Just picked this up from Hogan's office late today. I know a bunch of people wanted to see it, and I can use suggestions on how to reply. The section near the end trying to get me declared a "vexatious litigant" is particularly twisted. One would think that *I* had filed a whole series of cases against RTC instead of them filing no fewer than 4 against me. I have never filed a case against any scientology operation--though the one I filed against the IRS might have much the same effect. (The ARSCC awards committee agreed that filing against the IRS to get the courts to support the Supreme Court and revoke scientology's tax status rated me an SP 7.) Another point to ponder is the description in this opposition paper of Mr. Cipriano "retaining" Mr. Moxon. (Compare with the declaration.) I believe such behavior is grounds for disbarment. RTC's oppostion is remarkable for what is *not* in it. There are no declarations from Mr. Moxon, Mr. Rosen, Mrs. Kobrin, or even Mr. Hogan denying declarations from Mr. Cipriano, Mr. Ward, or Mr. Berry. However, if you grep on "false" you will find that RTC generally denies the declarations: "a series of allegations that are irrelevant, immaterial, inflammatory, and indeed fantastic, not to mention false." Does this set up the necessary contested facts for an evidentiary hearing? I believe June 16 is an open date for everyone--though I would be open to other offers. Keith Henson THOMAS R. HOGAN Ten Almaden Blvd., Suite 535 Sanjose,CA 95113 (408) 292-7600 Samuel D. Rosen PAUL, HASTINGS, JANOFSKY & WALKER LLP 399 Park Avenue, Thirty-first floor New York, NY 10022-4697 (212) 318-6000 Helena K. Kobrin, SBN 152546 MOXON & KOBRIN 3055 Wilshire Blvd., Suite 900 Los Angeles, CA 90010 (213) 487-4468 Eric M. Lieberman RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C. 740 Broadway, 5th Floor New York, New York 10003 (212)254-1111 Attorneys for Plaintiff RELIGIOUS TECHNOLOGY CENTER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, ) CASE NO. C-96-20271 RMW (EAI) a California non-profit[sic] corporation ) ) PLAINTIFF'S OPPOSITION TO Plaintiff, ) DEFENDANT'S MOTION UNDER ) RULE 60(b)(3), RULE 60(b)(6) AND vs. ) FRAUD ON THE COURT ) H. KEITH HENSON, an individual, ) ) Defendant. ) INTRODUCTION Henson's motion for relief under Fed. R. Civ. P.60(b) is nothing more than a continuation of his frivolous litigation misconduct. The motion merely rehashes unfounded allegations, none of which have anything to do with the judgments in this case, or come anywhere close to impigning the underlying copyright and contempt judgments. Henson's motion is symptomatic of his entire history of litigation misconduct, throughout which he has burdened this Court and the Court of Appeals, as well as RTC and its attorneys, with numerous frivolous filings, including a motion to recuse Judge Whyte, baseless counterclaims that were dismissed, motions for summary and declaratory judgment that were denied, motions to modify or vacate the preliminary injunction that were also denied, and four appeals to the Ninth Circuit.[1] His other meritless conduct has included forcing this Court to issue a contempt sanction for violation of a court order, and to expand on the preliminary injunction order on numerous occasions due to Henson's violations or threatened violations. This latest Rule 60(b) motion must be seen in the light of this long line of earlier abusive litigation tactics. As Henson has boasted, his misconduct has been intentionally aimed at squandering judicial and RTC resources. RTC specifically requests that this Court take measures to put an end to Henson's wasteful misconduct now. I. THE MOTION FAILS TO MEET THE STANDARDS FOR RELIEF UNDER RULE 60(b) (3), BECAUSE IT IS UNTIMELY AND NONE OF ITS ALLEGATIONS ARE RELEVANT TO THE GROUNDS FOR THE UNDERLYING JUDGMENT. A motion under Rule 60(b) (3) must be made within "one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). There are no exceptions to this rule. Thus, as a matter of law, under Rule 60(b) (3), Henson may not request relief from the substantive judgment in the copyright case, which was entered more than a year ago (on May 14, 1998); rather, he can only request relief from the contempt judgment. Under Rule 60(b) (3), "a party has no right to relief." 12 J. Moore, Moore's Federal Practice 60.22 (3d ed. 2000), at 60-65. Rather, "[m]otions for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure are addressed to the sound discretion of the district court." ----------------
Footnote 1 We have chosen not to further burden the Court with declarations, affidavits and attachments of documents with which it is well acquainted. All factual references are to matters in the record.
