monique rathbun v. scientology: lubow appeal

8/12/2019 Monique Rathbun v. Scientology: Lubow Appeal

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ACC03-14-00199-

1THIRD COURT OF APPEAL

AUSTIN, T6/11/2014 7:19:00 P

JEFFREY D. K

FILED IN3rd COURT OF APPEALS AUSTIN, TEXAS

6/11/2014 7:19:00 PM JEFFREY D. KYLE Clerk


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IDENTITY OF PARTIES AND COUNSEL

1 Appellant David J Lubow

Represented in the trial court and on appeal by:

Stephanie S BasconState Bar No. 19356850LAW OFFICE OF STEPHANIE S BASCON P L L C

297 W San Antonio StreetNew Braunfels Texas 78130Telephone: 830-625-2940Facsimile: [email protected]

2 Other Appellants

a Church o Scientology International


Ricardo G CedilloIsaac J HuronDAVIS CEDILLO MENDOZA INC.McCombs Plaza Suite 500

755 E. Mulberry AvenueSan Antonio Texas 78212Telephone: 210.822.6666Facsimile: 210.822.1151

George H. Spencer Jr.CLEMENS SPENCER112 E. Pecan Street Suite 1300San Antonio Texas 78205-1531

Telephone: 210.227.7121Facsimile: 210.227.0732

Bert H. DeixlerKENDALL BRILL KLIEGER

10100 SantaMonicaBlvd . Suite 1725Los Angeles California 90067


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Telephone: 310.272.7910Facsimile: 310.556.2705Additional Counsel on appeal:

Thomas S. LeatherburyMarc A. FullerVINSON ELKINS LLP

Trammell Crow Center200 Ross A venue Suite 3 700Dallas Texas 75201Telephone: 214.220.7792Facsimile: 214.999.7792

Eric M. Lieberman

RABINOWITZ BOUDIN STANDARDKRINSKY LIEBERMAN PC

45 Broadway Suite 1700New York New York 10006Telephone: 212.254.1111Facsimile: 212.674.4614

b Steven Gregory Sloat


Jonathan H. HullREAGAN BURRUS401 Main Plaza Suite 200New Braunfels Texas 78130Telephone: 830.625.8026Facsimile: 830.625.4433

c Monty Drake


0 Paul DunaganSARLES OUIMET

370 Founders Square900 Jackson Street


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Dallas, Texas 75202Telephone: 214.573.6300Facsimile: 214.573.6306

d Ed Bryan

Represented in the trial court and on appeal by

Jonathan H HullREAGAN BURRUS401 Main Plaza, Suite 200New Braunfels, Texas 78130Telephone: 830.625.8026Facsimile: 830.625.4433

3 Appellee Monique Rathbun

Represented in the trial court and on appeal byRay B. JeffreyA Dannette MitchellJEFFREY & MITCHELL, P C2631 Bulverde Road, Suite 105Bulverde, Texas 78163

Telephone: 830.438.8935Facsimile: 830.438.4958

Marc F. WiegandTH WIEGAND LAW FIRM P C

434 N. Loop 1604 West, Suite 2201San Antonio, Texas 78232Telephone: 210.998.3289

Elliott S CappuccioLeslie Sara HymanPULMAN, CAPPUCCIO, PULLEN, BENSON, & JONES, LLP2161 N.W. Military Hwy., 400San Antonio, Texas 78213Telephone: 210.222.9494Facsimile: 210.892.1610

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T BLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ iTABLE OF CONTENTS ......................................................................................... ivINDEX OF AUTHORITIES .................................................................................... vi

STATEMENT OF THE CASE .............................................................................. viiiSTATEMENT REGARDING ORAL ARGUMENT ............................................. ixISSUES PRESENTED ............................................................................................... xSTATEMENT OF FACTS ........................................................................................STANDARD OF REVIEW ...................................................................................... 3SUMMARY OF THE ARGUMENT ........................................................................ 4ARGUMENT ............................................................................................................. 7

I. THE DISTRICT COURT'S HOLDING THAT PLAINTIFF'S CLAIMS

WERE EXEMPT FROM THE TCPA WERE ERRONEOUS ANDWOULD RENDER THE TCPA A VIRTUAL NULLITY ............................ 7A The Commercial Speech Exemption Does Not Apply to

Plaintiffs Claims ................................................................................... 7

B. The Bodily Injury Exemption o Section 27.010(c) Does NotApply to Plaintiffs Claims .................................................................... 7

II. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFF'S

CAUSES OF ACTION WERE NOT BASED ON, RELATED TO ORIN RESPONSE TO THE EXERCISE OF APPELLANTS' RIGHTS TOFREE SPEECH, ASSOCIATION, OR PETITION ....................................... 7

III. PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE SHE DIDNOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO SUPPORTESSENTIAL ELEMENTS OF THOSE CLAIMS AND CANNOTOVERCOME LUBOW'S AFFIRMATIVE DEFENSES ............................... 8

A. Plaintiff's Claim for Tortious Interference with Contract Should BeDismissed .............................................................................................. 8

B. Plaintiff's Invasion o Privacy Claim for Intrusion Should BeDismissed............................................................................................ 12

C Plaintiffs Invasion o Privacy Claim for Public Disclosure oPrivate Facts Should Be Dismissed ................................................... 15

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INDEX O UTHORITIES

Cases Pages

Brewerton v. Dalrymple,997 S.W.2d 212, 215 Tex. 1999) ....................................................................... 8

Butnaru v. Ford Motor Co.,84 S.W.3d 198,207 Tex. 2002) ............................................................................ 8

Clayton v. Wisener,190 S.W.3d 685, 696-97 Tex. App.-Tyler 2005, pet. denied) ....................... 5

Comhill Insurance PLv.

Valsamis,106 F.3d 80, 85 5th Cir. 1997) ........................................................................... 5

Creditwatch, Inc. v. Jackson,157 S.W.3d 814,818 Tex. 2005) ...................................................................... 8

Hill v. Heritage Res. Inc.,964 S.W.2d 89, 23 Tex. App.-El Paso 1997, pet. denied) ............................... 8

Hoffmann-La Roche Inc. v. Zeltwanger,144 S.W.3d 438, 447 Tex. 2004) ....................................................................... 8

Jennings v. Minco Tech. Labs, Inc.,765 S.W.2d 497, 500 Tex. App.-Austin 1989, writ denied) ............................ 2

Kroger Tex. Ltd. P ship v. Suberu,216 S.W.3d 788, 796 Tex. 2006) ........................................................................ 7

Prudential Ins. Co. o f Am. v. Fin. Review Servs., Inc.,

29 SW3d 74, 77 Tex. 2000) .................................................................................. 8

Rehak Creative Services, Inc. v. Witt404 S.W.3d 716, 726 Tex.App.-Houston [l4 1h Dist.] 2013) ....................... 11, 4

Star Telegram, Inc. v. Doe,915 S.W.2d 471,473-74 Tex. 1995) ................................................................. 6

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Valenzuela v. Aquino853 S.W.2d 512 Tex. 1993) ............................ ................................. .................. 12

Vaughn v. Drennon202 S.W.3d 308, 320 Tex. App. -Tyler 2006, no pet.) ......................... 12, 13, 14

Webb v. CBS Broadcasting Inc.No. 08 C 6241, 2011 WL 4062488 N.D. Ill. Sept. 13, 2011) ............................ 14

Webb v. Glenbrook Owners Ass n, Inc.298 S.W.3d 374, 387 Tex. App.-Dal las 2009, no pet.) ................................... 14

Wehling v. Columbia Broad. Sys.721 F.2d 506, 509 5th Cir. 1983) ....................................................................... 14

Statutes and Rules

TEX. CIV. PRAC. REM. CODE 27.001 ............................................................. viii, x

TEX. CIV. PRAC. REM. CODE 27.005 c) ................................................. 11, 12, 15

TEX. CIV. PRAC. REM. CODE 27.010 b) ................................................................ x

TEX. CIV. PRAC. REM. CODE 27.010 c) ....................................... ......................... x

TEX. CIV. PRAC. REM. CODE 27.009 a) 1) ......................................................... xi

TEX. CIV. PRAC. REM. CODE 27.009 b) .............................................................. xi

TEX.R.APP.P.9.7 ......................................................... 1,3 ,4 , 7-8,12, 15,17-18,20

Other uthorities

WILLIAML. PROSSER TORTS 117 4 1h Ed.) .......................................................... 16

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ST TEMENT OF THE C SE

Nature o the case This case arises out o f an ongoing public controversybetween Defendant/ Appellant Church of ScientologyInternational (the "Church") and former Scientologist Marty

Rathbun and his wife, Plaintiff/ Appellee Monique Rathbun,who became outspoken and public critics o f the Church andits leadership. Monique Rathbun sued the Church, as well asDavid Lubow ("Lubow") and others in connection with thisdispute.

Trial court

Course oproceedings

Trial courtdisposition

Monique Rathbun asserted claims for tortious interferencewith contract, invasion o f privacy by intrusion uponseclusion, invasion of privacy by publication of private facts,

and intentional infliction of emotional distress. 1 R 28-40.

The Honorable Dib Waldrip o f the 433rd Judicial DistrictCourt n Coma County presides over the trial courtproceedings.

The Plaintiff obtained an ex parte Temporary RestrainingOrder against the Defendants. 1 R 41-42. Lubow and theother Appellants filed Motions to Dismiss under the TexasCitizens' Participation Act, Tex. Civ. Prac. Rem. Code 27.001 t seq (the "Act" or "TCPA"). 1 R 02-146; 3

R 337-40; 5 CR 582-84; 5 R 587-91. After a timelyhearing, the trial court denied the Motions finding the TCP Adid not apply because the claims were exempt under the"commercial speech" and "bodily injury" exemption. 31CR3 764-77. The trial court also awarded attorneys' fees andcosts to Monique Rathbun even though he specifically foundthat the motions were not frivolous. 3 CR 3776-77.

