nafc v. scientology: rtc's motion to dismiss

8/12/2019 NAFC v. Scientology: RTC's Motion to Dismiss

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IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF OKLAHOMA

1. NATIONAL ASSOCIATION OF FORENSIC )COUNSELORS, INC., a Nevada Non-Profit )

Corporation; et al., ) )Plaintiffs, )

)v. ) Case No. 6:14-cv-00187-RAW

)1. NARCONON INTERNATIONAL, a )

California Non-Profit Corporation; et al., ))

Defendants. )

MOTION TO DISMISS OF DEFENDANTRELIGIOUS TECHNOLOGY CENTER, INC.

FOR LACK OF PERSONAL JURISDICTION OR, ALTERNATIVELY,FOR FAILURE TO STATE A CLAIM, AND BRIEF IN SUPPORT

David L. Bryant, OBA No. 1262David E. Keglovits, OBA No. 14259Amelia A. Fogleman, OBA No. 16221GABLEGOTWALS1100 ONEOK Plaza100 West Fifth StreetTulsa, Oklahoma 74103-4217(918) 595-4800ATTORNEYS FOR DEFENDANTRELIGIOUS TECHNOLOGY CENTER

6:14-cv-00187-RAW Document 247 Filed in ED/OK on 07/01/14 Page 1 of 25


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INDEX OF AUTHORITIES

Cases:

Am. Educ. Corp. v. Chase ,2006 WL 2044932 47788 (W.D. Okla. July 13, 2006) ..................................................... 3

Am. Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V. ,710 F.2d 1449 (10th Cir. 1983) ........................................................................................ 9

Annie Oakley Eaters., Inc. v. Sunset Tan Corporate & Consulting, LLC ,703 F. Supp. 2d 881 (N.D. Ind. 2010) ............................................................................ 11

Bell Atlantic Corp. v. Twombly ,550 U.S. 544 (2007) ................................................................................................ 16, 17

Bridges v. Lane ,

351 Fed. Appx. 284 (10th Cir. 2009) ............................................................................. 16

Burger King Corp. v. Rudzewicz ,471 U.S. 462 (1985) .................................................................................................... 4, 5

Busch v. Viacom Intl, Inc. ,477 F. Supp. 2d 764 (N.D. Tex. 2007) ........................................................................... 11

Clark v. Tabin ,400 F. Supp. 2d 1290 (N.D. Okla. 2005) ...................................................................... 8, 9

Daimler AG v. Bauman ,134 S. Ct. 746 (2014) ............................................................................................... 4, 5, 7

Doe v. Natl Med. Servs. ,974 F.2d 143 (10th Cir. 1992) .......................................................................................... 4

Dudnikov v. Chalk & Vermillion Fine Arts, Inc. ,514 F.3d 1063 (10th Cir. 2008) ................................................................................ 3, 4, 5

Firemans Fund Ins. Co. v. Thyssen Mining Construction of Canada, Ltd. ,703 F.3d 488 (10th Cir. 2012) .......................................................................................... 5

Helicopteros Nacionales de Columbia, S.A. v. Hall ,466 U.S. 408 (1984) ........................................................................................................ 4

Intl Shoe Co. v. Wash. ,326 U.S. 310 (1945) ................................................................................................ 3, 4, 5

Kerber v. Qwest Group Life Ins. Plan ,647 F.3d 950 (10th Cir. 2011) ........................................................................................ 15



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Mandelbaum v. Fiserv, Inc. ,787 F. Supp. 2d 1226 (D. Colo. 2011) ........................................................................... 15

OMI Holdings, Inc. v. Royal Ins. Co. of Canada ,149 F.3d 1086 (10th Cir. 1998) .......................................................................... 11, 13, 14

Outdoor Channel, Inc. v. Performance One Media, LLC ,826 F. Supp. 2d (N.D. Okla. 2011) ................................................................................ 10

Peay v. Bellsouth Med. Assn Plan ,205 F.3d 1206 (10th Cir. 2000) ........................................................................................ 3

Peterson v. Grisham ,2008 WL 4363653 (E.D. Okla. Sept. 17, 2008) .............................................................. 17

Rambo v. American S. Ins. Co. ,839 F.2d 1415 (10th Cir. 1988) ........................................................................................ 4

Robbins v. Okla. ,519 F.3d 1242 (10th Cir. 2008) ...................................................................................... 16

Shrader v. Biddinger ,633 F.3d 1235 (10th Cir. 2011) .................................................................................... 7, 8

Sleepy Lagoon, Ltd. v. Tower Grp., Inc. ,809 F. Supp. 2d 1300 (N.D. Okla. 2011) ........................................................................ 12

Soma Medical Intl v. Standard Chartered Bank ,196 F.3d 1292 (10th Cir. 1999) ........................................................................................ 7

Woods v. Prestwick House, Inc. ,2011 OK 9 ..................................................................................................................... 13

World-Wide Volkswagen Corp. v. Woodson ,444 U.S. 286 (1979) ...................................................................................................... 11



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Statutes and Other Authorities:

