NAFC vs. Narconon: Response to Miscavige Motion to Dismiss

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF OKLAHOMA
1. NATIONAL ASSOCIATION OF
FORENSIC COUNSELORS, INC., a Nevada
Non-Profit Corporation, and
2. AMERICAN ACADEMY OF CERTIFIED
FORENSIC COUNSELORS, INC., d/b/a
AMERICAN COLLEGE OF CERTIFIED
FORENSIC COUNSELORS, a Nevada ForProfit Corporation,
Plaintiffs,
v.
1. NARCONON INTERNATIONAL, a
California Non-Profit Corporation, et al.
Defendants.

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Case No. 14-cv-00187-RAW

PLAINTIFFS’ RESPONSE AND INCORPORATED BRIEF IN OPPOSITION
TO DEFENDANT DAVID MISCAVIGE’S MOTION TO DISMISS
Respectfully submitted,
KEESLING LAW GROUP, PLLC
s/ David R. Keesling
David R. Keesling, OBA # 17881
Heidi L. Shadid, OBA # 22897
Sloane Ryan Lile, OBA # 21342
401 S. Boston Ave.
Mid-Continent Tower, Suite 450
Tulsa, OK 74103
(918) 924-5101 Phone
(918) 512-4888 Fax
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs

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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF RELEVANT FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I.

STANDARD FOR MOTION TO DISMISS UNDER 12(b)(2) FOR LACK
OF PERSONAL JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II.

SPECIFIC PERSONAL JURISDICTION EXISTS . . . . . . . . . . . . . . . . . . . . . . .12
a.
The Exercise of Jurisdiction is Reasonable under the Circumstances . . . 14

III.

PLAINTIFFS’ COMPLAINT SUFFICIENTLY STATES CLAIMS
AGAINST THE MOVING DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV.

ALTERNATIVE REQUEST FOR LEAVE TO AMEND . . . . . . . . . . . . . . . . . 16

V.

PLAINTIFFS’ OBJECTION TO THE REQUEST FOR JUDICIAL NOTICE
AND REQUEST TO CONVERT INTO A MOTION FOR SUMMARY
JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

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TABLE OF AUTHORITIES
Cases
1-800 Contacts, Inc. v. Lens.com, Inc.,
722 F.3d 1229 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Alvarado v. KOB-TV, L.L.C.
493 F.3d 1210 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
American Land Program, Inc. v. Bonaventura Uitgevers Maatschappu,
710 F.2d 1449 (10th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Banks v. American Baptist Churches,
CIV-14-100-RAW, 2014 WL 3037603 (E.D. Okla. July 3, 2014) . . . . . . . . . . . . . . . . 15
Burger King Corp. v. Rudzewicz
471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Calder v. Jones,
465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,
514 F.3d 1063 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Faustin v. City & Cnty. of Denver,
423 F.3d 1192 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hansen v. PT Bank Negara Indonesia (Persero)
706 F.3d 1244 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc.,
205 F.3d 1244 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Inwood Laboratories, Inc. v. Ives Laboratories, Inc.,
456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Jacobsen v. Deseret Book Co.
287 F.3d 936 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Melea, Ltd. v. Jawer SA,
511 F.3d 1060 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
243 F.Supp.2d 1073 (C.D. Cal. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Motown Record Co., L.P. v. iMesh.Com, Inc.,

iii

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2004 WL 503720 (S.D.N.Y.) (Unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Newsome v. Gallacher,
722 F.3d 1257 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
OMI Holdings, Inc. v. Royal Ins. Co. of Canada,
149 F.3d 1086 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12
Shrader v. Bittinger,
633 F.3d 1235 (10th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Smith v. U.S.,
561 F.3d 1090, 1103 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tal v. Hogan,
453 F.3d 1244 (10th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 19, 22
Thomas v. Metropolitan Life Ins. Co.
540 F.Supp.2d 1212, 1218 (W.D.Okla. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
Ticketmaster-New York, Inc. v. Alioto,
26 F.3d 201 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Utah Lighthouse Ministry v. Foundation for Apologetic Information and Research,
527 F.3d 1045 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wright v. Abbott Labs., Inc.,
259 F.3d 1226 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Wyatt v. Kaplan,
686 F.2d 276 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statutes
42 U.S.C. § 1114 (Lanham Act § 32) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
42 U.S.C. § 1125 (Lanham Act § 43) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Federal Rules
FED.R.CIV.P. 12(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10, 14
FED.R.CIV.P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 10, 15, 16

iv

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FED.R.CIV.P. 12(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
FED.R.CIV.P. 56(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
FED.R.CIV.P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
FED.R.EVID. 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

v

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COME NOW, Plaintiff National Association of Forensic Counselors, Inc. (“NAFC”) and
Plaintiff American Academy of Certified Forensic Counselors, Inc. d/b/a American College of
Certified Forensic Counselors (“ACCFC”) (collectively “Plaintiffs”), by and through their
counsel of record Keesling Law Group, PLLC, and pursuant to FED.R.CIV.P. Rules 12(b)(2) and
12(b)(6) hereby submit Plaintiffs’ Response and Incorporated Brief in Opposition to Defendant
David Miscavige’s Motion to Dismiss [Dkt. No. 454]. In support thereof, Plaintiffs state as
follows:
INTRODUCTION
Defendant Miscavige’s Motion to Dismiss is nothing more than a smear campaign and a
publicity stunt1 that falls woefully short of the legal standards for a Motion to Dismiss under
either FED.R.CIV.P. Rules 12(b)(2) and 12(b)(6). Rather than addressing meritorious points of
law, Defendant Miscavige’s Motion is rife with meaningless “Rain Man”-like statistics parsing
out meaningless numbers as if it speaks to the merits of a Motion to Dismiss based on
jurisdiction or the failure to state a claim. It does not.
This case emanates from Defendants’ theft of Plaintiffs’ logos, trademarks, certifications
and established business reputation in order to bait vulnerable victims into the Scientology
1

