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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION Case No: 8:12-cv-2477-T-33EAS KENNAN G. DANDAR, and DANDAR & DANDAR, P.A., Plaintiffs, v. CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., F. WALLACE WALLY POPE, JR., JOHNSON POPE BOKOR RUPPEL & BURNS L.L.P., and DAVID MISCAVIGE Defendants. ______________________________________/ PLAINTIFFS VERIFIED AMENDED MOTION FOR EMERGENCY PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW Pursuant to Rule 65, Fed. R. Civ. P., and Local Rule 4.06, and the newly filed First Amended Complaint, [Dkt 24], Plaintiffs seek issuance of a preliminary injunction in this 42 U.S.C.1983, 1985, and 1986 case against all Defendants, including their employees, agents, attorneys, and all persons and entities in active concert and participation with Defendants: To prohibit Defendants, acting under color of state law, from proceeding to any hearing, including the one scheduled on November 26, 2012, before the state court, and any hearing or filing any pleading in state court against Plaintiffs to obtain any further state order and/or state judgment against Plaintiffs, or to execute on any state court judgment, until this court has addressed the Defendants violations of 42 U.S.C.1983, as alleged in the Amended Complaint filed herein, including any appeal thereof. FACTS Plaintiffs enjoy rights under the U.S. Constitution of freedom of association, freedom of speech, liberty and property interest in their employment and livelihood, and due process under the Fifth, Sixth and Fourteenth Amendments. State action, by use of the state court system and state judges, cannot be employed by Defendants to deprive Plaintiffs of these rights while Plaintiffs are

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engaged in lawful conduct. Plaintiffs incorporate their newly filed First Amended Complaint herein. After Judge Merrydays injunction was reversed on appeal, Judge Merryday reluctantly granted the motion to withdraw. Judge Beach recused himself, and another Senior Judge, Crocket Farnell, took over the closed McPherson case, without any record assignment.1 The following significant points of fact demonstrate a clear violation of Plaintiffs constitutionally guaranteed federal rights under the Bill of Rights by use of coercive governmental power as part of the agreement or conspiracy Defendants obtained with the state court, acting arbitrarily and capriciously, without due process, by Defendant state actors: 1. Plaintiffs were never on notice by court order that they would be held bound by the

CSA which they never signed as a party in their individual capacities, as set forth in the Amended Complaint filed herein. If the CSA is governed by Floridas mediation rules of civil procedure, Florida law holds that in order to impose sanctions, consisting of attorney fees and costs, the person upon whom the sanctions are being imposed must (1) be a party in the case; (2) the party was courtordered to mediate; (3) the party must sign the mediation agreement; (4) the case must be pending; and (5), the breach must be an executory part of the agreement and not concerning something outside of the pending case. There are no exceptions. The Florida state courts ignored Florida law in deprivation of Plaintiffs guaranteed rights under the Bill of Rights, effecting their livelihood. Plaintiffs were not on notice that state courts would violate Judicial Canons 2A and 3D(2). Plaintiffs were not on notice that Rule 1.730( c), Fla. R. Civ. P., could be used by a court, with or without subject matter jurisdiction, as a punitive criminal contempt sanction for violation of a mediation

The closed McPherson case was randomly assigned to an active Circuit Court Judge, but mysteriously, it was reassigned to senior judge Crocket Farnell, who has maintained the secrecy of the proceedings over Dandars objections. See argument herein on how this is not proper procedure. Page 2 of 25

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agreement, when Plaintiffs were not parties in the case, especially since none of the other required conditions stated above are present. 2. Plaintiffs have been denied due process, service of process, public hearings, open

court files, and a final public trial in this closed-case, motion practice, in a sealed proceeding, all of which are in direct violation of Florida law. 3. There existed no prior state court order giving Plaintiffs notice enforcing a practice

restriction against Plaintiffs before Plaintiffs filed the Brennan case, and no notice of retroactive application. 4. Plaintiffs were not on notice that a court lacking subject matter jurisdiction would

entertain a motion filed in the McPherson case after it had been dismissed with prejudice without a court-ordered reservation of jurisdiction to enforce the terms of the settlement agreement, when Florida law is clear that a new suit must be filed under such circumstances. 5. Plaintiff was not on notice that the Defendants could choose their preferred judge

instead of the required random rotation. 6. Plaintiffs were never on notice that Defendants could obtain injunctive relief by way

of court order forcing Plaintiffs to withdraw from the Brennan case, and then also recover damages, when Florida law is clear that only one remedy, through the doctrine of election of remedies, is available. 7. Plaintiffs were never on notice that Defendants could grossly multiply proceedings

in state court lacking subject matter jurisdiction, as well as the Brennan federal court, by filing multiple motions and having multiple hearings, when all that was necessary was to file a simple motion to disqualify in the Brennan federal court, as Judge Merryday opined, without punitive monetary damages, severely and grossly exceeding the scope of Rule 1.730 ( c), Page 3 of 25

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8.

