Date: Mon, 25 Oct 1999 15:27:50 +0200 (CEST)
Message-ID: <199910251327.PAA01299@sofuku.monster.org>
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA GENERAL CIVIL DIVISION ESTATE OF LISA McPHERSON, by and through the Personal Representative, DELL LIEBREICH, Plaintiff, V. CASE NO.: 97-01235
DIVISION: "H" CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION,
JANIS JOHNSON, ALAIN KARTUZINSKI;
and DAVID HOUGHTON, Defendants. DEFENDANT'S MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD NEW PARTIES INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff has filed a motion for leave to amend and to add new parties which is a direct breach of a contractual stipulation executed by plaintiff and her counsel nearly two years ago. Pursuant to that agreement, to which plaintiff amazingly does not even refer in her moving papers, plaintiff agreed not to attempt to add to this litigation the very parties whom she now seeks leave to add as defendants. (Exh. A, Stilo Aff., 2 and Exh. I thereto) That agreement is dispositive and controlling, and itself requires that the plaintiff's motion be denied for the reasons stated in Point I of the Argument section of this memorandum. The court need go no further in deciding the instant motion. There are, in addition, other important and significant jurisprudential considerations which compel denial of the instant motion. The motion, and its supporting papers, are the latest and most dramatic evidence that this case is no longer, if it ever was, about providing some degree of reasonable compensation to the family of Lisa McPherson for her alleged wrongful death. Indeed, Ms. McPherson's mother died prior to the institution of the lawsuit, and this case has been pursued nominally by Ms. McPherson's more distant relatives who never maintained any meaningful relationship with her. The wrongful death statute was not intended to provide "windfalls to [such] distant relatives." Florida Law Review Commission, Recommendations and Report on Florida Wrongful Death Statute at 8 (December 1969). Nevertheless, this case has proceeded in the name of these distant relatives on the pretense that they controlled the litigation and personally sought compensation, windfall or not. That pretense can no longer be maintained. Rather, control over the instant litigation has been seized by a small, active and wealthy group of anti-Scientologists who are intent on using the litigation as a club to inflict grievous damage upon the Scientology religion and the churches and leaders associated with it. The group includes several former Scientology officials - including Jesse Prince and Stacy Young - who were removed from their positions by present church leadership precisely because they engaged in acts that were either unlawful or contrary to Scientology principles. (Exh. A in Support of Motion to Strike Affidavit of Jesse Prince, Weiland Aff. 9, 10; Exh. B in Support of Motion to Strike Affidavit of Jesse Prince,Rinder Aff., 11) Whether these former officials now seek vengeance, tribute, or both, they have been funded to an extraordinary degree - ie., hundreds of thousands of dollars - by Boston mega-millionaire Robert Minton, who has poured even greater resources into this case, and has promised to pour millions more. (Exh. B, Minton Posting, Dec. 1, 1998; Exh. T in Support of Motion to Strike Prince Aff., Minton posting dated October 17,1998) And it is by dint of Mr. Minton's influence that plaintiff s attorney, unburdened by any real client,/1 has focused his fire with increasing intensity on maligning the religion and its leadership with grossly irresponsible, false, and totally unsupportable charges of a violent nature -including the latest outrageous allegation that not only the current defendant, but the entire international church leadership, purposely murdered Lisa McPherson. The reasons for this massive, and massively funded, effort at character assassination through the litigation process is a question to which we shall turn momentarily. First, we summarize the clear legal and equitable grounds why the plaintiff s motion should be denied, grounds which are addressed more fully in the legal argument section of this memorandum: 1 . As already stated, the plaintiff stipulated and contracted in writing with FSO that plaintiff would not seek to add precisely these parties to the lawsuit. That stipulation, in essence a partial settlement delimiting the scope of this case, although not previously filed with the Court, is fully and properly judicially enforceable. Indeed, the court should not use its process to further plaintiff s attempt to breach her stipulation and contractual obligations. /1 Plaintiff has acknowledged that she knows little or nothing about the course or conduct of the litigation, but has left the matter entirely to the discretion of her attorney, whose