Case 8:13-cv-00220-JDW-TBM Document 106 Filed 04/07/14 Page 1 of 7 PageID 2542

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

LUIS GARCIA, and wife, MARIA DEL ROCIO BURGOS GARCIA, Plaintiffs, vs. CHURCH OF SCIENTOLOGY RELIGIOUS TRUST; et al. , Defendants.

Case No. 8:13-CV-220-T27 TBM

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PLAINTIFF8 RENEWED MOTION TO AMEND COMPLAINT AND MEMORANDUM OF LAW

COMES NOW, Plaintiffs, by and through the undersigned counsels, upon this Motion to Amend Complaint, pursuant to Fl. R. Civ. P. 15(a)(2), and in support hereof states as follows:
BACKGROUND

Relevant procedural posture 1. Plaintiffs, both residents of California, initially filed their Complaint in the subject matter

on January 23 , 2013 . 2. Plaintiffs now seek leave to amend said Complaint based upon information that has been

learned throughout the process of discovery in this matter to date. 1 3. Plaintiffs have filed suit in this Court against the Church of Scientology Religious Trust,

U.S. lAS Members Trust, Church of Scientology Flag Service Organization, Inc. ("FLAG"), and

Plaintiffs initially filed this Motion on March 26, 2014 . Plaintiffs now re-file this Motion at the direction of this Court's Order of March 31 , 2014, D.E. I 05 , wherein this Court denied Plaintiffs ' Motion without prejudice tore-file same upon compliance with this Court' s Order.
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the Church of Scientology Flag Ship Service Organization, Inc. , d/b/a Majestic Cruise Lines, and lAS Administrations, Inc., basing jurisdiction upon the diversity of citizenship of the parties. 4. Defendants Church of Scientology Religious Trust ("CSRT"), U.S. lAS Members Trust

("USIMT"), and lAS Administrations, Inc. ("IASA"), subsequently challenged Plaintiffs' contention regarding jurisdiction, filing a Motion to Dismiss for Lack of Subject Matter Jurisdiction on October 21, 2013 , approximately 9 months after Plaintiffs initially filed suit. Defendants specifically alleged that complete diversity was destroyed by virtue of the California residences of all trustees ofthe USIMT, CSRT, and the IASA. 5. This Court subsequently ordered discovery regarding the matter of diversity jurisdiction,

which is now complete, and as a result of recently verified information regarding same, this Motion to Amend Complaint is filed, seeking amendment to remove Defendants USIMT, CSRT and IASA from the subject suit.
LEGAL SUMMARY

Diversity Jurisdiction and Dispensable Non-Diverse Parties 6. Federal jurisdiction is determined based upon the facts as they existed at the time the

complaint was filed. 7. Commonly referred to as the time-of-filing rule, jurisdiction premised upon diversity of

citizenship requires that each plaintiff be diverse from each defendant. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 109 S. Ct. 2218 (1989). 8. "The time of filing rule has one well-established exception. A district comi can dismiss a

dispensable non-diverse party pursuant to Fed. R. Civ. P. 21 , to cure a jurisdictional defect at any point in the litigation . .. " Ravenswood Investment Company, L.P. v. Avalon Correctional Services, et al. , 651 F.3d 1219 (10 1h Cir. 2011) (emphasis added) , citing Grupo Dataflux v. Atlas

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Global Grp., L.P. 541 U.S . 567,572, 124 S. Ct. 1920, 158 L.Ed. 2d 866 (2004); Newman-Green, Inc., 490 U.S. at 832; United States ex rei. Gen. Rock & Sand Corp. v. Chuska Dev. Corp., 55 F. 3d 1491 , 1495 (10 1h Cir. 1995); see also Fed. R. Civ. P. 21 ("On motion or on its own, the court may at any time, on just terms, add or drop a party.").

Amending the Complaint

9. Generally, the law favors liberal amendment of a petitioner' s complaint such that if the

"underlying facts or circumstances relied upon by plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182, ( 1962). Such favoritism facilitates "determination of claims on the merits" and is aimed to "prevent litigation from becoming a technical exercise in the fine points of pleading." Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598, (5th Cir. 1981). 10. Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleadings

by leave of court, or by written consent of the adverse party, and the court should "freely give

leave" to amend a complaint "when justice so requires." See Fed. R. Civ. P. 15(a)(2) (emphasis added).
11. "In the absence of any apparent or declared reason-such as undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previous allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -the leave sought should, as the rules require, by "freely given." Foman, 371 U.S. at 182. 12. "Thus, the Court is constrained to allow a plaintiff leave to amend unless there is

substantial countervailing reason. " Grayson v. K Mart Corp., 79 F.3d 1086, 1110, (11th Cir. 1996).