Defendant Miscavige is utilizing this Motion as a platform for his publicity machine, which is
constantly churning out the same, repetitive, recycled information with a different spin.
Plaintiffs would direct the Court to the letter written by Defendant Miscavige’s counsel and
author of this Motion, Jeffrey Riffer, in 2012 in response to a Vanity Fair article which dared to
criticize David Miscavige. [August 16, 2012 Letter from Jeffrey Riffer, attached as Exhibit 129].
In the letter, Mr. Riffer describes Defendant Miscavige as “the ecclesiastical leader of a
worldwide religion; a man of impeccable character who is dedicated to his faith and to the
service of its parishioners.” Mr. Riffer prattles on about Miscavige like an eager job-seeker
hoping to impress a potential boss, chronicling Miscavige’s many purported achievements (citing
to thinly-veiled self-aggrandizing websites created by the Miscavige-directed Scientology PR
machine). On a related note, Mr. Riffer sent a letter to CNN which utilizes remarkably similar
language, again paying homage to Miscavige as “one of the great individuals of our time” who,
once again, “has dedicated his life to his faith and to the service of its parishioners.” [See
January 21, 2013 Letter from Jeffrey Riffer, attached as Exhibit 130].
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religion. Plaintiffs operate a certification board for forensic counselors. In order to operate the
certification board, Plaintiffs have established a series of standards, skills, training and
competencies required for professionals working with criminal offenders in addictions 2 to
enhance the delivery of safe and effective treatment. This lawsuit involves the misappropriation
and misuse of Plaintiffs’ logos, trademarks, certifications and established business reputation by
Defendants for the purposes of marketing Narconon programs for profits and ultimately
promoting the Church of Scientology. Defendant David Miscavige (“Miscavige”) was added to
the Complaint due to his role as the chief architect in the infringement and civil conspiracy.
STATEMENT OF RELEVANT FACTS
Based on the extraordinary breadth of the conspiracy, and to avoid unnecessary
duplication, Plaintiffs incorporate by reference their Responses to the Motions to Dismiss filed
by the other Defendants. Additionally, Plaintiffs incorporate the paragraphs in the Response to
the Motion to Dismiss of Religious Technology Center (“RTC”), which sets forth the common
scheme run by RTC and the exhibits 1 – 26 referenced therein. [Dkt. No. 261]. For the clarity of
the Record and for judicial economy, Plaintiffs have utilized a continuous numbering scheme
and separately filed an appendix with the exhibits to the previously concurrently filed Responses
to the Motions to Dismiss rather than filing the exhibits piecemeal with the individual Responses.
[Dkt. No. 341].
Despite Defendant Miscavige’s general denials, Defendant David Miscavige is not only a
contributor, he is the ultimate mastermind behind the scheme described in the Complaint by
virtue of his propagation of the misuse and misappropriation of Plaintiffs’ intellectual property to

2

The addictions certifications are the only relevant certifications for the purposes of this case.
However, Plaintiffs also promote competency and training in the areas of criminal justice, mental
health and corrections.
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profit the Narconon Network and the Church of Scientology. Defendant Miscavige is the Trustee
and Chairman of the Board of Defendant RTC. [Dkt. 3 at ¶ 245]. As alleged in the Complaint,
RTC holds the rights to L. Ron Hubbard’s name, writings and marks. [Complaint at ¶ 243].
Hubbard’s technology3 is used throughout the Narconon Network to draw Narconon patients into
the Scientology religion. [Complaint at ¶ 254 – 255]. Defendants ABLE and RTC control
Narconon as an arm of the Defendant Church of Scientology International through licensing
agreements and L. Ron. Hubbard [Dkt. 3 at ¶ 247]. Narconon International, ABLE and RTC set
forth the common scheme in which the all Defendants participate to promote the Narconon
Network and ultimately entice individuals into the Church of Scientology. [Dkt. 3 at ¶¶ 115, 119,
246, 253-254, and 256]. Miscavige is the puppet-master and personally keeps his grip upon the
activities of RTC, ABLE and the entire Narconon Network.
Miscavige himself made false assertions about Plaintiffs’ certifications and approval of
the Narconon Network. [Ex. 1 at ¶ 5; Ex. 8; Dkt. 3 at ¶ 248]. Narconon Arrowhead continued
this same falsified recognition as recently as March 2013. [Dkt. 3 at ¶ 126]. RTC controls all
things Scientology, including the Narconon Network, and Mr. Miscavige has proven his
knowledge about the claims alleged in the Complaint. To bolster the credibility of the treatment
in the Narconon Network, Miscavige directly linked the Narconon Network to Plaintiffs
certifications. Specifically, Miscavige touted the use of Plaintiffs’ certifications through
Plaintiffs’ short-lived sub-board, the NBAE, while misrepresenting Plaintiffs’ approval of the
Narconon Network and the means by which a person can obtain certifications by stating that

3

When discussing the L. Ron Hubbard “technology,” the Complaint and the filings in this case
are referring to L. Ron Hubbard’s Dianetics, which are the Hubbard’s proclaimed methods for
overcoming nightmares, unreasonable fears, upsets, insecurities and psychosomatic illnesses to
reach the Scientology’s state of “Clear.” See www.scientology.org/faq/background-and-basicprinciples/what-is-dianetics.html.
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training in the L. Ron. Hubbard technologies replaced all college training requirements. [Dkt. 3
at ¶¶ 239-242, 248]. Miscavige takes an hands-on approach to all Scientology events, including
“[p]ersonally driving the international dissemination of Scientology” and “[p]lanning, creating,
producing and presiding over nine annual globally broadcast events that serve as briefings for
Scientologists on strategic programs, campaigns, expansion, dissemination and major
breakthroughs.” [See Excerpts from RTC’s 2009 Freedom Magazine article, attached hereto as
Exhibit 131].
These personally written and approved statements were part of a scheme in which
Miscavige in conjunction with the other Defendants such as RTC, ABLE, and COSI participated
to utilize the Plaintiffs’ certifications to bolster the Narconon Network and its counselors by
puffery. [Dkt. 3 ¶ 249]. The fact that Narconon Arrowhead, which was established by RTC and
Mr. Miscavige as the “Flagship” program for the Narconon Network, shows more than sufficient
contacts to the State of Oklahoma to allow this Court to exercise personal jurisdiction.
Although Chairman of the Board for RTC, Defendant Miscavige maintains de facto
personal control over all operations of Scientology4, which specifically includes the Narconon
Network. [Ex. 2 at ¶ 5; Ex. 3 at ¶¶ 5 – 12; Ex. 4 at ¶ 9; Ex. 1 at ¶¶ 21-22; Ex. 18 and Ex. 19].
The highest, controlling corporation in the Scientology hierarchy is the RTC. [Ex. 4 at ¶ 9; Ex. 1
at ¶¶ 13 – 19; Ex. 16 and 17]. Below the RTC are different units and corporations, which are
established for certain purposes and have certain directives. For example, Narconon Arrowhead
(Oklahoma) received orders concerning Division Six B, Department 17B. [Ex. 1 at ¶ 25; Ex. 21].
These divisions are not referring to the drug rehabilitation portions of the Narconon Network, but
4

