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CAUSE NO. C2013-1082BIN THE DISTRICT COURT207th JUDICIAL DISTRICTCOMAL COUNTY, TEXASMONIQUE RATHBUNPlaintiff,VS.DAVID MISCAVIGE, RELIGIOUSTECHNOLOGY CENTER, CHURCH OFSCIENTOLOGY INTERNATIONAL,STEVEN GREGORY SLOAT, and MONTYDRAKE,Defendants.§§§§§§§§§§§§§MOTION FOR CLARIFICATION AND TO RECONSIDER ORDER GRANTINGCONTINUANCE AND DISCOVERY ON JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:Subject to and without waiver of their special appearances, Defendants David Miscavige(“Mr. Miscavige”) and Religious Technology Center (“RTC”) file this Motion for Clarificationand to Reconsider Order Granting Continuance and Discovery on Jurisdiction:
I.INTRODUCTION
1. On December 13, 2013, the Court considered Mrs. Rathbun’s Motion to CompelDiscovery and for Continuance of Special Appearance Hearing and announced that it wouldgrant the Plaintiff’s motion. The Court subsequently signed an Order Granting Continuance andDiscovery on Jurisdiction (“Order Granting Continuance”).
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The Court should reconsider itsorder for the following reasons:
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The Court’s order is dated December 13, 2013, but the order was not distributed or available to the parties beforeDecember 20, 2013. A copy of the Order is attached as Exhibit A.
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a. The specially appearing defendants have been denied their right to presenttheir special appearance motions
before
the Court orders further discovery.An opportunity to conclusively negate the plaintiff's basis for jurisdictionis essential because the purpose behind a special appearance is to ensurethat parties are not compelled to participate in a lawsuit when the trialcourt lacks jurisdiction over them; b. The Court elected not to consider evidence presented by the Defendantsthat negates the Court's jurisdiction. But the discovery submitted byDefendants, including the depositions of Mr. McShane and Mr.Cartwright, demonstrate that the Court lacks personal jurisdiction over Defendants, which eliminates any basis for additional discovery; andc. Defendants must be afforded the opportunity to contest evidence uponwhich the Court based its order for additional discovery. Because theOrder does not describe the evidence it considered, Defendants have beenerroneously denied a meaningful opportunity to demonstrate why theCourt lacks personal jurisdiction over them.2. This Court should set a hearing to allow the specially appearing defendants theopportunity to fully present their special appearance motions. The circumstances this case presents are extraordinary. Although the Plaintiff has taken five depositions, no deponent hadany knowledge that Mr. Miscavige had even one relevant contact with Texas. Plaintiff noticeddepositions of other non-party witnesses, but then abandoned that effort presumably because theresult would be the same—that none of them could recount that Mr. Miscavige had anymeaningful Texas contact. The sixteen Affidavits and Declarations the Plaintiff relies on present
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innuendo rather than facts. They assert that Mr. Miscavige was involved extensively inexecutive-level decisions concerning the Religious Technology Center and the Church of Scientology International. Most, like the declaration from Mark "Marty" Rathbun, involvealleged corporate practices occurring more than a decade ago outside of Texas. But none of these declarations, even if taken as true, present direct evidence of Mr. Miscavige’s current roleor that he has unique or superior knowledge about the particular facts underlying this lawsuitsufficient to establish minimum Texas contacts. In a similar context involving apex depositions,the Supreme Court of Texas has declared emphatically that discovery of a high-level executivecannot rest on the mere assertion that the executive has ultimate responsibility for corporatedecisions.
See In re Alcatel USA, Inc.
, 11 S.W.3d 173, 176 (Tex. 2000) (orig. proceeding)(holding that allegations that apex official was "a long-time company leader who sets thecompany vision with lofty goals" did not establish his unique or superior knowledge, because"[v]irtually every company's CEO has similar characteristics”).3. Plaintiff has already taken two high-level corporate representative depositions of the President of RTC and Legal Director and Corporate Officer of CSI. Like the declarations,these depositions do not establish that Mr. Miscavige has the required unique or superior knowledge about the facts and contacts at issue here. To the contrary, these depositions showthat Plaintiff had an adequate opportunity to discover any jurisdictional facts related to RTC’s or Mr. Miscavige’s alleged contacts, if any, with Texas from corporate officers who are in a position to know about these questions. Plaintiff simply chose not to ask the relevant jurisdictional questions and thus did not make a reasonable effort to explore less-intrusivediscovery before seeking Mr. Miscavige’s deposition.
See In re Daisy Mfg. Co., Inc.,
17 S.W.3d654, 657 (Tex. 2000) (orig. proceeding).