NO.

03-14-00091-CV IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
______________

IN RE DAVID MISCAVIGE AND RELIGIOUS TECHNOLOGY CENTER, RELATORS

______________

FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING

RESPONSE OF REAL PARTY IN INTEREST MONIQUE RATHBUN

PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP Elliott S. Cappuccio State Bar No. 24008419 ecappuccio@pulmanlaw.com Leslie Sara Hyman State Bar No. 00798274 lhyman@pulmanlaw.com Etan Z. Tepperman State Bar No. 24088514 etepperman@pulmanlaw.com Suite 400 2161 NW Military Highway San Antonio, Texas 78213 (210) 222-9494 Telephone (210) 892-1610 Facsimile JEFFREY & MITCHELL, P. C. Ray B. Jeffrey State Bar Number 10613700 rjeffrey@sjmlawyers.com A. Dannette Mitchell State Bar Number 24039061 dmitchell@sjmlawyers.com 2631 Bulverde Road, Suite 105 Bulverde, Texas 78163 (830) 438-8935 Telephone (830) 438-4958 Facsimile THE WIEGAND LAW FIRM, P. C. Marc F. Wiegand State Bar No. 21431300 marc@wiegandlawfirm.com Suite 2201 434 North Loop 1604 West, San Antonio, Texas 78232 (210) 998-3289 Telephone (210) 998-3179 Facsimile

ORAL ARGUMENT REQUESTED

NO. 03-14-00091-CV IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS ______________ IN RE DAVID MISCAVIGE AND RELIGIOUS TECHNOLOGY CENTER, RELATORS ______________ FROM THE 207TH JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS CAUSE NO. C2013-1082B, HON. DIB WALDRIP, PRESIDING ______________ IDENTITY OF PARTIES AND COUNSEL Relators: David Miscavige Religious Technology Center Appellate Counsel for Relators: Wallace B. Jefferson Rachel A. Ekery Alexander Dubose Jefferson & Townsend, LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Lamont A. Jefferson Ben L. Mesches Haynes and Boone, LLP 112 East Pecan Street, Suite 1200 San Antonio, Texas 78205-1540

Real Party in Interest: Monique Rathbun

Counsel for Real Party in Interest: Elliott S. Cappuccio Leslie Sara Hyman Etan Z. Tepperman Pulman, Cappuccio, Pullen, Benson & Jones, LLP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 Ray B. Jeffrey A. Dannette Mitchell Jeffrey & Mitchell, P. C. 2631 Bulverde Road, Suite 105 Bulverde, Texas 78163 Marc F. Wiegand The Wiegand Law Firm, P.C. 434 North Loop 1604 West, Suite 2201 San Antonio, Texas 78232

Respondent: The Honorable Dib Waldrip Judge, 207th Judicial District Court Comal County Courthouse 150 N. Seguin, Suite 317 New Braunfels, Texas 78130

ii

TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ...........................................................................i TABLE OF CONTENTS ................................................................................................ iii INDEX OF AUTHORITIES..............................................................................................iv STANDARD OF REVIEW................................................................................................1 INTRODUCTION ............................................................................................................3 STATEMENT OF FACTS.................................................................................................6 ARGUMENT ...............................................................................................................13 I. II. Relators Arguments Regarding Apex Depositions are Inapposite ................. 13 Cases Holding That a Trial Court Did Not Abuse Its Discretion in Denying Jurisdictional Discovery are Inapposite ...... 23

III. Relators Case Law and Argument Regarding the First Amendment are Inapposite ................................................................26 CONCLUSION AND PRAYER .......................................................................................31 CERTIFICATE OF COMPLIANCE ..................................................................................34 RULE 52.3(J) CERTIFICATION ....................................................................................35 CERTIFICATE OF SERVICE ..........................................................................................35 APPENDIX: Tab 1: Texas Rule of Civil Procedure 120a

iii

INDEX OF AUTHORITIES Cases Page

Am. Broad. Cos. v. United States Info. Agency, 599 F. Supp. 765 (D.D.C. 1984) .........................................................................22 Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943 (Tex. Civ. App.Texarkana 1977, no writ) ...........................19 Barron v. Vanier, 190 S.W.3d 841 (Tex. App.Fort Worth 2006, no pet.).......................23, 24, 25 Baldwin v. Household Intl, Inc., 36 S.W.3d 273, 277 (Tex. App.Houston [14th Dist.] 2001, no pet.) ............. 29 Borden, Inc. v. Valdez, 773 S.W.2d 718 (Tex. App.Corpus Christi 1989, orig. proceeding).............. 28 Church of Scientology Intl v. Behar, 238 F.3d 168 (2d Cir. 2001) ................................................................................. 5 Clinton v. Jones, 520 U.S. 681 (1997) ............................................................................................14 Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995) ........................................................................13, 17 Exito Elecs. Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004) ................................................................................ 1 In re Alcatel USA, Inc., 11 S.W.3d 173 (Tex. 2000).................................................................................16 In re Johnston, 2010 Tex. App. LEXIS 8165 (Tex. App.Texarkana, orig. proceeding) ......... 29 In re Sara Steed, 2008 Tex. App. LEXIS 3652 (Tex. App.Austin 2008, orig. proceeding), mand. denied, 255 S.W.3d 613 (Tex. 2008) .......................................................27 iv

In re Texas Dept of Family and Protective Servs., 255 S.W.3d 613 (Tex. 2008) ..............................................................................28 In re Titus County, 412 S.W.3d 28 (Tex. App.Texarkana 2013, orig. proceeding) ......................14 Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) ................................................................................ 1 Kollision King v. Calderon, 968 S.W.2d 20 (Tex. App.Corpus Christi 1998, no pet.) ...............................14 Lamar v. Poncon, 305 S.W.3d 130 (Tex. App.Houston [1st Dist.] 2009, pet. denied) .............1, 2 Meyer v. Tunks, 360 S.W.2d 518 (Tex. 1962) ..............................................................................28 Michiana Easy Livin Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005) ..............................................................................30 Moncrief Oil Intl, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013) ..............................................................................26 Morris Indus. v. Trident Steel Corp., 2010 Tex. App. LEXIS 8958 (Tex. App.Houston [1st Dist.] 2010, no pet.) ... 1 Mt. McKinley Ins. Co. v. Grupo Mex., 2013 Tex. App. LEXIS 4804 (Tex. App.Corpus Christi 2013, no pet.) (mem. op.) ...........................................................................................................25 Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130 (S.D.N.Y. 1997) ........................................................................22 OBryan v. Holy See, 2010 U.S. Dist. LEXIS 32842 (W.D. Ky. 2010) ................................................15 Religious Technology Center v. Scott, 1996 U.S. App. LEXIS 8954 (9th Cir. 1996) ....................................................... 5

Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 145 F.R.D. 92 (S.D. Iowa 1992) .........................................................................22 Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) ............................................................................................27 Simon v. Bridewell, 950 S.W.2d 439 (Tex. App.Waco 1997, orig. proceeding) ......................13, 14 Smithson v. Cid, 2011 Tex. App. LEXIS 7910 (Tex. App.Corpus Christi Sept. 29, 2011, no pet.) ................................................................................................................19 State v. Mink, 900 S.W. 2d 779 (Tex. App.Austin 1999, pet. denied) ..................................14 Stewart & Stevenson Servs. v. Serv-Tech, 879 S.W.2d 89 (Tex. App.Houston [14th Dist.] 1994, writ denied) ............... 19 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ................................................................................ 1 Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538 (Tex. App.Houston [14th Dist.] 2003, no pet.) ................... 19 Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2006) ........................................................................28, 30 Wollersheim v. Church of Scientology of California, 212 Cal. App. 3d 872 (Cal. Ct. App. 1989) ........................................................30

Statutes and Rules Texas Civil Practice & Remedies Code 27.001, et seq. ......................................... 4 Texas Rule of Civil Procedure 120a ........................................................1, 24, 25, 29

vi

Other Authorities S.I. Strong, Jurisdictional Discovery in United States Federal Courts, 67 Wash. & Lee L. Rev. 489, 497 (2010)...........................................................24

vii

STANDARD OF REVIEW In order to show entitlement to mandamus relief, Relators must demonstrate a clear abuse of discretion by the trial court that cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court has clearly abused its discretion only if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. (quoting Johnson v.

Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Where, as here, the question of whether to allow discovery is one committed to the trial courts discretion, a showing of a clear abuse of discretion requires Relators to establish their positionthat Mr. Miscavige is not amenable to a deposition on jurisdiction factswas the only decision the trial court could reasonably have reached. Id. It does not matter that this Court might have reached a different decision; the Court cannot disturb the trial courts decision unless it is shown to be arbitrary and unreasonable. Id. Jurisdictional discovery is a vital part of resolving a special appearance. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 307 (Tex. 2004); see also Morris Indus. v. Trident Steel Corp., 2010 Tex. App. LEXIS 8958 (Tex. App.Houston [1st Dist.] 2010, no pet.); Lamar v. Poncon, 305 S.W.3d 130, 139 (Tex. App. Houston [1st Dist.] 2009, pet. denied). For this reason, pursuant to Texas Rule of Civil Procedure 120a(3), when a party cannot for reasons stated present by

affidavit facts essential to justify [an] opposition [to a special appearance] the [trial] court may order a continuance to permit . . . depositions to be taken or discovery to be had or may make such other orders as are just. A trial courts orders concerning jurisdictional discovery are reviewed for an abuse of discretion. Lamar, 305 S.W.3d at 139 (holding that notwithstanding defendants affidavit denying certain contacts with Texas, trial court abused its discretion in denying jurisdictional discovery).

INTRODUCTION Defendants in the underlying suit have engaged in a years-long campaign of harassing Plaintiff and Real Party in Interest Monique Rathbun and making her life miserable merely because she fell in love with a man who turned out to be a former Scientologist. While the campaign against Mrs. Rathbun was physically conducted in Texas, it was orchestrated by Relators here

David Miscavige, Scientologys

leader, and the organization that he runs, the Religious Technology Center (RTC). The record demonstrates that such a campaign would not, and could not, have been conducted without Mr. Miscaviges personal input and direction. When Mr. Miscavige filed a special appearance, Mrs. Rathbun sought to take his deposition to examine him on jurisdictional facts, including his control over the operation against her. appropriate. Relators do not even attempt to show how the trial court reached a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. They fail to cite a single case holding that a trial court abused its discretion by ordering a named defendant to sit for a jurisdictional deposition. Instead, Relators spend much of their Petition discussing a media-driven religious or ecclesiastical dispute between the Church of Scientology and Mrs. Rathbuns husband, Marty Rathbun. Mrs. Rathbun does not deny that her 3 The trial court agreed that such a deposition was

husband and the Church have had disagreements about Mr. Miscaviges behavior as the leader of the Church. Unfortunately for Relators position before this Court, and notwithstanding their 99 uses of forms of the terms religion and ecclesiastic, this case is not about a religious dispute. Rather, this case is about a years-long harassment campaign against Mrs. Rathbun that involved covert and overt surveillance. photographing, videotaping, and following her. It involved

Church-hired private

investigators visited Mrs. Rathbuns parents, friends, former husband, and co-workers. Although acting under ex-post-facto claims of investigating alleged intellectual property infringement, the investigators did not ask questions; they made statements. They told Mrs. Rathbuns parents that her husband was violent, that his mother had committed suicide, that his brother was institutionalized, and that she was in danger. These same statements were repeated to Mrs. Rathbuns friends, former husband, and co-workers. This case is not about religion or a religious dispute. It is about stopping the stalking, stopping the harassment, and holding those responsible accountable. Rather than fight the suit on the merits, Relators and their co-defendants have resorted to calculated procedural hurdle after procedural hurdle. Defendant Church of Scientology International (CSI) and other Defendants filed motions under the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code 27.001, et seq.

(Anti-SLAPP Motion), then fought against the discovery authorized by the Act and failed to comply with the discovery requests even after the trial court ordered them to do so. March 14, 2014. Likewise, Relators filed special appearances with supporting affidavits and then Mr. Miscavige refused, and continues to refuse, to appear for deposition.1 Relators attempt to prematurely delve into the merits of the case and the merits of their special appearances in efforts to distract this Courts attention from the only issue before it whether the trial court abused its discretion in ordering Mr. Miscavige to sit for a deposition on jurisdictional facts. The answer is clear. There was no abuse of discretion. The trial court denied Defendants Anti-SLAPP Motion on

These misuses of litigation procedure are nothing new to Scientology. See, e.g., Religious Technology Center v. Scott, 1996 U.S. App. LEXIS 8954 (9th Cir. 1996) (discussing the 1,825 docket entries and nine years of pretrial litigation involving three discovery magistrates, a special master, the recusal of two district court judges, the denial of five petitions for writ of mandamus, three appeals . . . and three denials of certiorari by the Supreme Court that occurred prior to the final judgment); see also Church of Scientology Intl v. Behar, 238 F.3d 168 (2d Cir. 2001) (affirming, after two and a half years of discovery, dismissal of Church of Scientology slander suit against author of Time magazine article, which claimed that even lawyers and judges who criticize the church often find themselves . . . framed for fictional crimes, beaten up or threatened with death).

STATEMENT OF FACTS Real Party in Interest Monique Rathbun has never been a member of the Church of Scientology. MR 256. Her only relationship to Scientology is her marriage to Mark (Marty) Rathbun, a prominent former Scientologist. In 2004, prior to their marriage, Mr. Rathbun escaped from Scientologys secretive, secure compound in the California desert, and made his way to South Texas, where for a time he lived in anonymity and relative seclusion. MR 4. For several years, Mr. Rathbun kept quiet about his experiences within Scientology and the abusive environment created by the leader of Scientology, Defendant David Miscavige. MR 4. In 2009, Mr. Rathbun chose to speak out against the mistreatment of Scientologists, and the environment of fear created by Miscavige.2 MR 256. Mrs. Rathbuns only public statements about Scientology, on the other hand, relate to the misconduct made the subject of this suit or the ensuing litigation. Id. Nevertheless, Defendants CSI, RTC, and Miscavige, through agents and contractors including Defendants David Lubow, Monty Drake and Greg Sloat, undertook extensive surveillance of Mrs. Rathbun and her husband over a period of

This limited information about Mr. Rathbun is offered solely to provide context for the facts that follow. Contrary to Relators description, this case is not about Mr. Rathbun or any legitimate dispute that the Church of Scientology may have with him. By declining to engage with Relators on irrelevant facts, however, Mrs. Rathbun does not intend to concede the facts as Relators describe them are accurate. By way only of example, it is not true that Mr. Rathbun was demoted in 2003, he did not launch a media campaign against Scientology, and he does not use Scientologys trademark protected materials or technology.

more than four years. Marty Rathbun in 2007.

