Doe v. Holy

434 F.Supp.2d 925

John V. DOE, Plaintiff, v. HOLY SEE, et al., Defendants.

No. CV 02-430-MO.

United States District Court, D. Oregon.

June 7, 2006.

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Kevin K. Strever, William A. Barton, Barton & Strever, PC, Newport, OR, Jeffrey R. Anderson, Jeff Anderson & Associates, St. Paul, MN, for Plaintiff.

Christine Coers-Mitchell, Thomas M. Christ, Cosgrave Vergeer Kester, LLP, Portland, OR, Jeffrey S. Lena, Law Office of Jeffrey S. Lena, Berkeley, CA, James C. Geoly, Burke Warren MacKay & Serritella PC, Chicago, IL, for Defendants.

OPINION AND ORDER

MOSMAN, District Judge.

Plaintiff filed this action against the Holy See, Archdiocese of Portland, and other defendants for the alleged tortious conduct of Father Andrew Ronan, a Catholic priest at St. Albert's Church in Portland Oregon. Plaintiff asserts three causes of action against the Holy See: respondeat superior, negligence, and fraud. Currently before the court is the Holy See's motion (# 133) to dismiss for lack of subject matter jurisdiction. The Holy See, a foreign sovereign, is presumptively immune from suit under the Foreign Sovereign Immunity Act ("FSIA") unless an exception applies. Plaintiff argues this court has subject matter jurisdiction under both the commercial activity exception and the tortious activity exception. Because the tortious activity exception applies in this case, the Holy See's motion (# 133) to dismiss is DENIED.

I. FACTS

Plaintiff filed suit against the Holy See on April 3, 2002, and filed an amended complaint two years later on April 1, 2004. In August 2005, plaintiff properly served the Holy See. The amended complaint alleges defendants Holy See, Archdiocese of Portland, and Order of Friar Servants ("Order") placed Father Andrew Ronan ("Ronan") in St. Albert's Church in Portland in approximately 1965. Pl.'s Compl. ¶ 15. There, Ronan allegedly subjected plaintiff, then 15 or 16, to sexual abuse occurring in the monastery and "surrounding areas." Id.

Prior to his placement in Portland, Ronan sexually molested a minor while employed with the Archdiocese of Armagh, at Our Lady of Benburb, Ireland in 1955-1956. Id. at ¶ 11. According to church records, Ronan apparently admitted to abusing the youth and was removed from his position due to his admissions. Id. Ronan was placed in defendant Order's Chicago province, at the all-boys St. Philip's High School where he worked in the private counseling office. Id. at ¶ 12. Three male students made independent reports of sexual abuse committed by Ronan, and Ronan admitted to all three reports. Id. Ronan also expressed confusion as to why he would be assigned to work in the private counseling office where temptation to molest children would be maximized. Id. In 1965, Ronan was placed in Portland. Id. at ¶ 13.

For purposes of the Holy See's motion to dismiss on grounds of sovereign immunity, the significant portions of the complaint are plaintiff's allegations that bring the Holy See's actions within the commercial or tortious activity exceptions. The most important facts alleged include the following:

(1) Defendant Holy See has unqualified power over the Catholic Church, including each and every individual section of the Church. Id. at ¶ 3.

(2) Defendant Holy See directs, supervises, supports, promotes and engages in providing religious and pastoral guidance, education and counseling services to Roman Catholics world-wide in exchange for all or a portion of the revenues derived from its members for these services. The Holy See engages in these activities through its agents, cardinals, bishops and clergy, including religious order priests, brothers and sisters, who engage in pastoral work under the authority of its bishop. Id.

(3) Defendant Holy See creates, appoints, assigns and reassigns bishops, superiors of religious orders, and through the bishops and superiors of religious orders has the power to directly assign and remove individual clergy. Defendant Holy See also examines and is responsible for the work and discipline and all those things which concern bishops, superiors of religious orders, priests and deacons of the religious clergy. Id.

(4) Father Ronan was employed by all defendants as a priest. The duties of Ronan's employment included but were not restricted to teaching the word of God and the law of the church, providing pastoral services, spiritual care, guidance and counseling, and obtaining financial support for the church. Id. at ¶ 10.

(5) After Ronan admitted to sexually molesting minors in Armagh and Chicago, Defendant Catholic Bishop, acting in accordance with the policies, practices, and procedures of Defendant Holy See, failed to remove or discipline Ronan, or to warn others, including Defendant Archdiocese, of Ronan's propensities. Id. at ¶ 11-12.

