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[CT 8044]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT


No. 89-3505
Non-Argument Calendar


District Cout Docket No. 81-17-CIV-T-17

 

NANCY McLEAN, and
JOHN McLEAN, her son,

Plaintiffs-Appellants,

versus

THE CHURCH OF SCIENTOLOGY OF CALIFORNIA,
MARY SUE HUBBARD, L. RON HUBBARD,
JOSEPH PETER LISA, MILTON WOLFE and
MERELL VANNIER

Defendants-Appellees.


Appeal from the United States District Court
for the Middle District of Florida


September 17, 1991

Before TJOFLAT, Chief Judge, JOHNSON and EDMONDSON, Circuit Judges.

PER CURIAM:

Appellant McLean appeals the district court's order permanently

enjoining her from disclosing any information about her lawsuit against

[CT 8045]

Church of Scientology (Church) and the resulting Settlement

Agreement entered into between McLean and the Church. We affirm 1.

 

I

 

McLean and her son sued the Church in 1981. In August 1986

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



1 The outcome of this decision was delayed pending final resolution
of the issues in Wakefield v. Church of Scientology,__F.2d__(11th
Cir. 1991) (finding moot the motion filed by local newspapers seeking
access to the Settlement Agreement entered into among the Church and
various plaintiffs). Because the Wakefield decision has no impact on
the merits of this case, we need discuss it no further.

2

[CT 8046]

that McLean was violating the terms of the Settlement Agreement and

that she should be enjoind from further violations. 2

The district court referred the matter to a magistrate judge. The

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
underlying facts of this appeal will be cursory.

3

 

[CT 8047]

II

McLean claims that the permanent injunction against her further

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
Circuit Court of Appeals decided prior to October 1, 1981. Bonner v.
City of Pritchard
, 661 F.2d 1206 (11th Cir.1981).

4

[CT 8048]

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.

At the preliminary injunction hearing, McLean testified among other

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.

5

[CT 8049]

McLean also argues on appeal that the district court erred in

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.

III

For the foregoing reasons, we AFFIRM the district court's order of

preliminary and permanent injunctive relief to the Church.

 

6

 

   

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