vonRosenberg v. Lawrence et al

Filing 140

ORDER AND OPINION The Court GRANTS IN PART AND DENIES IN PART Bishops vonRosenberg and Adams's motion to amend their complaint, to join parties, and to add claims (Dkt. No. 124 ); The Episcopal Church of the United State s' motion to amend its complaint-in-intervention, to join parties, and to add claims (Dkt. No. 125 ); and The Episcopal Church in South Carolina's motion to intervene (Dkt. No. 126 ). The Court GRANTS Bishop Lawrence's motion to amend his answer to The Episcopal Church of the United States' complaint-in-intervention (Dkt. No. 134 ). AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 4/16/2018.(sshe, )

IN THE UNITED ST ATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

The Right Reverend Charles G.
vonRosenberg, et al. ,
Plaintiffs,
V.

The Right Reverend Mark J. Lawrence,
et al. ,
Defendants.

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Civil Action No. 2:13-587-RMG

ORDER AND OPINION

This matter is before the Court on Bishops vonRosenberg and Adams ' s motion to amend
their complaint, to join parties, and to add claims; The Episcopal Church of the United States'
("TEC") motion to amend its complaint-in-intervention, to join parties, and to add claims; and The
Episcopal Church in South Carolina's ("ECSC") motion to intervene; and Bishop Lawrence' s
motion to amend his answer to TEC's complaint-in-intervention. For the reasons set forth below,
the Court grants in part and denies in part Bishops vonRosenberg and Adams ' s motion to amend,
TEC ' s motion to amend, and ECSC's motion to intervene. The Court grants Bishop Lawrence's
motion to amend his answer to TEC's complaint-in-intervention.

I.

Background

Bishop vonRosenberg alleges that The Episcopal Church removed Bishop Lawrence as the
Bishop of the Diocese of South Carolina and installed Bishop vonRosenberg in his place. Bishop
Lawrence denies that he was removed, instead contending the Diocese of South Carolina
(hereinafter, the " Lawrence Diocese") withdrew from TEC. On January 4, 2013 , the Lawrence
Diocese and certain associated churches and parishes sued TEC in the Dorchester County Court
of Common Pleas, arguing the Lawrence Diocese had dissociated from TEC and seeking

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"resolution of their real and personal property rights. " The property at issue included the Lawrence
Diocese' s service marks, which the state-court plaintiffs alleged TEC had used in violation of
South Carolina law. TEC filed an answer and counterclaims, including claims of trademark
infringement and dilution under the Lanham Act.
On March 5, 2013 , Bishop vonRosenberg filed this federal action, alleging Bishop
Lawrence ' s continued assertions that he remains the Bishop of the Lawrence Diocese was false
advertising in violation of the Lanham Act. In response, Bishop Lawrence asked this Court to
abstain in favor of the state proceeding. In August 2013, Judge C. Weston Houck granted Bishop
Lawrence ' s motion to abstain and dismissed the case.
Meanwhile, on February 3, 2015, the state court issued a final order in favor of the
Lawrence Diocese. (Dkt. No. 86-6.) It held that the Lawrence Diocese had validly dissociated
from The Episcopal Church and therefore owned the property at issue in the litigation, including
the service marks. The state court permanently enjoined TEC and its agents from using the
Lawrence Diocese' s marks. The Lawrence Diocese appealed to the South Carolina Court of
Appeals on March 24, 2015. 1
Shortly thereafter, on March 31 , 2015 , the Fourth Circuit vacated Judge Houck' s dismissal
and remanded for determination of whether "exceptional" circumstances under Colorado River

Water Conservation District v. United States, 424 U.S . 800 (1976), justified abstention. On
remand, Judge Houck again abstained, staying the federal proceeding until the conclusion of the
state action. Bishop vonRosenberg again appealed and on February 21, 2017, the Fourth Circuit
again vacated Judge Houck's order.

The mandate issued on March 15, 2017, and Bishop

vonRosenberg shortly thereafter filed an amended complaint, rewording certain allegations and

1

The appeal was transferred to the South Carolina Supreme Court under Rule 204(b), SCACR.