MR 256-59. MR 2097.

Monty Drake first began investigating He claims to have been investigating

Mr. Rathbun since 2009 for potential Scientology trademark violations. MR 904. David Lubow has likewise stated he is a private investigator and filmmaker and was hired by CSIs attorney Elliot Abelson to investigate Mr. Rathbun in support of prospective litigation regarding his alleged violations of intellectual property rights owned by CSI. MR 882-83. While Defendants claim that certain of the complained of activity involved investigating alleged infringement of intellectual property rights, neither CSI nor RTC have ever sent Mr. or Mrs. Rathbun a cease and desist letter and neither has ever sued the Rathbuns for infringement or any other cause of action. SMR 11.3 Certain of the activity Mrs. Rathbun complains of was conducted by persons calling themselves the Squirrel Busters. MR 136-40. Defendant CSI admits that it sponsored the Squirrel Busters by providing legal and financial support. MR 784-85. Due to the constant video surveillance, Defendants knew when Mrs. Rathbun left home and when she was home alone due to her husband having left their residence. MR 3894-95. Mrs. Rathbun was visited at home on several occasions when her husband was out of town. MR 10-11.

Cites to SMR are to the Supplemental Mandamus Record filed together with this response.

Mrs. Rathbun was followed to and from work. MR 3890. She was followed to and from restaurants. MR 3891. She was followed to and from shopping. MR 3896. She was followed while walking her dog. MR 3892. For several months, when the Rathbuns left their home, the Squirrel Busters group appeared in a golf cart to confront the Rathbuns with video cameras and taunts. MR 4019. The Rathbuns were followed even when they took measures to avoid being seen leaving their house. MR 3894. Defendant Lubow confronted and harassed Mrs. Rathbuns family, friends, and co-workers. MR 3841-57. Defendants agents or contractors even appeared at Mrs. Rathbuns place of work to confront her, including outside the ladies room. MR 3896. A videographer named Bert Leahy was hired for the Squirrel Busters group. MR 3875. He was told by Lubow that Lubow had two private investigators who were engaged in surveillance of the Rathbuns and were able to keep track of Mrs. Rathbuns movements on a 24/7 basis. MR 3929. Leahy was also told that the purpose of the Squirrel Busters mission was to make the Rathbuns life a living hell and to turn their neighbors against them so that Mrs. Rathbun and her husband would be forced from their residence. Id. Defendants created numerous websites, which they used to spread disinformation about the Rathbuns and to make false and derogatory statements

about Mrs. Rathbun, including that she was hypnotized, was a sex deviant, was a man with a sex change operation, and other ridicule, including racial slurs. MR 4033. Defendants published information from their continuous surveillance of the Rathbuns on a website, which included a section called Spy Corner that discussed information obtained by the surveillance of the Rathbuns. Id. Unable to withstand the harassment, embarrassment, disruption, and extreme distress imposed on her in the workplace, Mrs. Rathbun gave notice on April 1, 2011, that she would leave her job at the end of the month. MR 3893-94. In October 2012, the Rathbuns discovered surveillance cameras aimed at their residence from a house across the cul-de-sac. MR 3894. The Rathbuns sought to escape from the constant harassment and electronic surveillance in Ingleside on the Bay by moving to a secluded homesite in Bulverde, Texas. MR 3893. Despite the Rathbuns using their best efforts to avoid Defendants, Scientology agents resumed tailing the Rathbuns in Bulverde and San Antonio. MR 3896. The Rathbuns discovered high-tech surveillance cameras in the woods behind their home in Bulverde. MR 3895-96. Defendant Sloat admits to placing these cameras. MR 3848. The cameras were the last straw. Mrs. Rathbun filed suit seeking injunctive relief against the harassment and raising various tort claims. MR 1873-91.

Relators filed special appearances. MR 85-124. Mrs. Rathbun promptly noticed the depositions of several defendants (including Mr. Miscavige) and moved to continue the special appearance hearing. MR 233-35, 1041-67. Relators objected to the deposition of David Miscavige. MR 279-84. The trial court first granted a continuance to allow for jurisdictional discovery on September 13, 2013. MR 636-37. At the trial courts suggestion, the parties were to use an

incremental approach to jurisdictional discovery. MR 629-30, 632. The trial court also requested that the parties agree on an initial discovery plan. MR 629-30, 639. After completing the initial jurisdictional discovery, any party requiring additional discovery could request such from the trial court. MR 639. On December 2, 2013, Mrs. Rathbun did just that. She filed a Motion to Compel and Continuance of Special Appearance Hearing. MR 1498-1504.

In support of the second request for a continuance and to compel discovery, Mrs. Rathbun presented the affidavits of her counsel, Ray Jeffrey, and her husband. MR 1505 (incorporating MR 260-65), 1862-64. Mr. Jeffrey stated that the corporate representatives of RTC, Warren McShane, and CSI,

Allan Cartwright, knew little or nothing about Mr. Miscaviges activities or whereabouts. MR 1863. Mr. Rathbun stated from his personal experience that Mr. Miscavige has a habit of micromanaging Scientology matters, issued daily orders based on tape recordings of his daily comments recorded by assistants, and

10

micromanaged defendant CSIs Office of Special Affairs (which handles intelligence matters for Scientology), and that Mr. Rathbun personally delivered reports from Defendant Monty Drake to Mr. Miscavige. MR 263-66. Mrs. Rathbun presented 17 other affidavits, including: The affidavit of Mark Headley, who stated Captain Miscaviges habit of micromanagement of Scientology operations and corporations is well known throughout the upper ranks of the Sea Org. It is the longtime, routine practice of Sea Org personnel to follow instructions and orders from Captain Miscavige, regardless of which Scientology corporation employs them. There is no one in the Sea Org who may disobey a directive from Captain Miscavige. MR 2681. The affidavit of Claire Headley, who stated that anyone who questioned the authority of Mr. Miscavige over all aspects of Scientology was severely ostracized and punished and that Mr. Miscavige could, and did, command all Scientology operations and corporations through his subordinates in the Sea Org. MR 2677. The affidavit of John Brousseau, who stated that Mr. Miscavige could, and did, command all Scientology operations and corporations through his subordinates in the Sea Org [which was] his longtime, routine habit and that Mr. Miscavige would write or dictate orders and that the