The trial court denied Appellants' Motion to Dismiss onMarch 14, 2014. Jd Appellants timely filed their Notice ofAppeal on April 2, 2014. 50 R 5687-90. The district courtsigned a Supplemental Ruling on April 4, 2014. FirstSupplemental CR 27.

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ISSUES PRESENTE

1. Whether the district court erred in denying Lubow's Motion toDismiss Plaintiff's claims under the Texas Citizens Participation Act ( TCPA )?

2. Whether the district court erred in holding that the TCPA's exemptionfor legal actions brought against a person primarily engaged in the business oselling or leasing goods or services arising out o commercial activity applied toAppellants? TEX. CJV. PRAC. REM. CODE 27.010(b)

3. Whether the district court erred in holding that the TCPA's exemptionfor legal actions seeking recovery for bodily injury applied where Plaintiffsalleged damages were headaches and nausea? TEX. C V. PRAC. REM. CODE27.010(c)

4. Whether the district court erred in holding that Plaintiff's claims werenot based on, relate[ d] to, or in response to Appellants' exercise o the righto free speech, right o association, or right o petition, and therefore were notsubject to the TCPA? TEX. Crv. PRAc. REM. CoDE 27.001 (defining terms)

5. Whether the district court erred in not dismissing Plaintiffs claimagainst Lubow for tortious interference with her employment contract because (a)Plaintiff failed to provide clear and specific evidence that her employer breachedor terminated her contract; (b) Plaintiff failed to provide clear and specificevidence that any alleged breach by her employer was proximately caused byactions ofLubow; and (c) the claim is barred by the statute oflimitations?

6. Whether the district court erred in not dismissing Plaintiff's claimagainst Lubow for invasion o privacy by intrusion into seclusion because (a)Plaintiff failed to provide clear and specific evidence that Lubow intruded intoprivate areas or matters that are within the zone o privacy protection under Texaslaw; and (b) the acts are protected by the First Amendment?

7. Whether the district court erred in not dismissing Plaintiffs claimagainst Lubow for invasion o privacy by public disclosure o private facts because(a) Plaintiff failed to provide clear and specific evidence that Lubow publiclydisclosed any facts, private or otherwise, about her; (b) Plaintiff cannot seek relieffor the alleged disclosure o private facts about her husband; (c) Plaintiff failed toprovide clear and specific evidence that anyone disclosed private facts about herhusband to more than a few individuals, and not the public at large; (d) the alleged

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disclosure o facts about Plaintiffs husband was a matter o legitimate publicconcern protected by the First Amendment; and (e) the claim is barred by thestatute o limitations?

8 Whether the district court erred in not dismissing Plaintiffs claim

against Lubow for intentional infliction o emotional distress because (a) the tort isapplicable only as a gap filler and Plaintiff alleges claims for the same acts underother torts and intentionally avoided alleging others; (b) Plaintiff failed to provideclear and specific evidence that Lubow committed acts that meet the standard ooutrageous conduct ; (c) the acts were protected by the First Amendment.

9 The Plaintiffs claims for vicarious liability and conspiracy cannotsupport Plaintiff s causes o action against individual Appellants.

10 Whether the district court erred in awarding attorneys' fees and coststo Plaintiff in violation o the TCPA, where the court expressly held that Lubow'sMotion to Dismiss was not frivolous and made no finding (nor could it have)that his Motion was solely intended to delay, TEX Crv. PRAc REM CODE27.009(b), and further erred in failing to hold that Lubow was entitled to hisattorneys' fees and costs under Section 27.009(a)(l)?

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ST TEMENT OF F CTS

Lubow adopts and incorporates by reference the Statement of Facts o f the

Church's Brief. TEX R APP P. 9.7.

David Lubow ( Lubow ) is a private investigator licensed in the state o f

California. 2 R 277 ~ 3 Prior to 2009, Lubow was retained by Los Angeles

attorney, Elliot Abelson, on behalf of his client, the Church of Scientology

International (the Church ), to perform investigative actions in support of

litigation, prospective litigation and threatened litigation in which the Church was

or could be involved. 2 R 278 ~ 4 He was also retained to investigate potential

violations o f intellectual property rights licensed to the Church relating to the

Scientology religion. d

The only evidence submitted by the Plaintiff to the trial court of any

investigation by Lubow was his alleged conversations with co-workers o f Plaintiff

Monique Rathbun and inferences o f alleged conversations with Plaintiff's ex-

husband, Franklyn Carle III in the fall o f 2010 and the spring of 2011.

3364-66; 33 R 3923; 42 CR 4883.

28 CR

No evidence has been presented to the court that Lubow or any investigator

working for him or within his knowledge, ever photographed inside the Rathbun's

place of business/residence, used any form or electronic surveillance with respect

to the interior o f his business/residence, used any form o f microphone to overhear


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private conversations inside or on the porch of their place o f business/residence,

interfered with or wiretapped the Rathbuns telephone or internet service,

physically blocked or interfered with their freedom of movement or physically

touched or threatened the Rathbuns. 2 CR 279 ~ 7 No surveillance was conducted

by photographing into their windows or doors; no electronic devices were ever

used to track Marty Rathbun or Plaintiff. d.

At no time did Lubow or anyone working under his direction, or in

coordination with him, undertake any unlawful actions, actions exceeding his

California private investigator license, or any action which otherwise violated the

privacy of the Rathbuns. 2 CR 279 ~ 6 The focus of Lubow s investigation was

Mr. Rathbun, not Plaintiff. Jd

No evidence was presented to the trial court that Lubow or anyone working

with or for him ever sent anything to Mrs. Rathbun or to her place of employment,

28 CR 3388 ~ 3

Lubow s also a member of the Scientology religion. 2 R 280 ~ 9 After

2009, Lubow saw for himself that Marty Rathbun had undertaken a prolonged

world-wide campaign to attack and impugn the Scientology religion and its

ecclesiastical leadership, often in highly charged, emotional terms. Rathbun also

engaged in delivering Scientology services and counseling at his office/home even

though he had been expelled from the Church and possessed no religious authority

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to provide such services. 2 CR 280-81 10 Lubow was surprised by the false

and derogatory assertions being made by Marty Rathbun on the internet and as a

dedicated Scientologist he was concerned that Rathbun was offering a discordant

version o f Scientology. d. Lubow and other Scientologists wished to demonstrate

against what they perceived to be heinous acts by Rathbun and they agreed to

simultaneously demonstrate at Rathbun s office and make a documentary

regarding Rathbun. 2 R 281 1 1 The work was planned as both a film and short

videos of Rathbun and the protests against him to educate other Scientologists and

the general public that Rathbun was, in Scientology terminology, a squirrel. d.

The group of protestors became known as the Squirrel Busters. Lubow was the

director and co-producer of the Squirrel Busters Production regarding Rathbun. 2

CR 287 ~ 6 Lubow was a filmmaker who had written and produced a feature

length documentary titled Prescription Suicide? 2 R 277 ~ 3 (a complete

discussion of the Squirrel Busters and Plaintiffs claims concerning their actions is

contained in the Church s Brief, Statement of Facts Section, which is incorporated

herein by reference).

ST ND RD OF REVIEW

Lubow adopts and incorporates by reference the Standard of Review section

o f the Church s Brief. TEX R APP P. 9.7.

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Superior only fter Plaintiff had resigned from her job. Neither o these actions

could have caused injury to Plaintiff. Plaintiffs claim is further negated by her

own admission that she resigned from her job at Superior in April o 2011. She

presented no evidence that any act by Lubow proximately caused her employer to

take any negative employment action against her. The only other evidence

regarding Lubow and Plaintiff's employment would be based on innuendo and

inferences not allowed under the statute. The claim is also barred by the statute o

limitations.

Plaintiffs privacy claim against Lubow for intrusion on seclusion does not

survive a challenge under the TCP A because there was no evidence o either a

physical invasion o Plain tif fs property or eavesdropping on her conversation with

the aid o wiretaps, microphones, or spying. Here, no such improper intrusion

occurred. In fact, there is no evidence that Lubow used any such equipment or

conducted any surveillance o the Plaintiff in his role as an investigator. Plaintiff

herself has conceded that she has no knowledge o any such intrusion. Lubow's

activities as a Squirrel Buster were conducted on public property.

Plaintiffs claim against Lubow or invasion o privacy by publication o

private facts also fails because Plaintiff provided no specific evidence that Lubow

disclosed any private facts about Plaintiff or that he published comments to the

public as that is defined under Texas law.


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Plaintiff's final claim o intentional infliction o emotional distress ( liED )

against Lubow must also fail. The liED claim must be dismissed under the gap-

filler doctrine and the Plaintiff has alleged the same facts in support o each o her

causes o action. The liED claim also fails to meet Texas' strict application o the

outrageousness element and Lubow's alleged conduct does not rise to this level.

The acts o the Squirrel Busters also are protected under the First

Amendment and may not be the predicate for claims o liED or any other tort.

There is no evidence against Lubow regarding the vicarious liability theories

that Plaintiff globally asserted in her Second Amended Petition. Plaintiff failed to

provide evidence in her submission to the trial court that establishes any vicarious

liability between the Appellants.

Finally, the district court violated the TCPA by awarding costs and fees to

Plaintiff. The district court acknowledged Appellants' motions were not frivolous

and made no finding that it was undertaken exclusively for delay, as the TCPA

reqUires.

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ARGUMENT

I. THE DISTRICT COURT'S HOLDINGS THAT PLAINTIFF'SCLAIMS WERE EXEMPT FROM THE TCPA WERE ERRONEOUSAND WOULD RENDER THE TCPA A VIRTUAL NULLITY.

