Opposition Brief — Underwager v. Salter

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eme Court, U.S,

94 314 SEP 23 j99

No.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term 1994

RALPH UNDERWAGER, AND

HOLLIDA WAKEFIELD.

Petitioners,

Vv.

ANNA SALTER, PATRICIA TOTH,

MIMIM ROSE, NATIONAL CENTER

FOR PROSECUTION OF CHILD ABUSE,

AMERICAN PROSECUTORS RESEARCH INSTITUTE,

NATIONAL DISTRICT ATTORNEYS

ASSOCIATION, CHARLES VAUHGAN,

AND JAMES PETERS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT CHARLES R. VAUHGAN

IN OPPOSITION

September 23, 1994 Hamid R. Kashani

Suite 600

445 N. Pennsylvania Street

Indianapolis, IN 46204

317/ 632-1000

Counsel of Record

for CHARLES R. VAUHGAN

eee BEST AVAILABLE COPY

TABLE OF CONTENTS

REASON FOR DENYING THE WRIT

WITH RESPECT TO CHARLES R. VAUGHAN . 2

Petitioners have waived their right to challenge

the decisions of the district court and the )

court of appeals in dismissing Petitioners’

claims against Vaughan for want of personal |

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AUTHORITIES CITED

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) ...... 2

Underwager v. Salter, 22 F.3d 730, slip op.

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STATEMENT OF THE CASE

The relevant facts to the question addressed by this

brief in opposition are as follows:

1. Petitioners Underwager and Wakefield, both

psychologists, have written two books in which they

"conclude that most accusations of child sexual abuse

stem from memories implanted by faulty clinical

techniques rather than from sexual contact between

children and adults. The books have not been well

received in the medical and _ scientific press.”

Underwager v. Salter, 22 F.3d 730, slip op. at 1-2 (7th

Cir. 1994).

2. Munro and "60 Minutes" of Australia produced

a television program highly critical of Underwager and

Wakefield. In 1990, this program was broadcasted in

Australia. During his interview for this program,

Vaughan "made defamatory statements which became

part of the program." Vaughan, however, "had no

control over the broadcast of the program." District

Court's Memorandum and Order at 3 (Jul. 16, 1992)

(a-3).

3. Underwager and Wakefield sued Vaughan in the

United States District Court for the Western District of

Wisconsin.

4. "Vaughan is an Indiana attorney. He does not

solicit business in Wisconsin and has no clients,

employees, agents or property in the state." Id.

5. Pursuant to Fed. R. Civ. P. 12(b)(2), Vaughan

moved to dismiss for want of personal jurisdiction. The

district court agreed that "[t]he allegations and

undisputed facts before [it] established that the

[Wisconsin's] long arm statute does not provide for

personal jurisdiction over [Vaughan] and that, in any

event, due process would preclude the exercise of

jurisdiction.” Id. at 5 (a-5).

6. Underwager and Wakefield appealed. The Court

of Appeals affirmed. Vaughan did not do "anything in

Wisconsin, sent anything into Wisconsin, [nlor had any

way of knowing that a segment of an Australian TV

series would end up being shown at a seminar in

Wisconsin." Underwager, 22 F.3d at __, slip op. at 4.

REASON FOR DENYING THE WRIT

WITH RESPECT TO CHARLES R. VAUGHAN

Petitioners have waived their right to challenge

the decisions of the district court and the court

of appeals in dismissing Petitioners’ claims

against Vaughan for want of personal jurisdiction.

Pursuant to Sup. Ct. R. 14.1(a), "[ojnly questions set

forth in the petition, or fairly included therein, will be

considered by the Court." The Petition neither contains

an argument challenging, nor does it even mention, the

district court's dismissal of Vaughan and the court of

appeals' affirmance thereof. Therefore, Petitioners have

waived their right to litigate that question before this

Court. "Absent unusual circumstances, ..., we are

chary of considering issues not presented in petitions

for certiorari." Berkemer v. McCarty, 468 U.S. 420, 443

n.38 (1984).

CONCLUSION

For the foregoing reasons, Respondent Charles R.

Vaughan respectfully requests that the Court deny the

Petition for Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

September 23, 1994 Hamid R. Kashani

Suite 600

445 N. Pennsylvania Street

Indianapolis, IN 46204

317/ 632-1000

Counsel of Record

for Charles R. Vaughan

APPENDIX

The District Court's

Memorandum and Order (Jul. 16, 1992) ... a-l

‘The appendix to the Petition does not include all

the materials required by Sup. Ct. R. 14.1(k)(i).