11

dictated orders would be typed up and issued as orders to various people in the Sea Org, regardless of corporation. MR 2657-58. At the hearing on her request for continuance and to compel, Mrs. Rathbun introduced evidence of Relators incomplete and evasive discovery responses and selective document production. MR 2819-45, 3001-23, 3025-257. Even though its document production was purposefully selective and generally unhelpful, RTC did produce one document showing some investigatory interest in Mr. Rathbun.4 MR 3199. The trial court granted the motion for continuance and to compel, and issued an order December 13, 2013. MR 2599. Relators then filed a Motion for

Clarification and to Reconsider Order Granting Continuance and Discovery on Jurisdiction. MR 3376-3512. The trial court declined the invitation to reconsider the substance of its prior order and entered a new order granting the continuance and compelling the requested discovery. MR 5009-10. This mandamus followed. During the pendency of this mandamus, the trial court issued an order denying the Anti-SLAPP Motion filed by CSI and other Defendants. SMR 1-25. Many of the facts recited herein were contained within the trial courts findings of fact and conclusions of law in that order.
This document is important because it is counter to RTCs unwavering position throughout this litigation that it has absolutely nothing to do with investigating Mr. Rathbun. See, e.g., MR 1800-53, 2566-67. According to RTC, only CSI, a separate corporate entity, is investigating Mr. Rathbun. MR 1828-31, 2566-67, 2581-821.
4

12

ARGUMENT Relators have failed to show that the trial court abused its discretion in ordering a named defendant to appear for a jurisdictional deposition. As a named defendant, Mr. Miscavige is not entitled to the extra protections required for an apex deposition and in any event, Mrs. Rathbun met the requirements for an apex deposition. Because the trial court has not yet heard Relators special appearances, it is premature for Relators to argue that Mrs. Rathbun has not established personal jurisdiction over them. Finally, whatever effect the First Amendment may have on the ultimate resolution of the special appearances or the merits of this case, nothing about religious freedom precludes the taking of Mr. Miscaviges deposition. Mandamus relief is therefore unavailable. I. RELATORS ARGUMENTS REGARDING APEX DEPOSITIONS ARE INAPPOSITE Relators first argument is that the requirements for an apex deposition apply and have not been satisfied. Petition at 14-20. An apex deposition is a deposition of a corporate officer at the apex of the corporate hierarchy. Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 127 (Tex. 1995). Despite framing the issue before the court as whether a party may circumvent apex deposition impediments merely by suing the apex leader, Petition at xxi, Relators make no effort whatsoever to argue this point. Perhaps this is because existing law is to the contrary. In Simon v. Bridewell, 950 S.W.2d 439 (Tex. App.Waco 1997, 13

orig. proceeding), two individual defendants claimed that they were protected from deposition by the apex doctrine. Id. at 441. The court rejected their argument for several reasons including that the apex doctrine does not protect named parties. Id. at 443; see also In re Titus County, 412 S.W.3d 28, 35 (Tex. App.Texarkana 2013, orig. proceeding) (holding that the apex doctrine does not protect named parties from deposition, conditionally granting petition for writ of mandamus, and instructing the trial court to vacate an order granting a motion to quash the deposition notice of a named party). Relators do not cite a single case holding that apex protections are available to a party simply because he is at the apex of an organization. This is hardly surprising. Just as an entitys leader may be held responsible for his own torts,5 an entitys leader may be deposed when his own torts are at issue. Simon, 950 S.W.2d at 442 (A corporate officer is not exempt from deposition by the apex doctrine merely because he is a corporate official.). As the United States Supreme Court has recognized, even the President of the United States is subject to judicial process. See Clinton v. Jones, 520 U.S. 681, 704 (1997) (ordering President Bill Clinton to sit for deposition and holding that [s]itting Presidents have responded

State v. Mink, 900 S.W. 2d 779, 783 (Tex. App.Austin 1999, pet. denied) (holding that an officer of the corporation could be held individually liable based upon his own tortious conduct) (emphasis in original); Kollision King v. Calderon, 968 S.W.2d 20, 25 (Tex. App. Corpus Christi 1998, no pet.) (An officer of a corporation is always primarily liable for his own torts.).

14

to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty). If a sitting president may be forced to give a deposition in a case in which he is a named defendant, surely the same must be true for the leader of a church. 6 Assuming for the sake of argument that Mr. Miscaviges deposition was an apex deposition, Relators have failed to show that the trial court abused its discretion in ordering the deposition. First, Mrs. Rathbun presented the trial court with evidence that Mr. Miscavige has unique or superior knowledge of discoverable information. Contrary to Relators claims, the fact that Mrs. Rathbun seeks to impute the conduct of persons in Texas to Mr. Miscavige does not mean that those Texas actors would have knowledge at least as great as Mr. Miscavige. Petition at 16. The Texas actors would presumably have personal knowledge of the people from whom they received instruction and to whom they made reports. The Texas actors would not have personal knowledge of who else was acting behind the scenes. Mrs. Rathbun presented evidence that Mr. Miscavige communicates through intermediaries. MR 2074, 2658-59. Mr. Miscaviges declaration in support of his
The cases cited by Relators for the proposition that courts protect the Pope from deposition are inapplicable because in none of those cases was the Pope a named party or alleged to be personally involved in the specific dispute at issue. And in one of the lawsuits, an opinion subsequent to the one cited by Relators expressly left open the possibility that a deposition would be ordered. OBryan v. Holy See, 2010 U.S. Dist. LEXIS 32842, at *3-4 (W.D. Ky. 2010).
6

15

special appearance primarily recites an out-of-state residents usual statements regarding a lack of connection to Texas: lack of Texas drivers license, lack of Texas voter registration, lack of Texas residence, bank account, or telephone number, etc. MR 101-02. As relates to the facts of this case, however,

Mr. Miscaviges only contention is that he was not involved in the hiring, directing, instructing or communicating with Mr. Sloat, Mr. Drake or anyone else relating to the allegations asserted in this lawsuit. MR 102. It is not clear from this statement whether Mr. Miscavige is disclaiming only direct involvement or also disclaiming involvement through intermediaries. Once Mrs. Rathbun presented even arguable evidence of Mr. Miscaviges unique or superior knowledge, she met her burden and the deposition was properly ordered even under apex standards. See In re Alcatel USA, Inc., 11 S.W.3d 173, 176 (Tex. 2000). The requirement that a party seeking to take an apex deposition make a good faith effort to obtain discovery through less intrusive means and then show that additional less intrusive methods of discovery would be unsatisfactory, insufficient or inadequate applies only if the party seeking the deposition fails to show the deponent has unique or superior knowledge. Id. (The party seeking the apex deposition is required to pursue less intrusive means of discovering the information only when that party cannot make the requisite showing concerning unique or superior knowledge.). As the Texas Supreme Court has explained,

