[CT 8044]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 89-3505
Non-Argument Calendar
District Court 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
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.
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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.
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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).
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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.
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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.
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