Dandar vs Scientology (Amended Motion for Injunction)

7/30/2019 Dandar vs Scientology (Amended Motion for Injunction)

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

TAMPA DIVISIONCase No: 8:12-cv-2477-T-33EAS

KENNAN G. DANDAR,and DANDAR & DANDAR, P.A.,

Plaintiffs,v.CHURCH OF SCIENTOLOGYFLAG SERVICE ORGANIZATION,INC., F. WALLACE WALLY POPE,JR., JOHNSON POPE BOKOR RUPPEL& BURNS L.L.P., and DAVID MISCAVIGE

Defendants. ______________________________________/

PLAINTIFFS VERIFIED AMENDED MOTION FOR EMERGENCY PRELIMINARYINJUNCTION AND MEMORANDUM OF LAW

Pursuant to Rule 65, Fed. R. Civ. P ., and Local Rule 4.06, and the newly filed First Amended

Complaint, [Dkt 24], Plaintiffs seek issuance of a preliminary injunction in this 42 U.S.C.1983,

1985, and 1986 case against all Defendants, including their employees, agents, attorneys, and all

persons and entities in active concert and participation with Defendants:

To prohibit Defendants, acting under color of state law, from proceeding to anyhearing, including the one scheduled on November 26, 2012, before the state court,and any hearing or filing any pleading in state court against Plaintiffs to obtain anyfurther state order and/or state judgment against Plaintiffs, or to execute on any statecourt judgment, until this court has addressed the Defendants violations of 42U.S.C.1983, as alleged in the Amended Complaint filed herein, including anyappeal thereof.

FACTSPlaintiffs enjoy rights under the U.S. Constitution of freedom of association, freedom of

speech, liberty and property interest in their employment and livelihood, and due process under the

Fifth, Sixth and Fourteenth Amendments. State action, by use of the state court system and state

judges, cannot be employed by Defendants to deprive Plaintiffs of these rights while Plaintiffs are

Case 8:12-cv-02477-VMC-EAJ Document 25 Filed 11/23/12 Page 1 of 25 PageID 368


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The closed McPherson case was randomly assigned to an active Circuit Court Judge, but1

mysteriously, it was reassigned to senior judge Crocket Farnell, who has maintained the secrecyof the proceedings over Dandars objections. See argument herein on how this is not proper

procedure.

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engaged in lawful conduct. Plaintiffs incorporate their newly filed First Amended Complaint herein.

After Judge Merrydays injunction was reversed on appeal, Judge Merryday reluctantly

granted the motion to withdraw. Judge Beach recused himself, and another Senior Judge, Crocket

Farnell, took over the closed McPherson case, without any record assignment. 1

The following significant points of fact demonstrate a clear violation of Plaintiffs

constitutionally guaranteed federal rights under the Bill of Rights by use of coercive governmental

power as part of the agreement or conspiracy Defendants obtained with the state court, acting

arbitrarily and capriciously, without due process, by Defendant state actors:

1. Plaintiffs were never on notice by court order that they would be held bound by the

CSA which they never signed as a party in their individual capacities, as set forth in the Amended

Complaint filed herein. If the CSA is governed by Floridas mediation rules of civil procedure,

Florida law holds that in order to impose sanctions, consisting of attorney fees and costs, the person

upon whom the sanctions are being imposed must (1) be a party in the case; (2) the party was court-

ordered to mediate; (3) the party must sign the mediation agreement; (4) the case must be pending;

and (5), the breach must be an executory part of the agreement and not concerning something outside

of the pending case. There are no exceptions. The Florida state courts ignored Florida law in

deprivation of Plaintiffs guaranteed rights under the Bill of Rights, effecting their livelihood.

Plaintiffs were not on notice that state courts would violate Judicial Canons 2A and 3D(2). Plaintiffs

were not on notice that Rule 1.730( c), Fla. R. Civ. P., could be used by a court, with or without

subject matter jurisdiction, as a punitive criminal contempt sanction for violation of a mediation



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agreement, when Plaintiffs were not parties in the case, especially since none of the other required

conditions stated above are present.

2. Plaintiffs have been denied due process, service of process, public hearings, open

court files, and a final public trial in this closed-case, motion practice, in a sealed proceeding, all of

which are in direct violation of Florida law.

3. There existed no prior state court order giving Plaintiffs notice enforcing a practice

restriction against Plaintiffs before Plaintiffs filed the Brennan case, and no notice of retroactive

application.

4. Plaintiffs were not on notice that a court lacking subject matter jurisdiction would

entertain a motion filed in the McPherson case after it had been dismissed with prejudice without

a court-ordered reservation of jurisdiction to enforce the terms of the settlement agreement, when

Florida law is clear that a new suit must be filed under such circumstances.

5. Plaintiff was not on notice that the Defendants could choose their preferred judge

instead of the required random rotation.

6. Plaintiffs were never on notice that Defendants could obtain injunctive relief by way

of court order forcing Plaintiffs to withdraw from the Brennan case, and then also recover damages,

when Florida law is clear that only one remedy, through the doctrine of election of remedies, is

available.

7. Plaintiffs were never on notice that Defendants could grossly multiply proceedings

in state court lacking subject matter jurisdiction, as well as the Brennan federal court, by filing

multiple motions and having multiple hearings, when all that was necessary was to file a simple

motion to disqualify in the Brennan federal court, as Judge Merryday opined, without punitive

monetary damages, severely and grossly exceeding the scope of Rule 1.730 ( c),



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8. By the Florida state courts ignoring state law, the Defendants retaliated against the

Plaintiffs for exercising Plaintiffs rights protected by the U.S. Constitution. Plaintiffs were never

on notice that Defendants, through the state court, could obtain civil and criminal contempt sanctions

when Plaintiffs not only had no opportunity to purge, but were in compliance with federal court

orders, the local federal rules of court, and the ethical mandates of the Rules Regulating the Florida

Bar.

