Doe v. Holy See et al

Filing 124

ORDER & REASONS denying 120 Motion for Reconsideration. Signed by Judge Martin L.C. Feldman on 8/11/2014. (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 is the plaintiff's motion for reconsideration
of this Court's order denying his ex parte motion requesting more
time to complete service on the Holy See.

For the reasons that

follow, the motion is DENIED.
Background
The alleged facts of this priest sexual abuse case are more
completely set forth in this Court's April 2, 2014 Order and
Reasons.

Doe v. Holy See, No. 13-128, 2014 WL 1329985 (E.D. La.

Apr. 2, 2014).

What follows are the facts pertinent to resolving

the only issue presented now, which is whether the Court should
indulge yet another request by the plaintiff to extend his time to
effect service on the Holy See.
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 April 23, 2013 the
plaintiff requested that the Clerk of Court transmit his complaint

1

and other related service documents to the head of the Holy See's
foreign ministry pursuant to 28 U.S.C. § 1608(a)(3).

Two days

later, 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."
Three days after the Clerk of Court received notice that the
Holy See had refused the plaintiff's service, two other defendants,
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 had previously
dismissed the claims against Archbishop Aymond; and the Diocese
requested dismissal of the punitive damages claims asserted against
it.1

On June 4, 2013 -- the day his opposition papers were due --

the plaintiff filed an "emergency" motion to reset the submission
date on the Bishop's and Diocese's motion; in so doing, the
plaintiff insisted that an amended complaint would be forthcoming.2

1

On April 24, 2014, the Court granted Archbishop Aymond's
motion to dismiss the claims against him (as well as the claims
asserted against "the Archbishops" generally or Archbishop
Aymond's "predecessors and successors"); the Court also granted
the Archdiocese of New Orleans' motion to dismiss the punitive
damages claims asserted against it.
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.
2

The Court granted the plaintiff's request to delay the hearing.3
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.

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.
On July 24, 2013 the Court granted in part and denied in part
the

Bishop's

pleadings.4

and

the

Diocese's

motion

for

judgment

on

the

On August 21, 2013 the magistrate judge granted in

3

In granting the plaintiff's request to continue the
submission date, the Court instructed:
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.
4

The Court dismissed the punitive damages claim against the
Diocese, but denied, without prejudice, the Bishop's request that
the plaintiff's claims be dismissed, pending the magistrate
3

part and denied in part the plaintiff's motion for leave to amend
his complaint, and ordered that the plaintiff file his amended
complaint within 14 days.

The amended complaint was finally filed

on September 4, 2013.
The plaintiff did not attempt 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.
On February 4, 2014 Holy See requested dismissal of the
plaintiff's

lawsuit

for

insufficient

service

of

insufficient process, and lack of personal jurisdiction.

process,
The Holy

judge's disposition of the plaintiff's motion to amend his
pleadings. 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."
4

See contended that the attempted service of process failed to
comply with Rule 4(c)(1) of the Federal Rules of Civil Procedure,
and likewise failed to strictly comply with the mandatory protocols
for service under the Foreign Service Immunities Act, 28 U.S.C. §
1608(a).

This Court agreed; among other rulings contained in the

April 2 Order and Reasons, the Court granted the Holy See's motion
to dismiss.5

But the dismissal was granted without prejudice to

the plaintiff being permitted to attempt service again within 45
days "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."

See Doe, 2014 WL 1329985, at *6.

Fifteen days after the Court allowed the plaintiff 45 more
days to attempt service on the Holy See, the plaintiff requested
that the summons be issued.

On April 21, 2014 the Clerk of Court

dispatched the service packet to the Holy See's Secretary for
Relations with States as required under § 1608(a)(3).

On May 15,

the Court granted the plaintiff's request for more time to complete

5

The Court determined that, by serving the original
complaint that had since been superseded by the amended
complaint, the plaintiff failed to comply with Rule 4(c)(1).
"Likewise," the Court observed, "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." Doe v. Holy See, No. 13-128, 2014 WL 1329985, at *6
(E.D. La. Apr. 2, 2014).
5

service: "Plaintiff shall be allowed an additional 60 days to
complete service on Defendant Holy See.... No further delays will
be permitted."

On May 23, 2014, the service package was returned

to the Clerk of Court, marked "Refuse."

On May 27, 2014 the

plaintiff dispatched a second service packet to the Clerk of Court
in accordance with the requirements for service under § 1608(a)(4);
the U.S. Department received the plaintiff's request to complete
service on the Holy See on June 6, 2014.
The plaintiff filed yet another request to extend the deadline
to complete service on the Holy See.
denied the request.6

On July 17, 2014 the Court

The plaintiff now seeks reconsideration of

this Court's July 17 Order denying the plaintiff's request to
extend the time to complete service on the Holy See.
I.
A.
Rule 59(e) allows a court to alter or amend a judgment if the
movant can establish a manifest error of law or can present newly
discovered evidence.

Fed.R.Civ.P. 59(e).

The plaintiff asks this

Court to reconsider its order denying his latest request for more
time to effect service on the Holy See; he urges the Court to allow
an additional 90 days to complete service.

