Case 8:22-cv-00986-TPB-JSS Document 128 Filed 10/06/22 Page 1 of 13 PageID 1672

UNITED STATES DISTRICT COURT

GAWAIN BAXTER, LAURA BAXTER

Plaintiffs,

v. Case No.: 8:22-cv-00986-TPB-JSS

DAVID MISCAVIGE; CHURCH OF

Defendants.
_______________________________________/

DEFENDANT CHURCH OF SCIENTOLOGY INTERNATIONAL, INC.’S

Defendant Church of Scientology International, Inc. (“CSI”), by and

through its undersigned counsel, hereby moves to strike portions of the

September 13, 2022 Declaration of Gawain Baxter, attached as Exhibit 2 to

Plaintiffs’ Opposition to CSI’s Motion to Compel Arbitration, Dismiss for Lack

of Personal Jurisdiction, or Dismiss Plaintiffs’ First Amended Complaint

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Pursuant to Rule 12(b)(6) (ECF No. 110-2) (“Plaintiffs’ CSI Opposition”), 1 and

the substantively identical September 13, 2022 Declaration of Gawain Baxter,

attached as Exhibit 2 to Plaintiffs’ Opposition to Flag Ship Service

Organization’s Motion to Compel Arbitration or Dismiss Plaintiffs’ First

Amended Complaint Pursuant to Rule 12(b)(6) (ECF No. 111-2)

(“Plaintiffs’ FSSO Opposition”), and in support thereof states as follows:

1. As evidence in support of Plaintiffs’ CSI Opposition, Plaintiff

submitted a signed declaration from Plaintiff Gawain Baxter (ECF

No. 110-2).

2. As evidence in support of Plaintiffs’ FSSO Opposition, Plaintiff

submitted a substantively identical declaration from Plaintiff Gawain

Baxter (ECF No. 111-2). This Motion refers to the identical

declarations (ECF Nos. 110-2 & 111-2) as the “G. Baxter Declaration.”

3. Portions of the G. Baxter Declaration should be stricken from the

record because it is replete with inadmissible and unreliable evidence.

4. Specifically, the G. Baxter Declaration contains impermissible

hearsay statements, statements not based on personal knowledge,

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Plaintiffs mischaracterize CSI’s Motion, which is styled as a “Motion to Dismiss or Compel
Arbitration”. (ECF No. 89.) CSI has not waived, and does not waive by filing this Motion, its
challenge to whether the Court may exercise personal jurisdiction over CSI in the above-
captioned matter.

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vague, speculative, and conclusory statements, improper opinion

testimony, and irrelevant matters.

CSI hereby seeks to have stricken from the record the portions of the G.

Baxter Declaration set forth in Exhibit 1.

MEMORANDUM OF LAW

Mr. Baxter’s declaration overwhelmingly consists of irrelevant,

conclusory material that should be stricken. The majority of the G. Baxter

Declaration is cited to support Mr. Baxter’s claims that the arbitration

agreements are unenforceable because they were signed under duress or void

due to fraud in the execution. (See ECF No. 111 (Plaintiffs’ FSSO Opposition)

at 5-8 (alleged duress) & 9-10 (fraud in the execution).) Yet, the statements are

vague, conclusory, and irrelevant because they cannot support these defenses

as a matter of law.

Plaintiffs’ FSSO Opposition claims that the “harsh conditions” of Mr.

Baxter’s service in the Sea Org and fear of punishment demonstrate duress.

(ECF No. 111 at 6-8.) Yet, the alleged, general conditions of Mr. Baxter’s life

cannot establish duress. Instead, the circumstances under which the

Agreements were executed is the crucial inquiry to determine if duress is

proven. Balling v. Finch, 203 Cal.App.2d 413, 419 (Cal. Ct. App. 1962) (the

alleged unlawful pressure must be specifically in connection with the execution

of the contract at issue); see also Krantz v. BT Visual Images, 89 Cal. App. 4th

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164, 176 (Cal. Ct. App. 2001) (analyzing whether a plaintiff “signed the

contract under duress” and listing impermissible threats associated with

procuring assent to contract); Hayward Union High Sch. Dist. v. Madrid, 234

Cal.App.2d 100, 124 (Cal. Ct. App. 1965) (the question for determining duress

is “was the person so acted upon by threats of the person claiming the benefit

of the contract, for the purpose of obtaining such contract, as to be bereft of the

quality of mind essential to the making of a contract, and was the contract

thereby obtained?”). Paragraphs 2-12, 20-23, and 31, pertaining to Mr. Baxter’s

alleged, general experiences in the Scientology religion should be stricken as

irrelevant.