9. Plaintiffs have rights guaranteed under the U.S. Constitution which cannot be

abridged without procedural and substantive due process of law through the Fifth and Fourteenth

Amendment, through coercive governmental power of the state courts which are arbitrary and

capricious. Those rights include, but are not limited to, the right of free speech, the right of

association, the right to open and public hearings and trials, and the liberty and property rights in

business reputation and goodwill, employment, and livelihood. Notice required under due process

was not present when a dismissed state civil action was reactivated by simply filing a motion when

the terms of dismissal contained no such power; and the basis for the Defendants request for not

coercive but punitive, excessive, unfair sanctions exceeding one million dollars are out of all

proportion to the perceived harm without providing the Plaintiffs the full panoply of procedural

safeguards required before civil contempt is converted to criminal contempt.

10. Plaintiffs had no opportunity to comply with a state court order demanding

withdrawal from Brennan , an order issued by a state court without subject matter jurisdiction, once

the federal suit was filed, until the federal court granted the motion. The granting of the motion was

impossible since substituted counsel was not found. The Plaintiffs represented an estate, and

therefore, the Florida Probate Code, the Local Rules of the Middle District, and the Rules Regulating



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the Florida Bar require that the estate be represented by counsel. Plaintiff was not on notice that the

state court would order the intentional violation of these Rules and ethical obligations.

MEMORANDUM OF LAW IN SUPPORT OFMOTION FOR PRELIMINARY INJUNCTION

I. Parallel Proceedings are Permitted

This action is not barred by the fact that there are ongoing state court proceedings. The state

court matter has not ended, whether or not it is completely without subject matter jurisdiction, even

though there have been two completed appeals resulting in per curiam affirmances; the first judge

recused himself; there is a pending appeal to the 2 DCA by Dandar, which the 2 DCA dismissednd nd

stating that the last order entered was not a final appealable order; and there is a final hearing in the

closed-to-the-public Clearwater courtroom set for November 26, 2012. Florida law recognizes that

the state court proceeding, assuming subject matter jurisdiction, is not at an end because even after

entry of a final judgment following the November 26, 2012 hearing, the entire matter is then ripe for

appellate review on all issues under the doctrine of manifest injustice. Delta Property

Management v. Profile Investments, Inc. , 87 So.3d 765 (Fla. 2012); VLX Properties, Inc. v. Southern

States Utilities, Inc ., 792 So.2d 504, 507 (Fla. 5 DCA 2001). This 1983 action challenges the stateth

orders as they were entered under false pretenses, fraud, and wrongful acts of the Defendants, and

all state proceedings in both the circuit and district courts were sealed, closed proceedings.

The prior appeals resulting only in a per curium affirmances are of no significance under state

law. As explained in Siegel v. Lepore , 234 F.3d 1163 (11 Cir. 2000), where no final judgment hasth

been entered in the Florida state court, plaintiffs are not barred from bringing constitutional

challenges to the order. In Battle v. Liberty Nat. Life Ins. Co. , 877 F.2d 877 (11 Cir. 1989), theth

court recognized that the Full Faith and Credit Act requires that a federal court give preclusive effect



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to a state court judgment to the same extent as would courts of the state in which the judgment was

entered. First Alabama Bank of Montgomery v. Parsons Steel, Inc ., 825 F. 2d 1475 ( 11th Cir.

1987), cert. denied sub nom . McGregor v. First Alabama Bank of Montgomery , 484 U.S. 1060, 108

S.Ct. 1015, 98 L.Ed.2d 980 (1988); Cable Holdings of Battlefield, Inc. v. Cooke, 764 F.2d 1466,

1473 (11th Cir.1985). See Migra v. Warren City Sch. Dist. Bd. of Educ ., 465 U.S. 75, 81, 104 S.Ct.

892, 896, 79 L.Ed.2d 56 (1984) (holding that under the Full Faith and Credit Act, a federal court

must give the same preclusive effect to a state court judgment as another court of that state would

give). However, Florida courts do not give any precedential value to the subject appellate

decisions , which are commonly referred to as PCA decisions. The decision of the Florida Second

District Court of Appeal was a per curiam affirmed without opinion, thus, has no precedential value.

Department of Legal Affairs v. District Court of Appeal, 5th Dist. , 434 So.2d 310, 311 (Fla. 1983)

(a per curiam decision without opinion does not establish any point of law; and there is no

presumption that the affirmance was on the merits). A per curiam affirmance without opinion

does not bind the appellate court in another case to accept the conclusion of law on which the

decision of the lower court was based . Id . at 312. Likewise, the PCAs have no binding affect on

this court. The Siegel court also stated that for similar reasons, neither res judicata nor collateral

estoppel bars the courts consideration of the issue of the constitutionality of the state court

orders . This court is to look to Florida law to determine the application of preclusive doctrines.

Florida adheres to the traditional requirement of mutuality of parties in its application of res

judicata. See Albrecht v. State of Florida, 444 So.2d 8, 11 (Fla.1984); State Street Bank & Trust Co.

v. Badra, 765 So.2d 251, 253 (Fla. 4 DCA 2000) (citing Youngblood v. Taylor, 89 So.2d 503, 505th

(Fla.1956)). Florida similarly requires mutuality of parties in the application of collateral estoppel.

See Stogniew v. McQueen, 656 So.2d 917, 91920 (Fla.1995). Further, the doctrine of collateral



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Exxon-Mob il Corpo ra tion v. S au di Ba sic Indu str ies Co rporation , 544 U.S.280, 125 S.Ct. 1517, 1612

L.Ed.2d 454 (2005).

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estoppel bars identical parties from relitigating only those issues that have previously been decided

between them. See Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977). In Siegel , the court

noted that the parties to the case are not the same parties that appeared before the Florida Supreme

Court in another case, thus neither doctrine applied.