By the Florida state courts ignoring state law, the Defendants retaliated against the

Plaintiffs for exercising Plaintiffs rights protected by the U.S. Constitution. Plaintiffs were never on notice that Defendants, through the state court, could obtain civil and criminal contempt sanctions when Plaintiffs not only had no opportunity to purge, but were in compliance with federal court orders, the local federal rules of court, and the ethical mandates of the Rules Regulating the Florida Bar. 9. Plaintiffs have rights guaranteed under the U.S. Constitution which cannot be

abridged without procedural and substantive due process of law through the Fifth and Fourteenth Amendment, through coercive governmental power of the state courts which are arbitrary and capricious. Those rights include, but are not limited to, the right of free speech, the right of association, the right to open and public hearings and trials, and the liberty and property rights in business reputation and goodwill, employment, and livelihood. Notice required under due process was not present when a dismissed state civil action was reactivated by simply filing a motion when the terms of dismissal contained no such power; and the basis for the Defendants request for not coercive but punitive, excessive, unfair sanctions exceeding one million dollars are out of all proportion to the perceived harm without providing the Plaintiffs the full panoply of procedural safeguards required before civil contempt is converted to criminal contempt. 10. Plaintiffs had no opportunity to comply with a state court order demanding

withdrawal from Brennan, an order issued by a state court without subject matter jurisdiction, once the federal suit was filed, until the federal court granted the motion. The granting of the motion was impossible since substituted counsel was not found. The Plaintiffs represented an estate, and therefore, the Florida Probate Code, the Local Rules of the Middle District, and the Rules Regulating Page 4 of 25

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the Florida Bar require that the estate be represented by counsel. Plaintiff was not on notice that the state court would order the intentional violation of these Rules and ethical obligations. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION I. Parallel Proceedings are Permitted This action is not barred by the fact that there are ongoing state court proceedings. The state court matter has not ended, whether or not it is completely without subject matter jurisdiction, even though there have been two completed appeals resulting in per curiam affirmances; the first judge recused himself; there is a pending appeal to the 2nd DCA by Dandar, which the 2nd DCA dismissed stating that the last order entered was not a final appealable order; and there is a final hearing in the closed-to-the-public Clearwater courtroom set for November 26, 2012. Florida law recognizes that the state court proceeding, assuming subject matter jurisdiction, is not at an end because even after entry of a final judgment following the November 26, 2012 hearing, the entire matter is then ripe for appellate review on all issues under the doctrine of manifest injustice. Delta Property

Management v. Profile Investments, Inc., 87 So.3d 765 (Fla. 2012); VLX Properties, Inc. v. Southern States Utilities, Inc., 792 So.2d 504, 507 (Fla. 5th DCA 2001). This 1983 action challenges the state orders as they were entered under false pretenses, fraud, and wrongful acts of the Defendants, and all state proceedings in both the circuit and district courts were sealed, closed proceedings. The prior appeals resulting only in a per curium affirmances are of no significance under state law. As explained in Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000), where no final judgment has been entered in the Florida state court, plaintiffs are not barred from bringing constitutional challenges to the order. In Battle v. Liberty Nat. Life Ins. Co., 877 F.2d 877 (11th Cir. 1989), the court recognized that the Full Faith and Credit Act requires that a federal court give preclusive effect Page 5 of 25

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to a state court judgment to the same extent as would courts of the state in which the judgment was entered. First Alabama Bank of Montgomery v. Parsons Steel, Inc., 825 F. 2d 1475 ( 11th Cir. 1987), cert. denied sub nom. McGregor v. First Alabama Bank of Montgomery, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 980 (1988); Cable Holdings of Battlefield, Inc. v. Cooke, 764 F.2d 1466, 1473 (11th Cir.1985). See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984) (holding that under the Full Faith and Credit Act, a federal court must give the same preclusive effect to a state court judgment as another court of that state would give). However, Florida courts do not give any precedential value to the subject appellate decisions, which are commonly referred to as PCA decisions. The decision of the Florida Second District Court of Appeal was a per curiam affirmed without opinion, thus, has no precedential value. Department of Legal Affairs v. District Court of Appeal, 5th Dist., 434 So.2d 310, 311 (Fla. 1983) (a per curiam decision without opinion does not establish any point of law; and there is no presumption that the affirmance was on the merits). A per curiam affirmance without opinion does not bind the appellate court in another case to accept the conclusion of law on which the decision of the lower court was based. Id. at 312. Likewise, the PCAs have no binding affect on this court. The Siegel court also stated that for similar reasons, neither res judicata nor collateral estoppel bars the courts consideration of the issue of the constitutionality of the state court orders. This court is to look to Florida law to determine the application of preclusive doctrines. Florida adheres to the traditional requirement of mutuality of parties in its application of res judicata. See Albrecht v. State of Florida, 444 So.2d 8, 11 (Fla.1984); State Street Bank & Trust Co. v. Badra, 765 So.2d 251, 253 (Fla. 4th DCA 2000) (citing Youngblood v. Taylor, 89 So.2d 503, 505 (Fla.1956)). Florida similarly requires mutuality of parties in the application of collateral estoppel. See Stogniew v. McQueen, 656 So.2d 917, 91920 (Fla.1995). Further, the doctrine of collateral Page 6 of 25