-------------------- Ailmerica Financial Life Insurance and Annuity Co. V. Llewellyn, 139 F.3d 664, 665 (9th Cir. 1997) (emphasis added). The moving party has the burden of establishing, "by clear and convincing evidence," that the judgment was obtained through fraud, misrepresentation, or other misconduct of an adverse party. De Saracho v. Custom Food Machinery, Inc., 2000 WL 235304, *5 (9th Gr. March 3, 2000). A causal nexus must be established, such that the conduct complained of actually "prevented the losing party from fully and fairly presenting his [case]." Id. The alleged misconduct must always pertain to the litigation process itself, whether during trial or in pretrial proceedings. See, e.g., In re MA' Peacock, 809 F.2d 1403, 1405 (9th Cir. 1987) (failure to disclose material issue did not support relief because moving party had incentive to investigate the issue and could have done so notwithstanding the failure to disclose); De Saracho, 2000 WL 235304 at *5 (withholding of information called for in discovery); Diaz v. Methodist Hosp., 46 F.3d 492, 497 (5th Cir. 1995) (willful perjury at trial); Londorf V. Seefeldt, 47 F.3d 893, 897-88 (7th Cir. 1995) (defense in employment discrimination action based on falsified documents). The litigation misconduct, moreover, must have been "harmful" to the extent of "affect[ing] the substantial rights" of the movant in that litigation. Anderson v. Beatrice Foods Co., 862 F.2d 910,924 (9th Cir. 1988). In Anderson, the movant requested relief under Rule 60(b) (3) on the ground that the adverse party had withheld material called for in discovery. The court held that relief would only be appropriate if "the challenged behavior... substantially... interfered with the aggrieved party's ability fully and fairly to prepare for and proceed at trial." Id. (emphasis added); see also West v. Love, 776 F.2d 170, 176 (7th Cir. 1985) (although misconduct was clear, it did not prevent plaintiff from fully and fairly presenting his case because it was irrelevant to the incident at issue at the trial). None of Henson's allegations could possibly be a ground for relieving him from :he con tempt judgment, let alone constitute "clear and convincing evidence."2 As the Court will recall, Henson was held in contempt for his admitted posting on the internet of testimony sealed by court order. Henson offers no evidence -- let alone clear and convincing evidence -- of any fraud, misrepresentation, or ---------
Footnote 2 Nor, for that matter (and for the same reasons), could they possibly be grounds for relief from the copyright judgment, even had Henson's motion been timely.
