DECLARATION OF MICHAEL J. FLYNN1
I, Michael J. Flynn, hereby depose and state under the pains and penalties of perjury that I have personal knowledge or information and belief as to the following:
1. The purpose of this affidavit is to respond to charges made by the Church of Scientology and its counsel against me and my colleagues in connection with our activities and conduct in Scientology-related litigation. An additional purpose of the affidavit is to place in perspective our role in the commencement, prosecution and defense of Scientology cases, particularly in the context of (1) alleged personal harassment of ourselves and our clients, (2) the alleged tactics of the Church of Scientology to inundate various courts with massive docket filings, (3) the filing of allegedly frivolous and malicious lawsuits, bar complaints, and distribution of defamatory publications on the streets and in the media, (4) allegedly engaging in a systematic pattern to infiltrate our law offices, steal documents therefrom, disrupt our law practice, and (5) generally engaging in an assortment of abusive and unlawful conduct to deprive our clients of their legal rights and access to the courts. The affidavit will demonstrate to the court that in light of the facts, we have acted with professional restraint, diligence and within the bounds of the canons of ethics in seeking to prosecute the claims of our clients in the face of extensive, malicious, personal harassment as well as legal harassment through the filing of frivolous lawsuits, bar complaints, etc. Although Scientology and its counsel have, to some degree, succeeded in creating the impression in various courts throughout the United States that Scientology litigation in general is the product of a personal campaign between the lawyers on both sides to use the judicial system to vindicate personal animosities, it has always been our intention to obtain legal redress for our clients. We submit that the Church of Scientology is engaged in an elaborate and concerted plan to
create that impression by besieging each of the courts with such a massive amount of paperwork together with incessant charges against me that a true and just adjudication of the rights of the victims have become secondary. An examination of the dockets in virtually every case will reveal that we have been required to continually respond to personal attacks which have cluttered the docket entries. These continued personal attacks, such as motions for disqualification, depositions of counsel, lawsuits against counsel, contempt proceedings against counsel, bar complaints against counsel, and personal harassment of counsel, have resulted in a cluttering of the court dockets and the misdirection of the subject cases. The foregoing approach adopted by the Church pursuant to its written policies has been designed to confuse and obfuscate the legitimate factual and legal issues in the subject litigation. The attack by the Church of Scientology has been uncalled for, distorted, and unlawful.
2. In late June or early July, 1979, La Venda Van Schaick engaged me to obtain a refund of funds paid by her to the Church of Scientology in the amount of approximately $12,800.00. At that time, I knew nothing about the Church of Scientology, and was reluctant to undertake Van Schaick’s request because she informed me about the operating practices of the Church towards its so called “enemies”. However, at the request of several individuals and after preliminary investigation, I sent a letter to the Church dated July 17, 1979 requesting a refund of all funds paid by Van Schaick. (Exhibit 1 attached.) After sending Exhibit 1, I received a letter from the Church stating that no refund would be paid. (Exhibit 2 attached.) During the pendency of the aforestated correspondence, an individual holding himself out to be one “Chuck North” contacted me and asked to be engaged as a private investigator/
consultant in connection with “researching and investigating cults.” North specifically asked and requested to have access to any “cult files” in my office for the purpose of assisting
his research and investigation. I became suspicious about the coincidental mailing of the Van Schaick correspondence and the solicitations of North. As it later turned out, North was in
fact an agent of the Church seeking to infiltrate our offices. (Exhibit 3, Affidavit of Warren Friske, attached.)
3. During the period between July to September, 1979 when the correspondence concerning Van Schaick refund was being exchanged, I began to receive telephone calls from clients,
relatives, and friends stating that they had received strange telephone calls from various individuals requesting information about me. During the same period of time, in connection with numerous telephone calls and correspondence involving non-Scientology related clients and cases, many strange and suspicious incidents occurred which suggested that my telephone calls and office affairs were either being monitored, intercepted, or knowledge about them otherwise obtained. For example, an individual called one of my clients and told her that I should be reported to the bar because I had not turned over all of the funds I had received in the trial of a case. In fact, the client was present at the trial, received a trial judgment upon a jury verdict, and was paid in full. During the same period of time, namely between July and September, 1979, Van Schaick alleges that she began to be followed, her apartment kept under surveillance, her employment activities monitored, and numerous strange and suspicious circumstances occurred in connection with her daily life, too numerous for purposes of this affidavit. The only activity of mine involving the Church at that point in time had been to send one letter requesting a refund!
4. After receiving the letter denying the request for a refund, I received a letter dated September 11, 1979 from the “Church of Scientology of Boston”. (Exhibit 4 attached) This letter, together with the other prior strange occurrences, together with the allegations made to me by Van Schaick as to the nature and operating practices of the Church, resulted in the decision by me to initiate an investigation into the entire matter. The September 11 letter stated that the Church would be willing to pay approximately 50% of the funds paid to the Church by Van Schaick and at the same time suggested that Van Schaick should not sue the Church for the balance of the funds because she had an extensive drug history, had “three abortions”, had “attempted suicide”, had severe marital problems, and had signed an agreement never to sue the Church or the Hubbards. I had been informed by Van Schaick that all of the foregoing information came from her confidential, “auditing” or “confessional files” and that it was a regular practice of the Church to send such a letter to any person claiming refunds or to their counsel. Van Schaick stated that the auditing information had been given in strict confidence but that the Church, pursuant to written policy, regularly utilized such information to block legal recourse and for other purposes including blackmail and extortion even though it also had a written policy covering refunds.
5. Shortly after the receipt of the foregoing letter, I received several anonymous telephone calls suggesting that representation of Van Schaick was a dangerous matter, that no one “messes with the Church”, that if I had any doubts about this issue, to contact other people who had sought to “interfere” with the Church. During September and early October, 1979, I, as a result of all of the foregoing, was involved in an active and extensive investigation of the allegations made by Van Schaick in order to determine the propriety of a lawsuit against the Church. Because of the many strange events that occurred during this period of time in connection with this investigation, I concluded that the Church or its agents were monitoring my activities, telephone calls, and my investigation. Among the numerous incidents that confirmed this were several occasions when I observed individuals following me, defamatory calls were made to various clients shortly after I had called these clients on the phone, and an employee at the small airport where I maintained any airplane observed unidentified individuals viewing the airplane and seeking information about it.
6. Between that date and the ensuing several months, Van Schaick, was allegedly subjected to numerous incidents of personal harassment involving the surveillance of her home and her child, being run off the road in her car, numerous telephone calls to her neighbors suggesting that she was an unfit mother, calls to her employer resulting in the loss of her job as a
waitress, attempts to convince her that I was engaging in harassive conduct against her, attempts to separate her from her husband, and other forms of harassment. In one instance, she
states that the Church sent an agent from Los Angeles to convince Van Schaick that the “harassive things” being done to her were initiated by me! (A copy of that agent’s note is attached as Exhibit 5.)
7. In November 1979, nine of the highest officers of the Church of Scientology were convicted of a variety of crimes, and approximately 30,000 documents seized by the F.B.I. from the
Church were released to the general public. I sent an employee to the Federal Court in Washington to copy thousands of these documents. These documents in large part verified the
allegations of Van Schaick and validated my belief that the Church was responsible for the numerous inexplicable and harassive incidents that had occurred in the prior several months.
The documents revealed a 15-year pattern of infiltration, burglary, bugging, harassment, and elaborate policies and operations to commit the foregoing pursuant to specific and detailed training manuals. The documents also contained hundreds of documents pertaining to the use of auditing information by the Church against individuals such as Van Schaick for the purpose of blocking and frustrating their legal rights, even specifying the use of extortion and blackmail. In fact, the specific written operations authorized by Mary Sue Hubbard to conduct this type of operation were among these documents.