Lubow adopts and incorporates by reference the arguments of Section I of

the Church' Brief and Section I of Monty Drake's ( Drake ) Brief. TEX R. APP

P. 9.7

A. The Commercial Speech Exemption Does Not Apply toPlaintiff' s Claims.

Lubow adopts and incorporates the arguments of Section LA of the

Church's Brief and Section LA of Drake's Brief. TEX R APP P 9.7.

B. The Bodily Injury Exemption of Section 27.010(c) Does NotApply to Plaintiff 's Claims.

Lubow adopts and incorporates the argument of Section LB. of the

Church's Brief, TEX R APP P 9.7, and the argument of Section I.B of Drake's

Brief. Id

II. THE DISTRICT COURT ERRED IN HOLDING THATPLAINTIFF'S CAUSES OF ACTION WERE NOT BASED ON,RELATED TO OR IN RESPONSE TO THE APPELLANTS'EXERCISE OF RIGHTS TO FREE SPEECH, ASSOCIATION, ORPETITION.

Lubow adopts and incorporates by reference the arguments in Section II of

the Church's Brief. TEX R APP P 9 7

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III. PLAINTIFF'S CLAIMS MUST BE DISMISSED BECAUSE SHE DID

NOT PRESENT CLEAR AND SPECIFIC EVIDENCE TO

SUPPORT ESSENTIAL ELEMENTS OF THOSE CLAIMS AND

CANNOT OVERCOME LUBOW'S AFFIRMATIVE DEFENSES.

Lubow adopts and incorporates by reference the arguments in Section III of

the Church s Brief. TEX. R. APP. P. 9.7.

A Plaintiff's Claim for Tortious Interference with Contract Should

Be Dismissed.

Lubow adopts and incorporates by reference the arguments in Section Ill.C.

of the Church s Brief. Tex. R. App. P. 9.7.

Plaintiff asserts a claim for tortious interference with contract and concedes

she must prove: 1 plaintiff had a valid contract; 2) the defendant willingly and

intentionally interfered with the contract; 3) the interference proximately caused

the plaintiff injury; and 4) plaintiff incurred actual damage or loss. 23 CR. 2748;

Butnaru v Ford Motor Co. 84 S.W.3d 198, 207 (Tex. 2002); Prudential Ins Co

o Am. v Fin. Review Servs. Inc. 29 SW3d 74, 77 (Tex. 2000), see also Hill v

Heritage Res Inc. 964 S.W.2d 89, 123 (Tex. App. El Paso 1997, pet.

denied)(interfering party must have actual knowledge of the existence of the

contract and of the plaintiffs interest or knowledge of such facts and

circumstances as would lead a reasonable person to believe in their existence).

Plaintiff failed to establish. by clear and specific evidence, that Appellant Lubow

tortiously interfered with any contract.

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Plaintiff alleges she had a valid employment contract, however, she never

presented any evidence of that alleged contract.

Plaintiff failed to present any clear and specific evidence of how any

defendant specifically, and defendant Lubow, in particular, attempted to or

supposedly succeeded in interfering with her employment contract. 1 Plaintiff also

failed to present any clear and specific evidence that Lubow proximately caused

her damage, i.e that he caused her to lose her job. In fact, the evidence she did

present was that she voluntarily resigned from her job. CR 1361, 1382; 27 CR

3229.

The only specific evidence that Lubow had any contact regarding Plaintiff's

work are his alleged conversations with Tanya Torrez and Melissa Montana. 42

CR 4883; 28 CR 3364-66. However, Plaintiff's own submission establishes that

Tanya Torrez worked with [Plaintiff] at Coastal Bend Center for Independent

Living (CBCIL) in Corpus Christi for several months during the years of2 6 and

2007. 42 CR 4883. However, Plaintiff's tortious interference claim is based

upon her having resigned from a different company, Superior Health Plan of

Corpus Christi, in 2011. 23 CR 2756. As such, testimony by Ms. Torrez,

Plaintiff's co-worker at CBCIL in 2006/07, cannot be clear and specific evidence

1 Plaintiff provides no specificity o f any alleged interference: she does not allege that shelost employment; that her compensation or benefits were reduced under the contract or that shewas not promoted or considered for promotion. See Church 's Brief at Section III. C.

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paragraph 3, are attributable to Lubow as well. 28 CR 2364-66. However, in order

to draw these conclusions, the court would have to employ inferences that the

man referenced in paragraph 4 and the person who sent items referenced in

paragraph 3 is the same man who arrived at Superior's offices in Corpus Christi

and started asking questions of the receptionist about Monique in paragraph 5 Id.

at ~ 4 But the court is not allowed to make such inferences. See e.g. Rehak

Creative Services Inc. v. Witt 404 S.W.3d 716, 726 (Tex.App.-Houston [14 h

Dist.] 2013)(establishing clear and specific evidence as an elevated standard

that excludes the use of presumption or inference). Even if the court could make

these inferences, Plaintiffs evidence is still not clear and specific evidence that

these events caused Plaintiff to lose her job. See generally TCPRC 27.005 c/

Plaintiff makes the bald statement that the Scientology operatives openly

followed me as I drove to and from work. 23 CR. 2755; 23 CR 2772 ~ 6

However, she fails to identify who the Scientology operatives were, and does not

identify Lubow specifically as following her to and from work. Id. In addition,

there is no evidence presented by Plaintiff that this alleged activity offollowing her

to and from work had any causal connection to her work and, in any way, supports

2 The Plaintiff would demand the court make further inferences that the declarations ofDocineKelly and Franklin Carle are evidence that Lubow tortiously interfered with Plaintiffs contractwith her employer Superior. However, these declarations again do not mention Lubow by nameor even by reference. 33 CR 3922; 33 CR 3923. Also, Ms. Kelly is Pla int iffs mother and Mr.Carle is Plaintiffs former husband, and they provide no evidence that they are n any wayassociated with Plaintiff allegedly losing her job.


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her tortious interference with contract claim. Again, there is such a lack of clarity

or specificity as is required by the anti-SLAPP statute. TCPRC 27 .005( c).

B. Plaintiff s Invasion o Privacy Claim for Intrusion Should BeDismissed.

Lubow adopts and incorporates by reference the arguments in Section III.B.

of the Church's Brief. TEX. R APP. P. 9.7.

Specifically, Plaintiff asserts an invasion of privacy claim for intrusion upon

seclusion and concedes she must prove: 1 the defendant intentionally intruded on

the plaintiffs solitude, seclusion or private affairs; 2) the intrusion would be highly

offensive to a reasonable person; and 3) the plaintiff suffered an injury as a result

of the defendant's intrusion. 23 CR 2748; See Valenzuela v Aquino 853 S.W.2d

512 (Tex. 1993); Jennings v Minco Tech Labs Inc. 765 S.W.2d 497, 500 (Tex.

App. Austin 1989, writ denied). Intrusion upon seclusion is generally

associated with either a physical invasion of a person's property or eavesdropping

on another's conversation with the aid of wiretaps, microphones, or spying.

Vaughn v Drennon 202 S.W.3d 308, 320 (Tex. App. Tyler 2006, no pet.).

There is no clear or specific evidence that Lubow invaded Plaintiffs

property as contemplated in Vaughn. Plaintiff details the Squirrel Busters'

supposed bad behavior. 23 CR 2757-59; 11 CR 1357-59, however, she concedes

the Squirrel Busters did not trespass on her property. 3 RR 200. The Squirrel

Busters confirm this. 2 CR 279, 290, 299-300. Plaintiff claims the Squirrel

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Busters were often lead by David Lubow, however, she provides no specific

evidence o f this and does nothing other than provide her personal, general

comments, that David Lubow would lead the Squirrel Busters. 23 CR 2772

~ 7 c But even that fails to provide any evidence that he lead them onto or in her

property.

The Plaintiff relies on Bert Leahy's testimony that Lubow supposedly said

that the Squirrel Busters wanted to make the Rathbuns' life a living hell. 2 CR

1516. Even i f this were true (which Lubow denies), this does not support any o f

the elements of invasion o f privacy for intrusion upon seclusion. Leahy provides

no evidence, much less clear and specific evidence, that any o f the Squirrel

Busters, or Lubow, individually, physically invaded the Plaintiffs property or that

the Squirrel Busters or Lubow eavesdropped using electronic devices, wiretap or

other spying methods. d.

Plaintiffs only attempt to specify Lubow's actions is her claim that Lubow

confronted me and my husband when we were trying to have a private dinner at

Nightlinger's Restaurant in Ingleside, Texas. 23 R 2773 ~ 7 g This is not the

invasion into a person's property as required n Vaughn. Vaughn v Drennon,

202 S.W.3d 308, 320. Rather, the alleged incident took place in a public

restaurant.

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cameras looking out from his property to adjoining property, and that such

surveillance did not constitute intrusion on privacy of adjoining owner).

In fact, the only specific evidence regarding Lubow is that he interviewed

Plaintiff's co-workers and family members either in person or over the telephone.

28 CR 3364-66; 33 CR 3923; 42 CR 4883. 3 This is not clear and specific evidence

so as to establish a prima facie showing against Lubow for invasion of privacy by

intrusion upon seclusion. TCPRC 27.005(c).

C Plaintiff s Invasion o Privacy Claim for Public Disclosure oPrivate Facts Should Be Dismissed.

Lubow adopts and incorporates by reference the arguments in Section liLA.

ofthe Church's Brief. Tex. R App. P 9.7.

Plaintiff asserts invasion of privacy by public disclosure of private facts and

admits she must prove 1) the defendant publicized information about the plaintiff's

private life; 2) the publicity would be highly offensive to a reasonable person; 3)

the matter publicized is not of legitimate public concern; and 4) the plaintiff

suffered an injury as a result of the defendant's disclosure. 23 CR 2748.