As to the Paragraphs purporting to pertain to the execution of the

Agreements during his time in the Sea Org and his departure therefrom

(Weber Decl. Exs. A, C, and E), the G. Baxter Declaration lacks foundation and

is vague, speculative, and conclusory. Mr. Baxter does not recall the execution

of Exhibits A, C, and E to the Weber Declaration. (G. Baxter Decl. ¶¶ 15, 19,

30.) As to Weber Declaration Exhibits A and E, Mr. Baxter states that he “now

believe[s]” the events described pertain to those Agreements, but he provides

absolutely no basis for that belief. (G. Baxter Decl. ¶¶ 19, 30.) This

inadequate and conclusory allegation cannot be credited. As to Exhibit C to the

Weber Declaration, Mr. Baxter claims only that he believes the events

described pertain to that Agreement based on the date of execution – in 2001.

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(Id. ¶¶ 14-15.) Mr. Baxter states that in 2001 in connection with the execution

of a document he “was told that the document was an agreement saying that

[he] was never an executive in IASA.” (Id.) On March 19, 2001, Mr. Baxter

executed an entirely separate document, an affidavit, that states “I have never

been a director or corporate officer of, nor have I ever occupied any senior

management or executive position in any Church of Scientology, IASA, the IAS

or any related entities.” (Exhibit 2 at ¶ 7 (emphasis added).) Weber Declaration

Exhibit C contains no such provision or language. (Weber Decl. Ex. C.) Thus,

Mr. Baxter appears to be recalling events regarding the execution of the

affidavit on March 19, 2001 (attached as Exhibit 2 hereto), and not the

execution of Weber Declaration Exhibit C on July 29, 2001. As such, Mr. Baxter

provides no testimony regarding the circumstances of his execution of Exhibit

C to the Weber Declaration. Mr. Baxter lacks the foundation to testify

regarding the execution of all of the Agreements, and Paragraphs 14-15,2 16-

19, and 24-30 should be stricken. (See Fed. R. Evid. 602.)

Even assuming the events Mr. Baxter describes did pertain to the

Agreements at issue, he states only that he “knew” he would be punished for

refusing to sign the Agreements, (G. Baxter Decl. ¶¶ 14, 16, 18, 26), or feared

punishment for refusing to sign, (id. ¶¶ 25). Mr. Baxter provides no factual

2Paragraphs 14-15, which pertain to the execution of Exhibit 2 hereto, should be stricken
on the additional ground that Exhibit 2 is not at issue or relevant here.

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basis for this purported knowledge or belief. Similarly, with regard to the

Departure Agreement, (Weber Decl. Ex. E), Mr. Baxter claims that he “felt” or

“understood” that he “would have been prevented from leaving the ship and

forced to undergo many more hours of interrogations” if he refused to sign, (G.

Baxter Decl. ¶¶ 28, 25.) Yet, he provides no basis for this subjective belief. He

does not identify any statement or conduct by any Defendant that forms the

basis of or substantiates such claims. Indeed, as to Weber Declaration Exhibits

A and C, Mr. Baxter states that he signed without question. He does not

identify any individual who was present or attribute any statement or conduct

to such a person. (G. Baxter Decl. ¶¶ 14, 16-18.) With regard to the Departure

Agreement (Weber Decl. Ex. E), Mr. Weber claims that Krister Neilsen was

present and “gave a very rough explanation of the documents.” (Id. ¶ 26.) It

does not claim that Neilsen threatened the Baxters or identified any

consequence for their refusal to sign the document. (See id.) Mr. Baxter’s

subjective feelings, beliefs, and understandings, are divorced from any specific

circumstance of conduct. As such, they are factually unsupported, vague, and

conclusory. They are also irrelevant because, as a matter of law, they are

insufficient to establish duress. See Martinez-Gonzalez v. Elkhorn Packing Co.

LLC, 25 F.4th 613, 624 (9th Cir. 2022) (subjective belief that signing

agreements was mandatory is insufficient to establish duress); Robison v. City

of Manteca, 78 Cal.App.4th 452, 457-58 (Cal. Ct. App. 2000) (unsupported

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allegation that plaintiff “was coerced” into signing without review of the

provisions insufficient to void contract); Yeng Sue Chow v. Levi Strauss & Co.,

49 Cal. App. 3d 315, 327 (Cal. Ct. App. 1975) (“In this situation appellant’s

unsupported contention that the stock purchase option was the result of some

sort of coercion or economic duress by which the Company stood to gain (‘heads,

the company wins – tails, the employee loses’) must be categorically rejected.”).