------------ misconduct by RTC remotely related to the contempt sanction, but only a series of allegations that are irrelevant, immaterial, inflammatory, and indeed fantastic, not to mention false.3 They are precisely the same type of irrelevant allegations that Henson has been reiterating throughout this proceeding, and which led this Court, during the hearing of May 5, 1998, to admonish that "this is not a case about whether or not... Scientologists are good or bad people or have proper or improper beliefs or have done good or bad things in various parts of the country." Moreover, many of Henson's allegations (for example, that Scientologists, including Mr, Ingram, engaged in various forms of illegal conduct, or that Mr. Rosen threatened and bullied Mr. Berry during trial) were already specifically argued by Henson before this Court. And Henson and Berry were obviously aware before trial in 1998 of any alleged distractions caused by lawsuits against Henson 4 or Berry's own lawsuit against Cipriano, including any alleged conduct of Mr. Moxon or Mr. Ingram. Indeed, Henson admits that he was at that time engaged in picketing against Scientology. Thus, these stale, rehashed allegations prove nothing more than Henson's willingness to impose additional costs on --------------
Footnotes 3 Henson also sought to introduce the declaration of Robert Cipriano in support of his appeal to the Ninth Circuit of this Court's contempt judgment. RTC moved to strike the declaration on the grounds that it had "no bearing" on any of the issues before the Court and was not part of the record below. By Order of December 3,1999, the Court granted the motion. As to that Declaration, the Court should note that, by his own admissions, Cipriano is a convicted criminal and an admitted parole violator, who has been repeatedly involved with business frauds (for which he, of course, claims never to be responsible) and drug abusers. Moreover, the Declaration is explicit that the only involvement of Mr. Moxon or Mr. Ingram with Berry during the period Berry represented Henson in the copyright and contempt proceedings resulted because Berry sued Cipriano, and Cipriano retained Mr. Moxon to defend him. Thus, any claim that Mr. Moxon or Mr. Ingram were responsible for any distraction of Berry is absurd& 4 Indeed, Henson asserted that it was on account of "distraction" that he needed to dismiss the bankruptcy case he had brought in February 1998, the day before trial was to commence, in order to obtain the automatic stay. 5 If Berry was so distracted by litigation he had commenced against Cipriano that he could not competently perform his professional obligations, it was his professional responsibility, of course, to remedy the situation, including, if necessary, by declining to take the case. The notion that a Rule 60(b) motion is Henson's proper remedy for Berry's alleged incompetence or professional misconduct is frivolous. Moreover, if Berry believes he was libeled, the proper remedy is for him to bring an action for libel, and not for Henson to bring the present Rule 60(b) motion.
----------------- the courts and RTC in a frivolous attempt to reopen and relitigate issues decided in the copyright and contempt proceedings. See, e.g., 11 Wright, Miller & Kane, Federal Practice and Procedure Civil 2d SS 2860 at 314 (1995) (the motion will be denied if it is "merely an attempt to relitigate the case").6 Even if these frivolous allegations were true, they would still be irrelevant, for none of them even remotely establishes fraud, misrepresentation, or misconduct of an adverse party in the litigation itself that undermines the contempt sanction. Henson simply offers no evidence or reason to conclude that the alleged third-party misconduct prevented him from fully and fairly presenting his defense to the contempt proceeding. As for Henson's allegation - completely unsupported by any evidence regarding the relevant time periods - that his attorney was the victim of a campaign of libel that "prevented" him from preparing for trial, there is no reason whatsoever to believe that, in the absence of the alleged campaign, the merits of the contempt issue would have been decided in any other manner. Henson's "evidence" is simply not exculpatory, is wholly unrelated to the litigation and has no relevance to Henson' 5 admitted misconduct in posting sealed testimony to the Internet, the subject of the contempt proceeding.1 None of his allegations, for example, even remotely hint at a reason to believe that he did not conduct himself in a negligent and inexcusable manner when he distributed documents that were sealed under a court order. Therefore, Henson's request for relief under Rule 60(b) (3) should be denied. IL THE MOTION FAILS TO MEET THE STANDARDS FOR RELIEF UNDER RULE 60(b) (6), BECAUSE NONE OF ITS ALLEGATIONS CONTAIN ANY INDICATION THAT THE UNDERLYING JUDGMENTS WERE ERRONEOUS. Relief from judgment under Rule 60(b) (6) is an extraordinary and rare remedy. Such relief is granted only "sparingly as an equitable remedy to prevent manifest injustice... where extraordinary -----------------
footnotes 6 The only example that Henson provides regarding the alleged effect of the alleged distraction is that Berry missed the "transforming" argument. The "transforming" argument is frivolous on its face, and there is no evidence of even the remotest causal nexus between Henson's allegations and the failure to raise this meritless argument. 7 As this Court recognized, "[m]uch of what Henson tried to do throughout the case was to turn the lawsuit into a trial of Scientology. Therefore, many of the positions he took before trial and much of what he and his counsel wanted to do, and to some extent did do, during trial had no relevance to the pertinent issues." Order of September29, 1998, at 2.