3

See Cornhill Insurance PLC v Valsamis 106 F.3d 80, 85 (5th Cir. 1997)(Fifth Circuitaddressed a claim for invasion of privacy where offensive comments and inappropriate advanceswere made toward the plaintiff and the court held that the plaintiff could not recover for invasionof privacy based on the intentional intrusion upon her solitude or private affairs because she didnot allege a physical invasion of a person's property or eavesdropping on another'sconversation with the aid of wiretaps, microphones, or spying ); see also Clayton v Wisener190 S.W.3d 685, 696-97 (Tex. App.-Tyler 2005, pet. denied) (reversing judgment in favor ofplaintiff on intrusion claim where no evidence that defendant physically invaded [the plaintiffs]property or eavesdropped on one of her conversations ).

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Plaintiff's claim for invasion of privacy by publication of private facts must

fail because the tort o f invasion o f privacy by publication of private facts requires a

plaintiff show that the defendant publicly disclosed true, but highly embarrassing

private facts about the plaintiff; that such publication was highly offensive to a

reasonable person; and that the matter publicized was not of public interest. Star

Telegram, Inc. v Doe, 915 S.W.2d 471,473-74 (Tex. 1995).

Plaintiff does not allege and has not set forth any evidence that Lubow or

any other Defendants publicized true, private facts about her, but rather, complains

that Lubow allegedly made comments regarding Marty Rathbun, which does not

give rise to a cause of action for Plaintiff. Id; 42 R 4883.

Plaintiff cannot establish that Lubow made facts about Mr. Rathbun public

as is required under Texas law, which requires dissemination of the private facts

to the public in general or to a large number o persons, as distinguished from

one individual or a few. WILLIAM L PROSSER, TORTS 117 4th Ed.). The

evidence presented by the Plaintiff is that comments about her husband were made

to 4 people: Doncine Kelly, Franklin Carle, Tanya Torrez and Melissa Montana.

33 R 3922; 33 R 3923; 42 R 4883; 28 CR 3364-66. This is too small a group

to constitute the public as required under Texas law. As it relates to Lubow,

only Ms. Torrez attributes the comments to Lubow. 42 CR 4883. Ms. Kelly

attributes the comments to someone else completely (reporter Jim Lynch). 33 R

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3922. Mr Carle and Ms. Montana cannot identify the person who made comments

to them about Marty Rathbun. 33 CR 3923; 28 CR 3364. Therefore, the only clear

and specific evidence is that Lubow asked questions about Marty Rathbun to only

I person, Ms. Torrez, and that disclosure, to that one person, is insufficient to

uphold a claim for public disclosure of private facts.

D. Plaintiff s Claim for Intentional Infliction o Emotional Distress

Should Be Dismissed.

Lubow adopts and incorporates the argument m Section III.D o f the

Church s Brief TEX R APP P 9.7.

Plaintiff makes a claim for intentional infliction of emotional distress and

admits she must prove: I) the defendant acted intentionally or recklessly; (2) its

conduct was extreme and outrageous; (3) its actions caused her emotional distress;

and ( 4) the emotional distress was severe. 23 CR 2748; Kroger Tex Ltd. P ship v

Suberu, 216 S.W.3d 788, 796 (Tex. 2006). Plaintiff also concedes that she can

succeed on an liED claim only i f there are no alternative causes of action that

would provide a remedy for the severe emotional distress she claims is caused by

the Defendants conduct. 23 CR 2748.

Plaintiff alleges that Lubow engaged in conversations with her co-workers

regarding Marty Rathbun. 42 CR 4883; 28 CR 3364-66. As noted in plaintiffs

petition, she makes claims against Lubow on these same facts for invasion of

privacy, public disclosure of private facts and in her claims for tortious interference

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with contract. 10 CR 1275. Because the Plaintiff uses these same actions by

Lubow in support of all her other claims, she is precluded from relying upon liED

as the gap-filler to seek damages for these alleged bad acts. See Creditwatch, Inc.

v Jackson, 157 S.W.3d 814, 818 (Tex. 2005) quoting Hoffmann-La Roche Inc. v

Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)).

In addition, Plaintiffs allegations that Lubow engaged in conversations with

her co-workers or, by inference, her family members, do not rise to the level of

extreme or outrageous conduct as required to establish a claim for liED. Even i f

Lubow said all the things Plaintiff claims he did to her co-workers and/or family,

questions regarding Marty Rathbun s family and medical history are not so

outrageous or extreme as to give rise to a claim for liED. Such questions or

statements are like those of any investigative reporter. See Brewerton v

Dalrymple, 997 S.W.2d 212, 215 (Tex. 1999)(mere insults, indignities, threats,

annoyances, petty oppressions or other trivialities do not constitute outrageous

behavior). Such conduct by Lubow, even i f true, would not meet the elements of

liED. As such, plaintiff has failed to provide clear and specific elements of liED

as it relates to Lubow or any other Defendant.

E Plaintiff Presented No Evidence to Support Vicarious Liabilityagainst Lubow for the Actions o any other Defendant

Lubow adopts and incorporates by reference the arguments in Section III.E

of the Church s Brief and in Section liLA of Drake s Brie TEX R Arr. P 9 7

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Plaintiff makes bald claims of vicarious liability in broad sweeping global

terms as between all the Appellants. 10 CR 1276-78. She asserts every possible

theory for vicarious liability whether recognized under Texas law or not. Id.

Pla intif fs vicarious liability theories include conspiracy concert o f action

assisting or encouraging or assisting and participating partnership joint enterprise

agency respondeat superior disregarding the corporate structure and ratification.

Id at 1276. Plaintiff fails to present any evidence on these elements. 23 R 2748-

69 Plaintiff also fails to separate out which theories are asserted against which

Appellants and fails to separate out which theories apply as between the various

Appellants. Such claims to not merit any credence.

More specifically Plaintiff cannot support many of the theories because they

require proof of an underlying tort or unlawful act or some injury caused to the

Plaintiff by the Defendant and Plaintiff has failed to establish any tort or unlawful

act or injury caused by Lubow. ee Section III supra. These include the theories

of civil conspiracy concert o f action assisting or encouraging or assisting and

participating joint enterprise and respondeat superior.

Plaintiff also does not assert disregarding the corporate structure as against

Lubow. 10 R 1277-78.

As to the theory o f partnership Plaintiff failed to present any evidence that

Appellants sought any pecuniary interest in their endeavors. 10 CR 1276-78.

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Finally, as to agency, Plaintiff asserts that the individual Appellants are

agents o f the Church 1 0 R 1277), but provides no evidence that the individual

Appellants are agents o f any other individual Appellants. ee generally 23 R

2748-69.

Plaintiffs claims for vicarious liability are just more evidence of Plaintiffs

broad, sweeping allegations that break down under scrutiny.

IV. THE DISTRICT COURT ERRED IN A WARDINGATTORNEYS FEES AND COURT COSTS AGAINST LUBOWAND IN FAILING TO AWARD HIM HIS FEES AND COSTS.

Lubow adopts and incorporates the argument in Section IV. of the Church s

Brief. TEX. R APP. P. 9.7.

CONCLUSION AND PRAYER

Appellant David J. Lubow prays that this Court reverse the trial court s order

which denies his Motion to Dismiss and awards fees and costs against him, grant

his Motion to Dismiss, and render judgment for him, dismissing all o f Plaintiffs

claims with prejudice and remanding for further proceedings concerning his claim

for attorneys fees and costs under the TCPA. Lubow prays for such other and

further relief to which he may be entitled.

June 11, 2014

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Respectfully submitted:

By: /s/ Stephanie S asconStephanie S BasconSBN 19356850

Law Office o f Stephanie S Bascon PLLC297 W San Antonio St.New Braunfels, Texas 78130830) 625-2940830) 221-3441 facsimile

ATTORNEY OR APPELLANTDAVID J LUBOW

CERTIFIC TE OF COMPLI NCE

Pursuant to TEX. R APP. P 9.4 i) 3), the undersigned hereby certifies thatthis Brief of Appellants complies with the applicable word count limitationbecause it contains 4648 words, excluding the parts exempted by TEX. R APP. P9.4 i) 1). In making this certification, the undersigned has relied on the word-countfunction in Microsoft Word 2007, which was used to prepare the Brief ofAppellants.

/s/ Stephanie S asconStephanie S Bascon

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CERTIFIC TE OF SERVICE

The undersigned certifies that on the 11th day of June, 2014, the foregoingBrief for Appellant David J. Lubow was served on the following attorneys inaccordance with the requirements of the Texas Rules of Appellate Procedure via

electronic filing or email.