The relationship between the Church of Scientology International, RTC, ABLE and Narconon
is set forth in detail in The Corporations of Scientology booklet, which is attached as Exhibit 14.
The booklet includes important descriptions of how the activities of Scientology are carried out
and RTC’s role. [Ex. 1 at ¶¶ 10-11].
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rather the specific roles Narconon plays in order to build a Scientology community. [Ex. 1 at ¶¶
26 – 27; Ex. 22, 23 and 24]. [See also “New Breed of Organization” Chart, Ex. 25.]
Miscavige created his title as “Chairman of the Board, Religious Technology Center” so
that he could have full autocratic control while maintaining the farce of RTC as a legitimate
corporation. [Ex. 4 at ¶ 10]. Miscavige has been Chairman of the Board since at least 1987, and
is the most senior officer of the RTC, which was formed to preserve, maintain and protect the
Scientology religion and holds the authority regarding the pure application of L. Ron Hubbard’s
technologies. [Ex. 1 at ¶ 3; Ex. 5; Ex. 6]. Miscavige created the Authorization, Verification and
Correction (“AVC”) department in RTC and mandated that no strategy, project, program or
order of any kind could leave the Church of Scientology without going through the AVC. [Ex. 4
at ¶ 13.] Through the AVC unit, Miscavige directly oversees all strategies, projects, programs or
orders of any kind associated with the Church of Scientology. [Ex. 2 at ¶ 6]. Miscavige’s
oversight and control within the AVC includes the requirement of RTC authorization and
approval of all materials and promotional items prior to use by the Narconon Network. [Ex. 2 at
¶ 7]. AVC control is exemplified through the directives circulated to the Narconon Network.
[Ex. 1 at ¶¶ 24, Exhibit 20, SOCO International Directive]. The SOCO International Directive
describes the sole reason for Narconon is to sell L. Ron Hubbard’s technologies to society. [Ex. 1
at ¶ 23; Ex. 20]. Further, Mr. Miscavige touts the Narconon Network as “our” program, and he
consistently refers to what “we” are doing. [Ex. 2 at ¶¶ 18 – 23; Ex. 1 at ¶ 7; Exhibits 9, 10, 11
and 12].
Additionally, Defendant Miscavige has discussed the important role played by Narconon
Arrowhead as RTC and the Church of Scientology’s “flagship program.” [Ex. 1 at ¶ 12; Ex. 2 at
¶ 12; Ex. 15]. Miscavige asks this Court to believe, contrary to reality, that Miscavige has no

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connection to Oklahoma, while the Church of Scientology concurrently boasts Miscavige’s
spearheading social betterment programs like Narconon. Specifically, Church of Scientology’s
own website describes Miscavige’s oversight of the Church’s initiatives, including Narconon
Arrowhead of Oklahoma as the premier facility of the worldwide Narconon drug rehabilitation
and prevention network. [See Excerpt of Miscavige’s Biography on www.scientologynews.org,
attached hereto as Exhibit 132]. Miscavige intricately participated in the oversight and
establishment of Narconon Arrowhead in Oklahoma. [Ex. 1 at ¶ 4; Ex. 7; Ex. 2 at ¶¶ 12 – 15].
Miscavige directed Defendant Gary Smith to find a new location, propose designs and space
plans, and seek Mr. Miscavige’s approval for the new location. [Ex. 2 at ¶ 12 – 14, Letter
Miscavige to Defendant Gary Smith, attached hereto as Exhibit 133]. Mr. Miscavige personally
visited Narconon Arrowhead, as shown in the photograph attached as Ex 13. [Ex. 1 at ¶ 8]. The
Narconon Network maintains specific importance for Miscavige based on the celebrity
involvement. [Ex. 2 at ¶ 9]. Miscavige monitored the Narconon Network on a weekly basis. [Ex.
2 at ¶ 12]. Mr. Miscavige required the weekly report to be submitted to him from ABLE that
detailed the statistics, accomplishments and any problems, with specific emphasis on Narconon
Arrowhead. [Ex. 2 at ¶ 12].

Narconon Arrowhead held particular interest to Defendant

Miscavige because it was the best Narconon facility, it had the most investment and resources,
and it held a special interest for influential scientology celebrities. [Ex. 2 at ¶ 17].
In his self-serving affidavit, Miscavige declares that he has only been to Oklahoma once,
in 2003, and issues a blanket denial of any other involvement with Oklahoma. Plaintiffs’
evidence dwarfs Defendant Miscavige’s bare assertions that jurisdiction doesn’t exist. In yet
another self-worshipping PR opportunity, Defendant Miscavige holds himself out as
“spearheading global humanitarian initiatives.” [Ex. 132]. The PR article continues to laud

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Defendant Miscavige on his oversight of the international headquarters of such initiatives,
INCLUDING Narconon Arrowhead in Oklahoma, which is the largest Narconon and serves as
Narconon’s training center.

[Id.]. Miscavige received consistent updates concerning the

construction and completion of the Narconon Arrowhead facility. [Ex. 1 at ¶ 4; Ex. 2 at ¶¶ 12-15;
Ex. 7]. Miscavige admitted to reviewing “in quite some detail the new Narconon Arrowhead
facility and plans.” [Ex. 133]. Miscavige intended to attend the grand opening of Narconon
Arrowhead, which occurred in 2001. [Ex. 133].
Even if Defendant Miscavige’s assertions were true that he only visited Oklahoma once
in 2003, the imprint of his control over all Scientology remains. Though he may have been
careful to keep his physical body outside of Oklahoma and his name off of documentation
related to Oklahoma, Defendant Miscavige clearly inserted himself into Oklahoma via his heavy
involvement with Narconon Arrowhead. Moreover, his silence in the Declaration is telling Miscavige does not address the fact that he micromanages Scientology-related organizations,
such the Narconon Network, with particular emphasis on Narconon Arrowhead. [See Ex. 2 at ¶
12].
Further, in his Motion, Miscavige vaingloriously touts his travel around the world on a
regular basis5. In this circumstance, however, Miscavige’s claimed globetrotting is disingenuous
because he notoriously seeks to escape personal jurisdiction at every turn6. In fact, since 1982,
the only known addresses for Miscavige have been at the L. Ron Hubbard or other Scientology
office headquarters, with NO residential addresses listed. [See Excerpts of Public Records,
attached hereto as Exhibit 134]. Miscavige has carefully orchestrated his entire life in an effort
5

See Footnote 1 above, wherein Miscavige’s travel is also touted in the Vanity Fair letter
written by Miscavige’s counsel, Mr. Riffer. [Ex. 129].
6
Miscavige similarly claims lack of jurisdiction in the Texas matter of Rathbun v. Church of
Scientology, et al, Comal County, Texas, 207th Judicial District Cas No. C2013-2477.
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to maintain power and control while concurrently avoiding accountability.