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adding his successor, Bishop Adams, as a Plaintiff. After Judge Houck passed away in July 2017,
this case was assigned to the undersigned United States District Judge.
On August 2, 2017, the South Carolina Supreme Court held TEC owned most of the
property at issue, reversing the Court of Common Pleas. Protestant Episcopal Church in the

Diocese of SC v. Episcopal Church, 806 S.E.2d 82 (S.C. 2017), reh 'g denied (Nov. 17, 2017),
petition for cert. filed, No. 17-1136 (Feb. 9, 2018). The court also held that twenty-eight parishes
associated with the Diocese held real and personal property in trust for the benefit of TEC. On the
issue of service marks the court was fragmented, with Acting Justice Pleicones and Justice Hearn
finding the trial court erred in holding the Lawrence Diocese's state-registered trademarks prevail
over TEC ' s federal trademarks, Chief Justice Beatty expressing no opinion because the issue
should be decided in this pending federal proceeding, and Acting Justice Toal and Justice Kittredge
finding that the Lawrence Diocese's service marks are validly registered under state law but that
determination of the effect of federal trademark law on the marks should be decided in this pending
federal proceeding. A petition for rehearing was denied and the remittitur issued. A petition for a
writ of certiorari is pending before the United States Supreme Court.
On August 15, 2017, TEC moved for leave to intervene of right or, alternatively, for
permissive intervention. The Court granted the motion and TEC's complaint-in-intervention was
filed on September 1, 2017 (Dkt. No. 83.) Now before the Court are
•

TEC's motion to amend its complaint to join as parties (1) the Lawrence
Diocese, incorporated as The Protestant Episcopal Church in the Diocese of
South Carolina, (2) the Trustees of The Protestant Episcopal Church in the
Diocese of South Carolina (the "Trustees Corporation"), a nonprofit religious
corporation allegedly under Bishop Lawrence's control, (3) a large number of

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parishes associated with the Lawrence Diocese. TEC also moves to add claims
under South Carolina trust law against the twenty-eight parishes associated with
the Lawrence Diocese holding real and personal property in trust for the benefit
ofTEC.
•

Bishops vonRosenberg and Adams ' s motion to amend their complaint to add
claims under the Lanham Act for false advertising and trademark infringement
against ( 1) Bishop Lawrence, (2) the Lawrence Diocese, (3) the Trustees
Corporation, (3) a large number of parishes associated with the Diocese led by
Bishop Lawrence, and (4) John Doe defendants. They also move to add claims
under South Carolina trust law against the Trustees Corporation and the twentyeight parishes associated with the Lawrence Diocese holding real and personal
property in trust for the benefit of TEC.

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ECSC's motion to intervene and to file a complaint in intervention, asserting
Lanham Act and state law false advertising and trademark infringement claims
against against (I) Bishop Lawrence, (2) the Lawrence Diocese, (3) the Trustees
Corporation, (3) a large number of parishes associated with the Lawrence
Diocese, and (4) John Doe defendants. ECSC also moves to assert claims under
South Carolina trust law against the Trustees Corporation and the twenty-eight
parishes associated with the Lawrence Diocese holding real and personal
property in trust for the benefit of TEC

•

Bishop Lawrence ' s motion to amend his answer to TEC's complaint-in-intervention to
add counterclaims. Plaintiffs consent to the amendment.

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II.

Legal Standard

A.

Amendment of Pleadings
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, after the time has passed to

amend a pleading as a matter of course, "a party may amend its pleading only with the opposing
party's written consent or the court's leave. The court should freely give leave when justice so
requires." Rule 15(a) is a "liberal rule [that] gives effect to the federal policy in favor ofresolving
cases on their merits instead of disposing of them on technicalities." Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en bane). However, "[m]otions to amend are committed to the discretion
of the trial court." Keller v. Prince George's County, 923 F.2d 30, 33 (4th Cir. 1991). Thus, "[a]
district court may deny a motion to amend when the amendment would be prejudicial to the
opposing party, the moving party has acted in bad faith, or the amendment would be futile." Equal

Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602-03 (4th Cir. 2010).
B.