16

if the party seeking the deposition has arguably shown that the official has any unique or superior personal knowledge of discoverable information, the trial court should deny the motion for protection and the party seeking discovery should be entitled to take the apex depositions. Id. (quoting Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995)). Because Mrs. Rathbun demonstrated Mr. Miscaviges unique or superior knowledge, assuming for the sake of argument that apex deposition requirements apply to a named party, there was simply no requirement that Mrs. Rathbun agree to the offered deposition on written questions or make any other showing. The trial court did not abuse its discretion in ordering the deposition. Moreover, the trial court was presented with ample evidence that less intrusive means were insufficient to determine Mr. Miscaviges contacts with Texas and with this case. While Relators correctly state that Mrs. Rathbun has taken the depositions of corporate representatives of CSI and RTC, Relators are incorrect that those depositions preclude the taking of Mr. Miscaviges deposition. Allan Cartwright, CSIs Director of Legal Affairs, testified that while he works in a building in Los Angeles in which Mr. Miscavige has a little-used office, Mr. Miscaviges office is not staffed full time, and Mr. Cartwright rarely sees, speaks, or communicates with him. MR 2409-10, 3392-93. Other than blanket denials of Mr. Miscaviges involvement in Scientologys day-to-day

17

affairs, Mr. Cartwright could offer no specifics concerning Mr. Miscaviges activities. MR 3399. Warren McShane, the President, CEO, and Inspector General of RTC, testified that he and Mr. Miscavige work in the same building, but on different floors, and see each other only sporadically when Mr. Miscavige is in town. MR 2410, 3432-34. Mr. Miscavige travels often, and was in Florida from March through at least November of 2013. MR 3434. During that time, Mr. McShane saw Mr. Miscavige only once, had two telephone conversations with him, participated in an undetermined number of conference calls with him, and received no e-mail or text messages from him. MR 2410, 3448-49. Clearly neither Mr. Cartwright nor Mr. McShane are in a position to testify reliably concerning Mr. Miscaviges involvement or lack of involvement in activities in Texas. The trial court did not abuse its discretion in concluding that only Mr. Miscavige can testify as to his personal involvement in the particular facts and circumstances of this case, or in Texas generally. Relators misperceive the relevance of Mrs. Rathbuns veil-piercing allegations to the question of whether an apex deposition is available.7 It is not
Relators also misrepresent those arguments. While it is true that Mrs. Rathbun alleges that there is unity between CSI, RTC, and Miscavige such that the separateness of the corporations has ceased, and that Miscavige has personal control over employees and departments of different Scientology corporate entities, MR 1884, such arguments are not, by any means, the sole reason for her claims that Mr. Miscavige is subject to personal jurisdiction in this case. See MR 1878-84.
7

18

necessary that Mrs. Rathbun first prove an alter ego theory of liability in order to establish personal jurisdiction over Mr. Miscavige.8 When a party acts in the forum state through an agent, the requirements for specific personal jurisdiction are met when the nonresident defendant . . . is the author of an act within the forum state, and the petition states a cause of action in tort arising from such conduct. Smithson v. Cid, 2011 Tex. App. LEXIS 7910 (Tex. App.Corpus Christi Sept. 29, 2011, no pet.); see also Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 549 n.4 (Tex. App.Houston [14th Dist.] 2003, no pet.) (For purposes of personal jurisdiction, the actions of an agent may be attributed to the principal.); Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943, 948 (Tex. Civ. App.Texarkana 1977, no writ) (Under the commission of a tort provisions of a long arm statute, the jurisdictional requirements are met when the defendant, personally or through an agent, is the author of an act or omission within the forum state, and the petition states a cause of action in tort arising from such conduct.). The trial court had evidence before it demonstrating that Mr. Miscavige is the sort of micro-managing leader who would not permit a campaign of the type
8

Again, this is a mischaracterization of Mrs. Rathbuns petition. Mrs. Rathbun did not even allege alter ego as a theory of jurisdiction or liability. MR 1878-84, 1886-88. And while alter ego may require stock ownership as Relators allege, Petition at 28 n.19, there are other theories of disregarding corporate form that do not have an ownership requirement. See Stewart & Stevenson Servs. v. Serv-Tech, 879 S.W.2d 89, 108 (Tex. App.Houston [14th Dist.] 1994, writ denied).

19

alleged here to proceed without not only his knowledge, but his direction. See, e.g., MR 3655-57. Allan Cartwright testified that the Squirrel Busters were protesting Mr. Rathbuns perverting the auditing. MR 3407. Cartwright also testified that Miscavige would make sure incorrect applications of Scientology were handled. MR 3411-12. The trial court was presented with evidence of a 1994 affidavit from Mr. Miscavige in which Mr. Miscavige stated he ensures that any attempted perversion of the technology of dianetics and scientology is rapidly dealt with. MR 3412. Mrs. Rathbun also introduced a copy of CSIs publication Freedom Magazine at the December 11, 2013 continuance hearing. MR 2738-2818. The issue in question was dedicated to refuting an article critical of the Church that had been published in the St. Petersburg Times. Id. A copy of a letter from Mr. Miscavige to the St. Petersburg Times was included. MR 2800. There, Mr. Miscavige promises to provide information annihilating the credibility of your sources including the fundamental crimes against the Scientology religion that were the reasons for their removal from post. Id. Mr. Rathbun was one of the articles sources. MR 1191, 1961-62, 1982-2015. Another article lauds

Mr. Miscavige for [p]ersonally seeing to the successful outcome of critical external affairs issues. MR 2743. The fact that Miscavige and RTC may have acted through intermediaries in hiring, directing, instructing, and communicating with the operatives is

20

jurisdictionally irrelevant. Mrs. Rathbun presented the trial court with evidence that Mr. Miscavige is the absolute, unquestioned authority in Scientologys activities, and that he, and only he, decides who is an enemy to be attacked.9 MR 261-68. Mr. Miscavige is the one and only person in the Church of

Scientology who may authorize a destructive campaign such as the one undertaken against Mrs. Rathbun. MR 262-68. The trial court had before it evidence that Mr. Miscavige often communicates through personal communicators. MR 265858. Mr. Miscavige has the authority to order that certain people conduct any activities he commands. MR 2655, 2666, 2670, 2674. Those orders supersede orders of any of the actors direct superiors, regardless of corporate structure within the church. MR 2670, 2672, 2674-75. Certain people were assigned to make sure non-compliance with Mr. Miscaviges orders were handled. MR 2666. If people fail to do as ordered or fail to meet Mr. Miscaviges

expectations, he has them incarcerated. MR 2657. In addition to incarceration, failing to obey a command from Mr. Miscavige would often result in a barrage of verbal abuse, cussing, hazing, and physical violence most often from Mr. Miscavige personally. MR 2666-68, 2671. The trial court was presented with evidence showing that if someone escaped Scientologys International Base in

Relators argue that this evidence is too remote in time to support personal jurisdiction but the issue before the Court is not whether personal jurisdiction has been established, but whether the trial court erred in ordering Mr. Miscavige to sit for a deposition.