Furthermore, his claim that he was not provided sufficient time to read the

documents prior to execution, (see G. Baxter Decl. ¶¶ 14, 17, 27), is likewise

irrelevant to his duress defense, see Martinez-Gonzalez, 25 F.4th at 624, 628

(duress and undue influence were not established where farmworkers from

Mexico were told to form lines, directed to the signature line of the employment

agreements, not given sufficient time to read the agreements, instructed to

hurry and sign, did not read the documents or consult a lawyer, not given

copies, and the agreements were not explained to them); see also Robison, 78

Cal.App.4th at 457-58. Paragraphs 14-15, 16-19, and 24-30 should be stricken

as factually unsupported, vague, conclusory, and irrelevant.

The Paragraphs of the G. Baxter Declaration purporting to describe his

execution of a Scientology course enrollment application and general release

(Kato Declaration Ex. A) in 2015 (after his departure from the Sea Org and the

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Freewinds) are also irrelevant because they do not establish any duress. 3 (See

G. Baxter Decl. ¶¶ 34-36.) Mr. Baxter states that he signed Kato Declaration

Exhibit A to stop phone calls suggesting he more actively participate in

Scientology and to prevent Scientologists that he depended on for his “economic

lifeline” from cutting him off. (Id. ¶¶ 32-36.) Ms. Baxter’s declaration states

these Scientologists were the Baxters’ family members. (ECF No. 110-1 at

¶ 38.) A desire to stop solicitation phone calls and a fear of familial

disappointment for failure to engage in the family’s common religion do not

amount to duress. Plaintiffs concede as much, never citing to these paragraphs

in support of their duress argument – and tellingly, failing entirely to address

Exhibit A to the Kato Declaration in opposition to the motion to compel

arbitration. (See generally ECF No. 111 (Pls.’ Opp. to FSSO MTC) at 5-8

(alleged duress) & 9-10 (fraud in the execution).) Paragraphs 32-36 should be

stricken because they are irrelevant, vague, and conclusory.

The statements in the G. Baxter Declaration also do not support his

claim of fraud in the execution – and therefore, are irrelevant. To establish

3 Defendants do not contend that the arbitration provisions at Exhibit A apply to Plaintiffs’
claims. Defendants cited the 2015 agreement to show that even after the Baxters left the
Sea Org they freely signed agreements to submit their disputes with Defendants to
religious arbitration, thus undercutting their current assertions that they would never
agree to such terms if they were not under the “control” of the Sea Org. “A contract cannot
be rescinded when it appears that consent would have been given . . . notwithstanding the
duress.” Martinez-Gonzalez v. Elkhorn Packing Co. LLC, 25 F.4th 613, 621 (9th Cir. 2022)
(modifications omitted) (quoting In re Cheryl E., 161 Cal.App.3d 587, 600 (1984)).

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fraud in the execution, among other things, Mr. Baxter must prove some

statement or deception by Defendants that misled him as to the basic character

of the documents. Guardia v. Citimortgage, No. 2:21-cv-00553-SVW-PVC, 2021

WL 3811028, at *3 (C.D. Cal. May 24, 2021); Oce N. Am., Inc. v. Caputo, 416

F.Supp.2d 1321, 1328 (S.D. Fla. 2006). Mr. Baxter identifies only two

statements made to him regarding the execution of the Agreements. First, with

regard to Weber Declaration Exhibit C, Mr. Baxter “believe[s]” he was told that

Exhibit C “was an agreement saying that [he] was never an executive in IASA.”

(G. Baxter Decl. ¶¶ 14, 15.) As discussed above, this testimony relates to the

execution of a different document, an affidavit attached here as Exhibit 2, and

therefore has no relevance to enforcement of Weber Declaration Exhibit C.

Second, with regard to Exhibit E, the Departure Agreement, Mr. Baxter states

that he “remember[s] [Krister Neilsen] explaining that we were agreeing to

keep things confidential and that we were signing of our own accord.” (G.

Baxter Decl. ¶ 26.) Mr. Baxter does not – and cannot – contend that anything

about Mr. Neilsen’s alleged statements is misleading. (See id.) The statement

is an accurate presentation of content in the Departure Agreement. (See Weber

Decl. Ex. E at ¶ 1 (confidentiality provisions generally), ¶ 2 (confidentiality

provisions regarding PC folders), ¶ 8 (voluntariness of agreement).) The G.

Baxter Declaration identifies no specific statements or conduct regarding the

content or nature of the documents that are misleading, and therefore, none of

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the statements establish fraud in the execution. See Guardia, 2021 WL

3811028, at *3 (requiring specificity for fraud in the execution claim); Altier v.

Fannie Mae, No. 1:13-cv-164-MW-GRJ, 2013 WL 6388521, at *6-*7 (N.D. Fla.