8. During the same period of time, I conducted an extensive legal analysis and case research involving the Church of Scientology and learned that the publications of the Church of Scientology had been declared fraudulent in the case of United States v. Article or Device, 333 F.Supp. 357 (D.D.C., 1971) and that the Church had never complied with the decree in said case. Further, I learned that the Church had brought in excess of 100 cases against a variety of individuals and entities for the purposes of frustrating the legal rights of those parties and for the purpose of harassing them pursuant to a specific written policy of the Church which calls for the use of the judicial system to harass and destroy critics.
9. Finally, after approximately six months of research and investigation at a cost in excess of $20,000.00, we decided to bring a class action suit against the Church of Scientology to recover not only for the damages inflicted on Van Schaick, but also to seek relief for the class as a whole, for the failure of the Church to comply with the Article or Device decree. That suit was initiated on December 13, 1979, resulting in unsolicited contact by the news media to Van Schaick and me. After the news relative to the class action suit was disseminated in the press, the floodgates unexpectedly and surprisingly opened. My office was literally swamped in a period of weeks with hundreds of telephone calls by a variety of individuals and organizations including parents whose children had committed suicide while in the Church, individuals who had been hospitalized as a result of Church involvement, authors, reporters, individuals who had been allegedly defrauded by the Church, various law enforcement agencies, and other assorted contacts.
10. After the commencement of the Van Schaick action, the Church immediately attempted to infiltrate the class with an agent posing as a prospective client (see affidavit of Garrity attached as Exhibit 6), intensified its harassment of individuals associated with me, attempted to disrupt non-Scientology cases I was involved in, and generally initiated a campaign of
unrelenting personal and legal harassment. This campaign included the following:
a) Approximately three weeks after the commencement of the Van Schaick case, without filing a counter-claim in that action, and without filing a Motion to Dismiss within the time allowed by the rules, the Church initiated a lawsuit in the Federal District Court in Nevada against Van Schaick, Kevin Flynn, (my brother and an employee of my office), Thomas Hoffman, Esq., (a colleague), and Edward Walters, (a client). That suit alleged a conspiracy by these individuals to deprive the Church of its First Amendment rights. The suit was
dismissed by the Federal Court within 120 days.
b) At the same time as the filing of this action, the Church filed in succession four separate bar complaints against me alleging a variety of things including conspiracy to violate the Church’s First Amendment rights, the unlicensed practice of law by Kevin Flynn, and a variety of other charges. The first three complaints were filed on January 15, 1980, February 7, 1980 and April 3, 1980, all of which were dismissed on April 10, 1980 by the Massachusetts Board of Bar Overseers. (See Exhibit 7 attached.) On November 19, 1980, the Church filed yet another complaint which was dismissed on May 4, 1981. (See Exhibit 8 attached.)
c) After the dismissal of the Federal Nevada action, the Church then commenced an action against Van Schaick, Kevin Flynn, Edward Walters, and other clients of mine in the state court in Nevada, which was nearly identical to the federal action. As to Van Schaick and Kevin Flynn, this suit was also dismissed.
d) The Church also filed an action against me and four of my clients in the Massachusetts Suffolk Superior Court alleging that the clients had stolen materials from the Church of Scientology of Boston and turned them over to me. These materials primarily included the auditing files of the four clients who had left the Boston Church and taken their auditing files with them because they were aware the Church used them for purposes of blackmail. Also allegedly taken were some financial graphs and some Sea Org organizations. I stipulated in open court to filing the voluminous auditing files under seal with the court, returning the financial graphs, and maintaining possession of the Sea Org communications. The court adopted this offer and issued an injunction based upon it. In subsequent litigation around the United States, particularly in the recent case of the Church of Scientology v. Gerald Armstrong, California Superior Court, Los Angeles, C420153, the Church has attempted to use this litigation and the stipulated injunction to misinform and mislead the court into the belief that I had behaved unethically as reflected by the injunction, when in fact, I stipulated to the injunction, and the suit was prosecuted for the purpose of harassing me pursuant to the written policy of the Church.
e) Subsequently, the Church filed an additional action against me in the Las Vegas state court alleging essentially that I was engaged in a conspiracy against the Church and abusing judicial process. Church counsel attempted to procure a false affidavit from an ex-member to support the case. (See Exhibit 6 at page 8.) The court granted my Motion Judgment in that action.
f) Between January and May, 1980, for Summary I was subjected to hundreds of instances of personal harassment, which I believe, based upon the Friske and Garrity affidavits and other information, to have been conducted by the Church. These included inter alia, contacting my insurance agent and informing the agent that I had murdered the husband of one of my clients, making a bomb threat to my building resulting in its evacuation, throwing rocks at my building, sending a post card threatening to poison me, harassive telephone calls at and night to me, my wife, and my children, phone calls to neighbors and suggesting in all hours of the day making obscene telephone calls to neighbours and suggesting in these calls that I was making them, and process servers arriving at my home at all hours disturbing my wife and children. (See generally, Exhibit 9.)
g) Between approximately November, 1979 and up to and including at least May, 1982, the Church allegedly stole approximately 20,000 documents either directly from my office or from a trash dumpster in my private office condominium compound. This theft is established by the following evidence. Kevin Tighe formerly of the Guardian’s Office has testified under oath that he stole documents from my law office garbage. (Exhibit 10.) Warren Friske, former head of B-2 in Boston, admits he sorted the stolen documents and sent the materials to the U.S.G.O. and to CSC’s attorneys. (Exhibit 11.) Joe Lisa, former head of the U.S.G.O., has admitted in a sworn deposition that he ordered the document theft operation. (Exhibit 12.)
11. Between January and May, 1980, hundreds of former Church members contacted my office seeking legal recourse against the Church. One of these individuals, Tonja Burden, had
worked directly for L. Ron Hubbard, who had ultimate and absolute control over all Church activities. Burden, between the ages of 13 and 17, worked for the Church without receiving any education, essentially served for a long period as Hubbard’s personal slave, dressing and undressing him, and was involved in coding and de-coding telexes in double and triple codes regarding operations against the United States government, state agencies, and numerous individuals. She was defrauded of approximately five years of labor, a high school education, was made to sign promissory notes in the thousands cf dollars, she was tendered a bill in the amount of approximately $61,000.00, was subsequently kidnapped, harassed and taken over state lines when she left the Church, and was generally tortiously injured by the Church without receiving the benefits promised to her and based upon false representations made to her. With co-counsel in Tampa, Florida, we commenced an action in the Federal District Court on or about April 25, 1980 on behalf of Ms. Burden. This was only the second suit initiated by my office in connection with Scientology litigation. Yet, most of the items referred to in paragraph 10 against my office were either in process, completed, or being planned. The Church proceeded to literally swamp the court docket with motions, pleadings, and discovery, the great bulk of which motions have been denied,
resulting in a massive amount of paper that stands approximately two feet high to date. Although ex-Scientologists have come forward and acknowledged a consistent pattern of abuses against individuals such as Van Schaick and Burden with regard to the wrongful dissemination of auditing information, fraudulent and deceptive recruitment and sales practices, campaigns of harassment pursuant to the “Fair Game Doctrine” and other such operations, and thousands of documents exist to support such allegations, the Church and its counsel have engaged in a pattern of litigation designed to wear down the plaintiffs, their counsel, and the court system rather than attempt to resolve the injury claims in a judicious and good faith approach based upon specific and extensive evidence. The latter strategy is reflected by the activities of the Church and its correspondence to me prior to the commencement of the Van Schaick action as well as the aforesaid dismissed lawsuits, bar complaints, and harassment techniques.
12. Between May, 1980 and December, 1980, my office continued to be besieged with contacts from former members, parents, state and federal law enforcement agencies, the news media, etc. with regard to the activities of the Church. During that period of time, my office brought several additional actions in the Massachusetts Superior Court on behalf of former
members who sought to obtain legal redress against the Church. During the same period of time, the continuous theft of documents from my office and compound took place and the general campaign of harassment continued. The hundreds of instances involved in this harassment are too extensive to set forth in this affidavit but they consisted of a general pattern of what has been previously described including contacts with non-Scientology clients. (See several statements of clients attached hereto as Exhibit 9.) Throughout this period of time
the Church continually attempted to take my deposition and depositions of my employees and colleagues on numerous occasions in different cases.
