Civil RICO Lawsuit – My Response to the Court
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
I. RELIEF REQUESTED
Defendant John Sutton Turner requests an order dismissing all of Plaintiffs’ claims against him for failure to effectuate service of process on him within the 90-day period prescribed under FRCP 4(m). Plaintiffs filed their complaint on February 29, 2016, and to date, have failed to serve Mr. Turner, nor have they made any diligent efforts to do so. Their claims against Mr. Turner should be dismissed.
II. STATEMENT OF FACTS
Mars Hill Church was founded in 1996 (See Declaration of John Sutton Turner, hereinafter “Turner Decl.,” at ¶1). Defendant Sutton Turner was hired by Mars Hill Church in April 2011 as its General Manager. (Turner Decl. at ¶4). Mr. Turner was promoted in November 2011 to Executive Elder and Executive Pastor. (Id.) Mr. Turner resigned from Mars Hill Church in September 2014. (Id.) During that time he reported to over a dozen board members and led Mars Hill Church along with over fifty church elders. (Id. at ¶5). Although there were numerous other board members and elders at the Church since 1996 and Mr. Turner only worked there for three and a half years, only Mr. Turner was named in the lawsuit alongside Mark Driscoll. (Id. at ¶¶4-5; Dkt. #1).
Over two years ago, a group of former members of Mars Hill Church hired Plaintiff counsel, Mr. Fahling, to send a letter demanding that documents be preserved for purposes of a civil RICO lawsuit. (Turner Decl. at ¶6). Following that letter, the group of possible plaintiffs in the potential litigation changed, but the attorney pursuing the case remained the same, Brian Fahling. (Id.) Mr. Fahling, on behalf of a group of plaintiffs, sent many demand letters to Mars Hill Church and to general counsel of Mars Hill Church requesting mediation and threatening lawsuits. (Id. at ¶7). These actions by the Plaintiffs cost the church a significant amount of money in legal fees. (Id.). These letters portrayed a desire for resolution and claimed that many other church members, beyond those named as plaintiffs, would step forward and join the lawsuit, if necessary. (Id. at ¶8).
In the months leading up to their filing suit, the Plaintiffs and Mr. Fahling tried to recruit former members of Mars Hill Church to join the litigation with a purpose that the “threat of the lawsuit would bring all the players to the table.” (Id. at ¶9). They told these potential plaintiffs that the lawsuit would cost up to $250,000. (Id. at ¶10). A “GoFundMe.com” account was established on April 13, 2015, to raise money for the lawsuit, which was managed by Plaintiff Brian Jacobsen. (Id. at ¶11). However, prior to filing the lawsuit, the Plaintiffs had only raised $33,925 for the potential lawsuit. (Id. at ¶12). Even though the Plaintiffs had not raised the amount of money they said they needed, they filed the civil lawsuit on February 29, 2016. (Dkt. #1). Since filing, they have only raised an additional $4,725, and the “GoFundMe” accounts show that the Plaintiffs owe money to their attorney. (Turner Decl. at ¶13). Even though there were outstanding legal fees, the Plaintiffs prepared a 42-page lawsuit making false accusations, posting it on blogs, and conducting TV and news interviews for the purpose of publicizing their lawsuit. (Id.).
The civil RICO lawsuit against Mr. Turner alleges that the Plaintiffs (Brian and Connie Jacobsen, and Ryan and Arica Kildea) should be reimbursed what they gave to Mars Hill ($92,500) and receive treble (triple) damages under their RICO claim. (Dkt. #1). Jacobsens were a part of Mars Hill from 2008 to 2014 and Kildeas from 2001 to 2014. The suit was filed over 90 days ago, Mr. Turner has never been served with the lawsuit, and the time period to serve Mr. Turner has now passed according to Washington law. (Dkt. #1; Declaration of Aaron D. Bigby, hereinafter “Bigby Decl.,” at ¶2; Turner Decl. at ¶2). Plaintiffs have formally accused Mr. Turner of civil RICO claims; there is no evidence to support such claims. In fact, there is substantial evidence to refute it. Mr. Turner has not committed fraud of any kind and has not benefited financially from the actions as claimed by the Plaintiffs. (See Turner Decl.)
