ORDER GRANTING SUMMARY JUDGMENT
This case was initiated in the Western District of Washington and transferred to this Court in September of 2013. Docs. 1,37-38. Plaintiff Universal Life Church Monastery Storehouse, Inc., is a non-profit corporation which, among other things, offers ordination services. Doc. 1 at 3. Defendant Cauley was previously associated with the Monastery, but now is the presiding Bishop of his own organization, the Universal Life Church World Headquarters, which also offers ordination services. Thus, the parties are in competition with each other. It has been said that "competition brings out the best in products and the worst in people."1 The competition between these
parties has not brought out the best in them and has culminated in this litigation.
The parties entered into a Mediation Settlement Agreement [Agreement] on December 17, 2012, to resolve prior litigation between Defendant and Plaintiffs. Doc. 98 at 2; Doc. 91 at 6. That litigation had been pending in the Circuit Court of the Second Judicial Circuit in and for Franklin County, Florida. Case No. 11-176-CA [hereinafter "state case"]. Id. The only issue in this case is whether Defendant violated that Agreement. If it is determined that the Agreemene was violated, the Agreement provides that Plaintiffs are entitled to an immediate injunction and liquidated damages of $10,000.00 for each violation, as well as reasonable attorney's fees and costs. See doc. 56 at 12-13.
Numerous motions are pending in this case, including motions for summary judgment filed by both Plaintiffs and Defendant Cauley. All pending motions are resolved in this case which has been referred to the undersigned upon the filing of the parties' notice of consent. Docs. 78, 82. The parties are reminded that any appeal must be filed with the United States Court of Appeals for the Eleventh Circuit.
Prior to ruling on the summary judgment motions, a pending motion to dismiss should be resolved. Defendant Cauley, who is pro se in this case, filed a "motion to dismiss or to transfer based on improper jurisdiction and/or venue and for Plaintiffs
1 Attributed to American inventor David Sarnoff.
2 The Agreement has been filed as an attachment to Defendant's answer, doc. 56 at 12-13, and filed by Plaintiffs as Ex. 1 to the George Freeman Declaration. Doc. 95 at 5-6.
Case No. 4:13cv546-CAS
failure to follow terms and/or conditions of mediation settlement agreement." Doc. 103.
That motion was denied, doc. 107, because three days after Defendant Cauley filed that
motion to dismiss, doc. 103, he filed an "amended motion to dismiss or to transfer
based on improper jurisdiction and/or venue and for Plaintiff's failure to follow terms
and/or conditions of mediation settlement agreement." Doc. 105.
In the amended motion, Defendant asserts that he is an "expert when it comes to contracts" and argues this case is not a constitutional issue, but a state court issue (breach of contract). 'd. at 2-3. Defendant argues that Plaintiffs did not comply with the Mediation Settlement Agreement [hereinafter Agreement] because Plaintiffs did not "file an appropriate affidavit with copies of the offending publication attached." 'd. at 4. Defendant also contends that only a state court in Florida has jurisdiction over this case. 'd. at 5.
Plaintiffs were directed to file a response to that motion, doc. 107, and have complied. Doc. 10B.3 Plaintiffs assert that Defendant's claim of noncompliance with the Agreement "is without merit." 'd. at 1. Plaintiffs advise that they have complied with the Agreement and Defendant's motion should be denied. 'd. at 2-3.
Defendant Cauley has filed repetitious motions. He previously filed a similar motion in October of 2013, arguing this case belonged in state court, the jurisdictional amount in controversy was not met, and this Court lacked jurisdiction over this
3 Defendant Cauley filed a reply, doc. 109, to Plaintiffs' response, doc. 10B, to Defendant's motion to dismiss, doc. 105. Defendant did not seek leave of court to file the response as required by N.D. Fla. Loc. R. 7.1(C}(2}. Thus, the reply, doc. 109, has not been fully considered. Moreover, a cursory review of Defendant's arguments in the reply appear to be duplicate arguments concerning Plaintiff's failure to comply with the Agreement which were also raised in the motion for summary judgment. That issue is addressed in more detail under the "Analysis" portion of this Order.
proceeding. Doc. 41. That motion was denied as unfounded. Docs. 48, 50.4 Prior to
the transfer of this case, Defendant Cauley had also filed a motion to dismiss on the
basis that jurisdiction should be in a Florida state court and venue was improper. Doc.
24. That motion was granted in part and denied in part. Doc. 37. The Court concluded that subject matter jurisdiction exists pursuant to the federal diversity statute, 28 U.S.C. § 1332. Doc. 37 at 3-4. To the degree Defendant Cauley is once again arguing that this Court lacks subject matter jurisdiction, that argument has sufficiently been considered and rejected. See docs. 37, 50. It is rejected a final time. This Court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1332(a).
Defendant's argument that Plaintiffs did not comply with the Agreement, doc. 105, is also rejected. Plaintiffs point out that the Agreement permits an "aggrieved party" to "either seek to reopen the [prior action] or file a separate action for enforcement of this Settlement Agreement." Doc. 108 (emphasis added). Because the Agreement does not establish conditions precedent to bringing a lawsuit, and because a new, separate lawsuit is permissible, the amended motion to dismiss, doc. 105, is
On October 27, 2014, Defendant Cauley filed a motion to allow introduction of new evidence. Doc. 113. That motion is Denied. The deadline for filing materials to be considered in ruling on the parties' opposing summary judgment motions was August 12,2014. Doc. 107. Good cause for the belated submission has not been shown and,
4 Defendant Cauley filed an appeal, doc. 52, of that Order, doc. 50, as well. The appeal was dismissed in August 2014 for lack of jurisdiction because the Order being appealed was a non-appealable, non-final order. See case number 13-15917, Eleventh Circuit Court of Appeals.
moreover, review of the evidence reveals it is not relevant to the issue of whether or not Defendant Cauley violated the terms of the Agreement. To the degree Defendant is seeking to introduce such evidence at trial, the motion should still be denied.
