Monday, December 20, 2010

Federal Court Issues Stay in Ft. Worth Trademark Case

I resolved to stay away from ECUSA's litigation troubles during this season of the nativity, but I still have to report to my readers breaking news, if it is important. And this is important news: the federal district court in Fort Worth today issued a one-page order staying all further proceedings in the trademark infringement action brought by the rump diocese of Fort Worth and its "corporation" (which does not actually exist, for reasons I explain below). The stay will remain in effect until the court resolves the pending motions by the real diocese of Fort Worth and its real corporation to intervene in the case to protect their property rights in their name and corporate insignia.

With an apparently unlimited litigation budget in Texas, the Episcopal Church (USA) and its puppet diocese of Fort Worth have tried all manner of strategies to accomplish an end run around the courts of Texas and achieve a quick victory in their dispute with Bishop Jack L. Iker and his Episcopal Diocese of Fort Worth. (Note to readers from ECUSA: "Episcopal" means "of, or having to do with, a bishop". It does not necessarily mean "affiliated with the Protestant Episcopal Church in the United States of America." ECUSA has no trademark in the word "Episcopal", which is used by a number of churches within the Anglican Communion.)

As you can read in the series of earlier posts linked at this page, the history of the litigation in Fort Worth is a complex one. Here is the Condensed Version.

After Bishop Iker and his diocese left ECUSA in November 2008, the Presiding Bishop staged her usual coup in the territory of that diocese, organizing the dissenting parishes, calling on her own a "special convention", and arranging for the election of a "provisional bishop" who could immediately be used as the figurehead in a lawsuit against Bishop Iker. The strategy is to pretend that "dioceses can never leave the Church; only people can" -- hence, go into court pretending to be the "one and only Episcopal Diocese of Fort Worth", and sue in both its name and in the name of its associated Corporation.

That strategy ran aground on a Texas court rule, which allows the defendant in any case to challenge the legal authority of the plaintiffs' attorneys to file the pending lawsuit. Bishop Iker simply argued that he was the head of the Corporation and the Diocese of Fort Worth, and he had not authorized either Kathleen Wells or Jonathan Nelson to bring suit in the name of the Corporation or the Diocese.

The trial court judge agreed that Ms. Wells and Mr. Nelson had not made a sufficient proof of their authority, but he put off striking their pleadings, as required by the Rule. Bishop Iker took a special review proceeding to the Fort Worth Court of Appeal, which ordered the trial court to strike all the pleadings (including a pending motion for summary judgment) that had been filed by the two attorneys.

Nothing daunted, the same attorneys went into another Texas court, in Hood County, where in a separate lawsuit they claimed again to represent the "Episcopal Diocese of Fort Worth" and its Corporation. That court eventually stayed the Hood County action pending the outcome of the original proceedings (in Tarrant County).

By now, Bishop Ohl had replaced Bishop Gulick as provisional bishop of the rump diocese. His next move was to add some more attorneys, and to have them bring a brand-new lawsuit in the United States District Court for the Fort Worth area -- once again, using the name of the Episcopal Diocese of Fort Worth and its Corporation. This time, they sued just Bishop Iker as defendant, and claimed that he was infringing on their trademark, and making illegal use of the official corporate insignia.

As emerged somewhat later, in preparation for this lawsuit the plaintiffs had actually gone and registered the diocesan name and insignia with the U.S. Patent and Trademark Office. In order to do so, their attorney had to swear to the USPTO that "to the best of his/her knowledge and belief, no other person, firm, corporation, or association has the right to use the mark in commerce." He had not informed either Bishop Iker or his diocese of the application for registration; nor had he told the USPTO about the Texas litigation, in which his clients had asked, among other things, for the same relief they sought in the new federal case. Their ability to obtain that relief in the State court lawsuit had been curtailed by the ruling from the Court of Appeal, which forbade them from suing in the name of the entity they claimed owned the trademark -- and hence their attempt to do an end run in federal court.

Bishop Iker responded to the lawsuit, and his diocese and its Corporation filed for leave to intervene in the action, to protect their property rights. The Corporation's proposed complaint in intervention sought as a remedy to have the plaintiffs' federal trademark registrations canceled, on grounds of fraud and misrepresentation.