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estoppel bars identical parties from relitigating only those issues that have previously been decided between them. See Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977). In Siegel, the court noted that the parties to the case are not the same parties that appeared before the Florida Supreme Court in another case, thus neither doctrine applied. Here, Brennan did not involve the same parties before this court, thus neither preclusive doctrine applies here. Further, the state court has not entered a final judgment to which full faith and credit is to be afforded, and the 11th Circuit in Brennan erred in considering the state order to be a judgment. Now that this 1983 action has been filed before the state proceedings have ended, this court may render its own decision on the 1983, 1985, and 1986 claim. Nicholson v. Shafe, 558 F.3d 1266, 1274 (11th Cir. 2009) (We hold that, in light of Exxon-Mobil, state proceedings have not ended for purposes of Rooker-Feldman when an appeal from a state court judgment remains pending in state court at the time that the state court loser commences the federal court action.) Therefore, this court is not acting as an appellate court of the state case. Under Exxon-Mobil,2 the RookerFeldman federal bar due to lack of subject matter jurisdiction does not apply if the federal action was commenced before the state court case came to a complete end, which includes exhausting all appeals. Therefore, this federal action can proceed in parallel with ongoing state-court litigation. With parallel federal proceedings, this court may adjudicate under 42 U.S.C.1983 whether the rights guaranteed under the U.S. Constitution have been violated by Defendants in a closed-to-thepublic courtroom in Clearwater, Florida, for the reasons expressed below.

Exxon-Mobil Corporation v. Saudi Basic Industries Corporation, 544 U.S.280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).

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II.

Acting under Color of Law The Fourteenth Amendment subjects the states and state actors, i.e., private persons acting

under color of state law, to liability for violation of rights protected under the U.S. Constitution. See McCreary County, Ky. v. ACLU of Kentucky, 545 U.S. 844, 853 n.3 (2005); Santa Fe Independent School District v. Doe, 530 U.S. 290, 301 (2000). Where an official act of a state court judge was the product of an agreement or conspiracy involving the state court judge with a private party, such as the Defendants, then this is indeed acting under color of state law and it is has no consequence that the state court judge may in fact be immure or not joined in as a party. Dennis v. Sparks, 449 U.S. 24, 27-29 (1980) (such conduct stands a motion to dismiss even if the complaint does not allege that defendants were acting under color of state law). If a private actor enters into an agreement with any state official to deprive a party of a constitutional right then there is liability under 1983. Id.; Tower v. Glover, 467 U.S. 914 (1984); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); and Jallali v. U.S.A. Funds, 2012 WL 3291873, 4 (S.D. Fla.). Cox v. Mills, 465 Fed.Appx. 885 (11th Cir. 2012) (An otherwise private person acts under color of state law when he is a willful participant in joint action with a state actor.) This Court correctly announced this law in the case of Brivik v. Murray, 212 WL 4761267 (M.D. Fla), referring to this circuits law as stated in Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir 1992), where a defendant can be deemed to act as state actors if one of the following conditions is meet: (1), The state coerced or at least significantly encouraged the action alleged to violate the Constitution (State Compulsion Test); (2), The private parties performed a public function that was traditionally the exclusive prerogative of the State (Public Function Test); or (3)The State had so far insinuated itself into a position of interdependence with the private parties that it was a joint participant in the enterprise. (Nexus/Joint Action Test). The state courts decision not to follow well-established laws, court rules, Bar Rules, Judicial Cannons significantly encouraged the Defendants in their persistent course of conduct in violating Page 8 of 25

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Plaintiffs constitutional rights, thus meeting the State Compulsion Test. A retroactive imposition of a practice restriction, after the alleged violation occurs, violates Plaintiffs vested property rights by state actors. Landgraf v. USI Film Products, 511 U.S. 244, 265-67, 114 S. Ct. 1483, 1497-98, 128 L. Ed. 2d 229 (1994). Only the state, through disciplinary procedures under the exclusive control of the Supreme Court, can discipline attorneys or restrict their practice of law. Here, the Defendants, through their joint enterprise, agreement, and/or conspiracy with the inferior state court, has assumed the role of the Florida Supreme Court in bringing disciplinary proceedings, restricting the practice of law, and now ordering restitution, thus meeting the public function test. Critically, however, the Defendants are sanctioning Dandar for complying with his ethical obligations to the federal court and his client, as determined by the Florida Bar Ethics Counsel. The Nexus/Joint Action test has also been met because without the full cooperation of Judge Beach and the inferior state courts in violating the Judicial Cannons, Florida Bar Rules, Procedural Rules, and a plethora of binding case law, the Defendants would not have been able to impose the illegal practice restriction, and being awarded to do so, in return for the benefits Pope can provide in his role as an attorney for the Florida Bar and Judicial Qualifications Committee. Since the state has insinuated itself with the private party into a position of interdependence with the private party, then it must be recognized that the private party is a joint participant with the state in the challenged activity. Burton v Wilmington Parking Authority, 365 U.S. 715, 725 (1961). Symbiotic relationship must involve the alleged Constitutional violation. It does here. In this action, the state of Florida is involved through the state court judges. Bringing in Robert Beach as judge over the McPherson case was another goal of Defendants. Additional evidence of the conspiracy with Judge Beach is found in the December 3, 2003, hearing transcript,