Allegations of the Complaint
Plaintiffs' complaint alleged that Defendant "published false and defamatory statements about Plaintiffs." Doc. 1 at 1. Plaintiffs alleged "at least 13 violations" and have sought liquidated damages and an immediate injunction. Id. at 2. The alleged violations concern statements made or published by Defendant Cauley after signing the Agreement, and also prior statements or postings that Defendant did not remove which were in existence at the time the Agreement was signed.
Summary Judgment Motions
Denial of the two motions, docs. 105 and 113, discussed above leaves pending two motions for summary judgment. Defendant filed a motion for summary judgment, doc. 91, on June 5, 2014. Plaintiffs, represented by counsel, filed their own motion for summary judgment on June 11,2014. Doc. 98. Defendant filed two replies to Plaintiff's motion, docs. 102 and 104, and Plaintiffs filed a response to Defendant's motion, doc.
101. Because those responses were filed prior to entry of an Order providing notice of the obligation to respond under Rule 56 and N.D. Fla. Loc. R. 56.1, the parties were provided an opportunity to file amended responses if they desired to do so. Doc. 107. The Order made clear that the parties were not required to do so if they wished to stand on the responses already filed, but were permitted to do so by amending their responses. Id. Only Plaintiffs filed amended responses.5 Docs. 110-111.
Legal standards governing a motion for summary judgment
On a motion for summary judgment, the moving party initially has the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23,106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If accomplished, the burden shifts to the non-moving party to come forward in response with evidentiary material demonstrating a genuine issue of material fact for trial. Id. An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co.! Inc., 357 F.3d 1256,1259 (11th Cir. 2004) (citations omitted). As the moving party, Plaintiffs must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co .. LTD. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is insufficient. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252,106 S. Ct. 2505, 2505, 91 L. Ed. 2d 202 (1986)). All reasonable inferences must be resolved in the light most favorable to the nonmoving party, Watkins v. Ford Motor Co., 190 F.3d 1213,1216 (11th Cir. 1999), if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380,127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (cited in Ricci v.
5 Defendant Cauley filed a reply to Plaintiffs' amended response. Doc. 112. However, Defendant again did not file a motion seeking leave to file a reply as required by N.D. Fla. Loc. R. 7.1 (C)(2). The unauthorized reply has not been considered.
DeStefano, 129 S.Ct. 2658, 2677 (2009)). "Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for triaL" Matsushita Elec. Industrial Co.! 475 U.S. at 587 (internal quotation marks omitted) (quoted in Ricci v. DeStefano, 129 S.Ct. at 2677).
"Rule 56 (e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for triaL'" Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir.1997), cert. denied 522 U.S. 1126 (1998) (quoting Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e))). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477
U.S. at 324, 106 S. Ct. at 2553.
Plaintiffs may also move for summary judgment, with or without supporting affidavits, upon all or any part of their claim. Fed. R. Civ. P. 56(a). Summary judgment shall be granted in favor of Plaintiffs "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A claimant is entitled to summary judgment only when no genuine issue of material fact exists, the papers on the motion demonstrate the right to relief, and every one of the defenses asserted legally are insufficient." 10B CHARLES A. WRIGHT, ARTHUR R. MILLER, &MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE § 2734 (1983). The motion should be denied if there is a fact issue as to any defense raised. United States v. Carter, 906 F.2d 1375,
1377 (9th Cir. 1990) (citing § 2734). Since Plaintiffs (as the party with the burden of proof) have a heavier burden on summary judgment, the Court will consider the Defendant's motion first. If Defendant's motion is denied, the Court will consider whether Plaintiffs are entitled to judgment as a matter of law.
The complaint was filed on April 2, 2013, alleging defamation and breach of the Agreement. Doc. 1. The complaint names three Defendants in this case: Michael J. Cauley, Jane Doe Cauley (wife of Michael Cauley), and Universal Life Church World Headquarters, Inc., a Florida corporation. Id. at 1. Plaintiffs subsequently dismissed the Jane Doe Cauley Defendant. Defendant Universal Life Church World Headquarters, Inc., is in default. See doc. 50. No motion for default judgment has been filed pursuant to FED. R. CIV. P. 55(b). Only Defendant Michael J. Cauley [Defendant] has been defending this case.
Undisputed Rule 56 evidence6
6 Both Plaintiffs and Defendant contend there are no genuine issues of material fact. Doc. 91 at 2; Doc. 98 at 2. To the degree the parties have asserted facts without pointing to any evidentiary support in the record, those facts have not been considered. The local rules of this Court will deem facts admitted only if supported by materials in the record, and referenced with sufficient detail to "permit the court to readily locate and check the source." Thus, unsupported facts without evidentiary support cannot be considered. See Homes v. City of Atlanta, No.1 :08cv3560-JOF-CCH, 2010 WL 1328713 at *3 (N.D.Ga. Jan. 27, 2010).
Defendant submitted a statement of facts within the summary judgment motion, doc. 91 at 2-10, much of which is irrelevant, but more importantly, the statements of material fact are unsupported by citations to record evidence. See doc. 91 at 6-10. The statements which do point to attached exhibits do not concern the merits of this case but, rather, Defendant's dissatisfaction with discovery production. See doc. 91 at 4-10.
Plaintiffs provided a separate statement of facts, doc. 111, but Plaintiffs' motion for summary judgment, doc. 98, incorporated facts within the motion. See id. at 2-10.