15 U.S.C. 1125 ....................................................................................................................... 14

Fed. R. Civ. P. 4(k)(1)(A)............................................................................................................ 4

Fed. R. Civ. P. 12(b)(2) ............................................................................................................... 1

Fed. R. Civ. P. 12(b)(6) ......................................................................................................... 1, 14

12 O.S. 1449 .................................................................................................................... 13, 14

12 O.S. 2004(F) ........................................................................................................................ 4



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IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF OKLAHOMA

1. NATIONAL ASSOCIATION OF FORENSIC )COUNSELORS, INC., a Nevada Non-Profit )

Corporation; et al., ) )Plaintiffs, )

)v. ) Case No. 6:14-cv-00187-RAW

)1. NARCONON INTERNATIONAL, a )

California Non-Profit Corporation; et al., ))

Defendants. )

MOTION TO DISMISS OF DEFENDANTRELIGIOUS TECHNOLOGY CENTER, INC.

FOR LACK OF PERSONAL JURISDICTION OR, ALTERNATIVELY,FOR FAILURE TO STATE A CLAIM, AND BRIEF IN SUPPORT

Defendant Religious Technology Center (RTC) moves the Court to dismiss RTC from

this action, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction. Alternatively,

RTC, specially appearing, moves to dismiss Plaintiffs claims against RTC, pursuant to Fed. R.

Civ. P. 12(b)(6), for failure to state a claim against RTC. 1

INTRODUCTION

Plaintiffs are two Nevada entities with a principal place of business in Indiana. They

have sued RTC, a California non-profit religious corporation with a principal place of business in

California. There is no personal jurisdiction over RTC.

Specifically, Plaintiffs National Association of Forensic Counselors (NAFC) and its

subsidiary American Academy of Certified Forensic Counselors, Inc. (CCFC), are Nevada

1 RTC has not opted into the optional unified responsive pleadings schedule proposed byPlaintiffs and Defendant Narconon of Oklahoma, Inc. in their Joint Application (Doc. 237) filedJune 24, 2014. Accordingly, the normal briefing schedule established by the Courts local ruleswill apply to this Motion.



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entities based in Indiana. (Compl. 1-2). Plaintiffs claim to provide nationally accredited

certifications for professionals working with criminal offenders in the fields of criminal justice,

corrections, addictions and mental health. ( Id . 88). NAFC and CCFC bring this action

against 82 Defendants, including RTC. NAFC and CCFC allege five substantive counts against

all Defendants, without differentiation or distinction between or among Defendants,

purportedly seeking redress for alleged infringements of Plaintiffs trademark rights in their logo,

accreditations and accreditation initials, by organizations and individuals involved in various

Narconon treatment facilities and programs.

RTC is a California non-profit religious corporation established in 1982 to own andmaintain trademarks associated only with the religious services and products of the Scientology

religion founded by L. Ron Hubbard. RTC does not own or license the mark Narconon or any

other trademark or the L. Ron Hubbards technologies used in the secular and educational fields.

Nor does RTC own, control, employ, participate in management or operation, or receive any

funds from Narconon of Oklahoma, or from any of the secular social betterment organizations

which license or use Mr. Hubbards technologies for secular, charitable, or educational purposes,

including the Association for Better Living and Educational International (ABLE), Narconon

International, Friends of Narconon International, or any of the organizations or individuals the

Complaint refers to as the Narconon Network (Compl. 111), the Narconon Treatment

Centers ( Id. 112), or the Narconon Referral Entities ( Id . 113).

RTC does not belong in this lawsuit. First, the Court lacks personal jurisdiction over

RTC. RTC has no contacts with Oklahoma related to this controversy or even generally. This

undeniable truth is demonstrated by the facts presented in the Affidavit of Warren McShane,

RTCs President, attached hereto as Exhibit 1 (McShane Aff.). The Complaint accurately



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alleges that RTC is not an Oklahoma resident. (Compl. 19). The Complaint barely attempts to

plead any factual basis for personal jurisdiction over RTC, and to the nominal extent it does,

Mr. McShanes Affidavit shows that Plaintiffs allegations are incorrect. The Complaint alleges

nothing more than conclusory allegations most notably that RTC participated with other

Defendants in a conspiracy to infringe Plaintiffs trademarks and related rights which are

also refuted by Mr. McShanes Affidavit and in any event could not support a constitutional

exercise of personal jurisdiction over RTC.

Second, even if RTC were subject to personal jurisdiction in Oklahoma, which it is not,

Plaintiffs Complaint should be dismissed against RTC because it fails to state a claim for reliefagainst RTC.

ARGUMENT AND AUTHORITIES

I. THE COURT LACKS PERSONAL JURISDICTION OVER RTC.

A. Law of General or Specific Personal Jurisdiction

A court cannot grant any form of relief against a defendant unless the defendant is

amenable to the courts personal jurisdiction. See Intl Shoe Co. v. Wash., 326 U.S. 310, 316

(1945). Plaintiffs bear the burden of establishing personal jurisdiction over each defendant . See

Dudnikov v. Chalk & Vermillion Fine Arts, Inc. , 514 F.3d 1063, 1069 (10th Cir. 2008).