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where Judge Beach followed the demand of the Defendants that the case would never settle as long as Dandar was counsel. This type of relationship between a private party and a state court judge transforms the private party into a state actor under 1983. All of the unethical ex parte contact was directed by the supreme leader of Scientology, David Miscavige, pursuant to testimony of Mr. Rathbun. [Dkt 18] The terms of s 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. This second element requires that the plaintiff show that the defendant acted under color of law. Adickes v. S. H. Kress & Company, 398 U.S. 144, 90 S.Ct. 1598, 1604 (1970). See also, Lugar v. Edmondson Oil Co., Inc. 457 U.S. 922, 102 S.Ct. 2744 (1982) (a procedural scheme created by state law through state courts is a product of state action and is thus subject to constitutional restraints and properly may be addressed in action under 42 U.S.C.A. 1983; whether there is such a close nexus between the State and the private conduct allegedly causing the deprivation of a federal right that the conduct can fairly be attributable to the State); Cypress Ins. Co. v. Clark, 144 F.3d 1435 (11th Cir. 1998) (damages to a plaintiff's business reputation are only recoverable in a 1983 action if those damages were incurred as a result of government action significantly altering the plaintiff's constitutionally recognized legal rights). The Fourteenth Amendment subjects the state and state actors, i.e, private persons acting under color of state law, liable for violation of rights protected by the U.S. Constitution. McCreary County, KY v. ACLU of KY, 545 U.S. 844 (2005). The Defendants also interfered with the property right of the Brennan estate by obtaining an injunction in state court through a procedural scheme created by the Defendants and state judge Robert Beach to deprive Dandar of his liberty and property rights. Cypress Ins. Co. v Clark, 144 Page 10 of 25

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F.3d 1435 (11th Cir.1998). The liberty right guaranteed under the due process clause of the Fourteenth Amendment means ...the right of a citizen to be free in the enjoyment of all his facilities; to live and work, as and where he wills; to earn his livelihood; enter into all contracts which may be proper, necessary and essential. Buxton v. City of Plant City, Florida, 871 F.2d 1037 (11th Cir. 1989). Plaintiffs procedural and substantive due process rights were violated, relying on Collens & Company, Inc. v City of Jacksonville, 38 F.Supp 2d 1338, 1342 (M.D. Fla. 1998), and the cases cited therein. Procedural due process concerns proper notice and proper hearing at a meaningful time and in a meaningful manner. It also concerns prior notice of penalties. See, Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1337 (11th Cir. 1999)(due process requires fair notice that violation of a rule or statute might subject an offender to excessive punitive penalties). Clearly, due process was not afforded to Dandar as there was no notice prior to filing the Brennan action that the CSA is a practice restriction. Substantive due process prohibits arbitrary and capricious actions under color of state law or by said actors against the vested rights guaranteed under the U.S. Constitution. Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379-80 (11th Cir. 1994) (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)); and Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, 614 (11th Cir. 1997). Within the substantive due process analysis, the court looks to see whether or not there is an abuse of governmental power sufficient to allege a Constitutional violation. Rymer v. Douglas County, 764 F.2d 796, 800 (11th Cir. 1985). A deprivation is of Constitutional Stature if it is undertaken for improper motive and by means that were pretextual, arbitrary and capricious, and without a rational basis. Greenbrier, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577 (11th Cir. 1989).

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Removing Dandar as counsel simply because Defendants demanded it is arbitray, capricious, and pretextual. Sanctions imposed for civil contempt to coerce compliance cannot be any greater than necessary to ensure such compliance and may not be so excessive as to be punitive in nature. Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1304 (11th Cir.1991). Substantive due process violations abound in this matter where Judge Beach through a joint enterprise, agreement, and/or conspiracy with the Defendants, intentionally ignored the law and court rules for the improper motive to make the McPherson go away, then retaliating against Dandar for daring to represent another injured party against Scientology. III. An Injunction is Warranted The federal court may properly issue an injunction against the Defendants from proceeding in state court. Mitchum v. Foster, 407 U.S. 225, 242-243, 92 S.Ct. 2151, 2162 (1972) (...Congress plainly authorized the federal courts to issue injunctions in s 1983 actions, by expressly authorizing a suit in equity as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person's constitutional rights. ). Since the Florida state courts would not give res judicata effect to state orders entered to date, as the state proceedings has not ended, then the federal court can enjoin the state court proceedings by enjoining the Defendants. The Court should issue a preliminary injunction because: (1) Plaintiffs are likely to succeed on the merits; (2) Plaintiffs will suffer imminent and irreparable injury absent an injunction; (3) Plaintiffs would suffer greater harm without injunctive relief than Defendants would suffer if the injunction is granted; and (4) the public interest would be served by enjoining Defendant's

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unconstitutional acts. See International Cosmetics Exchange, Inc. v. Gapardis Health and Beauty, Inc., 303 Fd. 3d 1242, 1246 (11th Cir. 2002). See also, Local Rules 4.05(b)(4) and 4.06(b)(1). 1. Plaintiffs Are Likely to Succeed on the Merits / Deprivation of Rights Without Due Process of Law A. Liberty and Property Rights