generous fees and expenses are paid by Minton. (Exh. C., Liebreich Dep. Tr., pp. 169-171, 175-1,76, 210-211.) Indeed, plaintiff apparently has little or no remaining financial interest in the case; Minton has testified that he induced her to agree to donate any potential recovery from this case to an antiScientology organization, which Minton presumably would control. (Exh. D, Minton Dep. Tr., pp. 64-66) As Minton further testified, he views his support of this lawsuit as an investment upon which he expects a return. (M., Minton Dep. Tr., pp. 46-47) 2. Amendment to add new parties is grossly untimely, will add years to the litigation of the case, and will greatly prejudice FSO because of the significant increase in the costs and burdens of litigation. 3. Plaintiff's purported factual basis for adding new parties - the declaration of Jesse Prince - demonstrates that plaintiff in fact has no bona fide good faith factual basis for her proposed amendments. Prince was not even a church member at the time of the events inquestion, and had been removed from any position of responsibility for ecclesiastical reasons as long ago as 1987. (Exh. A to Motion to Strike Prince Aff., Weiland Aff., 110; Exh. B to Motion to Strike Prince Aff., Rinder Aff., 19) He has no evidence to present to support his charges. His declaration consists of nothing more than rank speculation of the worst kind, spurred on by his ideological motive and the lucre of Minton. As a defrocked Scientology minister (Exh. A to Motion to Strike Prince Aff , Weiland Aff., I 10; Exh. B to Motion to Strike Prince Aff., Rinder Aff., 111), he certainly is in no position to give "expert" testimony on anything concerning the Scientology religion, let alone his "opinion" on what specific communications and actions others might have taken eight years after he was removed from any position of ecclesiastical responsibility precisely because he undertook actions that were contrary to religious policy and scripture. Moreover, his speculation is utterly without evidentiary or factual support. To permit amendment on the basis of Prince's facially incompetent, speculative, inadmissible and demonstrably false declaration would further no legitimate litigation interest, would permit plaintiffs attorneys and financiers to use the litigation for an improper and abusive purpose, would impose massive new litigation costs and delays, and ultimately would be futile. 4. Amendment additionally would be futile because the proposed complaint against the new parties clearly would be barred by the two-year statute of limitations applicable to wrongful death actions. Plaintiff alleges that the proposed new parties received reports of Ms. McPherson's purportedly deteriorating condition and issued orders to let her die. These are allegations of wrongful death, pure and simple. They are barred by the statute of limitations, and any proposed amendment to add new parties cannot relate back to the original filing of the complaint Thus, amendment at this late date would be futile. These powerful and dispositive grounds in fact demonstrate that the purpose of plaintiff s effort to add parties - in direct contravention of plaintiff s prior written stipulation - cannot be based upon any reasonable belief on the part of counsel that plaintiff ultimately can obtain a judgment against the new parties. Rather, as we already have suggested, plaintiff s I apparent goal is to burden the religion's international leadership with intrusive and ultimately irrelevant depositions, discovery and motion practice, and, more importantly, to use the litigation to defame the Church and its leadership with the most highly inflammatory charges, guaranteed to garner lead headlines and a prominent place on the evening news. The attempt to lynch the reputation of the religion and its leadership arises from the fact that, to the apparent horror of Mr. Minton and his group of anti-Scientology associates, the religion of Scientology generally and Church of Scientology FSO in particular have achieved growing success in putting to rest past public fears and misconceptions about Scientology. Thus, for example, Scientology churches are now recognized as legitimate tax exempt churches not only by the Internal Revenue Service but by state and local jurisdictions, including Florida. (Exhs. E-H; Exh. P, Florida Department of Revenue Certificate of Exemption) The United States State and Justice Departments have acted to protect the religious free exercise rights of Scientologists in foreign countries, including Germany and Sweden. (Exhs. I-J, photographs of Congressional hearing on Religious Intolerance in Europe Today; Exh. Q, 1997 State Department Report re: Germany, pp. 5-6; Exh. R, Excerpt from 1999 US Trade Representative Report re: Sweden) National and even local media have begun to treat Scientology and