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UNITED STATES DISTRIST COURT


MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LUIS A. GARCIA SAZ, and wife, MARIA


DEL ROCIO BURGOS GARCIA,
Plaintiffs,
Vs.

CASE NO. 8:13-CV-220-T27 TBM

CHURCH OF SCIENTOLOGY RELIGIOUS


TRUST; CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, INC.; CHURCH
OF SCIENTOLOGY FLAG SHIP SERVICE
ORGANIZATION, INC. d/b/a MAJESTIC
CRUISE LINES; IAS ADMINISTRATIONS, INC.;
U.S. IAS MEMBERS TRUST.
Defendants.
________________________________________/
DEFENDANTS RESPONSE TO PLAINTIFFS MOTION TO LIFT STAY
BECAUSE OF ALLEGED ARBITRATION WAIVER
Plaintiffs attempt to create the illusion that they have been stymied by Defendants in their
attempt to select an arbitrator -- a Scientologist in good standing. In reality, the Plaintiffs have
created the very delay of which they now complain. Plaintiffs real purpose is to re-litigate the
issues this Court already has decided.
Plaintiffs spent the first four months following this Courts March 13, 2015 arbitration
order seeking a new hearing and attempting to appeal a non-final order. Their motion for new
hearing was denied by this Court (See Doc. 198), and on July 30, 2015, their appeal was
dismissed, sua sponte, for lack of jurisdiction by the Eleventh Circuit. (See Doc. 205).
On August 12, 2015, five months after this Courts order compelling arbitration, the
Plaintiffs requested arbitration and designated their first potential arbitrator -- Tony DePhillips.

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Exhibit 1, Babbitt email dated August 12, 2015. Tony DePhillips is a well-known disaffected
former Scientologist.

An internet search reveals that he has been blogging or posting his

disaffection with Scientology since at least March, 2014. Moreover, Tony DePhillips was at the
time of the designation, and presumably still is, a client of Mr. Babbitt, the Garcias counsel,
who has asserted a Garcia-type claim on his behalf against the Church. Plaintiffs proposed
DePhillips for no purpose other than to evoke a response that he was not in good standing with
the Church.
In addition to designating an unqualified arbitrator, the Garcias otherwise failed to
comply with the arbitration procedure. The arbitration procedures are set forth in the Enrollment
Agreements and in this Courts order dated March 13, 2015:
In summary, the arbitration clauses in the Enrollment Applications include the essential
terms of an enforceable arbitration agreement under Florida law. They describe how the
Garcias initiate arbitration ("I will submit a request for arbitration to the IJC), identify
the matters which would be arbitrated (any dispute claim or controversy), describe
the selection of arbitrators (you designate one, we designate one, and those two
designate a third), identify the qualifications of the arbitrators (Scientologist in good
standing) and provide that arbitration is binding.
Specifically, counsel for the Church explained to the Garcias counsel that the demand for
arbitration needed to be sent to the IJC and that the parties to the arbitration needed to be
identified. Exhibit 2, see letter dated August 17, 2015. Church counsel also provided the
Garcias with the IJCs email address to facilitate direct communication between the Garcias and
the IJC. As anticipated, the Garcias expanded their demands to include additional parties and

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issues, which, if included in their complaints, would have deprived the court of subject matter
jurisdiction. Exhibit 3, emails dated August 18, 2015 and August 27, 2015.1
Plaintiffs next proposed Garth Lombard, another well-known Church critic who was not
a Scientologist in good standing. In response, the IJC suggested:
If you wish, I am willing to provide you with a list of qualified arbitrators in the Greater
Los Angeles/Orange County area. Alternatively, if you prefer, you can send me a list of
potential arbitrators and I can let you know which of them would qualify.
Exhibit 4, IJC email dated August 24, 2015. One week later, the IJC once again offered to
provide the Garcias with a list of qualified arbitrators, warranting that he would not communicate
with them in advance. Exhibit 5, IJC email dated September 4, 2015.
Rejecting the first and ignoring the second of the IJCs offers of assistance, the Garcias
instead proposed as potential arbitrators at least three other clients of Mr. Babbitt, all of whom
have asserted Garcia-type claims against the Church (Susan Crane, Pete Pagano, and Martha
Conway). The purpose of proposing such persons was simply to evoke multiple rejections by the
IJC to then serve as support for this motion.