Before a federal court can assert personal jurisdiction over a defendant in afederal question case, the court must determine (1) whether the applicablestatute potentially confers jurisdiction by authorizing service of process onthe defendant and (2) whether the exercise of jurisdiction comports withdue process.

Peay v. Bellsouth Med. Assn Plan , 205 F.3d 1206, 1209 (10th Cir. 2000) (quotations and

citations omitted). The Lanham Act, under which Plaintiffs assert a claim, does not provide for

nationwide service of process. See, e.g., Am. Educ. Corp. v. Chase , 2006 WL 2044932 47788, at

*2 n.4 (W.D. Okla. July 13, 2006) (citing Sunward Elecs., Inc. v. McDonald , 362 F.3d 17, 22 (2d



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Cir. 2004)). Therefore, Fed. R. Civ. P. 4(k)(1)(A) requires the Court to apply the law of the

forum state (Oklahoma). See Daimler AG v. Bauman , 134 S. Ct. 746, 753 (2014); Dudnikov ,

514 F.3d at 1070. Oklahoma permits personal jurisdiction to be exercised on any basis

consistent with the Constitution of this state and the Constitution of the United States. 12 O.S.

2004(F). Accordingly, this Court may exercise personal jurisdiction over RTC only if the due

process requirements of the U.S. Constitution are met.

The Supreme Court has held that to exercise jurisdiction in harmony with due process,

defendants must have minimum contacts with the forum state, such that having to defend a

lawsuit there would not offend traditional notions of fair play and substantial justice . Dudnikov , 514 F.3d at 1070 (quoting Intl Shoe , 326 U.S. at 316). In assessing a defendants

contacts with the forum state, the Court may consider two types of personal jurisdiction: general

and specific. See Rambo v. American S. Ins. Co., 839 F.2d 1415, 1418 (10th Cir. 1988).

Jurisdiction over a defendant in a suit arising out of or related to thedefendants contacts with the forum state is specific jurisdiction. Incontrast, where the suit does not arise from or relate to the defendantscontacts with the forum and jurisdiction is based on the defendantspresence or accumulated contacts with the forum, the court exercisesgeneral jurisdiction.

Id. ; see also Burger King Corp. v. Rudzewicz , 471 U.S. 462, 473 n.15 (1985).

Consistent with constitutional due process, a court may exercise general personal

jurisdiction over a defendant who has continuous or systematic contacts with the forum state.

Helicopteros Nacionales de Columbia, S.A. v. Hall , 466 U.S. 408, 414 nn.8 & 9 (1984). But, as

Daimler warns, a corporations continuous activity of some sorts within a state is not enough to

support the demand that the corporation be amenable to suits unrelated to that activity.

Daimler, 134 S. Ct. at 757 (quoting Intl Shoe, 326 U.S. at 318). The contacts must be such that

the defendant could reasonably anticipate being haled into court in that forum. See Doe v. Natl



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Med. Servs. , 974 F.2d 143, 146 (10th Cir. 1992). The paradigm forum where a corporate

defendant is subject to general personal jurisdiction is its place of incorporation and/or its

principal place of business. Daimler , 134 S. Ct. at 759. In determining whether a corporation is

subject to general personal jurisdiction in another forum, the question is not whether a foreign

corporations in-forum contacts can be said to be in some sense continuous and systematic, it is

whether the corporations affiliations with the State are so continuous and systematic as to

render it essentially at home in the forum State. Id. at 762 (emphasis added); see Firemans

Fund Ins. Co. v. Thyssen Mining Construction of Canada, Ltd. , 703 F.3d 488, 493 (10th Cir.

2012) (quoting Goodyear Dunlop Tires Operations v. Brown , 131 S. Ct. 2846, 2851 (2011))(same).

Indeed, the Daimler Court rejected the notion that a corporation could be subject to

general personal jurisdiction in numerous venues merely because it performs substantial

activities or engages in substantial business in each of those venues:

[T]he general jurisdiction inquiry does not focu[s] solely on themagnitude of the defendants in-state contacts. General jurisdictioninstead calls for an appraisal of a corporations activities in their entirety,nationwide and worldwide. A corporation that operates in many placescan scarcely be deemed at home in all of them. Otherwise, at homewould be synonymous with doing business tests framed before specific

jurisdiction evolved in the United States.

Id. at 762, n. 20 (quoting id. at 767 (Sotomayor, J., concurring in the judgment)).

A court may exercise specific personal jurisdiction over a defendant if the defendant has

purposefully directed its activities at residents of the forum state and the plaintiffs injuries

arise out of defendants forum-related activities. Dudnikov , 514 F.3d at 1071 (quoting

Burger King Corp. , 471 U.S. at 472). Any assertion of specific jurisdiction must always be

consonant with traditional notions of fair play and substantial justice. Dudnikov , 514 F.3d at

1071 (citing Intl Shoe , 326 U.S. at 316).