Scientology leaders with growing respect and acceptance. (Exhs. M and L) And, nationally and locally, government and civic leaders have met with officials of several churches of Scientology on a friendly and cooperative basis to help plan future actions and developments, recognizing that the church is now a permanent fixture of society and part of the community, with a positive and productive role to play. (Exh. L, local media; Exh. 0, Story Aff. at 118-20) That a central public role in these developments has been played by David Miscavige, the Chairman of The Religious Technology Center, can be no secret. The press has prominently presented favorable interviews of Mr. Miscavige, and has reported his role in positive meetings with national and local government and civic officials. (Exhs. K and L) He has achieved a reputation for honesty and credibility that directly contradicts the dark and negative picture of Scientology that anti-Scientology ideologues such as Minton seek to portray. Hence it has become necessary for such ideologues to attempt to destroy the credibility and reputation of the religion by attacking Mr. Miscavige in the vilest of terms. Mr. Minton and his paid witness, Mr. Prince, have been moving forces behind this effort. Lest the Court think that these comments are themselves mere hyperbole or speculation, we have submitted documentation showing that both Prince and, even more so, Minton, have made a point of attacking Mr. Miscavige, even to the extent of publicly stating their goal is to single him out for attack and opprobrium. Thus, when Prince made his videotaped obscene threats to Mr. Miscavige nearly one year ago, which the Court already has observed, he openly threatened that Mr. Miscavige would be his target. (Exh. S, Videotape Transcript Excerpt, November 30, 1998.) This motion and the proposed fifth amended complaint are apparently what Prince had in mind when he stated, "Tell David I'm coming . . ." Minton's public comments are even more explicit. He has stated "I'm going to be in $cientologys' [sic] face from now on...," and referred to himself as "Scientology public enemy number one." (Exh. T, Minton Posting, March 12, 1996; Exh. U, Minton Posting, July 22, 1999.) He has paid others to travel from outside the State to Clearwater to engage in anti-Scientology picketing at FSO's facilities. (Exh. V, Extract from Internet Relay Chat session) He has called for hanging Mr. Miscavige in effigy, eliciting responses from others to forget the effigy and do it for real. (Exh. W, Postings by Minton, "barb" and Garry Scarff.) He has posted Mr. Miscavige's picture on the Internet, superimposed on a target and called for putting Mr. Miscavige's "head on a pike." (Exh. X, Minton Posting.) Minton paid hundreds of thousands of dollars to support the litigation claims of another former Scientologist, Larry Wollersheim, that Mr. Miscavige murdered L. Ron Hubbard and his mother-in-law. After Wollersheim made these outrageous charges, Minton gloated, "I thought that Mr. Wollersheim could use the money to nail the cults [sic] ass to the floor. Guess, what? I was right!" (Exh. Y, Minton Posting, November 13, 1997.) (The courts gave these allegations the back-of-the-hand they deserved.) Minton even telephoned Mr. Miscavige's mother, and posted her telephone number on the Internet so that others could harass her, stating, nobody is "off limits" from this point forward, "[n]ot his mother, his father, his wife, him 1/4." (Exh. Z, Minton Posting, July 21, 1999.) The point of this discussion, of course, is not that the Court should do anything about these public actions by Prince and Minton, or that the Court should take sides in this one sided dispute./2 Rather, the point is that the court should not permit its processes to be abused in a bad faith and unsupportable effort by plaintiff's counsel and his financial angel to achieve /2 The dispute is "one-sided" in that Mr. Miscavige has not joined in the fray. collateral goals and purposes. For this motion to amend is, indeed, nothing less than an unmitigated abuse of process. Plaintiff s counsel knows that he has no evidence to support his outrageous allegations of murder against the defendant and the proposed new defendants. He knows that Prince's wild and incompetent speculations can never be admitted in a court of law. He knows that the Florida State Attorney, which investigated Ms. McPherson's death for two years and brought lesser criminal charges against FSO, made no allegation of intentional homicide or intent to "let Ms. McPherson die" against any party, let alone against the churches and individuals who had nothing to do with the, unfortunate events of 1995, but whom plaintiff nevertheless seeks to drag into this case. Nevertheless, plaintiff s attorney brought his motion, informed the press of the charges, and even brought Mr. Prince