Case 2:14-cv-00283-GMN-NJK Document 9 Filed 04/21/14 Page 1 of 8

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Nevada Bar No. 006858 E-Mail: Brent.Vogel@lewisbrisbois.com ALAYNE M. OPIE Nevada Bar No. 012623 E-Mail: Alayne.Opie@lewisbrisbois.com LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 702.893.3383 FAX: 702.893.3789 Attorneys for Narconon Fresh Start dba Rainbow Canyon Retreat UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

CATHY TARR, a Virginia Citizen; and 12 MICHAEL TARR, a Florida Citizen,

CASE NO. 2:14-cv-00283-GMN-NJK DEFENDANTS REPLY IN SUPPORT OF ITS MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE OR FOR MORE DEFINITE STATEMENT *ORAL ARGUMENT REQUESTED*

13 14
vs.

Plaintiffs,

15 NARCONON FRESH START d/b/a 17 18 19

Defendants.

RAINBOW CANYON RETREAT; and DOES 16 1-100, ROE Corporations I-X, inclusive,

Defendant, NARCONON FRESH START dba RAINBOW CANYON RETREAT

20 (Narconon), by and through its counsel Lewis Brisbois Bisgaard & Smith LLP, hereby submits its 21 Reply In Support Of Its Motion to Dismiss Complaint, Or In The Alternative, To Strike, Or For A 22 More Definite Statement. Doc 6. This Reply is based upon the papers and pleadings on file, the 23 Memorandum of Points and Authorities submitted herewith and any argument allowed at the time of 24 any hearing on this matter. 25 26 27 28
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ATTORNEYS AT LAW

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DATED this 21st day of April, 2014 LEWIS BRISBOIS BISGAARD & SMITH
LLP

By

/s/ Alayne Opie S. BRENT VOGEL Nevada Bar No. 006858 ALAYNE M. OPIE Nevada Bar No. 012623 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs Opposition does not address the issues Narconon raised regarding the defects of

12 the Complaint. Instead, Plaintiffs used their Opposition to reiterate what is contained within the 13 Complaint. The Complaint is argumentative, prolix, largely irrelevant, and is not simple, concise, and 14 direct as required by Federal Rule of Civil Procedure (Rule) 8(d). Dismissal of Plaintiffs 15 Complaint pursuant to Rule 41(b) for failure to adhere to the Rules is proper. 16 17
A. PLAINTIFFS COMPLAINT IS LARGELY IRRELEVANT In support of Plaintiffs Opposition, they largely rely on two cases, Hearns v. San Bernadino

18 Police Department 530 F.3d 1124, 1130 (9th Cir. 2008) and Hinchey v. Horne, infra.. Based on these two 19 cases they claim there is no question Plaintiffs Complaint satisfied Rule 8. Doc. 8 at 10:11. These 20 cases are easily distinguished from the case at hand and actually support Narconons position that 21 Plaintiffs Complaint should be dismissed. 22
In Hearns, the Ninth Circuit held the district court abused its discretion in dismissing the

23 plaintiffs 68-page complaint with prejudice solely because of its length. Defendants in the Hearn 24 matter did not identify particular allegations as immaterial or unnecessary, [t]hey simply object[ed] 25 that the complaint provide[d] too much factual detail. Id. The Hearn court explained that the 26 complaint at issue was not replete with redundancy and largely irrelevant. Id. at 1131; citing McHenry 27 v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). It set out more factual detail than necessary, but the 28 overview was relevant to Plaintiffs causes of action Id. (emphasis added). Nor was it
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1 confusing and conclusory. Id.; citing Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 2 1981). That is not the case with Plaintiffs Complaint herein. Narconons Motion does not argue 3 simply that the Complaint is too long. Rather, Narconon spelled out in detail the many defects in the 4 Complaint and explained why most of the allegations are irrelevant and violate the procedural rules. 5
In Hinchley, an unreported opinion, the United States District Court, District of Arizona

6 denied defendants motion to strike plaintiffs complaint. Hinchely v. Horne, 2013 WL 1664704 (D. 7 Ariz. Apr. 17, 2013). The Court reiterated the Ninth Circuits holding in Hearns, that verbosity or 8 length is not by itself a basis for dismissing a complaint based on Rule 8(a). Id. at *1; citing Hearns at 9 1131. (Emphasis added.) The Court found that the facts plead in plaintiffs complaint were relevant 10 to plaintiffs causes of action. Hinchey at *2. 11
In the case at bar, Narconon has pointed out that the Complaint is deficient for more reasons

