Shovah v. Mercure et al
Filing
105
OPINION AND ORDER denying 90 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge William K. Sessions III on 9/3/2013. (law) (Main Document 105 replaced on 9/3/2013) (law).
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Michael Shovah,
Plaintiff,
v.
Gary Mercure, The Roman
Catholic Diocese of Albany,
New York, Inc.
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Case No. 2:11-cv-201
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Defendants. :
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Opinion and Order
Michael Shovah alleges that Gary Mercure, a former priest
from the Roman Catholic Diocese of Albany New York, Inc. (the
“Diocese”), engaged in sexual exploitation and abuse of children
in violation of 18 U.S.C. §§ 2422 and 2423.
Shovah claims that
the Diocese breached its fiduciary duty to Shovah by permitting
Mercure to hold himself out as a Roman Catholic Priest and
negligently supervised Mercure, which facilitated Shovah’s
abuse.
Shovah also claims that the Diocese’s conduct was
outrageous and caused Shovah to suffer extreme emotional
distress.
The Diocese moves to dismiss the claims against it
for want of personal jurisdiction.
Mot. Dismiss, ECF No. 90.
For the reasons explained below, that motion is denied.
Background
Gary Mercure served as a priest for the Diocese.
¶ 8, ECF No. 1.
Compl.
Shovah alleges that Mercure transported him
from New York to Vermont with the intent to engage in criminal
sexual activity with the Plaintiff.
Id. ¶¶ 15-17.
The Diocese
did not sanction, sponsor, or authorize Mercure’s trip to
Vermont.
Farano Aff. ¶ 23, ECF No. 90-1.
The Diocese of Albany (“Diocese”) is a New York special act
corporation created under the New York Religious Corporations
Law and maintains its principal office in Albany.
Compl. ¶ 7;
Farrell Aff. (April 26, 2013) ¶ 11, ECF No. 90-4.
The Diocese
territory overlaps with fourteen New York State counties.
Farrell Aff. ¶ 11.
The Diocese does not own any real property,
maintain an office, or possess any financial accounts in
Vermont.
Id. ¶¶ 4-6.
The Evangelist serves as the weekly newspaper of the
Diocese and maintained an average weekly circulation of over
46,000 copies between 2002 and 2012.
90-5.
Blain Aff. ¶ 3, ECF No.
A total of 40 Vermonters received The Evangelist during
the same period.
Id. ¶ 4.
Between 2002 and 2012, 235
Vermonters gave philanthropic gifts totaling $56,305.00, which
represents 0.080 percent of all monies received by the Diocese
during that period.
Prindle Aff. ¶¶ 5-6.; List of Gifts from
Vermont Residents, ECF No. 92-4.
In the same ten years, the
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Diocese utilized at least six Vermont vendors, see Vendor Lists,
ECF No. 92-3, and twelve Vermont students were enrolled in
Diocesan schools.
See List of Vermont Children Enrolled in
Diocese Schools, ECF No. 92-6.
Priests incardinated to the Diocese of Albany conducted a
number of services in Vermont between 2002 and 2012.1
¶¶ 5-6, ECF No. 90-2.
Doyle Aff.
From July 2002 to February 2009, the
Diocese permitted Father Zelker, a priest at St. Mary’s Parish
in Granville, New York, to celebrate a Sunday morning Mass at
the St. Frances Cabrini Church in West Pawlet, Vermont.
Aff. (June 12, 2013) ¶ 8, ECF No. 93-2.
Zelker
When he announced the
arrangement, Kenneth Angell, the Bishop of Burlington, explained
that Father Zelker’s role had been authorized by Howard Hubbard,
the Bishop of Albany.
Letter from Kenneth Angell, the Bishop of
Burlington, to the St. Frances Cabrini Parish (June 27, 2002),
ECF No. 103-1.
At the end of 2008, Bishop Hubbard wrote to
Salatore Matano, Angell’s successor as Bishop of Burlington, to
explain that the Albany Diocese’s pastoral planning process had
recommended “that [the Albany Diocese] not continue to staff St.
Frances Cabrini Parish in West Pawlet of the Burlington
1
Incardination creates a bond between a cleric and a canonical
institution. Aff. Francis Morrisey, ¶¶ 2-3, ECF No. 93-1.
“Incardination determines to whom a cleric is accountable.” Id.
¶ 5. A priest can only be incardinated into one canonical
institution at a time, which means that a priest must be
excardinated at one Diocese before he is incardinated at
another. Dep. Msgr. John McDermott, 49:15-49:25, ECF No. 92-14.