Here, Brennan did not involve the same parties before this court, thus neither preclusive

doctrine applies here. Further, the state court has not entered a final judgment to which full faith and

credit is to be afforded, and the 11 Circuit in Brennan erred in considering the state order to be ath

judgment. Now that this 1983 action has been filed before the state proceedings have ended, this

court may render its own decision on the 1983, 1985, and 1986 claim. Nicholson v. Shafe , 558

F.3d 1266, 1274 (11 Cir. 2009) (We hold that, in light of Exxon-Mobil, state proceedings have notth

ended for purposes of Rooker-Feldman when an appeal from a state court judgment remains pending

in state court at the time that the state court loser commences the federal court action.) Therefore,

this court is not acting as an appellate court of the state case. Under Exxon-Mobil , the Rooker-2

Feldman federal bar due to lack of subject matter jurisdiction does not apply if the federal action was

commenced before the state court case came to a complete end, which includes exhausting all

appeals. Therefore, this federal action can proceed in parallel with ongoing state-court litigation.

With parallel federal proceedings, this court may adjudicate under 42 U.S.C.1983 whether the

rights guaranteed under the U.S. Constitution have been violated by Defendants in a closed-to-the-

public courtroom in Clearwater, Florida, for the reasons expressed below.



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II. Acting under Color of Law

The Fourteenth Amendment subjects the states and state actors, i.e., private persons acting

under color of state law, to liability for violation of rights protected under the U.S. Constitution. See

McCreary County, Ky. v. ACLU of Kentucky, 545 U.S. 844, 853 n.3 (2005); Santa Fe Independent

School District v. Doe, 530 U.S. 290, 301 (2000). Where an official act of a state court judge was

the product of an agreement or conspiracy involving the state court judge with a private party, such

as the Defendants, then this is indeed acting under color of state law and it is has no consequence

that the state court judge may in fact be immure or not joined in as a party. Dennis v. Sparks , 449

U.S. 24, 27-29 (1980) (such conduct stands a motion to dismiss even if the complaint does not allege

that defendants were acting under color of state law). If a private actor enters into an agreement

with any state official to deprive a party of a constitutional right then there is liability under 1983.

Id.; Tower v. Glover , 467 U.S. 914 (1984); Adickes v. S.H. Kress & Co. , 398 U.S. 144 (1970); and

Jallali v. U.S.A. Funds , 2012 WL 3291873, 4 (S.D. Fla.). Cox v. Mills, 465 Fed.Appx. 885 (11 Cir.th

2012) (An otherwise private person acts under color of state law when he is a willful participant in

joint action with a state actor.) This Court correctly announced this law in the case of Brivik v.

Murray , 212 WL 4761267 (M.D. Fla), referring to this circuits law as stated in Harvey v. Harvey,

949 F.2d 1127, 1130 (11 Cir 1992), where a defendant can be deemed to act as state actors if oneth

of the following conditions is meet:

(1), The state coerced or at least significantly encouraged the action alleged to violatethe Constitution (State Compulsion Test); (2), The private parties performed a

public function that was traditionally the exclusive prerogative of the State (PublicFunction Test); or (3)The State had so far insinuated itself into a position of interdependence with the private parties that it was a joint participant in theenterprise. (Nexus/Joint Action Test).

The state courts decision not to follow well-established laws, court rules, Bar Rules, Judicial

Cannons significantly encouraged the Defendants in their persistent course of conduct in violating



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Plaintiffs constitutional rights, thus meeting the State Compulsion Test. A retroactive imposition

of a practice restriction, after the alleged violation occurs, violates Plaintiffs vested property rights

by state actors. Landgraf v. USI Film Products , 511 U.S. 244, 265-67, 114 S. Ct. 1483, 1497-98,

128 L. Ed. 2d 229 (1994) .

Only the state, through disciplinary procedures under the exclusive control of the Supreme

Court, can discipline attorneys or restrict their practice of law. Here, the Defendants, through their

joint enterprise, agreement, and/or conspiracy with the inferior state court, has assumed the role of

the Florida Supreme Court in bringing disciplinary proceedings, restricting the practice of law, and

now ordering restitution, thus meeting the public function test. Critically, however, the Defendants

are sanctioning Dandar for complying with his ethical obligations to the federal court and his client,

as determined by the Florida Bar Ethics Counsel.

The Nexus/Joint Action test has also been met because without the full cooperation of Judge

Beach and the inferior state courts in violating the Judicial Cannons, Florida Bar Rules, Procedural

Rules, and a plethora of binding case law, the Defendants would not have been able to impose the

illegal practice restriction, and being awarded to do so, in return for the benefits Pope can provide

in his role as an attorney for the Florida Bar and Judicial Qualifications Committee.

Since the state has insinuated itself with the private party into a position of interdependence

with the private party, then it must be recognized that the private party is a joint participant with the

state in the challenged activity. Burton v Wilmington Parking Authority , 365 U.S. 715, 725 (1961).

Symbiotic relationship must involve the alleged Constitutional violation. It does here.

In this action, the state of Florida is involved through the state court judges. Bringing in

Robert Beach as judge over the McPherson case was another goal of Defendants. Additional

evidence of the conspiracy with Judge Beach is found in the December 3, 2003, hearing transcript,



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where Judge Beach followed the demand of the Defendants that the case would never settle as long

as Dandar was counsel. This type of relationship between a private party and a state court judge

transforms the private party into a state actor under 1983. All of the unethical ex parte contact was

directed by the supreme leader of Scientology, David Miscavige, pursuant to testimony of Mr.