Dandar has recognized liberty and property interests as an attorney with his clients and prospective clients. Little v. City of North Miami, 805 F.2d 962 (11th Cir.1986) (attorney's professional reputation implicates liberty and property interests protected by the Constitution); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524 (1st Cir. 1983) (plaintiff would have a viable first amendment claim if he could show the (state actor in procuring the state order) was, in fact, retaliatory for exercise of constitutionally protected freedoms.); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981)(state-created property right in business goodwill is an interest protected by the Due Process Clause); Economic Development Corp. of Dade County v. Stierheim, 782 F.2d 952 (11th Cir.1986) (Florida law recognizes business goodwill as an interest protected by the Due Process Clause); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (to establish a procedural due process claim, a plaintiff must first show the deprivation of a liberty or property interest protected by the Due Process Clause). Buxton v. City of Plant City, Fla., 871 F.2d 1037 (11th Cir. 1989) (The Supreme Court has held liberty, as guaranteed in the due process clause of the fourteenth amendment to mean....to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his

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carrying out to a successful conclusion the purposes above mentioned.). The Defendants have acted in concert with state court judges in a proceeding in a closed-to-the-public courtroom in Clearwater, Florida, and completely lacking subject matter jurisdiction, in implementing state action, by obtaining orders requiring Dandar to withdraw from the Brennan case in the Middle District of Florida.3 As the United States Supreme Court explained, the notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (stating that procedural due process under the Fourteenth Amendment of the United States Constitution guarantees notice and an opportunity to be heard at a meaningful time and in a meaningful manner). By forcing Dandar to withdraw from Brennan, sanctioning him for not just time spent in state court with multiple motions of contempt and criminal contempt, but also for what was taking place in federal court, i.e., abiding by the federal court rules and orders, and ethical obligations to the Brennan Estate, and with no ability to purge contempt sanctions in state court, is violative of Dandars federally-protected constitutional rights, particularly when Dandar does not come within

The Second District Court of Appeal impliedly recognized that Judge Beach lacked subject matter jurisdiction, but held Dandar was procedurally barred from raising this argument, presumably because Dandar failed to raise this argument in the first appeal in 2009 following the McPherson dismissal with prejudice. Dandar v. Church of Scientology Flag Service Organization, Inc. 59 So.3d 144 (Fla. 2 nd DCA 2011), even though there was and continues to be no final judgment.

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the purview of Rule 1.730, the agreement is a global settlement far beyond a mere mediation of a wrongful death case, and the claimed amount of sanctions violate due process. B. Proceedings are Without Subject Matter Jurisdiction (I) Jurisdiction Cannot be Invoked by a Motion

McPherson was closed upon the filing of a Joint Voluntary Dismissal with Prejudice on June 8, 2004. The subject state court proceedings began on a motion filed in a closed case years later. There has been no process, service of process, or pleadings to invoke the jurisdiction of the state court. The state court did not have jurisdiction to consider the complaint-motion in a closed case. See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 802 (Fla.2003); Stone v. Stone, 873 So.2d 628, 630 (Fla. 2nd DCA 2004). A voluntary dismissal pursuant to Rule 1.420, Fla. R. Civ. P., terminates the litigation instantaneously, and removes completely from the court's consideration the power to enter an order. This is equivalent in all respects to a deprivation of jurisdiction. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 68-69 (Fla.1978); Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.1954) (the trial court's lack of subject matter jurisdiction may be raised at any time.); Wallace v. Townsell, 471 So.2d 662, 665 (Fla. 5th DCA 1985) (any breach of the settlement agreement must be the subject of a separate action).; Century Elevator Co. v. Spinos, 652 So.2d 451 (Fla. 4th DCA 1995) (a court has no jurisdiction to review, modify, or enforce a settlement in a closed case); Zimmerman v. Olympus Fidelity Trust, LLC, 847 So.2d 1101, 1103 (Fla. 4th DCA 2003) (when a dismissal with prejudice has been filed without any order reserving jurisdiction, a party must file a new cause of action in order to address any breach of a mediation agreement). Miller v. Fortune Ins. Co., 484 So.2d 1221 (Fla. 1986) (a trial judge has no jurisdiction to reinstate a dismissed proceeding.)

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(ii)

Only the Florida Supreme Court Can Regulate the Practice of Law

Article 5, 15, Fla. Const., provides that [t]he supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. In The Florida Bar v. St. Louis, 967 So.2d 108, 121-122 (Fla. 2007), the Court expressed that a practice restriction contravenes established interest of society, and is void as against public policy. A practice restriction agreement, particularly one designed to protect the opposing party, violates public policy and Rule 4-5.6(b). A practice restriction cannot be entered into, and if it is, it is clearly unenforceable as against public policy. The attorneys seeking to enforce a practice restriction are guilty of violating Rule 4-5.6. See also, Brumby v. City of Clearwater, 108 Fla. 633, 149 So. 203 (Fla. 1933) (agreements in violation of public policy are void because they have no legal sanction and establish no legitimate bond between the parties.) Judge Beachs failure to report Popes violation of Rule 4-5.6 and other Standards and Rules as required by Judicial Cannon 3D(2), is further evidence of their joint enterprise to violate Dandars constitutional rights. The Florida Supreme Court has made it clear that no trial or appellate court can restrict an attorney's practice of law. Pippin v. State, 559 So.2d 708, 711 (Fla. 1st DCA 1990); Outlaw v. Douglas, 378 So.2d 892 (Fla. 4th DCA 1979) (It is firmly established in Florida law that the Supreme Court alone is vested with exclusive jurisdiction to regulate the practice of law). In direct violation of this binding precedent, Judge Beach announced that was going to hold disbarment proceedings in his closed courtroom, in furtherance of his enterprise with the Defendants. Under a reasonable standard, would anyone be on notice that a state court would impose sanctions, let alone in excess of one million dollars, for filing a suit in federal court when there was no agreement for a practice restriction, the CSA does not contain those words, there was no prior order imposing a practice Page 16 of 25