Because he

admittedly travels constantly, Miscavige maintains contact with Oklahoma remotely. In this
globalized world, to exercise personal jurisdiction over Miscavige does not necessarily require
physical presence. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174,
2184, 85 L.Ed.2d 528 (1985). Defendant Miscavige’s Affidavit and Motion provide false and
misleading information to the Court in an attempt to yet again dodge jurisdiction and still fails to
provide a basis for the Court to refrain from exercising personal jurisdiction.
David Miscavige has inextricably tied the Narconon Network to the Church of
Scientology.

Evidence of these ties is widespread.

The IRS, in a Closing Agreement,

determined that ABLE, Narconon International, RTC, COSI and entire Narconon Network to be
“Scientology-related entities.” [IRS Agreement, attached hereto as Exhibit 135]. Further, in a
direct tie between Defendant Narconon Fresh Start and the Church of Scientology, Defendant
Miscavige issued a plaque to Fresh Start for its commitment to Scientology. [Ex. 96]. According
to the Affidavit of David Venemon, a former employee of Fresh Start, the plaque hangs in Fresh
Start’s offices and was given to Fresh Start by the Church of Scientology. [Ex. 97 at ¶ 9]. On the
plaque, the Church of Scientology congratulated Fresh Start for its recruitment efforts to bring
people into Scientology. [Id.].
More recently, the Church of Scientology, through David Miscavige, bragged about the
breadth and alleged efficacy of Narconon’s anti-drug programs.

[Archived page dated

01/16/2010 from scientologynews.info, attached hereto as Exhibit 136]. In addition, in a PDF
link on that same page, there is a “Fact Sheet” entitled “Narconon Drug Rehab Statistics, 2009”
that states Narconon “operates from its premiere drug rehabilitation facility at Lake Arrowhead
in Oklahoma.” [Id]. In short, David Miscavige is the glue that holds the Church of Scientology

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and all of its affiliates together. They simply cannot be separated, and therefore Defendant
Miscavige’s Motion to Dismiss should be summarily denied.
In his disjointed and rambling Motion to Dismiss, Defendant Miscavige detours into an
irrelevant self-aggrandizing spiel in which he glowingly describes himself as having “dedicated
his life to his faith and to the service of its parishioners.” [See Footnote 1 for a discussion on the
similarity of the language utilized in other documents]. Defendant Miscavige then takes a turn
into an all-too-familiar smear campaign against Plaintiffs as well as non-parties Karla Taylor and
Frank Deisler. 7 It is well known that Miscavige and the Church of Scientology regularly engage
in dirty tactics against those who oppose Scientology at any cost and having no bearing on the
issue at hand8 – in this case, the misappropriation of Plaintiffs marks and engagement in a
conspiracy to utilize those marks to benefit the Church of Scientology. Defendant Miscavige
salaciously (and inadmissibly) states that Francis Deisler is a convicted felon. The collective of
choices made by Mr. Deisler early in his life is one of the formative reasons he founded NAFC.9

7

As further example of Miscavige’s willingness to resort to dirty tactics, Defendant Clark Carr
(a Miscavige lackey) filed a patently frivolous lawsuit against Plaintiffs (and fraudulently joining
Deisler and Taylor individually) in the Superior Court of Los Angeles County, State of
California, Case No. BC559767, filed on October 6, 2014. [Exhibit 145]. Not surprisingly, the
“facts” Carr relies upon to plead his lawsuit are the same irrelevant, salacious and defamatory
remarks made by Miscavige in this Motion. Plaintiffs have sought removal of the Carr suit
(removed Nov. 12, 2014 to the U.S.D.C. Central District of California – Western Division, Case
No. CV14-8761) and will move to have the California Federal Court consider Carr’s allegations
as compulsory counterclaims improperly filed sub-rosa in California State Court to be brought
into this Court’s jurisdiction. Nonetheless, Miscavige has continually demonstrated that he will
go to any length to vex and harass Plaintiffs’ legitimate claims in this case and subvert the
jurisdiction of this Court. Defendants’ duplicitous shenanigans should not be tolerated.
8
Examples of abuse and harassment at Miscavige’s hands have been well-documented in the
case Rathbun v. Church of Scientology International, C2013-1082B, in the 207th Judicial District
in Comal County, Texas.
9
Defendant Miscavige’s attempts to discredit Mr. Deisler (and NAFC) on the basis of his
felonious background is ironic indeed, since Narconon was founded by a prison inmate, William
Benitez, who based his drug treatment regimen on the technologies of Scientology founder L.
Ron Hubbard. http://www.narconon.org/about-narconon/william-benitez.html
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Defendant Miscavige attempts to cast a disparaging light on Karla Taylor by detailing her reorganization of NAFC, but then fails to make any logical connection that might make that
information relevant.

Ms. Taylor’s reorganization of NAFC was not done for improper

purposes, and any insinuation to the contrary is utterly unsupported by any facts and completely
irrelevant to the Motion to Dismiss.
Defendant Miscavige then spends an inordinate amount of time attempting to discredit
NAFC by citing to various cases and documents cherry-picked to cast NAFC in an unfavorable
light, and improperly seeking judicial notice of the cases and various other documents. This type
of evidence is wholly improper in a Motion to Dismiss as it goes to the value of the violations
suffered by Plaintiffs, rather than whether Plaintiffs’ claims should survive Miscavige’s Rule
12(b)(6) motion. Moreover, the “evidence” cited by Defendant Miscavige is misleading.
In his Motion to Dismiss, Defendant Miscavige utilizes smoke screens and blatant
falsehoods to detract from the reality of the situation: David Miscavige is the chief architect of
the entire conspiracy to benefit the Church of Scientology, and as such, is a key Defendant in this
action. As set forth herein, Defendant Miscavige’s Motion to Dismiss should be denied.
ARGUMENTS AND AUTHORITIES
I.