Rathbun. [Dkt 18]

The terms of s 1983 make plain two elements that are necessary for recovery. First,the plaintiff must prove that the defendant has deprived him of a right secured by theConstitution and laws' of the United States. Second, the plaintiff must show that thedefendant deprived him of this constitutional right under color of any statute,ordinance, regulation, custom, or usage, of any State or Territory. This secondelement requires that the plaintiff show that the defendant acted under color of law.

Adickes v. S. H. Kress & Company , 398 U.S. 144, 90 S.Ct. 1598, 1604 (1970). See also , Lugar v.

Edmondson Oil Co., Inc . 457 U.S. 922, 102 S.Ct. 2744 (1982) (a procedural scheme created by

state law through state courts is a product of state action and is thus subject to constitutional

restraints and properly may be addressed in action under 42 U.S.C.A. 1983; whether there is such

a close nexus between the State and the private conduct allegedly causing the deprivation of a federal

right that the conduct can fairly be attributable to the State); Cypress Ins. Co. v. Clark , 144 F.3d 1435

(11 Cir. 1998) (damages to a plaintiff's business reputation are only recoverable in a 1983 actionth

if those damages were incurred as a result of government action significantly altering the plaintiff's

constitutionally recognized legal rights). The Fourteenth Amendment subjects the state and state

actors, i.e, private persons acting under color of state law, liable for violation of rights protected by

the U.S. Constitution. McCreary County, KY v. ACLU of KY, 545 U.S. 844 (2005).

The Defendants also interfered with the property right of the Brennan estate by obtaining an

injunction in state court through a procedural scheme created by the Defendants and state judge

Robert Beach to deprive Dandar of his liberty and property rights. Cypress Ins. Co. v Clark, 144



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F.3d 1435 (11 Cir.1998). The liberty right guaranteed under the due process clause of theth

Fourteenth Amendment means ...the right of a citizen to be free in the enjoyment of all his facilities;

to live and work, as and where he wills; to earn his livelihood; enter into all contracts which may be

proper, necessary and essential. Buxton v. City of Plant City, Florida , 871 F.2d 1037 (11 Cir.th

1989).

Plaintiffs procedural and substantive due process rights were violated, relying on Collens

& Company, Inc. v City of Jacksonville, 38 F.Supp 2d 1338, 1342 (M.D. Fla. 1998), and the cases

cited therein. Procedural due process concerns proper notice and proper hearing at a meaningful

time and in a meaningful manner. It also concerns prior notice of penalties. See, Johansen v.

Combustion Engineering, Inc. , 170 F.3d 1320, 1337 (11 Cir. 1999)(due process requires fair noticeth

that violation of a rule or statute might subject an offender to excessive punitive penalties). Clearly,

due process was not afforded to Dandar as there was no notice prior to filing the Brennan action that

the CSA is a practice restriction.

Substantive due process prohibits arbitrary and capricious actions under color of state law

or by said actors against the vested rights guaranteed under the U.S. Constitution. Reserve, Ltd. v.

Town of Longboat Key , 17 F.3d 1374, 1379-80 (11 Cir. 1994) (citing Board of Regents v. Roth, 408th

U.S. 564, 577 (1972)); and Villas of Lake Jackson, Ltd. v. Leon County , 121 F.3d 610, 614 (11 Cir.th

1997). Within the substantive due process analysis, the court looks to see whether or not there is an

abuse of governmental power sufficient to allege a Constitutional violation. Rymer v. Douglas

County , 764 F.2d 796, 800 (11 Cir. 1985). A deprivation is of Constitutional Stature if it isth

undertaken for improper motive and by means that were pretextual, arbitrary and capricious, and

without a rational basis. Greenbrier, Ltd. v. City of Alabaster , 881 F.2d 1570, 1577 (11 Cir. 1989).th



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Removing Dandar as counsel simply because Defendants demanded it is arbitray, capricious, and

pretextual.

Sanctions imposed for civil contempt to coerce compliance cannot be any greater than

necessary to ensure such compliance and may not be so excessive as to be punitive in nature.

Citronelle-Mobile Gathering, Inc. v. Watkins , 943 F.2d 1297, 1304 (11 Cir.1991).th

Substantive due process violations abound in this matter where Judge Beach through a joint

enterprise, agreement, and/or conspiracy with the Defendants, intentionally ignored the law and court

rules for the improper motive to make the McPherson go away , then retaliating against Dandar for

daring to represent another injured party against Scientology.

III. An Injunction is Warranted

The federal court may properly issue an injunction against the Defendants from proceeding

in state court. Mitchum v. Foster , 407 U.S. 225, 242-243, 92 S.Ct. 2151, 2162 (1972) (...Congress

plainly authorized the federal courts to issue injunctions in s 1983 actions, by expressly authorizing

a suit in equity as one of the means of redress. And this Court long ago recognized that federal

injunctive relief against a state court proceeding can in some circumstances be essential to prevent

great, immediate, and irreparable loss of a person's constitutional rights. ). Since the Florida state

courts would not give res judicata effect to state orders entered to date, as the state proceedings has

not ended, then the federal court can enjoin the state court proceedings by enjoining the Defendants.