In their original complaint, the Garcias named as defendants, Church of Scientology Religious
Trust (CSRT), IAS Administrations (IASA), and US IAS Members Trust (USIMT), and asserted
claims directly against such entities based on factual allegations of acts committed by staff
employees of those entities. The defendants then moved to dismiss the complaint for lack of
diversity jurisdiction, showing that several of these entities were citizens of California. In
response, plaintiffs filed a motion seeking leave to file an amended complaint in which they
dropped CSRT, IASA, and USIMT as defendants, and then alleged that they had been mistaken
as to who had committed the alleged acts giving rise to their claims; plaintiffs now asserted that
all the acts in question had been committed by the remaining defendants, FSO and FSSO. The
court permitted the amendment and denied the motion to dismiss.
In their submissions to the IJC requesting arbitration, however, the plaintiffs reasserted
their original claims against CSRT, IASA, and USIMT. Astonishingly, they also stated that the
factual basis of their claims were set forth accurately in their original complaint, not the amended
complaint that had shifted all their allegations to FSO and FSSO in an attempt to save their case
from dismissal. And, plaintiffs also added a claim against the Church of Scientology of Orange
County (California), a party that also would destroy diversity jurisdiction.
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In addition, Plaintiffs unsuccessfully sought to communicate directly with numerous


Scientologists with whom they had socialized and worked, inquiring whether they would serve
as arbitrators. The Garcias well knew, as indeed they had argued to this Court, that most
Scientologists will decline to have direct contact with former members who have been
excommunicated or declared. The Garcias also knew and repeatedly were informed that they
could communicate through the IJC to facilitate selection of an arbitrator. Two of the people to
whom the Garcias sent their request, Laura Quintero and Paul Bove, consistent with church
doctrine, reported that contact to the Church.

The IJC reminded the Garcias that direct

communication violated Church doctrine as they well knew, offered to facilitate any such
communication and noted that both Laura Quintero and Paul Bove were Scientologists in good
standing and, therefore, were qualified to serve as arbitrators. Id. and Exhibit 6, letter dated
September 18, 2015. Revealingly, as soon as the IJC confirmed the qualification of Quintero and
Bove, the Garcias rejected them because their adherence to Church doctrine purportedly made
them of biased disposition. See Exhibit 7, email dated September 15, 2015.
Plaintiffs also apparently emailed 19 other former Scientology acquaintances or friends,
unbeknownst to the IJC or the Church until the filing of this motion. Attached to the Garcias
Motion to Lift Stay are emails (Doc 206-7) that Mr. Garcia represents he sent to twenty persons2.
The Garcias motion (page 4) represents the emails were sent to find out if they [the addressees]
would at least speak to him [Garcia] about serving as an arbitrator. Consistent with Church
doctrine, most or all did not respond to Mr. Garcias emails. None of the persons to whom the
emails were sent were ever proposed by the Garcias as potential arbitrators nor have the Garcias
inquired as to whether any were Scientologists in good standing.
2

Mr. Garcia actually sent emails to 21 individuals, including Mr. Bove and Ms. Quintero. There
are only 20 emails in Doc 206-7, which does not include the email he sent to Mr. Bove.
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After receiving Plaintiffs instant motion and gleaning identities from the email
addresses, the IJC has determined that 18 of the 21 are Scientologists in good standing and thus
qualified to serve as arbitrators. Exhibit 8, declaration of Mike Ellis. Those 18 persons have
been identified in a separate writing sent to the Garcias attorney dated May 12, 2016. The
Garcias can designate any of these qualified persons as their appointed arbitrator.
The Garcias steadfastly have refused to accept the IJCs offer to facilitate
communications, preferring instead to contend that Church doctrine prevents their ability to
locate Scientologists in good standing. More likely than not, if the Garcias had accepted the
facilitation offered by the IJC, they would have identified any number of former
acquaintances/co-workers qualified and willing to act as arbitrators in the Los Angeles area.
The Garcias have or had an extensive circle of friends -- presumably some or all would
be Scientologists in good standing and willing to serve as arbitrators. Significantly, the act that,
in part, led to the Garcias excommunication was a resignation announcement they emailed to
approximately 200 Scientologist friends and acquaintances.
Q. And who were the friends you sent it to?
A. Well, I had a - - over the many, many years, I had accumulated a data base of
contacts. I had a couple of hundred friends and acquaintances that were all
Scientologists.
Exhibit 9, Luis Garcia January 2015 depo, p. 50.
Instead, the Garcias purport to have selected names from a website of some 16,000
persons who eight years ago proclaimed their status as Scientologists and who welcomed contact
and communications regarding Scientology. See http://on-line.scientology.org. Although the
website is owned by the Church, as the copyright notice on the front page of the website reveals,
it has not been updated since 2008, Exhibit 10, Declaration of Allan Cartwright, and clicking on
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many of its hyperlinks results in a message that the service is no longer available. Presumably,
the majority of persons identified on the website remain Scientologists in good standing.
Remarkably, and surely not coincidentally, the Garcias selected 35 names from the purported
16,000 names available and almost all were found to be persons who were part of a small group
led by, inter alia, Mike Rinder, Mr. Babbitts consultant, who split off from the church,
attempted to form an independent Scientology movement, and actively criticize the Church
and its policies. Id.