21

California, as Mr. Rathbun had, Mr. Miscavige was the final authority on that persons fate. MR 2667. Based on this evidence, it is reasonable to infer that pursuant to the routine, consistent, decades-long practice of the Scientology organizations, Mr. Miscavige did, in fact, authorize the campaign against Mrs. Rathbun and that consistent with Mr. Miscaviges longtime, established habit, he personally monitored and micromanaged the operations. MR 3594-95, 3793-3809. Notwithstanding Mr. Miscaviges summary denial, the trial court did not err in concluding that Mrs. Rathbun is entitled to test Mr. Miscaviges professed lack of involvement in the incidents made the basis of this case. See, e.g., Rolscreen Co. v. Pella Prods. of St. Louis, Inc., 145 F.R.D. 92 (S.D. Iowa 1992) (holding that notwithstanding affidavit from plaintiffs president that he had no first hand knowledge regarding the issues in dispute, defendant was entitled to depose president to test his professed lack of knowledge); Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130 (S.D.N.Y. 1997) (holding that an officials statement that he did not have personal knowledge of the plaintiff did not preclude his having relevant information); Am. Broad. Cos. v. United States Info. Agency, 599 F. Supp. 765, 769 (D.D.C. 1984) (director of U.S. Information Agency deposed because he had particular information that could not be reasonably obtained by another discovery mechanism).

22

II.

CASES HOLDING THAT A TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING JURISDICTIONAL DISCOVERY ARE INAPPOSITE Relators next cite many cases holding that the lower court did not abuse its

discretion in denying jurisdictional discovery.

See Petition at 21-24.

Completely absent from this scholarly recitation are cases in support of Relators proposition here that a trial court erred in permitting jurisdictional discovery. In fact, Relators cite a case holding exactly the opposite Barron v. Vanier, 190 S.W.3d 841 (Tex. App.Fort Worth 2006, no pet.) in which the Fort Worth Court of Appeals held that a trial courts ruling on a special appearance was premature because the court had improperly denied a motion for continuance seeking time to conduct jurisdictional discovery. As discussed above, Relators argument that Mrs. Rathbun did not make a sufficient showing of jurisdictional facts before seeking to take Mr. Miscaviges deposition is factually inaccurate. It is also legally infirm. Realtors fail to cite a single case holding Rule 120as grant of the right to take jurisdictional discovery is dependent upon any particular preliminary factual showing. Rather, the Rule simply requires allegations that, if proven, warrant the finding of personal jurisdiction. Id. at 850. As discussed above, Mrs. Rathbun has made such a showing. Relators complaint in the Statement of the Case that this compelled deposition will occur before Relators have a chance to demonstrate

23

the courts lack of personal jurisdiction over them, Petition at xvi, puts the cart before the horse. A deposition into jurisdictional matters necessarily comes before a special appearance hearing. See generally Tex. R. Civ. P. 120a. Relators spend 25 pages of their Petition arguing Mrs. Rathbun has not made a prima facie showing of personal jurisdiction. None was required. As the Barron court, following the Fifth Circuit and lower federal courts in Texas, explained, a trial court abuses its discretion by denying jurisdictional discovery where a plaintiff makes a good-faith showing, provides a colorable basis for, or makes a prima facie case of personal jurisdiction, or provides a reason to believe that discovery would reveal sufficient minimum contacts. Barron, 190 S.W.2d at 850 (emphasis added); see Petition at 24. Mrs. Rathbun provided the trial court ample reason to believe Mr. Miscaviges deposition would reveal sufficient minimum contacts. Indeed, the trial court would have abused its discretion had it not ordered Mr. Miscaviges deposition. Also absent from Relators argument is an explanation of the relevance of their cited federal cases to the trial courts application of Rule 120a of the Texas Rules of Civil Procedure. Petition at 23-24. The Federal Rules of Civil Procedure do not specifically address jurisdictional discovery. See S.I. Strong,

Jurisdictional Discovery in United States Federal Courts, 67 Wash. & Lee L. Rev. 489, 497 (2010).

24

Rule 120a, on the other hand, specifically directs trial courts to determine the special appearance on the basis of . . . the results of discovery processes, and any oral testimony. Tex. R. Civ. P. 120a. The rule also provides the non-movant the opportunity to obtain a continuance to obtain discovery. 10 Tex. R. Civ. P. 120a(3). This is not an appeal from an order granting or denying a special appearance. Relators contentions that the quantum of evidence presently in the record is insufficient to establish jurisdiction are premature. Relators contentions are also mistaken. For example here, as before the trial court, Relators misperceive the use of the word direct in Mrs. Rathbuns allegation regarding Mr. Miscaviges role in directing the campaign of harassment. Petition at 39-42. Mrs. Rathbuns allegation is not that Mr. Miscavige committed tortious conduct in
Relators mention the trial courts continuance but do not make it part of their issues herein. To the extent that Relators are actually seeking relief regarding the continuance itself, they have failed to show that the trial court abused its discretion in granting the continuance. The nonexclusive factors courts consider in determining whether to grant a continuance for additional discovery are: (1) the length of time the case has been on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Barron, 190 S.W.2d at 847; Mt. McKinley Ins. Co. v. Grupo Mex., 2013 Tex. App. LEXIS 4804, at *24 (Tex. App.Corpus Christi 2013, no pet.) (mem. op.). Application of these factors to the facts presented to the trial court demonstrates the propriety of the trial courts order. First, this lawsuit had been on file for five months when the trial court ordered a continuance and Mr. Miscaviges deposition. MR 1-9, 2599. Second, Mrs. Rathbun presented evidence that Mr. Miscavige is the only person who can possibly know everything about his activities. Finally, Mrs. Rathbun has consistently attempted to work with Relators in conducting jurisdictional discovery despite Relators constant attempts to avoid even minimal discovery. MR 154-70, 1498-1508, 1862-64. All three factors weighed heavily in Mrs. Rathbuns favor. See Mt. McKinley, 2013 Tex. App LEXIS 4804 at *33-34; Barron, 190 S.W.2d at 850 (finding the trial court abused its discretion in denying a continuance under Rule 120a especially in light of [Defendants] apparent strategic avoidance of [Plaintiffs] attempted discovery).
10

25

California directed at a Texas resident; instead, Mrs. Rathbun alleges, and seeks to prove, that the individuals in Texas who photographed, videotaped, and followed her and who visited her parents, friends, former husband, and co-workers, were acting at the ultimate direction of Mr. Miscavige, RTC, and CSI.

Therefore, Relators discussion of the Moncrief 11 case and the directed-a-tort theory of jurisdiction are simply inapplicable. The trial court acted well within its discretion by ordering Mr. Miscaviges deposition to develop jurisdictional facts. Mrs. Rathbun is not asking this Court to infer minimum contacts as Relators contend. Petition at 34. Mrs. Rathbun is simply asking this Court to acknowledge that the trial court did not abuse its discretion in ordering a named defendant to this lawsuit to sit for deposition. III. Relators Case Law and Argument Regarding the First Amendment are Inapposite Relators final argument is that the trial court is striking at the heart of the Scientology religions autonomy simply by ordering Mr. Miscavige to sit for a deposition. Petition at 50-57. This argument suffers from several flaws.

First, Relators cite not a single case holding that ecclesiastical abstention or more general First Amendment concerns preclude compelling a named defendant to submit to a deposition. The cases cited in this section instead prohibit judicial

11

Moncrief Oil Intl, Inc. v. OAO Gazprom, 414 S.W.3d 142 (Tex. 2013).