Intervention
Rule 24 of the Federal Rules of Civil Procedure provides for two types of intervention.

"Intervention of Right" requires the court to permit anyone to intervene upon timely motion who
"claims an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the movant's ability
to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P.
24(a)(2). Thus, to intervene as ofright, a movant must show: (1) timely application; (2) an interest
in the subject matter of the underlying action; (3) that a denial of the motion for leave to intervene
would impair or impede the movant' s ability to protect its interest; and (4) that the movant's
interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins.

Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). "A party moving for intervention under 24(a)
bears the burden of establishing a right to intervene, and must do so by satisfying all four

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requirements." US ex rel. MPA Constr., Inc. v. XL Specialty Ins. Co., 349 F. Supp. 2d 934, 937
(D. Md. 2004). Failure to satisfy even one of these requirements is sufficient to warrant denial of
a motion for leave to intervene as a matter ofright. See NAACP v. New York, 413 U.S . 345, 369
(1973).
"Permissive Intervention," on the other hand, allows the court, in its discretion, to permit
anyone to intervene upon timely motion who "has a claim or defense that shares with the main
action a common question of law or fact." Fed. R. Civ. P. 24(b)(l)(B). In exercising discretion
under Rule 24(b), "the court shall consider whether the intervention will unduly delay or prejudice
the application of the rights of the original parties." Fed. R. Civ. P. 24(b)(3).

III.

Discussion
Plaintiffs' various motions to add claims and to add parties are most efficiently addressed

in the following order: (1) whether Plaintiffs should be permitted to assert false advertising and
trademark infringement claims against the Lawrence Diocese, the associated parishes, and the
Trustees Corporation, (2) whether Plaintiffs should be permitted to add trust law claims against 28
associated parishes, and (3) whether the ECSC should be permitted to intervene.
Before addressing those issues, the Court dispenses with a threshold issue. Defendants
argue this Court should not consider any issue raised in their petition to the United States Supreme
Court for a writ of certiorari in the state litigation. They also ask this Court to stay this matter until
the Supreme Court disposes of their petition. (Dkt. No 138 at 22- 24.)
That argument is without merit. The judgment of the South Carolina Supreme Court is a
final judgment and is the law of that case. The losing parties ' decision to petition for a writ of
certiorari does not place the South Carolina Supreme Court's decision into abeyance. Nor does it
provide any reason for this Court to abstain from hearing any issue properly before this Court. The

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Supreme Court knows how to stay a lower court decision pending review when it wishes to do so.
See, e.g., Trump v. Int 'l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

A.

Whether Plaintiffs should be permitted to assert false advertising and trademark
infringement claims against the Lawrence Diocese, parishes associated with the
Lawrence Diocese, ahd the Trustees Corporation
Plaintiffs allege the Lawrence Diocese, 54 parishes associated with the Lawrence Diocese ,

and the Trustees Corporation are infringing TEC's trademarks and engaging in false advertising
in a manner similar to and in concert with Bishop Lawrence and the John Doe Defendants. (See
Dkt. No. 125-2.) Plaintiffs seek injunctive and declaratory relief. (Id.) If the Lawrence Diocese,
the parishes, and the Trustees Corporation are not joined in this action, any injunctive or
declaratory relief granted against Bishop Lawrence and the John Doe Defendants would not apply
to the associated parishes or the Trustees Corporation. Thus, according to Plaintiffs, the Court
cannot accord complete relief to Plaintiffs without joinder of the additional allegedly infringing
parties, which makes their joinder mandatory under Rule 19 of the Federal Rules of Civil
Procedure.
Defendants can respond to that straightforward and persuasive argument only by arguing
joinder of the Lawrence Diocese, the parishes, and the Trustees Corporation is not needed for
Plaintiffs to obtain complete relief. Defendants argue this is so because the present complaints
only allege infringement by Bishop Lawrence, not the diocese he leads or the constituent parishes
of that diocese. That argument might be sound if the additional Defendants were unassociated
with Bishop Lawrence, but it is obviously without merit where the additional Defendants are,
allegedly, constituent organizations acting under his leadership and jointly with him. The Court
therefore grants Plaintiffs' motions insofar as they seek to assert trademark infringement and false
advertising claims against the Lawrence Diocese, parishes associated with the Lawrence Diocese,
and the Trustees Corporation.
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B.