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exercise, any control, over any of the day to day operations of Narconon of Oklahoma, including

student intake and staffing personnel or any use of any of Plaintiffs logos, trademarks or

certifications. ( Id . 15.) The allegation of RTC control over Narconon based on

information and belief thus provides no basis for general or specific personal jurisdiction over

RTC.

3. Plaintiffs website allegations cannot establish personal jurisdiction overRTC.

The Complaint alleges that [p]ersonal jurisdiction exists over all Defendants because

they purposefully directed their continuous and systematic activities at the forum state through

the maintenance and operation of active websites to engage individuals in the forum state , which

constitutes the requisite minimum contacts . (Compl. 86 (emphasis added).) That vague and

conclusory allegation does not support general or specific jurisdiction over RTC. Although RTC

has a website, this fact would clearly be insufficient in itself to subject RTC to general personal

jurisdiction in Oklahoma under the standards set forth in Daimler . 134 S. Ct. at 761-62; see also

Soma Medical Intl v. Standard Chartered Bank , 196 F.3d 1292, 1296 (10th Cir. 1999) (citing

Zippo Mfg. Co. v. Zippo Dot Com, Inc ., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997)). Indeed,

even prior to Daimler s recent recognition of the limitations of general jurisdiction, the Tenth

Circuit held that [a] web site will subject a defendant to general personal jurisdiction only when

the defendant has actually and deliberately used its website to conduct commercial transactions

on a sustained basis with a substantial number of residents of the forum. 2 Shrader v. Biddinger,

633 F.3d 1235, 1243 (10th Cir. 2011) (quoting Smith v. Basin Park Hosp., Inc ., 178 F. Supp. 2d

1225, 1235 (N.D. Okla. 2001)) (emphasis added). Plaintiffs have not, and cannot, allege such

2 It is questionable even whether a defendants use of a website in this manner may subject it togeneral jurisdiction over the defendant in a post- Daimler world. But in light of the nature ofRTCs website, the Court need not decide that issue here.



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conduct here. RTC is a religious tax-exempt church and has never used its website to conduct

any commercial transactions with any residents of Oklahoma, nor to direct any RTC activity into

Oklahoma with the intent of engaging in any commercial interaction with Oklahoma or any

residents of Oklahoma. (McShane Aff. 17.)

Similarly, Plaintiffs website allegations fail to show any basis for specific jurisdiction

over RTC. The Complaint specifically identifies the websites that allegedly use the NAFC logo

and certifications improperly and without authorization. (Compl. 250.) RTC neither owns

nor controls any of those website domains. (McShane Aff. 17.) And importantly, Plaintiffs do

not and could not allege that any of their trademarks, logos, or certifications have ever appearedon RTCs website or in any other RTC materials. (Compl. 116-235, McShane Aff. 17.)

4. Plaintiffs conspiracy allegations do not support personal jurisdictionover RTC.

The Complaint also alleges that personal jurisdiction exists over all Defendants due to

Defendants participation in a civil conspiracy with its [sic] co-Defendants located in this

forum. (Compl. 86.) But to establish personal jurisdiction based on a conspiracy theory, a

plaintiff must offer more than bare allegations that a conspiracy existed, and must allege facts

that would support a prima facie showing of a conspiracy. Shrader , 633 F.3d at 1242 (quoting

Melea, Ltd. v. Jawer SA , 511 F.3d 1060, 1069 (10th Cir. 2007) (internal quotation omitted)).

Indeed, [f]or jurisdiction based on the conspiracy theory of jurisdiction to exist in Oklahoma, an

overt act of the conspiracy must have taken place in Oklahoma. Clark v. Tabin , 400 F. Supp.

2d 1290, 1297 (N.D. Okla. 2005) (citing Kohler Co. v. Kohler Intl, Ltd ., 196 F. Supp. 2d 690,

697 (N.D. Ill. 2002)). Moreover, [t]he overt act must not just be alleged, but must be shown by

affidavit that it likely took place. Mere allegations of conspiracy are insufficient. Clark , 400 F.

Supp. 2d at 1297 (citing Baldridge v. McPike, Inc ., 466 F.2d 65, 68 (10th Cir. 1972)); see also



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Am. Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V. , 710 F.2d 1449, 1454

(10th Cir. 1983) (finding that the plaintiff failed to establish personal jurisdiction based on

conspiracy because the defendants [] countered [plaintiffs allegations] by sworn affidavits that

no conspiracy . . . existed, and the plaintiff failed to controvert defendants affidavits other

than by conclusory allegations in its complaint and briefs).

Here, Plaintiffs conspiracy allegations consist entirely of the following conclusory

assertions, unsupported by any alleged facts:

(1) RTC, Mr. Miscavige, ABLE and Church of Scientology participatedin a scheme with the other Defendants to use the NAFC certifications to

bolster the Narconon Network and its counselors in the public perception.(Compl. 249 (emphasis added).)

(2) RTC and the other Defendants operate a common scheme . . . topromote the Narconon Network through the misuse of NAFC logos,trademarks, and certifications ( Id. 253 (emphasis added).)