26

resolution of purely ecclesiastical controversies based on religious doctrine and prohibit courts from delving into religious doctrine to resolve property disputes.12 Relators have filed no motion to dismiss on the grounds of religious abstention and the First Amendment does not categorically protect religious institutions from judicial scrutiny. The trial court has already held that Mrs. Rathbuns claims are not precluded by the Texas Anti-SLAPP statute, which seeks to protect certain First Amendment Rights. SMR 1-25. As Relators acknowledge in their Introduction, Petition at xviii, this Court has seen once before that the government may be properly involved in a religions affairs when those affairs violate neutral legal principles. While this Court held in In re Sara Steed, 2008 Tex. App. LEXIS 3652 (Tex. App.Austin 2008, orig. proceeding), mand. denied, 255 S.W.3d 613 (Tex. 2008), that the

Texas Department of Family and Protective Services had failed to meet the requirements under the Texas Family Code before it removed the children at the Yearning for Zion Ranch from their parents without a court order, there was no argument that allowing underage girls to marry was protected by the First Amendment.
12

Indeed, in denying the states request for relief from this

Relators overstate the law even on these points. For example, Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), does not hold that [c]ourts may not inquire into matters of discipline, faith, internal organization, or ecclesiastical rule, custom or law, Petition at 52, rather, the Supreme Court merely held that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. 426 U.S. at 713.

27

Courts order, the Texas Supreme Court specifically acknowledged that it would be proper for the trial court to grant[] other appropriate relief to protect the children. In re Texas Dept of Family and Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008); see also Westbrook v. Penley, 231 S.W.3d 389, 403-04 (Tex. 2006) (holding that to allow the First Amendment to categorically protect religious leaders from judicial scrutiny would improperly place religious leaders in a preferred position in our society). Second, Relators arguments are hypothetical and thus premature even as they relate to a deposition. Upon Mr. Miscavige appearing for deposition, if Relators believe certain questions violate some right to be free from discovery, they are fully capable of objecting to the questions and seeking a ruling from the trial court at that time. Relators cite no cases holding that because a witness may be asked objectionable questions, the witness must be protected from being deposed at all. Indeed, the law is to the contrary. See, e.g., Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex. 1962) (The privilege of the Fifth Amendment must be exercised in connection with precise questions and not as a general excuse for refusing to appear in response to subpoena.); Borden, Inc. v. Valdez, 773 S.W.2d 718, 720-21 (Tex. App.Corpus Christi 1989, orig. proceeding)

(denying mandamus relief because [a]n attorney may not avoid a deposition in its

28

entirety merely because some matters may be privileged, but must object when those inquiries are raised during the deposition). Third, Relators arguments are again merits-based and this time, they attempt to address not only the merits of the special appearance but also the merits of Mrs. Rathbuns claims. The trial court has not yet ruled on the special

appearances, let alone issued any definitive ruling on the claims themselves. Indeed, at the special appearance stage it would be inappropriate for the trial court to make any merits determination. See Tex. R. Civ. P. 120a(2) (No determination of any issue of fact in connection with the objection to jurisdiction is a determination of the merits of the case or any aspect thereof.); see also Baldwin v. Household Intl, Inc., 36 S.W.3d 273, 277 (Tex. App.Houston [14th Dist.] 2001, no pet.) (When reaching a decision to exercise or decline jurisdiction . . . the trial court should rely only upon the necessary jurisdictional facts and should not reach the merits of the case.). And because the trial court has reached neither the merits of the special appearance nor the merits of Mrs. Rathbuns claims, review by this Court is unavailable. See In re Johnston, 2010 Tex. App. LEXIS 8165, at *8-9 n.3 (Tex. App.Texarkana, orig. proceeding) (collecting cases holding that mandamus relief cannot be granted on arguments not presented to the trial court). Fourth, Relators argument that simply examining the relationship between CSI, RTC, and Miscavige violates their First Amendment rights goes too far.

29

Mrs. Rathbun is not seeking to have the trial court interfere with or control the Churchs management of its internal affairs. Contrary to Relators description, she is not arguing that because of his religious influence, he must also have absolute management authority or treating Mr. Miscaviges ecclesiastical authority as equivalent to corporate control. Petition at 53-54. She is simply seeking to allow the trial court to have full knowledge of the facts so it may make an informed decision on Relators special appearances. The cases Relators cite for the

proposition that courts cannot inquire into such matters are limited to situations when determination of the legitimacy of validity of such matters are necessary to a partys claims or defenses.13 See, e.g., Westbrook, 231 S.W.3d at 391-92 (finding the courts could not hear a professional negligence dispute between a parishioner and a pastor who was also a licensed counselor). Such is not the case here. Finally, Relators are mistaken in their claim that the ordered deposition will blur the lines between jurisdictional facts and the merits. The very statement
13

Not surprisingly, Relators fail to include among the cases discussing First Amendment protections against court intrusion into religious practices a case involving the Church of Scientology itself. In Wollersheim v. Church of Scientology of California, 212 Cal. App. 3d 872 (Cal. Ct. App. 1989), the Church argued at the merits stage that the conduct the plaintiff claimed to be intentional infliction of emotional distress was protected forms of religious expression. The California Court of Appeals disagreed, recognizing that while freedom of belief is absolutely guaranteed; freedom of action is not. Thus government cannot constitutionally burden any belief no matter how outlandish or dangerous. But in certain circumstances it can burden an expression of belief which adversely affects significant societal interests. Id. at 884. The court carefully analyzed the factors applicable to determining whether activity by a religious entity was protected and concluded the Churchs fair game policy in which a heretic is neutralized by being stripped of his or her economic, political and psychological power was not entitled to First Amendment protection. Id. at 888-92.

30

Relators quote that Mr. Miscavige should be ordered to testify regarding his involvement in the particular facts and circumstances of this case, Petition at 55 (emphasis added) demonstrates that the deposition seeks to inquire into the relationship among the defendant, the forum, and the litigation. See Michiana Easy Livin Country, Inc. v. Holten, 168 S.W.3d 777, 790-91 (Tex. 2005). Relators quote the trial judges order that the deposition take place on the jurisdictional issues herein, but in the next sentence conclude this limitation opens the door to a wide-ranging inquiry that goes well beyond whether Mr. Miscavige and RTC have sufficient contacts with Texas to confer jurisdiction. Petition at 55. This conclusion simply does not follow from the courts order of a limited deposition. CONCLUSION AND PRAYER Relators describe Mrs. Rathbuns desire to take a defendants deposition as a quest for the holy grail. Petition at xxi. Relators description of Mrs. Rathbuns claims and the relevance of the deposition to this suit bears as much resemblance to reality as Monty Python and the Holy Grail bears to the historical descriptions of the chalice of the Last Supper. The Churchs version of the central facts of the dispute between it and Marty Rathbun is simply irrelevant to Mrs. Rathbuns complaints of stalking, harassment, and other tortious behavior.