Most of the persons designated by the Garcias can be identified as

disaffected Scientology critics by running a simple internet search with their name and the term
Scientology. For example, Katrina James is the daughter of Haydn James, a Church critic who
testified on behalf of the Garcias in the evidentiary hearing held before this Court on February
18-19, 2015. Indeed, the Garcias are known to have attended a convention of such independent
Scientologists in July, 2011; some of the persons designated as potential arbitrators by the
Garcias also attended that convention. Id.
Despite the Garcias efforts to avoid identifying Scientologists in good standing, two of
the persons on their designated list, Ray Barton and Jasmin (Buchele) Napier, are Scientologists
in good standing. The IJC communicated with both persons. See Exhibit 11, IJC letters dated
October 21, 2015, and November 30, 2015. While initially receptive, after realizing that the
estimated weeklong arbitration would be held in Los Angeles, California, both declined: Mr.
Burton being 90 years of age and residing in Clearwater; and, Ms. Napier living in the Bahamas
and having two small children and a husband who travels. See Exhibit 12, Barton/Napier letters.
Thus, despite concerted efforts to avoid doing so, the Garcias identified at least 4 persons
who were qualified and apparently willing to serve as arbitrators -- Ray Barton, Jasmin
(Buchele) Napier, Laura Quintero, and Paul Bove and apparently 16 others who would be

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qualified as arbitrators. Ellis Dec. And they twice have declined the IJCs offer to provide lists
of additional qualified arbitrators in the Los Angeles area, where the Garcias live and where the
arbitration would take place. Nevertheless, the Garcias represent that Church doctrine prevents
them finding and selecting an arbitrator.
IDENTIFICATION OF SCIENTOLOGISTS IN GOOD STANDING
The Garcias complain the Church has refused to provide a nationwide list of
Scientologists in good standing. They complain of this not because they have need of such a list
but because they suspect the Church does not want to create or provide such a list. As explained
by the IJC, providing such a list would be extremely burdensome, moreover, there are significant
privacy issues with providing such a list to persons who are adverse to the Church. Exhibit 6,
letter dated September 18, 2015. Because of privacy considerations, any list produced by the IJC
would necessarily require the permission of individual Scientology churches/missions as well as
the permission of the persons listed. Although the IJC twice offered to provide a much more
useful list of qualified persons in the Los Angeles/Orange County area, the Garcias rejected or
ignored the offers.
MEMORANDUM OF LAW
Plaintiffs argue that Defendants alleged failure to follow the procedures of the arbitration
agreement constitutes a waiver of their right to compel arbitration. Even if, contrary to the facts
set forth above, Defendants, rather than Plaintiffs, had failed to follow the procedures, Plaintiffs
motion is contrary to the terms of the Federal Arbitration Act. Under that Act, the appropriate
procedure if there shall be a lapse in the naming of an arbitrator or arbitrators is that the court
shall appoint an arbitrator. Section 5.

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Plaintiffs purport to rely on BP Exploration Libya Ltd. v. ExxonMobil Libya Ltd., 689
F.3d 481, 495-96 (5th Cir. 2012) in arguing that this Court should remove all arbitrators from
adjudicating this matter and assume the task itself. BP Exploration Libya, however, clearly
holds that a district courts role in resolving an impasse in the selection of arbitrators is limited to
enforcing, as closely as possible, the parties agreement to arbitrate. Id.at 495 (in exercising its
appointment authority under 5, the district court must respect the intentions of the parties, as
demonstrated in their arbitration agreement; there being no authorization under the FAA's
express terms for a federal district court to remove an arbitrator from service).
BP Exploration Libya, of course, did not involve a religious-based arbitration. This case
does. Serious First Amendment questions would arise if the court were to get involved in the
appointment of an arbitrator in such a context. In particular, the court cannot determine whether
a specific individual is a Scientologist in good standing qualified to sit as an arbitrator. Every
effort should be made to compel the Plaintiffs to select a qualified arbitrator in accordance with
Scientology rules and policy, or, if they are unwilling to do so, to abandon their claim entirely.
At the most, in the context of this matter, BP Exploration Libya counsels that this Courts
authority to intervene is limited to selecting one of the now eighteen known qualified persons to
serve as the Garcias appointed arbitrator, if the Garcias are unable to select one of them (or
another qualified person) within some reasonable period of time, i.e., perhaps 30 days.
Plaintiffs reliance on Adam Techs. Int'l S.A. de C.V. v. Sutherland Glob. Servs., Inc., 729
F.3d 443, 453 (5th Cir. 2013) is of little help. In that case, Adam argued that efforts to select an
arbitrator had lapsed and for the reasons explained in BP Exploration Libya asked the district
court to appoint the arbitrator. The court, however, held that a lapse had not occurred, but that
the problem was caused by Adams refusal to comply with the selection process and the