In June 2015, Mr. Turner communicated with a former member of the church who was one of the original clients that instigated the prior demand letters to the Church. (Id. at ¶14). The communication with this former member was via email and text. (Id.). Mr. Turner communicated his desire to meet at the first available opportunity. (Id.). Since that time, Mr. Turner has continued to communicate to this former member via phone explaining his willingness to meet with others. Mr. Turner has met with many former Mars Hill members since leaving the Church and has written many blogs about his willingness to meet with others. (Id.). Prior to the lawsuit, the Plaintiffs never reached out directly to Mr. Turner to meet since he left Mars Hill Church, they were only communicating with Mars Hill attorneys that did not represent Mr. Turner. (Id. at ¶15). After the lawsuit was filed in February 2016, Mr. Turner attempted several times to meet with the Plaintiffs in this lawsuit, but they never responded to his email requests, in spite of claiming that they only wanted the opportunity to meet with former Church leadership regarding their concerns. (Id. at ¶16). Mr. Turner offered to fly to Seattle on March 29th to meet face-to-face with Plaintiffs and offered to have a former elder of Mars Hill attend as a mediator. (Id.) After the lawsuit was filed, an email and letter were sent by Mr. Turner’s attorney to Mr. Fahling offering to accept service and save the Plaintiffs the costs of out of state personal service. (Bigby Decl. at ¶¶2-3 and pg. 3-5). Mr. Fahling never responded to either the letter or email. (Id. at ¶4). Mr. Turner has never been served with this lawsuit. (Turner Decl. at ¶2). The lawsuit contains numerous false statements that the Plaintiffs chose to make public in spite of knowing that the claims were false. (Id. at ¶17). The post filing efforts to publicize their lawsuit followed by an absolute failure to serve the lawsuit, or meet with Mr. Turner when he reached out, can lead to only one conclusion. The Plaintiffs and their counsel sought to harass, disparage, and defame Mr. Turner through the public act of filing a lawsuit. (Id.) The filing of a lawsuit with these allegations and no intent to serve was an abuse of the legal process. (Id.)
The Plaintiffs overlooked many facts and knowingly made false statements in their court filing which have defamed Mr. Turner. (Id. at ¶18). Notably the lawsuit was not signed under oath by the Plaintiffs, unlike the facts presented here. (Dkt. #1). Those false statements from the complaint are set forth below:
- Plaintiffs’ lawsuit intentionally overlooks the fact that Mars Hill Church published financial statements which were audited by independent CPA firms Clark Nuber PS and Capin Crouse LLP. (Turner Decl. at ¶19). These audits took place annually for many years, including the years of Mr. Turner’s employment from 2011-2014 (Id.). All restricted fund accounting, including Campus Fund and Mars Hill Global, was reviewed by Clark Nuber and CapinCrouse LLP in these audits. (Id.)
- The Plaintiffs misled the Court and the public that Mr. Turner, in his legal position of President of Resurgence Publishing, profited from the sales of Real Marriage. (Id. at ¶20). Plaintiffs did so by choosing to ignore the public information that Resurgence Publishing was formed in May 2012 after Real Marriage was published by On Mission, LLC in January 2012. (Id.). Resurgence Publishing was 100% owned by the non-profit of Mars Hill Church. (). Mr. Turner was President of Resurgence Publishing (beginning in May 2012), in conjunction with his role as Executive Elder of Mars Hill Church (beginning in November 2011) and that both roles commenced after Results Source was engaged (October 2011). (Id.). Mr. Turner did not profit from the sales of Real Marriage. (Id.). The only money Mr. Turner received from Resurgence Publishing was as an author, when he earned $2,000 for the publication of his own book. (Id.). In addition, Mr. Turner was not on the Board of Directors of Mars Hill Church when the Result Source decision was made in the summer of 2011. (Id.).
- Plaintiffs ignore the investigations by the Evangelical Council for Financial Accountability (ECFA) and the audits by Clark Nuber, PS which found that the actions taken with respect to Mars Hill Global were appropriate. (Id. at ¶21). Plaintiffs fail to mention that Mars Hill sent out over 3765 emails and approximately 6000 letters to 100% of the people who gave to Mars Hill Global asking if they felt misinformed. (Id.). Donors were given the option to have their previous gifts designated at their discretion to Ethiopia. (Id.). Less than 40 families responded, and Mars Hill Church sent approximately an additional $40,000 to Ethiopia after some families requested that their donations to Mars Hill Global be used solely for Ethiopian church planting. (Id.). Despite the correct information being available, the Plaintiffs chose to make false allegations against Mr. Turner in their civil lawsuit which they apparently never intended to serve.