31

Mrs. Rathbun seeks to have Defendants stalking and other harassment cease. She seeks redress for the years-long campaign against her. That RTC and CSI are religious entities is simply irrelevant. This Court should not assist RTC and Miscavige in their quest to avoid liability through tactical procedural hurdles. The trial court did not abuse its discretion by ordering Mr. Miscavige to sit for deposition. 14 Mandamus relief is not available and should be denied. Respectfully submitted, PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LP 2161 NW Military Highway, Suite 400 San Antonio, Texas 78213 www.pulmanlaw.com (210) 222-9494 Telephone (210) 892-1610 Facsimile By: /s/ Leslie Sara Hyman Elliott S. Cappuccio Texas State Bar No. 24008419 ecappuccio@pulmanlaw.com Leslie Sara Hyman Texas State Bar No. 00798274 lhyman@pulmanlaw.com Etan Z. Tepperman Texas State Bar No. 24088514 etepperman@pulmanlaw.com

14

In their Conclusion and Prayer, Relators seek not only to have this Court order the trial court to vacate its order requiring Mr. Miscavige to sit for deposition, but also to have the Court order the trial court to vacate its order granting a continuance of the special appearance and discovery and to conduct a hearing on the special appearances. This additional relief was not mentioned in the Statement of the Case or the Issues Presented and forms no part of the arguments in the 62page Petition.

32

JEFFREY & MITCHELL, P. C. Ray B. Jeffrey Texas State Bar Number 10613700 A. Dannette Mitchell Texas State Bar Number 24039061 2631 Bulverde Road, Suite 105 Bulverde, Texas 78163 (830) 438-8935 Telephone (830) 438-4958 Facsimile rjeffrey@sjmlawyers.com dmitchell@sjmlawyers.com THE WIEGAND LAW FIRM, P.C. Marc F. Wiegand Texas State Bar No. 21431300 434 North Loop 1604 West, Suite 2201 San Antonio, Texas 78232 (210) 998-3289 Telephone (210) 998-3179 Facsimile marc@wiegandlawfirm.com ATTORNEYS FOR REAL PARTY IN INTEREST MONIQUE RATHBUN

33

CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that, excluding those parts allowed to be excluded, the foregoing Response of Real Party in Interest Monique Rathbun contains 7,841 words.

/s/ Leslie Sara Hyman Leslie Sara Hyman RULE 52.3(j) CERTIFICATION In accordance with Texas Rule of Appellate Procedure 52.3(j), I certify that I have reviewed this R e s p o n s e and conclude that every factual statement in the response is supported by competent evidence included in the appendix or record. /s/ Leslie Sara Hyman Leslie Sara Hyman

34

CERTIFICATE OF SERVICE I certify that on the 17th day of March 2014, the foregoing Response of Real Party in Interest Monique Rathbun has been transmitted by electronic service and by e-mail or facsimile in accordance with the requirements of the Texas Rules of Appellate Procedure addressed as follows: Mr. Lamont A. Jefferson lamont.jefferson@haynesboone.com Mr. Ben L. Mesches ben.mesches@haynesboone.com Haynes and Boone, LLP 112 East Pecan Street, Suite 1200 San Antonio, Texas 78205-1540 Mr. Wallace B. Jefferson wjefferson@adjtlaw.com Ms. Rachel A. Ekery rekery@adjtlaw.com Alexander Dubose Jefferson & Townsend, LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Mr. Ricardo Cedillo rcedillo@lawdcm.com Mr. Les J. Strieber III lstrieber@lawdcm.com Davis Cedillo & Mendoza, Inc. McCombs Plaza, Suite 500 755 East Mulberry Avenue San Antonio, Texas 78212 Mr. Jonathan H. Hull jhull@reaganburrus.com Reagan Burrus 401 Main Plaza, Suite 200 New Braunfels, Texas 78130 Mr. Bert H. Deixler bdeixler@kbkfirm.com Kendall Brill & Kleiger LLP
10100 Santa Monica Boulevard, Suite 1725

Ms. J. Iris Gibson Iris.Gibson@haynesboone.com Haynes & Boone, LLP 600 Congress Avenue, Suite 1300 Austin, Texas 78701

Mr. George H. Spencer, Jr. spencejr@clemens-spencer.com Clemens & Spencer 112 East Pecan Street, Suite 1300 San Antonio, Texas 78205-1531 Mr. O. Paul Dunagan dunagan@sarleslaw.com Sarles & Ouimet 370 Founders Square 900 Jackson Street Dallas, Texas 75202

Los Angeles, California 90067

35

Ms. Stephanie S. Bascon sbascon@att.net Law Office of Stephanie S. Bascon PLLC 297 West San Antonio Street New Braunfels, Texas 78130

The Honorable Dib Waldrip Judge, 207th Judicial District Court Comal County Courthouse 150 North Seguin Avenue, Suite 317 New Braunfels, Texas 78130 (830) 608-2030 /s/ Leslie Sara Hyman Leslie Sara Hyman

36

Appendix

APPENDIX TO RESPONSE TO PETITION FOR WRIT OF MANDAMUS

TAB 1

DESCRIPTION Rule 120a of the Texas Rules of Civil Procedure

Texas Rules Copyright (c) 2014 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved. *** This document is current through February 7, 2014 *** *** Federal case annotations: July 9, 2013 postings on Lexis.com *** *** State case annotations: July 31, 2013 postings on Lexis.com *** STATE RULES TEXAS RULES OF CIVIL PROCEDURE PART II. RULES OF PRACTICE IN DISTRICT AND COUNTY COURTS SECTION 5. Citation Tex. R. Civ. P. 120a (2014) Rule 120a Special Appearance 1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State. A special appearance may be made as to an entire proceeding or as to any severable claim involved therein. Such special appearance shall be made by sworn motion filed prior to motion to transfer venue or any other plea, pleading or motion; provided however, that a motion to transfer venue and any other plea, pleading, or motion may be contained in the same instrument or filed subsequent thereto without waiver of such special appearance; and may be amended to cure defects. The issuance of process for witnesses, the taking of depositions, the serving of requests for admissions, and the use of discovery processes, shall not constitute a waiver of such special appearance. Every appearance, prior to judgment, not in compliance with this rule is a general appearance. 2. Any motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard. No determination of any issue of fact in connection with the objection to jurisdiction is a determination of the merits of the case or any aspect thereof. 3. The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony. The affidavits, if any, shall be served at least seven days before the hearing, shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. Should it appear to the satisfaction of the court at any time that any of such affidavits are presented in violation of Rule 13, the court shall impose sanctions in accordance with that rule. 4. If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State.

NOTES:

Change by amendment effective January 1, 1976: Words are added in the third sentence which permit amendments to the special appearance motion. Change by amendment effective September 1, 1983: To conform to S.B. 898, 68th Legislature, 1983. Change by amendment effective September 1, 1990: To provide for proof by affidavit at special appearance hearings, with safeguards to responding parties. These amendments preserve Texas prior practice to place the burden of proof on the party contesting jurisdiction. PUBLICATION REFERENCES. --See Texas Litigation Guide, Ch. 31, Service on Residents; Ch. 32, Personal Jurisdiction and Service on Nonresidents; Ch. 60, Special Appearance.