8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
1/13
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
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
2/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 2 of 13 PageID 3224
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
3/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 3 of 13 PageID 3225
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
4/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 4 of 13 PageID 3226
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
5/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 5 of 13 PageID 3227
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
6/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 6 of 13 PageID 3228
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
7/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 7 of 13 PageID 3229
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
8/13
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.
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 8 of 13 PageID 3230
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
9/13
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?
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 9 of 13 PageID 3231
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
10/13
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 10 of 13 PageID 3232
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
11/13
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
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
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
Counsel for Plaintiffs Luis A. Garcia Saz and
Maria Del Rocio Burgos Garcia
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 12 of 13 PageID 3234
8/9/2019 Garcia v. Scientology: Plaintiff's Bench Memo
13/13
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
E-mail: [email protected]
Counsel for
AS
Administrations Inc.
and
US.
AS
Members Trust
Nathan
M
Berman, Esq.
FBN 329230
E-mail: [email protected]
Lee Fugate, Esq.
FBN 170928
E-mail: [email protected]
Jack E Fernandez, Esq.
FBN 843751
E-mail: [email protected]
Mamie
V
Wise, Esq.
FBN 65570
E-mail: [email protected]
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
Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 13 of 13 PageID 3235