Ray B. JeffreyA. Dannette MitchellJEFFREY MITCHELL P. C.2631 Bulverde Road, Suite 105Bulverde, TX 78163

Elliott S. CappuccioPULMAN CAPPUCCIO PULLEN

BENSON LLP2161 N.W. Military Hwy., 400San Antonio, TX 78213

J. Iris GibsonHAYNES BOONE LLP600 Congress Ave., Suite 1300Austin, TX 78701

0 Paul DunaganSARLES OUIMET

370 Founders Square900 Jackson StreetDallas, TX 75202

Ricardo Cedillo/ Isaac HuronDavis Cedillo MendozaMcCombs Plaza, Ste. 500

755 E. Mulberry Ave.San Antonio, TX 78212

George H. SpencerClemens Spencer112 E. Pecan St., Ste. 1300San Antonio, TX 78205

Marc F. WiegandTHE WIEGAND LAW FIRM P.C.434 N. Loop 1604 West, Suite 2201San Antonio, TX 78232

Lamont A. JeffersonHAYNES BOONE LLP112 E. Pecan Street, Suite 1200San Antonio, TX 78205-1540

Jonathan H. HullREAGAN BURRUS

401 Main Plaza, Suite 200New Braunfels, TX 78130

Bert H. Deixler.KENDALL BRILL KLIEGER

10100 Santa Monica Blvd., Suite 1725Los Angeles, CA 90067

Wallace B. JeffersonRachel EkeryALEXANDER DUBOSE JEFFERSON

TOWNSEND LLP515 Congress Avenue, Suite 2350Austin, TX 78701

Thomas S. LeatherburyMarc A. FullerVINSON ELKINS LLP

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Trammell Crow Center2001 Ross Avenue Suite 3700Dallas Texas 75201Telephone: 214.220.7792Facsimile: 214.999.7792

Eric M. LiebermanRABINOWITZ BOUDIN STANDARD

KRINSKY LIEBERMAN PC45 Broadway Suite 1700New York New York 10006Telephone: 212.254.1111Facsimile: 212.674.4614

/s/ Stephanie S asconStephanie S Bascon

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150 N. Seguin. Suite 317New Braunfels, Texas 78130

D ff iWA L D RI PPRESIDING JUDGE

830-221-1270Fax 830-608-2030

433RD JUDICIAL DISTRICT COURTCOMAL COUNTY

CAUSE NO. C2013-1082B

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D AV I D M ISC AVIGE, R E L I G I O U STECH N O LO G Y C E N T E R C H U R C HO F S CI EN TO LO G Y I N TERN ATI O N A L,STEVEN G R E G O RY S L O AT, M O N T Y D R A K E ,D AV E LU BO W A iK I A D AV ID .J. L A B O W, ANDE D BRYA N ,

DEFENDANTS

207TH .JUDICIAL D I S TRI CT

COMAL CouNTY TExAS

ANTI-SLAPP M O T I O N S OF A L L D EF EN D A N TS F I N D I N G S O F FA C T AND CONCLUSIONSOF L AW & R ULING DENYING ALL A N T I S L A P P M O T I O N S T O D I S M I S S

FINDINGS OF F A C f

I. Defendant Church o f Scientology International ( CSf ' ) , by and through its

agents or contractors. including Defendants David Lubow, Monty Drake and Greg S l o a t ~

undertook extensive survei l lance o f Plaintiff and her husband over a collective period o f

more than four yea rs -poss ib ly six. Monty Drake actually began the investigation o f

Mark Rathbuo in 2007. ee Deposition o f Monty Drake at 52:16-19. He started

Page 1 of25

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several Squirrel Busters had video cameras and microphones o their o w n ~including

some with head-mounted c m e r s ~l i g h t s ~etc. From this point forward, it is clear, and the

Court so finds, that few i any ~ ~ c o n f r o n t a t i o n s .were civi l with both sides ei ther initiating

or reciprocating. See various declarat ions filed either in support o or in response to the

Anti-SLAPP motion to dismiss.

4. Defendant Ed Bryan was sent from California by the Office o f Special

Affairs ( OSA ), a division o f CSI, to join the Squirrel Busters in Texas. On July 13,

2011, Bryan wrote:

This is in co-ordinat ion with OSA Int They are cal l ing the shotsand quite frankly I don't think it is very effective. The reporters carneto our house the o ther day and we didn't tell them very much. Ourmain guy went back to discuss with them a different strategy. The ratis gett ing more brazen and yesterday I actual ly had a 1 minute c ommcycle wi th h im while he was on a walk. The guy is nuttier than afruitcake. He's gone off the deep end. Taking him down will be no easytask. _ . . . See Exh. E to Plaint iff 's 2nd Amended Response to AntiSLAPP Mot ions to Dismiss [emphasis added].

' [l]n the vicini ty o the Rathbun home/office, Joanne Wheaton ' regularly

participated in the Squirrel Buster activities [o]ver a period o several months.

See Declaration o Joanne Wheaton @ n 3 6. While doing so, a house was

rented by Lubow two b locks from the Rathbuns home/office for Wheaton and

other Squirrel Busters to stage their activities from which a golf cart was also

utilized to travel back and forth. d. @ IJ4. The participating individual Squirrel

Busters varied from t ime to t ime as they left and returned at different t imes for

different reasons. I d . @ 14. See also Affidavit o f Richard Hirs t@ IJ7.

A videographer, Bart Parr, was hired by private invest igator Dave, a.k.a.

David, Lubow to film the project at or near Rathbun 's office. See Declarat ion

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o f Bart Parr @ ll ll 4 6. The project occurred over a period o approximately 6

months. Id @ 6. Evidence identifies, and the Court so finds, the per iod o f t ime

o the Squirrel Buster act ivi ties as having started and ended, respect ively, in April

2011 and in September 2011. ee Affidavit o Richard Hirs t @ l1 10 and

Declaration o f Joanne Wheaton @ l1 14.

5. The investigators, videographers and Squirrel Busters interacted with the

Rathbuns many [possibly u h u n d . r e d s ~of] times over a period o f these several months,

usually when the golf cart was parked near their office [on a dead-end street when]

filming was o n g o i n g ~or [when] traveling about the little town u ee Declaration o f

Joanne Wheaton J 6. In a d d i t i o ~private investigator Monty Drake utilized

surveillance, p h o t o g r a p h i n g ~videotaping and static c a m e r a s ~to film areas ~ o u t s i d ethe

R a t h b u n s ~officclhomen in part from inside a second house rented by Drake across the

street from the Rathbuns. ee Affidavit o f Monte Drake @ l1 9. Without any t ime

l i m i t a t i o n ~Drake acknowledges that he was able ''to observe persons coming and going

from the R a t h b u n s ~office home.n ee /d For several months, when the Rathbuns left

their home, the Squirrel Busters group appeared in a golf cart to confron t the Rathhuns

with video cameras and taunts. ee Mark Rathbun Declaration in Support o f Plaintiff's

Second Amended Response to Defendants ' Motion to Dismiss l1 27. Due to bo th this

constant surveillance and the Squirrel Buster activity cited above. Defendants knew when

Plaintiff left home and when she was home alone due to her husband having left their

residence. ee First Amended Declaration o f Monique Rathbun in Support o f Plaintiff's

Hereinafter referred to as Mark Rathbun Declaration.

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Second Amended Response to Defendants ' Motion to Dismiss 3 'lf'lfll, l l a 11 b, l l c , 13a,

13c, 15, Sa and 15b. When her husband was out o f town, Plaintiff was visited at home

on several occasions b y unknown individuals who refused to give their names. I d . @ 5.

6 . Ber t Leahy was also hired a s a videographer for the Squirrel Busters

group. He was told b y Defendant Lubow that Lubow had two private investigators who

were engaged in surveillance o f Plaintiff and her husband and were able to keep track o f

the Plaintiff's movements on a 24n basis. See Declaration o f Bernard "Bert" Leaby lf6.

Leaby was directed by Lubow to film the Squirrel Busters taunting and harassing the

Rathbuns. /d Although denied by Lubow see Declaration o f David Lubow If 4), Leaby

declared to have been told that the purpose o f the Squirrel Busters ' mission was "to make

the Rathbuns life a living hell . and "to turn their neighbors against them . so that Plaintiff

and her husband would be forced f rom their residence. Id Leahy 's declarat ion i s

corroborated by u b o w ~ sstated desire to, in-part, create a documentary showing

[Rathbuo's] t rue n ture as violent, fuolish ' squirrel ' ." Declaration o f David Lubow@ If

12. Assisting in this process, CSI hired Ralph Gomez as "muscle." See Declaration o f

Bert Leaby @ lf6.

7. N o evidence demonstrates that any o f the complained-of Squirrel Buster

or investigative activities occurred at an actual church, at a mission, at a place of worship

or during any other type o f religious service or ceremony; rather, mo s t o f the c t i v i t i e s ~

including those cited by declarants for Defendant CSI, occurred at locations described by

the declarants as the Rathbuns' "home," ' ' h o u s e / ~' 'business/residence/ ' b u s i n e s s ~

"office," "home/off ice / ' or "office/home.'" See various declarations filed either in

support of o r in response to the Anti-SLAPP motion to dismiss.

3 Hereinafter referred to a s ' 'First Amended Declaration o f Monique Rathbun."

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8. Defendants published information from their Squirrel Buster activity and

continuous surveillance o f the Rathbuns on the internet, a dedicated YouTube c h n n e l ~

and on a website which included a section called Spy Corner that discuss ed

information obtained by the surveillance o f the Rathbuns. See Declaration o f Bart Par r@

If 15. See also Declaration o f Mark Rathbun @ If 28. Also published was information

about visitors to and from the Rathbun home creating a chilling effect upon Mark

athbun and possibly others. Id

9. At unspecified times subsequent to 2009 Plaintiff also received

anonymous and threatening phone calls, and she was followed to and from work. ee

First Amended Declaration o Mouique Rathbun If 6. Squirrel Busters and Scientology

investigators or operatives followed Plaintiff to and from restaurants. d , 7g. See a l so

Declaration o f Monte Drake @'If {Drake and others followed Rathbun's car ). See

also e.g. Declaration o f Joanne Wheaton @'If 7 (Mark a.k .a Marty Rathbun drove a

large pick-up truck. ). Plaintiff was similarly followed to and from shopping. See First

Amended Declaration o f Mouique Rathbun @ If 15a. She was similarly followed while

walking her dog. Id @ If 8. he Rathbuns were followed even when they took measures

to avoid being seen leaving their house. ee Declaration o f Mark Rathbun@ f 29.

10. Between September 2010 and December 2012, Lubow, a.k.a. David

Statter, interviewed and confronted Plaintiff's family friends. and co-workers

disparaging Plaintiff, her husband, and his family. See Declaration o f Franklyn R. Carle

@ If 4; Declaration ofTonya Torrez@ If 3; Declaration ofDoncine Kel ly@ If 3.

