confirm it. (Ellis 200: 19 Mr. Ellis

never mentioned this supposed ruling in his declaration even though it was filed by the

Defendants to attempt to comply with this Court s Order of September 24, 2014, requiring

Defendants to

provide all evidence that

he

had ruled on this issue. t is patently obvious that the



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Defendants have attempted

to

create an illusion in order to back up the false statement they made

to this Court that the IJC had ruled that the Committee

of

Evidence Rules applied

to

arbitration.

The enrollment agreement itself specifically says that the rules that apply to arbitration

are only the procedure that is set forth in the agreement. The enrollment agreement states in

paragraph 6( e):

Any dispute, claim or controversy which still remains unresol ved after

review by the IJC shall be submitted

to

binding religious arbitration in

accordance with the arbitration procedures

of

Church

of

Scientology

International, which provide that: .. . . [emphasis added]

There is absolutely no mention of the rules of the Committee of Evidence. Defendants' attempt

to apply the rules ofthe Committee of Evidence to arbitration is unavailing.

Under the enrollment agreement, it is clear that: (i) the arbitration procedure is binding,

(ii) there are three members chosen by the parties , and (iii) there

is

no appeal or approval

necessary. (Ellis

106:20

136:6).

Under the Rules

of

Committee of Evidence, the finding is only a recommendation and is

not final until approved by an employee of Scientology, there are four to six members, including

a chairman, who doesn't vote unless there is a deadlock, the members are chosen by an employee

of Scientology and the parties cannot object to the membership. The Committee of Evidence

only deals with offenses and their only findings can only be guilty, not guilty, or a mitigation

of

sentence. The findings are reviewable through several layers

of

hierarchy. (Ellis 106:20 - 136:6).

Defendants' premise in their brief is that the Committee

of

Evidence rules state, This

system is for use in all matters

of

justice in Scientology. (Defendants' brief, Page 2). They fail

to tell the Court that the word justice is defined in the book Introduction

to

Scientology

Ethics which Mr. Ellis swore in his declaration that:

5

The ecclesiastical justice procedures

of

the Church

of

Scientology are understood by all members

of

the religion

to

have been set down



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as policy by the Founder,

L

Ron Hubbard and are contained in the book, INTRODUCTION TO

SCIENTOLOGY ETHICS.

That book defines justice s When the individual fails to put in his own ethics, the group

takes action against him and that is called justice. The rules o the Committee o Evidence and

the procedure in the enrollment agreement are polar opposites so that the Committee o Evidence

rules cannot possibly apply to arbitration. There simply are no rules and no way that an

arbitration could be conducted.

A person who has been declared suppressive, like the Garcias, has no chance o

convincing three Scientologists in good standing that they should prevail against the Church .

The deposition o Mr. Ellis, s well s other witnesses

to

be called by the Plaintiffs, shows that

all three arbitrators, because they are Scientologists in good standing, would have

to

believe that

the Garcias are guilty o a high crime, are not able

to

do the prerequisites

to

arbitration, have no

rights under Scientology, cannot believe a word the Garcias say, believe that the Garcias are

psychotic or are like Communists, Fascists or criminals, and would themselves be subject to ex-

communication

i

they found against the Church. (Ellis 195:8). Under no stretch o the

imagination could three Scientologists in good standing be fair or impartial and the procedure is

substantively unconscionable.

While the agreement purports to bind the Garcias, there is nothing in it which binds

Scientology. In fact, their policies specifically provide that Scientology retains the right to sue

the Garcias notwithstanding the arbitration agreement. (Ellis 189: 18).

Defendants spend much o their brief attempting to impeach Mike Rinder on an irrelevant

subject,

i.e.

whether Mike Rinder was responsible for creating the arbitration clause in the

enrollment agreement. Long ago Plaintiffs told defense counsel that the issue o the intent o the



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Church in drafting the arbitration agreement is completely irrelevant and that there is no

intention

to

call Mr. Rinder on that subject. In fact, Mr. Rinder, during the course

of

his

employment with the Church, was the head

of

the Church s world-wide legal matters for more

than

2

years. (Affidavit of Michael Rinder, 4; DE 133). He could testify about conversations

he had with Mr. Drescher about the intent of the arbitration agreement and that it was considered

as a joke with no intention that it be enforceable. (Depo. of Mike Rinder, Page 67:21; 70:11 ).

However, the plain fact is that this is entirely irrelevant. f the intent

of

the Church was that the

arbitration be fair but, it turns out that it is completely unconscionable both procedurally and

substantively, than it is unenforceable regardless

of

the Church s intent. On the other hand,

if

the

Church s intent was nefarious but they provided rules for the arbitration s implementation, and

the arbitrators were impartial and neutral, than the arbitration agreement would be enforceable

notwithstanding the Church s intent.

