Joseph v. Corporation of the President Church of Jesus Christ of Latter-Day Saints et al

Filing 20

Joseph v. Corporation of the President Church of Jesus Christ of Latter-Day Saints et al

Doc. 20

Case 4:06-cv-04143-JES

Document 20

Filed 10/06/2006

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION FERRIS JOSEPH, Plaintiff, vs. CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, and CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF LATTER-DAY SAINTS, a Utah corporation sole, Defendants. COME NOW Defendants, Corporation of the President of The Church of Jesus Christ of Latter-Day Saints, a Utah corporation sole, and Corporation of the Presiding Bishop of The Church of Latter-Day Saints, a Utah corporation sole, (collectively "Defendants" or "The CHURCH") by and through their attorney of record, and for their Answer to the Complaint of Plaintiff Ferris Joseph state and allege as follows: 1. The Defendants deny each and every matter, thing, and allegation in Plaintiff's ANSWER OF DEFENDANTS CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, A UTAH CORPORATION SOLE, AND CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF LATTER-DAY SAINTS, A UTAH CORPORATION SOLE CIV. No.06-4143

Complaint except those which are hereinafter specifically admitted and remit Plaintiff to the strict proof thereon. 2. 3. Plaintiff's Complaint fails to state a claim upon which relief may be granted. Answering paragraph 1 of the Complaint, Defendants are without sufficient

information to admit or deny the allegations of this paragraph. 4. paragraph. Answering paragraph 2 of the Complaint, Defendants admit the allegations of this

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Case 4:06-cv-04143-JES

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5.

Answering paragraph 3 of the Complaint, Defendants admit that Plaintiff alleges

the amount in controversy exceeds $75,000 and admit that the action is between citizens of different states. 6. Answering paragraph 4 of the Complaint, Defendants admit that based upon the

allegations in the Complaint, venue appears to be proper in this court. 7. Answering paragraph 5 of the Complaint, Defendants admit that Plaintiff is a

Native American born in July 1955. Defendants are without sufficient information to admit or deny the remaining allegations contained in this paragraph. 8. Answering paragraph 6 of the Complaint, Defendants admit that some members

of Plaintiff's family were members of The CHURCH and Plaintiff was baptized in The CHURCH when he was approximately nine years old. Defendants are without sufficient information at this time to admit or deny the remaining allegations of the paragraph. 9. Answering paragraph 7 of the Complaint, Defendants are without sufficient

information at this time to admit or deny these allegations contained in this paragraph. 10. Answering paragraph 8 of the Complaint, Defendants admit that missionaries of

The CHURCH are volunteers who are assigned to missions located across the country and the world. Defendants further admit that the missionaries preach the gospel of The CHURCH, typically in pairs and commonly walk door to door in residential neighborhoods. Defendants further admit that the missionaries are trained by The CHURCH. Defendants deny the remaining allegations contained in the paragraph. 11. 12. 13. 14. 15. 16. Answering paragraph 9 of the Complaint, Defendants deny these allegations. Answering paragraph 10 of the Complaint, Defendants deny these allegations. Answering paragraph 11 of the Complaint, Defendants deny these allegations. Answering paragraph 12 of the Complaint, Defendants deny these allegations. Answering paragraph 13 of the Complaint, Defendants deny these allegations. Answering paragraph 14 of the Complaint, Defendants deny these allegations.

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17.

