Doe v. Holy See et al

Filing 109

ORDER & REASONS granting 92 Motion to Dismiss for Lack of Jurisdiction, w/out prejudice to the pla being permitted to attempt service w/in 45 days; denying 95 Motion for limited discovery; & granting 100 Motion to Stay discovery, but the stay may be lifted if a supported request is timely filed, fully briefed, & granted by the Court. Signed by Judge Martin L.C. Feldman on 4/2/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN DOE I

CIVIL ACTION

v.

NO. 13-128

HOLY SEE, ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court are three motions: (1) Holy See's motion to
dismiss for insufficient service of process, insufficient process
and lack of personal jurisdiction; (2) motion to limit discovery to
prescription by defendants The Society of the Roman Catholic Church
of the Diocese of Lake Charles, the Most Reverend Glen J. Provost,
and the Roman Catholic Church of the Archdiocese of New Orleans;
and (3) the plaintiff's motion to stay discovery pending resolution
of Holy See's defense of foreign sovereign immunity.

For the

reasons

but

that

follow,

Holy

See's

motion

is

GRANTED,

the

plaintiff's request for a reasonable time to attempt service of
process is GRANTED; the Diocese, Archdiocese, and Bishop Provost's
motion for limited discovery is DENIED; and the plaintiff's motion
to stay discovery is GRANTED.
Background
This case arises out of troubling allegations that a Catholic
priest sexually abused a young parishioner, and that leadership
within the Roman Catholic Church concealed and covered-up the
sexual abuse.
1

John Doe alleges that he has suffered damages as a result of
being sexually abused by former Catholic Priest Mark Anthony
Broussard at various locations in Louisiana from 1985 to 1988 and
again in 1992, when Doe was a young boy.

Doe alleges that he was

so severely traumatized by Broussard's deviant sexual conduct that
he lost all recollection and memory of the specific incidents and
acts of sexual abuse until March 2012.1
On January 23, 2013 plaintiff, suing pseudonymously as John
Doe, sued Most Reverend Gregory M. Aymond, his predecessors and
successors as Archbishop of the Roman Catholic Church of the
Archdiocese of New Orleans; the Holy See (State of the Vatican);
the Roman Catholic Church of the Archdiocese of New Orleans; the
Society of the Roman Catholic Church of the Diocese of Lake
Charles; Most Reverend Glen J. Provost, his predecessors and
successors as Bishop of the Roman Catholic Diocese of Lake Charles;
and Mark Anthony Broussard.

In his original complaint, the

plaintiff details the history of concealment of sexual abuse by the
Roman Catholic Church, and presents various claims against each of
the defendants, including a claim that the defendants were aware of

1

According to the plaintiff, in March 2012, the Calcasieu
Parish Sheriff contacted plaintiff after the Sheriff had reviewed
the Diocese of Lake Charles' personnel file on Broussard; in a
deposition given by Broussard in 1998, Broussard apparently
confessed that he had sexually abused plaintiff and other
children as a Catholic cleric and priest with the Archdiocese of
New Orleans and the Diocese of Lake Charles. Only after hearing
about Broussard's confession did plaintiff recall Broussard's
sexual abuse.
2

the harm to the plaintiff and that the concealment effort was part
of a civil conspiracy to keep the rampant sexual abuse in the
church a secret; he charges the defendants committed fraud in their
concealment of Broussard's sexual misconduct; that the Archdiocese
and Diocese defendants negligently employed Broussard, failed to
provide

reasonable

supervision,

failed

to

investigate,

used

deception to conceal his sexual misconduct, and breached their
fiduciary duty to plaintiff;

the Holy See breached its duties to

protect and warn plaintiff, and to provide reasonable supervision
of

its

employees,

as

well

as

concealed

child

sexual

abuse,

breaching its duties under federal common law, state law, and
international law; and that the Holy See, Broussard, and the
Archdiocese and Diocese defendants are liable for intentional
infliction of emotional distress.

Plaintiff seeks $6,000,000 in

damages and $12,000,000 in exemplary damages.
The original summons directed to the Holy See issued on
February 13, 2013; a revised summons, correcting the amount of time
allowed for the Holy See to respond under the Foreign Services
Immunities Act, issued on February 26, 2013.
On March 19, 2013 the Lake Charles Diocese and Bishop Provost
filed an answer. A few days later, the New Orleans Archdiocese and
Archbishop Aymond filed motions requesting dismissal. On April 23,
2013 the plaintiff requested that the Clerk of Court transmit his
complaint and other related service documents to the head of the

3

Holy See's foreign ministry pursuant to 28 U.S.C. § 1608(a)(3).
The next day, the Court granted Archbishop Aymond's motion to
dismiss the claims against him (as well as the claims asserted
against

"the

"predecessors

Archbishops"
and

generally

successors");

the

or

Archbishop

Court

also

Aymond's

granted

the

Archdiocese of New Orleans' motion to dismiss the punitive damages
claims asserted against it.