STANDARD FOR MOTION TO DISMISS UNDER 12(b)(2) FOR LACK
OF PERSONAL JURISDICTION
When faced with a motion to dismiss based upon FED.R.CIV.P. Rule 12(b)(2), “the

plaintiff need only make a prima facie showing of personal jurisdiction to defeat the motion.”
OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998).
Plaintiffs’ burden to make the prima facie showing in the early stages of litigation is light.
Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000)
(internal quotations omitted). “[O]n a motion to dismiss for lack of personal jurisdiction, the

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allegations of the complaint are taken as true to the extent they are not contradicted by
affidavits.” American Land Program, Inc. v. Bonaventura Uitgevers Maatschappu, 710 F.2d
1449, 1454 (10th Cir. 1983), quoting Wyatt v. Kaplan, 686 F.2d 276, 282 n. 13 (5th Cir. 1982).
If contradicted by affidavits, the plaintiff bears the burden of responding with evidence to show a
dispute. Id. Any factual disputes will be resolved in favor of the plaintiff. Shrader v. Biddinger,
633 F.3d 1235, 1239 (10th Cir. 2011). Once the prima facie showing is made by the plaintiff,
the burden shifts onto the defendant to convincingly demonstrate the exercise of personal
jurisdiction would offend the traditional notions of fair play and substantial injustice. OMI
Holdings, 149 F.3d at 1091.
In order for the court to exercise personal jurisdiction over a defendant, the defendant
must have minimum contacts with the forum state, such that having to defend a lawsuit there
would not offend the traditional notions of fair play and substantial justice. Shrader, 633 F.3d at
1235, citing Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
2008). The contacts may either be general, meaning for any lawsuit, or specific, meaning for a
lawsuit arising out of particular forum-related activities. Id. General jurisdiction is based on the
“continuous and systematic” contacts with the forum state. Id. By contrast, specific jurisdiction
requires a showing that 1) the out-of-state defendant purposefully directed his activities at
residents of the forum state, and 2) that plaintiff’s injuries arise out of the defendant’s forumrelated activities. Id. Once all conditions are met, the court then determines whether the
exercise of personal jurisdiction would offend traditional notions of fair play and substantial
justice. Id. at 1240. This requires a determination that the exercise of jurisdiction is reasonable
in the circumstances. Intercon, 205 F.3d at 1247.

The court reviews the following factors in

deciding whether the exercise of jurisdiction is reasonable:

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(1) the burden on the defendant, (2) the forum state’s interest in resolving the
dispute, (3) the plaintiff’s interest in receiving convenient and effective relief, (4)
the interstate judicial system’s interest in obtaining the most efficient resolution of
the controversies, and (5) the shared interest of the several states in furthering
fundamental substantive social policies.
Id. at 1249. The interplay between the minimum contacts analysis and the determination of
reasonableness of the exercise of jurisdiction by the Court evokes a sliding scale analysis, e.g.
“an exceptionally strong showing of reasonableness may serve to fortify a borderline showing of
[minimum contacts].” OMI Holdings, 149 F.3d at 1092, quoting Ticketmaster-New York, Inc. v.
Alioto, 26 F.3d 201, 210 (1st Cir. 1994).
II.

SPECIFIC PERSONAL JURISDICTION EXISTS
Defendant Miscavige purposefully directed its activities towards Oklahoma and did so in

a manner that damaged Plaintiffs through his creation of and participation in the civil conspiracy
stemming from Oklahoma. The overt activities of a co-conspirator within the forum may subject
the other co-conspirator to the jurisdiction of the form. Newsome v. Gallacher, 722 F.3d 1257,
1265 (10th Cir. 2013), citing Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1069 (10th Cir. 2007).
The main requirement to trigger jurisdiction through conspiracy is that at least one of the
conspirators has pursued the conspiracy within the forum state. Id. (emphasis added). Further,
the Tenth Circuit acknowledges the circumstance where “a co-conspirator’s presence within the
forum might reasonably create the ‘minimum contacts’ with the forum necessary to exercise
jurisdiction over another co-conspirator if the conspiracy is directed towards the forum, or
substantial steps in furtherance of the conspiracy are taken in the forum.” Melea, 511 F.3d at
1070 (emphasis added).
In this case (and as set forth herein) the largest grouping of Defendants is located in this
forum, including the main players in the civil conspiracy: Defendants Narconon Arrowhead, The

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Pita Group, Inc., Gary Smith, Derry Hallmark, Kent McGregor. McGregor personally offered the
falsified C.C.D.C. certifications, claimed a relationship to Plaintiffs that did not exist, and owns
and operates numerous websites posting the falsified credentials of other Defendants. [Dkt. 3 at
¶¶ 159-163, 170, and 198-199].

The wrongful and damaging activities committed by the

Oklahoma Defendants were ordered by, or at least ratified by, David Miscavige in his
overarching control over the entire Narconon Network. Defendant Miscavige’s control and
oversight over Narconon Arrowhead combined with the harmful activities and the connection to
the Defendants located in this forum are more than sufficient to establish specific jurisdiction in
the Tenth Circuit.
Additionally, personal jurisdiction is triggered when the defendant is liable for
contributory infringement. The Supreme Court has recognized that contributory liability under
the Lanham Act exists beyond the party who actually misused the trademark. Inwood
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853-854, 102 S.Ct. 2182, 2188, 72
L.Ed.2d 606 (1982). Even if the defendant does not actually use the mark, it can be responsible
for infringement if it 1) induces another to infringe or 2) continues to supply its product to
someone it knows or has reason to know is infringing. Id. Contributory liability for infringement
is predicated upon direct infringement by another party. 1-800 Contacts, Inc. v. Lens.com, Inc.,
722 F.3d 1229, 1249 (10th Cir. 2013).
Contributory liability does not distinguish between infringement pursuant to § 32 of the
Lanham Act, § 43 of the Lanham Act or common law, which contain nearly identical elements
except that registration of the mark provides prima facie evidence of both the mark’s validity and
exclusivity under § 32. See Id. at 1238 and 1240; See also Utah Lighthouse Ministry v.
Foundation for Apologetic Information and Research, 527 F.3d 1045, 1050 (10th Cir. 2009).