13. In January, 1981, after living through a year and a half of the activities and conduct previously described, I flew to Los Angeles, California, together with my colleagues, for the purpose of discussing settlement of the Scientology litigation with Church counsel. During these settlement discussions, the Church agreed to repay all of the monies paid by two claimants, Donald and Peggy Bear, in the amount of approximately $107,000.00. Although releases were signed and the Church represented to numerous courts that it had a policy to
refund monies paid to it, the Church failed to deliver a check for the proceeds, the settlement negotiations fell through, and a suit was later commenced on behalf of the Bears. (See Exhibit 14 attached.) At the time of the preparation for these settlement negotiations, my office prepared an extensive analysis of approximately 50 cases that it was considering filing on behalf of former members, which analysis related to the costs of such litigation for both sides, the factual issues involved in the various cases, peripheral issues such as probate matters, media problems, etc., That analysis was prepared specifically for these settlement negotiations. The analysis was subsequently stolen from our offices and later became the subject of an additional bar complaint and a suit brought by the Church against my colleagues and I in the Los Angeles District Court, discussed infra.
14. After the settlement negotiations failed, and after spending several weeks in Los Angeles, we returned to Boston and prepared to conduct a conference in May 1981, for the purpose of meeting with several lawyers in connection with the proposed commencement of some of the 50 cases included in the settlement analysis. Portions of the settlement analysis were included in a packet of information given to the lawyers who attended the May conference. Those documents were also subsequently stolen by the Church of Scientology from our offices or our trash dumpster. At the conference, attended by approximately eight attorneys, the nature of Scientology litigation was explained, fee relationships were discussed involving the traditional contingent fee type relationship and a sharing of the fees between the attorneys based upon the amount of work done on each case. Other peripheral issues set forth above in the settlement analysis were discussed. This meeting was infiltrated by an agent of the Church posing as a client, Ford Schwartz, on behalf of the Church. (See attached Exhibit 15.) The Church, therefore, was aware of the nature of the meeting, what was discussed, and the fee relationships that existed between the clients and the attorneys.
15. Between May, 1981 and July, 1981, Kevin Flynn, who had ceased being an employee of mine in mid-1980 and who had commenced working as an independent contractor, submitted a proposal to me and my colleagues whereby Kevin Flynn’s corporation, Flynn Associates Management Corporation, would perform services on behalf of the various attorneys as a researcher and investigator in consideration of receiving a percentage of the funds recovered in the cases. After research by me and my colleagues, the proposal was rejected, although ethical opinions of several states indicated that such a proposal was not improper. This proposal was also stolen from the offices of mine and/or the trash dumpster in the private office compound.
16. During the summer of 1981, as a result of the ongoing theft of documents from my office and compound, most of which constituted attorney-client communication and/or work-
product, the Church knew that I and counsel from various other states were considering the commencement of various actions in New York, Washington, and Los Angeles. It also knew that Flynn Associates Management Corporation played no role in connection with these suits, that the May meeting among counsel was ethically proper, and that I was still seeking to resolve the cases without litigation.
17. In June, 1981, Church counsel again initiated settlement discussions, this time with my co-counsel in the Burden case in Tampa, which resulted in a series of correspondence between me and Church counsel. (See attached Exhibit 16.) In fact, the Church offered 1.6 million dollars to resolve all existing and impending litigation, and I accepted their
offer on behalf of the various clients involved, in a good faith effort to resolve the entire matter. My motivation in accepting this settlement offer of the Church on behalf of my clients
involved numerous considerations including: a) the desire of clients and counsel to end the torrent of legal and personal harassment; b) the expense and time consumption inherent in the litigation for all parties; c) the promised efforts of the Church to reform and discontinue many of its unlawful practices; and, d) the financial remuneration of clients and counsel.
18. Between approximately April and June, 1981, I was contacted by the City of Clearwater to prepare a report relative to the Church of Scientology and the tax-exempt aspects of organizations such as the Church. Because of the continued theft of materials from my office, the Church was fully aware of the fact that various City officials had contacted me during that period of time. The Church therefore knew, through the acquisition of illegally obtained information, when it made its 1.6 million dollar offer to settle all Scientology-related litigation matters, that hundreds of individuals had contacted our office, that several counsel in various areas of the U.S. had agreed to undertake litigation on behalf of injured clients, that the City of Clearwater was commencing an investigation into the Church, that it had been engaged in a two-year campaign of legal and personal harassment against me and my office, that it had been engaged in at least a ten-year pattern of burglary, larceny, obstruction of justice, etc., of which its highest leaders had been convicted, and that there were thousands of people across the United States who were seeking refunds from the Church. Because of the close monitoring and surveillance of my office, the Church also knew that my colleagues and I were willing to resolve the litigation primarily because of our desire to terminate the persistent harassment of us and our clients. At this point in connection with the litigation, I had personally expended in excess of $200,000.00.
19. Upon information and belief provided by recently defected members of the Church, in the summer of 1981, when all of these matters were occurring, an internal power struggle took
place within the Church resulting in the purge of several highly-placed members and the resulting take-over of the Church by several young members of the “Commodore’s Messenger Org,” who had served personally for L. Ron Hubbard throughout their teen-age years, who were then approximately 21 or 22 years of age, and who were fanatical adherents of Hubbard. These individuals who took over the Church adopted a plan in the summer of 1981 to conduct an all-out campaign against me and my clients pursuant to the “technology” of the Church doctrine, to wit, the Fair Game Doctrine, to destroy me and all opposition to the Church. Upon information and belief, the foregoing involved a highly secretive written plan adopted by the highest members of the Church to revoke the offer of settlement, revert to “Hubbard technology,” and to attack and destroy me pursuant to the following Hubbard policies:
Don’t ever defend. Always attack. Find or manufacture enough threat against them to sue for peace. Originate a black PR campaign to destroy the person’s repute and to discredit them so thoroughly they will be ostracized. Be very alert to sue for slander at the slightest chance so as to discourage the public presses from mentioning Scientology. The purpose of this suit is to harass and discourage rather than to win.
(Level 0 Checksheet attached as Exhibit 17.)
Pursuant to this plan, the Church then embarked on a campaign beginning in August, 1981, and continuing up to the present date, to “attack”, “sue”, and “destroy” me. This campaign has included the following:
a. In August, 1981, the Church, through its counsel, Harvey Silverglate, filed a bar complaint against me and my colleagues attaching numerous documents that had been stolen from my office and compound. The thrust of this complaint was that I was unlawfully selling shares of Flynn Associates Management Corporation to finance prospective lawsuits against the Church. Although the Church knew that this allegation was false, the Church and its counsel wove together the settlement analysis prepared in January, 1931, the materials assembled for the May conference, and the proposal of Kevin Flynn, then attempted to create a false and deceptive impression with the Board of Bar Overseers and subsequently in the courts. The Church knew at the time of this bar complaint that the allegations of its counsel, Silverglate, were false, because it had agents who had attended the May conference, it had stolen the settlement analysis at the time it was prepared in January, 1981, and the Church had stolen the Kevin Flynn proposal when it had been prepared
and rejected in June, 1981.
b. In addition to this bar complaint, the Church and its counsel then proceeded to file an additional three bar complaints against myself and my colleagues, including, inter alia, the allegation that I improperly attempted to avoid service of process by one of the many process servers in connection with suits and depositions that the Church was attempting to initiate against our office. These bar complaints were filed through-out the period from August to December, 1981. Notwithstanding the foregoing complaints, I have received a letter from the Board stating that it does not consider that I have any “Complaints” presently against me. (See Exhibit 18.)
