Doe v. Holy See et al

Filing 74

ORDER & REASONS denying 69 Motion for Judgment on the Pleadings. Signed by Judge Martin L.C. Feldman on 10/9/2013. (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 Most Reverend Glen J. Provost's motion
for judgment on the pleadings.

For the reasons that follow, the

motion is DENIED.
Background
This case arises out of troubling allegations that a Catholic
priest sexually abused a pre-adolescent parishioner, and that
leadership within the Roman Catholic Church concealed and coveredup the sexual abuse.
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
in 1992, when Doe was just 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

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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
the harm to the plaintiff and the concealment effort was part of a
civil conspiracy to keep the rampant sexual abuse in the church a
secret; the defendants committed fraud in their concealment of
Broussard's
defendants

sexual

misconduct;

negligently

employed

the

Archdiocese

Broussard,

failed

and

Diocese

to

provide

reasonable supervision, failed to investigate, used deception to

1

According to the plaintiff, in March 2012, 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.
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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.
On April 24, 2013 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.

One month later, 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; the Diocese requested dismissal of the punitive
damages claims asserted against it.

Thereafter, the Court granted

the plaintiff's motion to reset the submission date on the Bishop's
and Diocese's motion.
leave

to

file

an

Meanwhile, the plaintiff filed a motion for

amended

complaint,

which

was

noticed

for

submission before the magistrate judge. On July 24, 2013 the Court

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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 plaintiff's claims be dismissed, pending the
outcome of the plaintiff's motion to amend his pleadings set before
the magistrate judge.
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; 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."
Now that the plaintiff's amended complaint has been filed into
the record, Bishop Provost now renews his motion for judgment on
the pleadings.

I.

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Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Thus,

in

considering

a

Rule

12(b)(6)

motion,

the

Court

“accepts ‘all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.’”

See Martin K. Eby Constr. Co.

v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).

But, in

deciding whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.

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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”
678.

Assuming

the

veracity

of

the

well-pleaded

Id. at
factual

allegations, the Court must then determine “whether they plausibly
give rise to an entitlement to relief.” Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted).

“A claim has facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted

unlawfully.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

“Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to

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relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.”

Funk v. Stryker Corp., 631 F.3d 777, 783 (5th

Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
II.
Bishop Provost contends that the allegations of the complaint
should be dismissed against him for the same reasons as the
plaintiff's

claims

were

dismissed

against

Archbishop

Aymond.

Bishop Provost notes that he was not chosen as Bishop until 2007 -more than 15 years after the alleged sexual abuse by Broussard.
Bishop Provost also contends that the plaintiff has failed to
allege that he is a cause-in-fact of his injury.
The plaintiff responds that, in filing the amended complaint,
the plaintiff has cured previously defective pleadings and now

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states plausible claims for relief.

The plaintiff contends that

"the factual content in the amended complaint allows the Court to
draw a reasonable inference that Bishop Provost is liable for
misconduct based on various claims, including fraud and fraudulent
concealment and intentional infliction of emotional distress and
violations against customary international laws."
Bishop Provost's motion for judgment on the pleadings is
sparsely-supported.

In fact, it appears more targeted to the

plaintiff's original complaint, which contained significantly less
alleged factual material and had failed to specifically implicate
Bishop Provost in any particular activity for which liability could
attach.

Now, however, the plaintiff has added factual material,

specifically alleging that: Bishop Provost was appointed by Holy
See as its agent and governing official of the Diocese in 2007,
requiring him to follow the Holy See's 1962 policies for handling
allegations of sexual abuse; Bishop Provost was mandated to the
highest level of secrecy; the 1962 policies mandated no-reporting
of child sexual abuse; Bishop Provost covered up the allegations
regarding Broussard's sexual abuse; Bishop Provost concealed the
fact that Broussard had confessed in 1998 to his child sex crimes
and

concealed

the

fact

that

the

transcripts

containing

his

confession had been concealed in Broussard's personnel file in the
Diocese; Bishop Provost concealed his knowledge and information
that plaintiff and other boys were victimized by Broussard; Bishop

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Provost never acted on his knowledge of Broussard's sex crimes, or
his

knowledge

regarding

plaintiff's

claims,

but

instead

held

Broussard out to be a retired priest of high moral character;
Bishop

Provost's

plaintiff's

acts

injuries

from

plaintiff's treatment.
contends

that

he

and

omissions
2007

to

concealed

March

2012,

the

cause

which

of

delayed

Based on these allegations, the plaintiff

has

stated

claims

for

fraud,

fraudulent

concealment, intentional infliction of emotional distress, as well
as violations against customary international laws.
The defendant's motion does not address any of these alleged
claims, let alone any of the newly-added factual allegations
asserted against Bishop Provost.

Rather, the defendant seems to

continue to challenge the sufficiency of the allegations of the
original complaint; even the plaintiff admits the allegations
previously

advanced

were

technically

deficient:

in

the

prior

pleading, the plaintiff generically referenced "The Bishops";
failed to attempt to allege an explanation for linking Broussard's
sexually abusive conduct from 1986 to 1994 to Bishop Provost, who
did not become a Bishop until 2007; and otherwise failed to clarify
precisely what sort of substantive claims he was asserting.
the plaintiff has amended his pleadings.

But

The 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

9

is

plausible

on

its

face.

Accordingly, Bishop Provost's motion for judgment on the pleadings
is DENIED.

New Orleans, Louisiana, October 9, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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