to the last court hearing, leading to the circus like media coverage of that hearing, in which the lead story on the local television newscasts was that Mr. Miscavige had been accused of causing Ms. McPherson's death. (Exh. AA, Channel 8 News clip, September 13, 1999.) That is what Mr. Minton and his paid co-conspirators, including plaintiffs counsel, hope to achieve by this motion and, if it were to be granted, by the subsequent litigation of this case. That is why, in addition to the dispositive legal grounds to which we now return, this motion should be denied. ARGUMENT I. PLAINTIFF IS PRECLUDED BY A CONTRACTUAL AGREEMENT FROM ADDING THE PROPOSED NEW PARTY DEFENDANTS TO THE COMPLAINT In November 1997, before the strategy was developed to use this case to pursue broader collateral purposes, plaintiff entered into a binding contractual agreement (the "Agreement") with the Church of Scientology FSO in which plaintiff stipulated that she would not seek to include as defendants in this lawsuit any of the churches and individuals whom she now seeks to add through her proposed amendment. The stipulation may fairly be characterized as a partial settlement agreement in which the parties agreed to delimit the scope of this litigation. Plaintiff undertook to limit the parties to this litigation. In return, FSO agreed to preserve certain of its assets until the conclusion of this case. This Agreement was signed by both Dell Liebreich, as personal representative of Lisa McPherson's estate, and by plaintiffs counsel, Ken Dandar. (A copy of the Agreement is attached as Exhibit I to the Affidavit of Glen Stilo, annexed hereto as Exhibit A.) The Church has honored its obligations under the Agreement. (Exh. A, Stilo Aff., 13.) In relevant part the Agreement provides: 2. Liebreich shall not amend her complaint to add, nor otherwise seek to include, as party defendants in the state court action, any of the following separate, independent corporations: ... Religious Technology Center, Church of Scientology International ... and any officer, director, agent or employee of the above-referenced entities. In direct contravention of this proviso of the Agreement, plaintiff is now "seek[ing] to include" as party defendants the Religious Technology Center ("RTC'), Church of Scientology International ("CSI"), David Miscavige and Marty Rathbun, both of whom are directors and employees of RTC, and Ray Mithoff who is an employee of CSI. This Court should summarily deny the requested amendment to add these parties as defendants and enforce the parties' stipulation./3 /3 A stipulation concerning the proceedings in a pending cause is an obligation unlike ordinary contracts between parties not in court, since no consideration is necessary to its validity, no mutuality is required." Esch v. Forster, 123 Fla. 905, 912, 168 So.229, 231 (Fla. 1936)(citations omitted). In any event, there was more than sufficient consideration in that FSO agreed to maintain 9 "It is well settled in this state that '[a] stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court." Johnson v. Johnson, 663 So.2d 663, 664-665 (Fla. 2d DCA 1995) (citing Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla. 1971)). "These principles are in recognition of the value which stipulations bring to the legal system in terms of simplifying issues, limiting or shortening litigation, saving costs to the parties, and preserving judicial economy and resources." Id. (citing Dunscombe v. Smith, 139 Fla. 497, 190 So. 796 (Fla. 1939). In Dunscombe, the Florida Supreme Court commented on the purpose that such stipulations serve in the litigation process: This Court is committed to the rule that it not only approves but favors stipulations and agreements on the part of litigants and counsel designed to simplify, shorten or settle litigation and save costs to the parties, and the time of the Court, and when such stipulations or agreements are entered into between parties litigant or their counsel, the same should be enforced by the court unless good cause is shown to the contrary. Dunscombe v. Smith, 139 Fla. 497, 504, 190 So. 796, 799 (Fla. 1939) (holding that the plaintiff was precluded from prosecuting an amended complaint against additional defendants by a stipulation reached with the original defendant). It does not matter that the Agreement here did not wholly settle the case, or that It was not submitted to the court. This case is still pending before this Court, therefore, this agreement is fully enforceable by this Court: Even when not incorporated in a court order, a stipulation in writing subscribed by the parties and their counsel, which is designed to obviate or delimit litigation, can and should be enforced by the judge before whom the case is pending. and not alienate its assets. Naughtin v. Jones, 680 So.2d 573, 575 (Fla. 1stDCA 1996). "Accordingly, to