Suit Alleges Arrest Hurt Full Rush Band

By Chris W. Colby, Naples Daily News, January 22, 2006

With all three members of the world-famous rock group Rush now suing members of the Collier County Sheriff's Office and the hotel where their guitarist was hurt, the legal battle that began after a New Year's Eve 2003 party continues.

Rush founder Alex Zivojinovich, known onstage as Alex Lifeson, his son Justin and daughter-in-law Michelle were given permission to add bandmates Neil Peart and Geddy Lee to their lawsuit in U.S. District Court in Fort Myers.

The multimillion-dollar lawsuit alleges the band suffered financial damages because of Alex Zivojinovich's injuries, arrest and criminal case.

Zivojinovich's nose was broken by one of the deputies, and he was zapped with a stun gun several times. After his arrest, state prosecutors charged him with two felony counts of battery on a law enforcement officer.

The altercation happened after his son, Justin, was asked to leave the Ritz-Carlton Hotel. Justin was reported by security agents as drunk, and he had jumped onstage to sing where the house band had just performed. He was asked to leave but resisted, and deputies were called to force his removal from the hotel.

A struggle followed, in which Justin also was battered, according to his lawsuit. His father was hurt after trying to intercede, according to court papers.

Alex Zivojinovich's injuries and criminal charges cost the band a lot of time in the recording studio. It interrupted part of its 30th anniversary world tour. And the pending case hindered his international travel, even though he was out of jail on bond and was allowed to leave the country.

"Basically what we're talking about is a very unique organization," Naples attorney Michael McDonnell said of his clients, not only the band but its corporations. "They're up there with the Beatles and the Stones, and because it's a unique organization you can't just replace one of the members."

After the lawsuit was amended to add the band members and the five companies associated with them, a defendant filed a motion to dismiss the complaint.

Judith Mercier, an Orlando lawyer for Ritz-Carlton Hotel Co. and security chief Frank Barner, argued the plaintiffs can't prove any injury to the other band members.

"A plaintiff who complains of harm flowing merely from the misfortunes visited upon a third person by the defendant's acts is generally said to stand at too remote a distance to recover (monetary damages)," according to the motion.

Rush's claim of a loss of business revenue is too remote and indirect to establish that all its members suffered damages, according to Mercier, who was unavailable for comment Thursday.

The attorney for the deputies has yet to file a response to the amended lawsuit. But the attorney has said he's seen no evidence that the band lost any revenue.

Even so, the defendants have argued the three Zivojinoviches weren't falsely arrested or battered by deputies. The filed court papers alleged Justin was drunk and resisted the deputies, who only were following the hotel's request that he be escorted from the property because of his disorderly behavior.

When Alex Zivojinovich intervened, he shoved Deputy Amy Stanford down a stairwell and spit blood in Deputy Christopher Knott's face, according to countersuits, which seek an unspecified amount of damages.

Prosecutors later dropped a misdemeanor charge of resisting arrest without violence against Michelle Zivojinovich. As their trials were set to begin, the father and son pleaded no contest to a misdemeanor, without a formal conviction on the charge. They received a year of probation.

McDonnell said Thursday he believes the plaintiffs' arguments about damages are sufficient.

"We're prepared to show there were tens of thousands of dollars worth of damages. It'll be up to a jury to determine how much to award," McDonnell said.