The terms of the Agreement primarily at issue are from paragraph 1:
The parties, their agents or employees on or before January 15, 2013[,] shall remove anything about one another or their respective churches from all web sites under their control. Thereafter they shall not publish or post anything about one another or their respective churches on any form of electronic communication including web sites, email and social networking cites. The same terms as outlined above apply to print media and any verbal statements. These prohibitions shall not apply to postings by third parties on a minister's network, forums or the like; however, the parties shall employ reasonable safeguards to protect against third party comments as to the respective parties and their church(s), and if such third party comments appear the party owning or controlling the publishing site shall agree to remove such comments upon receipt of a written (nonelectronic) request to that effect.
Doc. 91, Ex. B-1. The Agreement provides the remedy for a violation in paragraph 6:
In the event of a violation of this Settlement Agreement the aggrieved party shall be entitled to an immediate injunction upon filing an appropriate affidavit containing as an attachment the offending publication along with a copy of this Settlement Agreement, plus the aggrieved party shall be entitled to a liquidated damage amount of $10,000.00 and reasonable attorney's fees and costs for each violation. The aggrieved party may either seek to reopen the pending action or file a separate action for enforcement of this Settlement Agreement.
Defendant Cauley is a resident of the State of Florida and resides in Franklin County, Florida. Doc. 99 at 1 (Freeman Supplemental Declaration).? Universal Life Church World Headquarters, Inc., is a Florida corporation operated by Defendant Because those factual assertions are more detailed, the Court has relied upon those statements, notwithstanding that several of the citations are incorrect. For example, in 11 4, Plaintiffs cite to document 54 for support, doc. 98 at 2, but document 54 is a notice of appeal. Plaintiffs' citation at 11 6 to docs. 37 and 57 for the default against ULCWH is incorrect, and the citation to "exhibit 5" to the George Freeman affidavit in 11 8(d) is incorrect because there is no exhibit 5, although there is an exhibit B-5. ? Because Defendant is pro se, the evidence relied upon is cited by document number and by title. Cauley.8 Doc. 98 at 2, citing doc. 1 at 6 (Complaint, 1[4.23). Notably, Defendant's motion to dismiss, doc. 24, was submitted on Universal Life Church World Headquarters, Inc., letterhead. Doc. 24 at 1. The address listed is 803 Tallahassee Street, Carrabelle, FL 32322-3220. Id. That is also Defendant Cauley's address. See doc. 91 at 13. Defendant Cauley has admitted in this litigation that he is the "registered agent" for Universal Life Church World Headquarters, Inc. Doc. 24 at 6.
On December 10, 2013, Jeremy Brant9 visited a website which he states is owned by Defendant Michael Cauley. Doc. 96 at 1 (Brant affidavit). The website is identified as www.ulcnetwork.com. and on December 10, 2013, he found text which asserted that the "only legal faith based Universal Life Church is the Universal Life Church World Headquarters of Carrabelle, Florida." Doc. 96 at 1-2 (Brant affidavit); see also doc. 96, Ex. A (doc. 96 at 6). The website advises that "Universal Life Churches in Tucson, AZ, Seattle, WA, and/or Modesto, CA, are churches without a Traditional Doctrine of Faith." Id. It also states that "ministers of these other Universal Life Churches, monasteries or so called seminaries are not even looked at as legitimate ministers for serving as wedding officiants in all 50 US states and/or countries." Id. Defendant Michael Cauley is listed as "President of the Universal Life Church World Headquarters." Id. at 7.
8 Defendant Cauley takes issue with Plaintiffs' assertion that the Universal Life Church World Headquarters, Inc., is the alter ego of Defendant Cauley. Doc. 91. Defendant incorrectly argues he does not have a mental condition or illness. Used in the legal sense, an "alter ego" is when a corporation, limited liability company, or other business entity is established to provide a legal shield for the person controlling the operation. Defendant's arguments on this pOint are misplaced.
9 Mr. Brant is a "former employee of the ULC Monastery." Doc. 96 at 1. > Jeremy Brant provided copies from the website "RationaIWiki" which shows contributing comments from a user named "StmichaeI1060" in February and September of 2013. Doc. 96 (Brant affidavit), Ex. C (doc. 96 at 29,31-32). That user name is utilized by Defendant Michael Cauley.10 Doc. 96 at 2. Brant has provided evidence that Defendant posted the following statements on RationalWiki on February 17, 2013: The idea of Wiki pages is to be informative, not a marketing campaign. The old version is selling worthless Doctorate of Divinity degrees from a worthless well known degree mill. Perhaps I went overboard and I will correct that. But references to free this or $300 for that, there should be no place for that. Just for the record, they say FREE ordination, of course it is free it is a sacrament. What they don't tell you is how much people pay for ministry credentials. It is the old bait and switch. Doc. 96 at 29 (Brant's Ex. C). Another post made that same day said: Regarding the Monastery, it is the ULC Monastery Storehouse in Seattle, WA. The ULC Monastery is out of Tucson, AZ. and is still owned by Daniel Zimmerman. This Monastery Storehouse led by George Martin Freeman (Brother Martin) of Seattle operates out of UPS Store on Broadway and are operating in contempt of a 1985 Order from the Kings County Superior Court http://www.tinyurl.com/themonastery. * * * The ULC Seminary is not recognized by the ULC in Modesto or the ULC in Florida. Any Long submits ordinations request through Modesto. Modesto calls it a "Known Website." Any Long Smith is incorporated under the name of Quest Ministries. If you need any citations on any of this, let me know. The Monastery website I provided is cited by Seattle Publication called the Stranger. In these you will see more insights on Hensley the conman. I hope this helps. 10 Defendant Cauley has not presented any evidence to dispute that he used the user name "StmichaeI1060," nor has he presented evidence which refutes that he is the president and registered agent for Universal Life Church World Headquarters. Case No. 4:13cv546-CAS Doc. 96 at 30 (Brant's Ex. C). On September 11, 2013, Defendant entered a post which included this statement: "The only thing that can be verified is that Hensley was a conman, the Church has had a history of legal issues and for the most part it is a money making endeavor." Id. at 32. Defendant also stated:
There are a bunch of garbage sources that were originated for simple self promotion, not any real iron clad sources because the fact [is] the ULC Modesto is one big scam. None of this ULC stuff deserves a spot is [sic] the history books, all of it is a bunch a [sic] folks running around looking to make money. You have one that is Christian, one is not, it is all about how much money they can make?
