FILLED AUG 5 1996
f ICHAt D W
CLERK, US. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
4N JD L
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a NO. C-96-20271 RMW
California non-profit corporation,
ORDER GRANTING PLAINTIFF'S MOTION
Plaintiff, TO DISMISS COUNTERCLAIMS; DENYINC
DEFENDANT'S MOTIONS FOR SUMMARY
OR DECLARATORY JUDGMENT ON
CRIMINALITY OF NOTs 34 AND
WHETHER IT VIOLATES COURT ORDER,
FOR PRE-SCREENING OF PROPOSED
H. KEITH HENSON, an individual, "FAIR USE" POSTINGS, FOR EXPEDITFI)
DISCOVERY AND FOR ORDER FOR
Defendant. FILING AM US CURIAE BRIEF; AND
HOLDING UNDER SUBMlSSION
DEFENDANT'S MOTION TO MODIFY
PRELIMINARY INJUNCTION
Defendant Henson's ("Henson'1) motions for summary or
declaratory judgment on the '1criminality't of NOTS 34 and as to
whether NOTs 34 violates another district court's order, his motion to
modify preliminary injunction, motion for expedited discovery and
motion for an order allowing the filing of an amicus curiae brief and
plaintiff Religious Technology Center's ("RTC") motion to dismiss
counterclaims for failure to state a claim and lack of subject matter
jurisdiction
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were heard and submitted on August 2, 1996. The court has read the
moving and responding papers' and heard the argument of the parties.
For the reasons set forth below, the court denies Henson's motions for
summary or declaratory judgment on the "criminality" of NOTS 34 and as
to whether NOTs 34 violates another district court's order. The court
also denies Henson's motion for expedited discovery and his motion for
an order allowing the filing of an amicus curiae brief. The court
further grants RTC's motion to dismiss Henson's counterclaims pursuant
to 18 U.S.C. section 241, 42 U.S.C. section 1985(3) and for
intentional infliction of emotional distress. Finally, the court holds
under submission Henson's motion to modify the preliminary injunction.
I. BACKGROUND
RTC brought suit for copyright infringement and trade secret
violation against Henson alter he allegedly posted one of RTC's
unpublished copyrighted works, NOTs Series 34, on the Internet. In
addition to various affirmative defenses including fair use, copyright
misuse, unclean hands, estoppel and violation of public policy,
defendant counterdaimed for intentional infliction of emotional
distress and, under sections 18 U.S.C. section 241 and 42 U.S.C.
section 1985(3), for conspiracy to violate his First Amendment rights.
On April 12, 1996, this court issued a preliminary injunction
enjoining defendant from "directly or indirectly, in whole or in part,
publishing, reproducing, distributing, performing, or creating
derivative works based upon, [RTC's) Exhibit B Works,2 or any of them"
except for NO l s Series 1,24,31,34,35,36,38 and 42 for which fair use
under 17 U.S.C. section 107 is permitted.
Henson did not file either an opposition or a statement of
non-opposition to RTC's motion to dismiss counterclaims. Moreover,
Henson did not file a memorandum of points and authorities in support
of the various motions which he brought.
2 Exhibit B includes the NOTs Series numbers I through 3, 4 with two
attachments, 5-8, 9R, 10-25, 26R, 27, 28 with one affachment, 29-54,
and HCOB 22 DEC 1979 reissued 20 SEPT 1980 (QUAL CORRECTIVE ACTIONS ON
OTS SERIES 29), all of which are purportedly protected under copyright
registration number TXu 257 326 as unpublished works.
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Defendant now seeks summary or declaratory judgment on the
criminality of NOTs 34 and that it violates a court order. He further
seeks modification of the preliminary injunction to allow him to
communicate with law enforcement about the criminality of RTC's NOTs
Series and Advanced Technology ("AT") materials. Specifically,
defendant contends that "the contents of NOTs 34 clearly contains
instructions for the illegal practice of medicine" and that as such it
violates an order of Judge Gesell which allegedly "forbids the Church
of Scientology and all related organizations from claiming to heal
using an 'E-meter."'
Defendant also moves to file an amicus curiae brief in RTC's
suit against Grady Ward, C-96- 20207 RMW, which is currently pending
before this court and moves for expedited discovery since "[s]ome of
the records defendant will be seeking, particularly certain computer
records, may expire and become non-available if defendant is not
permitted expedited discovery."
RTCs move to dismiss defendant's counterclaims for failure to
state a claim and for lack of subject matter jurisdiction.
II. RTC'S MOTION TO DISMISS
A. Legal Standard
The court may dismiss a complaint as a matter of law for
either of two reasons: (1) lack of a cognizable legal theory, or (2)
the pleading of insufficient facts under a cognizable legal theory.
Robertson v. Dean Witter Revnolds Inc., 749 F.2d 530, 533 (9th Cir.