- In the lawsuit, Plaintiffs state that Mr. Turner financially benefited from the sales of the Real Marriage (Dkt. #1). This is completely false. (Turner Decl. at ¶22). As stated previously, Mr. Turner’s role of President of Resurgence Publishing began after the publishing of Real Marriage. (Id. at ¶21). Resurgence Publishing was not financially or contractually linked to the publishing of Real Marriage. (Id. at ¶22). Furthermore, Mr. Turner was not involved in the legal entity (On Mission, LLC) that did financially benefit from Real Marriage. (Id.).
- Plaintiffs state that Campus Funds were redirected to other uses without their consent. (Id. at ¶23). This again is completely false. (Id.). In fact, once Mars Hill Church stopped accepting Campus Funds, the existing unspent donations to Campus Funds were used by each designated campus until they were depleted. (Id.). The Campus Funds were also part of the annual financial audit conducted by independent CPA firms Clark Nuber, PS and CapinCrouse LLP. (Id.).
The Plaintiffs’ defamatory accusations through this filed lawsuit, along with the accompanying publicity, which they instigated, has caused irreparable harm to Mr. Turner’s business career and his future earning potential. (Id. at ¶24). This damage can be conservatively calculated at $5 million based on Mr. Turner’s pre-Mars Hill Church business earnings. (Id.). As stated previously, if the intended purpose of this lawsuit was to bring “players to the table,” Mr. Turner has demonstrated his willingness to meet with the Plaintiffs on numerous occasions. (Id.). This lawsuit has damaged Mr. Turner’s professional career by dragging his name “through the mud” in a very public forum. (Id.). The clear intent by the Plaintiffs was not to move forward with proving their case on the merits, but rather misuse the legal process to disparage Mr. Turner’s character. (Id.).
Plaintiffs filed their complaint with this Court on February 29, 2016. (Dkt. #1). The Court record does not reflect the filing of any proof of service for Mr. Turner. (Bigby Decl., p. 6). As of the date of this motion, Mr. Turner has not been served with a copy of the summons and complaint. (Turner Decl. at ¶2). As of this date counsel for Mr. Turner has not received a response to the offer to accept service and to file a waiver of service. (Bigby Decl. at ¶4).
III. EVIDENCE RELIED UPON
Defendant relies on the Court file in this proceeding, as well as the Declarations of John Sutton Turner and Aaron D. Bigby filed concurrently with this motion.
IV. LEGAL ARGUMENT
A. Pursuant to FRCP 4(m), the Case Must Be Dismissed.
Service of process of the complaint and summons is one prerequisite to the court’s assertion of personal jurisdiction over an individual defendant. (See Fed. R. Civ. P. 4(e) and (k)). The Plaintiffs are required to file proof of service with the court clerk. (Fed. R. Civ. P. 4(l)). Under the local rules for the Western District of Washington, the Plaintiffs are responsible for serving the complaint and summons on the Defendants. (LCR 4(c)).
Fed. R. Civ. P. 4(m) requires that a defendant be served within 90 days after the complaint is filed. If a defendant is not served within the required time, “the court – on motion or on its own after notice to the plaintiff – must dismiss the action against that defendant or order that service be made within a specified time.” (Fed. R. Civ. P. 4(m) (emphasis added)).
Here, more than 90 days has elapsed since Plaintiffs filed their complaint. Pursuant to Fed. R. Civ. P. 4(m), Plaintiffs’ claims against Mr. Turner should be dismissed. Typically this motion results in a dismissal without prejudice, but as explained below, this case should be dismissed with prejudice.
B. Sanctions Pursuant to the Court’s Inherent Power Are Appropriate Here Where a Case Was Filed in “Bad Faith” Because it Was Filed for the Sole Purpose of Gaining Notoriety and Publicity and to Harass the Defendant Rather Than Serving the Lawsuit and Pursuing it on the Merits.
Plaintiffs’ choice to file a lawsuit with such severe allegations of fraud and conspiracy, knowing that they never intended to pursue the lawsuit, is an abuse of the legal process. Furthermore, an attorney who supports this conduct should also be sanctioned for filing this lawsuit with the intention of never serving it. Defendant Turner requests that the parties and their counsel be sanctioned by dismissing the case with prejudice and by assessing financial sanctions in the amount of $4240.00.