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David Miscavige’s de facto personal control over the Narconon Network (and by proxy, its
websites) strongly indicates Miscavige’s knowledge and direction concerning the infringement
upon Plaintiffs’ marks, or at minimum, constitute a product to be used as a vehicle for
infringement.
The United States District Court for the Central District of California, in Metro-GoldwynMayer Studios, Inc. v. Grokster, Ltd., 243 F.Supp.2d 1073 (C.D.Cal. 2003) [See Ex. 35], found
specific jurisdiction where the Defendant was involved in contributory infringement connected
to the forum state. The Supreme Court, in Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482,
1486-87, 79 L.Ed.2d 804 (1984), recognized that purposeful availment is shown where the
effects of a Defendant’s conduct is felt in the forum state. Grokster is on point and was cited with
approval in the U.S. District Court for the Southern District of New York. See also Motown
Record Co., L.P. v. iMesh.Com, Inc., 2004 WL 503720 (S.D.N.Y. March 12, 2004)(citing its
approval of Grokster). [See Ex. 36].
Based on Defendant Miscavige’s contributory involvement in the infringement of its CoDefendants and the effects in Oklahoma, specific jurisdiction exists. Defendant Miscavige is the
puppeteer behind the curtain, and the Scientology-related entities and the Narconon Network are
his marionettes. Defendant Miscavige staged the entire play, from the creation and proliferation
of websites that wrongfully use Plaintiffs’ marks to utilizing the benefits from the misuse to
bolster the Narconon Network and the Church of Scientology. Defendant Miscavige was not
only knowledgeable and willing to use whatever means possible to profit the Church of
Scientology, he was the originating and driving force behind the infringement.

As such,

Defendant Miscavige’s Motion to Dismiss based on Rule 12(b)(2) should be summarily denied.
a. The Exercise of Jurisdiction is Reasonable under the Circumstances

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An analysis of the five Intercon factors weigh heavily in favor of finding reasonableness
in the exercise of personal jurisdiction over Defendant Miscavige in this case.

Plaintiffs

incorporate by reference in entirety the Responses to the other Defendants’ 12(b)(2) Motions to
Dismiss that have been filed in this matter regarding the application of the five Intercon factors
to the facts of this case. [See Dkt. Nos. 327 – 341, 354, 429, 437, 450, 451, 456, 457, 458].
III.

PLAINTIFFS’ COMPLAINT SUFFICIENTLY STATES CLAIMS
AGAINST THE MOVING DEFENDANTS
Plaintiffs hereby incorporate by reference in their entirety the Response to the Motion to

Dismiss of the Pita Group, Inc., et al. as well as all other Responses to Defendants Motions to
Dismiss that have been filed in this matter.
Additionally, Defendant Miscavige cited the Eastern District of Oklahoma case Banks v.
American Baptist Churches, CIV-14-100-RAW, 2014 WL 3037603 (E.D. Okla. July 3, 2014), in
which this Court dismissed claims against the Defendant American Baptist Churches for failure
to meet the pleading requirements. This case is easily distinguishable to the facts at hand. In
Banks, Defendant American Baptist Church was named as a defendant, but there was not a single
allegation against it in the Petition filed by pro se plaintiffs. Defendant Miscavige is named
throughout the Complaint, with allegations that are squarely in the “middle ground between
heightened fact pleading, which is expressly rejected, and allowing complaints that are no more
than labels and conclusions or a formulaic recitation of the elements of a cause of action.” Smith
v. U.S., 561 F.3d 1090, 1103 (10th Cir. 2009). Defendant Miscavige’s feeble attempt to utilize a
case before this very Court to dodge Plaintiffs’ fair notice of the claims against Defendant
Miscavige is, frankly, pathetic. Defendant Miscavige’s 12(b)(6) Motion should be summarily
denied.

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IV.

ALTERNATIVE REQUEST FOR LEAVE TO AMEND
Assuming arguendo the Court finds Plaintiffs failed to allege sufficient facts to plead a

claim for civil conspiracy, Plaintiffs hereby request leave to amend. Again, Plaintiffs incorporate
by reference in entirety the Response to the Motion to Dismiss of the Pita Group, et al. as well as
all other Response to Defendants’ 12(b)(6) Motions to Dismiss that have been filed in this
matter.
V.

PLAINTIFFS’ OBJECTION TO THE REQUEST FOR JUDICIAL NOTICE
AND REQUEST TO CONVERT INTO A MOTION FOR SUMMARY
JUDGMENT.
Defendant Miscavige’s Motion to Dismiss includes a Request for Judicial Notice that

attaches a series of irrelevant, misleading and prejudicial documents, which are wholly
inappropriate at this stage of the proceedings. The Request for Judicial Notice does not state the
purpose of the requests or how it supports Defendant’s argument. Pursuant to Fed.R.Evid. Rule
201, the court may take judicial notice of a fact that is either generally known in the court’s
jurisdiction or “can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Only the contents of such documents, not to prove the truth of the
matters asserted therein, may be utilized for judicial notice. Tal v. Hogan, 453 F.3d 1244, 1265
n. 24 (10th Cir. 2006). In the context of a motion to dismiss pursuant to FED.R.CIV.P. Rule
12(b)(6), the Court may only take judicial notice of documents that are central to the complaint
and there is no dispute regarding the documents’ identification or authenticity. Thomas v.
Metropolitan Life Ins. Co., 540 F.Supp.2d 1212, 1218 (W.D.Okla. 2008), citing Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215-16 (10th Cir. 2007) and Jacobsen v. Deseret Book Co.,
287 F.3d 936, 941 (10th Cir. 2002) (emphasis added). If this exception does not apply, then the

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Court may either convert the motion into one for summary judgment or refuse to consider the
extraneous information. Id.
It is unclear for what purpose Defendant Miscavige seeks to use the documents other than
to improperly admit evidence on the merits at the Motion to Dismiss stage. None of the
documents attached in Miscavige’s Request for Judicial Notice are referenced in the Complaint
or otherwise appropriate for use in reviewing a Rule 12(b)(6) motion to dismiss. Thus, when
such a motion under 12(b)(6) attaches matters outside the pleadings that are not otherwise
excluded by the Court, the Court shall treat the motion as one for summary judgment.
FED.R.CIV.P. Rule 12(d).
Summary judgment is properly granted where there exists “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P. Rule
56(a). The dispute is genuine only if the fact at issue is material. Faustin v. City & Cnty. of
Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). A disputed fact is “material” if under the relevant
substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259
F.3d 1226, 1231–32 (10th Cir. 2001). All reasonable inferences are drawn in favor of the
nonmovant. Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1247 (10th Cir.
2013). However, the nonmovant shall cite to portions of the record or otherwise show the court
that genuine disputes of material facts exist. See FED.R.CIV.P. Rule 56(c). Here, Miscavige
attaches eight (8) exhibits to his motion for the Court’s consideration. As set forth below,
Plaintiffs show how each of these items are either immaterial to the claims in this matter or are
the subject of genuine dispute.