The Court should issue a preliminary injunction because: (1) Plaintiffs are likely to succeed

on the merits; (2) Plaintiffs will suffer imminent and irreparable injury absent an injunction; (3)

Plaintiffs would suffer greater harm without injunctive relief than Defendants would suffer if the

injunction is granted; and (4) the public interest would be served by enjoining Defendant's



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unconstitutional acts. See International Cosmetics Exchange, Inc. v. Gapardis Health and Beauty,

Inc., 303 Fd. 3d 1242, 1246 (11 Cir. 2002). See also, Local Rules 4.05(b)(4) and 4.06(b)(1).th

1. Plaintiffs Are Likely to Succeed on the Merits / Deprivation of

Rights Without Due Process of Law

A. Liberty and Property Rights

Dandar has recognized liberty and property interests as an attorney with his clients and

prospective clients. Little v. City of North Miami , 805 F.2d 962 (11 Cir.1986) (attorney'sth

professional reputation implicates liberty and property interests protected by the Constitution);

Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524 (1 Cir. 1983 )st (plaintiff would have a

viable first amendment claim if he could show the (state actor in procuring the state order) was, in

fact, retaliatory for exercise of constitutionally protected freedoms. ); Marrero v. City of Hialeah ,

625 F.2d 499 (5 Cir.1980), cert. denied , 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337th

(1981)(state-created property right in business goodwill is an interest protected by the Due Process

Clause); Economic Development Corp. of Dade County v. Stierheim , 782 F.2d 952 (11 Cir.1986)th

(Florida law recognizes business goodwill as an interest protected by the Due Process Clause); Board

of Regents v. Roth , 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (to establish a procedural

due process claim, a plaintiff must first show the deprivation of a liberty or property interest

protected by the Due Process Clause). Buxton v. City of Plant City, Fla. , 871 F.2d 1037 (11 Cir.th

1989) (The Supreme Court has held liberty, as guaranteed in the due process clause of the

fourteenth amendment to mean....to be free to use them in all lawful ways; to live and work where

he will; to earn his livelihood by any lawful calling; and to pursue any livelihood or avocation, and

for that purpose to enter into all contracts which may be proper, necessary, and essential to his



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The Second District Court of Appeal impliedly recognized that Judge Beach lacked subject matter 3

jurisdic tion, bu t held Dandar w as pr ocedurally b arr ed from r ais ing this a rgument, p res umably because Da ndar failed to raise this argument in the first appeal in 20 09 following the McPherson dismissal with prejudice. Da nd ar v.Church of Scientology Flag Service Organization, Inc . 59 So.3d 144 (Fla. 2 DCA 2011), even though there wasnd

and continues to be no final judgment.

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carrying out to a successful conclusion the purposes above mentioned.). The Defendants have acted

in concert with state court judges in a proceeding in a closed-to-the-public courtroom in Clearwater,

Florida, and completely lacking subject matter jurisdiction, in implementing state action, by

obtaining orders requiring Dandar to withdraw from the Brennan case in the Middle District of

Florida. As the United States Supreme Court explained, the notice must be reasonably calculated,3

under all the circumstances, to apprise interested parties of the pendency of the action and afford

them an opportunity to present their objections. The notice must be of such nature as reasonably to

convey the required information, and it must afford a reasonable time for those interested to make

their appearance. Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652,

94 L.Ed. 865 (1950); Fuentes v. Shevin , 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)

(stating that procedural due process under the Fourteenth Amendment of the United States

Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a

meaningful manner).

By forcing Dandar to withdraw from Brennan , sanctioning him for not just time spent in state

court with multiple motions of contempt and criminal contempt, but also for what was taking place

in federal court, i.e., abiding by the federal court rules and orders, and ethical obligations to the

Brennan Estate, and with no ability to purge contempt sanctions in state court, is violative of

Dandars federally-protected constitutional rights, particularly when Dandar does not come within



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the purview of Rule 1.730, the agreement is a global settlement far beyond a mere mediation of a

wrongful death case, and the claimed amount of sanctions violate due process.

B. Proceedings are Without Subject Matter Jurisdiction

(I) Jurisdiction Cannot be Invoked by a Motion

McPherson was closed upon the filing of a Joint Voluntary Dismissal with Prejudice on June

8, 2004. The subject state court proceedings began on a motion filed in a closed case years later.

There has been no process, service of process, or pleadings to invoke the jurisdiction of the state

court. The state court did not have jurisdiction to consider the complaint-motion in a closed case.

See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 802 (Fla.2003); Stone v. Stone , 873 So.2d

628, 630 (Fla. 2 DCA 2004).nd

A voluntary dismissal pursuant to Rule 1.420, Fla. R. Civ. P ., terminates the litigation

instantaneously, and removes completely from the court's consideration the power to enter an order.

This is equivalent in all respects to a deprivation of jurisdiction. Randle-Eastern Ambulance Serv.,

Inc. v. Vasta, 360 So.2d 68, 68-69 (Fla.1978); Bohlinger v. Higginbotham , 70 So.2d 911 (Fla.1954)

(the trial court's lack of subject matter jurisdiction may be raised at any time.); Wallace v. Townsell ,

471 So.2d 662, 665 (Fla. 5 DCA 1985) (any breach of the settlement agreement must be the subjectth

of a separate action).; Century Elevator Co. v. Spinos , 652 So.2d 451 (Fla. 4 DCA 1995) (a courtth

has no jurisdiction to review, modify, or enforce a settlement in a closed case); Zimmerman v.

Olympus Fidelity Trust, LLC , 847 So.2d 1101, 1103 (Fla. 4 DCA 2003) (when a dismissal withth

prejudice has been filed without any order reserving jurisdiction, a party must file a new cause of

action in order to address any breach of a mediation agreement). Miller v. Fortune Ins. Co., 484

So.2d 1221 (Fla. 1986) (a trial judge has no jurisdiction to reinstate a dismissed proceeding.)



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(ii) Only the Florida Supreme Court Can Regulate thePractice of Law

Article 5, 15, Fla. Const ., provides that [t]he supreme court shall have exclusive

jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons

admitted. In The Florida Bar v. St. Louis , 967 So.2d 108, 121-122 (Fla. 2007), the Court expressed

that a practice restriction contravenes established interest of society, and is void as against public

policy. A practice restriction agreement, particularly one designed to protect the opposing party,

violates public policy and Rule 4-5.6(b). A practice restriction cannot be entered into, and if it is,

it is clearly unenforceable as against public policy. The attorneys seeking to enforce a practice

restriction are guilty of violating Rule 4-5.6. See also, Brumby v. City of Clearwater, 108 Fla. 633,

149 So. 203 (Fla. 1933) (agreements in violation of public policy are void because they have no legal

sanction and establish no legitimate bond between the parties.) Judge Beachs failure to report

Popes violation of Rule 4-5.6 and other Standards and Rules as required by Judicial Cannon 3D(2),

is further evidence of their joint enterprise to violate Dandars constitutional rights.