Doc. 96 at 32 (Brant's Ex. C).
Defendant Cauley made a revision to the "Universal Life Church" posting on RationalWiki on September 12, 2013. Doc. 96 at 35 (Brant's Ex. D). Brant avers that these postings demonstrate that Defendant Cauley is "able to remove each and every posting occurring before the Mediation Settlement Agreement." Id. at 3. Brant states that control of a user's account "is within the power of the user." Id. Furthermore, if a "user is 'locked out' of an account, loses a password, etc., the user may regain access to the account by following the requirements or protocol of the respective host of the account." Id.
Brant also submitted an email from William Welch dated in April of 2014 who said he had been contacted by "Brother Michael" who told him that the ordination offered by Universal Life Church Monastery was "illegal and not recognized by any state especially Georgia" where Welch was located. Doc. 96 at 40 (Brant's Ex. E). Plaintiffs provided an affidavit of M. L. Vega who stated that on December 17, 2012, after the Agreement was signed, Defendant Cauley spoke with a minister identified as Cheri Lynn Messeck, and "told her that her ordination was not valid and her faith was not genuine." Doc. 97 at 1 (Vega affidavit). Defendant "Cauley also told her that the other Universal Life Churches were not valid, and that she would have to pay each year to renew her ordination." Id.
Plaintiffs submitted another affidavit from D.J. Toellner who reported communicating "with between 10-15 individuals via phone or email after the Mediation Settlement Agreement dated December 17, 2012, who have been upset or asking for their ordinations to be revoked after dealing with Michael Cauley." Doc. 94 at 1 (Toellner affidavit). Those persons reported that Defendant "Cauley represented to them that the ULC Monastery members 'worship Satan.''' Id. Toellner also avers that Defendant Cauley has telephoned people "berating them about not having a 'legal' or 'faith based ordination' from ULC Monastery. Id. Toellner asserts that Defendant's statements are not true. Id.
An affidavit from Charlie Kelson states that he has received telephone calls from "customers of the ULC Monastery who have complained that Michael Cauley specifically defamed our church after the Mediation Settlement Agreement dated December 17, 2012." Doc. 92 at 1 (Kelson affidavit). In one such telephone call, Defendant told a woman "that the Universal Life Church Monastery ordinations are not legal and that any wedding that she performs will be void." Id.
An affidavit from Cory Weimer states that Defendant Cauley had a telephone call with Terry Sikora and told her that "he was the head of the new Universal Life Church," and that she needed to buy products from him for her previous ordination with the ULC Monastery to be valid." Doc. 93 at 2 (Weimer affidavit). Sikora placed an order but noticed that her payment went "to the personal (non-business) PayPal account for Theresa Cauley." Id. When Sikora attempted to question the payment, she stated that Michael Cauley "became combative and told her that his ULC was the only valid Universal Life Church and that as a Christian, she needed to leave the ULC Monastery because 'they ordain Satanists.'" Id. Plaintiff George Freeman submitted an affidavit which provides evidence of posts by Defendant which were in existence when the Agreement was signed, which were not removed by the January 15, 2013, deadline. Doc. 95 (Freeman affidavit). Freeman advises that all copies which are presented in Composite Exhibit B "were printed from April 1, 2013[,] through June 13, 2013,11 demonstrating their existence after [the] January 15, 2013, deadline ...." Id. at 2. The copies "are true and accurate copies of what [Freeman] viewed and what others are able to view when accessing those websites." Id. The postings are from two websites -"ulcnetwork.com" and "ulcministersnetwork.com" which are "owned and controlled by Defendants Cauley and the Universal Life Church World Headquarters, Inc." Id. Exhibit B-1 was printed on April 1, 2013, from The Universal Life Church Minister's Network [hereinafter Network]. Doc. 95 at 5. A blog was published by "Brother Michael" on October 7, 2010, which asserts that the Monastery of Seattle "offers Free Ordination but does not deliver Free Ordination." Defendant wrote that they send an ordination which is "not valid" because they "require you to purchase Ministry Supplies." Doc. 95 at 9 (Ex. B-1). Defendant suggests that they "send a bunch of 11 "The date each [webpage] was printed is shown either in brackets directly after the website address on the bottom left ... or in the very upper left of the document ... . " Doc. 95 at 2. gimmicks" such as a useless 10 without a picture, a useless parking permit, and a "press pass" which "is completely a joke ...." 'd. at 9-10. Defendant states: "The Monastery is nothing but a storehouse of ministry products in a room over Dominoes on Broadway in downtown Seattle." 'd. at 1 O.
Exhibit B-2 was printed on April 1 ,2013, from the Network, and contains a blog published by "Brother Michael" on November 20,2010, in which he "strongly urge[s] all ministers of these other ULC Churches [identified in preceding paragraph as ULC of Modesto and Seattle] to consult with your attorney, especially those with the ULC Monastery Storehouse of Seattle, WA. Ordination with the Monastery Storehouse may produce serious legal ramification[s] to you in the immediate future." Doc. 95 at 13 (Ex. B-2). After that warning, Defendant cites as an example that a man in Arizona was charged "with fraud, criminal impersonation, forgery, tampering with a public record and theft" because he received "fees" for marrying people. 'd.