----------------- circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." United States',. State of Washington, 98 F.3d 1159, 1163 (9th Cir. 1996) (emphasis added) (quoting United States',. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993)). Thus. to qualify for Rule 60(b) (6) relief, the moving party must demonstrate both injury in the form of an erroneous judgment, and "that circumstances beyond its control prevented timely action to protect its interests. Alpine Land, 984 F.2d at 1049. Here, there has been no injury, for there has been no erroneous judgment. None of Henson's allegations provide any reason whatsoever to believe that he did not violate copyright law when he willfully distributed a copyrighted, unpublished work on the internet (conduct this Court had enjoined on the previous day in the Ward case). Moreover, as noted supra, relief under Rule 60(b) is discretionary with the court. Since Henson's allegations cannot possibly lead this Court to conclude that it (or the jury) erred in ruling on the underlying copyright and contempt issues, this is "not one of those rare cases where 'extraordinary circumstances' warrant vacating an 'erroneous judgment."' State of Washington, 98 F.3d at 1163. Moreover, where parties have made deliberate litigation choices, Rule 60(b) (6) should not provide a second chance." In re Pacific Far East Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989). Henson's actions, as well as his attorney's, were "free, calculated and deliberate," 11 Wright & Miller, Federal Practice and Procedure: Civil 2d SS 2864 at 359 (1995), and nothing in Henson's motion or accompanying affidavits even remotely indicates the contrary. Therefore, Henson's request for relief under Rule 60(b) (6) should also be denied. III. THE MOTION FAILS TO MEET THE STANDARDS FOR RELIEF UNDER 28 U.S.C. SS 1655, BECAUSE IT DOES NOT ALLEGE ANY ATTEMPT TO IMPROPERLY INFLUENCE THE COURT. Finally, Henson appears to request relief for "fraud upon the court" under 28 U.S.C. SS 1655. To qualify as "fraud upon the court," the alleged misconduct must "harm the integrity of the judicial process [or the] administration of justice." In re Intermagnetics America, Inc., 926 F.2d 912, 916 (9th Cir. 1991) (quoting Hazel-Atlas Class Co. v. Hanford Empire Co., 322 U.S. 238, 246 (1944)). As the Ninth Circuit has recently reiterated, "'[f]raud upon the court' should... embrace only that species of fraud which does[,j or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." In re Levander, 180 F.3d 1114,1120 (9th Cir. 1999) (emphasis added) (quoting 7 J. Moore &J. Lucas, Moore's Federal Practice 60.33, at 515 (2d ed.1978). This "fraud upon the court" exception is aimed at egregious and severe misconduct directed against the very integrity of the Court, such as perjury where the opposing party has no opportunity to challenge the truth of the testimony. In re Levander, 180 F.3d at 1119. Here, Henson's motion provides no reason or evidence to believe that the alleged actions were "designed to improperly influence the court in its decision." Alexander v. Robertson, 882 F.2d 421, 425 (9th Cir. 1989), 882 F.2d at 424 (emphasis added) In fact, none of the alleged actions had anything to do with the grounds for this Court's decisions in the copyright and contempt trials. It follows that the alleged actions could not have "harmed the integrity of the judicial process." Therefore, Henson's request for relief under 28 U.S.C. SS 1655 should also be denied. IV. THE COURT SHOULD SANCTION HENSON, TO DETER HIM FROM FUTURE ABUSIVE LITIGATION MISCONDUCT. It should now be apparent that Henson has no intention to cease his abusive litigation tactics. Neither repeated rulings against Henson by this Court, the appellate courts, and a jury, nor a contempt sanction, damages, injunctions and attorney's fees awards have had the slightest impact on his willingness to abuse the judicial system. His public statements that he views litigation against RTC and the consumption of judicial resources as "entertainment," his abusive taunts of this Court, and RTC's counsel, throughout the underlying proceedings (among other instances, he boasted, after releasing sealed documents on the internet in violation of this Court's order, that RTC's attorney 'should now sue the Judge'), and this latest motion are all part of a piece, with no end in sight. In these circumstances, the Court should exercise its power to impose sanctions under Rule 11 and 28 U.S.C. SS 1927. Under Rule 11(b), when a party signs a written