1984). In ruling on a motion to dismiss, district courts must accept
all material allegations of fact alleged in the complaint as true and
resolve all doubts in favor of the plaintiff. Blake V. Dierdorff, 856
F.2d 1365, 1368 (9th Cir. 1988). However, the court need not accept as
true legal conclusions cast in the form of factual allegations if such
conclusions cannot be reasonably drawn from the facts alleged;
similarly, the court need not accept unreasonable inferences or
unwarranted deductions of fact. Western Minin Council v. Watt, 643
F.2d 618, 624 (9th Cir. 1981), cert. denied, 454 U.S. 1031(1981);
Dubbs V.
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769 F. Supp. 1113, 1115 .D. Cal. 1990). The
court is to grant the motion to dismiss if it
appears that plaintiffs can prove no set of facts which would entitle
plaintiffs to relief. Sun Savings & Loan Assoc. v. Dierdorfi, 825 F.2d
187, 191(9th Cir. 1987).
B. Analysis
RTC seeks dismissal of defendant's counterclaims for
conspiracy to violate his First Amendment rights in violation of
sections 18 U.S.C. section 241 and 42 U.S.C. section 1985(3) and for
intentional infliction of emotional distress.
RTC argues that Henson's 18 U.S.C. section 241 claim is
incurably flawed since section 241 is exclusively a criminal statute
that neither creates a private right of action nor any civil
liability. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The
court agrees and therefore, grants RTC's motion to dismiss this
counterclaim.
RTC also contends that Henson's 42 U.S.C. section 1985(3) is
fatally flawed. 42 U.S.C. section 1985(3) "has been construed to
require a racially or otherwise 'invidiously discriminatory animus'
behind the conspirator's action." Ld. (citin Griffin v. Breckenridge,
403 U.S. 88, 102 (1971). RTC alleges that Henson has not and cannot
allege such invidiousness. Moreover, "[aj
1985(3) private conspiracy 'for the purpose of depriving. . . any
person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws,' requires an intent to
deprive persons of a right guaranteed against private impairment."
Brav v. Alexandria Women's Health Clinic, 113 S.Ct. 753, 762 (1993).
Henson does not allege an intent to deprive such a right. Henson's
section 1985(3) claim is based on the First Amendment. The First
Amendment only restrains official conduct, therefore, to state a
section 1985(3) claim on this basis Henson would have to allege state
involvement. United Brotherhood of Carpenters & Joiners Local 610 v.
Scott, 463 U.S. 825, 833 (1983). Henson has not made such an
allegation. Consequently, RTC argues that Henson's section 1985(3)
counterclaim is incurably flawed. The court agrees and therefore
grants
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RTC's motion to dismiss this counterclaim.
Finally, RTC argues that Henson's counterclaim for intentional
infliction of emotional distress does not arise from the transactions
or occurrences which form the basis for plaintift ' complaint and
therefore it is a permissive counterclaim for which no basis exists
for federal jurisdiction. RTC contends that its "[c]omplaint focuses
exclusively on discreet violations of RTC s intellectual property
rights through unauthorized Internet postings of copyrighted and trade
secret materials. By contrast, Henson's counterclaim purports to
assert infliction of emotional distress arising principally from RTC's
following of decades-old 'scriptural instructions' [cite], together
with conclusory allegations of defamation and a panoply of allegedly
tortious conduct in no way linked to Henson1s copyright infringement
or trade secret misappropriation." RTC argues, therefore, that since
the transactions or occurrences of its complaint "are discrete
violations of the federal Copyright Act and the California Uniform
Trade Secrets Act," they are wholly unrelated to Henson's emotional
distress counterclaim, a state tort law claim. The court agrees to
some extent. Henson's claim appears to a large extent to be a claim
for malicious prosecution, invasions of privacy, and infliction of
emotional distress. Admittedly, Henson claims that the alleged conduct
has been motivated by plaintiffs attempt to silence its critics.
However, the subject matter is really separate from the legal and
factual questions concerning whether RTC's materials are subject to
copyright and trade secreF protection and whether, if they are,
defendant has violated those rights. Therefore, the court 1 ils to see
a basis for federal jurisdiction for these tort claims. Defendant, of
course, is free to pursue the se claims in the appropriate state
court.3
III. HENSON'S MOTIONS
Defendant seeks summary or declaratory judgment on the
criminality of NOTs 34.
A malicious prosecution action, of course, must await
a favorable termination of the prosecution on which it is based.
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Defendant alleges that NOTs 34 and at least three other NOTs issues,
which were posted on the Internet by someone else on or about May 6,
1996, contain instructions for the illegal practice of medicine.
Defendant also seeks summary or declaratory judgment that because NOTs
34 contains such instructions it is in violation of an order rendered
by Judge Gesell in United States v. An Article or Device "Hubbard
Electrometer." et al., 333 F. Supp. 357 (D.D.C. 1971) ("Gesell
Order"), which "forbids the Church of Scientology and all related
organizations from claiming to heal using an 'E-meter."'
RTC contends that Henson's requests for a ruling on the
criminality of NOTs 34 and whether it violates the Gesell Order should
be denied as they are "requests [for] an advisory opinion unrelated to
any relief Henson seeks or possibly could seek in this case." Henson
has not provided any facts or arguments which explain how the rulings
he seeks relate to the present action. Therefore, it appears that
Henson is seeking advisory opinions which the court has no
constitutional authority to render. Defendant's motion for summary or
declaratory judgment of the criminality of NOTs 34 and whether it
violates the Gesell Order is therefore denied without prejudice to his
reasserting it if he can show that it presents an actual case or
controversy between the parties which is related to the present
action.