Exhibit B-3 was also printed on April 1, 2013, from the Network, and contains a blog published by "Brother Michael" on December 12, 2010, in which he states that "The Monastery ... is behind turning their own Minister in." Doc. 95 at 17 (Ex. B-3). Defendant advised that the Monastery was "purposely" tracking Ministers who were ordained by Modesto or Defendant's organization, ULC. Id. Defendant warned: "If you are ordained by Modesto or us and are on Monastery Minister's Network you are in danger of repercussions as such as welL" 'd. Defendant stated that the minister was wrongfully using a trademarked logo from the Methodist Church and another pastor was upset over the use of the "trademarked symbol for a profile and be a part of a Church led by an anti-Christian who ordained followers of satan." 'd. Defendant also added:
"To be Christian, to display a Christian Logo and to partake on a Network of a so called
Church that ordains followers of satan and is led by an atheist it is absolutely foolish."
'd. Defendant also added a comment to that blog in which he stated: "If you are
partaking on the Minister's Network or if you are associated with the Monastery you are
placing yourself at a huge risk. This man is not stable, he has issues, more than just
suicidal as he has admitted. Be warned." 'd. at 18.
Exhibit B-4 was printed on June 13, 2013, from the Network, and contains a blog published by "Brother Michael" on December 16, 2010, in which he states that "the leaders of our non-Christian non-affiliated -copycat Universal Life Churches in Modesto and/or Seattle have made one too many trips to the Mickey D's drive through." Doc. 95 at 21 (Ex. B-4). Defendant goes on to question whether O.J. Simpson went through Mickey D's after murdering his wife Nicole and states that Modesto and Seattle "think Ordination & Big Macs are one in the same ...." 'd. He suggests that Modesto and Seattle "ordain anyone and everyone, including dogs, cats, dead grandmothers or ... followers of satan." 'd. 22. He further states "perhaps they ordained the anti-Christ or are in a race to see who does first?" 'd. at 22. He later posts a comment which refers to Plaintiff Freeman as "this Presiding Pedophile in Seattle." 'd. 23. At another point he states: "I do not condone the 4% of Catholic Priests who abused Children, nor will I condone a Presiding Pedophile in Seattle." 'd.
Exhibit B-5 was printed on June 13, 2013, from the Network, and contains a post from "Brother Michael" on May 20,2013, in which he states that "certificates and/or titles from the Monastery are FAKE, completely worthless, they are hardly the foremost authority and whatever they say should not be taken with much stock. If they have worthless certificates and/or titles, it is fair to say what they state or claim is not much
more credible as welL" Doc. 95 at 27 (Ex. B-5).
Exhibit B-7 was printed on June 13,2013, from "The Official Universal Life Church World Headquarters" website. Doc. 95 at 33 (Ex. B-7). There, Defendant Cauley posted comments on March 30, 2011, which stated that "The Monastery" had distorted the truth and made a "Blatant Attempt" to undermine the credibility of ULCWH and cover up their own Better Business Bureau Reliability Report. Id. The website states that The Monastery had "only a B rating" because it had "been non-cooperative, has refused to answer multiple requests for information and the BBB cannot verify how long The Monastery has been in business." Id. at 34.
Exhibit B-8 was printed on April 12, 2013, from the Universal Life Church network blog. Doc. 95 at 37 (Ex. B-8). There, comments posted on April 8, 2011, state that the ULC Monastery offers "clergy parking permits" which "serve no purpose" and are "only good on Church Grounds ...." Id. Additional comments include: "I want to caution you regarding some of the items this Monastery sends out in their Ministry Credential Pack of theres [sic], Press Passes and Clergy Parking Permits." Id. at 38. "There [sic] Minister Kits more resemble Batman Activity Sets and these two items are not legal, your local law enforcement and/or Attorney General, Office of Consumer Protection will attest to this." Id.
Exhibit B-9 was also printed on April 12, 2013, from the Universal Life Church network blog, and presents a post from Defendant Cauley from April 8, 2011, entitled "ULC Monastery -Behind Closed Doors." Doc. 95 at 41 (Ex. B-9). There, Defendant Cauley makes statements indicating he is defending himself from Plaintiff George
Freeman and suggesting that Freeman and The Monastery are involved in a scam for free ordinations. 'd. at 42-43. Defendant Cauley asks "What kind of Church would put the screws to their own Ministers?" 'd. at 43. He also asks: "What kind of Church would intentionally mislead prospects & bait them with FALSE FREE ORDINATION CLAIMS.
Exhibit B-11 was printed on April 1, 2013, from the Universal Life Church network blog. Doc. 95 at 49-53 (Ex. B-11 ).12 In a third post made on April 8, 2011, Defendant Cauley states: "Do not confuse us with other Universal Life Churches in Modesto or Seattle. We are 100% legitimate and 100% faith-based." 'd. at 49. Cauley warns that "these other Churches" are "online ordination assembly lines" and wedding ceremonies performed by their ordained ministers may not be legal and may result in the minister facing criminal charges."
Exhibit B-12 was printed on April 12, 2013, from the Universal Life Church network blog. Doc. 95 at 55-58 (Ex. B-12). In a post made on April 17, 2011, it is asserted that "Modesto or Seattle do not offer legal faith based ordination." 'd. at 56. "Modesto or Seattle do not adhere to any doctrine of faith ...." 'd. at 57. The website blog also asks: "Do you want to be an ordained Weeding Minister or Do you want to be a legal &real Faith Based Minister? We are the only Universal Life Church to offer legal faith based ordination." 'd. The blog dec/ares: "As a true, legal, real Faith based Minister, you can serve as a wedding officiant, but you are also ordained within and recognized as a legal and real Minister within the Christian Faith." 'd. It goes on to ask:
12 This exhibit is nearly illegible. Notably, the blog still exists on the website: ulcnetwork.blogspot.com/2011 ... which was reviewed for clarity.