(3) Defendants intentionally engaged in common plan to utilize NAFCsCertification, Mark and Logo to attract customers to Defendants drugtreatment facilities. ( Id. 293 (emphasis added).)

(4) Defendants were aware of the common plan and the common purpose : to receive acclaim in the industry and consequently profit and toattract new members to the Church of Scientology, based on the use of theNAFC Certifications, Mark and Logo. ( Id. 294 (emphasis added).)

(5) Defendants acted in concert, agreed and cooperated to achieve suchmisuse and took affirmative steps to encourage the achievement of theirplan. ( Id. 295 (emphasis added).)

None of these allegations states that RTC committed an overt act in Oklahoma in furtherance of

the conspiracy. Clark , 400 F. Supp. 2d at 1297. And RTC has submitted a sworn affidavit[]

that no conspiracy . . . existed, Am. Land Program, Inc. , 710 F.2d at 1454, including that RTC

never communicated to any other defendant about the use or potential use of Plaintiffs marks or

logos. Thus, Plaintiffs allegations are precisely the type of naked conclusions that cannot

support personal jurisdiction under a conspiracy theory. Repeated incantations of common



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plan, common scheme, or conspiracy, are no substitute for specific facts and fall far short of

establishing a basis for specific personal jurisdiction over RTC in Oklahoma. See Schrader ,

supra .

Finally, Plaintiffs allege that in order to promote Defendants Church of Scientology,

RTC and the Narconon Treatment Centers, and ostensibly to further some sort of conspiracy

to infringe the logos, marks, or certifications of NAFC or CCFC, RTCs Chairman made

misstatements about NBAE (National Board of Addiction Examiners) certifications during an

event held in Florida . (Compl. 248.) Specifically, in an apparent effort to suggest a

connection between a Church event and Oklahoma, Plaintiffs allege that the Chairmans remarkswere transmitted via satellite from a packed Ruth Eckerd Hall in Clearwater, Florida . . . . ( Id .

(emphasis added).) However, Plaintiffs do not identify the audience or destination for the

satellite transmission and in no way link this transmission to Oklahoma. The referenced event

was a religious convocation in celebration of the birth date of L. Ron Hubbard, Founder of the

Scientology religion, and presided over by the ecclesiastical leader of the Scientology religion

and RTCs Chairman of the Board, David Miscavige, as described in the McShane Affidavit.

(McShane Aff. 18). The event was relayed by satellite only to the Church of Scientologys

main church also in Clearwater, Florida, to accommodate an overflow of attendees . ( Id. )

Mr. Miscaviges remarks were not intended to be and were not broadcast into Oklahoma by any

means. ( Id ).

Plaintiffs allegations about the Florida event provide no support for general or specific

jurisdiction over RTC here. Indeed, this would be so even if Chairman Miscaviges remarks had

been broadcast into Oklahoma, which they were not. See , e.g ., Outdoor Channel, Inc. v.

Performance One Media, LLC , 826 F. Supp. 2d 1271, 1282 (N.D. Okla. 2011) (national



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broadcast of allegedly infringing programming did not constitute a relevant contact for purposes

[of] the personal jurisdiction analysis); Annie Oakley Enters., Inc. v. Sunset Tan Corporate &

Consulting, LLC , 703 F. Supp. 2d 881, 893 (N.D. Ind. 2010) (as a matter of law, the national

broadcast of a television program does not give rise to personal jurisdiction in every state);

Busch v. Viacom Intl, Inc ., 477 F. Supp. 2d 764, 772 (N.D. Tex. 2007) ([I]n the context of a

media or libel case, in order to support a finding of specific jurisdiction, Plaintiff must establish

that [the forum] was the focal point of both the challenged broadcast and the harm suffered.).

C. The Exercise of Jurisdiction Over RTC Would Violate Due Process.

Even if Plaintiffs could make a prima facie showing of RTC minimum contacts with

Oklahoma, an exercise of personal jurisdiction over RTC would be unreasonable, unfair, and in

violation of due process. The Tenth Circuit has identified the following factors to be considered

in determining the reasonableness of the assertion of personal jurisdiction:

In determining whether exercise of jurisdiction is so unreasonable as to violatefair play and substantial justice, we consider: (1) the burden on the defendant,(2) the forum states interest in resolving the dispute, (3) the plaintiffs interest inreceiving convenient and effective relief, (4) the interstate judicial systemsinterest in obtaining the most efficient resolution of controversies, and (5) theshared interest of the several states in furthering fundamental substantive socialpolicies.

OMI Holdings, Inc. v. Royal Ins. Co. of Canada , 149 F.3d 1086, 1095-96 (10th Cir. 1998).

These factors demonstrate the unreasonableness of exercising personal jurisdiction over RTC in

Oklahoma.

1. Burden on the defendant of litigating in the forum

While not dispositive, the burden on the defendant of litigating the case in a foreign

forum is of primary concern in determining the reasonableness of personal jurisdiction. World-

Wide Volkswagon Corp. v. Woodson , 444 U.S. 286, 292 (1979). The burden on RTC in this case

is significant. RTC is a California nonprofit corporation with its principal place of business in



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California. It has no offices, assets, or employees in Oklahoma. Accordingly, this factor weighs

in favor of RTC.