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restriction, where Dandar objected to a practice restriction,4 and where a practice restriction is void as a matter of public policy and the Rules Regulating the Florida Bar as stated by the highest state court? Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1996); The Florida Bar v. St. Louis, 967 So.2d 108, 121-122 (Fla. 2007); Florida Ethics Opinion No. 04-2, 2005 WL 4692972 (there is a strong policy favoring the publics unfettered choice of counsel, and a practice restriction is void and unenforceable where it is used to make a plaintiffs counsel to go away and never come back).5 See also, Adams v. Bell South Communications, Inc., 2001 W.L. 34032759 (S.D. Fla. 2001). In St. Louis and Adams, a practice restriction agreement, particularly one designed to protect the opposing party, violates public policy and Rule 4-5.6(b). The Defendant attorneys seeking to enforce a practice restriction are guilty of violating Rule 4-5.6, St. Louis; Adams, Chandris, however the state court is awarding them for so doing because Judge Beach imposed the practice restriction despite these cases and Ethics Opinion because they were decided after the CSA was entered, despite the fact that the Rule was in effect and Chandris was published. C. Ordering Withdrawal in Brennan / Ordering Ethics Violations

Based on an order from Judge Beach interpreting the language in the CSA to be a practice restriction against Dandar prohibiting him from ever representing another client against Scientology in any jurisdiction as he was told to do by Defendants, additional orders were entered finding Dandar in contempt of court because the Brennan court did not grant Dandars motion to withdraw, because new counsel could not be located. Rule 5.030(a), Fla. Prob. R., requires a

Scientology attorney Monique Yingling of the W illiams & Connolly, W ashington, D.C., confirmed in an affidavit that Dandar objected to a practice restriction at mediation. See also, ABA Formal Opinion 93-371; North Carolina Opinion RPC 179 (1994); California Formal Opinion 1988-104; Oregon Opinion 1991-47; Michigan Bar Opinion CI-1165, Texas Opinion 505 (1995); Association of the Bar of the City of New York, Opinion 1999-3; Tennessee Ethics Committee Opinion 97-F-141.
5

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personal representative to be represented by counsel. Dandar was sanctioned for informing Judge Merryday the true reasons for requesting to withdraw, instead of using a plain vanilla motion to withdraw. Thus, the Defendants retaliated against Dandar for telling the truth to Judge Merryday and meeting his ethical obligations to the federal court and his client. In order to hold one in contempt, there must be clear and convincing evidence which establishes that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order. Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002). Contempt cannot be found where a person is under conflicting court orders and compliance would cause violation of the other court order. This district court has already found that the imposition of the practice restriction was illegal. Thus, Judge Beachs finding of contempt upon motion by the Defendants is further evidence of the conspiracy to retaliate against Dandar and deprive him of his constitutional rights. Rule 4-1.16(b)(1), R. Reg. Fla. Bar, provides that except as stated in subdivision ( c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client; Rule 4-1.16( c),Compliance with Order of Tribunal. Local Rule 2.03(b) of the Middle District of Florida, prohibits an attorney from abandoning the case or withdrawing without court approval. Rule 3-4.1, Rules Regulating the Florida Bar, provides that all members of the Florida Bar are charged with notice and held to know the provisions of this rule and the standards of ethical and professional conduct. Standard 6.11 of the Lawyer Sanction Standards provides that disbarment is appropriate when a lawyer: (a) with the intent to deceive the court, knowingly makes a false statement or submits a false document or (b) improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. Page 18 of 25

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Standard 6.2, entitled Abuse of the Legal Process, provides for sanctions for the failure to obey any obligation under the rules of a tribunal. Standard 6.21 provides for disbarment when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding. Standard 6.22 provides for suspension when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding. The Defendants, through judge Beach, sought to force Dandar to violate the above ethical provisions. Judge Beach ordering Dandar to withdraw in Brennan, and holding Dandar in indirect criminal contempt for not doing so, if complied with, would have caused further irreparable harm to Dandar and his client for violating the Brennan order and the above ethical provisions. D. Violation of Rule 3.840, Fla. R. Crim. P.