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Diocese.”
Letter from Howard Hubbard, Bishop of Albany, to
Salvatore Matano, Bishop of Burlington (Dec. 30, 2008), ECF No.
103-5.
In addition to Father Zelker, thirteen priests from the
Diocese of Albany conducted at least sixteen services of worship
in Vermont between 2002 and 2012.
Pl.’s Mem. in Opp’n, Ex. A.
Individual parishes within the Diocese had their own
contacts with Vermont.
Each parish in the Albany Diocese
constitutes a separate religious corporation.
Aff. (June 13, 2013) ¶ 3, ECF No. 93-3.
Farrell Reply
Pursuant to the New
York Religious Corporations Law, each parish is governed by five
trustees, which include the Bishop of Albany, the vicar-general
of the Diocese, the local pastor, and two laypersons of the
church.
Id. ¶ 4.
Each parish owns its real property,
establishes its own operating budget, relies on its own
parishioners for charitable contributions to support its budget,
and hires and supervises its own employees.
Id.
¶¶ 5-8.
In
sum, six parishes within the Diocese have employed a total of
eighteen employees who reside in Vermont and have served a total
of seventy-eight parishioners who reside in Vermont.
Costello Decl. (June 13, 2013) ¶¶ 8-25, ECF No. 93-4.
See
These
parishes are engaged in business dealings with a total of
twenty-one Vermont vendors and accepted advertisements from
eleven Vermont vendors for publication in church materials
between 2002 and 2012.
Id.
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DISCUSSION
On a Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of showing that the
court has jurisdiction over the defendant.
Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) (“The
burden of proving jurisdiction is on the party asserting it.”).
Where there has been limited discovery and the motion is being
decided without an evidentiary hearing, the plaintiff need make
only a prima facie showing of jurisdiction, through its own
affidavits and supporting materials.
Tom and Sally’s Handmade
Chocolates, Inc. v. Gasworks, Inc., 977 F.Supp 297, 300 (D. Vt.
1997).
Although the Court must resolve factual disputes in
favor of Shovah, it must accept as true any facts contained in
the Diocese of Albany’s supporting affidavits that he does not
dispute.
See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902
F.2d 194, 198 (2d Cir. 1990) (explaining that a Court may rely
on undisputed facts to establish jurisdiction).
To exercise personal jurisdiction over the Diocese, the
Court must determine (1) the Diocese is subject to service of
process under Vermont laws and (2) that the Court’s assertion of
jurisdiction under those laws comports with the requirements of
due process.
See Metro. Life Ins. Co. v. Robertson-Ceco Corp.,
84 F.3d 560, 567 (2d Cir. 1996).
Because Vermont’s long-arm
statute reflects a “clear policy to assert jurisdiction over
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individual defendants to the full extent permitted by the Due
Process Clause,” Id. at 567 (internal quotation omitted), the
two inquiries merge into one: whether the Court’s exercise of
personal jurisdiction over the Diocese satisfies the
requirements of due process.
The due process requirement for personal jurisdiction has
two components: the minimum contacts inquiry and the
reasonableness inquiry.
The first component “protects a person
without meaningful ties to the forum state from being subjected
to binding judgments within its jurisdiction.”
Co., 84 F.3d at 567.
Metro. Life Ins.
Courts differentiate between two types of
jurisdiction: “general or all-purpose jurisdiction, and specific
or case-linked jurisdiction.”
Goodyear Dunlop Tires Operations,
S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011).
In this case,
Shovah advances a theory of general but not specific
jurisdiction.
See Pl.’s Reply Mem. at *6, ECF No. 92.
The
second component of due process “asks whether the assertion of
personal jurisdiction comports with ‘traditional notions of fair
play and substantial justice’—that is, whether it is reasonable
under the circumstances of the particular case.”
Metro. Life
Ins. Co., 84 F.3d at 568 (quoting Int'l Shoe Co. v. State of
Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310,
316 (1945)).
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I.
General Jurisdiction
For a court to assert general jurisdiction over a
corporation, its contacts with the forum state must be “so
‘continuous and systematic’ as to render them essentially at
home . . . .”
Goodyear, 131 S. Ct. at 2851 (quoting Int'l Shoe,
326 U.S. at 317).
“There is no talismanic significance to any
one contact or set of contacts that a defendant may have with a
forum state; courts should assess the defendant's contacts as a
whole.”
Metro. Life Ins. Co., 84 F.3d at 570.
The Diocese of Albany’s direct contacts with the state of
Vermont have been limited.