2. Forum states interest in adjudicating the dispute

Plaintiffs are not Oklahoma residents. They are Nevada corporations with their principal

places of business in Fort Wayne, Indiana. They have brought claims against 82 Defendants

13 living in Oklahoma and the others residing in at least 14 states, Canada, and the United

Kingdom. Those claims are based on conduct that was not centered in Oklahoma but rather

allegedly occurred in the various places where the Defendants reside. Thus, Oklahoma has no

greater interest in adjudicating the dispute than any of these other jurisdictions. Compare Sleepy

Lagoon, Ltd. v. Tower Grp., Inc. , 809 F. Supp. 2d 1300, 1310 (N.D. Okla. 2011) (holding that

forum state has an interest in exercising personal jurisdiction over a defendant where one or

more of the plaintiffs is a resident of the forum state).

3. Plaintiffs interest in convenient and effective relief

This element hinges on whether Plaintiffs may obtain convenient and effective relief in

another forum. This factor may weigh heavily in cases where a plaintiffs chances of recovery

will be greatly diminished by forcing it to litigate in another forum because of that forums laws

or because the burden may be so overwhelming as to practically foreclose pursuit of the lawsuit.

Id. at 1097. No such danger exists here. As noted above, Plaintiffs are Nevada corporations

based in Indiana. There is no reason to believe that Oklahoma is a more convenient forum than

the courts in or closer to their home states. Nor do they suggest that there is a peculiarity of

Oklahoma law that greatly enhances their chances of recovery here. Thus, this factor does not

support this Courts assertion of jurisdiction over RTC.



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4. Interstate judicial systems interest in obtaining efficient resolution

This factor examines whether the forum state is the most efficient place to litigate the

dispute. OMI Holdings , 149 F.3d at 1097. Key parts of this inquiry are where the wrong

underlying the lawsuit occurred and what states substantive law governs the case. Id. As noted

above, this case involves plaintiffs who are Nevada entities with a principal place of business in

Indiana and 82 Defendants, with only 13 residents of Oklahoma and the others from numerous

states and two foreign countries. Oklahoma is far from the epicenter of this dispute it is merely

one of many places in which the alleged wrongful conduct has occurred. The majority of the

claims asserted are either based on federal statutes or common law. And the single Oklahoma

statutory claim involves a right-of-publicity statute, 12 O.S. 1449, of the type that is hardly

unique to Oklahoma and which does not apply as a matter of law. See Woods v. Prestwick

House, Inc. , 2011 OK 9, 1 (noting that section 1449 protects individuals from unauthorized

use of the persons name, voice, signature, photograph or likeness, indicating that the statute

may only be invoked by individuals rather than corporate entities such as Plaintiffs (emphasis

added)). Thus, Oklahoma is in no way the most efficient place in which to litigate this dispute.

5. State interest in furthering fundamental substantive social policies

The final factor to be considered is the interests of the several states, in addition to the

forum state, in advancing fundamental substantive social policies. OMI Holdings , 149 F.3d at

1098. The analysis of this factor focuses on whether the exercise of jurisdiction by the forum

state affects the substantive social policy interests of other states. This factor does not appear to

apply in this case.

In conclusion, the Tenth Circuit has noted that: personal jurisdiction analysis requires

that [the court] draw a line in the sand. At some point, the facts supporting jurisdiction in a

given forum are so lacking that the notions of fundamental fairness inherent in the Due Process



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Clause preclude a district court from exercising jurisdiction over a defendant. Id . Even if the

Complaints paltry allegations against RTC were true, or were assumed to be true, RTCs contact

with Oklahoma would be so slight that forcing RTC to litigate this action in Oklahoma would be

unreasonable and inconsistent with the notions of fair play and substantial justice which form

the bedrock of the due process inquiry. Id.

II. ALTERNATIVELY, PLAINTIFFS CLAIMS AGAINST RTC SHOULD BEDISMISSED FOR FAILURE TO STATE A CLAIM.

Alternatively, RTC specially appears and moves for dismissal pursuant to Rule 12(b)(6).

The Complaint falls woefully short of stating a claim against RTC, in particular because it fails

to sufficiently allege that RTC engaged in any of the conduct at issue in this action.

Plaintiffs first four causes of action hinge on their contention that Defendants have

used NAFCs trademarks, logo and certifications, without authorization, to promote their

services to the public. ( See Compl. 260-91.) Based on this allegation, Plaintiffs assert the

following four claims:

First Claim: Federal trademark infringement ( Id. 260-70 (contending thatDefendants uses of NAFCs Mark, Logo and Certification on Defendantswebsites and in Defendants publications are unauthorized and constituteinfringement of Plaintiffs alleged federal trademark));

Second Claim: Common law trademark infringement ( id. 271-77 (citingDefendants unauthorized uses of NAFCs Certifications and Logo topromote their facilities and staff));

Third Claim: Federal infringement pursuant to 15 U.S.C. 1125 ( id. 278-83 (Defendants marketing, promotion, and offering of services while usingthe NAFC Certifications, Marks and Logo constitute false designations oforigin and false descriptions or representations that Defendants [sic] servicesare certified by NAFC and/or ACCFC when in fact they are not.)); and

Fourth Claim: Violation of right of publicity pursuant to 12 O.S. 1449 ( id. 284-91 (Defendants knowingly used NAFCs name and likeness for thepurposes of advertising, soliciting, and selling Defendants services to thepublic.)).