As provided by Pugliese v. Pugliese, 347 So.2d 422 (Fla. 1977), where the order contains no key to the contemnor's cell, the order is one of criminal contempt. Where the alleged contemptuous conduct occurred outside the presence of the court, it is an indirect contempt, requiring all of the due process safeguards afforded by Rule 3.840, Fla. R. Crim. P. Judge Beach, through the conspiracy with the Defendants and at the insistence by Pope, failed to afford due process because Rule 3.480 was never followed. Rule 3.840 requires another judge be appointed by the Chief Justice of the Florida Supreme Court to determine sanctions, if any, for Dandars alleged violation of Judge Beachs order. The purpose of civil contempt is to coerce action or non-action by a party, usually at the instance of the opposing party. Such orders, while usually imposing a jail sentence, provide for purging the contempt and terminating the sentence. Criminal contempt, on the other hand, is Page 19 of 25

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punitive and invoked to maintain or to vindicate the authority of the court. When the alleged contemptuous conduct occurs outside the presence of the court, it is an indirect contempt, requiring all of the due process safeguards afforded by Florida Rule of Criminal Procedure 3.840. International Medical Centers, Inc., v. Colavecchio, 563 So.2d 784, 786 (Fla. 4th DCA 1990). Before holding one in contempt of court, the court is required to determine that the condemnor has the ability to purge. Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997). This process was not afforded. Not only did Judge Beach know that there was no ability to purge, but he and the Defendants also had knowledge of the severe ethical violations which would result. A court should not enter an injunction or order which cannot be enforced through coercive contempt sanctions. Chandler v. James, 180 F.3d 1254, 1266 (11th Cir. 1999). This is another violation of Dandars constitutional rights at the hands of the Defendant state actors. E. Improper Implementation of Rule 1.730( c), Fla R. Civ. P.

After the Brennan court issued a permanent injunction against the state court and Defendant, Scientology, the injunction was reversed on appeal. The Defendants in the instant action then sought additional orders in the state court seeking attorney fees against Dandar pursuant to Rule 1.730( c ). The court, now judge Farnell, obliged. Sanctions pursuant to Rule 1.730( c ) can only be imposed against the parties in the case who were court-ordered to mediate, and only if that party signed the mediation settlement agreement. Further, the case must be pending and the sanctionable conduct must not be outside of the lawsuit. None of these four factors are present here to trigger the Rule. Rule 1.730( c) provides that a court may impose sanctions, including attorney's fees, against a party who fails to perform under a settlement agreement reached in court-ordered mediation. Lazy Flamingo, USA, Inc. v. Greenfield, 834 So.2d 413, 414 (Fla. 2nd DCA 2003) (emphasis added). See Massey Page 20 of 25

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v. Beagle, 754 So. 2d 146 (Fla. 1st DCA 2000) (reversing the imposition of sanctions against a nonparty insurance adjuster). Here, Dandar was not a party to this wrongful death case, and was never ordered to mediate, since the only court-ordered mediation was in the wrongful death case of Lisa McPherson. Thus, the only parties court-ordered to mediate were the named Plaintiff, the Estate, and the named wrongful death case Defendants. Those are the only parties who can be assessed attorney fees for failing to perform the executory terms under the mediation agreement up to the time of the dismissal. Therefore, there is no authority to grant attorney fees or costs for any alleged breach of the agreement by Dandar under Rule 1.730( c ). Rule 1.730( c) does not authorize the imposition of sanctions for events occurring outside of the lawsuit. All of the executory or performance requirements of the CSA were completed prior to the filing of the Joint Voluntary Dismissal with Prejudice filed on June 8, 2004. All of the sanctioned acts stated within the state court orders occurred after dismissal. None of the acts contained in the orders concern the McPherson lawsuit. Most of the sanctioned acts occurred in the federal court in Tampa. Rule 1.730( c) expressly authorizes the court to enter judgment on an agreement reached through mediation under these rules. However, where the allegations of a settlement were founded on events occurring outside the lawsuit, no such authority exists. Delmas v. Harris, 806 So.2d 578, 579 (Fla. 4th DCA 2002). As the court noted in George Vining & Sons, Inc. v. Jones, 498 So.2d 695, 698-99 (Fla. 5th DCA 1986), a settlement of a law action substitutes a new claim for a prior one, which is thereby ended and should be dismissed; if the settlement is not performed plaintiff has a different cause of action for damages, which necessitates the filing of a new action. Page 21 of 25

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Sanctions pursuant to Rule 1.730 can only be imposed in pending litigation. This case was closed on June 8, 2004. Thus, there was no pending case which afforded the circuit court to exercise its power to address issues concerning the enforceability of the settlement agreement. See Stamato v. Stamato, 818 So. 2d 662 (Fla. 4th DCA 2002). . It is quite clear that Rule 1.730 requires the signature of the attorney for the party, but also requires the party's signature to bind the party. City of Delray Beach v. Keiser, 699 So.2d 855, 856 (Fla. 4th DCA 1997); Freedman v. Fraser Eng'g & Testing, Inc., 927 So.2d 949, 953 (Fla. 4th DCA 2006); City of Delray Beach v. Keiser, 699 So.2d 855, 856 (Fla. 4th DCA 1997); Gordon v. Royal Caribbean Cruises, Ltd., 641 So.2d 515, 517 (Fla. 3d DCA 1994) (an attorney's signature alone, albeit in the presence of the client, is wholly insufficient under [Rule 1.730] to bind the client, where the client did not sign the agreement, even if the attorney executed the document in the clients presence at the mediation); Dean v. Rutherford Mulhall, P.A. 16 So.3d 284, 285 -286 (Fla. 4th DCA 2009) (although Deans attorney signed the settlement agreement, the settlement agreement did not bind Dean because he did not sign it). Without the qualifying premise to trigger the applicability of the Rule; court-ordered mediation of a party; signed by the party to be bound, for matters occurring within the lawsuit that is still pending, and based upon the well-settled law that any authority to impose attorney fees are to be strictly construed, Sarkis v. Allstate Ins. Co., 863 So.2d 210 (Fla. 2003), the state court had no authority or jurisdiction to impose sanctions under the Rule. However, in furtherance of the conspiracy, Dandar faces the imposition of sanctions at the November 26, 2012 hearing which Judge Farnell characterizes as damages for bad faith violations of the CSA.