c. At the same time that the bar complaints were being filed, the Church was engaged in operations to steal documents from the trash of at least one of the members of the Board of Bar Overseers. (See affidavit of Warren Friske attached as Exhibit 3.)
d. In August, 1981, the Church commenced an action in the Los Angeles Federal District Court through one of its members, Steven Miller, against me, my brother, Kevin, a medical doctor, and several others, on the theory that the defendants had “deprogrammed” Miller and violated his civil rights. At the time of the filing of the suit, I had never heard of Steven Miller and had never had any contact with him before. The attorneys’ fees in connection with the defense of that case, upon information and belief, are currently in excess of $200,000.00, which have been paid by the parents of Steven Miller, I have also sustained attorneys’ fees and expenses in connection with the defense of that case and other litigation initiated by the Church of Scientology.
e. In August, 1981, the Church commenced an action in the Boston Federal District Court through its members, Ellen and Chris Garrison, on the same theory of deprogramming. This suit was brought against Kevin Flynn and Paulette Cooper after specific planning and meetings were held by the Church to bring this suit against these individuals for the purpose of harassing them and my office. (See Affidavit of Warren Friske attached as Exhibit 3.)
f. During the same period of time, and in the ensuing months, the Church filed motions to disqualify me in the cases of Garrity, et al. v. The Church of Scientology, Los Angeles Federal District Court, Burden v. Church of Scientology, District Court in Tampa, and in the Van Schaick case. These Motions for Disqualification were all part of the plan to personally and legally harass me and my colleagues.
g. Between August, 1981 and December, 1981, the Church literally swamped the court dockets in every case that it was involved in, including both those it had initiated and those that had been brought by claimants, with hundreds of pleadings, motions, discovery requests, etc. An examination of the dockets in almost any of the pending cases will illustrate the intense campaign of legal harassment specifically adopted by the Church during this period of time to destroy me, my office, and my clients.
h. My office utilized a long distance telephone code which unauthorized individuals, allegedly the Church, intercepted and thereafter used to charge in excess of $1,000.00 in telephone calls to our code. In a similar “operation,” it has been alleged that the Church intercepted the code of a third party in California and made telephone calls to our clients charging the calls to the third party’s code. All of these matters and many others have been turned over to the F.B.I.
i. After we spent in excess of one hundred hours defending the Motions to Disqualify filed in the Garrity, Van Schaick, and Burden cases, the Church dropped these Motions and instead undertook a new round of lawsuits against my office. The Church commenced an abuse of process action in the Los Angeles Federal District Court in connection with the Garrity, et al. case and also brought another civil rights action against me and the City of Clearwater in the Tampa Federal District Court.
20. The Church timed commencement of the abuse of process action in the Los Angeles Federal District Court to coincide with certain hearings being conducted by the City of Clearwater involving the Church of Scientology in which our office was involved. In connection with these hearings, the Church adopted a specific operation to harass me as follows:
In the second week in March, 1982, the Clearwater hearings were scheduled to begin on April 21, 1982. On March 25, Church counsel in the case of Cazares v. Church of
Scientology, Circuit Court in Daytona, sent a letter to me scheduling my deposition for April 23, 1982 in Tampa during the middle of the hearings. Although the hearings were
subsequently continued until May 5, 1982, on April 19, 1982, while appearing in the Burden case in Tampa, I was served with a deposition subpoena. I filed a Verified Motion to Quash the Subpoena stating that the demands of my law practice prevented me from remaining in Florida throughout the “time” required for the deposition, 2:00 p.m. on Friday, April 23, to continue from day-to-day over the week-end and the following Monday, as required by the deposition subpoena. I sent a letter on two occasions to Church counsel indicating that I could not appear for the deposition, that I had no personal knowledge of the subject matter of the case in which the deposition was to be taken, but that I would be willing to schedule another date when I would voluntarily appear. Subsequently, after the Church learned that the hearings would be continued to May 5, 1982, it issued a second subpoena, from the Los Angeles Federal Court in the case of Church of Scientology v. F.B.I. I had no personal knowledge relevant to this case but the Church sought to take my deposition, again during the middle of the hearings. I communicated to counsel in that case that I would be unable to appear on that date. Subsequently, during the middle of the Clearwater hearings, the Church filed motions to hold me in contempt in the Los Angeles Federal District Court and in the Daytona Circuit Court because of my failure to appear at the depositions. In connection with the Daytona contempt proceeding, I informed the Court of the foregoing, informed the Court that under Florida law I was immune from service in Florida, under the Florida Rules of Civil Procedure my deposition had to be taken in Massachusetts, but that I was still willing to appear without need of going forward with the contempt matter. Notwithstanding the foregoing, and after the Church counsel specifically misrepresented the facts, without a trial, without any witnesses being called at the contempt matter, and without complying with Florida rules with regard to “indirect criminal contempts,” Church counsel procured a contempt finding against me from the Court. The matter was appealed and the appellate court reversed and vacated the finding of contempt by the trial court. The trial court judge has since left the bench after being implicated in an unrelated bribery scheme.
21. In the face of this harassment and abuse, the intention of our office throughout the subject litigation has been to obtain redress on behalf of our clients for alleged fraud in the taking of their money and labor and for outrageous conduct in blocking their access to judicial relief. We submit that the Church of Scientology operates based on policies such as “Fair Game” and “Attack the Attacker” because it must use such means to perpetuate its fraudulent sales and recruitment practices. These operating policies of the Church carry over to its activities and conduct in dealing with the judicial system and attorneys, such as ourselves who represent clients against the Church. We are among many attorneys and judges who have been attacked by the Church through motions for disqualification, lawsuits, bar complaints, and personal harassment. The Assistant U.S. Attorney in the Washington criminal cases, several federal judges, and the attorney for the F.D.A. are such examples. (See attached Exhibit 19.) While utilizing the operational policies such as Fair Game, the Church presents a religious front to the Court in order to frustrate legitimate claims for tortious injury and to create the appearance of a personal conflict amongst the lawyers in the swamping of the dockets with every conceivable filing. Abuse of the legal system is reflected by the massive litigation instituted by Scientology in courts throughout the United States. (See Lexis scan attached as Exhibit 20.)
22. My colleagues and I have never before been subjected to the legal harassment which has occurred in the subject litigation. Our background is not one of using the judicial system abusively or without just cause. I was ranked first in my class in law school, served as Editor-in-Chief of the Law Review, served as a law clerk to a Justice of the Massachusetts Supreme Judicial Court, have been married for 16 years with 3 children, and I have always endeavored to practice law with discretion, professional restraint and within the bounds of the canons of ethics. In contrast, the highest officials of the Church have served time in Federal Prison, there are literally thousands of individuals and families seeking legal redress, and the fraudulent, tortious, and often times criminal activities and policies of the Church are becoming increasingly evident. These victims have come to us in the hundreds, often with substantial financial claims and evidence of overt physical and mental abuse. As a result of my assistance to these people, I have been “declared” an “enemy” by the Church and appear on its enemies list.” (See Exhibit 21 attached.)
23. It has always been the policy of my office to resolve claims against the Church of Scientology without litigation. The efforts at settlement between January and July, 1981 were such an example. The Church is now using those confidential settlement negotiations to further attack me, although the Church insisted in writing on their confidentiality, and
accepted, but later reneged upon, the settlement.
24. It is the intent of my office and clients to obtain legal redress for legitimate claims in the context of substantial supporting evidence. It is not my intent to use the judicial process to harass the Church. The fact that the Church has a written policy mandating such judicial abuse, together with a 20-year history of employing it, is evidence of the fact that the Church, not myself or my clients, is intent upon creating a distorted and false perception of the nature and purposes of each of the Scientology related cases.
25. I am not collaborating with forces who are trying to destroy freedom of religion and churches in America.
26. I am not collaborating with anyone using brutal “deprogramming” and “depersonalizing” techniques. I have never deprogrammed or depersonalized anyone.