Whether Plaintiffs should be permitted to add their proposed trust law claims
against 28 associated parishes
The South Carolina Supreme Court has held that 28 parishes associated with the Diocese

hold their real and personal property in trust for the benefit of TEC. In Count Three of TEC ' s
proposed second amended complaint-in-intervention and Count Four of Bishops vonRosenberg
and Adams ' s proposed third amended complaint and ECSC's proposed complaint-in-intervention,
Plaintiffs invoke this Court' s supplemental jurisdiction to assert a claim under South Carolina
Code § 62-7-706, which permits a trust beneficiary to seek a court order removing a trustee.
Plaintiffs allege the parishes have breached their fiduciary duties by allowing property held in trust
for TEC to be used "in connection with a denomination" other than TEC. (Dkt. No. 125-2 ~ 45.)
Plaintiffs pray the Court to "Declare that the 28 Trustee Parishes have committed a serious breach
of the trust they owe to The Episcopal Church and have demonstrated their unfitness,
unwillingness, and persistent failure to administer the trust effectively" and to "Order the 28
Trustee Parishes to remove from their vestries any persons who cannot demonstrate to this Court's
satisfaction that they are capable of and willing to carry out their fiduciary obligations to The
Episcopal Church, and replace them with persons who can make such demonstration to the Court's
satisfaction." (Dkt. No . 125-2.)
The United States Supreme Court has held that a statute must "not foster 'an excessive
government entanglement with religion. "' Lemon v. Kurtzman, 403 U.S. 602, 613 (1971). Lemon
concerned state aid to parochial schools, not an injunction issued under a facially neutral law-oftrusts statute, but that distinction does not mean this Court is free to use trust law entangle itself
with religion like a fly in a spider web. Entry of a judicial order telling 28 congregations whom
they may or may not elect to their respective parish vestries would foster excessive judicial
entanglement with religion. The parish rector presides over the vestry. Would he be required to

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demonstrate his willingness "to carry out [his] fiduciary obligations to The Episcopal Church"i.e., demonstrate his loyalty to a particular Protestant denomination-to the Court's satisfaction?
If he were not sufficiently loyal to TEC, would Plaintiffs' have the Court remove him from his

church? Other vestry members are elected by the congregation. What would Plaintiffs have the
Court do were the congregation to refuse to elect any person sufficiently loyal to TEC?
Of course, there are other ways for TEC to enforce its property rights. For example, TEC
could take legal possession of the parish property held in trust for its benefit, rather than asking a
federal court to supervise the local congregation' s use the property. The Court therefore denies
Plaintiffs' motions to the extent they seek injunctive relief regarding the composition of parish
vestries.
Plaintiffs' request for declaratory relief regarding the vestries is similarly problematic. In
principle, declaring whether a vestry holding real property in trust met its fiduciary obligation need
not involve any judicial entanglement with religion.

For example, a vestry might hold a

commercial property in trust for the benefit of a national church. If the vestry members engaged
in self-dealing with the trust res, that would be a clear breach of fiduciary duty. But here, the
alleged breach is allowing the trust res to be used "in connection with a denomination" other than
TEC. This Court cannot involve itself in determining exactly what religious services are or are
not allowable in various parish churches across the Lowcountry. Churches often permit other
denominations to use their facilities. See, e.g., Emma Sapong, Many congregations, one roof
Aging churches rent space to growing ones, Minn. Public Radio (July 1, 2016), available at
https://www.mpmews.org/story/2016/07/0 l/church-rentals-immigrant-congregations.