Nov. 8, 2013) (same); Price v. Lakeview Loan Serv., LLC, No: 2:19-cv-655-FtM-

29MRM, 2021 WL 1610097, at *6 (M.D. Fla. Apr. 26, 2021) (same). Paragraphs

14-15, 16-19, and 24-30 do not establish – and are thus irrelevant to – the fraud

in the execution defense, and should be stricken. Once again, the Opposition

does not cite to – and does not argue – that Exhibit A to the Kato Declaration

was procured by fraud. Therefore, Paragraphs 32-36 are irrelevant to this issue

as well, and should be stricken.

Mr. Baxter’s claims regarding the alleged conditions of his service in the

Sea Org and his fear of “punishment” or any familial consequences of his

failure to adhere to the Scientology religion are irrelevant for an additional,

independent reason. They constitute religiously-motivated, protected conduct

and therefore, cannot serve as the basis for any defense to enforcement. Under

the First Amendment, “courts may not scrutinize many aspects of the minister-

church relationship.” Headley v. Church of Scientology Intern., 687 F.3d 1173,

1181 (9th Cir. 2012). “[T]he vast majority of the conduct on which [Baxter’s]

claims rest—stringent lifestyle constraints, assignment to manual labor, strict

discipline, the requirement to leave the ministry only by routing out, efforts to

retain ministers, and the practice of declaring some departed members

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‘suppressive persons’—is religiously motivated or otherwise protected.” Id.

Because the alleged circumstances constituting Mr. Baxter’s duress are

religiously-motivated and protected, they cannot form the basis of a claim for

duress or any other defense to enforcement. See id. Therefore, these portions

of the G. Baxter Declaration are irrelevant for this reason as well. See Fed. R.

Evid. 401 (requiring evidence to be of consequence in determining the action).

Paragraphs 14-15, 16-19, and 24-30 should be stricken on this ground.

Separately, multiple paragraphs of the G. Baxter Declaration must be

stricken because they are improper opinion testimony regarding the doctrines,

practices, and beliefs of the Scientology religion. Mr. Baxter is not qualified to

opine on such matters. Mr. Baxter is a non-believer who has left the faith. (G.

Baxter Decl. ¶ 37.) He offers no foundation for his opinion testimony regarding

the religion and its practices. For instance, he is not a religious scholar and

does not claim to have held any doctrinal position when he was a member of

the Sea Org. Fed. R. of Evid. 701, 702. Paragraphs 3-8 and 22-23 should be

stricken on this ground.

In addition, the doctrine, practices, and beliefs of the Scientology religion

are non-justiciable. Therefore, any testimony purporting to establish them

goes to issues that cannot be decided, and is therefore, irrelevant. “[T]he

Religion Clauses protect the right of churches and other religious institutions

to decide matters “‘of faith and doctrine”’ without government intrusion.” Our

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Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S.Ct. 2049, 2060 (2020)

(citations omitted). The act of determining the tenets of a faith is never a proper

exercise for a secular court. Such an exercise “requires the civil court to

determine matters at the very core of a religion – the interpretation of

particular church doctrines and the importance of those doctrines to the

religion. Plainly, the First Amendment forbids civil courts from playing such a

role.” Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l

Presbyterian Church, 393 U.S. 440, 450 (1969); see also Thomas v. Rev. Bd. of

Indiana Emp. Sec. Div., 450 U.S. 707, 716 (1981) (“Courts are not arbiters of

scriptural interpretation.”) Paragraphs 3-8 and 22-23 should be stricken on

this ground.

Finally, as set forth in the specific objections in Exhibit 1, multiple

paragraphs of Mr. Baxter’s declaration should be stricken because they consist

of vague statements, conclusory assertions, improper opinions, and

inadmissible hearsay. For the foregoing reasons and based on the specific

objections asserted in Exhibit 1, CSI respectfully requests the Court strike the

noted portions of Paragraphs 2-37 of the G. Baxter Declaration.

Local Rule 3.01(g) Certification

The undersigned counsel hereby certifies that the undersigned conferred

with Plaintiffs’ counsel, who does not agree to the relief sought in this motion.

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Counsel further certifies that this motion is brought in good faith and not for

any improper purpose.

Dated: October 6, 2022 Respectfully submitted,

WINSTON & STRAWN LLP

s/ William H. Forman
William H. Forman, pro hac vice
[email protected]
Winston & Strawn LLP
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 615-1992
Facsimile: (213) 615-1750

s/ Gustavo J. Membiela
Gustavo J. Membiela (Fla. Bar No. 513555)
[email protected]
Winston & Strawn LLP
200 S. Biscayne Boulevard, Suite 2400
Miami, FL 33131
Telephone: (305) 910-0717
Facsimile: (305) 910-0505

Counsel for Defendant

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