6

Meanwhile, as of July 18, 2014, two days after
imposed deadline for completing service had expired,
plaintiff submits that the U.S. State Department was
process of completing the procedures for serving the
could not indicate when service would be complete.
6

this Court's
the
in the
Holy See and

B.
It took nearly seven months for the plaintiff's first attempt
at

service

on

the

Holy

See

to

be

completed

(albeit,

non-

compliantly): three months after the complaint was filed, on April
23, 2013, the plaintiff requested that the Clerk of Court transmit
his original complaint and related service documents to the Holy
See; after the service documents were returned "refused" on May 20,
2013, the U.S. State Department received the plaintiff's request
for service from the Clerk of Court on July 19, 2013, service was
completed on December 6, 2013, but notice of completed service did
not

arrive

at

the

Clerk

of

Court

7

until

January

6,

2014.7

As this Court has previously observed, Section 1608(a)'s
service of process provisions are explicitly hierarchical: a
plaintiff must attempt service in the order required by the
statute. Magness v. Russian Fed'n, 247 F.3d 609, 613 (5th Cir.
2001)(Section 1608(a) of the Foreign Service Immunities Act "sets
forth the exclusive procedures for service on a foreign state).
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
7

Accordingly, the plaintiff urges the Court to allow an additional
90 days for the State Department to carry out its responsibilities
for completing service on the Holy See and delivering the notice of
the completed service to the Clerk of Court.

The plaintiff

protests that the Court's denial of his request for additional time
to effect service on the Holy See unfairly punishes the plaintiff
for the time it takes to comply with diplomatic service procedures
that are beyond his control.8
Accepting the plaintiff's argument at face value, the Court
should renounce as unfair any deadline this Court imposes to effect
service on a foreign sovereign. When the plaintiff failed to serve
the correct version of the complaint, the Court allowed 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 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).
8

The plaintiff contends that "[i]t would be a blatant
injustice if the U.S. State Department is not allowed to complete
Plaintiff's request or if this Court invalidates the service when
it is shown that the service was completed after the July 16,
2014 service deadline."
8

plaintiff an additional 45 days to effect service.9
four months ago.

That was over

And, when the plaintiff requested an additional

60 days when the 45-day deadline expired, the Court obliged.
the plaintiff seeks an additional 90 days.

Now

To be sure, if service

still has not been effected after 90 days, even more time will be
requested.
The plaintiff insists that, last time, when he served the
wrong complaint, the service process took about five to seven
months to run its course; he urges the Court to allot him the five
to seven months, again, for the process to be completed. But given
plaintiff's counsel's chronic deficiencies and penchant for delay,
this case is not an appropriate benchmark.
fails

to

cite

any

case

law,

this

Although the plaintiff

Court's

research

shows,

unsurprisingly, that courts generally impose and enforce more
reasonable deadlines on plaintiffs effecting service on foreign
sovereigns. That is, when service defects are readily curable, and
a plaintiff has taken substantial steps toward strict compliance
with FSIA service protocols, courts generally allow the plaintiff
a reasonable time, such as 30 or 60 days, to effect service.
O'Bryan

e.g.,

v.

Holy

See,

490

F.

Supp.

2d

826

(W.D.

See,
Ky.

2005)(finding that service of complaint on Holy See did not

9

The record suggests that, after this Court's April 2 order
issued, it took plaintiff's counsel 12 days to have the amended
complaint translated and the rest of the materials organized to
be dispatched for service.
9

strictly comply with FSIA, but allowing plaintiffs an additional 60
days

to

perfect

service);

Bank

v.

PT

Bank

Negara

Indonesia

(Persaro), No. 96-3201, 1997 WL 411465, at *5 (S.D.N.Y. Jul. 18,
1997)(denying motion to dismiss and allowing the plaintiff 90 days
to perfect service in compliance with the FSIA); Finamar Investors
Inc. v. Republic of Tadjikistan, 889 F. Supp. 114, 118 (S.D.N.Y.
1995)(finding service defective where plaintiff served the wrong
entity

in

the

wrong

language,

but

permitting

plaintiff

an

additional 60 days to perfect service under FSIA); Lucchino v.
Brazil, 631 F. Supp. 821, 827 (E.D. Pa. 1986)(allowing plaintiff 20
additional days to perfect service under FSIA); Resource Dynamics
Int'l, Ltd. v. Gen. People's Comm., 593 F. Supp. 572 (N.D. Ga.
1984)(court allowed plaintiff additional time to perfect service
under FSIA).
Had counsel made every effort to comply with the mandatory
protocols for service from the outset of this case, which was filed
on January 23, 2013, the plaintiff's position might be more
compelling.

Here, however, this case has been lingering on this

Court's docket due to plaintiff's counsel's chronic deficiencies.
The Court is not required to grant extensions ad infinitum.
await the next excuse.

And the next and the next.

To

Accordingly,

the Court declines the plaintiff's invitation to continue to extend
still another, a third deadline, with which the plaintiff and

10

counsel have had far more than ample opportunity for compliance.10
IT IS ORDERED: that the plaintiff's motion for reconsideration
of this Court's order denying his ex parte motion to extend time to
complete service on the Holy See is hereby DENIED. The plaintiff's
claims against the Holy See were dismissed on April 2, 2014, and
the plaintiffs' deadline for effecting service in strict compliance
with the FSIA has expired; the Court will promptly set a scheduling
conference.
New Orleans, Louisiana, August 11, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

10

More than a year has passed since the plaintiff first
attempted to serve the Holy See.
11