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F.

Entitlement to Public Proceedings

The proceedings in state court have been sealed at the insistence of the Defendants. This violates Florida law. Both civil and criminal court proceedings in Florida are public events and adhere to the well established common law right of access to court proceedings and records. Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947); Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 116-117 (Fla. 1988). 2. Irreparable Injury to Business

Plaintiffs have recently declined to represent families having wrongful death cases because of the imposition of the illegal practice restriction. Even the briefest of infringement of First Amendment rights constitutes irreparable injury. See, Elrodv. Burns, 427 U.S. 347, 137374 (1976) ("the loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury."). Further, where an infringement on First

Amendment rights is shown, an irreparable injury is presumed. See Cate v. Oldham, 707 F.2d 1176, 1189 (11 t h Cir. 1983). ABC Charters, Inc. v. Bronson, 591 F.Supp.2d 1272, 1308 (S.D. Fla. 2008) (The economic harm faced by Plaintiffs as described in their affidavits constitutes irreparable injury.); Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005) (threat of substantial loss of business and certainly bankruptcy qualified as a sort of irreparable harm needed to support preliminary injunction.). Here, the injury of a judgment in excess of one million dollars, for honoring first a state court illegal order to withdraw by filing the motion to withdraw, then honoring the Brennan federal court order denying the motion to withdraw, would be irreparable injury lasting a lifetime, interruption and destruction of Plaintiffs sole source of income, i.e., a two man law firm, interruption of the firms

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clients needs, and certain individual and corporate bankruptcy, with no harm to Defendants if injunction issued. Without prior fair notice that the state court would impose an illegal practice restriction, due process has been violated affecting constitutionally protected rights for which this court must enjoin. BMW of North America, Inc. v. Gore,517 U.S. 559, 562, 116 S.Ct. 1589, 1592 (1996). Jove Engineering, Inc. v. I.R.S., 92 F.3d 1539, 1558 (11th Cir.1996)(Sanctions imposed for civil contempt to coerce compliance cannot be any greater than necessary to ensure such compliance and may not be so excessive as to be punitive in nature.). The due process clause requires fair notice that violation of a rule or statute might subject an offender to excessive punitive penalties. Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1337 (11th Cir. 1999). See also, Laney v. Hospital Bd. of Directors of Lee County,2010 WL 5161367, 7 (M.D. Fla.). A practice restriction is void under Florida law. Chandris; St. Louis; Adams. There are no exceptions. The practice restriction was imposed subsequent to Dandar accepting representation in Brennan. The retroactive application violates due process protections. Landgraf. 3. Balance of Harms

Plaintiffs suffer and wi l l s uffer irreparable harm from the clear violation of their First Amendment rights by Defendants. The Defendants are not at risk of an injunction causing them harm in excess of the irreparable harm suffered by Plaintiffs. Accordingly, the balance of harms favors the Plaintiffs being granted an injunction. 4. Public Interest

The public interest is clearly served by an injunction protecting fundamental rights secured under the Constitution, as well as prohibiting practice restrictions on attorneys. Persons aggrieved have a constitutional right to their choice of counsel. In The Florida Bar v. St. Louis, 967 Page 24 of 25

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So.2d 108, 121-122 (Fla. 2007), the Court expressed that a practice restriction contravenes established interest of society and has a tendency to be injurious to public welfare, thus it is void as against public policy. 5. Bond

No bond should be required. The Defendants would not suffer any harm from the requested injunction that could be assuaged by recovery from a monetary bond. CONCLUSION Plaintiffs are likely to succeed on the merits, and Defendant's actions threaten Plaintiffs with continuing and imminent irreparable harm. The balance of harms overwhelmingly favors the Plaintiffs; issuance of the requested injunction; as does the public interest; and no bond should be required. Accordingly, the above motion for preliminary injunction should be granted. Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true. /s/ Kennan G. Dandar Kennan George Dandar, Esq.

I HEREBY CERTIFY that on November 23, 2012, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the counsel of record. /s/ Kennan G. Dandar, Esq. KENNAN G. DANDAR, ESQ. Florida Bar No. 289698 Post Office Box 24597 Tampa, Florida 33623-4597 813-289-3858/Fax: 813-287-0895 Attorney for Plaintiffs kgd@dandarlaw.net (Email) EF.KGD@dandarlaw.net (Court Desig.) EF.DMW@dandarlaw.net (2d Desig.)

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