motion and presents it to the court, that person is representing that: (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment or new law; [and] (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Fed. R. Civ. P.11(b). Because Henson's Rule 60(b) motion is clearly frivolous,8 clearly without basis in law, and clearly lacking in any evidentiary support, and was obviously filed for the improper purpose of harassing RTC by increasing the cost of litigation, the Court may "[on] its own initiative... enter an order describing the specific conduct that appears to violate subdivision (b) and directing [a] party to show cause, why it has not violated subdivision (b)." Fed. R. Civ. P.11(c) (1) (B) .9 Under Rule 11(c) (2) Henson's violations of any of the paragraphs of Rule 11(b) could, on the Court's initiative, be remedied through the imposition of attorney's fees payable to RTC,'0 of a penalty to be paid into the Court, or through "directives of a nonmonetary nature." Under these circumstances, nonmonetary directives should include an order "restricting [Henson's right to file any further civil actions or documents without this court's specific-. prior approval or unless represented by a licensed attorney." Schweitzer v. Maxwell, 1994 WL 780699, *2 (D. Mont. 1994). Such an order is clearly called for in this case and is proper against litigants whose abuse of this system will not be quelled in any other fashion. See, e.g., Weissman v. Quail Lodge i"c., 179 F.3d 1194,1197 (9th Cir. 1999) (approving curtailing vexatious litigation through restrictive pre-filing orders); Villar v. Crowley Maritime Corp., 990 F.2d 1489,1499 (5th Cir. 1993) (barring afl future
---------------
Footnotes 8 The word "frivolous" denotes a filing "that [is] both baseless and made without a reasonable and competent inquiry." Buster V. Oreisen, 104 F.3d 1186,1190 (9th Cir. 1997) (internal quotation omitted). The standard applied when determining whether or not a filing is frivolous is an "objective" one. In The Keegan Management Co., 78 F.3d 431, 434 (9th Cir. 1996) (internal quotation omitted). Under this standard, Henson's Rule 60(b) motion is plainly frivolous. See also Townsend',. Holman Consuhing Corp., 929 F.2d 1358,1362 (9th Cir. 1991) (noting that "[e]ither the improper purpose or frivolousness ground is sufficient to sustain a sanction"). 9 On account of time constraints under the briefing schedule, RTC is unable to meet the 21- day safe-harbor provision of Rule 11(c) (1) (A). Therefore, RTC urges that the Court should impose sanctions on its own initiative. 10 Rule 11(c) (2) (A) states that "[m]onetary sanctions may not be awarded against a represented party for a violation of subdivision (b) (2)"; this clause, however, does not apply to Henson, who is proceeding pro se. 1
---------------- litigation based on the same facts as within power of federal courts "to enjoin plaintiffs who abuse the court system and harass their opponents"), cert. denied, 510 U.S. 1044 (1994), abrogated on other grounds by Marathon Oil Co. v. Pedergas, 145 F.3d 211 (5th Cir. 1995); DeLong v. Hennessy, 912 I'.2d I 144, 1147 (9th Cir. 1990) (recognizing strong precedent establishing the inherent power of federal courts to regulate the activities of abusive litigants.. ., [including] enjoining litigants with abusive and lengthy histories [as] one such form of restriction that the district court may take."); In re Martin..Trigona, 737 F.2d 1254,1261-63 (2d Cir. 1984) ("United States Courts are not powerless to protect the public, including litigants... from the depredations of those... who abuse the process of the Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive ... proceedings.") (citations and internal quotes omitted). The Court is well aware of Henson's open admissions that he finds litigation against RTC to be screamingly funny," "entertainment," and "a great game," and that his purpose is to impose maximum litigation costs upon RTC. Henson continues to abuse the judicial process in pursuit of this improper purpose with this frivolous Rule 60(b) motion. He should not be permitted to do so in the future. Indeed, in state court proceedings against RTC, Henson's occasional attorney Graham Berry has been declared a "vexatious litigant" subject to pre-filing restrictions. See Order Finding Graham E Berry To Be a Vexatious Litigant, Sup. Ct. Cal. No. BC 184355 (August 20, 1999). Sanctions should also be imposed under 28 U.S.C. SS 1927, which provides that:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.