IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
District Cout Docket No. 81-17-CIV-T-17
NANCY McLEAN, and
THE CHURCH OF SCIENTOLOGY OF CALIFORNIA,
Appeal from the United States District Court
September 17, 1991
Before TJOFLAT, Chief Judge, JOHNSON and EDMONDSON, Circuit Judges.
enjoining her from disclosing any information about her lawsuit against
Church of Scientology (Church) and the resulting Settlement
Agreement entered into between McLean and the Church. We affirm 1.
McLean and the Church entered into a court-supervised Settlement
Agreement requiring the Church to pay an undisclosed sum to McLean
and requiring McLean to turn over to the Church any documents relating
to the litigation and prohibiting McLean from, among other things,
discussing with anyone, other than immediate family members, the
circumstances surrounding the litigation or discussing any factual
evidence that might have supported the litigation. In March 1988 the
Church moved for a preliminary injunction and a permanent injunction, claiming
that McLean was violating the terms of the Settlement Agreement and
that she should be enjoind from further violations. 2
magistrate judge admitted into evidence affidavits submitted by the
Church, indicating that McLean had violated the terms of the settlement
agreement. The magistrate judge also heard testimony from McLean,
who was given a full opportunity to rebut the matters conained in the
affidavit. After considering the matter, the magistrate judge issued a
Report and Recommendation concluding that McLean violated the
Agreement. The district court accepted the Report and Recommendation
and entered against McLean a preliminary and a permanent injunction
that enjoined her from further disclosing the substance of her complaint
and claim against the Church, alleged wrongs committed by the Church
and the substance of documents that were returned to the Church under
the Settlement Agreement. This appeal followed.
2 Because the record in this case is under seal, our outline of the
disclosures should be reversed becaus the district court failed to give
her proper notice that it consolidates the preliminary and permanent
injunction hearings. We disagree. Although "It is generally inappropriate
for a federal court at the preliminary injunction stage to give a final
judgment on the merits," University of Texas v. Camenisch, 101 S. Ct.
1830, 19834 (1981) (citations omitted), Rule 65 (a) (2) of the Federal Rules
of Civil Procedure allows consolidation of the preliminary injunction
hearing and the hearing on the meris of the pemanent injuncion. Fed.
R. Civ. P. 65 (a) (2). Before preliminary and permanent injunction
hearings can be consolidated, though, parties must have notice of
consolidation. id.: Eli Lilly & Co. v. Generix Drug Sales, Inc. 460 F.2d
1095, 1106 (5th Cir. 1972). 3 The district court's failure, however, to give
notice is not a sufficient basis for appellate reversal; [McLean] must
3 This court adopted as precedent all decisions of the former Fifth
also show hat the procedure followed resulted in prejudice, i.e., that
the lack of notice caused [McLean] to withhold certain proof which would
show [her] entitlement to relief on the merits." id.; cf. Garcia v Smith,
680 F. 2d 1327, 138 (11th Cir. 1982). After reviewing the record, we
conclude that McLean has not been prejudiced.
things tha she had reacquired certain documents turned over to the
Church and that she was using these documents to "counsel" Church
members. She testified further that she had discussed certain aspects
of her suit against the Church with persons who were not members of
her immediate family. If we view this testimony in the light most
favorable to McLean and if we assume that any evidence she might have
presented at a later hearing on the merits would have fully corroborated
her testimony, we would still find that she violated the terms of the
Settlement Agreement. So, becasue McLean in effect conceded that
she was not prejudiced by being denied notice of the consolidation of
her preliminary and permanent injunction hearings.
holding that reacquisition and disclosure of reacquired documentary
evidence violated the Settlement Agreement. We find this argument to
be completely withoutmerit. If the district court had held that
reacquisition alone violated the Settlement Agreement, we might be
influenced. The district court, however, held that reacquisition and then
disclosure violated the Settlement Agreement. We agree.
preliminary and permanent injunctive relief to the Church.