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(REPRODUCED)

- IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

RALPH UNDERWAGER and

HOLLIDA WAKEFIELD,

Plaintiffs,

MEMORANDUM AND ORDER

92-C-229-S

ANNA SALTER, PATRICIA TOTH,

MIMI ROSE, NATIONAL CENTER FOR

PROSECUTION OF CHILD ABUSE,

AMERICAN PROSECUTORS RESEARCH

INSTITUTE, NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, MIKE

MUNRO, CHANNEL 9 AUSTRALIA,

"60 MINUTES" OF AUSTRALIA,

CHARLES VAUGHAN, and JAMES

PETERS, SR.

Defendants.

Plaintiffs Ralph Underwager and Hollida Wakefield

bring this action alleging defamation and conspiracy to

injure against the defendants based upon certain

publications and statements which allegedly impugned

their professional capabilities. The matter is presently

before the Court on the motion of defendants Mimi

Rose, Charles Vaughan and James Peters, Sr. to

dismiss for lack of personal jurisdiction. Also before

the Court is a motion by defendant National Center for

Prosecution of Child Abuse to dismiss pursuant to Rule

a-l

9 (a) asserting that it lacks capacity to be sued, and a

motion pursuant to Rule 12(b)(6) advanced by

defendants Patricia Toth, Mimi Rose, National Center

for Prosecution for Prosecution of Child Abuse,

American Prosecutors Research Institute, National

District Attorneys Association, and James Peters, Sr.

challenging the sufficiency of the claim based upon

conspiracy to injure under § 134.01, Wis. Stat.

Jurisdiction is based on 28 U.S.C. § 1332. The

following is a summary of the factual allegations of the

complaint, together with facts from the affidavits offered

in support of the 12(b)(2) motions.

FACTS

Plaintiff Ralph Underwager is a Minnesota resident

and a licensed psychologist. Since 1984 plaintiff

Underwager has engaged in consulting and evaluation

concerning civil and criminal litigation involving charges

of child sexual abuse. In 1988 he published a book

entitled "Accusations of Child Sexual Abuse” which was

disseminated throughout the United States.

The plaintiff Hollida Wakefield is a_ licensed

psychologist and the administrator of the Institute for

Psychological Therapies in Northfield, Minnesota.

The defendant American Prosecutors Research

Institute (APRIJ is a non-profit research organization

affiliated with the National District Attorneys

Association with offices of Virginia. The defendant

National Center for Prosecution of Child Abuse is an

unincorporated program of defendant APRI which has

no employees of its own, but is operated by employees

of defendant APRI.

Defendant Patricia Toth has been employed by APRI

since 1989 as the Director of defendant National

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Center. Defendants James Peters and Mimi Rose were

employed by defendant APRI as senior staff attorneys

for defendant National Center during the period

relevant to this complaint. Neither defendant Peters

nor defendant Rose has ever been to Wisconsin, nor did

either solicit or conduct business in the state.

Defendant Anna Salter is a psychologist and a

resident of New Hampshire. In 1990 defendants Peters,

Toth and Rose, acting as agents of defendant APRI,

caused defendant Salter to be hired to write a

monograph directed at challenging the plaintiffs’ book,

"Accusations of Child Sexual Abuse.” Defendant Salter

drafted the monograph which included defamatory

statements injuring the plaintiffs. Defendant Salter

provided the monograph to defendants Peters, Toth and

Rose for distribution through defendant National Center

for Prosecution of Child Abuse. Neither defendant

Peters nor defendant Rose distributed the monograph

into Wisconsin.

Defendant Charles Vaughan is an Indiana attorney.

He does not solicit business in Wisconsin and has no

clients, employees, agents or property in the state.

Prior to September 1990 the defendants Mike Munro

and "60 Minutes" of Australia produced a television

program which included defamatory statements about

the plaintiffs and was broadcast in Australia in

September 1990. Defendants Peters, Vaughan and

Salter were interviewed for the television program and

made defamatory statements which became part of the

program. Defendants Peters and Vaughan had no

control over the broadcast of the program.

Between October 29 and November 1, 1990,

defendant Toth played the videotape of the "60 Minutes"

program at the Midwest conference on Child Sexual

Abuse and Incest, at Madison, Wisconsin. In November

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1990 defendant Rose played the videotape at a

conference in Illinois, and in 1991 defendant Rose

played the videotape at a conference in Arizona.

MEMORANDUM

The Court addressed defendants' procedural and

jurisdictional challenges prior to addressing the

substantive motions under Rule 12(b)(6), Federal Rules

of Civil Procedure.