11. Seeking to avoid the harassment, embarrassment, disruption and extreme

distress imposed on her in the workplace while living in Ingleside on the Bay by

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Defendant Lubow and the other Defendants, Plaintiff gave notice on Apri l 1 2011, to her

then-employer thst she would leave her job at the e n d o f t h s t month. ee First Amended

Declaration o fMo n iq u e Rathbun@ a, l l b , l l c and l l d Mark Rathbun Declaration

@',P3 .

12. In October 2012, the Rathbuns discovered Drake ' s surveil lance cameras

aimed at their residence from a house across the street on the same cul-de-sac. ee Mark

Rathbun Declaration @ 1 28; First Amended Declaration o f Monique Rathbun @ 1 13

and 13a. Drake attested thoroughly that his surveillance and investigative efforts sought:

information concerning (a) crimes or wrongs done or threatened against CSI orother churches o f Scientology, (b) the identity, habits. conduc4 business,occupation, honesty, integrity, credibility, knowledge, activity, m o v m n t ~whereabouts. affiliations, associations, transactions, acts, reputation, or charactero f Rathbun and those associated with him, (c) the location, disposit ion andrecovery o f misappropriated or stolen Property or (d) securing evidence to beused before a court or for complaints to appropriate law enforcement. eeAffidavit o f Monte Drake@ 1 10. See also substantially similaraffidavit o f David Lubow @ 7.

13. The Rathbuns left the constant harassment and electronic surveillance in

Ingleside on the Bay by moving to a secluded homesite in Bulverde, Texas. ee First

Amended Declarat ionofMonique Rathbun@ 11 11 l la , l l c and 14.

14. The move caused the Rathbuns to lose 36,000 in lease/purchase equity in

their Ingleside on the Bay home. ee First Amended Declaration o Monique Rathbun @

11 11, Ia, l l c and 14.

15. In spite o efforts to find a secluded new homesite, Scientology agents

resumed tailing the Rathbuns in Bulverde and San Antonio, Texas, while Mark Rathbun

continued to ''counsel' Scientologists. ee First Amended Declaration o Monique

Rathbun @ 1 1 Sa; Declaration o f Mark Rathbun @ 1 32; The Rathbuns also discovered

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custom-adapted surveillance cameras in the woods behind their home in Bulverde. ee

First Amended Declaration o f Monique Rathbun @ 15, 15a; Declaration o f Mark

Rathbun @ 33. Defendant Sloat answered a phone call from Mark Rathbun using a

number found near the cameras. See Declaration o f Mark Rathbun @ 33. Sloat

acknowledges that he was hired to see who Mark Rathbun ~ w a sseeing (as] lients and

that the object o f [the investigation] was Mark Rathbun's associations and business

dealings. See Affidavit o f Steven Gregory S l o a t @ 5 11 [emphasis added].

16. After Plaintiff moved to Bulverde, Defendants' agents or contractors also

appeared at Plaintiff 's new place o f work and followed Plaintiff t the ladies room, and

the same individual also followed Plaintiff t the grocery store. ee First Amended

Declaration o f Monique Rathbun @ Sa.

17. Plaintiff has demonstrated that she has been personally harmed and injured

as a result o f these activities in both Ingleside on the Bay and Bulverde. ee First

Amended Declaration ofMonique R a t h b u n @ S 7d, 7h, l i b l i e Sa, 16, 16a.

18. O n August 16 2013, the Court issued a Temporary Restraining Order

against the harassment.

19. Plaintiff received counseling nd auditing services from Mark Rathbun.

See Affidavit o f Allan Car twr igh t@, 7 (quoting Mark Rathbun as justification to apply

tenn o f squirrel ). u r t h e r ~Plaintiff and her husband, Mark Rathbun, offered similar

services as a business for which they received monetary compensation. including auditing

services that are purportedly based on the ~ ''tech ( correctly applying Scientology

procedure ) and services offered by the Church o f Scientology ee Affidavit o f John

Allender @ 9 in support o f Defendants' Anti-SLAPP Motion. See Affidavit o f David

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L u b o w @ mf9 and 10. See Affidavit o f Allan Cartwr ight@ , 115 to 8, 10, 13, 15, 17, 23,

27, in support o Defendant CSl s Anti-SLAPP Motion. These business services were

offered n competition to similar goods or services offered by Defendant CSI s and/or its

missions or other affiliates in the Church Scientology. ee Defendant CSI s Motion to

Dismiss @ II 9, cit ing Affidavit o f Allan Cartwright @ mf to 8. See Affidavit o f

Defendant David L u b o w @ '1 10.

20. Both orally and in writing. Defendants have admitted, asserted and argued

that their activitiest directed at and having an effect upon Plaintiff, were connected with .

or in relation to, Mark Rathbun,s alleged involvement in offering unauthorized

Scientology services including auditing using protected Scientology ~ e c h n o l o g yn a

manner not approved by Defendant CSI and profiting from a business using such

services offered from and provided a4 his and Plaintiff s residence in Ingleside on the

Bay and Bulverde, Texas. ee citations in 17 19 above. ee al so Affidavit o f

Monte Drake @ 12. On February 4, 2014, counsel for Defendant CSI argued that the

Rathbun home was a place o business using Scientology practices for a fee that were

allegedly advertised on Craig s List. See Reporter s Transcript 146:22; 147:9; 151 :23;

and 158:6-159:8. Defendant CSI s Counsel implicit ly agreed, and the Court so fmds, that

investigating and protecting the value o th trademarks is a primary function and

responsibility o Defendant CSI as the exclusive licensee o f Defendant RTC s

trademarks. See /d @ 157:14-158:24 Page 2 o f Defendant CSI s Power Point court

presentation (copy attached).

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21. A s Defendant CSI asserts and argues, Mark R a t h b = ' s activity o f offering

Scientology services is a business. If s ~ the Church,s own activity o f offering

Scientology services is also a business.

22. The complained-of activity, which Defendants claim was inpart

documentary making, reporting, and protesting at Mark R a t h b = ' s office, was intended

to and/or did have an effect (be it posit ive o r negative--depending upon perspective) on a

specific audience o f consumers-pr incipally those interested in Scientology

technology, including Scientology members, former members such as Mark Rathbun,

and non-member users o f the technology such as Plaintiff. ee e.g. Affidavit o f Allan

Cartwright @ 11 11 23-24 (Although Cartwright also claims pamphlets were distributed to

ci t izens o f Ingleside, the evidence lacks weight and credibi l i ty due to his lack o f personal

knowledge coupled with the fact tha t no Squirrel Buster attested to such activity.);

Mfidavit o f David L u b o w @ '11'1111-12; Affidavit o f John Allender@ IJ IJ6-9; Declaration

o f Bart P a r r @ 11 11 5, 6, 8, 15; Declaration o f Joanne Whea ton@ '11'1 2-4, 6 10; First

Amended Declaration ofMonique Rathbun@ 'IJ'IJ7, 7a. 7b, 7c, 9, 10, l i d 13, J3a 14;

Declaration o f Mark Rathbun @ 11 11 28-30. Further, n o credible evidence from an un

interested witness indicates an intent by any o f the CSI defendants, collectively, to

genuinely inform the genera l public as their audience. While Scientologist Lubow does

aver that the purpose o f the documentary and protest was to educa te the general public,

he did so only after stat ing that the purpose was primari ly to educate other Scientologists.

ee Affidavit o f David Lubow @ II I I . ee also the substantially similar sentence i n

Declarat ion o f Jolm Allender @ , 6. s to his self serving statements, Allender 's

credibility is suspect in that he admits fil ing a fictitious public document wi th the City o f

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Campbell . California to create a business name for Squirrel Buster Productions.,. Id @

op

23. The primary reason CSI initiated the complained-of activity was to

investigate alleged infringement o f its intellectual property rights by both Mark and

Monique Rathbun allegedly occurring as early as January 29, 2009, i not before. ee

Affiddavit o f Allan Cartwright @ mf 6, 8, 17 and 27. ee Affidavit o Defendant David

Lubow @ II 6 ee a l so Deposit ion o f Monty Drake 52: 16-19 (investigation began in

2007).

24. No evidence indicates that ei ther Defendants CSI o r the Religious

Technology Center has ever sent Mark Rathbun a cease and desist letter or sued Mark o r

Monique Rathbun for infringement o intellectual property rights or any other cause o

action. See Declaration o Mark Rathbun @ 11 11 8 10 Although II 21 o Cartwright 's

Affidavit lists legal cases Mark Rathbun has been allegedly involved in regarding

Scientology in general (not admitted for the truth o the matters asserted), Cartwright

does not, in any o f his testimony, point to any litigation wherein CSI has sued Mark

Rathbun for any cause o action.

CONCLUSIONS OF L AW

. Any o the foregoing findings of fact that may be deemed to const i tute

conclusions o law shal l be so considered and any finding o fact that also constitutes a

conclusion o f law is adopted as a conclusion o law. Any conclusions o law below that

may be deemed to constitute findings o fact shall be so considered and any conclusion o

law that also const i tutes a finding o f fact is adopted as a finding o fact.

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2. Defendants seek dismissal under the Texas Citizen's Participation Act,

Tex. Civ. Prac. Rem. Code 27.001, et a/. (West Supp. 2013) (hereinafter, the

Act ). Under the Act, the Court has an equal duty to safeguard the const i tut ional rights

o f persons to petition,. speak f r e e l y ~associate freely and otherwise participate in

government to the maximum extent by law and, at the same t i m ~protect the r ights o f a

person to file meritorious lawsuits for demonstrable injury. See Tex:.Civ.Prac. Rem.

