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Attorney Loses Bid to Block Sanctions Hearing

Attorney Loses Bid to Block Sanctions Hearing

Courthouse News Service/December 7, 2012

A Florida attorney failed to block a "secret" hearing to decide if he will pay more than $1 million to the Church of Scientology for violating a settlement agreement.

Church of Scientology Flag Service Organization sued attorney Kennan Dandar for filing a wrongful death lawsuit against it in 2009, after Dandar entered into a confidential settlement in a similar case, agreeing to never again represent anyone suing Scientology.

Dandar had sued the organization in 1997 on behalf of the estate of Lisa McPherson, a member of the Church of Scientology who died of a pulmonary embolism in 1995, in Clearwater, Fla. McPherson, 36, was under the care of the Flag Service Organization, a branch of the Church of Scientology, at the time of her death. Florida's state medical examiner first ruled McPherson's death a negligent homicide, but later changed the cause of death from "undetermined" to an accident. The criminal charges against Scientology were dropped, but McPherson's family filed a civil lawsuit against the church.

After litigating the case for more than 7 years, the parties reached a settlement that barred McPherson's estate and its representatives, including Dandar, from bringing similar claims against Scientology.

Scientology sought to enforce the agreement against Dandar in 2009, prompting a Pinellas County Circuit Court judge to order Dandar to withdraw from the new lawsuit against the church.

Dandar appealed the decision, arguing that the settlement agreement was unenforceable because it contained a practice restriction which violated Florida Bar rules, but an appeals court upheld the decision.

The circuit court found Dandar in civil contempt for failing to comply with its 2009 order, and ordered him to pay $50,000 to Scientology and abandon the wrongful death action.

After the 11th Circuit reversed a decision blocking proceedings against Dandar in state court, Scientology sought a hearing to determine the attorneys' fees and damages Dandar allegedly owed it for breaching the McPherson settlement.

Dandar then filed a civil rights lawsuit to block a hearing scheduled for Nov. 26 and any other hearing on the matter.

He alleged that Scientology had acted under color of state law in imposing "a practice restriction" that prevented him from representing his client.

Dandar, however, did not allege that Scientology had conspired with the circuit judge or any other state actor in allegedly violating his constitutional rights, according to the ruling in the case.

U.S. District Judge Virginia Hernandez Covington disagreed with Dandar, noting that the "[u]se of the courts by private parties does not constitute an act under color of state law."

Scientology cannot be liable for constitutional violations for its resort to state courts, the ruling states.

"Finding no indication of corruption, this court determines that Dandar's complaint merely amounts to a disappointed litigant's attempt to revisit the legal conclusions of the state circuit court," (pg.15) Covington wrote.

The judge declined to review the state court's decision, noting that Dandar should file a state appeal if he thinks the court reached the wrong decision, not a civil rights action against private litigants.

Covington refused to grant an injunction, finding that Dandar was unlikely to succeed on the merits of his claim.

The injunction would also disserve public interest by granting federal courts unwarranted jurisdiction over a state court's decision, the ruling adds.

The Nov. 26 hearing, which involved Scientology submitting evidence to support its claim that it is entitled to more than $1.1 million in sanctions against Dandar, was closed to the public and press.

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