27. I have exercised my First Amendment rights to speak out and oppose an organization whose top leaders have gone to prison. However, I have never sought to manipulate the media or use libel, forgery, or other improper means in connection with any of the litigation.
28. I have made no fraudulent representations of any nature or description but have merely sought to expose the misrepresentations made by the Church of Scientology.
29. Dr. John Clark has never been part of any operations of FAMCO of any nature or description, nor has Kevin Flynn through FAMCO or otherwise, attempted to involuntarily kidnap or brutalize anyone.
30. The charge that I have solicited an individual named “Jim Gray” to enlist him to sell shares in FAMCO is totally false. Gray was never offered any position, no shares were ever offered to him, and I have no idea why he would make such allegations in a so-called “sworn affidavit.”
31. The charge that I have solicited clients in connection with the Church of Scientology is absurd. Indeed, the reverse is true. There are thousands of Scientologists throughout the United States seeking to obtain legal counsel to obtain redress against the Church. The problem is that it is very difficult to get lawyers to take on such cases. I have been unfortunately refusing clients, not soliciting them. Although my law firm has endeavored to help all of these people, and has never solicited any of them, we are, in fact, incapable of representing the thousands of people who desperately need representation.
32. The Church of Scientology claims that I “resorted to the use of force and coercion in the form of psychiatric…not unlike the insidious, painful brainwashing techniques on American servicemen by Chinese Communists during the Korean War.” First of all, I have never advocated nor would I ever participate in any such activity. Second, “brainwashing” is a technique used and taught by the Church in its G.O. intelligence courses. (Exhibit 22.) Third, as explained above, I never met nor even heard of Steven Miller prior to his filing a Church sponsored lawsuit against me which has since been dismissed.
33. The probate case relating to Ronald DeWolf and the “missing person status” of L. Ron Hubbard was brought for the simple reason that L. Ron Hubbard’s own attorney, Alan Goldfarb, stated that L. Ron Hubbard was missing, and that he could not appear in one of the many suits that had been brought against him because no one knew where he was and no one from the Church of Scientology had communicated with him since February 1980. It was the conduct of Hubbard’s own lawyers and the group that now run the RTC (Religious Technology Center) and the failure of Hubbard to appear and defend himself in Court or even to appear and defend or assist his wife for that matter, which resulted in the
Hubbard filed a to be appointed Ron Hubbard was probate case being brought. It was only after legal declaration, the day before a trustee was in the probate case, that the Court held that L. Ron Hubbard was not a missing person.
34. The finding of contempt against me was one of the numerous legal proceedings brought against me at the same time. The Church of Scientology fails to state that I did not even appear and defend the contempt proceeding because of the onslaught of other harassment brought against me by the Church, and, later when I moved to vacate the order, the judge stated that no bad faith or misconduct was involved, but merely a technical violation of one of the court orders regarding disclosure of information about Hubbard.
35. The allegations contained in Paulette Cooper’s affidavit are perhaps the most absurd portion of the Church of Scientology’s charges. Since I was Ms. Cooper’s attorney, I feel ethically bound to hold inviolate the communications we had regarding L. Ron Hubbard, other than to say that Ms. Cooper’s declaration is totally false. The accompanying declaration of Joseph Flanagan2 explains how Ms. Cooper came to testify for CSC.
36. The idea that Kevin Flynn, Thomas Hoffman, or I, or anyone associated with us, had anything to do with the forgery of one of L. Ron Hubbard’s checks, is simply too fanciful to warrant extensive discussion. Suffice it to say that I brought to the attention of the public and the courts the fact that one of L. Ron Hubbard’s checks, in the possession of individuals controlling the RTC, was forged and an attempt to pass it was made at the time in May-June, 1982 when Hubbard wrote a will and in the will turned over control of Scientology to the RTC. It was at the same time that the RTC began to assert total dictatorial control throughout the Church of Scientology. Any intelligent observer can put two and two together to conclude that I would not participate in the forgery of a two-million dollar check and then do everything in my power to investigate it.
37. Recently, I received a letter and telegram from Mr. Tamimi, whose sworn declaration was procured by Eugene Ingram, an investigator employed by Church of Scientology, who has been removed from the L. A. Police Force for his purported involvement in assisting narcotic dealers, pimping, and other criminal activities. In the note and telegram Tamini states that the declaration procured by Ingram is false and that he is now prepared to tell the truth. Tamini’s declaration, attached to Peterson’s declaration, should be viewed with great scepticism in light of Tamini’s letter and telegram. (A copy of this letter and telegram is attached as Exhibit 23.) This letter has been turned over to law enforcement authorities to permit further investigation. This letter was the first communication of any type which I have ever had with Mr. Tamini.
Signed under the pains and penalties of perjury this ____ day of July, 1985 in Boston, Massachusetts.
Michael J. Flynn
MICHAEL J. FLYNN vs. CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., & others. [Note 1]
19 Mass. App. Ct. 59
October 16, 1984 – December 4, 1984
Present: GREANEY, C.J., DREBEN, & FINE, JJ.
Where the case against one of several defendants in a civil action had been terminated by the plaintiff’s timely filing of a notice of voluntary dismissal under Mass.R.Civ.P. 41(a)(1), 365 Mass. 803 (1974), it was error for a judge, in ruling on a subsequent motion to dismiss, to include that defendant in an order dismissing the action with prejudice. [64-65]
Where the plaintiff in a civil action had moved for voluntary dismissal under Mass.R.Civ.P. 41(a)(2), 365 Mass. 803 (1974), it was error for the judge hearing the motion to order dismissal of the action with prejudice before first affording the plaintiff an opportunity to withdraw his motion to dismiss, when he sought to do so upon the judge’s announcement in open court of his ruling on the motion. [66-67]
CIVIL ACTION commenced in the Superior Court Department on April 9, 1982.
A motion to dismiss was heard by Hiller B. Zobel, J.
Harvey A. Silverglate for Church of Scientology of California, Inc., & others.
David M. Banash for the plaintiff.
Charles W. Rankin for Kevin Tighe.
FINE, J. On April 9, 1982, Michael J. Flynn, an attorney, brought an action against the Church of Scientology of California, Inc., The Church of Scientology of Boston, Inc., and three individuals, each of whom is alleged to have been associated with the Church of Scientology of Boston, Inc., either as a staff member or as an officer. Mr. Flynn claims that the defendants were responsible for the unlawful taking of documents
from his law offices in Boston and from a dumpster located outside his office. He alleges that these acts occurred over a period from December of 1979 until the fall of 1981, and that, among the documents taken, were confidential client communications. He sought injunctive relief, compensatory damages, and an award of multiple damages and attorney’s fees under G. L. c. 93A.
On October 12, 1983, a judge of the Superior Court dismissed the lawsuit with prejudice following a hearing on Mr. Flynn’s motion for voluntary dismissal under Mass.R.Civ.P. 41(a)(2), 365 Mass. 803 (1974). [Note 2] The question posed by Mr. Flynn’s appeal in this case is whether that action was proper. In order to answer it, we must examine the history of the particular litigation, as well as other material which was before the judge when he acted on the plaintiff’s motion. Although a considerable amount of other material has been brought to our attention by the parties, we focus our attention exclusively on that material which was before the judge when he rendered his decision. Because the language of the sections of the rules with which we are concerned is almost identical to the equivalent sections of the Federal Rules of Civil Procedure, we look for guidance to Federal law in interpreting those rules. Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174 , 179-180 (1975).