The Florida Supreme Court has made it clear that no trial or appellate court can restrict an

attorney's practice of law. Pippin v. State , 559 So.2d 708, 711 (Fla. 1 DCA 1990); Outlaw v.st

Douglas , 378 So.2d 892 (Fla. 4 DCA 1979) (It is firmly established in Florida law that the Supremeth

Court alone is vested with exclusive jurisdiction to regulate the practice of law). In direct violation

of this binding precedent, Judge Beach announced that was going to hold disbarment proceedings

in his closed courtroom, in furtherance of his enterprise with the Defendants. Under a reasonable

standard, would anyone be on notice that a state court would impose sanctions, let alone in excess

of one million dollars, for filing a suit in federal court when there was no agreement for a practice

restriction, the CSA does not contain those words, there was no prior order imposing a practice



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Scientology attorney Monique Yingling of the W illiams & Co nnolly, Washington, D.C., confirmed in an4

affidavit that Dandar objected to a practice restriction at mediation.

See also, ABA Formal Opinion 93-371; No rth Carolina Opinion RPC 179 (1994 ); California Formal5

Opinion 1988-104; Oregon Opinion 1991-47; Michigan Bar Opinion CI-1165, Texas Opinion 505 (1995);Association of the Bar of the City of New York, Opinion 199 9-3; Tennessee Ethics Committee Opinion 97-F-141.

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restriction, where Dandar objected to a practice restriction, and where a practice restriction is void4

as a matter of public policy and the Rules Regulating the Florida Bar as stated by the highest state

court? Chandris, S.A. v . Yanakakis , 668 So.2d 180 (Fla. 1996); The Florida Bar v. St. Louis , 967

So.2d 108, 121-122 (Fla. 2007); Florida Ethics Opinion No. 04-2, 2005 WL 4692972 (there is a

strong policy favoring the publics unfettered choice of counsel, and a practice restriction is void and

unenforceable where it is used to make a plaintiffs counsel to go away and never come back). See 5

also, Adams v. Bell South Communications, Inc., 2001 W.L. 34032759 (S.D. Fla. 2001).

In St. Louis and Adams, a practice restriction agreement, particularly one designed to protect

the opposing party, violates public policy and Rule 4-5.6(b). The Defendant attorneys seeking to

enforce a practice restriction are guilty of violating Rule 4-5.6, St. Louis ; Adams , Chandris , however

the state court is awarding them for so doing because Judge Beach imposed the practice restriction

despite these cases and Ethics Opinion because they were decided after the CSA was entered, despite

the fact that the Rule was in effect and Chandris was published.

C. Ordering Withdrawal in Brennan / Ordering Ethics Violations

Based on an order from Judge Beach interpreting the language in the CSA to be a practice

restriction against Dandar prohibiting him from ever representing another client against

Scientology in any jurisdiction as he was told to do by Defendants, additional orders were entered

finding Dandar in contempt of court because the Brennan court did not grant Dandars motion to

withdraw, because new counsel could not be located. Rule 5.030(a), Fla. Prob. R ., requires a



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personal representative to be represented by counsel. Dandar was sanctioned for informing Judge

Merryday the true reasons for requesting to withdraw, instead of using a plain vanilla motion

to withdraw. Thus, the Defendants retaliated against Dandar for telling the truth to Judge

Merryday and meeting his ethical obligations to the federal court and his client.

In order to hold one in contempt, there must be clear and convincing evidence which

establishes that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and

unambiguous; and (3) the alleged violator had the ability to comply with the order. Riccard v.

Prudential Ins. Co. , 307 F.3d 1277, 1296 (11 Cir. 2002). Contempt cannot be found where ath

person is under conflicting court orders and compliance would cause violation of the other court

order. This district court has already found that the imposition of the practice restriction was

illegal. Thus, Judge Beachs finding of contempt upon motion by the Defendants is further

evidence of the conspiracy to retaliate against Dandar and deprive him of his constitutional rights.

Rule 4-1.16(b)(1), R. Reg. Fla. Bar , provides that except as stated in subdivision ( c), a

lawyer may withdraw from representing a client if withdrawal can be accomplished without

material adverse effect on the interests of the client; Rule 4-1.16( c),Compliance with Order

of Tribunal. Local Rule 2.03(b) of the Middle District of Florida, prohibits an attorney from

abandoning the case or withdrawing without court approval. Rule 3-4.1, Rules Regulating the

Florida Bar, provides that all members of the Florida Bar are charged with notice and held to know

the provisions of this rule and the standards of ethical and professional conduct. Standard 6.11

of the Lawyer Sanction Standards provides that disbarment is appropriate when a lawyer: (a) with

the intent to deceive the court, knowingly makes a false statement or submits a false document or

(b) improperly withholds material information, and causes serious or potentially serious injury to

a party, or causes a significant or potentially significant adverse effect on the legal proceeding.



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Standard 6.2, entitled Abuse of the Legal Process, provides for sanctions for the failure to obey

any obligation under the rules of a tribunal. Standard 6.21 provides for disbarment when a lawyer

knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or

another, and causes serious injury or potentially serious injury to a party or causes serious or

potentially serious interference with a legal proceeding. Standard 6.22 provides for suspension

when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a

client or a party, or causes interference or potential interference with a legal proceeding.

The Defendants, through judge Beach, sought to force Dandar to violate the above ethical

provisions. Judge Beach ordering Dandar to withdraw in Brennan , and holding Dandar in indirect

criminal contempt for not doing so, if complied with, would have caused further irreparable harm

to Dandar and his client for violating the Brennan order and the above ethical provisions.