12 than its excessive length. The Motion points out, inter alia, that Plaintiffs Complaint improperly 13 contains superfluous language intended to paint Narconon in a poor light to the Court, the general 14 public, and garner media attention. Doc. 6 at 3:13-15. Furthermore, is littered with hearsay, contains 15 information that fails to support any of Plaintiffs causes of action, is plagued with Plaintiffs opinions 16 and provides conclusory statements among other allegations that are so poorly worded that they do 17 not afford Narconon an opportunity to adequately respond. Doc. 6 at 5:20-23. Unlike the Hearn and 18 Hinkley complaints, the Tarrs Complaint is inundated with irrelevant information and should be 19 dismissed. 20
In fact, Plaintiffs admit that the Complaint contains irrelevant information. In Plaintiffs

21 Opposition they state, [t]o respond to this allegation, Narconon would only need to quickly reference 22 Book 6 of its course materials or counsel could just ask the client. (Of course, Narconon is not 23 required to respond as to the contents of Scientology: The Fundamentals of Thought.) 24 Doc. 8 at 6:25-7:3 (emphasis added). If Narconon is not required to respond to Plaintiffs 25 allegation, then it is improperly plead in Plaintiffs Complaint. It is de facto irrelevant and violates 26 Rule 8. 27
Furthermore, Plaintiffs concede that the Complaint contains superfluous information

LEWIS

28 regarding allegations about Narconons methods of inducing persons to enter into their program
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1 Id. at 7:24. Any allegations concerning students other than Michael Tarr are immaterial to Plaintiffs 2 claims of breach of contract, fraud, or negligence, and are improperly plead. 3
Plaintiffs arguments in the Opposition are contradictory. First, they admit that the Complaint

4 contains irrelevant information. Doc. 8 at 6:25-7:3, 7:24. Later, Plaintiffs contend that all of the 5 factual allegations in their Complaint are necessary and directly relevant. Doc. 8 at 11:9-10 6 (emphasis added). If Plaintiffs cannot determine what is or is not relevant then how can the Court or 7 Narconon? The Complaint violates the Rule 8 and should be dismissed. 8 10
B. PLAINTIFFS DO NOT OVERCOME THE MOTION BY PLEADING

9 FRAUD
The Ninth Circuit Court in Carrigan v. California State Legislature, 263 F.2d 560, 566 (9th Cir.),

11 cert. denied, 359 U.S. 980 (1959), held that a California district court did not abuse its discretion in 12 dismissing plaintiffs complaint. That complaint also alleged fraud and was dismissed for many of the 13 same reasons Narconon requests this Honorable Court to dismiss Plaintiffs Complaint. The district 14 court in Carrigan found that plaintiffs complaint violated Rule 8 because it contained her thoughts; 15 her worries; hundreds of hearsay conversationsself-serving statements; [and] statements made by 16 someone not a defendant among other violations of Rule 8. Carrigan at 564. The court explained 17 that when fraud is alleged, it must be particularized as Rule 9(b) requires, but it still must be as short, 18 plain, simple, concise, and direct, as is reasonable under the circumstances, and as Rule 8(a) and (e) 19 require. Id. at 564. Pleading fraud does not permit Plaintiffs to violate Rule 8 as they appear to 20 believe. Certainly Plaintiffs stating that Narconon has prominent members of the Church of 21 Scientology, such as Kristie Alley, John Travolta, and Tom Cruise is a superfluous and irrelevant 22 statement that violates Rule 8. Doc. 1 at 76. Please note, Plaintiffs failed to address Narconons 23 issue with this specific allegation in their Opposition. 24 26
C. PLAINTIFFS COMPLAINT READS LIKE A MAGAZINE STORY

25 INSTEAD OF A TRADITIONAL COMPLAINT AND MUST BE DISMISSED

Plaintiffs allegation that [t]he Complaint is well within the federal pleading standard of Fed.

27 R. Civ. P. 8 is contrary to the applicable law. See Doc. 8 at 1:23. Plaintiffs Complaint fails to comply

LEWIS

28 with Rule 8 which requires Plaintiffs to plead a short and plain statement of the claim showing that
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1 the pleader is entitled to relief and each allegation must be simple, concise, and direct. Fed. R. 2 Civ. P. 8(a)(2) and 8(d) (emphasis added). Furthermore, it reads like a magazine story and must be 3 dismissed. See, Jacobson v. Schwarzenegger, 226 F.R.D. 395, 397 (C.D. Cal. 2005); citing McHenry at 1176. 4
In Jacobson, the United States District Court, Central District of California, dismissed plaintiffs

5 complaint as it represented an egregious violation of the pleading rule that complaint be a short 6 and plain statement of claim for relief Id. at 397; Fed.R.Civ.P. 8(a) (emphasis added).
The