foster the legal policy of encouraging stipulations to minimize litigation and expedite resolutions of disputes the law provides that '[s]uch stipulations should be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy."' Johnson, 663 So.2d at 665 (citing Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 182 (Fla. 1994)); see also EGYB, Inc. v. First Union Nat 7 Bank, 630 So.2d 1216, 1217 (Fla. 5' DCA 1994) ("[u]nless grounds for recission. or withdrawal are shown, the trial court is bound to strictly enforce the agreement between the parties."); Spitzer v. Bartlett Bros., 437 So.2d 758, 760 (Fla. I" DCA 1983) (stipulations "are normally binding on the deputy, and a finding by the deputy that is at variance with a stipulation will ordinarily be overturned." (Citations omitted)). Moreover, "[I]n order to obtain relief against stipulations, the regular course is not to ignore or attempt to evade it, [as plaintiff has done] but to make a seasonable and affirmative application by formal motion to the court, on notice and supported by affidavit for its withdrawal or revocation." Dunscombe 139 Fla. at 504, 190 So. at 799. Even when an appropriate application is made, only where the contract is invalid for reasons such as illegality, fraud, duress, undue influence or mistake will such an agreement not be enforced. Lotspeich Co. v. Neogard Corp., 416 So.2d 1163, 1164-65 (Fla.3d DCA 1982). Plaintiff does not and cannot in good faith allege any such facts. Accordingly, the Court should enforce the Agreement by denying the motion to amend, at least to the extent that it seeks to add new parties. II. AMENDMENT TO ADD NEW PARTIES SHOULD BE DENIED AS UNTIMELY AND PREJUDICIAL TO DEFENDANT On or about February 19, 1997, plaintiff served her initial complaint in this action, alleging a single cause for wrongful death against a single defendant, the Church of Scientology Flag Service Organization (the "Church'). The Church timely answered the complaint./4 Over the ensuing two and one-half years, this Court has allowed plaintiff to amend her complaint on five separate occasions, ultimately adding three individual defendants and six further causes of action./5 Most recently, at a hearing on July 22, 1999 upon the Church's motion to dismiss the Fourth Amended Complaint, this Court again permitted plaintiff to replead certain causes. However, at the hearing, plaintiff's counsel represented that he was contemplating, "Slim[ming] this [complaint] down drastically," and the Court warned that "[i]f you slim it down later, you may be faced with attorneys' fees." (Exh. CC, -1/22/99 at 59.)/6 Moreover, plaintiff s counsel agreed to strike from his complaint the only paragraph that made mention of David Miscavige, /4 The representations to this Court by plaintiffs counsel that "no responsive pleading has been filed to any of these complaints" is therefore false. (Compare excerpts from plaintiff s motion to amend and transcript of the September 13, 1999 hearing with Answer to Complaint; annexed hereto as Exh. BB.) /5 Ruling on the Church's various motions to dismiss, this Court has sustained the dismissal without leave to replead one cause of action, but has otherwise repeatedly permitted plaintiff to replead defective causes of action. /6 In response, Mr. Dandar stated: "So I may slim [the complaint] down sooner," and this Court responded: "Well, that's what I suggested." [Id.] the ecclesiastical leader of Scientology. (Id. at 88_90.)/7 Instead of "slimming down' 'his complaint as promised to this Court, and eliminating reference to Mr. Miscavige as agreed, plaintiff s counsel now seeks to file a fifth amended complaint that would add Mr. Miscavige, two other individuals and two corporations as new defendants, and which makes reckless and speculative charges that would vastly expand this litigation, and delay its resolution for years. Plaintiff has been given ample latitude in amending her complaint. The liberality of the courts toward amendments rightfully is more restricted the more often the process of amendment is repeated. This is especially so where late amendments seek to add new parties or new theories of liability, necessitating new and complex areas of discovery and new and difficult legal questions. In such circumstances, the prejudice to existing defendants in having to relitigate the case basically from square one is sufficient unto itself to deny amendment. There is no justification here for a liberal application of the rule in the face of the dispositive legal impediments the plaintiff would encounter here to her effort to add new defendants. In Noble v. Martin Memorial Hosp. Assn, Inc., 710 Soared 567 (Fla. 4th DCA 1997), the trial court denied the plaintiffs motion to amend his third amended complaint to add injunctive relief in a case that had been pending almost five years. The ruling was