The following is a summary of the relevant events that occurred in the case after the complaint was filed and prior to the hearing. On April 13, 1982, a hearing was held on the plaintiff’s motion for a preliminary injunction, at which all parties except the Church of Scientology of California, Inc., were represented. There was a discussion of proceedings which had taken place in a case pending in the United States District Court in Boston, Van Schaick v. Church of Scientology of California, Inc., No. 79-2491-G (D. Mass. filed Dec. 13,
1979), and of certain orders which had been entered in that case relating to the documents allegedly taken from Mr. Flynn’s office or trash, which were the same documents as those referred to in the instant case. [Note 3] Perhaps because those orders provide some protection to Mr. Flynn as to the use that could be made of the documents, on the day it was heard the motion for preliminary injunction was denied. It was again denied after an interlocutory review by a single justice of this court (pursuant to G. L. c. 231, Section 118, first par.) a few days later. On May 10, 1982, all parties except the Church of Scientology of California, Inc., filed answers. On May 17, 1982, Mr. Flynn filed a demand for jury trial. On September 12, 1983, Mr. Flynn filed a notice, dated August 29, 1983, of voluntary dismissal as to the Church of Scientology of California, Inc. On September 19 and 22, 1983, respectively, the defendants gave notice that they would take the depositions of Mr. Flynn on September 29, 1983, and of four other individuals on various other dates. On September 29, 1983, Mr. Flynn filed his motion to dismiss and also a motion to stay discovery pending resolution of the motion to dismiss. The motion to stay discovery was allowed. The motion to dismiss was heard and allowed with prejudice on October 12, 1983, all parties having been represented at the hearing except the Church of Scientology of California, Inc.
The judge at the dismissal hearing had before him three affidavits, one from Mr. Flynn, one from Eric D. Blumenson, an attorney representing the Church of Scientology of Boston, Inc., and one from Harvey A. Silverglate, an attorney representing the Church of Scientology of Boston, Inc., the Church of Scientology of California, Inc., and some of the individual defendants. A considerable portion of all of the affidavits from both sides contained cross-charges of harassment and abuse of the judicial process. Mr. Flynn’s affidavit referred, in addition, to the orders which had been entered by the United States District Court in the Van Schaick litigation and to a complaint in a case filed in the United States District Court on his behalf on September 7, 1983. The complaint in that case (Flynn v. Hubbard, No. 83-2642-C [D. Mass.]), alleges that Hubbard [Note 4] and his agents are engaged in a broad conspiracy to “destroy” Mr. Flynn. Numerous wrongful acts are alleged to have been committed, including the same acts involving documents taken from Mr. Flynn’s office and trash which form the basis of the instant suit. The affidavit of Mr. Blumenson, on the other hand, relates the difficulties encountered in the attempt to schedule Mr. Flynn’s deposition and refers to the age and history of the case. In addition, Mr. Blumenson speculates as to Mr. Flynn’s “hit and run” strategy, characterized by the filing of numerous lawsuits for purposes, he says, other than the receipt of legal redress. He asserts further that Mr. Flynn has shown no reason why the allegations made in this lawsuit should be tried in a different forum, and he states that, if the motion to dismiss without prejudice is allowed, his client’s name will remain tarnished, Hubbard being the only named defendant in Mr. Flynn’s Federal District Court case. Mr. Silverglate’s affidavit refers to correspondence from Mr. Flynn seeking settlement of pending cases against the various church organizations and threatening to file numerous additional lawsuits if settlement is not reached. Mr. Silverglate refers to an
alleged scheme on the part of Mr. Flynn for development of additional litigation against the various church entities and alleges that Mr. Flynn’s general litigation strategy is to file duplicative cases and dismiss them whenever faced with adverse rulings. The affidavit refers to the expense incurred in defending the litigation brought against the church. Mr. Silverglate also describes the proceedings in the Van Schaick litigation regarding the documents. And, finally, he speculates that in the Federal District Court litigation against Hubbard Mr. Flynn’s strategy is to obtain a default judgment against Hubbard, whom he expects not to appear, and then to collect damages from the parties who are the defendants in this litigation.
At the outset of the hearing, the judge outlined three possible resolutions of the motion to dismiss: “dismissal with prejudice; denial of the motion to dismiss; and denial of the motion to dismiss with a stay of the Federal court proceedings” against Hubbard. Mr. Flynn’s attorney declined to accept any of the three alternatives and proceeded to argue against them and in support of the motion to dismiss without prejudice. In the course of the argument, an offer was made on Mr. Flynn’s behalf that he bind himself by an agreement not to sue the defendants in this case on these claims and to pay just costs. Mr. Flynn’s attorney stated that a dismissal without prejudice was sought because of fear that a dismissal with prejudice would preclude him from litigating certain issues in the Federal case against Hubbard. He stated further that his client had no interest in pursuing the instant case at this time. Counsel for the defendants only reiterated their position that Mr. Flynn would seek to recover damages from the defendants in this case should the Federal case against Hubbard be won by default. Without hearing further from counsel for any of the defendants, the judge announced his decision from the bench to allow the motion with prejudice. Immediately thereafter, Mr. Flynn’s attorney sought to withdraw the motion to dismiss but was not permitted to do so. Further material was filed by the plaintiff with the court after the ruling, and a request for reconsideration was filed and denied.
1. The position of the Church of Scientology of California, Inc., is different from that of the other defendants. The case against that party was effectively terminated on September 12, 1983, as a result of the filing by the plaintiff of a notice of dismissal under Massachusetts Rule of Civil Procedure 41(a)(1), 365 Mass. 803 (1974), which allows dismissal “without order of court . . . by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs . . . .” No answer or motion for summary judgment had been served on the plaintiff by the Church of Scientology of California, Inc., on or before that date. In these circumstances, the plaintiff had an absolute right to dismiss that party without prejudice. There was no occasion for the exercise of discretion, and no conditions could be placed on the exercise of that right. American Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963). D.C. Electronics, Inc. v. Nartron Corp., 511 F.2d 294 (6th Cir. 1975). This is so even if the party being dismissed is not the only defendant in the case and even if one or more of the other defendants had filed answers. Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 254-255 (5th Cir. 1973). Terry v. Pearlman, 42 F.R.D. 335, 337 (D. Mass. 1967). Smith & Zobel, Rules Practice Section 41.3, at 48 (1977). [Note 5] The particular status of the Church of Scientology of California, Inc., with respect to the notice of dismissal was not addressed by the judge or by counsel at the hearing or in any of the documentation provided to the judge before the hearing. Whether the inclusion of the Church of Scientology of California, Inc., within the order dismissing the action with prejudice was intentional or the result of oversight, it was error. To the extent that a defendant needs to be protected against the abuse by a plaintiff of his right unilaterally
to dismiss a party without prejudice, the “two-dismissal rule” of rule 41(a)(1) provides that protection. [Note 6]
2. The dismissal of the case against the remaining defendants, with prejudice, poses greater difficulty. Normally a judge is accorded wide discretion in setting “terms and conditions” when dismissing a case under Mass.R.Civ.P. 41(a)(2). GAF Corp. v. Transamerica Ins. Co., $no$665 F.2d 364, 368 (D.C. Cir. 1981). The question presented here would be whether the attachment of the ultimate condition, prejudice, was called for in the somewhat unusual and confusing circumstances of this case. The test we would apply is whether to have done otherwise would have caused substantial prejudice to the defendants. Selas Corp. v. Wilshire Oil Co., 57 F.R.D. 3, 7 (D.C. Pa. 1972). See Wright & Miller, supra Section 2364, at 196.
In arguing that the action of the judge should be upheld, the defendants rely on a number of factors, no one of which by itself would be sufficient to justify the dismissal with prejudice. [Note 7]
“[T]he sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion” (emphasis original). Durham v. Florida East Coast Ry., 385 F.2d 366, 368 (5th Cir. 1967). The offer by the plaintiff to pay costs and to enter into a covenant not to sue would appear to satisfy many of the reasonable concerns of the defendants. See Goldlawr, Inc. v. Shubert, 32 F.R.D. 467 (S.D. N.Y. 1962). It may be, nevertheless, that, considering all of the circumstances together, in light of the complex background of the litigation between the parties, the numerous other cases filed in various courts by these and related parties, the heavy civil caseload of the Superior Court, and the broad discretion accorded to a judge, the determination that dismissal of the action ought to be with prejudice fell within the bounds of reasonableness. We would be reluctant to rule otherwise. For another reason, however, it is not necessary for us to make that determination.