Defendants spend much of their memorandum discussing first amendment principles yet

their motion to compel arbitration states that they are not seeking a ruling on First Amendment

issues at this time. Whether the Complaint states a proper cause

of action for return of funds

solicited by false and misleading practices and whether the First Amendment protections apply

are irrelevant distractions on this motion

as neither are currently before the Court. Defendants

attempt

to

tum this dispute into a First Amendment battle but the Defendants cannot cite

to

a

single case that says the First Amendment prohibits this Court from judging whether arbitration

is unconscionable.

Much of Defendants brief relates

to

Mr. Garcia s understanding of the Scientology

ethics and justice system and specifically the rules of the Committee of Evidence and that Mr.

Garcia must have known what

he

was signing. The problem is that what he was signing had



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absolutely nothing

to

do with the Committee

o

Evidence or the Scientology ethics and justice

system procedures. The enrollment applications were just that, applications for enrollment

in

Scientology courses. The very purpose

o

those agreements was for Plaintiffs

to

receive specific

religious services. Plaintiffs are not seeking the return o the funds paid for those services. This

is a claim for fraud, violations

o

Florida Deceptive and Unfair Trade Practices Act, and breach

o

contract for failure to return deposits for advanced religious services. Defendants' entire

argument depends upon this Court finding that, by signing the enrollment agreement, Plaintiffs

not only agreed

to

arbitration concerning the subject

o

the contract but also that they gave up

their rights

to

sue for any other claim they might have against the Church regardless

o

how

remote from the subject matter

o

the contract. To hold that would require Plaintiffs

to

arbitrate

under a kangaroo court - everything from being run over by a Church-owned vehicle

to

being

defrauded

o

their life savings by an official

o

the Scientology Church. Mr. Garcia knew about

the Committee o Evidence, but he also knew, what this Court now knows, that those rules had

absolutely nothing to do with arbitration or the enrollment agreement that

he

was signing.

There was absolutely no way for Mr. Garcia

to

know that the Committee o Evidence

applied

to

arbitration. The Committee o Evidence Rules are as far from the arbitration procedure

in the enrollment agreement as they could possibly be.

Defendants, on page

7

o their brief, cite a number o Florida cases that hold that an

arbitration provision must be definite enough that the parties at least have some idea as

to

whether particular matters are

to

be submitted

to

arbitration and set forth some procedure by

which arbitration is

to

be effected. That is the problem for the Defendants. There simply are no

procedures by which this arbitration could be effected. Defendants cite Intracoastal Venture

Corp. v Safeco Ins.

Co

o America 54 So. 2d 162 (Fla. 4th DCA 1989), where the Court



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approved an agreement which provided for selecting three independent appraisers and had a

further provision for an umpire. That is the problem for the Defendant. The arbitrators in this

agreement are hardly independent. Defendants have not even made a credible argument that

someone who has the beliefs which even Mr. Ellis admits they would have could possibly be fair

for the purpose of arbitration. (Ellis 157: 17). These arbitrators could not possibly be fair to

someone who has been declared a suppressive by the Church . They could have no contact with

the Garcias, could give no credence

to

what they say, would face excommunication

if

they sat in

judgment of Scientology, believe that the Garcias are an enemy of everything they believe in and

are psychotic and have no rights. (Ellis 199:2) .

The theory of Defendants is that notwithstanding those beliefs, because another doctrine

of the Church requires that the arbitrators would have to be fair and that they simply would be

fair. ( d.) That doesn t make sense. That would be like saying that a juror who holds strong

feelings against a particular race or has an interest in the outcome of the case could still sit in

judgment

if

the Judge instructs them

to

be fair. The heart of arbitration is that arbitrators have

to

be neutral and unbiased. That cannot possibly be the case here and that is what is wrong with

this procedure.

f

the Church of Scientology wanted

to

have a fair arbitration, they could have

easily done so. They could have provided for rules of arbitration pursuant

to

the American

Arbitration Association or any

of

a myriad of other arbitration organizations and they could have

provided that the arbitrators would be chosen y that association or any other independent

means. Instead, they devised a procedure that they had

to

know was completely and totally unfair

and would make it impossible for someone like the Garcias to be successful and didn t even

provide a hint as

to

how the proceedings would take place.



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Both parties have amply briefed the legal issues before this Court on both procedural and

substantive unconscionability. While Defendants at the status conference indicated an interest in

providing a short bench memo

of a couple of pages, the 25 page tome that they have filed has

chosen

to

re-argue the same issues as previously briefed with similar,

if

not identical, citations.

Defendants make the statement on page

19 of

their brief that without the agreements and

the Scientology policy upon which they are based, Plaintiffs would have no basis

to

request a

return

of

donations. Defendants are mistaken. Plaintiffs are not basing their claim in any way

upon the enrollment agreement. Plaintiffs' claims are for fraud, violations of Florida Deceptive

Unfair Trade practice Act, and breach

of

contract for failure to return deposits for advanced

religious services. Nothing in the enrollment agreement relates to these claims, and nothing in

the enrollment agreement is connected to those claims.