Indeed,

TEC does not really argue that allowing parish properties to be used "in connection with a
denomination" other than TEC is a breach of fiduciary duty. Rather, TEC argues that allowing the

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Lawrence Diocese to use parish facilities is a breach of fiduciary duty because the Lawrence
Diocese contests TEC ' s claim to be the "true" Episcopal Church. Essentially, TEC asks the Court
to declare parish vestrymen unfit for lay ministry because they allow schismatics to use church
property. The Court cannot do that.
Moreover, even if concerns about judicial entanglement with religion were placed aside,
the Court would decline to exercise supplemental jurisdiction over Plaintiffs' proposed trust
claims. District courts may decline to exercise supplemental jurisdiction over a state-law claim if
the claim would substantially predominate over the claims over which the district court has original
jurisdiction.

28 U.S.C. § 1367(c)(2).

Here, the proposed trust claims would, if allowed,

substantially predominate the trademark claims in this federal trademark case. The Court would
be called upon to make individual determinations as to whether a dozen or so vestrymen in 28
parishes (over 300 persons) made property management decisions that "demonstrate to this Court's
satisfaction that they are capable of and willing to carry out their fiduciary obligations to The
Episcopal Church." The Court understands that a breakaway group using a TEC property for its
services could be seen as giving the public a false impression of association with TEC. But asking
the Court to decide who may give permission to use parish property for what purposes would
submerge the trademark issues under real property issues not before this Court. Again, the better
solution to the problem might be for TEC to take possession of the properties, rather than asking
a federal court to assist the management of the properties. And the better forum for enforcement
of the South Carolina Supreme Court' s decision concerning TEC's real property rights is the court

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that received the remittitur, the Dorchester County Court of Common Pleas, where these issues
have been litigated for over five years. 2
The Court therefore denies Plaintiffs' motions insofar as they seek to assert trust law claims
against parishes associated with the Lawrence Diocese.

C.

ECSC's motion to intervene
Defendants object to any Plaintiffs joining additional Defendants or adding trust law claims

against any Defendant, but they do not articulate an objection to ECSC being a plaintiff regarding
what false advertising and trademark claims may be permitted against those Defendants that may
be joined. For the reasons set forth above, the Court therefore grants in part and denies in part
ECSC's motion to intervene. The motion is granted insofar as ECSC may file a complaint-inintervention asserting false advertising and trademark claims against any Defendant, including
associated parishes and the Trustees Corporation, and denied insofar as ECSC seeks to assert trust
claims against individual parishes.

D.

Bishop Lawrence's motion to amend his answer
Bishop Lawrence's motion to amend his answer (Dkt. No. 134) is timely and Plaintiffs

consent (Dkt. No. 137). The Court therefore grants the motion to amend.

2

The Court notes in passing that Defendants' arguments in opposition to Plaintiffs' motions
regarding trust claims, other than the argument that the state trust law claims would predominate
over the federal trademark claims, are without merit. The alleged breach of fiduciary dutyallowing the Lawrence Diocese to use property held in trust for TEC-plainly arises from a
nucleus of operative fact common to the trademark infringement claims. The "Betterment Act"
action currently pending in state court is an in personam action, not an in rem or quasi in rem

action over the trust res that would deprive this Court of jurisdiction. As the Fourth Circuit has
repeatedly held, there is no basis for abstention in this case. Defendants' petition for review of the
final judgment of the South Carolina Supreme Court certainly does not create a basis for
abstention.

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IV.

Conclusion
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

Bishops vonRosenberg and Adams ' s motion to amend their complaint, to join parties, and to add
claims (Dkt. No. 124); The Episcopal Church of the United States' motion to amend its complaintin-intervention, to join parties, and to add claims (Dkt. No. 125); and The Episcopal Church in
South Carolina' s motion to intervene (Dkt. No. 126). The Court GRANTS Bishop Lawrence' s
motion to amend his answer to The Episcopal Church of the United States' complaint-inintervention (Dkt. No. 134).

AND IT IS SO ORDERED.

United States District Court Judge
April / b, 2018
Charleston, South Carolina

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