"Do you think Billy Graham, Jerry Falwell, Jesse Jackson, etc., etc., or even the Ministers or Priests at every Church in your community was ordained by the ULC in Seattle or Modesto?" Id. Defendant Cauley answers "No," and states he "can't embrace either as a legitimate Church ... because both the Universal Life Church in Modesto and this Monastery Storehouse in Seattle embrace satanism and atheism, they are famous for ordaining followers of satan and atheists." Id.
Exhibit B-13 was printed on April 8, 2013, from the Universal Life Church's Blog. Doc. 95 at 60-58 (Ex. B-13). It is essentially the same posting which was made on April 17,2011, on the Universal Life Church network blog. Cf. Doc. 95 at 55-58.
Exhibit B-14 was printed on June 13, 2013, from the Universal Life Church network blog. Doc. 95 at 64-66 (Ex. B-14). A post made on May 4,2011, declares that the Universal Life Church of Modesto and the ULC Monastery Storehouse of Seattle "ordain followers of Satan or Atheists." Id. at 64. The website proclaims that "It is in God We (Americans & Christians) Trust. It is NOT by George or Brother Andrew We Listen Too." Id. at 64. Another comment states: "George (George Martin Freeman) calls himself a presiding chaplain of this Monastery Storehouse of Seattle." Id. at 65. It concludes: "These two individuals, their so called Churcches are not in any way part of the Universal Life Church, the one that adheres to its Christian Origin and Christian Name." Id.
Exhibit B-15 was printed on June 13,2013, from the Universal Life Church network blog. Doc. 95 at 68-73 (Ex. B-15). It is proclaimed that the Universal Life Church (in Carrabelle, Florida) is "The Only Universal Life Church Who Can Ordain REAL Faith Based Ministers or Priests." Id. at 69. It also states: "The only thing Ministers ordained by the ULC Modesto or ULC Monastery are PERMITTED to do over and above what is afforded to them by the FIRST AMMENDMENT [sic] is OFFICIATE WEDDINGS." 'd.
Exhibit 8-16 was printed on June 13, 2013, from the Universal Life Church network blog. Doc. 95 at 75-79 (Ex. 8-16). A blog posted on May 4, 2011, "launches In God We Trust Campaign." 'd. at 75. It states: "Our Country, my fellow Americans and Christianity has [sic] been under attack by those who I consider home grown terrorists looking to destroy the foundation of which our country was founded upon." 'd. at 75-76. "Yes I view the Universal Life Church in Modesto, CA. , and this upstart ULC Monastery Storehouse as organizations looking to undermine God, America and Family, while helping this revolt and rebellion against God, America and Family." 'd. at 76. The blog suggests that "they want to take away the 'In God We Trust' Motto" and asks "wasn't taking prayer from our schools, or supporting the murders of innocent babies enough?" 'd. At the bottom of the blog are advertisements for products such as a ball cap and t-shirts. 'd. at 76-78. A two-sided t-shirt advertising Universal Life Church & Christian Academy asks on the front: "Which One Would Jesus Choose?" 'd. at 78. "Our Church or The Ones Who Ordains [sic] Followers of Satan or Atheists." 'd. The back of the t-shirt has a picture of "Satan Wipes." 'd.
Exhibit B-17 was a blog published on the Universal Life Church website on May 16,2011, and printed on June 13, 2013. Doc. 95 at 81-83 (Ex. B-17). The title is "Universal Life Church -Only Evil Would Ordain Evil." 'd. at 81. It states the following:
Our Universal Life Church name actually means Catholic or Christian Life Assembly, believe it or not but there are other organizations that use our
Case No. 4:13cv546-CAS
Christian name to disguise their hidden agenda of ordaining followers of satan, atheists and other non-Christian individuals.
The ULC in Modesto and Seattle are two that do promote satanism. Yes you read this correctly they ordain followers of satan. Satan in my book is our enemy, satan stands for everything evil, murders, corruption, terrorism, monetary issues, rapes, thefts, abortions, drug dealers pushing their crack cocaine and other drugs on our innocent children, or pimps forcing young women into prostitution and etc., etc.
To ORDAIN followers of satan, something or someone so evil, the act of or the individual performing the ordination has to be an evildoer themselves with a very sinister hidden agenda.
Don't fall for their interfaith, or equal rights claims, satanism especially or even atheism are more so cults, rather than something that should be honored or glorified by a so called Church, bestowing upon these individuals the sacrament of ordination IS WRONG.
Anyone who associates with these breeding grounds for satanists or atheists, you are walking hand in hand with evil yourself. Stay clear of the Universal Life Church in Modesto, CA., or this ULC Monastery Storehouse or whatever they claim to be located in Seattle, WA.
Doc. 95 at 81. The blog advises that if you were already ordained by those other churches "and find their satanic ways offensive, get away from them as fast as you can." 'd. at 82. The blog goes on to declare: "We here at the Universal Life Church World Headquarters DO NOT ORDAIN Satanists or Atheists as welL" 'd.
Exhibit 8-18 was printed on June 13, 2013, from "The Official Universal Life Church World Headquarters" website. Doc. 95 at 85 (Ex. 8-18). There, Defendant Cauley posted a "statement" declaring the beliefs and positions of the Universal Life Church World Headquarters, Inc. 'd. He also reiterates: "We do not ordain anyone and everyone, including dogs or cats like others." 'd. "We do not ordain atheists or
followers of satan like the ULC in Modesto, CA, or like the ULC Monastery Storehouse
in Seattle, WA." 'd.