Bishop Ohl and his attorneys filed objections to the motions to intervene, claiming that only ECUSA could determine which entity was the proper Diocese of Fort Worth, and so was entitled to use the name and the insignia. They asserted that ECUSA's "ecclesiastical determination" of that fact in Bishop Ohl's favor was unreviewable in any civil court.

Bishop Iker responded, and showed how the federal lawsuit was an attempt to evade the ruling by the Texas Court of Appeal, which had ordered the plaintiffs' attorneys not to file any further pleadings in the name of the Corporation or the Diocese. Bishop Ohl argued in response that the Court of Appeal's decision was only an interim ruling, and not a final judgment which could be binding on the federal court.

Then the California Court of Appeal's decision came down in the San Joaquin case, involving similar facts with Bishop Schofield. (I discussed that decision in detail in this earlier post.) The rump diocese tried to take advantage of the Court's language in that decision holding that ECUSA's recognition of Bishop Lamb and his diocese was binding on the civil courts, and could not be challenged. It argued that the decision furnished guidance to the federal court in resolving the problem of which was the real diocese of Fort Worth.

However, recall that the Fresno Court of Appeal also held that the fact that Bishop John-David Schofield was the bishop of the Anglican Diocese of San Joaquin was just as much an "ecclesiastical fact" which could not be challenged in any civil court. Had the Court of Appeal regarded ECUSA's recognition of Bishop Lamb as conclusive, it would never have reversed the trial court's decision to that effect and remanded the case to that court for resolution of the disputed property issues on neutral principles of law.

Today, Federal District Judge Terry R. Means in Fort Worth showed that he grasped what ECUSA and its rump diocese were trying to do. His one-page order (not yet posted on the diocese's website; I'm sure it will be shortly) contains the following language:
Before the Court is Defendant’s Emergency Motion to Stay (doc. 31). By the motion, Defendant seeks a stay of all proceedings in this cause, except for the motions to intervene (docs. 10, 12), pending the Court’s ruling on the motions to intervene. Defendant explains that the Court’s resolution of the intervention motions will have dispositive implications on the remaining proceedings.

After review, the Court agrees. Therefore, in the interests of judicial economy and fairness to all parties involved, the Court GRANTS the motion.
Once again, in an attempt to do an end run around the State courts, ECUSA had filed in the federal court action a motion for summary judgment, making all the usual "hierarchical" arguments. But once again, their strategy has been rebuffed. The courts have uniformly told ECUSA and its attorneys thus far: "Not so fast. You cannot assume the very point at issue by pretending to be what you have not shown yourself to be. Since there is admittedly only one 'Episcopal Diocese of Fort Worth' and one 'Corporation of the Episcopal Diocese of Fort Worth' (no one else having filed any incorporation papers under that name), you have not demonstrated how you are legitimately in charge of those entities. Until you do so, you cannot come into court pretending to be them from the outset."

We will have to see what Judge Means eventually rules on the motions to intervene, before being able to say definitively that ECUSA's strategy has not worked. But the fact that he would stay all other proceedings in the case until he decides to allow Bishop Iker's Diocese and Corporation to come into the case to protect their own property interests cannot be a favorable omen for Bishop Ohl and his attorneys, or for those who are underwriting the enormous legal costs of all these proceedings.


  1. If I were an attorney involved in these TEC lawsuits, I would be worried. It seems not much is going their way recently. I am glad to see that some judges can see thru their ruse.

  2. It seems to me that ECUSA has now been consistently and willfully refusing to admit its blindness to the straightforward language of its own Constitution and Canons for something of the order of at least three years. Has God allowed them to be overcome with madness spurred on by their own self-righteousness, and will He continue to permit them to maintain that blindness? If so, they will ultimately spend themselves out of existence in what can only be termed frivolously ill-advised litigation. Perhaps that is what we should all be praying for, that God will allow ECUSA the blind pursuit of its insane policies to the point of its own self-destruction in order that they may be held up as an example of where such disobedient madness leads, pour encourager l'autres.

    Pax et bonum,
    Keith Töpfer