The next day, on April 25, 2013, the

Clerk of Court sent the plaintiff's service documents by registered
mail to the Holy See's Secretary for Relations with States; but on
May 20, 2013 the service documents were returned to the Clerk of
Court, marked "refused."
On May 23, 2013, Bishop Provost and the Society of the Roman
Catholic Church of the Diocese of Lake Charles requested judgment
on the pleadings; Bishop Provost requested that the plaintiff's
claims against him be dismissed for the same reasons that the Court
dismissed the claims against Archbishop Aymond; and the Diocese
requested dismissal of the punitive damages claims asserted against
it.

Thereafter, the Court granted the plaintiff's "emergency"

motion to reset the submission date on the Bishop's and Diocese's
motion; the plaintiff insisted that an amended complaint would be
forthcoming.2

2

Counsel for plaintiff suggested that "deficiencies in
Plaintiff's pleadings [that] have previously been recognized and
addressed by the Court" would be remedied when plaintiff filed an
amended complaint. In granting the plaintiff's request to
continue the submission date on the motion, the Court instructed:
4

On July 5, 2013 the plaintiff requested, and the Clerk of
Court entered, an entry of default as to Mark Broussard. That same
day, the plaintiff requested that the Clerk of Court dispatch the
original

complaint

and

other

service

documents

to

the

State

Department to effect service upon the Holy See via diplomatic
channels under 28 U.S.C. § 1608(a)(4).

Less than two weeks later,

on July 16, 2013, the plaintiff requested leave to file an amended
complaint

and

responded

to

the

motion

for

judgment

on

the

pleadings, urging the Court to consider the proposed amended
pleading.
In connection with the plaintiff's efforts to serve the Holy
See, on July 22, 2013 the Clerk of Court filed its return receipt
for the dispatch of the service materials (including the original
complaint) to the Office of Legal Affairs at the Department of
State.
Two days later, on July 24, 2013, the Court granted in part
and denied in part the Bishop's and the Diocese's motion for
judgment on the pleadings: the Court granted the Diocese's request
that the punitive damages claim asserted against it be dismissed,
but denied, without prejudice, the Bishop's request that the

To the extent that the plaintiff suggests in his papers
that he intends to file an amended complaint, the Court
reminds counsel to familiarize herself with the Federal
and Local Rules and admonishes counsel not to delay any
request to amend the complaint that was filed on
January 23, 2013.
See Order dated 6/5/2013.
5

plaintiff's

claims

be

dismissed,

pending

the

outcome

of

the

plaintiff's motion to amend his pleadings set before the magistrate
judge.

The Court observed: "By waiting until July 16, 2013 to

request leave to file an amended complaint, counsel for plaintiff
did not heed this Court's admonishment... 'not to delay any request
to amend the complaint that was filed on January 23, 2013'"; the
Court noted the "dilatory conduct" of plaintiff's counsel, and
pointed out that the plaintiff had been placed on notice of the
deficiency of the original complaint "as early as March 22, 2013."
On August 21, 2013 the magistrate judge granted in part and
denied in part the plaintiff's motion for leave to amend his
complaint.

The magistrate judge granted the plaintiff's amendment

to the extent that (i) the plaintiff removed all defendants except
Broussard from his claim for punitive damages; (ii) the plaintiff
removed the generic terms "Archbishops" and "Bishops" from the
amended complaint; and (iii) the plaintiff adds numerous factual
allegations "regarding Broussard's...training...that clarify the
direct liability claims against the Holy See and the Archdiocese
and its Archbishops"; however, the magistrate judge denied the
amendment to the extent the plaintiff sought to reinstitute an
individual claim against Archbishop Aymond because "[t]he new
allegations in the amended complaint fail to cure the deficiencies
outlined in the District Court's Order dated April 24, 2013."