Defendant also seeks to modify the preliminary injunction
entered against him to allow him to "communicat[e] . . . with law
enforcement agents about criminal matters found in 'NOTs' or
materials." The only specific NOTs document which defendant claims
contains criminal material is NOTs 34. Fair use of that document is
permitted under the preliminary injunction as originally issued.
Therefore, the court does not believe that defendant is prohibited
from making appropriate communication with regulatory or law
enforcement agencies about his concerns.
Defendant further seeks to modify the preliminary injunction
"to permit [him] to responsibly exercise his First Amendment rights
and to better defend himself in the pendant case." He requests
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permission to "access (download) and store, but not distribute,
publicly available NOTs or other A l ' material both in the context of
preparing defendant's case and for fair use commentary." l}e further
offers to file his proposed fair-use commentary with the court for
pre-screening ten days before he intends to post it and to limit such
pre-screenings to three a month.
The court holds defendant's motion to modify the preliminary
injunction under submission. A ruling will be forthcoming in due
course. The court, however, rejects defendant's suggestion that it
pre-screen up to three proposed "fair use" postings a month for the
defendant. If defendant is uncertain as to whether his proposed
activities violate this court's injunction as it currently exists or,
if the injunction is ultimately modified, the injunction as modified,
he should seek competent legal advice. The court does not and cannot
render him legal advice.
Furthermore, defendant seeks expedited discovery alleging that
certain computer records he may need in his defense may 'expire and
become non-available." RTC argues that expedited discovery is
inappropriate since they have sought dismissal of Henson's
counterclaims as entirely
meritless, but such argument ignores the fact that Henson's defense
against plaintiffs' claims includes more than just his counterclaims.
The motion is unnecessary. At the case management conference on August
2, 1996, the court ordered that discovery could go forward following
the holding of a discovery conference with the assigned magistrate
judge.
Defendant also requests permission to file an amicus curiae
brief in RTC v. Ward, C96-20207 RMW. Defendant did not provide a copy
of his planned amicus curiae brief but states that it "will contain a
copy of defendant's readdressed March 26 letter."4 If defendant wishes
to le an amicus brie{ he should provide a copy of the brief with his
request for its consideration. Further, the request must be made in
the Ward case, as that is where defendant proposes that it be
considered.
Defendant states that he sent this court a letter on
March 26, 1996 that included the substance of NOTs 34, but that he
should have sent this letter to the FDA.
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IV. ORDER
For the foregoing reasons, the court orders as follows:
Henson's motions for summary or declaratory judgment on the
"criminality" of NOTs 34 and whether NOTs 34 violates the Gesell Order
are denied.
2. Henson's proposal to have this court pre-screen his planned
"fair use" postings of RTC materials is denied.
3. Henson's motion for expedited discovery is denied as the
order it seeks is no longer necessary.
4. Henson's motion for an order allowing the filing of an
amicus curiae brief in Ward is denied without prejudice to his
refiling this motion in accordance with this order.
5. RTC's motion to dismiss defendant's counterclaims pursuant
to 18 U.S.C. section 241 and
42 U.S.C. section 1985(3) is granted with prejudice and RTC's motion
to dismiss Henson's counterclaim for intentional infliction of
emotional distress is granted without prejudice to refiling in the
proper court.
6. Finally, Henson's motion to modify the preliminary
injunction is held under submission pending further consideration.
DATED: _______
RONALD M. WHYTE
United States District Judge
Copy of Order mailed on AUG 5 to
Thomas R. Hogan
Law Offices of Thomas R. Hogan
60 South Market Street, Suite 1125
San Jose CA 95113-2332
Ilelena K. Kobrin
7629 Fulton Avenue
North Hollywood CA 91605
Eric M. Lieberman
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.
740 Broadway - Fifth Floor
New York NY 10003
Roger M. Mugrim
William M. Hart
James W. Kennedy
Paul, Hastings, Janofsky & Walker
399 Park Avenue
New York NY 10022
Attorneys for Plaintiffs
H. Keith Henson
799 Coffey Court
San Jose CA
Defendant, in propria persona
Randolfj. Rice
The Genesis Law Group, LLP
160 West Santa Clara Street, Suite 1300
San Jose CA 95113
Robert P. Taylor
Barbara R. Shufro
Melissa A. Burke
Pillsbury, Madison & Sutro LLP
Ten Almaden Blvd.
San Jose CA 95113-2226
Attorneys for Defendant Netcom On-Line Communication Services
in related case
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Liarold J McElhinny
Carla Oakley
Morrison & Foerster
345 California Street
San Francisco CA 94104-2675
Attorney for Defendant Dennis Erlich in related case
Daniel Leipold
Hagenbaugh & Murphy
701 South Parker St., Suite 8200
Orange CA 92668
Attorneys for Defendant Tom Klemesrud in related case
Grady Ward
3349 Martha Court
Areata CA 95521
Defendant, in propria persona in related case
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