Rule 9(a) Motion of National Center

The defendant National Center for Prosecution of

Child Abuse moves to dismiss the complaint against it

on the ground that it is not a party subject to suit

within the meaning of Rule 17, Federal Rules of Civil

Procedure. The complaint alleges that National Center

is a "program of the defendant American Prosecutors

Research Institute." Defendants establish by affidavit

of Toth that the National Center is operated by

employees of APRI and has no employees of its own.

Furthermore, the program is funded by a grant received

by APRI which is used to operate the National Center.

Under these circumstances it is clear that dismissal

of the National Center as a defendant is appropriate.

The facts establish that the Center is merely an arm of

defendant APRI, which is a legal entity subject to suit,

and that the activities of the National Center are, in

fact, activities of employees of APRI. Where the actual

legal entity is named as a defendant, it is appropriate to

dismiss a nominal entity such as the National Center

for Prosecution of Child Abuse. Testa v. Janssen, 482

F.Supp. 1195, 1200 (W.D. Pa. 1980).

P 1 Sesriestiction Bint

a-4

Defendants Rose, Peters and Vaughan move to

dismiss the complaint against them pursuant to Rule

12(b)(2) asserting the absence of personal jurisdiction.

Personal jurisdiction in a diversity action is determined

by reference to the Wisconsin long arm statute. If

personal jurisdiction is appropriate under the long arm

Statute, the Court then considers whether jurisdiction

is consistent with constitutional limits. Madison

, 752 F.2d 1193,

1195, (1985). The allegations and undisputed facts

before the Court established that the long arm statute

does not provide for personal jurisdiction over the

moving defendants and that, in any event, due process

would preclude the exercise of jurisdiction.

The provisions of the long arm statute relied upon

by the plaintiffs in support of personal jurisdiction is §

801.05(3), Wis. Stat., which provides:

A court of this state having jurisdiction of

the subject matter has jurisdiction over a

person served in an action pursuant to

s.801.11 under any of the following

circumstances:

= . “

(3) LOCAL ACT OR OMISSION. In any

action claiming injury to person or

property within or without this state

arising out of an act or omissions within

this state by the defendant.

It is undisputed that defendants Peters and Rose

have never set foot in the State of Wisconsin and that

defendant Vaughan owns no property and solicits no

business in the state. It is further undisputed that

they do not transact business in Wisconsin, nor have

they directed any publications or broadcasts into

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Wisconsin. Recognizing these facts plaintiffs assert two

theories for expanding the meaning of "an act or

omission of Wisconsin.” First, plaintiffs allege that the

videotape interviews of the defendants Vaughan and

Peters constitute an act within the State of Wisconsin,

"by electronic means." Plaintiffs offer no support for

this novel theory. Under this theory and recorded

statement would constitute an act within Wisconsin if

the statement into Wisconsin, and, as will later be seen,

such an interpretation of the Wisconsin long arm

statute would be violative of due process rights.

The second theory advanced by the plaintiffs as to

defendants Rose and Peters is that they were a part of

a conspiracy and, therefore, the action of defendant

Toth in playing the videotape in Wisconsin can be

attributed to them. This theory is equally unpersuasive

in light of the fact that defendants Toth, Rose and

Peters were all employees of the same organization,

defendant APRI, who were acting within the scope of

their employment when distributing information and

conducting seminars. Under such circumstances, the

acts of the defendants are acts of their employer

organization and cannot support a claim of conspiracy.

, 606 F.Supp. 1491,

1502 (W.D. Wis. 1985). A business organization and

its employees cannot conspire with one another in

furtherance of the business organization's purpose. Id.

For purposes of determining personal jurisdiction, the

defendants’ contacts with Wisconsin are not to be

judged according to their employer's activities, but each

defendant's contacts with the State must be assessed

individually. Calder _y. Jones, 465 U.S. 783, 790

(1984). Since none of the moving defendants

participated in the publication of the alleged defamatory

statements in Wisconsin, those actions cannot be

attributed to them for purposes of personal jurisdiction.

a-6

Assuming the Wisconsin long are statute could be

stretched to encompass defendants Vaughan, Peters

and Rose, the due process clause would certainly

preclude it. The most analogous Supreme Court

decision is Calder vy. Jones, where the Supreme Court

permitted the exercise of personal jurisdiction by a

California court over a reporter and an editor of the

National Enquirer who had made personal trips to

California and caused to be published an article

concerning actions that occurred in California which

impacted foreseeable on the plaintiff who resided in

California. Under these circumstances the Supreme

Court held that the due process clause of the

Fourteenth Amendment would not be violated by

asserting personal jurisdiction over the defendants.