Contrary to Defendants' assertion on page 20

of

their brief, this Court could well

conclude that no man in his senses and not under delusion would make an agreement whereby

they give up every possible civil remedy totally unrelated to the enrollment agreement

to

be

decided by three people who cannot believe them and have the strongest possible personal

objection to their claims.

The testimony

of

Mr. Ellis can be summed

up

at page 182, Line

8:

Question: Okay.

So to

sum things up, the way you view it is that an

arbitrator prior to the arbitration could be a Scientologist for many years

and could hold all of the beliefs that we've just gone through, that

suppressive people are psychotic, suppressive people are not to be

believed, that you can't adhere to them, you can t even speak to them

they could hold all those views, But by

-but

because they are instructed

to

be fair, They can be fair?

Answer:

Yes, because that's part

of it

Question:

That's your positon?



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Answer: Yes.

No man in his senses and not under delusion would think that an arbitration system

dependent upon arbitrators who hold those beliefs could possibly be anything but

unconscionable.

The difference between Mr. Ellis' testimony concerning Scientologists who have been

wrongly declared suppressive being judged by a Committee o Evidence designed for the very

purpose o determining whether a punishment that results in that suppressive declaration is just

or not, is completely different than someone who has publicly departed the Church, has been

determined

to

be suppressive, and is not trying

to

stay in the Church but rather is suing the

Church for fraud.

Defendants' belief that arbitrability is somehow immunized from Article III scrutiny

because that question implicates religious doctrine further illuminates the inherent bias in the

arbitration process that Defendants have crafted. Arbitration, at its core, is an agreement between

the parties

to

resolve their dispute in an alternative forum that ensures the same fairness and

impartiality as a court o law. By declaring the arbitration process an extension o Church

doctrine and thus beyond this Court' s review, Defendants in essence concede the interlocking

nature

o

the message and the messenger such that the very nature

o

the arbitration process

as

designed by Defendants cannot be separated from Church doctrine and thus is not impartial. But

conflating arbitration procedures with internal organization, or ecclesiastical rule, custom, or law

does not change the fact that the issue o arbitrability falls under the Court's inherent authority to

decide neutral questions such as its own jurisdiction. Whether the arbitration agreement should to

be enforced against Plaintiffs in this case implicates their secular legal rights. ones v. Wolf 443

U.S.

9

(1979) (a court can and should apply neutral principles o law

to

determine disputed



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12/13

Dated: February 16 2015

Respectfully submitted

s Amanda M McGovern

Ronald

P

Weil Esq.

Florida Bar No: 169966

Amanda

M

McGovern

Florida Bar No.: 964263

WElL QuARANTA McGovERN

P.A.

Southeast Financial Center Suite 900

200 South Biscayne Boulevard

Miami FL 33131

T:

305.372.53521

F:

305.372.5355

[email protected]

[email protected]

and

Theodore Babbitt Esq.

Florida Bar No: 091146

BABBITT JOHNSON OSBORNE

LECLAINCHE

P.A.

1641

Worthington Road Suite 100

West Palm Beach FL 3 3409

T:

561.684.2500 IF: 561.684.6308

[email protected]

Counsel for Plaintiffs Luis A. Garcia Saz and

Maria Del Rocio Burgos Garcia



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CERTIFIC TE OF SERVICE

We hereby certify that, on February 16, 2015, we electronically filed the foregoing

document with the Clerk o the Court using CM/ECF. We also certify that the foregoing

document is being served this day on all counsel o record or pro se parties identified below in

the manner specified, either via transmission

o

Notices

o

Electronic Filing generated by

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

to receive electronically Notices

o

Electronic Filings.

F

Wallace Pope, Jr., Esq.

FBN 124449

Johnson, Pope, Bokor, Ruppel

Bums, LLP

P.O. Box 1368

Clearwater, FL 33757

Phone: (727) 461-1818

Fax: (727) 462-0365

E-mail: [email protected]

Counsel for Defendants

Marie Tomassi, Esq.

FBN 772062

Trenam Kember Scharf Barkin Frye,

O Neill Mullis, P.A.

Bank o America Building

200 Central Avenue, Suite 1600

St. Petersburg, FL 33701

Phone: (727) 820-3952

Fax: (727) 820-3972


Counsel for

AS

Administrations Inc.

and

US.

AS

Members Trust

Nathan

M

Berman, Esq.

FBN 329230


Lee Fugate, Esq.

FBN 170928


Jack E Fernandez, Esq.

FBN 843751


Mamie

V

Wise, Esq.

FBN 65570


Zuckerman Spaeder LLP

101

E. Kennedy Blvd., Suite 1200

Tampa, FL 33602

Phone: (813) 221-1010

Fax: (813) 223-7961

Counsel

for

Church ofScientology Religious Trust


garcia v. scientology: plaintiff's bench memo

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