The Diocese maintains no financial
or physical foothold in the state of Vermont; however, it does
distribute its weekly newsletter, The Evangelist in Vermont.
From 2002 to 2012, the Diocese has distributed the newsletter to
40 Vermont residents, a small fraction of the newsletter’s total
circulation.
Similarly, the Diocese has collected a total of
$56,305 in charitable donations from Vermonters, but that
represents about 0.080 percent of all of the contributions the
Diocese collected in those years.
Nonetheless, this Court must also consider the contacts of
Diocese priests with the state of Vermont.
An agent’s contacts
are imputable to the principal for the purposes of establishing
personal jurisdiction where “(1) the agent acted within the
scope of actual or apparent authority bestowed by the principal;
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or (2) the principal ratified the agent's actions after the
fact.”
Lakeside Equip. Corp. v. Town of Chester, 173 Vt. 317,
324, 795 A.2d 1174, 1180 (2002) (citing Myers v. Bennett Law
Offices, 238 F.3d 1068, 1073 (9th Cir. 2001)).
Between 2002 and 2010, priests acting with the actual and
apparent authority of the Diocese of Albany performed services
of worship in Vermont.
The Diocese permitted Father Zelker, a
priest incardinated with the Diocese and placed at St. Mary’s
Parish in Granville, New York, to celebrate Sunday Mass at the
St. Frances Cabrini Church in West Pawlet, Vermont between July
2002 and February 2009.
Official Church correspondence
indicates that the Bishop of Albany specifically authorized
Zelker’s part-time responsibilities at the St. Frances Cabrini
Parish.
Id.
That the arrangement was terminated at the request
of the Albany Diocese also indicates that the Diocese maintained
ultimate authority over Zelker, including his part-time
responsibilities in Vermont.
Because Father Zelker exercised
actual authority as an agent of the Albany Diocese, his contacts
with Vermont may be imputed to the Diocese.
Other priests from the Diocese of Albany travelled to
Vermont to perform services of worship between 2002 and 2012 on
a more sporadic basis.
Shovah cannot point to any facts showing
that these services were performed with the actual authority of
the Diocese; however, there remains the question of whether they
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were performed with apparent authority.
Apparent authority
"derives from conduct of the principal, communicated or
manifested to the third party, which reasonably leads the third
party to rely on the agent's authority."
Lakeside Equipment
Corp., 173 Vt. at 324 (quoting New England Educ. Training Serv.,
Inc. v. Silver Street P'ship, 148 Vt. 99, 105, 528 A.2d 1117,
1120 (1987)).
Referring to the Restatement (Second) of Agency,
the Second Circuit has explained that a principal “causes his
agent to have apparent authority by conduct which, reasonably
interpreted, causes third persons to believe that the principal
consents to have an act done on his behalf.”
First Fid. Bank,
N.A. v. Gov't of Antigua & Barbuda--Permanent Mission, 877 F.2d
189, 193 (2d Cir. 1989).
Furthermore, “[t]he appointment of a
person to a position with generally recognized duties may create
apparent authority.”
Id.
As such, the ultimate question is
not whether, under canon law, a priest’s actual authority to
perform a service derives from the Diocese of his incardination
or the Diocese where those services are performed; rather, the
question is whether a third party would reasonably believe that
these priests are acting as agents of the Albany Diocese when
they travel to Vermont to perform religious services.
Here, the Diocese’s incardination of its priests is
sufficient to establish a reasonable assumption on the part of
third-parties that the Diocese authorizes priests to perform
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services of worship.
Crucial is the fact that the particular
contacts at issue here are part of the priests’ core
responsibilities as officers of the church and the Diocese: the
celebration of religious services.
When a priest travels
outside of the Albany Diocese to perform a service, he remains
an officer of the Diocese and is ultimately responsible to it.
The Diocese argues that imputing these contacts to the Diocese
would interfere with its First Amendment right to shape its own
religious mission; however, applying jurisdictional standards
that are both neutral and generally applicable does not burden
the Diocese’s right to free exercise of religion.
See, e.g.
Employment Div., Dep't of Human Res. of Oregon v. Smith, 494
U.S. 872, 879 (1990).
Accordingly, the sixteen services of
worship conducted by thirteen priests from the Diocese of Albany
in Vermont between 2002 and 2012 are also contacts that can be
imputed to the Diocese.