upheld, and the appellate court noted that "There comes a point in litigation where each party is entitled to some finality. The rule of liberality 'gradually diminishes as the case progresses to trial."' Id. at 568 (citing Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977)). In Gladstone v. Smith, 24 F.L.W. D866 (Fla. 4th DCA Mar. 31, 1999), the appellate court upheld dismissal of even a pro se complaint, citing Kohn v. City of Miami, 611 So.2d 538, 539 (Fla. 3rd DCA 1992) for the rule /7 In response to the Court's inquiry as to what he "needed" from this paragraph in the complaint, plaintiffs counsel stated: "I can strike it. I can strike it. That's fine." [Id.] that "as an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his discretion in dismissing with prejudice." Gladstone at D866. The court, again relying on Kohn, noted that "[w]hile there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion." Id. The Kohn court observed that "There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims." Kohn at 539 (citing Feigen v. Hospital Staffing Servs., Inc., 569 So.2d 941 (Fla. 4th DCA 1990)). In Kohn the plaintiff had been given four opportunities to state a claim, in Feigen, seven. That point has been reached in this case. The plaintiff is not only attempting for the sixth time to state claims, but now seeks to bring new parties into the case as defendants, even though the incident that is at the center of the claim took place almost four years ago and the case itself has been pending for over two years, and is currently set for trial on a five-week trial docket for next June (although the pleadings have not settled and are not "at issue" on all counts or against all defendants). See also, Schraw v. Est. ofHester, 693 So.2d 721 (Fla. 5th DCA 1997) (Upholding denial of a motion to amend complaint after dismissal where attempt would be futile); and Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3rd DCA 1981) (upholding the trial court's refusal to allow amendment of the plaintiff s fifth amended complaint, noting that in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits ... [citation omitted], 'there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached. . citing Tuerner v. Trade- Inc., 252 So.2d 383 (Fla. 4th DCA 1971), where the court adopted a baseball analogy, where "three strikes are out"). The plaintiff has been swinging away now through the original complaint and four subsequent amended complaints. The time is at hand when she should be prevented from further vexatious efforts to harass entities and persons she and her attorney have previously agreed not to add as defendants. Even more importantly, the prejudice to FSO of permitting the addition of new parties and new theories of liability, based upon the mere speculation of an incompetent witness, would be immense. The events that give rise to this claim took place nearly four years ago. What the Plaintiff now proposes is nothing less than an entirely new case, with an attempt to name new parties, state new legal claims, and develop new evidence resulting in increased discovery and new legal issues. For example, complex legal issues would be raised, on the very face of the complaint, concerning the existence and meaning of church religious policies and scriptures, and of the court's power (or lack of same) under the First Amendment to conduct a judicial inquiry into the meaning of such scripture. Plaintiff even appears to suggest that the court should determine whether and to what extent church officials departed from doctrine, an inquiry barred by the First Amendment. Presbyterian Church in the United States v. Mary Elizabeth Hull Memorial Presbyterian Church, 393 U.S. 440 (1969). The court would also be called upon to decide to what extent, if any, to permit inquiry into and make determinations based upon questions of ecclesiastical hierarchy and communications. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713(1976). In addition to these new and difficult legal issues, the factual scope of the case would increase exponentially. Discovery by the parties in this suit has been underway for some time and is still taking place. As the court is well aware, discovery has been complex and often contentious with many discovery issues having been addressed by the court. Witnesses already deposed would have to be redeposed. New witnesses, many of them out-of-state, likely would be subpoenaed for deposition. Significant resources of the Defendants would be expended on truly irrelevant discovery - precisely the expense FSO sought to avoid with the Agreement. Plaintiff clearly contemplates a wholesale inquest into the entire Scientology religion, itself raising serious questions of unconstitutional entanglement by the court into religious matters. Finally, it is highly likely that if plaintiff is permitted to amend