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resolution of that noncompliance by the arbitration process. The same refusal occurs here.
Rather than accepting and engaging the process, the Garcias seek again to litigate the process
which this Court has already reviewed in detail and adjudicated. At best, Adam indicates only
that this Court should appoint the arbitrator from among those individuals qualified so that the
arbitration process can proceed.
Plaintiffs also cite Boulds v. Dick Dean Econ. Cars, Inc., 300 S.W.3d 614, 619 (Mo. Ct.
App. 2010). In relevant part, Boulds provides that waiver of arbitration is founded upon the
intentional relinquishment of a known right. Id at 619. A party waives its right to arbitrate if it
(1) has knowledge of the right to arbitrate, (2) acts inconsistently with that right, and (3)
prejudices the party opposing arbitration. Id. A strong presumption exists against waiver, and
any doubt is resolved in favor of arbitration. Id. 619. A similar test is found in another case cited
by the Plaintiffs. In Ivax Corp. v. B. Braun of Am., Inc., 286 F.3d 1309, 1315-16 (11th Cir.
2002) the court discussed a two-part test to be used in determining whether a party has waived its
right to arbitrate. First, under the totality of the circumstances has a party acted inconsistently
with the arbitration right and, second, has that party prejudiced the other party. Id at 1315-16.
However, neither the Boulds nor Ivax test helps the Plaintiff because the Church has not
waived or acted inconsistently with its right to arbitrate. Rather the Church has insisted only that
the Garcias appoint a Scientologist in good standing and has consistently and repeatedly offered
to assist them in their effort to communicate with (a) their former friends and associates and (b)
Scientologists in good standing in the Los Angeles/Orange County area. It is the Plaintiffs who
have not made a good faith effort to locate and select a Scientologist in good standing.
Plaintiffs also cite In re Checking Account Overdraft Litigation, 754 F.3d 1290, 1296
(11th Cir. 2014), but that case has no application here because it deals with the waiver of a

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delegation clause where the parties jointly submitted the issue to the district court for resolution
and the losing party then belatedly argued it should have been decided by the arbitrator.
Likewise, Plaintiffs reliance on Garcia v. Wachovia Corp., 699 F.3d 1273, 1275 (11th Cir.
2012) is of no assistance because it deals with waiver because the defendant invoked the
litigation machinery and failed to timely move to compel arbitration. Here the defendant timely
moved to compel arbitration, and its request was granted.
CONCLUSION
The Garcias continue their efforts to avoid the arbitration clause that this Court has
already upheld. A process exists for the Garcias to find and appoint a Scientologist in good
standing. The Garcias have failed to avail themselves of that process. Nevertheless, their efforts
have identified 18 persons qualified to serve as an arbitrator. A process also exists whereby the
IJC will facilitate communication between the Garcias and Scientologists in good standing
should they chose to use it. This Court should deny the pending motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 16, 2016, I electronically filed the foregoing with the
Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the
following: RONALD P. WEIL, ESQUIRE, rpw@weillaw.net, and THEODORE BABBITT,
ESQUIRE, tedbabbitt@babbitt-johnson.com, Attorneys for Plaintiffs.
JOHNSON, POPE, BOKOR,
RUPPEL & BURNS, LLP
Of Counsel:
Eric M. Lieberman
Rabinowitz, Boudin, Standard,
Krinsky & Lieberman, P.C.
45 Broadway, Suite 1700
New York, NY 10006

/s/ F. Wallace Pope, Jr.


F. Wallace Pope, Jr.
Florida Bar No. 124449
wallyp@jpfirm.com
Robert V. Potter
Florida Bar No 363006
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elieberman@rbskl.com

bobp@jpfirm.com
Post Office Box 1368
Clearwater, Florida 33757
(727) 461-1818; (727) 462-0365-fax
Attorneys for Flag Church & Ship Church

3521077

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