7 complaint consist[ed] of a rambling diatribe including historical narrative, legal argument, and 8 excerpts from newspaper articles, web sites and the Little Hoover Commission Report. The pleading 9 [was] replete with hyperbole and punctuated by references to . (event[s] having absolutely 10 nothing to do with [the] lawsuit). Id. The court compared the Jacobson complaint to the complaint in 11 McHenry v. Renne, which consisted of a rambling narrative containing immaterial background 12 information and storytelling or political griping, and held that like the McHenry complaint, the Jacobson 13 complaint read[] like a magazine story instead of a traditional complaint. Id. citing McHenry v. Renne, 14 84 F.3d 1172, 1176-77 (9th Cir. 1996) (internal quotations omitted). The court explained that a 15 lawsuit cannot proceed on the basis of this sort of pleading. Neither the court nor the defendants 16 should be compelled to cull through pages of rambling narrative, argument and needless digression to 17 discover the factual bases for the plaintiffs claims. Jacobson at 397. Plaintiffs complaint was 18 dismissed. 19
Here, Plaintiffs have also committed an egregious violation of Rule 8. Plaintiffs Opposition

20 does not adequately explain why the rambling diatribe contained within the Complaint is relevant or 21 how it complies with Rule 8. Plaintiffs ignore the entirety of the Complaint and cherry pick 22 paragraphs and state that they: 23 24 25 26 27
are basic factual allegations included simply to describe what happened between the parties set[] forth basic allegations about the program that Narconon put Michael through and how the program operated include[] allegations about Narconons sauna program that Michael went through

LEWIS

28 Doc. 8 at 6:13-14, 6:15-16; 7:10-11. Then Plaintiffs essentially reiterate certain allegations made in
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1 their Complaint: 2 3 4 5 6 7 Doc. 8 at 7:4-7; 7:11-2. Obviously Narconon and this Court have Plaintiffs Complaint. Simply 8 stating that Plaintiffs Complaint contains factual allegations and particularly identifying a few 9 allegations from it, does not explain why all of the other allegations are relevant. The overriding 10 conclusion to be made from Plaintiffs inability to explain the numerous superfluous and irrelevant 11 allegations is that they are improper. Thus, dismissal is proper. 12
Similar to the Jacobsonson and McHenry complaints, Plaintiffs Complaint was intended to read paragraph 24 provides, in relevant part, that [Training Routine] 3 from Book 1 of the Narconon program is used to teach students about the Cycle of Communication. The Cycle of Communication is a concept found early on in Scientology: The Fundamentals of Thought, the book Narconon credits as being the inspiration for its program. Plaintiffs allege that Narconons sauna is also a Scientology practice known as the Purification Rundown.

13 like a tabloid magazine story instead of a Rule 8 compliant Complaint. Like the Jacobsonson and 14 McHenry complaints it must be dismissed. Plaintiffs causes of action against Narconon are basic. 15 Plaintiffs claim breach of contract, fraud, and negligence. These causes of action could have been 16 properly pled. Instead, Plaintiff added paragraphs containing superfluous language intended to paint 17 Narconon in a poor light to the Court, the general public, and to garner media attention. This violates 18 Rule 8 and the Complaint should be dismissed. 19 20 21 22 23 24 25 26 27 28
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CONCLUSION Narconon respectfully requests that this Court grant its Motion to Dismiss Plaintiffs

3 Complaint. Alternatively, Narconon requests that this Court strike Plaintiffs Complaint in whole or 4 in part, or order Plaintiffs to provide a more definite statement in conformity with the Rules. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
4829-6789-0458.1 7 By /s/ Alayne Opie S. BRENT VOGEL Nevada Bar No. 006858 ALAYNE M. OPIE Nevada Bar No. 012623 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 DATED this 21st day of April, 2014 LEWIS BRISBOIS BISGAARD & SMITH
LLP

LEWIS

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ATTORNEYS AT LAW

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CERTIFICATE OF SERVICE Pursuant to FRCP 5(b), I certify that I am an employee of LEWIS BRISBOIS BISGAARD & SMITH LLP and that on this 8th day of April 2014, I did cause a true copy of the foregoing REPLY IN SUPPORT OF DEFENDANTS MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE OR FOR MORE DEFINITE STATEMENT to be served via the CM/ECF electronic system to all parties on the service list.

Ryan A. Hamilton 8 HAMILTON LAW 5125 S. Durango Dr., Ste. C 9 Las Vegas, NV 89113 Telephone: (702) 818-1818 Facsimile: (702) 974-1139 10 Email: ryan@hamiltonlawlasvegas.com

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4829-6789-0458.1 8 By: ___/s/ Alayne Opie An Employee of LEWIS BRISBOIS BISGAARD & SMITH LLP

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