The

magistrate judge ordered that the plaintiff file his amended

6

complaint within 14 days.
After the plaintiff filed his amended complaint on September
4, 2013, Bishop Provost renewed his motion for judgment on the
pleadings,

focusing

original complaint.

on

the

allegations

from

the

plaintiff's

On October 9, 2013, this Court denied the

motion, observing: "The [plaintiff's] allegations might or might
not be provable, or even true, but the defendant simply has not
demonstrated that the plaintiff's amended complaint fails to state
a claim for relief that is plausible on its face."
The plaintiff has not attempted to serve the Holy See with the
amended complaint or any revised service documents. On December 6,
2013 the Embassy of the United States of America to the Holy See
transmitted the original complaint and related service documents to
the Holy See's Secretariat of State via diplomatic note.

The

service documents included the original complaint; the notice of
suit described the allegations in the original complaint and stated
that $18,000,000 in damages and exemplary damages were sought; the
notice also identified the plaintiff's original complaint as the
nature of documents served, and stated that a response to the
complaint was due not later than 60 days after these document[s]
are received.
Holy See now seeks dismissal of the plaintiff's lawsuit for
insufficient service of process, insufficient process, and lack of
personal jurisdiction.

The Archdiocese, the Diocese of Lake

7

Charles, and Bishop Provost now seek discovery limited to the issue
of prescription.

And, the plaintiff requests a stay of all

discovery pending this Court's resolution of the Holy See's defense
of foreign sovereign immunity.
I.
A.
Holy See invokes its immunity and seeks dismissal of the
plaintiff's lawsuit on the grounds of lack of personal jurisdiction
under Rule 12(b)(2); insufficient process under Rule 12(b)(4); and
insufficient service of process under Rule 12(b)(5).
Holy See is indisputably a foreign sovereign.

The Foreign

Sovereign Immunities Act is the sole basis for personal and subject
matter jurisdiction over a foreign sovereign in United States
courts.

Argentine Republic v. Amerada Hess Shipping Corp., 488

U.S. 428, 434 (1989); 28 U.S.C. §§ 1330, 1602-11.
As a sovereign, the Holy See is presumptively immune from
suit.

28 U.S.C. § 1604.

FSIA immunity "is an immunity from the

burdens of becoming involved in any part of the litigation process,
from pre-trial wrangling to trial itself." United States v. Moats,
961 F.2d 1198, 1203 (5th Cir. 1992); see also Kelly v. Syria Shell
Petroleum Dev., 213 F.3d 841, 849 (5th Cir. 2000)(holding that
foreign sovereign immunity includes immunity "from the costs, in
time and expense, and other disruptions attendant in litigation").
This is a serious issue, but one whose resolution must be delayed
due to glaring insufficiencies in the manner in which this case has
8

been pursued.
B.
"Service of process, under longstanding tradition in our
system of justice, is fundamental to any procedural imposition on
a named defendant."

Murphy Bros., Inc. Michetti Pipe Stringing,

Inc., 526 U.S. 344, 350 (1999).

"In the absence of valid service

of process, proceedings against a party are void."

Aetna Bus.

Credit v. Universal Decor, 635 F.2d 434, 435 (5th Cir. 1981).
Under Federal Rule of Civil Procedure 4(c)(1), a "summons must
be served with a copy of the complaint."

Fed.R.Civ.P. 4(c)(1).

"The plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish the
necessary copies to the person who makes service."

Id.

A foreign state "must be served in accordance with 28 U.S.C.
§ 1608."

Fed.R.Civ.P. 4(j)(1).

Section 1608(a) of the Foreign

Service Immunities Act "sets forth the exclusive procedures for
service on a foreign state.

Magness v. Russian Fed'n, 247 F.3d

609, 615 (5th Cir. 2001)(emphasis in original).

Proper service of

process under section 1608(a) is a statutory prerequisite for the
exercise of personal jurisdiction over a foreign sovereign.

28

U.S.C. § 1330(b).
The U.S. Court of Appeals for the Fifth Circuit mandates that
a plaintiff "strictly comply with the statutory service of process
provisions when suing a foreign state...under section 1608(a)."

9

Magness, 247 F.3d at 611.

In fact, actual notice to a foreign

state of the pendency of a lawsuit is "irrelevant."

Finamar

Investors v. Republic of Tadjikistan, 889 F. Supp. 114, 118
(S.D.N.Y. 1995); see also Magness, 247 F.3d at 617.

Only strict

adherence to the statutory requirements for accomplishing service
renders service effective.

Magness, 247 F.3d at 615-16.