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ARGUMENT 13. Plaintiffs initial Complaint alleged that Defendants' acted collectively to obtain and

retain payments of funds from Plaintiffs through a variety of illegal acts and contrivances. 14. Upon completion of recent discovery, however, Plaintiffs believe FLAG to be the

defendant that has spearheaded all activities relating to the other entities which have given rise to this suit to wit, and rendering Defendants USIMT, CSRT and IASA dispensable parties: 2 a. Plaintiffs' donations to Super Power were made after multiple solicitations by

representatives of FLAG. b. Plaintiffs donations to Super Power and to benefit the operations of lAS were

made in connection with FLAG, FLAG representatives, and/or while present at FLAG facilities. c. Plaintiffs were never informed that CSRT and USIMT were distinct entities with

any purpose other than to carry out the purposes taught at FLAG. 15. Plaintiffs have brought this Motion in good faith and as soon as practical in light of

recent discovery. Although Defendants must have been aware of the status of the trustees associated with CSRT and USIMT since the commencement of suit, Plaintiffs were not, and could not have been similarly aware of same prior to recently conducted discovery. Defendants waited until this suit had been pending for 9 months, just as this Court was poised to rule on arbitration in this matter, to raise the concern regarding jurisdiction. This Court and the parties have expended much time and resources in the last 9 months in this litigation, and in the interest of justice, Plaintiffs respectfully assert that they are entitled to the equitable relief sought herein. Should Plaintiff be allowed to amend their motion, this Court can proceed with its ruling regarding arbitration, a matter at the heart of Plaintiffs' claim for relief, after having

A copy of Plaintiffs ' Proposed Amended Complaint and Demand for Jury Trial is attached hereto as Exhibit A.
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deferred ruling regarding same pending the outcome of matters related to jurisdiction. Plaintiffs have brought and litigated this suit in good faith and should not suffer unjust consequences based on Defendants ' intentional delay that is characteristic of their litigation tactics to date- tactics aimed at barring Scientologists from obtaining equitable and just relief at the hands of the nation' s judicial system. WHEREFORE, Plaintiffs respectfully request that the foregoing Motion be granted, affording Plaintiff the opportunity to serve an Amended Complaint dispensing with Defendants USIMT, CSRT, and IASA.

COMPLIANCE WITH RULE 3.01(g)

The undersigned certifies that Plaintiffs have conferred with Defendants ' counsel in a good faith effurt to resolve the issues raised by this Motion. Defendants object to both Plaintiffs' Motion to Amend Complaint, as well as Plaintiffs ' Proposed Amended Complaint. Dated : April 7, 2014 Respectfully submitted, /s/_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Theodore Babbitt, Esq. Florida Bar No: 091146 Babbitt Johnson Osborne & LeClainche, P.A. 1641 Worthington Road, Suite 100 West Palm Beach, FL 33409 Phone: 561-684-2500 Fax: 561-684-6308 tedbabbitt@ babbitt-johnson.com -and-

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Ronald P. Wei!, Esq. Florida Bar No: 169966 Amanda M. McGovern Florida Bar No: 964263 Weil Quaranta McGovern, P.A. Southeast Financial Center, Suite 900 200 South Biscayne Blvd. Miami, FL 33131 Phone: 305-372-5352 Fax: 305-372-5355 RPW@weillaw.net amcgovern@weillaw.net Counsel for Plaintiffs Luis A. Garcia Saz and Maria Del Rocio Burgos Garcia

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CERTIFICATE OF SERVICE
We hereby certify that, on April 7, 2014, we electronically filed the foregoing document with the Clerk of the Court using CM/ECF. We also certify that the foregoing document is being served this day on all counsel or pro se parties identified below in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filings.

F. Wallace Pope, Jr. , Esq. FBN 124449 Johnson Pope Bokor Ruppel & Bums, LLP 911 Chestnut Street Clearwater, FL 33757 Phone: (727) 461-1818 Fax: (727) 462-0365 E-mail: wallyp@ipfirm.com Counsel for Flag Church & Ship Church Of Counsel: Eric Lieberman Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. Suite 1700 45 Broadway New York, NY 10006 (212) 254-1111 Marie Tomassi, Esq. FBN 772062 Trenam Kember Scharf Barkin Frye O'Neill & Mullis, P.A. Bank of America Building 200 Central A venue, Suite 1600 St. Petersburg, FL 33701 Phone: (727) 820-3952 Fax: (727) 820-3972 E-mail: mtomassi@trenam.com Counsel for lAS Administrations, Inc. And U.S. lAS Members Trust
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Nathan M. Berman, Esq. FBN 329230 E-mail: nberman@zuckerman.com Lee Fugate, Esq. FBN 170928 E-mail: lfugate@zuckerman.com Jack E. Fernandez, Esq. FBN 843751 E-mail: jfemandez@zuckerman.com Mamie V. Wise, Esq. FBN 65570 E-mail: mwise@zuckerman.com Zuckerman Spaeder, LLP 101 E. Kennedy Blvd., Suite 1200 Tampa, FL 33602 Phone: (813) 221-1010 Fax: (813) 223-7961 Counsel for Church of Scientology Religious Trust