3. Even if we were to regard the dismissal with prejudice to have been a proper exercise of discretion, we think the judge should have permitted Mr. Flynn to withdraw his motion to dismiss when he sought to do so immediately upon the announcement in open court of the ruling on the motion. The defendants argue that because the denial of the plaintiff’s motion to dismiss was one of the three options offered by the judge to counsel at the outset of the hearing, and because counsel did not accept that offer, the plaintiff should have been foreclosed from withdrawing the motion. He had no notice, however, that a possible consequence of his failure to accept
that option at the outset of the hearing might be waiver of that option, and it was reasonable for him to avail himself of the opportunity to be heard orally in support of the motion he had filed. It is generally recognized that a plaintiff, having moved to dismiss voluntarily, and being faced with conditions he finds too onerous, may, if he acts promptly, decline to have the action dismissed and go forward on its merits. Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885, 889 (7th Cir. 1972). Yoffe v. Keller Indus., Inc., 580 F.2d 126, 131 n.13 (5th Cir. 1978), cert. denied, 440 U.S. 915 (1979). GAF Corp. v. Transamerica Ins. Co., 665 F.2d at 367-368. Wright & Miller, supra Section 2366, at 183. 5 Moore’s Federal Practice Paragraph 41.06, at 41-80 (1984). We are aware that on occasion it has been stated that a plaintiff filing a motion voluntarily to dismiss an action should be prepared to take the consequences, including the possibility that the court might dismiss with prejudice. American Cyanamid Co. v. McGhee, 317 F.2d at 298. Considerations of fairness would seem to require, however, that, except in extraordinary situations, a party should not be penalized for having filed a motion to dismiss. The cases which recognize an option on the part of the moving party, when faced with conditions he finds unacceptable, to fall back to the position of litigating the merits of the controversy in the forum of his original choice appear to be based upon such a concept of fairness. Except to the extent that the defendants are called upon to oppose the motion to dismiss, a consideration which can be satisfied by the imposition of costs, the recognition of such an option leaves the defendants no worse off than they would have been had no such motion been filed. They may still have their day in court.
Accordingly, we reverse the judgment and remand the case to the Superior Court for further proceedings.
[Note 1] Church of Scientology of Boston, Inc., Kevin Tighe, Robert Johnson, and David Aden.
[Note 2] The rule provides: “By Order of Court. Except as provided in paragraph (1) of this subdivision (a) [voluntary dismissal by plaintiff by filing a timely notice of dismissal or by filing a stipulation of all parties], an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. . . .”
[Note 3] The complaint in the Van Schaick case involved, inter alia, allegations of fraud, unrelated to the alleged theft of documents. Mr. Flynn, on behalf of the plaintiff in that case, filed a “Motion for a Temporary Restraining Order, for a Preliminary Injunction for Return of Stolen Property and for an Evidentiary Hearing.” After hearing, an order was entered on September 14, 1981, whereby copies of any documents taken were to be furnished to Mr. Flynn and, until further order of the court, the defendants in the case were enjoined from delivering, transferring, distributing, disseminating, or destroying the documents. Further motions were filed, and on April 5, 1982, after a hearing on “Defendants’ Request for Modification of Order,” during which hearing counsel for the defendants agreed to return certain documents to Mr. Flynn, a conditional order was entered vacating the order of September 14, 1981, effective ten days after (1) delivery to Mr. Flynn of all the subject documents in the possession of the defendants’ attorney and (2) the filing of certain representations by defendants’ counsel, including a representation that the defendants would not use the documents for harassment purposes. Also included was an order that the Church of Scientology of California, Inc., produce copies of the documents taken.
[Note 4] Lafayette Ronald Hubbard, also known as L. Ronald Hubbard, according to allegations in the complaint last resided in Hemet, California, and is the “founder, controller, principal and absolute authority over the Scientology organizations and individuals.”
[Note 5] Although there are cases to the contrary, see Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 107-108 (2d Cir.), cert. denied, 345 U.S. 964 (1953), according to “[t]he sounder view and the weight of authority” a defendant may be dismissed even if there are other defendants remaining in the case. 9 Wright & Miller, Federal Practice and Procedure Section 2362, at 149-150 (1971).
[Note 6] Rule 41(a)(1) provides in pertinent part: “[A] notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of this or any other state an action based on or including the same claim.”
[Note 7] They refer first to the length of time during which the case was pending and the absence of diligence on the part of the plaintiff in bringing it forward. We do not view the delay as so unreasonable as to constitute an abuse, particularly in light of the absence of any effort by the defendants to move the case along. Next, the defendants point to Mr. Flynn’s unavailability for the deposition and the timing of the filing of the motion for a voluntary dismissal, on the very day of Mr. Flynn’s scheduled deposition. The effort to schedule Mr. Flynn’s deposition for that date, however, was the first effort by the defendants in this case to schedule the deposition or to conduct any discovery. Mr. Flynn may not have acted promptly or as courteously as one would have liked in an effort to work out a mutually convenient date but, in the absence of a determination that Mr. Flynn was in fact available for the deposition on September 29, 1983, and that he refused to appear, we do not view the deposition scheduling problem as a sufficient basis for the action taken. The defendants argue further that the action was justified because the allegations in the complaint lacked merit. Yet we note that they were sufficiently meritorious to form the basis for some relief afforded by the Federal District Court in the Van Schaick case and for some concessions to be made by counsel for the defendants. The defendants also refer to the expense of the litigation to date as a valid basis for the action taken. The imposition of costs, including counsel fees, as a condition of dismissal, however, ought to have satisfied these interests. Finally, the defendants urge that the action taken was proper because they ought to be allowed to defend themselves in this action and in the forum selected by the plaintiff and not be faced with the same claims at a later time. Mr. Flynn offered assurance that he would not sue these defendants on these claims, and, even if that assurance does not provide complete protection to the defendants, it is not altogether clear why, in fairness, they are entitled to more. (We express no view as to the effect a dismissal with prejudice would have on Flynn’s Federal District Court case.) Moreover, Mr. Flynn’s interest in suing another individual on a broader claim, of which the instant claim is a part, in a different forum is, on the surface at least, a plausible explanation of his desire to have this case dismissed.
Boston lawyer, Scientology locked in battle since 1979
Second of two articles / By Ben Bradlee Jr. / Globe Staff
Boston attorney Michael J. Flynn concedes that the Church of Scientology has become an obsession with him, and, for its part, the church at times has treated Flynn like a demon.
The two sides have fought in and out of court for four years – since Flynn and three associates at his small waterfront law firm began spending nearly all their time representing Scientology defectors in civil lawsuits against the church.
The torrent of vituperation between the parties has tended to blur the legal claims made in 22 suits Flynn has filed around the country since 1979. In the suits, all still pending, Flynn generally asserts that the church has engaged in fraud, misrepresentation, breach of contract and infliction of emotional distress, and that it should repay to the 32 defectors he represents the money they donated to the church, plus damages. The church categorically denies the charges.
Flynn’s most notable Scientology case is the one brought in California last year on behalf of Ronald DeWolf, the estranged son of church founder L. Ron Hubbard. Hubbard has not been seen publicly for seven years. DeWolf
contends his father is either dead or missing, though the judge in the case said recently he believes that Hubbard is alive. DeWolf also alleges that his father’s personal assets, estimated at $500 million, are being
plundered by church leaders, and he is asking to be appointed trustee of his father’s estate.
Each side has accused the other of using ugly, underhanded tactics. The church, calling Flynn a “shyster” and an “extortionist, ” contends he is “the ringmaster of a national media and litigation campaign against
Flynn, meanwhile, likens the church to a group of “Nazis.” He charges it has carried out numerous dirty tricks and acts of harassment against him. Affidavits in support of his contention are on file in US District Court in
Boston in connection with pending litigation involving four defectors.