The facts of this case starkly contrast with those of

Calder. None of the defendants’ actions concerning the

statements occurred in Wisconsin, the defendants did

not reside in Wisconsin, and the publications were not

directed to Wisconsin. None of the bases for asserting

personal jurisdiction in Calder are present in this case.

The assertion of personal jurisdiction in Wisconsin over

defendants who have never been in Wisconsin and who

did not direct any publication into the State in a suit

involving injury to a Minnesota plaintiff would

unquestionably offend traditional notions of fair play

and substantial justice. Id. at 788.

The motions of defendants Peters, Rose and

Vaughan to dismiss for lack of personal jurisdiction

must be granted.

Motion to Dismiss Claim Under § 134.01. Wis. Stat.

The defendants American Prosecutors Research

Institute and patricia Toth move to dismiss the claim

under Wisconsin law, § 134.01, Wis. Stat., based upon

a conspiracy to injure asserting that neither malice nor

conspiracy has sufficiently been alleged. The Court

finds that this motion can be granted as to defendant

Toth, but not as to the defendant APRI.

Wisconsin Statute § 134.01 makes it unlawful for

any two or more person to "combine, associate, agree,

mutually undertake, or consort together for the

purpose of willfully or maliciously injuring another in

his reputation, trade, business or profession by an

means whatever. . ."

As it concerns the defendant Toth, the allegations of

the complaint fail to state a claim because they fail to

allege a conspiracy in which she is involved. The only

allegations of the complaint which allege concerted

activities by separate defendants are the allegations

that defendants Toth, Peters and Rose, acting as agents

of APRI, caused defendant Salter to draft a monograph

which they later received and distributed. The

complaint does not allege, nor can a _ reasonable

inference be made, that the actions of Toth concerning

the monograph were not in furtherance of her

employer's purpose or outside the scope of her

employment. The limited actions concerning the

monograph taken by Toth in furtherance of her

employment with APRI cannot form the basis of a claim

of conspiracy against her. Elbe, 606 F.Supp. at 1502.

The allegations are sufficient, however, to support a

claim that defendants Salter and APRI agreed or

mutually undertook to create and distribute the

monograph.

Additionally, the allegations of the complaint are

sufficient to allege that such actions were taken

"willfully or maliciously" to damage the reputation of

plaintiffs. Defendants APRI's argument to the contrary

relies upon a sleight of hand application of Rule 9(b),

Federal Rules of Civil Procedure. Rule 9(b) permits

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allegations of malice to be averred generally as in

paragraph 21. Furthermore, the fact that there was

apparently no pecuniary gain accruing to the defendant

APRI as a result of the publication's statements against

the plaintiffs makes it reasonable to infer that such

actions were taken for the willful purpose of injuring

plaintiffs’ reputations.

Defendant APRI's assertion that the "circumstances"

must be pled in “detail” is clearly a distortion of Rule

9(b), which imposes such a requirement on allegations

of fraud or mistake, but expressly does not impose

such a requirement on allegations of malice or intent.

For obvious reason, the requirement of particularity

applicable to fraud cannot be imposed upon allegations

of the defendants’ state of mind which generally cannot

be established by direct evidence but must be inferred

from surrounding circumstances. Malice and

conspiracy have been sufficiently alleged against

defendant APRI and its motion to dismiss must be

denied.

ORDER

IT IS ORDERED that the motion of defendant

National Center for Prosecution of Child Abuse to

dismiss pursuant to Rule 9(a) based upon lace of

capacity to be sued is GRANTED.

IT IS FURTHER ORDERED that the motions of

defendants Mimi Rose, James Peters, Sr. and Charles

Vaughan to dismiss pursuant to Rule 12 (b)(2) for lack

of personal jurisdiction are GRANTED.

IT IS FURTHER ORDERED that defendant patricia

Toth's motion to dismiss the claim based upon Wis.

Stat. § 134.01 is GRANTED.

IT IS FURTHER ORDERED that defendant's APRI's

motion to dismiss the claim based upon Wis. Stat. §

134.01 is Denied.

Entered this 16th day of July, 1992.

BY THE COURT:

/s/

JOHN C. SHABAZ

District Court

The first page of this memorandum and order contains

the following information:

Copy of this document has been mailed to

the following: Attys. Sutton, Moore,

Zaleski, Arntsen, Keller, and Vaughan this

16th day of July, 1992.

/s/ 7 ve

By: y

Secretary to Judge John C. Shabaz

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