to add new parties, the new parties and perhaps the existing defendant would bring counterclaims based upon the outrageous abuse of process manifested by the proposed fifth amended complaint. Those counterclaims themselves could bring in yet additional parties, such as Minton, Prince, and others. It cannot be supposed that the proposed new parties could ignore the invented lies and speculation that underlie the pending motion, and the collateral purposes that plaintiff s attorney seeks to pursue. For these reasons, the court should not permit the plaintiff to amend to add the new parties. III. AMENDMENT TO ADD NEW PARTIES SHOULD BE DENIED AS FUTILE Leave to amend should be denied where amendment would be futile. The rule is applied in many contexts, and is upheld repeatedly when the amendment offers nothing to advance the cause, as would be the case here. For example, in Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982), the appellate court reversed a judgment establishing a mechanic's lien because the trial court had allowed a contractor to amend his complaint when his noncompliance with the statutory notice provision in the time allowed by law rendered the amendment futile. See, also, Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3rd DCA 1975), affirming the trial court's refusal to grant leave to amend when it was clear the notice requirement had not been met. Here, amendment to add the proposed new parties ultimately would be futile for two significant reasons. First, as already shown, plaintiff has no legitimate good faith basis to make his claims against the proposed new defendants. Plaintiff's reliance on the raw speculation of the bought and paid for Jesse Prince is the very definition of futility. Prince hardly can qualify as an expert on a religion when he was removed from any position of responsibility in that religion over twelve years ago (and eight years before the events at issue in this case) precisely because he misapplied and attempted to alter church doctrine and scripture. Clearly, Prince's understanding of what acts are proper within the Scientology religion and the Church's understanding have been at odds for many years prior to the events of this case./8 Equally dispositive, Prince's "expert" opinion consists of nothing more than his musings about communications and decisions that he conjectures would have been made by others. While Prince's "evidence" certainly is of the type and quality used to convict witches in Salem, Massachusetts in 1692 (see A. Miller, The Crucible (1952)), under no conceivable circumstances could Prince's incompetent speculations provide a basis for a modem judicial determination that the proposed new defendants had anything to do with the events of this case, let alone that they ordered Ms. McPherson's murder./9 See, Campbell v. Salman, 384 So.2d 1331, 1333 (Fla. 3rd DCA 1980) (Affidavit based on information and belief rather than personal knowledge was not admissible into evidence and should not have been considered by trial court); CSX Transportation Inc. v. Pasco County, 660 So.2d 757 (Fla. 2d DCA 1995) (Affidavits which merely cited general familiarity, but provided no basis for ultimate conclusions and were not based on personal knowledge, were not considered by the court on issues pending before the court for summary judgment). See FSO's Motion to Strike Declaration of Jesse Prince, and Memorandum in Support thereof. /8 Indeed, the First Amendment prohibits the Court from accepting Prince's description of the Scientology religion and rejecting the Church's: "It is for religious bodies themselves, rather than the courts ... to define, by their teachings and activities, what their religion is." Holy Spirit Ass'n v. Tax Comm., 450 N.Y.S.2d 292, 298 (1982). /9 In addition to all the other reasons Prince's declaration cannot be credited, Prince's rank speculation that church officials would have chosen to permit McPherson to die because of fear of a purported public relations "flap" is absurd on its face. As events have shown, and as would have been readily foreseeable, the death itself, whatever its cause, has created the most one-sided negative publicity imaginable. Plaintiff has no other evidence to support his outrageous claims. Especially when considered in light of the other grounds upon which the proposed amendment should be denied, including the delay, the prejudice to FSO, and the stipulation of partial settlement, the futility of the amendment demands that the motion be denied. The second reason amendment would be futile is that the claims against the new parties are clearly barred by the two year statute of limitations applicable to wrongful death actions. Fl. Stat. § 95.11 (4)(d). The entire basis for the claims plaintiff wishes to assert against the new parties is that, according to Prince, the new parties ordered the