Co d e 27.002 (West Supp. 2013); Whisenhuntv. Lippincott, No. 06-13-00051-CV, 2013

Tex.App. LEXIS 12489, Slip o p @ 6 n l l (Tex .App.-Texarkana Oct. 9, 20 3,pet .

filed) (acknowledging that the Act has a stated dual purpose and th t courts must give

effect to all words so that none o f the statute's language is treated as s u r p l u s a g e ~ ) .

Further, the Court is required to liberally construe the entirety o f the Act. See

Tex.Civ.Prac. Rem. Code 27.011 (b) (West Supp. 2013).

3. The most efficient and judicious hierarchy o f the mandatory decisions to

be made by a court in applicat ion o f the Act is:

a) Does an exemption, with the burden o f proof resting on thenonmovant, preclude further application o f Chapter 27 pursuant toTex.Civ.Prac. Rem. Co d e 27.010 (West Supp. 2013)?;

4 Although the Act does not expressly assign the burden o f proof on the nonmovant. Texas lawgenerally requires the party seeking benefit o f a statutory exemption to prove the matter. See generally,Mcintyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003) (doetor ' s burden to prove exemption fromemergency care statute). Several Texas Courts o f Appeals around the state have recently applied thisconcept to exemptions in the Act. See Pena v. Perel 417 S.W.3d 552, 555 (E1 Paso 2013, no. pet.);Newspaper Holdings, Inc. v. Crazy Hotel Assi$ted Living Ltd , 416 S.W.3d 71, 88p89 T e x . A p p . ~ H o u s t o n(1 '] 2013, writ fi led Mar. 5 2014) {on rehearing); Better Business Bureau o Metro. Dallas. Inc. v. B HDFW, Inc., 402 S .W.3d2 99 , 309 T e x . A p p . ~ D a l l a s2013, no pet.).

More problematic, h o w e v e r ~is determining the applicable yet legislatively-unspecified standard o fproof required to be shown b y the nonmovant while shouldering that burden. n cases o f exemptions thatare disfavored under the law (such as tax exemptions), the party seeking the exemption must, at trial,clearly show its entitlement thereto. See generally, First Baptist/Amarillo Foundation v Potter Co.Appraisal District, 813 S.W.2d 192, 195 (Tex .App.-Amari l lo 1991, no writ) (Chief Justice Reynoldsnoting standard for fact question o f entitlement to tax empt ion must b e clearly proven.); HammermanGaines, Inc. v. Bullock, 791 S.W.2d 330, n.2 T e x . A p p . ~ A u s t i n1990, no writ) (superseded by statute)(now-Chief Justice Jones citing 1979 Texas Supreme Court rationale for str ict construction o f taxexemptions that must be clearly shown with all doubts resolved against claimant.). Alternatively, other

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b) I f not, 5 is the legal action ~ b a s e don, relates to, o r is in response to aparty's exercise o f the right o f free speech, right to petition, or right o fassociation/ ' with the burden o f proof resting on the movant, pursuantto Tex.Civ.Prac. Rem. Code 27.003 (a) (West Supp. 2013) andapplicable definitions in Tex.Civ.Prac. Rem. Code 27.001 (WestSupp. 2013)?;

c) I f so, can the party bringing the legal action [establish] by clear andspecific evidence a prima facie case for each essential element o f theclaim in question pursuant to Tex.Civ.Prac. Rem. Code 27.005(c) (West Supp. 2013)?; and

d) I f so, can the moving party [establish] by a preponderance o f theevidence each essential element o f a valid defense to the nonmovantsclaim pursuant to Tex.Civ.Prac. Rem. Code 27.005 (d) (WestSupp. 2013 of

si tuations merit characterization o an exemption (or a n exception) as an affirmative defense wherein thelesser standard o p ro o f o a preponderance o evidence is utilized. See Pedigo v. Austin Rumba. Inc., 722F.Supp.2d 714, 722-24 (W.D.Tex. 2010) (Noting. as in the instant statute, the absence of legis lat ive intentto divert from the general rule, Juslice Nowlin cites 1974 U.S. Supreme Court authority generally holdingthat exemption under Fair Labor and Standards Act is an cif}irm tive defense and c i tes 1995 NorthernDistr ict o Texas authority requiring similar exemptions to be proven, at t rial , by a preponderance o heevidence. .

Since the legislatw'e did not evidence an intent to divert from the U.S. Supreme Court ' s generalrule and the stated purpose o the A


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4. Based upon the findings o fact, 7 the Court concludes that a preponderance

o f the evidence demonstrates that CSI and i ts agents are primarily engaged in the

business o f sell ing o r leasing goods or services consistent with the intent and meaning o

Tex.Civ.Prac. Rem. Code 27.010 (b) (West Supp. 2013). Other courts have made

similar findings and the result ing conclusions. See e .g . Hernandez v Comm r, 490 U.S.

680, 681, 685 (1989) (On f indings that: Th e Church charges a ' f ixed donation, ' also

known as a 'p r ice ' or a ' ftx:ed contr ibut ion, ' for part icipants to gain access to audit ing and

t raining sessions. These charges are set forth in schedules, and prices vary with a

session 's length and level o sophist icat ion: , th Supreme Court upheld the conclusion

that payments. which are the primary source o f income to missions, branches and

franchises o f the mother church, by Scientology patrons were not deductible

contr ibut ions due to receipt o considerat ion and benefits.); i at 692 (concluding that the

church .. categorical ly barred provision o f audit ing o r training sessions for free ); The

Founding Church o f Scientology o f Washington D.C. v. United States 409 F.2d 1146,

1159 (D.C. Cir. 1969) ( Within this literature is to be found only the most occasional

passing reference to the E meter; more often than not, the meter is not even mentioned in

these general works. Among these are the introductory works describing Scientology, and

it is presumably these works, i f any, which are pressed upon curious members o the

public in any effort which might be made to promote the sale o f Scientology services. ').

Accordingly, the evidence sufficiently establishes Scientology is primarily in business to

sell a good or service-----be it rel igious or otherwise.

7 For the purpose o f evaluating the evidence in support o f an exempt ion , 27.010 o the Tcx.Civ.Prac.Rem. Code (West Supp. 2013) does not require that the evidence considered be ~ c l e rand specific' as theAct does in 27.005 (c) for the purpose establishing a piima facie case for each essential element o f theclaim in question. Thus. the Act docs not preclude the Court. as to the exemption issues, from makingreasonable inferences and ded.l.lCtions from the evidence admitted.

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5 . Based upon the findings o f fact supported in-part by the Defendants ' and

movaots' test imony by Allender, Lubow, Cartwright and others, the Court concludes that

a preponderance o f the evidence demonstrates that the l i t igated conduct [arose] out o f

the sale o f goods, services, o r a commercial transactionn consistent with the

intent and meaning ofTex.Civ.Prac . Rem. C o d e 27.010 (b) (West Supp. 2013). As

investigator and avowed Scientologist David Lubow put it, ' Rathbun was engaged in

delivering Scientology services nd counseling at his office/home, for c o m p e n s a t i o ~

even though he h ad been expelled from the religion and possessed no religious authority

to provide Scientology services to anyone. Affidavit o f David Lubow @ 1 9. See also

Affidavit o f Monty Drake @ II 12. The Legal Director for CSI ' s Office o f Special

Affairs Allan Cartwright testified that:

The Rathbuns [ M a r k ~ sand Monique's] unauthorized counse ling practice [forhis u lndependent S c i e n t o l o g y ~services which is h o w h e earns his living] wasan immediate cause for concein (for those] charged with the protection o theScientology religion, all churches o f Scientology as well as these [sic] intellectualproperties nd the enforcement o f csr rights. This was a primary reason forcsrs decision to have counsel retain an investigator to help determine the natureand extent o f any possible infringements. Affidav it of Allao Cartwright @ 11 11 15

17.

But for the preponderate evidence o f Defendant CSI' s apprehension o f intellectual

property rights violations by fanner 20-plus year Scientology employee and now-

competitor Mark Rathbun nd his alleged sale o f unauthorized Scientology services, the

extensive-type o f commercial piracy investigation such as that declared by Drake and/or

Lubow, instigated as early as 2007, to protect CSI ' s primary business interests would

clearly not have occurred. See generally, Kinney. supra Slip op. @ 2 Memorandum

opinion) (general recitation o f reasoning o f CalifOrnia c ourt, in prior related litigation,

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regarding former employer a s a current competitor o f former employee and was

therefore exempt from [California] anti-SLAPP statute. ).

6. Based upon the f indings o f fact, the Court concludes that a preponderance

o f he evidence demonstrates that the majori ty o f the conduct and statements about which

Plaintiff complains was, by Defendants' own admissions ( in-part , testimony o f David

Lubow, John Allender, and Richard Hirst), intended to communicate to and to affect an

audience o f actual o r interested potent ial (current or former) customers o f the Church's

own sale o f services the Church 's displeasure with the competit ive commercial activities

o f Plaintiff and her husband. The evidence also preponderates in favor o f the conclusion

that the Squirrel Buster act ivi ty was -primarily designed to convey the message to other

Scientologist tha t the Rathbuns should stop being squirrels ' '--Qne who al ters standard

Scientology practice and delivers al tered Scientology counsel ing. ee Affidavit o f David

Lubow @ II If I I Tbe record is replete witb evidence showing it was CSI wbo

designed, initiated and funded both the investigations and the Squirrel Busters to

communicate chiefly to Scientology buyers and customers that the Rathbuns were;

offering a basterdized version o f Scientology to former members, nd seeking toentice parishioners to leave the faith with fulse assertions that his brand o f socal led Scientology w s more correct than standard Scientology delivered i nchurches. Affidavit o f David L u b o w @ II 10.