To support its claims against Flynn, the church often cites what it calls “the Michael Flynn extortion letter.” In the midst of settlement negotiations with the church in 1981, Flynn offered in writing to drop all the litigation filed up to that time and return to Scientology officials thousands of pages of FBI-seized church documents if the church would pay the defectors he then represented “not less” than $1.6 million. If the church did not accept in 14 days, Flynn added, he would proceed with plans to file an additional 8 to 10 suits on behalf of defectors in New York, Washington and Los Angeles. Although at one point the church told Flynn in a letter that it accepted his offer “in principle,” negotiations on details broke down.
Foremost among Flynn’s complaints is the rifling of the trash inside his office compound on Union Wharf for 18 months from 1979 – 1981 by Scientologists to gain information about him and his clients. The church, which contends the trash was “publicly available,” has used documents it found as the basis for nine lawsuits and nine bar complaints against Flynn.
Affidavits by four church defectors – Carol Garrity, Ford Schwartz, Jane Peterson and Warren Friske – allege that church members have conducted numerous acts of harassment against Flynn for the ultimate purpose of
undermining him and his cases. Included in the affidavits were assertions that, in addition to rifling his trash, church members had:
- Contacted some of Flynn’s non-church clients and told them that he had cheated them out of money.
- Telephoned the Internal Revenue Service with false financial information about him, hoping to spur a tax probe.
- Monitored Flynn’s activities closely by watching and photographing visitors to his office and by calling his bank regularly to determine how much money he had deposited in his account, the number of which had been found in his trash.
- Tried repeatedly to plant operatives in his office.
The church refused to be interviewed by The Globe concerning these allegations, saying through its Boston lawyer, Harvey A. Silverglate, that the matter was under investigation.
According to the affidavit from Friske, who said he was heavily involved in anti-Flynn activity until he left the church last year, the church’s Boston mission coordinated its campaign against Flynn with national church headquarters in Los Angeles. He said the Boston organization ” conducted almost daily operations against him for a period of almost 2 1/2 years, since he first became involved in litigation . . . .”
“In connection with some of these operations,” Friske said, “hundreds of telephone calls were made to many people . . . some of which were of an investigatory nature, and many of which were to discredit and harass him
In a sworn deposition taken by Flynn last December, Kevin Tighe said he was the Boston church member who took most of the trash from Flynn’s office dumpster. In the deposition, Tighe said almost daily reports on Flynn’s
activities would be prepared after culling through his trash. The reports would then be sent to the church’s national headquarters.
In April 1982, US District Court Judge W. Arthur Garrity Jr. ordered the church to return all the papers and documents taken from Flynn’s trash. The next month, Silverglate filed a notice with the court stating the
church had complied and returned to Flynn about 20,000 pages of documents and pieces of paper.
What the church did not turn over to Flynn were partial transcriptions of 60 or so of impressions from typewriter ribbons and cartridges that had been discarded into the dumpster by Flynn’s office. Silverglate argued
that some of the transcriptions contained notes made by church members, and that they were, therefore, “work product” protected from discovery by Flynn. Garrity is now in possession of the transcripts, pending a ruling
on Flynn’s request that he be given access to them.
Another former Scientologist who has filed an affidavit concerning activities against Flynn is Jane Peterson, a member of the church’s Las Vegas mission from 1975 – 1980. In her affidavit, she said she observed operations being planned to infiltrate Flynn’s law office and said the church’s express goal was “. . . to get Michael Flynn disbarred.”
Flynn says the church and its attorney have filed nine complaints with the state Board of Bar Overseers, which monitors the conduct of lawyers in the state. Reading from the various complaints, Flynn said they alleged a
range of misconduct including: solicitation of clients, engaging in “religious bigotry,” engaging in threats against the church and its members, and failing to list on his bar application that he once committed a traffic violation for not stopping at a stop sign.
One of the more serious complaints concerned Flynn’s formation of a company called Flynn Associates Management Corp. (FAMCO). Silverglate alleged in an August 1981 bar complaint that Flynn began FAMCO to raise money through the sale of its stock to finance his Scientology litigation.
Flynn said in an interview that he chartered the company as a proposed computer venture with one of his brothers. When the venture did not materialize, Flynn said, another brother, then an investigator for his law firm, proposed reviving the firm so he could sell his investigative services on Scientology to the law firm. Flynn said he rejected the proposal in June 1981 because it would have given “the appearance of impropriety.” He said no stock in FAMCO was ever issued or sold.
In referring the FAMCO complaint to the bar board, Silverglate and his partner, Nancy Gertner, wrote they had “just learned” that the church had been involved in trash-taking, and that it had gone on “without our authorization or prior knowledge.”
Since the FAMCO proposal was one of the items uncovered in Flynn’s trash, Silverglate and Gertner asked the board to rule if it was proper to use the documents as a basis for a bar complaint, or in litigation. Daniel Klubock, bar counsel for the board, said he advised Silverglate that as long as the documents were “legally obtained,” they could be used.
Silverglate indicated his reading of the law was that it is legal to take trash left out in public for collection. But Flynn argues that it constitutes trespassing, larceny and invasion of privacy to take trash if the receptacle is on private property and is privately disposed of, as at Union Wharf.
Flynn said Silverglate had personally filed five of the nine complaints against him. Silverglate refused to discuss them, noting that the proceedings of the Bar Board are confidential. However, he said he would be interviewed about the complaints if Flynn gave him a written waiver to do so. Flynn declined, but did provide such a waiver so bar counsel Klubock could discuss the matter.
Klubock said the church allegations of misconduct against Flynn had been dismissed, while Silverglate’s have been consolidated into one ” grievance,” pending a determination of whether it should be upgraded to a full- fledged
complaint that would be reviewed by the Bar itself.
Flynn, a resident of Boxford, is a 38-year old graduate of Holy Cross and Suffolk Law School, and a former associate in the Boston law firm of Bingham, Dana & Gould. Married with three children, he is also a pilot who
owns his own twin-engine plane.
Flynn began his Scientology litigation in mid-1979 after a church defector, LaVenda Van Schaick, then of Somerville, requested he file suit to recover the $12,800 she said she had donated to the church. Several months later,
nine high church officials were convicted in connection with a scheme to infiltrate and break into several federal agencies in Washington that were investigating Scientology.
Fortuitously for Flynn, the Justice Department made public some 30, 000 documents it had seized from the church, which formed the basis of the prosecution. Flynn said the documents, which in part detailed the church’s
plans and programs to attack its critics, confirmed for him his suspicions that he was a similar target of the Scientologists. Shortly after photocopying all of the documents, Flynn filed a $200 million class- action suit against the church on behalf of Van Schaick and other ” victims” of the church. (The counts containing the class action claims were later dismissed by Garrity).
Coming at a time when the church was receiving bad press because of the conviction of nine of its officials, Flynn’s suit attracted the attention of many Scientology defectors.
In his fourth year of litigation against the church, Flynn has become the principal source of anti-Scientology information and documents in the country.
He has also served as a contact for law enforcement officials. He cooperated with authorities in Toronto, who in March of this year raided church headquarters in that city and seized a truckload of documents as part of an investigation of alleged consumer and tax fraud. Flynn is also cooperating with pending criminal investigations of the church in Florida and Arizona.
In the DeWolf case in California, the church notes Flynn is seeking to protect Hubbard’s assets, while in other suits he is trying to seize them.
“You can’t have it both ways,” Heber Jentzsch, president of the Church of Scientology International, said in a recent interview. “Flynn is a man who’s given new definition to the word shyster . . . The man is unconscionable. We don’t pay extortionists . . . We’ll outlast him by far . . . You don’t criticize a man’s religion in this country and get away with it.”
Responds Flynn: “They try to portray me as the ambulance- chasing, money-grubbing attorney. It’s a bunch of garbage. My office is out more than $350,000 . . . I represent regular people pursuing a group that can only be compared to the Nazis. The scope of this thing is staggering. I used to be a normal guy, but litigating against this cult has made me very careful.”