current defendant, FSO, to "let" Ms. McPherson die. This claim, outrageous as it is, sounds exclusively in wrongful death, and thus is barred by the statute. Nor would amendment, if permitted, "relate back" to the original filing of the complaint. Pursuant to Florida law, generally, the addition of a new party to an action will not relate back to the original complaint. See Johnson v. Taylor Rental Center, Inc., 458 So.2d 845, 846 (Fla. 2nd DCA 1984) ("[flhe rule which permits the relation back of amended pleadings" to correct misnomers "does not apply where an entirely new party is added"); Troso v. Florida Ins. Guar. Ass'n, 538 So.2d 103 (Fla. 4th DCA 1989); Lindsey v. H.H. Raulerson Jr. Mem 7 Hosp., 505 So.2d 577 (Fla. 4th DCA 1987) (amended complaint in medical malpractice action which did not merely correct misnomer or misdescription of party but instead added another physician as a totally separate party did not relate back to date of initial complaint); Louis v. South BrowardHosp. Dist., 353 So.2d 562 (Fla. 4th DCA 1977) (relation back is inapplicable where effect is to bring in new parties); Frankowitz v. Propst, 489 So.2d 51 (Fla. 4th DCA 1986)(because physician did not share "identity of interest" with his colleagues and professional association, amended complaint, which added him as a party defendant in medical malpractice action, did not relate back to original complaint); Michelin Reifenwerke, A.G. v. Roose, 462 So.2d 54 (Fla. 4th DCA 1984) (company sued sufficiently independent of company sought to be added so as to preclude relation back); Garrido v. Markus, Winter and Spitale Law Firm, 358 So.2d 577 (Fla. 3d DCA 1978) (relation back applies only where there has been a misnomer); In this case there was no misnomer,/10 rather the Plaintiff is attempting to add totally separate parties. Here, these potential defendants were identified and intentionally not named in the initial complaint by any description. The relation back rule, therefore, should not be applied in this case. The statute of limitations defense is apparent from the motion the plaintiff has filed and from her Amended complaint. Consequent , the court is warranted in denying her motion now, since the claim is time-barred and futile for that reason alone. In Scott v. Hertz Corp., 722 Sold 231 (Fla. 2nd DCA 1998) the trial court denied a motion for leave to amend to state a claim for negligent entrustment for having rented a car to a driver under 25. The appellate court affirmed the ruling, holding that the court did not abuse its discretion because the amendment did not state a cause of action, and would thus have been futile. The same rule would apply to an attempt to add parties against whom a claim would be time-barred. In Johnson v. Taylor Rental Center, Inc., 458 So.2d 845 (Fla. 2nd DCA 1984), the plaintiffs in a negligence action attempted to add a franchisee of the' defendant franchi sor as a party defendant, after the statute of limitations had run. The lower court dismissed, finding that the amendment /10 The court's statements in Garrido are, equally applicable here: "Black's Law Dictionary, as: revised fourth edition defines "misnomer" ""mistake in name; giving an incorrect name to person in accusation, indictment, pleading; deed or other instrument." We are convinced that no "mistake" occurred, or rather, the only mistake occurring was that ofjudgment. To permit, a substitution at this point would be tantamount to introducing "new parties" into the lawsuit and, as has been cited above, such is not the nature of the "relation back" doctrine." Garrido, 358 So.2d at 582-583. came too late and was not just an effort to correct a misnomer, but to add an entirely new party, thus did not relate back and was time-barred. Similarly, see, e.g., Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1978); Garrido v. Markus, Winter & Spitale Law Firm, 3 58 So.2d 577 (Fla. 3rd DCA 1978); and West Volusia Hospital Authority v. Jones, 668 So.2d 635 (Fla. 5th DCA 1996) (all finding that amendments to complaints to add or substitute parties that are filed under the statute of limitation has run on a cause of action are barred). CONCLUSION Wherefore, the Defendants respectfully request that the Plaintiff's Motion to Amend to Add Additional Parties be denied. Respectfully submitted, Of Counsel: ERIC M. LIEBERMAN MORRIS WEINBERG, JR/ Rabinowitz, Boudin, Standard, Florida Bat o. 0486401 Krinsky & Lieberman, P.C. LEE FUGATE 740 Broadway, 5th Floor Florida Bar No. 0 170928 New York, NY 10003 Zuckerman, Spaeder, Taylor & Evans, LLP Ph: (212) 254-1111 401 E. Jackson Street, Suite 2525 Fx: (212) 674-4614 Tampa, FL 33602 Ph: (813) 22 1 -1010 Fx: (813) 223-7961 MICHAEL LEE HERTZBERG 740 Broadway, 5th Floor New York, NY 10003 Ph: (212) 982-9870 Fx: (212) 674-4614 Counsel for Defendant Church ofScientology Flag Service Organization 20