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Although Plaintiffs assert these claims generally against all Defendants, their

Complaint contains no allegation that RTC has ever used NAFCs Mark, Logo and

Certifications in any way. As noted above, RTC is conspicuously absent from the list of

Defendants with allegedly infringing websites and publications, which is set forth in paragraphs

116 through 242 and paragraph 250 of the Complaint. Moreover, the services promoted by the

alleged use of NAFC certifications and logo were not the services of RTC, which is not even

alleged to be the type of entity that might utilize the certifications and logo. In fact, the

Complaint merely identifies RTC as an entity holding the rights to use L. Ron Hubbards name

and writings . . . (Compl. 243), and not as a provider of drug treatment and rehabilitationservices. Thus, there is simply no allegation that RTC itself has utilized the mark, logos or

certifications of Plaintiffs to promote its own services. Because Plaintiffs do not allege that RTC

itself used their mark, certifications or logos, the first four causes of action in their Complaint fail

as a matter of law. See Kerber v. Qwest Group Life Ins. Plan , 647 F.3d 950, 959 (10th Cir.

2011) (to survive a motion to dismiss, the complaint must allege sufficient facts to make the

claim plausible on its face) (citation omitted)); Mandelbaum v. Fiserv, Inc. , 787 F. Supp. 2d

1226, 1234 (D. Colo. 2011) (In evaluating the plausibility of a given claim, the Court need not

accept conclusory allegations without supporting factual averments. (quoting S. Disposal, Inc.

v. Tex. Waste Mgmt. , 161 F.3d 1259, 1262 (10th Cir. 1998)).

Implicitly recognizing that they have alleged no wrongful conduct on the part of RTC,

Plaintiffs attempt to impose vicarious liability against RTC, with respect to their first through

fourth claims, under two theories: (1) that [u]pon information and belief, RTC . . . strictly

control[s] [Defendant] Narconon . . . . (Compl. 247); and (2) that RTC participated in a

scheme with the other Defendants to use the NAFC certifications to bolster the Narconon



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Network and its counselors in the public perception ( id. 249). This alleged scheme also

forms the basis for Plaintiffs fifth claim, for civil conspiracy. However, these theories are

supported only by conclusory allegations that fail to state a claim for relief against RTC.

First, Plaintiffs conclusory allegation based only on information and belief (Compl.

247) that RTC controls Narconon does not support a claim for relief against RTC.

Plaintiffs make no attempt to connect this stray, unsupported allegation to any legal theory of

vicarious liability ( e.g., agency, alter ego, etc.). Nor do they provide any examples of, or allege

any facts demonstrating, the alleged control. The Complaint thus fails to put RTC on notice of

the nature of any such claim against it and the facts supporting that claim. Accordingly,Plaintiffs control allegation does not provide the basis for a claim against RTC. See Bridges

v. Lane , 351 Fed. Appx. 284, 286 (10th Cir. 2009) (The burden is on the plaintiff to craft an

adequate complaint that contains enough factual allegations to state facially plausible claims for

relief and provide fair notice to defendants of the nature of the claims against them.); Robbins v.

Okla. , 519 F.3d 1242, 1249 (10th Cir. 2008) (noting that Bell Atlantic Corp. v. Twombly , 550

U.S. 544 (2007) requires enough allegations to give the defendants notice of the theory under

which [plaintiffs] claim is made).

Second, Plaintiffs have failed sufficiently to allege the existence of a conspiracy. In

Twombly , the Supreme Court held that to state a claim for antitrust conspiracy, a complaint must

provide enough factual matter (taken as true) to suggest than an agreement was made . 550

U.S. at 556 (emphasis added). The Court concluded

[A]n allegation of parallel conduct and a bare assertion of conspiracy willnot suffice [to render a conspiracy plausible]. Without more, parallelconduct does not suggest conspiracy, and a conclusory allegation ofagreement at some unidentified point does not supply facts adequate toshow illegality.



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This Court has applied the Twombly standard to a civil conspiracy claim like the one in this case.

Peterson v. Grisham , 2008 WL 4363653 (E.D. Okla. Sept. 17, 2008). In Peterson , the Court

held that the plaintiffs failed to state a claim for civil conspiracy where their complaint cited only

the defendants parallel conduct in publishing the books at issue in that case and contained no

allegation suggesting a preceding agreement by the defendants to write and publish these

books. Id. at *9.

As discussed above, Plaintiffs conspiracy allegations here are purely conclusory.