“Bad faith” conduct can be sanctioned under the Court’s inherent powers even if it is also sanctionable under other rules. This conduct is not sanctionable under 28 USC §1927 because this statute does not apply to initial pleadings. (Matter of Yagman, 796 F.2d 1165, 1187 (9th Cir.)). Although this conduct could be sanctionable under FRCP 11, in this case, FRCP 11 does not fully remedy Mr. Turner. “But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.” (Chambers v. NASCO, Inc., 501 US 32, 46-48, 111 S.Ct. 2123, 2136 (1991)). In this case, if Mr. Turner were required to provide notice under the “Safe Harbor Rule,” then the Plaintiffs and their counsel could simply voluntarily dismiss the lawsuit. The problem with this outcome is that Mr. Turner would not have been able to file documents, including his declaration, explaining his response to the false allegations of RICO violations and conspiracy contained in the Complaint. Mr. Turner wanted “his day in court” and an ability to respond to the lies set forth by the Plaintiffs. The “Safe Harbor Rule” as a part of Rule 11 is set up for the offending party to cure a defect and essentially fix a mistake. It works well in situations where there is not bad faith or intentional conduct. Rule 11 would not work here because Plaintiffs could dismiss the case without giving Mr. Turner an opportunity to respond to the allegations or an opportunity to seek sanctions for “bad faith” conduct.
In this case, to avail himself of the Court’s inherent power, Mr. Turner must establish that the Plaintiffs and/or their lawyer “acted in bad faith, vexatiously, wantonly or for oppressive reasons.” (Chambers v. NASCO, Inc. 501 US 32, 45-46, 11 S.Ct. 2123, 2133 (1991)). By filing a complaint alleging RICO violations and then intentionally publicizing the fact that this lawsuit was filed, the Plaintiffs with the help of their lawyer, intentionally chose to try to characterize Mr. Turner as a criminal. While this may be a normal perception with filing a civil RICO case, the problem here is that the Plaintiffs and their counsel never intended to serve the lawsuit and filed it only to harass and disparage Defendant Turner without any intention of moving forward with proving it on the merits of the case. This conduct and the motive behind it establishes that the Plaintiffs acted in bad faith, vexatiously, wantonly, and for oppressive reasons. This is an abuse of the legal process by both the attorney and the Plaintiffs. The intent of never serving this lawsuit is demonstrated through the fact that not only was the lawsuit never served, but a letter and an email from Mr. Turner’s counsel to Plaintiffs’ counsel offered to accept service. (Bigby Decl. ¶4.) No response was ever received. (Id.). By never serving the lawsuit and by ignoring inquiries from counsel about accepting service, Plaintiffs have demonstrated their bad faith in filing this lawsuit with a singular purpose of dragging Mr. Turner’s name through the mud and making allegations that they never intended to prove.
Plaintiffs may argue that the claims themselves were brought in good faith or that the claims are not frivolous. However, by analogy, sanctions under 28 USC §1927 which has a standard of recklessness or bad faith does not require the Court find the lawsuit to have been frivolous in order to award sanctions under 28 USC §1927. (In re Keegan Management Co., Secur. Litig. (9th Cir. 1996) 78 F3d 431, 436). “A finding of bad faith does not require that the legal and factual basis for the action prove totally frivolous; where a litigant is substantially motivated by vindictiveness, obduracy, or mala fides the assertion of a colorable claim will not bar the assessment of attorney’s fees.” (Mark Industries, Ltd. v. Sea Captain’s Choice, Inc. (9th Cir. 1995) 50 F.3d 730, 732, quoting Lipsig v. National Student Marketing Corp., (DC Cir. 1980) 663 F2d 178, 181)). Here, the Court need not find that the facts are frivolous or false, merely that the act of filing the lawsuit without ever serving it to gain publicity and notoriety is an act of bad faith which should be sanctioned. The sole purpose of filing the lawsuit was to disparage the character of Mr. Turner. The Plaintiffs and their counsel acted in bad faith and the case should be dismissed with prejudice as a result of this bad faith. In addition attorney fees and sanctions in the amount of $4240.00 should be assessed. (Bigby Decl.).
Defendant John Sutton Turner respectfully asks the Court to enter the proposed order dismissing Plaintiffs’ claims against him with prejudice pursuant to FRCP 4(m) and the Court’s inherent power to sanction.
DATED this 14th day of June, 2016
Aaron D. Bigby, WSBA #29271
Northcraft, Bigby & Biggs, P.C.
819 Virginia Street, Suite C-2
Seattle, WA 98101
Telephone: (206) 623-0229
Facsimile: (206) 623-0234
E-mail: [email protected]
Attorney for Defendant, John Sutton Turner
CERTIFICATE OF SERVICE
I hereby certify that on 14th day of June, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel of record:
Mr. Brian Fahling
Law Office of Brian Fahling
6221 116th Ave. NE
Kirkland, WA 98033
Attorney for Plaintiffs
DATED this @ day of June, 2016, in Seattle, Washington.
Michelle A. Tomczak
— Sutton Turner