The opinion of the court was delivered by: Arcara, District Judge.
Currently before the Court are motions by various defendants
for various forms of relief. Defendants Operation Rescue
National ("ORN") and Philip "Flip" Benham
have moved to dismiss the claims against them for lack of
personal jurisdiction. Defendants Norman Weslin, Bernice
Kleinhammer and Karen Jackson have moved to dismiss the claims
against them for insufficiency of service of process. Finally,
defendants Rescue Rochester, Mary Melfi, Gerald Crawford, Amy
Dorscheid, Robert Dorscheid, Michael Warren, Michael McBride,
Robert Pokalski, Mary Beth Powley, Bernice Kleinhammer, W.
Randolph Smith and William Smith (collectively referred to
herein as the "Rochester defendants") have moved to sever the
claims against them and to transfer the severed claims to the
"Rochester Division,"*fn1 or alternatively, to try the
claims against them separately in Buffalo.
After reviewing the submissions of the parties, the Court
denies all pending defense motions.
A. Nature of the Action and Parties
Plaintiffs include the People of the State of New York, by
Eliot Spitzer. Attorney General of the State of New York,
several medical facilities and doctors that provide
abortion-related services, and organizations that advocate
abortion rights. Plaintiffs seek to enjoin defendants, who are
individuals and organizations who allegedly plan, engage in or
have engaged in protests outside facilities that provide
abortion-related services in the Western District of New York,
from protesting within the Western District in a manner that
violates the Freedom of Access to Clinic Entrances Act,
18 U.S.C. § 248 ("FACE"), creates a public nuisance, or is
In their initial submissions, plaintiffs described the recent
history of anti-abortion protests in this District and provided
evidence about the then-upcoming "Operation Save America"
protests, which were scheduled to take place throughout the
District from April 18 to April 25, 1999. In April 1999, the
Court held a three-day hearing, and reviewed substantial
evidentiary submissions, before issuing a temporary restraining
order ("TRO") against all defendants on April 15, 1999. The
Court has scheduled an evidentiary hearing on plaintiffs'
application for a preliminary injunction to begin on July 28,
The New York State Attorney General obviously represents the
citizens of the Western District of New York. Plaintiff doctors
and abortion-related facilities are located in Buffalo,
Rochester, Brighton and Amherst, all in this District.
Additional abortion-related facilities located in this District
include Planned Parenthood clinics in Batavia, Greece,
Lockport, Niagara Falls, North Tonawanda, and West Seneca.
Defendants reside in numerous cities and towns in the Western
District, and several reside outside of the District. Each of
the defendants, according to the Complaint, has planned and or
engaged in conduct that threatened to unlawfully impede, or
has unlawfully impeded access to abortion-related services in
The alleged activities of the various defendants are not
geographically circumscribed, nor are they independent of one
another. For example defendant Norman Weslin, who was
previously convicted of FACE violations in Rochester, now lives
in Buffalo. (Affidavit of Elizabeth Sholes, sworn to March 21,
1999 ("Sholes Aff.") at ¶ 16). Defendant Weslin and his
organization, the Lambs of Christ, have engaged in blockades of
abortion facilities in many locations, including Rochester.
(Id. at ¶¶ 16-17). Defendants Gerald Crawford, Michael Warren
and Mary Beth Powley, who live in the Rochester area, were
arrested for blockading Buffalo-area abortion facilities during
the 1992. "Spring of Life" protests. (Id. at ¶ 14). Defendant
Mary Melfi, who lives in the Rochester area, has allegedly
engaged in protests in
Rochester and at one or more Planned Parenthood locations in
the Western District. (Affidavit of Carol Love, sworn to March
20, 1999 ("Love Aff.") at ¶¶ 22-23, 25).
Before this action was begun, defendants ORN, a nationwide
organization headquartered in Dallas, Texas, and Philip "Flip"
Benham, a resident of Dallas, had announced "Operation Save
America," a week of protests scheduled to take place throughout
the Western District from April 18 to April 25, 1999. (See
Sholes Aff. at Exhibits B & C; Affidavit of Robert Behn, Sworn
to April 6, 1999 ("Behn Aff.") at Exhibit A). Defendant Benham,
who is the National Director of ORN, (Affidavit of Philip
Benham, sworn to April 3, 1999 ("Benham Aff.") at ¶ 3), has
traveled to New York State repeatedly to participate in
protests at abortion facilities, and in January 1999, protested
at plaintiff Buffalo GYN Womenservices in anticipation of
further protests in New York State. (Benham Aff. at ¶¶ 9, 16;
Affidavit of Helen Dailey, sworn to March 21, 1999 ("Dailey
Aff.") at ¶ 21). Benham is the author of the ORN newsletter
(Benham Aff. at ¶ 6), and in January 1999, used the newsletter
to invite other anti-abortion protesters to come to Buffalo and
Rochester during Operation Save America. (Sholes Aff. at
In March 1999, ORN's Internet site identified defendants Rev.
Robert Behn and Bonnie Behn, who are Buffalo residents, as well
as defendants Michael Warren and Gerald Crawford, who live in
or near Rochester, as involved in planning Operation Save
America. (Id. at Exhibit C). Defendant Warren, who lives in
Spencerport. New York, and defendant Rescue Rochester used the
Rescue Rochester newsletter to urge other anti-abortion
protesters to participate in Operation Save America. (Love Aff.
at Exhibit F). The published ...