(6) Despite knowing of Ronan's dangerous propensities to abuse children, the Holy See placed Ronan in defendant Archdiocese in Portland, Oregon. Id. at ¶ 13.

(7) Defendants held themselves out as the counselors and instructors on matters that were spiritual, moral and ethical. By maintaining and encouraging such a relationship with plaintiff, defendants entered into a fiduciary relationship with plaintiff. Id. at ¶ 14.

(8) When plaintiff was approximately 15 to 16 years old, Ronan, using his position of authority, trust, reverence and control as a Roman Catholic priest, engaged in harmful sexual contact upon the person of plaintiff on repeated occasions. Id. at ¶ 15.

(9) Ronan and Defendants Catholic Bishop, Archdiocese and Order were the agents of Defendant Holy See, acting in furtherance of the purposes of the Defendant Holy See, doing the kinds of acts they were engaged to perform, and were motivated, at least in part, to further the purposes of Defendant Holy See. Id. at ¶ 34.

(10) Defendant Holy See, by and through its agents, granted Ronan faculties to perform as a Roman Catholic priest. Defendant Holy See, by and through its agents, also certified and held Ronan out to the community of the faithful as a fit and competent agent of the Holy See and a minister of Christ. Id. at ¶ 35.

(11) Plaintiff was molested by Ronan while plaintiff was under the authority and influence of Ronan as a Roman Catholic priest which authority was granted to him by Defendant Holy See, Archdiocese and Order. Id. at ¶ 36.

II. SUBJECT MATTER JURISDICTION UNDER THE FSIA

A. Legal Standard Governing Motion to Dismiss under Rule 12(b)(1)

A party challenging the court's jurisdiction under Rule 12(b)(1) may do so either on the face of the pleadings (a facial attack) or by presenting extrinsic evidence to refute the facts alleged in the complaint (a factual attack). White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). In evaluating a facial attack to jurisdiction, the court must accept as true the factual allegations in plaintiff's complaint. Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir.2001). Where the attack is factual, the court may consider evidence presented on the jurisdictional issue and resolve factual disputes, if necessary. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); see Valdez v. United States, 837 F.Supp. 1065, 1067 (E.D.Cal.1993). The Holy See's motion to dismiss presents a facial attack to plaintiffs amended complaint, and I will accept as true plaintiff's factual allegations. Def.'s Motion to Dismiss ("MTD") at 1.

B. FSIA Statutory Framework

The FSIA is the "sole basis for obtaining jurisdiction over a foreign state in our courts." Republic of Austria v. Altmann, 541 U.S. 677, 699, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) (internal quotation marks and citation omitted). Structurally, the FSIA articulates the general rule that foreign states are immune from the jurisdiction of the United States courts unless the claim against the foreign state falls within an exception to immunity. 28 U.S.C. §§ 1330(a) & 1604; Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993); Siderman de Blake v. Republic of Arg., 965 F.2d 699, 706 (9th Cir.1992).

The FSIA places the ultimate burden on the foreign state to show it is immune from suit. 28 U.S.C. § 1605; Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d 777, 779 (9th Cir.1991). Initially, the foreign state must show it falls within the protection afforded by the FSIA by showing that it is, in fact, a foreign state. Siderman, 965 F.2d at 708 n. 9. If the foreign state makes that showing, the burden of production shifts to the plaintiff to show, either by the allegations in the complaint or by extrinsic evidence, that at least one of the FSIA exceptions applies. Id. "Once the plaintiff offers evidence that an exception to immunity applies, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply." Schoenberg, 930 F.2d at 779 (quoting Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987)); Meadows v. Dom. Rep., 817 F.2d 517, 522-23 (9th Cir.1987); Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993).

Here, the sovereign status of the Holy See is not in dispute. Def.'s MTD at 5; Pl.'s Resp. at 2. Plaintiff invokes two exceptions to immunity under FSIA—the commercial activity exception, 28 U.S.C. § 1605(a)(2), and the tortious activity exception, 28 U.S.C. § 1605(a)(5). Before reaching these exceptions, the Holy See makes two threshold arguments.

C. Threshold Arguments in Holy See's Facial Attack

Before reaching the heart of FSIA immunity, the Holy See argues: (1) the court should disregard plaintiffs conclusory allegations, and (2) plaintiffs complaint fails to plead facts with...