D. Violation of Rule 3.840, Fla. R. Crim. P.

As provided by Pugliese v. Pugliese , 347 So.2d 422 (Fla. 1977), where the order contains

no key to the contemnor's cell, the order is one of criminal contempt. Where the alleged

contemptuous conduct occurred outside the presence of the court, it is an indirect contempt,

requiring all of the due process safeguards afforded by Rule 3.840, Fla. R. Crim. P .

Judge Beach, through the conspiracy with the Defendants and at the insistence by Pope,

failed to afford due process because Rule 3.480 was never followed. Rule 3.840 requires another

judge be appointed by the Chief Justice of the Florida Supreme Court to determine sanctions, if

any, for Dandars alleged violation of Judge Beachs order.

The purpose of civil contempt is to coerce action or non-action by a party, usually at the

instance of the opposing party. Such orders, while usually imposing a jail sentence, provide for

purging the contempt and terminating the sentence. Criminal contempt, on the other hand, is



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punitive and invoked to maintain or to vindicate the authority of the court. When the alleged

contemptuous conduct occurs outside the presence of the court, it is an indirect contempt,

requiring all of the due process safeguards afforded by Florida Rule of Criminal Procedure 3.840.

International Medical Centers, Inc., v. Colavecchio , 563 So.2d 784, 786 (Fla. 4 DCA 1990).th

Before holding one in contempt of court, the court is required to determine that the

condemnor has the ability to purge. Pompey v. Cochran , 685 So.2d 1007 (Fla. 4 DCA 1997).th

This process was not afforded. Not only did Judge Beach know that there was no ability to purge,

but he and the Defendants also had knowledge of the severe ethical violations which would result.

A court should not enter an injunction or order which cannot be enforced through coercive

contempt sanctions. Chandler v. James , 180 F.3d 1254, 1266 (11 Cir. 1999). This is another th

violation of Dandars constitutional rights at the hands of the Defendant state actors.

E. Improper Implementation of Rule 1.730( c), Fla R. Civ. P.

After the Brennan court issued a permanent injunction against the state court and

Defendant, Scientology, the injunction was reversed on appeal. The Defendants in the instant

action then sought additional orders in the state court seeking attorney fees against Dandar

pursuant to Rule 1.730( c ). The court, now judge Farnell, obliged.

Sanctions pursuant to Rule 1.730( c ) can only be imposed against the parties in the case

who were court-ordered to mediate, and only if that party signed the mediation settlement

agreement. Further, the case must be pending and the sanctionable conduct must not be outside

of the lawsuit. None of these four factors are present here to trigger the Rule. Rule 1.730( c)

provides that a court may impose sanctions, including attorney's fees, against a party who fails

to perform under a settlement agreement reached in court-ordered mediation . Lazy Flamingo,

USA, Inc. v. Greenfield , 834 So.2d 413, 414 (Fla. 2 DCA 2003) (emphasis added). See Masseynd



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v. Beagle , 754 So. 2d 146 (Fla. 1 DCA 2000) (reversing the imposition of sanctions against ast

nonparty insurance adjuster).

Here, Dandar was not a party to this wrongful death case, and was never ordered to

mediate, since the only court-ordered mediation was in the wrongful death case of Lisa

McPherson. Thus, the only parties court-ordered to mediate were the named Plaintiff, the Estate,

and the named wrongful death case Defendants. Those are the only parties who can be assessed

attorney fees for failing to perform the executory terms under the mediation agreement up to the

time of the dismissal. Therefore, there is no authority to grant attorney fees or costs for any

alleged breach of the agreement by Dandar under Rule 1.730( c ).

Rule 1.730( c) does not authorize the imposition of sanctions for events occurring outside

of the lawsuit. All of the executory or performance requirements of the CSA were completed prior

to the filing of the Joint Voluntary Dismissal with Prejudice filed on June 8, 2004. All of the

sanctioned acts stated within the state court orders occurred after dismissal. None of the acts

contained in the orders concern the McPherson lawsuit. Most of the sanctioned acts occurred in

the federal court in Tampa.

Rule 1.730( c) expressly authorizes the court to enter judgment on an agreement reached

through mediation under these rules. However, where the allegations of a settlement were

founded on events occurring outside the lawsuit, no such authority exists . Delmas v. Harris ,

806 So.2d 578, 579 (Fla. 4 DCA 2002). As the court noted in George Vining & Sons, Inc. v.th

Jones , 498 So.2d 695, 698-99 (Fla. 5 DCA 1986), a settlement of a law action substitutes a newth

claim for a prior one, which is thereby ended and should be dismissed; if the settlement is not

performed plaintiff has a different cause of action for damages, which necessitates the filing of

a new action.



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Sanctions pursuant to Rule 1.730 can only be imposed in pending litigation. This case was

closed on June 8, 2004. Thus, there was no pending case which afforded the circuit court to

exercise its power to address issues concerning the enforceability of the settlement agreement.

See Stamato v. Stamato , 818 So. 2d 662 (Fla. 4 DCA 2002). .th

It is quite clear that Rule 1.730 requires the signature of the attorney for the party, but also

requires the party's signature to bind the party. City of Delray Beach v. Keiser , 699 So.2d 855,

856 (Fla. 4 DCA 1997); Freedman v. Fraser Eng'g & Testing, Inc. , 927 So.2d 949, 953 (Fla. 4thth

DCA 2006); City of Delray Beach v. Keiser , 699 So.2d 855, 856 (Fla. 4th DCA 1997); Gordon

v. Royal Caribbean Cruises, Ltd. , 641 So.2d 515, 517 (Fla. 3d DCA 1994) ( an attorney's

signature alone, albeit in the presence of the client, is wholly insufficient under [Rule 1.730]

to bind the client, where the client did not sign the agreement, even if the attorney executed the

document in the clients presence at the mediation); Dean v. Rutherford Mulhall, P.A. 16 So.3d

284, 285 -286 (Fla. 4 DCA 2009) (although Deans attorney signed the settlement agreement, theth

settlement agreement did not bind Dean because he did not sign it).