Answering paragraph 15 of the Complaint, Defendants are without sufficient

information at this time to admit or deny these allegations. 18. 19. 20. Answering paragraph 16 of the Complaint, Defendants deny these allegations. Answering paragraph 17 of the Complaint, Defendants deny these allegations. Answering paragraph 18 of the Complaint, Defendants are without sufficient

information to admit or deny the allegations contained in this paragraph concerning the Plaintiff's state of mind and therefore deny the same. Defendants deny the remaining allegations of the paragraph. 21. 22. 23. Answering paragraph 19 of the Complaint, Defendants deny these allegations. Answering paragraph 20 of the Complaint, Defendants deny these allegations. Answering paragraph 21 of the Complaint, Defendants incorporate the answers it

made to paragraphs 1 through 20 of the Complaint. 24. Answering paragraph 22 through 28, Defendants deny these allegations. FIRST AFFIRMATIVE DEFENSE 25. Plaintiff's Complaint is barred in whole or in part by the applicable statute of

limitations or the equitable doctrines of waiver, estoppel, and laches. SECOND AFFIRMATIVE DEFENSE 26. Defendant Corporation of the Presiding Bishop of The Church of Jesus Christ of

Latter-day Saints, a Utah corporation sole, is not a proper party defendant in this matter. THIRD AFFIRMATIVE DEFENSE 27. The injury and damages, if any, sustained by Plaintiff were caused solely by the

negligence or culpable conduct of an entity or individual other than Defendants. FOURTH AFFIRMATIVE DEFENSE 28. Defendants owed no fiduciary duty to Plaintiff. FIFTH AFFIRMATIVE DEFENSE 29. Plaintiff has failed to mitigate or minimize his damages, if any.

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SIXTH AFFIRMATIVE DEFENSE 30. No vicarious liability can be imposed upon these Defendants for any acts or

admissions of any other person in connection with this matter. SEVENTH AFFIRMATIVE DEFENSE 31. This Court lacks subject matter jurisdiction over the Defendants and this lawsuit

violates their rights under Amendments I, V and XIV of the United States Constitution, Article VI, Section 3, of the South Dakota Constitution, and federal and state law. EIGHTH AFFIRMATIVE DEFENSE 32. The Complaint fails to join persons needed for a just adjudication of the claims

set forth in the Complaint as required by Rule 19 of the Federal Rules of Civil Procedure. NINTH AFFIRMATIVE DEFENSE 33. No vicarious liability of any kind can be imposed upon the Defendants for any

acts or omissions of any other persons or persons. TENTH AFFIRMATIVE DEFENSE 34. To the extent that Plaintiff may be entitled to recover any damages against the

Defendants, which Defendants expressly deny, Defendants are entitled to an offset for an amount they have previously paid for treatment of injuries alleged in the Complaint. WHEREFORE these Defendants pray that Plaintiff's Complaint be dismissed, that Plaintiff takes nothing by reason of this Complaint, that these Defendants be awarded their fees, costs, and disbursements, and such other and further relief as the Court may deem just and equitable.

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Dated this 6th day of October, 2006. McMAHON LAW OFFICE, P.C. ___/s/ James E. McMahon____________ James E. McMahon 101 North Phillips Avenue Wells Fargo Building, Suite 408 Post Office Box 1293 (mailing address) Sioux Falls SD 57101-1293 [phone] Jonathan A. Kobes MURPHY, GOLDAMMER & PRENDERGAST, L.L.P. 101 North Phillips Avenue Wells Fargo Building, Suite 402 Post Office Box 1728 (mailing address) Sioux Falls SD 57101-1728 [phone] Attorneys for Defendants JURY DEMAND DEMAND IS HEREBY MADE FOR A TRIAL BY JURY. CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 6th day of October, 2006, a true and correct copy of the foregoing Answer of Defendants Corporation of the President of The Church of Jesus Christ of Latter-Day Saints, a Utah corporation sole, and Corporation of the Presiding Bishop of The Church of Latter-Day Saints, a Utah corporation sole, the above-entitled matter was served by first class mail, postage prepaid and electronically filed to: Stephanie E. Pochop Johnson Eklund Law Office Post Office Box 149 Gregory, South Dakota 57533 Jeffrey M. Herman Stuart S. Mermelstein Adam D. Horowitz Herman & Mermelstein, P.A. 18205 Biscayne Boulevard, Suite 2218 Miami, FL 33160 _/s/ James E. McMahon________________ James E. McMahon

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