Section 1608(a)'s service of process provisions are explicitly
hierarchical:

a

plaintiff

required by the statute.

must

attempt

Id. at 613.

service

in

the

order

Section 1608(a) sets forth

the following methods of service:
(a) Service in the courts of the United States and of the
States shall be made upon a foreign state or political
subdivision of a foreign state:
(1) by delivery of a copy of the summons and
complaint in accordance with any special arrangement for
service between the plaintiff and the foreign state or
political subdivision; or
(2) if no special arrangement exists, by delivery of
a copy of the summons and complaint in accordance with an
applicable international convention on service of
judicial documents; or
(3) if service cannot be made under paragraphs (1)
or (2), by sending a copy of the summons and complaint
and a notice of suit, together with a translation of each
into the official language of the foreign state, by any
form of mail requiring a signed receipt, to be addressed
to and dispatched by the clerk of court to the head of
the ministry of foreign affairs of the foreign state
concerned, or
(4) if service cannot be made within 30 days under
paragraph (3), by sending two copies of the summons and
complaint and a notice of suit, together with a
translation of each into the official language of the
foreign state, by any form of mail requiring a signed
receipt, to be addressed and dispatched by the clerk of
court to the Secretary of State in Washington, District
of Columbia, to the attention fo the Director of Special
10

Consular Services – and the Secretary shall transmit one
copy of the papers through diplomatic channels to the
foreign state and shall send to the clerk of court a
certified copy of the diplomatic note indicating when the
papers were transmitted.
28 U.S.C. § 1608(a).
The notice of suit served upon a foreign sovereign must be "in
a form prescribed by the Secretary of State by regulation."

Id.

22 C.F.R. § 93.2 "articulate[s] the necessary ingredients of
sufficient 'notice of suit' under Section 1608."

Fly Brazil Grp.,

Inc. v. Gov't of Gabon, 709 F. Supp. 2d 1274, 1280 (S.D. Fla.
2010). The regulation requires that a "Notice of Suit ... shall be
prepared in the form that appears in the Annex to this section [and
that] a party shall in every instance supply the information in
items 1 through 5 of the form appearing in the Annex to this
section."

22 C.F.R. § 93.2(a), (b).

Items 1 through 5 of the

Annex form require the serving party to supply the following
information:
1.
2.
3.
4.
5.

Title of legal proceeding; full name of court;
case or docket number;
Name of foreign state...concerned;
Identity of Other Parties;
Nature of documents served (e.g., Summons and
Complaint; Default Judgment);
Nature and purpose of the proceedings; why the
foreign state ... has been named; relief
requested....

Id. at § 93.2 (Annex).
Once a defendant contests the adequacy of service of process,
the burden is on the plaintiff to establish the validity of

11

service.

Aetna Bus. Credit v. Universal Decor, 635 F.2d 434, 435

(5th Cir. 1981); Sys. Signs Supplies v. United States Dep't of
Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
C.
Mindful of the plaintiff's obligation to strictly comply with
these mandatory protocols, the Court turns to the issue of whether
the plaintiff can establish the validity of service on the Holy
See. Because the plaintiff failed to serve a copy of the operative
complaint, the Holy See contends that the attempted service of
process failed to comply with Rule 4(c)(1) of the Federal Rules of
Civil Procedure, and that service failed to strictly comply with 28
U.S.C. § 1608(a).

The Court agrees.

An "amended complaint supersedes the original complaint and
renders it of no legal effect."

King v. Dogan, 31 F.3d 344, 346

(5th Cir. 1994); see also Vadas v. United States, 527 F.3d 16, 22
n.4 (2d Cir. 2007).

Where "an amended pleading supersedes the

original complaint, subsequent service of the superseded prior or
original pleading is improper."

Gilles v. United States, 906 F.2d

1386, 1390 (10th Cir. 1990); Gellert v. Richardson, No. 95-256-CIVORL-19, 1996 WL 107550, at *2 (M.D. Fla. Jan. 26, 1996), aff'd, 124
F.3d 1299 (11th Cir. 1997)("Serving a complaint which has been
superseded with the summons on a defendant after filing an amended
complaint is not proper service of process.").

Simply put, Rule

4(c)(1) requires that a summons be served with a copy of the

12

complaint, and "service of a superseded complaint with the summons
does not fulfill the requirements of the rule."
4A

FED.

PRAC.

&

PROC.

CIV.

§

1093.

Wright & Miller,

Notwithstanding

these

undisputed principles, the original complaint was served on the
Holy See three months after the plaintiff filed his amended
complaint.

Plaintiff failed to comply with Rule 4(c)(1).

Likewise, the plaintiff's attempted service of process failed
to strictly comply with the FSIA's service requirements in 28
U.S.C.