Without the qualifying premise to trigger the applicability of the Rule; court-ordered

mediation of a party; signed by the party to be bound, for matters occurring within the lawsuit that

is still pending, and based upon the well-settled law that any authority to impose attorney fees are

to be strictly construed, Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla. 2003), the state court had

no authority or jurisdiction to impose sanctions under the Rule. However, in furtherance of the

conspiracy, Dandar faces the imposition of sanctions at the November 26, 2012 hearing which

Judge Farnell characterizes as damages for bad faith violations of the CSA.



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F. Entitlement to Public Proceedings

The proceedings in state court have been sealed at the insistence of the Defendants. This

violates Florida law. Both civil and criminal court proceedings in Florida are public events and

adhere to the well established common law right of access to court proceedings and records. Craig

v. Harney , 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947); Barron v. Florida

Freedom Newspapers, Inc ., 531 So.2d 113, 116-117 (Fla. 1988).

2. Irreparable Injury to Business

Plaintiffs have recently declined to represent families having wrongful death cases

because of the imposition of the illegal practice restriction. Even the briefest of infringement

of First Amendment rights constitutes irreparable injury. See, Elrodv. Burns, 427 U.S. 347, 1373-

74 (1976) ("the loss of First Amendment freedoms, even for minimal periods of time,

unquestionably constitutes irreparable injury."). Further, where an infringement on First

Amendment rights is shown, an irreparable injury is presumed. See Cate v. Oldham, 707 F.2d

1176, 1189 (11 Cir. 1983). ABC Charters, Inc. v. Bronson , 591 F.Supp.2d 1272, 1308 (S.D. Fla.t h

2008) (The economic harm faced by Plaintiffs as described in their affidavits constitutes irreparable

injury.); Rio Grande Cmty. Health Ctr., Inc. v. Rullan , 397 F.3d 56, 76 (1 Cir. 2005) (threat of st

substantial loss of business and certainly bankruptcy qualified as a sort of irreparable harm needed

to support preliminary injunction.).

Here, the injury of a judgment in excess of one million dollars, for honoring first a state court

illegal order to withdraw by filing the motion to withdraw, then honoring the Brennan federal court

order denying the motion to withdraw, would be irreparable injury lasting a lifetime, interruption and

destruction of Plaintiffs sole source of income, i.e., a two man law firm, interruption of the firms



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clients needs, and certain individual and corporate bankruptcy, with no harm to Defendants if

injunction issued.

Without prior fair notice that the state court would impose an illegal practice restriction, due

process has been violated affecting constitutionally protected rights for which this court must enjoin.

BMW of North America, Inc. v. Gore, 517 U.S. 559, 562, 116 S.Ct. 1589, 1592 (1996). Jove

Engineering, Inc. v. I.R.S., 92 F.3d 1539, 1558 (11 Cir.1996)(Sanctions imposed for civilth

contempt to coerce compliance cannot be any greater than necessary to ensure such compliance

and may not be so excessive as to be punitive in nature.). The due process clause requires fair

notice that violation of a rule or statute might subject an offender to excessive punitive penalties.

Johansen v. Combustion Engineering, Inc. , 170 F.3d 1320, 1337 (11 Cir. 1999). See also , Laneyth

v. Hospital Bd. of Directors of Lee County, 2010 WL 5161367, 7 (M.D. Fla.). A practice restriction

is void under Florida law. Chandris; St. Louis; Adams. There are no exceptions. The practice

restriction was imposed subsequent to Dandar accepting representation in Brennan . The retroactive

application violates due process protections. Landgraf .

3. Balance of Harms

Plaintiffs suffer an d wi l l suffe r irreparable harm from the clear violation of their First

Amendment rights by Defendants. The Defendants are not at risk of an injunction causing them

harm in excess of the irreparable harm suffered by Plaintiffs. Accordingly, the balance of harms

favors the Plaintiffs being granted an injunction.

4. Public Interest

The public interest is clearly served by an injunction protecting fundamental rights secured

under the Constitution, as well as prohibiting practice restrictions on attorneys. Persons

aggrieved have a constitutional right to their choice of counsel. In The Florida Bar v. St. Louis , 967



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So.2d 108, 121-122 (Fla. 2007), the Court expressed that a practice restriction contravenes

established interest of society and has a tendency to be injurious to public welfare, thus it is void as

against public policy.

5. Bond

No bond should be required. The Defendants would not suffer any harm from the requested

injunction that could be assuaged by recovery from a monetary bond.

CONCLUSION

Plaintiffs are likely to succeed on the merits, and Defendant's actions threaten Plaintiffs with

continuing and imminent irreparable harm. The balance of harms overwhelmingly favors the

Plaintiffs; issuance of the requested injunction; as does the public interest; and no bond should be

required. Accordingly, the above motion for preliminary injunction should be granted.

Under penalties of perjury, I declare that I have read the foregoing motion and that the facts

stated in it are true. /s/ Kennan G. Dandar Kennan George Dandar, Esq.

I HEREBY CERTIFY that on November 23, 2012, I electronically filed the foregoing withthe Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing tothe counsel of record.

/s/ Kennan G. Dandar, Esq.KENNAN G. DANDAR, ESQ.Florida Bar No. 289698Post Office Box 24597Tampa, Florida 33623-4597813-289-3858/Fax: 813-287-0895Attorney for [email protected] (Email)[email protected] (Court Desig.)[email protected] (2d Desig.)

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Dandar vs Scientology (Amended Motion for Injunction)

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