CSI's message to i ts consumers, by and tbrough its conduct nd statements, being, Pay

us for del ivering the good or se rv i ce -no t Rathbun. ' ' Further, the evidence also

sufficient ly estab l ishes that the ~ c o m m u n i c a t i o n - t h eextensive invest igat ions coupled

with the confrontat ional Squirrel Buster tactics, in fact, did reach and did affect some

individuals within its intended audience in one way o r another, including but not limited

to Plaintiff; Mark Rathbun, Mike Rimier, John Brousseau, Michael Fairman, Stephen

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Hall, David Lingenfel ter, Mercy Lingenfel ter, Mark a.k.a. M a t Pesch, Amy Scobee, and

Debbie Jean Cook as well as Allan Cartwright, Joanne Wheaton, Richard Hirst, David

Lubow, John Allender, and E d Bryan.

7. s such, Defendants' motions are precluded by the provision of the Texas

Citizen,s Participation Act exempting from reach o f the statute legal actions brought

against persons ' 'primarily engaged n the business o f selling or leasing goods or services,

i f the statement o r conduct arises out ~ th e 8 sale o r lease o f goods, services, or a

conunercial t ransact ion in which the intended audience is an actual or potent ial buyer or

customer. Tex. Civ. Prac. Rem. C o d e 27.010(b) (West Supp. 2013).

8. Additionally or altematively, the Court concludes that a preponderance o f the

evidence demonstrates that the complained-of act ions caused Plaintiff bodily injury as

defined by Texas law. ~ B o d i l yinjury includes uphysical pain, illness, or any

impairment o f physical condition. Tex. Penal Code 1.07(8) (West Supp. 2013). In

Zurich American Ins. Co. v Nokia, Incorp., 268 S.W.3d 487, 492 (Tex. 2008), then-Chief

Just ice Wallace Jefferson wrote for the Court and e l d ~without regard to the merits, that

biological injuries o r effects [qualified] as bodily injury, from a pleading construct n

an insurance duty-to-defend case. While the Court noted that the ~ ~ b o d i l yinjury

definition unambiguously requires an injury to the physical structure o f the human

body, id citing Trinity Universal Ins. Co. v Cowan, 945 S.W.2d 819, 823 (Tex. 1997),

it l ikened and found sufficient allegations that 'radio frequency radiation causes an

8 Defendant CSI argues this provision requires that it. c s r must have been the person (or entity) t havesold or leased 'the . good or service from which lhe litigated statement or conduct flowed. T o apply such aconstruct would necessarily limit appJication o f the Act to being a one-way street. Applying the Act nsuch a fashion inherently gives a preference to the one party over another which would be contrary to thestated purpose o f the Act that a court balance the respective rights o f the litigants and would be contrary tothe premises o f standard statutory construction as stated by the Third Court o f Appeals n its recentconsideration o f the Act. Kinney v. BCG Attorney Search Inc No. 0 3 ~ 1 2 - 0 5 7 9 - C V ,Slip op. @ 3(Tex .App.-Aust in , Aug. 21, 2013, pet. ) Memorandum Op.) (citations omitted).

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adverse cellular reaction and/or cellular dysfunction ('biological injury ') to allegations

of ~ s u b c l i n i c a ltissue damage that results on inhalation o f a toxic substance such as

asbestos. Zurich supra 492-93 (quoting Guar. Nat / Ins. Co. v Azrock Indus. Inc.

211 F.3d 239, 245, 250 (5' Cir. 2000)).

9. The definition o f bodily injury is broad enough to cover [a]ny physical pain,

however minor. Garcia v State, 361 S.W.3d 683, 688 (Tex.Crim.App. 2012) cit ing

Laster v. State, 215 S.W.3d 512, 524 (Tex.Crim.App. 2009). n Garcia, supra, the Court

noted as to the merits that a fact finder may infer that a victim actually felt or suffered

physical pain because people o common intelligence understand pain and some o the

natural causes o it.'' d Taking instruction r o ~both the Supreme Court s nd Court o f

Criminal Appeals respective pleading and merits decisions on what qualifies as ubodily

injury,'' the exception embodied in 27.010 (c) is not, as suggested n CSI s

Supplemental Memorandum in Support o f Anti-SLAPP Motion at - { 10, restricted to

claims arising directly from a trawnatic event. Rather, the definition is broad enough to

include claims supported by sufficient evidence demonstrating physical martifestations o f

pain, anxiety, emotional distress, stress, illness or other impairment o f condition

regardless o the mechanism o injury.

10. Plaintiff sufficiently established by a preponderance o f the evidence that

she suffered stress, anxiety and fear that resulted in severe headaches, including

migraines with debilitating pain due to the surveillance o investigators and Squirrel

Busters--she further attested that as a result o these activities she suffered an extreme

gagging nausea, nd Plaintiff averred she developed a hyper-sensitivity to light and was

Wlable to eat or concentrate due to the headaches. See e.g. Declaration o Monique

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Rath b u n @ ll ll7d, l l c l i d 15a 16a. Accordingly, Defendants ' motions are precluded

by the provision o f the Texas Citizen?s Participation Act exempting from the reach o f the

statute legal action[s] seeking recovery for bodily injury.' Tex.Civ.Prac. Rem. Code

27.010 (c) (West Supp. 2013).

11. Assuming solely for tbe sake o f argument that neither the commercial

exemption nor the bodily injury exemption preclude application o f the Act, the Court will

address as succinct ly as possible the pert inence o f whether Plaintiff 's legal action is

based on, relate to, or are in response to Defendants ' exercise o f the right o f free speech,

right to petition, or right o f association. ee Tex.Civ.Prac. Rem. Code 27.003 (a)

(West. Supp. 2013). Following the granunatical syntax and structure o f this statute, no

party to this l i t igat ion disputes that the current dispute is a legal act ion. Next , the focus

is whether that act ion i s based on, relates to, or is in response to ' ' e f e n d a n t s ~freedoms

o f expression. f ~ did the Defendants meet their burden o f p ro o f regarding the

exercise o f the right o f free speech, right to petition, o r right o f associationn as defined

by 27.001, Tex.Civ.Prac. Rem. Code (WesL Supp. 2013)? Th en and only then

would a court need to go further in the analysis regarding the adequacy o f the

nonmovants' proof on the essential elements, etc. See generally Conclusion o f a w ~

3.

12. Regardless o f the merits o f her claims seeking damages in tort for personal

injury? Plaintiff 's pleadings sufficiently and legally allege common law tort causes o f

action, in-part, for bodily injury. t has been said that one person 's rights end where

another's nose beg ins-mean ing . in the converse, that the farther and farther one intrudes

into the space o f another, the more diminished are the rights o f the intruder. So too is it

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tort liability and precluded recovery o f the jury verdict on such common law torts by the

fallen marine s family. Snyder supra@ 1220.

15. Several salient points arise from Snyder: a) the necessary balance o f the

rights in question was determined post-discovery, post-trial and post-verdict; b) Chief

Just ice Roberts explici t ly expressed the narrowness o f the C ourt s ruling noting certain

inapplicable exceptions due to the instant facts; and c) Justice Breyer wrote s e p r t e l y ~

concurring, to emphasize that the effect o f the majority opinion was to be restricted to the

matter before the C o u r t - t h e picketing at-hand. See generally Snyder s u p r a @ 1217-

21

16. Stifling sufficiently pleaded causes o f action alleging tortuous conduct and

seeking personal injury damages, prior to d isco v ery -p r io r to t r i a l p r i o r to verdict, on

th extremely broad or outside chance that the competing interests are ubased on, related

to or in response t o , s ome form o freedom o f expression would have a chil l ing effect on

potentially meritorious litigation whereby the end might. all too easily, unjustifiably

control the means. What then to avoid such an absurd effect upon the balance o f the

rights o f all litigants? Otherwise stated. how might our jurisprudence adequately achieve

the proper balance between the rights granted under both the First and Seventh

Amendments? Considering Chief Justice RoberCs methodology in Snyder supra and

heeding Justice Breyer s admonition on the limited effect o f th majority opinion

factually. prudence dictates that this Court examines th instant record to ascertain

potential applicability o f the important exceptions that th Chief Justice noted were not

factually in-play in Snyder. I f th record reveals a bona f ide situation or circumstance,

i.e. is there a genuine fact quest ion or not wherein any o f the potential exceptions noted

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by the Chief Just ice might be in-play here, Plaintiff 's Seventh Amendment Right to a jury

trial, i.e. the means cannot, prior to d isco v ery -p r io r to tr ial--prior to verdict , be

preemptively overridden by the Defendants' First Amendment Rights to freedom o f

expression, i.e. the end. See generally Snyder s u p r a @ 1215 f ~ r e eSpeech Clause o f

the First Amendment . . . can serve as a defense in state tort s u i t s - i t goes without debate

that a udefense is asserted only after a Plaintiff is allowed the opportunity to present her

case factual ly to a jury) [emphasis added].

17. For the l imited purpose o f this inquiry, the Court presumes that the

Defendants' expressions o f speech, petition and association e r e ~to the extent necessary,

public in nature. The first exclusion from First Amendment protections noted by Chief

Just ice Roberts i s speech that is either obscene o r likely to inci te a fight. Snyder supra

n.3. Plaintiff has alleged and factual ly asserted publication by Defendants o f bizarre

and vile statements about her. First Amended Declarat ion o f Monique Rathbun f

12. Both parties have asserted that the other sought to pick fights w ith one another

during the mult iple confrontat ions at issue, and Defendants hired a body guard or

muscle'' due to their apprehension o f Mark Rathbun 's alleged propensi t ies for violence.

18. Another potent ial exception noted by the Chief Just ice i s speech, which

al though given a public label a t :t-.rst blush, is determined to be contrived to insulate

from liability on a t ruly private issue. Snyder. supra@ 1217. Clearly at issue here and

yet to be de termined subsequent to discovery, etc. is the extent to which the freedoms

monique rathbun v. scientology: lubow appeal

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