§

1608(a)

because

the

plaintiff

failed

to

serve

the

operative amended complaint, did not serve a translation of the
operative complaint, and failed to provide a notice of suit that
accurately described the plaintiff's lawsuit.
The plaintiff does not dispute his failure to serve the
amended

complaint,

but

counsel

nevertheless

pleads

that

"[p]laintiff honestly believes that the service on Defendant Holy
See was completed in strict compliance with" the FSIA's service
requirements.3 Counsel's honest (and less than skillful) belief is
irrelevant.

Strict compliance is the standard.

3

It was not met.

The plaintiff invokes Baker v. Socialist People's Libyan
Arab Jamahirya, 810 F. Supp. 2d 90 (D.D.C. 2011) for the
proposition that no separate service of an amended complaint is
required when no new claims are asserted in an amended complaint.
Putting aside the parties' dispute as to whether new claims are
asserted in the amended complaint, the plaintiff's reliance on
Baker is useless because, in Baker, the district court considered
the distinct issue of whether re-service of the amended complaint
was required on an already-served defendant that had failed to
appear, which implicated Rule 5(a)(2).
13

Nevertheless,

the

Court

will

indulge

the

plaintiff's

alternative request that a second opportunity be allowed to effect
service on Holy See.

The Court will allow the plaintiff 45 days to

attempt service, so long as the plaintiff commences his efforts
immediately

and

makes

every

effort

to

complete

service

expeditiously. The Court will not be lured into counsel's repeated
self-inflicted deficiencies.
II.
The Court now takes up the parties' competing views concerning
the appropriateness of conducting discovery under the circumstances
presented, where the plaintiff will attempt to properly serve the
Holy See.

The Diocese, Archdiocese, and Bishop Provost contend

that they should be permitted to engage in discovery now, "limited"
to the issue of prescription.4

The plaintiff and the Holy See

disagree; the plaintiff contends that a stay of discovery, pending
resolution of the Holy See's defense of foreign sovereign immunity,

4

Defendants' request, tempting as it may be in the abstract,
presumes that a fair limiting principle can be articulated and
observed. The plaintiff counters that no judicial economy would
be served by allowing discovery directed only to prescription.
To the contrary, the plaintiff contends, bifurcation of discovery
would be impractical, in light of the plaintiff's detailed
allegations implicating defendants in concealment, such that
resolving whether the plaintiff's claims are time-barred are
inextricably intertwined with other disputed facts; and, by way
of example, identifying potential issues of fact that cannot be
resolved absent a hearing, the plaintiff will rely on expert
testimony to support his tolling argument based on repressed
memory. The Court wishes to stress to all counsel the mandate of
28 U.S.C. § 1927.
14

is warranted.

The Holy See, which obviously has no obligation to

participate in discovery unless and until the service issue (and
its presumptive immunity) is resolved, suggests that it takes no
position on the issue of discovery amongst the other parties.
However, the Holy See expresses concern regarding whether discovery
among the plaintiff and other defendants might prematurely entangle
it in litigation prior to a determination as to its immunity; the
Holy See points out that the issue of whether foreign sovereign
immunity

includes

protection

from

being

drawn

into

discovery

targeting third parties is currently pending before the United
States Supreme Court.

See Republic of Argentina v. NML Capital,

Ltd., 695 F.3d 201 (2d Cir. 2012), cert. granted, 134 S. Ct. 895
(Mem.)(Jan. 10, 2014)(No. 12-842).5

This concern appears well-

founded,6 especially where, as here, the plaintiff alleges that the
Holy See's co-defendants are agents of the Holy See. In light of
the Court's discretion in managing discovery, the Court finds that
a stay of discovery pending resolution of the Holy See's defense of

5

In NML Capital, the Second Circuit held that because the
district court ordered only discovery, not the attachment of
sovereign property, and because that discovery was directed at
third-party banks, Argentina's sovereign immunity was not
infringed. In the amicus brief filed by the U.S. Solicitor
General, the Executive Branch advances the position that
discovery directed at third parties "may burden the foreign state
itself" and raises the same "significant comity, reciprocity, and
other foreign-relations concerns" as discovery against a foreign
state itself.
6

No other party addresses this issue.
15

foreign service immunity is appropriate; the issue may be revisited
as circumstances change, if the Holy See is ever properly brought
before this Court.
Accordingly, the Holy See's motion to dismiss is GRANTED
without prejudice to the plaintiff being permitted to attempt
service within 45 days; the motion for limited discovery filed by
the Archdiocese, the Diocese, and Bishop Provost is DENIED, and the
plaintiff's motion to stay discovery is GRANTED, but the stay may
be lifted if a supported request is timely filed, fully briefed,
and granted by the Court.
New Orleans, Louisiana, April 2, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

16