Although they repeatedly and summarily refer to an alleged scheme to promote the Narconon

network, they assert no facts showing that the alleged co-conspirators entered into an agreementto utilize Plaintiffs mark, logos and certifications. Moreover, although they arguably allege

parallel conduct among some Defendants (which, under Twombly, is insufficient to state a

conspiracy claim), they do not allege any parallel conduct by RTC. 3 Indeed, as shown above,

they do not even allege that RTC engaged in the allegedly wrongful conduct. Plaintiffs

conspiracy allegations against RTC constitute the type of bare assertions of conspiracy that the

Supreme Court and this Court have squarely rejected as a basis for a legally cognizable

conspiracy claim. Accordingly, Plaintiffs fifth claim for civil conspiracy as well as any

attempt to use the conspiracy allegation as a basis for imposing liability on RTC relating to the

first four causes of action involving conduct in which RTC is not alleged to have participated

fail as a matter of law.

3 Although Plaintiffs allege (Compl. 248) that during a Church event in Florida (2002)(discussed above) RTCs Chairman made false claims concerning certifications of NBAE which is alleged to have been a short-lived sub-board under NAFC ( id . 239) that wasdissolved in 1999 ( id . 240) and ceased to exist in any form in 2006 ( id . 241) the Complaintdoes not allege any facts showing that those allegedly false claims were made in furtherance ofthe alleged conspiracy to misuse Plaintiffs trademarks, logo or certifications. Indeed,Plaintiffs allege that the conspiratorial misuse (by Defendants other than RTC) of Plaintiffstrademark rights occurred years after the 2002 Church event. ( See id . 110-236).



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CONCLUSION

For the foregoing reasons, Defendant RTC should be dismissed from this action for lack

of personal jurisdiction. Alternatively, the Court should dismiss Plaintiffs claims against RTC

for failure to state a claim upon which relief can be granted.

Respectfully submitted,

/s/ David L. BryantDavid L. Bryant, OBA No. 1262David E. Keglovits, OBA No. 14259Amelia A. Fogleman, OBA No. 16221GABLEGOTWALS1100 ONEOK Plaza100 West Fifth StreetTulsa, Oklahoma 74103-4217(918) 595-4800ATTORNEYS FOR DEFENDANTRELIGIOUS TECHNOLOGY CENTER



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CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of July, 2014, I electronically transmitted the attacheddocument to the Clerk of Court using the ECF system for filing. Based on the records currentlyon file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECFregistrants:

David R. [email protected] L. [email protected] Ryan [email protected] Law Group, PLLC401 South Boston AvenueMid-Continent Building, 4th FloorTulsa, OK 74103

Attorneys for Plaintiffs National Association of Forensic Counselors, Inc.; American Academy of Certified ForensicCounselors, Inc.

Donald M. [email protected]. David [email protected]. Gregory [email protected] Abney Neal Turpen Orbison & Lewis502 West Sixth StreetTulsa, OK 74119

Attorneys for Defendant Narconon ofOklahoma, Inc.;

Derry Hallmark; Janet Watkins;Tom Widman; Vicki Smith;

Michael Otto; Michael J. Gosselin; Kathy Gosselin; Michael George; Kent McGregor; Dena G. Goad; Michael St. Amand; Gary W. Smith

John H. Tucker [email protected] H. [email protected] L. [email protected] R. [email protected] Hieronymus Jones Tucker & GableP.O. Box 21100Tulsa, OK 74121

Attorneys for Association for Better Living and Education International; Narconon International; Clark Carr

Richard P. [email protected] A. [email protected] & Taft, P.C.1717 South Boulder Avenue, Suite 900Tulsa, OK 74119

Attorneys for David S. Lee



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Charles D. Neal, [email protected] & NealP.O. Box 1165

McAlester, OK 74502 Attorney for Defendants Friends of Narconon International; Best Drug Rehabilitation, Inc.; A Life Worth Living, Inc.;Golden Millennium Productions, Inc.;

Joseph Guernaccini; Thomas Garcia; David S. Lee, III; Richard Hawk; Anthony Bylsma; Glen Petcavage; Narconon Freedom Center, Inc.; Jonathan Beazley;

Narconon Spring Hill, Inc.; Royalmark Management, Inc.; International Academy of DetoxificationSpecialists; Premazon, Inc.;

Jonathan Moretti; Luria K. Dion

Rachel D. [email protected] L. [email protected]

Steidley & Neal2448 East 81st Street, Suite 5300Tulsa, OK 74137

Attorneys for Defendant Friends of Narconon International; Best Drug Rehabilitation, Inc.; A Life Worth Living, Inc.;Golden Millennium Productions, Inc.;

Joseph Guernaccini; Thomas Garcia; David S. Lee, III; Richard Hawk; Anthony Bylsma; Glen Petcavage;

Narconon Freedom Center, Inc.; Jonathan Beazley; Narconon Spring Hill, Inc.; Royalmark Management, Inc.; International Academy of DetoxificationSpecialists; Premazon, Inc.;

Jonathan Moretti; Luria K. Dion

/s/David L. Bryant


nafc v. scientology: rtc's motion to dismiss

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