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Exhibit 1: “No result found” search results from Oklahoma Secretary of State “Business
Entity” searches for “National Association of Forensic Counselors,” “American Academy of
Certified Forensic Counselors,” and “American College of Certified Forensic Counselors.”
Response:

The fact that Plaintiffs are not Oklahoma corporations is not at issue.

Plaintiffs admitted to their Nevada incorporation and Indiana place of business. [Dkt. 3 at ¶¶ 12]. Miscavige’s attachment of Exhibit 1 is irrelevant to his 12(b)(6) arguments, so the only
explanation is his use for the 12(b)(2) arguments. Because the fact of Plaintiffs’ citizenship is
not at issue and this Exhibit should be disregarded as superfluous.
Exhibit 2: Change of Name v. Francis John Deisler, No. 02C01-9909-MI-000109 Allen
Cir. Court (1999).
Response: Miscavige’s attachment of Mr. Deisler’s name change is completely irrelevant
and a red herring concerning the purported issues Miscavige raises in his Motion to Dismiss.
The name or change in name of one of the founders of National Association of Forensic
Counselors has no bearing on Plaintiffs’ claim or Defendants’ violations. Instead, Miscavige
tries to use it in combination to besmirch the character of nonparties to this action. Such
information is not central to the Complaint as required for Rule 201 judicial notice in support of
a motion to dismiss. Thomas, supra at 1218. Additionally, such a fact is not material for
purposes of summary judgment as required under Rule 56.

The claims herein involve

certifications, marks and logos belonging to Plaintiffs that were utilized by Defendants without
information to promote the Narconon Network and profit the Church of Scientology. The last
name of one of the founders neither supports Plaintiffs’ claims nor relates to Defendants’
defenses in this action. Moreover, Mr. Deisler is not even a Corporate Officer of NAFC, and has
not been since 2008. [See Third Affidavit of Karla Taylor, attached hereto as Exhibit 137 at ¶ 2].

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Exhibit 3: NAFC v. Ass’n for Treatment of Sexual Abusers, 1:09-cv-00093-TLS, N.D.
Indiana, Dkt. 16-3.
Response: Defendant attaches an e-mail chain about a 2008 dispute between NAFC and
Ms. Kimberly Marsh, the former President of the New Hampshire Chapter of the Association for
the Treatment of Sexual Abusers.

The dispute involved NAFC’s announcement of the

“Clinically Certified Sex Offender Treatment Specialist Credential,” which is unrelated to the
certifications at issue in this lawsuit. Thus, this letter is not central to the Complaint, nor is it
material to the claims asserted therein. Additionally, Miscavige provided the email chain solely
for the purpose of the asserting the truth of the matters contained in Ms. Marsh’s statements,
rather than just to show the contents. See Tal v. Hogan, supra at 1265 n. 24. Accordingly, such
use does not comply with the requirements for judicial notice in this instance.
Moreover, the “evidence” Miscavige is attempting to bring to the Court’s attention is
contradicted in total and disputed by the author of the email herself. Ms. Marsh formally
retracted her statements concerning NAFC due to the fact that they were based on faulty factual
premises. [Letter from NHATSA Former President Kimberly Marsh, attached hereto as Exhibit
138].
Exhibits 4, 5 & 8: Cal. Code of Regs., Title 9, §§ 13000 and 13035, “Certified Chemical
Dependency

Counselor:

Salary

and

Career

Facts”

available

at

http://degreedirectory.org/articles/Certified_Chemical_Dependency_Counselor_Career_and_Sal
ary_FAQs.html.
Response: Miscavige attaches the California statute concerning the certification with his
argument about California having a protected interest in the outcome of the lawsuit. However,
Miscavige’s argument is based upon the faulty logical conclusion that because California may

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have an interest in adjudicating the dispute that Oklahoma does not. Miscavige’s logical fallacy
begs the question yet still fails to detract from the truth of Oklahoma’s central location of
Defendants’ scheme.
Moreover, Miscavige’s attachment of California’s Code of Regulations is misleading and
misrepresentative of the facts concerning Plaintiffs’ certifications. Under the Code, California
sets forth certain organizations pre-approved to register and certify counselors.

Again,

Miscavige relies upon flawed logic to argue that because NAFC is not on the pre-approved list
therefore it is somehow an unauthorized certification. In reality, the California Department of
Alcohol and Drug Programs (the “ADP”) set forth answers to frequently asked questions
concerning counselor certifications in complete contradiction to Miscavige’s representations.
The ADP answers make very important distinctions: 1) an AODA professional is not forbidden
to hold certification with a board that is not on the pre-approved list; 2) Other boards are not
forbidden from certifying individuals in California; and 3) AODA licensed counselors are not
required to be certified by pre-approved organizations. Specifically, the ADP website provides,
If currently certified by a certifying organization not mentioned in the
regulations, does this mean I am not certified?
Those individuals who are certified with an organization that is not listed in the
regulations, and or recognized by ADP, must register with one of the listed
certifying organizations. The certifying organization maintains the option to grant
reciprocity if the education and experience meets the requirements of the
counselor certification regulations.
[See ADP Website FAQs, attached hereto as Exhibit 139]. There is nothing to prevent an
individual to receive additional certification above what is required by California regulations,
such as may be offered by NAFC. The regulations do not prevent employers, referral sources or
other supervisors to require additional certification or training beyond the minimum provided by
California. Additionally, the fact that NAFC is not listed in the California regulations does not

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minimize the recognition of NAFC across the United States, nor does Miscavige’s attempt to
show a search term on a random website as somehow minimizing the connection to NAFC’s
certification mark.
CareerOneStop Business Center is a website sponsored by the U.S. Department of Labor,
Employment and Training Administration. NAFC was the first search result when the following
certifications were queried: Certified Chemical Dependency Counselor (“CCDC”); Master
Addictions Counselor (“MAC”); Certified Sex Offender Treatment Specialist (“CSOTS”);
Certified Criminal Justice Specialist (“CCJS”); and Certified Forensic Addictions Specialist
(“CFAS”). [See CareerOneStop searches, attached hereto as Exhibit 140]. Additionally, the U.S.
Veteran’s Affairs’ Approved Certification Boards for VA Tier Level Advancement includes the
NAFC and several of its certifications. [See VHA SW Certification Master List, attached hereto
as Exhibit 141]. In Texas, the Houston Chronicle provides career advice and addresses NAFC
and its certifications. [See Houston Chronicle articles, attached hereto as Exhibit 142]. On
HealthSchoolGuide.net recommends only two organizations, one of which is NAFC.
[HealthSchoolGuide.net recommendations, attached hereto as Exhibit 143].