Exhibit 8-19 is also from "The Official Universal Life Church World Headquarters" website, printed on June 13,2013. Doc. 95 at 88 (Ex. 8-19). In a post made on November 28, 2012, it states: "Universal Life Church -8e careful of those who ordain goats!" 'd. The picture below the text indicates the statement refers to the Universal Life Church Monastery. 'd. The post is identified as having been made by Michael Cauley. 'd. at 89. Exhibit 8-20 was printed on June 13, 2013, from "The Official Universal Life Church World Headquarters" website. Doc. 95 at 91 (Ex. 8-20). Under the "About Us" section of the website is a section on the "History and Origin" of the Universal Life Church World Headquarters. 'd. at 91-93. There, it is stated: Do not mistake the Universal Life Church World Headquarters, also known as the Universal Church of Antioch with any other non-Christian Universal Life Church. Universal Life Churches in Tucson, AZ., Seattle, WA. and/or Modesto, CA., are churches without a Traditional Doctrine of Faith. These churches spun from a church founded in 1959 by a radical, twice defrocked, excommunicated minister, Kirby Hensley known as Life Church. Hensley was a self admitted con man, kook who ran for President in 1964 on a platform to establish an ambassadorship to deal with extra terrestrials and who later attempted to make his church a kingdom, self proclaiming himself to be a king. Hensley passed away in 1999, many believe he would of [sic] been sent to prison if it wasn't for his timely death to avoid a prison term. The Internal Revenue Service has since stripped the Universal Life Church of Modesto, CA. tax exempt status. Furthermore, ministers of these other Universal Life Churches, monasteries or so called seminaries are not even look at as legitimate ministers for serving as wedding officiants in all 50 US states and/or counties. 'd. at 92-93.
Defendant Cauley provided a print-out of a support.google.com webpage, presumably as evidence to show his google account had been "disabled." Doc. 91-1 at 4 (Plaintiffs Ex. 8-1). A date is not visible to show when that page was printed. Nevertheless, the information provided therein states: "If you've been redirected to this page from the sign-in page it means that access to your Google Account has been disabled." Id. The page directs a user to contact Google to regain access to the account and advises that the account has not been deleted and the user's data is still intact. Id. 13 Defendant states that such evidence is "irrefutable proof ... showing clearly blogs and publications no longer to be in control of Defendant." Doc. 91 at 9.
Defendant Cauley's motion for summary judgment does not present evidence concerning whether or not he violated the Agreement. Defendant Cauley also has not pointed to or otherwise come forward with any evidence to refute the Plaintiffs' evidence or create a genuine dispute which must be tried. Rather, Defendant's motion, doc. 91, and both responses, docs. 102 and 104, essentially provide argument only. Defendant contends that in signing the Agreement, "both parties gave up the right to any future claim of defamation about anything said or written by one party about the other party prior to December 17, 2012." Doc. 91 at 6; see also p. 9. Plaintiffs dispute that argument, pointing out that the Agreement specifically provided the parties with approximately one month to "remove anything about one another or their respective churches from all web sites under their controL" Doc. 110 at 2.
13 A similar submission from myspace.com is not legible. Doc. 91-1 at 5. The vast majority of Defendant's evidence are discovery documents, and it is unexplained how or why such evidence is relevant. See doc. 91-1 at 6-50, 61-101.
The first sentence of the first paragraph of the Agreement requires "[t]he parties, their agents or employees" to "remove anything about one another or their respective churches from all web sites under their controL" The deadline for compliance was January 15, 2013. That is a clear expression that the parties were not giving "up the right to any future claim of defamation about anything said or written by one party about the other party prior to December 17th, 2012." Doc. 91 at 6. Rather, the Agreement provided approximately one month from signing (December 17,2012) to remove prior posts and published comments. The Agreement clearly required removal of old posts and prohibits new posts; it operated both retrospectively and prospectively. Defendant's argument on this point is rejected.
While the Agreement specifies that it does not apply to "postings by third parties on a minister's network, forums or the like," it requires action for one's own postings and prevents future communication whether published in "print media" or "verbal statements." Defendant Cauley has argued that he "removed all documentation known and that Defendant was in control thereof [sic]." Doc. 91 at 8. Defendant contends that it was mutually known "that Defendant was unable to remove all blogs and/or electronic documentation, due to password and account issues with Google, Inc., Myspace, Inc. and others." Id. Defendant Cauley attempted to show that his Google account was disabled. The failure of that evidence, however, is that it also showed how one could regain access to a disabled account by contacting Google. That was the point of certain evidence from Plaintiffs -that even if Defendant Cauley had, for example, forgotten a password to cites such as Google, access could, nevertheless, be regained "by following the requirements or protocol of the respective host of the account." See doc.
96 at 3 (Brant affidavit). The evidence shows that an account owner may contact a
respective website administrator and request account access by providing or otherwise
verifying some account information.
The undisputed evidence here is that Defendant Cauley made postings after the date of the Agreement. Defendant Cauley has not presented evidence which denies making any of those postings. Defendant also does not deny that the postings violate the Agreement. Moreover, none of the evidence presented shows postings on Myspace. Rather, Defendant Cauley made postings on the website RationalWiki in February 2013, after the Agreement was signed in December 2012. There are also many postings made on the websites "ulcnetwork.com" and "ulcministersnetwork.com" and ulcnetwork.blogspot.com prior to December 2012. The undisputed evidence is that Defendant Cauley owns and controls those websites.14 Thus, the undisputed evidence before this Court is that Defendant Cauley had control over the posts and published comments which have not been removed.