Viewed together, the Diocese’s contacts with Vermont,
including the services of worship conducted by Zelker and other
Diocese priests between 2002 and 2012 are sufficiently
continuous and systematic to render the Diocese at home in
Vermont.2
The Diocese’s contacts with Vermont, particularly
Father Zelker’s weekly Mass at the St. Frances Cabrini Parish,
2
Because the Court finds that the priest contacts with Vermont are
sufficient contacts to establish general jurisdiction, the Court does
not address whether the Parish contacts may be imputed to the Diocese.
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reached a level where the Diocese could “reasonably anticipate
being haled into court” in Vermont.
Rudzewicz, 471 U.S. 462, 474 (1985).
Burger King Corp. v.
For this reason, the Court
finds that the Albany Diocese has sufficient contacts with the
state of Vermont for this Court to subject it to personal
jurisdiction.
II.
Reasonableness
This Court’s exercise of personal jurisdiction over the
Diocese must also comport with “traditional notions of fair play
and substantial justice.”
Int'l Shoe, 326 U.S. at 316.
Whether
or not the exercise of jurisdiction is reasonable depends on
five factors: “(1) the burden that the exercise of jurisdiction
will impose on the defendant; (2) the interests of the forum
state in adjudicating the case; (3) the plaintiff's interest in
obtaining convenient and effective relief; (4) the interstate
judicial system's interest in obtaining the most efficient
resolution of the controversy; and (5) the shared interest of
the states in furthering substantive social policies.”
Metro.
Life Ins. Co., 84 F.3d at 568; see also Burger King, 471 U.S.
462, 477.
The first factor, the burden the exercise of jurisdiction
will impose on the defendant, weighs slightly in favor of the
Diocese.
None of the Diocese’s records, files, or witnesses are
located in Vermont, see Metro. Life Ins. Co., 84 F.3d at 574
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(raising these considerations); however, the burden imposed on
the Diocese is not a great one because it is located close to
the forum state.
The second factor, the interests of the forum in
adjudicating the case, weighs strongly in favor of exercising
jurisdiction.
Vermont has a strong interest in providing legal
redress for abuse that occurs in the state, regardless of who is
involved.
See Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
776 (1984) (“A state has an especial interest in exercising
judicial jurisdiction over those who commit torts within its
territory.
This is because torts involve wrongful conduct which
a state seeks to deter.”).
The third factor, the plaintiff’s interest in obtaining
convenient and effective relief, weighs in favor of subjecting
the Diocese to suit in Vermont.
The Second Circuit has
previously held that this factor weighs in favor of asserting
jurisdiction if the opposite outcome would require the plaintiff
to bring a separate action in another forum to obtain relief.
See Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 245 (2d Cir.
1999).
Here, Shovah’s case against Gary Mercure will continue
in this forum.
Were the Court to determine that it did not have
personal jurisdiction over the Diocese, Shovah might be forced
to bring a separate action in New York to obtain relief.
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The fourth factor, whether the interstate judicial system’s
interest in obtaining the most efficient resolution of the
controversy, weighs slightly against subjecting the Diocese to
jurisdiction.
In evaluating this factor, courts look to “where
witnesses and evidence are likely to be located.”
Ins. Co., 84 F.3d at 574.
Metro. Life
Evidence relating to the underlying
abuse in this case may be found in Vermont; however, much of the
evidence that would establish the nature of Mercure’s
relationship with and supervision by the Diocese is likely to be
found in New York.
The fifth factor, whether there are substantive social
policies that would be furthered by permitting this case to be
heard in Vermont, seems relatively insignificant in the instant
case.
Neither side has alleged any particular societal benefit
or detriment created by the exercise of jurisdiction.
On the whole, the reasonableness of exercising personal
jurisdiction over the Diocese is a close call.
Nonetheless,
dismissals resulting from the application of the reasonableness
test are meant to be “few and far between.”
Co., 84 F.3d at 575.
Metro. Life Ins.
Because the Diocese’s case against
personal jurisdiction is cogent but not “compelling,” the Court
finds that the exercise of jurisdiction over the Diocese is not
unreasonable.
See Burger King, 471 U.S. at 477
(“[J]urisdictional rules may not be employed in such a way as to
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make litigation so gravely difficult and inconvenient that a
party unfairly is at a severe disadvantage in comparison to his
opponent.”) (internal quotation omitted).
CONCLUSION
For the foregoing reasons, the Court denies the Diocese’s
Motion to Dismiss, ECF No. 90.
Dated at Burlington, in the District of Vermont, this 3rd
day of September, 2013.
/s/William K. Sessions III__
William K. Sessions III
U.S. District Court Judge
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