Specific for

Oklahoma, a series of Oklahoma state agencies and organizations presented a Domestic &
Sexual Violence and Stalking Partnership Conference, which was supported by Grant
2008WFAX-0014 awarded by the Office of Violence Against Women, U.S. Dept. of Justice to
the State of Oklahoma. During the Conference, two NAFC members were primary presenters, 1)
the Chairperson of the Oklahoma Coalition for Sex Offender Management, and 2) a Training
Specialist for the Texas Association Against Sexual Assault and Trainer at the Parole Officer InService Academy on Supervising Sexual Predators. [See Domestic Violence Workshop .pdf,
attached hereto as Exhibit 144].

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Exhibit 6 & 7: “MASTER ADDICTION COUNSEL (MAC)” available at
http://www.naadac.org/mac and Certification Mark, United States Patent and Trademark Office.
Response: Miscavige’s attachment of the MAC designation information is completely
irrelevant and also a red herring concerning the purported issues Miscavige raises in his Motion
to Dismiss. Miscavige provided the website solely for the purpose of the asserting the truth of
the matters contained therein, rather than just to show the contents. See Tal v. Hogan, supra at
1265 n. 24. Accordingly, such use does not comply with the requirements for judicial notice in
this instance. Moreover, the “evidence” Miscavige is attempting to bring to the Court’s attention
is incomplete and fails to recognize Plaintiffs claims in this case.
Defendants’ entire scheme to encourage vulnerable victims to seek treatment at Narconon
centers necessarily relied upon Defendants’ claimed ties to Plaintiffs. The certifications used by
Defendants were not merely letters of the alphabet, but, in fact, designations purposefully tied to
Plaintiffs’ organization. [Dkt. 3 at ¶ 161]. Specifically, Oklahoma Defendant Kent McGregor
routinely tied his purported MAC designation to NAFC. [See McGregor texas-drug-rehabs
website, attached hereto as Ex. 146; See also McGregor drug-rehab-colorado website, attached
hereto as Exhibit 147]. At a minimum, such information evidences a disputed fact and supports
the Court’s denial of Miscavige’s motion.
In sum, and notwithstanding the failure to separate the Request for Judicial Notice as its
own motion in violation of LCvR 7.1(c), Miscavige’s Request for Judicial Notice should be
disregarded because it does not fall within the category of documents that would be appropriate
for the Court’s consideration in its Motion to Dismiss. Accordingly, the Court should disregard
such attachments. Alternatively, Plaintiffs request the Court treat the Motion to Dismiss as one
for summary judgment and deny Defendant Miscavige’s requested relief.

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CONCLUSION
As set forth herein, Plaintiffs have presented sufficient facts to make a prima facie
showing of minimum contacts in the State of Oklahoma to establish personal jurisdiction over
Defendant David Miscavige. Under the circumstances of this case, all of the relevant factors
weigh in favor of the reasonableness of this Court exercising personal jurisdiction over David
Miscavige. Additionally, Plaintiffs have set forth a series of well-pleaded facts sufficient to set
forth Plaintiffs’ claims against all Defendants. Alternatively, Plaintiffs request leave to amend
the Complaint if necessary. Plaintiffs also object to Defendant’s Request for Judicial Notice and
request the Court to either disregard the documents attached or to treat the entire Motion as one
for Summary Judgment.
WHEREFORE, Plaintiffs National Association of Forensic Counselors, Inc. and
American Academy of Certified Forensic Counselors, Inc. d/b/a American College of Certified
Forensic Counselors respectfully pray the Court deny Defendant David Miscavige’s Motion to
Dismiss and Request for Judicial Notice, or alternatively to convert the it into a Motion for
Summary Judgment, deny said motion, and for such further relief as the Court deems just and
proper.
Respectfully submitted,
KEESLING LAW GROUP, PLLC
s/ David R. Keesling
David R. Keesling, OBA # 17881
Heidi L. Shadid, OBA # 22897
Sloane Ryan Lile, OBA # 21342
401 S. Boston Ave.
Mid-Continent Tower, Suite 450
Tulsa, OK 74103
(918) 924-5101 Phone
(918) 512-4888 Fax

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6:14-cv-00187-RAW Document 480 Filed in ED/OK on 11/13/14 Page 29 of 30

[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs National Association of
Forensic Counselors, Inc. and American
Academy of Certified Forensic Counselors, Inc.
d/b/a ACCFC of Certified Forensic Counselors

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6:14-cv-00187-RAW Document 480 Filed in ED/OK on 11/13/14 Page 30 of 30

CERTIFICATE OF SERVICE
I hereby certify that on November 13, 2014, I electronically transmitted the attached
document to the Clerk of Court using the ECF System for filing. Based on the records currently
on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF
registrants:
Charles D. Neal
Donald M. Bingham
David L. Bryant
Wm. Gregory James
M. David Riggs
John H. Tucker
Richard P. Hix
David E. Keglovits
John J. Carwile
Amelia A. Fogleman
Colin H. Tucker
Stacie L. Hixon
Rachel D. Parrilli
Kerry R. Lewis
Denelda L. Richardson
Alison A. Verret
Nathaniel Haskins
Robert D. Nelon
Thomas M. O’Leary
Todd A. Nelson
Ryan Pittman
Bert H. Deixler
Jeffrey K. Riffer
Robert E. Mangels
I hereby certify that on November 13, 2014, I transmitted the attached document via
USPS first class mail to the following:
D. Eric Mitchell
2113 Indian Trails
Jonesboro, AR 72401
s/ David R. Keesling
Attorney for Plaintiffs

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