Defendant also argues that Plaintiffs did not comply with the Agreement because Plaintiffs "failed to provide an affidavit and a copy of the offending publication as required by [the] Mediation Settlement Agreement." Id. at 6. Defendant argues that it is not his responsibility to request the supporting documentation from Plaintiffs but, rather, it was Plaintiffs responsibility to provide such documentation. Id. at 7. Defendant that the Agreement required "the affidavit and offending publications" to "be attached to the
14 A common sense understanding of websites which are still active on the internet compels the conclusion that they still exist because payments continue to be made to keep the domain name active. One must, necessarily, have control over a website to keep it active.
complaint with a copy of the Mediation Settlement Agreement." Id. In response,
Plaintiffs state that Defendant Cauley was furnished with an affidavit from George
Freeman with some twenty publications attached constituting alleged violations of the
Mediation Settlement Agreement. Doc. 110 at 3. 15
Defendant also argues that he was entitled to receive written, "non-electronic notice to remove any information" prior to filing this case. Doc. 91 at 7. The Agreement specifies that if "third party comments" are made on a minister's network, the "party owning or controlling the publishing site shall agree to remove such comments upon receipt of a written (non-electronic) request to that effect." There is no evidence in this case that the comments at issue here were made by third parties. Rather, the undisputed evidence reveals that the offending comments have been made by Defendant Cauley. Accordingly, the requirement to provide notice and a written (nonelectronic) request to remove a comment is inapplicable.
Paragraph 6 of the Agreement provided that in the event of a violation, "the aggrieved party shall be entitled to an immediate injunction upon filing an appropriate affidavit containing as an attachment the offending publication along with a copy of this Settlement Agreement ...." There is no statement which requires an affidavit and copies of offending publications be attached to a complaint. Moreover, early in this litigation, Defendant Cauley was provided with an affidavit and copies of the offending publications. Doc. 13. Plaintiffs complied with the Agreement. The Agreement directs that an aggrieved party may either reopen the prior state court action or initiate a new
15 Plaintiffs reference is to the Declaration by George Freeman which was filed in this case (prior to transfer) as document 13.
"action for enforcement of [the] Settlement Agreement." Plaintiffs were permitted to
initiate this case and there were no specified preconditions to suit.
Because all arguments raised in Defendant's motion for summary judgment have been rejected, Defendant's motion, doc. 91, isDenied. Having reviewed the undisputed evidence, the Court finds that Plaintiffs are entitled to judgment as a matter of law. The evidence reveals twenty-three (23)16 separate violations of the Settlement Agreement:
(1) comments made on the www.ulcnetwork.com which still viewable on December 10, 2013; (2) comments made on the website "RationaIWiki" in February and September of 2013; (3) comments made to William Welch; (4) verbal communication with Cheri Lynn Messeck; (5) verbal communication with Terry Sikora; (6) blog posted on the Network on October 7,2010; (7) blog posted on the Network on November 20,2010; (8) blog posted on the Network on December 12, 2010; (9) blog posted on the Network on December 16, 2010; (10) blog posted on the Network on May 20, 2013; (11) comments published on "The Official Universal Life Church World Headquarters" website on March 30, 2011; (12) comments posted on the Universal Life Church network blog on April 8, 2011, concerning parking permits; (13) comments posted on the Universal Life Church network blog on April 8, 2011, titled "Behind Closed Doors;" (14) post made on the Universal Life Church network blog (Ex. B-11) on April 8, 2011; (15) post made on the Universal Life Church network blog on April 17, 2011; (16) post made on the Universal Life Church's Blog on April 17, 2011; (17) post made on the Universal Life Church
16 Plaintiffs argue there were twenty-eight separate violations. Doc. 98 at 11. However, the Court has not counted alleged comments made by persons who are unnamed or otherwise not identified. For example, the affidavit from D.J. Toellner reported communication "with between 10-15 individuals via phone or email" but does not identify any such person. See doc. 94.
network blog on May 4, 2011; (18) another post (Ex. B-15) made on the Universal Life Church network blog on May 4, 2011; (19) a third post (Ex. B-16) made on the Universal Life Church network blog on May 4,2011, regarding "In God We Trust Campaign;" (20) comments made in blog published on the Universal Life Church website on May 16, 2011; (21) statement made on "The Official Universal Life Church World Headquarters" website (Ex. B-18) on November 28,2012; (22) additional statement made on "The Official Universal Life Church World Headquarters" website (Ex. B-19) on November 28, 2012; and (23) Post made on "The Official Universal Life Church World Headquarters" website (Ex. B-20) which was printed on June 13, 2013.
The Agreement directs that an aggrieved party is entitled to "an immediate injunction" plus liquidated damages "of $10,000.00 and reasonable attorney's fees and costs for each violation." Based on the undisputed evidence of those violations, and pursuant to the terms of the Agreement, Plaintiffs are entitled to an immediate injunction requiring that the postings be removed and liquidated damages of $230,000.00, representing $10,000 per violation.
Accordingly, it is
1. Defendant Cauley's amended motion to dismiss, doc. 105, is DENIED.
2. Defendant Cauley's motion to allow introduction of evidence, doc. 113, is
1. Defendant Cauley's motion for summary judgment, doc. 91, is DENIED.
2. Plaintiffs' motion for summary judgment, doc. 98, is GRANTED.
1. Defendant Cauley must delete or otherwise remove all posts identified herein as violations (1-23) within thirty days of this Order.
2. The Clerk of Court shall enter Judgment in favor of Plaintiffs George Martin Freeman and Universal Life Church Monastery Storehouse, Inc., and Plaintiffs shall recover $230,000.00 in damages.
3. Any motion for attorney fees and costs must be filed in accordance with the Initial Scheduling Order, doc. 62, FED. R. CIV. P. 54(d), and served within thirty days of entry of judgment.
DONE AND ORDERED on November 21,2014.
SI Charles A. Stampelos CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE